[00:00:03] Speaker 01:
Our first case for today, 2015-1244, Enfish versus Microsoft.

[00:00:12] Speaker 01:
Mr. Arman, please proceed.

[00:00:21] Speaker 04:
Good morning, and may it please the court.

[00:00:22] Speaker 04:
My name's Orion Arman, partner with Cooley on behalf of Enfish.

[00:00:28] Speaker 04:
I'll address the issue of subject matter eligibility first as that issue

[00:00:33] Speaker 04:
affects every single one of the five claims on appeal.

[00:00:36] Speaker 04:
Before my time expires, I'd also like to reach an issue of first impression regarding the estoppel effect of section 315E2.

[00:00:44] Speaker 04:
Reversal would be appropriate if the court finds for Enfish on the 101 issue and any one of the other issues presented in this appeal.

[00:00:52] Speaker 04:
Turning 101 first, the appeal claims solve a specific technological problem that's unique to computer database technology.

[00:01:02] Speaker 04:
The specification describes the technological problem.

[00:01:05] Speaker 04:
At A218, column 2 of the patent, this is the 604 patent, it states, the structural requirements of current databases require a programmer to pre-define a structure and subsequent data entry must conform to that structure.

[00:01:22] Speaker 04:
This is inefficient where it's difficult to determine the structure of the data that will be entered into the database.

[00:01:30] Speaker 04:
The claimed inventions solved that problem.

[00:01:32] Speaker 04:
Again, at A218, column 2, line 27 to 29, the claims cover a database that does not require a programmer to pre-configure the structure to which a user must adapt data entry.

[00:01:47] Speaker 04:
And the solution that's claimed in the two patents ensued is a single table, self-referential database.

[00:01:54] Speaker 04:
At A221, column 7, line 16 to 23,

[00:02:00] Speaker 04:
It states, new columns may be easily appended to the table 100 by creating a new column definition record.

[00:02:07] Speaker 04:
The new column is then immediately available for use in existing records.

[00:02:12] Speaker 04:
And importantly, the claim single table self-referential structures are recited in each of the five appealed claims.

[00:02:20] Speaker 04:
You'll see those structures described at pages 24 and 25.

[00:02:23] Speaker 02:
Do I understand right that while that's not expressed in claim 17, it's part of the claim construction of claim 17.

[00:02:32] Speaker 02:
And in that one, self-referentiality is actually required for all columns, whereas in the others, just for a single column.

[00:02:40] Speaker 04:
That's correct, Your Honor, and defendants did not appeal the claim construction for that means plus function claim term.

[00:02:47] Speaker 04:
In claim 17, the court found that the means for configuring said memory according to a logical table.

[00:02:53] Speaker 04:
require the self-referentiality.

[00:02:55] Speaker 02:
As to all columns, whereas claims 31 and 32, it just requires it for a single?

[00:03:01] Speaker 02:
Am I remembering that right?

[00:03:03] Speaker 04:
Your Honor, that wasn't an issue that was briefed, and I don't recall specifically.

[00:03:08] Speaker 02:
But the claim language says at least one of said logical rows has an object ID equal to the object ID.

[00:03:18] Speaker 02:
two, I assume I should say, of a corresponding one of set logical columns.

[00:03:24] Speaker 02:
OK.

[00:03:25] Speaker 04:
Yeah, so that issue was not one that was at issue below.

[00:03:30] Speaker 04:
And I don't recall specifically whether in claim 17, the algorithm required every single row and column to have that feature.

[00:03:42] Speaker 01:
Is your argument under 101

[00:03:45] Speaker 01:
primarily on what we'll call the second prong of the Alice test?

[00:03:50] Speaker 01:
Or are you arguing that the lower court was wrong, that sort of either prong of the Alice test is satisfied in this case?

[00:03:58] Speaker 04:
Judge Moore, our view is that the court erred on both prongs of the Alice test.

