[00:00:00] Speaker 01:
Cases involving the same parties, although I guess different people are arguing it for the Patent Office.

[00:00:04] Speaker 01:
And since they involve these great, discrete issues, we haven't done what we normally do, which is to combine all of these cases.

[00:00:11] Speaker 01:
So we're going to argue them each separately.

[00:00:14] Speaker 01:
Hopefully you might not need all of the time that is otherwise allotted to separate appeals.

[00:00:18] Speaker 01:
But let's get started.

[00:00:19] Speaker 01:
14, 1429 in-rate gross.

[00:00:27] Speaker 01:
And the first appeal is the 1429.

[00:00:30] Speaker 00:
Yes, Chief Judge, good morning, and may it please the court?

[00:00:36] Speaker 00:
I'm here to argue all three of the cases, as your honors mentioned.

[00:00:39] Speaker 00:
They are all three related by subject matter and by claims to some extent.

[00:00:43] Speaker 00:
There's some overlapping issues that I think are common to all three cases, which are good to, I think, have some kind of exposition as early as possible.

[00:00:51] Speaker 00:
There were issues raised by the solicitor's office due to the new Alice case, which I think are common to a couple of cases.

[00:00:58] Speaker 00:
So as much as possible, try to address them in the logical order.

[00:01:04] Speaker 00:
The first case, the reason we're here today for this first case is simply this.

[00:01:09] Speaker 00:
The four or five things I want to talk about are the original decision from the Board of Appeals was incorrect in that it completely refrained the examiner's rejection of the record.

[00:01:21] Speaker 00:
For that reason, we believe that it did not have the authority to recast the rejection the way that it did.

[00:01:27] Speaker 03:
It invited you to respond, right?

[00:01:32] Speaker 03:
It didn't at some point say, we'll treat this as a new ground of rejection.

[00:01:38] Speaker 03:
You can tell us.

[00:01:40] Speaker 03:
So what's the process violation in terms of concrete opportunity for you to answer this?

[00:01:48] Speaker 00:
That's a good point, Your Honor.

[00:01:50] Speaker 00:
The reason why this is a little bit different than a new grounds rejection, I believe, is that I think the difference between a case that's presented to the board that they resolve or look at on their merits and say, yay or nay, and a case where they say, no, we're not going to look at the decision you brought before us.

[00:02:07] Speaker 00:
We're going to invent a whole other case and rule on that.

[00:02:11] Speaker 00:
So what we have here is we don't have resolution of the underlying case.

[00:02:15] Speaker 00:
and they expressly admit in their page.

[00:02:17] Speaker 03:
Let me see if I understand concretely what you're talking about.

[00:02:20] Speaker 03:
This is the difference between the examiner having kind of invoked the acid rain article as a combination versus the board saying, you start with Hastings, you ask, would somebody of an ordinary skill in the art think to have trading of slots?

[00:02:43] Speaker 03:
Yeah, that's commonsensical, but we're going to do what is a pretty darn good idea to do, which is to cite something documentary to support the commonsense.

[00:02:55] Speaker 03:
That's the difference?

[00:02:56] Speaker 00:
Your Honor, as Sid has pretty much framed it correctly, the examiner repeatedly in every single office action said, I'm rejecting the claim under 103 based upon Hastings plus this acid rain article.

[00:03:09] Speaker 00:
And here's how I'm combining them.

[00:03:12] Speaker 00:
That theme is repeated in all of his papers.

[00:03:14] Speaker 00:
That's the theme we addressed in Appeals.

[00:03:16] Speaker 01:
OK, but what's, I mean, the board did a new ground of rejection, right?

[00:03:20] Speaker 01:
And they're allowed to do that, and you get the right to respond.

[00:03:23] Speaker 00:
And I'm saying, Your Honor, it's a little bit different in that if you look at their papers, if you look at the original decision, they repeat the examiner's rejection exactly as I've articulated it.

[00:03:33] Speaker 00:
They say, this is the rejection, K-6 plus acid rain.

[00:03:37] Speaker 00:
They go on to then talk about that question.

[00:03:40] Speaker 00:
But in the end,

[00:03:41] Speaker 00:
They'd say, oh, this is really official notice.

[00:03:44] Speaker 00:
To which we said, we're sorry, your honor, but to the board, but official notice was not raised in underlying rejection.

[00:03:52] Speaker 00:
And they said, no, you got it completely wrong.

[00:03:55] Speaker 00:
The examiner's rejection really was official notice.

[00:03:58] Speaker 00:
Go back and read it again.

