key aspect of it is that it is a handheld controller in the video game industry there are roughly two types of control there is a tare type machine that you can walk up to put your hands on controls and control it but you don't hold it in your hands and you don't walk away with it and you can't move around with it you move to it it is ordered typically by the floor but it could be a table and you play with it with your hands and that's how that up that you can't move around with if if if you can move around and put part of it between your legs why doesn't that satisfy that distinction but you can't you can't move around with it you you put it between your legs to anchor it you you essentially become part of the seat and the floor and your legs clamp on it so that it can't move and in fact with respect to the saki reference and the steering wheel that it is it is meant to mimic an actual steering wheel in a car such that the the base of the whole thing is fixed so that you can turn the wheel and by the by doing that give it imports the base has to be fixed in order for it to work in that faction if it was a handheld controller and you turned it the whole thing would turn and you wouldn't have the rotational aspect that the tow saki reference relies on and it is a natural steering wheel and it works just like the one in your car except for it sends an electronic signal to it again as opposed to driving a car but i think it's a sack the steering wheel turn without it being anchored there's no evidence of that and i don't believe it does no so what's the best support in your own in the claims in the summary of the invention as being a handheld controller and that means in the are a controller that you hold in your hands as i would as i was explained before there is the fixed car and there's the handle kind in there but it's not necessarily restricted to a control or that doesn't have a father support well we got into this discussion before the board because they said well what about if you have a controller at best buy and it's it's attached to a wall so that you won't steal it and it was asked whether that would still be a handheld controller and i think that that sort of twists twist the invention twist the claim language and twist the inquiry inquiry is whether the thing whether you bolted it to the wall or not is a hand held controller the focus of the claim the focus of the entire invention is all about the controls and the placement of various controls on the front and the fac thrust of the inventions here either the controller itself is small large attached not attached as it seems to me sort of a have him soling out one of the figures in the patents but it shows the controller in the hands of a user the size in the shape of the importance of your invention is not to move from those old arcade style games that are in a big box on the floor to a handheld controller you've added new buttons and new capacity so even if it's a song for me it's a completely handheld it teaches what we're concerned about what's being held by the hand in the use why isn't that good enough well i think i think what the board says was it can have support other than the hands and that essentially visser it's the whole handheld limitation if we accept that argument there is no handheld limitation aspect runs through the claims because it talks about positioning with respect to your finger sure but that goes i think to what i was talking about in the sense that it's talking about the controls being the controller itself being held by the hands in the various places where you can have buttons and stuff if you read every time or at least what i do where they're talking about being held in the hand it's it's followed by positioning on her fingers or things like that and that's what we're looking at is whether this controller whether the controls are all in the hands as opposed to some other place means arcade games cut off if they're driving games or you know all other kinds of things a well in the challenges are different when you have a handheld controller because your fingers have to be in the correct place you don't have the luxury of letting go and touching well while something else supports the controller it's  meant to be movable it's meant to be positioned such that your hands crew of around it unlike other controllers and that you can move around and play a game that that they say you have in that handheld controller that has an outer case with a front and a bat so that's the front and the back of the outer case and then the controls are on the back in the back is a reference back to the e bases which is the back of the outer case again tall saki doesn't have can if even if it has steering wheel controls it doesn't have controls on the back of the case if we were to say the whole thing satisfied the limitation of being a handheld controller the controls are not on the back of the outer case of to socket if anything they're inside the steering wheel and you can actually access them from the back but they're not on the back and they're certainly not on the back of the outer case which would be where your knees are when it's in the when it's locked between your knees on and the question you raise the obviousness finding by the board was based on the assertion of and right and right in combination with  and right was used for the independent claim one for all of the limitations so that would include everything except for the length and it said that toe saki satisfied the length requirements because then right just has a little hard on the back they're described as mode button so you can imagine these are not firing buttons they're you know mode they are mode b they're there they're like i said it so what busy was said by the petitioner was that toe to toe sakis extra long paddles could be used instead of these mode buttons the problem was that they didn't say anything about flexibility which was a key limitation in the claims that the controls had to have an inherent flexibility the reason for that is you rapid fire with your fingers on the back of the controller and they flutter around a switch that you just push that's hard doesn't do that and the argument that in their petition they argued for certain construction you had to get from the board instituted they disagreed with the petition construction they i don't know if they agreed with yours or they came up with their own but after that since they had argued under construction over there was rejected they came forth with the new are admittedly a new argument i think based upon the same hierarchy references for why they want even under the new construction why isn't that principle well i think even that is a stretch if you look at their petition they did talk about the flexibility of saki as your honor just question they didn't talk about that but because they argued that because it was called in her lee resilient and flexible that those met exactly the same thing in the board room to be two different limiting terms they said that with respect to and right when they were dealing with of course the board's determination for the group one claims that they were anticipated by psyching is supported by substantial evidence and should be affirmed likewise the board's  obviousness determination with their spec to the group to claims that its findings underlying obviousness were were supported by substantial evidence and its legal conclusion as to obviousness was correct as a matter of law and that all should be can it's what matters as are all the the limitations of the body of the claim that we don't disagree that there's a hand held requirement with respect to claim one of the five dollars to five dollars patent the claim one of the seven  patent resides in video a video game controller and it doesn't refer and has handles were cited in the claim but it never has it doesn't have the same hand type structure and of what's in the five the five dollars to five  nonetheless we each of the limitations of that are recited in those claims are met by by to psyche and there is no additional requirement that somehow the device itself must be  the in the group three claims where we think that there was no out of the group three claims you lost or who are we did lose on the group three so i don't argue those yeah i mean we can get back to the ok i know those are overlapping but if we're just dealing