good morning your honor may please the court there to summary points about this case that i'd like to start with the st is that this case presents an important issue of law with broad implications for district courts and the board which is whether the prior art needs to show each and every view of a claim design in order to anticipate a design patent and before the ordinary observer test as it has initially announced and gorm be white even needs to be applied i want to be clear that this is a this is a question of law and not one of substantial evidence as crocs has submitted because the whole point here is that the board did not make factual findings the board simply did not apply the ordinary observer test and said that it was not possible because certain values sound right all right i'll go ahead and address that question st because i think there's a lot of other things we have to talk about too but as i read the board's opinion it didn't say that you have to have every single view what it said is in this particular case there were too many aspects of the design that that weren't disclosed by the particular view by by the figure eleven so i don't read the board of having taken a broad legal position that you can't do an ordinary observer analysis whenever views are missing they simply said that in this particular case it was impossible to do i think your honor and i think in some sense that's correct that the that the board did say that it's not taking a firm position that you could never anticipate but it did not actually apply the ordinary observer test and it's circular in our view to say that it is not possible or there are too many views missing without considering the underlying facts and without acknowledge the egyptian got a rule and said it wasn't doing an element by element analysis simply saying that an ordinary observer couldn't have formed an opinion at least as of two thousand and three your honor i think that's correct that the board announced the egyptian goddess test i think it did something different in actual application and in actual application the board did not articulate for example the nature of the ordinary observer the board did not articulate what the important visual features may have been to the ordinary observer it made no factual finding as to the how crowded or uncrowded the prior art is it simply misinterpreted examiners underlying finding on that and it did not even consider the disclaimed features in the figures that are supposedly missing so we need them as well so go ahead i'm sorry but we would submit is that whil missing views may in some instances depending on these underlying facts counsel against a finding of anticipation because this is a standard of confusion consumer confusion effectively there  threshold for the number of the is that need to be shown in the prior art and if that were the test then it would effectively preclude it would run contrary to to gorham and would effectively the board and you and your opposing counsel are talking about it seems to me where you have a situation where you have let's say as with this patent seven views in the patent and and let say to use in the art it seems to me there are two separate questions which have not been separately addressed here one is whether you can make a determination of anticipation because there may be features in the claim designed that aren't clearly shown in the prior art design in other words that there are missing features another issue is whether there are potentially added features in other words the signs in the prior art that are missing from the patented design so which of those two things do you think that the that the board here was addressing it was saying we can't make a determination because we're not sure that the features shown in the patented design exist in the prior art or is it because there's a possibility that the prior art contains additional design features which aren't in the  patent and therefore the ordinary observer wouldn't see them as being the same didn't understand what i'm talking about i do your honor and i think the board was talking about the former or because there is no dispute that it is actually a croc shoe and the same shoe that was that was on the website that is the printed publication so it is the former in the sense that that that the prior art supposedly did not show certain views of the of the claim design in the sense of the prior art was missing those that's correct your honor but i would submit that that both are potentially relevant least as a matter of law to the ordinary observer test and the ordinary observer test this supposed to focus on what a consumer what an ordinary purchaser not an expert what an ordinary purchaser would think and whether they would be confused when viewing the prior art visa vs the claim design and certainly didn't abort say that but when you take it back to the correct point in time which is two thousand and three an ordinary observer wouldn't necessarily conjure up the rest of the design elements or the overall picture because you know today we could do that because we've seen them so many times but but the board was concerned that you would be putting making too many assumptions about what an ordinary observer would  e the rest of the shoe to look like i don't think that's what the board found your honor and that would have required at least some articulation of the underlying facts what the board said is and i'm quoting it is not possible from the photograph to figure eleven to determine whether should design a figure eleven is substantially the same as the shoe design claimed in the seventy nine dollars patent and later talks about a sufficient gap in the evidence and the problem that we have is that there was no finding about the evidence there was no if we had if we had been in a situation where the board had articulated what it believed certain important visual features were and certain what the nature of the ordinary observer was and actually correctly opined that the prior art for example was crowded and acknowledge the disclaim features we might be in a different position which leads me to the nd point that that i wanted to make which is that this case and talked about the important consequences here as a rule but this case is particularly well suited to address this issue let let's go let's talk about the point that i want to talk about st which is that whether we should be here i mean you would concede would you not to bet as of the filing of the complaint that that dogs had i mean the filing of the appeal the dogs had been dissolved right that's correct that for a period of time that the the dissolved corporation can