this case has a patent infringement action it's a business method type patent shortly after the complaint was filed before there was much of any discovery defend a move for summary judgment there was no david there was no evidence it was of decorations there was no hit the rocket or answers there was no depositions in short there was no evidence whatsoever the plaintiffs countered have a declaration of one of the inventors stating the importance of the computer in the carrying out of the method of the invention and also stating why it was important that there was a transformation of the original information to a different state or product is that computer recycling anywhere in claims yes your honor it's recited three times in claim one which is the main claim that's involved here and one of the computers all the computer processes information with respect to lisa's there is a the object of this invention is to create derivatives tradable securities those the riveted of our collateralized by underlying leases leases themselves our individual for example lease of an automobile and those leases cannot be sold or traded on an exchange or just one bit of information what the inventors came up with here was a method of valuing these leases selecting these leases ing them to be packaged so that one can create a derivative a different product at the riveted which is like a tradable security of some sort which could be traded on an exchange or sold that's come back to the computer of course i'm aware that it says calculating by computer calculating by computer but is just calculating know what is the computer doing beyond its normal  all on a pad of paper we didn't have a computer we just to we took some hypothetical numbers and we calculated no your honor i disagree it's not just doing calculations it's doing the selection process computer because you your honor you need all of the underlying information this information is dynamic if you didn't resize the computer in the last one does that mean you don't use the computer there is that the not presumption we make for language of this it has to be i understand the core of the claim elements are referring to one transaction but it starts in the beginning and the end of the coin about using information from a multitude of leases that says leases and it's gives the steps with respect to one lease but you have to do this with many many leases using dynamic information such as interest rates which change continuously a human could not possibly keep up with the changes in interest rates with the changes and residual know you're telling i want to know from you is that i don't see any reason to limit that language to a computer to say only being performed by a computer because the claim itself doesn't limited in that manner and i'm not going to import limitations into a claim that our presence known or figure our agree with that but the prior steps in that method which are laid out talk about using the computer to do changing continuously the residual values are changing continuously the calculation is constantly iterating itself in order to come up with a proper group of leases which then can be selected based on these criteria which have already been ana but that's not what is claimed not this isn't the message is rhetorically performing cancellations using the results of the iterative calculations to make selections and combine them together that's not what this claim congress there's nothing at the end that says and do over and over again so this claim is not to what you are describing is to be to and the only counseling you only use the computer in this claim is calculation multiplication it says adding multiplying subtracting right there in each element is what the computers used to do no but the next element your honor is calculating the rate of return and then to the next i don't think so your honor because the commit that's your one hope is that they used the words calculating by computer that gets you by bilski i think if you have a computer in the colonies and the computer is performing some meaningful function and it's not just there to store information then i believe it is fast bilski and it falls within the doctrines of of the other cases which have found there to be a palpable subject matter for example you think what effect it will have my my view is that the effect will be to sustain the patentability of this claim and the basis for my view is that if one takes the existing test of machine or transformation nowhere nope just pure abstract ideas i think this point we'd better test and if c l was bagged for some reason changes the law and states that something is not patentable because it has a computer in it then perhaps it would change the outcome of this of this case but i can't predict that without knowing what the optimists took to get back to judge you predicated this entire thing on and acceptance of the computer has run out and meaningful function in the claims correct and i guess perhaps what you're confronted with here is at least one judge that only sees the computer rendering calculations which involve a do some subtraction multiplication and i'm not certain from my perspective that performs a computer and therefore performing in meaningful function at the supreme court would require right after bil determination as to what the meaningful nature of that computer is in the context of this claim ok well even if you're right and i don't know of any precedent that would support an appeal well on any summary judgment motion you have to take the facts as i put my do you have any precedent that would suggest that the question of fact well you know in the view of the cases which say that the computer has to have a meaningful role and i believe there are a number of cases that say that that what you are saying whether or not the limitation is meaningful and the context of the claims of the questions that i can't say that i'm aware of any case that specifically says that what they need to do talk about meaningful distinctions and that has to be something which is the determined based upon evidence and it has to be clear and convincing evidence it can't be just something that a judge looking at a coin says i don't think it's meaningful how does one determine that it's a question of what was your computer expert asking is does the computer place some meaningful limitation on the claim should we have a claim construction first then there was no claim turn request that you didn't stretch less or plain construction before you  based on the planet not a klingon struck gestural not a claim construction you're asking us to construe the claims here and tell us what selecting means and tell us whether it involves a computer and i think that's going to go away abstract idea which is easily ascertained from law as a question of law without a claim construction and without prior art on the record what is an abstract idea what we have to do is look to the supreme construction i'm back to my original premise you're part of the problem not the solution well i think you were right i am is realizing on the supreme court decisions of seven that's not a whole algorithm without anything formula that's it it has a daily gathering steps in the beginning that this sounds very defined i thought you said it was abstract the equation is very clear you can read the equation and follow  your ear well these are the excuse and well neither this court nor the supreme court has provided a precise definition when you look at the side of the  it will sure it is what it is for example in this case we have a mathematical algorithm without any other substantial structure on the claims so the claim is very close to just clean and idea of concept coming back to well this is i i believe that this is this is war and that because we happen to place it here and not much else and this is very very exchange for the normal discovery process that was ongoing and that was ongoing that's right i mean they they also in addition if you're looking at the procedural posture and whether or not it starts and soon was was active carefully there was also a motion for reconsideration after the judge decided his opinion and that was of the cause of discovery and if they possibly wanted to raise a claim construction issue they had a second bite at the south  i know one well as well one level so that's i guess that's my concern right it's easy to reduce everything to the kernel of the idea that it is inherently has it and strip away and the structural meaningful limitations or end recognizes i think we all do that the future of invention is probably all software will have software chips planted in our wrists that will diagnose and treat construction which you have asked us not to do because you didn't even get to that point before you filed your motion this or are we there's not a lot in an untraditional isn't what you're trying to tell the score you want to tell us what the claim means but you don't want to give us a claim construction you wanted filed this motion before there's any clarity in the meaning of selecting first of all on planes instruction we did raise with the district judge whether it serves needed to be construed including selecting the least and the court had scheduled a marksman hearing but before we got to that point he granted summary not there and i agree with you it should not but that doesn't mean that the claim cannot be construed interpreted what those words mean to include what the process really means and so long as it's consistent with the specification wherein the record so you can test that there was no claim construction before this one i was on motion as my  construction prior to any invalidity analysis and then the court goes on to say that it wasn't necessary for the term computer then in and goes on for several pages but the interesting thing about it is it actually doesn't require a single term in the claim that you think needs to be construed to be just a claim instruction in the abstract hadn't occurred yet therefore there can be farm also told that is on page fourteen of our brief of the word selective your honor asked about the term abstract and what it means and i submit this is not a question of abstract there's no abstract concept here the claim is specifically limited to a field a particular field of leases equipment leases and creating the rivet is from those leases and at the end of the queen it specifically says creating