[00:00:00] Speaker 04: 015-5150, Bales versus United States. [00:00:07] Speaker 04: Ms. [00:00:07] Speaker 04: Addy, you may proceed. [00:00:09] Speaker 00: Good morning, Your Honors. [00:00:10] Speaker 00: This is a case in which the CFC erred in its application of the ALICE test. [00:00:17] Speaker 00: First, the court dissected the claims into their individual elements, ignored some elements, and concluded that the claims were directed... Ms. [00:00:27] Speaker 05: Addy, in the blue brief at 6466, [00:00:30] Speaker 05: You argue that the Court of Federal Claims erred by only analyzing independent claims 1 and 22 and failing to separately consider the dependent claims. [00:00:45] Speaker 05: However, before the CFC, you barely discussed the dependent claims. [00:00:53] Speaker 05: It's at JA 785-867. [00:00:58] Speaker 05: And you don't object to Elbit's characterization of claim 22 as representative. [00:01:05] Speaker 05: That's a J818. [00:01:08] Speaker 05: Then you sent us that nice IPR in which the PTAB treated independent claims 1 and 22 as illustrative. [00:01:18] Speaker 05: Why shouldn't we treat 1 and 22 as representative? [00:01:21] Speaker 05: Let's cut right to the core. [00:01:25] Speaker 00: Thank you, Your Honor. [00:01:26] Speaker 00: First, there's no representative claim determination. [00:01:31] Speaker 00: The parties discussed the separate dependent claims that are at issue in the CFC proceeding in their briefs in their 101 motions. [00:01:44] Speaker 00: There was no request that the court rule that claim one was representative. [00:01:51] Speaker 00: There was a statement made, as you said, at the oral hearing. [00:01:55] Speaker 00: But the party certainly never agreed that it was representative, and the court did not so rule. [00:02:00] Speaker 00: The fact that defendants did not separately address the dependent claims doesn't relieve them of their burden to prove that those claims were not patent eligible. [00:02:14] Speaker 02: Do you have a site for us in the appendix where you argued the claim separately? [00:02:20] Speaker 00: Yes, Your Honor. [00:02:21] Speaker 00: First of all, the defendant's brief on 101 is at A247 of the record. [00:02:28] Speaker 00: TDI's brief on 101, where we discuss the dependent claims, is at A416, again at 441. [00:02:36] Speaker 00: And in the reply brief, the defendants again go through the asserted dependent claims at 641 through 42 in their brief. [00:02:49] Speaker 00: TDI again addresses it in [00:02:51] Speaker 00: its supplemental brief on the affinity decision. [00:02:56] Speaker 00: Your Honor, let's take a look at claim three, for example. [00:03:07] Speaker 00: And that's at A27, column 11 at the bottom. [00:03:11] Speaker 00: A23 includes [00:03:20] Speaker 05: The entire argument on 641, 642, as far as I can tell, is one paragraph. [00:03:29] Speaker 00: That's the reply brief? [00:03:30] Speaker 05: Yes. [00:03:32] Speaker 04: 441. [00:03:32] Speaker 04: Go to 441. [00:03:37] Speaker 05: I thought there was a reference in the reply brief to 641. [00:03:41] Speaker 00: I did refer. [00:03:43] Speaker 00: Let me check. [00:03:43] Speaker 00: But you can check the opening brief, defendant's opening brief, at 247. [00:03:51] Speaker 05: 247. [00:03:52] Speaker 05: I'm looking at what Judge Moore referred to. [00:03:59] Speaker 04: Well, 441 is where your client argued the dependent claims, right? [00:04:02] Speaker 04: So isn't that what you want to direct Judge Wallach to, demonstrating that you preserved arguments related to the dependent claim? [00:04:09] Speaker 04: Absolutely. [00:04:10] Speaker 00: And that's at 441. [00:04:11] Speaker 00: But I also wanted to make sure that the court understood that defendants argued separately the dependent claims as well. [00:04:17] Speaker 00: In addition, Your Honors, [00:04:20] Speaker 00: Even if the dependent claims were not separately argued, which we do not agree there's no ruling on, the independent claims satisfy 101 on their own because step one of the Alice test requires that you look at the individual limitations and you look at them in combination. [00:04:40] Speaker 00: The court failed to consider them in combination. [00:04:43] Speaker 00: Secondly, the court had to look at inventive concept, and here, [00:04:50] Speaker 00: The inventive concept is tracking an object without reference to ground. [00:04:54] Speaker 00: That solves a specific technological solute