[00:00:41] Speaker 00:
I'm here on behalf of Open Parking whose patents were filed in September of 1999 and described enable and claim specific narrowly drawn and unconventional technological improvements over the prior part of computerized parking systems at that time.

[00:01:03] Speaker 00:
The invention we're talking about today is a real-time open parking mobile app

[00:01:08] Speaker 00:
that combines an unconventional and non-generic wireless communication device and a new unconventional and non-generic and specific software application for receiving parking data over the internet, rendering a real-time presentation of that parking data into one or more available parking lots indicating their changing occupancy status based upon the presence or absence of

[00:01:36] Speaker 00:
parking, vacant parking spaces on a mobile device.

[00:01:40] Speaker 00:
It is a substantial improvement over prior art computer-based parking systems and it solved a technological problem.

[00:01:50] Speaker 00:
The problem was how to send real-time parking lot vacancy data to commuters before they got to the parking lot, before they actually had to drive to the parking lot.

[00:02:02] Speaker 04:
How does claim one solve that problem?

[00:02:04] Speaker 04:
How does claim one demonstrate a huge technological advance on how to send data to commuters at the parking lot?

[00:02:13] Speaker 04:
Because that's what you just said.

[00:02:14] Speaker 04:
So what limitation in claim one demonstrates to me how that huge technological innovation is achieved?

[00:02:21] Speaker 00:
It's the software application for receiving parking data which is then transmitted over the internet wireless communications to the device

[00:02:31] Speaker 04:
that is presumably being... But this just covers a software application, not a particular software application.

[00:02:36] Speaker 00:
No, it is a particular software application, Your Honor, that we tried to present to Judge Hornak the definition of an application.

[00:02:45] Speaker 00:
It is a piece of a program that does a specific job.

[00:02:49] Speaker 04:
So are you saying it's limited to a specific program, which means if somebody else writes a program that uses different code or maybe even written in a different language, it wouldn't infringe?

[00:02:58] Speaker 00:
No, I don't say that it would be written in different code.

[00:03:01] Speaker 00:
I think it would have to do something different that doesn't do what we do.

[00:03:07] Speaker 03:
I guess you're saying this is a unique application because it's communicating parking lot data as opposed to whether there are open tables at a restaurant or

[00:03:18] Speaker 03:
What the weather is like down the street, or how much candy is still available at the 7-Eleven.

[00:03:26] Speaker 03:
I mean, those would be all different software applications.

[00:03:30] Speaker 00:
Well, they might be, Your Honor, but we don't know what was ubiquitous, generic at the time.

[00:03:37] Speaker 00:
We are not applying, nor do we represent that we are applying technology, this new technology, to existing

[00:03:46] Speaker 00:
existing long-standing business practices just to make it apply to the parking lot circumstance.

[00:03:54] Speaker 00:
We don't think that this kind of application existed in 1999 for parking or for anything else.

[00:04:03] Speaker 00:
At least there's not been any evidence of it.

[00:04:06] Speaker 00:
So we're not saying that.

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We believe this to have been new.

[00:04:11] Speaker 00:
technology that existed at the time because wireless devices in 1999 were new technology and no one had been using them and certainly no one had used them.

[00:04:22] Speaker 03:
I guess to follow up what if there in 1999 some other inventor had filed a patent application for a software app to tell you about the availability of tables at various restaurants

[00:04:41] Speaker 03:
in the downtown Washington DC area.

[00:04:43] Speaker 00:
Would that have been prior to our app, a priority date prior to ours?

[00:04:47] Speaker 03:
I'm just saying it's the same time.

[00:04:49] Speaker 03:
And now we're only talking about eligibility.

[00:04:52] Speaker 03:
We're not talking about anticipation or obviousness.

[00:04:56] Speaker 03:
But the claim is basically the same.

[00:04:58] Speaker 03:
We have a system, and we have a server, and we have an app, and we have a handheld wireless device.

