[00:00:01] Speaker ?:
the the the the the

[00:00:35] Speaker 03:
Okay, the next argued case is number 16, 2716, Creative Technology Limited against the International Trade Commission, Mr. Baker.

[00:00:59] Speaker 05:
Yes, good morning, Your Honors.

[00:01:01] Speaker 05:
May it please the Court.

[00:01:02] Speaker 05:
Creative was one of the pioneers in the field of portable music players.

[00:01:07] Speaker 05:
And in developing their Nomad Jukebox product, they developed a real device with a real user interface that solved real problems with the user interfaces of the prior art portable media players.

[00:01:20] Speaker 05:
But despite the fact that the claims improved an existing technological process, the ITC found that the claims were directed to an abstract idea because hierarchies had been used in other contexts before.

[00:01:33] Speaker 05:
According to the other parties, in order to be patent eligible, it's not enough that the claims recite a particular solution to a problem in a technological field, but further requires that the solution must not already have been known in the art, even in other contexts.

[00:01:49] Speaker 05:
But that cannot be the test for abstractness under Section 101, because that's part of the test of obviousness under Section 103.

[00:01:57] Speaker 05:
And as this court stated in Enfish and subsequent cases,

[00:02:00] Speaker 05:
The correct inquiry at step one is simply whether the claims are directed to an improvement to computer functionality versus being directed to an abstract idea.

[00:02:11] Speaker 05:
And under the proper legal test, the claims here easily satisfy section 101.

[00:02:17] Speaker 05:
It was undisputed that there were problems with the user interfaces of prior R portable media players.

[00:02:22] Speaker 05:
The specification talks about that.

[00:02:24] Speaker 05:
And it was undisputed that the patent provided solutions to those problems

[00:02:29] Speaker 05:
and improved an existing technological process.

[00:02:31] Speaker 05:
And the patent specification, again, describes the improvement and describes the advantages of the improvement.

[00:02:37] Speaker 05:
And that's all Section 101 requires.

[00:02:39] Speaker 05:
Whether that same solution had been used before in other contexts, that's a question of patentability.

[00:02:45] Speaker 05:
That's not a question of patent eligibility.

[00:02:49] Speaker 05:
This case is very similar to the training technologies case in numerous respects.

[00:02:54] Speaker 05:
In both cases involved user interfaces and improvements to user interfaces.

[00:02:59] Speaker 05:
that solve problems.

[00:03:01] Speaker 05:
And there's no dispute that user interface technology is a technological field.

[00:03:06] Speaker 05:
And in training technologies, the court held that the claim subject matter is directed to a specific improvement to the way computers operate.

[00:03:15] Speaker 05:
And the same thing applies here.

[00:03:16] Speaker 05:
The specification of patent tells us that, and the testimony at the hearing tells us that.

[00:03:22] Speaker 05:
And in training technologies, the court also made clear that it was not ruling or considering patentability issues.

[00:03:29] Speaker 02:
Because, as you point out, patentability in terms of 103 and 102 is not a consideration under 101, why is it that you argue that the court below erred in not considering secondary considerations?

[00:03:47] Speaker 05:
What we're arguing, Your Honor, is that there is objective evidence that's relevant primarily under step two, possibly step one as well,

[00:03:58] Speaker 05:
as to whether the invention solved the problem and whether it was a routine and conventional solution.

[00:04:05] Speaker 05:
And so we're not arguing it as a matter of obviousness, but the same considerations that are relevant for an obviousness determination are also relevant and can inform questions under Section 101 when there is an issue about whether a solution actually solved a problem

[00:04:28] Speaker 05:
and whether that solution was routine and conventional.

[00:04:31] Speaker 05:
So for example, there were articles talking about how great the user interface was on the creative Nomad Jukebox product, and it compared it to other products, an Arcos product, where it said the user interface was maddening.

[00:04:47] Speaker 05:
And that confirms, or at least supports and is relevant,

[00:04:50] Speaker 05:
to the fact that it was not a conventional and routine solution that was used in this product.

[00:04:55] Speaker 04:
Do you think that only applies to abstract ideas?

[00:05:00] Speaker 04:
The exception or to other portions of 101 ineligibility?

[00:05:05] Speaker 04:
I'm very confused how you're bringing this in.

[00:05:08] Speaker 04:
I mean, I'm sure you're familiar with Ariosa, which had a, I think everybody agrees, a fairly breakthrough method of doing fetal testing

[00:05:19] Speaker 04:
but nonetheless was found obvious because all it did was implement a law of nature using conventional methods.

