[00:00:01] Speaker 03: The first case for argument this morning is 16-208-7, Linkjian versus Big Link. [00:00:08] Speaker 03: Ms. [00:00:08] Speaker 03: Bolt, whenever you're ready. [00:00:20] Speaker 01: Good morning, Your Honors. [00:00:21] Speaker 01: May it please the Court, I'm here together with my co-counsel representing Linkjian in this appeal. [00:00:27] Speaker 01: In preparing for this oral argument, we did an analysis of the decisions from this court since the decision from the U.S. [00:00:33] Speaker 01: Supreme Court in the Alice case and since the enactment of the AIA, which included this new role that the PTAP has taken on in reviewing patents like in our case that have been determined to be a CBM patent. [00:00:47] Speaker 01: And we learned a lot from doing that analysis because we think it helps provide the context for what went wrong in this case. [00:00:55] Speaker 01: At the time that the PTAB decided that this case was a CBM case, subject to CBM review, they had no direction yet from this court. [00:01:04] Speaker 01: When you look at the timing, those decisions were rendered before this court issued its decision in Versada, before this court issued SightSound, before it issued Blue Calypso. [00:01:15] Speaker 01: And even in Versada, the court talks about the fact that the [00:01:19] Speaker 01: technological invention exception to CBM review. [00:01:24] Speaker 04: But you say the board had no guidance from this court. [00:01:29] Speaker 04: Well, we have. [00:01:31] Speaker 04: And we can read the claim. [00:01:34] Speaker 04: And the claim is passing data back and forth, right? [00:01:44] Speaker 01: No, Your Honor. [00:01:45] Speaker 01: What our claim actually does is it transforms data. [00:01:48] Speaker 01: It modifies data. [00:01:50] Speaker 01: And this is where we believe... It allocates commissions. [00:01:54] Speaker 01: No, Your Honor. [00:01:55] Speaker 01: It does much more than that. [00:01:56] Speaker 01: It transforms data from an affiliate code, which is a very specific code. [00:02:04] Speaker 01: And it's our position that that's where the Patent Trial and Appeal Board [00:02:10] Speaker 01: aired because they didn't understand the basic definition of the affiliate code. [00:02:16] Speaker 01: The affiliate code is specifically defined in our patent. [00:02:20] Speaker 01: It's defined as a code that is provided to the first person. [00:02:25] Speaker 01: So like in our example that we give in our brief, we use the example of Rose, and she's trying to maximize payments. [00:02:32] Speaker 01: She's a blog writer. [00:02:33] Speaker 01: She writes, and she wants to maximize her ability to earn money from writing this blog. [00:02:39] Speaker 01: So if she's a LinkedIn client, she has an affiliate code from very specific merchant sellers. [00:02:47] Speaker 01: And that code can change over time for any number of reasons. [00:02:51] Speaker 01: One thing that I like to analogize it to is we've all had the experience of our credit cards where for whatever reason fraud was detected on your card or you lost your card and you had to ask American Express or Visa for a new card. [00:03:05] Speaker 01: And then maybe your Comcast bill was on auto pay. [00:03:08] Speaker 01: Well, all of a sudden, when that one code that's on your credit card becomes invalidated, then Comcast no longer recognizes that credit card. [00:03:21] Speaker 01: So in the affiliate world, on the internet, people that are trying to maximize their participation in the affiliate program have that exact same problem. [00:03:32] Speaker 01: There are times that those affiliate codes, they become stale, they get changed, or for whatever reason, they're no longer valid. [00:03:38] Speaker 01: and they're no longer recognizable. [00:03:41] Speaker 01: So what our patent does is when that affiliate code is present in the text, our patent recognizes that the code is stale and modifies the code. [00:03:53] Speaker 04: Isn't this all software rather than improvements in the computer? [00:03:58] Speaker 01: No, Your Honor, I think it is a direct improvement in not just the computer, but in the way in which the computer interacts with the internet. [00:04:07] Speaker 01: And when we look at some of the decisions from this court, like the DDR case and NFISH, when you look at those, they're looking for the improvement in the technology. [00:04:17] Speaker 01: And clearly, since we've studied all the cases, we know the information that Your Honor and the rest of Your Honors want from us in making that analysis. [00:04:26] Speaker 01: So in our brief, one of the things we did is we specifically identified the technological problem, the technological solution, and then where that is in our claims. [00:04:35] Speaker 02: The PTAB held that your claims were not limited to the internet and were not focused on