focused on its decision finding that that language in vote means plus function treatment under section one twelve six respectfully that was erroneous for we submit three basic reasons the first is that the claim language issue is not indeed an element of the invention itself it's a recitation of the the locus in which the invention is is operating it's an optional recitation of the essentially prior art systems that ma modified by the invention the invention here is a novel form of graphical user interface interface for devices that allows for them to essentially be controlled by certain new techniques including movements alone as opposed question and to be fair these are claims that were prosecuted by the inventor not not counsel or a lawyer but in any event i think the inventor provided an explanatory information about the environment of the invention for contextual purposes because as a practical matter it's an operating system or a graphical user interface for an operating system that creates a new mechanism for interacting with the device and that is really best understood with reference to what it's modifying or what it could modify and what came before and so in this case the plain language refers to an existing program that optionally claimer sites may be updated with the novel interface of the cla so for example if we look at claim two which is the independent apparatus claim claim fifty two is a very similar drafted method claim but it refers to an existing program that can operat movement of the pointer over a screen and has one or more functions operated by one or more other methods apart from it has said to step method which is really the core part of the invention this method of utilizing movement alone and not clicks to control the interface and to control the operating system and the claim goes on to describe that inventive context but indeed we see that in the preamble the graphical interface of the but i think the claims themselves recites a new set of control functions and control steps for operating and operating system the claimed term issue in this report relied on is this existing program term which refers to the prior art essentially system or hierarchy operating system that would be modified our view is that there is no need for a disclosure of an algorithm because this isn't the invention it's not claiming this preexisting program is the invention it's claiming that the invention modifies or could be used to chain create a new operation instead of this preexisting operative you rely on  our cocks decision for this idea that somehow the analysis of one twelve six is different if the words that issue are not part of the invention a part of the environment we really do rely on the cops decision your honor i think to be clear the key there is not it's not self evident why that should be true if somebody would actually have to prove the in an infringement case that even the environment is present well i think two answers to that first we rely on the cops case because ultimately what we're dealing with here is a finding of invalidity for say that here right because this is about changing something in existing programs how i can actually you know i think that that's not correct i would say that the words could be removed here because the claims recite optionally modifying an existing system the graphical user interface of the claim could either be a modification of an existing system or a standalone completely new operating system or what do you really think if you put aside this cox environment stuff what's your argument for why the terms are not one twelve sixteen well i think there are a couple so first whether you look at it under cops specifically or more generally under this court's broader precedence that you look to the claim as a whole and whether it informs one of skill the art of scope with reasonable certainty under not a list of cases i don't think that this language in any way so i guess i'm confused i thought that you had an argument that even aside from this environment versus invention claim this is not a means for us function claim forget about one twelve two on its own but this doesn't fall into one twelve six because the terminology used here has a nuff structure and in any event is certainly more structure that a series of nonce words in the cases that we have  precedent is clear that there is a presumption when the word means is not use that the claim term is not invoked means plus function treatment and should be construed that way it's no longer a strong presumption under williams and but it is nonetheless under this court's clear o precedent of presumption here no evidence was submitted to overcome that presumption and i do want to direct the court's attention to a case that i think well referenced in some of the cases cited in the briefs wasn't expressly discussed but which i think does speak to this issue its apex inc versus raritan computer that's at three twenty five f third thirteen sixty four and there this court discussed in some detail the notion of how one overcomes this earth and how this presumption works in practice and it speaks to it as one would expect any presumption given a fair or not a strong presumption that the party who against whom the presumption lies in this case apple must come forward with evidence that according to this court has to meet by a preponderance standard the showing that the words at issue in the claim would not convey structure to a person of ordinary skill in the uk and it would not convey some sufficient structure and what we have here i take it is that their favorite case on the other side is williamson which they characterized as which i think is not really right is referring specifically to software when the term module referred indiscriminately to software or hardware things that in common sense way are so different they're not meaningfully a single structure and you want to say that if it had said some software alone maybe even