hear argument this morning in case thirteen two ninety eight alice corporation versus c l s bank international mr philips thank you mr chief justice and may have to please the court it is common ground between the parties in this case that section recognized exception that this court adopted many many years ago applies under these circumstances and repeated in this common ground between the parties for that that are in our patents speak directly to the language of section want to one that is they are process and they are machines and they are and they are improvements to the process in the machines and they don't they don't dispute that by its terms want to want to applies the only argument between the parties is the abstract idea exception that exists our if our patent merely claimed intermediated settlements all i have to say i don't really know exactly what that means because i don't think that's the same kind of economics basic economics concept that hedge risk treatment is but if it claimed that we would we wouldn't have a distinction from bilski what we claim is a very specific way of dealing with a problem that came into being in the early one nine hundred seventy s of how to try to eliminate the risk of non settlement in these very massive multi party problems in which you need to deal with difficulties that exist in different time zones simultaneously and to do it with a computer so that you not only take them on chronologically deal with them sequentially based on the kind of software analysis that the patent specifically describes it by function and goes even further than that and does something that no escrow agent and no intermediated settlement that i of settler that i know a lot of it actually blocks specific transactions that in the shadow account would violate the terms of the settlement well that wait a minute is what i mean if you describe that to a second year college class computer is involved and it's it seems to me it's necessary to make it work but the but the innovative aspect is certainly not in the creation of the program to make that work all you're talking about is i can use the word and i sorry why is that less obstruct i mean imagine king tut sitting in front of the pyramid were all his gold is stored and he has the habit of getting chits away good for the gold which is given at the end of the day and he hires a man with an abacus and when the abacus keeping track sees that he's given away more gold than he has in storage he says stop you see you're my mother who used to look at my checkbook when she saw that in fact i had written more checks and i had in the account she would grab it stop you see so what is it here that's less abstract that the computer says stop it i was that less abstract in king tut if we had the same thing with a grain elevator if we had the same thing with a reservoir of water or if we had the same thing with my checkbook you see the point i do see the point just as prior and it seems to me it goes to the question of the methodology you saying what is that it in other words if you say computer stop you have an invention useful ad but if you say motor stop you don't know well again it seems to me that in apply it and you say apply it through the computer is that enough to make it up not just the abstract idea and now we're at the heart of why i used my exaggerated examples because you will tell me why this is enough right because just aspire to the concept here is not simply to say stop stop is obviously part of the element of it but it's also designed to ensure that at the end of the day this transaction in the midst of literally a global set of deals that are going on simultaneously will be implemented at the appropriate time in the appropriate way and whatever else that may be it seems to me it's difficult to say that's an abstract i'd say ari has it implemented but what it appears to be it sounds like you're trying to revive the patent of a function you used to work function earlier and that's all i'm seeing in this patent is the function of reconciling accounts the function of making sure they paid on time but in what particular way other than saying a deal with the a computer is this something new and well function it does it through it creates the shadow accounts because of the concerns for security you don't you're not going to allow somebody to enter into central banks own accounts use it you create the shadow accounts you monitor through the software that allows you to do that you evaluate each of the transactions to ensure that the settlement will be available you do it sequence really and you act on it by the end of the day or going over the transaction is to take place and you implement that the same ole same ole justice always a computer any different in that respect at one level i agree with you completely there is no difference between them this court does however so are more than a few occasions albeit in dicta that coming up with an idea and then say use a computer is not sufficient and what i'm trying to suggest to you is we don't fall within that dictum now if you don't accept the dick then you say use a computer is fine and i think we're just saying using computers is as much of a novelty i mean pretty clear that if what you did was take the idea of solvency remember king tut that's why i use exaggeration and you in what you say is implemented by having the a backless man keep track and say stop ok then we implemented by having somebody with a pencil and piece of paper and this is all that they had you see say a man with a pencil a piece of paper keeping track and saying stop well we say implement it in the computer which will automatically keep track and say stop are they all enough are some of them enough what's the rule and you realize i couldn't figure out much in  go beyond what i thought was an obvious case leaving it up to you and your colleagues to figure out how to go for it so you're