[00:00:01] Speaker 03:
Last case for argument is 17-2625, T.S.

[00:00:05] Speaker 03:
Patent vs. Yeah.

[00:01:05] Speaker 01:
Good morning.

[00:01:06] Speaker 01:
I'd like to start with the issue of overgeneralization by the district court.

[00:01:13] Speaker 01:
Under cases like Infish and Sales Vision X, a claim must be analyzed with all its essential limitations for ALICE step one.

[00:01:27] Speaker 01:
The district court did not do that.

[00:01:30] Speaker 01:
The district court reduced a get-go, reduced all claims,

[00:01:34] Speaker 01:
to very high-level concepts and found those claims abstract ideas because those high-level contracts were abstract.

[00:01:46] Speaker 01:
So this is like circular logic.

[00:01:49] Speaker 01:
Basically, you first extract a claim into abstract ideas, then turn around and find a claim to be abstract idea because

[00:02:02] Speaker 01:
you just extracted an actual idea from it.

[00:02:07] Speaker 02:
I have been very outspoken and critical of this idea of overly aggressive reductionist analysis of claims and

[00:02:24] Speaker 02:
stating what the claim is directed to in very broad general abstract ideas.

[00:02:30] Speaker 02:
It's sort of an abstraction of an abstraction.

[00:02:36] Speaker 02:
But I have to say in this case the district court had made a very thorough analysis that went beyond simply the broad statement that she started with for each patent as to what the claims were directed to and then proceeded to look

[00:02:54] Speaker 02:
specifically at the essential elements in those claims.

[00:02:59] Speaker 02:
And it doesn't seem to me that for any of these patents, the analysis done by the district court sort of fell into that overly reductionist problem.

[00:03:16] Speaker 01:
Well, let's use an example.

[00:03:19] Speaker 01:
547.

[00:03:22] Speaker 01:
use claim one as an example, 547.

[00:03:24] Speaker 01:
So the issue, Your Honor, is whether this claim is directed to improvement in computer functionality.

[00:03:34] Speaker 01:
If it is directed to improvement to computer functionality, then we have a patent eligible claim under Infish and a lot of other cases.

[00:03:44] Speaker 01:
So to us, there's two components in this test, this improvement to

[00:03:51] Speaker 01:
computer functionality.

[00:03:53] Speaker 01:
First, the claim has to be, in general, directed to some kind of computer functionality, which the claims are directed to computer functionality.

[00:04:03] Speaker 01:
And second, the claims have to recite the actual improvement to computer functionality.

[00:04:10] Speaker 01:
Otherwise, you'd be like a capital one.

[00:04:12] Speaker 01:
You said you have solved the problem, but you did not recite the solution.

[00:04:16] Speaker 01:
And in this case, our claims meet both standard.

[00:04:21] Speaker 01:
starting with 547 on it.

[00:04:23] Speaker 01:
547, the general technology of 547 is about online access of servers directory, servers folder structure.

[00:04:39] Speaker 01:
And this folder structure tend to be bulky, big.

[00:04:42] Speaker 01:
And before the pattern, the prior cannot do that.

[00:04:48] Speaker 01:
And the solution, this particular solution,

[00:04:51] Speaker 01:
and our inventor came out to use a digital surrogate.

[00:04:55] Speaker 01:
This digital surrogate is MLAL, the multi-layered item list.

[00:05:03] Speaker 01:
This thing is small, can be resided in a RAM, and also can be transmitted over the network without overburdening the network, and also in a reduced form.

[00:05:16] Speaker 01:
So this is a particular solution, make this process much faster,

[00:05:21] Speaker 01:
and easier, and which achieve this look and a feel of a single virtual machine.

[00:05:27] Speaker 01:
So that's an improvement to this functionality of remote access or folder structure.

[00:05:34] Speaker 01:
And the claim recites those improvements.

[00:05:37] Speaker 01:
It's not just conclusive language and not just functional language.

[00:05:43] Speaker 02:
But the district court looked at the claims.

[00:05:46] Speaker 02:
The district court said,

[00:05:47] Speaker 02:
Well, OK, the 5-4 patent is directed to organizing and viewing data on a network in a reducible hierarchy.

[00:05:56] Speaker 02:
And then went on to talk about the claim recites three major steps.

