[00:00:02] Speaker 02: We have five cases on the calendar this morning, four of them patent cases, two from the district courts and two from the PTO, and a government employee case from the Merit Systems Protection Board that is being submitted on the briefs and will not be argued. [00:00:22] Speaker 02: The first case is Jericho Systems versus Axiomatics, 2015-16-56. [00:00:31] Speaker 02: Mr. Fee. [00:00:36] Speaker 00: Thank you, Your Honor. [00:00:38] Speaker 00: May it please the court? [00:00:39] Speaker 00: I'm Kevin Fee, here on behalf of Jericho Systems Corporation. [00:00:44] Speaker 00: The first sentence of the summary of the 836 patent makes clear that the invention is directed to a system to maintain and establish security access policies [00:00:54] Speaker 00: that substantially eliminated many of the problems in the prior art computer-based security access control systems. [00:01:00] Speaker 02: Well, the first sentence might be fine, but why don't we just look at the language of the claims? [00:01:08] Speaker 02: Sure. [00:01:08] Speaker 02: And don't the claims just outline mental steps with a computer added? [00:01:15] Speaker 00: No, Your Honor, I don't think that they are just adding a generic computer to mental steps. [00:01:19] Speaker 00: The claims themselves, as you know, go through a very detailed [00:01:24] Speaker 00: series of steps that provide an improvement over the prior art computer-based access control systems. [00:01:30] Speaker 00: So this isn't an example where you're dealing with somebody saying for the first time, you know, it would be great if we implemented security policies on a computer, and you should just use a computer to do this abstract idea. [00:01:41] Speaker 00: What we have here is we are dealing with problems in prior art computerized, computer-based security access systems. [00:01:49] Speaker 00: And there are specific concrete problems that need to be resolved related to those systems. [00:01:53] Speaker 04: Including problems. [00:01:56] Speaker 04: Once you pass the point of saying, OK, we're going to have an attribute-based excess system, once you make that decision, what are the problems in the field that this claim solves, claim one? [00:02:14] Speaker 00: There are several problems there, Your Honor. [00:02:15] Speaker 00: One of which had to do with trying to resolve issues related to bandwidth and processing power. [00:02:20] Speaker 00: So what the system does is instead of going out and either accepting all the attributes along with the request, or once you're receiving a request, making a search for all the attributes that are required to answer the rule, it first checks the server to make sure that whether or not it has the attribute available at the server already. [00:02:40] Speaker 00: So it doesn't need to go out and make queries that are unnecessary when the information is already present at the server. [00:02:46] Speaker 00: It also separated the information [00:02:49] Speaker 04: could be present at the server in the standard case. [00:02:54] Speaker 04: I thought you were going to tell me that the innovation here is that it essentially outsources some of the attributes through the connectors to some of the other databases. [00:03:06] Speaker 00: Well, what it does is it sets up a system that minimizes the connector requests that are necessary to be made by first making sure that it needs to make that request. [00:03:16] Speaker 04: So there are two different places that the attributes can be stored. [00:03:21] Speaker 04: One would be at the server and another would be out in one of the databases out in the field, so to speak. [00:03:31] Speaker 04: So you have a system that uses both of those. [00:03:34] Speaker 04: Is that the invention here? [00:03:36] Speaker 00: Well, it's not the invention, Your Honor. [00:03:37] Speaker 00: I mean, that's one of the ways that this system went about solving problems related to bandwidth and processing power. [00:03:43] Speaker 00: The invention, obviously, is the entire series of steps that provide other benefits. [00:03:47] Speaker 04: What's innovative here? [00:03:50] Speaker 00: Well, I think it's the combination of all the steps here, Your Honor, that changed the way that computer-based access control systems work. [00:03:56] Speaker 00: It involves, among other things, separating [00:04:00] Speaker 00: the server from the user so that there's no way for the user to corrupt anything that's done at the server. [00:04:07] Speaker 00: And there's a policy enforcement point that's in between the two. [00:04:11] Speaker 00: It develops a system that doesn't require you to use as much bandwidth because it first checks to see if it has the information available at the server. [00:04:19] Speaker 00: It does... We had a list of the five things in our brief that we identified that were improvements. [00:04:28] Speaker 00: Just give me one second here. [00:04:37] Speaker 00: Okay, so it also structured a system by which the user could not directly access the rule to determine whether or not access should be granted. [00:04:45] Speaker 00: Well, there's two sets. [00:04:46] Speaker 00: Yeah, accessing the rule