We have five cases on calendar this morning to related happen cases. Case from Board of Contract Appeals, the government employee case, and the last which has been submitted on the breach is frankly from district court and the court of federal plans. First case is somewhat misnamed since it's the first case, not the ultimate. It's ultimate point of versus Nintendo 2015 1297 Mr. Rogers. Okay, please support. My name is Charles Rogers from the law firm of Conley Rose and I have here with me today my colleague Tom Warden from Conley Rose Law firm. Have you pretended that construction for any censor anywhere? Yes. We have something at page 53. Is that it? I'm not sure about the page number but my notes. From my notes we have ordinary meaning and we propose the ordinary meaning as a sensing device able to capture an image. And the site to that and the joint epinix is 98. Why isn't the hand held device pointing device to record 20? The reason why is you know there's a question as to whether or not this we I mean we know where direct county 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 line of the specification. And the claim construction rules that we use to determine which side of the line it is is lexicography when a claim term is explicitly defined in the spec and disavow or disclaimer. And this is not a situation of lexicography because hand held device. That's not correct. I mean under Phillips specifications always relevant and you look to the specification to see whether it implicitly defines the term. And there's a pretty good argument here that the specification suggests the direct point is the way to go and that indirect is disfavorable. Well, the argument from Nintendo is is not lexicography because hand held device is not defined. It's I understand it's it's a disavow argument. It's a disclaimer either one of those. It doesn't have to be either one of those under Phillips
. It can be you look to the specification under all circumstances to see what the term means and you look at the specification here and there's an implicit definition of the terms by favoring direct point. And how I would characterize that is like the court did the district court is the gist of the invention or the invention as a whole. And the way I look at it is you you look to where it came from and you look in the spec. There is discussions of direct pointing indirect pointing and mixed direct and indirect. They're put into counter records described as less natural less accurate and slower in the past in 17 on. It's criticized like you said. And so is direct pointing criticized. And so what we should do is look to specifically what the criticism is of the indirect pointing is it indirect pointing itself or is it a particular aspect of indirect pointing. And what you're referring to is a column two of the patent lines 33 to 37. And where it says that direct pointing is less natural to the human operators such systems. You look at the preceding sentence that says give some reasons and it says and hence less natural to the human operators of such system. Well, what's the reason why is it less natural and what it says starting at line 33
. It says and this is criticism of the group of part patents that are classified as indirect pointing. And the criticism is that there is no information on the actual position or presentation display 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 us reading the claim to require direct pointing. And the answer is no. What it requires is that you read the claims to have this requirement, to not to have information on the actual position of the presentation display. And that's in the claims not at the handheld device. It's in the claims, for example, claim five is one example where in the preamble it says the calibration points are provided in predetermined relationship to the image. So this criticism of indirect pointing makes its way into the claims not where the handheld device is. So that's why direct pointing shouldn't be read into the handheld device. And we have enough requirements in the claim to coincide with this criticism of indirect pointing. That's how the inventor handled it. The inventor classified objects into prior art into direct pointing, indirect pointing and mix
. And they knew what they knew what those claims were. They specifically define them. And there's a reason they didn't use those claims then in the claims, specifically didn't use them. So they shouldn't read those in, especially when you have not only direct pointing and indirect pointing, you have mix. So there's this gray area. And so and and mixed, direct and indirect. And then you have the issue of once you define something as direct pointing, how direct does it have to be? If we don't agree with you on that, there's judgment of non-apprentice because these claims doesn't use direct pointing. And then do the other claims constructions matter? The image sensor claim construction matters. And the non-apprenticement is not an infringement. Well, I'm sorry, I misunderstood you. I thought you meant, I thought you meant to say if you read, if you read direct pointing into the claims, don't reverse that claim construction. There's still a question of whether or not the device infringes under that interpretation
