good morning honest with the gist of this appeal is threefold first your reserve is reserving three minutes right correct wrong and no one skilled in the art would understand whether or not there was an infringement in this because it is an abstract concept couched in computer language which is conventional there's nothing additional to the conventional language that's there other than the indefinite term look and feel and third because there was no substantial evidence to support the jury's finding or a verdict of infringement i'll be more specific the principle reason that one skilled in the art cannot determine what is an infringement is that the claims are indefinite we all know that the claims of the patent must define the meets and bounds of the invention in this case the term look and feel more visually perceptible elements does not define any needs and bounds there is no drawing in this patent on like perhaps in other cases where the claims are found definite that would describe what it is that's covered by the claims there is no description in the specification which would tell you how you know whether two websites have the same look and feel i think if you know in the abstract where to look and feel sounds kind of impressionistic but in this particular field when it comes to graphical user interfaces when design layouts isn't the term look and feel a term of art well the term is used by computer people in of sort of fuzzy way if there's no real objective standards or to the extent that there are objective standards to determine whether something has the will can feel of something else those objective standards are not in this  familiar with the term look and feel right i think your honor that the answer is one may have heard that term when they were around said thirty years to write one has used that term but in the practical application in this case with i think nine eight or nine websites of having a substantially matching full field but at trial they dropped some of them and they added others so that the ones that were found to have by the jury to have a look and feel similar to a host website and the ones that were not presented to the jury so there's no distinction between all of the  websites run on a common platform and they all use the same computer code and yet some were presented to the jury and others were dropped there's no distinction between those in terms of what what is similar and what isn't similar plaintiffs choices of what they want to accuse of infringement i don't know how that plays into the equation of what one of ordinary skill in the art with understand the claim term to mean yes i think look at the claims in the specification the prosecution history perhaps how the prior art was using the term i think we can look at all of those but there is nothing in the specification which tells you how you know what the will can feel might be there is no if nothing in there on vacation identify a series of look and feel elements that are in fact consistent with what you imagine the overall look and feel to be well what they say what they do is they give you a list of four or five things only two of which were even mentioned the trial th the the trademark and the color and so what it comes down to is that if you use someone else's brand someone else's trademark on your website under a license under their definition you would automatically have the same look and feel i don't know if that's right though i thought the distinguished prior art reference during the prosecution where they were saying a logo  itself with that was the only thing that got transferred over onto the composite web page that wouldn't quite make the grade for being capturing the look and feel well frank what that that's maybe that may have been what they said in the prosecution but that isn't what happened at trial but that deckard of the intrinsic evidence right but the part of the intrinsic evidence your honor is also the prior art and the prior art that was described in great detail at the trial was by our codefendant digital river which had a digital frontier's website and that website had not only the logo but also the navigation buttons so it had the same elements that they are saying is a look and feel the police have tried to distinguish seventy two unchanged sixty one seventy one look pretty interesting i think it was seven years that the host web sites and on and navigation bar all made it over but the test came down to at the trial i know what when i see it there was no one who was an expert on the subject of consumer perception so how is the jury to determine whether a concept is concrete and definite or whether it's just abstract and covers anything the fact that i keep coming back to is the fact that the plaintiff kept changing its own position shows that they didn't know what was covered by their claims and what was on their expert report at three websites and at priceline united airlines and us air they dropped two weeks before trial the us air and united airlines website and then added six or seven more you stipulated to a claim construction here for look and feel right there was a coin construction which just copied the words out of the spec we reserve the right at that point construction it was in the order we reserve the right to object to continue to object that the claims were indefinite under section one twelve their words but they didn't they don't describe anything objectively in terms of what could be constituted a same look and feel or not there's there's one other point here too it doesn't just say look and feel or visually perceptible coleman says based on or corresponding to or derived from a host website look and feel that makes it even more abstract and even more indefinite because it doesn't have to be the same it just has to be based on what you are going uphill of we didn't argue that but the words are there they were they were not part that what's your best articulation of the underlying abstract and i think our best articulation and you know in all frankness