[00:00:00] Speaker 01:
Good morning, everybody.

[00:00:02] Speaker 01:
You're all going to have to bear with me a little bit.

[00:00:04] Speaker 01:
I've had dental surgery a few weeks ago, so my jaw's wired shut, but I can at least mumble.

[00:00:11] Speaker 01:
If you don't understand me, just ask me to repeat myself.

[00:00:15] Speaker 01:
Mr. Jay, when you're ready.

[00:00:24] Speaker 02:
Thank you, Your Honor.

[00:00:25] Speaker 02:
May it please the Court, William Jay, for the appellant personalized media communications.

[00:00:29] Speaker 02:
The district court in this case granted judgment on the pleadings and invalidated all 58 claims in suit across seven patents in a very short opinion.

[00:00:37] Speaker 02:
In my limited time this morning, rather than trying to get to each and every one of those seven patents, I'd like to focus in particular on the 304 and the 252 and to use those to illustrate some of the errors in the district court's analysis.

[00:00:48] Speaker 02:
We think those errors are brought out particularly by several recent decisions of this court that close the district court's decision.

[00:00:54] Speaker 02:
I want to emphasize three points this morning.

[00:00:57] Speaker 02:
First, the district court proceeded at such a high level of generality that it fundamentally misunderstood what the patents are directed to.

[00:01:04] Speaker 02:
It missed the significance of each of the ordered combinations, and it ignored how really narrow some of those combinations are.

[00:01:11] Speaker 02:
Second, these patents literally are from a different era.

[00:01:14] Speaker 02:
They have priority dates going back to 1987 or, in some cases, 1981.

[00:01:19] Speaker 02:
And understanding what is routine or conventional in the art has to take account of

[00:01:25] Speaker 02:
what time period the patents were submitted to the patent office during.

[00:01:30] Speaker 02:
The district court's analysis gave short shrift to that.

[00:01:33] Speaker 02:
And in particular, in the context of a judgment on the pleadings, the district court erred because deciding what's inventive 30 or 35 years ago has to rest at least in part on understanding of facts, of historical facts, rather than just as a pure question of law.

[00:01:52] Speaker 01:
And while we're not suggesting that the district court... Can you just get to the specifics, particularly on the 304, because I find that the most difficult one.

[00:02:02] Speaker 01:
You're not inventing digital transmission or anything like that.

[00:02:06] Speaker 01:
It's about encryption and two-step encryption, right?

[00:02:09] Speaker 02:
It's not about, respectfully, it's not about two-step decryption, because we're not claiming to have invented two-step decryption.

[00:02:16] Speaker 02:
We're claiming a method of key distribution that certainly does rest on decryption.

[00:02:21] Speaker 02:
But as the court said in Enfish, directed to an abstract idea doesn't mean that it involves an abstract idea somewhere.

[00:02:28] Speaker 01:
So you're claiming the transmission of the key over the digital lines?

[00:02:33] Speaker 02:
So there's a two-part transmission.

[00:02:35] Speaker 02:
And it is embedding the key to decode the second part within the first part.

[00:02:41] Speaker 02:
That's really the key innovation.

[00:02:43] Speaker 02:
I didn't mean to make a pun with the word key.

[00:02:45] Speaker 02:
But in the penultimate step of the claim, you'll see that the control signal must be used to decrypt.

[00:02:59] Speaker 02:
The decryption of the second part

[00:03:01] Speaker 02:
must be based on the control signal, which is the first decrypted part.

[00:03:05] Speaker 01:
But why isn't this just a patent on sending two types of information over a digital cable?

[00:03:12] Speaker 02:
It's not a patent on sending two types of information over whatever the transmission means might be.

[00:03:20] Speaker 02:
Because it requires that the decryption of the second has to be based on something encoded in the first.

[00:03:30] Speaker 02:
the decrypter at the ultimate destination.

[00:03:34] Speaker 01:
So there's two decryptors, basically.

[00:03:37] Speaker 01:
Somebody's gotten a first key some other way.

[00:03:40] Speaker 01:
And then you get this other package, which has a new key.

[00:03:44] Speaker 01:
And the old stuff will encode the key, which will then encode the information.

