[00:00:00] Speaker 00:
We have five cases on the calendar this morning, three patent cases, two of them related and coming from a district court, third coming from the PTO, and we have two government employee cases, one of which is being submitted on the briefs and therefore will not be argued.

[00:00:28] Speaker 00:
The first case

[00:00:30] Speaker 00:
is Apastry versus Amazon, 2015-2077, Mr. Sonny.

[00:00:39] Speaker 00:
Yes, Your Honor.

[00:00:42] Speaker 03:
Good morning.

[00:00:43] Speaker 03:
May it please the court, Tony Simon from St.

[00:00:45] Speaker 03:
Louis, and I have with me in the courtroom, Kevin Har, who's the CEO of Apastry.

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Your Honor is affirming the district court in this case.

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would be for the first time hold that a faster, more reliable computer system that's more efficient than the prior art is not patentable.

[00:01:02] Speaker 03:
That holding would expand the 101 abstract analysis from abstract ideas to new computers, a machine.

[00:01:12] Speaker 04:
When you say new computers or machine, you don't actually mean that these claims require any kind of actual new computer.

[00:01:21] Speaker 04:
It's the configuration of generic computers that's new.

[00:01:24] Speaker 04:
That's right, Your Honor.

[00:01:25] Speaker 03:
Old hardware, new software.

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And that's why I think it would also, if it's not reversed, if this Court affirmed, call into question the recent cases that expressly hold that software that improves computer functionality are patent eligible.

[00:01:40] Speaker 03:
DDR, Enfish, Bascom, Macro.

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This Court has found that if you have old hardware and you have new functionality implemented through software that was expressly said to be not abstract in Enfish,

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A little bit of background about Apustree.

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Apustree is a technology company founded in 2001.

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Apustree was specifically formed as it explains it.

[00:02:04] Speaker 01:
I just want to question you about what you just said about Enfish, for example.

[00:02:08] Speaker 01:
I think you said that that case found that when you have software, it's not abstract, software that improves the technology.

[00:02:15] Speaker 01:
Isn't that case holding that when you have claims that are directed to

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The question is whether the claims are directed to an abstract idea.

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Do you want to talk about whether your claims are directed to an abstract idea and why or why not?

[00:02:28] Speaker 03:
Yes, Your Honor.

[00:02:29] Speaker 03:
I agree with you.

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It's not just software directed to something new.

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It's software that's claimed.

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And in the claims, they claim new functionality to an old system.

[00:02:39] Speaker 00:
Mr. Simon, one of your criticisms of the district court was that it didn't focus on the claims.

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Well, I didn't want to make that same mistake, so I looked

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in your brief for the claims.

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I didn't find them there.

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Did I miss something?

[00:02:55] Speaker 03:
No, Your Honor.

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They are there.

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Do you have a listing of the claims?

[00:03:00] Speaker 03:
Your Honor, I don't know if I have a verbatim listing of the claims.

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We did discuss in the brief what the claims are made up of, which is a request handler, task handler, process handler.

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And we had a discussion, so I apologize if that was an oversight.

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I should have put that in the brief.

[00:03:16] Speaker 01:
That helps.

[00:03:17] Speaker 01:
Along those same lines,

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Do you, anywhere in your brief, explain why some claims might be more eligible over others?

[00:03:28] Speaker 01:
It seems to me that they're either eligible or they're not, and you haven't distinguished between different claims in this appeal.

[00:03:38] Speaker 03:
We did not below get the opportunity.

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The court decided to use representative claims.

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Amazon was agnostic to it.

[00:03:46] Speaker 03:
What I would say here is the reason we argued it the way we did is if our independent claims that specifically talk about the new functionality of the computer and how it creates a hive engine and a fabric, there's plenty of inventive and new functionality there.

[00:04:05] Speaker 03:
So I would agree with you that if the independent claims go, I do think some of the dependent claims have additional elements that are also inventive.

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But I can go through the claim and show you exactly what was invented, even for the independent claims.

[00:04:20] Speaker 04:
Wait, so let me make sure I'm on the right case because you've got two.

[00:04:24] Speaker 04:
The 746 is that issue in this case, right?

[00:04:27] Speaker 04:
Yes, sir.

[00:04:28] Speaker 04:
And so claim one, the independent claim.

[00:04:38] Speaker 02:
Yes, Your Honor.

[00:04:39] Speaker 04:
So am I hearing you right?

