[00:00:00] Speaker 04:
Okay, well we thank you for your concern.

[00:00:05] Speaker 04:
Thank you very much.

[00:00:06] Speaker 04:
Our next case is in Ray Harp.

[00:01:04] Speaker 04:
Mr. Natalie, is that correct?

[00:01:07] Speaker 00:
Mr. Trask.

[00:01:08] Speaker 04:
Okay, I'm sorry.

[00:01:09] Speaker 04:
Yes, Mr. Trask.

[00:01:13] Speaker 00:
Thank you, Judge Raina.

[00:01:14] Speaker 00:
And good morning.

[00:01:15] Speaker 00:
May it please the Court.

[00:01:17] Speaker 00:
Andrew Trask on behalf of Appellant Ronald Carr.

[00:01:21] Speaker 00:
With respect to the Board's Section 102 anticipation rejection, I'd like to focus on two critical claim limitations that are missing from the sole prior art reference.

[00:01:31] Speaker 00:
The first of those is

[00:01:33] Speaker 00:
electronic output or access of the treatment information by the patient, and the second is monitoring compliance based upon access of the treatment information.

[00:01:43] Speaker 00:
Now, with respect to the first, that limitation of electronic output or access is present in all of the claims at issue, and it's not disclosed by the sole reference.

[00:01:51] Speaker 00:
The board focused on the home access passage of the sole reference, and that's at A558, the bottom of column 27.

[00:02:00] Speaker 00:
That passage does not disclose electronic access.

[00:02:04] Speaker 00:
It's focused on the initial assessment portion of the sole reference.

[00:02:07] Speaker 00:
And the initial assessment is what happens when the patient first approaches the sole system to report a complaint or some type of a medical problem.

[00:02:16] Speaker 00:
This happens before the patient is seen by the doctor and before treatment information is ever entered.

[00:02:23] Speaker 00:
So that limitation is not disclosed by the prior record.

[00:02:27] Speaker 05:
Let me join a housekeeping kind of question.

[00:02:30] Speaker 05:
Maybe we can clear up some of this.

[00:02:34] Speaker 05:
S2 claims 29 to 34.

[00:02:38] Speaker 05:
The board says you didn't separately contest the anticipation finding.

[00:02:45] Speaker 05:
And you provide a limited statement.

[00:02:50] Speaker 05:
You say for the same reasons as for claim 28.

[00:02:54] Speaker 05:
The board's anticipation rejections of those dependent claims lack substantial evidence and require a reversal.

[00:03:00] Speaker 05:
That's it.

[00:03:00] Speaker 05:
That's your entire argument.

[00:03:02] Speaker 05:
Is that enough to preserve those claims on appeal?

[00:03:05] Speaker 00:
So claims 29 through 34, Judge Wallach, depend from independent claim 28.

[00:03:10] Speaker 00:
So claim 28 requires both access of the treatment information by the patient and monitoring the compliance based upon the access.

[00:03:20] Speaker 00:
So for that reason, because both of those limitations are missing from claim 28,

[00:03:24] Speaker 00:
Claim 28 is not anticipated, and the claims that depend from Claim 28 are also not anticipated, because they include all of the limitations of independent Claim 28.

[00:03:36] Speaker 05:
That's your answer?

[00:03:38] Speaker 05:
Are you telling me you preserve those up for appeal?

[00:03:41] Speaker 00:
Those are preserved, Judge Wallach, absolutely.

[00:03:43] Speaker 00:
Those claims contain the same limitations as Claim 28, and it's clearly stated in Dr. Carff's brief that there's no substantial evidence for the board's anticipation decision

[00:03:54] Speaker 00:
for all of the claims that have been rejected under section one or two.

[00:03:58] Speaker 00:
So the claims that you pointed to are not argued separately, but they all contain the limitations in an independent claim 28, and therefore the board's decision lacked substantial evidence for the same reasons as claim 28.

[00:04:12] Speaker 00:
So those claims were preserved, your honor.

[00:04:15] Speaker 00:
The second issue for anticipation is, as I mentioned earlier,

[00:04:20] Speaker 00:
monitoring compliance based upon access of the treatment information.