[00:05:06] Speaker 03:
And there's a communication of,

[00:05:08] Speaker 03:
information in real time as to whether there are tables at my favorite Chinese restaurants in downtown Washington DC.

[00:05:19] Speaker 03:
Would that be patent eligible?

[00:05:22] Speaker 00:
I don't know.

[00:05:24] Speaker 00:
I think if it was new, it's possible, but I don't believe that we can make that decision now.

[00:05:31] Speaker 00:
We don't know whether what they did was new or how they did it.

[00:05:34] Speaker 00:
We have a new piece of software, in our case, that was never written before, and that does something to this piece of... There's no piece of software disclosed in this pattern.

[00:05:43] Speaker 04:
There's nothing but functional claiming and a few flow charts that literally have three elements in them.

[00:05:47] Speaker 04:
Communicate, send, receive.

[00:05:50] Speaker 04:
Your honor, the...

[00:06:02] Speaker 00:
this patent was approved by the Patent Office and considered enabled I think at the time.

[00:06:06] Speaker 04:
In a time long ago when the law was different and you're stuck with the present state of the law and under the present state of the law I don't see how these claims are distinguishable from I could probably name twenty other cases all of which by the way many of those patents were filed in the nineties when it was even more clear you could get software patents than now.

[00:06:25] Speaker 00:
Well we're not asking for a software patent we're asking for a

[00:06:28] Speaker 00:
a system that combines two different pieces of new technology.

[00:06:36] Speaker 00:
A communication device that did not exist before that was not well understood, not well known.

[00:06:42] Speaker 04:
A communication device?

[00:06:43] Speaker 04:
You just say a wireless communication device and in the patent there is no specificity added to that.

[00:06:47] Speaker 00:
The wireless communication device you're running in our patent specification

[00:06:52] Speaker 00:
is identified as a handheld or smartphone.

[00:07:06] Speaker 00:
operates in conjunction with the new software that basically tells this new piece of computer what to do with regard to creating, modifying data that comes into it, modifies that data into a

[00:07:27] Speaker 02:
map or some other visual changing tool and tells the driver... Makes it much more efficient than if you had somebody on site watching the parking lot and counting the empty spaces and then calling on the telephone and telling people.

[00:07:47] Speaker 00:
That was the old

[00:07:48] Speaker 00:
That was the old way to do it.

[00:07:50] Speaker 00:
That may have been the old business practice.

[00:07:52] Speaker 00:
That was not the business practice that we were using here.

[00:07:57] Speaker 00:
We're not creating a patent that deals with old technology and just adding a computer to it, an old business practice.

[00:08:08] Speaker 00:
this was never done before it is much more efficient.

[00:08:10] Speaker 04:
Every single one of these cases is a new business method.

[00:08:14] Speaker 04:
New business method, which is what you have here.

[00:08:16] Speaker 04:
And every one of these cases fail.

[00:08:18] Speaker 04:
Look, nobody fought against Alice more than me.

[00:08:20] Speaker 04:
I got umpteen decisions fighting against all of that and I lost.

[00:08:24] Speaker 04:
At some point, I've got to tell you, somebody's going to bring a case like this and we're going to sanction them for a frivolous appeal in light of the state of the law.

[00:08:32] Speaker 04:
Because at some point,

[00:08:33] Speaker 04:
I understand.

[00:08:34] Speaker 04:
Your client lost property rights that he secured long ago when the stable law was different.

[00:08:38] Speaker 04:
So I understand why he wants to fight to the death to preserve them.

[00:08:42] Speaker 04:
But there's nothing in this case that distinguishes it.

[00:08:45] Speaker 04:
This is one of the least strong cases I've seen in a long time to be complaining about the 101 ruling in light of the current state of our law, which I am bound by.

[00:08:56] Speaker 00:
You've got to be careful.

[00:08:58] Speaker 00:
I don't think this is anything like Alice.

