and this time Mr. May, you start off. Just to be clear, now we're exclusively on the 809. Please, the Court, this appeal, as you said, involves the 809 patent. Hoan would like this Court to reverse the commission's finding of violation with respect to at least three issues first. If the Court adapts Hoan's claim construction for the term petition to electrically connect, then all those claim would be invalid for non-independent, non-independent and not infringed. Here, I think the part is agree that this claim should be unindeggious and should be construed according to its claim and ordering meaning, but deferred to what plain meaning is. Now, the commission and Hoan argue, this term, of the commission and the谋ton argue, this term should be construed as so as to be capable of electrically connecting while Hoan argue this term should be in a certain position or in place too. In an essence, there's no dispute with respect to the first portion of the commission's name construction, which states situated so as to, and Hoan does have a problem with commission's insertion of the words capable into the meaning of this term. So if you look at the plain meaning still, it's very clear talking about a position. So think about a woman like a jaw bridge. When jaw bridge closes, cars can go cross bridge. When the jaw bridge opens, cars cannot, you're just like electrical current cannot go cross. So plain meaning is very clear, this is the structural limitation talking about a position and nothing in the claim or in the specification talks about capability with respect to this term. Well, you're actually reading, I mean, at the commission noted, you'd be reading the phrase positions two out of the claim. You're essentially saying they have to be electrically connected. Right? That's not correct, Your Honor, because we are talking about structural limitation here
. There are the reasons for conditions. Even the subsequent claim limitation, claim one, where talks about a mixture, having a first position, second position. So it talks about specific structural limitation, where the jaw bridge or mobile bridge in this pattern will be at. So it's a structural limitation. We don't see that we read that those two words out of the plain at all. And furthermore, if electricity is not connected, there would be no electrical connection anyway. So therefore, multiple reasons. All we argue based on claim meaning should be considered as situated so as to, or in a certain position, or being placed to, but where the capability coming from, it's not supporting the claim or in the specification. And if we look at prosecution history, here we're not arguing in prosecution disclaimer here at all. We just know to the court that, there are people that have wanted to claim to stay capable. They knew how to do it. They did that before. There's no explanation in the prosecution history as to why they changed the language. That's correct. That's what we are not arguing in the disclaimer at all. We are arguing that prosecution history supports any consistent with common claims and instructions that claim meaning of this term is in a certain position or being placed to
. Right. The misinterpret of logic, and that's what it says specifically, that it would be possible to have it in a trip and a recess stay at the same time. That's correct. And if you want to fill in the art, would understand that that's not what's intended. That's correct. And how is your construction not effectively proposing that? That's correct. That's actually our point. Because the party did not dispute under one claim in the construction, the device, the claim one, and all other claim would be, I mean, would be inoperable. But according to the American case, when the claim, this bit of claim, can't be used, the court cannot reject claims to make the claims operable. So essentially here, I think the focus, we need to focus on- Yes, I mean, essentially your claim construction invalidates these claims in a second, right? That's correct. Right. Okay. Assuming we don't agree with the claim construction, what do you have left on your obviousness, the facts? Right. And that goes to my second point. The claim one is invalid over Mark Kuh and the servo. And here, the claim one is important because the levitin is certain many claims
. Even the court finds the claim one invalid. The levitin only is the best in the industry with step to claim one. Then there will be no violation of section 237. Here, it's undisputed that the combination of Mark Kuh and the servo teaches all elements of claim one. But I don't understand. The ITC found that you waived your argument and you didn't even address that to us on appeal. Your whole blue brief doesn't address the facts that the ITC held those away, they then went on to say, even if there's not a waiver, we reached the following conclusion, but they expressly held that there was a waiver. So by failing to address it, it seems to me you waived the ability to even challenge obviousness. And you all know we didn't see the information that waiver issue. But in effect, when we argue, we want to invalid over Mark Kuh and the servo, I do not believe that we waived that issue at all. But the ITC found you did. Whether you, if you didn't think you waived it, you should have said that in your blue brief. And you didn't. The issue that you're appealing is the ITC's conclusion that you waived an argument and yet you totally failed to address whether you did or did not waive it in your blue brief. You want to bet the reading of ITC's opinion is not as clear. Even ITC did not argue that, how I waived that argument, ITC is open to this appeal
. So there is ambiguity, I think that, that there was a possibility, there was argument about waiver, but ITC went on to talk about substance, the merits of invalidate defense. So you were saying I can't be waived the waiver? No, no. Sorry, you're on. I'm just saying ITC's commission opinion is not clear as to the waiver point. Therefore, even ITC's opening brief, ITC's counsel did not argue forever. It says we find that the tromone respondent argument to the ALJ concerning the involvability of the 809 patent depended upon claim constructions that will rejected by the ALJ. Oh, am I reading the wrong card? Hold on, I'll read the wrong card. Oh, sure. The ALJ determines that the tromone respondent provided no obviousness arguments for the 809 other than arguments based on their own construction of the claim term position to electrically connect. Because the ALJ rejected the tromone respondent of construction, he found familiar respondent did not present a clear and convincing evidence that the 809 patent was invalid. Is that the holding? I'm missing it. You knew I had the right place? You're on the page number? Sure. A65 and 66. I think from A65, A66, the commission just described what it was. What it was, argued before the ALJ in A67, commission did say tromone respondent argument largely to be an own upon claim construction that will rejected by the ALJ. And the following sentence does not talk about wave energy at all
. About page 67 where it says, you're right, it doesn't use the word wave, but we find on page A65 and tromone respondent arguments to the ALJ can train involuntarily defended upon claim constructions that were rejected by the ALJ. So, as a matter of fact finding, they've characterized your argument as being limited to obviousness under your claim construction only. You're on an actual discreet with that point, because even you're reading A67 talks about largely dependent upon claim construction. And there's notice view that tromone, which is what I call as one's opponent here, did present arguments about immolidity forward combination of the mark when the solve of. The point you're on and make is this particular paragraph is not clear as to the wave energy. Even permission is only an opening brief that not to address wave at all. So, I know we would. Well, I guess you're saying this on page 67. It's a little unclear to me, but the second sentence, however, so the commission's on this, it largely dependent on the claim construction that was rejected, but even if it didn't and went on to prove that. So, that's kind of, I don't know what it is. It's not turning the holding or whether it's an observation. Right. You're on an annual would be. Can you know, we argue we were at all. I agree with you, you're on a here. But the point I am trying to make is this particular paragraph is not clear
. We are fair to find a waiver based on unclear finding here, along and furthermore, the commission's on opening brief does not talk about waiver at all. I know Leverton argued about waiver, but that's not commission's, commission's position. At this, based on commission's opening brief. All right. So, even if we assume that your obvious misarguments did not depend solely on your claim construction, that's the commission's rejected and the ALJ rejected. Don't you have other problems with your obvious misargument in the sense that the commission specifically found that your own expert admitted that it would be very difficult to undertake the combination that you're proposing and in fact, that the commission found that in combination with the your opponent's expert testimony was sufficient to allow the ALJ to conclude that there was no motivation to combine. You know, I don't believe that respondents, our expert, ever testified that it would be difficult to combine those two references. In fact, Leverton's own expert, but considered a trial, and of course, even a cross-examination that with the benefit of the solver would be very easy to modify a month cool to practice claim one day on that. Well, I mean, I have a little difficulty with that because your presentation and the briefs, and I think the other side, for calls you on this, is sort of taking some of the testimony that seems out of context. And so, I don't reach reading the testimony of the entirety. I don't reach the same conclusion you necessarily reach. Because I think there are other aspects where he's quite clear that he doesn't agree with you on the obvious misconclusion. Am I reading the record in your view? Do you know what I'm talking about? Yeah, I understand you're on it. Leverton's expert did reach a conclusion that if not obvious, if not obvious for one's hearing the art to combine two references, but when counsel for Hong-An talks through each element, with Leverton's expert, Leverton expert, considered that with the benefit of the solver, it will be obvious to combine. But now let's take a while to get there. Even the solver itself provides motivation to combine
