may please the court i'm here on behalf of the university for the research foundation to raise two arguments on appeal the first argument is that the sovereign status and state of florida precludes a private party from coming in and basically destroying sovereign property rights for the benefit of a private party even when it's your client that's bringing suit yes your honor and this is no different than the college savings bank context my client is free to infringe anyone else's patent at will and they can't be sued for infringing someone's patent that's why clear law to stablish it's every lawyer on our new mexico university of new mexico beans ni i don't read i don't read night to limit wavered on only can compulsory counterpoint well then you also need to refer to verses the university of texas own way wait wait wait wait wait wait wait well we can't stick tonight because night is an earlier case and after night came other cases that made it quite clear that only compulsory counterclaims are available to assert against a sovereign just like we don't stop them are very verses madison we can't counterpoint well when you say it's not a counter claim i am assuming this is a variation of your argument that it's not an argument related to validity is that right no it's not it's an argument related to eligibility and eligibility invalidity are not the same thing but we have multiple cases in which you have held otherwise already so how is it that you think this pan know and the reason why is those do not involve sovereigns there is no sovereign case and the sovereigns stand in a very unique position and believe me i've been dealing sovereigns for my entire legal career on both sides and sovereign stand in a very very unique position as the other way to get your argument is predicated when the idea that section one of one is not a defense under two eighty two that is not a argument to the patent is invalid different questions those are different questions what i'm saying is absolutely it's not a compulsory counterclaim it's not a counter claim at all much less compulsory counter kleinian you're saying so they're not even entitle to entitle to have  because the only thing they can have compulsory contemplate now then you're saying even if they were allowed to have the things they could once know what i'm saying is there are two buckets there's a compulsory counterclaim bucket which is a claim for affirmative relief for action that's what a claim is and it has to be compulsory based on the exact same transaction or occurrence as the original claim that's what a compulsory counter claim is this is not a compulsory counterpoint and then you have the bucket of defenses defenses are not the same and issue because i wasn't eligible for patentability right and that is what stepping that's a huge difference because that's stepping into a contract between the united states of america in the state of florida and that is saying on behalf of a private party said it was invalid because it was obtained three one twelve it's not the same i assure you i know the judge who wrote this language well it's not the same one one is not the same as one of the two want to free one twelve their bid because those have a patent right now in arguing why i should disregard the language but as a decide i don't think you can disregard it but you can certainly differentiate it here you have a private litigant going in trying to interfere with a private contract with the united states of america and the state of florida i sovereign are completely different to what claims you can bring against the nonstop i mean when the south has been able to find the sovereigns acting as a business and things change don't know and in fact that's what college savings bank said that when with the seventeen zero doctrine but what we also have is we have thirty four hundred thirty five people down the street who have to run for election and if they want to invoke the fourteenth amendment waive sovereign immunity and undo the contract between the united states and the state of florida they can do that they didn't do that in two eighty two they did not waive sovereign immunity and you're telling me the fourteenth amendment still good law fourteenth amendment is still good law and only the fourteenth amendment still good law there supposedly are some wholly capable people down the street of invoking it where they can i have no idea reflections have whatever power the three of you want them to have whether or not you believe it will reflect on them you can reflect on that i mean but whether or not you believe those reflections are valid or not valid that to fix it if they want to fix it state legislatures can fix it if they want to fix it but that's the job of congress or state legislatures there is not as a whit of discussion of waiving sovereign immunity in the patent act into eighty two and want to one or in any other part they didn't talk about it and you can't just imply that that's going to happen when it is never mentioned a waiver has to be clear unequivocal open it has to be absolutely stated it's nowhere in the patent act it's nowhere in the legislative history it's no where you want to one it's no where in to eighty two you can't waive sovereignty because it's fair sovereign immunity is always unfair to the person who has it asserted against them believe me i've represented babies with aids or got blood transfusions from state hospitals and they got wiped out on sovereign immunity this isn't about fairness it's about the structure of a multi sovereign democratic nation where the dual sovereignty is absolutely enshrined in the constitution and if we're going to vote well one on one this is a classic i don't even think this is close on want to one what we have here is a completely new function of a system we have the original components of bedside monitoring devices everything good everything there be done by a human being absolutely not and that's why people died that's why people i know who died who later on they go in they grab her all the records and they sit down they figure out two weeks later in a big review committee about oh this is where it started that's where that's where the respiratory rate and the blood oxygen right started to dovetail away from each other neither machine will a long arm because both of them are within their normal limits and then you add that fluid retention where directs could have been given we didn't see that because that machine also didn't alarm but when you had the ability to make all these machines talk to one another very specific means drivers segmented to look at tables specific methods not have them not not not broad ranging statements but specific methods and now you have the ability for them to know what the other machines are doing you can make combination alarms you can save people's lives this was an entirely newly functional system never seen before millions of dollars were invested in it billions of dollars have been sold systems that do this this is a fleetly new paradigm in treatment it's also a new paradigm in clinical research it will allow artificial intelligence diagnoses because unless you have all of the inputs and all the inputs talk to one another in real time synchronized you cannot have a i diagnosis this is not something that this course and say is not patentable because not only it new functionality it's a new means it's a new method it's never been done before this is not close to me this is this is far far beyond anything that would be padded eligible is an james martin your honors for g e first off on the immunity question from our perspective is the briefing reflect sovereign immunity is irrelevant to this case let me ask you  the state yes ok thank you so the concept is potentially a flexible but as i said irrelevant and that follows from a three part analysis the first thing is that certainly sovereign immunity would deal with counterpoint but we don't dispute that whether it was the eleventh amendment or state sovereign immunity written large of what we don't have a counterpoint we have an affirmative defen course yes but but the point is that it's not excuse me it's not a counter claim an affirmative claim against i understand your point that affirmative defenses are permissible if the state has itself wa me by bringing and i don't really think he even