while there is one overlapping issue eligibility for covered business method review i'd like to begin this argument with the issue that's unique to this case which is the obviousness issue and if we decide against you on the obviousness we'll have to get to the c b m in this case is r we think that the c b s issue for one thing is significant for another overlap substantially with what you'll need to decide in the second case we don't how much you i know you want us to but i mean it resolves the case if we rule against you on  here for several reasons one is that you know what you're being asked to review under the e p a is whether the agency is acting in excess of its jurisdiction is a pure matter of statutory interpretation i'm a little confused are you asking us to denote review the acknowledge that it does have an expansive stroke not limited to banks and brokerage i don't think that that's necessarily true we relied very heavily embers on the boards comments during the notice and and the comment process and the rule making about this so it's not we didn't put the steps to a language out of context we looked at how the board looked at the legislative history and the like so we've already determined as a matter of law that it reaches beyond mere financial industry two responses to that she has one not in the form of regulation because the regulation simply copied the exact language at the statute the so called director's interpretation turns out to be warriors argument it is it's a mega don't give deference reviewing the board's application of or cited to this case i don't think so your honor for one thing the court in first thought it did not the last the expansive you know what in that case was picked up by the board but in this case court understand it for sata has not agreed that the board is interpreted ing the statute correctly in all respects and in particular the court the court oversight it has not of health the application of the so called incidental standard incidental to although to do that that's correct your honor that there is nothing in the statute that says incidental and my friends on the other side have not offered nor did the board offer any interpretation under the statutory text using the words used in practice administration amendment that would so this this case that we're talking about right now is involved that you are five at that that you have five patent is a method of prioritizing results from a search and it's not covered business method because this is something first of all that's not used by  people who provide financial products or services at all it's used by the network administrator and second of all it is not used to practice administer or advantage any product any financial product or service it most of it might be used by know the point that we've made we've also made an arbitrary and capricious point now something contrary to law is always arbitrary capricious but in particular here the board in another decision service now has expressly said that an that's correct your honor and we think that the court should clarify that that that the incidental the use of incidental as the standard in place the century language is wrong but even if it were right we would still win for the reason that know i in order to keep the patent you know we need my client needs to win them both you know so we need to proceed prevail in the i p r and also in the city of jambo but we think in the c p m you can decide it purely on the eligibility question because the board had no business reaching the merits of  order in limitation that appears nowhere in the prior i in order to get it out of the prior art of the word said first of all that it is disclosed india lets that's wrong i also said that it is disclosed by other over burger king and mcdonald's would be the closest result anyway the method has no application it only applies when mcdonald's needs to be bumped up in the list over burger king so the mcdonald's although farther away is  it in any event but i would urge the court to look in particular at the passage on a ten fifty three that the board said disclose you know teaches prioritizing address information it does no such thing that it gave  other options and then fifth sit you know fist in a in a string is kind of a last resort last resort for small lists it says use alphabetical order if no frequency or sequence pattern is obvious and as our submission that i've given question for me and that's it seems to me that other kids start when you're looking at a practical leave both of practical activity prioritizing results in alphabetical order or mirror to further further  off which expressly teaches for this combination which expressly teaches prioritising near or over farther and galas which we think both is in is in the opposite does not teach for there over near or under any reading and we don't think that it's alphabetizing teaching would location based services would have done exactly what prof and remy both thought which is to return nearer results before a farther away result and that with the innovation here is to is to you combine payment for placement get and allow me to explain the rojas there is no dispute that brewhouse discloses a geographical database that provides a service provider information upon the request of a subscriber and the only two to order the service provider less but the gap and grow hafiz for you have multiple service providers within a single geographic zone and if you turn to a fifteen leaves it open to the skilled artisan or the network administrator for out of order multiple service providers within a single geographic zone so if you turn to gail it's which is directed to  it gail it's recognised that in the future operating systems are going to be a much smaller devices that can be a person in the wallet and it talks about watering menus when you have a small screen density and it suggests that for small lists which is what you actually haven't broken off the use alphabetical order and it's much faster and easier way to do it when you apply that watering to the situation and broke off in frick five you have the ok need to turn to gail it's you order it alphabetically in the seventy six station comes first and in the diagram the seventy six stations further away from the b p station so when you actually combine the references you get the the needs a substantial evidence in the record on a question of obviousness that we f the whole lift is substantial evidence isn't that somewhat unfair to the other side in that kind of a case w setting aside the fairness your honor that is the standard but it's not unfair in any event it's it is specially with respect to pilot review it's not this court's job to look at these facts to for this court every time to look at these things in news so it's not unfair standard at all it's the correct standard so so the i think the confusion in the review so it went even though the board rejected that construction and that construction sets up an internally an internal inconsistency in the claim and that construction finds no support in the specification one and in fact when you peter nce to find written description support for this element it has to recognise that this is purely a result as the board recognised the learning clause as purely a clamp result and when you use proximity independent based ordering which the claim also requires one result is that the farther service provider can be ordered and will be ordered ahead of the nearest than supports the words determination that challenge claims are are obvious but i'm happy to answer any other questions