[00:00:02] Speaker 03:
The first case for argument this morning is 161913 Autodex, North America versus Mitchell International.

[00:00:09] Speaker 03:
Mr. Yorks, whenever you're ready.

[00:00:16] Speaker 04:
I'm Dan Yorks.

[00:00:17] Speaker 04:
I'm a Raminello for Patent Owner Autodex.

[00:00:21] Speaker 04:
To this case, we have two sets of claims, one set from the 038 patent and another set from the 740 patent.

[00:00:30] Speaker 04:
And in the 038 patent, we have recited, amongst other things, calling a database containing vehicle values with an active server page.

[00:00:39] Speaker 03:
But let me ask you just about that one little point you said.

[00:00:41] Speaker 03:
They all rise and fall together, though, in this case.

[00:00:44] Speaker 00:
No.

[00:00:44] Speaker 03:
The two patents?

[00:00:45] Speaker 03:
No.

[00:00:46] Speaker 03:
There's a distinction, for example, on 101.

[00:00:48] Speaker 03:
Can we look at the 740 patent, or do we have to look at the 038 as well?

[00:00:52] Speaker 03:
And is there a difference?

[00:00:53] Speaker 04:
We see a distinction between the two.

[00:00:55] Speaker 04:
There's a different scope between the man who claimed the 740, 038,

[00:01:00] Speaker 04:
The 740 has the additional language about providing estimate data, parts list.

[00:01:07] Speaker 04:
Also, the dependent claims 3740, we cite two different active server pages.

[00:01:13] Speaker 04:
One pulls the valuation data, and the other pulls estimate data.

[00:01:17] Speaker 04:
So we've seen different scope, and including a different analysis on 101.

[00:01:24] Speaker 01:
What about the 038?

[00:01:26] Speaker 01:
What's the interesting distinction with that patent's claims?

[00:01:30] Speaker 04:
Well, none of the art disposes using ASP to actually call databases in a system where you're providing valuation reports.

[00:01:40] Speaker 04:
It's a unique, novel approach that wasn't done before.

[00:01:44] Speaker 01:
To get this particular kind of information.

[00:01:46] Speaker 01:
The ASP technology was already established.

[00:01:50] Speaker 04:
ASP was a product by Microsoft.

[00:01:52] Speaker 01:
Yes.

[00:01:52] Speaker 04:
And it had certain functions.

[00:01:54] Speaker 04:
One of them was rendering web pages, for instance.

[00:01:57] Speaker 04:
Another was calling databases.

[00:01:59] Speaker 01:
Right, so you're using that Microsoft technology to go get information that you're saying is novel because nobody had used this established ASP technology to get this kind of information.

[00:02:13] Speaker 01:
This kind of delivery system, that's correct.

[00:02:16] Speaker 01:
So that's really the question.

[00:02:18] Speaker 01:
Whether the character of your information that you're saying is novel with use with this ASP technology

[00:02:26] Speaker 01:
all of a sudden creates an inventive concept.

[00:02:31] Speaker 01:
This isn't getting information for ordering groceries or something like that.

[00:02:39] Speaker 01:
This is information about the value of a vehicle or information about replacement parts, the cost of certain replacement parts for a vehicle.

[00:02:50] Speaker 01:
So it's the character of that information that all of a sudden

[00:02:54] Speaker 01:
creates an inventive concept when used with established ASP technology.

[00:02:58] Speaker 01:
Is that your argument?

[00:03:00] Speaker 04:
Yeah, it is, because there's products that provide this kind of information.

[00:03:06] Speaker 04:
And there are certain systems.

[00:03:08] Speaker 01:
And I guess that's my concern with ultimately your case, is that I feel like we've had cases here.

[00:03:16] Speaker 01:
We've had dozens and dozens of 101 cases.

[00:03:18] Speaker 01:
And it's not clear to me why the character of the information, of the data,

[00:03:24] Speaker 01:
that's getting transmitted from node A to node B all of a sudden is enough to be considered an inventive concept when we're thematically seem to be more focused on how have you improved a computer or a computer network as a tool rather than using a computer as a tool to send data, collect data, retrieve data.

[00:03:55] Speaker 01:
regardless of what that data may be?

[00:03:57] Speaker 04:
Well, I think these systems are quite unique.

[00:04:00] Speaker 04:
They contain databases with tremendous amounts of data that's very complex algorithms to figure out the value of the vehicle.

