[00:00:00] Speaker 04:
And six dash one two eight six macro point versus four kites

[00:00:55] Speaker 04:
Okay.

[00:00:57] Speaker 04:
Mr. Countryman, please proceed.

[00:01:00] Speaker 03:
Thank you, and may it please the court.

[00:01:02] Speaker 03:
MacroPoint's claims are patent eligible under Alice's two-step test.

[00:01:07] Speaker 03:
The claims pass step one because they are not directed to the abstract idea of tracking freight.

[00:01:15] Speaker 03:
The claims instead cover a particular way of monitoring a shipment's location by tracking the location of a device associated with that shipment

[00:01:25] Speaker 03:
using location data obtained from a third party rather than the device itself, all while obtaining the appropriate consents.

[00:01:34] Speaker 03:
The claims exclude all other ways of tracking freight, including inferior prior art techniques.

[00:01:43] Speaker 03:
The claims pass ALICE step two for similar reasons.

[00:01:47] Speaker 03:
The claims inventive concept is to obtain the device's location from a third party rather than the device itself,

[00:01:54] Speaker 03:
while also securing the appropriate consent and correlating a particular device to a particular piece of frame.

[00:02:05] Speaker 04:
is part of your argument.

[00:02:07] Speaker 04:
It doesn't even make sense to me that consent has simply to do with whether or not you'd be violating someone's privacy concerns.

[00:02:13] Speaker 04:
I don't see how that is a patentable, innovative, inventive concept.

[00:02:19] Speaker 04:
The idea of securing permission so that you don't violate someone's legal rights doesn't seem like an inventive concept to me.

[00:02:26] Speaker 03:
So to us, Your Honor, it's taking the entire concept as a whole.

[00:02:30] Speaker 03:
It's not any particular piece.

[00:02:32] Speaker 03:
It's not just obtaining the consent.

[00:02:34] Speaker 04:
Well, that's not what the Supreme Court says you need to do in Alice step two part.

[00:02:38] Speaker 04:
Step two is looking at whether there is a particular inventive contribution.

[00:02:44] Speaker 04:
It's not just looking at everything taken together as a whole.

[00:02:47] Speaker 04:
Is it new or different?

[00:02:48] Speaker 04:
I wish that were it, but that ain't it.

[00:02:50] Speaker 04:
That's not what they said in Alice.

[00:02:53] Speaker 04:
That's not consistent with Ultramershal or any number of electric power grid, any number of other cases.

[00:02:58] Speaker 04:
It is, is there a particular inventive aspect of the claim?

[00:03:03] Speaker 04:
It's not taken as a whole.

[00:03:04] Speaker 04:
That's not what step two is about.

[00:03:06] Speaker 04:
And each of our cases that have come out on step two have pointed to a particular aspect of the claim that is inventive.

[00:03:13] Speaker 04:
So I don't see how securing consent is invented.

[00:03:16] Speaker 03:
Well, here the inventive concept is obtaining the location information from a third party as opposed to the device itself, and then doing that.

[00:03:24] Speaker 01:
How can that be inventive?

[00:03:26] Speaker 01:
If a third party has the information in hand, you go up to them and say, can I have access to that information?

[00:03:35] Speaker 01:
How is that inventive?

[00:03:37] Speaker 03:
It's inventive, for example, because no one else in the prior art was doing it that way.

[00:03:42] Speaker 02:
But as I understand it from the specification itself,

[00:03:46] Speaker 02:
the E911 system that all the wireless companies had just implemented under FCC mandate had just come into existence.

[00:03:55] Speaker 02:
So suddenly, this information was available and this patent comes along and says, let's use it.

[00:04:02] Speaker 03:
And that was inventive.

[00:04:05] Speaker 03:
I mean, no one had been doing it that way before.

[00:04:06] Speaker 02:
Well, because the information hadn't been available until the day before yesterday.

[00:04:11] Speaker 03:
And that might go to obviousness or it might go to anticipation.

[00:04:15] Speaker 03:
But it might go to obviousness.

[00:04:17] Speaker 03:
But the question here is patent eligibility.

[00:04:20] Speaker 03:
And really, do these claims preempt all ways of tracking freight?

[00:04:23] Speaker 04:
That's not the question.

[00:04:24] Speaker 04:
That's the question that precipitated the Supreme Court's two-part test in Alice.

[00:04:29] Speaker 04:
But what's not really left for us is to weigh the preemptive effect of every claim.

[00:04:35] Speaker 04:
I mean, that's not what our case law does.

[00:04:37] Speaker 04:
That's not consistent with the Alice two-part test.

[00:04:40] Speaker 04:
That precipitated the development of the test.

[00:04:42] Speaker 04:
But now I'm stuck with the test.

[00:04:44] Speaker 04:
And so you end up with claims.

[00:04:45] Speaker 04:
that are extraordinarily narrow, look at the ultra-mercial claims.

[00:04:49] Speaker 04:
Do you see how specific and how many elements they have in them?

[00:04:53] Speaker 04:
How is their claim any less specific and arguably narrow than yours?

[00:04:59] Speaker 04:
And yet, it was found not to be patent eligible.

[00:05:02] Speaker 04:
I mean, I don't like the decision, but I'm stuck with it.

[00:05:04] Speaker 04:
I've got to apply it.

[00:05:05] Speaker 04:
So I don't see daylight between that case and yours on this preemption point.

[00:05:09] Speaker 03:
Well, I think some of this court's recent cases, McCrow, for example,

[00:05:12] Speaker 03:
holds that when you're looking at step one, whether the claim is directed to the abstract idea, you do consider preemption concerns as part of that.

[00:05:21] Speaker 03:
Because in McCrow, the question was, did it preempt all rules-based ways of automating lip synchronization?

[00:05:28] Speaker 01:
That's not the complete answer.

[00:05:31] Speaker 01:
Nor is it even the principal test in McCrow.

[00:05:34] Speaker 01:
McCrow looks whether the claims are directed to an abstract idea.

[00:05:39] Speaker 01:
Here, what do we have?

[00:05:41] Speaker 01:
We have correlating freight, which is a manifest, a shipping manifest.

[00:05:48] Speaker 01:
We have receiving a first signal, transmitting communications, then receiving communications, transmitting a fourth signal, receiving a fifth signal.

[00:05:57] Speaker 01:
And I think it may go up to a sixth.

[00:05:59] Speaker 01:
Yeah, it goes to a sixth electronic.

