[00:00:23] Speaker 01:
Okay, our third case this morning is number 141506, Intellectual Ventures versus Capital One Financial.

[00:00:32] Speaker 01:
Mr. Boll.

[00:00:34] Speaker 01:
Good morning, Your Honors.

[00:00:35] Speaker 02:
May it please the Court, my name is Nicholas Boll on behalf of Appellant Intellectual Ventures.

[00:00:40] Speaker 02:
So there's several issues in this appeal, including two 101 issues, and the Court has before two very different Section 101 issues dealing with two different patents,

[00:00:54] Speaker 02:
On one hand, there's the 137 patent, which is concerned with narrow issues regarding managing financial accounts and doing so with a specific narrow technological solution.

[00:01:08] Speaker 02:
On the other hand is the 382 patent, which is directed specifically to an internet problem of providing a certain type of website.

[00:01:21] Speaker 02:
We submit that frankly the second issue is the easier issue considering this court's opinion in DDR holdings where it said that the patented issue there, the 399 patent, was patent eligible because it claimed a solution directed solely to the internet and computer networks and was rooted in specific technology.

[00:01:47] Speaker 02:
That's precisely what we have here.

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with the 382 patent.

[00:01:50] Speaker 00:
Are you conceding the 137 patent is not patent eligible?

[00:01:54] Speaker 02:
No, certainly not, your honor.

[00:01:56] Speaker 02:
Our view is that patent eligibility is certainly broader than the line set forth in DDR holdings.

[00:02:04] Speaker 02:
But concededly, the 137 patent does not fit squarely within that holding like the 382 patent does.

[00:02:13] Speaker 02:
Because the 382 patent is directed to only an internet

[00:02:18] Speaker 02:
It is a specific technological problem that is at issue in the 382.

[00:02:23] Speaker 04:
What is the specific technological problem?

[00:02:25] Speaker 04:
Well, maybe we should step back.

[00:02:28] Speaker 04:
How would you define the abstract idea?

[00:02:31] Speaker 02:
Well, I would say that there is no abstract idea in the 382.

[00:02:35] Speaker 04:
Okay, but what's your fallback position?

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What do you think is the abstract idea?

[00:02:41] Speaker 02:
I would say that if we were to accept what Capital One has argued that

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specifically tailoring content is an abstract idea, then if we look at the claim limitations themselves, this claim, this patent is not claiming all ways of tailoring content.

[00:03:02] Speaker 02:
It's not concerned with all ways of tailoring content.

[00:03:05] Speaker 04:
But it's tailoring content on the internet.

[00:03:08] Speaker 04:
So that's not good enough either, right?

[00:03:10] Speaker 02:
Well, you're right that that's not good enough.

[00:03:12] Speaker 02:
But what it is doing is saying there is a problem with web pages.

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There is a problem

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in the conventional sense of how a web page looks.

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And it's important to remember, too, that this patent, this application was filed in 1998.

[00:03:27] Speaker 02:
The patent specification talks about this as the infancy of the internet and talks about the technology of the internet not being fully utilized.

[00:03:37] Speaker 01:
How broad is the claim?

[00:03:40] Speaker 01:
As I read the specification, if the content were varied according to the time of day,

[00:03:48] Speaker 01:
And according to the address, geographic address of the user, it would be within the claim, right?

[00:03:55] Speaker 02:
It depends, Your Honor, because the claim is actually quite narrow.

[00:03:58] Speaker 02:
It requires the use of the interactive interface to facilitate the transfer of the specifically tailored content based both on the user profile data and the website navigation data.

[00:04:11] Speaker 01:
That would be a user profile data would be addressed, right?

[00:04:14] Speaker 01:
That would be one example.

[00:04:15] Speaker 01:
that could be one example.

[00:04:17] Speaker 01:
And navigation history would be time of day that you click on, right?

[00:04:24] Speaker 02:
I'm not sure if that would be correct.

[00:04:28] Speaker 02:
I believe the website navigation history would be more in the sense of where has the user been navigating?

[00:04:36] Speaker 01:
Where has the user been?

[00:04:38] Speaker 01:
I thought the specification was pretty clear that morning and evening was within the client.

[00:04:43] Speaker 02:
I think

[00:04:43] Speaker 02:
I think that the specification is clear, that that is an example of how you can tailor data, and that is an example of how you could do it based on the certain characteristics of when the user is looking at it.

[00:04:58] Speaker 02:
But to practice the claim, you still would have to have those elements, the interactive interface, the user profile, and the website navigation.

[00:05:08] Speaker 01:
But I mean, you would agree, would you not, that historically the tailoring content

[00:05:12] Speaker 01:
to time of day and address has been common in the past, right?

[00:05:20] Speaker 01:
I don't think that that's the issue, Your Honor.

[00:05:23] Speaker 01:
You may not think it's the issue, but is not my statement correct?

[00:05:27] Speaker 02:
There is certainly has been tailoring content based on different things with a difference though in the conventional commonplace sense of tailoring content and the unconventional

[00:05:40] Speaker 02:
innovative way that the 382 claims is that this idea is to tailor content after we know about the user, after we know about the user's data.

[00:05:52] Speaker 02:
The conventional sense, if you were to ever be able to tailor content, it would be certainly much broader.

[00:05:58] Speaker 02:
You wouldn't be able to narrow it down to provide this type of details here.

[00:06:05] Speaker 01:
For decades, hasn't it been true that publications that are

[00:06:10] Speaker 01:
delivered by mail or delivered to your door or the content is tailored according to your address now or the place where you live.

[00:06:19] Speaker 02:
The difference there, Your Honor, I would say is that... But is that true?

[00:06:24] Speaker 02:
Your Honor, that's correct.

[00:06:25] Speaker 02:
That content has been tailored.

[00:06:27] Speaker 02:
So that is not what this patent is about.

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This patent is about how to make a website

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After we have learned about the user's data, now we will construct the website based on that data.

[00:06:39] Speaker 00:
What does it mean dynamically, then?

[00:06:42] Speaker 02:
Dynamic means that the content can change as the user is viewing the data.

[00:06:48] Speaker 02:
And this is another difference between the conventional aspect.

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Because in the situation that you proposed, Judge Dyke, the publication is being sent to the user.

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It's been made.

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published, then they determine, okay, maybe we'll send it to this person instead.

[00:07:06] Speaker 02:
That content can't change, as opposed to the website, which... Did you argue this in your brief?

[00:07:14] Speaker 00:
I believe we did, Your Honor, when we discussed the why the invention is innovative in the... When I look at the claim, and I see the word dynamic, and when we're talking about dynamically changing or

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perhaps even a data stream that displays custom content.

