[00:00:00] Speaker 02:
Our fourth case is number 17-1041 Nice Systems Limited versus ClickFox Inc.

[00:00:17] Speaker 02:
Mr. Lanterre.

[00:00:18] Speaker 00:
Yes, Your Honor, thank you and may it please the Court.

[00:00:22] Speaker 00:
Greg Lanterre on behalf of the Appellant's Nice.

[00:00:25] Speaker 00:
The district court's order dismissing the 955 patents claims is invalid under section 101 on a motion to dismiss should be reversed.

[00:00:34] Speaker 00:
The 955 patent claims a specific technological improvement to a difficult technological challenge.

[00:00:41] Speaker 00:
That challenge is tracking and making meaning out of a user's interactions with the internet.

[00:00:47] Speaker 00:
There are a number of pre-existing solutions that have sought to address that problem

[00:00:52] Speaker 00:
But they have done so in different ways.

[00:00:54] Speaker 04:
In the blue brief, you pulled the district court for finding that the claims are directed to the abstract idea of cross-channel customer service for the benefit of the audience gathering customer information from one communication channel and using it to engage the customer via another communications channel.

[00:01:18] Speaker 04:
But the background of the invention focuses entirely

[00:01:22] Speaker 04:
on prior problems facing customer call centers and online support forms.

[00:01:28] Speaker 04:
And the summary of the invention basically does the same thing.

[00:01:32] Speaker 04:
Why is the specification, including background and summary of the invention, so focused on cross-channel customer service if the claims aren't directed to it?

[00:01:44] Speaker 00:
Your Honor, you are certainly correct that the two paragraphs that are in the background of the invention talk about the need for agents to call center to receive information about what the customer who's calling has done or is doing on the Internet.

[00:01:59] Speaker 00:
But I would suggest that that does not suggest that that was the problem in terms of what the invention seeks to solve.

[00:02:08] Speaker 00:
The remainder of the specification, including I would submit the summary, Your Honor,

[00:02:12] Speaker 00:
prescribes a specific series of steps that allows the company to track and understand and then make a recommendation.

[00:02:23] Speaker 04:
In the blueprint you say, the claims are directed to methods and systems for monitoring a user's interaction with internet-based programs or documents, right?

[00:02:33] Speaker 00:
That's correct, Your Honor.

[00:02:34] Speaker 00:
Doesn't that seem sort of abstract in and of itself?

[00:02:37] Speaker 00:
Your Honor, we submit that that's not an abstract concept because this Court has generally found abstract concepts to be one of a mathematical equation, just a pure data processing, or something that's a long-standing practice that predates computers and the internet.

[00:02:57] Speaker 00:
Here, because the preambles of the claims specifically say this is about monitoring a user's interactions with internet-based programs and documents, and then the claim limitations,

[00:03:08] Speaker 00:
prescribe specific steps that are specifically directed to that technological problem, we would say that that's not an abstract concept here, any more than, for example, the concept of synchronizing.

[00:03:21] Speaker 04:
Is the concept of customer service or filling in surveys an abstract idea?

[00:03:28] Speaker 00:
The concept of customer service, I would say, is an abstract idea, Your Honor.

[00:03:31] Speaker 00:
Under the theory that customer service, of course, long predates the advent of computers or the internet.

[00:03:38] Speaker 00:
So I do agree with that.

[00:03:40] Speaker 00:
However, the claim limitations of this patent, the specific limitations, are directed not to that final step of transmitting the information that you generate, the recommendation to the call center agent.

[00:03:54] Speaker 00:
We acknowledge that that's not inventive to move information and provide it to a call center agent.

[00:04:01] Speaker 00:
What is inventive here and what the focus of these claims is on is how do you first

[00:04:07] Speaker 00:
selectively extract information from internet traffic, internet server traffic, and then the performance of a comparison between a user's internet interaction session and a modeled session.

[00:04:22] Speaker 00:
And the record is clear.

[00:04:22] Speaker 02:
There was no known before this patent to collect information about internet usage, right?

