the invention is therefore based on the insight and an error which repeats itself once not detected by a normal fix checking function repeatedly go undetected and then deal how do you can explain though in basic terms why  to be effectively the receiver if there is some sort of electromagnetic interference repeating the same check to correct your honor and the problem with this is if there is some sort of systematic electromagnetic interference for example so there's a microwave in the in the office building rd t v means i guess the t v the better example is always on so that electromagnetic radiation hits that transmitted sequence in the same spot every time so for example if you have a sequence of ten bits and always hits bits to eight and it always hits that stupid if you're always using the same encoding process it's always going to the same two bits the receiving end is never going to know there's a problem  you are changing the bit position of those tend it is why we've been receiving and you know that there's a problem if there's just two bits to we need to can you explain how that would happen why would not know that there was a problem because it's going to happen every single time so for example if you have a device you know for example your refrigerator that's always your fire alarm it's a good example it's always pinging the network no fire no fire fire fire if it's always has the same error at each point it's always going to get the same message it's never going to detect that there's a problem if you have if in contrast in the innovation plan in the six to patent you now introduce this variant component to the computer the very component says you take the earlier question which is why scramble in the original which is what these claims require is beneficial as opposed to generating new data which the specification recognizes as an alternative correct so again my goes into received by the receiver which does a comparison so if you always have the same formula going through and the electromagnetic radiation interference hit them at the same point that comparison check can result in some in many cases it never happens that's compared to the modify data that was sent from the beginning is that why you won't want to just send new data at the beginning of the system do you understand the question i mean with apologies actually i'm not sure i understand the sending of the new using the alternative of generating new dave when you say generate new data are you referring to the random number generator ok the benefit is that it's a random number generator for example if you're using the parity bit function example would be you know if you have an odd number of bits of the number that's added to the end it would be a one if you have an even number of it would be a two it's a more limited checking function so the more limited allows for less original data at the receiving end it can now compare it it's going to go through the reverse of that process as contemplated in the process that existed in the prior art and so now if you for example you had electromagnetic radiation and hit all three streams you original data and the checked out at position to an eight because you reorder those bits when they become that no they're put back into their original formation they're different so there is now a much better way of checking because correctly what you're say you're comparing the benefits of using scrambled to it as opposed to the original bit which was not my question but when you put it differently the do these claims cover we are not relying on claim one is being independently i should say we're not relying on claim one because of the fact that we have disclaimed it i still think claim one is important because it sets forth the structure and the architecture of this claim and provides is if you were to just move the strip to the organization of the of the components you have the generating device operate st and then interleaving device the permeating device operate also not covered because again the claim one architecture requires mean i think i agree with judge di that the your brief for claims over and over and over again this is an advantage this detects systemic errors but it doesn't quite piece together why that is true by using permutation and then varying the permutation over time it hasn't had struck qual the brute the briefs maybe the claims too but at least the brute thank you so let's let's try to bring it down to brass tacks the problem is that is with check data check data is supposed to be some representative value of the content of the data inside a given data block but because it's just shorthand value shorthand label for all that data in that data block it can't precisely describe all of the data because it's very short and so what that means is you could have a given checked data value that corresponds to not only that particular data inside that given data block but it also might force onto other versions of data and so therefore you can come across a problem in the data transmission where a given data block is corrupted in a particular way a particular bit but still nevertheless generated on the back end on the receiving end the exact same checked data value and so to that error detection scheme it will look like the data block has been transmitted cleanly because the check data values on the front end in the back end are equal to each other and so if it's a systemic error then what's going to happen and throughout your entire data transmission block after block after block you're going to have the exact same error and the detection scheme is not going to be able to figure that out because the check because of the limitations of checked data values right correct ok so what you've done is you've decided they're going to permutate the data the original data in each given data block and then you're going to vary that permutation maybe not for every single block but for several blocks in a given stream of data block transmissions and by varying the permutations  even if the st permutation doesn't capture and reveals that the persistent error because it still ends up generating the exact same check data  back down by varying the permutation at other given data blocks you're eventually going to come up with a variance in the in the data that doesn't that will reveal the  error and not keep it concealed so at some point in time you're going to figure out a ha we've got an error here is that the claimed invention more because i would say it a bit at a high level yes your honor and i would say that the examples you gave can you tell me what's going on with claim three claim to you have a theory where you're varying the permutation over time and i suppose for successive data blocks you're using different permutations different methodologies of switching the bits around scrambling the data but i don't understand claim three so claim to you are just to claim the structure is from time to time and yes it would other examples for example can be based on an index can be based on other qualities of the data itself why would that matter oh if it's twenty