[00:00:00] Speaker ?:
Okay.

[00:00:14] Speaker ?:
Okay.

[00:00:30] Speaker 04:
Mr. Freel, you may proceed.

[00:00:35] Speaker 04:
Thank you and good morning.

[00:00:36] Speaker 04:
Tom Freel for Service View Technologies.

[00:00:39] Speaker 04:
We're here because the District Court made fundamental errors in reaching its decision on Section 101.

[00:00:46] Speaker 04:
In Step 1, the Court rejected consideration of technological improvements over conventional locates as irrelevant.

[00:00:55] Speaker 04:
He cited a single case, a District Court case, that was later overturned.

[00:01:01] Speaker 04:
Second error is that in step one, the district court failed to consider the claims as a whole in deciding what the claims are directed to.

[00:01:12] Speaker 04:
Instead, he distilled the claims to their sentence.

[00:01:15] Speaker 05:
In the red break at 40 and 41, they quote statements made by Curtis Gew during the district court proceedings that contradict your three essential claim constructions you're arguing for before this court.

[00:01:31] Speaker 05:
Why don't those quotes directly contradict your position?

[00:01:35] Speaker 05:
And similarly, why don't your slides that were presented to the district court during your claim construction tutorial also not directly contradict your claim constructions before us today?

[00:01:47] Speaker 04:
The claim constructions that were advocated in the district court were plain and ordinary meaning.

[00:01:52] Speaker 04:
There is no basis for the court's finding and equating geographical coordinates of a 2 to 4 inch paint mark on the ground

[00:02:00] Speaker 04:
with the address of the location.

[00:02:03] Speaker 04:
That is not a position that we advocated for.

[00:02:05] Speaker 04:
I don't believe anyone advocated for.

[00:02:07] Speaker 04:
That is clearly, with that construction, that's clearly fair game.

[00:02:13] Speaker 04:
The same is true with the other two constructions that are essential.

[00:02:16] Speaker 04:
What we have is a later decision by the district court refining the constructions in some cases and others contradicting them.

[00:02:28] Speaker 04:
They have become law of the case.

[00:02:30] Speaker 04:
They've become something that was not appealed from, and they are constructions that I think we're all bound by.

[00:02:38] Speaker 04:
They've not been challenged by S&N.

[00:02:41] Speaker 04:
And we have many cases that hold that claims are not noses of wax to be distorted, depending on the purpose.

[00:02:50] Speaker 04:
So whether we're talking about infringement or invalidity and equitable conduct, the claims have to mean the same thing.

[00:02:57] Speaker 04:
The latest, most complete word from the court on what the claims mean are the three essential limitations, as the court said, were required to use that language repeatedly in the trial order.

[00:03:10] Speaker 04:
And I think that's what we have to follow.

[00:03:13] Speaker 04:
And that's what we have to apply.

[00:03:15] Speaker 04:
And that shows, in fact, why the constructions in the 101 phase were wrong.

[00:03:20] Speaker 04:
I could go on on that, but I think that encapsulates it.

[00:03:27] Speaker 02:
You're saying there's some kind of technological improvement here.

[00:03:30] Speaker 02:
And I guess the question in my mind is, why can't the claim be understood as performing a pre-existing abstract process using a computer as a tool to help carry out that abstract process?

[00:03:49] Speaker 02:
In the same way that, for example, Alice, Supreme Court found that

[00:03:54] Speaker 02:
Okay, there's some super powerful computer in that claim that's going to be handling the intermediated settlement of a lot of currency exchange transactions throughout the day and making sure that they're done securely.

[00:04:11] Speaker 02:
Why isn't this your claim?

[00:04:14] Speaker 02:
Similar in the sense that, yes, there's a computer involved for receiving data

[00:04:21] Speaker 02:
manipulating the data to create a final end product that describes and depicts a locate operation, but in the end, it's just merely using conventional technology as a tool to carry out the abstract process.

[00:04:41] Speaker 04:
I think this case is far more like the Thela's case.

[00:04:44] Speaker 04:
Recently decided

[00:04:46] Speaker 04:
in that we have conventional elements, but they're put together in a new way.

[00:04:50] Speaker 04:
What the court did here is fail to, it took each element individually and said it's conventional.

[00:04:56] Speaker 04:
The court failed to consider the unique combination of the elements, and that is the fundamental part of the invention.

[00:05:03] Speaker 04:
Now, you ask, you say, well, isn't this all in the art before?

