[00:00:00] Speaker 04:
Data Solutions versus AKM Enterprise, 2016-2004.

[00:00:07] Speaker 04:
You've lost your audience.

[00:00:14] Speaker 04:
The important audience is sitting right here, waiting.

[00:00:20] Speaker 04:
We'll be ready when you are, Mr. Whitaker.

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

[00:00:51] Speaker 03:
Good morning.

[00:00:52] Speaker 03:
May it please the court.

[00:00:53] Speaker 03:
My name is Malcolm Whitaker, and I'm here today on behalf of Plaintiff Appellant TDE Petroleum Data Solutions.

[00:01:01] Speaker 03:
With me is Dr. Eric Maidla.

[00:01:03] Speaker 03:
Dr. Maidla is the president and part owner of TDE.

[00:01:07] Speaker 03:
TDE has built a very successful business based in the patent on suit, namely US Patent 6892812.

[00:01:17] Speaker 04:
But what you've got are a couple of claims, method and assistant claim.

[00:01:23] Speaker 04:
And looking at the method claim, you're dealing with the plurality of states, that's data, receiving data, determining that some of the data are valid by comparing data, and then selecting one of the states.

[00:01:40] Speaker 04:
This is all data handling.

[00:01:43] Speaker 03:
I think you're falling into the same misconception that the district court did, right?

[00:01:49] Speaker 03:
The data cases that you're talking about, for example, Digitech that your honor wrote, that was... I didn't write Digitech.

[00:01:58] Speaker 01:
I was on the panel.

[00:02:00] Speaker 01:
You might avoid attributing certain decisions of this court to certain judges, because once they're issued, they're decisions of the court.

[00:02:07] Speaker 01:
So it doesn't matter who wrote them.

[00:02:09] Speaker 03:
Yes, your honor.

[00:02:10] Speaker 03:
My apologies.

[00:02:13] Speaker 03:
In Digitech, that called out a pure data set, a first data set, and a second data set.

[00:02:21] Speaker 03:
And then you combined the first data set and the second data set into the device profile.

[00:02:27] Speaker 03:
So here, what we have, which is different, we have a technological solution to a technological problem.

[00:02:39] Speaker 03:
Digitech is just, I've got a piece of information, I've got another piece of information, color and location, I put them together.

[00:02:46] Speaker 04:
You say solution to a problem.

[00:02:48] Speaker 04:
We have to look at the claims.

[00:02:50] Speaker 03:
Yes.

[00:02:51] Speaker 04:
And so the claims deal with data handling.

[00:02:55] Speaker 03:
Well, they deal with data handling in the sense that we have data coming from

[00:03:02] Speaker 03:
tangible physical machinery, the machinery that makes up an oil rig.

[00:03:07] Speaker 04:
You're not claiming machinery.

[00:03:08] Speaker 03:
No, could you?

[00:03:10] Speaker 03:
Well, if we look at, for example, claim one, element two, it recites receiving mechanical and hydraulic data reported for the well operation from a plurality of systems.

[00:03:26] Speaker 03:
And we know from column four,

[00:03:30] Speaker 03:
that the plurality of, we know that the plurality of systems is oil well, the components that make up the oil rate.

[00:03:41] Speaker 03:
Kellies, a kelly, a top drive, a mud pump, a mud tank.

[00:03:49] Speaker 01:
But those claims aren't directed to any of those specific things.

[00:03:52] Speaker 01:
You didn't invent any of those components of the drilling system, did you?

[00:04:00] Speaker 03:
The inventors did not invent the mud tank.

[00:04:03] Speaker 03:
But I think you're falling into the same trap the district court did.

[00:04:09] Speaker 01:
Maybe I'm just agreeing with the framework that the district court imposed here.

[00:04:16] Speaker 03:
OK.

[00:04:17] Speaker 03:
But what we've got here and what the abstractions, the Alice cases, all require is they don't have input from a tangible physical machine.

[00:04:27] Speaker 03:
For example, in Digitech, the Digitech court held Digitech patents were ineligible because the claim, and I'm reading from the opinion, thus recites an ineligible abstract process of gathering and combining data.

