[00:00:00] Speaker 03: This case presents the important and fundamental question of whether inventions directed to data compression technology can be patentable or not. [00:00:23] Speaker 03: Data compression is an important area of technological innovation. [00:00:28] Speaker 03: and inherently involves mathematical algorithms. [00:00:31] Speaker 03: And improvements to data compression come about through new and innovative and better algorithms for compressing the data. [00:00:39] Speaker 03: And the district court opinion here could be taken to mean that data compression is simply not patentable. [00:00:45] Speaker 03: In particular, the district court said, the innovation claimed by the 303 patent is merely a more efficient manner of encoding composite facial image data. [00:00:55] Speaker 03: That is not enough. [00:00:57] Speaker 03: And that decision puts all data compression patents at risk, everything from MP3 audio coding technology to video coding. [00:01:07] Speaker 03: And even beyond data compression, it puts other technologies such as encryption technology and error correction coding technology that depend on improvements to mathematical algorithms at risk of being totally unpatentable. [00:01:22] Speaker 03: And the industry and the bar [00:01:24] Speaker 03: need guidance from this court on this critical question of whether data compression technology is patent eligible. [00:01:30] Speaker 02: Counsel, I appreciate your argument that the patents is aimed at the data compression technology. [00:01:42] Speaker 02: But your claims to me seem to be directed just to encoding and decoding. [00:01:49] Speaker 03: Well, Your Honor, encoding and data compression in this context [00:01:53] Speaker 03: mean the same thing. [00:01:55] Speaker 03: And in particular, in the specification, it talks about... Does it really? [00:01:58] Speaker 02: I mean, encoding, if I get a piece of paper and I write one on it, I've coded that. [00:02:06] Speaker 02: I haven't compressed it. [00:02:08] Speaker 02: I haven't done anything. [00:02:10] Speaker 02: I just put one on it. [00:02:11] Speaker 03: But if one means something, if there's a code book, for example, it says one means... But your claims reach out and capture what it means. [00:02:22] Speaker 03: Yes, it does, Your Honor. [00:02:24] Speaker 02: It appears to me that your claims are stuck here. [00:02:28] Speaker 02: What this means is out there your claims haven't, you haven't claimed that. [00:02:35] Speaker 02: I say this so that you can understand where my concern is with your position. [00:02:43] Speaker 03: Okay, well let me point to one thing or the same thing that the spec says a couple of times. [00:02:49] Speaker 03: and also what the claims say about what the encoded quantity represents. [00:02:56] Speaker 03: And so the claims refer to generating a composite facial image code. [00:03:03] Speaker 03: And in the specification, it says that the image code is a compressed digital representation of the image. [00:03:11] Speaker 03: And it says that in three separate places, in column two, line 56, column three, line 39, [00:03:19] Speaker 03: and column 3, line 48. [00:03:20] Speaker 03: It talks about the image code as a compressed digital representation of the image. [00:03:26] Speaker 03: That's how it's defined. [00:03:29] Speaker 03: And the claims themselves also reflect that idea, because it talks about the fact that the composite image is associated with a composite facial image code, and it talks about what's in [00:03:43] Speaker 03: that composite facial image code. [00:03:45] Speaker 02: Well, look at the first line on the Summer of Invention, on column two, line 16. [00:03:56] Speaker 02: So the invention provides a novel method and an apparatus for encoding messages. [00:04:03] Speaker 02: So when I read that, I mean, what I saw or thought of immediately were getting pictures and writing grandpa on it [00:04:13] Speaker 02: getting another one and writing, great time in Switzerland. [00:04:18] Speaker 03: Right. [00:04:18] Speaker 03: That's not what's meant by it. [00:04:20] Speaker 03: This is not about tagging images. [00:04:21] Speaker 03: This is a picture of my vacation. [00:04:24] Speaker 02: That's what you said. [00:04:24] Speaker 02: It's about encoding images. [00:04:26] Speaker 03: Right. [00:04:26] Speaker 03: But in this context, Your Honor, what it's talking about is being able to represent that image in a more compressed manner such that exact image can be recreated or reproduced at another location. [00:04:41] Speaker 03: And that's what it says. [00:04:42] Speaker 