[00:03:59] Speaker 00:
And so our position is if you read the examiner's rejection, if you even read the board's first opinion, it completely confirms what we said.

[00:04:08] Speaker 00:
Namely, the rejection was based upon those two references.

[00:04:12] Speaker 00:
Therefore, there were issues presented there in that question, which was, number one, is this reference even analogous art?

[00:04:20] Speaker 00:
That's a very key question.

[00:04:21] Speaker 00:
We don't get the benefit of that ruling now.

[00:04:23] Speaker 00:
Neither we nor the examiner have the benefit of the board saying, that was the issue presented, here's the resolution.

[00:04:30] Speaker 00:
What we have is the board saying, we're going to ignore that question altogether.

[00:04:33] Speaker 00:
We're simply saying, this is Hastings Post-Official Notice.

[00:04:37] Speaker 00:
Fundamentally, I think those are two different things.

[00:04:39] Speaker 00:
I agree with you that new grounds is an acceptable point.

[00:04:42] Speaker 00:
But to say, we're going to ignore what you appealed, I think is a completely different question.

[00:04:49] Speaker 00:
Even with that said, as we mentioned in our papers, we believe that we did point out fairly clearly that official notice in this instance was not appropriate, because even if the board went back and said, well, look at everything the examiner did here, everything he says is really official notice, to which we said,

[00:05:09] Speaker 00:
That doesn't make any sense because the official notice is usually restricted to a few very basic facts, like I've got 10 different elements and one of them is a small variation.

[00:05:18] Speaker 00:
Okay, fine.

[00:05:19] Speaker 00:
I'll find something in the art which says that variation is commonly known.

[00:05:23] Speaker 00:
I can deal with that fine.

[00:05:25] Speaker 00:
But the examiner's explanation, if you will, of the reference was so comprehensive and so argumentative, we said,

[00:05:32] Speaker 00:
that clearly cannot qualify as being official notice, at least not within the rules as we know them.

[00:05:38] Speaker 00:
Furthermore, we were never given an opportunity to address that point because official notice was not argued by the examiner.

[00:05:46] Speaker 00:
We also mentioned in our brief that, again, even taking the fact that the acid rain article was an example of what they called allocation sharing, it clearly wasn't a reference that was remotely relevant to this field of art.

[00:06:00] Speaker 00:
The examiner and the board both tried very hard to say, this is an old program, it's well-known, et cetera, et cetera, to which we said, okay, well, let's find that example of it being cited somewhere.

[00:06:11] Speaker 00:
This article, this reference, this program has never been cited by anybody, anywhere.

[00:06:16] Speaker 00:
Therefore, it almost meets the definition, not possibly, and it'll start to almost anything.

[00:06:22] Speaker 01:
What are you looking for?

[00:06:24] Speaker 01:
I mean, what would they have had to come forward with?

[00:06:26] Speaker 01:
What kind of reference to establish that this allocation sharing thing is just a generic concept that exists in the universe?

[00:06:34] Speaker 01:
What kind of evidence would they have had to go with?

[00:06:37] Speaker 00:
Your honor, I don't think that there's a zero universe of references in the electronics field, which might have dealt with capacity sharing.

[00:06:46] Speaker 00:
And we submitted some references to them, in fact, at that point.

[00:06:49] Speaker 00:
But they cited none of those.

[00:06:51] Speaker 01:
Is that the universe you're talking about?

[00:06:52] Speaker 01:
Do you think they're limited in terms of analogous art to the electronics field?

[00:06:57] Speaker 00:
No, I think, Your Honor, we did try to couch a little more carefully than that, but more concretely than that.

[00:07:01] Speaker 00:
But all I'm saying is that this particular reference, having never been cited for anything ever, just seemed completely beyond the pale of being anywhere near being analogous art.

[00:07:11] Speaker 00:
And again, the board did not rule that issue.

[00:07:14] Speaker 00:
They made no comment about it.

[00:07:16] Speaker 00:
And again, in our opinion, the reason is because they acknowledged that this was not analogous art.

[00:07:21] Speaker 00:
They didn't want to touch that question.

[00:07:23] Speaker 00:
So they went back and said, well, we're going to take what he really said.

[00:07:27] Speaker 00:
And they went so far as to rewrite his opinion, to rewrite a position.

[00:07:32] Speaker 00:
They said, here's what he really meant.

[00:07:35] Speaker 00:
Your Honor, I think we're entitled, from the black letter in the piece of paper that tells us what the rejection is, to respond to it, to change it so dramatically and tell you, no, you completely misread it.

