it's exclusively on the purchase of a few us made components particularly when the petitioner is a foreign company without any engineering or research operations in the united states and where the product is protected by the  what's the domestic industry is being protected here i didn't see any argument that there is a lot see a mistake industry in the manufacture and sale of these devices in the united states is the industry the is unclear as to whether that includes downstream companies or downstream vendors i think it's fair to say that the cases show that you since you pliers to perform back to the point in time when when the thirty shows a minute to eliminate a requirement of material it injury under withdrawal injury you you have to find that that there is a u s domestic industr producers shippers like shutter that that have been affected by the unfair trade act but that's no longer required i don't think that's our argument i think our argument is that they complain and it's to show that with  respect to the products protected by the patent there is some of the elements of the statue a b or c the there's going to be some showing that there's a quid man investment that there is planned investment or there's employment of labor capital in the united states with respect to the protective product and here we don't have any evidence at all to have a case as says that exploitation substantial investment in export exploitation of a product is enough that you don't have to little bit confused about the commission's opinion in this case and in particular their focus on a qualitative a valuation they seem to acknowledge that both in terms of sheer dollar value and in terms of percentage of manufacturing costs that the domestic product or domestic component is in the woods of the commission modest they seem to quite clearly not be relying on either a percentage are going to avoid using numbers or or the dollar value either one of which under precedent as i understand it could have satisfied right ten thousand dollars for a twelve thousand dollars product is a substantial investment when no ten thousand dollars for the new i phone would not be a substantial investment because it's all relative and that's what i understand a lot to say but so the commission sort of ran away from the numbers because the numbers what an established a b or c and instead they move towards what it feels very bizarre to me when they say they're going to evaluate the domestic industry according to what they seem to be saying is their qualitative view of how important the component that is produced is the words they use  crucial to the functionality how important that component is regardless of whether that involves a substantial investment plan i've just never seen any opinion that did this right i imagine that there's a power source it's important i imagine that there is a processors it's important there is a few ng so do they mean important in terms of what they sink was the novelty that secured the patent in important in terms of  that your view i mean i don't see how how importance of a particular feature to either the operation or to the patent ability is either a b or c i think that's right your honor and the problem there is  every time the value added you're talking about thirty percent seven percent of the value is equated to the cost or the sales price of the device it's not value added in a qualitative sense of will the device work better or not numbers with regard to old for the industries that are supplying these parts so what your view of the right of the illness is for example if let's assume for purposes of argument that multibillion dollar industry is your argument that when you say there has to be some connection to the statutory category then there would have to be some showing that the amount that was spent for that particular supplier is significant so for example where here is the purchasing of just components for any use that i don't think they best mean equipment if for example they say they're micro two components your argument also seems to be that there needs to be some  the other issue is maybe you can even start very quickly with with the preamble whether it's limiting or not thank you for an hour and i think the preamble is it's not limiting in this case because the evidence that the on about the preamble being used you know prosecution to this english the prior art was based on language that was actually part of the body of the claim at the time those arguments were made so initially they repente had that language as part of single use particularly when you improperly can construe the term in of course to be just quite as i think this has a vacation it's very clear that there's other users of similarly shaped objects that would be in conference by the coins and that a commission practice that deviated from the quantitative analysis and varied into a qualitative analysis for a start there's certainly no cracked no precedent from this court that authorizes that under the language of the statute and secondly percentage that the particular part and feature added to the overall cost of the product that was a value added value and it wasn't some qualitative assassin like i don't even understand how in the world you intend to implement it would be a disaster for you if we were to affirm this way of evaluating this test what mechanism are you going to use to ascertain the critic callously of the particular function which is the basis upon which the commission decided to go against the l j here how how because the commission rejected the percentages in the dollar values so how are you going to evaluate this qualitative critic caligiuri or importance like i said amounts of commission relied on what the l g s terms of the dollar amounts in the critical nature of the products of the commission parroted and accepted the fact findings of the dollar amount and the percentages but the commission absolutely did not embrace that either of those numbers gave rise to a domestic industry under a b or b and commission express they rejected a footnote a city so how how are you now saying contrary to how i read the opinion that it is your view that the commission actually said forgetting every putting all these qualitative things aside even if you