03: You look right up above the summary of the invention in that paragraph starting at line nine. [00:04:47] Speaker 03: It says, thus there exists a need in the industry to refine the process of encoding images such as to reduce the memory requirements for storage and the bandwidth required for the transmission of the image. [00:05:01] Speaker 03: So that makes clear that encoding is talking about compressing the image to represent the image in a manner [00:05:08] Speaker 03: that allows it to be stored using less space to be transmitted more quickly. [00:05:13] Speaker 02: I see that. [00:05:14] Speaker 02: And I see that that's what it says. [00:05:16] Speaker 02: But what you're talking about is a need that exists in the industry. [00:05:21] Speaker 02: Your next sentence doesn't reach that need. [00:05:25] Speaker 02: It doesn't tell me how the claims are directed or limited in a way that meet that compression need. [00:05:35] Speaker 03: Right. [00:05:36] Speaker 03: Well, I think if you read on down through the summary of the invention, it talks about how the invention generates this image code, which is a compressed representation. [00:05:45] Speaker 03: So instead of doing what was done in the prior art, where you would code each pixel individually, like JPEG codes each pixel individually, instead of doing that, what the patent says is you should code the feature. [00:05:58] Speaker 03: Say the eyes are this type of eye. [00:06:00] Speaker 03: They're located at this position. [00:06:02] Speaker 03: They're this color. [00:06:03] Speaker 03: The nose is this type of nose. [00:06:05] Speaker 03: and it's at this position and this size. [00:06:08] Speaker 03: And by combining all that information, the entire image can be represented more efficiently by this image code, which is based on the features in the image rather than based on simply compressing the pixels that are in the image. [00:06:26] Speaker 05: Is that in the last limitation of your claim that's talking about reproducing the composite image on a second display based on the composite facial image code? [00:06:35] Speaker 03: Yes, yes, yes. [00:06:37] Speaker 03: That is accurate, Your Honor, that once you have this composite facial image code, it can be used to reproduce the exact image that you started with on another device or at another location and get back the exact same image and to do that in a way that avoids degradation of the quality of the image and uses less space to store it and less space to transmit it. [00:07:00] Speaker 05: Well, that's the claim limitation that brings out the decoding. [00:07:04] Speaker 03: Yes, yes. [00:07:05] Speaker 03: In claim one, that's where it talks about decoding because it's reproducing the image using or based on the composite facial image code. [00:07:15] Speaker 03: Some of the other claims talk more explicitly about decoding, but all of the claims use this composite facial image code to allow for the reproduction of the image more efficiently. [00:07:26] Speaker 05: You rely on NFISH quite a bit in your briefing. [00:07:30] Speaker 05: And the end fish is talking about whether a claim is directed to a technological improvement. [00:07:36] Speaker 05: I think that's how you characterize it. [00:07:38] Speaker 05: An improvement to the computer technology itself. [00:07:40] Speaker 05: I think in that case it was memory and using the memory with a self-referential table. [00:07:47] Speaker 05: Is that the same as your case or is it different in the sense that I think of your case perhaps as having an invention directed to the improvement of the data, making the data [00:07:58] Speaker 05: smaller as opposed to improving, you're improving the data and not necessarily improving how the memory works or changing how the memory works. [00:08:08] Speaker 05: It's just storing less data to represent different information. [00:08:14] Speaker 03: Well, I think both cases are similar in that they both involve application level data structures that store information more efficiently. [00:08:23] Speaker 03: In Nfish, it didn't involve the change of the hardware. [00:08:25] Speaker 03: didn't involve a change to the firmware or the operating system. [00:08:28] Speaker 03: It was directed at a database application that had a better way of, or a better data structure, data model for storing data in the exact same memory of a generic computer. [00:08:39] Speaker 03: It was a generic computer. [00:08:40] Speaker 03: It was just an application level data structure. [00:08:43] Speaker 05: The functioning that was changing was how the memory itself was storing