good morning your honors and may please the court the jury in this case found that the only asserted claim to a segmented retractable tarp for a truck over was invalid for obvious things i submit that verdict is amply supported both by documentary evidence in the form of a number of prior art patents as well as testimony from witnesses including the mine's expert witness both on direct and on cross examination i further submit this evidence is more like this event was the straining office practice and procedure so he was not testifying about legal questions as a patent expert he was testifying on factual questions that's correct is that i mean the case you cite new yellow reef just support that the snowmen are that's the only he's not qualified as an expert at and recognize that left or i think the answer is yes and i have a couple responses that one is testimony came in without objection so there's no there's no argument here that that testimony should be stricken from the record that's point one point two is this is a fairly low level of tech technology the person ordinary still in the art is a person with a high school degree and some experience working with tarps so i'm not certain that a lawyer simply because he's a lawyer precludes him from having the information relevant to the factual questions such as what will in my appreciating that argument to be that while the district court didn't explicitly rule him to be a technical let's to he nonetheless accepted his testimony on the technical issues mean it seems to me that the facts are undisputed the man's got more pro gun chills than the person who are near his skill and the are in the relevant fields though and that's generally what technical experts have so i guess i you agree that he should be testifying as a legal expert for the term i mean the fact the matter is even technical experts will often all too ultimate conclusions i mean on the question of obviousness i'm not sure there's anything improper about judges denial i think there is mixed case law on the issue for from the various courts and this court has accepted that testimony in some cases but regardless i think there's also the further point that  i'm not even certain under this court's precedent such as the union carbide case that technical expertise even necessary in this case given the given the level of of the technology at issue the jury was properly charged on the law and was free to make make its judgement calls about what prior references thought and what they didn't do much just by looking at the prior offenses themselves and listening to the testimony of fact witnesses including me namely mr bliss the the lawyer we've been talking about well mr de mani testified and was ask questions about about segmented tarps in the prior art mr marlowe the patent he was asked questions on cross examination and direct about about segmentation in the desirability to have it into our system so i  through what the proper a reference is teach and showing them statements in the prior references and point into figures and features in the prior references in terms of you know walking the jury through what those references show which i think is fully consistent with what what the supreme court is is talking about a case are in graham vs john deere so i do think that there was ample evidence before the jury for them to you know for them to make draw the  be construed in such a way that it would include independent removal of that to serve the indecent argument is that the claim was construed and it's construed broadly to require only that anyone cover system can be removed from the from the whole system and could disturb the adjacent yes there's nothing about disturbing in the claim construction that was given to the jury in this case that that argument crept in in the reexamination proceedings as we've been showing reconsideration in this for a short while argue the opposite in relation to the infringement issue what we said was that they had changed the construction of independent in the reexamination and that under that construction we don't infringe because if you are certain of that construction which would be it has to be able to remove it without disturbing that's correct but that the instruction it was given to the jury in this case and which the jury made its obviousness terminations on was the broader construction that requires removal of both systems and that came prior as i read read the file history to the reader that they now have sort of changed course and and offered more narrowing construction themselves during prosecution rates and things like the second re examine that right that's correct the jury verdict came first in validating it based on the district court's claim construction which was not  sucker that's correct and in fact the construction we're relying on was probably so i say it for purposes of the obviousness verdict that's that's the landscape we have and i don't i don't think would be appropriate to change the landscape  now standing here and i think it's pretty clear that the whole reference even if you accept their you of what it teaches terms of how you remove the segments and all the times that you can remove a segment without removing the adjacent segments from the system there may be some disturbing them but they can be removed i would add that there is as there is an alternative teaching hall of attaching segments along the sides of the bows and in addition mr bliss testified that as it was a very thorough reconsideration on your honor i think that case are gives you a series of factual settings that you can look at all of which can provide that explanation as to why something would have been obvious or was or was not obvious and i think motivation to combine teaching suggestion is one option and now the jury here was charged had to find it and it did and but i think so i think it that's highly relevant  hotly disputed between the parties as to whether on that factual issue but i think a s r offers other options which i think are