[00:00:25] Speaker 01:
Mr. Swenson, whenever you're ready.

[00:00:28] Speaker 06:
Yes, Your Honor.

[00:00:30] Speaker 06:
May it please the Court, never in the past two millennia has a human being taken a trip with a briefcase full of physical card catalog cards and been capable of making a card transubstantiate remotely into a physical copy of a book that replaces it in a briefcase.

[00:00:46] Speaker 06:
Like the notion of instant transportation from a brick and mortar store in DDR holdings, that possibility simply never existed in the prior art at the time of this invention.

[00:00:55] Speaker 06:
Acclaimed invention here arose in the early 1990s in an entirely new and different technological paradigm than a library card catalog or the card cataloging in general that appellees focus on.

[00:01:07] Speaker 06:
And contrary to page 32 of appellee's brief, physical and electronic documents and their handling are not technologically the same, which is what they've argued here.

[00:01:17] Speaker 06:
The claims of these patents, 321 and 997 patents, are not directed to the idea of cataloging documents.

[00:01:25] Speaker 06:
They're directed to a system capable of actually exchanging electronic documents and references wirelessly between distinct memories in different devices.

[00:01:34] Speaker 06:
Nor do they merely instruct one to apply generic computers to cataloging documents.

[00:01:39] Speaker 04:
But the system is capable of cataloging the documents and putting them in such a way so they can quickly be retrieved, right?

[00:01:46] Speaker 06:
Well, that's a question, Your Honor.

[00:01:47] Speaker 06:
And in fact, if anything, really, that's an element of one side of the system on a backend database.

[00:01:54] Speaker 06:
I mean, obviously, there is some cataloging of documents that has occurred.

[00:01:59] Speaker 06:
For example, if you're looking at Appellee's systems for Amazon Bookstore or Barnes & Noble, those documents have been cataloged, which illustrates that that's not what we claimed.

[00:02:12] Speaker 04:
That's... No, this is what we're trying to do is to decide whether or not what you claim embraces an abstract idea.

[00:02:19] Speaker 04:
And I was, you have DDR, it's the only data point out there for you to have your hat on, so far, post-hours.

[00:02:28] Speaker 04:
I was looking at contact extraction against Wells Fargo Bank, and the claim there was collecting data, recognizing certain data within the collected data set, storing that recognized data in a memory.

[00:02:42] Speaker 04:
And it could have included the step retrieving the data.

[00:02:46] Speaker 04:
If they included the step of retreating again, it would look to me very much like what your claims do.

[00:02:52] Speaker 06:
Well, content extraction is one of, first of all, if you go back on all these cases looking at the Supreme Court line of precedent through Alice, what those were really concerned with was method claims and whether or not they were.

[00:03:05] Speaker 04:
Well, I know your lead argument here is, oh my goodness, this is an apparatus.

[00:03:09] Speaker 04:
That's correct.

[00:03:09] Speaker 04:
That's your lead argument in your brief.

[00:03:11] Speaker 04:
And I've got to be honest with you, I just drew a line through all that and said, Alice says no, move on.

[00:03:18] Speaker 04:
But Alice makes perfectly clear that the fact that you have chosen to write your claims in an apparatus form doesn't cut any mustard.

[00:03:28] Speaker 05:
Well, Your Honor, I disagree with that respectfully with what Alice says in that regard.

[00:03:32] Speaker 04:
Let's assume, for purposes of argument, that I'm right.

[00:03:36] Speaker 04:
If Alice says that, then what I'm trying to get at is to move you past that point.

[00:03:41] Speaker 04:
We can decide that point.

[00:03:43] Speaker 04:
Right.

[00:03:44] Speaker 04:
Whether or not the fact that you're an apparatus saves you from abstraction?

[00:03:48] Speaker 05:
Sure.

[00:03:49] Speaker 04:
I can decide that without talking to you any further.

[00:03:51] Speaker 04:
I can go back to my chambers and think about it.

[00:03:53] Speaker 04:
But for me to try to do the hard work of deciding whether or not the steps in your claim, taking apart, cheating as though they were method, whether those steps in the claim, whether there's any clear daylight between them and, for example, contract extraction,

[00:04:10] Speaker 06:
Well, I think the difference with content extraction in particular is that right there you had only two pieces of equipment.

[00:04:17] Speaker 06:
You had what was admitted to be a general purpose computer and you had what was admitted to be an input device or a scanner that was admitted to be conventional at the time.

[00:04:25] Speaker 06:
And one of the things that this court said in its opinion is that counsel acknowledged in the argument that the scanner was also generic and conventional.

[00:04:34] Speaker 06:
So there, you've only combined, if we're talking about it as a method, Your Honor, you've combined two things that are both acknowledged to be conventional as part of performing that method.

[00:04:44] Speaker 06:
Here, this is a combination claim that has a lot more to it.

[00:04:48] Speaker 06:
And actually, by the way, these claims are distinct claims.

[00:04:51] Speaker 06:
There are claims to the device itself.

[00:04:53] Speaker 06:
There are claims to the overall system.

[00:04:56] Speaker 06:
So the point that you respond to your question, Judge Clevinger, is that

[00:05:00] Speaker 06:
This goes far beyond content extraction in the caliber of what?

[00:05:04] Speaker 04:
Well, I mean, your adversary says the things that you talk about that take this outside that are unusual aren't claimed.

[00:05:12] Speaker 04:
They're things you talk about in your spec, but they're not part of the claim.

[00:05:16] Speaker 04:
The URLs and the rest, the stuff that may have been novel at the time, but it's not claimed.

[00:05:20] Speaker 06:
That's an argument that's directed to a few specific elements within the claim.

[00:05:25] Speaker 06:
But the point is that it still is a combination claim, and there's more to it than content extraction.

[00:05:30] Speaker 06:
There's more than just a generic.

[00:05:32] Speaker 04:
Robert, why doesn't that go to whether or not you somehow managed to morph an abstract notion into something that's patentable?