[00:04:24] Speaker 00:
And this limitation is also missing from the sole reference.

[00:04:28] Speaker 00:
The Patent Office only points to a couple of isolated references to compliance, but those are not compliance based upon access of the treatment information.

[00:04:37] Speaker 00:
Those are asking the patient whether she intends to comply before she even leaves the doctor's office, or upon some time in the future when the patient returns to the doctor's office

[00:04:48] Speaker 00:
asking whether she did comply.

[00:04:50] Speaker 00:
But neither of those is monitoring compliance based upon the access of the treatment information.

[00:04:55] Speaker 00:
And I'll point as well, Your Honor, to the fact that the patent office appears to recognize the problems in the board's reliance on the home access portion of SOL.

[00:05:04] Speaker 00:
Because in its field brief here, it shifts the focus.

[00:05:09] Speaker 00:
It moves away from the home access portion, and it moves towards the exit interview portion.

[00:05:13] Speaker 00:
Now, that's problematic for several reasons.

[00:05:15] Speaker 00:
One of which is that the board expressly declined to rely on the exit interview portion, including figures three and 12.

[00:05:22] Speaker 00:
On the what?

[00:05:23] Speaker 00:
So the board, in its rehearing decision, said it declined to rely on the exit interview portion of Sol in affirming the examiner's rejection under section 102, the anticipation rejection.

[00:05:36] Speaker 00:
And the reason that's important, Your Honor, is that had the board recognized and declining to rely on that passage of the prior art reference,

[00:05:45] Speaker 00:
that that passage was not relied upon by the examiner.

[00:05:49] Speaker 00:
So if the board had relied on that passage, it would have had to designate that decision a new ground of rejection.

[00:05:55] Speaker 00:
And under the Patent Office's own regulations, when the board designates a new ground of rejection, it affords the applicant procedural safeguards, namely the applicant can reopen prosecution or the applicant can request rehearing.

[00:06:09] Speaker 00:
Now, the board made the conscious decision not to rely on that passage and did not afford Dr. Carpenter's procedural safeguards.

[00:06:15] Speaker 00:
And in and of itself, there's no problem with that.

[00:06:17] Speaker 00:
The board does not have to designate new grounds of rejection.

[00:06:20] Speaker 05:
Does the board make a conscious decision not to rely on Alice?

[00:06:25] Speaker 00:
The government says you have a 101 problem.

[00:06:28] Speaker 00:
Right, the government raises the Alice issue in the final paragraph of its brief.

[00:06:33] Speaker 00:
That's correct.

[00:06:34] Speaker 00:
And the board didn't pass upon that below.

[00:06:37] Speaker 00:
I think it's fair to say that the board concluded that these claims are not abstract, because the board was focused on Section 101, and there is a 101 issue in this case, but it's not an Alice abstract issue.

[00:06:48] Speaker 00:
It's a different 101 issue.

[00:06:49] Speaker 02:
But the board did find Claim 28 ineligible under 101.

[00:06:53] Speaker 00:
That's right, Judge Hughes.

[00:06:54] Speaker 02:
So we can review that inelitability determination and apply the law of Alice if we want.

[00:07:00] Speaker 00:
The court could do that if it wanted to, but there are several reasons that the court should not.

[00:07:05] Speaker 02:
Let me ask you this, because I think 28 is clearly ineligible under ALIS.

[00:07:10] Speaker 02:
If that's the case, aren't all the dependent claims you're talking about also ineligible under ALIS?

[00:07:16] Speaker 02:
I don't see anything in 29 through 34, 36, or 37 that adds anything beyond just more steps to be done on a computer.

[00:07:28] Speaker 00:
So the board rejected claim 28 under one of them.

[00:07:31] Speaker 02:
Look, I understand.

[00:07:33] Speaker 02:
didn't make a proper 101 rejection on 29 to 34, 36, and 37.

[00:07:39] Speaker 02:
So that's probably not before us, although it seems to me that if we send this back, that's exactly what we're going to do.

[00:07:46] Speaker 00:
I disagree on that point, Your Honor.

[00:07:47] Speaker 00:
There are actually, there's another pending application before the board involving the same specification.

