[00:00:14] Speaker 04:
Next case is Easy Web Innovations versus Twitter, 2016-2066.

[00:00:23] Speaker 04:
Mr. Kilman.

[00:00:24] Speaker 00:
May it please the court?

[00:00:25] Speaker 00:
Good morning, Your Honors.

[00:00:27] Speaker 00:
Mr. Codignato invented a way of publishing information, personal web pages, on the internet that transformed the way that publishing actually takes place.

[00:00:41] Speaker 00:
In the past, there were

[00:00:42] Speaker 00:
Two ways, he says, to do it in the patent.

[00:00:45] Speaker 00:
And everyone agrees with that.

[00:00:46] Speaker 00:
The two ways were to have your own technology, your own competence in publishing webs, or you hired someone to do it.

[00:00:56] Speaker 00:
That was it.

[00:00:57] Speaker 00:
What Mr. Codignano did was he took the technology that existed at the time that conveyed information, such as telephones, for example, fax machines, email, and he turned those

[00:01:12] Speaker 00:
into web publishing tools.

[00:01:14] Speaker 00:
He did that in two ways.

[00:01:17] Speaker 00:
He used the format of the message, the format of what was coming in by the fax machine or email or telephone to do two things.

[00:01:26] Speaker 00:
One is to convert it

[00:01:27] Speaker 00:
and put it up on the web, and also to determine where it was coming from, to authenticate.

[00:01:32] Speaker 04:
Well, obviously you have two problems, Counsel.

[00:01:36] Speaker 04:
One is abstract ideas.

[00:01:39] Speaker 04:
Yes.

[00:01:40] Speaker 04:
And the other is lack of infringement.

[00:01:42] Speaker 04:
But you say your client made this nice invention, but it's basically an authentication idea, isn't it?

[00:01:55] Speaker 00:
No, I don't agree with that.

[00:01:57] Speaker 00:
I agree that authentication is certainly part of what is going on here.

[00:02:01] Speaker 00:
But what the invention is about is about taking what didn't exist before, which is a way of publishing on the web, taking tools that were never used in that way before, such as a telephone or a fax machine or email, and publishing information on a website.

[00:02:22] Speaker 00:
So that itself

[00:02:25] Speaker 00:
doesn't have anything to do with authentication.

[00:02:27] Speaker 00:
Authentication is a means towards accomplishing that end.

[00:02:31] Speaker 00:
In fact, it's one of the specific ways that that's done.

[00:02:33] Speaker 00:
What's done is to then take what's coming in, say from the email or whatever it happens to be.

[00:02:41] Speaker 00:
That's the preferred embodiment, those examples I'm giving.

[00:02:43] Speaker 00:
And then to figure out, OK, who's that coming from?

[00:02:46] Speaker 00:
And then convert.

[00:02:47] Speaker 00:
All of the technology in the past, the conversion technology that Twitter says was conventional,

[00:02:55] Speaker 00:
was not conventionally used for publishing on the web.

[00:02:58] Speaker 00:
Telephones weren't, fax machines weren't.

[00:03:00] Speaker 00:
There's no evidence of that in the record.

[00:03:02] Speaker 00:
And the conversion software, as well, was used to convert, say, from one image format to another.

[00:03:09] Speaker 00:
But it wasn't conventional at the time.

[00:03:12] Speaker 00:
Remember, we're going back to the 90s now, the late 90s.

[00:03:16] Speaker 00:
It wasn't conventional to use any of that

[00:03:20] Speaker 00:
to convert and put things on the web.

[00:03:22] Speaker 00:
Yes, individuals could use suites of technology and suites of software.

[00:03:27] Speaker 04:
But it's passing information back and forth, isn't it?

[00:03:30] Speaker 00:
Well, every computer device passes information back and forth.

[00:03:34] Speaker 04:
But that's one of the problems, one of the facts of the present law, as we take it from the Supreme Court.

