[00:00:32] Speaker 01:
Is counsel here for Brodsoft?

[00:00:41] Speaker 01:
Please come forward.

[00:00:54] Speaker 01:
This is case number 181124, Brodsoft incorporated against

[00:00:59] Speaker 01:
Hallway of Communications, LLC.

[00:01:02] Speaker 01:
Mr. Bellinger, when you're ready.

[00:01:09] Speaker 03:
Good morning, Your Honor.

[00:01:11] Speaker 03:
May it please the Court?

[00:01:13] Speaker 03:
We appeal from three fundamental errors in the lower court's decision.

[00:01:18] Speaker 03:
The first error relates to a misapplication of the Van Muur exception, where the Court found the claims invalid as anticipated.

[00:01:28] Speaker 03:
while relieving the challenger of the burden to prove invalidity on an element by element basis.

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The second error relates to finding what the parties have referred to and the court refers to as the single number of out-call claims as not patent eligible under section 101.

[00:01:47] Speaker 03:
The third error is a similar finding of lack of patent eligibility for what the parties in the court refer to as the sequential ring claims.

[00:01:55] Speaker 03:
I want to start

[00:01:56] Speaker 03:
with the misapplication of the Van Moore exception under Section 101.

[00:02:01] Speaker 03:
And within that, we believe there are two fundamental errors.

[00:02:05] Speaker 03:
The first fundamental error is it was undisputed below that the product accused of infringement was released after the critical date.

[00:02:15] Speaker 03:
And in our view, the Van Moore exception applies narrowly to where the patentee actually accuses a product and the

[00:02:23] Speaker 03:
a defendant or the accused infringer is able to prove that that exact product was on sale prior to the critical date.

[00:02:31] Speaker 03:
There was no evidence of that here.

[00:02:33] Speaker 03:
Rather, the court shifted the burden to the patentee and looked for proof of substantial differences between the product that was accused of infringement and the product that was previously sold, which is

[00:02:48] Speaker 00:
Your position is that the district court should have compared the prior art to the claims as opposed to comparing the prior art to the accused product.

[00:02:57] Speaker 03:
Is that correct?

[00:02:58] Speaker 03:
Correct.

[00:02:59] Speaker 03:
And further, that error was compounded because the challenger never compared the prior art product to the accused product and did not present substantial evidence that the prior art product was identical or the same as the accused product.

[00:03:14] Speaker 00:
Had they done so, would that have been sufficient?

[00:03:16] Speaker 03:
it would have been sufficient if they proved by clear and convincing evidence that they were identical.

[00:03:22] Speaker 03:
And that's the Van Moore exception.

[00:03:23] Speaker 03:
So if it was a mere change in a branding or a trade name, and they could have proven they were material identical, that would have fallen under the Van Moore exception.

[00:03:33] Speaker 03:
That was not the case here and is not the case here.

[00:03:37] Speaker 02:
I'm hopeful that you're raising that issue first, because it seems to me we're in 101 land again.

[00:03:44] Speaker 02:
Yes, sir.

[00:03:45] Speaker 02:
But with a different kind of invention.

[00:03:48] Speaker 02:
And you've got real problems there.

[00:03:51] Speaker 03:
If I may just briefly address the Van Buren exception, I'll move to the 101 issue.

[00:03:56] Speaker 03:
So in summary, so the primary error was relieving the challenger of their burden to prove invalidity at an element by element basis.

[00:04:05] Speaker 03:
The judge, in his opinion, without citation, stated that the patentee had acknowledged that the accused product was merely an updated version of the prior art.

[00:04:14] Speaker 03:
There was no such admission.

[00:04:16] Speaker 03:
That was strenuously disputed below.

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He also made an incorrect finding that our expert, who had compared the accused product to the alleged prior art version, had not identified differences

[00:04:30] Speaker 03:
I point you in the record to appendix 5111 paragraph 12 and 5113 paragraph 21.

[00:04:38] Speaker 03:
That's our expert's declaration where he compared the source code for the accused product to the source code for the alleged prior art and found that the critical piece of source code, the source code that was inserting the caller identification, substituting the phone number for a virtual telephone number in the caller identification field,

[00:04:58] Speaker 03:
had a copyright date of 2009, well after the critical date.

