court erred in taking this case away from the jury at the end of barred infringement case in chief bar had entered ample evidence room with a reasonable jury could conclude that and you demand that infringes all the claims here and the basis for the decision i don't think summary judgment on to the patient is the basis for the decision there because the court's at the end of the trial when he when the end of the trial after our infringement case the court said nothing about anticipation cutting in but appendix page eighteen it seemed to me that the judge at that page was suggesting that the claims were matter didn't have patentable waste so it didn't help you against these other other things it's a little bit unclear but i read that eighteen is sort of getting it possibly validity by anticipation or ob i do i do think that you know it does seem like the judge at the end of the trial terminated because he thought these patents didn't survive one i won and i think that's clearly wrong i think these patents are eligible at step one of one hundred and one and if the marker that must be pursued which is legal basis that we would make make that determination i'm just the procedure problem i have with the cases i don't know what the judge did and because i don't know what inquiry and and here dynamics under burke time are for the burden to prove that by clear and convincing evidence and at this point in the trial it has answered i hadn't even put on its case and so you know the judge faulted us in the colloquy that i think you're referring to judge raina for failing to prove our patents valid and that's fair in itself and that alone would be a basis to reverse without having to decide any of the  fifteen at the time where and that to me seems to be the most clear section of the of the court's opinion that addresses eligibility of course it does are directed to an abstract idea with or without the printed matter i guess first and so i think that the st step of alice doesn't play any role the printed matter and you know that manics has never argued that these claim are directed solely to printed matter and under this court cases then just look you look at this report you look at the claim as a whole and i just heard there earlier the claim as a whole is directed to a very concrete valid which is that they require a step power injecting the patient and understand unnatural alternatives that's an additional reason to hold them about it so it step one of us i think you could hold these patents eligible to be patented without considering princes matter i think the printed matter potentially comes in at step two about the scanners but i think you could also find that they have failed to show that that that that there's a lack of an event concept here that would be their were and were in innovation and so and the fact that you know courts were later found to be able to withstand power inject ability shows that it wasn't routine and just large paragraph that starts off the court finds this case is nothing but a labeling issue and then it goes on what do you read the district court is getting at in that paragraph in other words what is the judge district court saying or ruling in that paragraph i think the judge sorry i don't know that's i was just saying i'm trying to figure that out again i think to the extent this is a mystery judge at step one don't focus then just on one element and that that that is a real area supposed to look at the claim as a whole to thought whether it's directed to an abstract concept and these claims clearly aren't me i think i heard them let me ask you if i if i could indulge my panel colleagues and ask one question here we have a decision of the magistrate in which she ruled that  there was a printed matter problem here she said the printed matter didn't have patentable weight as i understand it and then after that the district court judge without going into any details said he that one issue i just discussed the judge still but if the court does want to clarify that i think the district court is wrong in finding that these claims that the that the radiographic letters in these claims do not receiv printed matters directed to the contents of the information and not even to the means to deliver that information which is the radiographic marker i agree with that ok my next question is if we were to to send this back would we have to make some sort of combination printed matter to give guidance to the to the to the court i think it would be helpful to do that to dream and st i want to say i agree with you that even if the information conveyed by the radiographic marker i'm here thank you your honor may please the court this is danielle tell me arguing on behalf of an geodynamics judgment with proper here because there were no disputed facts and all the evidence showed that the claims amounted to nothing more than a patent on the abstract idea of identification itself all of the assorted claims are directed to the abstract idea of identifying information about prior art ports using industry standard  idea at that point counsel was invited to argue and rather than addressing step one at that point counsel moved on to step two the fact that the court addressed step one is further confirmed  fifteen of the court's opinion which just all pointed to the court expressly addresses the abstract idea of identification of a label and then the court moves through doing a step to analysis for instance if we look at dollars to thirteen dollars the court correctly held that each of the claim elements are directed to generic recitations of prior art ports industry standard labels and standards of care that routine well understood and conventional as a fourteen dollars to fifteen dollars the court says that the evidence of trial supported identifying ports capable of parent action by means of the medical record the patient history the product patent eligible subject matter so i was trying to you're absolutely right in terms of what what the judge said there but i was trying to think when i was preparing the case and looking at this and saying you know is the judge saying here these claims fail because they don't meet one hundred and one or is the judge saying these claims involve printed matter and it doesn't rise to patentable weight because it's not functional i think here your honor the court is citing in remarkable dinner and the core is recognizing that the only inventive concept that bart pointed to throughout this case is actually the printed matter so throughout trial the artist pointed to two inventive concepts and one is the identification of the ports and that's the abstract idea itself the nd is the information that's conveyed by the identifiable features but as this court to simply provide