the information. [00:08:48] Speaker 03: Well, it was changing how the application was storing data. [00:08:51] Speaker 03: in the memory. [00:08:52] Speaker 03: It wasn't changing the hardware or any kind of low-level aspect of the memory pipeline. [00:08:56] Speaker 03: It was just changing the data structures that were used. [00:08:59] Speaker 03: Instead of using a relational database, it used a soft referential data structure. [00:09:03] Speaker 03: And the same thing applies here. [00:09:04] Speaker 03: It's talking about application-level software that is going to store the information that allows [00:09:14] Speaker 03: this image to be represented and recreated in a different way, using a new type of data structure, using this composite facial image code. [00:09:23] Speaker 03: And by storing the information in that way, it allows it to take up less space, just like an ENFISH, and allows it to be retrieved and transmitted more quickly. [00:09:32] Speaker 03: And an ENFISH talked about the speed as well. [00:09:35] Speaker 03: So in both cases, the information or the data is being stored in a different way, in a way that's different [00:09:44] Speaker 03: than the prior art ways of storing it. [00:09:47] Speaker 02: So when I read claim one, it gets me to thinking, OK, so I encode images, and I get a box of these images with Judge Stoll. [00:10:04] Speaker 02: He has the images. [00:10:06] Speaker 02: Then I pick up a phone, and I say 2335300. [00:10:13] Speaker 02: They hang up. [00:10:14] Speaker 02: Then she reaches in her box, pulls out 23, 305, the numbers I said, and she has the image. [00:10:22] Speaker 02: That's the way it's been done in the past in the industry, correct? [00:10:27] Speaker 02: I mean, that's the detective kit. [00:10:31] Speaker 03: Oh, yes. [00:10:31] Speaker 03: If you're talking about the identity kit, I guess there's two main responses. [00:10:37] Speaker 02: What I don't see in the claim, and I've just looked at claim one again because I don't want to miss it. [00:10:42] Speaker 02: is I don't see the compression that you're talking about, and I don't see the storage. [00:10:47] Speaker 02: I don't see how this solves the need in the industry to create more storage space for the images. [00:10:55] Speaker 02: I mean, it's... Can you point to claim one and show me where that's at? [00:11:04] Speaker 03: Yes, yes. [00:11:05] Speaker 03: So at least, first of all, procedurally, we don't think identikit should be considered for the reasons we discussed in our brief. [00:11:12] Speaker 03: properly part of the record on appeal. [00:11:14] Speaker 03: But even if you do consider it, the invention here has at least two fundamental differences from how Identikit operated. [00:11:23] Speaker 03: One is the fact that this invention uses code factors, and second, that the invention combines the different element codes together using code factors to multiply the facial image code together in a particular algorithm. [00:11:37] Speaker 03: And even counsel for Nintendo, [00:11:40] Speaker 03: doesn't argue that the identikit combined the element codes together in that matter. [00:11:47] Speaker 03: So there is definitely a specific technological difference and improvement over the way identikit operated. [00:11:54] Speaker 03: With respect to your question about where is the actual compression in the claim, it comes about by the fact that it associates each facial feature with a facial feature element code. [00:12:09] Speaker 03: So in other words, whereas the prior art would just code the whole image, it didn't know where the eyes were, the nose, where's the mouth. [00:12:17] Speaker 03: This invention says, instead of doing it that way, each different part of the face gets an element code that describes that particular part of the face. [00:12:27] Speaker 03: And by putting all that together, it requires less storage space than to code each pixel individually, as was done in the prior art. [00:12:37] Speaker 03: And so that's where the compression comes about, because it's using a facial feature element code to represent each facial feature. [00:12:46] Speaker 03: That's where the compression comes from. [00:12:48] Speaker 04: Mr. Baker, you wanted to save some rebuttal time. [00:12:50] Speaker 04: You're halfway through it. [00:12:52] Speaker 03: OK. [00:12:52] Speaker 03: Yes, Your Honor. [00:12:52] Speaker 03: Thank you. [00:12:53] Speaker 03: I will save my remaining time for rebuttal. [00:12:56] Speaker 04: Mr. Parris. [00:13:27] Speaker 01: Good morning. [00:13:28] Speaker 01: May it please the court. [00:13:29] Speaker 