[00:04:39] Speaker 01:
What difference does it make that the data comes from a physical machine as opposed to data that involves

[00:04:47] Speaker 01:
color or financial information or the like.

[00:04:51] Speaker 01:
It's still data.

[00:04:53] Speaker 03:
Okay.

[00:04:55] Speaker 03:
In Alice, we talked, the Supreme Court talked about we don't want to allow... Let me back up, because this is a question that I really want to make sure I understand.

[00:05:05] Speaker 01:
You have a lot of claims in this patent, and a lot to add little dependent things here and there.

[00:05:13] Speaker 01:
It did not seem to me from reading your briefs that you argued

[00:05:16] Speaker 01:
separately that some of them, even if we agree with the district court, that the others were still eligible for other reasons.

[00:05:25] Speaker 01:
Are you basically, do they all stand or fall together?

[00:05:30] Speaker 03:
I would say that particularly the claims that recite tangible physical structure, tangible physical machinery, are distinct from the other claims.

[00:05:41] Speaker 03:
But even claim one.

[00:05:42] Speaker 01:
But did you argue them separately?

[00:05:44] Speaker 01:
I didn't see that really in your briefs other than,

[00:05:46] Speaker 01:
maybe a small reference in your reply brief that said some of these defendant claims add additional machinery.

[00:05:54] Speaker 01:
But it didn't explain how that additional machinery transformed the abstract idea.

[00:06:00] Speaker 03:
Well, there's nothing in the record below that suggests that using that machinery, for example, if we look at claim one, we have

[00:06:14] Speaker 03:
For example, receiving mechanical and hydraulic data reported for the well operation from a plurality of systems.

[00:06:20] Speaker 03:
All of the Alice, which was intermediate settlement, the Supreme Court said, we don't want the person with the cleverest patent lawyer to be able to grab old business methods, doing things faster,

[00:06:35] Speaker 03:
and organizing human behavior on a computer.

[00:06:38] Speaker 04:
Mr. Whittaker, if we don't agree with you, and if we conclude that the claims claim an abstract idea, that doesn't necessarily preclude you from patent eligibility, does it?

[00:06:54] Speaker 00:
No.

[00:06:54] Speaker 04:
There is step two.

[00:06:56] Speaker 04:
What is there that is something more

[00:07:00] Speaker 04:
that is in the claims that should meet the Supreme Court's test.

[00:07:05] Speaker 03:
Well, I'm glad you asked that question, Your Honor.

[00:07:08] Speaker 03:
So the way Alice teaches us to look, if we move to the inventive step, and with respect, I don't agree that the claims recite abstract ideas because of the presence of the tangible physics.

[00:07:24] Speaker 03:
We understand that.

[00:07:26] Speaker 03:
Thank you, Your Honor.

[00:07:27] Speaker 03:
So our step two tells us that if a claim is abstract, it can still be patent eligible if it has an inventive concept that is substantially more than the abstract idea.

[00:07:36] Speaker 04:
Is this really, despite whether the Supreme Court was right or wrong in melding 102 and 103 into 101, is that really what's at issue?

[00:07:50] Speaker 04:
Something more means something different, maybe even non-obvious.

[00:07:57] Speaker 04:
Is that what something more is?

[00:07:59] Speaker 04:
And do you meet it here?

[00:08:01] Speaker 04:
And how?

[00:08:01] Speaker 03:
The case law seems to suggest that it's, are the steps conventional or well-known?

[00:08:11] Speaker 03:
And I agree with Your Honor that sometimes that seems to

[00:08:17] Speaker 03:
the analysis seems to be a 102, 103 analysis, even when it's not acknowledged that way.

[00:08:24] Speaker 03:
But if I've answered that question, if I might step through the different elements of claim one and talk to you about why they're not conventional or well-known and why the record below doesn't support that.

[00:08:39] Speaker 03:
So with respect to the storing well states, the very first element of claim one,

[00:08:46] Speaker 03:
A good illustration of this is Mobilize's fictitious drilling engineer, Tom, who only had a 25% chance.

[00:08:54] Speaker 03:
And we talk about that in A370 and in our principal brief at pages 9 to 10.

