is if if the patents were assuming the patents are drives you a concurrent copy which and i just read that but if they are and that's an abstract idea then the claim survive under step two because they provide an inventive implementation detail of how to solve this claims provide a specific computer based solution to this computer based problem using implementation details unlike other cases the claims in this case claim twenty five provides detailed steps provides  when you look at the claims the claims are very general and even your specification refers to off the shelf well known computer technology the claims actually deliver the advantages that the same for the remote has been completed even though it technically has not just allows the primary network server to proceed with business as usual didn't debate that any of those things are well known of the prior art including th the ramp and you could use that it doesn't and i guess my problem searching as i might to find anything that it says that is on an unusual way to use i think the unusual way to use it is computers do not have data transfer units as a matter of course computers are not used spoofed packets as a matter of course so if you believe that a de to you and a spoof packet are conventional then the combination of these elements is inventive and unlike other cases the combination of these elements provides implementation detail it provides a specific sequence of steps to achieve the desired result we're not just saying back up the data and reclaiming the functional result in ordinary school artisan could use the elements of this claim to achieve the advantages of the invention and you show me where in the stack there is a description that  likewise with the spoof packet are you saying this is a you know the usual or undiluted or innovative arrangement of these components absolutely absolutely as in the countless other cases that have found that this unusual you can have an as far as the detail you yes i think we do argue that the combination of these elements is inventive and passes muster under step two combination of what elements elements that make up each new where they beat you with other context to another so just to clarify the background of it there were three prior art systems discussed in this patent one was electronic vault and in the mainframe context the other two were tape data backup and the third was also similarly end of day type of backups shadowing is what it was called and so what i want to focus on here is the first of those electronic vaulting by the patents own admission does all of the things that are claimed to be inventive here and that has a very up to date backup copy and a safe distance away what your response to his argument where he ended up which is that that the called out as something different or novel and that's the first time that i had heard of this i would point the court to their papers below in the summary judgment papers where they expressly acknowledge that every single one of those was convention that's docket look at what the patent itself does or in this case doesn't say in the innovation it nowhere says that this particular combination somehow provides advantages over aleck tronic vault to the contrary it says all we're doing with this patent is taking electronic vaulting and in the passwords porting it into a different technological context doing it on the network and i know from dozens of cases from alice on that merely popping it into another technological environment without scribe anything unique or inventive about implementing it in that environment isn't enough and i would point the court for example to another i v semantic case that came before this court where one of the patents was directed to  data virus scanning or computer virus scanning and the proportion innovation there was to take it from one context the local computer contacts and instead perform it on the network on the server and this found that abstract concept that abstract computer concept of virus scanning doesn't become inventive merely by saying do it out there on the network and the same i would submit is true here that combination is nowhere describes inventive i v certainly hasn't pointed to any expert testimony in any of its briefs before this court and i don't believe before the district court below the certainly everything they relied on in this court was all the intrinsic record of the specification and there is nothing in there and in fact it goes through in detail and describing how each of these components are surely conventional for example mirroring data every test every single operating system network operating system has this capability we're just going to use that and again coming back to the mainframe context this was all done long ago and if you look at their yellow brief page sixteen that's the one part where they try to distinguish that i could find clearly the electronic fault and all they say is different because it's not in the mainframe context it's in the network context no description of how that might provide benefits how these claims might provide benefits in the network context nothing of that sort so i submit this falls directly in line with this court's cases where other real time data processing has been found and eligible including a recent case the two a media case which actually had one step out of hopping a real time media stream to an intermediate server acknowledged to be conventional page twenty eight of the blue brief they say there vague knowledge that it was wholly conventional even to do it at certain times in the process and here on this question i don't believe that there is any ordering required by claim twenty five and that's most clearly shown because claim twenty six does have certain ordering of when this move must be sent and so on so by implication think twenty five has no such ordering and  we didn't let it find on the other side to get to the one three one but i do want to ask you a question about it because you know one of the the parts that i think is most compelling from the other side is the argument that that they should have been allowed to at least amend their infringement contentions to a certain doctrine of equipment's claim and you know amendments are supposed to be freely given barring a solution that that really would be futile so why is it that we shouldn't conclude that they should have been allowed to at least try to plead a deal and so to your honor's question they actually were committed to amend their infringement intentions over our objection but they were and they were stri they were ultimately stricken because they were deficient and here's what they did when they amend it they failed to comply with the most basic tenets of the o e law which is you must deal with all of the limitations even if you say there's an equivalent to you have to do it and they did the opposite here what they said is there are certain imitation set or simply not material and respectfully you're not allowed to simply dismiss those you need evidence on a claim by playing element by element basis of how this thing is equivalent and failed to do that and so i think that this report fully within its discretion to not allow them to amend again and they actually didn't request to amend again they stood on the notion that they don't have to address all of the elements it's enough for them to say allowed to be amended in contentions