[00:05:39] Speaker 06:
Well, there has to be something that isn't abstract or an abstract idea.

[00:05:44] Speaker 06:
I mean, I understand that you're asking me to put this.

[00:05:46] Speaker 04:
I mean, we could also have this debate on another level, like what's an abstract idea.

[00:05:50] Speaker 04:
But you've got to understand that I'm starting from it.

[00:05:53] Speaker 04:
I'm trying the best I can to apply the law handed down to me by my masters up on Capitol Hill at the Supreme Court.

[00:06:01] Speaker 04:
So they tell me that hedging

[00:06:05] Speaker 04:
is an abstract idea, right?

[00:06:08] Speaker 04:
I have trouble with the fact that hedging is an abstract idea.

[00:06:12] Speaker 04:
But it is.

[00:06:14] Speaker 04:
And so I say, well, collecting, restoring, retrieving, this is what CME, your claim is all about.

[00:06:26] Speaker 04:
And the fact that it's being done electronically, yes, that is a limitation.

[00:06:32] Speaker 04:
You're not just talking about collecting so that all of the physical card catalogs out there in the world probably aren't going to fall under your claims.

[00:06:42] Speaker 04:
But anybody who walks along the street with their iPhone and downloads some content from a server over here somewhere is going to be infringing your claims.

[00:06:52] Speaker 06:
That's not necessarily true, Your Honor.

[00:06:54] Speaker 04:
Well, it's close to it.

[00:06:56] Speaker 06:
No, and by the way, I mean, for what it's worth, a lot of devices that are out there are already licensed under this patent, so... Well, I don't care about that.

[00:07:05] Speaker 04:
I mean, that means somebody took a license.

[00:07:07] Speaker 04:
But the point is that, from the point of view of a preemption point of view, you're going to preempt all electronic forms of and then just add the verbs and put ING on them.

[00:07:18] Speaker 05:
Well, that's not true, Your Honor.

[00:07:19] Speaker 04:
In terms of storing, collecting, and retrieving.

[00:07:22] Speaker 06:
Well, but even in a method claim, there is an aspect of a combination of the steps, and whether that combination is simply a, you know, reflects an algorithm or a mathematical calculation.

[00:07:34] Speaker 06:
I mean, that's what the Supreme Court precedent stands for through Parker and, you know.

[00:07:39] Speaker 04:
So I mean, our first problem here is whether or not we do indeed have an opinion from an experienced district court judge that, from your perspective, kind of was pretty thin about trying to explain why this is an abstract idea.

[00:07:55] Speaker 04:
But that's a legal question, and we can fill in the blanks if we need to in that rationale.

[00:08:01] Speaker 04:
But you first got to convince me that this is not an abstract idea.

[00:08:05] Speaker 04:
If you can't convince me of that, then you've got to convince me that what's happening in the claims is, in your words, DDR type stuff.

[00:08:15] Speaker 04:
And I don't see that.

[00:08:16] Speaker 04:
I don't see that your claims are telling a computer to do something that it refuses to do.

[00:08:22] Speaker 06:
Well, Your Honor, again, it's the combination of functionality.

[00:08:27] Speaker 06:
So yes, people have known how to store.

[00:08:31] Speaker 06:
People have known how to receive.

[00:08:32] Speaker 06:
People have known how to transmit.

[00:08:34] Speaker 06:
There are aspects of this that are even acknowledged in the specification as things that were understood.

[00:08:41] Speaker 06:
I mean, it refers to a conventional network as one component, meaning ethernet.

[00:08:46] Speaker 04:
And obviously, in the old physical library sense, one knew how

[00:08:49] Speaker 04:
go to the library and get the card cataloging, get the library and the roster, and get the book.

[00:08:55] Speaker 06:
But the point is you couldn't have the functionality to exchange a physical document between two spaces the way that you do with this.

[00:09:03] Speaker 06:
So it's the combining of steps that you have a memory and a portable device, which is required by the claim to be the portable transport device, and you have a much larger memory that holds a substantial amount of books.

[00:09:17] Speaker 04:
Accomplishing all of that is simply a matter of programming a general purpose computer.

[00:09:27] Speaker 06:
There are aspects of what's done here that involve programming a computer that may be a general purpose computer as one of the elements of the combination.

[00:09:36] Speaker 04:
Certainly no new computer is being claimed.

[00:09:39] Speaker 06:
Well, that's not true, because the portable electronic transport device, I mean remember, one of the key aspects of this, and now we're crossing over very much into essentially an obviousness argument, and the problem with that is that we end up doing an obviousness argument on a record without the grandeur factors, we haven't established scope and contents of the art, etc.

[00:09:59] Speaker 06:
But the document transport device, the whole thing that presupposed this invention in 1994, and actually that's when the first filing was, so we're really talking about 1992, 1983, was that we weren't walking around beaming things with our cell phones in 1993.

[00:10:17] Speaker 06:
So yes, there actually are components of this that are new.

[00:10:20] Speaker 04:
But there were devices that were capable of doing that if you knew what to do.

[00:10:25] Speaker 06:
That's not something, I mean,

[00:10:27] Speaker 03:
Has there been any determination that up until 1994 that people were, in fact, doing that?

[00:10:32] Speaker 03:
That would go to novelty and obviousness, but I don't know.

[00:10:34] Speaker 06:
We never got to that point.

[00:10:35] Speaker 06:
I'm sorry to interrupt you, Your Honor.

[00:10:37] Speaker 06:
This case never got to that point.

[00:10:39] Speaker 06:
And that goes to what I'm saying to Judge Cleverger, is that we're doing this on an early summary judgment, which was accelerated to be heard at the Markman hearing.

[00:10:48] Speaker 06:
And so there was only very limited discovery, which didn't cover.

[00:10:51] Speaker 03:
I remember 1994 pretty darn well.

[00:10:54] Speaker 03:
That's the year I graduated law school, in fact.

[00:10:56] Speaker 03:
I don't even remember laptops for the most part existing at that point, much less cell phones that you could use for data in that manner.