[00:07:46] Speaker 03:
I think this is wrong.

[00:07:54] Speaker 03:
As I understand the issue of indefiniteness, the core ground was that fairly narrow class of cases that say in a single claim you can't mix product and process elements.

[00:08:14] Speaker 03:
That ground doesn't depend on our accepting the Miyazaki

[00:08:22] Speaker 03:
approach to the definiteness that the board has used, right?

[00:08:29] Speaker 00:
I don't believe so, no, Your Honor.

[00:08:30] Speaker 00:
I think that in this instance, what we point out in reply brief also was that in this particular field of art, this is not an unusual formulation of this kind of a claim.

[00:08:43] Speaker 00:
A claim in which machine components are given functional characteristics is not unusual.

[00:08:50] Speaker 00:
This was, again, this was a new issue raised by the Board on Appeal.

[00:08:53] Speaker 00:
Okay.

[00:08:54] Speaker 03:
It was... Once the Board raised that, assuming I'm just taking that as a premise for purposes of this question, did you have an opportunity to amend or do something to reformulate the claim in light of the identification of this problem?

[00:09:12] Speaker 00:
If we had let... I'm sorry.

[00:09:14] Speaker 00:
If we let the case go back to prosecution, if we had foregone our right to appeal,

[00:09:19] Speaker 00:
the case would have gone back to the examiner for further prosecution.

[00:09:23] Speaker 00:
Yeah, so we could have amended it potentially then.

[00:09:26] Speaker 00:
But at the time when the rejection was issued, that was a new rejection.

[00:09:31] Speaker 00:
The board just simply said, we don't like the claim was formulated.

[00:09:34] Speaker 00:
And the examiner never raised any objection to the claim whatsoever, by the way.

[00:09:38] Speaker 00:
So that was a new rejection issued by the board.

[00:09:43] Speaker 00:
I just want to, again, touch very briefly on just one other point, which is the

[00:09:48] Speaker 00:
The allocation sharing that they borrowed from Acid Rain, as we pointed out in our papers, I believe extensively, pages 22 to 31, there was a brief, what we pointed out was, okay, it's fine to talk about some systems that use allocation sharing, if you will, but everything you point out about this program is just simply wrong.

[00:10:11] Speaker 00:
If you try to mix it and match it, it doesn't work at all, and therefore it isn't the case

[00:10:16] Speaker 00:
But every form of allocation sharing is going to work in this particular environment.

[00:10:19] Speaker 00:
And again, we gave specific examples.

[00:10:21] Speaker 00:
The board said, well, this system has caps, for example, which is one of the things we talked about in the claim.

[00:10:27] Speaker 00:
And we said, well, there's really not caps in these pollution emission programs because you're allowed to have a cap.

[00:10:33] Speaker 00:
But then you can go way over it if you want to.

[00:10:35] Speaker 00:
And then at the end of the year, you have a reconciliation.

[00:10:37] Speaker 00:
You can pay some kind of penalty.

[00:10:39] Speaker 00:
That doesn't work in an online distribution system.

[00:10:42] Speaker 00:
where you're maintaining accounts and keeping people within certain restrictions.

[00:10:47] Speaker 00:
I can't send you 10 items and say, oh, you know what, I made a mistake.

[00:10:50] Speaker 00:
I'll take those five back now or pay for those five.

[00:10:54] Speaker 00:
All the little nooks and crannies, if you looked at them carefully, didn't quite work.

[00:10:58] Speaker 00:
And again, we pointed out to the examiner, there's better literature on this program.

[00:11:02] Speaker 00:
If you really want to study and look at it, there's materials which are pretty good on this program, which explains you how it works.

[00:11:08] Speaker 00:
But he insisted, no, he was going to use one single summary piece of paper.

[00:11:11] Speaker 00:
And from that, effectively deduce or speculate about what the rest of the program looked like.

[00:11:19] Speaker 00:
And so we raised issues to best evidence and just simply not looking at the correct information on that point.

[00:11:25] Speaker 00:
So that's the big picture that I want to talk about today in terms of those points.

[00:11:31] Speaker 00:
I did save some time for rebuttal, but I also want to talk about a little bit, I don't know

[00:11:36] Speaker 00:
Now about the Alice issue or rebuttal, I don't know what my position is because it was not a rejection made by the board and therefore I don't know if it's incumbent on me to raise it now or discuss it now as opposed to waiting for the government to make their case first.