[00:05:07] Speaker 04:
And the answer is no.

[00:05:09] Speaker 04:
We know that the closest prior art was the hand

[00:05:12] Speaker 04:
art, at least to take the judge's view in 101.

[00:05:15] Speaker 04:
We don't believe that was the case.

[00:05:16] Speaker 04:
But the, the, that art did not include the steps that are part of the claims.

[00:05:24] Speaker 04:
So you have to look at the new steps and say these weren't included in the prior art.

[00:05:29] Speaker 04:
Therefore, it's not just a computerization of it.

[00:05:32] Speaker 04:
The next observation I would make is the closest prior art, which was advocated by SNN and accepted by the court in the trial findings.

[00:05:40] Speaker 04:
was computerized prior art, computerized locate prior art.

[00:05:45] Speaker 04:
And the court found that, on examination, the claims in question were patently distinct from that closest prior art.

[00:05:52] Speaker 04:
In other words, they didn't just take a general computer and take what was in the art before and change it.

[00:05:58] Speaker 04:
The court said, no, the Certus Vue art is different.

[00:06:03] Speaker 04:
It is an improvement at least in three key ways.

[00:06:07] Speaker 04:
The first was the ability to

[00:06:09] Speaker 04:
actually locate with the geographical coordinates the paint marks that are on the ground, the two to four inch marks.

[00:06:15] Speaker 04:
There's absolutely no evidence that that was part anything in the prior art.

[00:06:19] Speaker 02:
Okay, so let's assume for the moment that your inventor was the first one to decide to include geographic coordinates in the locate operation document.

[00:06:34] Speaker 02:
But it was already conventional to include all kinds of

[00:06:39] Speaker 02:
descriptive information about the locate operation.

[00:06:43] Speaker 02:
And now you've included another type of descriptive information.

[00:06:48] Speaker 02:
So I guess we're talking about latitude and longitude coordinates, I assume.

[00:06:53] Speaker 04:
In other types of coordinates.

[00:06:55] Speaker 02:
Okay, but calculating latitude and longitude coordinates have been done long before the invention of the GPS.

[00:07:05] Speaker 02:
I guess what I'm saying is

[00:07:07] Speaker 02:
You know, we already knew the idea of including a property address and the name of the locate technician and the date and other supplemental information to describe the locate operation.

[00:07:21] Speaker 02:
And now there's an additional piece of information.

[00:07:27] Speaker 02:
The latitude and longitude coordinates you're adding to that final document.

[00:07:33] Speaker 02:
I guess I wonder why is an extra

[00:07:37] Speaker 02:
type of information that's in the same category as describing the locate operation, create an inventive concept?

[00:07:47] Speaker 04:
Well, the trial court has found that that is an inventive concept, that that is novel over the closest prior act.

[00:07:53] Speaker 02:
So I think we have that as... Wouldn't you go so far as to say the trial court found it was an inventive concept?

[00:07:59] Speaker 02:
If the trial court had found it was an inventive concept, then you would have cleared step two of the ALIS two-step framework.

[00:08:05] Speaker 05:
Where does he say that?

[00:08:07] Speaker 05:
Where does the trial court say this is an inventive concept?

[00:08:10] Speaker 04:
Well, that's a good question.

[00:08:12] Speaker 04:
I can't.

[00:08:13] Speaker 04:
I may be overcharacterizing.

[00:08:15] Speaker 04:
I accept that.

[00:08:16] Speaker 04:
But the court found that the claims were not invalid under 103 or 102 over the prior art.

[00:08:25] Speaker 03:
They are different.

[00:08:26] Speaker 03:
But all that means is the prior art doesn't have this stuff in it.

[00:08:29] Speaker 03:
But if the prior art is completely invalid, too, the fact that you add more invalid pieces doesn't make yours patent-eligible.

[00:08:38] Speaker 04:
But it shows that there are additional steps that were not in the prior art.

[00:08:43] Speaker 04:
So we're not merely computerizing what was before.

[00:08:45] Speaker 03:
So the answer for... But if there's still ineligible steps, if they're still just adding more types of information, and adding information to a map is ineligible, then the fact that it's different from the prior art seems to be

[00:08:59] Speaker 03:
It's not a very helpful point for you to be making.

[00:09:02] Speaker 04:
Well, the court completely ignored the fact that these were technological improvements over the prior.

[00:09:11] Speaker 04:
I refuse to credit them.

