kl aspects of the network architecture solution that it developed to overcome those problems i'd like to begin by focusing on one eight seven claimed want to explain exactly how the claim recites those architectural features in for that i would respectfully a direct the court's attention to page thirty one through thirty three of the open in blue grief and on those pages is a chart which includes the language of one hundred seven claimed one as well as the constructions that were used in this case those constructions are the constructions that had been approved in prior litigation by two district courts she judge head from the southern district of texas and judge garcia from the west western district of texas they were adopted for purposes of the one hundred one analysis in this case i'm going to focus the court given the limited time on the controlling the routing limitation which appears on plate on page thirty two i'll note in passing before i do that that the converting limitation in the first limitation after the preamble in this claim it relates to the source server that is responsible for generating the packetized audiovisual streams that are going to be sent over the packetized network the controlling the routing limitation is directed to and recites aspects about the distribution architecture and aspects of the control architecture first if we look to look at the construction which is in the attala sized portion of the undermined the architecture in the claims in the claims of attention and the claims are on the claims recycle aspects of the architecture if we look at the construction of controlling the rowdy first it requires a designated group of intermediate computers that's in the construction of controlling the routing directly to a portion of the routing path taken by the stream of packets from one of a designated group of intermediate computers th computers are intermediate because they're between the source server that is related to the door the converging limitation and between the users in a packet switched network the intermediate computers that are  case the same can drop construction that was adopted in prior litigation in the district courts requires for that limitation directing a portion of the routing path taken by the stream of packets from one of a designated group of intermediate computers to the user in response to one or more signals from the user selecting the stream that is the construction for that term that construction recites specifically a layer of intermediate computers in the distribution system that correlates to the media servers that are in figure one of the one hundred seven pattern that's on appendix page eighty what network so you've got a modification that has to occur to it to a conventional internet delivery platform because of the requirement of a designated group of intermediate computers  and that packet switch network that is entirely on can unconventional in addition to that aspect of the distribution architecture which requires the source server the intermediate computers and users similar to what's shown in figure one with the system and technological integration but the claims to not respond yes your honor that's exactly what he said and that's where he committed legal error in this case he did not take into account these claim construction he did not look at them and recognize that the claims require the architecture that shown in figure one that this claim construction of controlling the routing specifically requires the architecture to sleep judgment on on the pleading claims i don't i don't see i don't hear the architecture of that a human say your honor if if you're trying to figure out what the claims are directed to you as the court recognized in the macpro decision you have to take into account the constructions and in this case the constructions go to the heart and soul of the architecture that is used for this controlling operation it is the entire focus of the specification and it's also right here in the claims  these constructions there is a designated group of intermediate computers there's a control sequence that requires directing the streams and it's specifically requires directing three aspects of it directing a portion of the routing pav that means you direct a portion not the entire routing path in specific specifically you're directing the last leg of the routing path from the enter from one of the designated group of intermediate computers to the user so you direct the stream from one of the intermediate computers to the user for because of the construction there are multiple there it's it's a designated group of intermediate one of a designated group of intermediate computers that means there are multiple possible routing paths through different intermediate computers you're going to direct one of those and you're going to do it in response to a user selection signal so what we have here is a situation where there is a distribution layer within the internet that doesn't conventionally he exists there's there is a distribution layer it is controlled by a particular control sequence that is going to assign it one o c and the way that the system works there which is reflected in these claims is that first a user selects one of the streams that it wants to listen to it wants to watch it then that then triggers a request that goes to the control architecture in response to that the control architecture generates a sorted list of media servers that the system can go to in order to get the stream and then in response to that the user goes to the first one on the sort of list and asked for the stream it gets the stream that's that or that's the directing that we're talking about specifically in this claim so what this claim requires is a distribution layer added to the internet that's not there it's completely unconventional arrangement of the components it's a new layer within the internet with a control sequence that is specifically going to direct the users not back to the source server that's originally supplying the streams it's going to think what i'm talking about your honor or the constructions that were adopted in this case i mean that's specifically what i'm pointing to those constructions have been applied as i said by prior district courts in two different litigations and so that is the construction we're using that's the construction that the district court used it requires specific hardware it requires a specific control sequence that that architecture with those designated group of intermediate computers and with that control sequence is not conventional in a packets which network like the internet in the internet you went from the source computer you apply a destination address and then the stream is routed in an uncontrolled unassigned fashion to the user there is no way to control any particular point along the way where that stream is going to go this construction specifically requires going through a designated one of an eight one of a designated group of intermediate computers that doesn't exist in a normal internet routing situation so what difference does it make it that the reason it makes a difference it proves the system and makes it much more