[00:06:01] Speaker 01:
So it's transmitting and receiving information.

[00:06:05] Speaker 01:
I would even say that the claims are directed to that.

[00:06:09] Speaker 01:
I don't think they're even narrow enough to say to freight.

[00:06:13] Speaker 01:
I'd say that these claims are directed to transmitting and receiving information.

[00:06:19] Speaker 03:
And I think you have to look at the claims as a whole, Your Honor, and particularly under Alice Step 2 in Bazcom, for example.

[00:06:26] Speaker 01:
You could say that those claims were... But don't go to Step 2.

[00:06:30] Speaker 01:
Deal with Step 1 first.

[00:06:32] Speaker 01:
And that's what I was addressing.

[00:06:34] Speaker 03:
Sure.

[00:06:34] Speaker 03:
So under Step 1, the district court articulated the abstract idea as tracking freight.

[00:06:40] Speaker 03:
And these claims don't cover all ways of tracking freight.

[00:06:43] Speaker 03:
They don't cover obtaining the information directly from the driver.

[00:06:47] Speaker 03:
They don't cover obtaining the information from a device that's pre-installed in the truck.

[00:06:52] Speaker 03:
They don't cover it.

[00:06:53] Speaker 01:
But what does it matter where you're getting the information?

[00:06:55] Speaker 01:
You're just sending and receiving information.

[00:07:00] Speaker 03:
But the claims aren't just covering any way of sending and receiving information.

[00:07:06] Speaker 03:
They're covering sending and receiving information as part of this method for tracking the location of the freight.

[00:07:13] Speaker 03:
And they're covering sending and receiving information among particular parties.

[00:07:18] Speaker 01:
There's no new way or no limitation as to how you're sending and receiving information.

[00:07:24] Speaker 01:
You're focused on from what entity is the information sent or transmitted to or received from.

[00:07:32] Speaker 01:
So you're looking at the entity.

[00:07:34] Speaker 01:
I'd like to see the claims focus more on how are you transmitting the information and how are you receiving it?

[00:07:42] Speaker 01:
And there, if I see limitations that begin to narrow the transmission of information or the receipt of it, then I think we begin to get away from the abstract idea of receiving and sending information.

[00:07:55] Speaker 01:
But I don't see that in your claims.

[00:07:58] Speaker 03:
And that's true.

[00:07:59] Speaker 03:
The claims cover any way of sending and receiving information.

[00:08:01] Speaker 01:
OK, if we stop there, if you can see that point.

[00:08:04] Speaker 01:
that that's what the claims cover, then how can that not be an abstract?

[00:08:11] Speaker 03:
So even if it is, Your Honor, the claims are still patentable under ALICE step two.

[00:08:16] Speaker 03:
OK, let's go to step two.

[00:08:18] Speaker 01:
And I don't see that the inventive or innovative concept here, because you're using conventional ways of receiving and sending information.

[00:08:35] Speaker 03:
Well, here, the inventive concept is where you're sending the information to and who you're getting it from.

[00:08:41] Speaker 03:
So getting the location.

[00:08:43] Speaker 01:
How can it be invented when the prior art, what used to happen to track freight, is that the truck driver would call, stop to get a coffee, call in, and say, OK, I'm in Ohio.

[00:08:55] Speaker 01:
I'm in Cleveland, exit 24, and then call in later on.

[00:09:02] Speaker 01:
It's always been done that way.

[00:09:04] Speaker 01:
And I mean that only in the sense that it's conventional.

[00:09:09] Speaker 01:
The use of the truck driver's location and the truck driver calling or supplying that information is conventional.

[00:09:17] Speaker 01:
You may have something with respect to the service providers giving the information, AT&T and Sprint, but you didn't invent that.

[00:09:28] Speaker 03:
So it was not conventional to get the information from a third party.

[00:09:32] Speaker 03:
Our expert established that.

[00:09:34] Speaker 03:
I don't think there's any dispute about that.

[00:09:36] Speaker 01:
To get it from, like, AT&T, to get the information.

[00:09:40] Speaker 01:
Yes, but you didn't invent that.

[00:09:42] Speaker 01:
You did not invent what AT&T is doing.

[00:09:45] Speaker 01:
Well, no one had brought it... You only brought a service that already existed, that's on the shelf, so to speak.

[00:09:52] Speaker 03:
No one had applied that existing way of doing it in this particular field or in this particular technology.

[00:10:00] Speaker 03:
And so this is just like the Bazcom, for example, where the filtering software for blocking websites was in the prior art, where the prior art had particular IP protocols.

[00:10:13] Speaker 03:
But what the invention was and what Bazcom held was it was harnessing those existing technologies in a new way.

[00:10:20] Speaker 03:
And that's the same thing we have here.

[00:10:22] Speaker 03:
Yes, it's true.

[00:10:23] Speaker 03:
Sending and receiving data was known.

[00:10:25] Speaker 03:
Yes, it's true that there were consent principles in the prior art, but it was taking all those things and harnessing them in a particular way that's reflected in these claims that doesn't cover many other ways of tracking frame.

[00:10:44] Speaker 03:
And we think the Bazcom case shows that.

[00:10:47] Speaker 03:
We think, as we said in our brief, the concern in a lot of these cases has been twofold.

[00:10:53] Speaker 03:
One, are you taking

[00:10:55] Speaker 03:
existing human activity and putting it on a computer.

[00:10:59] Speaker 03:
That's not the case here.

[00:11:01] Speaker 03:
This isn't like the budgeting cases or some of the business method type cases.

[00:11:05] Speaker 03:
And the second concern has been, are you claiming a particular result, but without saying how you get to that result?

[00:11:12] Speaker 03:
The electric power case.

[00:11:13] Speaker 04:
Those are wonderful silos, but they just don't cover all of the case law that is out there.

[00:11:21] Speaker 04:
Which of those two silos does Ultramershal fit in?

[00:11:24] Speaker 03:
The first, taking pre-existing activity of getting money in exchange for displaying an ad and putting that online.

[00:11:39] Speaker 04:
If you're going to simplify Ultramershal to that level of abstraction, then yours is the simple idea of tracking freight.

[00:11:47] Speaker 03:
We don't think so because it's tracking freight by obtaining the location information

[00:11:52] Speaker 03:
from a particular party in a way that wasn't done in the prior art.

[00:11:55] Speaker 03:
So in the prior art, you got the location information from the driver of the truck.

