affidavit that shows that the more referenced does not show a change stop on the end of the poll and nor does the poll appear to be functionally able to cancel a chainsaw which would leave one skilled in the art away from using more of the combination what is what is the inventive concept here of the patent the inventor concept the card is his words in the claims the combination of each of the elements that allows a chainsaw to be releasable ie mounted on  the end of a telescope being pulled and all the attributes that go with it and what is your position about what is different in that in this patent that was outside of the prior art not a hood that none of the prior shows the  in the depressed on position and includes a second functionally operatives trigger or switch at the bottom of the pool that the user can can manually operate so all of so all of the pieces are the so is your position really that there was no motivation to combine all these pieces i mean are you not suggesting that none of the parts that you just described was in the prior art or in the prior art has the pieces that occurred i mean there a telescope right well i understand your point but i think that there are arguments about the weakness of the pole goes to whether or not the pool that's used in connection with the device that it's not a chain saw can be substituted for a device that is a chain saw not sure i understand your answer yet mr rogers did not contribute any and there was no aspect of his invention that involved a pole of particular design other than that it's still scope wouldn't any device with any pol l that was connected to a chainsaw as long as it was a telescoping pole in fridge well you would you wouldn't say gosh this is really weak it doesn't hold it's not going to hold up more than a couple of months with heavy use it's too weak a poll therefore it doesn't interest you and you know i don't have to agree with your premises infringement that's correct and therefore also anticipate her obvious write well except the question here relates to whether there's a suggestion to combin also one of the points that you stress is that your sense that the trial court didn't consider your evidence your objective considerations and you refer particularly to this the failure invention even though it was aware of all the pervy admit they were aware of all the perps since one thousand nine hundred ninety and failed to develop the invention is virtually irrefutable evidence of non obviousness here the district court did not consider  now mr fisher from home depot another interested party stated that he saw in late one nine hundred ninety five or only one nine hundred ninety six designed by dusty but he didn't like it because it was too heavy all in ninety five from home depot that was ready for sale in our store that's before mr murray even says that they were working on a missing what's in what's inconsistent about those  to consider the secondary considerations was improper i'm saying there's a couple of reasons why the summary judgment was improvidently granted first there's a dispute as to the scope and content of the prior namely the  reference itself secondly on a legal conclusion the district court failed to consider relevant pertinent evidence of secondary consideration ok let's hear from the other side and you have some time left you can see the issues which are troubling me at least to this one summary judgment and that there were it looks as if issues that could raise aspects of credibility as to who knew what the record but let's just focus on those two in combination cause even more or bottom work together there's a suggestion a very strong motivation to combine the missing elements and therefore the patent isn't valid in the cour judgment was correct the the the presentation that mr hofmann just got just presented did not make sense to me because i don't see any inconsistency in the record in terms of the secondary considerations judge left very little doubt that it was ingrid lying on secondary considerations well he did evaluate the secondary considerations in fact he was so careful to make sure that he consider all the evidence that he asked the parties to submit supplemental briefing on the secondary considerations factor alone and to be that was just commercial success is right that wasn't what let's focus then on long felt need and copy the court's opinion  well one of those factors work was a commercial success and he would not say and that wasn't good enough in light of the overwhelming evidence of invalidity based upon the prior are you know the court was not required to detail and we cited some cases  judge newman's point the court is three is required to grant all inferences in favor of mr rogers and the question i have as a follow up to judge newman's is on the copying matter with the inference is probable i mean where was what was the other that has nothing to do with the parentage invention whatsoever so it's just that the timing is just a coincidence yes as you can appreciate the poor there was twenty five or thirty or forty pounds heavier or it cost a thousand dollars would not be a successful  evidence of any activity between august and october on the parties with respect to this project yes we have communications between its main elements that certain riders contended below were not part of there were the electric chainsaw the bracket inside the letter chain saw the trigger in the trigger depression device and to this day riders continues to contend or does not teach  the argument that a chain saw they tend to be heavier than that they vibrate a lot and counter a good deal of of resistance this isn't cutting twigs this is going through that's troubling me with hindsight after we see mr rogers design that works all of a sudden out come such a tool by the very people to whom he showed his design using all of the elements that are in his patent that i gather although the trial court didn't reach infringement that infringement could be fairly straightforward if the patent survives i guess i don't know the answer to that and i don't want to ask you to say something that doesn't have to be said there but if even just making that assumption the circumstances here are difficult aren't going to to overcome that type of judge bryson's inquiry as to activity in this period before mr rogers showed that it could be done and how to do it would be helpful because again with such activity guided didn't recall that there was any defense of prior knowledge really is only that we be working on it our except the record shows that there's a been working on it for a long time so that doesn't help so and again i make these comments in the context of summary mr rogers even i don't recall your brief says that the entire structure and everything else existed with the trigger in the hand and all of the details which are in the claim i don't recall that in your brief statement just itself so i must say i don't recall the position that absolutely everything was there except the poem was too heavy in chicago during that meeting test i showed me the electric pole saw which incorporated a removable independently operable electric chainsaw mounted on a telescoping pole and that those are all you this is the claimed invention that's a proposed at the pole so i'll be sold by home depot i rejected as his proposal because as i told us at that time the electric pollstar was too heavy and consequently would be unsafe and difficult for the user to in that much detail in the step aeration but it has to have been there it's in here if you have a telescoping chain if you have a telescoping pull all the chainsaw on one end and remote switch on the bottom to turn it on and off you a chainsaw by definition almost because underwriters laboratories requires this and every change site has this change or by definition has a trigger switch it's a safety risk a dead switch yes it's exactly right so you have to have that so the only way that this tool would even work would be having a trigger depression device and writers doesn't dispute this that would be inherent in a pulse of the chainsaw you need to have a trigger depression device it's necessary to him to keep the change so i turned on and the top end of the think there is evidence in the other thing to recall your honor is the evidence of the prior art is so overwhelming the court is allowed to review the prior and weigh in the secondary considerations and here we have the more power patent which doesn't say say even if the court gave some credit to the allegation of copy it can be overcome by the overwhelming evidence of prior invalidity in the record and that's what  itself off and that it's an obvious safety feature and in fact you will just require that since nine hundred eighty six ok let me ask you just as an aside another issue which is the claim construction by the district court judge is there any question that the district court is there any dispute and i should ask the other side of this too that the district court simply accepted mr rogers claim construction because there is a lot of plain construction analysis in the opinion is followed by a statement that he invalid so broad it would be invalid and in fact as we file that motion we told the court that the defendants would accept riders claim russians for purposes of that motion and that's in fact what the judge  reference to other devices incorporates a chainsaw i recognize you know checker but if you were to accept that then you would pick up with the chainsaw the trade offs is that fair i would say that's a fair statement if you accept th dation for a chainsaw which by definition would require once again a reason to look away for more than the combination of the chance and declaration that was signed it was one that i specifically heard mr janssen says that desperate show me this product i believe early ninety's late ninety five early ninety six there's a problem with that declaration it conflicts with what does his own documents say they were doing that they seized all the work on the project in one nine hundred ninety three not to be resurrected again until august ninety six after the time mr janssen's says oh i saw if this was new working on it what did they show h not when desa resurrect the project the timing on that is pretty pretty indicative of i think what really happened but you're asked is there any documentation that was submitted between august of ninety six and october of ninety six seven eighty eight in the record that's where mr polaski this specific individual to whom roger sent the salt resurrected the project so it came after after that december fifth or the mid december date was the last communication between rogers and