[00:00:02] Speaker 01:
Good morning, everyone.

[00:00:04] Speaker 01:
The first argued case this morning, December 16, 2604, Front Row Technologies against MLB Advanced Media.

[00:00:14] Speaker 01:
Mr. Schuler.

[00:00:24] Speaker 04:
May it please the court.

[00:00:26] Speaker 04:
There are three major deficiencies in the district court's ruling I'd like to address today.

[00:00:30] Speaker 04:
First, the District Court did not infer all factual disputes would be resolved in favor of the front row as required by Rule 12 and this Court is holding in digital memories.

[00:00:40] Speaker 04:
Second, the District Court failed to construe the claims in light of the specifications of the patents at issue and in fact chose a representative claim that is not in fact representative because there are no representative claims in this broad portfolio.

[00:00:54] Speaker 04:
Third, the District Court misapplied House and its progeny and did so in exactly the manner

[00:01:00] Speaker 04:
repeatedly warned against by the Supreme Court.

[00:01:03] Speaker 04:
The district court looked for an abstraction and adjusted its lens to find one, eviscerating the presumption of validity and paying only lip service to the clear and convincing evidence standard.

[00:01:14] Speaker 04:
In essence, the district court did what the appellant's brief is trying to do.

[00:01:18] Speaker 04:
And when I looked at this brief, I thought it was amazing that they highlight for you what they want you to look at and ignore 90% of the claim language.

[00:01:29] Speaker 01:
Doesn't everyone do that?

[00:01:32] Speaker 04:
I've never seen it before, but maybe I haven't been around the block as many times.

[00:01:36] Speaker 04:
But if you have to highlight a claim's abstraction to see it, the claim isn't abstract.

[00:01:42] Speaker 04:
Do you think we should adopt that as a principle?

[00:01:45] Speaker 04:
I think if someone has to ask you to ignore 90% of the claim to find an abstraction, I think that the presumption should be it's not abstract.

[00:01:52] Speaker 04:
Absolutely.

[00:01:53] Speaker 04:
Now, let's take a look at the law of abstraction.

[00:01:55] Speaker 03:
Well, on that, we can certainly presume

[00:01:59] Speaker 03:
things that claims are patent-eligible, but we certainly not only had claims that had many, many, many words in them that were easily identified as coming down to something that was abstract and adding nothing even assertively inventive.

[00:02:22] Speaker 03:
Well, here the words that Drasty used are the enabling words.

[00:02:25] Speaker 04:
They're the words that actually put meat and bones on the idea.

[00:02:29] Speaker 04:
And so when you look at the words, and we'll get into it if necessary in detail, but the words that they're asking you to ignore are concrete, limited, specific examples of how to implement the invention.

[00:02:41] Speaker 04:
I can take any patent and highlight a few words in the patent and say that's abstract if I ignore specific, implementing, non-preemptive language.

[00:02:51] Speaker 03:
But if you wrote an extremely extensive claim with many concrete

[00:02:57] Speaker 03:
limiting non-preemptive terms, all of which are not even assertively an advance, it wouldn't be any good, would it?

[00:03:07] Speaker 04:
Well, that's not the situation we have here.

[00:03:09] Speaker 04:
But of course what you're saying is a truism.

[00:03:13] Speaker 04:
If something's not original and not inventive and doesn't use anything other than conventional ways, there's no combination.

[00:03:19] Speaker 04:
Of course it's not patentable.

[00:03:20] Speaker 04:
That would go to a 102, 103.

[00:03:22] Speaker 04:
I mean, there's no reason that that's exactly what you're talking about.

[00:03:25] Speaker 04:
There's nothing new.

[00:03:26] Speaker 04:
There's nothing useful.

[00:03:27] Speaker 04:
There's nothing novel.

[00:03:28] Speaker 04:
That's a 102, 103 analysis.

[00:03:30] Speaker 04:
That's not a 101 analysis.

[00:03:32] Speaker 03:
Well, except that those statutory provisions are no longer quite as distinct as maybe the patent bar once thought.

[00:03:41] Speaker 04:
Yes.

[00:03:42] Speaker 04:
The patent bar was instructed by this court about KSR, that the specification teaches, the claims claim.

