[00:00:00] Speaker 02:
This is two-way media, limited versus Comcast, Verizon, et al.

[00:00:07] Speaker 02:
2016, 25, 31, and 32.

[00:00:10] Speaker 02:
Mr. Hein, when you're ready.

[00:00:18] Speaker 01:
May it please the court.

[00:00:20] Speaker 01:
In 1995, there was no effective way to reliably deliver media streams over the internet to a large number of users.

[00:00:30] Speaker 01:
The claims in the two-way media patents recite critical aspects of the network architecture solution that it developed to overcome those problems.

[00:00:42] Speaker 01:
I'd like to begin by focusing on 187 Claim 1 to explain exactly how the claim recites those architectural features.

[00:00:51] Speaker 01:
And for that, I would respectfully direct the Court's attention to page 31 through 33 of the opening blue brief.

[00:01:00] Speaker 01:
And on those pages is a chart which includes the language of 187 Claim 1, as well as the constructions that were used in this case.

[00:01:12] Speaker 01:
Those constructions are the constructions that had been approved in prior litigation by two district courts, Chief Judge Head from the Southern District of Texas and Judge Garcia from the Western District of Texas.

[00:01:25] Speaker 01:
They were adopted for purposes of the 101 analysis in this case.

[00:01:29] Speaker 01:
I'm going to focus the court, given the limited time, on the controlling the routing limitation, which appears on page 32.

[00:01:38] Speaker 01:
I'll note in passing before I do that that the converting limitation, the first limitation after the preamble in this claim, implicates, it relates to the source server that is responsible for generating the packetized audiovisual streams that are going to be sent over the packetized network.

[00:01:59] Speaker 01:
The controlling the routing limitation is directed to and recites aspects of both the distribution architecture and aspects of the control architecture.

[00:02:11] Speaker 01:
First, if we look at the construction, which is in the italicized portion after the underlying... Where do you find the architecture?

[00:02:17] Speaker 03:
In the claims or in the specification?

[00:02:20] Speaker 01:
In the claims, Your Honor.

[00:02:23] Speaker 01:
The claims recite critical aspects of the architecture.

[00:02:26] Speaker 01:
If we look at the construction of controlling the routing,

[00:02:28] Speaker 01:
First, it requires a designated group of intermediate computers.

[00:02:34] Speaker 01:
That's in the construction of controlling the routing, directing a portion of the routing path taken by the stream of packets from one of a designated group of intermediate computers.

[00:02:45] Speaker 01:
The computers are intermediate because they're between the source server that is related to the converting limitation and between the users in a packet switched network.

[00:02:58] Speaker 01:
The intermediate computers that are resided in this construction.

[00:03:02] Speaker 03:
Just to direct me, I'm kind of lost here.

[00:03:04] Speaker 03:
Are you talking about the 187 pattern?

[00:03:06] Speaker 01:
I am, Your Honor.

[00:03:06] Speaker 01:
187, claim one.

[00:03:08] Speaker 01:
And if you look at page 32 of the opening brief, the construction for controlling the routing that has been adopted in this case, the same construction that was adopted in prior litigation in the district courts requires, for that limitation, directing a portion of the routing path

[00:03:28] Speaker 01:
taken by the stream of packets from one of a designated group of intermediate computers to the user in response to one or more signals from the user selecting the stream.

[00:03:39] Speaker 01:
That is the construction for that term.

[00:03:42] Speaker 01:
That construction recites specifically a layer of intermediate computers in the distribution system that correlates to the media servers that are in figure one of the 187 patent.

[00:03:56] Speaker 01:
That's on appendix page 80.

[00:04:00] Speaker 01:
What that means in the context of this claim in a packet switch network, what that requires is the addition of a distribution layer within something like the internet that is a packet switch network.

[00:04:15] Speaker 01:
So you've got a modification that has to occur to a conventional internet delivery platform because of the requirement

[00:04:26] Speaker 01:
of a designated group of intermediate computers in that packet switch network.

[00:04:31] Speaker 01:
That is entirely unconventional.

[00:04:35] Speaker 01:
In addition to that aspect of the distribution architecture, which requires the source server, the intermediate computers, and the user, similar to what's shown in Figure 1 with the primary server, the media servers, and the user, the claim also specifies a very specific control sequence.

