perhaps we shouldn't but was there a particular is a particular point that we relied on that you your have a new concern with not sure if you want me to please page ten of your brief you say dismissal is only appropriate while pleaded allegations in a complaint cons both on the other hand i'm exciting that's very clear that's fair and i think i'll be honest one of the questions that i had coming into today is what exactly the standard is for review at this point of the rule twelve i think both parties here have said stated in their briefing that it's a clear and convincing standard and now there's been some disagreement about that at the rules twelve stage and so i think that's one issue that i certainly have a question about and i think that's if i understand your question correctly i think that's something that you're pointing out to me so it but it just gets back to kind of the look the overview the the way this technology works is a patron will come into a wagering establishment and will be presented with information anonymized information about a historic race and say a horse race with the horses way with the track conditions are and so forth the patron will then place a wager based on what he or she believes is the right outcome then the outcome will be revealed in our invention it's through a video replay of the actual event to determine whether that wager was a good one or a bad one whether that be true received money or not there are parimutuel wagering on a past historic race that is an idea a new idea but it's also the methods and systems that are implemented to enjoy that idea so i would submit that the combination of a that there is i think a huge difference and the reason i say that is it really isn't any technology but at least apparent to a wagering on current live races because all you need to do is watch the race happen and collect your money the entire technological infrastructure that is claimed in this patent these patents relates to the particular elements that are required to allow that past race to be used as the engine that g jockey weight and so on and it spits out what race that was in the past and then i place my bet based on how i think the information that is provided is so anonymous there are so many races and the information is  so discrete that it's a darn near impossible for you to have that kind of table where you can cross reference and find you actually that's the point of having this database of races that it's so large you can't know the outcome no one had the idea of parimutuel wagering on a past event before and the systems that we've claimed in our patent are specifically designed to make use of that new idea so we have a new idea and we have new hardware componentry and software configured to implement that idea i think that's the key distinction between cases like alice and what we're talking about here today what's i'm puzzled by what you think it's new to implement the idea except that you look at a pas fifty and fifty one in the record and to answer your specific question to conduct a pair of usual wagering game using live events you need none of what is in these you can sit down and that one race is going on all over the country that's correct that's exactly right the difference between those those technologies and what we have claimed here and by the way that the patent talks about plugging into those allowing this new system to also operate as one of those older systems do nothing but display the possible race on which you can wager and allows you to be a place that wager this system as a whole host of new elements which includes presenting anonymized information which didn't exist and doesn't exist by racing showing video of the results which doesn't exist and didn't exist with respect to live wagering what you mean course i mean that's what they're doing they're sitting there watching the race and seeing when it's well that's that's a live feed from a are exemplary one is the need for a system that houses and and shows anonymized information about a race that is new that does not require to do live parimutuel wagering because there's no need to anonym only didn't exist but can't exist because you can't store of value of a race before it actually happens and so those are elements that are necessary to enable this historic wagering you think that there were no videos terrorists that that correct that's correct i mean where do you get that video footage from well the video footage is recorded simulcast video so it's the live video recorded and stored right i mean you can go on to any number of websites and go back and look at any historic  continue for just a moment two things one although i agree that of course of a the concept of a computer that stores a video that can replay a video is nothing new and we're not claiming that that's our invention i will say that other elements of these claims for example the gating server and the types of information that has to store and feed to a doing terminal that is new because that hasn't been done so i think the video service is particularly susceptible to concluding that nothing's new because what it is but the other components are new and there's no evidence in the record at all that those can be those components have ever existed for me were real twelve here on top of that we also have to look you have to step back and look at the combination aircraft we didn't invent it and your music are off the shelf computer yet that's correct for the most part reason off the shelf computer equipment but just like the baskin case for example just because we're using off the shelf computer equipment doesn't mean that we can't have an invention and we're not claiming that we invented the dell computers but one of the things we say you can go out and buy we're saying that here's here's the issue you're saying you're gaining server is new where i claims you want to say gaming server does it describe in detail with a gaming server the deepening claims i would give you as an example provide information about the role that the games are plays the types of information that it stores the databases what information it feeds into the gaming terminal so there's so there's i mean if you're a violent types of information how is information we're not relying on the information it's the it's the role of those those each component has very specific roles are if you look at claims sixty or seventy one they are completely abstract descriptions for example sixty one says receiving money from a player status or alex select randomly selecting for historical gaming event