[00:00:03] Speaker ?:
I don't know if you can hear me or not, but you can hear me.

[00:00:31] Speaker 04:
Thank you very much.

[00:01:04] Speaker 01:
the united we have uh... or cases this morning the first of these is number fourteen sixteen thirty-one died all innovations l l c verses bravo media

[00:01:33] Speaker 02:
Mr. Butcher, is that how you pronounce it?

[00:01:44] Speaker 02:
Butcher.

[00:01:45] Speaker 02:
My name is Eric Butcher and I represent the plaintiff in the case below and the appellant here, Diet Goal.

[00:01:51] Speaker 02:
This appeal involves a patent invented by Dr. Oliver Alabaster, who happens to be here in the courtroom with us.

[00:02:00] Speaker 02:
Once again, the court is being asked to address the issue of how to apply the abstract ID exception in the context of a computer implemented invention.

[00:02:11] Speaker 02:
In this case, the district court invalidated 61 claims, all of the claims of this patent.

[00:02:19] Speaker 02:
And we believe that the district court did so by not giving enough weight to the key limitations in the patent

[00:02:27] Speaker 02:
that make this a particular application of meal planning that is computer implemented and those implementations are central to the invention.

[00:02:37] Speaker 02:
And as a result, erroneously invalidated these claims.

[00:02:41] Speaker 02:
The court did not conduct any claim construction ruling, but more importantly, I think the decision reflects a misapprehension by the court of these key limitations and a failure to give them the weight that they should

[00:02:55] Speaker 02:
had he done so, we think, or had any judge done so, we think he would have reached a different conclusion.

[00:03:00] Speaker 03:
Is your argument that the court should have undertaken claim construction before ruling on it?

[00:03:06] Speaker 02:
Good question.

[00:03:07] Speaker 02:
I think this court can rule on this matter without sending it back down for further claim construction, because we believe that the claim language on its face

[00:03:18] Speaker 02:
is enough to show that there are meaningful limitations that restrict the scope of the claims to a particular application that does not preempt the entire idea of meal plans.

[00:03:28] Speaker 03:
So you're saying that the court did not have to engage in claim construction?

[00:03:34] Speaker 02:
I think the problem is that the court didn't engage in any rigorous analysis of the claim terms and what their impact was on the 101 issue.

[00:03:42] Speaker 02:
Had it done so, I think it would have reached a different conclusion, which is why we agreed to the early ruling on the summary judgment motion in this regard.

[00:03:49] Speaker 02:
We were not trying to drag this out and avoid the issue.

[00:03:51] Speaker 02:
We think the issue is fairly clear from the language of the claims that they do have these key limitations that preclude preemption of the general concept or idea of meal planning.

[00:04:03] Speaker 02:
So my point about his failure, the judge's failure to do a claim construction, I think that led to a faulty 101 analysis.

[00:04:11] Speaker 02:
Had he done a claim construction analysis, I think he would have understood the limitations better and applied them more appropriately, which is why this court has said, although claim construction is not required, it is often desirable.

[00:04:25] Speaker 02:
And I think this case exemplifies that desirability, because it leaves you with a rather imprecise record to deal with.

[00:04:33] Speaker 02:
Luckily, I believe that the claim limitations that are key

[00:04:36] Speaker 02:
are adequate enough to enable this court to not have to guess at what the claims mean, but determine that they do have meaningful limitations.

[00:04:45] Speaker 02:
Now, those key limitations are the customized eating goals, which the Texas court and then Judge Engelmeyer's sister, Judge, in the time case, both held that... What case is it that says that if you have an abstract idea, if you only claim part of it,

[00:05:05] Speaker 01:
I'm sorry.

[00:05:05] Speaker 01:
I'm sorry.

[00:05:06] Speaker 01:
What case says that if you have an abstract idea that's computer implemented and you claim only part of the abstract idea?

[00:05:15] Speaker 01:
Well, yeah, I think... That says that that renders it patentable.

[00:05:20] Speaker 01:
What case says that?

[00:05:21] Speaker 02:
I believe Alice confirmed what Mayo and other courts have said, which is that an abstract idea itself is not patentable, but a practical application of that idea is patent eligible

[00:05:32] Speaker 02:
because it doesn't preempt the entire abstract concept.

[00:05:37] Speaker 02:
And preemption, as the court now has emphasized, is the key concern driving this exception.

[00:05:44] Speaker 02:
It's an exception that should be narrowly applied.

[00:05:46] Speaker 02:
And I think it was happening overall, but particularly in this case, is that that exception is not being cabined and narrowly applied.

