i sit with my friend reggie walker and i'm still fighting with him so i'm hoping he still won't leave so if i have to take this back someday i'm more than happy to take it it's just a very emotional thing and i speak i know on behalf of all of the judges on our court we read you nd career he served in the navy for twenty years before he came here and even though he's pretending and he's calling it retirement i suspect he might have a thought at least a rd career in him and he still looks younger than you know young enough to be my son and that's hasn't changed in the eighteen years receptive gather we he's been with all of us on the bench this morning for all the time we've been here including judge like he's been here almost twenty years i think and i've been here eighteen and reggie was here when we got here and his service to the court has just been unprecedented you all see what you see what so much goes into whatever we do making our lives making a stew our job the way we're supposed to do it and that's all i'm reggie and he served us when we he stuck monumental work for us when the court has traveled you have no idea we were in l a we set seven different locations at one time and he forgave me for that a little while and i just like to express to him he needed an audio because he's also in charge of the army stuff so i wanted to make sure that he had a public record i wanted to go on the public record to express on behalf of the entire court just the honor and privilege it's been for to have him serve with us many many years and to say that he will be missed is the understatement of the century but we're still you've just been a great friend to me and the whole court and you know if you weren't a cowboys fan you'd be  of time given the issue some time we have one case and it consumes twelve issues so we've divided up the time a little differently and you may not even need as much time as you have but forty mr moore whenever you're ready may please the court and bring more to represent custom media the claims of the ono patent claim a specific new way for the network to control a reserved storage section of anything the advertisement maybe other data programs and so forth would be stored on a single desk so that the heart of one of the issues at least a principle issue was clean construction so you want to and let me ask you just as a predicate for that is  we reject it clean construction argument i'd like to understand how that effects your one and one issue well i think yes because i think if you rejected it it affects the one of two i don't think that it rejects the one  won throughout the prosecution it was demonstrated that we have improved the part systems maybe height and anticipates us but we still need want to want to because we can prove t system the examiner i mean it took fifteen years he said he finally caught on he misunderstood how we were using the phrase we served the district court and did in their briefing said reserved meant only that's what we meant it to be in the board it's they rejected this notion that it's exclusive right but they tied it to their understanding that it was the memory that they believe that we were asserting had to reject the storage of advertising data that was never our argument they've misinterpreted our argument and it they effectively rejected it because out of it i don't believe they understood what we said is it's the receiver itself the processor on the receiver when the data comes in a determined is where that data is going to be stored the memory itself is down memory it will store anything that you happen to put there the board said we don't read the claim as saying that the memory has to have some special structure that precludes it from receiving advertising data we agree with that what it is is a processor that prevents that data from going to the memory because the memory can't reject it so that was our improvement that was the misunderstanding that's what the examiner thought throughout the prosecution intel he said he finally caught on that our reserved was more narrow and it assures that there is space on the this is the boy's construction continue to  you just said here in your analysis well they said that's it i don't believe that they're there construction makes much sense frankly because they say that there is no exclusively requirement there's no exclusively requirement and there's no reservation i there has to be a difference between us and an open ended system it's this processor that sits in the middle that decides where the data is going to be stored on the board but we did that there was this other option that we were arguing which is the memory itself somehow guards itself that's not what our position was so the board said oh it must be something over here but it evaporates the meaning of reserve from the client it reserve have to has to have itself was somehow and incapable of storing memory of data this is a same thing that came up in the district court you look at district court claim destruction order he interpreted that amendment the way the examiner was reading  to mean that the memory was unusable to store anything else it was incapable dish in their briefing to the district court said that reserve met only that that's what it meant created so the applicant explicitly quoted the dictionary definition of reserved and to define reserve storage kept only for advertising data to show that reserve only haven't seen perpetration s j in fourteen so uses the word exclusively so the exam direct recognized and this goes back to a t p x twelve of two that before he was saying you're saying that but it happens to only for advertising  that's why i took you here smiling my problem with your argument is that even if i accept as correct a claim construction you see i still think the claims are properly held and eligible under  so that's my problem with your argument because you've made it clear that you're not claiming a new form a structural change to memory you're just claiming a processor programmed to divert things or not there for things so you haven't claimed something structural like in and fish to affect the computer and i just don't see it so i'll just grant you your claim construction and start from that proposition i don't see how your claims ar segregated in that way so that would be structural but the software is just directing things to or not to particular memory units is what you're claiming under your construction i don't see how that hardware changes no structural change with the software was changed to make the system more revival that well software can be changed you argued in your grave that this improves computer functionality i don't see how this improves computer functionality for that matter i don't see how this change applies outside the targeted advertising context and fish involved in new storage mechanism that would apply across different software platforms you don't have that kind of improvement computer functionality i'm basing my questions you off your bri you argued improves computer functionality i don't see how that's true so the improvement is that it improves the revive build of the system to to conduct the targeted program so that the advertiser is trying to send advertising down to the the