[00:00:01] Speaker 01:
good morning everyone the first argued case this morning is number fifteen eleven eighty and dox is your limited against open it telecom incorporated mr walden may it please the court my name is calvin walden and i represent the appellate and dox we've reserved uh... three minutes

[00:00:32] Speaker 04:
The District Court's decision to invalidate Amdoc's patents under Section 101 should be reversed because the District Court erred at both steps of the ALICE analysis.

[00:00:42] Speaker 04:
To illustrate how, I would respectfully ask the Court to refer to Claim 1 of the 984 patent, which is set forth on page 22 of Amdoc's opening brief.

[00:00:52] Speaker 04:
The invention claimed in the 984 patent, like the other patents that bring us here, provided a novel solution to problems arising in packet-based networks by taking various network devices distributed throughout the network, such as routers.

[00:01:06] Speaker 05:
Is the problem that you described peculiar to the use of internet or computers?

[00:01:13] Speaker 04:
Yes, we submit that the problem is peculiar to the Internet for at least three different reasons.

[00:01:19] Speaker 05:
Did the problem exist before, let's say, the advent of the Internet?

[00:01:23] Speaker 04:
No, the problem did not.

[00:01:24] Speaker 05:
Can you describe that, please?

[00:01:27] Speaker 04:
Certainly, sir.

[00:01:28] Speaker 04:
The Internet, unlike what came before traditional telephony networks, the Internet is a packet-based network.

[00:01:37] Speaker 04:
So instead of setting up a single circuit to, for example, make a telephone call from New York City to Buffalo or wherever, you instead send packets through a network that has various devices distributed throughout the network.

[00:01:56] Speaker 04:
So that is the first difference.

[00:01:57] Speaker 04:
The packets don't travel in a single circuit.

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They are multiple packets that are sent along different routes normally.

[00:02:05] Speaker 05:
Another difference is that, but with telephone use, weren't, for example, a telephone call broken down into electrical impulses so that you don't, so you kind of have the mini packet or the broken down packet

[00:02:21] Speaker 05:
situation with telephones as you do with what you describe here.

[00:02:26] Speaker 04:
Well, the difference is that in a telephone call you set up what's called a single circuit.

[00:02:31] Speaker 04:
So you set up a line between the two geographic endpoints where the conversation is going to take place.

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That circuit stays open until the conversation is completed.

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And so whatever information or whatever conversation that you and the recipient have is all over that circuit.

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It goes from me to you and from you to me over that circuit.

[00:02:52] Speaker 04:
And so when it comes time to make a record of that conversation for billing or for whatever purposes, it's simple.

[00:03:00] Speaker 04:
And the patents explain why.

[00:03:02] Speaker 04:
Because you've got that single circuit that opens.

[00:03:05] Speaker 04:
You know when it opened.

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You know when it closed.

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You know the addresses of the to and the from because it's a static telephone number.

[00:03:14] Speaker 04:
Therefore, it's easy by essentially listening in on that conversation at a single location to get the information that you need to generate a useful billing record.

[00:03:25] Speaker 04:
In a packet-based system, on the other hand, you don't set up that circuit.

[00:03:29] Speaker 04:
Instead, every single time you send and receive information, you receive packets across the internet.

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It can take one route one time.

[00:03:38] Speaker 04:
The next time you speak, the packets may take a different route.

[00:03:41] Speaker 04:
It all depends on the internet and the intermediate devices and how it gets routed.

[00:03:47] Speaker 04:
And so, unlike the telephony network, you don't have that circuit, that single place where you can find a switch and say, okay, we can analyze that conversation.

[00:03:57] Speaker 05:
So what's the problem?

[00:03:58] Speaker 05:
What's the problem that the patent resolved here?

[00:04:01] Speaker 04:
Well, the problem is the problem that's posed by the internet.

[00:04:06] Speaker 04:
When you're sending packets over this disparate, non-centralized system, it's hard to track who's doing what on the system.

[00:04:14] Speaker 04:
It's hard to track how many times that a user is downloading data.

[00:04:21] Speaker 04:
It's hard to track where data is coming from and going to.

[00:04:24] Speaker 04:
There's other problems that are unique to the Internet.

[00:04:29] Speaker 04:
It's a layered system, meaning there's a physical layer, there's what's called a Mac layer, there's higher layers.

[00:04:35] Speaker 04:
Different components on the system speak to each other using different languages and different protocols along these different layers.

[00:04:43] Speaker 04:
So again, that presents a unique problem that the Internet has given to service providers in how to account for those different layers.

[00:04:53] Speaker 01:
The district court seemed to think not so much that you hadn't come up with something that was new and elaborate and complex and filled a need, but that your claims were so general and so broad that there wasn't anything other than a generalized statement of

[00:05:16] Speaker 01:
a solution or a problem.

[00:05:18] Speaker 04:
Right.

[00:05:19] Speaker 04:
Well, we submit that the district court did not accurately recognize in her second opinion the inventive contribution that these patents have added.

[00:05:29] Speaker 01:
Or that the inventive contribution was not included in the claims.

[00:05:34] Speaker 01:
It seems to be more of what the court

[00:05:36] Speaker 04:
That is correct.

[00:05:38] Speaker 04:
That is what the district court found the second time.

[00:05:40] Speaker 04:
We submit that was error because the abstract ideas that the district court formulated for these claims was not an accurate reflection of those claims.

[00:05:58] Speaker 04:
So for example, the 984 patent, claim one,

[00:06:01] Speaker 04:
she said was directed towards reporting on the collection of network usage information from a plurality of network devices.

[00:06:08] Speaker 01:
Perhaps the claims were so broad your opponent says that they're not infringed because it's being done differently and yet the claims do seem to be directed to the concept perhaps being the first to solve the problem is an entitlement to breadth but this

[00:06:29] Speaker 01:
Isn't this what seemed to trouble the district court?

[00:06:32] Speaker 04:
I think that's accurate, that it did seem to trouble the district court.

[00:06:35] Speaker 04:
But we submit the district court erred when it did not account for its own prior decision.

[00:06:41] Speaker 04:
This is the second appeal of this case.

[00:06:44] Speaker 04:
We were up before your honor and Judge Raina and Judge Clevenger before on a claim construction that the court had found for each of the 984, 510, and 065 patents, three out of the four patents

[00:06:58] Speaker 04:
that brought us here.

[00:06:58] Speaker 04:
In that claim construction, the district court found that the collection of network usage data and not only that, the processing of the data to enhance it or generate a complete record must take place close to the source of the collection in what she called, or what the district court called, a distributed architecture.

[00:07:17] Speaker 04:
not only did the court find this, and this was affirmed by the federal circuit, but the district court found this was a key feature of these claims that differentiated the claims from the prior one.

[00:07:29] Speaker 06:
Mr. Walden, Alice has two steps.

[00:07:34] Speaker 06:
I'm sorry, did you finish yours?

[00:07:36] Speaker 06:
I did.

[00:07:37] Speaker 06:
Alice has two steps in it.

[00:07:39] Speaker 06:
As I read the district court's opinion in this case, he never reached step two, or she never reached step two, I should say.

