[00:00:38] Speaker 03: Our next case is 2017-1494 automated tracking solutions versus the Coca-Cola company. [00:01:09] Speaker 03: Mister is it so cold so please proceed. [00:01:23] Speaker 02: Morning your honors please at the court this court should reverse the district court for two reasons first the claims are not directed for an abstracted in and they recite an event of. [00:01:34] Speaker 02: Second this report properly resolved [00:01:38] Speaker 02: factual disputes in Coca-Cola's favor in violation of the Federal Rules of Civil Procedure 12C. [00:01:45] Speaker 01: I think you take the position that RFID technology was nascent at the time of the invention. [00:01:51] Speaker 01: Am I correct in understanding that? [00:01:53] Speaker 02: That is true, Your Honor. [00:01:54] Speaker 02: And if we take a step back and look at where the technology was, there are essentially an admission that RFID did exist. [00:02:04] Speaker 02: But beyond that, [00:02:07] Speaker 02: Most of the readers at the time, RFID readers, were dumb readers. [00:02:11] Speaker 02: What they did was they acted very similarly to barcode. [00:02:14] Speaker 02: They read transponders. [00:02:15] Speaker 01: Where is all of that in the record? [00:02:18] Speaker 02: So Your Honor, what we argued in the record is that none of this was conventional. [00:02:23] Speaker 02: And part of the problem here is that the procedure of this posture of this case is 12C. [00:02:29] Speaker 02: And we were looking at only the pleadings and the patent itself. [00:02:32] Speaker 01: So where is it in the patent itself and in the pleadings where [00:02:36] Speaker 01: at a minimum, it stated that it's not conventional. [00:02:40] Speaker 02: What the patent says, if we go back to the patent itself. [00:02:55] Speaker 02: So if we look at column 2, which is appendix 52, for example, [00:03:01] Speaker 02: column 2, line 45. [00:03:03] Speaker 02: What we'll see here is the president of invention achieves the aforementioned exemplary aspects by employing radio frequency identification RFID technology, computer programming, and database applications, network technologies, and hardware elements for locating, identifying, tracking, and surveillance of objects. [00:03:21] Speaker 02: The key there is that the RFID technology itself was [00:03:26] Speaker 02: was nascent, was already known. [00:03:27] Speaker 01: What about in column three, lines five through six? [00:03:37] Speaker 02: Yes, Your Honor. [00:03:37] Speaker 02: So what we're talking about here is that RFID technology, readers, transponders, antennas for reading were known. [00:03:47] Speaker 02: But what Dr. Sawyer did is he went beyond that. [00:03:50] Speaker 04: Did you have additional evidence to present on RFID tech [00:03:56] Speaker 04: that you were unable to present before the ruling? [00:03:58] Speaker 02: Yes, Your Honor. [00:04:01] Speaker 02: What we would hope to present if this was presented... What was it? [00:04:04] Speaker 02: It was that... Did you make a pro-offer? [00:04:07] Speaker 02: Excuse me, Your Honor? [00:04:08] Speaker 04: Did you make a pro-offer of that evidence? [00:04:11] Speaker 02: We argued that the technology claimed was not conventional, and that on the pleadings, we were precluded from providing evidence. [00:04:18] Speaker 02: In fact, we even asked for an oral argument below, and we were denied that opportunity. [00:04:24] Speaker 03: But part of the problem is you argued it. [00:04:26] Speaker 03: But you don't have that in the pleadings. [00:04:28] Speaker 03: You had no evidence attached that says that your patent doesn't say that. [00:04:32] Speaker 03: So whether it's conventional might very well be a fact question. [00:04:36] Speaker 03: It seems like a fact question to me, whether something is well known to somebody at a particular time in history. [00:04:41] Speaker 03: But you didn't make an allegation which, if accepted as true, would have preserved your right. [00:04:47] Speaker 03: Because there are no allegations in your pleadings that say that. [00:04:51] Speaker 03: There's only attorney argument in the brief. [00:04:53] Speaker 03: And that is not an allegation to be accepted as true. [00:04:56] Speaker 03: What about, I'm sorry, go ahead and answer me. [00:04:58] Speaker 02: I was just saying, one fact that is true is that, for instance, the 766 patent and the 089 patent went through re-examination. [00:05:07] Speaker 02: And the technology is both novel and unobvious. [00:05:11] Speaker 02: And there's nothing in the record. [00:05:13] Speaker 02: Wait a minute. [00:05:14] Speaker 03: That can't possibly be the rule of law. [00:05:16] Speaker 03: Because then what you're telling me is no patent could ever be invalidated under Section 101 of the pleadings because they all were issued. [00:05:23] Speaker 04: And you just said, quote, [00:05:25] Speaker 04: Well, one fact that is true, and that implies you're conceding everything that Judge Moore just said, so I'm accepting that as conceded. [00:05:35] Speaker 02: No, Your Honor. [00:05:36] Speaker 01: Can I ask you another question on page A228? [00:05:41] Speaker 01: You have your amended complaint, and in there you say that Dr. Sawyer developed and integrated new RFID technology. [00:05:51] Speaker 01: What do you mean by that? [00:05:52] Speaker 02: Sure, Your Honor. [00:05:53] Speaker 02: And importantly, in [00:05:56] Speaker 02: Coates brief, page, I believe, 28. [00:05:59] Speaker 02: They actually quoted this and left out the word new. [00:06:01] Speaker 02: And I think that's very important. [00:06:02] Speaker 01: OK, but what did you mean by that? [00:06:04] Speaker 02: So by new RFID technology, what we meant was we took dumb readers, we took readers that read X. Dr. Sawyer took that type of