[00:00:06] Speaker 04: The next case for argument is 16-20-31, Prism Technologies versus T-Mobile. [00:00:46] Speaker 04: It's good to go, Mr. Andre. [00:00:51] Speaker 00: May it please the court? [00:00:55] Speaker 00: The jury system is one of the most powerful, important components of our judicial system. [00:01:01] Speaker 00: That's what distinguishes our system from others around the world. [00:01:05] Speaker 00: But that system, that component is very fragile. [00:01:09] Speaker 00: It relies upon the lawyers playing by a set of rules and judges enforcing those rules. [00:01:16] Speaker 00: In this case, lawyers didn't play by the rules and the judge did not enforce those rules. [00:01:22] Speaker 04: Can I just ask you a logistic question that's not going either way, which is with the validity challenges, the 102 and the 103, were those just affirmative defenses as opposed to counterclaims? [00:01:35] Speaker 04: Because in the jury verdict, the jury was told if you find no infringement, you don't reach the validity contentions, right? [00:01:43] Speaker 04: That's correct. [00:01:44] Speaker 04: So if you have a new trial or if they have actually found infringement, then you would still have been confronted with dealing with the validity case. [00:01:54] Speaker 00: That's correct. [00:01:56] Speaker 00: A new trial in this case would put validity back on the table, because as you said, the verdict form that was submitted by the parties... And were they just affirmative defenses in this case? [00:02:05] Speaker 00: I believe they were. [00:02:05] Speaker 03: I can't recall very specifically, but... There's a big difference, because if they were counterclaims, we don't have jurisdiction, do we? [00:02:14] Speaker 03: because there wasn't a final judgment. [00:02:17] Speaker 00: I believe they were affirmative defenses. [00:02:19] Speaker 00: We'll check on that. [00:02:25] Speaker 00: Anyway, we will check into that. [00:02:32] Speaker 00: The two aspects of the attorney misconduct in this case revolved around one, what was referred to in our briefs as the cellular [00:02:41] Speaker 00: and two was the listed testimony from their expert witness. [00:02:45] Speaker 00: The second argument was against the claim construction. [00:02:49] Speaker 00: The court had construed the claims to say that the client computer device could connect to the internet protocol network, either through a wired system or wireless. [00:02:59] Speaker 00: And the T-Mobile's attorneys actually argued that because the word cellular was not in the actual specification, [00:03:10] Speaker 00: was not in the claims, they could not cover cellular networks. [00:03:14] Speaker 00: They said that throughout the trial. [00:03:16] Speaker 00: That was against the claim construction. [00:03:18] Speaker 00: They said that, I mean, the attorneys said it or the witnesses said it? [00:03:22] Speaker 00: Well, the attorneys said it in opening statements and closing statements. [00:03:25] Speaker 00: And then they, in our case in chief, they directed our witnesses and they kept asking the question. [00:03:30] Speaker 00: That was the theme. [00:03:31] Speaker 00: The word cellular is not in your patents. [00:03:33] Speaker 00: They asked both inventors that. [00:03:34] Speaker 00: They crossed our expert on the same thing. [00:03:37] Speaker 00: So they argued it in their opening and closing. [00:03:39] Speaker 00: And then they brought it forward into Crescendo with their expert, saying because the word cellular is not in the actual specification, these claims cannot cover a cellular network. [00:03:50] Speaker 04: And you, of course, presumably rebutted that or responded to that in your opening statements and in your examination. [00:03:58] Speaker 00: We did. [00:03:58] Speaker 00: We did our best to counter that. [00:04:00] Speaker 00: We kept arguing to the judge. [00:04:02] Speaker 00: I think I personally made 40-plus objections saying that they are changing the claim construction. [00:04:08] Speaker 00: Because the claim construction did say it could be wireless or wired. [00:04:12] Speaker 00: And in their opposition brief on page 10, T-Mobile admits that it could cover cellular networks. [00:04:20] Speaker 00: But in the entirety of the case, they argued just the opposite. [00:04:24] Speaker 00: So that takes the balance that the jury gets, because the jury's not educated in law. [00:04:29] Speaker 00: That's a real common sense argument. [00:04:30] Speaker 00: The word cellular is not in the specification of claims. [00:04:33] Speaker 00: Therefore, it can't cover cellular networks. [00:04:36] Speaker 00: That's a good common sense argument. [00:04:38] Speaker 00: But it takes the balance that the jury relies upon and just kind of tilts it. [00:04:41] Speaker 00: It makes it unfair. [00:04:43] Speaker 00: So that was an argument that was made from opening through our case in chief and the cross-examination of our witnesses, our experts and our fact witnesses, and then with their witnesses as well, and then once again in closing. [00:04:56] Speaker 00: And when you raise those