01: I'm Mark Harris. [00:13:30] Speaker 01: Together with Will Melahani, we represent Nintendo. [00:13:34] Speaker 01: The district court here got it right. [00:13:38] Speaker 01: The 303 failed to satisfy both aspects of the Alice test. [00:13:43] Speaker 01: The district court, in its own words, said the following. [00:13:45] Speaker 01: The 303 is directed to the abstract idea of encoding and decoding composite facial images using a mathematical formula. [00:13:52] Speaker 01: That's what the 303 is. [00:13:54] Speaker 01: When the district court moved on to step two, [00:13:58] Speaker 01: He said the following, the innovation claimed by the 303 patent is merely a more efficient manner of encoding composite facial image data by using a generic computer. [00:14:06] Speaker 01: That's what the 303 is. [00:14:09] Speaker 01: But before we get into the actual ALICE test, let's step back a moment and actually think about what the 303 is, what that patent is. [00:14:16] Speaker 01: And I want to put it in context if I could. [00:14:18] Speaker 01: When you look at the 303, a prime example it gives of what it is trying to accomplish is simply trying to transfer information more efficiently from point A to point B. When you look at page 26 of the appendix, you see exhibit A, and that's what it shows, box A to box B. That's what it's trying to do. [00:14:37] Speaker 01: So in a real life example, what it's talking about is the following. [00:14:41] Speaker 01: I'm a police officer at police station A. I want to transfer information and be able to describe [00:14:48] Speaker 01: who the suspect is or missing person is to a police officer at Station B. Like you said, Judge Raina to Judge Stoll. [00:14:57] Speaker 01: So how do we accomplish that? [00:15:00] Speaker 01: What the 303 says is we're going to do that on a feature by feature approach. [00:15:05] Speaker 01: So what we're going to do is assign numbers. [00:15:07] Speaker 01: We're going to assign numbers to things. [00:15:09] Speaker 01: We're going to assign a number to the mouth. [00:15:11] Speaker 01: We're going to assign a number to the nose. [00:15:12] Speaker 01: We're going to assign a number to the eyebrows. [00:15:16] Speaker 01: The problem with that, of course, from the standpoint of patentability is that's conventional. [00:15:20] Speaker 01: That's what was already happening out there. [00:15:22] Speaker 01: It's the exact same thing that the identikit was doing since the 1950s, a situation where what you would do with mylar transparencies is you would have images of the nose, the mouth, the eyes that would be assigned a value like nose number one, mouth number two, eyes number three, and you would simply transfer that information by picking up the phone or [00:15:45] Speaker 01: or sitting it face to face to the person at police station B, here's what the code is. [00:15:50] Speaker 01: You have your libraries independently and you can put these same milers together. [00:15:54] Speaker 01: So in addition to the identikit, importantly here, when you look at the patent itself, this is an interesting concession that plaintiff's council wants to avoid. [00:16:04] Speaker 01: Look at Kakiyama. [00:16:05] Speaker 01: Look at the prior art that's not only described [00:16:09] Speaker 01: in the patent, but actually incorporated into the patent. [00:16:12] Speaker 01: And what are we talking about there? [00:16:14] Speaker 01: We're talking about encoding on a feature-by-feature basis. [00:16:18] Speaker 04: Sounds like you're talking about 102 and 103 rather than abstractness. [00:16:24] Speaker 01: Well, first of all, with respect to abstract, I'm not talking about that. [00:16:27] Speaker 01: What I'm talking about is what was conventional. [00:16:29] Speaker 01: Because as we know, what this needs to be is unconventional. [00:16:32] Speaker 01: But attacking more directly just the Alice test [00:16:37] Speaker 01: under what this patent is directed to. [00:16:39] Speaker 01: So what is it directed to? [00:16:42] Speaker 01: Again, the patent answers that question. [00:16:44] Speaker 01: It was interesting, Judge Ryan, and one of the points that I had in my argument was the precise one you made, which is, what does the Summary of Invention say about this? [00:16:53] Speaker 01: The Summary of Invention says it provides a novel method and apparatus for encoding images. [00:16:57] Speaker 01: That's one reason we know that. [00:16:59] Speaker 01: That's what it's directed at. [00:17:00] Speaker 01: Another reason is the title. [00:17:02] Speaker 01: What's the title of the patent? [00:17:04] Speaker 