e extremely simple and inspector receives the file and links a security profile to it that identifies anything suspicious so the claim does not require a computer or software to make the identification or create a profile it doesn't offer any particular way of figuring out what double is that correct that's correct your honor there's absolutely nothing new about the security profile the only claim to point of novelty is the idea that we attach it before the file is made available on the web server an end user well your honor i can imagine that a specific system for generating or identifying or attaching that downloadable might be patentable subject matter but that's not what they claim what the claim covers just the concept of identifying suspicious files before you make them available on the web server that's an abstract idea more than a dozen of this court's presidential opinions about what you can have any kind of a process a process of forming rails for a you're right i think the answer is if you claim to the idea of heating metal this court should not allow a patent what you could claim which you would be permitted to claim is a specific implementation that is novel and inventive but there is no such claim here the claim is to the idea why it's a novel and not you generate a security profile and attach it to something before it's down loaded we are we don't believe that there's any there's any sort of evidence to suggest that virus scanning didn't happen at the web server level the argument wasn't let me ask you this is virus scanning and abstract idea i the concept itself i think might be an abstract idea absolutely a particular implementation a particular way of reduction is think if it could because you can distill almost anything down to some abstract concept i agree with that your honor but i think this case is not a particularly worrisome  for that question because this case is on all fours with intellectual ventures versus symantec with intellectual ventures vs capital one which i'm going to call capital two because they're actually two different intellectual mentors versus capital one cases in this  in this case those cases involve precisely the same idea and indeed close to the same invention one not quite i mean i guess or there are two things going on here which are supposedly contribute to the novel that they're attaching the results of the virus to the downloadable that's the idea or at least some sort of a flag a profile that says warning virus or identifies it doesn't have to be a virus it could be some other file i think that is the idea  although i guess if one were to do a virus scan at this web server and say there's a virus it would be quite surprising to do anything other than alert people to the fact that there was a virus so if that's the if even a concept is just having done the scan at the server level telling people about the results i don't think that can satisfy satisfy step two i think it's worth noting when we come to the question of what is an inventive concept and i don't think we're accept you in this case i mean this does not strike me as one of those typical software cases where you have some kind of you know is this method or something done in the ordinary course of human kind that is done faster for better or made possible by putting it on a computer this is a problem in demi to computer security and so it's a new way of doing it it may not be particularly you know in on obvious because it's combining a bunch of different steps but  hundred one here it is definitely an invention that relates to computers but that's not what this court has said the test is it's not it's not this court is not to blame but i'm not saying it that broadly either i think i get you i'm with you most most software patents that say do this on a computer are ineligible under our laws but this is not do this on a computer this is computers have specific problems with viruses suspect files all these kind of things here is a new way of solving security concerns specifically on a computer this problem doesn't arise outside of the computer context why isn't this like in fish and d d r where it's improving computer functionality because there is no actual technological improvement to the computer functionality claims so that is true your honor but the same i don't why don't think you're right there is a technological improvement and this is a new way of detecting viruses we can argue about whether it's better or not but it's certainly a different way of detecting computer viruses rather than having the virus scan done on your own computer it's done before it gets to your computer well i think you're out of that it there's nothing in the claims that identifies any new way of doing it  right your honor and there is nothing claimed in claim one that suggests that there's a new method of virus scanning going on here and that's why i think this case is like intellectual ventures versus symantec where exactly the same issue i'll be at an email versus web pages was issue identify the viruses in the potentially problem problematic emails first and flag them before they come to the computer that's their problem is that the difference here is that the results of the virus to own the idea of scanning files before downloading them they might be able to claim a particular notice of what i'm talking about and i'm saying it was well known to scan for viruses before it got to the user's computer that that seems to be the not well know is that actually the results of the virus to download of i would be surprised your honor if if if having done the scan in advance and found a virus someone was not actually telling anyone about that but i think that even if that were true were true that is an idea why didn't you find some prior art that would anticipate or lingering on the well your honor it is it is the case that we argued prior art below and we did not it's so there's some programming that would run on a computer automatically i don't think your honor that the claims require any such thing all one needs to know this does require attaching a profile to the downloadable that's correct your hon and it's attached to the downloadable before it's presented to the web user around that's right your honor and so if they if they put a label on it that says warning possible virus if they put a label on it that says be careful opening files from the engine has a problem either of patentable subject matter or of non infringement all of the arguments that they make for trying to suggest that this is patentable subject matter they run away from when it comes to non infringement because our system simply doesn't work in the way that you just patent the idea here is to prevent a cached file