. Leverton considered in their briefs that the inventors, the solver in vigorous came up with the solution of three isolated conjectures. Essentially, the solver talks about simply separate loads from user loads in a priori device, such as Mark Kus device. So in a way, in the priori device like Mark Kus device, you have one single metal piece that talks to load terminal and user load terminal. So all the solver talks about is just separate that one metal piece into two pieces. Therefore, the combination here is very simple. And the combination represents no more than a mere predictable use of prior elements. All right. Well, your expert says this is how you'd have to do the combination. You'd have to separate the second conductor pair of Mark Kus into two distinct pairs of electrical conductors, but electrically isolated from each other and connected to a load and a user receptacle respectively. And that is specifically what both the December and the commission found was not so simple. I mean, his description was a very complicated description of what would have to occur. And the ALJ, based on Sandberg's description of that being a difficult process, and the commission found that there would not be a sufficient motivation to undertake that exercise. So, you want to turn to a thread at that point. I think there are two different sides of experts testimony here, even Leverton's own expert. Tests by one point would be obvious. Essentially, it would be obvious to combine, and when he reached conclusions, not obvious
. But if we take one step back, just look at the solver itself. It's considered by Leverton's briefs that the invention of the solver and the figure came up with the three isolated conductors solution to address the reverse wiring problem in prior devices like Mark Roo. So, even we don't even forget about expert's cash money. The amount of motivated somebody can also be found in the solver itself. So, I mean, under the Supreme Court's holding in K-SART, it's merely a critical use of the prior element, according to its dev-ish functions. There's no argument that anything unpredictable, can't come out of this combination, you're honest. I have one question about the industry before you said that. Your other point is that there was insufficient showing of domestic industry with respect to 809. Does your argument really depend on your underlying assumptions that A and B are under statute under 337, that section A and B require actual manufacturing? That's not correct, Your Honor, because our argument depends on the fact that a prong A and B need expenditure related to domestic manufacturing, doesn't have to be domestic manufacturing activities only. For example, if you get the value of added activities, do you hold B? That was my point. You say that under A and B, you could have a thousand employees, you could have three plans, but if you're not actually manufacturing anything, it's domestically that A and B don't even apply. That's not our position. If you don't manufacture anything, but if you provided value added functions, not just administrative or marketing costs, that would be a pure import of the activities, but for example, you perform warranty services, and the commission questions have found under certain circumstances, even though complaining of manufactured products overseas, but if the method, if activity is related to manufacturing, so all the demand is that trend, that would add it to that value. Like the client control? There could be one idea. There could be one type of activity that can be counted towards domestic industry, but here I think that we need to keep in mind that Laptop had the burden of proof here, and to clearly separate it out, what type of expenditure that can be allocated to domestic industry, what type. Can I ask you that? We can't talk about a lot of the record, because we're not in a position
. I have confidential, so I guess I'm just going to ask you a general question, which is, would you characterize your appeal of the commission's decision as being over a question of law rather than a question of fact? I mean, you use this value added. I can't tell whether you're actually taking issue with the standards they applied, with the test they applied, or it's rather whether or not the numbers and the facts they used to justify their conclusion, you think that they are deficient. You know, we actually rely on the arrow based on question of law, but not on the primary, from the related to domestic manufacturing. It's on the allocation by sales methods used by the commission to advocate the maturity of its managers to the paid seven products. And the record, including Lave Town's own witness testimony, shows the entire data update feature since 2008, I couldn't get into details, but since 2008, there was no significant investment on paid seven. So in order for when commission found the manufacturing industry, commission's target certain numbers, those numbers were based on allocation by sales, based on how much sales were for paid seven products, and how much were for paid ten products. So you just say they used the data for the wrong years? Not for the wrong years, that allocation by sales method, that legal method that commission used to find the manufacturing industry is clearly erroneously legal. In certain, in certain, in certain, under certain facts, commission persons did use that allocation by sales method, but here the record does not support allocation by sales at all, because here we are reaching totally offset factual results. But so your challenge to fact finding is allocation by sales is the use consistently by the ITC for a long time. So you're not challenging the methodology you're saying in this case, that methodology shouldn't have resulted in a finding of domestic industry. That's correct. So you're challenging a fact finding. We are trying to fact find the end on top of that, they have the legal incorrect legal method legal standards. No, you're not saying the commission is not permitted to use allocation by sales in cases, are you? Not in this case. In some other cases, maybe allocation by sales method may be used by not in this case. So here, we are looking because you think the facts don't support finding
. So you're challenging the facts, you're not challenging the legal standards. In a way it is a mixture of facts and law of humans. Okay. We're well over your time. We're short, not the entirety of the 60 minutes, we originally wanted to claim, but we'll give you two minutes on rebuttal. Which means we're a little over so, some people on the other side will be a little lax, but not much. We'll hear from Mr. Tady. Can you start with a waiver point? Do you use the ITC to the city of the actually found waiver of obviousness arguments except for obviousness arguments directed at their claim construction? Is the commission or the ITC position today that the commission did not affirm that waiver determination? No, no, your honor. Page 67 of the commission's opinion intended to affirm the LJ's waiver determination and the commission's noticed to the party seeking additional briefing specifically wanted to resolve that question. So the fact that the... Why don't you argue that in your rest, Rayson? I can only say that I was responding to the argument made by the... Okay, that's a little more for a response. If he's arguing obviousness when your response being like they did, you know, it's waived. If you're going to stand here and tell me you agree with the 11th and 10th, you should agree with the new brief too. I readily can see the point in that. There you go. All right, now let me move right on. See, sometimes it's for the conceding. And happy to do so. Turning to the claim construction argument with the position to electrically connect, the commission does believe, of course, as noted, that the respondents' argument reads the words were positioned to out of the claims that's not consistent with the description and the classification, which describes the new rule bridge that connects to different configurations of conductors. It is a little weird, isn't it, though, that they take the words capable out and place them something out, and then their proposed construction is capable of. Yeah, I would happily address that if we can look at the bottom. Is it because capable of was originally only limited to one conductor and now that they were meaning to explain that it was all three? No, if we look at the originally presented claim, that appears in the appendix at A01461. And what we see is a claim that describes a completely different aspect of the invention than the issue claim. So we have a first conductor that's capable of being electrically connected to a specific thing, its source. Then we have a second conductor that's capable of being conducted to the load. And a third conductor that's capable of