[00:07:37] Speaker 00:
Then I began to maybe get the scent of something that's innovative.

[00:07:40] Speaker 00:
So help me with that, okay?

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What makes this different when I look at the word dynamic or?

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So what you can do with this pattern, with this invention, what you could do on the internet, which you could not do at all before, and why this is an internet-specific innovation is that

[00:08:02] Speaker 02:
When I'm looking at a website, that content, the patent claims sending content through data streams.

[00:08:09] Speaker 02:
So you have this concept of a stream of data, of a continually flowing pipe of data that's being delivered.

[00:08:17] Speaker 00:
And that would make a difference from a million, where you have a single piece that goes out.

[00:08:21] Speaker 00:
Here you have a continuous stream of data that's all clean and changing.

[00:08:25] Speaker 00:
Yes.

[00:08:26] Speaker 00:
Does that get that right?

[00:08:28] Speaker 02:
That is exactly right, Your Honor.

[00:08:30] Speaker 02:
And that's why this

[00:08:32] Speaker 01:
Why wouldn't it cover a situation where you had two streams of data, one depending on one address and one on another address?

[00:08:41] Speaker 01:
What's the difference between that and the previous approach the publications have had to this, varying content depending on address?

[00:08:51] Speaker 02:
Well, there are several differences.

[00:08:54] Speaker 02:
One is the content there is being put together, is being made.

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before you know about that individual person, and then it's being matched to one person.

[00:09:05] Speaker 01:
And this requires that the content be made spontaneously.

[00:09:09] Speaker 01:
I mean, there's nothing in the claim that said you can't have predetermined content according to different addresses and then supply it depending on where the person is who clicks on.

[00:09:23] Speaker 02:
If we look at how the court construed the last limitation of claim one, for example,

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It requires that there's a user preselected by a web page manager that automatically downloads a profile.

[00:09:40] Speaker 02:
And then based on the information identifiers in that profile, creates the content to send to the web page.

[00:09:48] Speaker 02:
So based on that construction, you have this idea of first we are going to learn about this user.

[00:09:54] Speaker 02:
Where does it say the content can't be pre-designed and pre-created?

[00:09:59] Speaker 02:
The content can certainly be pre-designed, but the idea is you have not actually made the website.

[00:10:07] Speaker 02:
The website is not made until it is delivered to the user's system and at the web browser.

[00:10:14] Speaker 01:
I'm having difficulty seeing what the difference is.

[00:10:16] Speaker 01:
The content can be pre-determined just as it used to be in the media examples, and it's delivered depending on where you are.

[00:10:25] Speaker 01:
Why isn't that

[00:10:27] Speaker 01:
right within the abstract idea of doing this, which has been well known for a long time.

[00:10:34] Speaker 02:
If your honor is saying that the idea of tailoring content is an abstract idea, then when we move to step two of the ALICE analysis, this particular claim is certainly adds significantly more to that idea than just tailoring.

[00:10:51] Speaker 00:
Before we go to step two, let's go back to step one.

[00:10:54] Speaker 00:
All right.

[00:10:56] Speaker 00:
When you're updating, is that in real time?

[00:11:00] Speaker 02:
Yes.

[00:11:02] Speaker 02:
Yes, in terms of when you mean with a dynamic sending of the data.

[00:11:08] Speaker 02:
That can be done in real time, yes.

[00:11:12] Speaker 02:
So how we decide to say what this pattern is directed to, whether it's just tailoring content or whether it is, in our view,

[00:11:25] Speaker 02:
specifically tailoring content on a website to create a new website, which we would argue is not abstract, when you go to... Are you agreeing that tailoring content itself is an abstract idea?

[00:11:37] Speaker 02:
I'm agreeing that it is an idea, for sure.

[00:11:40] Speaker 02:
I don't know if there are guideposts in either this court's precedents or the Supreme Court to say that tailoring content is an abstract idea.

[00:11:51] Speaker 02:
It's certainly not

[00:11:52] Speaker 02:
there's no evidence in the record to suggest it's a long-standing business practice or economic principle.

[00:11:59] Speaker 00:
What about tailoring content in real time?

[00:12:02] Speaker 02:
I would say that that is not an abstract idea.

[00:12:04] Speaker 02:
That is something fully new and a fundamental change from how content had been delivered before.

[00:12:12] Speaker 02:
That's what the patent talks about.

[00:12:13] Speaker 02:
That's what the background of this patent discusses.

[00:12:16] Speaker 01:
I thought you agreed that the claim would cover

[00:12:20] Speaker 01:
predetermined content.

[00:12:21] Speaker 01:
It doesn't have to be changed in real time.

[00:12:24] Speaker 01:
You can have predetermined content for people with different addresses and it would come within the claim as long as it related to a website, correct?

[00:12:32] Speaker 02:
If it was being, if it was selectively tailored content that was being sent with the interactive interface and based on the user profile data and the website navigation data, then such a website would fall within the claim because

[00:12:49] Speaker 01:
So it's covered even though the content is predetermined and isn't changed in real time.

[00:12:57] Speaker 02:
If I predetermined you mean that somebody has said we're going to have these 50 pictures and we'll save those somewhere and then once we learn about the user we will pick picture 13 and make the website with that.

[00:13:15] Speaker 02:
I'm saying that that could be within the

[00:13:18] Speaker 02:
the claim, but that's still a fundamentally different idea than the conventional way of sending media or advertising.

[00:13:28] Speaker 01:
It's different because it involves a website, but apart from that, how is it different?

[00:13:33] Speaker 02:
Well, this invention only works on a website.

[00:13:36] Speaker 02:
This idea only applies to a website because the purpose of it is to create, to use the technology of the internet to create

[00:13:47] Speaker 02:
better website.

[00:13:48] Speaker 02:
Just like in DDR holdings, the purpose there was to create a new website that has a look and feel of the host page and the third-party product on it.

[00:13:59] Speaker 02:
The idea here is to provide content that creates a web page specifically designed for that individual user.

[00:14:07] Speaker 02:
Is it patentable because it's a web page?

[00:14:10] Speaker 02:
It's patentable because it is a solution that is rooted in technology and

[00:14:15] Speaker 02:
of the internet and directed solely to the internet itself.

[00:14:20] Speaker 02:
And it is a fundamentally new idea.

[00:14:22] Speaker 04:
But what if the claim preempts all ways of presenting customized information to a web user?

[00:14:31] Speaker 02:
That's not the situation that would happen.

[00:14:34] Speaker 02:
But what if it did?

[00:14:36] Speaker 02:
If it did do that, then you have to go back to the first question.

[00:14:42] Speaker 02:
Is that actually an abstract idea of presenting all the content?