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Your view is basically that if claim one goes down, then you haven't argued the other ones are separately eligible.

[00:04:49] Speaker 04:
They may have different functionality, but if we find that claim one is directed to an abstract idea and doesn't meet step two of Alice's test, you didn't argue to the district court that there are different claims that are separately eligible.

[00:05:03] Speaker 03:
No, we did argue that.

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And I'm not saying if claim one goes down.

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What I'm saying is the reason we didn't

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tried to put all the claims in the brief was in the interest of space and given that we thought we had some, that the arguments that it's not an abstract idea come across even applying them just to the claims that we did discuss.

[00:05:21] Speaker 01:
Let me try asking you this.

[00:05:23] Speaker 01:
I don't see anything where on appeal you've asked us to look at, for example, claim one of the 746 patent any differently than claim 50 of the 209 patent or any other claims that are at issue before us.

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And so

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I don't think that argument is before us, but please tell me if I'm wrong.

[00:05:42] Speaker 03:
Yes, Your Honor.

[00:05:42] Speaker 03:
I think that argument is in front of you.

[00:05:44] Speaker 01:
You think you've argued these claims separately?

[00:05:47] Speaker 03:
Well, I've argued them separately because I've appealed each one of the decisions.

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My point is because they all contain request handler, process handler, task handler, that the same analysis applies to each one of those claims.

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That's what I'm saying.

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So if you were to find, for example, that the whole goal of the invention here was to take commodity computers and change the functionality of them so they can work together in a specific way to solve massive computing problems and replace mainframes and those kind of things.

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But commodity computers break down.

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And so you needed fault tolerance.

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So you needed to program each one of the computers in a way.

[00:06:26] Speaker 03:
I'm sorry, I'm getting life headed, Your Honor.

[00:06:28] Speaker 03:
I apologize.

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that calls for that... May I sit down?

[00:06:33] Speaker 03:
I'm sorry.

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This never happened to me before.

[00:06:36] Speaker 03:
I apologize.

[00:06:39] Speaker 00:
You can continue from where you are.

[00:06:42] Speaker 00:
I'll take a rest if you need to.

[00:06:44] Speaker 03:
Thank you.

[00:06:45] Speaker 03:
I'll just continue.

[00:06:47] Speaker 03:
So the whole purpose of the process handler, the task handler, the request handler was to do exactly that, was to

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allow the computers to all know, pass state information to each other so they all know what's going on, so that if one computer goes down... I'm sorry, I've got to sit down again, I apologize.

[00:07:10] Speaker 03:
I don't know what's going on.

[00:07:16] Speaker 03:
Okay.

[00:07:17] Speaker 03:
So to answer your question, I think we did argue them all because we argued that the request handler wasn't each.

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and the functionality of the claims.

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And this reads right on Enfish because we improve the functionality of the claims.

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I'm uncomfortable sitting down arguing.

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We improve the functionality of a computer in the claims, just like in Enfish.

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So therefore, it's not an abstract idea.

[00:07:41] Speaker 03:
The abstract idea test is what are the claims directed to?

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And I agree with you, Judge Stahl.

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You have to have the actual functionality claimed in the claims.

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You can't just say,

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make a better computer system by networking a bunch of computers together and dividing up the tasks.

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That's not what was done here.

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The claims themselves have sufficient detail to talk about how the different components operate.

[00:08:04] Speaker 04:
Can we talk about that because this is where I think your argument, I have some difficulty with it.

[00:08:10] Speaker 04:
If we're looking at claim one of the 746, it doesn't seem to have much detail.

[00:08:15] Speaker 04:
It has

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A plurality of networked Hive engines.

[00:08:20] Speaker 04:
Hive engines, I take it, are computers.

[00:08:25] Speaker 03:
Correct.

[00:08:26] Speaker 04:
Hive engine isn't some new form of computer.

[00:08:31] Speaker 04:
It's a computer, right?

[00:08:32] Speaker 03:
That's correct.

[00:08:33] Speaker 04:
A plurality of networked Hive engines is a bunch of computers networked together.

[00:08:38] Speaker 00:
Correct.

[00:08:40] Speaker 04:
One of them receives a service request, which is just a request to do something.

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process something, right?

[00:08:48] Speaker 03:
Yes.

[00:08:50] Speaker 03:
Your Honor, if I may, it's not one of the computers.

[00:08:54] Speaker 03:
Every computer is programmed so that it has the request handler, task handler, process handler in it, as shown by the dependent claims, which by differentiation, were they specifically claimed, for example... I don't want to talk about the dependent claim.