[00:06:03] Speaker 02:
And she talks about each of those three major steps.

[00:06:08] Speaker 02:
Seems to me that's exactly what she was supposed to do.

[00:06:14] Speaker 02:
under the state of affairs that we find ourselves in Alice Mayo.

[00:06:20] Speaker 01:
Yeah, that's sort of a lip service.

[00:06:24] Speaker 01:
They just perfunctorily just go over the elements.

[00:06:28] Speaker 01:
But if you actually analyze the claim with all the essential elements intact, that conclusion is just you cannot reach a conclusion.

[00:06:39] Speaker 01:
The high-level concept is whether this claim is directed at you.

[00:06:44] Speaker 01:
The claims recite an algorithm, Your Honor.

[00:06:47] Speaker 01:
The algorithm started with, at each start of a user session, you create an MLIO.

[00:06:54] Speaker 01:
This MLIO is a logical representation of the folder structure.

[00:06:59] Speaker 01:
Then you send the MLIO over the internet to the user, and the user can edit and view the MLIO as if it's editing and viewing the folder directory.

[00:07:09] Speaker 01:
If there's any edit made to the MLIO,

[00:07:13] Speaker 01:
the computer will update the folder structure accordingly.

[00:07:18] Speaker 01:
And at the end of this process, when the user exits the session, the MLEO is deleted.

[00:07:25] Speaker 01:
So this per user MLEO is very crucial here.

[00:07:29] Speaker 01:
And not only it enables the fast and easy access to the folder structure, it also enables the concurrent access by multiple users of the same

[00:07:41] Speaker 01:
a folder structure, so achieve that single virtual machine.

[00:07:45] Speaker 01:
It's like everybody is using a single virtual machine.

[00:07:48] Speaker 01:
So that's an important improvement.

[00:07:50] Speaker 01:
And this is a motion to dismiss, and it's supposed to view the evidence most favorable to us, to the non-movement.

[00:07:59] Speaker 01:
But if you read her honors, the district court opinion, she went through kind of a profantery, oh, this is conventional, that's conventional, so I don't need to comment this, I don't comment that.

[00:08:11] Speaker 01:
But there's no evidence supporting those conclusions.

[00:08:15] Speaker 01:
The evidence shows, the only evidence is what is pleaded in the patent.

[00:08:23] Speaker 01:
And also, we have the motion for judicial notice, and we think we should have a chance to add the scene, have the judge allow us to amend the pleading.

[00:08:34] Speaker 02:
What language in claim one of the 547 patent

[00:08:39] Speaker 02:
did Judge Poe overlook?

[00:08:42] Speaker 01:
OK, so there's several.

[00:08:45] Speaker 02:
She talked about the three major steps, and she made reference by column and line number of the specific claim language she was addressing.

[00:08:57] Speaker 01:
Oh, it's not like she didn't mention those claim elements.

[00:09:02] Speaker 01:
She drew the wrong conclusion after she mentioned.

[00:09:04] Speaker 01:
She said those elements, first of all, she said this is a preview base

[00:09:09] Speaker 01:
She said it's a preview to organizing and viewing data on a network in a reducible hierarchy.

[00:09:20] Speaker 01:
OK, so first of all, this is not about organizing and viewing data.

[00:09:27] Speaker 01:
This is about to allow a remote user to access the folder structure of the network, the folder structure of the server.

[00:09:38] Speaker 01:
It's a very specific goal with its directive.

[00:09:41] Speaker 01:
It's not about this abstract of organizing and viewing data on a network.

[00:09:47] Speaker 01:
And also the reducible hierarchy.

[00:09:50] Speaker 01:
Reducible hierarchy is an abstract term, Your Honor.

[00:09:53] Speaker 01:
But here, that term is referring to the term in the reduced form.

[00:10:02] Speaker 01:
In the reduced form here means when you create this amylal,

[00:10:08] Speaker 01:
You want to be in a reduced form so it occupies the least amount of footprint when you transmit over the internet.

[00:10:17] Speaker 01:
And every time you click a node, it only transmits a small amount of additional data.

[00:10:24] Speaker 01:
That's the reason this thing can work.

[00:10:27] Speaker 01:
can work, can make it faster and easier.

