Legal Case Summary

Mr. Friedman. May it please the court. I'm Frank Friedman, representing McAerlaid's been rotten born as with me at council's table. This appeal involves trade dress protection and specifically the functionality of McAerlaid's orbent pads. For purposes of today's discussion functionality means the product feature is essential to the use or purpose of the device or affects the cost or quality of the device. Put another way, it's functional if quote, it's the reason the device works. That's what the Supreme Court said in traffic and what this court reiterated. Describe the connection between trade dress protection and functionality. Okay. If a design or mark is merely ornamental or aesthetic, it's appropriate for trade dress protection as a source identifier like the Nike swoosh or the iconic Coke bottle. If the contested feature actually makes the product perform better, gives a competitive performance edge like the dual springs and traffic then it's probably more appropriate for a patent case. And that's what I'm getting at is whether or not if you have trade dress protection versus a patent does one or the other essentially assume functionality or non-functionality. A patent is frequently what's going to happen is you're claiming. In fact, that's what happened in traffic is the advance that was made in the patent there. They said this is a performance enhancing advance, the dual spring. And so that was appropriate for patent. That's also why they lost trade dress on the way back because they had admitted it was functional and utilitarian. You can, however, get a trade dress as well as a patent. The patent being for the process and the trade dress being for a mark that people identify. Still speak to trade dress with respect to functionality. Is that assumed that it's non-functional under trade dress? It is assumed that it is non-functional. I'm sorry, yes

. It assumes that it does not make the product perform better. It makes it a source identifier so we know who made it or what kind of product it is. The patent in advance meant by McAerlade's here with respect to its absorbent pads was a revolutionary process for binding fluff pulp without using glue or binders. And this is particularly good for an absorbent pad because glue and binders in the pad take up space but they don't absorb liquid. So a glueless pad really is a major step forward and that process, that glueless process, is what was patented. So McAerlade's pads are bound by extreme pressure as they pass between embossed rollers and bonding occurs at the raised pressure points between these two rollers. First, the issue on the burden of this seems as though even the way the district court posited this, the burden definitely had to rest in a shifting manner, in light of the presumption that was there but the record does contain pretty strong evidence that would have indicated that that burden would have shifted. So is there really an error there? Well, that's a couple of questions, I guess. It starts off with the burden being on, the other side had to come up as we have a USPTO patented trade dress and we had to prove to them that hey this is appropriate for a trade dress, it's non-functional and we did that. So the burden goes to the other side. The only way that the shift comes back is if, under traffic, if the other side can prove strong evidence of functionality. Now, it's got to be very strong. In traffic, it was irrefutably strong essentially because we're on summary judgment. That's what we're not getting to, this summer judgment question. I mean, you can survive the burden shifting question but still the summer judgment question is going to be there. It'll be strong evidence, it doesn't mean it's all evidence. Well, it has to be very strong though but then we do have, if it shifted and we don't think it was, obviously our position is for summary judgment if everything is taken in best light to us that there's copious evidence. They keep saying in their brief there's ample evidence. That's not the standard. The standard is there's no, you know, there's no genuine issue of material fact and dispute. Here, there's a lot in dispute but the point is even under traffic's we then have, I think it's called a heavy burden to come back but we have evidence. So there's a big difference between this case and traffic's and I'll get to that now because I just want to make sure we understand that even if we move beyond the burden shifting, the summary judgment issue is squarely before us and that's kind of where it seems like the harder your case is

. There's an issue of fact here at the police. Fair enough, you like the wind here of course, you know. But at the very least, if you point being that there's an issue of fact at the very least. Correct, exactly right. And so let me talk about the facts first and then I would like to get to the Travis because this case is so different from traffic's in a number of ways. Well, to synopsize, you're arguing that functionality is, is it generally, is a question of fact? Correct. And the trade dress registration as you indicated in response to Judge Child's question is strong evidence of non-functionality? It is evidence of it, yes. So just to sort of clarify for a moment, the glueless binding process is patented here but the dot embossed pattern is ornamental, it's aesthetic and incidental and numerous witnesses, including the other side's expert, confirmed that myriad other designs or patterns would work just as well. Diamonds, triangles, puppies, that's J.A. 1559 to 1666. So ultimately the question on appeal as to functionality is does the dot pattern not the glueless binding process but the dot pattern does it give McEarer-Late's pads a performance edge? Is it the reason the pads work? And the answer is no. And the issue before us is does that create a question of fact? Correct. Not us to make that the same. Well, I framed it as a matter of law but you're exactly right. Does it create a question of fact? And it does. Let's look real briefly at just a sampling of the evidence because there is a lot of it. First of all, the designer of the pattern, Andreas Schmidt, said he picked the pattern quote because it looked nice. That's a J.A. 319 to 20. The inventor of the patented bonding process, Alexander Maximov, testified that what comes out of the machine can be modified

