[00:00:09] Speaker 00:
Our next case today is 2015-1890, Combi Corporation versus Newgar.

[00:01:00] Speaker 00:
Mr. Gilliland?

[00:01:02] Speaker 02:
Yes.

[00:01:03] Speaker 00:
Please proceed.

[00:01:04] Speaker 02:
Good morning.

[00:01:06] Speaker 02:
Imagine if I brought to the podium a device that I attached to the microphone, then whenever I spoke through the microphone, my voice would come out sounding like that of James Earl Jones.

[00:01:17] Speaker 02:
Imagine further that I could push a button on that device, and it would start playing a recording of the mellifluous voice of Mr. Jones saying, may it please record, my name is, then I would

[00:01:30] Speaker 02:
interrupt it, and I would interject in my own voice, James Gilliland, and I represent Appellant Nogar.

[00:01:37] Speaker 02:
But you would hear those words, but you would hear them coming through in a voice that sounded like James Earl Jones, because my voice matching technology, using bandwidth filters and impedance matching, allowed the seamless interleaving of live voice forms and recorded voice forms.

[00:01:58] Speaker 04:
I looked through all the claims of the two patents and I didn't see this notion of voice matching that you're leading your argument off with in any of the 387 or 510 claims.

[00:02:13] Speaker 04:
What I saw, for example, with the 387, you just gave me your conception of claims.

[00:02:17] Speaker 04:
Now I'm going to give you my conception of the 387 claims.

[00:02:20] Speaker 04:
These are method claims.

[00:02:22] Speaker 04:
And so what I'm imagining is my grandmother in California living in this big retirement

[00:02:29] Speaker 04:
And now there's a boiler room, telemarketing boiler room somewhere else in California.

[00:02:34] Speaker 04:
Maybe 300 people are sitting there in cubicles.

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And their assignment is to hit this retirement community hard.

[00:02:42] Speaker 04:
Call every single one of those people until they pick up the phone.

[00:02:46] Speaker 04:
And then there's a guy in a cubicle that makes contact with my grandmother.

[00:02:51] Speaker 04:
And he's got 10 tape recorders set up in front of him.

[00:02:54] Speaker 04:
And then after my grandmother says hello,

[00:02:57] Speaker 04:
He hits the play button on tape recorder number one.

[00:03:01] Speaker 04:
And then after he elicits a response from grandma, then the telemarketing agent decides, based on what he's hearing, to hit play for tape recorder number two or number three.

[00:03:14] Speaker 04:
And based on what he hears next from grandma, then he can choose whether to hit the play button for tape recorder four, five, or six, and then so on.

[00:03:24] Speaker 04:
That's what I heard.

[00:03:27] Speaker 04:
or read when I looked at claim one of the 387 patents?

[00:03:32] Speaker 02:
Well, Your Honor, that sounds more like the Noble patent than the NOGAR patents.

[00:03:36] Speaker 02:
And I would suggest that if the district court had done a claim-by-claim analysis, as you are suggesting, then it would have found that in the dependent claims, there's much more specificity.

[00:03:47] Speaker 02:
And that if you drill down into the claim language, which is what we are saying that needed to be done, then you will see that the

[00:03:58] Speaker 02:
the seamless interleaving of live voice.

[00:04:01] Speaker 04:
We can talk about the dependent claims, but just to clarify, I didn't see anything in your opposition to the other side summary judgment motion or any arguments by your side during the hearing, the summary judgment hearing, where your side, the patentee, was arguing for and expressing an interest in having a claim by claim analysis or suggesting in any way that the claims that

[00:04:28] Speaker 04:
that the other side raised as being essentially the representative claims for deciding the case were the wrong claims to be looking at.

[00:04:37] Speaker 04:
And then there were other claims that had interesting inventive concepts that were not really captured by the representative claims chosen by the other side.

[00:04:46] Speaker 02:
Is that fair to say?

[00:04:47] Speaker 02:
It is fair to say that at the district court level there was very little discussion of the claim language itself.

