tree who is a member of the bar and is in good standing with the highest courts of virginia and the district of columbia i have knowledge of her credentials and then satisfied that she possesses the chambers and has been sick per in every possible way i could possibly ask and i regret that at this point she's leaving us but fortunately  are again fortunate to have a very good replacement for her but at the same time i think this is an appropriate occasion to swear her and so i moved her admission we're all on the same page you're doing eleven ninety four as a marriage case is not correct yes that's where we are on this one yes they're there with the two by understanding to combine time arguing together but we're leaning reaches the wrong substance or result on pound ability beginning with this court's jurisdiction such in three twenty nine the judicial review provision says that any party was dissatisfied with the board's final written decision under section three twenty eight to seek review in covered business methods under this provision and then argue with this is not a covered business method this court has authority to review the fact of the board exceeded its authority in issuing its final written decision authority congress did not give us we don't need to challenge the institution decision i don't it is enough that the final decision is something the board did not have authority to issue especially given the strong presumption of judicial review it's enough with this court h be read that way it told the court that nothing in the statutory scheme limits the reasons a party might be so dissatisfied and this could include the fact that the p t a be lacked the authority to issue a written determination rejecting for saddam's patent plans because  that doesn't help me anyway the question the first question we asked it as is what is a cover is method and the your invention fall within the sun that's an important question but there's a predicate question isn't there as to whether we can ask the question but now it's sort of the chicken and egg problem that is how do we ask the question until we know we can ask the question so i'm not sure what the right order is to take that question up and but let's let's assume hypothetically let's assume hypothetically that we think we ha statutory authority which under the c b i provision extends to claimants and the short little bit used in the financial product or service of the phrase financial product or service sector has an ordinary meaning in dodd frank for example they define the exact phrase to include things such as extending credit servicing loans real estate settlements deposit taking selling stored value instruments financial advisory says the services googling the terms reveals things like banking insurance credit advise investment management financials other financial services doesn't include software that helps to determine prices or calculators or spreadsheets before this case or th industry but has provided credit to me and that is a financial product or service so i would include that so it's not the financial sector but it is services and products we traditionally think of as financial products and services you can't just take the tour of financial and strip it away from the words products and services and i think that is the core of where the board went wrong with the board was that said well the term financial is an adjective simply means letting to monetary matters and inadequate it out with anything complimentary to financial activity and it may well be that when you are using the phrase financial activity that could include anything that involves the exchange of money buying a house you manage like to be buying a gun could be financial activity but a financial product or service when you think of  in order a meaning that doesn't include just purchasing a pack of gum that maybe you should do now because nih impression tell me this is wrong when i just was working its way through the system that the intention was to include the kinds of exactly what this was going actors bills canalis bilski is for example hedging hedging is clearly the type of financial or financial activity it involves traditional things that if you type in financial products and services being able to hedges or buy  securities or commodities all those things those investment type activities or whatever it is was a method to more efficiently ill with purchases on using credit card transactions and you know the slave thing or if it's a covered business method if it relates to the financial activity and it involves you know what we typically think of as a financial product or service then it's arguably within the c v s if it's a technological solution then it's excluded by definition but the one thing i can tell you is simply saying that involves a transfer of money can be enough because that just means all business transactions are covered and that's just not the meaning that the phrase financial products or services that anybody before this case ever ascribed to it what  derivatives it's a type of financial product when we're talking about the markets derivatives for example banking is traditionally considered a financial service you have a relation to the bank and cash a check to hold your money and pay you interest so the distinction between buying financial products a financial product you own and so this is purely on abortion that's a financial product financial services banking so that's the distinction between the two but the one thing that congress wasn't doing was when you go and buy a pack of gum that's automatically a financial product or service if selling a financial service to these companies that makes them work visually manage their victims and i think the short answer is that the ordinary meaning of financial product or service when you look at it is the traditional things like banking investment and things like that a software product for a spread exam like for