. This is a quote, so we can adjust the design. It is not dependent on the process. J.A. 417, as we already alluded to, our expert and their expert confirmed that myriad other patterns could work just as well, interchangeably, triangles, diamonds, cartoon characters, squares, ovals. But help us understand at what point the existence of available alternatives matters. Okay. Because there's some question the district court did not find it to be a part of a primary phase of case if I remember in the correct way. Correct. Well, what you have in this case, and I apologize, I'll get right to, I just want to give a brief setup for it, what you have is a number of people testifying that the dot design is not functional and that all these prototypes, everything Mr. Goli said, at J.A. 252, 53, our expert said all the prototypes that are in Appendix 6, they would work just as well as what you have. Basically, the other side agree too. You know, what we're asking for is not that difficult. If you have dots and you want to put cartoon characters on them, if you want to put puppy dogs, if you want to put ovals, the key is, and again, you know, this is a not common area of the law. So I'll mention there's three. So what you put in response to my question, what I'm getting at is the fact that the spring court seemed to suggest that the availability of alternative design only comes up after the functionality of the product has been established? Well, it doesn't, it isn't really that way. It is only precluded if functionality is established. I'm sorry, I'm going to spoke to you right. Right, it's precluded. After the functionality of the element has been established, the court need not speculate about that

. Correct. So if it's irrefutable, if you have something like you had in traffic, which was these people had already gotten a patent for it, they then said, in patent cases, this is an improvement. This thing is in fact functional. And then they decide to come in and say, oh, it's really a trade dress. They're out of luck. Then you don't look at other other alternative designs, but otherwise you do. And again, here, we said all the prototypes in in Appendix VI. Mr. Galley said that. Now Mr. Galley has 30 years experience in the field. And he's the president of the company. And what Kimberly Clark succeeded in doing was convincing the district court that it's just say so if the corporate executives of a company say something. And that's what the judge said. I'm dismissing the say so. Well, there are some cases where there's conclusion. But in this case, notably, Kimberly Clark didn't move to strike Mr. Galley's declaration. They didn't challenge his knowledge. And the reason why probably is that their expert Mr. Mango says at J.A

. 1657 and J.A. 1660 through 62 that these people knew more about the process than he did. So they are not just some corporate executive making a conclusion statement. Is there ever going to be in or how likely is it that in your view that summary judgment will be appropriate in the context of a trade dress infringement action which seems to necessitate expert testimony. Can you imagine a situation that you would think would be appropriate for determination on summary judgment in a similar context? And I do want to clarify where I started to go before I just want to clarify. This is functionality which is step one and it was bifurcated at the request of Kimberly Clark. There's also secondary meaning and likelihood of confusion. So those still have to go and those could frequently be the subject of a summary judgment. Functionality, occasionally, I'm not saying it can't happen. There's a case called Bowman where there was yellow cable and for digging underground the court and the experts people agreed. You know what? Yellow cable is a lot better than dark cable. You can't see when you're digging in the ground. It's possible but it's rare. And that's the thing about traffic. Traffic was a rare case because the other side had not gotten hit here. Well, before I do that I just want to run through in case, you know, their argument is don't believe all the say so. And we think you have to believe the say so because their expert admitted are people knew what they were talking about. You also have the USPTO's findings. You have our patent language which says that the advance is the process, not the dots, not not anything else. In fact, it says there are a variety of other designs there could be. Then you have their patent application for good nights

. And that's, you know, J.A. 398 is one of the best pages in here. That's their application for the dots. And they say things like the point bonds can have various sizes in shape. They're generally circular in one suitable embodiment but it's understood that the bond points can have any suitable size or shape. And then they add it's understood that the point bonds can be arranged in any suitable pattern. So there's a ton of evidence right there. Now I would like to briefly explain why this case is different from traffic because in traffic it was foreclosed. Even though this is an expert case and traffic really wasn't because it was foreclosed just because of the circumstance that they already had a patent for the same idea. In traffic the dual lock was the reason that the pad worked better. Here the dot pattern is not the reason. And we cite all kinds of people who say the dot pattern is not the reason it works better. Mr. Gauley said that, our experts said that. More importantly it was not claimed to be the reason the pad worked better. And the traffic's patent they claimed that's why it worked. Here we didn't claim that. We claimed the process. The glue list is what makes it work better. You could have puppy dogs or hearts or sham rocks or whatever you want on the pads. It would be the same