technology and then added something very important. [00:06:15] Speaker 02: It added state information about transponders. [00:06:19] Speaker 02: And let me explain that for a second. [00:06:21] Speaker 04: So if we were to put a reader... What's the particular configuration for RFID technology taught in the claims? [00:06:27] Speaker 02: It is a reader with an antenna that has, importantly, a coverage area. [00:06:32] Speaker 02: And that coverage area, all readers have a coverage range. [00:06:37] Speaker 02: And the transponder, when it enters the coverage area, can then be read by the reader. [00:06:43] Speaker 04: And importantly... Isn't that the whole point of RFID technology? [00:06:48] Speaker 02: It is, except that previously, [00:06:50] Speaker 02: the state information about the transponders was lost. [00:06:54] Speaker 02: So getting back to what I was saying earlier is that if we were to put a reader at the front door of this courthouse and marked everyone with a tag, as they entered the courthouse, it would read in the conventional sense, in the conventional prior art, it would have read those tags. [00:07:10] Speaker 02: But then you would have lost visibility as the individuals [00:07:13] Speaker 02: went throughout the courthouse. [00:07:15] Speaker 03: You're making a very good point now. [00:07:17] Speaker 03: You have some dependent claims that talk about sensor location for this invention, but your independent claims don't. [00:07:23] Speaker 03: So the point you're making now, which I don't want you to abandon because I think it's a good point, is that we did demonstrate some real novelty in the combination of sensors and locations that wasn't present in the prior art because we can track within the building, whereas everything else only stopped at the door and you were here or you weren't here. [00:07:41] Speaker 03: And in big warehouses, this is useful. [00:07:42] Speaker 03: But I don't see that, for example, in Claim 49 or in Claim 1 of the 766 patent. [00:07:49] Speaker 01: Do you think it's in Claim 49 or in Claim 1? [00:07:52] Speaker 02: I do. [00:07:52] Speaker 01: What language are you referring on? [00:07:54] Speaker 02: Sure. [00:07:58] Speaker 02: Your Honor. [00:07:59] Speaker 02: So if we turn to, for instance. [00:08:02] Speaker 03: Claim 49 of the 089 would be a good starting place. [00:08:05] Speaker 02: Yep. [00:08:08] Speaker 00: OK. [00:08:11] Speaker 03: Because that's one of the ones who said it was represented. [00:08:13] Speaker 02: Yes. [00:08:16] Speaker 02: So if we look at claim 49 of the 089 or claim 1 of 766, we have a reader and we have an antenna. [00:08:24] Speaker 02: Antennas have coverage areas. [00:08:28] Speaker 02: And this is explicitly cited in claim 1 of 766. [00:08:31] Speaker 02: You can see here an antenna in communication with the reader and having a first coverage area. [00:08:37] Speaker 02: This is critical. [00:08:38] Speaker 02: What we're trying to do here is in every single claim, we have detection information, whether it be Claim 49 or Claim 1 in 766. [00:08:46] Speaker 02: This detection information is the state of the transponder. [00:08:49] Speaker 03: What about Claim 49, which doesn't have that language? [00:08:52] Speaker 02: Claim 49 does not explicitly state a first coverage area. [00:08:55] Speaker 02: However, it does recite a reader and antenna, and this is inextricably tied to RFID. [00:09:01] Speaker 02: All antennas have a coverage range. [00:09:03] Speaker 03: But if that were true, then your language in Claim 1 of the 766 would be completely irrelevant. [00:09:07] Speaker 03: If you're telling me the word antenna necessarily inherently has a coverage area, it doesn't have to be present in the claim for everyone to know that, then your language in claim one that you just pointed me to, which is helpful to you, is totally superfluous. [00:09:20] Speaker 02: Is that your view? [00:09:21] Speaker 02: It's not superfluous. [00:09:22] Speaker 02: It's just providing context in claim one. [00:09:23] Speaker 02: An antenna does have a coverage area. [00:09:25] Speaker 02: And if we were to look at the specification as Amdocs teaches us to do in these type of contexts, we would see that the technology is inextricably [00:09:37] Speaker 02: tied to RFID. [00:09:38] Speaker 02: And importantly, readers have coverage areas. [00:09:42] Speaker 01: Do all of your claims require RFID? [00:09:45] Speaker 02: They do. [00:09:45] Speaker 02: They do, Your Honor. [00:09:46] Speaker 02: And if you look at 49, we have transponder, a reader, antenna. [00:09:51] Speaker 03: But why wouldn't claim 49 read on the thing that just tracks when you come in the door? [00:09:55] Speaker 03: Claim 49. [00:09:57] Speaker 02: Because it does not, Your Honor. [00:09:58] Speaker 02: What it does, very importantly, is if you look at the recitation, wherein the detection information indicates whether the stored known transponder ID has been previously detected. [00:10:07] Speaker 02: That's the type of detection information, one of the types of detection information that we're looking at. [00:10:12] Speaker 03: The first time it's come in is- It doesn't tell you where it's located in the building. [00:10:15] Speaker 03: It just tells you if it was previously detected when you walked in. [00:10:17] Speaker 02: Absolutely, Your Honor. [00:10:19] Speaker 03: I like to track who comes in and out of this building. [00:10:21] Speaker 02: And I think there's a difference between Claim 49 and Claim 1 of 766. [00:10:26] Speaker 02: They're covering different concepts. [00:10:28] Speaker 02: Claim 49 is covering the concept of whether or not a tag was known to the system previously and whether it was previously detected. [00:10:35] Speaker 02: That's one aspect of the invention. [00:10:37] Speaker 