example out to this hypothetical that if there was a program to automatically praise stocks and bonds and stuff like that and he sold this to consumers or to brokerage firms like things like that and said here's something that will make it much more easy and easily easy for you to advise your customers and choose among the most efficient and best and at the same kind of for some reason there's a whole these different  reason when this a pressure says it has to be used in the practice administration or management of a financial product or service that means doing things like calculating you know what value of an insurance policy how you manage a popular practice give how the but it's not a financial product or service because it was not what we all understand to be if you google those terms you're not going to come up with accounting software are going to come up with investment management advice banking through an e s b and then disagree with you on that and we think that s security use banking insurance credit real estate settlement all the things for example that are listed in dodd frank the one thing it isn't and the one thing i know is it isn't everything related to financial activity and that's what the  much weight at all on the other phrases in that statue the other phrases being performing data processing or other operations used in the practice price i would not you know for example say that in the practice of law i use something that affects price i do lots of things in practice practicing law by setting a price isn't part of my practice of law same thing is true when it comes to financial management or financial products or small sorts of things people do actuarily or go through for insurance for example or calculate for purposes of loans or do things to calculate hedging strategies for intermediate settlement they're all financial in nature in the sense of being  competitive market based on the nature of the claim and hand the financial strength of the client and then you came up with a way to do that through a data processing service and that's just a well known term that financial products and services you type them into google what does it say banking of insurance it says credit no one in till this case is ever a fund that finance anything with involving financial shows even if you're not in the financial sector you may have financial products or services you may use financial products or services so it's not just the sector the key point is when you put the word financial next to certain things it has a well understood meaning of financial products and services d technical logical problem at this court's earlier was part of decision recognizing the claims here do just that they make the process of computing prices faster and more efficient using less data there were computerized pricing engines before arms valid standard for the p t had but i'm applying are you i'm not leaving that argument i was not planning on addressing the argument lest the court had questions about it i was planning to move to the merits as judge newman suggested as opposed to the board's authority which was involved  the post grant review i just won and i think i understand the argument for greece but i want to be sure i want to know whether you will waiving that issue for whether that issue gets has to be decided because that also raises the same question of whether we can reach the question of whether in their institution decision they said the problem with your patent is it doesn't likely or not whatever raises it's not going to meet one on one you cannot review the initiation decision itself as you can only review the final decision and the final decision doesn't encompass a more probable or not analysis it just says this is not possible subject matter so that's what you would review you know whether or not the final decision was on an properly within their reach has been assessed by the need review all i would think that is and i don't think it would but in anybody's estimation be covered by that section three twenty four of the preclusion or review provision that we've been talking about earlier that is here because ours indicates that if you improve the functioning of the computer itself that should be patentable subject matter and that's precisely what these claims do as the court has recognized abstract ideas don't make the computer  much faster technique for production or a more accurate and less resource intensive technique for error correction in computers all these things make the computer run faster through software rather than changing the hardware in a huge swat technological progress that's today comes from not increases in the saw in the hardware but for making the software of the treasure general purpose computer into a specific purpose computer work faster and better there's no reason why innovation in that market should not be rewarded equally and protected by the patent laws just as much as innovations in the hardware itself you agree that if you have a business method that is a method that's more efficient and goes solution to an existing problem is just an problem was you had human too many tables too many queries and it resulted in too much difficulty maintaining things and the results were very slow and we revamped through a completely counter way to doing the word datasource which is construed to be a computer it doesn't really speak in terms of this is that these are methods for organizing data on a computer to make it work better it seems like it's methods for is clearly directed towards computer and the expert testified that you never would want to do this on anything but a computer and the reason for this is it's not just limited as you said towards the moons of storing the data using the hierarchical structure in the first place but you also have seventeen that or it seventeen is this is how to program a computer to do something like that or i think seven hundred twenty six and i know