[00:00:28] Speaker 03: Let's just wait a moment until the courtroom clears. [00:01:02] Speaker 03: It appears that we have a changing of the audience as well as a changing of counsel. [00:01:11] Speaker 03: The next case is Inray Levenstein, 2017, 1067. [00:01:14] Speaker 03: Mr. Nagy, is it? [00:01:17] Speaker 03: Nagy. [00:01:19] Speaker 02: Thank you, Your Honor. [00:01:24] Speaker 02: May it please the Court? [00:01:27] Speaker 02: I just have one [00:01:30] Speaker 02: main issue I'd like to address today and there'll probably be a few side issues. [00:01:37] Speaker 02: Let me apologize in advance for the scratchy voice. [00:01:40] Speaker 02: I hope it's not too annoying. [00:01:43] Speaker 02: In this case, the examiner had a job to do and he failed to do it. [00:01:48] Speaker 02: I have a great respect for the PTO examiners, but they do make mistakes occasionally and he did in this case. [00:01:55] Speaker 02: In step two of ALICE, the examiner was required to consider the elements of each claim, both individually and as an ordered combination, to determine whether the additional elements transform the nature of the claim into a patent-eligible application. [00:02:14] Speaker 02: The examiner didn't do that. [00:02:15] Speaker 03: Well, Counsel, it all looks abstract here. [00:02:16] Speaker 03: Conducting a study, establishing a value, paying a monetary value, [00:02:23] Speaker 02: Yes, Your Honor. [00:02:24] Speaker 02: If you look at the claims, though, you're stopping at the very first part of each element of the claim. [00:02:32] Speaker 02: Everything in the claim, each element of the claim, is tied to a technical problem and a technical solution. [00:02:41] Speaker 02: So if you look at the claim, it says conducting a study, and then it goes on to say implementing sealable, refillable fluid product packaging. [00:02:50] Speaker 02: The next claim element, establishing a value [00:02:54] Speaker 02: and again ties it to the problem and the solution, providing refill stations, which is the technical problem and the technical solution, and then paying a savings, which is also tied to the refill stations, the profitability of it. [00:03:11] Speaker 02: But that's the abstract portion of it. [00:03:13] Speaker 00: I'm having a difficult time understanding your argument that Alice and its progeny don't even apply here. [00:03:20] Speaker 00: I mean, you say they don't apply because you don't recite any computer technology or computer functionality, but Alice said that merely reciting computer technology and functionality is not enough. [00:03:33] Speaker 00: It didn't say that if you don't recite it that somehow [00:03:36] Speaker 00: that elevates the claim to patent eligibility. [00:03:41] Speaker 02: Yes. [00:03:41] Speaker 02: I agree, Your Honor, and I'm not limiting the claim, excuse me, the analysis. [00:03:47] Speaker 02: I'm not limiting it to just a computer or mathematical algorithm. [00:03:54] Speaker 02: What I'm saying is that this whole line of cases, Alice, Mayo, Belsky, and the ones cited by the Patent Office, [00:04:05] Speaker 02: they all have a common theme which doesn't apply in our case. [00:04:10] Speaker 02: That is you have a series of method steps that are being performed by the computer or by a mathematical algorithm and that simply doesn't apply in this case. [00:04:22] Speaker 02: We're more like deer where you have a touchy-feely thing and we're more like the Thales Vision X case where you have sensors. [00:04:32] Speaker 02: So at the end of the day, [00:04:33] Speaker 02: We have method claims that do recite method steps that get you to a technical problem and a technical solution, just like deer, where you had thermocouples, you had molds. [00:04:49] Speaker 02: You could put your hands on things. [00:04:52] Speaker 02: Fails had accelerometers. [00:04:54] Speaker 02: to measure, there was a computer involved to manipulate the data, but at the end of the day, you have a machine, you have a technical solution to a very specific technical problem. [00:05:07] Speaker 02: But getting back to what the examiner failed to do, I'm going to read from the office action, the very first office action, and it's very short, but this is a quote from the first office action. [00:05:22] Speaker 