that's an issue which is very contentious in the in the court system but i think our best  our best argument is that it's a conventional computer system operating in a conventional way with no meaningful limitations or technical distinctions all that is if you strip away first we have concept which is having a wealthy feel similar to a host website from the remainder of the coin the language just talks about conventional elements of a computer a computer a processor a storage a display doing nothing other than what those omens ordinarily do and of the only thing that's added is having a look and feel similar to a host website this is not a look and feel that's a pain buy if there is any way to define it it's not obtained by some capturing method which is what's described in this patent which was that what their original patent was directed to the patents and suter continuations the original patent was dropped from the case at the charlie reports from federal circuit case would you say that the facts of this case are most likely when i look back that a lot of our court's authority a lot of those cases seem to be more kind of business method oriented you know method of handling a loan application for a car purchase or a method of deferring tax liability through some kind of real estate investment tool or some method of hedging risk and and then maybe the claims went on that on a computer here there seems to be something a little more technical in nature going on which is where we're at maybe those cases one of ordinary and in using them together to create a composite what age no that's not what happens here what happens here and i agree with you that most of the cases do go off on that but what happens here is that we have a store we have a memory and in that memory there are a number of pieces of artwork representing different host web sites of one sort or there and then ninety percent of the content is supplied by our  client who who sells cruises and all they do is use the brand name and perhaps some part of the coloration from your in your times to isn't seen ok i'll answer the spanish just answer i m anything other than what we did manually before just to sum up your honors our position is that these points are not objective their subjective and therefore cannot meet the test of one twelve they claim an abstract refer to digital rivers anticipation arguments they didn't preserve it be lovely thereby making any kind of game all or motion they did not also appeal the game all against them that we entered on the was and as we briefed in connection with digital river is that the the look and feel of the prior art sites they just simply didn't correspond and overall appearance which was the test stablished by the agreed upon claim construction the jury saw ample evidence of the sites and concluded that the the websites did not correspond there were other more subtle differences but that was the one that hopping about on the it was a pretty simple overall look and feel and you know there weren't twenty different elements it was pretty simple straightforward clean and it made it to the composite web page the  the best one do you remember was that the digital friends here when you're under your digital front here are the two sites that were in digital frontiers of advertis also talked about how it's all about preserving the look and feel of the host website there were a number of statements about the attempt to to match look and feel but the overall appearance did not correspond that's what the jury concluded after considering the pages and comparing the overall appearance is you have to be careful also that the web sites that was in fact the host web site you're looking at as opposed to internal pages that looked the same but the there were there were buttons but they didn't look similar there were a number of trial there was evidence of  which of certain differences between the sites that were presented to the jury by the experts and and in cross examination of digital river as witnesses you know there's a lot of different examples and maybe preserving look and feel so that you are selling environments on your host web page and so that it seamlessly looks like the customer is still on your website it says all those words the advertisement i recall that there were some discussions about that and what digital river claimed to be doing and some of the purposes did indicate some similarities but the this court is here to review appeal judgments and this issue was not appealed by this defendant and the jury found they had a different opinion than that is entitled to respect as long as what they've seen is a is some is some evidence of a difference i don't think the on the question of whether the claims are sufficiently definite which is an issue on appeal the jury didn't have any trouble reaching or we don't have any trouble assigning to juries the responsibility for deciding whether well and what did what it there was transferring the logo the navigation bar in the font from those webpage over to the new composite web page that it would be enough with the overall appearance of the website correspondent and it's not an issue of counting elements it's looking at the overall correspondence and we know that the this court's previous jurisprudence allows juries to assess to determine such things as whether as in the star two case there was a controlled environment to curing tobacco and by the way the specification there didn't have specific standards of humidity temperature or flo we know that assigning to juries the question of wholistic similarity of appearance is not beyond your e competence because we assign that question in every single design patent case  and this particular claim in a limitation who is in the design true but this particular claim limitation is identical to the tests for infringement of each one of the quarter million design out there that would be litigated the day demise case discussed which was cited in reply by w th rejected an argument that the term esthetically pleasing should