[00:04:10] Speaker 04:
So it's kind of a niche area.

[00:04:12] Speaker 04:
And so the patent is really about creating an improved network.

[00:04:16] Speaker 02:
Right, but you don't claim any complex algorithms to create the databases.

[00:04:22] Speaker 02:
You simply say there's pages with data and then we can put them together using this ASP technology, right?

[00:04:30] Speaker 04:
Yeah, what I'm trying to describe is that these kind of systems are kind of unique.

[00:04:35] Speaker 04:
There's actually only three companies that even provide them, really.

[00:04:38] Speaker 04:
And so the path's really about improving the system for delivering this kind of information.

[00:04:45] Speaker 04:
That's what it's about.

[00:04:47] Speaker 02:
So but what is the delivery improvement versus the improvement in terms of the data that we're giving you?

[00:04:56] Speaker 04:
So as described in the background, the patent and the prior systems you had, you have an insurance adjuster who goes online with this product called PEMPRO.

[00:05:06] Speaker 04:
And there's a lot of graphics and so forth.

[00:05:09] Speaker 04:
And they can get an estimate.

[00:05:11] Speaker 04:
And then there's something inside the product that will

[00:05:15] Speaker 04:
give them what they call total loss warnings.

[00:05:17] Speaker 04:
Your estimate might be close to totaling the car.

[00:05:21] Speaker 04:
Then they have to go to a different system and dial in and get this vehicle valuation for totaling the total of the car.

[00:05:30] Speaker 04:
So that's really inconvenient.

[00:05:33] Speaker 04:
So what this technology does is merge those two systems into one interface and then utilizing ASP

[00:05:43] Speaker 04:
to allow for that merger.

[00:05:46] Speaker 02:
Okay, so what if in Alice, where they did the, they essentially did this, acted this intermediary between the two ends of the transaction, what if they had additional information that informed someone about more aspects of the value of the transaction, rather than just

[00:06:13] Speaker 02:
where the two come out and matching them up.

[00:06:15] Speaker 02:
Would that have changed the result in Alice?

[00:06:20] Speaker 04:
I'm not sure I understand the question.

[00:06:23] Speaker 04:
You're adding what to Alice?

[00:06:26] Speaker 02:
Well, if you added some additional information, some additional data that would improve what someone would be learning from that intermediary transaction.

[00:06:41] Speaker 04:
Yeah.

[00:06:42] Speaker 04:
I'm not sure I see the analogy.

[00:06:44] Speaker 04:
We're not adding additional data.

[00:06:47] Speaker 04:
We're utilizing a software tool, ASP, to come up with a better system for delivering the data.

[00:06:54] Speaker 04:
We've got new data in our code.

[00:06:57] Speaker 03:
But you're using conventional technology to achieve a result that the district court concluded was just an abstract principle.

[00:07:05] Speaker 03:
So I guess I'm having the same difficulty figuring out how your case is different than

[00:07:11] Speaker 03:
large number of other cases that we've gone the other way on under 101.

[00:07:16] Speaker 04:
Well, I don't know that, I don't think that ASP used in this way in this kind of system is conventional.

[00:07:23] Speaker 04:
It was a product, but I'm not sure, I'm not sure really what conventional means actually.

[00:07:27] Speaker 03:
But it's that- Well, maybe, well, I don't want to get into a debate over what it means, but maybe you look at the word inventive.

[00:07:35] Speaker 03:
What's inventive?

[00:07:36] Speaker 03:
The fact that you've decided to use ASP in this context?

[00:07:39] Speaker 03:
that that you think constitutes an inventive concept that satisfies step two?

[00:07:45] Speaker 04:
Yeah, you come up now with a new system that's merged to old systems and you're utilizing the software tool to get there.

[00:07:53] Speaker 04:
And that was never done before in this industry.

[00:07:59] Speaker 02:
With respect to your proposed amended claims, the board found both that they would have been obvious and

[00:08:09] Speaker 02:
that they added nothing to the 101 inquiry.

[00:08:14] Speaker 02:
Now, I understand that there is this issue about where the burden should have been placed.

[00:08:21] Speaker 02:
If in fact our court were to change the placement of the burden, isn't it true that we could still determine that the placement of the burden in this case might have been harmless?

[00:08:36] Speaker 02:
if we agree that there's nothing new that the amendments would have added, regardless of who had the burden.

[00:08:46] Speaker 04:
Yeah, I mean, I guess you could come to that result if you're saying it's still obvious.

