[00:00:59] Speaker 03:
Our final case this morning is number 1622, Athena Health, Inc.

[00:01:05] Speaker 03:
versus Care Cloud Corporation.

[00:01:07] Speaker 03:
Mr. Corbin.

[00:01:19] Speaker 00:
May it please the Court, I want to focus my initial remarks on the 101 issues and spend a little bit of time later on some of the APA due process issues.

[00:01:30] Speaker 01:
Can I ask a question, though, about technological invention?

[00:01:33] Speaker 01:
I mean, are we just collapsing technological invention and the 101 Alice standard into one, essentially?

[00:01:41] Speaker 01:
Or are they separate inquiries?

[00:01:44] Speaker 00:
I think they're separate inquiries, Your Honor.

[00:01:47] Speaker 00:
The technological invention inquiry for the jurisdiction, it's a two-part inquiry under the rules.

[00:01:53] Speaker 00:
The first part, is it novel and non-obvious?

[00:01:55] Speaker 00:
And the second part, is it a technological

[00:01:58] Speaker 00:
solution to a technological problem.

[00:02:00] Speaker 00:
Was it collapsing the second part then with the initiation standard?

[00:02:04] Speaker 00:
I think the second part overlaps.

[00:02:08] Speaker 00:
The second part of the technological invention standard of the jurisdictional question overlaps with part of the inquiry for Alice Step 2.

[00:02:17] Speaker 00:
It's the same?

[00:02:20] Speaker 00:
For the part of the inquiry for Alice, step two, where you're looking at is there a technological solution to a technological problem, I think they're very similar.

[00:02:31] Speaker 00:
They may be the same.

[00:02:32] Speaker 00:
I don't think this court has said that, but they use the same language.

[00:02:37] Speaker 03:
How could it be that you get into a proceeding, a CBM proceeding involving 101, and that at the end of the day you decide that

[00:02:50] Speaker 03:
It is one-on-one eligible, and that means it shouldn't have been initiated in the first place, and therefore there's no estoppel effect to the final decision.

[00:02:59] Speaker 03:
I mean, that really can't have been what Congress intended, could it?

[00:03:03] Speaker 00:
I think that's a fair question, Your Honor, that the rule does say what the rule says.

[00:03:08] Speaker 00:
I do understand that concern, that the jurisdictional part of the regulation serves as a gatekeeping function for allowing the CBM to go forward.

[00:03:19] Speaker 00:
But the regulation says what the regulation says.

[00:03:25] Speaker 01:
What does it say?

[00:03:28] Speaker 00:
It's a two-part analysis.

[00:03:30] Speaker 01:
As we said in Versada, it doesn't say much, unfortunately.

[00:03:34] Speaker 00:
As you said in Versada, it doesn't say much.

[00:03:37] Speaker 00:
But Versada can't change what the regulation says.

[00:03:41] Speaker 00:
The regulation says 42301B, it's a technological invention if the claim subject matter as a whole

[00:03:49] Speaker 00:
recites a technological feature that is novel and non-obvious, part one, and solves a technical problem using a technical solution, part two.

[00:03:58] Speaker 03:
Well, I mean, in sight sound, we said that that's reviewed under an arbitrary and capricious standard.

[00:04:03] Speaker 03:
I mean, why can't we say, well, the initial determination is to be sustained if it's a reasonable determination on the record that existed at that time.

[00:04:17] Speaker 03:
but that later on there's more evidence received and the final decision may be different from the initial decision, but that doesn't mean that the initial decision was wrong or that the proceeding was improperly initiated.

[00:04:30] Speaker 00:
I think as a general matter you could say that, but what the board did here in the initial stage, it didn't apply the as a whole requirement of 37 CFR 42.

[00:04:43] Speaker 00:
It looked at the specific

[00:04:47] Speaker 00:
components of the claim and look at the conventionality of the claim.

[00:04:50] Speaker 03:
You're demanding a level of precision at the outset, which it seems to me is very difficult to achieve, and creates this situation where you're conflating the initiation decision with the final decision, which you've agreed would be impractical.