reliable if bands out the distribution away from the source server you could as as it's described in count three lines ninety nine through about twenty eight you can fan out the distribution away from the source server  you can move it closer to the users you send a single you reduce network traffic because you send a single stream to just the intermediate computers the media computers for each channel that they're going to carry and then from that point the users are directed to that intermediate computer that's closer to them and by directing their routing you can pick specific ones of those intermediate computers and avoid network congestion that might exist you can avoid bottleneck problems you can balance the load among that these intermediate distribution computers and so it changes really the paradigm where instead of going from the source as typically happens in the internet to the user you've added this entire layer some other method that has to be fish correct yes your honor the packets are numbered but but how do you know how to correct them how do you know that you need to correct how do you know that the user has a problem and the problem is that you have to receive a signal from the room from the user receiver telling you that there is a problem or the way that it would conventionally work your honor because it's a best efforts internet is you just don't get the packets if they don't arrive in time and you're streaming your plane it back as you get it that's what streaming means your plane it back as you get it if the packets don't get there under under the conventional system and look into your system either way you're relying on her usual received thing on your claim say that absolutely you're with you're not you're really not claiming that that part of the method you're claiming that control architecture and the distribution architecture that eliminates some of that problem the reason the packets are delayed the reason they don't get there in time is because of the network congestion that exist that's why i should i understand that i just want to make sure that i often understand correctly that you're not claiming the usual received symbols but it's part of the claim that the user does receive a slightly or invention no no that's not part of the invention it's the intermediate layer between the source server and the users and the control mechanism the control sequence that is responsible for the interaction of the user the control architecture and the media servers in order to have the stream get assigned from one of those intermediate computers and passed to the user so let's say by directing and at step one analysis says direct the sent information what does that mean i mean the only thing the only possible context for that according to this pattern is it's the directing that's done by the control sequence putting that aside it puts us into step two and the question is whether or not this is a you know an unconventional arrangement to deliver audio visual streams in a packet switching internet type context with that i'll reserve the rest of my time  thank you your honors and may it please the court two ways appeal in this case relies upon convincing the court that its claims are something that they are not the claims that issued do not specify an end to end architecture  provide solutions to network congestion problems or an improved method of load balancing the words architecture or hierarchy load balancing never appear in any of the assorted claims or even the proposed construction that two way has offered and that we are using at this stage of the case as this court in the supreme court has often said it is the asserted claims that are the focus of the section one i want analysis not claims that might have been written on incorporate an architecture into this claim what what is required for two ways of peel is actually an embellishment of that construction in order to get to their features that my friend discus during his argument for example to a argues that its construction mandates a network architecture that shifts the stream load and i'm quoting from the very ships the stream load away from the source server and distributes it across the intermediate computers or quote reduces network congestion or balances the load nothing in the claims as construed by two way requires these outcomes or even attempts to achieve these outcomes what's what step one of the alice test looks at it's the character of the claims as a whole to use the language from electric power group there's no plausible reading of this claim as construed that could lead to the conclusion that the character of this claim as a whole is a network architecture when that architecture is neither resetted explicitly in the claim or the construction council for two way referred to court to column three of the patent which i had i had focused on as well because it's interesting column three of the patents around line seventeen line seventeen through approximately twenty nine talks about this is a detailed description of the embodiment that talks about places where the media servers might be located in their architecture help help the topology of the internet dictates the ideal placement of media servers and then it goes on to talk about how media servers might be placed here they might be placed there you might achieve different goals with one or the other none of that is resave it in the claim there's nothing in the claim that says where the media server should be placed in fact your honour's i would submit this claim as construed by two way focusing even on the controlling the routing claim element which to a has this would be satisfied in a packet  network such as the internet that had say three computers between the source and the user and what about mr heins point that these two of the points  no other court has looked at these claims under section one hundred one there's been no no prior section one to one challenge for these claims bring with them or did i misunderstand what he said i think there may have been a misunderstanding about what he said i don't think  contended that these claims have been something in the brief to they they they've been subject to section one of two and one of three challenges by prior court but no no previous litigant has challenged these claims under section  so this construction if you just had an architecture a network which the internet surely is but let's let's just focus if you have source server of sources of information you have just three intermediate computers and let's say in response to a user selecting selecting content all of the content no matter what flows through a single intermediate computer and the other two are now that wouldn't reduce load balancer when balance loads of women reduce congestion when achieve any of these goals and yet i would submit it satisfies two ways construction because two ways construction doesn't require any means for distributing content across these media servers and it doesn't require any intelligence in the media servers for forwarding content to users this is why the district court rejected two ways argument about this is this architecture because the architecture is simply not