bits use this permutation if it's fifty bits use that perm to argue there was an independent reason for why claim three you know aside from claim to short is patton eligible and i don't understand it right now you've give me if you've got fifteen seconds to tell me what's the answer s so the idea that you're basing it on the characteristics of the original data where that comes in and where that confers a benefit is because you have both the receiving of the travelling and when you're basing your permutations on the characteristics of the original data that allows for there to be a similarity and for both receiving and transmitting and because it's based on the characters at the data the data is going to be the same at both and that is where the benefit comes in you're now are allowing for what the pat described as that added benefit conferred when both ends are using the same permutation structure that is satisfies my claim or nor claim to that they're using the same permutation device at the beginning in the won't claim three is just done at the sending end and the receiving end that's all point three i'm saying that claim three requires that the permutation applied be based on the characteristics of the m original data one of the examples of that is if you for example have a block that has a set number of bit is that the focus of the one on one and alice has to be on the claims and not on the specification ok but why don't you perceive for the moment the theory that we reject your argument that the claims are not directed to error checking in your argument is that just talks about generation of data but let's assume that it contemplates a generation of data for the purpose of error checking why motion talk about generating additional data for use in error checking so we have no problem with that why are they an eligible the answer to that question is found by looking at the language of the claims themselves and if you look at claim one from which claims to through four depend and really this is the beginning and end of the analysis as far as i'm concerned there are two there are three elements of the claim there's a generating device that is configured to generate check data and that has been for purposes of this analysis construed to mean generate supplemental data for use in error checking and then there's a data means write and check data you know we know what that now claims to true for talk about how do you do that very but they don't otherwise change the structure of the cli well at what point to something important which is the very device modifies the permutation over time that is uses different checks different times or different walk not different checks but different permutations absolutely it performs different permutations on the data at different times but here's here's what has the advantage of checking versus them and that actually there's nothing in the pattern that talks about why that's an advantage at all the only description in the patent about varying the permutation over time is contained in a single sentence at the bottom of column five says nothing about why that's useful and i don't know why it's useful because when you're her mutating the data there's nothing in the pattern that says that somehow to check that it will be any different by permutate in the data before you generate it but the reason the fundamental reason why disclaim why these claims are ineligible is because there's no connection in the claim between the permutation data and the generated additional data there's nothing in this claim that says  implies or has been construed to say that the very data is in any way used to generate the additional data that starts saying that yes he did that he said that there's nothing in the claims that tells you how to use the recorder data in construction right now i think you are because there is a counter claim construction that when you read this claim in the context of this patent generating device configured to generate jack data  put that it's generating projected that is based on a certain input what is that input it's the input coming out of the varying device that varies the original data based on a  can change over time over the course of a series of different data blocks so when your i understand your argument which is i don't see actual words that say take all of that varying data that you're generating in this claim and plug it into the generating device to generate so check data but the claim at least the preamble says the producing error checking based on original data and then this claim talks about taking the original data varying that original data based on a permutation and then ultimately generating dies the device to generate the check data i think there's a logic inside the claim that you're taking that original data which is what is it ness is needed to generate check data and then you're doing all these middle of the manipulations based on different varying formulas to manipulate to generate the check data you want to i guess for now let's just assume that that's a plausible reading of the claim and i understand your position or at least one of the positions is  correct reading of the question but let's assume for the moment it is then where do we go ok so st of all the claim is still ineligible and i'm going to explain why i do want to direct your attention to appendix six dollars which is where at the oral argument counsel station in response to a direct question from judge starr do you need these claims to be construed and the answer was no we don't need to get there and there is nothing in the language of the claims or in the construction that says the logical interpretation that you say is plausible that may be a plausible interpretation we're not arguing claim construction here because no claim construction issue was ever raised and council said we're not arguing claimants nobody claims could be interpreted as one of six now what i my understanding is the entire premise of their argument the other side's argument has always been about the importance of varying the original data into various formulas and then producing check data based on that very original data so that it is an articulation of a conception of what is going on inside these items you're right your honor although what look at when and so i don't know without doing a formal claim construction why or how that particular conception of this claim which i mean to me doesn't sound crazy should be dismissed out of hand i think i don't disagree that it doesn't sound crazy what i disagree is the k p n as ever argued that that's how the claim should be construed but how are we supposed are we supposed it's just not supposed to try to understand what it was as we make an assessment of whether the claim is eligible i think that you're wrong we probably didn't say don't repeat this claim that all i think they probably said you can give it plain ordinary rule meaning that you don't have to interpret the coin well great what that not really but almost what the parties actually said is that there were constructions which k p n sought in a pain in a