on that construction and third the district court's determination that this case is exceptional and granted attorneys fees under the two to six patent is this you do note you see a page three of your opening brief from two thousand and six to two thousand and eight involved so for example mr merrill was present in court and today there are the other inventors that are involved negotiating with nintendo of the time with respect to the inventions disclosed and nintendo sa review of the records so why would we so i think that what you're saying is that we would have to then go through the record and either say there's enough in the current record to to support an objective laid industry and transfer material fourteen and twenty three which characterize that strain transfer material was being based on a proxy resin even as we sit here today there's nothing in the briefing that is suggestive that all that those those elements were present in what was allegedly also in public because you may be right you may be wrong i'm a process person what i'm trying to get at is you complain a lot about the fact that the district court made that finding in general terms simply said your argument to the contrary was disingenuous and and found the objective for him to be satisfied isn't it our job under high mark to now go into the record and either agree with you that there's not enough there or not agree with you but i mean but let you know that we're unhappy with what the district court did different standard of review ok you can go back to iraq so i'd like to turn to the construction of isometric exercises i could which was the first point they destroyed court adopted a construction of isometric exercise that excluded certain fundamental types of isometric exercises specifically envisioned by the patent and so for example the district court excluded the possibility that that a person might ice naturally exercise a muscle force against the use of joints and that is specifically contemplated in a number of examples in the pattern the column one finds twenty six through thirty seven including pulling apart hands fighter jet pilots performing isometric exercises such as contractions of the lower limbs and pushing away from a stationary surface now the stationary surface that parents medically used as an example in the patent is the wall but it might just as easily have been the floor because with respect  exercise what you're looking for is an object that substantially resists movement excuse me and the reason that the floor the wall work the sole reason the floor of the work is the because of the gravity which prevents movement away from his handlebars extending perpendicularly to the ground or to be in parallel to the ground the user could very easily have slumped over and and thus exerted some force on those handlebars which would be weight shifting or the user could depress those bars using isometric muscle force and i think the important thing about that particular embodiment and what the district court disregarded is that that muscle force is communicated to those affected indirectly that is that muscle force the genesis would be the shoulders typically or the biceps triceps or some other part of the torso and it's not the hands the hands are in direct contact but the effect so when the district court adopted at an intended nintendos agreement a construction the effector to provide isometric exercise merely has to be in direct or indirect contact to resist force of ice metrically exercise muscles that would that's directly contrary to what the district  which precluded the possibility that i symmetric exercise could be in opposition to the user spotted now the reason i think what the false dichotomy is here is the district court concluded in that nintendo contends in its brief that the effector must be the only thing that resists movement and of course that's not what actually happens in isometric exercise what you have is for example a cap strain shown in figure two where the user has a foot affect or the calf muscles will be strained that will impinge upon the ankle and of them there is what's called a joint reaction force because the ankle was essentially a stationary rigid object and there's a joint reaction force that is transferred from  through the ankle to the foot all that let's look at at the claims action the actual limitations of the claims the think and the distance of pointed out you have an claim why the second paragraph at least one sensor coupled to said rod and claim yes stronger and so from the foot i'm sorry if i didn't complete the chain of events so from the foot it's essentially a chain of transfer of forces so that the half full transfer to the ankle the ankle will transfer to the foot in two places actually of through the toes or through the heel and then that will be transferred to the stationary surface in this the effectors of the balance board and so dr phillips the expert of nintendo ultimately agreed his supplemental ex it was submitted by dr phillips for the court's order approximately a week before the court granted summary judgment be attempted to submit that evidence to the district court and court refused to consider it now your friend of the other side argues that that's not an accurate characterization of the record that  the court actually considered it founded not to change into now i know you're out of the court refused well during the summary judgment phase the court refused to consider it in fact excluded our motion to add some  supplemental summary judgment brief whether the court considered it in connection with the motion to reconsider is a separate issue i suppose but certainly in the summary judgment order there's no consideration of philip supplemental expert support and that there was a motion to reconsider and then a motion to reconsider in response to that the court said i'm you know i'm not going to reconsider because i don't find that it makes any difference if you're right that's true kind of unfair to say that for never never consider that that's fair your honor but in the in the summary judgment order  itself i think it's telling that the court never cited to anything in the record essentially what the court