02: It was found that the claims do not include significantly more than the abstract idea, because at least claim one does do not show an improvement to another technology to provide a technical solution, but provides the use of available technology to apply the abstract idea. [00:05:43] Speaker 02: And that was at page 50 of the first office action. [00:05:48] Speaker 02: and it's at pages 73 and 74 of the second office action. [00:05:53] Speaker 02: It goes on to say, the abstract idea is also not applied with or by use of a particular machine, but creates a contract, which is an agreement between two parties, so as to buy and or sell a commodity, which in this case is savings. [00:06:10] Speaker 02: That doesn't satisfy step two of ALICE, your honor. [00:06:14] Speaker 02: The problem is this. [00:06:16] Speaker 02: It's a matter of fairness. [00:06:18] Speaker 02: The Supreme Court has not defined what an abstract idea is. [00:06:23] Speaker 02: They just haven't done it. [00:06:24] Speaker 02: This court hasn't defined it as well. [00:06:27] Speaker 02: So given that the abstract idea hasn't been defined, the second part of the test is fairly rigid. [00:06:34] Speaker 02: And the examiners in the patent office have to apply that test. [00:06:38] Speaker 00: But doesn't your own patent say that the [00:06:41] Speaker 00: The problem that it was seeking to resolve is actually a financial problem. [00:06:44] Speaker 00: How to fund the solid waste reduction programs in order to get the systems in place whereupon the savings can begin to be realized going forward as a revenue stream? [00:06:55] Speaker 02: I don't think so, Your Honor, because there's going to be a lot of... Well, I'm quoting from the patent, right? [00:06:59] Speaker 02: Yes, Your Honor, you are. [00:07:01] Speaker 02: But the problem you're trying to solve is to reduce solid waste packaging. [00:07:08] Speaker 02: It's an environmental issue. [00:07:09] Speaker 02: That's what you're trying to solve here, is how are you going to do that? [00:07:13] Speaker 02: And you're going to have to do it by building these refill stations in combination with sealable refillable containers. [00:07:23] Speaker 02: And you have to fund it some way. [00:07:25] Speaker 01: But your patent doesn't assert that the refill stations or the refillable bags are something that you've invented. [00:07:34] Speaker 01: Your patent asserts that in order to get the municipalities to proliferate them, let's give basically consumers some financial skin in the game. [00:07:48] Speaker 01: like a mutual insurance company or something. [00:07:53] Speaker 01: So the locus of what your patent says is your advance is a financial arrangement to do something that you don't even assert to be a new thing to do. [00:08:06] Speaker 02: Your Honor, it is a new thing because that's why step two of ALIS is so important. [00:08:12] Speaker 02: It's the ordered combination of the claim that you have to look at here. [00:08:17] Speaker 02: You have to have the financing. [00:08:19] Speaker 02: You have to have the skin in the game, as you say, from the investors. [00:08:24] Speaker 02: But at the end of the day, you have to have something that you can put your hands on. [00:08:28] Speaker 02: That is a machine, like the other cases that I mentioned earlier. [00:08:34] Speaker 00: But none of the things you put your hands on are novel. [00:08:38] Speaker 00: Right? [00:08:38] Speaker 00: You don't claim that they don't already exist. [00:08:41] Speaker 02: The ordered combination of them is novel, Your Honor. [00:08:44] Speaker 02: And you're right. [00:08:46] Speaker 02: I'm not saying that they don't already exist. [00:08:48] Speaker 02: The refill stations already exist. [00:08:49] Speaker 02: There are refill stations out there. [00:08:51] Speaker 02: I'm sure there are probably some sealable containers out there that are refillable. [00:08:57] Speaker 02: But when you combine them with the other method steps of the claim, that's what makes it patentable. [00:09:03] Speaker 02: Let me tie a bow around this. [00:09:06] Speaker 02: Step two of ALICE. [00:09:08] Speaker 02: We filed two amendments in the patent office, and we raised this issue with respect to part two of ALIS that the examiner didn't do his