[00:00:00] Speaker 04:
And this is the method issue, right?

[00:00:04] Speaker 04:
Because the patent, if I'm not mistaken, the patent describes itself as a method.

[00:00:12] Speaker 04:
I had that here a moment ago.

[00:00:14] Speaker 04:
Let me find that language for you in case you've forgotten it.

[00:00:20] Speaker 04:
The patent says a system and method provide for establishment and use of permission sets for subscribers

[00:00:30] Speaker 04:
where client applications in a wireless communication environment are requesting location information for a particular wireless communications device from a provider of such information.

[00:00:44] Speaker 04:
Now, it's really their question, but I'll put it to you anyway.

[00:00:48] Speaker 04:
What's that got to do with financial services or

[00:00:53] Speaker 04:
What is the exact language that I keep quoting for you?

[00:00:56] Speaker 04:
Financial product or financial service.

[00:01:00] Speaker 04:
There's not even the word in there.

[00:01:02] Speaker 04:
It's financial.

[00:01:03] Speaker 01:
Correct.

[00:01:04] Speaker 01:
The claims do not claim the practice, administration, or management of a financial product.

[00:01:09] Speaker 02:
So the director's decision to institute here was arbitrary and capricious.

[00:01:14] Speaker 01:
The director's decision to cancel the patent

[00:01:17] Speaker 01:
is in excess of statutory jurisdiction, contrary to law, and arbitrary comprises.

[00:01:21] Speaker 00:
But if we find that this is not a CVM patent, it's not a question of institution, is it?

[00:01:27] Speaker 00:
It's a question of jurisdiction.

[00:01:28] Speaker 01:
That's correct.

[00:01:29] Speaker 01:
And so the proceeding would be dismissed.

[00:01:32] Speaker 01:
The cancellation would be reversed.

[00:01:36] Speaker 01:
The proceeding would be dismissed.

[00:01:37] Speaker 00:
If we find that these are not CVMs, then what's left in view of the

[00:01:44] Speaker 00:
different patents here.

[00:01:45] Speaker 00:
What's left for us to decide?

[00:01:47] Speaker 01:
So if you decide that neither of these is a CBM, then the 752 patent is reinstated.

[00:01:52] Speaker 01:
You would reverse that, and the other side could go and litigate that.

[00:01:58] Speaker 01:
You still would need to decide the IPR on the 205 patent only.

[00:02:02] Speaker 01:
There was an IPR on the 752 patent, but it did not institute on or did not invalidate the claims that are on appeal here.

[00:02:14] Speaker 04:
Anything else?

[00:02:19] Speaker 01:
We're back to Your Honor's colloquy with my friend on the other side.

[00:02:25] Speaker 02:
When you're looking at what the statute says... This one, honestly, seems like... I don't know what the board's doing here.

[00:02:33] Speaker 02:
It can't be that any patent that can reference a financial institution or find an ATM or something like that is a cover business about the patent, even if you think

[00:02:44] Speaker 02:
that as we've said in our cases that that language is to be construed broadly.

[00:02:49] Speaker 01:
I think that's exactly right.

[00:02:51] Speaker 02:
This is arbitrary and capricious.

[00:02:53] Speaker 01:
We don't need to argue for a banks and brokerages definition to say that this is arbitrary and capricious because what my friend is arguing for and what this panel of the board decided in this case

[00:03:03] Speaker 01:
is indistinguishable from what your honor just said, that basically everything is a financial product or service.

[00:03:08] Speaker 01:
And it also reads out, and I know I keep coming back to this, it reads out both used in and practiced administration or management, which are important parts of the definition as well.

[00:03:17] Speaker 01:
Literally everything can be subject to CBM review.

[00:03:20] Speaker 01:
CBM, as I said before, is very powerful.

[00:03:22] Speaker 01:
You can litigate kinds of invalidity grounds that you cannot litigate in an IPR.

[00:03:29] Speaker 01:
There's no time limit, unlike a PGR.

[00:03:33] Speaker 01:
of course, the different burdens and different decision-maker apply compared to district court review.