disagree with them judge more that nonetheless on these numbers alone the commission's findings there is a does not do that it's cast in terms of percentages of that you added and when you go back and actually look at the underlying documents in that case it is unequivocally clear that it's all about dollars and cents the thirty seven percent issue that made a difference there was the thirty percent seven percent of that that's how many dollars thirty seven percent in terms of dollars is what was added by virtue of the feature so they were still analyzing the overall amount of the investment in terms of real dollars they were you're looking at what this commission report looked at was the nature and significance of the component that was made in the us nothing nature and significance of the activities in the u s you actually parsed out particular component and decided that those components were crucial of the functionality of the device and because they were crucial the functionality the vat was what drove the whole train because you rejected the number  article on the whole actually it's not significant investments in plants and equipment it's not significant to the article but the questions run it with with that broader test you know if against its relative but this commission about to get to rewrite the of any type of activity that we normally see in that the seven case in fact the the producer it is located a brought in all production is conducted abroad so obviously there's a lot of other parts and components s domestic industry i mean the mystic has to mean something an industry it's got to mean something and so what are we going to see next a case where there is no presence whatsoever in the united states no activity there was the components were purchased here in the united states and they were manufactured in the united states the critical components for the up from the article but not by me not on the component of well that's that's what we're talking about i mean percentage of the dollar numbers that are associated with the four elements the parts right a significant piece of that was expended on product that was sold abroad there was no  that you're wrong with that we feel we can consider it notwithstanding the fact you say it's way your main argument is that to do so would be inconsistent with the statutory purpose to honor a point the question was making was that impact on the domestic industry right off if it's infringing the whole idea is that the statute protect the industry from infringing products coming into the united states right about all we read is also promoting domestic statutory can agree ministry and what are we looking at a real looking at the whether or not the ten thousand dollars over three years to a particular person flyers significant to that industry producers of crucial components are the domestic industry but the suppliers to the producers of crucial components are not part of the domestic industry the suppliers to the car to the produce of the article substantial effect right on investment within this industry correct well if there's no injury requirement so shouldn't i be looking at the entire electronics industry or the electronics industry the supply of these that a purchase of ten thousand dollars worth of parts over three year period is significant to the software industry in the united states you know you're on but that's not what the commission has said it looked at domestic  qualitative and you're not going to agree with it you're going to think there are other ways in which you can be qualitative but to the extent quality that the commission has said you know not everything is equal ten thousand dollars for a particular patented product  particular industry might be a lot whereas it's not in another industry a lot of investment you know similarly you know ninety eight percent is a lot even if it's a two dollar product you know it's just it's muck and it doesn't want to focus it's ninety eight percent of the cost of the product it's all here in the domestic industry that's going to be consistent regardless of what number of dollars right it's correct in the commission's qualitative approach that it took is there are  cases aside from mel prophylactics where no to the realities of the marketplace other cases like string musical instruments and printing it imaging devices accidental the reality of the marketplace that's not the same thing as what we're talking about in the current war which is some mister thinking on fox news for intervener standard innovation i'd like to jump right to the significant issue directly i think that starting point here which is important is at the commission recognized there's no definition of significant this provided in the statute so we're very clearly in the chevron step two question so i think that's important to the framework to ask is did the commission is the commission's construction up significant vestment and significant  that these are proxy figures that we know the fact that these components were produced that there must've been labor that was expended on them there was plant there was a quit time that was used for them that follow labor has to be significant right yes your honor but that's a significant statute say that the work significant modifies investments in plant and equipment so how could any analysis of the significance that the commission in its only you saying some part is true the respect with respect to what and we say that our position and this is what the commission adopted is that it's significant with respect and this is from the preamble language above with respect to the articles protected by the patent again it's a longstanding interpretation protected by the patent that would require analyzing what the investment was in the components that are at issue in this case produce domestically versus the other components in the article produced for the patent it wouldn't be earlier in the decision when the court was discussing after market or after production accessories that were added to the twenty vehicles that were issue and shopper the court considered whether or not those accessories were quote a necessary part of the vehicles or if they were  them so in shopper one which was the commission is that she's decided that says that