To number 14, 1097, Wayne Spencer and Lock 5, leasing incorporated against Taco Bell Corporation and Foundation. Mr. Douglas. Good morning, Your Honours. May I please the Court? The issue presented or one of the three issues presented is whether the lower court applied the proper standard for determining whether section 120 of the bat law controls or was properly applied. In this case, the lower court, this is a case of a parent's utility application followed by a design-pad application. The design application claimed the priority of the utility pad and needs the priority of the utility pad in order to be not barred by the sale, the really sales or one of your sales. The lower court applied the rationale that Daniels, which was a design on the design case, said that if you're looking for 120 requirement fulfillment, you look to the drawings of the parent application. Well, that was a misapplication because there's been a lot of... Mr. Orgument, when the court reviews the prior application that it's limited only to the drawings and the figures in the application. Correct
. Court just looked to the drawings. And My argument was that in cases such as Vazcath, where there was a design application, they looked to not only the drawings and for subtle, reasonable modifications of the drawings, or in other cases cited where there was a utility bat and the court looked to the specification to drawings, including the abstract and the claims to fulfill 120 requirements. Isn't it fair to say that what the District Court judge did here was first look at the drawings of the 4014 application and compare those drawings to the patents drawings. But then in the alternative, also looked at the actual text of the 4014 utility patent application and searched through the text and ultimately found that the text also didn't provide written description support for certain features of the patent to design. Isn't that a fair way to understand the opinion? To fairly understand it would be that the judge for example, at page 16 of the opinion, this is with regard to the six raised triangles on the top of that lid. Even accepting the plaintiffs' approach, the text of the application cannot save the drawings. After searching through the specification and claims, the plaintiffs find no text discussing six raised triangles. That's just one example and then it does a lot of the same things for the other missing features. And then ultimately says, even accepting the plaintiffs' approach on page 19 of the District Court opinion, the written description remains insufficient for each difference. The text of the 4014 application either adds nothing to the drawings or further clarifies that the 4014 application drawings are incompatible with the 474 patent drawings. Well, the judge applied the standard or what he thought was a standard where it has to be a copy of it, a duplicate of it. Whereas this court has said that the priority application or the application priorities claim them must enable a person skilled in the art to reasonably determine that the invention was in the possession of the inventor at the time of the invention. If you look at the drawings of the 4014, which was the parent application, there is a raised area in the center of the lid
. Now, it's not claimed, but it does show up in the 4014 drawings. This is a reinforcement area. The triangles are reinforcement triangles. The question is, and it's a question that the court didn't ask or answer, was if one skilled in the art, if they saw the reinforced area in the center of the lid, and then viewed the other areas, would understand that the inventor really did invent that invention. What reinforced area are you talking about on the lid of the 4014 application? And if you argued this point to the District Court, I'd be interested in seeing that in the brief. I believe it was in the reply brief. You filed an opposition to a summary judgment, right? Correct. So, well, the summary judgment order came out after all that was filed. But in this, in the reply brief to this court, I'm sorry, I'm saying, did you argue this point to the District Court judge below in opposition to your opponent's brief for some judgment? That the lid had some kind of reinforced area. And when you look at the illustration of the lid on the 4014, it would make clear that you would have some appreciation that you need any kind of different shaped reinforcements. For example, six raised triangles. I do not believe that I did. But I raised that in the after the court's decision when it came down that he just looked at the drawings, my point was it's there in the drawings as well
. Now, the question is did the court air not seeing it? The court will see what it sees. Is your argument that the court aired in limiting its review for written description support only in relation to the drawings? Well, not only that, but they also applied the, they also applied the standard, if you will, that there had to be an exactness between the drawings of one and the drawings of the other. One of the points is the court said, well, the drawings of the earlier application shows an angle and the drawings in the later application show that it's rounded. The standard would be that a reasonable person skilled in the art would look at one and understand that you have done to the other. And her position was that the court aired and doing this. And all the analysis, the court also looked at the rubber vibrational pads at the bottom and said, well, you didn't show that they're exactly round or you didn't describe that they're around. Or some issues as a description, but I think one skilled in the art would look at a vibrational pad, realize what it was for and look at the pad and the later on design application and say, well, yeah, I was, I understand that you invented this, this aspect of it. And so that's really what it comes down to. Then there are other issues as far as the day apply the proper infringement standard, which was that the court didn't do a claims construction and I didn't realize that claims construction and design pads is very limited and usually you can't reduce a picture of words. However, this court has said that when you have something that's functional and ornamental mixed, you must in order to find infringement, separate out all those items that are considered functional. That is their term, their, their configuration is determined by either price or cost or actually utility, which they carry out. But in this case, the court didn't look at any of the functionality or the things that were functionality wanted and by the way, it would have been infringed anyway because it considered several things that were considered functional and not to be considered part of the claim. We're talking about infringement now, not in the way
