conventional and well understood and that was a debate about how the how of the prior art devices how the commercially available devices how they worked and how they were transferred to this context and the other side call obviousness context there are questions as to whether a person of ordinary skill in the art might find a particular source to evade the event and novel or novel work provided a motivation to come by and just like in the obvious this context with or with and i have to say that having looked at the various portions of the records that pertain to the issue of waiver i'm hard pressed to see why there isn't a waiver here and particularly starting with the joint pretrial memorandum statement that's made is the parties agree that the question of invalidity under thirty five u s c section one is like question a question of a lot to be decided by the court to the extent the court elects to have the jury decide the underlying factual issues the parties submit proposed special ed ruscha george but that sounds like what the parties are saying is this is a question of law if judge you decide to submit these questions in effect to an extent the court does that that the primary promise was yes you can decide this is a question of why but and i realize the phrasing isn't exactly that phrasing leads to your question about it as elects to look i think what the parties were getting the one that caught my eye out yes i agree with you the word alexis is tough there but i think what they're getting at when you look at everything in context going to point to a few things that support my reading that what they're trying to get at is look this is primarily a question of law but court to the en he says it's an issue for me in any event so i think you're right it's somewhat distracting to the jury to predict inject that issue into the case this is the point in time where it seems to me unless i'm mistaken that the court has  and so your honor by bringing the judgment as a matter of law motion as was reemphasizing its right to have the jury decide that question but then if i can turn you to another page a little farther on and sixteen six seventy agreed upon as a question of law you go down to the last sentence in that paragraph as such section one hundred one is an issue for the court to resolve now in the first instance as both the finder of fact and the arbiter of law again it's very let me put it this way if i were a district judge wright and i had each of these pieces of advocacy before me i would assume that you had waived your right to a jury would not i would not be reasonable in drawing that conclusion i understand that your honor let me give a couple pieces of explanation in context for the statement so this was after ask the judge said i'm not going to send it to the jury we have the jury trial its may cast has made its game on th that should warn our favor or send it to the jury the jury verdict comes out now afterward the only way that casket prevail on section one hundred one is for the district court to do it so it's in this context of this post trial most and where the judge is now going to decide any legal and factual issues it has as making the observation that lot for us to win you are the decider at this point so rule in our favor what i would point you to the show that has not been waved through that perhaps when appellate counsel got involved you decided this was an issue that you might have done well too afraid for the district court isn't that a little later well your honor i think if you add up the three pieces of evidence the fact that we provide the special proposed  on the factual questions to we move for a game all right before the jury retired to say look judge either decide this as a matter of law or send it to the jury and then three after the court decided that it was going to do it and rendered its opinion said look in your opinion you rely you didn't just decide this as a matter of law you relied on the trial of the dence you made factual findings on that routine well understood theory in light of that right at the had just decided it after trial as a matter of law and there were no factual issues involved then your honor i don't think our new trial of this new trial version would have been appropriate because as that claim construction right and it has almost the identical sort of quote underlying fact issues that claim construction has would you be suggesting that you think indefiniteness has to go to a jury if someone asks for a jury trial on that issue you know your  to seventeen eighty seven and decide whether there was an out and out analogous cause of action in english common law i don't think that we sort of make it up by analogy do we were deciding this constitutional issue my understanding of some of the men th lines right is this something especially when you get to the step two type inquiry have you gotten to something that's beyond conventional routine or well understood in applying it to the natural law concept so willing if you go back and defenses as a set forth and that lax then what would be the reason to treat section one away differently especially in a post alice my old world where you have these underlying facts or questions that could if one of the questions that's look up table yet to get oral equivalent correct all right and the internal body temperature being the temperature under the skin and directly below the point that's being  all of what you just said your honor is an undisputed there's unrebutted evidence that that's what the jews products here do they have to look up table they take skin temperature and they have a look up table that year two or all of quibbling temperature directly they compute the oral equivalent temperature they at no time attempt to compute that internal body temperature and this is not your honor a doctrine of equivalence case or word or a case where you can say oh well maybe they come to the same on that where they tried that same argument that they were a little and temperature and internal temperature of one in the same in this court rejected it but beyond that it's even in their work even if you assume that it coincidentally did map somewhere and that it fel within the claim construction still that the temperature did somewhere matt we don't think that would work and the reason is just what is because to be literal infringement actually has to be computing that temperature again the look up table computes the whirlpool and temperature second point i would make is and the reason we only bring the non infringement version with respect to the six eighty five and not the nine thirty eight is critical because the nine thirty eight doesn't just say compute in internal fighting temperature it's as compute the body temperature approximation and if that was the late which in this is the reason we didn't bring the same argument with respect to that well then maybe their argument to get around that surgeon view wal mart would work a little somewhere in the body between the skin and the heart you're going to come to that temperature without the three temperature approximation language that in the night thirty eight patent claims that are not in the six eighty five patent things would more precisely require computing intra by factor that's why we think the fact that it  problems the specification identifies these problems finding the temporal artery or an artery and cooling of the skim caused by the thermometer itself and the patent specifically ties to it's not just any scan but generally horizontally and the cross the floor had was all the way across the forehead so it's a very specific method and this method is not required by any of that  laws or natural phenomenon that relate to the temporal artery itself or heat balance equation do you agree that the the equation is a natural law ye equation you have to demonstrate that there's something more that's not routine in conventional right wing if it's directed at that that's correct but the question is for these particular claims not claims that were brought to this court for but these particular claims aimed at this particular limitation and these particular limitations these are the beginnings of the method in the other case i have a really hard