[00:00:53] Speaker 00:
OK, the next argued case is number 16, 1267, GT Nexus Incorporated against Intra Incorporated.

[00:01:02] Speaker 00:
Mr. Lyons.

[00:01:03] Speaker 00:
Good morning, Your Honor.

[00:01:06] Speaker 02:
The patents that were found indefinite, or I'm sorry, were found ineligible in this case, are the bedrocks on which Intra has built the world's largest shipping portal.

[00:01:18] Speaker 02:
One out of every four container shipments is booked on their portal.

[00:01:23] Speaker 02:
Over the first half of this year, more than 18 million bookings were made.

[00:01:29] Speaker 02:
In a single year, 180 million status messages are provided to the public.

[00:01:34] Speaker 03:
What you're telling us is that the claim is economically important, but you're not telling us yet why it's not abstract.

[00:01:43] Speaker 02:
Well, the question, let's start with Alice, step one.

[00:01:46] Speaker 02:
And the reason it's not abstract, Your Honor,

[00:01:48] Speaker 02:
is that it solves a technical problem.

[00:01:51] Speaker 02:
And that's why it's been so successful in the marketplace.

[00:01:53] Speaker 02:
And that's why it's changed the industry.

[00:01:55] Speaker 02:
In this case, the district court expressly adopted and applied the wrong standard.

[00:02:02] Speaker 02:
She applied the Enfish district court standard for identifying what the claims are directed to, which she described.

[00:02:09] Speaker 02:
She quotes from that case.

[00:02:11] Speaker 01:
This is judgment on pleadings.

[00:02:12] Speaker 01:
This doesn't really make a difference exactly what the district court said, right?

[00:02:17] Speaker 02:
Well, this is a de novo review, Your Honor.

[00:02:20] Speaker 02:
So yeah, the key here is where the district court ended up.

[00:02:23] Speaker 02:
And where she ended up was finding the claims directed to a concept of just a general purpose of intermediated booking and tracing of shipping containers.

[00:02:35] Speaker 02:
And what that formulation ignored was the problem that solved, what the patent identifies as the specific problem

[00:02:45] Speaker 02:
that was the subject of the patent.

[00:02:47] Speaker 02:
And if you look at the arguments that were presented here, GT Nexus maintains this is just booking and tracking containers.

[00:02:54] Speaker 02:
People were doing it manually.

[00:02:55] Speaker 02:
The invention is doing it on the internet.

[00:02:58] Speaker 02:
But if you look at the patent, it says that's the problem.

[00:03:02] Speaker 02:
The patent, if you look in column one, it talks about how the carriers were already doing intermediated booking and tracking through online portals.

[00:03:12] Speaker 02:
And they were doing it using incompatible systems.

[00:03:15] Speaker 02:
And you had a computer network problem where these incompatible systems didn't function with one another.

[00:03:21] Speaker 02:
And so shippers were confronted with a situation where they had to try to interface with incompatible networks.

[00:03:28] Speaker 02:
This is a networking case.

[00:03:29] Speaker 02:
That was the problem, as the patent refers to this in column one.

[00:03:33] Speaker 01:
The abstract idea of making the systems compatible within the first step of VALS.

[00:03:42] Speaker 02:
Well, the idea of, it's much like the case, the situation in Enfish, where the district court said, this is just data storage and retrieval, and that's generic by any measure.

[00:03:57] Speaker 02:
Here, when you look at the claims as a whole, and you start looking at the elements, you see there are novel elements built into the claims, this pre-building, where the data was collected in advance of any request for the data.

[00:04:12] Speaker 02:
so that it could be translated into a common neutral format in a centralized database that's built into the claims.

[00:04:19] Speaker 02:
And that's a technical solution to a network problem, which is very different from simply saying, oh, people were doing this manually, and it would be better to do it on the internet.

[00:04:31] Speaker 02:
This is a technical problem.

[00:04:33] Speaker 02:
And that aspect, this pre-building concept, is exactly what the patent office said it was allowing the claims for.

