convincing evidence here the district court at a motion on the clearings a motion to dismiss on the paintings took into account no evidence to suggest that one these claims are directed to an abstract there is a lack of inventive concept when the patent itself specifically lays out the various improvements that this specific cardiac monitoring device has over the prior art and so one example is an improvement in the accuracy of electronic cardiac monitoring devices what this specific device does is to look at identified premature that is an improvement over the prior art devices which you know there was a general understanding as the patent had set forward that atrial fibrillation or rather premature ventricular beats is generally seen as being irrelevant there is no evidence of that your honor well isn't that the case you what we have to do is we have to look at what the record puts forward now whether it would answer my question i'm trying it is was it not common to look that doctors have used for ages do you know of any evidence to support that there is no such evidence whatsoever put forward in front of the district court all we have here are in full by onyx attorney arguments conclusory arguments unsupported right it's more than that your honor you must read this claim in the context of the entire patent with the patent teaches you is that you you have to look at the premature ventricular beats and it needs to have an impact on written in one trial six paragraph format even though they don't use the traditional means plus function language so for my claim construction perspective at this point these claims are not using the word what the district court did you know i think the more significant issue here your honor is that the district court based its finding of an eligibility on absolutely no evidence there are factual determinations that need to be made here and what was done by doctors what exactly we're talking about an electronic monitoring device so what so you're saying the there's a presumption by the corps and it's actually in the red briefs as well about how doctors did this before and this is simply non doing saying do this on a computer in your technical technological solution to a technological problem or a computer solution to a computer problem and what i mean by that is when you get these claims and you read it in the context of the patent what it's doing is they're improving the accuracy of electronic devices right from when you determine if there's a for relational in flight or i believe that there's well over a dozen different arrhythmias and one example that the specification mentions is  order is and what people did before you know what's new or different about this and i didn't read the specification and i don't find that basic information and the contention from posen counsel is that there needs to be a record here to determine questions of what was well known what was routine conventional  accuracy but what i was struck by was the same thing that it didn't describe how that was any sort of a technological improvement over pirate systems typically you look at cases listen and you don't think that their ability to more accurately identify whether someone's having a particular heart condition you don't think that's an improvement that's not a technological improvement in your view absolutely not your honor for the following reason what this patent boils down to and this goes to your honor's question as well are basic steps of collecting data analyzing data and presenting data and we've seen this in a way it's specific data and and it's for purposes of detecting a particular condition and let's assume for a minute that all those advantages because i think we're supposed to and this procedural pastor we're supposed to assume that all the street divan ages that are in the patent we have to soon that they're true right there correct they have to assume those statements are true we don't have to assume that they're tied to the claims and that's one of the things i would point out is that these advantages that are put forth the patent doesn't specify what features in the claims provide those advantages and so you look at a case like a trace there were very detailed allegations in the complaint particular data file how is it different from prior art about the detection of their premature ventured to their feet and how that was not previously done before and how cited on the face of the patent it says that doctors can visually identify from where we're left to look at prior goods cited on the patent and then analyzing in the context of a motion to dismiss on the  been no contention by the other side that we can't i mean that was never never directed to never suggested that it wasn't part of the intrinsic record being that it's one of the things that was examined by the agency so i think that's conceded that we that trained medical care can identify pc's and p b c's and then generically says other written yes i should understand that that includes all of those ever mentioned above so i just to be clear i'm just this is for the proposition that doctors can it consider the differences in the beaks particular inclusionary which i'm sorry paragraph seventy four ok so we have a system that computes the variable variation in the beat to beat variation difference they are the are and that's the same the eligibility determination in this case doesn't depend on whether easy exactly names were done in the prior art and you said for my study that you were going to show us how with the record shows the doctors previously could look and determine and i'm looking at in particular lines eighteen through twenty one and it says when a doctor looks at a set of e k g s they can look at the q r s complex they can look at the ventricular piece they know what it looks like and they can attribute properly what associates it with what  sorry that's right go ahead go ahead i didn't mean what if assizes i mean there isn't the problem i'm having is that there's an assumption that you're talking about comparing it to what a doctor dad as prepared as a parent to what previous devices do  claiming for example in the claim along or even the other one is something that was well known or not well you're you're asking us to make a determination that something was well known based on some scattered references in these other pans i take it that your position is that was well we think it was but the more important point is that it doesn't matter for example in the s a t case there you have a situation where someone i'm not sure that  advance is in fact an abstract concept it doesn't matter whether it's brilliant innovative you know completely new that's what this court said in s a p and it was echoing the supreme court and various and what that shows is the three things they've identified as the purported advances one take some physiological data reach some conclusions about that physiological data which is the kind of mental thing that doctors have always done and one of the problems is that you have a difficult situation where the patent mentions all certificates and interests and those should have been take into account by the just your or if you're saying it doesn't matter that the inventions novel at all but that you're saying it's not a technological improvement when the pattern itself says that it more accurately diagnosis whether person has a particular condition namely a true for bill a sure trail flat or so right so why doesn't that make it concrete and not abstract right so the patents in the following cases also that had technological advances s a p fair warning electric power and a host of other patent itself gives you the information that is necessary to make that determination but i guess the problem is here that i don't see this patent as telling us that the it seems to me to speculate a little so i would say let's assume that it is completely new we say we think it's not but let's assume it's completely new and we're squarely in the realm relation or something like that it's difficult to do so and observe i can understand what you're saying but it could also be saying it's both difficult to induce and to observe ok i would say i mean given this that there's a presumption of validity and that we're in the procedural stage that we're and we were supposed to make all inferences in favor of the pound it's difficult to understand your reading so i just would say in the context of paragraphs of the six it's talking about what a doctor could