[00:14:44] Speaker 04:
What if the abstract idea is tailoring information to an individual based on the individual's characteristics, individual's own information?

[00:14:55] Speaker 04:
That's the abstract idea.

[00:14:58] Speaker 04:
Now there's a claim that says do that by presenting web pages on the internet.

[00:15:05] Speaker 04:
Okay.

[00:15:06] Speaker 04:
If now we have abstract idea on the internet, that's not good enough either.

[00:15:11] Speaker 04:
So there has to be something more, something above and beyond the impermissible patenting of an abstract idea on the computer.

[00:15:19] Speaker 04:
What's that in this claim?

[00:15:21] Speaker 02:
That in this claim is using the interactive interface.

[00:15:25] Speaker 04:
What is the interactive interface?

[00:15:26] Speaker 04:
The interactive interface is the... Is it like a graphical user interface, GUI?

[00:15:33] Speaker 02:
No, no, Your Honor.

[00:15:34] Speaker 02:
And the patent discusses this in some detail in columns five and six and gives the example of a web manager.

[00:15:40] Speaker 02:
the idea is that the web manager the web manager is the software that is going to That is going to orchestrate the the taking into the user profile Data and is going your experts didn't weren't unable to agree on what?

[00:15:56] Speaker 02:
Interactive interface means they came up with it could be a number of things well and I think capital one is mischaracterized what our experts said what our experts said is

[00:16:08] Speaker 02:
is essentially what I just said, but it will use a number of things, because of course the web manager, the interactive interface, is existing within a full computer system.

[00:16:20] Speaker 00:
So what's a web manager?

[00:16:21] Speaker 00:
Software?

[00:16:22] Speaker 00:
Hardware?

[00:16:23] Speaker 02:
Yes, it's software, your honor, that will run on hardware.

[00:16:29] Speaker 02:
Is it a module?

[00:16:30] Speaker 02:
It can be a module in terms of a program that is designed to do it.

[00:16:35] Speaker 04:
It's basically the brains of the

[00:16:36] Speaker 02:
That's correct, Your Honor.

[00:16:38] Speaker 04:
And wouldn't you need some kind of brain of the outfit any time you were going to, on the internet, tailor information for a user?

[00:16:47] Speaker 02:
Every single time.

[00:16:49] Speaker 02:
Well, this critical brains of the operation is specific.

[00:16:53] Speaker 02:
It's sitting, it's sort of a back end brain of the operation.

[00:16:57] Speaker 04:
Right, it's a program computer.

[00:17:00] Speaker 02:
You will need a way to tailor content

[00:17:06] Speaker 02:
for sure if you're going to do this, this is a specific way where you have this web manager that's sitting on the back end that is taking the information and delivering it.

[00:17:18] Speaker 04:
There are other ways that you could do it.

[00:17:19] Speaker 04:
I guess that's the concern I have with this claim is that the elements of the claim recite essentially the necessary elements you would need for anybody to tailor information to an individual

[00:17:36] Speaker 04:
through a web page.

[00:17:38] Speaker 02:
You need a brain.

[00:17:40] Speaker 04:
You need a program computer there.

[00:17:43] Speaker 04:
You need to have access to the individual's personal information, some kind of personal information.

[00:17:50] Speaker 04:
And then through that, through that broad-based input into the black box interactive interface, you get your output, some kind of content that would hopefully likely be appealing to the user.

[00:18:03] Speaker 04:
That's what the claim looks like to me.

[00:18:05] Speaker 02:
That's not quite the claim, Your Honor, because one thing that's different is it's not just saying we need some characteristics about the user.

[00:18:15] Speaker 02:
You need very specific, you have to have the user profile data and the website navigation.

[00:18:19] Speaker 01:
But the user profile could just be an address.

[00:18:22] Speaker 02:
It could be, Your Honor, but we need that in addition to the website navigation data.

[00:18:26] Speaker 04:
The browsing history?

[00:18:27] Speaker 04:
The browsing history?

[00:18:29] Speaker 02:
Yes.

[00:18:31] Speaker 02:
So this is different than just saying

[00:18:33] Speaker 02:
browsing history?

[00:18:34] Speaker 01:
Where does it say it has... The website navigation data is what I was... I thought you agreed that clicking on the website at a particular time of day would be within navigation history.

[00:18:50] Speaker 02:
I agree that that is a way of tailoring data.

[00:18:56] Speaker 02:
Not necessarily that's website navigation history or website navigation data.

[00:19:01] Speaker 02:
That could be instead

[00:19:03] Speaker 02:
part of the user profile of this user is signing on at a certain time.

[00:19:07] Speaker 00:
I'm surprised that you're focusing the innovative concept here on the interactive interface.

[00:19:15] Speaker 00:
And so my question to you is that if we find that the interactive interface is not enough to lift this out of an abstract idea arena, then do you lose?

[00:19:28] Speaker 02:
No, Your Honor, as you pointed out... What else is there then?

[00:19:31] Speaker 02:
What else is there is also the dynamic content of the claim and that's what makes this an internet specific invention is that you can provide the dynamic content over this data stream.

[00:19:44] Speaker 02:
You can provide it over the internet to a website.

[00:19:49] Speaker 01:
And that's exactly why this invention... Why isn't that just applying an abstract idea to this new technology?

[00:19:55] Speaker 01:
Because you couldn't do this idea

[00:19:57] Speaker 01:
in any other sense.

[00:19:58] Speaker 01:
Well that's been true of a lot of the other cases where you can't use prior technology to achieve it on the internet.

[00:20:10] Speaker 01:
You have to have the internet technology and adding the internet technology doesn't in and of itself make an abstract idea patentable.

[00:20:17] Speaker 02:
I would say that in other cases where this court has found abstract ideas and patents directed to abstract ideas and eligible, they were all directed towards

[00:20:28] Speaker 02:
commonplace things that could be done outside of the internet.

[00:20:32] Speaker 02:
In Ultramershal, for example, there was always the idea of being able to... But Ultramershal required the use of the internet.

[00:20:41] Speaker 02:
It did, but it was not directed to how to use the internet.

[00:20:46] Speaker 02:
This is directed to how to use the internet.

[00:20:48] Speaker 01:
It wasn't directed to how to use the internet.

[00:20:50] Speaker 01:
It said it's a way of using the internet to say that you get free content if you

[00:20:58] Speaker 01:
if you look at an ad.

[00:21:00] Speaker 02:
But that's what it was directed to, was looking at an ad and using, if you look at an ad, we'll give you content.

[00:21:10] Speaker 02:
That was the idea that it was directed to.

[00:21:11] Speaker 02:
Here, the idea... It was directed to doing it on the internet, right?

