[00:00:00] Speaker 05:
Nice clear arguments by both sides.

[00:00:02] Speaker 04:
Thank you.

[00:00:57] Speaker 05:
Richard Weinblatt.

[00:00:59] Speaker 05:
Go ahead.

[00:01:22] Speaker 02:
Good morning, Your Honors.

[00:01:23] Speaker 02:
Rich Weinblatt of Samuelson-Weinblatt on behalf of Inventor Holdings.

[00:01:26] Speaker 02:
May it please the Court?

[00:01:28] Speaker 02:
The district court had on two previous occasions denied 101 motions on the same patented issue here after considering Mayo and Bilski.

[00:01:37] Speaker 05:
Did you make any evaluation post-Alice as to the remaining merits of your 101 claims?

[00:01:43] Speaker 05:
And if so, what evidence do you have of that evaluation?

[00:01:49] Speaker 02:
We did look at Alice, saw that Alice reaffirmed Mayo and Bilski.

[00:01:56] Speaker 02:
looked at the arguments that were raised in the previous briefs, where the defendants heavily relied on Mayo and Bilsky.

[00:02:03] Speaker 02:
We looked at the claims, our arguments, saw that the district court denied the previous motions to dismiss.

[00:02:11] Speaker 02:
And if you look at the proposed orders that the previous defendants filed, the proposed order said, having considered defendants' motions to dismiss, the motion is granted.

[00:02:22] Speaker 02:
Now, when the district court denied the motions,

[00:02:24] Speaker 02:
He didn't take those proposed orders and just cross off granted and make it denied.

[00:02:30] Speaker 02:
The district court wrote, having considered the motions, the pleadings, and the relevant law, he then denied the motions.

[00:02:38] Speaker 02:
So that told us that our arguments had merit, that the two-part test of Mayo and also the consideration of Bielski were overcome.

[00:02:51] Speaker 02:
In other words, the patent survived 101.

[00:02:54] Speaker 02:
because the court denied those motions after considering.

[00:02:56] Speaker 01:
Do you agree that a denial of a motion to dismiss is on a different footing than a denial of, say, a motion for summary judgment?

[00:03:05] Speaker 02:
It is on a different footing when it comes time for the evidentiary record.

[00:03:09] Speaker 01:
But when it comes time for a party acting in accordance with... I mean, I guess what I'm trying to say is I don't really see the denial of a motion dismissed as an opinion by a court proclaiming that the claims are valid.

[00:03:22] Speaker 01:
and that they're patent eligible.

[00:03:24] Speaker 01:
They're just saying, in fact, I see a court is saying, well, it's not so clearly, painfully obvious that one side deserves to have this case dismissed.

[00:03:37] Speaker 01:
And so I think it should go forward at least a little bit longer.

[00:03:42] Speaker 02:
All right.

[00:03:42] Speaker 02:
So let's take that presumption and assume that's what the district were thought.

[00:03:45] Speaker 02:
Bad Bath and Beyond filed its motion under Rule 12C.

[00:03:48] Speaker 02:
which is the equivalent of Rule 12b6.

[00:03:50] Speaker 02:
Once again, the district court had absolutely no evidence in front of it.

[00:03:53] Speaker 02:
So looking at the documents themselves, meaning the pleadings, they're the same as what was filed in the previous cases.

[00:04:01] Speaker 02:
There was no evidentiary record.

[00:04:03] Speaker 02:
There was no extra reports that could be submitted because that's outside of the pleadings.

[00:04:07] Speaker 02:
There was no claim construction order.

[00:04:09] Speaker 02:
The district court did not consider any of that.

[00:04:13] Speaker 05:
If your honor is all of this an answer to my question, which is what evidence do you have of this evaluation post Alice?

[00:04:23] Speaker 05:
It is because if it is, I'm not real impressed.

[00:04:29] Speaker 02:
If you look and just like like you were at the previous oral argument, one of the arguments that was made was that the invention allowed the interoperability between a point of sale system and a backend system.

[00:04:41] Speaker 02:
And at that point in time in 1997,

[00:04:43] Speaker 02:
Those two computer systems, they could not communicate with each other.