[00:03:42] Speaker 00:
Well, certainly I agree that this court's precedent is that if all you're doing

[00:03:49] Speaker 00:
is taking conventional computer means, conventional computer pieces, and just moving information back and forth, and that's all that's being done, I agree.

[00:03:58] Speaker 00:
And under this court's precedent, there's an Alice problem.

[00:04:01] Speaker 00:
But that is not at all what is going on here.

[00:04:03] Speaker 00:
What we are doing is changing, in fact, using a particular rule similar to, say, the McGraw case in this court, and saying that I want to authenticate.

[00:04:16] Speaker 00:
How do I authenticate?

[00:04:18] Speaker 00:
I authenticate in a way that's never been done before by using the format of what's coming in.

[00:04:23] Speaker 00:
So say, in the email context, I might be looking at a from header.

[00:04:28] Speaker 00:
Or I might be using another part of the email.

[00:04:31] Speaker 00:
In a different context, in the facts context, I'm using what the facts provides.

[00:04:37] Speaker 00:
So it could be, say, caller ID.

[00:04:39] Speaker 00:
It could be the facts header.

[00:04:40] Speaker 04:
Talking about infringement, does Twitter use a first and a second format?

[00:04:44] Speaker 00:
I'm sorry?

[00:04:45] Speaker 04:
Does Twitter use a first and a second format?

[00:04:48] Speaker 00:
I believe that they do, although there is going to certainly be a dispute below over that.

[00:04:55] Speaker 00:
If you send it back to the district court, I think there will, in fact, be a dispute over that, although that dispute was not part of the court's decision in the case.

[00:05:05] Speaker 00:
And it is certainly true that first and second form.

[00:05:09] Speaker 00:
You're using the words first and second format in those individual terms.

[00:05:12] Speaker 00:
I understand the question as opposed

[00:05:14] Speaker 00:
format in general, because there were two different things going on here.

[00:05:18] Speaker 00:
One is, what does the word format mean?

[00:05:21] Speaker 00:
And then what are the first and second formats individually?

[00:05:24] Speaker 00:
First and second were not part of the district court's ruling on summary judgment, though the district court did, in fact, construe those terms.

[00:05:33] Speaker 00:
I think those will be disputed below.

[00:05:35] Speaker 00:
And I'm hoping we're not back again after that happens.

[00:05:39] Speaker 00:
But that's why it was in our brief, out of an abundance of caution so that could be decided here.

[00:05:44] Speaker 00:
With respect to the format, let me talk about the infringement that you asked about.

[00:05:48] Speaker 00:
Format is used in two different ways in the patent.

[00:05:53] Speaker 00:
One kind of format is what we've been calling a file format.

[00:05:58] Speaker 00:
That's what the court said.

[00:06:01] Speaker 00:
Format is used interchangeably with file format.

[00:06:03] Speaker 00:
What the court, I believe, understands that to mean is, say, a JPEG image or a GIF image.

[00:06:10] Speaker 00:
Two different ways of coding an image.

[00:06:13] Speaker 00:
Yes, conversion does take place in the patent based on that in one circumstance, but there's also conversion from, say, an email where you're not converting image file formats and you're taking the way of sending information, in other words an email wrapper or email packaging, and putting it in web packaging, which is how that is served up and sent up for people to look at.

[00:06:37] Speaker 00:
We need to also understand that format plays a very, very fundamental role in the identification scheme, the authentication scheme.

[00:06:44] Speaker 00:
Under Twitter's and the district court's instruction, there's no way to do the identification scheme because in the preferred embodiment, there is no identification or authentication based on whether something's a JPEG or GIF or any other kind of image format.

[00:07:05] Speaker 00:
That's not done.

[00:07:06] Speaker 00:
For example, it's done based on the transfer wrapper.

[00:07:11] Speaker 00:
So is it an email?

[00:07:13] Speaker 00:
Is it a fax?