. So if of course if you find that there's no infringement, if you find that the claim construction requires direct pointing and that there's no infringement because of that, then no, you don't reach the other issues. But our position is and so let's go with the assumption that the claim construction is not corrected to remove direct pointing. Let's say you find that direct pointing is required in the claims. Then the question is what's direct pointing? And even if direct pointing is required, there's still infringement because the Wii remote is still a direct pointing device. If you look at directly pointing at something else, when a user uses the Wii remote, they point at the screen. They point at the object on the screen that they're trying to control. That is. I'm sorry? One might say that you were just direct pointing. And I was pointing in between the judges, not to be rude to point directly at a person. But yes, that is direct pointing. And that's and these motions that I'm using is what my children do when they play the Wii. They point at the screen
. They point at what they're trying to control on the screen. And that's direct pointing. 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 is infringement. If you look at the court ruling, the Washington's court ruling at its A37 and the joint epinix, the court starts out by describing the configuration of the Wii system when it's configured according to the instructions, according to the user manuals, where you put the sensor bar directly above or below the TV screen. And you tell the Wii system, the user tells the system where the sensor bar is located. So you know there's this direct relationship between the display and the sensor bar and the calibration points. And it says, the court says that the sensor bar is placed directly above or below the screen as directed in the operations manual. The remote will pick up the LED lights when it is aimed at the screen and the approximate intersection of the physical point of aim with the screen, giving the user the impression of direct pointing. That's direct pointing. But then there's a criticism. It says, but the Wii does not collect or 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 it direct pointing if the sensor bar is off to one side? If the sensor bar is off to one side, what you're doing is you're taking the accused of ice and you're configuring it in a manner that is contrary to the instructions. Does it work? Does it work? If you put it to the side? This is trying to relate it, right? You're changing the relationship of the calibration points, contrary 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 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 configured the product, contrary to the way it's supposed to be used, contrary to the way the manufacturer tells it to be used, and 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's still infringes in the manner that it's designed to be constructed. And if you look further, you can continue or you can save it. The only thing I wanted to point out was that if you take a look at what issues are remaining in the case, I wanted to make sure that you understood that if you do go through the direct pointing in the image sensor and correct them or at least find that there's genuine issues of material back even under the claim constructions, that the other claim instruction issue is data of the calibration points
. That's briefed at pages 39 through 42 of our case. That's probably of our brief 21 pattern, right? Data of the calibration points actually is in the 729 pattern as well. That's why I wanted to point it out, that it's still an issue in the case. It's, would you dismiss the claims under 321? On the 321. But this data of the calibration points is in the 729 pattern as well. And it would be an important issue. If there is a remand, it'd be an important issue. And we ask the each of our exercises your discretion to correct that claim instruction as well. I'll reserve the rest of my time for that. I'm going to do that for you, Mr. Rogers. Mr
. Rogers, do you want to do that for you? Yes, sir. Thank you, Your Honor. And on the point that Mr. Rogers was just talking about, the suggestion that there were genuine issues. Those direct points are a fine direct point. We think there's no direct point here. We need your authorities, not your point. But we don't believe that there are genuine issues of material fact. And it's important to recognize that the description of the operation of the Wii system that's contained in the summary judgment order was not contested by ultimate pointer in their briefs. They did not identify anything said by the district court describing the operation of the Wii that they say is erroneous. And so there just isn't anything that the district court based the summary judgment on that would create a genuine issue of material fact. And on the definition of direct pointing, we believe that there's both an implicit definition of hand held device and hand held pointing device to include direct pointing and definition by disavowable, disavowable by disparagement