[00:05:26] Speaker 04:
I mean, certainly the commercial success and the breakthrough of that was substantial, but it had no bearing on the question of whether it was an eligible patent or not.

[00:05:38] Speaker 05:
Yes, I think we're focusing on the abstract idea exception and the argument that... Why does that make any difference?

[00:05:47] Speaker 05:
because the court's precedents and the Supreme Court's precedents explain that when an invention purports to improve an existing technological process, it's generally going to be an eligible invention.

[00:06:03] Speaker 05:
Now, in some cases,

[00:06:05] Speaker 05:
the invention might simply just be claiming the abstract idea.

[00:06:08] Speaker 05:
And that's why it's important, and Enfish makes this clear, that you have to look to see what is the focus of the claims.

[00:06:15] Speaker 05:
Is the focus on the claims the actual specific improvement that's asserted?

[00:06:20] Speaker 03:
Or is it just... That's the problem.

[00:06:21] Speaker 03:
I want to interrupt you because it seems to me that to focus on the problem, that it wasn't whether the contribution, the technological change, could have been claimed

[00:06:35] Speaker 03:
specifically and more precisely in a way that would have avoided the abstraction, but that the claims that are being sought, at least the broadest claims, are so broad that they are abstract.

[00:06:53] Speaker 03:
They're just being claimed too broadly when you say that what is the invention and it should be looked at under 102 or 103.

[00:07:00] Speaker 03:
Yes, but when you're seeking a claim which is

[00:07:05] Speaker 03:
broader than that which is said to be the invention, you encounter the concept of abstract idea, and it seems to be the history of these section 101 cases, the breadth of the claim.

[00:07:20] Speaker 03:
And how do you overcome that issue here?

[00:07:24] Speaker 03:
That seems to, reading the decision of the ITC, that was a significant concern.

[00:07:31] Speaker 05:
Yes, Your Honor.

[00:07:33] Speaker 05:
So what the ITC did is what this Court has said is improper to do in Enfish and other cases where they looked at the claims at a very high level of abstraction and concluded it's simply directed to the idea... Because it was written at a high level of abstraction.

[00:07:53] Speaker 05:
But there are specific details in the claims, in both the independent claim and the dependent claim, providing specificity.

[00:08:01] Speaker 05:
The claims don't simply say use hierarchies to access content.

[00:08:05] Speaker 05:
It talks about a specific sequence of three screens, what's displayed on each screen, the user interactions that take you to the next screen, and then the dependent claims add further specificity that the content that's accessed is then added to a playlist, is added to an active queue, or is added as a group to a queue or to be played.

[00:08:28] Speaker 05:
And that's consistent with the fact that these claims are not directed to a new way to code or program a user interface.

[00:08:39] Speaker 05:
It's directed to the design of the user interface.

[00:08:42] Speaker 05:
And user interface design is part of the field of human-computer interaction, which is a recognized interdisciplinary field.

[00:08:50] Speaker 05:
And Professor Foley testified about that at trial as a subject of active research.

[00:08:55] Speaker 05:
in academia and in industry.

[00:08:59] Speaker 05:
And in user interface design, what's important is the sequence of steps.

[00:09:04] Speaker 05:
Just like in training technologies, the claims talked about the sequence of steps, what's displayed on the screen, what the user does in response to that, what's then displayed.

[00:09:13] Speaker 05:
And by having that sequence of interactions, it improves the technology.

[00:09:18] Speaker 05:
It makes it more user-friendly, makes it more efficient, and it makes for a better product.

[00:09:24] Speaker 05:
And so I think that there is a specificity in the claims, not simply saying use hierarchies to access content.

[00:09:33] Speaker 03:
Well, yes, there are lines to be drawn.

[00:09:35] Speaker 03:
And we all know that one of the problems is the difficulty of drawing an all-purpose line that applies in all cases.

[00:09:44] Speaker 03:
And so here, the ALJ looked at the case and thought that there's a line to be drawn here

[00:09:54] Speaker 03:
but that the 101 line for the broadest claims just hasn't been crossed.

[00:10:00] Speaker 05:
Well, I think if you look at the decision closely, it appears that ALJ didn't really consider whether the patent was solving a problem.

[00:10:11] Speaker 05:
He simply looked at the claims and said the claims are about using hierarchies to access content.

[00:10:19] Speaker 05:
failed to consider the specific problems that were being solved.

[00:10:23] Speaker 03:
But that's not enough.