is one thing. [00:04:49] Speaker 00: There's also the retrieving the rule that's specific to a user request. [00:04:53] Speaker 00: So instead of having all the rules present at the server, it goes out and retrieves the specific rule once it knows what is being requested to be done. [00:05:00] Speaker 00: And the benefit of that, among other things, is it makes sure that we're not using stale rules. [00:05:04] Speaker 04: Isn't that inherent in an attribute-based access system? [00:05:09] Speaker 00: No, not necessarily, Your Honor. [00:05:10] Speaker 00: You could have an attribute-based access system that maintains the rules at the server. [00:05:15] Speaker 04: Well, I thought you told me that you might well have the rules in your system at the server. [00:05:23] Speaker 00: I'm sorry. [00:05:24] Speaker 00: I think there's a little bit of confusion what I was talking about earlier then. [00:05:27] Speaker 00: I was talking about whether or not the attributes, user attributes, were present at the server. [00:05:30] Speaker 04: User attributes as opposed to the rules. [00:05:32] Speaker 04: Right. [00:05:34] Speaker 00: OK, so those are two different things, of course. [00:05:37] Speaker 00: And it's important that both those be queried, if necessary, in real time, so you make sure that you're not using stale information. [00:05:44] Speaker 01: Counselor, I was surprised that your initial answer, your first answer to Judge Bryson's question was this notion of preserving bandwidth. [00:05:54] Speaker 01: Is this an argument you've made before? [00:05:56] Speaker 00: Oh, yeah, Your Honor. [00:05:57] Speaker 00: I mean, I could be happy to point to you. [00:05:59] Speaker 01: But is that really one of the goals of the patent? [00:06:03] Speaker 00: Yeah, I think that there were several goals to the patent that all related to solving the problems of the prior computer-based systems, one of which was reducing the processing power and reducing the bandwidth that were required for the system. [00:06:14] Speaker 00: Another one was making sure that there was improved security measures, such as preventing the user from having access to the rules that were required by the server to make any access decisions. [00:06:25] Speaker 02: You're saying that you preserved bandwidth by virtue of the various steps of the claim. [00:06:31] Speaker 00: Yes, that's right, Your Honor. [00:06:32] Speaker 00: In particular, what we've described as claim one step, I think it's E1. [00:06:40] Speaker 00: It requires for each portion of the plurality of attributes, determining whether an attribute value for the attribute is present at the server. [00:06:47] Speaker 00: And like I explained before, that prevents you from making unnecessary queries. [00:06:51] Speaker 02: That's still a little step, isn't it? [00:06:53] Speaker 02: It's still a mental step. [00:06:55] Speaker 02: It's still an abstract idea. [00:06:57] Speaker 00: Well, it's not a mental step. [00:06:58] Speaker 00: You have to check the server to see whether or not you have information present at the server. [00:07:01] Speaker 00: I don't see how that's a mental step, Your Honor. [00:07:03] Speaker 00: It's checking a physical server to determine what information is available there. [00:07:10] Speaker 00: So I do want to talk briefly about a couple of things. [00:07:12] Speaker 01: How much different is that from looking into a filing cabinet to see if the information is there? [00:07:17] Speaker 00: Well, I mean, that's different from a filing cabinet in many ways. [00:07:21] Speaker 00: There's no issue with respect to processing power or bandwidth that you have to worry about when you're dealing with filing cabinets. [00:07:28] Speaker 00: So I think that's the primary difference. [00:07:30] Speaker 00: There are concerns at issue that aren't really present when you're doing a search of a filing cabinet. [00:07:34] Speaker 01: So the only difference is that you're using a computer under the patent? [00:07:38] Speaker 00: No, Your Honor. [00:07:39] Speaker 00: I mean, first of all, I'm just focusing on the one specific element you were talking about there. [00:07:45] Speaker 00: The difference between looking in a filing cabinet for, I guess, examining whether or not an attribute value is present, it would be several things. [00:07:54] Speaker 00: First of all, the user, in that circumstance, would have access to the information that was used to decide whether or not the attribute value was present, and would also be able to then possibly corrupt that information. [00:08:12] Speaker 00: That's the only one that comes to mind right now, Your Honor. [00:08:14] Speaker 00: I do want to touch briefly on a couple. [00:08:16] Speaker 02: What's an abstract idea? [00:08:19] Speaker 02: An idea is something in the mind. [00:08:25] Speaker 02: And that's where the idea of mental steps comes from. [00:08:28] Speaker 00: Right. [00:08:30] Speaker 00: But I think that's a fair general description. [00:08:32] Speaker 02: And sometimes these are implemented manually, like opening a filing cabinet. [00:08:37] Speaker 00: I think the abstract idea is something like you described and is in