[00:00:53] Speaker 01:
Our next case is number 1708, Barron v. Scavenger, Inc., Mr. Fine.

[00:01:04] Speaker 03:
Good morning.

[00:01:04] Speaker 03:
May it please the Court, David Fine, for the appellant, Mr. Barron, who is the inventor of Patent 873.

[00:01:11] Speaker 03:
With the Court's permission, I'll reserve three minutes for rebuttal.

[00:01:14] Speaker 03:
The single issue before the Court is whether it was error for the District Court to find an undisputed fact

[00:01:22] Speaker 03:
that a cell phone with a Level Up application is not a transaction terminal.

[00:01:28] Speaker 01:
In and of itself?

[00:01:30] Speaker 01:
Is not one.

[00:01:31] Speaker 01:
Is your contention that the phone in and of itself is a transaction terminal?

[00:01:37] Speaker 01:
No, your honor.

[00:01:39] Speaker 01:
No.

[00:01:39] Speaker 03:
The contention is that the cell phone, the Level Up scanner, and the merchant point of sale are the three devices that combine

[00:01:49] Speaker 03:
form the transaction terminal as contemplated by the patent.

[00:01:53] Speaker 01:
Well, how does that impose liability on Scavenger?

[00:01:58] Speaker 01:
Is the idea that they're inducing infringement?

[00:02:00] Speaker 01:
Who's infringing?

[00:02:02] Speaker 03:
The idea, the allegation is that the method that Scavenger, that Level Up employs.

[00:02:09] Speaker 03:
Who's infringing the method?

[00:02:10] Speaker 03:
Level Up is, Your Honor.

[00:02:13] Speaker 03:
By utilizing the method that they do, all that the patent

[00:02:17] Speaker 03:
the patent defines or describes in specification to the transaction terminal as the place where a user is performing a transaction.

[00:02:25] Speaker 03:
And if you look, I think it's helpful to look in the diagrams, the diagrams in the patent, and specifically the appendix at page 38, where there's a depiction of an embodiment of this invention that depicts the transaction terminal

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This is the depiction of the financial services network.

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And then you'll see in that diagram, the transaction terminal is one element of how the method is comprised.

[00:02:59] Speaker 01:
How is Scavenger performing the method?

[00:03:03] Speaker 01:
I mean, it may supply the cell phone app and the scanner, but it doesn't supply the point of sale terminal.

[00:03:15] Speaker 03:
No, it is not, your honor.

[00:03:16] Speaker 03:
But I submit that the fact that the Level Up has, through its arrangements with these various merchants, provided the ability for these merchants to sign on with the Level Up application, which results in this method whereby the user can then, with its cell phone, with the scanner, and with the merchant's POS, point of sale device combined, that creates the

[00:03:44] Speaker 03:
place where the transaction is taking place.

[00:03:46] Speaker 03:
If you look at the language in the patent as illustrative of what the transaction terminal is supposed to be, and my brother has picked up on this in the brief, they use the terms ATM and Merchant's POS are repeatedly used as illustrative of what the transaction terminal might be.

[00:04:09] Speaker 03:
The only limiting language in the patent is that the transaction terminal be the place where the transaction is performed.

[00:04:18] Speaker 03:
So if Level Up is providing the platform for this transaction to be performed by virtue of supplying a user with a application that they can purchase and download onto their cell phone, can access through a PIN number,

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and then can enter information as if it were an ATM or a point-of-sale device.

[00:04:42] Speaker 03:
And in fact, many point-of-sale devices are now nothing more than computers and or... But Level Up's not performing the message, is it?

[00:04:51] Speaker 03:
Well, I respectfully believe they are, in that it's Level Up that is... I guess the point is,

[00:05:00] Speaker 00:
Level Up doesn't own the point of sale terminal.

[00:05:04] Speaker 00:
It's the merchant that owns the point of sale terminal.

[00:05:07] Speaker 03:
Correct, Your Honor, and I'd suggest respectfully that within the language of the patent, there's no limitation that the potential infringer need own the transaction terminal.

[00:05:18] Speaker 03:
The fact is that what this patent gets at is a way, it's a unique method to get at what historically was a

[00:05:28] Speaker 03:
an innocuous financial transaction that a user is performing and allow a third party to communicate with that user messages independent of that transaction.

[00:05:39] Speaker 03:
So beyond just a simple receipt that a user receives for his or her financial transaction.

[00:05:45] Speaker 01:
So what is the message here that's independent of the transaction?