[00:10:24] Speaker 03:
Bilski solved a problem of hedging commodities.

[00:10:27] Speaker 03:
That wasn't enough.

[00:10:29] Speaker 05:
Oh, true, because it was not solving a technological problem.

[00:10:32] Speaker 05:
In many of the cases, both at the Supreme Court and at this court, the claims are simply taking long-standing human activity and saying, doing it on a computer.

[00:10:41] Speaker 05:
And that was the case in Bilski.

[00:10:43] Speaker 05:
And you certainly can't do that.

[00:10:45] Speaker 05:
But in many of these cases, or most of these cases,

[00:10:48] Speaker 05:
where the court has found a lack of patent eligibility is because there was no technological problem being solved.

[00:10:55] Speaker 05:
And that's quite different here.

[00:10:56] Speaker 05:
The specification is absolutely abundantly clear that there was a technological problem and the patent provided a solution to it.

[00:11:03] Speaker 05:
And that's the focus of the claims.

[00:11:05] Speaker 04:
What in claim one particularly do you think we should look to to say that it's solving a technological problem?

[00:11:14] Speaker 04:
It goes beyond just saying,

[00:11:15] Speaker 04:
Let's have a hierarchical way of accessing music.

[00:11:21] Speaker 05:
What you should look at is the description and the specification of what you're trying to say.

[00:11:25] Speaker 04:
No, I want to start with the claim language.

[00:11:27] Speaker 04:
This is the problem with these cases is they have incredibly broad claim language.

[00:11:31] Speaker 04:
They claim abstract ideas and don't tie them to the specific invention that you are trying to say is patentable.

[00:11:41] Speaker 05:
Yes.

[00:11:41] Speaker 05:
So in the claim language, it recites the specific sequence of screens of displaying categories, and then allowing the user to select a category, and then displaying subcategories under that category, and then allowing the user to select a subcategory, and then displaying the appropriate items, and then allowing the user to access the content.

[00:12:00] Speaker 05:
So it's the screens.

[00:12:02] Speaker 05:
It's the sequence of screens.

[00:12:04] Speaker 05:
I guess it's also important to recognize that there's many other ways of using hierarchies to access content.

[00:12:12] Speaker 05:
In fact, one of the prior devices discussed in the proceeding below was the Hango device, which used hierarchies, but it didn't use three display screens.

[00:12:23] Speaker 05:
It had three lines, and it displayed the three levels of the hierarchy on a single display screen.

[00:12:33] Speaker 05:
And so the claims here are more specific than that.

[00:12:36] Speaker 05:
And so the claims here don't preempt or cover all different ways of doing hierarchies.

[00:12:42] Speaker 05:
They cover a particular way using a sequence of three display screens.

[00:12:45] Speaker 05:
And that is one aspect of the invention here.

[00:12:50] Speaker 02:
So just to clarify on the technical or technological problem being solved, it's the portable media player problem of not being as user-friendly.

[00:13:00] Speaker 02:
How would you describe the technical problem that's solved?

[00:13:04] Speaker 05:
Yeah, the technical problem that's being solved is right from the specification.

[00:13:10] Speaker 05:
In column one, it says,

[00:13:12] Speaker 05:
As the storage capacity increases and songs are compressed to show a file lens, the number of songs that can be stored increases rapidly, major problems facing the consumer are organizing and accessing the tracks.

[00:13:25] Speaker 05:
And then on a portable device it says, using such a compact user interface to navigate and select among hundreds of songs is inefficient and often frustrating.

[00:13:35] Speaker 05:
The display screen can only show a few song titles at one time, and the limited controls make it difficult

[00:13:42] Speaker 05:
for a user to arbitrarily select or move among songs.

[00:13:45] Speaker 05:
And that reflects the fact that the prior art used what's called sequential navigation.

[00:13:48] Speaker 05:
It would display one song at a time.

[00:13:50] Speaker 05:
You'd have to keep pressing next, go to the next song, and then next, go to the next song after that.

[00:13:55] Speaker 05:
And that's what the specification describes as being inefficient and frustrating for the users.

[00:14:01] Speaker 05:
And so the problem being solved is how do you efficiently, on a small screen device, access content in an efficient and user-friendly manner?

[00:14:11] Speaker 03:
Okay, let's hear from the other side and we'll save you rebuttal time.

[00:14:14] Speaker 03:
Thank you.

[00:14:19] Speaker 01:
Ms.

[00:14:19] Speaker 01:
Morad.