[00:03:48] Speaker 04:
People prosecuted hundreds of thousands of patents with that idea.

[00:03:52] Speaker 04:
And then supposedly now we're going to turn that on its head and say that the patents have to teach every aspect of enablement of the invention, and you can sort of ignore the specification.

[00:04:02] Speaker 04:
I mean, there's patent practitioners out there who have built entire careers based on KSR.

[00:04:07] Speaker 04:
What the whole idea is, I'm going to try to get you as broad claims as possible.

[00:04:11] Speaker 04:
We'll teach them the specification.

[00:04:13] Speaker 04:
We'll go into the detail and specification according to KSR, just like we were told to do.

[00:04:18] Speaker 04:
And now people who prosecuted patents that way are being told that what they've done

[00:04:22] Speaker 04:
is in a disservice to their client because they rendered their claims abstract.

[00:04:27] Speaker 04:
That's not the situation we have here.

[00:04:29] Speaker 04:
And the situation we have here is very different.

[00:04:31] Speaker 02:
But what we have here is a situation when the application was filed that was well known to have streaming video to handheld devices, correct?

[00:04:43] Speaker 02:
No, absolutely not.

[00:04:44] Speaker 02:
Not correct.

[00:04:45] Speaker 02:
No.

[00:04:46] Speaker 04:
And there's no proof of that anywhere in the record.

[00:04:48] Speaker 04:
As a matter of fact, if you don't look... Well, I thought the specification pretty much said that.

[00:04:52] Speaker 04:
The specification talks about something that we're mixing apples and oranges here.

[00:04:57] Speaker 04:
Because what the law is, is that if you use something in a conventional way, a completely conventional way.

[00:05:05] Speaker 02:
But please address my question, which is whether it was well known to have streaming video to handheld devices.

[00:05:12] Speaker 02:
And the specification talks about the existence of handheld devices at the time

[00:05:21] Speaker 02:
of the application, the receipt of video on those devices.

[00:05:27] Speaker 02:
Why is my statement wrong in the light of your own specification?

[00:05:31] Speaker 02:
It was something that had been disclosed.

[00:05:33] Speaker 04:
It was not conventional.

[00:05:35] Speaker 04:
It was not well known.

[00:05:36] Speaker 04:
If you go look up cell phones in 2000, you get the candy bar phones of Nokia.

[00:05:41] Speaker 04:
There's no packaged, compressed data.

[00:05:44] Speaker 04:
So the difference is between what was known and what was well known?

[00:05:49] Speaker 04:
We know right now about flying cars, but they're not conventional.

[00:05:53] Speaker 04:
We know right now about holographic telephones, where you pick up the telephone and there's a holographic display of your mother when you talk to your mom.

[00:06:00] Speaker 04:
That doesn't make it conventional.

[00:06:02] Speaker 04:
The fact that something is in the prior art doesn't make it conventional, doesn't make it well known.

[00:06:07] Speaker 04:
It means that someone thought of it.

[00:06:09] Speaker 04:
So that's a disconnect about people say, well, it's in the prior art.

[00:06:14] Speaker 04:
If everything that's in the prior art is needing to be conventional, there's nothing left to invent.

[00:06:19] Speaker 04:
I mean, there's literally nothing left to invent.

[00:06:21] Speaker 04:
If we're going to say that it's in the prior art, it's conventional.

[00:06:23] Speaker 04:
Conventional means commonly in use.

[00:06:26] Speaker 02:
So what's the invention here?

[00:06:28] Speaker 02:
Put aside the location of the viewer limitation.

[00:06:32] Speaker 02:
What's inventive about streaming video to handheld devices?

[00:06:41] Speaker 02:
What's going on?

[00:06:43] Speaker 02:
Well, that's not what was invented.

[00:06:45] Speaker 04:
What was invented is it decoupled

[00:06:47] Speaker 04:
Physical presence with perspective.

[00:06:50] Speaker 04:
Let me give you an example.

[00:06:51] Speaker 04:
I'm sitting here, and I'm in the room.

[00:06:52] Speaker 04:
I can change my perspective.

[00:06:54] Speaker 04:
I can look at you.

[00:06:54] Speaker 04:
I can look at you.

[00:06:56] Speaker 04:
I can look at you.