also applicable here such as suggesting that you can look outside the field of endeavor of the better for solutions people have  put into place in other in other situations that cissie with that solution could also be applied here i think case are also talks about you know if you're off while you're doing it's combining a known techniques or known methods in a predictable way that's another way you can arrive at the conclusion the that it would have been obvious to you in the ring that so is that your take on what happened here with respect to the district court is that the  that he misconstrued the truck environment the analogous art question and therefore he focused almost too much or exclusively on the motivation to combine in for an explicit motivation i think that's clear from his opinion granting jama well in this case that he segmentation so i do think that's pretty clear from his work and the issue of how it was this argued to the jury in terms of motivation to combine that was argued by by counsel by counsel basically the argument wen something like this crumb marrow is has all we owe them it's except segmented tarps and we showed you tons of prior references teaching segment adding segmentation to a tarp system and pointing out the desirable benefits of the tarp system that's the essence of the argument as there was the reference in the closing arguments specifically to go whole into focus there was a reference specifically to hall and folks was referenced generally as  the it's not actually in the appendix that you have but in the full closing argument you will see counsel points out that in name hall but in substance other prior references that were before him including folks submit that there is some confusion about whether these this issue is even permissibly argued to the jury it's our understanding i was not truck counsel because our stand that during the charge conference the judge took that out of the pattern structures and if you look at the instructions you'll see is missing from the detail portion of those instructions but regardless the only two arguments of secondary considerations are made a copying and wrong felony and there was ample evidence on the other side of those issues from which a jury could have concluded there was no copying  invention and there was a long felt need for segmentation truck tires so i would submit that there was more than sufficient evidence to support that you argue that the charge conference the secondary consideration shouldn't be charged to the consideration should be charged or whether taking the position that the jury was charged on a given the given the grammar says john deere quote it's in the jury instructions but i don't know the answer to your question precisely other than i assume they believe it was properly witness list provided the juror if you go through all the testimony judge picked up on the point that the only evidence that was submitted was his opinion expertise and how do you put all of these complements to make the invention but it was argued by the posing council as to whether all whole should be combined with the segmentation and the argument of independent are they being removed that the segment being removed is removed independently of the other segments it doesn't say it sort of morphed into the discussion this morning that the other segments have to come up only an edge comes out it's no longer a segment in the park the claim only requires independently removal or do you understand that to me that means that you can take one tarp out of one segment without any edge or any part of the other parts being removed and second reexamination easing that's the correct construction or not it's not the construction that we agreed with the court ok so you instruction of the court was the one that we're arguing it's independently remove the segment is independently removal in hall you have to remove the section eighty five i believe the number eighty four eighty nine whatever it is both sides come out the one you want to remove the one you don't want to  fall off they drop down and they're no longer part of the roof they come up they both come up if you look at figure six a year your view is that on the correctly construction a lot doesn't cover a situation in which the jason panels are taken off the track even if they are not completely removed that's correct because that's that's precisely one structure might have to pull the claim construction out but that's what it says independently removable the segment you're removing is independently removable that's what it says there anything else that he said that supports your claim construction that's what the parties argued nobody argued otherwise this came in and briefing where now it's independently removable means the adjacent one has to come up to removed i assume you would agree that means taken off yes anyone cover section can be removed from the cover system without removing any other cover section so i guess i'm struggling to appreciate the distinction that you're drawing here but if i read that is anyone's cover section that can be taken off from the cover without taking off any other cover sections and she were leaving it ok well i asked you what you understood the word removed to meaning you take take take one section are without removing the others right and that's what we did but i don't and that's my guess i don't appreciate in the hall why it is that you're saying that well until rickman has to be taken off in order to remove the other section of the edge comes out whether you want to come out or not it comes out because you have to drop the pair no to release the section you want to remove you're saying if i'm appreciating eggs i want to make sure interesting your  al argument about the disclosure and hall figure six face plate eighty nine when you pull that off are you saying that by disturbing or moving or something the adjacent panel ninety two and when you want to remove in fact ninety three that particular portion of the segment to cover that