[00:00:00] Speaker 01: Atrix software versus Green Shades software. [00:00:10] Speaker 03: I'm sorry, Mr. Ratner, you call the Atrix [00:00:30] Speaker 03: Yes, sir. [00:00:33] Speaker 01: Mr. Lunseth, please proceed. [00:00:41] Speaker 03: May it please the court? [00:00:43] Speaker 03: There are quite a few issues in the brief, and there are two major sets of issues. [00:00:46] Speaker 03: One is the district court's misconstruction of claim one of the 615 patent, an issue that was never raised by any party. [00:00:54] Speaker 03: It was done so as Fonte. [00:00:56] Speaker 03: I intend to leave that for the briefs unless the panel has questions. [00:01:00] Speaker 03: Is this this tangibility point? [00:01:01] Speaker 03: Is that what you're just referring to? [00:01:02] Speaker 03: The tangible embodiment issue, yes. [00:01:05] Speaker 03: If you have questions, I'll be glad to answer the questions, but I don't think there's enough time. [00:01:10] Speaker 03: I want to go directly to the Alice abstract idea issue and discuss that. [00:01:16] Speaker 03: And the relief that we would like, this case had been pending for two and a half years, and we're still at the 12b6 stage. [00:01:23] Speaker 03: We would like to have the court reverse the Ellis decision and send it back in such a way that there's no more rebuilding of the record down at the district court. [00:01:31] Speaker 03: So we come back up here in another year or something like that again on a 12B6. [00:01:37] Speaker 03: As far as the Ellis issue is concerned, I think this case puts this issue squarely. [00:01:45] Speaker 03: Can a district court generate an abstract idea at a high level of generality? [00:01:51] Speaker 03: And then if it finds that the patent is an example of it or involved that abstract idea, can it hold that the patent is patent ineligible without regard to the claim language, which is directed to specific improvements to technology? [00:02:11] Speaker 00: So you have not, as I understand it, you have not made any arguments for claims other than claim one. [00:02:21] Speaker 00: that you might win on for, let's say, claim 22 or something, even if you lose on claim one. [00:02:28] Speaker 00: You've treated it all as everything here, we can treat claim one as representative. [00:02:35] Speaker 03: It was easiest to do that in the briefs and for purposes of this discussion. [00:02:39] Speaker 00: There's differences in the claims. [00:02:40] Speaker 00: So if we look at claim one and [00:02:44] Speaker 00: read it in light of your own specifications, description of the evolution of Atrix products and description of what was available, not just with Atrix, but in scanners and OCRs and whatnot. [00:02:59] Speaker 00: What is it that, as reflected in claim one, is the asserted advance over what went before? [00:03:09] Speaker 03: Well, the Atrix claims are for a system. [00:03:13] Speaker 03: And it's an ordered combination. [00:03:15] Speaker 03: And actually, there are a lot of certain advances. [00:03:19] Speaker 03: But what I want to do here is go to one or two of them and discuss those so you can understand what they are. [00:03:26] Speaker 03: And the first one I'm going to go to is the data file element. [00:03:29] Speaker 03: It's a data file. [00:03:31] Speaker 03: and it's comprised of structured predefined data from a user application. [00:03:37] Speaker 03: That user application alone says that this is not a patent that reads on the whole world of filling out forms, it's for add-on software. [00:03:46] Speaker 03: In other words, there needs to be a host application, typically a business accounting software, where the data is created and then the task is how to get the data from that host application [00:03:59] Speaker 03: into the form software in order to fill out a form. [00:04:04] Speaker 03: And the date of invention was November 28, 1995. [00:04:08] Speaker 03: And at that point in time, there were two prior models. [00:04:14] Speaker 03: One was the monolithic code, which we described in the brief. [00:04:17] Speaker 03: And that was very common back in the early 90s, where business accounting software would be written in a monobloc of code [00:04:27] Speaker 03: one set of serial code from beginning to end, and the forms were actually written into that code. [00:04:35] Speaker 03: And in order to move the data into the form from wherever it was calculated in that monolithic software model, there would be a code command. [00:04:47] Speaker 03: Go get the value at line 123 and put it in this blanket form. [00:04:52] Speaker 03: The other model was the e-forms model, and the e-forms model [00:04:57] Speaker 03: allowed the creation of a form. [00:04:59] Speaker 03: It wasn't a very good-looking form, as far as we're concerned. [00:05:03] Speaker 03: But the form had data fields similar to what's in the Atrix patent. [00:05:08] Speaker 03: But the only method of moving data from the host application into that form that was disclosed was by writing commands in that data field, something like dbfetch. [00:05:21] Speaker 03: Go to this database and fetch with parameters to execute a database command. [00:05:26] Speaker 03: And each of the data, if there were 10 boxes in the form, each of the boxes had to be coded with a database command to go fetch from a database. [00:05:37] Speaker 03: The problem was when Atrix attempted to go to market with