making enough because there are enough what's bothering me and i'd really like to get your answer and look there's no i'm not the first one to confess to confess that they're trying to use language to describe these things is not all that easy but the way i think you can meaningfully look at this is to say that this is not simply something that was a fundamental truth this is not something that simply says use a computer it's not simply something that says maintain solvency it operates in a much more specific and concrete environment where you're dealing with a problem that's an existence since the one nine hundred seventy s a solution in the one nine hundred ninety s that c e o s itself acknowledges needed a solution and came forward with their own system idea process method without attaching a computer program you cannot absolutely cannot do that is with the system because it is so complex and so many in a related to paros i thought and again it's just a thought because i don't have the expertise that any computer group of people sitting around a coffee shop in silicon valley could do this over a weekend suppose i thought you mean wrote the code yes right affected as the solicitor general said the computer is essential to the efficacy of this invention because of the complicated financial arrangements that exist and that can only be resolved on a on a real time basis you abacus is great if you happen to be waiting for the pyramids to be finished or maybe a way for the gold to move in and out but it doesn't help you with an abacus if you're dealing with literally thousands of transactions simultaneously going on in different countries which is to identify the functions that you want to be provided for with the software and leave it then to the software writers who i gather are you know quite capable of converting these functions into very specific code mr phillips could you could you just add a gate your argument for me because you just said this court has said it's not sufficient if you have an idea and then you say use a computer to implement it right so are you saying saying i sort of what i'm saying both actually i mean and i'm making both of those arguments i believe that if you analyze the claims and you don't caricature them and you don't strip them out of the limitations that are embedded in there this is not some kind of an abstract concept this is not some kind of sun an abstract i did it's a very putting the computer stuff aside completely right you're saying that you've invented something where you know there is something that you've patented that has that is not just simple you know as a third party to do a settlement right and what is that and putting the computer aside it is well and again it's difficult to do that because you absolutely need the computer in order to implement this but the key to the invention is the notion of being able simultaneously dealing with an on a chronological basis to stop transactions that will otherwise interfere with the ability to settle on time and under the appropriate circumstances and today and the only way you can do that in a real time basis when you're dealing with a global economy is to use a computer it is necessary to the efficacy of this so in that sense i can't the state i can't i can't desegregate it the way  in some sense you're suggesting it seems to me it's bound up with its build up with the whole notion of is this an abstract concept can't can you not fact that this is there forty two briefs in this case i actually read them and i found them very very helpful up to the point right have to make a decision because they're serious there i mean you know the problem that i came away with is the one that you're beginning to discuss that if you simply say take an idea that's abstract and implemented on a computer there are you're going to get much faster you're going to be able to do many many things and if that's good enough there is a risk that you will take business in the united states or large segments and instead of having competition on price service and better production methods will have competition on who has the best patent lawyer you see where i'm going on that of course and if you go the other way and say never then what you do is you rule out real inventions with computers and so in those forty two groups there are a number of suggestions as to how does go between school and sure of this i would like to know i don't know if you can step back from your representational model that's a problem but you're all we have now and from my point of view i need to know what in your opinion is the best way of sailing between these two serious arms look just prior i guess i would suggest to you that you might want to deal with the problem you know as opposed to the problems you don't know at this stage i mean we have had business method patents and software patents in existence for well over a decade and they're obviously quite significant in number and and we know what the system is we have in congress looked at that system right and didn't say no to business methods patents didn't say no to software patents instead said the solution to this problem is to get it out of the judicial process and create an administrative process but leave the substantive standards in tech so i my suggestion to you would be follow that same advice a liberal interpretation of one hundred one and not a caricature of the claims analyze the claims as written and therefore say that the solution is one hundred two and one  just say do this on a computer as opposed to saying anything substantive about how to do it on a computer i would urge the court to look at joint appendix one fifty nine to eighty five to eighty six where it goes through the flow charts this is  is just a specific example of the method by which you stop a transaction and it goes through a very series of detailed steps and what the computer has to do in order to do that