[00:14:22] Speaker 01:
So I agree with the comments that you made to Appalachian Council that these claims don't solve a technological problem.

[00:14:30] Speaker 04:
So my issue with this, I think this is difficult.

[00:14:36] Speaker 04:
I mean, clearly the hierarchical stuff is an abstract idea and if you just said

[00:14:40] Speaker 04:
do this hierarchical system on a computer, I think it would comfortably fit in with all of our ineligibility decisions.

[00:14:47] Speaker 04:
But claim one, and I don't know if this is enough, because it's still awfully high level and abstract to me, but it does talk about using three screens in successive order.

[00:14:59] Speaker 04:
Why isn't that enough to make it an eligible idea?

[00:15:03] Speaker 04:
Because it's solving the technical problem, as your friend says, of dealing with a small screen with limited controls and the like.

[00:15:11] Speaker 04:
and improving the function of that unit.

[00:15:16] Speaker 01:
Well, the commission found that the hierarchical user interface with three levels, that was known in other contexts, like in the computing context.

[00:15:26] Speaker 04:
Well, I'm not disputing that.

[00:15:27] Speaker 04:
I mean, if this claim just said a method of selecting tracks from players using a hierarchical thing, saying go first to this, go first to that, go second to that, go third to that,

[00:15:39] Speaker 04:
this would be easy, it would be out.

[00:15:41] Speaker 04:
But it goes further and says the reason we're using this and we're going to do it on successive screens is because there's a limited functionality of MP3 players.

[00:15:51] Speaker 04:
The screen is small, the controllers are small, and the like.

[00:15:55] Speaker 04:
Why isn't that enough to confine it, make it narrow, and make it specific enough to be eligible?

[00:16:01] Speaker 01:
Well, at page 32 of our brief, we address specifically that problem that hierarchical organization was

[00:16:08] Speaker 01:
invented for the very purpose of being able to display or to review a larger amount of information in a limited display area.

[00:16:18] Speaker 01:
And there is substantial evidence in the record that shows that hierarchical categorization has been used in small limited display areas.

[00:16:26] Speaker 02:
But doesn't that go to obviousness or anticipation?

[00:16:30] Speaker 02:
How does that show that it's abstract or not directed to a technological problem?

[00:16:38] Speaker 01:
Because when we review cases under 101, for example, under this court's decision in AffinityLab, we see if this invention is merely limiting the field of use of something that is already existing, an existing technological solution.

[00:16:58] Speaker 02:
I thought we looked to see whether it was abstract.

[00:17:01] Speaker 01:
Right.

[00:17:02] Speaker 01:
And so what AffinityLab versus DirecTV stated is that

[00:17:07] Speaker 01:
limiting the field of use of the abstract idea to a particular existing technological environment does not render the claims any less abstract.

[00:17:16] Speaker 02:
So the fact that they're taking a hierarchical... You're saying the fact that it's known doesn't... the things... the fact that there's parts of it that is known doesn't make it any less abstract?

[00:17:32] Speaker 02:
Is that what you said?

[00:17:33] Speaker 01:
The fact that it was conventional and that they're merely limiting the field of use of a conventional hierarchical user interface to a portable media player environment, that does not render the claims any less abstract.

[00:17:46] Speaker 02:
But setting that aside for a minute, how is it abstract?

[00:17:50] Speaker 01:
It is abstract because it's a method of organizing human activity.

[00:17:57] Speaker 01:
It is abstract because it's a fundamental practice that's long prevalent in our system.

[00:18:03] Speaker 01:
It is abstract because this court also said that we have to look at previous cases which held that the concept is abstract.

[00:18:10] Speaker 01:
And that's what the commission did here.

[00:18:13] Speaker 01:
It looked at Versada, for example, and stated that like Versada, it's a method of organizing information, like content extraction,

[00:18:38] Speaker 01:
It's just storing information in an organized manner, like Intellectual Ventures versus Capital One.

[00:18:47] Speaker 01:
It specifically said that an interactive interface is a generic element.

[00:18:52] Speaker 01:
In Apple versus Amarant, this court held that just the display menus on the graphical user interface is an abstract idea as well.

[00:19:05] Speaker 01:
The commission did exactly that, looked at the previous cases and determined that this claimed invention here is the same as what was done for decades in other contexts.

[00:19:18] Speaker 01:
For example, before you could walk to a record store and you would see that the songs are organized by genre, classic rock or jazz, then by artists, and then by album.

