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Before us for oral argument this morning two cases The first case is data engine technologies versus Google Council Foster are you?

[00:00:14] Speaker 02:
We do yeah, what?

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Okay, well let's do this and since you know I think that you

[00:00:29] Speaker 02:
That's okay.

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I'll take three minutes off your rebuttal.

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All right.

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Let's proceed.

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Council Foster.

[00:00:54] Speaker 01:
Good morning.

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May I please support?

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An issue in this case is the appeal of four patents, which the district court found patent ineligible as a result of Google's motion for a judgment on these patents.

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I'd like to start today by discussing a recent opinion from this court, the Core Wireless case, which was issued after the briefing in this matter was complete.

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So no party had the opportunity to listen to it below.

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Which case is that?

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The Core Wireless case, Your Honor.

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In Core Wireless.

[00:01:27] Speaker 03:
How do you share that?

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case with the opposing counsel?

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No, no.

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OK.

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Well, when you're going to bring a new case up, it's best as a courtesy not just to let the court know, but to let opposing counsel know as well.

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I appreciate it.

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OK.

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In that case, the court was confronted with a user interface patent.

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And the particular patent in that case related to a user interface for a

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screen with limited capacity.

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It's targeted towards mobile devices or similar types of devices.

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What the patent does is it provides summary application data in sort of a menu on the main screen.

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And then the user clicks on the summary application data, and it brings up the full application data for the application.

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This court considered that patent and found it to be patent eligible at step one of the ALIS analysis.

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And it did so on the basis that the

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claims at issue disclosed a specific manner of displaying information to solve a specific problem identified in the patent as a problem in that particular technological space.

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And the problem the patent identified is that it was difficult in the prior art systems for users to quickly and efficiently navigate to the particular screen or piece of information they were interested in.

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Were you done with the core wireless, or did you have more?

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Because I don't want to interrupt.

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The only other thing I'd say is I find it very difficult to distinguish this case from the facts of our case.

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Following on that theme, do you think that any mechanism that would facilitate navigation to, let's say, an unsophisticated user in a user interface would be patentable, or at least would

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satisfy the abstract idea test.

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Let me give you an example.

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We see icons all the time on our screens.

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They are designed to make it easier for those of us like me who don't really know, not very sophisticated using computers, to see an icon that has a picture of a little phone there.

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That's the button you push in order to make the phone work.

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Would that be patentable, that icon?

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So if I understand the hypothetical correctly, you're confronted with a patent where they invent the use of icons.

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Right.

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They don't tell you how to do it in the sense that they don't give you the code and so forth.

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But the idea is icons with a picture of a phone on it.

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That's my invention.

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Because it makes it a lot easier for people who are not sophisticated in the operations of computers to use a computer.

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So ultimately, I think that that patent would probably pass muster at step one.

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Whether or not it does in step two would be a different question.

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But at step one, I think if it's solving a particular problem it can identify in the art.

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If it says people don't use icons, they have to read text to figure out what the application is.

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And we've got a new approach to solving this user interface problem, namely making the right piece of information more quickly accessible to the user by having a pictorial representation.

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I think that probably satisfies step one after core wireless.

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Do you think that we should be looking at the time of the invention at all when we're considering step one and whether something's directed to an abstract idea or a technological innovation?

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I mean, your filing date in these patents is very early, 1992.

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So how does that play into our consideration today?

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Well, I think it's relevant to both prongs.

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I think it's probably more relevant to the second prong, where the court needs to understand what's

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routine, conventional, and well understood.

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And in order to make that determination, you can't look at what the state of the art is today.

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You have to look at what the state of the art was at the time of patenting.

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So I think it's that.

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What could happen in that intervening time, though, from 1992 until, let's say, today, that would render a claim that's directed to an abstract idea that would render that not directed to an abstract idea?

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I mean, isn't an abstract idea an abstract idea in 92, just as it probably would be in 2018?

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So I think that that's generally correct.

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Google's articulation of the test at step one, which I don't necessarily agree with, is to look at what the, at step one, to look at what the inventions claimed improvement over the prior art is.

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That's how they articulate the step one test, and to see if that claimed improvement and only that claimed improvement is abstract.

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But the Supreme Court analysis directed us under step one to determine whether the claims are directed to an abstract idea or a naturally occurring phenomena.

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Right.

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And I think under that characterization, I don't think you need to look to the time of the patent to make a step one determination, but I think you do to make a step two determination.

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What about some of the language in Enfish that talks about we're supposed to, it's relevant to ask whether the claims are directed to an improvement to computer functionality

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as opposed to being directed to an abstract idea, something that's an improvement in 1992 might not be an improvement in 2017.

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And I think that's a very fair point.

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When we look at improving computer functionality or looking at the improving of the functioning of the computer in this case, I think there's a direct line you can draw from what this court said in Enfish to what this court said in Core Wireless.

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And in the very analogous case to Core Wireless, the trading technology case that we cited below,

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which is in NFISH you had a patent that purported to solve problems related to memory storage and the processing and efficient retrieval, which is one of the sort of basic functions that we all understand that computers do.

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And since it used general purpose software to improve the computer's functionality in that area, the court ultimately found that it was patented with step one.

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In the core wireless case and in trading technologies, we're just looking at a different basic aspect of what computers do.

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In addition to storing and processing information, computers also have to take input and give output.

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And so these patents are improving the computer's ability to provide data and to receive data, which is just a basic function of computing.