02: Claim 1 of 766 covers whether or not, and this is important, the detection information covers whether the first sighting of that tag as it enters the coverage area, whether it's the second sighting in the coverage area, and that's extremely important. [00:10:51] Speaker 02: Why? [00:10:51] Speaker 02: That second sighting, because we have two continuous sightings, tells you whether or not the tag is dwelling in the coverage area or has it exited the coverage area, because there has been no second sighting. [00:11:03] Speaker 02: And if you look at the state information for the entire coverage area, that tells you extremely valuable information. [00:11:11] Speaker 02: And then you can track your transponders. [00:11:14] Speaker 02: And when you couple these in a bigger system with multiple coverage areas, this is the result. [00:11:20] Speaker 01: Can I back away from this for just a second and ask you, in claim one of the 766 patent, what about the invention [00:11:29] Speaker 01: What structural aspects of your system might be important for the invention? [00:11:35] Speaker 02: Sure. [00:11:36] Speaker 02: So the claim one is a combination of hardware and software. [00:11:42] Speaker 02: And the software aspects are spelled out in the processors. [00:11:46] Speaker 02: So the key there is that the processor is generating this transponder information, the state information of how, when, where a transponder was read by the reader. [00:11:57] Speaker 02: And by maintaining that information, [00:11:59] Speaker 02: You maintain visibility of the tag throughout the coverage area and therefore perhaps throughout a facility. [00:12:06] Speaker 02: That's critical. [00:12:07] Speaker 02: That was lost in prior systems. [00:12:10] Speaker 02: All you did was read the tag. [00:12:12] Speaker 02: By maintaining the state information, you allow the tag to be tracked throughout the coverage area. [00:12:24] Speaker 02: Now, Your Honors, [00:12:26] Speaker 02: We believe this case is indistinguishable from Thales, which I learned this morning is how you pronounce that. [00:12:33] Speaker 02: In that case, you had some inertial sensors that were placed in certain locations, and you had a mathematical algorithm that then gathered the data from the sensors and applied a formula which was based on a different reference frame. [00:12:47] Speaker 02: And we believe that's analogous to our case here. [00:12:49] Speaker 03: Well, in that case, two points working together [00:12:55] Speaker 03: resulted in the outcome. [00:12:57] Speaker 03: Point number one was the sensor locations were entirely new and that those new locations were claimed and that that was meaningful because it really changed the entire formula that you would historically have used to make these calculations. [00:13:12] Speaker 03: It was a because of changing the location of the sensors or the desire to change the location of the sensors you had to come up with a whole new way of calculating. [00:13:19] Speaker 03: I don't see that here in these particularly the broader claims. [00:13:25] Speaker 02: Your Honor, we believe, first of all, in Thales, the formula dictated necessarily the location of those sensors. [00:13:33] Speaker 02: But I think importantly, what the analogy we would like to make is that what they did was they changed the reference frame. [00:13:39] Speaker 02: And what we've done is also changed its quasi-reference frame. [00:13:43] Speaker 01: What we've done is... What is it about the structural components and how they work together that might be different or unconventional? [00:13:50] Speaker 01: I mean, it sounds as if all that I'm hearing you describe is being the [00:13:55] Speaker 01: What the invention is directed to is claimed as functional aspects. [00:13:59] Speaker 01: Is there anything structural like, for example, the location of the antennas or anything like that? [00:14:06] Speaker 02: Not in the independent claims, Your Honor. [00:14:09] Speaker 02: The improvement over the R was a combination of, was an improvement to the RFID system as a whole. [00:14:16] Speaker 02: And that can happen through any number of ways. [00:14:19] Speaker 02: It could be hardware, could be software. [00:14:21] Speaker 02: This was a improvement. [00:14:23] Speaker 02: that allowed you to have visibility of that tag throughout that coverage area. [00:14:26] Speaker 02: And it's an important distinction. [00:14:28] Speaker 02: It's a distinction that differentiates prior systems, significantly differentiates. [00:14:32] Speaker 02: Something we've argued below was unconventional. [00:14:35] Speaker 02: And what Coke has done, particularly at this pleading stage of 12C, is they've assumed a whole host of facts. [00:14:42] Speaker 02: And those facts were not seen in our favor by the district court. [00:14:47] Speaker 02: And the two facts below that we can agree to was number one, RFID [00:14:53] Speaker 02: was a nascent technology. [00:14:55] Speaker 02: And second, that inventory control was performed by humans. [00:15:06] Speaker 02: But those two facts alone should not preclude a full development of the record below so that all these arguments be made. [00:15:18] Speaker 01: You make a lot of arguments in favor of eligibility in your briefs, and I know there's representative claims, but I just want to direct your attention for a minute to claims 23 and 24 of the 449 patent. [00:15:34] Speaker 01: I wanted to know whether any of your eligibility arguments pertain to those two claims, which are method claims. [00:15:40] Speaker 01: Which patent, Your Honor? [00:15:41] Speaker 01: It's the 449 patent claims 23 and 24. [00:15:56] Speaker 02: 23 and 24? [00:15:57] Speaker 02: Yes. [00:16:13] Speaker 02: Yes, Your Honor. [00:16:14] Speaker 02: Again, the