[00:00:00] Speaker 02:
080, Affinity Labs, Texas vs Amazon.com

[00:00:33] Speaker 02:
We've got a slightly new cast of characters.

[00:00:40] Speaker 02:
Mr. Martin?

[00:00:42] Speaker 00:
Good morning again, Your Honor.

[00:00:53] Speaker 00:
So in the 085 patent, the Avengers acclaimed a new media management system, including a library of personalized content

[00:01:03] Speaker 00:
and a customized user interface so that users could access their content and add to it on the go using an application provided for execution on a wireless device.

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Amazon spends much of its brief hurling the accusation that Affinity's patent is merely aspirational and that Russell White didn't invent anything, leaving the inventions for others to make in the future.

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Now for starters, that attack belongs under sections 102, 103, and 112, not 101.

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But more to the point, it shows that while the claimed media management system may be constructed based largely on existing underlying technology, which is detailed in the spec, it is not an abstraction.

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It is a real system that others did implement much later than 2000, like Amazon did with its cloud music player in 2011.

[00:01:52] Speaker 02:
Let me take you back to where I was in the other case, which is the internet patents case.

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And there we held that the idea of retaining information in the navigation of online forms was abstract.

[00:02:03] Speaker 02:
How is this claim 14 different than that?

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

[00:02:08] Speaker 00:
Again, in that claim, looking at that case and others, there seems to be a category forming around methods of organizing human activity.

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And so there, it's just a matter of how you're storing data in your forms.

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This claim is very different than that.

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This claim has many elements, including you have to have a, where am I here, a login.

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The application has to be stored again, available for the, just like the other case, available for the handheld cellular device.

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It has to provide a customized GUI, customized graphical user interface.

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Some claims include the ability to purchase songs or add songs.

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to your purchase media to add to your library, and then you can access that library remotely.

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So all of those are technical limitations, much narrower than the supposed abstract idea of just playing content on a wireless device that the District Court now is searching.

[00:03:13] Speaker 03:
If I can go back just a little bit, what claims in the 45 patent are actually at issue in this case?

[00:03:22] Speaker 00:
All of them, Your Honor.

[00:03:23] Speaker 03:
You asserted all of the claims?

[00:03:26] Speaker 03:
We are at the pleading stage, so I don't think we have... So you didn't assert any specific claims, and they answered that all of the claims are invalid or unpatentable subject matter under 101?

[00:03:37] Speaker 00:
Yes, that's right.

[00:03:39] Speaker 00:
Okay.

[00:03:39] Speaker 03:
But it seemed odd, because some of the claims obviously don't cover the same technology as others, and some of them are dependent claims in particular, but you say that they're all in play.

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Amazon moved on the pleadings under fall C to invalidate all the claims.

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But you had not previously identified specific claims as being infringed.

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Right.

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We did allege certain things were that Amazon's cloud player does have certain things.

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And they denied.

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They've admitted, for instance, that it has a user interface, but denied that it's the customized user interface as claimed.

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So that is on the pleadings.

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and goes to show that they think they don't infringe.

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They think these claims have meaningful limitations.

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They probably have a secret claim construction or view of claim scope that they want to try out later for non-infringed purposes.

[00:04:31] Speaker 02:
Well, on that point, though, I mean, the district court characterized claim 14 as representative of the other claims.

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Where did she or he get that?

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I mean, did the parties agree?

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Was there any pushback that this was a representative claim?

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We certainly did not agree.

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What happened was we were asked for a representative claim in the earlier case, and it was stipulated that it would be claim one in that case.

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In this case, we were not granted a hearing, and the court simply rendered its decision and focused on claim 14.

[00:05:01] Speaker 02:
But did you make any arguments with respect to any other claim?

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Anything that's different from any other claims than 14, did you make any particular arguments that would go to those claims that would necessarily go to the claim 14?

[00:05:15] Speaker 00:
I think so, Your Honor.