[00:04:40] Speaker 02:
This patent has been subject to nine, the four patents have been subject to nine separate post-grant patent off challenges.

[00:04:47] Speaker 02:
Five of them went to the end on the merits, and the Patent Office confirmed that this was a novel technical advance.

[00:04:55] Speaker 02:
Didn't decide the 101 issue, right?

[00:04:56] Speaker 02:
No.

[00:04:56] Speaker 02:
The 101 issue was not decided there.

[00:04:59] Speaker 02:
They did not do it.

[00:05:00] Speaker 02:
But they found that this was a novel technical solution to this.

[00:05:05] Speaker 02:
And much like Endfish, where it solved a computer problem by coming up

[00:05:10] Speaker 02:
with a data tabulation system that solved a computer problem, this solved the incompatible carrier networking problem.

[00:05:21] Speaker 02:
It fixed a problem that the technology was not able to solve.

[00:05:27] Speaker 02:
And what's interesting, I think, and unique about this case, much different than the other cases that have been before this court on this issue, is there is a large, well-developed body of evidence

[00:05:39] Speaker 02:
that the ideas here were not abstract.

[00:05:43] Speaker 02:
They were solutions to computer problems.

[00:05:47] Speaker 02:
You've got expert testimony, not only from an intras expert, but confirming testimony from GT Nexus' expert.

[00:05:54] Speaker 02:
You've got evidence from the prior art that was considered.

[00:05:59] Speaker 02:
And all of it points in the same direction.

[00:06:01] Speaker 02:
So whether you look at this as a step one analysis, which I think makes sense here, because it's very much like McRoe.

[00:06:07] Speaker 02:
It's very much like Enfish.

[00:06:09] Speaker 02:
where you're solving a computer problem, this incompatibility problem, with a technological solution.

[00:06:14] Speaker 02:
So I don't think you get to step two in this case because of that.

[00:06:19] Speaker 02:
But if you do accept the district court's evaluation, that this is directed to an abstract idea, when you get to step two and you're looking at the individual elements and you're looking at them as an ordered combination,

[00:06:33] Speaker 02:
What you find is that this is anything but routine or conventional.

[00:06:38] Speaker 02:
Let's look at what the actual technical evidence said.

[00:06:41] Speaker 02:
This is the evidence which, by the way, the court, with a wave of her hand, completely discarded.

[00:06:46] Speaker 02:
She simply announced that the legal issues presented lends itself to resolution without resort to extrinsic evidence.

[00:06:53] Speaker 02:
So she announced, I will not look at any of the evidence that bears on the question of whether it truly is conventional

[00:07:01] Speaker 02:
ordinary practice.

[00:07:03] Speaker 02:
Now what the undisputed evidence said was that there was no such shared multi-carrier platform in existence.

[00:07:10] Speaker 02:
No one had managed to build this thing that was supposedly routine and conventional.

[00:07:16] Speaker 02:
There's no doubt that it was novel, given the number of times the Patent Office has now looked at it.

[00:07:21] Speaker 01:
They've identified the specific technical features.

[00:07:25] Speaker 02:
No, they're not the same thing, but I think they do inform each other to some extent.

[00:07:31] Speaker 02:
What's also in dispute in this case, which is very unusual, is that those in the field believed that the technical solution here, pre-building a database with incompatible character data, was not workable.

[00:07:45] Speaker 02:
Intra's expert testified to that.

[00:07:48] Speaker 02:
The industry believed that in order for a shared system to even work, each individual system had to communicate using the same message format.

[00:07:55] Speaker 02:
The prior art that was

[00:07:57] Speaker 02:
examined during the patent office, acknowledged that.

[00:08:00] Speaker 02:
In order to make EDI, that's electronic data interchange, work, all parties had to use a shared format.

[00:08:07] Speaker 02:
And GT Nexus's expert concurred when asked, would you agree that in the late 90s, that's the time when this invention was being developed?

[00:08:16] Speaker 02:
As this reference said, and she read to her was this reference in GITUS, which I just quoted about how

[00:08:25] Speaker 02:
for EDI to even work, you all have to use the same format.