[00:11:04] Speaker 03:
Certainly those didn't exist.

[00:11:06] Speaker 03:
I think I had a Motorola Flip phone at the time.

[00:11:08] Speaker 03:
The most it was capable of was occasionally getting through the right phone number.

[00:11:12] Speaker 03:
So it's kind of easy now, isn't it, in 2015, to look backwards and say, come on.

[00:11:18] Speaker 06:
Well, and Your Honor, again, that's my concern, I express to Judge Klobuchar, is that what we're really doing here is we're, and this is a major problem with the judge's opinion below, is that the judge talked about what's conventional from the perspective, it appears, of today and saying,

[00:11:32] Speaker 06:
I can look at this, this, and this.

[00:11:34] Speaker 01:
Well, she did cite to the specification.

[00:11:36] Speaker 01:
I mean, she had some sites pulled out at the specification and all your references to your computer and what technology you were using.

[00:11:42] Speaker 01:
So she was using your... In places, Your Honor.

[00:11:47] Speaker 06:
You know, with all respect, SPEC uses the word conventional six times, I counted it.

[00:11:53] Speaker 06:
The things it says are conventional, you know, JA49,

[00:11:56] Speaker 06:
Column 7, line 7, it says, a mouse in a pointer architecture.

[00:12:00] Speaker 02:
No, but you also referenced the citation to any suitable portable computer, any suitable format.

[00:12:07] Speaker 06:
Well, that goes to my discussion with Judge Moore, Your Honor, which is that we have to go back to 1994.

[00:12:12] Speaker 06:
And we were walking around with flip phones.

[00:12:14] Speaker 06:
We weren't walking around with this that has my entire office on it or three movies and several books.

[00:12:22] Speaker 06:
So when we go back to 1994, it's a different analysis.

[00:12:25] Speaker 06:
And we can't use hindsight from what we think today is conventional.

[00:12:30] Speaker 06:
Especially, we end up preempting the, as I said, the obvious analysis.

[00:12:35] Speaker 03:
So this guy didn't invent portable electronics.

[00:12:38] Speaker 03:
This guy didn't invent large-scale memory, right, in a stationary device, and he didn't invent the concept of retrieving or communicating.

[00:12:47] Speaker 03:
You've already said all of that.

[00:12:49] Speaker 03:
So what is it this guy invented?

[00:12:50] Speaker 03:
I mean, give me the kernel of the notion of his invention.

[00:12:53] Speaker 06:
Sure, Your Honor.

[00:12:55] Speaker 06:
So, and Sue, part of what you said, some of these things like the park tablet or the park tab,

[00:13:00] Speaker 06:
were being simultaneously developed at Xerox as part of an overall project of an office automation system.

[00:13:07] Speaker 06:
So what these people, these two inventors, Lamming and Flynn, were part of this team who were focusing and they came up with this idea of using the different size document token or reference and interchanging that with a full size electronic document software.

[00:13:24] Speaker 03:
The answer to my question is software.

[00:13:26] Speaker 03:
They invented a software method.

[00:13:29] Speaker 03:
I know that right now people think software is a dirty word at 101.

[00:13:31] Speaker 03:
I'm not one of them.

[00:13:32] Speaker 03:
So don't take it that way.

[00:13:33] Speaker 03:
Software.

[00:13:34] Speaker 03:
They came up with a document subhandling system routine which implemented through software allowed for

[00:13:41] Speaker 03:
all of these potentially novel, not obvious communications access to take place, right?

[00:13:47] Speaker 03:
Is that the kernel of their invention?

[00:13:49] Speaker 06:
No, I respectfully disagree with that, Judge Moore.

[00:13:52] Speaker 06:
I think that it's much more than software.

[00:13:54] Speaker 06:
You have to look at the elements of taking, also simultaneously being developed.

[00:13:59] Speaker 06:
The URL was standardized at W3 Consortium in 1993 and 1994.

[00:14:03] Speaker 03:
That's not what's claimed.

[00:14:04] Speaker 06:
It is actually in some part.

[00:14:07] Speaker 06:
If you look at the 997 patent, one of those dependent claims talks about a document reference.

[00:14:13] Speaker 06:
This is JA72.

[00:14:14] Speaker 06:
I believe it's claim four.

[00:14:16] Speaker 06:
The system according to claim one wherein each electronic document reference specifies a host file server and location

[00:14:22] Speaker 06:
etc.

[00:14:23] Speaker 06:
And that corresponds to the disclosure of the URL and specification in column 5 on JA48 including the portions of a URL that directs you to a file on a host server.

[00:14:36] Speaker 06:
So yes, they are combining more than just writing a software routine.

[00:14:41] Speaker 06:
They are putting together these elements of this

[00:14:43] Speaker 06:
part tab idea, this portable computer, a backend database, the reference or token, and then the transceivers that allow this to remotely exchange these documents which results in the innovative development of being able to interchange documents in your portable memory so that I can walk around with this and I can have a hundred books on here even though I only have now eight gigs and it still fills up

[00:15:07] Speaker 06:
But I can click on something that hasn't been downloaded yet that I have a reference for and all of a sudden, bam, it's in my tablet or my e-reader or something else.

[00:15:17] Speaker 06:
And the other thing is that we can't hold against these inventors.

[00:15:21] Speaker 06:
I mean, if I was the first person to come up with the concept of a human-powered two-wheeled vehicle with aligned wheels and pedals,

[00:15:29] Speaker 06:
If I was really the first person who came up with that, I get to claim all bicycles.

[00:15:33] Speaker 06:
You can't say you're limited to the blue bike or the bike with the pink basket.

[00:15:40] Speaker 06:
These people in 1994, this combination was something that hadn't been done before and it was a capability that has nothing to do with card catalogs in a library.

[00:15:49] Speaker 06:
It has to do with

[00:15:50] Speaker 03:
Okay, so you think claim four maybe extends to URL.