[00:07:48] Speaker 06:
She stopped at step one, that is, she concluded that your claims were an abstract idea.

[00:07:54] Speaker 06:
Do you agree?

[00:07:56] Speaker 04:
I would say that she did at least

[00:08:00] Speaker 04:
nominally address step two.

[00:08:02] Speaker 06:
She said that these were claims that... But she didn't find step two was satisfied, so that went away.

[00:08:09] Speaker 06:
That's correct.

[00:08:10] Speaker 06:
But she did find step one was satisfied.

[00:08:12] Speaker 06:
That is to say, you are an abstract idea.

[00:08:16] Speaker 06:
Now, help me understand.

[00:08:18] Speaker 06:
What do you think an idea is?

[00:08:22] Speaker 04:
Well, I think that you have to look to see what the claims are directed at.

[00:08:25] Speaker 04:
No.

[00:08:26] Speaker 04:
What is an idea?

[00:08:27] Speaker 04:
An idea is a thought.

[00:08:30] Speaker 06:
You can see where I'm going because my next question is going to be what is the meaning of abstract as you understand it.

[00:08:36] Speaker 06:
Right.

[00:08:37] Speaker 04:
Let's get the idea out.

[00:08:39] Speaker 04:
Okay.

[00:08:39] Speaker 04:
Idea, I believe, is a thought or a concept.

[00:08:42] Speaker 04:
In the patent context, I think an idea would be most synonymous with a concept.

[00:08:49] Speaker 04:
An idea is most synonymous with a concept, whether a conception of something... An idea is something we have in our head, isn't it?

[00:09:01] Speaker 06:
It certainly is an idea.

[00:09:02] Speaker 06:
That's all it is, right?

[00:09:04] Speaker 06:
That's what an idea is, right?

[00:09:06] Speaker 06:
It has no physical manifestation as such.

[00:09:09] Speaker 04:
That is correct.

[00:09:10] Speaker 06:
What do you understand?

[00:09:11] Speaker 06:
I'm going to ask him all these same questions so he doesn't feel uncomfortable.

[00:09:15] Speaker 06:
What do you understand is the definition of abstract for purposes of understanding what an abstract idea is.

[00:09:26] Speaker 06:
This is essential to applying the Alice

[00:09:30] Speaker 04:
I think that is right.

[00:09:33] Speaker 04:
I think that is right.

[00:09:34] Speaker 06:
So how do you understand the meaning of abstract?

[00:09:37] Speaker 04:
Well, abstract is something that does not exist in the concrete world.

[00:09:42] Speaker 04:
Abstract is something that exists at a level that is not physical, I believe.

[00:09:49] Speaker 04:
And so when you have an abstract idea, not only is it in your head, but it is an idea that really is purposefully in your head.

[00:09:57] Speaker 04:
It is not something that you can locate in the physical world.

[00:10:03] Speaker 04:
I believe that is what Alice is trying to get at.

[00:10:08] Speaker 04:
When they talk about the fundamental building blocks or they talk about pre-existing business practices, those are the types of things that would be considered abstract ideas.

[00:10:18] Speaker 06:
So I take it your argument is that in claim one,

[00:10:23] Speaker 06:
Which was the patent that you preferred to look at?

[00:10:27] Speaker 04:
Claim one of the 984 on page 22.

[00:10:29] Speaker 06:
984 patent, right?

[00:10:31] Speaker 04:
Yes, sir.

[00:10:32] Speaker 06:
Your argument, I take it, is that there's a lot of physical in there.

[00:10:35] Speaker 04:
That is right.

[00:10:37] Speaker 04:
That is right.

[00:10:37] Speaker 06:
This claim one... What specifically is physical in claim one?

[00:10:42] Speaker 04:
Well, in claim one, you have to collect the data from particular network devices.

[00:10:48] Speaker 06:
Those network devices are named... Well, collecting data is not physical, but go ahead.

[00:10:52] Speaker 04:
Well, you need to locate, as has already been found by this court in the affirmative in the first opinion, you need to locate collectors.

[00:11:01] Speaker 04:
That is software close to the source of physical devices.

[00:11:04] Speaker 04:
and then retrieve raw data from those devices.

[00:11:08] Speaker 06:
Well what do you think the plurality of networked devices refers to?

[00:11:12] Speaker 04:
This is physical devices that exist on the internet and named in the limitation here.

[00:11:21] Speaker 06:
The plurality of information source modules?

[00:11:24] Speaker 04:
That is software that's physically located near the network devices.

[00:11:34] Speaker 06:
Routers, switches, firewalls.

[00:11:38] Speaker 06:
I think firewalls is probably not physical.

[00:11:41] Speaker 06:
At least not in the sense we're using it here, is it?

[00:11:44] Speaker 04:
It can be.

[00:11:45] Speaker 04:
A firewall is a combination of hardware and software that performs the function of being a firewall.

[00:11:51] Speaker 06:
Authentication servers.

[00:11:53] Speaker 04:
These are physical devices that exist on the internet.

[00:11:56] Speaker 04:
Routers.

[00:11:57] Speaker 06:
Netflow servers.

[00:11:58] Speaker 06:
Databases.

[00:12:00] Speaker 06:
Mail servers.

[00:12:01] Speaker 06:
Radius servers.

[00:12:03] Speaker 06:
domain name servers or any of those physical?

[00:12:06] Speaker 04:
All of those are physical devices that are geographically dispersed in the internet.

[00:12:11] Speaker 05:
The use of physical devices goes to step two of Bielski, right?

[00:12:16] Speaker 05:
The physical implementation?

[00:12:17] Speaker 04:
I think under DDR it was clear that the use of physical device was part of step two.

[00:12:24] Speaker 05:
Going back to the abstract idea of step one,

[00:12:29] Speaker 05:
If an idea is mentally held and abstract is something that's not concrete, then wouldn't I be able to say or anybody be able to point to any piece of software and say that's abstract?

[00:12:48] Speaker 04:
I don't believe so.

[00:12:50] Speaker 05:
Is this what we should be looking for to determine whether at the end of the line that we can say this is the idea,

[00:12:59] Speaker 05:
This software or this pen is directed towards something that somebody thought about a long time ago.

[00:13:08] Speaker 04:
Well, I think drawing the line has been a difficult process, or at least the cases seem to indicate that.

[00:13:16] Speaker 05:
So what do we draw the line when it comes to abstract idea?

[00:13:19] Speaker 05:
It seems that we can draw the line with physical implementation.

[00:13:24] Speaker 05:
Not only do you have physical items,

[00:13:30] Speaker 05:
the hardware and switches and all of that.

[00:13:33] Speaker 05:
You also have a physical implementation of data within those physical items.

[00:13:38] Speaker 05:
What about an abstract idea?

[00:13:39] Speaker 05:
Isn't everything abstract?

[00:13:43] Speaker 04:
I submit that it's not.

[00:13:44] Speaker 04:
I mean, I think under Alice

[00:13:46] Speaker 04:
looking at software, it is important to look at both steps of the test.

[00:13:51] Speaker 04:
And I believe our case is the right case to find that no, under both the first step, certainly under the second step, this software claims are not abstract.