[00:08:28] Speaker 02:
She agreed.

[00:08:29] Speaker 02:
Yeah.

[00:08:30] Speaker 02:
Then she went through and was asked, well, are there advantages to doing it, not the way the prior art did it, but the way the technical solution that was the focus of the patents, where you pre-build the database, you collect the information before it's requested, you translate it.

[00:08:46] Speaker 02:
She said, yes.

[00:08:47] Speaker 02:
This is GT Nexus' expert said, yes.

[00:08:50] Speaker 02:
The data would be more accessible.

[00:08:53] Speaker 02:
Fewer steps are required to obtain the information, more fault tolerant.

[00:08:57] Speaker 02:
And in her words, she said it would be, quote, better than a system where the data had not been pre-gathered in this way.

[00:09:04] Speaker 02:
So my suggestion to this court is when you have something that's a novel, one of a kind, first of its kind solution to a technical problem, this incompatible network problem,

[00:09:18] Speaker 02:
It operates in a way that was believed, everybody agrees, was believed wouldn't work, couldn't work.

[00:09:23] Speaker 02:
But they did it anyway.

[00:09:25] Speaker 02:
And it allowed them to realize all these advantages over the existing system.

[00:09:31] Speaker 02:
That's not routine.

[00:09:33] Speaker 02:
That's not conventional.

[00:09:35] Speaker 02:
And the court only got to its conclusion otherwise by explicitly saying she would not consider any of the evidence that demonstrated her conclusion was wrong.

[00:09:45] Speaker 02:
And what was the basis for her conclusion?

[00:09:47] Speaker 02:
She just announces in the decision, without any real explanation, that pre-storing status information constitutes pre-solution activity incidental to the performance of the abstract idea.

[00:09:59] Speaker 02:
She said it amounts to nothing more than conventional data storage, which is not even arguably inventive.

[00:10:04] Speaker 02:
But as all the evidence showed, this was inventive.

[00:10:07] Speaker 02:
This was not conventional.

[00:10:08] Speaker 02:
This is not how any of the systems were working.

[00:10:10] Speaker 02:
They weren't pre-building.

[00:10:12] Speaker 02:
This was the antithesis of what you would think you would do.

[00:10:14] Speaker 02:
If somebody wants data,

[00:10:16] Speaker 02:
You'd wait for a request.

[00:10:18] Speaker 02:
You'd go out to the carrier networks to collect that information.

[00:10:22] Speaker 02:
And they turned that routine and ordinary process on its head.

[00:10:27] Speaker 02:
Said, no, we're going to collect everything in advance so that we can translate it and organize the data.

[00:10:33] Speaker 02:
With regard to translation, she similarly dismissed that without any real explanation, simply saying, the claims do not disclose a novel translation method, however.

[00:10:44] Speaker 02:
and thus contemplate routine computer functions.

[00:10:47] Speaker 02:
This is much like the Bascom case.

[00:10:49] Speaker 02:
In Bascom, the court recognized that the internet filtering technology that was the subject of the patent was well known.

[00:10:58] Speaker 02:
But the invention there deployed that technology in a unique way to solve a problem, where they took that and, as the court said, filtering content on the internet was already a known concept, just like translating is here.

[00:11:11] Speaker 02:
But in that case,

[00:11:12] Speaker 02:
The patent describes how its particular arrangements of elements is a technical improvement over the prior art.

[00:11:18] Speaker 02:
That's just like in the intro case.

[00:11:20] Speaker 02:
And the court further noted in Bascom that the claims carve out a specific location for the filtering system, a remote ISP server, and require the filtering system to give users the ability to customize filtering.

[00:11:33] Speaker 02:
That's very much like the facts here, where the patent identifies a specific location to gather the data,

[00:11:41] Speaker 02:
a specific timing for gathering the data, for using the translation technology.

[00:11:47] Speaker 02:
All of that comes together and coalesces as the inventive concept here in this case.

[00:11:52] Speaker 02:
And it solves a problem that isn't a commercial problem.