[00:19:35] Speaker 01:
And so this is something that's been around for a long time that humans have been doing for a long time.

[00:19:40] Speaker 01:
And what they're doing basically here is trying to claim that activity that's been around for a long time and apply it in the context of a portable media environment.

[00:19:51] Speaker 01:
And that is not enough for two reasons.

[00:19:54] Speaker 01:
First, because it's just limiting the field of use, which is

[00:19:58] Speaker 01:
not patent-eligible and Bielski and their affinity lab.

[00:20:03] Speaker 01:
And also, because the claims themselves, they don't recite a specific implementation.

[00:20:08] Speaker 01:
And the specific implementation has to be an unconventional implementation to the portable media player environment.

[00:20:15] Speaker 01:
In Inuit TLI, for example.

[00:20:18] Speaker 04:
Why isn't that specific, innovative implementation the idea of going to successive screens for categories

[00:20:26] Speaker 04:
rather than displaying everything on one screen.

[00:20:33] Speaker 01:
In RATLI, ENFISH, this court held that for the invention to be patentable, it has to be specific and unconventional.

[00:20:45] Speaker 01:
And the problem that the commission had with these claims is

[00:20:50] Speaker 01:
These organization methods have been around.

[00:20:52] Speaker 01:
No, no.

[00:20:53] Speaker 04:
You're really not answering my questions.

[00:20:55] Speaker 04:
I agree with you that these organization methods are abstract and conventional or whatever you want to call them.

[00:21:02] Speaker 04:
What I want you to tell me is why the idea of going using three separate screens to access this information as a new way of using a user interface isn't non-conventional or isn't in a technological improvement.

[00:21:17] Speaker 04:
get out of the notion that the organization is the problem.

[00:21:21] Speaker 04:
I agree that, but this claim has the additional language that it uses successive screens because it's solving problems about portability, small screen, limited controls.

[00:21:34] Speaker 04:
Why isn't that enough?

[00:21:36] Speaker 01:
Correct, and at page 32 of our brief we explained

[00:21:39] Speaker 01:
that the same successive screens have been used in the computing context.

[00:21:45] Speaker 01:
There is no dispute about that.

[00:21:47] Speaker 01:
The only argument that appellants are making here is that it was not done in the context of a portable media player.

[00:21:55] Speaker 04:
And so the successive screen, one screen... And that sounds very much like an obviousness argument, not like a 101 argument.

[00:22:02] Speaker 01:
Well, when you look at the cases that... When we talk about conventional,

[00:22:07] Speaker 04:
I thought we were talking about equipment, and certainly the equipment may be conventional, but I didn't think we were extending conventional to conventional ways of doing things.

[00:22:20] Speaker 04:
Do you have any case law for that?

[00:22:23] Speaker 01:
Sure.

[00:22:23] Speaker 01:
For example, there is in Affinity Labs versus Texas, it was reciting a method of providing wireless broadcast content

[00:22:37] Speaker 01:
to a cellular telephone.

[00:22:39] Speaker 01:
And so the graphical user interface was able to give that.

[00:22:44] Speaker 01:
And the court said, well, basically what you're doing is essentially limiting this abstract idea of providing wireless delivery of broadcast content to a cellular telephone.

[00:22:57] Speaker 01:
And that is not enough because it's conventional.

[00:23:01] Speaker 04:
That still sounds like you're talking about the equipment being conventional.

[00:23:06] Speaker 04:
Not the idea of using that conventional equipment in a different way.

[00:23:15] Speaker 04:
Sorry, I've taken up way too much of your time.

[00:23:18] Speaker 04:
I've got your answer.

[00:23:20] Speaker 01:
I'd like to point to trading text, for example, which is different from this case, because the graphical user interface in that case had a specific and unconventional element to it.

[00:23:30] Speaker 01:
In that case, the graphical user interface had the static index.

[00:23:36] Speaker 01:
It was a trading system, and the trading system had the static index that was completely new, that was not used before.

[00:23:43] Speaker 01:
In this case, there was really no evidence of anything in the graphical user interface that was not already present in the prior art.

[00:23:53] Speaker 02:
My problem, you've made some good points today, but my problem is you keep on going into sounding like you're talking about

[00:24:01] Speaker 02:
that the abstract idea itself is conventional.

[00:24:05] Speaker 02:
But I don't think that's what we're supposed to do.

[00:24:08] Speaker 02:
Sometimes in looking at step two, we'll look and see whether there's conventional additional elements and whether those make it not abstract anymore.