existing software that would be different and at least one district court has a very wide variety of possible spread structures but nevertheless something quite different from a word like thing that is correct your honor and this court's precedents are pretty clear that a class of structures is what's required not some very specific structure ok can i ask you a i guess a question i don't remember seeing anything in the briefs about this and maybe you know or you don't know  for sixty or maybe even seventy years there have been patent claims about software that p t o in order to decide whether prior art invalidates such claims needs to figure out whether terminology is one twelve six or not do we know anything about sixty years worth of practice or what the m p e p says or or is what's being requested or what was decided by the district court here and being requested by apple something that would dramatically change or fit with existing practices or what i think your honor i'm not aware of a or code for doing something capable of doing something whatever to the examiners say ah we're now in one twelve six land look at the spec to see what the specific structure i am not aware of any other rule or general practice in the patent office that would follow that doctor and i think my understanding at least is that the patent office looks at those those claims and says ok it's code for doing this that's what we should look at i get my rebuttal time but if the court has other questions i ha zero click has claimed functions without disclosing adequate structure for performing functions it has a claim to use only the generic terms programming user interface can it can you answer that question about what's been going big game in your sights for pay for something that feels like a dramatic change you can't exist in practice i can't myself think of a prior instance where the term program or the term code has been treated as invoking one twelve six and you would sort of transfer into one twelve six what feels like quite a large  clear pattern specific argument we're not suggesting any kind of but it would have consequences i would have consequences i would suggest for the for the structure of this patent so what this course cases teach especially post williamson is that when looking for adequate structure in a claim term one reads that claim term in light of the intrinsic record to see if there is adequate structure disclosed in the end that intrinsic record and sometimes in a case like this if the word program is used issue every time the the work program but i'm not sure what you mean by that if we're looking at the specification of the term that they're structure and if that structure is an algorithm even a very simplified one of this is a indication of how the prefer the specified function is to be performed and what we have here is nothing like that to the op to the contrary if i could refer the court to  standard off the shelf existing programs that control the question so there's a world of very specific things out there that this claim says we want to modify those things well your honor there's nothing in the intrinsic record that suggests this is kind of a classic off the shelf software it's talking about existing programs it's talking about existing programs they chose to limit their claim that control cursors right i mean in the six nine well they got even much more than that if you look like their construct in this case they're talking about all this white movement on an i pad or that's the that's the contribution that that they say they want to add that is they want to modify the existing mouse drivers if to use that term and by eliminating the click so that a movement affects the same gives the same information but the clause that we're talking about here is existing programs that can operate the movement of the pointer that's that's an express reference to what already exists why would you have to describe that in the in the in the specification things it works with all existing diesel engine and isn't that specific enough that might be the question here though is in the computer context in this court cases have special rules and application just be clear because i think there's some buzzing us here about why you're asking us to put this under one six instead of one twelve two in the engine case clearly we wouldn't be talking about one twelve six you talk about one truck too right right because they're clearly structures right but so they've got to work together because when you're in the world of functional claiming the structure of that performs the function has to meet the one twelve two reasonable specificity requirement and if we look that's not your argument here you're trying to say that there is no structure and therefore it's indefinite under paragraph two that's the consequence of functional claiming right without disclosure of adequate but to get there you have to convince us that using the word existing program claim term and i'm sure you have it in front of you but this is i mean let me ask you this if instead of the existing program it it sad and clearly they don't want to do this because they don't want to limit it but they are given a list of defined existing programs  microsoft word and excel spreadsheet and you know a list of ten other things would that still be indefinite i think that would get them closer i think that might be might be in the in the in the step two of the an of the list of those programs in the specification it's possible that then that it wouldn't it that claim would be limited to that president but if they put them in the clip they put them in the claims i think that would be again at a closer case if but how could it be a close case at all because here it would be identifying specific programs that we know have specific algorithms they don't have to disclose those today they may not even argument that existing programs not at the user interface which is the difference for you