[00:11:57] Speaker 02:
It's not a commercial problem to say that all of the carriers have developed incompatible systems and are creating irreconcilable systems.

[00:12:05] Speaker 02:
That wasn't a problem that existed,

[00:12:08] Speaker 02:
until the carriers took their systems online.

[00:12:13] Speaker 02:
And I'll reserve the rest of my time, Your Honor, unless there's some further questions.

[00:12:17] Speaker 00:
Thank you.

[00:12:18] Speaker 00:
We'll hear from the other side.

[00:12:20] Speaker 00:
Mr. Feldman.

[00:12:24] Speaker 04:
May it please the court.

[00:12:27] Speaker 04:
It's a pleasure to be here.

[00:12:28] Speaker 04:
It was hard to get a hotel room.

[00:12:29] Speaker 04:
The IMF is in town.

[00:12:32] Speaker 04:
And I want to thank the panel and the court

[00:12:35] Speaker 04:
for not issuing any more 101 decisions yesterday that I had to stay up late reading.

[00:12:42] Speaker 04:
There have been enough since Labor Day that we can talk about.

[00:12:47] Speaker 04:
What I wanted to do with the court's permission is address three things.

[00:12:52] Speaker 04:
First, I wanted to clear the procedural underbrush.

[00:12:55] Speaker 04:
Counsel mentioned the judge waving her hand and discovering everything.

[00:12:59] Speaker 04:
I'm going to talk about that for a minute.

[00:13:03] Speaker 04:
What I think is the precedent of this court that is the most relevant here, because there are a lot to pick from.

[00:13:10] Speaker 04:
And then I'd like to take a quick review of your post Labor Day jurisprudence, including the affinity twins last week.

[00:13:20] Speaker 00:
Well, that's a good agenda.

[00:13:23] Speaker 00:
And we'd like to know all of this.

[00:13:25] Speaker 00:
But would you also comment on your friend's view that the inventive concept here is not in any particular step

[00:13:33] Speaker 00:
but in the combination of putting them all together.

[00:13:37] Speaker 04:
Yes.

[00:13:38] Speaker 04:
As Judge Dyke pointed out, this is de novo review.

[00:13:42] Speaker 04:
But I think that the district court addressed that by reviewing the patents both claim by claim and in their totality.

[00:13:51] Speaker 04:
This was not one of those cases where the judge came up with a caricature of the invention.

[00:13:57] Speaker 04:
Here we went claim by claim as well as in the totality.

[00:14:01] Speaker 04:
If I heard him correctly, and I'm trying to be fair, the invention, the big change here that he talked about was EDI.

[00:14:10] Speaker 04:
I call it the Tower of Babel problem.

[00:14:13] Speaker 04:
The different shippers, EDI is well known.

[00:14:16] Speaker 04:
You've decided many electronic data interchange patents.

[00:14:20] Speaker 04:
And what Intra says, both in their papers and I think primarily the argument, was what we did, we weren't just using a computer and a server and a network.

[00:14:31] Speaker 04:
But we were able to translate these different languages into one.

[00:14:37] Speaker 04:
And to me, that's the heart of the appeal.

[00:14:40] Speaker 04:
So if the court looks at the specifications, there are three specifications, not claims.

[00:14:47] Speaker 04:
I'll get to the claims in a minute.

[00:14:49] Speaker 04:
There are three specifications that address that.

[00:14:52] Speaker 04:
The first is that Appendix 15740.

[00:14:58] Speaker 04:
at four lines 61 to 63.

[00:15:02] Speaker 04:
And what the patent says is, quote, server 108 processes EDI messages by validating the data when called by server 107 and translating the data into the common carrier system layout format.

[00:15:19] Speaker 04:
That's it.

[00:15:20] Speaker 04:
The other two specifications are similar.

[00:15:23] Speaker 04:
A15741 at 6, line 7 to 9, quote, alternatively, the common carrier system 103 may translate the user's request from one form or format into one understood by the carrier or carriers 103, close quote.

