just record never analyze the claim in exact language of the claim and also never looked at the claimed advance over the prior art despite the evidence of record district court also failed to look at the prosecution history of the seven six four and which was in the court entire step one analysis such you're on it there were two paragraphs for step one in its entirety and that you should court came up with two potential definitions one from thirty thousand feet and another find closer to the ground  footnote that the end of the day it seems like step one remains an exercise of i know it when i see it and it was not the analysis of step one not an and meaningful way that's required by this court's precedent or even the supreme court look at the claim and look at the advance over the prior art specifically also your honor in x nine page nine of the order the judge said that the only relevant factual allegations are those contained in the seven six four patent itself we submitted the prosecution history similar to the engine case as an exhibit in our opposition to the motion to dismiss and the district court completely failed to consider analyze anything in the prosecution the district court also failed  step on a legal question i mean even if the district court analysis is fairly cursory we still have an obligation to look at this and determine whether it's directed to an abstract idea or not and therefore whether it's eligible or want to do to look at whether or not it's always going not the court's precedents says you need to look at whether it's an advance over the prior art and you need to look at the claim at a minimum and all the elements in the claim and decide whether or not there is an advance or not and here we have i think i just ask you whether it really matter it's a question of law whether the district court did it to your satisfaction or whether we should set the just argue about whether it actually is directed to  it manages of the present invention and there are hundred forty four supposed advantages show me where the advantage that you're claiming now is in that list you're on a right  throughout throughout the many i'd be happy to point to let me point to one but of your honor you have steps one thirty two one thirty three the speaking about the content license and asymmetric encryption which is a component of the twelve steps and is back with the patent office where you are what you are now claiming the advantages combination of the disclosure of this classification there is not one specific line i think is perhaps what you're asking but yes it's of record that's in the file history particularly the i p r history is and then you look at one thirty to one thirty three in combination to a person of ordinary skill in the art your honor these points one thirty nine as well speak to a new data structure and how the new data insignificant addition by any reasonable standard that's the novel you new content license which is the no so let me i'm just trying to get precisely what you think is the improvement and what's not abstract so it's the context license is a new form of content license that combines what the usage parameters with can't thank you which is the encryption stuff  rather you're just asking us to infer that from one hundred fifty forty four different descriptions of specific parts of this your honner i automatically i suppose i am asking you to infer from the couple of points that i and a lot of the cases it seems to me are very broad relatively short claims that perhaps broader generic language and the court has gone to the specification to look at and try to find some of the answers of the questions that you're asking here you don't have to do that patent office found that no one before it ever put the uses parameter i'm not sure how helpful that is i mean we've said i think before that it may be that it's a non obvious idea that it can still be an abstract idea attached to a supplemental claim construction brief but as your runners have seen there was no claim construction if you will to weigh the parties agreed on that so they've never submitted any of this evidence from the i p r in this record for this motion and  i there's a case two thousand and eight case from this court saying this telecoms five thirty six f third thirteen forty three thirteen fifty one fifty three which makes clear and you've got to have it in them record on the motion you're you're challenging on appeal in that case was a of ways you can characterize this court has done the same for example and amaranth you can do it at the thirty thousand foot level or at a lower level and one of the framings was secured content through delivery and the other was delivering content secured with licenses increase both of those are abstract ideas and as i think your honor pointed out at pages fourteen and fifteen of the appendix the district work identified the latter more narrow phrasing as the abstract descriptions of what the abstract idea is a fair characterization of what's going on in claim one given that the supreme court i think we have wired to not overly abstract yes i do and if you take a look at the claims from top to bottom sending usage parameters so that you can control how it's used this is all about digital rights management controlling the use of digital content they have this particular weight distinguish this case from and  new concept you're you're basically doing behavioral based you're checking for viruses this is that was really a new concept it's talked about throughout patent this is nothing like that why isn't the new concept here what your friend says which is combining the user parameters with the key i think and i get the term trap but i think that's what he said well he does talk about combining the content key with the usage  first of all it's nowhere to be found in the specification it's added ten years into prosecution in order to overcome in anticipation rejection is nothing on which this this patent focuses at most it's an additional wrinkle that you need to deal with at step two it's a detail about how this digital rights management is going to occur it's not the focus of the claims it's a step to issue it's never counted as an invention in the specification it's never cou invention in the prosecution history they didn't add any declaration that said oh this is the greatest thing and we added this all they did is we can overcome climates because we're going to combine these two things there's no apparent significance to it  so i don't think that that is the focus of the invention of step one i think it's fair to look at what the purported invention was whether it's one hundred forty four advantages or something that's more specific in the claims you read the claim and you read it in  maybe you can read in for a lot of the prosecution history as well but there's nothing that suggests that the focus of this invention is the detail on which they're now deciding to focus so i think it is a legitimate step to issue if that additional element is something that transforms the claims into substantially more than the abstract idea at the core and i don't think for two reasons i would say that it is not a transformative inventive concept first a legal reason it's not described in the specification although this court has not addressed the issue because no one has had the nerve to suggest that something not described in the specification can be an inventor concept i would i would argue that as a matter of law it cannot be because you cannot claim as an inventor concept what you don't describe so the second argument is that all they have done is basically done a slight variation on the prior art symmetric and asymmetric encryption where no really do there is no fact issue here this isn't bergheim or we don't have anything a specification that creates any sort of fact question there's no allegations in the complaint that creat to ninety one sixteen to eighteen and the amendment to overcome clements is at ninety one thirty five and ninety one forty five to ninety five forty eight so basically here's what happened ten years into prosecution they got a set of claims rejected as anticipated by climates they put in a new language that includes this limitation and they say this has not been this is not does not appear in climates the examiner says you're right it's not a claim it's not anticipated by climates examiner didn't check to see what it was in the written description but there was no discussion of this being particularly inventive it was just saying it is not anticipated so there's no there's no real analysis other than to say it's not exactly anticipated by one part or reference i just don't think that's sufficient to get you past the threshold for a motion to dismiss  claim construction brief we had a combined claim construction and one on hearing the declaration is in the prosecution history that it has been in the entire prosecution history yes or no the declaration that you relied on your fact the defendants police found the motion to stay because they argued to the court that the fall history was evolving and the motion to stay was granted until the i p r was concluded so that the court could have the i p r record before including this act the read into the record your honors that they have cited to the prosecution history including specifically the i p r record multiple times in their briefing at the red brief at page forty one they cite seventy eight thirty two read brief fall history is fair game and the red brief twelve and at fifty four through fifty six so they certainly relied upon the i p r record as well i don't think it's fair for them to pick and choose which portions of the i p r record are fair game versus which aren't and