good afternoon your honor may please the court the six five two patent identifies the starting point for the invention it's at the bottom of column one of the patent says the starting point our screen saver and wallpaper  applications that were previously used for burn out and for us that it can functional purposes if we take ourselves back over twenty years ago to march of one nine hundred ninety six claims they don't really talk about the wallpaper of background in the claim or screen saver write what the claims require your honor is an attention manager that is what specified and as this court construed in the prior case it essentially captures  any kind of content virtually right well it cannot be any kind of content it has to be content that the user special guys but other than that yes the user can see it can be something it can be either visual or audio i don't think in the because of the court's claim construction with respect to displaying images either when the user is not engaged in a primary interaction or in an area of the display screen that is not used by the users primary activity the more critically there is a requirement the kind of display instructions for example display instructions for enabling display of the image right but then images the find in the path of any sensory stimulus that visual or audio that is correct and then there's an example of you can listen to a radio talk show that's correct so that's why i was thinking in my head while maybe on you know working on an opinion i've got a window opened up and a now i want to listen to my banjo view while i'm working on my opinion that's that's kind of the same thing right i've got my primary activity which is that the tap tap tap you know affirmed and then there is the background secondary content with his music i don't think it's the same thing for three different reason jarana first i do think the claims are limited to display display instructions and i think that in the other language in the claim when it says to a display and not to some sort of sound sort of image that's one too it's different than the example because the user has to specify the content and the source of the content and then the acquisition instructions go to that source which can be remote source and acquire the content and so it's a little different than doing something that is self contained on your computer let's say where you're just turning on the music and listening to the music and that's really the point that is made in a paragraph or in the first column last paragraph  column one is this invention is different than those screen saver and wallpaper programs because the images that they could provide were very limited why were they limited the patent tells us they were limited because they were self that they were simple self contained programs that were not going into great with other computer case or support getting i know you want to focus on these specific ideas of a screensaver or though wallpaper background of the display screen but just getting more into the idea of a user who wants to request certain kinds of data from various data sources say on the internet and then having that data scheduled in some way and then displayed in some way i mean that that in and of itself is pretty basic right that the key the key for you is that all of that is coupled to this attention manager and then what you think intention manager is that a fair manager then we wouldn't be here is that right i think there's a good chance of it in say attention manager that was in the invention they wouldn't even fall for the patent application you know if it was just using the internet to get content i don't know that there is an invention here at all and that's really the the things that has puzzled me a little bit is exactly what is an abstract idea because that's what the judge said was wrong with your patent it's an abstract idea with your claims and then the court goes on to say this basic in longstanding practice there's something that's basic in long standing necessarily the abstract no your honor no no welcome back to that can be found in for example a television stations use of a breaking news ticker across the bottom of the screen text only etc this is the one i like generally a lawyers legal assistant like provide her with messages or mail in a manner that does not interfere with their primary activity participating in a conference call this could be accomplished at a time etc my last click no it came in the my chamber sathan room while i was working on something and interrupted a to tell me about something else and i told him he had to get out because he was an abstract idea do you think that's really a natural act idea it's very difficult to draw the line between where what is and is not an abstract idea traditionally i  think of an abstract idea something that is performed mentally it's performed by people that's that's what an abstract idea traditionally is ok performed by people performed by persons yes sometimes so then you know if if someone is in a meeting and then another person writes a note on on a piece of paper and flies it next to me and says ok the lakers are now losing by twenty points one we would regard not as an abstract idea regardless of how we might think of the term abstract idea in a different context for section one hundred one purposes we would think about it an abstract idea i think in that context limited to that situation yes and then if someone instead sent me that same piece of information to i don't know my beeper that would also be an abstract idea limited to a particular technical context which wouldn't make any difference i think at that point we have to start asking ourselves what is the claim what what is the claimed invention as you the actual fact that there is technology involved in actually kind of falls into the background of of what's in there which is really the exercise because the