[00:15:46] Speaker 04:
And the last specification is that A15745 at 13,

[00:15:53] Speaker 04:
lines 8 to 10, quote, EDI translator translates carrier event codes and message formats into a common carrier system neutral format, close quote.

[00:16:07] Speaker 04:
So that's sort of in line with what Council said, that the invention here wasn't intermediate, intermediated, booking and tracing a freight.

[00:16:18] Speaker 04:
It was translating the common languages.

[00:16:22] Speaker 04:
But as you see from their specimens.

[00:16:23] Speaker 00:
He said that it was in the combination of all of these steps.

[00:16:27] Speaker 00:
He did.

[00:16:27] Speaker 00:
And it tells us that there is no reference, no prior art, which combines all of the steps which they have combined.

[00:16:39] Speaker 00:
We haven't really gotten to the question of, we were looking under Section 101 for an inventive concept.

[00:16:46] Speaker 04:
Yes, we are, Your Honor.

[00:16:47] Speaker 00:
The court didn't get to the question of whether it also met the requirements

[00:16:52] Speaker 00:
the other requirements of patentability.

[00:16:55] Speaker 00:
So I think it would be helpful to respond to that particular issue.

[00:17:00] Speaker 04:
Yes, Your Honor.

[00:17:01] Speaker 04:
So the specifications don't tell you how to do it.

[00:17:04] Speaker 04:
Perhaps the claims do.

[00:17:06] Speaker 04:
There are four claims in the suit, but I'm sorry, four patents in the suit.

[00:17:11] Speaker 04:
But among those four patents, which have a lot of claims, there are three dependent claims that are on point, which should have what Your Honor is looking for.

[00:17:21] Speaker 04:
that translation component.

[00:17:24] Speaker 04:
It's not enough to say you should translate.

[00:17:27] Speaker 04:
As Alice said, you can't just say put it on the internet and do it.

[00:17:32] Speaker 04:
You have to specify how that function will work.

[00:17:36] Speaker 00:
But you're not saying that the code needs to be included as to how it works?

[00:17:42] Speaker 04:
No, of course not.

[00:17:43] Speaker 04:
But if you look at appendix 15678 to 79, there are three dependent claims.

[00:17:51] Speaker 04:
These are all from the 387 patent.

[00:17:54] Speaker 04:
The other patents don't even mention doing the EDI, the translation.

[00:17:59] Speaker 04:
Those claims recite, quote, wherein storing container tracking and tracing information further comprises translating the received container tracking and tracing information into a common carrier system

[00:18:19] Speaker 04:
neutral format," close quote.

[00:18:22] Speaker 04:
Under any reading of Alice step two, in all of this court's precedents, that isn't enough.

[00:18:31] Speaker 04:
This is not a difficult line drawing case.

[00:18:34] Speaker 04:
It's not one of the cases like Bascom or Macro or Enfish where you're changing something about how computers work.

[00:18:43] Speaker 04:
Here, they specify function.

[00:18:45] Speaker 04:
They say, you need to translate

[00:18:48] Speaker 04:
different EDI, the Tower of Babel, back into one common language.

[00:18:54] Speaker 04:
But they don't suggest any function beyond the abstract.

[00:18:58] Speaker 04:
And that's why, whether you look at the claims collectively or individually, they don't cut it.

[00:19:05] Speaker 04:
If I've addressed your Honor's question, let me turn to the procedural underbrush.

[00:19:11] Speaker 04:
There's a lot of reference about discovery.

[00:19:13] Speaker 04:
There was no claim construction sought below.

[00:19:16] Speaker 04:
There was no request for any discovery below.

[00:19:20] Speaker 04:
The appellant did submit an expert declaration.

[00:19:23] Speaker 04:
We didn't.

[00:19:24] Speaker 04:
And as you know, this is one of those rare circuit of location issues.

[00:19:31] Speaker 04:
In the Ninth Circuit, once the case arose, the decision not to include evidence and a motion for judgment on the pleadings is a matter of discretion.

