confusing and in consensus specification for the seven under pat the resolution of these first two issues upon which the questions of infringement and validity term turn on what did the incorporation by reference at column one lines fifty three to fifty four of the seven hundred that is given meaning or alternatively whether the patent fees effort to broaden the claims in the seven hundred application controls let's assume that we were to agree hypothetically that should correct that the specification of the five twenty five is claimed multiple inputs in the report of a single input and of course that was incorporated in the seven hundred specification just from a clean construction standpoint you would seem to be in a situation in which there's an inconsistency between the incorporated material in the specification of the seven hundred  specification of the seven hundred ten is revised as rewritten seems to allow for multiple inputs so under those circumstances wouldn't we look at the specification of the seven hundred rather than the corporate reaching the plane construction determination that you are i don't think so if i take your premise correctly which is the incorporation by reference operates to incorporate that which was in the ninety six application but which is not in two thousand on six degrees of freedom and there is a chang disclaimer there is almost nothing else that's been removed when the truth out now kitchen was filed so the question becomes and this is i think the premise of your question hundred ninety six application is in to the specifications inconsistent with the idea of multiple inputs it's confined to a single input but on the other here in the specification of the seven hundred so it only allows for multiple inputs let's assume we're in that situation what do we do about plane construction when we know the seeming inconsistency i pathetically between the incorporated serial in question if your honor takes your hypothetical what you have is a specification describing a single input number a specification describing multiple input members and a disclaimer  member then you get a narrow claim construction which was urged by nintendo below and there's no infringement you don't turn it to is that you ignore the incorporation by reference of the disclaimer taken out i would say two things one i'm not sure what effect we'd be giving to the incorporation by reference but you then would reach the broader claim interpretation that the court adopted and if you reach that the fact but the question before the court is whether that question of fact could have been decided j m all as a matter of law and to some extent the procedural posterous a little different in power ways which was patent claim provided britain's story as a met in reviewing b j and while determination that is the same discipline that we would urge upon the court and what the court in looking at the jury verdict on its factual example they were trying to figure two that it's important because that is the sample that the plaintiffs relying upon plus gets written descriptions for how can there be written descriptions court for w ninety six application in ninety six application claims had a single input members movable in six degrees of freedom each claims that they rely upon were claims that were added at the same time in the same period of time that the two thousand application was filed the third thing that they will live on is a portion of the specification that to bush to be sure describes joysticks and trackballs in the prior art that are movable and less than six degrees of freedom with six line of later in the specification the specification of specifically says but in this invention we have a single input member the only other two those three references they arrive on the specification the only other two things they rely on that they say would create substantial evidence that the one thousand nine hundred six application satisfied the written given a figure two and asked to comment upon it without the accompanying text and the accompanying text is that which says explicitly the trackball is a single input number movable and six degrees of freedom the second is this he has asked about three sensors and the testimony is to be sure a little confusing and then the whole premise of the questions follows from those we censors were when the description was satisfied if the court adopts a broad claim her protection we would urge that as a matter of all don't most five or six things they say are insufficient to satisfy the written description if the court alternatively decides that the incorporation by reference is fully effective and incorporates all that which is in the ninety six application and in the ninety six application we have twenty four i think your out of this goes to your question about in this example there are twenty four references to single input members movable and six degrees of freedom relative to a reference point on the control all of those are taken out in the two thousand application every example in the ninety six application is a single input number and any fair reading of this patterns would lead to the conclusion that the invention described is this there were input members with multiple inputs there were in two members with a single inputs when you had a single input member and you were trying to have a move in six degrees of freedom you had problems with wires and connections going all over the place and interfering with each other and they were costly mr armstrong claims to have come up with a sensor that will allow you to play and commercially reasonably have a single input six degree of freedom sensor i mean just one more thing about their argument on the written description they also rely upon two earlier paths in the family earlier than the five twenty five and those two patents are not patents from which they've claimed priority and if the court considers them you'll see