[00:05:17] Speaker 00:
I think the other independent claims have different elements that are not present in claim 14.

[00:05:22] Speaker 02:
No, but did you make, is there anything record site you can give me to win that up, those arguments, where those arguments are contained?

[00:05:29] Speaker 00:
In our briefing, Your Honor?

[00:05:30] Speaker 00:
Yes.

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I mean, in our briefing, I would cite to page, if I can find it.

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I'll get back to you on the exact page.

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But I think we have pointed out there's differences between the independent claims and certainly pointed out the dependent claims.

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And if I jump to that now, it's actually a very good example of what's happened here.

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Dependent claims often get short shrift.

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And in this case, if we look at claim 15, 15 improves on 14 and says where the network-based delivery resource is configured to recognize that the request indicates a need for wireless delivery of the content,

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and then to respond to the request by delivering the portion of the content at a given communication rate.

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Now those are technological limitations.

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They're not abstract and they add to the inventive concept.

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This is particularly true given here there's no evidence of anyone in prior art recognizing the need for wireless delivery and sending at a given rate.

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Now the district court just said, just dumbed this down to, oh this is just sending and receiving information over a network.

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and cited the BuySafe case for that.

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But that's not what this claim says.

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We're entitled to a fair process here that actually, where it's Amazon's burden to prove this, on the pleadings, clearly convincing evidence for underlying fact issues, and we're barely even scratching the surface of these other claims and these other technical limitations, it's not a fair process.

[00:07:05] Speaker 00:
If I move back to step one briefly, it's a lot of the same errors.

[00:07:10] Speaker 00:
This idea of coming up with a broad purpose that ignores the claim elements and then moving on to step two.

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And we've laid this challenge down to Amazon in our briefing as to how this test can ever be applied and not swallow the exception or swallow all of patent law as the Supreme Court has cautioned against.

[00:07:32] Speaker 00:
And they provided no limit on how high a level of generality you can state your abstract idea, and no definition of what makes anything abstract.

[00:07:41] Speaker 00:
The argument just seems to be that, well, if there's any breadth to the claims, somehow a broad idea makes it abstract.

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But I submit, if you claim a system for personal transportation comprising a car, that is extremely broad, no question.

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But it's not abstract.

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The car is not abstract.

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And that's what you have here, I think, a lot of times, is people mistaking breadth for extractness, especially when you ignore the claim elements and devise some super high-level purpose for the claims.

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These claims are, again, they don't fit in any of the prior categories of fundamental economic concepts, math, methods of organizing human activity.

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They're tangible.

[00:08:24] Speaker 00:
Just like transistor radios were tangible, the claim media management system is tangible.

[00:08:31] Speaker 00:
So moving on to step two, the court below again erred by applying a technological arts test and then really erred.

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The biggest error on step two is failing to look at these claims as an ordered combination.

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And so I want to address that in particular.

[00:08:47] Speaker 00:
Individually, you know, the court just again dumbed down some of the claim elements to say GUIs were known without saying the particular interface that's claimed and described was known.

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just uses a shorthand for that.

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But after going through each of the elements individually, the court just concludes for all the independent claims and all the dependent claims that the ordered combination is routine and conventional with no analysis whatsoever.

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And the Bascom case, again, clearly refutes your ability to do that.

[00:09:23] Speaker 00:
The district court has to have done some quasi 103 analysis without explaining what it is as part of 101.

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And you just can't do that, and you certainly can't do it on the pleadings.

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And we have again here, I'd like to point to our expert declaration we put again of Dr. Almorov.

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The magistrate struck that in a footnote saying that there are no factual issues present.

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But what that declaration says is that, well, the point is you just can't use hindsight on this stuff.

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We have to pick a point in time, in the years 2000, and ask what's routine and conventional at that time.

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Now at the time, in that declaration, it says that Diamond Rio was the first portable music player, MP3 player, that was released in just 98.

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It had no graphical user interface, no streaming media at all.