. There's 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 the prior art discussion, there is complete and thorough disparagement of embodiments of any kind of prior art that does not include direct pointing. There's also disparagement of the kind of features that are contained in the Wii system. So if you look at, really, column two, then X301, 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 Wii system. The specification talks about patents showing pointing devices that are measured with respect to some coordinate system that's line 26 in column two. And then, it talks about coordinate systems that have several different approaches, including infrared devices. And that's how the Wii system works. There are invisible infrared lights in this sensor bar. It's the bar that's sensed by the Wii remote. And so that's the kind of coordinate system that the prior art discussion is talking about. And then, the specification says that those coordinate systems may be positioned close to the display. So the sensor bar can be above or below, and when it's below, it can be a range of distances. If the screen is here, it can be here, or someplace in front of it. But it's positioned relatively close. And then, the specification describes all of those prior art items, including the Wii system as inherently indirect. It doesn't call out the Wii system by name, but it certainly describes exactly the kind of system. And so we think that there are all the reasons why you should pay attention to the specification and say that this is an indirect pointing system that is not covered by the claims
. And then, it talks about coordinate systems that have several different approaches, including infrared devices. And that's how the Wii system works. There are invisible infrared lights in this sensor bar. It's the bar that's sensed by the Wii remote. And so that's the kind of coordinate system that the prior art discussion is talking about. And then, the specification says that those coordinate systems may be positioned close to the display. So the sensor bar can be above or below, and when it's below, it can be a range of distances. If the screen is here, it can be here, or someplace in front of it. But it's positioned relatively close. And then, the specification describes all of those prior art items, including the Wii system as inherently indirect. It doesn't call out the Wii system by name, but it certainly describes exactly the kind of system. And so we think that there are all the reasons why you should pay attention to the specification and say that this is an indirect pointing system that is not covered by the claims. We think that 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 Wii system that there is anything that is disputed. There's nothing that's disputed about the operation of the Wii system to give rise to a genuine, issue of material fact. Now, on 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 sensed by the image sensor. And the reason for that is that ultimate pointer wants to interpret the claims in such a way that the image sensed is one that the Wii system simply cannot sense. It's one that is a different image from the image that's referred to throughout the claims. Now, there's no dispute. Ultimate pointer hasn't disputed that the Wii remote is incapable of sensing the computer-generated image. It's got this infrared filter on the front so that the sensor inside the Wii 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 asserted in the 729 patent, and they are claims that, 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 image is expressly the computer-generated image
. We think that 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 Wii system that there is anything that is disputed. There's nothing that's disputed about the operation of the Wii system to give rise to a genuine, issue of material fact. Now, on 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 sensed by the image sensor. And the reason for that is that ultimate pointer wants to interpret the claims in such a way that the image sensed is one that the Wii system simply cannot sense. It's one that is a different image from the image that's referred to throughout the claims. Now, there's no dispute. Ultimate pointer hasn't disputed that the Wii remote is incapable of sensing the computer-generated image. It's got this infrared filter on the front so that the sensor inside the Wii 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 asserted in the 729 patent, and they are claims that, 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 image is expressly the computer-generated image. In some instances, it's said in image that ultimate pointer wants to say that a system that can't see the computer-generated image and can't gather data regarding that computer-generated image is nevertheless a system that has an image sensor within the terms of this patent. And that's just not a reasonable reading of the claims of this patent. It's something that we believe that Judge Lasnik and the Western District of Washington probably recognized. So for all of those reasons, we think that there is just simply no infringement, no direct pointing, no image that is properly sent by the image sensor. And you don't have to reach any other claim construction issues. Do you like me to address any other points? If you have another point to read, no one ever gets penalized by giving up this time. No, you're honor. If there are no other points, I believe that non-impranjement would resolve the issues. Thank you. What does that mean? What way do we mean by that? Does that mean that? It would resolve the infringement issues, you're honor. But there's the indefiniteness. Yes, there is the indefiniteness, the IPXL issue, and I'd be happy to address that