[00:04:31] Speaker 02:
I'm sorry, Your Honor, I didn't hear the first half of your question.

[00:04:33] Speaker 02:
It was well known before this patent to collect information about a user's internet navigation history.

[00:04:43] Speaker 00:
It sure was, Your Honor, but it was done in a very different way.

[00:04:46] Speaker 00:
And the difference is this.

[00:04:49] Speaker 00:
In the prior art systems, we can take Costigan as an example.

[00:04:53] Speaker 00:
That's one of the ones that was discussed during the prosecution of the patent at Lane.

[00:04:59] Speaker 00:
what would happen is there would be a program that would go to the user's computer and if that user stayed on the web page for more than three minutes a human would just start watching.

[00:05:09] Speaker 02:
I'm not asking you to distinguish it over the prior art.

[00:05:11] Speaker 02:
I think what I'm interested in is what is unconventional within the scope of these claims because I don't see

[00:05:23] Speaker 02:
that the claims, I mean I understand the model, the comparison of the model idea, we'll put that aside for a moment, but in terms of the collection of the information, what is different about these claims compared to what was well established before in terms of collecting and analyzing information?

[00:05:46] Speaker 00:
Let me point to two aspects to answer your question.

[00:05:50] Speaker 00:
And we can turn to page 19 of the blue brief where the claims are set forth, if that's helpful.

[00:05:57] Speaker 04:
That's where I came up with asking you the question about customer service and filling in surveys.

[00:06:03] Speaker 04:
That's a direct quote from page 18 and 19.

[00:06:07] Speaker 00:
Yes, Your Honor, it is.

[00:06:09] Speaker 00:
In terms of addressing Judge Dyke's question,

[00:06:12] Speaker 00:
First, please look at the limitation extracting content from internet server traffic according to predefined rules.

[00:06:19] Speaker 00:
That is unconventional.

[00:06:21] Speaker 00:
And it's also counterintuitive.

[00:06:23] Speaker 00:
What's unconventional about it?

[00:06:25] Speaker 00:
It's unconventional because in prior systems, Your Honor, you would take all of the information you could from the user's internet interaction session, and after the fact, you would determine what pieces of information have significance or relevance to what I should recommend

[00:06:41] Speaker 00:
for that customer.

[00:06:58] Speaker 00:
in which there was an extraction of content based on predefined rules that are determined in advance, so that you're only taking certain information, even if other information that might be shared by the user during that session might seem very relevant.

[00:07:14] Speaker 00:
You're excluding that because you're only taking information from predefined rules.

[00:07:19] Speaker 04:
Are predefined rules web analyzers or modeled sessions, which seem to me to be the only arguably technological components,

[00:07:27] Speaker 04:
Are they new or non-generic?

[00:07:31] Speaker 00:
The use of predefined rules to extract content is new and non-generic.

[00:07:35] Speaker 00:
And I was going to get to the second step that I was hoping to address, which is the automatic comparison.

[00:07:41] Speaker 00:
BioWeb Analyzer of one or more of the users' internet interaction sessions to one or more models.

[00:07:46] Speaker 00:
How is it new or non-generic?

[00:07:49] Speaker 00:
It's new and non-generic because in all of the prior art systems, Your Honor,

[00:07:53] Speaker 00:
What would happen is a human being would have to exercise judgment.

[00:07:57] Speaker 00:
You would receive information about the... There were no predefined rules?

[00:08:03] Speaker 00:
There were no predefined... There are two different claim limitations we need to address separately here, Your Honor.

[00:08:08] Speaker 00:
For extracting content, there were no systems that extracted content using predefined rules.

[00:08:13] Speaker 00:
For the generation of a recommendation, there were predefined rules, but it's a different thing.

[00:08:19] Speaker 00:
So the generation of the recommendation step would be

[00:08:23] Speaker 00:
you take all of the information that has been received from the website and then there was one system, this is the Vincent system that's at issue in the prosecution, where there could be a human being who says, I think there's probably a correlation between people who view fishing rods and people who would like to purchase fishing lures.