. Okay, that's a little more for a response. If he's arguing obviousness when your response being like they did, you know, it's waived. If you're going to stand here and tell me you agree with the 11th and 10th, you should agree with the new brief too. I readily can see the point in that. There you go. All right, now let me move right on. See, sometimes it's for the conceding. And happy to do so. Turning to the claim construction argument with the position to electrically connect, the commission does believe, of course, as noted, that the respondents' argument reads the words were positioned to out of the claims that's not consistent with the description and the classification, which describes the new rule bridge that connects to different configurations of conductors. It is a little weird, isn't it, though, that they take the words capable out and place them something out, and then their proposed construction is capable of. Yeah, I would happily address that if we can look at the bottom. Is it because capable of was originally only limited to one conductor and now that they were meaning to explain that it was all three? No, if we look at the originally presented claim, that appears in the appendix at A01461. And what we see is a claim that describes a completely different aspect of the invention than the issue claim. So we have a first conductor that's capable of being electrically connected to a specific thing, its source. Then we have a second conductor that's capable of being conducted to the load. And a third conductor that's capable of... What page do you send me to? I'm sorry, Your Honor, it's A01461 of the appendix. And then the third conductor in that originally presented claim is capable of being connected to user accessible flux. So by the time we get to the issued claim, we're looking at something else entirely. We're looking at all three conductors capable of being electrically isolated from each other. And at least two of them being connected to the user accessible flux. So we're concerned with a completely different arrangement. And there is no indication in the prosecution history that the reason that this claim was cancelled entirely, this claim was not amended to get to the claim of issued, but it was cancelled entirely. So the patent he pursued a different approach entirely on the invention that it was looking for, mostly focusing on the center latch, not focusing on the configuration of conductors. And I think I heard my counsel, my opponent, Conceed, and I hope correctly, that he's not relying upon prosecution disclaimer. So I'm not sure why it even matters that the claim was originally presented that came to the law. I think the commission's construction was just trying to get at the dispute between the parties, which the ID didn't really resolve, and the dispute between the parties was towering these things, configured in relation to each other. Do they need to be always connected, or do they only need to be positioned so that they can be treated? So the language wasn't simply pulled out in replace with something else, the claim was completely rewritten. That's correct, you know. And I think rewritten with a focus on the center latch, if you look through the entire prosecution history
... What page do you send me to? I'm sorry, Your Honor, it's A01461 of the appendix. And then the third conductor in that originally presented claim is capable of being connected to user accessible flux. So by the time we get to the issued claim, we're looking at something else entirely. We're looking at all three conductors capable of being electrically isolated from each other. And at least two of them being connected to the user accessible flux. So we're concerned with a completely different arrangement. And there is no indication in the prosecution history that the reason that this claim was cancelled entirely, this claim was not amended to get to the claim of issued, but it was cancelled entirely. So the patent he pursued a different approach entirely on the invention that it was looking for, mostly focusing on the center latch, not focusing on the configuration of conductors. And I think I heard my counsel, my opponent, Conceed, and I hope correctly, that he's not relying upon prosecution disclaimer. So I'm not sure why it even matters that the claim was originally presented that came to the law. I think the commission's construction was just trying to get at the dispute between the parties, which the ID didn't really resolve, and the dispute between the parties was towering these things, configured in relation to each other. Do they need to be always connected, or do they only need to be positioned so that they can be treated? So the language wasn't simply pulled out in replace with something else, the claim was completely rewritten. That's correct, you know. And I think rewritten with a focus on the center latch, if you look through the entire prosecution history. I'd now like to turn to the obviousness argument. I think that my opponent is arguing to this court that the court should re-way the disputed evidence in the record about whether it would be obvious to combine these references. I think that that would be inappropriate and inappropriate. Activity for this court in the expansion case, the court said that even if some evidence in the record detracts from the commission's conclusion, where the substantial evidence, the supporting commission's determination, it should be affirmed. Oh, wait, I'm confused by what you're saying right now. Obviously this is a question of law. We don't review it for substantial evidence. Are you focusing on motivation to combine, which is a question of fact, and saying there's substantial evidence of commission's finding on that? Yes, your honor. Graham says that those underlying facts are not going to be. Yes, well, I just didn't appreciate that you were focused on individual facts. I thought you were talking about obviousness in general. I totally agree that the obviousness conclusion is a question of law based on underlying factual considerations. My opponent cited the inventor's home thought process as supporting his obvious argument. Well, the inventor came up with the invention. So that, as a matter of law, is legally irrelevant? The central focus on the obviousness determination was motivation, correct? Correct. And didn't Danburg at Leviton Dutchford, at least at one point say it wouldn't be that difficult to combine these things? I don't believe Mr
. I'd now like to turn to the obviousness argument. I think that my opponent is arguing to this court that the court should re-way the disputed evidence in the record about whether it would be obvious to combine these references. I think that that would be inappropriate and inappropriate. Activity for this court in the expansion case, the court said that even if some evidence in the record detracts from the commission's conclusion, where the substantial evidence, the supporting commission's determination, it should be affirmed. Oh, wait, I'm confused by what you're saying right now. Obviously this is a question of law. We don't review it for substantial evidence. Are you focusing on motivation to combine, which is a question of fact, and saying there's substantial evidence of commission's finding on that? Yes, your honor. Graham says that those underlying facts are not going to be. Yes, well, I just didn't appreciate that you were focused on individual facts. I thought you were talking about obviousness in general. I totally agree that the obviousness conclusion is a question of law based on underlying factual considerations. My opponent cited the inventor's home thought process as supporting his obvious argument. Well, the inventor came up with the invention. So that, as a matter of law, is legally irrelevant? The central focus on the obviousness determination was motivation, correct? Correct. And didn't Danburg at Leviton Dutchford, at least at one point say it wouldn't be that difficult to combine these things? I don't believe Mr. Sanders said that. I think he said just the opposite. Well, he later came back and said it wouldn't have been obvious, but a prospect of elimination, he talked about it not being that difficult. His prospect of elimination testimony that is relied upon by my opponent, I think, says it would have been obvious in hindsight, then the questioner says, you mean with respect, after you look at the prior art patent, and then he says, yes. Well, that must be an error in its inconsistent with the other testimony that the commission relied upon, because hindsight can't be based on the prior art. Hindsight, by definition, be in cure using the issues hadn't as a guide, as hindsight to arrive at the claims' invention. Do you think Leviton has expert completeness, folks? I think he must have spoken, even if he didn't misread, there is substantial evidence where he unequivocally states that this is difficult to do. Someone wouldn't know how to do it, and the commission credited that testimony. So when there's conflicting testimony about this underlying factual issue of motivations combined, and there is substantial evidence supporting the commission's determination, this courtship for that determination based on that evidence. And with regard to this argument that someone would simply know how to cut conductors and arrive at the claims' invention, that's not at all clear. If we sniff the metal pieces in the manner that my opponent's expert testified that you could do what are you left with? You're left with two floating pieces of metal. There is no evidence in the record about how those conductors should be connected to the rest of the circuit, how they're going to be reset, how they're going to be isolated. That evidence is simply not there. On domestic industry, would you have any questions on that? No, I was going to turn to you. Okay, on domestic industry, would you agree that a hellendous challenge is probably a factual one? I mean, the methodology that you've used, the commission used, seems to be a methodology that has endorsed in many cases. So, a methodology doesn't seem allocation, I failed, to be inherently long
