purchased and that the jury verdict finding a willful infringement should be free and stated and then i would like to tackle our arguments on literal infringement and prosecution history and stuff asked the d we disagree with the a couple fundamental paths down this process first and foremost as your owners are aware the start the starting process on an instrument motion is constructing and have a hypothetical claim and a hypothetical claim that would be broad enough to encompass the accused product now in this case the defendants the pelleas argue that the doctrine of equivalent subject matter that separated the accused product from the five five four patent was the connection method and their connection method in particular included two fasteners and a double layered connection so in construing a hypothetical claim that was broad enough to encompass this doctrine of equivalent subject matter the district court looked at just that connection method but the issue here is that the hypothetical claiming which is for most and spence and purposes similar to the five for patent is a combination of elements a lot of different elements  excused a product and in this case elevating the connection mechanism alone and to the disregard of all of the other elements improperly elevated one aspect of the have to submit a proposed hypothetical we did not submit a proposed have without a claim to the district court but we argue the hypothetical claim that the defendant submitted to the court and similar to the case of the recording of proof was on you to establish infringement don't you have the obligation to come up with a hypothetical or we have an obligation to come up with a hypothetical claim or to agree with the defendant so as far as the hypothetical claim that the court considers the the burden of proof of production of proving a prim that's correct your honor so the ultimate burden of persuasion rested with card to show that the hypothetical claim did not and snare the prior are therefore the dr not equivalent should not be limited now in this case we submitted evidence at first and foremost there was evidence that we submitted showing that the combination of elements was unique was something that was not in the marketplace and this was done by both the testimony of mr karr to the trial and the testimony  cherry picked testimony and said well all these individual elements on the steel channel pilings caught filling the dock segments with concrete the double your connection all these individual elements were in the art and therefore a combination would just be intuitive and the evidence that they submitted to the just record was the doc manual which is essentially an encyclopedia that shows different aspects of  would not have been off it would not have were unique and that's why the five per pattern was granted it's also why the hypothetical claim would not have been obvious because it is a good lesson not if you never present we presented the hypothetical claim after the jury verdict to the district court so we argued the hypothetical claim to the court as a matter of law but the evidence the factual testimony that the court relied upon in coming to this decision came from the jury right so even though even if you were right that you had mr karr's testimony when plans testimony why did the district court have to decide it was same burden of establishing an analysis or reason why the combination of elements would have been obvious why someone a person of ordinary skill in the art would have just known that all of these elements should be combined together obvious we also submitted secondary considerations showing copying and showing knowledge by the a pal the use of mr karr's patented design and that this evidence was evidence that the jury used for a finding of will infringement it is also secondary considerations that the district court should have used in determining obviousness of the hypothetical claim so it is evidence that can be used in both regards and it was not properly considered by the district of equivalent subject matter so it still would require some kind of articulation by both the appellee used and then by the de a strict court that would take all of these aspects of the accused product which for the most part are the same as the patented design and swap out the double layer connection again it comes back to why would someone of ordinary skill in the art make this combination we also argued before the district court that i'm sorry are you done the appeal that the district court should have found literal infringement because of the way that the claims or can should have been construed to the district court and that in the motions for summary judgment the five five four patent does not limit a sidewall to terminator and where the end wall in this case exists and so what happened in the accused product is that they took a wild plate and added that to the end of the side wall and thereby put an aperture in the well plate which would attack doc set which would attach doc segments it in different aperture that is attached the doc segments to a piling we argued that literal infringement could have been found in this case if the court would have construed the claims so that splitting an element into two different pieces does not avoid infringement we also argued to the district court in summary judgment and argue on the same time without that wasn't a necessary basis for the non infringement summary judgment just that as you clearly have a pretty good claim differentiation argument about about single bolt  but the basis for the non infringement or a sufficient basis for the non interest but assuming it's correct is simply that there is not a hole in the sidewall because the plate that attaches and juts out from the corner of the box is under this patent different from the side wall it's called something different your honor is correct i think it the decision and summary judgment as far as the literal infringement dealt with both primarily it was the side wall and the wel played in the