. Yeah, when the court went on to say, well, you know, I'm going to say 120 is not applicable here and also it doesn't infer in any way. But I think it also here to the outside. But again, going to your infringement question, I didn't see you argue in opposition below that the court needed to differentiate the functional features from the overall design features. And as you, the bat knower, were in the best position to identify which was the feature that were functional and therefore shouldn't be considered in the infringement or non-fringement analysis. I mean, it's an interesting argument that you raised to us, but I don't know if it's a basis that we can use to overturn a decision by a district court if the district court never had the argument in front of them in the first place. I am not. You might answer that question during rebuttal times. Yes, yes. Tell us what else you need to tell us. Those are really the two, the third issue was the Seattle. There are issues are intermingled. Oh, and the other issue raised was whether the court aired its analysis of the design by looking at an element by element basis rather than looking at substantially the entire device. What it is, they looked at the corners and said, well, the corners are sharp, rounded, the pads are not in the proper place where we can't tell
. It didn't look at the whole device and the whole picture that it gave in determining whether there was infringement or not. But I mean, also separating out the functional aspect was also a major part of it. Okay. Any more questions at the moment? All right. We will say the rebuttal time is to tell us. Here from the series. Mr. Joder. Yes. Good morning, your Honours. If any, please report the previous story of detail, the judges order was for you to tell us from how it focused on what these economic plot up and answer in the first questions. It will help a greater understanding of the issues here. Going to the first issue of the identity of the court, many of these are all in the agenda on the basis of the first order
. The court did say that you look to be illustration. You also say you went to the tax, but there was nothing there. To quote some further findings from the court in addition to the one that you're on, the court found, quote, on page 16 of this order, which is at 10-8-16. Even accepting expenses approached the text of the 414 application cannot save the drawings. The bottom line is the court did take a look at the tax ending. Did the court limit its review of the text only with respect to the drawings? What do you want to put respect to in the time that the case of the court does look to the specification for any explanation of the illustration? Did it consider the entire specification or look for written support in the entire specification or did it only look for written support with respect to drawings? Whether there's sufficient description that meets or addresses the drawings? You and I think the court did look at the entire specification, but all we found were descriptions of features that have functions, not ornamental design. That's why the court did not find anything in the specification of the document in determining whether or not the later file of the financial issue to claim priorities and utility application. The court opinion in raising scrolls, please don't say rules, raising scrolls is an instruction. The court did, if you do look at the illustration, but the specification may have some description that might be helpful in explaining the illustration. The court did follow this course holding in raising scrolls, which was in here. You're understanding of the law is not just drawings, drawings if the parent or the purported parent, if the utility patent, that you look at both the drawings and the text of the utility parent patent. Yes, Your Honor, that is my reading of the case of the court. It takes a Tuesday to focus on the illustration, but if there's something in the specification, if there's just
... This is the case of the already, this is whether the ordinary observer looking at one is likely to think that it's the other. If there is description in the text that would be relevant to that, this isn't that something that might cause an observer to think one is the other because these extra embellishments are trivial or not consricutes. Yes, Your Honor, as long as it doesn't involve any teaching or it's not something that would be planned to be an obvious issue, there are some arguments, both in the law court and the talk court that censored the appellant may, with respect to the specification teaching, and that it would have been obvious to an ordinary to a student who is still in the art that... One of these one of the findings is that in the mention that the fund, if you're going to be able to see that, you'll see the fund. However, the novel law, in terms of the court's opinion, the court did find that obvious message is not sufficient. Also, in the court's opinion, it's highly racist, and same goal, you can have obvious message on not the text. And Daniels, which Spencer's counsel mentioned earlier, have found that it must necessarily describe the illustration. So there's plenty of authority out there that gave the court enough to remind on and apply the standards and the white test. And we believe that also the Spencer's argument with respect to the genus species analysis does not help in the situation
