one principle common issue same parties two of them healing from holdings of eligibility and two appealing from holdings of  seems is that the patent office concluded that your arguments did not differ from those that were proffered in the sikh g case and that both the three o four and the one three t had been expressly dealt with in the federal circuit when this exact issue chip in to the extent that you haven't raised any factual issues that that was a decision on a legal point not a factual one that was record based then or necessarily now at least according to what the office wrote here in this opinion in particular and the case for so can you address why it was an error for the court to or for the board to take into account and say that we don't see a persuasive reason to deviate from that logic in that they clearly didn't understand them to be bound by it but they nonetheless thought them said so he focused on that yes i brushed loose well i didn't say evidence it said there's not a persuasive rees legal basically they treated it as a question of law yes and they didn't see any basis to deviate from the prior determination of law understand your argument about step one short i think that this case illustrates well why there ought to be and factual inquiries are stuck on the way the secu gee i don't think this case interest indicates there to be factual queries that are step one at least an owner standing argument to be persuasive i think the problem you have is you just think that the security decision got it wrong and you think the board should not have followed this even though they were found  she had had a set of facts in front of it and if you read the decision it was it only considered a pattern itself and the problem with that is that when we look at whether something was long known or long standing economic practice the patent may not answer that question known that step two there's nothing to do with step one step one is focusing on whether it's directed to an abstract idea where the abstract idea is new will not save you from an eligibility many formulas are new they're still abstract because they're formulas true but if we look to the the supreme court looked outside the patent cited treatises in its decision for the notion that what the claims in this case were directed to were fundamental economic practices and in this case i think you'll straits the instance where if you look just at the patent you wouldn't understand what the fundamental economic practices were received from the specialist book and the trading interfaces that followed it and if we don't look outside the patent as about say the it invites mr frum patent drafters they will say self serving that the government would go next and then i would respond to well that's what we were given by the clerk's office when when you all checked in that that the government would proceed  well mr cannon is rip will be replying to the government's position correct correct so i think we ought to hear from the government next and you have five minutes taking because it rests on a determination that the patent holder never had a valid property interest in the first instance so when the supreme court said no all states said the decision should and and therefore there was nothing to be for there was no taking and so we think that that that that resolves the taking issue and you know in addition it could also be viewed through the lens of compensation and at the point where both this court recognize you know forfeiture is obviously discretionary our point is just that the general rule is that parties must raise issues before the agency if they want to preserve them for appeal they didn't do that here there is no exceptional reason to deviate from that i understand that you're telling me that in a particular case the board did look at constitutional issues but i'm a little perplexed as i said here because it's been my understanding that the p t o as per the executive branch isn't permitted to rule on constitutional challenges and i just the the board could have declined to execute i'm sorry maybe you misunderstood my question my question was are you it's been my understanding that the board p t o is not permitted to rule on constitutional issues i understand you've given us a particular case where they appear to have done so but it's not it's my understanding that that's not the correct state of the law the fact that they did it in the given case and maybe that wasn't challenge to ruled upon the the propriety of the p rendering actual binding determination on a constitutional issue i thought that that wasn't appropriate under the law and i am i wrong about that i mean i am not positive and i don't have the case in front of me am i wrong in my ports done in the past here we've got an argument that they're not permitted to do it and i want to know from you are they permitted under separation of powers is the executive branch allowed to rule on the constitutionality of the statute i don't see of my earlier answers but a way in which the court could do that would be to decline to institute the kind of reasoning a constitutionally that's a discretionary decision by the director which could be based on his view of what our determination of constitutionality would ultimately be an constitutional arguments because train technologies did not present them to the  specific functionality to a trading system correction to a specific implementation of a solution to a problem in the software arch the order to guard those finds will the board doesn't have to follow those findings they're not finding or in the board disagree the specification is very clear the problem isn't with the trader how long it takes the trader to make an order the problem is with for example the figure two styles screen the grid the market prices are flipping in the grid select at a time when what's being offered has changed it's not a problem that's not the problem here are the problem is at the time the user goes to click because of the way the figure two style screen is constructed because the prices are are with respect to figure two with the prior art you can have the fastest reaction time in the world the problem is when you go to put the cursor over that cell the market can change and you have no control over that and i don't the and when you go to collect you think you're getting a price but because the market flipped out from underneath you you've got the wrong approach that's not a user problem here it is because you can't get the run place price if it hasn't flicked on the screen it doesn't flip ether and you're viewing the right price on the screen you click on the right price but you get the wrong price it's not the way it works it flips on the screen and if you click the button because you aren't able to stop yourself from clicking even though the number on the screen has change and you're now clicking on something you don't want it frequency if you've got a bluetooth mouse where is this this delay built in between your clicking in the changing such that it's not user error it's the that's the problem