[00:00:45] Speaker 03:
The next argued case is number 17, 1795.

[00:00:49] Speaker 03:
Integrated technological assistance against the first Internet bank of Indiana.

[00:00:56] Speaker 03:
Mr. Zapata.

[00:00:58] Speaker 00:
Thank you, Your Honor.

[00:00:59] Speaker 00:
May it please the Court.

[00:01:00] Speaker 00:
Your Honors, I'm here to make three main points today.

[00:01:04] Speaker 00:
These claims are not abstract and are therefore eligible under Section 101.

[00:01:09] Speaker 00:
Even if this Court could consider that these claims are abstract, when you consider the claim terms individually,

[00:01:15] Speaker 00:
and as an ordered combination, you can see that they add significantly more to any abstract idea.

[00:01:21] Speaker 00:
Finally, the district court erred when it dismissed these claims on remotion under 12b6.

[00:01:27] Speaker 00:
Turning to the patents themselves, when you look at these claims, they are not abstract for three reasons.

[00:01:33] Speaker 00:
First, there is legitimate structure here.

[00:01:36] Speaker 00:
It is a tangible machine.

[00:01:38] Speaker 00:
Second, when you compare these claims to the claims of other patents analyzed under section 101,

[00:01:43] Speaker 00:
You see that they are distinguished from those found to be ineligible.

[00:01:47] Speaker 00:
And finally, this is an improvement in computer technology.

[00:01:51] Speaker 00:
It is a computer-rooted solution.

[00:01:53] Speaker 00:
Turning to the structure aspect.

[00:01:56] Speaker 00:
There are particularized pieces of structure here.

[00:02:00] Speaker 00:
This is a machine.

[00:02:01] Speaker 00:
It may be a machine containing computer components, but it is a machine nonetheless.

[00:02:05] Speaker 00:
I can build it.

[00:02:06] Speaker 00:
I can arrange the components.

[00:02:07] Speaker 00:
I can sit it here.

[00:02:08] Speaker 04:
Well, we know that simply being a computer is not enough of a machine to learn patentability.

[00:02:15] Speaker 00:
Exactly, Your Honor.

[00:02:16] Speaker 00:
And so we look, though, that we have particularized components.

[00:02:19] Speaker 00:
We're not merely looking at a machine similar in the way that Alice did, where it just said, well, these are sort of generic computer components.

[00:02:27] Speaker 00:
We're talking about particular structural components, those being, for example, the interactive voice response system or the IVR.

[00:02:35] Speaker 00:
This is something that the patents call out themselves as a particular structure, something FIB acknowledges as a structure, and this is not something that is a generic component.

[00:02:44] Speaker 00:
This is not something in an off-the-shelf computer.

[00:02:46] Speaker 00:
Additionally, these computers used adapters in a particular way, and this is mentioned in the declaration that was contained in the prosecution history.

[00:02:56] Speaker 00:
Those adapters were configured in a new way in this particular system to allow the conversion of data languages, for instance, data languages from

[00:03:05] Speaker 00:
Financial Institution A and Financial Institution B, which often and usually were not using the same data languages.

[00:03:12] Speaker 00:
And this is something we've described in the other declarations submitted in this case.

[00:03:17] Speaker 00:
Additionally, many of the functional limitations invoke structure.

[00:03:22] Speaker 00:
For example, if you turn to the automated modes portion of these claims, this is something that the declaration and the prosecution history also addressed.

[00:03:30] Speaker 00:
That also addressed that that inferred usages of transfers via

[00:03:34] Speaker 00:
asynchronous transfer mode.

[00:03:36] Speaker 00:
And if you look at the figure in the provisional patent application, which contains an outlay of a very particularized set of components, you'll see that it contains something in there called an ATM switch.

[00:03:47] Speaker 00:
That is in reference to this asynchronous transfer mode.

[00:03:50] Speaker 00:
And by the way, when we're talking about asynchronous transfer mode, we're talking about a mode of transferring data in particularized digitized packets.

[00:03:59] Speaker 00:
So when you start to put these things together, you see that you have some non-generic components arranged in a particular way here.

[00:04:06] Speaker 00:
This is not just a computer-readable medium or things of that nature.

[00:04:10] Speaker 00:
Additionally, presented to the district court and included in the record here.