[00:11:59] Speaker 04:
I understand.

[00:12:00] Speaker 04:
Cell phones are used to track cell phones.

[00:12:04] Speaker 04:
Cell phones are used to track the people carrying cell phones.

[00:12:08] Speaker 04:
Is it really a logical leap to say the cell phone is used to track the guy carrying the cell phone and what he happens to be holding in his hands at the time, the freight that's with him?

[00:12:18] Speaker 04:
I mean, not only is the cell phone used to track the guy, it's used to track his suit, right?

[00:12:21] Speaker 04:
The suit he's wearing.

[00:12:22] Speaker 04:
So why is it not used to track the package he's holding, too?

[00:12:25] Speaker 04:
How is that somehow some sort of great inventive concept that it's now not only just tracking him, it's tracking the clothes he's wearing and the package is holding his hand?

[00:12:36] Speaker 03:
One could have said the same thing in Bazcom, where you're putting the filtering software in one place of the network versus the other.

[00:12:42] Speaker 04:
In Bazcom he said it improved the efficiency of the computer operation.

[00:12:46] Speaker 03:
And here you have that too by obtaining the location information from

[00:12:50] Speaker 03:
The third party, you can simultaneously present information from multiple shippers.

[00:12:55] Speaker 04:
That doesn't improve the efficiency of the operation of the computer.

[00:13:00] Speaker 04:
That's the exception that was carved out in DDR and proliferated again in VASCOM.

[00:13:05] Speaker 04:
It's not, does it improve the efficiency of a system?

[00:13:07] Speaker 04:
Well, using a general purpose computer always improves the efficiency of a system that was done manually in the past.

[00:13:13] Speaker 04:
So it's not just improving the efficiency of the system.

[00:13:16] Speaker 04:
The exception is more narrow.

[00:13:17] Speaker 04:
It's improving the efficiency of the operation of the actual device, the computer.

[00:13:23] Speaker 04:
That's what Bazcom and DDR stand for, and as far as I can tell, nothing more.

[00:13:29] Speaker 03:
I don't know that Bazcom's that narrow, Your Honor, because it talks about, for example, not having to go through the inconvenience of having individual users there install the web filtering software on their personal computers, and how that was a problem, because you might have

[00:13:43] Speaker 03:
users that didn't want to install the blocking software, for example.

[00:13:47] Speaker 03:
I think Bazcom held that that was part of the technological solution there.

[00:13:51] Speaker 03:
And here, likewise, eliminating the need for the pre-installed equipment in the trucks is similarly technological.

[00:13:59] Speaker 04:
If there are no further questions, I'll reserve my time.

[00:14:13] Speaker 00:
Good morning, Your Honors.

[00:14:14] Speaker 00:
May it please the Court.

[00:14:15] Speaker 00:
First, the macro point patents are best directed to tracking freight.

[00:14:19] Speaker 04:
As Judge Raina mentioned... How is that even accurate?

[00:14:23] Speaker 04:
I mean, first off there, if you want to talk about the highest level of abstraction, they're tracking freight using third-party network data.

[00:14:31] Speaker 04:
I mean, you can't just say they're tracking freight.

[00:14:33] Speaker 04:
I mean, that's just...

[00:14:34] Speaker 04:
doesn't, has no tether to the claims if you just say tracking freight, the abstract idea of tracking freight.

[00:14:41] Speaker 04:
I don't, every claim could be reduced in that way to its abstract idea and then step one could never be failed.

[00:14:47] Speaker 04:
But yet, we have claims that have survived step one.

[00:14:51] Speaker 04:
You know, Enfish for example, or Refract Technologies or something like that.

[00:14:55] Speaker 04:
I don't see how the abstract idea in this case is tracking freight as opposed to a specific method of tracking freight using third-party data.

[00:15:10] Speaker 00:
And that could very well be, Your Honor.

[00:15:11] Speaker 00:
And our point on this is if we take a look at what we believe the test to be, and that is on ALICE step one, to look at the claims as a whole and consider them as a whole.

[00:15:22] Speaker 00:
look to ascertain what their character as a whole is when you look at these claims.

[00:15:26] Speaker 00:
Claim 1 of the 943 patent, for instance, which was the representative claim that the district court analyzed.

[00:15:31] Speaker 00:
The elements of the claim, correlating freight to a cell phone, receiving a request for location information, getting consent, requesting and obtaining cell phone location from the service provider, correlating the cell phone location to freight, reporting the location.

[00:15:46] Speaker 00:
As we look at that claim and the other claims, the 94 claims in these five patents,

[00:15:50] Speaker 00:
That's what these boil down to.

[00:15:51] Speaker 00:
Their character as a whole, perhaps it is a specific method of tracking freight.

[00:15:55] Speaker 00:
But at the end of the day, it's tracking freight.

[00:15:58] Speaker 00:
Under ALICE step one, no matter how you look at that, from Forkite's perspective and the various formulations of that test.

[00:16:06] Speaker 04:
Under that logic, ENFIT is, at the end of the day, simply a method of organizing data.

[00:16:13] Speaker 04:
It was a specific rubric for organizing data that had never been utilized before that resulted in efficiencies across the computer.

[00:16:21] Speaker 04:
And we held it was not an abstract idea under the first step of Alice.

[00:16:27] Speaker 04:
But under your logic, it's just a method of organizing data.

[00:16:32] Speaker 00:
Your Honor, I believe that is correct.

[00:16:33] Speaker 04:
I believe if you look at the claims of- We believe it's correct, but we held the opposite.

[00:16:37] Speaker 00:
Well, I think there are other reasons why Enfish is not directly related to this case.

[00:16:41] Speaker 04:
Enfish is a step one case.

[00:16:43] Speaker 00:
Understood, Your Honor.

[00:16:44] Speaker 00:
And on step one here, our view of these claims, when you look at the claims as a whole and their character as a whole, and you characterize those,

[00:16:50] Speaker 00:
without getting narrowly into the specifics of the claim elements, as we're not supposed to do on claim one under Alice, these claims are about tracking freight.

[00:16:58] Speaker 04:
And that's why our position has been... It's what are these claims directed to?

[00:17:02] Speaker 04:
And that's what our case law says, directed to.

[00:17:05] Speaker 04:
These claims, it doesn't seem to me, are directed to an abstract idea of tracking freight.

[00:17:09] Speaker 04:
It seems to me these claims are directed to a specific method of tracking freight.