[00:09:12] Speaker 02:
And the reason that... I know you want to say it's a technological improvement.

[00:09:17] Speaker 02:
I understand that much.

[00:09:19] Speaker 02:
But let's drill down a little bit more.

[00:09:21] Speaker 02:
What is the technological improvement in the claims?

[00:09:26] Speaker 02:
Let's look at the claim and highlight for me the technological improvement.

[00:09:32] Speaker 02:
Let's look at the 359 patent, for example, claim one.

[00:09:52] Speaker 04:
I'm at appendix 281.

[00:09:54] Speaker 04:
So what

[00:09:55] Speaker 04:
We have to look at all of the limitations that are added, and not just one such as geographical coordinates, but the technical improvements to the prior art are adding a displayed aerial image, adding at least one digital representation of one physical locate mark.

[00:10:14] Speaker 04:
In other words, the two to four inch paint mark on the ground.

[00:10:17] Speaker 04:
That had not been done before.

[00:10:19] Speaker 04:
That we contend is an innovation included in the claims.

[00:10:22] Speaker 04:
What do you mean it hadn't been done before?

[00:10:25] Speaker 04:
There had, no one had taken in a prior art, in a hand-drawn art, and there's no finding from anyone, that anyone had taken and found a means to locate a two to four inch paint mark, which is important for liability and other purposes to document the... What inch mark?

[00:10:51] Speaker 04:
What?

[00:10:51] Speaker 04:
So what we are recording on the ground are

[00:10:54] Speaker 04:
And you can see it on the brief.

[00:10:56] Speaker 04:
In the blue brief, there is a picture.

[00:10:58] Speaker 05:
Couldn't you locate that 2 to 4-inch paint mark looking at the hand-drawn map by simply seeing where the line's drawn and going over and looking for a 2 to 4-inch paint mark?

[00:11:10] Speaker 04:
Well, that's a cartoon, essentially.

[00:11:13] Speaker 04:
And it doesn't allow you the end of the invention.

[00:11:16] Speaker 04:
The improvement is to be able to recreate the locate after the marks have been destroyed, after they've been dug up, or after a gas explosion.

[00:11:24] Speaker 04:
So the entire innovation here is to be able to effectively recreate where the marks were placed.

[00:11:31] Speaker 05:
Would a photograph do the same thing?

[00:11:34] Speaker 04:
A photograph would not do the same thing.

[00:11:36] Speaker 04:
And the reason is that it is a question of angle of perspective and many difficulties with that.

[00:11:45] Speaker 04:
There's no geo-encoding.

[00:11:47] Speaker 04:
There's no way to find the coordinates of the paint marks themselves from a photo.

[00:11:52] Speaker 02:
It's not clear to me that that's in this claim.

[00:11:54] Speaker 02:
This claim is just talking about an aerial image.

[00:11:59] Speaker 04:
Well, it says adding to an aerial image at least one digital representation of at least one physical locate mark.

[00:12:06] Speaker 04:
That's a paint mark.

[00:12:08] Speaker 02:
But couldn't that include I climb up a tree with my phone and take a photo?

[00:12:16] Speaker 02:
of the locate operation area?

[00:12:18] Speaker 02:
And that would be an aerial image?

[00:12:22] Speaker 04:
Well, I'm not sure what an aerial image is, but allowing that for a minute, sure, that would be an aerial photo of the marks on the ground.

[00:12:28] Speaker 02:
It would be an image that was from the air.

[00:12:31] Speaker 02:
Right.

[00:12:31] Speaker 04:
But we don't want to miss the other limitations.

[00:12:33] Speaker 04:
That's exactly the problem with the judge's 101 decision.

[00:12:37] Speaker 04:
He did not take the claims as a whole.

[00:12:40] Speaker 04:
In isolation, he looked at each one, and he didn't look at the net effect.

[00:12:43] Speaker 03:
But how do you not take them?

[00:12:45] Speaker 03:
I mean, we have to talk about them in language, so we have to talk about them separately.

[00:12:50] Speaker 03:
So we're going to go through each of them, and we're going to say, does this have any eligibility?

[00:12:58] Speaker 03:
Or does it add any eligibility?

[00:13:00] Speaker 03:
Right.

[00:13:00] Speaker 03:
If they're all just adding information to a map, and we start from the premise that putting information on a map is not an eligible idea, it doesn't matter how many of them you put together, or how many different steps, or how you combine them.