time distinguishing this case from area  i mean there i mean you have a somewhat novel idea a very novel idea i think that was pretty revolutionary but we still found it unpatentable because all it did was make a discovery of and of the use of the natural law and then employ arrays chain reaction be a sequence with a pick crow i mean it was more details but it was just different methods of detecting why isn't your device just using conventional methods of detecting  gets is it running out across the forehead it's running it across the floor it's the combination of the of the limitations which are different in the various different claims but yes in one of the claims it's running at generally horizontally all  across the forehead and at the same time getting the peak from multiple what is a real times person and measuring multiple times per second conventional as well doesn't your prior device do exactly that there is a prior art device that for a different purpose for the purpose of finding injuries on the body and making differential determinations not for body temperature can have a mode where it scans there's no evidence that was ever done at the forehead or in that particular lateral direction or all the way across the forehead there's also no evidence that it was routinely used that it was well understood by those foreigners skill in the art or that it was well aware that it was conventional and the language in mayo was very specific when it talks about well understood routine in conventional sure those the language of mayo is also very specific about what it needs to do under step two and it has to do significantly reading more than just conventional detection methods and employing a lot of nature and i find it very hard to think that running something across the forehead is substantially more well look if it's never been done your honor never been done and never been done to saul it's never been done it's true an  of well understood well understood doesn't just mean in the prior art conventional doesn't just mean it happened before and routine doesn't mean it doesn't just mean it happened a few times the  supreme court and mayo always tell i understand why you want to argue mayo but we have to follow aereo said to you and i don't understand how we can possibly affirm eligibility finding in this case when we didn't it was it was agreed upon that it was well understood routine and conventional it was no dispute about that at all in this case the district court found or determined that there was it fight well understood conventional ad that's because the evidence in this case did not show that for example it has this expert was not even asked that question and when you asked a question of well understood routine conventional you're asking it with respect to a specific audience which is what mayo said which is well understood by whom was there any evidence about how this was understood by those who are in or skill in the art or people who took temperatures are people who language in mayo makes clear that actually matters this is not just a question of whether a single limitation or two or three or four limitations are in the prior art it's a question of what was seen to be how this was seen by those of ordinary skill or what is it your view that needs to be for in order for something to be deemed not to satisfy step two what is it that needs to be conventional and take it with respect to the facts of this case yes in this case it comes down to the not we're not going to look at the formula at all so all we're looking at is technology works but instead they had a different way of analyzing basically relating the data and this case is very very similar to that and it's also similar to the deer which process that at right at a specific place that's very similar to this case because we're taking temperature measurements using nothing special but we are using a specific method with specific steps to solve problems and these problems are not problems that are required to be solved by the natural law on phenomena like can i ask you about infringement of the sixty five yes why isn't it the case that the excuse devices which compute the oral equivalent using presumably a special look up table and are doing something other than computing the internal body temperature where into our body internal body temperature has been construed to mean the temperature of the portion of the body between the skin above the temporal artery and the artery they're they're not they're not computing oral equivalent they're computing an internal body temperature and then reporting that out to the consumer as an oral equivalent and the evidence that is  expert tested all of these devices and in testing the devices determine that they take a temperature here across the forehead it's cool because heat is being lost to the environment affects being lost being higher it would seem to me is it not just not enough it has to be the higher temperature that that is in fact the internal body temperature as defined by the clay and that's exactly what it dots because the heat flow path doesn't even go into the mouth everybody agreed upon that heat flow path goes up in the part that we care about is in the forehead right but if they have a suppose that you've got a look up table in the device your claim which tells you what the temperature is below the skin and they've got a look up table that shows what they are looking for which is aural equivalent and those if those two look up tables are different is there infringement well there's no evidence or to look at tables or them being different the and the evidence that we're relying upon is not the look up table evidence the evidence for a long time is the fact that a higher temperature support regardless of whether it is something that is designed to reflect the temperature of some other part of the body entirely and they're saying it's designed to reflect the equivalent of the oral equivalent temperature is going trial about this and it was agreed upon by both experts that heat flow flows up in a specific path not all over the body in this case but a specific path up through the arteries into the flow does not go along that path to the mouth and both experts agreed upon this so with we are reporting a higher temperature it must be along that heat flow path and other claims in the one three eight talk about flow method they don't talk about eternal by temperature but it's all related the science of it the natural phenomena if you will is that the heat flows up through the t infringement this is the first time i've heard not in the trial record not in their appeal brief that the lookup table could be different that might be the say there undisputedly different they have different variables or all of quibbling versus core infernal body temperature undisputed under of unit testimony that the accused advices use an oral approval or look up table while they are devices use the heap balance equation that's claimed in their push the question is not what the it never been done before to do measurements it to compute measurements that it never been taken before he turned skin temperature measurements have been taken since the dawn of time and in particular their own accused devices have taken precisely the skin measurements they've take and use a peak detection there bomber and this is disclosed based on their own specification i have to go beyond their specification it does speak temperature it does multiple readings per second that's both dermott temp and  in one piece of prior art that isn't even taking the temperature ok suppose that i assume that there is some evidence on the other side short so now what is the standard of review that i use to adjudicate on appeal this question well i so whether you want to apply clear error or another standard of review i think you come out the same this then falls back into our jury question the reason we think if you disagree with me and think that there are that this turns out a disputed question that i think that it does fall back into the jury question you can't just rely on clear air because a jury should have resolved those factual disputes but the key point i would make on the on the question about that you're the mother and