. There's nothing special about a dot. You have in traffic there wasn't a US PTO registration. We have one going to the burden shifting. And in traffic there was no rebuttal evidence. So they were foreclosed because they had argued it was an improvement. We have tons of evidence to suggest rebuttal even if they were to prevail which they can't. But most perhaps importantly, here there's no evidence that the pattern works better. And they tried. I would be remiss if I didn't bring up the fact that and it's at the back of our opening brief. At pages 63 and 763 of the appendix, they argued at the beginning of the case that the dots were stronger. And they did that based on a one day testing by a 19-year-old intern who was left unsupervised. And then they actually tried to run with that. So as far as credibility goes for purposes of some rejudgment on testing, that's another fact that is devastating for them, I think. So we think that the district court just failed to consider the evidence in best light to us. We think there's abundant evidence and we should have at least gotten to a jury on functionality. We still have to go on the remaining two issues of secondary meaning and likelihood of confusion. Thank you very much. Thank you. Mr. Clevver. Good morning, Your Honours. My name is Andrew Clevver and I appear on behalf of Kimberly Clark Corporation

. May it please the court. The sole issue in this appeal is whether the row of dots that McGarrelade's uses on its absorbent pads is functional and therefore undeserving of trademark protection. The district court below found that it was. That's correct, Dr. Anna. That's a more precise way of stating the issue. We got to look at it. That's right. We got to keep focused that we're not here to decide whether this thing is functional or not. We're just deciding whether not there's enough evidence on both sides. The other side is pointed to quite a bit of what appears to be evidence in the case otherwise on it that would create an issue of fact. Let me address that other evidence including the fact that trial judge seemed to have taken on the portions of one expert testimony. I looked at the rest of it and why should we get in the middle of this is what we're basically questioning. Why don't we just just matter be decided outside of summer adjustment? Let me address that, Your Honour, because there is evidence that you've just heard rehearsed to you and what it primarily consists of is the argument, the assertion, that because some McAerlade's executive and McAerlade's expert testified that the row of dots is not functional, that therefore, summary judgment should not have been granted. That's evidence. But if you look at the. The first-dress registration, isn't that considered non-functional evidence of non-functional? Under the law what the trade dress registration does is it creates a presumption of validity that then under this circuit's precedent in retail services shifts the burden of production, of evidence to us, Kimberly Clark. And once we present strong evidence of functionality, then the burden of production falls back upon McAerlade's and the ultimate burden of proof remains with McAerlade's. And that's as any presumption of work under federal rule of evidence 301 as this court said in retail services. No, it did not. What it had to do is it did here is to look at the whole record and determine, as Judge Wynn says, that there was not a genuine issue of material fact. But there was not

. And that's where I'm going to address. For example, the assertion that McAerlade's executives and McAerlade's expert testified that the row of dots design was not functional. If you look at the actual testimony itself, there's no there there. They're just conclusory assertions. There's no data. There's no testing. There's no comparative evaluations. It's simply their conclusory assertions. It is not enough to extend summary judgment, to simply create conclusory assertions anymore than a party could simply stand on its denials in an answer. For example, say they knew more about this process than he did? No, they did not. Well, he did say about their process, correct. What I want to correct, though, is the assertion that our expert somehow said that any embossing pattern could be used to the same performance level as the embossing pattern of the row of dots. What he said is that you could use any embossing pattern to actually fuse the binding together. You could use puppy dogs to actually fuse them together. What he didn't say is that any of those particular designs would actually perform as well as the rows of dots. Yeah, I have to be to not violate the registration here. I mean, you've got a particular pattern here and I've been trying to figure this thing out. We don't get these cases very often. Yes, fascinating. But I don't understand this business of the puppy dogs and everything else up there. I mean, basically, you can put these indentations in there. You just got to put in a different pattern

