[00:00:00] Speaker 00: claims, 2016-2417. [00:00:01] Speaker 00: Yes, Your Honor. [00:00:05] Speaker 04: Thank you. [00:00:07] Speaker 04: The clock has not restarted. [00:00:13] Speaker 04: Thank you. [00:00:16] Speaker 04: I'd like to kind of refocus the argument here. [00:00:20] Speaker 04: As you say, I'm not trying to be repetitive. [00:00:23] Speaker 04: What the Alice inquiry gets into is, do you have an abstract idea? [00:00:26] Speaker 04: And if you do, you have to have something more. [00:00:28] Speaker 04: And I know there's disputes. [00:00:30] Speaker 04: in the cases that talk about is this something more, is it inventive? [00:00:34] Speaker 04: Is that a 102-103 analysis? [00:00:37] Speaker 04: Certainly if it is, in this case, because of what happened in the first case, I submitted a declaration of an expert explaining the improvements in the technology to the district court. [00:00:49] Speaker 04: So we did that. [00:00:51] Speaker 04: We went through in the complaint and did a 102-103 analysis because at the time we weren't sure what this inventive concept means. [00:00:58] Speaker 04: I think if you go back and you look at mail, what the Supreme Court said was, if you have an abstract idea, doing it on a generic computer because of its ubiquity isn't enough to make it eligible. [00:01:11] Speaker 04: And in the Ultramershal case, when it went back up, it was reversed. [00:01:14] Speaker 04: And then the second time, when the holding of this court was, yes, it's an abstract idea, you do it on the internet. [00:01:24] Speaker 04: Again, and the basis for that, and the Supreme Court denies Sershari. [00:01:29] Speaker 04: The basis for that is, are you trying to claim the abstract idea? [00:01:34] Speaker 04: I would analogize it this way. [00:01:36] Speaker 04: Even if generic computers weren't in the prior art, if the only way to practice the abstract idea is on a computer, you're essentially giving a monopoly, I'm sorry, you're preempting the use of the abstract idea. [00:01:49] Speaker 04: That's the only way I can reconcile those cases. [00:01:52] Speaker 04: So whatever inventive concept is here, if inventive concept is 102, 103 analysis, because Mayo does say, [00:01:59] Speaker 04: They overlap a bit. [00:02:02] Speaker 04: In this case, I have an expert who, in addition to the statements in the patent, explained to the court the novelty. [00:02:10] Speaker 04: It's not anticipated, the non-obviousness. [00:02:12] Speaker 04: Explained that he was in the industry at the time, and there was nothing that existed at the time anything like this. [00:02:19] Speaker 04: I mean, again, this company was created because there were companies out there. [00:02:23] Speaker 03: Here's my problem with that. [00:02:24] Speaker 03: I mean, we're talking about step two now, so we're assuming this is directed [00:02:28] Speaker 03: to an abstract idea. [00:02:28] Speaker 03: I know you disagree with it. [00:02:32] Speaker 03: And this is where I have a really hard time finding the line. [00:02:35] Speaker 03: If you have an abstract idea and you do it on a computer, it's not eligible. [00:02:41] Speaker 03: You have an abstract idea that involves multiple computers because that's the whole point. [00:02:48] Speaker 03: But how does that make it eligible? [00:02:50] Speaker 03: I mean, a lot of these cases we've had where there's abstract ideas done on a computer we've found ineligible, [00:02:56] Speaker 03: were maybe the first time anybody ever tried to put that abstract idea on the computer. [00:03:01] Speaker 03: Maybe it was really useful because without computing speed and modern computers, you couldn't do it by paper or hand. [00:03:09] Speaker 03: You could think of it, but you couldn't do it. [00:03:11] Speaker 03: Why isn't this case exactly the same thing? [00:03:14] Speaker 03: It's an abstract idea of doing a bunch of different tasks in a really efficient way. [00:03:20] Speaker 03: Maybe you couldn't do it with a mainframe or you couldn't do it with one computer, but you put a bunch of computers together and you can now do it by the virtue of having a bunch of computing power. [00:03:32] Speaker 04: The way I would answer that, Judge Hughes, is it's not just putting a bunch of computers together. [00:03:37] Speaker 04: It's the fabric, it's the programming that my client invented that's implemented on all those computers. [00:03:43] Speaker 03: See, but this again, I mean, I don't want to beat a dead horse. [00:03:49] Speaker 03: This is where I think that we have a problem, and maybe the problem is this didn't used to be required, but maybe now has to be required. [00:03:56] Speaker 03: You say the programming, but claim one, I know we're on to the next case, but I haven't, and these patents are, none of them are all that much different. [00:04:04] Speaker 03: They don't have any specifics about the