[00:00:00] Speaker 03: The Federal Circuit is now open and in session. [00:00:03] Speaker 03: God save the United States and its honorable court. [00:00:07] Speaker 05: Please be seated. [00:00:08] Speaker 05: Our first case today is 2016-1046, Data Treasury Corporation versus Fidelity National. [00:00:24] Speaker 05: Mr. Hurt, please proceed. [00:00:45] Speaker 00: Good morning. [00:00:47] Speaker 00: May it please the court. [00:00:49] Speaker 00: My name is Christian Hurt with my colleagues, Derek Gilliland and Edward Chen. [00:00:54] Speaker 00: I'm here this morning on behalf of Data Treasury. [00:00:57] Speaker 00: The board and these appeals aired by taking an incorrect view of these patents, their claims, their disclosure, and the prior art that's raised. [00:01:05] Speaker 00: This first appeal raises three issues, two of which are sort of threshold determinations and the third of which is a written description issue. [00:01:14] Speaker 00: The first is whether these patents are technological inventions and therefore exempt from CBM review. [00:01:20] Speaker 00: The second is whether the board correctly concluded that all of these claims do not claim patent eligible subject matter. [00:01:28] Speaker 00: And the third issue is the written description of encrypting the subsystem ID limitation which has been referred to I think in the record as SSID. [00:01:38] Speaker 00: I'd like to start with the threshold jurisdictional question briefly and then move on to the 101 and 112 issues because that jurisdictional issue pervades all three of these CBM appeals. [00:01:51] Speaker 01: We are not... I have a two-part question for you. [00:01:53] Speaker 01: Yes, Your Honor. [00:01:54] Speaker 01: Regarding Section 18 of the AIA and its applicability to the patents in suit. [00:02:01] Speaker 01: Senators, and this is in the JAA, in the ledge history, Senator Schimmer says, [00:02:08] Speaker 01: It is important that the record reflect the urgency of this provision. [00:02:11] Speaker 01: That is Section 18. [00:02:13] Speaker 01: Just today, while the Senate has been considering the AIA, Data Treasury, that is your client, the company which owns the notorious check imaging patents, that is the patents at issue here, and which has already collected over half a billion dollars in settlements filed suit in the Eastern District of Texas against 22 additional defendants, primarily community banks. [00:02:38] Speaker 01: These suits are over exactly the type of patents that Section 18 is designed to address. [00:02:45] Speaker 01: And the fact that they continue to be filed highlights the urgency of signing this bill into law and setting up an administrative review program at the USPTO. [00:02:56] Speaker 01: In the red brief, Appellee states, the added treasury does not and cannot dispute that Section 18's legislative history specifically refers concern over the Ballard patents. [00:03:09] Speaker 01: Congress's adoption of the broader Section 18 shows only that its concern extends beyond the balance of patents. [00:03:17] Speaker 01: Can you explain to this two-part question? [00:03:20] Speaker 01: Can you explain to this court why you believe Senator Schumer's statements do not demonstrate that Section 18 does not apply to the patents in suit despite being discussed in relation to 18? [00:03:32] Speaker 01: And second, do you have a response to Fidelity's assertion? [00:03:37] Speaker 01: And if you do, tell me. [00:03:39] Speaker 00: Sure. [00:03:41] Speaker 00: So I don't dispute and Data Trader does not dispute that Senator Schumer's patents are, sorry, comments are directed at these two patents. [00:03:50] Speaker 00: And so that's part one. [00:03:51] Speaker 00: And then the second part is and I do not dispute Fidelity's assertion that Senator Schumer mentioned these patents specifically. [00:04:01] Speaker 00: The issue, however, is the legislative history comes into play when the statute is considered ambiguous. [00:04:08] Speaker 00: And there's never been an allegation in this case that anything in Section 18B is ambiguous such that this court should rely on four statements which under Supreme Court precedent are lower on the tier to determine how to interpret a statute. [00:04:24] Speaker 00: And the second answer I would give is we are not contesting that these patents fall under the first part of 18D about being directed to a financial product or service. [00:04:35] Speaker 00: The issue that we're raising is the technological invention provision, which was defined by the patent office, not by Congress. [00:04:44] Speaker 00: And there aren't statements in the record. [00:04:47] Speaker 05: Congress delegated to the PTO the authority to issue substantive rules, and in particular to define the technological invention aspect, didn't it? [00:04:55] Speaker 05: That is correct. [00:04:57] Speaker 05: So Congress expressed and delegated. [00:04:59] Speaker 05: So why don't you move on to the regulation, which is 42.301, which is where they defined it. [00:05:05] Speaker 05: and tell me why this isn't a technological invention under that substantive definition. [00:05:12] Speaker 02: You're not challenging the validity of the regulation today, right? [00:05:15] Speaker 02: No, Your Honor. [00:05:16] Speaker 02: You're just saying that the agency here abused its discretion in applying a valid regulation to your case. [00:05:24] Speaker 02: That is correct. [00:05:25] Speaker 02: All right. [00:05:25] Speaker 02: So go ahead. [00:05:26] Speaker 02: How did it abuse its discretion out here? [00:05:29] Speaker 05: Is the standard abuse of discretion? [00:05:30] Speaker 05: You seem to accede very quickly to Judge Chen's predicate. [00:05:33] Speaker 00: The standard is abuse of discretion, I believe, under this court's Sitesound versus Apple decision. [00:05:42] Speaker 00: This is an APA challenge with APA review, even though the question is a jurisdictional one. [00:05:48] Speaker 00: For the patent office, this court has held that the review is abuse of discretion review. [00:05:53] Speaker 00: The reason that these patents do claim technological inventions [00:05:59] Speaker 00: is because they have a novel network architecture that uses an encryption-based approach to solve a technical problem, namely how computers efficiently process and manage large volumes of information. [00:06:12] Speaker 00: The patents talk about the prior art, and there were two prior art systems in the background using something like a CD-ROM to physically scan images of a document, put that on a CD-ROM, and then mail it to a central location [00:06:26] Speaker 00: or mail the actual records to the central location for scanning on a CD-ROM. [00:06:32] Speaker 00: And then the second piece of prior art is what's referred to a uniform electronic transaction card. [00:06:39] Speaker 00: But let me tell you what my concern is about your position. [00:06:42] Speaker 02: As I understand the standards under the PTO's regulation, your invention, your claimed invention needs to solve a technical problem with a technical solution at bottom. [00:06:56] Speaker 02: and when I look at your claims they seem to be just calling for capturing data at one location and then circulating it to one or more other locations and doesn't really explain