[00:05:08] Speaker 00:
I think it is impractical to say that the initiation decision

[00:05:13] Speaker 00:
has to be of the same level, same scope as the final decision.

[00:05:17] Speaker 00:
At the same time, the regulation does say what the regulation says.

[00:05:24] Speaker 00:
And following the language of the regulation, applying the claim subject matter as a whole, and looking at whether or not it's solving a technical solution to a technical problem, I don't think the board did that.

[00:05:41] Speaker 00:
even came close to doing that in the initiation stage here.

[00:05:45] Speaker 00:
But I understand the point.

[00:05:48] Speaker 00:
It is a concern.

[00:05:49] Speaker 00:
I understand the concern that was raised in Versada.

[00:05:51] Speaker 00:
It's a gatekeeping statute.

[00:05:54] Speaker 00:
I don't disagree that the board can build the record and come to a determination at the end that may differ from that.

[00:06:05] Speaker 01:
So why don't you turn to 101?

[00:06:07] Speaker 00:
Sure.

[00:06:10] Speaker 00:
So following up from that, this case does present a unique set of facts.

[00:06:17] Speaker 00:
And what the claims cover here is a specific technical solution to a specific technical problem in the insurance industry.

[00:06:27] Speaker 00:
It's the interaction, the integration between a doctor's office claim submission system and an insurance company back end pay or verification system.

[00:06:40] Speaker 00:
And I think that's the crux of the issue here.

[00:06:44] Speaker 00:
The board didn't give full weight and full consideration to the crux of the invention here.

[00:06:52] Speaker 00:
And on the same record, the board found that the claims were novel and unobvious.

[00:07:00] Speaker 00:
And on the same record, it was undisputed that there were other ways of doing this, that there were other ways of implementing the idea

[00:07:09] Speaker 00:
And so preemption is not a concern here.

[00:07:13] Speaker 00:
And so the board, I think, fell into the trap that this court has cautioned about in recent cases, such as McRoe and Bascom and Enfish, that you can't, when you're characterizing or attempting to characterize the abstract idea, you can't overgeneralize.

[00:07:31] Speaker 00:
You can't over abstract.

[00:07:32] Speaker 00:
And you can't deconstruct into these

[00:07:35] Speaker 00:
individual components and look at the conventionality of each individual component.

[00:07:41] Speaker 00:
I think the Supreme Court has said, and this Court has said, you can always boil down any idea into some level of abstraction.

[00:07:48] Speaker 00:
And that's the struggle with all of these cases.

[00:07:50] Speaker 01:
But how is this that different from the actual program that was at issue analysis?

[00:08:01] Speaker 00:
What's going on here is it was new.

[00:08:04] Speaker 00:
It was novel.

[00:08:05] Speaker 00:
It was something that hadn't been done before.

[00:08:07] Speaker 00:
And if I can step back and explain what was going on in the industry.

[00:08:12] Speaker 00:
At a high level.

[00:08:13] Speaker 00:
At a high level, sure.

[00:08:15] Speaker 00:
Pre-computerization and then post-computerization.

[00:08:20] Speaker 00:
Before the computer age, it was expensive for the insurance companies to review all the claims.

[00:08:27] Speaker 00:
And so there was no computers.

[00:08:28] Speaker 03:
So essentially, this is- So computers enabled them to review the claims more efficiently.

[00:08:34] Speaker 00:
So once things became computerized, the insurance companies implemented these rules.

[00:08:41] Speaker 00:
And this is what created the problem.

[00:08:43] Speaker 00:
The insurance companies implemented rules by which they would reject claims.

[00:08:48] Speaker 00:
There was no integration between the doctor's office

[00:08:51] Speaker 00:
the medical practice management servers and the insurance companies.

[00:08:54] Speaker 00:
So what happened was all these insurance claims were coming in and they were getting rejected.

[00:08:59] Speaker 00:
And they weren't getting paid and there was no integration between the systems.

[00:09:05] Speaker 00:
And that's at the heart of the invention of the morals.

[00:09:07] Speaker 00:
But surely it was practical.

