council my name is fred t c and i represent the patent owner broadband by t v the claims in this case like those of bascom provided technological solution to enable to show what you have control of how the electronic programming guide gets populated from the cable operator to the content provider or publisher yet leaving the p g function for the electronic programming guide function the operators video on demand platform one receiver i can understand if you're not claiming t i'm asking is where does it tell you how to do it as opposed to doing it it's a good idea it's also that how to do it right in the next step well first of all you have to do it along with the minute data be tells you how to do it piece the technological solution that's your hypothetical right in line with that and with that satisfy step two about ok under your hypothetical your honor where it's an abstract idea just automate it and there's nothing in the claim that tells you how to automate it then the answer is that would be invalid under else yes but that's not the situation here first of all lies irrespective of whether or not this is an abstract idea in my part of my arms be focusing on step two the claims provide the technological solution to a problem and the specification goes far beyond that if you go to column seventeen of the specification if it talks about what the solution with the problem is this automating is something that the invention involves all right it's not with the invention is directed to with the invention is directed to which is publisher of the content like basket we're now changing the control of this hierarchical dresses from the cable operator to the content provider the publisher selects categories and subcategories again a shift in control for categorizing the title of the video content from the e p g categorization seem presented by the digital television service provider for a listing of titles on one of the beauty channels with this method vast numbers of content publishers anywhere on the internet can upload their programs with a minimum of conversion and handling steps by the digital television service provider so just like basket which shifted the filtering of the internet system from the art it tells you how with specific details so efficient to establish that this is a collection of non conventional arrangements non conventional arrangement of elements in the prior art you upload it has to be over an online network that has to be over a web based content management service of the dependents and the petitioners argue that that's just any old server it looks like the structure that we asked for but given the district court's determination denying one or two in one of the three and the patent offices determination that uploading along with the mehta data what's allegedly new here what the arguable advance is i mean this particular arrangement of the content the day maybe that's the kind of has to be tethered to the claims and quite frankly on a in his plane construction fields judge kay i thought did an excellent job albeit talking about novelty in saying that the claim is directed to well he said novelty but really then and the invention doesn't bar that but it's not directed to that and under any fish that would be that that's not a sufficient that that would not need to step one test with as we have to determine what is directed to to determine whether or  against a bunch of collection of elements in a non conventional arrangement the bottom line is just it with a three c teach and when the invention is directed to is uploading the video along with the meditator converting the video and linking the title so that you're using the same method data to populate the piccies that's the detail recitation in the claims and under basket we have to show that that's a non conventional arrangement and the district court's denial in the one to two and one o some system hierarchy and linking it so that when the user remarkably sees a list of titles the user can select no that's not agreed that's this kind of false narrative the defense of on about this the defendant's expert and this is a page fifty five of the appendix as cited by judge k the defendant expert a pint and there's no dispute about that by two thousand and three all of the systems are automated the prior art was automated there was no human activity at this point where there's limited human activity but the but the intervening prior art systems of record in this case against thomas carney pegasus were all online automated computerized systems so th filing of this patent so it in their own brief they admit that there were physical videotapes and that there was information which the appellant admits was incremented a debt that was transported this patent merely puts that on the internet put that process on the internet and the only thing that i can glean that they're saying in the patent that is new in the prosecution history is to use the same me there was something innovative about it and something that was a problem of technical problem and a solution so for example your honour's statement if you just say automate it perhaps somebody tried to do that and discovered you couldn't just automate it using the traditional means of automating that was well known in the art and there were some tricks you had to use or perhaps someone said  r it was something that was done differently from the way you would normally do things on a computer and there's another case where we're talking about a different way of structuring a database and then the court there found that that that was inventive and can render that abstract idea eligible here we have none of that you just look through the claims and the steps of the claims are very similar that alice where you're just standard digital format like him he invented that's a standard digital format you're listing a title of the video content and a guy using hierarchy of glee arraigned categories well that's not an event that's not something that's new computer innovation that's just a methodology a function and you can use regular computers to do that you're you're providing a t v service subscriber access to it and you're enabling the retrieval of the video content selected cable company into that differently configured cable company system for producing its own electronic program guide so that i know what to choose put my not that i'm aware of your honor  there's something this inventive concept for how you do it and here there is no invent a concept for how you do it the really briefly in the papers the what we see is the shifting sands approach by the appellate on what you invent a concept so below the district court judge specifically said what did what do you claim under element two is invent a concept and what the but you don't even need to go there with the claim language just says that it is web based and then manages contents will also