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You've focused in your brief a lot on the fact that we're talking about tabs and not talking about generic modes of navigating.

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If the claims were directed not to tabs,

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per se, but rather to a means, passing means plus function for a moment, means for navigating through a multi-page spreadsheet.

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Do you think that would be an abstract idea?

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If it was directed to any means?

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To mean, yeah, just use navigation means.

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So I think that that probably would be an abstract idea.

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I think that

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What the core wireless case focuses on is a particularized configuration of the user interface.

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Because one of the claims at issue in this case seems to me to have that kind of language in it.

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Claim one of the 551 pen.

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Would you agree that that is abstract?

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If you don't have it, I would read the pertinent languages.

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I don't have it right here.

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Associating each of cell matrices with a user-settable page identifier.

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Page identifier seems to me to be pretty generic.

[00:09:14] Speaker 01:
So I think that's more specific than the example that Your Honor just gave, because here we still have a particular method of navigation.

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It's still important that in order to navigate from one sheet, well, that the sheets are associated with user-settable page identifiers.

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Well, setting aside user-settable, which seems to me not a particularly important facet, but a page identifier is just

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a way of navigating from one page to another, is it not?

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Couldn't it be like a row of buttons across the top of the display, for example?

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It could be anywhere on the display.

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So claim one of the 551 is, I think, the only one of the claims in this case that doesn't include this notebook interface limitation, and instead is directed at something a bit more general.

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So I would definitely say this claim is closer to the line, but I think it's a mistake to discount this user-settable page identifier aspect of it, especially

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given the state of the art at the time of this invention, where the ability to rename the individual subspaces in the worksheet was not routine, conventional, and well-understood.

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Now, Judge Stoll mentioned buttons, which it seems to me raises a question in my mind, at least.

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Whether buttons, say, arrayed along the edge of the sheet would count as tabs.

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We don't have a claim construction in this case of tabs.

[00:10:36] Speaker 03:
But what is your position with respect to what tabs are under these patents?

[00:10:42] Speaker 01:
Sure.

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So I think the patent makes clear that the effect of the invention is to have user interface elements that are immediately recognizable to the user and have a real-world analog.

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So they're easy for the user to figure out how to use and how to navigate.

[00:10:57] Speaker 03:
Does that get me to tabs are different from buttons?

[00:11:01] Speaker 03:
Well, so the tabs in this case are functioning as I'm actually asking you to say whether you're going to disclaim buttons to get to the bottom line.

[00:11:08] Speaker 01:
I don't want to, you know, so I think that tab is a subset of button.

[00:11:12] Speaker 03:
I think that there are things that are buttons, a subset of tabs.

[00:11:16] Speaker 01:
No, I think the buttons are a superset of tabs.

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So tabs, buttons would not be within the scope of these patents.

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If Google, of course, I guess the patents have all expired, but if Google,

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previously had decided to go with buttons instead of tabs, you would have no case against them.

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Is that your position?

[00:11:35] Speaker 01:
If the user interface element that Google was using to navigate between three pages was buttons and not tabs, we might have a read on the single claim of the 551, but otherwise correct.

[00:11:48] Speaker 02:
How does this technology improve computer functioning or bring us closer to DDT and NFIS in that it improves

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or resolves a technological problem with respect to technology, with respect to the computer.

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So the specification of the patents, and all the TAB patents in this case, share a common specification.

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The specification recites at great length problems with users' ability to utilize an electronic spreadsheet system and identify the features and functions.

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I would agree that this is an improvement of using a spreadsheet electronically, but how does that improve computer functioning?

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How does that improve a problem that's specific to the functioning of computer technology?

[00:12:44] Speaker 01:
Because part of the function of computer technology is to be able to take an input from the person who's using the computer and give the person the right output that they're looking for.

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That's a basic function of computer technology in the same way that the ability of the computer to do math is a basic function.

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That's the problem you have is that it's a basic function of computer technology.

[00:13:04] Speaker 02:
It seems that basically what we have here is a spreadsheet and you put it on a computer and say, computer, do it.

[00:13:14] Speaker 01:
So these claims don't claim the electronic spreadsheet.

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This is not the electronic spreadsheet application.

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I also think that based on the procedural posture of this case, the fact that this was decided on 12C, the specification specifically says that an electronic spreadsheet is a lot more and a lot different from just putting a paper's ledger pad on a computer.

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And I think that those allegations in the specification of this procedural posture would have to be accepted as true.

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It's in the intrinsic record that this is more than just

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electronic spreadsheet or a paper spreadsheet put onto a computer.

[00:13:52] Speaker 00:
Here's a lot of evidence that I think you had in your pleadings that I would consider in an obviousness case to be secondary considerations evidence including like a 1992 article from PC Magazine that talks about how this technology has made spreadsheets, three-dimensional spreadsheets accessible

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and that a key to that is the use of tabs.

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How does that factor into our consideration today?

[00:14:24] Speaker 01:
Well, I think looking at commercial acclaim and critical acclaim from the time of the patent is very important because you can see an objective take on what the product did, what it was good for at the time that it was made.

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And these sources, which we cite a lot of them in our briefing, what they say is they say, this is an innovation.

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They say this is a new innovation in the 3D electronic spreadsheet context.

[00:14:50] Speaker 02:
It's not boring.

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That addresses step two, doesn't it?

[00:14:53] Speaker 01:
That is a step two argument, yes.