[00:24:20] Speaker 02:
But I don't think that our analysis that this court has talked about and

[00:24:27] Speaker 02:
I don't think that it means that we just look at the overall idea of the claim and see whether it's conventional.

[00:24:34] Speaker 02:
I think that's 102, 103.

[00:24:36] Speaker 02:
So I think that your other answer about how you were saying that the idea that the display here is, that it's an abstract idea, that it's analogous to a record store, that is making more sense to me.

[00:24:56] Speaker 02:
But I don't understand how... Sorry, I'm getting off on a tangent.

[00:25:02] Speaker 02:
But I agree with Judge Hughes, and I guess my question to you is what cases are you relying on to say that you look at the abstract idea itself and determine whether it's conventional?

[00:25:14] Speaker 01:
The Commission looked at several cases, and as I mentioned, it looked at Rosada development

[00:25:20] Speaker 01:
at intellectual ventures, at content extraction, and Amarant, the recently decided Apple versus Amarant.

[00:25:29] Speaker 01:
And in those cases, it was similar because, for example, Amarant had these menus that were displayed in a hierarchical tree format.

[00:25:39] Speaker 01:
And the court found that that was an abstract idea.

[00:25:43] Speaker 01:
And in this case, similarly, we have a hierarchical presentation of information that was

[00:25:49] Speaker 01:
a fundamental practice that was done in the computing context.

[00:25:53] Speaker 01:
It was done in the record store context.

[00:25:57] Speaker 01:
And so you take something that was done for decades by humans and you simply apply it to the context of a portable media player environment that under affinity labs is not enough to render the claims any less abstract.

[00:26:11] Speaker 01:
The other issue is that the portable media player environment is merely a generic environment in which to carry out this abstract concept.

[00:26:19] Speaker 01:
There is no specific implementation to the portable media player environment.

[00:26:25] Speaker 01:
There is no, in the language of TLI, no inventive concept to a problem presented by combining the two, meaning the conventional user interface with the portable media player environment.

[00:26:41] Speaker 01:
And the commission did not rely on any 102 or 103 cases.

[00:26:46] Speaker 01:
All the cases that the commission relied on

[00:26:48] Speaker 01:
or were under Section 101.

[00:26:51] Speaker 03:
Let's hear from your colleague.

[00:26:52] Speaker 03:
Thank you.

[00:27:05] Speaker 03:
Mr. Bagatello.

[00:27:06] Speaker 03:
Thank you.

[00:27:07] Speaker 04:
So can I just, sorry to jump in, but you don't have much time.

[00:27:10] Speaker 04:
Can I just ask you, I know that in hindsight today, the idea of displaying this type of information

[00:27:16] Speaker 04:
which I agree with you as abstract, so don't start there, on three successive screens, why is that not a technological innovation, particularly if we look around the time the patent was filed?

[00:27:28] Speaker 00:
Okay, so I think we're accepting the premise that the abstract idea here is to go take the hierarchical implementation at a three-level structure, and the question is, why isn't it innovative to go through step screen one, screen two, screen three?

[00:27:41] Speaker 04:
Right, instead of putting it all, I mean, if they said, here's this hierarchy,

[00:27:45] Speaker 04:
we're putting it on the computer screen, they lose.

[00:27:48] Speaker 04:
But they come up with the idea, and I do think that we have to consider that this is an MP3 player at a certain time, although they're not claimed limitations that don't go there, but they are trying to solve a specific problem.

[00:28:02] Speaker 04:
And going from

[00:28:04] Speaker 04:
All in one screen to three screens may not be enough, but I'm not sure why it's not.

[00:28:09] Speaker 00:
I don't think it is.

[00:28:10] Speaker 00:
And first of all, the abstract idea is a three-level hierarchy applied to a particular technological environment.

[00:28:16] Speaker 00:
So we're all in agreement there that that alone is not enough.

[00:28:19] Speaker 00:
So the question is, why is it inventive and inventive stuff that transforms the claims to say, do it in screen one, then screen two, then screen three?

[00:28:28] Speaker 00:
I think that is minor post-solution activity, simply

[00:28:33] Speaker 00:
dictated by the size of the screen.

[00:28:35] Speaker 00:
This was not the first time that anybody applied the idea of a hierarchical organization to small screens.

[00:28:40] Speaker 00:
In fact, computers have done that since the 1970s.

[00:28:43] Speaker 00:
So it depends on the size of your screen.

[00:28:45] Speaker 00:
They were not even the first ones, as we've heard today.

