what do you know it's been one year since you have been clucking for me i know the time has gone by fast for you but that's what happens when you're working hard you're actually work product has been a benefit not only to my words ok we have a number of cases before sunday we have four cases that have been submitted on the briefs in the court is attending to those two those cases we have two cases before us on oral argument yeah i think if you look at the final board decision that's where the board goes on and further says that the elements in this claim are financial in nature and therefore they qualify as a ski v m but it's still couched in the construction of the  and i agree that that language is in the four decision we don't dispute that but we do but we do think the board decision sufficiently articulate why this is a financial in nature type claim and therefore it qualifies even if they where the court determined that the board relied on the wrong incidental complimentary to language even there were sort of said nevertheless the claim qualifies so similarly here even if this language is in the board decision and there's a problem with that language never language and have us go ahead and wipe the i think our position is the claim qualifies the claim meets a statutory requirement here we do think it's a financial in nature claim we talk movies and down this claim that you think makes it financial nature because there's nothing including the selves that identify financial to the mean that the word consumer and supplier appears but that it's in the context of consumer rights and supplier rights which is is a reference as i understand it to their respective rights hardy's not with respect to the activities of consumer in the financial sense agreed your honor but if you read consumer and supplier and you read it in the context of the specification what the specification talks about of the board pointed this out in repeated places the consumer and the supplier are transferring these rights they call them that are rights but use column rights to music or rights to videos there's many many re even if you look at even deeper determining viral positive or whether the rights consumer is entitled to the right specified well we know for a fact that this back incorporates by reference a prior art reference called stuffing and when you look the only for purposes of determining the proper construction of the claims and it seems to be the specification correct me if you think this is wrong the specification does not tell us that the claims are necessarily to be read planet requires us to do that says a c b impacts are limited to those with claims that are directed to methods and apparatus of particular types and particular uses in the practice administration or management of a financial product or service what we have here consumer and the preamble simply introduces the antecedent for that relate chip furthermore the body they claim is centrally focused on the enforcement mechanism and the enforcement mechanism which is what this is all about the whole purpose of this whole invention is to allow a rights holder to enforce those rights on downstream people in the chain in the distribution chain and the way they enforce that if we reached epic which is specifically incorporated by reference it expressly referenced as that's the repository function of this claim this and the specification says well the barcode reader can be used for a variety of purposes such as a cashier at the grocery store can use it or you could use it to keep track of your furniture in your house or your books in  would that in your view constitute a claim to a patent is directed to fight think that's a much weaker case that's much more closer to the examples that were criticized you know in the wired planet as well as i think the now  this fact when we read stephanie and we read the language of this claim that the perp and the purpose of this invention is predominantly in the use of it forcing rights in the way it in forces that is through licenses and fee collection yes we we agree that the claims may be read to be broad enough to encompass some other activities that may not be that but when the core of the claim is centered on the financial activity even forcing writes to the collection of fees or other type of financial business relationships required to include financial activity or directed to financial activity yes they are because not only in the preamble but in the body of the claim it's specifies a transaction involving a consumer and the specification uses multiple words to describe use recipient sometimes they're called users sometimes they're called recipients but it's specifically states in this best vacation that for transactions involving consumers that's the term it uses it defines them as business models that appendix ninety six in the two eight zero patent in column five it actually describes typical business models and specifies that consumers are the rights recipients in a business model at least examples of not wanting to use not for consumers you know your honor it the other day examples that are in the patent talk about recipients they talk about users and i agree that a general user of rights might include people that are not involved in monetary transactions but all data records i'm sorry the hospital data or aren't they consumers of data so i don't sleep since i mean you're making a point you don't need to make too in this case you're over reading this that's cation but because i did not see the distinction you're you're showing maybe you want to point out see me where it says consumers only relates to people that pay  well it's not necessarily that it's only that the consumers pay fees but what the specifications states in column five lines thirty nine through fifty two and then column six one through seventeen is that in business models that that and using this digital rights management control system for the sale of rights digital rights but it seems like it also has examples that aren't monetary it does have examples of non monetary but when the claim so obviously it's a it's a black letter law principle that you can claim narrower than your disclose and here the claims are directed to a supplier and consumer relationship not just in the preamble but there's a second reference in the actual body of for example your honor in column five line thirty nine the patent states as noted above typical business models for distributing digital content include pro liberal parties such as owners publishers distributors and users each of these parties can act as a supplier granting rights to a consumer downstream in the distribution channel and it's referring there to typical business model security you want to read consumer as a no but for let me give an example your honor that payment has been me it has nothing to do with people it's all about the right to sell vested in the other party and let me give an example your honor and to address the concern about payment it's frequently done for example that you might give somebody a free chapter of a book without any requiring any payment of money to induce them to later purchase either that book or a different book you might give thirty seconds of a song for free so somebody can hear the song hear the artist that that person has the right to consume and that's not related to payment not of for his inventions because you're correct or that it's not necessarily related to payment but it is related to a business model when the claim is restricted to the supplier and consumer interaction it's not just a general user or a general recipient of rights that claim i mean