[00:04:55] Speaker 02:
And it is also accurate that

[00:04:58] Speaker 02:
Uh, both sides talked about this at a very high level, but I would submit to the court that it is not the obligation of the patentee to seek a claim by claim analysis.

[00:05:08] Speaker 02:
That is what the law requires since each claim is presumed valid, uh, individually.

[00:05:14] Speaker 02:
And unless the parties stipulate to the use of a representative claim, which did not occur here.

[00:05:19] Speaker 04:
So there were, there were four patents originally in this case, right?

[00:05:22] Speaker 04:
And let's say there were 200 claims.

[00:05:25] Speaker 04:
118.

[00:05:25] Speaker 04:
118.

[00:05:27] Speaker 04:
for across four patents.

[00:05:29] Speaker 04:
Are you saying that in this particular case, Cambia needed to write a brief for explaining for each of the 118 claims why each one was invalid under 101, and then the district court judge would have to write an opinion with separate little subsections on all 118 claims?

[00:05:53] Speaker 04:
Well, I think that practically speaking, we've seen maybe 20 opinions from this court since Alice and I haven't seen an opinion that went through all of that.

[00:06:05] Speaker 02:
Well, and that's true that I looked at them as well and I did not find that, but that's usually because the district court did require the parties to select a representative claim or claims.

[00:06:17] Speaker 02:
And then that is where the argument proceeded.

[00:06:20] Speaker 02:
That did not occur here.

[00:06:22] Speaker 02:
which is why we filed our motion for reconsideration, pointing out this issue.

[00:06:26] Speaker 03:
Why didn't you point it out the first time?

[00:06:30] Speaker 03:
I mean, if your opponent files a motion saying these patents are invalid because they claim an abstract idea X, that has to be read as saying every single claim is based upon abstract idea X.

[00:06:45] Speaker 03:
It's certainly their burden to show immolidity, but if they're alleging that there's no genuine dispute, don't you have to then respond and say, there may be a genuine dispute as to one or more, or you waive your right if you just respond in general.

[00:07:01] Speaker 02:
Well, we did identify in the trial court and response to summary judgment, a number of individual claims.

[00:07:08] Speaker 02:
And none of those were addressed separately by the court in its decision.

[00:07:13] Speaker 04:
There was something in your opposition brief where you described some of the individual claims, but then when it came to actually arguing why any of the claims were patent eligible, then in the argument section what I saw was the patent owner just arguing them all together in a single basket under a single theory.

[00:07:37] Speaker 02:
Well, as I said, I concede that there was not a deep drill down into the claim analysis at the district court level.

[00:07:46] Speaker 04:
Why doesn't the content extraction kind of decide this particular issue in the sense that there were a couple claims that were chosen as the representative claims to evaluate the validity of all the claims, and the district court ultimately found that those

[00:08:07] Speaker 04:
chosen claims to be invalid.

[00:08:09] Speaker 04:
And then the patent owner argued that, well, there needed to be a claim by claim validity analysis.

[00:08:18] Speaker 04:
And this court issued an opinion saying, well, that could have been raised below.

[00:08:26] Speaker 04:
There was an opportunity to address that by the patent owner requiring the district court

[00:08:33] Speaker 04:
or to identify and explain why each and every claim was invalid.

[00:08:38] Speaker 04:
But the patent owner never brought that up when the opportunity was there.

[00:08:43] Speaker 02:
So in this instance, Your Honor, what happened was that the patent owner relied on the presumption of validity for each claim.

[00:08:53] Speaker 02:
And we did identify individual claims in the first round of briefing.

[00:08:58] Speaker 02:
But then when we saw that there was no claim by claim analysis,

[00:09:02] Speaker 02:
We filed our motion for reconsideration.

[00:09:04] Speaker 02:
And we specifically asked for the district court to rehear this issue so that we could select representative claims so that we could drill down into the claim language.