[00:28:47] Speaker 00:
The Han Go actually applied it to a small screen.

[00:28:50] Speaker 00:
So depending on the size of the screen and the amount of the information you have, you're going to either use one screen, two screens, or three screens.

[00:28:57] Speaker 00:
That's not an inventive concept.

[00:28:59] Speaker 00:
That's not something that the patent says, that this was our great new innovation.

[00:29:03] Speaker 00:
That's not described as what the great implementation is.

[00:29:07] Speaker 00:
There's nothing specific in the patent about how to program this.

[00:29:09] Speaker 00:
They simply describe it functionally.

[00:29:11] Speaker 00:
The fact that you can fit something on one screen is dictated by the size of your screen.

[00:29:15] Speaker 00:
If your screen is large enough to fit things on two screens, you can do it that way.

[00:29:19] Speaker 00:
If your screen is not, you do it in three screens.

[00:29:21] Speaker 00:
But that is not the invented concept here.

[00:29:24] Speaker 00:
I think that's litigation-driven argument.

[00:29:29] Speaker 03:
One of the points that

[00:29:31] Speaker 03:
seems to have made an impression on the ALJ, and I guess it did on me, that their expert testified, these are general purpose devices for handling email address lists and so on.

[00:29:43] Speaker 03:
That is, this is the breadth of interpretation of our claim that we're covering all general purpose devices that handle email address lists, calendar, and office applications, as distinguished from the portable media

[00:30:01] Speaker 03:
player, so that there is an interpretation which is indeed broad.

[00:30:07] Speaker 03:
However, in the interaction and the re-examination, they cancelled some of the broadest claims.

[00:30:16] Speaker 03:
How does all of this fit together?

[00:30:18] Speaker 03:
So we're getting here to the claim construction of... Well, to understand how it affects 101, because it was in deciding 101 that the ALJ referred to their expert's testimony of the breadth

[00:30:32] Speaker 03:
of what they're covering.

[00:30:33] Speaker 00:
I actually don't think the claim construction affects the 101 analysis at all.

[00:30:38] Speaker 00:
The main issue in claim construction is whether they disclaimed general purpose devices during the re-examination, and we've explained why in fact they did.

[00:30:49] Speaker 00:
But the abstract idea at the heart of the claims is the same regardless of how you define the portable media player, whether it includes general purpose devices or just single purpose media players.

[00:30:59] Speaker 00:
The abstract idea is to take the hierarchical organization approach and apply it to this new type of device, the portable media player.

[00:31:07] Speaker 00:
Whether that portable media player includes something that can also do your email or simply does something that plays music isn't really relevant to the 101 analysis.

[00:31:16] Speaker 00:
It's still abstract.

[00:31:18] Speaker 00:
It's the abstract idea of taking a traditional idea and applying it to a new technological device that they didn't invent.

[00:31:24] Speaker 00:
All they're doing is applying it to this particular field of use, which, as we know from Bilski analysis, is not good enough.

[00:31:30] Speaker 00:
So I think the claim construction doesn't matter.

[00:31:32] Speaker 00:
If you'd like me to address the merits of the claim construction, I can.

[00:31:35] Speaker 00:
But I don't think that really does drive the 101 analysis at all.

[00:31:41] Speaker 00:
If the court is interested, I can address my opponent's argument about whether it's a technological solution to a technological problem.

[00:31:50] Speaker 00:
I don't think it's either.

[00:31:52] Speaker 00:
First of all,

[00:31:53] Speaker 00:
There's no technological problem here.

[00:31:57] Speaker 00:
These were devices that were in nascent form.

[00:32:01] Speaker 00:
The first ones had 10, 12 songs and hours worth of music.

[00:32:04] Speaker 00:
You didn't need a whole lot of organization to access them.

[00:32:06] Speaker 00:
Somebody else figured out how to put a hard drive on there and now you've got hundreds or thousands of tracks and you need to organize them.

[00:32:13] Speaker 00:
But that was a known problem of how to organize files and computers.

[00:32:16] Speaker 00:
That had been done for decades and the way they organized it was completely traditional.

[00:32:20] Speaker 00:
So there was no technological problem out there.

[00:32:23] Speaker 00:
It's simply taking the same solution that computing had always done, take hierarchical organization as a way to organize files.

[00:32:30] Speaker 00:
Nor was there any real technological solution because they didn't invent a new display.

[00:32:35] Speaker 00:
They didn't invent a new type of memory.