for good reason in both of those paths to describe controllers moving in six degrees of freedom the language and single input numbers is not there so it's not a coincidence the claims would be different so the is left with a prosecution history that has this chronology claims not referring to a i'm sorry specifications not referring to single input numbers move on sixty minutes of freedom twice in ninety six application intentionally crap to describe an invention which is a six degree of freedom troll or two thousand claims that it to the ninety six application and claim a continuation in part application filed in two thousand eliminating all of those references expanding the specification and then two years later expanding the cl indication that maybe there was no substantial evidence for the support of the twenty one million dollars damage award bush is a possibility it was just a compromised verdict by the jury at that point right you're on it i really what an escape argues is two fundamental things they first say that well you can take the numbers that were on the demonstrative before the jury and you can reverse engineer this number that's about twenty one million dollars you can only reverse engineer if you're going to assume that for every way remote that's paired with a week classic you're going to have seven of remotes for every classic but in order to infringe the pat by their  accusation it's a one on one thing so counting seven is just taking the number trying to reverse engineer back if it's one to one which we suggest is the right is supported by the evidence you would be with at five point four million the only other a sony license but the sony license was a ten million dollars payment for an exclusive license to another cross license who's going back and forth and across licenses including the seven hundred  that lacks a single input member structure to activate sensors and six degrees of freedom before i refer the court to that portion of the specification particularly for the real the real the key question here the miller is the disclaimer of changing criticism of changing in the one thousand nine hundred six application to the question and you're saying we shouldn't make anything out intend from that language is that it refers to figures two through four and pointedly omits figure five which supplements figure two in a way that i'll describe in a moment and second the ellipse conveniently omitted the in this example language clearly indicating that this applicant had another example which is to put the sloth in the patent that does not use the trackball to control six degrees of free seven seventy no i'm sorry that's wrong it isn't the application it's critically important for the court to understand the following textual distinctions the error that nintendo invites this court to fall into in order to understand figure two and figure five and why they disclose and body the last control by the trackball and six degrees of freedom the issue is not whether the element is movable in six degrees of freedom any object that can be held in the hand is movable in six degrees of freedom what the claims of the asserted claims require is that the movable element is restructured to activate sensors so as to achieve movement on the screen in six degrees of free now that in mind let's examine figure two figure two consists of a trap ball surrounded by a collet and as you can see about what's your premise with respect a figure to do we that figure two according to the specification the  hundred six application shows a single input no not figure two but they do say with respect to figures one for that that's a single input yes but figure two if your corner of the court will observe it carefully is not structured so that the trackball and activate sensor one fourteen only about a third of that trackball projects above the collet even in the strained interpretation that intend to advocate but it sounds to me as though you're is used to ignore the pretty clear language here that says  single input member operable in six degrees of freedom supplement that with the discussion the figure five that appears at the top of page eighty seven seventy of the application be desirable that does not bar making the trackball operate six degrees of freedom but clearly the recognition there is that it's not necessary that there is a disclosure combining figure two and figure five which the trackball may not operate and six degrees of what's the difference but let's assume that we reject your point about figure two just hypothetical in that we say ok that they said th for figure five includes the ability to control degrees of freedom by rotating the collet and the language of the application at eighty seven seventy recognizes that although the trackball it's not barred from continuing to be operable and six degrees of freedom that is not mandatory that's what's fact the matter is that the jury heard testimony from mr coach each that in the embodiments that we're looking at here that without the collet the trackball controls less than six degrees of freedom they didn't really seem to address the multiple he did state that if you remove the collatz the track all controls three degrees of freedom less than six dr house of course and escapes expert witness testified to the same effect but what about the inventor's testimony what is it forty five thirty two shot of the answer to the inventor's testimony is quite simple and it's by the standard review and examining an issue for the sufficiency of the evidence in the fifth circuit the analytical approaches to examine the evidence most favorable to the jury verdict to determine if based on that evidence and that evidence alone a reasonable jury could have reached the conclusion that it is that contradictory evidence by the inventor if indeed that's what it is is not part of the analysis the question is this figure two figure five and the rest of what unclaimed