[00:08:43] Speaker 00:
And so they might set a rule that says, okay, if we receive information that says this person is viewing fishing rods and they've been on the site for

[00:08:52] Speaker 00:
a little bit of time looking at that, then the call center agent should recommend that the person also look at phishing rules.

[00:08:59] Speaker 00:
This is fundamentally different because this technology performs a comparison between the user's interaction session and a model session, so that even if there's no human perceptible pattern that can be extracted from what the user has done, because you're performing a comparison using machine learning derived modeled sessions,

[00:09:22] Speaker 00:
and generating a recommendation based on that match.

[00:09:25] Speaker 00:
Even if a human could never perceive that there's a pattern between somebody who spends three seconds per click on the following web pages and then goes back to one web page for a second but then jumps forward to some other web page, the modeled sessions, because they're machine learning derived big data type constructs, those modeled sessions when you perform the comparison would tell you, next thing you should do is recommend

[00:09:52] Speaker 00:
that that person go look at the fishing lures.

[00:09:54] Speaker 00:
Because we have ideal session histories aggregated over time that tell us that the closest data match to what this user, who you're tracking now, is doing, based on your predefined rules, is this other session where the person ultimately purchased fishing lures.

[00:10:13] Speaker 00:
So it's technologically very different.

[00:10:15] Speaker 00:
It's also quite narrow in the scheme of the different ways that

[00:10:21] Speaker 00:
various companies had previously tried to, and effectively done in some context, track or monitor a user's interactions with internet-based programs and documents.

[00:10:33] Speaker 00:
And I think that, Your Honor, one thing we haven't gotten to here is step two specifically of the ELIS analysis, and I did want to address that because I think in this case it raises really an issue of first impression and one that we think is very significant, which is

[00:10:49] Speaker 00:
There's no argument being made by ClickFox in its briefing that the specification of the 955 patent itself indicates that the technological limitations of the claim were conventional and were well known.

[00:11:06] Speaker 00:
What they are doing is going back to what the patent examiner was looking at during prosecution.

[00:11:13] Speaker 00:
and saying, well, if we put all three of these references together, we can find it.

[00:11:17] Speaker 02:
There's nothing in the specification that suggests that these steps didn't use conventional technology, right?

[00:11:25] Speaker 00:
The specification, Your Honor, does not contain a comparison between prior art methods and the claimed method in that sense.

[00:11:34] Speaker 00:
And I would submit that it certainly would be helpful if it did for determining these things.

[00:11:40] Speaker 00:
But this is a motion to dismiss.

[00:11:42] Speaker 00:
There's no requirement in Section 112 that you include that type of comparison in your specification.

[00:11:47] Speaker 00:
And here, we do have a record in the prosecution history where it's very clear that the applicant was disputing the conventional nature of the extracting limitation and of the comparison limitation, among others.

[00:12:03] Speaker 00:
And it's also clear that the patent examiner, of course, ultimately issued the claim after considering the claim as amended.

[00:12:11] Speaker 00:
against the prior references that are now being relied upon to show that all this technology is conventional.

[00:12:17] Speaker 00:
What the district court did is not point to the specification, but rather sort of look at the first word or the first part of the limitation without really getting into what the specific steps are that are required, the specific technique.

[00:12:32] Speaker 00:
And then it made just a general finding that nothing's new here.

[00:12:36] Speaker 00:
But this is a motion to dismiss, and we don't have a record

[00:12:39] Speaker 03:
where the district court could have determined... Just looking at the 955 patent, is there anything there that shows that the claims are rooted in computer technology?

[00:12:53] Speaker 00:
Your question is whether there's anything in the 955 patent that shows the claims are rooted in computer technology?

[00:12:58] Speaker 00:
Yes, of course there are.

[00:12:59] Speaker 00:
There are 65 columns of... Well, there's computer language, but I'm

[00:13:04] Speaker 03:
The claims themselves, are they rooted in computer technology?