[00:19:42] Speaker 04:
I think it's what counsel referred to.

[00:19:43] Speaker 04:
She waved her hand.

[00:19:45] Speaker 04:
I think it's a little more elegant to say she exercised her judicial discretion.

[00:19:50] Speaker 04:
What the court said at A4, quote, given that the legal issue presented lends itself to resolution without resort to extrinsic evidence, the court exercises its discretion to exclude matters outside the pleadings

[00:20:11] Speaker 04:
and treat the motion as one brought under Rule 12C," close quote.

[00:20:16] Speaker 04:
That's proper under Ninth Circuit law, but even better yet, it's proper under your law.

[00:20:22] Speaker 04:
The mortgage grader decision at pages 13, 25 to 26 in Councilsworth waved away the expert declarations on both sides and said, this is a legal issue.

[00:20:34] Speaker 04:
We don't need some guys opining on the legal issue.

[00:20:38] Speaker 04:
Better yet, last week in the affinity twins, this court explicitly upheld the district court's decision to disregard expert declarations regarding the innovative nature of the patents in conducting 101 analysis.

[00:20:55] Speaker 04:
That was in DirecTV at star 7 and Amazon at star 3.

[00:21:00] Speaker 04:
Let me go with my greatest hit.

[00:21:02] Speaker 04:
There are so many decisions to pick from, I think,

[00:21:06] Speaker 04:
Electric power group against Alston, which the court decided on August 1, is the closest.

[00:21:12] Speaker 04:
And I don't know if any of the judges on this panel were on it.

[00:21:15] Speaker 04:
I did this before I knew who the panel was, so I'm not shopping.

[00:21:20] Speaker 04:
The representative patent claimed there was claim 12 of the 710 patent.

[00:21:26] Speaker 04:
And it described a network comprised of many different entities sending different kinds of information indecipherable by humans.

[00:21:35] Speaker 04:
The information is interpreted, stored, synthesized, analyzed, then displayed.

[00:21:40] Speaker 04:
The key feature of those patents was the ability to turn information of different types and from many different sources into a, quote, humanly comprehensible amount of information, close quote.

[00:21:54] Speaker 04:
With respect to ALICE step one, this court and electric power group said this is just a combination of abstract

[00:22:02] Speaker 04:
idea processes.

[00:22:04] Speaker 00:
Well, all of these cases turn on their specific facts.

[00:22:08] Speaker 00:
They're analyzed on their facts.

[00:22:10] Speaker 00:
Whether there is an abstract idea under ALICE step one, whether there's an inventive concept under step two, is highly fact-specific.

[00:22:20] Speaker 00:
And I still would appreciate some guidance on the particular point as to why the combination of steps does not

[00:22:30] Speaker 00:
meet the criteria of Alistair 2.

[00:22:34] Speaker 04:
Yes, it is true, as Justice Stewart said, that the court knows it when it sees it.

[00:22:39] Speaker 04:
But that does not mean, respectfully, Your Honor, that this court can issue different decisions every day, depending who the panel is, and that it's just fact-specific.

[00:22:49] Speaker 00:
We don't have exactly identical facts.

[00:22:53] Speaker 00:
If we had this, we wouldn't have gotten through the Patent Office to start with.

[00:22:57] Speaker 04:
The Patent Office, Your Honor.

[00:22:59] Speaker 04:
I'm sorry, I didn't mean to interrupt you.

[00:23:00] Speaker 04:
The Patent Office in the covered business review here rejected all four patents.

[00:23:08] Speaker 00:
They granted the patent?

[00:23:11] Speaker 04:
They granted the patent pre-ALICE.

[00:23:14] Speaker 04:
In post-ALICE, they initiated proceedings to reject all four patents.

[00:23:20] Speaker 04:
But that was wiped out.

[00:23:21] Speaker 04:
That's not evidence before you.

[00:23:23] Speaker 04:
But when you're on.

[00:23:23] Speaker 03:
Judge, Newman was asking about a combination of methods.

[00:23:28] Speaker 03:
Is it your view that a combination of abstract steps is still abstract?

