prosecution the oversimplification of our plane vs the bolstering of the prior references none of the prior references taken alone or in combination cited by the united states by the trademark office include the  and this is the element that gets boiled down by all the patent office a written excrement associating ownership rights in a portion of the power received from the alternative energy power generator with ownership of at least one court in this alternative argument so the the board and the director have both raised that for the first time that wasn't raised by the examiner in seven years of prosecution when they raised this issue they rely on the conclusion that in no way  the written instrument depend on the generator the distribution station or the residential properties and these elements do not rely on the written instrument so the point of limitation limitation should not be afforded patent wait but this court is held and will lock which is also bill port au prince and but it's the actual timing of the ownership rights in the power generated by the alternative energy source with the ownership rights in the property which is different than the in the cases where they found that the printed out matter had no patent ways they acknowledged that everything else was already known and not on time and obvious in this case none of the prior references show that was not a trivial difference in this way your honor is that when the property conveys the ownership rights in this alternative power generator go with the ownership rights in the property as compared to simply signing up for power from pepco or virginia power and electric so in this case different than the in say the king farm a case in the king pharma case all they said in the printed matter which were instructions look just take this with food and it's going to make it more via reacts in this case we're not saying something that was already known thirty years ago we're saying we're tying ownership rights in this alternative energy power generation with the property itself so that if you have say a subdivision with ten houses the power generator is part of the subdivision is tied to the property gulag king pharma and the guy which are the three main cases cited none of them actually just discussed that particular issue to my knowledge issue it was reported it was raised at the board level not the examiner level so it was never there was never any finding of fact by the examiner so i would have to say that they're making it up matter thought well that wasn't waste of  examiners documents so back with respect to the prior references again because we believe that the written instrument of limitation should be given patent await because the ownership of the real estate property with the alternative power generator and the portion of power being generated which is new and non obvious not shown in the prior references going back to the prior references the examiner relied on raster and paying for a service you don't actually own that right and that's what we say we depends on the terms of the contract for a while that the terms of a conventional contract is what or what distinguished in the specification of this application so what the point of the misapplication is that there's actually ownership rights in the power and the power source of the power being generated from the power source with the property ownership so that it conveys with the property and that's that's supported in the specification as outlined in our opening api ages eighteen and nineteen it shows all the specification support for that concept and the the actual article by rascal or does not mention who owns the pilot plants the pilot plants actually says the furnace sized units which can produce three to seven kilowatt of electricity could become a practical reality within about two years and this is by the author damn raster of a third party so we don't know from this article whether the co op owns the power generator whether the property owner has the power generators were more likely to be faced in this article that a third party was violently ownership means broadest interpretation the claim elements must be right in light of the specification and in the specifications that actually is criticised so that the fact that the contractual relationship between a power supplier like a seller and other utility is criticizing the specification of not being a good thing we want the power to be the power to be conveyed with the property ownership and that's what suggesting the specification the spec and the claim element should be read in light of the specification in written instruments that's correct your honor and that's been consistently argued throughout the entire seven years of prosecution then with respect to how they say that the examiner acknowledges that the rascal or one of the half page articles does not and that the examiners answer at a five thirty two states however since no written agreement is expressively shown by a wrestler which none if the cooperative agreement of tri co is only used to show a written agreement and then at a five thirty three however trego shows that the real estate property owners who are members of utility cooperative enter into written agreements where they would own the power generated by the if i could refer a view in the joint appendix to page a seven thirty seven this is all that too thirteen she says so try to go as a specification for co operatives wind extension  originally work for rural areas they were generating power they were trying to get infrastructure out to rural areas so this whole specification is more about the actual lying and distribution system so to thirteen ga p seven thirty seven simply says ownership of facilities underground facility shall be installed owned operated the meatiness provided in sections one fifty eight one fifty nine and one sixteen one sixty of this line extension policy if you refer back to those paragraphs they only describe rights away for a line extensions and facility relocation so there's this terse disclosure in trego is really not directed to ownership of the power of the