[00:04:15] Speaker 01:
But I guess the question is whether those other features that you say exist here are invented, right?

[00:04:22] Speaker 01:
At step two of Alice.

[00:04:24] Speaker 00:
Yes, and I think that would go to step two.

[00:04:26] Speaker 00:
But I mean, putting aside the fact that

[00:04:29] Speaker 00:
those features we don't believe are abstract, then when you consider them individually and as an ordered combination, and this goes all the way back to Diamond v. Deer, you see that that configuration is something different.

[00:04:40] Speaker 00:
And when you look at FIB's analysis of these particular limitations and these particular features, and it's the same way the district court looked at it, and this is our complaint in what this court has addressed in BASCOM, is that they effectively said, well, IVR was in use before, and adapters were in use before,

[00:04:58] Speaker 00:
And the internet was in use before, which was kind of an extraneous point when you look at that.

[00:05:04] Speaker 00:
But even if all of these things were generic components in use before, that doesn't destroy eligibility.

[00:05:11] Speaker 00:
Old things combined in a new way, in a new combination, which we have here, is something that can be invented.

[00:05:19] Speaker 00:
So even if we look at it from the significantly more perspective, we think that passes muster as well.

[00:05:24] Speaker 00:
And we think it's an easier question on the abstract front, because it's so clearly not.

[00:05:29] Speaker 00:
But the fact is, when you look at those features, as described by the Lamont Declaration, for example, he described how this was done previously.

[00:05:38] Speaker 00:
And this kind of brings us back to why this is a technological solution as well.

[00:05:44] Speaker 00:
When you look at how banks were doing this previously or financial institutions in general, you see that there would be a ledger at Institution A and a ledger at Institution B. There would be a bunch of manual steps in between.

[00:05:56] Speaker 00:
There would be reconciliation.

[00:05:58] Speaker 00:
and then often on a T plus two or two day later basis, you would have some sort of access to the funds.

[00:06:05] Speaker 00:
Now, that is not at all what we're claiming here.

[00:06:08] Speaker 00:
This is a computer solution because banks couldn't communicate previously to the invention.

[00:06:17] Speaker 00:
They couldn't communicate because, again, they were using these different kinds of data languages, they were using different security protocols, they were using different things.

[00:06:26] Speaker 00:
And so when FIB and the district court pointed to statements in the patent specification that says specialized hardware isn't required, FIB presents that very misleadingly.

[00:06:37] Speaker 00:
It's taken very much out of context.

[00:06:39] Speaker 00:
What that statement means is, and this is kind of the genius, the brilliance of the invention here is, is you could have Institution A doing its thing, Institution B doing its thing, and I could plug this right in the middle and allow these transfers to occur at any time from any place.

[00:06:54] Speaker 00:
This is not something that was achievable at the year of the time of the invention.

[00:06:58] Speaker 00:
It was back in 2000 when these were filed.

[00:07:02] Speaker 00:
This court cannot have its judgment clouded by the viewpoints of today.

[00:07:06] Speaker 00:
This is another request that FIB makes, which is something that should be summarily rejected by this court.

[00:07:13] Speaker 00:
FIB asked this court and the district court to look at it from the viewpoint of anyone alive today.

[00:07:20] Speaker 00:
No claims have ever been analyzed or construed from that perspective.

[00:07:25] Speaker 00:
The claims were always viewed from the perspective of the skilled artisan.

[00:07:29] Speaker 00:
ITS presented information from the skilled artisan.

[00:07:33] Speaker 00:
Intrinsic evidence from the prosecution history described the claim terms and how they should be construed.

[00:07:41] Speaker 00:
It described why these arrangement of components were something new and why it was important.

[00:07:46] Speaker 00:
It referred to, again, that figure in the provisional application, which both the district court and FIB appeared to ignore

[00:07:53] Speaker 00:
that has very particularized structures arranged in a particular way.

[00:07:58] Speaker 00:
And Your Honor, this goes a little bit back to the inventive concept point, is that when you look at some of the cases that say, well, even if we took the claims and we imported every part of everything from the specification into the claims, you don't have something that possesses an inventive concept.

[00:08:15] Speaker 00:
Here, that's certainly not the case.