[00:14:02] Speaker 04:
In the case of the 984, this is because you have physical devices that you have to park your software near.

[00:14:10] Speaker 04:
The patents name those devices.

[00:14:12] Speaker 04:
The patents then say you need to collect that data from those devices and process it in a very particular way, close to the source of those devices.

[00:14:20] Speaker 04:
This was a construction that this court affirmed in the last appeal.

[00:14:26] Speaker 04:
The processing must be geographically distributed close to the source.

[00:14:30] Speaker 04:
So we have left our minds, we have left the realm of just general concept or ideas, and now we're talking about something that really exists in the real world, in a geographically distributed architecture.

[00:14:44] Speaker 06:
There's some overlap between step one and step two, isn't there?

[00:14:47] Speaker 06:
I think that is... Let me ask you a question, Mr. Walden.

[00:14:50] Speaker 06:
It's a personal question.

[00:14:51] Speaker 06:
Are you an abstract idea?

[00:14:53] Speaker 04:
I am not an abstract idea.

[00:14:55] Speaker 06:
But the only way I know you're here

[00:14:58] Speaker 06:
is because I imagine you're here because I have an idea in my mind that there's some fella out there talking to me.

[00:15:05] Speaker 06:
run onto an abstract idea?

[00:15:07] Speaker 04:
Well, it's a great question.

[00:15:10] Speaker 04:
The transition from an idea to an abstract idea is, I think, a very good question.

[00:15:15] Speaker 04:
I can have an idea of you in my mind.

[00:15:19] Speaker 04:
It's not an abstract idea, though, I would say, because you exist.

[00:15:23] Speaker 04:
We have to trust that the physical world exists.

[00:15:28] Speaker 04:
And so if I have a concept for a car,

[00:15:31] Speaker 04:
for example, that's an idea, but it's not an abstract idea.

[00:15:36] Speaker 04:
If I have a concept for a distributed architecture to utilize devices on the internet in unconventional ways, and to make data records from that, that can then be pulled to a central location stored in a database, generate reports,

[00:15:53] Speaker 04:
et cetera, these have left the realm of the abstract, but we're now physically locating our claims and our patents in the real world.

[00:16:02] Speaker 04:
So we submit that under the first step of the Alice analysis, when you're looking at what the claims are directed towards,

[00:16:10] Speaker 04:
It's not always that they're directed towards an abstract idea, but sometimes, like here, they're directed towards something like a distributed architecture for collecting from network devices, using those devices in unconventional ways.

[00:16:23] Speaker 04:
That's not abstract.

[00:16:25] Speaker 04:
Second part of the test, though, we submit there is overlap, because again, the question becomes, is there anything new?

[00:16:32] Speaker 04:
Have you made new use of some old technology?

[00:16:37] Speaker 04:
Have you made the internet run better?

[00:16:39] Speaker 04:
and we submit again that that is the case.

[00:16:41] Speaker 04:
We submitted an expert declaration that explained in detail for all of our asserting claims under the second prong of the ALS test, why those claims

[00:16:51] Speaker 05:
Who's benefiting from you making the internet run better?

[00:16:58] Speaker 05:
Is it the network service providers?

[00:17:00] Speaker 04:
The network service providers are the immediate beneficiaries, but the public is the ultimate beneficiary.

[00:17:05] Speaker 04:
If you recall, in the mid-90s, the way that you got on the internet was dial-up.

[00:17:11] Speaker 04:
So you would get with AOL, and you would dial-up, and your service was provided that way, and you were essentially charged based on how long you had

[00:17:22] Speaker 04:
in your telephone hooked up to the Internet.

[00:17:25] Speaker 04:
But that did not allow service providers to understand their networks enough to provide the services and make money off of it by being able to bill for it.

[00:17:37] Speaker 04:
So by enabling service providers to monitor, to track usage of the Internet, to make unique use of that, it allows them to provide the services to the public.

[00:17:52] Speaker 01:
She looks at the preamble and there's just a method of reporting on the collection of usage and that's the abstract idea.

[00:18:09] Speaker 01:
Then we have the collection of communications from all of these sources, the filtering, the aggregating, the completing the records and so on, storing and reporting.

[00:18:20] Speaker 01:
What's so special about that?

[00:18:22] Speaker 01:
It seemed throughout the prior argument and here that the district judge was concerned that your principal argument is to the point at which this collection is made was what was novel or dispositive and that somehow didn't get into the claims.

[00:18:43] Speaker 04:
Well, we submit that it is true that sometimes detailed claims can boil down to, for example, intermediated settlement, as the Alice Court found from a fairly detailed claim.

[00:18:54] Speaker 04:
But when we submit the district court, the way the district court aired was in the way that it boiled these claims down.

[00:19:01] Speaker 04:
To boil the claim of one of the 984 to reporting on usage of information from a plurality of network devices.

[00:19:10] Speaker 04:
is we submit in direct contradiction to the court's earlier construction for the term completing in this claim to require a distributed architecture and not only that.

[00:19:23] Speaker 04:
the court had said that this was a key feature that distinguished these claims from the prior art.

[00:19:27] Speaker 04:
So to boil the claims down to a single feature that doesn't account for the distributed architecture we submit was inherent.

[00:19:36] Speaker 05:
Isn't that a problem that we have in the application of Section 101, that this boiling down, that eventually you can boil down everything to an abstract even as Judge Flegger demonstrated perhaps your abstract?

[00:19:51] Speaker 04:
I think it presents a problem, although I think this is... So what saves it then?

[00:19:57] Speaker 06:
Step two?

[00:19:58] Speaker 04:
I think it's both.

[00:19:59] Speaker 04:
I think, though, there are categories that are clearly abstract ideas.

[00:20:03] Speaker 04:
A business method is clearly an abstract idea.

[00:20:06] Speaker 04:
The court in DDR described others.

[00:20:09] Speaker 04:
Taking just a pure algorithm and implementing it on a generic computer, that's an abstract, that is abstract.

[00:20:17] Speaker 05:
In the case following yours, dealing with the lawnmower is, and there's a pen on that, on the lawnmower.

[00:20:24] Speaker 05:
Right.

[00:20:26] Speaker 05:
But the concept of cutting grass has existed for a long time.

[00:20:31] Speaker 05:
Is that an abstract idea?

[00:20:33] Speaker 05:
I would submit that it's not.

[00:20:34] Speaker 04:
I would submit that a lawnmower is a physical device, and therefore you can boil the claim down to the concept of a lawnmower.

[00:20:45] Speaker 04:
But I would still say that's an idea, but it's not an abstract idea.

[00:20:48] Speaker 06:
How about an invention for attaching one thing to another?

[00:20:52] Speaker 06:
Is that an abstract idea?

[00:20:55] Speaker 04:
At that level, I would say that would be an abstract.

[00:20:59] Speaker 04:
Pretty abstract.

[00:21:00] Speaker 04:
Attaching one thing to another.

[00:21:02] Speaker 04:
Attaching one thing to another.

[00:21:03] Speaker 04:
Because that's, again, I don't know in the real world.

[00:21:07] Speaker 06:
The first claim in that invention was for a hammer and a nail.