[00:05:01] Speaker 03:
So we believe that was the fundamental error, that there was evidence in the record that the two products were materially different, and yet he didn't properly credit that evidence on summary judgment.

[00:05:13] Speaker 03:
Regarding 101, Your Honor, starting with a single number of out-call clerks, the judge characterized those claims as directed to a problem of human unavailability, and we would

[00:05:27] Speaker 03:
respectfully disagree the claims are directed to the patent and the claims are directed to a problem with then existing telecommunications and telephone systems and propose a novel organization of known components to provide new and improved functionality for a call processing system by placing and further

[00:05:52] Speaker 00:
What do you see as the novel organization?

[00:05:57] Speaker 00:
I mean, definitely the claim is wrong and has a lot of elements, but it seems to be that it's really directed to using when you have two different phones, yet it provides the same color and key.

[00:06:15] Speaker 00:
Yes.

[00:06:15] Speaker 00:
So how is this, how do you understand what you're referring to as it being a new

[00:06:22] Speaker 00:
directed to be a new organization.

[00:06:25] Speaker 03:
Sure, thank you.

[00:06:26] Speaker 03:
So what the claim is directed to is interposing what's claimed as a call processing system in between the calling party and the called party.

[00:06:37] Speaker 03:
Storing within that call processing system phone numbers for the subscriber to the service.

[00:06:43] Speaker 03:
So for example you would store your cell phone number and your office number at the call processing system and rather than from your cell phone which has its own unique

[00:06:52] Speaker 03:
telephone number directly calling the person you wanted to call, you instead, as it claims, you participate in the call of the call processing system.

[00:06:59] Speaker 03:
You call that call processing system.

[00:07:01] Speaker 03:
That call processing system recognizes, because you've already programmed your cell phone number into it, that you're a subscriber, and then call them.

[00:07:09] Speaker 00:
Could the call processing system be the other phone?

[00:07:11] Speaker 00:
Or be something in the other phone?

[00:07:14] Speaker 03:
No.

[00:07:15] Speaker 03:
That was construed by the court to be a series of servers that are capable of screening incoming calls based on predefined rules.

[00:07:21] Speaker 03:
So, and this is illustrated in figure 31 of the Patent Your Honor, where it illustrates a novel arrangement.

[00:07:30] Speaker 03:
In that figure, it's the soft switch is the call processing system.

[00:07:34] Speaker 03:
And rather than making a, and if you look at figure 31, the fixed phone, 506 in this example, rather than just dialing directly to the caller 505, as would have been conventional, the call goes to the soft switch, and that,

[00:07:51] Speaker 03:
would then, the soft switch, the call processing system, would bridge that call to the caller.

[00:07:56] Speaker 03:
That would allow, if you wanted to continue the call from your desk phone, your work phone, or your mobile phone, you could simply press a key and have the soft switch switch the phone, in this example, from the fixed phone, your desk phone, in this example, to your mobile phone without dropping the call.

[00:08:15] Speaker 03:
So there's no record evidence that the placement of a

[00:08:20] Speaker 03:
call processing system or soft switch in this arrangement where the soft switch is replacing the fixed phone number in this example or the mobile phone number in this example with a virtual telephone number that that was conventional or not.

[00:08:33] Speaker 03:
So that's what I'm pointing to and that is captured in the claims.

[00:08:38] Speaker 03:
The virtual telephone number is specifically claimed in claim 16, which we had contested and this is another, we believe, an error of burden shifting.

[00:08:48] Speaker 03:
We believe it's a challenger's burden to show that claim one of the 591 patent was representative.

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But claim 16 specifically calls out the virtual telephone number as an additional feature.

[00:09:02] Speaker 03:
But the novel arrangement in our view is these claims do not deal with human unavailability.

[00:09:09] Speaker 03:
There is a statement regarding human unavailability in the specification.

[00:09:13] Speaker 03:
But that's talking about when a conventional telephone system

[00:09:17] Speaker 03:
If you receive the call, the applicants point out a problem of if the call is not switched to another device, it will go to voicemail.