its product, [00:05:46] Speaker 03: that the vendors who create the software, the host application, were jealous of their data structures. [00:05:53] Speaker 03: And by data structures, I mean how they keep the data, where it's kept, and also the syntax. [00:06:00] Speaker 03: And the reason for this was that if they disclose their data structures and a competitor got a hold of it, the competitor could readily convert that data to a new application. [00:06:11] Speaker 03: And then they couldn't get the customer back. [00:06:13] Speaker 03: The data would not be in a proprietary format. [00:06:17] Speaker 03: So to get this product to market, to make it actually work, they had to devise a system where the writer of the host application did not have to give up that sentence. [00:06:26] Speaker 03: The host application is what? [00:06:28] Speaker 03: The business accounting software. [00:06:30] Speaker 03: Whatever the source is of the data, you're going to fill a form out. [00:06:34] Speaker 03: You're going to put data in it. [00:06:36] Speaker 03: We create the form for you. [00:06:37] Speaker 03: We need your data. [00:06:38] Speaker 03: That's the problem. [00:06:40] Speaker 03: So they created the data file element, and the data file element [00:06:45] Speaker 03: is disclosed in the specification. [00:06:49] Speaker 03: And I'll read you a couple of pieces. [00:06:52] Speaker 03: First of all, it's predefined structured data. [00:06:54] Speaker 03: Where is that? [00:06:56] Speaker 03: Column 11, appendix 67. [00:07:00] Speaker 03: And it starts at line 1. [00:07:03] Speaker 03: AUF file, by the way, is there like a PDF file. [00:07:09] Speaker 03: The AUF contains records with tab-delimited fields terminated by a carriage return. [00:07:14] Speaker 03: The first field holds a tag that defines the record and indicates what fields will follow. [00:07:20] Speaker 03: Then there's an example. [00:07:22] Speaker 03: And then it says the numbering and ordering of fields is critical. [00:07:25] Speaker 03: In other words, this is structured data. [00:07:27] Speaker 03: It's I'm going to give you a tray. [00:07:30] Speaker 03: And my tray has 10 slots in it. [00:07:33] Speaker 03: And total wages, tips, and salaries goes in the fifth slot. [00:07:38] Speaker 01: Time out for a second. [00:07:40] Speaker 01: I understand that this example is present. [00:07:42] Speaker 01: But at column 12. [00:07:45] Speaker 01: Line 21, the same specification says, by examining the data requirements for a form, the vendor application can determine what data it should apply in the AUF to correctly fill in as much of the form as possible. [00:08:00] Speaker 01: So with all due respect, it doesn't sound like your system is the one obtaining the data. [00:08:06] Speaker 01: It sounds to me, following this example, [00:08:10] Speaker 01: like it's the vendor application, i.e. [00:08:13] Speaker 01: the third-party software that's going to determine, based on your specification, whether to supply data and what data to supply. [00:08:19] Speaker 03: That's exactly my point, Your Honor. [00:08:22] Speaker 03: The problem was that if Atrix went to a vendor and said, we want to take data out of your host application, how do we do it? [00:08:31] Speaker 03: The vendor would say, no, I'm not going to tell you that. [00:08:33] Speaker 03: It's proprietary to me. [00:08:35] Speaker 03: So they had to come up with a solution where [00:08:39] Speaker 03: the host application, the writer of the host application, or the owner of the host application could pack the data in a file and send it to them without ever disclosing the syntax, the cert syntax. [00:08:54] Speaker 03: So you're exactly right. [00:08:55] Speaker 03: And that was the next section I wanted to read there, because what this section that you referred to describes is the form software publishes a description of the format of the data file. [00:09:09] Speaker 03: For this particular form, we need this data in this exact order. [00:09:14] Speaker 03: You pack it up, and you send it to us. [00:09:17] Speaker 03: And now the owner of the host application or the writer of the host application does that, rather than the vendor of the form software. [00:09:26] Speaker 03: And that was acceptable in the market. [00:09:29] Speaker 03: It was not acceptable to do it the other way around, where the vendor application had to disclose its data structures to the... [00:09:38] Speaker 02: Are you saying that the claims are directed to or are you claiming these methods here? [00:09:44] Speaker 02: For example, are you claiming the vendor applications or these other programs that you're talking about? [00:09:53] Speaker 02: I mean, when I look at the claim that you referred us to, all it's talking about is a file, a data file. [00:09:59] Speaker 03: Yeah. [00:09:59] Speaker 03: It is for a data file, yes. [00:10:01] Speaker 03: And then there's a disclosure about that data file was made. [00:10:04] Speaker 03: No. [00:10:05] Speaker 03: But in the claim, show me in the claim where [00:10:08] Speaker 03: It says that. [00:10:09] Speaker 03: Let me emphasize that this is a 12b6 proceeding, Your Honor, and there's been no claim construction. [00:10:15] Speaker 03: We have not presented any evidence or anything to any court. [00:10:17] Speaker 02: But we said that in step one, we'd look at, we'd determine whether the claims are