[00:15:58] Speaker 03:
I'm not sure if it's specific enough to convince me that that's what it does extend to.

[00:16:02] Speaker 03:
Claim one, which is the broader independent claim, what is the invention here?

[00:16:09] Speaker 03:
I mean, it seems to me the invention is the software that allows the coupling and the communication, isn't it?

[00:16:16] Speaker 03:
I mean, what else is in claim one?

[00:16:19] Speaker 06:
I disagree, Your Honor.

[00:16:20] Speaker 06:
It's not the software that's not... What's wrong with it?

[00:16:23] Speaker 03:
So what?

[00:16:24] Speaker 03:
Suppose I think it is the software.

[00:16:26] Speaker 03:
It doesn't mean you lose.

[00:16:27] Speaker 03:
I mean, you're bucking me as though you're going to lose.

[00:16:29] Speaker 03:
I understand.

[00:16:30] Speaker 03:
Okay, so assume I think it's only the software.

[00:16:32] Speaker 03:
Start from that.

[00:16:33] Speaker 03:
You don't.

[00:16:33] Speaker 03:
I agree.

[00:16:34] Speaker 03:
But assume I do.

[00:16:37] Speaker 03:
How does this case differ from DDR under those circumstances?

[00:16:42] Speaker 03:
This is a software system for improving, basically expanding the memory of a computer by allowing you access beyond what you're capable of containing on the memory of your computer.

[00:16:51] Speaker 03:
I mean, this doesn't feel very business method-y.

[00:16:54] Speaker 03:
This doesn't feel very internet-y.

[00:16:55] Speaker 03:
This feels like something that goes to the heart of improving the technology itself.

[00:17:01] Speaker 06:
Sure.

[00:17:03] Speaker 06:
I agree with everything you just said.

[00:17:04] Speaker 06:
Absolutely.

[00:17:05] Speaker 06:
I'm not bucking you on that.

[00:17:06] Speaker 06:
My only point, and I think I said to Judge Clevenger's question, that yes, it includes software.

[00:17:11] Speaker 06:
The only thing I'm bucking in your question is that the invention that these people came up with wasn't limited to a software routine.

[00:17:18] Speaker 06:
It was the combination of all these things, including that there is software that makes this... Yeah, but each of the things is old.

[00:17:26] Speaker 03:
I don't see any hard... A combination of things.

[00:17:28] Speaker 03:
A combination of pieces of hardware.

[00:17:30] Speaker 03:
But each of those pieces of hardware are admittedly by the specification old.

[00:17:33] Speaker 03:
None of them were hardware that were invented, at least for claim one purposes, which is quite broad.

[00:17:38] Speaker 03:
Nothing disclosed in it, it seems to me, is hardware specific to this invention, as opposed to hardware programmed to act a specific way for this invention.

[00:17:48] Speaker 06:
And we're talking about J72, just to be clear, 997, claim one.

[00:17:53] Speaker 03:
997, claim one.

[00:17:55] Speaker 06:
And again, now there,

[00:17:56] Speaker 06:
One of the problems, not only did we not get to the obviousness stage, but the judge decided to issue the one-on-one order, even though we had a full markman hearing without issuing a claim destruction order.

[00:18:06] Speaker 03:
Is there a question, though, that if you're disagreeing with my characterization of

[00:18:11] Speaker 03:
what really this claim is about.

[00:18:13] Speaker 03:
Why?

[00:18:13] Speaker 03:
Don't tell me what the judge did or didn't do.

[00:18:15] Speaker 03:
Tell me now why.

[00:18:17] Speaker 03:
What argument do you have that there is some piece of hardware in claim one, which is really a novel piece of hardware pursuant to the invention?

[00:18:24] Speaker 06:
Right.

[00:18:24] Speaker 06:
And what I'm getting at is it starts out by identifying the portable electronic document reference transport device, which what I'm saying is

[00:18:33] Speaker 06:
The specification acknowledges that at that time, there was a park tab that was being developed and had been disclosed, but it was not a well-known conventional thing that existed in the field.

[00:18:45] Speaker 06:
This was new.

[00:18:46] Speaker 06:
So I respectfully believe that there are elements.

[00:18:49] Speaker 03:
The transport device itself is a new structure, a novel structure.

[00:18:56] Speaker 03:
Yes.

[00:18:56] Speaker 03:
Like a new computer, a new fax, a new iPhone, a new whatever.

[00:19:00] Speaker 06:
It's exactly what you said, Your Honor.

[00:19:01] Speaker 06:
You had a flip phone in 1994, and this is not a flip phone.

[00:19:04] Speaker 06:
Your flip phone could not do this in 1994.

[00:19:08] Speaker 06:
So we are talking about something new and different.

[00:19:10] Speaker 03:
But doesn't the spec say any portable device is suitable?

[00:19:14] Speaker 06:
Well, it goes on to elaborate, and it incorporates by reference the articles about the Park tab, for example.

[00:19:20] Speaker 06:
And I had that marked on the

[00:19:23] Speaker 06:
321 specification.

[00:19:25] Speaker 06:
You know, I think that was JA 47 again in column 3.

[00:19:32] Speaker 06:
So it goes on to explain, and again, it's the problem that these were early innovators.

[00:19:37] Speaker 06:
So yes, they claimed broadly and they were allowed, and I want to point out that in the choir art, in the PTO, there were a couple things before the PTO that clearly distinguished what was going on here.

[00:19:49] Speaker 06:
At JA73, there's a discussion of the SCAPA, S-C-A-P-A reference, which was a portable device which could only scan business cards and exchange the full business card with another memory.

[00:20:03] Speaker 06:
So that was part of the backdrop of the Pirate.

[00:20:06] Speaker 06:
Another one, and I have to point out this was actually mischaracterized in a police brief at page 35, there was a petroleum abstract search system that

[00:20:17] Speaker 06:
used a computer and it specifically says, contrary to their brief, that it was on a Xerox Sigma 6 computer to index computer index abstracts of articles about petroleum in the petroleum industry.