[00:13:13] Speaker 03:
It's all just putting information on a map.

[00:13:16] Speaker 04:
It's new information.

[00:13:17] Speaker 04:
So in sales, it was just taking information.

[00:13:19] Speaker 03:
It could be the newest information in the world, but putting information on a map is not an eligible concept.

[00:13:26] Speaker 03:
I don't see how under any of our precedent, under any of the Supreme Court precedent, that's at all eligible.

[00:13:33] Speaker 03:
I mean, you could add the local bar on this map because after they finish all their work, they want to go get a beer.

[00:13:39] Speaker 03:
That's new information.

[00:13:40] Speaker 03:
I bet nobody's ever put that kind of information on a map.

[00:13:43] Speaker 03:
But that can't make it a patent-eligible concept, can it?

[00:13:48] Speaker 04:
I would agree with Your Honor, but this is not just information on a map.

[00:13:52] Speaker 04:
That is the characterization that I have a problem with.

[00:13:55] Speaker 04:
It doesn't include electronically searching, having a searchable file within for the information.

[00:14:02] Speaker 04:
That's very important.

[00:14:03] Speaker 04:
That's not putting information on a map.

[00:14:05] Speaker 04:
You're in your rebuttal time.

[00:14:07] Speaker 04:
Thank you.

[00:14:08] Speaker 04:
I'll save my time.

[00:14:12] Speaker 01:
Good morning, Your Honor.

[00:14:29] Speaker 01:
I'm Dan O'Connor with Baker McKenzie, and I'm here for SNN, the Epole.

[00:14:36] Speaker 01:
First, I'd like to comment on a couple of points that came up in your argument thus far.

[00:14:43] Speaker 01:
on the topic of geographic coordinates and how this relates to what had been done before.

[00:14:48] Speaker 01:
We know what had been done before is that it was done by hand.

[00:14:53] Speaker 01:
The best statement of that is in the specification of all the patents that we have.

[00:15:11] Speaker 02:
this is the case is this is the question is if we accept that what has been invented here is generation better locate operation record more precise more accurate for using digital photo technology gps then why isn't that

[00:15:40] Speaker 02:
an application of pre-existing technology for a new good use?

[00:15:50] Speaker 01:
Well, I think it's applying computer technology.

[00:15:55] Speaker 01:
Generic computers, generic software, generic hardware.

[00:15:58] Speaker 01:
The specification makes clear.

[00:16:00] Speaker 01:
You can use any kind of software and hardware to do these.

[00:16:03] Speaker 01:
And there's no non-generic

[00:16:06] Speaker 01:
ordering or relationship between the hardware components here.

[00:16:12] Speaker 01:
It's using generic hardware and software to document a locate operation, something that had always been done by hand.

[00:16:22] Speaker 02:
But let's just accept that this is a better product of

[00:16:30] Speaker 02:
of depicting a locate operation, and also giving extremely precise and accurate data as to the location of the locate operation in a way that definitely wasn't done before.

[00:16:44] Speaker 02:
Everything else was maybe more done by hand and by eye, and now we have something that is as scientifically precise as you could possibly get it, thanks to these geographic coordinates, thanks to the markup of a digital photo.

[00:17:01] Speaker 02:
Why can't we look at the claim now as, yes, perhaps each independent piece of technology is pre-existing and conventional, but now they've been put together in a way that creates this better result in doing these records.

[00:17:21] Speaker 01:
Well, because you can do something, you might be able to do something more precisely with a computer than you can do it by hand.

[00:17:28] Speaker 01:
It doesn't make it patentable.

[00:17:29] Speaker 01:
Because you can search better.

[00:17:31] Speaker 01:
a document that's electronic and created by computers doesn't make it patentable.

[00:17:37] Speaker 01:
These patents are essentially about electronic record keeping.

[00:17:42] Speaker 01:
The record is what happened in a locate operation, where the marks were placed, who did it, the date it was done, this kind of detail.

[00:17:50] Speaker 01:
It was all done by hand heretofore.

[00:17:53] Speaker 01:
And they could have been as precise as they wanted to be the locate operator.

[00:17:58] Speaker 01:
He could have entered

[00:18:00] Speaker 01:
the GPS court.

[00:18:01] Speaker 01:
He could have entered the Longitude and Latitude if he wanted to.

[00:18:04] Speaker 01:
You could do that.