. In cases that they cite are utility packages. There are some cases also that they cite with respect to measurements and ranges of measurements that still apply to this case. In the genus species analysis, even if it works to apply, the court has made it clear that the specification, you can't just draw a box around the genus. And there are cases where perhaps the genus species analysis will apply, but in this case, the right package is the right answer. That also doesn't apply. Do you think that's true for design patents in general? You said in this particular design case, it doesn't work, but do you think that's true for design patents in general? You know, if you're on a bad, I would really have to think through all the different possibilities for design to understand whether or not that's true or not. I don't think the court has to reach that issue here, but with respect to this game canister, there is not a genus species issue. And the palate Spencer has not been able to describe in a manner how that would apply here. The court has found that the different factual scenarios will expect to be claimed invention, made it to how it would be now the district court conducted an analysis. So, just one last thing on the inquiry, earlier Spencer's counsel was talking about whether or not to be here. Before you remove one, I'm concerned that the district court may have aired in its application of the law and looking at J-15 in the second complete paragraph about third line, it says, it's referring to the plaintiff's argument. It's arguing to the court that you have to look for description of the features also in the text in addition to the drawings. It says, the plaintiff's argument is beschotted
. The written description requirement looks to the drawings and consults a specification only to describe the drawings. And do you think that's a correct articulation of our precedent? I believe that Spencer takes this part of the court's argument out of context. And also this is where Spencer's intelligence is arguing about the specification teaching. And then there's something as obvious to one's still in the art that that would be acceptable. I think what the court is saying here is that you don't look at the specification as well as the teachers. The one's still in the art. Or not. I mean, if the drawing has six pads, but the description says that the item may have pads. Does it say six pads? Shouldn't that be considered as well? Because I think the district court here was making a reference. You got six pads in the accused advice and the events. It's only got four for the designs only got four pads. Only by looking at the drawings. You honor with respect to the pads
. That's one of the, I think it's six features that the court looked at. I don't think that the specification saves the issue there, but I do understand. No, that's a hypothetical. I was assuming it did. Yes. If I can understand your honors question, if the specification mentioned that it could have. Any number of pads, would that assist the district court in determining that. It would be okay if the later claim invention had more than two pads. That's your honors question. Yes, short the long one. You honor, I did think through that. And whether or not that type of explanation might be helpful. And I'm not so sure that that explanation is detailed enough. But I think there are explanations that could have been in the specification. That could have been helpful to the district court. I agree with your honor. But here we didn't have those explanations. Which is actually the point I was getting ready to move to. You hit right on where I was going, which is if the court was to apply the logic that the appellant tries to apply here. The court would be rewarding vagueness in applications. That was one of the district court's holdings. So what the district court is saying here, if you agree with Spencer's argument that the description can teach one's guild in the arth. And that one's guild in the arth could find that these ornamental features were obvious. Then you're rewarding vagueness in the patent applications. And that's not what the case law says. As I mentioned in Toronto and Paraguay, this court has found that obviousness is not the test
. But I think there are explanations that could have been in the specification. That could have been helpful to the district court. I agree with your honor. But here we didn't have those explanations. Which is actually the point I was getting ready to move to. You hit right on where I was going, which is if the court was to apply the logic that the appellant tries to apply here. The court would be rewarding vagueness in applications. That was one of the district court's holdings. So what the district court is saying here, if you agree with Spencer's argument that the description can teach one's guild in the arth. And that one's guild in the arth could find that these ornamental features were obvious. Then you're rewarding vagueness in the patent applications. And that's not what the case law says. As I mentioned in Toronto and Paraguay, this court has found that obviousness is not the test. So I think that's where the court was going when it said that the specification fails. You look to the specification for explanation of the illustrations. Because Spencer the appellant was going a far, far, far, far, far, far, far, far. What if all the illustrations are cylinder is oval and it says in the specification that the cylinder can also have a hexagonal shape to it. But yet every illustration you have an oval shape. Well, again, I did think