here the district court clearly erred in the first clear was and finding that salesman's claims were exceptionally weak and that's really something this court can review on its own this court has is aware of its own precedence this court is aware of the law in this area and including based on the discussion we've already had which we obviously don't need to repeat claims were not exceptionally weak two things that i'd asked the court to focus on our that the that these claims are these facts are just the same thing as t a law in seven of the cases that were put in a footnote and there simply very different in fact just judge malley already pointed i don't think it's well until we read them or and and a tricks and then the commentary came out on that and then in a very short period of time also point out that there was a procedural issue in the court the parties had submitted a stipulation that pleadings could be amended but the court hadn't signed it is the court signed it three days before we made the amendment which i think is maybe a friday to a monday but it was there's no it was done promptly after this new law came to our attention and i think it's from our perspective a trick certainly in terms of it just it was something that was new and that this case really isn't squarely controlled against you by do you believe that if it work that isn't the only responsible thing to do to file a complaint immediately  that you must lose in the district court thereby saving hundreds of thousands of dollars of defense costs at that level and we want to take it up to the court of appeals try to get federal circuit altered so that what we think is a eligible set of claims will be held accountable which right now under governing federal circuit why it can't be in this court in washington long winded way of saying make it a test case where all the action takes invalid and we wanted to send it up to get it tested than a test case would be a prudent thing to do but we didn't believe that and there's no there's no finding that we did that's that's what and you know the evidence was that they really that they invalid that's why they were settling out for three thousand dollars the day before the want to one hearing because they knew they were going to lose but when when you have a case here that has contested legitimately contested issues legitimately contested mer this was basically right so so so the parties didn't weren't aware that these you could rely on these factual allegations that we certainly made those arguments already but those to those criticized for saying well those are just your inferences you're drawing from the claimed invention there's not facts to back them up now now with a tricks you can actually plead those as facts but it's not like this was a pity that it's battery saving or that it's more that it's more in the transcript was that we were trying to show her what the claims were directed to so then so then you could get to answering the question because if you just start from the premise of the claims are directed to a crime transfer and publishing data you've already looked at it such a high level of abstraction it's difficult to answer the question we were trying to to point out what the claims were directed to so then we could use that as a baseline for the discussion and you know that the transcript of that hearing is a little hard to follow what you also need to look out is the submission that went with it that she was revealing that was that she let us file after the hearing that made these very point but the district court several times just interrupted and didn't want us to repeat what was on the presentation in front of or we're also criticize your unwillingness to stay discovery well that you know that really does that's another clearly is clearly erroneous assessment in the sense that the the record is that that cell spin responded to the defendant's request to stay by saying your honor take a look at our our response of want to wonder if it's going to be due next week and if and if you are inclined to grant the motion then you can grant the stay if not don't grant the stay and the court didn't grant the stay she'll seal she she allowed it so you know that just it's hard to it's hard to say that that is if there's anything improper or overly aggressive about saying just take a look at our response of grief but if we make a decision supreme court has told us that this is an abuse of discretion standard conduct she didn't find that there was litigation misconduct she just vaguely said it contributed to my holding if if the want to one holding is reversed and the twenty five holdings you could only be reversed the things you did rely on were they the t iming of the complaint and that was clearly just clearly erroneous as the court seeing it was within three days of when compared to the minutes were allowed under her order and that it was within a couple weeks after her her her observation or our finding or it contributed that cell spin didn't agree to stay discovery clearly erroneous else been said iran or take a look at our response before you decide whether to say  discovery if you're going to if it looks like you're going to grant it then stay discovery ultimately when we want to the want to one hearing her reaction was negative and we agreed to stay discovery is just it's just there is just no plausible e so how does that support two really five well there's actually two things to that you're the first she did not like the amended complaint because she said these allegations have been pulled out of thin air that they're not televising specification this goes back to datafile the inventor of data file and this court found that there were allegations in the complaint that were tied to the specification because the specification explained how this was unconventional this particular data file inventive and the defendants in that case even conceded that there was nothing in the specification that says that this data file is can is convention that's not the case here here what they've alleged as inventor of the specific technique techniques invented they were supposed to tell us what they invented they didn't say anything about battery that insanity thing about this poll is not what she is and this goes back to the merits but what she said  omnibus motion to dismiss and in that opinion she addressed why she thought the claims were abstract because they were similar to the kind of claims that a substantial president has dismissed for being just data manipulation and that the conventional things that they were pointing to had no basis in this part about the fact that in the two eighty five ruling she said that the federal circuit has said there is no presumption of living in the one to one context and she  were a presumption of eligibility presumptions can be overcome and in this case these claims are so analogous to data manipulation claims in other cases where the federal circuit has held claims to be ineligible that it would it was they were that them for not staying discovery when the record discloses exactly what you find on the other side described which is they said judge we don't think you need to say discovery at this point but we're about to file a brief take a look at it and if you want to stay discovery then go because and i think the timing the reason that it was improper yawner is because it is true they submitted their many complaint after a trick some work armor came out in february and they submit their complaint in march but their amended complaint the second one was filed on friday night before the tuesday morning hearing or tuesday afternoon hearing and at that hearing opposing counsel said we have alleged in our second amended complaint all of these benefits all these conventions these unconventional aspects and therefore you cannot grant this h