storage unit and there's no available memory then it becomes an operable is functionally unreliable what we do is computers not are reliable it's just you're not going to receive the advertising that you want that has nothing to do with computer functionality that doesn't pollute and efficiency reducing memory usage of the computer well if the computer can't store the data that you're trying to provide it then the computer is defective in that sense you having claimed a new memory or a new processor you just cleaned routing routing that allowed it to perform better it didn't change the system itself it just allowed the operators of the system to detect hey we're having errors we need to change something so there was no structural change there the computer wasn't able to transmit the data without errors it was a simply able to detect the errors it so it made this is more reliable and if that previously undetected errors could be found what we are providing is  where the par would fill up and we do talk about the prosecution that by providing a dedicated area of memory that the network can access did improve the speed of access to that data that's an a p x eleven for about forty and now it's not our specification that way but it was described that way to the examiner multiple times and it's because you know whatever it is if you have a large data disk that's filled with whatever data then when it's time to do the advertising you have to go hunt around and find where you put it so we do have a dedicated to this area that's under network control that it has a known what haitian so that when the advertising pops up is able to access it faster  examiner you know did at st not see that it was structural and that was and if you get x twelve o two and we pointed that out to him through the prosecution and then in the notice of allowance he did demonstrate that he noticed that yes this guarantees that there is some space always available and therefore the system is more reliable in the fall of one case they you know amended the claims and in light of alice and said when the morning they please the court i'll start with the want to one issue but i think before i do i think it's worth pointing out that both of the cases that are before the court today are patent sharing specification and they both went through the covered business sure here we have a computer implementation of this fundamental economic practice of targeting advertisements to end users with no new technology that's described claimed the specification describes all of the technological features as being pretty existing in the yard to get to i think the heart of what what now is being argued to be the technical feature which is the processors ability to somehow control storage in some way i'll just point to what's actually described in the specification because there is no discussion of the software that supposedly implements this new technological feature so even you know again i think judge morris moore's point that there is a clear disdain for into the tween software and hardware in both alice and this court case law following alice but when there are software inventions that get discussed in the context of one dollar to one dollar where there is some possibility that they might be eligible it's always where there is a clear description of what the algorithm actually is what's the new thing that's one addressing these what what they have to venture called multi layered advertising formats and there's i believe nine of them number seven is the one that's actually tissue in these claims and that starts around like forty four all it says it's programmable designation advertising sections i mean it's that's it that's literally what we're hearing today is the invention is just the fact that it's you could program a bleep designate certain areas of memory as being for advertisement ok that's obviously an abstract idea there's no discussion of how they're doing that what's new about that and i think important to note that peter did i did i think a really excellent job of going through these arguments and showing how none of these things are actually new noted their claims merely invoke computers as a tool to implement the concept of targeted advertising and are not directed to any improvement of the or side and then i go on a little bit the recited functionalities reserving storage space for advertising data as well as selecting advertising data for targeting users are basic and routine the boards back to the finding was that this notion of reserving storage was old and well known in the art there's nothing there that could point to it as much more invention other electronic devices we are further persuaded that the reservation of storage space as well as selection of storage inaccessibility are basic functions of these components so these are all well known traditional computing functionality there is no contribution to computer engineering or computer science in the specification or the claims instead this is a product that will case of using conventional computing components as a tool to implement a business practice and that's invalid under under one hundred and one under any case that they want to point to no one has ever a tool to do something obstruct versus making some actual contribution to computer science that has broader click ability and certainly in the case of k p n i think the argument was made that that had a broader put the building in that applied to any data and was doing it in a new unique result my cross fields so i do have cross appeals pending in both sets of cases because in the ip ours where one on one wasn't an issue the board do not invalidate all the challenged claims but as i said i think it's my belief i don't want to use your time i would just like you to know confirm if you agree with what your friend has said about the procedural posture it would resolve it between the parties there depending upon what happens outside of this case who knows if they want to one of three issues should be determine or not but i do agree that if you rule against us on a one to one that effectively  we don't have a case so with respect to k p n i don't believe that there's any cases that really limit whether or not you're meat packing eligibility basically on how broad your claims are meaning that if you have your claims are drafted to a specific application of the technology that you're using that you should not be paid eligible but if you had drafted those claims broader that that there's always going to be space available for the adverse advertising service to work yeah you could make it to say something else it could be a good movie service it could be a gaming service it could be whatever the claim have to speak drafted to advertisers we did not describ specification that the data boxes and exclusive access to them would be limited to advertising we talk about games we talk about movies we talk about other services it happens to be the claims that popped out of this patent are target advertising there are other patents that issued from the us that don't relate to advertising it's just that that's where the scope of our claims i don't think we should be penalized on the want to one analysis because our claims are tied to a more narrow