programming. [00:04:07] Speaker 03: At least to me, that's what gets you out of the infish world, which is a means plus function claim with a very specific algorithm. [00:04:14] Speaker 03: You have task handlers, system handlers, [00:04:17] Speaker 03: very kind of generic ideas, I think. [00:04:20] Speaker 04: Well, Your Honor, you're talking about the claims specifically? [00:04:23] Speaker 03: Yeah. [00:04:23] Speaker 04: Not the disclosure. [00:04:24] Speaker 04: OK. [00:04:25] Speaker 04: The claims, and in this case, for example, the 267 pet, that's at an APPX 0. [00:04:32] Speaker 04: The claims are at APPX 112. [00:04:35] Speaker 04: OK. [00:04:37] Speaker 04: First, I disagree with, and the record on a 12-by-6 motion says, [00:04:43] Speaker 04: task handlers, request handlers, and process handler functionality are not generic and weren't there. [00:04:49] Speaker 01: Can you raise that in the declaration where it says it's not generic? [00:04:53] Speaker 01: I mean, I see where you have, for example, many paragraphs that say SETI at home does not have, and then unless you list all the elements of each of the claims in separate paragraphs. [00:05:07] Speaker 01: Where is there a specific concept you're talking about? [00:05:09] Speaker 04: If you look at the complaint, [00:05:14] Speaker 04: And I would take you to page APPX129 is one example. [00:05:26] Speaker 04: And the, I'm sorry, that's Prior Art Systems. [00:05:33] Speaker 04: APPX127. [00:05:39] Speaker 04: Paragraph 47, no claim of the asserted patent utilizes a generic computer to apply a fundamental economic concept or conventional business practice. [00:05:47] Speaker 04: No claim of the patent can be performed by humans. [00:05:50] Speaker 04: The subject matter in each of the claims is directed to limited computers. [00:05:54] Speaker 04: I mean, it goes through, and this is supported by Dr. Green's declaration. [00:05:58] Speaker 04: If you look at paragraph 57, computers are capable of processing information in a distributed manner that are not covered by the asserted claim. [00:06:06] Speaker 04: So there's other ways you can do it, and it brings up the SETI at home. [00:06:09] Speaker 03: All these things you're reading us tell us things that they're not doing. [00:06:15] Speaker 03: Can you point to us that says this is a specific program that operates in a specific way that is analogous to ENFISH? [00:06:23] Speaker 04: Yes, if you look at page APPX125, and also in the specification, I would direct you to the specification which talks about overcoming problems. [00:06:34] Speaker 04: Paragraph 32 of the complaint, to achieve acceptable levels of performance and reliability for mission-critical computing. [00:06:41] Speaker 04: It talks about the prior. [00:06:42] Speaker 04: Then he said, paragraph 34, each of the asserted claims is rooted in computing technology in order to overcome these problems. [00:06:49] Speaker 04: So identifies the problems. [00:06:51] Speaker 04: He says they overcome the problems and improves the functionality of computers. [00:06:55] Speaker 03: And then all this is saying this is a result. [00:06:59] Speaker 03: We've invented this new system. [00:07:01] Speaker 03: It's better than the old system. [00:07:03] Speaker 03: but it doesn't tell us what the new system is. [00:07:05] Speaker 01: It doesn't say why. [00:07:06] Speaker 01: I'm just adding on what he says. [00:07:08] Speaker 01: He says it claims a new novel specific and inventive mechanism, system, or method. [00:07:13] Speaker 01: It's very general. [00:07:15] Speaker 01: It doesn't say what specifically is the thing that's inventive. [00:07:20] Speaker 04: The specification specifically tells you what a request handler is, what a process handler is. [00:07:26] Speaker 03: Why don't you take us there? [00:07:36] Speaker 04: If you look at A0238, and actually this is actually the claim one of the patent, of the 209 patent. [00:08:04] Speaker 04: I'm sorry. [00:08:05] Speaker 04: What? [00:08:08] Speaker 04: I'm sorry. [00:08:09] Speaker 00: Well, we're past the 209 patents. [00:08:12] Speaker 00: Oh, that's right. [00:08:12] Speaker 00: Sorry. [00:08:14] Speaker 04: Let's go to APPX 112. [00:08:17] Speaker 04: Let's just start with claim one. [00:08:23] Speaker 04: It specifically talks about, it introduces the request handler, the process handler, the task handler. [00:08:29] Speaker 04: It says what each is configured to do, which is functionality. [00:08:33] Speaker 04: And I'll give you the example at column 28, line 30. [00:08:36] Speaker 04: This is talking about the process handler. [00:08:38] Speaker 04: In response to state information analysis indicating that a processing task remains for the process flow, then it goes out so it's receiving state information. [00:08:47] Speaker 04: That is what is enabling these computers to work together. [00:08:50] Speaker 