some of the language in your honor it does not either fall within reason is not rooted in computer technology nor is a forward in d d r let me answer that in three steps if i met first the business problem addressed here data piracy is not a technological problem it existed before the internet and it exists outside the internet today second the solution offered here or the proposal offered in these patents is not limited to the internet in fact the patents are so in so many words that it's a  claims are either invalid or not infringed under the means plus function analysis that needs to be ready for flight after williamson we think there is claim to structural problems and of course if in that retrial if we got all the way down that road and jump through all those other hoops there was a serious rest of them will be here soon one option would be for the court to coordinate them which we've proposed before and we consider that makes sense for judicial economy reasons or the court of course can reach them first in this case we submit that they should be briefing deadline arrives smart flash files another motion to slow the train down to catch up with the caboose is there i drink made in that case it's neither here or there for this case but is there a question about whether or not it was appropriate c your honor the institution decision found of course that these are business method patents that there are directed to financial services in that they do not provide a technological solution i don't know whether smart flesh intends to challenge that under the court's recent and where plan  limitations in rumor it's the limitations on the claim not the specification that that have to define the event of concept the district court magistrate judge actually identified to some of the claims then at issue in the case require memory limitations content memory and parameter memory either physically or logically separated in the device the court identified that as one so called inventive concept and the other was the application of usuals that is a decision point as to whether or not access could be provided the distinct memory claims dropped out of the case more flesh abandoned them before trial so one of the two things the district relied on isn't even here anymore and then a trial mr racks the inventor testified as he had to that he did not prior art a particular combination could still be solved and then after a concept that is absolutely true theoretically and absolutely inapplicable to these patents because here we have no combination that is not itself routine in other words so what flesh continues to rely on storage transmission reading and writing these are the things that computers do and if i can analogize the case to its closest counterpart it's really ultra martial was the use of advertising as currency to get access to content this case is the use of currency as currency to get access to content i mean it's closer to the business method than ultram ritual and th alter mirthful said it is a very important passage we believe that while the claim limitations there added a degree of particularity what my friends it's more flesh call the specificness that the particularities is not the test for invent a concept rather it is whether there's an addition as to the specific combinations your offer smart flesh identifies only three in its preferred this is the pages twenty eight thirty of the read brief first they say storing payment on the data carr paths how to answer your question does a true innovator a true inventor claim computer implemented methods by following the guidance laid down by the supreme court by this court in alice and by the post alice decisions by age and by claiming things like clear your honor it is clearer than it was before and it is becoming clearer through the decisional process and certainly the court has marked out something or something more in the in the cut in the in the context of computer implemented method your honor it is clear from that the applicant wished to reach without any invention as to how to get there could a computer implemented method of delivering secure content be patented of course new encrypted methods for example are always offered as good examples of implementation of content delivery methods but this court has a series of cases an unbroken line of cases after alice in which the manipulation transmission delivery and storage of information content on devices conventional computers and mobile devices are not eligible and those are that's because they were prosecuted under the old state street just claim the result is enough analysis  metals there is certainly a mental stuff component here as related to what would a human being do in the non internet world that there is no difference in concept between the application here the description here and the clerk at the blockbuster if you walk in and pay for ninety nine to rent a d v d for a night or pay nine hundred ninety nine to buy it outright that is what this patent claims if you will do it on a computer and what alice told us what the supreme court told us analysis was that's not enough that is that what we're talking about when we run i think here we have a want to one problem and the court need not get to one twelfth there is a relation between the two doctrines and this case is an excellent illustration of it this kind of functional claiming where the patent deals with the applicants claim is only the result and not the process by which that result is obtained by virtue of skill in the art if it passes one on one and we submit of course it should not but if it does  raises a serious indefinite problem and let me explain that very quickly if the inventive concept claimed by smart fact flashin this is from the red brief page nineteen is quote the asserted claims are drawn to specific electronic devices programmed to carry out specific purchased download access and storage functions ok those functions your honor are not defined by structure anywhere in this patent they are they are the claims themselves are purely functional and then when one goes to the specification one finds not structured not algorithms not flow charts not diagrams not any disclosure as to how to program this mythical device