[00:17:16] Speaker 00:
I respectfully disagree with that, Your Honor.

[00:17:18] Speaker 00:
I think that these claims don't say what they are specifically directed to other than obtaining the information, correlating the information, and reporting the information.

[00:17:26] Speaker 04:
That's absolutely not true.

[00:17:27] Speaker 04:
These claims have a lot of limitations, including third party access of the data relating to location, right?

[00:17:35] Speaker 04:
That's correct.

[00:17:37] Speaker 04:
And if claims two and three are on the table, they require not using GPS to do it, but using one of four articulated specific ways of that data being transmitted.

[00:17:49] Speaker 04:
So how is that not a very specific way?

[00:17:52] Speaker 00:
Well, it's a particular way of tracking freight, Your Honor, with respect to doing that with the third-party data, the consent, and everything else that macro point is pointed to.

[00:18:01] Speaker 00:
How these claims differ, though, from the likes of Enfish and other cases that have said, well, no, that is not an abstract idea.

[00:18:08] Speaker 00:
This is a fundamental, long-standing business practice, tracking freight.

[00:18:12] Speaker 00:
Enfish was not.

[00:18:13] Speaker 00:
That was a specific interrelational correlation.

[00:18:16] Speaker 04:
Organizing data, which would be your equivalent, is a long-standing business practice.

[00:18:21] Speaker 04:
Everybody wants their data to be organized by hand, on the computer, everywhere else.

[00:18:25] Speaker 04:
That's all Enfish was.

[00:18:26] Speaker 04:
It's a particular data construct for organizing data.

[00:18:29] Speaker 04:
So I don't know.

[00:18:31] Speaker 04:
I'm still struggling with how this is directed to an abstract idea.

[00:18:37] Speaker 00:
And our position, Your Honor, is that MacroPoint has attempted to take, they've accused Forkites of being too broad.

[00:18:44] Speaker 00:
And I understand the concern that if you take the lens out too far, you're looking at this in a very broad way.

[00:18:49] Speaker 04:
And in a way that would conflict with our other case law, like Enfish.

[00:18:52] Speaker 00:
Understood, Your Honor.

[00:18:54] Speaker 00:
Under ALIS, as we look at these claims, and we see this is different than the ENFISH line of cases, that you've got a method of tracking freight, which is a long-standing fundamental business practice that's been around forever, albeit in a specific way that it's claimed in these patents.

[00:19:10] Speaker 00:
These elements, in our view, are doable by a human without a computer, which is another formulation of that test.

[00:19:16] Speaker 04:
How are these doable by a human without a computer?

[00:19:19] Speaker 04:
Everything about these claims scream, you must have a computer.

[00:19:24] Speaker 04:
And if we're going to claim three, it's articulating particular forms of software, particular software patterns that have to be utilized.

[00:19:31] Speaker 04:
How can you do this without a computer?

[00:19:33] Speaker 00:
What you're doing, Your Honor, is you're tracking.

[00:19:35] Speaker 00:
You are correlating.

[00:19:37] Speaker 00:
Figure two of the pattern specifically talks about how this information is correlated.

[00:19:41] Speaker 04:
Using advanced forward link trilateration

[00:19:46] Speaker 04:
I don't know if I'm saying that right.

[00:19:49] Speaker 04:
It doesn't seem like something a human's been doing.

[00:19:51] Speaker 00:
That is the method of obtaining the location information, Your Honor.

[00:19:54] Speaker 00:
That is the way that AT&T or Sprint is locating that cell phone.

[00:19:59] Speaker 00:
It's one of the radio frequency location techniques that's specified.

[00:20:03] Speaker 00:
Yes.

[00:20:03] Speaker 04:
And you're going to tell me this doesn't require a machine, that this is a series of steps that a human being does.

[00:20:09] Speaker 00:
Not that, Your Honor.

[00:20:10] Speaker 00:
The claim doesn't specify that.

[00:20:13] Speaker 00:
What we're talking about is obtaining the location information.

[00:20:16] Speaker 00:
How is that done?

[00:20:17] Speaker 00:
It is done by sprint, by AT&T, not by macro point, and it's done via that particular method.

[00:20:24] Speaker 00:
It's done via GPS or another method.

[00:20:26] Speaker 04:
No, it's not done via GPS.

[00:20:28] Speaker 04:
Claim two expressly says not GPS.

[00:20:30] Speaker 00:
Understood.

[00:20:30] Speaker 04:
And claim three is dependent on claim two.

[00:20:32] Speaker 00:
Understood.

[00:20:32] Speaker 04:
Actually, it's not dependent on claim two.

[00:20:33] Speaker 04:
I correct myself.

[00:20:35] Speaker 04:
Claim three is dependent on claim one, but it specifies three things which don't include GPS.

[00:20:39] Speaker 04:
Anyway, yeah, all right, continue.

[00:20:43] Speaker 04:
Tell me why he's not right about what he said about Bazcom under step two, because I kind of think he is.

[00:20:49] Speaker 04:
I mean, I gave him a hard time about it, but I don't think Bazcom is limited to the efficiency of the machine.

[00:20:56] Speaker 04:
I think Bazcom absolutely does discuss other efficiencies that are realized in the system by virtue of the improvement of the inventive concept.

[00:21:05] Speaker 00:
Your Honor, and I agree.

[00:21:07] Speaker 00:
I think Bazcom's very informative here.

[00:21:08] Speaker 00:
The BASCOM decision, of course, talked about the generic computer equipment that was involved.

[00:21:12] Speaker 00:
And under the first step of ALICE, that's abstract, at least what was going on there.

[00:21:17] Speaker 00:
With respect to ALICE step two, the individual elements were found to be pre-existing, well-understood conventional activity.

[00:21:26] Speaker 00:
With respect to that second aspect of looking at the ordered combination, the filtering software and where it was placed improved the efficiency and functioning of a computer system specific to those claims.

[00:21:37] Speaker 00:
That's the difference here.

[00:21:38] Speaker 00:
What we don't have is the computer system, the generic computer components that are shown in the patent here, nothing special or new about them, used in a way that they've always been used.

[00:21:48] Speaker 00:
Processors, memories, IO buses, all the things that are specified, used in the exact same way that they've always been used.

[00:21:55] Speaker 00:
But instead of getting location information from the phone or from the driver,

[00:22:01] Speaker 00:
The input to the system is location information from the third party, i.e.