[00:09:07] Speaker 04:
I want to talk about the independent claim one, because

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I don't see much in here.

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Basically, I'm looking at this in comparison to NFISH and DDR.

[00:09:18] Speaker 04:
And most specifically, NFISH, because I think you're trying to argue this as a step one case.

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And NFISH was very specific.

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It had a specific algorithm that created a new database.

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It was a means plus function claim.

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It didn't say, here are these general ways of doing things.

[00:09:34] Speaker 04:
Let's do it on a computer, which is what I see here.

[00:09:39] Speaker 04:
Let's have this idea of,

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dividing up tasks to be done by different entities, and then bringing it all back together.

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And if one person's not busy or one computer's not busy, it lets somebody know and can take more work and things like that.

[00:09:56] Speaker 04:
I mean, it seems very abstract to me.

[00:09:58] Speaker 03:
Well, here's the way I would answer, Your Honor.

[00:10:00] Speaker 03:
It's a distinction between a platform that ties these commodity computers together and allows them to receive an application software.

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All the other cases, including

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It was a specific application software running on a computer.

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This instead is a platform that, as it's discussed in the specification, allows computer programmers to load onto our system their program.

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And then our system has the overlay that will allow multiple computers to carry it out.

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May I give an example?

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Federal Express.

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And this is in the complaint.

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They developed an algorithm so that when you load up the plane, they had to figure out how much

[00:10:40] Speaker 03:
how much time it was going to take and what the route was and what package each truck should go on.

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They tried to use mainframe computers, old hardware.

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Their program, their application software, didn't work, took six hours.

[00:10:51] Speaker 03:
By the time the plane landed, they didn't have it.

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They used our system.

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It ran in less than an hour.

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And that's what they use today from 12 years ago.

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That's what they use today.

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So the point was when my client went to test the system, FedEx,

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unplug some of the computers just to see if it would still work.

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And that's the key.

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The key is you're harnessing the processing power of multiple computers, but because you're exchanging state information, which is in claim one of all the patents, you're exchanging state information, they all know what's going on.

[00:11:26] Speaker 03:
I mean, what the inventors were thinking of at this time, the reason they use the word Hive engine is the Hive survives even if any worker B dies.

[00:11:33] Speaker 03:
So even if one computer is unplugged,

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So what's not abstract is a new system, a new platform on which you can run computer applications.

[00:11:42] Speaker 03:
That's not abstract.

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It's certainly not command and control.

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These computers, it's more of an egalitarian system.

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All these computers have the same functionality and anyone can step up and handle what the other one's doing.

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That's what's described in the specification.

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So I agree with you that claim one appears, like there's not much there, but when you read what a Hive engine is, what a request handler does, what a process handler does,

[00:12:05] Speaker 03:
And even though we didn't argue the dependent claims, the dependent claims do inform the scope of the independent claim.

[00:12:13] Speaker 03:
So what I'm saying is, if you look at the request hander configured to receive this, it is a bunch of generic computers doing this, but they couldn't do it before.

[00:12:23] Speaker 03:
In 2002, this couldn't happen.

[00:12:26] Speaker 00:
Of course, the law has changed in 2002.

[00:12:32] Speaker 03:
The law has changed?

[00:12:33] Speaker 00:
The law has changed in terms of the eligibility of claims that sound like abstract ideas.

[00:12:43] Speaker 03:
I agree with you, Your Honor.

[00:12:44] Speaker 03:
But all the cases that talk about abstract ideas talk about a business concept or something that's well known, an economic principle, and doing it on a generic computer or doing it on the internet.

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That's the Mayo and the Ultramershal case.

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So here, we don't have some prior art

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business method.

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This isn't a business method.

[00:13:03] Speaker 03:
It claims a plurality of network computers.

[00:13:07] Speaker 03:
So you have to have two or more computers.

[00:13:08] Speaker 03:
That's where we start.

[00:13:10] Speaker 03:
The computers, as they suggest, Amazon suggests, are commodity computers.

[00:13:14] Speaker 03:
That provides the benefit of scalability and cost-effectiveness.

[00:13:18] Speaker 01:
I'll interrupt you for a minute.

[00:13:20] Speaker 01:
Your claims don't say what kind of computers they are, because it's not clear.

[00:13:23] Speaker 01:
The Hive Engine could be a supercomputer or it could be a PC, right?