[00:14:56] Speaker 01:
And again, just based on the procedural posture on this case, I don't think this case is exactly like the Berkheimer decision and the other courts other recent decision in this area.

[00:15:05] Speaker 01:
Because here, the majority of this information that we're citing to is intrinsic to the patent.

[00:15:11] Speaker 01:
not extrinsic.

[00:15:12] Speaker 01:
It's not allegations.

[00:15:13] Speaker 02:
What do you mean, intrinsic?

[00:15:15] Speaker 02:
Is it evidence that's contained in the specification?

[00:15:20] Speaker 01:
It's evidence that's contained in the file history.

[00:15:22] Speaker 00:
It doesn't matter anyway, right?

[00:15:24] Speaker 00:
Because under Rule 12C, the court is to consider whether there's a dispute of fact on step one and step two based on pleadings and any exhibits attached to the pleadings on the motion to dismiss for failure to state a claim.

[00:15:40] Speaker 00:
So what does it matter?

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whether it's part of the prosecution history, part of the patent, or not.

[00:15:45] Speaker 01:
So I think the difference there is exactly what this court should do with this case at step two.

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It's a question of whether we should get sent back down, be afforded an opportunity to replede and relitigate this motion again on an amended complaint, or alternatively, whether this court can just look at the intrinsic record and make a step two determination.

[00:16:03] Speaker 02:
What's the evidence that you put before in, I guess, in your motion to amend?

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that would indicate a change in the court's judgment, an abuse of discretion standard.

[00:16:18] Speaker 01:
So all of the evidence that's in the record here, all of these, the excerpts from the file history containing an affidavit by a gentleman named Jack Oswald, and I'm in the record here at 979,

[00:16:30] Speaker 01:
where during patent prosecution there was an affidavit entered which said, this is a solution to a long-standing problem of how to represent three-dimensional spreadsheet information in a format which can be easily grasped by ordinary spreadsheet users.

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Moreover, the spreadsheet notebook interface was widely considered by the industry and users to be the most important technological innovation in the field of electronic spreadsheets since the invention of the spreadsheet itself.

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Those allegations, taken as true,

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at the judgment on the pleading stage, say these patents have an inventive concept.

[00:17:04] Speaker 02:
But you're not claiming the spreadsheet.

[00:17:06] Speaker 01:
We're claiming the important technological innovation in the spreadsheet, namely our particular user interface.

[00:17:14] Speaker 01:
That's what Ms.

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Cosgrove said.

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The tabs?

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You're not claiming the spreadsheets.

[00:17:19] Speaker 01:
Right.

[00:17:19] Speaker 01:
We're claiming the tabbed user interface for a spreadsheet.

[00:17:22] Speaker 02:
You're claiming using the tabbed

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to electronically turn a page or to go to another part of the spreadsheet.

[00:17:27] Speaker 01:
The claims are substantially more specific than just using a tab.

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The claims are directed towards a particular mechanism of user interface.

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It's both the existence of the tabs, it's the ability to rename the tabs, it's the ability to use those names in your formulas.

[00:17:41] Speaker 01:
And this is where I think the problems of hindsight bias come into effect.

[00:17:45] Speaker 01:
This user interface didn't exist prior to this patent, and today it is the only user interface that anybody uses when they build a patent.

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when they built the spreadsheet.

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Every other major commercial product adopted this user interface after it was released.

[00:17:59] Speaker 00:
And this declaration that you're referring to from Mr. Oswald, that's 1994, right?

[00:18:05] Speaker 00:
So you're saying that was part of the original prosecution?

[00:18:08] Speaker 01:
That's correct.

[00:18:09] Speaker 01:
It was part of the prosecution.

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The tab patents in this case were all continuations of a prior application.

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This is from the prior application.

[00:18:17] Speaker 01:
I believe that patents the 895s.

[00:18:19] Speaker 02:
OK, you're well into your battle point.

[00:18:22] Speaker 02:
All right, thank you.

[00:18:24] Speaker 02:
Thank you.

[00:18:28] Speaker 02:
Mr. Joseph.

[00:18:33] Speaker 04:
Good morning, and may it please the court.

[00:18:36] Speaker 04:
One thing that everyone seems to be able to agree on is that just taking an old idea from the paper and pencil world and moving it into a computerized context is not by itself patent eligible.

[00:18:47] Speaker 04:
And in Data Engine's own words to the district court,

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That's what we have here.

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They told the court the inventors had the idea of importing a fairly old, fairly understandable idea into the user interface of a 3D electronic spreadsheet.

[00:19:00] Speaker 04:
And because that's directed to an abstract idea, and because there's no other inventive feature in the claims, the claims are ineligible.

[00:19:07] Speaker 00:
I have a question for you.

[00:19:09] Speaker 00:
So the district court's opinion characterizes the idea that the claims are directed to in two different ways, I think.

[00:19:19] Speaker 00:
It says that they could be directed to a broad idea of organizing information, displaying information.

[00:19:27] Speaker 00:
Then in a separate sentence, it says that it's directed to the idea of having tabs.

[00:19:35] Speaker 00:
Which do you think is the right way to characterize what these claims are directed to?

[00:19:42] Speaker 04:
What the district court said, the one I was going off of, is using notebook-style tabs to label and organize spreadsheets.

[00:19:48] Speaker 04:
So we're using the notebook-style tabs to organize and display the information.

[00:19:53] Speaker 04:
There are different words, combinations of words, that add up to that.

[00:19:55] Speaker 04:
But that is, in substance, the abstract idea here.