eventually the distributor can tell their own consumer i want you to give me two dollars and  actual exchange of money is not necessarily required and i wanted to say that even though there may be an exchange of money that ms really does not turn something into a i c b m agreed your honor the question is whether or not the claims are requiring activity that is financial in nature and when the specification makes clear that the supplier consumer interaction is a business model it's meant to define a business model using these features it is making clear that this claim is directed to activity  monetary uses of this data right management if the claims and compass both financial and on financial products does that qualify percy i believe it does your honor i believe as long as there is activity that is financial in nature that isn't compass by the claims there's not a requirement under the statute or the definition of that says it can only be financial in nature activity but there does have to be some confidence that it's directed principally to financial and in nature activity there's virtually any type of claim other within one that says specify an exchange of dollars for a service that might in compass activities that are not do not involve monetary exchange but that still would be considered in the patent itself where it defines that business models or how this is used and then it goes on to say that suppliers and consumers are the participants in those business model consists rights consumers and rights suppliers you  that you're leaving out the word rights which to me at least is a very important feature of the definition that's used in the end or at least i'm the phrase that's used in the claims because that if it just said consumers then i i shared that and obviously the guidance from the court has been that you have to look at the specification terms to understand the claim terms and here when the claim terms use those terms consumer rights consumer and right supplier you go back a little what were they intending to encompass by that and it looks in paris in the specification in column five in column six where they introduce that notion of consumer that these are in what they call typical business models so again when you look decision and the final written decision both came out prior to our planet and secure access it's clear that the ford made the exact same errors in this case as had been made in those two cases specifically rather than apply plant when we found that they used the wrong standard we bake the remainder right if you did our patient watching we do that here i think this case the lines much more closely with with the situation and secure access to secure proper standard you know secure access came along and if it was still good law i think you probably have a pretty good case for us just reversing how high but how do we know given that you the specification is it's not just a couple  isolated incidents of payment of money it is replete with references to licensing beads and the like i mean i've read it and i read parts of it and it's a paragraph after paragraph of talking about how this can be used to control data rights in the context of paying for them since the word be the one to determine whether this is the c p m in the first instance i don't i don't believe so your honor based on the facts of this case and the facts of this case my for my colleagues but if you want to argue it you can but i don't think that that's the right look secure access looked at the claims and determine whether the claims in cells were purely financial right i think we get a look at the specifications you need are you the specification to me the specification in this case confirms that the claimed invention is context neutral that is a very important point undertook the holding planet and secure access the claims themselves point out we cite the transfer of rights between a rights consumer of a right supplier and a rights consumer there is no other language in any of the claims ample hospital records university students and the like but over and over again it references fees for licensing and fees for these data rights if it doesn't we don't deny that b let me ask you this hypothetical if if the only examples even though the claims themselves did not include anything talking about licensing fees if the only examples in the specification were financial in nature and conduct a philips claim construction analysis of the claim in light of that specification and if i under principles of claim construction it was appropriate to limit the claim so even a single term from the claims to because of this i understand your question if the claim can cover both financial and i'm pretty actual that necessarily means the claim does not require financial so long as i understand it that this court provided us legislative history i mean what congress was concerned about here was not just a very narrow category of house i mean if you look at the legislative history and they were concerned about very broadly  wielded you know against defendants and in ways that inhibited business and indeed i think the legislative history i think this is in judge where his dissent and secure access noted that one of the claims itself wasn't financial in nature that they were concerned about and under secure access would have been invalid that sounds to me like you're making the same argument that unless the claim is specifically only construed as financial that that's the only way to see the i don't see that that's consistent with the legislative history well the this the definition itself refers to patents that claim a method or corresponding apparatus so the word claim is in the definition and sure but to have to look at what they're saying or at least i look at what they're saying in the legislative history and the case they they were most concerned about one of the independent claims was not on its face these claims are written very broadly and generically to cover data rates and it doesn't specifically say licensing fees but it certainly is going to be asserted against data rights management in the context of providing content for money qualify as a c b i if it does claim some sort of financial activity but there has to be the reason i agree it's good policy to require and also consistent with a definite statutory definition to require some specific financial activity element in the claim is because the c p m definition that congress provided respects says that it has is limited to patents that claim a method or apparatus for performing data processing or other operations in the any product or service and so if if may i finish yes please so sure there can be a claim that could cover a financial implementation or not financially implementation but because such a claim like the claims in this patent can cover a non financial in from a situation not financial implementation that's because the financial is not required in the claim it's not reciting so i'm unclear as to exactly the line that you're drawing here with respect to claims that are directed both to financial and nonfinancial right after i suppose you had a claim that said so but if you took this claim and the claim had were a little more elaborate and it said this is principally to be used for this is bad claims i think but i'm going to put it in anyway principally to be used for  e determinations but can be used for other purposes as well so that if there's a clearly a reference in the claim to financial activity but the claim makes it possible to have a different application of the claims why are you saying that that would not be a c b m because of the reference to some