did it is consider dr drew's very extensive analysis of every force associated with symmetric muscle strain every single one and that was based on dr an ok who was a preexist an expert in the field who nintendo's own experts cited in his never attacked as not authoritative he consider those conclusory he never cited the court never cited anything other than determining that there was a on expert testimony for purposes of plant construction but what the district court did was supplanted its own assessment of human physiology and physics for that of the experts in the case and we don't believe that that's the appropriate province of the district court or did that or didn't the number of examples that expand on and that include instances in which the body is in opposition to the joints second of all the figure two shows no one is suggesting i don't think that the hands are what is being i symmetrically exercise when you hold on to a bar or that the feet are what they are but what being isometric exercises when you are depressed on the foot effector so in both of the preferred of arguments what happens is that it is other muscles that are directed directing force into the joints which is ultimately directed to the effect convincingly at a nine to two three to the difference between a user standing stationary and exerting his or her muscles only to maintain balance which results in of approximately thirteen pounds in the front sector and sixty seven on the rear vs and i symmetrical strength calf muscle which increases the front effect or force forty to forty which is two hundred eighty percent and decreases the refactor by forty percent so we're talking about a dramatic difference in the amount of force that is exerted on each effect and i would also point out before my time expires that the district court looked at aggregate force which is not with that lines are directed to the claims are directed to each effector so the district court in its opinion refer to the fact that the aggregate forces somehow  maintained during normal usage of the user's weight and i think the example is one hundred sixty pounds that's not what's relevant what's relevant is whether the force to an effect or as a result of isometric exercise various and the answer is it varies dramatically markedly  out since we're on this topic and there is a dinner of a review that that there were three witnesses on the side of saying that this earlier prototype which didn't body the claims was what was publicly displayed prior to the critical date there was a single witness mr side but a contrary recollection and then the sole written evidence of record is a log of a three three one nine which occurred it was dated two months after this trade show that occurred in january two thousand and four and it shows fundamental problems so it supports us fundamental problems with the too consumed design with the sensors which all of which are claim elements and the printed circuit board well the fact that maybe you had to tweak the design under our case and doesn't change the fact that if it advertised was a kilowatt we did not advertise the subsequent iteration of the kilowatt and so what nintendo has attempted to do is try to show something was on sale but it's what it's failed to do is to show what was on sale in that that what was on sale met the limitations and i would say that plus your question your honor what is required is at least a conception of the invention and i think that the document a three three one nine indicates that there was no complete operative conception of the invention because it wasn't working it couldn't be a major distinction between the balance board and the invention of the ninety two patent which is that the balance board is focussed on detecting the center of pressure and how the center of pressure changes left to right for back as the district court said there is no evidence showing that the balance board is able to distinguish wait for my symmetric muscular force even if there is isometric muscular force applied to the balance board and there's no evidence likely i imagine force involved in standing still or leaning forward cracked we would agree or honor that one can perform isometric exercises standing on the balance for we would not agree or honor that iso the sole evidence that they have on the subject is the conclusion from their exercise physiologist dr durie that when a person is in a crouched position as i am now bending their knees that their weight is converted from w into muscle force directed to the balance board and as the district court correctly recognize that semantics if you're a person like me weighing approximately two hundred pounds and your standing for example on a bathroom scale with your knees locked the bathroom s detects two hundred pounds if you crouch as i'm crouching now the bathroom scale detects two hundred pounds unfortunately this true that the argument from dr drew is that in the crouch position because the center of pressure has changed that the load cells in the balance board are now detecting where the center of pressure is different that somehow that's an indication that your weight his disappearance become muscle force one way of looking at this is that your muscles hold you up yep i relax all my muscles regardless of whether my knees are locked or whether i'm going to crouch position if i relax on my muscles i fall down yet the argument from dr drew a based on as a district court said a single s case when you stand in the bathroom scale in your crowd then the scale would increase in this reading but it doesn't exactly the same thing so as a district court recognized what dr drew was doing was semantics he was real  able ing muscle force relabeling weight as muscle force without any explanation and this is the key part without any explanation for what happens to that weight is just a conclusion there's no way that a reasonable jury could conclude is that there was infringement from these facts it's an absence of a genuine issue of material fact what the opponents argument boils down to is a contention that every time that there is an expert opinion one has effect or must be the object that resists force but nothing in the district