real exercise is to transmit information to me  in a way that doesn't completely overwhelm what i'm trying to get done and first place if i if i could just change the focus a bit i think what has to be done in step one is to do is to determine what the purported innovation is what is the improvement that is in the claims and if you characterize the claims in a way that ignores the improvement then you've done something wrong if you could is the judge did here the characterization here ignores the improvements it literally encompasses the prior art screensaver and wallpaper programs yet our focus ought to be in section one hundred one whether or not there is an improvement and if so what is the improvement and is that it strikes and so the question here i think is is the improvement abstract is the characterization is clearly wrong because it's completely untethered from the claims and ignores the improvements that are in the claims it differentiated the prior art screen savers in the wallpapers because of the ability to go beyond the mere screen saver and wallpaper program to get content from external sources that were identified by the user that's the improvement how do we know that's the improvement but look at what's in the claim the claims that during the operation of an intention manager and then the tension manager was construed you know i mean when when i look at my own computer right now i have you know my window up with the end you know i'm working on and then in the corner i see a clock you know that's contact the secondary on the cont that is not interfering with my primary activity i mean arguably an active and fit in the attention matter if you look at attention manager or alone and don't look at march tenth and don't look back to march of one thousand nine hundred six and look to present day time then there might be other things that appear on the display in addition to the primary interaction let's take ourselves back to march one thousand nine hundred six what was available at that time to do that screensaver some wallpapers that's what was available they were self contained they were simple that's what the specification tells us what did they not have they did not have the capability of having the user identified that it wanted content from a specific  environment so if i have my word document up then i'm writing on it in a document document window the the secondary set of content zooming we're just talking about visual content not audio content it's going to pop up on somewhere on my display screen that does not overlap with my word document is that right that's correct your honor so what if i dragged my window document over to that side of the screen where the secondary set of content is what's going to happen is that are they going to be now overlapping each other is one going to be hidden from the other or does the secondary sort of data get migrate over to now the left hand side of the screen i was just wondering how does this actually work but i'm sorry i didn't see in the patent specifications how you've come up with the it is displayed in areas of the display screen that is not used by the users primary activity so that's that's a reference point here there are examples that are provided for example in declarations that were submitted from the actual source code that was used in order to implement the invention it was submitted as part of a square behind but let's assume we don't go thinking of my document window doesn't cover up the entire display screen but then i'd click on that little square icon and then it gets blown up i understand your question your honor i think what would happen is that secondary information would go away in that instance if i understand the hypothetical that you're posing but but there's other aspects of the claim that that provide the improvement and in particular it's the user interface instructions the acquisition instructions and the scheduling instructions and specifically when we look at the user interface instructions those along with the acquisition instructions were what was used  distinguish the prior art because the prior art back in one thousand nine hundred six did not have the capability to allow the user to specify the secondary content that was going to be displayed either in a screen saver or in in addition the use interface instruction instructs what to do what the user interface instruction your honor requires enabling provision of or user interface that allows a person to request the set of content data from the specified information sources so it's sort of a menu or something some kind of option providing screen there has to be some sort of option provided screen there has to be some sort of screen where the use specify i want this content from this source and then the attention manager has the acquisition instructions that takes that information and then goes in acquires that data without further user input without any further user interaction and it may be updated it may you know go once a day whatever the scheduling is it will go on acquire the information it will then be stored on the computer and then it will be scheduled for display according to the scheduling instructions you  there when my law clerk came in to interrupt me was he an abstract idea do you think he was an abstract idea no it's not obstruct however ideas about the legal assistant was providing an abstract idea of the trial court said the lawyers legal assistant maker vide or with a message with messages or mail no content discussed in a manner that does not interfere with their primary activity participating in a conference call this could be accomplished at a certain time warner's certain location and that's an example along with the t example of an abstract idea i'm having just a little bit of i'm i'm slow in this area because i have a little trouble trying to understand exactly what is abstract there are ideas that are abstract