threats but our threats did was present a flurry of evidence directed to the wrong question directed to whether the coating on fiber wire affects properties of the product the suture not whether the coding affects the basic a novel properties of the invention and for that reason the jury for it it cannot stand now what were the basic and novel properties of the hunter invention the district court explained this in her markman decision she defined the basic a novel properties and she explained in her opinion that the essence of the invention was the idea of making a braided suture using dissimilar yarns that were braided together so that they were in intertwining contact and every sult of that was that the resulting grade had beneficial properties from those dissimilar yarns she pointed out that the inventors explained in their patent that it an important feature of this invention and one of the reasons that this braid achieved and hance  fibers in these dissimilar yarns were free to move with respect to one another and so that when the secure is bent those fibers could move with respect to one another and you have enhanced by ability and she pointed out again focused on whether the coding affected the ability of these in or of the constituent elements of the suture to provide and hance properties as a patent cause for that was what my tech poker star expert looked at the su determined whether the coding penetrated the braid and in any way impeded the fibers from moving with respect to one another and to really was no cause he wasn't there contrary evidence presented on that very point now there really was not your honor it was that wasn't there evidence about whether the coding penetrated into the five words that there is now really really no credible evidence on that let me point you to exactly what their experts said first about their experts said one thing with respect to his opinion as to whether the coding did affect the basic novel crab or he said it didn't matter to him whether the coating penetrated the great or not and his testimony with respect to he did have  some rather general testimony he said that the coating could have penetrated the braid but he said but i wouldn't hang my hat on that and it's always speculation and that's in the record i believe that page two hundred seventy one that's the extent of what their expert said with respect to whether the coating penetrated the brain or not and they have nothing and none of their witnesses testified in any way with respect to whether the coding in any way affected the ability of the constituent elements to contribute their unique properties to the bridge instead their experts answered the wrong question they focused on what effect did this coating have on the product well it wasn't the handle ability of the prada and why is it unfair for them to focus on the gene use in the in practice where with exertion in their expert a man and said you know i can tie this not much more easily it's much smoother and you know i give up some not strength but handle ability of this is changed from one that doesn't have the coding in one that does have the coding and why is that unfair for them to focus on that and because it instruction i think to and the jury was kind of given the green light to look at handle ability under under the instructions that they were given and the arguments because you got into this essentially consisting six days and they're really fighting about handle ability seems to me most of the time why isn't that fair under the way the case went in i think the confusion is that there are several things that contribute to them when they made a suture that was all peachy it was to stick with a made one that was all p e it didn't have good hand ability it had were not security it was only when they combined them that they got this great product then they further enhanced handle ability reference to handle ability in the trial because handled all of the is referenced in her definition of the basic and novel properties but in the context of what's contributing to that panel ability the braided degraded construction so we get the hand ability we take it this far with the invention and then we further enhance it just as tighten the patent by putting on this ubiquitous silicon coating so i can i can imagine it was easy for the jury to be confused i believe they were not support the verdict because all of their evidence again answers the wrong question all of their evidence goes to these handle bilby properties the types of properties you fully expect are going to be affected by putting a coating on a suture making it more slippery making  you answer the wrong question you get that you get the answer that they want which oh yes the coding effects they handle ability but that does not affect the invention they got to a certain level of handle ability of that suture are a step forward in the in the district courts to its description definition of the basic novel properties which yes it's a suture but it has this braid of the similar materials which contribute to the hand ability employability of the product so  it's if i can use a an analogy that might be sort of timely think about michael phelps olympic swimmer he's the fastest person in the water in the world why is that because he's got great cardiovascular strength great muscle strength he's water that body suit is not affecting the basic things that go into making him the fastest swimmer in the world it just inhance at and similar here we have an invention that they clearly appropriated using two dissimilar yarns braiding in intertwining contact to reach a certain level a panel below the empire ability that all they do is do what everybody does on a braided suture and what our patent discloses you can do they put a coating on it to take it to the next level this appeal and the only issue here is a substantial evidence test and as court knows it should affirm unless there was a total failure of evidence to prove the plaintiff's case i was struck by the briefs in this case my tech file the fifty one page brief in virtually all was just arguing its view of the facts hardly a case cited except for perhaps the standards to be applied made no legal arguments simply arguing the facts the first twenty four pages of their reply brief everything before the waiver argument as a legal component to it first twenty four pages again just arguing the facts they didn't cite a single case in fact arbroath almost entirely is in argument about the facts and that's simply what we have here is an argument about the facts in deciding a case on substantial evidence this court has said we can't ignore the case we can't ignore the litigation that happened prior to getting here i want to spend just a couple of minutes on that in start actually with the summary motions that happened in this case i think this helps answer the question judge or grady that you asked we moved for summary judgment we relied principally