that as in the DDR case. [00:04:43] Speaker 02: What is your response to that? [00:04:44] Speaker 02: What particular language in your claim are you relying on? [00:04:47] Speaker 02: Is it the URL language or is it something else? [00:04:50] Speaker 01: Well, I think it's specific with respect to the affiliate code and that the modification of the affiliate code is the most important thing. [00:05:00] Speaker 01: And this, I think one of the points that goes to what you're asking is the PTAB's finding, consistent with DDR, that our patent is not internet-centric. [00:05:10] Speaker 01: Well, when you look at what our patent does, there is no function without the internet. [00:05:16] Speaker 01: That's why the bookstore example doesn't work, because you can't even consider our patent outside of the internet context. [00:05:24] Speaker 01: It deals with the affiliate program. [00:05:27] Speaker 01: The affiliate program that we're talking about and that our patent is attempting to maximize the participation in only exists in the realm of the internet. [00:05:36] Speaker 01: So what our patent does is it improves the functionality between the computer and how the computer is interacting and performing with things on the internet. [00:05:50] Speaker 01: So without the internet, our patent has no function. [00:05:53] Speaker 04: If we agree with you, we have to look at the prior off rejection, right? [00:05:58] Speaker 01: That's correct, Judge. [00:05:59] Speaker 01: That's correct. [00:06:00] Speaker 01: And we believe that that's easily decided in our favor as well. [00:06:05] Speaker 01: Because when you look at Landau, Landau is specifically different than our patent in two very important ways. [00:06:14] Speaker 01: Landau does not modify an affiliate code. [00:06:18] Speaker 01: And where we think the PTAB erred [00:06:21] Speaker 01: is in not fully doing a full claim construction analysis similar to a Markman hearing before they went off and interpreted the patents. [00:06:32] Speaker 01: So without knowing the definitions and without having a clear understanding of very important terms, it's impossible to do the proper analysis. [00:06:41] Speaker 01: So the other difference, and I want to go back to that one in a moment because there's really two differences with Landau. [00:06:50] Speaker 01: And as the court knows, we really only need one difference, and that satisfies where it's not anticipated. [00:06:56] Speaker 02: I understand that the board only construed automatically? [00:07:01] Speaker 02: Correct. [00:07:02] Speaker 02: What other terms did you ask the board to construe? [00:07:04] Speaker 01: We asked them to construe four terms. [00:07:08] Speaker 01: The terms that we asked them to construe are... And the other side asked for four different terms, too. [00:07:17] Speaker 01: But the ones we asked for were [00:07:20] Speaker 01: affiliate capable merchant, preferred affiliate code, and we proposed that that definition is the same as preferred commercial agent, modified data, and then automatic automatically. [00:07:36] Speaker 01: So this sort of goes back to the point I was making originally about the CBM issue. [00:07:41] Speaker 01: When you look at their order, and I do think this is important, Judge Stoll, so I sort of want to walk you through the procedure of this. [00:07:49] Speaker 01: The other side files their petition. [00:07:52] Speaker 01: They ask for four terms to be construed. [00:07:58] Speaker 01: First computer, intermediary computer, server, and serving. [00:08:03] Speaker 01: In our preliminary response, we ask for the four terms I just went over with you. [00:08:09] Speaker 01: Then the next thing that happens is the orders granting CDM review. [00:08:16] Speaker 01: In those orders, [00:08:18] Speaker 01: when you read what the court did, you're not clear at all. [00:08:22] Speaker 03: When you read what the board did. [00:08:23] Speaker 01: Yes, yes, Judge. [00:08:24] Speaker 01: When you read what the board did, you're not clear at all whether they accepted everyone's terms, whether they didn't accept those terms. [00:08:34] Speaker 01: They only say that they're going to interpret automatic automatically. [00:08:39] Speaker 01: And so then when you go forward and you look then at their analysis, what our position is, is that [00:08:46] Speaker 01: If they did accept our definitions, which is one interpretation, that they accepted the definitions that everyone else proposed, our position is that they didn't apply them properly. [00:08:57] Speaker 01: And when you go further down the line to the oral argument, and when you look at the oral argument and where they're talking about code, which sort of goes back to a point I think you were making just a few moments ago, Judge Laurie, they ultimately conclude at the oral argument, and it's very clear there that