directed to a subject matter that's ineligible for panning. [00:10:28] Speaker 02: Yes. [00:10:29] Speaker 03: So what is claimed in [00:10:34] Speaker 03: Claim one of the 615, of course, you're right, is a data file. [00:10:39] Speaker 03: But that is a carrier, if you will, that is capable of, it contains predefined structured data. [00:10:52] Speaker 03: And if you publish the structure as disclosed in the specification, then the owner of the vendor application can send you the data. [00:11:00] Speaker 01: Can, but doesn't have to. [00:11:01] Speaker 01: Right? [00:11:02] Speaker 01: You're still relying on compliance by the third-party vendors. [00:11:04] Speaker 03: That's why I don't... That's entirely true. [00:11:06] Speaker 03: But this is a claiming issue, Your Honor. [00:11:09] Speaker 03: Do it the other way around. [00:11:10] Speaker 01: Suppose that... I'm trying to figure out what's inventive about it because, yes, you're asking them, you pack it up and send to us whatever you want. [00:11:19] Speaker 01: This is what we would like, but we don't have to give you what you like. [00:11:21] Speaker 01: I mean, my kids want pizza for dinner, but I give them green beans and chicken. [00:11:24] Speaker 00: You know? [00:11:25] Speaker 01: I mean, you don't get everything you want. [00:11:26] Speaker 01: So the vendor might say, [00:11:28] Speaker 01: No, no thank you, not willing to comply, and then you get nothing. [00:11:32] Speaker 01: I mean, I'm trying to figure out what's inventive about this. [00:11:35] Speaker 03: Well, it worked. [00:11:37] Speaker 03: That's one thing. [00:11:38] Speaker 03: The company has 55 employees, 14 million revenues. [00:11:41] Speaker 01: But as claimed. [00:11:42] Speaker 01: I'm trying to figure out whether this is an abstract idea, and as or whether there's an inventive concept. [00:11:46] Speaker 01: And as claimed, it's just a data file. [00:11:49] Speaker 01: And all that you're saying is inventive is that instead of us trying to take the data from them, we ask them to give us the data. [00:11:55] Speaker 03: Yes. [00:11:56] Speaker 03: No, wait a minute. [00:11:58] Speaker 03: That was completely non-conventional in 1995 for add-on software. [00:12:03] Speaker 03: All the other prior art models did it the other way around. [00:12:07] Speaker 03: And when I say it's a claiming issue, what you're saying is, should you not have written into the claim a claim that you published the template for the data file structure? [00:12:19] Speaker 01: But that makes it too easy to design around the application, because if... Is there something in the spec, since we are on 12b6, and you were not allowed to amend the complaint a third time, I'm not sure, second time, whatever, is there something in the spec that tells me that's new? [00:12:37] Speaker 01: Because you know, I'm not an ordinarily skilled artisan, so you telling me [00:12:42] Speaker 01: This is new and inventive. [00:12:44] Speaker 01: It's just attorney argument, no matter how skilled you may be. [00:12:47] Speaker 01: It's just attorney argument. [00:12:48] Speaker 01: So is there something somewhere that would tell the district court to create a fact question, for example, about whether this is inventive? [00:12:57] Speaker 01: Is there something here that could have prevented 12b6? [00:13:02] Speaker 03: Our proposed amended complaint, paragraphs 43, 44, and 45 say that. [00:13:07] Speaker 01: I know, but it wasn't allowed. [00:13:10] Speaker 01: Your proposed amended complaint wasn't allowed. [00:13:12] Speaker 01: So you had multiple shots at the complaint. [00:13:15] Speaker 01: You decided to go twombly at first. [00:13:17] Speaker 01: That didn't end up working so well for you pre-twombly. [00:13:19] Speaker 01: Form 18, that didn't work so well for you in terms of combating a 12B motion. [00:13:24] Speaker 01: And then you had another shot, and you didn't put in enough specifics. [00:13:27] Speaker 01: I know. [00:13:27] Speaker 01: I think your second amended complaint would have created questions of fact. [00:13:32] Speaker 01: And you probably would have allowed me to reverse this and told the district court, oh, no, no. [00:13:35] Speaker 01: They've at least alleged, taken if true, questions of fact. [00:13:39] Speaker 01: But none of those are in the complaint that was allowed. [00:13:42] Speaker 03: Well, let me make clear that the first amended complaint was not a complaint that was allowed. [00:13:49] Speaker 03: The first amended complaint, we filed a complaint. [00:13:52] Speaker 03: And then before we served the complaint, we amended the complaint. [00:13:56] Speaker 03: The second amended complaint is the first of the amended complaints on which the court made a ruling. [00:14:01] Speaker 03: It was our first chance. [00:14:03] Speaker 03: And we made those allegations in that amended complaint. [00:14:06] Speaker 01: But they didn't allow them. [00:14:07] Speaker 01: So unless you can win on the second amended complaint, I don't see how the record allows me to conclude that there was a fact question on this data file point. [00:14:20] Speaker 01: Because whether I take something from you or whether I say, can I please have it, it doesn't seem [00:14:28] Speaker 01: to me as something that is clearly and unequivocally inventive. [00:14:32] Speaker 01: And let me address it. [00:14:34] Speaker 01: My time is running