[00:20:30] Speaker 02:
You need to wrap it up a little way beyond.

[00:20:33] Speaker 02:
I'm sorry, I was just trying to answer your question.

[00:20:35] Speaker 02:
And I appreciate that.

[00:20:36] Speaker 02:
I didn't want to cut you off too soon.

[00:20:38] Speaker 04:
Mr. Swenson, here at the argument today, as in your response in brief at page 15 to 18, you're backing away from treating claim one of the 321 as representative.

[00:20:49] Speaker 06:
Absolutely.

[00:20:50] Speaker 04:
I didn't see anything in front of the district court.

[00:20:52] Speaker 04:
The district court took claim one as representative.

[00:20:55] Speaker 04:
I didn't see any filing in the district court.

[00:20:58] Speaker 04:
On the contrary, I didn't see anything in your blue brief.

[00:21:02] Speaker 06:
I believe that we, well, I'll look at the blue brief when I come back, but we argued that they were different.

[00:21:07] Speaker 06:
We cited different claims, including some of the dependent claims.

[00:21:10] Speaker 06:
We argued in the Markman hearing in the motion there, different claims.

[00:21:15] Speaker 06:
So I absolutely disagree with that.

[00:21:17] Speaker 06:
I think they're, you know, for example, talking about claim four, the 997 patent, which is more,

[00:21:21] Speaker 06:
Clearly there are distinction in these claims, including the dependent claim.

[00:21:25] Speaker 04:
I'm not saying that there aren't distinctions in the claim.

[00:21:27] Speaker 04:
I'm saying for purposes of this litigation, I understood claim one to be treated as representative of all the claims.

[00:21:33] Speaker 06:
Absolutely not.

[00:21:34] Speaker 06:
That has never been our position.

[00:21:36] Speaker 06:
We've never conceded that, and I do not agree with that.

[00:21:39] Speaker 01:
OK, why don't we hear from the other side, and I'll respond to a couple minutes of rebuttal.

[00:21:56] Speaker 04:
Before you get started, do you disagree with claim one being represented?

[00:22:04] Speaker 00:
Judge Clevenger, I agree with you that before the reply brief in this case, Cloud Satchel never suggested that there were any differences between the claims that were relevant to the 101 analysis.

[00:22:16] Speaker 00:
Let's look at claim 23.

[00:22:17] Speaker 03:
Let's go page 23 of the blue brief.

[00:22:20] Speaker 03:
You say it didn't happen before the Blue Brief.

[00:22:24] Speaker 03:
Page 23 of the Blue Brief, notably Claim 15 and 17 of the 321, claimed this.

[00:22:29] Speaker 03:
This is classically a concrete thing that can be held in one's hands.

[00:22:32] Speaker 03:
They seem to, in the Blue Brief, be distinguishing Claim 15 and 17.

[00:22:36] Speaker 03:
I don't know whether just Clevenger's right about before the district court or not, or what you're going to say about that, but in the Blue Brief,

[00:22:41] Speaker 03:
I haven't gone back and looked meticulously through the blue brief, but the first one that popped into my mind was this one.

[00:22:48] Speaker 03:
They clearly are distinguishing claim 15 and 17.

[00:22:51] Speaker 00:
Let me catch up with you in the brief.

[00:22:56] Speaker 00:
Right, so there's a description of both

[00:23:00] Speaker 00:
claims here at the fifteen and uh... claims seventeen of the three-two-one patent my point is that in the blue brief cloud satchel here never explained why there was any meaningful difference between those claims for section one-on-one purposes and there's no word of that here in the blue brief and certainly they talk about how the portable electronic document referencing transport device is a concrete thing consisting of parts that can be held in one's hand i don't know they're trying to call out

[00:23:29] Speaker 03:
that element of those claims and point out that it's different.

[00:23:33] Speaker 03:
So don't you think it's not fair to say until the gray brief they never separately argued any claims or their elements?

[00:23:40] Speaker 00:
I suppose we can disagree about that, but my point here is the argument that they're making about claims 15 and 17 is the exact same argument that they make about claim one.

[00:23:49] Speaker 00:
It's the argument that Judge Clevenger referred to, that all of these claims refer to devices and therefore, according to cloud satchel,

[00:23:57] Speaker 00:
They don't claim abstract ideas.

[00:24:00] Speaker 00:
And that argument that they're making at this portion of the brief has been rejected by Alice and it's wrong.

[00:24:07] Speaker 00:
Before the district court, Cloud Satchel, if you refer back to their district court brief, Cloud Satchel itself referred to claim one of the 321 patent and never differentiated between any of the other claims meaningfully.

[00:24:20] Speaker 00:
And there's no meaningful difference here among the claims, whether it's the claims of the 321 patent or claim one of the 997 patent.

[00:24:29] Speaker 00:
Each of them are drawn on their face to the idea of associating documents with document references that identify where those documents exist in storage and then using the document reference to retrieve the document.

[00:24:44] Speaker 00:
That's an abstract idea.

[00:24:45] Speaker 00:
And it's the same idea that underlies any library cataloging system.

[00:24:50] Speaker 00:
Now, Cloud Satchel has said in its reply brief, and it repeated again today, this idea that the claims are not abstract because once you add computers and computer networks, there's the ability to retrieve documents remotely from a great distance and to do so quickly.

[00:25:08] Speaker 03:
The Supreme Court has cautioned us that everything could be reduced to an abstract idea.

[00:25:13] Speaker 03:
You can't tell me a claim that I couldn't find some way to characterize as an abstract idea.

[00:25:18] Speaker 03:
Certainly every method claim, by virtue of being a series of steps, is an algorithm.

[00:25:23] Speaker 03:
That's the definition of algorithm, which of course is an abstract idea.

[00:25:27] Speaker 03:
So it's easy to sort of say abstract idea, but

[00:25:33] Speaker 03:
Why is this an abstract idea, having an electronic system that has insufficient memory, a portable one, and using a software package of their creation to come up with a means for giving it access

[00:25:53] Speaker 03:
to orders of magnitude more data than it would otherwise be capable of.