objections with the judge, the judge said? [00:05:01] Speaker 00: He said, they can't do that. [00:05:03] Speaker 00: I will give you an instruction. [00:05:05] Speaker 00: I will instruct the jury. [00:05:06] Speaker 00: And he said, oh, many times, I will give you an instruction to instruct the jury that these claims do cover wireless and can cover cellular. [00:05:14] Speaker 00: And that's what we relied on. [00:05:16] Speaker 00: We kept making the objections. [00:05:18] Speaker 00: At one time during the cross-examination, the direct examination of their expert, I called a sidebar. [00:05:23] Speaker 00: It's a very lengthy sidebar. [00:05:24] Speaker 00: And I warned the judge. [00:05:25] Speaker 00: I said, Your Honor, they're doing it again. [00:05:27] Speaker 00: They have their expert witness who's up there going to give alternative claim interpretations, one for validity and one for infringement. [00:05:34] Speaker 00: He did the, you know, heads I win, tails you lose argument. [00:05:38] Speaker 00: And I said, that's improper. [00:05:40] Speaker 00: You cannot use two different claim instructions, one for validity, one for infringement. [00:05:44] Speaker 00: And the judge said, you're right, he can't. [00:05:46] Speaker 00: You give me an instruction, I will read it to the jury. [00:05:49] Speaker 00: So we count on that. [00:05:50] Speaker 00: We kept making objections. [00:05:51] Speaker 00: He told them to be careful. [00:05:52] Speaker 00: They kept doing it anyway. [00:05:54] Speaker 00: That's what made this an unfair trial. [00:05:56] Speaker 00: And then you gave him the instruction and he... He rejected it. [00:06:01] Speaker 00: Because? [00:06:02] Speaker 00: I have no idea. [00:06:03] Speaker 00: It was... [00:06:04] Speaker 00: There was no reason given. [00:06:06] Speaker 00: We provided the instruction. [00:06:08] Speaker 00: You'll see that in our briefing. [00:06:10] Speaker 00: It was just rejected. [00:06:12] Speaker 00: They objected to it, and he granted their objection, and we didn't get the instruction. [00:06:17] Speaker 00: And that was pivotal. [00:06:19] Speaker 00: The two aspects of their case, one about the cellular argument where they continually said, because the word cellular is not there, we cannot cringe. [00:06:29] Speaker 04: What's the standard of our review? [00:06:31] Speaker 04: You're challenging the judge's failure here to give the curative instruction. [00:06:36] Speaker 00: What's the standard of our review? [00:06:38] Speaker 00: The standard of review for the curative instruction is de novo. [00:06:42] Speaker 00: This is a question of patent law, which goes to federal circuit law. [00:06:46] Speaker 00: There was a footnote in the opposition brief saying this should be a circuit law, which would be an abuse of discretion. [00:06:51] Speaker 00: But as the court is aware, if it's an issue of patent law, anything, a jury instruction to patent law, it goes to federal circuit law. [00:07:00] Speaker 00: And the Federal Circuit law is a de novo review on this. [00:07:04] Speaker 04: What is our case that says that you review judges' determination with respect to whether a curative instruction is necessary de novo? [00:07:16] Speaker 00: It's the Solcer case that we cite in our brief. [00:07:19] Speaker 00: It doesn't say a curative instruction. [00:07:22] Speaker 00: It says an improper jury instruction on patent law. [00:07:25] Speaker 00: So basically, if you look at an instruction on patent law, it goes to Federal Circuit law. [00:07:31] Speaker 00: In that case, it was a lie. [00:07:32] Speaker 04: That's true. [00:07:33] Speaker 04: I guess, I think this issue is a little different than that issue. [00:07:37] Speaker 04: We've had cases where the jury instructs and it's ears as a matter of law in terms of what they say. [00:07:43] Speaker 04: Clearly that's reviewed to no bar, but I think this argument is a bit different. [00:07:49] Speaker 00: You're right. [00:07:50] Speaker 00: It is a slight bit different because here it was a failure to give an instruction on claim construction. [00:07:55] Speaker 00: To give an instruction on claim construction. [00:07:57] Speaker 00: Because that's what he said he would do. [00:07:59] Speaker 00: He would give us a very specific instruction on the claim construction issue that has been raised. [00:08:04] Speaker 04: Well, essentially, though, you're challenging his evidentiary determinations and his failure to either grant your objections at the time or try to do something to fix it later, right? [00:08:17] Speaker 00: That seems to me more of an abuse of discretion. [00:08:21] Speaker 00: And from that aspect, we are looking at abuse of discretion for not awarding a new trial. [00:08:25] Speaker 00: Because there's two standards here. [00:08:27] Speaker 00: One's for the new trial. [00:08:28] Speaker 00: Obviously, that's an abuse of discretion standard. [00:08:31] Speaker 00: We appreciate that. [00:08:32] Speaker 00: But not giving the curative instruction or giving failure to give that, we believe, would be a de novo review under federal circuit