it was not raised in space but he thought this would be a great controller that's what he built and filed a patent application on it he tried to get a broad claim to just a touch screen method of control the patent office rejected that and he ended up with a more liberal play which combined th of control with this communication method between the two devices as with patent office allowed again following up on the questioning and the last witness by judge pleasure for purposes of simplifying we instead of discussing the method separately from the system we use the method claims of representative and it who we talked about were one and ten in the region you focused on ten which simply added the using this communication system for one device to the other the district court said that's all those claims are all directed to the abstract idea of wirelessly controlling remote devices well that field of the invention that existed before the claims are drawn to how it's done which is a combination of the touch screen method and the particular bluetooth method of communicating between th one no in the sense that we have used claim ten for discussion purposes because well it seemed to suggest that the reason claim ten was patent eligible was because it use the new technology remote device by using devices implementing what the receiving a response from the remote writes this was the approach moved to to use broadcasting and receiving a response from the message is  and i think what judge drawn to did was he allowed the addition subject to whatever jurisdictional arguments they want to make with respect to the rights of the parties the issue of simply having a party with something i'd like to talk just a minute about step two in this particular churches opinion and here there was what i call itself going problem in two respects st of all the judge relied on the self and district court case which said that bluetooth was generic and with a district court there was actually talking about two thousand and seven not two thousand and the other problem is this court's decision so when i think came out on june th in which what they said was  april two thousand bluetooth wasn't convention for any purpose or no products in the marketplace and is an open question what the communication be used for and maybe at some point people can argue obviousness but that should not be an l made a motion to rule forty three to add you lot to steve one thousand and seventeen to this appeal we did not oppose that motion mainly because we were trying to take a little more pragmatic approach to this issue we w authority the appellate level doing you know like twenty seven yes you're on the right so that cures one of the jurisdictional questions do you agree with apple i understand apple correctly that there remains another jurisdictional with regard to fortress and filing yes your honor and that is a standing issue which we don't believe can be waived we decided to not brief that issue to this court but rather to rely upon what apple has done distributer not before else it could be for somebody yes we're in the we're in the district which are different washington did this issue come up at all was it raised was it not raised because they didn't respond to discovery you just didn't find out about it what happened is my understanding your honor is that we didn't know about the issue we didn't have discovery or insight into the fortress agreements and what they were like at the time so by the time we got to decision on want to one that information wasn't before us we didn't have to visit that her obligation at the earliest stage of the case to do discovery under stiction and you didn't do it i know you can't wait to have stiction but it a certain point if you don't challenge it and don't make a record that or allows a challenge then in a sense you can waive that delivery to develop that record further haven't you i mean here's here's the problem you know  this record that would dispute jurisdiction and then somehow in a in a related but different piece different jurisdictional facts come to light how is it appropriate for you then to come into an appellate court after a five judgment in that case  it and say look we didn't develop these jurisdictional facts but this other entirely different case right now you don't have jurisdiction so you're i guess i would answer that this way it i think it depends upon where the case is in the posture i mean at the because in the end and then now on appeal because of developments in other cases you're saying wait a minute they probably have jurisdiction this case either isn't that too late you're on i think on a certain facts from set circumstances it could but in this case the well plain facts said that he particular entity own all the rights to the patent and did you challenge that we did not want you asked for discovery and that issue we did not because we're stuck with those facts and we were stuck with those facts simply because we made a different motion to dismiss under rule twelve rule twelve b six on the want to one that didn't up getting decided in our favor and so at that point in time we were done with the case and had no ability to go get further discovery i think if we had gotten that decided me that different matter choices right i mean it seems to me that at a certain point even if that case goes to jurisdiction that we're have to independently address if it wasn't developed in the way it should probably be decided the way in or can in this case let's just talk about this case well on the facts we have assuming and i don't think you seem to contest that that we can share the judgment to have a judgment problem by adding the seventeen that there was no challenge to jurisdiction it any point at the time of filing why don't we just curate here and roll on the merits of your one on one issue your honor i actually agree i think the one on one issue is so clear in this case that that's exactly what i think should happen you know i would stand before you and tell you that i'm not quite clear why alan why apple has pressed this