[00:07:53] Speaker 00:
Those pending claims, although they've been rejected on other bases, they've never been rejected under

[00:07:57] Speaker 00:
By the examiner.

[00:07:58] Speaker 00:
By the examiner, correct.

[00:07:59] Speaker 02:
And if that issue... It hasn't gotten to the board yet.

[00:08:01] Speaker 00:
Well, that case was in fact, it was for the board.

[00:08:04] Speaker 00:
This was the appeal that was decided by this court last year.

[00:08:07] Speaker 00:
The board never rejected those claims as abstract either.

[00:08:10] Speaker 00:
So the examiner and the board has had opportunities, including the very claims at issue here, to raise the issue of abstractness and it's never done that.

[00:08:19] Speaker 00:
Now, the reason that this court should not reach out to the Alice issue for the first time here on appeal is that

[00:08:25] Speaker 00:
Number one, there's been no analysis of the issue below.

[00:08:28] Speaker 02:
I'm not suggesting we should.

[00:08:29] Speaker 02:
I mean, I'm not going to do that, but it seems to me that if it goes back that the Board is going to take a very clear look at this and it's very likely to reject all of these as ineligible based on Alice.

[00:08:41] Speaker 00:
Whether that's true or not, I can't be sure.

[00:08:42] Speaker 00:
The Board, in fact, the Patent Office just last week issued new guidelines under 101.

[00:08:47] Speaker 00:
I think it's fair to let the Patent Office look at this in the first instance.

[00:08:50] Speaker 00:
The claims are not abstract under Alice and I can get into those issues.

[00:08:53] Speaker 00:
Let me start first with the 101 issue that was in fact raised by the board.

[00:08:57] Speaker 00:
Now, the very section of the MPEP that's cited by the Patent Office says that the 101 analysis is a two-step process.

[00:09:05] Speaker 00:
First, you need to consider whether Claim 28 is directed to one of the four categories under Section 101, that is process, machine, manufacturer, composition of matter.

[00:09:14] Speaker 00:
And then you turn to the second step and you determine whether any of the judicial exceptions apply.

[00:09:19] Speaker 00:
Here, all of the analysis was focused on that first step.

[00:09:22] Speaker 00:
Is Claim 28 directed to one of those four categories?

[00:09:26] Speaker 02:
But you're talking about Claim 28 now.

[00:09:28] Speaker 02:
We certainly can look at whether the law has changed on how we approach abstract ideas, can't we?

[00:09:33] Speaker 02:
We're not bound by the MPEP or whatever it is on how we look at the 101 determination here.

[00:09:40] Speaker 02:
We can apply Alice to Claim 21 ourselves and say, is it an abstract idea?

[00:09:45] Speaker 02:
which is the first step.

[00:09:46] Speaker 02:
And does it add anything more to essentially take it out of that realm?

[00:09:50] Speaker 00:
So the court can certainly apply Alice.

[00:09:52] Speaker 00:
One-on-one is an issue of law.

[00:09:53] Speaker 00:
The court could do that if it chose to.

[00:09:55] Speaker 00:
I think it makes sense for the court to lift the patent off.

[00:09:57] Speaker 02:
Where in Claim 28 does it recite anything that's not abstract steps of treating?

[00:10:05] Speaker 02:
I mean, the word abstract doesn't fit very well, but this is the way the Supreme Court, and we have looked at it, taking conventional steps and saying, do it on a computer,

[00:10:15] Speaker 02:
is generally not good at.

[00:10:16] Speaker 02:
I mean, 28 says entering treatment information, determining access information by patient, monitoring compliance.

[00:10:23] Speaker 02:
Those are all things that could be done by pencil and paper.

[00:10:26] Speaker 00:
So let me be clear about this.

[00:10:28] Speaker 00:
I disagree that these are things that can be done on a pencil and paper.

[00:10:31] Speaker 00:
The invention here is different from some of these other Alice cases, like the Banker case, that we're simply taking what could have been done in the past on a printed piece of paper and doing it faster or more efficiently.

[00:10:41] Speaker 00:
This is a novel approach and is an inventive

[00:10:43] Speaker 00:
Did you waive these arguments for Claim 28?

