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Case before the court is mortgage greater versus first loan choice.

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Case number 151415.

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Appeal from the United States District Court for the Central District of California.

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You're offering, you want to, is there three minutes for rebuttal?

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That's great.

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Okay.

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Good morning, Your Honor.

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May it please the Court?

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My name is Craig Coffin.

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I'm here on behalf of the Penline Mortgage Crater.

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Your Honor, we're here to look at the decision of the District Court in

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Orange County surrounding waiver in section 101.

[00:01:23] Speaker 03:
And it was... Can I just get one thing just concrete?

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Were all of the claims in the two patents held invalid in the judgment?

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No, Your Honor, just the four asserted claims.

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So it's claims 1, 2, and 19 of the 694... Does that... The final judgment says, final judgment

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based on the earlier decision.

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The earlier decision says the patents are invalid.

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Do we need to reform that in order to limit it to a specific list of asserted claims?

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I believe his order specifically states that it's claims 1, 2, and 19 of the 694 patents.

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I believe it doesn't.

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A30.

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I could be wrong.

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I recall looking at this at one point in the dark and distant past, including that he had limited it to the specific clients.

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But in the event that he did not limit it to specific clients, it should be limited to the specific clients because that was the only issue presented to the court.

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It was the only issue decided by the court.

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There was no discussion.

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of all the claims generally.

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There are a number of independent and defendant claims that have different limitations that may or may not.

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Sorry for the detour.

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No, happy to answer any questions.

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So, the timeline.

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This case was filed in 2013.

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By 2013, we had Bill Skeet, we had Cybersource,

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the CLS analysis turning through this court, well known to the bar.

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In August of 2013, Judge Guilford instituted his standing patent rules to govern the process of patent cases beforehand and made them applicable to this case.

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How did he make them applicable to this case?

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Because on their face they say they apply only to cases filed on or after September 1st and this was filed January 10th.

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He issued an order, I believe it was on August 30th or 31st of 2013, advising us that he had entered the rules and advising us that the rules were applicable to this case, notwithstanding the statement on the face of the rules that say they don't apply to cases before that.

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So it's in the docket that he issued an order.

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It was August 30th or 31st.

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It was either the day that he promulgated the rules and made them available or it was the day after.

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We hadn't had a scheduling conference.

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Nothing had happened other than the appellees had filed a motion dismissing or transfer that was pending before the court in response to the complaint.

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And that was in play, but there had been no answer.

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So there was no objection to his application of these rules to your case?

[00:04:14] Speaker 01:
No.

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And his rules, I mean, they are his, obviously.

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are somewhat different than the rules, for instance, in the Northern District of California.

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Are they not?

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That's correct, Your Honor.

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The current version of the Northern District rules require you to make an initial disclosure, and then if you are going to change your disclosures in any way, you have to seek leave of court before you can submit those disclosures.

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In contrast, Judge Guilford's standing order does contemplate a final set of infringement contentions, a final set of infidelity contentions,

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but requires an explanation of good cause for any changes made to those.

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And you're not saying that he, in some way, didn't have the authority to issue rules that differed from those in the Northern District of California?

[00:05:03] Speaker 00:
Absolutely not.

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Judge Guilford is free to adopt the patent rules as he sees fit, so long as they comport with this court's decision in O2.

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We're not arguing that they don't.

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OK.

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Now, so one of the questions you have with respect to good cause is whether, entirely, that should have required

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a prejudice analysis, right?

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I think if they don't, and the Northern District President, and we don't have any president applying his rules other than this one, the Northern District President is consistently held that if the party asserting the new defense, or the new issue, whether it's a new infringement allegation or whether it's a new invalidity allegation, has a burden of showing that they were diligent in

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coming up with and coming forward with that particular defense or that particular infringement allegation.

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And if there is no diligence, then there's no need to get to the question of prejudice.

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If the answer to the question, were they diligent, is no, that ends the inquiry and there is no need to consider prejudice.

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Now he didn't really consider prejudice in this case, whether he has to under his rules or not, but they clearly were not diligent in bringing the defense, so we don't need to get to prejudice.

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OK, and though you do spend time in your brief on the issue of prejudice and its failure to get there, I see two problems with that.