simply has to do with whether those components ought to be included in the later calculation of how much of this was made in the u s versus how the commission's been quite clear that there is a sliding scale that in some cases where there's a point there in this case because i don't see any other cases from the commission where they've done what we are is a victim commission has established this framework in several cases the printing and imaging case recently the milk made it clear that they didn't think the numbers that you what you that's right and i think the qualitative factors were critical to the court's analysis there's there's no way around that here but against what the court did what the commission did and looking to the cost of factors in i think this is the important part of it to technology that would just not like with restrictions obvious yard analogy where there is a power supply and there might be a dozen different manufacturers making identical power supply security components or proprietary technology that are produced only by single companies that are in the united states domestically manufacturing them so again what's critical about as is that these are very specific to contents that were purchased by standard innovation or to be integrated into this product so it's not critical in that sense you have to have a power supply to turn it on it's critical in the sense that this is the best kind of material to make this product work and there's only one manufacturer because they have high proprietary technology that's in the united states that that's the meaning of qualitative here not just doesn't like  right and we concluded that you could not prove it's her and we said well the accessories are designed to enhance the play value to give a qualitative improvement right and we said that's exclude it's that that was not necessary but that would distinguish that from the other three components and we agree that the other three components that are directly tied to the just stick with a business where we're trying to decide whether or not the proper legal test was applied across the board and part of the commission decision turns on having included the bid was right and what i'm saying here is how can you clear the pigments in the light of what we said an interrupt well you don't know what the commission said here was that that the pigments are part of the quantitative analysis because those were purchased and domestic purchases for the qualitative it looks at how important those domestic purchases words are the claim features of the articles protected by the patent and it did say that the pigments assessed less value because those were not directed at the particular patent claims unlike the other business of deciding which of the features in the claim was the one that caused the claim to be allowed or improved the device over the prior art what it is that you want the commission to get in the business of deciding you want one when the commission can find that certain factors are critical to the high value components what you are these are proprietary materials and these are the materials that take the most kinds of research and development because these are novel innovative materials that are being made by us and in now with the commission's going to do is assess whether the components are novel and innovative components as part of the process so i don't see that analysis here i don't see where the commission decided that the components the four components included as the feel like we always have to be trying to be equals thank your honor i really don't feel will be necessary just a quick couple of points we just heard a lot of argument about the components being novel materials are being sold stores are proprietary materials no  material used for all sorts of same the other point is as rain i was asking questions earlier about parts or components versus the overall device would you address that could refresh i mean maybe he'd be better refreshing but i was not what i understood him to be asking was whether or not the fact that it was domestic companies involved only in the manufacture of components which could later used in this product were the domestic industry worthy of protection under the statute is it even possible under the surface so suppose that there were suppose that ninety percent of the parts which represented ninety percent of the cost of the manufacture were each taken from various domestic companies here in the u s with the case the same is this matter of we should look only at the whole notion of waiver issue i think the point that we're trying to make is that when the commission determined that the component purchases on their own are indicative of the stature of such a story factor the commission should that accounted for the fact that only a few of those compliance are manufactured for the product protected by the path and that's what it means and for the product because the proper the product is being important for that product that makes it into the united states to be protected by the pack for example used with respect to a prop they probably are protected by the pattern to be accounted for so only that amount would be indicative of plan equipment or labor to make those components that are relevant to the product protected by the pack if its products are not protected by the patent like court the like in future cases what we'll do is we'll look at the at the situation like this where you have a manufacturer who's offshore and the pan or the pendulum manufacturers offshore and you're saying well in  cells are not covered by the patent so indifferent let me make sure i understand something if your suppose that the patent included as one of its components about every has to have a battery to operate and suppose that any double a battery would work and so they a batteries from a domestic producer of batteries now the batteries work and a million different devices are certainly not made specifically for this device or huge saying that nonetheless the fact that that component was bought right right so taking your samus a little bit further should there be an allocation here for profit general diminished rate of expenses of things of that nature pulled out the that that portion of the purchase price