[00:06:57] Speaker 04:
I can change the perspective of what I look at.

[00:06:59] Speaker 04:
What this did was said, if you're not present, not only if you're not present, but if you are anywhere that can be authorized, then you can change your perspective yourself.

[00:07:09] Speaker 04:
And you can do it dynamically.

[00:07:11] Speaker 04:
You choose.

[00:07:11] Speaker 04:
The prior art was the television station told you where you had to look.

[00:07:16] Speaker 04:
The streaming video person even told you what you're good to see.

[00:07:20] Speaker 04:
What this said was, you get to be anywhere.

[00:07:22] Speaker 04:
Now you have to be authorized.

[00:07:23] Speaker 04:
It can be authorized by geolocation.

[00:07:26] Speaker 04:
It can be authorized because you paid and you have a decryption code or something like that.

[00:07:31] Speaker 04:
But once you are authorized, you can receive through a handheld device with a touch sensitive display capable of showing multiple different perspectives.

[00:07:40] Speaker 04:
You can choose the perspective and you can decide what you see and how you see it.

[00:07:45] Speaker 04:
That had never been done.

[00:07:46] Speaker 04:
It's not conventional.

[00:07:48] Speaker 04:
It wasn't conventional in 2000.

[00:07:50] Speaker 04:
It wasn't conventional in 2005.

[00:07:52] Speaker 04:
It wasn't conventional in 2009.

[00:07:54] Speaker 04:
It had not been done.

[00:07:56] Speaker 04:
We never got an opportunity to put an expert witness on the stand to actually testify about what made this special, what made it different, what made it inventive, and what made it different from anything that had ever come before.

[00:08:09] Speaker ?:
We never got that chance.

[00:08:11] Speaker 04:
And as a matter of fact, this basically said,

[00:08:14] Speaker 04:
I have no idea how, just basically say my own historical observations, without even saying what those historical observations were.

[00:08:22] Speaker 03:
I don't remember.

[00:08:23] Speaker 03:
When you talk about choosing perspective, you're not talking about the user controlling the angle of the camera, but rather selecting among existing feeds.

[00:08:36] Speaker 03:
No, Your Honor.

[00:08:37] Speaker 03:
Some of these claims actually allow the user to zoom and pan.

[00:08:41] Speaker 04:
Again, when you get into the dependent claims, which the court ignored, never talked about, never did anything about, these claims go far beyond anything that is being discussed in the defendant's brief in their highlighted sections.

[00:08:55] Speaker 04:
And they do that because they are literally trying to adjust your lens, adjust your focus to a 50,000 foot level and ignore the true purpose of the invention, which is to decouple.

[00:09:09] Speaker 03:
generalizing your argument to be an argument that says, this whole 101 system has gone awry, and I want all my claims.

[00:09:18] Speaker 03:
Can you focus on one very specific thing?

[00:09:21] Speaker 03:
Does one of the claims, and have you featured it, claim me as a handheld device user controlling a camera on the side of the football field?

[00:09:38] Speaker 04:
and a pan and what do you call it?

[00:09:43] Speaker 04:
Zoom.

[00:09:43] Speaker 04:
There's a pan and zoom feature that is part of one of the clients.

[00:09:47] Speaker 04:
But let's get into the clients, because I think that's sort of what I'm hearing from you.

[00:09:53] Speaker 02:
Could you tell me where in your brief you make this argument about the pan and zoom feature being what renders this not abstract

[00:10:04] Speaker 04:
I never considered the pan and zoom feature to be what Render did not extract.

[00:10:09] Speaker 04:
I mean, the level of abstraction, once you get down to that point, I mean, I think it's not... So it's not there in the brief?

[00:10:15] Speaker 04:
No sir, it's not in the brief.

[00:10:16] Speaker 04:
But that's... I thought this was the first time I'd heard about this.

[00:10:20] Speaker 04:
But what we have here is we have... Take the old one-way communication from a television, okay?

[00:10:30] Speaker 04:
One-way, analog, one-way.

[00:10:32] Speaker 04:
This added

[00:10:33] Speaker 04:
The front row portfolio has user authentication via two-way secure communication.