01: Method and Apparatus for Encoding and Decoding Image Data. [00:17:07] Speaker 01: That's what this is about. [00:17:09] Speaker 05: Is it your position that any method and apparatus for encoding and decoding is not eligible under 101? [00:17:17] Speaker 01: Not necessarily. [00:17:18] Speaker 01: What you'd have to do there, if it's encoding and decoding, again, this is an age-old concept. [00:17:23] Speaker 01: That's the Morris Code. [00:17:24] Speaker 01: That's a periodic table. [00:17:25] Speaker 01: That's when you go to a fast food restaurant and you say, instead of burger, fries, and a Coke, I want combination number one. [00:17:31] Speaker 01: That's encoding. [00:17:31] Speaker 01: That's simply assigning a number to a thing. [00:17:34] Speaker 01: That's age-old. [00:17:36] Speaker 01: That is abstract. [00:17:38] Speaker 01: Now you move to step two. [00:17:39] Speaker 01: Is there an inventive concept? [00:17:42] Speaker 05: You're talking about the particular case here still. [00:17:44] Speaker 01: In this particular case, yes. [00:17:46] Speaker 05: You're not addressing my question, which is whether it's your position that all encoding and decoding is ineligible. [00:17:53] Speaker 01: I think if it's just encoding, decoding, simply assigning numbers to a thing, such as here, that that is an abstract idea. [00:18:01] Speaker 01: That doesn't mean it's patent ineligible. [00:18:03] Speaker 01: Again, if there is something in addition to that, a transformative step of some sort, [00:18:08] Speaker 01: that actually changes the nature and substance of the patent, and it actually is providing some type of technological solution to a technological problem that actually significantly enhances or improves a computer's functionality or capability, then yes, that's patentable. [00:18:26] Speaker 01: And that's Enfish. [00:18:28] Speaker 01: That's Amdocs. [00:18:29] Speaker 01: That's Bascom. [00:18:30] Speaker 01: That's DDR. [00:18:31] Speaker 01: That's Macro. [00:18:33] Speaker 01: Those five cases taken together [00:18:37] Speaker 02: tell you that's the test. [00:18:38] Speaker 02: Counselor, what's your response to your colleague's argument to us that within claim one, we find the compression limitation? [00:18:53] Speaker 01: Well, you don't. [00:18:55] Speaker 01: There is no compression that's happening here. [00:18:57] Speaker 01: This patent is not about compression. [00:19:02] Speaker 01: This patent does nothing with ones and zeros or anything like that. [00:19:06] Speaker 01: All it does is do a feature by feature encoding method. [00:19:10] Speaker 01: That's what it concerns. [00:19:12] Speaker 01: It's basically using numbers to represent pictures. [00:19:15] Speaker 01: It's encoding. [00:19:16] Speaker 01: There's not compression that's going on here. [00:19:17] Speaker 01: This isn't a JPEG situation or otherwise. [00:19:20] Speaker 01: What happened when you look at the specification is they identified pixel by pixel, but their solution is not pixel by pixel. [00:19:28] Speaker 01: They're not doing anything with a pixel by pixel approach. [00:19:30] Speaker 01: What they're doing is a feature by feature approach. [00:19:33] Speaker 01: Again, if you step back and understand what they're trying to accomplish here, [00:19:36] Speaker 01: How do we more efficiently transfer information from point A to point B? [00:19:40] Speaker 01: Sounds a lot like short ridge. [00:19:42] Speaker 01: Same type of situation. [00:19:43] Speaker 01: How they did it here was to add an algorithm. [00:19:46] Speaker 01: What they did was take the conventional encoding and decoding process that was in place in identikit. [00:19:53] Speaker 01: Same process. [00:19:54] Speaker 01: And they just migrated that to a computer. [00:19:57] Speaker 01: And how is a computer used? [00:19:59] Speaker 01: It's used in the generic [00:20:01] Speaker 01: everyday fashion to do the types of things that computers do. [00:20:04] Speaker 01: It's not changing the computer in any way. [00:20:08] Speaker 01: It's not increasing or affecting the functionality or the capabilities of the computer. [00:20:13] Speaker 01: You're simply taking, frankly, the identikit and you're migrating it to a computer. [00:20:18] Speaker 01: You're assigning numbers to things, to facial features, and then you're transferring that information. [00:20:26] Speaker 01: And interestingly enough, keep in mind that, as the court pointed out, [00:20:31] Speaker 01: This doesn't even require a computer. [00:20:33] Speaker 01: Keep in mind that you can transfer that information verbally