[00:19:59] Speaker 04:
And I don't know that there's even any dispute about that.

[00:20:02] Speaker 03:
Well, I wonder, though.

[00:20:04] Speaker 03:
Why is the use of tabs, which seems like a pretty specific and concrete notion, in what sense is that abstract?

[00:20:16] Speaker 03:
If it had said means of navigating, then sure, I understand that's abstract, because it isn't specific and concrete.

[00:20:28] Speaker 03:
But why tabs seem to me pretty concrete?

[00:20:31] Speaker 04:
Well, no more so than, say, using an index in IV against area indemnity.

[00:20:38] Speaker 03:
Indexing can be in a number of different formats, but tabs

[00:20:45] Speaker 03:
particularly tabs as described in the patent of running down the edge of the page, seems to me pretty specific, isn't it?

[00:20:54] Speaker 03:
How would you get more specific?

[00:20:56] Speaker 04:
Well, I guess there's two things.

[00:20:58] Speaker 04:
There's what the idea is, and then there's whether there's some technological innovation.

[00:21:02] Speaker 03:
Well, but focus on the word abstract, which is the word we're supposed to be using as the core notion from which we proceed.

[00:21:10] Speaker 03:
Why is tabs abstract?

[00:21:13] Speaker 03:
In what world is that an abstraction?

[00:21:15] Speaker 04:
Right.

[00:21:16] Speaker 04:
So I mean, the first thing I would readily admit is that the word abstract idea doesn't, the ordinary meaning of abstract that people use in other contexts has never been particularly informative in this one.

[00:21:27] Speaker 04:
But what this court has looked to as being an abstract idea.

[00:21:30] Speaker 03:
We keep using it, and the Supreme Court directed us to use it, so we can't ignore it.

[00:21:34] Speaker 03:
Oh, absolutely.

[00:21:35] Speaker 04:
It's just what I mean is it doesn't just take a dictionary definition from a different concept of abstract.

[00:21:39] Speaker 04:
And there are three key data points on why this idea is abstract.

[00:21:43] Speaker 04:
First, it is a method of organizing and using information.

[00:21:48] Speaker 04:
This court has consistently held that those types of methods are directed abstractly.

[00:21:51] Speaker 00:
But I thought you said it was directed to tabs.

[00:21:53] Speaker 00:
Because I just asked you, what is it directed to?

[00:21:57] Speaker 04:
Right.

[00:21:57] Speaker 04:
It's tabs.

[00:21:58] Speaker 04:
It's using tabs to organize and display information in electronic spreadsheets, just as tabs had always been used for the exact same purpose in paper spreadsheets.

[00:22:08] Speaker 04:
But it is still a method of doing that.

[00:22:10] Speaker 04:
And second, it's a very old one.

[00:22:12] Speaker 04:
which this core is considered to be an important factor.

[00:22:15] Speaker 04:
And third, it's not a technological solution to a technological problem.

[00:22:19] Speaker 00:
What about the fact that the specification talks about how in the prior, there was significant difficulty in navigating through three-dimensional spreadsheets because you had to enter in complicated commands, and this is 1992.

[00:22:34] Speaker 00:
You might even have to put in DOS commands or put in F2, Control Alt Delete or something like this, and you had to memorize those.

[00:22:42] Speaker 00:
And now there was an easy way to do it.

[00:22:44] Speaker 00:
Why isn't that a technological solution to a technical problem?

[00:22:48] Speaker 04:
Because the same, it's not computer-centric in either the problem or the solution.

[00:22:51] Speaker 00:
Software, does it have to be, when you say computer-centric, do you mean hardware?

[00:22:56] Speaker 04:
No, it doesn't.

[00:22:57] Speaker 04:
I don't mean that either.

[00:22:58] Speaker 04:
What I mean is two things.

[00:23:00] Speaker 04:
First, in the paper world, you have lots of spreadsheets, lots of pieces of paper.

[00:23:04] Speaker 04:
You have the same problem.

[00:23:05] Speaker 04:
You need to organize them to make it easier for the user to access them.

[00:23:08] Speaker 04:
So what do people do in the paper world?

[00:23:10] Speaker 04:
put pages on top of one another, tab them so you can easily go to one.

[00:23:13] Speaker 04:
Then we have, after paper spreadsheets, we have electronic spreadsheets.

[00:23:19] Speaker 04:
With 3D electronic spreadsheets, the exact same problem arose.

[00:23:22] Speaker 04:
Loss of sheets, how do you make it easy for the user to get to them?

[00:23:25] Speaker 04:
The solution, the exact same one people had always used in the paper world.

[00:23:29] Speaker 04:
Tab them, let the user choose the names on the tabs, click on the tabs.

[00:23:33] Speaker 03:
I'm sorry, go ahead.

[00:23:34] Speaker 00:
No, you go ahead, please.

[00:23:37] Speaker 03:
A lot of what is

[00:23:40] Speaker 03:
referred to in the briefs strikes me as having overtones of obviousness.

[00:23:49] Speaker 03:
So to tease that part of the case out and suppose that there had never been any use of tabs.

[00:23:58] Speaker 03:
The 1877 patent and all the prior and subsequent uses of tabs never happened.

[00:24:03] Speaker 03:
So the very first time any tab had ever been used was in this patent.

[00:24:09] Speaker 03:
Would you still say the use of tabs was abstract?