[00:21:16] Speaker 02:
And that's why it failed, is because it was just a commonplace idea that had existed before the internet and saying do it on the internet.

[00:21:23] Speaker 02:
This is not an idea

[00:21:25] Speaker 02:
that existed before the internet because you could not create media in this way.

[00:21:32] Speaker 01:
You could not... But you could tailor content before the internet, right?

[00:21:36] Speaker 02:
Certainly, but that wouldn't come within the confines of the claims here.

[00:21:40] Speaker 02:
And that's not what this direct... Because it didn't involve the internet.

[00:21:45] Speaker 02:
No, because the content is... The publication is different here because you're making the content after you learn about

[00:21:55] Speaker 02:
You're making the website after you learn about the user, and you're able to provide dynamic content.

[00:22:01] Speaker 04:
Isn't that how you would always tailor information for an individual?

[00:22:05] Speaker 04:
Based on information you knew about the user first?

[00:22:08] Speaker 04:
How in the world would you be able to do any kind of tailoring of content for an individual without knowing something about the individual in the first instance?

[00:22:16] Speaker 02:
Before you would create content based on groups.

[00:22:20] Speaker 02:
of individuals or groups of people.

[00:22:23] Speaker 04:
You would say... Like based on the address, you know, the LA Times, if you live in Orange County, you're going to get the Orange County section included with your LA Times newspaper.

[00:22:33] Speaker 04:
Likewise, you're going to get an advertising insert in your LA Times newspaper that is for services that are available in Orange County.

[00:22:42] Speaker 04:
If you live in the Valley, San Fernando Valley, you're going to get the San Fernando Valley insert.

[00:22:47] Speaker 04:
So that's based on information you knew already about

[00:22:50] Speaker 04:
the particular reader of the newspaper.

[00:22:54] Speaker 02:
And I think your honor's hypothetical goes to why this is different because in that instance what is happening is the LA Times or the publication is making the content and then saying, all right, we have groups of people that live here, let's send them content A. We have groups of people that live here, let's send them content B.

[00:23:16] Speaker 02:
And you're basing that on sort of large swaths of people, not on an individual's specific characteristics.

[00:23:23] Speaker 04:
So here, in this instance... Well, I thought in the spec, this is, you know, if you're a rich person, you get advertised the rich coffee.

[00:23:32] Speaker 04:
If you're not so rich, you get the sludge of coffee.

[00:23:36] Speaker 02:
Right?

[00:23:37] Speaker 02:
That's what the spec says.

[00:23:38] Speaker 02:
That is what the spec says.

[00:23:41] Speaker 04:
But the difference there... We're talking about broad-based categories of people.

[00:23:45] Speaker 04:
necessarily in your claim talking about very specific, targeted, individualized, personalized marketing based on, you know, 80 million different factors to come up with the perfect coffee for a person.

[00:24:00] Speaker 02:
And the difference here though, your honor, is that in our invention, what the internet allowed you to do is say, all right, if I go to a website, they can say, all right, you know, Nick is a poor person, give him his sludge coffee.

[00:24:13] Speaker 02:
They make that determination.

[00:24:16] Speaker 02:
after I've gone there.

[00:24:17] Speaker 01:
No, you said that the content could be created before the person clicked on and streamed to the person depending on that characteristic of resonance.

[00:24:27] Speaker 02:
There is a significant difference between creating the content and creating the web page.

[00:24:36] Speaker 02:
When you create the content, what you are doing is creating a large volume of possibility of content

[00:24:44] Speaker 02:
The webpage would be what you are describing Judge Chen of sending out the flyer with the newspaper.

[00:24:52] Speaker 02:
That is not made until we have learned about that specific person.

[00:24:57] Speaker 02:
And in this instance too, we can now, it cannot be the same as that flyer because that flyer will never change its content.

[00:25:05] Speaker 02:
When you receive that flyer, it will be the same flyer on day one.

[00:25:11] Speaker 01:
I thought you agreed that there could be predetermined content here that didn't change.

[00:25:15] Speaker 01:
They create content for the web page depending on somebody's address and they communicate that content to the person depending on that person's address.

[00:25:23] Speaker 01:
What's the difference?

[00:25:24] Speaker 01:
I don't understand.

[00:25:26] Speaker 01:
The difference between that and the earlier media practice.

[00:25:30] Speaker 02:
The difference is that here you have the ability with this invention to change the content.

[00:25:36] Speaker 02:
Before you didn't.

[00:25:38] Speaker 01:
But where does it say that you have to have the ability to change the content?

[00:25:41] Speaker 02:
The claim requires that the content be dynamic.

[00:25:46] Speaker 02:
In particular, if you look at claim one, it requires an interactive interface configured to provide dynamic website navigation data to the user.

[00:26:03] Speaker 02:
So the content has to be dynamic.

[00:26:07] Speaker 04:
Now, what does dynamic mean?

[00:26:09] Speaker 04:
That could just be high end coffee versus low end coffee.

[00:26:12] Speaker 02:
It could be your honor, but it could also be a situation where that now you have something is, as I'm looking at the website, something is being updated or something is changing.

[00:26:23] Speaker 01:
Yeah, but that's the point.

[00:26:24] Speaker 01:
It could be, but it's within the claim that the content is predetermined and streamed to somebody depending on address.

[00:26:33] Speaker 01:
It doesn't require

[00:26:35] Speaker 01:
that the content be changed when it's communicated.

[00:26:38] Speaker 02:
It requires that the website data be dynamic, is what the claim does require.

[00:26:45] Speaker 00:
So what you do is you're creating a tile.

[00:26:47] Speaker 00:
It's got predetermined content in it.

[00:26:50] Speaker 00:
And when somebody gets on the website, then what makes it dynamic is that the choice of the content of the data that's in there then is streamed to the user.

[00:27:03] Speaker 00:
And that's what tailors it.

[00:27:05] Speaker 00:
Correct.

[00:27:05] Speaker 00:
So it's kind of like the opposite of what you do when you do research, you send out a political mailing.

[00:27:12] Speaker 02:
Yes, that's exactly it.

[00:27:13] Speaker 02:
And that's why this is a different, fundamentally different idea than what was done before.

[00:27:20] Speaker 00:
Before you sit down, I think you're already out of time.

[00:27:23] Speaker 00:
I think I... I'd like for you to just make a couple of comments on interactive interface and whether it's indefinite or not.

[00:27:32] Speaker 02:
It is not indefinite, your honor, because one of skill in the art would have reasonable certainty as to what it means.

[00:27:40] Speaker 02:
The only evidence in the record is the evidence of IV's expert explaining what it means.

[00:27:46] Speaker 02:
There is no evidence.

