please the court could morning this more than ten year old case brings me back and i feel your honor that we should be on almost a first name basis this point my name is laura two second i'm counsel for real estate alliance called princeton direct influence for interim claims not with respect to the ninety nine patent obviously your honor but with respect to the five seven six patent which has never been properly ruled ineligible yes you would did that claim did the complaint raise a claim of divided direct infringement of the five seven six patent by secretary defendants yes it is the second amendment you know plane did and the complaint against a secondary became worse than in the record place i don't have the exact records cite is in the second amendment complaint filed if you'll give that to me on reply yes thank you at this point i'd like to address the question of one on one eligibility and waiver than the joint direct infringement the district court has mischaracterized and continually mischaracterized the nine hundred nine and five seven six patents those patents are in fact of the same type as this court dealt with in trading technologies because they solve problems in graphical user interfaces by claiming a structured user interface method with prescribed functionality the patent itself in its technical field in the ninety nine patent specifically says that it is for the location of real estate properties through the use of an interactive graphical locator interface as this court found in real on the claims require that the properties and the maps be displayed on a computer screen and zoomed to show a higher level of detail things that cannot possibly be accomplished on paper and just because another mapping case has been heard in a district court in virginia similar although with markedly different claims the court jumped to the conclusion that anything dealing with assumable map must therefore fall into the same bucket as being ineligible we submit that that is error the five seven six patent has been declared ineligible on what we can only call a i know it when i see it basis the record is completely devoid of any reference of any argument of any submission and of any reasoning by the re micron technology on november fifteenth urged a commonsense approach to waiver and in the narrow aspect of a rule twelve the motion has said that one must focus on and of vailable argument at the time the argument is made the district court in this case at the time the various arguments were made to the district court real was dealing with at least four different standards for in direct infringement under two seventy one at as the standard pronounced by this and then the district court found that real quote real chose not to address the divide and direct infringement issue and it's not infringement opposition to move the motion for summary judgment during a time when what was required was actual agency as actual unlike an actual agency that is the direction in control of the party performing some of the steps by a mastermind under b m say during that time real had no evidence of an actual agency existing so you agree with the court that you did not do that at that time we could not have have advanced that argument the district court could not have found only evidence of record and methods very scant because remember there's never been a trial here but the district court could not have found and overridden the something broader than the agency relationship again the district court and found that the mere use of the website which had terms and conditions was not suggest a vision to find that the users actions were chargeable to move and the district court rejected our argument and our experts testimony that moves computer systems performed all of the steps of the claim anyway a direct infringement not of the divided direct infringement now the district court had uncontroverted expert testimony that the move system did it and chose to discount that testimony it chose to exercise its discretion in disregarding uncontroverted testimony in the context of s judgment we think that is there as well under the controlling law of the time we could not have in good faith made an argument to the district court because we lacked a document which established that master servant relationship under b m say and therefore we did not mean it when the standard changed we immediately made that argument to this court and to the district court and in the last appeal real thread the standard changed between the time of the affirms by the panel and the subsequent decision in akamai and so the case was sent back to the court continued to ignore the evidence that the users were doing something that allowed the users actions to be charged directly to move in other words what we have here is a joint divided direct infringement but under those standards which judge paul certainly knows very well we were forced to make the arguments that were available to us at the time under control and president of the circuit and of the supreme court and could do no more the arguments on the vita direct infringement during the time when it required an actual agency or a master servant or eight mastermind and current control we could not make those arguments to the dis recorder it would have controvert blog applied at the time in trouble century versus truck the december nineteenth decision this court said that one must look to the activity the benefit the manner in the time and under the facts that are of record and remember the record has been because there has yet not been a trial but under the facts that are a record we know that the activity is searching on the searching a database by map for available properties we know that the benefit conferred on the person doing the searching is to find all of the properties that meet the criteria that are specified most particularly the geographic a higher level of detail that is how it was expressed in the past and that is dynamic because any area of the map may be selected i didn't buy the system more