[00:18:06] Speaker 01:
The testimony here as to how they came up with this invention is the CEO of their company was doing a run and he was wearing a Garmin watch and he realized that the Garmin watch was tracking his Longitude and Latitude as he ran along.

[00:18:26] Speaker 01:
He thought, well we can use that

[00:18:28] Speaker 01:
to document locate operations, to more precisely note where the paint marks are on the ground.

[00:18:37] Speaker 01:
They didn't invent that.

[00:18:38] Speaker 01:
That's not patentable.

[00:18:40] Speaker 01:
Okay, what Alice made the point that electronic record keeping is one of the most basic functions of computers, and that's at 134 Supreme Court at 2539.

[00:18:53] Speaker 01:
Electronic record keeping, that's what these patents are about.

[00:18:58] Speaker 01:
They don't improve the performance of a computer.

[00:19:03] Speaker 01:
They don't require any at all special hardware or software.

[00:19:11] Speaker 01:
The statements about, the open-ended statements in the specification about, first of all the claims don't say anything about how to perform these methods or how to make these systems.

[00:19:23] Speaker 01:
They just include functional

[00:19:26] Speaker 01:
limitations, and generic references to hardware and software.

[00:19:33] Speaker 01:
For example, electronically receiving, electronically transmitting, a communications interface, a display device, a processing unit, electronically receiving, combining the electronically received image with image-related information, displaying on a display device at least one digital image.

[00:19:54] Speaker 01:
This is as generic as it gets.

[00:19:57] Speaker 01:
In the specification, they emphasized that they're not limited to any hardware or software, or any arrangement of hardware and software.

[00:20:09] Speaker 01:
Here are some statements.

[00:20:12] Speaker 01:
This is about some hardware.

[00:20:15] Speaker 01:
The communication interface, 370, may include any transceiver-like mechanism that enables user device 210 to communicate with other devices or systems.

[00:20:25] Speaker 01:
That's from the 204 patent, appendix 233.

[00:20:29] Speaker 01:
It's also found in the 359 patent, the same language, at appendix 275.

[00:20:34] Speaker 01:
It's found in the 344 patent at 298, appendix 298, and it's found in the 341 patent at 236, appendix 236.

[00:20:42] Speaker 01:
Another statement about the memory components.

[00:20:45] Speaker 01:
Memory 330 may include a random access memory, a RAM, a read-only memory, a ROM,

[00:20:50] Speaker 01:
a memory card, a magnetic and or optical.

[00:20:52] Speaker 02:
We understand all of that.

[00:20:55] Speaker 02:
I mean why don't you just focus on the idea that these people came up with taking a digital aerial photo and then a GPS.

[00:21:07] Speaker 01:
Well the precision of the geographic coordinates and how that relates to patentability was before the district court and it is discussed

[00:21:19] Speaker 01:
in the ruling that's on appeal and this is what Judge Davis said on that very point.

[00:21:25] Speaker 01:
This is Appendix 76.

[00:21:30] Speaker 01:
Although geographic coordinates corresponding to the physical locate marks might differ in detail from a sketch identifying the approximate location of the locate marks, such information does not differ in kind.

[00:21:45] Speaker 01:
And he went on to say that doesn't transform

[00:21:48] Speaker 01:
an invention that doesn't constitute an inventive concept.

[00:21:53] Speaker 01:
It's not transformation.

[00:21:54] Speaker 03:
And it might not differ if you take a very careful reading of where you are and you draw a map to scale.

[00:22:01] Speaker 01:
The locate operators were on the scene.

[00:22:02] Speaker 01:
They're sophisticated workmen.

[00:22:05] Speaker 01:
They could have precisely recorded where they made the marks.

[00:22:10] Speaker 01:
They could have taken a picture and they did take pictures of what they did.

[00:22:12] Speaker 01:
How is that not a record?

[00:22:15] Speaker 01:
And all these people have done

[00:22:18] Speaker 01:
is that they're attempting to patent doing this electronically with a computer, making an electronic record of what had been done by paper heretofore.

[00:22:29] Speaker 01:
Now, you know, the specification says, it will be, and this is in all five patents, it will be apparent that aspects as described above may be implemented in many different forms of software, firmware, and hardware,

[00:22:48] Speaker 01:
in the implementations illustrated in the figures.

[00:22:51] Speaker 01:
The actual software code or specialized control hardware used to implement these aspects is not limiting of the descriptions provided herein.

