[00:00:00] Speaker 04:
The next argument is 17-2139, Maxson v. Pune.

[00:00:47] Speaker 04:
Good morning, Your Honors.

[00:00:48] Speaker 04:
Matt Warson for Maxon.

[00:00:50] Speaker 04:
We request that this court reverse the district court's holding of the patents in suit ineligible on a motion to dismiss.

[00:01:01] Speaker 04:
Heirs of substance and procedure would support such a reversal.

[00:01:08] Speaker 04:
On the substance, the inventive concept claimed here is decentralized provisioning of services

[00:01:17] Speaker 04:
to a plurality of devices.

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That is, equipping a device with the means by which a user may dictate what service will be enjoyed on what device at what time.

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The reason that these claims do... Yes?

[00:01:38] Speaker 00:
I just want to clarify one thing.

[00:01:39] Speaker 00:
It's my understanding that you have agreed that that concept you just mentioned is abstract.

[00:01:45] Speaker 04:
It is abstract, Your Honor.

[00:01:47] Speaker 04:
It is, however, an inventive concept because Maxon does not claim that abstract concept of decentralized provisioning of services, but rather the limitations of each claim taken as an ordered combination teaches one of ordinary skill in the art as of the priority date, 2003, precisely how

[00:02:15] Speaker 04:
to achieve that novel and inventive result.

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The district court below erroneously ignored procedural protections that are afforded any plaintiff on a motion to dismiss and any patentee throughout each stage of the litigation.

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The proper 101 analysis would be rooted in the claim language read in light of the specification

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from the perspective of one of ordinary skill in the art as of that priority date, 2003.

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What the district court did here is quite different.

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The district court instead analyzed a part of the specification which defined various components and held based on the district court's knowledge of computing networks that all that was claimed here

[00:03:13] Speaker 04:
was generic computing components.

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That analysis is contrary to Rule 12, and that analysis is contrary to Section 282, which gives a presumption of validity to these patent claims at every stage of litigation, unless overcome by clear and convincing evidence.

[00:03:37] Speaker 04:
If I could direct the Court's attention to Claim 8,

[00:03:41] Speaker 04:
of the 160 patent, page 36 of the appendix, I can walk through that claim and show the court how these claims, in fact, do teach the inventive concept.

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The claim is directed to this abstract idea of a device sharing a plurality of services.

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Its decentralized service delivery

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to the device.

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The inventive concept, however, is that this device is equipped with the ability to dictate commands back to the service provider.

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And so how is that achieved?

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At the first element, we have the computer-readable medium.

[00:04:29] Speaker 05:
Now, the district courts... Yes?

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Isn't the notion of being able to dictate commands and accessibility and the like also abstract?

[00:04:41] Speaker 04:
Yes, Your Honor.

[00:04:42] Speaker 05:
However, these claims... So that can't be what's not routine and conventional.

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Something else has to be routine and conventional, doesn't it?

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You can't say what's not routine and conventional about this claim is the abstract idea itself.

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If that were the case, we would have found the patent in Ariosa eligible.

[00:05:04] Speaker 05:
I know it's a natural law, but I think the same thing would apply.

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They were the first

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people to discover that particular natural law, and it wasn't routine and conventional at all, but we still found it ineligible because it didn't do anything more than claim that abstract or natural law.

[00:05:26] Speaker 05:
What here is something more than your decentralized system and your notions of dictating accessibility and the like, which are all abstract.

[00:05:36] Speaker 04:
Yes.

[00:05:37] Speaker 04:
And that is true that they're abstract on that general level.

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But then the claims teach one of ordinary skill in the art.

[00:05:44] Speaker 04:
Well, how is this achieved?

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You have this abstract idea of dictating commands to the service provider, setting up a decentralized system.

[00:05:55] Speaker 04:
That is in and of itself abstract.

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However, how is telling somebody how to perform an abstract idea eligible?

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Because it had never been done before.

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And then, how thin would you distinguish ariosa?