[00:09:26] Speaker 03:
But their proposed solution is not just directed to a general concept.

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It's to a specific technical improvement in the call flow by introducing this call processing system in the middle of the call flow.

[00:09:41] Speaker 03:
and that what the judge identifies is directed to the different set of claims, the sequential ring claims, not the single number out call claims.

[00:09:48] Speaker 03:
So even where he, what he points to as the abstract concept of human unavailability is not a description of the asserted claims, it's, sorry, the asserted single number out call claims, that's directed to different claims.

[00:10:06] Speaker 03:
And so I think that's, so the key,

[00:10:09] Speaker 03:
Error for the section 101, we believe, is the misapplication.

[00:10:13] Speaker 03:
So in step one, we do not believe the claims are directed to an abstract idea, directed to a concrete telephone system.

[00:10:21] Speaker 03:
If the court were to reach step two and find that the claims were directed to an abstract idea, we believe the court engaged in an improper fact-finding exercise, finding that the claimed accommodation was merely conventional.

[00:10:36] Speaker 03:
and hypothesizing about what a assistant may have done in the past without pointing to any record evidence that anyone had actually acted in that manner, or that if someone had acted in that manner, it would have matched the claim language.

[00:10:53] Speaker 03:
So we believe that in the second step of the Alice analysis, the district court erred in not

[00:11:01] Speaker 03:
in making fact findings and hypothesizing what might have been possible without actually referring to record evidence to support those findings.

[00:11:11] Speaker 03:
But we do believe that this case is closest to the visual memory case where, while the claims and the specification do discuss arrangements of conventional components,

[00:11:25] Speaker 03:
They're not claiming an abstract idea to which the computer or conventional components are nearly ancillary.

[00:11:32] Speaker 03:
They're, in fact, describing and claiming a system itself, and that system is patentable.

[00:11:38] Speaker 03:
The fact that it has advantages to human beings is not render it patent and eligible.

[00:11:46] Speaker 03:
The question for the court is, are the claims merely directed to an abstract idea?

[00:11:52] Speaker 03:
Is the invention merely directed to an abstract idea?

[00:11:55] Speaker 03:
And here it is not.

[00:11:56] Speaker 03:
It's directed to a functional system.

[00:11:58] Speaker 00:
So in visual memory, the claims were directed to something that improved the operation of the computer itself, specifically the memory.

[00:12:09] Speaker 00:
What is the improvement to the network itself here?

[00:12:13] Speaker 03:
Sure.

[00:12:13] Speaker 03:
The improvement is rather than requiring someone to call from their cell phone and

[00:12:22] Speaker 03:
having their caller ID published as their cell phone number, the improvement is if you have a common virtual telephone number, a common caller ID replacement.

[00:12:31] Speaker 00:
But what if someone were to say that's the abstract idea itself?

[00:12:35] Speaker 00:
Where is the improvement to this computer system?

[00:12:39] Speaker 00:
Setting the abstract idea aside.

[00:12:41] Speaker 03:
Oh, sure.

[00:12:42] Speaker 03:
So the computer system, based on interposing the call processing system between the cell phone and the party being called and programming that

[00:12:51] Speaker 03:
that call processing system in the claimed way, that call processing system can intercept the call and provide additional functionality that was not available in conventional telephones, meaning if the party that you called called you back, the call processing system could control where the call went to based on programming that wasn't available in conventional telephone systems.

[00:13:14] Speaker 03:
The conventional telephone systems at the time, they were a one-to-one relationship between the call

[00:13:20] Speaker 03:
call party and the calling party.

[00:13:22] Speaker 03:
This provides an improvement.

[00:13:24] Speaker 03:
It's an improvement where you can use multiple physical phone terminals and publish the same number so that you can control where and how and when a person can call you back.

[00:13:38] Speaker 03:
So the technical improvement is putting that call processing system in a particular place in the call flow and there's an extensive description and specification of how the call flows

[00:13:49] Speaker 03:
improve that performance of the telephone system.

[00:13:53] Speaker 01:
Let's hear from the other side and we'll save you rebuttal time.