[00:04:52] Speaker 02:
The district court said that the

[00:04:55] Speaker 02:
Patent points to the architecture of the system as the technological innovation, but that the claims do not recite that.

[00:05:06] Speaker 01:
Yes, Your Honor.

[00:05:07] Speaker 01:
That's exactly what he said, and that's where he committed legal error in this case.

[00:05:11] Speaker 01:
He did not take into account these claim constructions.

[00:05:14] Speaker 01:
He did not look at them and recognize that the claims require the architecture that's shown in Figure 1.

[00:05:21] Speaker 01:
This claim construction of controlling the routing specifically requires the architecture.

[00:05:26] Speaker 01:
Isn't this a judgment on the pleadings?

[00:05:29] Speaker 01:
It is, Your Honor, absolutely.

[00:05:32] Speaker 01:
And so necessarily, the judge, as part of that, needs to infer any facts, any findings in our favor.

[00:05:39] Speaker 01:
And I would submit he didn't do that, certainly with respect.

[00:05:42] Speaker 03:
So where do you infer those facts?

[00:05:45] Speaker 03:
What is the meaning of it?

[00:05:46] Speaker 03:
Don't you look under the test that we've established.

[00:05:50] Speaker 03:
or that we didn't establish a Supreme Court, one that we follow.

[00:05:54] Speaker 03:
In the first step, we look at what are the claims directed to.

[00:05:58] Speaker 03:
And reading the claims, I don't see the architecture that I hear you say.

[00:06:07] Speaker 01:
Your Honor, if you're trying to figure out what the claims are directed to, as the Court recognized in the McRoe decision, you have to take into account the constructions.

[00:06:18] Speaker 01:
And in this case, the constructions go to the heart and soul of the architecture that is used for this controlling operation.

[00:06:24] Speaker 01:
It is the entire focus of the specification, and it's also right here in the claims in these constructions.

[00:06:31] Speaker 01:
There's a designated group of intermediate computers.

[00:06:33] Speaker 01:
There's a control sequence that requires directing the streams.

[00:06:40] Speaker 01:
Specifically, it requires directing three aspects of it.

[00:06:44] Speaker 01:
Directing a portion of the routing path.

[00:06:46] Speaker 01:
That means you direct a portion, not the entire routing path.

[00:06:50] Speaker 01:
Specifically, you're directing the last leg of the routing path from one of the designated group of intermediate computers to the user.

[00:07:01] Speaker 01:
So you direct the stream from one of the intermediate computers to the user.

[00:07:07] Speaker 01:
Because of the construction, there are multiple...

[00:07:11] Speaker 01:
a designated group of intermediate, one of a designated group of intermediate computers.

[00:07:15] Speaker 01:
That means there are multiple possible routing paths through different intermediate computers.

[00:07:20] Speaker 01:
You're gonna direct one of those and you're gonna do it in response to a user selection signal.

[00:07:25] Speaker 01:
So what we have here is a situation where there is a distribution layer within the internet that doesn't conventionally exist.

[00:07:34] Speaker 01:
There's a distribution layer.

[00:07:36] Speaker 01:
It is controlled by a particular control sequence

[00:07:40] Speaker 01:
that is going to assign one of a designated group of intermediate computers to the user when the user requests the stream.

[00:07:48] Speaker 01:
It's a dynamic aspect.

[00:07:50] Speaker 01:
This entire operation is described in great detail in the specification in figures 8A, 8B, and 8C.

[00:07:59] Speaker 01:
And the way that the system works there, which is reflected in these claims, is that first a user selects one of the streams that it wants to listen to, it wants to watch,

[00:08:08] Speaker 01:
That then triggers a request that goes to the control architecture.

[00:08:14] Speaker 01:
In response to that, the control architecture generates a sorted list of media servers that the system can go to in order to get the stream.

[00:08:25] Speaker 01:
And then in response to that, the user goes to the first one on the sorted list and asks for the stream and gets the stream.

[00:08:30] Speaker 01:
That's the directing that we're talking about specifically in this claim.

[00:08:34] Speaker 01:
So what this claim requires is a distribution layer added to the internet.

[00:08:38] Speaker 01:
That's not there.

[00:08:39] Speaker 01:
It's completely an unconventional arrangement of the components.