but existing programs refers to unless you're disputing this but it seems to refer to me to any kind of program that can operate on a computer using a pointer and those things are out there and they exist they are they have structure they have code they've been written the fact that it's a broad category doesn't seem to me to render it functional claiming  all software and it's defined functionally so when you look at the specification you don't see a specific list of kind of brand name programs what you see is further functional claiming they are saying that this program works with all existing software that can perform these functions that again is functional claiming there is no structure there's no specification as to how these existing programs perform this function and that's critical because this is not just what is  not really true because it has the further limitations from the quoting itself about programs that operate the movement of twitter so it's not any program that exists or can conceivably exist in the future it's ones that use a pointer and this is a way a new way for controlling those programs without a mouse it programs that can use the cleaner so it's defined in purely functional terms not in structural terms it's talking about programs that have this functional capability that is pure functional clearly because there's no indication in either the claim term or the specifications as to the structure as to how these programs do that and that's critical because this is not just kind of an irrelevant backdrop the whole point of the invention is to allow the selection of functions based on pointer movement and what does the future movement the existing program so this existing program provides or have to see basis how do you write this claim because i mean i'm really confused about what because they're not they don't care what these programs specifically do they care that they use a mouse to operate a pointer and they've invented a new way of doing that that doesn't require a mouse and doesn't require clicking and so how would you write these claims to make them definite without saying exactly this or without making them recite a laundry list of existing programs i don't think a lot of this would be required there have to be be some indication in either the claim elements or in the specification about how these existing programs operate the pointer and i think that goes to the kind of core why they don't care they're inventing a new way to operate the pointer they don't care how the existing programs do invented a way of doing it with movement a lot of rather than a click but however those existing programs do it i mean there may be some other serious problems here with this patent but i mean there may be written to search for problems at all kinds of things but seem like some kind of over face over the existing programs right judge she is right they may not care in fact a perfectly happy to have this kind of broad functional claim but other inventors would care and the reason for that as explained by this court's decision in a wrist aristocrat others is that when you're talking about specialized functions on a computer computers can do many different things in many different ways and one can between the function but they're not operating the functions in the same way the software that does something like that moves a pointer and then in your pen you also claim or you also say that this is going to apply to all future software development seems to me that unless you have some sort of algorithm that tethers that claim to how you're going to perform this particular function then in essence you're claiming all future functions that relate to the mouse or the movement of a mouse and who knows what the future holds are and how can a how can this particular claim contemplate that it's going to apply to all future developments with respect to the use of well over a pointer perhaps in the future we can do wit from her arm just right judge reynoso that's the point that that aristocrat makes that because computer functions can be implemented in many different ways one can't claim the function and if i'm an inventor down the road who invents a new way of proving a point or perhaps with the movement of my eye under your clicks view then that would be covered by this invention even though it didn't identify that met that mechanism for moving the pointer in his claim terms or in this specification it's simply broadly claimed the function itself so you're not making an argument here that there is indefinite as to how to make movement to serve the function of a click that's not what the claim phrase here is about you are entirely making an argument about the existing program that can operate the movement of the pointer it's not an argument about insufficient definition of how to do the new thing it yes with a qualification just trying to get insufficient structure for how to do that which is why i had to do what how to move the pointer how to move the point without if one claims function and there's no kind of data to garmin but that's not the new thing that is not that the new thing interacts with the old thing it's that's the core of the invention is using that movement of the pointer to select functions and that and that existing software that existing program provides antecedent basis to depending claims twenty two and forty which are only about the existing program existing program isn't just window really sounds to me like you're saying that the user interface itself is in government we think there are other problems with this path but that's not the argument we have up here and that's not what you convince of this record to buy off i know we have other arguments that are that would be addressed by this report in the event of a remember but the argument here is process no we don't know how the how the movement operates we know what follows from the movement the pattern assumes the movement that assumes there