[00:05:47] Speaker 03:
It's the loyalty notifications, it's the solicitations.

[00:05:50] Speaker 03:
So it's the idea, quite frankly, behind the mobile pay application platform in that

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A user such as any individual performs an innocuous financial transaction at an ATM at a merchant point of sale with his or her cell phone in conjunction with the level up apparatus.

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Independent from that transaction, that user then receives a message such as a loyalty notification, a coupon, any type of solicitation that otherwise was not able to be sent

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to this user.

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And that's the motivation for these merchants to sign on with a platform such as Level Up, is that it allows them the ability to place targeted solicitations of users as a result of that to users, as a result of those users performing what was otherwise an independent financial transaction.

[00:06:51] Speaker 00:
Isn't there something in your specification that says the whole point of

[00:06:55] Speaker 00:
the invention in the 873 patent was to deliver messages to customers that didn't have cell phones?

[00:07:03] Speaker 03:
There is an embodiment reference in that patent that talks about reaching folks who are offline.

[00:07:09] Speaker 03:
That is correct.

[00:07:09] Speaker 00:
Right.

[00:07:10] Speaker 00:
And that's why this is such a great invention because you can now transmit messages to the customer to the transaction terminal because they don't have a cell phone.

[00:07:22] Speaker 03:
I would suggest, Your Honor, respectfully that that embodiment is one of many embodiments listed in the specifications of the patent and is not meant to be limiting on the other embodiments.

[00:07:36] Speaker 03:
In fact, if you look at the patent, the paragraph immediately preceding the description of that particular embodiment, reaching users who do not have access to the internet or cell phone, immediately preceding that paragraph, there's language talking

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discussing the fact that there are multiple embodiments of this invention and one is not meant to be limiting on another.

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For example, here is one embodiment and that is to reach folks who do not have the ability, who are offline.

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But then the specification goes on and discusses multiple other embodiments addressed to reach folks who in fact are online.

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I would like to briefly, if I may,

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address the procedural history in this case.

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This summary judgment motion was filed 10 days after the initial pleadings closed.

[00:08:33] Speaker 01:
Let me ask you before you do that.

[00:08:36] Speaker 01:
You make something in your brief about this tip information being communicated by the mobile phone, but I don't understand how

[00:08:48] Speaker 01:
that communication is over a secure financial network.

[00:08:54] Speaker 01:
It's not, right?

[00:08:55] Speaker 03:
Well, it's over the same network that the cell phone communicates that sends the QR code to the scanner.

[00:09:05] Speaker 01:
But the answer is it's not over a secure financial network, right?

[00:09:09] Speaker 01:
No, no.

[00:09:12] Speaker 03:
The answer is no, it's not over a secure financial network.

[00:09:17] Speaker 03:
OK.

[00:09:19] Speaker 03:
The entire transaction is taking place, I would argue, I would submit, and again, refer the court back to page 38 of the... The secure financial network is to the point of sale term, right?

[00:09:29] Speaker 03:
Correct, correct.

[00:09:31] Speaker 03:
But I would also, Your Honor, submit that that is not a limitation, that's reading a limitation into the patent, that the transaction terminal wherein the transaction is taking place

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could encompass elements that are within and without the secure financial network.

[00:09:53] Speaker 03:
The point being that the message being received is within the secured network and is sent back to the secured network.

[00:10:01] Speaker 03:
Very quickly, on the issue of procedural history, the appellant agreed to the disputed facts, to the facts submitted by

[00:10:16] Speaker 03:
level up because those were the facts that were available.

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Those were the facts that they were known to the appellant at the time.

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This was very, there was, we had submitted a, prepared a claims chart, submitted the claims chart to the other, to level up.

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They responded by, they ignored the claims chart.

[00:10:36] Speaker 03:
This is a very limited record.

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I submit that the facts in the record are that

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We know that the cell phone is involved in the transaction.

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We know that the cell phone communicates messages and receives messages.

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That much is acknowledged by both sides and by the court in its decision.

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What we don't know is how and in what context the cell phone sends and receives those messages.

[00:11:07] Speaker 03:
Those are the fact questions.

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And I submit to the court that there are certainly

[00:11:12] Speaker 03:
multiple questions of fact that would preclude some judgment in this case, regarding that very question, how and in what context the cell phone with the Level Up application sends and receives messages.

[00:11:25] Speaker 00:
In a customary transaction at a point of sale terminal, I use a credit card.

[00:11:30] Speaker 00:
You wouldn't suggest that a credit card would be part of the transaction terminal, right?