[00:11:50] Speaker 00:
But I'm happy to talk about now for a little bit anyway.

[00:11:59] Speaker 00:
The Alice issue was raised for the first time.

[00:12:02] Speaker 00:
We mentioned it in the reply brief that

[00:12:06] Speaker 00:
We don't think that's an applicable case here because this is not organized human activity of any kind whatsoever.

[00:12:11] Speaker 00:
This is basic computing structures, basic computing logic.

[00:12:15] Speaker 00:
And while it's maintaining or controlling human accounts, this really has nothing to do with organizing human activity.

[00:12:21] Speaker 00:
So therefore, we believe that it didn't fall within the realm of the class of the things which are now being called exceptions.

[00:12:28] Speaker 00:
I know this is a very difficult and hot issue now with this court.

[00:12:32] Speaker 00:
And I think that there's some guidance being given by some of the lower courts in this

[00:12:36] Speaker 00:
that's a little bit helpful.

[00:12:38] Speaker 00:
To that end, I would point out that I'm going to borrow the wooden rebuttal time.

[00:12:42] Speaker 00:
Towards that end, there was a case a couple of days ago by Judge Andrews of Delaware, which I think is directly on point here.

[00:12:48] Speaker 00:
And what he mentioned was, this is a problem.

[00:12:50] Speaker 00:
Name of case, please.

[00:12:52] Speaker 00:
I can give you the citation right up here.

[00:12:54] Speaker 00:
But the point he made was that this is a claim which lives in the computer domain.

[00:12:59] Speaker 00:
It solves a problem which lives in computers.

[00:13:01] Speaker 00:
It's tethered to that domain.

[00:13:02] Speaker 00:
And therefore, this is not an analyst issue.

[00:13:05] Speaker 01:
OK.

[00:13:05] Speaker 01:
Why don't you say your rebuttal and we'll hear from the governor.

[00:13:08] Speaker 01:
Yes.

[00:13:11] Speaker 01:
Good morning.

[00:13:16] Speaker 02:
Good morning.

[00:13:17] Speaker 02:
Thank you, Your Honor.

[00:13:17] Speaker 02:
May it please the court?

[00:13:20] Speaker 02:
I believe the court is aware of the issues in this appeal.

[00:13:25] Speaker 01:
I would be happy to answer questions.

[00:13:47] Speaker 02:
It was not a big departure from the examiner.

[00:13:50] Speaker 02:
When the board entered its new ground, the examiner said sharing based on cap and trade, an old known concept, and leave donation, a known old concept, to share.

[00:14:06] Speaker 02:
And sharing is the only difference from hasting.

[00:14:09] Speaker 02:
The board discussed

[00:14:12] Speaker 02:
sharing generally.

[00:14:14] Speaker 01:
Was the examiner saying that this is a really well-known concept in the field of acid rain and leave, or was the examiner saying that this is a well-known concept across the board in everything in here or two examples?

[00:14:28] Speaker 02:
Both, Your Honor.

[00:14:29] Speaker 02:
The examiner said that here's some evidence of allocation sharing, acid rain and leave donation, and the board clarified by saying allocation sharing generally

[00:14:41] Speaker 02:
and entering a new ground.

[00:14:43] Speaker 02:
So the board clearly was the main game at this point.

[00:14:47] Speaker 02:
Not what the examiner did before because the board gave all kinds of due process to Mr. Gross by saying you could request re-hearing for this non-final new ground or you can resume prosecution and maybe amend claim 11 and get around our

[00:15:04] Speaker 02:
indefiniteness, new rejection as well.

[00:15:06] Speaker 02:
And then in Mr. Gross's brief to the board, he emphasized just a couple of things.

[00:15:12] Speaker 02:
He said for, and I'm referring to page 332 of the record, Mr. Gross's arguments to the board were very precise at that point.

[00:15:25] Speaker 02:
He was saying that you've picked the wrong concept.

[00:15:29] Speaker 02:
This concept can't be combined with Hastings.

[00:15:33] Speaker 02:
And Hastings meets all of claim one, except for the sharing concept.

[00:15:40] Speaker 01:
And that's it.

[00:15:40] Speaker 01:
What are the constraints on the board with respect to reliance on official notice?

[00:15:44] Speaker 01:
I assume there's something in the MPEP?

[00:15:46] Speaker 01:
Well... There's some limits on use of official notice.

[00:15:51] Speaker 02:
Yes, Your Honor.

[00:15:52] Speaker 02:
In the MPEP, the board, in entering a new ground especially, they did not make it a final rejection.