[00:03:38] Speaker 01:
So if Congress was going to create something this powerful, there's a trade-off.

[00:03:42] Speaker 01:
The two trade-offs are it's time-limited to eight years, and it's limited only to practice, administration, or management of a financial product or service.

[00:03:50] Speaker 01:
And that's why it's so important for the court, having concluded that this is part of the judicially reviewable final written decision, to enforce it here and to tell the board that it is exceeding its statutory jurisdiction.

[00:04:02] Speaker 04:
Now they could win in this case if they can convince us to overrule Versada, right?

[00:04:09] Speaker 01:
Even if you held that it's not reviewable on appeal from the frontal written decision, we would still submit that as in part three of the dissent in Versada, that this is so in excess that it still would not be barred from review because it is

[00:04:27] Speaker 01:
Shall we say extra hard to prohibit judicial review of something that is in clear derogation of statutory limits on jurisdiction.

[00:04:35] Speaker 04:
You would invoke Judge Hughes' savings clause in his persona dissent.

[00:04:39] Speaker 01:
Well, I think that we could, because the error here is so clear, I think we could win every which way.

[00:04:44] Speaker 01:
We of course think that essentially no matter what the Supreme Court does in Coiso, this court right now says that most things are not reviewable.

[00:04:53] Speaker 01:
under Quozo, but that this, that the jurisdiction of the board to institute and decide and cancel a patent on the CBM is reviewable.

[00:05:02] Speaker 01:
We think that that is not going to change.

[00:05:04] Speaker 01:
Of course, if the Supreme Court said something extraordinarily broad, then I'm sure we could submit 28 jail letters and talk about what the importance of that decision was.

[00:05:12] Speaker 01:
I'd be happy to answer any more questions about the definition.

[00:05:16] Speaker 01:
I could say just a few words about the 101 issue unless the court wants to

[00:05:21] Speaker 01:
I don't want to tax the court's patients.

[00:05:24] Speaker 01:
But on the 101 issue, we think that if this were something that should be litigated before the board and not before a district court, that this is directed to patent-eligible subject matter, because it's dealing with a problem that does not arise in the brick and mortar context.

[00:05:42] Speaker 01:
It is a problem specific to the wireless network context to which the claims are directed.

[00:05:47] Speaker 01:
And it solves a fundamental problem of privacy

[00:05:50] Speaker 01:
This is listed right in column one of the specification.

[00:05:53] Speaker 01:
A problem of privacy that is specific to wireless users who are all the time generating little electronic breadcrumbs indicating where they are located.

[00:06:03] Speaker 01:
That creates a new privacy problem and this is an improvement in the way networks work because it allows subscribers to understand that their information is being held privately except to the extent that they wish to have it disseminated for some useful and valuable purpose.

[00:06:21] Speaker 01:
We think that that is not directed to an abstract idea.

[00:06:24] Speaker 01:
And even if it were, it would rest on something more that the court was talking about at step two of Alice.

[00:06:33] Speaker 01:
And for that reason, we think that it would survive 101 review.

[00:06:38] Speaker 01:
But we think that this court should not decide that, of course.

[00:06:41] Speaker 01:
It should let a proper tribunal decide that after the CPM is reversed.

[00:06:46] Speaker 01:
If the court has no further questions, I'm happy to reserve my review.

[00:06:48] Speaker 00:
We have your argument.

[00:06:49] Speaker 01:
Thank you.

[00:07:03] Speaker 03:
I may please the court.

[00:07:06] Speaker 03:
I would suggest that this patent, the 752 patent, sits in the sweet spot for the type of patent that Congress was concerned about when it initiated and brought into being this transitional program under Section 18.

[00:07:25] Speaker 03:
It's patents that issued in the late 1990s and 2000s that are directed to... You point to me any language in

[00:07:34] Speaker 02:
any representative claim that talks about any kind of financial service or financial information or anything remotely close to what we found to be that in our other cases?

[00:07:46] Speaker 03:
I think that this falls squarely within the provision in Site Sound and Blue Calypso when you look at dependent claims 11 and 22.