[00:13:08] Speaker 03:
Are we talking about it?

[00:13:09] Speaker 03:
You're step two of the ALICE analysis.

[00:13:12] Speaker 03:
So are you, can you show that there's an improvement in computer technology of some kind?

[00:13:19] Speaker 03:
Is new technology created?

[00:13:22] Speaker 00:
The answer is yes, Your Honor.

[00:13:26] Speaker 00:
And we can just focus on the claim even to show that.

[00:13:30] Speaker 00:
Because this is a specific method, as the preamble say, it's a specific method for monitoring a user's interactions with internet-based programs or documents.

[00:13:39] Speaker 02:
But I think the question is whether the patent shows how that's done in a new way that changes computer functionality.

[00:13:50] Speaker 02:
It doesn't do that, does it?

[00:13:53] Speaker 00:
In terms of a specific discussion in the specification, Your Honor, of

[00:13:56] Speaker 00:
Here's how the prior art did it and here's how we're going to do it.

[00:13:59] Speaker 00:
The patent does not contain that discussion, nor is it required to contain that discussion under Section 112.

[00:14:06] Speaker 00:
But I do think... You're asking about Alice Step 2.

[00:14:10] Speaker 00:
That's correct, Your Honor, but I believe, Your Honor, even at Alice Step 2, if on a motion to dismiss the district court is going to make an Alice Step 2... Well, you can look at the patent and see whether it discloses an inventive concept at Step 2, can't you?

[00:14:28] Speaker 00:
I think, Your Honor, sometimes there are many patents where you can look at the patent and the patent will tell you this is not disclosing an inventive concept because, for example, there might be a figure that says this is the prior art and you can see that all of the components are arranged in the same way.

[00:14:44] Speaker 00:
This isn't that case and there's no contention in this.

[00:14:47] Speaker 00:
This is the case where the specification doesn't contain a specific discussion one way or the other.

[00:14:54] Speaker 00:
It describes in great detail the performance of each of the claim steps, but it doesn't say, by the way, this is how Prior Art Systems works and this is how we're different.

[00:15:04] Speaker 00:
But we do have the prosecution history where the applicant was very clear that the Prior Art Systems did not function the same way and that these claim elements were unconventional at that time.

[00:15:19] Speaker 00:
used up my time, Your Honor.

[00:15:21] Speaker 00:
I think answering some of your questions I would appreciate a little rebuttal if possible.

[00:15:24] Speaker 00:
We'll give you two minutes for rebuttal.

[00:15:25] Speaker 02:
Thank you.

[00:15:31] Speaker 02:
Mr. Salyers.

[00:15:40] Speaker 01:
Your Honors, may it please the Court, I'm Doug Salyers here on behalf of ClickFox.

[00:15:45] Speaker 01:
This court's 101 jurisprudence has become a common law analysis, as you well know.

[00:15:50] Speaker 01:
And basically, we looked at prior cases to determine whether present patents are invalid.

[00:15:55] Speaker 01:
This case squarely fits within the Alice line of cases about a fundamental business practice implemented on a generic computer using generic data gathering steps.

[00:16:06] Speaker 01:
The claims of the case don't fit any of the technological improvement cases that your honors have found are

[00:16:14] Speaker 01:
outside the bounds of the abstract idea because they're not focused on technological improvements.

[00:16:21] Speaker 01:
A simple reading of claim one confirms this.

[00:16:24] Speaker 01:
Claim one represents, as your honors have already noted, cross-channel customer service in which you gather information from the internet and provide that information to a call center agent.

[00:16:37] Speaker 01:
That concept the court below found readily available in the business world

[00:16:44] Speaker 01:
And he came up with a car dealer analogy that you basically, we used a shoe clerk, he used the car dealer.

[00:16:48] Speaker 01:
But it's the same thing.

[00:16:50] Speaker 01:
Someone in the sales mode, seeing what someone does, making a mental note.

[00:16:55] Speaker 01:
When the person calls back, you try and upsell them to something else.

