[00:00:00] Speaker 02:
computers versus our tech industry.

[00:00:44] Speaker 01:
Mr. Edmonds, please proceed.

[00:00:47] Speaker 05:
Thank you, Your Honor.

[00:00:48] Speaker 05:
May it please the Court, John Edmonds on behalf of the Appellant Clear with Computers, LLC.

[00:00:55] Speaker 05:
The things I'd first like to focus the Court on, because I know every appeal of a 101 motion gets into abstract idea and inventive step or inventive or meaningful limitations.

[00:01:08] Speaker 05:
What I'd like to talk upon first is some errors in district court's opinion that compel reversal

[00:01:14] Speaker 05:
over and above those disagreements I just mentioned.

[00:01:19] Speaker 05:
In first part, the district court, in its order, said it considered individually that the elements didn't add enough for the second prong of Alice and Mayo.

[00:01:29] Speaker 05:
That's not a proper analysis.

[00:01:32] Speaker 05:
Under Alice and Mayo, the court should have considered those elements.

[00:01:35] Speaker 05:
It should have considered the claim as a whole.

[00:01:37] Speaker 05:
And I'm quoting from A-10.

[00:01:40] Speaker 05:
From the courts direct from the court's order.

[00:01:42] Speaker 05:
It's considered individually.

[00:01:43] Speaker 05:
They do not add enough That's sufficient error.

[00:01:47] Speaker 05:
We believe for reversal right there secondly and it's important to note that the The procedural stage of this was on rule 12 the motion to dismiss.

[00:01:57] Speaker 00:
We've had several of those right where we've done applications of

[00:02:02] Speaker 00:
the new ALICE or even pre-ALICE analysis on motions to dismiss.

[00:02:08] Speaker 00:
And a number of times, is that right, that we've found that the claims are clear enough and that it's proper to do under 12B?

[00:02:20] Speaker 05:
This court has done that in the past.

[00:02:22] Speaker 05:
What I would say that one thing that distinguishes this case from all those cases is that the 739 patent was upheld

[00:02:30] Speaker 05:
in front of the same court or in the same district as being not obvious by a jury, upheld on Jamal.

[00:02:37] Speaker 05:
It was affirmed by this court.

[00:02:39] Speaker 05:
Sir was denied by the Supreme Court.

[00:02:41] Speaker 04:
Was that before Alice?

[00:02:44] Speaker 05:
Was that before Alice?

[00:02:48] Speaker 05:
I just don't recall.

[00:02:49] Speaker 05:
It was affirmed.

[00:02:51] Speaker 05:
I don't believe it was a materially different analysis.

[00:02:55] Speaker 04:
But you think Alice didn't change the analysis that was used at this court on 101?

[00:03:03] Speaker 05:
Alice definitely can change the analysis.

[00:03:05] Speaker 05:
But the point I'm making is that the court, this is on a 12b motion to where the court accepts, is required to accept our version of the facts.

[00:03:14] Speaker 05:
And the court considered but didn't give proper, well it mentioned this finding, but it just didn't give it any weight.

[00:03:20] Speaker 05:
And that's improper under 12b.

[00:03:23] Speaker 05:
The history of the 739 patent is a factor that itself should compel reversal on 12b.

[00:03:32] Speaker 02:
If the court wants to consider the facts... Okay, you're saying a lot of things, but I don't really understand what you're saying, so let me give it a try.

[00:03:39] Speaker 02:
Okay.

[00:03:39] Speaker 02:
And you'll tell me if I've got it.

[00:03:41] Speaker 02:
You're saying the 739 patent already withstood an entire validity challenge prior art based, 102, 103 type thing, all the way through appeal, jury verdict,

[00:03:53] Speaker 02:
all the way through Jamal appeal, right?

[00:03:55] Speaker 02:
Yes.

[00:03:56] Speaker 02:
And so what you're saying is, to the extent of the second prong of Alice, in order to render something unpatentable, directed to unpatentable subject matter, ineligible matter, it has to not only be an abstract idea, but have no inventive step.