any more than that other than the objective of let's grab data at this one remote location and now let's encrypt it who knows how you're going to encrypt it but let's encrypt it and then let's transfer it to another location or [00:07:27] Speaker 02: two locations and that claim doesn't really give us any of the nuts and bolts in my view right now unless you can persuade me otherwise on how any of that's getting accomplished and so therefore what this claim looks like is a very broad-based functional results oriented claim without really providing some inventive contribution to accomplish any of these larger objectives. [00:07:56] Speaker 02: Please tell me where I'm off track. [00:07:59] Speaker 00: So it is true that the claim components, the computers, and the encryption can be conventional. [00:08:07] Speaker 00: But what the claim discusses and the part that is a technical solution is the actual network architecture in which the claims are employed. [00:08:19] Speaker 00: So there's two sets of claims. [00:08:20] Speaker 00: There's a two-tier set and a three-tier set. [00:08:23] Speaker 00: and the two-tier set also uses encryption and I agree. [00:08:26] Speaker 02: You couldn't possibly be saying it, two tiers for one computer connected to another computer which what you call a two-tier architecture is something that's novel and advanced or a technical solution. [00:08:42] Speaker 00: Well, when looking at the prior art that's in the patent itself, that is the technical solution because the prior art discusses how those, [00:08:52] Speaker 00: how images were scanned on a CD and ultimately mailed. [00:08:57] Speaker 00: I understand the patent could have given more detail on the specifics of the architecture and how these functions are achieved. [00:09:05] Speaker 00: We're here with the specification that we have, but it seems to me that that is a specific technical solution. [00:09:15] Speaker 02: But it's extremely conventional utilization of computer networks. [00:09:21] Speaker 02: that's been going on for decades, hooking up one computer to another computer located at remote distance and being able to transmit data from computer one to computer two. [00:09:32] Speaker 02: If that's what you're relying on, I don't see how that can be deemed anything particularly inventive. [00:09:43] Speaker 02: Yes, you're referring to the fact that [00:09:45] Speaker 02: Maybe in the prior art you're referring to, people used to take data, store it on a CD-ROM and mail the CD-ROM, but that is an overly narrow understanding of the state of play of computer network architecture which existed long, long, long before Mr. Ballard invented whatever he invented here. [00:10:07] Speaker 00: No, I agree that the basic concept of transmitting [00:10:12] Speaker 00: information from one computer to another did exist prior to when this patent was filed. [00:10:17] Speaker 01: Or was the practice of transmitting, I think you've already conceded the practice of transmitting financial data about checks from one bank to another what standard business practice? [00:10:31] Speaker 00: I believe that's correct. [00:10:33] Speaker 00: Below there was a statement made to the board that transferring financial data and process and it was [00:10:41] Speaker 00: what's done in the prior art from one bank to another. [00:10:44] Speaker 00: The technological invention that is the heart of these claims is really a combination invention of taking that system, using it with encryption, and collecting paper image data and being able to securely transmit that throughout the system. [00:11:06] Speaker 00: And that's something that, at least in the [00:11:09] Speaker 00: The patent itself is a technical solution. [00:11:13] Speaker 00: Can you go quickly to your 101 argument? [00:11:15] Speaker 00: You're running out of time. [00:11:17] Speaker 00: It's related, but. [00:11:18] Speaker 00: Sure. [00:11:19] Speaker 00: So it's a similar argument. [00:11:21] Speaker 00: Again, these patents focus on fixing those two problems in the prior art. [00:11:27] Speaker 00: And the two prior art solutions had some inherent problems with them. [00:11:33] Speaker 00: So scanning checks, putting them on a CD, and mailing it. [00:11:37] Speaker 00: had problems with security damaging the checks and it was costly. [00:11:42] Speaker 00: And it could only do paper transactions. [00:11:44] Speaker 00: The electronic transaction card could not do paper transactions but could do electronic transactions, but it had certain limitations on security. [00:11:55] Speaker 00: And the patents, yes, your honor. [00:11:57] Speaker 02: When it comes to encryption, I know that's one leg you're standing on here. [00:12:02] Speaker 02: If there was a claim that said, [00:12:06] Speaker 02: data stored on computer number one, encrypting that data and then transferring that encrypted data to computer number two. [00:12:17] Speaker 02: Do you think that claim ultimately is ineligible under section 101 for being nothing more than the abstract idea of transmitting encrypted data? [00:12:29] Speaker 02: It's at way too high of a level of generality. [00:12:32] Speaker 00: I'm into my rebuttal time. [00:12:33] Speaker 00: Can I answer your honest question? [00:12:35] Speaker 00: I would agree with that. [00:12:38] Speaker 02: So the basic notion of encrypting data before transmitting that data, that's abstract as a basic proposition. [00:12:48] Speaker 00: Well, in step one, the court has to look at what the claims are directed to. [00:12:52] Speaker 00: And these claims are not directed to encryption only, or the idea of encryption between two different computers. [00:13:01] Speaker 05: So what are these claims directed to then? [00:13:03] Speaker 00: Well, there's two sets of claims. [00:13:05] Speaker 00: A large set encryption is optional and there's a three tiered network system that's in figure one of the patent. [00:13:13] Speaker 00: And that tiered system provides an inventive concept because it allows the remote data computers to effectively collect information in an efficient way [00:13:28] Speaker 05: You didn't claim collecting data in an efficient way, right? [00:13:33] Speaker 05: There's nothing precise about the way the data is collected that is what's at issue in these claims, correct? [00:13:40] Speaker 00: I believe it's inherent in that architecture and the specification discusses that one of the objects of the invention is to have this three-tiered architecture of what are called data access terminals, data access collectors, and then [00:13:57] Speaker 00: to central TPC, which is the data product. [00:14:00] Speaker 00: Yes, your honor. [00:14:00] Speaker 01: You sent us BRAVES and an appendix. [00:14:06] Speaker 01: And then you wrote to us and said, oh, it turns out that our references are all incorrect. [00:14:13] Speaker 01: And here's a chart which shows you what the references actually should be. [00:14:18] Speaker 01: You just refer to the chart, and then you can see where we actually mean in the appendix. [00:14:23] Speaker 01: Now, in the trade back in the old days, that's what we call the standard substitution cipher. [00:14:28] Speaker 01: So have you invented a new method of filing briefs? [00:14:32] Speaker 01: And is it patentable? [00:14:33] Speaker 