right it's not by some characteristic it's a pretty specific can construct designed to overcome very specific technological problems but and i think the basic unsure questions yes it's it's mostly about i did find spam also viruses which w cited in that this vacation and the idea of this is why some of these hypotheticals are examples maybe a little bit farfetched but why isn't this like someone receiving mail  looking at it and see whether it's from some company that you don't want to have anything to do with and discarding your wizened that's or similar the internet world to what's going on here in this is just taking that example and transferring it into this new context but i think the reason the answer is because that ignores all the very specific claim limitations that that structure about the invention in light of the technological problems it was trying to solve the point is we're going to step through about what i think it is i think it's not critical to us whether you can see where that is look at it and determine whether it's from someone they don't want to receive mail from that's the pet is trying to avoid just that problem you don't want to open the email or download its content because it could never that's exactly the same thing that i was driving you don't open the letter because it's not one that you want to read you simply discard it that has been going on for bread decades or order right but there are other technological problems described in masking who the sender is for using complicated subject lines in order to make it difficult to determine that it spam and what they're doing is they're going to use a hashing out a rhythm to reduce that spam into a very unique form of file content identifier they can't just be an extension so it can't just be the sender they can't just be the subject line has to be a very unique form of file content identifier and they were going to send that to the network to overcome a different technological problem which is using up too much bandwidth by sending email back describe any individual step of the patent as routine or known completely on its own invention as this court said in d d r this the supreme court's encase are most if not all inventions come from combining otherwise not presented here i mean i'm sure the other side will dispute it actually let me explain what i mean at the time and the patent describes this virus detection was predominantly done spam detection was predominantly done on the local computer you would buy a piece of software off the shelf it would have a database on it and that database we have to be updated remote that you have to send all the new virus signatures to the local computer in the local computer would try to screen spam and the patent specification itself describes the two technological problems that arose from that model one was you didn't have up to date signatures and the other was you were using up all the processing power of the local computer in order to do your virus and spam detection and it teaches a different way of solving that problem involves using a mathematical algorithm to reduce the file into a unique file content identifier sending only that teeny tiny file over to the server and using the server to do the processing th are solutions to technological problems there isn't a business model issue it's not teaching you how to make more money or sell more viruses screening is telling you how to do better or by there's an easier more general one cases that in that sense involve technology a much more specific way what i'm saying that the structures that are taught in the claim the unique form of file content identifier is not an exception from the middle of the file and the two tiered architecture of using one computer and then sending only th routine in combination that's there's never going to be a situation where you're going to be able to identify you know some totally unconventional step that is it's further  loans routine with accommodations i think that's right and you know i think that's what we have to prove at the obviousness stage you know we have to show that you would not have combined these in this way but i think there isn't a suggestion that the come combination of these steps in order to solve the virus problem was routine and that's what the invention looks like you take steps from and ideas from different fields and you use it in order to overcome a problem in another field but just i can get back to your capital one so the claims in that case were written to tailoring content on websites and the problem there is not in the technology for tailoring it's in the business model the suggestion is look this content would be more attractive to people if it was tailored and it doesn't and the court was very clear it doesn't actually teach some particular way of doing the tailoring it doesn't tell you that the tailoring has to you know be done this way or that way and overcome some problem in the existing software design it just says look you're not tailoring content the content would be better if it was tailored that's not at all what the zero five zero is doing in the context of the patent at the time and you can just read it off the face of the patent itself incomes one in two there's a description of the problems being solved in the background of the invention the description of those problems they're all described as technological problems they're about the efficiency and up to date miss and bandwidth usage associated with  scraps and this is saying here got instructions for building you a better virus crap it's not designed to take a business or entrepreneurial idea from outside of the virus detection world and just say  these features that you're describing was non rupie i mean the patent actually has a very detailed recitation of some of the benefits associated with the new distributed architecture that it's describing clearly a combination of these different elements so on in claim nine for example starts with receiving on a processing system file content identifiers for data files from a parabola the file content identifier generator regions and the briefed in the case and i my understanding is that i just heard you talk about it earlier is that right my understanding is that the validity defenses are associated with combining prior references that would have taught you know independently ideas of hashing the ideas of the distributed system but you know that the jury found that they hadn't been combined in this particular way but you know they will have a chance to try to convince this court that they're wrong and that we're wrong about that if they want to but i think we should try to concept in doing so we look to see you know does the claim have sufficient specificity is it specific enough to detail the how are the claims performed and on the way in to achieve a different result such as in d d r where a claim was found to routine conventional with the combination is not routinely bench what's your response to that the overall combination is routine and conventional just like alice but the court found the combination to be routine conventional moreover this court that is the executing the district court on pages twenty six twenty eight of its order stepped through and over three pages the details of how the order combination after stepping through all of the independent elements of the claim work generic or conventional had three pages of focus focusing on the claim as a whole and in focusing on the claimants hold found nothing significantly more than the generic computer implementation of the human executable abstract idea previously found which is comparable to one insider source and content extraction and that's an j twenty six the claims don't say the how that is internet patents corp or dealer track or i v capital one that is required and that's exactly why the order combination does not get you there is because the how the you know the detail of how to get the result is not fair that the one of the best quote from the from the court in using the abstract idea and then combining it to show you the order combination is nothing more than the sum of its parts is receiving and sending ineligible similarly here your honor asked a question about invalidity all claim stand rejected