[00:22:59] Speaker 01:
Thus, the operation and behavior of the aspects were described without reference to the specific software code.

[00:23:05] Speaker 01:
It being understood that software and control hardware can be designed to implement the aspects based on the description herein.

[00:23:13] Speaker 01:
That's from the 204 patent and appendix 241, and it appears in all five patents as well.

[00:23:19] Speaker 01:
So what they're saying here when they say, we're not limited to the hardware and the software, any particular one, and it's understood that you can choose or design hardware that will do this.

[00:23:31] Speaker 01:
You can write software that will do this.

[00:23:32] Speaker 01:
And what they're saying is, we own it.

[00:23:34] Speaker 01:
If you do that, that's preemption.

[00:23:36] Speaker 01:
That's the definition of preemption.

[00:23:38] Speaker 01:
They're preempting somebody making an electronic record of a locate operation.

[00:23:42] Speaker 01:
That's what they're trying to do.

[00:23:44] Speaker 01:
Now, they're saying, well, we'll be more precise.

[00:23:50] Speaker 01:
A locate operator can be very precise in the field.

[00:23:54] Speaker 01:
And being more precise doesn't make it patentable.

[00:23:56] Speaker 01:
Being more precise as you can with conventional known tools doesn't make it patentable.

[00:24:02] Speaker 01:
And that's what they've done here.

[00:24:04] Speaker 01:
That's what was found below.

[00:24:05] Speaker 01:
What they're trying to do now on appeal is claim that the inequitable conduct trial produced evidence and purported claim constructions which they think

[00:24:18] Speaker 01:
calls for a different look on inequitable conduct, I mean, on patentability.

[00:24:22] Speaker 01:
And, you know, first of all, they went back to the district court after the inequitable conduct trial, and they filed a motion reconsideration, and they said, we think that the evidence from the inequitable conduct trial, all extrinsic, of course, should result in a different answer on patentability.

[00:24:42] Speaker 01:
And the court said, absolutely not.

[00:24:44] Speaker 01:
We don't find anything that

[00:24:48] Speaker 01:
that none of the evidence at the Inequitable Conduct Trial changes the result on patentability.

[00:24:57] Speaker 01:
The court said as follows, and this is at Appendix 120, Sertisview has not demonstrated that reconsideration is warranted on the grounds that the subsequent bench trial in this case produced evidence that was substantially different from the evidence available at the time the court resolved SNN's motion for judgment of pleadings.

[00:25:14] Speaker 01:
So the arguments they're making here

[00:25:16] Speaker 01:
about what happened at the inequitable conduct trial and the evidence there should change the result.

[00:25:20] Speaker 01:
That was presented to Judge Davis, the judge who heard all that evidence and made this decision.

[00:25:25] Speaker 01:
He said it does not.

[00:25:27] Speaker 01:
And their arguments about new claim constructions in this court, pardon me, in the trial order are just unsupported.

[00:25:38] Speaker 01:
I call attention in the record to page 33 of their brief.

[00:25:47] Speaker 01:
They talk about three essential claim limitations.

[00:25:53] Speaker 01:
One that are now required in the claims, the first being a high resolution manifest constructed from high resolution base image.

[00:26:00] Speaker 01:
And they say this is required by all the claims.

[00:26:03] Speaker 01:
First of all, it's not recited anywhere.

[00:26:05] Speaker 01:
It's not recited in any claim.

[00:26:08] Speaker 01:
And the judge never said it was required.

[00:26:11] Speaker 01:
Here's what they say.

[00:26:12] Speaker 01:
The district court found that all appeal claims recite a high resolution manifest

[00:26:17] Speaker 01:
constructed from a high-resolution base image.

[00:26:21] Speaker 01:
There's sight for that.

[00:26:22] Speaker 01:
They've got a long string sight.

[00:26:23] Speaker 01:
The first sight is an accurate sight.

[00:26:27] Speaker 01:
It quotes the court as follows, as saying this.

[00:26:29] Speaker 01:
Generally, input images may be of sufficient resolution at an optimal elevation to be useful as a record of the locate operation.

[00:26:40] Speaker 01:
So all the judge said is, the resolution you need is what's sufficient to be a good record.

[00:26:47] Speaker 01:
They do quote that, and then they go on to, but they say that that supports the proposition that high resolution is what's required.

[00:26:55] Speaker 01:
It's just not supported.

