that claimed twenty four the navel the only question is whether it's unable for its full scope which of course would also include other types of motion sensors such as accelerometers and gyroscopes not to answer that question we have to go back to march of two thousand and three which is the effect the filing date of the seven for to happen the question of the precise question has to be answered is whether a person of ordinary skill in the art at that time having the seven four two pattern as a guide and importantly with full knowledge of all the prior art that came before would have been able to practise the full scope claimed twenty four without undue experimentation now the date is critically important because the commission relied very heavily on the testimony of persons working years before that date for instance or relied heavily on the work of mr holt in two thousand and three years before the filing date as evidence of on the experimentation but all of mr holt work would have been known to a person of ordinary skill in the art because it was prior art in two thousand and three when the pat  at the hearing so we don't know what they might have thought as to whether or not this experimentation was undue the other was a point i ducked an actress she was able even seven years prior to our filing date long before the patents filed i was actually able to build embodiment that worked in less than two months but as a matter of law it's improper for the commission to have relied on the testimony of people working in the art years before the claimed invention because enablement have to be measured at the time  the claimed invention not seven years prior not three years prior and as you know in many technologies even three years can be a long time and i remind the court the seven years ago we didn't have i phones so things changed quite rapidly now the fact is that no one in this case can dispute five and his patent discloses how to do it with multiple different types of motion sensors including accelerometers sensors gyro sensors and other sensors after that we have references like goshi niddah glynn and many many others not to mention the work of dr naqvi mr hope all of that would have been known to the person of ordinary skill in the art in march of two thousand and three and that's why intend those expert was forced to admit that the mark that the art at that time was rich and that the use of  a handheld game controller was well known but given that undisputed fact and that is not a disputed fact given that this is undisputed fact this case fall squarely squarely in the spectra physics line of cases which says that a patent he need not disclose motion and a handheld controller was entirely predictable because it had already been done many times by many people prior to two thousand and three now the kitchen commission recognized that back sort of acknowledge that yes the art was well known at the time but if you try things that the enablement is limited to those motion sensors that were known as of two thousand and three no your honor so so you it enabled motion sensors even if those motion tensors had not to certainly a certain type of principle a certain type of sensor you mentioned other sensors but if someone comes up with a much more sophisticated sensor you you have laid claim to that ts that don't exist at the time that invent are meant to later if not then it will be a very simple thing ever as technology evolves over the course of fifteen to twenty years many many claims would fall by the wayside something as simple as a fashion or be a difference between fashion there and something like a mode of propulsion if you claim a mode of propulsion in your claims and you say in you you enable a gasoline engine have you claimed everything claim that you enabled everything that falls within the category you just described i think it's going textual i think it depends on the type of claim that you're looking at and the relative importance and position of after a limitation i can certainly imagine a claim directed to a very complex system emotive repulsion is just one small element of that and not a particularly central element to the claim and then that case i don't see why mode propulsion wouldn't cover newly discovered environments but again i think we're getting far afield is that not at issue here that not at issue here is that late the claim that you have doesn't just talk about using sensors it talks about how they operate together and doesn't that change your  most in sensor arrangement motion sensors at the tx one type of motion and a base section that can detect another type of motion with another arrangement of sensors and the the referral the sensors in that claim are generic this is not a situation for instance like automotive technologies where the claim was actually directed to a novel type of sensor that didn't exist in the ark here the commission specifically pointed to the fact that they found that it was not clear from the from operating at the same time it's how they work yes your honor first of all the commission there was quoting from the patent office reasons for allowance and the patent office was basically stating that one of the reasons for allowance and i w important reason for allowance was the modular feature and how do we know that because the prior art already had motion sensitive devices i had devices like goshi that had multiple motion sensors that could sense motion in multiple directions go she talked three or more acceler each one of which is a motion sensor so upright are already taught motion sensors multiple motion sensors working together to detect multiple motions that can't be the point of novelty of the claim what was not on the plane was this idea of modularly connecting building a controller where you could at excuse me add additional motion sense if you believe that doesn't apply to nine seventeen right that's not you're actually correct or are i'm trying to focus my argument today on the on seven for change any there's a considerable difference in the strength of the filed our patent application they filed their own patent application for a modular motion sensitive controller and by the way that application listed five of their top engineers including the head of their are indeed division and they told the patent office at that time eighteen months after our patent was filed that the concept of a modular motion sensitive controller wasn't a significant advance meant in the art of video game controllers and it's also worth noting that nintendo throughout this investigation was not able to come up with a single anticipation weapons against game twenty four not a single one and it wasn't a lack of motion sensing references in the art