[00:10:38] Speaker 04:
If you get a handheld device, the handheld device has to be touchscreen capable of displaying more than one view at a time to allow the user to select the view.

[00:10:48] Speaker 02:
So let's talk about what you said in your brief instead of what you're saying here now today.

[00:10:54] Speaker 02:
What is it you said in your brief rendered this non-abstract?

[00:10:59] Speaker 02:
Well, it's not abstract because exactly what I'm saying now is it's a combination

[00:11:03] Speaker 02:
Well, let's see where you make this argument in the brief.

[00:11:07] Speaker 02:
I'd like to see where in the brief you make the argument that's not abstract and on what theory.

[00:11:15] Speaker 04:
But what is it that's added to it?

[00:11:17] Speaker 04:
From beginning to the end of the brief, we talk about the combination of elements, the combination of technology, non-conventional technology that renders these things completely, totally novel, new, never before done and hadn't been done even five, seven, eight years afterwards.

[00:11:33] Speaker 04:
They built a $6 billion company on something they say is obvious, which to me is, we make a... Yeah, but I'll tell you, an abstract argument about why something's not abstract is probably not going to cut it.

[00:11:46] Speaker 04:
Well, the reason why it's not abstract is because two-way secure authentication, the transmission of video to a handheld device in 2000 via packet and compressed to a handheld device capable of decompressing, de-packeting and displaying

[00:12:01] Speaker 04:
The transmission has to comply with IEEE 802.11 standard.

[00:12:05] Speaker 04:
You can't be less abstract than that.

[00:12:08] Speaker 04:
You're actually calling out the standard for the Wi-Fi.

[00:12:12] Speaker 04:
The handheld device has to be one that can process and decompress encrypted packet of data, not just any packet of data.

[00:12:19] Speaker 04:
The 856 patent requires that the display be touch sensitive, that simultaneously and singularly displays venue-based data,

[00:12:29] Speaker 04:
The 856 Patent Claim 2 requires the use of access codes.

[00:12:32] Speaker 04:
Claim 6 calls for a CDMA cell network.

[00:12:36] Speaker 04:
The 184 Patent requires bi-directional communication constantly between the sender and the user so that the dynamic use and changing of the perspective is always present.

[00:12:49] Speaker 04:
The 184, 856, 460, and 895 patents all claim more than one video perspective from more than one camera will be transmitted at the same time to the handheld device, something that had never been done before and wasn't done for several years.

[00:13:03] Speaker 04:
The consumers were allowed to choose the video feed, unlike in television where when you go to channel 12, you get channel 12, you don't have any choice.

[00:13:12] Speaker 04:
I don't have time to go over all the limitations in the 98 claims wiped out by the district court without a single reference to the specification or prior art, but any fair reading reveals that the specifications and the claims are far more than over the internet or on a computer, those type of generic limitations.

[00:13:33] Speaker 04:
The described inventions are not abstract.

[00:13:36] Speaker 04:
The analysis should have ended right there.

[00:13:38] Speaker 04:
I've only got two minutes left for my rebuttal, so I'm sorry.

[00:13:41] Speaker 01:
Thank you.

[00:13:57] Speaker 05:
Good morning, Your Honors.

[00:13:58] Speaker 05:
If it please the Court.

[00:14:01] Speaker 05:
I want to address just a couple of the questions that the Court asked so that the record is clear.

[00:14:07] Speaker 05:
The asserted claims in this case do not include payments

[00:14:12] Speaker 05:
That is not a feature in the asserted client.

[00:14:15] Speaker 05:
With respect to your honor's question, if you look at the bottom of column two through column three of the 895 patent, the 895 patent lays out exactly what your honor was questioning, which is, according to the specification itself,

[00:14:35] Speaker 05:
And that's what the district court looked at was the specification of these patents.

[00:14:39] Speaker 05:
And they all five share a common specification largely.

[00:14:44] Speaker 05:
And that specification makes clear that at the time of the filing of the patent application, all of these features were well known.

[00:14:52] Speaker 05:
And in fact, what the specification says is that at the time, there were video enabled PDAs, Personal Digital Assistance Handheld Devices,

[00:15:04] Speaker 05:
At the time, they were video enabled.

[00:15:07] Speaker 05:
And in fact, there were brand names of those particular devices that were available on the market.