[00:13:27] Speaker 01:
I mean, it just says a Hive Engine.

[00:13:28] Speaker 03:
Well, this is correct, Your Honor, but

[00:13:31] Speaker 03:
The point is, if you took any one of those computers and networked them together, say it was a supercomputer, by giving them the functionality that didn't exist before so they all know what's going on with each other and any one of them can step up and finish a task, whatever the Hive engine is, it will work because it has to be imbued with that new functionality that didn't exist before.

[00:13:54] Speaker 01:
Columns two and three of the patent talk about things that did exist before and in your

[00:14:01] Speaker 01:
briefing, you talk about the novelty aspects or things that aren't conventional and I think those are what the idea of returning state information and the idea of having three tiers and also I think having self-organization.

[00:14:20] Speaker 01:
Where is that found in the claims, those concepts?

[00:14:23] Speaker 01:
I know where the state information is but what about the other two?

[00:14:28] Speaker 03:
Okay, the other two

[00:14:29] Speaker 03:
I'm sorry, the other two where you said self-organization?

[00:14:33] Speaker 03:
Self-organization.

[00:14:35] Speaker 03:
OK.

[00:14:36] Speaker 03:
Your Honor, the state information is what provides them with the self-organization.

[00:14:41] Speaker 03:
So every computer, when it receives state information, it knows what all the other computers are doing.

[00:14:47] Speaker 03:
And so it can volunteer and say, and some of the dependent claims expand on this.

[00:14:52] Speaker 03:
And again, I'm not arguing that those elements are in claim one.

[00:14:55] Speaker 03:
My point is claim one is broader than that.

[00:14:58] Speaker 03:
But what it would do is it would say, for example, a particular computer would say, hey, I need help doing this task.

[00:15:05] Speaker 03:
And five computers would say, would know that because it needs help doing that task, because they're all communicating together in a network.

[00:15:12] Speaker 03:
And they could all self-organize and volunteer to help with that process.

[00:15:17] Speaker 00:
Mr. Simon, you've just about used up your rebuttal time.

[00:15:20] Speaker 00:
But we'll give you a couple of minutes and hear from opposing counsel now.

[00:15:24] Speaker 03:
Thank you, Your Honor.

[00:15:25] Speaker 00:
Mr. Fish.

[00:15:31] Speaker 02:
Good morning.

[00:15:33] Speaker 02:
May it please the court.

[00:15:35] Speaker 02:
Apostry's claims are filled with results for achieving.

[00:15:39] Speaker 02:
Apostry's claims are filled with results but are empty on ways to achieve those results.

[00:15:47] Speaker 02:
Apostry's claims are loud on goals but silent on how to achieve those goals.

[00:15:53] Speaker 04:
I don't really need the summary.

[00:15:55] Speaker 04:
Can you just get to the case law here?

[00:15:57] Speaker 04:
I mean, these 101 cases are very

[00:15:59] Speaker 04:
fact-specific, and I think we've developed some body of case all that's trying to set out boundaries.

[00:16:04] Speaker 04:
I'm having a hard time putting this one in the set of things.

[00:16:08] Speaker 04:
To me, it doesn't seem like it falls under the end fish step one thing perfectly, but it might, even though it's using a bunch of conventional hardware, be an inventive way to group this conventional hardware together that might seem more like Bascom.

[00:16:26] Speaker 04:
Tell me why this isn't Bascom.

[00:16:28] Speaker 02:
Bascom, Your Honor, as you know, was dealing exactly with that, taking conventional pieces of hardware and then applying them in unique and different ways.

[00:16:35] Speaker 02:
That doesn't exist here.

[00:16:37] Speaker 02:
There is no teaching at all that there is anything done out of the ordinary.

[00:16:41] Speaker 04:
What we've got in the claims, as Your Honor has identified... Well, see, that's the problem I have, is it does seem to me that this notion of linking together a bunch of different computers and kind of distributing the task processing

[00:16:55] Speaker 04:
is something that had never been done before and is a novel use of generic computers?

[00:17:01] Speaker 02:
Well, Your Honor, their own specification identifies that distributed computing, which is the idea of separating the tasks into its constituent parts, predates their environment.

[00:17:10] Speaker 02:
In fact, as we know from the specification as well, that this notion of distributed processing dates back to even before computers undertook distributed processing.

[00:17:20] Speaker 02:
This is something that column one of the specification

[00:17:23] Speaker 02:
itself refers to as using armies of individuals to undertake.

