the reason why is you know there's a question as to whether or not this i mean we know where direct kind of comes from it comes from the specification it's imported from the specification into the claims so it's really a question of whether this is improper importing of limitations from the specification or just a proper reading of the claims in light of the specification and the claim can structural is that we use to determine which side of the line it is and in how i would characterize that is what the court is a district court as the gist of the invention or the invention as a whole and the way i look at it is you look at where it came from and you look at this back there is  which criticised like you said and spend so is the direct going to criticise and so what we should do is look to specifically what the criticism is of the indirect pointing is it indirect morning itself or is it a particular aspect of indirect pointing and what you're referring to is a column two of the patent lines thirty three to thirty seven and where it says that direct pointing is less natural to the human operators such systems you look at the preceding senates it says give some reasons and it says enhance less natural  indirect pointing in the criticism is that there is no information on the actual position or presentation displayed with respect to the system causing the resulting pointing action to be inherently indirect and hence less natural and so you look at that criticism and you say does that result in as reading the claim to require correct warning in the the answer is no what it requires is that you read the claims to have  requirement to not to have information on the actual position of the presentation display and that's in the claims not of the handheld device it's in the claims for example when you find one example where in the  into prior art into direct pointing indirectly in mix and they knew it that they knew what those claims were they specifically defined him and there's a reason they didn't use those claims then in the claims specifically didn't use it so he shouldn't read those in it especially when you have not only direct pointing and indirect pointing you have mixed so there's this gray area and so and and mix direct indirect and then you have the issue of want you to find something as direct warning structure there's still the question of whether or not the device infringes under that interpretation so if of course if you find that there is no infringement if you find that the claim structure requires repointing and that there is no infringement because of that no you don't reach the other issues but our position is and so let's go with the assumption that the claim to struction it is is not correct it's removed direct warning let's say you find that direct pointing is required and claims then then the question is what's direct pointing and even if direct point is required there's still infringement because the we remote is still a direct pointing device if you and that's and he's for most of that i'm using it as is what much children do when they play the week they point to the screen they point at what they're trying to control on the screen and that's direct warning if you look at the district court's summary judgment ruling there is enough fact findings in there in the in the summary judgment order where they find no infringement there's enough fact findings in there to find that there isn't frenchmen if you look at the court ruling the washington's court ruling at it's eight thirty seven in the joint appendix they say the court starts out by describing the configuration of the wee system when it's configured according to the instructions according to the user manuals where you put the sensor of are a directly above or below the t v screen and you tell the we system the user tells the system where the sensor box located so you know there is this and at the screen and the approximate intersection of the visible one of em with the screen giving the user the impression of direct pointing that straight corny but then there's a criticism it says but the weeds not collector generate the data that would be necessary to accurately place a cursor on the screen so what the court is saying is well you have direct pointing but it's not close enough is a direct point the sensor bar is often one side if the sensor bars off to one side what you're it's it's the relation you're changing the relationship of the calibration points contrary to that will do to the user manual to the way the device is intended to be constructed so it's really not a relevant issue in the case you're pointing because because the device operates by using the direct relationship between the calibration points and the display if you change that relationship it changes how it works but for a district court to give enough findings to find infringement and to say well if we configure the product contrary to the way it's supposed to be used contrary to the way the manufacturer tells it to  therefore it doesn't infringe first of all that's not the way the analysis should be done in the first place but just because it infringes when you configured in one manner doesn't mean that it never infringes it still infringes in the manner that it's designed to be constructed and if you look further into your proposal times drug use continue or you can say but the only thing i wanted to point out was that if you take a look at what issues are remaining in th case i want to make sure that you understood that if you if you do go through the direct coining of the image sensor and correct then or at least show find that there's genuine issues of material fact even under the claim construction there are genuine issues of material fact and it's important to recognize that the description of the operation of the least of that's contained in the summary judgment order was not contested by altman pointer in their briefs they did not identify anything said by the district court describing the operation of the week that they say this is erroneous and so there just isn't anything that the district court bases summary judgment on that would create a genuine issue of material fact and on the definition of direct pointing we believe that there is both an implicit definition of hand held device and handheld pointing device to include direct pointing and definition by disavowal disavowal by disparagement  there is no purpose to the invention of this patent