[00:11:35] Speaker 00:
I would not, Your Honor, and I am confused why.

[00:11:37] Speaker 00:
Okay, so now let's go to this case.

[00:11:40] Speaker 00:
I think, as I understand the district court,

[00:11:42] Speaker 00:
the district court saw the Level Up app on the cell phone as providing information, just like a credit card is providing information to the transaction terminal.

[00:11:53] Speaker 00:
Then the transaction terminal collects that information and then communicates it over the financial services network to some server somewhere to complete the transaction.

[00:12:02] Speaker 00:
And so to me, that's the biggest hurdle I see for your case.

[00:12:08] Speaker 00:
Why isn't the cell phone with the Level Up app

[00:12:11] Speaker 00:
serving the exact same identical role as a credit card in my wallet.

[00:12:16] Speaker 03:
Because a user with a credit card cannot communicate a tip, change the amount of the transaction with the credit card.

[00:12:26] Speaker 03:
The credit card is scanned into the device and the scanner reads the amount.

[00:12:32] Speaker 03:
and that's the amount that's transferred or transmitted to the point of sale.

[00:12:37] Speaker 01:
What difference does that make since you agree that the TIP is not communicated over a secure financial network?

[00:12:43] Speaker 03:
Say again, Your Honor?

[00:12:44] Speaker 01:
What difference does that make since you agree that the TIP is not being communicated over a secure financial network?

[00:12:51] Speaker 03:
I don't think that that limitation is a required permeation of the patent specification.

[00:12:57] Speaker 03:
I don't think that the TIP, that the act of the user with a cell phone

[00:13:02] Speaker 03:
having to enter that, communicating that TIP into its phone to be sent to the level up scanner necessarily has to be, that group of events doesn't necessarily have to be within the secured financial network to be applicable to the 873 pattern.

[00:13:20] Speaker 00:
I don't understand how the TIP analogy or example helps your cause though.

[00:13:24] Speaker 00:
Again, to me that's nothing more than providing information to what arguably is the trend

[00:13:32] Speaker 00:
Transaction Terminal.

[00:13:33] Speaker 00:
Sure, it's communicating information.

[00:13:35] Speaker 00:
But not through the financial services network to that server on the back end.

[00:13:41] Speaker 00:
It's communicating information, providing information to the actual transaction terminal, just as my credit card is communicating and providing information to the transaction terminal that's now collecting that and then sending it off.

[00:13:56] Speaker 03:
Sure, and then respectfully, Your Honor, that would be reading a limitation into the Diagram 302 in the specification, which is the transaction terminal that says the transaction terminal cannot be comprised of elements that fall outside of the secure financial network.

[00:14:16] Speaker 03:
I think that's not the point or that wasn't

[00:14:21] Speaker 03:
a restriction that was contemplated by the PAC.

[00:14:24] Speaker 00:
Right, but we already agree that my credit card is not part of anybody's transaction terminal.

[00:14:28] Speaker 00:
You're not going to sue me because I use a credit card.

[00:14:31] Speaker 00:
No, yes.

[00:14:32] Speaker 01:
Absolutely, Your Honor.

[00:14:33] Speaker 01:
Agreed.

[00:14:35] Speaker 01:
Okay, Mr. Fine, I'm going to save the rest of your time for a bubble here.

[00:14:38] Speaker 01:
I will.

[00:14:39] Speaker 01:
Thank you, Your Honor.

[00:14:41] Speaker 01:
Mr. Carroll?

[00:14:43] Speaker 02:
Yes, Your Honor.

[00:14:50] Speaker 02:
May it please the Court?

[00:14:51] Speaker 02:
I'll venture to say that this is quite an uncommon case to reach this court where the patentee is appealing the entry of summary judgment of non-infringement after the patentee failed to submit any evidence whatsoever to the district court and failed to offer any dispute of material fact in response to what was a very straightforward motion for summary judgment.

[00:15:14] Speaker 02:
Before I dig into the merits of it, I just want to address briefly the argument that was made in Mr. Barron's reply brief

[00:15:19] Speaker 02:
and also by my brother, that Mr. Barron was somehow denied an ability to conduct discovery in the District Court action, and that that somehow translates into disputes of fact that could exist, but that Mr. Barron was unable to establish.

[00:15:32] Speaker 02:
As Your Honors know from reading the record, that's simply not the case here.

[00:15:36] Speaker 02:
In fact, it's quite the opposite.