[00:21:13] Speaker 06:
Would that be patentable?

[00:21:16] Speaker 06:
I would submit that an invention for a hammer and a nail... This is an invention for attaching one thing to another because that's the abstraction.

[00:21:26] Speaker 06:
But the actual claim is for a hammer and a nail.

[00:21:30] Speaker 06:
That's just putting aside the possible problem of obviousness.

[00:21:38] Speaker 06:
Is that a patentable invention?

[00:21:40] Speaker 04:
I would say it is a patentable invention.

[00:21:43] Speaker 04:
Why?

[00:21:43] Speaker 04:
Under the first step,

[00:21:44] Speaker 04:
of the analysis, I would say that the claim is not directed towards attaching one thing to another, but instead it's directed towards a hammer and a nail.

[00:21:53] Speaker 06:
Oh, you would disagree with my characterization.

[00:21:57] Speaker 06:
But isn't it true that a hammer and a nail is for the purpose of attaching one thing to another, typically?

[00:22:02] Speaker 04:
That is the function that they perform.

[00:22:06] Speaker 04:
The question, I believe, becomes how do you claim it?

[00:22:09] Speaker 04:
If your claim is simply a method of attaching one thing to another,

[00:22:14] Speaker 04:
then that's going to be abstract.

[00:22:15] Speaker 04:
If your claim is to a hammer and a nail, then you've named physical devices, and I believe under 101, you would be satisfied.

[00:22:26] Speaker 04:
102 and 103 may have some problems.

[00:22:30] Speaker 01:
All right.

[00:22:30] Speaker 01:
Let's hear from Mr. Panjian.

[00:22:31] Speaker 01:
We'll save you rebuttal time, Mr. Weldon.

[00:22:33] Speaker 03:
Thank you.

[00:22:40] Speaker 07:
Good morning, Your Honors.

[00:22:41] Speaker 07:
May it please the Court, Brian Pandya, on behalf of the Appellee Open Net.

[00:22:46] Speaker 07:
I'd like to address some of the issues that were raised with AMDOC by also turning to the language of the patent claim.

[00:22:52] Speaker 07:
If we could turn to Claim 1 of the 065 patent, which appears on page 8 of our red brief, it's also at page A84 of the joint attendance.

[00:23:05] Speaker 06:
Why don't you like 984?

[00:23:07] Speaker 07:
Well, I like 984, and I'm happy to talk about that one as well.

[00:23:11] Speaker 07:
Since you put 984 on the table, why don't you stay with that one for the time being?

[00:23:16] Speaker 07:
OK.

[00:23:16] Speaker 07:
We'll start with the 984 patent.

[00:23:19] Speaker 07:
OK.

[00:23:19] Speaker 07:
Look at claim one of the 984 patents.

[00:23:22] Speaker 07:
The claim here, it's a method for recording on the collection of network usage information.

[00:23:26] Speaker 01:
That's just the preamble.

[00:23:28] Speaker 01:
That just tells you this is where we are, where we're not.

[00:23:32] Speaker 01:
hammering a nail, we're collecting network usage information.

[00:23:39] Speaker 01:
And then there's a whole long column of details.

[00:23:44] Speaker 07:
What is being claimed here is you're collecting network communications information from sources that already have existed before the patents.

[00:23:53] Speaker 07:
What's describing is the source of the data that then gets the next step filtered

[00:23:58] Speaker 07:
stored in a database output as a report.

[00:24:00] Speaker 01:
I mean if this was so abstract it seemed clear at least to the patent examiner that this method with all of its limitations was new, had not previously been practiced and that really in the entire argument it hasn't been shown otherwise.

[00:24:18] Speaker 01:
So we're now just looking at how it's claimed.

[00:24:22] Speaker 01:
Isn't that right?

[00:24:23] Speaker 01:
And that his claim too broadly, I gather, is what concerns Judge Brinkman.

[00:24:28] Speaker 07:
It is.

[00:24:28] Speaker 07:
The breadth of his claim is what concerns Judge Brinkman.

[00:24:31] Speaker 07:
That is to Alex's concern.

[00:24:32] Speaker 06:
Well, the breadth of the claim goes to obvious disproven, doesn't it?

[00:24:36] Speaker 06:
Or perhaps indefinite disproven.

[00:24:39] Speaker 06:
Why does it make it abstract?

[00:24:41] Speaker 07:
Because what it's doing is preempting the idea of taking

[00:24:44] Speaker 07:
We're going to take data from devices that already have existed, Amdocs, the specifications, that these are all generic or commercial devices, all which exist that Amdocs do not invent them.

[00:24:54] Speaker 01:
I think it's conceded that until these inventors came along, that hadn't been done.

[00:25:00] Speaker 01:
It was an unsolved problem, and they figured out how to conduct these complicated steps of electronics, wired, wireless, and all the rest of it, to put it together in a specific way,

[00:25:14] Speaker 01:
in order to achieve a new result, a long felt need.

[00:25:19] Speaker 01:
And again, and it seemed to me that the district judge appreciated that, but was concerned with the claims.

[00:25:28] Speaker 07:
She was concerned with the claims.

[00:25:30] Speaker 07:
The problem with these claims is what it describes as a source of data, which does not make an abstract idea less abstract describing a source of data.

[00:25:38] Speaker 06:
Good.

[00:25:38] Speaker 06:
What do you understand to be an idea?

[00:25:41] Speaker 06:
And what do you understand to be abstract?

[00:25:44] Speaker 07:
Well, I understand an abstract idea to be.

[00:25:46] Speaker 07:
It's a theory.

[00:25:46] Speaker 06:
Take them one at a time.

[00:25:48] Speaker 07:
An idea.

[00:25:49] Speaker 07:
An idea is something that's a theory.

[00:25:51] Speaker 07:
It's something I have in my mind.

[00:25:52] Speaker 07:
Something that can be expressed in simple terms on pencil and paper.

[00:25:57] Speaker 07:
An abstract idea is a concept.

[00:25:59] Speaker 07:
It's a theory.

[00:26:00] Speaker 07:
Putting together two data records, storing data in a database, that's why I understand an abstract idea.

[00:26:06] Speaker 05:
So at the end of the day, we can look at almost any software application and say it's abstract, correct?

[00:26:12] Speaker 07:
I wouldn't go that far.

[00:26:14] Speaker 07:
How far would you go?

[00:26:17] Speaker 07:
I would go just as far as I would go.

[00:26:19] Speaker 07:
If you have an idea that involves basic computing steps, putting together two data records, storing data in a database, putting together steps, simple, routine, conventional steps that existed before, the loophole that Alice Close and Bilsky was that you can't recite an abstract idea using

[00:26:38] Speaker 05:
existing computers using uh... general-purpose computers you can't use post solution but it didn't strike the use of all software uh... applications correct we do not contend that if we turn back to somewhere along the line there is software that is patent-eligible correct yeah i agree with that but what would you say is is it something more than what we had in ddr ddr claims were found patent eligible

[00:27:06] Speaker 07:
what would have to be found elsewhere but you have to give a specific solution.