[00:10:13] Speaker 00:
So it was not routine and conventional by 2000.

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And that declaration goes on to explain that the iPod, which still did not have the claimed features in any way, came out after the invention.

[00:10:23] Speaker 00:
and the iTunes store came out after the invention, and the App Store in 2008, and Amazon's cloud music player in 2011.

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And after that analysis, the expert concludes there's no way to say that the order combination here was routine and conventional as of 2000.

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That's in paragraph 14 of the declaration.

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So that question of what's routine and conventional, looking at these claims,

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If you consider that declaration, which I submit you should in a fair process, it should be undisputed that these claims and claim elements and the order combination is not routine and conventional.

[00:11:05] Speaker 00:
Moving to Correemption.

[00:11:06] Speaker 04:
Well, as I tried to step through, it goes through a history lesson.

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of what actually existed before and what actually existed after, and then comes to the conclusion.

[00:11:24] Speaker 00:
And again, I would say if we had a full case and more time and not just two weeks to respond to a motion to dismiss on a plea, we probably would have a longer expert declaration.

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But that's what we have.

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The expert does specifically explain on this one that there were two problems that were solved.

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At the time, you could either

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I mean, you could either stream on your home computer or you could listen to a CD or something else like that in a portable player.

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This allows you to have a remote personalized library that you can access and that you can add to and that you can access using an application that was stored on the server, but you can get it onto your portable device and you can access that library.

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And that's completely, it's a different paradigm than what existed.

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in 2000.

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It is an invented concept.

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But then looking at it from the standpoint of preemption, it does not preempt all ways of listening to music on your portable player.

[00:12:31] Speaker 00:
It doesn't preempt the things I mentioned, using CDs or other removable media or storing it on your device.

[00:12:37] Speaker 00:
It doesn't preempt that.

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Even now, you could still stream audio to a smartphone and not infringe these claims.

[00:12:45] Speaker 00:
Amazon could do that.

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But they don't want to do that.

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They want to set up a system as clean because it's a lot better than just streaming whatever content as opposed to your personal library.

[00:12:55] Speaker 03:
What would be the way that they would set up a downloadable app that would accept data over the internet that would provide content?

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What is the way they would do that that wouldn't in French?

[00:13:16] Speaker 03:
If you were just streaming, if you were just saying, well, you can access... When you say just streaming, I mean, I go to the internet, I have an app on my phone, I go to the internet, I pull up a song and I play the song.

[00:13:28] Speaker 03:
Are you saying that's just streaming, that doesn't infringe?

[00:13:32] Speaker 00:
Yeah, if there's absolutely no customized interface or library of any kind, you're just going to... The internet has a library.

[00:13:40] Speaker 03:
There's a library, let's say, that some service provider has

[00:13:44] Speaker 03:
which I go to and I pull up the song.

[00:13:47] Speaker 03:
Why doesn't that infringe your patent?

[00:13:50] Speaker 00:
Well, you have to... Now we're trying to answer infringement questions.

[00:13:54] Speaker 03:
Well, but it's actually answering a pre-emption question, because if the answer is anything like that would infringe, then you've got a pretty broad patent.

[00:14:03] Speaker 00:
But that's not what I said.

[00:14:04] Speaker 03:
I said... Well, I know it isn't, but I'm asking you to tell me whether my example would infringe.

[00:14:10] Speaker 00:
To the extent I understand it, no, it wouldn't.

[00:14:13] Speaker 00:
It wouldn't meet all the claim elements.

[00:14:14] Speaker 03:
What claim element would be missing?

[00:14:16] Speaker 00:
The customized user interface.

[00:14:19] Speaker 00:
Well, you haven't said that there was ever an application that was stored.

[00:14:22] Speaker 03:
I did say it was an application that was stored.

[00:14:24] Speaker 03:
All right.

[00:14:25] Speaker 00:
And you can get it down on your phone.