[00:03:50] Speaker 02:
That's right.

[00:03:50] Speaker 02:
And by having that second step, the second key,

[00:03:58] Speaker 02:
which doesn't rest hardwired at the station, but is transmitted dynamically with the programming, that gives the controller of the network more ability to, number one, do station-specific customization.

[00:04:14] Speaker 00:
So in other words, to send out... Where is that disclosed?

[00:04:16] Speaker 00:
Where are the advantages?

[00:04:19] Speaker 00:
of this claimed invention disclosed in your specification?

[00:04:22] Speaker 02:
I think the best places to look are at the very beginning of column 148, which is the beginning of example 7 in column 148.

[00:04:31] Speaker 02:
And there are some more general statements that I think are also helpful in column 5.

[00:04:36] Speaker 02:
And this obviously is a very long specification.

[00:04:38] Speaker 02:
It covers many more than just this one patent.

[00:04:42] Speaker 02:
But in column 5,

[00:04:44] Speaker 02:
It explains some of the- Is that exactly in the appendix?

[00:04:48] Speaker 02:
Sure.

[00:04:49] Speaker 02:
So column five, these are in the addendum to our blue brief, or in the appendix volume, that would be about- 308.

[00:04:57] Speaker 02:
Yeah, so column five is 308.

[00:05:01] Speaker 02:
And so this discusses the limitations of the prior art.

[00:05:07] Speaker 02:
no capacity for identifying.

[00:05:09] Speaker 00:
Which column and line number are you looking at?

[00:05:11] Speaker 02:
I'm looking at column 5, and the limitations in the prior art begin at line 38.

[00:05:19] Speaker 02:
And in particular, I guess halfway through that paragraph beginning at line 46, the capacity for automatically identifying decryption keys and inputting them to a decrypter to serve as a key for a step of the decryption

[00:05:35] Speaker 02:
And then the next sentence but one, no capacity for decrypting a transmission, then embedding a signal in the transmission.

[00:05:42] Speaker 02:
And it goes on to discuss both there and then at the other place I mentioned.

[00:05:46] Speaker 00:
I agree.

[00:05:47] Speaker 00:
It says that the prior doesn't have it.

[00:05:48] Speaker 00:
But where does it say why that's helpful or whether that's a technological improvement or anything like that?

[00:05:56] Speaker 02:
And I should have gone here first then.

[00:05:58] Speaker 02:
So this is A379, column 148, the beginnings of example seven.

[00:06:05] Speaker 02:
the capacity to compute the station-specific information at each subscriber station, and then the system of regulating means and methods.

[00:06:13] Speaker 01:
So what this is referring to, and it comes back to this several times throughout... I just don't understand how this is something that is novel or new and couldn't have been done before by other conventional means.

[00:06:29] Speaker 01:
I mean, couldn't you have had during World War II, and maybe you did,

[00:06:34] Speaker 01:
You know, at every individual intelligence station, they had their own specific encryption key.

[00:06:40] Speaker 01:
And when somebody sent a message, an encrypted message over the wireless or whatever they were using, they would send a code and a message so that they would have a station-specific code that was the start of the message, and then the encrypted message was the second part.

[00:06:59] Speaker 01:
And they would use their code to encode the new key to get to the message.

[00:07:03] Speaker 01:
It seems very likely to me that that's been done for hundreds of years, either through pen and paper or through some other kind of mechanism.

[00:07:11] Speaker 01:
And all you're doing is putting it on digital transmissions.

[00:07:15] Speaker 02:
But putting it in digital transmission has particular advantages in the network context, because you can, with a single signal, send a single transmission across the network that will be decrypted differently.

[00:07:27] Speaker 02:
In other words, it'll be received differently by multiple stations and decrypted differently.

[00:07:31] Speaker 02:
So for example,

[00:07:32] Speaker 02:
If it says to look in your read-only memory at a particular location for the relevant code, that may have one effect at a subscriber station that has certain access privileges, and it may have a different effect at a subscriber station that can decrypt more or less.

[00:07:50] Speaker 02:
All of that can be done with a single signal without having to send one signal to station number one, then another signal to station number two, each time repeating the entire encoded transmission.

