Back in the days of the DS, an emulator of the DS was leaked.
I don't know much about US legislation, but apparently if you develop an patentable artifact and it's publicly known, the creator has up to one year to file a claim for a patent.
The DS was released well over a year ago, so I'm confused why you're bringing up the one year filling bit. Can you clarify?
Since they themselves developed an DS emulator and never filed a patent claim that's a precedent. Ok the DS and the GameBoy are different but if you add that Emulation is not something new, plus they never considered protect that asset so is another argument Against that patent.