it doesn't actually obviously put in the code but that's what the have don't put in the code because nobody understands code so but put in the functions and we know and we know that someone skilled in the art will be able to put in the code and if they aren't if they can't do that then it's not enabled and that's one twelfth problem to go back  of your question so on the one hand you've got a problem that it seems to me congress to some extent has said is ok and we've got a solution and that's solutions playing through on the other end if this court were to say much more categorically either that there no such thing as business method bad is or adopt the solicitor general's interpretation which is to say that there cannot be software unless the software somehow actually improves the computer as opposed to software approving every other device or any other mechanism that might be out there what we know is that this would inherently to be clear and in one fell swoop hundreds of thousands of patents invalid and the consequences that it seems to me are utterly  well i'd be very hard for me to see how that how to get around that particular problem because the computer is the essence of it and a portion of it is clearly the software so i think if you say there is no such thing as software pad villany i do lose in this making the computer itself work you understand the government say no software patents the way i interpret the government's the government's brief there was a it was like there's a bloomberg refiled here that was on this is no you can you can patent computer software when it's an improvement in the computer when it's an improvement in software when it's an improvement in the technology that is developed out of computers like robotics when it is an improvement in a machine or technology but you cannot improve that we are it is simply an improvement in an activity that is in gauged in primarily through mental processes but what they mean by that is business approach and if you're going i b m s argument is if you if you knock out software pads you eliminate web browsing word processing cellphones e mail those are all activities that i don't think fall within the meaning of the meaning of the the statute and it doesn't seem to me to reflect an abstract idea it's an it's a it's a line you draw it that takes out business about the patents if the court wants to eliminate business method patents fine but you just said no to that and bil to three terms ago now to be sure give the solicitor general credit he comes here and says to you we don't like a result in bills we want you to say don't use process in order to get there which is a statutory interpretation come up with a an extraordinarily complicated there's an overlap here in this context i think that basically the respondents there it would mean that they are completely coterminous and i don't think that's what the court meant and also we know from deer that there's got to be at least some significant limitations on the extent to which novelty has to be built into want to one that is the province of one zero two and one zero three and as i said congress modified the system of education to create an administrative mechanism that allows you to get to want to and one of the three and it's at least in context it's important to realize they have been eleven cases since that was created nine of the eleven have been knocked out on one or two or one of the three grounds and not on want to one ground and it seems to me that's the answer to this problem is leave one on one as the course that in a particularly abstract way i think you could still say that the system claims which clearly or are out of create a computer system and how to implement it using that method would be a much more concrete version of that in a way that would take it out of  that said i thought i'd obviously believe that all of our claims satisfy want to want and should go on to the next stage can i give you a hypothetical mr phillips and you tell me how it's different to the sample let's say you know thirty years somebody took a look around the world and said  a lot of people seem to order products by mail they get the catalogs in the mail and then they send back their return forms and that say that one of the founders of the internet said wouldn't this be an amazing system we could actually do this by computer and they had patented that but is that the same i don't know if it's the same but i would i would argue that it could very well be a patentable subject matter because it but it depends on how the claims play out now but exactly i mean the claim would have said something along the lines of you know there is this process by which people order products and we want to do it over the internet we want to do it electronically and we will use a computer to do that to essentially take the process of mail order catalogs and make it a letter on it i could certainly i think i could write a claim a set of claims that would i believe would satisfy want to one and to the extent that you that you think those are no different than the ones i have here then my argument is simply i think i satisfy want to one with the claims we have before us or if they are no further questions i'd like to reserve thank you mr philips and mayo holds that running such a principle on a computer is quote not a patentable application of that principle those two propositions are sufficient to dispose of this case if bilski and mayo stand alice's patents fail therefore mr carr mr phillips and his friends are asking this court to change the standard even though this court has had three unanimous decisions the last four terms establishing what the court called and myriad had a well established  on the abstract idea justice ginsburg u s history philips what's the difference between hedging in this claim there is no difference this is hedging it is hedging against credit default rather than