explained in detail if there were splitting in cracking in the compressible objects there were in that exhibit for twenty one and as soon as you have that expert testimony that creates a genuine issue of material fact that the court resolved against three f to and on the madagascar cork began a compressible object under that test tube it had so many cracks and splits at the cross points that you reported over eighty percent of them were damaged they cannot demonstrate that the shoulder three twenty seven process will result every time in a substantially naturally appearing panel under those facts and all of the arguments that come back to the contrary are classic facts that the district court should not result in a summary judgment clear and convincing did no testing using polycarbonate how can you establish clear and convincing evidence that a test panel polycarbonate will result in a substantially natural occurring confirmation every time when you did no testing there's a reason  judgment regarding validating those claims of pat that did decision should also be reversed because number one the district court expressly relied on his anticipation finding to invalidate those p claims but second three forms expert witness dr got through testified that there was no motivation to combine the teachings of the three twenty seven patent with p g p once you have that expert testimony very small portion of music support expert report related to tests he gave pages and pages of other testimony that was not exclude the related you're not relying on the tacit right one you're talking about a genuine issue a material fact now where in the record did you either through attorney argument or theory or expert in any way respond to the tests that were done by numerous expert and question now ok and your honor that specifically goes back to cold shoulder process to this extent forty p s i for the first bump the press over the press and then one twenty p s i on the back it dr flynn their expert said that there is no material difference between using one use this lower pressure one twenty on the back end of this process the result you're going to get in terms of the substantial natural appearance is going to be indistinguishable of using one sixty and frankly your honor helps prove our point because one sixty you would assume would have more defamation less natural confirmation that and so the fact that he was one twenty just proves the point that when they're using the schober process you're going to get at least one or two panels that do not have a stance substantially natural appearing confirmation and soon as we have that summary judgment should and should not have been granted it should have been said back then with respect to obviousness on p t g as i said there was no motivation to combine our expert testified and the sole purpose of shoulders two step process as described in three twenty seven pack was to end up with a solitary unitary panel that didn't have a defect in the matrix of the panel so the plastic didn't have or cracks or things like that there is no mention whatsoever in the shoulder patent about an effort to maintain a natural confirmation of any of the products that are inside embedded within the plastic so on limb core argues that well if you look at the for tomorrow our visual and our utility application we added the second pressure step in our utility application therefore it must have been to go and address this issue of compress object but the record simply doesn't support that for one reason the provisional application and utility application both include the only item that lou court arguing is compress so if it is if twigs are in the provisional application and you're only using one pressure twigs or also in the utility application you're using two pressures the second pressure can't have anything to do with preserving a substantially natural confirmation and when you look at the language of the happened there's not one word in that patent that says what we're trying to do here is make sure twigs or anything else maintains a natural conformation and find that with respect to p t the district court didn't opinion she gave detail that there is a distinct visual impression between reeds that you see the zero six eight and grass that you see in show and it's what she specifically said the grass panels don't have nodes like reed and she specifically said that argument does not hold up now the jury might see this one way or the other but the critical point here is that this kind of record is not appropriate to summary judgment on a clear and convincing evidence stand straight what question you in your brief you have a section devoted to claim construction but you haven't argued it here that's i'm not that needed here there are you do you feel we can briefing here today was overlooked by the district court when he mistakenly construed and i don't think luke or relied we think we can decide the case without getting in the claim construction because you because regardless of how you look at substantially natural occurring confirmation our experts say that there is a panel out there that was created consistently schober that doesn't have a substantially natural occurring confirmation regardless of what the claim construction ends up being specifically the district court chose a primary reference that was never identified by the parties in such a blue macor identified and the parties briefed shoulder as the primary reference and when you look at th fact a five seven it would i have not read that i think it's referring to this is a possible reference even has a picture of it as being one of the primary possible primary references but it doesn't say a possible primary reference reference when the parties have brief something else as the primary reference and i'm finally as we've argued in in the briefs the dischord made this fatal mistake of taking a design concept and saying it's not difficult for the court to imagine a reference that would have  evidence would allow this court to find that the crier are cross of three twenty seven pad still produces a natural confirmation every time if not withstanding a panel but if you look at a closure and as the core pointed out that one panel was not made says the same thing in seven forty five right but i can't tell whether it's a read or not so i'm just referring to it as debris he notes that it was screams and i was submit that it was actually grass because it had a mix of recent grass  further of course that this question of whether it had a substantially natural conformation or not it's something that dr got through says it's a function of whether it's commercially marketable in their infringement contention the accused products as doc as mr schober testified had all manner of flattened cracks and spritz and splits in them when they were marketed not one of those was ever excluded in the infringement intentions as being not substantially natural this one is the only one how do you know whether it's substantially natural or not well whether it's marketable that gets to the question of the indefiniteness of this question in the first place here we have dr gotra looking at a single panel it's split in what is a blade of grass which he doesn't know also by his testimony whether it was there before was placed in the panel or whether it was caused to be split through the process itself and opined