. Can't be in the same dimensions. So, could you make it just a little space on a little further or put them in a different place? Actually, no, Your Honor. That's what the Care Lades expert testified that and a few there's a few areas where he says that. That the problem is that you couldn't because it wouldn't be functional or you couldn't because the registration does not allow you to do that. You couldn't because it would change the performance of the product. If you change the design, if you use something other than the rounded, circular rows of dots, the product would not be as absorbent. It wouldn't be as strong. Or weaker. Correct. That's exactly correct. And that's the testimony of McEar Lades own expert. He testified, in fact, that you needed a rounded shape in order for the product to work well. That if you designed, if you use the design other than something with a rounded shape, something with a sharp corner to it, such as a square or a hexagon or a rectangle, that the sharpness of that shape would cause the pulp fibers that are used to manufacture McEar Lades product to be damaged, thereby causing the product to weaken and lose its integrity. And in fact, here's a direct quote from their expert. He said, you quote, pretty much need to round the corners. It's kind of circular to me. You pretty much need to round the corners on whatever shape bond you do to keep from damaging the fibers. That's a joint appendix, 1452. And I want to go back to a very critical point that I think Ure's judge child's about what's really the purpose of the functionality doctrine. And it goes to the issue of patent law. It's patents that are supposed to provide limited protection for a limited period of time. If one can use a trademark to protect a functional device, which is supposed to be protected by patent law, one could obtain a perpetual monopoly over what is a functional device. When the patent laws say you're only supposed to get a limited protection, that's what the Supreme Court said in Qualitex when it said if a product's functional features could be used as trademarks. A monopoly over such features could be obtained without regard to whether they qualify as patents and could be extended forever. That's exactly the problem we face here. We have a functional trademark that one is trying to use the trademarks to extend and obtain a perpetual monopoly over. And though McEarlade's contends today that its row of dots design was purely decorative or ornamental, the record evidence overwhelmingly demonstrates that it was a functional device. For example, when McEarlade's promoted its device, its row of dots design, it touted it as being the product of German engineering, that who's, by the way, unique bonding pattern, that's a quote, unique bonding pattern provides increased surface area for excellent acquisition. And those can be found at Joint Appendix 208 and Joint Appendix 184. What they're saying there is that the rows of dots design make their product more absorbent. A rather critical feature for a product absorbent pads that is used to soak up liquids. And when McEarlade's sought its patents, in particular the 612 patent for an absorbent fiber web, one of its claims, the patent which sets forth in each of its claims, what it believes to be the utilitarian functional features of the device. One of its claims specifically for a dot shaped embossment area. And that can be found at Joint Appendix 499. And McEarlade's actually tested its row of dots design too. And when it tested it, it found that the row of dots design actually provided what's called greater elongation. It stretches more essentially. And what McEarlade's admitted in an interrogatory response, which can be found at Joint Appendix 360, is that a product with greater elongation is important. Because one with less stretch has a greater tendency to rip, which requires more care, more time, more cost when loading it onto a converting machine. What one has to then go back to is the very test of traffic. Which says that a trade dress or a trademark is functional. If it is either essential to the use or purpose of the article, or if it affects the cost or quality of that article. I heard my colleagues say that the test is whether the device works. That's not what the Supreme Court said in traffic

. When the patent laws say you're only supposed to get a limited protection, that's what the Supreme Court said in Qualitex when it said if a product's functional features could be used as trademarks. A monopoly over such features could be obtained without regard to whether they qualify as patents and could be extended forever. That's exactly the problem we face here. We have a functional trademark that one is trying to use the trademarks to extend and obtain a perpetual monopoly over. And though McEarlade's contends today that its row of dots design was purely decorative or ornamental, the record evidence overwhelmingly demonstrates that it was a functional device. For example, when McEarlade's promoted its device, its row of dots design, it touted it as being the product of German engineering, that who's, by the way, unique bonding pattern, that's a quote, unique bonding pattern provides increased surface area for excellent acquisition. And those can be found at Joint Appendix 208 and Joint Appendix 184. What they're saying there is that the rows of dots design make their product more absorbent. A rather critical feature for a product absorbent pads that is used to soak up liquids. And when McEarlade's sought its patents, in particular the 612 patent for an absorbent fiber web, one of its claims, the patent which sets forth in each of its claims, what it believes to be the utilitarian functional features of the device. One of its claims specifically for a dot shaped embossment area. And that can be found at Joint Appendix 499. And McEarlade's actually tested its row of dots design too. And when it tested it, it found that the row of dots design actually provided what's called greater elongation. It stretches more essentially. And what McEarlade's admitted in an interrogatory response, which can be found at Joint Appendix 360, is that a product with greater elongation is important. Because one with less stretch has a greater tendency to rip, which requires more care, more time, more cost when loading it onto a converting machine. What one has to then go back to is the very test of traffic. Which says that a trade dress or a trademark is functional. If it is either essential to the use or purpose of the article, or if it affects the cost or quality of that article. I heard my colleagues say that the test is whether the device works. That's not what the Supreme Court said in traffic. It said it's whether it's essential to the use or purpose, or if it affects the cost or quality. And in fact, in traffic, the Supreme Court was clear that the sixth circuit, when it had denied summary judgment there, it had reversed the grant of summary judgment. That such a standard of competitive necessity or essentiality was not necessary to show functionality. Because the point is that anything that affects cost or quality makes it functional. And therefore, it falls within the scope of patent law, not trademark law. That's what makes the test, whether it affects cost or quality. And let me talk, if I may, a little bit about McEarly's expert. It was asserted, I believe, that McEarly's experts said that any design could work. I'm McEarly's product. Dr. Murray, that's exactly right. That any design could work. That all these shapes are essentially fungible. But I think that needs to be tested against something that McEarly said in its reply brief, which is it, and if you look at page five of the reply brief, if you will see that McEarly said set forth in a black quote, an excerpt from Dr. Murray's testimony is edited. And the sentence is, pad performance and pad performance has been bracketed, indicating that it is substitute edited language. Pad performance is not dependent on the bonding pattern being a round circular point. But if you go back and look at the testimony of what Dr. Murray said and examine what that bracketed language replaced, here's what he really said. I want to be clear, and I'm quoting, I want to be clear. Subject to those conditions of fiber length matching the spacing of the elements and sufficient area to capture some of the fibers and sufficient pressure to form the fusion bonds, it's not dependent on it being a round circular point. What McEarly's excerpt leaves out, what it replaced with its own bracketed language, is precisely the condition that makes the row of dots design functional