00: Thank you. [00:14:34] Speaker 00: No, Your Honor. [00:14:36] Speaker 00: I think that mistake is common. [00:14:39] Speaker 00: And my apologies to the court. [00:14:41] Speaker 00: This is in the five serve appeal. [00:14:43] Speaker 00: There were some issues on the back and forth getting the joint appendix together. [00:14:47] Speaker 00: My apologies. [00:14:48] Speaker 05: But going back to the question I asked before, because I don't feel like I yet understand precisely your answer. [00:14:53] Speaker 05: And I'll restore your rebuttal time. [00:14:55] Speaker 05: Don't worry. [00:14:58] Speaker 05: My question to you is, say in the two tier system, because you've got claims here to a two tier system. [00:15:02] Speaker 05: So that's weaker for you, right? [00:15:03] Speaker 05: The fewer the limitations, the broader the claim, the weaker your case. [00:15:07] Speaker 05: So go to the weakest part of your case. [00:15:09] Speaker 05: Tell me why there is novelty in the two tiered system. [00:15:13] Speaker 05: Because the novelty, as far as I can tell, doesn't come from the individual elements. [00:15:17] Speaker 05: You don't articulate a new method of encryption. [00:15:21] Speaker 05: Some of the claims don't even require encryption. [00:15:22] Speaker 05: You don't articulate a new method of capturing the data off the check, correct? [00:15:27] Speaker 05: Am I wrong? [00:15:31] Speaker 05: Is there something novel about the method you've claimed for extracting the data off the check? [00:15:37] Speaker 00: The part that would be novel is the use of the data, but actually extracting the data via scanner. [00:15:42] Speaker 00: I think that's been conceded below was not invented. [00:15:46] Speaker 05: So there's nothing novel about extracting the data off of the check. [00:15:50] Speaker 05: That would be like the routing number or the account number, that sort of thing, right? [00:15:54] Speaker 05: I'm just making sure I understand. [00:15:55] Speaker 00: Right, there's different information that's on a check. [00:15:57] Speaker 00: That's pretty tricky. [00:15:58] Speaker 05: I just want to make sure I understand the fact. [00:15:59] Speaker 00: There's different information that's on a receipt or a check, some of which [00:16:04] Speaker 00: identifies transactions, some of which identifies a terminal or where the document was from. [00:16:09] Speaker 00: That's correct. [00:16:10] Speaker 05: But that process of extracting isn't part of the novelty. [00:16:14] Speaker 05: The encryption isn't part of the novelty. [00:16:17] Speaker 05: So where in is the novelty? [00:16:21] Speaker 00: Well, I think it's the combination of the two. [00:16:23] Speaker 00: It's the use of encryption of subsystem identification information, which is in all of those two-tier plus encryption claims. [00:16:32] Speaker 00: And actually that allows the security of where the check or the document was initially scanned in combination with the tiered network system that improved upon how banks and in particular as described in the background, previous parties would scan images on a CD and mail them or mail their paper receipts. [00:16:52] Speaker 00: So it's the added security that comes from using this computer system and the novel combination. [00:16:59] Speaker 05: Okay. [00:17:00] Speaker 05: Okay, thank you very much, Mr. Hurt. [00:17:01] Speaker 05: Let's hear from Ms. [00:17:02] Speaker 05: Arner. [00:17:03] Speaker 00: Thank you, Your Honor. [00:17:38] Speaker 04: Please proceed. [00:17:40] Speaker 04: Good morning, and may it please the court. [00:17:43] Speaker 04: Before I turn to the merits of the 101 and 112 argument, I'd just like to make one preliminary point. [00:17:50] Speaker 04: I have always struggled with the idea of preemption in 101. [00:17:56] Speaker 04: I mean, all patent claims preempt something at some point. [00:17:58] Speaker 04: And so the analysis of trying to decide whether a claim preempts too much to be patentable has always been difficult for me to grasp. [00:18:07] Speaker 04: until this case when you look at the claims that recite only admittedly known computers and known algorithms and the language being at the highest level of generality and then you look at what data treasury has said in their briefs they've extracted hundreds of millions of dollars in licensing and damages they have sued dozens of banks they continue to enforce these patents I think I understand what the fundamental concern is about preemption and of course the [00:18:37] Speaker 04: Supreme Court has helped us out with preemption. [00:18:39] Speaker 04: And this is where I usually go when I'm asked about preemption, is they've said there's the two-part test in Alice and Mayo. [00:18:45] Speaker 04: And that's what we need to do is for claims where there is a risk of preemption, as I think everyone agrees there is here, at least I do and the board does. [00:18:53] Speaker 04: The question is really step two. [00:18:54] Speaker 04: And that framework is what we use to tamp down the preemption and to test it. [00:18:59] Speaker 04: But here, in addition to what the Supreme Court has given us in the two-part test, Congress changed the law to address these patents. [00:19:05] Speaker 04: And we're not asking the court to rely on the legislative history, although we find it fairly persuasive. [00:19:11] Speaker 04: On the CBM issue, we're just asking the court to see if the Patent Office did what it was supposed to do, if they abused their discretion. [00:19:17] Speaker 04: They certainly didn't. [00:19:19] Speaker 04: I'll turn to CBM if you'd like to talk about it, but I'd rather talk about 101 first. [00:19:23] Speaker 05: No, I'd like to hear you talk about CBM and whether or not this is a technological feature that is novel and non-obvious and solves a technological problem. [00:19:31] Speaker 04: Sure. [00:19:31] Speaker 04: So first, I would point out that for CBM, the standard is very deferential to the board. [00:19:36] Speaker 05: And the argument that the Patlin I think has made is that it's- You think discretion, though, simply means an error of law. [00:19:42] Speaker 05: Like, for example, if they misinterpreted their own regulation, it would be an error of law. [00:19:46] Speaker 05: Please let me finish. [00:19:47] Speaker 05: It would be an error of law. [00:19:48] Speaker 05: or if they messed up on a fact finding or something along those lines, that would be clear error review. [00:19:54] Speaker 05: So if use of discretion sounds ominous, but it really is just the same two standards that we use all the time. [00:19:59] Speaker 04: Okay, and so following for the framework that was used in Versata or reaffirmed in Blue Calypso, the patent office on the substance got it right. [00:20:10] Speaker 04: They looked at the patent itself and they looked at the specification and the claims and the patent's admissions over and over again of all of the [00:20:18] Speaker 04: off-the-shelf components. [00:20:19] Speaker 04: And when the board looked at its trial practice guide, which the court has said is an appropriate thing for them to do, they looked at the language in the trial practice guide that talks about things like scanners, display devices, computer hardware, computer readable media, those