that place judge moore has turned the floor over to me because i have to make a motion in fact i'm privileged to make a motion today i am moving the admission of my lot for steven and he's a member of the bar in good standing with the highest court of new york i have intimate knowledge of his credentials because he's been working for me for almost a year now and i have known him for quite a while before that  which is where i had the privilege to meet happens he has been working for me and he has definitely accorded himself properly for purposes of to be permitted to become a member of this bar and perhaps most importantly today's a big day because it's also his thirtieth birthday so might as well do everything all at once so i've moved his admission well i've consulted it was a tough decision but  words were very convincing as they often are actually so we are happy to welcome you to the bar and i have no doubt after clerking for her you'll be an excellent contribution to our so please turn and  one with respect to our claim construction your honor first term that we'd like to address as a credit data the primary one of the issues there was that some of the claims don't require that big of creation form and the only requires credit data reports construction information entered on the qualification form so efficient for lending institutions it's going to deny credit it's important to add a limitation to some of the claims which you believe is improper number is that the language sufficient to extend credit was removed during prosecution and as this court had said and tell it tronics courts are not permitted to reach back and to claim limitations that were originally removed and were removed during prosecution and then the third reason with respect to credit dad being improper is that the specification doesn't require him to credit out of the sufficient for lending institution to extend and i credit and that language just doesn't appear in the specification isn't that the whole point of what what the claims are trying to get at is that they're saying that you need the information so that that you can decide whether to extend credit your honor i think  part of the process for claim to try to is to provide something that the jury understands not to prevent legal listing terms that the jury the jury is not comprised of lawyers number two one of the things that the court specifically to a process for applying for credit none of the claims require closing a loan and what this does is focusing on extending credit  with respect to the positive credit decision again and what the court did was to employ these are legal listed terms a proposal to extend credit that can be accepted by the user to create a neutral  e a contract or depending upon what aspect of the case a binding promise again this language is not in the specification and actually contradicts the specification which contemplates other embodiments we've seen which would six lines ten to twelve of the five thirty two pattern which talks about the text message decision contains a loan i think number and a request for more information from the far or well even if you didn't even if you didn't conclude that there had to be a binding offer and acceptance at the end of the day isn't it clear from that suspect that what you're talking about is providing sufficient information so that an actual offer ahead that could become binding yes may no not necessarily your honor there are different bottom and disclosed in the specification so a positive credit decision would be broader in this than say an offer in this or that finding offer in the sense that it could also be a request for information which is a positive decision says we still want to do business with you but we need more information or we may want to do this work for you the other thing could be a proposal or  identifying an interest rate for example but not necessarily binding because nothing that says that these terms are binding contractual requirements you know an offer can also be for example a positive credit decision i think would be broader then an offer has a positive credit decision could be an offer a proposal that's not binding or finding off or it could be a request for additional information it needs to be based on credit data you're on but then trying to say sufficient information was sufficient information they'd be different for one money and situation versus another that all lending institutions need were argued at trial was that the credit data that is transferred to the lender must be or is required to be to include social security or social security number but what we see for example in don't want to provide certain private information until late in the process after they get the acceptance of after that except for example proposed interest rate propose one loan terms which the user may qualify but the biggest problem that we had with the term offer your honor is that the term offer was imported into all of the whereby clause e reference to an offer and what that means would be would mean if a construction was appropriate for a claim one but not for the others no your honor i guess from say for where  clause the term offer should not have been imported into all claims but the one fore the district court the summary judgment regarding the five nine four patent asserted summary judgment entitle men on one hundred one for claims one two three one two and three and six through fourteen of the five nine fo larger set than the claims that are being appealed in the red brief there's one issue that's even more troubling because of course they can decide to winnow down the issues and maybe only appeal the denial summary judgment with regard to some claims but the bigger issue i have is for the eight one six patent in particular the move for summary judgment below one to four to seven to nine eleven twenty two and twenty three full stop on appeal they're asking us to reverse the district court's judgment which includes a number of claims including claim twenty four upon which they never move for summary judgment below so this is not something that you raised but it is a point of concern for the court how do we deal with the red briefs assertion that it's seeking to overturn a judgment among other things with regard to a claim that it never moved for judgment on below honor well we would submit that they didn't properly move to reverse it or to reverse all of those claims that were addressed below i think you know one of the issues may be that when we went to trial narrow the scope of places it would be to address a trial and so maybe conversion came up here when they claim twenty four pop in and because twenty four of a one six in general they move for summary judgment of a much larger swath of cl appealing so that makes sense given your winnowing down the claims and that's what should happen in a district court litigation but suddenly they're asking us to reverse the district court's judgment regarding claim twenty four but i don't see any judgment regarding twenty four because that wasn't part of the motion is that a claim you explain why it thinks this claim is that now tomorrow i think the court has that option of doing that i think the other issue is should the claim construction change i guess theoretically that could also change  these claims directed to