[00:08:52] Speaker 01:
On Section 101, for example, I believe we've said it's a de novo inquiry.

[00:08:58] Speaker 01:
And I don't believe anybody here has been arguing there's some difficult underlying factual questions.

[00:09:04] Speaker 01:
in reaching the 101 question of what is the abstract idea for your proposed amended claims or and assuming there is it is focused on directed to an abstract idea of whether there's an inventive concept here I understand you're saying nobody had used ASP technology before to retrieve this particular kind of data but in the end if we were to conclude on a de novo review that there's

[00:09:34] Speaker 01:
this is not an inventive concept, then I want to make clear that it doesn't appear that who has the assignment of a burden of proof on a motion to amend seems to make sense or seems to matter.

[00:09:47] Speaker 04:
Yeah, there are no, I don't think there are any factual disputes in this particular case.

[00:09:52] Speaker 04:
Right.

[00:09:53] Speaker 04:
So I would agree with that.

[00:09:57] Speaker 04:
But by the way, so the board never addressed 101, the claims 37 and 40.

[00:10:04] Speaker 02:
It just did the obviousness analysis.

[00:10:10] Speaker 01:
In their section on the motion to amend, I thought they basically said they didn't see anything in the amendments that moved them off of their original view about the original patent claims.

[00:10:25] Speaker 04:
Yeah, they cited the independent claim which added the language about estimated data and parts list.

[00:10:33] Speaker 04:
and then make kind of a general comment like that.

[00:10:35] Speaker 04:
But they never did an analysis on 101 claims 37 and 40, which they did for the 03A pass.

[00:10:46] Speaker 04:
So it just seemed like the records void on their finding of 101 on those specific dependent claims.

[00:10:53] Speaker 02:
Right.

[00:10:53] Speaker 02:
On those two dependent claims, the board relied on its obviousness analysis.

[00:10:57] Speaker 02:
But on the motion to amend, it relied on both.

[00:11:02] Speaker 02:
It said it's either obvious or we find it also falls under 101.

[00:11:08] Speaker 04:
Yeah, but they never did an analysis on dependent claims 3740.

[00:11:14] Speaker 04:
They never said, well, gee, now you have this more unique design where you have one active page getting estimate data, another active page getting evaluation data, and looking at that to see if it is paneled subject matter.

[00:11:29] Speaker 04:
And they never did that analysis.

[00:11:32] Speaker 03:
And did you make an argument below as to those modest factors changing an analysis that there is otherwise an abstract idea?

[00:11:41] Speaker 04:
Right.

[00:11:42] Speaker 04:
Yes, we did.

[00:11:43] Speaker 04:
And because it's even more, it gets to a further implementation where you've got the estimate data is typically in a different database than the

[00:11:53] Speaker 04:
So now we have this architecture where we're pulling, with one active server page, the valuation data, and then another active server page, the estimate data.

[00:12:05] Speaker 01:
Could you give me a better explanation of what is it about the fact that your claim is discussing the use of an active server page to go get this data from the different databases, or a separate active server page for each database?

[00:12:23] Speaker 01:
Why that's an interesting twist?

[00:12:28] Speaker 04:
Yeah, because it's, well, let's take, since you look at the primary reference run, it has, I think it's called an appraisal computer, and then it has one database.

[00:12:39] Speaker 04:
So that's one way you could approach it.

[00:12:42] Speaker 04:
The exemplary embodiment of the patent, we have actually a different, we have an application server and evaluation server.

[00:12:49] Speaker 04:
And keep in mind, again, there's a tremendous amount of data in these things because you've got every single car, every model, every gear.

[00:12:57] Speaker 04:
So that architecture is more efficient.

[00:13:02] Speaker 04:
And so utilizing active server pages, two different ones to go to different servers improves the efficiency of the system.

[00:13:11] Speaker 01:
Then as opposed to, say, if you were just looking at a big book that had the valuation of each

[00:13:19] Speaker 01:
car for every make model year, having it in a database and then accessing the database through an active server page, that makes everything more efficient in your view.

[00:13:31] Speaker 04:
Well, we were talking about the CLAIM 37 where we have two different active server pages.

[00:13:36] Speaker 04:
We have one that goes to the application server and pulls the estimate data.

[00:13:42] Speaker 04:
And then we have another active server page that goes to the valuation server and pulls the valuation data for the value of the car.

[00:13:49] Speaker 04:
So it's not one big book.

