our first case for today is two zero one five one eight six three ip and learn focus versus microsoft mr powered  the combination of elements in the claims changes the way that humans interact with computers the prior art was usually mout was one thousand nine hundred six million or up with a computer using a mouse and keyboard that was conventional at that time together in this system is individual a they were all know there was not was read about them individually cameras were no individually microphone's were but how does putting them together improve the computer technology i'm really not argument because what has not happened in computers before was for example logging into a computer or your computer typically in ninety six you would enter a username and password logging into a computer using this you can just show your face the computer hardware which is novel so what what it's certainly not analyzing the first set of measurements that improves computer technology right that's not improving computer technology i disagree what what this claim is saying is you  have an optical scanner like a camera and you take measurements from that and use it to this to control what is displayed and you also have a say in some of the claims the claims are all different terms of the number of types of scanners and what they're attacked and but one of the fake claim when for example three twenty young optical scanner a camera and that camera is being used to control and what that camera the tax and how that detect and what is the texture that is being analyzed is used to control the computer if they cut that the claim doesn't tell us what analysis is going on or how the inputs from the different sensors maybe result in some sort of a change the claim doesn't recites that's true or the claim does not receive a specific form of analysis and a specific result to occur from that respectfully i don't think it needs to that's the flexibility of any computer software system but an example as you detecting and then how you analyze that is used to control the computer as if but there's nothing in the claim that specifies or or recites a n analytical process that might be unique i believe that's true of these the claim is saying you're using the output of that to control the computer that doesn't cite the particular analytic process and isn't that what computers conventionally do computers conventionally do that there are as i say there's not a dispute that cameras were known or that even facial recognition of what is disputed is whether it was conventional to combine for example two sensors to decide whether what the computer was going to show you as you recall there was an i p r procedure where that was the issue microsoft presented its best prior art the i p r proceeding determined that not only were the priority not anticipated didn't render office and those are lower test conventional the test for one of one is not just that it might be obvious or it dissipated from a scrap of paper sitting in an archive somewhere or that's the conventional technology and the conventional technology is not the individual legal conclusion that any time one of two or one of three has been rejected whether invite the patent office or by a jury that there cannot stand a one zero one rejection i'm not asking that i think in most cases that would be true what i'm saying is that the legal test under one hundred one is a higher birth and one or two or one of three it's conventional generic and more importantly it's not just the individual components it's the combination and third court jurisprudence that justifies this very novel distinction that you're drawing between conventionality on the one hand and novelty or non obviousness on the other so mayo at twelve twenty two says simply appending conventional steps to the abstract idea is not enough so let's talk money to make this court decision bascom is quite clear about the distinction that i'm making that you could have anticipated by a single patent that was never built and never done anything about that was published twenty years ago that no one's ever used i don't think it's a stretch to say that that's not conventional it may be anticipated but it's not conventional and certainly some it's not obvious from what's present in the prior art individually it's not conventional but the whole point of this one of one is not to duplicate one of two and one of three but to be a higher bore for the second step of m invest and there was actually a description of how that operation of the computer was improved and i guess what i'm not understanding is i get your argument if the claims were different than they are and so that's part of my problem is that the claim doesn't say ok here's that special algorithm that's going to allow this to operate together here's the special programming that we're going to use the loudest operate together it's just all you claim is the special algorithm or the special combination needs to be in claiming the claimed many many computer claims don't claim that that comes down to a question of unable and enablement with respect is a separate question from one to one first and also second enablement here is much simpler because we are dealing with topics that were known individually it was known how to do facial recognition so you don't need an extensive disclosure there any discussion of the of the algorithms that might make this operate the way the way you say it operates it's not generally high level for certain i don't we don't dispute that but then again a ghost when able meant and that's facial recognition for example you don't need to say here's how you can fish navigate yeah you talk about individual components i am not then i agree with