[00:13:56] Speaker 01:
Thank you.

[00:14:01] Speaker 01:
Mr. Greens.

[00:14:09] Speaker 04:
Good morning and may it please the Court.

[00:14:11] Speaker 04:
To prevail on this appeal

[00:14:13] Speaker 04:
Appellant must first secure a reversal of the judgment of unpatentability under Section 101, which applies to all of the asserted claims, and second, with respect further to the 11 single-number out-call claims, must secure a reversal of the judgment of anticipation of those claims based on the accused broadwork's software.

[00:14:35] Speaker 04:
The record evidence in the law, we submit, compel affirmance of the district court's ruling in all respects.

[00:14:41] Speaker 04:
I'd like to start with the 101 issues.

[00:14:43] Speaker 04:
The appellant in its briefing and here this morning has said little, if anything, to say about the actual claim language at issue here, but I submit that the language of the claims tells the story of patent ineligibility under 101.

[00:14:57] Speaker 04:
These claims are quite simple claims that are directed to methods of organizing human activity, and they are written in purely functional result-oriented terms, much like the claims that this Court found to be patent ineligible

[00:15:10] Speaker 04:
in cases such as affinity labs, electric power, and in-rate TLI communications.

[00:15:16] Speaker 04:
Now the single number out-call claims are directed to the abstract idea of identifying a caller using a single representative telephone number or telephone address.

[00:15:26] Speaker 04:
As the district court correctly found, the single number out-call claims at their core involve storing data in a database, looking up that data from the database in response to the initiation of a phone call,

[00:15:40] Speaker 04:
and inserting at least a portion of that data in the already existing caller ID field.

[00:15:47] Speaker 00:
How do you respond to CallWave's argument that it's the organization of the elements in the claim that makes this something more, something different, and in particular, the use of this call processing system to be the thing that is causing the function, if you will, of changing the phone number

[00:16:09] Speaker 00:
that somehow that's something that is something more.

[00:16:12] Speaker 00:
How do you respond to that?

[00:16:13] Speaker 04:
I don't believe the appellant has specifically articulated clearly what is unconventional and innovative or inventive about an arrangement of the components here.

[00:16:26] Speaker 04:
Below the, in the summary judgment and judgment on the pleadings hearing, the district court asked

[00:16:35] Speaker 04:
counsel for the patent owner to identify what it is that, that the, that Callaway believed was non-conventional inventive here.

[00:16:47] Speaker 04:
Council admitted during oral argument that the communications protocols at issue were well-known technologies.

[00:16:57] Speaker 04:
That's at appendix 5187, page 30, lines 1 through 6.

[00:17:02] Speaker 04:
Pellin also conceded below that the hardware utilized

[00:17:05] Speaker 04:
was known at the time, that's at appendix 5188, page 34, 7 to 8.

[00:17:11] Speaker 04:
What Appellant argued is inventive is the combination of different hardware elements and then programming the interaction of those different hardware elements to provide something novel.

[00:17:24] Speaker 04:
But the claims and the specification say nothing about any particular inventive combination of the known, admittedly, conventional hardware elements.

[00:17:35] Speaker 04:
or about particular software programming to achieve any technological improvement to the call processing system itself.

[00:17:44] Speaker 04:
So this case is nothing like the post-Alice cases cited in the appellants briefs, like Enfish, McRoe, Bascom, and Amdocs, where the patents specifically disclosed and claimed technological solutions to technological problems.

[00:18:01] Speaker 01:
It's not the custom for better or for worse.

[00:18:03] Speaker 01:
to require programming details?

[00:18:06] Speaker 01:
Is it in the specification?

[00:18:08] Speaker 04:
It's not required, but where the appellant contends that the special sauce, essentially, was software programming, I believe it's incumbent on the patent owner to disclose that.

[00:18:22] Speaker 04:
And the claims themselves must recite

[00:18:25] Speaker 04:
what the inventive concept is.

[00:18:28] Speaker 04:
There's no hook in the specification here that describes a particular technical problem to be solved that was overcome by a particular combination of elements or a particular call processing soft switch on the... So what was missing?

[00:18:43] Speaker 01:
In your view, what additional information should have been included?