[00:08:17] Speaker 00:
If you took all of those features and imported them into the claims, you end up with a very narrow embodiment

[00:08:23] Speaker 00:
that contains very particularized structures arranged in a specific way directed to a particular solution.

[00:08:30] Speaker 00:
All of those things are very critical in this case, and those are the things that have been overlooked by the district court and glossed over by FIB.

[00:08:38] Speaker 00:
And one of the reasons I want to express why the structure of this is something that wasn't generic, in the record before this court and presented the district court, the inventors were working on prototypes at the same time that they were putting this patent together.

[00:08:52] Speaker 00:
They were quoted roughly $2.5 million of a price to build this system.

[00:08:58] Speaker 00:
Now, I know computers were more expensive in the year 2000, but a generic off-the-shelf computer was certainly not $2.5 million.

[00:09:05] Speaker 00:
That tells us that there's some particular components here arranged in a particular way, and this is exactly what that letter discussed.

[00:09:13] Speaker 00:
And so even if these were old components, we're at least doing something new with them and putting them together in a different way.

[00:09:22] Speaker 00:
Now, one of the things that the district court failed when it declared that the claims were abstract, it said that, well, abstract, you know, this doesn't seem abstract on its face.

[00:09:34] Speaker 00:
These fund transfers don't seem abstract right away, but abstract in the context of Alice seems to mean something different.

[00:09:42] Speaker 00:
And then said, it didn't explain that abstract, it didn't explain what that different meaning was.

[00:09:47] Speaker 00:
And then said, well, the courts have gone and compared claims of the instant case to those of old cases.

[00:09:52] Speaker 00:
And then it says it's doing that, but then makes the statement that when you compare these claims or when you compare this concept to the category of cases, the category of concepts in other cases, then you see that this is the same.

[00:10:06] Speaker 00:
That's not the test.

[00:10:07] Speaker 00:
The test is to compare claims against claims.

[00:10:10] Speaker 00:
The district court merely compared concepts.

[00:10:13] Speaker 00:
And of course, you're going to end up with a decision that this is abstract if you are

[00:10:17] Speaker 00:
on tethering the meaning of the claims that far and overgeneralizing things as far as they did.

[00:10:22] Speaker 00:
So it's no surprise that the court ended up at that conclusion.

[00:10:25] Speaker 00:
And then when the court assessed whether or not there were significantly more, it merely referred to certain portions of the specification for things like mobile phones, the internet, and such, and didn't ignore the particular aspects that we have discussed here.

[00:10:39] Speaker 00:
Because of these things, the district court prematurely dismissed this under a 12b6 motion.

[00:10:45] Speaker 00:
it didn't fully consider these issues.

[00:10:48] Speaker 00:
Section 101 is a question of law with underlying issues of fact.

[00:10:52] Speaker 00:
Now, FIB says that the court shouldn't have considered any of the extrinsic facts in front of the district court.

[00:10:58] Speaker 00:
But instead, FIB relies on mere attorney argument, which is not evidence.

[00:11:03] Speaker 00:
We have presented important facts, facts that offer context to the claims, facts that show how the claims should be construed, and that should not be ignored by this court, and it should be given at least enough basis

[00:11:15] Speaker 00:
to overcome the 12b6 motion to dismiss.

[00:11:17] Speaker 00:
I think I'm in my rebuttal time, so should I sit down?

[00:11:20] Speaker 00:
Are there any questions from the bench, Your Honors?

[00:11:23] Speaker 03:
Any questions at the moment?

[00:11:26] Speaker 00:
Thank you.

[00:11:27] Speaker 03:
Thank you, Your Honor.

[00:11:28] Speaker 03:
Mr. Lechleiter.

[00:11:35] Speaker 02:
Your Honor, Stan Lechleiter for the appellee.

[00:11:37] Speaker 02:
May it please the Court.

[00:11:39] Speaker 02:
Your Honor, this case presents a straightforward application of Alice and its progeny.

[00:11:45] Speaker 02:
This case is just like the numerous other cases you have affirmed after a district court's rule 12b6 dismissal.

[00:11:53] Speaker 02:
Those cases are cited on page 18 in footnote seven of our brief.

[00:11:58] Speaker 02:
Very little of what you heard from my friend relates to why the district court is wrong.

[00:12:03] Speaker 02:
The district court, in fact, is correct.