[00:13:51] Speaker 04:
The estimate data for how much to repair your car, that's something, it's a different database, typically.

[00:14:00] Speaker 03:
We're well into rebuttals, so why don't we hear from the other side and say what they mean to you.

[00:14:11] Speaker 00:
Good morning, doctors.

[00:14:15] Speaker 00:
May I please speak for you?

[00:14:16] Speaker 02:
May I proceed?

[00:14:17] Speaker 02:
I'm sorry, can you start where he left off pretty much?

[00:14:21] Speaker 02:
Do you agree that the board never did a separate analysis with respect to those two dependent claims?

[00:14:28] Speaker 00:
I do not.

[00:14:28] Speaker 00:
I disagree with that.

[00:14:30] Speaker 00:
So as you pointed out, the board went through a complete 101 analysis for all the original claims and found why they did not satisfy the 101 threshold.

[00:14:42] Speaker 00:
They then looked at the amended claims, including all of them in the 740 patent, including 37 and 40, and concluded that nothing in those amendments added anything to the original claims that pushed them over the hurdle for 101.

[00:14:56] Speaker 00:
So if you see that, it's in appendix pages 34 and 35.

[00:15:00] Speaker 00:
I guess it goes back as far as 33.

[00:15:03] Speaker 00:
The Patent Trial and Appeals Board absolutely addressed all of the proposed substitute claims for the 740 patent and came to the right conclusions on those.

[00:15:10] Speaker 02:
So you view the obviousness analysis and inquiry as an alternative finding with respect to the amended claims?

[00:15:18] Speaker 02:
Absolutely.

[00:15:20] Speaker 00:
The Patent Trial and Appeals Board found both 101 and 103 as separate independent reasons to deny the substitute claims for both the 740 and the 03.

[00:15:29] Speaker 00:
And I think both of those, again, would be

[00:15:34] Speaker 00:
individual grounds to sustain what the patent trial that the appeals board has done.

[00:15:38] Speaker 00:
And I think that there's substantial evidence to support their conclusions for both of those.

[00:15:41] Speaker 02:
And if we find that ultimately placement of the burden with respect to a determination of patentability on the patent owner for motions to amend is improper, does that mean that we would need to send this back?

[00:16:01] Speaker 00:
No.

[00:16:02] Speaker 00:
I think the result here

[00:16:04] Speaker 00:
that you can reach is the same regardless of whether or not there was a misapplication of the burden of persuasion.

[00:16:11] Speaker 00:
If the in-rate aqua products case changes where the burden of persuasion is applied, then here I think you can still affirm for all the reasons you've said it and then probably more.

[00:16:24] Speaker 00:
I would suggest that the burden of persuasion and the allocation of it before the Patent Trial and Appeals Board did not affect the Patent Trial and Appeals Board decision.

[00:16:31] Speaker 00:
As you noted, there were factual findings that were supported by the record.

[00:16:35] Speaker 00:
And then the legal conclusions based upon those were not founded on the burden of persuasion.

[00:16:40] Speaker 00:
They were founded on the facts and the decisions that they came to.

[00:16:43] Speaker 00:
As you noted, Judge Chen, eligibility under 101 is a legal question that's reviewed de novo.

[00:16:49] Speaker 00:
And you've got all the factual underpinnings that you need here to reach the conclusion that you need to reach on Section 101 without need for remand.

[00:16:57] Speaker 00:
And under Section 103, that's a legal conclusion that's based upon underlying factual determinations.

[00:17:02] Speaker 00:
And here the Patent Trial and Appeals Board made the factual findings and then reached the legal conclusions based on those findings.

[00:17:08] Speaker 00:
I would suggest their factual determinations.

[00:17:10] Speaker 02:
So we could either say they were right in their placement of the burden or if we ultimately conclude they were wrong in their placement of the burden that it was essentially harmless error.

[00:17:19] Speaker 02:
That's right.

[00:17:20] Speaker 00:
And I don't think Auditex has really shown any prejudice resulting from the misapplied burden of persuasion here.

[00:17:26] Speaker 00:
And in fact, I would suggest that if the burden of persuasion was misapplied to Auditex below,

[00:17:32] Speaker 00:
I mean, that gave them every incentive to come forward with the best case they could, make all the arguments they could, and present all the facts they could.

[00:17:38] Speaker 00:
And I believe they did that.

[00:17:39] Speaker 00:
And based upon everything in the record, the patent trial appeals board came out in our favor on 101 and 103.