[00:18:48] Speaker 04:
Well, I don't think there was anything inventive here whatsoever.

[00:18:51] Speaker 04:
anything that would qualify as an inventive concept under step two.

[00:18:55] Speaker 04:
So I'm not sure what else the the patent owner could have done, but to the extent they're asserting now that there is some sort of technological problem that was solved by an inventive combination of elements and software programming, it's incumbent on them to identify where in the patent that's actually disclosed.

[00:19:14] Speaker 04:
They really can't do it.

[00:19:15] Speaker 04:
And the problem that's identified in the patent as one to be solved

[00:19:20] Speaker 04:
similar to what the judge below said about a human unavailability problem, the problem recited in the specification to be solved is supposedly the frustration and dissatisfaction of customers who are unable to connect with someone they're calling.

[00:19:36] Speaker 04:
That can lead to lost sales.

[00:19:39] Speaker 04:
So the specification says this problem gets solved.

[00:19:43] Speaker 04:
in the case of the single-numbered out-call claims by inserting into the caller ID field a representative phone number so the call party can recognize who's calling instead of, you know, it might be a spam robo-caller and you don't want to answer the call.

[00:19:57] Speaker 04:
But if you see the representative telephone number of a colleague of yours or a client, you'll pick it up.

[00:20:04] Speaker 04:
In the case of the sequential ring claims, the alleged problem of customer dissatisfaction

[00:20:11] Speaker 04:
is supposedly solved because the system will serially call one phone number after another associated with a particular scribe subscriber until the subscriber picks up the call or all the list of numbers is exhausted.

[00:20:25] Speaker 04:
That's purely a sort of a business problem.

[00:20:28] Speaker 04:
It's not a technical problem.

[00:20:30] Speaker 04:
And there's nothing in the claims of the specification that talk about a technical problem that gets solved by a particular inventive concept.

[00:20:40] Speaker 00:
So, for example, if the call processing, somehow there was something unique and different they had to do to change the call processing so that it could implement this function.

[00:20:49] Speaker 00:
Is that the kind of thing you're referring to?

[00:20:51] Speaker 00:
I mean, you said there's nothing in the specification.

[00:20:54] Speaker 00:
I'm asking you, what kind of thing do you think we should be looking for?

[00:20:57] Speaker 00:
I mean, it's kind of hard to say there's nothing.

[00:21:00] Speaker 00:
What kind of thing would be different?

[00:21:02] Speaker 00:
Do you have an idea?

[00:21:03] Speaker 04:
Well, here, as Appellant admitted below,

[00:21:06] Speaker 04:
everything disclosed in the specification about the hardware components and the particular communications technology was known, right?

[00:21:15] Speaker 04:
So what they're saying now is there's something about the combination of these known elements that provides an inventive concept, but they haven't identified what that is because it isn't there.

[00:21:28] Speaker 04:
And I can't imagine what it is they could have disclosed that would

[00:21:33] Speaker 04:
that would give credence to the notion that they'd come up with a patent-eligible invention here, Your Honor.

[00:21:43] Speaker 04:
Unless there are further questions on 101, I'll move on to the 102 issues.

[00:21:53] Speaker 04:
I did want to note first before I move on that on the issue of what the problem to be solved was not being a technical problem,

[00:22:03] Speaker 04:
Appellant stated on page 29 of its reply brief, quote, the specifications, however, teach that the S&O claims improve the telecom experience for subscribers with multiple communication devices, close quote.

[00:22:17] Speaker 04:
But an improved experience for users does not equate to a technological improvement to the call processing system itself.

[00:22:26] Speaker 04:
On the contrary, the claimed call processing system here achieves these

[00:22:31] Speaker 04:
benefits to users simply by using admittedly known conventional computer telephony tools.

[00:22:37] Speaker 04:
So in that regard, this case is analogous to cases such as in-rate TLI and content extraction, which involve claims directed to generic computer functions such as storing, retrieving, and extracting data in conventional ways without any claimed technological improvement.

[00:22:56] Speaker 04:
Now I'll move on to the 102 issues briefly in my remaining time.