. In some instances, it's said in image that ultimate pointer wants to say that a system that can't see the computer-generated image and can't gather data regarding that computer-generated image is nevertheless a system that has an image sensor within the terms of this patent. And that's just not a reasonable reading of the claims of this patent. It's something that we believe that Judge Lasnik and the Western District of Washington probably recognized. So for all of those reasons, we think that there is just simply no infringement, no direct pointing, no image that is properly sent by the image sensor. And you don't have to reach any other claim construction issues. Do you like me to address any other points? If you have another point to read, no one ever gets penalized by giving up this time. No, you're honor. If there are no other points, I believe that non-impranjement would resolve the issues. Thank you. What does that mean? What way do we mean by that? Does that mean that? It would resolve the infringement issues, you're honor. But there's the indefiniteness. Yes, there is the indefiniteness, the IPXL issue, and I'd be happy to address that. We believe that Judge Lasnik was completely correct in his interpretation of the claims as mixing both a method claim, a method step into an apparatus claim. And he 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 and a requirement of an action transmitting frames in an apparatus claim, then it's indefinite under IPXL. Here we had a generating data step. Now, there's a tiny difference between the Rembrandt case. That's not generating as a method. This is an apparatus claim. Yes, Your Honor, it is an apparatus claim. Isn't the microprocessor enhancement case relevant here? Well, it is relevant, but it provides a distinction. Now, the microprocessor enhancement case said that if there is, if it's clear that the action step is merely a capability of performing the action, then it's not an IPXL problem. There is no indefiniteness. There is no explanation in microprocessor enhancement for that
. We believe that Judge Lasnik was completely correct in his interpretation of the claims as mixing both a method claim, a method step into an apparatus claim. And he 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 and a requirement of an action transmitting frames in an apparatus claim, then it's indefinite under IPXL. Here we had a generating data step. Now, there's a tiny difference between the Rembrandt case. That's not generating as a method. This is an apparatus claim. Yes, Your Honor, it is an apparatus claim. Isn't the microprocessor enhancement case relevant here? Well, it is relevant, but it provides a distinction. Now, the microprocessor enhancement case said that if there is, if it's clear that the action step is merely a capability of performing the action, then it's not an IPXL problem. There is no indefiniteness. There is no explanation in microprocessor enhancement for that. I know that's true here. Well, Your Honor, because we believe that the microprocessor enhancement case was based on the fact that it was a means-plus-function clause, that there were Section 112 paragraph F clauses. And the microprocessor says that. I mean, there is no explanation in the language of the case, Your Honor, for why it's clearly a- Well, it says it's a capability. It says it clearly a capability, you're right. And there's no explanation. We think the reason most likely is because it's a means-plus-function clause. And so it's a further limitation on a means-plus-function clause. That's our review of the microprocessor. Well, Your Honor, it's the way that I can reconcile microprocessor enhancement with the re-brand. It's the way that I can reconcile microprocessor enhancement with re-brand. And I think the two cases should be reconciled, and that's the best way to do it
. I know that's true here. Well, Your Honor, because we believe that the microprocessor enhancement case was based on the fact that it was a means-plus-function clause, that there were Section 112 paragraph F clauses. And the microprocessor says that. I mean, there is no explanation in the language of the case, Your Honor, for why it's clearly a- Well, it says it's a capability. It says it clearly a capability, you're right. And there's no explanation. We think the reason most likely is because it's a means-plus-function clause. And so it's a further limitation on a means-plus-function clause. That's our review of the microprocessor. Well, Your Honor, it's the way that I can reconcile microprocessor enhancement with the re-brand. It's the way that I can reconcile microprocessor enhancement with re-brand. And I think the two cases should be reconciled, and that's the best way to do it. I mean, the language in re-brand very closely matches the language here. If we say that microprocessor enhancement goes in the opposite direction, then I guess it will be up to this court to resolve that difference. But the two cases can be reconciled by the fact that microprocessor enhancement was a means-plus-function clause. And here there is obviously no means-plus-function clause. There's no four kind of language. There's no capability kind of language. So we think the district court was correct. Thank you, Mr. Radney. Thank you, Your Honor. Mr. Rodgers, here's two and a half minutes for bottle time