be don't know i mean i think that the court has you better come up with some things well i think it's the double hit with all due respect to his that seventy ages verdant to identify an abstract idea that they think this doesn't go beyond the the re is lost and certainly saying that the abstract idea you know every claim can be turned into it it is just into an abstract idea in some to have websites that are linked in such a way that you could have that you had a similar look and feel from the two websites and yet the user would have a comfort in making a commercial transaction on an outsource website and their specific technology in order to do this assess marketing materials and say other inventions that use the same language of trying to accomplish the the abstract result and in what digital river didn't do was link the websites in such a way that the look and feel would correspond over in conventional websites they look the same regardless of where you reach them depending on without regard to what source page there is and they don't require the operator to give a special u r l to link to them you know because in our three nine i pad for example we require recognizing is the source web page the the one of the first web page on which the link has been activated and these are not conventional in in  websites this is assuming there was any record on it in the record below is the w t h argue that there were not infringing alternatives among those are alternatives that digital river  what we showed the jury was a digital the digital river alternatives that were done and in advance were were in fact not within the scope of the claims hence not infringing alternatives but in addition there was evidence that  h itself introduced through its expert about a notion of passing data to a host that without linking to to a page and so he or periodically passing data to a hosts web page so you could have the same concept of of the corresponding look and feel in many ways that are not covered by this patent under any preemption analysis under any of the opinions in c l s bank either preemption or whatever the we're talking about a claims that undisputedly past the machine or transformation test there's been no and that all those print court said that that is not the only test they ski case also called an important clue in patentability  here and then the the second key to the supreme court more generally when you look at the at the categories of cases that they seem to be concerned about aside from the issue of preemption it seems to be merely using a generic computer to automate routine manual tasks that although dummy teach argues that's the case there is no evidence of that and the claims themselves have limitations that belied that that argument and so i don't think under any of the tests of patentability likely to appear or presently existing that we have provide supplemental briefing of the court a question but the i think that in c l s bank there isn't a real test out there on you know right now and so i guess it might be prudent to wait for c l s bank on the i want to but that's probably only two months anyway so i'm not sure if it makes any any event because that was dealing about a case where the question was whether the claim was capable of being construed here we have an issue of different sorts which is more of the data mines area and data my is called if i may i will answer the question that judge chan asked and that is yes i think this court should await the decisions and biasing and sealers bank perhaps they will clarify the law perhaps they will not but at least will know what what kind of argument the nose of wax being in order to distinguish over those digital frontiers and other digital river prior art they said that isn't the real look and feel that's just a fake look and feel it's only partial can feel and yet to include to allege infringement by by us as well as other defendants they took the position that any use of the logo and maybe some part of the color is sufficient and there's no distinction between us that we can let litigation positions influence how we're going to understand the claim and figure out whether that your honor i don't think we're abstract i don't think that you could just look at these claims in a vacuum you have to look at the way they're being interpreted there they're being stretched to an extent that was never contemplated in the original patent application but that's past due to the interpretation right it's a question of all it's a question of law for you to do the interpretation but i think that the fact that the  plaintiff itself has had such a changing position as to what the meaning of these claims is that one cannot determine what they mean or however stracke they are you you have to have some guidance you can't just look at the case in  context just the way a jury cannot be asked to decide what is substantially matching which is not even a term patent what song we had of looking at the claim this way we have a lot of inventions that we patterned where it's based on taking elements from one source taking elements from another source and creating some kind of composite from the elements from the two sources and that's maybe what we have here we  have elements from one web page the host web site some elements or content from another website and and then bringing them together merging them together into a composite web page and then beyond that the claim actually calls for how you would achieve that by presenting a link that can be activated on the home web site the host web site and when you click on that then from there you take  the elements that are stored in the database you combine that with the content from the activated link and you create your composite web page i mean i don't know if that's an abstract idea it is an abstract idea because the  elements that are stored are simply artwork and what's on our client server is the content so all they did is put the content which they have a trademark license to use on top of the content and that