power generator it's directed to ownership of the lines so the distribution lines so this really doesn't enhance the ras or at least reference by saying that it's a written agreement that shows ownership of the power generator or ownership of the property for that matter so this combination of r incorporated into the deed and these kinds of limitations are not found in the claim language and while they are discussed in some ways in the specification different environments are discussed which contemplate a more flexible arrangement so the classic problem we have here with the patent holder is that they're trying to make the claims more rigid and either the words of the claims allow or  sure what your honor is referring to there are some dependent claims that talk about the optional feature but starting with the independent claims the question is does it require a permanent relationship and common community cooperative ownership of energy resources but the problem is how it was claimed well i think in order to apply the prior art references we have to have an understanding of how the associating term should be defined and that is really kind of bubbled up in the course of the prosecute the prosecution examination of the claim so if we turn to the prior art references there isn't any dispute first answer your question the board said that the reason why conventional arrangement can work is because there is an intercept i mean typically you own your home it's common to own your house it's common for the for the power company the reason why the board came to that conclusion is because the term association is left so undefined in the claim to specification but what i wanted to clarify of your honor was that while the sorry i think if i understand your honor the point that the board was trying to make is it doesn't say common ownership so it says association of ownership of the power and association of ownership of for the purposes of argument that a narrower construction was appropriate but then in report responding to the arguments made on appeal the board is pointing out to the applicant that under th advocating for it's taught by the references but you kind of have a problem with how you're going to construe your claims because your claims don't even say comment or shift and if they don't say permanent then they don't say there has to be a deal so i think the board  trying to teach through its decision how it's reading the claims but fundamentally the first step the board does it adopts the reasoning of the examiner and the examiner assumes for the sake of argument that there is common ownership and he finds that those elements numbers but on the band so there you're applying words to the substrate that it's giving that substrate a kind of new structure meaning here we're just have a legal instrument so it's not changing the way the power just where the way the residential property is constructed the way the power is being supplied the way it's being distributed the way it's metered it's not changing any of that all it is is taking different tangible pieces and then tying them together with a legal document so property well what's abstract about it is that it relies on a legal relationship so i mean one could imagine any different set of tangible objects and then the fourth limitation of that claim element could be we're going to sign a legal document that says you own a b and i own c and you know and it goes on from there and those those are in those ball much more nicely into the kinds of claims the kind of claim elements of adding the given patentable weight under a printed matter than they do under other claim elements which change the function of the system or the method doesn't see would be more helpful to us so i think we really concentrated on the prior are the basis for the action well your honor you know that clearly that is what the examiner did and that is what the board adopted and i think it was it was in part in response to some of the arguments made in the appeal brief to the board that the board felt the need to point out that there are other effects with this claim that go beyond the application of the prior but your hono here is not a conventional power agreement that probably would have been sufficient but the examiner dug deeper and said i'm going to find alternative power i'm going to find it's close i can't of these claims it's possible i'm going to make the rejection on that  and the power source and the way even in the patent the term cooperative is used connote some kind of common ownership so i think try code does more than just providing a written instrument but again in response to some of the arguments made by the patent holder preview honor back to the the prior and not just the prior to actually show i think that counts on behalf of the director to sit knowledge that it must be presumed that rocks are shows that if the furnace size units are put into the home it's owned by the that unfortunately doesn't say that so the trickle reference doesn't make up for that deficiency ownership is not disclosed in that one page one and a half page article by rustler and that's a key phrase used in the claims that have been relied  says pilot plants this may in the future exist but it doesn't disclose that it's owned by the home owner that it's owned by the cooperative that it's owned by a prison with a third party who's running the pilot for the government so this is supposedly the examiner has actually said that rats are inherently discloses this ownership relationship which inherently i think in an article like that has got to be a lot more shown and tried as the court has pointed out really it doesn't show anything more than the best at best and two thirteen g ownership of the lines and then into it to which i don't know why they examined it rely on the minimum written agreement acquire requirements that shows each line extension agreement shall at a minimum clear the following information it doesn't say each power delivery agreement and it just talks about things that are normal in any other group or deliver a powerful name of the applicant service address and location