[00:27:09] Speaker 07:
The problem with these claims, the 984 patent... Let's start with that.

[00:27:13] Speaker 05:
Isn't there a specific problem that the patent addresses is directed to?

[00:27:20] Speaker 07:
It does not.

[00:27:21] Speaker 07:
The issue that they're talking about is not what's reflected in the claims.

[00:27:25] Speaker 07:
The claims are incredibly broad.

[00:27:27] Speaker 07:
I mean, we look at claim one of the 065 patents, it's

[00:27:33] Speaker 06:
Why don't we ask the trial judge what she thought of these claims?

[00:27:37] Speaker 06:
And here's what she said.

[00:27:40] Speaker 06:
She said, claim one focuses on the concept of correlating two network accounting records to enhance the first record.

[00:27:51] Speaker 06:
That was her description of that patent.

[00:27:57] Speaker 06:
First of all, do you think that's a fair description?

[00:28:00] Speaker 07:
I think that's fair.

[00:28:01] Speaker 06:
And do you think that's pretty abstract?

[00:28:03] Speaker 07:
I think that is pretty abstract.

[00:28:05] Speaker 07:
It's just like Digitech, where you're taking two pieces of data, putting them together to make a new record.

[00:28:10] Speaker 07:
Frankly, it's like allies.

[00:28:11] Speaker 06:
Let me try another one.

[00:28:13] Speaker 06:
If I describe the same patent as all of these patents claim parts of a system that is designed to solve an accounting and billing problem faced by network service providers, would you say that's abstract?

[00:28:32] Speaker 06:
an accounting and billing problem faced by network service providers.

[00:28:37] Speaker 06:
It's pretty specific, isn't it?

[00:28:39] Speaker 07:
It adds a degree of specificity, but not enough because you're still taking the same idea of putting together two pieces of data to generate a new data record.

[00:28:47] Speaker 07:
That is what's being claimed.

[00:28:48] Speaker 07:
That's the problem.

[00:28:49] Speaker 07:
It's not addressing a new protocol.

[00:28:51] Speaker 07:
It's not addressing a new algorithm.

[00:28:54] Speaker 07:
It's taking together two pieces of data, putting the data together, and

[00:28:59] Speaker 07:
putting a new record.

[00:29:00] Speaker 07:
It's a method of organizing data.

[00:29:02] Speaker 07:
That is the problem with these claims.

[00:29:05] Speaker 06:
So billing records could never be an invention dealing with a method to solve an accounting and billing problem faced by network service providers.

[00:29:22] Speaker 06:
That could never be a patentable invention.

[00:29:26] Speaker 07:
It would be very difficult based on the disclosure here, based on how these claims are drafted.

[00:29:31] Speaker 06:
I'm talking about step one of ALIS.

[00:29:36] Speaker 06:
Could that be a patentable invention?

[00:29:38] Speaker 07:
It would be very difficult under step one of ALIS.

[00:29:41] Speaker 06:
Because it's too abstract.

[00:29:42] Speaker 07:
It's too abstract.

[00:29:43] Speaker 07:
It's an economic practice.

[00:29:44] Speaker 07:
Taking two pieces of data, putting them together.

[00:29:47] Speaker 07:
It's a fundamental idea.

[00:29:48] Speaker 07:
It's a concept.

[00:29:49] Speaker 07:
That's the problem.

[00:29:50] Speaker 06:
How about a method for

[00:29:55] Speaker 06:
curing illness, a method for curing.

[00:29:59] Speaker 06:
I want an invention that's a method for curing illness.

[00:30:02] Speaker 06:
Too abstract.

[00:30:03] Speaker 07:
It is too abstract.

[00:30:05] Speaker 06:
So any drug on the market would not be patentable because they're all methods for curing illness.

[00:30:13] Speaker 07:
Is that right?

[00:30:14] Speaker 07:
That's not right because the difference with the drug is that you're claiming a chemical compound, you're claiming a formulation, you're claiming something that's specifically tied

[00:30:23] Speaker 07:
to a structure.

[00:30:24] Speaker 07:
In your example, to me that sounds more like ARIOS.

[00:30:27] Speaker 05:
How is this not tied to the problem that network service providers had in compiling adequate data for which to build customers?

[00:30:40] Speaker 07:
Because nothing in the claim is tied to the problem.

[00:30:43] Speaker 07:
What the claim is, if you look at claim one of the 065, it's computer code for receiving a first record from a first source.

[00:30:50] Speaker 07:
Correlating the first record with the second record

[00:30:53] Speaker 07:
using the second record to enhance the first record.

[00:30:56] Speaker 07:
That's all that's claimed.

[00:30:57] Speaker 07:
That's it.

[00:30:58] Speaker 06:
Routers, switches, firewalls, authentication servers, web hosts.

[00:31:04] Speaker 06:
What are all of that?

[00:31:06] Speaker 07:
That is the source of the data.

[00:31:08] Speaker 07:
It's all part of the claim.

[00:31:10] Speaker 07:
That's saying where you're collecting the data from, but that's just describing how to implement the abstract idea.

[00:31:15] Speaker 01:
But if in fact it had not previously, just to go back to the direction that Sue was trying to figure out where the barrier was being, again looking at the 984, there the draftsman has claimed computer code for each of these steps.

[00:31:34] Speaker 01:
So that at least that's something tangible.

[00:31:38] Speaker 01:
I'm looking at

[00:31:39] Speaker 01:
computer program products, got a computer code for collecting, computer code for filtering and aggregating.

[00:31:47] Speaker 01:
Of course, I appreciate that if the codes were here, we'd have a ten-foot pile of paper.

[00:31:52] Speaker 01:
But even so, how does one, accepting the premise that this was an unsolved problem, does it solve the problem?

[00:32:02] Speaker 01:
You knew you had to collect

[00:32:04] Speaker 01:
information from all of these sources, put them together, and correlate them, and when you solve that problem.

[00:32:12] Speaker 01:
So here was an unsolved problem.

[00:32:14] Speaker 01:
Here was an inventor that solved the problem.

[00:32:18] Speaker 01:
And the district court said, well, that's very interesting, but even you haven't claimed it adequately specifically, so again, putting, reciting computer code, at what stage

[00:32:34] Speaker 01:
Looking at all of the details that are here would have been needed in the claims at the point, the argument brief, that what made it work was the stage, the point at which the information was collected and that that made it feasible.

[00:32:50] Speaker 01:
Is that a fair statement of what seems to me to be an extraordinarily complex and I gather valuable procedure?

[00:32:59] Speaker 01:
So where from your interaction with the trial judge

[00:33:03] Speaker 01:
is your sense that she felt there was an inadequacy and undue breadth in the claims.

[00:33:12] Speaker 07:
Here's what's trouble, Judge Merrigan, with the issue of preemption.

[00:33:14] Speaker 07:
What you're taking in the 984 pattern we were looking at.

[00:33:17] Speaker 07:
Yeah, looking at 984.

[00:33:19] Speaker 07:
What it does is it gathers information, it processes the information, puts in a database, outputs a report.

[00:33:26] Speaker 01:
How come no one did it before?

[00:33:27] Speaker 01:
I think everyone agrees this is a solution to an existing problem.

