[00:00:38] Speaker 04:
Next case is Next Point, Inc.

[00:00:41] Speaker 04:
versus Hewlett-Packard, 2016-23-12.

[00:00:45] Speaker 04:
Mr. Toppick, is it?

[00:00:48] Speaker 01:
Yes.

[00:00:50] Speaker 01:
Thank you, Your Honor.

[00:00:52] Speaker 01:
May it please the Court?

[00:00:53] Speaker 01:
I'd like to start just briefly by describing what the problem was that this patent is getting at and what it did to some of it.

[00:01:01] Speaker 01:
The problem is you have a body of electronically stored information that would commonly, for example, be produced in discovery in a lawsuit.

[00:01:09] Speaker 01:
And you need to process that information and you want to do that in a cloud-based environment.

[00:01:14] Speaker 01:
And the question is how do you do that?

[00:01:16] Speaker 01:
How do you take that?

[00:01:16] Speaker 02:
I just want to make clear what it's not claiming.

[00:01:18] Speaker 02:
You're not saying that what's unique or patentable about this is putting it in a cloud-based environment, right?

[00:01:25] Speaker 01:
That's exactly right.

[00:01:26] Speaker 02:
Okay.

[00:01:26] Speaker 01:
We're saying that there's a specific way of going about doing that.

[00:01:30] Speaker 01:
which is to take that data, parse it, pull out the metadata, and divide it into the smallest block of information that makes sense based on what the function is that's going to be performed on it.

[00:01:41] Speaker 01:
So not to just, as opposed to what was teased out in the prosecution history, was prior art that said you just divide it in a static block.

[00:01:50] Speaker 01:
And so that's really what's different here.

[00:01:52] Speaker 02:
But assuming, for the sake of argument, that that really is different, that

[00:01:57] Speaker 02:
doing it document by document or page by page is somehow different.

[00:02:02] Speaker 02:
How is just making that done in a computational format or doing it on a computer?

[00:02:10] Speaker 02:
Why does that add enough?

[00:02:12] Speaker 01:
Well, it is not saying process this ESI in some undisclosed way using a computer.

[00:02:20] Speaker 01:
It's saying have the computer go through the following steps to decide how to divide up the data and how to assign

[00:02:28] Speaker 01:
those processing tasks across the cloud.

[00:02:30] Speaker 01:
And that's what's different.

[00:02:31] Speaker 01:
So the only thing that would be missing is the actual code written that says, okay, this is how you actually do that.

[00:02:37] Speaker 01:
And I don't think we're at a point of saying that in a computer invention you have to actually list the code or that level of specificity in order to meet the requirement that you have basically a technical solution to a technical problem.

[00:02:52] Speaker 02:
I mean, I was a young associate sitting in warehouses going through boxes and I would decide whether or not we needed to debate stand something on a document by document basis or whether we needed to produce something as it was held in the normal course so it would be, you know, on a topic by topic basis.

[00:03:12] Speaker 02:
Why isn't that what's normally done?

[00:03:15] Speaker 02:
By hand.

[00:03:16] Speaker 01:
So for one, there is a big difference between a large volume of electronically stored information and paper documents.

[00:03:23] Speaker 01:
And there's all kinds of case law and things that have evolved about ESI and what's expected in electronic discovery and how quickly it should happen and how you go about actually processing all that.

[00:03:33] Speaker 01:
And I think this is maybe something where the district court got a little bit turned around.

[00:03:38] Speaker 01:
We're not talking about what processing on the documents is being done.

[00:03:43] Speaker 01:
We're talking about

[00:03:43] Speaker 01:
How do you decide, how do you process that batch of information and divide out those processing tasks themselves to different computers?

[00:03:52] Speaker 01:
So it doesn't really lend itself to a real world analogy because you're talking about trying to process large volumes of information very quickly and doing that more quickly by putting it in the cloud where you're basically saying in real time very quickly

[00:04:06] Speaker 01:
As soon as you computer are ready for the next page, here's the next page.

[00:04:10] Speaker 01:
Or if it's something that needs to be processed on a document basis, as soon as you're done with this document, here's your next document.

[00:04:16] Speaker 01:
So this is not broad functional claiming of the sort of the many cases that have come before this court.

[00:04:23] Speaker 01:
It basically says, here's a commercial idea, or here is an economic principle, and says, go do it on the computer with a, quote, processor or with code.