[00:05:54] Speaker 02:
It's being applied without a rigorous analysis of the claim terms

[00:05:58] Speaker 02:
And with a belief that there has to be a new machine, as this judge said.

[00:06:02] Speaker 03:
So what are the applications then that take you out of the embrace?

[00:06:07] Speaker 02:
Several.

[00:06:08] Speaker 02:
But the key one is the display limitations.

[00:06:10] Speaker 02:
But you have customized eating goals, which the Texas and New York time court said have to be computer implemented and cannot be merely a mental process.

[00:06:20] Speaker 02:
The picture menus limitation requires the display of meals

[00:06:25] Speaker 02:
from which the user can select a meal to meet those customized eating goals.

[00:06:31] Speaker 02:
The meal builder required a display of meals that the user can create or change.

[00:06:37] Speaker 02:
What's new or unconventional about a display?

[00:06:40] Speaker 02:
Well, what's new about this display, this is not post-solution activity.

[00:06:43] Speaker 02:
This is not merely the result of some computation done by the computer.

[00:06:48] Speaker 02:
One of the key objectives of this invention was visual training.

[00:06:54] Speaker 02:
for meal planning.

[00:06:56] Speaker 02:
And that's the name of the patent.

[00:06:57] Speaker 01:
And throughout the patent... But what's innovative?

[00:07:00] Speaker 01:
What's innovative is that rather than... It's rather common to have pictures of meals in connection with diets.

[00:07:06] Speaker 02:
Not that have the interactivity that this patent claims.

[00:07:09] Speaker 02:
The picture menus, the display of meals has to enable the user to select a meal from that display.

[00:07:17] Speaker 02:
The display of the meal builder requires the user to be able to

[00:07:21] Speaker 02:
either create the meal or change it.

[00:07:24] Speaker 03:
How is that different from going through a box full of recipes and looking at the pictures and saying, well, I don't know about this one.

[00:07:31] Speaker 03:
Maybe this is a good one.

[00:07:33] Speaker 02:
Well, in this case, the display accurately reflects exactly what the user is choosing as his or her food objects and overall meal.

[00:07:41] Speaker 02:
And so there is this interactivity and external visual display that is important in the training techniques that the patent teaches.

[00:07:50] Speaker 02:
I think this is very much like the DDR case in that what was innovative there was a display of a website store and what made it innovative was it had this hybrid concept so you thought you were still of the same website when actually you were taken via an advertising click to a different set of information but it was portrayed in a way

[00:08:15] Speaker 02:
that didn't give you the feeling that you just got moved to a different website.

[00:08:19] Speaker 02:
I think this is similar in that the display functions here are critical to the solution that the patent offers.

[00:08:26] Speaker 02:
They're central to it.

[00:08:27] Speaker 02:
The patent explains that in some detail.

[00:08:30] Speaker 02:
And they're not post-solution activity.

[00:08:33] Speaker 02:
They are central and integral to the invention.

[00:08:39] Speaker 02:
And therefore, they ground it in something other than generic computer functionality.

[00:08:45] Speaker 02:
And we just think that the district court below did not give sufficient weight to these key limitations.

[00:08:52] Speaker 02:
Instead, you saw that he viewed the patent holistically and tried to determine the totality of the invention and what the essence of the invention is.

[00:09:01] Speaker 02:
And this court has repeatedly said... Let's go back to Judge Dark's question.

[00:09:04] Speaker 03:
What's the inventive step?

[00:09:06] Speaker 02:
The inventive concept here that takes it out of just merely applying an abstract idea on a computer is requiring this interactivity between the user and the visual display and giving the user this external visual display of what it is that he is thinking about eating and whether that will meet coincide with whatever dietary objectives the user has, whether it's caloric intent or carbs.

[00:09:34] Speaker 02:
or cholesterol.

[00:09:37] Speaker 02:
But people do this all the time.

[00:09:38] Speaker 02:
But it's a very cumbersome process to try to do it manually.

[00:09:42] Speaker 02:
I mean, it's hard to actually... I mean, a picture that you see in a recipe book may have all kinds of foods that you're not choosing.

[00:09:50] Speaker 02:
And it may have other sizes or amounts of foods that you're not choosing.

[00:09:54] Speaker 02:
So it is a very inartful

[00:09:57] Speaker 02:
a poor technique.

[00:09:58] Speaker 02:
Yeah, but we've said, have we not, that doing it faster doesn't make it faster?

[00:10:03] Speaker 02:
In this case, it's not faster.

[00:10:05] Speaker 02:
It is better and it's more accurate.

[00:10:06] Speaker 02:
And because of that interactivity and you get shown what you select or what you specify, the visual training is much more improved.