[00:09:14] Speaker 02:
But the court denied that, saying that it was not obligated to do so.

[00:09:20] Speaker 00:
But tell me why it wasn't harmless error for the district court to do that.

[00:09:23] Speaker 00:
Point me.

[00:09:24] Speaker 00:
to a dependent claim in the 510 patent, for example, that you think, if that had been analyzed separately, it had the following elements, which clearly, for example, demonstrate and claim the voice synthesizing technology I opened my argument with, or something like that.

[00:09:43] Speaker 00:
Show me why it isn't harmless error, what you're complaining about.

[00:09:47] Speaker 00:
And tell me, what claim would you like me to look at?

[00:09:50] Speaker 00:
I'll look at any claim you'd like me to look at.

[00:09:52] Speaker 00:
Go ahead.

[00:09:53] Speaker 02:
For the voice synthesizing technology, I'd ask the court to look at the 387 patent.

[00:09:58] Speaker 00:
Oh, OK.

[00:10:00] Speaker 02:
And I would ask that we remember that the district court was supposed to look at the claims as informed by the specifications.

[00:10:07] Speaker 02:
So I'm going to start with the abstract of the 387, which says... No, I don't want to start with the abstract.

[00:10:12] Speaker 00:
I want you to give me a claim.

[00:10:14] Speaker 00:
Your complaint is that the district court failed to separately analyze dependent claims.

[00:10:19] Speaker 00:
even if I think you're right about it, you have to demonstrate it wasn't harmless error in this case for him to have treated them all as representative.

[00:10:27] Speaker 00:
So which claim?

[00:10:28] Speaker 02:
Claim 18.

[00:10:30] Speaker 00:
Claim 18, which is the method of Claim 16, that one in the 387.

[00:10:35] Speaker 00:
The method of Claim 16 wherein deciding on

[00:10:38] Speaker 00:
intervention further comprised, providing a live voice response.

[00:10:42] Speaker 00:
Okay, so that's not the voice synthesis that you referred to, providing a live voice response.

[00:10:47] Speaker 02:
Right, but it relates back to claim one.

[00:10:49] Speaker 00:
It relates back to 16, interleaving, further comprises, deciding on intervention.

[00:10:56] Speaker 00:
That also is not the voice synthesis.

[00:10:59] Speaker 00:
And now let's go back to claim one because it's dependent to 16 and now to one.

[00:11:03] Speaker 02:
And claim one refers specifically to the interaction protocol.

[00:11:09] Speaker 00:
But claim one, is that one of the ones that the district court considered?

[00:11:13] Speaker 02:
It is.

[00:11:13] Speaker 02:
Well, the district court never identified any specific claim.

[00:11:18] Speaker 02:
But I'm presuming that they started with claim one.

[00:11:21] Speaker 02:
But claim one refers to an internet protocol, which is not a defined term, but it is shown.

[00:11:28] Speaker 04:
You mean interaction protocol?

[00:11:31] Speaker 02:
Excuse me.

[00:11:31] Speaker 02:
Yes, Your Honor.

[00:11:32] Speaker 02:
Interaction protocol, which is defined in column three

[00:11:36] Speaker 02:
line 6 through 18 of 387.

[00:11:39] Speaker 02:
And it says, quote, the integration module allows the execution of an interaction protocol by a human agent.

[00:11:48] Speaker 02:
The interaction protocol allows the agent to select and present content to a contact in a selected voice type.

[00:11:56] Speaker 02:
And the integration module may include a mode module to allow a single agent to select between one of live voice, script, and interjection interaction.

[00:12:06] Speaker 02:
between the agent and the contact.

[00:12:08] Speaker 02:
The hardware and software make it difficult for an untrained ear to tell the difference between the pre-recorded script and the live voice of the telemarketer.

[00:12:17] Speaker 02:
That's the integration module implementing the interaction protocol, which is described in claim one.

[00:12:25] Speaker 02:
And then if you follow that through to claim 18, it talks about switching back and forth between live voice and recorded

[00:12:32] Speaker 00:
But I don't understand.