[00:04:46] Speaker 02:
Now, the court, rule 36, the district court's opinion, meaning that the overall opinion was correct.

[00:04:52] Speaker 02:
That doesn't mean that the court agreed or disagreed with the analysis done by the district court.

[00:04:58] Speaker 02:
That interoperability argument and how there was, the argument that was made on behalf of Menner Holdings about how the code allowed the two types of machines to communicate and improve upon the prior art, later in time,

[00:05:09] Speaker 02:
was used by the Federal Circuit to find some Americans have been eligible under 101.

[00:05:15] Speaker 02:
So looking at all of the cases that have been cited and the arguments that were made, inventor Holdings believed its patents could survive a 101 challenge.

[00:05:25] Speaker 02:
The fact that it did not survive a 101 challenge does not mean that that's sanctionable conduct to proceed with a case.

[00:05:31] Speaker 00:
This isn't.

[00:05:32] Speaker 00:
You're not.

[00:05:33] Speaker 00:
There wasn't an award of attorney fees in this case for sanctionable conduct.

[00:05:37] Speaker 00:
It's just a finding

[00:05:39] Speaker 00:
that it's reviewed for an abuse of discretion, that this case stands out out of the ordinary, that it's exceptional, right?

[00:05:47] Speaker 00:
I mean, isn't that what the Supreme Court said?

[00:05:49] Speaker 00:
It's the district court is supposed to look and see whether, in its view, the case is exceptional or not, not whether the party's conduct is sanctionable.

[00:05:58] Speaker 01:
I guess another way of putting it is I don't believe either the Supreme Court or this court has ever equated a 285 attorney fee award with the term sanction, have we?

[00:06:10] Speaker 02:
It has not determined, it has not, Your Honor, no, it has not.

[00:06:15] Speaker 02:
The way that we're looking at this case is the result.

[00:06:17] Speaker 01:
So that's why, I mean, maybe this is just a little bit of wordsmithing, but there's a little bit of sensitivity maybe on this side of the bench of referring to something under a 285 award as a sanction, because sanction has connoted something a little extra and a little different.

[00:06:34] Speaker 02:
And the brief reason sanction is fee award.

[00:06:37] Speaker 02:
Right.

[00:06:37] Speaker 02:
For under 285.

[00:06:38] Speaker 01:
So could you just not use the word sanction and find a different word?

[00:06:41] Speaker 02:
Sure, Your Honor.

[00:06:42] Speaker 02:
OK.

[00:06:43] Speaker 02:
All right.

[00:06:43] Speaker 02:
We'll do.

[00:06:43] Speaker 02:
So here, there was no bad act.

[00:06:47] Speaker 02:
There was no discovery abuse.

[00:06:48] Speaker 02:
There's no litigation misconduct.

[00:06:50] Speaker 02:
Nothing outside the norm of what is expected in typical patent litigation.

[00:06:55] Speaker 01:
Well heard.

[00:06:55] Speaker 01:
Go ahead.

[00:06:57] Speaker 01:
OK.

[00:06:57] Speaker 01:
As I understand what happened in the grant of the attorney fee award here is that the judge concluded that

[00:07:06] Speaker 01:
there's an alternate reason for the award, which was that your claim was woefully weak after Alice.

[00:07:16] Speaker 01:
That Alice was a critical moment in understanding the strength of your patent.

[00:07:22] Speaker 01:
You know, prior to the Alice opinion in June 2014, for about a year, we were living in a world where this court and bank

[00:07:34] Speaker 01:
in a very badly fractured divided opinion couldn't come to a majority decision on whether the CLS Bank patent claims were in fact patent eligible, right?

[00:07:44] Speaker 01:
So the law was, you know, at a minimum in disarray for a year.

[00:07:51] Speaker 01:
And that was the period of time where Judge Sleet here denied those initial set of motions to dismiss.

[00:08:00] Speaker 01:
Then Alice comes around in June 2014

[00:08:03] Speaker 01:
which greatly clarifies the law when it comes to computer-implemented inventions, specifically conducting business transactions on a network, right?