[00:07:14] Speaker 00:
For example, a fax, as Twitter concedes, can come in in an image format.

[00:07:18] Speaker 00:
That same image format can be attached to an email.

[00:07:21] Speaker 00:
Under the district court's interpretation, because they're in that same format, they both have an attachment associated with them.

[00:07:29] Speaker 00:
That's an image.

[00:07:31] Speaker 00:
They're both going to be authenticated in the same way.

[00:07:35] Speaker 00:
But that's not how the preferred embodiment works.

[00:07:38] Speaker 00:
The preferred embodiment authenticates facts different from email.

[00:07:45] Speaker 00:
So it has to include, if you're going to include the preferred embodiment in the claims, in the meaning of format, we have to embrace having an email be different from facts.

[00:07:57] Speaker 00:
And so when you turn to the infringement and what Twitter is doing, what Twitter does is it has three different ways

[00:08:03] Speaker 00:
three different formats of sending the message.

[00:08:06] Speaker 00:
It has its web form where you type in a password and then a cookie is sent, and the cookie is part of that wrapper.

[00:08:14] Speaker 00:
It's called an HTT post, but there's a specific field for the web that has a cookie.

[00:08:19] Speaker 00:
If you're using their mobile app, and this is all 2013 technology, because that's when this was done, so I don't know how they, today might be a little bit different, but that's what we're talking about.

[00:08:27] Speaker 00:
In the mobile app, it's OAuth, and that's actually a secure token

[00:08:33] Speaker 00:
that is used, and it's a totally different field.

[00:08:37] Speaker 00:
And with the text messaging, which is the third option that they use, they use a number system there, I'm sorry, phone number system, where that information is sent in totally different fields.

[00:08:49] Speaker 00:
So if we take seriously what the district court and Twitter believes is the definition of field sort of in the diction, I'm sorry, the definition of format,

[00:09:02] Speaker 00:
in a dictionary sense, which is a collection of information and headers, then that's exactly the argument that we made below and that's exactly why Twitter infringes and our expert explains that those different headers make them different formats under our construction and that's an issue for the jury to decide under what we believe is the correct construction.

[00:09:27] Speaker 00:
I can move on to the, if there's any questions on that, I can move on to the

[00:09:31] Speaker 00:
central processor as well, which is the other claim construction issue that is important here.

[00:09:38] Speaker 00:
And that is, central processor in the patent really means computer or computers.

[00:09:44] Speaker 00:
Mr. Carignato himself put together, I was using it shorthand, I mean we use it to collection of computers, a single computer collection of computers in the system I think is the actual construction that we propose, but essentially it's one or more computers.

[00:09:58] Speaker 00:
And the reason

[00:10:00] Speaker 00:
And so Mr. Cottingham put this specification together himself many years ago.

[00:10:04] Speaker 00:
This is the record show.

[00:10:05] Speaker 00:
He used this term central processor.

[00:10:07] Speaker 00:
He saw it in many patents.

[00:10:09] Speaker 00:
And he used that consistently throughout the specification as a computer or more than one computer.

[00:10:17] Speaker 00:
And he explicitly says that as well.

[00:10:20] Speaker 00:
What the district court did in this particular circumstance was try to read something into the central processor.

[00:10:28] Speaker 00:
That is just not there anywhere in the patent.

[00:10:30] Speaker 00:
I see I'm in my rebuttal time.

[00:10:31] Speaker 00:
If there are any other questions Your Honor would want me to address beforehand, I'll reserve the rest.

[00:10:36] Speaker 04:
We will save it for you.

[00:10:37] Speaker 04:
Thank you.

[00:10:38] Speaker 04:
Ms.

[00:10:38] Speaker 04:
Dury.

[00:10:41] Speaker 01:
Thank you, Your Honor.

[00:10:42] Speaker 01:
And may it please the court, Daryl and Dury, appearing before Twitter.