. It said it's whether it's essential to the use or purpose, or if it affects the cost or quality. And in fact, in traffic, the Supreme Court was clear that the sixth circuit, when it had denied summary judgment there, it had reversed the grant of summary judgment. That such a standard of competitive necessity or essentiality was not necessary to show functionality. Because the point is that anything that affects cost or quality makes it functional. And therefore, it falls within the scope of patent law, not trademark law. That's what makes the test, whether it affects cost or quality. And let me talk, if I may, a little bit about McEarly's expert. It was asserted, I believe, that McEarly's experts said that any design could work. I'm McEarly's product. Dr. Murray, that's exactly right. That any design could work. That all these shapes are essentially fungible. But I think that needs to be tested against something that McEarly said in its reply brief, which is it, and if you look at page five of the reply brief, if you will see that McEarly said set forth in a black quote, an excerpt from Dr. Murray's testimony is edited. And the sentence is, pad performance and pad performance has been bracketed, indicating that it is substitute edited language. Pad performance is not dependent on the bonding pattern being a round circular point. But if you go back and look at the testimony of what Dr. Murray said and examine what that bracketed language replaced, here's what he really said. I want to be clear, and I'm quoting, I want to be clear. Subject to those conditions of fiber length matching the spacing of the elements and sufficient area to capture some of the fibers and sufficient pressure to form the fusion bonds, it's not dependent on it being a round circular point. What McEarly's excerpt leaves out, what it replaced with its own bracketed language, is precisely the condition that makes the row of dots design functional. What Dr. Murray is saying here is that the shape used on McEarly's product is dictated by certain engineering considerations, including spacing, shaping, and size. It's those considerations, everything is subject to those considerations and those conditions. It's what makes McEarly's row of dots design functional. And if I may, turn to the alternative designs issues, in this case. Essentially, what McEarly's is saying is that because they're conceivably could be other designs that could conceivably work as well as McEarly's row of dots design, that that must mean McEarly's design is not functional. But other than that conclusory assertion, McEarly's provides no data to show that those other alternative designs would in fact work as well. One cannot create a genuine issue of material fact. One cannot survive summary judgment by merely putting forth supposition. Speculation, and that's what this is, speculation does not create a genuine issue of material fact. But even more fundamentally than that. Regardless of whether there may be, and I emphasize maybe, because there's no other evidence in this record that other designs would actually perform as well, just because there may be. The patent says that the patent itself says that other patterns rounded patterns could be used elliptical. What the patent says is that other design shapes could be used to fuse the fibers together. What it doesn't say is that other designs would work equally as well in terms of absorbency, strength, and manufacturing capability. You could use those to fuse it together. But that doesn't mean that everything is going to work as well. It's going to be as absorbent or strong or anything else. It doesn't say that. And even if it did, the point is is that even if there were, maybe more than one solution to an engineering problem, that does not take away from the fact that the row of dots design here is also an engineering functional solution to that same problem. What this means is that all of the designs are functional, not that none of them is. And that's why the Supreme Court in the traffic's decision

. What Dr. Murray is saying here is that the shape used on McEarly's product is dictated by certain engineering considerations, including spacing, shaping, and size. It's those considerations, everything is subject to those considerations and those conditions. It's what makes McEarly's row of dots design functional. And if I may, turn to the alternative designs issues, in this case. Essentially, what McEarly's is saying is that because they're conceivably could be other designs that could conceivably work as well as McEarly's row of dots design, that that must mean McEarly's design is not functional. But other than that conclusory assertion, McEarly's provides no data to show that those other alternative designs would in fact work as well. One cannot create a genuine issue of material fact. One cannot survive summary judgment by merely putting forth supposition. Speculation, and that's what this is, speculation does not create a genuine issue of material fact. But even more fundamentally than that. Regardless of whether there may be, and I emphasize maybe, because there's no other evidence in this record that other designs would actually perform as well, just because there may be. The patent says that the patent itself says that other patterns rounded patterns could be used elliptical. What the patent says is that other design shapes could be used to fuse the fibers together. What it doesn't say is that other designs would work equally as well in terms of absorbency, strength, and manufacturing capability. You could use those to fuse it together. But that doesn't mean that everything is going to work as well. It's going to be as absorbent or strong or anything else. It doesn't say that. And even if it did, the point is is that even if there were, maybe more than one solution to an engineering problem, that does not take away from the fact that the row of dots design here is also an engineering functional solution to that same problem. What this means is that all of the designs are functional, not that none of them is. And that's why the Supreme Court in the traffic's decision. Once it determined that the design issue there was functional, determined that there was no need to engage in any further assessment of alternative designs. Because the fact is that once one finds something is functional, it's no excuse to say that there are other alternative designs out there. And here, the evidence is overwhelming that the row of dots design that McCarly's uses is in fact functional. We have the testimony of their own expert that all of this is functional. What this case comes down to, and what it really means is this. And as the district court, I think, properly recognized. McCarly's product looks the way it does because it makes it a better absorbent path, not in order to identify who made it. That's what trademark is supposed to do. It's supposed to tell you who made it. But this pad... I want to make sure we're dealing with summer judgment. So we're going to look at this evidence in the light most favorable to the other party. And here, you dismissed maybe the testimony statements of the employees, including the president, who's being inclusive. And yet, these are people who have been substantially into business. And it's testimony. I mean, it's an oath. So it's evidence. And we've got to look at that evidence in a light most favorable to the other side. And ultimately, what happens even if we decide, okay, well, there's some evidence there. It's not the end of the day for you