[00:04:04] Speaker 01:
Well, you only have to win on one of them to prove it.

[00:04:06] Speaker 04:
Correct.

[00:04:07] Speaker 04:
If I can speak briefly to each one, as to Mayo or Alice step one,

[00:04:12] Speaker 04:
Justice Rehnquist first cautioned in Diamond v. Deere that any claim can be generalized or paraphrased to such a high level of generality that there's nothing patent eligible.

[00:04:23] Speaker 04:
In this case, the district court characterized the claimed inventions as the concept of organizing information using tabular formats.

[00:04:33] Speaker 04:
The background of the invention clearly distinguishes other types of databases.

[00:04:38] Speaker 04:
This was a somewhat crowded field of art.

[00:04:41] Speaker 04:
And the appealed claims recite a very specific, single-table, self-referential database structure.

[00:04:47] Speaker 04:
And our view, in light of Justice Rehnquist's guidance in Diamond v. Deer that's been echoed in the other Supreme Court cases, including Mayo and Alice,

[00:04:56] Speaker 04:
is that claim scope plays an important role in ALICE step one, and claim scope at some level needs to be considered when describing the invention.

[00:05:07] Speaker 04:
Our view is that if the district judge had characterized the claimed inventions as a single table self-referential database,

[00:05:16] Speaker 04:
there would have been no need to move to Mayo step two.

[00:05:19] Speaker 04:
However, were the court to accept the district judge's characterization or any one of the defendant's six characterizations regarding the alleged abstract nature of the claimed inventions, at step two, the court should have but failed to grapple with the claimed single table self-referential data structure.

[00:05:40] Speaker 04:
What the district court did after independent research was conclude that tables with header rows were conventional and cited textbooks going back pointing to ancient Sumerians.

[00:05:56] Speaker 04:
There's no dispute that data has been stored in tables.

[00:06:00] Speaker 04:
for thousands of years.

[00:06:02] Speaker 04:
But this case is about claims that require a very particular table structure, a single table, self-referential table structure.

[00:06:10] Speaker 04:
And neither the defendants nor the district judge offered any evidence.

[00:06:13] Speaker 04:
And there is no evidence in the record that that particular structure that solved the problem I identified at the outset of my argument was conventional.

[00:06:22] Speaker 02:
Can I just ask, suppose, I don't think that this is in dispute, but for the

[00:06:31] Speaker 02:
All but claim 17, the self-referentiality is required for just one column.

[00:06:40] Speaker 02:
So why is, let's say, conventionality not apparent when you think about having a table in which all you need is a single column

[00:06:58] Speaker 02:
Or I say, yes, a single column with the same identifier, let's call it, as a single row.

[00:07:07] Speaker 04:
So, Your Honor, I think that that raises an issue where the district judge was confused.

[00:07:12] Speaker 04:
There are two limitations in claim 31 and also dependent claim 32.

[00:07:16] Speaker 02:
Right.

[00:07:17] Speaker 02:
One limitation is the limitation of the flowers.

[00:07:19] Speaker 02:
Don't talk over me.

[00:07:20] Speaker 02:
You cannot talk over me.

[00:07:21] Speaker 02:
I'm sorry, Your Honor.

[00:07:22] Speaker 02:
I agree that there are two separate points separated by and in that piece, but each one of them requires only a single, refers only to a single.

[00:07:36] Speaker 02:
The first one says a single column has to have a row corresponding to it, and the other one says there has to be a row that contains, assuming each means kind of every here, which seems to be the assumption that

[00:07:51] Speaker 02:
Column information about all the columns in a single row So why that does not require the kind of complete?

[00:08:00] Speaker 02:
Self-referentiality that I think the claim construction of claim 17 does in fact require So if you focus just on the limited self-referentiality, that's in claim 31 and 32 Why does that?