of the panel might have in that regard conditional step that some other method is only performed when you have this pay for play you know situation but again that's in the art that's in hopkins and that you can enrich so to the or limitation in the specification is that one line that talks about prioritizing with the preferences of a of a service the one twelve it it's not but there are argument that there is even a claim construction issue here i think it implies that what you can still reach that and understand that argument without without addressing the cover business that that appeal through the two of five to the agency the responsibility for implementing this transitional program for cover business method patents that the senate have as a different case with respect to this particular issue if the agency although it didn't need to because c b s knowledgeability is a is a procedural rule the patent office nonetheless went through the full notice and comment room making for establishing the regulations related to review and in doing so it received numerous comments from from the bar and from law firms and from our corporations accept you're not saying oh you should narrow the scope of the f the commentary has to do with why don't you adopt a regulation they never did the regulation they adopted was verbatim the statute so they have no standing to claim any benefit from their regulation it's simply a printed version of the statute so that regulation is irrelevant i think arguably they get some benefit because they want their notice and comment are you trying to suggest that the comments and in the federal register apart from the regulation get some kind of deference no no i'm not suggesting you're not going to get very far because the regulation itself doesn't do anything but repeat the statue ok so i mean it confined to financial institutions i mean particularly in blue kill it we specifically cite that register language you're talking about in noting our definition right so so implicitly at least in both actually in all three of the cases  establish and it's consistent with the substantial deference language that the agency is accorded for cya is that the correct standard of review for looking at an agency decision in determining whether a pat establishment and implementation of the transitional post grant review proceeding it might have been helpful if the agency had used that authority to elaborate on it o because that's not what statutes do not at least since madison vs marburg that quote unfortunately is lifted out of context and not only by lawyers but occasionally by us but it's incorrect we have an verse out of we were very clear that it's a statute that were interpreted apparatus for performing data processing or other operations used in the practice administration or management of a financial product or service meaning a financial product or a financial service you're not suggesting that what's involved in this patent is a financial product that this is a patent for a financial product or financial service are you well this is and i assume you're were still talking about the two of five pat we haven't turned to the to the going to happen the next going to have the same issue when we get to that leave it right since we're into this one we can talk about it here so so this court i think resolved and in sight sound that the exchange of a good or a service for money off i'd say as a financial activity that according to the specification determined that the service providers really a proxy for a business business entity where that would make every service provider a proxy for business when everything here i think the two zero zero five and the cat that would be discussing next fall squarely within the type of patent that congress was concerned about when it implemented this transitional program we were concerned about finding the what they were concerned about right they weren't concerned about your patent were they well with this particular patent let's just turn back to the to the example that you used an example that would infringe  play system where burger king wants to be prioritized ahead of mcdonald's when you search for two fast food restaurants certainly there are business me that are out there and that's the nature of that but the so you have a line first sorry i just have one thing i mean i get that if that's the way the board characterize this you might have a better argument the problem is the board is has this incredibly arbitrary definition that anything incidental to a bank whatsoever is financial that could include a patent on a light bulb put in the lobby if this had been a patent for a business method to prioritize p m about this incident a language that's part of it but it even has because i mean you can you can get there two ways i mean if by incidental the board is really say anything at all related to a bank including the light bulb in the light in the somehow the board has gone beyond the statutory definition because it's on the on financial institutions haven't we already rejected i want to make actually clear just us we're not arguing for banks and brokerages definition we're not arguing for financial institutions definition results for your company by allowing you to pay for priority and so it's a business about that look you pay estan thousand dollars and if that you at the top that looks or you has a lot more than that i suspect and google that seems to me to be a business about no a business method you but the question is is it a finance does it involve the practice of illustration or management of a financial product or service now i don't think you have to agree with me for me to win this case but i'm going to say no it's not because that equates a financial product or service with a product or service that someone would pay money for their work that's an awful lot of things that's not consistent with the legislative history but it seems to me very indistinguishable from the pric was the same kind of thing it wasn't involving anything financial but it was here's will offer that you this will offer you a way to optimize price that this is will offer you this it's a way to optimize revenue stream so i'm not sure that that's right you're i mean because i think you're of you know a way of doing a transaction that might be a cover business method but having a product that you sell is not a financial product or service like that that deprives you know i get that maybe we're not on the same made about the example i mean it's not people just going out and selling the pricing algorithm it's the algorithm itself but if this is an algorithm that allows businesses to purchase higher access on a search to get more revenue that seems to me to be a business about  back to the obviousness issue because it is so important you know just playing i think brought out the standard of review and while we're not arguing with the standard of review i think that with the standard of review comes the important point that the board can only be sustained says that further over here is in the prior art and it's you know and so my friend saying that for either of your was not the critical imitation that's not what the board said they said that they said it's in the prior art and they cited a page of game it's ten fifty three that you will see does not in fact each prioritising address information in that way it just says put the address book for the city the city before the state and the state before the zip code that is not the same thing as prioritizing your over farther for they're over here or anything like that you need to sit