[00:07:59] Speaker 03:
Dependent claims 11 and 22.

[00:08:06] Speaker 03:
Those claims are not challenged in the proceeding, but that doesn't matter with respect to ascertaining whether a patent is CBM eligible.

[00:08:18] Speaker 03:
If any claim in the patent, whether it's a challenged claim or not.

[00:08:20] Speaker 04:
It is the case that if only one claim in a patent is a CBM claim, then the whole patent is a CBM.

[00:08:27] Speaker 04:
Is that your position?

[00:08:28] Speaker 03:
That's my position, that's the PTO's position, and that's this court, I think, is recognized.

[00:08:34] Speaker 03:
So if you look at dependent claims 11 and 22, so just to set this... Are we on A478?

[00:08:43] Speaker 03:
A478 and A479.

[00:08:47] Speaker 03:
Claim 11 is on 478 and 12 is on 479.

[00:08:50] Speaker 03:
And just to set the stage for that,

[00:08:55] Speaker 03:
If I could direct your attention to A465, which is Figure 1 of the... There is a reference in Claim 11 to billing functions.

[00:09:05] Speaker 04:
Is that what you're talking about?

[00:09:07] Speaker 04:
Perform at least one of automated billing functions?

[00:09:10] Speaker 03:
Yes, and I can explain what that is in the context of Figure 1, which is on A465.

[00:09:16] Speaker 03:
So there are two ways in which the client application

[00:09:24] Speaker 03:
which is element 24 in figure 1, sits at the heart of financial transactions and at the heart of a business method.

[00:09:32] Speaker 03:
The one that the PTAB found persuasive was that the client application is a proxy for a business.

[00:09:41] Speaker 03:
And through the subscriber profile, it allows you to consummate a transaction between a subscriber and a business.

[00:09:53] Speaker 03:
wants the location information.

[00:09:56] Speaker 04:
You know, I may have been a little hasty in agreeing with you that if any one claim has a financial product or service in it, then the patent becomes a CBM.

[00:10:09] Speaker 04:
Because the statute doesn't read that way, does it?

[00:10:14] Speaker 04:
Let's look at the statute one more time.

[00:10:22] Speaker 04:
The statute says, for purposes of this section, the term covered business method patent means a patent that claims a method or corresponding apparatus for performing that means a patent that claims.

[00:10:39] Speaker 04:
It doesn't say a claim.

[00:10:41] Speaker 04:
It says a patent that claims.

[00:10:43] Speaker 04:
Now, the patent is the overall written description.

[00:10:50] Speaker 04:
all the claims taken together, what we call the specification.

[00:10:54] Speaker 04:
So you really have to look at the whole patent, i.e.

[00:10:57] Speaker 04:
the invention, wouldn't you?

[00:10:59] Speaker 03:
Well, you do, and the board has to on a, and this is a fact-intensive inquiry that Congress has delegated to the agency, you have to look at the scope of the claim.

[00:11:14] Speaker 03:
And you cannot ascertain the scope of the claim.

[00:11:17] Speaker 03:
without looking to the specification.

[00:11:19] Speaker 03:
And if a claim is financially neutral, so to speak, and any talented patent application drafter can draft a financially neutral claim that can then be read onto any number of business activities, you have to turn to the scope of the patent to figure out whether it's a CPM patent.

[00:11:45] Speaker 03:
And the client application here, if we go to figure one, sits at the heart of two separate financial transactions.

[00:11:55] Speaker 03:
One is the money that can pass in between a wireless subscriber and the client application.

[00:12:09] Speaker 03:
If, in fact, the location information is provided, then

[00:12:13] Speaker 02:
Where in the patent does it say money passes?

[00:12:17] Speaker 02:
Are you relying on the billing function in claim 12?

[00:12:20] Speaker 03:
Well, certainly in dependent claims, I think it was 11 and 22, that's automatic billing that the access manager, which is the wireless service provider... I just want to make sure you didn't make these arguments before the board.

[00:12:36] Speaker 03:
Did the board rely on 11 and 22?