kinds of things not creating a technological invention. [00:20:37] Speaker 04: And instead, they looked to their regulations, where a technological invention is perhaps not the most helpfully defined as a technical improvement to a technical problem or [00:20:46] Speaker 02: a novel non-obvious technical. [00:20:49] Speaker 02: It's not any one individual component. [00:20:52] Speaker 02: It's the ordered combination of all the components that's created this three-tiered architecture that creates an advance that's using technology that overcomes [00:21:04] Speaker 02: laws and the prior art approaches to transmitting some of this banking data from one remote location to another. [00:21:11] Speaker 02: What do you have to say about that? [00:21:12] Speaker 04: I think there are two problems with that argument, and they kind of apply to both. [00:21:15] Speaker 04: The CBM, I want to make sure I've answered your questions on CBM, but they also apply to 101. [00:21:20] Speaker 04: And as far as the tiered network or the arrangement of these prior components, the first problem is that that arrangement is not new. [00:21:29] Speaker 04: And the board considered evidence before it that three tiered networks, [00:21:33] Speaker 04: in banking were known, and there was prior art put in by our expert at the board. [00:21:38] Speaker 04: And the board also noted that, and the court has said it's OK for the board or district courts to do this, that the court can recognize things that are not debatable. [00:21:47] Speaker 04: And the board recognized that in addition to the Campbell reference, it's not debatable that banks had branch, regional, and central offices. [00:21:55] Speaker 04: That's something that was well known. [00:21:56] Speaker 04: And so to the extent that that three-tier argument is their technological invention, the board considered that. [00:22:02] Speaker 04: And they said, no, that is not novel. [00:22:05] Speaker 04: And if you look to their regulations, it requires a novel and non-obvious technical feature, not just routine computers. [00:22:10] Speaker 02: Is that what we're supposed to do in assessing whether a claim is directed to a technological invention? [00:22:16] Speaker 02: We look at novelty? [00:22:18] Speaker 02: We look at non-obviousness? [00:22:20] Speaker 04: So that is a fuzzy area. [00:22:23] Speaker 04: And I don't think this one even gets close to the line. [00:22:27] Speaker 04: This patent gets close to the line. [00:22:30] Speaker 04: Patent office regulation, which has been reviewed a couple times by the court, has sort of the two-part test. [00:22:36] Speaker 04: It can be a novel technical solution to a technical problem or a novel, non-obvious technical feature. [00:22:43] Speaker 04: And that's the definition that they applied here, which was well within their discretion to use to determine that these are CBM patents and then move on to the actual analysis. [00:22:55] Speaker 04: what they did, and it's not an abuse of discretion, at least on a CPM prong, where that's a standard of review. [00:23:02] Speaker 04: Turning to 101, it's a similar but not identical question. [00:23:07] Speaker 04: And we've been spending a lot of time thinking about 101. [00:23:10] Speaker 04: Recently, the court has issued several recent decisions on 101. [00:23:14] Speaker 04: And looking at these claims originally, the first time I looked at the patent, there are a lot of computer terms in the specification. [00:23:22] Speaker 04: If you look at the spec, they describe all sorts [00:23:25] Speaker 04: prior art computers, prior art algorithms. [00:23:28] Speaker 04: They assign hardware special acronyms, the DAT, the DAC, the DPC. [00:23:34] Speaker 04: All of these things are explained in the specification as being general purpose computers. [00:23:39] Speaker 04: But nonetheless, for the preemption concerns that Congress raised with respect to these patents and others like them, the board did the right thing. [00:23:48] Speaker 04: They looked at the two-part Alice analysis. [00:23:50] Speaker 04: Is there an abstract idea? [00:23:52] Speaker 04: And the court recently has said in a couple of different ways [00:23:54] Speaker 04: You need to look at the focus in step one, look at the focus of the claims, look at the overall character of the claims in light of the specification, and then move on to step two in some cases. [00:24:03] Speaker 04: It's a flexible fluid analysis. [00:24:06] Speaker 04: But so here, the board found by looking at the actual claims, and if you look at the claims that were represented below, I think you sort of pointed out [00:24:14] Speaker 04: There's not a lot of specificity. [00:24:16] Speaker 04: They're very general. [00:24:17] Speaker 04: Well-known business practices. [00:24:19] Speaker 04: Well-known business practices, yes. [00:24:21] Speaker 04: And looking at claim 46, for example, which is the one we addressed in our petition, it's capturing an image and then five transmitting steps in claim 46 in the 988 patent, which is the one that the parties briefed in this case. [00:24:34] Speaker 04: So at step one, you look at the overall character, and not just at the claims, although of course the claims are the focus, but you also look to the specification. [00:24:42] Speaker 04: And the Patent Owner's Council talked about the problems that are described in the specification. [00:24:47] Speaker 04: In a lot of the recent cases that have been decided, one of the things the court has talked about is, is there a technical problem that's being addressed by a technical solution in the claims? [00:24:57] Speaker 04: And talking about the patent here, the specification describes the two prior art systems that Patent Owner's Council mentioned, sort of a prior art paper, sort of hybrid paper, scanning, or that UET card thing. [00:25:10] Speaker 04: But the state of the prior art is not limited to that. [00:25:14] Speaker 04: It's a fundamental business practice. [00:25:16] Speaker 04: It's not limited to what the patent says. [00:25:17] Speaker 04: It's important to look at the patent, but it's not the only thing against which a prior art, what the state of the art is measured. [00:25:25] Speaker 04: And here the board had, although evidence is not required for 101, it can be helpful where there are factual inquiries. [00:25:31] Speaker 04: And here the board had testimony that was never cross-examined. [00:25:35] Speaker 04: from our expert explaining exactly what the overall patent was directed to from the point of view of a skilled artisan, and then also looked at the purported technical advances, the three-tier architecture that they've mentioned in the encryption, and explained where all of those things were known in the prior art. [00:25:54] Speaker 04: So when the board looked at the two-step analysis, [00:25:57] Speaker 04: They had that evidence as well. [00:25:58] Speaker 02: I guess you're making it sound like the board engage in a little bit of fact finding. [00:26:02] Speaker 02: So are you saying that in this particular instance, it's not a pure de novo review on section 101 but in fact, it's some little hybrid where we would have to take into account certain fact finding in this case? [00:26:15] Speaker 04: No, I don't think any of that is