point so much i don't know we decided not to press the point because we think the merits of the want to one or what should be for those positions of prejudice you the only prejudiced my client would be that the death spend more time and money discovering those facts and waiting for their want to want to appeal to get heard because i think we'll be right back here on this i think they're on washington your honor and texas sorry  so moving on to the merits unless you're under seventy for the question about the jurisdictional statements have i think to start out it might or might be best to start work judge plag or left office discussion with my colleague from apple and i completely agree with judge pleasure this is about the claims and what you lock wants to do is they want to argue about elements and devices and things that simply don't appear in the claims and they're trying to get this court to agree that something passes muster under one  upon a claim that doesn't appear in the patent there are two focuses for eligibility are a touch screen or a touch screen method that is used in a bluetooth environments some combination of those things together but when we look at claim ten the only claim they argued about in this case and the claim that i think i heard michael my from the lawyer from uniloc just mentioned was the claim that they're going to rise and fall on that claim only mentions bluetooth in the fact that the transceiver and the remote device are bluetooth enabled it doesn't say you have to ever use bluetooth to do anything in the claim it doesn't say the wireless connection is a bluetooth connection it doesn't say the broad message that's being broadcast is in bluetooth format doesn't say the response being received is in bluetooth format it doesn't say anything about  those two elements are bluetooth enabled that is the only mention of bluetooth in the claim and i would submit that this claim is surely functional claim in fact when you look at the devices that are in the claim and therefore of the transceiver the remote device the display device and an include device three of the four devices do nothing in the claim they have no function in the claim uniloc would argue that the transceiver is used to broadcast the message and receive the response but in reality the claim doesn't say that the transceiver broadcasts the message and it doesn't say that the transceiver receives the response something is broadcasting a message something is receiving a response but the claim is silent on what that something is the same goes with the display device you manifest the said remote device on display device but it doesn't say what the display device does doesn't split how it does it import devices the same way you register a contact provision provision on the input device but it doesn't say how you do it what's doing it or what's unique about that the elements of this claim a stablish ing or alice connection broadcasting a set message receiving a response and transmitting a command are simply well known routine and conventional steps in a stablish in a wireless network and communicating across it it's nothing different than what's been going on for years and in fact just player mentioned you know going all the way back to a patent right after world war two when i was thinking about this case i was thinking about the radio operators and what were two they broadcast a message all the time and receive responses back all the time across the radios they were necessarily directing it to one individual they were deafening who's ever on their frequency so that's what we have in this hits this claim is is just a broad functional claim that has no specific means or method to improve computer functionality which is why it's abstract under claim one which is what the under  e step one which is what the district court found with respect to there is no inventive concept the st place we have to start in step two again is the claims and what this court h set aside the abstract idea what else is in the claims that would transform that idea into a concrete concept but once you set aside the abstract idea here there's nothing else it's simply absence of anything else this claim has no specificity none of the claims have any specificity and under step two that dooms this claim claim eleven yes around to claim eleven is the  apparatus claim and if we look at that claim we can see that the beginning fortunes of it and i would agree with your honor bus processor transceiver display device input device they're all physical things but they're extremely abstract physical things we're not exactly sure what they are more importantly they don't claim doesn't say they do anything they're just a bunch of physical things that have no functionality have no doing anything with in this claim then we get down to what the processor does and when you get to the processor it's for performing the same abstract method that appears and claim in claim one the exact same abstract method there's there's no specificity to it there's no telling what's doing what what's doing the establishing what's doing the broadcasting actually the nd half from that claim as a method claim yes your honor i would agree that it's  and i would submit that this claim doesn't add anything any specific components that would transform the abstract method into a concrete into something concrete let your hon have anything further for me that's all  he had not thought to ask you just record for a claim construction because we did not see an issue here where you look at claim one which is a mess and claim it talks about having a  enter in a remote device and then there's a step broadcasting we would think would be evidence that the transceiver does the broadcasting that's why it's in the claim like calling here says well maybe it's there for some other purpose  we don't know it is not really doing anything so that's a claim construction issue which i didn't see somewhat bizarre but when i was just argument i started looking for other claims to look at claim twenty one where it makes quite clear the