always with her grammar in the computer to do with that or we didn't touch a claim the two hundred thousand lines of code but  everything that's out there it is clearly directed to computer implementation in fact the board itself in its decision says this is directed to a computerized technique for so i don't think there's any other way to read it but even so if you take a look at steps fo movable wrong answers multiple writing just one you'll use ones you don't and then you have done other stuff as a result sorting figuring out which ones are where on the hierarchy and then finally you eliminate the ones you don't want that was a revolutionary contribution because counter file and none appeal ability by or for the first phase or the decision whether to institute with respect the culmination of the second phase the merits phase where you actually look at the pad ability of the claim before you that culminat what happens when the p t o makes a clearly wrong decision on whether to cover its initiation version i think all it's institution decision are only for the agency and there's no judicial review of those so if to concede judge hughes hypothetical case what do we do if the agency there are certain statutory provisions that that are prerequisites if you will or precondition us why who would want to ignore that particular requirement we realize that they are needed but this is an important case we're going to take it under review anyway and we will initiate and they initiate it and then it comes up here on final written decision is it the agencies who is it the government's view that if you come up with declare that variation no you can't say no matter how invalid that hand it might be we're going to let the patent owner keep it and its force against the public because we think there was an error and how p t o decided to initiate this process that's what we think section three happens to this whether that would be true in another case we don't we don't need to go there but what i'm reaching for and i think what judge hughes is reaching for the you've just written off a couple of centuries of doctrine called is congress is free to say i don't want discords dabbling in how we treat our staff and for many years that was their position that changed it which is just as well but that was not a problem for us that was a problem  congress now in this case what credibility now that you can tell us where wrong and how about if you made an error in even thinking you had a sardine to decide i think that's what three twenty four is addressed to it says that that decision whether to institute about and two minutes the only reason for justifying what seems to be very peculiar for the reasons is just plain has been mentioned but it also occurs to me that i haven't heard you say that rules then they shouldn't have jurisdiction and if we can get across this threshold complex so it is to figure out some pragmatic solution it would be very helpful to get me that's a perfectly sensible thing because that brings about extradition and consolidation of the issues however i thought i heard dr newman say that at the end you get to review everything but even if you didn't have three twenty four even that would be sensible and that would be the regime retired by the a p a you don't get to stop it and made it straight up resign but now the real question is not stop and nobody's asking the there's no issue here interlocutors review midway through the process the question before us is at the end of the process what issues remain to be reviewed and i understand you you would not need section three twenty four think it may be that we're arguing over whether that or clear enough or it may be that particular whether congress has the power to impose such a broad or all so absolutely no problem statutory constitutional any anywhere with congress doing that in fact hunger through teen lee does that that is what a judicial review bar does so i think the real question here is is that  jude in particular recognise that this in fact might be what congress meant they said three fourteen b which is identical in all relevant respects to three twenty four days might well preclude judicial review by any route now the court did not need to that because of course it did not have the four and a final written decision but that certainly is is we applaud the ball reading what they meant congressman to do and we think it is the right reading because there is no other reason for three struggled not just here for twenty years on your side of what the difference between substantive and procedural rules are but it seems to me that this is a particularly perplexing one because if you read it as this is the procedures by which he  doing our process that has to be within your own making authority however that relating authority so you have basically arguing that your position i take it that the old substance versus procedural line that where will you spend your time because i think having the initial examination was a routine reexamination when it was simpler now we have a system the supposed to substitute if it works the way the legislature has in mind for litigation cheaper faster conducted by actress more likely to come out right and then it's over and we know where we stand is the often taking the same position for gross reasonable interpretation additional reason why we need to use vi right in these new proceedings which is that the statute that typically contemplates the jointer of any other post issue is proceeding going on so if you have both a reexamination in which this court had already blessed the use of the even strange that exactly the same references and reasoning and everything else that you also wrote a procedure in the trial court and a procedure since you can act there you don't read a statute that explicitly give parties and ability to amend and say well we don't think that that is really a thing that by congress this provision for it so we are going