but rather repeated references to means the content livery means the content storage means in other words we have functional claims with a functional specification and so we have in these patterns the problem identified by professor lemley in his article and us your question about software patents of pure functional claiming can there be a software patent disport has left that question largely open but certainly it has said in the line of cases involving risk to crack no and so forth that if there is to be a software pat must disclose to persons of skill in the heart the steps necessary to achieve the result not just the result itself these patents in contrast claimed only the result only the desired outcome of conditioning access to content based on payment that renders them ineligible under one hundred one full stop if the court accepted smart flash position it would render them indefinite under one twelve full stop they cannot survive either of the two analyses because they just judge proceeded ma'am please the court the argument that you have heard from apple ignores the language of the claims and what those limitations describe the patents that are at issue here eligible because they claim a specific solution to a technological problem associated with online distribution of digital content files this was a problem that major corporations i b m xerox sun those corporations were trying to solve this problem and patents were introduced at trial that apple attempted to use to invalidate these patents as either obvious or in the case of the seven twenty five this just is understood to and i think it very much goes to the step to analysis this court pointed out in internet patterns which is to within the distribution of functionality within the network and among devices in a system and it's done in an innovative way that has distinct advantages over alternatives and i'm going to point to three of those limitations that are critical referring to the seven twenty patent first the claims require a data carrier that stores both content data and payment data that's used for payment that's not something that apple was able to show in the prior are it's it was and it obviously provides convenience for the user second the the claims require a payment validation system that returns payment validation data it's the payment validation data that is then used to retrieve the data from  retrieve the protective content from a data supply and that's an architecture that is innovative it requires a particular distribution of functionality within the network that is different from the alternative  and i'll mention the third which is that when the content data is retrieved from the data supplier there's also usually access rules that are downloaded to that same data carrier that same place where the content data is store and there are distinct advantages to having those access rules stored next to content it means you can download one content once and then either modify the access  out what it is and it fills the requirement of an inventive concept because it was that particular arrangement of functionalities within the network so for example the alternative of ultra mercial was suggested right simply said made a payment in exchange for protected content or it said a user will trance met payment and in exchange receive contact then that would certainly be very much in the case he was i don't think so your honor but first of all there's no doubt that this is specifically these claims are about such about a technique that works within a can a computer network ok there is no the idea that this is about c d s is just not correct these claims specifically refer to the use of a data carrier that transmits to validation systems so i do want to correct that but with regard to ultra mercial what was critical and ultra mercial is that the court made clear that most of the majority of the steps that simply described broke down the process of exchanging payment point is that they are not simply employing the internet with a conventional business practice but there is a problem that arose with the distribution of digital content that was unconnected to a medium right you have digital content that you can sell over the internet and that is created tremendous problems of piracy unlike anything that had been seen and it created a tremendous opportunity if somebody could come up with an architecture and him method for in this case i think that the fact that there was a trial over whether these patents were obvious and apple lost and doesn't challenge the result of that except with regard to the jury instruction the functionalities at issue are distributed and this particular requirement i'm getting a little confused here i mean i don't think we've ever had a case of me because the circumstances of never risen but what you're suggesting is if the court decides not to do one lon first which it typically does and you ultimately have a conclusion of non obviousness jury that that somehow informs who determines whether or not you've got an inventive concept here i didn't i didn't mean to in it as i say i don't mean to suggest  that the court can say well the jury found that it was not obvious our job was done and that's not my point but my point is that what the what this court has emphasized is the difference between a patent that simply claims a result this is for example mean a lot of cases that talk about organizing between for receiving and all of those steps i mean this record here when he was describing why he concluded this was an event of concept says because it addresses specific ways of managing functionality of the computer in the computer system itself you have a situation in which there are digital files so we're not talking about information that have that existed in the pre internet world there was no  wasn't a prior situation where you had simply delivery of a digital digital file free of media and so that created issues that partisans were trying to solve so that it would be convenient and secure to make content available over the internet to purchasers and what this invention does is it says ok there's a series of issues related to that that the that are we can solve by putting a specific function by combining