job. [00:09:18] Speaker 02: We filed two briefs to the board. [00:09:21] Speaker 02: We filed two briefs here. [00:09:23] Speaker 02: I'm standing in front of you making the argument for the seventh time. [00:09:26] Speaker 02: And I would ask my friend, when he gets up here in about five minutes, to just point where in the record the examiner said something along these lines. [00:09:35] Speaker 02: I looked at claim element number one. [00:09:38] Speaker 02: And it doesn't satisfy step two of ALICE because I looked at claim element number two. [00:09:45] Speaker 02: I looked at claim element number three. [00:09:47] Speaker 02: And then, after I did all of that, I looked at the ordered combination of these claim elements. [00:09:54] Speaker 02: And I either find it path-melodical or I don't, or it doesn't at least rise to something significantly more. [00:10:01] Speaker 02: And I wasn't going to bring this up until a little later, but now that I've mentioned the word significantly more, [00:10:08] Speaker 02: Just how much is that? [00:10:09] Speaker 02: Is that a lot more? [00:10:11] Speaker 02: Is that a bunch more? [00:10:13] Speaker 02: I think that's one of those terms that I would ask this court if they find it in your heart to write a presidential opinion. [00:10:22] Speaker 03: I think it has nothing to do with AHA. [00:10:26] Speaker 02: Yes, AHA. [00:10:26] Speaker 02: Understood, Your Honor. [00:10:27] Speaker 00: What activity would you say would infringe this claim? [00:10:34] Speaker 02: It's going to be narrow, Your Honor. [00:10:35] Speaker 02: There's no preemption issue. [00:10:36] Speaker 02: Let me do it the other way around. [00:10:39] Speaker 00: Well, just describe for me what activity would infringe this claim. [00:10:43] Speaker 02: An activity would infringe if someone undertook an analysis for a municipality to determine how much it would cost to build a refill station, make that evaluation, then [00:11:02] Speaker 02: set up the SPRs, sell them to investors, build the refill stations, and run the refill stations, and then determine whether there's a profit or not. [00:11:15] Speaker 02: So you would have to go through all those steps. [00:11:17] Speaker 02: Let me take one more step. [00:11:19] Speaker 02: What if Walmart or Costco wanted to do this same thing? [00:11:24] Speaker 02: They're not preempted. [00:11:26] Speaker 02: They've got more money than anybody on earth, except for the folks that were here just before us. [00:11:33] Speaker 02: And they would just build their own refill stations and run them. [00:11:40] Speaker 02: They're not going to infringe the claim unless they go through these exact same steps. [00:11:45] Speaker 02: So it's a pretty narrow way to look at the claims. [00:11:47] Speaker 01: Just because they're not a municipality? [00:11:49] Speaker 01: Pardon me? [00:11:49] Speaker 01: Just because they're not a municipal [00:11:51] Speaker 02: Well, yeah, it's part of the claim. [00:11:54] Speaker 02: It says a similar cost savings for a municipality. [00:11:57] Speaker 02: I mean, it's right in the claim. [00:11:58] Speaker 02: I don't think I would like to be standing up here in about six years from now with some loud claims and try to argue that Costco, if they built their own, just because they're not a municipality, I wouldn't want to argue that they do infringe. [00:12:13] Speaker 02: So I think the claims are fairly narrow the way they're drafted and they're targeted to [00:12:18] Speaker 02: a particular technological problem and a technical solution. [00:12:25] Speaker 01: Can I ask you, you pointed out I think at one point that the examiner here cited a non-precedential decision of our court and somewhat later I think it was in November of 2016 somebody at the PTO wrote a memorandum to [00:12:47] Speaker 01: to examiners or something, saying, well, suddenly we have quite a lot of presidential decisions from the Federal Circuit, so we don't really need to be citing, and you shouldn't be citing, non-precedential decisions anymore unless they're squarely on point, something spot on. [00:13:06] Speaker 02: That was a PTO memorandum. [00:13:08] Speaker 01: What's the status of that? [00:13:10] Speaker 01: Is that kind of thing enforceable against the PTO if the