your morning your honour's please report when the district court concluded that the nine hundred and forty six patent was limited to the ornamental design shown in the drawings embodied in the chair the court violated the most fundamental principle of design patent law that the scope of the a design patent is what's shown in the drawing because a design patent contains no written description of the invention the drawings are the invention so if you're saying are you saying that if the claim language says what you're claiming which says which is something about and want to mental design of a pattern for a chair as illustrated in the figures you're saying we can just ignore those that phrase for a chair and so therefore your figures which show a pattern disinvited from any article thereby encompasses every article any possible article to which that design is applied well your honor i disagree with a fundamental premise of your question that the design shown in the drawings as well as the body from any article because if you look at the figures for example figure four which is a side view three dimensional figure not all of that is the ornamental design pattern it's a panel it's a structure that has the ornamental design pattern figures i mean if we look at i don't see how secure for provides any more structure than figures or in two or three well if you look at it from the side you're on and you see the the portions that look like they are projecting that that are the why they are on something the something has dimensions it has with its structure if you compare that to figure three which is a side view it has dimensions it's a three dimensional it's a three actually he the district court just said the title of your patent limits i'm let me start from the beginning yes what is the scope of your design pattern in your view is it any article t which this design is applied no it's it's an article that has this design in a as part of a structural in body mint for example if you had a design patent and the drawing showing if this water jug had this design on it this particular pattern on it would infringe your design pattern if that water jug you had that it might it might because even though this is not a chair that's correct ok so what what are we supposed to do i mean patents are supposed to have an important public notice function your title says for a chair your claim says for a chair each description of the individual figures says for a chair for a chair for a chair what are we supposed to make of that in terms of notice to the public part of the public notice function your honor is practitioners understanding what the law is if it was utility patent the practitioner would know the law of claim construction if its a design patent the same is true they would also know that that the  ordinary observer test for infringement of design patent is the same exact test used for anticipation now under in re glavis which is a presidential decision of this court anticipation is determined not by the article in which the prior art design is a model it could be any article and it's the same test as infringement what about it gyptian goddess which is the ordinary observer test we are controlled by our goddess opinion that came out a year ago which says you know is it so similar that an ordinary customer would be induced in buying a product thinking it is the patent owner's product and you know i really don't and i think we all concede that nobody would be purchasing the defendant's basket believing that it was a chair but the design shown in the drawings is the claim and it's not a drawings were portions of a chair i'd agree with you i know but i'm saying when we read the entire path which includes the actual claimed language associated with the figures in the claim language refers to a chair if we read the design pattern scope the same way the district court that is this particular ornamental design in the context of just shares then there is no dispute that the twelve b six was correctly granted is that right yes your honor if you limit this patent to the ornamental design shown in a chair and you have a now a nd design pattern for this very pattern where the claim says for a basket is that right i think i think they do ok but how come you're not using that one against the defendants baskets that i can't say are on instead we're using one for a chair against the defendants basket well it's we have to go back to the drawings what how how does the law make sense and then you say why why can't you say i'm just curious you say you can't say why the basket patent was not asserted to hear it why not i don't have an answer your honor and i've i was not really involved in the underlying litigation i don't have that answer i wish i did but i don't i d what about the there are a number of district court  there were three cases yeah and why don't we have the any case each one of those cases the article a manufacturer to use the district court's words that's listed in the pat was part of the claim design in the drawing so for example in disney it was a duck all shown in the drawings and the duck call was part of the claim design they found that the duck call made by the defendant was not similar enough why don't you depict a chair in your figures why don't you picked why do you not depict the context in which the design is the kid i mean as you said earlier it could cover a wider job why don't you have a context provided in your figures i can guess from the prosecution history around of what happened was this application was allowed on the merits prosecution was close and the title of it was funky if i can use that word it said furniture and then in parentheses part of an exam or said that kind of doesn't make sense how about chair and then the patent he accepted that and then the other parts of the patent were formalize to coincide with that but the application was allowed a ready so i would think that if the if the patent office thought the name the title of this application was relevant to plame skull they would have  encompasses every possible article that might have that very surface ornamentation no this is not in the abstract and the ink may may give an analogy if there were a design pat and the drawing showed a piece of fabric and the products were boots shoes socks pants jackets shirts that included that fabric they infringe even though none of those things are shown in the patent right now that's your interpretation of the law there's an counter interpretation of law which is that designs must be when you're claiming them in patent about the design has to be  within the context of an article of manufacture you keep don't just get a design of a fabric per se and then any and the particular kind of clothing that has that fabric that is covered by such a design and actually apple versus samsung says that the article manufacture need not be a complete product in the