short. [00:14:35] Speaker 01: I'm in charge of your time, so don't interrupt me. [00:14:37] Speaker 01: OK, I'm sorry. [00:14:39] Speaker 01: You don't need to worry about that. [00:14:40] Speaker 01: So that's where I'm struggling. [00:14:42] Speaker 03: All right. [00:14:44] Speaker 03: What you're asking is why did you not write into the specification in 2002 that [00:14:53] Speaker 03: This is an advantage, and here's how the advantage occurs. [00:14:56] Speaker 01: No, no. [00:14:57] Speaker 01: I'm sorry. [00:14:57] Speaker 01: No, that's not what I'm asking you. [00:14:59] Speaker 01: I'm saying, is there any evidence in this record that a question of fact is created about whether or not there's an inventive aspect? [00:15:06] Speaker 01: It can't just be attorney's argument. [00:15:08] Speaker 01: Even at 12B, you have to allege stuff. [00:15:10] Speaker 03: The answer is, there's no record. [00:15:13] Speaker 03: It was a Form 18 complaint. [00:15:15] Speaker 03: We asked the court to [00:15:17] Speaker 03: Take evidence. [00:15:18] Speaker 03: Make a record. [00:15:19] Speaker 02: Allow in the prosecution history. [00:15:21] Speaker 02: At the end of the day, you did have a patent in the record. [00:15:25] Speaker 02: You do have the claims. [00:15:27] Speaker 02: You do have the intrinsic evidence that comes with the patent. [00:15:32] Speaker 02: When you amended your complaint, you did amend the claims. [00:15:36] Speaker 02: So even had the amendment been granted, you're still stuck with the claims. [00:15:42] Speaker 03: Yes, I agree with you. [00:15:45] Speaker 03: All we added in the amended complaint on this specific issue is the allegation that the inventor discovered that if he had to get the data structures from the owner of the host application, most of them would say no, and he had to come up with a different element. [00:16:00] Speaker 03: So he did, the data file. [00:16:02] Speaker 03: That's alleged in the second amended complaint. [00:16:04] Speaker 00: What in the specification tells us that the claim term, the data file, [00:16:11] Speaker 00: has what you keep referring to as structure. [00:16:16] Speaker 03: OK. [00:16:16] Speaker 03: That's what one skilled in the art would consider a data file to be. [00:16:20] Speaker 03: And it is described in that portion of the specification that I read to you, Your Honor. [00:16:30] Speaker 03: Column 11, line 9, the number and ordering of fields is critical. [00:16:38] Speaker 03: The fields are empty. [00:16:40] Speaker 03: All tabs must still be present within a record. [00:16:43] Speaker 03: In other words, it's a structure. [00:16:45] Speaker 03: That's what is disclosed. [00:16:49] Speaker 03: And it says, contains tab delimited fields. [00:16:52] Speaker 03: This is a classic structured data file. [00:16:55] Speaker 03: No question about it. [00:16:55] Speaker 01: Mr. Lunseth, we've used up all your rebuttal time. [00:16:58] Speaker 01: I'll restore some, but let's move on to Mr. Bain, please. [00:17:01] Speaker ?: Thank you. [00:17:10] Speaker 04: Thank you, Your Honor. [00:17:13] Speaker 04: The District Court properly gained an understanding of the invention strictly looking at the intrinsic record that was presented, which is the patent. [00:17:24] Speaker 04: Under Phillips and under all the law, it's proper for a court to assess what the invention is based on the patent, just like the public ordering the patent should be able to read the patent and get [00:17:35] Speaker 04: an understanding of the invention. [00:17:36] Speaker 01: Well, I'll just say it. [00:17:38] Speaker 01: I don't think the district court got this right. [00:17:40] Speaker 01: That whole tangibility thing doesn't make any sense to me at all. [00:17:44] Speaker 01: So I don't think that's right. [00:17:45] Speaker 01: Then the question is, can I affirm the rejection of claim one under Alice? [00:17:52] Speaker 01: And so I don't have as much confidence having read the opinion as you seem to. [00:17:57] Speaker 01: So why don't you actually focus on the merits? [00:17:59] Speaker 04: Well, I'm focusing on the, with respect to the [00:18:03] Speaker 04: and tangibility component, the court did note three things. [00:18:06] Speaker 04: Number one, that he felt that reading the claims, which is where we must start. [00:18:11] Speaker 01: Okay. [00:18:11] Speaker 01: Maybe you misunderstood. [00:18:12] Speaker 01: I think the opinion on the tangibility point makes no sense. [00:18:15] Speaker 01: I don't think that you should waste any of your time at all trying to defend the district court opinion on that point. [00:18:20] Speaker 02: I agree with Judge DuBois, and I think the court got it wrong on that particular argument. [00:18:27] Speaker 02: The question is whether the result was ultimately correct or not. [00:18:30] Speaker 04: I do think the result of that. [00:18:32] Speaker 04: Yes, I can. [00:18:32] Speaker 04: I don't think that there is an inventive concept present in the claims. [00:18:36] Speaker 04: If you read the claims, they describe different activities which are actually admitted to be part of the prior art from the background section of the invention. [00:18:45] Speaker 04: The idea of using a form generator to create a form file. [00:18:50] Speaker 04: The idea of using a viewer that can have multiple layers where you have the image and then you superimpose upon that