an abstract idea that isn't the part that involves the inventive component so are you conceding that the claims are directed to an abstract idea you know your honor and how are they not ok let me trees position is that we should try step one and step two h average step one is when you look at the supreme court case of mail in alice for example they don't provide any guidance on how we should go forward and prove that it's not an abstract idea the idea is we're trying to prove a negative but court's decision that says it's patent eligible we only have that i think there are two potential arguments that were made by zillow as to what was the abstract idea i think one of them was a clearinghouse which was certainly much more than that and the other one i think how what  are you much more than a credit application clearinghouse your honor if you look at i think i think it's mortgage greater what that is it's a deposit of potential loan terms that are deposited into a database and the borrower goes through that and looks for maybe loan terms that they might be interested in what we have here is a very specific situation where a borrower so this information to a number of lenders those lenders response specifically fact to that borrower based upon that bar with specific information and it's done simultaneously so that's forcing competition so what this invention is it is you just have a credit application clearing house  competitive and i'm having a lot of difficulty seeing how these claims survive alice line your time's almost up so if you think you have a better argument on step two you'd like my turn to that ok so in step two your honor if you look at  year what you have in that particular situation was the application of a mathematical formula really a formula that was applied to curing rubber and what the court said and up i safe was that the only new inventive application in the deer have invention was issues of this time you know them and this continuously monitoring the temperature so it's our position your honor that the simultaneous competition that's created then so if if you are wrong and we don't have the ability to address all the claims and even if we were to agree with you don't want to one we've got to go through all the other issues because you got this one claim that wasn't part of your summary judgment below so there was never a decision that what do i do with the don't claim that's only what i worried about i don't care about and winnowing the claims down what i care about is you suddenly asking me on appeal to decide as an appeal an issue that wasn't part of sure so my understanding was that in the post ok and you're saying these are the claims with respect to which you're asking us to rule on one of one grounds correct yes ok no where in the record can we go to see to really answer the question the judge moore has raised namely are all these claims properly before us specifically claim twenty four do shows now where we can go on the distinction between a clean providing enough information to form a contract between a lender on a par or and just providing data  don't believe that that is the proffered distinction for one purpose i believe that the claims do require sufficient information for the matter to make a decision that's clear from the patent itself which is about a universal loan application and if you look and about applying for a loan online and that's what it's about except for you closed the loan that's what happens but whether or not that saves it from one to one i don't think so you know i think whether it's a loan application or something  received by the far this is still just economic activity for form using generic computers do you agree with your friend on the other side then that whatever you describe this economic activity to be that there is more detail to great i don't believe there is more detail certainly not the dealer trial you attract has a much more detailed description of the technology involved far more flow charts but the basic concepts are the same in all  distinction or is there something new or novel about about being able to avoid the mortgage broker well it is just completely computerizing activities of work performed by people before but the court has said over and over again that's not  that we could so that if it was a final judgment feel you didn't have a ruling because you won the inventor ship issue and the judges never will just never ruled on your summary judge correct on your summary judgment that the form that is received by the system from them or includes a social security number includes all the information required to make a decision a claim says the patent explains the party makes a decision figures in the dealer truck in mortgage greater paths is the central computer with a database it connects over the internet to borrow computers where farmers can fill out forms and it connects to wonder computers work and receive elude system was provided she's anonymous play for information is generated by what's called a radio it's kind of a real time program that feeds off the market rate ok mr hadn't thank you very much that all of the claims were not in the valid which supports the fine of the do this is a new inventive application the argument that this can be done by brokers was presented at trial and was rejected because of brokers hired by waiting for them to all come back they may or may not come back they may reject you out right or right here are what the mortgage broker again is hired by specific banks and they're pushing specific banks and so it's not the same as change or a new reaction a new way of doing business lending treated the company experience significant commercial success a very rapid rise and then you had all these awards that were granted from the industry for the patented technology and then you have all of these copycat companies spring up which didn't exist prior to landing tree they were the first because this was something new and i don't know is the right term is a secondary and to show a pattern eligibility but when you look at situations on a case by case basis that evidence which is in the record supports the fact that this is something that's a new inventive application the  that you've got to look at the claim as a whole i think that if you take out that final of this competition from all of the other aspects i think it's possible it's certainly more abstract and you eliminate the new inventive aspect in other words it is true that you know transferring data over a computer is not efficient true that getting the offers back from the lending institution is not when you put them together the same way that we did hear those elements were put together you created something and here i mean literally we created money tree created entire new industry  with respect to this argument that an application for the social security number must be transmitted in the first instance to the lender is not accurate for all the environments if we turn to the eight sixteen patent at a five thirty one and we go to column three line thirty three thirty three it talks about the lender accepting application then stage nine the borrower can reply stating whether he accepts or denies contract paper to control ok i understand i think both counsel think all counsel for their argument to the case is taken under s