they just see [00:09:16] Speaker 01: It's just code replacing code, that there's no functionality in the code. [00:09:20] Speaker 01: It's just code replacing code. [00:09:23] Speaker 01: And that's not accurate. [00:09:25] Speaker 01: What our patent does is it's looking for very specific code, code that has a very specific function. [00:09:33] Speaker 01: And it is replacing that code with a different code that has a very specific function. [00:09:40] Speaker 01: And so what we believe they lost [00:09:43] Speaker 01: is some of these fundamental definitions that make it necessary to do the 101 analysis, both steps of that, that make it necessary to do the Landau analysis and the Priest analysis. [00:09:55] Speaker 01: Because if you're not working with the right terms and you're not working and you don't have an understanding of what those terms mean vis-a-vis our patent, then it necessarily leads you to an improper determination. [00:10:09] Speaker 01: For example, [00:10:11] Speaker 01: talking about the prior art with Landau. [00:10:14] Speaker 01: They say, the PTAB says, that the webmaster ID is the same as an affiliate code. [00:10:22] Speaker 01: It's absolutely not. [00:10:24] Speaker 02: So it's your position that even though post-institution, those claim construction issues weren't addressed by your client, that that's not a waiver. [00:10:33] Speaker 02: You had no obligation to address those, even though the PTAP's institutional decision didn't address them. [00:10:40] Speaker 01: Our position is that they were continually addressed throughout the whole rest of the proceeding. [00:10:45] Speaker 01: When you read the oral argument, [00:10:48] Speaker 01: It's almost as though everyone is still doing claim construction at the oral argument. [00:10:54] Speaker 01: And there's still all of this talk about what the terms mean. [00:10:58] Speaker 01: And then when you get to the final decision, they make a decision based on their definitions of the terms. [00:11:04] Speaker 01: So if we can show that their definitions of the terms are incorrect, it would be no different than if they had, let's say they had issued some other order and had said, here's how we're defining all the terms, if the board had said that. [00:11:17] Speaker 01: If that was wrong, we would still be able to raise that at this stage before the court. [00:11:24] Speaker 01: So in other words, when their final decisions reach the wrong result because of a misinterpretation of those terms, our position is there's no way that's waiver, particularly when this is discussed at length at the oral argument. [00:11:39] Speaker 03: Can I just take you back to the very first point you were making about the CBM? [00:11:43] Speaker 03: I wasn't clear on [00:11:46] Speaker 03: was your take, you started by saying that there are all these intervening cases. [00:11:51] Speaker 03: Were you trying to argue that this is not a CPM patent? [00:11:56] Speaker 00: Yes, that is our position. [00:11:58] Speaker 03: And you're relying on the portion that talks about technological innovation? [00:12:02] Speaker 00: Yes, Judge. [00:12:03] Speaker 03: And your view is what? [00:12:05] Speaker 03: That recent cases demonstrate that this is a technological innovation? [00:12:10] Speaker 01: Yes. [00:12:11] Speaker 01: And my point was primarily that [00:12:14] Speaker 01: The PTAB didn't have a lot of direction with all of the case law that's now coming out from this court. [00:12:20] Speaker 01: There is a series rapidly, you know, this court is issuing opinions on this issue. [00:12:26] Speaker 03: But what I was unclear on is on what issue? [00:12:30] Speaker 03: I mean, are there cases now that are saying these aren't CBMs because they're technological innovations? [00:12:35] Speaker 01: There's actually been a few cases that have come out even since all of our briefing was done. [00:12:40] Speaker 01: I think cases that help frame the issue [00:12:44] Speaker 01: Like even the cases that are more on the 101 and 102 analysis. [00:12:49] Speaker 01: For example, ENFISH. [00:12:50] Speaker 01: ENFISH came out afterwards. [00:12:52] Speaker 01: BASCOM came out afterwards. [00:12:54] Speaker 01: AMDOCS came out afterwards. [00:12:56] Speaker 01: Now, all of those are not doing a CBM analysis, but they're reviewing 101 and inventive concept. [00:13:05] Speaker 01: And when you look at Versata, what Versata does on a CBM analysis [00:13:11] Speaker 01: is when it's looking at the technological invention. [00:13:14] Speaker 03: So you're saying that under our case law, you're sort of morphing the part two of the CBM definition of technological innovation and the step two of the Alice analysis, which is whether they're inventive concept. [00:13:27] Speaker 01: I'm just trying to understand. [00:13:29] Speaker 01: Right. [00:13:29] Speaker 01: That is