[00:15:14] Speaker 05:
So the notion that transferring video to a PDA was some new or revolutionary concept is just not supported by the specification, not by my assertion or the courts below assertion by the specification.

[00:15:30] Speaker 02:
Well, I guess the inventive quality of the thing doesn't have to be supported by the specification.

[00:15:37] Speaker 02:
But one of the objections they make is that they said they should have had the opportunity to present evidence as to why various features were inventive.

[00:15:51] Speaker 02:
Some of them seem on their face not to be inventive, such as using that particular industry standard.

[00:15:57] Speaker 02:
But what's your answer to the fact that this was done as judgment on the pleadings instead of, say, summary judgment with an opportunity for discovery?

[00:16:07] Speaker 05:
Well, the issues that were raised by Front Row, as I understand them, is there is no contesting on their part that various wireless networks that are discussed in the specification were known.

[00:16:21] Speaker 05:
Various handheld devices were known.

[00:16:23] Speaker 05:
That the various components, basically, of every single claim

[00:16:26] Speaker 05:
was known, even the notion of multiple cameras.

[00:16:31] Speaker 05:
It says in the specification, again, that those were known.

[00:16:33] Speaker 05:
So I don't think that is their objection.

[00:16:37] Speaker 05:
Their objection really is a conflation of novelty, because their argument is nobody had ever done this before in 2000.

[00:16:46] Speaker 05:
Ignore the reference that I just pointed your honor to, which is that it was well known.

[00:16:51] Speaker 05:
And in fact, devices weren't able to receive it

[00:16:55] Speaker 05:
Their argument is that this particular combination had not been specifically done before.

[00:17:01] Speaker 05:
But we have two problems with that.

[00:17:04] Speaker 05:
First of all, that's a novelty argument.

[00:17:06] Speaker 01:
That's correct, is it not?

[00:17:08] Speaker 01:
That it had never been done before?

[00:17:09] Speaker 01:
At that stage in the beginning when these devices were known?

[00:17:13] Speaker ?:
I'm sorry?

[00:17:15] Speaker 01:
That the combination had not been made because they may have been known because they were new

[00:17:25] Speaker 01:
But drawing the distinction between known and well-known is their argument, is it not?

[00:17:31] Speaker 05:
Well, so their argument is twofold.

[00:17:34] Speaker 05:
One is, for example, was a video-enabled phone known?

[00:17:39] Speaker 05:
And he's saying yes.

[00:17:40] Speaker 05:
The spec says yes.

[00:17:41] Speaker 05:
And then the argument is, was it well-known?

[00:17:44] Speaker 05:
But the particular combination, that's not really the inquiry as to whether or not this is novel.

[00:17:49] Speaker 05:
That's a 102 argument or a 103 argument.

[00:17:52] Speaker 05:
From a one-on-one perspective, what we have is we have planes, much like in electric power or much like in content extraction, tracked at a very high level of functionality.

[00:18:04] Speaker 05:
They're very result-oriented and functionally claimed.

[00:18:09] Speaker 05:
You're going to capture video.

[00:18:11] Speaker 05:
You're going to process the video.

[00:18:13] Speaker 05:
You're going to transmit the video to a device that can receive the video and then display it.

[00:18:18] Speaker 05:
That's effectively what they claim in every single claim that's asserted in this case.

[00:18:24] Speaker 03:
And the notion of pattern.

[00:18:27] Speaker 03:
And what's novel is the content of the video that they are putting through that process.

[00:18:34] Speaker 05:
They're not really even saying that the novelty lies in the content itself.

[00:18:38] Speaker 05:
Now, I heard Mr. Schor stand up here and say that the novelty was the ability to pan and to be able to zoom, to control what the camera is doing.

[00:18:47] Speaker 05:
None of that appears in the assertive claims, by the way, because they don't have to.

[00:18:51] Speaker 03:
That may be more than a by-the-way point.

[00:18:53] Speaker 03:
That might actually be something significant, had it been part of the case.

[00:18:59] Speaker 03:
A remote control of the camera on the field, to use a term that sounds like it might even be technological.

[00:19:10] Speaker 05:
It could be new.