[00:27:48] Speaker 04:
But what would be a one sentence sum up of the meaning of interactive interface?

[00:27:52] Speaker 02:
The interactive interface is the software providing the dynamic content.

[00:28:00] Speaker 04:
But it's also the display itself, right?

[00:28:04] Speaker 02:
No, Your Honor.

[00:28:05] Speaker 02:
Why did you use the word medium before?

[00:28:07] Speaker 02:
Well, the patent uses the word medium.

[00:28:09] Speaker 02:
Right.

[00:28:10] Speaker 02:
So we got to at least be a little bit tethered to the patent.

[00:28:14] Speaker 02:
And we believe that by saying medium, that that is the idea of the software providing that data, providing that medium.

[00:28:25] Speaker 04:
Right.

[00:28:26] Speaker 04:
Because the interface comprises a display.

[00:28:29] Speaker 04:
So the display is part of the interface.

[00:28:33] Speaker 02:
It can't just be software.

[00:28:35] Speaker 02:
If you mean by display the website, that's what display means here.

[00:28:42] Speaker 02:
Not display in a sense of a hardware physical display that I have in front of me.

[00:28:48] Speaker 02:
The district court specifically found in this construction that when the patent uses display, it doesn't mean a physical display.

[00:28:56] Speaker 02:
But it's the software that's providing the content

[00:28:59] Speaker 02:
that is sent to my system and then is assembled as a website.

[00:29:06] Speaker 01:
Okay, Mr. Bell, I think we're way out of time.

[00:29:09] Speaker 01:
We're nearly two minutes or above.

[00:29:11] Speaker 01:
Thank you, Your Honor.

[00:29:13] Speaker 01:
Good morning.

[00:29:19] Speaker 03:
May it please the Court?

[00:29:22] Speaker 03:
Picking up with the 382 patent, the two points we heard that changed the

[00:29:27] Speaker 03:
unpatentable abstract idea in the 382 patent to patentable subject matter here were the interactive interface and the dynamic website navigation data.

[00:29:36] Speaker 03:
With regard to the interactive interface, IV says in response to the indefinite arguments that they said today it could be software, but they said in their brief it could also be any means for communication.

[00:29:47] Speaker 03:
They say that in page 46 of their opening brief and on page 29 of their reply brief.

[00:29:52] Speaker 03:
So they've also said in other places in their brief it could be software.

[00:29:56] Speaker 03:
Today we heard it could be a webpage manager.

[00:29:58] Speaker 00:
Isn't that more an issue of whether the term is indefinite as opposed to a one-on-one issue?

[00:30:06] Speaker 03:
Look, it goes to both because here when you say that the interactive interface can be any means for communication, simply adding a means for communication to a claim is insufficient under step two of ALIS to transform that unpatentable abstract idea into patentable subject matter.

[00:30:20] Speaker 03:
So you can't say on one hand the interactive interface is only a means for communication

[00:30:25] Speaker 03:
And on the other hand, it transforms the claim into Patentable Subject Matter.

[00:30:29] Speaker 03:
Because simply being a generic means for communication, the claims in Alice had a communications controller.

[00:30:34] Speaker 03:
And the Supreme Court found that wasn't sufficient to transform the claim from Patentable Subject Matter, from Unpatentable Subject Matter, to Patentable Subject Matter.

[00:30:41] Speaker 04:
But maybe this isn't generic structure.

[00:30:43] Speaker 04:
Maybe this is doing something that no computer had ever done before.

[00:30:48] Speaker 04:
So now there's some kind of interesting novel functionality happening.

[00:30:52] Speaker 03:
Well, for that to be the case, it would have to be in the claim or in the court's claim construction.

[00:30:57] Speaker 03:
In the court's claim construction here, it's just held to be a medium.

[00:31:00] Speaker 04:
But I'm talking about the claim overall.

[00:31:02] Speaker 04:
The claim overall is tailoring information using these factors to present information to website users, assuming that's a new functionality to be able to achieve that kind of personalized

[00:31:20] Speaker 04:
use or provision of information and content, then what we have here is something special and unique.

[00:31:28] Speaker 03:
Well, first of all, if you look at the patent specification, it describes you're not talking about something special and unique.

[00:31:33] Speaker 03:
Tailoring content on the internet was known before the 382 fact.

[00:31:37] Speaker 01:
I think they've either admitted that that's true or they've come pretty close to admitting that that's true.

[00:31:44] Speaker 01:
What I understand them to be saying is that it wasn't known to do that in connection with web pages before.

[00:31:51] Speaker 01:
So this is addressing a specific thing having to do with the internet, which somehow makes it different from the abstract idea of tailoring content in the print context.

[00:32:03] Speaker 03:
Well, there's two responses to that.

[00:32:05] Speaker 03:
First, it wasn't new in the internet, and the 3.82 patent describes that.

[00:32:09] Speaker 03:
In any event, if you simply take an abstract idea of tailoring content and move it onto the internet,

[00:32:14] Speaker 03:
Under Ultimersal, that's not enough.

[00:32:16] Speaker 03:
In Ultimersal, they were also dealing with dynamic website navigation content.

[00:32:20] Speaker 03:
In Ultimersal, they had controlling access or providing access to content based on whether the user had viewed advertisements or answered specific questions.

[00:32:30] Speaker 03:
So they're dynamically having website navigation data that when you, whether you view the advertisement or whether you answer the questions to determine what content we get access to.

[00:32:40] Speaker 03:
And that wasn't sufficient in Ultimersal to make the claims patentable.

[00:32:44] Speaker 03:
Also, if you look at the 382 patent, it's in several places.

[00:32:48] Speaker 03:
But the most telling is column six, lines 18 through 22, which is in the joint appendix of page 43.

[00:32:55] Speaker 03:
It talks about the most beneficial aspect of the invention as it permits a company to tailor content, to tailor the delivery of information to a specific user without requiring the user to input a lot of mundane and unnecessary information.

[00:33:13] Speaker 03:
It's not that you could deliver tailored content.

[00:33:16] Speaker 03:
What made 382 special is that you could deliver the content without requiring the user to input a lot of mundane information.

[00:33:25] Speaker 03:
And if you go back to column three and column four in the background of the patent, they explain that delivering tailored content on the internet in response to a user entering their profile, entering their user ID and their password, or answering questions, that was known, the idea that you could pick.

[00:33:42] Speaker 03:
OK, this is Matt Moore.

[00:33:44] Speaker 03:
I want to put up this block of information because this is what he's interested in, this block of information because this is the way he answered certain questions.

[00:33:52] Speaker 04:
Maybe that makes this a special implementation of tailoring information to a web user.