[00:10:29] Speaker 01:
So that's a crucial element.

[00:10:31] Speaker 01:
But the jet makes a crucial element into a hierarchical, a hierarchy, reduced hierarchy, become an abstract concept.

[00:10:39] Speaker 01:
So that's why her conclusion was wrong.

[00:10:42] Speaker 01:
She went through the thing, but she basically just viewed the thing as abstract ideas.

[00:10:49] Speaker 01:
That's where we have problem.

[00:10:55] Speaker 01:
I'm going to go through the other claims too.

[00:10:58] Speaker 03:
You referenced this motion that you have a motion pending before us to supplement the record.

[00:11:07] Speaker 03:
Did you move to try to supplement the record below?

[00:11:10] Speaker 03:
I mean, you're asking us to consider materials that were not considered below, which is pretty aggressive.

[00:11:16] Speaker 03:
So the question is, did you move to have her put these in the record and she declined?

[00:11:22] Speaker 01:
We never had a chance, Your Honor.

[00:11:24] Speaker 01:
So here's what happened below.

[00:11:27] Speaker 01:
On the first motion dismissed, she granted the motion, and she, at the same day, she issued the judgment.

[00:11:35] Speaker 01:
And by the local rule, we cannot do anything for it.

[00:11:38] Speaker 01:
That's the end of the case.

[00:11:39] Speaker 01:
We cannot find a motion for reconsideration.

[00:11:44] Speaker 01:
And of course, we cannot amend the completing.

[00:11:46] Speaker 01:
And normally, Ninth Circuit Law is

[00:11:51] Speaker 01:
A motion to dismiss can be granted without a leave to man is really correct.

[00:12:02] Speaker 01:
It's only correct in extraordinary cases.

[00:12:05] Speaker 01:
So in that district, nobody in the first motion dismissed in the opposition say, hey, if you grant this motion, it should give you a leave to man, because that's the norm.

[00:12:17] Speaker 01:
Unless it is a pure legal issue, which it is not.

[00:12:21] Speaker 02:
But in response to the motion to dismiss, you have an opportunity at that point, did you not, to seek leave to amend?

[00:12:30] Speaker 01:
That's what I'm trying to say.

[00:12:31] Speaker 01:
In Ninth Circuit, we don't normally do that because Ninth Circuit lawyers leave to mention all that is given, only in extraordinary cases.

[00:12:41] Speaker 03:
But did you move to amend after the motion to dismiss was filed?

[00:12:46] Speaker 01:
No, because we did not think the motion has enough merit.

[00:12:51] Speaker 01:
So we did not move.

[00:12:53] Speaker 01:
We just oppose it.

[00:12:55] Speaker 01:
We just oppose it.

[00:12:56] Speaker 01:
And the judge did not say, hey, I should not give you a motion, leave it to a man, because you did not ask.

[00:13:05] Speaker 01:
The district judge never said that.

[00:13:07] Speaker 01:
The district judge said, leave it to a man is futile in this case.

[00:13:12] Speaker 01:
So that's the...

[00:13:15] Speaker 01:
So that's the Ninth Circuit law.

[00:13:17] Speaker 01:
You cannot adjust on the first motion to dismiss and grant it without leave to man, unless there's some extraordinary cases.

[00:13:24] Speaker 01:
It's a pure legal issue.

[00:13:25] Speaker 01:
And here it's not.

[00:13:26] Speaker 01:
It's a lot of a factual issue here.

[00:13:29] Speaker 01:
And I move on to the 473 pattern.

[00:13:35] Speaker 01:
Here, the claims are directed at the general computer functionality

[00:13:42] Speaker 01:
online multitasking.

[00:13:45] Speaker 01:
The prior had that, but very poorly and often result in hanging and blocking.

[00:13:52] Speaker 01:
And our inventors solved that problem.

[00:13:55] Speaker 01:
And here, how we solve problem is use a combination of this thing called user level task list and with a straight lock.

[00:14:08] Speaker 01:
So this prevented hanging

[00:14:10] Speaker 01:
And the locking happened in prior, which make this multi-tasking unworkable.

[00:14:18] Speaker 01:
So this is a specific solution, and it's specifically resided in the claim.

