[00:00:07] Speaker 03:
Okay, our third case is number 18-1332, Mantis Communications, LLC versus Edible Arrangements, LLC.

[00:00:18] Speaker 03:
Ms.

[00:00:18] Speaker 03:
Klemerowski.

[00:00:20] Speaker 00:
May it please the Court?

[00:00:21] Speaker 00:
Good afternoon, Your Honors.

[00:00:23] Speaker 00:
The question before this Court today is primarily one of civil procedure.

[00:00:27] Speaker 00:
On February 8th, 2018, this Court... Ms.

[00:00:30] Speaker 04:
Klemerowski, you asked us to adopt a construction

[00:00:34] Speaker 04:
quote, a server system that can simultaneously support multiple mobile service providers, systems, and mobile device technology, correct?

[00:00:45] Speaker 00:
Correct, yes.

[00:00:47] Speaker 04:
Isn't that the language of the preferred embodiment?

[00:00:56] Speaker 04:
Call them 10 lines, 2 to 4, if that helps you.

[00:01:02] Speaker 00:
In the 788 pattern?

[00:01:04] Speaker 04:
So are you asking us to construe message application server in terms of a preferred embodiment?

[00:01:27] Speaker 04:
Do you realize that's contrary to our precedent?

[00:01:31] Speaker 00:
Yes, Your Honor.

[00:01:33] Speaker 04:
So your answer is yes, Your Honor.

[00:01:35] Speaker 04:
You are asking.

[00:01:37] Speaker 00:
Well, yes, I realize it's contrary to your precedent.

[00:01:41] Speaker 04:
You realize this, okay.

[00:01:53] Speaker 00:
Your Honor, I would like to circle back to the reason why Mantis is here today.

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On February 8th, 2018, this court in Berkheimer versus HP

[00:02:02] Speaker 00:
with respect to Alice Step 2 said, the question of whether a claim element or combination of elements is well understood, routine, and conventional to a skilled artisan is a genuine issue of material fact, making summary judgment inappropriate with respect to the claims.

[00:02:18] Speaker 03:
Well, that's an overstatement of what the case said.

[00:02:21] Speaker 03:
It doesn't say that summary judgment is never appropriate.

[00:02:25] Speaker 03:
It says that sometimes it's not.

[00:02:28] Speaker 00:
Correct, Your Honor.

[00:02:28] Speaker 00:
Yes, sometimes.

[00:02:29] Speaker 04:
But there can be factual question.

[00:02:31] Speaker 01:
not that they're automatically are factual correct but we believe in this case there are factual questions that need to be resolved do you think so even if they decline to narrow the claim construction where you suggest that is if we say

[00:02:54] Speaker 01:
We have to construe this claim to be as general as its language suggests, consistent with some language in respect that says something, and I'm paraphrasing here, any application server will do.

[00:03:08] Speaker 01:
Well, at that point, is there any legally material fact about conventionality or non-abstractness?

[00:03:20] Speaker 00:
The point is that Mantis was never given the ability to have claim construction conducted.

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The lower court made a ruling on claim construction without actually conducting claim construction.

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So Mantis would like this court to remand this case so it has the ability to demonstrate to the lower court that its claims are valid.

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Additionally, the lower court dismissed the factual allegations in Mantis's complaint.

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And it's well-established, a well-established standard.

[00:04:11] Speaker 04:
Let me ask you this about factual allegations.

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You assert factual allegations that the, quote, trigger system, close quote, of claim one solves a problem unique to mobile technology.

[00:04:25] Speaker 04:
That's in the blue break of 1550.

[00:04:27] Speaker 04:
Yes.

[00:04:27] Speaker 00:
Yes, Your Honor.

[00:04:29] Speaker 04:
All your citations supporting those factual allegations present attorney argument at the trial level.

[00:04:38] Speaker 04:
I'm looking at JA 160 and 334 and 335.

[00:04:46] Speaker 04:
Where is there a factual allegation as opposed to attorney argument?

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You look at those pages in the record that you cited,

[00:04:58] Speaker 04:
in the blue braids of 15 and 16.

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And then turn to the record, which you've cited, and tell me how those are factual as opposed to a turning argument.

[00:05:21] Speaker 00:
Could you repeat your question, Your Honor?

[00:05:25] Speaker 04:
Repeat the question?

[00:05:26] Speaker ?:
Yes.

[00:05:29] Speaker 04:
In the blue brief at 15 and 16, you say that the trigger system of CLA-1 solves a problem unique to mobile technology.

[00:05:43] Speaker 04:
And then you cite alleged factual allegations.