[00:12:40] Speaker 03:
The board did not rely on 11 and 22 in finding that this patent was CBM eligible.

[00:12:48] Speaker 03:
But in our petition for- What did the board rely on?

[00:12:53] Speaker 03:
The board relied on the client application in claim 25 sitting at the heart of basically financial activity.

[00:13:09] Speaker 03:
The client application is a proxy for a business that wants to push advertising or special offers to wireless subscribers if they're permitted to have their location information.

[00:13:26] Speaker 03:
So the board looked at the client application and then turned to the scope, the full scope of the patent, and determined that that's basically a business method.

[00:13:34] Speaker 02:
Where does it say anything about advertising, client 25?

[00:13:38] Speaker 02:
I just read it quickly.

[00:13:39] Speaker 03:
Claim 25 doesn't have that.

[00:13:41] Speaker 03:
There, the board was relying on the incidental to or complementary to a financial activity.

[00:13:49] Speaker 02:
But it still has to be somewhere in the patent, doesn't it?

[00:13:51] Speaker 02:
Well, it is indeed.

[00:13:52] Speaker 02:
It just make up the notion that, oh, well, somebody smart could use this patent for financial reasons and make money.

[00:13:58] Speaker 02:
It has to be in the patent.

[00:14:00] Speaker 03:
Well, it's certainly in the patent.

[00:14:01] Speaker 03:
It's in the specification.

[00:14:03] Speaker 02:
Are you talking about that one line?

[00:14:07] Speaker 02:
This one's tough for me.

[00:14:08] Speaker 02:
There is one line that the board cited to, I think you cited to it, out of this entire patent, which is talking about preferences for location services and privacy.

[00:14:19] Speaker 02:
I just don't see how that is an arbitrary and capricious when you pluck these.

[00:14:23] Speaker 02:
I mean, 11 and 12 that the board had relied on, maybe that's a better argument, but that wasn't their basis.

[00:14:29] Speaker 03:
Well, it's not, but there's no sense in remanding to the board when the board can simply turn

[00:14:37] Speaker 03:
those dependent claims and find an express billing application.

[00:14:41] Speaker 04:
I have a little trouble with that theory because that theory suggests that, let's go back to my hypothetical about the stent, that after I get through describing my stent and everything else, I can tack on a dependent claim somewhere down claim 436 and say, and by the way,

[00:15:02] Speaker 04:
this invention is designed to make money, and the way to make money is to have a bank account or whatever.

[00:15:11] Speaker 04:
I don't think that makes it a CBM, do you?

[00:15:15] Speaker 03:
Well, on those facts, perhaps not.

[00:15:18] Speaker 03:
But those aren't the facts that we have here.

[00:15:21] Speaker 00:
And for a claim to be, again, the facts of Dutch players

[00:15:29] Speaker 00:
scenario pretty close to here.

[00:15:30] Speaker 00:
How are they different?

[00:15:32] Speaker 03:
Well, I think they're very different.

[00:15:33] Speaker 03:
A client application here is not a stent.

[00:15:38] Speaker 03:
It's a proxy for a business, a business that is looking to conduct business with cell phone subscribers.

[00:15:45] Speaker 00:
This is a method to locate things around you.

[00:15:50] Speaker 03:
No, it's not a method to locate things.

[00:15:54] Speaker 03:
It's a method that provisions where a wireless network provider or a fee will provide location information to a business so that a business can thereafter target subscribers and sell their phone network.

[00:16:12] Speaker 03:
There's two ways in which this client application, according to the patent specification, sits at the heart

[00:16:19] Speaker 03:
of two different types of financial transactions.

[00:16:24] Speaker 03:
One is the client application targeting cell phone subscribers, the business targeting cell phone subscribers, if it in fact gets the location information, which is what claim 25 is directed to.

[00:16:41] Speaker 03:
It's provisioning the location information for a fee.

[00:16:44] Speaker 02:
But where does it say for a fee?

[00:16:47] Speaker 03:
It doesn't expressly say that.

[00:16:49] Speaker 02:
It's saying it says for a fee when it doesn't say it in the claims.