[00:24:15] Speaker 04:
It's a tough one because, and here's why, the use of tabs would still, assuming there are still paper spreadsheets with lots of spreadsheets to organize, we don't change any other historic facts, the solution of using tabs would still apply equally self-problems in the paper and the computer.

[00:24:30] Speaker 03:
Right, it's just that the problem had never been solved in the paper setting.

[00:24:33] Speaker 03:
Right.

[00:24:34] Speaker 03:
So would it still be abstract?

[00:24:38] Speaker 04:
I'm not sure, because again, if it's really not computer-centric, and the problem is, the reason it's hard to get my head around it is that people would have had to be really obtuse for a very long time not to put that up.

[00:24:48] Speaker 04:
Well, of course they would, but that's, you know, it's counterfactual, but... I understand, so hypothetical, and I'm not meaning to fight it.

[00:24:54] Speaker 04:
It's the reason it's so hard to analyze is that, and the reason I haven't seen it is that.

[00:24:57] Speaker 04:
But if it is an abstract idea, I mean, if it's an idea that applies in equally context, there's no computer-centric to it, and this is the other key point.

[00:25:05] Speaker 04:
It's different if there's some technological obstacle to be overcome in implementing it.

[00:25:10] Speaker 04:
If the idea here is to put tabs in a 3D electronic spreadsheet, if there's some technological obstacle to be overcome, and there's a specific technological way of making that happen, being able to add this to a computerized context, then it's a different setup.

[00:25:25] Speaker 04:
But I was going to say here, there's no indication whatsoever, if there were any technological obstacle to importing this old idea from the paper world,

[00:25:33] Speaker 04:
to do exactly the same thing in this electronic context.

[00:25:36] Speaker 04:
The patent applicant was blissfully unaware of any technological obstacles, because the patent doesn't identify any, and the claims don't afford to solve it.

[00:25:46] Speaker 03:
So that all feels like invalidity, not ineligibility to me.

[00:25:51] Speaker 03:
I mean, it sounds like you're making an obviousness argument.

[00:25:54] Speaker 04:
Well, there is some overlap between 101 and 103.

[00:25:56] Speaker 04:
I mean, that's been phrased oftentimes.

[00:25:59] Speaker 00:
But even when we're looking at just whether something's directed to an abstract idea.

[00:26:03] Speaker 04:
Well, I was going to say, at the first step one, whether it's directed to an abstract idea, honestly, I thought that was going to be it.

[00:26:09] Speaker 04:
I mean, it just under this court's precedence, you take an idea out of the paper world, you put it into the electronic world to do the same thing that has been treated as directed to an abstract idea.

[00:26:19] Speaker 04:
And the question, even if it's just one of many organizational methods, in say, again, IV against eerie indemnity,

[00:26:26] Speaker 04:
Again, it was a specific organizational method.

[00:26:28] Speaker 04:
The court recognized maybe other ways of organizing.

[00:26:31] Speaker 04:
But this one comes from the paper world.

[00:26:32] Speaker 04:
It's doing the same thing here.

[00:26:33] Speaker 04:
It's abstract.

[00:26:34] Speaker 04:
Let's find out if there's something technological about it.

[00:26:37] Speaker 04:
The difference, though, between obviousness and 101, which is really important, is that if it was just a straight up 103 case, the question would be, is there anything obvious about the clients?

[00:26:46] Speaker 04:
And the non-obvious thing might be the unpatentable, ineligible subject matter.

[00:26:51] Speaker 04:
The abstract idea could give rise to, I think, there.

[00:26:55] Speaker 04:
with 101 is that if a claim is directed to an abstract idea, if we're in this category of cases we're talking about here after Alice, the question then is, is there something apart from the abstract idea, some other feature, which could just be a technical issue?

[00:27:08] Speaker 00:
Can I go back to just the idea of the abstract idea and talking about this?

[00:27:11] Speaker 00:
One of the things that I had asked the appellant was, how does the time, 1992, that this goes back to 1992, how does that factor into our analysis today?

[00:27:24] Speaker 00:
bearing in mind that you've talked a lot about how just taking something that exists in paper form and just putting it on a computer could be abstract.

[00:27:36] Speaker 00:
But we're talking about 1992, and how much is that a technological innovation in 1992?

[00:27:42] Speaker 00:
Do we have to consider the time period when we're looking at the step one and step two analysis?

[00:27:48] Speaker 04:
I think the time period comes in.

[00:27:50] Speaker 04:
I mean, the most important thing to look at here is really the specification, right?

[00:27:52] Speaker 04:
So the specification does identify, is going to talk about the time period, what's known, what's not.

[00:27:58] Speaker 04:
And so in that sense, it comes in at least that way.

[00:28:01] Speaker 04:
But the important thing here is write tabs used for the same purpose in the pen and paper context.

[00:28:05] Speaker 04:
Everyone here has been around for 100 years as of 1992.

[00:28:07] Speaker 04:
3D electronic spreadsheets, the specification emphasizes.

[00:28:12] Speaker 04:
That was also there.

[00:28:14] Speaker 04:
And the argument they've made in this court is that 3D electronic spreadsheets were a new and evolving relatively new technology that created this problem.

[00:28:22] Speaker 04:
When spreadsheets went 3D electronic, you then had this problem with electronic spreadsheets, same problem with paper spreadsheets.

[00:28:28] Speaker 04:
So what does the next person to come along do?

[00:28:30] Speaker 04:
Okay, let's solve this new problem with the same old solution that's always been out there.