[00:10:48] Speaker 00:
No, Your Honor.

[00:10:50] Speaker 00:
The issue of 101 was raised by Dr. Karf.

[00:10:53] Speaker 00:
It was a new ground of rejection instituted by the Board, and it was raised by Dr. Karf in his rehearing brief.

[00:10:58] Speaker 00:
He pointed out on A482

[00:11:02] Speaker 00:
that the board overlooked the Article of Manufacture limitation in Claim 28.

[00:11:07] Speaker 00:
And then on A483, he asked the court to reconsider the new ground of rejection.

[00:11:11] Speaker 00:
So that's absolutely preserved.

[00:11:12] Speaker 00:
Of course, he's also proceeding pro se.

[00:11:14] Speaker 00:
This is a straightforward legal issue.

[00:11:16] Speaker 00:
There's no reason this court shouldn't address the 101 issue here.

[00:11:19] Speaker 00:
If I can, I'm into my rebuttal time here, but I just wanted to address one further point, which is that on the anticipation issue, this court should not pass upon the exit interview portion because

[00:11:31] Speaker 00:
To do so would effectively be an end run around the procedural safeguards afforded to Dr. Karf here.

[00:11:38] Speaker 00:
For this court to affirm on a basis that would have been a new ground of rejection, had the board relied on it, would essentially thwart the rights that Dr. Karf and other patent applicants would have at the board.

[00:11:49] Speaker 00:
So the court should not consider that, and I'll reserve the rest of my time.

[00:11:53] Speaker 00:
Can you say what's per se?

[00:11:55] Speaker 00:
He had counsel most of the time.

[00:11:58] Speaker 00:
He had counseled during part of the prosecution.

[00:12:00] Speaker 00:
That's right.

[00:12:00] Speaker 00:
At the time, it's undisputed here that at the time of the alleged waiver, he was pro se and he notified the board of that fact.

[00:12:10] Speaker 04:
Thank you, Mr. Krabb.

[00:12:12] Speaker 04:
Mr. Helm.

[00:12:13] Speaker 03:
May it please the court?

[00:12:14] Speaker 03:
I guess I'd like to start with what the parties agree on with this, that Sol discloses.

[00:12:19] Speaker 03:
Sol discloses a physician entering inpatient treatment and diagnosis information into a database.

[00:12:26] Speaker 03:
It's stored in a server.

[00:12:27] Speaker 03:
Does it disclose accessing the data at home?

[00:12:31] Speaker 03:
I think that the board certainly found that it did.

[00:12:34] Speaker 03:
And I want to address the substance of that question, but I just want to make a distinction between the claims 26 and 27.

[00:12:40] Speaker 03:
Does it monitor, still monitor the access of the data?

[00:12:46] Speaker 03:
Yes, I believe it does.

[00:12:47] Speaker 03:
And so what the board found was that at the bottom of column 27, let me just open up to make sure that I have the right citation here, J558.

[00:12:57] Speaker 03:
At the bottom of column 27, it describes that the patient can access from home using the CPM system, using the internet, the system for triage, screening, or health education sessions.

[00:13:09] Speaker 03:
And the board looked at that disclosure, and they concluded that that meant that, and then goes on to say that if a patient has a problem that's identified, it sends a notification to the doctor, and it sends a notification to the patient.

[00:13:25] Speaker 04:
But if it doesn't send a notification, then is there any way of knowing or monitoring that particular access?

[00:13:32] Speaker 03:
Well, what the board found was that the access, it's not the, let me just get the claim language out, because I want to be clear on what claim 28 says.

[00:13:42] Speaker 03:
Entering treatment information, determining access to treatment information, so that's the patient logging on to the system, and then monitoring compliance with the patient based on access to the treatment information made by the patient.

[00:13:54] Speaker 01:
One aspect of the decision was that... If the patient never logs on from home under sole, how does it monitor compliance?

[00:14:02] Speaker 03:
There's two other ways that it monitors compliance.

[00:14:04] Speaker 03:
One way is immediately after the interaction with the doctor, the patient goes to a carol at the doctor's office, uses the patient computer system, and is asked a series of questions about compliance.