[00:12:06] Speaker 02:
The district court correctly found representative claim one of the 786 patent to be representative of all of the asserted claims.

[00:12:15] Speaker 02:
Now, the appellant had the opportunity to object to the magistrate judge's findings below, and in the course of making those objections, did not dispute that claim one of the 786 patent was representative.

[00:12:29] Speaker 02:
You will not find the word representative in the objections to the report and recommendation.

[00:12:35] Speaker 02:
The same failure to refute or otherwise argue against representative claim one also pulls through into appellant's blue brief.

[00:12:45] Speaker 02:
There's no mention in there as to why claim one of the 786 patent is an improper representative claim.

[00:12:52] Speaker 02:
Our view is, therefore, that they have waived their arguments that claim one is not representative, and that this case can be decided by looking at what the district court did with respect to representative claim one of the 786 patent.

[00:13:06] Speaker 03:
But that was in response to your 12B6 motion, is that right?

[00:13:10] Speaker 03:
Yes, your honor.

[00:13:11] Speaker 03:
And not necessarily representative as to other issues that

[00:13:15] Speaker 03:
might have come up had the case proceeded?

[00:13:20] Speaker 02:
In the procedural context of this case, Your Honor, yes, the representative claim was found in the context of our 12b6 motion, yes.

[00:13:29] Speaker 02:
With representative claim one, the district court correctly found that the claim is directed to an abstract idea, as are the remaining independent claims, all of which but one, claim one of the

[00:13:43] Speaker 02:
843 patent, which ITS does not dispute on appeal or raise on appeal.

[00:13:48] Speaker 02:
All of those claims contain the same abstract concept, the idea of an electronic funds transfer without a pre-established link or relationship between accounts.

[00:14:00] Speaker 02:
That abstract idea is carried through all of the claims, independent and dependent, except for the one that I mentioned.

[00:14:07] Speaker 02:
And what we see with that abstract idea are hardware elements

[00:14:11] Speaker 02:
that amount to garnishing the abstract idea with accessories.

[00:14:17] Speaker 02:
The hardware elements and in particular their functions are the exact types of functions and in particular well understood routine and conventional activities that Alice found ineligible.

[00:14:30] Speaker 02:
And in particular they include processing and transmitting data, manipulating data, and otherwise sending and receiving data.

[00:14:39] Speaker 02:
So one thing I want to point out for the court is, regardless of whether the individual hardware components of this system can all be said to be conventional hardware components, in particular, you have to look at how they are claimed.

[00:14:54] Speaker 02:
They are claimed in terms of what they are doing.

[00:14:57] Speaker 02:
And those things that they are doing are the exact types of activities that Alice and this court's decisions following Alice have found to be ineligible as a matter of law.

[00:15:10] Speaker 02:
The specification here does actually point out that many of these elements are known generic elements.

[00:15:17] Speaker 02:
It's a user's telephone.

[00:15:19] Speaker 02:
It's a user's personal computer.

[00:15:21] Speaker 02:
It's transmitting data through the internet or phone lines.

[00:15:25] Speaker 02:
Those are conventional mediums and devices.

[00:15:29] Speaker 03:
But that's going to the merits.

[00:15:31] Speaker 03:
That really has nothing to do with a threshold claim that's been presented, does it?

[00:15:37] Speaker 02:
Well, Your Honor, here we do think that whether or not those elements are conventional would go to step two of the Alice analysis.

[00:15:43] Speaker 02:
But we think the important thing for the court to understand and realize is when you look at how the elements are claimed, they are claimed in terms of what they are doing.

[00:15:53] Speaker 02:
And those activities that the claims say the elements and the specification also says the elements are performing are the exact types of computer activities where you have a computer doing

[00:16:04] Speaker 02:
what a computer does.

[00:16:06] Speaker 02:
And that, under Alice, is patent ineligible.

[00:16:09] Speaker 03:
I don't think you are intending to say that any method claim that claims a sequence of steps is automatically eliminated.

[00:16:19] Speaker 02:
No, Your Honor.

[00:16:19] Speaker 02:
That is not our position.

