granted summary judgment of obviousness after making numerous factual determinations concerning the graham versus john deere sac factors including those relating to the content of prior art the differences between the prior art of the claim to mention and also secondar considerations those decisions should have been made by the jury and should have been left to the jury and correctly decided they lead to non obviousness not obviousness the references look pretty close to me claiming hunch perhaps i should just jump to it to the obviousness you know what to do there and discuss those there are actually for what i call fallacies in the arguments at s m c advanced in the district court and which unfortunately the district court accepted the first of those if it's all through the red brick it's it's the words and then worth the nine hundred eighty six million worth of article discloses delaying the interfering signal so that it will arrive too late to interfere the problem is that's not what the in morse reference says and in order to show that we have to parse the language that's relevant here that language which is at a zero one five nine five and x is flow in plastic pipes including last fiber reinforced plastic pipes and speed and that's actually referring back to something that was known many years before in fact it's in mr lynn worse my nine hundred sixty seven article there is a good illustration from that on page thirty seven of the blue brief  and that shows a a flow meter that uses transverse mounted transducers rather than the axial mounted transducers of the padded invention which are on the ends of the two these are on the sides of the two and the with a greater component of its velocity vector parallel to the two back axis goes farther down the down the two this in turn can lead to simpler and more accurate ultrasonic flow determinations based on upstream and downstream measurements plastic tubing is particularly amenable to this application because of its low sound speed that's exactly the same thing that mr lynn wirth was saying in his nine hundred eighty six article except he said it in one clause because he had already said it in a longer form in this hundred sixty seven article he's not talking about slowing down any interfering signal this is a situation where you want the signal to go through the pipe ok so let's talk about acoustic short circuit what is happening with that one reference that mr wentworth m declaration that we submitted he interprets what mr lynn or said in his article as referring to the sound going around the edges of the two going going rather than through the fluid going around the edges of the tube and getting to the transducer on the other side which sounds similar to what we're talking about with this pattern however ob the solution there that's disclosed in the one nine hundred eighty six million worth article is the relative absence of acoustic short circuit and what he's talking about there is an opinion awfully long winded answer to what i would talk with a simple question which is what this convention is all about which is to avoid complicating the measurement of the thumb i have in the competing found get their per that's correct with it's to avoid having an interfering signal and this may have something to do with an interfering signal but the way that the linn worth article suggests to solve that problem is by attenuating the interfering signal to the extent there is one of the relatively relative absence of acoustic short circuit and that it has the common and the end you know what with the plastic right fluid but it had to it has to be plastic as well but not every plastic satisfies that requirement and then name five is a particular type of plastic that transmits sounds slower than what would you say not other then the plastic in general so we're in the best vacation can you show me there is an exclusion or a differentiation between type the plot and it is in the plane portion of the specification claims actually limit fluids and this analysis never really happened in the district court's opinion because the disk for simply smashed all claims together said plastic is plastic which which we have submitted evidence that that it simply isn't the case it's slower than the fluid and is there anything on the map to can point me to that suggests that something would be anything other than plot no no no there is so so perhaps there are of roughly and so that can't you know that it isn't surprising that it took a long time to come up with this that is that argument is not even made redbrick s m c is not advancing that argument in this court so the only other argument was that there can't be any long felt new need because this invention was disclosed in the prior art the trouble with that is that it assumes that it assumes obviousness if it uses an assumption of obvious say that that this factor the subjective condition of non obviousness is not present but that's what they have to prove they have to prove that that the invention is obvious not that that fluid then goes down here and then you detect that signal here so that tells you this time distance it would be under direction to hear you've got a signal to being generated it goes down here and that's then detected here and you've got the fluid going in a certain direction so obviously when you're going with the fluid it's going to go faster when you're going against the fluid it's going to go slower and this is all  because teflon bill who voiced the acoustic short circuit and let me get to your question what is an acoustic short circuit i told you that you've got signals going this way signals going this way there in the fluid you're texting i'm a girl into a computer  propagating in plastic a thousand meters a second and then he says he sat there then he says his clearly less than the sample ossining of roughly fifteen hundred meters per second for fluids already mentioned above so if you've got your speed of a thousand meters per second and fifteen hundred meters per second the fifteen hundred meters per second will  list little word has a very pertinent paragraph in which he says exactly this i want to delay the signal and you recall i gave you the illustration impact fifteen hundred meters per second per for  quarter a thousand meters per second for plastic lim with as the exact same thing he says fifteen hundred meters per second for the water and then he says the temps one plastic is thirteen hundred fifty meters per fifteen hundred meters per second so he's saying it arrives too late the reason why they use the term acoustic short circuit is because these are sound signals that's acoustic short circuit it just means it gets there too quickly through the metal it's a short circuit you get a fast flow there and when you're looking for a signal to detect as the signal of the fluid how fast it's moving you don't want to get the signal that went through the circuit which means that you don't have a signal going through the tube which is going to mess up your calculation and that he says had a relatively low sound speed in the plastic pipe which just means that the plane ten at the end so this would be a lamb twenty one twenty three talking about using plastic he says so that sanity energy in the material is strongly atten talking about the plastic pipe and he says this is so the end blocks not concerned with and the guide to which is is to do not function as an acoustic conductor if you have an acoustic stick short circuit you're going to have a signal that went through the metal and what you're trying to measure is the signal going through the fluid and therefore you don't want circuit the as to the question what is the invention of all about the invention is all about taking what he says is the prior art in substituting plastic for the metal because once you substitute plastic for said aha he didn't say to use plastic to attenuate the material into a he said he didn't use plastic to make sure the signal arrives too late to interfere and the level on that basis lou were has disclosure which would have prevented the argument that the applicant made to get the case alas out lately he said babel which was plastic he said you could use plastic he said a lot of other things but he didn't say use plastic because it slows the signal  than fluids much faster than met so so attenuation as disclosed in arms and that's the only thing that's disclosed in our homes there is no slowing down mention in arms and you didn't hear anything about that ok so the the portion of the hundred eighty six article is our submission is the evidence that dr anderson submitted in his declaration that there are two just different concepts one is the concept of slowing down the signal so that the angle of refraction is such that it gets a better mr murtha rather and that article the only reference to the speed in you know pipe or in fluid at all here the fluid is is gas it talks again about how it is easier to measure a clamp on the side is only work you have a slow bottom and you have a fast gas and the reason for that is again that you get the good angle over fraction in those those particular flow meters so and that's the footnote in the one nine hundred eighty six article it goes back to this earlier publication and this is all about what the prior art means what it's talking about that's that's at least two gram factors and those two factors are subject to factual dispute  district court simply assumed that what i asked him see said about them was correct there is evidence from dr anderson there is evidence in the referenced themselves that shows that that's not what it means and that that someone who was is taking one of these axially man mounted flow years where you don't care about the angle at all because it's the you're actually shooting the signal straight into the pot so there is no angle of refraction or wrangle of incidence that's different from