[00:04:32] Speaker 01:
I mean, this actually, in the claim, says these are the steps.

[00:04:36] Speaker 01:
that the host computer will perform in order to do that, in order to make that determination.

[00:04:41] Speaker 01:
And that's what's just fundamentally different from the cases in which you have found that there was not patentable subject matter.

[00:04:48] Speaker 02:
Does Amdocs help you at all?

[00:04:51] Speaker 01:
Yes.

[00:04:51] Speaker 01:
So I think that Amdocs does.

[00:04:53] Speaker 01:
The difference between this case and Amdocs is, as I read Amdocs,

[00:05:00] Speaker 01:
what you're saying is you have these known pieces, but you're putting them together in a new particular structure.

[00:05:08] Speaker 01:
And what we're saying here isn't so much that it's a new particular structure, it's a new particular process that the computers use within that structure.

[00:05:16] Speaker 01:
And I don't think there's any appreciable difference between those two things, because they're both getting at the same problem, which is

[00:05:23] Speaker 01:
We don't want to allow broad functional claiming of economic principles or commercial principles.

[00:05:28] Speaker 01:
We want there to be something technical.

[00:05:30] Speaker 01:
We want a technical solution to a technical problem.

[00:05:32] Speaker 01:
And that's exactly what you have here.

[00:05:34] Speaker 01:
You have the question of, well, how does the computer actually go about doing that?

[00:05:39] Speaker 01:
How does it divide those tasks up?

[00:05:41] Speaker 01:
And how does it give it to the different computers that are within the cloud?

[00:05:45] Speaker 01:
So I think that AMDAC does help, especially when you make that comparison.

[00:05:50] Speaker 02:
You object to the fact that there was no differentiation between claim one, which the court found to be representative, and the dependent claims, but you don't really say in your brief what about the dependent claims add something more or different than you feel is added by claim one.

[00:06:09] Speaker 02:
So what is it in the dependent claims?

[00:06:11] Speaker 01:
Well, I think one example is the bait stamping and by page example.

[00:06:16] Speaker 01:
So one of the complaints is, well, what does that mean?

[00:06:19] Speaker 01:
How do you know what the smallest block would be in any given instance?

[00:06:25] Speaker 01:
So it's then even going one step further and saying, well, for this process to be performed,

[00:06:33] Speaker 01:
this is the smallest block.

[00:06:35] Speaker 01:
So really then, there's nothing left to do other than code that example, code that process.

[00:06:40] Speaker 01:
So I think that addresses it.

[00:06:42] Speaker 01:
There's also issues of preemption that HP has brought up.

[00:06:47] Speaker 01:
And throughout the dependent claims, you have various limitations on the types of computers and the types of architecture that would be used.

[00:06:55] Speaker 01:
And so there is no record that says, well,

[00:07:00] Speaker 01:
All those things are known.

[00:07:01] Speaker 01:
This is all just sort of post-hoc, that there isn't anything new about any of that.

[00:07:04] Speaker 01:
This is unemotionally dismissed.

[00:07:06] Speaker 02:
And so... But if we're talking about the dependent claims and you're talking about preemption, the dependent claims have to include what's in the independent claim.

[00:07:14] Speaker 02:
So, I mean, if the independent claim preempts, then the dependent claims would similarly preempt.

[00:07:21] Speaker 02:
You just have additional limitations.

[00:07:23] Speaker 01:
Well, but if those additional limitations narrow the scope of the claims, then there is less that is being preempted.

[00:07:29] Speaker 01:
Because what is preempted is what the claims claim, not the broad ideas that are maybe set forth as background in the specification.

[00:07:38] Speaker 01:
It's the claims.

[00:07:38] Speaker 01:
We have to look at what the claims actually claim.

[00:07:41] Speaker 01:
So the more dependencies you put in, then the more things that aren't covered in the more alternative ways there are to do it.

[00:07:49] Speaker 04:
But preemption aside, looking at the claim limitations, which is what we have to do, it looks like it's handling information.

[00:07:59] Speaker 04:
True, breaking it into blocks, but it's information to information, data to data.

[00:08:08] Speaker 04:
Why isn't that abstract?

[00:08:10] Speaker 01:
It's not abstract because unlike claims that just say do that on a computer, it sets forth the technical process for how you go about dividing that information and how you allocate those tasks to the different computers that are within the cloud architecture.