[00:28:34] Speaker 04:
And so if we were back before there had been 3D electronic spreadsheets,

[00:28:38] Speaker 00:
Then we'll be talking about whether 3D electronic spreadsheets... How do you respond to all the secondary considerations evidence, including the 1992 PC Magazine article that talks about... I mean, there's a lot of evidence here that counts how great these tabs are and how they make it so they have made three-dimensional spreadsheets usable.

[00:28:57] Speaker 00:
I mean, how do you respond to that when you're talking about, oh, you're just taking something that exists in paper and just putting it on the computer?

[00:29:06] Speaker 04:
Well, because it doesn't matter whether you're the first to implement an abstract idea with general computer technology.

[00:29:13] Speaker 04:
You know, like in SQL, great invention, first to do it, still ineligible.

[00:29:17] Speaker 04:
It's the same with abstract ideas.

[00:29:19] Speaker 04:
If you're the first to get there.

[00:29:20] Speaker 04:
In Alice, the problem wasn't that this was the second person to mitigate risk with the computer.

[00:29:24] Speaker 04:
The problem was that it was just to mitigate risk with the computer.

[00:29:27] Speaker 04:
So even if they were the first to do it, OK, then it would be novel, 102 to take care of.

[00:29:35] Speaker 04:
But that doesn't change whether it's directed to an abstract idea with nothing else in terms of a specific technological obstacle to be overcome.

[00:29:43] Speaker 03:
As one can tell from looking at the table of cases in the two briefs, we have a lot of cases in this area now since Alice and some before.

[00:29:53] Speaker 03:
Yes.

[00:29:54] Speaker 03:
What do you think?

[00:29:55] Speaker 03:
Well, let me ask a two-part question.

[00:29:56] Speaker 03:
First, what do you think are your strongest cases

[00:30:00] Speaker 03:
in support of the judgment in this case, number one.

[00:30:04] Speaker 03:
And number two, do you want to comment on core wireless?

[00:30:08] Speaker 04:
Yes, thank you.

[00:30:09] Speaker 04:
In terms of good cases, in terms of others that involve computer interfaces taking something whole, putting it in a computer interface.

[00:30:17] Speaker 03:
That's the closest analog, I guess.

[00:30:18] Speaker 04:
Right.

[00:30:19] Speaker 04:
And the three best there are Affinity Labs, IV against, sorry,

[00:30:27] Speaker 04:
Affinity Labs, number one, which is a graphical user interface with a menu of options.

[00:30:32] Speaker 04:
IV against Capital One, which was an interface for displaying and organizing.

[00:30:35] Speaker 03:
There are two Capital One cases.

[00:30:36] Speaker 03:
You mean the one in 793?

[00:30:39] Speaker 04:
Sorry, the one involving an interface for displaying and organizing data in XML documents.

[00:30:43] Speaker 04:
OK, I think that's the later one.

[00:30:45] Speaker 04:
I believe so.

[00:30:46] Speaker 00:
Yeah, OK.

[00:30:46] Speaker 00:
I think that's the later one.

[00:30:47] Speaker 04:
And then IV against Jerry Indemnity.

[00:30:49] Speaker 04:
I think the same point holds there.

[00:30:53] Speaker 04:
that indexing computer records where, again, you're taking organizational concepts from the paper world, you're putting them in an interface, but you're just having them do the same thing they used to do without any technological obstacles to be overcome and incorporating them.

[00:31:04] Speaker 00:
What was the third case that you mentioned?

[00:31:08] Speaker 04:
Sorry, IV against eerie indemnity, which is indexing computer records in a computerized context.

[00:31:13] Speaker 04:
Now, Symantec is important, too, because for the claims that were unanimously held to be ineligible, it was electronic mail.

[00:31:22] Speaker 04:
Filtering electronic mail.

[00:31:23] Speaker 04:
Okay, paper mail, corporate mail rooms, filtered paper mail according to rules and specifications and so forth.

[00:31:29] Speaker 04:
Then we came along and had electronic mail, just as we now have electronic spreadsheets to paper spreadsheets.

[00:31:34] Speaker 04:
The solution was, filter the electronic mail using principles that were comparable to what had been used on the paper side.

[00:31:39] Speaker 04:
The court unanimously held that's ineligible as a matter of law.

[00:31:43] Speaker 04:
And it's the same point.

[00:31:43] Speaker 04:
We're taking the solution from paper spreadsheets, supposed to paper mail, putting it over here for electronic spreadsheets, supposed to electronic mail,

[00:31:51] Speaker 04:
without any technological obstacles to be able to come in burying up the two, and without any other separate inventive feature.

[00:31:59] Speaker 04:
So those, I think, are our best cases, and are pretty darn on point, I think.

[00:32:03] Speaker 04:
Now, with the newer Core Wireless case, it's very similar to the older Trading Technologies case, the point there being that you have a problem that arose uniquely in a specific technological context with a solution that was then

[00:32:18] Speaker 04:
new for that technological context.

[00:32:20] Speaker 04:
So for example, in trading technologies, the core went out of its way to emphasize, the problem is created by electronic trading, which was new, and the solution then was also new.

[00:32:31] Speaker 00:
For core wireless, the problem was unique to very- Why isn't that the same here, where you've got these three-dimensional spreadsheets and there's a problem in navigating through them?

[00:32:42] Speaker 04:
Because it's the same problem that you had with paper.

[00:32:44] Speaker 04:
If I take a whole bunch of paper spreadsheets and they're all over the place,

[00:32:48] Speaker 04:
How do I get from one to the next?