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One is that we have repeatedly said that district courts have broad authority to interpret their own rules.

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And this would be especially so where we're talking about a single judge adopting a set of rules of his own.

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And the other problem is I don't see that you argued prejudice in the first opportunity you had for hearing on this issue.

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I believe we argued, we made a prejudice argument, a short one, but the focus really was and always has been diligence.

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And the focus of our briefing, at least, has been primarily on the diligence of first choice in bringing the 101 defense to the court and not so much the prejudice.

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Okay.

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On the issue of diligence, I mean, you correctly cite us to your supplemental authority for the proposition that we said.

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a district court was acted within his or her discretion to deny a motion to amend solely on the basis of the Supreme Court's decision analysis.

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But here we're talking about a standard of review that is abuse of discretion.

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So even if it's true that it might have been within a district court's discretion to deny a motion to amend, wouldn't

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would also be within the district court's discretion to grant a motion to amend?

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I think that if there's a clear lack of showing of diligence and the appellees here have the burden of showing diligence under this court's precedent in O2 micro, that it is an abuse of discretion if they don't meet their burden to show that they were diligent in bringing the defense

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I acknowledge that it is a high burden of proof here.

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I recognize that.

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But this is, I think, one of the rare cases where it's inexplicable.

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Everybody would have thought that they would have raised the Section 101 defense in 2014 and 2013 in their initial infelidity contention.

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And yet, in their initial infelidity contention, submitted to the court two months after they fled 101 in their answer,

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They say, affirmatively, we are not asserting Section 101 as an offense.

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Can you fill in the timing of close of discovery, summary judgment period, these, I guess, final invalidity contentions, trial date?

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Can you explain where in that sequence this, in particular, the final invalidity contentions falls?

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So the initial invalidity contentions came two months after the answer in December 2013.

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The final invalidity contentions came in late August of 2014, pursuant to the scheduling of the court.

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Summary judgment was... We had a month and a half left on discovery.

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We had about a month and a half left on discovery and then we had our summary judgment deadline.

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We filed a motion to strike and a motion for partial summary judgment on one of their invalidity defenses.

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At the same time, Appellee's filed five motions for summary judgment.

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The judge

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vacated those particular motions because he felt that five motions was too much and that they should have brought one motion and so that started a schedule creep which led to the hearing in October on our motion strike and our motion for summary judgment once he had rendered his decision that they could retain their section 101 defense he then gave them a calendar to

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present a 35-page brief to the court.

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We had an account to respond.

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The hearing was held in January and we were set for a February trial date.

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Originally, we were set for a January trial date for the Tuesday after Martin Luther King Day.

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So let me describe a scenario of possible reasonableness of what they did and tell me what's wrong with it.

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There's always an interest in

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choosing the better over the less good issues for the court and the parties to spend their scarce resources, time, money, perhaps limits on depositions, whatever.

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Before Alice, there was substantially less

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less sharpening, less precision, less strictness of the 101 standard.

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And under this scenario, the other side could have thought, well, we actually have better issues than that, given the amount of time and resources those would take up.

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When ALICE comes down, they say, this is actually incredibly good.

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It's now moved up in the priority list.

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And that's a good enough reason to allow them to do what the court wants them to do, which is to prioritize how the case is going to be, what's going to be the center of attention in the case.

[00:11:32] Speaker 00:
A couple of responses to that, Your Honor.

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Traditionally in Northern California, the district court there and this court approving of that activity has viewed changes to contentions and validity or infringement contentions as being held to a stricter standard to avoid what is referred to as the shifting sands approach to litigation.

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And so in that context, courts have held and courts have applied a stricter high than the usual fairly flexible discovery responses.

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As far as the uncertainty, their theory of invalidity intersection 101

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is based in the fact that it could be done with pencil and paper.

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And that was a theory of 101 invalidity that existed in cyber source, that existed in dealer track, cases that were decided by this court long before Alice came along.

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But isn't it fair to say that given the splintered nature of our decision in Alice and the fact that there was clearly going to be some time frame in which it was going to take the Supreme Court to assess these questions

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that maybe the defendants thought the case was going to move more quickly and they could focus on otherwise dispositive issues and not get mired in the 101 world?