[00:08:14] Speaker 02:
satisfy the step to about Your honor and fish's position is that

[00:08:21] Speaker 04:
Because there's no evidence in the record that even a single column defined as a row was conventional at the time that these paths were filed, that it would still satisfy step two.

[00:08:35] Speaker 04:
And so importantly, the district judge focused on the portion of Plan 31 that recites a single row defining all columns, which

[00:08:49] Speaker 04:
for purposes of our argument, can be akin to a hetero.

[00:08:54] Speaker 04:
But what the district court recognized in its claim construction order, and the defendants had also admitted, and of course, is our position, is that it's the next portion of the limitation that requires the object identifier equality.

[00:09:07] Speaker 02:
Actually, the preceding portion.

[00:09:10] Speaker 04:
I'm sorry.

[00:09:11] Speaker 04:
It comes first.

[00:09:12] Speaker 04:
It's that next aspect of the claim that actually requires the self-referentiality.

[00:09:18] Speaker 04:
The district judge had acknowledged that.

[00:09:20] Speaker 04:
I believe that the judge was correct at A266, note 2.

[00:09:26] Speaker 01:
Can you tell me what are the benefits to the computer, the memory, the speed, the efficiency, the retrieval?

[00:09:34] Speaker 01:
What are precisely the benefits that flow from the self-referentiality, which is the claimed novelty of the data structure?

[00:09:45] Speaker 04:
Your Honor, the specification identifies three benefits.

[00:09:50] Speaker 04:
The first benefit that was identified was smaller memory requirements.

[00:09:56] Speaker 04:
Second was faster data access and retrieval.

[00:09:59] Speaker 04:
But the third and the one that I think the most important improvement is the fact that the claimed inventions allow the database to be changed on the fly.

[00:10:11] Speaker 04:
In other words, the database is not static anymore.

[00:10:14] Speaker 04:
It's not a case where you pre-define all of the fields in the database and are then stuck with it and have to literally take the thing down and turn it off to re-architect it.

[00:10:24] Speaker 04:
You are now able to do this, as described in the specification, at any point.

[00:10:30] Speaker 04:
And I see I'm into my rebuttal time, so unless there's more questions, I'll yield.

[00:10:39] Speaker 01:
That's fine.

[00:10:39] Speaker 01:
Mr. Campbell?

[00:10:41] Speaker 00:
Good morning, may it please the court.

[00:10:43] Speaker 00:
My name is Chad Campbell.

[00:10:44] Speaker 00:
I'm here with Ted Wimset.

[00:10:45] Speaker 00:
We represent Microsoft, iServe, Intuit, and Jack Henry.

[00:10:49] Speaker 00:
I'm also joined by Mr. Bill Brown, who represents SAGE.

[00:10:54] Speaker 00:
I'd like to address first the 101 issues and then, time permitting, there are a couple of new items that showed up in the gray brief that I would like to address as well.

[00:11:08] Speaker 00:
Under Section 101, Alice teaches, and this court's precedents also confirm, that the important thing we need to do is to look at what is claimed and whether the claims are recited in an abstract way.

[00:11:25] Speaker 01:
I'd like to focus... I don't think it's... Sorry.

[00:11:27] Speaker 01:
You're going to say the same thing I am, so go ahead.

[00:11:29] Speaker 01:
No, you go.

[00:11:30] Speaker 01:
I don't think that Alice says whether the claims are recited in an abstract way.

[00:11:33] Speaker 01:
Do they?

[00:11:34] Speaker 01:
Doesn't Alice say whether you're attempting to claim an abstract idea?

[00:11:38] Speaker 01:
Yes.

[00:11:38] Speaker 01:
It's not the nomenclature, right?

[00:11:40] Speaker 01:
It's not the lexicography that's the problem if that's too abstract.

[00:11:44] Speaker 01:
That would go to indefiniteness, wouldn't it?

[00:11:47] Speaker 00:
Yes, Your Honor.

[00:11:49] Speaker 00:
What I'd like to address, however, is why here the claims do address and are too abstract under the Alice Test.