over the phone. [00:20:38] Speaker 01: This is not a technological solution to a technological problem. [00:20:43] Speaker 05: It has technological advantages, right, in the sense that it is true that you'd be transmitting less information and you would have to store less information, although you would have to have some sort of database that contained all the various images that correspond to [00:20:59] Speaker 05: the various feature sets, numbers. [00:21:02] Speaker 01: I'll agree with you that if you want to define technologically that broadly, perhaps arguably. [00:21:07] Speaker 01: But let's think about that. [00:21:08] Speaker 05: I just said there's an advantage. [00:21:10] Speaker 01: There's an advantage. [00:21:10] Speaker 01: I don't think it's a technological advantage. [00:21:12] Speaker 01: There's a potential advantage. [00:21:13] Speaker 01: Was there an advantage to the identikit? [00:21:15] Speaker 01: Absolutely so. [00:21:17] Speaker 01: This is the identikit migrated to a computer. [00:21:19] Speaker 01: If this did something more, if there's something additional that actually changed the actual capabilities or functionalities of the computer, [00:21:26] Speaker 01: Then we would be talking about ENFISH more directly. [00:21:29] Speaker 05: How do you distinguish ENFISH? [00:21:30] Speaker 01: Well, ENFISH is exactly that. [00:21:32] Speaker 01: Remember what the court said in ENFISH was the following, that it's an unconventional solution, an unconventional technological solution to a technological problem that greatly enhanced and improved the computer's functionality. [00:21:45] Speaker 01: It actually was dealing with distributed architecture there. [00:21:49] Speaker 01: So what you're talking about is actually changing the capabilities of the computer itself. [00:21:52] Speaker 01: This doesn't do anything to the memory. [00:21:54] Speaker 01: This doesn't do anything to storage. [00:21:56] Speaker 01: This doesn't do anything to transmission. [00:21:58] Speaker 01: The computer is still operating in the same fashion. [00:22:00] Speaker 01: You're not introducing something in addition to what the computer already has. [00:22:05] Speaker 01: What you're doing here simply is taking again an age-old concept of assigning a number to a picture, and you're moving it onto a computer. [00:22:14] Speaker 01: And this court has again and again said, that's not enough. [00:22:17] Speaker 01: Think about what happened when this patent went through its history. [00:22:20] Speaker 01: This isn't the first time it faced 101. [00:22:24] Speaker 01: It was determined ineligible under section 101 by the PTO originally. [00:22:29] Speaker 01: So what did they do? [00:22:30] Speaker 01: They slapped on a computer. [00:22:32] Speaker 01: And that was okay at that point under NRELIPAT. [00:22:35] Speaker 01: Then what happened? [00:22:36] Speaker 01: We flash ahead to the re-exam process. [00:22:38] Speaker 01: What happens at that point? [00:22:39] Speaker 01: The court looks at it, or excuse me, the PTO looked at it and concluded that everything described in that patent is conventional. [00:22:46] Speaker 01: It's already out there. [00:22:48] Speaker 01: In order to allow it, what did they have to do? [00:22:51] Speaker 01: They had to add an algorithm. [00:22:53] Speaker 01: And as we know from Fluke and any number of other cases, that adding a mathematical algorithm doesn't render an eligible patent patentable. [00:23:03] Speaker 01: And think about that algorithm itself. [00:23:07] Speaker 01: Look at what it says. [00:23:07] Speaker 01: It's a very broad-based, nondescriptive algorithm. [00:23:11] Speaker 01: It simply requires a simple and single multiplication operation. [00:23:15] Speaker 01: It doesn't even tell you how that's going to work. [00:23:18] Speaker 01: That's not found in the claims. [00:23:20] Speaker 01: You have to go to specifications to understand how that algorithm, an abstract idea in itself, works. [00:23:27] Speaker 01: What you have here at base, your honor, is the following. [00:23:31] Speaker 01: You have an abstract idea of encoding and decoding. [00:23:35] Speaker 01: They've added a generic computer and they've added another abstract idea of an algorithm. [00:23:41] Speaker 01: And that doesn't overcome the Alice test. [00:23:44] Speaker 01: There's nothing that's inventive. [00:23:46] Speaker 01: There's certainly not a transformative step here. [00:23:50] Speaker 01: This is in the heartland of Alice. [00:23:53] Speaker 01: It's very similar, as I said, to short-ridge. [00:23:56] Speaker 01: You've got an