law. [00:08:39] Speaker 03: I'd like to ask you about the cross-appeal, the 101 question. [00:08:43] Speaker 03: Even though we haven't heard argument on that, depending upon how much time you use, on your main argument, you may not have much time. [00:08:50] Speaker 03: on the cross appeal. [00:08:51] Speaker 03: Would you address that, please, as to why the claim doesn't address to abstract concepts? [00:08:57] Speaker 00: Sure. [00:08:58] Speaker 00: And I would like to get back to the expert testimony about it. [00:09:00] Speaker 00: I'll answer your question first. [00:09:02] Speaker 00: Essentially, what the TMO was doing is overgeneralizing the patents. [00:09:10] Speaker 00: There is no one representative claim in this patent. [00:09:13] Speaker 00: These patents are very different. [00:09:14] Speaker 00: The dependent claims offer a lot. [00:09:16] Speaker 00: These offer concrete solutions to real-world problems. [00:09:20] Speaker 04: There is, it recites... Well, the judge found there was an abstract idea. [00:09:24] Speaker 00: The judge defines abstract idea. [00:09:26] Speaker 04: So we're only dealing with this conclusion as to whether or not there's something inventive here on this abstract idea. [00:09:32] Speaker 04: So do you agree with that, that this is exclusively a step two, or are you fighting back on the abstract idea conclusion? [00:09:39] Speaker 00: We're pushing back on the abstract idea. [00:09:40] Speaker 00: We think there's been a subsequent body of case law since he made the determination that further clarifies step one. [00:09:46] Speaker 00: That would be, if you look at the [00:09:49] Speaker 00: You know, everything from McCrow to Enfish and all those cases that have come out, and even more recently with the Trading Technologies case, I think it's made it very clear that the abstract idea of step one, you have to look at the claims in its entirety, and even though the judge found it was an abstract idea, we disagree with that. [00:10:11] Speaker 00: But on step two, the inventive concept, we do say, and he actually made factual findings, which I think is very important here. [00:10:18] Speaker 00: He looked at expert testimony and other evidence as well. [00:10:21] Speaker 00: So he made factual finding that this was inventive, that it didn't just recite standard computer language. [00:10:31] Speaker 00: It actually was directed to the technology applications uniquely rooted in the computer technology. [00:10:39] Speaker 00: It basically allowed the use of an internet protocol network or the internet as an example that was not previously known. [00:10:47] Speaker 00: It was requested by a client of my client, DTN, said we need a solution. [00:10:55] Speaker 00: So they went through and found a solution to this real-world problem. [00:10:59] Speaker 03: How do you communicate? [00:11:00] Speaker 03: Well, most software programs are very clever. [00:11:05] Speaker 03: The client asks for it, and your client provides a solution. [00:11:09] Speaker 03: But the claims recite moving information around at a very high level using standard [00:11:17] Speaker 03: computer products. [00:11:21] Speaker 00: I would disagree with that respectfully, Your Honor. [00:11:24] Speaker 00: What it requires is having a unique identifier in a piece of hardware. [00:11:30] Speaker 00: That's the client computer device. [00:11:32] Speaker 00: It has a unique identifier that then uses this public network, an untrusted network, to communicate to a series of very specific servers. [00:11:44] Speaker 00: And those servers have [00:11:46] Speaker 00: really unique characteristics. [00:11:48] Speaker 04: How do we know that? [00:11:48] Speaker 04: I mean, your friend tells us that hardware identifiers can include any number of pre-existing identifiers. [00:11:58] Speaker 04: You disagree with that? [00:11:59] Speaker 04: How do we know you're right and he's wrong? [00:12:01] Speaker 00: Well, you have to look at the finding of facts that the judge found in the district court. [00:12:07] Speaker 00: Other expert reports, we have this in our briefs, this type of technology was not common back in 1996 and 1997. [00:12:14] Speaker 00: This was a new technology. [00:12:17] Speaker 00: What was going on at that time was internet was not commercially available until 1995, early 1996. [00:12:24] Speaker 00: This was a new technology that people did not know how to use. [00:12:28] Speaker 00: They were using passwords and a human input. [00:12:31] Speaker 00: So this giving us a unique identifier in this hardware on the client computer device was something that was new. [00:12:41] Speaker 03: The district judge dealt with this issue in basically one paragraph, half page. [00:12:48] Speaker 03: Not very extensive. [00:12:51] Speaker 00: He was a very succinct judge. [00:12:52] Speaker 00: I'll give him that. [00:12:54] Speaker 04: But you know, sometimes... Well, you mentioned we should look at his findings and I'm looking at them as Judge Laurie is and they're not very extensive. [00:13:04] Speaker 00: He did rely on the factual underpinnings of the expert