. Once it determined that the design issue there was functional, determined that there was no need to engage in any further assessment of alternative designs. Because the fact is that once one finds something is functional, it's no excuse to say that there are other alternative designs out there. And here, the evidence is overwhelming that the row of dots design that McCarly's uses is in fact functional. We have the testimony of their own expert that all of this is functional. What this case comes down to, and what it really means is this. And as the district court, I think, properly recognized. McCarly's product looks the way it does because it makes it a better absorbent path, not in order to identify who made it. That's what trademark is supposed to do. It's supposed to tell you who made it. But this pad... I want to make sure we're dealing with summer judgment. So we're going to look at this evidence in the light most favorable to the other party. And here, you dismissed maybe the testimony statements of the employees, including the president, who's being inclusive. And yet, these are people who have been substantially into business. And it's testimony. I mean, it's an oath. So it's evidence. And we've got to look at that evidence in a light most favorable to the other side. And ultimately, what happens even if we decide, okay, well, there's some evidence there. It's not the end of the day for you. I mean, it means you now just got to go and convince at the next level that this has this functionality. It means the functionality test. Yes, Your Honor. Their testimony is evidence. The question is, does that testimony create a genuine issue of material fact? When viewed in a light most favorable to them, does it create an issue? That's correct. And I turn to the celatex and the Liberty Lobby Decisions, which says that a party opposing a motion for summer judgment must come forth with specific facts to demonstrate that there's a genuine issue of material fact. A conclusory assertion is no different than standing on your denials in a complaint saying, I didn't do it to try to create... They could have done many other things to try to show that it was functional. Are alternative designs not that we're aware of, Your Honor, because there's been no data to show that alternative designs actually work? The only evidence they essentially have is the assertions of their executives and their expert. And I turn to the six circuits recently, recent decision in Grownville, where they say, on this precise issue about whether putting a witness on the stand saying it's not functional sufficient to survive summer judgment. That wasn't a summer judgment case, but it was a case in which the Court of Appeals reversed a trial court allowing it to go to a trial saying it should have never gotten that far. Do you know experts say there are a lot of possibilities? As I said, what our expert said was there are a lot of possibilities that could be used to actually cause the fusion of the fibers to go together. He did not say, and he was stout in refusing to say that each of those designs would work equally as well in terms of absorbency, strength, and manufacturing capabilities. It's limitless what number of shapes you could use actually cause something to be fused. It's not limitless, and that's why the engineering considerations come into play here as to which shape actually causes the absorbency, the strength, and the manufacturing capabilities of the product to work. And to get back to the point about the assertions of executives constituting or potentially creating a genuine issue of material. How do we to make of the fact that there seems to be relatively little testing either way? There's really very little testing as to whether or not the dots could be replaced with a puppy dog or whatever without affecting the absorbency and strength. The only thing that was discussed is that changing the arrangements of the dots affected, either affected absorbency or strength, but no other design element or no other feature. I see, I have five seconds, I'd like to take the time over that to answer your question if I may. And then perhaps turn back to Judge Wynn for one final comment, which is there was a lack of testing in this case