are some structure there for making that movement happen without disclosing what that either they've chosen to identify to limit the skill at me or let me ask it another way trip this set a graphical user interface where that exact operate all existing microsoft products so we now have a close specific list would you still say this is a definite or would in that case what graphical user interface be definite if all of these microsoft products that get that can operate the movement of the pointer yes that would be of much closer case it probably wouldn't be indefinite and why not well because they've identified particular structure a class specifically named class of programs and even off the shelf it doesn't tell you any more about what their graphical user interface does nobody tells me as a future window what their graphical user interface does from i'm keeping your car but they know what your can it seems to me the problem is you're going back and forth between the graphical user interface itself being sufficient structure without the programmer or not know what the program is the foundation of the claimed invention that the existing program provides antecedent basis to the rest of the claim provides and i to be dependent claims if they chose they didn't necessarily have to do this but they chose to limit their claim in their reply brief page for they say oh no we're not saying you can read it out they chose to limit their claim to a graphical user interface that could function with and take advantage of any leverage the operation of a clique of existing programs but they didn't just find that group with specificity and they just they find it in functional terms of purely functional terms and the intrinsic record provides no to your r i want to start a little bit where i think some of the discussion with my friend and did relating to the the relevant understanding of the claim itself so i just read it you asked a question about the claim essentially being claimed to cover all possible software that does anything respectfully the part of the claim we're discussing the existing program claim element is really referring to what comes before and what could be modified the remainder of the body of the claim which is not really before the court and none of those terms are at issue is what actually defines the invention and sets forth the specific mechanisms of operation and if you will the algorithm for how to control the pointer using the new invention that's not before the court so we get to the elements about midway through the claim period secularly graphical user interface executes one or more function this by the completion of the following set two step method and then it walks through the steps of the inventive method of controlling things through movement as opposed to clicks that's clearly what the invention is about the fact is that's an invention that has broad application potentially to lots of different programs or operating systems if you will that could be modified to be controlled in this different method the specification actually it's quite lengthy but the inventor actually describes himself modifying  tablet type device with a touchscreen to he was a medical doctor and he wanted a better way to input patient charting information and so he actually modified the interface of his own devices are you saying that that's the structure that that defines a program that can operate the movement of a porter no i'm saying that that's the structure that defines the invention the program that can operate the movement is a reference to an existing essentially prior art program it and the environment in which the inventive methods are user says that but so what you're saying is that there is no structure that defines a program that can operate the movement over there's no additional structure or i think that well i  have two responses that first i think that that is a sufficient recitation in of itself of to the extent structure is required given the context of the claim i think that's a sufficient reference to structure i think that also to argue that it's not is and it is a burden that apple bears and for which it came forward with no evidence and that under this court's precedents that would mean that the burden has not been carried that one twelve six applies i would however suggest that there is elsewhere the specification further brief the first portion of column three of the lines one to eleven there is more discussion of this starting around line thirty four thirty five that further discusses such existing programs but again this is in the context of what's in the art what's what's changed by invention not what is the invention and so and i do think as i mentioned that here the burden issue is important in two to the question that i think was asked should be true of programs for the same basic reasons because you no longer if you say means could be hardware could be software it could be anything but if you say circuit it has to be a circuit it has to be hartwell that what was the language of everest to crack that i think one twelve six is not the appropriate framework if you recycle a program for doing something in the same way that you recycle a structure so rich the credit still good luck at absolute zero but but you know aristocrat the difference is when you say anything you know mr pratt what that's addressing is cases where parties would say well our specifications references a generic computer or processor and that's structure so that's good enough and the courts in aristocrat said no you have to be talking about especially programmed processor and is to say that that's your corresponding structure you have to disclose what the programming is in some form what that algorithm is here we're not saying it's any computer any processor that can perform these functions it's got to be particular code and the code is the structure it's excluding the universe of hardware in the question ok we thank you very much