declaration and what was put in. [00:13:10] Speaker 00: This is not just moving data around. [00:13:14] Speaker 00: This is about authentication, authorization, access to get this secure information. [00:13:20] Speaker 00: The system it goes through to do that was not known at the time. [00:13:26] Speaker 00: And if you look at the actual claim elements, and especially if you get through some of the more dependent claims, it lists more very specific elements. [00:13:34] Speaker 00: So this is not just a, if you look at anything from 20,000 feet, [00:13:38] Speaker 00: It looks general, and that's what my friends here are doing. [00:13:43] Speaker 00: They would look at a lit room from 300 yards, and Thomas Edison's light bulb looks like a candle. [00:13:50] Speaker 00: It lights the room. [00:13:51] Speaker 00: If you look at it from a distance, everything looks general. [00:13:53] Speaker 00: And the Supreme Court warned us about this. [00:13:55] Speaker 00: This was solving real-world problems rooted in computer technology. [00:14:01] Speaker 00: One last thing on the expert testimony, because I did find this very troublesome. [00:14:08] Speaker 00: When their expert got up and testified on the infringement trial, their expert got up and gave an alternative view of infringement and validity. [00:14:17] Speaker 00: That to me is something that is just very telling of the whole tone of the trial, using two different claim constructions. [00:14:23] Speaker 00: And that in by itself is enough to get a new trial in this case. [00:14:26] Speaker 00: I'll reserve the rest of my time. [00:14:35] Speaker 02: Thank you. [00:14:35] Speaker 02: Chief Judge Prost, and may it please the court, [00:14:38] Speaker 02: This was not a close case, not at all. [00:14:41] Speaker 02: The evidence of non-infringement was so specific, so overwhelming, and eventually so conceded by plaintiff's own witness that plaintiffs do not even argue on this appeal that the jury verdict was against the weight of the evidence. [00:14:57] Speaker 02: Under Eighth Circuit law, which applies to the question of whether or not the judge erred in his discretion in not granting a new trial, [00:15:05] Speaker 02: Eighth Circuit Law says that's an extraordinarily deferential standard reserved for miscarriages of justice where the case was close. [00:15:13] Speaker 02: That was not this case. [00:15:15] Speaker 02: T-Mobile's trial defenses were focused very specifically on the role of each of the servers in each of its five networks. [00:15:24] Speaker 02: There was no attorney misconduct of any type. [00:15:28] Speaker 02: The premise for both questions is a falsehood. [00:15:32] Speaker 02: There was no misconduct. [00:15:36] Speaker 02: that supposed misconduct was that we made an argument that by definition, because the word cellular is not in the claims, then we could not infringe. [00:15:47] Speaker 02: We never made such an argument. [00:15:49] Speaker 02: It's not there. [00:15:50] Speaker 02: Now there's two ways to decide or to prove the point that it's not there. [00:15:55] Speaker 02: One is to read the whole transcript and see it's not there. [00:15:58] Speaker 02: The second is to realize that there was never an objection [00:16:02] Speaker 02: Council points to seven instances in Mr. Krevit's opening statement where he supposedly went over the line, committed misconduct, not one objection. [00:16:11] Speaker 02: They emphasize in both briefs, argument made in closing, not one objection of any sort, of any nature. [00:16:19] Speaker 04: Compare that to our situation. [00:16:20] Speaker 04: Didn't he tell us about instances? [00:16:22] Speaker 04: I think he did. [00:16:24] Speaker 04: He said the number seven, for whatever reason, and sidebars. [00:16:27] Speaker 04: and the judge agreeing to a curative instruction. [00:16:30] Speaker 04: This may not be the opening and the closing. [00:16:32] Speaker 04: This may be what the witnesses say. [00:16:34] Speaker 02: Well, and certainly in opening and closing, there's no dispute. [00:16:37] Speaker 02: There was no objection. [00:16:38] Speaker 02: And I contrast that with our situation, where we objected to the issue of whether the sprint jury verdict could come in. [00:16:44] Speaker 02: We objected before the opening with the judge in a conference on written papers. [00:16:49] Speaker 02: And after it was over, we objected on misconduct grounds for raising that issue. [00:16:54] Speaker 02: And we did it with a motion for mistrial on the record. [00:16:57] Speaker 02: That's preservation. [00:16:59] Speaker 02: There was no preservation here. [00:17:00] Speaker 02: Now, he discusses other objections. [00:17:02] Speaker 02: And Your Honor asked about other objections. [00:17:05] Speaker 02: If you look at the objections, they were directed to the written description portion of the case. [00:17:11] Speaker 02: We had a written description argument that focused on the fact that one of ordinary skill in the art reading the patents, reading the 416 application, [00:17:21] Speaker 02: because they wanted to take the chain of priority back