[00:09:01] Speaker 00:
Alice, you had

[00:09:02] Speaker 00:
a whole bunch of information that was old practices, old business practices, and all you did with Alice was to add

[00:09:10] Speaker 00:
a generic piece of computer software.

[00:09:12] Speaker 00:
This is nothing like that whatsoever.

[00:09:16] Speaker 00:
This is a new piece of specifically designed software that is connected with a new kind of computer that at the time, as we said, was not well known, it was not generic, and it was able to do something it had never done before, and it had a great improvement

[00:09:38] Speaker 00:
uh... on the technology is solved a very very significant problem you could drive in your car you could look at the the display and you can see where you should waste time driving to and where you shouldn't you save time to save gas it was a very very significant improvement over the uh... uh... or the technology at the time does the fact that it's new make it necessarily no abstract

[00:10:03] Speaker 00:
No, not necessarily, but I think... No, what I'm arguing is that you would have to take a look at the claims and we think that when you take a look at the claims you would see in terms of abstractness that this is a concrete problem solver.

[00:10:23] Speaker 00:
It's not the abstract, quote, looking for parking.

[00:10:27] Speaker 00:
which is what ParkMe and the judge apparently wanted to tag us with.

[00:10:32] Speaker 02:
This is collecting and disseminating information about parking.

[00:10:38] Speaker 02:
That's what the system does.

[00:10:39] Speaker 00:
It does it in a new way with new technology and to solve a new problem.

[00:10:48] Speaker 00:
But it is not abstract in our view.

[00:10:53] Speaker 00:
If you do not want to

[00:10:56] Speaker 00:
get us to the non-abstract determination, then we would argue that this is an inventive concept that turned an abstract idea into an eligible patented problem.

[00:11:11] Speaker 02:
Right, but you have to get over the step one hurdle.

[00:11:14] Speaker 00:
Well, I'm trying.

[00:11:17] Speaker 00:
Judge Moore doesn't seem to think that I would get over step one, but we believe that this is an inventive

[00:11:22] Speaker 00:
in a venive concept that greatly... Let me just make certain I understand.

[00:11:27] Speaker 02:
So are you essentially making a step two argument here?

[00:11:31] Speaker 00:
I'm willing to make them.

[00:11:32] Speaker 00:
They overlap.

[00:11:33] Speaker 00:
I believe they overlap.

[00:11:34] Speaker 00:
The court, I think, in step one, looks at the patent claims to determine whether or not it can get by abstractness.

[00:11:46] Speaker 00:
So we're asking the court, in terms of step one,

[00:11:49] Speaker 00:
uh... to look at the uh... what the uh... uh... focus of the claim is and determine whether or not the focus is is uh... concrete enough we think it is but we are willing to also argue if we have to that this patented this invention was uh... inventive it was certainly inventive even i think that even judge hornack thought it was a terrific idea it's a cool idea it's solved the problem

[00:12:16] Speaker 00:
that people had and it solved it in a new way using non-generic piece of computer equipment which did not exist before the date of the patent was not used for this way and at least there's no evidence of that and it used a specific piece of software which told, which is

[00:12:40] Speaker 00:
described in the patent, an application to do a very specific thing.

[00:12:46] Speaker 00:
That's what applications do.

[00:12:47] Speaker 00:
That would have been one of the definitions of an application that we would have presented to Judge Hornak at the time if he wanted to consider our claim constructions.

[00:12:57] Speaker 02:
You certainly didn't invent the wireless communication device that's capable of assessing the area, right?

[00:13:04] Speaker 00:
The point of novelty is not on the wireless communication device.

[00:13:07] Speaker 00:
The point of novelty, in our view, is the combination

[00:13:10] Speaker 00:
of the two, the wireless communication device had not been used in our understanding for this before.

[00:13:18] Speaker 00:
This would have been the first time not only that it was used for parking, but would have been used for anything that is to

[00:13:25] Speaker 00:
to create a real time, a real time representation of information that somebody could look at and use.

[00:13:35] Speaker 00:
We don't know that that, there's no evidence that that existed before and we don't think it did.