but a user as this court said in real  is the patent office looking for any kind of prior art and finding none as well as the testimony of dr shah our expert who says that that kind of zoom was not in practice in the early will see on a display screen and not necessarily talking about the technical implementation and how you make that happen so where would i find the technical implementation and the specification something that's more system to effect the suit so that a higher level of detail may be disclosed may be shown on the screen it is described in the patent text itself in the disclosure but is fully enabled and described in the source code conduct that was commonly included with patents in the mid eighty's when these were filed and that hundreds of pages of code that code can just as easily today be typed into a computer or scanned into a computer and will operate and so it was described it was disclosed it was enabled and that zooming to a higher level of detail was a critical part of being able to locate properties because when you have a dense database the idea that you know we're supposed to look under step one of alice and see whether the claims are directed toward an abstract idea and so one of the things i do is look to the specification to try to see if the specification has support for the idea that this is the claims are just directed to on this is what i would like to see done on a computer and instead there's actual technical computer implementations i understand your honor available this inventor had to drop his own and code them into a computer data structure there are no databases that have the geographic coordinates tagged to them in the real estate industry because realtors were jealous they would not allow the actual property addresses there for fear that competing agents might steal their listings and so this inventor gathered the property to exact locations and coded them all of this described in the code appendix this is a case in which the patent he describes an improvement in computer technology a user interface that is not so cluttered that one cannot discern the information value i have another question i'm on that akamai issue i find a member correctly there's something in the record where i'm that the plaintiff in my deposing party wanted to go ahead and stay the delay the case further and we as i said were convinced that at trial we could show that every step of the claims had been performed by the computer that move itself  and so the question of what the users did first is what the computer did we believe that we could advents a direct infringement case not a divided infringement case but this court has said didn't work out you wanted to have your joint infringement case which you had given up in order to have the litigation proceed more efficiently no absolutely not your honor we never gave up that argument we never disclaimed that argument what we did was merely characterize that we would advance the case on the direct infringement but we never gave up the argument of divided infringement knowing that the law was in flux but that at that time we could not make the argument to the district co characterized today i really don't think it's important to get or necessarily to get too hung up on the specific words that are used what we should do instead is follow this court's guidance and electric power group resu estate properties in the slot in area and then displaying this property map that's what the purpose of every one of the steps is and that's what they are directed to and we look at the claims in this manner what we see is that at their core the claims are directed business concept which we argue for is this concept of looking for real estate properties has been agony i mean since the beginning of the the classifieds turning to the real estate section reading a map of the county in a concept we talked a lot about how these council for real talked a lot about this database and how it uses geographic coordinates and hand selected this and none of that in the claims the claims recite the creation of a database  bruce the kind of implementation details of what borders filmy are would need to create it interesting that you asked that because this is the fourth appeal in this case in the first appeal this case what we call a real one the database limitation was construed by the district court and as originally construed the district court gave a lot of context and different specifics as to what it needs to look like look like this court rejected that and said there's no limitation whatsoever on the type of database number one number two this is a child patent of a parent patent the five seven six patent so there's a lot of information in the specification that was actually in the claims of the five seven six as construed by the district court that this that the district court also tried to put into the claims of the ninety nine pattern that this court rejected and said yeah maybe in the specification but it's not in the claim language use of the claim language actually uses only a generic computer and with no indication as to how that computer operates and a generic database that this court specifically health is not limited to any type of database it in addition the focus physical stuff is it a physical staff perhaps but it is not one that either improves the functioning of the computer which it must do under and fish to be palatable limitation i am sorry that knowledgeable doing the result of this in being you get a higher level detail no technical manner indicating how it is to be done and that is a clear distinction that this court has held and in in the past as being the reason why it's not an event of concept the i wish i could agree with you it doesn't under the way the claims of big construed in this case because a magnifying glass merely enlarges what is already and this core ok if i move my hood closer to the screen  again you're seeing what's already there and i wish i could agree with the ill because i think i know where you're going this but