to 1997, would never have understood that internet access was within the scope of the invention. [00:17:29] Speaker 04: Was written description in this case? [00:17:31] Speaker 02: Written description was absolutely in this case. [00:17:33] Speaker 02: It was a fundamental part of this case until the judge told us that if we won on infringement, and we did 30 for 30, we had 30 infringement questions, all answered non-infringement. [00:17:44] Speaker 02: And the judge said, then, don't reach the affirmative defenses under 102 and 103. [00:17:49] Speaker 02: So because of that, but there were witnesses on both sides, written description was a huge defense. [00:17:55] Speaker 02: Indeed, had we lost the case, that would probably be the first thing we would be talking about, if it would be one of the major points of appeal. [00:18:03] Speaker 02: But there was no. [00:18:05] Speaker 02: That's their problem. [00:18:06] Speaker 02: Their problem is they're upset about how the written description witnesses were questioned. [00:18:12] Speaker 02: And their problem is, that didn't even go to the jury. [00:18:14] Speaker 02: That has nothing to do with the verdict. [00:18:16] Speaker 02: Now, Your Honor asked a very important question, which is, what happened when you made objections? [00:18:21] Speaker 02: Because I'll tell you first, there were no objections through openings and closings. [00:18:26] Speaker 02: There was never an objection where they articulated the so-called cellular argument. [00:18:30] Speaker 02: That's not what the objections were. [00:18:32] Speaker 02: There were objections about the written description portion of the examination. [00:18:38] Speaker 02: And on those, the judge ruled for us. [00:18:41] Speaker 02: Page 30 to 31 in the blue brief, they have 10 examples of places where they say, we preserved with objections. [00:18:48] Speaker 02: In the yellow brief, at pages 16 to 17, they say 11 examples. [00:18:52] Speaker 02: Well, those 11 are the same 10 from the blue brief plus 1. [00:18:56] Speaker 02: Of those 11 examples, 10 of them, the objection was overruled. [00:19:00] Speaker 02: In one instance, the judge sustained an objection. [00:19:03] Speaker 02: That question was, would you agree that Mr. Greg, the inventor, was not a person of ordinary skill in the art [00:19:10] Speaker 02: 1997, that question has nothing to do with the so-called cellular argument. [00:19:15] Speaker 02: That was the only sustained objection. [00:19:17] Speaker 02: Compared to the case they cite, they cite the Willis case four times in their blue brief. [00:19:22] Speaker 02: The Willis case was a two and a half day trial. [00:19:25] Speaker 02: Counsel objected 14 times on the first day, I'm sorry, 18 times on the first day, 34 times on the second day, and every one of those more than 50 objections was sustained. [00:19:38] Speaker 02: Counsel was admonished over and over again. [00:19:40] Speaker 02: That never happened here. [00:19:42] Speaker 02: It never was even an issue in the district court. [00:19:43] Speaker 02: We have been blindsided on appeal by a claim of misconduct that is outrageous. [00:19:48] Speaker 02: Why don't we move on to the 101? [00:19:50] Speaker 02: Yes, Your Honor. [00:19:52] Speaker 02: The 101 case. [00:19:54] Speaker 02: Judge Strom, of course, recognized properly that we're dealing with an abstract idea here. [00:19:59] Speaker 02: And I won't belabor that point, but the abstract idea is that access to protected resources should be limited to authorized requesters. [00:20:07] Speaker 02: The testimony of the two inventors at trial [00:20:10] Speaker 02: confirmed that which the patent specification makes clear. [00:20:13] Speaker 02: This was about if you have a website and you have internet content and you want to limit some of the content to people who pay a subscription fee for it, how do you go about doing that? [00:20:23] Speaker 02: Well, you should find out who they are and you should make sure they paid for it in advance. [00:20:28] Speaker 02: That's all this is about. [00:20:30] Speaker 02: That is an old and abstract concept applied to the internet and Alice itself from the Supreme Court tells us that's insufficient. [00:20:38] Speaker 02: The court relied on the Jericho Systems case out of Texas, which was affirmed by this court in Rule 36 disposition. [00:20:46] Speaker 02: If you look at that case or the Ultramershal case versus Hulu or the Smart Flash case, those are all situations in which there was some prerequisite to receiving content. [00:20:57] Speaker 02: And in all cases, that idea was considered to be abstract, and the patent claims were considered to be unpatentable. [00:21:05] Speaker 02: So Judge Strom said it's abstract, but they get past that because of DDR holdings. [00:21:11] Speaker 02: DDR holdings does not apply to this case. [00:21:13] Speaker 02: The problem here of needing to identify someone who requests a protected resource, something of value, before you give them that thing of value, that is not a problem that is in any way inherent to the internet. [00:21:28] Speaker 02: If