[00:10:16] Speaker 02:
In fact, even Judge Engelmeyer acknowledged that this appeared to be a new and improved visual training device.

[00:10:22] Speaker 02:
He thought, though, that the computer has to be a new machine in order to be patent eligible.

[00:10:27] Speaker 02:
Or the code, there has to be a specified formula.

[00:10:31] Speaker 02:
And this court has never required that.

[00:10:34] Speaker 02:
So when you look at these limitations, again, this is rooted in the computer.

[00:10:41] Speaker 02:
This is not data gathering or data retrieval or data storage.

[00:10:48] Speaker 02:
Those kind of acknowledged

[00:10:51] Speaker 02:
generic routine functions that computers do.

[00:10:54] Speaker 02:
This has this interactivity of the display central to the solution of the patent, and therefore it's a particular application of meal planning and not generically claiming the entire abstract idea.

[00:11:06] Speaker 02:
And in fact, the patent itself distinguishes two pieces of very close prior art, the Kutch patent and the Dennison patent, and distinguished this invention over those two prior art references

[00:11:20] Speaker 02:
on many grounds, but one of them was, in Denison, it was, excuse me, your honor, no graphic visual displays are provided, which further detracts from ease of use, comprehension, and effectiveness.

[00:11:38] Speaker 02:
And then the Kutch patent, which was a computerized method of meal planning that had a display even, the patent

[00:11:45] Speaker 02:
explains why the invention claimed here is distinguishable over that patent and I submit your honors that clearly the invention here does not cover those two prior art computer implemented meal planning techniques and therefore it clearly doesn't preempt the abstract idea of meal planning because Cooch and Dennison

[00:12:08] Speaker 02:
dealt with computer-implemented meal planning with a display.

[00:12:11] Speaker 02:
I mean, again, it was close prior art, but the patent was distinguished over it.

[00:12:17] Speaker 02:
And so therefore, I think it's fairly evident that this is a particular application that avoids preempting the entire idea, abstract idea, of meal planning.

[00:12:28] Speaker 02:
The other issue that we have with Judge Englemeyer's ruling is that, one, his assertion, if you will,

[00:12:36] Speaker 02:
the limitations of the claims merely are generic computer functionality.

[00:12:40] Speaker 02:
I think it's belied by the language of the claims.

[00:12:44] Speaker 02:
Again, there's nothing generic about this very specific implementation of the display of the meals.

[00:12:54] Speaker 02:
And furthermore, there is no evidence to say that this is generic.

[00:12:57] Speaker 02:
And we're getting into an area here with this issue where

[00:13:00] Speaker 02:
courts are just throwing out the word generic and sometimes it's a fact issue although this question of 101 is a question of law there are underlying fact issues and i believe that the judge here at a minimum overstepped his grounds when he made these findings if you will without any evidence in the record to support them i'm into my rebuttal time your honor so if you have i'm here right now if you have any questions further questions otherwise i'll save my time thank you your honor

[00:13:30] Speaker 02:
Mr. Caroline.

[00:13:37] Speaker 00:
May it please the court.

[00:13:38] Speaker 00:
This morning, my personal eating goals were high protein, so I would be alert all morning and answer questions, and more fruit and vegetables, because my wife tells me I need to eat more of those.

[00:13:49] Speaker 00:
So at breakfast, I looked at the menu.

[00:13:51] Speaker 00:
I pictured the options in my head.

[00:13:53] Speaker 00:
And I built my meal by selecting an omelet, some Greek yogurt, and a banana.

[00:13:59] Speaker 00:
By building my meal that way, I was fairly confident that I would indeed meet my eating goals for the day.

[00:14:05] Speaker 00:
What I did this morning to build my meal to meet my eating goals is what people had been doing every day for centuries.

[00:14:13] Speaker 00:
That is the abstract concept that this patent tries to claim.

[00:14:18] Speaker 00:
While the patent does sprinkle in various elements for a computer, such as a display or a database,

[00:14:25] Speaker 00:
The Supreme Court in Alice confirmed that the addition of these conventional computer elements to perform a fundamental method of organizing human activity is not sufficient to pass muster under section 101.

[00:14:42] Speaker 03:
It seems to me that your opponent was arguing that this interaction between the different displays and the user choosing meal items to add, you can add a pork chop and drop it into for breakfast and go, no, I don't want a pork chop.

[00:14:59] Speaker 03:
Let me have a chicken fried steak and you drop.

[00:15:02] Speaker 03:
And it gives you caloric count immediately.

[00:15:05] Speaker 03:
Can you do that in your head?

