in place and let's begin  all four of the prior art references that were relied upon by the district court chief step of state explicitly only cover the nipple and ariel it was unexpected your honor that by taking the circumference of the device and expanding expanding the perimeter of that would result in a device that was actually less visible making a bigger would make it less sense is it not totally predictable totally expected no the issue with woodley was not that there was a tapering that was problematic that you could detect the taper the issue was the edges your honor it's about the poor for the edges and there was different types of cover for the purpose of a device that was designed to be a nipple cover it also top only cover the nipple ariel web but doesn't a tory show covering different portions of the breast in terms of size area cover it shows two different rahner shows one that is the nipple cover that's designed to be less visible and also sharp shows a full covers devise and that's where the prior art taught wrong or you need to have a full coverage device usually for purposes of support or security or you'd have if you wanted to make it less visible smaller now your claim if i recall only correct me if i'm wrong if the coverage says it has to be more than half but less than all that's correct and that would include say ninety five percent coverage right i don't know what the exact percentage would be your i that's not the record i want ninety five percent if it's more than half and it's less than whole gap between the edge of the cover and the the folks there are the breasts so that the coverage hit the curb portion of the breast that's what has to be less than all ok if you had ninety nine point nine percent it would not be there ninety five is getting close i don't your argument about the prior art in no way suggesting blacks method if the if the prior art said you can cover just the nipple or you could cover a little more or you can cover everything then why doesn't that suggest you could also cover three quarters it's not a matter of could your honor why would somebody do it would there be any benefit in doing it persuaded by the teaching away argument and you made a second distinct argument i thought but it's a little unclear exactly what it is we have a couple of other related arguments your other your honor one is this one is that that the perfectly is less visible if it's made bigger and that comes from a couple different there's a fountain how is that unexpected beat any any device that is intended to taper off to provide some smooth transition to those the the longer a more gradual the taper the less visible the transition because you're on of the the invisibility doesn't come from the relative degree of tapering we're talking about a device it's not that they can the center it doesn't taper over that long distance and so whether it's tapers over half an inch or two inches that the slope is not significantly different that if somebody looked at that said well look i made a bigger i might have you know a lower slope somebody would say correctly that's completely irrelevant it wouldn't have any impact that has zero impact or lives so that benefit nobody would consider it that expectation would not be a seemed to talk about this as a as a as a factor let alone a significant factor in this invention i agree your honor the benefits were not disclosed in the pattern there unexpected why the benefits run expected and what they were those facts were not opposed by any other evidence therefore those facts have to be accepted for purposes of summary judgment so we start with that factual premise we can start with any other  moving for summary judgment we still have to accept those facts because there's no evidence on the other side contrary to those facts so we start with the facts that the benefits run expected this bit is articulate of a doctor to group and that has to come to the basis of the object interest decision i don't believe you can get to obviousness in this case when you accept the facts about unexpected benefits the third or your honour's is that the prior are would not elements you know you don't have to take every teaching of a prior art reference you can mix and not you can think teaching one from reference a and teaching three from reference be in teaching six from reference the there is no case law preclud evidence relating to secondary factors additional evidence there was evidence there was under speed of a long felt unmet need that was met by this invention the need had been present for decades it was in disputed structure and additional features it had one other feature on which was the put in the middle makes a difference does it not if it doesn't run for we submitted evidence that was on rebutted that the clip in the middle was not the basis for the commercial success of the new bra the other even brought this devices had clips in the middle and yet they didn't have the success of this this film a different need and that was because of the features of the patent invention decision was wrong the uncontroverted facts in this case show that a jury or any fact finder could only find this package to be invalid i can explain why very briefly asserted of number of bases why the pat was invalid only to matter for today one is obviousness under section one hundred three we also asserted that there was a failure to meet the written description requirement under section one twelve that become important in a second what was uncontroverted with regard to the obviousness issue was that during prosecution of the patent it's uncontrover that the elements of the claims were clearly shown in combination with prior combination of prior art references except for the size of the