the next case for argument just seventeen one six zero one zero p versus nash manufacturing need factoring in the record evident shelves this has been in the business for over fifty years the evidence also shows that nash has developed many products in this field of the venture nonpolitical to get up out of the water into a water skiing position the parties talked about this in with the hypothetical while the weekender a  middle aged man perhaps just like myself who wants to enjoy water sports with his kids and because you are you saying that this case comes down to simultaneously engage to get up out of the water so for example if we go into the digital that i don't think that's dispute i think there are several things here that aren't disputed one is i don't think you're disputing this judge laurie pointed out that all of the individual elements existed in the prior art i didn't think that was an issue of dispute i thought what you should dispute was really whether or not that was an adequate motivation to combine those pieces of prior but there are no handles in the district court makes a finding from earlier in the prosecution of this patent when the claims were much more broad and where there were no hands and so the examiner made a finding that well any the way this claim is drafted clarke is not invalidating of of the du i think the it underscores that there is there is a disputed issue and certainly it's not it's not the province of the district court judge to call shots on that and if i can get back to one felt need i mean we have it in the record that this this defendant has been in the industry for fifty years and approaches up and says you have a great idea here participation in the udev are you talking about combining individual elements or to make something else i'm talking about very simply just the ability to get up out of the water when you water ski it requires a lot of  athleticism and strength and so this invention is born out of the inventor here glenn duff wanted full participation in this fun activity you know with his church group so that non athletic kids have led to kids they could all fully participate and so that's where this invention was born and it's simultaneous engagement of tobruk the side by side handles and the side by side foot bindings which the examiner here and again to seventy of the appendix made a finding that deserves deference that none of the prior are have these three elements to be simultaneously  ok to move on to the contribute try and frenchmen issue the district court apply the sony case the copyright sony case to hold that there is a substantial non believe strongly that the rico case applies this court's rico case which holds that a defendant cannot bundle infringing and not infringing components in this case the configuration of the verse the board which is the accused device in a manner with the tohu up with the side by side handles it with a side by side foot demonstrates direct infringement of claim nine six eighty one path and to distinguish something i would i would give the following example a user insomniac uses the device in the same way when he infringes early when he doesn't infringe he plugs in the v c r and he hits the record pop up we don't have that here what we have is use of the patent advice in a manner that this scene if we assume the seems like a good idea then it seems like your company thought it was a good idea or at least expressed that to your friend on the other side at some point isn't that well just because there's a long credit time that no one thought to combine this doesn't mean that it's not obvious something that's in the case law but with respect to the comment that was bait by my client i think it was they were starting a business rather than adopt the changes large or small which this patent made for the purpose of facilitating standing up right whether it's not an exact replica of the sub the us or the first aboard my client's board is not an exact replica of the it's not exact but it certainly isn't an exact replica of what's in the prior art so there were changes made that sick with told and the record helps to support in the direction of what this person did they say it took them four years o by side footing such and there's abundant references in the product it would that would suggest that there was a motivation there could be a motivation of the person or your skill to combine these limited a method of writing apparatus honey you use that total apparatus differently well i think that the plaintiff has to prove there is a substantial not infringing use in other words if there is not some in a in a different position that it's not infringing this is in fact the product on the face of it says do not put the handles on the board with the foot binding synastry in a side by side position because of safety concerns in rico there was an infringing drive there were infringing drives in a larger product with with some separable pete features but the but the defendant that case claimed that there was substantial not infringing use based solely on the additional features in this case the heart of the actual first aboard is the most the functionality and livability of all the parts it's not some product that is infringing product that's wrapped into not infringing features it's th around the apparatus claim and put on it and within the apparatus claimed claimed one there's a limitation regarding the rails which the defendant designed around so the only claim assert it so we have let's say we only had two pieces of evidence this defendant put in no evidence on secondary considerations and so under the law of this court in touch for evidence no testimony about secondary considerations and so that's a basis of reversal right there is the court if the court has out further questions happy