court differentiated between the two and thereby found no literal infringement but we also did argue the aperture and made the argument of claim differentiation so you are correct i see that i'm in my rebuttal time i'm happy to address any other questions are i this is precisely the type of case that ensnare meant the fence was designed to prevent that type of infringement claim in this case the appears product for goes the use of one of the limitations of the claim and in this case like in the general american transportation case it's the very limitation that provided the patentability of the claims in the stead uses an alleged equivalent feature that was well known in the art both before filing of the application   focusing on the burden of production not the burden of persuasion that you didn't put enough in and while you put in evidence that the prior showed each of the elements of the hypothetical that everything plus the double ear connection you didn't the argument goes put in the kind of here's why somebody would have a motivation to put all these things together  why is that argument from we had a couple of arguments around and i think we did present more evidence than the burdens required we had two arguments we argued below that the doc manual itself which the district  agreed disclosed every limitation just didn't disclose them all and want to bottom and we argued that that should be anticipatory under the court's rules district court rejected that and instead found that the hypothetical claims are obvious why did the disposes in the doc manual so they say here are the types of docs we have a poll doc we have a permanent doc and then in a later chapter they say here the fasteners they say when you're using this book you can use a variety of these fasteners you get to pick and choose which of the fasteners to use when you build your pole dock or when you build your permanent dock and that alone we said was an actual expressed suggestion that you combine a limitation is not by naming the limitation and saying that the double or connection should be used with particular but by saying to the practitioner you pick and choose any of these solutions when you build your doc in the district court did cite that as a motivation to combine we are good alternative and this is straight from k s r that this is the type of case that obviousness is designed to handle a case where all of the limitations are known in the art or all of the limitations are used in the hypothetical claim in this case in the manner that they are intended to be used and that they have been used historically so they're not used in an unusual way court so it was lawyer analysis of the evidence analysis of the fact certainly nothing in the doc manual says expressly this double air connection has always been used this way and when you connect the dots segments using this public connection the at the time before the application was five i saw at the er cases that suggested that the only complication of the fused infringer was to bring in the prior or new to say here it is and then have the burden has approved for a long time it adopted a hypothetical claim one that we proposed but wasn't in the objection below there is an objection in the appellants briefing at this level but they don't propose any alternative hypothetical claim nor do they explain how the alleged errors in the hypothetical claim affect the district courts analysis of the district court then conduct the limitation by limitation analysis it didn't just discussed the double ear connection it discussed every limitation and found every limitation present there was no discussion by the appellant no criticism of that analysis and no discussion of any single limitation that wasn't present in the the prior art that meet the limitations of the hypothetical claim would not work for their intended purpose or that the prior art teachers away from the combination that we're discussing and all the mis calling mentioned secondary considerations there is no evidence below or  on appeal regarding any secondary consider for the amendment all we know is that the amendment narrowed the very specific limitation that is at issue in the doctrine of equivalence the district court disagreed with us but that disagreement was based upon the district court speculation about the reason for the that was in the extension that welded on extension of the double layer connection is not the sidewall and that support of the court said it wasn't the sidewall because the pattern itself addresses this type of an extension and calls it not the sidewall but calls that an overlapping member of the claims themselves support this when they say that the sidewalls in the end was form a cavity anything outside of that cavity would not be a part of the sidewalk the second basis for the court's determination that there's no literal yes your honour's but i would simply note that we did submit evidence to the district court which came in through the jury trial so again in the liturgy was not an issue to the jury trial we had infringement and as part of that process testimony came before the jury on a combination of elements during the trial it was a combination of the elements for the five five court patton but the jury also helped heard testimony about how the doctrine of equivalent subject matter was  whether the double ear connection whether the accused product had been seen anywhere in the market and the only l the only doc that includes all of these elements is either the five five four patent built by mr karr or the accused product built by mr cole there was testimony about other docs that had been built by other builders and or counting and that the combination of all of these elements is only present in these two docs and that this combination is what l that a combination would have been motivated by a person of ordinary skill in the hour so they did not submit a declaration of mr cole explaining why he combined these elements together they did not submit the declaration of any other expert nor did they