[00:33:59] Speaker 04:
Instead of forcing a user to enter in all this information right then and there in the present, it's all based on prior inputted information by the user.

[00:34:10] Speaker 03:
Well, here, when you look at the claims, and I direct the court to the claims of the 382 patent, which are in the Joint Appendix, page 44, there's nothing in the claims that add any specific implementation details.

[00:34:22] Speaker 03:
If you break these claims down, what you really get to is a display depicting portions of the website visited by the user, just a display, conventional, like any computer, just like Alice, as a function, a function they don't even specify.

[00:34:35] Speaker 03:
So how this content is displayed on the display

[00:34:39] Speaker 03:
is not even claimed.

[00:34:40] Speaker 03:
It couldn't be more generic.

[00:34:42] Speaker 03:
It's just a function in the claim.

[00:34:44] Speaker 03:
And the only thing they specify are the two data inputs.

[00:34:48] Speaker 03:
And specifying certain data inputs are not enough to transform an unpatentable abstract idea into patentable subject matter.

[00:34:55] Speaker 00:
What about the provision that deals with the dynamic use of data?

[00:35:00] Speaker 03:
Well, it's not the dynamic use of data.

[00:35:03] Speaker 03:
It's dynamic website navigation data.

[00:35:05] Speaker 03:
So all that is is your user activity on the website.

[00:35:09] Speaker 03:
That's your browsing history.

[00:35:11] Speaker 03:
And so all you have is a data input that changes as the person uses the internet.

[00:35:17] Speaker 00:
Is that an improvement over functionality of the internet?

[00:35:21] Speaker 03:
No, because browsing history has been used long before this patent.

[00:35:25] Speaker 00:
Not the web browser usage, but tailoring information based on web browser usage.

[00:35:32] Speaker 03:
Ultramershal had that as well.

[00:35:33] Speaker 03:
Ultramershal had tailoring the information about the user.

[00:35:36] Speaker 03:
Did the user view the advertisement?

[00:35:38] Speaker 03:
did the user answer the interactive questions.

[00:35:41] Speaker 03:
And based on how that history changed, when the user hadn't viewed the advertisement, the user couldn't access the copyrighted media.

[00:35:48] Speaker 03:
When the user had seen the advertisement or had answered the interactive questions, then after that browsing history had been created, they could see the content.

[00:35:59] Speaker 03:
So it's no different than the content that was used in Ultramershal.

[00:36:02] Speaker 04:
Is it your position that claims like

[00:36:06] Speaker 04:
in this category or just out?

[00:36:09] Speaker 04:
Or are you saying that with more implementation details, this claim would be eligible under 101?

[00:36:17] Speaker 03:
With more implementation details, it would be eligible, like in DDR.

[00:36:20] Speaker 03:
It's a fundamental difference between the two cases.

[00:36:23] Speaker 01:
Well, what would... I'm not sure that's the difference between this case and DDR's implementation details.

[00:36:29] Speaker 01:
Well, there's multiple differences.

[00:36:31] Speaker 01:
I would say, first... There's a fundamental difference in the sense that in DDR,

[00:36:35] Speaker 01:
It was solving a problem that was created by the internet rather than a problem that existed before and was addressed.

[00:36:42] Speaker 03:
That's correct.

[00:36:42] Speaker 03:
I'd say there's at least three distinctions.

[00:36:44] Speaker 03:
First, in DDR, that claim was necessarily rooted in technology, where here it's not.

[00:36:49] Speaker 00:
In DDR, as you were explaining... What about the provision of the data in real time?

[00:36:55] Speaker 03:
There's nothing in the claims that requires the provision of data in real time, and even if they did, Alice and Alta-Mershal dealt with that as well.

[00:37:03] Speaker 03:
and Alice, the computer, made it real-time and simply using the internet or a computer to take a long-standing problem, tailoring content and do it faster in real-time wouldn't be sufficient to transform the claim.

[00:37:16] Speaker 00:
But real-time is different from doing it faster, isn't it?

[00:37:21] Speaker 00:
Real-time is, when you say real-time, you're not even measuring it in terms of pace.

[00:37:27] Speaker 00:
It's continuous.

[00:37:31] Speaker 03:
There's nothing in the claims that requires it to be in real time, or there's nothing in the claims that requires it to be continuous.

[00:37:36] Speaker 00:
If there was something in the claims, if we were to find the dynamic term with respect to data, that that was real time, then would you say that this is paneligible?

[00:37:47] Speaker 00:
That that's listed out of the abstract arena and supplies the innovative concept that we would require?

[00:37:56] Speaker 03:
No, because to the extent you would find that, it would be the same as alter-mercial.

[00:38:00] Speaker 03:
where whether the user had viewed the advertisement or whether the user had answered the questions changed.

[00:38:06] Speaker 03:
That would have changed in exactly the same way, so it would be indistinguishable from the idea and the way Alta-Mershal used the internet.

[00:38:13] Speaker 04:
I guess maybe the difference Judge Rainer is suggesting is that, like, what if there was a panel on the website display showing the Dow Jones ticker moving, you know, there's a constant data stream where the data being presented on the display

[00:38:30] Speaker 04:
Although I'm not sure what the word display means anymore after talking to the opposing council.

[00:38:35] Speaker 04:
But here, in this instance, talking about a display where you see the Dow Jones moving up and down, moment to moment.

[00:38:43] Speaker 04:
And so therefore, there is some kind of dynamic real-time data.

[00:38:47] Speaker 04:
It's not some kind of fixed cold stored data that's being presented to the user.

[00:38:53] Speaker 03:
I wouldn't see how that would make a difference either if you're just real-time data as

[00:38:57] Speaker 03:
as opposed to just pre-sorted data streams have been along long before the 382 data.

[00:39:01] Speaker 00:
But they're not static.

[00:39:02] Speaker 00:
A data stream is not static.

[00:39:05] Speaker 03:
A data stream that's not static.

[00:39:07] Speaker 03:
Well, in this case, they are.

[00:39:08] Speaker 03:
They are.

[00:39:09] Speaker 03:
The examples they give, if you look at the patent at the time of data.

[00:39:12] Speaker 00:
But the claim goes to dynamic data.

[00:39:16] Speaker 00:
And we're being told that dynamic would be real time.

[00:39:20] Speaker 03:
Well, the claim goes to dynamic data only in the sense, if you look at the only way place dynamic is used in the claim,

[00:39:26] Speaker 03:
is dynamic website navigation data.

[00:39:28] Speaker 03:
So when I'm on the internet and I'm navigating around, I went to website A, I'm going to website B, I'm going to website C, that data is being updated by what I've done on the internet.