[00:12:01] Speaker 00:
Referring first to the self-referentiality, which is the alleged invention

[00:12:06] Speaker 00:
that in Fish says makes this a technological improvement that takes it outside the reach of Alice.

[00:12:13] Speaker 00:
We have claims that simply recite a computer and a memory.

[00:12:20] Speaker 00:
They're generic.

[00:12:21] Speaker 00:
There's nothing specific about them.

[00:12:23] Speaker 00:
Once we get beyond that, we're not even limited to a database.

[00:12:28] Speaker 00:
The claims simply say that you need a computer and a memory that's going to store and retrieve information.

[00:12:34] Speaker 00:
It could be a database, but it also could be any kind of a... I mean, the claims are not directed at hardware.

[00:12:41] Speaker 02:
They're directed to a way in which computers can function better.

[00:12:47] Speaker 02:
In particular, just to focus on software.

[00:12:51] Speaker 02:
self-referentiality, an organization of information stored in the usual way in a computer where there's no necessary relation between the physical location of bits of memory, magnets, call them, and the logical relation of what's stored.

[00:13:15] Speaker 02:
with this self-referentiality, structure to the internal organization of the information.

[00:13:22] Speaker 02:
Why is that, to take in Alice two-step terms, why is that directed to an abstract idea as opposed to an improved way of, an improved functioning of the computer?

[00:13:39] Speaker 00:
The improvements that are identified in the specification are threefold.

[00:13:43] Speaker 00:
They include smaller memory requirements, faster search times, and more flexibility.

[00:13:50] Speaker 00:
Those improvements come from something that's taught in the specification, allegedly.

[00:13:57] Speaker 00:
But it does not translate into the claims.

[00:14:00] Speaker 00:
And if I could just walk the court through why that's so, to directly answer the question, I would take you first to column one, where the patent teaches what was wrong with relational databases.

[00:14:13] Speaker 00:
In a relational database, if we were to do a database of the court, for example, we would have many tables.

[00:14:18] Speaker 00:
We'd have a table for the judges.

[00:14:20] Speaker 03:
Let me ask you this.

[00:14:21] Speaker 03:
If you were the first person to come up with the idea of relational databases, and you claimed them in a fairly good degree of detail, is that patent eligible?

[00:14:33] Speaker 03:
It would certainly be a very different case from this one.

[00:14:36] Speaker 02:
I think I at least need a better answer than that.

[00:14:40] Speaker 02:
Look, you know perfectly well that there is tremendous uncertainty about what constitutes an abstract idea.

[00:14:49] Speaker 02:
Most of our cases and all of the Supreme Court cases have been about objects of the claims that are easily distinguished from this one.

[00:15:01] Speaker 02:
The object of this claim is a kind of software improvement in computer functionality.

[00:15:08] Speaker 02:
It is something like a fresh question for us.

[00:15:11] Speaker 02:
At least personally speaking, I need help and understanding.

[00:15:14] Speaker 02:
how to think about the Supreme Court abstract idea concept when the whole point from beginning to end of the claim is an improved internal process in the computer using completely old hardware.

[00:15:35] Speaker 00:
I would take the court to the Forsonic case.

[00:15:39] Speaker 00:
In that case, claim 17

[00:15:43] Speaker 00:
recites a series of steps that eventually lead you to coming up with a price.

[00:15:48] Speaker 00:
However, nested within those limitations are some data structures.

[00:15:53] Speaker 02:
But that's one of the cases, like almost all of our post-Alice cases, in which it's perfectly easy to say that the object of the claim was the creation of legal intangibles, which is contractual relations to people.

[00:16:06] Speaker 02:
We don't have that.

[00:16:07] Speaker 02:
So I'd like to put those cases aside.

[00:16:10] Speaker 02:
I don't think

[00:16:11] Speaker 02:
Tell me if I'm wrong that we have a case that is specifically about internal processes of a computer using old hardware that make the computer function better for function better.