district court cited apple versus samsung in a footnote really didn't apply it and i believe this is this type of case  design patents and cover just a part of an overall device doesn't detract from the fact that that fabric for example is itself an article and article of manufacture probably did decide patent would have referred to they apply the same ordinary observer test you apply for infringement however when they looked for prior art designs in reg labs is very clear it's not limited to the particular article stated in the patent you can look at any article so under the century old maxim that which anticipates it before you know fringes if later how could it be limited to a chair non analogous arts can be into the story if non analogous are has the very design that's bing claimed in the design patent application i don't know if it is or it's not  claim defines the scope of the and that's the predominant principle i think you start with and that's what the district court here started with what the claim car which they claim as amended trying to understand fla was i don't know displayed in a painting or was known in that jacket art for a pattern on a jacket then it could be used that jacket could be used as  practice in practice if you look at the law as it's been applied for one hundred plus years you have no cases no cases supporting your parents argument here not one case conflict with the law as applied by this court and the supreme court and and at least the three district courts that have confronted the exaction i would concede that they're in conflict can i ask you do you think this problem that we have here where there's if you will a disconnect between the rich part of the claims and drawings and the disconnect between the title and all of that do you think that happens often i mean because i don't necessarily i don't know whether it happens often it seems to me it might not because lots of times the drawings will depict even if in  the context in which the design is ok did yeah i think that's right i think it doesn't come up that often you know again i from my perceived perspective as an advocate i think it's an extreme position to to to argue that what's you know shown in the figure if it's if it's just you know a panel some portion of the article manufacturers an extreme position to say well that is that that defines the claim would get about what but at the defines the invention that defines the scope of of the claim forget about the article of manufacture forget about what i said in the description that the article that the different views of the patent show i think that's an extreme position in so that's why i'm going to bounce up what about pacific coast which seems to talk in very direct and clear terms that when it comes to understand the scope of the design pattern you look just at the drawings it doesn't say anything or at least i don't think i saw anything that's that you look at the drawings in combination with and clean lines yeah i don't i don't read it that way fight i think what it says is you know you look at in that particular nobody argues argued that there was an issue under two hundred and eighty nine dollars of what the damages were what the scope of the remedies were but you were comparing a an article of manufacture against a patent for that article of manufacture what the court said what this court said was that you could look at the drawings certainly didn't determine you know what the what the design this of course you do that but there wasn't this this threshold issue of this being raised here which is can you can you have a patent directed to one article of manufacture being infringed by something is totally different so that's that's why i of st impression this court decided the prosecution history stop can apply look at what happened in prosecution and saw that there was an amendment to the claim initially there were multiple embodiments of the invention there was a screw stricture and the claim had to be amended in light of that restriction in the court took that into account in determining that amendment to the claim took that into account in determining the prosecution's history stoppel in fact applied and that's exactly what happened here not not in there want to menace to the drawings but there was an amendment to the claim that that in stead of saying furniture it said furniture part of a furniture patent office said that's not specific enough the applicant make it more specific to a specific article of manufacture or maybe that's what it requires when it says article of manufacture it means discreet they but i don't know why could it be this design on any category of furniture yeah if you with if that was the case then you have a problem right because well i guess we'd be into a question of what their baskets are from this we're not putting that aside  but that's not the issue in this case because the patent office objected and then they complied by changing it to a specific article of manufacture namely a chair maybe the patent office should have made them put it a specific articles like chair ottoman basket or could they just say all furniture and home excess arrays yeah i mean don't i don't know the answer you think it's i think it's probably do you think you could do you i'm sorry your honor it's because examiners need to somehow confine their prior art search and so that's why they look that's why they want something reduced down to something that's workable like maybe chairs or maybe ottomans or maybe something else and it's not and that and so therefore they don't want to have a prior art search that goes to everything and anything and they have to look that you know just like apparently happened here they have a patent office wants money a fee for each article of manufacture how they define articles manufacture and so if you want one for a chair you have to pay a fee for that you want one dollar for a basket you've got to pay us another fee for that you're not going to get both in and in one application the other questions that you to anticipate patents where the articles of manufacture were very different us whether that the concept of that which anticipates it before infringes its later is still the law of the two thousand and nine international seaway trading corp case of this court says it applies in the design patent context cases such as egyptian got a specific coast in rate daniels all say the claim is the drawing and there is no written description of the invention design patents section two hundred and eighty nine dollars the patent statute which we cited says that if the patent a design or any color rule imitation thereof is applied to any article manufacturer not just the one listed in the lattice structure and home depot or something and use it to build other things this is a structure that shown in the drawings of snotty disembodied from from the design they are part and parcel