based on on one hand a primary reference for highlighting tape and on the other hand primary records secondary references for radio opaque x ray materials and band aids so the question is how does one go from highlighting tapes to x ray radio opaque materials and band aids and the answer is you don't you don't unless you're using my client's patent application as a template in order to pick pieces of unrelated or two paths and you also don't when the disclosure of the primary reference of only refers to a singular tate and it says the take it is made up into reals in a manner analogous to normal it he sits tate so the primary reference indicate that we should stay within the norm and the norm is not radio opaque materials ok i'm a little unclear on that argument i think the board was saying so you can direct me if i'm wrong is it pointed to salad explicit reference there to adhesive tape which gives you the lead if you need simming you need one to take you into the other reference which is or whatever because those dealt with dispensers for real he says take so that was the lip what's the problem with that i think the quote actually says normal and he sort of takes and i think in the context of the primary reference normal he says tape means a highlighting tape which is more of a life that he says i think a lot of different materials use it he said furniture uses it he's a construction materials use it said and so when he was out there and bolting that's correct and there are many different types of references which use he says and i think it's unreasonable to think that one skilled in the art is going to go into many different areas and search out many different areas involving many and he says and i think it's also instructive that is the saner reference was not picked up until the second and final rejection in this matter so the examiner had to do an arguably more expanded search in order to find his other unrelated pat so again radio picked materials which have metallic elements like aluminum lead barium sulfate these are not related to light that he sets which are like post it notes and i think some of the patents that were disclosed here hooting fossilman and for use which were directed towards highlighting paper say that the case of is like a posted no so this is not we're not talking about leds we're not talking about aluminum we're not talking about barium sulphate and it doesn't make sense to combine those types of patents those types of references with highlighter tape which is a light he said and also we pointed out the norm in this case is either no container which is with what's alice goes or the norm in this case is one take one compartment one slot one cutting edge and this is what the general highlighting tape patents point out and by pointing out that the norm is one we are not attacking the references individually we are pointing out that in that area the norm is one and the only way that the board in the examiner could reject my client's application was to go outside the norm to reach out to unrelated patents and that's how they were able to reject her at a time a little confused at the standard of what the normal i mean that's because it outside the norm is that equivalent to it being non obvious i think in this case it is i think in each case regarding obviousness you have to read the entire references particularly the references in the area in this case of filing date and what suggest with one compartment one slot one type of tape and why am i even going out looking at radio pake materials involving x rays and band aids that have caused sections that you can't see for they have special type combined together and i think the other part of the argument is also that those other references not refer in the specific embodiments to them being different colors but i think the major part of the argument is that these very different fields should not be combined in this instance where the specific references do not indicate that you have to go outside the norm so if somebody comes along next year one thousand application for a pat three slots rather than two if i think the patent claims probably say two or more but i think there are many patents that have claims for two or more when something else had one so it's not a prohibition of it where somebody comes up with something that does something with two or more verses somebody did something with one  which again the salary front doesn't even have multiple sizes who knows that even need multiple sizes for highlighted tape but who would even bring in that reference at all who would even look at that reference when it's directed to radio paper tiriel both of those references for the radio pick material that band aid are not references which say we have a role dispenser oh and by the way we can dispense and their references which  inventing something for andy we are inventing something for radio paid materials so reading those references is not like you're looking at something and they're saying oh look these are dispensers let's put it in here they're inventing something for a specific purpose and that's the way they references but i think a natural area of reference many times the patent office comes back with restriction requirements and now they're getting more aggressive with that and they'll split up  into five different species and they'll say these five species are patently distinct because they require too much of a burden for searching and since the patent office is able to do that with that burden on applicants to split up their applications pay more fees they should also in an obviousness context not say ok we can search out everything obvious in this context but not search out everything when we're looking at a restriction of content so i think that's also interesting to know  before it a handful of references but in reality in practice we don't have a handful of references we have thousands of references and in adhesives there are thousands of references on  if this is a little bit off the point but there was a television program on martin modern marvels they did something i use and they showed a room with electronics in front of teachers and carpets and everything you could imagine and what they said was there's this room w as a factor but it's not the sole factor and i think we have to be careful not to immediately judge somebody as an invention without looking exactly at what the references teach there's always an obligation to read the references as a whole and see whether they diverged away from from whatever it is and common sense can also be used as a factor but we can't immediately judge an individual's invention and say you know this is obvious i just think this is obvious now in hindsight i think we have to read the references and that's a legal requirement to see what they teach and see if they diversion away from whatever it might be those of you into your favorite i like  use of it he's played any significant role in the board's analysis so that's how they got the first primary reference to the others exactly  sallah says that color can be used for aesthetic significance which requires more than one power the same and goldstein teach a convenient way of having more than one rolled tape available at any given time again the tie in is the fact that solved is a form of or analogous to of use of tape and the cena and goldstein teach containers for dispensing there are limits your honor that is correct and the typical rules that are applied are referred to as the field of endeavor search within the field of endeavor or beyond the fields of the same field of endeavo as the invention solutions that are reasonably pertinent to solving the problem that the inventions solves i think you could look at in this case that both of those tests are satisfied so the field  and so the field of our one of the fields of endeavor is that all four of the references tie in with the invention is dispensers for that rolled materials and then beyond that to the extent that sala suggests the need for a convenient way to dispense multiple roles of a variety of tape  i would agree with that hero was a person of ordinary skill in the in this contest well neither party relief explicitly set forth a definition of that i would suggest  colors the need for mechanical ways of conveniently dispensing i think that's a fairly broad category that arguably is the appropriate art or field at issue here i would i would add your iris that to the extent that my understanding is that the argument that is being made is that the references are not analogous to the to the invention and that argument was not really made for the reply brief the term non analogous was not used in the opening brief and not until the reply brief so i would submit that argument is the way and unless there are furthe