[00:15:06] Speaker 00:
You can do it on your head or with pen and paper.

[00:15:10] Speaker 00:
It's something else.

[00:15:12] Speaker 00:
I don't have memorized in my head the calories of say, egg whites in an omelet versus whole eggs in an omelet, but I can certainly figure that out.

[00:15:24] Speaker 03:
Wouldn't that be an inventive concept here, that you have this access to the caloric count of a wide array of meal choices?

[00:15:33] Speaker 00:
That is not an inventive concept.

[00:15:35] Speaker 00:
your honor that all that is is applying what has been done before and could be done by looking something up in a recipe book adding it up on paper and instead porting that to your very basic computer functionality which I mean computers what they do is they receive user input selecting the port chop they tabulate totals and they report output on a display that's what computers have been doing

[00:16:00] Speaker 00:
for years before this patent application was filed.

[00:16:03] Speaker 00:
And that is not an inventive concept.

[00:16:05] Speaker 00:
That is not new technology.

[00:16:07] Speaker 00:
That is not something that is separate from the fundamental concept of meal planning to meet eating goals.

[00:16:17] Speaker 00:
And Alice confirmed this, because in Alice, it was the same situation where intermediated settlement had been done.

[00:16:24] Speaker 00:
It was complicated.

[00:16:25] Speaker 00:
It was not exactly the easiest to count things up in your head that way, but it could be done separately.

[00:16:30] Speaker 00:
And in cyber source, the cyber source is another case where the idea that something can be done mentally is sufficient to find that it is excluded from section 101.

[00:16:44] Speaker 00:
I would say that on step one itself,

[00:16:48] Speaker 00:
Not only did the district court just get this right on whether it's an abstract concept because it fits within this line of cases where the court has found that methods of organizing human activity are not sufficient and they are abstract, and that they are mental steps.

[00:17:04] Speaker 00:
Not only did the district court get it right on the merits, but Diet Goal did not even argue that step one should be revisited in its appeal brief.

[00:17:14] Speaker 00:
It said instead that

[00:17:15] Speaker 00:
While it did say that there was a two-step test from the Supreme Court, it said that step one is of limited utility and decided to move on to step two.

[00:17:23] Speaker 00:
So there's been a waiver on the question of whether this is an abstract concept.

[00:17:27] Speaker 00:
And instead, the focus of the court and the focus of Diet Goals Brief is on whether there is that something extra that takes this out of the realm of abstract and provides an inventive concept.

[00:17:39] Speaker 00:
On step two,

[00:17:40] Speaker 00:
As I said, the claims fail to add anything.

[00:17:44] Speaker 00:
Diet Goal points to a bunch of very conventional points.

[00:17:48] Speaker 00:
The meal database, well having a database that is populated specifically with meal information is simply using basic computer storage technology applied to this concept.

[00:17:58] Speaker 00:
Picture menus, showing images of food, that's basic display technology that happens, yes it happens to be on this particular concept, but in the same way in Accenture, in Accenture

[00:18:11] Speaker 00:
There were databases for storage.

[00:18:14] Speaker 00:
There were processors for performing the specific abstract concept.

[00:18:18] Speaker 00:
But just because you've taken generic computer technology and applied it to the particular abstract concept does not magically make this an implementation.

[00:18:28] Speaker 00:
In the end, there is simply nothing new.

[00:18:30] Speaker 03:
How do you respond to his argument on the DDR case?

[00:18:32] Speaker 00:
Yes.

[00:18:33] Speaker 00:
On DDR, DDR was a very different case because there, what the court found was that

[00:18:40] Speaker 00:
It was not an abstract concept that existed separately from computers and the Internet.

[00:18:45] Speaker 00:
Instead, the concept there of trying to make sure that people didn't move from one website to another, you wanted to keep people on your site, that is a concept and a problem that exists solely on the Internet.

[00:18:57] Speaker 00:
So it was an Internet problem and an Internet solution, an Internet concept and an Internet solution.

[00:19:03] Speaker 00:
Here, what we have is a fundamental concept that's been around long before computers.

[00:19:08] Speaker 00:
As the district court found, it's at least as long-standing as for many of the other cases that have been found to be abstract, such as intermediated settlement and playing bingo, those types of things.

[00:19:21] Speaker 00:
Planning meals has been around for much longer than those.

[00:19:24] Speaker 00:
So that takes us away from DDR because here the concept is fundamental, has been around long before computers, and all that diet goal has done is add it to a computer to try to make it faster and prettier.

[00:19:38] Speaker 00:
That's not sufficient under Alice.