Claim 23, the last step, which is generating by the processor detection information based on the received transponder data, the detection information comprising [00:16:24] Speaker 02: first sighting and last sighting of the transponder in the cupboard area. [00:16:28] Speaker 02: And then 23, which talks about his dwelling. [00:16:32] Speaker 02: Again, I mentioned that earlier. [00:16:33] Speaker 02: That's critical that what we're looking at. [00:16:35] Speaker 01: Why is that? [00:16:36] Speaker 01: Well, OK. [00:16:37] Speaker 01: I'm sorry to interrupt. [00:16:38] Speaker 01: Sure. [00:16:38] Speaker 01: But again, we're talking about eligibility. [00:16:40] Speaker 01: Yes. [00:16:40] Speaker 01: So OK. [00:16:41] Speaker 01: How does this relate to the eligibility arguments you've made? [00:16:44] Speaker 02: So it is not an abstract idea to tie [00:16:53] Speaker 02: a system to a real-world physical constraint, which is a coverage area that has a physical dimension. [00:17:00] Speaker 02: It's something that was not done by humans, could not be done by humans. [00:17:04] Speaker 02: And by recognizing that the ARFID antennas had this coverage area, and then by maintaining the state information about how, where, when a transponder is located, excuse me, where it was identified first, that's critical information that can then be used for a whole host of applications. [00:17:22] Speaker 02: But it is, at its very core, these claims are directed to RFID systems. [00:17:28] Speaker 02: And I think that that's analogous to the inertial sensor system in Thales. [00:17:34] Speaker 02: There's no, I see I'm out of time. [00:17:36] Speaker 03: Okay, we'll restore your rebuttal time. [00:17:38] Speaker 03: Let's hear from opposing counsel, Mr. Pivnik. [00:17:57] Speaker 00: Thank you, Your Honors, and good morning. [00:17:58] Speaker 00: My name is Scott Pivnik from Alston & Berg, representing the Coca-Cola Company. [00:18:04] Speaker 00: Under ALICE Step 1, all four of the patents claim unpatentable subject matter because they claim the abstract idea of locating, identifying, and tracking objects. [00:18:15] Speaker 04: Are the antennas readers or the transponder in any way new? [00:18:21] Speaker 00: No. [00:18:21] Speaker 00: They don't claim to be new. [00:18:22] Speaker 00: There's nothing in the specification that talks about it new. [00:18:26] Speaker 00: We heard my opposing counsel say that all antennas have a coverage area. [00:18:30] Speaker 00: There is nothing claimed new technology in these pads. [00:18:34] Speaker 00: There is no new RFID components, no new computer components, and no application. [00:18:39] Speaker 04: ATS says that there was a material fact in dispute as to whether at the time of the invention the RFID technology was well-known, routine, or conventional. [00:18:50] Speaker 00: And we would, of course, disagree, Your Honor, because all that is described in the patent specification. [00:18:55] Speaker 00: And I disagree with his description. [00:18:58] Speaker 00: I believe someone asked, Judge Stoll asked about if it's nascent. [00:19:00] Speaker 00: It wasn't nascent. [00:19:01] Speaker 00: It's rapidly developing. [00:19:03] Speaker 00: But it had been around for quite a long time. [00:19:05] Speaker 00: In fact, the patent column three on patent three refers to a great deal of explanatory material. [00:19:14] Speaker 00: It wouldn't be nascent if there was a great deal of explanatory material. [00:19:17] Speaker 00: There is nothing new being claimed in the patents. [00:19:20] Speaker 00: And the patents repeatedly refer to the idea being covered as this asset locating, tracking, and surveillance. [00:19:28] Speaker 01: I agree with you that the patent suggests that maybe the individual components are conventional. [00:19:34] Speaker 01: But where does the patent or anything else in the record before the district court say that the combination of all those things together [00:19:44] Speaker 01: was not new or was conventional. [00:19:47] Speaker 01: Where is that stated? [00:19:48] Speaker 01: Because you might have a situation where all the elements themselves are conventional, but we need to also consider this claim. [00:19:56] Speaker 01: Most of these claims are directed to an RFID system, not a method. [00:20:02] Speaker 00: Correct. [00:20:02] Speaker 00: But they all refer to at least three of the patents, and they're pretty able to talk about a method for locating, tracking, and identifying information. [00:20:11] Speaker 01: They don't talk about a method. [00:20:13] Speaker 01: They say a system. [00:20:15] Speaker 01: Some of the claims are a method. [00:20:17] Speaker 01: But in patent law, we do distinguish between methods and systems. [00:20:20] Speaker 01: But again, my question was simply, in the specification or anywhere else in the evidence that the district court was looking at, where is there anything or any sort of admission that these elements in a combination was conventional? [00:20:34] Speaker 00: The patent does describe in column three that a typical RFID system is an 089 patent on appendix page 53. [00:20:45] Speaker 00: It talks about a simple, and I'm on line 10 of column 3, a simple RFID system may be composed of three components, a scanner, a transponder, and a computer. [00:20:56] Speaker 00: And the transponder may be composed of an antenna, coil, and silicon chips. [00:21:00] Speaker 00: And the transponder may contain identifying information in its memory. [00:21:05] Speaker 00: Everything that is claimed in the patent was described right there. [00:21:08] Speaker 00: That is a typical RFID system. [00:21:11] Speaker 00: You always had a transponder, a reader, an antenna, and a computer. [00:21:16] Speaker 00: And those are the only components claimed in the