easily deduce from and if you look at that same language it's exceptionally wrong it has determination logic if i could just focus the court's attention on that determine whether something is relevant some physiological data is relevant to some other condition that's a mental process that's what a doctor does even if no doctor had ever done it this quarter i would put this claim right up against electric power where it was all about collecting data about electrical signals from an entire network power network turning in some way applying certain metrics to it that were part of the brand new brand new metrics like n s a p and then finally presenting that data it doesn't ultimately matter whether that was ever done before that's what this court has said i have i'm sorry for taking  nobody bothers to read alice anymore alice was directed to the claim it doesn't say anything about patents i just suggest that you might read alice again just to be sure i'm right hypothetically if i'm right let's look at claim one and you look at claim one with me do you have a con would you read the opening to claim one for me device comprising stop right there would it be fair to say that claim one is directed to a device  claim one directed to a device it definitely recites a device so so it would be something we could pick up in our hands perhaps but i doubt if they ever made it it would be a thing and it's a device comprising a big detector some kind of a detector a center called beat detector again some kind of a detector an event generator all of these are some kind of mechanical equipment aren't they not necessarily the specification says it could be hardware or software these could be completely soft components a device is a soft component make it difficult to get it to be a device and it could run all of these things  stock in the fact that it's a physical computer that's what alice said i physically computer that was the right problem and alice days ago apparatus had a big discussion about whether computers had ideas d or whether computers were an idea right that's not let's move away from that just help me with one thing if we look at only the claim help me figure out what it's directed to looking at just the claim not  server absolutely so if your are looks at and and i appreciate the question and the beat detector and the ventricular be tech there just for clarity the patent itself in column nine says that those are conventional off the shelf so the question is under one no one is this an idea or is this a thing of the underlying invention purported here is an idea in the same way it was in alice alice had some very similar type  of devices or components listed numerous cases in this court have used words that kind of sound maybe a little technical but when you drill down to look at the claim and thank you for the question the claim says the variability determination determines variability that's you look at what they purport the patentee purports to be the advance and here's what here's all the purport is it means determine a f taking into account and figure beats that's it and that's reflected in the claim when it says to determine the relevance right it doesn't give you any details there but in deciding whether you have a fin that final step all it says is in light of the variability in the beats and  wrong with that's just a mental process that is the fact that you include the fact that you put it in a box or call it a device alice said you can't just do that that that's not enough this court has said it in semantic and dozen cases since alice that just putting it in some physical form is not enough and that's why this lines up i would say squarely with electric power squarely with fair warning to think these and presidents do think these claim if you think about this sort of long i think we have been developing an absolute and but here's the key point on that my friend on the other side mentioned claim construction they were given the opportunity at least eight times to say what is it about these claims that in the my male decision said district courts have two options one take what the patentee says is the claim construction and run with it and decide what to one because they're in the best position to determine what's advantageous for them at that state or do the full blown mark structure at all for the nonlinear other than in the patent he says any non linear function which is simply it's not a straight line that's math that's as safe if you look at the flu case they were very detailed equations mathematical equations at the appendix  of that supreme court decision and the supreme court said let's assume that's novel let's assume that improves the field of petrochemical analysis the supreme court said it still doesn't pass want to want because somebody can do it right correct but when that is the thing that they are purporting somehow distinguishes it and makes it innovative that's when you run into a problem that's when you run into a problem like in s a p recalling a cork in the other cases i think that's a useful comparison  is fully read to me i don't understand that shirt so in s a p there was a in existing financial analysis system on the web it was a it was a web based system that pansy came along and said the way you're doing that is not right here's a better way to do it this is going to specificity of the rules that really got it over the hurdle there and just to give you some of the flavor of that this court said there were limited rules with a specific format including a morph weight set stream sets a function of phoneme sequences and times and transition parameters and many other things the point there was there was a clear technological process of lip sync and image that was technological here work in the medical world and so when you hold this up against all the cases that found some sort of computer technological advancement i think you'll see a stark comparison counsel i don't fault you for taking advantage of our precedents i don't even want to get into that but  this one suggest to you that rather than decide these cases based on attorney argument wouldn't we be better off if we didn't set a twelve the six no record yes it was nothing but well we know nothing about whether this thing works or doesn't work at least i don't because i'm not a medical scientist maybe who are in the patent itself doesn't give us a judge d was working in the dark you come up here and blow smoke and try to keep us in the dark as well i thought the judicial process was designed to give information and to open th up but we can't do that on twelve the sec well i would respectfully disagree in this case your honor because the district court did try to shed light on it gave the panty every opportunity to say what is the factual dispute here and what think instruction  you saying that will get you over the hurdle and i don't think it's unreasonable to put them back to that burden in the same way that andy has to plead the complaint and the specification has to give you the technological advance and so on and so forth so i don't whether whether court decides to change the law or the supreme court decides to change it will certainly follow it in any event as i said don't fault you for doing what you do but but in the end just to be clear the twelve b six and twelve seat dismissals are rampant throughout this court case law and i think the ones most on point are s a p t fair warning electric power with some adjustment but as a matter of law compared to cases like sri where there was an improved network or finch and where there was improved virus honor this is a device that uses certain components that we know but when you program it with the algorithm that's claimed in these claims it becomes a not well known device and it's a cardiac monitor it's sort of like the g p s monitors right those are not generic computers in fact if you look at the pentagon claim ten it it adds i'm sorry i meant you can claim twelve which is also at issue here it talks about this device further device not only do you have it's the algorithm it's the algorithm implemented in this specific device this is like the diamond versus deer situation even if you have a mathematical algorithm that's well known if you use it in a progresses sure but that is a different analysis and in fact there are precedents says that even if you identify one piece of prior art which they try to do here and we haven't looked at that in detail that's not enough to establish that it's well known routine