[00:08:59] Speaker 03:
And if we look at Mobilize's reference, Hutchinson, found at A817, figure 6A, shows a patent that purports to determine five, but not all 16 well states.

[00:09:11] Speaker 03:
So our claims expressly call out all 16 well states, but yet there's not any references that teach or claim those 16 references.

[00:09:21] Speaker 03:
So storing the 16, I don't think there is any evidence in the record that that's conventional or well known.

[00:09:30] Speaker 03:
Now, validating data by comparing to a limit.

[00:09:34] Speaker 04:
Well, the claim doesn't recite all, or the issue isn't all versus some.

[00:09:42] Speaker 04:
It's still data.

[00:09:45] Speaker 02:
Were those 16 well states known previously to a petroleum engineer?

[00:09:53] Speaker 03:
A petroleum engineer would likely have known those states.

[00:09:58] Speaker 03:
The difficulty is that what we have is a combination, right?

[00:10:02] Speaker 03:
This was a breakthrough patent.

[00:10:04] Speaker 03:
In fact, Dr. Maid will have bought the patent for half a million dollars.

[00:10:09] Speaker 03:
from his employer and set up his own business to do this, because nobody could do this before.

[00:10:14] Speaker 04:
Of course, the question isn't whether it's a good idea, even a great idea.

[00:10:19] Speaker 04:
I mean, there are lots of great ideas.

[00:10:22] Speaker 04:
And based on the Alice test, they don't meet the test for patent eligible subject matter.

[00:10:29] Speaker 04:
So it's not a question of whether it's a great idea or not.

[00:10:33] Speaker 03:
I acknowledge that.

[00:10:37] Speaker 04:
Step two is whether there's something more.

[00:10:39] Speaker 04:
And where have we found something more?

[00:10:43] Speaker 04:
DDR?

[00:10:45] Speaker 03:
In DDR, that was the self-referential table.

[00:10:50] Speaker 03:
You did find something more in self-referential table.

[00:10:53] Speaker 01:
Self-referential table was in FISH, and it wasn't done under something more.

[00:10:56] Speaker 01:
It was done under study 1 of ALIS.

[00:10:58] Speaker 03:
Under abstracts.

[00:10:59] Speaker 03:
Yes, you're correct.

[00:11:04] Speaker 03:
The distinction with all of those cases was that they weren't a technological solution to a technological problem.

[00:11:13] Speaker 03:
If I might talk to you for a moment about the validating data step, right?

[00:11:19] Speaker 03:
Mobilizer's own invalidity references teach us that there are at least 20 different ways of validating data.

[00:11:25] Speaker 02:
How do you define a technological problem as opposed to any other kind of problem that involves technology?

[00:11:33] Speaker 03:
No, I would say a technological problem is Diamond v. Deere making rubber, right?

[00:11:38] Speaker 03:
That was a relatively simple case.

[00:11:40] Speaker 03:
You've got a temperature sensor.

[00:11:43] Speaker 03:
You've got a press.

[00:11:44] Speaker 03:
You've got rubber.

[00:11:45] Speaker 03:
Do we know is it cured or is it uncured?

[00:11:48] Speaker 03:
The input there is the temperature.

[00:11:49] Speaker 04:
But that changed one substance into another, right?

[00:11:53] Speaker 03:
Yes.

[00:11:54] Speaker 04:
It doesn't seem to happen on time one.

[00:11:57] Speaker 03:
Well, if you think about what Deere said,

[00:12:03] Speaker 03:
What it did was it told you the state of the rubber is uncured.

[00:12:06] Speaker 03:
And then it told you, now the state of the rubber is cured.

[00:12:10] Speaker 03:
It wasn't really telling you the rubber is cured or uncured.

[00:12:13] Speaker 03:
It's telling you the state of the rubber is cured versus uncured.

[00:12:18] Speaker 03:
And it's doing that off one data input.

[00:12:20] Speaker 03:
But it's data input from a piece of machinery.

[00:12:23] Speaker 03:
And all of the cases, Alice, Bilsky, they don't bring in data from technological

[00:12:32] Speaker 03:
from machinery, right?

[00:12:34] Speaker 03:
If a hedging or if a hedge or an intermediate settlement fell on your foot, you'd be perfectly fine.