04: What's state information? [00:08:52] Speaker 04: State information is information that's described with respect to the state of the task being performed. [00:08:59] Speaker 04: It's not simply an on and off state like in general computing terms. [00:09:03] Speaker 04: What's going on with this task? [00:09:04] Speaker 04: Where are you at in processing this task? [00:09:06] Speaker 04: It's the status of the task. [00:09:08] Speaker 04: It's the status of the task, but it's being shared. [00:09:10] Speaker 04: And again, this is the functionality. [00:09:12] Speaker 04: This isn't an application program where you plug this in and it does a task. [00:09:17] Speaker 04: What this does is it receives all these computers working together as one computer, receive an application program, take the task, break it up into smaller tasks, which is in the claims, and then processes that information [00:09:31] Speaker 04: in the most efficient way based on the resources it has available. [00:09:34] Speaker 04: And the key here is the goal, remember the goal was to use commodity, boxes, hardware, and enable them to work together to give more power and redundancy. [00:09:45] Speaker 03: Do you think what you just said is a fair description of the invention? [00:09:48] Speaker 04: Yes, Your Honor, I do. [00:09:49] Speaker 03: Then how is that not abstract? [00:09:51] Speaker 03: What you just basically said was it divides up tasks, sends them out to be processed in a more efficient manner. [00:10:00] Speaker 04: Because the reason it's not is because it's not just a generic computer doing that. [00:10:05] Speaker 04: This is 50 computers or 20 computers that are doing it together. [00:10:11] Speaker 04: Two or more, correct, doing it together. [00:10:14] Speaker 04: And the state of the art at the time didn't do that. [00:10:17] Speaker 04: It didn't. [00:10:19] Speaker 01: What about the disclosure in columns two and three that say distributed computing was known and that study at home or other examples where there were two or more computers that [00:10:30] Speaker 01: a bit of tasks among them. [00:10:32] Speaker 04: That's the prior art, Your Honor, like the SETI computer. [00:10:36] Speaker 04: And that's where one computer, who they describe as command and control, send out a task and then receive back information. [00:10:43] Speaker 04: The difference is, if that SETI computer broke down, the task handlers, the computers that sent it to would have nobody to send it to. [00:10:49] Speaker 04: There's no redundancy. [00:10:51] Speaker 04: The other difference is, in the SETI system, if the dependent computer broke down, the SETI master computer didn't have the ability to even know that. [00:11:00] Speaker 04: or to know that it should step in and do that task. [00:11:03] Speaker 04: Here, what was created was a group of computers together that can know constantly what's going on with each other so that if any one of them has to step up and do something, it can do that. [00:11:14] Speaker 04: And that's described in detail in the flow charts in the specification. [00:11:17] Speaker 04: It's described in detail in the specification. [00:11:20] Speaker 04: And we have to look at the written descriptions to know what the claims mean. [00:11:23] Speaker 04: If my client was required to claim the computer functionality in all of its detail in a claim, the claim would be four pages long. [00:11:30] Speaker 01: Where in the specification does it disclose that it's so important that the inventive aspect, one of the inventive aspects is the idea of being able to, if one computer falls out, that there will be intelligence to know that. [00:11:48] Speaker 04: Right. [00:11:49] Speaker 04: Well, first it introduces the problem and talks about that's the problem. [00:11:53] Speaker 04: that if one computer falls out, and then within the specification it talks about exchanging state information. [00:12:03] Speaker 04: It also talks about primary and secondary computers. [00:12:06] Speaker 04: So you can assign a task to two computers. [00:12:08] Speaker 04: One's a primary and one's just monitoring as a secondary in case it falls out. [00:12:12] Speaker 04: There's a discussion of that in the specification as well. [00:12:15] Speaker 00: Mr. Simon, why don't we save the rest of your time and hear from Mr. Fish. [00:12:19] Speaker 04: Thank you. [00:12:27] Speaker 02: Thank you, Your Honor. [00:12:28] Speaker 02: May it please the court once again. [00:12:30] Speaker 02: A lot of what we just heard about the description of that system, nearly all of it, none of it's found in the claim language. [00:12:37] Speaker 02: And that's obviously what we have to work with. [00:12:39] Speaker 02: And Judge Hughes, I'd like to follow up on your questions that seem very Bascom related. [00:12:43] Speaker 02: Coming back to that once more, as Your