to say that the teacher acted arbitrarily and capriciously and using the same amend most significantly just yes i and i want to know it's not at all strange that the ability to amend would be different when you and then just during initial examination that doesn't mean you have an issue and then just patent that means the pattern is still in examination as soon as the board looking at grants a patent grant the motion to amend that panic goes out the door so you might be a lot more careful in how you present motions to amend on and issue please the court we've had a lot of discussion about whether or not the three fifty patent is a covered business method and we've mentioned whether or not section one hundred one is a grounds for post grant review i'd like to just bring to the court's attention that the patent to waive those argument the claim makes the computer process faster or suggest that that changes the way the computer works it doesn't actually make the pricing maps happen that are those steps that the pet owner pointed out those four steps story and retrieving and sorting in a limb and aiding the data that was that that's the price calculation itself and so the computer doing the type the function even actually retrieving data was one of the functions that they looked at  this eligible well i think what the real question and i agree it's a very difficult question to answer in the supreme court had that's really a question the answer it would take a court decision you know i can give you an example  yes i would look at alter marshall is a good example where this court looked at a very detailed plain with eleven ordered steps and said even with all of these that this is an abstract idea and all the parties agree there was a computer and still it was just doing what computers do i do think there may be a line as you suggest between a business method with a computer tacked on and i think we have a whole line of cases they incorporate a good example where where that had been but i think that may be the thing that makes it a little easier to analyze this case in particular to look at the clinton cell which is what really matters for one on one and when you look at these claims they line up exactly with the type of claims analysis milter marshall an abstract method claims seventeen that could be performed with a pencil and paper performed it ourselves during the hearing at the p tab with the charts on a on a slide and then that nessa claims to have the track to be patentable and the rest of them added words like computer aided method or apparatus or processor and it's a sort of a quintessential business met the time that never should have issued under section one hundred one and that's really the board it's not even a close call really and i don't think that this court needs to go to the edge of software pen delivery or something to resolve  but it is definitely not a technological invention and i might use that as a segue to the covered business method question if this that's ok with the courts just like this case is not close to the edge of one of one it's not close to the edge of a covered business not that it is plainly the type of patent congress is talking about it was filed in the wake of the state's three bank case of the late ninety's early two thousand it had problems under one hundred one and it being in force against the public that the exactly the kind of pattern that congress is talking about when i had known or was making a distinction between maybe what your pricing that if you're pricing things you sell in the corner store that's not a business method but if you're pricing services or financial services well if you look at the brief if the patent it actually says that a product for the purposes of this invention can include products tangible products as well as intangible products such as services so the pricing mass that is being done by the planes in the three fifty lb can apply to services so even under that sort of interpretation of if it matters what your pricing which i don't think it does and i think if you look at what congress is talking about the legislative history talks about pricing real property appraising or pricing real property or personal products or services and the whole point of that is it makes your operations work better at obviously if your operations are more efficient it is saving but so in that sense it's a financial service but isn't that the kind of financial product or service being there to your because just because of that that's the company's finances or does it help them something more i think congress said that that the definition should be interpreted very broadly and just pleasure you not hundred that those are two different questions though it seems like you're taking the financial product service about a part this way as your opponent was taking it that way and well as i think one of the other  to the boundary i think if you read what congress was talking about when they wrote section eighteen the timeframe that the patent came out the problems with one zero one after bills this is exactly the type of patent they were talking about also the technological is a large swath of things the cons that congress carved out which is technological invention and they left it to the p t o to define technological inventions in the p t o did that and patent fails every prong of that test and i think that's further evidence that this is not sort of the outer boundaries case but a very clearly for example one of the prompted is there a novel non obvious technological feature look at claims seventeen what do you understand they mean by a technological whether the claims subject matter as a whole which cites a technological feature that used the same term to define it ok that is novel and is over the prior art and guess what solves the technical problem of using guess what a technical solution so as long as you don't need a definition of what a technical invention is