[00:12:40] Speaker 03:
If a top driver, a Kelly, fell on you, it crushed you.

[00:12:44] Speaker 01:
But isn't the issue in DR and why the Supreme Court found it patentable is that it was using that abstract idea to

[00:12:54] Speaker 01:
change a process and improve the process and in the case of the rubber tell you when the curing was done.

[00:13:02] Speaker 01:
What is your abstract idea, assuming we think it's abstract under step one, do

[00:13:10] Speaker 01:
at all, except tell you what state it is.

[00:13:13] Speaker 01:
Do the claims then further cover, if it's in this state, the drill should do this, or the drill should do this, or the drill should do this?

[00:13:22] Speaker 01:
Or is it just telling you, at the end of the day, the drill state is x?

[00:13:27] Speaker 03:
Well, it claims 30, it claims 60, and it claims 90.

[00:13:30] Speaker 03:
We talk about controlling it, controlling the well operation based on what the determination of the well state is.

[00:13:37] Speaker 03:
And in the spec, they talk about that.

[00:13:39] Speaker 03:
But it's not other than in claims 30, 60, and 90 at times.

[00:13:42] Speaker 01:
But what does it say about controlling it?

[00:13:44] Speaker 01:
Does it just tell you you can control it based upon the state?

[00:13:47] Speaker 01:
Or does it actually, like deer, use that mathematical formula to continue curing or not continue curing?

[00:13:55] Speaker 03:
Well, for example, and I see I'm into my rebuttal time here.

[00:14:01] Speaker 03:
For example, if you take a kick of gas, like they did in the condo,

[00:14:06] Speaker 03:
If you're in the tripping state, as opposed to in slips or drilling, a person of ordinary skill in the art will know that you take different countermeasures to contain the kick of gas when you're in each of those different states.

[00:14:24] Speaker 03:
And a person of ordinary skill in the art knows that.

[00:14:26] Speaker 02:
But you've not patented that person of ordinary skill.

[00:14:30] Speaker 02:
He's not part of your operation.

[00:14:36] Speaker 02:
That's the difference between what you're saying here and what DEER did.

[00:14:43] Speaker 03:
Well, what DEER did is it told you, is the rubber in the cured state or is the rubber in the uncured state?

[00:14:50] Speaker 03:
Here, we're taking this raw information from machines.

[00:14:55] Speaker 03:
It's not just an abstract idea.

[00:14:57] Speaker 03:
It's taking raw data from a plurality of well systems.

[00:15:00] Speaker 03:
It's validating it in a very specialized way.

[00:15:04] Speaker 03:
We talk in the briefs.

[00:15:05] Speaker 03:
about how there's a large number, more than 30 different ways of validating data.

[00:15:14] Speaker 03:
How is it common knowledge between you?

[00:15:16] Speaker 02:
Thank you for you to say that you're transforming sensor data representative of a physical object into another state, which is what you do say in your blueberry.

[00:15:27] Speaker 03:
Yes.

[00:15:30] Speaker 02:
Which is what your opponent in the red brief says you didn't raise before the district court.

[00:15:37] Speaker 03:
If I may point to 744 and 745.

[00:15:42] Speaker 03:
Thank you.

[00:15:56] Speaker 03:
At the bottom of A744, we talk about the machine or transformation test, where we say we cite Fairfield Industries.

[00:16:04] Speaker 03:
This stems from the Federal Circuit's machine or transformation test, which provides a useful and important clue.

[00:16:12] Speaker 03:
The test considers whether the invention is tied to a particular machine or apparatus, which we very clearly have here.

[00:16:19] Speaker 03:
It's well machinery that collects mechanical or hydraulic data.

[00:16:24] Speaker 03:
and transforms the particular article into a different state or thing.

[00:16:28] Speaker 03:
So we argued machine transformation test in the district court, A744 to A745.

[00:16:35] Speaker 03:
And here, what we've done is we've taken this raw data that's representative.

[00:16:41] Speaker 03:
We filter it, and then we determine what the well state is.

[00:16:46] Speaker 03:
And if you look at figures 5A and 5B of our patent, the 812 patent,

[00:16:51] Speaker 03:
We have a mathematical formula for doing that.