[00:23:00] Speaker 04:
Regarding summary judgment of anticipation of the single-number out-call claims based on the BroadWorks software, the district court was correct in concluding that there's no genuine issue of material fact to defeat summary judgment.

[00:23:14] Speaker 00:
What about the argument that the methodology that the district court used was incorrect?

[00:23:21] Speaker 04:
Well, as I understand the argument, it's that the district court

[00:23:26] Speaker 04:
simply relied on the Van Mor exception.

[00:23:30] Speaker 04:
But in fact here, in addition to our pointing out that throughout the case, the patent owner had accused Broadworks generally, and in particular, all single-number out-call functionality within Broadworks of meeting these claims, we also put on essentially a traditional anticipation case.

[00:23:52] Speaker 04:
We put on, including through our expert, detailed analysis.

[00:23:56] Speaker 00:
with claim charts comparing the asserted claims to the prior art versions of Broadworks, showing... What do we make of the fact that maybe I'm missing it, but I didn't see that sort of analysis undertaken by the district court in this case, even if you presented it.

[00:24:16] Speaker 04:
Right.

[00:24:16] Speaker 04:
The district court looked at the material identity question.

[00:24:20] Speaker 04:
And here it's important to understand, while the appellant's briefing characterizes Broadworks Anywhere as some sort of different product,

[00:24:27] Speaker 00:
Broadworks any.

[00:24:29] Speaker 00:
How does your presentation of an alternative correct technology methodology for analyzing the one or two issue fix the district courts methodology for analyzing the one or two issue if we think there's a problem with it.

[00:24:44] Speaker 04:
First I don't think there's an incorrect methodology as we explain our brief but assuming it is yes.

[00:24:48] Speaker 04:
This Court has before it the record to affirm the anticipation finding, nonetheless, based on the extensive record evidence that Brodsoft submitted that included comparing the asserted claims to prior adversions of Broadworks that had these single-number outcall capabilities.

[00:25:08] Speaker 04:
In particular, I would direct Your Honors to the Release 8 demonstration

[00:25:16] Speaker 04:
Broadsoft's expert, Dr. Eldering, prepared.

[00:25:20] Speaker 04:
Broadsoft was able to put together a working call processing system driven by release aid of Broadworks, which came out no later than January 2003, more than a year and a half before the critical date.

[00:25:35] Speaker 04:
Our expert, Dr. Eldering, demoed that system and showed how it provided all of the aspects of the limitations of the asserted claims.

[00:25:46] Speaker 04:
He submitted the videos, and they're in the record here in the appendix.

[00:25:50] Speaker 04:
We provided DVD copies, and he provided a summary judgment declaration where he walked through his analysis of that demonstration video.

[00:25:59] Speaker 04:
Tellingly, first, after unsuccessfully moving the district court to strike the evidence from Dr. Eldering of that prior art system and its capabilities, the plaintiff here, or the patent

[00:26:15] Speaker 04:
chose not to send its technical expert, Dr. Lee Cantoni, to inspect that system.

[00:26:21] Speaker 04:
And the reason is clear.

[00:26:22] Speaker 04:
They knew what he would find in that Priorit system, and they didn't want him subjected to questioning under oath and deposition from me about the capabilities of that system.

[00:26:33] Speaker 04:
They weren't interested in discovering the truth about the Priorit Broadworks releases.

[00:26:37] Speaker 04:
Instead, they had their expert not look at the system and then

[00:26:42] Speaker 04:
rankly speculate that it may not be authentic, and the district court appropriately rejected that argument.

[00:26:49] Speaker 04:
They provided no evidence whatsoever that it was inauthentic.

[00:26:53] Speaker 04:
We had Mr. Samuel Hoffauer provide a declaration testing to how the system was put together and the authenticity of the Release 8 software.

[00:27:03] Speaker 04:
We had our expert demonstrate the system and go claim element by claim element, comparing it to the asserted claims.

[00:27:12] Speaker 04:
and they offered nothing in response other than, well, maybe this isn't the real deal, and maybe it wasn't actually released to the public.

[00:27:21] Speaker 04:
But we had release after release, after release date, up through release 11.1, also being prior art to these inventions.