[00:16:21] Speaker 02:
Here our position is that where you have hardware elements that are performing no more than routine conventional or well-understood activities, as were recited, I believe, at page 2359,

[00:16:34] Speaker 02:
in the ALICE decision, including such things as transferring data in automated modes, which was mentioned, the term automatic or automated was mentioned in ALICE as one of the reasons for ineligibility and a conventional step, as was the term simultaneous.

[00:16:52] Speaker 02:
Those sorts of transactions are computers doing what computers do.

[00:16:57] Speaker 02:
And under ALICE, that is routine and conventional and insufficient to render eligibility.

[00:17:03] Speaker 02:
Now, this court, again, has routinely affirmed decisions after a district court's Rule 12b-6 decision, where the court examined the specification of the patent and the claims and determined that there was an abstract idea and a lack of inventive concept.

[00:17:22] Speaker 04:
We've reversed holdings that some claims were held to be abstract.

[00:17:31] Speaker 04:
How would they differ from this claim?

[00:17:35] Speaker 02:
Any cases in particular, Your Honor?

[00:17:39] Speaker 02:
Well, if we look at this Court's cases that have dealt with ideas where they were found not to be abstract, there are several, one of which would be the Enfish case.

[00:17:56] Speaker 02:
And in that particular case, the claims included a self-referential table for a computer database.

[00:18:04] Speaker 02:
In addition, I would point out that Enfish really was a... Was that software?

[00:18:08] Speaker 02:
Yes, Your Honor.

[00:18:09] Speaker 02:
Enfish was a software case.

[00:18:11] Speaker 02:
And here we would posit that there's really been no argument by ITS that what they're claiming is software.

[00:18:16] Speaker 02:
You heard my friend mention that this is a hardware system.

[00:18:20] Speaker 02:
That has been their position throughout.

[00:18:21] Speaker 02:
If you look at paragraph 11 of their complaint at appendix three, you see that they allege that the invention is hardware.

[00:18:30] Speaker 02:
We don't necessarily disagree with that, but our point is,

[00:18:34] Speaker 02:
There is nothing in the claims to indicate how the hardware elements work together to achieve the claimed result.

[00:18:43] Speaker 02:
The achieving of the claimed result by these claims is aspirational.

[00:18:46] Speaker 02:
There's nothing connecting the hardware elements other than data transmission functions that Alice has found in eligibility.

[00:19:04] Speaker 02:
Your Honor, another case where this court did not find an abstract idea was the MCRO case.

[00:19:10] Speaker 02:
But in that case, there was very specific claims directed to rules with specific characteristics embodied in software for automating a 3D animation process.

[00:19:21] Speaker 02:
These claims have nothing similar to the claims in MCRO.

[00:19:26] Speaker 02:
If you look at the way that the abstract idea that the district court found here is discussed in the specification,

[00:19:33] Speaker 02:
In column two of the 786 patent specification, it is a common specification across all four patents.

[00:19:40] Speaker 02:
It is discussed as the primary object of the invention.

[00:19:44] Speaker 02:
And it states that only after discussing several items of prior art that relate to electronic funds transfers with a pre-established link relationship or connection.

[00:19:59] Speaker 02:
It says, here's the prior art.

[00:20:01] Speaker 02:
They have pre-established link.

[00:20:03] Speaker 02:
connection or relationship, our primary objective is to not have that.

[00:20:07] Speaker 02:
And if one stops and thinks about the breadth of fund transfers without a pre-established relationship, it encompasses a massive variety of fund transfers, especially when you think about all of the individuals who do not have pre-established links, relationships, or connections between their bank accounts.

[00:20:28] Speaker 02:
So here, we believe that that is very much an abstract idea

[00:20:32] Speaker 02:
and that ITS has surrounded that abstract idea in their claims with different hardware elements that perform only activities that under Alice and its progeny are not eligible for patent protection and do not confer an inventive concept.

[00:20:49] Speaker 02:
Now, I suspect that my friend may indicate that claim construction here is necessary.

[00:20:58] Speaker 02:
We do not believe that that is all the case, and I want to point out

[00:21:02] Speaker 02:
that the Fifth Circuit law we've cited has indicated that where it is very clear, as is the case here, that the district court decided this case based solely on materials properly considered within the pleadings, so excluding the declarations attached to ITS's response to our motion to dismiss, where it's very clear from the district court's order that it only considered materials within the pleadings, so that the face of the patents themselves and the complaint

[00:21:31] Speaker 02:
and in this case, a portion of the prosecution history, where the decision on patentability, or rather, ineligibility, can be made only as a matter of law, and where no factual disputes are required to be resolved, then... Fifth Circuit has nothing to say about whether claim construction is required.