[00:33:33] Speaker 07:
Well, people have been using databases for years.

[00:33:38] Speaker 06:
Every invention preempts, that gets patented, preempts something.

[00:33:43] Speaker 06:
It preempts the claim, the specific invention claimed.

[00:33:48] Speaker 06:
So the fact that it preempts something is irrelevant.

[00:33:51] Speaker 06:
The question is, does it preempt some basic principle?

[00:33:55] Speaker 06:
or some basic idea that blocks the rest of the world from ever dealing with that problem.

[00:34:02] Speaker 05:
Or does it preempt a field of use?

[00:34:06] Speaker 07:
If it preempts a field of use, that's not enough to save the claim.

[00:34:09] Speaker 07:
The problem with this claim is that it speaks, it talks about all these devices which already existed taking existing data

[00:34:15] Speaker 07:
than performing routine and conventional steps and dressing the claim up that way is not under ALICE, under Digitech, under Internet patents, under SAP Versana.

[00:34:25] Speaker 07:
It's not sufficient to get the claims passed out.

[00:34:29] Speaker 07:
That might have worked post-Bilkey.

[00:34:31] Speaker 07:
That does not work post-ALICE.

[00:34:33] Speaker 07:
I mean, the claim here is, it almost reminds me of claimants.

[00:34:35] Speaker 05:
Where do you see the problem with a patent?

[00:34:38] Speaker 05:
Step one or two, or the combination of both?

[00:34:41] Speaker 07:
It's an abstract idea under step one, and there's nothing in, there's no specificity in it.

[00:34:46] Speaker 05:
But almost every software patent, you can say it's about collection of data, and that's an abstract idea.

[00:34:53] Speaker 05:
So would you say that all software patents are not eligible?

[00:34:57] Speaker 07:
I would not.

[00:34:59] Speaker 07:
The problem with these claims is they do not make the network function in a different way.

[00:35:03] Speaker 06:
Why aren't they all abstract ideas?

[00:35:05] Speaker 06:
That's the question.

[00:35:07] Speaker 07:
Many software patents are abstract ideas today.

[00:35:10] Speaker 05:
But if they're all about collecting data, manipulating data, then under your view, they're all not subject to patentability.

[00:35:20] Speaker 07:
Unless you do something more than a pending routine and conventional step.

[00:35:24] Speaker 06:
Step two.

[00:35:25] Speaker 07:
We're talking about step one.

[00:35:27] Speaker 07:
uh... from the main part of that we're talking about collecting data proximate question of how you articulate the aspect idea it's correct if we look at the claims the way he can't complain they haven't been typically drawn packet-based network they haven't been typically drawn

[00:35:44] Speaker 07:
to solving a unique problem, what all is claimed is taking data from a first source, data from a second source, correlating those records to make a new record, taking data from existing devices on the network.

[00:35:56] Speaker 05:
Isn't it taking disparate pieces of data and collecting them?

[00:36:00] Speaker 05:
It's not taking an invoice here, an invoice there, invoice there.

[00:36:04] Speaker 05:
It's taking this piece of electronic information, which may only be part of an invoice, and taking another piece of these packets that are sent out,

[00:36:15] Speaker 05:
getting them at the source, at the source of their use, and then bringing them together to form a single report in a distributed fashion.

[00:36:26] Speaker 05:
I mean, isn't that a little bit more a complex description of this patent, other than to say it's simply about collecting information?

[00:36:36] Speaker 05:
It's more than that.

[00:36:37] Speaker 05:
It's more than just collecting information, isn't it?

[00:36:40] Speaker 07:
It's not, that's not what's claimed, that may have been the intent, but what's claimed here is taking two pieces of data, whether you put the data together close to where the data was gathered, far away or somewhere in between doesn't make the idea of putting together two pieces of data.

[00:36:53] Speaker 01:
But that's not quite fair.

[00:36:55] Speaker 01:
It's collecting data from sources, disparate sources, in a way that had not been done before.

[00:37:05] Speaker 07:
What's being claimed here is taking data from a first source and a second source.

[00:37:09] Speaker 07:
That's what's being claimed.

[00:37:10] Speaker 01:
The concern I gather of the district judge was that there was more insufficient specificity in the claims.

[00:37:19] Speaker 01:
Is that your perception?

[00:37:20] Speaker 07:
That was my perception.

[00:37:22] Speaker 07:
I think Judge Brinkman felt this case was like Digitech.

[00:37:26] Speaker 07:
It was like other cases where you took data, even if the data had some specificity, you're still putting together pieces of data.

[00:37:32] Speaker 07:
That is what's being claimed here.

[00:37:34] Speaker 07:
All of these devices, the specification admits that it exists on a network.

[00:37:38] Speaker 07:
What Amdocs is doing here with these claims, we look at claim one, taking data from a first source and a second source to correlate and enhance the record.

[00:37:46] Speaker 07:
Claim one of the 984 patents.

[00:37:48] Speaker 06:
Storing the plurality of data records in a database, allowing the selection of one of the plurality of reports for reporting purposes, submitting queries to the database,

[00:38:00] Speaker 06:
utilizing the selected reports for retrieving information on the collection of the network usage information from the network devices and outputting a report based on the queries.

[00:38:14] Speaker 06:
That's all part of the claim.

[00:38:16] Speaker 07:
That is all part of the claim.

[00:38:17] Speaker 06:
That's describing a database.

[00:38:18] Speaker 06:
Do we just ignore that and say, ah, that's not important?

[00:38:21] Speaker 06:
What you were doing was collecting data.

[00:38:23] Speaker 07:
What that is is insignificant post-solution activity.

[00:38:26] Speaker 07:
That's describing a database.

[00:38:27] Speaker 05:
But that's more than what happened in Digitech, too.

[00:38:31] Speaker 07:
Well, but that's the claim one would be like would be like ultra-mercial or can give a lot of steps that describe what it means to put a data in a database.

[00:38:38] Speaker 06:
Would you agree that the idea of an abstract idea is abstract?

[00:38:49] Speaker 06:
In this case... Would you agree?

[00:38:51] Speaker 06:
Would you concede that much for me?

[00:38:54] Speaker 07:
It's difficult.

[00:38:55] Speaker 02:
It's a difficult question.

[00:38:56] Speaker 06:
You haven't really told us what an abstract

[00:39:00] Speaker 06:
idea is, but you notice the Supreme Court hasn't either.

[00:39:04] Speaker 07:
But this is an issue the Supreme Court has been struggling with, but what the Supreme Court... And you know what?

[00:39:09] Speaker 06:
They'll continue to struggle with it because the idea of an abstract idea is abstract.

[00:39:16] Speaker 06:
That's our problem, right?

[00:39:19] Speaker 02:
That is our... That's the difficulty here.

[00:39:22] Speaker 06:
And Judge Brinkmeyer, Brinkma,

[00:39:26] Speaker 06:
by hooking this decision to step one has created a big problem for us, right?

[00:39:37] Speaker 07:
Well, she has not.