[00:14:23] Speaker 01:
And so this fits the standard of improvement to computer functionality, and it should be eligible.

[00:14:36] Speaker 01:
And for the 442,

[00:14:41] Speaker 01:
The general functionality here is directed as the online file sharing.

[00:14:48] Speaker 01:
And the prior, believe it or not, in 2002, which is the priority date of the patent, is the available method of the sharing is sent by email, which if it's a big file, it takes a long time and overburning the network.

[00:15:03] Speaker 01:
And our client solution was not moving this file at all in the network.

[00:15:09] Speaker 01:
The file stays in the network.

[00:15:12] Speaker 01:
And you just send this file access information from A to B instead of sending the file.

[00:15:21] Speaker 01:
And the user B can access the file directly by using the file access information, which is called a metadata in this case because the suggestion by the examiner.

[00:15:34] Speaker 01:
And what it is is the location of the file, the identity of the file.

[00:15:38] Speaker 01:
So to allow user B to directly access the file as if the file sits in his own computer.

[00:15:45] Speaker 01:
That's the virtual machine concept.

[00:15:49] Speaker 01:
So that's the solution that greatly makes this much faster, this process of posting, transferring a file, sharing a file with another online user.

[00:16:03] Speaker 01:
So that's why.

[00:16:05] Speaker 01:
the claim recites this improvement.

[00:16:08] Speaker 01:
So that's the improvement to technology to computer functionality.

[00:16:13] Speaker 01:
That should be pattern eligible.

[00:16:15] Speaker 01:
And for the 8-on-1 pattern, the general functionality the claims are directed to are the same.

[00:16:24] Speaker 01:
It's an online file sharing, Your Honor.

[00:16:27] Speaker 01:
But here, it's more specific than 442 is that the solution

[00:16:35] Speaker 01:
The general functionality is about posting a file in a common area online so other users can access the file.

[00:16:47] Speaker 01:
And the traditional way, the conventional way is, of course, saving the file in the common area so other people can use it when you're done and deleting it.

[00:16:57] Speaker 01:
But our client solution is similar to 449, so we don't move the file over the seat in my

[00:17:06] Speaker 01:
private storage area, but when I want to share this posted on the common area, I post the file location information, the access information, onto the common area so people in the common area can directly access the file without having to transfer the file, the content of the file itself.

[00:17:28] Speaker 01:
And to do this, of course, I had to unlock, remove a privacy log,

[00:17:33] Speaker 01:
because they're sitting in my private area, so I need to remove the privacy lock at the same time, so other people in the common area can access.

[00:17:42] Speaker 01:
So this makes it more dynamic, the posting process.

[00:17:46] Speaker 03:
I know there's a lot of material covered in your briefs, but your time is, you've exceeded your time.

[00:17:51] Speaker 03:
So if you have one other statement on something you haven't covered yet, I'll allow you to do that.

[00:17:56] Speaker 03:
But if not, why don't we hear from the other side?

[00:17:57] Speaker 03:
Okay, thank you.

[00:17:58] Speaker 03:
Thank you.

[00:17:59] Speaker 03:
Why don't we hear from the other side?

[00:18:08] Speaker 00:
May I proceed?

[00:18:11] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:18:13] Speaker 00:
The district court decision here should be affirmed because the district court properly applied the Alice two-step test in determining that these claims are not that ineligible.

[00:18:23] Speaker 00:
We heard primarily from step one arguments that the district court supposedly oversimplified the claims here.

[00:18:33] Speaker 00:
But for each of the claims and each of the patents, we believe that the district court properly determined that each of the representative claims is directed to an abstract idea.

[00:18:43] Speaker 00:
TS patents claims that the district court overgeneralized the asserted claims, but as you noted, or as you note,

[00:18:50] Speaker 00:
They did not contest the fact that the district court properly identified each of the claims as being representative.

[00:18:56] Speaker 00:
They have not taken issue with that.

[00:18:58] Speaker 03:
Well, let's skip over to that and go to step two of aiming to these claims.

[00:19:04] Speaker 03:
Because while I agree with Judge Lynn, she seems to have done a very thorough opinion on each of these claims in some detail.

[00:19:12] Speaker 03:
As far as discerning whether or not this is a conventional use or something more, why isn't there enough in this record to at least get through a 12v6?