disputed that he then went to but this isn't a proper defense or to eighty two can you deal with that well can i start with the waiver point first because i think it's broader if you could defend that there would be lawful taking well at the end of the day constitutional violet would be it would be a due process violation directed at us so that the waiver is broader now as to the one zero one two eighty two issue that is settled by dealer track it is specifically by over saga where the same argument was advanced and made and rejected over hundreds of years of precedent that suggests that one on one has a patent validity defense and that's the way the statutory scheme was what is what is the one hundred years of precedent what are you talking about well i'm talking about the quote from  graham case as i said its inverse it's in bascom it's in dealer track so you're that even if we were disagree with that language that's not relevant because we're a panel and we can of panel decision in this case controls it says so even if i understand your point this doesn't even have to be pigeonholed into eighty two in order for you to prevail i understand your bigger point but on the smaller point your argument is what it is covered by two eighty two because at least two prior cases yes i see said so and the in that court would have to act to say otherwise i agree with that ok is there anything often that you want to cover because i actually want to move the merits of yes only that the s case is that latches only not only wasn't listed but it was in conflict with what the statute provided there is no inner consistency or conflict with the statute here a number two in in a ca hygiene when the looked at the defense of the stoppel which also was not in the statute but not in conflict with the statute it recognizes that a stop will could still survive so in s c a hygene we don't have a discussion of one to one versus two eighty two and eligibility you have to go to the claim element construed in light of the specifications and look specifically at that language to see if there's an inventive concept but one of the things that confused me when opposing counsel was standing up and he was claiming this it's never been done before it's never been done but on column two of the patent really mine was and it talks about how this could all be done with paper and manually with people integrating this psychological physiological data it just says that would consume substantial human resources and increase the likelihood of errors into the process because it would be done in really but it could mean the patent expressly says on its face the very process that they're claiming  this was being done by humans before we figured out you can use a computer to integrate all the data and have fewer and do it faster and more to do it better right and if you go the claim or the specifications are all of the components of the system basic components that there is there an argument that any of the individual components are new novel components like i think that they've made some arguments about the drivers for example because sometimes you know you can create a system and  component of that system is you know inventive such that even though it's something that could have been done by planting for it's not just taking a generic computer it is we have created a special system that's capable of doing this that never existed before and is there anything along those lines that you would like to address well throughout you is i agree conceptually that the component of this system if properly claimed could give rise to something that's patt eligible but when you go to the claims that relate to the driver or the tables which are the two features that are specifically mentioned you are not going to find with this court has insisted on which is the technological hawk the improvement the extra language that specifically claims a change in technology functionality computers or short flames of the driver so the driver  the language what you get out when you look at the driver is you get convert you get interrupt you get facilitate you get interpreted in the columns but in numerous cases where we said we were back to collection analysis display and that is not the inventive concept that gets beyond the eligibility inquiry and there know the either the inventive concept we know has to still reflect the same kind of improvement that's the difference it's not just that the solution those lightnings yes if they're good if it was claimed but it's not to three paragraphs with a question mark i can direct it to them but i don't think it's probably necessary on column seven when it talks about the driver and this is one of my i guess this is my fourth power next to it the bedside driver  also contain a driver for each different bedside machine connected to this driver can be used to translate the data each driver can have knowledge of the additional drivers can interpret the data well i mean how fright how is it done it just happens that that's the hole in the analysis and as we know from cases that have been decided has worked twenty j letters unfortunately reflect right up to the present technology is it is a perfect illustration of the tension that's going on here or the or the dispute and in b s g t acknowledging what was in the claims was the solution it never got to the house and the court appointed out that under alice it's how those specific elements are claimed that matters and that's where this patent falters that's what the district court concluded walking through it that analysis is consistent with this court's case law and it should be affirm it talks about segmenting the data it talks about drivers absolutely done for each individual device this is not the situation i mean using the logic that we've heard here tell me where in the past you  device can communicate so these are these drivers have i'm sorry how well then we talked about synchronization segmentation call in three lines twenty seven t thirty five machine independent format dynamically match with discrete workflow data elements for example a data stream three or c for each of the bedside machines and a transport protocol particular one of the beds i'm scenes can be determined for each da transforming of data at column five lines thirty three three thirty seven i mean we can abstract anything column five thirty three is very seven that's a giant house next to it and i think the immigration system can receive information including physiological information from multiple sources transform the information into data elements formatted according to a data screen we have no idea what it is scheme and we've absolutely no idea how this transformation is to take place because there's nothing in the  all done by human hands yeah people died it was not done by human hands so what was said i asked you that question i didn't get to get in the fact yes he said what's in the spec wasn't true no what was in the spec was the prior 's about human error in transcribing data if you were to try to her was she to write to him you know the telephone tag thing but what we have here is a situation where you have bedside machines that don't talk to one another they all are independent they alarm independently they read out independently and figure out what happened to particular patient a particular time you have to go back and you have to figure it out and we had expert declarations that talked about this in great detail none of which were refuted they offered zero evidence there was no claims construction what a driver means there is no claims construction on what segment it data means you can take yes you can take those terms out of the client and you can construe them consistently with the specification and you can get a much narrower result if that's the but there's no preemption here there's zero preemption risk they don't even they don't even argue there's a preemption risk we have but we had expert declarations unrefuted we never got a claims construction we ought to have at least the opportunity under a trick software and other cases to go in and make them put on a case of this is conventional use of these of these components in fact it's not conventionally used because the only evidence of conventional use is that they were each individually they were never used together i think you