[00:08:25] Speaker 01:
I think that's really the big fundamental difference here from claims that have been found to be ineligible, is you actually have process steps in the claims that are saying, this is how you go about performing that.

[00:08:37] Speaker 01:
So we would have to go so far as to say, if it involves data processing at all, it's ineligible.

[00:08:43] Speaker 01:
And there is no precedent that has gone that far.

[00:08:46] Speaker 04:
Aren't the steps abstract?

[00:08:49] Speaker 01:
Are the steps abstract?

[00:08:51] Speaker 01:
So no, I don't believe the steps are abstract.

[00:08:54] Speaker 01:
It walks through... Which ones are not?

[00:08:58] Speaker 01:
I don't believe any of them are abstract.

[00:09:00] Speaker 04:
I think the dispute here has been centered around... You mean providing processing instructions, receiving the instructions, devouring data?

[00:09:10] Speaker 04:
None of them are abstract?

[00:09:13] Speaker 01:
I think the central limitation that's at issue in the appeal is the third one.

[00:09:19] Speaker 01:
dividing the electronically stored information into a plurality of blocks of information wherein each said plurality of blocks of information comprises the smallest block of information to be processed at one time depending on type of processing required.

[00:09:33] Speaker 01:
So that is not abstract.

[00:09:35] Speaker 01:
An abstract claim here would just be one that says process electronically stored information in the cloud or using cloud computing.

[00:09:44] Speaker 01:
That would be broad functional claiming, and it would be too abstract.

[00:09:47] Speaker 01:
And that's not what's happening in these claims.

[00:09:49] Speaker 01:
This is laying out the process of how you actually go about doing that.

[00:09:54] Speaker 01:
Another broader point that I think needs to be highlighted is the district court really discounted or overlooked the fact that the limitation that we're pointing to is saying this is why this is not abstract, this is why it's not conventional, is the very limitation that was argued in prosecution

[00:10:13] Speaker 01:
to distinguish the prior art.

[00:10:15] Speaker 01:
So you have a 12b6 motion.

[00:10:17] Speaker 01:
You have no evidence that's been presented.

[00:10:20] Speaker 01:
You have all the inferences that should be in favor of the patentee.

[00:10:22] Speaker 01:
And you have a prosecution history that points to the very limitation that we're relying on as the one that ultimately led to the issuance of the claims.

[00:10:31] Speaker 01:
And you have something that is a technical solution to a technical problem that coupled with the prosecution history, I don't think there's any real argument

[00:10:42] Speaker 01:
to say that that is not a technical solution or that it was conventional.

[00:10:46] Speaker 01:
If it was new enough to get the claims issued, then it doesn't make sense to say, well, but it was conventional.

[00:10:53] Speaker 03:
And I recognize that conventionality and novelty... Can you just try to explain to me distributed computing, which I think your spec says, yeah, that was around.

[00:11:05] Speaker 03:
If you're going to distribute the computing

[00:11:08] Speaker 03:
on some large amount of information, you need to break it into pieces, let's call them blocks, and send the different pieces to different nodes on the network, different computers that are going to be doing the pieces.

[00:11:24] Speaker 03:
And you better send them a piece that is, or you can choose to send them, the smallest piece to be processed.

[00:11:33] Speaker 03:
And this only says comprises the smallest block of information.

[00:11:37] Speaker 03:
So it includes this.

[00:11:38] Speaker 03:
It has to be at least that large.

[00:11:42] Speaker 03:
What's technical about, or what's the asserted advance in the technical aspect?

[00:11:49] Speaker 01:
It's as compared to the prior earth that was cited in prosecution.

[00:11:52] Speaker 01:
Let's say you get all this data and you set a static size.

[00:11:57] Speaker 01:
And you say, we're going to just divide that information for processing based on a set number of bits, for example, as opposed to having that depend upon what the processing task is that's going to be performed.

[00:12:11] Speaker 01:
And what's in the record is that in prosecution.

[00:12:15] Speaker 01:
And so I think there's maybe a fine line between when something you can safely say common sense would tell you it must work that way versus saying,

[00:12:28] Speaker 01:
Well, to a person of skill in the art in that field at that time, is that really true?

[00:12:32] Speaker 01:
Is it really such that this was conventional?

[00:12:35] Speaker 01:
And what sets this case largely apart from many others, I think, is that prosecution history, where that very issue was what was put before the Patent Office, and then the claims issued after that.