[00:19:12] Speaker 05:
I'm not sure it's technological.

[00:19:15] Speaker 05:
for a user, not the person who's running the camera to control it, could be new at that time.

[00:19:21] Speaker 05:
That's not an issue that's been briefed.

[00:19:23] Speaker 05:
It's frankly not an issue that was presented below.

[00:19:28] Speaker 05:
The point is that when you claim these things at a very high functional level, there's no dispute that the combination of capturing data, processing it for transmission, transmitting it, receiving it at a portable device,

[00:19:43] Speaker 05:
and then displaying that information was known at the time.

[00:19:46] Speaker 02:
How do we know that?

[00:19:47] Speaker 02:
Well, maybe.

[00:19:48] Speaker 02:
But what I understand them to be saying, and they argued to the district court, is that they were entitled to conduct discovery and make a factual showing as to why some of these features were innovative.

[00:20:10] Speaker 02:
And they're all sorts of, you know,

[00:20:13] Speaker 02:
20 different things are listed here on appeal.

[00:20:16] Speaker 02:
Some of them weren't even in the brief.

[00:20:18] Speaker 02:
What I'm trying to get at is what exactly did they say that they wanted to conduct discovery on, and is it something where they needed discovery?

[00:20:30] Speaker 02:
This report at 87 and 88 gives, I guess, six examples of

[00:20:38] Speaker 02:
so-called factual disputes and the district court says no those aren't factual disputes because they are found in the specification or they were well known and there's no need for factual discovery.

[00:20:53] Speaker 02:
So could you address that question?

[00:20:55] Speaker 05:
Yes, the district court was correct because the issues as I understand Front Row's argument is not whether or not the 802.11 standard was well known.

[00:21:08] Speaker 05:
at the time, and that it was a wireless network protocol.

[00:21:11] Speaker 05:
That's not what they're saying they need discovery on.

[00:21:13] Speaker 05:
What they want discovery on, and what they want to have an expert state, and what their purported expert declaration stated, was that this combination of elements had never been done before.

[00:21:26] Speaker 05:
But that, again, is not the test.

[00:21:29] Speaker 02:
So they put in an expert declaration at the time of the motion for judgment on the pleadings?

[00:21:37] Speaker 05:
As I recall, there was an expert declaration that they were asking to have considered at the motion on the pleading stage.

[00:21:48] Speaker 05:
And the court properly said, no, I don't need to go into those issues because the specification itself.

[00:21:55] Speaker 02:
So the declaration raised certain issues, and the district court said, I don't need discovery on that because those are already in the specification.

[00:22:03] Speaker 02:
Correct.

[00:22:04] Speaker ?:
Correct.

[00:22:05] Speaker 05:
And so what we have is, again, what they want to point out is the novelty of the combination of elements, not any individual element.

[00:22:16] Speaker 05:
So they're not going to stand up here and say they came up with a new method of streaming, that they came up with a new wireless network, a new handheld device, or any of the various components.

[00:22:26] Speaker 05:
They're saying the combination is novel in their view.

[00:22:29] Speaker 05:
That's their argument.

[00:22:30] Speaker 05:
And therefore, it passes the 101 muster.

[00:22:34] Speaker 05:
It must pass 101.

[00:22:36] Speaker 05:
But that's not what this court's decisions have repeatedly held.

[00:22:40] Speaker 05:
In fact, in the affinity labs cases, which are directly on point in this case, in the affinity labs decisions, patents that were directed to the exact same subject matter

[00:22:52] Speaker 05:
same priority dates.

[00:22:54] Speaker 05:
So they were both circa 2000.

[00:22:57] Speaker 05:
In fact, the Infinity Labs patents had earlier priority dates than the Front Row patents.

[00:23:02] Speaker 05:
Those patents claimed the same basic concept, taking data, transmitting it wirelessly, including video data, to handheld devices.

[00:23:10] Speaker 05:
And the same argument was made in the Infinity Labs case.

[00:23:14] Speaker 05:
This is new.

[00:23:15] Speaker 05:
This is novel.

[00:23:16] Speaker 05:
And they submitted a declaration in that case.

[00:23:20] Speaker 05:
from an expert, saying that this was new and novel.

