end of the dispensed can the board's determination of those broadly claimed designs are patentable raises two issues that go to the heart of the inquiry into design patent obviously the first what constitutes a primary reference the starting point for the obviousness inquiry in a design pattern the second how do you construe design pattern claims when part of the claim design is shown in broken lines the case presents a third issue regarding the nexus that a patent you must show between certain secondary considerations of non obviousness and supposedly novel features of a claimed invention i can take each of those issues in turn or as the court prefers well let me ask you i mean i'll ask your friend this too because i think it was for me some confusion and actual differentiation in this case sure so what the what the broken lines can be used for is environmental context that is the invite the broken lines teach the person reading the patent teach the public that the claim design of a solid surface over a can lying on its side appears in the context of a gravity feed dispenser but there's nothing about the gravity feed dispenser that's claimed so if you look for example just pages ten or eleven of our opening brief so page ten has the figure of the six or six patent page eleven has the actual claimed subject matter of the six were six patent if you look at the claim to subject matter what you see shown in solid lines are the dimensions of a can which we know is the dimensions but campbell soup can not something unique that the patent he invented with stops in front of it and then there's some solid surface about it we know it's solid because of the shading lines but we don't know anything about the hype with their ok sixty seven your honor so the board construed so again if you look at page sixty seven the board's construction and compare that with our page eleven which shows just the claim subject matter or page ten which shows the the entire drawing the board used the broken lines to determine that for example the solid surface is taller than it is wide it used the broken lines to determine that the solid surface is positioned to particular distance above the can lying on its side use the broken lines to determine that the solid surface is at roughly as wide as the can lying on its the broken logs don't change to just ok so the design and we're now focusing on what's taught by that solid surface area your honor all we know is that there's a solid surface that includes what's shown there and shading the entirety of that solid surface area could be wider than it is tall it could be a circle it could be a triangle it could be an octagon there are no boundaries defined around the solid surface and we don't know how far it extends down towards the can because there is no bottom new to there it is what is there to construe so the broken lines and again now focusing specifically on the solid surface what is sometimes called the label area the all of the the top bottom left and right side are all shown in broken lines which means that there is no claimed balladry contrast that with the camp so you can see a definition of the height diameter of the cam whereas for that solid surface it can according to the can according to the design as shown it can extend in either direction it can stand up it can extend down it can be a circle can i see if i understand your argument and this is really a quite real question it seems to me you're making two arguments is a second argument you're making at least with respect to the claim construction cause we don't know what the boy did because they also rely on the dimensions and how this labeling all fits together and there was error in how the board construe the impact of the dash lines so is that i know you're arguing there is the can doesn't do it for you but assuming we reject that do you still have an argument left respect for its blade construction yet so there's two different issues there you're on the question of whether a can has to be shown goes towards the issue of what constitutes a primary reference where the board got its claim construction wrong if you used the broken lines to infer some proportionality between the solid surface that's disposer over the pan so for example it used the broken lines the to presume that the solid surface sits above the can at roughly the height of a can but that's not cl proportionality it probably helps to start with the primary reference because the proportionality issue for example has a little bit less to do with the linz reference than with the sandwich reference one of the things the board said was ok well sam way shows an audience that had can but in sa ways that the label area the surface area has to different proportionality than what's claimed so that's where the proportionality error in claim construction comes into play if the issue of the broken lines then perhaps i can shift to the primary reference is we have clear black letter law broken lines are not to be considered when you're considering that the boundary is the scope of the claim in the m p p and both of these patterns have an express disclaimer confirming that so the public is on notice that what the public has been and has been told is that the broken lines are there to show environmental context to show that this is a design that's used in gravity feed dispensers but you're not supposed to read the broken lines to define claims w feature so as i understand your are going looking for example at that what we've shown on page eleven the claim design would have to include at least what's shown there as a surface area but it's not limited to that so as long as that part of the surface area is in there it can extend to either side b i don't know i don't i don't know if that's right when i look at m e p fifteen zero three point zero two number three applicant may choose to find the bell's of a claim designed with broken lines and the boundary does not exist in reality in the article embodying the desire to be understood to claim design extends to the boundary but does not include the bell i haven't seen you argue i haven't actually seen you raise any argument or case to the contrary if so if you look at page twenty nine of our opening brief your honor reckon persuading that same section that it's an unclaimed subject matter may be shown in broken lines for the purpose of illustrating the in the environment in which the article embodying the design is used unclaimed subject matter must be described as forming no part of the claim design or a specified embodiment thereof and again the use of broken lines indicates that the environmental structure depicted in broken lines forms no part of the design and is not indicate the relevant important i guess i'm still struggling with how on appendix page sixty six what the board colored in blue and what is colored in blue and least in the portion that we have in front of us isn't the claim design you're saying that's not a claim designed the board got it wrong to the extent that they found it that was the claim decide it was so not not your honour's of the blue does show what's claimed i think what we show on page eleven of our brief more clearly separates out more clearly takes the broken lines out of what's been shown so you can focus on just what's actually claimed what's shown on page eleven reflects the blue that shown on appendix sixty six it just takes that the broken lines out so you can focus specifically on what's surface over a can that the that that's a design that's used in the field of gravity feed dispensers to the board says it's proper to ignore the broken lines too and start to ignore the broken lines so that the broken lines provide environmental context they show you  are wrong so when you look at the words actual construction on page sixty seven your honor that was the board's construction right the board's construction reads into reads from the broken lines proportion dispenser was different and how the board had construed the proportionality of the claim designs so if you take proportionality out and we argue that proportionality should not have been part of that plane