[00:05:47] Speaker 04:
And you cite this to the record.

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But when I look at the record of JA-160,

[00:05:56] Speaker 04:
334 and 335.

[00:05:58] Speaker 04:
Those are attorney argument.

[00:06:01] Speaker 04:
I looked at it and thought, oh, is this an affidavit?

[00:06:03] Speaker 04:
No.

[00:06:04] Speaker 04:
It's a first amended complaint.

[00:06:07] Speaker 04:
Right.

[00:06:09] Speaker 04:
How is that anything other than attorney argument?

[00:06:15] Speaker 04:
There's no factual statement.

[00:06:17] Speaker 00:
I'm sorry, Your Honor.

[00:06:19] Speaker 00:
I'm having trouble finding where you're referring to your first amendment.

[00:06:23] Speaker 04:
Do you have the record in front of you?

[00:06:25] Speaker 00:
I have the appendix on appeal.

[00:06:33] Speaker 04:
Go to 334 and 335.

[00:06:39] Speaker 04:
Who is Mr. Hatch?

[00:06:41] Speaker 00:
Mr. Hatch is the lead attorney for Mantis.

[00:06:46] Speaker 04:
So you're citing to Mr. Hatch, are you not?

[00:06:49] Speaker 00:
Yes, Your Honor.

[00:06:51] Speaker 04:
Isn't that sort of prima facie attorney argument?

[00:06:58] Speaker 00:
Yes, Your Honor.

[00:07:04] Speaker 01:
Okay.

[00:07:04] Speaker 01:
Do you get anything more out of the other side, the 160, which is the complaint, which at least formally is an allegation of fact?

[00:07:13] Speaker 01:
Which is, that's it, I think.

[00:07:15] Speaker 01:
The other side there is the appendix 160, which

[00:07:20] Speaker 01:
And this is not on the summary judgment motion, right?

[00:07:23] Speaker 01:
We're on 12b6.

[00:07:25] Speaker 01:
We have to take the facts as pled as true.

[00:07:30] Speaker 01:
What are the facts on that page that you think serve you well here on this point?

[00:07:42] Speaker 00:
We walk through what the message application server does.

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The message application server is able to take a bunch of numbers across a bunch of different wireless carriers.

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Each carrier has a different service address, different protocols for sending and receiving messages.

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The message application server

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is able to take an inbound message from a user on any one of those wireless carriers and is able to then kick out a marketing message or whatever kind of message a business would want, no matter what carrier the user is on.

[00:08:20] Speaker 00:
Back to the priority date of these patents in 2002,

[00:08:23] Speaker 00:
At that time, there wasn't even interoperability between the wireless carriers.

[00:08:27] Speaker 00:
So if I was on Verizon, I wouldn't be able to text someone that was on T-Mobile.

[00:08:32] Speaker 00:
So the message application server at that time solved a problem unique to mobile technology that had not yet been solved.

[00:08:41] Speaker 01:
We have a line of cases now.

[00:08:49] Speaker 01:
identify as one way a claim can be abstract, that it is essentially functional.

[00:09:00] Speaker 01:
That is, it says, we need a device that performs the following function without further specificity.

[00:09:08] Speaker 01:
Why is that not essentially what's going on here, even whereas I think you have some other patent not asserted here that says,

[00:09:18] Speaker 01:
Here in Mormon, with greater particularity, is a design of a server that does this.

[00:09:26] Speaker 01:
But if we construe this claim, not only would it distract the trigger system, but the

[00:09:33] Speaker 01:
application server to be as broad as I think the spec declares it to be, it says 106 is any server that will do this, then why would this not fall into the line of cases, Affinity Labs and others now that say if you are at too high a level of generality and just say a thing that performs this function, you're still in abstract territory.

[00:10:04] Speaker 00:
Well, the spec says that the message application server is designed to process messages.

[00:10:14] Speaker 00:
It's not just a generic piece of software.

[00:10:16] Speaker 00:
It's designed to send and receive messages across a bunch of different wireless carriers.

[00:10:25] Speaker 04:
Let's look at step two.

[00:10:31] Speaker 04:
You claim unspecified generic computer

[00:10:34] Speaker 04:
components.

[00:10:38] Speaker 04:
Claim one appears to claim the abstract classic steps of direct marketing at a very high, as Judge Toronto said, a very high level of generality.

[00:10:50] Speaker 04:
That is, acquiring individual contact information, sending promotional material, and allowing the redemption of that material.

[00:11:02] Speaker 04:
What are the meaningful limitations in claim one such that it contains an inventive concept?