the art is replete with motion sensing references and they asserted many of those references against us including but not limited to sado goshi holt niddah glen lapsed and many many others up the work contender was unable to find in the arc throughout this entire investigation was the concept of a modular motion sensitive controller of the concept that they themselves thought was so novel that they filed their own patent application on it in one thousand excuse me in two thousand and and so this case is not like for instance automotive technologies where the point of novelty is the very thing that we're trying to enable by going to the prior art this is a combination claim with many many many limitations just one of which is the by the pat that's a quote from the commission's decision a page a sixty seven but claim one of the seven four two patent which is our domestic industry claim specifically recites interactive play environment actually recited twice once in the preamble and once in the body of the claim where it makes clear that the claim to one has to be configured to to work with an interactive play environment now the commission said those are just statements of intended use i disagree that at least the they've been in the body of the claim is a statement of intent to  positive claim limitation has to be satisfied in order for the claim to be satisfied but regardless even if those are mere statements of intended use as the commission said they are highly relevant to the domestic industry inquiry it certainly seems that the commission tried to give you honor i would disagree with that that's not exactly what happened we presented our evidence at the at the hearing the evidence consisted of our witnesses the spreadsheets of all the financial information intended didn't cross examine any of our witnesses neither did the commission all the evidence just came in it wasn't until eight months later and i months later when we got the initial determination and by the way the staff the o u i i supported our position and so everything looked like it was not going to be a disputed issue nobody was even cross examining our witnesses on this issue we get to the initial determination and suddenly the ale j says there's no domestic industry was a complete and utter surprise that even though you i i the staff said there was a domestic industry there was a prize or was it was a surprise to the staff at that point the records closed we couldn't put in new evidence nobody asked us for new evidence you know the can the spreadsheets say what they say our witnesses said what they said and by the way there was absolutely no dispute i think there was some mud in the in the record about this but there's no dispute that all of our expenses and all of our investment except for the want were made in the united states it was really just a question of granularity did we provide a finally granulated up spreadsheet but there's no question that all of the expenses and so for instance i would point to a thirteen sixty two which is the testimony of mr snyder and he was asked about the components of magic quest and he explained that magic quest includes an infrastructure portion and a and the want and infrastructure portion includes the physical space the magic with the facts the back end computer equipment the software and all the wiring and other infrastructure to make the system operates that includes the effects and the circuit boards and software in the wiring everything with the exception of the wand and then he said the want if you go to question one fifty nine they ask where the components are magic was manufactured and he says the infrastructure portion of the game which is all of that stuff i just mentioned is manufactured entirely in the united states either in our fabrication facility in oregon or onsite at or our previous location of florida or the onsite location at the magic or society which is in south carolina so there's no question that all of those millions and millions of dollars that we invest in to build that game including the back end software including the circuitry inside this effect was built in the united states so yes there's a question of whether we are partitioned out or how to find finally enough great granulated spreadsheet but this case as pulling within the spectra physics mind of cases commissions admits that there are two separate lines of cases there are there's the corpus of the score it's actually for concerning section one twelve there are some cases that say that it's ok to admit what's well known in the art but you don't want to include production details if that's true it's quite curious that the patents and shoot how production details put was actually known to these inventors as far as the parts that were going to be procured and really  n fine grained detail that there's no there's no dispute that a that the inventors here did not know how to practice before range of the invention and i think it can be agreed that all that the inventors were trying to do is to one twelve problems independent claims fourteen and fifty in the seven forty two patent cover tilt sensors with on off states or active inactive states which certainly more closely correspond to the actual invention here with respect to them estrich industry which was the commission reasonably construed the statutory language the domestic industry must exist with respect to the protected articles  protected arkell's here the point i want and this is discussed at the commission opinion or pages a sixty one a sixty three an a seventy two in trying to indulge or entertain creative kingdoms arguments parts of also be associated or attributed to being with respect to the articles how would you characterize give me the best characterization you can give of the scope of the certain other articles that are related  context is being essential or central to the functioning of the long run advance as an economic matter rather than economic matter i mean perhaps it could be put as a statutory matter with respect to the articles the previous subsection of section three thirty seven as i think relating to the articles or the statute requires a connection with the articles in most cases it's expenditure on the article directly that that is sufficient  hypothetical what if what if general motors on the patent on the engine of lasers but it has those winchell waivers manufactured somewhere else and they just it shipped in and then they're stuck on a car and they're there you know fully  contained all they have to do is put on the car does it mean that general motors doesn't have a domestic industry because it's and so much expense it's a little amount of money to attach them to the car was depends on what the nature of