[00:14:26] Speaker 03:
Yes.

[00:14:26] Speaker 00:
So you're going to remove that from the inventive concept and focus on the customized user interface that gives you access to a personalized library.

[00:14:35] Speaker 00:
All right.

[00:14:36] Speaker 00:
In your example, you didn't have either the customization or the personalization of the library.

[00:14:41] Speaker 03:
What is a personalized library in your understanding of that term?

[00:14:47] Speaker 00:
I'm sure for claim construction, but it has something to do with accessing your content.

[00:14:53] Speaker 00:
Some of the claims, like I said, allow you to purchase content and add it to your library.

[00:14:59] Speaker 00:
All right.

[00:14:59] Speaker 00:
Thank you, Your Honor.

[00:15:01] Speaker 02:
Thank you.

[00:15:07] Speaker 01:
May I please record Dave Haddon for Amazon.

[00:15:11] Speaker 01:
The recognition that it would be cool to get your favorite music on a portable device is a wish.

[00:15:18] Speaker 01:
It's an aspiration.

[00:15:19] Speaker 01:
It is not an invention.

[00:15:21] Speaker 01:
An invention is a specific technical solution that allows that end to be achieved in some new or better way.

[00:15:29] Speaker 01:
There is no invention in this pattern.

[00:15:32] Speaker 01:
We can look at, beginning with the first sentence of the detailed description, and it's clear what they're claiming is an idea.

[00:15:41] Speaker 05:
And the idea is incredibly broad.

[00:15:43] Speaker 05:
I think the recognition that it would be cool to have access to your favorite music on a portable device probably goes back to Alexander's ragtime band on a wind-up conic wrap.

[00:16:01] Speaker 01:
I agree, Your Honor.

[00:16:03] Speaker 01:
And there is no new technology in this patent that achieves that in any specific way.

[00:16:10] Speaker 01:
The patent itself says, and this is a column two in the first sentence of the detailed description, the conceptual ground work for the present invention includes wirelessly communicating selective information to an electronic device.

[00:16:32] Speaker 01:
They're claiming that is their invention.

[00:16:36] Speaker 01:
But that is just an abstract idea.

[00:16:39] Speaker 01:
an aspiration.

[00:16:41] Speaker 01:
It is something that would be cool to have.

[00:16:43] Speaker 01:
But to have a patent, you have to have a specific way to do it.

[00:16:47] Speaker 01:
And there is no such specific way disclosing this patent.

[00:16:50] Speaker 01:
And it's clear if you look at Figure 1, which purports to show the invention, and all Figure 1 is is four boxes.

[00:16:58] Speaker 01:
And they're described in the most generic, functional way possible.

[00:17:03] Speaker 01:
You have 105, which is a storage device, which could be anything that stores information.

[00:17:10] Speaker 01:
It could be any disk, any memory, any database.

[00:17:13] Speaker 01:
And then you have Digital Engine 101, which is any computer that manages that storage in some digital form.

[00:17:21] Speaker 01:
So that's any server that manages any stored information.

[00:17:25] Speaker 01:
And then connected to Digital Engine is Communication Engine, which is anything that transmits information wirelessly.

[00:17:33] Speaker 01:
The patent says it can be anything.

[00:17:34] Speaker 01:
It can be a satellite system.

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It can be a cellular network.

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can be an AM radio transmitter.

[00:17:40] Speaker 01:
And finally, you have a device that receives it, a handheld device.

[00:17:46] Speaker 01:
Any system that transmits information wirelessly can be described with those four functional boxes.

[00:17:53] Speaker 01:
This is indistinguishable from TLI, right?

[00:17:56] Speaker 01:
TLI is this case in reverse.

[00:17:58] Speaker 01:
In TLI, you have a storage at a server that catalogs and stores digital images.

[00:18:06] Speaker 01:
those digital images are received over a communication network from a handheld device.

[00:18:13] Speaker 01:
It's exactly the same four functional components here.