[00:22:06] Speaker 00:
AT&T, Sprint, etc.

[00:22:08] Speaker 04:
but it's a lot more efficient and it removes the way freight had traditionally been tracked just prior to this was using GPS and every truck could have a different GPS system and the coordination of that data across the country for a national company like FedEx or UPS could be logistically very difficult because the coordination of that data could be a bottleneck in their process of tracking freight and what these people figured out

[00:22:36] Speaker 04:
was a new way of tracking freight using pre-existing cell phone data that's already collected by somebody else.

[00:22:42] Speaker 04:
So we can just reach out and grab that and it totally eliminates our need to have to go to the device directly on the truck.

[00:22:48] Speaker 04:
It eliminates our need to have to coordinate the software for all the possible different GPS systems because cell phones are ubiquitous.

[00:22:56] Speaker 04:
They're everywhere and there's only a couple of ways of collecting the data and we can go to those third party providers and

[00:23:01] Speaker 04:
captured the data.

[00:23:03] Speaker 04:
It seems to me that realizes a pretty big efficiency in the tracking freight process, and it is something that was never done before.

[00:23:10] Speaker 04:
So why doesn't that satisfy step two?

[00:23:12] Speaker 00:
I don't think it does, Your Honor, because when you look at this, this is well understood conventional activity.

[00:23:17] Speaker 04:
Obtaining location data.

[00:23:20] Speaker 00:
Using a cell phone to track location of the cell phone.

[00:23:24] Speaker 00:
Because what the tracking of the freight is doing in these patents, that's the correlation step.

[00:23:29] Speaker 00:
They're taking that information that's obtained from AT&T and Sprint, whoever that cell phone provider is, and they're correlating it via this figure two in the patent and saying, OK, we're saying that freight, or that cell phone that we locate via Sprint, is with that piece of freight on that truck via a simple table.

[00:23:47] Speaker 00:
And that's where we're saying that is not an inventive step.

[00:23:50] Speaker 00:
That's not like BASCOM, increasing the efficiency by implementing that table in a generic computer.

[00:23:56] Speaker 00:
That's a specific difference here that we don't have that's very different than what was going on at VASCO, vis-a-vis the efficiency.

[00:24:03] Speaker 01:
It seems to me that I even have a hard time understanding how the patent tracks freight.

[00:24:08] Speaker 01:
Because what the claims are directed to is tracking the location of the communications device and not freight.

[00:24:14] Speaker 01:
And it seems to me, I mean, that's the way it used to always work.

[00:24:17] Speaker 01:
The driver would call in.

[00:24:19] Speaker 01:
But there was just lag time and things of that nature.

[00:24:23] Speaker 01:
So here, these plans are set out to track the communications device that's held by the driver.

[00:24:31] Speaker 01:
But my old customs were days popped back up and you have less than full containers.

[00:24:38] Speaker 01:
You have switching of tractor-trailer rigs all the time.

[00:24:42] Speaker 01:
What happens when a driver switches, drops off a load, and picks up a new container?

[00:24:49] Speaker 01:
It's obviously something else actually happened that the phone itself doesn't tell you that It goes back to this the keeping of the manifest So is claim one the only claim that was reviewed by the court That's correct your honor the district court did a representative claim analysis based on claim one of the nine four three bet that that is correct With respect to your first point we agree completely your honor I think

[00:25:19] Speaker 00:
The link, if you will, between tracking that cell phone, which is what's going on, and tracking the freight via the location information from the cell phone provider is this correlation.

[00:25:31] Speaker 00:
What MacroPoint has said is we believe that's part of the inventive concept here that saves us under step two.

[00:25:39] Speaker 00:
That's this basic table.

[00:25:40] Speaker 00:
Figure two of the patent is this correlation table, tracking a driver with a specific cell phone on a truck with a piece of freight.

[00:25:48] Speaker 00:
Implementing that via standard, ordinary, generic computer components, which MacroPoint hasn't even argued there's some special type of computer used here, is nothing more than doing what had been done, as Your Honor said, for years, tracking a manifest.

[00:26:02] Speaker 00:
With respect to the representative claim, Your Honor, the district court did look just at that one claim.

[00:26:06] Speaker 00:
And I think there are 94 claims total across the five patents in suit.

[00:26:10] Speaker 00:
As this court has acknowledged, where there are no material differences in the claim language,

[00:26:16] Speaker 00:
Well, what we're doing is changing one element here and there, moving things around, whether we talk about location data by that cell phone provider has to be tracked via GPS or not, whether the information is displayed on a map or not, things like that.

[00:26:32] Speaker 00:
Our position on that is that there are no material differences there.

[00:26:35] Speaker 00:
With respect to those claims, it was an appropriate analysis that was done by the district court.

[00:26:39] Speaker 04:
Did the district court make that finding?

[00:26:40] Speaker 04:
Did the district court say he finds there are no material differences between the other 93 claims and this one, and thus I will decide to do it representative?

[00:26:49] Speaker 04:
Or did he incorrectly suggest that they had agreed to the representative claim?

[00:26:54] Speaker 00:
The district court, I don't believe the district court made that expressed statement, Your Honor.

[00:26:58] Speaker 00:
I believe the district court, and I think this was in?

[00:27:02] Speaker 04:
Footnote.

[00:27:02] Speaker 00:
It wasn't a footnote, Your Honor.

[00:27:04] Speaker 00:
I believe that's correct.

[00:27:05] Speaker 04:
At the beginning of his opinion, and I believe, he says, plaintiff does not dispute claim one is representative.

[00:27:12] Speaker 04:
So he makes what looks to me to be no fact finding suggesting a similarity between any claims, but rather suggests that plaintiff does not dispute.

[00:27:23] Speaker 04:
But when I look at their briefs,

[00:27:25] Speaker 04:
I agree, they don't dispute 91 of the claims, but they really clearly dispute claim two and claim three, lay them out and explain the elements and talk about, and this is a breach not only before us, but before the district court.

[00:27:38] Speaker 04:
I didn't see you in your brief running away from claim two and three.

[00:27:41] Speaker 04:
And I thought you made good arguments about why they didn't save claim one.

[00:27:44] Speaker 04:
So let me just put that out there.

[00:27:46] Speaker 04:
But I don't think the district court is right that they agreed to claim one being representative.

[00:27:51] Speaker 04:
Am I missing some stipulation somewhere that you're aware of in this record where you believe that they were agreeing to the representative nature of claim one?