price fluctuations but it is simply hedging and mr philips that up to twenty six minutes and never once referred to the patent let's look at what the inventor of the so called inventor said about this invention this is the j two ninety three ninety four in the specification this claim has simply two steps it's very simple first deboning in crediting on a real time we have multilateral transactions global things chronological time zones and so forth none of those are claims your honor those are all recited in specification the claims read on a single transaction involving two parties can i ask you some point not necessarily the second to say this is just you know you have an opinion for a court to print judges can have different interpretations all you're getting his mind ok but i think it's  pretty easy to say that archimedes can't just go to a boat builder and say apply my idea all right everybody agrees with that that now we try to take that word apply and give content to it and what i suspect in my opinion mayo did and bilski and the other cases is sketch an outer shell of the content hoping that the experts you and the other lawyers and the the circuit court could fill in a little better than we had done the content of that shell so so far you're saying well this is close enough archimedes saying apply it that we needn't go for now will you wait some point in the next few minutes give me your impression of if it were necessary to go further what would the right words or example be your honor has just described as too abstract ideas the p t o has filled in that shell by listing economic concepts legal concepts financial concepts teaching concepts dating and interpersonal relationships and generally how business should be conducted as examples of those things that are likely abstract which of course all follow directly from bilski in the discussion this court had in bilski and this patent these patents fall squarely within the congress in the a i a confront of that reading congress in the c b m method said business methods that are subject to special scrutiny that is dubious patents include methods and corresponding apparatus which is what we have if at all written their pockets to make it to make their software eligible what would what do they need would have needed to have added just the sort of are they have no software first they've never written software they've never programmed a computer so it that's a nonexistent set second there are many technological solutions to trading and subtle problems for example data compression is these these trading platforms and all of the movement of very large quantities of data around the world the physical pipes that is the fiber optic cables and data lines are limited there are very sophisticated algorithms for both security and speed to move data through the transmission lines in novel and useful ways that could we patent nothing like that is claim to or to come back to our store today if you look for example that claim sixty five of the five ten patent as mr philips raise it literally reads on a two party escrow to sell a house so long as the escrow agent is typing the stuff into the hood one using the affected and i'm just looking at it it looks pretty complicated there are a lot of arrows in the you know different things that going to pop up i mean you know what is it in different directions and i understand him to say that it each of those places that's where the computer is needed mr chief justice figure sixteen has nothing to do with the invention asserted against my client in this case there are two inventions in this patent one of them soon involving multilateral contract formation question about how the computer does it of course a patent that describes sufficiently how a computer does a new and useful thing whether it's data compression or any other technological solution to a business problem a social problem or technological problem would be within the realm of the of the patent laws that is what the patent laws have always been for this is not such a patent and the reason for that is this is a pre built ski set of patents these were prosecuted under the old state street test where all the an applicant had to claim it was a result would you give me again you'd already did months an example of a business process patent of business process idea an invention that is patentable your honor there are many examples one would be a technological solution to a business problem so that for example you give a different different example there are many applications today the court may be familiar with streaming video to watch video on your computer it is not possible to get enough data through existing lines in its raw format the data has to be manipulated in order to see live video so if you want to watch t v on your phone for example those algorithms those inventions are undoubted f the process in that example would be a computer running that particular data compression olive that's how to measure the computer that's how to make a machine work better yes you rather have the right you is there any business process any business activity that is methot in your give me an example i'm probably data compression example was a good one i'll try an encrypted technology many of these trading platforms you know dealing with securities and money would require some sort of security devices you could have a process for securely transmitting data would be another computer implemented technological solution to a business problem again nothing like that claimed here how about the email and just wor processing programs honor program the movie try it this way to both of your question in our view if what is claimed as the inventive contribution under mail in other words we have an abstract idea as we do here and what is claimed is the inventive contribution for step two is the computer then the computer must be essential to that operation in