[00:00:24] Speaker 04:
Next case is Concaten, Inc.

[00:00:27] Speaker 04:
versus Meritrac Fleet Solutions, 2016-11-12.

[00:00:31] Speaker 04:
Mr. Yort.

[00:00:33] Speaker 04:
Yes.

[00:00:35] Speaker 03:
Thank you, Your Honor.

[00:00:37] Speaker 03:
Carl Yort on behalf of Concaten with me as my co-counsel, Mr. Palladino.

[00:00:41] Speaker 03:
May it please the court?

[00:00:44] Speaker 03:
The patents in suit are directed to eligible subject matter because they are directed to the inventive concept of collecting data that no one had previously thought to collect.

[00:00:52] Speaker 03:
and use that data to produce instructions for plow operators.

[00:00:56] Speaker 03:
This result was previously unobtainable by the industry, and the evidence Concaten presented to the District Court demonstrated that the industry viewed Concaten's invention as a technological advance.

[00:01:07] Speaker 03:
The evidence put before the District Court shows that Concaten's invention is not the mere computerization of a previously known process.

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Furthermore, the USPTO has issued additional patents to Concaten following the Alice decision

[00:01:18] Speaker 03:
showing that the PTO still views the inventions disclosed in these patents as patent-eligible subject matter.

[00:01:24] Speaker 03:
And concatenate patents do not preempt the field of data acquisition and analysis from Snowplow because there are definite limitations in the claims that would allow a competitor to construct an equally efficient system without infringing concatenate patents.

[00:01:42] Speaker 04:
You may continue.

[00:01:44] Speaker 03:
Go ahead.

[00:01:45] Speaker 03:
OK.

[00:01:46] Speaker 03:
Concaten's patents solved two problems.

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One, we identified that data from snow plows would be useful in guiding operations of them.

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And two, we optimized snow plow allocation based on numerous variables that can change the effectiveness of plow operations.

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The industry was initially reluctant to adopt our system.

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And they viewed their previous practice, which just sent out plows with no guidance, to be sufficient.

[00:02:22] Speaker 00:
debating the proposition that we're talking about a method for fleet logistics.

[00:02:28] Speaker 00:
And it was unclear to me whether you're saying, well, that's not really what we're doing, that it's not really a fair characterization, or whether you're saying, even if that's a fair characterization, this form of it was not longstanding.

[00:02:41] Speaker 00:
So therefore, it can be somehow patentable or not.

[00:02:47] Speaker 03:
Yes, I think your second point is correct.

[00:02:50] Speaker 03:
Even if it is a method of fleet logistics management, it wasn't long standing because no one before Concaten had ever collected data from snow plows.

[00:03:02] Speaker 03:
So to take this data in and use it to control the process going forward was not something that had ever been done before.

[00:03:11] Speaker 03:
In fact, it couldn't have been done.

[00:03:14] Speaker 00:
But does it, I mean, I guess that's part of my point, is how specific do we have to be?

[00:03:18] Speaker 00:
In other words, if you're organizing human activity and you're using technology to improve how you organize that human activity, does it have to be that organization of human activity relating to snow plows was longstanding?

[00:03:32] Speaker 00:
Or can this type of organization of human activity for any kind of fleet logistics be the comparison?

[00:03:39] Speaker 03:
I believe it has to be limited to snow plows because the claims only discuss a snow plow embodiment.

[00:03:44] Speaker 03:
They require the data be taken from the snow plows.

[00:03:47] Speaker 03:
It's not just any gold data.

[00:03:49] Speaker 03:
It's snow plow data.

[00:03:51] Speaker 03:
So since it is a limitation of the claims, I think that is necessary to define the idea as limited to snow plows.

[00:04:03] Speaker 03:
So this case, I think, is a lot like the diamond versus deer case, which is still

[00:04:09] Speaker 03:
recognized as good law, in that it is a case where you take data and use it to control the process.

[00:04:18] Speaker 03:
That's exactly what Deere did.

[00:04:20] Speaker 03:
Took temperature data from a mold and used it to control the process of curing rubber.

[00:04:26] Speaker 03:
We take data from the operation of snow plows and use it to control the future process of those plows so that they can effectively plow the roads.

[00:04:37] Speaker 03:
And that's still good law.

[00:04:39] Speaker 03:
I mean, the district court distinguished Deer on the grounds that saying that we hadn't identified a problem that had previously been unsolved by the

[00:04:57] Speaker 03:
by the industry, but I think that we have demonstrated that.