found in the claims i said i would note also your honour's that this was not to say that one could not write a claim about a specific architecture based upon the disclosure in the specification i'm not offering an opinion about whether that would be valid under under other provisions of the patent act but one could imagine writing a claim reciting specific servers and a specific architecture in a specific interaction among those servers in fact your honour's to a asserted a fifth patent in this case the two three seven pat different servers serving different functions and interacting in a specific way now that claim was dismissed with prejudice while this section one hundred one motion was pending so it's not it issue now but it's just by way of an example that of course one could write a very specific architectural claim but that's not these claims these claims are directed towards a simple goal these claims are directed towards claiming exclusive rights over the idea of monitoring and keeping records on the distribution of streaming content using standard internet protocols i should should add that the background of the invention in column one gives the context and this this court and the supreme court has has looked at the background of the invention on a twelve on a point to rule twelve motion it's often informative and provides appropriate context for understanding whether the the the claimed invention is what the plane invention is directed to under step one as well as whether there's an inventive concept and if you look at the background of the invention here you see a description of internet functionality and in particular internet streaming content functionality using ip multicasting that the inventors here didn't claim to invent multicasting they describe it as part of the background and under ip multicasting the way that operates there is necessarily an intermediate computer that's the way ip multicasting works as explained in the background already determined to route a particular multicast because users have chosen to follow that multicast let's say you want to tune into a radio station as what was talked about in the early years of multicasting you sign up for the ip multicast of that radio station there's an routers that will that will route content to you through m routers and multicast host computers those are those those easily qualify as the the the intermediate computers that that two way relies upon here that's why we submit that what this case what these claims are are not about these are not the architecture claims these are the claims that are focused on record keeping and monitoring in the context of routing streaming media in and packet based network i want to i want to mention a couple of cases that i think are directly on point counsel referred to the claim limitation of in response to use selection signals as part of the controlling the routing that the content is delivered in response to user selection signals there's a number of cases alter mercial both affinity labs cases versus affinity labs versus amazon and  concept in those cases nor would it be here as as the background of this invention explains and and as the court  aware of the record keeping claim aliments whether it's determining the start and stop times or creating a log or determining that to the duration of the receipt of content for commercial purposes as these various claims re site that type of basic record keeping function has repeatedly been held not to be an inventive concept that's from alice to electric power group oh i keep technologies ultra mercial all of those cases have held that mere data steps data gathering steps are not improvement to multicasting the claim site very generic network functionality and in fact are just reciting the most high level description of streaming content using multicasting but i  note for the court that in affinity labs versus amazon i believe it's quoting there the t l i communications case the court noted that claims in those cases were deemed abstract even though the technology at issue was never that was it was nascent and that in the in the amazon case i think there was delivery of con using mobile phones but what this court said and i'm quoting from affinity versus amazon was quote the claims there quote were directed to the use of conventional or generic technology in a nascent but well known environment without any claim that the invention reflects an inventive solution to any problem presented by combining the two close quote my point here is that just because i multicasting had been developed only a few years before and was still being being deployed does not mean that you get a free pass under section one hundred one obviously if you're  not the inventor of ip multicasting that can't be your technological contribution to the field or an inventive concept so if the court has no further questions i will rest thank you thank you  thank you your honor let me begin by just clarifying for the court when i referenced the prior district court litigation it was in the context of a claim construction he was not in the context of the one on one ruling so that the claim construction is what was adopted in the prior courts there was no the courts didn't address the want to one issue secondly counsel raised ip multicasting and what we heard was an argument about why the claims are not novel and why they're not obvious but we're not here today to decide whether or not the claims are novel or obvious we're here to decide whether or not the claims recites patentable subject matter the multicasting discussion that necessarily make it of the many people it might perhaps be considered but it shouldn't be considered in this case this is far from conventional technology this is experimental technology but more important  and if you look at a fifteen twenty two three twenty eight it talks about the experimental nature but it's also different it's fundamentally different because ip multicasting required a tunneling connection at this point in time as the specification reversed to in column six lines thirty five through thirty nine it required a ton of fixed tunneling connection there was no availability to be able to control the routing through different ones of intermediate computers to direct in response to a selection signal the route was fixed that was one of the problems with that system what these claims require and counsel really made the point when he started posing the hypothetical what if you had three intermediate computers and you put them in the internet that's not the conventional internet but the hypothetical is changing that conventional system that exists that out there that's what these claims require in modification to the internet platform you have to add a distribution layer a distribution point that the users are then directed to in order to complete the routing path you add that control sequence it's required by the claims as part of the directing the claims are clearly technology directed they're focused on the intermediate computers the ability to control the routing of the streams through the internet it solves a number of different solutions it solves the problems with network congestion server