[00:32:50] Speaker 04:
The answer is, well, stack them up so that it's easy to get the notebook, and tab them so I can flip on a tab.

[00:32:56] Speaker 04:
And there we have it.

[00:32:57] Speaker 04:
There are a lot of other technical questions.

[00:32:58] Speaker 00:
Is there any evidence that people were using buttons like that to navigate in 1992?

[00:33:02] Speaker 04:
I can say, well, first, yes, but then I'm going to emphasize it's not an important part of what we view as our appeal.

[00:33:12] Speaker 04:
The yes is that with Lotus 123, and this is in the intrinsic record,

[00:33:15] Speaker 04:
They had cascaded windows, you know, the old windows format.

[00:33:18] Speaker 04:
You have cascaded windows with the page identifier identifiable for each.

[00:33:21] Speaker 04:
You need to click on the page identifier for a cascaded window to get to it.

[00:33:24] Speaker 04:
That's more of our 102103 case.

[00:33:28] Speaker 04:
But in terms of eligibility, which is why we, for this motion, we're giving them that this is the first time that anyone ever did this, and that's your question.

[00:33:36] Speaker 04:
But for purposes of this case, the point, though, is just that say that they were the first people to put any form button

[00:33:43] Speaker 04:
to use any form of button.

[00:33:44] Speaker 04:
As long as buttons have previously been used in the real world for the same thing, the idea of just importing it over is the same as you had in Symantec, as you had in all the other three cases I just ran through.

[00:33:55] Speaker 04:
Just taking an idea from the paper world, bringing it into the computer world, do the exact same thing, without any technical, the key thing, without any technological difficulty in marrying up the two.

[00:34:05] Speaker 02:
Any questions?

[00:34:07] Speaker 02:
Sorry, do you have any questions?

[00:34:08] Speaker 02:
No.

[00:34:08] Speaker 02:
Okay, thank you very much.

[00:34:11] Speaker 02:
Counselor, we'll restore you back to four minutes of your time.

[00:34:18] Speaker ?:
Thank you.

[00:34:18] Speaker 01:
The first thing I want to say is I want to say if I had come in here today defending the first patent that claimed a paper physical tabbed notebook, and I was facing a 101 challenge, I think I would be very surprised.

[00:34:31] Speaker 01:
Whatever the words abstract idea mean, they don't mean a physical concrete book.

[00:34:36] Speaker 01:
And so the suggestion that I think

[00:34:39] Speaker 01:
that a tabbed notebook is an abstract idea is always one I've struggled with.

[00:34:43] Speaker 01:
That's why that 1877 patent is in the claims.

[00:34:46] Speaker 01:
And if you take a non-abstract idea and you put a non-abstract idea on a computer, putting it on a computer doesn't render it abstract.

[00:34:59] Speaker 01:
And so Google tries to sidestep this problem by saying, well, you didn't invent tabs.

[00:35:04] Speaker 01:
Tabs are old.

[00:35:05] Speaker 02:
But you do know that

[00:35:09] Speaker 02:
Merely putting an abstract idea on a computer doesn't render it non-abstract.

[00:35:14] Speaker 01:
Correct.

[00:35:15] Speaker 01:
The situation we're dealing with here is sort of the converse of that.

[00:35:18] Speaker 01:
It's a concrete non-abstract idea being imported into the computer context.

[00:35:23] Speaker 02:
What do you mean a concrete non-abstract idea?

[00:35:27] Speaker 02:
I mean, these are tabs.

[00:35:29] Speaker 01:
A tab notebook.

[00:35:30] Speaker 02:
How about a dog year on a book?

[00:35:33] Speaker 01:
It might not be very exciting, but it's not abstract either.

[00:35:36] Speaker 01:
It's a physical dog year on a book.

[00:35:38] Speaker 02:
If I say on the computer, I'm going to the book that I read, which, in fact, is out there, right?

[00:35:46] Speaker 02:
You can dog-eer a page on a book.

[00:35:50] Speaker 02:
Doesn't that all go to the abstract notion of organizing material in a way that you can access it easily?

[00:36:01] Speaker 01:
No, I don't think that it does.

[00:36:03] Speaker 01:
I think these particular concrete innovations, some of which, yeah, are very old, like dog-earing a page or putting tabs together, these concrete organizational mechanisms are not abstract ideas.

[00:36:16] Speaker 01:
So they're not abstract if they're sitting in a paper notebook.

[00:36:19] Speaker 01:
They don't suddenly become abstract when you move them into the electronic context.

[00:36:24] Speaker 03:
The other thing I wanted to say is... Are you saying then that generically claiming

[00:36:30] Speaker 03:
modes of organization may well be abstract, but claiming specific modes of organization or indexing are not.

[00:36:41] Speaker 01:
That's right.

[00:36:41] Speaker 01:
All of the things that we were just talking about, dogearing, tabs, all the other organization mechanisms, would generally be described by the concept of methods of organizing information.

[00:36:51] Speaker 01:
I think that's an abstract idea.

[00:36:53] Speaker 02:
I think if you take a particular- This is not a method of organizing information?

[00:36:57] Speaker 01:
This is a particular non-abstract

[00:37:01] Speaker 01:
system.

[00:37:02] Speaker 02:
No, no, that's not what I asked.

[00:37:04] Speaker 02:
Is this a method for organizing information?

[00:37:06] Speaker 01:
Tabs are a method of organizing information.

