argued it is relates it is so remote that one of ordinary skill in the art would not have considered this would not have pulled this reference out of any stack or choices of possible references up there it's very important to look at the type of precedent that this type of approach that the board took in terms of considered considering this is our reference and this is a decision final written decision but would create you have a situation here in syria important and in all of these cases when we are looking to decide whether something is analogous or relevant are to get into a little bit into the facts and think about the perspective of one of ordinary skill in the art can i ask you i mean as you know as you well know there's a threshold issue about whether or not the appropriate honour's the issue of whether art is analogous or not is a factual determination underlying the issue of not obviousness the legal issue of whether or not a claim is obvious or not obvious the factual considerations that we raise on appeal every single day every single one of which we raise at the at the patent board in the patent court proceed particular the differences between the function a structure which we describe that we argue repeatedly that we the cases this out we're dealing with a cabinet the hiding of a compare how could you how could you look at these two as a relevant context so we've made these are this is a structural function difference if there's a mounting of the t v in the subway car  the t v and the south was sitting on the floor pushed against the wall in a room there are written there are safety considerations there are temperature considerations there are all kinds of conceptual considerations these considerations these seven even during oral argument i personally argue when i was asked by by judge lee ready at the patent board you know couldn't somebody just make the screen substantially flush some of ordinary skill in the art and i argued it's in the transcript at appendix three hundred and eighty seven i said the question isn't whether one could do this the question is whether it would be it where one of ordinary skill the art would have taken would have found relevan really the different contexts the different environment the different circumstances and their different circumstances and factors to bring these two together and we also specifically and this is in our brief appendix to sixty seven we specifically argue that the problem is different we're dealing with it that the two references to the invention of layers invention and this is our reference relates to a different problem and the problem it's a sound was how do we hide a t v star a t v cabinet that created sort of distraction in another room outside of that whereas the problem in blair was how do we often we place t v screens at a particular angle on the walls of a subway car so function function and structure and magic word be used in fact the word non analogous r is not consistently used in the various by various pals and and the president when you get when defining what is obviousness the fork in for example the notion or the concept of non analogous art is not even articulated as an element itself under the governing precedent but rather a way to think about the similarity of the art the relevance of the art it's a predicate if it is argued that the structure and function are different in all the references that i made also we went through a specification of the blair pattern we pointed out all the various claim elements that are distinct structurally and functional from the let me just name a few for example in the in the blair patent we have a we have it we were talking about it t v media system not a single television a t v media system in an underground subway car situated at the top a side surface openly facing down which a substantial amount of the passengers can see this these these this t v media see a system on all sides that's it's a t v media system in a subway car a subway car t v a system south is going to complete different structure and function we're talking about a cabinet eight rear projection one of these huge televisions back in the seventy's and eighty's some ninet that is in a room and you're trying to hide this t v cabinet and you're in you have the luxury of a separate room this is this huge space in the sefer separate room so this is a complete different structure and create completely different function we're looking at and we've argued all these facts and hiding it in large cabinet for rear projection t v in a separate room is a completely different structure and is a completely different problem and we argued repeatedly on the record including the records of exemplary references that i that i mention that we have a different problem and we have a different structure and function and by arguing those are the and those are the key elements that the th and so we don't we do believe that we preserve we preserve the record on this issue and the only thing more we could have done your honor is to actually have said the word not and you know non analogous and now we have a situation here which we did which we did not do admitted but otherwise the record is is is is complete with a plethora of references and arguments even at the our even at the hearing at the trial where we make the point that this isn't a reference that's not functionally not structurally anal and it's a different problem and this also goes to the issue of the motivation to comply combined why wouldn't why would how would a casea have the motivation to combine where would that come from when you're dealing with a reference that all involve some auditors in real cars or subway cars amano system in a car and could not find when there was none that he could feel be comfortable with and apply that has substantial flush screen and had to go to a t v in the house and at the foot of a reference that was it was not actually about of disposition of the cabin not discreet and that's the only reference that they could find in fact be the only aesthetic reference in this ceasar reference was about the frame around the screen in this examine them myself and asked them you know the questions regarding whether he would have whether you would think analyse the would have to be he cooled down and he admitted that an l c d would need to be cool he admitted that that having things in the  in the railcard to have a separate room to put a cabin there were there were other factors that were also considered and they were found to be did rely on that reference and that combined the references but i would submit to the court that there is substantial evidence to support the board's findings independent of sound which themselves would independently support obviousness in this case and what i mean by that is if you turn to the board's opinion on page twenty eight the board found that with the introduction of video systems and railcars during this time period the requirement for super clean interior surfaces along with the proposed a fiery regulations would have motivated those of ordinary dollars that case says that a claim the mention may be obvious even when the prior art does not teach each claim limitation so long as the record contains some reason  so everything that they argued was in the context of well there have been a motivation to combine would there have been a reasonable expectation of success so that i can give the board or us notice that they were making this argument  and it should be found way for that reason but even if you're going to consider this argument there is substantial evidence and the record to support that is analogous art there's a lot of similarities in terms of structure and function you have t o references that are directed to this later license now there's case law that says the field of the endeavor doesn't have to be the narrowest concept of the field or the particular focus within the field they're both related televisions so there's sufficient commonality between the truth that it would have an analogous art as a matter of law of were meant to create comprehensive safety standards for the rail car industry so all the motivations that the board right on aren't hindsight as blair alleges but evidence of industry consensus of best practices before the time  addressing for a minute their arguments about fire safety and cavity space these are arguments they make below but the board decides they were based on substantial evidence the board found on page twenty seven obvious than the prior art chipsets and i would submit that based on the evidence that's actually in the record the board's mind was supported by substantial ev thank you the field does cover psyche or use that's appropriate is this video display systems which if a video display systems is the appropriate field jumbo trons in my cell phone in my pocket presented to the board and were considered by the board all involve specifically as i noted earlier t v media media systems in a real car or subway car so there's no support and it would be a sliding scale to admitted that on the record that fire safety was a concern and the f r a was to be interpreted in light of its objectives was to prevent fires so obviously when it was a major consideration and things needed to be flush