you of all the components are well known and it's well known how they operate but you're putting a lot of weight on that combination i am here and emphasising the fact that from your point of either the district court didn't appreciate that there it's a combination here i think it's plain that sort of combination that provides a new are properly noted that the claim itself does not need to be specific it can be brought agree with you on that but you've got to find some some book some place in the specification or in the clay that describes this ordered combination that makes this an inventive concept the claim makes clear that what is happening is you're having for example in three twenty claim one r's that combination it teaches quite clearly is the combination of the two results that used to control the computer so then your honor's question is is the specification sufficiently detailed about how that it is the fact just the fact that there are two sensors combined together enough it's certainly enough to make it non conventional which is what's required for step two there is no evidence and as it is microsoft's burden let's be clear about that of the combination that ip learned just referred to is part of the abstract idea l a step to says that you have to add something substantially more to the abstract idea we can't rely on the abstr abstract idea right we've articulated as observing the user analyzing what they're doing and then reacting to it and the district court similarly he did use the word teaching but he went on and i believe a ten he talks about the idea of monitored interaction he's not talking about teaching in the sense of taking a test or going up to recess he's talking about this idea  of monitoring the students and reacting to what they're doing well isn't but even if even if there is some kind of an abstraction that you can pull out what we're talking about here is a use of a computer measure the reactions of the user so to get to be clear i think some claims have one sensor and some have to but the claims that have to sensor whether a teacher is looking at your one of the students are looking away or what whether their eyes are closed or whether they're speaking that is the abstract idea a teacher a good teacher can look at one thing just their head or two things whether they're or whether they're passing a note with their hands so it is the abstract idea of the whether it's one sensor or two they are only using those sensors to sense which is what sensors do they're saying i want in some claims i want to look at their head and other times i would look at their eyes  at their head and their eyes or their head in their hands or their head in their voice but in no claim are they using those sensors to do anything other than that abstract idea it what point do we get do we have an issue with respect to what  just conventional computer systems or a generic computer system and move into a system where we are talking about a far more sophisticated combination bellman's so i think that if you're if you're if you're combining elements to do something other than the abstract ideas of bascom is a good example of that the abstract idea i believe was with the idea of filtering  filtering content that abstract idea doesn't require that you do that filtering in any one location when we're talking about the idea of a teacher or anybody else for that matter watching an audience seeing what they're doing and reacting to it that doesn't involve looking at multiple inputs from eyes ears and any other sense so there is a distinction there i think between the take a case like basket and the facts here while maybe there is a maybe there are some teachings that the be derived from that in the sense of one or three but in terms of one hundred one what's conventional about hoping up to sensors to a processor to provide a display right claim goes require both inputs to provide an effect on the display some claims do that's right and i don't think we're saying so i don't believe there's evidence in the record that says that two sensor together is conventional in that sense but if we go back to alice's system claims for example they talked about also you know analyzing two pieces of data together with you two sensors and put them together where is there any evidence that this combination was convention i'm sure and actually i think i misspoke earlier so if you're see answer the only claim with two sensors is the one with an optical sensor an optical sensor is a mouse that's all of us and we know from several cases that simply saying have you computer with a mouse is not adding an inventive concept all of the other claims i believe and we can walk through them have the optical sensor now the optical sensor makes sense multiple things but it's only doing what an optical sensor does sensing whether it's the head of the hands whatever you pointed at doesn't make it patentable and then the end the processor a magine that this is the claim you have method claim of using taking a picture and measuring the distance between your eyes and your nose two different points of reference so that i can tell how close you are to the screen for dimensional purposes i can see your eyes and i know you're looking at me like it says in the spec at some place flash look at me on the screen right is not somewhere in there and then they say you know it's takes a picture of your face and it measures the distance between your eyes and say the distance when you're eyes in your mouth and that second measurement will be for depth perception right so the dimensions if they change all know and then it says periodic lee when this person is supposed to be working because i have four little kids and sometimes i tell