[00:27:58] Speaker 00:
No, you're not, Your Honor.

[00:27:59] Speaker 00:
I think that is absolutely correct.

[00:28:01] Speaker 00:
A2 is what the district court said on this particular issue.

[00:28:05] Speaker 00:
If I recall correctly, what was argued in the assessment of the district court at that point, whether the district court misstated that or not, was that the points that MACRA point tried to look to and suggest as being different, which they've done here in this court, were things like, I think this was in their blue brief at pages 29 to 30, obtaining location information with or without GPS, or causing location information to be displayed visually.

[00:28:29] Speaker 00:
They noted the same things in their reply brief.

[00:28:31] Speaker 00:
What they didn't do is explain how those are material differences

[00:28:34] Speaker 00:
in these patent claims that somehow take these outside the scope of what would be an otherwise appropriate representative claim analysis.

[00:28:41] Speaker 02:
Can I ask you, I guess, a version of the question I asked Mr. Countryman?

[00:28:46] Speaker 00:
Yes, sure.

[00:28:47] Speaker 02:
The patent makes clear that not among the asserted advances here is the collection by third parties of precisely this information.

[00:29:02] Speaker 02:
So we point things to 101 as about where is the asserted advance.

[00:29:06] Speaker 02:
It can't be in the collection by third parties of this information, which perhaps three years before the priority date wasn't occurring, but by the time the priority date was, all the wireless companies had it because they had to have it.

[00:29:20] Speaker 02:
That's what the E9-on-1 system was.

[00:29:24] Speaker 02:
What do I make of that for 101 as opposed to for 103?

[00:29:29] Speaker 00:
My time's up, Your Honor.

[00:29:30] Speaker 00:
May I answer the question?

[00:29:31] Speaker 00:
I think that's a very apropos point, Your Honor.

[00:29:34] Speaker 00:
I think what you make of that is that that cannot be inventive.

[00:29:36] Speaker 00:
That aspect of what MacroPoint points to as somehow inventive under Section 101 cannot be inventive because it was done by someone else.

[00:29:44] Speaker 00:
It's been mandated by the government.

[00:29:46] Speaker 00:
That information's been out there for a long time.

[00:29:48] Speaker 00:
We're not in a 102, 103 analysis, obviously.

[00:29:50] Speaker 00:
It would have relevance there as well.

[00:29:52] Speaker 00:
But our position is that suggests that aspect of their claimed inventive concept cannot be inventive.

[00:29:58] Speaker 04:
Tell me if you don't mind, I'm probably going to keep you here for a few more minutes because I have more questions.

[00:30:03] Speaker 04:
Certainly, Your Honor.

[00:30:05] Speaker 04:
As comfy as you can, I guess.

[00:30:07] Speaker 04:
I don't really know that there is a strong role for a preemption test as advocated

[00:30:20] Speaker 04:
by your opponent.

[00:30:22] Speaker 04:
I understand that to be something that you can use at best, as was done in McRoe, to reinforce your assessment of the results of the two-part Alice test.

[00:30:36] Speaker 04:
I understood preemption to drive the creation of the test as one of the prevalent factors, but not to be some sort of

[00:30:43] Speaker 04:
Oh, well, this doesn't seem to prevent it.

[00:30:45] Speaker 04:
Preempt a lot.

[00:30:46] Speaker 04:
It's very narrow.

[00:30:47] Speaker 04:
Thus, we're going to let it go.

[00:30:48] Speaker 04:
I don't see that standing alone as some sort of independent test.

[00:30:53] Speaker 04:
Is that your understanding as well?

[00:30:54] Speaker 00:
I absolutely agree, Your Honor.

[00:30:55] Speaker 00:
I think that what the Supreme Court said was preemption undergirds this area of law.

[00:31:00] Speaker 00:
And we're going to come up with this two-part test, which we are going to have you use to evaluate the issue of preemption.

[00:31:06] Speaker 00:
So we go through ALICE step one.

[00:31:07] Speaker 00:
We go through ALICE step two.

[00:31:09] Speaker 00:
And depending on how we come out there, we either have a sufficient

[00:31:12] Speaker 00:
preemption concern or we don't.

[00:31:14] Speaker 00:
And I agree, and I think the Ariosa decision gets into this too, that it's that two-part test that is directed to the issue of preemption.

[00:31:23] Speaker 00:
We go through that two-part test, but we don't have a separate independent, at least under current law, we don't have a separate independent legal analysis on the issue of preemption beyond doing ALICE step one and ALICE step two.

[00:31:36] Speaker 04:
And I gave you a

[00:31:38] Speaker 04:
a lot of difficult questions about abstract idea because I'm struggling with how to articulate the maybe two cases that we've decided where something wasn't determined to be an abstract idea.

[00:31:51] Speaker 04:
I mean do you have some way that you think you can explain to me

[00:31:57] Speaker 04:
What it means to be an abstract idea and how I think about that test because you know Lots of people seem to be at a loss for it meet me included I feel like there are landmines everywhere that are just data points And I'm trying not to step on one as I make my way through these cases and you know so I mean do you have any idea?

[00:32:15] Speaker 04:
How you would articulate?

[00:32:17] Speaker 04:
What is the test for when something is an abstract idea, keeping in mind that not everything can be?

[00:32:23] Speaker 04:
Because we've had at least two cases that went the other way on prong one.

[00:32:29] Speaker 00:
I thank you for the question, Your Honor, because I've thought about this.

[00:32:33] Speaker 00:
And I think all of us are dealing with this issue.

[00:32:35] Speaker 00:
Well, and I appreciate the question, because I think it's very difficult.

[00:32:39] Speaker 00:
And we look at the way that the test under step one has been evaluated.

[00:32:43] Speaker 00:
well-understood, fundamental, long-standing business practices, doable by a human and without a computer.

[00:32:51] Speaker 00:
What I see, this doesn't directly answer the question, but I will in a second, other cases, which I think Your Honor is getting to, that are similar in nature and where they've gone, which somewhat helps and doesn't help.

[00:33:03] Speaker 00:
At the end of the day, I try to parse what the Supreme Court said in the Alice case.

[00:33:09] Speaker 00:
And what it comes down to for me is

[00:33:12] Speaker 00:
some indication that what is here is not concrete and specifically tethered.