[00:23:24] Speaker 05:
And the court looked at those issues and properly found that the claims were directed to an abstract idea in large part because of this functional claiming.

[00:23:34] Speaker 05:
And no specification or no claiming as to the how this was accomplished.

[00:23:41] Speaker 05:
Streaming may have been a difficult challenge in 2000 of a video.

[00:23:49] Speaker 05:
You will look throughout the specification and not find the solution to that particular problem, any more so than was the case in the Affinity Labs decision, whether it was Affinity Labs versus DirecTV or Affinity Labs versus Amazon.

[00:24:04] Speaker 05:
The district court in this case did not have the advantage of this court's decisions in those two cases.

[00:24:11] Speaker 05:
We did.

[00:24:13] Speaker ?:
their binding precedent.

[00:24:14] Speaker 05:
They found the same basic in Amazon, the same basic abstract idea, which was the providing of media content.

[00:24:24] Speaker 05:
And in that case, it was user-selected media content to portable devices is an abstract idea.

[00:24:32] Speaker 05:
That was the court's holding.

[00:24:33] Speaker 05:
That applies in this case.

[00:24:36] Speaker 05:
And contrary to the suggestion that Affinity Labs didn't have the requisite detail, it did.

[00:24:42] Speaker 05:
Each of the elements that Mr. Schor just walked through, and the front row goes through in its briefing, each of the elements that it says is missing from Affinity Labs is in the Affinity Labs claims and in the patent specification.

[00:25:01] Speaker 05:
If there are no further questions from your honors, I... Any more questions?

[00:25:06] Speaker 01:
No.

[00:25:07] Speaker 05:
I see the balance of my time.

[00:25:09] Speaker 01:
Thank you, Mr. Weaver.

[00:25:12] Speaker 02:
Let's assume for the moment that we're dealing with two abstract ideas, as the district court said, and we're getting to step two of the House.

[00:25:28] Speaker 02:
You said to the district court, we need discovery and there are fact issues here as to whether there are innovative concepts.

[00:25:36] Speaker 02:
Could you give me an example of

[00:25:39] Speaker 02:
what you wanted to develop through discovery and why it was error for the district court not to allow that.

[00:25:50] Speaker 04:
Yes.

[00:25:51] Speaker 04:
That's my hand.

[00:25:53] Speaker 04:
The district court found factually that the descriptions of the technology were conventional in 2000 without the aid of any evidence, without the aid of any expert testimony.

[00:26:02] Speaker 04:
That's a problem.

[00:26:03] Speaker 04:
If any conclusion was to be drawn at the rule 12th stage, it must be that the technology as described was not conventional on the patent filing date, because all such presumptions should have been in our favor.

[00:26:14] Speaker 03:
If he was going to make the presumption... But I think I just... I mean, I understand the judge would like to ask you for a specific description of a specific fact that you told the district judge you wanted to put in evidence and take discovery... Exactly.

[00:26:30] Speaker 03:
What is that?

[00:26:31] Speaker 04:
The state of the prior art 2000 and the fact that this combination of technologies was new, novel, useful, never been done before, not anticipated, not obvious, and is enabled.

[00:26:43] Speaker 04:
It boggles my mind that basically the argument that they're making that if anything is enabled with the use of technology that exists... Did your expert address this question that you're about the combination?

[00:26:57] Speaker 02:
Yes, we can... Where?

[00:27:00] Speaker 04:
We were not allowed to put that in the record, Your Honor.

[00:27:02] Speaker 02:
This is not in the record?

[00:27:03] Speaker 04:
No, we weren't allowed.

[00:27:04] Speaker 04:
We asked for permission.

[00:27:06] Speaker 04:
You didn't tender it?

[00:27:06] Speaker 04:
We couldn't, Tim.

[00:27:07] Speaker 04:
We asked for permission to tender to have an expert.

[00:27:10] Speaker 04:
Well, wait.

[00:27:10] Speaker 04:
How did this issue of the discovery come up?

[00:27:13] Speaker 04:
Surely not?

[00:27:13] Speaker 04:
In argument.

[00:27:15] Speaker 04:
He said it for argument.

[00:27:17] Speaker 04:
We went in there.

[00:27:18] Speaker 04:
We had an argument.