is affectively removing it yes it comes out both of those come out when you drop the p comes out i guess on any removing is picking the thing up and taking it off obviously what drops out these are these are large structures so when you take the panel off both edges that are contained by eighty nine fall out there's no way to keep it up there are they come out and when you take the other one off the to remove the one you want to remove both of those edges come out as well so you have two panels that are great hanging there in and one your removed so they're not independent i kept it removed independently of the others the two panels that are hanging there though haven't been removed they're really not going to cover you cannot collapse it and bring it together they're great inside they're not they're not removed from the other side that's correct but they're not part of the roof any more they're not part of the system explained it's not going to destruction that you just agreed with judge moron  without removing any of the cover section somehow we need to knock well that cover section is no longer part of the cover if you collapse that if you take the one out in the invention  one and you bring them together they can they can collapse together you have a complete roof on the other hand if you do it in the hall you have the draping segments no longer part of the roo doesn't ok now let me ask you this one each side of figure one there is on each side there is a face plate akin to what shown in figure six correct on each side right holding down each side and connecting each side together not just one face on each side of this large structure holding the two types together one point each side everyone on each of sixty one sixty two sixty three sixty four sixty five there couldn't just be one on each side right there have to where is it discloses can i question the hole reference and that's what happens when you remove the face plate that this other thing falls down entirely no longer functions as part of the cover doesn't say anything in the hole so isn't it possible that since this is a question of fact and the jury rejected the notion that that other cover falls down fails to operate that way since hall doesn't speak to it well i think the  not contrive a weight pull that off without both of them coming up well they've made there may be a disturbance there but if the question is whether that's an whether that's a that's an independent removal well am we're talking about independently removing the center one of those panels and it's not independent if the other halves of the can of the adjacent panels drop out of the system that's not independent drop out of the system to you dozens don't function if they're not part of the right of them are they're not part of the cover even though they're still there on the truck and maybe still there on the truck as well but they're still not part of this  four this essentially is adapted to be moved independently forward and backward or be maintained in a lined and vertical position as each of these frames is maintained in a vertical relationship and adapted to be moved independently forward and backward were they if you just pushing them back that's what all these cables do that's why this system is very difficult to interpose on camaro or camaro on it all of the cabling are members that hold the support beams up there's no drive assembly the other thing i wanted to address was the the interest we had objected to the court denying interest from the date of infringement and he said it was unreasonable but there was no basis for is saying it was unreasonable particularly after he found that there were no lapses in the case and that the defendant willfully infringed we think we should be entitled to interest from the date of the about all they say you pop the faceplate off one of the bows and both of the edges of the segments that are coming in are somehow going to pop out of that and then they'll be dangling in some way shape or form so they get but to get a cover section alcott of all get using their view about what all teaches you have to go over to the other adjacent boat pop the cover off and then you'll be able to remove the segment that sits in between the other two segments whether edges may be replace you will stop the truck you will take it to the repair shop they will pop off the cover pull out the broken tarp section and put a new tarp section back in when it's my is my description of your position accurate that th their position your position is the it's it's removed when our position is that sufficient one to that our expert bliss testified at page eight forty three twenty three of the record that in fact he this i would further at that there were other prior art references before the jury such as folks that showed removal as well using methods that would not result in this draping of the adjacent of the adjacent panels so i think this is an interesting factual argument but it was rejected by the jury and there's other evidence on which a reasonable jury could have found in my client's favor on this issue and you asked a judge dyke about the closing argument i have it right here in front of me this is not in the appendix as we submitted our trial counsel for my client clearly points explicitly to hall and primary and then he points to he says we talked about swimming pool covers that's folks we talked about on ngs that was in other programs it was around and then he says you know basically makes the argument that there's it's not a great leap to take romero and combine it with the se gmented tarp structures to arrive at the quantum bench in this claim is not claiming a particularly specific type of a bow structure in fact they fought hard against a claim construct a work of narrative to a specific kind of structure because the  that we use is nearly exact it's functionally identical to the post direction you see in in the folks reference we've got the two you've got the two edges of the tar coming into a slot on the on the bo