[00:08:15] Speaker 01:
That was what the Alice invention was about.

[00:08:19] Speaker 01:
Supreme Court, obviously there's still difficult line drawing on the margins, but at least in a core area, a core zone,

[00:08:31] Speaker 01:
purported inventions, they are, it was very clear that they are now outside of the patent system.

[00:08:37] Speaker 01:
And so, as I see what Judge Sleep did was, now with that great clarity that the Federal Circuit, unfortunately, we, you know, we struggled, we couldn't figure it out before that.

[00:08:52] Speaker 01:
Now with that great clarity, that was the time for you to make a reassessment of the strength of your claims.

[00:09:01] Speaker 02:
Your honor, Alice specifically says that it was following Mayo.

[00:09:06] Speaker 02:
The substantive test for 101 did not change in Alice.

[00:09:11] Speaker 01:
Right, so we didn't know the true vitality of the Mayo framework in this context.

[00:09:20] Speaker 01:
Computer implemented business methods until the Supreme Court's opinion in Alice.

[00:09:26] Speaker 01:
OK, now we've got that application in the context, which is the very context of your invention.

[00:09:32] Speaker 01:
So that's why I guess what I'm concerned about is I understand Judge Sleet's point of view.

[00:09:42] Speaker 01:
And now I'm trying to just assume for the moment that I agree with Judge Sleet's point of view.

[00:09:49] Speaker 01:
Now I need you to move me off of that.

[00:09:52] Speaker 01:
Where did Judge Sleet get it wrong?

[00:09:54] Speaker 02:
Judge Sleet got it wrong in awarding fees against inventor Holdings based on Judge Sleet's changing his mind after he further considered a motion.

[00:10:06] Speaker 05:
No, no, no.

[00:10:07] Speaker 05:
You're saying based on the law being clarified.

[00:10:10] Speaker 05:
Is that what you mean?

[00:10:12] Speaker 02:
I'm saying that if you look at the history of it, Alice, Ria Formeo, and Bilsky, Judge Sleet acknowledged that in his opinion.

[00:10:22] Speaker 02:
Yet, Judge Sleet also said, and it's on appendix page APPX007, the court finds that the 582 patent was dubious even before the Alice decision.

[00:10:31] Speaker 02:
That's an opinion Judge Sleet could have made when he looked at the previous motions to dismiss.

[00:10:36] Speaker 05:
He was dealing with a motion to dismiss.

[00:10:38] Speaker 05:
The standard is, is there any possibility, as opposed to even a summary judgment standard where there's a genuine issue of material fact

[00:10:49] Speaker 02:
Your Honor, he was ruling on a Rule 12C motion, which is similar to the same standard that's used for a motion to dismiss.

[00:10:57] Speaker 02:
It was not a motion for summary judgment here.

[00:10:59] Speaker 05:
That's what I'm saying.

[00:11:00] Speaker 02:
So he bent over backwards for you.

[00:11:04] Speaker 02:
It's hard to say that Judge Sleep bent over backwards when, if, as Judge Chen said, he was allowing the case to proceed to have an evidentiary record, there was no evidentiary record.

[00:11:16] Speaker 05:
As a trial judge, I used it.

[00:11:18] Speaker 05:
on motions to dismiss, rather than granting them, allow counsel multiple opportunities to amend their complaint in order to get by it, if they possibly could.

[00:11:29] Speaker 05:
I felt that was my obligation.

[00:11:33] Speaker 02:
Well, Your Honor, there could have been an oral argument for 101, but Judge Sleep didn't have one.

[00:11:36] Speaker 00:
Counsel, he also says that you persuasively argue that your argument, the validity, it had some merit.

[00:11:46] Speaker 00:
but at the beginning of the litigation.

[00:11:48] Speaker 00:
And then he goes on and talks about Alice.

[00:11:50] Speaker 00:
So I don't see error in this statement about it being dubious.

[00:11:54] Speaker 00:
Do you have something else?

[00:11:58] Speaker 02:
It's unclear to inventor Holdings how arguments that could be successful on one day were unsuccessful the next when the Supreme Court's Alice decision affirmed prior precedent.

