out two thousand and fifteen nineteen seventeen combination in an unconventional combination first we're taking the media and it's not on the local device anymore we put it on central storage so second it requires i call identified device properties that's actually quite critical because if i'm sitting down and watching magnificent seven in my living room on t v and then i want to pick up on my i pad or my android or my computer in the airport this is them isn't going to work unless it knows that it w v watching on t v magnificent seven in the morning and it knows that it's me again on that kindle or i pad or android in the airport fourth the media has to be delivered in a format configured that is compatible with the device type so the work of the configuration isn't being done in the device it's not being done locally that work is actually done at the server and fifth and finally now we get to the universal across device pozen resume you record identifier that specifies that place in the media and that allows you to pick up where you left off with identified device properties and that's again lines forty one forty nine identified device properties critical again to make sure that is formatted in a way that is adjusted different your own inventors can see that all of these are conventional elements i think that individually each of these elements is sufficiently well established that you didn't have to go into detail on how to do them either in the cli and or the spec i think it's the order combination that makes the difference here unconventional combination take your media moving into another location taking your configuration doing it not your such top box not on your laptop not simply as oss but doing a configuration that those at the central location i  guess here's my problem with the way you're explaining it is there are there are missions in this record that each individual element is conventional but you're saying the ordered combination is not conventional so i don't know what to make of this because there are four different system models in this pattern that are discussed and each one involves a bookmark but the bookmark is only when the use device what i see no evidence anywhere in the record of is that it was conventional the store a bookmark on a server to be able to be downloaded to a different device that's an element that's not the whole claim you know but you've conceded that element is in fact conventional but one element would be recording a bookmark specifying a position in the media and in your media on demand system which the district court has treated those words in the ambuhl as a limitation and actually construed them in a way i don't agree with by the way but you didn't object to it nonetheless this claim requires storing a bookmark on a server i see no evidence anywhere that that is conventional yet that's not the way you've argued your case so i don't know what to do about that you want to i don't think we treated the we argue that the bookmark itself was not conventional a deposit was in the works cost devices not mentioned and in fact the spec does make clear that you have to store it on the server device but there's nothing in the claim or even the specification that explains how it's compatible right i think that the specification gives you the sorts of criteria that are necessary for it to be compatible in terms of and things like that that isn't explained in the claim itself because that's the sort of thing a skilled artisan would know how to do i think that the alice step one in particular is not designed to require you to put all the houses of each st unconventional and even if the specific if you have all that individual limitations are simply described in generic terms and i think the proof of that is actually direct self if the court were to look at the claims and gear and i'll give you a quick summary of some of them there's a database of programs not watched and then it has to go through a specific process using those particular eyes databases in order to generate the viewing recommendation you start with the viewing history you look at the associated program pretty sure that are there in that same database and you identify a program from that walk at identifying criteria from the viewing history and you find something that matches the user preference profile then you use that you find something that has been watched and you recommend that to the  what is the technological solution for doing and these things in terms of the technology involved the use of databases and things like that we can't claim that you know suddenly databases we've invented them but the particular format and suppress and process you go through in using the databases is an unconventional combination the producers are but there's no technical solution to it defining the program criteria and i don't i don't see anything in here that does anything other that is something that novel not something that's just not the traditional way of doing it and the fact there was no traditional way of doing this when this patent came out remember this patent comes from the teen years ago one thousand ninety eight it were almost nine years away from the first i phone  the model for sending people for people having media is for netflix to federal express you a desk right but just because something might be a good idea doesn't mean that it falls under that criteria or one to one there's there's nothing that ordered process by which you actually go through those and it tells you what used to be in each you have to have the viewing history and the associated program which area so things that describe what was watched along with a person house watch you also have to have your user preferences a separate database you go with us you start with the first one and you match to the user preference profile and you go from that one and you try to match that match the criteria to such criteria and something that has been one those are specific st might not be that we need to develop a brand new computer to do it but that is the type of leap forward in your interactive program that we're now all used to but in the day it was quite a feat and i'll tell you are you wonder say some rebuttal time you're into police court i want to address a few issues that have come up during the argument first of all to address judge morris point about people mark and whether or not storing a bookmark on the server w unconventional the bookmark in the conventional use in an actual book you put the book part in the book itself you always store conventionally the bookmark where the media is so what we have here sex is that the media is being streamed using conventional techniques admittedly conventional techniques which means the media is stored on the server and therefore the conventional approach would be to store the bookmarks on the server there is nothing unconventional about that approach here what would be unconventional no specification says a column seven line sixty six to sixty seven significantly one hundred can store bookmarks within the local memory of them odds one hundred one hundred  every single environment and there are many discloses storing the bookmark when the server it doesn't say storing the media in the server and it happens to contain a bookmark in the media express lee says storing the bookmark when the server every as the media but it's stored in the say so this isn't like your eggs sample where you stick a bookmark into a book write that examples exist in fact not at all disclosed in this patent or relevant to what is disclosed in the patent so when you stood up and said this is just like when you put a bookmark in a book in fact this is nothing like when you put a bookmark in a book putting a bookmark in a book is not at all even close to what's disclosed in this patent respectfully your honor i think putting the full mark on the server side is much closer to putting the bookmark in the book so you know what this is really like is i stopped reading it page fifty seven and since i didn't have a bookmark handy i took my phone and on my phone i typed a note in for myself resume at page fifty seven that's the kind of bookmark this is because it's storing a location to resume playing in a separate part of memory on a server from the media itself and every embodiment discloses that so why doesn't that make this non conventional because there is no evidence that netflix has presented that demonstrates that storing bookmark locations on servers was conventional your honor but the best i can do on that is to say that between the choice of story about my client or storing it on the server the closer analogy to the conventional methods that have been