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Here's the other problem with that, and that's the overall context here.

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When they submitted their final invalidity contentions and their expert reports on invalidity, they added two new pieces of art that were not in the initial invalidity contentions.

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And Judge Guilford said, you can't do that.

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And Judge Guilford said, you can't do that.

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And those were the, they had focused, but they had focused only on those two pieces of prior art.

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All of the art that was cited in the original invalidity contention did not make it into the expert report.

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None of it did.

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It was all focused on their patent application and the piece of prior art cited in their patent application that they disclosed for the first time in their expert reports and their final contention.

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Well, what did that have to do with the 101 issue?

[00:13:35] Speaker 00:
It has nothing independently to do with the 101 issue, but it goes to Judge Taranto's prioritization and the nature of prioritization here.

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If they had prioritized, if there was a reasonable explanation around prioritization, and they had prioritized, and we had seen a really good anticipation defense that was presented in the initial infringement contentions, facility contentions, and carried through to the final ability contentions, then

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there's some sense that maybe they made a rational choice.

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But given the whole context here, there's no indication of that sort of focusing that went on early on.

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It's either they made a choice either to preserve their own patent applications or for unexplained reasons, not to assert a Second 101 defense.

[00:14:27] Speaker 04:
In addition to prioritization, do you think Section 35 might have implications here?

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Perhaps they were

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early on worried that a 101 might be weak enough that ultimately if they wasted the court's time with it, they might get hit with an exceptional case finding later on.

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But post-Alice and in the time frame when they added it back, they didn't need to be as concerned with that.

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There was never any articulation of 285 for not entering that particular decision.

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Isn't it the case though that there are some Alice or 101 motions that prior to the Supreme Court's decision in Alice were weak or even denied and that we know subsequent to Alice were stronger and perhaps have even been granted?

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That certainly is factually true.

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So given that, how could it be an abuse of discretion to allow a party in this time frame to change their mind before

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and after the Supreme Court's decision announced.

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Because their theory, Your Honor, because their theory was predicated on concepts that existed prior to Alice and such as those set forth in Cybersource and so.

[00:15:42] Speaker 04:
Well, I think an ultramarcial didn't this court deny a 101 to Alice twice and then ultimately granted a post to Alice.

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Did the theory change?

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The theory underlying the motion, did it change?

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In terms of Ultramershal, it couldn't have changed because it was just coming back from the grant vacate and remand.

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So isn't that very similar to here?

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I would argue no, only in the sense that they could have raised the issue before and they didn't.

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And that's the idea.

[00:16:15] Speaker 01:
Okay.

[00:16:16] Speaker 01:
Well, I'll give you a rebuttal back.

[00:16:30] Speaker 02:
May it please the court.

[00:16:31] Speaker 02:
My name is Rebecca Stodd-Inquil.

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I'm here on behalf of the Appellee's First Choice Land Services and NILUX Inc., who I will refer to collectively as NILUX.

[00:16:39] Speaker 02:
It rolls a little easier off the tongue.

[00:16:43] Speaker 01:
Why shouldn't we do this as a sandbag?

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I mean, what was it, six days after the Supreme Court granted cert now, you withdrew your 101 assertions.

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It seems like

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you were walking away from that, abandoning it, and then all of a sudden, at the close of discovery, you renew it.

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At the time of our initial invalidity contention, as Justice Stark noted, Ultramarcial II had been issued.

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And in Ultramarcial II, claims that are analogous to mortgage grader's claims, which have since been invalidated, were found to be patent-eligible under 101.

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with the specific focus on how a computer does or does not affect an abstract idea, change that law, change all commercial and in subsequent change our view of the cases as Mr. Grandinetti who had argued the motion to strike in front of Judge Gilbert noted and this is in the appendix A1010.

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Mr. Grady noted that we were kind of in a bind with our initial ability to contention.

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If we were too aggressive from the get-go, we'd be accused of overreaching and implicitly 285 implications.

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Of course, we were aware that ALIS would have been granted cert, but we're also aware of this court's ruling in ultramarital, compared to its ruling in ALIS.

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We felt that the claims in mortgage-creators' patents would have survived a pre-ALIS application of 101.