[00:12:34] Speaker 00:
That is just trying to seamlessly intersperse live voice and prerecorded voice.

[00:12:41] Speaker 00:
But maybe I misunderstood your opening statement to be that this critical and important contribution that this patent made to the technology was voice synthesis.

[00:12:53] Speaker 00:
And you said, imagine

[00:12:55] Speaker 00:
James Earl Jones' voice is saying my words.

[00:12:58] Speaker 00:
So I guess I thought it was like, Luke, I am your father.

[00:13:01] Speaker 00:
Like, I was kind of envisioning, you know, you're saying words, but the sound is not your voice.

[00:13:07] Speaker 00:
It's James Earl Jones' voice.

[00:13:09] Speaker 00:
I must have misunderstood.

[00:13:10] Speaker 02:
So the way that this patent works is over a telephone.

[00:13:13] Speaker 02:
If I were to have my voice live and a recorded voice from somebody else who's in a deep register, it cannot be a woman's voice, but in a deep register,

[00:13:23] Speaker 02:
the recorded voice of someone else and my live voice, and I could play either of them.

[00:13:28] Speaker 02:
And because of the impedance matching, and the specifics are set out in columns seven and eight, but because of the bandwidth filtering and the impedance matching, you would hear a voice that sounds the same, whether it came from me live or whether it came from the recording.

[00:13:45] Speaker 02:
And that's in the interaction protocol.

[00:13:48] Speaker 02:
It's also in figure two.

[00:13:50] Speaker 02:
If you look graphically at figure two,

[00:13:52] Speaker 00:
So the important technology is a voice synthesis technology that basically, I mean I agree with you, I see right in column three at line 17 where it says the differences between the pre-recorded script and the live voice of the telemarker make it difficult for the untrained ear to tell the differences.

[00:14:10] Speaker 00:
So if what's really critical about this invention, if one of the things that really added it

[00:14:15] Speaker 00:
was the ability to synthesize the live voice and the pre-recorded voice so that they sound identical, pitch, cadence, everything else.

[00:14:24] Speaker 00:
Where is, if that's the contribution, where is that described in this patent?

[00:14:29] Speaker 00:
I mean, I'm an electrical engineer, but that doesn't mean I have any vast knowledge of electrical engineering, although 2005 or 2001 is a little more in my ballpark than modern day.

[00:14:39] Speaker 00:
But nonetheless, I don't see

[00:14:41] Speaker 00:
software or circuit diagram or anything significant that discloses the technology that would achieve what you're saying is the invention right now.

[00:14:54] Speaker 02:
So I would suggest that that technology, how the bandwidth filters, the impedance matching is all laid out in columns seven and eight.

[00:15:03] Speaker 02:
The diagram in figure two shows the voice module

[00:15:07] Speaker 02:
the sales agent in the boiler room speaking through a microphone, linked up to the impedance matching device and the signal processor from the sound card where they are intersecting and being controlled by that interaction protocol in the integration module.

[00:15:26] Speaker 02:
And so that, obviously, we're having a deep dive now into the claim language.

[00:15:33] Speaker 02:
which did not occur.

[00:15:34] Speaker 02:
And that's what we're suggesting should have occurred before the court just tossed out this patent.

[00:15:39] Speaker 04:
Did your side ask for a Markman hearing on this question of the meaning of integration model?

[00:15:47] Speaker 02:
There was no Markman.

[00:15:49] Speaker 02:
There was no claim construction.

[00:15:50] Speaker 02:
There was no discovery.

[00:15:53] Speaker 04:
Did you ever argue that this is the meaning of interaction model?

[00:15:58] Speaker 02:
We cited these sections of the 387 patent, but those particular words, interaction protocol.

[00:16:07] Speaker 04:
For example, in the paragraph, the sentence above the paragraph you're quoting from says, for example, the telemarketer may be a female with a low voice, and she would select a script that has been pre-recorded in a low speaking female's voice.

