and suit are invalid is being anticipated should be reversed for at least three reasons first the district court failed to consider the entirety of the patent to designs were making the precedent of this court and third district court misapplied the ordinary observer test in finding anticipation going back to the first point the district court failed to consider the in considered because it was hidden from view when a person wears the shit the district court relied on to contests a case for supporting this statement and in fact contests it polls just the opposite in fact c s says that each part of the claim design must be considerate when compared to patent a design to the prior art insol design in this particular case is important it is novel it's ornamental earlier or to identify the points of novelty in the record and then you would determine whether those points of novelty appeared in the patent design right i and my next question that makes the absolutely sure the reason it makes sense is because the standard for anticipation is what has been established by this court's precedent in the dorm master case and in the to the earlier prior art you only looked at the alleged anticipatory reference in a utility that the door the answer is yes right i believe that you look did say that those two cases do employ the point of novelty and weight not the way you describe well if if i however i described before this is the law this is the existing precedent adopt the ordinary observer test as the sole test for into spaceship design pat you essentially have to worry observer test one four one zero two one four one zero three one zero three test for design patt obviousness is whether or not two designs in their overall appearance are substantially similar from the view of the designer of ordinary skill of the are informed by the parlor it doesn't three if we just look at the current test the girling case says that you look at two designs the alleged prior art in the patent design and it and you look at whether or not those two designs are substantially similar to a designer of ordinary skill in the art little to no design pattern in validity would now become solely you look at the two designs from an overall point of view you determine if there are substantially similar from the viewpoint of an ordinary purchaser was now which of the prior art we believe that those two tests would be bluer by district courts and juries alike because the two standards essentially but look at the overall configuration of the two and i think it's if you look at the district court's decision in this case you can see that blurring occur from page to page or on or you can see on one page the court is talking about whether or not the two designs are substantially similar from the viewpoint of a designer and at the very next page you'll see that the court talking about the two designs being substantially similar from a purchaser with knowledge of the prior art and we believe there would be blue ink we believe it albeit from the viewpoint of a purchaser with knowledge of the prior round and if you look at the test for invalidity under one of the three it's the same thing except that the viewpoint is going to be from a designer of were very skill now do you mean to tell me that a judge or jury sitting there trying to decipher whether or not something is invalid or applying a test for invalidity under one hundred to one of three and the only difference between the two is you look at the overall configuration but in one case you look at it from a hypothetical purchaser with knowledge of the prior art and the other one would look at it from a designer of ordinary skill in the r i would submit to you that there's that the two would troubles me looking beyond the minutiae test and so forth about the way this all is likely to function the real world or at least some risk of this it seems to me you could have the following situation you tell me why this is wrong of the commercial value of the design so prone to be comes up with a design that is very similar to design a chip that has some point of novelty but to an ordinary observer they would look the same but there's a point not that they can point to so they go to the patent office and they and examining at application that has the one point of novelty it might pass muster under one of two and even that's are all because it has to be a novel and feature with respect to the prior month basis it is ok but there's also one hundred three there's another hurdle that you have to pass when you're in the patent office and one of the three is a different test as we talked about it's the ordinary observer test as viewed from a designer border i would submit to you that the pat examiner and this happens i prosecute pets all the time and i prosecute design pens and i can tell you i've received many rejection under section one hundred three where you had just the case that you described where you have a design it's slightly different maybe has one or even two points of novelty the examiner doesn't reject it under one of the two but rather the examiner uses the un tool in his or her arsenal which is one of three that i could accept that standard would but i one of three test is going to be much more discriminating and finding differences that the ordinary observer won't find so something would be deemed to be different purposes of one hundred three and it would not be deemed to be different from the perspective of an ordinary observer so we would end up with the problem that i posit with respect to completely but i would turn it exactly around the test under one of the three when you have a designer of ordinary skill in the art the question becomes what a designer of ordinary skill and we are looking at the prior art reference and maybe some other reference in combination would get that skilled expert debt designer of skill are wouldn't be able to make or should be able to make the logical jump between the prior art references and what is being applied for i think it's a much harder standard because you are likely to be able to get the the patent office examiner say to you listen mr ben checked i have this reference or i have a combination of two references now you may have a slight difference but the designer of it we're very skilled in the art would be able to look at th reference and make the logical jump to the design that you show us here and that's what separates our case from a situation that you're talking about here because the designs that we have the patented designs in this case not only passed muster over one of the two but also passed muster under one of the three for the viewpoint and i think it's a stricter viewpoint i don't think it's easier viewpoint because big zander isn't going to say well because this is a person who is a designer an appropriate motivation to combine i think that i think the debt is a difference but that is not always the difference rejections can be made under section one of three on the basis of a single reference and they oftentimes are the n the reason that they're made is just what judge bryson said because now the standard is would one of ordinary skill in being a designer understand that you could make the leap from the application was shown in the application to the prior art and if you can make that leap not from the viewpoint of them every purchaser with knowledge of the prior best fed the even greater degree of creativity and a greater degree of  to circle something like that correct the circles that are shown on the end still aren't shaded at all there's no sure thing to show if you look at the circles that are on the top where your feet go are serving this claim against cheers that have elevated exactly so and we have in i believe a photograph of the croc prior arche be recognizing that your little circles represent elevations as are known in iraq or arc well i think one thing that you would recognize you are is that they are different and that they would contribute to a you're out or you hit the point because all this other talk about what should or should be the test to me is another issue what we're really talking about here is we're talking about a motion for summary judgment and we had this district court acknowledg that there are not real differences we've identified five points of novelty the court is considered for those are shown at page nineteen to twenty one of our reply brief the district court in its own opinion this is not legal argument this is not attorney argument this is what the court set