recites several improvements including starting a claim seventeen or referred to that as future contingent disablement which is the instruction to disable the product at a specified time unless an additional message is received and the best example of that digital message would be a message confirming that payment has been made which would then stop work for disablement of a vehicle the next p the countryside message that instructs the device to disable the product at a specified time in the event no additional messages are received by the device and that's the important language at issue here  claim requires the capability to not disable if an additional message is received so another way to say this is disable unless another message is received and the best example of course is this payment if there's a payment payment confirmation message that's received then that either stops at the first that disablement that otherwise would occur at a specified time and what we have here is the examiner and it's free in the rejections the board on appeal and now the morgue in affirming the rejections and now the director on appeal they completely ignore this additional messages limitation method by the device well i don't know if i'd call it a crank construction issue i know in previous appeals there's there is a question of what's claimed construction versus what's applying the construction but in this case what we have here is really just ignoring the claim altogether i don't i don't seem interpretation of this claim language i don't see any application of this claim language to the prior art is just ignored and the way that the way that it is no ignored by the examiner and the board is when they refer to bishop as one zero two invalidating anticipation reference they refer to the language the disclosure of bishop that has disable specified time there is nothing in the disclosure that has the rest of this critical language which is not just a message instructing disablement at a specified time but it is the message instructing for disablement at a specified time unless another message is received and it's the language that says in the event no additional messages are received by the device and once again the best example of this in just absolutely completely ignored and if you look at the language where the examiner makes the rejection and then the board of affirms it once again what they refer to is the disclosure bishop that refers to now it's actually referring to a warning but let's just assume for the purposes of argument that it's also talking about a instruction to disable the main point is even if it's an instruction to disable at a predetermined time and there's nothing absolutely nothing in the entire disclosure bishop that says that they did that it's instruction to disable at a pre determined specif to the device that it's connected to the product the vehicle that says disable at a specified time as example would be when the payments due or maybe the day after the payment stick so that if a payment is missed it's going to disable in fact it's going to disable even if a payment is made if there's not additional message confirming the payment was made and so that's why when and it can't be ignored and has to be addressed and so while this board while this court would affirm fact findings when they're supported by substantial evidence this is a case where there's absolutely no fact finding to affirm  that's a novel concept credit card readers were no right because in your past education to just say you refer to it if you call could be equipped with a credit card reader not shall take payment so it's not like you think that that's something this is a new innovation in this line of products where you have a credit card reader coupled to the product which gives you two it has two aspects to it it's an hour or refer to that as scientists of payment and the means of payment and the credit  there's payment at the store or mailing to the store the device coupled to the product doesn't receive payment it's just like he once you pay you get a key that you go on lock the door and you're still paying at the store either in person or by mail and so this example this is an example once again where the way the rejection was made in the way it was affirmed by the board is they take the palmer at the store it's its or by mailing to the store it's not put that what the examiner refers to as the communions convenience of paying at the device and so when you look at the way the rejection was made it's it's an obvious rejection so they there was some mention of motivation in the examiner refers to as a convenience that's provided you there's a primary reference that's bishop and there's nothing about payment in there not a credit card really not credit card but when you look the palm are actually teaches away from home and doesn't have payment at the device it doesn't have the convenience that's provided by this invention by payment device in home or you go to the store pay or you mail payment to the store so palmer actually teaches what it doesn't sure and this effect in bishop and so by the examiner finding they didn't even find that there was pretty card reader they just said the optical card in homer teaches a credit card they a credit card reader it's probably as they do for the reading and something that the store credit or debit card or something like that but it's still there still legislation to come by because the secondary reference with a alleged credit card it would turn to that to make it more convenient right if it was so obvious to you to have this convenience of paying the device you wouldn't have homer talking about go to the store and make your payment there or even more inconvenience mail your payment to the store and then wait to be mailed back or go pick up at the store this cheat that you