[00:14:19] Speaker 03:
Those questions include things like,

[00:14:22] Speaker 03:
whether the patient understands the treatment prescribed, does the patient think the treatment's important, does the patient think the treatment's useful?

[00:14:28] Speaker 03:
And what's the second point?

[00:14:29] Speaker 03:
The second point is that the revisit.

[00:14:31] Speaker 03:
And so when the patient comes back to the doctor's office, they... But what about in between those two?

[00:14:37] Speaker 03:
Well, in between the two, what Sol discloses is that the patient can access the system from home as well.

[00:14:41] Speaker 04:
The patient can also come back to the... Is that access monitored?

[00:14:44] Speaker 03:
It has to be monitored because the patient has to log into the system.

[00:14:48] Speaker 03:
It's monitored in the sense that the patient has to log into the system.

[00:14:53] Speaker 03:
And the monitoring here is, just to be clear, the monitoring is actually reading claim 28.

[00:14:58] Speaker 03:
It seems to be directed towards the doctor because it's monitoring compliance of the patient.

[00:15:05] Speaker 03:
soul discloses at the bottom here where it sends a message to the doctor.

[00:15:09] Speaker 03:
So if the assistant identifies a problem with a patient, it notifies the doctor.

[00:15:14] Speaker 03:
So that could be a problem with compliance.

[00:15:16] Speaker 03:
Is that with the new ailment?

[00:15:18] Speaker 03:
Excuse me.

[00:15:19] Speaker 03:
It could be a new ailment, and that new ailment could be related to the fact that there's not compliance.

[00:15:24] Speaker 03:
And that's what the board said in their opinion.

[00:15:27] Speaker 03:
And I think that's entirely reasonable.

[00:15:29] Speaker 03:
The other thing I'd like to point out is that when the...

[00:15:35] Speaker 03:
One of the arguments that Mr. Clark makes is that this triage screening or health education sessions, that only applies to an initial screening.

[00:15:45] Speaker 03:
But sole is clear, if you look at the triage module, which is figure five, figure five A, I'm gonna give you the JA site, 523,

[00:16:01] Speaker 03:
If you go down, it loads the triage module, loads the patient data, so this is the patient's access to the system.

[00:16:07] Speaker 03:
And if they're not a new patient, it goes immediately to the revisit strategy.

[00:16:11] Speaker 03:
And the revisit strategy, there's a whole, that's figure 13, there's a whole list of... So what does SOAS say that the patient logs in from home?

[00:16:21] Speaker 03:
So that's at the bottom of column 27.

[00:16:25] Speaker 03:
They say patients may access CPM.

[00:16:28] Speaker 03:
CPM is what the court calls its Comprehensive Patient Management System in the interim from home via the internet.

[00:16:35] Speaker 03:
They also say they could use a CPM CD-ROM or DVD.

[00:16:38] Speaker 03:
It goes on to say they can come back to the provider organization, for example, if they don't have internet access.

[00:16:46] Speaker 03:
And then it says symptom updates are stored in the database.

[00:16:48] Speaker 03:
And so there's, again, the constant flow of information between the patient, the patient and the patient's interaction with the system and the server database.

[00:16:57] Speaker 03:
And then if it reveals a condition and needs to prompt attention, that's the monitoring part.

[00:17:03] Speaker 03:
The patient is instructed to seek care at the end of the CPM session.

[00:17:07] Speaker 03:
And then in addition, the physician is notified.

[00:17:09] Speaker 03:
And so that's the monitoring portion.

[00:17:12] Speaker 03:
But just to be clear, that monitoring portion is not, monitoring is not part of claim 26.

[00:17:17] Speaker 03:
And I believe I heard Mr. Trask argue that one of the limitations was electronic access.

[00:17:24] Speaker 03:
And I don't actually see electronic access as a limitation in these claims.

[00:17:30] Speaker 03:
Claim 26 simply requires the server computer responsive, so it's a little bit... The monitoring is relevant to 28, 29, to 30... 28 and depending claims, that's correct.

[00:17:41] Speaker 02:
Monitoring is only in those claims.

[00:17:43] Speaker 02:
And then giving- 28 was rejected on a new ground, which they didn't challenge, so they're out on 28.