[00:05:00] Speaker 00:
The district court did more than that, as I understand, as it relates to taking issue with your comparison.

[00:05:06] Speaker 00:
I mean, it wasn't the district court's point that even if this is a clever way to do something, and even if you get credit for being the first one to do it, that doesn't mean that there is a technological solution that you're proposing.

[00:05:22] Speaker 03:
This is actually a very complex technological solution, because

[00:05:26] Speaker 03:
A plow going down the road is not always in communication with its central server.

[00:05:32] Speaker 03:
So there's going to be a time when you're just out on the road with no communication.

[00:05:39] Speaker 03:
So that data has to be saved.

[00:05:42] Speaker 01:
But you didn't invent that.

[00:05:43] Speaker 01:
I mean, that's just generic capability that existed before, right?

[00:05:50] Speaker 03:
Buffering is a generic.

[00:05:54] Speaker 03:
use of data acquisition, saving it so that it can be communicated at a time when there's a connection.

[00:06:01] Speaker 03:
Yes, but again, no one had applied it in the snow plow field before.

[00:06:10] Speaker 03:
And I think the other thing the district court did was they disregarded the PTO's view on the patentability of these inventions.

[00:06:20] Speaker 03:
I mean, we have shown you in the briefs

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comparison of the claim from the CIP versus the comparison of the model claim in this case.

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And there's not very much difference between those two.

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And now the PCO is still issuing those patents, even after Alice, even after all the examiners have been guided on that issue.

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And so I think that that is evidence that should have been considered by the district court

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making this determination, but it doesn't find its way into the opinion at all.

[00:06:59] Speaker 03:
And then I do want to touch on the issue of this preemption, that we haven't preempted the field of snow plow data acquisition, because there are certainly limitations in those claims that would allow someone to make a non-infringing system, for example.

[00:07:20] Speaker 03:
The claims require that both a map and a instruction be sent back to the truck.

[00:07:28] Speaker 03:
So if you didn't send a map, but you just sent an instruction, you wouldn't be infringing.

[00:07:35] Speaker 03:
You could generate the map on board because you have the GPS data right there in your system on the truck.

[00:07:42] Speaker 03:
So if you generated your map on board and didn't derive it from the server, that would be another possible

[00:07:48] Speaker 03:
non-infringing system.

[00:07:50] Speaker 03:
And further, you could even generate a map and an instruction at the server, send it back to the truck, as long as you didn't send one of the enumerated instructions in the claim back.

[00:08:01] Speaker 04:
Council, it has occurred to me that if we all hadn't gone down this 101 route a number of years ago, so many of these claims would have been knocked out on a 103 basis, because they're all pretty obvious.

[00:08:16] Speaker 04:
Smoke, smoke, blouse communicating, and you've got a computer keeping track of the data.

[00:08:24] Speaker 03:
That's possibly true, Your Honor.

[00:08:25] Speaker 03:
I would note, though, however, that there are a lot of

[00:08:28] Speaker 03:
patents and prior art that are cited in those patents.

[00:08:30] Speaker 03:
And those patents have also been subjected to inter partes re-exam.

[00:08:34] Speaker 03:
So they've been vetted for a 103 question pretty thoroughly.

[00:08:41] Speaker 03:
But I take your point as well taken, that obviously other considerations of patentability could be in play.

[00:08:50] Speaker 03:
But those are questions of fact.

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And of course, we don't have any discovery in this case.

[00:08:55] Speaker 03:
This is just on the pleadings before any discovery has been taken.

[00:08:59] Speaker 04:
And of course, 103 is before us.

[00:09:03] Speaker 04:
Right.

[00:09:06] Speaker 00:
Going back to your argument with respect to the 836 CIP, there were a whole bunch of additional limitations in that claim that the PTO allowed.

[00:09:17] Speaker 00:
Were there not?

[00:09:18] Speaker 03:
The additions to that claim are that you would

[00:09:21] Speaker 03:
subject the data to data scrubbing, which is to take out obviously incorrect data from the feed and throw it away so that the data is clean.

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And then you would route it through multiple servers.

[00:09:38] Speaker 03:
But those additions I don't view as changing the eligibility of the claims.

[00:09:46] Speaker 03:
I think the eligibility is tied on this idea of collecting, ingesting the data from

[00:09:51] Speaker 03:
a snow plow, and then deriving the instructions of the map, sending it back.

[00:09:56] Speaker 03:
All those limitations.

[00:09:59] Speaker 04:
OK.

[00:09:59] Speaker 04:
You can plow ahead, or we'll save it for your rebuttal.