[00:19:25] Speaker 00:
And I think the reason it's simple is that if you look at the specifications themselves, the specifications confirm that the claims recite conventional computer components that are used in their conventional manner.

[00:19:37] Speaker 00:
If you look at the elements recited, you see things like servers.

[00:19:40] Speaker 00:
and processors, user interfaces and program code, and then the types of functions that they're supposedly performing are displaying information, selecting, storing, deleting and accessing information.

[00:19:51] Speaker 00:
And the cases we've set in our brief show that each of these components in each of these functions has been found time and time again by this court to be routine and commonplace.

[00:20:01] Speaker 00:
There's nothing if you look at the claims, and again we have to focus on what's in the claims, if you look at the claims there's nothing in those claims

[00:20:07] Speaker 00:
when you look at them, that shows that the components here are used in any manner other than as the way they're intended to be, including off-the-shelf components.

[00:20:16] Speaker 00:
And we cited the electric power case to show that that's exactly what this court has previously held.

[00:20:21] Speaker 00:
The only other argument you hear from them is that if you take a step back and don't focus on each one of the individual components, but you look at the ordered combination as a whole, that that somehow maybe saved these claims.

[00:20:32] Speaker 00:
But again, if you look at the case law on this, and we've cited in our briefs the electric power case and the intellectual ventures, which is eerie indemnification case, that nothing, again, in these claims shows that anything other than the components being used in an off-the-shelf manner as they're routinely understood and expected to be used.

[00:20:50] Speaker 00:
And because of that, even if you consider them as an ordered combination, it does not take them out of the realm of step two of Alice.

[00:20:56] Speaker 00:
So it doesn't matter if you look at the combination of components

[00:20:59] Speaker 00:
As an ordered combination, or if you look at them individually, you come back to the same unmistakable conclusion that these are off-the-shelf components used in their conventional and traditional manner.

[00:21:10] Speaker 00:
I could respond to some of the specific arguments, if you'd like, that they raised in their briefs.

[00:21:14] Speaker 00:
I haven't heard them raise an oral argument here, anything really about step two.

[00:21:17] Speaker 00:
The argument was really about step one that we heard.

[00:21:19] Speaker 00:
I'm happy to go deeper into the step two analysis if you'd like, Your Honor, but I think I've addressed at a high level, I think the reasons why none of the claims here get outside the focus of the step two analysis.

[00:21:30] Speaker 03:
I want to address the brief exchange I had with your friend about the motion to amend and whether he had the opportunity and his concern about not having had the opportunity again to amend because the district court said it would have been futile.

[00:21:45] Speaker 00:
Sure.

[00:21:45] Speaker 00:
And I think that there's a couple of answers to this.

[00:21:48] Speaker 00:
First of all, as you pointed out, they did have the chance to amend.

[00:21:51] Speaker 00:
In response to a motion to dismiss, you really got two choices at the district court.

[00:21:55] Speaker 00:
You can fight on the complaint as you've pled it and simply oppose the motion.

[00:22:00] Speaker 00:
which is the route that they took, or you have a matter of right to file an amended complaint in response to a motion to dismiss.

[00:22:07] Speaker 00:
They didn't go that route.

[00:22:08] Speaker 00:
They thought their arguments were good enough.

[00:22:10] Speaker 00:
They thought their claims were good enough.

[00:22:11] Speaker 00:
So they went the route of we're just going to oppose.

[00:22:14] Speaker 00:
So they didn't try to bring any of these additional arguments that they're now trying to bring into the case now.

[00:22:18] Speaker 00:
So it's sort of like they're trying to have their cake and eat it too.

[00:22:21] Speaker 00:
They took a first shot on the record as they had created it in their first complaint.

[00:22:25] Speaker 00:
And now since they lost, they're trying to have another shot at it.

[00:22:28] Speaker 00:
And I think you see that if you look at their briefs,

[00:22:30] Speaker 03:
The only explanation that they gave in their... They typically wouldn't just dismiss without prejudice?

[00:22:35] Speaker 00:
No, not in my experience.

[00:22:37] Speaker 00:
This is a fairly common practice.

[00:22:38] Speaker 00:
I've actually had cases before this court before from New York and from other districts where it's commonplace is that it's understood that if you are going to oppose a motion to dismiss, you take your best shot.