[00:23:33] Speaker 03:
Yes, Your Honor.

[00:23:35] Speaker 04:
Yes, Your Honor.

[00:23:36] Speaker 04:
As the court said in Electric Power Group in step two, it found, quote, that nothing in the claims understood in light of the specification

[00:23:50] Speaker 04:
requires anything other than off-the-shelf conventional computer network and display technology for gathering, sending, and presenting the desired information."

[00:24:03] Speaker 04:
Close quote.

[00:24:04] Speaker 04:
That's a star five.

[00:24:06] Speaker 04:
Your court then said, quote, the result-focused functional character of claim language has been a frequent feature of claims held ineligible under Section 101.

[00:24:19] Speaker 04:
especially in the area of using generic computer network technology to carry out economic transactions.

[00:24:26] Speaker 00:
Except that not all of the steps here were previously performed, perhaps because the technology didn't exist in the past of the evolution of programming skills and internet capacity, and all of the other steps which have allowed and facilitated

[00:24:48] Speaker 00:
and really taken us to the Alice situation in such a variety of cases.

[00:24:55] Speaker 00:
So we need to understand how and why, in this particular case, it fails the Alice test.

[00:25:04] Speaker 04:
There's no one I would less like to agree with than Judge Newman.

[00:25:07] Speaker 04:
But I must respectfully disagree with what you just said.

[00:25:11] Speaker 04:
Every step here, collectively and individually, was known.

[00:25:17] Speaker 00:
Things like... But they weren't combined.

[00:25:20] Speaker 00:
And there wasn't, until now, technology with the capability of combining them.

[00:25:26] Speaker 00:
And one of the concerns for all of these cases is where, in fact, is the inventive step when the technology proceeds because of other advances in science.

[00:25:41] Speaker 04:
I think, Your Honor, it sounds like you didn't like the Alice position.

[00:25:46] Speaker 04:
because the items in Alice hadn't been combined either.

[00:25:50] Speaker 04:
And the Supreme Court said just combining all this on the internet doesn't do it.

[00:25:56] Speaker 04:
Absolutely you would be right if they had invented and claimed and specified the Rosetta Stone, a new way of translating different EDI from diverse sources into one language.

[00:26:15] Speaker 04:
the oral language, the language in the Garden of Eden before the expulsion.

[00:26:21] Speaker 04:
But the reason I began by showing you the three specifications and the three claims is they do nothing of the kind.

[00:26:30] Speaker 04:
So your honors observation would be highly valid where there was an inventionist to one of those.

[00:26:38] Speaker 04:
But smushing them all together fails Alice.

[00:26:42] Speaker 04:
And it fails this court's decisions

[00:26:45] Speaker 04:
not just in electric power, but last week alone, two affinity labs in intellectual ventures against Symantec were very comparable to this case.

[00:26:58] Speaker 04:
So although I don't think I'm capable of coming up with a golden rule for ALICE step two, I think candidly even this court has sometimes struggled with it.

[00:27:08] Speaker 04:
But if one wanted to approach it, it might be

[00:27:12] Speaker 04:
that where you invent something new in how the computers work, that may be enough.

[00:27:19] Speaker 04:
But here, we're not even close to that.

[00:27:22] Speaker 04:
The three specifications and the three claims say, let's take these different pieces and translate them.

[00:27:30] Speaker 04:
But they don't tell you how to do that.

[00:27:32] Speaker 00:
Thank you, Your Honor.

[00:27:36] Speaker 00:
OK.

[00:27:37] Speaker 00:
Thank you, Mr. Feldman, Mr. Lyons.

[00:27:40] Speaker 02:
Thank you, your honor.

[00:27:44] Speaker 02:
The technical problem confronting the industry was a massive amount of data with millions of containers moving.

[00:27:52] Speaker 01:
So you have the idea of a neutral language, but where is it that you say how to do it?

[00:28:00] Speaker 01:
It's just an idea of doing it.

[00:28:03] Speaker 01:
It doesn't tell you how to do it.