necessary. [00:26:17] Speaker 04: I think these patents. [00:26:18] Speaker 02: But you were just saying the board relied on your expert declaration [00:26:23] Speaker 02: Who was opining as a factual matter? [00:26:26] Speaker 02: I think it was a factual matter how one of ordinary skill in the art would understand the content of the Specification I guess what yes, what do you mean by that? [00:26:34] Speaker 04: Yeah? [00:26:34] Speaker 04: So my point on that was that the board had that at its it did not rely on that But it had it at its disposal and looked at it to further to confirm its conclusion that the claims are directed to an abstract idea the overall character of the claims is directed to the abstract idea and then looking at step two [00:26:51] Speaker 04: what the purported invention was as far as the arguments from the patent owner, the three-tiered network and encryption, the board both on its own knew that three-tiered network was something that was out there. [00:27:03] Speaker 04: That's where they found, they said on their own, the banks had branch, regional, and central offices. [00:27:09] Speaker 04: That is beyond debate. [00:27:11] Speaker 04: And so the three-tiered network is not something that is a meaningful limitation under 101. [00:27:16] Speaker 02: There were something like 200 claims in these two patents. [00:27:19] Speaker 02: Yes. [00:27:20] Speaker 02: And yet the board didn't analyze all 200 claims. [00:27:23] Speaker 02: It analyzed a very small handful of those claims and then ended up slaying all 200 claims. [00:27:29] Speaker 02: Yes. [00:27:30] Speaker 02: Is that the right way to go about it? [00:27:32] Speaker 02: I mean, the burden is on you, right? [00:27:35] Speaker 02: The burden's on you, the petitioner. [00:27:37] Speaker 04: Yes, the burden is on us. [00:27:38] Speaker 02: To convince the tribunal that all the claims are no good. [00:27:46] Speaker 02: Why don't you need to do something on a more individualized level when it comes to each of the approximately 200 claims? [00:27:53] Speaker 04: Sure. [00:27:54] Speaker 04: So we did. [00:27:55] Speaker 04: The petitioner carried its burden, which is what the board found. [00:27:57] Speaker 04: We bore the burden to prove unpatentability by the Congress and evidence for every claim. [00:28:01] Speaker 02: And we're reviewing the board's decision, though. [00:28:02] Speaker 02: And the board's decision was very limited in what it focused on, right? [00:28:07] Speaker 04: So the board did just what this court and the Supreme Court have done in similar 101 situations. [00:28:12] Speaker 04: If you look at the claims in the Alice case that went to the Supreme Court, [00:28:16] Speaker 04: The court there used a single representative claim to invalidate over 200 claims across four patents, because those claims were not meaningfully different. [00:28:25] Speaker 04: And the parties agreed that was the representative claim. [00:28:27] Speaker 02: Similarly, more recently. [00:28:28] Speaker 02: But here, it's not clear that there's an agreement that there was a representative claim. [00:28:33] Speaker 02: I mean, yes, maybe in a lot of different litigations, the parties, to reduce the focus of the case, [00:28:41] Speaker 02: come to an agreement on what claim can be representative of a whole multitude of claims. [00:28:46] Speaker 02: Did that happen here? [00:28:47] Speaker 02: I don't see anything in the record that says, yes, we all can agree that claim 46 of the 137 is representative. [00:28:54] Speaker 04: Right. [00:28:54] Speaker 04: So what happened here was we used representative claims in our petition. [00:28:58] Speaker 04: And the board and the patent owner in its preliminary response did not argue that there were other claims that should not be treated the same. [00:29:05] Speaker 04: That's different from, I think your point is, they didn't say, we agree, let's just look at claim 46. [00:29:09] Speaker 04: They did not do that. [00:29:11] Speaker 04: The board and its institution decision noted, we're instituting, you haven't put anything in on the other claims. [00:29:18] Speaker 04: And together with our petition, both in the petition and in the expert deck that was with it, we went through every single claim. [00:29:26] Speaker 04: And those citations are in a brief, which I can give you. [00:29:28] Speaker 04: But the patent owner then came back and put in their patent owner response. [00:29:33] Speaker 04: And they did not give any additional reasons why other claims should be treated differently. [00:29:36] Speaker 01: They also did not. [00:29:38] Speaker 01: There's a lot of the record where you have to say, [00:29:41] Speaker 01: Well, this was actually a concession. [00:29:44] Speaker 01: Because there's an absence. [00:29:45] Speaker 04: Well, there is. [00:29:46] Speaker 04: They did not do a lot of things. [00:29:47] Speaker 04: They didn't cross-examine our expert. [00:29:49] Speaker 04: They didn't put in there. [00:29:50] Speaker 04: But setting that aside, although I think it's important, setting that aside from a substantive standpoint, this is exactly what the court did in content extraction recently, where the court looked at several hundred, I can't remember the exact number, but it was a couple hundred claims using representative claims. [00:30:05] Speaker 04: And the patent owner argued, hey, wait. [00:30:08] Speaker 04: I have these dependent claims that are different or narrower. [00:30:11] Speaker 04: And these dependent claims are patentable for different reasons. [00:30:16] Speaker 04: And the court noted there that just like here, the patent owner could have presented those arguments. [00:30:22] Speaker 04: But while we were using these representative claims, the only response from the patent owner even at the hearing was, it's the petitioner's burden. [00:30:28] Speaker 04: We don't have to address any other claims. [00:30:30] Speaker 04: So you're right. [00:30:31] Speaker 04: They didn't specifically say, just look at this. [00:30:33] Speaker 04: They all rise or fall together. [00:30:36] Speaker 04: But even where that's the case, they didn't. [00:30:38] Speaker 04: argue any separate claims in this court, the board did exactly what this court has done with respect to the representative claims. [00:30:45] Speaker 05: What would you say is the abstract idea? [00:30:47] Speaker 05: Characterize it for me. [00:30:50] Speaker 04: I think the abstract idea that the board came up with is appropriate, transferring data from one place to another. [00:30:58] Speaker 04: Some of the claims, as you have recognized, include encrypting, but not all. [00:31:03] Speaker 05: Is this case really just about transferring? [00:31:06] Speaker 05: I mean, are these claims simply directed to the abstract idea of transferring? [00:31:10] Speaker 05: Don't they also, many of them, include capturing? [00:31:14] Speaker 04: Yes, that's correct. [00:31:15] Speaker 04: And so if the court wants to look at something a little bit more specific for an abstract idea, [00:31:19] Speaker 04: I think it's very similar to the abstract ideas in content extraction, which was a couple years ago, or TLI Communications decided more recently, where the court said they looked at claims that have a lot of computer