construction that the claim designs do not claim a particular relative wi of label area to can a particular relative height of label area to can a particular shape of label area if you take all of that out then the boards distinguishing of samways has to be reviewed but only if we take all th feed dispensers would understand lin's to cheat sheet what support do you have for this idea that if you take away the broken lines and have to it if exclude that that portion could go on forever i'm in any particular direction to disclose the environment relating to the claim design and to define the battle lines of the clay structure that is not part of the claimed design but is considered necessary to show the environment in which the designs associated may also be written and draw may may be represented in drawings by broken lines this includes any portion of article in which the design is embodied or applied to that's not considered part of the claimed design so i guess when i read that i understand the broken lines can also define the bounds of the claim that shaded part in between it can define the boundaries of what that shape of part is so i think understanding that m p v section because that's how the p understood its own m p b section two so how am i misunderstanding that i'm so broken lines tired of this isn't a gravity feed dispenser we couldn't take that design and apply as i know but i think the broken lines in this context where you have a shaded region  clearly part of the design provide the boundaries of the claimed area and if i think that i think they've got the spatial relations right and i think that that's a fair reading of that m p p section that i just read and given that it's their own m p e p and they think so too i don't think you have me on this and i understand your honor so again that's that's our take on what the m v p says it's a public notice requirement the public looking at a claim design is going to look at it and understand the broken lines form no part of claim scope so they're going to look at what's actually claimed in something other than broken lines which is shown here in solid lines and much notice to the shaded part is part of what's claimed you know you don't dispute that we shaded i'm sorry the shade lines shaded part the shaded the label part the label goes you don't dispute that that is part of the claim design correct because there are shading lines there to show some solid surface we agree that there is a solid surface claim there and you can tell it's a solid serving of design pattern is because the broken lines are there you have no but design look can i ask you i guess going back to just the discussion and having an impact in this instance what would have been the difference dash lines have to have some difference then a straight line with no dash claimed part if sixty six so it's just for me and i'm sort of baffled what what exactly given that all the dotted line stuff on page eight sixty six you're sending food it which includes the roller coaster looking way in which it extends back beyond the be the primary reference at all can even be the primary reference can't be a reference used in the obvious analysis because this sign despite the fact that i'm struggling to see any difference at all between these things you're telling dispenser doesn't necessarily include the objects which are being dispensed from it so i'm just completely confused about how the key end is part of your design i mean you're claiming a gravity feed dispensary dispenser that's like went ok so suppose somebody covers you know we get a license and patents on bottles like say fantastic or knowing what you spray bottles that shape of the design they're not claiming the fluid inside the design they're claiming the campbell's soup can on the left and then you've got these very large cans that are the jumbo sized on the other side so right what's and isn't contemplated to at least the roughly skilled of just  lines everything you can claim an area within a boundary and the that claims the area within the boundary and the that that area has its shape and size and and relative position and all those things which was a if we started this is nothing and here's our design and we put limits in this which continue and winter comes in here and the board said it doesn't come close enough because it doesn't have a hand at all and you can't tell what size you speed that's not right because it has to function in the system it rather sniffs so it's maybe there can be some variation in care in size but it still has to work in the dispenser you can't have a can that's twice as wide as t you're saying we claim the area within the palm tree that's i am very confused about this claimed unclaimed are dotted lines but i think the board cetera i think someone is sa forms no part of the claimed design is that a correct statement that the unclaimed bond reforms no part of the claim design and if so how can you be claiming an area well he went way over so we'll give you a few more minutes only if you need it thank you i'll nevertheless try to keep it brief i'm judge moore if you wanted to see be fixed or six patton and lynn side by side that's on page thirty five of our blueberry gave it to me after all we did  lin's over that same illustration we were looking at before with the clip with the claimed area shown in blue briefly and again i think this is a point that you were going over with with counsel our expert certainly did not say it's almost impossible to tell what side can go in there we corrected that mis characterization of the record at pages fourteen to sixteen of our reply brief what is this whole thing what am i missing how in the design patent for a display device does does your showing the can become the art that gets you over the prior art linson didn't show the can you do it will is clearly use the cat has to use a canopy it's absurd to think there's no can being used in that display but this isn't a patent although i guess technically it's do what is in the picture but the patent purports to be a display how come that can't makes all the difference i'm just baffled i don't maybe i don't understand design that mom just struggled with how the thing inside the product they're claiming is so we're with you on that your honor but so i think what would is helpful here is to step back a bit because i think where the board went wrong in this primary reference analysis is it is it applied an overly narrow and restrictive notion of that test which is not the test is for so if you go back and you look at emory rosen or in ray borden with the jennings case the point there is that the reason that we have this primary reference test is that the court has found that up what you can't do is find obviousness of a design patent based on selecting each design characteristic feature from a different piece of prior and just assembling them to come up with an article that's similar jennings is look you have to start with something you have to have a fair starting point a reference that's a fair starting from which you decide whether the interchange of design characteristics is fair for me i certainly don't think it's hindsight all we're go is the whole point of the thing exactly right so and sam way similarly i'll just touch on that and then i'll and i'll sit down samways again as a reference when you read sam wait as a whole which were required to do samways teaches dispenser think handouts and do it for me i mean what about just the size of the label being slightly different i mean it's they're both they're both right there what about the is there anything about the label in your honor the the proportionality things that we take issue with in the in the claim construction really don't matter for lens for the reasons that you're saying that lindsay even has that same proportionality so for samways i think i'm just i'm close on saying again you're you need to apply the primary reference to it's a common sense test it's a tool oh i want are field brief here we were not required to seek reconsideration at the board level before doing thank you thank you both sides you're not going anywhere i guess