[00:17:45] Speaker 00:
So I don't believe that even if you find a misapplication of the burden of persuasion, that you need to revamp for any further considerations.

[00:17:54] Speaker 01:
So could you go to the actual content of proposed claims 37 and 40, which the other side

[00:18:03] Speaker 01:
believes that there is an inventive concept there in using one active server page to go get valuation report data from one database and then a second active server page to go to a second database to go get the cost estimate data for how much it would cost to repair a car.

[00:18:26] Speaker 01:
And combining those two things and drawing data from those two databases in that way

[00:18:33] Speaker 01:
creates an inventive concept.

[00:18:34] Speaker 01:
Can you comment on that?

[00:18:35] Speaker 00:
Absolutely.

[00:18:36] Speaker 00:
And I think the answer to that is clearly no.

[00:18:38] Speaker 00:
That simply using ASP, which you heard Council for Autotext admit was well-known conventional technology that existed in the marketplace.

[00:18:47] Speaker 00:
And I believe he also admitted that one of the known uses for ASP was to call a database and obtain information.

[00:18:53] Speaker 01:
Can you explain what ASP is?

[00:18:56] Speaker 00:
Sure.

[00:18:56] Speaker 00:
How does it work?

[00:18:57] Speaker 00:
Sure.

[00:18:57] Speaker 00:
ASP is an acronym for active server pages.

[00:19:01] Speaker 00:
And basically,

[00:19:02] Speaker 00:
Think of it as an embedded script or a piece of code in a web page.

[00:19:08] Speaker 00:
I think of, maybe if you think of the old original HTML type web page, if we go way back in time to maybe the mid-90s when the internet was new, and you had static web pages, sort of like a book.

[00:19:19] Speaker 00:
You open a book and the words don't change on it.

[00:19:22] Speaker 00:
What an active server page did is it allows you to embed some code in a page that would give you different access to different information.

[00:19:30] Speaker 00:
So when I open a web page,

[00:19:32] Speaker 00:
Instead of having a static HTML page, which every one of us would see the same page if we opened it, we then may see something different or some different content.

[00:19:40] Speaker 00:
And I think this is kind of what folks use if you're familiar with internet browsing, where it's always amazing to me when you open a web page, sometimes ads pop up for things that you've been looking at recently on the internet.

[00:19:51] Speaker 00:
I believe that they track information and they use that script in the web page to access the database and pull some information forward that's maybe specific to you.

[00:19:59] Speaker 00:
So this is a known and existing technology to access a database and present information to a user.

[00:20:05] Speaker 00:
And there was nothing unique about using ASP to retrieve the specific types of data that's involved in this case.

[00:20:13] Speaker 00:
I think your honor has asked him that question, and I don't believe any arguments were made in their briefs to say there's somehow something unique about the information related to vehicle valuations that requires some special type of ASP active server cages to call it.

[00:20:27] Speaker 00:
You didn't hear that argument from him and you don't see the degrees.

[00:20:31] Speaker 00:
I think the reason is because it is just data.

[00:20:33] Speaker 00:
The only argument we heard from Auditext Council was that's what's unique here is that there's large volumes of data.

[00:20:39] Speaker 00:
But just simply having large volumes of data does not make the retrieval of that information unique or somehow unconventional.

[00:20:44] Speaker 02:
What about his argument that it uses complicated algorithms to create the data?

[00:20:50] Speaker 00:
Well, so I agree with you.

[00:20:51] Speaker 00:
I think you made the comment that that's not anywhere in the claims.

[00:20:54] Speaker 00:
I mean, there may be some background processing that happens using some algorithm that's maybe, as he called it, complicated, but you do not see that reflected in the claims.

[00:21:02] Speaker 00:
Remember, the focus for the 101 inquiry is what's in the claims, not what's in the specification.

[00:21:07] Speaker 00:
And I would suggest if you look at the specification, there's not complex algorithms disclosed there either, but certainly not in the claims.

[00:21:13] Speaker 00:
So if we focus on what's actually in the claims here, there's absolutely nothing to support this idea that they get over the 101 hurdle because

[00:21:20] Speaker 00:
complex algorithms are somehow used in the background.

[00:21:22] Speaker 00:
It just simply is not there in the claims, which is what we have to focus on.

[00:21:26] Speaker 00:
So I see this as completely a conventional use of a conventional technology in a well-known manner that does not include existing technologies.