[00:12:12] Speaker 02:
The Supreme Court did not say

[00:12:14] Speaker 02:
Here's a new test.

[00:12:15] Speaker 02:
Here's what's new and how to apply it.

[00:12:17] Speaker 00:
The Supreme Court said when you add a computer to the claim, something that previously, that is not going to save the claim.

[00:12:22] Speaker 00:
That is not going to make it survive the step one and step two analysis, right?

[00:12:27] Speaker 02:
No.

[00:12:27] Speaker 02:
The Supreme Court said there has to be something more.

[00:12:30] Speaker 02:
And then when you look at the federal circuits, this court's opinions and fish.

[00:12:34] Speaker 01:
So I understand Mayo, that was about optimizing some therapeutic regime, right?

[00:12:41] Speaker 01:
That was a life science claim.

[00:12:45] Speaker 01:
Alice was a computer-implemented business method on a network.

[00:12:50] Speaker 01:
And your invention is not about a medical diagnostic or optimizing a therapeutic.

[00:12:59] Speaker 01:
Your invention is a computer-implemented business method on a network.

[00:13:06] Speaker 02:
Your Honor, and Alice on, let's see what page it is,

[00:13:13] Speaker 02:
In Alice, in subheading one, beginning on 134 Supreme Court 2355.

[00:13:26] Speaker 02:
Just so you know, I'm pointing out you're into your rebuttal.

[00:13:29] Speaker 02:
The Supreme Court relies on Benson, Deere, and Fluke.

[00:13:32] Speaker 02:
And it says, quote, these cases demonstrate that the mere recitation of a generic computer cannot transform a patent-eligible abstract idea into a patent-eligible invention, end quote.

[00:13:41] Speaker 02:
So that means Alice didn't say anything new.

[00:13:43] Speaker 02:
It's just reaffirming prior precedent.

[00:13:46] Speaker 02:
And with that, I'd like to save the remaining time for the results.

[00:14:02] Speaker 06:
May it please the court?

[00:14:04] Speaker 06:
A district court has considerable discretion when determining the exceptionality of a case.

[00:14:10] Speaker 06:
Here, Judge Slink did not abuse that discretion,

[00:14:13] Speaker 06:
and inventor holdings has not and cannot point to any basis for this court to hold otherwise for three reasons.

[00:14:22] Speaker 06:
First, Judge Sleat's finding was not based on any clearly erroneous finding of fact.

[00:14:28] Speaker 06:
Second, Judge Sleat's finding was not based on any erroneous interpretation of the law.

[00:14:33] Speaker 06:
And third, Judge Sleat's finding was not arbitrary.

[00:14:37] Speaker 06:
As to the first point, Judge Sleat's finding was not

[00:14:41] Speaker 06:
based on any clearly erroneous finding of fact.

[00:14:43] Speaker 06:
There is no discussion in Inventor Holdings briefing pointing to any fact that he got wrong or overlooked.

[00:14:50] Speaker 06:
It's just they disagree with his decision.

[00:14:53] Speaker 06:
And that is the point at which the abuse of discretion standard affords the most deference to a court, is in the decision that he makes.

[00:15:03] Speaker 06:
As this court held in SFA Systems versus Newegg, it's not going to look necessarily at the correctness of the decision

[00:15:10] Speaker 06:
but whether it was based on the correct set of facts and the correct law.

[00:15:14] Speaker 06:
And that's what we have here.

[00:15:16] Speaker 06:
So if we're looking at the facts, the facts are very simple.

[00:15:18] Speaker 01:
Can you just respond to what your opposing counsel was saying for the past 12 minutes?

[00:15:23] Speaker 01:
Let's focus on that part.

[00:15:25] Speaker 06:
Absolutely, Your Honor.

[00:15:25] Speaker 06:
So this question, this idea that Judge Sleet changed his mind and simply decided, well, it was eligible in 2013, and it's ineligible in 2015.

[00:15:37] Speaker 06:
That's not what happened.

[00:15:40] Speaker 06:
Clearly, we had Alice in between.