[00:16:22] Speaker 04:
Yes.

[00:16:23] Speaker 02:
There are limits to what the technology can do.

[00:16:26] Speaker 04:
That's not necessarily

[00:16:28] Speaker 04:
some kind of whiz-bang technical impedance matching synthesis of the speaker's voice with some pre-recorded voice.

[00:16:40] Speaker 04:
That's more like just generically trying to find, of all the pre-recorded scripts, somebody's voice that's kind of like the agent's voice.

[00:16:50] Speaker 02:
No, no.

[00:16:50] Speaker 02:
Well, respectfully, I disagree with Your Honor on this.

[00:16:54] Speaker 02:
I mean, yes, it cannot

[00:16:57] Speaker 02:
normalized between my voice and a soprano voice.

[00:17:01] Speaker 02:
You would choose the alto version if you were a woman with a lower voice, but it can, as within that bandwidth, it can make the voices sound the same over a telephone so that I can selectively interleave human and live voice.

[00:17:16] Speaker 02:
That is ultimately

[00:17:19] Speaker 02:
the outcome of this invention, it achieves something that was otherwise humanly impossible.

[00:17:27] Speaker 02:
It allows the perfect delivery of the scripts and the seamless interleaving of life.

[00:17:33] Speaker 00:
Okay, we've used all your time, including your rebuttal time.

[00:17:36] Speaker 00:
No, it's okay.

[00:17:36] Speaker 00:
We had a lot of questions for you.

[00:17:38] Speaker 00:
But I think we need to hear from Mr. Bateman now, please.

[00:17:41] Speaker 02:
Thank you, Your Honor.

[00:17:50] Speaker 01:
Thank you, Your Honors.

[00:17:53] Speaker 01:
The court is presented with two different standards of review.

[00:17:55] Speaker 01:
The grant of summary judgment is reviewed de novo.

[00:17:59] Speaker 01:
The denial of the motion for reconsideration is treated under the abuse of discretion standard.

[00:18:06] Speaker 01:
This court has made very clear, well, the Supreme Court and this court has made clear over the last couple of years that there's two types of computer patents.

[00:18:15] Speaker 01:
There's patents that actually improve the functioning of the computer, whether it be

[00:18:19] Speaker 01:
a new database structure that does something different, or whether it's the creation of a hybridized website that accomplishes a goal.

[00:18:26] Speaker 01:
And then there's patents where the computer just does what's been done before, only it does it more efficiently.

[00:18:32] Speaker 00:
Yeah, but what he's arguing, as I understand him right now, and so I'd like you to address it, is that the interaction protocol in claim one of the 387 patent was this impedance matching

[00:18:48] Speaker 00:
that's described in column three and then further described in column seven.

[00:18:52] Speaker 00:
And that sounds awfully technical and specific.

[00:18:57] Speaker 00:
I mean, the ability to modulate a voice so that this isn't just listening, receiving a call, and then hitting one button versus a different button based on how you think the best response should be.

[00:19:14] Speaker 00:
This patent is allowing you to spend part of the time talking.

[00:19:17] Speaker 00:
then spend part of the time with pre-recorded voice.

[00:19:21] Speaker 00:
And what does seem to be technical, and it might be that something extra that takes it in Alice Step 2 beyond an abstract idea, that something technical, something extra, is it describes in column 7 an impedance matching protocol that will modulate the two voices so that the user thinks throughout the entire time period it's a single voice that he or she is hearing.

[00:19:47] Speaker 00:
So why isn't that the something extra?

[00:19:50] Speaker 00:
That sounds like something extra.

[00:19:51] Speaker 00:
That definitely sounds something interesting that takes it outside the bounds of just an abstract idea, that ability to modulate the pre-recorded voice and the live voice.

[00:20:01] Speaker 01:
And if that were actually in the claim, Your Honor, we would have a little different discussion here.

[00:20:05] Speaker 00:
Why isn't it?