certainly what Versada does. [00:13:31] Speaker 01: I'm saying that I think if you look at just the definition, even though it's not particularly helpful, as Versada says, [00:13:39] Speaker 01: If you're looking for a technological problem and a technological solution, I think just on that basic definition, this should not have been subject to CBM review. [00:13:51] Speaker 01: But when you look at what Versata does, Versata sort of pulls in the inventive concept analysis, step two of ALICE, to help make that decision by saying, is there improvements in the computer and all of those things? [00:14:05] Speaker 01: I'm well into my rebuttal so I would just like to preserve some time. [00:14:09] Speaker 01: Thank you, Judge. [00:14:34] Speaker 05: Good morning, your honors. [00:14:35] Speaker 05: May it please the court? [00:14:36] Speaker 05: Richard Martinelli representing SkimLink and BigLink. [00:14:40] Speaker 05: I think we're through the looking glass on this appeal. [00:14:43] Speaker 05: The systems that LinkGene is describing to try and save its patent bear no resemblance to what's described in the specification, what's claimed, and even what they argued to the board. [00:14:56] Speaker 05: The LinkGene patents don't have anything in them about choosing among a number of potential preferred affiliates [00:15:03] Speaker 05: which one you want to use. [00:15:05] Speaker 05: It assumes that the system knows who the preferred affiliate is and just wants to check and see if that's who's going to get this commission. [00:15:13] Speaker 05: The systems also don't disclose anything about choosing among merchants to say, okay, a webmaster can direct their sale to one merchant one day and one merchant another day. [00:15:25] Speaker 05: There's nothing like that in there. [00:15:27] Speaker 05: The patents don't even disclose a system to help a webmaster like Rose. [00:15:32] Speaker 05: The one concrete example that this patent gives about the utility of its system is in column four in the last paragraph. [00:15:39] Speaker 05: It describes the situation of a small website that makes some sales through a larger web merchant like Amazon. [00:15:48] Speaker 05: And the system, as described in that paragraph, is operated by a third party who gets in between the customer of the small merchant and the big merchant and says, [00:16:01] Speaker 05: Do we really want this small website to get this commission? [00:16:04] Speaker 05: Is it the person we prefer? [00:16:06] Speaker 05: And if it's not, they manipulate the commission system and redirect it. [00:16:13] Speaker 05: The appellants also talk a lot about the advantage of the fact that their system... Are you heading for an argument on 101 or 102? [00:16:24] Speaker 05: I think 101 handles this pretty readily. [00:16:29] Speaker 05: I'm actually [00:16:30] Speaker 05: sort of confused at what they think their invention is. [00:16:33] Speaker 05: I think their invention is so abstract that they have trouble keeping straight exactly what they're doing. [00:16:39] Speaker 05: They describe a general goal of changing a commission ID from one person to another, replacing one code with another code, basic data manipulation. [00:16:51] Speaker 05: This is something that is well within the bar of cases this court has routinely found [00:16:59] Speaker 05: ineligible since Alice. [00:17:02] Speaker 05: Simply applying a commission system on the internet and having basic ministerial functions to change one code to another is exactly the sort of thing that isn't eligible without a specific technical application. [00:17:16] Speaker 02: Do you agree that the claims are internet centric? [00:17:19] Speaker 05: No. [00:17:20] Speaker 05: There's a first computer and a second computer [00:17:24] Speaker 05: but they don't actually specify any details about that computer. [00:17:27] Speaker 02: What about the fact that what they're talking about is uniformly source locators, URLs. [00:17:32] Speaker 02: Doesn't that bring you into the realm of the web and the internet? [00:17:36] Speaker 05: It slightly suggests that, but to be honest... It suggests other than that. [00:17:41] Speaker 05: Well, URLs are actually broader than running on the public internet. [00:17:45] Speaker 05: You can have an internal system that has a URL to go on a purely internal website. [00:17:52] Speaker 05: Um, but frankly, I don't know that that matters because there's been plenty of systems in this court that have been internet centric that have been found to be patent and eligible. [00:18:03] Speaker 05: So simply moving a commission system to the internet doesn't make it patent eligible, even if it is running on the internet. [00:18:13] Speaker 05: So, um, a good example of that would be, I think by safe and even [00:18:22] Speaker 05: some of the other commission systems that have been held