thank you good morning your honor counsel may it please the court my name is randy kaye and i represent millennium laboratories appellant in this matter i will aim to reserve approximately three minutes for rebuttal this case present of a review of a summary judgment in favor of the defendant on the functionality element of a trade dress claim and then a companion seven thousand two hundred unfair competition claim functionality in a trade dress claim is deemed by the ninth circuit as intensely factual and we are looking at it today in the context of summary judgment on a record replete with many facts many material facts many of which are in dispute submitted by both sides in the district court in the context of separate statements of material facts to which each responded to the other and whether they were disputed or not this is going to be perhaps an off the wall question for both of you but i want to raise it i am puzzled about how this case you have to on this sole issue because one of the requirements of a trade dress claim is likelihood of confusion and i have a very hard time seeing how any consumer could possibly be confused where you have a one page chart with the name of the company prominently displayed at the top so houses are possible confusion about source and i guess the second half of the question is is there a way that we are permitted to reach that issue on this appeal thank you judge graber to answer the second question first i would submit the answer is no because the millennium had no notice and millennium did not  put into the record the evidence on the second or third element of the tradecraft claim the motion was brought up early in the case soley on functionality and millenniums soley responded to the functionality issue i guess it just strikes me as a really odd way to try the case but i guess that's not our problem if we're not the ones trying it so i submit that that is correct that we are not able to date to address likelihood of confusion or secondary meaning or any of the factors in the second and third elements of trade dress because millennium was not asked in the district court to have presented its disputed fact on those issues interestingly those issues do arise in the respondents appellate brief but they are immaterial to this appeal whether immaterial to the functionality analysis but they are not immaterial to the claim and so i guess maybe it's just my personal frustration that  there was not clear where the likelihood of confusion element on trade dress would come from but as i understand what you've said on the record there is no there is not a sufficient record on that point for us to make any judgment about it we could affirm on any grounds supported by the record but here the the record does not support that there's no likelihood of reservation asked why our panel should have to write the great american novel our great president on functionality if that's not going to end up in the crux of the case but let's go to that high and this point is it's a comment question and i've come through it on your side of the case so i understand how in this industry with people testing drug results that it's probably is maybe functional that someone report the report has a bell curve on results and has some linear data describing results  concept of giving that information may be functional but i have difficulty seeing why the the layout of of the chart will be functional then seems to me it could be could have trade dress elements and so this is really your side of the case don't know we have a fact issue whether the layout of the chart putting bell curve and the linear data side by side whether whether that is functional certainly as to the latter remark it is a fact question on this factual record and i would like to identify what we're talking about as the article under the quality text standard and what the claimed trade dress is because the article is not the claimed trade dress here the article under quality x is the medical drug test result what is the concentration level of the prescribe drug in the patient that output is a number that's the article we are looking at and then the question in the medical in the design in the report is what choices from a design perspective did millennia make and among bar chart plot graph bell curve table line graph rather than display a number millennium chose a fanciful leftside bell curve and rather than superimpose the historical on top of it which might be the default or ordinary let's look at the patient's history millennium displays it separately to the right with borders and with the square on the right historical chart of vertical line on the left no chart rather than a diamond in x a circle an oval all of the different ways one may depict visually what the number is the number being the article in what quality text and traffic's and in with labs dictate our a product feature is functional if it is essential to the use or purpose of the article and none of these design all amounts are essential to the use of the number of the drug test the drug test concentration level that can be displayed in any of these ways any combination of bell curve  line graph table superimposed let's go back to what a pediatrician looks that from decades ago for display of growth charts you have age on the bottom and you have side on the y a and there's a line showing the mean the fifty percent aisle and then usually there is great out the one standard deviation in two standard deviations in a line graph and then the pediatrician as the patient goes from two years old to three years old puts an x at the height and you can see is the tracking at the fifty percentile or the falling off the curve and i submit that would be the default is a single graph of any type and you put an x to do note the current test result here millennium came with a completely different view for doctors and i will address the early question about the likelihood of confusion when when america tucks adopted a very very similar look and feel to its design of the article which is the test result doctors who are the consumers here would identify that as a millennium report because a millen became known this is getting outside the core issue here which is functionality