[00:00:24] Speaker 02:
Okay, the next argued case is number 16, 1788, in Real Saba, Mr. Daherty.

[00:00:34] Speaker 01:
Good morning.

[00:00:36] Speaker 01:
I'm David Doherty, and this is my colleague, Amir Binia.

[00:00:41] Speaker 01:
We represent Chica Latifa Al Saba.

[00:00:48] Speaker 01:
Chica Latifa is a Kuwaiti lady.

[00:00:54] Speaker 01:
And she has developed a unique tactile method for teaching Arabic to illiterate, blind children.

[00:01:13] Speaker 01:
What she's really done, and for the first time, she recognized that these children can't see

[00:01:25] Speaker 01:
the language.

[00:01:28] Speaker 01:
So what she did seems like a very simple idea.

[00:01:32] Speaker 01:
She substituted the sensing or feeling of what the Arabic letter actually looks like.

[00:01:44] Speaker 01:
And this is something that has never been done before in the Arabic language.

[00:01:54] Speaker 01:
Since you can't see it, you have to use feeling.

[00:02:00] Speaker 01:
And she's done this.

[00:02:03] Speaker 01:
And it's unique.

[00:02:06] Speaker 01:
Never been done before over centuries of teaching Arabic.

[00:02:11] Speaker 01:
At least we couldn't find any evidence of it.

[00:02:27] Speaker 03:
Does the fact that it hasn't been done before change the analysis as to whether it's still just the application of an abstract idea?

[00:02:38] Speaker 01:
Yes, it does.

[00:02:40] Speaker 01:
Because if these people need to learn the Arabic language, that's a long-felt motivation for an invention.

[00:02:56] Speaker 01:
since it's been out there and never done before, if it was, it has to be new.

[00:03:07] Speaker 01:
It's unique.

[00:03:08] Speaker 01:
Nobody else has done it.

[00:03:11] Speaker 01:
They would have done it if it had been apparent.

[00:03:18] Speaker 01:
They did not.

[00:03:20] Speaker 03:
Well, is there other than Braille?

[00:03:22] Speaker 03:
Is there no other

[00:03:26] Speaker 03:
methodology that's ever been shown where other forms of feeling particular shapes of letters or numbers have been done?

[00:03:36] Speaker 01:
There has been Braille.

[00:03:38] Speaker 01:
There is a reference that says you can print a portion of the letter of the Roman alphabet.

[00:03:49] Speaker 01:
But

[00:03:50] Speaker 01:
The Arabic language is a lot more complex than the Western languages, at least to me and I'm sure to all of you.

[00:04:02] Speaker 01:
To begin, they write it backwards.

[00:04:07] Speaker 01:
They write from right to left.

[00:04:10] Speaker 01:
Well, in Western languages, we write from left to right, and you read it in that direction.

[00:04:20] Speaker 01:
This is significant.

[00:04:28] Speaker 01:
Where does the last letter come?

[00:04:33] Speaker 01:
It comes to the left.

[00:04:36] Speaker 01:
And the one thing that the prior art has not done is they haven't taken a single symbol and put it at the end of every word.

[00:04:50] Speaker 01:
This means that instead of coming up once every 28 times, one for each letter of the alphabet, it comes up every time a word ends.

[00:05:03] Speaker 01:
That way the young or the child sees it frequently, much more frequently

[00:05:13] Speaker 01:
than in our way of doing it.

[00:05:16] Speaker 03:
I guess I'm still struggling with the notion that I don't have any dispute that this is a clever idea or that what she is proposing is very useful for children that have this disability and are learning the language.

[00:05:33] Speaker 03:
But I don't know that that answers the question of whether you are still just implementing an abstract idea.

[00:05:43] Speaker 01:
It is not.

[00:05:45] Speaker 01:
And the reason it is not is this embossed tail angle inclined to the left.

[00:05:56] Speaker 01:
It's unique, but it's spelled out right in front of the individual.

[00:06:02] Speaker 01:
She can feel it, or he or she can feel the difference.

[00:06:08] Speaker 01:
That had not been done before.

[00:06:12] Speaker 01:
And it's not abstract.

[00:06:15] Speaker 01:
There's just one symbol, a little flag that says, this is the end of the word.

[00:06:22] Speaker 01:
It's specific.

[00:06:24] Speaker 01:
It's precise.

[00:06:26] Speaker 01:
It's not abstract.

[00:06:31] Speaker 01:
Has she registered this with the copyright office?

[00:06:37] Speaker 01:
Yes.

[00:06:38] Speaker 01:
I've looked into the copyright, and we elected

[00:06:41] Speaker 01:
And I'm a patent attorney, basically, and I believe in the patent system.

[00:06:49] Speaker 01:
And the copyright system is fine, but I'm not an artist.