[00:37:10] Speaker 01:
Yes.

[00:37:10] Speaker 01:
In the same way that any physical object is a individual type of some sort of an abstract idea.

[00:37:17] Speaker 01:
We could say things to sit on that might be an abstract idea.

[00:37:20] Speaker 01:
It doesn't make chairs abstract.

[00:37:22] Speaker 03:
Do you think you could get a patent on, let's say, the Dewey Decimal system, the library Dewey Decimal

[00:37:31] Speaker 03:
organizational system.

[00:37:33] Speaker 01:
I think you probably could, if you're the first person to design that particular, if you're Dewey and you're designing that particular system of indexing.

[00:37:41] Speaker 01:
Yes, I think that's patentable.

[00:37:44] Speaker 02:
How about organizing information according to the alphabet?

[00:37:50] Speaker 01:
So I think there we're starting to tread into a different potential category of problems that may or may not be now in the realm of natural phenomenon or

[00:37:58] Speaker 01:
something of that nature, because we're getting close to laws of nature when we're talking about the basic laws of evolution.

[00:38:04] Speaker 02:
I have a stack of resumes.

[00:38:06] Speaker 02:
I'm going to put all the A's first, and underneath I'm going to put the B's, then the C's.

[00:38:13] Speaker 02:
That's a method of organizing information.

[00:38:16] Speaker 01:
That is a method of organizing.

[00:38:17] Speaker 02:
And you would say that that's also a concrete, non-abstract idea?

[00:38:22] Speaker 01:
I think it's a concrete method of organization.

[00:38:24] Speaker 01:
Now, we're getting more and more removed from a specific embodiment.

[00:38:28] Speaker 01:
I think the difference is, under this court's jurisprudence, I think the Dewey Decimal System is a lot easier an argument to make than the ABCD or a one, two, three, four kind of organizational scheme.

[00:38:39] Speaker 01:
But I think that an idea doesn't become abstract because it's simple.

[00:38:45] Speaker 01:
And it doesn't become abstract because it's old.

[00:38:46] Speaker 01:
It becomes abstract because it's abstract.

[00:38:49] Speaker 01:
That's the word we have to use.

[00:38:52] Speaker 02:
The big issue that we have, I think, in these cases is that an abstract idea does not become non-abstract simply because it's used on the computer.

[00:39:02] Speaker 02:
To me, that's the big issue, step one.

[00:39:06] Speaker 01:
That's right.

[00:39:07] Speaker 02:
And so, again, I think that this case... We do have cases that say, well, in these instances, an abstract idea is rendered non-abstract.

[00:39:15] Speaker 02:
And that's what ENFISH is, DDT, right?

[00:39:19] Speaker 02:
But those go towards the improvement of technology, the functioning of a computer.

[00:39:25] Speaker 02:
And that's much different than what we have here.

[00:39:30] Speaker 02:
I mean, I haven't heard yet that this invention, the use of the tabs, improves the functioning of the computer.

[00:39:40] Speaker 02:
It improves the technology or resolves a technological problem or barrier or challenge with respect to

[00:39:49] Speaker 02:
the functioning of the computer.

[00:39:51] Speaker 01:
That is exactly what the claims say, that the specification says that this patent does.

[00:39:55] Speaker 01:
It solves a problem with computerized electronic spreadsheets by using this particular user interface.

[00:40:03] Speaker 01:
Yes, the solution here is specific to a type of software, but it is improving the technological function of that type of software.

[00:40:13] Speaker 03:
Mr. Chesver cited several cases.

[00:40:16] Speaker 03:
One other that

[00:40:18] Speaker 03:
comes to mind as being, at least on its face, seeming to be favorable to his theory in this case, is internet patents.

[00:40:31] Speaker 03:
You cited that in your brief.

[00:40:32] Speaker 03:
But could you comment briefly on that case?

[00:40:34] Speaker 03:
Because that did involve a user interface for navigating through online, in that case, applications.

[00:40:47] Speaker 01:
The question that that line of cases and the cases that my colleague cited and the cases we cite in our brief, the distinction that's being teased out there is whether the real claimed focus is a user interface or whether the displaying steps are merely display the results.

[00:41:08] Speaker 01:
So in a number of the cases he cited, like the second of those IV versus Capital One cases, really what those claims are directed at is they're directed

[00:41:16] Speaker 01:
doing some processing on XML and then just display the results to the user.

[00:41:21] Speaker 01:
And so we're certainly not saying that any patent that happens to contain a display step suddenly is patent eligible.

[00:41:27] Speaker 01:
But if you are claiming a particularized user interface to fix a particular problem in a technological context.

[00:41:33] Speaker 03:
But it struck me, and maybe I'm misreading the internet patents case, but it struck me that internet patents was more in the nature of using the icons to advantage.

[00:41:46] Speaker 03:
for a user.

[00:41:49] Speaker 03:
Is that a fair characterization of the case?

[00:41:52] Speaker 01:
I think that's a fair characterization of the claims in the case.

[00:41:55] Speaker 01:
But I think the distinction between this case and that case is that here we're claiming the patents recite a very particular problem with the user interface.

[00:42:08] Speaker 01:
And the solution activity, the invention, is to fix the user interface problem.

[00:42:13] Speaker 01:
And I think that that is distinct from

[00:42:16] Speaker 02:
Okay, we thank you very much.

[00:42:20] Speaker 02:
We thank the party for the arguments in this case