[00:10:46] Speaker 01:
Let me begin, Your Honors, with the characterization of the invention.

[00:10:51] Speaker 01:
In the specification, the inventor distinguishes his invention over Bobo.

[00:10:56] Speaker 01:
This is at page 79 of the appendix.

[00:10:59] Speaker 01:
by explaining that while BOGO described a system pursuant to which users could use fax machines or telephones to send messages to be published and to appear on the internet, that BOGO did not provide a security scheme associated with those messages.

[00:11:18] Speaker 01:
And so it would be possible, for example, for unauthorized users of the system to use it to put messages in somebody's inbox.

[00:11:26] Speaker 01:
Consistently then, with that explanation, the reason for allowance for each of the patents at issue was a security scheme that tied the identification mechanism to the format of the message.

[00:11:40] Speaker 01:
And in the specification, it explains that facts, image, and text each have preferred file formats associated with them and explicitly distinguishes the format of the message

[00:11:54] Speaker 01:
that is at issue from such things as headers, packet data, and data descriptors, which are described as being, therefore, other than the format of the message.

[00:12:04] Speaker 01:
The consequence of EasyWeb's definition of format is that merely including a different authentication mechanism, for example, an OAuth token versus a cookie, as part of the information that is transmitted along with the message,

[00:12:23] Speaker 01:
means that the format of the message is therefore different.

[00:12:28] Speaker 01:
EasyWeb has not identified any difference in the encoding that is applied to messages that are sent from the app versus messages that are sent from the web browser.

[00:12:40] Speaker 01:
They are both in the HTTP post format.

[00:12:43] Speaker 01:
The only difference it has identified is that different authentication mechanisms are used for them.

[00:12:51] Speaker 01:
And indeed,

[00:12:52] Speaker 01:
EasyWeb's expert, Dr. Polish, admitted that in this circumstance, to the extent that these tweets are using different forms of authentication in the forms of cookies versus OAuth tokens, that necessarily means that they are therefore in different formats.

[00:13:10] Speaker 01:
That reverses the causation that is required by the claims that identification be dependent on formats.

[00:13:20] Speaker 01:
Not that format.

[00:13:21] Speaker 04:
Why don't you tell us why these claims are patent eligible?

[00:13:28] Speaker 01:
Yes, Your Honor.

[00:13:28] Speaker 01:
These claims are not patent eligible because the idea that is reflected in the claims is this idea of format dependent authentication.

[00:13:38] Speaker 01:
In other words, that the way that you determine who someone is is a function of the format.

[00:13:43] Speaker 01:
That is an idea that could be implemented by asking someone who calls into a system to voice identify themselves and asking someone who sends a letter into a system to perform that authentication with a signature.

[00:13:56] Speaker 01:
Each of the other components recited in the claims is essentially what EasyWeb contends to be a generic computer, a central processor, which they say is any computer at all, and conventional articles that are described as such in the specification.

[00:14:13] Speaker 01:
It is a case, we think, most like TLI, where the idea here, the allegedly inventive idea, is this abstract concept.

[00:14:21] Speaker 01:
And what we have are then generic components that allow that idea to be implemented in the context of the internet.

[00:14:29] Speaker 02:
One thing I am struggling with in your abstract idea analysis, as well as in the lower courts abstract idea analysis, is that you focus exclusively on authentication.

[00:14:42] Speaker 02:
And most of the cases we've had, the abstract idea is a means of explaining what the claim as a whole, how it is abstract or is directed to an abstract idea.

[00:14:54] Speaker 02:
But here, while the novelty of the claim potentially is argued to be the authentication scheme, the claim is actually about conversion and publication.

[00:15:05] Speaker 02:
So I feel like you have extracted a single element from a multi-element claim

[00:15:12] Speaker 02:
and said, aha, there's an abstract idea in here somewhere.

[00:15:15] Speaker 02:
Thus, this meets the Alice test.