problem that was in the motion tracking art, and it solved challenges in the motion tracking art because prior systems that tracked motion with respect to ground had latency problems, they had inaccurate results, and they simply didn't function properly. [00:05:18] Speaker 00: No matter how you look at it, whether you look at claim one, which we are not asserting, but it survives the Alice test, or you focus on claim three. [00:05:29] Speaker 05: Some of your dependent claims identify different kinds of sensors. [00:05:36] Speaker 05: What specific inventive concept do they add? [00:05:41] Speaker 00: I think specifically, Your Honor, if you look at dependent claim three, [00:05:45] Speaker 00: and the further dependent claims depend from claim three, so they include these limitations as well. [00:05:50] Speaker 00: Dependent claim three adds from the set of limitations found in claims one and two, it adds an angular inertial sensor that detects orientation relative to the moving reference frame, and it does so by [00:06:13] Speaker 00: using the relative angular rate signal. [00:06:16] Speaker 00: Again, that's at column 11 at the bottom of the page. [00:06:20] Speaker 00: The relative angular rate signal and the use of the ability to detect orientation without reference to ground, without reference to ground is the inventive concept here, Your Honor. [00:06:36] Speaker 02: Do you think DRS decided under step one or step two of the ALICE test? [00:06:46] Speaker 00: I think Dear talks about both steps. [00:06:49] Speaker 00: Specifically, Dear says, it is improper to dissect the claims into old and new elements and then ignore the presence of elements in the analysis. [00:07:00] Speaker 00: And that's what the Court of Federal Claims did specifically here. [00:07:06] Speaker 00: And that's step one. [00:07:07] Speaker 00: You have to take a look at what's claimed and consider them. [00:07:12] Speaker 00: It also addresses the inventive concept [00:07:15] Speaker 04: But one way to think about your argument be that it's similar to Judge Prost's recent rapid litigation decision where she said under step one, you have to look at what the claims are directed to, not just the fact that they may contain an abstract idea like a formula, but you have to really look at what the claim itself is directed to. [00:07:34] Speaker 00: That's absolutely right. [00:07:36] Speaker 00: And here the claims are directed to tracking an object without reference to ground. [00:07:42] Speaker 00: And they include these specific limitations. [00:07:50] Speaker 00: In addition, Judge Prost said in the rapid litigation management that you pass the inventive concept, step two, by showing that there is an improvement on existing technological processes. [00:08:04] Speaker 00: We have that here as well. [00:08:06] Speaker 00: But Your Honors, that can't raise to the level of novelty. [00:08:11] Speaker 00: it's sufficient to make sure that the claims themselves do not cover such an unpatentable abstract idea. [00:08:18] Speaker 00: Looking again at Alice's step two, the specification shows, it describes the invention, and it shows the advantages of the invention, and those are things that are appropriate to consider in the inventive [00:08:40] Speaker 00: as in part of the inventive concept. [00:08:43] Speaker 00: The court aired here because the Court of Federal Claims failed to consider the specification at all. [00:08:49] Speaker 00: It said that in A6 of the decision. [00:08:55] Speaker 00: But recent case law has confirmed that the specification is important for determining the technological advancement, for determining the problem solved in the prior art, and for putting context on the claims. [00:09:11] Speaker 02: Is that for claim interpretation, or should you be reading the specification into the claims when you're assessing eligibility? [00:09:19] Speaker 00: Of course you don't read the specification into the claims, but it provides context to the claims, and it also applies for claim interpretation, but there was no interpretation done here. [00:09:32] Speaker 00: It's a motion to dismiss on the pleadings, Your Honor, and so whatever considerations there may have been [00:09:39] Speaker 00: should be resolved in favor of the non-movement. [00:09:47] Speaker 00: One thing I wanted to address is the CFC's conclusion that equations are claimed or laws of nature are claimed. [00:09:57] Speaker 00: I'm not sure