[00:20:06] Speaker 01:
Because he's talking, he's reading about a module within the system that can do various things.

[00:20:12] Speaker 01:
But if you look at the steps, it's simply executing an interaction protocol

[00:20:17] Speaker 01:
to create an interaction with the contact.

[00:20:19] Speaker 01:
You're just creating a contact with somebody.

[00:20:22] Speaker 01:
You're picking up the phone, you're dialing the phone, hello, Mrs. Smith.

[00:20:27] Speaker 01:
That's all it leaves it at.

[00:20:28] Speaker 01:
Nowhere in there does it say, oh, using this to make it seamless or dynamic or any of those.

[00:20:35] Speaker 01:
And none of this was argued before the court on the summary judgment motion.

[00:20:39] Speaker 01:
Their argument before the court on the summary judgment motion was, we've accomplished what nobody has before because we use interjections.

[00:20:46] Speaker 01:
We have recorded yes, no, uh-huh, ha-ha-ha, and I'm sorry, could you repeat that?

[00:20:53] Speaker 01:
That was the genius of the invention.

[00:20:56] Speaker 01:
That was the argument before the court.

[00:20:58] Speaker 01:
We argued before the court 11 times in our briefing, there is no technology here.

[00:21:06] Speaker 01:
The claims are devoid of any technological result.

[00:21:09] Speaker 01:
They don't claim technology.

[00:21:10] Speaker 01:
11 times in our briefing, NOGOR did not respond.

[00:21:16] Speaker 01:
They saw the DDR decision, and they argued DDR to the district court.

[00:21:21] Speaker 01:
Not once during that discussion did they say, we have anything in our patents that lets us do this seamlessly, that lets us do this dynamically, that lets us do this naturally, that lets us do it transparently.

[00:21:34] Speaker 01:
Those arguments weren't made.

[00:21:36] Speaker 01:
Four months after summary judgments granted, they come up with a new idea.

[00:21:41] Speaker 01:
We should respond to Cambia's arguments.

[00:21:45] Speaker 01:
And they raise them in a motion for reconsideration.

[00:21:48] Speaker 01:
Under 10th Circuit law, a motion for reconsideration cannot be used to raise arguments that could or should have been raised before the District Court.

[00:21:57] Speaker 01:
It may only be used for a clear error of law or where there's newly discovered evidence.

[00:22:02] Speaker 01:
If they newly discovered that they have a technology, there's a problem.

[00:22:08] Speaker 01:
Because you're supposed to know that when you prosecute the patent what your technology is, and you're supposed to claim it.

[00:22:13] Speaker 01:
And these claims don't address that.

[00:22:16] Speaker 01:
They're now trying to conflate a module that can be programmed to do various things with a simple step of initiating a call.

[00:22:24] Speaker 01:
You're going through a process.

[00:22:26] Speaker 01:
Give me the next call.

[00:22:27] Speaker 01:
The computer goes out, pulls in the next call, and you conduct it.

[00:22:31] Speaker 01:
That's what the claims say.

[00:22:33] Speaker 01:
And they didn't argue that.

[00:22:34] Speaker 01:
They didn't ask for a Markman hearing.

[00:22:35] Speaker 01:
They didn't make the argument.

[00:22:37] Speaker 01:
And Judge Stewart heard the argument.

[00:22:41] Speaker 01:
And he said, you know, I've looked at every one of these claims individually.

[00:22:45] Speaker 01:
I've looked at them.

[00:22:46] Speaker 01:
collectively.

[00:22:47] Speaker 01:
And there's just nothing more here, which is exactly the argument that we had made repeatedly as we addressed the court.

[00:22:56] Speaker 01:
There's no technology here.

[00:22:57] Speaker 01:
They're not claiming anything.

[00:22:58] Speaker 00:
So let's make sure I understand your argument, which I think I do.

[00:23:02] Speaker 00:
Your argument is twofold.

[00:23:03] Speaker 00:
Number one, whatever argument I raised with you and that he raised with me is not the one that was raised below.