[00:15:18] Speaker 02:
Most of the other cases, the whole claim is characterized in a way that reflects the abstract idea.

[00:15:25] Speaker 02:
So can you help me understand?

[00:15:27] Speaker 02:
Because do you see my problem?

[00:15:28] Speaker 02:
My problem is that you could narrow down any claim to a single element and then describe it in an abstract way.

[00:15:35] Speaker 02:
And then every claim would automatically satisfy Alice step one.

[00:15:40] Speaker 02:
This is a publishing system.

[00:15:42] Speaker 02:
And the ultimate result of it is conversion of a file and publication of it.

[00:15:47] Speaker 02:
And yet you say this claim is all about the abstract idea of authentication, which is absolutely one element.

[00:15:53] Speaker 02:
But this is my problem.

[00:15:54] Speaker 02:
So help me figure out how to work through what you're saying.

[00:15:57] Speaker 01:
I understand the court's concern and that the court must look at the claim as a whole.

[00:16:02] Speaker 01:
And I would say this is very similar to TLI.

[00:16:05] Speaker 01:
In TLI, there were elements of the claim that were directed, for example,

[00:16:09] Speaker 01:
to having a telephone unit and to having messages be sent into the system via the telephone unit, with the photographs then being characterized based on identifying information.

[00:16:20] Speaker 01:
The court nevertheless found that the claim as a whole was directed to an abstract idea, because the core of the claim was this categorization.

[00:16:30] Speaker 01:
And then there were routine known elements, but physical elements, like having the telephone unit that

[00:16:38] Speaker 02:
Well, so I don't think that the physical elements detract from the concept of the abstract idea, because the abstract idea is the idea that's being effectuated on these physical elements.

[00:16:51] Speaker 02:
And so that's why I don't think this is like TLI.

[00:16:55] Speaker 02:
Maybe your argument should be, which it hasn't been,

[00:16:58] Speaker 02:
two abstract ideas doesn't save it from being abstract.

[00:17:01] Speaker 02:
I don't know.

[00:17:02] Speaker 02:
You know, the fact that there are three different, you know, there's authenticate, convert, and publish.

[00:17:08] Speaker 02:
There's clearly three major components to this claim.

[00:17:12] Speaker 02:
And you'd like to sum it all up in terms of just one.

[00:17:15] Speaker 02:
And that doesn't, it's not sitting well for me with the abstract idea notion because every other case that I've encountered

[00:17:22] Speaker 02:
The abstract idea articulates the abstraction that is the entire method being performed.

[00:17:28] Speaker 02:
And you seem, I'm just really worried.

[00:17:30] Speaker 02:
I mean, the Supreme Court cautioned us against narrowing it down to a single element and doing it that way, because then everything would be abstract.

[00:17:38] Speaker 02:
And I do think that's true.

[00:17:40] Speaker 01:
I understand.

[00:17:41] Speaker 01:
I would say in TLI, there was a requirement also of receiving information, that the information be sent to the system where it would then be classified.

[00:17:50] Speaker 01:
So one could look at the claim in TLI and say there was a receiving idea that was... What was the abstract idea in TLI?

[00:17:57] Speaker 01:
Well, the abstract idea was the categorization of the information.

[00:18:00] Speaker 01:
It was the classification of the information.

[00:18:02] Speaker 02:
But do you understand you have to receive information to classify?

[00:18:04] Speaker 02:
And it's all part of the same thing.

[00:18:06] Speaker 02:
Here, there's authentication.

[00:18:07] Speaker 02:
Then there's a totally, totally different conversion process that takes place, which is independent of authentication and has no relevance to it.

[00:18:16] Speaker 02:
And then there's a publication step, which likewise

[00:18:19] Speaker 02:
you can certainly authenticate and you can convert without ever publishing.

[00:18:23] Speaker 02:
In TLI you can't categorize without receiving the information.