that this one is not s of the evidence it's very clear that the three twenty seven patent produces the product within the scope of the seven hundred claims as applied by the experts and freeform every single time we have a couple of other issues raised that i would like to address g but you would use a temperature that's much too high because you don't know what temperature you use when you did that in his sail test that test was excluded because of course the temperature used was too high and the pressure due to the time that he applied the high pressure was testimony was excluded because the testimony was entirely based on that false premise test and if you exclude the test you have to exclude the testimony as well even so there's nothing about the testimony that makes any sense it doesn't g paddles and says they all behave the same there's the motivation and the only counter to that is the excluded testimony of dr gotra we have advanced by my calling with that in the provisional application mr show the first three twenty seven patent predecessor provisional had only one pressure and mention twigs and then in the utility he mentions two pressures and and therefore the second pressure can't have anything to do with improving the natural conservation of twigs but of course there's no reason for that not to be true there's nothing in the record below for why that's not true because it wasn't raised but it's quite simple that mr schober recognized somewhere in between the timing of the two those two filings that using two steps improve the performance of the of the product but it doesn't even matter it doesn't even matter because all that does matter is if you apply the process of three twenty seven patten wit two pressure stats and if it produces the product in the substantially natural confirmation within the scope of the seven hundred claims that it anticipates dr got you also agreed repeatedly that the purpose of the to crush us in the three twenty seven pattern was to avoid the crushing he said that twice in his deposition clearly it has that effect whether it was stated as such expressed in that three twenty seven patterns not much like it every single product is different every single acuteness product is different there never has there ever been a product that looks exactly like that the design pattern is illustrated because these are natural materials placed by hand and so all we have here is replacement of something that's basically the same at appendix page eight ten forty seven i think is where we have actually starting earlier than that in terms of the surprise and the use of reference number five in three forms briefing below we have three forms opposition to our motion for s and there are there articulation of the statement of facts at eight ten forty two starting there that fact number eighty we said that three twenty seven had describes an architectural panel of basically the same design as patent that basically the same design that's the magic work that means a primary reference that's what you have to prove to establish a primary reference really that's what it's getting at so that gets to the image of the prior art three twenty each of which is basically the same design is the zero six eight pad again magic words were saying these are also primary references and then it cites all of those grass panels which includes exhibit number five then three for me and its own we're relying on exhibit number five as one of several possible primary references and then it continues it ten forty seven paragraph eighty two replacing the grass in the link or products the grass products  seven either one would produce the claimed design so clearly in the record below there should not have been any surprise we were saying that you could choose any one of those as a primary reference substitute for grass and did the same design there's an argument about corroboration for exhibit number five and this was also not raised below if it had i think it should have carried the day anyway mr schoenberg submitted a declaration with an image that had a date on it with testimony saying that it was a product that had the image was taken for his website and he had an email for an order of the of the product that should have been sufficient corroboration anyway i suspect that because of the strength of that evidence that was submitted below three form didn't challenge they didn't raise corroboration blowen shouldn't be doing so and lastly we have that motivation to combine here and whether it would produce the result the most we have from three forms experts i miss lewis is that a consumer who wants a real product or a grass product wouldn't substitute one for the other she's coming at the wrong leg that she doesn't talk about the motivation to combine references and whether if you saw the prior art with grass in it it would be obvious to substitute the reeds instead and did the claim design she also never saw and did not consider the other prior references that we rely on for that motivate thank schober she did not she was not given the schober patent she was only given the drawings she said in her deposition that she didn't read that she only looked at the drawings she was also not given the  form admits is timely and predates the critical data that says hey here's a fact a product so she knows nothing about those prior are references that would provide a motivation to put read in there instead of the grass so she can offer no compelling opinion nothing really that's worth anything about whether a designer would be motivated to combine into a substitute to reach for the grass it's quite simple of course in the three twenty seven pattern literally says as much here's one that we do with grass oh by the way you could retire the grass is the same thing with the press release either one of those would provide a motivation ms lewis can't testify about whether that does provide a motivation to combine because she never read it she knows nothing about it this is very very dead simple stuff and she admitted that if you took at least one of the grass products and put a reed in every single place where there was grass it would get you the same design all you need from that point is why would you do that and there were two distinct prior art references that say one shopper pattern and the three for press release at that point it's clear and convincing and there's nothing more that's necessary with respect to dr got on this panel that we spent quite a bit of time talking about his testimony was unequivocal and this is in our pandemics it's at page seven forty six he specifically says there's a read th glaxo then that means they can't every time that you follow their process produce a substantially natural period confirmation and then the strict identity or the margins of of in here and see that one is enough to say you don't get to invalidate on clear and convincing evidence on summary judgment with respect to condemn me on page seven forty five a seventy forty forty five say that he wasn't sure if it was a read what i said was he wasn't sure what all of them were but then he goes down and says in that second page i just read that there is a week he wasn't sure what all of the items were in that panel he says don't believe that there were different things right there were different and that's how these work sometimes there are different kinds of of course