[00:23:11] Speaker 00:
Yes.

[00:23:12] Speaker 00:
But even if it were,

[00:23:15] Speaker 00:
You're saying none of these claims actually cover this voice synthesis concept that will merge seamlessly a pre-recorded voice with a human voice despite the cadence and despite one might be a boy and one might be a girl, whatever.

[00:23:33] Speaker 00:
Absolutely.

[00:23:33] Speaker 00:
That none of the claims, even though the patent does disclose it in column seven, but that you're saying they didn't claim everything they disclosed.

[00:23:42] Speaker 01:
Exactly.

[00:23:43] Speaker 01:
I, and you know, when we, when we kept saying they don't have technology, you would have expected them if they understood this at the time to say, oh no, we have, we do this, we do this, we do this.

[00:23:52] Speaker 01:
They didn't respond.

[00:23:53] Speaker 01:
Their only response was they just repeated what the claim said and said, yeah, but we use, we use voice actors.

[00:24:00] Speaker 01:
And, um, and then, you know, with their, with their claim 18 deciding on interjections, we can do these things.

[00:24:07] Speaker 01:
Their advance, the whole argument they made to the district court was we have interjections.

[00:24:12] Speaker 01:
We've recorded yes, no, uh-huh, I'm sorry, can you repeat that?

[00:24:16] Speaker 01:
Well, that's not a technological advance.

[00:24:19] Speaker 01:
That's simply recording what a telemarketer says in every phone call.

[00:24:24] Speaker 01:
Uh-huh, oh yes, that's great, Mrs. Smith.

[00:24:26] Speaker 01:
Yeah, eight grandkids, that's amazing.

[00:24:29] Speaker 01:
Those type of interjections, they recorded them.

[00:24:31] Speaker 01:
That was their argument.

[00:24:33] Speaker 01:
And then in the motion for reconsideration, they tried to change the argument.

[00:24:40] Speaker 01:
They have arguments there and we could have addressed those arguments had they been raised, but it's just not in the claims.

[00:24:45] Speaker 01:
There's nothing there.

[00:24:46] Speaker 01:
And we argue that over and over.

[00:24:48] Speaker 01:
And that's exactly what, what judge Stewart found.

[00:24:51] Speaker 01:
He, he looked at the claims and said, everything in these claims are just the steps of traditional marketing.

[00:24:58] Speaker 01:
Yeah.

[00:24:58] Speaker 01:
When you decide on intervening, do I use my script or did she give me a really weird response that doesn't really match my script?

[00:25:05] Speaker 01:
So I'll do something to guide her back to the script.

[00:25:09] Speaker 01:
That can be an interjection or it can be an ad-libbed response.

[00:25:13] Speaker 01:
This is just everyday telemarketing that goes on millions and millions and millions of times a day, whether it be Judge Chen's grandmother or whether it be my wife, whether it be me in the middle of a meeting.

[00:25:27] Speaker 01:
I get a call on my cell phone and it's another telemarketer.

[00:25:30] Speaker 01:
The steps that they identify here are literally the steps of telemarketing applied through a computer.

[00:25:37] Speaker 01:
This is far less technical.

[00:25:39] Speaker 01:
than mediating risk, as in Bielski or intermediate settlement in Alice.

[00:25:47] Speaker 01:
This is not even automating the entire process.

[00:25:49] Speaker 01:
This is using a computer to automate certain things.

[00:25:52] Speaker 01:
And the only thing they automated was interjections.

[00:25:57] Speaker 01:
That's it.

[00:25:58] Speaker 00:
That's the substance.

[00:25:59] Speaker 00:
We have your argument.

[00:26:00] Speaker 01:
Thank you.

[00:26:00] Speaker 00:
If you feel like you have to add anything else, you're good.

[00:26:03] Speaker 01:
No, Your Honor, we're good.

[00:26:04] Speaker 01:
Thank you.