[00:18:26] Speaker 02:
It's all connected in TLI as a single entity and that's why it makes sense that it's a single umbrella abstract idea.

[00:18:33] Speaker 02:
I'm just struggling with how do I articulate the abstract idea and as I said before maybe there are two or three but

[00:18:42] Speaker 01:
I would suggest here that the authentication is sort of bound up with publishing.

[00:18:47] Speaker 01:
It is authentication for the purpose of publishing.

[00:18:49] Speaker 01:
That is the reason that you are performing the authentication step.

[00:18:53] Speaker 01:
And that conversion is inherent in the notion that what we are doing here is this step of authenticating for publication, something to be published on the web.

[00:19:02] Speaker 01:
And so I understand, I think as in TLI there are different concepts, but I think here these are concepts are linked.

[00:19:11] Speaker 01:
We look at the claim.

[00:19:12] Speaker 01:
There's no detail.

[00:19:14] Speaker 01:
There's no specificity.

[00:19:16] Speaker 01:
There's nothing technological that is set forth in the claim with respect to conversion or publication.

[00:19:23] Speaker 01:
What is set forth in the claim with specificity is this either means for identifying or identifying step that relates to this security scheme.

[00:19:33] Speaker 01:
I also think under this court's precedent,

[00:19:35] Speaker 01:
the court can look to what the specification sets forth as being the novel feature of the invention, which in the distinction over Bobo is described as being this security scheme.

[00:19:48] Speaker 02:
But this is like, it's almost as though you want to return me to the world of the gist or heart of the invention pre-1952 and use that as the basis for invalidating claims.

[00:19:58] Speaker 02:
I mean, the legislature said that's no good, you know, 70 years ago.

[00:20:02] Speaker 02:
I'm really not comfortable with the idea that I should extract from the claim the most novel element and then decide whether that's abstract or not.

[00:20:11] Speaker 02:
That makes me feel very uncomfortable as a rule of law.

[00:20:14] Speaker 01:
I understand.

[00:20:17] Speaker 01:
But I would suggest that it is permissible to look to the specification to understand the invention that is being claimed for purposes of the 101 analysis.

[00:20:29] Speaker 01:
I do want to make sure that I have time to address any questions.

[00:20:32] Speaker 03:
I would have thought that your argument would have been that looking at the claims as a whole, the notion of converting information from one format to another is abstract also.

[00:20:43] Speaker 01:
Well, it certainly is.

[00:20:45] Speaker 01:
I think that is a reasonable way to look at it, Your Honor.

[00:20:49] Speaker 03:
I also do think that... Particularly when we look at these claims, which does not give any detail on how the conversion is done, and even once you get to the specification, I think just refers to conventional methods of conversion.

[00:21:05] Speaker 03:
There is not a new algorithm or method for doing the data conversion, is there?

[00:21:11] Speaker 01:
That is absolutely correct, Your Honor.

[00:21:13] Speaker 01:
There is nothing that is indicated as being anything other than conventional.

[00:21:17] Speaker 01:
with respect to the technological accoutrements of the claim.

[00:21:23] Speaker 01:
It's a central processor.

[00:21:25] Speaker 01:
There's a sender account.

[00:21:26] Speaker 01:
And there is some method that there is a step of conversion.

[00:21:31] Speaker 01:
But there is nothing that is specified with respect to how that is done or any indication that it would itself be novel.

[00:21:36] Speaker 02:
This is where I tried to get you to go with the outset, but I couldn't get you there.

[00:21:39] Speaker 02:
I'm glad that Judge Hughes did.

[00:21:40] Speaker 02:
I said maybe this is a case where there are two abstract ideas or three instead of one.

[00:21:44] Speaker 02:
And does that make it any less abstract?

[00:21:46] Speaker 02:
But you weren't biting with me, but I guess he did it more effectively than I did.

[00:21:51] Speaker 01:
I did not mean to suggest that that would not be the case.