[00:09:09] Speaker 03:
And it was done that these claims were checked against a set of rules.

[00:09:15] Speaker 03:
For typos, for example, that would be a rule, right?

[00:09:19] Speaker 03:
Would typos be a rule?

[00:09:22] Speaker 00:
There was error checking.

[00:09:25] Speaker 03:
Would typos be a rule?

[00:09:27] Speaker 03:
Would typos be a rule?

[00:09:30] Speaker 03:
Checking for a typo could be a rule.

[00:09:33] Speaker 03:
So that was done before, right?

[00:09:36] Speaker 00:
It was not done in the sense of a pre-claimed submission.

[00:09:43] Speaker 00:
There were typos that were checked at the NPM level.

[00:09:47] Speaker 00:
There were

[00:09:48] Speaker 00:
There were things that were done.

[00:09:51] Speaker 00:
There was error checking.

[00:09:52] Speaker 00:
There was a verification process that was done at the initial stage.

[00:09:57] Speaker 02:
Even pre-computer, didn't the insurance companies notify the providers or their service companies that we won't accept a claim unless it provides this information?

[00:10:12] Speaker 02:
And that's our rule.

[00:10:16] Speaker 00:
So there were different ways of understanding what the insurance companies would do.

[00:10:21] Speaker 00:
And that's actually one of the inventive aspects of the claim.

[00:10:24] Speaker 00:
Through the experience of the medical practice management or through the experience of the doctor's office, people understood what was going to get rejected and what wouldn't get rejected.

[00:10:34] Speaker 00:
But what wasn't done was taking the real-time updated rules from the insurance company and integrating it with the doctor's office so that you would

[00:10:44] Speaker 03:
so that you would know before the claim was submitted at the doctor's office using an innovative... The doctor's office before computers knew that the form had to be completed and they were checking to see that the form was completed, right?

[00:11:02] Speaker 00:
The doctor's office was doing eligibility checks and that's describing the patent.

[00:11:10] Speaker 00:
The doctor's office

[00:11:11] Speaker 00:
What the doctor's office wasn't doing was checking to see if the insurance company's rules were up to snuff.

[00:11:19] Speaker 03:
Completeness?

[00:11:20] Speaker 03:
They weren't checking for completeness?

[00:11:25] Speaker 00:
I don't think there's anything in the record that's saying that either rules were being applied from the insurance company or that rules were being applied in an updated fashion.

[00:11:37] Speaker 00:
or that it was being integrated in real time.

[00:11:40] Speaker 01:
Where in the patent is there a specification of what exactly the rules are that were being implemented or guarded against?

[00:11:49] Speaker 00:
So the patent describes the

[00:12:04] Speaker 00:
the rules database and the rules and how they're implemented in column six.

[00:12:09] Speaker 01:
But it doesn't define what those rules are, right?

[00:12:14] Speaker 00:
In column six, it does describe how the rules will be applied.

[00:12:19] Speaker 00:
There are other portions of the specification that talk about how the workflow processing engine and the rules engine will apply those rules.

[00:12:30] Speaker 00:
But the rules are described both in column six and

[00:12:34] Speaker 00:
and in the claim itself as to the novel aspects that were needed to integrate these systems.

[00:12:42] Speaker 00:
I mean, this is not the case.

[00:12:43] Speaker 03:
The rules are not novel, right?

[00:12:48] Speaker 00:
A rule could be novel.

[00:12:50] Speaker 03:
But a completeness rule is a rule within the meaning of the claims, right?

[00:12:57] Speaker 00:
A completeness rule could be a rule within the meaning of the claims, yes.

[00:13:02] Speaker 01:
Are you familiar with the decision that we issued yesterday, Intellectual Ventures versus Capital One?

[00:13:07] Speaker 00:
Yes.

[00:13:07] Speaker 01:
Where we said an unspecified set of rules isn't enough for purposes of step two of ALIS?

[00:13:15] Speaker 00:
And I think in that case, this is the indexing, the XML indexing case, the concern there was, if I recall, I just read this last night,

[00:13:30] Speaker 00:
The concern in that case was the abstract idea of indexing, searching on a database, and then trying to narrow the application of that to the field of use using XML tags.