these functionalities on a single data carrier that is then portable and it has again it it is a quite specific solution if you think about the preemption policy concern that's behind this this is not a preemptive invention it is sang not use the internet to deliver content in exchange for payment what it is saying is there's a number of problems with simply sending payment to a website and then receiving content in return ok that is not working well so how do we solve that problem well one of the ways in which we solve the problem is to say people don't want to have to enter information into a website and it also means that people without  access to a credit card won't be able to use the data so we can solve that problem by putting payment data on the data carrier we have a problem in that there's a if you have met expose your payment information of the data carrier there's there's a loss of security there so instead what we do is we have a scheme owner and the scheme owner will be the one to validate the payment data ok the scheme owner doesn't want to have to deal with all of the content so what the scheme owner does is return payment validation data which is that used to go over tree the content from the data supplier again these are not inherent in the idea of delivering content in exchange for payment very much to the contrary has been very clear that the requirement for an algorithm for example is only applies in a circumstance where the inventor employs means plus function claiming and this court has never suggested and it has dealt with a dozens of patents involving computers and processors it has never suggested that a processor is nonstructural here we have a processor running code to do something that is a structural claim that is governed c section one twelfth paragraph wanted to ab it is not in means plus function format that doesn't mean there's any sort of a free pass but apple is standing in front of you today and saying well this isn't definite they didn't function claims and because their means plus function claims then you have to go look in the specification for structure that's not the way the statute works that the statute or i should say the statute only requires  limiting the claim to corresponding structure in the specification if it's claimed to mean plus function terms these claims are not in that form they are in the form of a process or running code to carry out certain functions that's very common and this court has never held that anything like this is a means plus function claimant to the contrary it has upheld the structural nature of circuits performing various functions it's upheld the structure structural nature of something like detent mechanism which because it describes a class of structures and as the district court pointed out there was no dispute on that there was testimony by apple's expert conceding that processors are a class of structures and it's interesting to look at the testimony that that expert gave because what the expert says is i've been told that in them if something's a means plus function claim then  what you do what he didn't say was as an expert i don't know what a processor is it doesn't that's there's no definite structure associated with and the district court quite rightly said there's a presumption if you don't use a nonce word that this is a structural that that it's ordinary structural claimant and that's what occurred here so i think that again the district court quite rightly said this is not a means plus function claim and they've waived any claim that if it's not means for instruction that there's any problem under a and b if it would be helpful i can return to the issue of subject matter eligibility of the claim but i do also if the court has questions about the other issues but so what i do want to want to close with it is to again to emphasize that this court has made it clear that there's a distinction between circumstances that just take a conventional business practice and put it onto the internet case like ultra mercial or cases that describe the results without describing the means to achieve them i think that internet patents cases versus active networks i that problem it's in it's internet specific how do you keep the information on the on the web page when you when you navigate away but it doesn't tell you anything other than you should achieve that it doesn't tell you how to do in this case falls into neither bucket that is to say it is talking about a specific technological problem associated with the distribution of a new form of content i e content files that can be distributed without any medium over the  internet or over a computer network and to it says very specifically here's how we're going to overcome the problems associated with the ways this has been done in the past and here's a way that we can make this convenient and secure  two different types of information same place and same devices an age old practice that's in the final written decision on the two twenty one patent at eighteen and it cited some examples of that second validating payment in advance the cyber sourced case which is  y alice but presaged alice quite well said confirming a credit card transaction in advance of doing something on the internet is something that urchins do every where that's not valid and third access rules ali five then those rules do not go for eligibility and here the rules of course are not created by this applicant they're not in this patent the rules are created by the data supplier that is the device employee applies any rules that come associated with the data and those rules can be a simple of course as if you haven't paid for me then you may not the soon or watch to me and that's exactly the same as this court considered in the commercial as to the digital data point digital data of course created the internet and just outside the internet and the patent itself in column eight at page one seventy one of the appendix explains that the data source may be a c b or a d v d or even come from a third party such as a cable t v company this is simply content and this court has had a series of cases theola both affinity labs cases ultra mercial and others like trick power all of which have dealt with the