[00:04:08] Speaker 02:
And you're saying there is a strong factual predicate already here for the fact that this does have an inventive step because it withstood all of these

[00:04:17] Speaker 02:
challenges on 102 and 103 already.

[00:04:20] Speaker 05:
Invinistep or something more, however you want to phrase it, but yes.

[00:04:23] Speaker 02:
That's your argument, right?

[00:04:24] Speaker 02:
That is an argument, yes.

[00:04:25] Speaker 05:
You just want to make sure.

[00:04:26] Speaker 05:
And what?

[00:04:27] Speaker 05:
Yes, that is my argument I'm making now.

[00:04:28] Speaker 02:
Thank you.

[00:04:29] Speaker 02:
All right.

[00:04:29] Speaker 02:
Everybody fights me, even when my questions are friendly.

[00:04:31] Speaker 02:
I don't understand.

[00:04:32] Speaker 05:
Thank you, sorry.

[00:04:33] Speaker 05:
No, but it's in the context of that this is on a motion to dismiss, too, when the facts are viewed most, should be viewed most favorably, to clear with computers.

[00:04:42] Speaker 05:
Third, the court's opinion is really devoid of factual findings that would support its conclusions.

[00:04:50] Speaker 05:
And we think that that's error that really precludes a meaningful review by this court.

[00:04:53] Speaker 05:
There are some conclusions about conventional and conclusions about other things, but the facts aren't there to support them.

[00:05:02] Speaker 05:
I think some good evidence of that is that if you look, we pointed out that in the brief that was filed by appellees, they tried to bring in some new evidence from an article and from a book

[00:05:12] Speaker 05:
that weren't even before the district court to try to bolster that because the facts simply just aren't there.

[00:05:19] Speaker 05:
In addition, the district court didn't address the issue of preemption, which we think is just error and also compels reversal.

[00:05:27] Speaker 05:
It was raised by Clearworth Computers.

[00:05:30] Speaker 05:
In its briefing and argument, it just wasn't addressed in the court's opinion.

[00:05:35] Speaker 05:
And we believe under Mayo and Allison, all the decisions that are in play today

[00:05:40] Speaker 05:
that you have to address preemption, and that must be addressed.

[00:05:45] Speaker 05:
And that compels reversal as well.

[00:05:47] Speaker 05:
And in addition, the district court didn't address the transformation prong of the machine or transformation test.

[00:05:53] Speaker 05:
It just didn't do it.

[00:05:55] Speaker 05:
The appellee said it was waived.

[00:05:56] Speaker 02:
We pointed out.

[00:05:57] Speaker 02:
Why don't you try and find fault with what the district court did do?

[00:06:00] Speaker 05:
OK, those are things we think that compel error.

[00:06:04] Speaker 05:
Because the problem is the district court didn't give proper consideration because it ignored so many things.

[00:06:10] Speaker 05:
It didn't apply the test correctly.

[00:06:12] Speaker 05:
But in terms of on the issue of an abstract idea, the district court gave an overgeneralized notion that was erroneous when it said creating a customized sales proposal for a customer.

[00:06:24] Speaker 05:
That just ignores the gist, especially of claim one of the 739 patent.

[00:06:30] Speaker 05:
We have elements like automatically selecting, integrating into a single composite visual output, and the involvement of an active database and a static database.

[00:06:42] Speaker 05:
The court just didn't give proper consideration of the term as a whole when it came up with this overbroad notion of an abstract idea, which inevitably led it down an erroneous path to finding these claims invalid under 101.

[00:06:57] Speaker 05:
Also, the court's characterization, it seems more directed at claim 61 of the 776 patent and really seems to ignore claim 1 of the 739 patent, which has more meat to it than its sister claim.

[00:07:16] Speaker 05:
As far as the second part of Mayo in terms of something more, again, the court

[00:07:26] Speaker 05:
just seems to have ignored or not properly considered the meaningful limitations in these claims.

[00:07:35] Speaker 05:
And in part, it seems to be based upon a court's just acceptance of the arguments of the appellees, which were just arguments.

[00:07:45] Speaker 05:
There was no evidence to support them that this was all conventional or somehow prevalent when it just simply was not.