. Sanders said that. I think he said just the opposite. Well, he later came back and said it wouldn't have been obvious, but a prospect of elimination, he talked about it not being that difficult. His prospect of elimination testimony that is relied upon by my opponent, I think, says it would have been obvious in hindsight, then the questioner says, you mean with respect, after you look at the prior art patent, and then he says, yes. Well, that must be an error in its inconsistent with the other testimony that the commission relied upon, because hindsight can't be based on the prior art. Hindsight, by definition, be in cure using the issues hadn't as a guide, as hindsight to arrive at the claims' invention. Do you think Leviton has expert completeness, folks? I think he must have spoken, even if he didn't misread, there is substantial evidence where he unequivocally states that this is difficult to do. Someone wouldn't know how to do it, and the commission credited that testimony. So when there's conflicting testimony about this underlying factual issue of motivations combined, and there is substantial evidence supporting the commission's determination, this courtship for that determination based on that evidence. And with regard to this argument that someone would simply know how to cut conductors and arrive at the claims' invention, that's not at all clear. If we sniff the metal pieces in the manner that my opponent's expert testified that you could do what are you left with? You're left with two floating pieces of metal. There is no evidence in the record about how those conductors should be connected to the rest of the circuit, how they're going to be reset, how they're going to be isolated. That evidence is simply not there. On domestic industry, would you have any questions on that? No, I was going to turn to you. Okay, on domestic industry, would you agree that a hellendous challenge is probably a factual one? I mean, the methodology that you've used, the commission used, seems to be a methodology that has endorsed in many cases. So, a methodology doesn't seem allocation, I failed, to be inherently long. So, would you interpret his argument as limited to a factual challenge? I do, and I think that that was conceded in the briefing that they're not challenging the commission's interpretation of the statute, which would be a legal question. But rather, they believe that the commission erred in relying on some data in support of its determination. And of course, that determination is reviewed by substantial evidence. My opponent, I think is, sorry, my colleague now, who was as wrong before as he is right now, the will that Drought a Thought. Can I ask one last question that our domestic industry, would it be the commission's position that under A and B, if you build a massive plan and put a bunch of people on there, that it doesn't really matter what they do, as long as you've got expenditures and as long as you've got the product being manufactured somewhere? It matters what they do with respect to the articles. So, if it was, all you did was chip it in and then package it and market it with that count? I'm not sure that I can answer that question, but if you build a massive plan and you fill it with engineers that design the articles that are built in another country, I think there's no question that Congress intended that to be domestic industry. Under A and B or under C? Under all three. And I direct the court's attention to the House reports cited in the commission's brief, which says, before we, the ADA, the ADA, no definition, now we're creating a definition, the definition has three parts. And parts A and B are meant to codify pre-existing commission practice, but we are intending all three parts to be broader than pre-existing commission practice. And domestic manufacturing is not required and I think under the legislative history it says under this definition. So it applies to all three parts that are in the order. And there's no temporal requirement or limitation. In other words, if they design this product back in 2000 and now it's being manufactured in China, and now all the people that worked on the original design of the product are now working on design the hamburgers. I mean, nothing to do with it. That still satisfies the domestic problem. I think that this court has looked at the temporal limitation on domestic industry in different contexts, particularly if there's a concern that the industry has gone out of business
. So, would you interpret his argument as limited to a factual challenge? I do, and I think that that was conceded in the briefing that they're not challenging the commission's interpretation of the statute, which would be a legal question. But rather, they believe that the commission erred in relying on some data in support of its determination. And of course, that determination is reviewed by substantial evidence. My opponent, I think is, sorry, my colleague now, who was as wrong before as he is right now, the will that Drought a Thought. Can I ask one last question that our domestic industry, would it be the commission's position that under A and B, if you build a massive plan and put a bunch of people on there, that it doesn't really matter what they do, as long as you've got expenditures and as long as you've got the product being manufactured somewhere? It matters what they do with respect to the articles. So, if it was, all you did was chip it in and then package it and market it with that count? I'm not sure that I can answer that question, but if you build a massive plan and you fill it with engineers that design the articles that are built in another country, I think there's no question that Congress intended that to be domestic industry. Under A and B or under C? Under all three. And I direct the court's attention to the House reports cited in the commission's brief, which says, before we, the ADA, the ADA, no definition, now we're creating a definition, the definition has three parts. And parts A and B are meant to codify pre-existing commission practice, but we are intending all three parts to be broader than pre-existing commission practice. And domestic manufacturing is not required and I think under the legislative history it says under this definition. So it applies to all three parts that are in the order. And there's no temporal requirement or limitation. In other words, if they design this product back in 2000 and now it's being manufactured in China, and now all the people that worked on the original design of the product are now working on design the hamburgers. I mean, nothing to do with it. That still satisfies the domestic problem. I think that this court has looked at the temporal limitation on domestic industry in different contexts, particularly if there's a concern that the industry has gone out of business. For example, I think there's a case about a bankruptcy or a transfer of rights to patents. So I think that there are times when the court and the commission should look at something other than the time the final complaint. But the court and the commission both have to be reasonable about what commercial practice entails. You build a product, you start getting it to market, and you move on to the next product. And we have substantial evidence in the records here cited on page 36 of the commission's brief, that even though these engineers were indeed working on the record shows, working on additional products, they had not left the products that practiced the patent time. They were still involved in that product twice, and I call them those products were still in the cells. So I think that it's important to recognize certain commercial realities, and this is not a case where we see a dwindling or disappearing domestic industry that the court has been concerned about in other cases. Okay. What are we here for? Thank you. We have anything more in the comments. Unless the court has some questions, I'm going to just very briefly accept Mr. Chains invitation to expand on the domestic industry issue just briefly. If you look at A11776 of the joint appendix, it shows the investments Levitton made in 809 Pat in 2010 alone. And I have my clients permission to give the total number here. It's $10.7 million
. For example, I think there's a case about a bankruptcy or a transfer of rights to patents. So I think that there are times when the court and the commission should look at something other than the time the final complaint. But the court and the commission both have to be reasonable about what commercial practice entails. You build a product, you start getting it to market, and you move on to the next product. And we have substantial evidence in the records here cited on page 36 of the commission's brief, that even though these engineers were indeed working on the record shows, working on additional products, they had not left the products that practiced the patent time. They were still involved in that product twice, and I call them those products were still in the cells. So I think that it's important to recognize certain commercial realities, and this is not a case where we see a dwindling or disappearing domestic industry that the court has been concerned about in other cases. Okay. What are we here for? Thank you. We have anything more in the comments. Unless the court has some questions, I'm going to just very briefly accept Mr. Chains invitation to expand on the domestic industry issue just briefly. If you look at A11776 of the joint appendix, it shows the investments Levitton made in 809 Pat in 2010 alone. And I have my clients permission to give the total number here. It's $10.7 million. And it's broken out on that page of the several of the categories. If you look at pages 65 and 66 of our brief equipment five, every one of those categories involved into a category where the commission has found that those types of activities, we continue to met the domestic industry. So with the temporal issue, even if we set that aside, there's $10.7 million just in 2010. And on the temporal issue, if we look at the video games controllers opinion from the commission April 14, 2011, the commission remanded something back to the judge. And this is what they said about the temporal issue. Quote, means the language of the statute, nor the legislative history preclude from consideration, engineering, and research and development investments that precede the issuance of the patent in determining whether a domestic industry exists or is in the process of being established. Indeed, as one A on J has acknowledged, quote, often align share of the research and development costs are incurred before the patents are paid. So that was addressing subsection C. And the commission never got the subsection C here. Actually, if you look at a little farther up in that opinion, it talks about the other portion of the statute as well, I believe, but has to see just so the records clear. C was a dress and was addressed by the Ministry of Law draft. Why the commission didn't reach C. I'm not sure I assume they felt that the A, B, evidence was sufficient. But for some reason, this court thinks the A, B evidence was insufficient. It needs to remand because C was an issue
