our first case for argument today well we're going to consolidate the three of them all read all three numbers two zero one seven dash two two five seven and two zero one seven two six two one and two zero one specifications of patents and i b g the ib g case resolves the question of jurisdiction for the three seven for patent and t t s favor there are no meaningful differences among the claims between the in the patents and immaterial and there's a good reason why they've admitted that the technical problem wound in the i p g case with the figure two styles screen is the exact same technical problem in this particular it's a problem with the figure two style shortish the technical problem the technical problem is with the figure two style screen it displays information at the inside market on a grid and the information socially the technology is the technology is the graphical user interface itself graphical user interface is the interface between the traitor and the computing system and that graphical user interface the problem was in interface itself the way the interface was constructed and how it operated the inside market would change the prices would flip and the trader would miss his or her price that's the problem and it's a technical problem because it's a problem with the  computer or something like this is done proving the computer computer had its capabilities or you did it was triggered it well your honor i respectfully disagree the graphical user interface is a part of a computer just like a processor just like the memory if you're improving the graphical user interface you're from you're improving the trading system that's been filed by this court in the east be cast back in two thousand and seven that there was a problem with the screen security case from this court this court found that the same patents the same specifications solve the technical problem with a technical solution it found it was a technological invention the secure g p s and then it was found this was a technological invention well they said they didn't find it and both of those are the presidential opinions aren't they correct ones non presidential i don't think that matters one bit the data engine case which was presidential opinions as president well that i appreciate that your honor but again in multiple cases now this court has found that there was a problem with the u a e it's a software problem the patents solve that problem and that that's tech that's a technological improvement the three seven four pattern as i said the three seven core patent again it is a drug that is addressing the same problem and it's doing it through the claims with with a specific structure made up of functionality it's part of a part of the same family but part of the same family it's in fact it's the exact same spot at issue is i want to ask you a question as maybe i have an aside but i do think it's relevant part of me the comparison here is that this this invention is an improvement over figure two and figure to the figures change and change is the instant you want to place an order and that could skew the intended result but what why the comparison with figure two why not compare it with sort of the way things used to be done on paper that people would write is ask bid interface that the pen and paper issue that the problem didn't arise in pen and paper there was no problem with that the problem arose with the graphical user interface the figure two style screen the way it was constructed having the inside mark in the same location on the screen so that that problem didn't exist didn't exist on paper but that was a problem not we salt of sort of a shortcoming in computers or computer functionality it was a perhaps a shortcoming in the way whoever it was that came up with figure two came up with a figure to well actually figure to as a representation of a graphical user interface that a trader interacts with so i believe that is a problem with the computer you have you have a trading system the traders interacting with that front end but it's a problem because of the way the computer was programmed it it's a problem in a way that the graphical user interface and it is a software problem it's that's exactly right it's a problem with the software how that screen was constructed that gave rise to the problem and then the invention though provides a different interface that improves the functionality of the overall or ethical user interface system and if we are consistent with the decision in c q gee we would have to reach the same result that's exactly right the three seven four claims if you look at claim one for very specific it's talking about graphical locations along a price axis that are displayed you have price level sequential part price levels that  mapped to the locations so that when a user want to trade or click and that graphical location the price level is mapped to that location so if the inside market changes the mapping doesn't and so when you click on that location the trader will get the intended price so it's using different words to solve the problem of missing your price and that that claim also solves the speed problem because the single action of the use input device in that graphical location sets the price along the access and also sends the order that single action limitation is common to all the patents in b g as well so speed and accuracy this invention the three seven four it's using slightly different wording which may be relevant for for example infringement but for purposes of eligibility it's way over one way over the line and the more you talk intermediated settlement unconventional computers and i think the supreme court said if you do not you're not patent eligible i don't think the supreme court meant to say if you're improve if you're doing a software improvement on a graphical user interface  to for example if you had a an interface that had attached to it to click on to act to get the information in the prior art but then you came up with a new way to display an icon for example that made it easier for the for the user to recognize something and to access things on the user interface i think that would be an improvement in software it would be an improvement in the graphical user interface and i and again we're talking about one of the baby but it doesn't sound computer that had a problem and then in my example the the improved graphical user interface makes it so that you can access the computer easier it really comes down to can you get  one sentence about improving it that's always been there that's basically what they were almost what they set well i think that i think they were clear on what they said in terms of a fundamental economic practice and just slapping it on the conventional you're improving a graphical