[00:11:10] Speaker 00:
Well, we believe that the message application server demonstrates the inventive concept.

[00:11:16] Speaker 00:
That the ability of the message application server to interface with these different carriers, that is the inventive concept of the trigger system.

[00:11:25] Speaker 04:
How does it do that?

[00:11:27] Speaker 00:
Well, it's able to take, so carriers might send messages out with a five digit short code, a six digit short code, a seven or 10 digit number.

[00:11:37] Speaker 00:
The message application server is able to take whatever number is associated with a specific carrier and then it's able to configure that address to then communicate directly one-to-one with the user on a carrier.

[00:11:50] Speaker 04:
How is that innovative?

[00:11:52] Speaker 00:
It's innovative because at the time these patents were, the priority date of these patents

[00:11:57] Speaker 00:
There wasn't any interoperability between the carriers.

[00:12:00] Speaker 00:
This simply wasn't done.

[00:12:02] Speaker 00:
You couldn't text someone that was on a different wireless carrier than yourself.

[00:12:06] Speaker 03:
But you admit that that's not, under our jurisprudence, a part of the claim, because that's only an embodiment.

[00:12:14] Speaker 00:
Yes, but...

[00:12:16] Speaker 00:
If Mantis was allowed to have an actual claim construction hearing and to import limitations from the specification to construe these elements of the claim, then it believes that it could demonstrate to the lower court that its claims are patent eligible.

[00:12:29] Speaker 00:
But the issue here is that Mantis was never given that opportunity.

[00:12:33] Speaker 00:
The lower court simply said, well, we don't like your claims, so we're granting the appellee's motion to dismiss.

[00:12:40] Speaker 00:
And all Mantis wants is the ability to have

[00:12:43] Speaker 00:
a claim construction hearing, the ability to show the lower court, and it thinks it can show the lower court, that its claims are patent eligible.

[00:12:54] Speaker 03:
Okay, do you want to save the rest of your time?

[00:13:01] Speaker 03:
Yes.

[00:13:01] Speaker 03:
Mr. Conrad.

[00:13:11] Speaker 04:
May please the court.

[00:13:13] Speaker 04:
Well, given the disputed construction of message application server, wasn't the District Court compelled to engage in meaningful claim construction?

[00:13:22] Speaker 02:
It was and it did, Your Honor.

[00:13:25] Speaker 04:
Is Mandus's offered construction of message application server plausible?

[00:13:31] Speaker 02:
It is not plausible.

[00:13:32] Speaker 02:
And the fact that you jump right on to the point is that the District Court did engage in claim construction, even if it

[00:13:39] Speaker 02:
was at an earlier stage than ordinarily there are administered in cases.

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That's up to the judge to decide that there's enough on the record to do that.

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And here he did.

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Judge Payne did construe the term and decide that the proposed claim construction, which was a proposal from the plaintiff, was not supported by the intrinsic record.

[00:14:01] Speaker 02:
There is an attempt to read a particular embodiment from the specification into the claims.

[00:14:09] Speaker 02:
And the reason that it's just a particular embodiment is because this wasn't even in the focus of the patent.

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If you read the specification, it becomes clear that the message application server was not even suggested to be an invention in this patent.

[00:14:35] Speaker 02:
On appendix page 32, column 9, starting around line 45,

[00:14:39] Speaker 02:
The specification says that multiple other embodiments of the message application server are possible and known to those skilled in the art.

[00:14:48] Speaker 02:
So in the intrinsic record, when the applicants talked about how the details of the mobile provider network was not even important or not even relevant, that's because they weren't even trying to claim this as an invention.

[00:15:02] Speaker 02:
And so the thought that the court should narrow the claims based on this one term

[00:15:08] Speaker 02:
And then this would actually turn the issue of eligibility into the plaintiff's favor.

[00:15:14] Speaker 02:
It's just not plausible from the record.

[00:15:16] Speaker 02:
What the applicants claim to invent here is a trigger system.

[00:15:21] Speaker 02:
That was the focus of the patent.

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That was the title of the patent.

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The problem that was discussed that they were faced with was, how do we get a mobile number from a user?

[00:15:32] Speaker 02:
We don't like the technical ways that it's being done.

[00:15:35] Speaker 02:
How do we get a mobile number from the user?

[00:15:38] Speaker 02:
let's come up with a trigger system.

[00:15:40] Speaker 02:
The problem with the patent, even if you want to set aside the message application server and just look at the trigger system, the trigger server is going to use any means possible to accomplish that fact.

