the united states court of appeals to the federal circuit is now open and in session god save the united states and this honorable court t i'll be listening for that tone to it when you run up on twelve minutes and and i'll just alert you that unless you're answering a specific question from one of the judges that'll lead into your r just be aware that any time you run past twelve minutes it's not answering a specific question will eat up your rebuttal ok ok thank you your honor i'll try to keep track of my time as well i appreciate that ok nine you say and i'm quoting in the p to have denied institution finding quote has not shown a reasonable likelihood that it will prevail with respect on patentability but you didn't mention  that this was because the pieta have found that each of the asserted claims means plus functional limitation for which the specification fails to describe corresponding structure why didn't you mention the context instead think that sort of the problem that we've had with the citation to the t t i don't think it's very i don't think it is certainly not a something that would dictate the outcome in this case and it is certainly not something i think of us certainly something that we would disagree with as far as the way it went through the analysis i think that kind of goes in the  and thirty nine you argue that the district court over quoting you overlook significant rhythmix structure corresponding to the tracking function citing the well for the tracking piece i believe that when we talk about the g p s as far as the tracking piece goes what we're talking about is that the information is the g p s information is being sent to the central accessing central data in this case that's the g p s information i want to be a little clearer here while that particular structure like the g p s structure sins information to the central data think the argument was particularly that there had to be some sort of g p s in it that's obviously some structure that's in the claim of the heart in the patent as a whole but really the focus of the structure is the fact that the simple data system is were and claimed functions and then number two it just keeps asking for more and more detail after sort of an algorithm or structure has been identified and this is sort of example of how to couple ways to for tracking what you're asking for is the central data system has to track both the passenger in the vehicle from the initial request until arrival at the final destination the operative function here is the tracking and that's not it that's not a real complex algorithm it's essentially it's going to be receiving data from things like the g p s and then that information is sounds like attorney argument where does it say that where that the district court asked for a means for analyzing tracking data and that's not tracking the quick the the patent itself it talks about a database it talks about modems and so you are devices that transmit stuff from the the passengers and the vehicles to the database we saw fairly extensively in the passage before page thirty eight as to sort of the analysis in the structure for a database and the i think and figure now and you see the communications systems between the transit loading database and the monitoring a written description used the term tracking somewhere that to help me understand what that what the patent drafter was contemplating when using the tracking i don't believe that like you're using the you're equating tracking asmer passenger transportation vehicle usage with something equivalent to collecting information and i'm trying to figure out why is that necessarily right and whether tracking suggest something more than mere catching information and then putting it in storage well i think the tracking analysis is certainly related to sort of the billing idea of tracking of users the location of the vehicles and the passengers and trying to collect that information for billing purposes and security purposes i think there's a tracking definition in the claims or the tracking idea and the claims comes from the idea of you're monitoring all of this communication at the end of the day this is a communication pattern you're monitoring all this communication you're recording you know i keep thinking back to sort of the idea of casting the sundance kid where they're tracking somebody across the plains and then they're understanding of tracking i don't think it's necessarily something drastically different but it's applied here in the context of a computer and these central data systems and the passenger and vehicle systems sensually gathering the messaging system or the messages together and storing them in a location and i think there's so much stuff in here as far as tracking goes your tracking the path goes through your communicating the location you're communicating when the person gets on and off the vehicle you're tracking their personal information and routes and silence and of course the ickle information and i think the problem that we you know there's then there was a searching of the term or whether mass execution the same goes for the some of the other cases that we saw i believe the all points case refer the i'm sorry the all voice talks about a system where you have determining positions of recognize words and there's only sort of one box in a figure and they say well essentially using a microsoft has a microsoft word functionality that gets sent to the interface the function is being performed on the interface where it's recognising the positions but words this court said well in that case you have something information being set to the interface the interface is going to end but as long as the interface can come up with its own internal data structure to store those recognize words that sufficient so it's simply receiving something and storing it i don't think now this is judge then again you've got a lot of different means but function limitations you have to win on here and i just want to give you a quick chance on the on demand allocation functional language and just assume for purposes of this question that the court disagrees with you on on whether allocation includes assignment and that the claim limitation doesn't fact require the the computer system to make the match and to assign a particular vehicle to a particular customer requesting a ride or in this where in the specification what's your best citation for what the corresponding structure is what the so called algorithm series is series of instructions for performing this assignment matching function by the computer system where would be well your honor i think the best link here  s calling fifteen line twenty five which falls in the middle of the discussion between figure five and six it talks about doing the allocation function or passing along that the allocation and then now the best thing i can point you to is figure five and six and this i know i'm kind of running out of time here but between five dollars and six dollars number five is sort of the on demand allocation the on demand