components. [00:31:32] Speaker 04: They don't just say business method plus one computer, but there are other computer components in the claims. [00:31:38] Speaker 04: And yet, the court found that when you look at the specification, and here, especially where the specification lists 20 or 30 different kinds of prior art computers and prior art servers, [00:31:48] Speaker 04: Really the focus is the transmission of lots of data. [00:31:53] Speaker 04: That's what the patent owner said. [00:31:54] Speaker 04: So in content extraction, for example, the abstract idea was collecting data, recognizing certain data within the collected data set, and storing that recognized data in memory. [00:32:04] Speaker 04: I think however broadly or narrowly you cast the abstract idea here, that leaves the rest for step two, and these claims are written at such a high level of generality. [00:32:16] Speaker 04: There is nothing specific or different they can point to. [00:32:18] Speaker 05: So the technological invention threshold question, as well as 101 now, has as a component to it, both of them have as a component to them, some sort of assessment of the non-obviousness or the novelty of whether it be the individual features and the claimed combination as a whole, correct? [00:32:42] Speaker 04: I think there's a flavor of that if you look back to the Mayo case. [00:32:45] Speaker 04: Well, a regulation in the technological innovation case expressly requires it. [00:32:49] Speaker 04: Yes, because I think that has come into the law after I think in Mayo, Justice Breyer sort of talked about that some in the dicta in that case about [00:32:56] Speaker 04: acknowledged what Deere said, that these are separate. [00:32:59] Speaker 05: I would love to have you highlight for me all the dicta in that case that I can then disregard in the future. [00:33:05] Speaker 05: That would be useful. [00:33:06] Speaker 04: I do think it was, but it was from a Supreme Court justice. [00:33:08] Speaker 04: And so while we have Deere that says they are separate, and this court has said in almost all of its recent 101 decisions, these are separate things. [00:33:16] Speaker 04: I think that's a place where it's a little correct. [00:33:18] Speaker 05: But I guess so much of your argument, it seems to me, has hinged today on [00:33:24] Speaker 05: the prior art disclosed in the patent and the number of three-tiered systems. [00:33:27] Speaker 05: Everybody knew that banks had branches and regional offices and all these other things. [00:33:32] Speaker 05: So much of your argument seems to be focused on the novelty or non-obviousness of both the components and the combination as a whole. [00:33:40] Speaker 05: But we have all of these other cases, which we're going to hear later. [00:33:42] Speaker 05: No doubt you're familiar with them, though you're not the person specifically arguing them. [00:33:46] Speaker 05: And the PTO reached different conclusions regarding novelty and non-obviousness on different claims at issue in these cases. [00:33:55] Speaker 05: How does that affect your 101 case? [00:33:58] Speaker 05: Let me give you a hypothetical, which is not precisely going to represent the facts of this case. [00:34:03] Speaker 05: But suppose that the PTO rules this is not a technological invention. [00:34:08] Speaker 05: Therefore, CBM applies. [00:34:10] Speaker 05: And they say because it doesn't have a novel or non-obvious feature. [00:34:17] Speaker 05: And then they come along under 102 and 103 and say, but we're not going to reject this for 102 or 103 because we see some novelty and non-obvious features in some of the claim elements or in the combination as a whole. [00:34:31] Speaker 05: Don't you see some potential internal inconsistency in those findings? [00:34:37] Speaker 04: I do. [00:34:37] Speaker 04: I see the tension. [00:34:37] Speaker 05: And do we have that here? [00:34:39] Speaker 04: I don't think we have it here. [00:34:40] Speaker 05: How do we not have it here? [00:34:41] Speaker 05: Because in some of the subsequent cases that I'm going to hear in the next several cases, PTO didn't reject all of the claims on novelty and non-obviousness. [00:34:50] Speaker 05: They concluded some of the claims were allowable. [00:34:53] Speaker 05: So how have they both made that conclusion with regard to some of the claims and yet found the CBM applies for all of them because there's no technological invention because there's nothing novel and non-obviousness in any of the claims? [00:35:07] Speaker 05: I see a dramatic inconsistency. [00:35:09] Speaker 04: OK, so there's one thing I think which the board has long applied that I think this court has blessed, which is to be CBM, you only have to have one CBM claim, not all of them. [00:35:20] Speaker 04: And so all you have to do is look at one. [00:35:21] Speaker 05: Wait, where did we bless that? [00:35:24] Speaker 05: Where did we say? [00:35:27] Speaker 05: that you could have one CBM claim, and that gave the PTO authority to invalidate every claim in the patent, even if the rest of them are not directed at CBM. [00:35:37] Speaker 04: Yes, I believe it's blue calypso. [00:35:38] Speaker 04: We can pull up that case for you. [00:35:40] Speaker 04: But that's been the practice at the PTAB since the very beginning, since Versada. [00:35:42] Speaker 04: Maybe it was Versada. [00:35:43] Speaker 05: Well, that may be the practice of the PTAB. [00:35:45] Speaker 05: But I'm not certain that I understand that to have been resolved by our court, that they're free to therefore reach anything they want in scope, even if the scope isn't contained within CBM. [00:35:58] Speaker 04: Do you have a backup argument, just in case? [00:36:00] Speaker 04: I do. [00:36:00] Speaker 04: I have a backup argument in case you don't like that one. [00:36:02] Speaker 04: But I think because the CBM question is a threshold one, patents are not invalid. [00:36:09] Speaker 04: because they are CBMs. [00:36:11] Speaker 04: Patents are reconsidered by the patent office under transitional section 18. [00:36:15] Speaker 04: And that definition was trying to capture what patents should we look at again? [00:36:19] Speaker 04: What did Congress mean when it passed section 18? [00:36:22] Speaker 04: So the CBM inquiry is different from the patentability questions, because it's answering a different question. [00:36:27] Speaker 04: But you're pointing out, which I think is correct, the tension that what they've said is a technological invention starts talking about novel and unobvious things. [00:36:34] Speaker 04: And that's where there is some blurring. [00:36:36] Speaker 04: The reason I don't think it applies here, even if you reject all of the prior art challenges, is because Congress also said look at 101 again in CBMs. [00:36:46] Speaker 04: Unlike re-exam, they put 101 in. [00:36:49] Speaker 04: And when you look at a prior art challenge, a 102 or a 103 challenge, we have rules for how that has to be applied. [00:36:56] Speaker 04: There's a burden of proof that applies to the challenger. [00:36:59] Speaker 04: It's not like the validity challenges are finding a patent valid forever. [00:37:06] Speaker 04: That's not what happens when you survive a 102 or a 103 challenge, or even when you get a patent out of the patent