[00:18:17] Speaker 01:
And they describe any system that communicates information wirelessly.

[00:18:21] Speaker 01:
That is, that's like saying I'm claiming an airplane that flies at speed of sound and I draw a picture with wings and a jet engine.

[00:18:29] Speaker 01:
That doesn't get you there, right?

[00:18:31] Speaker 01:
That is just any generic description of such a system.

[00:18:35] Speaker 01:
And as the court found the DLI, that's an abstract idea.

[00:18:38] Speaker 01:
That's not an invention.

[00:18:41] Speaker 01:
Now, if we go on and look at how the claims describe it, it's no different.

[00:18:47] Speaker 01:
And in their complaint, Affinity Asserted Claims 1 and 14.

[00:18:52] Speaker 03:
And if we look at 1 and 14... This brings us to the question I asked the opposing counsel.

[00:18:58] Speaker 03:
Which claims are actually... 1 and 14 were identified specifically in the complaint.

[00:19:02] Speaker 03:
They say all of them were asserted.

[00:19:05] Speaker 03:
That's wrong.

[00:19:05] Speaker 03:
It's not in the complaint.

[00:19:07] Speaker 01:
The complaint says you infringed the lease claims 1 and 14.

[00:19:11] Speaker 01:
At least?

[00:19:12] Speaker 01:
Yeah.

[00:19:13] Speaker 01:
It was not exhaustive, but those are the only two they identified.

[00:19:17] Speaker 02:
But the district court said that the claim 14 was representative of, I think he said all claims, of the other claims.

[00:19:26] Speaker 01:
It is at least representative of the assertive claims.

[00:19:29] Speaker 01:
1 and 14 are sort of counterparts.

[00:19:32] Speaker 01:
But if you look at 14,

[00:19:34] Speaker 01:
What does it actually describe?

[00:19:36] Speaker 01:
All it describes is a network-based media management system, which is a generic server that provides the conventional functionality, as in TLI, of maintaining and presenting information to a user.

[00:19:49] Speaker 01:
And then there is this collection of instructions, which is any software that allows a user on their device to see and select information.

[00:20:00] Speaker 01:
And then there is this network-based delivery system, which again,

[00:20:04] Speaker 01:
is anything that will find that information and get it to your device.

[00:20:08] Speaker 01:
Those are completely generic functional components.

[00:20:12] Speaker 01:
Those are essentially the four boxes in figure one and nothing more.

[00:20:17] Speaker 01:
Now, with respect to claim 15, which counsel talked about, is somehow adding something.

[00:20:23] Speaker 01:
Well, if we look at what 15 actually says, it says the media system of 14, when the network-based delivery resource is configured

[00:20:33] Speaker 01:
To recognize the request indicates a need for wireless delivery of the content.

[00:20:39] Speaker 01:
If you have a wireless delivery system, that provides nothing.

[00:20:43] Speaker 01:
You know that it needs to be delivered wirelessly.

[00:20:46] Speaker 01:
And then it says, and to respond to the request by delivering the portion of content at a given communication rate.

[00:20:53] Speaker 01:
Any communication is at some rate.

[00:20:55] Speaker 01:
This doesn't limit 14 in any way.

[00:20:59] Speaker 01:
Any wireless communication

[00:21:01] Speaker 01:
of content from the server to the handheld is going to satisfy claim 15.

[00:21:07] Speaker 01:
So there is no how here, as Your Honor asked.

[00:21:13] Speaker 01:
All this patent says is, get music from a server that a user wants to some device using any means you can think of, present or future.

[00:21:23] Speaker 03:
How about the limitation of the means to downloading

[00:21:30] Speaker 03:
remotely on a handheld device.

[00:21:34] Speaker 01:
So there is actually no claim in this patent about downloading the application itself.

[00:21:41] Speaker 03:
The other one specifically is downloadable, but it struck me that the reference, at least in 2015, to the wireless delivery of contents and disks

[00:21:50] Speaker 01:
I think it's talking about downloading the music itself.