fields where you can have editable data. [00:18:58] Speaker 04: that's all described in the background of the invention. [00:19:01] Speaker 04: And if you critically read the dates that are admitted in the background of the invention, you'll see that it's describing technology that was developed years before the effective filing date of this case. [00:19:12] Speaker 04: So if we take that technology that's described in the background of the invention as known conventional computer technology, or excuse me, related to creating a replication of a file and superimposing the data upon it to create these forms, [00:19:28] Speaker 04: But then we ask ourselves, those aspects of the claim are already in the prior art. [00:19:33] Speaker 04: What new, excuse me, in the claim, what new is in the claim? [00:19:36] Speaker 04: And when you remove those functions, all that's left is the generic recitation of files and programs. [00:19:44] Speaker 04: There's no structural detail. [00:19:46] Speaker 04: There's no functional detail to how those are operating. [00:19:50] Speaker 01: How do we know? [00:19:51] Speaker 01: I mean, the data file, [00:19:53] Speaker 01: Don't we need some claim construction here to know what the data file is? [00:19:57] Speaker 01: It doesn't seem to be a generic data file. [00:20:00] Speaker 01: It does seem to have some structure articulated at column 11. [00:20:04] Speaker 01: So how do we know that these are just generic components, as you say, as opposed to specific components defined by the patent? [00:20:15] Speaker 04: Well, column 11 is not the claim. [00:20:17] Speaker 04: Column 11 is directed to preferred embodiments which should not be imported into the claim. [00:20:21] Speaker 01: Well, we have to construe the term data file. [00:20:25] Speaker 01: You know, you want me to say it's a generic term. [00:20:27] Speaker 01: I have to look at how it's used in this patent to make that determination. [00:20:30] Speaker 04: Well, I will show you another section of the specification that expands the scope. [00:20:34] Speaker 04: But I think the first thing we would do if we were to undertake a claim construction is to say that a data file is going to be given this plain and ordinary meaning. [00:20:44] Speaker 04: And a file containing data is a reasonable construction of that. [00:20:47] Speaker 04: to import all the details of all this preferred embodiment from column 11, it would be an improper importation. [00:20:55] Speaker 00: But let me, because let me point out to you also, Your Honor, column four, where the idea... Just to be clear, the district court here did not do a claim construction, didn't have a claim construction set of [00:21:09] Speaker 00: That is correct. [00:21:10] Speaker 04: That is correct. [00:21:11] Speaker 04: And with respect to the data file, he did not actually specifically construe it. [00:21:15] Speaker 00: So what you were just saying is your argument about claim construction an issue that was not, in fact, addressed below. [00:21:23] Speaker 04: Right. [00:21:24] Speaker 04: And the reason I'm saying that it's unnecessary. [00:21:26] Speaker 04: And courts are not obligated to do claim construction on every term. [00:21:30] Speaker 00: That's right. [00:21:30] Speaker 00: So let's talk about the specifics. [00:21:32] Speaker 00: You said something about, [00:21:34] Speaker 00: I will get back to columns 11 and 12, but there's something else in the spec that says, we mean something very, very broad. [00:21:42] Speaker 04: That's correct. [00:21:43] Speaker 04: And that is column four, your honor, appendix 63, beginning at line 57, which is where the first concept of the data file embodiment is discussed. [00:21:56] Speaker 04: And it's the creation of the AUF file. [00:22:00] Speaker 04: This is the part that [00:22:03] Speaker 04: fields in the area of the form that need to be filled in with either automatically taken from another program, such as a payroll application, which was the embodiment that was being discussed before, or significantly, manually filled in by the user. [00:22:17] Speaker 04: So the data file can be created by simply the manual entry by the user, as well as the importation from a third-party application. [00:22:26] Speaker 00: I'm sorry. [00:22:27] Speaker 00: Is that talking about just the data fields [00:22:33] Speaker 00: the form that's going to be filled in, not the data file from which one can fill in the data fields. [00:22:42] Speaker 00: I know that there are a lot of common letters in the word file. [00:22:45] Speaker 04: This section is discussing the creation of the AUF file, which I believe was previously defined as basically the embodiment of the data file. [00:22:56] Speaker 04: I think that's in the background of the invention, which once again raises the question of it being part of the [00:23:02] Speaker 04: Prior art. [00:23:03] Speaker 04: In the background of the invention... No, I'm sorry. [00:23:16] Speaker 04: Basically in the overview at the beginning of the description of the preferred embodiment in column three, it describes the second component is the data. [00:23:27] Speaker 04: This is beginning at line 14, column three. [00:23:30] Speaker 04: It ties data file to AUF by the following. [00:23:33] Speaker 04: The second main component is the data file 20. [00:23:36] Speaker 04: Through this file, data from a vendor application is