patents. [00:21:19] Speaker 00: Again, just exemplary, if you look at claim 49 of the patent, of the 089 patent, the first one is a transponder affixed to the object, second a reader, third an antenna, and then a storage device and a processor. [00:21:34] Speaker 00: Storage device and processor being in the computer. [00:21:36] Speaker 01: What about some of the dependent claims that give maybe more details about the antennas? [00:21:43] Speaker 00: To begin, those aren't before the court. [00:21:45] Speaker 00: Those are not asserted by ATS below to confer any additional patentability on there. [00:21:51] Speaker 00: So I don't think it's properly before the court. [00:21:54] Speaker 00: But I also have not heard. [00:21:55] Speaker 00: I mean, we can talk about the one that you asked about. [00:21:59] Speaker 01: No, that's all right. [00:22:00] Speaker 01: You don't need to ask. [00:22:01] Speaker 01: That doesn't provide additional detail on the intent. [00:22:04] Speaker 00: I would assert that on the asserted claims that I have looked at from below, there is nothing additional beyond those components we just talked about. [00:22:12] Speaker 00: And this functionality could all have been done by a person holding a clipboard with a piece of paper and a pen. [00:22:19] Speaker 00: All that ATS has done is used an RFID reader to put the entry on the clipboard. [00:22:26] Speaker 00: We'll talk about entering the building as was discussed before. [00:22:30] Speaker 00: You can have a guard standing at the door, marking in, Judge Moore came in, and then Judge Moore left. [00:22:35] Speaker 01: One of the things that's troubled me about this case, I hear what you're saying, but to be honest with you, that's not going to persuade me. [00:22:42] Speaker 01: One of the things that's troubling me about this case is that most of the claims are directed to a system, as I mentioned, and there are specific hardware components. [00:22:52] Speaker 01: I'm following Supreme Court case law, for example, Alice, and Alice and cases like Alice are talking about the idea that I have an idea and now I'm going to say, okay, do it on a computer. [00:23:04] Speaker 01: These claims could be viewed differently. [00:23:07] Speaker 01: These claims could be viewed as, I have a system. [00:23:10] Speaker 01: It's for performing a certain function. [00:23:12] Speaker 01: And these are the electronic components of that system. [00:23:17] Speaker 01: And the question is, how far do we go with 101? [00:23:19] Speaker 01: Do we go so far that we're going to include telecommunication systems where there's different electronic components of those systems? [00:23:28] Speaker 01: So how far do we go here? [00:23:30] Speaker 01: And why is this? [00:23:31] Speaker 01: This isn't just a computer case. [00:23:33] Speaker 01: This has other elements besides a computer. [00:23:36] Speaker 01: So how do you respond to that? [00:23:38] Speaker 00: I would say it doesn't really matter, Your Honor. [00:23:40] Speaker 00: This court has repeatedly held that taking known computer components and putting them together alone or doing an abstract idea on a computer or with other equipment doesn't matter. [00:23:51] Speaker 00: In the secured mail case, the one that we submitted a notice of supplemental authority on, in that case, they talked about barcode readers and QR codes and using scanners to then scan those in. [00:24:01] Speaker 00: And the court said, that doesn't matter. [00:24:03] Speaker 00: The patents weren't directed to a new method of creating those barcodes or QR codes. [00:24:10] Speaker 00: It didn't have any technological improvement. [00:24:12] Speaker 00: And that's what Alice and Enfish have talked about in this project. [00:24:17] Speaker 00: What is the technological improvement that leads us to being a non-abstract idea? [00:24:24] Speaker 01: It doesn't matter that this isn't just a computer. [00:24:28] Speaker 01: There's other components in the system. [00:24:31] Speaker 01: The fact that there's, because it's electronic, so long as all those prior hardware components were conventional, it doesn't matter. [00:24:41] Speaker 01: Everything that is like that is going to be ineligible, unless somehow the hardware has changed. [00:24:46] Speaker 01: That's your position? [00:24:47] Speaker 00: No. [00:24:47] Speaker 00: I would say it depends on the outcome of Alice's step two, because it could be that those hardware components were combined in an unconventional way. [00:24:59] Speaker 00: And then under Alice step two, you would then have an eligibility. [00:25:03] Speaker 00: That's somewhat what happened in TALIS. [00:25:06] Speaker 00: In TALIS, they had these sensors, but the sensors then were placed in different places, and they used a different reference point. [00:25:12] Speaker 01: TALIS was decided under step one, though. [00:25:14] Speaker 00: But they also talked about that one of the things that talked was that they used the known components in a different way. [00:25:21] Speaker 00: So I would say it wouldn't matter, because as the case law makes clear, Alice one is over in Alice two very often. [00:25:27] Speaker 00: But I would say that if you are using computer components that are all existing, and they are doing an abstract idea that may have sped it up, then it would not be eligible unless those components were combined in an unconventional way. [00:25:42] Speaker 00: Those components can be computers or other. [00:25:45] Speaker 04: My problem is sort of a logical hypothesis. [00:25:48] Speaker 04: And that is you have an RFID, and it's not under the patent asserted. [00:25:57] Speaker 04: You simply, under the RFID technology as it exists, it shows that an object is in a place. [00:26:08] Speaker 04: And the invention is, well, it moves