[00:27:32] Speaker 04:
And we submitted evidence, again, through Mr. Hoffpower, who is the head of R&D at Broadsoft and helped develop Broadworks, that these releases

[00:27:41] Speaker 04:
All contain the same single-member out-call functionality that was shown in this Release 8 demonstration video prepared by our expert.

[00:27:50] Speaker 04:
So at the end of the day, the way this appellant challenges the 102 finding is by speculating, by asserting that well maybe these call processing functionalities that are in Release 8 were removed before it, before the release of, of

[00:28:11] Speaker 04:
the version that they actually now want to accuse after the critical date.

[00:28:14] Speaker 04:
But in fact, what they did here was they accused prior art functionalities within Broadworks.

[00:28:20] Speaker 04:
We provided them with the evidence of that.

[00:28:23] Speaker 04:
They tried to strike that evidence from the record, and the district court rejected that.

[00:28:29] Speaker 04:
And then they changed their tune and said, oh, we're only accusing this thing called Broadworks anywhere.

[00:28:35] Speaker 04:
But Mr. Hoffpower testified, and this is unrefuted,

[00:28:39] Speaker 04:
that the single number outcall functionalities within Broadworks anywhere are based on the same single number outcall functionalities that were in prior art versions of Broadworks, including through something called remote office and shared call appearance.

[00:28:53] Speaker 04:
So in sum, Your Honors.

[00:28:55] Speaker 00:
Were you aware of any cases in which the Van Moore test or methodology has been used in the way that the district court used it here, where there was

[00:29:08] Speaker 00:
the accused device and part were not the same thing?

[00:29:14] Speaker 04:
Well here the what they ended up trying to accuse just anywhere as I said under the evidence it is the same thing from a single-member out call perspective.

[00:29:24] Speaker 00:
From one perspective but they're different products.

[00:29:27] Speaker 04:
Understood.

[00:29:29] Speaker 00:
Just answer my question.

[00:29:30] Speaker 00:
But we did, we did.

[00:29:31] Speaker 00:
If you understand my question I just want a yes or a no.

[00:29:33] Speaker 00:
Are you aware of any cases

[00:29:35] Speaker 00:
where there's some alleged difference between the accused device and what is determined to be the priority and the district relied on the Van Moore line of pieces.

[00:29:46] Speaker 04:
Yes.

[00:29:46] Speaker 04:
We cited in our brief, for example, some district court cases that looked at the material identity question, including the Cummings versus Adidas case that's cited at pages 45, 46, 47, and 50.

[00:30:05] Speaker 04:
of our brief.

[00:30:08] Speaker 04:
And we talked about that case extensively on those pages.

[00:30:11] Speaker 04:
So that's an example of a case.

[00:30:15] Speaker 04:
I see that the time is up, so unless there are further questions, I'll take a seat.

[00:30:21] Speaker 01:
Is that okay?

[00:30:23] Speaker 01:
Thank you, Mr. Bell.

[00:30:32] Speaker 01:
Thank you.

[00:30:32] Speaker 01:
Mr. Bell.

[00:30:33] Speaker 03:
Thank you.

[00:30:33] Speaker 03:
If I may address the 101 issues first.

[00:30:37] Speaker 03:
And I want to point you to some specific references in the specification to counter counsel's argument that there's no discussion of either programming or anything, any specific description of how the call processing system operates.

[00:30:51] Speaker 03:
I did point earlier to Figure 31.

[00:30:54] Speaker 03:
I point specifically to Column 67, Line 29, through Column 68, Line 22.

[00:31:00] Speaker 03:
where there is a detailed and specific description of how the call processing system described in the figure as the soft switch is interposed in an unconventional way, such that where a conventional system, someone trying to call from their cell phone would call directly to the called party, instead there is a description of a unique call flow that is specifically set forth where the caller calls instead to the soft switch and the soft switch based on stored information

[00:31:30] Speaker 03:
and specific programming completes the call in a particular way that provides a technical improvement to prior telephone systems.

[00:31:38] Speaker 03:
So there is a detailed description of that, column 67, 29 to column 68, line 22.