[00:08:44] Speaker 01:
It's a new layer within the internet with a control sequence that is specifically going to direct the users not back to the source server that's originally supplying the streams.

[00:08:56] Speaker 01:
It's going to direct the users specifically to one of a multiple potential intermediate computers

[00:09:02] Speaker 01:
in order to get that stream and to get it sent to the user.

[00:09:07] Speaker 02:
This is a 20-year-old patent, right?

[00:09:11] Speaker 01:
It is expired, Your Honor.

[00:09:12] Speaker 02:
And it drafted under old standards.

[00:09:17] Speaker 01:
Absolutely, Your Honor.

[00:09:19] Speaker 01:
It was drafted under old standards.

[00:09:20] Speaker 02:
The question is whether all that you're talking about is in the claims.

[00:09:26] Speaker 01:
I think what I'm talking about, Your Honor, are the constructions that were adopted in this case.

[00:09:30] Speaker 01:
I mean, that's specifically what I'm pointing to.

[00:09:33] Speaker 01:
Those constructions have been applied, as I said, by prior district courts in two different litigations.

[00:09:40] Speaker 01:
And so that is the construction we're using.

[00:09:43] Speaker 01:
That's the construction that the district court used.

[00:09:45] Speaker 01:
It requires specific hardware.

[00:09:48] Speaker 01:
It requires a specific control sequence.

[00:09:52] Speaker 01:
That architecture with those designated group of intermediate computers and with that control sequence is not conventional.

[00:10:00] Speaker 01:
in a packet switch network like the internet.

[00:10:03] Speaker 01:
In the internet, you went from the source computer, you apply a destination address, and then the stream is routed in an uncontrolled, unassigned fashion to the user.

[00:10:17] Speaker 01:
There's no way to control any particular point along the way where that stream is going to go.

[00:10:22] Speaker 01:
This construction specifically requires going through a designated one

[00:10:29] Speaker 01:
one of a designated group of intermediate computers.

[00:10:32] Speaker 01:
That doesn't exist in a normal internet routing situation.

[00:10:36] Speaker 01:
What difference does that make?

[00:10:39] Speaker 01:
The reason it makes a difference is it improves the system and it makes it much more reliable.

[00:10:43] Speaker 01:
It fans out the distribution away from the source server.

[00:10:47] Speaker 01:
As it's described in column 3, lines 9 through about 28, you can fan out the distribution away from the source server.

[00:10:56] Speaker 01:
You can move it closer to the users.

[00:10:59] Speaker 01:
You reduce network traffic because you send a single stream to just the intermediate computers, the media computers for each channel that they're going to carry.

[00:11:09] Speaker 01:
And then from that point, the users are directed to that intermediate computer that's closer to them.

[00:11:16] Speaker 01:
And by directing the routing, you can pick specific ones of those intermediate computers and avoid network congestion that might exist.

[00:11:24] Speaker 01:
You can avoid bottlenecking problems.

[00:11:26] Speaker 01:
You can balance the load among these intermediate distribution computers.

[00:11:31] Speaker 01:
And so it changes really the paradigm where instead of going from the source, as typically happens in the internet to the user, you've added this entire layer of distribution servers and a control mechanism so that the user is getting the stream much closer.

[00:11:47] Speaker 03:
But at the end of the day, if the user is receiving a scramble signal,

[00:11:52] Speaker 03:
either under this method or some other method.

[00:11:58] Speaker 03:
That has to be fixed, correct?

[00:12:00] Speaker 01:
Yes, Your Honor.

[00:12:01] Speaker 01:
The packets are numbered.

[00:12:02] Speaker 03:
But how do you know how to correct that?

[00:12:06] Speaker 03:
How do you know that you need to correct?

[00:12:08] Speaker 03:
How do you know that the user has a problem?

[00:12:12] Speaker 03:
And the problem is that you have to receive a signal from the user receiver telling you that there's a problem.

[00:12:20] Speaker 01:
Or the way that it

[00:12:21] Speaker 01:
would conventionally work, your honor, because it's a best efforts internet is you just don't get the packets.

[00:12:27] Speaker 01:
If they don't arrive in time and you're streaming, you're playing it back as you get it.

[00:12:30] Speaker 01:
That's what streaming means.

[00:12:32] Speaker 01:
You're playing it back as you get it.

[00:12:34] Speaker 01:
If the packets don't get there in time.