what equations or laws of nature the CFC is saying they say navigation equations. [00:10:03] Speaker 00: However, there's no general navigation equation at issue here. [00:10:08] Speaker 02: Is there an equation in your dependent claims? [00:10:10] Speaker 02: I know there's not in the independent claims. [00:10:11] Speaker 02: Right. [00:10:12] Speaker 02: Isn't there some formula claimed in dependent claims? [00:10:16] Speaker 00: No, Your Honor. [00:10:16] Speaker 00: There's no formula claimed in the dependent claims. [00:10:19] Speaker 00: Well, I would say formula, equation, the dependent claims contain a process. [00:10:25] Speaker 00: And a process is something that shows the steps for doing something, whereas an equation is a relationship between the constants and variables, and it may aid in performing the process. [00:10:37] Speaker 00: but it's not the process itself. [00:10:38] Speaker 00: And the equations that are at issue in this case are equations 10, 11, and 12, which are at 825. [00:10:46] Speaker 02: But there are steps of formula in there. [00:10:49] Speaker 02: For example, claim 34 comprising double integrating a relative linear acceleration signal computed from the linear accelerometer signals measured by the first and second inertial sensors. [00:10:59] Speaker 00: That's true. [00:11:00] Speaker 00: There are steps. [00:11:01] Speaker 00: But it doesn't provide the equations as set forth in 10 through 12. [00:11:07] Speaker 00: However, even if it did, because of the specific structure described in the claims and the technological advancement which the PTAB is held exists, the claims define over the prior art. [00:11:20] Speaker 00: And the claims contain patent-eligible subject matter. [00:11:28] Speaker 00: The inventors did a simulation test to these equations at 10 through 12. [00:11:34] Speaker 00: The equations are a model. [00:11:36] Speaker 00: They're specific to the structure and the invention claimed. [00:11:42] Speaker 00: For example, the second, third, and fourth terms in these equations at column 8, they're new. [00:11:51] Speaker 00: They're not before presented. [00:11:53] Speaker 00: And you can see that at 19 through 21 of column 8. [00:11:58] Speaker 00: So in order to determine whether their specific model for tracking an object without reference to ground worked, [00:12:06] Speaker 00: they developed a simulation. [00:12:08] Speaker 00: And that simulation is discussed in the specification. [00:12:11] Speaker 00: It starts at column nine. [00:12:13] Speaker 00: The simulation was done because they were worried about errors, bias errors, and they didn't know how bad that would be. [00:12:21] Speaker 00: If the claims contained a law of nature or if these equations were general navigation equations as the CFC held, there wouldn't have been a problem with error because [00:12:35] Speaker 00: General laws of nature are applicable throughout. [00:12:39] Speaker 00: So it shows that these models developed by the inventors are not general. [00:12:42] Speaker 04: You're in for rebuttal time, Ms. [00:12:43] Speaker 04: Eddy. [00:12:43] Speaker 04: Do you intend to speak some? [00:12:45] Speaker 00: Thank you, Your Honor. [00:12:46] Speaker 00: I do, and I appreciate it. [00:12:48] Speaker 04: Is Mr. Zager? [00:12:53] Speaker 04: No. [00:12:53] Speaker 01: Actually, this is Kurt Colleen on behalf of Elbit. [00:12:55] Speaker 01: I was going to start. [00:12:56] Speaker 04: That's all right. [00:12:58] Speaker 01: Thank you. [00:12:58] Speaker 01: Good morning, Your Honors. [00:12:59] Speaker 01: I'm here from Covington, Burlingone, on behalf of Elbit. [00:13:03] Speaker 01: I would like to start with one of the points that came up in the presentation we just heard from Thales about representative claims. [00:13:10] Speaker 01: Judge Wallach, as you rightly pointed out, during the hearing before Judge Wheeler, two floors down a year and a half ago, I did indicate fairly specifically that we treated Claim 22, which is the independent method claim, as a representative claim. [00:13:25] Speaker 01: There was no disagreement from counsel about that. [00:13:27] Speaker 01: They even filed it. [00:13:28] Speaker 02: What about the fact that they're briefed fairly clearly [00:13:31] Speaker 02: point out and argue separately various dependent claims? [00:13:35] Speaker 01: Their briefs do mention dependent claims. [00:13:36] Speaker 01: Our briefs do as