new instructions for an old product and continue to patent them and that's just can't be the inventive concept and here i think the core is recognizing the fact that the printed matter can't be what the inventive concept is and the abstract idea of identification can see what the abstract concept what the inventive concept is so were the claims and so elves reciting no inventive technology for improving prior art ports structure functionality or improving the printed matter and a function well it's actually the information that has to have a functional relationship so it's not enough that the radiographic marker is itself located on the port for instance and a court held that it doesn't matter what where where the instructions are located if they're on a label the instructions must actually be related to the underlying substrate to cause it to become a manufacturer with new functionality  other no no your honor it doesn't just because the radiograph and that's actually highlighted by the fact that the claims also include separated features the separated features are clean just the exact same way as the radiographic markers they provide no  structural details for either and the separated features are things like stickers and key chains and labels so the fact that those are separated from the port but serve the exact same function as the radiographic marker underc argument that their radiographic marker itself creates some kind of functional relationship also the radiographic markers the way it's claimed the claims are saying no structural details at all about how this radiographic marker has to be applied how it has to be viewed so that there's no structural elements to the to that plane element instead the claim why council sorry why isn't the freeze radiographic of connection to functional relationship with the port so again the fact that the radiographic marker itself is it might be a structural element it doesn't mean that it then has a structural relationship with for instance the  reason that these claims here are unlike the claims and reka because the x ray doesn't actually transform the information that's conveyed by the radiographic marker instead it merely conveys that information so i'd like to ask you another question label in their shoe and this whole paragraph really seems to be talking about the printed matter issue how do you read this paragraph so i read that paragraph again as saying that's the only invented concept the bar has pointed to throughout is the content of this information but again because the the content of the information isn't what makes the port power injectable it's not it's not it can't be enough here so we're just like in remarkable than our where the fact that the the etchings were on the dice didn't transform the dice into something new the dice always the dice was exactly the same as it existed in the prior art and here we have admission that this was that the ports themselves are admitted prior art here we can go through the patents say that the port structure was long known in the art and admissions came in a trial that far it actually did its own withstand a validity challenge in the face of prior art ok that's the way i was looking at the analytical construct am i right or wrong or that i understand what you're saying printed matter is actually relevant to both the validity and the eligibility context it does come up in and out in validity cases where it can't be used to ports there's nothing you know there's nothing abstract about them they serve a very physical purpose now then they will then they will be a validity issue in terms of prior  improvements to the tangible items themselves and here the claims don't we say any improvement to the structure a function of the ports themselves then again this can this is still an eligible subject matter where the only inventive concept again comes back to the abstract to address in eligibility at trial barred was not prevented from introducing evidence at trial especially not evidence of its inventive concept and its case in chief bard in this  she affirmatively told a convention story and in telling its story bart introduced evidence that it used off the shelf port for its power injection testing and that it had to make no structural changes to its off the shelf parts to have some structure for power injection as as the claim for construed it also introduced evidence that it used industry standard labels and industry standard radiographic markers to identify a sports introduce evidence that a sport already being identified in conjunction with c t procedures and just as noble pharma having introduced this evidence if there was any evidence related to an improvement it was incumbent on bard to raise it at that point  geodynamics was able to get further admissions on cross but in all instances barred had a chance to redirect to bring in any evidence that i thought was in dispute to show what improvements it actually added to either the structure or function of prior our ports something is routine or invention or convention well understood in conventional does have underlying factual issues as this court recognized in calmer but here were actually like the situation in berkshire where the the court found that  comparing did not transform the abstract idea into something pattern eligible so here we are just like that the pen itself admits that all of this all of the port structure was known in the art and that the  radiographic labels and the separated features are all known and they are and then at trial the same admissions came in that no changes had to be made for ports to be structured for power injection and that bart actually knew that doctors were already using prior art ports for power a measuring receptacles on one question am i correct in thinking and please tell me if i'm wrong that the significance of printed matter is if roy the happy smiley face on face the the the ports when seeing on a radiographic an x ray are seen when planted inside a body that's that's the beauty of it here and it's structurally related creates a easier to make fractional recipes you could still make fractional recipes without being vicious just like you know potentially you could power inject a port that didn't have a radiographic marker identifying it as power injected belief but this creates new functionality in the and i think that if it was stripped this time it would be one st impression one would you say that it's it's just that i think well i think you know it isn't your honor it's not it's not offended at that because of course when you're at step one you're looking at the the claim as as a whole in its entirety and if you view printed matter like the fact that there might be some printed matter and something like the fact