. And it's broken out on that page of the several of the categories. If you look at pages 65 and 66 of our brief equipment five, every one of those categories involved into a category where the commission has found that those types of activities, we continue to met the domestic industry. So with the temporal issue, even if we set that aside, there's $10.7 million just in 2010. And on the temporal issue, if we look at the video games controllers opinion from the commission April 14, 2011, the commission remanded something back to the judge. And this is what they said about the temporal issue. Quote, means the language of the statute, nor the legislative history preclude from consideration, engineering, and research and development investments that precede the issuance of the patent in determining whether a domestic industry exists or is in the process of being established. Indeed, as one A on J has acknowledged, quote, often align share of the research and development costs are incurred before the patents are paid. So that was addressing subsection C. And the commission never got the subsection C here. Actually, if you look at a little farther up in that opinion, it talks about the other portion of the statute as well, I believe, but has to see just so the records clear. C was a dress and was addressed by the Ministry of Law draft. Why the commission didn't reach C. I'm not sure I assume they felt that the A, B, evidence was sufficient. But for some reason, this court thinks the A, B evidence was insufficient. It needs to remand because C was an issue. Evidence was put in on C. There was a finding on C from the Ministry of Law draft. But the bottom line is, I think you can set aside that issue of timing because we have the 2010 numbers here. They're extensive and they all break out into categories as the commission's sound count, such as quality control, testing, engineering, et cetera. So once you have any questions, I have nothing further. Thank you. I'm going to remind the court who here got talking about the server, not talking about it or the Eto 9 pattern. So the prior pattern, the event for the prior patterns, understanding thousand error here and specifically, Mr. Sanberg, considered with that hindsight, and he will talk about hindsight, which he was talking about the server 558 pattern. Well, that's his, yeah, you mean, that's the thing. Yeah, but that's followed is that not by kind of a detailed answer that really distances himself and makes clear that that's not really what he meant. Right. It's not a fair assessment of the record. That's correct. And here's the explanation. Why is not all this combined for that Mark Kuhn-De-Salvo teach newspapers explosive research? That is irrelevant
. Evidence was put in on C. There was a finding on C from the Ministry of Law draft. But the bottom line is, I think you can set aside that issue of timing because we have the 2010 numbers here. They're extensive and they all break out into categories as the commission's sound count, such as quality control, testing, engineering, et cetera. So once you have any questions, I have nothing further. Thank you. I'm going to remind the court who here got talking about the server, not talking about it or the Eto 9 pattern. So the prior pattern, the event for the prior patterns, understanding thousand error here and specifically, Mr. Sanberg, considered with that hindsight, and he will talk about hindsight, which he was talking about the server 558 pattern. Well, that's his, yeah, you mean, that's the thing. Yeah, but that's followed is that not by kind of a detailed answer that really distances himself and makes clear that that's not really what he meant. Right. It's not a fair assessment of the record. That's correct. And here's the explanation. Why is not all this combined for that Mark Kuhn-De-Salvo teach newspapers explosive research? That is irrelevant. Even under substance evidence, that piece of evidence commission, leviton and leviton expert rely on things that would not have been obvious to combine. You're just asking us to find a standard ultimate conclusion with respect to motivation that can find not credible. No, that credibility determination is not something that we can make, is it? No, we are not talking about credibility. Even if his statement that those two references to exactly reach that method is right, it's credible. That we have no relevance to the obviousness that added to the claim one because under Frank Lee John Deere's framework, you're looking into the different self-prior and the claim language itself. The claim one does not require any specific research method. Maybe that has some relevance to the tenant claims, but has no relevance with respect to claim one. So, in the December conclusion that it's not obvious, has no support, no relevant sector report here. Just think about, you know, if you need to find a sweet partner for the same time. We would like to find the claim one would be obvious, even if it does not work. So, we would like to make instructions on the vision theory that connects and then find no bias of the definition figures that we would be using. Thank you. We thank all five for helping us move around and we would like to give it to the case for a minute.
and this time Mr. May, you start off. Just to be clear, now we're exclusively on the 809. Please, the Court, this appeal, as you said, involves the 809 patent. Hoan would like this Court to reverse the commission's finding of violation with respect to at least three issues first. If the Court adapts Hoan's claim construction for the term petition to electrically connect, then all those claim would be invalid for non-independent, non-independent and not infringed. Here, I think the part is agree that this claim should be unindeggious and should be construed according to its claim and ordering meaning, but deferred to what plain meaning is. Now, the commission and Hoan argue, this term, of the commission and the谋ton argue, this term should be construed as so as to be capable of electrically connecting while Hoan argue this term should be in a certain position or in place too. In an essence, there's no dispute with respect to the first portion of the commission's name construction, which states situated so as to, and Hoan does have a problem with commission's insertion of the words capable into the meaning of this term. So if you look at the plain meaning still, it's very clear talking about a position. So think about a woman like a jaw bridge. When jaw bridge closes, cars can go cross bridge. When the jaw bridge opens, cars cannot, you're just like electrical current cannot go cross. So plain meaning is very clear, this is the structural limitation talking about a position and nothing in the claim or in the specification talks about capability with respect to this term. Well, you're actually reading, I mean, at the commission noted, you'd be reading the phrase positions two out of the claim. You're essentially saying they have to be electrically connected. Right? That's not correct, Your Honor, because we are talking about structural limitation here. There are the reasons for conditions. Even the subsequent claim limitation, claim one, where talks about a mixture, having a first position, second position. So it talks about specific structural limitation, where the jaw bridge or mobile bridge in this pattern will be at. So it's a structural limitation. We don't see that we read that those two words out of the plain at all. And furthermore, if electricity is not connected, there would be no electrical connection anyway. So therefore, multiple reasons. All we argue based on claim meaning should be considered as situated so as to, or in a certain position, or being placed to, but where the capability coming from, it's not supporting the claim or in the specification. And if we look at prosecution history, here we're not arguing in prosecution disclaimer here at all. We just know to the court that, there are people that have wanted to claim to stay capable. They knew how to do it. They did that before. There's no explanation in the prosecution history as to why they changed the language. That's correct. That's what we are not arguing in the disclaimer at all. We are arguing that prosecution history supports any consistent with common claims and instructions that claim meaning of this term is in a certain position