[00:17:27] Speaker 02:
Those armies used to have the titles of systems analysts.

[00:17:31] Speaker 02:
We don't have those folks anymore.

[00:17:33] Speaker 02:
They come from an era where computers cost as much as a house and sometimes were twice as big.

[00:17:38] Speaker 02:
In that environment, it was very important to be able to take that finite resource, because that's what we're talking about, a finite resource, and then establish a methodology.

[00:17:49] Speaker 04:
I get that.

[00:17:51] Speaker 04:
That all makes sense to me.

[00:17:52] Speaker 04:
Isn't the novel thing here is that they're programmed in a way to distribute different parts of the same task and to instantaneously update status so that they can jump in and help out another computer and the like.

[00:18:07] Speaker 04:
The problem may be that there's just not enough in the claims, but the idea seems to me somewhat novel.

[00:18:14] Speaker 02:
You're right, Your Honor.

[00:18:15] Speaker 02:
The disconnect here is with the

[00:18:17] Speaker 02:
the inquiry of the claims, which, as Your Honor identified very early on, is what we're here to evaluate, the claim language itself.

[00:18:23] Speaker 02:
These notions aren't there.

[00:18:25] Speaker 02:
Now, indeed, the claims do have technical language in them.

[00:18:27] Speaker 02:
They're dressed up in the argot of innovation.

[00:18:30] Speaker 02:
But that language, when we really deconstruct what it's talking about, defines only what a computer or a network does.

[00:18:38] Speaker 02:
It doesn't define the way or the methodology or the how to do what Your Honor has just described.

[00:18:43] Speaker 02:
There isn't any of that present in the claim language.

[00:18:46] Speaker 02:
Your Honor heard that from opposing counsel who couldn't answer that question because he couldn't because it's not there.

[00:18:52] Speaker 02:
That talking about these concepts of transferring data and state information, that's what a computer does.

[00:18:57] Speaker 02:
That's what a general purpose computer is designed to do.

[00:19:00] Speaker 02:
Take in information on a request, process that information.

[00:19:05] Speaker 04:
The purpose of a general... Let me ask you this, and this is something I've been struggling with.

[00:19:08] Speaker 04:
I mean, it pertains to this case, but it's kind of a more general point.

[00:19:12] Speaker 04:
If that kind of very specificity is there,

[00:19:15] Speaker 04:
and actually shows an actual concrete invention, that tends to satisfy infest step one.

[00:19:23] Speaker 04:
What's the universe then for these software claims where it still doesn't satisfy step one, but it could satisfy the

[00:19:31] Speaker 04:
something more in step two.

[00:19:33] Speaker 04:
What's your view on that?

[00:19:35] Speaker 02:
I want to clarify your honor's question, if I may.

[00:19:37] Speaker 02:
How does this fit into the ENFISH rubric?

[00:19:39] Speaker 02:
Is that the ultimate question?

[00:19:40] Speaker 04:
Well, I'm struggling to find.

[00:19:42] Speaker 04:
I think you're saying, and certainly I'm saying, if these claims perhaps have been more specific and had more detail about the specific steps and things like that, they might satisfy ENFISH step one, which means we don't get to step two.

[00:19:56] Speaker 04:
But in what universe of cases

[00:19:58] Speaker 04:
Do we not satisfy step one, but do satisfy step two?

[00:20:04] Speaker 04:
In these kind of software cases, what we're turning on is a pending of lack of specificity or not.

[00:20:10] Speaker 02:
Well, I think, again, we're still with the abstract idea because there's nothing claimed outside of the claim language other than computers and a network.

[00:20:17] Speaker 04:
Sure, but that's the point of step two, right?

[00:20:19] Speaker 04:
That even though the patents are directed to an abstract idea, there's something inventive that makes them patent eligible.

[00:20:27] Speaker 02:
Indeed, Your Honor.

[00:20:28] Speaker 02:
Just to finish out the point on that, of course, the claim language itself doesn't provide anything that meets that inventive step conundrum, in part because we can look at the specification.

[00:20:40] Speaker 02:
We don't even need to step outside of the specification.

[00:20:42] Speaker 01:
What about the idea of the responding with state information, I guess updating the status of the task processing?

[00:20:51] Speaker 01:
I hear what you're saying, but this is a 12b6 decision.

[00:20:56] Speaker 01:
And you've got a specification that doesn't admit that that was in the prior.