didn't use unlock the device what we have in this claim is true convenience is paying at the device by credit card and once again it's like they completely read out the two aspects of this of this claim language credit payment by way of credit card reader coupled with a device cited for the payment and it means the payment neither one of those  go ahead and use up a minute or two of my rebuttal time so i can at least close this out clean thirty five there's this is not disablement re enablement any of this this is something completely separate this is a second message and the second message is a very specific markets group of four selected particular types of notifications and struction zz and what's again these limitations are ignored there is a rejection based upon language in  where they're referring to warnings and notifications advertisements notifications and advertisements are not linked to the payment schedule that's the key because the first message is linked to a payment schedule the second message is responsive to the first message so you're talking about these notifications and instructions that are sent responsive to the payment schedule and in the real world one example would be payments coming due so now i have a method tied to the payment schedule and that's the key there's an acknowledgement signal that's internal that's the device acknowledging parts to itself the signals are received or functions performed it's internal it's not an output message to a user which is what these particular output messages are notifications and instructions and then finally acknowledgement signals are certainly not in this market true or not notifications or instructions they're just internally knowledge transfer signals within the device and all preserve well i will your honor although i have to say that it's a little bit confusing for the office here today to hear schwartz say that the claim limitation in dispute is what follows the language at a specif they're implemented immediately and so the director spent some time talking about the fact that at a specified time and pre determined times for todd and this ship which i think is relatively clear i also think it's clear in bishop that the fact that if in the event some additional message is it received it's clear because we're talking about a real world application that counsel was referring to so and bishop specifically said over and over again about that's a woman and in and enablement that you receive warnings so you're driving your car you haven't paid warning you need to pay warning you need to pay warning you need to pay if you don't pay your device is going to be disabled and that's precisely what claim seventeen says in the absence of some additional message for example the payments been received the device will be disabled  well i guess but the claim thing is in the event a message isn't received it's going to be the sea of gold and i think bishop does teach that but i think to the extent there is any ambiguity and some of the teachings that that the examiner in the board pointed to a bishop i would point the court's economy teen so i think provide the kind of clarity that you're looking for and calling me t n and i'm reading at approxim line forty in the sun a eleven zero seven it says for example prior to disabling the starter power mechanism in a piece of equipment the warning device can provide audio warnings to the user of the equipment that the starter power supply mechanism of the equipment will be disabled unless the operator perform certain action e g require mean that and that lines up very nicely with what clay in seventeen the same there was also some discussion the brief that the starter mechanism for different aspects of bishop doesn't teach that doesn't have a time or a process or so because there is no time or process or it can't be pre determine time or can't be a a time disable message that we're permit some message in between being sent to just stop disablement but the biggest you read bishop it discusses processes then timers being taught throughout and it's certainly not limited to the warning system turning to claim twenty five which is the obviousness rejection with a combination of bishop and palmer the the examiner on the board i think clearly we're looking to palmer because palmer is an example where you have a a reader attached to a device i mean if you look at the claim and i suppose they say here this is never been done before in terms of having this reader combine to be a device to the device and here you have the examiner looking for analogous art finding a renton situation finding as a by the card reader attached to it reading a card and able and use a product i mean it's it's right on point down the line until you in and then the blue brief they say well but that's an optical card reader that's not a credit card reader well you know this this is during examination this is an application not an issue patent so they can clarify i mean not only did they not clarify i think they've been over backwards to not show any information about the credit card reader how if this was clear by an optical reader but up to a reader is different than a credit card reader right so that's clarified by calling it a credit card rates well i think to you and me credit courier is a very it has a plain meaning but to a person of ordinary skill in the art in this field i think it would be more broad because so they could have you think they could have overcome this rejection by simply saying by way of a credit card readers that does not include an optical reader well i think they could well for example and i understand this is an example from today not at the time the application was filed but now we're using our cell phone to take pictures of credit cards to process credit card transactions not a fact our phone it's an optical