[00:25:58] Speaker 03:
It sounds like an invention to me.

[00:25:59] Speaker 03:
It sounds like something really cool in 1994.

[00:26:03] Speaker 00:
It's an abstract idea because these claims are disembodied from any particular way of accomplishing that result.

[00:26:12] Speaker 00:
All they claim is the result of using document references to retrieve documents that are stored elsewhere.

[00:26:21] Speaker 00:
And this case is just like the internet patents case.

[00:26:24] Speaker 03:
You say it's divorced from anything and it's just really broad, but the claims are to a system and the system includes

[00:26:31] Speaker 03:
a distributed document handling subsystem.

[00:26:35] Speaker 00:
Yes, and the patent is explicit that the distributed document handling subsystem is simply a collection of conventional office equipment connected by a conventional network.

[00:26:48] Speaker 00:
Those are the words of the patent themselves.

[00:26:51] Speaker 00:
We cite those portions of the specification in our brief.

[00:26:55] Speaker 00:
What's more, not only are the patents explicit,

[00:26:59] Speaker 00:
that the document handling subsystem is just a conventional set of devices.

[00:27:06] Speaker 00:
The patents... Where does it say that?

[00:27:08] Speaker 03:
The document subhandling system.

[00:27:12] Speaker 00:
It says it at column 8, line 1 through 5.

[00:27:15] Speaker 00:
I'm sorry, column... 8, line 1 through 5 of the 321 patent.

[00:27:18] Speaker 00:
That's at JA 49.

[00:27:26] Speaker 03:
Within system 10, a conventional network

[00:27:29] Speaker 03:
enables communication between a number of conventional office devices coupled to a network such as workstations.

[00:27:35] Speaker 03:
Where does that look?

[00:27:38] Speaker 00:
So if you look at that description there, and then you refer to Figure 1.

[00:27:45] Speaker 03:
This is not a description of Figure 1, by the way.

[00:27:47] Speaker 03:
It's a description of Figure 4.

[00:27:48] Speaker 03:
It says so expressly.

[00:27:49] Speaker 00:
True, but Figure 4 doesn't show the devices themselves.

[00:27:56] Speaker 00:
Figure 1 does.

[00:27:59] Speaker 03:
Here for shows devices on the bottom.

[00:28:02] Speaker 03:
Penguin.

[00:28:03] Speaker 03:
That figure.

[00:28:04] Speaker 00:
Yeah, figure four is a figure to describe sort of the process that would be used to.

[00:28:10] Speaker 00:
And that's what this is describing.

[00:28:13] Speaker 00:
OK, so let me point you to another section of the specification first, which is column three, line 67 on JA-47.

[00:28:26] Speaker 00:
It's at the very bottom of column three.

[00:28:28] Speaker 00:
Document handling subsystem 18 includes many typical types of office equipment.

[00:28:34] Speaker 00:
Personal computer 21, also called workstation 21, printer 36, multifunction fax machine 38, optical character recognition unit 40, infrared transceiver 41, and network 42.

[00:28:48] Speaker 00:
Those are all being described as typical in columns three to four.

[00:28:52] Speaker 00:
And then in column eight.

[00:28:53] Speaker 03:
Your body includes arms and legs.

[00:28:57] Speaker 03:
Have I just described all the features and functions and parts of your body?

[00:29:01] Speaker 00:
You have not, but the problem at these times is they don't disclose anything more than what is expressly defined to be typical.

[00:29:08] Speaker 03:
Don't they disclose an algorithm for enabling the communication that's going to take place?

[00:29:12] Speaker 00:
They do not.

[00:29:13] Speaker 00:
Nowhere do they, and Cloud Satchel hasn't identified one.

[00:29:16] Speaker 00:
They disclose, towards the end of the patent, they disclose a particular embodiment involving type software.

[00:29:23] Speaker 00:
But that, in fact, is not what's claimed, and Cloud Satchel doesn't say it is.

[00:29:28] Speaker 03:
So I just want to emphasize that between- So would this case come out differently if they had, in fact, disclosed by line their actual code for a document subhandling system that was now capable, because never before had there existed, assuming this is true, which we have no idea on this record, but assuming never before had there existed the capability at all

[00:29:51] Speaker 03:
of retrieving large documents from a portable electronic device.

[00:29:56] Speaker 03:
Suppose that had never existed before.

[00:29:58] Speaker 03:
And they created a software package that made that happen, that effectively expanded the memory of the portable software device in a way that had never been done before and had never even been capable of being done.

[00:30:10] Speaker 03:
And suppose there were all kinds of articles that said how great it would be if you could do this, but nobody could figure out how to do it.

[00:30:15] Speaker 03:
So suppose they wrote a software package that did that.

[00:30:18] Speaker 03:
And they actually included the code here in this patent.

[00:30:21] Speaker 03:
Would that be enough?

[00:30:23] Speaker 00:
I think if all the software and the code described was the idea of associating documents with document references and then using those document references to retrieve documents that have been stored elsewhere, the answer is no, because all the software code there has described

[00:30:39] Speaker 00:
is essentially the idea of associating documents with document references itself.

[00:30:45] Speaker 00:
And that's an abstract idea, even if it's useful, even if it's new, even if it's a great discovery.

[00:30:51] Speaker 00:
How do you distinguish DDR?

[00:30:56] Speaker 03:
DDR involved an abstract idea, but what was critical in that case was that the invention at issue went to improving

[00:31:04] Speaker 03:
the functioning of the computer itself.

[00:31:05] Speaker 03:
And the Supreme Court expressly said that in one of its opinions, right, which is where DDR got the idea for it.

[00:31:10] Speaker 00:
This case is not like DDR.

[00:31:12] Speaker 00:
This is like the Internet Patents case that was stated DDR.

[00:31:16] Speaker 00:
In the Internet Patents case, same situation.