examiner, even [00:13:17] Speaker 01: after it comes out, let alone before, violates this, I don't know what to call it, instruction, directive. [00:13:25] Speaker 01: Guideline. [00:13:26] Speaker 01: Guideline. [00:13:28] Speaker 01: It's the PTO memorandum. [00:13:29] Speaker 01: That's kind of on the soft end of enforceable, isn't it? [00:13:32] Speaker 01: Guideline. [00:13:33] Speaker 02: Well, it is, unless you're out there in the trenches like myself and all the other little folks that are out there, that are, you know, we have to live by these, and so do the examiners. [00:13:42] Speaker 02: That's why we're standing in front of you today. [00:13:44] Speaker 02: There was the PTO memorandum that was dated November 2, 2016. [00:13:51] Speaker 02: It was the sixth one since all of section 101 started happening with respect to Alice and the rest of the cases. [00:14:00] Speaker 02: And yes, I think, you know, the PTO is giving, and they do a good job, I admit it, they do a good job. [00:14:09] Speaker 02: They're giving their examining course some guidelines. [00:14:12] Speaker 02: And they're telling us what the guidelines are as well. [00:14:14] Speaker 02: We have to live by them. [00:14:16] Speaker 02: And in those guidelines, I'm going to just quote, because you brought it up. [00:14:20] Speaker 02: It's at page three of that memorandum. [00:14:22] Speaker 02: Quote, this is what the examiners are to consider factors weighing in favor of patentable subject matter. [00:14:31] Speaker 02: Quote, consider the additional elements in combination, as well as individually, when determining whether a claim as a whole amounts to significantly more [00:14:41] Speaker 02: as this may be found in the non-conventional and non-generic arrangement of known conventional elements. [00:14:49] Speaker 02: I admit we have known conventional elements, but when we combine them and we have them combined along with the method that we've set forth in the claim, that I believe is patentable. [00:15:03] Speaker 03: Council, why don't we save your rebuttal time and hear from the Patent Office. [00:15:08] Speaker 03: Mr. McManus. [00:15:17] Speaker 04: May it please the court? [00:15:19] Speaker 04: There was a lot of talk about step two in the ALICE analysis, but let's start with step one. [00:15:24] Speaker 04: Step one says, do we even have one of the three exceptions to one-on-one eligibility? [00:15:29] Speaker 04: And we clearly have that here. [00:15:31] Speaker 04: This claim one, which is on the inside of our cover, is clearly a method for creating a contract. [00:15:38] Speaker 01: Do you think the word clearly helps us think about this not so clear area of the law? [00:15:45] Speaker 04: Tell me why it's clear. [00:15:47] Speaker 04: Because when one reads the steps, it's difficult to see anything but contract formation. [00:15:54] Speaker 01: So you're asserting the proposition that when the subject is [00:16:00] Speaker 01: defining the terms of contract we're in abstract ideal land. [00:16:04] Speaker 04: I think the law is fairly clear. [00:16:07] Speaker 04: I'll use it again. [00:16:08] Speaker 04: I'll double down. [00:16:10] Speaker 04: If there's one thing that the law shows us, cases like BuySafe, Alice, it's that when we're in the realm of contract formation, [00:16:20] Speaker 04: We are in the realm of something that people do every day all around the world. [00:16:25] Speaker 04: Now, you might have different dressings of the contract. [00:16:27] Speaker 04: It might have different kinds of contracts. [00:16:29] Speaker 04: It might have different steps in the contract formation. [00:16:33] Speaker 04: But that, generally, contract formation has these steps in claim one, conducting a study, establishing a value, offering for sale, and then providing a sale, a saving participation rate, which is basically the process. [00:16:45] Speaker 03: You're saying they're ideas rather than physical steps. [00:16:48] Speaker 04: Well, they are ideas embodied in steps, steps that are basic to contract formation. [00:16:57] Speaker 04: So it's not that something that is a contract formation can never be one-on-one eligible. [00:17:05] Speaker 04: we start with the premise that in order to figure out whether we even need a 101 analysis, do