ford that the components of the f one fifty truck infringed upon put in the headlamp design pattern since the f one fifty truck that was sold under ford's allegations in bodies the subject design patents the f one fifty truck can be repaired under the repaired doctrine without infringing the design patents now ford cites the akan case that involves the knitting needle but let me distinguish a can it make two important points first under the repaired doctrine it is important to identify what the article of manufacture is so you can see if the repair applies is the article being repaired is it being replaced is it being reconstructed to be a king case was utility patent case and so in that case it was clear what the article of manufacture was deciding for an article of manufacture that allows a portion claim in and design patents and it allows for potentially multiple articles of manufacture and components there of  the main body of the claim design that point the exact point is made by the supreme court relatively recently in the samsung vs apple case when they said that the term article manufacture was broad enough to include both a parent and a component and they said it was aimed to do it and since there was ambiguity they needed to separate test to determine what the article of manufacture was that they were doing that under section nine the damages statue and they remanded it to the lower courts they came up with a four part test that has not yet been reviewed by this court but the important point is under the design past statute you don't know what it is and so the question becomes how should we handle the article of manufacture issue in the patent exhaustion repair context we say that the test should be if the article saw him body speak lame design then that article can be repaired without infringing the claim decide that's the test in fact that's the test that was already but if you agree that that article can't be replaced it just has to be repaired well the article sold in this case is the f one fifty truck and so we're saying is the design are those the subject of the patent not necessarily i mean the design patent has a certain claim to it in the drawings and it has a title in this case the title is vehicle vehicle headlam again the core issue here is are we talking about replacement of the litter headlamp or are we talking about repair of a truck and our argument is that under the design patent law since it's a design or an article of manufacture you should look at an article of manufacture that the embodies the claim design and clearly the f one fifty truck as a whole embodies the claim design so the headlamp a yes it also it also sets right and also by the way if there is ambiguity why is that a question for this court i'm sorry if there is the ambiguity why is that a question for this court i mean i am i correct in understanding that there 's attempts in kyra's to clarify this or do i understand that there have been attempts at doing that but we say it can be done as a matter of judicial interpretation and application of the patent exhaustion doctrine to design patents and i still don't understand why there isn't a distinction even if we're looking at the whole truck between repairing it and were whol well it depends on in in the so let me leave that in the context you're not biting you're allowed to repair something by replacing the component you're allowed to do that is long as it's not a total reconstruction of the article of manufacture that you're talking about and here again we say where's your support for that i don't understand not to me it sounds like you're saying as long as it's a the article of manufacture can be the f one fifty truck and if you're just replacing the hood or ed lamp i would suggest you're just you're repairing the truck when you seeing tenby that's where you get a little concerned because what if it's in by the way the design pattern is not for the entire head lamp or hood it's for components up the lines now so they could be subcomponents sure because when you have this ambiguity the repair doctrine is based on implied license and that goes to the reasonable expectation of the of the parties and so if you have ambiguity here on what it should be then i'm the one that you choose is the article sold here f one fifty that's been damaged and they need a replacement part would be to have the headlamp right i can it would be the replacement part so it depends on the manufacture if that embodies the design patent that can be repaired and in fact is the test that we're urging upon the court i see i only have five minutes left if i may just go to  functionality argument the key here we're basing functionality on the reasoning in holding in the best law case in that case best luck obtained a design patent only for a portion of the key and not for the entire key lock combination that was done in an effort to control the market for replacement keys just like ford is trying to repair trying to control them for a pair parts here this  consequence of getting a patent on something is if it's patented other people can't make or manufacture or sell it out so it's a license unless it's functional in this case the best lock reasoning was based on a concept called complimentary functionality and if you if you have a two complimentary articles like the lock and key and you've only obtained a design patent on one then the designs and here's the key point the designs are not analyzed for functionality when they're originally created but rather when a replacement part is needed and so in this case in the best light case the key had to look a certain way in order to restore the combination same complimentary functionality also exists in this case your interior about all time do you want to say that up just say that it's complimentary functionality because you