both sue and be sued and from a standing perspective there is an active lawsuit where dogs is accused of infringing the seventy nine  and that is the epitome of standing to us and try to say that really standing is it its capacity just to capacity to continue to act and under the under state law dogs does have the capacity to sue and be sued for a period of time it can still be sued by creditors that is that is the state law and that is why dog is still a defendant is completely absolved from all liability  assets that were transferred are subject to a possible offset but that doesn't mean dogs as a corporation that doesn't exist anymore it wasn't released it was clearly released with respect to all the pre infringement activity the only thing that was carved out was the fact that the assets might have to answer the assets now in the hands of somebody else our position your honor if i understand the question our position that mojave and that's why they have moved to to substitute mojave now is the successor an interest the problem that we have here is is that crocs has not conceded that mojave is the successor in interest and u dogs remains the defendant and the underlying litigation it is it is and i think this is the standing question that we're talking about which is is there a threat of liability or an offset but while having been substituted into the underlying legislation they have been joined they have not been substituted and for this exact reason and it's because crocs has not conceded that and so usa dogs just the same as we can we can talk about a line of cases such as nike the adidas which the court issued this year there is a there is a real threat of liability it's not imaginary in the sense that they remain a defendant that they were not substituted out and practices refused to concede anything nor have they ever and so our position your honor is that yes mojave is the successor in interest but there's a little bit of a shell game problem going on here from crocs aside which is it  case dismissed yet holding on to the fact that usa dogs may still be liable whether it be affirmative liability or an offset well even even the mere fact that the but the fact that they won't concede something doesn't doesn't make doesn't change the reality of what it is well but it is no different than than any other case where there is a threat of litigation and somebody files in appeal for example in nike v adidas where well what rights does dogs still have in the re exam our position your honor is that they don't have any which is why which is why my hobby has moved to sub and they didn't as of the point in time that the notice of appeal was filed that is our position that is a disputed issue and what about mojave i mean how can they possibly join this appeal when to the extent they were if even if we accept the fact that there is a successor in interest they were the ones who should they were a successor interest long before the notice of appeal was filed and so they should have under rule forty three it's very clear that they had to a filed a notice of appeal they can't wait to join after the fact we we could it this was a procedural issue which is the board underlying in the underlying r board order right that didn't let them become a rd party request or the board did not decide that issue the issue that the board decided was whether my hobby could participate in general are no that's not true go back and look at what the board said the board decided several different things i know you argue that in your brief but that's not what the board to the board said it's untimely because it should have been done within twenty days of  becoming a successor in interest and you didn't present enough evidence to prove to us that you are the successor in interest cited to agilent so it wasn't just limiting its discussion to the oral argument not a rd party request or it was a matter of timing your honor the the appeal briefs had already been filed and everything in the case had been everything in the underlying reexamination other than the oral argument was finished at the time of the at the time of the asset transfer mob he had no other reason to do that my understanding is in the district court context that the addition of  successor interest is necessary not necessary that had it as a party that it happens automatically and that it's a matter of convenience as to whether the successor in interest is actually added as a porty or not but the parties really have a brief this issue very general i mean obviously there's very little law if any concerning the board but there is quite a bit of law in the context of district court rule twenty five an  district court context your honor i think is a factual matter i'm sorry your honor if i may finish the question so as a factual matter the parties in the district judge bremer found that mojave is the successor in interest that it did purchase the assets and that issue was was briefed was decided and unlike were what it was before the board  actually had a chance to to be heard which did not happen in front of  with the standing question because i think that the discussion previously here has it exactly right and i want to apologize because i think our papers didn't quite set it out as articulately the problem here is dog had no standing at the time and filed the appeal because dogs had no liability for infringement because dogs was dissolved in bankruptcy and all of its liabilities were shed so it is no different than anyone else because dogs since dogs had no potential liability for infringement there here's the problem what should have happened is that mojave should have filed an appeal from the patent office his decision not to allow mojave to become the real party in interest because i don't i don't see that to argue that but but put that aside for a moment that's not a standing issue the my st question is more harvey has standing doesn't it because it's potentially liable for infringement damages that's not my question are you willing to stipulate now that mojave has no liability for infringement damages so i want to answer your question the only caviar is there is an offset that is better argument that they and even if they became the successor in interest and could have been able to step in to into the shoes of dogs for purposes of people isn't your better argument is that under forty three they had to do that before the filing they had to make the filing on behalf of dogs which would have put them under rule four thousand three hundred and eighty two dollars and instead they didn't correct they can't now say because there's not an interim death of the corporation they can't now say