[00:21:01] Speaker 01:
And you've got, at least in one of the appeals, you've got some expert declarations, an amended complaint.

[00:21:06] Speaker 01:
I mean, how do you come to say that that's not conventional?

[00:21:12] Speaker 01:
How do you deal with that?

[00:21:13] Speaker 02:
Well, I look at the BuySafe case, for example, your honor, because in that instance, what we saw the court say is that these notions of what a computer does

[00:21:21] Speaker 02:
transmitting information, collecting information.

[00:21:23] Speaker 02:
State information is part of that information of processing.

[00:21:27] Speaker 02:
That's how a computer moves from one step to another.

[00:21:29] Speaker 02:
BISAPE tells us that that itself is not even arguably inventive.

[00:21:33] Speaker 02:
It can't move into that territory.

[00:21:35] Speaker 02:
That this, I'm sorry, Your Honor, go ahead.

[00:21:38] Speaker 01:
I was just going to ask you, do you think it could be part of the abstract idea itself?

[00:21:43] Speaker 01:
If the abstract idea is the idea of command, could responding back and saying, hey, this is how much I've done so far or I'm done,

[00:21:51] Speaker 01:
Could that be part of the abstract idea itself?

[00:21:53] Speaker 02:
Certainly, it's one of the things the lower courts looked at as well, Your Honor, where they understood that the command and control is a two-way street, that the orders flow down, but then something has to pass back up, which is the information itself.

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That would be the status.

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Command and control can't function without that return information.

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And the computer's the same way, that a computer simply changes states.

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It's a binary device, as we all know, zeros and ones.

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It changes states to indicate that it's undertaken or concluded a portion or all of a processing job or any discrete task that it undertakes.

[00:22:28] Speaker 02:
So that cannot be the basis upon which there's an inventive step here, because all it's really then doing is claiming the computer itself.

[00:22:37] Speaker 02:
That's all that it's defining as its characteristic.

[00:22:39] Speaker 00:
What it does is saying that all software, which is contrary precedent, is abstract and not patent eligible.

[00:22:48] Speaker 02:
Certainly not, your honor.

[00:22:50] Speaker 02:
And that's not the test that we're asking this court to apply here either.

[00:22:54] Speaker 02:
What we're asking this court to do is simply take the existing jurisprudence that it has, say for example, Infinity Labs versus Amazon, or another case very similar, Electric Power.

[00:23:07] Speaker 02:
In both those cases, we have a similar fact set to this, where there is these very abstract ideas.

[00:23:15] Speaker 02:
with goals, with ideals, with results, but nothing in those claims in either of those two cases I've mentioned, Affinity Labs versus Amazon or Electric Power, is there any indication that there is a way or a method or a how to achieve those results?

[00:23:33] Speaker 02:
And that's the exact situation we have here.

[00:23:35] Speaker 01:
I think the Electric Power case, for example, that's a case where it was, let's collect more information, let's analyze more information.

[00:23:45] Speaker 01:
It was an idea.

[00:23:46] Speaker 01:
One could argue that's different than the situation you have here, where it's the idea of using this computer in a certain way and having them perform different tasks and be organized in a certain way that we hear as being argued by your adversaries that it's resulting in a network that's improved, a technological improvement to the network itself.

[00:24:08] Speaker 01:
Doesn't that distinguish electric power?

[00:24:10] Speaker 02:
Well, I think we're back to the same story of that's a result.

[00:24:13] Speaker 02:
I understand the factual distinction of collecting data versus processing data.

[00:24:18] Speaker 02:
But those are two things that the computers just automatically do.

[00:24:22] Speaker 02:
We're talking about general purpose computers across a general purpose network.

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That's what the claims identify.

[00:24:27] Speaker 02:
And in that environment, passing of state information is just what happens.

[00:24:32] Speaker 02:
The passing of information related to

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The processing is what happens.

[00:24:37] Speaker 02:
It's why computers are networked together to be able to speak with one another.

[00:24:44] Speaker 02:
Judge Hughes, I wanted to make sure that I fully answered your question on Bascom.

[00:24:48] Speaker 02:
I just would like to clarify if you've got any follow up on that.

[00:24:54] Speaker 04:
No, I'm fine.

[00:24:56] Speaker 02:
Thank you, sir.

[00:24:58] Speaker 02:
One other thought I'd like to leave us with here as well is the notion of imbalance.