[00:26:05] Speaker 00:
Don't get penalized for giving back time.

[00:26:07] Speaker 00:
Mr. Gilliland, we'll give you two minutes of rebuttal time.

[00:26:14] Speaker 02:
Thank you, Your Honor.

[00:26:14] Speaker 00:
Seems like Mr. Bateman is right.

[00:26:16] Speaker 00:
I don't see the impedance limitation anywhere in the claims.

[00:26:18] Speaker 00:
You may have disclosed, and this happens a lot, and it's very frustrating to me.

[00:26:23] Speaker 00:
I read a lot of patents where it feels like there is an invention disclosed in the specification that absolutely could have been claimed and avoided Alice problems, but not as claimed, because everybody wants the biggest, broadest claims.

[00:26:36] Speaker 00:
Nobody drills down any more on the dependent claims to take it to the level of detail.

[00:26:41] Speaker 00:
So why is he not correct that that limitation is not claimed in this patent?

[00:26:47] Speaker 02:
Well, Your Honor, I believe that it is claimed through the use of the word interaction protocol and that we need to... No, but it doesn't just say it includes an interaction protocol.

[00:26:56] Speaker 00:
It is a method claim.

[00:26:58] Speaker 00:
This method is executed in order, initiating a call, allowing an agent to selectively interleave during the call.

[00:27:05] Speaker 00:
We often say that method steps sometimes have to be performed in the order presented, sometimes do not.

[00:27:13] Speaker 00:
And what we look at, and you've made no argument that these don't have to be performed in order, and it would make no sense.

[00:27:19] Speaker 00:
This claim clearly is meant to be performed in order, providing a system for interaction, executing an interaction protocol to create an interaction, initiating the call, allowing an agent to selectively interweave

[00:27:32] Speaker 00:
recorded scripts.

[00:27:34] Speaker 00:
So the interaction protocol in this claim is only being used to execute and create the interaction with the contact.

[00:27:42] Speaker 00:
It may be that the interaction protocol is capable of doing a lot more at different times, but the way those words are used in this claim in order, in sequence, is only the interaction protocol to create the interaction, to establish the communication.

[00:27:58] Speaker 00:
So you may be right that the interaction protocol, as described in the spec, is capable of doing a lot more, but not in this claim.

[00:28:05] Speaker 00:
What am I missing?

[00:28:06] Speaker 02:
Lawyer, I think that this is a decision that needs to be made based upon a record, based upon the file history, based upon, for example, the Noble and Megacy patents that were cited.

[00:28:20] Speaker 02:
They had a lot of that same technology, yet this patent was issued over those.

[00:28:25] Speaker 02:
They were specifically cited back to the patent office.

[00:28:28] Speaker 02:
So there's clearly, there is a bigger, broader record about how to interpret these claims, which is what the district court needed to do.

[00:28:35] Speaker 02:
That's all we're asking for the opportunity to present this argument to the district court in the first instance.

[00:28:41] Speaker 02:
Because A, we submit a proper reading of these claims, does say that interaction protocol

[00:28:49] Speaker 02:
means specifically not just picking up the phone and calling somebody, but utilizing this technology which allows the seamless interleaving of voice and record it.

[00:28:57] Speaker 02:
And I will just say that this is a technological problem.

[00:29:03] Speaker 02:
You know, when you pick up the phone and there's that one second click and you know on the other end that you're being referred to a call center so you immediately hang up,

[00:29:11] Speaker 02:
Well, there's an abstract idea like in DDR and Bascom of keeping the person on the line, but it's a technological problem.

[00:29:20] Speaker 02:
Here, there was a technological problem created by the use of the recorded scripts, and that is that when people knew that they were talking to a computer, they'd hang up.

[00:29:30] Speaker 02:
There's no compunction about talking to a computer.

[00:29:32] Speaker 02:
It was a problem caused by the technology.

[00:29:35] Speaker 02:
This is a solution that allows live and recorded to occur simultaneously to solve a technological problem.