[00:08:00] Speaker 00:
So you're saying that's disclosed in column 148?

[00:08:04] Speaker 02:
Well, example 7 goes through a number of these things.

[00:08:10] Speaker 02:
And I think that the advantages are first listed right there at the beginning of example 7, the capacity to compute station-specific information.

[00:08:19] Speaker 02:
And I'm trying to unpack that a little bit.

[00:08:23] Speaker 02:
What advantage does station-specific information have?

[00:08:28] Speaker 01:
Can you point to any place in the claims where these limitations exist?

[00:08:33] Speaker 02:
Well, in the claims, let me answer that in two ways.

[00:08:38] Speaker 02:
Well, first, what the district court missed was the step itself that I've been discussing, that the description has to be based on the signal encoded in the first one.

[00:08:49] Speaker 02:
But second, there are other aspects of, for example, the dependent claims that

[00:08:57] Speaker 02:
For example, claim 16, each station can store information recording how it decrypted the programming.

[00:09:07] Speaker 02:
That, and this is referred to in the specification, I don't have the column number right to hand for this, but it is in example seven.

[00:09:15] Speaker 02:
It explains, six or seven, it explains that having station specific information allows you

[00:09:22] Speaker 02:
once if you find a pirated transmission to uncover at which station it was decrypted using which variant of the code that was sent out.

[00:09:32] Speaker 02:
So in other words, it allows for tracking and billing customization.

[00:09:38] Speaker 02:
That's the second of the advantages referred to in column 148.

[00:09:41] Speaker 02:
And then the other independent claims in the 304 patent go to even more specific ways of doing this encoding

[00:09:51] Speaker 02:
Ways that could not have been done just with a one-time pad or a codebook cipher during World War II.

[00:10:00] Speaker 02:
So for example, using timing or location of the signal itself as the basis for the first code that is then used to decrypt the second code.

[00:10:13] Speaker 00:
I think in your argument, you make a step two analysis

[00:10:19] Speaker 00:
You seem to be relying on step two and saying that this is a technological improvement.

[00:10:23] Speaker 00:
How is this a technological improvement for this particular type of system as compared to other types of systems?

[00:10:31] Speaker 02:
So you're referring specifically to the 2004 patent?

[00:10:33] Speaker 00:
Yes.

[00:10:34] Speaker 00:
Yeah, I think that's what we're talking about.

[00:10:35] Speaker 02:
Right, right.

[00:10:36] Speaker 02:
Well, I mean, this is addressed, I think, in the declaration, that this is an improvement in the Weaver Declaration that the district court allowed us to file but then didn't consider at page 4059.

[00:10:48] Speaker 02:
that this addresses the problem of securely distributing the keys.

[00:10:53] Speaker 00:
But why is that unique to this particular programming network as opposed to other kinds of networks?

[00:11:00] Speaker 02:
Well, this doesn't claim a particular kind of programming network.

[00:11:04] Speaker 02:
It claims a particular kind of signal sent over the network.

[00:11:07] Speaker 00:
So I guess what I'm getting at is if cases like VDR are talking about a technological improvement for a particular system,

[00:11:14] Speaker 00:
How is the method that you've got here with the double decryption in particular beneficial for your system versus other kinds of systems, whether it be Judge Hughes's example of World War II technology or other kinds of technology?

[00:11:31] Speaker 02:
I think that the example that the advantages really come in the networked context versus other contexts that it basically it allows customization of

[00:11:41] Speaker 02:
a single code sent to multiple receiver stations to have different effects at different receiver stations in the decryption of the programming that's then sent with a single transmission.

[00:11:52] Speaker 02:
And I think to answer kind of the same question with respect to the 252 pattern, which dealt with upgrading operating systems by first comparing the hardware version at each receiver station

[00:12:08] Speaker 02:
Again, it's the same idea.

[00:12:10] Speaker 02:
A single signal sent across the entire network can have the desired effect by being received by multiple stations and having the desired effect at the ones where it should and not at the ones where it shouldn't without having to send individual transmissions to each station directing each one to update or not update, as the case might be.

[00:12:33] Speaker 02:
I see I'm into my rebuttal time, but I'd like to make sure I've answered your questions at this point.