through this because I was trying to think intellectually as to what might have been if things had been different. And I'm still not certain that one comment that it could be hexagonal, it depends on the detail, would say the illustrations. And you would have to also look at the later claimed invention and determine whether or not well, is it hexagonal. Is there an example of a description through text that would make you comfortable? Is that the text sufficiently described ornamental features? Well, I think we'd have to go through the ornamental features that the court pointed out. I mean, there are cases out there where, and this is where we get into the dimension cases, where you have dimensions, where the court has found that the dimension of the, and there were no dimensions in the 414, but in the illustrations. But if this were a case that involved ranges or dimensions, if the, if the earlier specification gave some indication as to dimensions, but maybe didn't give the exact dimension. And then the later claimed invention gives a detailed description of the measurement. Then that is something that, that might help the court in determining that the later claim invention could claim priority
. So I think that's where the court was going when it said that the specification fails. You look to the specification for explanation of the illustrations. Because Spencer the appellant was going a far, far, far, far, far, far, far, far. What if all the illustrations are cylinder is oval and it says in the specification that the cylinder can also have a hexagonal shape to it. But yet every illustration you have an oval shape. Well, again, I did think through this because I was trying to think intellectually as to what might have been if things had been different. And I'm still not certain that one comment that it could be hexagonal, it depends on the detail, would say the illustrations. And you would have to also look at the later claimed invention and determine whether or not well, is it hexagonal. Is there an example of a description through text that would make you comfortable? Is that the text sufficiently described ornamental features? Well, I think we'd have to go through the ornamental features that the court pointed out. I mean, there are cases out there where, and this is where we get into the dimension cases, where you have dimensions, where the court has found that the dimension of the, and there were no dimensions in the 414, but in the illustrations. But if this were a case that involved ranges or dimensions, if the, if the earlier specification gave some indication as to dimensions, but maybe didn't give the exact dimension. And then the later claimed invention gives a detailed description of the measurement. Then that is something that, that might help the court in determining that the later claim invention could claim priority. But this is not, this is not that type of a case. So that's part of the problem here I think is that, that Spencer's brief below, and the brief before this court, are mixing cases about utility patents, measurements, ranges, pharmaceutical cases, all sorts of different cases that just don't have a point. So I think that the court applied to a game canister, and the earlier application was vague as to the ornamental designs of the illustration. So I would, I would close with respect to the involidity issues that, if the court were to adopt this new standard, which a three panel court cannot adopt a new standard that would go against Toronto and Paralasis, it would reward vagueness in the applications. And then I'd just like to spend a couple of minutes on infringement with respect to infringement. The, the Egyptian goddess case from this court mentioned that there's no need for the district court to provide a detailed verbal description of the claim design as your owner pointed out. Spencer was in the best position to present to the court that that needed to happen, but I would also present to the court that there's no argument that it needed to happen here. When it comes to validity of a design patent, the district court does have to provide some kind of detailed verbal description of the claimed design, right? Yes, sure. So why the law of the way that it is when it comes to a design patent infringement, there is no need to provide some kind of articulation of the claim design for purposes infringement, but it is required for purposes of validity? Well, you know, I think there are certain instances, and that's where the Richardson case comes in, where the court might find it useful to construe the patent design. Here that wasn't the case, and in fact, Spencer had argued below that none of the features were functional. So the court, there's, you assume that it's valid for purposes of infringement, so that the district court does. So you don't have to construe the patent for purposes of validity when you're doing an infringement analysis. And here Spencer said that all of the elements were not functional
. But this is not, this is not that type of a case. So that's part of the problem here I think is that, that Spencer's brief below, and the brief before this court, are mixing cases about utility patents, measurements, ranges, pharmaceutical cases, all sorts of different cases that just don't have a point. So I think that the court applied to a game canister, and the earlier application was vague as to the ornamental designs of the illustration. So I would, I would close with respect to the involidity issues that, if the court were to adopt this new standard, which a three panel court cannot adopt a new standard that would go against Toronto and Paralasis, it would reward vagueness in the applications. And then I'd just like to spend a couple of minutes on infringement with respect to infringement. The, the Egyptian goddess case from this court mentioned that there's no need for the district court to provide a detailed verbal description