[00:21:50] Speaker 02:
That is correct, Your Honor.

[00:21:51] Speaker 02:
That is correct.

[00:21:52] Speaker 04:
That would be a matter of... And that's the point you're arguing against.

[00:21:55] Speaker 02:
And Your Honor, we would say that this Court has pointed out, I believe, in the Bancorp case,

[00:22:00] Speaker 02:
that claim construction is not an involatile prerequisite to determining a patent's eligibility or lack thereof.

[00:22:08] Speaker 02:
And here we would submit that with respect to claim construction, ITS has argued for claim construction repeatedly, but has never presented claim constructions that if adopted would change the outcome in this case.

[00:22:23] Speaker 02:
Nor has it said, even if you did adopt one of our claim constructions, here's how the outcome

[00:22:29] Speaker 02:
should change.

[00:22:29] Speaker 02:
You will not find that in the briefing.

[00:22:33] Speaker 02:
In this particular court, the district court has a procedure for early claim construction requests by a party who is opposing a motion to dismiss such as ours before a Markman hearing has been conducted.

[00:22:47] Speaker 02:
And the Eastern District of Texas' standing order, I believe ITS cites it in its blue brief, but it provides that the parties may submit a letter to the court

[00:22:56] Speaker 02:
containing the terms that they believe are necessary to construe prior to deciding a premarkman 101 motion and why the court should construe them and any intrinsic evidence that the court should rely on in doing so.

[00:23:11] Speaker 02:
ITS had that opportunity and they submitted those terms and the district court found that no claim instruction was necessary even in light of that submission.

[00:23:20] Speaker 02:
I would also point out that ITS didn't provide claim instructions

[00:23:25] Speaker 02:
in its objections to the report and recommendation, even though that was issued on January 30th, 2017, and the parties had exchanged preliminary claim constructions, excuse me, on January 19th, 2017, as is evidence from the district court's docket, which is in the appendix, and I believe that's at 553 in the record.

[00:23:51] Speaker 02:
The point being here is,

[00:23:53] Speaker 02:
If ITS felt strongly that claim construction was necessary, it could have attached them to its objections to the report and recommendation and stated... Attached it to a 12B6 motion?

[00:24:04] Speaker 02:
No, Your Honor, to its objections to the report and recommendation that the magistrate judge issued.

[00:24:10] Speaker 02:
It could have raised its claim constructions.

[00:24:12] Speaker 02:
It had them in hand.

[00:24:13] Speaker 02:
It had served them on us as of January 19, 2017.

[00:24:19] Speaker 02:
It could have tried to work them in to the appellate record.

[00:24:22] Speaker 02:
uh... submitting them with its blue brief but in general it could have tried to tell this court why in light of this thing no no your honor i'm arguing that that they didn't espouse any particular claim constructions yes week week i mean i don't want to use a term of art but i t s is argued for plane construction in the abstract they have not put forth plane constructions that in their view should change the outcome of this case

[00:24:52] Speaker 02:
And we would posit that where they have alleged, variously, that this term should be construed, for instance, automated modes and asynchronous transfer mode, that depends entirely on expert testimony that the district court did not consider because it was attached to a response to the motion to dismiss.

[00:25:12] Speaker 03:
But you're not talking about a summary judgment motion or anything on the merits.

[00:25:17] Speaker 03:
Is that right?

[00:25:19] Speaker 03:
Yes, Your Honor.

[00:25:19] Speaker 03:
The steps of the courthouse.

[00:25:21] Speaker 03:
Yes, Your Honor.

[00:25:21] Speaker 03:
And you're saying that they didn't put their entire case before the court in responding to this threshold motion, and that they had an obligation to do that?

[00:25:35] Speaker 02:
I think in this specific case, they had an obligation to do that for two reasons.

[00:25:38] Speaker 02:
One, they chose to file in the Eastern District of Texas where this standing order had been entered.

[00:25:43] Speaker 02:
This was a pre-TC Heartland decision.