algorithm that allows you to transfer information more efficiently, arguably. [00:24:01] Speaker 01: That's it. [00:24:05] Speaker 01: The court has no further questions. [00:24:07] Speaker 01: Let me see if I can wrap up briefly for you. [00:24:15] Speaker 01: So I think it's important when you think about this and you think about how [00:24:19] Speaker 01: both the patent is written and how my colleague wants to address it. [00:24:23] Speaker 01: What he's really doing is dressing up words using different jargon, code factor, the image code. [00:24:33] Speaker 01: When you break that down, what you find is that's the same types of things were already out there in the prior art. [00:24:38] Speaker 01: What you're talking about is just a fancy name for a number that represents a facial feature. [00:24:45] Speaker 01: That was already being done out there. [00:24:46] Speaker 01: That's kakiama. [00:24:47] Speaker 01: That is the identikit. [00:24:49] Speaker 01: There is literally no difference between the identikit and this other than adding a generic computer and an algorithm. [00:24:58] Speaker 01: And importantly, in Kakayama, you don't even have any difference other than the fact that it doesn't have an algorithm. [00:25:06] Speaker 01: Kakayama has a computer. [00:25:07] Speaker 01: You're utilizing a computer. [00:25:08] Speaker 01: It's done within a computer environment. [00:25:10] Speaker 01: But keep in mind, again, as we step back, we look at what the test is here. [00:25:15] Speaker 01: In my view, when you put those cases, that handful of cases together, [00:25:18] Speaker 01: in which you derive the idea that it really does have to be a technological solution to a technological problem that greatly advances the computer's capabilities. [00:25:26] Speaker 01: Again, we don't have a technological problem to begin with, and we certainly don't have a technological solution that is unconventional. [00:25:36] Speaker 01: That's the critical word in the beginning of that test. [00:25:39] Speaker 01: It has to be unconventional. [00:25:40] Speaker 01: There is nothing unconventional. [00:25:41] Speaker 05: Does the technological solution have to be outside of the abstract idea or the technological? [00:25:47] Speaker 05: For step two, [00:25:49] Speaker 05: I believe Alice says, you know, when you look at the claims as an ordered combination or individually, there's something more than the abstract idea there. [00:25:57] Speaker 05: There's this technological advantage. [00:26:00] Speaker 05: Does that have to be outside of the abstract idea itself? [00:26:02] Speaker 05: What if the abstract idea itself is the thing that provides the technological advantage? [00:26:09] Speaker 01: I think that just working it through, if you've got step one, is it an abstract idea? [00:26:15] Speaker 01: And if it is an abstract idea, I think it's disqualified as a result of that. [00:26:19] Speaker 01: What you see, I'm struggling a little bit with your honor and the fact I'm running through all the cases and all the scenarios and thinking through, has there ever been a situation where the abstract idea is actually the transformative aspect of it? [00:26:32] Speaker 01: And I can't think of one. [00:26:33] Speaker 01: And it's hard for me to imagine where if you've got an abstract, a truly abstract idea, that that is actually the transformative step. [00:26:42] Speaker 05: technological advantage. [00:26:43] Speaker 01: Yeah, because, you know, by the nature of abstract, what you're talking about is something that is fundamental. [00:26:48] Speaker 05: Well, the abstract idea here is the encoding and decoding. [00:26:51] Speaker 05: Yes. [00:26:51] Speaker 05: To the extent that there's a technological advantage in that the data is smaller and it's easier to transmit, does that come by virtue of the abstract idea itself? [00:27:02] Speaker 05: Well, here... Could that possibly be what is meant by the technological advantage in step two? [00:27:08] Speaker 01: Well, there... No. [00:27:09] Speaker 01: No. [00:27:10] Speaker 01: First of all, [00:27:11] Speaker 01: The abstract idea of encoding and decoding doesn't provide any type of technological transformative step. [00:27:17] Speaker 01: Again, when you think about encoding and decoding, you're back to the determination of what is abstract or not. [00:27:23] Speaker 01: And under abstract, of course, as this court has addressed on a number of occasions, if it's something that's fundamental, something that's prevalent out there, it's abstract. [00:27:30] Speaker 01: That's telling you that it's conventional. [00:27:33] Speaker 