seamlessly imported into the application and is used to populate the form fields. [00:23:44] Speaker 04: This file is known as the AUF. [00:23:48] Speaker 04: It contains only data for selected reporting periods, et cetera. [00:23:52] Speaker 00: Okay, so the bottom of column four says you're going to have this data file [00:23:59] Speaker 00: and into the fields in the data file, you can get information a variety of ways, including typing it in. [00:24:06] Speaker 04: Correct. [00:24:07] Speaker 00: So my view is that that doesn't restrict, that doesn't eliminate the suggestion that there is a structure in this data file, right? [00:24:20] Speaker 00: All that is said is you can get information into slots in the structure in a variety of ways. [00:24:27] Speaker 04: It doesn't preclude the possibility that there's structure in the data file, but the term data file as used in the claim, and then as broadly recited in the specification, notwithstanding any of the details that might have been presented in a preferred embodiment, is broadly just a memory holding file. [00:24:47] Speaker 00: So you just referred to data files as broadly recited in the specification, put aside the preferred embodiment. [00:24:56] Speaker 00: What does the first half of that refer to? [00:24:58] Speaker 00: What are you referring to when you say data file as broadly recited in the specification? [00:25:05] Speaker 04: The introductory discussion of it in column three, beginning at line 14, where the concept of a data file is first presented in the disclosure and then is correlated with the AUF. [00:25:22] Speaker 01: I'm confused, though. [00:25:25] Speaker 01: Through this data file, data from the vendor application is seamlessly imported into the program and used to populate the form fields. [00:25:34] Speaker 01: I guess I don't understand how that isn't a file with structure. [00:25:39] Speaker 01: I guess maybe I'm not following what you want me to follow. [00:25:44] Speaker 01: It is a file of data which is going to be used in the system. [00:25:53] Speaker 01: What am I missing that you want me to know about this? [00:25:56] Speaker 01: Or how do you disagree with that? [00:25:58] Speaker 01: I'm confused. [00:26:00] Speaker 04: Well, generally information data that's being stored somewhere in another cell. [00:26:04] Speaker 01: But this isn't just data. [00:26:05] Speaker 01: This is a data file which contains fields, right? [00:26:09] Speaker 01: I mean, that's clear both from column three and the bottom of column four. [00:26:12] Speaker 01: They both talk about the fields. [00:26:15] Speaker 01: It's a data file which contains fields. [00:26:17] Speaker 01: And all of the use throughout the patent of the fields is [00:26:23] Speaker 04: Well, the fields are basically an intangible thing that is defined by programming as being presented on an image. [00:26:30] Speaker 04: So the user sees that field virtually on the image as he's filling it in. [00:26:35] Speaker 04: So ultimately, a data file could only be structured if we're going to imply that it's stored in memory somewhere. [00:26:45] Speaker 04: But the data itself is not structured. [00:26:51] Speaker 04: But if we wanted to construe the data file as having structure, it's still not going to take away from the fact that it doesn't survive ALICE. [00:26:59] Speaker 01: But you better move on to that, because you don't have me on the it doesn't have structure part. [00:27:03] Speaker 01: So to go on to why, even if it has structure, you still win. [00:27:08] Speaker 04: First of all, the lack of structure issue is only related to claim one by the court. [00:27:14] Speaker 04: But we think that any [00:27:19] Speaker 04: Difference that we may have in the correctness of that analysis is remedied by the fact that the proper ALICE analysis of the same four elements, A through D, is undertaken with respect to claim two. [00:27:31] Speaker 04: And if the court agrees that there is no inventive concept added by these four elements, A through D, as thoroughly analyzed by the court in claim two, claim two has those elements, A through D, by virtue of depending from claim one. [00:27:45] Speaker 04: So claim one would suffer from the same [00:27:48] Speaker 04: lack of inventive content. [00:27:49] Speaker 00: Okay, so just to ask the question a different way, why is the court right about Claim 2? [00:27:56] Speaker 00: And now assume that the data file has a structure. [00:27:59] Speaker 00: Defend the Alice conclusion about Claim 2. [00:28:02] Speaker 04: Okay, well, we believe that the court mentions three things on the intangible, which the court does not agree with, but the intangible, everything that's being described functionally in Claim 1 slash Claim 2 in the elements A3D, [00:28:18] Speaker 04: are things that a human could perform without the use of a computer. [00:28:23] Speaker 04: And then the only thing that's added to that is the notion of programs and files. [00:28:29] Speaker 04: Nothing other than conventional computerization of steps that a human could perform. [00:28:34] Speaker 04: A human could replicate a tax form by hand. [00:28:39] Speaker 04: There was a comment by the matrix that this was something they wouldn't do, but the reason they wouldn't do it is not because they're not technologically capable of doing it, [00:28:48] Speaker 04: is that they would be impractical and