well. [00:13:38] Speaker 01: And certainly, I'm prepared to talk about the dependent claims. [00:13:40] Speaker 01: But at least insofar as Judge Wheeler's ruling is concerned and his judgment that the claims are invalid under Section 101, I think it's fair to say, it's a fair characterization of the briefing before the Court of Federal Claims that the focused attention by both sides was on the independent claims. [00:13:57] Speaker 01: To the extent that they had tried to argue that additional elements [00:14:01] Speaker 01: at an inventive concept, for example, and they did little more than list what the independent claims were in the briefing. [00:14:09] Speaker 01: Obviously Judge Wheeler was not persuaded by that because his order granted our motion in total, which related to both the independent claims and the dependent claims. [00:14:18] Speaker 01: But I'll certainly speak to the dependent claims here. [00:14:20] Speaker 04: Do you think that I can fairly discern from his motion whether he treated [00:14:26] Speaker 04: the representative claims as governing the dependent claims, or do you think I can understand from his order that he separately considered but did not discuss the dependent claims? [00:14:38] Speaker 04: What is your approach? [00:14:39] Speaker 04: What is it you think he did? [00:14:40] Speaker 01: I think you can you can determine that he did both of those things. [00:14:44] Speaker 04: I think he certainly... Do you think it would be a really good idea for courts to invalidate entire patents and say, you know, by pointing out the faults in a representative claim and never ever discussing? [00:14:56] Speaker 04: The dependent claim says individual property rights. [00:14:59] Speaker 04: Do you think that would be a good rule of law? [00:15:02] Speaker 01: That would not be a good rule of law, however. [00:15:04] Speaker 04: Is that what you're asking for? [00:15:06] Speaker 01: That is not what we're asking for. [00:15:07] Speaker 04: Did he separately discuss the dependent claims? [00:15:09] Speaker 01: He does not separately discuss the dependent claims in his order. [00:15:13] Speaker 01: As counsel pointed out, the dependent claims were referenced in briefing. [00:15:16] Speaker 01: And in the hearing, we argued about them. [00:15:18] Speaker 01: We argued about them. [00:15:19] Speaker 01: The defendants did. [00:15:20] Speaker 01: Tallis said nothing about the dependent claims during the entirety of the oral argument. [00:15:25] Speaker 04: Does failure to argue something that you argued in your brief, in an oral hearing, waive all those arguments that were otherwise made in your brief? [00:15:35] Speaker 04: Is that the rule of law that you're articulating now? [00:15:37] Speaker 01: No, no. [00:15:38] Speaker 04: So then why, if they preserved these arguments as to separate dependent claims on page 441 and 442 of their brief, where they didn't just list the dependent claims, but rather pointed to the specific elements and grouped them as to which claim has them, and then explain that these physical limitations [00:15:54] Speaker 04: further defined the censors of claims 1 and 22, and they went into detail, why in the world are those properly have, why should I treat those as having properly been resolved by virtue of his resolution of claims 1 and 22? [00:16:09] Speaker 01: Understood. [00:16:10] Speaker 01: And even if the court were to determine that Judge Wheeler's decision did not extend to them, and we believe it did because it did grant the motion, and as Your Honor points out, [00:16:20] Speaker 01: there were references to the dependent claims in the briefs that were submitted. [00:16:23] Speaker 04: It granted the motion, but don't district courts, even the Court of Federal Claims, or it's not a district court, but the same rules apply to them, aren't they required to give us a decision that is capable of being reviewed on appeal? [00:16:36] Speaker 01: Yes, they are. [00:16:37] Speaker 01: I agree with that. [00:16:38] Speaker 01: However, I would say that there is an invitation in the reply brief from Tallis that this court at most should affirm the decision on the independent claims and the remand as to the dependent claims [00:16:49] Speaker 01: Section 101 patent eligibility is an issue of law for the court. [00:16:53] Speaker 01: That would strike me as a fairly inefficient way to approach dealing with the claims here. [00:16:58] Speaker 01: Certainly