[00:16:58] Speaker 01:
That would read on the language of these claims.

[00:17:02] Speaker 01:
And so this content, to try and get around the abstract idea, what I heard from opposing counsel is, well, the preamble recites the internet.

[00:17:14] Speaker 01:
this court has in cyber source lending tree ultra ultra markup all multiple cases found putting something a business practice on the internet doesn't qualify or doesn't get you out of the abstract idea the other uh... i'm not going to tell you how to argue your case but i think your opposing counsel more or less said he rises or falls on step one

[00:17:41] Speaker 01:
might as well just stay there, unless you think otherwise.

[00:17:45] Speaker 01:
No, I believe step one is enough, although you do still have to do a step two analysis, Your Honor, which we understand.

[00:17:51] Speaker 01:
In terms of why step one is abstract, every one of the performed steps can be done by a human.

[00:18:00] Speaker 01:
That's the first point that I think indicates the abstractness.

[00:18:04] Speaker 01:
You can look at... Can it be done by a human?

[00:18:06] Speaker 01:
I don't think so.

[00:18:08] Speaker 01:
Your Honor, you could

[00:18:10] Speaker 01:
Extract content from the internet, which is basically what he admitted was in the prior art in the Koskin reference.

[00:18:16] Speaker 01:
Someone could sit and look at internet traffic and extract content.

[00:18:20] Speaker 02:
Well, you've got to use a computer to check the internet traffic.

[00:18:24] Speaker 02:
You can't do it without it.

[00:18:26] Speaker 02:
I'm sorry, you have to... You can't check internet traffic without using a computer.

[00:18:31] Speaker 01:
That's true.

[00:18:32] Speaker 01:
A human on a computer can do the activity.

[00:18:35] Speaker 01:
And the other thing to think about is the broadness of the claim terms used.

[00:18:40] Speaker 01:
Content.

[00:18:41] Speaker 01:
Content is not specific content.

[00:18:43] Speaker 01:
Content is any content.

[00:18:44] Speaker 01:
Content can be all content.

[00:18:46] Speaker 01:
It's not unique to the particular website.

[00:18:49] Speaker 01:
It's just taking something or everything off of the internet according to predefined rules.

[00:18:55] Speaker 01:
Also another abstract concept.

[00:18:58] Speaker 01:
Predefined rules are no rules.

[00:19:00] Speaker 01:
You just have a rule in advance, but it doesn't tell you what they are.

[00:19:03] Speaker 04:
But to use the used car analogy, someone who goes to I'm looking for a new car dot com is internet content.

[00:19:11] Speaker 01:
Yes.

[00:19:13] Speaker 01:
Storing and indexing.

[00:19:15] Speaker 01:
A human can do that as well, your honor.

[00:19:17] Speaker 01:
It's writing down on a note card what you see and then index it, put it in Mary Smith's under her name.

[00:19:26] Speaker 01:
Then automatically comparing the data

[00:19:30] Speaker 01:
to something else.

[00:19:31] Speaker 01:
Now, they do have a web analyzer using a processor in this element.

[00:19:36] Speaker 01:
However, web analyzer is an amorphous concept, and certainly processor is a generic computer function.

[00:19:42] Speaker 01:
They don't proffer a construction for web analyzers being something other than something that analyzes the web.

[00:19:48] Speaker 01:
That's an abstract concept.

[00:19:50] Speaker 01:
It's not a computer technological improvement.

[00:19:54] Speaker 04:
And then finally, proposing council argues machine learning,

[00:19:59] Speaker 04:
stuff that you would find in self-aware computers, so to speak.

[00:20:11] Speaker 04:
But I didn't see it in there.

[00:20:12] Speaker 01:
It's not in the spec, your honor.

[00:20:13] Speaker 01:
And I think the only line in the spec that's important is in column five where the word modeled sessions is used.

[00:20:23] Speaker 01:
And that's what they've claimed.