Honor knows, the Bascom decision itself calls it a close call. [00:12:49] Speaker 02: And I don't even think that the apestry claims are close enough to be a close enough close call. [00:12:55] Speaker 02: that what we've got here, as we've heard, is something that is not unconventional. [00:12:59] Speaker 02: Column 2 of the specification identifies that Unix clusters and Unix servers and Unix network computers operated together as well. [00:13:09] Speaker 02: That's exactly what we've just heard. [00:13:10] Speaker 02: Two computers network together. [00:13:12] Speaker 02: Conventional hardware, conventional network. [00:13:15] Speaker 02: This is not the condition of Bascom where someone is moving the filtering device to a different location, separate from where the prior art was, [00:13:25] Speaker 02: separate from where the general view of how it should operate functioned. [00:13:30] Speaker 02: There's nothing unconventional about what we've just heard described. [00:13:34] Speaker 02: And so in that respect, I don't think that Bascom is safe harbor at all. [00:13:39] Speaker 02: In fact, we're back to the other cases we've talked about before, where we've got general purpose computers trying to implement nothing more than abstract concepts. [00:13:50] Speaker 02: And so in that respect, these claims do not meet the Bascom test. [00:13:55] Speaker 02: Unless there are any other questions, I ask that this court affirm the two decisions of the lower court. [00:14:02] Speaker 00: Thank you, Mr. Fish. [00:14:03] Speaker 00: Mr. Simon has a few minutes if he needs it for rebuttal. [00:14:08] Speaker 04: Yes, Sean. [00:14:10] Speaker 04: I was able to locate now additional allegations in the complaint at APPX 135 and 136, where it specifically discusses the SETI at home computer and how the new system is better than that and why. [00:14:25] Speaker 04: And it starts at APPX 135 through 138. [00:14:31] Speaker 04: What I'd like to end with is in this case, the district court on a judgment on the pleadings made factual findings that say what we're doing is routine and conventional. [00:14:45] Speaker 04: Didn't cite anything to the record. [00:14:48] Speaker 04: And instead was really caught up in the fact that we use commodity or generic computers to make the invention. [00:14:54] Speaker 04: What's missed there is that's the whole purpose of the invention, to use generic computers and imbue them with the capability to work together in a seamless fashion so that a PC or a small computer was able to provide the power that a big computer would have. [00:15:11] Speaker 04: In addition, if you had a Unix computer and the things that were in the past and distributed supercomputers, you still had to employ programmers who could be familiar with those particular computers so that when they wrote application programs, they could do it. [00:15:25] Speaker 04: In this case, the district court found routine and conventional. [00:15:30] Speaker 04: And the second district court case, the first one found routine and conventional. [00:15:35] Speaker 04: The second one said we're performing generic computer functions using generic computers. [00:15:39] Speaker 04: The evidence was undisputed that, as alleged in the complaint, a specific single generic computer couldn't do it on its own. [00:15:47] Speaker 04: When we combine all these computers together, it still wouldn't work unless you [00:15:53] Speaker 04: make each of those computers be able to work together in a seamless way so that they can divide up the task, know who's doing what task, and group it all back together. [00:16:04] Speaker 04: That's discussed in the specification. [00:16:07] Speaker 04: So it's improper for the district court, looking at the specification, to make findings contrary to the specification at the 12b stage. [00:16:16] Speaker 04: It's improper for the district court to ignore [00:16:23] Speaker 04: Declaration of the Expert where he goes through and explains that why this is invented and what didn't exist at the time. [00:16:29] Speaker 04: There just simply wasn't a system back in 2002 that did this with generic computers, with commodity computers. [00:16:36] Speaker 04: The last thing I'd say is that the district court didn't even cite to or analyze the Enfish case or some of the other cases that specifically discuss if you take software on a new computer, imbue it with new functionality, [00:16:51] Speaker 04: That's not an abstract idea, or if it is, it can be inventive. [00:16:55] Speaker 04: And what I'd suggest in this case is at the 12b6 stage, the fact that there's no evidence of record that does what my client claims in the patent and discloses in the patent, that it is improper to dismiss the case on that basis. [00:17:09] Speaker 00: Thank you. [00:17:09] Speaker 00: Thank you. [00:17:09] Speaker 00: Mr. Simon will take the case under revised.