interesting question how frequently a feature must be visible in order to be a concern for the ordinary observer analysis this court in contest keystone and where master through the outer contributions of the ornamental arts with this pattern with what how did this promote the progress of the ornamental are i admit i had not thought about that question your honor  the overall design of the container is not one that is found in the prior art and the particular in particular the shape of the opening was something unique not found in a prior art but prep is illegal opening on the front panel yes a no no my statement was not meant to refer to simply the fact i'm wondering if it's this it seems strange to you that you can present you know your two feature design to the patent office and rely on those two features in order to get a patent but then when it comes to litigation and infringement tell the court that well ignore one of the two features throw that out all that really matters for infringement purposes is one of the two features features that are not visible during the ordinary during the normal use of the product on a regular or general basis for two reasons first to the extent that you have that tension the tension used to be resolved in favor of the ordinary observer analysis and that is because the focal point of having design patents is make sure that ordinary observers are not tricked into buying something that substantially similar to something else so set aside for the moment that the u s p t o may want to do its thing differently i'm not an mean you shouldn't be relying on it for patentability purposes for for trying to get a patent on the design well i don't know the answer that question but i can tell you that at the end in litigation context it will come full circle because just as  tabs and slots but then takes the position as it has here that that is not a generally visible feature during the normal use of the particular assumes product and at the design at issue then is not obvious is because of the tabs and slots and height couldn't do that anymore because you've said that the reason that you aren't going to see the tabs slot and heights of the flat so in the litigation context i do not believe there tension maybe this is a more rational way to approach the laws if you if you present figures like this to the patent office showing the to the that's almost a concession that the normal use for a design like this in the marketplace is that people will will see these in one form or another and so therefore just as it matters where validity patentability purposes it likewise matters for infringement yes your honor the law could develop that way in this case there was no evidence that consumers would generally ordinarily open the container from the top a the experts said that based on the way he dealt with boxes his personal experience he sometimes open boxes from the top and so that's where he's getting the idea of the open it from the top the three   different people may use the box differently or open it differently is one that i think creates the interesting question in this case which is how frequently does an ordinary observer need to open or destroy of an item in a particular way to reveal an otherwise concealed feature and in co master and keystones it was an easy those were easier cases because the feature at issue was always visible at some point during the normal news and the corollary implication from those cases that it's never visible during the normal use it shouldn't be considered here the only testimony that it was ever visible was from a p i's expert and what he said was so open it from the top in a way to preserve the toxin class he also conceded that he didn't know how many people would because he didn't do any testing that would give him any sense of how often destruction in the particular way to flatten it out and force open the top wouldn't destroy those features or that it would be opened in a particular way if there are cases that you know of where  this sport or maybe another court has excluded one of the features of the design and no no your honor i don't believe any court has been faced with this particular set of circumstances where someone argued that a feature was mean let in have argued that features were concealed but the arguments have been they were concealed on the shelf or they were concealed because you know and then the court said no it always becomes visible i don't know of a case in this context where the litigants are saying it's possible that might be revealed but you know one side says i've got some evidence that it won't be revealed and the other one says i've got evidence that it might be revealed and there's no evidence about the frequency or the generality of regularity so it is an interesting question for this court to resolve one last point on this frequency argument and then i will move over to the expert point given that the purpose of design patent law is to prevent ordinary observers from being deceived by buying something substantially similar by market does not believe it would be appropriate for the standard to be that just because one or a few ordinary observers could use or destroy their product in such a particular way as to make in regularly concealed feature visible that that would be enough because if that was the standard then you can defeat a claim of design pattern franson anytime before the designs are not identical and this core is already set you don't have to have identical designs and the reason i say that is because it's always easy to imagine that one person might use it product in a way that most others would not or destroyed it in a way most others would not so with that let me turn to the believes that the district court abused its discretion in denying the motion to exclude because the district court did not consider the second prong of the two part test in their will seven o two in the district court's opinion the district court lays out the two parts hester you need specialized or scientific knowledge and you need reliable methodology the district court then says collins had the specialized knowledge that would help the trier of fact because he was an expert in packaging had worked with corrugated packaging even though none of the core data packaging had perforated openings and heading days in consumer research even though none of that consumer research was ever with corrugated packaging the district court never analyzed with reliable methodology how america in the lower court has argued the methodology was not reliable but this is just his personal opinion because under kumo tire one of the one of the indicators of reliable methodology or not is whether next expert employs the same methodology in the not litigation context that it does in the litigation context here a p s expert conceded that whenever you wanted to know what consumers were going to think or perceive in the non litigation context he conducted some sort of consumer research survey testing interviews