illustrates the prior art that is at issue with regard to a particular path i mean and with regard to the o two patent i'd like to get into three issues the prior art storage evolve the codes claymates requirement for a first computer that generates sequence codes in vali pirates as for the storage of ali codes the prior art content is a factual question and here there is a factual dispute about whether the prior art stored bolli codes well i thought the deal was i mean i don't know  anybody's disputed that but firstly before i start i mean you've marked a lot of the company then shall and i'm not it's not clear going to end in a lot of the states back to nine hundred ninety or what is the basis because i feel constrained in terms of what i can ask you about here given a competent chianti designations and i just want to know what they're based on your honor i don't believe there's any thing that's confidential that the pirates designated the confidential material is from and why a sea org is from the chicago  they had some internal documents that you know for example the specifications of their systems which they continued to maintain as confidential even though the systems were being used commercially and i think a lot of confidentiality is is not very high but to address your and i don't believe his address anything that's confidential apps there's still a lot of moving parts with respect to the analysis here on obvious but one of them correct me if i'm just stating it a misunderstanding it is kind of conceded or at least argued that even assuming the volley codes appear in i guess it was in the top system they're not stories so your view was that the prior doesn't cover it because they weren't stored in time but you've got another reference of audit where they store follicles but they do stor why would it not a bit of the if i'm understanding what the district courts analysis was about why it would as i'm having a hard time finding out why it wouldn't have been obvious to combine the two what was wrong with it just a quick analysis i'm sorry your honor when i read that question when  message was a was an audit message and that the data audit message was stored and that that was incorrect as a factual mistake so and this factual mistake they could store the audit could store data records trade records and change records those were the trade record was a record of a trade that was made a change record was  record of changes to a trade that was set so odd that store those and in those stored records there were the record types the trial court decided that the record type field was not a bali code because it did not adequately define the present stage of the transaction or reflect the progression of communications for a transaction so so when we're looking at audit on the record type field trial court decided that it was not it did not adequately satisfy the court's definition of a poly code and then the third thing that the court relied upon but didn't she combine two references to get to that it references i think when you look at what the trial court ultimately did when when concluding that the subject matter of a seventy seven plane one that was obvious was to rely upon believe that there's a factual issue at least about whether the prior art contained a program computer that simultaneously displayed current status information what if automatic so you're saying what's missing is automatically and simultaneously displaying the program computer in real time the current status of information about them it seems this is a novel concept this is something novel equipment it's the power servers workstation control screen what this green shows is the total number of orders at a given workstation and that's not not what eight seventy seven claim one requires there what you have is the simultaneous display of current status information about three individual instructions there's an i b m order  which which lines in column seven thirty six through forty by the end of the paragraph that begins the clock thirty two serves as a source of real time for use in evaluating i'm having a maybe i'm not understanding that's passed by possible but i'm having a hard time understanding why this doesn't disclose the same automatic simultaneous and real time limitation that is in the seven seven pattern alright that the weather eight seventy s automatically displayed updated in real time to reflect the change in the orders now cicely works completely differently sicily there's field service technicians and there's no disclosure of how you'll service technicians may communicate their status as to how they're progressing on their assignments since we just doesn't disclose that and  that seems to me i mean maybe something just does it in another way other than with the way you do it but there's something in the language that indicate that well saying that sicily does do the same thing they just do it in a different way  and i think that the language regarding delegated instructions in the displaying step that's what requires the automatic well that's what requires a simultaneous display of information yes after the summary judgment motions were fully briefed the trial court asked the parties about the relevance of multiplayer gaming technology to the eight seventy seven pat nevertheless the trial court used to invalidate the pending claims three to five and ten to twelve in the over to patent and as a result of this lack of advance notice  judgment do we have to decide is it necessary for us to decide the claim constructions question well if it's the eight o two pattern that goes back i think it would be necessary on that because the for at least for claim eight the construction that piracy advances a little is a little bit message type these these message type bali codes were contained in the header of these messages so these order and execution data packets that were submitted only being used in the top system well before paris's invention disclosed clear that these messages are quote entered into the exchange systems database that's a quote from a c m e document that's at page a two four five nine seven in the antics so paris doesn't dispute that these messages are entered into the sea me that we don't know exactly how those messages are entered into this is that a base that's their argument and the district court said well the simplest way to enter the messages into the database is to take the messages or just put them in a database to store them as they're transmitted and if you if you merely do that then you have exactly what's reciting the o t patent claims because these order and execution data packets that were used in tops are exactly