[00:12:38] Speaker 03:
Good morning.

[00:12:53] Speaker 03:
I think the argument exposed exactly the problem.

[00:12:56] Speaker 03:
The magic in the claims apparently is in the signal itself or in the information sent or in the instructions that are sent.

[00:13:03] Speaker 03:
So no matter which patent you look at.

[00:13:05] Speaker 01:
Why isn't the technological advantage, which your friend was just saying, that before digital transmissions, if you wanted to do this two-stop encryption method any other way, you'd have to send separate messages.

[00:13:20] Speaker 01:
And that this new system and this new patented invention allows you to send out one signal broadcast to

[00:13:28] Speaker 01:
Maybe, I know that it's probably not in the claims, maybe hundreds and thousands of subscribers.

[00:13:33] Speaker 01:
And with one thing, you can get a bunch of different encrypted messages.

[00:13:37] Speaker 01:
Right.

[00:13:37] Speaker 03:
It's not in the claims.

[00:13:39] Speaker 03:
I'll go with the analogy.

[00:13:40] Speaker 03:
And I think we gave some good analogies to the district court.

[00:13:42] Speaker 03:
And the district court liked the analogies and incorporated them into the opinion.

[00:13:46] Speaker 03:
It's very easy to send the message and the encryption key, as they call it.

[00:13:50] Speaker 03:
The key's not in the claim either.

[00:13:52] Speaker 03:
But it's very easy to send that all at once.

[00:13:53] Speaker 03:
If I sent you an envelope with the message inside the envelope,

[00:13:58] Speaker 03:
and an encryption on the outside of the envelope.

[00:14:00] Speaker 03:
And how to open the envelope, I sent both the message and the encryption in a single message.

[00:14:05] Speaker 03:
So doing it once, doing it simultaneously, the district court recognized is not magic.

[00:14:10] Speaker 03:
And just simply saying, I'm doing it digitally, well, all computer functions are digitally.

[00:14:14] Speaker 03:
So saying, do it on a computer, is doing it digitally.

[00:14:18] Speaker 03:
And obviously, doing it on a computer under Alice does not make an invention.

[00:14:22] Speaker 03:
The district court fully understood this, and the oral argument was extensive on each of these patents.

[00:14:27] Speaker 03:
Well over an hour.

[00:14:29] Speaker 00:
You say that the claim doesn't have the key in it.

[00:14:31] Speaker 00:
Is that because the claim is directed to control information, which is pretty broad?

[00:14:35] Speaker 03:
Yes, and in fact, I want to get to the claim construction.

[00:14:38] Speaker 03:
I think when we look at the claims, they do rely on these claim constructions.

[00:14:42] Speaker 03:
And on the 252 and the 304 are the two patents, the only two patents, where they say the claim construction mattered.

[00:14:50] Speaker 03:
Well, they never explained to the district court how the claim construction mattered.

[00:14:54] Speaker 03:
The district court adopted the claim construction.

[00:14:56] Speaker 03:
The district court quoted from the claim constructions.

[00:14:59] Speaker 03:
There's no basis to say the district court disregarded anything.

[00:15:03] Speaker 03:
And if you go into the joint appendix at 3935, their claim constructions are very, very broad.

[00:15:11] Speaker 03:
And let's look at what a control signal is.

[00:15:14] Speaker 03:
And they have a definition.

[00:15:16] Speaker 03:
Control signals at the bottom of 3935, which the district court asked them to give.

[00:15:24] Speaker 03:
The district court gave PMC

[00:15:26] Speaker 03:
every benefit of the doubt, and of course considered the Weaver Declaration, of course considered all the arguments that PMC could make, and accepted these claim constructions even after the oral argument, and look at the definition of control signal.

[00:15:45] Speaker 03:
It means a signal that carries information or data that affects controls or enables processing.

[00:15:54] Speaker 03:
I don't think you could get broader than that.

[00:15:57] Speaker 03:
I don't see how sending a signal that affects processing could be any broader.

[00:16:04] Speaker 00:
You said that the judge considered the Weaver Declaration.

[00:16:07] Speaker 00:
Is that because he never said that he didn't consider it?

[00:16:09] Speaker 00:
And what is your basis for saying he considered it?