or being placed to. Right. The misinterpret of logic, and that's what it says specifically, that it would be possible to have it in a trip and a recess stay at the same time. That's correct. And if you want to fill in the art, would understand that that's not what's intended. That's correct. And how is your construction not effectively proposing that? That's correct. That's actually our point. Because the party did not dispute under one claim in the construction, the device, the claim one, and all other claim would be, I mean, would be inoperable. But according to the American case, when the claim, this bit of claim, can't be used, the court cannot reject claims to make the claims operable. So essentially here, I think the focus, we need to focus on- Yes, I mean, essentially your claim construction invalidates these claims in a second, right? That's correct. Right. Okay. Assuming we don't agree with the claim construction, what do you have left on your obviousness, the facts? Right. And that goes to my second point. The claim one is invalid over Mark Kuh and the servo. And here, the claim one is important because the levitin is certain many claims. Even the court finds the claim one invalid. The levitin only is the best in the industry with step to claim one. Then there will be no violation of section 237. Here, it's undisputed that the combination of Mark Kuh and the servo teaches all elements of claim one. But I don't understand. The ITC found that you waived your argument and you didn't even address that to us on appeal. Your whole blue brief doesn't address the facts that the ITC held those away, they then went on to say, even if there's not a waiver, we reached the following conclusion, but they expressly held that there was a waiver. So by failing to address it, it seems to me you waived the ability to even challenge obviousness. And you all know we didn't see the information that waiver issue. But in effect, when we argue, we want to invalid over Mark Kuh and the servo, I do not believe that we waived that issue at all. But the ITC found you did. Whether you, if you didn't think you waived it, you should have said that in your blue brief. And you didn't. The issue that you're appealing is the ITC's conclusion that you waived an argument and yet you totally failed to address whether you did or did not waive it in your blue brief. You want to bet the reading of ITC's opinion is not as clear. Even ITC did not argue that, how I waived that argument, ITC is open to this appeal. So there is ambiguity, I think that, that there was a possibility, there was argument about waiver, but ITC went on to talk about substance, the merits of invalidate defense. So you were saying I can't be waived the waiver? No, no. Sorry, you're on. I'm just saying ITC's commission opinion is not clear as to the waiver point. Therefore, even ITC's opening brief, ITC's counsel did not argue forever. It says we find that the tromone respondent argument to the ALJ concerning the involvability of the 809 patent depended upon claim constructions that will rejected by the ALJ. Oh, am I reading the wrong card? Hold on, I'll read the wrong card. Oh, sure. The ALJ determines that the tromone respondent provided no obviousness arguments for the 809 other than arguments based on their own construction of the claim term position to electrically connect. Because the ALJ rejected the tromone respondent of construction, he found familiar respondent did not present a clear and convincing evidence that the 809 patent was invalid. Is that the holding? I'm missing it. You knew I had the right place? You're on the page number? Sure. A65 and 66. I think from A65, A66, the commission just described what it was. What it was, argued before the ALJ in A67, commission did say tromone respondent argument largely to be an own upon claim construction that will rejected by the ALJ. And the following sentence does not talk about wave energy at all. About page 67 where it says, you're right, it doesn't use the word wave, but we find on page A65 and tromone respondent arguments to the ALJ can train involuntarily defended upon claim constructions that were rejected by the ALJ. So, as a matter of fact finding, they've characterized your argument as being limited to obviousness under your claim construction only. You're on an actual discreet with that point, because even you're reading A67 talks about largely dependent upon claim construction. And there's notice view that tromone, which is what I call as one's opponent here, did present arguments about immolidity forward combination of the mark when the solve of. The point you're on and make is this particular paragraph is not clear as to the wave energy. Even permission is only an opening brief that not to address wave at all. So, I know we would. Well, I guess you're saying this on page 67. It's a little unclear to me, but the second sentence, however, so the commission's on this, it largely dependent on the claim construction that was rejected, but even if it didn't and went on to prove that. So, that's kind of, I don't know what it is. It's not turning the holding or whether it's an observation. Right. You're on an annual would be. Can you know, we argue we were at all. I agree with you, you're on a here. But the point I am trying to make is this particular paragraph is not clear. We are fair to find a waiver based on unclear finding here, along and furthermore, the commission's on opening brief does not talk about waiver at all. I know Leverton argued about waiver, but that's not commission's, commission's position. At this, based on commission's opening brief. All right. So, even if we assume that your obvious misarguments did not depend solely on your claim construction, that's the commission's rejected and the ALJ rejected. Don't you have other problems with your obvious misargument in the sense that the commission specifically found that your own expert admitted that it would be very difficult to undertake the combination that you're proposing and in fact, that the commission found that in combination with the your opponent's expert testimony was sufficient to allow the ALJ to conclude that there was no motivation to combine. You know, I don't believe that respondents, our expert, ever testified that it would be difficult to combine those two references. In fact, Leverton's own expert, but considered a trial, and of course, even a cross-examination that with the benefit of the solver would be very easy to modify a month cool to practice claim one day on that. Well, I mean, I have a little difficulty with that because your presentation and the briefs, and I think the other side, for calls you on this, is sort of taking some of the testimony that seems out of context. And so, I don't reach reading the testimony of the entirety. I don't reach the same conclusion you necessarily reach. Because I think there are other aspects where he's quite clear that he doesn't agree with you on the obvious misconclusion. Am I reading the record in your view? Do you know what I'm talking about? Yeah, I understand you're on it. Leverton's expert did reach a conclusion that if not obvious, if not obvious for one's hearing the art to combine two references, but when counsel for Hong-An talks through each element, with Leverton's expert, Leverton expert, considered that with the benefit of the solver, it will be obvious to combine. But now let's take a while to get there. Even the solver itself provides motivation to combine. Leverton considered in their briefs that the inventors, the solver in vigorous came up with the solution of three isolated conjectures. Essentially, the solver talks about simply separate loads from user loads in a priori device, such as Mark Kus device. So in a way, in the priori device like Mark Kus device, you have one single metal piece that talks to load terminal and user load terminal. So all the solver talks about is just separate that one metal piece into two pieces. Therefore, the combination here is very simple. And the combination represents no more than a mere predictable use of prior elements. All right. Well, your expert says this is how you'd have to do the combination. You'd have to separate the second conductor pair of Mark Kus into two distinct pairs of electrical conductors, but electrically isolated from each other and connected to a load and a user receptacle respectively. And that is specifically what both the December and the commission found was not so simple. I mean, his description was a very complicated description of what would have to occur. And the ALJ, based on Sandberg's description of that being a difficult process, and the commission found that there would not be a sufficient motivation to undertake that exercise. So, you want to turn to a thread at that point. I think there are two different sides of experts testimony here, even Leverton's own expert. Tests by one point would be obvious. Essentially, it would be obvious to combine, and when he reached conclusions, not obvious. But if we take one step back, just look at the solver itself. It's considered by Leverton's briefs that the invention of the solver and the figure came up with the three isolated conductors solution to address the reverse wiring problem in prior devices like Mark Roo. So, even we don't even forget about expert's cash money. The amount of motivated somebody can also be found in the solver itself. So, I mean, under the Supreme Court's holding in K-SART, it's merely a critical use of the prior element, according to its dev-ish functions. There's no argument that anything unpredictable, can't come out of this combination, you're honest. I have one question about the industry before you said that. Your other point is that there was insufficient showing of domestic industry with respect to 809. Does your argument really depend on your