inefficient, which is one of the many reasons we use computers to do things more efficiently. [00:28:55] Speaker 04: And the storage of data is described in the case law as being the collection, which one of the things that the judge noted, the collection of data and the storage of it is a known conventional act. [00:29:12] Speaker 04: So each of the individual four acts are in the admitted prior art of the background of the invention, [00:29:18] Speaker 04: They represent conventional steps. [00:29:21] Speaker 01: We have cases like DDR and ENFISH that have said that improvements in computer technology or operation of the computer could be the kind of inventive concept that entitles a patent to survive Alice, a software patent. [00:29:36] Speaker 01: And we've got a lot of allegations by them. [00:29:38] Speaker 01: Ease of the form file creation. [00:29:41] Speaker 01: The crux of their argument, it seems to me, is that the form file creation program enables non-software programmers to make form files. [00:29:48] Speaker 01: Then you go over to the data file issue. [00:29:51] Speaker 01: The data file issue, according to them, allows for data fill to occur without needing to get into the proprietary aspects of a vendor application, which they don't like. [00:30:03] Speaker 01: Each of these things may or may not be true, but don't they create fact questions, which at least survive 12b6, possibly not summary judgment, but at least 12b6. [00:30:13] Speaker 04: Initially I would think so, Judge, if all we're looking at is the four corners of the patent, but this patent presents a very interesting situation. [00:30:20] Speaker 04: The things you've just described with respect to a form file creation program that results in a form file, they've actually effectively admitted that that's already part of the prior art, because that's described in the background section of the invention. [00:30:37] Speaker 04: The viewer element, D, is described in the background section of the invention. [00:30:44] Speaker 04: If we accept, and again, if we look at the dates 1995 as being the publication of forms generated by these programs and the publication of standards in 1995, these are all dates seven years before the filing date. [00:30:57] Speaker 04: So if within the four corners we have evidence that what's being told here as background is actually prior art, then none of this, to the extent that it meets on the claim... Okay, where is there... Show me... Let's go through each one, because I don't. [00:31:11] Speaker 01: You're making general allegations. [00:31:13] Speaker 01: Where is... [00:31:14] Speaker 01: The form file creation program, where is that described as in the prior art? [00:31:20] Speaker 04: Column one, beginning at line 22, describes that another version of the software programming tool that generated C. Column one, line 22, another version of the software. [00:31:36] Speaker 01: Okay. [00:31:37] Speaker 04: Produced in 1993, nine years before the filing of the application. [00:31:42] Speaker 04: was a programming tool that generated C and Pascal source code for use within the company's payroll series of products. [00:31:49] Speaker 04: The product consisted of a graphical user interface for tracing text entry boxes over an existing graphic, then exporting that source code required to produce those text boxes. [00:32:02] Speaker 04: If you read that against the very generic recitation of a form file generation in claim one, [00:32:12] Speaker 04: It reads on it. [00:32:13] Speaker 04: So that can't be the source of innovation. [00:32:16] Speaker 04: Further, Your Honor, they describe that, again, part of the prior art. [00:32:22] Speaker 02: I'm not sure I'll follow you, because when we're conducting a test under Alice, we're not making an obviousness inquiry. [00:32:33] Speaker 02: Yes, sir, I agree. [00:32:34] Speaker 02: And it seems like that's what you're saying. [00:32:36] Speaker 02: I mean, you're identifying prior art, but that doesn't help here. [00:32:42] Speaker 02: I think the question that you may be trying to address is whether the invention used well-known conventional technology at the time. [00:32:54] Speaker 04: That is correct. [00:32:54] Speaker 04: And it's our position that we're back now. [00:32:57] Speaker 02: But what you're showing us doesn't say that the invention utilized well-known technology or conventional technology. [00:33:09] Speaker 04: Green Shades takes the position that what's described here would be considered conventional. [00:33:16] Speaker 04: If the court feels that that's a question of fact, that may be your conclusion. [00:33:19] Speaker 02: The Pascal code was conventional, but that's not what we're looking at. [00:33:21] Speaker 02: We're looking at whether the invention is conventional, utilizes conventional technology. [00:33:27] Speaker 02: And what the invention is saying is that we created something beyond what existed in 93. [00:33:34] Speaker 04: And that's what I'm trying to demonstrate is that as claimed in claim one and slash two, they did not create something. [00:33:41] Speaker 04: What they created new over 1993 [00:33:45] Speaker 04: I haven't been able to identify that, frankly, your honor, because the idea of a form generation code, you know, they were mentioning one of the advantages of their new invention was the ability to get away from programmers and use