[00:07:52] Speaker 05:
The problem that was meant to be solved here was,

[00:07:55] Speaker 05:
that there were generic proposals.

[00:07:59] Speaker 05:
And generic proposals are one size fits all.

[00:08:02] Speaker 05:
And they don't really please anyone.

[00:08:07] Speaker 05:
They're not very effective.

[00:08:09] Speaker 05:
This is a 1992 priority date for this patent.

[00:08:13] Speaker 05:
And I think that's something the court has to consider when you consider what's conventional in 1992 versus what's conventional in 2016.

[00:08:21] Speaker 05:
And the best the district court could point to was,

[00:08:25] Speaker 05:
a file of static pictures and a Rolodex.

[00:08:28] Speaker 05:
And that's very far afield from the claimed invention here and these meaningful limitations that just simply were not given proper consideration by the court.

[00:08:40] Speaker 05:
With respect to the 739 patent, the automatically selecting is something that distinguishes, is inventive.

[00:08:51] Speaker 05:
The single composite visual output is something that's inventive.

[00:08:54] Speaker 05:
And again, the active and static databases and the dynamic building of the template and dynamic filling into the template are all things that are inventive that just simply weren't, they didn't make it into the district court statement of abstract idea and they just simply weren't properly considered by the district court when it came to step two of ALIS.

[00:09:20] Speaker 05:
Again, one problem is the district court isn't citing evidence to support any findings.

[00:09:27] Speaker 05:
And so this court is somewhat at a loss to find something to affirm it on.

[00:09:31] Speaker 05:
It just concludes something as well understood a routine, but the only thing that's cited again is static pictures.

[00:09:36] Speaker 05:
And as far as overcoming this problem in the prior arc, by automatically selecting these elements in response to customer questions and putting them into a single composite outlook,

[00:09:50] Speaker 05:
from these active and static databases and from dynamically building the template and dynamically building the proposal, now you have a tailored presentation that's much more effective for the customer.

[00:10:02] Speaker 05:
This isn't a situation where before computers, we just added a computer to it because computers were around in 1992.

[00:10:11] Speaker 05:
This is simply something that wasn't done until it was invented by

[00:10:15] Speaker 05:
by the patentee.

[00:10:18] Speaker 04:
Are you saying that in the entire history that there weren't people out there that were sitting down with customers for anything and saying, what do you want?

[00:10:30] Speaker 04:
And then going back and coming back with a proposal that was tailored to those specific answered questions.

[00:10:39] Speaker 05:
The situation the district court saw was that you take

[00:10:44] Speaker 05:
you'd select from generic pictures.

[00:10:47] Speaker 05:
What I'm talking about, especially with respect to claim one of seven, three, nine, is that the automatic selecting and this single composite visual output is not something that we see in the prior art.

[00:11:00] Speaker 05:
And this dynamic template and dynamic building are not something that we see in the prior art that just wasn't done.

[00:11:06] Speaker 05:
Now, somebody might say, we're going to take a lot of effort, and we're just going to go get a model, and we're going to take a picture out in the setting they like, and then we're going to do it that way.

[00:11:15] Speaker 05:
But that just simply wasn't done, because it's just simply not practical to do it.

[00:11:18] Speaker 05:
And it wasn't sensible to do it, even though we had computers.

[00:11:22] Speaker 05:
Until this invention that came up with this.

[00:11:26] Speaker 04:
But this is your problem, is the two words you just used, that it wasn't sensible and wasn't practical.

[00:11:33] Speaker 04:
Just because a computer makes something now doable because of computing speed doesn't somehow transform what's abstract into an otherwise patent-eligible idea.

[00:11:42] Speaker 05:
But it's not just speed.

[00:11:44] Speaker 05:
It's not just speed.

[00:11:45] Speaker 05:
This is a transformative claim in that it's doing something very different.

[00:11:52] Speaker 05:
It is making an automatic selection, and it's doing it into a single composite visual output from these active and static databases.

[00:12:01] Speaker 05:
That just simply is not something that even in the prior art, you just can't do those things without a computer.

[00:12:09] Speaker 05:
You can't accomplish this kind of customization without a computer.