contrast to a concrete system. [00:08:45] Speaker 00: And I think that's what we have here. [00:08:46] Speaker 00: These claims are very specific in the types of hardware that are present and the algorithms that are used. [00:08:52] Speaker 00: And I think we then have what's deemed to be a special purpose computer for purposes of the Federal Circuit's pressing on the distinction between special purpose computer versus general computer. [00:09:02] Speaker 00: These claims are not implemented on a general purpose computer. [00:09:05] Speaker 00: We provide a very specific algorithm. [00:09:07] Speaker 00: That algorithm is in the claims. [00:09:09] Speaker 00: And it is enough to distinguish our patent from the patents that are found to be non-patentable because they implement an abstract idea on a general purpose computer. [00:09:19] Speaker 00: We don't have a general purpose computer here. [00:09:21] Speaker 00: In fact, the district court even concluded that we met the machine transformation test as a result of that. [00:09:26] Speaker 04: Of course, we've had a number of 101 cases in which you could make the same contention. [00:09:34] Speaker 04: In fact, people have. [00:09:35] Speaker 04: unsuccessfully, where you've had a computer which has been transformed, if you will, per your argument, into a specific, dedicated computer by virtue of the programming that's been done to it. [00:09:51] Speaker 04: But nonetheless, the Court has said, well, this is still an abstract idea. [00:09:55] Speaker 04: And one could say the same thing, I guess, about Alice. [00:09:57] Speaker 00: Well, Your Honor, I think that [00:09:59] Speaker 00: You're right, of course, many people have tried this because it is outcome-determinative, I believe, in this particular case. [00:10:04] Speaker 04: I mean, Alice itself had a computer which had been programmed to perform a very specific task. [00:10:11] Speaker 04: Why isn't that a specific, non-general computer? [00:10:14] Speaker 00: I think the difference between our case and Alice, for example, is the specificity that's provided in our claims. [00:10:20] Speaker 00: Our claims spell out a very detailed set of algorithms that the process goes through in order to decide whether or not [00:10:27] Speaker 00: to allow access to a particular reason. [00:10:29] Speaker 02: Does specificity get away from abstractness? [00:10:32] Speaker 00: Yes. [00:10:32] Speaker 00: That's, I think, you've put it perfectly, Your Honor. [00:10:35] Speaker 04: But ultra-mercial is a case, for example, in which there were a number of steps which were laid out. [00:10:41] Speaker 04: I think seven or eight steps, if I recall correctly. [00:10:44] Speaker 00: Yes. [00:10:44] Speaker 04: You're probably more familiar with it than I am. [00:10:46] Speaker 04: But in that case, the court nonetheless said, [00:10:53] Speaker 04: Multiple steps do not rescue you from abstraction. [00:10:57] Speaker 00: Yeah, I think that the difference between this case and Ultramershal is really the specificity again. [00:11:03] Speaker 00: If you look at what the steps were in the Ultramershal case, they were things like identifying a person who wants access to content. [00:11:12] Speaker 00: It doesn't tell you how to do it, how to implement it. [00:11:14] Speaker 00: That's exactly the opposite of what we have here. [00:11:17] Speaker 00: Our claims tell you in precise detail, step by step, what the computer does. [00:11:22] Speaker 00: And it doesn't just say, you should figure out whether or not this person should be granted access and use a computer to figure it out. [00:11:28] Speaker 00: It says, first, do step one, two, three, four, five with very specific detail, not using really functional language. [00:11:34] Speaker 00: It's very precise in what it requires. [00:11:38] Speaker 01: The court here said, looked at the claim and found a lot of [00:11:43] Speaker 01: technical jargon in the claims. [00:11:46] Speaker 01: And that kind of stripped that out. [00:11:48] Speaker 01: And said that upon closer examination, the gist of the claim. [00:11:52] Speaker 01: Is there a problem with the district court looking to whether claims are directed to a abstract idea by trying to determine what the core, the gist, or the heart of the claim is? [00:12:03] Speaker 00: Well, look, I think I don't want to get too caught up in the terminology. [00:12:06] Speaker 00: I know we did take the district court on for looking for what it described as the heart of the claim. [00:12:12] Speaker 00: I think that the president suggested that's inappropriate. [00:12:15] Speaker 00: But the bottom line is what the district court actually did is really the problem. [00:12:18] Speaker 00: And the district court took these very precise claims and boiled them down to people who meet certain characteristics are entitled to do certain things. [00:12:27] Speaker 00: That is completely divorced from the entire purpose of this invention. [00:12:30] Speaker 01: Is it because that's too simplistic? [00:12:32] Speaker 01: That's one of the results of the claim, but that's not the only one? [00:12:37] Speaker 00: I think the main problem with that is it completely