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It told people how to perform an abstract idea that had never been done before, an incredibly revolutionary idea that's kind of changed prenatal testing.

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But nevertheless, it was ineligible.

[00:06:23] Speaker 04:
Your Honor, forgive me.

[00:06:24] Speaker 04:
What was the procedural posture, and how was that found ineligible?

[00:06:30] Speaker 05:
You know, you have to know our case.

[00:06:32] Speaker 04:
OK, yeah.

[00:06:33] Speaker 04:
Okay, well, here's my reply, is that Maxon goes beyond this abstract concept of command and control and shows one of ordinary skill precisely how to do it in a new way.

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And by the PTO, through an adversarial proceeding of prosecution, issuing this patent, we have the presumption that this intrinsic record amounts to

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an inventive concept.

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And so getting back to the claim, the first element would be this computer readable medium, which holds three things, defining the device, defining the personal network, and also a data, a credential that allows the device to communicate commands to the service provider.

[00:07:28] Speaker 04:
All of this language in the claim

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is then read in light of the specification, which details to one of ordinary skill in the art, precisely how that is done.

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This device also has logic and a processor to take commands from the user of the device and to prepare what's called an inbound signaling word, which communicates all of that information that I just went over, that is the device, the personal network,

[00:08:01] Speaker 04:
this ability to communicate with the service provider, but also within it is the command.

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The command, do I want this service?

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Do I not want this service?

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And then finally, a transceiver, which has the ability and the device equipped with the logic.

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The transceiver has... What's not routine and conventional about any of those things?

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You've talked about a computer

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a logic processor, sending signals and commands and a transceiver.

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Those are all routine and conventional pieces of equipment implementing your abstract idea.

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They're routine and conventional in the sense if you describe them as generically as your honor just did.

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However, if you read the claims, it defines specifically a specialized processor.

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a processor that writes an inbound signaling word.

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And we do have the presumption of validity on our side.

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And the patent office, by issuing this patent, after a rigorous press... Can you point out to me where you're... So you think you're claiming a... You've invented a new processor.

[00:09:18] Speaker 05:
Rather than just programming a conventional processor to do a new abstract idea.

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we claim a processor that used in a new way achieves a new result.

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And so that would be using it in this new way to achieve decentralized provisioning of services to a plurality of devices.

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And so we rely on the intrinsic record.

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That processor, just to take that as a limitation, that processor is taught

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in the specification, it's the claim language that teaches that processor is supported by that language in the specification and that has been through the Patent Office.

[00:10:08] Speaker 04:
The Patent Office issued this patent claim, claim A to the 160 patent.

[00:10:13] Speaker 04:
Now what do we have below?

[00:10:15] Speaker 04:
What did Judge Finerman do to hold that these claims are ineligible?

[00:10:22] Speaker 04:
Judge Finerman

[00:10:23] Speaker 04:
analyzed the definitions.

[00:10:26] Speaker 04:
So for example, a processor, although the patent doesn't define the generic processor.

[00:10:34] Speaker 04:
And so the district court assumed that it was a generic processor.

[00:10:40] Speaker 04:
So we have at the Rule 12 stage, the district court.

[00:10:44] Speaker 05:
How is it not a generic processor?

[00:10:46] Speaker 05:
What in the specification?

[00:10:48] Speaker 05:
Because even what you're saying today, you keep talking about a processor programmed to do something, but you haven't said anything or pointed at anything that says this is a special kind of processor.

[00:11:00] Speaker 05:
It's just programmed to do a certain thing.

[00:11:02] Speaker 04:
Your Honor, it is a special... Are those two different things?

[00:11:07] Speaker 04:
No, this is a processor.

[00:11:09] Speaker 05:
So if I take a generic computer

[00:11:11] Speaker 05:
You agree that that's a generic computer?

[00:11:13] Speaker 05:
Sure.

[00:11:14] Speaker 05:
If I program it, it's no longer a generic computer?