me to khan academy and i'm not positive they're sitting there for all thirty minutes and actually paying attention to the computer doing khan academy so i actually thought this was like a pretty nifty invention to me because it allows me to supervise whether they're really paying attention or looking at the screen because every two or five minutes it says some pre determined interval it'll take another snapshot of you and you know what if you're looking over here or not looking at the screen it's looking to measure the distance from your eyes the distance through your eyes is different and it then interprets from that that you're not looking at the computer that does not sound like just conventional computer pieces all strung together that sounds like a really nifty invention to me so what why is that not patent eligible i think what you describe would be but that's not the claims here it's not the claim that the claim that you do wrongly that that is the invention disclosed spec i think i agree with you it's not in the claims by the way it were the claims or something much broader and more abstract than that but i guess part of what i sat around with my clerks doing the last couple days is drafting claims because i see an invention spec and so we sat around drafting claims to say what number of patent eligible claims could be drafted based on the invention in the spec and then we also of course focused on these claims certainly but but so so are you recognition that yield is right even today for all sorts of innovation if they came up with a new way to sense as you said how are you looking this direction or that direction or where your eyes are where is a face i you know only cites a paper from one nine hundred seventy seven between the seventy's and the ninety's there were substantial advances and between the ninety's and today there been substantial advances so there are areas in there where they could have come up with a new but not just the face of recognition facial recognition but the idea of monitoring whether someone is paying attention to the computer screen what about all these you know board judges that are working from home or those paralegals at the p t o would be great to have the software to track and then we know for sure if they're doing their laundry verses you know doing their work as we could periodic lee check up whether they would save you obviously whether they would say it's great i can answer but i can say i think you're absolutely right that it really does come down to  what did i q or claim here and they chose to write these broadly but it isn't the rest of the claims maybe that that's a problem when it comes to an able and or it's a problem when it comes to somebody see what they're doing in reacting to it well they have they've claimed a processor that allows the computer to react sure but you could say similarly alice alice claimed a processor that a lot of computer to perform intermediated subtle or all business methods and you know i mean look the supreme court can really clear these business methods that doesn't mean that every piece of software falls into that whole well another example of the content extraction there you had a scanner and you could say well they had a scanner looking at the checks if there was just a scanner doing what scanners do right there was no ordered combination of multiple sensors feeding inputs to a process right and a here the only that a distinction the potentially though i think the kind of said to scanners i don't know that the outcome would necessarily change though i remember in here there's no to sensor claim the only other sensor is the math that's that is my let me approach this from a slightly different angle and ask you this since judge moore drafted a hypothetical let me take a shot at church we consider  just a simple straightforward claim that says a computer system comprising a display a camera a mouse and a processor connected between the camera and mouse and the display period so as it is is there any question in your mind that that's patent eligible i think that would be if you haven't you don't have them doing anything it would be hard to find an abstract idea there i mean you have just a piece of i think you recited all computer hardware i would really struggle i think that would be so why is it that just it ing some language describing functionality somehow display a camera a mouse is the neck did in a certain want the claim i don't believe has the hardware connected any in any certain way all it says is that they're connected or it doesn't say connected but we assume that since the processor is analyzing what the like that all the time you know a table consisting of four legs screwed to a top and there's no discussion of functionality what could be on the table how it's all the table is whether it will fall over or not  so what i'm what i'm trying to get at here is why is it that when you claim certain structural combinations of components that otherwise would be considered certainly clearly patently and eligible that they magically become patent ineligible i don't want to go to not one of the three because they know describes what they can  all you had was hardware i would agree with you but when you have conventional hardware performing an abstract idea and you're not adding substantially more to that abstract idea that is not patentable and that is the distinction i'm the one between right and let me let me continue with the hypothetical certain what if what if you had for instance a computerized drone for delivering packages is the fact that it delivers packages which is an abstract idea certainly but so enabled or not couldn't you say that these claims are to a processor that that does