ignores the entire point of this patent. [00:12:42] Speaker 00: As I started off by saying in this oral argument, the patent is clearly directed to solving problems in prior art computer-based access control systems. [00:12:50] Speaker 00: That's what this patent is about. [00:12:52] Speaker 00: And to boil this patent down to people who meet certain requirements are entitled to do certain things. [00:12:58] Speaker 00: completely ignores what motivated this patent, the inventors to come up with this invention, and the entire purpose of this patent. [00:13:04] Speaker 01: Well, why is that? [00:13:04] Speaker 01: Because that's not the abstract idea that the claims are directed to. [00:13:07] Speaker 00: That's right. [00:13:07] Speaker 00: It is not. [00:13:08] Speaker 01: What are the claims directed to? [00:13:11] Speaker 01: If you were to say they're directed to an abstract idea, what would that be? [00:13:17] Speaker 01: And then what are the limitations in the claim that begin to remove you from running a foulest step one of ours? [00:13:25] Speaker 00: I think that, first of all, of course, I don't believe there's an abstract idea. [00:13:28] Speaker 00: But if I was trying to sort of summarize what the claims of the patent cover, I would say that they cover attempts to solve problems associated with computer-based access control systems by using what we describe as a dynamic enrichment process to avoid problems related to bandwidth, processing power, and security. [00:13:48] Speaker 04: Dynamic enrichment process? [00:13:50] Speaker 04: Is that your characterization? [00:13:51] Speaker 00: Yes, your honor. [00:13:52] Speaker 04: And that constitutes? [00:13:55] Speaker 04: as specifically as you can identify, what constitutes the dynamic enrichment process? [00:14:04] Speaker 04: Your Honor, I mean, I could try to summarize it briefly in words, but I think- Yeah, I would let you to summarize it in words, because that's what I'm looking for. [00:14:10] Speaker 00: Sure. [00:14:12] Speaker 00: Let me start by saying that it's depicted in figure four of the patent, which is entitled dynamic enrichment process. [00:14:18] Speaker 00: But what that generally describes is receiving a request to do something to a resource [00:14:25] Speaker 00: then determining a rule for whether or not that access should be granted. [00:14:32] Speaker 00: Once you've obtained the rule, you determine what information is required to assess that rule. [00:14:37] Speaker 00: Once you have the list of required attributes, you determine whether or not you have those attributes already available at the server. [00:14:44] Speaker 00: If you don't have those attributes already available at the server, you make the series of connector requests based upon which connectors have which information, receive the information back from the connectors, [00:14:55] Speaker 00: And then evaluate the rule based on the information retrieved from the connectors and return a decision about whether or not access should be granted. [00:15:01] Speaker 04: Would you agree that if you set aside those limitations that deal with the connectors and the non-server databases that may contain attributes or rule segments, that this claim would fail? [00:15:22] Speaker 00: If we set aside, I'm sorry, I just want to make sure I have a question right here. [00:15:25] Speaker 04: Well, you've emphasized throughout the argument, and in your brief, the portions of the claim that deal with the distributed aspect of this access system. [00:15:37] Speaker 04: That is to say, the connectors to the non-server databases for purposes of attributes and rule. [00:15:46] Speaker 04: If you take those out and you simply say everything resides in the server, [00:15:50] Speaker 04: Is there still a patentable invention in this case? [00:15:55] Speaker 00: That's a tough one for me to answer, Your Honor, because it's so divorced from the entire purpose of this invention. [00:16:01] Speaker 04: Well, it's a good starting point for my way of thinking about this case, because I want to know how much you're relying on those distributed aspects of the claim to get you out from under 101. [00:16:16] Speaker 00: Well, I think that those are important aspects for getting us out from under 101, in part because it makes it something that can't really be done by hand or by the human. [00:16:24] Speaker 04: Can you think of a reason, let me put it this way, can you think of a reason that the claim that I described without the distributed aspects would survive 101 analysis? [00:16:37] Speaker 00: I think that would really depend on how specific the rest of the method was described. [00:16:42] Speaker 00: If it was still a concrete idea. [00:16:44] Speaker 04: Taking those limitations out of your claim. [00:16:47] Speaker 00: But those are, admittedly, the most concrete and specific limitations, what we call sort of the heart of the dynamic enrichment process. [00:16:57] Speaker 00: If you were to strip those out from under our claim, I can't sit in here right now and tell you that I have another basis I could identify that would make this patentable. [00:17:07] Speaker 00: I should have passed my