into another place and then we know that it's not in the first place. [00:26:16] Speaker 04: But RFID technology inherently is designed to show you where the object is. [00:26:24] Speaker 04: So that as long as you keep the scanner turned on, [00:26:28] Speaker 04: And the scanner tells you, oh, the object with the RFID is somewhere else. [00:26:36] Speaker 04: Inherently, it tells you that. [00:26:37] Speaker 00: Does it not? [00:26:39] Speaker 00: I would agree, Your Honor. [00:26:39] Speaker 00: And that is one of our points, is that there is no technological improvement here. [00:26:44] Speaker 00: They're using RFID technology for the exact purpose for which it was meant to be used. [00:26:50] Speaker 00: They're just applying the known technology to the abstract idea of tracking objects. [00:26:55] Speaker 00: And as I said in our briefs, [00:26:57] Speaker 00: Everything that's claimed could be done by a person taking inventory or keeping track of objects on a clipboard. [00:27:03] Speaker 04: But I think what you're also necessarily saying is everything that's claimed could be done with existing RFID technology and was done with existing RFID technology. [00:27:13] Speaker 00: Or barcodes. [00:27:13] Speaker 00: The patent talks about previous barcodes that did the same exact thing. [00:27:18] Speaker 03: Yeah, but there's a huge difference between that and using antennas with coverage areas, isn't there? [00:27:23] Speaker 03: I mean, isn't that a difference between both the secured mail case and what you're discussing now with Judge Wallach, is these coverage areas, the patent makes a lot of the fact that you can have an enormous warehouse and separately locate these sensors in order to cover particular coverage areas, and that that makes for a meaningful difference. [00:27:42] Speaker 03: I mean, yes, antennas may inherently have coverage areas, [00:27:45] Speaker 03: But they've recognized that combining them the way they have would enable the RFID system to track these objects a lot better. [00:27:53] Speaker 03: That's a lot different than just standing at the door and figuring out whether it comes in or goes out. [00:27:56] Speaker 03: That's locating it within the building specifically. [00:27:59] Speaker 00: I would make three points, I guess. [00:28:01] Speaker 00: The first is, as Ms. [00:28:02] Speaker 00: Sokol admitted, all antennas have coverage areas. [00:28:04] Speaker 00: That was nothing new. [00:28:05] Speaker 03: Yes, but it's a big difference between utilizing that coverage area meaningfully and accounting for it and just standing at the door and checking things in and out. [00:28:13] Speaker 00: So my second point would be that I could have people, three people standing for all those carbon gerias. [00:28:19] Speaker 00: And the most important point, though, is there is nothing in the claims, at least the representative claims. [00:28:23] Speaker 00: That is crazy. [00:28:24] Speaker 03: Your argument, I could have three people doing it, it's outrageous to me. [00:28:27] Speaker 03: Because then every automated system, even if, you know, assembly line, everything, you're going to say, well, this could all be done by people beforehand. [00:28:34] Speaker 03: Everything could be done by people beforehand, except sort of extreme supercomputer calculations. [00:28:39] Speaker 00: But the third and the most important point is none of that is actually claimed in the patents. [00:28:45] Speaker 03: A car isn't ineligible because people can also walk to destinations. [00:28:51] Speaker 00: I agree with that, but that wasn't my point, actually. [00:28:55] Speaker 00: What I'm saying is that what you're talking about having in different places, and they try to say that what they have is a specialized RFID system. [00:29:02] Speaker 00: None of that is actually claimed in the patents. [00:29:05] Speaker 00: If you looked at their arguments about RFID sensors [00:29:08] Speaker 00: don't have storage capacity, and why they disagreed with what the district court did is they don't point to anything in the patents themselves that support their arguments. [00:29:18] Speaker 00: And that then goes to the other point as to whether or not it was improper to decide this on 12b motion. [00:29:25] Speaker 00: It was entirely proper because everything that the district court did and all that we argue is based on what's in the patents. [00:29:32] Speaker 00: There was no inferences that should be drawn in their favor because they did not have a basis in the pleadings. [00:29:39] Speaker 03: Doesn't this patent expressly disclose the use of multiple antennas spread out throughout a warehouse, picking up things as it moves, or locating it within the warehouse? [00:29:48] Speaker 00: The specification talks about that, yes, Your Honor. [00:29:51] Speaker 01: How do you deal with the Amdoc? [00:29:52] Speaker 01: Any idea that Amdoc says you can look to the specifications to support whether claims are eligible or not? [00:29:59] Speaker 00: You can look to determine what the abstract idea is, yes, but you still need to look at what is actually claimed to decide whether or not it claims patent-eligible subject matter. [00:30:08] Speaker 00: The fact that they may have talked about it, because we also don't know if it was in prior art or if it was part of this, but they don't claim it. [00:30:15] Speaker 01: One of the things that's hard here is that when we come back and forth on this system, is it directed to the idea of locating, identifying, or tracking at least one object, which is the preamble of the claim? [00:30:27] Speaker 01: Well, not including the word system. [00:30:30] Speaker 01: Or is it directed to an RFID system with these [00:30:35] Speaker 01: particular components arranged in a certain way. [00:30:38] Speaker 