[00:31:44] Speaker 03:
There's also a detailed and specific description of how, one example of how the caller ID is substituted in that scenario at column 66, lines 20 to 30.

[00:31:56] Speaker 03:
Council incorrectly stated as well that there's no description of software programming.

[00:32:02] Speaker 03:
There is an extensive description, the specification 70-something columns long, at a point, Your Honor, as to only one example.

[00:32:09] Speaker 03:
If you look at column 33, line 1, through column 34, line 51, there is a detailed description of variables and uses of variables in order to allow the call processing system that's claimed

[00:32:25] Speaker 03:
to perform the claimed functionality in a novel way.

[00:32:28] Speaker 03:
So if, as counsel said, to move from an abstract idea to something concrete and tangible, he indicated that some description of software functionality would be sufficient.

[00:32:40] Speaker 03:
There is extensive description of software functionality and how the call processing system is programmed contained in the specification, including to the level of detail of variable names, such as the

[00:32:52] Speaker 03:
out call timing cache at line 22, a port manager, and it goes on.

[00:32:58] Speaker 03:
So I would take issue with that as a response to the novel arrangement of the call processing system being used in a unique way.

[00:33:11] Speaker 03:
Regarding the Van Mor exception and the district court's application of that, there are several things that I wanted to take issue with.

[00:33:19] Speaker 03:
First,

[00:33:21] Speaker 03:
counsel's implication that by sending one expert instead of a different expert, that's somehow an admission that the prior art was identical to the accused product.

[00:33:30] Speaker 03:
This is a procedurally unique situation where this invalidity defense was raised, I believe it was two and a half years after the deadline for invalidity, after fact discovery had concluded, after all expert discovery was concluded, and we were given only a couple days to perform the inspection at which one of our experts was unavailable.

[00:33:49] Speaker 03:
The expert who did inspect the system did put in a declaration describing in detail how the source code for the alleged prior art was materially different and how the challenger hadn't met their burden.

[00:34:01] Speaker 03:
Dr. Luke and Tony, who was our second expert, provided a detailed declaration refuting the element-by-element analysis.

[00:34:08] Speaker 03:
And there's nothing in the record suggesting that the district court credited their expert, nor should this panel on appeal credit their expert over our expert.

[00:34:16] Speaker 03:
There's no finding of an element by element comparison, and we believe that alone is reversible error.

[00:34:22] Speaker 03:
I would point to your specific question regarding case law.

[00:34:25] Speaker 03:
I would point the panel to the Zenith v. PDI case.

[00:34:30] Speaker 03:
This is 522 Fed 3rd, 1348 at 1363.

[00:34:34] Speaker 03:
It's a 2008 Federal Circuit opinion.

[00:34:38] Speaker 03:
This is six years after Van War, where this court found that mere proof that prior art is identical

[00:34:44] Speaker 03:
in all material respects to an allegedly infringing product cannot constitute clear and convincing evidence of invalidity, anticipation requires a showing that each element of the claim at issue," it goes on, is found in a single prior art reference.

[00:34:58] Speaker 03:
So we believe there is controlling case law of this court that's directly contrary to the argument advanced by the patent challenger, and that is that the court can sidestep the requirement of an element-by-element analysis of the prior art

[00:35:12] Speaker 03:
using the fan war exception, particularly where there's a material dispute as to whether the product accused of infringement is actually the same as the product that was in the pyro.

[00:35:24] Speaker 03:
And I would strongly disagree with the many characterizations of our contentions.

[00:35:31] Speaker 03:
There is a common trade name used across products, but from our infringement contentions, which were submitted very early in the case, indeed, declaratory judgment plaintiff

[00:35:42] Speaker 03:
when opposing a motion to dismiss specifically identified the Broadworks Anywhere as the accused product.

[00:35:50] Speaker 03:
So from the outset of their declaratory judgment case, through our infringement contentions, through expert discovery, it was crystal clear that our element by element analysis of the claims was only to the Broadworks Anywhere functionality and not to any other alleged prior art products.

[00:36:08] Speaker 03:
So unless you have any further questions?

[00:36:12] Speaker 01:
Thank you very much.