i'm going to focus on the one hundred one issues today and in particular going to focus on two particular issues that we think justify reversal of the district we're judgment the first issue is the burden that case as in any case every patent is entitled to the presumption of validity section two eighty two is clear on that point and that puts the burden on the person challenging that patent in order to be  a think it's a settled law is the supreme court's decision in microsoft the i p i made it very clear the presumption of a libby applies the burden is always there on the challenger never change and so it's a constant burden and that it requires clear evidence in order to be able to surmount that burden is that apply to both the factual issues and the legal or shares i mean if you look at justice breyer's concurrence and i'm from he says it issues we would disagree that you would separate them out that you would people burden and then say well it only applies to the factual issues in play not of legal issues in play how can you help a clear and convincing standard for a legal question but i think many evidence i mean you're using the word evidence evidence is not something you need to arrive at a legal conclusion i think with regard to the word evidence i think the better word a standard clear and convincing standard but let me ask you this hypothetical let's assume we know exactly what the reach and balance of the pattern is what it's directed to what it's claiming everything there's no dispute about the facts we are then does a clear and convincing evidence they've met on all those actually terminations they've proven every single one of those items by clear and convincing evidence when isn't just a pure question of law as to whether it's within the eligible categories and or want to wander not make sure i understand the hypothetical if all of the underlying factual determination is have been me you're asking whether or not the legal conclusion me by the court has to be made to satisfy the clear and convincing standard is that right your honor so i think in that senate scenario yes it still has to meet the clearing convincing standards a clear and convincing legal conclusion as opposed to a regular legal conclusion i think the court looking at what it has to decide meaning for a one on one challenge you have any support whatsoever where we've ever set a legal conclusion about the underlying facts that the legal conclusion has to be supported by a clear and convincing evidence standard i wouldn't provide you this court specifically referring to it's our interpretation that based on the majority opinion stating that clear and convincing standard applies to the one on one decision and then another four member group in a concurring opinion saying it's the clear and convincing evidence standard that applies our interpretation is that has to mean that the decision under one when still has to meet the threshold burden of clear and convincing that it's not you don't diminish the burden simply because one  a legal issue infected the in entire opinion that the court render whatever the factual issues underlying the want to what analysis here what are the factual issues sure and so i think there are several factual issues that come up in this case i think in particular two that are important  the court looked at what it considered to be known and routine components of the claims it did this without really focusing on the actual what would be the facts that would concern on gene but stated that these are known and routine elements a factual determination to say that looking at the elements of a claim we're going to determine that those are known in routine elements suggest that it's a reference to something that is in fact known and routine what do you think that court looked at that they said was it so it was not in routine that's not known that routine for example the court actually laid out a number of omens for the claim the thing that the court in our view specifically didn't mention was the fact that all of these claims require software tools and the software tools are provided by a server from and along remotely accessible tools like web based tools and where in any of those words you just  anything that's not known in routine there are no examples that we can find and that certainly wasn't pointed out in the record where there is someone who's provided a platform for artists where they now have a wrong software is known and routine corrector on a web presence online access all of that is known in routine right critics taking each individual word or component and saying is that but that's what we do i mean we have dozens of cases where we look at least one case as in we say all these conventional elements of computers and the internet and the like are known in routine and so then we look at what your patent as directed  and i would respond or honor that in looking at what the claims are directed to there are novel software tools yes but but just a minute ago you were complaining that the district court relied on factual conclusions about known and routine items that you thought were known in routine and everything you recited you just concede it was known authority so what factual conclusion did the district court draw that was that known in routine i wouldn't concede that court called those much more specific elements known in routine yes which once the court went through almost every element of the claim with the exception of a few and said these are known and routine elements and so walk through  and we're not aware of any real world when i look in a prior art no we were this is one on we're looking at at what the claims are directed to and if you the claims are directed to a server or software tools it just seems to me that that's almost at the very height of general what they're all of zation i would disagree around because i think if you look at the claim as a whole we're not just talking about having night when you go through the claim as a whole representative i don't see any type of a limitation on these very broad in general state statements that almost anybody knows you understand and expect a computer server software tools so those are extremely generalized statements and there's there's in response your honor i would say that the there are many patents that have sort of a of a database and have different structures that would or you explode out the software tool and now you have an architecture of structure and then the argument becomes whether those are  known and routine but that