[00:21:55] Speaker 03:
As opposed to the app.

[00:21:56] Speaker 01:
As opposed to the app.

[00:21:58] Speaker 01:
But once you're going to download information, what's the difference between downloading music or an application?

[00:22:03] Speaker 03:
But how about the notion that the argument that's made on the other side is that the whole notion of downloading music wirelessly, streaming, whatever, was

[00:22:19] Speaker 03:
never anticipated prior to this patent.

[00:22:21] Speaker 01:
Well, that comes back to the wish, right?

[00:22:24] Speaker 01:
You can't say in the year 2000 that no teenager wished they could have the music they want on their phone, right?

[00:22:32] Speaker 01:
If that isn't enough, those teenagers invented this patent because there's nothing else in this patent.

[00:22:38] Speaker 03:
Right, but we know you don't have to have a circuit diagram of a downloadable app in order to get a patent.

[00:22:46] Speaker 03:
There's a certain degree of

[00:22:48] Speaker 03:
generality that you can use in a patent and then you work out the specific circuits later.

[00:22:54] Speaker 03:
My question is, is there enough here that indicates a departure from just a pure aspirational, I would love to be able to listen to music on my phone, versus giving you some degree of specificity with how you get the

[00:23:12] Speaker 01:
Yeah, there isn't, Your Honor.

[00:23:14] Speaker 01:
And I think the answer is figure one, right?

[00:23:19] Speaker 01:
Figure one, which looks like something I could draw in the back of a napkin, is four boxes.

[00:23:25] Speaker 01:
And they say the minimal things in the most general way

[00:23:29] Speaker 01:
that are required to get music from a server to a device.

[00:23:33] Speaker 03:
Figure one, I agree with you, is not very informative.

[00:23:36] Speaker 03:
But figure four?

[00:23:37] Speaker 01:
Well, let's look at figure four.

[00:23:40] Speaker 01:
So figure four purportedly shows this customized user interface, which affinity has said is the amount of contribution that gets them out of step two.

[00:23:53] Speaker 01:
But what does figure four show?

[00:23:55] Speaker 01:
Figure four shows a standard web page

[00:23:57] Speaker 01:
And the patent describes it as being displayed in a standard browser.

[00:24:03] Speaker 01:
And what is the customizable user interface here?

[00:24:06] Speaker 01:
Well, there's a button that says user-selected playlist.

[00:24:10] Speaker 01:
So if the idea is that you could pick your favorite songs and then somehow get a list of them, that is not a technological solution to anything.

[00:24:24] Speaker 01:
That is just saying,

[00:24:26] Speaker 01:
At some point, I go on the website, I select or buy the songs I want, and later they'll show them to me again.

[00:24:34] Speaker 01:
And I'm taking that from figure four, because there's no actual description and specification of anything else.

[00:24:43] Speaker 01:
The customized user interface is just that, those two words.

[00:24:47] Speaker 01:
There's no description of how it works.

[00:24:49] Speaker 01:
There's no description of how it's customized.

[00:24:54] Speaker 01:
Your Honor, and it mentioned Internet patents, right?

[00:24:57] Speaker 01:
This is Internet patents or intellectual ventures, right?

[00:25:01] Speaker 01:
You try to claim an interactive, customized user interface that somehow gives you the information you want.

[00:25:08] Speaker 01:
That was the claim in intellectual ventures.

[00:25:10] Speaker 01:
But there was no implementation of how that worked.

[00:25:13] Speaker 01:
There was no description of how this software brain, as it was called in that case, selected the information for you.

[00:25:20] Speaker 01:
And there was no description in this patent at all.

[00:25:23] Speaker 01:
Where is this one figure?

[00:25:25] Speaker 03:
If we aren't wandering, as Mr. Morton suggested, over into the territory that belongs to section 112.