and fall attacks i would like to indicate also that the tramp heard of cases from the supreme court which in reconcile these cases together is the question is the trade dress a device like in off or is it decor like into pesos or in click billiards the pool hall decor or is it a publication format like here and like in the tools you tools us a computer care in hartford house cases which are fourth seventh and tenth circuit cases but the way in which one looks at the trade dress under the quality extender does depend in part on is the device subject to a utility patents in which case utilitarianism is going to a very different question versus a decor case vs a publication format because when you note that the article that issue here the medical result number is different from the design choice there's no way it can be said that the design choice is essential to the use of the article which is the only question before this court ultimately and i would like to address some of the disputed fast on these issues in particular millennium came forward with eleven facts it contended were disputed and material and in the next the provoker pages eighty eight and eighty nine in particular of the eleven i would point to fact one fact three through six in fact nine all of which are disputed by a meritocracy and they get to what is even claimed as the design that's disputed on this record and then there's all this evidence about a meritocracy internal records stating that no lenny mc fanciful design is of extremely limited utility inherently of little value does not assist in understanding a patien which is the issue and that the the america talks evidence also shows the bell curve is irrelevant to use of the reports yet the district court rejected all of that evidence that favors millennium and adopted the evidence from course in this case and if you do not feel that it's appropriate to answer you don't have to but i wonder whether this is a case that might benefit from the mediation services of the court  and whether you have any position on that question my answer would be potentially my client is here today and i am glad to talk with him and the answer is i will do that and coordinate  with america consul on that question and if both sides agree we will notify the ninth circuit ok finally i would like to mention the modocs metric ninth circuit decision from twenty fifteen earlier this year where five six seven where the ninth circuit states that the district court not addressing essentially ality when analyzing functionality the district court erred the ninth circuit panel discusses disc off and says those factors are legitimate considerations but the court cannot rigidly apply these factors and ignore quality access focus an essential ality which is exactly what the district court in this case  thank you made please the court my name is eric miller and i represent america talks the district court correctly determine if i may ask a question i'm concerned here that the district court in permissibly narrowed the scope of what she considered really focused on the graphs as opposed to the body of work as a whole and they did that in a situation where there's clear ninth circuit precedent that says normally functionality is something that's intensely factual so i'm concerned and just focused on those graphs and if there's merit to what i'm saying doesn't that by necessity require reversal on functionality that would it but with respect your honor i think that's not an accurate description of what the district court did  some evidence that shows that all of these elements together have some non functional purpose well not so the tests from disco if it seems to me aren't met there certainly are alternative designs available lots of them and that sort of unaesthetic choice the third factor seems not to be met there's advertising that says the graphs are useful but and maybe having them on the same page so you don't have to put two pages next to each other but there's nothing particular about side by side there'd be zero cost involved so i guess i have trouble seeing how the evidence viewed in that light most favorable to millennium meets the test as a matter of law well that and i think maybe it would help to step back for a moment and look at what the product is here and i think it's important  information that's exactly right and so why isn't this sort of just like quality checks where it's important to have the information while texas is support have a color but there's nothing special about grain you could use maroon you could use per ball you could use golden rod so why isn't it similar to that it's important the information but it's purely enough that it's not functional choice to have you know a minimalist presentation with little verbiage you know that is what makes it a graph rather than a block of text there they say that there's a border around it which is you know first of all we don't even have but secondly border is functional because it sets out the graph separates them from the rest of the tax text and the side by side presentation is simply a obvious way of combining functional elements in that respect it's very much like  court's decision and in waterman and see calls where you had devices that combined a bunch of functional elements on the plane i said well what with all the function all mixed together it has a particular appearance and we want to protect that and the said you can't do that because there's nothing on functional about the the combination of these elements and this would be a different case if they had used you know purple and green ink to draw their graph or if instead of a little squares on the plot they had smiley faces that are pictures of cats or something but all of the elements that they have claimed are the basic elements of what defines a graph and then the only evidence that they put in that there's functional and then genome writes the elements that set and what the district court you know said quite rightly is that you can't survive summary judgment simply by putting in a declaration that says in effect i agree with the complaint wait it may be that the district court failed to consider the remainder of her discussion in the paragraph which may not be conclusion that