05: You're saying some things that are conventional are abstract? [00:27:36] Speaker 05: I'm confused by that statement. [00:27:38] Speaker 01: Well, if you've got something that is [00:27:40] Speaker 01: Fundamental. [00:27:42] Speaker 01: It's out there. [00:27:43] Speaker 01: Been in place for some number of years and things like that. [00:27:46] Speaker 01: That's what Alice talks about in other cases. [00:27:48] Speaker 01: So if you've got something like this, encoding and decoding that has been in place for a century or so, that is an abstract idea. [00:27:57] Speaker 01: It's not something that gets to the inventiveness. [00:28:00] Speaker 05: I disagree with your statement that Alice says if something's conventional, then it's abstract. [00:28:08] Speaker 05: I can understand the district court's position that the idea of assigning numbers to different images might be abstract, but I'm not sure about saying it's abstract because it's convention. [00:28:18] Speaker 05: Well, when you get to the idea, I think this is something Judge Lurie alluded to earlier about some confusion about 102 and 103 versus looking at whether [00:28:27] Speaker 05: a claim is directed to an abstract argument. [00:28:29] Speaker 00: There is always that somewhat of attention though. [00:28:31] Speaker 01: Mayo said that when you're really looking at the 101 determination, you obviously import somewhat of a 102-103 analysis. [00:28:38] Speaker 01: Because in some way what you're trying to do is understand whether something is conventional or not. [00:28:42] Speaker 01: And that's why as you step back and you look at the totality of the test under Alice, it really is trying to reach and preclude [00:28:51] Speaker 01: patents that aren't providing an unconventional technological solution to a technological problem, that again is transformative. [00:28:59] Speaker 01: And when you apply that test here, what you find is that the 303 patent doesn't meet that standard. [00:29:08] Speaker 04: Again, what it is is something that's been... Thank you, Mr. Paris. [00:29:10] Speaker 04: I think we have your case and your time has expired. [00:29:14] Speaker 04: Mr. Baker has some rebuttal time. [00:29:17] Speaker 00: Thank you, Your Honor. [00:29:18] Speaker 00: obviously request the court affirm the lower court's decision. [00:29:21] Speaker 00: Thank you very much. [00:29:29] Speaker 03: Thank you, Your Honors. [00:29:30] Speaker 03: I would just respond to the last line of questioning by just calling the court's attention to the fact that in Deer, the Supreme Court appellate claims that used a mathematical formula and stated that an application of a law of nature or mathematical formula [00:29:45] Speaker 03: to a known structure or process may well be deserving of patent protection." [00:29:49] Speaker 03: And they reaffirmed that in Mayo and in Alice. [00:29:52] Speaker 03: And this court has reaffirmed that also in Enfish, Bascom, and McRoe. [00:29:57] Speaker 03: And the patent here clearly describes a problem with the existing technological approaches to image coding. [00:30:05] Speaker 03: It provides a specific technological improvement to that. [00:30:09] Speaker 03: And that is enough to pass muster under ALICE to provide an improvement to an existing technological process. [00:30:22] Speaker 03: And let me just discuss briefly the identikit issue. [00:30:26] Speaker 03: As I explained before, even if you accept identikit as prior art and consider it in this case, it did not encode the information the same way. [00:30:35] Speaker 03: It did not use code factors. [00:30:37] Speaker 03: It did not multiply code factors. [00:30:39] Speaker 03: by the image code to generate a single composite image code. [00:30:43] Speaker 03: It simply concatenated the different elements together. [00:30:46] Speaker 03: And therefore, this pattern, even if you consider identikit, it provides an improvement over that. [00:30:52] Speaker 03: And Judge Lurie, you're right. [00:30:53] Speaker 03: Really, identikit should be considered, if at all, under Section 102 and 103. [00:30:58] Speaker 03: A specific technological problem was described. [00:31:02] Speaker 03: The fact that they can go back and find some manual analog from 50 years ago [00:31:07] Speaker 03: You know, that may raise questions under 102 and 103, but it doesn't mean that this invention was not solving a real problem that existed with a real technological process. [00:31:18] Speaker 03: Thank you, Your Honor. [00:31:19] Speaker 04: Thank you, Mr. Baker. [00:31:20] Speaker 04: We will take the case under advisement.