was already examined in the patent trademark office in the original prosecution and was the subject of the final judgment of the united states district court in california that drell dealt directly with i had just patient over do rejection of a crime that identified three or four different references that made up a rejection on the basis of obviousness and one of three and the claim in question  storage and understand voyage and make the rejection at which point they had a collection of a small collection of references that they had considered in a rejection or in the rejections during the prosecution that when a later claim was submitted which the patent office determined should be allowable they necessarily have to consider that small collection of hat and references that it had used in the rejectionist during the  in the prosecution history itself was your argument it was made by the patentee against george not in this specific claim twenty two that we're talking about here was like twenty two was submitted as a new reasonable interpretation here on r and i think the term then is fairly understood as being within the bounds of the reaction zone and the they claim repeats the use of the time and twice  in that claim the the issue that we face here may turn on the meaning of reactions on itself the this term reaction zone was fairly well understood by the examiner and the board during prosecution the reaction zone is that area on the medium contains the immobilized reactance well with respect to that issue  does not have to occur in the reaction zone but it can and i'm referring to calm eight and sixty through sixty five that one may detect the presence or absence of the chemical in the reactions own  performed pursuant to the invention insulation but were only dealing with the claims that were allowed not necessarily all the claims or inventions that were being pursued when the application was filed so this comes from the specification the claims that the applicant was able to get through the patent office or have that limitation that the tech think takes place in the reaction zone and it's not just the first portion of hard to reactions on should be interpreted as we understood with the examiner that it would be the place where there is location of the immobilized react next point you're going to get to his labeling correct  those things come from the specification and so a label creates this this new entity weiss operates in a totally different manner weiss has this indicator dye which is absorbed should react and and just die can fall off on his internal label indicator because it can fall off or can be attached and indeed the basis of the testing label no it's a very well whether it's very effective or effective at all whether even works is a question but rice intended its invention to operate by by detecting whether  and developing fluid is perfectly permit by these claims which are open to additional steps and even if you look to for example swanson specification neither party thought of that question and i'm sorry that wasn't raised before the board neither of us thought of that in our briefs and we don't have that included in our record the primary manson's were overcome and the playing twenty here it's being cited as a primary reference in the anticipation place case that the only reference to show each limitation of the claims on appeal and with respect to until after the jury had already reached its verdict the court below stated expressly stated this issue hasn't been breached so i'm not going to address that when the federal circuit looked at the issue  a federal circuit noted that said trying had urged the issue and therefore since they didn't raise it properly in the district court never considered it there really wasn't clear and convincing evidence a standard again that doesn't apply it during show even here and there drawing where talk slim indicator dye is fixed and they even have written here visually observed that that's occurring next to the binding peer within the reactions which they've reduction in collar that occur within the reaction zone and swanson has continually asserted that one would only be able to look to see or i should say only  face that one with look to the solvent front to see whether di was or wasn't present in the silent front so that's one of two possibilities one could look to the zone itself and that's what the examiner down and see whether the color changes or does not change within the and so there really is no evidence of record they at for the variety of labels encompassed by the term chemical knowing it he or that could potentially be covered by the term mean they're not limiting it and if there really is was their belief during resume a nation they had the opportunity to say co payment the label they had the opportunity to insert those words i mean that's why the p t l gives the bro investor confidence in the validity of patents but the amendment was intended to overrule the decision of hours the amendment to loose enough an examination yes for the policy that was being performed at the time was that if a reference appeared in the patent in that if it appeared in the record of the patent it could not be used in reexamination the only thing that the statute said in the amendment was that  previously considered references that's what's really the big issue of the of the article three issue was raised in the oral argument and before the board of appeals they gave a one sentence response to it in their