[00:31:19] Speaker 00:
The technology supposedly solved.

[00:31:20] Speaker 03:
But why isn't this like DDR?

[00:31:22] Speaker 00:
Let me refer first to the Internet Patents case and differentiate that from the DDR case if you don't mind.

[00:31:27] Speaker 03:
Well, good luck, because, you know, if you want to, why don't you start with Ultramural and tell me how DDR is different from that?

[00:31:33] Speaker 03:
I mean, it just seems like this case falls squarely within the DDR layer.

[00:31:37] Speaker 00:
I can start with DDR then.

[00:31:39] Speaker 00:
So one reason this case is not like DDR is for a reason that the court has since articulated in the intellectual ventures case.

[00:31:49] Speaker 00:
DDR has no applicability where the claims are not directed to an internet specific problem and an internet specific solution.

[00:31:59] Speaker 00:
First, the claims here are not limited to the internet.

[00:32:03] Speaker 00:
as opposed to other networks.

[00:32:06] Speaker 00:
Second, the problem that's being described in the claims and that the applicants purported to solve is not an internet specific problem or solution.

[00:32:17] Speaker 00:
The problem is limited portable storage capacity.

[00:32:22] Speaker 00:
Cloud Satchel itself has acknowledged that that's the problem that the patents were purporting to solve.

[00:32:26] Speaker 00:
Cloud Satchel says the problem is that storage needs were

[00:32:32] Speaker 00:
were in excess of storage capacity, and the problem of limited portable storage capacity is one that has existed for centuries, because as a human, I can't carry all the books that a shelf can hold.

[00:32:47] Speaker 00:
Just like in the background of the invention section of the patent,

[00:32:50] Speaker 00:
The applicant said, it's impossible for the mobile worker and practical for the mobile worker to carry with him all of the paper documents he has.

[00:33:00] Speaker 00:
The solution to that old problem that has been used for centuries is using document references.

[00:33:06] Speaker 03:
So your only distinction from DDR is internet?

[00:33:09] Speaker 00:
That's not my only distinction.

[00:33:10] Speaker 03:
Is that the only one that this isn't the internet?

[00:33:12] Speaker 03:
This doesn't involve the internet exclusively or clearly exclusively.

[00:33:15] Speaker 00:
So those are two different distinctions.

[00:33:17] Speaker 00:
One, it's not specific to the internet.

[00:33:18] Speaker 03:
to describing... So you believe DDR is limited, 100%, there are no exceptions for abstract ideas but for ones that relate to the internet.

[00:33:27] Speaker 03:
Boy, wouldn't that be a very strange whole lot.

[00:33:29] Speaker 00:
That's not what I was suggesting.

[00:33:31] Speaker 04:
What I was suggesting is... What was your second grant?

[00:33:33] Speaker 04:
You said one is that it isn't related to the internet, and secondly... So first of all, I just want to distinguish what I'm seeing as one and two.

[00:33:42] Speaker 00:
Why is things maybe related to computers, but not related to the internet?

[00:33:46] Speaker 00:
I would say these patents here are related to computers.

[00:33:48] Speaker 03:
So if you improve the internet, the functioning of something on the internet, that's OK.

[00:33:52] Speaker 03:
But if you're improving the functioning of computers themselves, not OK?

[00:33:56] Speaker 00:
No.

[00:33:57] Speaker 00:
All I'm saying is this court has recognized that the DDR case has no applicability when we're not talking about solutions, problems that are specific to the internet, and solutions that are specific to the internet.

[00:34:08] Speaker 00:
These pens do not, in the intellectual adventures case, the court said DDR has no applicability here because these are not internet specific problems.

[00:34:21] Speaker 00:
Now, my other basis for distinguishing this case from DDR is that in DDR, at step two, the court determined that the claims recited something unconventional, an unconventional use of the internet and told the public

[00:34:38] Speaker 00:
how to use computers and the internet in a way that they hadn't been using before.

[00:34:42] Speaker 00:
It hadn't been used before.

[00:34:43] Speaker 00:
Here, by the express terms of patent, all of the devices are defined to be conventional or typical.

[00:34:55] Speaker 03:
And I just wanted to refer to... But aren't they using them in a way that's never been done before, just like DDR?

[00:35:00] Speaker 00:
The only arguable way in which they're not, according to the applicants, was

[00:35:07] Speaker 00:
is just a manifestation of the idea itself of sending documents and document references separately from one another.

[00:35:14] Speaker 00:
But that's the same idea as any other plotting system.

[00:35:17] Speaker 00:
And in the internet patents case, this court held when all the claims to do is describe a result and don't tell you what way you should use to implement that result, the claims are invalid under 101.

[00:35:31] Speaker 00:
And that's what the claims here do.

[00:35:33] Speaker 00:
They are indifferent about the portable device that's being used.

[00:35:37] Speaker 00:
The specification expressly says that the portable device can be any suitable computer.

[00:35:45] Speaker 00:
The claims are absolutely agnostic about how that computer is programmed.

[00:35:51] Speaker 00:
They're agnostic about how the document handling subsystem is programmed.

[00:35:58] Speaker 00:
They say nothing about it.

[00:36:00] Speaker 00:
The claims are agnostic about what transceiver is used, about what

[00:36:05] Speaker 00:
electronic document references used.

[00:36:09] Speaker 00:
I want to refer quickly to counsel's suggestion that dependent claim four discloses the URL.

[00:36:18] Speaker 00:
The way a URL is described at column four of the 321 pen is that it's a way for the World Wide Web to specify where a particular resource is located at the internet while at the same time describing the tool that is required to access it

[00:36:34] Speaker 00:
and specifying the actual file's location on the internet post.

[00:36:38] Speaker 00:
There's nothing in claim four that describes this part of describing the tool that's required to access it.

[00:36:45] Speaker 03:
If the claim is limited to a portable electronic document reference transport device, do you think that's any portable electronic device?

[00:36:57] Speaker 03:
I understand the specs that could work with any portable electronic device.

