laid them out in your brief but if we can just go a little bit in the different direction and that is under egyptian goddess this inquiry is supposed to be in the context of the prior art does not and so leaving the sides your particular argument isn't it fair to say that the accused to buy a house is more similar to the prior art like whatever you call it then to your design and isn't that something that one can look at and say that's very provocative in terms of what we should do and for example one of the issues you really spend a lot of time on which is a clear window clearly cover whether or not that functional or not that was also in the prior are right to doesn't that which looks to the ordinary observer the ordinary observer to suppose be informed by the prior art so in that context if we can look for a moment at the ordinary observer or perhaps the ordinary purchaser of a cosmetics palette that ordinary purchaser is not only informed by a particular design pattern for instance found in the p t o s database a hypothetical purchaser because many pallets might be a nineteen year old woman who has seen and all the prior art that we laid out it was very cluttered and it was it looked very much different from the z product design busy product design  overall visual impression of that product was very clean very long cluttered it's got relatively straight lines and what about the light and prior art i mean it looks like it's a large window on the front that exposes all of these dividers on the inside so the dividers are very apparent to the potential purchaser to the ordinary observer it's quite clear that it's not this clean monolithic looking state of the product design but if you're looking at the clear cover and i know we're going to look at this proportions of the window to the to the outside frame are different between what's in the clean pattern and in the juice product that's that's correct i think the important cosmetics powlett is pretty limited something that's more ubiquitous would be safe cell phones if we look at cell phones ten years ago and you look at one it's loaded with buttons it's a very clever look it's got buttons everywhere and then a few years ago a manufacturer came out with a very clear monolithic flat phone and that was clearly different from all the prior art so it warner e observer would be in terms of the overall visual impression he would probably be taken by the clean the clean uncluttered look at this fall if an infringer came out sixty days later and came out with a similar looking phone but just changed up some proportions or changed up some edges the ordinary observer would likely see that it's the same uncluttered look and that's the novel aspect of the invention so of light and as you look at it the it has a photo or appearance because of all the all the dividers right that are clearly visible through the transparent window so the overall visual impression on that product is going to be clutter it's not going to be the clean uncluttered look of the of the product design not making a claim to the general configuration of a cosmetics palette that uses a transparent aspect in the upper related that that's a functional part that allows the user to see the contents of the palette however here and that's that's right but but there's a there's a big difference between the general configuration of using some sort of a transparent aspect and then making particular design decisions based on that now a transparent aspect could be something like an upper layer that's completely transparent like a clear plastic lid that's a design choice another design choice might be a rectangle with rounded corners another design choice might be  where one has functionally equivalent design choices to make then yes that the design aspect of using a rectangular window should be protectable so w what is the what was the error that you're alleging the district court made if you read that the fact that the clear window is a function characteristic so what is it in your view that he should've looked at and not with respect clear window with respect to the claim construction the claim the construction doesn't mirror the invent aspect of the device well i certainly in the district court didn't talk about the rectangle window in the class structure so that seems a little problematic to me but in terms of looking at infringement he certainly did he looked at your rectangle in the shape and size of your rectangle as opposed to the macro and any found the area of the window is substantially different and so even if you may mean you're not telling me he didn't look at the size of the rectangle that's clear in the marker he did he did absolutely one thing for instance he did not do was to look at the overall proportions of of the choose device  compared with the design pattern those are those are identical he didn't compare the overall proportions the only proportions that he compared was the window size that is different but a lot of the other you think when you mean overall proportions you mean the exact outline if you put one of these on top the other they would be the same exact size know the proportion between the window area and the outside frame in the top religion that was the only comparison performed size in a size perspective by the district court he doesn't talk about different portions that you're saying not all the portions because there are portions of it in his opinion is talking about fortune what we pointed out product and of active design and that proportion was not analyzed by the district court also the one the height the proportions none of the proportions understands that from these things are the same of what he's doing summary judgment is pointing out here are the four things that i think are different and given the more differences no reasonable observer would find infringement but  in doing that he's he's given no way to the to the overall a manner say what you're saying i am struggling with how you would ever do what you're trying to do in summary judgment i mean if we have to use words describe the different features and if you look at the saying separately and use the words to save the lives different the window size is different got falls into what you seem to be suggesting as i strictly by it is your view knowing that he didn't look at this and say well these are the same size they both have clear windows they both have in the lead but these other four things or different enough to make them not infrin didn't look at the significance of what i'm thinking about in the worry of server that that hypothetical nineteen year old woman who goes into law and sees the cosmetics counter the distinction that it's hard to fathom that the that person is going to cases why would an ordinary observer say this kind of looks like a block with such a box the overall visual impression of this is is going to be that it's a rug in light of the prior art it's very rectangle in squares at part of a single claim so what are the warning mountain ornamental and elements there is not whether it's rectangular square it's whether it is look like it's whether it has a flat hand it's whether the li extends beyond you know this case has always been about those not the proportions but it's been about the clear top in the empty space because we asked them in discovery why do we in french and that's what they told us we took the deposition of the inventor in their in their