underlying assumptions that A and B are under statute under 337, that section A and B require actual manufacturing? That's not correct, Your Honor, because our argument depends on the fact that a prong A and B need expenditure related to domestic manufacturing, doesn't have to be domestic manufacturing activities only. For example, if you get the value of added activities, do you hold B? That was my point. You say that under A and B, you could have a thousand employees, you could have three plans, but if you're not actually manufacturing anything, it's domestically that A and B don't even apply. That's not our position. If you don't manufacture anything, but if you provided value added functions, not just administrative or marketing costs, that would be a pure import of the activities, but for example, you perform warranty services, and the commission questions have found under certain circumstances, even though complaining of manufactured products overseas, but if the method, if activity is related to manufacturing, so all the demand is that trend, that would add it to that value. Like the client control? There could be one idea. There could be one type of activity that can be counted towards domestic industry, but here I think that we need to keep in mind that Laptop had the burden of proof here, and to clearly separate it out, what type of expenditure that can be allocated to domestic industry, what type. Can I ask you that? We can't talk about a lot of the record, because we're not in a position. I have confidential, so I guess I'm just going to ask you a general question, which is, would you characterize your appeal of the commission's decision as being over a question of law rather than a question of fact? I mean, you use this value added. I can't tell whether you're actually taking issue with the standards they applied, with the test they applied, or it's rather whether or not the numbers and the facts they used to justify their conclusion, you think that they are deficient. You know, we actually rely on the arrow based on question of law, but not on the primary, from the related to domestic manufacturing. It's on the allocation by sales methods used by the commission to advocate the maturity of its managers to the paid seven products. And the record, including Lave Town's own witness testimony, shows the entire data update feature since 2008, I couldn't get into details, but since 2008, there was no significant investment on paid seven. So in order for when commission found the manufacturing industry, commission's target certain numbers, those numbers were based on allocation by sales, based on how much sales were for paid seven products, and how much were for paid ten products. So you just say they used the data for the wrong years? Not for the wrong years, that allocation by sales method, that legal method that commission used to find the manufacturing industry is clearly erroneously legal. In certain, in certain, in certain, under certain facts, commission persons did use that allocation by sales method, but here the record does not support allocation by sales at all, because here we are reaching totally offset factual results. But so your challenge to fact finding is allocation by sales is the use consistently by the ITC for a long time. So you're not challenging the methodology you're saying in this case, that methodology shouldn't have resulted in a finding of domestic industry. That's correct. So you're challenging a fact finding. We are trying to fact find the end on top of that, they have the legal incorrect legal method legal standards. No, you're not saying the commission is not permitted to use allocation by sales in cases, are you? Not in this case. In some other cases, maybe allocation by sales method may be used by not in this case. So here, we are looking because you think the facts don't support finding. So you're challenging the facts, you're not challenging the legal standards. In a way it is a mixture of facts and law of humans. Okay. We're well over your time. We're short, not the entirety of the 60 minutes, we originally wanted to claim, but we'll give you two minutes on rebuttal. Which means we're a little over so, some people on the other side will be a little lax, but not much. We'll hear from Mr. Tady. Can you start with a waiver point? Do you use the ITC to the city of the actually found waiver of obviousness arguments except for obviousness arguments directed at their claim construction? Is the commission or the ITC position today that the commission did not affirm that waiver determination? No, no, your honor. Page 67 of the commission's opinion intended to affirm the LJ's waiver determination and the commission's noticed to the party seeking additional briefing specifically wanted to resolve that question. So the fact that the... Why don't you argue that in your rest, Rayson? I can only say that I was responding to the argument made by the... Okay, that's a little more for a response. If he's arguing obviousness when your response being like they did, you know, it's waived. If you're going to stand here and tell me you agree with the 11th and 10th, you should agree with the new brief too. I readily can see the point in that. There you go. All right, now let me move right on. See, sometimes it's for the conceding. And happy to do so. Turning to the claim construction argument with the position to electrically connect, the commission does believe, of course, as noted, that the respondents' argument reads the words were positioned to out of the claims that's not consistent with the description and the classification, which describes the new rule bridge that connects to different configurations of conductors. It is a little weird, isn't it, though, that they take the words capable out and place them something out, and then their proposed construction is capable of. Yeah, I would happily address that if we can look at the bottom. Is it because capable of was originally only limited to one conductor and now that they were meaning to explain that it was all three? No, if we look at the originally presented claim, that appears in the appendix at A01461. And what we see is a claim that describes a completely different aspect of the invention than the issue claim. So we have a first conductor that's capable of being electrically connected to a specific thing, its source. Then we have a second conductor that's capable of being conducted to the load. And a third conductor that's capable of... What page do you send me to? I'm sorry, Your Honor, it's A01461 of the appendix. And then the third conductor in that originally presented claim is capable of being connected to user accessible flux. So by the time we get to the issued claim, we're looking at something else entirely. We're looking at all three conductors capable of being electrically isolated from each other. And at least two of them being connected to the user accessible flux. So we're concerned with a completely different arrangement. And there is no indication in the prosecution history that the reason that this claim was cancelled entirely, this claim was not amended to get to the claim of issued, but it was cancelled entirely. So the patent he pursued a different approach entirely on the invention that it was looking for, mostly focusing on the center latch, not focusing on the configuration of conductors. And I think I heard my counsel, my opponent, Conceed, and I hope correctly, that he's not relying upon prosecution disclaimer. So I'm not sure why it even matters that the claim was originally presented that came to the law. I think the commission's construction was just trying to get at the dispute between the parties, which the ID didn't really resolve, and the dispute between the parties was towering these things, configured in relation to each other. Do they need to be always connected, or do they only need to be positioned so that they can be treated? So the language wasn't simply pulled out in replace with something else, the claim was completely rewritten. That's correct, you know. And I think rewritten with a focus on the center latch, if you look through the entire prosecution history. I'd now like to turn to the obviousness argument. I think that my opponent is arguing to this court that the court should re-way the disputed evidence in the record about whether it would be obvious to combine these references. I think that that would be inappropriate and inappropriate. Activity for this court in the expansion case, the court said that even if some evidence in the record detracts from the commission's conclusion, where the substantial evidence, the supporting commission's determination, it should be affirmed. Oh, wait, I'm confused by what you're saying right now. Obviously this is a question of law. We don't review it for substantial evidence. Are you focusing on motivation to combine, which is a question of fact, and saying there's substantial evidence of commission's finding on that? Yes, your honor. Graham says that those underlying facts are not going to be. Yes, well, I just didn't appreciate that you were focused on individual facts. I thought you were talking about obviousness in general. I totally agree that the obviousness conclusion is a question of law based on underlying factual considerations. My opponent cited the inventor's home thought process as supporting his obvious argument. Well, the inventor came up with the invention. So that, as a matter of law, is legally irrelevant? The central focus on the obviousness determination was motivation, correct? Correct. And didn't Danburg at Leviton Dutchford, at least at one point say it wouldn't be that difficult to combine these things? I don't believe Mr. Sanders said that. I think he said just the opposite. Well, he later came back and said it wouldn't have been obvious, but a