[00:16:54] Speaker 03:
That's what they did in Deere.

[00:16:55] Speaker 03:
They took data.

[00:16:56] Speaker 03:
They used a mathematical formula.

[00:16:58] Speaker 03:
That's what they do in ours.

[00:16:59] Speaker 03:
We take data.

[00:17:00] Speaker 03:
We use a mathematical formula.

[00:17:01] Speaker 04:
You've consumed your time, but let's hear from the other side, and we'll give you three minutes of rebuttal time.

[00:17:06] Speaker 03:
Thank you, Your Honor.

[00:17:20] Speaker 04:
Mr. Mims.

[00:17:22] Speaker 00:
Good morning.

[00:17:23] Speaker 00:
May it please the court?

[00:17:26] Speaker 00:
I'm Peter Mims.

[00:17:27] Speaker 00:
I'm here on behalf of AKM Mobilize.

[00:17:30] Speaker 00:
And you've covered a lot of the issues that I wanted to discuss.

[00:17:33] Speaker 00:
But let me try to focus in on where you were analyzing it.

[00:17:37] Speaker 04:
But if we agree with you that the claims deal with abstract ideas, what about the second issue, something more?

[00:17:47] Speaker 00:
There is not something more in this.

[00:17:49] Speaker 04:
What is something more?

[00:17:51] Speaker 00:
To me, something more is an unconven... If you're going to use prior concepts and systems like computers or sensors, you have to have something that is a non-conventional combination.

[00:18:05] Speaker 04:
In other words, can it be more ideas, more data handling, if it's unconventional?

[00:18:12] Speaker 00:
Well, in these claims, what I view as a something more test

[00:18:16] Speaker 00:
you would look at the sensors and their computer to see if they did something in the computer arts, which we don't believe they did, because it'll work on a general purpose processor.

[00:18:25] Speaker 00:
And we don't think they had anything on the sensors that he argues, because they're conventional sensors.

[00:18:30] Speaker 00:
But they don't claim sensors.

[00:18:32] Speaker 00:
They claim data, which goes back to step one.

[00:18:36] Speaker 04:
In other words, does more data handling constitute more if it's very clever?

[00:18:44] Speaker 00:
Well, I don't think doing more data handling at higher speed and more accurate doesn't count.

[00:18:50] Speaker 00:
We know that from some of the cases.

[00:18:52] Speaker 00:
I think you would have to do something that reflected on the hardware of the computer in some sense, or this database claim that you talked about earlier.

[00:19:02] Speaker 00:
I think it's much harder to show with a computer program given the court's precedent and the US Supreme Court's precedent.

[00:19:10] Speaker 00:
to get over that bird hurdle.

[00:19:12] Speaker 00:
And we talked about Diamond v. Deere.

[00:19:14] Speaker 00:
Diamond v. Deere.

[00:19:15] Speaker 02:
Supposing the program did what the person skilled in the art would do to react to those 16 data points and control the field and its operation based on that data.

[00:19:35] Speaker 02:
Would that be the something more?

[00:19:38] Speaker 00:
I don't believe so.

[00:19:38] Speaker 00:
Well, I'd have to read the claims, of course, to know, because the claims are the start.

[00:19:42] Speaker 00:
And the claims I think you're referring to, the only claims that they have.

[00:19:46] Speaker 00:
No, they don't do that.

[00:19:47] Speaker 00:
They don't do that at all.

[00:19:48] Speaker 00:
But supposing a patent did do that.

[00:19:52] Speaker 00:
Then you start getting close to diamond V deer.

[00:19:54] Speaker 00:
Diamond V deer is so different.

[00:19:55] Speaker 00:
That's why I asked the question.

[00:19:56] Speaker 00:
You have thermocouples on the inside of the press.

[00:19:59] Speaker 00:
You actually have a methicline changing rubber.

[00:20:02] Speaker 00:
And you go out to the field.

[00:20:05] Speaker 00:
and open a valve or run a solenoid out there and open the drill, I mean, the press.

[00:20:11] Speaker 00:
And to me, if at the end of their claim they said, and then we went out and we shut the blowout preventer, or something like that, that would be like diamond v. deer.