[00:13:41] Speaker 00:
My understanding is XML tags were synonymous.

[00:13:44] Speaker 00:
XML and tagging were synonymous.

[00:13:46] Speaker 00:
So it was essentially a limitation on the field of use, which doesn't allow you to pass step two.

[00:13:53] Speaker 00:
What we have here is very different.

[00:13:55] Speaker 00:
What we have here is much more akin

[00:13:58] Speaker 00:
to the case in Bascom and Amdocs where you have distribution of elements that are put together in a novel way using conventional elements.

[00:14:12] Speaker 00:
The question in Bascom was the abstract idea of internet filtering.

[00:14:22] Speaker 00:
it was conventional elements, conventional network elements, conventional computer elements that were arranged in a way that hadn't been done before.

[00:14:29] Speaker 00:
What we have here, yes, there are conventional computer elements.

[00:14:33] Speaker 00:
Yes, there are rules.

[00:14:34] Speaker 00:
We don't disagree that, in general, a rule could be conventional or a database could be conventional.

[00:14:39] Speaker 00:
But what you have here, and I think the key here, is that the implementation of the rules in the database and the interactive interface, which was novel, by the way, and hadn't been put together in a way

[00:14:52] Speaker 00:
that had been done here integrated the two systems in a way that hadn't been done before.

[00:14:57] Speaker 00:
Nobody before this invention at the doctor's office was able to see the rules in real time from the insurance company and then interact with the errors and fix it in advance.

[00:15:09] Speaker 00:
There was some error checking at the MPM stage.

[00:15:11] Speaker 00:
There was some error checking with some fraud

[00:15:17] Speaker 00:
fraud questions at the insurance office.

[00:15:19] Speaker 01:
But wouldn't people at the doctor's office have the set of insurance company rules and when they're submitting a form they would have to make sure that they satisfied those rules, right?

[00:15:29] Speaker 01:
This is just doing that faster.

[00:15:30] Speaker 00:
I don't think there's any evidence that anyone, in fact I think, I don't think there's evidence that anyone at the doctor's office was applying rules from the insurance company.

[00:15:39] Speaker 00:
I think

[00:15:40] Speaker 00:
what was being done at the doctor's office was verification checks.

[00:15:43] Speaker 03:
They were told to complete the form.

[00:15:45] Speaker 03:
That's a rule.

[00:15:46] Speaker 03:
You admit that's a rule.

[00:15:48] Speaker 03:
And they were checking to see that they completed the form, right?

[00:15:54] Speaker 00:
Your Honor, that's different than knowing in advance, are you going to pass all of the rules and classes?

[00:16:02] Speaker 00:
Are you filling out the form?

[00:16:04] Speaker 00:
Are you going to meet all the requirements for each particular plan?

[00:16:09] Speaker 00:
Are you getting the most up-to-date rule?

[00:16:11] Speaker 00:
And that hadn't been done before.

[00:16:13] Speaker 01:
Is it your point that the rules could change on a daily basis and that this is a system that allowed you to have those updates rather than go back to the original rules?

[00:16:25] Speaker 00:
That was one of the key aspects that distinguished this over the prior art was the ability to update the rules in real time directly from the payor server.

[00:16:34] Speaker 00:
That was one of the key limitations here.

[00:16:36] Speaker 00:
from the Payor server.

[00:16:37] Speaker 00:
That hadn't been done before.

[00:16:39] Speaker 00:
The p-tab here below said that that hadn't been done before and that hadn't been integrated.

[00:16:45] Speaker 00:
And if I can, for a moment, I know I'm beyond my time.

[00:16:48] Speaker 03:
Yeah, well, I think we'll give you two minutes for a bottle.

[00:16:50] Speaker 03:
We're out of time right now.

[00:16:52] Speaker 03:
Now, you're going to have to sit down.

[00:16:55] Speaker 03:
You're out of time.

[00:16:55] Speaker 03:
We'll give you two minutes for a bottle.