we have one of the three exceptions? [00:17:11] Speaker 04: And it's clear that contractual formation is one of the exceptions. [00:17:14] Speaker 04: It is a type of abstract idea. [00:17:17] Speaker 01: Does it matter if the contract is of an unfamiliar sort? [00:17:24] Speaker 01: Because in ALICE and in BuySafe and a number of other [00:17:28] Speaker 01: contract formation Bilski cases, there was some emphasis or at least mention of the age-old nature of the arrangement, at least at some level of generality, or is the principle somewhat more categorical than that, defining the terms of contractual relations? [00:17:53] Speaker 01: is on the abstract idea side, and maybe you could save it at step two by introducing something other than defining the terms of the contract. [00:18:02] Speaker 01: But does it have to be an old and familiar kind of contract? [00:18:07] Speaker 04: No, in that I think what's old and familiar is the idea of forming a contract. [00:18:12] Speaker 04: There are any myriad, that's a loaded term, [00:18:15] Speaker 04: There are any number of reasons why you might form the contract. [00:18:18] Speaker 03: This isn't a myriad case. [00:18:19] Speaker 04: I was about to say, we're out of the MGen world and we're into the business world. [00:18:23] Speaker 04: But there are any number of reasons why you might want to form the contract. [00:18:28] Speaker 04: The particular reason why you're seeking to form the contract is not unto itself something that's going to, in the context of step two, raise you into something significantly more than the abstract idea. [00:18:39] Speaker 00: What about the fact that the Supreme Court talked about an abstract idea being something you could do in your head or something that someone could do in a piece of paper? [00:18:48] Speaker 00: Obviously this can't be done that way because it requires all these concrete pieces. [00:18:55] Speaker 04: Well the abstract idea concept or class isn't limited to just things that you can do in your head and we know that because we have plenty of abstract idea cases that are done by computers. [00:19:08] Speaker 00: Well, I mean, that's what the Supreme Court said. [00:19:10] Speaker 00: Just because you put it on a computer, if it was something you could have done in your head, that a computer doesn't save you. [00:19:17] Speaker 04: Well, so for example, we have ultramursel as a computer case. [00:19:26] Speaker 04: I don't know that it turns on whether or not you can do it in your head or not. [00:19:30] Speaker 04: I think the idea is that under 101 exceptions, particularly as the abstract idea concept goes, [00:19:38] Speaker 04: It's that it's something that's so fundamental that it is, even though it is a method or a process, something that is so basic that we want to incorporate the preemption concern. [00:19:50] Speaker 04: We want to make sure that you're not tying that up for future innovation, which is why we then proceed to step two and say, are you claiming something significantly more than just the abstract idea? [00:20:01] Speaker 04: No, my friend on his affirmative case said the examiner didn't perform a proper step two analysis. [00:20:07] Speaker 04: We respectfully disagree. [00:20:09] Speaker 04: We addressed this in our brief at pages appendix 107 to 109, which is the examiner's answer in particular. [00:20:17] Speaker 04: The examiner goes through the steps of saying, I've identified the contractual nature of your abstract idea in claim one. [00:20:26] Speaker 04: Let's take a look and see, is the ordered combination or any of the individual limitations in there something that amounts to something significantly more? [00:20:34] Speaker 04: And the examiner explained that it's not. [00:20:37] Speaker 04: particularly at page 107, the examiner found that the claims do not include significantly more than the abstract idea, because at least the claim one does not show an improvement to another technology to provide a technological solution, but provides the use of available technology to apply the abstract idea, and goes on to, again, reiterate the abstract idea, which are the claim one elements. [00:21:00] Speaker 04: I mean, again, we have to understand this discussion in the context of claim one. [00:21:04] Speaker 