from automatically being white listed different policies might allow some kinds of files but not others to come into their system so the idea of a patent is once your content is cached we're going to have an index of whether you allow it whether you allow it whether you allow it and so forth policies not on the index won't just automatically grab the file they'll have to go back and run another scan and the claim cordingley requires the index to store a set of decisions that result from determining whether a given digital content is allowable relative to a given policy proxy s g doesn't work that way proxy s g stores only individual condition evaluations does this file past this particular check does it have this characteristic it does let me see if i can understand what the difference is here as i understand what what your client system dives is that it stores the result of the application of particular rules but it doesn't store the overall result of whether the content is acceptable that's correct so the question is whether that satisfies the plain language is saving the results by storing the results of the application of a single rule or whether it has to store the results of whether the content is excessive all the users of the ultimate judgment versus individual questions individual checks and the district court at claim construction made clear that there is no dispute that our system doesn't store the final results the district court said i would grant summary judgment to blue coat but i want to give fintan the possibility of showing at trial that there are some policies out there where there is one and only one intermediate question and if there's only one what an intermediate question the intermediate question and the final result would be the same thing but finch and didn't show that a trial they didn't even make any effort to show that a trial of their theory is that storing the results of the application of the single rule is sufficient even though it's not storing the results of whether the contents accept well that would be the theory under which they might have been able to show infringement that's why the district court let them get to trial on it that's right i think their theories a little bit different from this records my understanding is that what they say is that blue coat stores the result of the application of a particular rule to the content and they say that it's not necessary on the claim to store the results of the overall assessment correct that's correct your honor but that's not what the claim requires well except that it's not there was a claim construction they lost that claim construction the district court said the claim does in fact require a final our ability to terminations they did not appeal that decision i don't think they can come here and now argue we want to new claim construction they got to go to trial on this patent solely in order to try to prove that there are some circumstances where the intermediate and the final are the same thing because there's one and only one test and they didn't prove well how was the jury instructed on this there was a point instruction which went beyond the language of the claim is that right the juries the claim construction is was involved the term policy index which said that the term was a data structure indicating allow ability of cash to content relative to about damages and let me here highlight to speak clear i wanted to hear the forty four forty four damages certainly are so finch it offered no expert testimony at all in the eight forty four instead it told the jury to award twenty four million based on all worldwide users step and up portion between the infringing and the non infringing portions of the artier there is no effort to apportion between the infringing on the non infringing portions of the r t r d r t r has eighty six different functions in that cookie to file maybe they accuse one of them maybe they accuse four of them they certainly don't accuse all of the six and they aren't here also does lots of other things besides parsing suspicious categories as finn's own expert agreed at eight thirty three ninety nine eighty five when there function it might be your honor we don't know we don't know because they presented no evidence on that question but even if it were the most important it can't be all of it they do not make either in the district court or on appeal and entire market value rule argument they don't argue that this is the only reason people want this and so we think at a minimum remained is required for a new trial on the damages question because there's a medic said where the smallest saleable unit is in fact a multi component product containing several non infringing features the patent he must do more to estimate what portion of the value of that product is attributable to the patentable technology here they did nothing and i think that requires a new trial and damages if i may make one final point on damages i am over time so  the other thing that's quite remarkable is that closing arguments on the other three patents that are at issue council expressly asked the jury to double their own experts number and the jury did exactly that so for the application of a traditional virus right that would that would be part of the suit could be part of the security profile it could be but what engine invented it was but let's take this reference in the specification to traditional virus traditional virus scanning wasn't known so don't misunderstand i'm not saying that this is limited to simply doing a traditional virus  actually i'm just saying that the security profile could be the result of a traditional virus hypothetically it could ok all right so then it was well known wasn't to do it virus before it got to the user's computer there was no prior art that was submitted at trial that we saw that did that because traditional virus scan was not of known viruses and known viruses had to be attached to a host file and the host file would then go down to the user's computer and they would scan at the user computer ok so you don't agree that it was well known to us for no i think the location of the then that would leave the idea of attaching the results of that virus scan to that now loadable and could you address whether that's an abstract idea or not no it's not that this  s a unconventional solution to a new technical problem and that's what this patent comes up to comes down to the idea of one scanning and then sending it on that would take away outside the bounds of abstract idea this is a the security of our generation is something that was never done the new problems that resulted from jobs and the solutions that this invention talks about makes it very very different