01: Because the specification does talk about how you want to have the antennas located here, here, and here. [00:30:42] Speaker 01: And you want to have the antennas be of a certain type, of a certain polarity, of a certain location, with respect to the transponders. [00:30:50] Speaker 01: Those kinds of details are in the specifications. [00:30:52] Speaker 01: So to the extent that you're looking at the specification to try to determine whether this is directed to an abstract idea or not, how do you respond to that? [00:31:02] Speaker 01: Because the specification does have specific details. [00:31:05] Speaker 00: It has specific details of things that were known at the time of the invention. [00:31:11] Speaker 00: Everything that is in there. [00:31:12] Speaker 01: Everything, including where the antennas should be located. [00:31:16] Speaker 01: Sure. [00:31:17] Speaker 01: RFID systems had multiple antennas. [00:31:18] Speaker 01: Where is that in the record? [00:31:22] Speaker 00: Again, a common story. [00:31:23] Speaker 01: All of the details about where the antennas are located. [00:31:27] Speaker 01: That's conventional. [00:31:28] Speaker 01: I don't think that's in the record. [00:31:30] Speaker 00: I don't know that it talks about prior to the invention that they were placed all over a warehouse. [00:31:36] Speaker 00: I agree. [00:31:36] Speaker 00: I don't think that's in there. [00:31:37] Speaker 00: But they do talk about having multiple transponders and receivers. [00:31:43] Speaker 00: It talks about, again, in COM3, they talk about that. [00:31:46] Speaker 00: But again, the TLI case talks about it. [00:31:49] Speaker 03: Can you show me where they talk about it? [00:31:57] Speaker ?: Sure. [00:32:04] Speaker 03: A single system that includes multiple antennas, multiple transmitters, tracking stuff. [00:32:16] Speaker 00: I guess it does say a simple RFID system. [00:32:18] Speaker 03: It doesn't actually have any multi-component systems. [00:32:22] Speaker 03: At least I didn't see anything disclosed. [00:32:24] Speaker 00: But I would also point you to the TLI case that said that the recitation of concrete, tangible components is insufficient to confer patent eligibility [00:32:33] Speaker 00: to an otherwise abstract idea, and that it must involve more than performance of well-understood routine conventional activities previously known. [00:32:42] Speaker 00: Again, they have not claimed that any of the technology or any of the hardware is new. [00:32:46] Speaker 00: And all they're doing is taking what was done manually, which they admit was done manually by police stations before that, and then applying RFID technology to that manual process. [00:32:59] Speaker 03: Did the district court render ineligible all the claims of the patents at issue? [00:33:05] Speaker 00: They used the representative claims and then found them to be ineligible. [00:33:09] Speaker 00: And Coca-Cola had proposed two claims. [00:33:13] Speaker 00: ATS came back and used four. [00:33:15] Speaker 00: And they did find all four of those to be patent ineligible. [00:33:18] Speaker 03: And when you say ATS came back with four, is there something somewhere that I can read where the parties agreed that these claims [00:33:27] Speaker 03: would bind all the other claims to the patent because the confusing thing for me is he makes arguments both on appeal and below that seem to me only to apply to dependent claims. [00:33:38] Speaker 03: And he wants me to read them into the independent claims, but he did make those arguments. [00:33:43] Speaker 03: I feel like he did separately argue the dependent claims. [00:33:47] Speaker 03: So I'm kind of wondering, is there somewhere where there's a stipulation that the representative claims would govern all the claims that issue in the patent? [00:33:54] Speaker 00: Uh, I, I honestly cannot recall her, but I would say I believe in their briefing, in their opposition brief, they said, these are the four representative claims. [00:34:01] Speaker 00: I don't recall anything of them saying, no, we should consider these other dependent claims too, because they have separate rationales for it. [00:34:08] Speaker 03: Well, so I guess he thought the representative claims could read in certain things is a matter of claim construction. [00:34:17] Speaker 03: If they don't, but if the dependent claims clearly do contain those limitations. [00:34:22] Speaker 03: Should we really hold him to your whole patent's dead under a circumstance like that? [00:34:26] Speaker 00: I think so, Your Honor. [00:34:27] Speaker 00: I think he had an obligation. [00:34:28] Speaker 00: If he believed that additional claims should have been included in those representative claims, he had an obligation to raise that with the court. [00:34:35] Speaker 00: He did not do so. [00:34:36] Speaker 00: He did not then preserve his right to say, well, I know I said those four, but these other two should have been considered, too. [00:34:42] Speaker 00: I think it would be a waiver issue. [00:34:46] Speaker 00: All right. [00:34:46] Speaker 03: Okay, you're over your time. [00:34:47] Speaker 03: Thank you very much. [00:34:48] Speaker 03: Thank you, Your Honor. [00:34:50] Speaker 03: Give Mr. Sokol three minutes of rebuttal time. [00:34:53] Speaker 03: That will even out the time since Mr. Pritnik went over. [00:34:55] Speaker 01: Do you have a response to Judge Moore's question about arguing the dependent claims separately? [00:35:02] Speaker 02: Your Honor, we would agree with the district court that we're representing claims, which were the independent claims and only the independent claims. [00:35:14] Speaker 02: It certainly should be considered as part of the [00:35:17] Speaker 02: the patent, the dependent claims, and they should