this court, which has now had a full round of briefing on the 101 issues and can take up these issues as it does de novo, is in a position to make those determinations as well. [00:17:09] Speaker 01: And I think there are a couple of points that are critical here for purposes of the court's evaluation of the independent claims and the dependent claims. [00:17:18] Speaker 01: First of all, [00:17:19] Speaker 01: focusing on the role of the censors, which I think everyone would agree is indispensable here. [00:17:27] Speaker 01: Censors are generic, they're conventional, they're used for their well-understood purpose. [00:17:32] Speaker 01: Tallis actually conceded this in the Court of Federal Claims proceedings. [00:17:36] Speaker 01: We pointed this out in our briefing that at the oral argument, and this is in the appendix 864 through 865, [00:17:47] Speaker 01: We had made the argument that the sensors were generic, conventional, used for their well-understood purpose. [00:17:53] Speaker 01: And council went back at the very end of the hearing and had the last word, and referred to our arguments about the sensors being conventional as a red herring, and went on to concede that the inertial sensors are conventional, and our patent says that. [00:18:07] Speaker 01: We never said anything else. [00:18:09] Speaker 02: So what you're just saying is that inertial sensors generally are known. [00:18:14] Speaker 01: They're generally known. [00:18:15] Speaker 02: Using them in combination. [00:18:17] Speaker 02: I mean, I understand. [00:18:18] Speaker 02: I just want to make sure I understand your argument. [00:18:20] Speaker 02: You're just saying that inertial sensors are known. [00:18:23] Speaker 01: The inertial sensors are known, and even in the context of this invention, they are used for their well-understood purpose, which is to generate information about the forces on the objects to which they are fixed. [00:18:34] Speaker 01: That is what inertial sensors do, whether it's orientation, whether it's acceleration with linear accelerometers, and there's a laundry list of the different kinds of inertial sensors that can be used for its purpose. [00:18:44] Speaker 01: So Thales has conceded that the sensors themselves in this invention as claimed are being used for their conventional purpose. [00:18:51] Speaker 04: In addition, the- What's the abstract idea? [00:18:55] Speaker 04: I mean, every single circuit that is designed, you know, the capacitor is a conventional object, the resistor is a conventional object, you know, the diode is a conventional object, but they're put together in a new combination to effectuate a new result. [00:19:11] Speaker 04: I don't think that would [00:19:12] Speaker 04: fall under even the Supreme Court's version of Halas. [00:19:15] Speaker 04: So where is the abstract idea? [00:19:18] Speaker 04: Because absent the abstract idea and the claim being directed to an abstract idea, the fact that you can point out that various elements of the claim happen to be conventional when they're put together in a novel, non-obvious combination doesn't suddenly make everything ineligible. [00:19:33] Speaker 01: Right. [00:19:34] Speaker 01: I don't disagree with that. [00:19:35] Speaker 01: The ineligible subject matter here are the navigation equations, which we contend are a law of nature. [00:19:42] Speaker 01: They are a mathematical expression of the relationship between two moving objects. [00:19:46] Speaker 01: And the claims are directed to that because if you look at the claims, the inertial sensors that are used to generate data for the inputs for those equations, they are also arranged in the same way that they were arranged in the prior art. [00:20:00] Speaker 01: Council talked about how this invention is fundamentally directed to an alleged improvement where you can track the motion of two moving objects without having to do it relative to the grant [00:20:11] Speaker 02: Let me talk about your sensor point again for a second. [00:20:14] Speaker 02: Now in deer, the sensor there was a thermocouple, and it was used in its ordinary use. [00:20:19] Speaker 02: It was in the prior art for measuring temperature. [00:20:22] Speaker 02: So how is your point any different than deer? [00:20:25] Speaker 01: Well, it was a new thermocoupler, and it was used in a different way in the sense that it was included within the whole... Well, is the sensor here used in a different