other than direct pointing it is the entire reason for its existence without direct pointing there's just nothing that one would do with the invention of this patent and then of course if you look at the specification direct pointing permeates the specification it's in the title it's in the summary it's in every embodiment it's in all of the figures and then of course if you look at what's described in of the kind of features that are contained in the we system so if you look at really column two thanks three of one now there's a description of prior art pointing devices that show indirect pointing and within that description there are lots of different things but one of the things that's described as indirect pointing that doesn't have the advantages of the invention is the we system the specification talks about patents showing pointing devices that are measured with respect to some coordinate system as line twenty six in column two and then it talks about coordinate systems that have several different approaches including infrared devices and that's how the we system works there are invisible infrared lights in this sensor bar it's the bar that sense by the way remote and so that's the kind of coordinate system that the prior art discussion is talking about and then the those coordinate systems may be positioned close to the display so the sensor bar can be above or below than when it's below it can be a range of distances of the if the screen is here it can be here or some place in front of it but it's position and relatively close and then the specification describes all of those prior art items including the we system as inherently indirect it doesn't call out that we system by name but it certainly describes exactly the kind of says from him so we think that there are all the reasons why you should pay attention to the specification and say that this is a indirect pointing system that is not covered by the claim to think the judge davis interpretation of the meaning of direct pointing is correct and we don't think that there is anything that is undisputed about the operation of the we system that there is anything that is disputed there's nothing that's disputed about the operation the w a genuine issue of material fact now top of that we believe that you can find and agree that there is no infringement merely by looking at the image looking at what is the image sensor by the image sensor the reason for that is that old reporter wants to interpret the claims in such a way that the image sensed it is one that we system simply cannot sense is one that is a different image from the image this referred to throughout the claims now there is no dispute ultimate pointer hasn't disputed that the wee remote is incapable of sensing the computer generated image it's got this infrared filter in the front so that the sensor inside the wee remote is completely incapable of sensing visual light which is what's in the computer generated image and then you look at every claim that's assertiveness seven to nine patent and they are claims that are either method claims or apparatus claims the apparatus claims are a method are an apparatus for controlling a feature on a computer generated image and the method claims are a method for controlling a feature on a computer generated image and the rest of the claim talks about the image in some instances the expressly the computer generated image and some instances it's said image that courts would governor wants to say that a system that can't see the computer generated image and can't gather data regarding that computer d so for all those reasons we think that there is just simply no infringement or direct pointing out no image that is properly sense by the image sensor you don't have to reach any other claim construction issues nic was completely correct in his interpretation of the claims as mixing both a method claim a method step into an apparatus a claim any did that by following some pretty good precedent from this court the rembrandt case which had a very similar kind of language transmitting frames and in the rembrandt case this court agreed that if there was that kind of language requirement of action transmitting frames in a apparatus claim then it's indefinite under ip xcel here we had a generating data step now there is a tiny difference between the membrane case it's not generating well your honor we because we believe that the microprocessor enhancement case was based on the fact that was a means plus function clause that they were section one twelve paragraph f clauses and the microprocessors it there is no explanation in the language  the case your honor for why it's clearly a wealth of capability as a purely a capability you're right and there's no explanation we think the reason most likely is because it's a means plus function and i think the two cases should be reconciled and that's the best way to do it i mean that the language in rembrandt very closely matches the language here if we say that microprocessor enhancement goes in the opposite direction then i guess would be up to this court to just record it was correct and to look to see whether or not that's the case you look at the claims in the specification and look at the purpose of the image sensor in the claims claim five an exe is an example it talks about the purpose of that the purpose of the image sensor to be generating date of the are in the in the they are described in the spec to be either the corner of the image or there are also described that when they list or some prior art and examples of calibration points they are they doing clued points outside the image off to the side of the screen and that is precisely what is done with the we sensor bar because yes they're outside the display but the system knows the relationship the direct relationship between the display and the sensor bar and so there's no difference between having a calibration point that's within the screen versus having something that's adjacent to squared of had they're not related to the calibration  directly related to the the calibration point the pattern shows that the that the calibration points are directly related to the image and that's that's what's reciting for example in the preamble  and so that's what we have in the we where you have the money center bar the above or below directly adjacent to the display in the computer the console knows the relationship and so it's the same thing as having a