[00:13:39] Speaker 00:
So the use, this is not the use of a generic computer, it's not the use of an off the shelf piece of computer software.

[00:13:47] Speaker 00:
This was a very inventive concept at the time that my client

[00:13:54] Speaker 00:
recognized because he was going through the problem every day, and it helps people.

[00:14:01] Speaker 00:
You don't go to the lot anymore.

[00:14:03] Speaker 00:
You don't have to go to the lot anymore.

[00:14:05] Speaker 00:
That was the old way people did it.

[00:14:08] Speaker 00:
And to keep you from going to the lot and being able to decide whether you're going to turn right, whether you're going to turn left, and which

[00:14:15] Speaker 00:
a lot you're going to go to.

[00:14:17] Speaker 00:
That was, I thought, pretty inventive at the time, and it was certainly a great advance over the parking technology that existed.

[00:14:27] Speaker 00:
So I'm happy to make either argument based upon a review.

[00:14:32] Speaker 00:
We're looking at inventiveness for step two.

[00:14:36] Speaker 00:
We think this is a great, very, very great step in inventiveness for this kind of

[00:14:43] Speaker 00:
this kind of problem.

[00:14:46] Speaker 04:
Thank you.

[00:14:47] Speaker 04:
OK, we'll save the remainder of your time for rebuttal.

[00:14:50] Speaker 04:
Mr. McBrayer.

[00:14:52] Speaker 01:
Thank you, Your Honor.

[00:14:53] Speaker 01:
May I please the court, Ryan McBrayer, for the appellant park me, or appellee park me, excuse me.

[00:14:58] Speaker 01:
I'll be brief and willing to answer whatever questions the court has.

[00:15:02] Speaker 01:
But there are just a number of simple ways the court can and should decide this as a plain vanilla Alice case.

[00:15:14] Speaker 01:
What the court has just heard is a long recitation of why this is inventive, as if the court should entertain a 102 or 103-style inquiry.

[00:15:24] Speaker 01:
And that's not the case here.

[00:15:27] Speaker 01:
What we're dealing with is a longstanding human practice that neither side disputes as a longstanding human practice, namely the effort to get information about open parking spaces, to which the patentee added a generic computer

[00:15:43] Speaker 01:
a generic application, which is recited in the patent only as Internet Explorer or Word.

[00:15:49] Speaker 04:
But this is a valuable invention.

[00:15:51] Speaker 04:
I look at stuff like this, and I think, I'm glad somebody did this.

[00:15:54] Speaker 04:
This makes my life a little easier.

[00:15:56] Speaker 04:
It's kind of like when you pull into Tyson's Corner, which is near here, and they got the little red light or a green light.

[00:16:01] Speaker 04:
You can look down the road.

[00:16:02] Speaker 04:
You don't have to drive down the road anymore to see if there are vacant or full spots, because there's little lights at the top.

[00:16:07] Speaker 04:
So you can just look down the whole row, 50 cars, and you know if there's an empty spot.

[00:16:11] Speaker 04:
This is a valuable invention.

[00:16:13] Speaker 04:
Why shouldn't this be patent eligible?

[00:16:14] Speaker 01:
Your Honor raises the efficiency point.

[00:16:17] Speaker 01:
I was going to comment on Judge Clevenger's question, too.

[00:16:20] Speaker 01:
It might make life more efficient.

[00:16:24] Speaker 01:
It does not make the technology more efficient.

[00:16:27] Speaker 01:
And all of this court's decisions

[00:16:29] Speaker 01:
that have found compatibility.

[00:16:30] Speaker 04:
What was the state of the technology before this?

[00:16:32] Speaker 04:
I mean, when you say it doesn't make the technology more efficient, I'm not sure that's right.

[00:16:36] Speaker 04:
I think the state of identifying where open spots are was less efficient before this.

[00:16:42] Speaker 04:
I mean, what were the manners by which that was accomplished?