represent an advancement in computer science or other technology and we know that's not met here think both of those would have been technological advances that were patentable today because they would have provided a technological solution to a then unmet problem today reciting and do it on a word processor is no different then an do it on a typewriter or do n do it on a calculator the inventive contribution component which uses specifically the language of conventional and routine and well understood we all evolve with technology that's why it's different than the abstract idea component and here we know that these patents don't claim anything that was not conventional well understood in routine we went through that in great detail and alice has never disputed a word of it they just say you're not supposed to do that analysis even though the court nine in mayo said we should and in this case it's very important to look at what alice his own expert said on the subject this is not our expert this is alice as an expert in the supposed thirteen twenty seven twenty eight of the joint appendix it is possible to do the business methods  maintaining accounts adjusting accounts and providing instruction without a computer or other hardware and then just prior directly to your abacus if someone had thought of this invention so called invention one hundred years ago they might have implemented it in a non electronic manner using various precomputing tools such as an abacus or handwritten ledgers we know from benson the court's seminal computer implementation case that if you can do it by head in hand then the computer doesn't add anything inventive within the meaning of the want to want to section that is the holding of benson and the court reiterated that in ma'am fluke said exactly the same thing if you can do it with pencil and paper then the computer is not offering anything that the patent laws are or should be concerned with it is only where the method will not work without a computer which is not these claims and where the computer itself is doing something that the patent was willing to protect what if what if you can't you can do it without a computer but it's going to take you know twenty people one hundred years and i would steal radically you can replicate what the computer does to it's impractical without looking to do it on the computer mr chief justice first these claims literally read as as alice reads them on a single transaction between two parties so it's not twenty people one hundred years it's one person sitting in a room so that's not for a second if what is being claimed is the necessary speed or efficiency or data crunching capabilities if you will of a computer then it would have to be claimed and there's nothing claim to your all that is claimed my friend is going to end up on the bottle and to and tell you all that the expert said well what is claimed is a computer but it's just a computer it's just a computer what happens at the end of the line is the automobile engine goes off or it begins to sputter or it turns left you see it's possible to take archimedes or king you know i used that example purposely to call attention to that to the problem you know you can take those things and you're not just saying apply it and you're not even just saying you are saying use the computer but at the end of the road something physical in the world changes and everybody would say now that that falls within i mean probably i mean my hesitation shows i'm looking for the right words justice prior i think your point is the reason that it is equally fallacious to suggest on the one hand as alison i b m does that simply reciting a computer is a magic key that gets you through want to one and you never have to do any other inquiry and what some of the folks on the make in the other side say which is that computer software are never eligible both of those things have to be wrong because what the court said in bilski was future innovation is too uncertain we're not going to do that as a court court laid out in an approach using abstract ideas and bilski and inventive contribution and mail that is flexible enough to take into account that innovation and to deal with particular claims in context which is why at the end of the day we have to come back to  decide which mr perry before we get back to these matters just you said to justice scalia if the patent sufficiently describes how a computer will implement an idea then it's  sufficiently does one have to describe it and what do we want a judge to do at this threshold level in terms of trying to figure out whether the description is sufficient to get you past it if i can answer in two steps just kagan first in the negative what the with the applicator patentee must do not do is simply describe the desired result that would take us back to state street that would simply say i claim a magic box that b more than the abstract idea itself that will be you can textual analysis based on the claims and specifications and file history and we know that some devices some method some programming will pass then it is not going to be a bright line rule and that's one of the the is the method had the examiner rejected it under section one of one the examiner said this is an abstract idea you can't have this patent and the only change that this applicant made was to add in the adjusting step electronic adjustment it put in one word electronic just in under state street which is what this patent prosecuted under that was enough because the result of adjusting run through computers not under current law that can't be  just can't get a patent over the line because this court said in miami and i'm going to put this like simply implementing a fundamental principle on a physical machine namely a computer is not a patentable application of that the courts in the p t o to use the standard essentially ratified bilski in mayo and said we agree with