[00:20:19] Speaker 00:
They don't claim that.

[00:20:20] Speaker 00:
And they don't disclose that.

[00:20:22] Speaker 00:
Their point here is to... I'm just speculating on the lines of Judge Larry's question of what would be more.

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

[00:20:30] Speaker 00:
I think reading the cases that have come out, most of them have dealt primarily with software nuances.

[00:20:39] Speaker 00:
And to me, those really aren't applicable here, because there's really nothing unusual in their flowcharts or programming.

[00:20:45] Speaker 00:
I think the question earlier was, are these well-states in the prior, one of you asked.

[00:20:53] Speaker 00:
And counsel said they would probably be known.

[00:20:55] Speaker 00:
And that's true.

[00:20:56] Speaker 00:
I mean, drilling engineers have gone out to drilling rigs and looked at the instruments and reported back on the phone back in the 70s and 80s, the rig is running today and it's running at this flow rate, or it's not running, or we're drilling today and we're doing this.

[00:21:10] Speaker 00:
And they're doing that based on instruments.

[00:21:12] Speaker 00:
And they are characterizing or categorizing those sensors into you could call a well state.

[00:21:18] Speaker 00:
And people systematize the idea of well state for some time.

[00:21:22] Speaker 02:
The drilling engineers in the 1920s and 30s were saying,

[00:21:26] Speaker 00:
I hear something funny down there, which is a sensor.

[00:21:30] Speaker 00:
Right.

[00:21:30] Speaker 00:
Once you had measurement, once you have measurement, then you can start to describe what's in the field.

[00:21:35] Speaker 00:
People have been able to measure temperature and pressure for a pretty long time.

[00:21:39] Speaker 00:
But these claims are all about data.

[00:21:42] Speaker 00:
I mean, my view is it's storing data, it's comparing data, and then it's going to a lookup table and picking, based on logic, what state you're in.

[00:21:56] Speaker 00:
From our briefs, we cover a lot of the case law.

[00:22:01] Speaker 00:
And the abstract idea concept to me is fairly well explained.

[00:22:07] Speaker 00:
I don't think counsel ever explained an answer to Plan Bingo below or on appeal, which to me is a very analogous case because they're very high level claims that one can do with a pencil and paper.

[00:22:18] Speaker 00:
And in our hypothetical, if you look at a plurality of states, if my states are drilling and not drilling,

[00:22:25] Speaker 00:
I can look at the flow rate of the mud and the turn into the drill.

[00:22:28] Speaker 00:
And I can say it's drilling or not drilling.

[00:22:30] Speaker 00:
Whether it's accurate or not does not matter.

[00:22:32] Speaker 00:
The claims do not claim accuracy.

[00:22:34] Speaker 00:
They don't claim real time.

[00:22:35] Speaker 00:
They don't claim depth of the well.

[00:22:38] Speaker 00:
Many of the arguments in their briefs are unclaimed features from the embodiments.

[00:22:43] Speaker 00:
And I just don't think that's proper analysis in a 101 case.

[00:22:47] Speaker 00:
There's much about metrics.

[00:22:48] Speaker 04:
Are you saying the subject matter in the patent that could have been claimed that would have met

[00:22:54] Speaker 00:
I don't think there's a disclosure to meet it.

[00:22:57] Speaker 00:
I don't see anything that ever goes out and impacts or changes the drilling operations.

[00:23:04] Speaker 00:
It monitors all this data and tells you how people drill.

[00:23:07] Speaker 00:
Those flow charts about how people pick states, I would think most petroleum engineers could gin up those flow charts fairly easily based on their know-how of being in the oil and gas industry.

[00:23:18] Speaker 00:
So it's not like they came up with a new algorithm other than

[00:23:21] Speaker 00:
It's their particular categorization of that data, which they apply to interpret the measurements.

[00:23:29] Speaker 00:
While we're on this measurement issue, I think one important case that you could consider that's discussed in Mayo is Parker v. Fluke, which had temperatures coming in and pressures and flows coming in from a chemical catalytic reaction.

[00:23:47] Speaker 00:
So you had real measurements.

[00:23:49] Speaker 00:
And then you did a calculation for these alarm limits, and then you modified them.