with group one in group t all of that group one claims either it covers more of the feel good but it still doesn't cover everything that's that's correct although we valve did a surge at the board that that the same claims that were so sure yes you're ok so isn't wasn't it improper for the board to rely on comprising with respect to the issue of hand held well i think what's claimed is is thus it's the structural limitations of the claim so the board said that the control board said that the language of claimed one in twenty requires a controller to be hand held in to have a particular shape that's permitting the the the user's help so it needs to be held my hand an operable so held for the for what is recited in the in the claims if there is an other structure that's added and suddenly a steering wheel in a car doesn't become not handheld not hand held by some by one's grips because it's also connected to a chassis so where the issue of portability and movability is not something that was that this requirement of a cl three claims yes i mean i'm not unsympathetic that you've got a new claim construction and you should get a reply and of work to consider although when i think about it more it seems to me like you said another theory  let me just get it hypothetically because i don't want to have to read that one reference shows these two things another reference has a rd and based upon our current instruction and the board comes in and with the new clean construction and and you say well basically get a new clean construction we're going to switch the references around we're going to use the same reference as we're going to use them in ways that we didn't institute or we didn't ask for institution is that permissible it's almost to me that seems like the same way as saying if you get a new clean construction where your references don't provide the answer you get a say well this other reference we didn't cite it off would provide an answer and that clearly would be p and so that's almost like it seems like you're bringing in a new reference for the point even though the oculus relied on for something else if you were going to a different part of it and write that showed result flexibility to now would seem perfectly permissible but why is adding the group three claims one is is that the the we believe that the claim construction of flexible was was incorrect now in terms of the you know why would it be ok under because the nd position which is that the court erred in its the board erred in its determination of obviousness based on on all the findings that were in the record so we've got there's no there's no real dispute about the scope and content of the prior art so no real dispute about the differences between the prior art and the claimed invention nor the level of skill in the art that we were talking about is putting aside whether or not your your argument was even timely we would have to to overrule the board's conclusion that know this is one of those rare circumstances what we're talking about the only difference we're talking about is whether it is whether these along needed members would be considered flexible flexible or made a flexible material under the board's construction been a while since i sat in the center i'm looking at the wrong because that means it's me with respect to the definitions proposed by the petitioner in the petition for flexible there wasn't any what the petitioner did with respect to tell saki when it charted to saki for anticipation it said saki expressly describes a situation where the ship clovers are resilient and flexible and then it quotes in the contemplate that flexible meant that you had to have some sort of defamation it was only when it went to an right which obviously did not have that where it sort of closed its eyes and says well and right it's flexible because it moves you can push it over here obviously that's not flexible that reads flexible right out and out the board's conclusion that that you've got two different concepts here  are resilient and flexible and and aforethought they have to mean something different they actually do mean something different and i agree with the board's construction the board said that there's inherent characteristics of this lever and essentially you have to be able to d all under any construction that can be put forth with a straight face that has anything to do with flexing it was only because of that that they took issue with the board because it would read out how they were trying to rely on resiliency and flexibility are it on clay is what i'm what i'm saying is they argued it discloses flexibility in the petition they knew it was a requirement they were required to set forth a claim construction for this term they didn't if they did they acknowledge that it had to be deformable so they this isn't something new that happened because the board sprang it on them they had the initial burden they satisfied with the or attempted to by saying so saki was elastic formal it's only an issue with respect to their other reference that they're trying to pretend it didn't or had flexibility when they know it didn't have any flexibility also they didn't have  well i don't know there's a different standard in district court for among other things but in this case in this i p r they specifically stated that iron bergen their patent owner's response to meet their reply to our patent owner response they say that petitioner continues to rule lie upon the structure of and writes modes which is themselves and uses to saki only for the suggestion to make those switches longer they disclaimed any reliance on these these very elements of the saki that we're now discussing they said it in response to arguments that we were making they disclaimed any reliance on that also they had an obviousness argument based on false saki that the board didn't institute on they were required under this court's rules and precedent i believe after s a s came down to ask for re man back down to have those why don't you just that last one why do you think you have an obligation to report to to consider the things that they did not institute on under as a i mean you're basically saying well we didn't go back and say after as they asked you needed to institute on everything but we're allowed to argue it anyway actually that's well that's not what i don't believe that's what we're saying so although well you're as the flexibility thing but that's not the way i read this both grounds for invalidity after us yes it would have been required to do that but at this point i think you're way too late and i understand your question your honor i disagree in this in this respect while while the the grounds that were on which the board did not specifically institute that it is dressed and did not institute it the anticipate the obviousness based on to psyche alone was asserted in the alternative to anticipation so should this court decide that that now that's a different ground that i mean you've got anticipation based upon to saki and you've got obviousness based on society there is no discussion whatsoever of obviousness based on his akio i think the proper relief in this instance would be if if if for some reason the court would find that that the that anticipation the group one claim shouldn't be a firm then it would be to to further those those specific claims made turned briefly to thirty seconds thirty seconds ok just where do you think that there was that the board's claim construction with with respect to the term all was was an reasonable one it was inconsistent with this with the specification or relied on a dictionary definition for flexible that was inconsistent with the intrinsic evidence if it had correctly construed flexible i t should have considered it to mean able to be moved to a biased position by a user's finger there that is so by limiting it to being just capable to be bender flex of the board xclu but we think what about them the point that it says inherently resilient and flexible are you saying that we're not supposed to assume that those are two different than what you think they are and they're there pointed out in the actually in th the ease of movement ease of movement to a vice position with the user's fingers the resilience it deals with with the more with the tendency of the longer to member to be able to return to a bias position those are two different