[00:16:53] Speaker 02:
I mean, yes.

[00:16:54] Speaker 02:
I mean, that would make it much more like a business method patent if it said, here's this service.

[00:16:58] Speaker 02:
If you opt into it, you can gain better access to clients.

[00:17:03] Speaker 02:
I mean, that sounds like the pricing algorithm.

[00:17:06] Speaker 02:
But even when you start out with the background and the invention in the summary, it's all about privacy issues and letting users

[00:17:15] Speaker 02:
put forth their preferences about privacy issues.

[00:17:20] Speaker 02:
I see almost nothing in this patent about providing business services.

[00:17:30] Speaker 02:
I mean, 11 and 22, if the board had relied on that, you might have a better argument there.

[00:17:36] Speaker 02:
It still seems pretty tenuous.

[00:17:37] Speaker 02:
But I don't see how we can look at 11 and 22, and that's not the basis of the board's decision.

[00:17:43] Speaker 03:
The chainery doctrine did not do away with the doctrine of harmless error.

[00:17:50] Speaker 03:
And Section 706 also... Can we just put aside 11 and 22?

[00:17:55] Speaker 02:
I'm not going to look at them.

[00:17:57] Speaker 02:
So beyond 11 and 22, what do you have that suggests that this is a business method patent?

[00:18:03] Speaker 03:
Well, we have the discretion of the agency in defining its mission in determining what patents are CBM eligible.

[00:18:12] Speaker 03:
And this patent,

[00:18:14] Speaker 03:
is a patent that issued in 2000, right in the time frame that Congress was concerned about.

[00:18:18] Speaker 03:
And it's an invalid patent under Section 101.

[00:18:22] Speaker 02:
So I think that the core of the agency's authority in- Congress didn't enact a bill saying you can bring any 101 challenge on any patent to the PTO.

[00:18:33] Speaker 02:
Maybe they should have, but they didn't.

[00:18:36] Speaker 02:
So I mean, your timing argument and your 101 argument still isn't getting back to any language in this patent.

[00:18:43] Speaker 02:
in its claims or specifications that talk about a business method?

[00:18:48] Speaker 03:
I think that if this court is going to look at claims that are financially neutral, that don't have an express hook to a financial activity, such as the exchange of money for goods and services, and say that those patents are not

[00:19:11] Speaker 03:
eligible for CBM review, then that would thwart Congress's expressed intent to delegate to the agency to define its mission under Section 18.

[00:19:21] Speaker 00:
But there's got to be some limit to the scope of the argument that you're making.

[00:19:26] Speaker 00:
If I have a patent, and the patent is a method to shovel dirt, and I put in claim under claim 25, and by the way, I'm going to sell the dirt.

[00:19:40] Speaker 00:
Is that a method?

[00:19:42] Speaker 00:
Is that a CVM?

[00:19:48] Speaker 03:
It's not.

[00:19:49] Speaker 03:
I think we have to leave that to the discretion of the agency and determine whether this decision was arbitrary and capricious.

[00:19:54] Speaker 00:
Well, argue that it is or it's not.

[00:20:00] Speaker 04:
Now, it's not a question of arbitrary and capricious.

[00:20:03] Speaker 04:
It's a question of whether the statute properly construed supports that interpretation.

[00:20:12] Speaker 04:
There's no arbitrary and capricious standard involved at all.

[00:20:15] Speaker 04:
This is a question of statutory interpretation.

[00:20:18] Speaker 03:
Well, where Congress has authorized the agency to conduct rulemaking to implement the statute, and this is a CBM eligibility is a procedural rule.

[00:20:30] Speaker 03:
CBM eligibility does not substantively impact patentability.

[00:20:36] Speaker 04:
What is the CBM eligible rule that the agency has adopted?

[00:20:43] Speaker 04:
You're not talking about the decision in this case, are you?

[00:20:47] Speaker 03:
No, I'm talking about the agencies.

[00:20:53] Speaker 03:
So section 326, which is the PGR provision that gives the agency the authority to establish rules on whether to institute a proceeding.

