the issues on appeal or whether the board aired in affirming examiners finding that the claims in the one eight nine patent were obvious over frank andersen and volvo references the second error addressed on appeal is whether the board erred in affirming the examiner finding that multiple claims in the five seven five patent were obvious over frank horn and vocal laughs the issue raised on appeal was whether the board erred in finding that the objective evidence thoroughly briefed but i wanted to summarize three of them for you beginning of this argument first that is not disputed but the liberal claim construction policy that usually governs prosecution and reexamination proceedings does not apply in this an art that it clearly an applicable that's the vote for the board reviewed our kids and place them or similar to that that it already reviewed during the prosecution process and that's the frank reference and went on to a the examiners finding where the examiner meet an about face on the scope of that art and whether it was swept into the terms of the patent the second primary or committed by the board or that in either of the decisions are based on substantial evidence rather almost every one of the board's factual findings mimic the examiner there are dozens of references in the decisions with this comment expired thus the more liberal version of claim construction was appropriate but once the board had the patents in front of it for the re exam the patent had expired triggering a more stringent claim construction policy again no one disputes that that more stringent claim construction policy should be applied but in fact it was not applied under either standard of claim construction there are simply too many gaps between the salient claim terms in the one eight nine and five seven five patents on the one hand and the prior art on the other i'll discuss these gaps in a minute but they prevent either of the four decisions under review here from being based on substantial evidence third primary care of like to point out for the court this morning is related to the lack of factual underpinnings and it is the erroneous reliance by the examiner on the unspecified person of ordinary skill in the art hour for it to this person at times as the posy to both the examiner and the board repeatedly fill the gaps between the prior art and the patent claims by finding that the gap would have been obvious to the busy to and filled by that display two things can occur under these patents the first is the user attract mode which attracts the user to come to the jukebox to play on and it does that by flashing a lie scrolling text playing information playing videos related to the music on that you know this going back to some of my earlier days when you know we should have two boxes over the wizard and those things are settled for days we have flashing lights and once in a while it's just they're kind of dark and also the star flashing and you know you kind of look over there to see what what that was would you say that those flashing lights were also a user attract mode you could call them a user attract mode but i don't think that's what contemplated under these patents these patents were in development from those older systems your honor about the vogel patent which which had a suitable periodically delivered extorting passer by to make a purchase that's one that is one section in the vocal patent that refers to the court to line granting nation and one display can run continuously while in the other display the information relating to the song that you're listening to on the old desk is just played so you're saying that your invention had one display whereas vogel had two but essentially they did the same thing it's very important for the court to understand that the claims terms require that the display is adapted to be able one display adapted to be able to present both the user attractive information and the song information in the five seven five patent in particular that feeding in the central management system to these huge boxes in a single display of all of this information in a coordinated fashion never at the same time is what is unique and claimed in the to the primary construction by the board where it expanded and should have used a more narrow construction principles applicable under half motoring as for this user attractive limitation figure five both of the patents as well as the specification columns six lines thirty nine three fifty six clearly establish a single display through which the user attract data is fed only when the song identity data is not being presented to different courts have issued claim constructions where that construction was used use or extract information coming in only when the song identity information is not being displayed those of skill only or would not understand that the frank reference in light of oval suggests a display adapted to show both user attracted and the song identity the patter when the machine is playing so by definition that patter that display has not been adapted to show the patter and the song identity information at different times it's been presented to show the pattern or at all times there's been no adaptation of a single device a single display to show use or track data at one time and song identity information at another in the argument before the  board the arachnid attorneys liken this to watching a football game and having someone talk to you the entire time or walking through an airport and having a coke machine tell you to come by coke that it's that double display system in vocal on the information through that same system at a different time would not go back and look at the vocal disk player and use that to improve on the already digitized frank reference so again what the person skilled in the art would have done with these pieces of art is very important the board and the examiner improperly gap filled with this person skilled in the art and wherever the art wasn't matching up with pattern claims  that would have been obvious to the person skilled in the ar it also must be noted that the vocal patent is directed vending machines the single embodiment relating to jukeboxes is not close to the claim limitation use or attract as that term is properly construed there is no factual underpinning to the conclusion made by the examiner on the board that there could be other environments or vocal that could match more closely the user tracking a limitation contained in the patents that inference upon inference to the claims five and nine for direct communications variable seaboard and the patent office relied on floppy disks as being direct communications between the jukebox and a central management system that is  patently wrong the third error with the one hundred nine is that there is no basis for the purported combination between volatile and frank the five seven five patent relates to the much more complex digital management computer system there is a nerve center in the five seven five patent that's not disclosed in either vocal or frank frank it's like a streaming solution arguments the solicitor commit the nested argument right here the board in the solicitor find that the microcomputer could contain an undisclosed process or ones not disclosed in frank and then they also conclude that that undisclosed processor processor could couldn't for could perform multiple tasks that are nowhere identified and frank again we have layering of inference over inference of the capabilities of frank and just merely saying a he me he me ask and answer that question your honor but what's relevant here are all the functions claimed in the patent the complex song identity information compiled in a song library and a song catalog the sequencing and coordination of the presentation of that song information with the user tracked information and there are three or four other functions that we identify in the breeze that are nowhere disclosed in either frank or vocal so it's that inference after inference appeal also require that the data be compressed the elements and erect its planes are either taught in a prior art or would have been obvious modifications in fact arachnid doesn't solve any problems in the prior art instead arachnid simply filed its patent application at the time that computer implements a jukebox as we're on the cusp of becoming feasible i'd like to talk a little bit about vogel vocal does teach a user attract mode it teaches that messages relating to the musical selections also has another embodiment where it specifically says and i think to train a pointer to this when the machine is idle a suitable message is periodically delivered exhorting passers by to make a purchase and that's invoke a column to beginning at line forty six further vocal doesn't teach you way there's nothing in focal that discourages the use of a single screen for song selection cities  attract counsel has said that there is a claim construction issue here but i think i think there is not a claim construction issue the board construed the claim consistent with what erected asks for that a single display has to has to display both the user attract mode and the song selection so the board did not apply the process reasonable construction here and in from the briefing there was a clean construction issue so that when you look at all these other limitations in the claims i think the slow service package is to stand on its roots and we'd be happy to talk about any particular questions that you have or anything about secondary consideration but i'm going to i'm going to go into each  limitation lest the core question well i have a question turning back to the single display point that mr hankins was talking about what does  right it has a display and it's like a control panel where a person comes along to the keyboard like keys in what they want so that the phone from actor display and then they have a separate display that has the user attract mode which is like a random sequence of kind of the same information the song identity information but it's randomly put out there for people to attract them to the two vocals jukebox urban whatever and you central management system with one display it would have been obvious for a person of ordinary skill in the art to put both of those features on one display and then the the french display i assume this was long in advance of touch screens and the would be surprised if it were if such means that you're probably right your honor at this time of the display so the term display using a pretty right not what we would normally think of you almost all of your rebuttal time but will give you two minutes thank you i appreciate your own vocal in fact as a standalone machine sitting all by itself with a cartoon just shockey and some old records why would a not there is no person still in the ark defined by the patent office there is no person still in the ark defined by the board it's an undefined wizard that's used repeatedly throughout the board determination to gap fill a vocal reference to the frank reference the frank reference again was before the patent office it teaches a dumb central management system one that just feeds video and audio there are substantial developments that were made in the patents beyond frank and certainly them with particular videos that's a five seven five and created a catalog of all that information that flowed from the central nervous system to each of the individual to that is nowhere in frank and in full that