the assumption by everybody was it's not part of the case as long as they sufficiently included it which the district court correctly found that they didn't and just one of the thing i would want to point out in this issue i'm not sure the court even needs to reach that issue because in the stipulation as to the one three one patent they stipulated that under the district court's construction so assuming the court agrees with the one three one construction under the district court's construction there is no infringement literally or under the doctrine of the questions now my friend on the other side says well in the stipulation we also said we intended to appeal the striking of the contention that's true but what that means is they can appeal that in so far as the construction is disrupted the stipulation by its plain terms says if the construction stands literal and the o e infringement are both out at you can i ask you something certainly what exactly is a non final judgment i've never heard of such a thing when i've heard of partial final judgments under fifty four b or i've heard of you know sending up an eighty nine final conclusion for review under twelve ninety two but how is there such a thing as a non final judgment against your honor i'm not sure other than to say it's that's akin to an order it's akin to an opinion along the way if something is truly non final and i think it's a function if you look at it functionally either it's final or it's not if you label it as something or the other i'm not sure that that we should just construe it as an order accepting the stipulation for purposes of entering a judgment later i guess that's one way to his if there really was a judgment and didn't fall into any of those other categories then presumably the time to appeal should have started then even though you guys called it non final i think there so unless the court has additional questions i would just note as the court did after beginning that we do raise a conditional cross appeal issue the court doesn't need to address it if it otherwise affirms and we think it should but if it does choose to look at it we think the bergheim or case the recent decision from the score is is directly on point in saying what is an indefinite term actually mention the word substantial in that case although it also focused on the more minimal said  think there's really no contention here that there is any sort of how much as to substantial concurrence in this case in other words how much delay between two steps is too much but if the court's constructions rectum we're talking about a processing delay then that inherently ha limitations on it it's not like a circumstance where there is it's completely open and it does have some limitations inherently but i d's expert mr webster said that that processing delay could last a minute and our  volunteered that in his deposition and and so in that context where there really is no theoretical maximum we would submit that the pattern was intending to do something other than that and i think it's best looked at as a term of degree but even  as in core wireless as in visual memory as an engine and in fish these claims provide an improvement over the prior art they improve the way a computer works in this case the improve the way that computers back up data this is not simply taking an idea like backing up data and sync do it on a computer you cannot apply that framework here there are loss if you backed up data at two am you would lose the entire day's worth of data if there was an issue at five pm so this real time data mirroring claim isn't invent is an improvement in computer functionality if you if your position is that the elements are conventional and i would submit that the order combination of the audience is not conventional this is a specific way to perform these tasks is different in other cases contrast to other cases like electric power where it is just collect some data and present it like content extraction which is organized data and i think what's important is that in the step two analysis there are other ways to do it mean that step of the claim is not unduly preemptive as i said you could use a volatile storage if you want to be performance and speed at the expense of fault tolerance and reliability you could use you could forego with the spoof package if you wanted less aggressive timing i do want to touch if i can on the summary judgment issue is a classic fact question that the court took away from the jury and the question is whether or not the steps in the accused product whether the delay is occasioned by performance or execution of the program or for processing data or and that's necessary to the operation of the program or if the delay is arbitrary or based on some external trigger if the delay is waiting until two o'clock in the morning or waiting until the network traffic subsides that moves away from substantial if the delay is whether it's designed and if it's as you have this case simultaneous action but if that delay is associated with the performance of the program or if it's required for the program for example in this case it's remote right set up it's part of the process you can have a delay that is for recovery time as our expert opines that appendix nine twenty six there are such things as designed in delays that serve a function simply the fact that the accused product is designed a certain way does not preclude substantial concurrence so that question was taken away from the jury in this case what's your response with respect to the cross appeal to your expert statement that this that a processing delay could be anywhere from a minute to a year well the responses the our expert has always been faithful to the court's claim construction and to our argument that causation matters  he was posed questions during his deposition about what if the the processing required an hour if the program needed an hour to do its thing that hour if it's working if the delay is caused by processing it you're on just very briefly on the indefinite at this point i think it's illustrative that i've used position has continued to shift on what counts as a processing delay so is the expert you are exactly right your honor the expert said that the two steps to be substantially concurrent must be done quote as fast as it can and as soon as it can there must be quote no other things that are other things that aren't necessary and step intervening here was was undisputedly unnecessary by experts on admission it could have been designed differently without that intervening stuff and there are actually benefits to having that interview stop and so it wasn't just the notion of well there can't be a conscious delay in other words standing and waiting but this the intervening step has to occur in order for the system to process right it doesn't have to occur as designed yes but that just means it doesn't infringe it doesn't have to occur for the two concurrent steps or allegedly substantially concurrent steps to occur those are independent of this setting up the remote right so you have to substantially concurrent copy on the local server and those two happen at the same time as the expert said mr webster said you could have done it without that intervening step the two in steps in other words are the two end steps done as fast as they can be and here they alternately weren't and that shift constant shifting provide position