[00:17:49] Speaker 02:
So we're really talking about 29 through 34, 36 through 37.

[00:17:53] Speaker 03:
That is correct with respect to those things.

[00:17:55] Speaker 03:
Our position is that the 28 was not properly raised.

[00:18:00] Speaker 03:
There was no proper, and the board found, there was no substantive argument raised for claim 28 on the rehearing request.

[00:18:07] Speaker 03:
And then there's also claim 35 was not even mentioned in the rehearing request.

[00:18:11] Speaker 03:
And so that actually raises a number of different issues.

[00:18:13] Speaker 03:
We argue as a waiver issue, but the board rule requires you to do one of two things, which is either reopen prosecution or argue the claim on rehearing.

[00:18:21] Speaker 03:
And so it may actually be that that claim is abandoned.

[00:18:25] Speaker 03:
I'm not actually positive on this, but it may be that that claim is just abandoned because they didn't choose either of the two options.

[00:18:32] Speaker 03:
But we will argue as a waiver issue here.

[00:18:36] Speaker 03:
Just to emphasize, just one more time, the claim 26.

[00:18:39] Speaker 03:
Claim 26 is the one that requires outputting the information.

[00:18:42] Speaker 03:
Claim 28 is the one that requires monitoring.

[00:18:44] Speaker 03:
So that's the difference between the two.

[00:18:47] Speaker 03:
If there's no further questions, I'm happy to yield back the rest of my time.

[00:18:53] Speaker 03:
No further questions.

[00:18:53] Speaker 03:
Thank you very much, Council.

[00:19:06] Speaker 00:
This court's case law is clear that the court on factual matters is to review the agency decision on the grounds relied on by the agency.

[00:19:14] Speaker 00:
We just heard the patent office cite figure five, figure 13.

[00:19:17] Speaker 00:
These were never relied upon by the board.

[00:19:19] Speaker 00:
The lawyers here are not the fact finders and this court here is not the fact finder.

[00:19:23] Speaker 00:
The fact finders is the agency and these are grounds that were not relied upon in affirming the agency's rejection.

[00:19:31] Speaker 00:
Now, with respect to the home access portion, which the board did rely on, that portion is

[00:19:36] Speaker 00:
focused on the initial assessment.

[00:19:37] Speaker 00:
The triage, screening, and health education components that are referenced in column 27 are the initial assessment of a patient's condition before she sees the doctor and before the doctor ever enters any treatment information.

[00:19:52] Speaker 00:
Well, there's an exit interview mentioned.

[00:19:55] Speaker 00:
There's an exit interview that happens at the patient carrel.

[00:19:57] Speaker 00:
That's right.

[00:19:58] Speaker 00:
That does not happen from home.

[00:19:59] Speaker 00:
There's no connection between the two.

[00:20:00] Speaker 00:
And the board expressly found that there's a reference to

[00:20:05] Speaker 00:
coming online through the internet at home.

[00:20:08] Speaker 05:
Is he there following that?

[00:20:09] Speaker 00:
To do a, that's right, to do triage screening and health education, which is the initial assessment.

[00:20:13] Speaker 00:
The only thing that happens from home, from the sole reference, is an initial assessment of conditions prior to the doctor, prior to the patient being evaluated by the doctor.

[00:20:21] Speaker 00:
It's simply impossible that treatment information.

[00:20:23] Speaker 00:
Wait, wait, wait, wait, wait.

[00:20:24] Speaker 05:
It says completion of the exit interview concludes patient interaction with the system until the next visit.

[00:20:33] Speaker 05:
And then it's followed by however

[00:20:36] Speaker 05:
patients may access.

[00:20:38] Speaker 05:
So that's following the conclusion, isn't it?

[00:20:43] Speaker 00:
So that's what the reference discloses.

[00:20:46] Speaker 00:
And what it's saying is, however, the patient may log on from home to provide symptom updates based on new patient information.

[00:20:55] Speaker 00:
This is if the patient has at some point in the past undergone a doctor's visit for one condition, and then from home experiences some new condition, let's say a headache.

[00:21:06] Speaker 00:
she can log on to the system, report the fact that she has a headache, and then the system will tell her if she needs to go see the doctor.