. I mean, it means you now just got to go and convince at the next level that this has this functionality. It means the functionality test. Yes, Your Honor. Their testimony is evidence. The question is, does that testimony create a genuine issue of material fact? When viewed in a light most favorable to them, does it create an issue? That's correct. And I turn to the celatex and the Liberty Lobby Decisions, which says that a party opposing a motion for summer judgment must come forth with specific facts to demonstrate that there's a genuine issue of material fact. A conclusory assertion is no different than standing on your denials in a complaint saying, I didn't do it to try to create... They could have done many other things to try to show that it was functional. Are alternative designs not that we're aware of, Your Honor, because there's been no data to show that alternative designs actually work? The only evidence they essentially have is the assertions of their executives and their expert. And I turn to the six circuits recently, recent decision in Grownville, where they say, on this precise issue about whether putting a witness on the stand saying it's not functional sufficient to survive summer judgment. That wasn't a summer judgment case, but it was a case in which the Court of Appeals reversed a trial court allowing it to go to a trial saying it should have never gotten that far. Do you know experts say there are a lot of possibilities? As I said, what our expert said was there are a lot of possibilities that could be used to actually cause the fusion of the fibers to go together. He did not say, and he was stout in refusing to say that each of those designs would work equally as well in terms of absorbency, strength, and manufacturing capabilities. It's limitless what number of shapes you could use actually cause something to be fused. It's not limitless, and that's why the engineering considerations come into play here as to which shape actually causes the absorbency, the strength, and the manufacturing capabilities of the product to work. And to get back to the point about the assertions of executives constituting or potentially creating a genuine issue of material. How do we to make of the fact that there seems to be relatively little testing either way? There's really very little testing as to whether or not the dots could be replaced with a puppy dog or whatever without affecting the absorbency and strength. The only thing that was discussed is that changing the arrangements of the dots affected, either affected absorbency or strength, but no other design element or no other feature. I see, I have five seconds, I'd like to take the time over that to answer your question if I may. And then perhaps turn back to Judge Wynn for one final comment, which is there was a lack of testing in this case. However, there is an abundance of evidence that the row of dots design did provide functional characteristics to make air-laid stray dress design. The promotional activities, the patents themselves, there was testing data for the row of dots design showing that it provided greater elongation and stretchability. And their own expert testified that if you change the shape, if you made it less than rounded, that that would make it damage the fibers of the product and cause the product not to perform. What there wasn't testing data on this and what the care-laid's refused to provide was that somehow or another, the other designs that they hypothesized, like diamonds or puppy dogs or whatever else you might hypothesize, that those would actually work. They've never provided that data. They simply say it. They'd work just as well. It's speculation. And that's why the speculation doesn't create a genuine issue of material fact. And if I may just one minute, I do want to talk to Judge Wynn about that point of putting witnesses, because I do think the Sixth Circuit had it right. When they said in the Grownville case, and that's at 730F3 at 507, the bear act of putting a manager on the stand to claim that non-functionality, to claim that an article is non-functional, is not sufficient to create a triable issue of fact. If that were the law, any plaintiff could get to a jury trial by simply mulling a legal conclusion that its product design is non-functional. And that's the issue that was faced here by the District Court. That's what he got right, and that judgment should be affirmed. Thank you. Mr. Cleveland. Mr. Friedman, you have a few minutes for a bottle. What Kimberly Clark just delivered in essence was a closing jury argument. I mean, they argued some facts, some disputed facts. I wish it were as clear to me as it seems to be to you

. However, there is an abundance of evidence that the row of dots design did provide functional characteristics to make air-laid stray dress design. The promotional activities, the patents themselves, there was testing data for the row of dots design showing that it provided greater elongation and stretchability. And their own expert testified that if you change the shape, if you made it less than rounded, that that would make it damage the fibers of the product and cause the product not to perform. What there wasn't testing data on this and what the care-laid's refused to provide was that somehow or another, the other designs that they hypothesized, like diamonds or puppy dogs or whatever else you might hypothesize, that those would actually work. They've never provided that data. They simply say it. They'd work just as well. It's speculation. And that's why the speculation doesn't create a genuine issue of material fact. And if I may just one minute, I do want to talk to Judge Wynn about that point of putting witnesses, because I do think the Sixth Circuit had it right. When they said in the Grownville case, and that's at 730F3 at 507, the bear act of putting a manager on the stand to claim that non-functionality, to claim that an article is non-functional, is not sufficient to create a triable issue of fact. If that were the law, any plaintiff could get to a jury trial by simply mulling a legal conclusion that its product design is non-functional. And that's the issue that was faced here by the District Court. That's what he got right, and that judgment should be affirmed. Thank you. Mr. Cleveland. Mr. Friedman, you have a few minutes for a bottle. What Kimberly Clark just delivered in essence was a closing jury argument. I mean, they argued some facts, some disputed facts. I wish it were as clear to me as it seems to be to you. Kimberly Clark has come back with testimony that talks about the role that the pattern plays, the spacing of the dots. Correct. And what they say is, having responded, you then had to meet that with something other than assertion. So what specifically are you saying you have done to meet that other than supposition? First of all, what they're saying is wrong, and a lot of the facts that they're citing are skewed in best light to them. Having said that, they say there doesn't have to be testing from us. There was no testing from them except for incredibly botched non-credible testing from a 19-year-old. So that cuts against them. We did have testing with another to harsher the lines. And our experts said that that was, you know, it was within the margin of error. It was no different. We have- I know what you said. That wasn't clear. There is a big discussion. What I guess I would tell the court is at pages 8 to 12, we were not trying to hide the ball. If you don't have any bonding, if you don't have any bonding at all. Let's go to the questions of absorption in strength for borrowers. In the harsher case, which was the T126, I think it's- Let's not do that. Let's stay with the facts of this case. It is the case. It is the other. We had two different prototypes at first, and then we got rid of one because people liked the other. That one, there was testing, and it was within