[00:16:46] Speaker 04:
Somebody standing there and points you there's a spot, or those lights I've just described still requires me to go to the row and look down.

[00:16:52] Speaker 04:
I mean, how does this not make it more efficient?

[00:16:54] Speaker 04:
You've got an app on your phone that says, there's a vacant spot on level three, row two.

[00:16:59] Speaker 04:
That seems more efficient.

[00:17:01] Speaker 01:
It makes life more efficient.

[00:17:03] Speaker 01:
But none of this court's cases have allowed a patent of this sort through the Alice screen merely by making life more efficient.

[00:17:12] Speaker 01:
This court has said that it must make the technology more efficient.

[00:17:15] Speaker 01:
It must use the technology not as a tool, but to improve the functioning of the technology in some way, whether it's DDR or Enfish or McRoe or anything else.

[00:17:25] Speaker 01:
All of those cases improve the technology, everything.

[00:17:29] Speaker 01:
presumably that has come before the court and been invalidated or found unpatentable, has no doubt made life more efficient, Your Honor.

[00:17:37] Speaker 01:
But it doesn't make the technology more efficient.

[00:17:40] Speaker 01:
And as to the specific state of the technology at the time, this court need rely on no more than the statements made in column two of the patent.

[00:17:49] Speaker 01:
There are, in particular, two patents there that talk about the remote transmission of parking information to portable devices

[00:17:59] Speaker 01:
In one instance, the portable device was in a car.

[00:18:02] Speaker 01:
In another instance, it was a remote device.

[00:18:04] Speaker 01:
And the nature of the device wasn't explained.

[00:18:06] Speaker 01:
But the patent itself here provides all that the court needs to assess the status of the prior art.

[00:18:12] Speaker 01:
And the patented issue, the patents.

[00:18:15] Speaker 04:
So good inventions, even inventions that nobody thought of before and everybody really likes and thinks are great and makes their life easier, still don't get to be patented.

[00:18:24] Speaker 01:
If they take a longstanding human practice,

[00:18:28] Speaker 01:
and implement it only with generic technology.

[00:18:31] Speaker 01:
Yes, and that's the case here for the 391 and 786 patents, unfortunately.

[00:18:37] Speaker 03:
Let's not necessarily say that it was a long-standing practice to communicate information remotely about the status of a parking lot.

[00:18:48] Speaker 03:
I mean, yes, that's all information we always wanted, but let's just say for the moment we never had it back in the 1990s.

[00:18:56] Speaker 03:
So, I mean, this case is, I mean, another way of looking at the abstract idea is what I think Judge Warnack said, which is merely moving data or communicating information from point A to point B. And that's an abstract idea, and you could probably find support for that notion in our cases.

[00:19:18] Speaker 03:
I guess what I'm wondering is, what if the claimed invention was something a little more than that?

[00:19:23] Speaker 03:
What if it was

[00:19:25] Speaker 03:
a graphical user interface that actually displayed a color-coded diagram of a parking lot, and then it showed you with colors the specific spots in the lot that were actually open.

[00:19:40] Speaker 03:
And so if it was far away in the deep recesses of the parking lot, you as the driver outside the parking lot with your app looking at your interface could see

[00:19:52] Speaker 03:
precisely where that spot is so you know you could just race like mad to get to that deep dark recess of the parking lot because you have this special map on your phone.

[00:20:05] Speaker 03:
Do you think that would be something that now is a little bit closer to the computer itself, that it would be regarded as

[00:20:14] Speaker 01:
No, Your Honor, because in that, in your hypothetical, what's happening is we're taking information and we're saying you're making life more efficient by communicating it remotely via a wireless link or in this instance, as the patent says expressly, by using the internet to communicate this information.

[00:20:32] Speaker 01:
in the same instance the long-standing human practice could have been looking back and looking at the parking lot with binoculars or waiting for the attendant to write lot full and know that one should move on as you drive down the block.