[00:27:18] Speaker 02:
So you hadn't briefed it in advance?

[00:27:20] Speaker 04:
No, we weren't allowed to brief it in advance.

[00:27:22] Speaker 02:
You weren't allowed to brief the question of whether there should be judgment on the pleadings?

[00:27:27] Speaker 04:
They filed a judgment on the pleadings, we filed a response saying it was improper under Rule 50, that this should be considered under Rule 56 with evidence and testimony.

[00:27:35] Speaker 02:
Okay, but that's what I'm getting at.

[00:27:36] Speaker 02:
What did you say in your opposition to the motion for judgment on the pleadings as to what you needed discovery about?

[00:27:44] Speaker 02:
I want you to show me something that you told the district court required discovery and evidence.

[00:27:54] Speaker 04:
This entire process required discovery and evidence.

[00:27:57] Speaker 04:
This entire process about what's conventional, whether or not it's a novel combination, whether or not it had ever been done before, this wasn't even done seven years after.

[00:28:05] Speaker 04:
Until the iPhone came out in 2007, none of this had been done before.

[00:28:10] Speaker 03:
None of this was even attempted to be done.

[00:28:12] Speaker 03:
This is a... Do you have a joint appendix site for your brief in opposition to the Rule 12C motion?

[00:28:18] Speaker 03:
I'm sorry, I do not, Your Honor.

[00:28:20] Speaker 04:
Okay.

[00:28:21] Speaker 04:
But getting back to...

[00:28:23] Speaker 04:
The point I wanted to make, what they're basically saying is anything that's enabled using existing technology at the time has to be based upon an abstraction.

[00:28:33] Speaker 04:
Because if you're using technology that existed the day you filed your patent, then it's all conventional.

[00:28:39] Speaker 04:
It's all been done before.

[00:28:40] Speaker 04:
And all you're doing is taking an abstract idea and placing it into a conventional context.

[00:28:46] Speaker 04:
That cannot possibly be the law.

[00:28:48] Speaker 04:
If that is the law, then the law is not slightly moved.

[00:28:52] Speaker 04:
It's tectonically shifted.

[00:28:54] Speaker 04:
The specifications in this case were literally ignored by the court.

[00:28:58] Speaker 04:
In the part of the ruling where he actually ruled, he did not refer to his patent specifications one single time.

[00:29:07] Speaker 04:
And in Fish, this court stated that to determine whether claims as a whole are directed to patent-eligible concepts, the Reviewing Court must apply a state one filter to claims considered in line with the specifications.

[00:29:20] Speaker 02:
He didn't even look at the specification.

[00:29:22] Speaker 02:
That's just not true.

[00:29:24] Speaker 02:
I mean, he looked at the specification and to find it as a source of the abstract idea of which he found to exist.

[00:29:34] Speaker 04:
He looked at the specification and said, I looked at the specification and here's what I conclude.

[00:29:41] Speaker 04:
He never references a single word in it.

[00:29:44] Speaker 04:
There is zero analysis as to what he was thinking or why he did what he did.

[00:29:48] Speaker 04:
And you can't wipe out an entire patent portfolio based upon, I think so, which is what he did.

[00:29:55] Speaker 04:
He just said, I think so.

[00:29:57] Speaker 04:
And getting back to the whole zoom and pan, that's an appendix 793 claims one in eight of the 895 patent, and also compare that with appendix 756.

[00:30:08] Speaker 04:
But not in the brief.

[00:30:10] Speaker 04:
It's in the appendix.

[00:30:11] Speaker 04:
But not in the brief.

[00:30:12] Speaker 04:
It's not in the brief.

[00:30:14] Speaker 04:
In other words, with a page limitation where we've had 98 claims wiped out across an entire portfolio of patents to actually address all the things he should have addressed, I would have needed about 200 pages.

[00:30:26] Speaker 01:
Okay.

[00:30:26] Speaker 01:
I think we have the argument.

[00:30:29] Speaker 01:
Do I ask any more questions of the opposition?

[00:30:33] Speaker 01:
Thank you, Your Honor.

[00:30:34] Speaker 01:
Okay.

[00:30:34] Speaker 01:
Thank you both.

[00:30:35] Speaker 01:
The case is taken under submission.