[00:26:58] Speaker 01:
All the rest of the sites in this string site here on the bottom of 33 and almost all of 34 are citations to trial evidence, to expert witnesses talking all extrinsic.

[00:27:10] Speaker 01:
And again, we know that the 101 analysis is claim-centric.

[00:27:13] Speaker 01:
It starts with claims.

[00:27:15] Speaker 01:
But this notion that they put forth,

[00:27:17] Speaker 01:
about all the claims require high-resolution images high-resolution manifest and the court has found this it's not in the record doesn't make any difference i'd picked up that you know i mean if we if it did even if the court did say that a high-resolution ariel image and then these claims are about the camera or the device that

[00:27:47] Speaker 03:
creates the image, it's about using that technology to collect, record, and electronically store that information.

[00:27:57] Speaker 01:
Right.

[00:27:57] Speaker 01:
Even if they're wrong when they say the court reconstrued the claims in this way.

[00:28:01] Speaker 01:
It's not supported in the record at all.

[00:28:04] Speaker 01:
But even if they were right, even if the court, even if this court wanted to or was of a mind to read in the claims these limitations that they now argue, it still wouldn't change the result.

[00:28:17] Speaker 01:
The difference between high resolution manifest and a manifest with sufficient resolution, that's not an inventive concept.

[00:28:31] Speaker 01:
They didn't invent high resolution anything.

[00:28:35] Speaker 01:
On the searchability of the record, they're now arguing that what the court said is, based on what the court said at the trial order,

[00:28:46] Speaker 01:
that the searchability must be, you must be able to search to look for, in the electronic record, search by where is the locate mark located.

[00:28:55] Speaker 01:
So you can envision an electronic document with fields.

[00:28:59] Speaker 01:
And there might be a field for the location of the locate marks.

[00:29:04] Speaker 01:
They say you have to be able, the searchability of the record must be that precise.

[00:29:08] Speaker 01:
Now the claims don't say anything about that.

[00:29:10] Speaker 01:
The judge didn't say that's necessary.

[00:29:13] Speaker 01:
And at the trial level,

[00:29:16] Speaker 01:
they argue searched electronic record to be given explain ordinary me now they're arguing for very specifically but even if they got that mean even if it's a question okay i'll give you that precisely that doesn't make it patentable they didn't invent the ability uh... and the same is true for uh... geographic coordinates even if they got their definition that that would make it thank you very much

[00:29:52] Speaker 04:
The invention is not a map and a GPS.

[00:29:54] Speaker 04:
It's an electronic manifest that allows different functionality than a map.

[00:29:58] Speaker 04:
It allows a recreation of a locate.

[00:30:00] Speaker 04:
A map can't do that.

[00:30:01] Speaker 04:
It allows higher precision of the kind of innovation that fails to recognize what could be inventive.

[00:30:08] Speaker 04:
It's an improvement over the prior art that's clear from the trial record and the evidence they're in.

[00:30:13] Speaker 04:
And this is not... Why can't a map allow a recreation of a locate?

[00:30:20] Speaker 04:
I don't know of a map that can do that.

[00:30:22] Speaker 04:
I've never seen that.

[00:30:23] Speaker 04:
This has specific claims.

[00:30:26] Speaker 05:
So if I'm trying to determine where a minefield was laid and I have the grid coordinates, I can't start with those grid coordinates and terrain features and determine exactly where it is?

[00:30:40] Speaker 04:
Well, that's a map of an underground facility.

[00:30:42] Speaker 04:
This is an electronic manifest of a locate operation.

[00:30:47] Speaker 04:
done for different purposes, and it has an inventive concept in doing that before these marks were not put to scale, they were not put in a way that you could reproduce them and recreate them.

[00:31:01] Speaker 04:
They weren't searchable electronic records, they weren't aerial images, they weren't adding digital representations, all the things in the claims.

[00:31:08] Speaker 04:
And it would be oversimplifying them to call them electronic map plus a GPS.

[00:31:15] Speaker 04:
And there are many cases from the court where technological improvements over the conventional art were made.

[00:31:21] Speaker 04:
And the result is, under step one, Patent Eligible McRoe and Fish DDR.

[00:31:25] Speaker 04:
There are eight of them.

[00:31:27] Speaker 04:
Thank you.

[00:31:28] Speaker 04:
Thank you very much.

[00:31:29] Speaker 05:
These matters will stand submitted.

[00:31:31] Speaker 05:
Thank you.