artistic judgement versus rules as if they were following rules then and if you have a greater challenges and we're just putting human activity away then i don't believe the specification goes and explains how can an artist move through and use form l we really think we should produce more for the l a little bit so it's not fully put up to do it in fact we go from one twenty point three point seven point zero to one twenty point one point five it's simply not how the process works the computerized process the method we claim here is a higher level difference and it's different for a reason it's different because it allows the computer to ripley's that judgment and the results are actually somewhat different the human being comes out for slightly more artistic that it comes out with it doesn't it's not as uniform but it is a higher quality result and it's not just the application of rules here and specific rules that lead to this result we've if you look at the claim it has not there's an idea of everything it can't be that so how do we decide whether this production of a physical thing in fact a moving physical thing is directed to an abstract idea or merely has one of those in it because at least under some of his some rule might be abstracted right i think your honor even a snow guide and when you are producing a physical object and you're actually showing production process to make something different it's very hard to find an abstract idea and i think when the district court said look this doesn't appear to be announced and they industrial process to cure level to make it come out more precise and you have lots of different steps in the process and the fact that you haven't used the computer and calculations that one step doesn't make in the abstract idea on the other hand what you're there that has been affected i think that the fact that is part of the industrial technological process tends to suggest to us that this is step one you just you're done with the air and i think that's true and here i think it's also true here what appears on our speaking with clearly the district court in this case in making this particular decision stripped out all of the elements of the claims that that he deemed were covered by prior or is that legal there and if so i will quietly what's the big obey sure sure i think it is legal error because step one simply ask the question of what is the underlying abstract idea when you idea i don't think were directed of abstract idea here i think in the district it's just that description the idea is very concrete it didn't capture the whole invention but when you're a step too you do back out everything that's purely conventional as a reason for that the court stuff that you're looking at is truly conventional you don't look at in isolation but you go back and look at the poker combination of all the stops and you ask is that combination novel is at least a point of novelty and should tick him off it is an invent concept that adds something more than what the underlying abstract idea here i guess my question is a section where no one analysis is a district court required to to consider the claims as a whole absolute i think  here and if you do that and you don't strictly nor all the critical limitations you see if there is a huge number of inventive concepts here and i'm not talking about just the use of rules in a particular type of rule that is rules based sequence what sound is near and adjacent to what sound or rules based on timing the funny of sequence how fast that sequence it's also the way that it applies those rules it's what it produces using those rules difference between what was added to the to the existing technology was well done now a lot i'm not i'm not saying it that's not enough but i think the difference in the quality of the out that i'm also struggling with the idea of when is something what is a claim directed to an abstract idea what does that mean and we have a couple different things like i that california institute case said you look at what is the purpose of perhaps really concrete and if you add to that what's actually in the claims then it becomes clear by the time you get to step two that well beyond even whatever that might be if you want to call that an abstract idea i think it's critical i want to go to the if i may place the cork i want to start by talking about the abstract idea here the abstract idea is using the rules to automate the conventional process of lip sync using more targets the the claims and the specification are consistent that what the invention can they can ask you this and i guess it's a it's a version of the other side's automatic pilot example or i've always thought about the facial recognition example i have no idea what's going on inside my brain when i recognize your face and it seems to me a kind of unbelievably  e invention for somebody to figure out a system of rules that would allow a computer to automate that process so what is different here from that or do you want to contest the premise no i agree with that premise that this is fundamentally different and here's why in the case of an auto pilot or facial recognition if someone were to come forward and say here is how we do it here are the rules that you would apply and apply those rules then i think we're falling into the subject matter what this patent is directed to and what these claims capture is the idea of using alls without providing any more specificity they are essentially taking an auto pilot and saying a plane automatically using rules that consider conditions and timing that would be the clay that itself is the idea of autopilot but doesn't actually contribute anything to the art because lots of people probably think  have been nice if i could use a computer to do this for me faster more efficiently or whatever that is not patentable subject matter but i'm on the assumption that one of the possible claim constructions here and i guess we don't have clean constructions is the actual production of you know the right kind of visual image one that's moving and you know looks pretty cool and on the assumption that the specification enables production of that then the analogy in your autopilot example is a patent that says use auto pilot and the specification has a whole lot of specific rules that in fact enables the plane to fly without a on the right or whatever it's called the problem they're on or it is is that there's a mismatch between enablement and second one o one because of the scope of these claims so i would agree with you that if the claims were directed to  and the scope of that was fully enabled by examples in the specification then we might have a different situation the problem we have is that the claims seek to capture the idea of using rules and if you're going to claim the idea of using rules generically recollects let's assume now that there is a possible set of claim constructions that substantially narrows the kinds of rules in some of the ways that can describe fair enough runner so there's two responses that the first response is of course that was an argument that was never presented below and so i think to the extent that we have the sort of create where claim instruction has we went through the zero nine of the appendix and we went through a full plate contraction process before judge will let the district court and the limitation set of rules was contested between the parties and was construe than signal processing right and there's a question about signal dependent noise and correlated noise and those added something like you know pretty significant to just a bunch of you know read had readings of the mad magnetic area and it added something in fact quite dramatic to say what you're doing what you're finding depends on what came before and what came after so it's just not right that the word sequence doesn't necessarily