[00:12:12] Speaker 05:
That's our position.

[00:12:14] Speaker 02:
Okay, well, let's save the rest of your time for about all.

[00:12:16] Speaker 02:
Thank you.

[00:12:18] Speaker 02:
Is it Ms.

[00:12:18] Speaker 02:
Doane?

[00:12:19] Speaker 02:
Ms.

[00:12:20] Speaker 02:
Hanley?

[00:12:20] Speaker 03:
Yeah.

[00:12:21] Speaker 03:
Please proceed.

[00:12:21] Speaker 03:
Good morning.

[00:12:22] Speaker 03:
May I please support?

[00:12:24] Speaker 03:
Jennifer Doane for the Appalachians, Altech, Bad Boy, Volvo, and the Men's Warehouse.

[00:12:29] Speaker 03:
This is a simple case.

[00:12:30] Speaker 03:
This case involves a fundamental business practice of creating customized sales proposals.

[00:12:37] Speaker 03:
It is equivalent to target marketing.

[00:12:39] Speaker 03:
And this court should affirm the district court's minute order of file judgment for three reasons.

[00:12:44] Speaker 03:
One, it's because it is an abstract idea.

[00:12:46] Speaker 03:
The second is because the limitations do not transform this case into some type of patent eligible subject matter.

[00:12:54] Speaker 03:
And then three, what the plans are attempting to do here is to preempt the entire customized customer proposal on computers.

[00:13:03] Speaker 03:
And that's what they're trying to take over the entire market with that.

[00:13:05] Speaker 00:
And that should not be there.

[00:13:06] Speaker 00:
Can you explain?

[00:13:08] Speaker 00:
I just don't understand.

[00:13:09] Speaker 00:
So the dynamic template?

[00:13:14] Speaker 00:
Yes, your honor.

[00:13:14] Speaker 00:
What does that mean?

[00:13:15] Speaker 00:
What's it doing in the claims?

[00:13:17] Speaker 03:
Well, the dynamic template is there's a template that provides an environment and then there's a picture that goes on top of it.

[00:13:24] Speaker 00:
So in response to the... So you want to get a car and you want to show it outside the sports stadium or on the beach?

[00:13:33] Speaker 03:
Sure, on the beach, on the sports stadium, on the mountain, in the city.

[00:13:37] Speaker 03:
You pick an environment, you pick a picture, and then you have text with it.

[00:13:41] Speaker 03:
So part of this is it's all done dynamically and automatically.

[00:13:47] Speaker 03:
And there is a database with respect to claim number one of the 739, which is static, and there's a database that is active.

[00:13:56] Speaker 03:
The active database can contain, for example, customer information, your address, your phone number, things that change.

[00:14:02] Speaker 03:
The static database contains pictures that are static pictures.

[00:14:06] Speaker 03:
So we have a mountain, a beach, and a city.

[00:14:08] Speaker 03:
We have a black car and a blue car.

[00:14:10] Speaker 03:
Or we may have the same dress and the same dress appears in blue or appears in polka dots.

[00:14:16] Speaker 03:
Or we have men's shoes or we have men's jackets and you have different colors of men's jackets.

[00:14:20] Speaker 03:
But the patent, both claims of the two patents basically say that there is a series of questions that the conjurer, the decision maker, the series of questions asked of the customer.

[00:14:32] Speaker 03:
And the customer answers those series of questions and then based upon only one answer to those questions.

[00:14:38] Speaker 03:
One answer.

[00:14:39] Speaker 03:
There is a picture, an environmental picture returned.

[00:14:42] Speaker 03:
There is a picture on top of the environment that returned.

[00:14:46] Speaker 03:
And then there is a text message that is returned.

[00:14:48] Speaker 03:
So you could only answer one binary question of, for example, the argument we made before the district court was, are you green friendly?

[00:15:00] Speaker 03:
Do you want to be able to return a Prius on a customer proposal for you, as opposed to a Ford F-150?

[00:15:07] Speaker 03:
Or it could be that, do you like a blue suit or do you like a gray suit better?

[00:15:12] Speaker 03:
If you say gray, I'll show you in gray.