time, Your Honor. [00:17:09] Speaker 02: You've consumed your time. [00:17:10] Speaker 02: We will give you two minutes back for the bottle. [00:17:12] Speaker 00: Thank you, Your Honor. [00:17:13] Speaker 02: Mr. Bell. [00:17:24] Speaker 03: Thank you, Your Honor. [00:17:25] Speaker 03: Judge Lorian, may I please the court? [00:17:27] Speaker 03: I'd like to pick up where the court left off with my friend in two respects. [00:17:32] Speaker 03: Number one, they very clearly, both in the district court and in this court, [00:17:36] Speaker 03: argued that it's inappropriate to look to the heart of the claims. [00:17:39] Speaker 03: And that's just flatly incorrect under this court's case law. [00:17:42] Speaker 03: This court has done it again and again in the Ultramershal case, where there are 11 steps, in Accenture, where there are numerous components, numerous steps, including, I might add, components almost identical to the ones we have here. [00:17:55] Speaker 01: So are you saying that when the court says, I'm looking at the gist of the claims, that that was error? [00:18:01] Speaker 03: No, that was absolutely correct. [00:18:03] Speaker 03: That that's correct? [00:18:04] Speaker 03: That's absolutely correct. [00:18:05] Speaker 01: In Ultramursal, this court actually... You're saying the heart of the claims? [00:18:09] Speaker 01: Can the district court look and try to discern what the heart of the claims is? [00:18:13] Speaker 03: Not only can it, it must, under this court's decision in Ultramursal. [00:18:19] Speaker 01: What's it doing? [00:18:19] Speaker 01: Why would the court do that? [00:18:21] Speaker 01: Is it trying to find whether the claims are directed to an abstract idea? [00:18:25] Speaker 03: Exactly. [00:18:27] Speaker 01: So at that point, the court says, in order for me to answer that question, I must discern what the heart of the patent is or the claim is? [00:18:35] Speaker 03: That's exactly right. [00:18:35] Speaker 03: That's what the Supreme Court did in Alice. [00:18:37] Speaker 03: That's what this court did in Accenture, Ultramershal, Internet Patents Corporation, and a host of other cases since Alice. [00:18:44] Speaker 01: It takes a look at the claim. [00:18:45] Speaker 01: What's the heart of a claim? [00:18:46] Speaker 01: I mean, what are the attributes of a heart or a gist of a claim? [00:18:52] Speaker 03: Well, I think I would direct the court back to the claim in this case. [00:18:55] Speaker 03: I think that's where, as Judge Laurie mentioned, that's where we should start. [00:18:58] Speaker 03: And so looking at this. [00:19:00] Speaker 01: But isn't that a problem? [00:19:01] Speaker 01: Because everything boils down to an abstract idea at some point. [00:19:07] Speaker 03: At some level, yes. [00:19:08] Speaker 01: So at all levels, then, the heart of every claim is abstract. [00:19:14] Speaker 03: I disagree, Your Honor. [00:19:16] Speaker 03: I think you can look at some claims, including ones the Supreme Court has addressed, for example, in the Myriad case, in other cases where there was no suggestion that there was an abstraction involved in those cases. [00:19:26] Speaker 03: So when you're looking, however, at something that can be done mentally, and I think it's very clear, when you look at the steps here, they're claimed contrary to my friend's suggestion, not with any specificity. [00:19:37] Speaker 03: but at a very broad level. [00:19:39] Speaker 03: If you look at what the steps are here, they boil down to five, basically. [00:19:43] Speaker 03: First, receive the request for access. [00:19:46] Speaker 03: Second, consult the rule for access. [00:19:49] Speaker 03: Third, determine what information you need to evaluate the rule. [00:19:53] Speaker 03: Fourth, go out and get whatever information you don't already have. [00:19:58] Speaker 03: And fifth, apply the rule to the information and make the access decision. [00:20:02] Speaker 03: That's exactly what anyone entering a secure building, for example, has to go through. [00:20:06] Speaker 03: That's what I went through today coming in the security line. [00:20:10] Speaker 03: The officers take a look at the rule, the rule being during normal business hours, visitors may enter with a proper ID and without having anything in their bags. [00:20:20] Speaker 02: And they evaluate that. [00:20:21] Speaker 02: Where's the limit of this 101? [00:20:25] Speaker 02: ineligibility issue for abstract ideas. [00:20:29] Speaker 02: If we have a good idea that achieves certain benefits and advantages, are none of these protectable by patents? [00:20:44] Speaker 03: Well, in BySafe, this court said that even if ideas are groundbreaking, brilliant, [00:20:51] Speaker 03: They still, if they're abstract, don't qualify under the patent laws. [00:20:54] Speaker 02: Well, all ideas are abstract. [00:20:56] Speaker 02: I mean, ideas, I keep on using the word. [00:21:00] Speaker 02: An abstract idea is an idea. [00:21:05] Speaker 02: Agreed. [00:21:05] Speaker 02: An idea is something that one conceives mentally. [00:21:09] Speaker 02: One can write it down, but it's basically mental, isn't it? [00:21:17] Speaker 04: The idea