user interface you're eligible there are lots of ways you can improve an interface most of which could because medic and superficial i don't see how that necessarily entitles you to eligibility unless somehow it's actually improving the was a technological problem that was solved by the patent and that's why he came out the way it did as you well know but you spent all your time on this three four seven patent no doubt because the best for you it's the same family why don't you turn to the other two because i don't see how those are technological inventions because they don't solve that very problem which was the problem c q g identified they don't they don't use any where in the spec the static price index language but moreover and importantly those patents are not directed to improving or eliminating a problem with making the wrong trade the way that the three four seven arguably yes they are so please turn to those and defend  of the same family that was addressed and seek correct that's a different pattern family difference back different claims as judge moore pointed out it's not the claims don't have static and they don't have a single action and they're not solving the same problems with the same solutions bought and i'll start with a nine nine nine nine nine nine patent is solving problems with a prior art graphical user interface in a different way than the nine the nine nine has to do with the person who in executing trade intuitive computers and into it if you're telling me that i have an interface being intuitive or not is related to improving the computer or related to improving the person's interaction with the computer it's improving the computer functionality just as far as most found indeed engine they'd engines a perfect example in that case it was a select tronic spreadsheet and they added taps to the spreadsheet and made it more user friendly and made it more intuitive for a user to be able to access the spreadsheets now but that was a different way to interact with the computer and it was a different way for the computer to function that that strikes me as being dramatically different from what we're dealing with here because all you would be lawyer doing is giving the user different information is it seems to me that as nothing to do with improving the that but let me just the the how it's doing it is it's saying there's a problem these prior screens only show you you know the inside market it's not intuitive it's not user friendly because you don't see all the  along a scale price access scale price access which shows prices where there are no orders and you see all the bids an ass but that's that's not the only thing the nine one one claim house and also has the functionality of showing the users order in order right com on the screen and it also and that solved the problem with prior graphical user interfaces where prior to that your order wasn't shown on the screen it was in a different experience should should be you're  saying that every new and different graphical user interface is that no we're not saying every graphical user interface is knowledgeable what we are saying is that if you have a graphical user interface that's improving that is an improvement that's an improvement improvement to what and the problem improvement to the graphical user interface a computer it's against an interface it's just an interface that's just it's a presentation it's like the wrapping paper on a christmas presents not present well you know i flew out here from up from o'hare and i well i respectfully disagree those graphical user interfaces in that cockpit are critical how the pilot interacts with that  user interface it is technology problems with the graphical user interface can cause severe issues flying for example on airplanes this is no different presenting the data you know like for example hey let's put it in bold instead of regular text because people can see it better let's put the really important parts in bold now we have a graphical user interface which has improved technology because people make fewer mistakes because the important things bolded that it seems to me your under your arguments would be eligible and i just don't see how that's possible state law well so what so what we're saying with respect to the nine nine nine i only got through the two of the problems one was one was the lack of intuit i would have thought you would have started with your strongest ones well i had the intuitiveness second you have this order icon for the first time now it's being displayed with all of the other orders and now if you want to change your order what the nine nine nine patent the claim is directed to instead of going to a different screen and finding my order and canceling it and sending a new order the ninety nine patent allows you to select your order on the screen move it to a new location along the scale price access what it there which automatically sets a price and then you send the order from there at solving what it's doing is it's making it more efficient for the trader to be able to trade more quickly more efficiently it's no different than than any other improvement to a graphical user interface it's a very specific claim that has at solving three different problems actually three different problems to it have mass adding your order on the screen being able to click on your order move it to a new spot along the scale price access select a price and sunday order to the exchange that's improving over prior graphical user interfaces that didn't have that functionality that's the that's the nine nine nine patent real quickly i just want to hit the five six patent again it's the it's the continuation patent off of the nine nine nine patent after patent also solves problems with prior art believes the first problem is the same it's the you know not showing all  orders on the screen you only see that the best spin the best ask in the prior art the old five six claims solve that problem by providing a price axis with the market including the inside market and then the claims a specific way to select a default quantity for the trade and the default quantity allows you to make multiple trades at the same quantity without b without having to select the quantity every time between each trade so you select the default quantity you select the default quantity along the price axis which sets the price for a quantity again it solving its at solving a problem with the prior it a technological invention issues of one of two and one all three than would deal with issues of all was that obvious to do that than the claims that were addressed in the c q g decision in last month's decisions in the i v g cases where you say radically different and what sense i'm like stepping through it and the board sensually stated