. Kimberly Clark has come back with testimony that talks about the role that the pattern plays, the spacing of the dots. Correct. And what they say is, having responded, you then had to meet that with something other than assertion. So what specifically are you saying you have done to meet that other than supposition? First of all, what they're saying is wrong, and a lot of the facts that they're citing are skewed in best light to them. Having said that, they say there doesn't have to be testing from us. There was no testing from them except for incredibly botched non-credible testing from a 19-year-old. So that cuts against them. We did have testing with another to harsher the lines. And our experts said that that was, you know, it was within the margin of error. It was no different. We have- I know what you said. That wasn't clear. There is a big discussion. What I guess I would tell the court is at pages 8 to 12, we were not trying to hide the ball. If you don't have any bonding, if you don't have any bonding at all. Let's go to the questions of absorption in strength for borrowers. In the harsher case, which was the T126, I think it's- Let's not do that. Let's stay with the facts of this case. It is the case. It is the other. We had two different prototypes at first, and then we got rid of one because people liked the other. That one, there was testing, and it was within. They were you know, it was within one percent. As to what? As to a tensile strength absorption. Elongation was different, but the point is it's not our burden. We had the prototypes. It's their burden on some re-judgment to prove that there's no question of fact. But- There's not going to be an issue as to what? You said as to tensile strength absorption. That was kind of quick. Was it as to tensile strength? It was. The testing dealt with both, and our experts said it was within. And Gali says in his declaration, they're within the same- they're close. And they also say that all the prototypes, and there's a case called Thomas and Betz that says you can have hypothetical prototypes. We don't have to come forward with all kinds of prototypes. What I want to make clear is that at pages 8 to 12 of our briefs and reply, we weren't trying to hide the ball. It's obvious that if you don't have any bonding, it's not going to work. And if you do have bonding- I'm not- what I'm trying to get to is assuming for purposes of my question that evidence has been put forward to show that the row of dots affects how the product- how well the product functions. What do you point to as meeting what becomes your responsibility at that point to come up with something that meets or contradicts that? There are a lot of them. Does it need to be round? They're saying that the dots do it. It's not the dots. And what I'm asking is not argument, but what facts did you put forward, what testing? There wasn't much testing. There was some. It's in- You need testing. There was testing that showed the harsher pattern and this pattern pretty close

. They were you know, it was within one percent. As to what? As to a tensile strength absorption. Elongation was different, but the point is it's not our burden. We had the prototypes. It's their burden on some re-judgment to prove that there's no question of fact. But- There's not going to be an issue as to what? You said as to tensile strength absorption. That was kind of quick. Was it as to tensile strength? It was. The testing dealt with both, and our experts said it was within. And Gali says in his declaration, they're within the same- they're close. And they also say that all the prototypes, and there's a case called Thomas and Betz that says you can have hypothetical prototypes. We don't have to come forward with all kinds of prototypes. What I want to make clear is that at pages 8 to 12 of our briefs and reply, we weren't trying to hide the ball. It's obvious that if you don't have any bonding, it's not going to work. And if you do have bonding- I'm not- what I'm trying to get to is assuming for purposes of my question that evidence has been put forward to show that the row of dots affects how the product- how well the product functions. What do you point to as meeting what becomes your responsibility at that point to come up with something that meets or contradicts that? There are a lot of them. Does it need to be round? They're saying that the dots do it. It's not the dots. And what I'm asking is not argument, but what facts did you put forward, what testing? There wasn't much testing. There was some. It's in- You need testing. There was testing that showed the harsher pattern and this pattern pretty close. Elongation was different as to tensile strength and absorption. It was different with the elongation, but we have experts. If you read the Goli Declaration and others, the point is they have got us hung up on testing, which isn't even our burden. They're trying to get us to say dots. I'm sorry. For my benefit in understanding- Let me say this. This is in the context of summary judgment. So just for purposes of my question. For purposes of your question, we came forward with evidence from Goli, from our expert, that these dots weren't any different from any other design within the parameters. Of course, it's within the parameters. If you had no dots, it would work- It would be parameters of what? And the parameters are on pages 8 to 12 of our reply. We're spacing, bond shape, bond point size. There are a lot of sites I could give you- You can accomplish what? To accomplish- The pads working. The pads not falling apart. They have to not fall apart and they have to be able to absorb stuff. But that's in general. As far as once you meet those requirements, and those requirements are set out between pages 8 and 12 of our brief, any pattern will work. That's what all of our people said. And that's what the prototype said. And I'd like to point out in our patent, they're not dots. They're hexagonals. I realized- Could I just say one other thing? Their expert, Mango, talked about triangles and squares being perfectly fine at 1668 to 16- It's a matter of chamfering

. It doesn't have to be round. Thank you. Thank you. Thank you very much. We will ask the clerk to adjourn port for the day and come down in Greek Council