[00:37:04] Speaker 03:
Is it possible portable electronic document transport device is a particular kind of portable device?

[00:37:11] Speaker 00:
Well, the claim certainly doesn't say that it is.

[00:37:14] Speaker 00:
The spec tells us that it can be any form of portable computer.

[00:37:18] Speaker 00:
What Hal Satchel argued below is that it's any device that's capable of storing an electronic document reference.

[00:37:26] Speaker 00:
We, based on a prosecution disclaimer argument of Hal Satchel, suggested that the device isn't one that stores

[00:37:33] Speaker 00:
documents but only stores references.

[00:37:35] Speaker 00:
But no matter how you come out on that question, ultimately the device is just a general purpose computer as it's described by the claims.

[00:37:44] Speaker 00:
It just has a processor, I mean, I'm sorry, as it's described by the specification.

[00:37:48] Speaker 00:
It just has a processor.

[00:37:49] Speaker 00:
The spec is clear that the portable device functions in the same way as any other portable computer.

[00:37:58] Speaker 00:
And there's nothing in the spec that limits the portable device

[00:38:01] Speaker 00:
or the claims for that matter to any particular kind of programming.

[00:38:05] Speaker 00:
That's the argument that we get into under section 112.

[00:38:08] Speaker 00:
I see I'm over my time, but I don't know.

[00:38:12] Speaker 02:
Yeah, I mean, if you need a few more minutes only because we were up for the other side.

[00:38:18] Speaker 00:
I would like to take a few more minutes just to address a few small points.

[00:38:20] Speaker 02:
Okay, we were up five over, so take a couple more minutes.

[00:38:27] Speaker 00:
I want to get back quickly to the idea that Council raised of the ability to use these portable devices from across the world.

[00:38:35] Speaker 00:
The claims do not require any remoteness between the portable device and the device that stores the complete documents.

[00:38:43] Speaker 00:
Cloud Satchel itself made that argument at page 31 of its opening brief.

[00:38:47] Speaker 00:
The portable device could be in the very same room as the device that stores the complete documents.

[00:38:53] Speaker 00:
But even if the claims did require that kind of remoteness,

[00:38:57] Speaker 00:
All that Cloud Satchel is getting to is that it's possible with computers to achieve a retrieval function more quickly than it would otherwise be if you had to send a messenger from one part of the world back to some other part of the world, to the library to get the document and to deliver it back.

[00:39:14] Speaker 00:
This court has said in the OIP case recently, the Intellectual Ventures case, the Bancorp case, that using computers to speed up

[00:39:25] Speaker 00:
a result and make it more efficient is not something that transforms an abstraction into something concrete.

[00:39:33] Speaker 00:
Judge Clevinger, I agree with you that this case is similar to content extraction and other cases that describe general abstract principles related to organizing data.

[00:39:44] Speaker 00:
And there's nothing at all in the claims

[00:39:55] Speaker 00:
that is inventive, supposedly inventive, other than this idea of using a document reference itself.

[00:40:03] Speaker 00:
The idea of using a document reference is what the inventors told the examiner was their invention.

[00:40:10] Speaker 00:
They said that at J372 to 373 in distinguished prior art on that basis.

[00:40:19] Speaker 00:
That may have been a useful solution.

[00:40:24] Speaker 00:
may have solved a problem with differential memory capacities between these two portable devices.

[00:40:33] Speaker 00:
But the Supreme Court has been explicit in Fluck and in later cases that even if that discloses something useful, the question is not usefulness.

[00:40:46] Speaker 00:
The question is, do the claims recite something significantly more than an idea?

[00:40:52] Speaker 00:
And here, the only

[00:40:54] Speaker 00:
Invention is this idea of using document references separately from the documents themselves.

[00:41:00] Speaker 00:
Judge, please.

[00:41:01] Speaker 02:
No, I think we have your argument.

[00:41:03] Speaker 00:
Thank you.

[00:41:03] Speaker 00:
Thank you very much.

[00:41:05] Speaker 00:
We respectfully request that the judge will be affirmed.

[00:41:10] Speaker 06:
A couple of very quick points I just want to make.

[00:41:14] Speaker 06:
In response to the discussion of DDR, let me read the first sentence of the background section of the intellectual ventures case that counsel says doesn't relate to the internet.

[00:41:24] Speaker 06:
It says, intellectual ventures owns the three patents at issue, the first two of which generally relate to activities on the internet.

[00:41:31] Speaker 06:
So the issue there was that this method claim, even relating to the internet, didn't have enough to not be a followed out.

[00:41:39] Speaker 06:
The same thing was true of the internet patents case.

[00:41:42] Speaker 06:
That related to an internet backward and forward button in a browser and whether it retained the state information of the page you had previously been on.

[00:41:50] Speaker 06:
So I just want to make clear that the idea that DDR was limited to the Internet, that was the basis of these two decisions, is completely false.

[00:42:00] Speaker 06:
It was other aspects of the analysis that led to the results in these two cases, which of course were invalid because they were

[00:42:06] Speaker 06:
method claims that for other reasons were flawed.

[00:42:10] Speaker 06:
I also want to point out in the spec that at JE-51 column 11, the very last two lines, it talks about the portable electronic device being physically separate from the document handling subsystem.

[00:42:24] Speaker 06:
Also in the 997 patents claim, one of that patents talks about wireless links.

[00:42:36] Speaker 06:
There isn't, I agree, there isn't a degree of remoteness that's happening on the other side of the world.

[00:42:42] Speaker 06:
But the point is, this is clearly set up to be a portable and remote system.

[00:42:47] Speaker 06:
And for all those reasons and the combination of factors here, unless the court has any additional questions, we ask that the decision be reversed.

[00:42:55] Speaker 06:
And by the way, on either, of course, step one or step two of ALICE, if either of those you disagree with at this court, then we have to go back for further proceedings.

[00:43:05] Speaker 01:
Thank you.

[00:43:05] Speaker 01:
We thank both counsel and the case is submitted.