that that fact in the final  decision after it is fourteen through fifteen which we pointed out in the read brief at twelve if we go to claim one of the three seven four path we have a receiving step computing device receives market data that's just it information for the user to click on them in the final step that would result in the sending of a price there is this mapping step in the claims and that's where the prices of the beds and offers are mapped to this those prices you can essentially have an unmarked line and when you click to close the regions there it would send it straight again confirming that displaying a mapping are different if you look to claim twenty two sides both displaying  you keep it static at that very moment but the axis can change at the moment before and the moment after the prices change and you think about the speed of a clock cycle computer the problem of this figure to get we let me present would still be there because human being can't relate to that kind of timescale right so that the axis can move any time in the environment except that one instant when price levels change but before and after it it may move so we think about that there's really no technology there simply the display of a line and the well known technique of clicking along that line to send an order and for that reason the p t was not arbitrary or capricious when it found that the problem solved by the three seven four pm was not a technical one and it didn't do so with a technical solution unless there are questions about the eligibility question on three seven four if you want to talk about eligibility as it relates to the other patents involved in this hearing starting with ninety nine and we heard from mr gannon today and i think it largely tracks what was in the letter brief that the party submitted last week and they six patent it's talks about the way of trading before this is these supposed inventions and in that environment the market would track every single bit in offer and it would provide that information to the market makers who could trade on that information so the problem wasn't a technical one the problem was one of least in this single respect was about information access who do we give the information to courting to the ninety nine pat information to the users i think is i understand their argument it's more it's a more intuitive way to present the information than conventional view which we don't really know the conventional doing or except for the single example if i say let's say we do have an intuitive way to do it but it's different and it's different because it was programmed differently it's not the fact that it is different it's not dispositive about whether it is a technological invention and if i did it become different other than being reprogrammed which programming techniques that were used the choices about how to display information those didn't involve new or non obvious programming techniques or new hardware in fact you read the patent it doesn't explain how to do any of this it's all result oriented computer functions that are generic that are not technological inventions but that they just didn't happen overnight happened because somebody created a different program yesterday but that effort and even of traders not having access to sufficient information it talks about the market exchanges would not share all the bits and offers to all of the traders but they did and it was a problem at the traders had to gather information from  problems its design choice about where to display information on the screen and again this relates to the notion of the drag and drop box analogy that is claimed the one and i pad that wasn't you were not obvious that was famously well known by the time of the nine ninety nine patent had slow inefficient order entries requiring multiple steps the ninety nine doesn't have a single action order entry if you will if you look at the claims and compare them to the description at column ten lines forty four  s eleven life or you'll see that whether you're dragging and dropping the token or using the taskbar you have a multi step process that requires selecting quantities and then at the dragging it to the right location or filling in a box and then when it's all said and done there's a confirmation window which then requires the user to sir modify or cancel the orders to the fish and cheese that may have been present we submit they're not in the three seven four patents they're not president ninety nine  five six not to mention if we look at the prior abuse we have figure two it already solved that problem with single action order entry and that's the problem that they've said that when you click on figure two it sends the order you don't have a chance to modify it this wasn't really a problem these are all made problems i made then turned to their points raised and c b s eligibility as concerns you know five six pack in the race a two points here again this notion that the conventional q b is did not provide an intuitive view zero five six again they don't provide a solution to that and even if they did it wouldn't be a technical one there's no single action order entry even if there was that's as well known to us using mouse clicks to send commands to you we interface to the computer reference as well as the weiss reference which is in the records of those two cases what we see here in both of those examples is a display of offers and it's on a price axis and it would be updated all that's happened here is the automation of that display using generic result oriented computer commands and those are not that of the kind of inventions that are eligible for patenting and we then turn back to the three seven four thank you honor and may please the court we've intervened to address the constitutional issues here as we explain our briefs the issues were forfeited and this is this case design of all the retroactive application of the c p m procedures at all but i'd like to focus on the due process and the takings argument at first with respect to due process just as in patrick's congress had a rational basis for applying c b l review to patents that issued before the it was passed and that was to correct agency and to protect the public interest by keeping patents within their legitimate scope with respect to the takings issue the cancellation of a patent through covered business method review does not constitute a taking because it rests on a determination challenge under any sort of administrative that's correct your honor or why wouldn't it be a taking to moral introduce the into the existing patents which were of course when ex parte rigs emanation was created there was no prior form of agency reconsideration at all and the patent holder and pat lax argued that the the