[00:16:11] Speaker 03:
I have much more than that, yes.

[00:16:13] Speaker 03:
That's a great question.

[00:16:14] Speaker 03:
First of all, when he accepted the Weaver Declaration, he accepted it by name.

[00:16:19] Speaker 03:
He said, please file the Weaver Declaration, and that's in his order.

[00:16:23] Speaker 03:
That's at Joint Appendix 4924.

[00:16:28] Speaker 03:
And he said, file your supplemental brief together with the affidavit of Dr. Alfred C. Weaver, exhibit B to the motion.

[00:16:37] Speaker 03:
That was refiled in the docket as docket number 135.

[00:16:41] Speaker 03:
The supplemental brief was filed as docket number 134.

[00:16:45] Speaker 03:
But if we go to the district court opinion,

[00:16:50] Speaker 03:
and the reason why I know all the Weaver arguments were considered, before the district court, they did not argue step two.

[00:16:58] Speaker 03:
They had nothing on inventive concept.

[00:17:01] Speaker 03:
If you read the oral argument before the district court, the lawyer for PMC never once said inventive concept.

[00:17:08] Speaker 03:
Their entire argument was, it's not abstract, and preemption.

[00:17:13] Speaker 03:
They did not argue step two.

[00:17:16] Speaker 03:
Only after the oral argument did they say, let's submit Weaver,

[00:17:21] Speaker 03:
and they submitted a supplemental brief which repeated the Weaver arguments.

[00:17:25] Speaker 03:
And if you go to the district court opinion, the district court opinion repeatedly cites the supplemental brief which incorporated all the Weaver arguments.

[00:17:35] Speaker 03:
For example, if we go to the first patent is the 243 patent in the district court opinion at A8, middle paragraph.

[00:17:44] Speaker 03:
It begins, plaintiff also argues that claim 13 supplies an inventive concept.

[00:17:50] Speaker 03:
The district court cites DI 134 at page 17.

[00:17:56] Speaker 03:
Unfortunately, the entire supplemental brief is not on the Joint Appendix, but there's enough in the Joint Appendix to show you that the supplemental brief cites to Weaver virtually every other sentence, cites to Weaver, Weaver, Weaver.

[00:18:08] Speaker 03:
The district court cites page 17.

[00:18:10] Speaker 03:
That brief, that page is the novelty arguments made by Weaver.

[00:18:15] Speaker 03:
The trouble with Weaver is it's not relevant.

[00:18:18] Speaker 03:
Weaver is not a relevant declaration.

[00:18:19] Speaker 03:
He didn't do a step one, step two analysis.

[00:18:22] Speaker 03:
All he said was, this claim is novel because broadcast TV didn't do it that way.

[00:18:29] Speaker 03:
The district court understood the irrelevance of these arguments.

[00:18:33] Speaker 03:
But look at the opinion of the district court.

[00:18:35] Speaker 03:
It cites id, the next sentence, the next sentence, id.

[00:18:39] Speaker 03:
Those are all citations to the supplemental brief incorporating all the Weaver arguments.

[00:18:44] Speaker 03:
If you go to the next page at A9 of the district court opinion, he even says that the method was new means of transmitting is not relevant.

[00:18:54] Speaker 03:
He's accepting their arguments of Weaver and saying even if Weaver is correct, that it's new is not relevant here.

[00:19:02] Speaker 03:
And he continues, and on each of the patents I can show you more and more citations to the supplemental brief which incorporated all the Weaver arguments.

[00:19:09] Speaker 03:
The point is, on a motion to dismiss or judgment on the pleadings, you're free to make any argument you want if it's reasonable, common sense, can be inferred by the district court judge.

[00:19:20] Speaker 03:
Whether it's in the brief or the declaration doesn't matter.

[00:19:24] Speaker 03:
What's wrong with the gray brief is they assume that Weaver raised controverted facts, that there's a genuine issue of material fact.

[00:19:33] Speaker 03:
That's not true.

[00:19:34] Speaker 03:
We're not opposing what Weaver says.

[00:19:37] Speaker 03:
Neither was the district court.

[00:19:39] Speaker 03:
The point is what Weaver said wasn't legally relevant.