with yeah to go back to the figure two style screens the prices are in this grid and the price as the market changes the prices change unpredictable to really long mouse court that's what it is really long malcourt of the signal to slowly creeps along that mouse cord now it's not that you're other it's you don't have the trader doesn't have control of what's going on in the market when the inside market changes when the price changes these prices on the grid are constantly changing the user has no control over that and to answer your question or drain you know what happens is when you put your cursor over a particular cell ok and you go to get that price that price because not because of the trader but because of what's going on in the market that price will flop right before you're able to collect and you get the unintended price you thought you were getting fifteen and you ended up getting twenty that's been filed by this court on two different occasions once in a speech case and in the seat eugene case that was the problem a problem this invention was trying to solve problems with accuracy problems with speed and usability and the prior art there was no visualization of the market mentioned provided that improvement that was also filing the speed case and in the  book i have a different question here and that's that the the regulation forty two point three zero one b which is defining technological inventions says that the end ha you don't look to see whether the inventions are as you look to see whether the ported feature solves a technical problem with that type of solution so that is our position that that under first we can just ignore that particular part of the interfaces and their solutions for technological in nature data engine case the recent data engine case that we cited in our forming in k perfect example this court found there were problems with the graphical user interface there were problems with these spreadsheets and the invention in that case salt problems with that interface and this court said that the problem with spreadsheets or a technological problem in computers and that the claim solution was a specific technological solution that's data handling core wireless another recent case that was cited said the exact same thing claims directed to a specific improvement to it was an improvement in the functioning of the computer these are do we cases these are cases in your honor i do agree with that and i'd be recently in the chart trading case i'd be just two months ago described the three all four patent as and i'm quoting now quote a very specific problem  technological improvement versus saying what the end result should be i'd be acknowledging is this is a technological improvement they acknowledge it's a technological problem and a technological solution to that problem and i have the the board erred because it missed the problem in the prior art the problems we have with how the prior art software was structured function there were problems with speed accuracy and usability with these prior art screens and the board just missed the board missed that the board said oh it's a business problem and that was rot that was the root of the error with why the board file there wasn't a technological invention the fact that the claims have some downstream benefit of course all that all inventions do and i think d d r is instructive on that point that was a that was a technological problem and solution retaining people on the website and it was a particular challenge to the internet it addressed a business problem but it is nonetheless a technological problem the board also erred by missing the technical solution altogether ignored that t t created a new improved graphical user interface altogether a new computer component instead of looking at the improved graphical user interface the board said well there's no technical solution because you can use this interface to any off the shelf computer but that's that's rot that's the root of the error again go back to core wireless go back to data engine those inventions also could be used on different types of computers but that doesn't mean that they're not technological inventions technological opinions including my birth time or opinion that the newness of the abstract idea cannot be a basis for surviving eligibility challenge so i could not sure maybe you think the rise in a state of conflict over that i agree that the fact that an idea is new does not transform it from an abstract idea into a nice tract statutorily eligible idea but the fact that something is a fundamental economic practice may be reflected in part by the fact that it has been a part of economic activity for a long time such as double letter accounting or intermediate settlement  i would like to turn briefly to the c p m jurisdictional issue so that there's no challenge here to the board's rule making or that the board didn't look to the correct rule when it made the decision the board in the three zero four case and decided that the problem addressed by the three zero four patent as well as its solution was was not technological on the second point the board citing the patent itself made a number of findings that the inventions here do not have a technological solution they use conventional hardware and software they have simple algorithms and there is no reason to set aside the their f l these here have not really contended with the standard of review which is can't stand and the reason why it's because the board missed the problem in the prior art it missed the problem that there was a problem with the tech with the technology there was a problem with these prior our screens no it's just a financial problem and that is wrong under any standard of review with respect to the technological solution the board said lot of see any solution here because i see your talks about using mice i see your patent talks about taking a computer using conventional computers that missed the boat that completely missed the boat why because the technological solution is the improved  interface which at this board refused to acknowledge and they pointed to other things in the spec that are relevant the fact that you can use agree on a conventional computer the fact that you can use mice the fact that you know can be used the same thing can be said in data engine and core wireless when this court file those were specific improvements to graphical user interfaces and specific improvements to computer functioning if that's not a technological invention i don't know what is if i was to look for the central figure that's a technological invention in the patent would i look towards the technological problem so you would look then to the spec to see what the spanish that's what i mean so you just technological feature that's what i should too if the technological feature here instead of price index it's the combination static single action plus relative movement of the indicators expect it's the combination of the elements that provide the solution it's the combination of elements that provide proved accuracy visualisation which