fact that the presumption of limited didn't apply an expert a reexamination meant that there had been a taking and this court rejected that argument and held that the presumption of liberty was merely a procedure and that the patent holder didn't have a property interest in the procedure by which the validity would be determined and different or in substance so is there well exactly your honor and the substance i think this is really the key point that the substantive criteria patentability including section one on one are the very very same criteria that existed when these patents were issued so  criteria was changed significantly by alice and other cases coming from the supreme court i don't think the patent community at large would rally behind you and say that the current state of want to one law is the current state of what it one last two claim to patents that were issued prior to the decision in bilski and there's no taking there are the same is true when the board applies the current understanding of what section one means to patents that issued prior to to those decisions the court isn't changing the law it's interpret what the law has always been and so recent respectfully i think that what the you know with the with the board is doing in a c b s proceeding poll the audience to see how many people they're issued and there isn't a taking involved when this court applies and a new not just wondering if there is when entirely new regime is created see the which as to the agenc authority the ability to revoke a patent the ground it never printed previously had the authority to revoke that and i think that that is not a taking for a couple of reasons first of all our primary argument is that when before the agency would cancel  patent the agency has determined that the patent was never valid the issued and then this with the patent isn't canceled until this court would affirm that determination so it's just the same as when a district court determines that a patent i invalid and there's no taking there so then is it your view because you didn't see a lot on the fact that one no one existed though really wasn't by the same way these facts were issued and and one one was a criteria they taking under those circumstances because you hinch a lot of your argument on the fact that when no one was a criteria the times patents issued so it should be fair for the agency to apply it in a reconsideration setting so what if that were the criteria then with their view taking that would be an entirely would not be a taking because you know but into my question about whether you think it would be a taking your argument has been presented to us as distinguishing this case from the type of case where it wasn't the same i think that would present  much harder question and then that i do like to know what the government's thoughts are on that harder question your honor i mean i guess i don't know what to say other than it would be a much harder case than in this case because here we don't have a substantive change in the law it's the same criteria it's the same one on one criteria it's the same you know requirements of novelty an have existed and another way to think about it your honor though is that once that you see you see the analogy in my mind that if nothing criteria if there was a major change in the law it was not statutorily based but if a new judicial exception was created to   new judicial exception to patentability i'm not sure we're in a different place but your honor respect really isn't that hard case respectfully the court in that situation the court would apply that new that new judicial interpretation to all patents regardless if he takes even proceedings out of it i'm just another case that's being appealed from a district court a district court or this court would apply in the current interpretation of what section one and one would of course it wouldn't be and it wouldn't be potentially be a taking there do you when you when the congress creates a means for a limb in aiding the property right that someone has been given and believes they're entitled to doesn't that create the taking if congress i think there's a difference between of congress created if congress changed the law enacted a new statute respectfully courts our courts applied courts apply the current understanding of the law to get to the patents regardless of when they issued and it's the way the courts work is that that is a statement about what the law has always been and it's not treated as a change in the law and i think th authority to do something about the argument there are cases in which courts have said that agencies generally do not have authority to address the constitutionality of statutes but the supreme court has made clear  address the constitutionality of statutes is quote not mandatory and in fun race in the court approvingly cited the fact that the agency in that case had addressed constitutional issues before in addition this court in reagan the office of senate for employment practice which is sixty one after one five six three this court held that the agency at issue there could consider a facial equal protection challenge to a statute in the course of an agency administrative proceeding so i do not there is no category bar against agencies considering constitutional challenges to statutes in addition in re d c of course this court held that a constitutional argument was forfeited because the party hadn't raised it before the board of patten appeals interferences we think that the same rule applies here and i just want to make clear that we do think this is this isn't a case where it would have been few time for them to raise it because they could have declined to institute the proceeding and that would have you know obviated the constitutional injury that they're claiming of but in addition one last year i think their argument is sufficiently raised in the blue very i mean i've never seen a constitutional argument been given three sentences in the blue brief and been found to have been thoroughly fleshed out such that we should expertise to threshold questions to the statute or to issue into related issues that can then aid a court in addressing the constitutional issue on appeal and of course here if the board had had the opportunity to address the constitutional issue and had determined with respect to the three seven four or just one of the first two a couple points that i'd be made in their letter brief i'd be primarily reliant on the lack of static pressure and the claims of the three seven because the claims had specificity there were still solving problems the same types of problems and it's really a form over substance type argument i be is essentially asking for reconsideration here and what they already lost by them saying all