in DDR was an idea. [00:21:20] Speaker 04: But it was deemed to be a patentable idea because it was not, as the court concluded, abstract. [00:21:30] Speaker 04: So what is the line? [00:21:32] Speaker 04: I'm asking the same question, really, as Judge Lurie. [00:21:35] Speaker 04: In terms of thinking about, say, Ultramershal versus DDR, what is the line that you think distinguishes abstract ideas from non-abstract ideas? [00:21:48] Speaker 04: as we move through that lens. [00:21:50] Speaker 03: Sure. [00:21:50] Speaker 03: And first, I would want to point out, I disagree with the premise of the question in the following respect. [00:21:56] Speaker 03: DDR, I don't believe held there was no abstract idea. [00:21:59] Speaker 03: Rather, what it said is, under any of the formulations. [00:22:03] Speaker 04: Found that it was patentable. [00:22:04] Speaker 04: It did ultimately find that it was patentable. [00:22:08] Speaker 04: I'll take your point. [00:22:10] Speaker 04: What do you think is the 101 distinction between a DDR type case and a case such as Ultramurch? [00:22:19] Speaker 03: Sure. [00:22:19] Speaker 03: And I'll point to what the court in this court did in DDR specifically. [00:22:23] Speaker 03: First, it looked at whether the claims, as provided, had real world analog. [00:22:30] Speaker 03: It looked for a brick and mortar analog. [00:22:33] Speaker 03: And in that case, it didn't find one because the claims were directed at the problem of being instantaneously transported from one location [00:22:39] Speaker 03: to another location on the internet. [00:22:41] Speaker 03: That didn't occur outside of the internet. [00:22:43] Speaker 01: Brick and mortar in what terms? [00:22:44] Speaker 01: In that it deals with internet or infrastructure? [00:22:49] Speaker 01: Electronic brick and mortar? [00:22:52] Speaker 03: The court looked for a brick and mortar analog to connect it to common human experience. [00:22:58] Speaker 03: So for example, in this case, the common human experience is going through a security checkpoint. [00:23:03] Speaker 02: Are we talking about implementation of an idea? [00:23:07] Speaker 02: When we implement an idea, we're doing something physical, we're transforming. [00:23:14] Speaker 02: The Supreme Court says machine or transformation is a clue. [00:23:18] Speaker 02: I think I meant more than just a clue. [00:23:23] Speaker 03: Well, to your question about the machine or transformation test, I think what you're getting at is [00:23:28] Speaker 03: OK, let's accept that there's an abstract idea here. [00:23:31] Speaker 03: And let's look if there's enough in these claims to transform the nature of the claim into a patent-eligible invention. [00:23:37] Speaker 02: You say transform. [00:23:38] Speaker 02: In other words, implement. [00:23:40] Speaker 03: Exactly. [00:23:40] Speaker 03: Implement it in a specific enough fashion or an inventive enough fashion is what the Supreme Court said. [00:23:46] Speaker 03: And although the machinery transformation test provides a clue, the Supreme Court in Mayo said that that doesn't trump the two-step Alice analysis. [00:23:54] Speaker 03: And in fact, in Alice itself, it never mentioned [00:23:56] Speaker 03: the machine or transformation test. [00:23:58] Speaker 03: So while it may be a clue in some situations, it's certainly inconsistently looked to. [00:24:11] Speaker 04: I'm not sure that the brick-and-mortar analog is the end of the story as to why DDR is different from ultramarcial. [00:24:19] Speaker 03: Thank you, Your Honor. [00:24:20] Speaker 04: There are two ways that... I mean, I can think, for example, in the DDR situation, a brick-and-mortar analog, I have a store, and somebody comes in and says, I'm interested in this and such. [00:24:32] Speaker 04: And I say, well, I know there's another store down the street where they have that. [00:24:36] Speaker 04: I don't happen to have it. [00:24:37] Speaker 04: But I don't want you to go down there. [00:24:38] Speaker 04: Here's their catalog. [00:24:39] Speaker 04: I happen to have their catalog right here, along with the other catalogs of all related stores. [00:24:43] Speaker 04: So why don't you stay here and just look at the catalog? [00:24:45] Speaker 04: That's a brick and mortar analog. [00:24:47] Speaker 03: It is. [00:24:47] Speaker 03: And the court actually considered that specific analog and decided it wasn't like the claims in the following respect, because the claims prevented you from being instantaneously transported to a completely different location. [00:24:59] Speaker 03: And it talked about that situation as still being in the store that you were originally. [00:25:04] Speaker 03: So it didn't provide a close enough analog. [00:25:07] Speaker 03: So that's the first reason that DDR is different. [00:25:09] Speaker 01: Well, in DDR, it turned out that what's happening is that the claims were directed to changing and creating a certain web page, correct? [00:25:19] Speaker 01: And that's an internet or internet-specific problem, one that didn't exist before the advent of the internet. [00:25:27] Speaker 01: In this situation, we're looking at a security system