serve or manage content and hooking to surf the web is not something that's new or unique in any sense and then after we get beyond that and i'm going to finish real quick here in their op in their briefs on appeal they sort of abandon that they say it's along with an automated but they've admitted that submitting metadata along with the video was already done manually in the prior art and now council saying it's done it was done electronically as well in the prior art and then finally they refer to the specific equipment as if that will somehow save the day but all th box a generic t v remote control for the web server and something vague called t v equipment so referring to that referring to tangible elements and functional claiming combined i would like to begin by addressing some of the questions of the court asked one question was is this claimed invention simply about the idea of automating or is it something specific dance of this and we have a few citations one is at appendix eighty six one zero we asked lease expert what the invention is a proud and the question was so the invention is automating steps that were conventionally performed but automating it using the internet the response was automating and automating it and transferring the content i mean that's i guess where you would say the heart of the invention and the details or at least the claim element so we submit that this is a case where it's simply specificity is provided it is to do with the conventional way used a routine way and again appendix thirty seven thirty seven no thirty seven or one lines thirteen through twenty he describes how the first step step is of plain one is done online in his invention and then as for the rest of the process he says it's the same as we saw before when he described the way the prior rocked it so all the other steps in the plane are exactly as before so this is not like specifically address councils argument that the inventive step is the requirement of uploading video content along with metadata one of the first questions you  and first of all there's nothing in the supreme court or this court's precedents that requires a finding of fact in eligibility simply because there is some novelty in the process in fact a novel process can still fail the record i guess i'm remembering testimony or decoration something they're expert at some kind of assertion of new things to get away the point was narrow or that nobody in this context ever sent a movie with this particular method data structured in a particular way can you just clarify what what the record indicates about your contention as i'm aware the record especially joint bendix thirty six ninety seven lines levon through thirteen indicates that in the conventional video on demand work flow matter data was provided along with the videotape in paper form and that's what mr bercow one described as well and so as far as the record is concerned  agrees completely with what mr rear there have been explained and what the patent shows that these are simply conventional steps that are being automated i'd like to just make one point on preemption of the patent by virtue of entering into a contractual agreement with the third party and b b r to be argued that why in telecom did not have to actually perform any  and it was sufficient that hawaiian telcom had entered into a contractual agreement with a third party that might have considered using the web server or the internet somewhere and it's video on demand workflow and we submit that that is exactly the kind of invention that satisfies all of his requirements and should be found in the eligible joke i want to make something clear but i did not say it if i said he misspoke there was no evidence whatsoever in the record that any prior art system uploaded meditative along with the video and in fact this counsel was talking about in the old pirate systems which is the ancient history when the videotapes were delivered information about the movies were on a piece of paper that goes that is there is the intervening prior art was the prior of record after eighteen months of litigation and two post grant review proceedings these defendants said three pieces of prior art one was the district court found was a system a method for providing storage data on servers for in an on demand media media delivery system one was a system a method for constructing delivery display or internet t v content and one of them was the pegasus which was the why and the time warner legacy system which of specifications developed to facilitate vo d operations they're expert testified it's in page fifty five of the disk of the appendix that by two thousand and three all of these systems have already been automated and the district pointing to the fact that elements are all in the art is not enough the step to invent of task requires that there's a technological solution with the detail how and this claim goes from column twenty one line seven to the top account twenty two that's a that's a detailed recitation of how the ends are met irrespective of whether or not every one of them were all in the art they have to show that not only were they all the art but that they were arranged this they are arranged in the claim the step to column sixteen line thirty seven through problem twenty more on line seventeen through the com seventeen line twenty one the fact of the matter is that the first episode determined whether or not this was an abstract idea if it is you but the but the bottom line is the judge it's unfair to my client to allow this defendant to kind of come in here and just say hold the idea was this uploading along with a minute there that may be what it involves that may be one you're saying there is something new and not found in prior art or summary judgment purposes about sending a particular kind of document called an electronic route i'm moving along with the meditative data together with the video as opposed to never ever leave electronically it's also a technological problem that at least of the prior art automated systems where where their content providers did not have the opportunity to play a role or dictate or control how the electronic programming guide got updates that that's the benefit of it that was the desired sought that's that's the way the case only out of the idea of sending the the met in the that electronically but the fact is that the patent office allowed this patent again in a post grant review at finding that uploading the element uploading the video along with the internet along with the meditator over an open online system again this is just one aspect i mean  now i don't want them again but i mean like in the title converted all those things i mean they may be only art but there's no evidence in the record sufficient this was a summary judgment motion we were denied the opportunity goes jury on this issue after the judge had had ruled