[00:12:37] Speaker 03:
Under the conventional system and looking at your system, either way, you're relying on a user receive signal.

[00:12:43] Speaker 03:
I mean, your claims say that.

[00:12:45] Speaker 03:
Absolutely.

[00:12:46] Speaker 03:
But you're really not claiming that part of the method.

[00:12:51] Speaker 01:
You're claiming the control architecture and the distribution architecture that eliminates some of that problem.

[00:12:57] Speaker 01:
The reason the packets are delayed, the reason they don't get there in time is because of the network congestion that exists.

[00:13:03] Speaker 01:
That's one issue.

[00:13:04] Speaker 03:
I understand that.

[00:13:05] Speaker 03:
I just want to make sure that I also understand correctly that you're not claiming the user-received signals.

[00:13:12] Speaker 01:
Well, it's part of the claim that the user does receive.

[00:13:15] Speaker 01:
That's not your invention, though.

[00:13:17] Speaker 01:
No, that's not part of the invention.

[00:13:19] Speaker 01:
It's the intermediate layer between the source server and the users and the control mechanism, the control sequence, that is responsible for the interaction of the user, the control architecture, and the media servers in order to have the stream get assigned from one of those intermediate computers and passed to the user.

[00:13:39] Speaker 03:
So let's say that we don't adopt your argument

[00:13:43] Speaker 03:
of relying on construction of the claims as part of the step one analysis.

[00:13:50] Speaker 03:
What does that do to your argument?

[00:13:52] Speaker 01:
I think there's still a question there about what the court means by directing in its step one analysis.

[00:13:57] Speaker 01:
It says direct the sent information.

[00:13:59] Speaker 01:
What does that mean?

[00:14:00] Speaker 01:
I mean, the only possible context for that, according to this patent, is it's the directing that's done by the control sequence.

[00:14:08] Speaker 01:
Putting that aside, it puts us into step two.

[00:14:10] Speaker 01:
And the question is whether or not

[00:14:12] Speaker 01:
you know, an unconventional arrangement to deliver audio-visual streams in a packet-switched internet-type context.

[00:14:21] Speaker 01:
With that, I'll reserve the rest of my time here.

[00:14:23] Speaker 02:
Thank you, Mr. Heim.

[00:14:25] Speaker 02:
We'll give you your three minutes back.

[00:14:27] Speaker 02:
Mr. Ferrell?

[00:14:38] Speaker 00:
Thank you, Your Honors, and may it please the Court

[00:14:42] Speaker 00:
Two-way's appeal in this case relies upon convincing the court that its claims are something that they are not.

[00:14:48] Speaker 00:
The claims at issue do not specify an end-to-end architecture.

[00:14:52] Speaker 00:
They do not provide solutions to network congestion problems or an improved method of load balancing.

[00:14:59] Speaker 00:
The words architecture, hierarchy, load balancing never appear in any of the asserted claims or even the proposed construction that Two-way has offered and that we're using at this stage of the case.

[00:15:12] Speaker 00:
As this court and the Supreme Court has often said, it is the asserted claims that are the focus of the Section 101 analysis, not claims that might have been written on some other embodiment in the patent or even on a commercial product.

[00:15:28] Speaker 03:
So, Counselor, how do you respond to your opponent's argument that when you take into account the construction that's been given to the claims, that it's the construction that gives the architecture

[00:15:41] Speaker 03:
that we're looking at or we should look at.

[00:15:46] Speaker 00:
Your Honor, the construction is not sufficient to incorporate an architecture into this claim.

[00:15:56] Speaker 00:
What is required for 2A's appeal is actually an embellishment of that construction in order to get to their features that my friend discussed during his argument.

[00:16:09] Speaker 00:
For example, 2A

[00:16:11] Speaker 00:
argues that its construction mandates a network architecture that shifts the stream load, and I'm quoting from the brief, shifts the stream load away from the source server and distributes it across the intermediate computers or, quote, reduces network congestion or balances the load.

[00:16:29] Speaker 00:
Nothing in the claims, as construed by Two-Way, requires these outcomes or even attempts to achieve these outcomes.

[00:16:37] Speaker 00:
What step one of the ALICE test looks at

[00:16:40] Speaker 00:
is the character of the claims as a whole, to use the language from electric power group.