[00:12:45] Speaker 01:
And so I don't think there's a record by which you could conclude that that's something everybody would know to do, or that that was conventional.

[00:12:55] Speaker 01:
I wanted to actually into my rebuttal time a little bit.

[00:12:59] Speaker 04:
You are?

[00:12:59] Speaker 04:
So, shall we save it for you, or do you want to continue?

[00:13:03] Speaker 01:
Yeah, I think I'll save it unless there's any other questions you might have.

[00:13:08] Speaker 04:
All right.

[00:13:08] Speaker 04:
Mr. Shelton.

[00:13:17] Speaker 00:
Good morning, Your Honors.

[00:13:18] Speaker 00:
May it please the Court, Barry Shelton, for all the appellees.

[00:13:23] Speaker 00:
This case falls squarely within what is now a well-worn groove that started with Alice and continues to a decision from this court this very week on Tuesday.

[00:13:34] Speaker 00:
That would be the Intellectual Adventures 2 versus Capital One, which was authored by, it's a presidential opinion by Chief Judge Prost.

[00:13:45] Speaker 04:
And that groove is... What about the dividing limitation here?

[00:13:50] Speaker 00:
Your Honor, that...

[00:13:53] Speaker 04:
technical as your opposing counsel says.

[00:13:56] Speaker 00:
It's not, Your Honor.

[00:13:58] Speaker 00:
And the reason why it's not is that, as Judge O'Malley referenced with regard to her early days as an associate, and probably just about everybody in this room, the notion that you... Young people back there.

[00:14:11] Speaker 00:
Not yet.

[00:14:13] Speaker 00:
The notion that processing a document by page or bait stamping a document by page, that that's somehow

[00:14:22] Speaker 00:
a technological innovation or something that's unconventional, it beggars belief, right?

[00:14:29] Speaker 00:
I mean, the way that the legal field has processed documents for centuries has been on a quanta that makes sense for whatever you're doing.

[00:14:39] Speaker 00:
So if you're bait stamping a document, then naturally you stamp each page, right?

[00:14:44] Speaker 00:
We don't talk about bait stamping a paragraph.

[00:14:46] Speaker 00:
So this is a red herring.

[00:14:49] Speaker 00:
It's a token limitation.

[00:14:52] Speaker 00:
It was amended during prosecution to secure allowance.

[00:14:55] Speaker 00:
And the reason why that is important here is that all the rest of the claim limitations, including these very conventional ESI processing steps, were in the prior art.

[00:15:07] Speaker 02:
The limitation of... But in the prior art, did they actually divide this up this way?

[00:15:12] Speaker 02:
I mean, what happened is we went from my warehouse to just putting everything, everything into the computer.

[00:15:19] Speaker 02:
and then having to create search engines to figure out how to find what particular document you want or how to identify a particular document.

[00:15:28] Speaker 02:
Isn't this dividing here sort of an improvement upon that methodology?

[00:15:35] Speaker 00:
No, Your Honor, I respectfully disagree because this type of division into blocks was already being done both before the advent of computers to process what we now call ESI or electronically stored information.

[00:15:48] Speaker 00:
But even after the advent of the shift from paper to ESI, it was natural to deal with documents and pages on a basis that made sense.

[00:16:00] Speaker 02:
Wasn't there a factual dispute though about what the precursor ESI really was?

[00:16:06] Speaker 02:
Should this have been decided on a motion to dismiss or should there have been at least some development of the record to make it clear what

[00:16:14] Speaker 02:
the methodology under the precursor, yes, I was.

[00:16:17] Speaker 00:
Your Honor, I don't think that there was any need to perform any fact-finding in this case and that it was appropriate for the district court to dismiss the case and find the patent ineligible because all the steps that are recited in claim one, the only independent claim of the patent, are so conventional and well-known.

[00:16:36] Speaker 00:
We hear those phrases from cases like Bilsky

[00:16:40] Speaker 00:
Mayo and Alice, but this is one that's in our wheelhouse.

[00:16:44] Speaker 00:
This is a case about the processing of legal materials, depositions, documents, evidence, and so on, and what could be more routine and conventional than stamping a document page by page.

[00:16:59] Speaker 00:
Yet that is the slender read that Nextpoint relies upon and claims as an innovation.

[00:17:06] Speaker 02:
How is this different from the distributed

[00:17:09] Speaker 02:
architecture in Amdocs?

[00:17:12] Speaker 00:
It's completely different.

