impermissible hindsight reconstruction it's clear throughout both applications this is two applications the two six seven and the two six nine and six seven six two seven that this examiner thought that this application  because the examiner thought it was obvious and the examiner took no less than five references to back into that conclusion basically combining disparate isolated disclosures and then modifying that combination that explicitly saint invention that this court has sought to prevent and on to the abbot in addressing the question of obviousness a judge must not pick and choose amongst isolated elements from the prior combine them so to yield the invention question if some you can't be worried about an unduly narrow claim you're arguing that the claim should be more narrowly imperfect why not just amend that and there's no dispute about whether this is a proper claim constructional ok so if we may be heard because we don't think we have to this is the claim language that surrounds the words actually because you're supposed to read the claim i which in context of the words it's around in the claim well you don't you don't have to but if you don't you wind up in a debate and you wind up in a situation where you're at may not ever be issued well we actually have ten continuations that have been allowed and granted so i don't think that's the issue the applicants feel strongly that the words chosen in this claim and i will read the language to you to show are point should not be taken out of context and basically the reference that they rely on really they actually modify it to go against its own teachings and to mitt render that reference not intended for its purpose and which is teaching away from that reference they do not look at the clean language that surrounds it so in the claim that i'm reading from peach five of their proof and it's quotes claim one which week so there's an accurate representation in the audience location the predetermine are you audience location being marked to indicate the presence within the pre determined audience location is captured for inclusion of the at least one of the part of clips so that's the claim i would surround if it was the entire audience there wouldn't be no reason to mark the entire audience as being included that's the clean language we go to the spec the director does not point to any embodiment in the specification where our applicants said it can be the entire audience there are instances where the applicants say it could be the entire audience it could be a subset they don't see that the embodiments that are pointed to when they choose the applicants of incorporating a preferred environment no we're just looking at the claim language reasonably this entire audience does not ever say that you could take a shot of the entire audience i'm getting out of order i'll try to bring it back full circle but the really reference was actually for a lecture so if you're recording a lecture it was supposed to be an automated director a smart director so what it said is i have this complicated system of microphones and calculations and i'm going to determine in the audience who speaking not a pre determined location but which speakers speaking to the cameras could focus on that individual in a lecture on the lecture or so and never mentioned using the entire audience as the predetermine the location and specifically teaches away from using a pre determined location because it's looking to the location of any speaker within the audience so we wouldn't know if speaker on the furtherest left side of the other room was speaking to focus in on him or her versus the speaker in the middle of the room focusing on him or her so i say that we don't have to amend the claims because if we amend the claims then that c of explicit best of prosecution history a stop loss if we amend that term and that term is going to have no problems and we don't think that the applicant more importantly doesn't think that that's necessary based upon the surrounding claim language and based upon the supporting specification for the family member for the application that in the same clear way with this is the broadest by my wish this is the great great great great great great grandparents so this is the original non provisional application they claims in the allowed granted together now we understand we didn't argue this you can take any number of references but every time you add a reference they're asked to be articulate a reason why you would combine those references and how you would modify it if you're going to modify it in this case the examiner put four references together that were arguably related audiovisual recording of a performance were a lecture and then they added if he had a fifth reference which was not related which was the walk ins reference which is not analogous art which the watkins reference was directed to a security system believe if you look at the walk ins reference the cover page at eight fifteen sixty nine or actually figure in the location being marked indicate the presence with them a pre determined he seems to me that they your your your main complaint is that the that the term pre determined audience location has been that that if that even if if you move the the prior art doesn't apply the the second argument is that two fall one that what they are using the but really admittedly the director admits really doesn't teach a pre determined location so even if you set a pre determined audience location was broader than we assert which i disagree with but will argue i know then you go and look at the reference walk ins that they're trying to modify the combination of abrams freeman kirby and really which there's no explanation is really why they go together but would assume a cat the watkins reference does not teach using that pre determined location to be an audience location and it's not analogous art they've never the examiner never said it's analogous art in for office actions to examiner answers and the board and the director merely pay lip service the same to compare it to a second still image taken when indulge in child leave the secure facility and they compared the still images not video clips all the other references are directed to video clips that can be at it so the still images are used with data processing such as facial recognition to determine if the right child is living with the right at all it's not analogous are so i merely plucking out of the pre determined location because there happens to be a camera is the definition of  impermissible hindsight reconstruction picking and choosing isolated disclosures amongst the references and that's what we're using them out of so even if you take our this regard our interpretation