way in that what it's determining, the way it's arranged, is determining... It is not. [00:20:35] Speaker 01: It is not used in a different way, and it is not arranged in a different way. [00:20:38] Speaker 01: And in fact, [00:20:39] Speaker 01: In Tallis's brief, in the principal brief on page 13, they describe the prior art systems, the tracking systems that involve relative tracking but having to go through the ground, where you tracked an object relative to the ground and then a moving platform relative to the ground and related the two. [00:20:56] Speaker 01: That is the problem that they purport to overcome with this invention and allow you to track two moving objects relative to each other. [00:21:02] Speaker 01: And what they say about this, and this is in page 13 of the principal brief, [00:21:07] Speaker 01: is that prior to Foxlin's invention claimed in the 159 pat, those of skill in the art believe that when tracking an object, such as a person's head, relative to a moving platform, such as an aircraft, a locally level ground-based navigation frame, end frame, should be used such that the moving platform P and the user's head H could be tracked relative to the ground N. In this way, the user's head pose, which is shorthand for position and orientation, could be calculated relative to the moving platform by transforming the estimates from one frame to another. [00:21:37] Speaker 01: And they cite the portion in column six, the specification that talks about this prior art approach. [00:21:42] Speaker 01: In simpler terms, the pose of the vehicle will be tracked with respect to the ground. [00:21:46] Speaker 01: The pose of the user's head would be tracked with respect to the ground. [00:21:49] Speaker 01: And the pose difference could then be computed. [00:21:52] Speaker 01: That is their description of the prior art system, where you have to do relative tracking through the ground. [00:21:58] Speaker 01: But in this instance, the inertial trackers are on the tracked object and the moving platform, which tells us that the only difference between this system [00:22:08] Speaker 01: You're tracking it relative to the ground, but you still have inertial trackers. [00:22:11] Speaker 02: But it's different. [00:22:13] Speaker 02: I don't understand your point, because you're saying the sensors are being used in a conventional way. [00:22:20] Speaker 02: But here, you're telling me it's different in that it's not in the claimed invention you can determine the reference moving object relative to another moving object, as opposed to determining the moving objects relative to the ground. [00:22:34] Speaker 01: The uses of the sensors, both in that prior art context [00:22:37] Speaker 01: where it's referencing, you know, determining relative to the ground. [00:22:40] Speaker 01: And in the invention is this. [00:22:41] Speaker 02: Wait, this feels like a 102 analysis for 101. [00:22:44] Speaker 02: That seems really weird. [00:22:45] Speaker 01: But the inertial sensors themselves are in both circumstances on both the tracked object and the moving platform. [00:22:52] Speaker 02: Why don't you talk more? [00:22:53] Speaker 02: I understand what you're saying, but I think your better bet is to explain why it is that this claim is directed to an ineligible subject matter, like a mathematical formula. [00:23:01] Speaker 02: Or why the combination as a whole doesn't have a technological advancement? [00:23:06] Speaker 01: Because it's... Because both the sensors used for that conventional purpose and the location of the sensors is the same in the prior art system as it is in their alleged invention. [00:23:16] Speaker 01: And the only difference, the only difference is they have a new equation such that the inputs from those sensors are run through a new equation to allow you to bypass having to calculate relative to the ground. [00:23:27] Speaker 01: Where is the equation in claim one? [00:23:30] Speaker 01: The equation is not specifically recited in claim one. [00:23:33] Speaker 01: It is not specifically recited in any of the claims, although this court has held previously that the failure to specifically recite an algorithm in a claim is not significant. [00:23:43] Speaker 01: The claims can still be directed to laws of nature and algorithms. [00:23:48] Speaker 02: It is- What cases are you thinking of with that? [00:23:54] Speaker 01: I believe actually Yala's case said that. [00:23:55] Speaker 