[00:16:45] Speaker 00:
There's no plausible reading of this claim as construed that could lead to the conclusion that the character of this claim as a whole is a network architecture.

[00:16:55] Speaker 00:
When that architecture is neither recited explicitly in the claim or the construction, counsel for Two Way referred the court to column three of the patent, which I had focused on as well.

[00:17:09] Speaker 00:
Because it's interesting, column 3 of the patent around line 17, line 17 through approximately 29, talks about, it starts with the topology of the Internet dictates the ideal.

[00:17:27] Speaker 00:
It says appendix 104, column 3 at 17 through 29.

[00:17:37] Speaker 00:
This is a detailed description of the embodiment that talks about places where the media servers might be located in their architecture, how the topology of the internet dictates the ideal placement of media servers.

[00:17:52] Speaker 00:
And then it goes on to talk about how media servers might be placed here.

[00:17:57] Speaker 00:
They might be placed there.

[00:17:59] Speaker 00:
You might achieve different goals with one or the other.

[00:18:03] Speaker 00:
None of that is recited in the claim.

[00:18:05] Speaker 00:
in the claim that says where the media server should be placed.

[00:18:09] Speaker 00:
In fact, Your Honors, I would submit this claim, as construed by Two-Way, focusing even on the controlling the routing claim element, which Two-Way has, this would be satisfied in a packet-based network such as the Internet that had, say, three computers between the source and the user.

[00:18:30] Speaker 02:
And what about Mr. Himes' point that at least two other courts have

[00:18:36] Speaker 02:
bless these claims under 101.

[00:18:40] Speaker 00:
Your honors, no.

[00:18:41] Speaker 00:
No other court has looked at these claims under Section 101.

[00:18:45] Speaker 00:
There's been no prior Section 101 challenge to these claims.

[00:18:49] Speaker 02:
So, did you disagree with him, or did I misunderstand what he was saying?

[00:18:52] Speaker 00:
I think there may have been a misunderstanding about what he said.

[00:18:55] Speaker 00:
I don't think Tooay has ever contended that these claims have been... But I thought I saw something in the brief, too.

[00:19:00] Speaker 00:
They've been subject to Section 102 and 103 challenges by prior courts, but no previous litigant has challenged these claims under Section 101.

[00:19:11] Speaker 00:
So this construction, if you just had an architecture, a network, which the internet surely is, but let's just focus it.

[00:19:22] Speaker 00:
You have source servers of sources of information.

[00:19:26] Speaker 00:
You have just three intermediate computers.

[00:19:29] Speaker 00:
And let's say in response to a user selecting content, all of the content, no matter what, flows through a single intermediate computer, and the other two are idle.

[00:19:41] Speaker 00:
Now that wouldn't reduce load balance, that wouldn't balance loads, it wouldn't reduce congestion, it wouldn't achieve any of these goals, and yet, I would submit, it satisfies two ways construction, because two ways construction

[00:19:54] Speaker 00:
doesn't require any means for distributing content across these media servers.

[00:20:00] Speaker 00:
It doesn't require any intelligence in the media servers for forwarding content to users.

[00:20:06] Speaker 00:
This is why the district court rejected Two Way's argument about this architecture, because the architecture is simply not found in the claims.

[00:20:18] Speaker 00:
I would note also, Your Honors, that

[00:20:24] Speaker 00:
This was not to say that one could not write a claim about a specific architecture based upon the disclosure and the specification.

[00:20:34] Speaker 00:
I'm not offering an opinion about whether that would be valid under other provisions of the Patent Act.

[00:20:40] Speaker 00:
But one could imagine writing a claim reciting specific servers and a specific architecture and a specific interaction among those servers.

[00:20:49] Speaker 00:
In fact, Your Honors, Two-Way asserted a fifth patent in this case,

[00:20:54] Speaker 00:
the 237 patent, that which the claim is recited in, in defendant's brief below at appendix 291 to 292, where you see a claim that actually recites multiple different servers serving different functions and interacting in a specific way.

[00:21:15] Speaker 00:
Now that claim was dismissed with prejudice while this section 101 motion was pending.

[00:21:22] Speaker 00:
So it's not at issue now.

[00:21:23] Speaker 00:
But it's just by way of an example that, of course, one could write a very specific architectural claim.