[00:19:43] Speaker 03:
It's not legally relevant because there was no analysis of what was abstract.

[00:19:47] Speaker 03:
As a matter of fact, Weaver doesn't even acknowledge anything is abstract.

[00:19:50] Speaker 00:
Let me just give you a general question, which is what do you think the role is of conventional and conventionality in a one-on-one analysis?

[00:19:58] Speaker 03:
That's a great question, too.

[00:20:01] Speaker 03:
Weaver redefines what's conventional.

[00:20:03] Speaker 03:
He uses conventional as if it means the primary or most prevalent way

[00:20:09] Speaker 03:
That's not what conventional means at all.

[00:20:11] Speaker 03:
And in fact, this court just came out with an opinion last week in the Amherst case.

[00:20:15] Speaker 03:
Conventional means that it's in the prior art.

[00:20:19] Speaker 03:
It was known.

[00:20:20] Speaker 03:
And we know all this is conventional and known, because all these claims have been rejected, by the way, on IPRs based on the prior art.

[00:20:28] Speaker 03:
So we noticed that with related cases, with related appeals.

[00:20:32] Speaker 00:
The district court didn't rely on that at all.

[00:20:34] Speaker 03:
Oh, no.

[00:20:35] Speaker 03:
That all happened after the district court decision.

[00:20:37] Speaker 03:
The district court reached its decision on its own.

[00:20:40] Speaker 03:
It was not influenced by any IPRs.

[00:20:43] Speaker 03:
The IPRs occurred after the district court decision and while briefing was taking place.

[00:20:49] Speaker 01:
Are those decisions not final?

[00:20:55] Speaker 03:
In the patent office, do you mean?

[00:20:56] Speaker 03:
I mean, are they on appeal here?

[00:20:59] Speaker 03:
Some are on appeal.

[00:21:02] Speaker 03:
Three or four have been denied on rehearing.

[00:21:05] Speaker 03:
Three are still pending rehearing in the Patent Office.

[00:21:08] Speaker 03:
We have delayed all the briefing in those appeals pending the outcome here.

[00:21:13] Speaker 03:
And that's what's been happening in those cases.

[00:21:16] Speaker 00:
But your position here, as I understand it, is whether things are conventional or not.

[00:21:20] Speaker 00:
There's an abstract idea here in the District Court that they're finding that.

[00:21:24] Speaker 00:
And moreover, there's no technological improvement of the type that you'd find in DDR or something like that.

[00:21:30] Speaker 03:
Correct.

[00:21:31] Speaker 03:
Your questions on the specification are key.

[00:21:34] Speaker 03:
If you look at DDR, Bascom, even Intellectual Ventures, if you look at some of these cases, you'll notice this court very carefully adheres to the specification of the claims in deciding whether or not there is a technological context or technological improvement.

[00:21:53] Speaker 03:
Here, there is no citation to the specification showing any advance over the art.

[00:21:59] Speaker 03:
And they cannot show anything in the specification because the claims aren't that specific.

[00:22:05] Speaker 03:
The claims cover all technological contexts.

[00:22:09] Speaker 03:
If it's a network, they believe that's the field.

[00:22:13] Speaker 03:
That's what was the significance of their complaint.

[00:22:16] Speaker 03:
The complaint calls all these inventions platform agnostic.

[00:22:20] Speaker 03:
They don't want them to be tied to a technological field.

[00:22:23] Speaker 03:
And if you look at the complaint, which we assume is true,

[00:22:27] Speaker 03:
They basically said, Amazon, in paragraph 9 of the complaint, which is in your Joint Appendix, volume 3, all the procedural matters in this case are in volume 3 of the Joint Appendix.

[00:22:38] Speaker 03:
They make it very clear, if Amazon does it, it infringes.

[00:22:43] Speaker 03:
And that's paragraph 9 on 1453 of the Joint Appendix.

[00:22:48] Speaker 03:
They basically explain what Amazon does.

[00:22:51] Speaker 03:
They say Amazon sells, retailers, we sell Kindles, Kindle fires, websites,

[00:22:56] Speaker 03:
and paragraph 9, and they say, the aforementioned systems, methods, services, products are collectively referred to here and in as the Amazon accused products.