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But then once Alice was decided and the focus on the computer implementation and what that means or what it does not mean for an abstract idea refocused our view and led to the conclusion that we actually had a good faith reason to bring the 101.

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We weren't going to bring the 101 earlier and we didn't think it would prevail.

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That's the waste of our time, the waste of Court's time, the waste of Mr. Kaufman's time.

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Can I ask you to clear up the housekeeping matter

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I raised right at the beginning.

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What do we do about the language of Judge Guilford's decision at A30, which says the patents are invalid?

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I believe in the motion to strike order, Your Honor.

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A30.

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Whatever the order is.

[00:19:05] Speaker 02:
In the motion to strike order, Judge Guilford in the instruction

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Immediately following the, his motion strike had the two parts, it had the 101 motion strike and then it had the... The 28 page order?

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Yeah.

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Is that what it is?

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It's the one where he actually rules on the 101 question.

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Whatever it's called.

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On page 830.

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In his order, he states that

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I believe in his order he does state that it's applied to the assertive claim.

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This seems important, so I'm sorry to waste your time on this.

[00:19:54] Speaker 03:
So the final judgment of A1 and A2, A2 says in light of the January 12, 2015 order granting in part defendants omnibus motion for summary judgment, which is a motion that starts at A3, orders judgment entered against mortgage greater and in favor of first choice law.

[00:20:10] Speaker 03:
It doesn't say what the scope is, but it's in light of

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the order that runs from A3 to A30, the omnibus motion.

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Page A30, disposition.

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For the foregoing reasons, the motion is granted in part.

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The 728 and 694 patents are invalid under 35 U.S.C.

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101.

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He says at the end of the 101 analysis, the court grants summary judgment that the 728 patent claims 6 and 694 patent claims 1, 2 and 19 are invalid for failure to satisfy 101.

[00:20:44] Speaker 02:
I think that his statement at the very end of his summary judgment order was just a

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He forgot to add in the specificity that he had earlier in his order when he was actually analyzing the... So you agree that the scope, in fact, should be limited to the identified claims?

[00:21:06] Speaker 02:
Yes, Your Honor.

[00:21:06] Speaker 02:
We only addressed the asserted claims during our 101 analysis.

[00:21:10] Speaker 04:
I don't think so.

[00:21:10] Speaker 04:
Would it have been an abuse of discretion if Judge Guilford had granted the motion to strike your 101 defense?

[00:21:17] Speaker 02:
Yes, I believe it would have been another.

[00:21:19] Speaker 02:
How could that be?

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Because the implication of Alice was sufficient

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to change the face of the law directly applicable to these claims.

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Of course, there are other claims that could have been inserted from other patents where Alice wouldn't have had a direct implication, but that was not these claims.

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These claims are specifically tied to a computer and how doing steps from abstract steps on a computer is or is not

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overall patently inedible under 101.

[00:21:45] Speaker 01:
So are you saying that we erred in finding in similar circumstances that it was not an abuse of discretion to deny, leave to amend?

[00:21:56] Speaker 02:
Are you referring to the smart flash case?

[00:21:58] Speaker 01:
Yeah.

[00:21:58] Speaker 02:
No, I don't think that was an error.

[00:22:00] Speaker 02:
Because in the smart flash, the, I believe it was Apple, was the one who was arguing that Alice had an impact on their timing of bringing the CVM, which they wanted the court to then state the litigation for.

[00:22:13] Speaker 02:
But in that case, they had moved for, say, right at or right after trial had already ended.

[00:22:21] Speaker 02:
And the timing in that case is a significant difference from the timing in this case.

[00:22:25] Speaker 01:
But didn't we say repeatedly in that case that Alice was not enough of a sea change?

[00:22:36] Speaker 02:
My reading of the Smart Flash case is that is applied to, you can't delay something, delay bringing a CDM, delay asserting a defense, and then say that the delay doesn't matter.

[00:22:47] Speaker 02:
And that is not an argument we are making in this case.

[00:22:53] Speaker 04:
I know it was mostly talked about, the discretionary question, but there is also the finding on 101 that I think is part of the appeal here as well.