[00:21:30] Speaker 00:
But that's not these claims.

[00:21:31] Speaker 00:
These claims are directed towards a simple goal.

[00:21:35] Speaker 00:
These claims are directed towards claiming exclusive rights over the idea of monitoring and keeping records on the distribution of streaming content using standard internet protocols.

[00:21:48] Speaker 00:
I should add that the background of the invention

[00:21:53] Speaker 00:
in column one gives the context.

[00:21:57] Speaker 00:
And this court and the Supreme Court has looked at the background of the invention on a rule 12 motion.

[00:22:07] Speaker 00:
It's often informative and provides appropriate context for understanding whether the claimed invention is or what the claimed invention is directed to.

[00:22:20] Speaker 00:
under step one, as well as whether there's an inventive concept.

[00:22:23] Speaker 00:
And if you look at the background of the invention here, you see a description of internet functionality, and in particular, internet streaming content functionality using IP multicasting.

[00:22:36] Speaker 00:
The inventors here didn't claim to invent IP multicasting.

[00:22:40] Speaker 00:
They described it as part of the background.

[00:22:43] Speaker 00:
And under IP multicasting, the way that operates, there is necessarily an intermediate computer.

[00:22:50] Speaker 00:
That's the way IP multicasting works, as explained in the background.

[00:22:55] Speaker 00:
There's what are known as m-routers, which receive multicast packets and forward them onto multicast host computers.

[00:23:05] Speaker 00:
Those multicast host computers are ones that have been already determined to route a particular multicast because users have chosen to follow that multicast.

[00:23:18] Speaker 00:
Let's say you want to

[00:23:19] Speaker 00:
tune into a radio station.

[00:23:21] Speaker 00:
This is what was talked about in early years of multicasting.

[00:23:24] Speaker 00:
You sign up for an IP multicast of that radio station.

[00:23:29] Speaker 00:
There's M-routers that will route content to you through M-routers and multicast host computers.

[00:23:38] Speaker 00:
Those easily qualify as the intermediate computers that Two-Way relies upon here.

[00:23:49] Speaker 00:
That's why we submit that what this case, what these claims are, are not about, these are not the architecture claims.

[00:23:57] Speaker 00:
These are the claims that are focused on record keeping and monitoring in the context of routing streaming media in a packet based network.

[00:24:14] Speaker 00:
I want to

[00:24:16] Speaker 00:
I want to mention a couple of cases that I think are directly on point.

[00:24:22] Speaker 00:
Council referred to the claim limitation of in response to user selection signals.

[00:24:30] Speaker 00:
This is part of the controlling the routing that the content is delivered in response to user selection signals.

[00:24:36] Speaker 00:
There's a number of cases, all commercial, both Affinity Labs cases versus Affinity Labs versus Amazon and Affinity Labs versus DirecTV.

[00:24:46] Speaker 00:
all involved distributing content in response to user selection.

[00:24:51] Speaker 00:
None of that was deemed to be either an inventive concept in those cases, nor would it be here, as the background of this invention explains.

[00:25:06] Speaker 00:
And as the Court

[00:25:13] Speaker 00:
is aware the recordkeeping claim elements, whether it's determining the start and stop times or creating a log or determining the duration of the receipt of content for commercial purposes as these various claims recite.

[00:25:35] Speaker 00:
That type of basic recordkeeping function has repeatedly been held not to be an inventive

[00:25:42] Speaker 00:
That's from Alice to Electric Power Group, OIP Technologies, Ultramershal.

[00:25:50] Speaker 00:
All of those cases have held that mere data steps, data gathering steps, are not inventive conduct.

[00:26:00] Speaker 00:
I want to, I want to make, provide one more site here which is relevant to

[00:26:11] Speaker 00:
Two ways argument on reply, which is to say that multicasting was young at the time this patent was applied for, and therefore they offered some improvement to multicasting.

[00:26:26] Speaker 00:
I would submit again, the claims don't recite any improvement to multicasting.

[00:26:30] Speaker 00:
The claims cite very generic network functionality, and in fact are just reciting the most high-level description

[00:26:39] Speaker 00:
of streaming content using multicasting.

[00:26:42] Speaker 00:
But I would also note for the Court that in Affinity Labs v. Amazon, I believe it's quoting there the TLI communications case, the Court noted that claims in those cases were deemed abstract even though the technology at issue was nascent in the Amazon

[00:27:10] Speaker 00:
I think it was delivery of content using mobile phones.