[00:11:18] Speaker 04:
If you program it, our argument goes according to how the specification tells you to program it, and I can point the court page 32

[00:11:29] Speaker 04:
of the appendix.

[00:11:30] Speaker 05:
Just answer my question.

[00:11:31] Speaker 05:
My question is, you start with a generic processor.

[00:11:34] Speaker 04:
Yes.

[00:11:34] Speaker 05:
What you start with.

[00:11:35] Speaker 05:
Yes.

[00:11:37] Speaker 05:
You haven't invented any kind of new processor.

[00:11:40] Speaker 05:
This doesn't require some kind of equipment that's not off the shelf.

[00:11:44] Speaker 05:
That's correct.

[00:11:45] Speaker 05:
You could go, if Best Buy still existed, you could go to Best Buy and buy a computer processor.

[00:11:50] Speaker 05:
And then you program it according to what you say your patent does.

[00:11:54] Speaker 04:
Yes.

[00:11:55] Speaker 05:
In your view, that creates a new processor?

[00:11:58] Speaker 04:
In this case, it does.

[00:12:00] Speaker 01:
Is that consistent with our case law in 112.6 paragraph that talks about specialized computers when you're talking about corresponding structuring the specification, and if there's a specific algorithm disclosed, it becomes a specialized computer versus an engineering computer?

[00:12:19] Speaker 01:
Is that what you're relying on for this argument?

[00:12:22] Speaker 04:
Yes, I think in a sense.

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And just to respond directly to the question,

[00:12:28] Speaker 04:
with the written description, we would rely, for example, on column six of the 160 pad.

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And this is page 32 of the appendix.

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And beginning at line 31, it describes the processor preparing this inbound signaling word.

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And so it is not, and you have cases that don't pass step two of the analysis, because

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For example, what is claimed is a processor acting like a generic processor, but that is not what's claimed here.

[00:13:06] Speaker 04:
What is specifically claimed is a processor that prepares this inbound signaling word, which identifies the device within a personal network and gives a command to the service provider.

[00:13:29] Speaker 02:
May it please the court?

[00:13:31] Speaker 02:
Jumping right to the point that was last addressed, the inbound signaling word, that's something that it's novel language.

[00:13:42] Speaker 02:
We don't see it anywhere.

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And it seems to be intrinsic to what this new argument of making this specialized computer, generic computer, somehow specialized.

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But that even falls apart when you look at column six at line 40 to 41 where, quote,

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the specific format of the ISW, inbound signaling word, 310, is not integral to this invention.

[00:14:06] Speaker 02:
There is nothing here other than an abstract concept.

[00:14:10] Speaker 02:
This is a unique case because the party asserting the patent has actually asserted that it's an abstract concept, not just tried to defend it, but asserted it is abstract, and then accused

[00:14:28] Speaker 02:
present company, of committing the cardinal sin of importing limitations from the specification by relying upon what is defined in column two as, quote, the following description includes definitions of selected terms used throughout the disclosure.

[00:14:47] Speaker 02:
This starts out as a broad abstract concept and then catapults into extraordinary preemptive

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areas that we haven't seen in a lot of the recent cases.

[00:15:00] Speaker 02:
An address defined on column two of the 160, the appendix page 30, the address can be not limited to one or more network accessible addresses, device identifiers, telephone numbers, IP addresses, URL, FTP locations, email addresses, names, a distribution list, including one or more addresses, even down to a postal address.

[00:15:25] Speaker 02:
the computer readable media.

[00:15:28] Speaker 02:
Starts on column two, line 55.

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I won't bore you with the reading of it.

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But the best one of all of these is the logic.

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Because if there was something that could actually turn a generic computer into a specialized computer, it would be the logic.

[00:15:44] Speaker 02:
And those are the cases like the IGT, where you have like description of an algorithm.

[00:15:50] Speaker 02:
Here, the logic

[00:15:52] Speaker 02:
As used herein, and this is on page 31 of the appendix, column 3, starting on line 5, quote logic, close quote, as used herein, includes but is not limited to hardware, firmware, software, and or a combination of each of these to perform functions or an action or to cause a function or action from another component.