[00:21:12] Speaker 00:
That is what the home access portion is, and it's nothing more than that.

[00:21:15] Speaker 00:
So the Patent Office's attempt to graft onto this limited home access portion, the notion that you can do an exit interview, the notion that you can do a revisit interview from home is not supported by substantial evidence in the record, and it is a new factual basis that should not be relied upon by the court.

[00:21:35] Speaker 00:
The fact that the claims do not require electronic access is incorrect.

[00:21:40] Speaker 00:
Claim 26 requires a computer that outputs to a patient over a network the treatment information.

[00:21:47] Speaker 00:
The notion that over a network can read on a printed piece of paper makes no sense.

[00:21:52] Speaker 00:
The board didn't find that and it's an unsubstantiated argument here at the Appeals Court.

[00:21:57] Speaker 00:
Claim 28, in addition to requiring monitoring compliance, also requires determining the access of the treatment information by the patient.

[00:22:05] Speaker 00:
That's not possible with a printed piece of paper.

[00:22:07] Speaker 00:
That requires electronic access so that the computer system can determine when the patient logged on and access their treatment information, and the system can then determine whether the patient is complying with the treatment or not.

[00:22:23] Speaker 00:
Finally, Your Honor, I'd just like to get back to the Section 101 issue.

[00:22:29] Speaker 00:
is directed to an article of manufacture.

[00:22:31] Speaker 00:
There can be no question here that it falls within one of the four categories under section 101.

[00:22:36] Speaker 00:
That issue was preserved by Dr. Martin.

[00:22:37] Speaker 01:
What's the article of manufacture?

[00:22:39] Speaker 00:
The article of manufacture is the computer device.

[00:22:43] Speaker 02:
So you think all these claims that the Supreme Court has rejected and that we've rejected based upon doing routine things on computers could be saved if you had said we're claiming the computer?

[00:22:55] Speaker 00:
Absolutely not.

[00:22:56] Speaker 02:
This is not a special purpose computer, right?

[00:22:59] Speaker 02:
This is just any random computer that's programmed to do these steps.

[00:23:04] Speaker 00:
The 101 issue is a two-part process.

[00:23:07] Speaker 00:
I'm not talking about the ALICE two-step test.

[00:23:09] Speaker 00:
I'm talking about a two-part process, which is number one, is the claim directed to one of the four categories?

[00:23:15] Speaker 00:
Here, it's directed to a manufacturer.

[00:23:17] Speaker 00:
This court's case law specifically says

[00:23:19] Speaker 00:
that an article of manufacture is a tangible article of commodity.

[00:23:22] Speaker 00:
That's the in-rate annoyance.

[00:23:23] Speaker 02:
I don't see how that case law is any good anymore after ALICE when we're talking about computers.

[00:23:28] Speaker 00:
The ALICE question comes next.

[00:23:30] Speaker 02:
You didn't invent the computer here.

[00:23:33] Speaker 02:
The computer is not what makes this patent eligible.

[00:23:36] Speaker 00:
What makes this patent eligible under the ALICE test is the fact that never before, prior to Dr. Karf's invention in 1999, was it possible to monitor patient access in real time based upon

[00:23:49] Speaker 00:
improve compliance based upon access of the treatment information.

[00:23:53] Speaker 00:
What had been done before is the patient was given a printed piece of paper and sent home to comply.

[00:23:57] Speaker 00:
What happened after that, the doctor was completely in the dark as to whether the patient complied or not.

[00:24:02] Speaker 00:
This is not a fundamental or long-standing abstract idea.

[00:24:06] Speaker 00:
This is a new concept.

[00:24:07] Speaker 00:
The fact that you can monitor in real time the patient's compliance based upon access to the treatment information.

[00:24:12] Speaker 00:
So I disagree that these claims are abstract under ALIS.

[00:24:16] Speaker 00:
I also argue that Alice is not an issue in this case.

[00:24:19] Speaker 00:
What's at issue is whether the claims are directed to one of the four categories under 101, and there's no question that they are.

[00:24:27] Speaker 00:
Thank you very much.

[00:24:28] Speaker 00:
Thank you very much.