[00:16:00] Speaker 02:
What the MPEP says is if you're taking official notice of a well-known fact, the sun comes up, sharing is an age-old principle, sharing DVDs in particular, then you don't make that rejection a final rejection.

[00:16:17] Speaker 02:
And that's precisely what the board did here.

[00:16:19] Speaker 02:
The board entered a new ground of rejection.

[00:16:23] Speaker 02:
almost based on exactly what the examiner did, Hastings plus sharing.

[00:16:28] Speaker 02:
Whereas the examiner said Hastings plus cap and trade, the acid rain literature.

[00:16:34] Speaker 02:
So the board was changing the rationale, which it expressly said.

[00:16:38] Speaker 01:
No, I'm just wondering in the MPP, what kind of specificity is required of the board?

[00:16:43] Speaker 01:
I mean, you know, official notice.

[00:16:44] Speaker 01:
We're taking official notice that this is a well-known fact.

[00:16:48] Speaker 01:
They need to provide some support for that, right?

[00:16:51] Speaker 02:
Yes, Your Honor, they can give evidence of the concept right there.

[00:16:56] Speaker 02:
And the board abided by the tenants of the Patent Office by saying allocation sharing is a well-known concept.

[00:17:07] Speaker 02:
So it was clear that they weren't just relying on acid rain, but something broader than acid rain and leave donation.

[00:17:14] Speaker 02:
And once they invoked this concept.

[00:17:17] Speaker 04:
I think the Chief Judge was asking what in the MPP, what guidance is provided for when official notice may be taken and when not.

[00:17:27] Speaker 02:
Yes, Your Honor.

[00:17:28] Speaker 02:
What's required is to make it clear

[00:17:31] Speaker 02:
and unmistakable that you're taking notice of a well-known fact.

[00:17:37] Speaker 01:
No, I'm not asking about the front end.

[00:17:40] Speaker 01:
I'm asking the back end.

[00:17:42] Speaker 01:
What support are they compelled to provide to establish that something is a well-known fact?

[00:17:49] Speaker 02:
Thank you, Your Honor.

[00:17:51] Speaker 02:
Evidence and site to evidence and what they did complied

[00:17:59] Speaker 02:
With patent office procedure, they cited to acid rain, leave donation in its second decision, which is all Mr. Gross was arguing about in his request for rehearing about allocation sharing on page three of his brief.

[00:18:17] Speaker 02:
After the new ground of rejection, he said, give me more examples.

[00:18:21] Speaker 02:
And the board then gave him more examples.

[00:18:24] Speaker 02:
They cited bandwidth allocation and sharing money.

[00:18:28] Speaker 02:
Again, age-old concepts for sharing.

[00:18:30] Speaker 02:
And here, we have sharing very close to Hastings to meet claim one.

[00:18:37] Speaker 02:
Hastings.

[00:18:38] Speaker 04:
Mr. Pickle, I'd like to ask you about the indifference of this question regarding claim one.

[00:18:44] Speaker 04:
I understand the problem where a process and an apparatus are implicated is that a potential infringer doesn't know whether he's infringing or not.

[00:18:58] Speaker 04:
How does that problem arise here?

[00:19:00] Speaker 04:
You have a system, and then you have the routine embodied.

[00:19:06] Speaker 04:
Now, isn't it clear if the routine is embodied, it infringes the system claim?

[00:19:12] Speaker 04:
And if it's not embodied, then it doesn't infringe the system claim.

[00:19:18] Speaker 04:
So what's the indefiniteness there?

[00:19:21] Speaker 02:
Well, here, Your Honor, we have three words in the claim, system, routine,

[00:19:28] Speaker 02:
and medium and that mixes the software and the hardware and calls the whole thing a system and that's what the board said that it was this arrangement of things and they went to a dictionary and said system could either be a method or a set of things so when you have the claim referencing system that's what bothered the board the most is that

[00:19:57] Speaker 02:
the claim was broad enough.

[00:20:00] Speaker 04:
What's the process aspect?

[00:20:02] Speaker 04:
What's the method aspect?

[00:20:05] Speaker 02:
The executing on a computing system, and then the routine embodied and executing, executing, and then you have replenishing the queue.

[00:20:16] Speaker 04:
If it's there, the system claim is infringed.

[00:20:20] Speaker 04:
If it's not there, it's not infringed.

[00:20:24] Speaker 04:
So what's the indefiniteness?

[00:20:27] Speaker 02:
that it could be the process or the computer.