04: When one reads claim one, there's on the front of our cover, at the inside of our cover, we've broken the claim elements out into their constituent parts. [00:21:12] Speaker 04: There's four parts. [00:21:14] Speaker 04: The first one is conducting the study. [00:21:16] Speaker 04: The second one is establishing the value for the right and offering it for sale. [00:21:19] Speaker 04: That's part of the contract. [00:21:22] Speaker 04: The fact that you detail that particular step is still the contract. [00:21:26] Speaker 04: The third element is providing the refill stations. [00:21:29] Speaker 04: And then the fourth element is paying out the money. [00:21:32] Speaker 04: So one, two, and four are part of the contract. [00:21:34] Speaker 04: In his step two analysis, the examiner said, I have the steps of a contract, and then I have you using, quote, available technology to apply the abstract idea. [00:21:43] Speaker 04: That's the refill station. [00:21:45] Speaker 04: The examiner reiterated the fact that the particular nature of the contractual formation here, the so-called savings participation rights, was not enough to elevate this claim. [00:21:54] Speaker 04: And that's at page 108, appendix page 108. [00:21:57] Speaker 04: It says, the savings participation rights are sold pursuant to the agreement. [00:22:02] Speaker 04: Quote, the act of funding implies human activities that are related to the payment of money for a particular purpose. [00:22:08] Speaker 04: Thus, this is not something significantly more. [00:22:11] Speaker 04: That's a proper analysis. [00:22:12] Speaker 04: The examiner doesn't have to say, here's claim element one, two, three, four, five. [00:22:18] Speaker 04: Individually, it's not enough. [00:22:20] Speaker 04: Collectively, it's not enough. [00:22:21] Speaker 04: The examiner clearly considered the, quote, extra limitations of this claim, found that most of them were simply the steps in the contractual formation, and said, everything else isn't anything more. [00:22:32] Speaker 04: I mean, if you look at the cases like DDR Holding, Enfish, the cases where this court found something to be patent eligible, you had a technological solution to a technical problem. [00:22:43] Speaker 04: You had something that clearly wasn't even an abstract idea, because the particular thing that was described in that claim wasn't just steps for a particular computer-driven invention. [00:22:57] Speaker 04: They were unique steps that nobody was doing. [00:23:00] Speaker 04: So we don't have any of that here, which is why this court and the Supreme Court have made clear the way to figure out whether we have a 101 problem or not is to look at the precedent. [00:23:09] Speaker 04: Which brings us to an issue that came up about the citation of non-precedential decisions. [00:23:14] Speaker 04: So that particular memorandum is guidance to the examiners on how to formulate their objections under 101. [00:23:20] Speaker 01: Is that meant to be enforceable in a challenge? [00:23:23] Speaker 01: Suppose the examiner had [00:23:25] Speaker 01: This particular memorandum came after the examiner, right? [00:23:30] Speaker 01: So suppose it had come before and the examiner had gone and cited the unsightable decision anyway and the board had said, we affirm on the basis of the examiner's decision, is violation of the guideline supposed to be a ground for vacate or a reversal? [00:23:49] Speaker 04: No, the guidelines are incorporated into the MPEP, but like the MPEP, they make clear that they don't create an enforceable right, such that if the examiner fails to do something that's in there or seemingly goes against it, it's not an enforceable right. [00:24:06] Speaker 04: You certainly can make the argument that the examiner's failure to comply with, for example, these guidelines is something that the board should take under its advisement in determining whether or not the examiner has erred. [00:24:17] Speaker 04: In this particular instance, this particular guideline says, examiners, you should try to avoid citing to non-presidential decisions, unless your factual situation here and in that decision are analogous. [00:24:31] Speaker 04: I mean, there's no allegation. [00:24:33] Speaker 04: Well, I guess there