[00:15:38] Speaker 02:
Mr. Barron's counsel on several occasions affirmatively represented to the District Court, but they didn't need any discovery to respond to our non-imprisonment motion.

[00:15:46] Speaker 02:
uh... the facts were uh... publicly available talking about the messaging features of the app uh... mister every opportunity to investigate those uh... in his response to the statement of material facts uh... at appendix one twenty two uh... mister baren doesn't say anything about needing discovery says we accept these facts is accurate and if and only if the motion for summary judgment is denied and this case then proceeds to discovery then we expect to conduct some discovery but at no time

[00:16:14] Speaker 02:
Did you request any discovery?

[00:16:15] Speaker 02:
There was no 50D motion, no formal request for discovery.

[00:16:20] Speaker 02:
At oral argument, it was the same representation.

[00:16:23] Speaker 02:
We accept these facts as true.

[00:16:24] Speaker 02:
There are no disputes here.

[00:16:26] Speaker 02:
And Mr. Barron's counsel at A28 in the transcript represented to the court that they wanted the court's ruling on this non-imprisonment motion based on the record that they put forward.

[00:16:35] Speaker 02:
And that record included no evidence.

[00:16:36] Speaker 00:
Where did the claim construction come from?

[00:16:39] Speaker 02:
The claim construction, Your Honor, was a claim construction that we proposed in connection with our motion for summary judgment.

[00:16:43] Speaker 02:
We proposed the transaction terminal should be construed to mean in accordance with the patent and common understanding of transaction terminals.

[00:16:53] Speaker 02:
A device that transmits transaction information over a secure financial network to seek authorization for that transaction.

[00:17:02] Speaker 02:
We proposed a construction that wasn't opposed at all by Mr. Barron.

[00:17:06] Speaker 02:
He didn't propose an alternative construction.

[00:17:08] Speaker 02:
He didn't suggest any modification to our construction.

[00:17:11] Speaker 02:
I didn't take any issue with it.

[00:17:12] Speaker 02:
He argued essentially that the device could be any device.

[00:17:16] Speaker 02:
It could be a traditional merchant point of sale computer, or it could be a phone or tablet.

[00:17:21] Speaker 02:
He's not arguing that now.

[00:17:22] Speaker 02:
He's not arguing that the phone is a transaction terminal.

[00:17:25] Speaker 02:
No, he's not arguing that.

[00:17:26] Speaker 02:
And that is one of the big issues in this case, is whether the dispute over claim construction is even properly before this court.

[00:17:33] Speaker 02:
The district court was never asked to consider whether a transaction terminal was a device or

[00:17:39] Speaker 02:
a compilation of multiple devices.

[00:17:41] Speaker 02:
They never had a chance to rule on that issue.

[00:17:43] Speaker 00:
Do you disagree with that proposition that a transaction terminal could be a plurality of devices operating together, connected together somehow?

[00:17:51] Speaker 02:
I think that the examples in the specification refer to singular devices like POS terminal, ATM terminal, but certainly there's some boilerplate in there that refers to multiple connected devices.

[00:18:06] Speaker 02:
And I'd suggest that a merchant POS terminal with multiple connected devices, including a card scanner and a merchant computer and a device for printing out receipts, that probably would fall within someone's understanding of what a transactional terminal is, even within the context of the 873 patent.

[00:18:21] Speaker 02:
That's not what they're advocating now.

[00:18:22] Speaker 02:
They're advocating that additional devices, like a user's phone, which is not connected in any way, and in fact doesn't communicate in any way with the POS terminal, other than to display a static QR code.

[00:18:34] Speaker 02:
could also be considered part of the transaction terminal.

[00:18:40] Speaker 02:
So to dig into that point a little bit and the district court's finding and what we've advocated is that the phone really is just a proxy for the credit card.

[00:18:49] Speaker 02:
It's interesting, I want to point out a portion of the specification of this 873 patent that actually discusses this type of technology.

[00:18:56] Speaker 02:
So the level up phone displays a QR code.

[00:18:59] Speaker 02:
We call that a token, a static token.

[00:19:01] Speaker 02:
It can have other information encoded in the token.

[00:19:03] Speaker 02:
For example, a request for an increased amount on the tip.

[00:19:07] Speaker 02:
That's scanned to the POS terminal without any communication at all.

[00:19:13] Speaker 02:
There's no response back from the POS terminal to the phone.

[00:19:16] Speaker 02:
There's no wireless communication at all.

[00:19:18] Speaker 02:
In fact, the POS terminal doesn't even know that the phone is there.