they said these differences the four differences that you pointed out i call the points of novelty the district court characterize them as points of difference and the district court judge said those differences are not under investigation for summary judgment when it clearly knowledge is that there are differences that there are probably differences between the prior ar that's the difference the program summary that's what you're saying right absolutely your honor absolutely but it's it's more than that once the court made the determination that there were not the differences between the seven eight nine patent and the mean prior patent designs my my contention is even if you threw out the point of novelty test entirely let's forget about egypt got us itself says you consider the points of now the teeth as part and parcel of the comparison between the  play into the determination of whether the two designs to prior art design in the patented design are substantially similar or not it has to be the case if it do or if there were no other differences and it didn't play into the dissimilarities between the two the arm again going back to this is a summary judgment context it's a harmless error because there was no evidence submitted in opposition to summary judgment that would have permitted it sure to preclude that the in sole change the overall impression of the shoe big red stars or something in the insole that just drew the i immediately would you have needed some kind of evidence in order to survive summary judgment maybe not a neck a shot i think that's the contested case if you look at figure a tribal issue a fact or is it enough for the district court for us to look at the shoes and conclude well that's that's sufficiently glaring or obvious or  i would say probably not in that case writer because why then in this case well in this case your honor we what we have is we have a defendant who's come forward with very similar prior art and i believe that we've met our burden at that point to produce prior art that makes a crime  insubstantial but the install apparently isn't as you would when people buy the shoes when they take them off on the beach or whatever so how could that be a minor difference because the the pattern on the we're entitle to produce evidence that there's a very slight difference in position and if you look at the figures also the whole install there are some figures of the crossfire at that show the hole in sole but the figures of this particular patent just show part of the insult so i want to clarify with regard to my earlier response that i do believe that this report was partly correct in that part of the install is hidden from view but i don't see the party until it's under total correct but you see substantiality in figure six who designed it is what i would call you know i would call it vertical bit you know like ribs it ninety degrees to the to the side of the shoe and then you look at the crocs and see exactly the opposite way  deciding exaggerated importance to these individual features it's it's the overall impression and i believe what happened in the summary judgment context is we have an example of a very highly quite admit it prior art there's no dispute about that it's very similar to the patents at issue in this case and the overall impression i believe we showed evidence that would permit a jury to conclude that we need a private fish a case of obviousness because there's a single feature design this isn't a case necessarily where there's a dispute about combining the prior art references this is a case about are you saying to wash there because this is an anticipation here you have to go off coin well i don't think it has to be claimed to be disclose its prior art or i think that there is a suggestion a disclosure in the seven eight nine patent that you can't have it and so all there is is a certain position that it's something that we asked the lower courts to do and it was fully briefed and it's something that's available but i don't think necessarily this is an obvious case this case is about whether there's novelty over a single  imitation is not novelty i submit that what we have in this case is is imitation it's just priceless example that he used in the first part of the argument someone comes up with a design that has all these different features and somebody wants to come along and and imitate that and and that's what we have in this case we don't have invention and if you look at the cases that applied the anticipation doctrine in the context of design patterns historically it's been in the eye of the ordinary observer the test that there is not limited i don't believe to considering the identity of design in the infringement context it's also talking about inventive faculty and whether or not there is imitation or innovation in a design and i think in the in the novelty context you need to apply it from the eye of the ordinary server otherwise you assign exaggerated portions to small differences and that can create some problems as judged b noted in his hypothetical i want to address that some of the comments that were made that if we eliminate the point of novelty test in anticipation we're going to have to test it or too confusing and i just don't think that that's the case  in one of three you have a situation where there might be multiple prior art references there's got to be some sort of suggestion to combine those references and the references as a whole must have elements that create the same overall visual impression to the ordinary observer the question of combining is done from the perspective of the ordinary designer i don't see anything that's difficult or impactful about a jury or judge applying that to you know one of th you know you know one of two contexts where you have a situation where there's a very highly similar admitted prior art reference with a very slight tweak in and change that's not enough to create novelty at least not as that term is used in section  new ground what i'm asking you is she ripped of the point of nothing that's what we decide to do does it make sense to say that for purposes of anticipation asked the question were ordinary times are we think of two references where as as to whether or not it is permissible or practical or feasible to combine prior art references or to modify existing reference to suggest something that may not be disclosed in the nearest prior art that's done from the perspective of an ordinary designer a museum in germany so i would agree with that i could be that we're talking about it well i'm sorry i mean back a little bit away from that in that you need to look at the particular decider in the field and there's going to be evidence taken as to what he or she looks at what they're at a level of education is what they may or may not be familiar with and then you can make your arguments as to what they may know going into that comparison i think the ordinary assured her is and it's much easier place d for me to go with this and i think you take your normal experiences into that comparison you're armed with knowledge about the prior art you know what an ashtray looks like you know what other ashtrays look like a consumer  entire life that's where you going to make here that's a point of reference and i think in the one of three context you have an ordinary designer who's going to be that hypothetical designer will be helpful tell the jury answer the question as to whether or not it's this is a combination of references is appropriate first the egyptian goddess court said examining the novel features of the claim design can be an important component of the comparison of the claim design with the qs design in the prior so the point i was trying to make before i could find this quote is that indeed egyptian goddess recognized that even though you don't consider the point of novelty as a separate independent desk the point of novelty is important because those novel features orders the district court quality of novel differences do in fact play into the overall similarity or just similarity of the designs secondly with regard to mr walter statement about imitation this is not imitation number one the district court said that there would not be differences if it was an imitation there would the combination of all five points of novelty that when properly considered by good mary observer be it a one zero two or a one hundred three ordinary observer that's what makes this different and that's why this quirk was improper in granting a motion for s