so from the very first step you know that it's rooted in a computer technology with the definition of downloadable very first claim element the second claim element generating by the inspector at its intermediary a security profile is something that was never done here that takes the outside of the abstract around as well because th it could include that type of scanning but also as scans of credit also does something else isn't exactly relevant to the question of whether the broader concept is abstract if you never could have a narrower claim which but what we have is a situation in which you've chosen to write a claim which is broad enough to include traditional virus scanning now to be sure you say you do two things differently about that one that you do it earlier before it gets to the user computer and second that the results of the scanner attached to the download of the question is whether those two features take it out of the realm of the abstract and as for the first of and that would just filter emails as it came through just based on yeah but the look it was a news said to be what was novel about was the location of the ski run but here it is now that the location is also generating the they could do they could capture traditional viruses by looking at for suspicious operations like evolve functions doc writes various other functions in computer science it could do that so it could catch additional known viruses if you had a security profile the only captured no viruses right but the security profile itself is just a profile of the downloadable so if your if your street profile it's all in the security profile would be computer and that was attached the results of that scan were attached to the downloadable this would be in french right i think it i don't know if that would be the case to be can i think because what we're talking here is generating by the inspector a security profile of a deaf i suspicioned code if a known virus comes into the system and it generates a we had a very substantial record blown apart and i have no regrets here and i'm saying pro one hundred one purposes you have to be able to defend the application of this which would be an infringement and we have to look at the scope of the claim in order to determine the one question so what we think of for the want to one what we think there are three x three three elements takes outside the want to one analysis one is the fact receiving by the inspector downloadable which was in the computer around obviously where they're generated by the inspector this delegate security profile which was a new way of solving and told you how to solve this new problem and then linking is an important element that's a very important element to outside the abstract as well the profile of an absolute minimum absolutely and so in each one of those three i think take it outside of the abstract if you can to step two which you should not get to be if you did you also say this is a bit of concept there's a reason that there was actually no prior art talking about this this was a brand new way of doing something this was a very claim struction here is my characterization of the difference between the parties correct it yes and so and what the jury heard was factual evidence at a very substantial evidence and the judge who actually gave the language   struck i think we have substantial evidence to show as the district court judge said and she says you live these past three years there is substantial evidence to show that they infringed based on the record below of storing in the ca that it's performing a function other than the pattern of function at the same time that a performs the path that function it's inclusive with other functions yes so there's no way i should there be an actual middle was that every time a file comes into the d r t r there's a d r to your response which is infringing step that's infringing aspect every single time that is implicated you get your chair response a hundred percent of time it never doesn't stand he agreed that eight dollars was the right royalty no they didn't they didn't cross examine and then said well there was no good at the church and so you have the burden of proof questions wasn't enough evidence enough across that they don't lose their right to challenge  asians say about whether that's a reasonable rather the question is not whether that's a starting point but the question is not whether your client seeks at the beginning of a negotiation to get an eight dollar rate the question and that's what they're going to put in this is the evidence we use as a negotiation point so it is a starting point and that was the position we took at trial that it was based on a federal circuit of affirmation of the rate applied to the facts of the case at the time the hypothetical negotiation so that's evidence the jury heard today dollars and there was sufficient backup for that it wasn't just point out that it was based on a sixty percent so your argument is that even though that was just posed as a starting point there was some reasonable basis for yes the and that was the only evidence the jury received on that on the rate there was no counter evidence at all to say that was unreasonable now it was based on the law it was a factual basis for coming out of that number and there was nothing to counter so you know that's what we do a jury trial they decide the facts and the facts in this case were that was a starting point that's what we would agree to four percent that alone is sufficient grounds for a virtual in the damages on the eight percent number what that there was no expert witness who testified in the eight for forty dollars the eight dollars what the right dollar number is what the judge what he told the jury in closing argument what the witness said was eight to sixteen percent not eight dollars is the is what we would like to get for our entire patent portfolio not for this patent but about for all the patents including the others at issue here if this court doesn't believe that the invention is invalid under section one hundred one if it's not invalid under section one hundred one it has to be because of these features that council identified those features aren't present in the claimed they were imported from the specification but if we are going to read them as requirements to make it habitable subject matter our system doesn't work that way we do not in fact identify and attach profiles before you make file avail of download we simply don't we intercept them after it's made available on the web server and an intermediary stage and we assess them then the district court specifically found that our network gateway could not be a web server for purposes of the claims and