[00:15:14] Speaker 03:
Graduating from high school, I'll show you in gray.

[00:15:17] Speaker 03:
Graduating from law school, I'll show you in gray suit at a wedding and different environments in the background, each of which has the customer name on the front.

[00:15:24] Speaker 03:
There's various iterations of this.

[00:15:25] Speaker 03:
This pattern is no more than

[00:15:28] Speaker 03:
equivalent to a Chinese menu where you may pick from column A one dish, column A changes daily, column B and column C are static every day, you pick one dish from each, I put it on a plate and I give it to you.

[00:15:41] Speaker 03:
That's exactly what this patent is calling for.

[00:15:43] Speaker 03:
And because of this abstract idea of customer sales proposals,

[00:15:47] Speaker 03:
The limitations do not make it into an inventive subject matter.

[00:15:51] Speaker 03:
And this is the classic Alice case where you have an abstract matter on a computer.

[00:15:56] Speaker 03:
There's nothing about these two claims that say somehow what makes it different on a computer.

[00:16:01] Speaker 03:
They just say, quote, electronically, quote, dynamically, quote, automatically, and that's it.

[00:16:08] Speaker 03:
And so because of that, Your Honor, it falls under Alice and should be held invalid under 35 U.S.C.

[00:16:14] Speaker 03:
101.

[00:16:16] Speaker 03:
I can respond to Mr. Edmonds' questions if the court has any further questions on those with respect to 12b.

[00:16:23] Speaker 03:
The court has decided this issue multiple times here now with respect to ultramarital content extraction and internet patents.

[00:16:31] Speaker 03:
This was decided almost a year after Alice, it looks like, the clear with computers verdict

[00:16:37] Speaker 03:
against Hyundai came down in February of 2013, and then the Supreme Court came out with the Alice opinion in June of 2014.

[00:16:45] Speaker 00:
So the law has... The Hyundai case, that's the jury case that upheld it against non-101 challenges?

[00:16:51] Speaker 03:
Yes, Your Honor.

[00:16:52] Speaker 03:
101 was not raised there.

[00:16:54] Speaker 03:
It was 102 for anticipatory prior art and 103, a combination for obviousness.

[00:16:58] Speaker 03:
Those were argued before this court.

[00:17:00] Speaker 03:
As was 112 written description, 101 was never raised.

[00:17:04] Speaker 03:
And as this court knows,

[00:17:06] Speaker 03:
You know, every defendant has an opportunity to raise invalid again.

[00:17:10] Speaker 03:
So just because there was a piece of 102 art, say, argued in anticipation with respect to that jury, doesn't mean in the next jury with a different defendant you couldn't raise another piece of prior art with 102.

[00:17:23] Speaker 00:
Why does that evidence or that verdict not tend to suggest that if you actually wanted to find

[00:17:35] Speaker 00:
Evidence in the world of what people were doing, which seems at least relevant to pieces of the Alice analysis, you might not be able to find it to cover this claim.

[00:17:50] Speaker 03:
Well, the myriad court, as you know, Your Honor, basically said you shouldn't read in 101 into the 102 and 103 analysis.

[00:17:57] Speaker 03:
They are different defenses.

[00:17:59] Speaker 00:
The Mayo court.

[00:18:01] Speaker 03:
I'm sorry, the Mayo court, the myriad genetics.

[00:18:04] Speaker 03:
Yes, Your Honor.

[00:18:05] Speaker 03:
And it's a totally different question.

[00:18:06] Speaker 00:
Well, totally different is different.

[00:18:08] Speaker 00:
I mean, I thought that Mayo said,

[00:18:11] Speaker 00:
These actually do have some overlap, but we're not going to drain 101 of content just because there's a fair bit of overlap with 102 and 103 and maybe even 112.

[00:18:25] Speaker 00:
There nevertheless remains a function.

[00:18:27] Speaker 00:
But the conventionality aspect of 101 has to do with what people were doing in the world.

[00:18:39] Speaker 00:
which is also highly relevant to 102 and 103.

[00:18:42] Speaker 00:
So, I mean, here's, this was Hudnay, I guess, was the defendant.