[00:16:28] Speaker 00:
With respect, I would still invite the court to look at Persata and look at claim 17.

[00:16:34] Speaker 03:
But Persata is about basically a business method that was very, very typical

[00:16:40] Speaker 03:
and could have been done on the street.

[00:16:43] Speaker 03:
And what Versado's patent did was make it work faster and better on a computer, but it didn't improve the computer.

[00:16:50] Speaker 03:
I mean, I think that case, I agree with Judge Shrunda.

[00:16:54] Speaker 03:
That case is of very little relevance to us here, because what we're trying to decide, and that's why I ask you about the relational databases, is whether those are something specific to the computer world that are novel and are patentable.

[00:17:10] Speaker 03:
as opposed to things like pricing or guarantees for online purchases and things like that, which had hundreds of years of history in some instances of being done just person to person and were somehow done quicker or in a different way on a computer.

[00:17:29] Speaker 03:
These type of databases I don't see as having been done

[00:17:34] Speaker 03:
prior to the computer world.

[00:17:37] Speaker 03:
So can you give me another try on if you have the prior art relational databases, not in some very general sense of using tables with tabs and columns on a computer, because that seems abstract to me, but defined in a certain way of X number of databases working relationally in a certain way, the way the prior art works.

[00:17:59] Speaker 03:
Why wouldn't that be patent eligible?

[00:18:05] Speaker 00:
If we had a relational database and you were claiming the relational database techniques, you would be far less abstract than the claims are here.

[00:18:14] Speaker 00:
And if I could just have the court indulge one comparison to relational databases and the claims here, it would be this.

[00:18:23] Speaker 00:
The claims or the specification teaches that the benefit that you get from this invention is to leave all of the relational database rules aside.

[00:18:33] Speaker 00:
Instead of having many tables,

[00:18:35] Speaker 00:
or you try to cram like things together, you are supposed to throw everything into a single table, a single logical table.

[00:18:44] Speaker 00:
Any kind of record can go in there.

[00:18:47] Speaker 00:
And therefore, it's going to be a sparse matrix.

[00:18:49] Speaker 00:
You're not going to try to pack everything in like a relational database would.

[00:18:53] Speaker 00:
So it's a new kind of database.

[00:18:55] Speaker 00:
The specification suggests that it's different than a relational database.

[00:19:00] Speaker 00:
And the question then becomes, we think this is the critical question,

[00:19:05] Speaker 00:
Is that teaching part of the claims?

[00:19:09] Speaker 00:
We suggest the answer is no for two reasons.

[00:19:12] Speaker 03:
Well, let's, I think, I'm not sure, you can answer that, but I'm not sure I agree with you on that.

[00:19:18] Speaker 03:
It does seem that there's enough in the claims, particularly the self-referentiality, to at least bring in what's in the specification.

[00:19:27] Speaker 00:
So, there's two reasons.

[00:19:29] Speaker 00:
The claims say you need a table.

[00:19:32] Speaker 00:
We know from the court's precedents that a table means two or more.

[00:19:37] Speaker 00:
For example, let's say we had a relational database structure for the court here, and we had 1,000 tables.

[00:19:43] Speaker 00:
And all we did was to take one of those 1,000

[00:19:46] Speaker 00:
and change it to be a table like what's in the claims, so that we have 999 relational tables.

[00:19:53] Speaker 03:
This doesn't sound at all like an eligibility argument to me.

[00:19:56] Speaker 03:
It sounds like you're going someplace entirely different than 101.

[00:20:00] Speaker 00:
All I'm saying is that the assumption underlying the court's question that self-referentiality as taught in the patent with a single table, a single table that holds all of the data, is not a requirement of the claims.

[00:20:17] Speaker 00:
It says a table.

[00:20:19] Speaker 00:
And therefore... Why is that a 101 argument?