doesn't exist here all you have is a term software tool and to me i'm not sure that raises a question whether it's known or routine i think i mean conventional and and well no we think it does your honor because it it provides a complete invention meaning looking at it while the claims as a whole i think one of the concerns we've seen with this court another is that if you take apart just the individual elements and you just identify one piece of it and say well this you know having a computer or having the internet is known and routine that is one way to look at it but i don't think it's the proper way to an alibi analyze the claim as a whole because the sorry i don't know i just want to point out just to make sure that we don't not whether each individual element is not whether it's novel or conventional so but what do you have in your claim that shows that what you have here is technological improvement on a computer or on something else as opposed to just an abstract idea of having paid trained spawn an artist and saying i'm going to put it on a computer sure and so the claims as written talk about first the server so what the invention in more general terms is talking about how it's created a platform what sometimes referred with a fan funding pop form which didn't exist before meaning it was not something that was in real world technology it only exist the internet became available and people could use it and this platform now allows people for the first time and artists now have a centralized place where they can manage their own projects so their software tools to manage the product and a centralized database that is able to take what the artist is providing and then help manage all of the facets that usually artists had to do on their own meaning trying to figure out who would be interested in improvement i think it's the combination of the fact that you have now a centralized way of being able to provide this platform so you've got a server that is provides these remotely accessible tools and as a result issue in the want to one and or i think that the the oral argument today underscores what we took from the brief which was that there was no underlying factual dispute at all so we're you would apply the heightened standard you certainly could have a heightened standard if you were looking at the underlying facts but there are no such facts in this case we we draw our our point from justice briar's concurrence that a legal issue isn't clear and convincing it's you're either right or you're wrong and it's simply a question of law so there's no there has not been any improper shifty of a of the bird the court indeed the district court acknowledged the standard low in reaching the ruling but noted there were no disputed facts so i think that disposes of that issue in its entirety was on with regard to the substance of this this these pathless patent was these claims are directed towards an abstract concept of which was basically the concept of raising funds for an artistic project from patrons in exchange for a friend sent incentives there's no dispute that's been around for a really long time whether it's p b s which i can remember from my childhood or go back to you know it on the internet or do it on a computer or do it on and that will give you something that is in fact patentable leak and there's no dispute that the underlying concept is of of the into which is the problems that were identified column two line thirty four says and we address this quote with the current business model of different our artists in the street in other words we have a business problem along which of longstanding nature and we address it using conventional and well known manners in the in the in the midst so you can call it what you will on that doesn't change that that's an abstract concept that we don't think that the claims at any inventive concept and as as a number of the questions this morning alluded to there look the directions are all really functional you know you know news you do it on a computer do it use a server and so forth and it's not only you know this is not the invention of a new server or this is not something that is this is how we're going to improve the computer functionality on a computer to it or you know which the mccourt didn't respond in that  or we're going to solve a particular problem the coming out of of an issue that arises on the internet that d d r case for example in which you are looking at well how do we solve the problem of the rise of simply because you're on the can on me on the internet we don't have any of that here what we have is we're going to raise money for an artistic project and we're going to do it on the internet and that's really all the claims really talk about and there's no  without any further substance to those claims that's not that simply is just not applicable under a lot of cases in that you know certainly so you know look at the case of the scores were cited recently  mount the challenge of a one hundred one case in order to invalidate the patent and we think that couldn't be the proper analysis here examples also provided by pelley here none of those examples are examples that would in any way involve the inventions that are in the in this case and none of those examples were examples they even used to try to say that our patent would be invalid below so the p b s analogy all of those those are not the real world corollaries there are no fan funding platform meaning that that's not the right question i mean of course there's no real war up close to the internet before the internet but we've got in dozens of cases that taking something that was previously done in the real world either on pen age on the enter that you claim we claim a fan funding platform which is very different from the examples that are talked about as being real world examples meaning having someone be able to go out and say i want to raise money for a project is very different from a platform that allows artists to come together be able to present their information to a group of fans fans can come to one location send you into an art show i mean that's exactly what happens at our shows a group of artists gets together shows a budget there are or and people get the money for it and sometimes they take order for new work i mean this is all this very very ordinary but we respectfully disagree but i understand your position i would also point claims in the case and there are certainly claims that were not a servant in this case thank you for your attention thank you very much