[00:33:19] Speaker 00:
And that's probably not the best formulation either as I think about it on the fly, but something that is specific and concrete.

[00:33:27] Speaker 00:
As I try to, as we do, try to look through the cases and the decisions that this court and the Supreme Court have issued on this point, there doesn't seem to be a clear line.

[00:33:37] Speaker 00:
But I think for me at the end of the day,

[00:33:40] Speaker 00:
There's got to be some concreteness here.

[00:33:41] Speaker 00:
It's got to be more than an abstraction.

[00:33:43] Speaker 00:
I try to look at, OK, what is the meaning of the word abstract in addition to what is the meaning of the word idea?

[00:33:49] Speaker 00:
We know the statute talks about ideas, but it's difficult.

[00:33:53] Speaker 00:
Other cases, this court's fair warning versus iatric systems decision in October, I think, has helped on this point too.

[00:33:59] Speaker 00:
Similar factually, both procedurally and substantively here, with respect to the types of claims and the alleged non-abstract idea there,

[00:34:11] Speaker 00:
That's probably the best I can do, Your Honor, because I'm at a loss a bit as well.

[00:34:15] Speaker 04:
It's a tough issue.

[00:34:16] Speaker 04:
It's a very hard issue.

[00:34:17] Speaker 04:
And like in this case, one of the things that jumped out at me is the district court's decision on step one in the district court relied on the district court decision in Enfish and said, hey, this case is like Enfish.

[00:34:27] Speaker 04:
And we came along and reversed Enfish.

[00:34:28] Speaker 04:
So I'm trying to sort of piece all these pieces together.

[00:34:33] Speaker 04:
Step one, I find to be challenging.

[00:34:36] Speaker 04:
Step two seems a little bit easier.

[00:34:38] Speaker 04:
But okay, well thank you very much for the extra thoughts.

[00:34:42] Speaker 04:
I appreciate them.

[00:34:43] Speaker 04:
Okay, Mr. Countryman, I'll give you your full three minutes of rebuttal time.

[00:34:48] Speaker 04:
If you need a few minutes more since I went over with Mr. Hood, you can take it, but it's up to you.

[00:34:55] Speaker 03:
Thank you, Your Honor.

[00:34:57] Speaker 03:
A few points.

[00:34:59] Speaker 03:
First, there are technological benefits to this invention.

[00:35:04] Speaker 03:
It's about presenting

[00:35:08] Speaker 03:
Location information for multiple shippers that are using multiple tracking technology, so where's that in the claims?

[00:35:15] Speaker 02:
So that's not recited in the claims itself, but it is a claim claim here.

[00:35:20] Speaker 02:
It would be satisfied by my having your cell phone location and Judge more asking me to work If you assume you're in a trial you know you have to keep carrying something you look all freight I Think so your honor

[00:35:38] Speaker 03:
I mean, obviously, there'd have to be the appropriate consent, the correlating step.

[00:35:42] Speaker 03:
All the steps of the claim would have to be met.

[00:35:44] Speaker 03:
But perhaps in principle, that's true.

[00:35:46] Speaker 03:
To address your concern, though, in many of the cases, the technological benefit was not necessarily itself recited in the claim.

[00:35:54] Speaker 03:
So in Bazcom, for example, the benefit was being able to have individual users customize their web filtering so that each user could block particular websites for that user,

[00:36:07] Speaker 03:
That wasn't recited in those claims, and yet the court relied on that as a technological benefit to hold the claims patent eligible under step two.

[00:36:15] Speaker 03:
So I think the question is, is a consequence of the claims or as a result of practicing the claims invention?

[00:36:21] Speaker 01:
That's because step two asks us to look at the patent as a whole.

[00:36:25] Speaker 01:
Is there an inventive concept?

[00:36:27] Speaker 01:
But step one directs you to the claims and asks you, are the claims directed to an abstract idea?

[00:36:34] Speaker 03:
And I think on that point,

[00:36:37] Speaker 03:
Here they aren't, because the abstract idea articulated by the district court was track and frame.

[00:36:41] Speaker 01:
Let's take a look at this.

[00:36:42] Speaker 01:
So the consent, the only reason why the consent is required is because the third party suppliers won't give you that information unless the person holding the mobile phone allows it, correct?

[00:36:55] Speaker 01:
Right.

[00:36:56] Speaker 01:
OK.

[00:36:56] Speaker 01:
So that's not necessary.

[00:36:59] Speaker 01:
You didn't invent the communication devices.

[00:37:02] Speaker 01:
You didn't invent sending and receiving information

[00:37:07] Speaker 01:
over to the internet over wires.

[00:37:11] Speaker 01:
So what's left?

[00:37:12] Speaker 01:
What's left is the correlation between a cell phone and the freight.

[00:37:19] Speaker 01:
And your claims speak to that only in one place.

[00:37:22] Speaker 01:
In fact, claim one only deals with freight, uses the word freight three times in a series of claims or in a series of elements.

[00:37:35] Speaker 01:
the transmitting, the correlating, the receiving.

[00:37:37] Speaker 01:
It only deals with freight in one place.

[00:37:40] Speaker 01:
So when I ask, okay, where are the claims directed to correlating freight with the mobile phone?

[00:37:49] Speaker 01:
And that's with the list.

[00:37:52] Speaker 01:
So you have driver A carrying furniture from X manufacturer will track his cell phone.

[00:38:00] Speaker 01:
There's nothing in here about tracking the freight.

[00:38:04] Speaker 01:
But yet, that's what you're claiming.

[00:38:10] Speaker 03:
To me, when you put all the limitations together, what you have is tracking freight by obtaining the location information from a third party and doing it with the appropriate consent.

[00:38:20] Speaker 01:
But you're obtaining the location of the cell phone, not the freight from a third party.

[00:38:25] Speaker 03:
But then you're correlating the location of that cell phone to the location of the freight.

[00:38:29] Speaker 01:
OK.

[00:38:30] Speaker 01:
That I buy and that I see.

[00:38:31] Speaker 01:
But I don't think you invented that.

[00:38:33] Speaker 01:
And I don't think that's what you're claiming.

[00:38:35] Speaker 01:
I don't think you're claiming because that's what the whole world of freight is all about.

[00:38:40] Speaker 01:
It's called a manifest.

[00:38:42] Speaker 01:
You have a shipper.

[00:38:43] Speaker 01:
You have a consignee.

[00:38:46] Speaker 01:
You identify the parties to the transaction, the shipping transaction, that have an interest.