office. [00:37:12] Speaker 04: And so when you're looking at, even if there is a tension there, I think what's helpful to me is to just focus back at what the actual tests are for 102 and 103 and 101. [00:37:22] Speaker 04: We have case law that explains how to analyze each of those. [00:37:26] Speaker 05: And to realize that- Are you suggesting that when the patent office enacted a regulation and used the words novel and non-obvious, [00:37:34] Speaker 05: that those could have different definitions that the Patent Office otherwise applies in the 102 and 103 context using the same words. [00:37:42] Speaker 05: Are you suggesting that the Patent Office [00:37:45] Speaker 05: meant to adopt some broader or different definition of novelty and non-obviousness in its own regulation regarding CBM than the one that has historically been applied by statute and defined pretty well by case law over many years. [00:37:59] Speaker 04: I think what the PTO was doing when it was defining, those are factors. [00:38:04] Speaker 04: So that's one. [00:38:04] Speaker 04: The other factor in the CBM. [00:38:06] Speaker 04: Wait. [00:38:06] Speaker 04: Is that a yes or a no? [00:38:08] Speaker 04: No. [00:38:08] Speaker 04: I wouldn't say that they were trying to go broader. [00:38:10] Speaker 04: They were trying to figure out what patents Congress is giving them the power to look at. [00:38:14] Speaker 04: That's really what the CBM question is, not is this going to eventually survive. [00:38:18] Speaker 05: Let me make my question really clear. [00:38:20] Speaker 05: Sure. [00:38:20] Speaker 05: Is the definition of novelty and obviousness in the CBM regulation that says it's a technological invention if there is a novel and non-obvious feature, is the PTO bound to apply the same notions and definitions of novelty and non-obviousness that they apply in other sections of the Patent Act? [00:38:44] Speaker 05: Or are they free to use a totally different metric? [00:38:48] Speaker 05: I'm trying to understand precisely what you're telling me the standard is for the PTO's regulations vis-a-vis novelty and non-obviousness. [00:38:55] Speaker 04: Right. [00:38:56] Speaker 04: And so I think my position is that it's a factor that they look at. [00:39:00] Speaker 04: What's a factor? [00:39:01] Speaker 04: The novel and non-obvious technical feature, that part of the PTO's regulation. [00:39:07] Speaker 04: I don't think for them to find a CBM, they have to go through a full novelty and obviousness [00:39:13] Speaker 04: If that's your question, I don't think that's what the regulation means. [00:39:17] Speaker 01: Well, that wasn't the question. [00:39:18] Speaker 01: The question was, are they the same meaning? [00:39:20] Speaker 01: And your answer seems to be you concede they are. [00:39:24] Speaker 04: Yes, I don't think those are terms of art in the patent world. [00:39:27] Speaker 04: I don't think they're saying they mean something different. [00:39:29] Speaker 04: I don't think, however, that they're saying that in order to institute a CBM, they have to conduct that whole analysis of novelty or not. [00:39:36] Speaker 02: I guess the key issue is they have to find a technical feature in the claim. [00:39:40] Speaker 02: And if they don't find a technical feature that's [00:39:44] Speaker 02: a novel, non-obvious advance over the fire art, then it's not a technological invention. [00:39:50] Speaker 04: Right. [00:39:51] Speaker 04: Well, and they spell that out in more detail in the trial practice guide. [00:39:54] Speaker 04: So the regulation is, the court's called it unhelpful. [00:39:58] Speaker 04: The regulation is those two different parts, the novel, non-obvious, technical feature or technical problem to a technical solution. [00:40:04] Speaker 04: But then in the trial practice guide, they go through the kinds of things. [00:40:07] Speaker 04: And when they were writing that, they did look at the legislative history. [00:40:10] Speaker 04: They looked at the kinds of things that Congress was talking about. [00:40:13] Speaker 04: And they list things that won't make it. [00:40:15] Speaker 04: And so to your point, the technical feature. [00:40:17] Speaker 04: The things that don't count as a technical feature is a scanner, a computer, a system, those kinds of things. [00:40:22] Speaker 04: And they're taking that from the legislative history of Section 18. [00:40:26] Speaker 02: I mean, there's, for better or for worse, a lot of different ways to skin this 101 cat. [00:40:32] Speaker 02: And one is looking at it through this lens of novelty, not obviousness. [00:40:35] Speaker 02: But another one is looking at trying to locate the abstract idea and then figure out if they've [00:40:43] Speaker 02: provided in the claims something that can be truly considered an inventive implementation of that abstract idea. [00:40:50] Speaker 02: And here, a new abstract idea, isn't that still an abstract idea? [00:40:57] Speaker 04: Yes. [00:40:57] Speaker 04: Even if an abstract idea is new, it doesn't make a patent of it. [00:41:00] Speaker 02: And then if there aren't really any sufficient details in the claim that can be considered an inventive concept, then even if those limitations in the claims can be [00:41:13] Speaker 02: deemed something that's novel and not obvious over prior art. [00:41:16] Speaker 02: If it's ultimately something the court sees as trivial, then you don't have an event of concept and you don't have a valid claim under 101. [00:41:25] Speaker 04: And that's kind of where I came back to the whole preemption idea, because it's looking at the whole character of the claims and what, I mean the meaning, the courts tell us that preemption is really the step two is making sure there is an impermissible preemption. [00:41:41] Speaker 04: What you're looking for is specifics there. [00:41:42] Speaker 04: And what we have here is something the court has looked at in content extraction and TLI and found that all of the components are known, admittedly. [00:41:51] Speaker 04: And the two things that they have argued, the encryption or the three tier network that's in some of the claims, those have been argued to be the technical features or the meaningful limitations. [00:42:03] Speaker 04: But they're in the prior art, and they're admitted in the patent that the encryption was well known. [00:42:08] Speaker 04: So that's the framework that applies to these. [00:42:10] Speaker 04: And it really follows right along with content extraction or TLI with our analysis there. [00:42:20] Speaker 05: Okay. [00:42:20] Speaker 05: Thank you, Ms. [00:42:21] Speaker 05: Arner. [00:42:21] Speaker 05: Mr. Hurth, I will be liberal with your rebuttal time since Ms. [00:42:25] Speaker 05: Arner went way over. [00:42:26] Speaker 05: Well, not her fault. [00:42:28] Speaker 03: We went way over. [00:42:40] Speaker 00: Thank you, Your Honor. [00:42:42] Speaker 00: I'd like to start where Ms. [00:42:43] Speaker 00: Arner left off on preemption. [00:42:45] Speaker 00: The board's abstract idea is incredibly broad. [00:42:49] Speaker 00: It's transferring information from one place to another using encryption. [00:42:55] Speaker 00: That idea would cover encrypting the information that was scanned on the CD that's described in the prior