[00:17:13] Speaker 00:
I'm glad you asked the question, Your Honor, because unlike the Amdocs system that was claimed, where they actually had innovative concepts that were disclosed and claimed in the nature of actually detecting information throughout the network and where it was most timely to capture it without disrupting operation of the network, and then

[00:17:37] Speaker 00:
sent the material that was collected, the data, to a server for processing elsewhere.

[00:17:43] Speaker 00:
So Amdocs actually is about a patent that discloses the system in detail.

[00:17:48] Speaker 00:
Here, the specification is replete with references to you could use anything.

[00:17:55] Speaker 00:
So this is just like what the Supreme Court warned us about in Alice, where you have a wholly conventional and generic implementation on computers without anything specific being taught.

[00:18:07] Speaker 00:
That's a very example of something that is abstract and does not provide that inventive component necessary to save an otherwise abstract claim from being ineligible.

[00:18:21] Speaker 00:
Here, for example, on the A61, column 7, line 17 to 22, it talks about the cloud computing network.

[00:18:31] Speaker 00:
And there's no disclosure in this patent anywhere about

[00:18:35] Speaker 00:
what they specifically do.

[00:18:37] Speaker 00:
So it is said in that passage that the cloud computing network is what will provision the virtual computers that will do the processing.

[00:18:44] Speaker 00:
There's actually nothing taught aside from generic components.

[00:18:49] Speaker 00:
And let's face it, cloud computing was not invented by Nextpoint.

[00:18:52] Speaker 00:
They don't claim that.

[00:18:53] Speaker 00:
It was already in use.

[00:18:55] Speaker 00:
We know that from prosecution history because they had to amend to add the smallest block limitation to secure allowance.

[00:19:03] Speaker 00:
And so what we're left with is a completely conventional, and to lawyers and judges and legal staff, well-known process for receiving, storing, and processing ESI.

[00:19:17] Speaker 00:
And the only thing that NextPoint can point to is that somehow there's something innovative in processing on a block basis.

[00:19:26] Speaker 00:
But the prior art, the Spears reference that they amended to distinguish taught

[00:19:32] Speaker 00:
processing on a 512-byte block as opposed to the smallest block according to whatever you're doing.

[00:19:40] Speaker 00:
But it's a tautology to say, well, if what you're doing is processing by page, then what you want to do is process by page.

[00:19:47] Speaker 00:
I mean, that's essentially what NetPoint disclosed and claimed and now suggests to this court that that is somehow an innovative concept that would rise to the level of, say, infish.

[00:20:00] Speaker 00:
with the self-referential tables as something that was unconventional, very different, and had advantages to it.

[00:20:08] Speaker 00:
And what's interesting here is that NextPoint doesn't even tout any technical advantage to breaking the ESI down into the smallest block.

[00:20:19] Speaker 00:
It's not in the brief, they didn't argue below, and you didn't hear that today.

[00:20:22] Speaker 00:
And the reason is that there is no advantage.

[00:20:24] Speaker 00:
So unlike

[00:20:27] Speaker 00:
the cases in which this court has found that a patent was eligible despite being drawn to software implementation.

[00:20:34] Speaker 00:
Here, there's no technical innovation.

[00:20:37] Speaker 00:
Instead, the specification literally recites a smorgasbord of all the different types of computers, networks, cloud computing networks upon which the invention could be practiced.

[00:20:48] Speaker 00:
That is exactly opposite from the Amdocs scenario.

[00:20:54] Speaker 03:
Can you just walk through what happened in the prosecution history?

[00:20:57] Speaker 00:
Yes, Your Honor.

[00:20:58] Speaker 00:
So there was a three patent obviousness rejection.

[00:21:04] Speaker 00:
And the examiner found that the claim that became issue claim one, it was actually added late after a request for continued examination.

[00:21:19] Speaker 00:
It was pending claim 28.

[00:21:23] Speaker 00:
And the examiner noted that those three references taught every element of the claim.

[00:21:30] Speaker 00:
And so the amendment was made to add the smallest block requirement because the examiner suggested this in an amendment because Spears taught breaking down the ESI into 512-byte long blocks, so fixed blocks.

[00:21:47] Speaker 00:
And so because there was this disclosure,

[00:21:52] Speaker 00:
at A61, column seven, lines 27 to 41, there was this disclosure about breaking down ESI according to what the processing was.

[00:22:04] Speaker 00:
So if you were processing by document, the smallest block would be a document.