mean more than one darn thing after the next while you're on i think that might be true in that case in this frames and then interplay between them that generates an intermediate stream and then you would interplay further to get to the final stream the sequence is simply the order in which the phonemes appear even in the current version of the claim construction position which was never advocated below there's no identification of some secret sauce to sequence the changes there and where and when you say never advocated are you putting aside or including what i guess i'm remembering from their great brief maybe an oral argument passage where he said it actually matters what the previous phoneme was the i think the difference is your honor when i say that i mean they never advocate for a particular claim construction i agree that at the one on one hearing by the time things evolved they raise the concepts of sequence and timing and judge who actually addressed that in his ruling and what he found if you look at a seventeen he found that the rules for define weight sets the rules for defining no specific timing walls are required so the district court judge considered the want to one oral argument about timing and sequence and found that timing doesn't add anything because of course you need to look at the key frames in time and then  brief you say that the claims are directed to a number of different abstract ideas how does that provide any certainty when you can't you don't figure out which abstract idea and how how is one to know what the test is for determining if the claims are directed to an abstract idea i don't remember saying it exactly that way but i trust you that we did and i think what we meant by that was that you have to look at the sort of different layers of attractiveness rate and so exactly what level you look at the claim and i think is not always completely clear the best that i can do for you is to suggest that we look at the precedent and where claims have been found to be abstract and see how close this claim comes to that i have met this claim is more dense than a lot of claims that are tested under section one o one it's not a very high level business that they claim it has dense terms of art but that doesn't necessarily mean that's not abstract if you were to look at parker versus blue circle versus flute is a physical process for catalyst catalytic conversion what the court was looking at there parker involved in the background such a physical process the claim didn't claim anything about the physical process or perhaps that the value calculation would be used in something that's correct your honor but it was simply an  basically an instruction to apply that in a physical process just as i mean i think i want to i want to differ with that i don't think it said applied in that process it's said when you're doing this process calculate this value that might be true but i'm not sure how i see that as being different from the current claim and here's the reason why the current claim is basically taking a set of steps that happen on a computer now we agree that the end result will almost certainly be applied to actually situation just be math but i think the autopilot situation would just be mad and if the claim was directed to the idea of using rules associated with timing and weather conditions to do autopilot that  e would also be unpatentable the issue is you have to say what the rules are or somehow contribute something more than the idea of using rules and on that point i would you want to and could anything have been done the claims here to make  shonen i think there could have been so i think a couple of things can happen and judge will contemplated this because he was very concerned about sort of making sure we were really strictly applying the supreme court precedent and he contemplated the question of what would you do here and he said look if the rules were directed to something more specific so for example if they actually specified what the rules might be that consider the timing and sequence to generate something what that secret sauce is what the invention is eamonn phoneme money you have to have it for every sound you know your honor i think what you could do is you could consider a variety of factors that would go into it and then you could claim those you could also do a means plus function claim if you wanted to specify specific algorithms that you have there are things that could be done to focus in on what the actual contribution was in terms of telling you how it is that you go through the process of flying the plane or how it is that you go through the process of recognising someone's face which are not infringement argument it doesn't relate to the rules limitation as it's defined in the way the rules limitation is defined which is just considering timing and sequence i don't think there's any process for facial animation or lip sync that wouldn't fall into that fourteen if if however for purposes of sex want to want to know if it's not enough to view the claims in isolation i take that to me as a whole and then he goes on and says what we have to do is strip out anything that we strip out all everything that falls under the prior art and then we see what's left isn't that area i mean we're we're we're has what's the legal basis for that type of analysis i think your honor analysis might not have been the most clear way of looking at it and i think that when you actually look at what he did he did look and think about what the abstract idea is and he focused in on the ideas of i don't mention using rules which the patent describes as the core of that invention so when you think about what the claim is directed to of course you have to look at what is the overall concept of the claim and when he says we want to really do that  he didn't use those words but i think if you look at a seventeen year honor at the top of the page he says plaintiff's expert opines that a central part of the patents is using morph weight set representations of the facial coupled with rules including explicit missing timing rules to generate key frames everyone appears to agree with that characterization except to point defendants point out that no particular explicit and dissing pools are required by the cla you tell me otherwise i'm prepared to assume it's fairly common which is that it is commonplace and quite permissible to claim certain inventions in genus form and not recites each  particular embodiment of the claims i soon you don't doubt that claiming can be done that way without making the genus automatically abstract no your honor we wouldn't but in that case you  that the evidence that they cited is only an example of the set of rules that could be used for illustrative purposes and many other rules could be specified according to the methods of the invention that claim purports to cover all explains how it's apply you look at a group of phonemes a subsequence and you're looking at the group like a window looking past it out of the wall to determine what's in your what if you're just looking at individual phonemes and saying what follows what you would look at them as a as a automatically enemies figures but an industrial process for example for catalogs and certain chemical reactions we wouldn't claim necessarily every chemical compound that sad the use this is the catalyst and just list image page and page and pa appendix you would claim it as a family as a genus as a group and that's what we're done here in fact if we had to list every single one be followed by our view followed by you and cetera that would make it complete can't be dismissed as conventional this simply does not involve any of the concerns that animate the role against claiming abstract ideas that the supreme court's articulated the judge simply made a mistake on this one and mixed up all the