. I mean, the language in re-brand very closely matches the language here. If we say that microprocessor enhancement goes in the opposite direction, then I guess it will be up to this court to resolve that difference. But the two cases can be reconciled by the fact that microprocessor enhancement was a means-plus-function clause. And here there is obviously no means-plus-function clause. There's no four kind of language. There's no capability kind of language. So we think the district court was correct. Thank you, Mr. Radney. Thank you, Your Honor. Mr. Rodgers, here's two and a half minutes for bottle time. Yes. Two points. I wanted to discuss briefly the image sensed and IPXL. The arguments I'm hearing are that the related to the court's finding that the image sensor, the image in it does not include the LED lights from the Wii sensor bar. And to look to see whether or not that's the case, you look in the claims and the specification and look at the purpose of the image sensor. And in the claims, claim five, and is an example that talks about the purpose of the image sensor to be generating data, the calibration points. So it is talking about points, points of light, like an LED from the Wii sensor bar. And then another example is in the specification is figure 18 in the corresponding description in the spec where it talks about calibration points and light spots. So it's not just an image, like a picture of an object that you see on a screen. And it also includes points of light and specifically calibration points. The IPXL issue, the calibration points are the corners of the image, I think, now. They are in the, they are described in the spec to be either the corner of the image or they're also described when they list through some prior art and examples of calibration points
. Yes. Two points. I wanted to discuss briefly the image sensed and IPXL. The arguments I'm hearing are that the related to the court's finding that the image sensor, the image in it does not include the LED lights from the Wii sensor bar. And to look to see whether or not that's the case, you look in the claims and the specification and look at the purpose of the image sensor. And in the claims, claim five, and is an example that talks about the purpose of the image sensor to be generating data, the calibration points. So it is talking about points, points of light, like an LED from the Wii sensor bar. And then another example is in the specification is figure 18 in the corresponding description in the spec where it talks about calibration points and light spots. So it's not just an image, like a picture of an object that you see on a screen. And it also includes points of light and specifically calibration points. The IPXL issue, the calibration points are the corners of the image, I think, now. They are in the, they are described in the spec to be either the corner of the image or they're also described when they list through some prior art and examples of calibration points. They are, they do include points outside the image off to the side of the screen. And that is precisely what's done with the Wii 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 the screen. So the first is the pattern show that they're not related to the calibration directly related to the image. The calibration points, the pattern shows that the calibration points are directly related to the image. And that's what's recited, for example, in the preamble of claim five. And so that's what we have in the Wii where you have the sensor bar above or below, directly adjacent to the display and the computer, the console knows the relationship. And so it's the same thing as having a calibration point on the screen itself on the display versus adjacent to it when you know what the relationship is. Before you sit down, I just a comment on your confidentiality, Mark, which seemed to me to be quite improper. You are marking his confidential and here public user manuals for the Wii. I cannot understand how that could possibly be confidential. I agree
. They are, they do include points outside the image off to the side of the screen. And that is precisely what's done with the Wii 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 the screen. So the first is the pattern show that they're not related to the calibration directly related to the image. The calibration points, the pattern shows that the calibration points are directly related to the image. And that's what's recited, for example, in the preamble of claim five. And so that's what we have in the Wii where you have the sensor bar above or below, directly adjacent to the display and the computer, the console knows the relationship. And so it's the same thing as having a calibration point on the screen itself on the display versus adjacent to it when you know what the relationship is. Before you sit down, I just a comment on your confidentiality, Mark, which seemed to me to be quite improper. You are marking his confidential and here public user manuals for the Wii. I cannot understand how that could possibly be confidential. I agree. These were designations made by the Nintendo. Okay. Thank you. Mr. Rogers, we'll take the case on the slide.