used in physical media is to store it on the server rather than on the client but you're correct that there is not a directly analogous point to storing the bookmark literally inside the book but your honor the sense that you just i don't understand your answer i think there's a non conventional element here in this claim i think the bookmark is required to be stored on the server and if that's true doesn't that end your case what am i missing because under alice if there is a non conventional aspect an element of this claim a new widget you know a new steering wheel new motor or something that hasn't previously existed anywhere in the prior art or been demonstrated to be conventional then we're outside the boundaries of alice as far as i can tell while you're out of the other the other point is that while there some passing references to the notion of bookmarking invention here not being conventional that argument that you have presented it was not actually raised in the opening but you're on to the other thing here is that in order for an order combination to survive in step two it has to have something significantly more than the abstract idea itself and i would posit that it has nothing more than the abstract idea yourself or alternatively that it certainly has nothing significantly more than the abstract idea itself are you relying primarily on the many many concessions that that come from the inventor specification the written description makes clear that there are various methods that are well known in the art that can be used to authenticate and grant access to particular network services and i believe that addresses the point raised regarding the fact that state case this court noted that even groundbreaking innovative or brilliant ideas can still be abstract that course comes from the myriad case i don't think we have anything here that's necessarily groundbreaking innovative or brilliant but the key point is that there is little in both of those one of the choices physics generic p c oh i don't disagree with you that the components are generic and at all i'm still stuck on my point which is this is a while they are generic they are collected in a way and utilized in a manner that is non conventional with the bookmarking capability so i'm so i'm still stuck on my original point i know you've moved beyond it you're talking about lots of other things but but i'm still stuck there with the idea that the media on demand server makes this clearly a server side server required and server implemented device and so i personally look at that claim limitation and think that it limits t claims to server side storage server side transfer and all of that and that's why to the extent that the patent talks about four embodiments which have bookmarking capability in the prior art and things it's always new element connotes the collection of the way the system operates yes your honor but i don't think that there is anything and professor seamus's declaration that suggests that the ordered combination is an invented concept because of precisely the types of information people have always used when making recommendations to their friends and family they rely on what they know that the person that they're making a recommendation to has has a view to the past what they have liked in the past distinctive point and make rope was that when going from the human process of animating to the computerised method of animating it was an obvious and unclear what human beings actually do as you may recall from the case it discusses that the key point was how do you choose the frames in animation and the key frames in the prior art in the human based method involved human animators deciding what should be and what they should look like and of course the way human being is going to do this if you're going to think about the word animate and you're going to think about what your own face looks like when you are at a certain spot in that work you're going to choose that as a key frame human beings don't consciously make choices about morph weight sats and what phonemes they are between in a particular sequence a computer cannot access its own personal experience and how it's going to form those phony and that is why you need to come up with an inventive concept to figure out how to computerize that process here in the seven or nine the precise information that is being relied upon is that which is known to anyone who has made recommendations to their friends or family the other thing that i would stress about both of these patterns is in contrast to a case like and fish for example the and and fish the innovative concept was something that improved the functioning of the computer itself and that was of course the self referential table and that improved the prior art which required that you ahead of time decide what types of information you're going to try to capture so that you can create that introduce new categories that want to that you want to correlate so because you have something that like if you say this is the nationals bookmarking would not be knowledgeable but an improvement to that book marking system could be well potentially certainly under a case like and fish if they came up with a way that actually improved the functioning of the computer as opposed to coming up with a way to implement the abstract idea itself that might be something useful there's nothing in the claims and nothing in the specification that talks about how to improve the function of the computer as opposed to merely taking the abstract idea and placing it in the new technological realm of the  lampoon before you start on what you want to say and one of the things that i thought was him was kind of surprising aside from the fact that you had so many concessions by your own inventors about everything being conventional is that dr seamus's report if you look at it it is sort of the classic well the reason this is pat knowledgeable is because you would need a specially programmed computers you know allopath that was a long time ago and alice has sort of mor case oftentimes we're thinking in the world of time into machine the new world is very different and the we want makes a difference when for example you have you have to look and find your individual steps emphasise the individual steps down a file whether an six months as opposed to what the law the district court had at the time and so one solution that could be proposed would be just to send this back to just report to think again in light of the precedent has gone gone by but i do want to sort of term away from that one little piece of we're actually modifying the media in a way that wasn't done previously and he modifications in a way that wasn't done previously in terms of the pork mark put up but he said reason the and it was this because you have to have specially program computers right now but it also wasn't done the old way the old way was press about a mechanical linkage left and you have a pause the needle lifts this is a very different world where you have to have some sort of a counter and we not only have that counter but as judge moore pointed out helpfully we take that counter and you or the you take it away from the device work pretty long with the media you're taking a lot of things away from the device and this is a way of making the device work seamlessly as if you have the document on the device but in fact everything has been removed remotely  want to get your question about whether the media on demand server is a limitation and i think the answer is clean when it clearly is because it actually says on the client device if unless you have a media on demand system you don't have a client device is there any question of inference finally i just want to go back to where i began which is to say there's two things that really stand out the supreme court and this court formally have been invalidating numbers calculations and numbers business methods and things like that we've now moved a little bit beyond the question here is how far do you go well the law hasn't changed it's just that new cases of come up with new facts that that's correct and oftentimes this court has to operate by comparing one case to the prior that rather than being an effort to use existing conventional machines to effectuate what is an abstract idea effectuate a business method your but instead of improving e g how these machines operate to achieve a goal that's going to be we're changing the way your server operates changing the way the client and server interact changing where things are stored in order to solve a problem which is the incompatibly of devices and the inability of you to move start on one device and then pick up