[00:20:21] Speaker 00:
I mean, that sounds like a written description argument.

[00:20:25] Speaker 00:
It's a 101 argument because the claims are done at an abstract level.

[00:20:29] Speaker 00:
You can have one or more tables.

[00:20:31] Speaker 00:
You just need one table with a couple of columns and a couple of rows.

[00:20:35] Speaker 03:
OK.

[00:20:35] Speaker 03:
This is not being very helpful to me.

[00:20:38] Speaker 03:
So let's just assume I don't agree with your reading of the claims.

[00:20:41] Speaker 03:
I find that the claims actually specifically incorporate

[00:20:45] Speaker 03:
one database with self-referentiality.

[00:20:48] Speaker 03:
Why isn't that a new database that is patent eligible under 101?

[00:20:55] Speaker 00:
The question then becomes, with that assumption, what are you asking the computer, which is admittedly generic, to do?

[00:21:03] Speaker 00:
And here, the computer is being asked to do things that people can do.

[00:21:11] Speaker 00:
A person could take

[00:21:13] Speaker 00:
data and organize it into two columns and two rows and have those rows be self-referential in the manner in which the claim is taught and therefore... I get that.

[00:21:26] Speaker 03:
I see and I do think that like Versata in some of those cases if all you do is take some kind of method that's done and do it on a computer because it works faster and better that that's ineligible and I see some aspect of that here but I also see

[00:21:43] Speaker 03:
your friend's argument that this doesn't just do that, it improves the way the computer itself operates.

[00:21:48] Speaker 03:
It takes less memory.

[00:21:50] Speaker 03:
It makes the database work better.

[00:21:54] Speaker 03:
And so to me, this is not solely a case about taking something and doing it better on a computer.

[00:22:00] Speaker 03:
It's making the computer work better, too.

[00:22:02] Speaker 03:
So I still don't understand, assuming I read the claims in a more specific way than you do, why that's not enough under Alice.

[00:22:12] Speaker 03:
The brunt of your argument is seeming to lead to the suggestion that computer software is just not patentable at all.

[00:22:21] Speaker 03:
That is not our position.

[00:22:23] Speaker 03:
That computer software is not patentable.

[00:22:25] Speaker 03:
So let me ask you this hypothetical thing.

[00:22:27] Speaker 03:
Do you think that the invention in the specification would be patentable if claimed properly?

[00:22:37] Speaker 00:
If claimed properly, you certainly could have a patent.

[00:22:40] Speaker 00:
How would you do it here?

[00:22:43] Speaker 00:
You could start first by claiming exactly what was taught in the specification.

[00:22:50] Speaker 00:
That would be a good start.

[00:22:52] Speaker 00:
And you would need to get to something that you need to claim the invention from the point of view of what was different and new

[00:23:03] Speaker 00:
that made the computer better, faster, and stronger, instead of claiming something that a person could do outside the context of a general purpose computer.

[00:23:12] Speaker 00:
That would make a difference.

[00:23:14] Speaker 00:
It makes a difference under the court's precedence.

[00:23:16] Speaker 00:
And here, again, the specification teaches something.

[00:23:21] Speaker 00:
It suggests that you're going to get benefits if you have a single, very large table.

[00:23:26] Speaker 00:
The patent claims just talk about a computer and a table, which could be one or more.

[00:23:32] Speaker 00:
You might follow the requirements of the claim limitations for one of your tables but not for others and therefore miss the benefits entirely.

[00:23:40] Speaker 00:
The claims reach that far because they're drafted in an abstract way and that's what leads us into the ALICE problem.

[00:23:54] Speaker 00:
If I could just, I see that my time is running.

[00:23:58] Speaker 00:
There is a suggestion

[00:24:02] Speaker 00:
in the estoppel portion of the blue brief and in the gray brief that Microsoft and the other defendants should be, or Microsoft rather, should be estopped because the anticipation motion that was submitted to the district court could have relied on a publication reference for XL 5.0 instead of what we actually did.