[00:21:54] Speaker 01:
And certainly to the extent that that is considered a separate idea, it would.

[00:21:58] Speaker 01:
I agree, be an abstract one.

[00:21:59] Speaker 01:
There's nothing concrete about it.

[00:22:03] Speaker 01:
With respect to the infringement issues, I did briefly touch on the format issue.

[00:22:10] Speaker 01:
There is also the issue of the central processor.

[00:22:14] Speaker 01:
And the notion that that element has been claimed in entirely functional terms.

[00:22:20] Speaker 01:
Easy Web's construction is such that any computer or set of computers satisfies that limitation.

[00:22:27] Speaker 01:
And there would be no universe in which the specific requirements that particular steps be performed by the central processor would not be satisfied because the central processor is defined entirely recursively to be any computer or set of computers that does anything.

[00:22:44] Speaker 01:
Not only does that effectively vitiate the claim elements that require software in the central processor to perform particular functions in particular claims,

[00:22:55] Speaker 01:
But the specification distinguishes between the central processor and the internet server.

[00:23:01] Speaker 01:
And under EZWeb's proposed construction, that distinction would make no difference, because any computer would form part of the central processor.

[00:23:11] Speaker 01:
Unless the court has any further questions, I will see the remainder.

[00:23:16] Speaker 04:
No.

[00:23:16] Speaker 04:
Thank you, Ms.

[00:23:18] Speaker 04:
Dury.

[00:23:18] Speaker 04:
Thank you.

[00:23:19] Speaker 04:
Mr. Kellman has some rebuttal time.

[00:23:20] Speaker 00:
Thank you.

[00:23:24] Speaker 00:
Let me address the question with regard to multiple abstract ideas that Judge Moore and Judge Hughes raised.

[00:23:32] Speaker 00:
If we distill claims down to every little piece of them and then say taking multiple and say each one of the little individual things in there is abstract and then say, well, you add them all together, you now have an abstract idea, then I think we can probably do that with just about every single claim, depending on how much you divide it.

[00:23:52] Speaker 00:
We have to step back and understand what is the technological problem that's there.

[00:23:58] Speaker 00:
The problem is, how do I publish information on the web?

[00:24:02] Speaker 00:
It sounds easy today.

[00:24:03] Speaker 00:
We're sitting in 2017.

[00:24:04] Speaker 02:
That wasn't what you said was the problem in your spec though.

[00:24:07] Speaker 02:
The problem that you identified in your spec was all about authentication.

[00:24:11] Speaker 02:
didn't seem to be.

[00:24:12] Speaker 02:
I mean, where do you identify the problem at a real level is how to publish on the web?

[00:24:19] Speaker 02:
I mean, that you seem to acknowledge in the spec itself is already known.

[00:24:24] Speaker 02:
People know how to publish stuff on the web.

[00:24:25] Speaker 00:
Well, right.

[00:24:26] Speaker 00:
OK.

[00:24:26] Speaker 00:
So I apologize.

[00:24:28] Speaker 00:
So the idea in the specification is permitting people

[00:24:37] Speaker 00:
to publish, not, it is true, right, an individual who has knowledge about how to design a webpage can certainly have done that before.

[00:24:47] Speaker 00:
There's no disagreement on that.

[00:24:50] Speaker 00:
The purpose of the invention was to enable others through means that they had at their disposal to start publishing on the web.

[00:25:02] Speaker 00:
It's a paradigm shift in the way

[00:25:05] Speaker 00:
web publishing at that time was done.

[00:25:07] Speaker 00:
At the time, you had to have a knowledgeable web author, essentially, or pay for one of them.

[00:25:15] Speaker 00:
Now you're taking devices that existed, phones, email, fax machines, et cetera, and converting them into web publishing devices.

[00:25:27] Speaker 00:
That's a solution to a real world problem that individuals had.