[00:39:38] Speaker 07:
This decision falls squarely within the other cases that have come down since Alice, where if you take basic steps, collecting data, to put together two pieces of data, collecting data from existing sources to store it in a database,

[00:39:50] Speaker 07:
That is an abstraction.

[00:39:51] Speaker 07:
That's a concept.

[00:39:52] Speaker 07:
I mean, the problem, what troubled here was these claims don't say how to do it.

[00:39:56] Speaker 05:
But that's not fair.

[00:39:58] Speaker 05:
Yeah, it's not fair.

[00:39:59] Speaker 05:
It does say that it does it in a distributive fashion, and the ultimate, and it is claimed that you produce a single report.

[00:40:06] Speaker 05:
And it's a single report that's what was lacking before this invention.

[00:40:12] Speaker 05:
But it's still... At that point,

[00:40:15] Speaker 05:
When the network service provider now has a single report that indicates the amount of usage and who's doing the usage, that is not an abstract idea, is it?

[00:40:28] Speaker 07:
That is still an abstract idea.

[00:40:30] Speaker 07:
How can it be?

[00:40:31] Speaker 05:
To begin with, it's a piece of paper.

[00:40:34] Speaker 05:
It's specific information dealing with specific usage, specific charges, specific dollar amounts.

[00:40:41] Speaker 05:
You say that's an abstract idea?

[00:40:43] Speaker 07:
It is.

[00:40:44] Speaker 07:
It's a bill which has been generated by telephone companies for decades.

[00:40:48] Speaker 07:
It's an abstraction.

[00:40:50] Speaker 05:
These bills have not been generated for decades.

[00:40:52] Speaker 05:
They've only been generated since the advent of the internet and because of the internet.

[00:40:57] Speaker 05:
There's no need to generate these type of bills before then.

[00:41:01] Speaker 07:
That is not what's being claimed here.

[00:41:02] Speaker 07:
What's being claimed is taking two pieces of data.

[00:41:05] Speaker 07:
Even if that is the useful end of the invention, that's not what's being claimed here.

[00:41:10] Speaker 07:
The problem that troubled Judge Brinkman and troubled us too was the way these patents are claimed, the way they're drafted, using existing devices in a conventional, predictable way to put together pieces of data.

[00:41:24] Speaker 05:
uh... i mean to the claims described it's right they described what they've tried to tell you what to do you know how to do it if you apply and use conventional methods but yet your application results in uh... in uh... innovation then that we've all the conventional and well-known applications problem doesn't

[00:41:49] Speaker 07:
I don't think it does.

[00:41:50] Speaker 07:
We talked about Digitech a few minutes ago.

[00:41:52] Speaker 07:
There was no question there that taking together the two pieces of chromatic characteristic information, spatial characteristic information, was new and improved the translation of digital images, but it still is putting together pieces of data

[00:42:07] Speaker 07:
And I think in all these cases that have come before the court where patents have been invalidated under section 101, there has been an argument that their invention was valuable.

[00:42:16] Speaker 06:
It's a plague on the patent system nowadays.

[00:42:19] Speaker 06:
Almost every other case comes in on a 101 basis.

[00:42:24] Speaker 07:
I think that the plague was that the patent office allowed too many patents, particularly in the 1990s, that should never have been allowed in the first place.

[00:42:31] Speaker 01:
So here we've got, I'm looking at claim 15.

[00:42:35] Speaker 01:
It's got details, A through S.

[00:42:37] Speaker 01:
The periodically determining whether the network devices are currently licensed is detailed.

[00:42:46] Speaker 01:
By the time you get to this specificity, you certainly are removed from abstraction.

[00:42:53] Speaker 01:
There may be other problems.

[00:42:55] Speaker 01:
But once you have the computer capability by setting it up in this way of collecting the data from all of the sources and putting them together, then it's easy to periodically see if something or other is licensed.

[00:43:07] Speaker 01:
aren't we beyond abstraction?

[00:43:11] Speaker 01:
One of the things that I didn't see in the district court's opinion, although it may have been discussed during the argument, was whether these steps A through S, for example, were in the prior art.

[00:43:24] Speaker 01:
In order to then, all you need is an ingenious programmer to put them together.

[00:43:30] Speaker 01:
But somewhere, there was a line of abstraction, it seems to me, that was crossed, which takes us to

[00:43:37] Speaker 01:
a number of areas of potential invalidity, I suppose, that the trial judge didn't reach.

[00:43:44] Speaker 01:
I think that's what concerned this court when the case was here before.

[00:43:49] Speaker 01:
And I am not persuaded that that concern was met.

[00:43:55] Speaker 07:
Well, in terms of your first question, what were the elements of the priority?

[00:43:58] Speaker 07:
We took a look at the specification of the patent.

[00:44:01] Speaker 01:
Was that discussed at the district court, the priority?

[00:44:09] Speaker 07:
It was discussed during the law argument that the specifications talk about every device here.

[00:44:15] Speaker 07:
It's a generic or a commercially available device.

[00:44:18] Speaker 07:
We look at A39, A40 of the 9A4 specification.

[00:44:24] Speaker 07:
I mean, what the specification describes says the gatherers are any hardware and or software that gathers data.

[00:44:30] Speaker 01:
Of course, every device, every mechanical device, I like to use the example you say, I claim a method of increasing the gasoline efficiency of a carburetor.

[00:44:43] Speaker 01:
You could say that's, whether you call it abstract or what else, and then you put a whole bunch of mechanical pieces together, none of which is new, but it's the way they're

[00:44:54] Speaker 01:
collected and used that's new, but we're no longer talking about abstraction, so why is this any different?

[00:45:02] Speaker 07:
Well, if we take your example, if you were to claim a method of improving a carburetor in a car, and you say you improved the carburetor by making it more efficient, by saying this is what we want to do, this is the output,

[00:45:14] Speaker 07:
That probably would be an abstract idea.

[00:45:16] Speaker 01:
It certainly wouldn't do you any good.

[00:45:18] Speaker 07:
It wouldn't do you any good.

[00:45:19] Speaker 01:
Whatever you call it.

[00:45:20] Speaker 01:
And so here we have a preamble, which is a method of collecting data so you can bill the user.

[00:45:27] Speaker 01:
And that seemed to be, from what the district court wrote, where she stopped.

[00:45:33] Speaker 07:
I don't agree with that.

[00:45:35] Speaker 07:
She looked at, in the first step, you look at the claims as a whole.

[00:45:37] Speaker 07:
In the second step, she considered and

[00:45:40] Speaker 07:
recognized that every step here was using existing hardware, existing software to perform routine conventional steps, storing data in a database, outputting a record from a database, putting together two pieces of data.

[00:45:55] Speaker 07:
Just because you append a number of routine conventional steps to a claim, that doesn't make the idea less abstract.

[00:46:02] Speaker 07:
That doesn't get you over the second hurdle of the ALIC test.

[00:46:06] Speaker 07:
what Judge Brinkmore quickly recognized the essence of the claim here.

[00:46:09] Speaker 07:
She noted that the distributed architecture is very broad.

[00:46:12] Speaker 07:
The specification acknowledges that.

[00:46:15] Speaker 07:
We talked about the plurality of layers in the 984 pattern, but the specification says that 839 layers can be physical or they can be applications.