[00:19:20] Speaker 02:
As far as the POS terminal is concerned, that scan could have happened off a printed piece of paper card.

[00:19:26] Speaker 02:
It doesn't know that it's actually a phone presenting that QR code.

[00:19:32] Speaker 02:
The A73 patent in column 4 at line 28 to 38 actually defines what it means when it refers to a credit card.

[00:19:38] Speaker 02:
And when it refers to a credit card in the definition, it's not just saying plastic, traditional credit or debit cards.

[00:19:44] Speaker 02:
It's also talking about devices.

[00:19:46] Speaker 02:
And there's an expressed discussion of devices that transmit tokens into point of sale terminals.

[00:19:51] Speaker 02:
Like it gives the example of the mobile speed pass.

[00:19:54] Speaker 02:
which is a radio frequency device that you scan at the gas pump terminal.

[00:19:59] Speaker 02:
And that conveys a token, a user identifier that's not a credit card number, into the terminal.

[00:20:04] Speaker 02:
They consider that speed pass expressly within the patent to be a quote unquote credit card, not part of the transaction terminal.

[00:20:10] Speaker 02:
Apple Pay is an example that some people are familiar with, also functions using tokens by conveying a token from the phone into the point of sale terminal.

[00:20:18] Speaker 02:
And the patent discusses these devices that create tokens and includes them within the express definition of credit card.

[00:20:24] Speaker 02:
Credit cards, obviously, and as discussed in the patent, are distinct from transaction terminal.

[00:20:30] Speaker 02:
So in addition to the arguments we've made in the papers, there are numerous points in the specification that confirm the district court's conclusion.

[00:20:37] Speaker 02:
There's no way for a person of ordinary skill in the IR or even any person to read that patent and conclude that a device that generates a token, a static token,

[00:20:47] Speaker 02:
to convey into the transaction terminal is part of that transaction terminal.

[00:20:50] Speaker 01:
In other words, your argument is that it has to perform some step in the method and that the cell phone's not performing a step in the method.

[00:21:01] Speaker 02:
Yes, the cell phone is essentially no different than a credit card in that.

[00:21:05] Speaker 02:
You're using the phone and the token to perform a financial transaction at the transaction terminal, but you're not using the phone to perform the transaction.

[00:21:15] Speaker 02:
Even when the TIP feature is involved,

[00:21:18] Speaker 02:
That's no different than handing your card to a waiter at a restaurant and saying, I'm in a hurry, please just add 18% when you run this card.

[00:21:26] Speaker 02:
That doesn't make your card or you or your oral instruction part of the transaction terminal.

[00:21:31] Speaker 02:
It's actually even similar to the traditional situation, which the waiter takes your card, brings back a receipt, and you add the tip amount in, hand that to the waiter.

[00:21:40] Speaker 02:
All that is is an instruction to the waiter to go and add the 18% to the bill before they submit the transaction for authorization.

[00:21:47] Speaker 02:
And that's all that's happening there.

[00:21:48] Speaker 02:
And that's all that's happening here.

[00:21:50] Speaker 02:
The tip is not creating some relationship between the device, which is presenting a static symbol, and the transaction terminal.

[00:22:03] Speaker 01:
Isn't the rewards information coming through the mobile phone?

[00:22:08] Speaker 02:
All of the messages that LevelUp ever delivers to a user are messages delivered to the mobile phone or through email.

[00:22:15] Speaker 02:
You get them on your computer as well.

[00:22:17] Speaker 02:
But the key point is that they're all delivered over the public internet.

[00:22:21] Speaker 02:
Level Up is never delivering any messages over a secure financial transaction network to a point of sale terminal that are then communicated.

[00:22:28] Speaker 01:
Does the message here that's independent of the financial transaction have to be communicated over a secure network?

[00:22:37] Speaker 01:
I'm not sure it does.

[00:22:40] Speaker 02:
In the claim, Your Honor, it refers to using the same device, the transaction terminal, to submit the transaction over the secure network

[00:22:47] Speaker 02:
and to receive and display.

[00:22:51] Speaker 02:
Now, if you look at the context of the patent, what the defining characteristic is in a transaction terminal, and there's actually no dispute over this in terms of the construction.

[00:23:01] Speaker 02:
Both parties agree that the transaction terminal has to be connected to the secure financial transaction network.

[00:23:07] Speaker 02:
What that means, if you look at the figures, and my brother cited figure three, also in figure one, you'll see that the transaction terminal is separated from the public internet.