part potential nonfinancial activity it really consumers and rights suppliers cama normally in connection with the obtaining of fees come up although it can have some non theists related uses as well because it's unclear from my understanding of your question whether the financial activity that you're alluding to be in this claim is an actual claim limitation is required in order to infringe i mean it's the infringement analysis if something is with respect to finance but there were an alternative in the claim to that did not require financial activity you would say that it's not qualified because if there is it is possible to infringe claim without engaging in financial activity is that your position i'm not sure you can have a claim like that because i suppose if you have a claim with an optional limitation if the financial limitation is optional yeah then it's one limitation that either expressly recites a financial activity of some sort or through proper claim construction based on the specification is properly interpreted to be in the financial realm and we agree that financial is a fairly broad concept we're not saying it has to be the payment of a fee or the transfer of money we're not arguing that it has to be a specific type of financial activity doesn't have to be limited to banks or anything like that but it has to be somewhere in the realm of a financial activity so let me ask you a slightly different type of suppose you have claims that on their face don't appear to be directed to a financial product look can be used in a financial product and then you go to the summary of the and the engine and the examples and everything and every single thing that's talked about is financial in nature is that to see the impact if based on those facts it is proper to interpret even a having implicitly defined at least one term right because it's not is being a financial term because it's a consistently used throughout the entire specification and the real invention is all financial you can't just hear that so well the play to the end that says well there's  that sounds like a closer call on whether the claim would be interpreted under phillips to be limited to financial if there's fifty examples that are all financial and only one that's not financial it could be a claim properly interpreted that actually excludes that one i find answer the question based on the requirements of the claim and if the requirements of the claim as construed under philips based on the specification include even a single financial component then it's a c v in patents in this case we don't have  i respectfully disagree with the characterizations that the specification is primarily financial there are numerous specific scenarios disclosed that are not financial there are also six or seven figures that go through the flow you to fine for a c p m patent even before unwired planet and that was financial in nature activity incidental to activity or complimentary to activity after on wire planet we know that incidental to and complementary to are no longer sound bases defined g b m but the board did not restrict itself to those two it did make findings on those two which can be disregarded in light of one wire planet but it made separate findings that use the proper standard that remains in effect of financial in nature and could find c p m eligibility so that it was not really sure how they would have cited it without the incidental or why isn't that all intertwined with their analysis here you want to parse it up inside say they've decided the standard i don't see that i think they decided of their interpretation at the time which we have sense correct your honor i can only go by what the specific words and findings of the board are and on page thirteen of fourteen they specifically invoke the financial in nature element not the incidental to or complimentary to language which has been now just a disavowed by unwired planet so i can only take the board at its word and determine that in fact it was not arbitrary capricious because it looked at the entire specification it looked at the words in the claims in light of the specification and it determines specifically that as a result of reading them all together that this patent was in fact directed to activity that was financial in nature even if it did not specifically require payment it did say as it's been said and for sata and blue calypso that merely requiring payment is not necessary for c b l ability there must be just financial in nature activity and here the specification as a whole indicates that this is financial in nature all right thank you if you're going to you have to be rich thank you very much i disagree with the characterization of what the board see i believe the portion of the final written decision that council just referred to is not it's not referring to the claims and says the specification of the two eighty patent reinforces that this consumer supplier relationship at least in some instances requires the payment of a fee or the processing by a clearing house both of which are active these that are financial in nature that's just another place where the board looked at the specification and said in some instances the invention can be practiced in a manner that includes payment of a fear processing of a fee but it never made any finding that the claims actually require this and it never construed the claims to require payment of a fear processing by clearing house or any other type of financial activity it was never construed in the claims based on the specification so those comments were consistent with the board's other findings that the  teaches in some instances the invention could be practiced in a financial manner but our point again is that under the law as set forth in there in a mature recent decisions we have to look at the claims and if the claims are properly interpreted to require financial activity then it's a c v in patent but if they're not then it is not a c p m patent that we submit to this court that these claims are very clear on their face and the fact that the specification discloses that both financial work well let me walk back from that slightly it is if i believe in one work plan it the point is made maybe a little less directly and specifically what i'm referring to is the courts commenting on where the planet at  page thirteen eighty two forty one hundred thirteen eighty two they cannot be the case that a patent covering a method and corresponding apparatus becomes a c b in patent because its practice could involve a potential sale of a good or service you know well that and that does that it was in the context of arguments that this disclosure of the patent in a more planet included institutions but in secure access this court pointed out for side it didn't have before it that the need to address the scope of the definition of a c p m patent in the way that that corrections did and if i could also in responding again a little bit more to your think it's carrying over to thirteen seventy nine then yes i see the reference to philip just that's the it's the written description alone cannot substitute for what may be missing in the patent claims and therefore does not in isolation determine t b m status for thirteen eighty one although i don't have the exact quote here your honor there is a quote along the lines that the proper question is whether when properly construed in light of the written description the language  claims affirmatively requires one or more of a wide range of financial activity so the range of financial activities is very wide but the claim has to require at least one of those and that determination is