[00:22:50] Speaker 00:
You can either file a mini complaint and then have maybe a new motion filed, or if you're just going to oppose, that's your chance to do it.

[00:22:58] Speaker 00:
So I think, no, it's not uncommon.

[00:23:00] Speaker 00:
But second of all, even if you look further, so if we look past the issue that they didn't raise this issue below, and we look at what they're actually suggesting saves these claims, they've really mentioned three things.

[00:23:10] Speaker 00:
They've mentioned new patents, they've mentioned other specifications, and they've mentioned portions of a prosecution history.

[00:23:17] Speaker 00:
Now let's look at those because the district court determined as you heard that they would not grant leave to amend because you couldn't hear the defects that were present in these claims.

[00:23:29] Speaker 00:
Adding new patents to the case, that certainly doesn't cure any defects with the claims in the current patents.

[00:23:34] Speaker 00:
So I don't understand the argument there.

[00:23:36] Speaker 00:
I think that that one we can just put aside.

[00:23:38] Speaker 00:
If they wanted to add new claims or new patents, I mean, that would do nothing to the issues with these claims.

[00:23:44] Speaker 00:
Second issue is specifications.

[00:23:47] Speaker 00:
They say we should be able to cite to other specifications.

[00:23:50] Speaker 00:
They give one example in the briefs, if you look.

[00:23:53] Speaker 00:
And the one example is that they say the lock is not abstract.

[00:23:57] Speaker 00:
but it's a real specific implementation.

[00:24:01] Speaker 00:
Even if that's true, that's not the reason why the court below found the claims to be patent ineligible.

[00:24:07] Speaker 00:
The district court found the claims require only a conventional lock.

[00:24:10] Speaker 00:
That was the key.

[00:24:11] Speaker 00:
So whether or not the lock is real and specific doesn't matter because the specifications themselves admit that the locks are conventional.

[00:24:19] Speaker 00:
And you can see that that's cited in our briefs.

[00:24:21] Speaker 00:
It's in the record.

[00:24:22] Speaker 00:
The specification itself says the locks here can be conventional.

[00:24:26] Speaker 00:
So again, citation to this one part of a specification wouldn't save these claims.

[00:24:31] Speaker 00:
The third and final thing that they've cited is a portion of a prosecution history.

[00:24:35] Speaker 00:
And again, they only gave one example in the briefs, and that was a statement about accessing a multi-layer folder.

[00:24:43] Speaker 00:
And they cite to one page from the prosecution history in the briefs, and that's JN 088.

[00:24:49] Speaker 00:
Now, if you look at that page of the prosecution history,

[00:24:52] Speaker 00:
The primary focus there is talking about what a prior art reference shows.

[00:24:57] Speaker 00:
It's got nothing that I can discern that would support an argument here that would take these claims out of the step two part of the Alice Mayo test.

[00:25:05] Speaker 00:
So again, long answer to your question, but a couple of things.

[00:25:07] Speaker 00:
First of all, they did not seek leave to amend before.

[00:25:10] Speaker 00:
They did not avail themselves of that possibility.

[00:25:12] Speaker 00:
They didn't do anything post entry of the motion to dismiss the granting of that, to do anything to alter the record.

[00:25:18] Speaker 00:
And then here,

[00:25:19] Speaker 00:
trying to put these new arguments in, even if you let them supplement the record and make these new arguments about new patents, specifications, and prosecution history, none of that would get them over the hurdle here.

[00:25:30] Speaker 00:
That's why I think the district court was right in determining that a motion to amend here would be futile.

[00:25:35] Speaker 00:
And that's why it was proper not to grant leave.

[00:25:39] Speaker 00:
Thank you.

[00:25:47] Speaker ?:
Thank you, Your Honors.

[00:25:47] Speaker ?:
So.

[00:25:48] Speaker 01:
Excuse me, about step two.

[00:25:52] Speaker 01:
Yes, the components used here, many of them are conventional components, but this is like any pattern.

[00:26:00] Speaker 01:
And you invent a new circuit, and you have conventional capacitors, transistors, resistors, but doesn't mean the combination of them are not novel, are not unconventional, are not pattern-worthy.