[00:23:07] Speaker 03:
There's no way they can seriously, on a Rule 12 motion, act as if these claims are narrow and specific.

[00:23:14] Speaker 03:
They're not.

[00:23:15] Speaker 03:
They're alleged to be broad and not technologically specific.

[00:23:19] Speaker 03:
That's the whole point.

[00:23:20] Speaker 03:
These claims claim a functional result

[00:23:24] Speaker 03:
with nothing specific on how to do it.

[00:23:27] Speaker 03:
This court has several cases explaining this.

[00:23:30] Speaker 03:
In fact, we did 28-J letters.

[00:23:32] Speaker 03:
There were seven 28-J letters in this case.

[00:23:35] Speaker 03:
I've never seen seven 28-J letters.

[00:23:37] Speaker 03:
But you'll notice there was no response to my 28-J letter on the two Affinity Labs cases.

[00:23:43] Speaker 03:
And one of those Affinity Lab cases was against Amazon.

[00:23:47] Speaker 03:
We've already established the legal propositions that I need today to show that claiming

[00:23:53] Speaker 03:
functional results at 50,000 feet is abstract, the true even layman definition of abstract.

[00:24:02] Speaker 03:
They purposely abstracted the claims to cover technology that might exist someday.

[00:24:10] Speaker 03:
And they had nothing in the claims or the specification giving anything technological to teach anybody how to do anything.

[00:24:19] Speaker 03:
And that's why there are numerous examples, analogies, that would apply to all these claims to show that these problems pre-existed computers, they're not specific to computers, they cover all economic practices.

[00:24:34] Speaker 03:
We say they cover economic practices.

[00:24:36] Speaker 03:
Their response is, oh no, they cover much more than that.

[00:24:39] Speaker 03:
This is a validity case.

[00:24:40] Speaker 03:
And they're talking about the breadth of the claims in the reply brief, that they cover economic practices and more, which to me is

[00:24:49] Speaker 03:
nothing short of really the very four or five pages of the reply brief, they admit the claims are so broad that of course they cover economic practices.

[00:24:57] Speaker 00:
The judge didn't decide it on the basis of economic practices, right?

[00:25:01] Speaker 03:
Oh, he thought they were broader.

[00:25:03] Speaker 03:
For example, he contrasted the claims with Ultramershal and said, look at Ultramershal.

[00:25:08] Speaker 03:
Ultramershal is a great case talking about enticing someone to listen to an advertisement to get additional material.

[00:25:15] Speaker 03:
He says, these claims are broader.

[00:25:17] Speaker 03:
Because under the claim construction, and he quotes the claim construction, this programming is much more than advertisements.

[00:25:23] Speaker 03:
It's beyond economic.

[00:25:25] Speaker 03:
It's more than economic.

[00:25:27] Speaker 03:
These claims are so broad, anybody who uses the internet infringes some of these claims, period.

[00:25:34] Speaker 03:
They essentially conceded that before the district court, and they were unable to explain to the district court how anyone can use the internet.

[00:25:41] Speaker 03:
Press that shopping cart, you infringe.

[00:25:43] Speaker 03:
And that's why this is a very serious case as far as Amazon is concerned.

[00:25:47] Speaker 03:
This is the worst scenario for the patent system as far as we're concerned.

[00:25:54] Speaker 03:
And if there's no further questions, I dedicate the rest of my time to the court.

[00:25:58] Speaker 03:
Thank you.

[00:26:08] Speaker 02:
Just a few points in rebuttal.

[00:26:11] Speaker 02:
pick up, in particular, on Judge Stoltz's question about what is conventional.

[00:26:15] Speaker 02:
And what my friend says is that conventional just means it's in the prior art.

[00:26:19] Speaker 02:
Now, this court has been very clear that the 101 analysis is not the same thing as the anticipation or obviousness analysis.

[00:26:27] Speaker 02:
And I think my friend's alluding to the IPR really just makes my point.

[00:26:32] Speaker 02:
We would love the chance to litigate on the facts, the questions of anticipation,

[00:26:38] Speaker 02:
and the comparisons to the prior art that would underline obviousness analysis.