prospect of elimination, he talked about it not being that difficult. His prospect of elimination testimony that is relied upon by my opponent, I think, says it would have been obvious in hindsight, then the questioner says, you mean with respect, after you look at the prior art patent, and then he says, yes. Well, that must be an error in its inconsistent with the other testimony that the commission relied upon, because hindsight can't be based on the prior art. Hindsight, by definition, be in cure using the issues hadn't as a guide, as hindsight to arrive at the claims' invention. Do you think Leviton has expert completeness, folks? I think he must have spoken, even if he didn't misread, there is substantial evidence where he unequivocally states that this is difficult to do. Someone wouldn't know how to do it, and the commission credited that testimony. So when there's conflicting testimony about this underlying factual issue of motivations combined, and there is substantial evidence supporting the commission's determination, this courtship for that determination based on that evidence. And with regard to this argument that someone would simply know how to cut conductors and arrive at the claims' invention, that's not at all clear. If we sniff the metal pieces in the manner that my opponent's expert testified that you could do what are you left with? You're left with two floating pieces of metal. There is no evidence in the record about how those conductors should be connected to the rest of the circuit, how they're going to be reset, how they're going to be isolated. That evidence is simply not there. On domestic industry, would you have any questions on that? No, I was going to turn to you. Okay, on domestic industry, would you agree that a hellendous challenge is probably a factual one? I mean, the methodology that you've used, the commission used, seems to be a methodology that has endorsed in many cases. So, a methodology doesn't seem allocation, I failed, to be inherently long. So, would you interpret his argument as limited to a factual challenge? I do, and I think that that was conceded in the briefing that they're not challenging the commission's interpretation of the statute, which would be a legal question. But rather, they believe that the commission erred in relying on some data in support of its determination. And of course, that determination is reviewed by substantial evidence. My opponent, I think is, sorry, my colleague now, who was as wrong before as he is right now, the will that Drought a Thought. Can I ask one last question that our domestic industry, would it be the commission's position that under A and B, if you build a massive plan and put a bunch of people on there, that it doesn't really matter what they do, as long as you've got expenditures and as long as you've got the product being manufactured somewhere? It matters what they do with respect to the articles. So, if it was, all you did was chip it in and then package it and market it with that count? I'm not sure that I can answer that question, but if you build a massive plan and you fill it with engineers that design the articles that are built in another country, I think there's no question that Congress intended that to be domestic industry. Under A and B or under C? Under all three. And I direct the court's attention to the House reports cited in the commission's brief, which says, before we, the ADA, the ADA, no definition, now we're creating a definition, the definition has three parts. And parts A and B are meant to codify pre-existing commission practice, but we are intending all three parts to be broader than pre-existing commission practice. And domestic manufacturing is not required and I think under the legislative history it says under this definition. So it applies to all three parts that are in the order. And there's no temporal requirement or limitation. In other words, if they design this product back in 2000 and now it's being manufactured in China, and now all the people that worked on the original design of the product are now working on design the hamburgers. I mean, nothing to do with it. That still satisfies the domestic problem. I think that this court has looked at the temporal limitation on domestic industry in different contexts, particularly if there's a concern that the industry has gone out of business. For example, I think there's a case about a bankruptcy or a transfer of rights to patents. So I think that there are times when the court and the commission should look at something other than the time the final complaint. But the court and the commission both have to be reasonable about what commercial practice entails. You build a product, you start getting it to market, and you move on to the next product. And we have substantial evidence in the records here cited on page 36 of the commission's brief, that even though these engineers were indeed working on the record shows, working on additional products, they had not left the products that practiced the patent time. They were still involved in that product twice, and I call them those products were still in the cells. So I think that it's important to recognize certain commercial realities, and this is not a case where we see a dwindling or disappearing domestic industry that the court has been concerned about in other cases. Okay. What are we here for? Thank you. We have anything more in the comments. Unless the court has some questions, I'm going to just very briefly accept Mr. Chains invitation to expand on the domestic industry issue just briefly. If you look at A11776 of the joint appendix, it shows the investments Levitton made in 809 Pat in 2010 alone. And I have my clients permission to give the total number here. It's $10.7 million. And it's broken out on that page of the several of the categories. If you look at pages 65 and 66 of our brief equipment five, every one of those categories involved into a category where the commission has found that those types of activities, we continue to met the domestic industry. So with the temporal issue, even if we set that aside, there's $10.7 million just in 2010. And on the temporal issue, if we look at the video games controllers opinion from the commission April 14, 2011, the commission remanded something back to the judge. And this is what they said about the temporal issue. Quote, means the language of the statute, nor the legislative history preclude from consideration, engineering, and research and development investments that precede the issuance of the patent in determining whether a domestic industry exists or is in the process of being established. Indeed, as one A on J has acknowledged, quote, often align share of the research and development costs are incurred before the patents are paid. So that was addressing subsection C. And the commission never got the subsection C here. Actually, if you look at a little farther up in that opinion, it talks about the other portion of the statute as well, I believe, but has to see just so the records clear. C was a dress and was addressed by the Ministry of Law draft. Why the commission didn't reach C. I'm not sure I assume they felt that the A, B, evidence was sufficient. But for some reason, this court thinks the A, B evidence was insufficient. It needs to remand because C was an issue. Evidence was put in on C. There was a finding on C from the Ministry of Law draft. But the bottom line is, I think you can set aside that issue of timing because we have the 2010 numbers here. They're extensive and they all break out into categories as the commission's sound count, such as quality control, testing, engineering, et cetera. So once you have any questions, I have nothing further. Thank you. I'm going to remind the court who here got talking about the server, not talking about it or the Eto 9 pattern. So the prior pattern, the event for the prior patterns, understanding thousand error here and specifically, Mr. Sanberg, considered with that hindsight, and he will talk about hindsight, which he was talking about the server 558 pattern. Well, that's his, yeah, you mean, that's the thing. Yeah, but that's followed is that not by kind of a detailed answer that really distances himself and makes clear that that's not really what he meant. Right. It's not a fair assessment of the record. That's correct. And here's the explanation. Why is not all this combined for that Mark Kuhn-De-Salvo teach newspapers explosive research? That is irrelevant. Even under substance evidence, that piece of evidence commission, leviton and leviton expert rely on things that would not have been obvious to combine. You're just asking us to find a standard ultimate conclusion with respect to motivation that can find not credible. No, that credibility determination is not something that we can make, is it? No, we are not talking about credibility. Even if his statement that those two references to exactly reach that method is right, it's credible. That we have no relevance to the obviousness that added to the claim one because under Frank Lee John Deere's framework, you're looking into the different self-prior and the claim language itself. The claim one does not require any specific research method. Maybe that has some relevance to the tenant claims, but has no relevance with respect to claim one. So, in the December conclusion that it's not obvious, has no support, no relevant sector report here. Just think about, you know, if you need to find a sweet partner for the same time. We would like to find the claim one would be obvious, even if it does not work. So, we would like to make instructions on the vision theory that connects and then find no bias of the definition figures that we would be using. Thank you. We thank all five for helping us move around and we would like to give it to the case for a minute