[00:26:16] Speaker 01:
Here, there's no evidence on the record.

[00:26:19] Speaker 01:
So this is a motion to dismiss.

[00:26:21] Speaker 01:
We are supposed to give the benefit of the doubt in this process.

[00:26:28] Speaker 01:
There's no evidence in the record to support the conclusion that user 547, as an example,

[00:26:39] Speaker 01:
547 invented this new way of using MLAL as a digital surrogate for the easy and fast viewing of the directory folder structure.

[00:26:54] Speaker 01:
There's no record saying that's conventional.

[00:26:58] Speaker 01:
There's no record.

[00:27:00] Speaker 01:
And for the 473 patent,

[00:27:07] Speaker 01:
And there's no record to show that somebody has solved the issue of blocking and hanging in multitasking by using a combination of user task list, user level task list, and a thread lock.

[00:27:26] Speaker 01:
So those combinations are not shown to be conventional.

[00:27:31] Speaker 01:
And those are our inventors' contribution to this field.

[00:27:35] Speaker 01:
And for the 442 pattern,

[00:27:37] Speaker 01:
and the A91 pattern, there's no record to show that the prior art had this, our invention is instead of transmitting a file from A to B, we're not moving the file, we're just transmitting or storing the file access information to allow B directly to view the file through the network.

[00:28:03] Speaker 01:
So there's no record to support that convention

[00:28:07] Speaker 01:
So this is a combination of those things.

[00:28:11] Speaker 01:
And at this stage of this litigation, there's no ground to say they're conventional.

[00:28:17] Speaker 01:
And in response to the motion for judicial notice, it's nine circuit law.

[00:28:28] Speaker 01:
Motion to dismiss can be granted without leave to amend only in extraordinary cases.

[00:28:37] Speaker 01:
Even the judge here did not say, you did not ask for leave.

[00:28:40] Speaker 01:
So that's why I don't even address that because that's just not the law under Ninth Circuit.

[00:28:46] Speaker 01:
Ninth Circuit, for the first round, you have to give the litigant, the plaintiff, at least one leave to amend because otherwise this has to be extraordinary cases.

[00:28:58] Speaker 01:
This is not an extraordinary case.

[00:28:59] Speaker 01:
It's not some case on this side.

[00:29:01] Speaker 01:
It is a pure legal issue.

[00:29:03] Speaker 01:
You had to change your claim.

[00:29:05] Speaker 01:
and to salvage the thing.

[00:29:08] Speaker 01:
But here is a lot of factory issues.

[00:29:10] Speaker 01:
What is conventional?

[00:29:11] Speaker 01:
What is non-conventional?

[00:29:13] Speaker 01:
And the judge, lots of time, is just drawing conclusions without actually supporting the work based on 2020 hindsight.

[00:29:20] Speaker 01:
I mean, we're in 2017, 2018, and we are talking about a state of the art in 2002, Your Honor.

[00:29:27] Speaker 01:
So that's... And...

[00:29:34] Speaker 01:
Regarding whether we have the chance and after the judge issue the order or they have a chance to to salvage the issues.

[00:29:43] Speaker 01:
Okay, we never had the chance.

[00:29:46] Speaker 01:
Like I said to your honor, the judge had this one to strike all at the same time.

[00:29:51] Speaker 01:
So in our district, if the judgment of the issue, you cannot file a motion to for reconsideration cannot find anything because that's the end of the case.

[00:30:01] Speaker 01:
The only

[00:30:02] Speaker 01:
Your only recourse is to appeal.

[00:30:06] Speaker 01:
So I'm not out of time.

[00:30:09] Speaker 01:
I'm sorry.

[00:30:10] Speaker 01:
Yes, you are.

[00:30:11] Speaker 01:
Yes, I'm sorry.

[00:30:11] Speaker 01:
Yeah.

[00:30:12] Speaker 01:
OK.

[00:30:12] Speaker 03:
Thank you.

[00:30:13] Speaker 03:
We thank both sides.

[00:30:14] Speaker 03:
The case is submitted.

[00:30:15] Speaker 03:
That concludes our procedure.

[00:30:18] Speaker 02:
All rise.

[00:30:21] Speaker 00:
The Honorable Court is adjourned from day to day.