must return the f one fifty truck back to its original appearance and because complimentary functionality does not depend on mechanical or utilitarian it can also be based on right to obtain repair parts and that protects the manufacturers and distributors of the repair parts including new world if the case law is we cite kendall but that also cites standard haven's heroin thompson and electric company back to eight hundred ninety seven i believe the only requirement is that the part is being used for repairs that like in the have maybe you might need a pre approval but in the repair context in these cases they say you don't need the pre approval and as long as the parts are being used for repair then the manufacturer and distributor are protective of the we've heard dr thank you plate would actually we fit into the queue way and make the lock work there is no clear and convincing evidence here that there is anything remotely similar to stall and as you pointed out there is an entire market of so there is added two responses that the first is that there is no evidence certainly not clear and convincing evidence that anyone is required to do that people need choose to do that because they like the way that it looked in the first place and  purchased it in fact because they like the way that it looked in the first place but as the what about the emphasis on certain proof sure there is that there is a reference to insurance and there was a witness who provided a couple insurance policies and said insurance company will only pay for something that matches the same thing that was damaged what a third party will pay for has never been held to be something that would impact the patent eligibility of a design and secondly the fact that insurance company will provide a certain amount of money doesn't mean that the owner of the vehicle has to use that car the owner of the vehicles and title to take that money and put on any part that they want to put on so if they prefer a hood that has a different set of elevations and depressions or they prefer one of the headlamps that as a bee gee's a b s on witnesses said looks sporty or there are certainly entitled to do that in the insurance what insurance will pay for has no impact on what is alternately put on the vehicle and i do think it's important to remember that it was the eighty's burden to come forward with clear and convincing evidence because this was an affirmative defense that they were offering it and they lacked evidence you can see that that is number of their responses to requests for admission and in a significant amount of their witness testimony which we have cited extensively in our brief where they acknowledged that there are all sorts  of ways in which other claims and headlamp designs can in fact function and they disclaim the notion that they are arguing for any sort of utilitarian functionality and really that puts them i just want to make one more point on functionality which is that in  what this court said is that consumer preferences are not enough to find something functional that was a case about surgical instruments and one of the things that this court said in reversing the district court's functionality finding was that the fact that doctors may prefer a certain hour range made the buttons and that the set up of that surgical instrument doesn't make it functional if in fact other designs serve the exact same useful purpose and that is really i think puts an end to what the a p a is arguing here that brings us to their exhaustion argument which they spend a lot of time discussing with you all today the exhaustion argument that they're making flies in the face of case by dating back to the  case involving the knitting machine and knitting needles that decision agan which was subsequently approved by the supreme court in the morgan envelope case says that that exhaustion does not extend to someone has driven off the lot with an f one fifty they can take the heat off and do anything with it they want they can take the headlight lamps out if in fact they replace them with sporty or performance parts they can sell the ones that were on their original vehicle absolutely a nd that's not what this case is about buy from akin to morgan envelope to aero involving the convertible tops to this court's decision in the health for each case the question is whether or not the component being replaced is subject to a patent and i'm touched a patent to use ability to prevent a buyer from making new copies of a patented item and that's what's at issue here the a t p s members want to make new copies of patented items and make them available for sale that's not something that the exhaustion doctrine has ever allowed to happen and in fact in the hell for its decision it's quite right out of its way to stress that the court should be very cautious about extending it expanding the exhaustion doctrine into any new of the issue is how do we apply pat exhaustion to a design a patent case when the statute says designed for and there are potentially multiple of articles have been fractured unless under the facts under the complimentary functionality doctrine of best lock that doctrine properly prevents design patents from controlling the market for repaired replaced parts and that's really the key when you have a repair replacement part issue and that will that's what needs to be focused on in best lock this court did not allow that control to happen it should not allow that control to happen here and you could do it through ornamental functionality if i may have been of the ten seconds if the patents are not invalid then they are exhausted because the f one fifty is an article of manufacture that him bodies the claim designs in concrete be to be repaired under the repair dock and again that is the test it's already been used in this case