of the claim design as your owner pointed out. Spencer was in the best position to present to the court that that needed to happen, but I would also present to the court that there's no argument that it needed to happen here. When it comes to validity of a design patent, the district court does have to provide some kind of detailed verbal description of the claimed design, right? Yes, sure. So why the law of the way that it is when it comes to a design patent infringement, there is no need to provide some kind of articulation of the claim design for purposes infringement, but it is required for purposes of validity? Well, you know, I think there are certain instances, and that's where the Richardson case comes in, where the court might find it useful to construe the patent design. Here that wasn't the case, and in fact, Spencer had argued below that none of the features were functional. So the court, there's, you assume that it's valid for purposes of infringement, so that the district court does. So you don't have to construe the patent for purposes of validity when you're doing an infringement analysis. And here Spencer said that all of the elements were not functional. So there was no reason here for the court to construe the patent. Isn't it just simply the ordinary observer test? Absolutely, you're honest. It's that simple. It's the ordinary observer test, and here there were so many similarities between the 4-7-4 patent, the assorted patent, and the prior RDO, the RDO-1 patent that the ordinary observer would have paid much more attention to even the smallest differences. And even if the court would have stripped out the functional features that now, for the first time, Spencer is claiming a functional. Those three of those four, what he claims are the non-functional features, the handle, the rod in the middle, and the, and the paddles. Those, those actually, the court found that those were very similar between the 4-7-4 and the 801, so the ordinary observer would not have even paid attention. The design patent is for a utilitarian object, so all sorts of features have a function. Yes, Your Honor, they can. The appellant Spencer claims that none of those ornamental features were dictated by any of the function below. Well, that helps him, does he? Well, he, he claims that they were, for infringement, he claimed that they were not functional, that those ornamental designs were not, were not dictated by the function. And so the court compared and found as a whole, despite Spencer's argument, found as a whole, that there was no infringement. The example that's always used is a toaster shaped like a locomotive
. So there was no reason here for the court to construe the patent. Isn't it just simply the ordinary observer test? Absolutely, you're honest. It's that simple. It's the ordinary observer test, and here there were so many similarities between the 4-7-4 patent, the assorted patent, and the prior RDO, the RDO-1 patent that the ordinary observer would have paid much more attention to even the smallest differences. And even if the court would have stripped out the functional features that now, for the first time, Spencer is claiming a functional. Those three of those four, what he claims are the non-functional features, the handle, the rod in the middle, and the, and the paddles. Those, those actually, the court found that those were very similar between the 4-7-4 and the 801, so the ordinary observer would not have even paid attention. The design patent is for a utilitarian object, so all sorts of features have a function. Yes, Your Honor, they can. The appellant Spencer claims that none of those ornamental features were dictated by any of the function below. Well, that helps him, does he? Well, he, he claims that they were, for infringement, he claimed that they were not functional, that those ornamental designs were not, were not dictated by the function. And so the court compared and found as a whole, despite Spencer's argument, found as a whole, that there was no infringement. The example that's always used is a toaster shaped like a locomotive. Is that functional? Well, there is a function, there are functional elements to the toaster of your Honor. Now, the locomotive design is an ornamental element. Okay, I think any more questions? Thank you, Mr. Joining. Your Honor, I would like to respond to your question as to whether the issue of functionality and ornamentality was brought up at the lower court, and I would refer you to page 466 of the appendix, wherein the argument to the court was, while there, quote, while there's not been any determination by the court as to what is considered functional or what is to be considered ornamental, one is left without its understanding of what is to be considered Indian infringement analysis in this instance. And then I went on to cite Egyptian goddess case. So the point was that the court was urged to do some type of analysis, what's functional, what's non-functional. Now, as far as Spencer claiming that all things are functional, I don't believe that's the case. I believe the first issue of functionality was brought up by opposing counsel and his, and his brief to the court in this motion for some re-judgment. And what this counsel did was to agree with him on some of the issues. He said everything was functional, and I said, and I didn't agree if I said that, well, yeah, we consider it to be a little bit functional and the base to be functional, and the things that are ornamental are the rounded turn handle, the shaft, and the petals. And so we thought that that should be where the infringement analysis really go, because we were both in agreement as to things that were functional. He said all were, and we said, well, some of them are