[00:38:51] Speaker 01:
And you track that.

[00:38:54] Speaker 03:
But what was not done before, and I think especially on the posture of this case, where it's a 12 v 6 motion where the facts have to be assumed in our favor, where we have an expert declaration saying this, no one had gotten the location of that device from a third party before, as opposed to the device itself.

[00:39:12] Speaker 01:
And this, I think, goes to... Probably with respect to freight.

[00:39:14] Speaker 01:
But I would venture to say, though I don't know, and I haven't looked at the record, but I would venture to say that AT&T was selling the location of these cell phone devices to a lot of different people.

[00:39:28] Speaker 02:
Law enforcement.

[00:39:29] Speaker 01:
Law enforcement or advertisers.

[00:39:31] Speaker 01:
We get these pans all the time, where they're selling the location services.

[00:39:37] Speaker 01:
And all you did is you went and bought that.

[00:39:40] Speaker 01:
But somebody said, cell phone A, this manifest.

[00:39:48] Speaker 01:
That's really the only thing left in claim one.

[00:39:55] Speaker 01:
So you're stuck with claiming the abstract idea of locating a cell phone.

[00:40:01] Speaker 01:
That's how I see it.

[00:40:02] Speaker 01:
And I think that's abstract.

[00:40:04] Speaker 03:
I disagree.

[00:40:06] Speaker 03:
I think especially with respect to step two, you have to look at the whole claim.

[00:40:10] Speaker 03:
You have to look at everything as an ordered combination.

[00:40:12] Speaker 03:
And so you're not only correlating the device with the freight, but you're getting the location of that device from a third party with the appropriate consents.

[00:40:21] Speaker 03:
And when you look at all that as an ordered combination,

[00:40:24] Speaker 03:
This is the first time that anyone had done that.

[00:40:26] Speaker 01:
This is the first time.

[00:40:28] Speaker 01:
What is it that you're arguing?

[00:40:30] Speaker 01:
That you're using inventive steps, meaning steps for an application, or steps that have not been used before?

[00:40:41] Speaker 01:
Or are you arguing that you've reordered conventional systems and conventional steps in a new way that's never been done before?

[00:40:53] Speaker 03:
I think it's both.

[00:40:54] Speaker 03:
I think certainly this had never been done before.

[00:40:57] Speaker 01:
I think that's... But you can't say, first of all, that you invented any of this.

[00:41:03] Speaker 01:
I think some of the individual pieces were... You invented a method, so you reordered, or you cobbled together things that were out there.

[00:41:12] Speaker 03:
Well, no one had cobbled them together in this particular way before.

[00:41:16] Speaker 01:
That's what you invented, the cobbling together.

[00:41:19] Speaker 03:
And although we're saying cobbling together, I mean, that is inventive.

[00:41:23] Speaker 03:
I mean, in Bazcom, for example, the patentee there hadn't invented the IP protocols that were used to transmit and receive the data.

[00:41:30] Speaker 03:
They hadn't invented the filtering software.

[00:41:32] Speaker 03:
But what they had done is they had an idea to harness that existing technology and reorder it in a new way that Bazcom held was inventive by putting the filtering software at the ISP.

[00:41:45] Speaker 03:
Similarly here, we're taking that existing technology

[00:41:49] Speaker 03:
and we're harnessing it in an easy way.

[00:41:51] Speaker 02:
Isn't there at least this difference between BASCOM and this?

[00:41:57] Speaker 02:
Here the information has not been moved from one place to another.

[00:42:05] Speaker 02:
It's already in the third party's hands and you're just saying, please give it to me.

[00:42:12] Speaker 02:
As opposed to essentially

[00:42:15] Speaker 02:
BASCOM is about moving a function from one portion of a network to another portion of a network in such a way that it was assertively inventive and changes the structure and the efficiency of operation of the physical network.

[00:42:33] Speaker 02:
I'm not sure what the counterpart here is because this information is sitting already at the AT&T wireless

[00:42:43] Speaker 02:
I don't know what they're called, hubs or something.

[00:42:46] Speaker 03:
So I think it's moving where you're getting the information from rather than the device or from AT&T.

[00:42:54] Speaker 03:
Just as in Bazcom, I think the ISP already had information about which user it was sending and receiving data from.

[00:43:04] Speaker 03:
And the question was, can we take that existing information that the ISP has

[00:43:08] Speaker 03:
and harness it in a way, combine it in a way that we can improve web filtering technology.

[00:43:14] Speaker 03:
I think it's the same thing here.

[00:43:15] Speaker 03:
We're using information that AT&T has, but we're using it in a way to improve tracking freight by simultaneously monitoring from multiple shippers, using multiple cell phone tracking technologies, moving the need for pre-installed equipment, doing so in a real-time and continuous manner.

[00:43:33] Speaker 03:
No prior art system had

[00:43:36] Speaker 03:
accomplished that before, and so at least for purposes of a 101 analysis, we suggest that that is a sufficient inventive concept, especially given the 12b6 posture here, and especially given some of the dependent claims, like claims 2 and 3 of the 943 patent, that further narrow it to particular location techniques, so not GPS, for example.

[00:44:01] Speaker 03:
some of the other tracking technologies.

[00:44:04] Speaker 02:
Is it right, based on the spec, that the location techniques itemized in claims three, and one of them isn't really a technique, it's just the identifier of the device, right?

[00:44:17] Speaker 02:
The CPD or something?

[00:44:18] Speaker 02:
Yes.

[00:44:19] Speaker 02:
Does that pretty much cover the waterfront of how cell phones are found, kept track of their location?

[00:44:29] Speaker 03:
I think no, in the sense that it excludes GPS, and cell phones do use GPS too.

[00:44:35] Speaker 03:
With respect to the rest of the question, I don't know the answer to the rest of your question, but it certainly is limited to this particular technique.

[00:44:41] Speaker 03:
So it's independently patentable.

[00:44:43] Speaker 03:
And as Judge Moore noted, we never conceded the representativeness of claim one.

[00:44:52] Speaker 03:
Certainly, the district court erred by not looking at least at those claims.

[00:44:55] Speaker 03:
and not finding them patent eligible for at least that additional reason.

[00:45:01] Speaker 04:
OK, well, Mr. Countryman, we have your argument.

[00:45:05] Speaker 04:
I think we need to close this case.

[00:45:06] Speaker 04:
Thanks very much.