statics not in this claim well and i think i think ib is actually moving for reconsideration on that point and we'll see how that how that goes but arguing it here is just asking for reconsideration  one thing ibs letter brief doesn't address is the claims they don't address the claims of the specificity in the claims of the order entry region along an access where you have a plurality of sequential price levels maps to those graphical locations or single action order entry to set the price and sign the order when you click on the graphical location their letter brief silent on all the details of the claim and i think that's  at the borders here number one the board said there's no problem disclosed in the past there's no issue with figure two that's been rejected repeatedly by this court the board also says erred by finding that there was no technological solution the board basically said well this claim just requires the use of known technology you can use my so you can use a laptop or any kind of computer completely missed the solution which is the specific structure of makeup and functionality of the gooey that solves the problem in the specification for respect to want to want and of course we don't even get to want to one with the three seven four but i just wanted to point out that i be bre they basically say well i b g doesn't apply because these patents don't have static and single action again that's irrelevant i beez arguing that we're saying that  technological that's not to tease position what what ip sites do in their letter brief as the camera case and that's that i want to focus on because that case found that the patent was a cover business me and why is that it was conventional computer components applied to a well known business practice it was the menus for ordering and putting those menus off the shelf computer and the court this court said in that case that is a covered business matter that there is no tech technology and the reason why it wasn't found to be technological is there was nothing in the claim saying how to improve the display there was nothing in the claim saying how do  improve it our claims in the nine nine nine and the old five six are nothing like that these claims have a specific way they claim a specific way how to improve the graphical user interface our claims are not just you know trading electronically using a guru or or taking an off the shelf computer and then trading if that was our claim it would be a different issue on c b s our claims are very specific the nine nine nine patent starting with that it's displaying the bids and ask along the scale price x selecting an order icon moving it along the axis to set a price at a new location that speeds up order entry and i want to just be very clear on this point the patent says in the spec a column on lines fifty nine to sixty three a system is needed in which trend information of market demand for an individual item is provided the traders in an intuitive format an intuitive format which allows traders to quickly interpret market them how to speak with intuitive format which allows traders to quickly interpret how market demand is changing to an item at column two lines thirty nine to forty one the spec says the user interface of the president vention presents misinformation and intuitive format allowing the trader to make informed decisions quickly and that's exactly what these claims are directed to it's a specific arrangement of elements with specific functionality in the nine nine nine it's grabbing orders and moving them to a new spot selecting a price in the over five secs it is displaying the market and using a default quantity and selecting a price again by selecting selecting along a price access again speeding up order entry these intuitive displays and speeding up order entry is exactly what was found in data engine as i mentioned earlier data engine the tab the notebook tab electronic spreadsheets was found to be highly intuitive user friendly interface or wireless was another good we work so the fact that it has the same spec doesn't get you over the hurdle if this particular these particular claims don't really have the same technological advances as those others are they are really a technological graphical locations along and actually they say they lay out their claim constructions which they say were in their institution decision on the native patent or does not dispute our understanding of the claims which was explicitly set forth in our institution i believe on the mapping element that's correct the mapping element is you have sequential price levels map to locations along with actually claim one does not require the graphical locations display the price levels that are map of them any other information or even any indication to of appeal the board said here you didn't dispute their understanding which was set forth in the institution decision there was your standard would make a difference to the outcome of this case there is no dispute in this case about the meaning there was no claim construction issue on the map list of what the board said about the claims that and watch how can you continue to find the exact same case focusing on the claim language and there inst set out in the institution decision understanding of the differences between the mapping in th displaying of those requirements there is there is a difference in the claim what we're saying is that there the difference doesn't matter for purposes of c b i and the reason why it changes the nature of those claims it changes maybe maybe the scope for maybe infringement very similar to the for a lot of them out but it goes right to the heart of what what what the c g opinion that was the invention  you map sequential price levels to a graphical location such that the mapping doesn't change when the market changes you're solving that problem you're just doing it in different words just a different client say you if you do it in different words p t o expressly said those different words mattered in result that can be different but that the and you didn't dispute it is what they said we didn't we didn't have an issue there was an issue with claim construction of what we were not because you didn't see how it was going to play out you didn't realize you'd be in this situation so you didn't dispute it back then did you realize it's going to be a problem but now well you might be a problem it's not a problem it's not a problem because again the claim require sequential price levels mapped to the order entry regions along the screen along in access and so when the user goes to click on that area the mapping doesn't change when the market changes so we it's true we didn't have an issue on claim construction per se with the borg but we disagree with their results