[00:22:08] Speaker 00:
If you were processing a page, the smallest block would be a page.

[00:22:10] Speaker 00:
Again, I suggest that's tautological.

[00:22:13] Speaker 00:
But because that was a minor difference from SPHERES,

[00:22:19] Speaker 00:
the applicant agreed with the examiner, the amendment was entered, and the claims were allowed.

[00:22:26] Speaker 00:
So at no point, though, neither in the specification nor to the examiner was there any suggestion that this was some revolutionary idea or something that was unconventional.

[00:22:39] Speaker 00:
That didn't even occur because, of course, even though the patent issued in 2013, so after

[00:22:47] Speaker 00:
the Mayo decision and after Bilsky, we know that the PTO didn't really start instructing examiners what to do about Alice until after Alice.

[00:22:57] Speaker 00:
So this patent issue before that.

[00:23:01] Speaker 00:
It's interesting that the blue brief in this case devotes a page and a half to the second prong of Mayo and Alice.

[00:23:09] Speaker 00:
So that's where you would ordinarily expect there to be a lot of grist for the mill.

[00:23:14] Speaker 00:
and a lot of information from the patentee pointing out all the many places in the specification that supports their contention that despite their claims being directed to an abstract idea, there's some technical innovation or something more, as the cases have referred to.

[00:23:32] Speaker 00:
But here they devote a page and a half to it, short shrift, and there's nothing cited from the specification.

[00:23:40] Speaker 00:
And the reason is that this invention is taught

[00:23:44] Speaker 00:
is, as the Supreme Court used the language in Alice, is a wholly generic implementation on a computer.

[00:23:54] Speaker 00:
There's nothing that is different from the scenarios in content extraction.

[00:24:03] Speaker 00:
In Judge Toronto, your authored opinion in Electric Power Group in August 2016, the case from this week, Intellectual Ventures versus Capital One,

[00:24:13] Speaker 00:
All of those cases are now following a very common groove.

[00:24:17] Speaker 00:
The recitation of very conventional steps that are then implemented on a generic computer or generic network or some combination thereof.

[00:24:28] Speaker 00:
And this case is just the latest in a long line of such cases.

[00:24:32] Speaker 00:
And there's nothing to distinguish it from all that have gone before.

[00:24:37] Speaker 00:
In fact, it's remarkably similar.

[00:24:38] Speaker 00:
And if you look at even the preamble of claim one at issue here,

[00:24:44] Speaker 00:
The preamble is a method for collecting and managing trial information.

[00:24:49] Speaker 00:
So that is, I think, an illustrative place to start that this is just like content extraction where we have a patent that discloses a way to receive, process, and store information.

[00:25:04] Speaker 00:
In that case, it was checks that were being scanned and metadata from the checks, such as the routing transit number, the account number, were being

[00:25:13] Speaker 00:
scanned from the check and then stored apart from the check.

[00:25:17] Speaker 00:
This case is remarkably similar because one of the steps in claim one is to extract metadata from whatever the ESI is.

[00:25:24] Speaker 00:
So if it's a deposition, we get to know who the deponent was, when it was taken, and so on.

[00:25:30] Speaker 00:
And so the steps in claim one are completely conventional and familiar to us because they're simply, like all these other cases, processing information, cases that

[00:25:42] Speaker 00:
Now the Supreme Court started an analysis, and this court over and over have found to be abstract ideas.

[00:25:49] Speaker 00:
And so when this court turns to the second prong of the Mayo analysis test, you see that this disclosure is just like electric power group, it's just like in-ray TLI communications in which there are nothing more than generic references to computing components.

[00:26:09] Speaker 00:
And here in the 731 patent, we see

[00:26:12] Speaker 00:
Many suggestions that persons of skill and the art already know about distributed processing, and those forms can be used.

[00:26:23] Speaker 00:
And it even says, even though the claim is directed to implementation in a cloud computing network, in column one, it actually says, you can even use the invention on a single computer.

[00:26:35] Speaker 00:
You don't even need a network.

[00:26:36] Speaker 00:
So this patent is, from a technological standpoint,

[00:26:41] Speaker 00:
is completely agnostic about how it's implemented.

[00:26:45] Speaker 00:
That's very different from Amdocs.

[00:26:47] Speaker 00:
That's very different from Infish and Inray-Bascom, cases in which this court has found that there was some technological invention, something that was innovative, that rescued what might have otherwise been an abstract idea.