card reader and back in the day also used as manual plot that sliders which were a credit card reader credit cards well i think it's two sides of the same coin because the claim says credit card reader and then your first you're asking what does it read i mean what it reads informs the meaning of credit card reader but we all know that credit card readers can read more than credit cards they can read secured credit cards i mean the position of a talent as a credit card reader has to read a card that includes a promise of future payments just a very narrow would be and their opening position in their blue brief was that a credit card reader means reading a car that has a promise of future payments and i think in rebuttal to that what the office is saying that a narrowed it to make it clear i think they could've there's one line in the specification discussing that's in the and what it goes on to say isn't is a different embodiment than what's actually claimed so all they could have very easily said the kind of cars i suppose that payment was taken for or could distinguish a credit card reader that the inner workings of it i mean there are different kinds of credit card readers and how they operate but i think what the examiner was saying which the office edition has was reasonable under the circumstances with no expressed up as a definition is that when you have a reader coupled to the product that's reading a card that represents a payment has been made to allow access to the device to enable use of the device that is a proper basis for an obvious rejection of this particular claim and as you said the the applicant could have clarified that the exact way its product its product works to get around that broad teaching i also think the examiner was looking to palmer because he wanted to show that this idea of enabling access to a product by way of card readers an old idea me palmers for nine hundred eighty seven and it's a very tiny leap to go from a card reader attached to a television that i think you said judge stole credit card i mean a credit card reader there's nothing new or inventive about that yet but that's right but the analysis would be a different one that we have here right you would say ok this is different the differences between the top a leader and a credit be a better analysis so the question is let the analysis that happens here sufficient to sustain the rejection and we think it's not as good as the analysis that you just me but we think it sufficient i also wanted to respond  helen talked about there's a motivation a kind of i'm lacking we don't read the appellant's brief to challenge the motivation to combine i think really what it was challenging with is a credit card reader that not a credit card reader is using a credit card is it not using a credit card that's the argument we thought they were making and turning to claim thirty five this is a claim about sending the response of message that the director's position is first they pointed to the teaching in columns five that specifically talks about messages being sent and identifies notifications instructions and advertisements which is virtually identical to the language used in claim thirty five then when appellants i well it's not perfectly clear here that these messages are responsive to a first message then the office said an advertisement or an instruction and i think the teaching of bishop of the whole clearly teaches what claim thirty five is talking about it's talking about responsive messages and it also includes the content that one could argue is or is not required by the claim and counsel for appellant said well this is something that's just very unique it's never been done before you get an advertisement or an instruction when you pay for something and i think that just overreaching i mean we've all made purchases and when you make a purchase you know you get a flurry of advertisements i think of myself buying something at c v s and the receipt keeps printing and printing and printing and i think the idea that we're trying to stretch these claims to include old and an obvious idea such as receiving information is going it's going too far here we're looking for at it at that what was the hope they carry a lot of insurance for the first time that they shut down an automobile by mistake there's a bitter and payment and the person rushes out to drive to the emergency room yes and then you know that's actually a good point and i you know i recognize and that was for sure in this case and there are there are mechanisms mechanisms mechanisms in there in actually describing the pat talk about several free uses emergency uses so that that issue has been addressed and i'm glad that it has quickly claimed seventeen when you hear the director talk about that when you ask him to point to the fortune of that ship which has the disable to disable at a specified time unless additional messages are received they point to warnings and they say warning warning if you don't pay warning if you don't pay the device will be disabled didn't instructions that's completely distinct from what's in the claim which is an instruction already sent and there will be disablement unless a message is received such as confirming payment so they're two separate different things they're referring to warnings warnings to the user what the claim refers to and requires is instructions to the device totally separate things the another issue is this reference the comic tienen as that you recognize that as a new argument was not raised below and or in rare should be not considered but once again if you're going to look at it trigger event event associated with the payment schedule so think about the example where we know you're coming in for a payment so organise any of these notifications or that is not anywhere mentioned in the ship and so close