01: In fact, I think the petitioner, I think there was a comment to the effect that [00:24:00] Speaker 01: The court didn't accord great significance to that, much less the talismatic significance that was placed on it by the patent holder. [00:24:08] Speaker 01: The point here is that the only difference that allows for this relative motion tracking without going to the ground is the new equation. [00:24:16] Speaker 01: And what that fundamentally tells us is that the claims are directed to those navigation equations. [00:24:21] Speaker 04: Because that is the difference. [00:24:22] Speaker 04: And Mr. Thalia, you're well over your time. [00:24:23] Speaker 04: So I think I should hear from, since there are two different folks at your table, [00:24:29] Speaker 04: Make sure he gets his four minutes. [00:24:31] Speaker 03: Thank you. [00:24:32] Speaker 04: Is it Zager? [00:24:33] Speaker 04: Zager? [00:24:33] Speaker 04: How do I say your name? [00:24:35] Speaker 03: Zager, Your Honor. [00:24:35] Speaker 03: Thank you. [00:24:36] Speaker 03: Your Honor, the government concurs with Elbit that the decision of the trial court in this manner should be affirmed because the navigation equations at the heart of this case are directed to unpatentable laws of nature. [00:24:55] Speaker 03: With regard to Alice step one... [00:24:59] Speaker 04: Because I assume you agree that Alice did not overrule Deere. [00:25:06] Speaker 03: Yes, Your Honor. [00:25:07] Speaker 04: So how is this case different from Deere? [00:25:13] Speaker 03: In one respect, Your Honor, Deere had a specific outcome that was tied to a product. [00:25:25] Speaker 03: This case and these claims [00:25:28] Speaker 03: do nothing more than solve an equation. [00:25:34] Speaker 03: Inputs go in, numbers go in from conventional sensors, and out comes another number. [00:25:40] Speaker 04: In that sense... Okay, so Mr. Kelly had tried to claim that one thing that was different about deer is that somehow some of the [00:25:51] Speaker 04: physical elements in deer are different, they're novel. [00:25:55] Speaker 04: But I have deer in front of me, and I'm reviewing the majority opinion, and they make no reference to novel-specific elements in their discussion of why it's patent-eligible. [00:26:06] Speaker 04: In fact, in deer, the only reason they say it's patent-eligible, we view respondents' claims as nothing more than a process for molding rubber products and not as an attempt to patent a mathematical formula. [00:26:18] Speaker 04: And it goes on to say, we recognize, of course, that this process involves a mathematical formula. [00:26:22] Speaker 04: So why isn't this an attempt to patent a means of tracking in general, a means of tracking without reference to ground? [00:26:31] Speaker 04: Either way, it kind of doesn't matter to me. [00:26:33] Speaker 04: But a means of tracking that happens to utilize a formula as part of the tracking process. [00:26:40] Speaker 04: Why isn't that exactly like deer? [00:26:46] Speaker 03: Because these claims involve nothing more than solving mathematical equations. [00:26:53] Speaker 04: No, they involve using sensors to gather data and putting it into a mathematical equation and then outputting it. [00:27:00] Speaker 04: Because there is data gathering from the sensors. [00:27:04] Speaker 04: And this isn't just solving a mathematical equation. [00:27:08] Speaker 04: There's a useful result that comes from it. [00:27:10] Speaker 04: You're able to track an object, just like in [00:27:13] Speaker 04: deer, there was a useful result that came from utilizing that equation. [00:27:17] Speaker 04: You cured rubber better than the prior processes were able to do so. [00:27:21] Speaker 04: So why? [00:27:22] Speaker 04: I don't know. [00:27:23] Speaker 04: This is where I'm struggling. [00:27:24] Speaker 04: I mean, Alice is such an amorphous thing that, I mean, it's almost, you know, it's like shooting ducks with a blindfold on. [00:27:30] Speaker 04: You know, you can't sort of figure out where they are. [00:27:32] Speaker 04: But deer just seems so concrete, you know, and this case seems to track so clearly on it. [00:27:39] Speaker 04: That, to me, is your obstacle. [00:27:41] Speaker 04: You don't have to mention Alice again, because deer is clearly still good law, and the cases are so on point. [00:27:46] Speaker 04: That's your obstacle to overcome for me. [00:27:49] Speaker 03: The