[00:06:55] Speaker 03:
And so it really... But you can have both protections for one or the other, depending on the circumstances, right?

[00:07:03] Speaker 01:
And we chose to emphasize the patent side.

[00:07:08] Speaker 03:
But she also has the copyright protection.

[00:07:10] Speaker 03:
Belt and suspenders?

[00:07:12] Speaker 01:
I don't believe we ever filed for copyright on this.

[00:07:22] Speaker 01:
This is also a unique case.

[00:07:26] Speaker 01:
And the fact that we're relying on two separate cases that were not before the board.

[00:07:36] Speaker 01:
Those cases came into being

[00:07:39] Speaker 01:
One in May of 2016, and the other, I believe, was December of 2015.

[00:07:51] Speaker 01:
Those cases held that there are two cases under 35 USC that held in favor of Sheikh Latifah.

[00:08:10] Speaker 01:
The one is ENFISH, ENFISH LLC versus Microsoft Corp et al.

[00:08:20] Speaker 01:
And the other Decent Phon... Decent Phonoms?

[00:08:26] Speaker 01:
I'm not sure of the pronunciation.

[00:08:29] Speaker 01:
That's okay.

[00:08:32] Speaker 01:
And what we have is this embossed tail angle.

[00:08:39] Speaker 01:
comes at the end of the word, and it's inclined to the left.

[00:08:46] Speaker 03:
So that is what you focus on as your inventive concept?

[00:08:50] Speaker 01:
Yes.

[00:08:52] Speaker 01:
And that's not been done before.

[00:08:55] Speaker 01:
At least we couldn't find any evidence of it.

[00:09:01] Speaker 01:
In Destafano, they said that you cannot use a general law

[00:09:08] Speaker 01:
for obviousness.

[00:09:13] Speaker 01:
We don't have a general law.

[00:09:15] Speaker 01:
We have a specific shape that is shown and called for in the claim.

[00:09:26] Speaker 01:
The gist of our invention is this tail angle.

[00:09:33] Speaker 01:
Let me say on the complexity of Arabic,

[00:09:37] Speaker 01:
In English, we have uppercase and lowercase letters.

[00:09:43] Speaker 01:
In Arabic, you have three cases.

[00:09:46] Speaker 01:
If it's the first letter of the word, the middle letter, or the last letter.

[00:09:53] Speaker 01:
But instead of using 32 specific last letters, Sheikha Latifah uses one.

[00:10:05] Speaker 01:
one little symbol in embossed or raised letter shape.

[00:10:13] Speaker 01:
When the blind person is feeling along a page,

[00:10:18] Speaker 01:
She's going to have only one letter to indicate the last word.

[00:10:25] Speaker 03:
So in your brief, there's a lot of focus on the thickness of the letters, as well as the fact that there's the use of 10 characters versus 12.

[00:10:34] Speaker 03:
But that's not really what you're focusing on now.

[00:10:37] Speaker 03:
You're focusing on this tail.

[00:10:40] Speaker 01:
Yes, the tail angle.

[00:10:41] Speaker 01:
It's a little angle.

[00:10:43] Speaker 01:
And it's something that's never been done before.

[00:10:48] Speaker 01:
And it makes it, it means that this blind illiterate child doesn't have to memorize 28 letter shapes.

[00:11:02] Speaker 01:
All she needs to do is look for this little angle inclined to the left.

[00:11:09] Speaker 02:
But the record says that the Arabic alphabet has 28 basic shapes, which then vary.

[00:11:17] Speaker 02:
So that's not part of the discovery.

[00:11:21] Speaker 02:
Is that right?

[00:11:22] Speaker 01:
No, but in learning the language, you don't have to remember that there are 28 different shapes of these letters, or three separate shapes for these letters, because you know there's only one shape that is used to indicate the end of a word.

[00:11:48] Speaker 01:
And as the total, and I don't have it because I don't have each letter that Chica Latifah uses, it just isn't once.

[00:12:07] Speaker 01:
Any time they run their hand across the page, if they see this

[00:12:16] Speaker 01:
embossed shape, angle to the left, they know it's the end of the word.

[00:12:25] Speaker 01:
They can forget the other forms of that letter.

[00:12:30] Speaker 01:
They only use 32 forms according to her teachings.

[00:12:39] Speaker 01:
And that's much more simple.

[00:12:42] Speaker 01:
And in the prosecution of the case,

[00:12:45] Speaker 01:
there is a declaration by a PhD in education to the fact that that is actually easier to remember.

[00:12:58] Speaker 01:
It's also, I think, axiomatic.

[00:13:04] Speaker 01:
So we have these two shapes, or the one shape, and according to the one

[00:13:14] Speaker 01:
decision to Stefano, you can't just say it relates to a single ship, or therefore it's abstract.

[00:13:29] Speaker 01:
It's not abstract.