the same as the data packets claimed in the o two pat there's some conflict on the facts on that what the prior art no i don't believe there's any conflict in terms of what the pirates what for example the message type in the order data packet it's clear that there were different message types like order order a two one five three eight in the in the specification which have worked with time up the tail we're talking about the o two pattern so the the interface specification which defines what's going on on the on the in the top system specifically defines these different message types for orders and for executions and there's a clear hierarchical relationship there so the hierarchical relationship is clearly in the prior art the volley codes for orders  executions are clearly in the prior art and the only argument that we're getting from piracy is well it was an invention to store it to put it into a memory and that simply is not an invention to store what was or what was in the prior art and there is plenty of motivation in the prior art too to do this kind of storage this is one of the most monitored environments on earth and there was there's powerful motivation to keep very accurate records of everything that happens in an exchange for the background of the invention specifically says that you have to have a clear audit trail it was known that you that you have to have an order trip because sometimes there are disputes about what happened on the exchange floor and you need to be able to go back and recreate everything that happened further the c f t c report cited by pirates discusses the futures trading practices act of one thousand nine hundred two which was an act that actually mandated audit trails on these exchange floors because brokers were playing games they were when a big order would command a broker might sort of buy some of that but say security for his own account knowing that the price was going to get driven up so the the one thousand nine hundred two act was mandating that these exchanges have a very accurate records about everything that happened on the exchange floor that's a powerful motivation to to keep accurate records and to store these yes we're still talking about the o t patent zero two patent is is simply about storing an order a packet an execution packet now i'd like to address a couple of the other arguments for piracy is made on this issue of storage piracy said well common sense at the time would dictate that you don't store these messages because memory resources were very limited well that's just not not accurate and it's not a fact it's genuinely in the spew the piracies expert dr further said quote for a small additional price a card could be plugged into the fidgets a device to provide an electronic disk cable storing an additional thirty thousand packets this is the rebuttal expert port of dr holler at eight two two seven nine four which is fine twenty one of the appendix so the claim requires the storage of just two data packets one ordered that a packet and one execution that a packet and that's it and the parses expert is here a clearly that forty six thousand packets could be stored in expensive off the shelf equipment that was available in one thousand nine hundred three there's just no genuine dispute here that computer resources in one thousand nine hundred three were more than sufficient to store this order in execution that a packet and that combined with the strong motivation to store this information is sufficient for the for the summary judgment of obvious and the k s r decision it's expensive lee warns against allowing market forces to impact an obviousness decision so if market forces a cost kind of impediments would have just the person horner's on the art from doing something you don't get an invention later for doing it when the costs when the market forces have changed and he's to be a technical impediment to having done it in in one thousand nine hundred three there's no technical impediment here you just take these messages and put them into a memory piracies also argued that the claim requires storage in a particular way this is language that is in there in their brief repeatedly but the claim required the particular exactly the particular way that these messages were organized in the top system they were organized as data packets order and execution that a packets and that's not disputed statement of undisputed facts which is in the record it a one eight seven two five through seven eight nine these are the facts relating to the cvo we system and fact after fact is uncontroverted by pirates they don't contr t the facts relating to the c b o t system and how it operated in the c b i he system was an electronic system that provided displays to people on the floor of the exchange that are remarkably similar to the displays that the pirates is claiming in the eight seven seven patent the booth clerk at the c b o e was provided with a display that allowed the booth clerk to look up information about waters there's even a  more relevant display at the c b o t which is known as the par server display which mr hamilton was referring to before and that par server display is exactly what the claim says it it has information that indicates whether or not the instructions are pending that's all the current status information means the marketing decision from the court which has not been challenged is current status information is quote information indicating whether an instruction is pending or not showing you what's going on on the floor and what talks about instruction in the way that were activity is right with the instructions or orders that go out to the brokers so the instructions here are the most common example of an instruction is an order that goes out to the broker on the floor so what you have here is you have a you have a booth clark that is going to try to decide who's going to get the next order and the and in order to make that decision the booth clerk obviously needs to know well who's busy and who's not busy that's all this claim is about and that's what these instructions are so the system provides information automatically back to the to you know some display that can be used by a booth clerk that will that will educate the booth clerk about what's happening on the floor of the exchange what's the status of these instructions are they pending or are they not pending that's what current status information means whether the orders for example are pending or not pending and  the parser display does exactly that the only difference excuse me so in the c b l he system the booth clerk monitored the orders that were out on the floor and reported back but