what you all are doing at the supreme court and the existing standards are good enough for us this is a judicial problem and that is a good reason  circuit that disagrees with mayo and has been resistant in applying it chief judge former chief judge michele filed a brief in this court essentially saying mayo is a life sciences case you should limit it to that because if you apply it to everything else that means patents are no good we submit is a technology neutral industry neutral exception neutral framework that can be used to answer all of these questions this is not the death of software patents the software industry is all before this court saying this is fine with us every company in the united states practically except for i b m is saying go ahead this will not affect software patents the justice ginsburg this court's precedents are clear they are unanimous they just need to be applied to suggest that there is confusion that needs to be patents that in fact could meet the test that you set forth but won't because they were written in a different time and sell used much more general language you're out of the applicator the patent holder would have the opportunity to institute a reexamination proceeding or some sort of administrative process to address that issue and second it should be noted this is a very small problem there are two million outstanding pads united states in the last four fiscal years there were twenty a group of patents justice kagan with way out at the tail end of the distribution most patents never have a one on one challenge this is not an issue with cotton gins and other things this is a problem for the most marginal most dubious most skeptical patents the ones that  generally mr chief justice inmate please the court an abstract idea does not become patent eligible merely by tacking on an instruction to use a computer to carry it out a computer makes a difference under section one hundred one when it imposes a meaningful on the patent claim that occurs when the claim is directed at improvement in computing technology or and in innovation that uses computing technology to improve other technological functions that's the test that we believe is most faithful to this court's precedents and bilski mail it keeps the patents within their traditional and appropriate domain and it is capable of being administered consistently by courts  yeah i would let me address software patents first because that i think is a obviously significant question and it's just not correct to say that our approach would make software patenting ineligible any software patent that improves the functioning of the computer technology is eligible any software patent that improves the the that is used to improve another technology is eligible for example the patent in the in the deer cases want to do we need to reach case well i think you can decide i think the answer to that question is no not necessarily you can decide it by saying that the answers the question of whether this is an abstract idea because this form of hedging is really no different than the form of minor issue in bilski and then mayo answers the question of whether the use of a computer in this case adds enough to the abstract idea beyond conventional steps because here all we have after all is just conventional use of computing technology no computer innovation such that you don't qualify under want to one you could take that approach but it is important to the united states that we get into our patent examiners that we get some clarity if we can and i think that the clarity could come from the test that i propose which i want to reiterate we could you go on with that because you were just getting to the point where i think you could say that computer improvement that in fact leads to an improvement in harvesting  an improvement through computer of technology so it paula files but then i think you are going to say i got this also from the breed a computer improvement that leads to an improvement in the methods of selling bonds over the telephone is not an improvement in technology reached by the computer am i right about the distinction you're making i don't think there's a yes or no answer to what do your best you know what is how do we deal with just that harvesting of cotton now you've got to do what you said was your second category which is an improvement through the computer of a technology and i thought in your brief you were distinguishing an improvement through the computer of a human activity that is not a technology and in particular to pick an example of that something in finance or something in business now am i right about the distinction you are up maybe five didn't pick it up would you say a few words about it to about let me go to bilski there in that i do think while certainly the court held that the term process got a natural construction which could include business methods seems to me that but that's not all that court said bilski the court also said that it was historically and traditionally quite rare that business methods were  useful tool and of course that direction seeing whether there is a technology application and of course the holding in bilski was that the method for hedging risk was in eligible because it was an abstract idea and i can't imagine that if in go ski that the claim had been exactly the same but it added use a computer to carry out some of the standard random analysis functions that are claimed by the patent that you would have found it to be patent eligible and i  submit to the court that the key point here i think is that now given where the court what the court is held in bill c given what it's held in mail the abstract ideas exception is really the only tool left to deal with what i what i think i fairly a process that doesn't involve improving the workings of a computer i think it's going to be difficult for me to do that i think for example if you had a