[00:16:16] Speaker 02:
That is, by definition, the most abstract of concepts

[00:16:21] Speaker 02:
that I've seen come before this Court in any decision, where even the logic is described in terms of performing something that is a function to be performed.

[00:16:32] Speaker 02:
The only thing that ends up having to be, you know, a question is, did the district court somehow not interpret things in the light most favorable?

[00:16:44] Speaker 02:
Well, the only thing we have in that record for that purpose is we have the Court's decision.

[00:16:50] Speaker 02:
sets out the proper, starting on Appendix 1, and bridging Appendix 1 and Appendix 2, sets forth the proper standard under the law, concluding that the facts are set forth as favorably to max on as those materials allow.

[00:17:08] Speaker 02:
The court then went through and performed both steps of the analysis.

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The first one was conceded.

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With regard to representative claims,

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The court found that the claims any argument had been waived because no argument had been made otherwise in response to the plaintiff's arguments, the claimant's argument.

[00:17:25] Speaker 02:
And then the district court went through on the second step and searched for anything in this description which could say these were anything other than conventional.

[00:17:36] Speaker 02:
The only conclusion that the district court could logically reach when these long, exhaustive recitations

[00:17:45] Speaker 02:
of conventional things were recited was that they were, in fact, conventional.

[00:17:50] Speaker 02:
The only part that the district court did not cite to, and I just wish to point to the Federal Circuit for your benefit, is that on column 6, on page 32 of the 160, on column 6, starting on line 45, although not defined as, quote, a user interface,

[00:18:09] Speaker 02:
It states that the user, a user, can initiate a transmission in any variety of ways, including but not limited to using an input device such as a keyboard, the keypad or keyboard, speaking to a microphone, pushing a button, using a pointing device, et cetera.

[00:18:25] Speaker 02:
Everything in here is generic, and at best, all these claims do is act upon a generic concept, an abstract concept, to result in an abstract claim.

[00:18:40] Speaker 02:
If there are any questions.

[00:18:41] Speaker 02:
Thank you.

[00:18:42] Speaker 02:
Thank you.

[00:18:51] Speaker 04:
I'd like to pick up on what my friend just said in characterizing the district court's decision, said that the only logical place that the court could end up would be that this is simply conventional computing components.

[00:19:09] Speaker 04:
It's not about logic.

[00:19:10] Speaker 04:
It's about evidence.

[00:19:12] Speaker 04:
And what the district court should have come up with was intrinsic evidence to establish that these are generic computing components used in a generic manner.

[00:19:27] Speaker 04:
Other cases do this, the intellectual ventures case, the content extraction case.

[00:19:33] Speaker 04:
We are not saying that no patents can be found ineligible on a motion to dismiss.

[00:19:39] Speaker 04:
However, there has to be intrinsic evidence to support an order holding patents ineligible by clear and convincing evidence.

[00:19:50] Speaker 04:
It has to be clear and convincing that these are just generic computing components.

[00:19:57] Speaker 04:
It cannot be founded on the logic of a district court judge perceiving these elements in 2017.

[00:20:06] Speaker 04:
I would also emphasize that the district court, and now my friend on the other side, refuses to give any attention to the claim language or to the specification, and specifically the specification with reference to the figures, the meat of the specification, where the invention, where the inventive concept is taught.

[00:20:35] Speaker 04:
We ask for a reversal.

[00:20:37] Speaker 04:
If there are no more questions, I'll yield my time.

[00:20:40] Speaker 04:
Thank you.

[00:20:41] Speaker 04:
We thank both sides.

[00:20:41] Speaker 04:
The case is submitted.

[00:20:42] Speaker 04:
That concludes our proceeding for this morning.

[00:20:45] Speaker 03:
All rise.

[00:20:48] Speaker 03:
The Honorable Court is adjourned tomorrow morning.

[00:20:50] Speaker 03:
It's an o'clock a.m.