in fact an idea itself is a kind of an abstract idea but an abstraction but no a coming into my office was  again a computer readable medium encoded with one or more programs for presenting on an otherwise  unoccupied display device instructions for baking a chocolate cake comprising acquisition instructions for enabling acquisition of a set of content data to a user and if  using the the the stuff that follows and playing a scene would you be up to the view that that too is an abstract claim if i understood the hypothetical right we've got the same claim except it's a limitation speak up please sorry if i understood the hypothetical right it's the same claim except that it's limited to instructions for making a chocolate cake liking a chocolate cake and the answer then is that the idea i mean the chocolate cake would not be abstract but the idea was out there making a chocolate cake is an abstract idea you had the idea sure and the idea of doing it and then the question is if the idea of having you stand in front of me and tell me that is an abstract idea we could say that we're not actually in this room the cause we have an idea we're in this room and therefore we're all abstract you know there's a problem you you you see the problem with this so that i understand the one who has to guess you with the abstract idea formulation but i mean i do but obviously the way that this report is laid out the law is that if we have enough of organizing human behavior that we don't blame it on us but go ahead the source or characteristics of the e mail did we describe that as a method of organizing human behavior yes done on a computer and i mean that's a phrase i didn't remember symantec that's a phrase that i had i g always associated with the creation of obligations and authorities between people which is what takes place in commercial in the commercial world but the words themselves apply to you know what goes on a chemistry lab and this at that at that take out this heat this that's all human behavior so it's got to be more limited than than that but the category of abstract ideas is unitary it's not just the come kind of commercial stuff it's not just the stuff that goes on inside one's heads it's not just intangibles it's also generalities as distinguished from concrete implementations as i think we've come to come to stress and so and every one of those distinctions i just said is you know has much greater area around it but and it's all put under a label abstract idea that has itself lots of room for implementation but here we have i take it this is deciding what information you want get it get in a way that doesn't and displaying it in a way that does virtue from whatever else you may be doing right so it's the you know the whole practice with the with the assistant of you know who's put a note on my on the corner of my desk to not distract me if certain things happen on a certain hour every half an hour a system that displays images to use either in the user is not engage in a primary interaction or in an area of the display screen that is not used by the users from memory activity agreed between the parties that the primary interaction and i guess i'd sort of taken if yes and assumption among the parties that we were talking within the round yes shannon was talking about about a primary activity on the computer and then a secondary without distracting me from my primary interest which was there in in the debate about clean construction or any of the proceedings you know there was this question from wise with the primary activity can itself have nothing to do with the computer but you didn't think this claim could be attacked this indefinite the other claims that were held to be indefinite used to claim charm that's not in this class that's not in this but that's happens to be the language of the other claim you didn't think this claim was sufficiently and definite the raise that issue with the trial judge who liked that concept i take it well on remand i mean by the time this case got back on remand you know alice had been decided and parties agree the teeing up one  implement this through the screen saver if you die which is then commonly found in current operating system such as windows so it's not saying what it's saying is no technological improvement just that a p i is already there already delivering content as a screen saver you can just live written descriptors well sorry is like us to say amdocs you noted one of the key things here is is there a technological solution to a technological problem and a good place to start in order to figure that out is what the specification of self says about the claimed invention and then with back to the wallpaper environment which embodied men which agree was in the structure is not really wallpaper so much it's just using a part of the display screen that's not otherwise in use so i have a window open i'm using at if there's any different context for the stock specifically if multitasking is allowed by the computers operating system which again is just confirming repeatedly that all that's going on here is if the computer has this capability then you can use it to deliver different information the specification also says in about eight different places that it's using conventional computer technology you know conventional digital you point you to the few things that are going to conventional  technology i guess i want to ask the counterpart question of my what's missing is there anything in the spec that says here is a new way segregating a section of the display screen by a new display driver that that does something that hasn't yet been done on computers and their displays well i mean only if only to the extent that one of three obviously and not a novelty that there's one or two but still the question still remains one of want to still there and the question is if the outside if it's an absolute if the claims directed