[00:20:25] Speaker 01:
They've claimed

[00:20:26] Speaker 01:
a word, a two-word phrase, modeled session.

[00:20:28] Speaker 01:
And the modeled session in the patent is described as simply being the computer, it's generated in a computer, my glasses, sorry.

[00:20:46] Speaker 01:
It's that what is generated in a computer training environment by a computer programmer or trainer.

[00:20:53] Speaker 01:
That is the essence of abstractness.

[00:20:56] Speaker 01:
You have a human doing the activity.

[00:20:58] Speaker 01:
The modeled session is not some artificial intelligence.

[00:21:01] Speaker 01:
It's not some fancy smancy program.

[00:21:05] Speaker 01:
It's not software.

[00:21:07] Speaker 01:
The modeled session is defined in the spec as generated in a computer training environment by a computer programmer or a trainer.

[00:21:19] Speaker 01:
So that is no different than the car salesman.

[00:21:23] Speaker 01:
who is watching customers come into the car dealership throughout the day, and he notices what various prior customers liked.

[00:21:32] Speaker 04:
I would say it's more like the supervisor watching and calling his trainee salesperson and saying, hey, you ought to be aware that this person looked at four SUVs while they were walking around the lot when you talk to them.

[00:21:52] Speaker 04:
Push SUVs.

[00:21:53] Speaker 01:
Yeah, push the SUVs.

[00:21:54] Speaker 01:
Yes, exactly, Your Honor.

[00:21:56] Speaker 01:
And then the final step of providing the recommendation that fits the car dealer analogy to a T. You're basically just taking your note card out and giving it to the phone agent when they call in for a follow-up visit or something.

[00:22:12] Speaker 01:
So ultimately, when you think about abstract ideas, this Court has routinely looked to the human analogy.

[00:22:19] Speaker 01:
Can this be performed by a human?

[00:22:22] Speaker 01:
If it is,

[00:22:23] Speaker 01:
then it's difficult to get around the abstract idea concept.

[00:22:28] Speaker 01:
Council made another point about that these claims are, he was asked whether these claims are rooted in computer technology.

[00:22:37] Speaker 01:
If you read the spec, the spec has the first column which describes the problem to be solved.

[00:22:44] Speaker 01:
The problem to be solved was call center agents don't have access to internet.

[00:22:50] Speaker 01:
use from customers when they call in.

[00:22:52] Speaker 01:
That's the problem that they identify.

[00:22:56] Speaker 01:
That problem is an abstract thing that needs to be solved.

[00:23:02] Speaker 01:
And they solved it by saying, well, let's give internet information to the call center when they receive a call.

[00:23:08] Speaker 01:
So there's no technological improvements here, particularly when you note that this patent was filed in 2011.

[00:23:15] Speaker 01:
And to make the claim that in 2011, people don't know how to

[00:23:20] Speaker 01:
track data on the Internet is a bit absurd.

[00:23:25] Speaker 01:
I mean, the Internet has been tracking data for a long time.

[00:23:29] Speaker 02:
They admit that tracking data on the Internet was well known.

[00:23:32] Speaker 01:
Correct.

[00:23:34] Speaker 01:
So what is new about what they're doing?

[00:23:36] Speaker 01:
Where in the claim language is there anything new when you have claim language that talks about extracting, associating, storing and indexing?

[00:23:48] Speaker 01:
Those are classic

[00:23:50] Speaker 01:
computer terms, and certainly classic terms applied to the internet.

[00:23:54] Speaker 01:
It's what Google does every day.

[00:23:55] Speaker 01:
They're storing and extracting and keeping up with our travels through the internet.

[00:24:00] Speaker 01:
Automatically comparing, that's again a very broad concept that's not a technologically light bulb moment.

[00:24:09] Speaker 01:
Comparing one set of data to another set of data is what computers have done since they were first invented.

[00:24:16] Speaker 01:
And then providing a recommendation.

[00:24:18] Speaker 01:
I mean, think about that term.

[00:24:20] Speaker 01:
when you're trying to decide whether it's abstract or not.