[00:15:41] Speaker 06:
But I think Judge Cheney made a good point that simply denying a motion for 12b6 is not an affirmance of the eligibility of this patent.

[00:15:49] Speaker 06:
It's not saying this patent is eligible under 101.

[00:15:52] Speaker 06:
It's that the defendants at that time and under that law had not shown that there was no reasonable set of facts on which Inventor Holdings could proceed with its case.

[00:16:02] Speaker 06:
When Alice came out, it clarified the law and established that that two-part test from Mayo

[00:16:08] Speaker 06:
could be applied in computer implemented claims.

[00:16:13] Speaker 06:
So Bilsky doesn't mention a computer at all.

[00:16:16] Speaker 06:
Mayo doesn't mention a computer at all.

[00:16:17] Speaker 06:
So the question was, if we have a computer in our claims, is that going to be sufficient, especially under the second step of the Mayo test, to provide an inventive concept?

[00:16:27] Speaker 06:
And the Supreme Court said, no, that's not sufficient.

[00:16:30] Speaker 06:
Just having a general purpose computer, taking an abstract idea and applying it with a computer is insufficient.

[00:16:38] Speaker 06:
So under that standard, after that case came out, Judge Sleep was presented with our motion on the pleadings to establish that the claims were ineligible under 101, because all they did was address a business challenge and apply it on a computer.

[00:16:54] Speaker 06:
And Inventor Holdings admits this.

[00:16:56] Speaker 06:
If you take a look at page 206 of the record, in response to our motion for judgment on the pleadings, Inventor Holdings says, the claims are directed to a solution addressing a business challenge.

[00:17:07] Speaker 06:
So that's step one right there.

[00:17:09] Speaker 06:
We have the abstract idea.

[00:17:10] Speaker 06:
Now is there an inventive concept?

[00:17:12] Speaker 06:
The only thing that Inventor Holdings has ever pointed to is saying, oh, the computer is specially programmed.

[00:17:17] Speaker 06:
Well, actually, if you take a look at column five, from lines 46 to 52 of the patent, it says that that point of sale computer is a conventional computer.

[00:17:27] Speaker 06:
The remote seller is a conventional computer system.

[00:17:30] Speaker 06:
The buyer system is a conventional home computer.

[00:17:33] Speaker 06:
So every instance of something they've pointed to

[00:17:37] Speaker 06:
to claim that there is an inventive concept is just the conventional use of general computer components.

[00:17:44] Speaker 06:
So there isn't anything... We already ruled on that, right, with the Rule 36.

[00:17:47] Speaker 06:
Absolutely, Your Honor, and we can't necessarily say that there were certain things in the opinion of Judge Sleat on 101 that this Court agreed with, but it clearly didn't feel like anything else needed to be added by affirming it under Rule 36.

[00:18:01] Speaker 06:
So, Judge Sleat, at the time that he made his decision,

[00:18:06] Speaker 06:
in August of 2015, had a full record before him.

[00:18:09] Speaker 06:
And what did he see?

[00:18:10] Speaker 06:
He saw that when the 12b6, because he was also the judge, of course, who denied the 12b6 motions, at that time, Inventor Holdings said, Your Honor, you can't grant this motion for three reasons.

[00:18:22] Speaker 06:
One, we need claim construction.

[00:18:24] Speaker 06:
Two, we need a factual record.

[00:18:26] Speaker 06:
Three, these claims survive because they're concrete and tangible, because they passed the machine or transformation test.

[00:18:34] Speaker 06:
Then Alice came out.

[00:18:36] Speaker 06:
And Inventor Holdings made its argument to support eligibility of its claims three times after that.

[00:18:43] Speaker 06:
All three times, it made the exact same three arguments.

[00:18:46] Speaker 06:
It had to reevaluate its case, and it never did.

[00:18:49] Speaker 06:
Although it cited Alice, it rejected its applicability to its claims, which was the objectively unreasonable portion of its defense.

[00:18:57] Speaker 01:
Are you asking for fees for this appeal, too?

[00:19:00] Speaker 06:
Your Honor, we're asking this court to remand to Judge Sleep to determine, in his discretion, whether the fees for this appeal would be appropriate.