you have ever [00:21:31] Speaker 02: gone to board a commercial airline. [00:21:33] Speaker 02: You must first prove your identity with an ID. [00:21:36] Speaker 02: You must then show a boarding pass to show you're entitled to get on the plane. [00:21:40] Speaker 02: If you go to a will call window at a theater, you must first prove your identity. [00:21:43] Speaker 02: Then you must show the credit card and prove that you actually paid for the tickets. [00:21:47] Speaker 02: In all those instances, you're both showing authentication and authorization. [00:21:52] Speaker 02: This happens in the real non-internet world, and it's happened since time immemorial. [00:21:57] Speaker 04: OK, but on step two, as we discussed with your friend, the judge kind of was very abbreviated in his discussion. [00:22:06] Speaker 04: But he says, one, during the mid-1990s, the patents addressed an inventive concept that solved the problem of delivering resources over an untrusted network. [00:22:17] Speaker 04: Not sure with that. [00:22:17] Speaker 04: But he did say, in addition, he refers to Dr. Lyon. [00:22:23] Speaker 04: and his testimony. [00:22:25] Speaker 04: So why is Dr. Lyon's testimony not sufficient to establish that there was some sort of inventive concept under step two here? [00:22:33] Speaker 02: Well, first, this is a pure legal issue, and it should be looked at within the four corners of the patent. [00:22:41] Speaker 02: None of this is set forth in the patent. [00:22:44] Speaker 02: What Judge Strom specifically said in Appendix 34 is, quote, the claims modify the way the internet functions [00:22:53] Speaker 02: to provide secure access over a protected computer resource. [00:22:57] Speaker 02: Well, nothing in the claims modifies how the Internet functions. [00:23:02] Speaker 02: And nothing in the claims modifies the conventional uses of generic computers. [00:23:07] Speaker 02: The claims are not directed at improving a computer in any way as a tool. [00:23:13] Speaker 02: They don't do that. [00:23:14] Speaker 02: There's no parallel here to Enfish where you found the self-referential database, which improved on prior relational databases. [00:23:22] Speaker 02: And so the actual functioning of the computer became better because of the claimed invention. [00:23:27] Speaker 02: That's not here. [00:23:29] Speaker 02: Here, what you have is results-oriented, purely functional claims that tell you to do something, authenticate, authorize, and give access, but it doesn't tell you how to do any of those functions. [00:23:43] Speaker 02: Receiving data at a computer, transmitting that to another computer, and then comparing the received data to your stored data to see if it matches, if there's an authorization, that is absolutely generic conventional uses of componentry. [00:23:59] Speaker 02: There is nothing specific here whatsoever. [00:24:03] Speaker 02: This, you can contrast what you have here with cases such as McRoe versus Bandai and Amdocs, where there were [00:24:11] Speaker 02: specific improvements that this court was able to identify and articulate. [00:24:16] Speaker 03: You've been talking mostly about the method claims. [00:24:18] Speaker 03: Yes. [00:24:19] Speaker 03: And the other patent has system claims. [00:24:22] Speaker 02: And again, that might bring up the Bascom concept of an ordered combination. [00:24:26] Speaker 02: And Bascom, you'll recall, it was the filtering device, that prior filtering devices had been either entirely local or centralized. [00:24:33] Speaker 02: And Bascom showed how by putting [00:24:36] Speaker 02: the filter in a specific non-conventional location, it improved the functioning of the network or the system. [00:24:43] Speaker 02: That's not the situation here. [00:24:44] Speaker 02: Here you have authentication servers and generic access servers. [00:24:50] Speaker 02: Indeed, the access servers here play essentially no role. [00:24:55] Speaker 02: The definition, the court construction of an access server, is simply software capable of conveying information. [00:25:02] Speaker 02: An E-node B, a cell tower pole, [00:25:05] Speaker 02: That is an access server according to Dr. Lyon because it receives a radio signal and it transmits it onto the MME where the authentication is done. [00:25:13] Speaker 02: That makes it an access server. [00:25:15] Speaker 02: To say that a network is now beyond 101 challenge because one computer passes information onto another computer would make a mockery of 101. [00:25:27] Speaker 02: There is nothing in the system. [00:25:29] Speaker 02: that is set up to show why this system is designed in a way that's different from the past or better than the past, or how to set up the system to make it different or better. [00:25:39] Speaker 03: Can you clarify the point a question raised earlier? [00:25:43] Speaker 03: Was the invalidity issue raised as a defense or a counterclaim? [00:25:47] Speaker 02: 102 and 103 were raised as affirmative defenses. [00:25:51] Speaker 02: They were actually pleaded as a counterclaim in the answer, but everything merges in at the time of the