on these generalized teachings of the area the judge said no that's not enough you have to show what fiber wire does to handle billeted imply ability defendants that was their opposition they never said oh no no you're asking the wrong question it's only whether it affects this five five mobility they said there's a factual issue as to whether the five the wire coating the coating on fiber wire affects the sutures pliability in candle ability they relied upon two pieces of evidence in fact let me read what the judge sent this is in the appendix at and other characteristics well not disputing industry practice my tech submitted evidence of fiber wires particular coding did not have a material effect on him to ability to apply ability that was their argument they relied principly on two pieces of evidence their own expert who said it's just a small amount therefore it can't have an effect on probability in one of our experts and orthopedic surgeon who did a subjective test where he checked the feel of the suture and how  simply about what they call now the surface code and they relied very very heavily on the fact that dr burke's our expert said that the difference was merely subtle but he said what you are but he said that it was subtle and that was the and the judge said you're right you've raised a factual issue and suture him to ability imply ability we're going to have a trial on that issue and that's what happened to trial with the can came in wrote her brief and said here today isn't what happened use the evidence that i just talked about in summary judgment they said that the improvement in sutures handle ability came from the treatment and from wipers in the manufacturing process they tried to attack vigorously our expert testimony  tests on fiber wire and showed it and that's what they told the jury why they should when in fact just go back to dr brooks for a second the orthopedic surgeon who did the handle ability test they called his testimony extremely relevant extremely relevant was the words they used to try and convince the jury that fiber water coating did not affect kendall ability in pliability of the suture now what is true they also had another the jury instructions not to the jury never once said we're asking the wrong question down evidence is irrelevant we're not entitle to win our case by showing the effect of suge on twitter handle ability imply believe think the opposite they said it just didn't do it they lost in we're hear it now for the first time after years and years and years of saying no no no no no it's all about fiber wires handle ability this common practice it doesn't matter it's not the right question now they come in in say of course if hammett it affects scandal ability and pliability everyone knows that you haven't done it well that's not how they tried the case and this court has said as well as every court that when you try the case that way and that's how it's decided all of this was left to the jury as you as you noted judge or grady they were given the instructions they were told you heard the evidence you decide there was no confusion  this case this was a deliberate way the case was tried we won and now at the fact my tech is trying to change the question if i may have just a minute or two on really  this basic good novel properties which which the judge found came from us we're the ones who suggested this so as to we didn't quite use those words we said it was suture braided together to achieve true kamal building argue that it's not known in the industry and so there's nothing novel about that and and then are allowed to argue that changes  ability how was that argument even relevant to the to the patent action because of the words consisting essentially of consistent essentially of changes this if this were a comprising claim everything you said would be exactly right you can't get out of infringement by adding an element but in the consisting essentially of case i mean you get the no dispute about this on the law you must look to the specification to understand the basic and novel in if the unlisted ingredient here different reason than the coding argument that deal and p p j that's that's absolutely correct and that's why we were here in fact that was there was no dispute about that issue but she was really the bottom line frankly as to why we're right and again this is substantial evidence test result came just told you a story about the about how five was created unfortunately for my take that was seriously in dispute and what the actual testimony was was that fiber wire was about trying to get this increased ring suture while maintaining sufficient not security mr grafton mr lyons dr burke our three people who were involved didn't say a word about how this was an invention to improve pliability and it's far is handle ability the evidence in the case was that fiber wire didn't even have acceptable handle ability until the coding was at it and that's really the key here that was the evidence in this case is that fiber why does it even achieve the goals of the invention until the coding was added mr grafton said mr lyon said that dr burkhardt said it in the experts all the evidence showed it and that's why we when of course we affect the coating affects the basic and novel properties without the coating you don't even get there i mean even if we got there with that we would still win because it a material effect as the evidence shows but this is the easiest of all cases because there's substantial evidence in this record that we do not achieve the goals of this invention  coating was at of course it affects the basic and novel properties of the invention without the coating you simply don't even get there that's the evidence in the case that's what the jury heard and as as you said this was left to the jury no objections to the jury instructions this is the way it was all argued my tech was free to argue the case of the jury was all given to them they heard all of this evidence and they decided that but the coating materially affected the base kanada characteristics and that's why they found no entrenchment one just last word and then i'll and then i'll sit down you made reference judge lane and you are correct even on this issue of does it permeate the parade that clearly was evidence from our side it was not the major issue that we trot that's for sure but they made the argument and we responded we talked about the whipping effect we talked about the pliability test itself and how that shows that there was an impact there we showed up back how the coding filled in the void which is exactly to get to that intersection between the two by bers so that clearly was evidence with which you made reference to our expert you it a little bit wrong should post a little bit wrong because he says he looked at their experts photos and he says it's probably in there but i'm not sure just by looking at the photos so i think it gets in there because