difference in these claims, Your Honor, when we look at these claims, is that there is not a product at the end. [00:27:58] Speaker 03: These claims are very broadly construed, and the final product is oppose a number, a mathematical expression. [00:28:10] Speaker 03: These claims do not then feed that mathematical information into a tracking system. [00:28:21] Speaker 03: These claims are extremely broadly crafted and there are consequences to drafting claims this broadly. [00:28:31] Speaker 05: Am I correct that the sensors that are involved are all on the aircraft and nothing's fed through a ground station? [00:28:40] Speaker 05: in either circumstance. [00:28:43] Speaker 03: By either circumstance, do you mean the prior art? [00:28:46] Speaker 05: In the prior art or in this? [00:28:49] Speaker 05: It's simply that there's a sensor on the aircraft in the prior art that tracks the position relative to the ground. [00:28:56] Speaker 03: That's correct, Your Honor, and I believe the computing element is on the aircraft in the prior art as well. [00:29:09] Speaker 04: Is there anything further you'd like to add? [00:29:10] Speaker 04: I know your time is very brief. [00:29:15] Speaker 03: I would just add, Your Honor, that these claims so broad, the only elements we have are conventional sensors that gather data. [00:29:25] Speaker 03: They do not do anything that they did not do before. [00:29:29] Speaker 03: And the computing element, as opposed to ENFISH and all of those other cases, [00:29:35] Speaker 03: is described as nothing more than an element that performs a mathematical operation. [00:29:40] Speaker 03: In the case of claim three, an integration. [00:29:44] Speaker 03: In the case of claim 13, a double integration. [00:29:49] Speaker 03: It's difficult to even call those algorithms. [00:29:54] Speaker 03: They are so general. [00:29:57] Speaker 03: And with that, Your Honor, if there are no further questions, thank you very much. [00:30:02] Speaker 04: OK, thank you, Mr. Zager. [00:30:04] Speaker 04: Ms. [00:30:05] Speaker 04: Addy? [00:30:05] Speaker 04: Why don't you add a minute to her rebuttal time, because we left the other folks go over a little bit. [00:30:12] Speaker 00: Thank you, Your Honors. [00:30:13] Speaker 00: First of all, the Court of Federal Claims didn't consider this a representative claim case. [00:30:19] Speaker 00: If you look at the decision at A4, the Court of Federal Claims said, and this is on the very first line on page A4, claims 2 through 21 all depend, directly or indirectly, on claim 1, [00:30:35] Speaker 00: and thus incorporate the same three limitations. [00:30:39] Speaker 00: This shows that the Court of Federal Claims erred in not specifically considering the additional limitations in the dependent claims. [00:30:47] Speaker 00: But regardless, you can look at the independent claims. [00:30:51] Speaker 00: And what Appellee's counsel is trying to get us to do here is a novelty analysis. [00:30:59] Speaker 00: But that's not what's required for inventive concept. [00:31:02] Speaker 00: Inventive concept is something that's sufficient to determine that we're not using an abstract idea. [00:31:10] Speaker 00: But Appellee's counsel admit that all these limitations are present. [00:31:16] Speaker 00: We're not looking to see whether they're novel. [00:31:18] Speaker 00: We're not looking to see whether they're generic. [00:31:21] Speaker 00: We're looking to see whether they're structure that's present. [00:31:24] Speaker 00: And it's more than just the sensors. [00:31:26] Speaker 00: It's the sensors that determine an orientation. [00:31:30] Speaker 00: They determine something that the aircraft can use, and they solve the problem of not having to use the ground as a reference. [00:31:39] Speaker 00: That is new. [00:31:41] Speaker 00: So even if we had to raise the level of novelty, we would survive it, just as the PTAB held we did. [00:31:47] Speaker 00: Your Honors, in conclusion, the asserted claims are limited in scope to an ordered combination of patent-eligible elements. [00:31:57] Speaker 00: They solve the known problems in the art, [00:32:00] Speaker 00: By tracking an object without reference to ground, this case should be reversed. [00:32:06] Speaker 00: All right. [00:32:06] Speaker 04: Thank you, Ms. [00:32:07] Speaker 04: Haddie. [00:32:07] Speaker 04: I thank all three counsel. [00:32:09] Speaker 04: The case is taken under submission.