[00:24:23] Speaker 01:
These are subjective things that people have done forever, recommending various aspects of the sales process, for instance.

[00:24:33] Speaker 01:
And the recommendation is being generated by a human.

[00:24:38] Speaker 01:
So again, we can't get outside the bounds of the abstract concept.

[00:24:43] Speaker 01:
I would spend a couple of moments on the inventive concept issue, because I think it mirrors

[00:24:48] Speaker 01:
the abstract idea.

[00:24:50] Speaker 01:
When you go to inventive concept, you're trying to look for what's typically the functional language that's in the claim.

[00:24:59] Speaker 01:
Does it go beyond function?

[00:25:01] Speaker 01:
And this court has multiple times found that functional language without the how, without the details of how the function is performed, and end without the means, are types of claims that don't provide inventive features.

[00:25:17] Speaker 01:
And this claim is

[00:25:18] Speaker 01:
is rife with functionality.

[00:25:21] Speaker 01:
That's all that it's claiming.

[00:25:23] Speaker 01:
Here's a function.

[00:25:24] Speaker 01:
Extract.

[00:25:25] Speaker 01:
How do you extract?

[00:25:27] Speaker 01:
Predefined rule.

[00:25:28] Speaker 01:
That doesn't tell you anything.

[00:25:30] Speaker 01:
How do you store an index?

[00:25:31] Speaker 01:
You just store it by the name of the user.

[00:25:34] Speaker 01:
That doesn't tell you anything technological about how you do it.

[00:25:38] Speaker 01:
The bulk of the argument made in the blue brief and the reply brief here is citing things that weren't in the spec and that weren't in the claims.

[00:25:46] Speaker 01:
That's not the way you interpret

[00:25:48] Speaker 01:
in the 101 world what the claims are directed at, nor what their inventive concept is.

[00:25:54] Speaker 01:
And at the end of the day, you're to go back to the claim language itself to determine whether there is, in fact, anything inventive that's occurring in these patents.

[00:26:05] Speaker 01:
The ordered combination argument was made below.

[00:26:09] Speaker 01:
The judge, the point I would like to make there is there was no ordered combination argument made to the judge below.

[00:26:18] Speaker 01:
That's an afterthought raised for the first time on appeal.

[00:26:22] Speaker 01:
There's other aspects of this appeal that we've objected to because they're relying on evidence, the underlying patents that were not cited in the case below.

[00:26:31] Speaker 01:
We think you could, in essence, decide the case on that point.

[00:26:35] Speaker 01:
You could find that the evidence they're presenting in this body and the arguments they're presenting in this body weren't raised below, were waived, and therefore they've really got no arguments to make.

[00:26:46] Speaker 01:
The last point I'd like to make is about the recitation of the prior art that occurred in opposing counsel's opening argument.

[00:26:57] Speaker 01:
What they've done is trying to conflate the two or three prior art references that were talked about in the file history and then generically describe that as the prior art.

[00:27:08] Speaker 01:
Say, well, the prior art couldn't figure something out because the Costigan reference couldn't figure something out.

[00:27:13] Speaker 01:
That's not the way

[00:27:15] Speaker 01:
the analysis proceeds.

[00:27:17] Speaker 01:
The examiner actually, when you read the prosecution history, found all the elements in the prior art save one, the modeled session.

[00:27:25] Speaker 01:
So each party relied on that, on the prosecution history to inform the analysis on the 101.

[00:27:32] Speaker 01:
But there was no dispute, and indeed counsel has conceded that tracking stuff on the internet was a well-known business practice in the prior art, and that's what the prosecution history disclosed.

[00:27:45] Speaker 01:
So this patent didn't overcome some technological challenge.

[00:27:49] Speaker 01:
It's not directed at some technological problem.

[00:27:54] Speaker 01:
It's simply broadly claiming an abstract idea.

[00:27:58] Speaker 01:
And on that basis, Your Honor, we think the district court should be affirmed.