the article is in the commission has to start with this and that's the floppy disk drives cases and other cases involving components we could look for instance whether the wiper blades are sold in the marketplace discretely including in the minute or so that i heard you  e it doesn't depend in the particular context in article well what i what i was trying to say is that we're focused on the statute and it seems that there are two separate questions here the first is going to be one by itself would not be economically viable absent a setting such as that why why not include those running if you like as are related to our what's the statutory language  repair of the actual boxes and those domestic activities we don't have a fall back argument from from c k here and i with my remaining minute i just like to note that  today and we believe each individual individual species is supported by substantial evidence and any one of which would support that this decision of the i p c that there's no finding a violation under section three three so with that i want to briefly just focus on the written description issues and really the section one twelve lack of adequate disclosure in the specification for the seven for you think it's more of a written description problem that enables both you are both and how would you tease apart the two i know sometimes they overlap nature of this case in the in the posture of this case when substantial evidence i think the enablement may be the stronger because the credibility determinations in the factual if they're factual distinctions will there isn't conflict then the tie goes  to the to the p c but i think the very strong doctrines and how i would tease that out the answer the first part of your question this court has been very clear particularly in areas and in a number of different cases are the hallmarks of possession for written description is disclosure within the four corners of the specification and this court is unclear in terms of written description in an able man you just can't rely upon the prior art to say this is my unable in disclosure this is margo you must of the issue and it's we had a disclosure here that in the specification that talked about mechanical valse which is detailed detailed figures we had detailed explanation and in contrast we had a laundry list gyroscopes in the in the ark and number two he also specifically details and i think was fifty or sixty pages of written testimony about why they were it would be an do experimentation to put in simply put in the  gyroscopes in this mechanical balls which device and also why the he thought the inventors were in possession and we know for a fact your honor that these inventors were not in possession they ask you to disregard their testimony for written description we know they were in fact not in possession of the claims with a mechanic with with the electronic sensors and accelerometers and gyroscopes and this is an important point because as the i t c found in their decision is supported by substantial evidence that manipulation that might have taken him nine months it might take me nineteen years to do it but if in fact it is a message with if there is a message of carrying it out he didn't say that the specific and i think this is important point these specific configurations that they're claiming and claim twenty four that modular sensors in the sensors in the in the vase and they each have to react to a different motion in the in the broadest claim is limited to a modular attachment you know it said not to the details you just resize will the claim itself talks about particular motions you are moving shaking twisting stroking and talk about two configurations centers one of the base and one of the modular portion and exhilarate portion and that they have to attach yes and it's very important around or that down below and i think this is a critical point down below they argue that these motion sensor limitation that included the motion sensors so now they're pivoting embracing the prior art on appeal because obvious is known obviousness is no longer in the case we lost that down below but the critical point was there was the specific configurations of of motion sensors in the claim was not found by the commission of the obvious they've never braced them these particular limitations as being in the prior art and being enabling for example dr vote check never set well goshi and  my enabling disclosures they are the ones that once filled in europe looked at and knowing that i work would be able to sit there and practice this claim without undue experimentation he never said dr polish or expert testified in detail about what was necessary what would be may not be the whole time i just have a couple points of your honors the first is on domestic industry just rice and i think you hit the nail on the head none of these investments would have been made but for the want the magic quest rely on those specifically for the four for the investments we did point out that our largest licensee great with resorts has invested quite heavily a lot of many millions of dollars in building  sicilies but we're content to rely on just the wholly owned and operated magic bus attraction in myrtle beach for our domestic industry because i think the investment there are substantial and the entire facility the only thing you do there is play magic quest if we didn't have the want that facility never would have been built none of those investments would have made none of the people who are employed there with we have jobs and so this is a classic domestic industry in american industry built around the patented technology and i want to point out that the stat and you again you alluded to you says with respect to oh that doesn't mean it has to be that the pants in technology and in this case this this quarter last year in a digital interpreted with respect to the mean related to and so certainly the magic quest attraction is related to the patented one because it wouldn't exist but for the one and that's an undisputed fact and in fact it's even a footnote in the commission's decision well at very quickly how much of what the commission did is factual and how respect there seems to be honestly an arbitrary and capricious interpretation of that standard i didn't hear a definition of that standard we challenge them in our brief he said you misinterpret of those words i didn't hear anything from the i c c in their briefs or here today as to what the actual interpretation of those words are the standard that they use is i know it when i see it and every case seems to come out differently our case is very clearly with respect to the patented technology because none of those investments would have been made