[00:16:57] Speaker 03:
Thank you.

[00:17:07] Speaker 03:
Mr. Faris.

[00:17:09] Speaker 04:
Thank you, Your Honor.

[00:17:10] Speaker 04:
May it please the Court, my name is Ozzie Farris, and I represent Care Cloud in this matter.

[00:17:16] Speaker 04:
Your Honors, in the underlying CBM proceeding, on the strength of the available record, the PTAP got it right that the claims are directed to the general abstract idea of scrubbing claims before submission, and that the claims recite mere conventional and routine computer components to carry out that abstract idea.

[00:17:36] Speaker 04:
The PTAP's finding is entirely consistent, Your Honors, with what the inventors tell us in the patent.

[00:17:40] Speaker 04:
For decades, and these are words straight out of the patent, not mine, for decades, medical practitioners would interact with insurance companies to determine whether there was a problem with medical claim submission.

[00:17:52] Speaker 01:
And this happens before... What about this last limitation, though?

[00:17:55] Speaker 01:
I think that this is one that is somewhat different from just putting something on a computer.

[00:18:01] Speaker 01:
The ability to have updated rules

[00:18:05] Speaker 01:
from the payor that you can automatically get, rather than go back to some book that you received in the mail maybe a year before.

[00:18:14] Speaker 01:
Doesn't that materially change the nature of the invention?

[00:18:19] Speaker 04:
That's not the invention, Your Honor.

[00:18:20] Speaker 04:
The claims don't talk about, there's a generic reference to integration of disparate and distinct systems, but the claims don't recite any integration whatsoever.

[00:18:28] Speaker 04:
In fact, we don't even know based on the claim language whether these components are even in communication.

[00:18:34] Speaker 04:
These are all method claims.

[00:18:35] Speaker 04:
We speak about servers.

[00:18:37] Speaker 04:
We speak about databases.

[00:18:38] Speaker 04:
We speak about client stations.

[00:18:40] Speaker 04:
But there's no communication means or mechanism or structure by which these components talk.

[00:18:46] Speaker 04:
And they reference the specification.

[00:18:48] Speaker 04:
And they're trying to backfill the claim by getting limitations about these so-called updates are taking place in real time.

[00:18:56] Speaker 04:
The only thing the claims speak to is that they're received from a payor server.

[00:19:00] Speaker 04:
But there's no explanation as to how that happens.

[00:19:04] Speaker 04:
And we know from your honor's ruling in Accenture that the claim invention is what needs to be assessed.

[00:19:11] Speaker 04:
You cannot look at the more detailed specification to take an otherwise abstract idea and make it patent eligible.

[00:19:20] Speaker 01:
What about the notion that the board found this to be non-obvious and not anticipated?

[00:19:29] Speaker 04:
Well, I think that's an excellent question, your honor.

[00:19:31] Speaker 04:
And it's one that has been addressed before.

[00:19:34] Speaker 04:
There are two issues that I think they categorically try to leverage and really just collapse the 101 issue down to really two questions, novelty slash non-obviousness and preemption.

[00:19:45] Speaker 04:
Neither one of those is dispositive on the 101 issue.

[00:19:48] Speaker 04:
It's a separate, substantive determination that needs to be made on its own facts.

[00:19:53] Speaker 04:
And the Supreme Court in Mayo said very clear, a novel and non-obvious claim directed to a purely abstract idea, which is exactly what we have here, is nonetheless patent-eligible.

[00:20:03] Speaker 04:
And it makes sense, Your Honor, because first of all, you'd eviscerate the whole 101 requirement altogether if you simply said it's based on whether it's novel or non-obvious.

[00:20:12] Speaker 04:
But secondly, even if you're- That would be a good idea.

[00:20:15] Speaker 04:
Somewhat argued.

[00:20:18] Speaker 04:
But it would also be absurd in the sense that, so on the strength of, for example, these references that we've proposed to the CBM and the PTAB,

[00:20:28] Speaker 04:
It would seem to make the 101 determination a temporary one or an ad hoc one in the sense that, so it's patent eligible because it's not obvious over these references.