[00:15:55] Speaker 02:
That's expressly stated in the patent that the trigger system is any system capable of capturing a unique identifier capable of being transformed into the user mobile device address, and it says that

[00:16:08] Speaker 02:
that you need to identify could simply be the user's mobile address to begin with.

[00:16:13] Speaker 02:
So the patent itself, whether you want to accept the procedural arguments that the plaintiff is presenting on appeal, or if you want to look at the patent the way the patentees wanted to tell the public what their invention was.

[00:16:27] Speaker 02:
Either way, you can accept one of two different line of cases.

[00:16:30] Speaker 02:
As Judge Soranto, you mentioned, you can accept the case law where if you look at the message application server, it's just a functional component.

[00:16:38] Speaker 02:
and doesn't actually claim any specific way of doing anything.

[00:16:42] Speaker 02:
You look at the other line of cases and you look at the trigger system and the other components and the patentees say they could be anything that accomplish this goal.

[00:16:52] Speaker 02:
And the breadth that is admitted to in the patent here is so broad that it's hard to find a patent that is this similar in its expressed nature of claiming breadth.

[00:17:02] Speaker 02:
You have to go back to O'Reilly v. Morris where it expressly says, I claim any way of doing something.

[00:17:07] Speaker 02:
It's rare to find something so expressly stated in the patents like this.

[00:17:12] Speaker 02:
So the district court did what it was supposed to do.

[00:17:15] Speaker 02:
It looked at these patents.

[00:17:17] Speaker 02:
There was a claim construction argument that was raised by the plaintiff.

[00:17:20] Speaker 02:
It resolved the claim construction argument properly.

[00:17:23] Speaker 02:
Then it addressed the ALIS step one and step two and said that the claims here were claiming so broad, so broad a means that it effectively covered all means of accomplishing what the patentees wanted to do

[00:17:37] Speaker 02:
And therefore, it was abstract.

[00:17:39] Speaker 02:
And then when it went to step two, it said, there's nothing in this patent that would save it.

[00:17:43] Speaker 02:
There's no specific inventive means that they came up with to solve the problem.

[00:17:51] Speaker 02:
And therefore, the district court correctly granted the motion to dismiss, and we politely ask this court to affirm.

[00:17:58] Speaker 02:
I'm happy to answer questions if you have any.

[00:18:01] Speaker 02:
I don't think we have any.

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

[00:18:03] Speaker 02:
Thank you.

[00:18:06] Speaker 03:
Thank you, Mr. Conrad.

[00:18:15] Speaker 00:
I would just like to point out that in the August 11th hearing on the motion to dismiss, counsel for the appellees actually admitted that Mantis's claim construction was plausible.

[00:18:25] Speaker 00:
So for them to say and to deny that Mantis's claim construction is plausible goes against expressly what they stated.

[00:18:33] Speaker 04:
To what are you citing?

[00:18:40] Speaker 00:
It's the trial transcript.

[00:19:21] Speaker 00:
Sorry, Your Honor, I can't find the site.

[00:19:25] Speaker 04:
That doesn't help.

[00:19:28] Speaker 00:
But it was admitted in the trial transcript.

[00:19:31] Speaker 04:
We should take your word for it?

[00:19:33] Speaker 00:
I'm sorry?

[00:19:34] Speaker 04:
We should take your word for it?

[00:19:36] Speaker 00:
Yes.

[00:19:37] Speaker 04:
Okay.

[00:19:51] Speaker 00:
Well, with just a minute left, I want to reiterate that Mantis did not get a fair hearing on claim construction from the lower court.

[00:20:01] Speaker 00:
Despite what the appellees have said, the lower court made a ruling saying that there was no basis for imparting any limitations from the spec to the claims.

[00:20:14] Speaker 00:
That in and of itself is a claim construction ruling.

[00:20:17] Speaker 00:
That issue, whether to impart limitations from the spec, is the very purpose of claim construction.

[00:20:23] Speaker 00:
And there was no formal claim construction conducted here.

[00:20:26] Speaker 00:
There was no evidence put forth by the defendant.

[00:20:28] Speaker 00:
They didn't meet the clear and convincing standard under Accenture to show that their construction was the only plausible one that made the claims patent-ineligible.

[00:20:40] Speaker 00:
My time is up, Your Honors.

[00:20:41] Speaker 03:
Okay.

[00:20:42] Speaker 03:
Thank you, Ms.

[00:20:42] Speaker 03:
Klemarski.

[00:20:43] Speaker 03:
I thank both counsels.

[00:20:44] Speaker 03:
The case is submitted.