business method a process for additional security you point of sale credit card transactions using particular encryption technology that might well be patent eligible is a technology that makes conduct the business more efficient or affected but there is a technological link here and we do think that's critical talk to our point of view with respect to that case and i and i and i do think remember that when we say something's not patent eligible we're not saying they can't do it we're saying they can't monopolize it and the concern in a situation like this one is that if this is patent eligible it's hard to see why for example the first person who came up with a frequent flyer program wouldn't have been able to claim a patent there because after all that's a business method for improving customer loyalty implemented on a computer in general i think you mentioned a while ago the need for greater priority and certainty in this area and i'm just wondering in your brain if you've got a non exhaustive list of factors to consider and there are six different ones and i'm just doubtful that that's going to bring about greater clarity and certainty i take i take the point mr chief justice but i think the key is that they are all directed to answering the question of whether the innovation that is claimed an innovation in the either a the improvement of the computer is functioning or be the use of computer technology to improve the functioning of another technological process in a case like dire would be in the latter category and so i do think that that's the key benchmark that's the baseline that's a test that we do think can be applied clearly and consistently by the courts or the trio and it avoids the risk of things like frequent flyer programs or the oakland a's moneyball methods for evaluating the contributions of individual baseball players make or any one of a host of other things that our intuitions tell us just don't belong in the patent system that's the drawing that line keeps them out not drawing that line lets them in and with all due respect i don't think that the novelty and non obviousness filters that want to and one of three really deal with that problem effectively because when you get to non obviousness in one of three for example you'll be asking a different question if you take the frequent flyer program you would say well is this innovation in building consumer world is something that would have been obvious to somebody who wants an airline it's totally divorced from the question of technology at that point and therefore i don't think you're going to get the screen that you need to get in order for the patent system to be confined to it define abstract an abstract concept as a claim that is not directed to a concrete innovation in technology science or the industrial arts towards that it's abstract in the sense that it is not a concrete innovation mr chief justice i'd just like to make a few points first of all with respect to the question you asked which is looking at one fifty nine and cetera all i can tell you is that if you look at claim thirty three it talks about matched orders matched orders and  described into eighty six into eighty seven and then spec specific reference to one fifty nine and that flow chart that's there and it's all designed as a package it's only one element of the kit of the invention but it is an essential element and it's an easy one to understand that it goes well beyond simply the notion of a hedge hedge against settlement risk and do it by a computer you're at the series is that his the appendix to his brief are the edition that the flow charts are not at issue in this case there's no basis for that statement your honor remember this went off on a very truncated litigation process so there's you know we we got cut off at the beginning of it there's been no there's no question and you know general burley could not have been any plainer in his statement of how he wants to interpret the abstract idea concept he wants to say no business no business but this is just another way of saying no business methods and that and you know the court rejected that  season me extraordinary to say congress didn't reject no business methods and one no one what we're going to do we're going to manipulate the judicial exception to accomplish precisely that same thing it seems to me that's wholly inappropriate are asked by my friend here you know what's his test in an answer that question you'll notice because he doesn't have an answer is basic argument is whatever you do just kill this patent and a foreign issues i suppose i take that same position i think what's absolutely clear is that the test ought to be one that is structured as a very coarse filter not the kind of filter that he's pushing for where it changes over time i mean i thought it was i thought his response to one of the questions about email and word processing that just a sort of my or asked is over time it would change well that's exactly what one of the two and one of the three or four that is not the purpose of the of section one hundred one and then he uses the example of encryption i guarantee you if we were arguing about encryption in this case he would say to me that that's an abstract principle because encryptions a concept that's been around since time immemorial george washington use it everybody has used encryption and the question again that's not the solution to these problems the question is how did we go about doing it and we go beyond the basics of simply saying use a computer and that's what we asked this court to focus on and to evaluate as to the frequent flyer program it's pretty clear to me that even though it was a novel idea in some sense the concept itself would have been viewed and in the chaos or fashion as quite obvious as a means of improving customer loyalty there are solutions here giving us one or one thank you thank you counsel the cases submitted