that's a wonderful explanation so i think what they were getting at there is they're looking for  technology novelty in the technology some advance in technology and while they said it's not the same question as one on one i think there is some overlap there and they're true i think they're trying to be done as you said this is clearly a board found that there's not even a novel or non obvious feature in the claims when they insisted it they found every feature in these claims president prior art so whether any of the features of technological or not they're not there you made very nice arguments but meanwhile i don't want would override the prior decision in this record so i think this court decided that issue in for the any and which is not the issue here which is that as long as there is something still alive in the district court proceeding a patent a final good example sure i think congress actually problem went through i went through twice yes i think congress actually spoke to this there was in the inner parties re examine the statute a limitation there was a specific to stop all that would apply  accused the printer goes to the patent office and challenges it there to you know we have the or the reverse of the situation here happens and that is the district we're fine with patent invalid and unenfor totally independent and no one can figure it out i think that i think for the covered business that it much more limited situation and i think it is this is an example of it working just and it showed that the cover did that the aides working as it should be covered business i think under for then he has as long as that first case is still alive there can be in effect but that's not the issue here for starters argument that you couldn't file the police can't review petition after a final judgment and this court law and re examine the fact that say you know what we're not going to require the respect paid is for a judge well i don't think that's the case but here congress has talked about the coordination between these post grant proceedings of the patent interpretation the claim to be invalid and under section one a one you don't need claim constructions i would say that the court doesn't need to reach that issue here ok thank you  sankey beginning with this court's jurisdiction i think the courts recognize the enormous consequences of the p t o s argument that this court has no authority to review whether or not the board has altered virus if the p t o were correct then the for example subject every patent to post memory of notwithstanding the nine month limitation period i deem each and every one of them a covered business method and this court would be powerless to do anything about it never before has the  some other like error going to the heart of administrative determination stands exactly this does the agency had statutory authority over these patents are the c p m patterns does extend to section one hundred one does it extend notwithstanding claim preclusion those are issues that this court has authority to review if i could turn just for a moment to waiver since it came up with you there is no waiver here because we had no  one for claim seventeen twenty six or twenty nine point two section one and two for claims twenty seven to twelve twenty seven twenty six twenty nine there is no authorization in that war for us to address the board's authority in the c b s proceedings the trial stage rest aapl yet can we have argument that you have no right to make at that stage of the proceedings and the peaches trial and what makes it especially clear it says any claim or vishy will not include the authorization for you will not be part of the trial the terms of the jurisdiction this court wouldn't be surprise for us if you could review the the ultra virus of actions by the board at the end of the day has to be the facts right off the cost one not initiation decisions not institution decisions eight so those become unreviewable by virtue of three twenty four the another thing that has the effect of if for some reason the grounds that you say were error for initiation sort of get washed away it was absolutely clear that it wasn't at the time the issue was a good decision was issued because of the record for example but the record later improves and the final decision there is enough evidence there you can say well they should have an issue in the first place for the record wasn't good enough you seven years of litigation and a final district court judgement in this case this action was brought in effort to overturn that judgment that the district had reached final judgment and nobody in the board never disputed that that ha the day is over anything you could have raised or did raise is done and the board saw of course so given that the reason cooperates and acted this provisional is actually allow the party against the inference that was being alleged to go to the p t o exact same products that issue because the basis for their standing to sue us for bringing in rather the c p m action and petition for it is the fact that we sue them for infringement based on specific products so it is exactly and decide to think that we're employing argument on why regulations may arise from play claim preclusion the sole basis and under generally this is the only thing the court can review one was it wasn't sufficiently final because it was on appeal that's the only basis the board gave for saying there's no claim of only one but that is clearly wrong absolutely foreclosed rationale for rejecting client privilege under channeling this court can affirm an alternative basis it can only affirm on the basis given by the board itself is entitled to the view review view of the p t o as an the second way is to program the better come up with a different way of doing it and so the computer for terms of results past there is no reason in the past no reason whatsoever in down oz of nature that we would prefer to the fact that you can