comes with and figure six allocation is something that's going on to the vehicle and specifically on demand allocation in figure five start soliciting the trip requests it ends with sending that assignment information to the vehicle and that's the critical part of allocation thank you are on our reserve the rest of my time  i believe judge chan you asked counsel for for right after what the best site was for allocating passengers and he pointed us to a place on column fifteen line twenty five and it simply says based on passenger parameters and i think that's endemic of the flaw here and write ups write ups arguments across across claims there's really no algorithm that explains how you take these endless fees in this case passenger with respect the allocation element but i think it applies the others as well turning back to the tracking function which we spent a little bit of time on earlier as was noted an initially there was a question asked specifically if there are just so i understand what happened at the pizza and you filed to petitions or they were to petitions filed challenging these very claims is that right that's  petitions you know you're you're obligated to identify what you believe the corresponding structure for these different means pose function limitations what did you articulate as the proposed mopin unified proposes the corresponding structures for these different means plus function limitations with respect to the position on this pattern we specifically noted that we were not sure there was corresponding structure but what we did identify  each claim limitation was the best if there was structure our best approximation and what we've gotten almost i think it's pretty much every instance that the structure if any exists would be disclosed in figure nine or table one in some the right to argue this indefinite because we do think it is and to give an example if you want to look at the tracking function if you look at figure nine towards the top of that figure there's a box that says monitor status for vehicle assignments and you can see a corresponding entry in table one and the problem with that structure really is and this is the tracking usage function it really just repeats the claim limitation in a way that the board say that in its non institution decision they did find this claim as well as the other claims they found the tracking was indefinite that there was no corresponding structure for the tracking function they did i really dispute that point the problem with that description of that structure is it just replaces the word tracking with monitor and rid of the explain what how what is wrong with understanding tracking  customer vehicle usage with simply storing those signals indicating what the customer's doing it with the particular vehicle you're on of the nothing wrong with that at best was disclosed in the pot certainly discloses what's in the information but how you use that information how you use the g p s information the communication when a given customer is getting in the cars and the car gets out of a car the system bills the customer all of that just gets stored in a particular place in the database that corresponds to that particular customer i mean that's that's it and what is so complicated about that and what more needs to be said others and that is what i'm trying to understand sure there's nothing there's nothing to get complicated to is your question the problem is it's not the school so there's lots of ways to take that data and convert it into usage data which is what the claimed function such as tracking passenger transportation vehicle usage not just tracking the passengers it was just tracking the passengers i think taking their location recording probably would be enough but we're talking about tracking usage and so taking where they are where they may have gotten to a car or bus what route they took how many miles they went all  relevant to determine usage and none of that of provided in the pot something else of particular complicating in this instance is g p s when at the time this part was filed was imprecise the parties don't dispute that there is something called selective availability that the liberally reduced g p s accuracy for nonmilitary uses to a couple one hundred meter range which means you couldn't just take a precise location and then convert that into uses the way you might be able to at the heart of the issue here your hon s but that's true also of the distributing periodic invoices claim limitation it has and it has the same problems we haven't talked about that and that's let me briefly touch on it like the trucking limitation the parties generally agree that the best disclosure if there is any structure in the patent would be in figures nine figure nine in table one it's at the bottom of the figure nine this time box called building and payment and obviously that box alone isn't enough to disclose how you would distribute periodic invoices for the usage if you've got a table one there's a little bit more description and it talks about using the stored data in the system to periodic lee e g monthly bill the passenger's impale drivers but again doesn't explain how you do that stripping that's in the claim on the tape sion in this case there's a little bit more even beyond those two and certainly when i look at the whole pot when we're trying to decide if there's corresponding start since if you look at figure eight and again the parties don't periodically monthly brought up in the lower court in fact right up to previously argued that periodically is occurring at regular or irregular intervals really any time trying to read out that claim claim limitation entirely and you can see that actually in the less detail than the climb function itself that reads out periodic it does add the word aggregating what we saw in figure eight which we wouldn't dispute but it really doesn't explain how you would distribute these invoices in the step by step manner a a lot of this argument from opposing counsel deals with enablement issue they keep asking the question how and that's exactly what this court has warned against in the typhoon touch case and others where it says and that's something that the district court picked up on and kept asking well how is this done well st of all this isn't a case about this isn't a meaningful function as a means for transmitting tracking information or a means for the frequency of which that transmit that transmission occurs and i want to point out some of the some of the problem here is that page forty five of the red brief the defendant attacked us and say well you point to like digital cellular communications or g p s as a way things are transmitted within the state but that's not part of tracking so which is sitting here today saying well this has to try this has to tell you how it's transmitted but in their brief they say well this isn't tracking and the frequency with which the cast receives inputs well that is not part of the tracking algorithm either the point here is i read the court case law is that