. Is that functional? Well, there is a function, there are functional elements to the toaster of your Honor. Now, the locomotive design is an ornamental element. Okay, I think any more questions? Thank you, Mr. Joining. Your Honor, I would like to respond to your question as to whether the issue of functionality and ornamentality was brought up at the lower court, and I would refer you to page 466 of the appendix, wherein the argument to the court was, while there, quote, while there's not been any determination by the court as to what is considered functional or what is to be considered ornamental, one is left without its understanding of what is to be considered Indian infringement analysis in this instance. And then I went on to cite Egyptian goddess case. So the point was that the court was urged to do some type of analysis, what's functional, what's non-functional. Now, as far as Spencer claiming that all things are functional, I don't believe that's the case. I believe the first issue of functionality was brought up by opposing counsel and his, and his brief to the court in this motion for some re-judgment. And what this counsel did was to agree with him on some of the issues. He said everything was functional, and I said, and I didn't agree if I said that, well, yeah, we consider it to be a little bit functional and the base to be functional, and the things that are ornamental are the rounded turn handle, the shaft, and the petals. And so we thought that that should be where the infringement analysis really go, because we were both in agreement as to things that were functional. He said all were, and we said, well, some of them are. So we were agreement with opposing counsel on some of the issues. The clear, sick-sided class or a plasticist is functional. I mean, it had to be. Spencer said that in his deposition. So we found that, or we argued that the court should make some type of determination, and it did not. And those were really the last issue is that I would say in listening to this hearing product procedure, what appears, what it was plain to me, is that the federal circuit has given forth opinions. And those opinions say that there has to be, in order to an analysis of 120, that one skilled in the art, reasonably skilled in the art, would reasonably understand that what was invented was there. Then there is, as far as infringement, you have to look at the item and the accused device in the appant, and you have to see if there's a substantial similarity. These are words that have huge amounts of what's referred to in the vernacular's wiggle room. I don't think that the specificity exactness is required as opposing counsel suggests. As this court had said in the case, and I can't remember the citation, was that if you required such exactness, there'd be no such thing as the design pattern, because it would be very easy to overcome just by changing a line. But when it comes to written description, doesn't the court's case law talk about how obvious variations don't satisfy the written description of court? Well, I'm not sure the issue of obviousness was ever raised in the law court. In fact, if the idea is, maybe there's a difference between the features that correspond between the parent
. So we were agreement with opposing counsel on some of the issues. The clear, sick-sided class or a plasticist is functional. I mean, it had to be. Spencer said that in his deposition. So we found that, or we argued that the court should make some type of determination, and it did not. And those were really the last issue is that I would say in listening to this hearing product procedure, what appears, what it was plain to me, is that the federal circuit has given forth opinions. And those opinions say that there has to be, in order to an analysis of 120, that one skilled in the art, reasonably skilled in the art, would reasonably understand that what was invented was there. Then there is, as far as infringement, you have to look at the item and the accused device in the appant, and you have to see if there's a substantial similarity. These are words that have huge amounts of what's referred to in the vernacular's wiggle room. I don't think that the specificity exactness is required as opposing counsel suggests. As this court had said in the case, and I can't remember the citation, was that if you required such exactness, there'd be no such thing as the design pattern, because it would be very easy to overcome just by changing a line. But when it comes to written description, doesn't the court's case law talk about how obvious variations don't satisfy the written description of court? Well, I'm not sure the issue of obviousness was ever raised in the law court. In fact, if the idea is, maybe there's a difference between the features that correspond between the parent. The parent application and the patented drawings, and maybe one could say, well, they're different, but it'd be obvious to do the tweak to meet the change. But nevertheless, under written description law, the parent application necessarily has to have the disclosure for all the features of the later claimed patent. And it can't just be an obvious variation. Well, you're getting to obviousness, and since, yeah, I am, but it's a notion that's in the written description law. No, I don't understand your point. But the point I was going to make is that when you're dealing with obviousness, you have to look at underpinnings as to why it would be obvious to someone. In other words, if you have in the prior, in the old prior era, there was an hexagonal shaped handle, a turning handle. And now, in the newer piece of the drawings, the handles round. Well, yeah, it might be considered obviousness to change it, but the court has long recognized that just about everything is based on something else. And that you have to, or the person rendering the opinion has to say, well, it's obvious because it's self-disproblem, or this is one of the issues raised with it. You're just changing it, especially in a concept of design path. I mean, how obvious is that the picture name on a football, and yet there's design paths for the name on a football with fins on it? Well, your example about the handle being hexagonal or circular, doesn't that go right into the teeth of Enray Sammon, which was the design patent case about a stool, which had kind of had these funny legs that were shaped in an odd configuration, but the seat had changed from the parent application to the later file application from a square seat to a round seat. And then the CCPA said, no, sorry, you can't go back to the earlier file application and get that earlier priority date because you didn't have written description for the now claims circular seat