[00:13:31] Speaker 01:
There's one precise shape.

[00:13:36] Speaker 01:
And anyone who reads the claim knows that at the end of each letter,

[00:13:41] Speaker 01:
You have this precise shape and only that.

[00:13:47] Speaker 01:
So it simplifies education.

[00:13:51] Speaker 01:
It makes it easier for a child who is illiterate and to feel it even though they can't see it.

[00:14:05] Speaker 01:
This has never been done.

[00:14:07] Speaker 01:
And it's certainly a meaningful contribution.

[00:14:18] Speaker 01:
To be more specific, the embossed tail angle applies knowledge for practical purposes.

[00:14:28] Speaker 01:
In Enfant, they said it was computer software that tells you what to do.

[00:14:39] Speaker 01:
In our case, we have a teaching aid that somebody can actually feel the shape of this letter.

[00:14:47] Speaker 01:
Not the shape of some other letter or some other language, but they can actually feel what this letter looks like.

[00:14:58] Speaker 01:
I guess that's not really correct to say what it looks like, but what a normal person

[00:15:06] Speaker 01:
that it's something that they can see, they can feel.

[00:15:10] Speaker 01:
This is something that wasn't done.

[00:15:18] Speaker 01:
I don't understand why Arabic has to be so complex, why you need three different cases instead of two.

[00:15:29] Speaker 01:
But that's the way it is, and that's the way it is always taught.

[00:15:35] Speaker 01:
We have it where it's taught in a new way, and that new way makes it much easier for anyone to learn Arabic.

[00:15:49] Speaker 01:
It's equally applicable to adults and to literate people.

[00:16:03] Speaker 01:
The simple step

[00:16:06] Speaker 01:
of eliminating 50 shapes to memorize.

[00:16:12] Speaker 01:
Because with the method of Claim 2, you only have to know 32 shapes.

[00:16:23] Speaker 02:
Were there any rejections other than under Section 101?

[00:16:27] Speaker 01:
Yes, also under Section 103.

[00:16:32] Speaker 01:
And I believe that it's almost self-evident

[00:16:36] Speaker 01:
under 103 because if it's very helpful and nobody's done it for centuries, it was obvious somebody would have done it.

[00:16:51] Speaker 01:
And it's not abstract because you can read the claim and it tells you exactly what it is.

[00:17:03] Speaker 01:
I refer to it as a flag.

[00:17:06] Speaker 01:
Every time you see the little flag, that's the end of the world.

[00:17:13] Speaker 01:
I don't see that as being abstract.

[00:17:18] Speaker 02:
OK.

[00:17:18] Speaker 02:
Let's hear from the office.

[00:17:20] Speaker 02:
Thank you.

[00:17:21] Speaker 02:
Thank you.

[00:17:22] Speaker 02:
Thank you, Mr. Doherty.

[00:17:33] Speaker 02:
Mr. Hagerman.

[00:17:34] Speaker 00:
Good morning.

[00:17:34] Speaker 00:
May it please the court.

[00:17:37] Speaker 00:
The Supreme Court has said that abstract ideas are not patent-eligible because they would improperly tie up the building blocks of human ingenuity.

[00:17:47] Speaker 00:
Sheikha Al-Sabah is seeking a patent on a method and aid of teaching Arabic to the blind.

[00:17:53] Speaker 00:
That is the type of idea that the Supreme Court has said should remain in the public domain so that others can build on it.

[00:18:00] Speaker 00:
The board correctly applied the ALICE two-step test when it found the claimed inventions ineligible here.

[00:18:06] Speaker 00:
And I would just point out that the board specifically recognized that these inventions may have utility.

[00:18:13] Speaker 00:
But it said that this is just not something that the Supreme Court envisioned should be eligible for a patent grant.

[00:18:21] Speaker 03:
Just so we can make clear what we want to focus on here, as it relates to 103, there was no finding with respect to this tail piece, right?

[00:18:36] Speaker 00:
I believe there was a finding, and the finding was that even if the tailpiece is useful or even if it's something that had never been done in the Arabic language, it is still a piece of punctuation, just like a curve that denotes the beginning of a word in Arabic or a dot that provides vocalization direction to the reader.

[00:19:03] Speaker 00:
Essentially that it had very little patentable weight, because it's a creature of the language.

[00:19:09] Speaker 03:
So in other words, they didn't view it as a limitation in the claim?

[00:19:12] Speaker 03:
I guess I'm just trying to decide whether there really is a 103, a complete 103 analysis here.

[00:19:24] Speaker 00:
There is.

[00:19:24] Speaker 00:
And the board viewed the claim as a whole, and it viewed every limitation.

[00:19:29] Speaker 00:
It just gave very little weight to the significance

[00:19:32] Speaker 00:
of that tail angle.

[00:19:34] Speaker 00:
I think why did the board do that?