[00:32:37] Speaker 00:
They didn't invent a new type of file structure.

[00:32:40] Speaker 00:
All the types of things that we see in the courts cases that uphold cases under Section 101, that's the kind of inventive concept you're seeing, something that will actually improve the operation of the computer.

[00:32:50] Speaker 00:
This doesn't improve the operation of the computer.

[00:32:52] Speaker 00:
This is simply taking an organizational structure that was already existing on computers and applying it to a particular field of use.

[00:32:59] Speaker 02:
So, again, all we've got is... The argument, the response, is that it's improving the user's ability to access the information.

[00:33:07] Speaker 00:
Well, it's not really... The problem is that the improvement, the supposed improvement, is simply taking the abstract idea and applying it to this context, and that's not patent-eligible.

[00:33:18] Speaker 00:
You can't rely on an abstract idea to supply your invented concept at step two.

[00:33:23] Speaker 00:
Simply taking it and applying it to this type of device, which was a new type of device in the late 1990s, doesn't make it patent-eligible.

[00:33:31] Speaker 00:
And that's the fundamental problem with this case, because the claims really are directed at a three-level hierarchy as applied to a portable media player.

[00:33:39] Speaker 00:
And I think under Bilsky and Alice, that's a pretty straightforward issue.

[00:33:43] Speaker 00:
And then they're reaching to try to argue that somehow

[00:33:46] Speaker 00:
The sequence of three screens is invented, and I just don't think the patent supports that that's what they were really trying to do here.

[00:33:53] Speaker 00:
And common sense will tell you that that's not something invented.

[00:33:56] Speaker 00:
That's just simple post-solution activity as court has found in many other cases.

[00:34:01] Speaker 00:
Not exactly in this context, but simply, you know, gussying up an abstract idea does not make it a patent-eligible invention.

[00:34:17] Speaker 03:
Mr. Baker?

[00:34:18] Speaker 05:
Thank you, Your Honor.

[00:34:19] Speaker 05:
I don't have anything further to add to our argument at this point.

[00:34:22] Speaker 05:
If the Court has any questions, I'm happy to answer them.

[00:34:24] Speaker 05:
Otherwise, I'll sit down.

[00:34:25] Speaker 03:
Well, I think I'd like to ask you the same question I just asked Mr. Back, until your expert makes this statement of extraordinarily broad scope.

[00:34:35] Speaker 03:
And it obviously made an impression on the ALJ, because he quoted it.

[00:34:39] Speaker 03:
These are general purpose devices for handling email.

[00:34:46] Speaker 03:
If that's all that there is, and then we appreciate the broadest claims, several broad claims were canceled, which left perhaps a stronger case for saying that one can find an inventive concept.

[00:35:01] Speaker 03:
How do you put all that together?

[00:35:03] Speaker 05:
Yes.

[00:35:03] Speaker 05:
Well, the way I would put it together is to point out that it's not enough to be a general purpose device.

[00:35:08] Speaker 03:
It has to be... But that's what your expert says?

[00:35:11] Speaker 05:
It still has to have, it has to qualify as a portable media player.

[00:35:15] Speaker 05:
I mean, it has to be able to play media files.

[00:35:18] Speaker 05:
That's the construction that he supported that a portable media player is a handheld device.

[00:35:22] Speaker 03:
It comes out in the ALJ used it in the context of therefore you're seeking to

[00:35:29] Speaker 03:
enforce these claims against every general purpose device for handling email?

[00:35:36] Speaker 05:
Only if they meet all the other requirements of the claims.

[00:35:38] Speaker 05:
Put it a different way, the fact that it also does email doesn't take it out of the realm of infringement if it does everything else the claim requires.

[00:35:47] Speaker 05:
It has a portable media player that can play media files.

[00:35:50] Speaker 05:
It has the three display screens.

[00:35:52] Speaker 05:
It can add tracks to a playlist.

[00:35:55] Speaker 05:
It still has to do the other things

[00:35:56] Speaker 05:
the claim require.

[00:35:57] Speaker 05:
So the claim would surely not cover a general purpose device simply because it can handle email and other tasks.

[00:36:05] Speaker 05:
It has to meet the claim requirements, which are a particular solution to the problem that the patent describes.

[00:36:12] Speaker 03:
Anything else for Mr. Baker?

[00:36:15] Speaker 03:
Thank you.

[00:36:16] Speaker 03:
Thank you, Your Honor.

[00:36:17] Speaker 03:
The case is taken under submission.