[00:39:37] Speaker 03:
That's the exact same thing that Ultramershal had.

[00:39:40] Speaker 03:
Because here, I go on the website first, I can't access the copyrighted media because I haven't done what's required.

[00:39:46] Speaker 03:
Now, I navigate the website, okay, I want to view the advertisement, I view the advertisement, they ask me a few questions, I answer the questions.

[00:39:54] Speaker 03:
Now, because that data's been changed,

[00:39:57] Speaker 03:
I can view the content.

[00:40:00] Speaker 03:
So it would be indistinguishable from alt-immersion.

[00:40:02] Speaker 04:
Do you read dynamic potentially as the same adjective as customized, or tailored, individualized?

[00:40:12] Speaker 04:
You're providing data that is individualized or customized to the user?

[00:40:17] Speaker 03:
Customized or changing.

[00:40:19] Speaker 03:
Changing would probably be the word I'd use.

[00:40:22] Speaker 03:
Dynamic just means that that data changes if somebody browses the internet.

[00:40:27] Speaker 04:
What would this claim need in your understanding of 101 to get over the hump that it doesn't have now?

[00:40:36] Speaker 03:
I think it would need to be necessarily rooted in technology.

[00:40:39] Speaker 03:
It'd be having to solve a problem that only existed because of the internet.

[00:40:42] Speaker 03:
And it would have to do something in a very specific way.

[00:40:46] Speaker 03:
It would need all three things?

[00:40:47] Speaker 04:
Yes.

[00:40:50] Speaker 04:
What if there was some kind of algorithm recited in the claim for

[00:40:57] Speaker 04:
how the interactive interface actually accomplished its function of providing the customized information.

[00:41:06] Speaker 04:
Would that be enough for 101?

[00:41:08] Speaker 04:
Even if it's not necessarily, you know, solving a problem rooted in technology?

[00:41:14] Speaker 03:
No, and that's based on the Supreme Court in Fluke.

[00:41:15] Speaker 03:
Where there they specified a specific algorithm that was presumed to be novel and it still wasn't sufficient to transform the claim to patentable subject matter.

[00:41:34] Speaker 00:
I'm looking at page 43 of the record, and this is column 6 of the patent, line 40 or 39.

[00:41:47] Speaker 00:
So this system allows the information provider to selectively provide information to the information user without the information user's knowledge.

[00:41:56] Speaker 00:
without irking the information, the user, by telling them that they need a password or they need to be a member.

[00:42:04] Speaker 00:
It permits those members to get the information seamlessly.

[00:42:08] Speaker 00:
Isn't that innovative or an innovative concept as opposed to what the prior art had?

[00:42:15] Speaker 00:
And that's the static mailing of a letter to a designated universe here

[00:42:24] Speaker 00:
the system is seamlessly providing the information without the user inputting the information?

[00:42:31] Speaker 03:
No, because there's a fundamental distinction here in the claims, and this was discussed by my friend.

[00:42:35] Speaker 03:
First, the only thing that's dynamic about the data in this case is the website navigation data that's stored as an input, as an input to what's shown on the page.

[00:42:46] Speaker 03:
As far as the content, there's nothing in the claims that suggests the content isn't pre-stored.

[00:42:51] Speaker 03:
In fact, the only examples the patent gives are

[00:42:54] Speaker 03:
the time of day, simply by looking at, of course, the time of day is dynamic website navigation data when I log in.

[00:43:01] Speaker 03:
And it just looks at that time of day and it says, then it puts up the pre-store.

[00:43:05] Speaker 00:
If it's morning, I guess the ride is on.

[00:43:06] Speaker 00:
Just putting the content issue aside and tailoring the content.

[00:43:12] Speaker 00:
Doesn't this read to a change in the use of the internet to where now you have a seamless stream of information that's being supplied to whether, forget the content,

[00:43:24] Speaker 00:
Just the technology itself, the method of streaming seamlessly information without the user having to do anything.

[00:43:33] Speaker 00:
And that information is much like ticker tape that's sitting there.

[00:43:38] Speaker 00:
You don't have to do anything.

[00:43:39] Speaker 00:
It's just showing you the Dow Jones average on a continuous basis.

[00:43:42] Speaker 03:
Is that what we have here?

[00:43:44] Speaker 03:
No, because that's not required by the claims.

[00:43:46] Speaker 03:
The claims cover the example of simply time of day.

[00:43:49] Speaker 03:
You've got to go back to the language of the claims.

[00:43:51] Speaker 03:
And the claims say you just have this display

[00:43:54] Speaker 03:
as a function of user personal characteristics?

[00:43:56] Speaker 01:
Yeah, but I think what he's asking about is the user doesn't have to enter any data in order to get the content.

[00:44:05] Speaker 01:
And that's the difference here.

[00:44:07] Speaker 01:
But I guess that was true before, too, in the print media examples, right?

[00:44:11] Speaker 01:
Correct.

[00:44:12] Speaker 03:
Correct.

[00:44:12] Speaker 03:
It was true in all print media.

[00:44:13] Speaker 03:
You know, you could change in real time whether you're a Republican or Democrat and get a different political

[00:44:18] Speaker 03:
You know, even in a conversation, people, whenever they're talking to somebody... But that's static.

[00:44:23] Speaker 00:
I mean, you're doing something.

[00:44:26] Speaker 00:
But here, as you move through the use of the Internet, it's reading you.

[00:44:33] Speaker 00:
You're not providing that information.

[00:44:35] Speaker 00:
You're not saying, I'm a Democrat now.

[00:44:37] Speaker 00:
I'm a Republican now.

[00:44:39] Speaker 03:
Well, just in the conversation example, you would, when anybody's talking to somebody else, they tailor what they say based on who they are and what they're interested in.

[00:44:48] Speaker 03:
And as you learn something new, they're interested in it.

[00:44:50] Speaker 00:
That's a conversation, but this is a one-sided conversation, isn't it?

[00:44:54] Speaker 03:
Well, that's the difference here.

[00:44:55] Speaker 03:
Here, the data of personal characteristics and website navigation data is pre-stored.

[00:45:01] Speaker 03:
And that navigation data gets updated.

[00:45:02] Speaker 00:
But once you pre-store it, then the data stream that comes to you is different.

[00:45:10] Speaker 03:
But the content is pre-stored.

[00:45:11] Speaker 00:
The content.

[00:45:12] Speaker 00:
That's originally.

[00:45:13] Speaker 00:
The content is pre-stored.

[00:45:15] Speaker 00:
My name.

[00:45:16] Speaker 00:
my gender, my race, whatever, that's pretty short.

[00:45:18] Speaker 00:
But after that, on the basis of that information, I'm receiving a stream of data that's different based on my usage of the internet.