. The parent application and the patented drawings, and maybe one could say, well, they're different, but it'd be obvious to do the tweak to meet the change. But nevertheless, under written description law, the parent application necessarily has to have the disclosure for all the features of the later claimed patent. And it can't just be an obvious variation. Well, you're getting to obviousness, and since, yeah, I am, but it's a notion that's in the written description law. No, I don't understand your point. But the point I was going to make is that when you're dealing with obviousness, you have to look at underpinnings as to why it would be obvious to someone. In other words, if you have in the prior, in the old prior era, there was an hexagonal shaped handle, a turning handle. And now, in the newer piece of the drawings, the handles round. Well, yeah, it might be considered obviousness to change it, but the court has long recognized that just about everything is based on something else. And that you have to, or the person rendering the opinion has to say, well, it's obvious because it's self-disproblem, or this is one of the issues raised with it. You're just changing it, especially in a concept of design path. I mean, how obvious is that the picture name on a football, and yet there's design paths for the name on a football with fins on it? Well, your example about the handle being hexagonal or circular, doesn't that go right into the teeth of Enray Sammon, which was the design patent case about a stool, which had kind of had these funny legs that were shaped in an odd configuration, but the seat had changed from the parent application to the later file application from a square seat to a round seat. And then the CCPA said, no, sorry, you can't go back to the earlier file application and get that earlier priority date because you didn't have written description for the now claims circular seat. I understand. In that case, that's accurate description of that case. What I was referring to is in the parent application, it was round. In the issued application or the application issue, it's round. In the prior art, it was hexagon. So the roundness was a new development or a new issue or a new aspect of your limitation of the parent and the new limitation of the design. In your case, they had a round stool or square and then they filed another application and they said, well, this was taught in the other and round square, it doesn't matter. That's where there's a direct relationship. What I'm saying is the prior art. And when you're talking obviously, it's because the parent application, as far as obviously this doesn't count, it's you have to go back to the prior art and the prior art had a hexagonal shaped handle. Whereas in the parent and the subsequent design application, it was round. Now the issue is does obviousness come in. And my argument would be that it wouldn't because there's no underpinnings
. I understand. In that case, that's accurate description of that case. What I was referring to is in the parent application, it was round. In the issued application or the application issue, it's round. In the prior art, it was hexagon. So the roundness was a new development or a new issue or a new aspect of your limitation of the parent and the new limitation of the design. In your case, they had a round stool or square and then they filed another application and they said, well, this was taught in the other and round square, it doesn't matter. That's where there's a direct relationship. What I'm saying is the prior art. And when you're talking obviously, it's because the parent application, as far as obviously this doesn't count, it's you have to go back to the prior art and the prior art had a hexagonal shaped handle. Whereas in the parent and the subsequent design application, it was round. Now the issue is does obviousness come in. And my argument would be that it wouldn't because there's no underpinnings. There's no rationale for making the change from a hexagonal shaped handle to a round one that would be obvious to one of the engineers to solve a problem. And I think that's part of the underpinnings is you have to address why one would do that, although the TSR case, test analysis went out with dust. I can't think of a thing. 2007. KSI maybe? Right. KSI, right. But in KSI, they said, you just can't say it exists somewhere else. You have to say that there is the rationale. And that was, I believe, the word they used, which goes back to the TSR test, but in a little different form. But anyway, yes. The point I wanted to make was that there was a lot of ambiguity built into the system. And I think saying that we're trying to build ambiguity into it is not the case. The ambiguity is already there
. And that's why design patterns are so factfully driven. And why it's hard to make case law about design patterns in general, other than how they are to be analyzed. Because the fact is so different for just about everyone. And I think this court is recognized for quite a while. And that's why it's always continued the same reasonable one-skilled vignette, reasonably determined orders of substantial similarity. Those types of very, very, I hate to use the word, but vague standards. But that's what it comes down to and that's all right. Thank you