receiving player winning so winner selections in determining payout to player based on results of historical gaming of that one player selection well it's not the record i think i may have done that with my friends on occasion when we talk about who won you know the one nine hundred fifty six world series or something let's bet on it and then let's look at up on google or something but clearly claims sixty  through seventy one have no none of this computer stuff no video servers nothing of that so we wanted to start there because one of the things they complained about in the replies we thought we didn't talk about the point so let me talk about the claim sixty one three seventy one has nothing in it in there it's a very generically well it actuality if you look at the claim if you take the preamble out you're left with nothing you're left with a video server comprising a database having video images of gaming events server what do i hacked when i when i put all those pieces together the video server the game server in the terminal i don't know i have to go look at the preamble to find out if there's any invention in the preamble says a system for parimutuel wagering on actual past events so that's the only thing playing one that arguably could be argued be new that's an abstract idea as shown by this court's decisions in cases like planet thing going in ray smith so claim one has nothing in it sound card a credit debit card reader well that's all conventional stuff you'll find on gaming machines that have been around for a long time if you go to las vegas and look around i mean that that is not new technology in fact that's the entire problem of this path is that they came up with the idea of look people are going to the gaming parlors they're going to their racetracks they're betting on simon camps they put their money into a machine that they pick the winner and then they watch the race and then they get paid of their lives and they said you know what let's change the video to a historical rapes and there's nothing about anonymizing in the claims i have not found any discussion in any of these plans work says where the person came up with a blackjack game and they had that one twist in the blackjack game where if there was a of if the cards add up to ten then that something else happened then what normally happens in a casino when blackjack but this court said and ray smith now this is abstract you you need to have the something more and wagering is the type of financial activity just like in alice i mean one could argue that investment is nothing but wagering by a different name it i mean we could spend a lot of time and money for me to go out and try to find prior art or somebody at back one of the old sporting events i probably would find it pretty easily i'm now white horses never won the kentucky derby computers shoes were developed and which that the card counter would tap the numbers in write very early technology right well you could with these machines theoretically go out and if you spent a little bit of time and it's scary to our clients that somebody goes out and little bit of time access is the database and you probably won't get all the races that are a machine but you might get a substantial number and if you sit there at the terminal with your new computer and you say ok here is the data given tell me which race this was you might be able to pull that off i think what would happen is the same thing that happens in los vegas you would have a very courteous security guard come over and say excuse me off a lot more time developing their systems and then the money right by our well there are systems where but by which is even las vegas you can go after slot machines if you know what you're doing but so this game yes would be get example betting on a historical race the state that's what that will be is really all about you remember they're trying to get him they say we know how the race turned out and better not so there's a a well known example of betting on a historical race saw the only thing i'm going to have aside is there was no technological impediment there's no to new technology here there was no use of algorithms to solve some technological problem which simply how do we get people how do we find a way to get people to fast on old races and the way we do it is we just show them the old race and say you can  i think the problem you have here is a gross oversimplification of the claims things that my colleague just mentioned ignores all of the actual limitations in the claims he said he doesn't see anything in there that relates to not in my eyes data and claim  referencing a menu that shows historical research data we have not done claim construction we don't know what these terms mean other than whatever the defendant wants to craft for purposes of one of one arguments and i guarantee if you were to if we were to do a claim construction it would likely be construed that way but we haven't done that yet and that's part of the problem here similarly we have not developed any facts you heard my colleagues say that's something i did with my friends or go to vegas and look around that's not in the record the record is a rule twelve record of the only thing in the record is the specifications saying this invention is new and no one's ever done it before and there is zero evidence to refute that so how can we invalidate these claims without cl construction without truly looking at representative claims councils happy to whine about point of claims is another whole point of alice in these places that you may come up with a new way of using an abstract idea with a computer it still doesn't make it eligible it may even be a new idea of a computer using a computer that can make money but it doesn't make it relevant i think where we have that in our say alice is all about saying we're not going to let you by saying do it on a computer capture something that is old and well known what alice doesn't stand for and what cases like d d r and basket on and others stand for is the cross possibility that someone can come up with something new and just because you're using a computer to implement it doesn't mean that it's not inventive you can still get a patent if you can show that that thing has never been done before it's enough that if that hasn't been done before the question is is there  technological improvement how side of the abstract idea that provides the something more in step two under us and i guess i'm running out of time my answer would be i agree but it doesn't need to be a solution to that to make the computer better