[00:25:45] Speaker 02:
They could have filed this case virtually anywhere in the country.

[00:25:48] Speaker 02:
But we are First Center Bank of Indiana.

[00:25:50] Speaker 02:
They chose the Eastern District of Texas.

[00:25:52] Speaker 02:
And so we're subject to that order.

[00:25:54] Speaker 02:
The second point I would make on that is that if you look at their complaint, paragraphs 11 to 16, they show in advance of filing the complaint, at the time they filed the complaint, that they knew their claims could have or be subject to a one-on-one attack.

[00:26:09] Speaker 02:
They allege in paragraph 11 of it.

[00:26:11] Speaker 01:
What you're saying is if they were going to make an argument

[00:26:14] Speaker 01:
against 101 and validity based on necessity for claim constructions, they had to say what the claim constructions had to be.

[00:26:21] Speaker 02:
Yes, Your Honor.

[00:26:22] Speaker 02:
That's exactly right.

[00:26:24] Speaker 02:
With respect to fact issues that the appellant may raise or allege that the district court failed to consider, the district court was quite clear that it did in fact consider... Excuse me, Your Honor.

[00:26:37] Speaker 02:
I see that my time has expired.

[00:26:38] Speaker 02:
May I finish?

[00:26:39] Speaker 03:
Please finish the thought.

[00:26:40] Speaker 02:
The district court was quite clear that it found no reason to resolve factual issues and that the motion could be decided as a matter of law without claim construction.

[00:26:50] Speaker 02:
Thank you, Your Honor.

[00:26:50] Speaker 02:
We ask that this court affirm.

[00:26:57] Speaker 00:
Thank you, Your Honor.

[00:27:00] Speaker 00:
I'd like to address some of the points made by FIV here, particularly starting with the claim construction issues.

[00:27:07] Speaker 00:
Claim construction would have been useful.

[00:27:09] Speaker 00:
FYB here is basically criticizing ITS for presenting and substantiating its constructions with expert testimony.

[00:27:17] Speaker 01:
Did you argue that a specific claim construction was necessary?

[00:27:20] Speaker 00:
Yes, we did.

[00:27:21] Speaker 00:
We presented claim constructions, the standing order that council references.

[00:27:25] Speaker 00:
There are claim constructions presented there.

[00:27:27] Speaker 01:
But in opposing the 101 motion, did you argue that claim construction, a particular claim construction was necessary?

[00:27:36] Speaker 00:
Yes.

[00:27:36] Speaker 00:
Yes, and we presented constructions for certain terms.

[00:27:39] Speaker 01:
Where did you do that in the objection to the report in order?

[00:27:43] Speaker 00:
I'm sorry, Your Honor.

[00:27:43] Speaker 00:
Are you referring to the response to the 12-6 motion or the objection to the magistrates?

[00:27:48] Speaker 01:
Right now I'm talking about the objections to the magistrates order.

[00:27:50] Speaker 01:
Did you say that a particular claim construction was necessary and that the magistrate had failed to do that?

[00:27:57] Speaker 00:
I recall that we referred to the standing order, where we provided those claim constructions, and our responses to the messenger's message.

[00:28:04] Speaker 01:
Did you argue in seeking review of the report in order by the magistrate that the magistrate had earned by failing to make a particular claim construction?

[00:28:15] Speaker 00:
Yes, I believe those were provided.

[00:28:17] Speaker 00:
Where?

[00:28:18] Speaker 00:
Well, in the objections themselves, we... Show me where you made that argument.

[00:29:26] Speaker 00:
Your Honor, and one example here is at Appendix 536, where we are talking about adapters, where we talk about a specialized aspect of the invention.

[00:29:34] Speaker 00:
It's something, I'm sorry, claimed and described in the patents as transforming the data received into a data language required for processing.

[00:29:41] Speaker 00:
And we refer to the Lamont Declaration, where that is specifically discussed as one would understand it from the viewpoint of the Scott Artisan at the time of the invention.

[00:29:51] Speaker 01:
Where do you argue that

[00:29:53] Speaker 01:
made a straight heard by not making a particular claim, not addressing a particular claim construction issue.

[00:30:00] Speaker 00:
Well, we have argued, I submit that we've argued that throughout that.

[00:30:04] Speaker 00:
We make comparisons between individual claims.