[00:18:46] Speaker 00:
Is that right?

[00:18:46] Speaker 00:
In the other case?

[00:18:47] Speaker 00:
It was a defendant.

[00:18:48] Speaker 00:
Right.

[00:18:48] Speaker 00:
And so they had a pretty strong incentive to go out and find prior art that says people were doing this or they were doing things sufficiently close that when you put it together, it's obvious to do this and couldn't do it.

[00:19:02] Speaker 03:
And they could.

[00:19:03] Speaker 03:
And we don't know from the jury verdict exactly

[00:19:05] Speaker 03:
was a certain element missing that the claims were raised.

[00:19:10] Speaker 03:
There was the 739 patent, and there was another patent raised in that case.

[00:19:13] Speaker 03:
It's not before us here today.

[00:19:15] Speaker 03:
But we don't know why the jury made the decision.

[00:19:17] Speaker 03:
All we know is that the jury rejected the implementing analysis, and whether certain particular elements of the claims were raised were not found in the prior art, or whether the combination the jury just didn't found persuasive, or perhaps they didn't like the lawyers on the team, and they really liked the plaintiff.

[00:19:30] Speaker 03:
As you know, juries make decisions on lots of different reasons.

[00:19:33] Speaker 03:
But we don't have that analysis here before us.

[00:19:35] Speaker 03:
What we do know is the jury did not decide, nor was it before it.

[00:19:39] Speaker 00:
We upheld that, right?

[00:19:40] Speaker 00:
You did uphold it.

[00:19:41] Speaker 00:
We probably didn't uphold it on the ground that that lawyer was worth disliking.

[00:19:45] Speaker 00:
I suspect we looked at some.

[00:19:48] Speaker 00:
some sufficient basis of evidence.

[00:19:51] Speaker 03:
I would hope it would be based on the law and the evidence, Your Honor.

[00:19:53] Speaker 03:
But what we do know is that that jury did not decide whether these claims were abstract or not.

[00:19:58] Speaker 03:
And we do know that the law has substantially changed since then.

[00:20:01] Speaker 03:
And so what we do know is that we're entitled to bring a one-on-one challenge early in the case to look at, is this an abstract idea?

[00:20:08] Speaker 03:
Here we think it's undisputed based upon Alice Mayo and Bilski and the other precedent set by this court.

[00:20:16] Speaker 03:
that this is an abstract idea of target marketing, creating customized proposals.

[00:20:21] Speaker 03:
And based upon the precedence of this court, there is no limitation in these patents that has not already been decided by this court as just not invoking an inventive subject matter.

[00:20:33] Speaker 03:
And because of that, Your Honor, we ask that this court affirm the decision of the district court.

[00:20:39] Speaker 01:
Okay, thank you.

[00:20:40] Speaker 01:
Thank you.

[00:20:40] Speaker 01:
Mr. Edmonds, you have some rebuttal time.

[00:20:49] Speaker 05:
Thank you, Your Honor.

[00:20:51] Speaker 05:
First, to Judge Toronto's question about dynamic templates, I'd refer the court to the 739 patent at column 5, lines 24 through, it's really that paragraph, through lines 45.

[00:21:08] Speaker 05:
But the specification talks about picture building blocks used.

[00:21:14] Speaker 05:
And because you have this combination of pictures

[00:21:17] Speaker 05:
for a finished template, they don't have to be pre-stored because the system can dynamically build the template.

[00:21:22] Speaker 05:
And that's something different.

[00:21:24] Speaker 05:
What counsel was just describing was a customized proposal that doesn't have this dynamic template.

[00:21:35] Speaker 05:
There really is.

[00:21:35] Speaker 05:
And that's the thing is the district court's opinion, and even the appellees in this case, seem to continue to focus on

[00:21:41] Speaker 05:
the one patent that ignoring the 739 claim one, which really does, as I mentioned, has other limitations that should have been considered by the court.

[00:21:56] Speaker 05:
The counsel said that the plaintiff's trying to preempt certain things.

[00:22:01] Speaker 05:
Well, one of the problems was the district court did not address preemption, and it should have.