[00:23:17] Speaker 02:
by a firewall.

[00:23:19] Speaker 02:
That's its connection to the secure financial network.

[00:23:21] Speaker 02:
That's what makes it secure.

[00:23:22] Speaker 02:
So that means that that transaction terminal is not directly addressable by the public internet.

[00:23:27] Speaker 02:
You can't just send an email or an SMS text directly to that transaction terminal as a term is used in this path.

[00:23:35] Speaker 02:
It can reach out when it receives a transaction.

[00:23:37] Speaker 02:
It can reach out through that firewall and pull any messages in that might be for the user and then deliver them to the user at the transaction terminal.

[00:23:44] Speaker 02:
But I'd suggest, Your Honor, in the context of this patent, the only way that a transaction terminal actually could deliver a message is one that comes over that secure financial transaction network because of the firewall and how he's described this transaction terminal.

[00:24:01] Speaker 02:
The use of a phone or a computer connected to public internet is essentially the antithesis of Mr. Graham's invention, as has been pointed out.

[00:24:10] Speaker 02:
The whole fundamental purpose and object of this invention was to reach people that don't have access to internet connected devices or publicly addressable, directly addressable devices.

[00:24:23] Speaker 02:
So to say that any messages delivered by Level Up over the internet to email or to users' phones somehow infringed this patent is a hard conclusion to reach.

[00:24:34] Speaker 01:
Well, I think the point is that sending the message is not something that a credit card does.

[00:24:40] Speaker 01:
So if you look at the trying to separate out the mobile phone as being nothing more than a credit card, it does something more than that.

[00:24:47] Speaker 01:
It's sending a message.

[00:24:50] Speaker 02:
It depends on what definition of credit card you're using.

[00:24:52] Speaker 02:
If you're using a traditional definition of credit card, I'd agree with you that the Level Up phone is not a credit card.

[00:24:58] Speaker 02:
It's a device that presents a token.

[00:25:00] Speaker 02:
And that token relates to the credit card information, allows Level Up to resolve that user's identity into a credit card and make the charge on the back end.

[00:25:09] Speaker 02:
But in the context of the patent, they're defining the term credit card to include those types of devices.

[00:25:16] Speaker 02:
Given that, given the complete lack of interaction between the POS terminal and the phone, it's worth reiterating that these are all completely undisputed facts about the operation here.

[00:25:28] Speaker 02:
The court construed the claim properly and made the right conclusion that no person of ordinary skill in the art could find or conclude

[00:25:35] Speaker 02:
that a user using a device to present a token makes that phone part of the transaction term.

[00:25:41] Speaker 01:
Okay, anything else?

[00:25:43] Speaker 01:
Nothing further unless there are any questions.

[00:25:46] Speaker 01:
Okay, thank you, Mr. Kern.

[00:25:49] Speaker 01:
Mr. Fine.

[00:25:52] Speaker 03:
Thank you, I'll be brief.

[00:25:55] Speaker 03:
Two quick points.

[00:25:56] Speaker 03:
First, with respect to the credit card issue.

[00:25:59] Speaker 03:
The difference between what a credit card does and what a phone with a level of application does

[00:26:05] Speaker 03:
is this.

[00:26:07] Speaker 03:
With a credit card, with a traditional credit card, a user will hand the card to the waiter.

[00:26:11] Speaker 03:
The waiter will run the card through the scanner and the waiter and then that information is transmitted to the credit card company, to the clearinghouse.

[00:26:22] Speaker 03:
With a cell phone with a level up application, it is the user that is entering that information and communicating that information directly to the

[00:26:32] Speaker 03:
level up scanner, which then transmits that information to the clearinghouse.

[00:26:38] Speaker 03:
That's a distinction in terms of whether it's the waiter, whether it's the user entering the information.

[00:26:45] Speaker 01:
You should not sitting in the audience be communicating messages.

[00:26:49] Speaker 03:
Secondly, the communication system in figure three that transmits the information from the transaction terminal to the financial services server.

[00:27:03] Speaker 03:
There is no limitation in the patent that says that has to be any particular type of system.

[00:27:08] Speaker 03:
It could be through the internet, through a virtual private network, a dial-up, traditional dial-up line, or even a phone line.

[00:27:14] Speaker 03:
To restrict the nature of the communication system between the transaction terminal and the clearinghouse is to read limitations that don't exist in the patent.

[00:27:27] Speaker 01:
Okay, thank you, Mr. Feinstein, both counsel, the case is submitted.