to an abstract idea and here before get t technology it just says here's something has been done on computers before you can use existing computer technology to do this new thing on computers and this court by now has countless cases folding that by itself you know the best answer to my chocolate cake  idea maybe i wasn't clear on my hypothetical was instructions for how to bake a chocolate cake how to write was the idea of how to not a chocolate the idea of making a cake especially  how to make a chocolate cake acquiring that information and then displaying it on the screen i guess you'd say that's the abstract idea yes i mean the obviously that trying to read information and that entire exercise we've concluded in different cases is more or less without more an abstract idea yeah i mean like cases like were mostly accessing user specified information as an abstract idea infinity labs are lots and lots lots of these cases and whether it's about whether you're pulling out you know singing wasn't for a parrot or whether you're singing pulling up something or ten dogs and cats or whether you're pulling up chocolate cake it's that it's all concept the theory could be it could be anything not a theory that could be within the claim scope the point is that what the claims are directed to is this idea of providing information in the allowing the user him or herself to be empowered to go out and select the secondary data and and that's the twist and so now we  a composite display of data the primary data and the future selective data so now we don't have this is unlike a situation like when you're watching the news and there's  deliver you give me certain types of information a certain times but also the court has a ton of cases now you know your indemnity accessing and receiving user specified information is an age old practice affinity of labs you know customizing  interface is an abstract idea and the specification here just says that the user interface installation instructions are conventional and readily available that's kind of space thirty eight column sixteen like fourteen also any appropriate user interface such as graphic let me just start by responding to the question you asked earlier about primary interaction there is an account there is a construction for primary interaction it's on page nineteen of our opening brief it was actually agreed to during the marc main hearing in the case in  thousand of the brief and you can also see it in column a times ten through twenty of the patent itself and what it says is any operation of the computer that occurs to enable or to support the performance of the function or functions that provide the basis for the user's and then to to respond to the point the judge pleasure made earlier about where you could just go after them on one of three when they tried that judge they filed a reexamination early in this case in the case was stayed one of the reasons we're eight years into this case is it was delayed several years for reexamination and the reason i raise that is the reexamination very clearly identifies what was different over the prior art and it wasn't the abstract idea it was the user interface installation instructions the ability of the user to specify what was going to be provided in that secondary content and being able to get that from a remote source and you can take a look at the appendix page sixteen ten which is the  the primary set of data and then well who chooses that second set of data is really two choices either the user or somebody that's not the user and so i guess the question is why does it make a big deal why it's one category rather than the other category in terms of being regarded as inventive concept when it's you know pretty old and basic for a user to be able to select what kind of data he wants to look at there are actually three different ways i believe in which the information could show up one controlling and choosing what is being displayed in both both little displays right and i don't remember if that was conventional back then or not what i do know is the only evidence in this record about what was in was not conventional is the prosecution history and it says it wasn't conventional that's the evidence were at the stage of a judgment on the pleadings there's clear and convincing evidence that is required in order for them to prove their case and we have a situation where a judge with no evidence on her own decided that this entire claim was conventional what is the evidence the evidence is what was beef it is the intrinsic record it's the specification it's the prosecution history the same stuff we look at  construction the prosecution history here tells us that this was not conventional what was not to mention it was the ability of the user and the user interface to specify the content and the ability to go acquire that from remote sources those two things were argued over and over again in the prosecution history and ultimately that's why the claims were allowed and the reason that's important is those are not abstract ideas we have a situation the mayo situation where there may be an overlap between the novelty question and the one no one inventive step question the this is the exact same fact question with respect the novelty question here focused specifically for example on the user interface installation instruction that is not part of the abstract idea and so the mayo foreshadowing is occurring here we've got a situation where the evidence that we have right now at this stage of the proceedings tells us that this is not conventional and then the other point that i wanted to make in just a few seconds left is the step one analysis has to look at improvements it has to look at improvements if what you're doing is coming up with an abstract concept underlying the invention that is not tied to your look at the kind invention thank you thank you very much thanks to our counsel the cases