president they said it is because it's the same because it has a clear top and an empty base and as was pointed then pointed out during argument here mack m inventor hearses herself and depend on the product is not skewed in that there is a functional element of that well i understand that i agree that but it seems like there's books and so when be would be confusing to into buying this product versus ours because of otherness that element is their burden to demonstrate that this is actually perceived by the ordinary user as an ornamental element as ordinary observer test seems to be inherently have that a factual question right correct but but there is a you know a process here we engaged in discovery we took their deposition we asked them why do you have this and they said it's because of the utilitarian aspect of it so we move for summary judgment is their burden to a post summary judgment to demonstrate that people are mall yes they do they need to they need to demonstrate that that actual the individual to other than the plaintiffs purse the perceive it has been a static element and they have not done that they haven't met the burden in this if you're i'm sorry a functional purpose for the forty design element and they're trying to overcome that i think well it's really people are really proceeding then the ordinary user is really getting exactly backwards it seems like on summary judgment if you have an district court concluded that is a conclusory statement that's not supported by anything but after one designing it i mean she understands the whole point of this and in and she also has i mean your argument if you take it to a string would mean that all of the stuff mere case and i you know as a district court pointed out in it in its opinion is the is the element dictated by its function and the function here is to allow people to customize it and they have not come forward with any well articulated power to do this seems to be another way of if you phrase the question in a certain way it's functional if you phrase the way questions a certain way it's ornamental i mean if  so the purpose as they've said they said of having it be empty so you can customize they want to argue that it also provides of a clear look but there's no evidence independent evidence to support that same in this court said look they conclusory assertions in the complaint even even at the pleading stage is not going to survive it has to have to be some basis for discerning this and that's the same thing with with their assertion that this is a as opposed to functional what is the basis for that and there wasn't any but even putting that aside in light of the prior art which is where we begin on this what is what is the symbol the what are the distinctive  back because we don't get divine patent cases that often so this is just really moved to a question because i think in the prior discussion maybe maybe not we've collapsed to factors is that your view that this ordinary observer test also goes test and the court said you know this court said that really regardless there's still a place for claims instruction in design patent cases and the amount of detail that is put in in that language direction is up to the discretion of the court but one area where that's going to be useful is identifying the scope of the of the claim and it specifically referenced the you know discerning between functional and ornamental elements and here this case comes down to these two elements clear top and an empty base because those are the only two elements that have then identified as  being infringed as part of the discovery when we you know we brought our motion and the clear time out is functional so you can see what is inside there the empty base again we submitted it is functional so that you can put in whatever you like and so they're there but to get back to your question it is for the court to decide what these elements are because the court decides what is the skills of the design pa that that are very similar you have the richardson versus stanley works case that involved a utility tool utility tool had had a hammerhead it had a clue that a job and it had a crowbar and it had  handle a longer handle and this port said those are all functional elements a because because they all serve a functional purpose now that does that is not to say that there is no design element there the cur of the handle this that the that would be an example of a design element but the mere fact that there was a hammer head that there was a clause that there was a crowbar in this tool that is functional and the mere fact they had that can't be a of you know it could be done in a number of different ways to give the same option for their son at least for a while back to the fact that it's completely i would i would respectfully disagree with that because if you start putting any dividers in there all the sudden you're limiting the ability to customize simple whatever cosmetics you want into into the space here they're completely devoid of any dividers perhaps that there was a unique pattern to some divider leaving it completely open it's a design choice for functionality for functional purpose so you can put i have had separation between two items that you're putting in there and here the design choice was again for function two to leave it completely open so you can put whatever you like in there and it in the other case i was going to mention with the i done case and that involved a football that had a halo and and  feathers on it so you could throw it farther than a normal football and this court said those elements the tail and the feathers those are functional so the mere fact that in that case that sort of case because then they did consider some aspects of the fit for purpose because they're so vast but of the design of the sand in the and printer analysis that was a case where they kind of split it up and that there's even though it's functional there's still a design aspect to this functional so even though it is it is functionally human you can have in order to mount elements with here we have the absence of any ornamental element we have a pure functional element a clear top and an empty base because of that  port correct in factory mode elements out and in the absence of that determining that there was no basis for infringement thank think if you  thank you i just want to dispute three points in terms of maggie asking z pride's why do we infringe that was discussed on page twenty seven of their brief and that was another mistake that the district court palette embodies the overall visual impression claimed in the six four two seven four three a second point i want to bring up is evidence of confusion if we just look at the ordinary observers that are out there in the marketplace plaintiff does that the district court can always come back and say well they were confused for other reasons they were confused for reasons that i factor out and it that's what makes this very difficult in summary judgment we can anticipate what the district court is going to factor out nevertheless these were very purchasers have documented a fair amount of confusion much confusion in the marketplace the third point i want to bring up is with regard to odds on into richardson the individual design elements were not factored out it was the overall configuration in other words the idea of a football within as as a general configuration was not