different case against samsung and every we said let's use those constructions because they must be the most favorable and in this in your opinion in content extraction this court has said it's appropriate to give the the the claims the most favorable meaning how those instructions bear on what we've just been part of those constructions when you read the language of those constructions nowhere add to the claims the logical interpretation the judge chen was saying could be an interpretation that there's a connection between the reordered data and the says there's a generating device configured to generate checked yes that one of ordinary skelly or would not understand this claim to mean that that very day regional data is the thing that they're generating devices are parading on to generate the reorganize it and then generate additional data now the git the new data may well be based on the rewarder data under this claim construction right but then they simply say it's for use in arabic and the reason that that claim you still you know interval is for the same reason that the claim was ineligible in the content extraction case or in did you tack or in any of the other claim cases in which all the claim does is take data reorganize  let's assume that that's the why is that happening now well because it's still even with all of those assumptions the claims actually never put to use the data that they generate now i'm not saying that  patentee has to claim i mean tire system you know order to have make concrete eligible invention however the thing that the patent team has that claims well let's say hypothetically that we did tell them to put the data to use for error written to cover what's actually described as the invention in the in the patent which is doing what you just said on both sides of a transmission and then comparing the results to determine whether an error has occurred i would not be standing up here with the same argument guess what here's my concern with that response is that it seems intuitive that you ought to be able to patent an improvement to a particular device in an overall system rather than be forced to go further and claim the entire system with one of the claim elements improved device and so here ready why isn't there an argument that this check now give you or give the system an important tool to uncover systemic air through the variance of the permutation formula and so thanks to the power of software what we have is a device that something of a shape shifter you know that block one it uses permutation formula one at block seven it's going to use permutation formula number seven and then and so on and so on such a way that now you're going to figure out this is done the error that keeps repeating through all of the data blocks so what we've got here is arguably shapeshifting check data generator your honor if if they had claimed that check generator and in some kind of an application we would be dealing with a different case and if i did not mean by in some kind of application because why can't you just claim the features of your improved device full stop period don't go further and say and then you know now i'm going to convert my device claim into a method claim because now i'm going to then recite all the steps of how this device gets used in an overall system you absolutely can do it as long as th the thing that you are claiming is itself a concrete invention and if i may analogize the i think it was diamond the dear case a long time ago was the case about using a mathematical formula for curing rubber and in that case the supreme court said that that was a patentable patent eligible claim because they talked about how you use the mathematical formula in the process of curing rubber now if they had instead written the claim that rubber using this mathematical formula i think we would all agree that that is not a patent eligible invention because they have not described how to use this abstract idea other than simply say put it in the prefer in this context wh all of those cases talk about taking data manipulating the data generating additional data putting it in a new form i am reminded of the court's decision in digital and in that case this is what they said nothing in the claim language expressly ties the method to an image processor this was this was about creating a device profile not sure of the facts or maybe let me talk about the facts for a moment in that case there was a claim that said take all of this data from one source take all busy of this data from another source combine them into a device profile and the specification talked about how important that was in then doing image processing this court said that the claim generically recites a process of can binding the t a device profile it does not claim the processors use of the profile in the capturing transforming a rendering of a digital image and the point that the court was making is the same point that we are making here which is that eligible invention here because i'm a lawyer but but i totally agree your honor that had they claim something that is actually what's described as the as the innovation as the technical technological solution had they done that and seeing whether there is air in that communication right it's pretty near a well let me take as a given that that's true i'm not sure i agree with that but even if that were true to meet the answer doesn't change as to eligibility because all you have done with this claim is described and it's a device but that doesn't do anything it's a method that is implemented on generic generic hardware to do the following take input data reorder it generate additional data for us how do you use that error check data should you be doing the comparisons against both all of that stuff is absolutely absent from the claim it is simply generating data and the the language that they that they hang their hat on that it's for use in error checking that there is no more than place this in a technological context with the supreme court said in alice was insufficient it's not sufficient to simply say when you generate this data use it for error checking something that's that's not not an intended use of the statement this describes the specific output that's required which makes it a more concrete invention i also want to talk just respond the advantage of the varying device your hon that it didn't incorporate stopping the car does not mean that the invention that was claimed this concrete specific device that's contemplated certainly to be incorporated into a larger system or process or vehicle in order to realize that benefit doesn't mean that it's not a better person chaining device and that's what exactly is claimed here and i think with respect to the benefit to be realized by this again the specification makes clear that the benefit is specific to the perm the invention is also based on the insight that a variable checking function can almost always prevent the non detection of repetitive errors a further aspect of the invention is based on the insight that the varying of the checking function can be advantage and a