that they should be substituted in isn't that the better argument i think that that is that is absolutely discussion is is that the way that they did this is that they filed the appeal as dogs not mojave and tried to do the substitution after and dogs couldn't file the appeal because the one thing that is indisputable true that everyone agrees to is that dogs had no right in this proceeding and if dogs has no right in the proceeding dogs cannot file the appeal mojave had to do the substitution and it had to do the substitution below because according to what mojave told the you have to have the right to file an appeal and dogs didn't have that right according to mojave well there are cases that say at least that the that the appropriate practice the supreme court said itself that you should go back in the marine ok said that you should go to the district court and ask to be substituted at the time that the that the change in interest occurs and then you appeal from a decision if this if the lower court denies it did say that whether that applies in the board context or not is a different question but i guess my question is even even if it doesn't apply and we would say you automatically get to step into the shoes for purposes of appeal you know especially if the board didn't let you participate then but even then under rule forty three dollars you have to do that if the change in circumstances exercise their right not file a filing on behalf of dogs that didn't have any such right not show the entire design but trying to help me address address my question is your position that there are features in the claim design that aren't shown in figure eleven or is your position that figure eleven doesn't preclude the possibility of additional features in the prior art our position i think your leaven doesn't show claimed features and that in order to do that in the st y the nd is also true but the primary problem here is that the standard requires you to compare of design to the whole design and that is not possible where the combination reference figure eleven doesn't so the inner side portion of the front the rear in the bottom of the shoe all of those portions of the overall design had features in and them without a reference for those features you cannot compare the entire design and that is it no hobbes argument sort of starts half missing the st part of the standard and the st part of the standard is that the the single prior reference has to be identical in portion of the shoe depicted in figure eleven it's only two outside to the entire inside of the shoe is not depicted in figure eleven ok without that of what else is depicted or the bottom of the was missing so if you don't have the entire design you cannot do a comparison i what what what mojave argues but that sounds unless you have the entire design you can never make a pair you have to have sufficient information your honor in order to know that you are comparing the entire design that's that's i mean that is what every single case that is discussed this issue says that you have to compare the pot into design as a whole to the reference as a whole and if you don't have a whole design in the reference you cannot do that comparison if you don't have enough information i mean taking their suggestion to the extreme if there was just a picture of the top of the shoe and it was identical to the design then you would be able to do that comparison if that was confusing enough and you don't have to just be able to throw out all the rest of the design shoe and there's not been a case ever that is suggested anything like that in fact all the cases say exactly the opposite that it has to be identical in all material respects to the invention and that's from high point that the ordinary observer test applies to the patent design in its entirety as it is claimed and that's in the cox case in the bronx and so there's never been a case in which you can have have enough information to have the whole design is somehow the same thing as just a gross number of views that you are comparing are are none of those cases say that in the hope case they say well the advertisement only had one picture in it but that's because when you look at the actual patent issue in the case there was really only one figure that depicted the entirety of the design because it was a top down view in a bottom up view they were basically the opposite of what in the leonard case the letter case specifically says that the district court correctly looked at the overall design and didn't actually and didn't go and try and only look at portions of a design they say that in the croc's case that the fact that this court had pictures of only three views meant that the court in the croc's case was basically saying that you don't need to look at the entire article in order to do a comparison and that's just simply not true that the case says that you look at the entire design i know that the federal circuit had the actual shoes of the accused products in that case and i didn't i don't mean to speak your hon about international seaway but their argument i don't think can be squared with that case because if a different a potential difference between one portion of one view of the foot that of a shoe is sufficient to preclude summary judgment then they can't have anticipation as a matter of law here because there's so much more information missing in this case on the comparison of the views than there was an go back to the issue of standing and clarify when dogs five year old the appeal it didn't have standing because it would could have been i'm sorry your honor thank you i want to go to the go to the standing issue that came up and in particular comment on the notice of appeal issue so that in our in our view the notice of appeal is not a standing question at all relevant times either dogs or my hobby had standing there was an immediate immediate transfer of assets and they had standing now in terms of the notice of appeal motion to substitute the rule makes it clear that dismissal of an appeal should not occur when it is otherwise clear from the notice that the party intended to appeal the court determines its objective really clear that a party intended to appeal there are neither administrative concerns nor fairness concerns that should prevent the appeal from going forward and that rule has been discussed and adopted in a nd circuit case as well that we cited on our that we cited in our motion to to substitute and so your honor if i may submit that that the notice of appeal the procedural issue of whether mojave was identified in a footnote or whether it was actually pallant has no bearing on standing and should