[00:21:35] Speaker 00:
And this lines up with many of the cases you've seen on data manipulation.

[00:21:41] Speaker 00:
We cited some of them in our brief, the electric power group case, in-rate TLI, affinity labs.

[00:21:47] Speaker 00:
There's many of them.

[00:21:48] Speaker 00:
that you have noted that deal with data manipulation, find that that type of claim does not get you over the Section 101 hurdle.

[00:21:57] Speaker 00:
Now, there are cases, and I want to touch on them briefly, such as Bascom and DDR, where this court has found that certain types of information in a claim can get you over the 101 hurdle.

[00:22:10] Speaker 00:
But in those cases, the consistent theme about all of them is that there was non-conventional use

[00:22:16] Speaker 00:
of technology in a non-conventional way to get an improvement in the technology itself.

[00:22:21] Speaker 00:
And what we have here distinguishes our case from those, because it is a use of conventional technology.

[00:22:26] Speaker 00:
ASP is conventional.

[00:22:28] Speaker 00:
It's using its conventional form, as I think Auditech's counsel admitted here today, and does not achieve any improvement of the computer processing itself.

[00:22:36] Speaker 00:
So for those reasons, this case is clearly distinguishable from BASCOM, DDR, and the other handful of cases in which you found Section 1.

[00:22:42] Speaker 01:
I guess the other side's retort would be, well,

[00:22:47] Speaker 01:
They're using this ASP technology to draw from two separate databases using two separate active server pages.

[00:22:55] Speaker 01:
And so somehow the combination of all that is the unconventional arrangement of technology.

[00:23:02] Speaker 00:
And I would have to disagree with that because, again, we know ASP exists.

[00:23:06] Speaker 00:
It was created by Microsoft for the specific purpose of pulling data from a database.

[00:23:11] Speaker 00:
And the fact that you're using two different pages to pull data from two different databases

[00:23:16] Speaker 00:
is not unique, it's not unconventional.

[00:23:17] Speaker 00:
In fact, it is the definition of conventional.

[00:23:20] Speaker 00:
So for that reason, we think that they can't pass the 101 hurdle here under either step one or step two.

[00:23:27] Speaker 00:
I want to transition, if I could, just to the obviousness piece so I can touch on that, because I do think that that's a separate independent ground that would give you basis to affirm the PTAB's decision.

[00:23:42] Speaker 00:
Now the Patent Trial Appeals Board concluded on a limitation by limitation basis that the proposed substitute claims were obvious, based on RIMAL as the primary reference, and other evidence establishing the prevalence of ASP active server pages generally, and also pre-existing use of ASP in the insurance industry before the Pats and Suites were viable.

[00:24:04] Speaker 00:
The board did not rely upon hindsight to find it was obvious to calculate the value of the vehicle just prior to being damaged.

[00:24:10] Speaker 00:
Rather, the patent trial appeals were relied upon RIMAL's disclosures that its system obtains pre-damages value.

[00:24:17] Speaker 00:
It went through and explained how you can actually use the system in RIMAL, which accesses database to return a value of a vehicle.

[00:24:25] Speaker 00:
The user has control over the information that's input about the vehicle.

[00:24:30] Speaker 00:
So if they want to get the value of a vehicle with damage, you can put damage in.

[00:24:34] Speaker 00:
You can say the bumper's been damaged, it's been scratched.

[00:24:36] Speaker 00:
If you want to value a vehicle without the damage, you simply do not put the damage in.

[00:24:40] Speaker 02:
OK, but the argument on the other side is going to be that Rymel at least doesn't expressly disclose reference to pre-damage value.

[00:24:51] Speaker 02:
So we have to assume that it flows logically.

[00:24:55] Speaker 00:
Yeah, I would disagree with that.

[00:24:56] Speaker 00:
At least, and this is on appendix page 800 and addressed in our brief at page 48 to 49,

[00:25:02] Speaker 00:
The default value, this has got drop down menus when you go component by component for the car to describe the condition.

[00:25:10] Speaker 00:
The default value in every instance for Rymal is no damage.

[00:25:14] Speaker 00:
You can actually see it says no damage.

[00:25:16] Speaker 00:
So if you put the make model year and other distinguishing information about the vehicle in and you do not do any adjustments, you are actually gonna get a value of that vehicle without any damage to any components.

[00:25:27] Speaker 00:
The user has to go in and component by component to describe the damage

[00:25:32] Speaker 00:
to get the value of the post-damage vehicle.