[00:30:07] Speaker 01:
Don't say throughout, where.

[00:30:09] Speaker 01:
If you made the argument to show me where you argued that he made a mistake by not making a claim construction.

[00:30:22] Speaker 00:
Another place, Your Honor, is at Appendix 542, where we see the report and recommendation also ignored the term virtual ATM.

[00:30:30] Speaker 00:
FIB submitted that term.

[00:30:32] Speaker 00:
Virtual ATM is the same as ATM, which effectively reads the term virtual out of the claim altogether.

[00:30:46] Speaker 01:
OK.

[00:30:50] Speaker 01:
All right, go ahead.

[00:30:53] Speaker 00:
So the point is there is I think there were some right claim construction issues necessary to be construed.

[00:31:01] Speaker 01:
What claim construction issue now would change the result here?

[00:31:06] Speaker 00:
I think at this point, Your Honor, we've adequately briefed all of the points so that the threshold determination under Section 101 can be determined.

[00:31:12] Speaker 01:
What claim construction, the resolution of what claim construction issue would change the result here?

[00:31:19] Speaker 00:
The construction of the terms adapters, the construction of the terms

[00:31:24] Speaker 00:
IVR?

[00:31:25] Speaker 00:
How will that change the result?

[00:31:27] Speaker 00:
Because it takes those beyond mere generic aspects, and then when you view those in combination, as an ordered combination... So you want a construction that those were different than generic adapters?

[00:31:37] Speaker 00:
That is correct, Your Honor.

[00:31:42] Speaker 00:
And this is important because otherwise, when you just call this a fund transfer, as FIB has, you overgeneralize the terms.

[00:31:50] Speaker 00:
And when they do this, they say, well, the primary objective of the invention is X. And when you say that, they characterize that as the entire claim.

[00:31:59] Speaker 00:
But we must look at the claim language and construe it properly.

[00:32:02] Speaker 00:
And this is why we've submitted expert declarations to do so, as opposed to mere attorney argument, which is not evidence.

[00:32:09] Speaker 00:
And when you compare these claims to the types of claims that this court, the Supreme Court, have looked at, which we did in pages 41 to 45 of our brief, we compare them against claims like Alice.

[00:32:20] Speaker 00:
almost entirely functional language in, say, claim one of Alice, for example, and had two aspects that were potentially structured.

[00:32:27] Speaker 00:
They were both means type limitations.

[00:32:30] Speaker 00:
That's about as broad as you can get.

[00:32:32] Speaker 00:
We've submitted terms that are far more specific than that, that have particularized meanings in this industry, and that should be construed in such a manner as to preserve the eligibility of these claims.

[00:32:41] Speaker 00:
Additionally, we think that we've objected to the claims in, to the reports of recommendation, we objected to all the claims

[00:32:49] Speaker 00:
such that we listed all the claims, we compared claims against one another, and so there's no waiver of any issues here that we see.

[00:32:58] Speaker 00:
We also objected to the determinations under Section 101.

[00:33:02] Speaker 00:
FYB relies on the tennis case to support its proposition in this regard.

[00:33:07] Speaker 00:
In the tennis case, there was a question of indefiniteness under Section 112.

[00:33:11] Speaker 00:
That issue was not allowed to be raised on appeal because the word indefinite never even appeared, that the statute wasn't mentioned,

[00:33:18] Speaker 00:
the petitioners never even raised the word indefinite.

[00:33:21] Speaker 00:
Here, we've plainly objected to the issues, and we've presented those issues to this court as well.

[00:33:28] Speaker 00:
In conclusion, I believe that we've shown that there is plenty of structure here to declare that these claims are not abstract, especially at the threshold phase here, and an end phase of whether this is plausible under a 12b6 motion.

[00:33:42] Speaker 00:
The function that is recited here is adequate, similar to the claims like an end fish, where you're directed to

[00:33:48] Speaker 00:
computer-specific problem such that that should elevate these to something that is eligible and these are otherwise not preemptive then these should be declared eligible under section 101.

[00:33:57] Speaker 00:
We think the district court erred in that regard.

[00:33:59] Speaker 00:
Thank you Your Honors.

[00:34:01] Speaker 03:
Thank you both.

[00:34:02] Speaker 03:
The case is taken under submission.