material it's uncontroverted that the size limitation they approximately one half also on controverted that they had tory five fifty patent wasn't before the examiner and that it does show a range of sizes of breast cups from a nipple cover to one that covers substantially all but not all of the breast when you put all those together what the district court said yeah backyard inventor this isn't rocket science what they're trying to do is meet the sensibilities of the wearer and some will want it's not analogous are that's what they the only argument they made before the district court but i get what point you to the good toy ads eight to ten in the appendix it's clear if you look at twenty five they're talking about problems with the priority it spite of these disadvantages for a zero zero and right use in order to correct the shape of the brass and prevent the shape and color of the nipples to be seen through the that's the problem that we're talking about you go down a little further to cut the same column lines thirty three they're talking about why people would night night and where  year another reason for that reluctance is that the nipples can be seen through the part that's what this hatton talks about is the background they then go on a corrie addresses the droop press but that doesn't make it non analogous art as a supreme court said in k s r a patent can teach multiple things and the fact that it may address one problem but not the other it still would be considered by someone of the ordinary soon the art and if it rose that provides the motivation for combining that's what the district did it it would have been obvious to someone or skill in the art make the size difference and the exact size differential is shown and there are very five fifty now  taken from the prime combined with what was before the pattern and the reason she didn't do that is the problem they had with the written description require with the written description juggling was correct there is no discussion of this importance of the size differential in this at and this was an afterthought by the patentee in the examiner years after the application was filed as a court might the only reference to the size eighty nine is in current two it's line starts or line fifty have come to this is pretty close language what was it a tory by the way the n of sufficient size that it can cover users and ten little one aerial the covergirl also extend a short distance beyond this area to ensure complete coverage that's the whole description then you go there is nothing in this specification that talks about that upper range of less than the entire rest does it cover eighty percent up to ninety up to seventy god there's nothing in the that language is the entire language on the side that doesn't support the language in the claim it's ok there's nothing in the spec let's look at the figures well figured run is the preferred in  and that's the preferred about him it there's nothing in the figures to support that higher marriage we can argue as we did on our briefs before the district court about whether it shows approximately fifty percent but i next set up to tying the reason they are for they it for them to get back to this written description they would have had to put in a declaration saying someone reading this the score which are ordinary skill in the art it would have art it's in patents invalid on the one of the great if it's not obvious to someone of skill the art it's invalid under the written description and therefore they couldn't put in evidence even right because they  summary judgment on the written description report either way if this one got went to a jury the jury could find even the right whether it be obvious to want to skilled in the art and the patents invalid it there's a characteristic that would have been harmful to the project at product and went to work there's nothing in the prior art that says that some of them may disclose small nipple covers but they don't say don't make it larger it won't success has thirty patents of its own because of the benefits of that class when we my client sware are trying to sell their product the same people who have at their product and it wouldn't meet any one's needs nobody would buy it the same retailers that they are suing here for selling the new refused to consider even selling their product it didn't meet any need need whatsoever by the way before the district court on the nexus issue the patent he argued that it was our burden to prove that there was no nexus and so they put in no evidence on the nexus issue that was only right that the issues raised here briefs counsel said that the only thing we argued below was that her tort was not an analogous our that's the only thing we did not argue that was not an issue where there was analogous or whether it was part of the prior or else is that we didn't put in evidence that tor i wouldn't be combined with the other references that's not true all over evidence showing non obviousness showing that one of the workers killed would never thought of buying these focus specifically on that or if i could show that the undisputed evidence in terms of what we have to have a reason to combine them there was no reason to combine shown it in the district court or on appeal the reasons that were proffered by the fenice by coun have shown in our brief don't make sense or of a contrary to the facts counsel said that the made this is the argument about teaching away saying that if the pirate didn't teach away with teaching ways not merely saying that something is bad it is also saying hey here's how you need to do it they didn't say don't make it bigger what they said was only make it smaller use the word only we're only highlighted in our brief as