[00:25:32] Speaker 01:
I don't think so, Your Honor, because I think you're, and we could quote you in our brief, your observation is correct.

[00:25:39] Speaker 01:
A patent is to an abstract idea where you are claiming the problem and just saying, I solved it.

[00:25:47] Speaker 01:
And that's what they're doing here.

[00:25:48] Speaker 01:
They're saying, general problem, it'd be cool to have

[00:25:52] Speaker 01:
personalized music on a device.

[00:25:55] Speaker 01:
Here, I solved it.

[00:25:57] Speaker 01:
There's no description of how this customized user interface is implemented, anything novel or new about it.

[00:26:05] Speaker 01:
They show a standard web page with a button that says user selected playlist.

[00:26:12] Speaker 01:
That is just claiming push this button, get your favorite music on your device.

[00:26:18] Speaker 01:
That is nothing more than the teenagers were doing in 99.

[00:26:22] Speaker 01:
And the court has already held in both internet patents and intellectual ventures that just saying you're going to have a customized user interface or an intelligent user interface is not an inventive concept.

[00:26:39] Speaker 01:
It has to at least be some implementation that describes how that software works to do whatever customization your client

[00:26:49] Speaker 01:
And it's not here.

[00:26:51] Speaker 01:
And if we go to preemption, and I think that kind of puts this along with figure one, this patent context.

[00:27:02] Speaker 01:
What is the proportionality?

[00:27:05] Speaker 01:
The proportionality, what did we get as the public?

[00:27:08] Speaker 01:
What is added to our store of knowledge from this patent compared with what they're trying to take from the public?

[00:27:15] Speaker 01:
I read this patent, I see nothing that is added to our store of knowledge.

[00:27:19] Speaker 01:
But what are they trying to take?

[00:27:21] Speaker 01:
Every way that you can stream media, whether it's movies or video or anything else, to a wireless device that's selected by a user.

[00:27:31] Speaker 03:
Well, that brings us to my exchange with Mr. Morton, in which he was saying that, no, this does not take anything approaching as broad a swath of the... But if you read their brief, what do they say?

[00:27:46] Speaker 01:
They say you can still have a transistor radio and you can still go back 20 years and carry around your CD collection and a portable CD player.

[00:27:56] Speaker 01:
That's what they say you're left with.

[00:27:58] Speaker 01:
So if you read their papers, they're pretty clear that what they're taking away is every way to stream content to a wireless device.

[00:28:08] Speaker 01:
And this notion of whether it's personalized content or not, it's always going to be personalized content.

[00:28:14] Speaker 01:
You have some list of songs that you have rights to, that you have purchased.

[00:28:19] Speaker 01:
If you can see that list on a device and select from it, they're going to say that you are using their customized user interface.

[00:28:29] Speaker 01:
That's what they're accusing.

[00:28:31] Speaker 01:
So to say that, I don't know, if you got random music played to you, maybe it wouldn't be, but that's not clear either.

[00:28:39] Speaker 01:
Because if you select a channel, they'll say that is

[00:28:42] Speaker 01:
a customized user interface.

[00:28:44] Speaker 03:
Mr. Morton mentioned the personalized list.

[00:28:48] Speaker 01:
Right.

[00:28:49] Speaker 01:
But all that is is the list of songs you have rights to play.

[00:28:52] Speaker 03:
Is that what that means?

[00:28:54] Speaker 01:
OK.

[00:28:57] Speaker 01:
So let me just, on the last point, affinity council raised Bascom.

[00:29:04] Speaker 01:
Bascom is an app lawyer, right?

[00:29:06] Speaker 01:
The issue in Bascom was there was a new way to filter internet content

[00:29:12] Speaker 01:
at the ISP by associating the user's IP address with an account with a specialized filter.

[00:29:20] Speaker 01:
There is no specific solution like that described in this pattern.

[00:29:25] Speaker 01:
The components that you see on figure one are arranged in the most generic way possible.