that provides access to databases and ostensibly protects the data, the privacy data of millions and millions of people at one single time. [00:25:40] Speaker 01: Isn't that directed to a specific problem on the internet? [00:25:45] Speaker 01: I mean, we didn't have this privacy data, the target and the federal government disclosures, the hacking. [00:25:52] Speaker 01: None of that existed before the computer. [00:25:55] Speaker 01: This patent appears to be directed towards those type of problems. [00:25:59] Speaker 01: Isn't that specific, similar to DDR? [00:26:04] Speaker 03: No, Your Honor. [00:26:04] Speaker 03: And first, I would point out that none of those characteristics that you just mentioned and that my friend has relied on are actually in the claims. [00:26:11] Speaker 03: When you look at the claims, the claims boil down to a very simple set of steps for achieving access control, the same steps that you would apply in the real world. [00:26:20] Speaker 03: And so for that reason alone, [00:26:22] Speaker 03: DDR has no applicability. [00:26:24] Speaker 03: And I would turn to the intellectual ventures case that this court decided last year where it reached the same conclusion. [00:26:30] Speaker 03: There you had claims for customizing internet web pages by taking user data, user browsing history, combining it, customizing it, and creating a brand new web page, something that was purportedly never done before in that case either. [00:26:44] Speaker 03: And the court realized that there was a real world analog there and said, therefore, DDR doesn't apply. [00:26:50] Speaker 03: So we know DDR only applies. [00:26:52] Speaker 03: if there isn't a real world analog. [00:26:54] Speaker 03: So that's one reason this is different. [00:26:56] Speaker 03: But DDR goes on to have additional requirements. [00:26:59] Speaker 03: It must also, in that case, it changed the internet in a fundamental way, in a way that hadn't been done before. [00:27:05] Speaker 03: So it wasn't just changing something done on the internet or on a computer, as is done here, but it was actually changing the internet or changing the computer itself. [00:27:15] Speaker 03: And so that provides another very clear distinction from DDR. [00:27:20] Speaker 04: I'm sorry. [00:27:20] Speaker 04: I didn't want to cut you off. [00:27:21] Speaker ?: Go ahead. [00:27:22] Speaker 04: Well, address, if you would, the argument that your opposing counsel spent most of his time on this morning, which is the parking, if you will, of the attributes or the rules in non-server databases as a distinction between this and the stripped down version of this invention. [00:27:48] Speaker 04: Certainly, Your Honor. [00:27:49] Speaker 04: It would be simply a bare bones access [00:27:52] Speaker 04: based, or rather attribute-based access system. [00:27:56] Speaker 03: Certainly. [00:27:57] Speaker 03: Two responses to that. [00:27:58] Speaker 03: First of all, that is just a commonplace outgrowth of the abstract idea itself. [00:28:03] Speaker 03: You can imagine somebody to discern. [00:28:05] Speaker 04: How do we know that? [00:28:06] Speaker 03: I think you turn to the common experience that the court looked to in content extraction, looked to in intellectual ventures, just common human experience. [00:28:14] Speaker 04: It may be uncommon in your human experience, but it's not common in mine of knowing that an obvious and everyday phenomenon is parking attributes and rules somewhere else. [00:28:33] Speaker 04: I mean, why is that just so common? [00:28:36] Speaker 03: Well, consider the common example of somebody arriving at the boss's workplace and saying, I would like to see the boss. [00:28:43] Speaker 03: the secretary or assistant calls the boss and says, are you seeing visitors today? [00:28:48] Speaker 03: And the boss might say, only family members. [00:28:51] Speaker 03: So there's the rule. [00:28:52] Speaker 03: The assistant has retrieved the rule. [00:28:54] Speaker 03: Now the assistant is going to apply the rule to decide whether to give the person access. [00:28:58] Speaker 03: So there are many other examples exactly like that one. [00:29:01] Speaker 03: And I would point also, number two, more specifically to this court's decision in Accenture. [00:29:07] Speaker 03: There, you had specific components organized in a specific way that I submit are indistinguishable from the way the servers [00:29:14] Speaker 03: organized here. [00:29:15] Speaker 03: In that case, there was a server. [00:29:17] Speaker 03: There was a separate database. [00:29:18] Speaker 03: It was called a task library database that held the rules separate from the server. [00:29:24] Speaker 03: The server, when it received information from the user, which was also separate, would then go retrieve the rule from the task library database, apply the rule to the characteristics of the information, that's what this court said, and then generate output back to the user. [00:29:40] Speaker 03: So I submit that that is no different from what we have here. [00:29:43] Speaker 04: It sounds like 102, 103, not 101. [00:29:47] Speaker 03: Well, Accenture was a 101 case. [00:29:49] Speaker 