non-programmers. [00:33:57] Speaker 02: But again, you're arguing, you're arguing obviousness or even anticipation, and that's not what we're looking at in this situation. [00:34:07] Speaker 04: I understand. [00:34:09] Speaker 04: I'm referring to it as a prior art, but it's our position that this would be considered conventional. [00:34:14] Speaker 04: The things that are described in this background section are conventional. [00:34:17] Speaker 04: And if they are conventional and they're included in the element, then that would not be a technological advancement that passes ALICE. [00:34:27] Speaker 04: Because ALICE requires more than a conventional use of computer technology. [00:34:32] Speaker 00: If you look at column one, whether in the material that you were just reading from, [00:34:38] Speaker 00: 1993 version or elsewhere. [00:34:42] Speaker 00: Yes. [00:34:42] Speaker 00: Does something in there describe the importation of data into the form? [00:34:54] Speaker 00: The 1993 paragraph talks about having text entry boxes overlaid on an existing graphic, but does it [00:35:08] Speaker 00: talk about the importation of data to fill in those text entry boxes? [00:35:15] Speaker 00: And does the answer to my question matter? [00:35:22] Speaker 04: I don't know that it does, but this would not be the only source of determining whether the importation of data into a data file or into a data box [00:35:32] Speaker 04: is considered to be a conventional computer technique. [00:35:34] Speaker 00: Is there something else in the spec? [00:35:35] Speaker 04: I don't think there isn't a specification that speaks to that, or speaks to it being a new, to the question that was asked of Atrix's counsel earlier. [00:35:44] Speaker 04: I don't think the converse is true either. [00:35:48] Speaker 04: I don't think any of the specification describes that as being a new thing. [00:35:54] Speaker 04: And we do know from case law that the idea of, for example, [00:35:59] Speaker 04: contact extraction case, the idea of pulling data from something and putting it into storage is a known computer technique. [00:36:08] Speaker 04: It's been found to be that as a matter of law. [00:36:11] Speaker 04: And from a computer operations standpoint, the idea of importing this into a data file would seem to be the same thing. [00:36:17] Speaker 04: And so under contact extraction as a matter of law, that particular functionality should be regarded as conventional. [00:36:26] Speaker 04: and therefore not providing the inventive concept. [00:36:32] Speaker 01: Okay, well, I think your time is way past up. [00:36:35] Speaker 01: Let's restore Mr. Lunsitz rebuttal time, please. [00:36:41] Speaker 04: Thank you, ma'am. [00:36:43] Speaker 01: And if you need to, you can go a little beyond the two minutes because we went over with them. [00:36:48] Speaker 03: Judge Serrano, I'd like to address your question about importing text. [00:36:53] Speaker 03: What that is talking about is when a replica form is created of a governmental tax form, the governmental tax form may have text instructions on it, for example. [00:37:04] Speaker 03: So graphics are used to create the form over here, and that text can be captured and then moved over here and put on the form. [00:37:12] Speaker 03: To answer your other question, it doesn't matter. [00:37:15] Speaker 03: It's only one of several alternate ways to make a replica form. [00:37:21] Speaker 03: I want to clear up the chronology of the development here, because I do think we are talking about 102, 103 issues, obviousness issues. [00:37:31] Speaker 03: It is true that the form file creation program was used by Atrix before the invention date, November 28, 1995, and that they had independent form files. [00:37:43] Speaker 03: But there's a piece, column one, line 55, that says, [00:37:50] Speaker 03: The critical piece of early AFD development was the creation of an interpreter, which was a small piece of source code that could be implemented in a program in which it would automatically read, present on screen, and process an AFD file. [00:38:06] Speaker 03: What this means is that the host application, which is a monolithic software at the time Matrix had their payroll series, will have a file interpreter, a piece of source code written into it, and it could then [00:38:20] Speaker 03: get to a form file and erect a form. [00:38:23] Speaker 03: But the rest of the transmission of the data was in the normal way that a monolithic software would transmit data. [00:38:31] Speaker 03: In other words, it was by commands in the source code to go get an item of data and put it somewhere else. [00:38:36] Speaker 03: It was not the invention after November 28, 1995. [00:38:41] Speaker 03: Not the same thing. [00:38:42] Speaker 03: So what you see in column two, a version of the AFD runtime module. [00:38:47] Speaker 03: This is at line nine. [00:38:49] Speaker 03: A version of the AFD runtime module was created, which was a standalone application. [00:38:54] Speaker 03: That's the creation of the form viewer after 95. [00:38:58] Speaker 03: And then the data file also after 95. [00:39:00] Speaker 03: And what's important is the combination of elements. [00:39:08] Speaker 01: Any other questions? [00:39:08] Speaker 01: OK. [00:39:08] Speaker 01: I thank both counsel for their arguments and the cases taken under submission. [00:39:14] Speaker 03: All right.