final pretrial conference. [00:25:57] Speaker 02: And at that conference, they were. [00:25:59] Speaker 02: identified as affirmative defenses. [00:26:01] Speaker 02: And so for that reason, the court reached a ruling that they were not to go to the jury. [00:26:08] Speaker 01: Thomas, one of the other aspects of your cross-appeal is a challenge to the court's determination that this was not an exceptional case. [00:26:17] Speaker 01: Correct, Your Honor. [00:26:17] Speaker 01: Now, you're not asking us to vacate the judge's decision. [00:26:22] Speaker 01: You're asking us to, as I understand it from reading your brief, [00:26:25] Speaker 01: in effect, hold that the judge erred and that you did establish that this was an exceptional case. [00:26:30] Speaker 02: Correct. [00:26:31] Speaker 02: And then to send it back for a determination of what the appropriate amount of reasonable attorney's fees would be. [00:26:36] Speaker 02: And we say that for some very simple reasons. [00:26:39] Speaker 01: Because the ruling here was very brief. [00:26:42] Speaker 01: I mean, he just said, I've considered the record. [00:26:44] Speaker 01: It's in Appendix 10. [00:26:45] Speaker 01: He said, I've considered the record, and I don't find it an exceptional case. [00:26:49] Speaker 02: I think that's right. [00:26:49] Speaker 02: And I think, frankly, that it's very clear. [00:26:52] Speaker 02: This judge sat through two prior trials. [00:26:54] Speaker 02: They related to different companies with different systems who put on entirely different defenses. [00:26:59] Speaker 02: In one of them, in the AT&T case, the company settled during the case shortly before closings. [00:27:05] Speaker 02: In the second, there was a jury verdict that was favorable to the plaintiff. [00:27:10] Speaker 02: Those situations, we had a completely different case than that. [00:27:14] Speaker 02: We proved without dispute how our system works. [00:27:18] Speaker 02: If you look at DX802, [00:27:21] Speaker 02: It specifically identifies how the system works. [00:27:24] Speaker 02: It specifically identifies that the MME does the authentication. [00:27:28] Speaker 02: These are the 3GPP protocols that govern 3G and 4G LTE, and indeed govern 2G, which was pre this case. [00:27:38] Speaker 02: Authentication in cellular systems has been set up since the early 1990s. [00:27:42] Speaker 02: SIM cards as a matter of hardware has been there since the early 1990s. [00:27:46] Speaker 02: None of this was new. [00:27:49] Speaker 02: Nothing here was new. [00:27:50] Speaker 02: It was, they were trying to apply it against a cellular system in a way that didn't work, didn't fit. [00:27:56] Speaker 04: But it was our system. [00:27:57] Speaker 04: And yet, you never asked for summary judgment after you got the court. [00:28:00] Speaker 02: No, we absolutely didn't. [00:28:01] Speaker 02: We would not have received summary judgment from this court. [00:28:03] Speaker 02: He would have said there were disputed fact issues. [00:28:05] Speaker 02: It took almost eight hours of cross-examination of Dr. Lyon. [00:28:09] Speaker 02: That's what the other defendants didn't want to do. [00:28:11] Speaker 02: They count on the fact that they can make a case so complex, they can put a board up that's four feet wide and five feet tall, and they can plaster it full of [00:28:20] Speaker 02: of supposed document numbers and say, look, it all works together. [00:28:24] Speaker 02: It was a fabrication. [00:28:27] Speaker 02: It doesn't work that way. [00:28:28] Speaker 02: We proved it through the standards. [00:28:30] Speaker 02: We follow the standards, and it wasn't disputed. [00:28:32] Speaker 02: And if you look at the standards, the very exhibits, I gave you defendants 802, I would say plaintiffs, TX332. [00:28:40] Speaker 02: They show how the system works in 3G and 4G. [00:28:45] Speaker 02: the MME authenticates, they admit the MME is an access server, and they stipulated to the claim construction that the access server and the authentication server must be distinct. [00:28:57] Speaker 01: What's the plaintiff's exhibit number again? [00:28:59] Speaker 02: The plaintiff's exhibit is TX332. [00:29:03] Speaker 02: And when all was done, they did two things at the very end of the case. [00:29:08] Speaker 02: They changed their whole theory of infringement, and they argued that all this is just like checking into a hotel [00:29:14] Speaker 02: That's all this is. [00:29:15] Speaker 02: We're making a big deal out of authentication. [00:29:17] Speaker 02: It's not. [00:29:18] Speaker 02: The IMSE is authentication. [00:29:20] Speaker 02: Their witness, their witness at appendix three, six, six, two, four, explicitly disclaimed that an IMSE authenticated. [00:29:31] Speaker 02: He specifically said it does not during my cross-examination. [00:29:35] Speaker 02: And then at the end of the trial, they said the IMSE is good enough. [00:29:38] Speaker 02: It's just like checking into a hotel. [00:29:39] Speaker 02: And I submit to your honor that the example [00:29:42] Speaker 02: that our invention is like checking