didn't make a decision about who's going to get the next order but in other exchanges like the n y s e the booth clerk did make that selection so th some exchange that with work made the selection and others it didn't and it prepares admits in the background that it was known that booth clerks could make this kind of a selection so when you modify the c b o t system such that the booth clerk makes the selection which is well known admitted in the eight seven seven patent you naturally are going to give the booth clerk the most relevant information of the booth clerk needs in order to to make that selection and the sicily patton teaches us exactly that figure ten in the sicily pat shows a screen that provides information to the person making the selection the person making the decision and that screen shows for a number of field service technicians how many pending orders those field service technicians ha three that you provide this kind of information to the person that's going to make the selection so this provides motivation to provide the most relevant display to the person at the cvo we was going to make the selection which would be the booth clerk someone of skill in the art would naturally look to what's important in these systems is not the data that's being displayed it's the it's the interconnection of these of these systems and the you know that the networked computers so someone of skill in the art in one thousand nine hundred three who is let's say setting up a computer network on the floor of an exchange where you're going to you know you need this data coming in and you need to have this real time data they naturally would look to other similar network computers that were well known at the time would you go to a game or do not know but that you know as an engineer you certainly would be aware of that and you would you would borrow from that closely analogous field where you have networked computers where you're trying to become an engineer focused on you know exchange technology to become an engineer or a computer scientist learning about network systems learning about how you can get data from multiple computers to display on one computer so i don't think that it would be appropriate to limit someone of ordinary skill in the art just the exchange environment you not claiming that there's anything special about the gaming area that for a wife some teaching or credibility that's germane here it's just that gaming is is one of perhaps dozens of different kinds of networking systems that provide some teachings that would be relevant ye exactly it was it was a it was a ubiquitous type of system at that time that brought in data from multiple sources and displayed it so if i'm if i'm an engineer being hired to set up such a system on an exchange floor i'm actually going to look at other well known network systems that brings data in from multiple locations and displays them but your colleague tells us that he didn't have notice to respond to that well unions that reference with regard to the seven seven and then  quit turns around and step below that graph well that that is what happened at the o two is a continuation of the eight seven seven patent on these patents have nearly identical specifications so i don't think that it should have been too shocking that when the when that when the district court said i'm interested in looking at the gaming art in relation to that seven seven patent that she might also apply it to the oh the we continue ation of the eight seven seven that it's some said was the parent so it relevant because you have these network computers etc so i don't think that they were blindsided by that being used in the o two which is again has the most the same specification and i'd also like to point out that it was not at all necessary  to uphold the the judgment of the district court we didn't rely on to share oh because we think is actually more relevant prior art the c m e system was doing this data validation with the with the with the claims are about that closely related and then to share oh so we don't think that betty should that it's at all necessary for this court to resolve the issue of whether to share was analogous art or not i think it clearly is analogous art but you don't really need to get to that we've got precedents i think cases trying that that talks about common sense and i think part of what trying that says is that just sort of throwing around the term common sense isn't sufficient that you need to sort of explain the applicability of common think she certainly did and the as i've explained the the minor changes you need to make to these prior it systems to get to the claim invention there's a specific motivation specific reasons in the prior art to make these changes  the in the eight seven seven to sicily patent teaching to provide the display to the person making the selection in the in the o two patent you have powerful motivation to store these messages that were admittedly in existence fact about whether tops would suggest the subject matter of those claims for example some of the claims of things claims three five ten and twelve require use of the highest hi question whether to shero is reasonably pertinent to the problem facing the inventors so for a pending claims three to five and ten to twelve they require use of a sequence code for packet validation purposes  shiro doesn't disclose any order packets doesn't disclose in the execution packets and doesn't disclose any sequence codes also with regard to shiro during prosecution of the piracies patents there was no reference cited or to the patent office that concern multi player game technology and why ses experts did not rely on any reference relating to multiplayer game technology in any of their well no i just want to point that out that if if it seems like if it were as irrelevant as mr murray says maybe someone would have come up with a multi player game patent or publication a little earlier in the game skill in the art would have recognized it was common to minimize the amount of data stored in these devices also as a last point when if you look at the claim lens with regard to hierarchical relationships that help you because it's common to minimize the amount of data stored in that discount the point of the site is make all right the top messages included information that was not needed for use later on such as information in the message chatter that's where the message type feel that we're talking about is a volley code appears so an ordinarily skilled artist who will not want to would not have wanted to store unnecessary data because that would have memory resources and slowed processing speed thank you