[00:20:46] Speaker 01:
The fact that the information is being transmitted even farther away than it was transmitted previously doesn't... I'm talking about the actual display interface that this

[00:21:00] Speaker 03:
imagine invention would have, which is now a clear identification of the location of a map through this constructed display system.

[00:21:13] Speaker 01:
In your hypothetical, Your Honor, if it were to improve the display and the way the display worked in and of itself, it might possibly be.

[00:21:25] Speaker 01:
But if all it is doing is

[00:21:29] Speaker 01:
In accomplishing the fact of making a display, this court has held on repeated occasions that inventions that include just a generic display do not make an invention patentable under Alice, most notably in the affinity labs and electric power group cases.

[00:21:47] Speaker 01:
If anything, the claims at issue here are more generic and describe a process, a longstanding human practice, in a more abstract manner than the claims in electric power group, for instance.

[00:22:00] Speaker 01:
You had the real-time transmission of electric utility data to a central processing station that processed it into something different and derivative of the original data and then displayed it.

[00:22:13] Speaker 01:
Whereas here, all we have is the transmission of the data and the display.

[00:22:18] Speaker 01:
And the patentees' reliance on this is a technological invention, technological being in quotes, doesn't make it patentable.

[00:22:28] Speaker 01:
The fact that we're dealing with real-time

[00:22:30] Speaker 01:
Data here doesn't make it patentable.

[00:22:31] Speaker 01:
That's the central holding of electric power, Your Honor.

[00:22:34] Speaker 04:
Do you have anything further?

[00:22:35] Speaker 01:
No, Your Honor.

[00:22:36] Speaker 01:
I'll cede the rest of my time and encourage the court to uphold Judge Hornak's rule.

[00:22:41] Speaker 04:
Thank you.

[00:22:44] Speaker 04:
Mr. Stein, you have a little bit of rebuttal time left.

[00:22:46] Speaker 00:
Your Honor, I only have a couple of points to make.

[00:22:50] Speaker 00:
Not only is there no evidence in the opinion of Judge Hornak that either the hardware

[00:23:00] Speaker 00:
which is identified as a handheld device.

[00:23:03] Speaker 00:
It could be item 160 in the patent.

[00:23:10] Speaker 00:
And in claim 70, it's also specifically identified.

[00:23:16] Speaker 00:
EBG was four years later.

[00:23:18] Speaker 00:
There was no particular type of computer involved.

[00:23:20] Speaker 00:
It used longstanding generic kinds of practices

[00:23:29] Speaker 00:
I've been around for a while and it did basically the same thing in my view as what was done in Alice.

[00:23:36] Speaker 00:
Our process

[00:23:39] Speaker 00:
was not long-standing at all.

[00:23:40] Speaker 00:
In fact, the process that we have in our patent, which is to say, receiving real-time data so that you can look at it, and it tells you, it lets you make a decision.

[00:23:53] Speaker 00:
That was not any kind of long-standing practice at all, certainly not for looking for parking.

[00:23:58] Speaker 00:
You had to go to the lot, and you had to look at a sign or some other evidence.

[00:24:03] Speaker 00:
Some person, as Judge

[00:24:05] Speaker 00:
Horak said writing on a whiteboard.

[00:24:08] Speaker 00:
Six units, six spaces left.

[00:24:12] Speaker 00:
The practice that is specified in our patent was not a long-standing practice.

[00:24:18] Speaker 00:
We invented it.

[00:24:19] Speaker 00:
And we think that the inventor and the company that is the owner of the patent is entitled to the benefit of that invention.

[00:24:31] Speaker 00:
And we're asking the court to return this case

[00:24:35] Speaker 00:
to Judge Warnock for trial.

[00:24:38] Speaker 04:
Thank both counsels.

[00:24:39] Speaker 04:
The case is taken under submission.

[00:24:42] Speaker 02:
All rise.

[00:24:45] Speaker 02:
The honorable court is adjourned for tomorrow morning at 10 o'clock a.m.