[00:46:24] Speaker 07:
They can be conceptual.

[00:46:26] Speaker 06:
Is it Pandya or Panda?

[00:46:29] Speaker 06:
Pandya.

[00:46:30] Speaker 06:
Mr. Pandya, I gotta give you credit.

[00:46:33] Speaker 06:
I thought the description of this patent as a system that is designed to solve an accounting and billing problem faced by network service providers was not abstract.

[00:46:47] Speaker 06:
But you wisely argued it was, because that's her description from the earlier case, isn't it?

[00:46:53] Speaker 06:
Did you recognize that?

[00:46:56] Speaker 06:
I'll take a compliment.

[00:47:01] Speaker 06:
That's an accurate description.

[00:47:03] Speaker 06:
of what that, if you're going to try to do a one sentence description of this invention, there's nothing abstract about it.

[00:47:11] Speaker 06:
That's what she thought in her first opinion that came up before on the claim construction issues that this case sent back.

[00:47:20] Speaker 06:
But then in this later case, she changed her view apparently and came up with that very abstract description.

[00:47:28] Speaker 06:
I don't know why she did that.

[00:47:30] Speaker 06:
But you at least argued both were abstract.

[00:47:33] Speaker 06:
So you're consistent.

[00:47:34] Speaker 06:
Take the cards.

[00:47:35] Speaker 07:
Thank you.

[00:47:38] Speaker 07:
So the problem with these claims is that the fundamental problem here is they speak in functional terms.

[00:47:44] Speaker 07:
They speak in generic terms, collecting data, putting data together.

[00:47:47] Speaker 07:
All the devices, the source of data does not make an idea abstract.

[00:47:52] Speaker 07:
That describes the source of the data.

[00:47:54] Speaker 07:
Like in the cyber source case that was before this court.

[00:47:57] Speaker 07:
Amdocs talks about solving a packet-based problem

[00:48:00] Speaker 07:
But packet-based networks aren't claimed.

[00:48:02] Speaker 07:
You can't read limitations in from the specification to narrow a claim.

[00:48:07] Speaker 07:
And even Dr. Zagura, the problem with her declaration was that she may or may not have accurately described internet billing, but that's not what's being claimed.

[00:48:16] Speaker 07:
AMDOT is making arguments that go beyond the scope of what was actually claimed.

[00:48:20] Speaker 07:
And just as Judge Brinkham recognized, these claims were broad, they were preemptive, they were abstract.

[00:48:25] Speaker 07:
That is why they were held invalid and why we ask that that decision be affirmed.

[00:48:31] Speaker 01:
Okay.

[00:48:32] Speaker 01:
Thank you.

[00:48:35] Speaker 01:
Mr. Weldon, three minutes.

[00:48:41] Speaker 04:
Thank you.

[00:48:43] Speaker 04:
Your Honor, Amdocs agrees that the idea of an abstract idea is itself abstract.

[00:48:50] Speaker 04:
That doesn't end the inquiry though, we think, because there are some easy categories, and we believe this is one of those easy categories.

[00:49:00] Speaker 04:
This is a technological problem that was presented by the internet.

[00:49:05] Speaker 04:
The MDOT's patentees claimed a technological solution to that technological problem, a problem unique to the internet and a solution that was also unique to the internet.

[00:49:17] Speaker ?:
Excuse me.

[00:49:19] Speaker 04:
The District Court, in its first opinion, there's another quote that's probably worth reading.

[00:49:25] Speaker 04:
District Court found in its first opinion, particularly because it is the feature that distinguishes the patented system from pre-existing technology, the distributed processing of network records is a key component of the 065, 510, and 984 patents.

[00:49:41] Speaker 04:
That was a finding that the District Court did not make in its second opinion.

[00:49:46] Speaker 04:
Each time,

[00:49:47] Speaker 04:
The district court found that the abstract idea, four different abstract ideas for four different patents, and each time the court did neglect it to note its earlier opinion, which grounded these claims, these software claims, in the real world.

[00:50:03] Speaker 01:
Because the thing that makes it work is not in the claims.

[00:50:07] Speaker 01:
That seems to be the problem.

[00:50:11] Speaker 04:
Well, we submit that this is in the claims.

[00:50:13] Speaker 04:
I mean, the 984 Council for Open Net claims these patent claims are not directed towards the internet, but yes they are.

[00:50:22] Speaker 04:
The 984 patent

[00:50:23] Speaker 04:
explicitly names those devices on the internet.

[00:50:28] Speaker 04:
The radio servers, proxy servers, routers, those are packet-based network devices.

[00:50:34] Speaker 04:
This is a claim that is very much grounded in this technology.

[00:50:39] Speaker 04:
And it's not so broad.

[00:50:41] Speaker 04:
It explains how to collect, where to collect, where to process that data, how to process that data.

[00:50:50] Speaker 01:
At least your argument is that when it's collected is the difference.

[00:50:54] Speaker 04:
Well, it's a matter of where it's collected, collecting in real time, processing the data close to the source of the collection.

[00:51:03] Speaker 04:
This accounts for the transitory nature of the information that comes over the internet.

[00:51:10] Speaker 04:
Mr. Pandia talked about the 065 claim one.

[00:51:13] Speaker 04:
But that claim, though written somewhat broader than the 984, still requires distributed enhancement, enhancement close to the source of the collection from these network devices in an internet hack-and-based system.

[00:51:27] Speaker 04:
That was the decision of the district court in the first case that was affirmed by this court.

[00:51:32] Speaker 06:
Even if we were to agree with you, you still have some hurdles to get over, don't you?

[00:51:38] Speaker 06:
Like questions of obviousness, indefiniteness, and so on.

[00:51:42] Speaker 06:
As I understand the first, I wasn't part of the panel in the first case, but as I understand it, it was claim construction and infringement.

[00:51:51] Speaker 06:
That is correct.

[00:51:53] Speaker 06:
So we've never actually got to 102, 103, or 112.

[00:51:56] Speaker 04:
That is because the district court found, we haven't had a trial yet, but there were summary judgment motions, and the district court found that these claims were not invalid under 102 or 103 as a matter of summary judgment determination.

[00:52:13] Speaker 04:
The reason is because OpenNet has not set forth prior art that actually creates records in a packet-based system such as this.

[00:52:24] Speaker 04:
This was truly the first time that somebody had said, let's go out to these network devices, these routers, switches, firewalls, et cetera, and use them in unconventional ways.

[00:52:36] Speaker 04:
Let's collect raw data that here before had not been collected and used in this way, and let's use it in this new and unique way.

[00:52:43] Speaker 04:
And the reality is that this is valuable software.

[00:52:48] Speaker 06:
Those issues are not now, before us.

[00:52:51] Speaker 04:
The point I'm making only is that this is a new solution that has value, we believe, satisfies 101, 102, 103.

[00:53:00] Speaker 04:
Okay.

[00:53:01] Speaker 01:
Thank you.

[00:53:02] Speaker 01:
Thank you.

[00:53:03] Speaker 01:
Thank you both.

[00:53:05] Speaker 01:
Casey's taking on this mission.