[00:20:32] Speaker 02:
And for example, in his specification, I don't think it has how to make that process with those steps.

[00:20:43] Speaker 02:
Well, the board, in entering its new ground, said, we can't tell if this is a process or an apparatus.

[00:20:53] Speaker 02:
And interestingly, in responding to the board's rationale,

[00:20:57] Speaker 02:
Mr. Gross said, the third category, it's now an article of manufacture.

[00:21:03] Speaker 02:
And the board said, now I have a third statutory invention category to choose from.

[00:21:09] Speaker 02:
Why don't you clean up this claim now instead of it appearing across and spanning across three statutory categories?

[00:21:19] Speaker 02:
So the board's rationale was that it spans within 101 three different rationales

[00:21:26] Speaker 02:
And that's what was causing the confusion as the board articulated.

[00:21:31] Speaker 02:
He can clean this up now during prosecution.

[00:21:34] Speaker 02:
He has allowed claims in this application and other applications pending.

[00:21:39] Speaker 02:
But the word system was what struck a chord with the board.

[00:21:43] Speaker 02:
And they went to a dictionary to support their rationale.

[00:21:46] Speaker 04:
He's doing a discord.

[00:21:49] Speaker 02:
Yes, Your Honor.

[00:21:52] Speaker 02:
Again, I believe the court is aware of the issues in this appeal.

[00:21:57] Speaker 02:
If the court has no further questions, I'd be happy to take my seat.

[00:22:01] Speaker 02:
Thank you, Your Honors.

[00:22:10] Speaker 00:
Thank you, Your Honor.

[00:22:12] Speaker 00:
Just a couple of points.

[00:22:14] Speaker 00:
Again, to return to the main theme here, what we don't have from the board now is a resolution of a very key piece of information we need to have, which is, is this reference analogous art?

[00:22:26] Speaker 00:
That was something that was briefed.

[00:22:27] Speaker 00:
We needed to know the answer to that question.

[00:22:29] Speaker 00:
We did not get it.

[00:22:31] Speaker 00:
We got a rewrite of the rejection and the rule on that.

[00:22:34] Speaker 00:
That is critical to us because a reference is being applied in other cases.

[00:22:38] Speaker 00:
And without this resolution, we basically were left hanging.

[00:22:43] Speaker 00:
The examples they gave of being allocation sharing.

[00:22:47] Speaker 00:
Again, we pointed out in the briefs, I won't repeat them, but they're not really quite the same.

[00:22:51] Speaker 00:
We pointed out the difference between donating a quantity

[00:22:55] Speaker 00:
and donating capacity.

[00:22:57] Speaker 00:
If two people have, for example, leave, and one person donates leave to the other person, that person's capacity for leave hasn't changed any.

[00:23:05] Speaker 00:
All that's happened is I've given you one of my days.

[00:23:08] Speaker 00:
I still have my 10 days or 14 days, wherever it happens to be, year over year.

[00:23:13] Speaker 00:
I've simply given you a day.

[00:23:15] Speaker 00:
For every example they pointed out as being an example of something that was capacity sharing, we pointed out it was really just quantity sharing.

[00:23:23] Speaker 00:
I'm giving you something, but it hasn't changed my capacity.

[00:23:28] Speaker 00:
The question about official notice is important because the board is required to use documentary evidence of some kind.

[00:23:36] Speaker 00:
And here again, what I'm suggesting is they didn't like the acid rain reference.

[00:23:41] Speaker 00:
It could not qualify as being analogous art.

[00:23:43] Speaker 00:
And therefore they simply said, well, let's just use it then for this backdrop purposes and invent a new rejection.

[00:23:50] Speaker 00:
I don't think that that is proper.

[00:23:52] Speaker 00:
The last point I wanted to mention about Judge Lurie's question is that the cases we cite in the reply brief, including the microprocessor enhancement case, if you read the execution logic, et cetera, which is recited in that claim on page six of the reply, it specifically says, for example, a logic pipeline stage performing a Boolean algebraic evaluation.

[00:24:15] Speaker 00:
This is a very common formulation in this field of art.

[00:24:22] Speaker 00:
the case that I was referring to is messaging gateway solutions versus Amdocs.

[00:24:28] Speaker 00:
And I believe it came down a couple of days ago in Delaware.

[00:24:30] Speaker 01:
Thank you.

[00:24:31] Speaker 01:
All right.

[00:24:33] Speaker 01:
Why don't we turn to the next appeal.

[00:24:36] Speaker 01:
It's 141474, in late growth also.