patent and sending it to the central location. [00:43:06] Speaker 00: These patents instead [00:43:09] Speaker 00: claim a narrow application of that abstract idea, and in particular the three tier claims that weren't addressed by the abstract idea and are a narrow application of just transferring information from one place to another. [00:43:25] Speaker 02: The second piece... But I guess I'm still troubled here because you're trying to tell us that [00:43:35] Speaker 02: If we accept the idea that transmitting data from one place to another place is just an abstract idea, then why is transmitting data from one place to another place and then yet to a third place all of a sudden makes it a great invention? [00:43:53] Speaker 02: I don't see really the meaningful difference between those two. [00:43:57] Speaker 00: Well, I think it has to do with the organization of the network itself. [00:44:02] Speaker 00: So it's similar to BASCOM in the sense [00:44:05] Speaker 00: that even though the components themselves are known, the computers, the new arrangement in Bascom that was moving an internet content filter from a client computer to a server with a user specific account set up with it to do the filtering, the three tiered network in this instance is even though a combination of conventional computers, when used in this environment, provides a narrow [00:44:31] Speaker 00: application and an inventive concept because it allows the, so it's not just one computer, another computer, another. [00:44:40] Speaker 00: If you look at figure one, it's more of a tier and the reason that that's important is if you just have two computers or if they're not connected in that tier, the information that has to be transmitted from the remote locations to the central location has to be polled very often and there's a data overflow problem. [00:45:00] Speaker 00: Whereas in the tiered approach, you can take a bunch of remote data access terminals, pull them more often, and then collect those at intermediate terminals that the central location can then, the central computer that can pull less often to get more information. [00:45:16] Speaker 02: The claims don't say anything about polling, right? [00:45:18] Speaker 02: I mean, the way I look at the claims right now, they recite the idea of linking a remote computer to an intermediate computer [00:45:28] Speaker 02: which is then linked to a central computer. [00:45:32] Speaker 02: I mean, I believe there are some. [00:45:35] Speaker 00: That's what I'm looking at within these independent claims. [00:45:37] Speaker 00: That's correct. [00:45:38] Speaker 00: In the independent claims, that's correct. [00:45:40] Speaker 00: I believe there are some dependent claims that specifically include the polling limitations. [00:45:45] Speaker 05: But did you make that argument to the PTO? [00:45:48] Speaker 05: Did you differentiate those dependent claims with regard to that specific limitation? [00:45:53] Speaker 00: So before the patent office, [00:45:57] Speaker 00: I guess the short answer I would say, I'm not sure on that particular limitation. [00:46:03] Speaker 00: I'd have to look. [00:46:05] Speaker 00: But before the patent office, we did argue each claim that the board aired by using representative claims. [00:46:13] Speaker 00: And it's not as crystallized as I would like in our patent owner's response or at the hearing because our position was that it's ultimately their burden. [00:46:23] Speaker 00: But we expressly put that argument in our rehearing petition. [00:46:28] Speaker 05: Yeah, but you put the argument in. [00:46:29] Speaker 05: But did you delineate why it would be harmful error for the board to do that? [00:46:34] Speaker 05: Because it's one thing to say, no, you can't use a representative claim. [00:46:37] Speaker 05: And it's another thing to say, you can't use a representative claim because look at all these additional limitations in the dependent claim, which I think could [00:46:46] Speaker 05: make a difference. [00:46:47] Speaker 05: Even if you board were going to find we're in trouble with the broadest claim, the narrower claims bring a lot of specificity and avoid the preemption, and et cetera, et cetera. [00:46:57] Speaker 05: Did you make any specific arguments at all as to why different claims could result in different outcomes in this case? [00:47:08] Speaker 00: Yes. [00:47:09] Speaker 00: on our rehearing petition in particular. [00:47:13] Speaker 00: How about before the rehearing petition? [00:47:14] Speaker 00: So before the rehearing petition, at the hearing, we mentioned the difference between the two tier claims with encryption and the three tier claims that don't. [00:47:27] Speaker 00: There weren't dependent claims mentioned. [00:47:30] Speaker 00: Prior to that, our submissions lumped the claims together and said that Fidelity failed to meet its burden, showing that all of the claims are directed towards an abstract idea [00:47:39] Speaker 00: And we focused on the tiered issue, but not any limitations in dependent claims. [00:47:46] Speaker 00: And I believe that there weren't any limitations on dependent claims at the hearing to answer your honor's question. [00:47:56] Speaker 00: But even under the broader view of the two different types of tiered claims, the board's abstract idea of just transferring encrypted information from point A to point B [00:48:08] Speaker 00: is broad enough that the claims we're talking about is one specific narrow implementation of that that is eligible. [00:48:15] Speaker 00: Ms. [00:48:16] Speaker 05: Arner suggested that there was a case of our court, and it may be blue calypso, which I'll have to look at. [00:48:21] Speaker 05: But she suggested that there was a case of our court that stood for the legal proposition that if the PTO finds a single claim in a patent that would qualify as a covered business method, that it is therefore free and has the right to review the patent [00:48:38] Speaker 05: ability of all of the claims of that patent, even if the PTO were to itself conclude that every other claim wouldn't technically qualify under a CBM, she says nonetheless they're authorized to go ahead and do that. [00:48:50] Speaker 05: Do you understand our case law to stand for that proposition? [00:48:53] Speaker 00: I do not. [00:48:54] Speaker 00: I don't believe it was raised in that Blue Calypso case. [00:48:58] Speaker 00: So section 18 does say that the board can institute proceedings if it finds that one claim is eligible for CBM. [00:49:07] Speaker 00: uh... from eligible cbm review uh... to my knowledge that particular provision has not been uh... ruled upon by by this court did you make an argument that it was impermissible to institute cbm here because the board only focused on one claim no we did not so the argument we made was that the claims are directed to it they are technological events we did not we did not challenge that [00:49:38] Speaker 05: Anything further, Mr. Hertz? [00:49:39] Speaker 00: Unless the panel has any further questions about either this issue or a written description which we didn't talk about, I yield the rest of my time and thank you. [00:49:48] Speaker 05: Okay. [00:49:48] Speaker 05: I thank both counsel for their argument that the case was taken under submission.