[00:29:33] Speaker 01:
You have information, it's stored in storage, it's managed by a server, it's communicated by a wireless network,

[00:29:41] Speaker 01:
to a handheld device.

[00:29:42] Speaker 01:
That is the arrangement of elements, both in the claims and in the spec, and is completely conventional.

[00:29:48] Speaker 01:
It is the exact same components arranged in exactly the same way as in TLI or CloudSatchel or many other cases that this court has ruled are completely abstract and don't get through step two.

[00:30:07] Speaker 01:
Unless there's anything else, I will sit down.

[00:30:09] Speaker 01:
Thank you.

[00:30:15] Speaker 00:
Good morning for the fourth time, Your Honors.

[00:30:18] Speaker 00:
First, on step one, again, Amazon has provided no limit to what can be found as an abstraction.

[00:30:24] Speaker 00:
They claim now it's, if I just say a problem and say I solved it, it's abstract.

[00:30:30] Speaker 00:
That would be no limit whatsoever and you'd have abstract ideas.

[00:30:34] Speaker 00:
That's not what the Supreme Court intended.

[00:30:36] Speaker 00:
On step two, they again double down on the idea that this patent is merely aspirational.

[00:30:41] Speaker 00:
I'd ask the Court, how can something that's aspirational

[00:30:45] Speaker 00:
be routine and conventional as of 2000.

[00:30:48] Speaker 00:
The answer is it can't.

[00:30:50] Speaker 00:
Finally, we're here again on a Rule 12 motion.

[00:30:54] Speaker 00:
And it does feel to my client like an ambush, like there are so many issues that haven't been addressed.

[00:30:59] Speaker 00:
And I believe that district courts need guidance, that they do not need to hurl themselves at the imponderable question of what is or is not an abstract idea outside of what the Supreme Court has given as definable categories at the Rule 12 stage.

[00:31:14] Speaker 00:
It can be decided, along with all the other issues, in a fair process, where it will know their non-infringement positions later in the case.

[00:31:22] Speaker 02:
This isn't the first case where there's been a 12b6 in play.

[00:31:26] Speaker 02:
Ultramershal was one of those cases, correct?

[00:31:29] Speaker 00:
Certainly not.

[00:31:30] Speaker 00:
Certainly not the first case.

[00:31:32] Speaker 00:
I do submit that Ultramershal in the earlier cases had one point right.

[00:31:35] Speaker 00:
It very clearly said that this issue is going to involve underlying factual issues that need to be proven by clear and convincing evidence.

[00:31:44] Speaker 00:
and ordinarily should not be addressed on Rule 12.

[00:31:47] Speaker 00:
If you read the Electoral Commercial 3 decision, it simply does not discuss the issue, doesn't mention it, and doesn't provide guidance to the Court for when it's appropriate.

[00:31:55] Speaker 03:
But there are a number of other, either 12C or 12B6, decisions that this Court has upheld, has affirmed.

[00:32:05] Speaker 00:
There certainly are, Your Honor.

[00:32:06] Speaker 00:
I'm not going to contest the fact that there are other cases.

[00:32:09] Speaker 00:
I don't think the question has been answered when it's appropriate.

[00:32:12] Speaker 00:
And some of those other cases involved

[00:32:14] Speaker 00:
either something clear in the specification or involved admissions of counsel.

[00:32:19] Speaker 00:
Content extraction involved admissions of counsel or was routine and conventional.

[00:32:24] Speaker 00:
I'm certainly not admitting here today that the individual elements or the order combinations were routine and conventional in 2000.

[00:32:30] Speaker 03:
I don't think you can take anything from this argument.

[00:32:32] Speaker 03:
We'll take that.

[00:32:32] Speaker 00:
Yes, you're right.

[00:32:33] Speaker 03:
Thank you.

[00:32:34] Speaker 03:
On that note, thank you.

[00:32:35] Speaker 03:
We thank both counsel for the cases.