[00:25:32] Speaker 00:
Now, how it's done, it's not a complicated process.

[00:25:36] Speaker 00:
I'm not suggesting that it's there, but it's a real unique way of approaching that problem where you then, you look, you have to deal with the issue of it's coming from multiple different places.

[00:25:49] Speaker 00:
So it's not just coming from a phone, it's not just coming from a computer.

[00:25:52] Speaker 00:
How do I deal with that situation?

[00:25:53] Speaker 00:
Well, Mr. Cadegnaio deals with that situation by

[00:25:58] Speaker 00:
by looking at the format of the message that's coming in.

[00:26:02] Speaker 00:
That's a novel thing.

[00:26:05] Speaker 00:
There's actually nothing in the record, even though Twitter constantly says over and over again, looking at the format of a message in order to authenticate or identify was somehow commonplace.

[00:26:18] Speaker 00:
There's nothing in the record to support that other than a statement by their expert that it was because of this Freistat reference.

[00:26:27] Speaker 00:
But the Freistat reference, first of all, doesn't say that.

[00:26:31] Speaker 00:
And second of all, the Freistat reference is a patent that we're talking about here.

[00:26:35] Speaker 00:
It was a new and novel thing just slightly before.

[00:26:38] Speaker 02:
I don't understand how you're arguing this is not conventional.

[00:26:44] Speaker 02:
Your argument boils down to, it's not conventional to identify a user by virtue of their phone number.

[00:26:52] Speaker 00:
No, that is not my argument.

[00:26:55] Speaker 02:
Yes, it is.

[00:26:57] Speaker 02:
this patent discloses identifying the user not with a special password or any sort of account, but rather by recognizing the fax number.

[00:27:06] Speaker 02:
It's one of the examples given in the patent.

[00:27:08] Speaker 02:
Recognizing the fax number and knowing that this fax number is authorized to use this publishing software.

[00:27:14] Speaker 02:
So you're saying to me that the non-conventional aspect is

[00:27:20] Speaker 02:
to recognize that a facts number corresponds to a unique individual.

[00:27:25] Speaker 00:
No, I'm not saying that.

[00:27:26] Speaker 00:
What I'm saying is that non-conventional aspect of this is recognizing who it is

[00:27:34] Speaker 00:
from a multitude of different types of information coming in.

[00:27:39] Speaker 00:
So for example, in the example that you just gave.

[00:27:41] Speaker 02:
But in the case of a fax, the fax number is the method of identification.

[00:27:46] Speaker 00:
Sure, that's one way to do that.

[00:27:47] Speaker 02:
There are other ways, right?

[00:27:48] Speaker 02:
And so you're saying that what's not conventional is identifying authorized user by virtue of their fax number.

[00:27:56] Speaker 02:
I don't know.

[00:27:56] Speaker 02:
I had caller ID in 2009.

[00:27:59] Speaker 00:
I understand that.

[00:27:59] Speaker 00:
And let me try to address that issue.

[00:28:02] Speaker 00:
What's non-conventional here is not the fact that there's a caller ID or that you can read a fax header.

[00:28:10] Speaker 00:
The non-conventional thing is that when systems were accepting and authorizing individuals at the time, back in that time frame,

[00:28:17] Speaker 00:
They would do it, it's talked about, with a passcode.

[00:28:20] Speaker 00:
That would be sort of a uniform way to do it.

[00:28:23] Speaker 00:
The idea of changing the way you authenticate, changing it based on the different types of messages that are coming in, that's the non-conventional thing.

[00:28:33] Speaker 00:
And there actually is nothing in the record, as I said, short of this Freistadt reference that suggests that that was conventional, the idea of changing it depending on what it was.

[00:28:43] Speaker 04:
Thank you, Counselor.

[00:28:45] Speaker 04:
Thank you.

[00:28:58] Speaker ?:
The Honorable Cora is adjourned until this afternoon at 2 o'clock.