[00:25:35] Speaker 00:
So I would suggest that Rymal does disclose expressly getting a pre-damage value of the vehicle.

[00:25:41] Speaker 00:
And that's what I think both experts testified to and agreed to in this case.

[00:25:47] Speaker 01:
Both experts agreed to that?

[00:25:50] Speaker 01:
I mean, my understanding of Rymal was really Rymal's whole purpose of what he created, this product, was to try to

[00:25:59] Speaker 01:
figure out the estimate of the value of the car after it's been damaged.

[00:26:03] Speaker 01:
Rymel doesn't actually say anything about, let's try to figure out the value of the car before it got damaged, right?

[00:26:12] Speaker 00:
I think, well, again, there's a lot of different scenarios describing Rymel as to how that thing may be used, how the computer database system can be used by different folks who have different goals in mind.

[00:26:25] Speaker 00:
And for certain, our expert, Mr. Keebler, said,

[00:26:28] Speaker 00:
When I read everything that's in Rhino, as a person of ordinary skill in the arc who's been in this insurance industry, I understand certainly that I could use this tool to determine a pre-damage value of the vehicle that's been in an accident.

[00:26:42] Speaker 00:
For example, everything that I've told you right now, if you go through, enter make model year, engine size, and things like that, if you do nothing else, the default value you're going to get back is the value of the vehicle without any damage to any of the components.

[00:26:55] Speaker 00:
You have to actually go through and change it.

[00:26:57] Speaker 00:
So I think if you just look at that on its face, it tells you that you can get various types of values for a vehicle, including post-accident damage value and a pre-accident damage field.

[00:27:07] Speaker 00:
So I would disagree and say that it's only directed to providing vehicle valuations that include damage estimates or calculations.

[00:27:18] Speaker 00:
In terms of whether or not there's a motivation to combine, so I think RIMAL, the only thing that's missing from RIMAL, arguably,

[00:27:26] Speaker 00:
is the specific use of ASP active server pages.

[00:27:30] Speaker 00:
But the board did go through and address exactly why there is a motivation to combine.

[00:27:34] Speaker 00:
And that's found on appendix page 42.

[00:27:36] Speaker 00:
They actually explain why there is motivation to combine RIML with ASP.

[00:27:42] Speaker 00:
We also have Auditex's expert, so that's their expert, who said, we asked him the question.

[00:27:47] Speaker 00:
We said, quote, so someone would have been motivated to use ASP technology because it was really one of the only available technologies

[00:27:55] Speaker 00:
that could dynamically process content from web pages, right?

[00:27:59] Speaker 00:
And his answer was right.

[00:28:00] Speaker 00:
And add to that, that in the corporate environment, Microsoft was very strong.

[00:28:05] Speaker 00:
So people were often in the corporate environment, posting on Microsoft servers with IIS.

[00:28:11] Speaker 00:
So you've got all the Texas experts saying, yes, ASP was a well-known technology.

[00:28:17] Speaker 00:
If you were going to look to a way to use that technology to access databases, ASP is where you would have looked.

[00:28:24] Speaker 00:
And that's on appendix page 1372 and appendix page 3279.

[00:28:29] Speaker 00:
It's also noted in our brief on pages 52 to 53.

[00:28:33] Speaker 00:
And also on our page 53 of our brief, we've got statements, obviously, from our expert, Mr. Keebler, who agrees, explaining why ASP was well-known and would have been used in the industry.

[00:28:45] Speaker 00:
So when you consider all of that, the only thing that's arguably missing from RIMAL is ASP.

[00:28:50] Speaker 00:
Everything else the Patent and Trial Appeals Board found was in there.

[00:28:52] Speaker 00:
It's obvious to use ASP.

[00:28:54] Speaker 00:
And there's two other references that are shown.

[00:28:56] Speaker 00:
That combination was obvious.

[00:28:58] Speaker 00:
And therefore, it's additional reasons why you could affirm the Patent Tribal Appeals Board decision on the 101 ground.

[00:29:03] Speaker 00:
Unless you have any questions, I will sit down.

[00:29:05] Speaker 00:
Thank you.

[00:29:06] Speaker 00:
Thank you.

[00:29:17] Speaker 04:
I want to address the 103 issue.

[00:29:20] Speaker 04:
There were two references.

[00:29:23] Speaker 04:
used by the board that supposedly showed ASP used in insurance systems.