but here he did not he also conceded that you can't predict what consumers will perceive that's what his past research had educated told him so in light of that it was an error to to admit his testimony and without it there was no testimony regarding the visibility up to top tabs and slots only evidence on the other side of the question and i'll stop there i i figures eight to thirteen of the seven one nine patents are six figures with top flaps in what is called an open configuration with equal height flaps tabs on the back fla slots on the front side and figures eight eleven and twelve are amended quote to more clearly illustrate the design during prosecution that's why they tend we're the one and so there there is an open configuration can see the tabs and the slots and that's in figures one two and section there are always visible because when you close the open configuration the pads go into the slot you can see that that's something street collins testified to that they set up in their brief they quoted something where he said aren't all these boxes going to look identical it's at a forty eight forty five and they quote him saying oh they look identical the next answer that gave was except if they have taps they didn't put that in their grip the tabs are there the patent was on a design for opens or closed configurations at the top by using the pads in the slot all of the ornamental features of that top opening configuration are part of the patent and polly never argues and can't argue that there's any substantial similarity between that design and what a p i is doing because it can't the design is entirely different and in fact the tops of i's boxes are always visible whether they're open or closed you never see the even height flaps you never see the tabs you never see the slot but the reason isn't because something isn't visible the reason you don't see them in a d i s boxes is because they aren't there we don't have them so what they have is a patent which says here six drawings showing an open configuration and when the box is open you won't see them either because they're not there it's a completely different design and that's really the issue now i don't think there's anything terribly surprising in the world we live and that people open cardboard boxes and that people recycle boxes one of the things mr collins said was in massachusetts where he lives they're required to recycle boxes the notion that we some three quincy which consumers who use these boxes flatten them and throw them in the trash bin we had an expert who came in and said i've been a packaging designer for forty years i know all kinds of packages i've worked with carol corrugated cardboard i've done consumer testing in my opinion the tabs and slots would be visible to the consumer in the store and they would be as they're shown and even in the clothes configuration that all the boxes look the same when they're sealed unless they have tabs that cost consumers would open the boxes and if there were top flaps of equal height if there were tabs and sought they would see them consumers would flatten and recycle if there's nothing about any of that that is very surprising and that that the tops would be visible and there's one other point that i would like to go back to and that is the district court's decision because there is almost nothing in polly america's brief about the district court's decision but the district court looked at the overall the district court concluded that the patent didn't accuse designs are not substantially the same after looking at all the features she looked at the front opening she looked at the top flaps she looked at all the ornamental features she looked at two pieces of prior art she did what she said was a side by side comparison which is clearly the comparison that you're supposed to do and she concluded that the front opening of the q s design was more like the prior art than like the design of the patent and the top pop flaps quote create a very different visual impression and then she concluded by saying all together then the claimed and accused designs would not appear substantially the same to an ordinary observer and on the side by side comparison it's interesting because we did a side by side comparison in our brief alo judgement we did a side by side comparison mary here and if you look at page eleven of our bri we have the drawing of with all the features next to our box totally different the judge the district a side by side comparison she reached the same conclusion she looked at all the ornamental features she found there was nothing substantially similar the one party here who's never done a side by side comparison america so they have the burden of proving infringement they've never done a side by side analysis not below not on appeal and there's a reason for that because when you look at these side by side they are very and second they have the open configuration of the top plants which we don't have so there are two very basic reasons why the designs are different judge robinson recognize that we've done the side by side comparison and pol america has never done that analysis always says this well one of our employees didn't even notice that you could open it all the way around the right side that's not evidence to get into a jury in the ordinary observer is something that judges do in the lower court and this court it's not something that you can get by by saying well i have a lawyer a lawyer employee who says he didn't even notice and that's enough to get to a jury unless closed and then when pressed and he because he did add up but you can see that happens a lot from there open and then he was pressed and said well that's only if you open it in this very particular way preserve on destruction or we're opening said yes so the issue really is the one that judge chan identified at the outset of the case which is do you make a blanket rule that says if it's in the pictures and you can't claim that it's not seen during the normal use or do you have the litigants produce evidence of what is visible during the normal use but that is the heart of the case with regard to the experts having all this general packaging expertise undisputed that he worked in the packaging industry for forty years that's not the issue the issue is whether as in the lower courts when an expert says i have had experience with kitchen products for forty years as he then get to a pint it's what ordinary observers will see when it's one patented peeler at issue and experience i watch people using similar boxes with similar openings on both ends and i know that people will open it the different way the expert in this case had no such experience finally with regard to the substantial similarity and side by side comparison  it's just open on the front panel compared the patent design whereas the other a p i is showing you know open with top preserved which when it's taped up and you open it it wouldn't even look like that but that's the only difference all right