paragraph anything was to be read in conjunction with the previous one paragraph five which is district court did not consider in there it stated quote millenniums graphical format provides not only a representation of data generated by millenniums laboratory service but also was selected in the arranged in such a way as to provide a unique look and feel commensurate with lineaments market image as a cutting edge clinical laboratory in this in the record pages sixty six is sixty seven paragraph sixteen describes what about the presentation was the portion so it seems to me that the district court's while it may have been correct about the conclusion or it comments there were other portions of strickland declaration that i think the district court should have considered and if they had on summary judgment cases involving intent and case other kinds of cases that that seems like an odd argument that if you can have summary judgment there's something wrong if that's the exception not the rule it's bad for two reasons one i court's teaching and wal mart and what the court said there is that it is very important to protect free competition from the deterrent effect you know not just a successful of a geisha and but even an idea different context  a monopoly on the idea of graphical presentation of quantitative medical information and and i think you know given what that the statute imposes the burden on them this court has described as a heavy burden and simply putting in a declaration that says well we all know the look and use our own common sense in examining those and you know there are so many ways he could display this information top to bottom two different pages more tax last tax different colors different forms of graphing that all seem to me to be aesthetic choices and nonfunctional with respect to it it's not a static it's not because you know it looks pretty it's because it's a more efficient way of grasping the information and if i could address a couple of the points that you raised that the two different pages there is evidence in the record in this is a page one hundred seventy seven  of their employees recognized that doctors wanted to be on one page because it's easier to look at the two things side by side and i think when you look at what they point to as the evidence of alternatives it actually which uses a bar graph which again is an unnatural way of presenting a time series of data that the graphs that are used here are the most basic natural way of presenting this mission does your does your client have a position on whether mediation through our circuit mediation office would be of assistance to the parties and i think my answer is the same as if i'm on the other side we'd be happy to discuss it with our client and discuss with the other side  that yes we would be willing to explore that i've got a different question for you under the aesthetic cas you think that there truly are genuine issues of material fact as to whether the composite elements of the report format as a whole would impose a significant non refutation related competitive disadvantage and what i mean by that here in this case and based on the record i've looked at millenium is presented evidence  competitors including meritocracy would remain free to use the functional aspects of this dein including graphs they just could not use the overall design format which is millenniums traitorous and so again my concern is i think that the district court had blinders on and in permissibly narrow to what it considered but if you consider more then inevitably it seems to me there really are factual disputes regarding the aesthetic tests and  whether or not the first prong of the test regarding functionality is nonfunctional or functional i'm having trouble getting beyond that because you know i'm generally a trial judge so i'm the one that makes decisions and when i read this i had a reaction that this judge didn't look at the record the right way and i don't really care who wins or loses anything but it seems to me that his result is flawed because of the way he impermissibly narrowed what he considered i think that there are two answers to that your honor the first is we don't even need to get to the aesthetic test if it's functional under the under the basic and what definition and i would add to what i found quoted the language from from the central to the user purpose of the article the supreme court went on to say or if it affects the cost or quality of the article and so this is this is something that affects the quality of the report the graphical presentation makes it easier to grasp the information and so you know looking at the if we do look to the second part of the test which again we don't think this report had to whether there would be inhibition of competition is there a burden to show it and the only thing that they put in on that that the district court you know correctly looked at those statements and concluded that even considering the evidence in the light most favorable to the nonmoving party when you look at the statements in context it's quite clear that what tested a meritocracy is looking just at people who are clinically determines to be taking the appropriate amount of medication america talks is not that of doing that is covered by utility patent which is the on the subject of separate i think that when read fairly that there really isn't a genuine dispute as to what those statements meant what they meant is meritocracy data is of limited value not a graph is a limited value thank you thank you thank you god i'm sorry mr ken thank you except for problems just briefly the clicks billiard case has a very interesting phrase which in looking at functionality it says to look to the composite tapestry of visual effects and when you do that here looking at the stricken declaration all of the design choices and you consider that the product here is information drug test numerals the inescapable conclusion under quality x is that there was more than enough evidence to deny summary judgment and we urge the panel to reverse thank you thank you counsel the case just argued a submitted we appreciate very interesting arguments and helpful arguments from both counsel we will stand firm for this morning session