[00:23:03] Speaker 04:
Answer the criticism that Judge Guilford did not draw all reasonable inferences in favor of the patentee on the summary judgment, and in fact, to the contrary, resolve factual disputes in your favor, which shouldn't have been done.

[00:23:18] Speaker 02:
I respectfully disagree with Mr. Kaufman's analysis of the judge's order.

[00:23:22] Speaker 02:
I don't think the judge ever drew any sort of factual termination.

[00:23:25] Speaker 02:
The judge looked at the claims.

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If you read his order, he says the language of the claims say that the language of the claims afford for zip, but not that.

[00:23:33] Speaker 02:
He does not ever give any weight to anyone's expert report.

[00:23:38] Speaker 02:
They are mentioned as a site to his site to our brief to say, well,

[00:23:45] Speaker 02:
The defendant said this, and the plaintiff says this, and this is where they said it.

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And that's all he said.

[00:23:49] Speaker 02:
There was nothing more to it.

[00:23:51] Speaker 02:
And moreover, you don't even need to look at the expert reports to figure out these are abstract ideas.

[00:23:57] Speaker 01:
So then why did you submit expert reports?

[00:24:01] Speaker 02:
There's a few reasons, Your Honor.

[00:24:02] Speaker 02:
One was, at this point, we wanted to make sure that there were some factual statements

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on the record for summary judgment since depositions, particularly for Mr. Poniak, had not yet occurred.

[00:24:17] Speaker 02:
They have been pushed back.

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And also, they are historical in nature, and had the court felt the need to fight for them and rely on them, he could have, but they are by no means necessary.

[00:24:33] Speaker 02:
It's an added support for finding that the methods

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and the system with the method proposed in the mortgage grader patents were abstract ideas.

[00:24:43] Speaker 02:
Things that could be done by humans, and not only could they be done, clearly on the face of the patents, they even have.

[00:24:52] Speaker 02:
Moreover, Mr. Lieberwick... I'm sorry, they even have?

[00:24:55] Speaker 02:
They even have.

[00:24:55] Speaker 02:
If you look at the mortgage rate tables, which were the subject of the expert reports,

[00:25:01] Speaker 02:
mortgage rate tables allowed one in the newspaper to take a look at the available loans.

[00:25:06] Speaker 03:
You base it on what criteria you have.

[00:25:09] Speaker 03:
This actually picks up on Judge Stark's point.

[00:25:13] Speaker 03:
The Supreme Court, while not defining what an abstract idea, has focused on some at this

[00:25:22] Speaker 03:
subset of activities leading to the creation of contractual obligations.

[00:25:29] Speaker 03:
Bilsky is that, Alice is that.

[00:25:33] Speaker 03:
And the subset is the ones that are really old and familiar.

[00:25:39] Speaker 03:
The have in your expression.

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It's been done historically.

[00:25:46] Speaker 03:
Hence the

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utility of your expert submission of these Washington Post ads with possible mortgage rates and so on.

[00:26:01] Speaker 03:
Why is that not a factual question?

[00:26:04] Speaker 03:
It may be a sufficient answer to say that they had nothing to dispute, that there were things like that.

[00:26:12] Speaker 03:
I guess that's probably the first question.

[00:26:15] Speaker 03:
Did they have evidence to dispute?

[00:26:19] Speaker 03:
what that page in the Washington Post appears to show.

[00:26:23] Speaker 02:
The Mr. Lieberwitz Mortgage Graders expert did not dispute that these rate charts existed or that people use them to find mortgages.

[00:26:31] Speaker 02:
The two things he disputed was one, that the rate charts did not set forth nearly the amount of available loans.

[00:26:38] Speaker 02:
That doesn't matter.

[00:26:39] Speaker 02:
That's not in the claims.

[00:26:40] Speaker 02:
That's not claimed anywhere in the claims.

[00:26:42] Speaker 02:
And his second dispute is that some personal information was not taken into account

[00:26:47] Speaker 02:
in the rate tables, but that can't be true either because the rate tables included the LTV, the loan amount, in either your credit score or a range.

[00:26:57] Speaker 02:
Those are the exact same data points the mortgage grader used to assert that the accused website used personal information for the claim.

[00:27:05] Speaker 02:
They can't argue one thing for infringement and then try to push it to the side for indolentity.