[00:28:06] Speaker 02:
Right.

[00:28:07] Speaker 02:
The invention here isn't just the idea of translation.

[00:28:11] Speaker 01:
It's the idea... That would be abstract, do you agree?

[00:28:14] Speaker 02:
If it was just translate, yes, that would be abstract, I agree.

[00:28:18] Speaker 02:
The idea here is how you construct your network.

[00:28:21] Speaker 02:
As I said, everyone agreed, their expert agreed.

[00:28:24] Speaker 02:
It was believed that you couldn't build a single network.

[00:28:28] Speaker 02:
That's what's described here, where you're pulling in the incompatible data from all the sources.

[00:28:35] Speaker 01:
The question is not whether you could do it.

[00:28:37] Speaker 01:
The question is whether this patent tells you how to do it.

[00:28:41] Speaker 01:
other than telling you to use conventional computer components?

[00:28:46] Speaker 02:
Well, the patent is very specific, much like the case in Bascom, where the patent told you, take a conventional internet filter, just like take a conventional translation mechanism.

[00:28:58] Speaker 02:
And here's where I want you to put it in your network.

[00:29:01] Speaker 02:
In the Bascom case, they said, I want you to put it at the ISP, not on the computers, for the individual users, because that's a much more difficult way to administer it.

[00:29:10] Speaker 02:
And I want you to make it configurable for each of the users.

[00:29:15] Speaker 02:
And by arranging it in that way, they solved a problem in the technological arts.

[00:29:21] Speaker 02:
The same here was when you took this translation capability, you combine it with this idea that, no, we're going to actually pre-request.

[00:29:29] Speaker 02:
I noticed counsel talked about translation, but did not talk about the idea that was the focus in the patent office.

[00:29:36] Speaker 02:
And they said it was novel, was this idea of pre-building.

[00:29:39] Speaker 02:
And while through hindsight that might seem like something that was just an abstract idea, here people specifically believed at the time that that was technically not feasible.

[00:29:50] Speaker 02:
The patent taught you could and should do it.

[00:29:54] Speaker 02:
And you should collect this data in advance.

[00:29:56] Speaker 02:
And the translation was a part of that, that it realized by putting it like that filter in Bascom, by putting it in a central location, by being this hub where if the hub could communicate with everyone,

[00:30:07] Speaker 02:
the fact that the users of the system couldn't communicate with each other didn't matter.

[00:30:12] Speaker 02:
And that was really the technological innovation that overcame the problem.

[00:30:16] Speaker 02:
And this had, I started the discussion by talking about this is a real world case because this did change how the markets function.

[00:30:24] Speaker 02:
This did change the technology that was being deployed in the shipping industry because before this patent, people didn't know how to do this.

[00:30:33] Speaker 02:
Once this patent laid out

[00:30:34] Speaker 02:
a methodology for structuring the network.

[00:30:38] Speaker 02:
It didn't create every building block.

[00:30:40] Speaker 02:
It didn't invent filtering like in Bascom.

[00:30:44] Speaker 02:
It didn't invent translation.

[00:30:46] Speaker 02:
But it did describe a technological solution, which was in organizing the network in a certain way and deploying the technology in an appropriate way to solve a technological problem, which was these incompatible networks.

[00:31:02] Speaker 02:
And I think this is what, just like in other cases like Enfish, where they said, look, this is a computer problem.

[00:31:10] Speaker 02:
This is a solution to a computer problem.

[00:31:12] Speaker 02:
That's what the patent system is for.

[00:31:14] Speaker 02:
We want to encourage innovation in solving those technical problems.

[00:31:18] Speaker 02:
The fact that it's deployed in a context that has commercial ramifications shouldn't inhibit the ability to get patents.

[00:31:26] Speaker 02:
It should encourage it further.

[00:31:29] Speaker 02:
Thank you, Your Honors.

[00:31:30] Speaker 00:
Thank you.

[00:31:31] Speaker 00:
Thank you both.

[00:31:32] Speaker 00:
The case is taken under submission.