[00:24:27] Speaker 00:
What we did, and this is reflected in the court's decision,

[00:24:30] Speaker 00:
below is to submit live software to the court in a manner that the court could load and look at.

[00:24:36] Speaker 03:
If we disagree with you and the district court on the anticipation issue, we don't have to decide whether this estoppel would apply or not, do we?

[00:24:45] Speaker 00:
That is correct, Your Honor.

[00:24:50] Speaker 00:
We did, however, submit live software.

[00:24:53] Speaker 00:
It was an on sale argument.

[00:24:55] Speaker 00:
That's what the court analyzed our evidence under.

[00:24:58] Speaker 00:
It wasn't a printed publication argument at all.

[00:25:00] Speaker 00:
So estoppel wouldn't apply.

[00:25:03] Speaker 01:
Let me be clear about one thing.

[00:25:04] Speaker 01:
Do we have to decide the estoppel issue anyway?

[00:25:08] Speaker 01:
Because you've got summary judgment on a question of fact.

[00:25:13] Speaker 01:
And if we concluded that there existed a genuine issue of dispute that should have gone to a jury on that question of fact, estoppel is still a live issue below, isn't it?

[00:25:22] Speaker 00:
Yes.

[00:25:23] Speaker 00:
On remand, it would be a live issue.

[00:25:24] Speaker 00:
It's still a live issue.

[00:25:27] Speaker 01:
But the district court hasn't addressed the stop all at this point.

[00:25:32] Speaker 00:
No, the judgment was entered before the PTAB finished the written decision, so there wouldn't have been a reason for the district court to address that at all.

[00:25:42] Speaker 00:
My time has expired.

[00:25:44] Speaker 01:
Okay, thank you.

[00:25:47] Speaker 01:
Mr. Armand, we have some rebuttal time.

[00:25:51] Speaker 04:
Thank you, Your Honor.

[00:25:52] Speaker 04:
If I may first, I'd like to turn back to a question that Judge Toronto asked.

[00:25:57] Speaker 04:
I'm sorry I wasn't prepared to answer earlier.

[00:25:58] Speaker 04:
At A2520, you'll find the description of the... That's Exhibit 19.

[00:26:07] Speaker 04:
Yes, Your Honor.

[00:26:08] Speaker 04:
Exhibit 19, this is the...

[00:26:11] Speaker 04:
source code algorithm for claim 17 for me, for creating me watching the table.

[00:26:17] Speaker 02:
What I was looking in on page 8.325 of the appendix, which is the section 101 opinion, in the discussion of 101 on claim 17, the district court has a four-step algorithm that the court said was covered by

[00:26:33] Speaker 02:
means for configuring, and number three is for each column, store information about that column in one or more rows, et cetera, rendering the table self-referential.

[00:26:44] Speaker 02:
That's what I was thinking of, because that has a higher degree of self-referentiality than appears in claims 31 and 32.

[00:26:52] Speaker 04:
Yes, Your Honor.

[00:26:53] Speaker 04:
That's what we asked for.

[00:26:54] Speaker 04:
That's what we got.

[00:26:56] Speaker 04:
We agree.

[00:26:57] Speaker 04:
If I may briefly touch on two other issues relating to 101.

[00:27:02] Speaker 04:
With respect

[00:27:03] Speaker 04:
Defendant's position regarding the single table or a table being multiple tables has changed.

[00:27:11] Speaker 04:
The defendant's claim construction brief is one of many places that A508 said that the invention required a single table.

[00:27:20] Speaker 04:
The position now is a table could mean any number of tables.

[00:27:23] Speaker 01:
When he says the invention requires a single table, isn't that really referencing what he thinks the invention is as disclosed by your specification?

[00:27:33] Speaker 01:
I don't remember reading that position as a claim.