[00:27:10] Speaker 02:
They have to stick with it.

[00:27:12] Speaker 01:
Couldn't there be a distinction here between a circumstance in which something is claimed, an activity is claimed, and all you're doing is saying, and then put it on a computer or use a computer to do this, and a circumstance in which the argument is that the computer is absolutely necessary to the process in order to maintain the anonymity that the process offers?

[00:27:37] Speaker 02:
A computer is not necessary to maintain anonymity, though.

[00:27:40] Speaker 02:
And it's something that Judge Gilford even noted in his order.

[00:27:43] Speaker 02:
You could have someone fill out a form in a room by themselves, fill in the form, leave it on the table, walk away.

[00:27:51] Speaker 02:
Someone else walks in, takes the form, doesn't know who filled it out, goes, compares it to information they've received from a lender.

[00:28:00] Speaker 02:
figure out what matches, what doesn't, put it back in the room, walks out, somebody comes in.

[00:28:04] Speaker 02:
You could do it over the phone without mentioning your name, your ethnicity, your gender, your religion, whatever it was that Mr. Lazzen was trying to avoid discrimination for.

[00:28:17] Speaker 02:
You didn't need to do it on a computer.

[00:28:19] Speaker 02:
Is it faster on a computer?

[00:28:21] Speaker 02:
Sure, of course it's faster on a computer, but that doesn't mean it's not an abstract idea.

[00:28:27] Speaker 01:
I don't think they argued it was faster on the computer.

[00:28:30] Speaker 01:
They argued that it was more protective of the anonymity because it avoids the human biases that would naturally come into play.

[00:28:39] Speaker 02:
It's not the computer that avoids human biases.

[00:28:42] Speaker 02:
It's anonymity that would avoid human biases.

[00:28:45] Speaker 02:
And you can have anonymity without using a computer.

[00:28:50] Speaker 02:
You don't have to meet the person.

[00:28:51] Speaker 02:
You don't have to learn their name.

[00:28:52] Speaker 02:
You could talk to them over the phone.

[00:28:54] Speaker 02:
You could leave a form check.

[00:28:56] Speaker 02:
You don't need a computer to maintain anonymity.

[00:29:23] Speaker ?:
Thank you.

[00:29:24] Speaker ?:
All right.

[00:29:24] Speaker ?:
Thank you.

[00:29:24] Speaker 00:
Thank you, Your Honor.

[00:29:24] Speaker 00:
Briefly to respond.

[00:29:26] Speaker 00:
The last point on waiver that your honor has talked about, SmartFlash.

[00:29:32] Speaker 00:
SmartFlash was similar in the sense that Apple had filed a first set of CBMs that did not raise 101.

[00:29:38] Speaker 00:
These CBMs were granted in part but denied in part.

[00:29:42] Speaker 00:
Not all the relevant claims were involved.

[00:29:44] Speaker 00:
They then, after Alice, waited and then asserted the CBM at a later date.

[00:29:49] Speaker 00:
That is similar in the sense of the delay to the conduct of

[00:29:54] Speaker 00:
first choice, and I like to hear.

[00:29:57] Speaker 01:
Well, in Apple, there was no issue that the, in SmartFlash, that the Apple claims would have any similarity to the Ultramershal claims.

[00:30:07] Speaker 01:
What's your response to your friend's argument that really it was Ultramershal that gave them pause?

[00:30:13] Speaker 00:
Well, Ultramershal was decided after they renewed that Ultramershal

[00:30:20] Speaker 00:
was decided after they submitted their final invalidity contention.

[00:30:24] Speaker 00:
So I'm not sure how this court's rejection of the Ultramershal claims could have impacted it.

[00:30:33] Speaker 01:
No, the argument is the other way around.

[00:30:36] Speaker 01:
It's a failure to reject those claims.

[00:30:38] Speaker 00:
Yeah, at round one.

[00:30:39] Speaker 00:
At round one.

[00:30:40] Speaker 00:
But there are plenty of examples, however, of claims that have been rejected in the business method arena, like dealer track, like cyber source.

[00:30:48] Speaker 00:
like four properties that had been rejected under 101 and that predated Cybersource.