[00:29:29] Speaker 04:
One was the Business Wire article that discusses Mitchell's products.

[00:29:35] Speaker 04:
And ASP there is only mentioned in the title.

[00:29:39] Speaker 04:
There's not any description about how it's used, if they've been just used to render webpages like Stender.

[00:29:47] Speaker 02:
But it was clear it was used in the insurance industry, and it was known in the insurance industry from those references.

[00:29:52] Speaker 04:
Well, it's not clear.

[00:29:53] Speaker 04:
It just says ASP in the title.

[00:29:56] Speaker 04:
There's no discussion in the article at all how it's used.

[00:30:00] Speaker 02:
I mean, how it's used.

[00:30:01] Speaker 02:
But it was discussion that it was being used in the industry.

[00:30:05] Speaker 02:
And that's the only factual finding that the board made was that it was used and known in the industry.

[00:30:11] Speaker 04:
Right, but our claims are specific to using one aspect of ASP, which is to call databases.

[00:30:17] Speaker 04:
As I mentioned earlier, you can use it for rendering web pages, too.

[00:30:21] Speaker 04:
In fact, Dr. Westlin surmised that's probably how ASP was using it.

[00:30:25] Speaker 04:
They didn't count it with any evidence that they were using it to call databases.

[00:30:29] Speaker 02:
And what evidence did you present to show that your use of ASP was substantively different from any other previously known use of ASP?

[00:30:41] Speaker 04:
Well, again, the claims, for instance, in 3740, it's combining these two systems for estimates and valuations on a user software tool called ASP.

[00:30:54] Speaker 04:
And that was never done before.

[00:30:55] Speaker 04:
In fact, in the Mitchell article, they have an estimate system and they have a valuation system.

[00:31:02] Speaker 04:
This is on 3821, the very last paragraph.

[00:31:05] Speaker 04:
So they actually had two different systems.

[00:31:07] Speaker 04:
I don't know what they're using ASP for, but there's an example.

[00:31:10] Speaker 04:
of what the industry was doing back then.

[00:31:12] Speaker 04:
They had an estimate system, and they had a valuation system.

[00:31:15] Speaker 04:
And this claim convention was the first in the industry to combine those two into one, for one poro, or one point of access for the user.

[00:31:25] Speaker 01:
And why wouldn't that have been obvious?

[00:31:27] Speaker 01:
Just curious.

[00:31:28] Speaker 01:
Even though it may have been novel, why wouldn't it have been obvious to just combine the sources of data you get from PenPro and AutoSource

[00:31:38] Speaker 01:
And then call up the data in one shot.

[00:31:42] Speaker 04:
They're complex systems because, for instance, the insurance companies, who are primarily the customers, they all have their own requirements.

[00:31:52] Speaker 04:
For instance, the council is noting that the HTML, you get the same screen, but State Farm's going to have a different screen.

[00:31:59] Speaker 04:
They have different rules.

[00:32:00] Speaker 04:
They have different requirements than all states.

[00:32:04] Speaker 04:
So it's not just putting the two together.

[00:32:07] Speaker 04:
You had to come up with something.

[00:32:09] Speaker 04:
that would allow for these different requirements for the different customers.

[00:32:13] Speaker 02:
Can you point me to an explicit claim limitation that you're saying the board didn't consider and that you think differentiates your system from any prior use of ASP?

[00:32:27] Speaker 04:
Well, I'm going to stick with claims 3740, but the... But what in claim 3740?

[00:32:32] Speaker 02:
So give me a claim limitation that you think screams out.

[00:32:36] Speaker 04:
I'll give you two of them.

[00:32:38] Speaker 04:
You've got a valuation system that's also giving you estimate data.

[00:32:42] Speaker 04:
That's not in the ARC.

[00:32:44] Speaker 04:
And then also claims 3740, the ARC doesn't show two different active server pages, one getting estimate data, the other getting valuation data.

[00:32:55] Speaker 04:
So those are the particular limitations.

[00:33:00] Speaker 02:
You didn't present any evidence of objective indicia below, did you?

[00:33:06] Speaker 04:
We did.

[00:33:07] Speaker 02:
Some.

[00:33:08] Speaker 02:
You did?

[00:33:08] Speaker 02:
Yes.

[00:33:09] Speaker 02:
And you're just saying the court just never addressed it?

[00:33:13] Speaker 04:
Correct.

[00:33:16] Speaker 02:
OK.

[00:33:19] Speaker 03:
Thank you.