list the drugs first asking questions not splitting the pie and i understand that thank you for the clarification  exactly right so this is a pre computerized business function that has been performed that we just are merely taking it in the saying let's put it on a computer now and it doesn't give us any instructions on how to do that it doesn't in fact  their claims are directed to something that's not conventional or solving a technical problem that would have resulted by having their say ability to do the double zero right what is your response to that either  to put a finer point on it that it is actually a singles and it's not as i was when you zoom in one time and that there was no there was no problem with computers like no one ever said computer doesn't have this ability to zoom perhaps and i'm not conceding that perhaps they were the first to actually implement that on a computer that's very iffy but the point being that they're taking what you're doing is taking existing computer capabilities and using it because the claims focus not on asserted advances in uses to which exhibit existing computer capabilities could be put that's what this is it's an existing capability that computers could do and other words what they didn't do is create a new way for this issue sure the large range to the law changed many times during the course of this case but interestingly it did not change at any of the relevant points and that that's where timing becomes very important lou file for summary judgment control that's meenakshi standards with the district court called it that's in october of two thousand and eleven flash forward to the real two appeal that's in march of two thousand and twelve brief between may and july of two thousand and  auction standard it had changed in between then but at that point it was the muni option standard and guess what real did it real argued that the standard for direction and control should be changed and that under the change standard different standard were liable another words at the time of summary judgment and real to the standard for divided infringement when they didn't argue anything about divine infringement the standard was the same as it was in real to start real free muni auction we did not direct or control the actions of the end users and silence was the response from from real and when they argue that we were just presenting the facts as the law was while the law was the same in summary judgment the law was the same and real to the us was the same at all three but they changed their arguments consistently completely at that point it wasn't a change of law in other words so the did not direct or control the end user under the meaning up to a standard those were decided issues the that really should have ended the case but it didn't so the only thing left for real to argue was that the standard needs to be changed to move held liable under the standard so then that leaves the question why didn't they argue that point in earlier in summary judgment or in real time real too and that's when the statements come in and i believe they were alluded to earlier they told us why because they believe construction and real one of the selective staffs rendered the issue of divided infringement moved why they believe that i'm not quite sure but their own statements make that clear they said the court's construction of the selecting  appendix on page five hundred fourteen they believed there was no issue notwithstanding that we continued to tell them there was an issue so they decided not to argue and that is what distinguishes this case from those cases  be and when counsel for real argues that those were statements of preservation my question becomes preserving for what usually preserved to make the argument but when we moved for summary judgment and said we don't just one or two issues that are specific to us them addressing the situation as a secondary defense i think is is rather simple however after it's the district court expressed a specific belief that he thought specifically said that in order to pursue our fourth appeal we joined in this report and we were queston entry of judgment of not infringement and invalidity no issues there are there all issues are effectively first of all the district  court lying on a statement from all parties said ok i'm going to enter a judgment that that's pretty much the end of the story as the secondary defendants real by responding to the just record specific instructions to issues that that that they've been appealing to were going to wind as well there is no further issue that has to be resolved as to us i would like to ask you a question or two i my understanding in looking at the record is that at this point  this order from the court was entered in the case in which the secondary finance for in the case yes you're on that's absolutely true yes was an error for the district court to invalidate by seven six rather than  yes i do want to just briefly touch on the some of the arguments made by real in its reply brief he spent a lot of time discussing the possibility that the judgment should have been a rule fifty four the judgment and i think th simple answer there is that before the district court they never asked for fifty for the judgment after the judgment was entered they never asked to have it amended or corrected in any fashion and in their opening brief to this court they  implies in its brief that it was that approach appropriate to interpret the district courts to summer first nine hundred sixty pounds or two thousand and sixteen order as instructing to talk about issues only related to phase only involved in the fees to action is that correct so i think your position they went there was going to be in space today that we have been we've been sort of monitoring all along but we have not actively participated in to the five seven six patent it also was just referring to the secondary the phase two because the five seven six patent was no longer issue in phase one yes around exactly ok unless you have other question