[00:27:06] Speaker 04:
Thank you, counsel.

[00:27:07] Speaker 04:
Mr. Toppick has a little rebuttal time.

[00:27:13] Speaker 01:
Thanks.

[00:27:15] Speaker 01:
Let me start with the bait stamping hypothetical that Council put forth.

[00:27:19] Speaker 01:
What he didn't include in that hypothetical was the notion that you would take all those pages and you would separate them out into individual pages and you would have a team of people and you would constantly be handing out pages as soon as somebody's done.

[00:27:33] Speaker 01:
You wouldn't do that.

[00:27:34] Speaker 01:
You would take a whole document and you would bait stamp the whole document.

[00:27:37] Speaker 01:
There's a difference between what's being processed

[00:27:40] Speaker 01:
and how the data is being divided in order to accomplish that.

[00:27:44] Speaker 03:
Can I just ask, can you address the use of the word comprises in this key step?

[00:27:53] Speaker 01:
I'll start by saying it's not an issue I really thought about.

[00:27:57] Speaker 01:
So are you talking about the preamble comprising the steps of?

[00:28:01] Speaker 03:
No, in the step that you identified as the key thing, the dividing step.

[00:28:06] Speaker 02:
Okay.

[00:28:06] Speaker 03:
Dividing the electronically stored information into

[00:28:10] Speaker 03:
a bunch of blocks, each of them comprises the smallest block of information to be processed at one time, depending on the type of processing.

[00:28:22] Speaker 03:
So even if the smallest block that you're going to date stamp is a page, that language would cover giving them the whole stack.

[00:28:34] Speaker 03:
Well, I would comprise the page.

[00:28:36] Speaker 01:
Right.

[00:28:36] Speaker 01:
So, so I, I read comprises is basically meant to be is, is, which I understand is a little different from how you would use that in the, in the preamble at least.

[00:28:49] Speaker 01:
And I think, I mean, that's potentially the claim construction issue of this, does comprise meant to be limited to, you know, could, could it include something?

[00:28:58] Speaker 04:
We've never argued that.

[00:29:00] Speaker 04:
at that part of the claim.

[00:29:02] Speaker 01:
It may be, but there certainly have been examples where, you know, once you read it in context, you can see that that's not what was intended and that's not how one is skilled.

[00:29:11] Speaker 03:
And this topic that I just raised was not part of this argument.

[00:29:16] Speaker 01:
Correct.

[00:29:17] Speaker 01:
Correct.

[00:29:18] Speaker 01:
There's also an argument about this notion of you could use anything, you could use any components.

[00:29:24] Speaker 01:
So part of that is not claimed.

[00:29:27] Speaker 01:
But it ignores the fact that whatever components you choose, and you could choose lots of different components, there's a specific process that's set forth as to how you use those components.

[00:29:37] Speaker 01:
And while a lot of the cases where you have found eligible subject matter look at the novelty of the components within that architecture and whether that's a novel architecture, there is no reason to distinguish here where even if the architecture is somewhat flexible and isn't novel,

[00:29:54] Speaker 01:
how you actually perform those steps is novel.

[00:29:57] Speaker 01:
And that makes sense because otherwise, I mean, you have software that runs on general purpose computers all the time.

[00:30:01] Speaker 01:
And just because it runs on a general purpose computer doesn't mean that the steps themselves can't be novel.

[00:30:08] Speaker 01:
I'm out of time.

[00:30:08] Speaker 01:
I had one quick point I would make, but I'll stop.

[00:30:11] Speaker 01:
Make you a quick point.

[00:30:13] Speaker 01:
There was a phrase in the Affinity Labs case that came out since the briefing that when talking about DDR said there's

[00:30:22] Speaker 01:
There's a difference between doing something to a web page and simply doing something on a web page.

[00:30:28] Speaker 01:
And I think that exactly reads on what's going on here.

[00:30:30] Speaker 01:
The claims are directed to how that software, how the system works.

[00:30:36] Speaker 01:
It's not simply using the system to accomplish some economic goal.

[00:30:40] Speaker 01:
Thank you.

[00:30:41] Speaker 04:
Thank you.

[00:30:41] Speaker 04:
You both have helped bring this case out of the cloud and down to work.

[00:30:46] Speaker 04:
I'll take it under advisement.

[00:30:48] Speaker 00:
All rise.