[00:19:42] Speaker 00:
The district court performed a very careful, thorough analysis.

[00:19:45] Speaker 00:
It looked at the guidepost cases that the Supreme Court has said is how this issue should be decided.

[00:19:50] Speaker 00:
It applied those cases to the undisputed intrinsic record.

[00:19:54] Speaker 00:
And in the end, it gave Dietgold every chance to make it the best case.

[00:19:58] Speaker 00:
Dietgold failed to do so, nor could it.

[00:20:01] Speaker 00:
The claims fail.

[00:20:02] Speaker 00:
Section 101 and summary judge should be affirmed.

[00:20:05] Speaker 01:
In the ALIS, three of the justices concurred and said that the rule should be that methods of organizing human activity are simply unpatentable without going through this more complex analysis.

[00:20:20] Speaker 01:
Is it open to us to do that?

[00:20:23] Speaker 00:
No, Your Honor.

[00:20:23] Speaker 00:
This court must follow the Mayo-ALIS two-step process.

[00:20:29] Speaker 00:
And that's what we would ask the court to do.

[00:20:42] Speaker 02:
Your Honor, Judge Mayer, with regard to your question about DDR and with respect to what Judge Dyke just said, Bilsky in the Supreme Court said that business methods are patent eligible.

[00:20:54] Speaker 02:
In fact, I was here in 1999 in the AT&T XL case on the other side of the question where that law was established then and it is the law of the land here.

[00:21:06] Speaker 01:
How business methods are broader than methods of organizing human activity?

[00:21:10] Speaker 02:
Well, yeah, I'd say they're cousins, if you will.

[00:21:14] Speaker 02:
The business methods are economic principles or long-standing commercial practices that are tempted to be modified.

[00:21:21] Speaker 02:
Most of those fail, but they are still patent eligible.

[00:21:24] Speaker 02:
So the fact that this invention is not confined to the technological process doesn't mean it is detached from technological arts, if you will.

[00:21:35] Speaker 02:
And therefore it is rooted in computer technology.

[00:21:37] Speaker 02:
What makes it inventive is the external display that a computer monitor gives to a user.

[00:21:45] Speaker 02:
So I think that that's an important distinction here.

[00:21:49] Speaker 02:
And so the fact that it relates to meal planning, which is outside of the technological realm, doesn't mean it is divorced from the technological realm.

[00:21:57] Speaker 02:
Also, this court and Research Corp, I think, made an important statement, and the word or, I think, is being overlooked by some courts.

[00:22:06] Speaker 02:
Quote, inventions with specific applications or improvements to technologies in the marketplace are not likely to be so abstract that they override the statutory language and framework of the Patent Act.

[00:22:19] Speaker 02:
That's Research Corp 627 at 3rd at 869.

[00:22:24] Speaker 02:
And I think what's important there is that

[00:22:27] Speaker 02:
specific application of an abstract idea is patent eligible.

[00:22:32] Speaker 02:
That this particular application is rooted in computer technology and this external display of a monitor I think makes that even more appropriate that the court avoid wiping out patent eligible inventions because they

[00:22:50] Speaker 02:
simply deal with a business method or a method of organizing human behavior.

[00:22:55] Speaker 03:
What are the computer implemented applications that are unconventional?

[00:23:03] Speaker 02:
I think unconventional, I think simply a display of a picture of a meal from a recipe site.

[00:23:12] Speaker 02:
correspondence between the food and what the user's goal is or chosen food objects or meal.

[00:23:19] Speaker 02:
Just a flat static picture that you can see on many websites.

[00:23:22] Speaker 02:
If you want to see a recipe for Cornish hen, it'll show you a Cornish hen.

[00:23:26] Speaker 02:
But there's no ability to select a meal from that.

[00:23:29] Speaker 02:
There's no ability to change that meal and view the impact of that change on your goals.

[00:23:34] Speaker 02:
That's what I think takes this out of the preemption of an abstract idea.

[00:23:38] Speaker 02:
and makes it a practical or specific application of that idea in a computer context.

[00:23:44] Speaker 02:
But isn't that what computers do?

[00:23:46] Speaker 01:
You make a change and the computer tells you what the consequences are.

[00:23:49] Speaker 02:
But this is not a mere calculation.

[00:23:51] Speaker 02:
I think the court has had problems with inventions that merely calculate things and do it faster.

[00:23:57] Speaker 02:
These are not mere calculations being done.

[00:24:00] Speaker 02:
It's much more than that.

[00:24:01] Speaker 02:
My time is up.

[00:24:03] Speaker 02:
Thank you.

[00:24:11] Speaker 01:
Okay, our next case is