[00:27:39] Speaker 01:
Maybe he was arguing that the claims ought to be limited to a single table because that's the only thing you disclose.

[00:27:47] Speaker 04:
Your Honor, you're right.

[00:27:48] Speaker 04:
I'd be speculating to guess whether that was where the defendants were going.

[00:27:52] Speaker 01:
I would also note, however, that at eight years- Why aren't the claims, as he suggested, way broader than what you disclosed?

[00:28:01] Speaker 01:
What you've characterized for us really feels like something that's patent-eligible.

[00:28:05] Speaker 01:
And your opposing counsel nearly admitted it, which I thought was very genuine of him to do.

[00:28:11] Speaker 01:
He said, listen.

[00:28:12] Speaker 01:
This would be a very different case if what was claimed was actually the invention that you people are all talking about, the thing disclosed in the spec.

[00:28:21] Speaker 01:
But the claims certainly feel quite a bit broader, which is not unusual and not necessarily going to be your undoing.

[00:28:28] Speaker 01:
But why don't you address that argument?

[00:28:30] Speaker 01:
Why aren't these claims a lot broader than what is, in fact, the thing that is the true invention that you want us all to be focusing on?

[00:28:40] Speaker 04:
Your Honor, I would point you to page 24 in our blue brief.

[00:28:44] Speaker 04:
The language in the specification is very direct and strong in characterizing the invention.

[00:28:53] Speaker 03:
Well, that's the problem, though.

[00:28:54] Speaker 03:
The specification is very clear about it being one single table, but the claims don't say that.

[00:29:00] Speaker 03:
Do you agree that the claims are limited to one table?

[00:29:04] Speaker 04:
No, we do not.

[00:29:05] Speaker 04:
I believe that the language in the specification is limiting, Your Honor.

[00:29:09] Speaker 01:
No, you don't agree that the claims are limited, but you do believe the specification is limiting.

[00:29:14] Speaker 04:
No, I misspoke.

[00:29:15] Speaker 04:
I'm sorry.

[00:29:16] Speaker 04:
We believe that the claims are limited to a single table database.

[00:29:21] Speaker 04:
I apologize if I butchered that.

[00:29:28] Speaker 04:
I'd like to turn to the issue of estoppel and my minute that I have left.

[00:29:34] Speaker 04:
It's significant to this case.

[00:29:36] Speaker 04:
to the extent that the panel reaches the estoppel issue, that the defendant sought leave to brief some re-judgment on Excel as a 102G issue.

[00:29:48] Speaker 04:
However, Enfish had extensive thousands of pages of evidence of conception and reduction of practice, diligent reduction of practice.

[00:29:56] Speaker 04:
And we would have sworn back of Excel if they had presented it as 102G art.

[00:30:01] Speaker 04:
So they pivoted after the court gave them permission to brief the issue.

[00:30:05] Speaker 04:
and presented it as 102B art.

[00:30:08] Speaker 02:
Prior use?

[00:30:10] Speaker 02:
I mean, public use?

[00:30:11] Speaker 02:
Is that what it was?

[00:30:12] Speaker 04:
Or was it on sale?

[00:30:14] Speaker 02:
On sale.

[00:30:15] Speaker 04:
It was on sale and substantiated with virtually only publications, user guide materials and other materials.

[00:30:22] Speaker 04:
Now, we can see it in the briefing that the materials also included some source code.

[00:30:27] Speaker 04:
But it's also significant that in the IPRs, Microsoft used one of its other products, Visual Basic,

[00:30:34] Speaker 04:
to support its IPR challenges.

[00:30:36] Speaker 04:
We think remand is appropriate for fact findings on whether or not they reasonably could have raised Excel in the same way.

[00:30:43] Speaker 04:
Thank you, Your Honors.

[00:30:45] Speaker 01:
Okay, I thank both counsels.

[00:30:46] Speaker 01:
The case is taken under submission.

[00:30:47] Speaker 01:
Our next case for today