[00:19:36] Speaker 00:
It looked at the specification.

[00:19:37] Speaker 00:
It didn't see much that was described in the specification about that tail angle.

[00:19:43] Speaker 00:
The board also had the fact that there were other items of punctuation that were claimed and described in the specification that were very sort of routine and had been done in the Arabic language for a long time.

[00:19:55] Speaker 00:
And this court's case law, although it does require the board to do an analysis if it's going to

[00:20:02] Speaker 00:
discount a limitation is simply being printed matter.

[00:20:05] Speaker 00:
The board is allowed to do that.

[00:20:09] Speaker 03:
Getting back to the patentable subject matter, is it your position that teaching tools would never be patentable?

[00:20:20] Speaker 00:
It's not the office's position that they're categorically ineligible.

[00:20:24] Speaker 00:
The board evaluated the precise claims that were at issue here, just like it does with any other invention that comes before it.

[00:20:32] Speaker 00:
I do think that in this case copyright would have been a more appropriate method or species of protection for this sort of concept.

[00:20:45] Speaker 00:
But no, it is not the office's position that teaching aids are categorically ineligible.

[00:20:51] Speaker 03:
I have a hard time

[00:20:55] Speaker 03:
with the fact that you sort of lump the two claims together.

[00:20:59] Speaker 03:
I mean, clearly we do have a physical construct with respect to the teaching materials as opposed to just the method, right?

[00:21:10] Speaker 00:
There is.

[00:21:12] Speaker 00:
So in claim 11, it is printed on a substrate.

[00:21:15] Speaker 00:
So it could be printed on any surface.

[00:21:18] Speaker 00:
But for purposes of Section 101 analysis, the Supreme Court has been clear that

[00:21:24] Speaker 00:
simply confining a concept to a particular surface or a particular technological environment isn't enough to transform something that's already that is clearly abstract in its own right into something more when it's simply placed on a piece of paper or on a computer-readable medium or something like that.

[00:21:51] Speaker 00:
So unless the court has any further questions, I'm happy to yield the balance of my time.

[00:21:55] Speaker 02:
Well, as long as you're here, I do have a question.

[00:21:59] Speaker 02:
It does seem, and it's hard to find a better example than this, where when you have an elaborate claim which goes into a number of technical details, we find that rather than searching for a reference as to all of those details,

[00:22:21] Speaker 02:
we come up with an objection that the concept is abstract.

[00:22:26] Speaker 02:
And there is something disturbing about that observation.

[00:22:33] Speaker 02:
There are a lot of other observations one might make if, in fact, there is of the very many points which are included in the claim.

[00:22:44] Speaker 02:
There is an arguable inventive concept in one of them.

[00:22:51] Speaker 02:
because we know that Section 103 refers to the invention as a whole and not to any particular inventive concept.

[00:23:00] Speaker 02:
And this is what's troubling to me about this case and about this claim, because when we get to the point, the inventive concept, there's silence on the part of the examiner.

[00:23:20] Speaker 02:
How does one resolve this discrepancy?

[00:23:25] Speaker 02:
One solution is to do a lot more work.

[00:23:27] Speaker 02:
Is that on the part of the examination court?

[00:23:31] Speaker 02:
Is that the only solution?

[00:23:34] Speaker 00:
I would disagree with the court that the examiner was silent about the inventive concept.

[00:23:41] Speaker 00:
I believe the examiner did, and the board adopted specific findings that

[00:23:49] Speaker 00:
after step one that there was nothing in the specification or otherwise that they could find that imparted anything beyond the abstract idea of teaching Arabic to the blind.

[00:24:05] Speaker 02:
But let's say this case doesn't somehow fit the definition of step one, so you don't get beyond step one.

[00:24:15] Speaker 02:
So then what?

[00:24:17] Speaker 02:
Here there was a rejection under 103.

[00:24:20] Speaker 02:
But it was incomplete.

[00:24:29] Speaker 00:
Well, I think that I would agree that the office is obligated to do a full analysis, whether it's 101 or 103.

[00:24:39] Speaker 00:
And I think that happened here.

[00:24:42] Speaker 00:
The inquiries are different.

[00:24:50] Speaker 00:
I believe all the art here does support what the board found.

[00:24:55] Speaker 02:
Well, it's something to think about.

[00:25:02] Speaker 02:
It is cropping up more and more, it seems to me.

[00:25:05] Speaker 02:
And we should put our minds to resolution.

[00:25:11] Speaker 00:
Understood, Your Honor.

[00:25:16] Speaker 02:
Any more questions?

[00:25:18] Speaker 02:
OK.

[00:25:18] Speaker 02:
Thank you.

[00:25:19] Speaker 02:
The case is taken under submission.

[00:25:21] Speaker 02:
Thank you both.

[00:25:23] Speaker 01:
All rise.