We have five cases on calendar this morning to related happen cases. Case from Board of Contract Appeals, the government employee case, and the last which has been submitted on the breach is frankly from district court and the court of federal plans. First case is somewhat misnamed since it's the first case, not the ultimate. It's ultimate point of versus Nintendo 2015 1297 Mr. Rogers. Okay, please support. My name is Charles Rogers from the law firm of Conley Rose and I have here with me today my colleague Tom Warden from Conley Rose Law firm. Have you pretended that construction for any censor anywhere? Yes. We have something at page 53. Is that it? I'm not sure about the page number but my notes. From my notes we have ordinary meaning and we propose the ordinary meaning as a sensing device able to capture an image. And the site to that and the joint epinix is 98. Why isn't the hand held device pointing device to record 20? The reason why is you know there's a question as to whether or not this we I mean we know where direct county 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 line of the specification. And the claim construction rules that we use to determine which side of the line it is is lexicography when a claim term is explicitly defined in the spec and disavow or disclaimer. And this is not a situation of lexicography because hand held device. That's not correct. I mean under Phillips specifications always relevant and you look to the specification to see whether it implicitly defines the term. And there's a pretty good argument here that the specification suggests the direct point is the way to go and that indirect is disfavorable. Well, the argument from Nintendo is is not lexicography because hand held device is not defined. It's I understand it's it's a disavow argument. It's a disclaimer either one of those. It doesn't have to be either one of those under Phillips. It can be you look to the specification under all circumstances to see what the term means and you look at the specification here and there's an implicit definition of the terms by favoring direct point. And how I would characterize that is like the court did the district court is the gist of the invention or the invention as a whole. And the way I look at it is you you look to where it came from and you look in the spec. There is discussions of direct pointing indirect pointing and mixed direct and indirect. They're put into counter records described as less natural less accurate and slower in the past in 17 on. It's criticized like you said. And so is direct pointing criticized. And so what we should do is look to specifically what the criticism is of the indirect pointing is it indirect pointing itself or is it a particular aspect of indirect pointing. And what you're referring to is a column two of the patent lines 33 to 37. And where it says that direct pointing is less natural to the human operators such systems. You look at the preceding sentence that says give some reasons and it says and hence less natural to the human operators of such system. Well, what's the reason why is it less natural and what it says starting at line 33. It says and this is criticism of the group of part patents that are classified as indirect pointing. And the criticism is that there is no information on the actual position or presentation display 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 us reading the claim to require direct pointing. And the answer is no. What it requires is that you read the claims to have this requirement, to not to have information on the actual position of the presentation display. And that's in the claims not at the handheld device. It's in the claims, for example, claim five is one example where in the preamble it says the calibration points are provided in predetermined relationship to the image. So this criticism of indirect pointing makes its way into the claims not where the handheld device is. So that's why direct pointing shouldn't be read into the handheld device. And we have enough requirements in the claim to coincide with this criticism of indirect pointing. That's how the inventor handled it. The inventor classified objects into prior art into direct pointing, indirect pointing and mix. And they knew what they knew what those claims were. They specifically define them. And there's a reason they didn't use those claims then in the claims, specifically didn't use them. So they shouldn't read those in, especially when you have not only direct pointing and indirect pointing, you have mix. So there's this gray area. And so and and mixed, direct and indirect. And then you have the issue of once you define something as direct pointing, how direct does it have to be? If we don't agree with you on that, there's judgment of non-apprentice because these claims doesn't use direct pointing. And then do the other claims constructions matter? The image sensor claim construction matters. And the non-apprenticement is not an infringement. Well, I'm sorry, I misunderstood you. I thought you meant, I thought you meant to say if you read, if you read direct pointing into the claims, don't reverse that claim construction. There's still a question of whether or not the device infringes under that interpretation. So if of course if you find that there's no infringement, if you find that the claim construction requires direct pointing and that there's no infringement because of that, then no, you don't reach the other issues. But our position is and so let's go with the assumption that the claim construction is not corrected to remove direct pointing. Let's say you find that direct pointing is required in the claims. Then the question is what's direct pointing? And even if direct pointing is required, there's still infringement because the Wii remote is still a direct pointing device. If you look at directly pointing at something else, when a user uses the Wii remote, they point at the screen. They point at the object on the screen that they're trying to control. That is. I'm sorry? One might say that you were just direct pointing. And I was pointing in between the judges, not to be rude to point directly at a person. But yes, that is direct pointing. And that's and these motions that I'm using is what my children do when they play the Wii. They point at the screen. They point at what they're trying to control on the screen. And that's direct pointing. 