of pre determined out its location which we do not think you can do i think the examiner and the director have taken overly broad reading these references don't go together and that's a matter of law they have to say a reason why the combined will and a reason why it's a nonstarter never does the exam are states and others are few look for example at one of the office actions in that the board correctly applied the broadest reasonable interpretation to construe the pre determined audience location limitation as being any part of the audience or any and including the entire audience and that's a this layout you could move the cameras around for example so in light of that i don't think that the boards construction turn all the broad is is unreasonable and it also as your honor pointed out the applicant could have amended the claim to more clearly articulate what the scope was by in a number of ways the second issue ellie to touch upon is how the board correctly found that the prior art rendered obvious the marking a pre determined audience location first the examiner and the board found that really taught taken video clips of specific audience members and it also disclosed taking pictures of the general audience when a person wasn't asking a question and in the record at eight fifteen eighteen and paragraph fifteen a really specific specifically talks about how it's following these pre determined expert rules of videography to include video clips of the lecture and then when someone in the audience that particular person but it also says to make the video more enjoyable to the viewer you should also include general shots of the audience when no one's asking a question and this is a very clearly pointed out at eight fifteen twenty six of the record that's really a paragraph sixteen or it talks about including how you how you won one way you can go about taking a picture of a video the general audience and it actually says this is the paragraph eight fifteen twenty six paragraph one sixteen it's been at the bottom of column one it goes across the top two it talks about including general shots audience numbers and it says you do that by doing a slow pan from one side of the lecture room to the other so i think that makes it very clear that's a pre determined audience location that's not a single audience member that's the entire audience and you're painting from one side of the eight in the last sentence it talks about and a microscopic level each camera camera transition is random resulting in interesting video but it says at a macroscopic level the transitions they're not random they're actually following shots of the audience now another important point here is the board didn't rely exclusively on the teachings of the board actually said they found that marking a part of or the entire a actually say below the block quote on eight they actually say they're not persuaded that it would have been obvious to mark a pre determined audience location is top i route but then they go they say more over there not persuaded that it would have been obvious based on the teachings of the prior as a whole to include various types of clips including a critique pre determined audience location and if they found that it was just the combination of old familiar elements to achieve predictable results and s rebut that argument the board also said that just marking a pre determined audience location was not meet the challenge and the last issue like the touch upon was the printed matter rejection this was an additional rejection a particular location that's being reported and then the second part of that test is whether the printed matter structurally or functionally affects the substrate which in this case is the server upon which the clips are stored and here the clips don't affect the structure of the server they don't affect how it functions or operates users can access that server an exacting way regardless of the content that is recorded with the content of the clips may not affect the structure of the server but the content of the clips is intimately and directly involved in the overall message that's being acclaimed is it not well is isn't that the whole point is that you are going to have various clips with particular content that you've been used to make and a custom presentation that's exactly right in the fact that you're pointing the camera at a particular location whether it's the band or some place in the backstage or of the audience were people are tailgating just because you're focusing on a different different location doesn't make that somehow patentable and shores argument that you'd have to actually a really if you look at the doctrine of the printed matter doctrine printed matter is a subject matter claimed for what it communicates and here the video clips their only purpose is to communicate events that occurred at the event it so if you agree with that it's printed matter and step two it's clear that the video clips how are stored on the server or on a d v d that you create it's not going to structurally affects that substrate the server or the d v d and it's not going to affect how that d v d or the server functions so i think although it may be difficult to get your mind wrapped around this because printed matter traditionally is words that are printed on something or some bills that are printed on something i on a couple of things that the solicitor touched on he said that the the board found that were not persuaded that these references the teachings of the cited references and to provide various clips including clips of pre determined audience of patients to mark the presence to indicate it with it would not be obvious there's no evidentiary support cited so it's the same thing that the examiner is guilty of that the board just found that this is obvious they  said we would have found it obvious to make that teaching the reference but they're not we need anything in the reference just a board saying it has nothing to support that position same thing with any part of the audience where the entire audience there's no evidentiary support really to the person who is speaking we're doing a pan of the audience for the audience or for the viewers enjoyment so don't get bored looking at the lecture  this court never relies on boilerplate language especially if it was written to help our side but nonetheless our applicant never said that the pre determined audience location could be the entire audience in fact to the contrary the preferred environment pretty much the only embodiment the described in detail says that the pre determined on its location is a sub spot so you're a ticket holder and you want to go get your video of you at that venue so you can later create a video of you