[00:10:03] Speaker 03:
I will save my time for rebuttal.

[00:10:08] Speaker 04:
Mr. Hanson.

[00:10:10] Speaker 02:
Thank you, and good morning, Your Honors.

[00:10:12] Speaker 02:
May it please the Court, I'm Lauren Hanson, here on behalf of the APLE, Ameritrack Fleet Solutions.

[00:10:18] Speaker 02:
As the district court found, these five patents are drawn towards patent-eligible subject matter.

[00:10:24] Speaker 02:
The district court should be affirmed.

[00:10:26] Speaker 02:
This case is very similar to the vast majority of Section 101 cases that this court has been hearing since the Alice decision was issued by the Supreme Court.

[00:10:34] Speaker 02:
The court's decisions in Affinity Labs, the vehicle intelligence case, TLI communications cases, and the content extraction cases are directly on point here.

[00:10:44] Speaker 02:
In each of those cases, this court affirmed a Rule 12 dismissal because the claims at issue were abstract ideas that offered no inventive concept.

[00:10:51] Speaker 02:
That is the same thing here.

[00:10:53] Speaker 00:
You're not disputing that they were the first to come up with this idea, right?

[00:10:57] Speaker 02:
Well, I don't think that's an issue to wrestle with here.

[00:10:59] Speaker 02:
And that's really going to be a fact question if this case gets remanded and we start discussing 102 and 103 issues.

[00:11:06] Speaker 02:
I think the important point there is that the novelty of any element or steps in the process

[00:11:12] Speaker 02:
has no relevance in determining whether there's subject matter eligibility.

[00:11:15] Speaker 02:
And that's the ultramarital decision and this Friday decision from Intellectual Ventures v. Symantec.

[00:11:22] Speaker 02:
So when we're talking about issues of novelty or obviousness, those do involve some questions of fact.

[00:11:27] Speaker 02:
But those aren't at issue in a 101 analysis.

[00:11:30] Speaker 02:
The Supreme Court in ALICE has directed us to look at subject matter eligibility at an early stage.

[00:11:36] Speaker 02:
And we can do it here on the pleadings.

[00:11:38] Speaker 02:
To briefly address learned counsel's argument on preemption,

[00:11:42] Speaker 02:
that somehow limiting this to a snow plow makes it patent eligible.

[00:11:46] Speaker 02:
I disagree.

[00:11:48] Speaker 02:
The court has been clear in Alice and in the Internet's patent case that limiting the use of an abstract idea to a particular technological environment is not enough.

[00:11:58] Speaker 02:
In the intellectual ventures case decided on Friday, a narrow claim directed to an abstract idea does not demonstrate patent eligibility.

[00:12:05] Speaker 02:
So simply taking a generic computer

[00:12:08] Speaker 02:
and doing some method, an abstract idea with a generic computer is not enough, even if you restrict it to the technological environment of snow plows.

[00:12:17] Speaker 02:
And I think those cases hold that.

[00:12:20] Speaker 02:
Respectfully, Your Honor, I think the district court's opinion was well-reasoned.

[00:12:25] Speaker 02:
It's correct.

[00:12:26] Speaker 02:
It's in line with the vast majority of Section 101 cases.

[00:12:29] Speaker 02:
And there is nothing that I see as particularly interesting in this case.

[00:12:34] Speaker 02:
Unless Your Honors have any further question, I will cede my time.

[00:12:38] Speaker 04:
Thank you.

[00:12:39] Speaker 04:
Mr. Hanson, Mr. Yorke has some bottle time if he needs it.

[00:12:47] Speaker 03:
I'll just speak briefly.

[00:12:48] Speaker 03:
I think the issue of the first to invent this idea is very important to the eligibility, because that's the actual invention, is to realize that this data was useful.

[00:13:07] Speaker 03:
and to where no one else had realized that that data was useful before.

[00:13:13] Speaker 03:
And then to take it and use it to control the process is the invention.

[00:13:18] Speaker 03:
So I really do think that is an important question.

[00:13:23] Speaker 03:
I mean, it's a question of fact, certainly.

[00:13:26] Speaker 03:
And on remand, we can certainly deal with that.

[00:13:29] Speaker 03:
But I do think that that is an important issue that the court should consider.

[00:13:33] Speaker 03:
That's all I have.

[00:13:34] Speaker 04:
Thank you, counsel.

[00:13:35] Speaker 04:
We'll take the case under advisement.

[00:13:39] Speaker 01:
All rise.