is an allegation that the particular case, which I think was the smart gene case, was not factually analogous. [00:24:41] Speaker 04: But in the defense of the examiner, even though he doesn't create an enforceable right, [00:24:45] Speaker 04: The examiners cited the SmartGene among several others. [00:24:48] Speaker 04: And the reason SmartGene was analogous here was because in SmartGene, the particular patentee there was simply doing what doctors always do. [00:24:56] Speaker 04: In that case, it was a claim to how physicians diagnose and treat. [00:25:00] Speaker 04: It was treated under the abstract idea exception and admittedly in a different sphere. [00:25:07] Speaker 04: But the idea was the same. [00:25:09] Speaker 04: You're simply claiming here what people do when they do their job. [00:25:13] Speaker 04: And in the examiner's defense, the memorandum didn't exist when he cited to it in his answer. [00:25:19] Speaker 04: In the reply brief, there was a specific allegation that the solicitor's office citation of the decision was somehow improper to this court. [00:25:27] Speaker 04: And I simply wish to point out that this court often cites its own non-presentational decisions to support its decisions. [00:25:34] Speaker 04: And I feel as an officer of the court, we should. [00:25:36] Speaker 03: I hope not often. [00:25:39] Speaker 04: Well, particularly in this area, as it has grown, [00:25:42] Speaker 04: I mean, SmartGene has actually been cited twice, if I checked. [00:25:46] Speaker 04: But I think I simply wanted to point out that because there was a factual analogousness to that case, in this case it was worth citing. [00:25:54] Speaker 04: And the particular reason we cited it was actually to point out that courts, when they make the comparative analysis under ALICE step two, it's not limited to computers versus non-computers. [00:26:04] Speaker 04: Cases with computers cite to cases without computers and vice versa, which is the only reason we actually cited to SmartGene. [00:26:11] Speaker 04: if there are no further questions. [00:26:14] Speaker 03: Thank you, Mr. Panis. [00:26:16] Speaker 03: Mr. Nagy will give you your full two minutes of rebuttal. [00:26:24] Speaker 02: Thank you, Your Honor. [00:26:25] Speaker 02: A two-minute drill. [00:26:29] Speaker 02: This case really is about fairness. [00:26:34] Speaker 02: I think my friend here showed you that if you go look at page 107 and 109 of the appendix, [00:26:40] Speaker 02: The examiner still didn't do his job. [00:26:44] Speaker 02: The first step of Alice and Mayo, determining an abstract idea, it's not defined. [00:26:51] Speaker 02: It's arbitrary. [00:26:53] Speaker 02: And I agree. [00:26:54] Speaker 02: Use former precedents that the court has to compare the claims to the other cases. [00:27:00] Speaker 02: That's a good approach. [00:27:02] Speaker 02: But it's not foolproof. [00:27:03] Speaker 02: That's why there's a lot of folks like me standing up in front of you. [00:27:07] Speaker 02: And they're going to keep coming. [00:27:09] Speaker 02: What I'm asking the court to do today is to prepare a presidential opinion. [00:27:17] Speaker 02: And in that opinion, hold the examiners to the job of going through the claim element by element, seeing why each element doesn't apply or does apply, and then to go through and make sure there's an ordered combination review as well. [00:27:39] Speaker 02: Otherwise, how am I going to make objections? [00:27:42] Speaker 02: How am I going to write amendments to the claims? [00:27:44] Speaker 02: I can't do it. [00:27:46] Speaker 02: So with an opinion that this court writes, the examiners can follow the procedures set out in ALICE and mail. [00:27:56] Speaker 02: The first step of ALICE is so arbitrary. [00:28:00] Speaker 02: The second part of it needs to be defined more. [00:28:02] Speaker 02: And you have to hold the examiner to that standard. [00:28:06] Speaker 02: And as I had mentioned earlier, while you're writing that opinion, please look at significantly more, because that's still kind of a tough issue. [00:28:17] Speaker 02: It's going to be a long opinion. [00:28:22] Speaker 02: Thank you. [00:28:22] Speaker 03: Thank you, counsel. [00:28:23] Speaker 03: We'll take the case on revisement.