[00:20:38] Speaker 04:
But what happens if later on some additional better references, let's say, turn up?

[00:20:42] Speaker 04:
Does it all of a sudden turn the abstract idea into being a patent eligible subject matter?

[00:20:48] Speaker 04:
It doesn't make much sense.

[00:20:48] Speaker 04:
There are two separate determinations.

[00:20:51] Speaker 04:
The 101 determination is the front door into the patent office.

[00:20:54] Speaker 04:
If you can't get past that, separate it apart from 102, 103.

[00:20:58] Speaker 04:
then the fact that on the record evidence of a certain combination of references, the subject matter may be not obvious has no bearing whatsoever on the 101 determination.

[00:21:09] Speaker 04:
And then secondly, the preemption concept is similarly being misapplied by appellants.

[00:21:15] Speaker 04:
The Ariosa case, and more recently the McRoe decision, made it very clear that where a patent's claims are deemed only to disclose ineligible subject matter, and that's exactly what the PTEP found here.

[00:21:27] Speaker 04:
as they are in this case, preemption concerns are fully addressed and made moot.

[00:21:32] Speaker 04:
And that makes a lot of sense, Your Honor, because the focus of 101 is, what is the invention?

[00:21:38] Speaker 04:
The invention here is doing nothing more than detecting and correcting errors in a medical claim submission before you send it off to the insurance company for payment.

[00:21:47] Speaker 02:
Does it correct them, or does it pop up a screen that says, you need to correct them?

[00:21:52] Speaker 04:
Well, I think Your Honor has offered up a situation where if there's a typo,

[00:21:56] Speaker 04:
I think it's rather common sense to correct that typo before you submit the payment, especially if you know, and this is on both sides of the parties here, the expert testimony is that everyone wants to get paid quickly.

[00:22:12] Speaker 04:
So for no other reason, you're going to detect that typo, and you're going to correct that typo before you send that bill off to the insurance company, because it's going to delay payment if it's not fixed.

[00:22:22] Speaker 04:
And so the prior art.

[00:22:27] Speaker 04:
and the evidence of record, both from the teachings of the patent itself, from the expert testimony of record.

[00:22:34] Speaker 04:
In fact, Your Honors, I think there was a comment made that there is no evidence in the record that in the way this was done before, it was done with medical practitioners.

[00:22:43] Speaker 04:
That's entirely incorrect.

[00:22:45] Speaker 04:
Their own expert, Mr. Gooden, specifically testified and actually recalled a binder of rules that used to be used to process

[00:22:54] Speaker 04:
these claims before submission and to use to detect and correct error.

[00:22:57] Speaker 04:
And so the reality is, and I think there was some reference made to clear jurisprudence on this issue, that the mere enhancing or speeding up or making more efficient of an abstract idea on a computer does not take the otherwise ineligible subject matter and make it pass muster under 101.

[00:23:19] Speaker 04:
That's a basic alice.

[00:23:21] Speaker 04:
That's basic alice, your honor.

[00:23:23] Speaker 04:
And it goes all the way back.

[00:23:24] Speaker 04:
You mentioned intellectual ventures.

[00:23:25] Speaker 04:
There was a decision from a few years ago where that was exactly the point that chronicled the list of cases that made that point very clear.

[00:23:33] Speaker 04:
And that's exactly what's going on here.

[00:23:35] Speaker 04:
You're essentially, if you look at the distinct components in these claims, you have a medical practice management server.

[00:23:42] Speaker 04:
You have a client station.

[00:23:44] Speaker 04:
You have a database.

[00:23:46] Speaker 04:
You have a payer server.

[00:23:48] Speaker 04:
The PTAB correctly determined that these are all

[00:23:51] Speaker 04:
standard generic routine conventional components.

[00:23:54] Speaker 04:
And that's straight out of the specification.

[00:23:57] Speaker 04:
I think the server is defined as being any computer.

[00:24:00] Speaker 04:
You can't get more general than that.

[00:24:02] Speaker 01:
What is your response to the issue of the interplay between technological invention and the 101 inquiry?