[00:23:54] Speaker 00:
That claim was much closer to tied to actual measurements, whereas here we have systems.

[00:24:01] Speaker 00:
And the data could come from any system.

[00:24:02] Speaker 00:
If you read the spec, it's very broad about the sensors and the systems.

[00:24:07] Speaker 00:
It doesn't necessarily have to be in real time.

[00:24:08] Speaker 00:
You could collect all this data and run their algorithm or program idea back in the office if you wanted to calculate the well states in hindsight.

[00:24:26] Speaker 00:
On the issue of is there something more, I think the important thing is looking at the claims.

[00:24:32] Speaker 00:
There really isn't.

[00:24:34] Speaker 00:
We have a conventional computer processor in the spec.

[00:24:37] Speaker 00:
That's what they say can do it.

[00:24:39] Speaker 00:
And if you can do this on a general purpose processor, it's really not a limitation.

[00:24:43] Speaker 00:
I think the case law is pretty clear on that.

[00:24:46] Speaker 00:
I think there's the ordered combination analysis that Alice does, which show here there's nothing unconventional happening when you

[00:24:55] Speaker 00:
the program, the algorithm, or the abstract idea.

[00:24:59] Speaker 00:
There's really nothing more there than sensors in an ordinary computer.

[00:25:04] Speaker 00:
And the machine or transformation test, below they argued that it was tied to a system.

[00:25:10] Speaker 00:
That was the thrust of their argument.

[00:25:12] Speaker 00:
In their brief, they argued that it would transform the data.

[00:25:14] Speaker 00:
And in their reply brief, they argued that the machine side of it.

[00:25:20] Speaker 00:
I don't think they needed on either test, because I don't think

[00:25:23] Speaker 00:
Reading data and using a lookup table with pre-existing data is transforming data.

[00:25:28] Speaker 00:
I don't think that's what the transformation test is meant to cover.

[00:25:31] Speaker 00:
It's more of a chemist, use the rubber example.

[00:25:33] Speaker 00:
That's a good example of something changing and being transformed.

[00:25:37] Speaker 00:
And I don't think it's tied to an apparatus because the sensors are not in the claims.

[00:25:40] Speaker 00:
The data is in the claims.

[00:25:44] Speaker 00:
I don't, and of course narrowing the claims to a particular field doesn't get you there.

[00:25:49] Speaker 00:
That's very well established in the 1970s cases.

[00:25:53] Speaker 00:
And the preemption that they've raised is not an issue.

[00:25:57] Speaker 00:
Ariosa, I think, finally said the absence of complete preemption does not demonstrate patent eligibility.

[00:26:04] Speaker 00:
So it's not really, it's a factor, it's a touchstone, but it doesn't seem to be controlling at all.

[00:26:11] Speaker 00:
And I think the claims we talked about, the last series of claims which are sort of vague, go out and control or do something, are really what I think they call

[00:26:23] Speaker 00:
insignificant post-solution activity back in the 1970s.

[00:26:26] Speaker 00:
It's just inconsequential.

[00:26:28] Speaker 00:
It's not really the something more you're looking for in a case like this.

[00:26:34] Speaker 00:
I think I've covered most of the points I wanted to make in light of the fact that unless the court has questions on the abstract idea side of the test, I'm happy to entertain questions on that.

[00:26:47] Speaker 04:
Currently not.

[00:26:47] Speaker 04:
Thank you, Mr. Mims.

[00:26:48] Speaker 04:
Mr. Whitaker has three minutes of rebuttal time.

[00:27:00] Speaker 03:
Thank you, honor.

[00:27:04] Speaker 03:
This really is a case of first impression in the post-Alice world, because none of the cases have involved a specific technical improvement to an existing technological process.

[00:27:17] Speaker 03:
If we look at what happens in the claims of this patent, we are taking data that's recited

[00:27:28] Speaker 03:
specific types of data, mechanical and hydraulic, and there's nothing in the record to suggest that that is conventional or well-known.

[00:27:38] Speaker 03:
There's nothing in the record that suggests that you could draw up the flow charge.

[00:27:43] Speaker 02:
You told me it was.

[00:27:45] Speaker 02:
Sir?