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The imbalance that exists here between what is claimed and what the monopoly seeks to cover.

[00:25:13] Speaker 02:
This is the bargain for exchange that we hear all the time, the sharing of technical information in exchange for a monopoly on it.

[00:25:20] Speaker 02:
These claims speak to a very, very small, if any, technical innovation.

[00:25:25] Speaker 02:
But what they're trying to capture here is an idea that thousands of people are working on every day, which is distributed computing.

[00:25:33] Speaker 02:
So they put this small little sliver of information in and what they wish to take out of it is the totality of distributed computing, something that's being- That's something that goes to issues of 102 and 103 and not necessarily eligibility.

[00:25:48] Speaker 01:
I mean, here we're just looking for whether the claims are directed to an abstract idea.

[00:25:53] Speaker 02:
Indeed, Your Honor.

[00:25:54] Speaker 02:
I added a spice to really inform a little bit of what I believe Alice is even speaking to.

[00:25:59] Speaker 02:
The idea that someone is putting something very small in

[00:26:03] Speaker 02:
to the pool and getting something very large out.

[00:26:06] Speaker 02:
One way to think of it would also be a construct of preemption.

[00:26:10] Speaker 02:
That what we're really seeing here is that these little claims with these little pieces of innovation allow for a very large footprint of technology that is unearned by these applicants.

[00:26:26] Speaker 02:
I'm happy to answer any further questions.

[00:26:28] Speaker 00:
Well, you'll have another chance, Mr. Fish, with slightly different claims.

[00:26:32] Speaker 00:
So thank you very much.

[00:26:34] Speaker 00:
Thank you, Your Honor.

[00:26:36] Speaker 00:
Mr. Simon, we'll give you two minutes.

[00:26:38] Speaker 03:
Thank you, Your Honor.

[00:26:39] Speaker 03:
Thank you for accommodating me.

[00:26:41] Speaker 03:
I didn't eat breakfast this morning.

[00:26:42] Speaker 03:
I think I got a little lightheaded.

[00:26:43] Speaker 03:
I'd like to first speak to the inventive step.

[00:26:46] Speaker 03:
With respect to the inventive step, this is a 12b6 judgment on the pleadings.

[00:26:50] Speaker 03:
We have evidence in the record that Amazon engineers in 2004 met with my client, 10 Amazon engineers and their person in charge of system architecture,

[00:27:03] Speaker 03:
for a period over six months at several meetings and asked detailed questions about how the system covered by these patents operated.

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If in 2002 it was conventional and routine as the district court found, why in 2004 did the Amazon engineers not understand it?

[00:27:16] Speaker 03:
Secondly, my client received two awards for its system that covers this patent.

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The America Business Award for Most Innovative Company Computer Software and Services, this is their only product,

[00:27:29] Speaker 03:
And the Software and Information Industry Association Cody Awards, it was a finalist for Outstanding Vision.

[00:27:34] Speaker 03:
Those were both in 2009 for this product.

[00:27:37] Speaker 03:
So is it inventive?

[00:27:39] Speaker 03:
Certainly it's inventive.

[00:27:40] Speaker 03:
I'd like to get to that with respect to the claims.

[00:27:43] Speaker 03:
The claims need to be read in line with the specification.

[00:27:46] Speaker 03:
When the claims talk about a request handler, a process handler, and even though they're short, you need to go to the specification and the written description and understand what those claim terms mean.

[00:27:56] Speaker 03:
When you do that,

[00:27:59] Speaker 03:
That's what enables these claims and that's what gives the functionality.

[00:28:04] Speaker 03:
The last thing is we talk about the exchange of what did we disclose and what is the preemption or monopoly we get.

[00:28:12] Speaker 03:
We disclose the specific distributed computer system.

[00:28:16] Speaker 03:
In claim construction, Amazon admitted these things claim a specific implementation of a computer system with this specific functionality.

[00:28:27] Speaker 03:
And that's all that the patent covers, is this particular thing.

[00:28:31] Speaker 03:
And what I would say is, when you read the claims in line of specification, and the statements in the specification, and the statements in the complaint, there's no evidence of record that any of this was ever done before.

[00:28:43] Speaker 03:
Nothing.

[00:28:45] Speaker 03:
I see my time is up.

[00:28:46] Speaker 00:
Thank you, Mr. Simon.

[00:28:48] Speaker 00:
We'll take the case under advisement.

[00:28:50] Speaker 00:
And we will then get to the next case, and you can