[00:24:08] Speaker 01:
I mean, your brief, even more so than the other side, completely collapses the analysis.

[00:24:14] Speaker 04:
Yeah.

[00:24:15] Speaker 04:
Yeah, I think the issue, I mean, you have to look at it.

[00:24:17] Speaker 04:
Glad you admit that.

[00:24:18] Speaker 04:
Yeah.

[00:24:19] Speaker 04:
I tried to be very precise in making my point.

[00:24:22] Speaker 04:
The reality is the rules say what they say, but so do the opinions of this court.

[00:24:30] Speaker 04:
And this court made it very clear that it is a technical invention.

[00:24:35] Speaker 04:
The PTAB, under that authority, isolated the technical aspects of the claims and said they're routine, conventional, well-known.

[00:24:44] Speaker 04:
Versado also made it clear that it's premature to assess the patentability

[00:24:49] Speaker 04:
of the method steps.

[00:24:51] Speaker 04:
And that's common sense.

[00:24:52] Speaker 04:
At the end of the day, it's a jurisdictional determination that's being made, not a substantive one.

[00:24:57] Speaker 03:
And so I would say that for purposes of the jurisdictional... But the inquiries can't be, the standards can't be the same for initiation and final result, because if the claims were determined to be patent eligible, then that would

[00:25:12] Speaker 03:
not create an estoppel, and that can't be what was intended.

[00:25:16] Speaker 03:
There has to be a different standard for initiation and for invalidation at the end, right?

[00:25:22] Speaker 04:
I think so, although I suspect that the scope of the record would evolve throughout the proceeding and there may be some more light shed on the issue.

[00:25:30] Speaker 01:
But at the end of the day, and at least at the point... But it's also the different standards.

[00:25:33] Speaker 01:
I mean, it's a question of

[00:25:35] Speaker 01:
It doesn't have to be preponderance at the initiation stage.

[00:25:38] Speaker 04:
Arbitrary and capricious at the jurisdictional level versus preponderance at the substantive merit level.

[00:25:45] Speaker 04:
But certainly, as applied here, the PTAB did what it had to do.

[00:25:50] Speaker 04:
It identified and called out the technical aspects and determined that there was no technical solution being offered here.

[00:25:58] Speaker 04:
These are routine conventional components.

[00:26:04] Speaker 01:
If we agree with you on the 101 analysis, we don't need to reach your obviousness points, right?

[00:26:11] Speaker 04:
That's correct.

[00:26:12] Speaker 04:
I mean, we disagree with the obviousness determination, Your Honors, but at the end of the day, all claims have been rejected.

[00:26:20] Speaker 01:
I mean, the obvious determination was in large measure predicated on your failures of proof, right?

[00:26:26] Speaker 04:
Well, I think the proof was there.

[00:26:29] Speaker 04:
I think it was misunderstood or misapprehended and in some cases outright ignored, frankly.

[00:26:34] Speaker 04:
I think our brief sets out the reasons why that's the case, but just two instances that I would like to point your attention to is the PTAB in the final written decision specified that there's two points that they made, that the petitioner did not assert in its petition that one, a person of skill and the art would have included Holloway's rules and Barber to correct or identify errors, or two, that a person of skill and the art would have included Rieker's real-time determination.

[00:27:03] Speaker 04:
for each payer in Barbara to enhance Barbara's error detection function with updated information.

[00:27:09] Speaker 04:
There's two specific points in our original petition when we make that exact same point.

[00:27:13] Speaker 04:
So it calls into question the extent to which the PTAB reviewed all of the evidence.

[00:27:20] Speaker 04:
And our position is under KSR and the more recent case in Randall that you can't take a very rigid approach to making the obviousness determination.

[00:27:30] Speaker 01:
It has to be- Well, you can't just list

[00:27:31] Speaker 01:
elements in the prior art.

[00:27:33] Speaker 01:
You've got to have some basis for confining those elements, right?

[00:27:36] Speaker 04:
We do have those bases.