at the patent office waiting on appeal based on more than six references that all disclosed hashing in spam numerosity of references information put before the patent office and so there is a distinct difference in addition i will tell you the patent office actually didn't use the product reasonable interpretation of the patent  four and a half years this district court looked at the claim construction came up with a claim construction heard the experts testify had two weeks of trial with experts testify we had asked i know sometimes it's  and that's exactly what happened our greeting went in right after a trial we had a hearing in april two thousand and fifteen and the court found the patents to be ineligible with that procedural posture i see i'm eating into my six minutes now do you have a trial the district court decided to address the issue after the trial the prior just prior to trend micro's trial proceeding curative if the entire case went to final judgment in the final judgment were before us well we do believe it's been assured that there is now a final judgment your honor to the extent there ever was a defect not sure there was there is now a final judgment it will be appealed they are not obviously before you together in a single pill today but the court the district court has entered that final judgment i think so you will have jurisdiction over it ok the so the  appeal is we see if your honour's centers on two fundamental issues of one of one on this is true for all three patents and suit the five hundred one forty two and the six ten the first critical and i think the fundamental tenet is that eligibility for patents under section one of one should not devolve or hinge on what the supreme court has called the draughtsman's or the recitation of computer specific this was well understood concept can be a bit farfetched and on the other hand what you have here is well known application of virus software cuter your seems to be slowly directed to the idea of moving that virus activity to the telephone network from the user's computer the question is whether that's an abstract idea i for the moment don't see that as the existing concept that is the movement from the user's computer to the telephone network on the other the it does seem to be a a new idea can be an abstract idea but i say that they help counsel understand at least what my concerns are not speaking necessarily for my colleagues could you address that as start with o'reilly so even professor morse as lestrade says it is it is celebrated as he has been for what he's contributed to american technology was not permitted to claim the concept divorced from or separated from the implementation specification that told you how the clarification worked told you how morse code works and he was entitled to claims that covered those things when he gets to claim me and he says i want always of understand that very well but assuming that that is in this situation how do we define what's an abstract concept i mean to say well the claim is too broad isn't all that helpful so drawing on the supreme court and drawing on your with this court's precedent i think there are two things you should do to draw the line one is you should look and see in see under the words of alice whether the claim purports to improve the function of the computer itself is it actually saying this is a better something that was identifiable and actually proved in some specific way i think that could be patentable under the alice ten of improve the computer i think it actually says improve the computer or technology if i remember quite correctly so i think either i is the correct answer but what we know is it shouldn't just be used conventional computer technology and apply it to achieve a concept even if the soon your honour's assumption that it's not free no the second thing i think you want to look at is does the claim specify what that new machine or software is and how it works does it in fact lay out a specialized piece of hardware especially as piece of software and not just some black box that says now achieve some aspirational result get me to some magical outcome so i can leave ownership or claim ownership to things that somatic engineers have taken millions of people hours to develop and so if you have an improved thing of the claim no i'm not saying you have to prove novelty but if the claim on its face is purporting to improve the functionality of the technology and is specific enough that you can identify what that new thing is then i think business issue for their customers instead of sending something that is a virus in it and having to extract it at the sending site or receiving it and having to extract it at the recipient site they said well it's coming through us as a pipeline why don't we as a service extract it here not improving the network they didn't add new hardware or new software they don't claim to have added some new piece of programming or some new chip or some new anything they just say we're going to do it as a location here because it's good for our customers that's a benefit that's a that's a result but it's not any newt so going back to your original question you know if the six tenet said here's a way to resolve and better screen viruses in a network than could be done otherwise or has been done before and we've come up with a new program and here's what it is or a new machine or apparatus or computer or computing device and here's what it is that might be eligible all this claim says is too conventional virus detection will be done entirely within the network and limited to computers connected to the network and not the users computers and that's always a big problem but the problem is a technological problem not a business and that seems to be a very broad claim i mean  software the patent says you can use in any conventional virus screening soccer that's right i mean i think that what we're talking we're going to debate we're going to end up debating is whether it was obvious to take the idea of limiting it entirely to the network and added to the way that folks have been approaching my rescreening problem before and i don't think there's the question or is whether it's right that it because it's an abstract idea that is just this or not there do we draw the line i mean i think the the best way to do it is to to look at the pattern in the context of the problem being solved and ask that problems technological and the in the solution there's a teaching the force to communicate characters at a distance that's what made that claim problematic the sixten patent teaches something that no one has disputed that it's insufficient to tell people how to do it you know it teaches you to put it on the network and you know we could  on the network the patent claims and specifications do teach you how to put it on there yes i mean they don't limit to one particular way of limited exclusively to the network other than it has to be exclusive and there was a huge dispute a trial for example about whether it was included that the gateway note so she had it with the two servers and and the claim constructions resolved that dispute in order to show that the claims don't actually breach all ways of doing it involving the network or anything like that it is limited you can ask whether i think it's just too simple and then an innovation to be non obvious for example but it's not abstract just because you you know you've identified a small but important piece of progress over the existing art and that's true of the over the two i just want to turn to this briefly because mr lynch mentioned that the the problem that is being solved by the cover any as it says deleterious data and so the breadth that is being sought for coverage the preemption potential for the six ten claim is huge and unless we want to see if we talk about it in the light of your question you're under the assumption that the telephone doing virus protection of the telephone network was new and not done before i want to make clear for the record and for the court that it's a two seven seven two seven seven seven twenty seven seventy seven intellectual ventures expert dr mcdaniel conceded in fact that a prior reference called sure quote did detect for viruses when in a telephone network so the