[00:22:08] Speaker 05:
With respect to the CWC case,

[00:22:10] Speaker 05:
The discussion I heard really suggests, if anything, reversal, because there are some suggestions that maybe some more prior art could be brought up in the future.

[00:22:19] Speaker 05:
Maybe the prior jury didn't get the best prior art.

[00:22:22] Speaker 05:
But the bottom line is that these are factual issues.

[00:22:28] Speaker 05:
And the overlap is substantial, very substantial, especially the 103.

[00:22:35] Speaker 05:
and now the 101 issues.

[00:22:36] Speaker 05:
101 wasn't raised in the Hyundai case, but 103 was, and that's what the overlap is.

[00:22:41] Speaker 05:
And 103 hasn't changed.

[00:22:43] Speaker 05:
And because of that overlap, counsel says, well, we're entitled to early resolution, but not so early that material facts that are out there are just disregarded by the court under 12b motion.

[00:22:55] Speaker 05:
That's one of the things that's inappropriate here.

[00:23:00] Speaker 05:
So there was talk about it's a fundamental business practice.

[00:23:05] Speaker 05:
There are no facts in the district court's opinion to support that assertion.

[00:23:10] Speaker 05:
If anything, the 103 ruling that was affirmed in the Hyundai case debunks that assertion.

[00:23:19] Speaker 05:
And the bottom line is it's not a fundamental business practice.

[00:23:23] Speaker 05:
What the district court referenced was somebody having a bunch of static pictures and a Rolodex.

[00:23:30] Speaker 05:
And for example, as we just pointed out,

[00:23:32] Speaker 05:
In the 739 patent, you have a dynamic building template.

[00:23:36] Speaker 05:
You have this dynamism.

[00:23:38] Speaker 05:
So even by what the district court was looking at as a business practice.

[00:23:42] Speaker 00:
And dynamic means what here?

[00:23:45] Speaker 05:
Well, dynamic means that you would take the blocks and you would build it.

[00:23:49] Speaker 05:
The district court said, well, I could have a bunch of static pictures, and I could just pick which static picture I want based upon it.

[00:23:55] Speaker 05:
Dynamic would be that you build it.

[00:23:57] Speaker 05:
You can put the product in the environment dynamically.

[00:24:00] Speaker 05:
You don't have to go out and take another picture.

[00:24:02] Speaker 05:
Or you don't have to have every static picture that they could possibly want.

[00:24:08] Speaker 05:
In fact, you wouldn't.

[00:24:10] Speaker 05:
So the dynamism is just simply something that's not a fundamental business practice.

[00:24:16] Speaker 05:
It's not something that was done.

[00:24:18] Speaker 05:
And the district court just didn't seem to appreciate that.

[00:24:23] Speaker 05:
It didn't really address it in its opinion.

[00:24:25] Speaker 05:
And then again, I go back to the lack of factual findings.

[00:24:28] Speaker 05:
It just gives this court very little that it could uphold on.

[00:24:32] Speaker 05:
other than just some conclusions that were based upon arguments that were made at the district court, but there's no evidence to support it being a fundamental practice.

[00:24:39] Speaker 05:
In fact, it's not.

[00:24:42] Speaker 05:
So the district court's ruling was premature.

[00:24:47] Speaker 05:
And there are factually disputed matters, including put in play by the one of three rulings in the Hyundai case, that should have precluded the district court's ruling.

[00:25:00] Speaker 05:
On those grounds and the other grounds I've discussed, this should be reversed and the district court should be either simply reversed or at the minimum the district court should be given a chance to consider, to apply the correct test to make sure that the claims are considered as a whole, to make sure the preemptive analysis is done.

[00:25:15] Speaker 05:
And then also the district court would have the opportunity to get the full play of relevant evidence that would come into play in terms of the overlap between 103 and 101.

[00:25:26] Speaker 05:
I think I'm over my time, so thank you.

[00:25:28] Speaker 02:
Thank you, Mr. Edmonds.

[00:25:29] Speaker 02:
I thank both counsel.

[00:25:30] Speaker 02:
The case is taken under submission.