t t p point and they say in two thousand and seven which i guess is a very this is the primary date here mobile phones were not using h t t p for sending data google facebook introduced specificity to it about a particular point what's what's insufficiently specific about that that particular point is not in the claims the claims don't require h t t p connectivity they don't require that these mobile phones use these things they require simply a bluetooth enabled capture device and then a non enabled device and the transferring of data between these two devices so that was the clans are concerned any way you get the internet just fine that's correct john there what they are using is bluetooth bluetooth as the specifications state was already extant at the time of the patent filing and they use bluetooth not in an unconventional way they use bluetooth to transfer information transfer data between paired devices that is precisely the conventional use of bluetooth is transferring data between conventional devices so judge gonzales rogers is looking at these claims and t allege but there is nothing in the specification that says that it was in a new set then then we're back to this idea that and the fact bearing on conventionality actually has to be affirmatively supported by the spec which i think is not purported allegedly invented method can be used with pervasive flexible technology things that were already in use at the time of the invention things like due to liking state in the very clear that you can come up with new ideas that you know that on that in different families you know hold ideas his partner that's true you want to you can't but just because something is new doesn't mean that it's eligible for patenting if what you've come up that is new is still abstract if you are claiming it well it can be abstract as well so then that's the step to analysis and at that point there's got to be something that bears on the convention the unconventional use of these technologies because every technology here is just general technology it's a general computer device a general protocol for transferring data whether it's a t c p or it's bluetooth it's all this general technology being used in its conventional manner the way that you would expect it to operate they haven't improved bluetooth they haven't improved the capture device they haven't improved the mobile device they're just saying instead of taking something and capturing it with the device and then manually having to take that data and move it to the internet incapable device or the internet cable device to use me to publish data instead we just do that automatically and how do we do that automatically we use these transfer but the statement she made may have been incorrect as far as the burden at the twelve the six states versus summary judgment but if you continue reading the footnote she distinguishes for crime or on a different or different basis or specifically i'm that's true she did have a trick but again your honor in interest there was something to go back to the specification and here there isn't anything to go back to in the specification because what they did was take their attorney argument from the opposition and imported whole cloth into the amended complaint and say because we've made these allegations you can't address this issue that will be six and that can't be the case we can't allow litigants to simply amend their complaint or file complaints that alleged unconventionality without some kind of tie to the specification and so she applied acting fitness which is the correct law with respect to the five she used her discretion to address the totality of the circumstances she looked at not only the objectively weak nature of the asserted claims but also the litigation conduct the way that they filed things and that the timing wasn't just with the second amended complaint the first amended complaint they filed the day after an hour long scheduling conflict with the court the way they had never mentioned that they intended to amend the complaint so there were several things that the court was disturbed by also their defense of the eligibility of the complaint of the claims at the hearing opposing counsel was asked over and over again to please identify the inventive to the court and so in her discretion she took all of these things in mind and made her decision and therefore because she did not abuse her discretion we asked this court to affirm her decision and uphold the exceptional thank you the one thing to really focus on is and it's on appendix six thousand and six which was just critical to the twenty five finding was that the cells then quote ignored substantial precedent dismissing analogous  say well are cases like this one you have to look at the claims and there's just simply no basis for her to conclude that those claims are analogous they're just they're all very very different claims  what she was likening it to was in like an inventor holdings to where was a fundamental economic concept and and so it was so much like alice that inventor holding should have known better but there's just simply nothing she only looked at step one she didn't look at step two even if the claims were manifest manifestly abstract under step one that's not six sufficient for a two eighty five holding because you have to look at step t as this court knows most cases that come before this court the vast majority fail step one so and really and step two has to be looked at in terms of the totality of circumstances which you didn't do this the court had it right she she was wrong about this presumption of patentability more over or the district court clearly erred in just disregarding the fact that the eight four seven claims had been allowed post alice and that the seven six six claims which which we include in the appendix which are very much like these claims it's got that the the the really limitations of the that pair bluetooth thousand and eighteen so when you look at what is a do you was a party so bad for not knowing upfront that their claims were invalid and one of these patent the claims have been allowed after alice and other similar claims are being allowed not only after alice but after all these other claims and she just ignored them and she should have at least at least considered that she got hung up on this presumption issue which she got wrong unfortunately  my my colleague criticizes salesman's argument of hearing i don't think that's a fair reading of the hearing in any event that wasn't a basis for the two eighty five ruling might my colleague criticizes  the content of the complaint and says that it's it should be given weight that wasn't part of the two hundred five really neither it was just the timing which we've already addressed  my colleague talked about that so what distinguishes this case is that that things are called as conventional but there's and we pointed out in our brief it talks about it can be implemented in pervasive technologies but not with pervasive technologies it's very clear the specification is saying that there is an invention here and as the court correctly said you can put together building blocks even if some of those building blocks are combinations and there's nothing exceptional about that  what we have is even a unit lead over to the two eighty five discussion there's a dispute between the parties over what's conventional there dispute between the parties as to whether of the combination is conventional there's speak to in the parties as to what the benefits are of their speech when the parties of what's inventive and the apple east can't they can't even defend the two eighty five without trying to get into those disputes and put their spin on it but all those factions have been in it reviewed in spins favor and at a minimum it illustrates that when you have good faith