[00:27:46] Speaker 02:
You told me those 16 data points were well-known.

[00:27:50] Speaker 03:
Ah, but accurately getting to them is not.

[00:27:55] Speaker 03:
If I said that, then I

[00:27:58] Speaker 03:
I won't say I misspoke.

[00:27:59] Speaker 03:
The idea that there are 16 well states is known.

[00:28:03] Speaker 03:
The idea of getting to them, as we can see in figure 5A and 5B at pages A38 and A39, that is invented.

[00:28:14] Speaker 03:
That is what is the algorithm.

[00:28:17] Speaker 02:
So the patent covers the sensors?

[00:28:21] Speaker 02:
It does.

[00:28:22] Speaker 03:
They're not sensors?

[00:28:25] Speaker ?:
No.

[00:28:26] Speaker 03:
Chooses which sensors we're using mechanical and hydraulic sensors.

[00:28:30] Speaker 03:
We're not using acoustic sensors.

[00:28:32] Speaker 03:
We're not having Joe Those are existing sensors They are but we're harnessing them in a way that they haven't been used before right and we're validating There's nothing in the record that says validated by testing against the limit there if we talked in the brief about

[00:28:49] Speaker 03:
The patent itself cites 17 different ways of validating data.

[00:28:53] Speaker 03:
And we say, we claim this way.

[00:28:55] Speaker 03:
And the equivalence, of course.

[00:28:56] Speaker 03:
But we claim this way.

[00:28:58] Speaker 03:
And this gets us to a result.

[00:29:00] Speaker 03:
Tom the driller, the fictitious driller, he got up there and he supposedly looked.

[00:29:06] Speaker 03:
This is Mobilize's fictitious Tom driller.

[00:29:09] Speaker 03:
And he said, I can tell you what the well estate is.

[00:29:11] Speaker 03:
But he was only right 25% of the time.

[00:29:15] Speaker 03:
This is a problem.

[00:29:17] Speaker 03:
And the way that these claims get to that solution by storing the well states, by taking particular types of data from particular systems, they then validate the data in a particular way.

[00:29:30] Speaker 03:
And then they put one well state.

[00:29:32] Speaker 03:
If you look at A817, the Hutchinson reference, it teaches

[00:29:37] Speaker 03:
Well, I'll tell you, it's either going to be washing or tripping, or it's going to be washing or circulating, or tripping or reaming.

[00:29:46] Speaker 03:
It doesn't tell you one well state.

[00:29:48] Speaker 03:
One well state.

[00:29:49] Speaker 03:
And claims call out one well state.

[00:29:51] Speaker 03:
Many of the prior art systems, and I know I'm straying into the 102 and 103 area here, but they weren't able to select one well state.

[00:29:59] Speaker 03:
So what we've got is a specific technological

[00:30:04] Speaker 03:
solution to a specific technological problem that is far closer to diamond v. deer than it is to fluke.

[00:30:15] Speaker 03:
And if I might have 15 seconds to talk about fluke, or is that counting me over?

[00:30:20] Speaker 04:
I'm not sure.

[00:30:21] Speaker 04:
That's a red light.

[00:30:22] Speaker 03:
I'm sorry, sir.

[00:30:23] Speaker 04:
We'll give you one sentence on fluke.

[00:30:25] Speaker 03:
All right.

[00:30:26] Speaker 03:
Fluke particularly said that

[00:30:30] Speaker 03:
In the preamble, it was a catalytic chemical process, and then it recited a formula.

[00:30:37] Speaker 03:
There was no structure, no machine.

[00:30:39] Speaker 02:
Oh, there was a period at the end of the formula.

[00:30:42] Speaker 02:
I'm sorry, sir?

[00:30:44] Speaker 02:
You stopped.

[00:30:45] Speaker 02:
You were given one sentence.

[00:30:48] Speaker 03:
I tried not to put a period in.

[00:30:51] Speaker 04:
Well, we drill down hard on this case, and we will consider it submitted.

[00:30:57] Speaker 04:
Thank you very much.

[00:30:59] Speaker 03:
Thank you, Your Honor.

[00:31:11] Speaker 04:
Now, of course, the jump is one-one, two-way one.