[00:19:07] Speaker 06:
Because it's certainly a question under 285 for the district court to answer.

[00:19:12] Speaker 06:
And so we think he should have that opportunity.

[00:19:15] Speaker 01:
So you're saying when it comes to the potential for a 285 fee award for a totally meritless appeal,

[00:19:30] Speaker 01:
That's not something that the federal circuit can ever rule on in the first instance?

[00:19:35] Speaker 01:
With respect to understanding the strength, the objective strength of an appeal?

[00:19:41] Speaker 06:
No, Your Honor, that's not what I'm saying at all.

[00:19:42] Speaker 06:
This court could make that determination, but the determination is reserved in the first instance for Judge Sleet as the trial court.

[00:19:50] Speaker 06:
That's what we have from the Supreme Court's decision in Highmark.

[00:19:53] Speaker 00:
And what's important to... Do you also think that this court can decide whether a particular appeal is a frivolous appeal and then award the fees under that standard?

[00:20:01] Speaker 00:
Yes, Your Honor.

[00:20:02] Speaker 00:
So that's separate from the 285 determination?

[00:20:05] Speaker 06:
Yes, Your Honor.

[00:20:06] Speaker 03:
That's one of the points that Inventor Holdings makes is that we... Can we also award the fees but remand to the district court to determine the amount?

[00:20:15] Speaker 03:
Absolutely, Your Honor.

[00:20:17] Speaker 01:
But I thought you said it's...

[00:20:18] Speaker 01:
Under Highmark, it's under the district court is the one in the first instance that has to make the determination.

[00:20:25] Speaker 06:
Because in that situation, we're talking about the 285 determination.

[00:20:29] Speaker 06:
If this court were to find that this appeal, for example, were frivolous, that would be a different finding.

[00:20:34] Speaker 06:
It would be based on the 285 finding of Judge Sleat.

[00:20:38] Speaker 06:
You would have the record of Judge Sleat finding that the case was meritless after Alice, and they appealed.

[00:20:43] Speaker 01:
If, hypothetically, this court were ever to deem the appeal frivolous and then award fees for that frivolous appeal, would a prevailing party on that be able to go back and get a double dip and seek 285 fees for the appeal?

[00:21:07] Speaker 06:
I think it would depend on what the basis was for that party to go back and say that the case was then exceptional.

[00:21:12] Speaker 06:
Was it exceptional because of the frivolous appeal, which would be under the Federal Circuit's rules?

[00:21:17] Speaker 06:
Or was it exceptional because, as in this case, the claims were meritless after Supreme Court precedent was handed down, and then they continued to make the same arguments time after time and were told in multiple occasions that that argument had to be changed and never did?

[00:21:34] Speaker 06:
And that's clear from, for example, the oral argument the last time we were before you when opposing counsel brought up the concrete and tangible nature of the claims.

[00:21:43] Speaker 06:
And Judge Hughes pointed out that that was against hordes of precedent on this issue.

[00:21:50] Speaker 01:
If we were to affirm, but not say anything more, and then you went down and asked for 285 fees for this appeal,

[00:22:00] Speaker 01:
Would you also simultaneously be asking for fees for your pursuit of the fees of the appeal?

[00:22:08] Speaker 01:
Or if you win that, then would you be asking for fees for prevailing on that victory of getting the fees on the appeal?

[00:22:15] Speaker 06:
Certainly, Your Honor, I think we would.

[00:22:16] Speaker 01:
I'm just trying to figure out how this works.

[00:22:19] Speaker 06:
So under this court's precedent in therisense, this court has the ability to award fees

[00:22:25] Speaker 06:
for the trial and then for any subsequent appeals.

[00:22:28] Speaker 06:
And it's in plural.

[00:22:29] Speaker 06:
So any appeals that come afterward, he can award fees for.

[00:22:33] Speaker 06:
And certainly, if we were to do that, we would put all of our fees before Judge Sleet and allow him in his discretion to determine which of those fees are based from the exceptional nature of the case and which ones would be appropriate to award to ensure the considerations he took into in mind when he made his decision, which was specifically to deter wasteful litigation.