ineligible. [00:18:30] Speaker 05: So I think probably just to sum up here because I actually think that our briefing handles this pretty well. [00:18:47] Speaker 05: What I find in reading all these cases [00:18:50] Speaker 05: is that the patents that are found eligible have a very clearly articulated technical problem and they match that clear technical problem up with a specific technical solution and then they claim that solution. [00:19:04] Speaker 05: That's not present in the link gene disclosure and it's not present in the link gene claims. [00:19:11] Speaker 05: To the extent they want, they have a goal of maximizing participation, there's no specific unique technical solution to that problem. [00:19:19] Speaker 05: In fact, when you look at the background or the specification, they don't even mention actual computers. [00:19:27] Speaker 05: The word computer doesn't appear in their description of all their different systems. [00:19:31] Speaker 05: There's no system architecture that shows the different devices and how they interrelate with one another. [00:19:38] Speaker 05: There's not even a requirement in the description of who needs to run the system. [00:19:48] Speaker 05: The specification generically talks about the system being run by the user, meaning the web browser, an ISP. [00:19:55] Speaker 05: It can basically be anywhere. [00:19:57] Speaker 05: It just needs to be on some computer. [00:20:00] Speaker 05: So I think the briefs actually cover this all pretty well. [00:20:05] Speaker 05: And I'm here for the court if you have any specific questions. [00:20:08] Speaker 03: Thank you. [00:20:19] Speaker 01: I think that when you look at our specifications, it's clearly internet-centric. [00:20:24] Speaker 01: You know, we have to think back to the time before computers connected to the internet. [00:20:30] Speaker 01: Back in the day, they really were fancy typewriters. [00:20:34] Speaker 01: They were typewriters that could remember everything. [00:20:37] Speaker 01: And we all began word processing on standalone computers that had no connection to the internet. [00:20:43] Speaker 04: Do you think under our cases that being internet-centric matters? [00:20:48] Speaker 01: I think it does matter. [00:20:51] Speaker 01: It matters to what our invention is. [00:20:53] Speaker 01: One of the ways in which the PTAB erred, because in our position our opponents led them down that road, is they bought this bookstore analysis. [00:21:03] Speaker 01: But when you look at our claims, our patent doesn't function without the internet. [00:21:10] Speaker 01: And throughout our specifications, we talk about the affiliate program and how it exists on the internet. [00:21:18] Speaker 01: There's nothing about what we've patented that can be performed in the real world, which is why we believe, really, the train got off the track from the very beginning, and then there was no... Does the Supreme Court and Alice hold that, you know, just because you have something and you say, do it on a computer, that in itself doesn't make it eligible? [00:21:38] Speaker 02: How is this different from that? [00:21:40] Speaker 02: Just doing it on the Internet is not going to make it something that's eligible. [00:21:44] Speaker 01: I agree with you, that's what Alice says. [00:21:46] Speaker 01: But what we do is we have very specific code. [00:21:50] Speaker 01: So Rose cannot get paid if the code is not properly, the right code is the way I should say it. [00:22:00] Speaker 01: So when the sale happens, if the code is not right, she doesn't get paid. [00:22:05] Speaker 01: Our system, before the user, ever receives the page back on the internet. [00:22:11] Speaker 01: So in our position, [00:22:13] Speaker 01: This case is a lot like Bascom. [00:22:15] Speaker 01: It's like Enfish. [00:22:17] Speaker 01: I think Bascom is the one where they're filtering content. [00:22:22] Speaker 01: Before the page ever comes back to the user on the computer, the data is modified and the data is changed. [00:22:30] Speaker 01: And it's specific data. [00:22:32] Speaker 01: It's specific code. [00:22:33] Speaker 01: It's not just any code. [00:22:35] Speaker 01: It's an affiliate code that is changed to a preferred affiliate code. [00:22:40] Speaker 01: It only arises in the internet. [00:22:42] Speaker 01: And so, for example, if you just had a magazine, let's say Rose, instead of putting her article on the computer, her blog, let's say she wrote a magazine article and it was in a magazine. [00:22:54] Speaker 01: This doesn't arise in that context. [00:22:56] Speaker 01: It can only arise because of the connection to the internet. [00:23:00] Speaker 01: And I think the internet-centric point, Judge Laurie, goes to the fact that we're solving a problem. [00:23:06] Speaker 03: Thank you. [00:23:06] Speaker 03: Thank you so much.