[00:26:42] Speaker 02:
But what my friends have persuaded the district court to do is to use the much blunter instrument of 101 to invalidate all of these across the board.

[00:26:50] Speaker 02:
Now, what's conventional in a 101 case is not just synonymous with it is somewhere in the prior art.

[00:26:55] Speaker 00:
Let me ask you this.

[00:26:56] Speaker 00:
What is the role of conventionality, regardless of what it means?

[00:26:59] Speaker 00:
What is its role in a 101 case?

[00:27:02] Speaker 02:
Its role in the second step is to distinguish between innovations that aren't

[00:27:07] Speaker 02:
that aren't really innovative, that don't add to something more the Supreme Court has been talking about in its 101 cases.

[00:27:19] Speaker 00:
What about what he argues that you never argued step two below?

[00:27:25] Speaker 02:
agreed that the district court allowed us to file a supplemental brief.

[00:27:28] Speaker 02:
I don't think that he can argue waiver and at the same time point out that, one, the district court allowed us to file a supplemental brief, two, the district court decided it, and three, say that it's all a question of law anyway.

[00:27:40] Speaker 02:
So we certainly have argued step two to this court, and we're arguing that

[00:27:45] Speaker 02:
these claims rest on, to the extent that they're directed to an abstract idea at all, they contain a sufficient degree of invented step that they are something more.

[00:27:54] Speaker 02:
And the question is, now is that something more doesn't count?

[00:27:58] Speaker 02:
Does that something more not count?

[00:27:59] Speaker 02:
Because it was simply routine or conventional in the art.

[00:28:02] Speaker 02:
And I think the fact that the court has been careful to say routine and conventional, routine or conventional, explains why

[00:28:09] Speaker 02:
just saying that it existed somewhere in the prior art is not a correct definition of what it means to be conventional.

[00:28:15] Speaker 02:
So for example, going back to the Weaver Declaration, but this is stated in the specification as well.

[00:28:21] Speaker 02:
But at 4060, Dr. Weaver says that remote reprogramming, which is what the 252 patent is directed to, was anything but conventional at the time, because it could be done

[00:28:34] Speaker 02:
by individuals walking up to a computer with a floppy disk, but doing it remotely over an entire network with a single signal that would then distinguish between hardware versions, that was not conventional.

[00:28:45] Speaker 02:
And so even if the idea of reprogramming is an abstract idea, this type of remote reprogramming done in a specific way that involves comparing a particular piece of data that indicates the hardware version and also indicates the operating system version

[00:29:01] Speaker 02:
That's what's inventive.

[00:29:03] Speaker 00:
Are you talking about the 304 patent?

[00:29:05] Speaker 02:
That's the 252 patent.

[00:29:08] Speaker 02:
On the 304 patent, I want to make sure, if I may, with the court's indulgence.

[00:29:12] Speaker 01:
You can finish briefly.

[00:29:13] Speaker 02:
Thank you very much.

[00:29:14] Speaker 02:
Your Honor had asked me about what's inventive about the 304, and I didn't have the column reference to hand.

[00:29:22] Speaker 02:
Column 157, line 57.

[00:29:24] Speaker 02:
There's some more discussion of the point that I was making about why it's useful to have subscriber station specific decryption involved in the process.

[00:29:35] Speaker 02:
Ultimately, my friends say that these are platform agnostic.

[00:29:40] Speaker 02:
and that therefore they must be super, super broad.

[00:29:43] Speaker 02:
Now, if we were making a field of use limitation argument, my friend would be up here saying that doesn't count in the 101 analysis.

[00:29:49] Speaker 02:
The reason that these claims are not directed to an abstract idea, and that even if they were, they would survive step two, is that they rest on a narrow application and a specific, in the 304 pattern, a specific construct that requires the transmission to be structured in a very particular way.

[00:30:08] Speaker 02:
If we adding or subtracting a field of use limitation is not what matters for 101, what matters is that this is not broadly preemptive because of how the claims are structured.

[00:30:19] Speaker 02:
It's structured in a way that solves a network problem, was not routine or conventional at the time, and doesn't have a broad preemptive suite.

[00:30:27] Speaker 02:
Thank you for your understanding.