[00:27:15] Speaker 00:
But what this Court said, and I'm quoting from Affinity v. Amazon, was, quote, the claims there, quote, were directed to the use of conventional or generic technology in a nascent but well-known environment without any claim that the invention reflects an inventive solution to any problem presented by combining the two, close quote.

[00:27:39] Speaker 00:
My point here is that just because IP multicasting had been developed only a few years before and was still being deployed does not mean that you get a free pass under Section 101.

[00:27:56] Speaker 00:
Obviously, if you're not the inventor of IP multicasting, that can't be your technological contribution to the field or an inventive concept.

[00:28:06] Speaker 00:
So if the Court has no further questions,

[00:28:09] Speaker 00:
I will rest.

[00:28:11] Speaker 02:
Thank you.

[00:28:12] Speaker 02:
Thank you.

[00:28:12] Speaker 02:
Mr. Ferrell and Mr. Hine will give you three minutes.

[00:28:18] Speaker 01:
Thank you, Your Honor.

[00:28:20] Speaker 01:
Let me begin by just clarifying for the Court, when I referenced the prior district court litigation, it was in the context of claim construction.

[00:28:29] Speaker 01:
It was not in the context of a 101 ruling.

[00:28:33] Speaker 01:
So the claim construction is what was adopted in the prior courts.

[00:28:37] Speaker 01:
There was no

[00:28:38] Speaker 01:
The courts didn't address the 101 issue.

[00:28:42] Speaker 01:
Secondly, counsel raised IP multicasting, and what we heard was an argument about why the claims are not novel and why they're not obvious.

[00:28:50] Speaker 01:
But we're not here today to decide whether or not the claims are novel or obvious.

[00:28:55] Speaker 01:
We're here to decide whether or not the claims recite patentable subject matter.

[00:29:00] Speaker 01:
The multicasting discussion that counsel had completely ignores the controlling the routing possibility.

[00:29:07] Speaker 03:
This patent... I think his argument was that even if claims or rather a method is nascent at the time of invention, that does not necessarily make it subject matter that's eligible for a patent.

[00:29:24] Speaker 01:
It might perhaps be considered, but it shouldn't be considered in this case.

[00:29:27] Speaker 01:
This is far from conventional technology.

[00:29:30] Speaker 01:
This is experimental technology, but more important, and if you look at A15-22 through 28, it talks about the experimental nature, but it's also different.

[00:29:40] Speaker 01:
It's fundamentally different because IP multicasting required a tunneling connection at this point in time, as the specification refers to in column six, lines 35 through 39.

[00:29:51] Speaker 01:
It required a fixed tunneling connection.

[00:29:54] Speaker 01:
There was no availability to be able to control the routing through different ones of intermediate computers to direct in response to a selection signal.

[00:30:04] Speaker 01:
The route was fixed.

[00:30:05] Speaker 01:
That was one of the problems with that system.

[00:30:10] Speaker 01:
What these claims require, and counsel really made the point when he started posing the hypothetical, what if you had three intermediate computers and you put them in the internet?

[00:30:20] Speaker 01:
That's not the conventional internet.

[00:30:23] Speaker 01:
The hypothetical is changing the conventional system that existed out there.

[00:30:28] Speaker 01:
That's what these claims require, a modification to the internet platform.

[00:30:32] Speaker 01:
You have to add a distribution layer, a distribution point that the users are then directed to in order to complete the routing path.

[00:30:40] Speaker 01:
You add that control sequence, it's required by the claims, it's part of the directing.

[00:30:45] Speaker 01:
The claims are clearly technology,

[00:30:47] Speaker 01:
directed.

[00:30:48] Speaker 01:
They're focused on the intermediate computers, the ability to control the routing of the streams through the internet.

[00:30:55] Speaker 01:
It solves a number of different solutions.

[00:30:57] Speaker 01:
It solves the problems with network congestion, server overload.

[00:31:02] Speaker 01:
It makes the system much easier to scale.

[00:31:05] Speaker 01:
And so for all those reasons, these patents, these claims are directed to the exact type of inventions that the patent laws were designed to protect.

[00:31:15] Speaker 02:
Thank you, Your Honor.