[00:22:54] Speaker 06:
So he can make the decision of what do I have to award in this case to signal to litigants in the future that this is not a type of case you should bring.

[00:23:02] Speaker 06:
And if you were to bring it and Supreme Court precedent comes down, you have to reevaluate your claims and understanding that if your claims are ineligible, you should dismiss your case.

[00:23:12] Speaker 06:
So in this situation, we have Judge Sleet addressing from the outset their 12B6 motions with the other defendants and our 12C motion

[00:23:22] Speaker 06:
He had the entire record before him.

[00:23:25] Speaker 06:
He based his decision on the totality of the circumstances, and inventor Holdings has not been able and cannot point to any clearly erroneous finding of fact or erroneous interpretation of the law.

[00:23:36] Speaker 06:
Nor was his decision arbitrary.

[00:23:37] Speaker 06:
He took a measured approach.

[00:23:39] Speaker 06:
He didn't give us all the fees that we asked for.

[00:23:42] Speaker 06:
He said only from Alice, and you won't get your expert fees, just the attorney's fees, the appropriate award to deter wasteful litigation in the future.

[00:23:51] Speaker 06:
As for these reasons, Your Honors, unless you have any other questions, we ask this Court to affirm Judge Sleek's finding and uphold the exceptionality of this case.

[00:24:00] Speaker 06:
Thank you, Counselor.

[00:24:08] Speaker 05:
Go ahead, Mr. Rindley.

[00:24:10] Speaker 02:
Your Honors, although Alice did not change Mayor Orbilski, post-Alice, case law has been in flux.

[00:24:17] Speaker 02:
Beb Yathmeyan analyzed

[00:24:20] Speaker 02:
this case to the case of Edeka and Garfum in their brief.

[00:24:25] Speaker 02:
Now, in Garfum.com, the district court vacated its sanction award, finding that it didn't take into full consideration the changing environment of 101 and that the law has sufficiently evolved so that the plaintiff may have had an arguable or plausible inventive concept under Section 101.

[00:24:47] Speaker 02:
In Edeka,

[00:24:48] Speaker 04:
the case involved a... Judge Sleat didn't do that.

[00:24:53] Speaker 04:
He didn't find that.

[00:24:55] Speaker 04:
He found that it was clear that you should have dropped the case at that point.

[00:25:00] Speaker 02:
Judge Sleat's decision does not mention Enfish and the cases of Bascom, McRoe, and Trading Technologies all issued after Judge Sleat's May 31st, 2016 order, which just shows that the application

[00:25:18] Speaker 02:
of Section 101 and the test set forth in Mayo has been in flux.

[00:25:24] Speaker 02:
Even in the District of Delaware, in the case of YYZ, for example, the District Court held that due to the evolving nature of the Section 101 analysis, granting a 285 motion should not take place.

[00:25:40] Speaker 02:
Now, something my colleague has said during his argument was that the District Court had a full record in front of it.

[00:25:47] Speaker 02:
when ruling on a 12C motion, that statement's not true.

[00:25:50] Speaker 02:
There was no full record.

[00:25:51] Speaker 02:
Expert reports had been done, but they were never in front of Judge Sleat.

[00:25:57] Speaker 02:
And had Judge Sleat been able to see the expert reports, Inventor Holdings' technical expert did opine on the validity of the patent suit, including statements about the prior art and how what Inventor Holdings' patent covered was not routine or conventional.

[00:26:21] Speaker 02:
And last, I'd like to reiterate that Judge Slee on APPX 0008, in his opinion, said that he applied the MEGO test.

[00:26:32] Speaker 02:
The same test that were in front of him in the previous rulings.

[00:26:35] Speaker 02:
If your honors have no further questions, we ask that the district court's award be reversed.

[00:26:41] Speaker 02:
Thank you.

[00:26:42] Speaker 02:
The matter will stand submitted.

[00:26:43] Speaker 04:
Thank you, counsel.

[00:26:45] Speaker 01:
All rise.

[00:26:48] Speaker 01:
The Honorable Court is adjourned from day to day.