of these other things because of the working effect and because of the way the coating worked in the in the manufacturing process so the evidence clearly was there on that point but i do emphasize that we don't really even need to get there because the evidence as this case was tried to the jury in as the trial that existed in this case shows without question that the fiber wire coating affects the basic a novel properties it was left to the jury decided they decided it and that's why we ask your hon is it is correct that the amendment was put in in response to a piece of prior art the done deal with code that's correct is judged satirists commented i think absolutely correctly it doesn't really matter why the amendment was made the effect of the amendment is it added in the words consisting essentially of and whatever the added ingredient was if it affects the basic novel characteristics then it affects the basic in all  characteristics and there's no intrenchments the reason for the amendment if we're talking about it a dr equivalence issue perhaps but we're not we're just talking about language that's in the classic consisting essentially of is him the when one is doing claim interpretation which is not the issue here one can sometimes of course look to the prosecution history to understand term but the term is a tar and image term has a meaning in here the term is assisting essentially off you know if you added the limitation having to do with the color color blue and but in the prior art had to do with some other thing that would probably would still be in there and the work consisting essentially  is in there it can't no one is no one's challenging here the same interpretation it's just the evidence so we think that the just once those words came in then you have to go to the analysis of what does materially affect the basic and novel characteristics just to judge sarus ordered the trial to to be on in just as she explained the question was whether coding affects those basic and novel characteristics and specifically whether it affects suture handle pliability my understanding of the effect of consisting essentially of signal is that you look to the basic a novel characteristics of the in mention it doesn't signal that you look to the basic and novel characteristics of each of the listed elements is that correct i think that's i think that's right you've got to got to look to to it but you know let's think being that effects that call as clearly the evidence here shows then plainly you affect the basic a novel characteristic the closest case that actually i found to that is the p p g case which i think the judge or grady made reference to there the basic in novel characteristics involved the composition the color in the poetry and in the light transmission for tinted windshields and the evidence only went to color in light transmission had nothing to do with the core of course because that's what the patent was driving to in when they found the evidence that affected the results there the fact that it didn't affect the composition well didn't matter because it was a pattern about trying to improve these things  their color and in transmission here pliability and handle ability and once the evidence shows that you impact that we can i repeat this is a patent fact if you go a little bit back in the pact the patent talked about all the problems of the prior art coding being among them and in fact the evidence in this case from the inventor was that he was trying to come up some with something that didn't need coding because coding had problems with thing that think that for sure this is the patents that  coding that the judge said and i think that's exactly right but he was trying to eliminate coding eliminating coding was actually part and parcel what was going on here in fact the specification says that the advantages the  ability pliability advantages come solely from the direct into twining contact between the i thoughts not quite the words they use but that's the point it comes when we don't get those improvements from the direct into twenty contact or at least the substantial evidence in this case that we do not get the benefits of the improved in will building pliability from the direct into twenty contact between our gardens it mr grafton said it is clear  e you didn't get that improvement until you added the code dr burkhardt's said of course we knew we couldn't get the advantages we needed until we had the coating just like the prior art that was described in the pat so clearly this is a patent that talks about putting talks about the problems of coding in this is a patent that you know if you have to do it the old way to get the result as the evidence the substantial evidence in this case shows then clearly we what our product was all about was not about what the the one hundred patent was about which was about trying to get a more pliable and better handle product while not making it too weak ours was we were we established a whole new category of suture which was about super high strength sutures and in fact created a category that existed that's what our invention about in fact i had to invent  by using our invention by breaking the two together and then put the coating on and there's some very interesting testimony about this in the record mr grafton was the developer of fiber wire and the page fifteen twenty three in the record he talks about how he chose the  materials and he varied their amounts to get the best properties strength not security tied down tactile feel which mirrors what's in the patent at the bottom of column to the idea of engineering a braid by choosing the materials the time the product would have to be coded to be a commercial product because the product the properties we're talking about with coating the surface properties it's ubiquitous on these bumpy braided braids you're going to put a surface coating on it but to get a break that's good enough and we haven't appealed it here we do believe that judge cherishes to definition of the basic and novel properties does accurately define those properties when you read them all the way reprint where you make sure to pay attention to every but we did think it says it is important to look at how the consisting essentially of language came into the claims and the fact that the patent expressly sense that coding is an optional enhancement that to us is strong evidence that coding is not part of the invention invention is this just the trade of dissimilar materials to achieve these advantageous properties coding is an enhancement and it cannot affect the basic inaba properties and in this case it does not and the evidence is undisputed on  even with twenty twenty hindsight if we could put it presented that were clearly to the jury the evidence on that is undisputed and there is no evidence well it's against a credible way to the evidence the jury from that's why we ask that the judge cheriton order being reversed