[00:27:37] Speaker 04:
And the two examples that I just mentioned here are bases that we provided in the petition.

[00:27:42] Speaker 04:
And furthermore, there was also some, I think it was unfortunate, but the PTAP seemed to disregard Dr. Berger on supplemental declaration.

[00:27:52] Speaker 04:
And I would add only that that was our first opportunity to respond to appellant's response and preliminary response to the original petition.

[00:28:01] Speaker 04:
And one of the issues that came up is that they define the term rules to be coded logic that evaluates information that performs an action or something along those lines.

[00:28:13] Speaker 04:
So we felt the need to submit a supplemental declaration where Dr. Bergeron applies that understanding as well and at the end of the day concludes that the claims are still invalid over the proposed combination.

[00:28:26] Speaker 04:
And so our position is that the 103 determination, although mooted entirely,

[00:28:32] Speaker 04:
If the 101 goes our way, it's still, we believe that it was not properly decided, and Your Honor should take a look at it.

[00:28:42] Speaker 03:
OK, anything further?

[00:28:46] Speaker 03:
That's all I have to say, Your Honor.

[00:28:48] Speaker 03:
OK, thank you.

[00:28:50] Speaker 03:
Mr. Corbett, you have two minutes for a moment.

[00:28:56] Speaker 00:
Thank you, Your Honor.

[00:28:57] Speaker 00:
A couple of quick points.

[00:29:00] Speaker 00:
is not just the enhancement and speeding up of some abstract idea, just the same way that in Bascom, it wasn't just the enhancement and speeding up of filtering on the internet and the way in Amdocs, it wasn't just the enhancing and speeding up of correlating records on a network.

[00:29:16] Speaker 00:
Those were things that, yes, they sped things up and they enhanced things, but they also did things differently.

[00:29:23] Speaker 00:
It was a different arrangement of conventional components in both of those cases

[00:29:29] Speaker 00:
We have an arrangement of components that integrates the insurance, the health insurance, the payor, rules updated with the doctor's office in a way that had not been done before in real time with rules from the payor.

[00:29:44] Speaker 00:
And this is important using the claim edit screen, and I didn't get to talk about this as much in my opening, but the claim edit screen was one of the key novelty aspects, both in the initial prosecution and with the PTAB's decision

[00:29:57] Speaker 00:
for non-obviousness.

[00:30:00] Speaker 00:
It was an innovative interface that hadn't been used before in the context of the insurance industry that allowed the folks at the doctor's office to see in the same screen both the error and a way to correct it at the same time.

[00:30:16] Speaker 00:
And that hadn't been done before.

[00:30:19] Speaker 00:
This was one of the... I asked that question.

[00:30:22] Speaker 02:
So does it auto-correct or does

[00:30:26] Speaker 02:
Does it sometimes auto-correct when there's a typo?

[00:30:30] Speaker 00:
What the claim covers is on the same screen, it gives you an indication of the error and the ability to correct it.

[00:30:38] Speaker 00:
But it doesn't auto-correct.

[00:30:39] Speaker 00:
I don't believe it auto-corrects.

[00:30:43] Speaker 00:
So that's point two, the claim edit screen.

[00:30:47] Speaker 00:
Point three is this integration.

[00:30:49] Speaker 00:
The integration, it's spelled out.

[00:30:53] Speaker 00:
right there in the claims and how you take the rules from the payor and interact with the doctor's office.

[00:31:00] Speaker 00:
And it does it in a way that leaves many other unclaimed implementations that are not field of use things.

[00:31:07] Speaker 00:
But there are lots of different ways you can get rules from the insurance company.

[00:31:11] Speaker 00:
There are lots of different ways you could use an interface that allows you to receive those rules and work with them.

[00:31:16] Speaker 00:
But this is a very specific implementation.

[00:31:19] Speaker 03:
OK.

[00:31:19] Speaker 03:
All right.

[00:31:19] Speaker 03:
Thank you.

[00:31:20] Speaker 03:
I think we're out of time.

[00:31:21] Speaker 03:
Thanks both counsel, the case is submitted and that concludes our session for this morning.