04: I know. [00:29:50] Speaker 04: But you're using it. [00:29:53] Speaker 04: But the aspect of Accenture that talks about distributing as showing that this is in the prior art, as I understand what you're saying now. [00:30:04] Speaker 04: I mean, I don't know why that isn't more of 102, 103 argument than a 101 argument. [00:30:09] Speaker 03: Let me clarify, if I could, Your Honor. [00:30:11] Speaker 03: The way Accenture addressed those components in that case was under the rubric of whether they were just generic computer components performing generic computer functions. [00:30:21] Speaker 03: And so those are the exact same functions. [00:30:23] Speaker 04: So you're saying those functions are, Accenture has defined those functions, in fact, as generic computer functions for purposes of any kind of computer implemented invention. [00:30:33] Speaker 03: Precisely, your honor. [00:30:34] Speaker 03: And that's exactly, if you look at all the things that they're relying on, every single one falls under that same rubric. [00:30:41] Speaker 03: as general components, performing general computer functions, things that the Supreme Court has repeatedly, particularly in Alice, found non-inventive, not enough to add an inventive concept. [00:30:53] Speaker 03: And this court, in a dozen cases, since Alice, has held the exact same thing, the exact same type of components, the exact same type of ideas. [00:31:05] Speaker 03: If there are no further questions. [00:31:07] Speaker 02: Thank you. [00:31:07] Speaker 02: Mr. Bell, Mr. Fee has two minutes for a bottle. [00:31:16] Speaker 00: Thank you, Your Honors. [00:31:17] Speaker 00: I'd like to try to squeeze in three quick points, if I may. [00:31:20] Speaker 00: The first is, I think Judge Bryson asked a very important question about how do we know that these things are supposedly commonplace ideas. [00:31:28] Speaker 00: This was decided on a motion for judgment on the pleadings. [00:31:31] Speaker 00: Although the court has granted motions based on 101 before summary judgment and discovery, those cases generally find the basis for the assertion that something is well known or commonly established in the patent itself or the patent prosecution history. [00:31:46] Speaker 00: There's no support for the notion that it was commonplace for access control systems to store some of the information regarding rules and attributes away from the server. [00:31:56] Speaker 00: And for that reason, I think reversal is appropriate. [00:31:59] Speaker 01: Does it matter in this case whether or not the court did not construe any of the claims, any of the terms of the claims? [00:32:09] Speaker 00: Well, I think that depends in part on some of the arguments, whether or not we take some of the arguments from the other side as the basis for [00:32:17] Speaker 00: granting a 101 motion. [00:32:19] Speaker 00: We identified, I think, a couple terms in our briefs that if, for example, they were going to argue that the order of the steps did not matter, that that's a claim construction issue that I think would have to be made before you could assess 101 if you're going to assume that the order of the steps don't matter in this case. [00:32:38] Speaker 00: One quick point I want to make about the abstract idea and how abstract is too abstract. [00:32:43] Speaker 00: I want to really focus something, the court, on page 31 of Axiomatic's brief. [00:32:49] Speaker 00: It says that the heart of Jericho's claims, quote, this is a quote, making access decisions based on user attributes, is precisely the computer activity that this court found non-inventive and ultramarital. [00:33:02] Speaker 00: Well, if we're stripping the claims of so much meaning that patents directed at solving problems in attribute-based security systems are at the same abstract idea [00:33:12] Speaker 00: as using advertising as a form of currency on the internet, then we have really stripped these claims of any real meaning. [00:33:19] Speaker 00: That's going far too far under any precedent in this case, or in this court, or from the Supreme Court. [00:33:25] Speaker 00: One last point I want to make real quickly if I see I'm out of time. [00:33:28] Speaker 02: One quick point. [00:33:29] Speaker 00: Sure. [00:33:30] Speaker 00: I just want to make sure that we also focus on the fact that step one and step two of the Alice test [00:33:35] Speaker 00: work together. [00:33:36] Speaker 00: So if the abstract idea that the district court identified, which is people meeting certain requirements are allowed to do certain things, is the abstract idea we're talking about? [00:33:44] Speaker 00: Then we need to be asking in step two, is this a drafting attempt to obtain a monopoly on that abstract idea? [00:33:53] Speaker 00: And the other side has never wanted to talk about whether or not there's a preemption problem with that, because there is no credible argument that our patent will preempt that abstract idea that persons who have certain characteristics can do certain things. [00:34:05] Speaker 02: Thank you, Mr. P. That certainly was not an abstract argument. [00:34:10] Speaker 02: We'll take the case under advisement.