[00:28:03] Speaker 01:
OK.

[00:28:03] Speaker 01:
Thank you, Your Honor.

[00:28:03] Speaker 01:
Thank you.

[00:28:06] Speaker 00:
Mr. Lanthier, you've got two minutes.

[00:28:09] Speaker 00:
Thank you, Your Honor.

[00:28:10] Speaker 00:
I'd like to make three points.

[00:28:14] Speaker 00:
Judge Wallach, I don't know what I said during the argument.

[00:28:18] Speaker 00:
That's what you didn't say.

[00:28:18] Speaker 00:
That made you think that we were relying on step one.

[00:28:21] Speaker 00:
That's not the case.

[00:28:22] Speaker 04:
When you were asked about step two, I didn't hear anything.

[00:28:26] Speaker 00:
We've said in our brief, and I'll say again now, that the closest analogy to this case is Bascom.

[00:28:33] Speaker 00:
It's a step two case where the court said, maybe step one's a close call.

[00:28:38] Speaker 00:
But when you look, this is a patent that should be... You agree that step one's a close call here?

[00:28:43] Speaker 00:
I think it's not a close call if the district court got it wrong.

[00:28:46] Speaker 00:
These claims aren't about cross-channel customer service.

[00:28:49] Speaker 00:
I think the question that was raised by Judge Wallach, well, is monitoring a user's interactions on the Internet.

[00:28:54] Speaker 02:
He said it was like Bascom, which was a close call.

[00:28:56] Speaker 00:
That is a close call.

[00:28:57] Speaker 00:
That's why I say, Your Honor, I think that this case, if you're looking at one case, I think Bascom is the most important one.

[00:29:03] Speaker 00:
And the reason for that is, just like the claim here, the claim there prescribed a means, not the ends.

[00:29:10] Speaker 00:
This claim

[00:29:11] Speaker 00:
prescribes a specific means for monitoring users' interactions on the internet.

[00:29:16] Speaker 03:
And there's no debate here, because the examiner found it, and they don't contend otherwise, that at least this step... So when you say that, that the claims are directed towards a means, the only thing I see in the claims that in my view possibly fit that is predefined rules.

[00:29:38] Speaker 03:
But if they're predefined and they're not in the patent,

[00:29:41] Speaker 03:
They're not in the written disclosure.

[00:29:42] Speaker 03:
We don't know what those rules are.

[00:29:44] Speaker 00:
Your Honor, to make no mistake about this, the specification does provide examples of the predefined rules, including things such as how much time is spent between clicks, what products did the customer view.

[00:29:58] Speaker 03:
But those don't show how it changes the content or how it extracts the content.

[00:30:07] Speaker 00:
In your area, I think what happens during the argument made by ClickFox is if you take just the first word of each claim element, then of course you can make anything sound like it's old.

[00:30:19] Speaker 00:
But when the court sits back and reads the actual limitations here, you will see that they prescribe specific means, and those specific means are what the invention is.

[00:30:31] Speaker 00:
They are what makes it unconventional.

[00:30:33] Speaker 00:
The second point, Your Honor, is I just want to clear up one small thing about the computer training environment.

[00:30:40] Speaker 00:
That's an environment for training computers, not for people being trained to use computers.

[00:30:45] Speaker 00:
So we dispute in the district court didn't find that the modeled sessions would just be something that a human being creates.

[00:30:53] Speaker 00:
That's not correct.

[00:30:54] Speaker 00:
And finally, on the car dealership analogy, how this claim works is the antithesis of how the car dealer approaches his or her job.

[00:31:03] Speaker 00:
What the car dealer does is customer walks into the showroom, they have a conversation, car dealer takes in it all, goes back to the office and says, what about that interaction is significant?

[00:31:16] Speaker 00:
This claim works exactly the opposite way.

[00:31:18] Speaker 00:
It says before anything starts, before we even know if a customer is coming today,

[00:31:22] Speaker 00:
let's decide on two or three specific pieces of information we're going to extract to the exclusion of everything else.