be considered as part of the specification. [00:35:21] Speaker 02: But as far as by what you're arguing, the representative claims were claimed at the below is claimed, the four claims that were put, the four independent claims are in the briefs. [00:35:31] Speaker 04: Do the two additional, I'm sorry, do the two additional claims that you propose as representative change the 101 analysis from the two that... They do not. [00:35:42] Speaker 02: They do not, Your Honor. [00:35:43] Speaker 02: Those are the two claims that are represented, Judge Moore. [00:35:45] Speaker 02: Claim 1 of 766 and Claim 49 of 380. [00:35:52] Speaker 02: This case is not about just adding a computer to the abstract idea. [00:35:56] Speaker 02: Rather, the claims are directed to the RFID system that provides visibility of transponders in covered areas. [00:36:03] Speaker 02: Now, what my counsel on the other side said was that there's no new technology. [00:36:10] Speaker 02: We strongly disagree with that. [00:36:12] Speaker 02: Judge Wallach, you asked very importantly, [00:36:14] Speaker 02: Isn't this how RFID was always used? [00:36:17] Speaker 02: The answer is no. [00:36:18] Speaker 02: You said, isn't RFID always used to know where a tag is? [00:36:23] Speaker 02: The answer is no. [00:36:25] Speaker 02: That's the key, is that we're using the coverage areas. [00:36:29] Speaker 02: It's a useful tool, but we're using the coverage areas to thereby maintain the visibility of the tags throughout the coverage areas. [00:36:36] Speaker 02: That was not done conventionally, and that is a critical dispute in this case. [00:36:42] Speaker 02: The fact that [00:36:44] Speaker 02: Council has argued that there may be components that were known in the fact that council argues that there may be components that are conventional, but that can't be the case that just because there are conventional components within a claim that that dooms the claim from a patentability point of view. [00:37:02] Speaker 02: Just like we've seen in deer where the rubber press was certainly conventional, but they applied a new formula to open that press and create rubber, just like in thallus. [00:37:12] Speaker 02: where they used conventional inertial sensors, but still used a new mathematical algorithm to produce a different result. [00:37:17] Speaker 02: Here, we're using the coverage area to maintain the state of information. [00:37:23] Speaker 01: What about the response that in these independent claims that you've asserted as the representative claims, their antenna is directed to a coverage area, but you've admitted that every antenna has a coverage area. [00:37:35] Speaker 02: That's true, Your Honor, but not every RFID system maintains the state [00:37:40] Speaker 02: of the transponders within that coverage area. [00:37:42] Speaker 02: And that's one of the critical... Where's that in the claim? [00:37:44] Speaker 02: Sure, Your Honor. [00:37:46] Speaker 02: If we look at... Excuse me, Your Honor. [00:37:54] Speaker 02: If we look at claim one of 766 patent as an example, you can see that the processor is coupled to the reader, the processor is configured to generate detection information. [00:38:06] Speaker 02: The detection information comprises [00:38:08] Speaker 02: first sighting and last sighting of the first transponder in the coverage area. [00:38:12] Speaker 02: And then that's used to determine whether it's dwelling. [00:38:15] Speaker 02: That is the visibility. [00:38:16] Speaker 02: That's the state information about the transponder. [00:38:19] Speaker 02: And that is a critical paradigm shift over what was done before. [00:38:25] Speaker 02: And by maintaining that information, we provide visibility to the tag throughout the coverage area, but then ultimately throughout the facility. [00:38:33] Speaker 02: One other thing, I think Council referenced our patent [00:38:38] Speaker 02: at column three. [00:38:39] Speaker 03: So do you think the new thing, the combination of elements that you have put together and the novelty that flows from that combination, because each of the individual elements are certainly conventional, do you think the new thing is this utilizing this coverage area and taking multiple passes, multiple checks? [00:39:04] Speaker 03: It seems like all the priority systems disclosed in the background are, it comes in the door. [00:39:09] Speaker 03: Like it's a one-time check, and then there's no continuing coverage of the device. [00:39:16] Speaker 02: You've hit the nail on the head, Judge Moore. [00:39:17] Speaker 03: So that's what you think is new, is the ability to repeatedly ping it to find out its location, and therefore know where it is within the building. [00:39:31] Speaker 02: Absolutely, Judge Moore. [00:39:33] Speaker 02: It is the utilization of the coverage area. [00:39:36] Speaker 02: And if we look at claims 1 of 766, it's about a temporal relationship and a spatial relationship. [00:39:42] Speaker 02: The spatial relationship being the coverage area. [00:39:44] Speaker 02: The temporal relationship being the fact that there are multiple reads being made within the coverage area. [00:39:49] Speaker 02: Specifically, we're citing a first citing and a last citing. [00:39:52] Speaker 02: That tells you valuable information, whether it just entered the coverage area, whether it's dwelling in the coverage area, whether it's exited the coverage area. [00:39:59] Speaker 02: And that type of spatial information is critical. [00:40:01] Speaker 02: And I do think [00:40:02] Speaker 02: It is this utilization of the coverage area that is critical. [00:40:06] Speaker 03: All right. [00:40:06] Speaker 03: Well, your time is up. [00:40:07] Speaker 03: We thank both counsel for their argument, and this case is taken under submission.