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 is infringement. If you look at the court ruling, the Washington's court ruling at its A37 and the joint epinix, the court starts out by describing the configuration of the Wii system when it's configured according to the instructions, according to the user manuals, where you put the sensor bar directly above or below the TV screen. And you tell the Wii system, the user tells the system where the sensor bar is located. So you know there's this direct relationship between the display and the sensor bar and the calibration points. And it says, the court says that the sensor bar is placed directly above or below the screen as directed in the operations manual. The remote will pick up the LED lights when it is aimed at the screen and the approximate intersection of the physical point of aim with the screen, giving the user the impression of direct pointing. That's direct pointing. But then there's a criticism. It says, but the Wii does not collect or 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 it direct pointing if the sensor bar is off to one side? If the sensor bar is off to one side, what you're doing is you're taking the accused of ice and you're configuring it in a manner that is contrary to the instructions. Does it work? Does it work? If you put it to the side? This is trying to relate it, right? You're changing the relationship of the calibration points, contrary 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 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 configured the product, contrary to the way it's supposed to be used, contrary to the way the manufacturer tells it to be used, and 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's still infringes in the manner that it's designed to be constructed. And if you look further, you can continue or you can save it. The only thing I wanted to point out was that if you take a look at what issues are remaining in the case, I wanted to make sure that you understood that if you do go through the direct pointing in the image sensor and correct them or at least find that there's genuine issues of material back even under the claim constructions, that the other claim instruction issue is data of the calibration points. That's briefed at pages 39 through 42 of our case. That's probably of our brief 21 pattern, right? Data of the calibration points actually is in the 729 pattern as well. That's why I wanted to point it out, that it's still an issue in the case. It's, would you dismiss the claims under 321? On the 321. But this data of the calibration points is in the 729 pattern as well. And it would be an important issue. If there is a remand, it'd be an important issue. And we ask the each of our exercises your discretion to correct that claim instruction as well. I'll reserve the rest of my time for that. I'm going to do that for you, Mr. Rogers. Mr. Rogers, do you want to do that for you? Yes, sir. Thank you, Your Honor. And on the point that Mr. Rogers was just talking about, the suggestion that there were genuine issues. Those direct points are a fine direct point. We think there's no direct point here. We need your authorities, not your point. But we don't believe that there are genuine issues of material fact. And it's important to recognize that the description of the operation of the Wii system that's contained in the summary judgment order was not contested by ultimate pointer in their briefs. They did not identify anything said by the district court describing the operation of the Wii that they say is erroneous. And so there just isn't anything that the district court based the summary judgment on that would create a genuine issue of material fact. And on the definition of direct pointing, we believe that there's both an implicit definition of hand held device and hand held pointing device to include direct pointing and definition by disavowable, disavowable by disparagement. There's 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 the prior art discussion, there is complete and thorough disparagement of embodiments of any kind of prior art that does not include direct pointing. There's also disparagement of the kind of features that are contained in the Wii system. So if you look at, really, column two, then X301, 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 Wii system. The specification talks about patents showing pointing devices that are measured with respect to some coordinate system that's line 26 in column two. And then, it talks about coordinate systems that have several different approaches, including infrared devices. And that's how the Wii system works. There are invisible infrared lights in this sensor bar. It's the bar that's sensed by the Wii remote. And so that's the kind of coordinate system that the prior art discussion is talking about. And then, the specification says that those coordinate systems may be positioned close to the display. So the sensor bar can be above or below, and when it's below, it can be a range of distances. If the screen is here, it can be here, or someplace in front of it. But it's positioned relatively close. And then, the specification describes all of those prior art items, including the Wii system as inherently indirect. It doesn't call out the Wii system by name, but it certainly describes exactly the kind of system. And so we think that there are all the reasons why you should pay attention to the specification and say that this is an indirect pointing system that is not covered by the claims. We think that 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 Wii system that there is anything that is disputed. There's nothing that's disputed about the operation of the Wii system to give rise to a genuine, issue of material fact. Now, on 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 sensed by the image sensor. And the reason for that is that ultimate pointer wants to interpret the claims in such a way that the image sensed is one that the Wii system simply cannot sense. It's one that is a different image from the image that's referred to throughout the claims. Now, there's no dispute. Ultimate