[00:21:08] Speaker 03:
combined with Section 18 that gives the agency the authority to implement this transitional program for review of covered business method patents.

[00:21:24] Speaker 04:
That's fine.

[00:21:25] Speaker 03:
Delegates to the agency the authority to determine whether a patent is CBM eligible.

[00:21:33] Speaker 04:
Only if it conforms to the statutory requirements for a CBM.

[00:21:39] Speaker 04:
I'm sorry, but we've got a case that's squarely on that point, and that's Versada.

[00:21:46] Speaker 04:
Versada says that what is before us this morning is the final written decision by the PTAB in this particular case.

[00:21:57] Speaker 04:
And in that final written decision, they are assuming that they have jurisdiction over the patent involved in this case.

[00:22:08] Speaker 04:
under the statute.

[00:22:10] Speaker 04:
And that's the only question before us.

[00:22:13] Speaker 04:
And they say they do.

[00:22:14] Speaker 04:
Well, that's not a question of arbitrary and capricious.

[00:22:18] Speaker 04:
That's a question of, have they read the statute correctly?

[00:22:23] Speaker 04:
Or have I missed something?

[00:22:25] Speaker 04:
Am I wrong about that?

[00:22:27] Speaker 03:
I don't think so.

[00:22:28] Speaker 03:
But I guess I see I'm just out of time.

[00:22:33] Speaker 02:
Billy, I would think you would be citing clue calypso, which says,

[00:22:36] Speaker 02:
we review that decision of whether it's a CBN patent or not under an arbitrary or capricious standard.

[00:22:43] Speaker 03:
And sight sound, and the fact that one panel might come out a different way on these facts, on these claims, it does not make it arbitrary or capricious.

[00:22:54] Speaker 02:
It's not going to help you very much in this case, because even under an arbitrary or capricious standard, given that there's nothing in this patent about a covered business method, it's arbitrary and capricious.

[00:23:05] Speaker 03:
Well, you have the board's determination that a client application, and this is in column 11 of the patent, line 12, client applications may be service or goods providers whose business is geographically oriented, and those businesses want to connect with cell phone subscribers.

[00:23:23] Speaker 03:
And claim 25 controls that information and that exchange of information so that businesses can conduct

[00:23:36] Speaker 03:
and consummate financial transactions with cell subscribers and then according to the dependent claims that the wireless service provider who is controlling that information can automatically bill the service providers every time they suggest that information.

[00:23:50] Speaker 04:
And that falls squarely within... You can make the argument that the whole patent is part of the record and therefore

[00:24:00] Speaker 04:
11 and 22 are part of the record, even if the board did not specifically identify them as the basis for their CBM decision.

[00:24:10] Speaker 03:
They certainly are.

[00:24:11] Speaker 03:
Section 706 mandates whole record review.

[00:24:15] Speaker 00:
Why didn't you make these arguments below, before the board?

[00:24:18] Speaker 03:
I got sidetracked in responding to that before.

[00:24:23] Speaker 03:
In its petition for inter partes review, this is at A81,

[00:24:30] Speaker 03:
Google said that the 752 patent, and I'm reading, also covers financial aspects that facilitate a financial transaction such as data logs in support of billing and other administrative tasks.

[00:24:43] Speaker 02:
Sorry, I just want to clarify.

[00:24:44] Speaker 02:
You just said you were reading from the petition for inter-parties review.

[00:24:48] Speaker 02:
No.

[00:24:49] Speaker 02:
the petition for CBM review?

[00:24:50] Speaker 03:
Yes, I'm sorry.

[00:24:51] Speaker 03:
If I said inter partes review, I misspoke.

[00:24:53] Speaker 03:
Because you asked for inter partes here, and you didn't get it.

[00:24:56] Speaker 03:
No, we did get it, and claim 25 was found.

[00:25:00] Speaker 02:
You didn't get as much as you wanted.

[00:25:01] Speaker 03:
Right.

[00:25:02] Speaker 03:
The board didn't institute on the deep end.