into a hotel tells you more about the 101 problems of this case than it tells you anything about the alleged infringement. [00:29:50] Speaker 02: Thank you, Your Honor. [00:29:51] Speaker 02: Thank you. [00:29:52] Speaker 02: I have reserved time, but I say I've used essentially it. [00:29:55] Speaker 04: You can use it all if your friend Reed, just the one on one issue, will restore it. [00:29:58] Speaker 04: Thank you, Your Honor. [00:30:02] Speaker 00: As my friend pointed out, we did have two trials previous to this on very similar systems. [00:30:07] Speaker 00: And in those trials, we got favorable decisions on both of them, favorable outcomes [00:30:12] Speaker 00: up to this court and that they had been affirmed. [00:30:16] Speaker 00: The difference was the parties played by the rules in those trials. [00:30:20] Speaker 00: They didn't here. [00:30:22] Speaker 00: That's what it comes down to. [00:30:23] Speaker 00: They say they didn't make the cellular argument, but our brief is replete with it. [00:30:26] Speaker 00: The biggest issue today is we didn't make objections during opening and closing. [00:30:31] Speaker 00: Now, I kind of have an honorable handshake deal. [00:30:34] Speaker 00: When you make an opening and closing, these arguments are not evidence. [00:30:37] Speaker 00: Were 101 issues in play in those other cases? [00:30:41] Speaker 00: They were. [00:30:42] Speaker 00: 101? [00:30:43] Speaker 00: Yeah, but it was not on appeal. [00:30:46] Speaker 00: So it was a joint motion on 101 in which the judge ruled that the patents were patent eligible. [00:30:54] Speaker 00: With regard to Judge Schall's question about whether fees should be applied here, all reasonable inferences would be drawn to PRISM, obviously, and look at the totality of circumstances. [00:31:05] Speaker 00: This is not a case that stands out. [00:31:06] Speaker 00: Jury trials are closed. [00:31:07] Speaker 01: Are you saying we can decide this issue because the judge had a pretty thin [00:31:12] Speaker 01: opinion on this point, and there does seem to be some law in our court suggesting that there has to be some explanation on the exceptional case exercise of discretion. [00:31:24] Speaker 00: Well, as this court has found many times, the person who's best suited to judge that is the trial judge. [00:31:30] Speaker 00: He's sit through the trial, and therefore a difference should be given to the judge on that, and this is abuse of discretion. [00:31:34] Speaker 00: He has sit through three trials at that point. [00:31:37] Speaker 00: One last thing, my friend talked about that [00:31:41] Speaker 00: that they focus on the role of each server. [00:31:43] Speaker 00: That shows one-on-one issue that this isn't been a concept. [00:31:46] Speaker 00: There are different roles for each server. [00:31:49] Speaker 00: Outside the elevators in this building right here, you notice there's a mutual authentication sign that this court's going to. [00:31:56] Speaker 00: Mutually authenticating your communications. [00:32:00] Speaker 00: That is what these patents are about as well. [00:32:03] Speaker 00: This is 20 years ago. [00:32:05] Speaker 00: These patents are talking about mutual authentication. [00:32:07] Speaker 03: They're not saying we're infringing. [00:32:10] Speaker 00: Yeah. [00:32:11] Speaker 00: I'll represent you if you are. [00:32:16] Speaker 00: But no, that tells you how inventive these patents were. [00:32:22] Speaker 00: Something this court's going on to today, going into, mutual authentication. [00:32:26] Speaker 00: These claims covered. [00:32:27] Speaker 00: We have mutual authentication. [00:32:28] Speaker 00: They don't address it. [00:32:29] Speaker 00: They talk about very high generalization of what the patents covered. [00:32:32] Speaker 00: It's simple access and authentication. [00:32:34] Speaker 00: That's not what the patents are about. [00:32:36] Speaker 00: It's about using this brand new system, the internet, [00:32:40] Speaker 00: in a way that no one had thought of before. [00:32:42] Speaker 00: That's the inventive concept. [00:32:43] Speaker 00: What they're using now is hindsight. [00:32:45] Speaker 00: And the judge actually was very specific in his order. [00:32:47] Speaker 00: He said, problems addressed by Prism's claims are ones that arose uniquely in the context of the internet, and the solutions proposed was a specific method of solving that problem. [00:32:57] Speaker 00: That's exactly right. [00:33:00] Speaker 00: Thank you. [00:33:02] Speaker 02: I have 10 seconds left. [00:33:05] Speaker 02: All I need is to say that the 101 issue was not in play in the AT&T [00:33:10] Speaker 02: or the Sprint case, we made a motion. [00:33:13] Speaker 02: It was made on behalf of ourselves. [00:33:15] Speaker 02: It is not made on behalf of the two remaining defendants who sit in court waiting to see whether their cases go forward. [00:33:21] Speaker 02: It was our motion and only our motion. [00:33:23] Speaker 04: Thank you. [00:33:24] Speaker 04: Thank you. [00:33:25] Speaker 02: We thank both sides and the cases submitted.