pointer hasn't disputed that the Wii remote is incapable of sensing the computer-generated image. It's got this infrared filter on the front so that the sensor inside the Wii 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 asserted in the 729 patent, and they are claims that, 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 image is expressly the computer-generated image. In some instances, it's said in image that ultimate pointer wants to say that a system that can't see the computer-generated image and can't gather data regarding that computer-generated image is nevertheless a system that has an image sensor within the terms of this patent. And that's just not a reasonable reading of the claims of this patent. It's something that we believe that Judge Lasnik and the Western District of Washington probably recognized. So for all of those reasons, we think that there is just simply no infringement, no direct pointing, no image that is properly sent by the image sensor. And you don't have to reach any other claim construction issues. Do you like me to address any other points? If you have another point to read, no one ever gets penalized by giving up this time. No, you're honor. If there are no other points, I believe that non-impranjement would resolve the issues. Thank you. What does that mean? What way do we mean by that? Does that mean that? It would resolve the infringement issues, you're honor. But there's the indefiniteness. Yes, there is the indefiniteness, the IPXL issue, and I'd be happy to address that. We believe that Judge Lasnik was completely correct in his interpretation of the claims as mixing both a method claim, a method step into an apparatus claim. And he 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 and a requirement of an action transmitting frames in an apparatus claim, then it's indefinite under IPXL. Here we had a generating data step. Now, there's a tiny difference between the Rembrandt case. That's not generating as a method. This is an apparatus claim. Yes, Your Honor, it is an apparatus claim. Isn't the microprocessor enhancement case relevant here? Well, it is relevant, but it provides a distinction. Now, the microprocessor enhancement case said that if there is, if it's clear that the action step is merely a capability of performing the action, then it's not an IPXL problem. There is no indefiniteness. There is no explanation in microprocessor enhancement for that. I know that's true here. Well, Your Honor, because we believe that the microprocessor enhancement case was based on the fact that it was a means-plus-function clause, that there were Section 112 paragraph F clauses. And the microprocessor says that. I mean, there is no explanation in the language of the case, Your Honor, for why it's clearly a- Well, it says it's a capability. It says it clearly a capability, you're right. And there's no explanation. We think the reason most likely is because it's a means-plus-function clause. And so it's a further limitation on a means-plus-function clause. That's our review of the microprocessor. Well, Your Honor, it's the way that I can reconcile microprocessor enhancement with the re-brand. It's the way that I can reconcile microprocessor enhancement with re-brand. And I think the two cases should be reconciled, and that's the best way to do it. I mean, the language in re-brand very closely matches the language here. If we say that microprocessor enhancement goes in the opposite direction, then I guess it will be up to this court to resolve that difference. But the two cases can be reconciled by the fact that microprocessor enhancement was a means-plus-function clause. And here there is obviously no means-plus-function clause. There's no four kind of language. There's no capability kind of language. So we think the district court was correct. Thank you, Mr. Radney. Thank you, Your Honor. Mr. Rodgers, here's two and a half minutes for bottle time. Yes. Two points. I wanted to discuss briefly the image sensed and IPXL. The arguments I'm hearing are that the related to the court's finding that the image sensor, the image in it does not include the LED lights from the Wii sensor bar. And to look to see whether or not that's the case, you look in the claims and the specification and look at the purpose of the image sensor. And in the claims, claim five, and is an example that talks about the purpose of the image sensor to be generating data, the calibration points. So it is talking about points, points of light, like an LED from the Wii sensor bar. And then another example is in the specification is figure 18 in the corresponding description in the spec where it talks about calibration points and light spots. So it's not just an image, like a picture of an object that you see on a screen. And it also includes points of light and specifically calibration points. The IPXL issue, the calibration points are the corners of the image, I think, now. They are in the, they are described in the spec to be either the corner of the image or they're also described when they list through some prior art and examples of calibration points. They are, they do include points outside the image off to the side of the screen. And that is precisely what's done with the Wii 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 the screen. So the first is the pattern show that they're not related to the calibration directly related to the image. The calibration points, the pattern shows that the calibration points are directly related to the image. And that's what's recited, for example, in the preamble of claim five. And so that's what we have in the Wii where you have the sensor bar above or below, directly adjacent to the display and the computer, the console knows the relationship. And so it's the same thing as having a calibration point on the screen itself on the display versus adjacent to it when you know what the relationship is. Before you sit down, I just a comment on your confidentiality, Mark, which seemed to me to be quite improper. You are marking his confidential and here public user manuals for the Wii. I cannot understand how that could possibly be confidential. I agree. These were designations made by the Nintendo. Okay. Thank you. Mr. Rogers, we'll take the case on the slide