[00:30:56] Speaker 00:
So to say that it wasn't available or that it couldn't have been in good faith asserted I think is somewhat disingenuous given the disarray.

[00:31:09] Speaker 00:
Addressing Judge Stark's point on the summary judgment question,

[00:31:15] Speaker 00:
This court has clearly said it's a question of law as to whether something complies with 101.

[00:31:21] Speaker 00:
At least in Accenture and Arrhythmia they have said factual findings could underlie it.

[00:31:28] Speaker 00:
We suggest that comparison of a claim to an activity is historically a factual inquiry under this court's jurisprudence in the infringement context and that's effectively what was done here.

[00:31:40] Speaker 00:
Evidence was presented

[00:31:42] Speaker 00:
and relied on by them.

[00:31:43] Speaker 00:
Evidence was presented and relied on by us.

[00:31:45] Speaker 00:
The judge doesn't cite it, but he either resolved it without saying it, or he simply came up with his own answer.

[00:31:52] Speaker 01:
What factual dispute that you had is really material to this determination?

[00:31:58] Speaker 00:
I think their facts are provided to support the idea that a person could do this in their head.

[00:32:05] Speaker 00:
Our facts were supported that the point of this was, you know, it's

[00:32:10] Speaker 00:
computer implemented to prevent the steering problem, which is slightly different from discrimination based on race, although that's certainly an issue that can come up with anonymity.

[00:32:22] Speaker 00:
But the steering problem is the mortgage broker gets paid a thousand bucks if I give you just one particular loan and 500 bucks if I give you a loan that is better for you, but not better for me.

[00:32:33] Speaker 00:
And that's the other aspect of the problem that's been trying to be addressed here.

[00:32:38] Speaker 00:
and Mr. Lebowitz's declaration talks about that and that was in dispute and resolutions have been... Did the claims refer to steering?

[00:32:52] Speaker 00:
The claims do not use the word steering in that way.

[00:32:55] Speaker 01:
So you want us to read the specification and read into the claims that limitation?

[00:33:01] Speaker 00:
I think the term reading in is a loaded term, Your Honor.

[00:33:05] Speaker 01:
Okay, construe the claims to contain that limitation?

[00:33:08] Speaker 00:
I think looking at the claim as a whole, it is designed to avoid that kind of conduct.

[00:33:15] Speaker 04:
You write in your brief, and I think you get it from Mr. Lieberwitz's declaration, that humans by their very nature cannot perform these processes in a manner to best serve the consumer.

[00:33:25] Speaker 04:
It seems like an overly broad view, not to say a very negative view of humankind.

[00:33:29] Speaker 04:
But is that something that a reasonable fact finder could actually find on this record, that humans just are not capable of doing that?

[00:33:39] Speaker 00:
I think, well, on summary judgment, I'm not sure that they could find particular facts.

[00:33:44] Speaker 04:
But on summary judgment, even, there has to be a sufficient record that we could say a reasonable fact finder could find for you.

[00:33:51] Speaker 00:
I think that based on Mr. Levois' declaration, a fact finder could find that.

[00:33:58] Speaker 01:
You make a point in your brief about also saying that you thought additional discovery might have altered this 101 analysis.

[00:34:05] Speaker 01:
What would you have looked for?

[00:34:09] Speaker 00:
It's hard to say at this point.

[00:34:11] Speaker 00:
I didn't have anything specific in mind or I would have said it in my brief.

[00:34:15] Speaker 01:
Did you move to extend the discovery deadline?

[00:34:18] Speaker 00:
The only extension of the discovery deadline was we reached agreement with them because some of their fact witnesses were also expert witnesses to consolidate and to not burden their schedules.

[00:34:29] Speaker 00:
We would just depose them once.

[00:34:31] Speaker 00:
because it didn't seem to make sense to depose Mr. Kynak as a fact witness a month later and depose him again as an expert.

[00:34:37] Speaker 00:
But we didn't articulate any specific discovery.

[00:34:44] Speaker 01:
Okay.

[00:34:44] Speaker 01:
All right.

[00:34:44] Speaker 01:
Thank you.

[00:34:45] Speaker 01:
Cases will be submitted.

[00:34:47] Speaker 01:
Court is adjourned.