[00:25:07] Speaker 02:
Sorry, I'm leading you down a side track.

[00:25:08] Speaker 02:
You're off.

[00:25:08] Speaker 02:
Answer.

[00:25:09] Speaker 03:
So in its petition for inter partes review,

[00:25:13] Speaker 03:
Google pointed to that specific automated billing feature that dependent claims 11 and 22 are directed to.

[00:25:20] Speaker 03:
Now, in this institution decision, the board didn't latch on to that and didn't latch on to those claims.

[00:25:26] Speaker 03:
But it could have.

[00:25:28] Speaker 03:
And there's no need to send this back.

[00:25:30] Speaker 04:
We can't review the institution decision.

[00:25:38] Speaker 04:
It's unreviewable.

[00:25:42] Speaker 03:
The aspect of the institution decision that says this is a CBM eligible claim is reviewable.

[00:25:49] Speaker 00:
Give us your concluding thoughts, because you're well over your time.

[00:25:52] Speaker 03:
Right.

[00:25:53] Speaker 03:
So again, the client application sits at the heart of two business methods, actually.

[00:26:04] Speaker 03:
One for charging for the provision of location information, which is in the dependent claims, and the other for

[00:26:10] Speaker 03:
to assist in consummating financial transactions with the subscribers for businesses to use.

[00:26:16] Speaker 03:
And I'd submit that this patent sits at the heart of the type of patent that Congress was concerned about because it arose in that period between State Street and Bilski and it's directed to unpatentable subject matter.

[00:26:29] Speaker 00:
Thank you very much.

[00:26:32] Speaker 00:
Councillor Jay.

[00:26:33] Speaker 01:
Thank you, Your Honor.

[00:26:34] Speaker 01:
Just a few

[00:26:35] Speaker 01:
thoughts and rebuttal.

[00:26:37] Speaker 01:
First, on claims 11 and 22, the passage that my friend just read from is not actually citing claim 11 or 22.

[00:26:43] Speaker 01:
It's citing the specification.

[00:26:45] Speaker 01:
You will search in vain for claim 11 or 22 anywhere in the petition mentioned by number.

[00:26:51] Speaker 01:
And my friend says that a harmless error is still part of this court's review, but so are exhaustion and preservation.

[00:26:58] Speaker 01:
And in addition,

[00:26:59] Speaker 01:
This court's chennery doctrine indicates that when the agency has a layer of discretion, the court shouldn't just say, well, harmless error, the agency probably would have exercised its discretion the same way anyway.

[00:27:11] Speaker 01:
The agency presented with a petition saying, claims 11 and 22 are eligible, but we want to institute a covered business method review on several other claims, might well have reacted quite differently than it did when it thought that the claims being challenged were, in fact, covered business method claims.

[00:27:27] Speaker 04:
But that's pure speculation.

[00:27:30] Speaker 01:
And it's exactly why this court doesn't engage in speculation like that.

[00:27:33] Speaker 04:
So why are you engaging in it?

[00:27:35] Speaker 01:
I'm urging the court not to.

[00:27:37] Speaker 01:
And on the question of whether the actual challenge claims are covered business by the claims, my friend suggests the business embodiment.

[00:27:46] Speaker 01:
But if you look right before the passage that he read from at the top of column 11, you'll see that emergency services and businesses wanting to keep track of their own employees are the first two embodiments listed.

[00:27:57] Speaker 01:
Those are not financial at all.

[00:27:59] Speaker 01:
Financial, commercial, whatever word you want to use.

[00:28:03] Speaker 01:
Ultimately, arbitrary and capricious review is not a rubber stamp.

[00:28:10] Speaker 01:
Action not in accordance with a statute or not otherwise in accordance with law is arbitrary and capricious.

[00:28:14] Speaker 01:
It is invalid under the APA.

[00:28:16] Speaker 01:
We urge the court to hold exactly that as to this decision here.

[00:28:19] Speaker 01:
Unless the court has any further questions.

[00:28:21] Speaker 01:
Thank you very much.

[00:28:22] Speaker 01:
We gave you both a pretty hard time.