[00:45:29] Speaker 03:
That's no different than newspapers, than political mailings, or even in the prior art that they've distinguished.

[00:45:34] Speaker 03:
They've distinguished that what's being streamed to the user is different based on what they answer as questions.

[00:45:40] Speaker 03:
That existed, and they admit that was in the prior art.

[00:45:42] Speaker 00:
When I look at a newspaper,

[00:45:44] Speaker 00:
It's not updated as I'm reading it.

[00:45:47] Speaker 03:
Well, the content, for example, when the user was entering questions, as they talk about in the prior art, and they talk about the most beneficial aspect of this invention, and they even say in the sentence you cited, they don't have to irk the person to enter any, they don't want to irk the person to enter information.

[00:46:03] Speaker 00:
Right, it updates it automatically.

[00:46:04] Speaker 03:
But when they enter the information, that content, the stream, that part of the claim is fundamentally unchanged.

[00:46:11] Speaker 03:
The only difference here is the data input.

[00:46:13] Speaker 03:
whether it's the pre-stored personal characteristics or whether the user had to log in.

[00:46:18] Speaker 03:
And simply changing data inputs isn't sufficient to change an unpatentable abstract idea to patentable subject.

[00:46:24] Speaker 03:
You can imagine how easy it would be to tailor claims with draftsman art to change the data input.

[00:46:31] Speaker 03:
And that's the only thing they did here is instead of pre-storing the personal information and the website navigation data, instead of having it entered, they required it pre-stored.

[00:46:42] Speaker 03:
But the data inputs are still the same.

[00:46:46] Speaker 01:
OK.

[00:46:46] Speaker 01:
All right.

[00:46:47] Speaker 01:
Thank you, Mr. Martin.

[00:46:49] Speaker 01:
Mr. Ball, you've got two minutes here.

[00:46:51] Speaker 02:
Thank you, Your Honor.

[00:46:52] Speaker 02:
Briefly, I just want to reiterate that this patent, the 3-2 patent, is very much directed to a problem that only exists on the internet.

[00:47:00] Speaker 02:
This is not the situation in Ultramershal or other cases where there was a problem, that commonplace issue that existed before.

[00:47:09] Speaker 02:
If we look at the specification itself,

[00:47:11] Speaker 02:
It says, this invention pertains to the global computing network, otherwise known as the internet.

[00:47:16] Speaker 02:
That's in the field of the invention.

[00:47:18] Speaker 02:
And the argument was also made in DDR holdings.

[00:47:22] Speaker 02:
Well, isn't this really, when you're creating this hybrid website that is a composite of the host website and the third party product, isn't that really the store within the store concept?

[00:47:34] Speaker 02:
And the court said that that analogy did not account for the ephemeral nature of the internet.

[00:47:39] Speaker 02:
or the instantaneous transport of data on internet protocol, that's what's going on here is there's an invention that says we have this new technology.

[00:47:51] Speaker 02:
How do we use it to create something new and different?

[00:47:54] Speaker 02:
And the reasons, again, that this is different than something that came before is you have dynamic content, which I will say I believe is different than just customization.

[00:48:05] Speaker 02:
I think dynamic, when it uses that, it gets to this idea of

[00:48:09] Speaker 02:
the data stream, so the pipe of data that's being continually delivered.

[00:48:13] Speaker 04:
And you have the profiles that are being automatically downloaded, so you have... I still don't quite get it, because the data that could be ultimately presented to the user can be static.

[00:48:27] Speaker 04:
It doesn't have to... the claim doesn't require, I don't think, that the data be like the running ticker of the Dow Jones.

[00:48:35] Speaker 02:
It does require that by the words of the claim, that the data be dynamic, that could be that the same data is being supplied for a time, or it could be that the data is being changed.

[00:48:47] Speaker 01:
But the dynamic data has to be continually being delivered to the... You have to have... You agreed earlier that it was fixed content, pre-created, predetermined content, streaming that would be covered by the claim.

[00:49:02] Speaker 02:
If it's streaming the data, correct, Your Honor.

[00:49:04] Speaker 02:
That's fundamentally different than what we had before with a print mailing.

[00:49:09] Speaker 02:
There's no streaming.

[00:49:10] Speaker 02:
Look, it's done electronically through the mail.

[00:49:12] Speaker 01:
If that were the test, then every time you use the internet for an old idea, it would be patentable.

[00:49:19] Speaker 01:
We know that's not true.

[00:49:21] Speaker 02:
And the point I'm trying to make is that this is not an old idea.

[00:49:25] Speaker 02:
This is a brand new idea that solves a problem on the internet of how to use specific internet technology to do this.

[00:49:33] Speaker 02:
I just want to briefly say, too,

[00:49:35] Speaker 02:
that a lot of what Mr. Moore was saying really goes to either 102 or 103 arguments of, well, this has been done before, hasn't it?

[00:49:44] Speaker 02:
That is a different test.

[00:49:48] Speaker 02:
And then his other argument was, or he said that this patent would be eligible if it had more details, if it specified in greater detail exactly how to perform it.

[00:49:59] Speaker 02:
That's an enablement question, though.

[00:50:01] Speaker 02:
The question should be if one of Steel and the Art can read the claims and know how to... Well, preemption matters in 101.

[00:50:07] Speaker 04:
If you've preempted all ways of achieving a given result, that can very much be a 101 problem.

[00:50:13] Speaker 02:
That is true, Your Honor, and we do not preempt all ways of doing it.

[00:50:18] Speaker 02:
In fact, the district court and its construction provided the specific implementation details, and I would argue that Mr. Moore is wrong that there is not a specific implementation.

[00:50:30] Speaker 02:
And again, I point the court to the district court's construction of display depicting portions of the website visited by the user as a function of the user's personal characteristics where the court construed that as a display depicting portions of the website of the user preselected by a web page manager by matching personal characteristics in a user profile automatically downloaded from the interactive interface based on information identifiers.

[00:50:58] Speaker 02:
It goes on to say, to address your question, I don't want you to be confused what I mean about display.

[00:51:03] Speaker 02:
It talks about how display does not refer to a physical device, but rather the depiction of the website.

[00:51:09] Speaker 02:
So here, when the patent uses display, it's really talking about what you see on the screen, but not the hardware, the screen itself.

[00:51:16] Speaker 02:
Does that help alleviate that confusion?

[00:51:20] Speaker 02:
So can I see it, or can I not see it?

[00:51:22] Speaker 02:
You can see it, but the display refers to the website that's being shown.

[00:51:27] Speaker 02:
and I believe I'm out of time.

[00:51:29] Speaker 02:
Thank you.