court's opinion says that there can't be anything intermediate between the effect her and the muscle force in fact when the district court in its construction of provide talked about indirect and direct force the district court was talking about precisely that if you look at figure one and figure two an embodiment where the usury is gripping a bar and pushing it or pulling it if for example using their shoulder muscles to push those shoulder muscles are acting through the skeleton and through the hands and through the skin to eventually get to that handlebar effect or that's what the indirect force is all about so we believe that the district court expressly recognised that one can have something in addition to an effect or that the muscle force acts through put the district court was actually saying though is that there must be an effect or that the muscle force is applied to it can't be something other than an effect or without an effect or the if i can i'd like to talk a little bit about the attorney fees shoe because we evidence is there really there's plenty of evidence that it was on sale and marketing i give you that but the question is whether or not it contains the two but then it is limitation that's correct your honor what specific evidence other than the inner tube into the outer two those are all dated before the critical date to corroborate the testimony of mr cy one of the inventors showing that the conception of the tomb the two didn't deviate occur before the critical date and and the court said no it was there it is not correct that's officially correct your honor and of course this is not a summary judgment question so the judge was entitled to as he did result of these disputed issues and concluded that the argument f standard is a denotable review which is what i mark says then you're not required to give any difference to the district court decision nevertheless the district court's decision we believe is well reasons i'd also like to address the argument that there should have been  a element by element analysis we believe that the record shows all of the features of the kilowatt and that those features were present in the kilowatt at the time that it was placed on sale the argument that there should have been an element by element analysis was not made in the section two eighty five briefing but it was only made in the motion to alter a man after the judgment had been  appellant had the opportunity at the district court level to argue that nintendo they should have presented a claim charge or that the district needs to make an element by element analysis neither of those arguments were made the only argument that was made during the overwhelming evidence that was carefully considered by the district court on the only issue that was really presented it was only our arguing by the parties which was this subjective prong there was no debate on the objective problem there was no debate that believe that the clear and convincing evidence standard is applicable here because the parties haven't contested the validity this is not the usual circumstance where there's a big battle over whether the patent is valid or not this is a somewhat unusual unusual case for the question of what needs to be done because there was a disclaimer and because there was no effort by the opponent to argue that the patent was valid instead there was an argument focused on whether there was a subjective good faith basis for bringing a lawsuit in the first place and so it really isn't a circumstance where one can say in validity should have been proven in validity it wasn't contested we argued was invalid we presented the evidence from argument that they could rely on the presumption of realty or other issues that the judge carefully dealt with them which we think were properly responded to so again we don't believe that this is a case where one can  point to invalidity as an issue that should have been presented in the fashion that i do want to say as well going back to the ninety two patent there has been a large focus on the death nation of isometric exercise that's only one of multiple grounds that the district court found for not infringement there is the other person standing on the ground we're standing on the balance board either way you can do a symmetric exercise there's nothing that's being enabled and the effect or the so called effect or which is a load sale is not the object against which  muscle force being applied then there is the in accordance with language that is virtual reality scenarios games have to be controlled in accordance with ita metric exercise and as the district court said there is no control of games on the intend those directing the court's attention to were two months after the the legend vent in january two thousand and four sees progress reports were in march two thousand and four and indicated that it was a work in progress there major problem until the final it was before the hard data but actually vailable or could be effective but the progress of the press releases do not disclose at all they simply prefer the kilowatt they don't disclose the interior sensors or the tube in tube design so all this evidence about press releases does not indicate at all what was allegedly offered for sale and that's that's outlined in a two two three nine thirty two four two going back so i could to this notion that all we're arguing is th and there's just minor muscle contractions in order to maintain balance if one of the dogs a crouched position the skeleton is no longer in a position to exert force downwardly so at that point muscles are required to be contract and of course it can be an exhausting process to sta means is that as dr phillips correctly points out if one tries to to exert isometric task force by pushing for down on one's toes you have a tendency to fall backwards in the way that that's counteracted is by leaning over as all the evidence record indicates the person would then lean over to prevent it from tipping backwards the corollary is if you try to lean forward then you will fall over unless you observe your isometric calf muscles at which point you maintain a stationary position so it absolutely is isometric muscle