instruction would be called the intrinsic evidence coupled with the testimony  to claim construction as well contrary to contend those urgent there was no clear disavowal of subject matter in this case similar for example to the si consider philips the court will recall that in philips every this close and bought used a non ninety degree baffle   in philips the specifications discuss the benefits of using a non ninety degree baffle that in philips prior art was criticized and it was explained that there were advantages of the invention over the prior art because it used non ninety degree baffles and yet this court on bach held that those factors did not rise to the level of a clear disavowal of subject contrast philips and this case for example with the syme it case in that case there are period of statement which the court described as the most important factor in limiting the invention to a single embodiment the statement for adam body months claimed in this invention there a cattle that inside there was the statement that the president invention uses coaxial lumens and of course agree at times inconsistent specification and application this case lacks the kind of categorical statements that the simon court found combined that invention to a single embody now the court has as of course often struggle with this issue and has struggled with that since philips in the safety care case your honor will see there th court was caught up on to define the difference between a pushing force and a pulling force but your honor went to some pains in that decision to point out that that was a case in which there was no implication of a and the issue was that limited to retail consumers or good at the expanded other confidence so once again at the court used matters and including disclaimers in the specification to define that term wholesale importation of a new limitation into the cloth consider again the proper structural analysis here as this court pointed out for example in the used throughout the specification and the application to refer to devices that unquestionably do not have control by a single member and six degrees of chad is described as a control a mouse type device which has control in only three degrees of freedom is described as a control indeed perhaps the most compelling reason is that at mark nintendos council at eight forty one ninety eight agreement but the work controller alone that those not imply or justified the importation of this limitation model you do have other i guess i'll fall back on my first argument which is that the use of the word controller is widely used throughout the specification to refer to things that are clearly not a single input member and if that's going to become important for the court to the seven hundred patents at a fifty forty a is the description of chang as a controller at a deal level and the description at a prosecution history of the patent issue but the prosecution history of the parent and grandparent applications are relevant the client construction completely independent of the written description argument as to how far you can go back for a priority well for a e law in and the circuit is now fairly clearly developed that in claim construction that related patent applications and prosecution histories can be consulted absolutely but where its entirety figure five not a problem at all the patent sense that you should have single input members will pull the six degrees of freedom and you can have addition all buttons controllers there are reasons as we've said in our brief that you might understand why it should be sooner than figure five is left out there your honor because if you look at what's at page eighty seven seven and if we look at let me say these two things if you look at page eighty sensor encoder in communication with track all too well for detecting rotation of the track ball about your axis all that sets your honor is that you're going to have to call it it can detect movement and that doesn't affect the ability of track vault well to detect movement in the yard axis so let's then go back to what the patent says about figure about patent at lines nineteen to twenty eight that's where the reference is not to figures want to work for but figures one through four but more importantly there is the specific reference to track vault well the same t so if you go to page eight seven six one which preceded this by about nine pages at line third with a reference to figures one to four and particular where true where in track what which is operated trackball twelve which in this example is the hand operable single input number operable in the six fold because you know so if you read this page and eighty seven seventy they're saying about figure five days so your five allows the college to detect movement and a couple of degrees of freedom that doesn't interfere with the ability of the trackball to detect this the first sentence the abstract says the invention is single and put numbers twenty four times in the background invention they say single and put numbers only example that they rely upon is it was the argument that the one thousand nine hundred six application didn't support well you sure the broad question was are you but the specific questions we're dealing with here about the disclaimer here  did not argue that it was ineffective to incorporate the chuang disclaimer my final point was going to be if that's true if incorporated change his claim or that it's a disclaimer of won't when put members and then the narrow claim construction is someone had possession of the invention does that support the claims they're very close so that's the reason that we're making the arguments to your honor but to the court on that basis but i think that if  considers i mean the focus of the argument today has been on figure two and if the panel considers the fat the first sentence of the abstract the background of the invention chang disclaimer