the facial recognition not just recognition but this but this sensing of the human behavior that was not conventional before that the clan the claims here though don't say that the processor does anything all they say is that it analyzes that's that's the extent to which what the processor does the sensor sen things that's that's what those claims say but all of that functionality is just the abstract idea it's what you know a good teacher knows i want to look at their head i want to look at their hands i want to listen to see if they're talking when they shouldn't be so this idea of having multiple inputs it is exactly what teachers have been doing for at least centuries and that is the abstract idea and trying to in saying i'm going to do that with a processor is not you're likely going with the drone example if i may because i think that's a perfect way of thinking about this problem and the answer that you received from mr lamson i thought was instructive if it's a new dr of course there's a we can see that the individual constituent elements of it or no but that's true of most likes mr lambert in responded to my hypothetical by saying any thought the hypothetical just reciting th system the display the sensors the processor that that probably would be at knowledgable but once you add the functionality then it becomes disqualify what's what's your response to that i think that there's two zones of on that question if the claim said you have a purely conventional computer system and what you're doing is doing hedging on that computer undeniably an abstract idea but in that round for a long time i think the supreme court cases would say that that's not patent eligible but what we have here is a a non conventional combination of a new computer system that's step two going to step one not an abstract idea measuring the head is not something that's that you can raise to the level of obstruction it says that's just like being a teacher in ancient greeks it is a sensor that measures th specific and i thought the council's argument with the going to basket was interesting because he focused on bascom's combination discussion of the location of filtering well the look measuring the head is not a given as just as a is the locations of filtering bascomb was not a good measuring the hand having an optical sensor such as a microphone is not a given those are specific elements that are doing specific things and whether you call that korea action or whether you call that non abstraction however you analyze that while that is not an abstract process you can and louses of this record and microsoft's position here is exactly what the district court did wrong in memphis which is essentially raising up the level of traction to a point where it was not recognizable to the client the claims have very specific limitations  forced us out of that thought process so they are there were a lot of things that the computer was doing and it seemed to take it away from a generic computer and i guess i'm going back to the question i asked before the weep pass the line between a generic computer and it using a generic computer to do something that you big that a human can do versus claiming steps that baskin says well each of these individual omens were not one and they're doing what they were known to be doing in the past but combined that's not convention a lot another good example there was just do it on a telephone network the network wasn't changed it was the only telephone network it had a bunch of elements that were known but that combination was all that's not true here i have a question and i'm a little confused by something few minutes ago i thought i heard you say that each of the individual elements there are only three elements including one of the three twenty display a sensor and a processor that's it there's no other elements those are the only pieces of hardware every twenty there's two sensors s the number so are you telling me that because you're a minute ago i heard you say that while each of these individual elements might be conventional the combination is not if you tell me the combination of a digital camera may need to be attached to a computer a display and a processor is not conventional that that combination of just those three elements standing alone only three piece of hardware and claim what is true and that's and what the first one is doing is two different things that's what i said comment you made about this combination of hardware elements not being convention claimed one was representative and the only claim you've referred to is claim one except just now when you mention the claim thirty five and so i am trying to understand i didn't notice below that you made any meaningful arguments to the district court like you can't use just claim one because there are these other elements that make a difference i guess what i'm wondering is how are we to focus on claiming one are we too much to each claim individually and did you actually preserve elements and explain to him how adding a second sensor for example would make a difference that even if you were to believe that this claim was to an abstract idea and patent ineligible then adding a second sensor would make a claims and there are in microsoft's motion below brief and compassed additional flames and those that were a sort of if you look at the claims that were assertive i can give you the numbers of those if you'd like starting with three twenty from here but i can't make an explicit about such twenty one twenty twenty three twenty and twenty twenty one twenty four thirty forty one forty four forty  seventy three in three twenty one twelve twenty six thirty four and thirty seven and in one seven four it's thirty nine and