[00:00:00] Speaker 05:
This is general.

[00:00:55] Speaker 05:
We're ready, Mr. Shore, whenever you are.

[00:00:58] Speaker 03:
I'm sorry?

[00:00:59] Speaker 05:
We're ready whenever you are.

[00:01:05] Speaker 03:
May it please the Court, I'm here on behalf of the University of Florida Research Foundation to raise two arguments on appeal.

[00:01:13] Speaker 03:
The first argument is that the sovereign status of the state of Florida precludes a private party from coming in and basically destroying sovereign property rights

[00:01:24] Speaker 03:
for the benefit of a private party.

[00:01:26] Speaker 05:
Even when it's your client that's bringing the suit, right?

[00:01:30] Speaker 03:
Yes, Your Honor.

[00:01:31] Speaker 03:
And this is no different than the College Savings Bank context, where in College Savings Bank, my client is free to infringe anyone else's patent at will, and they can't be sued for infringing someone's patent.

[00:01:42] Speaker 03:
That's black letter law.

[00:01:44] Speaker 03:
It's established.

[00:01:45] Speaker 04:
It's absolutely... Can you rely on New Mexico University of New Mexico being night?

[00:01:54] Speaker 04:
And you assert that a State that voluntarily asserts its rights as a plaintiff in Federal court waives its 11th immunity, but only as to compulsory counterclaims.

[00:02:05] Speaker 03:
Absolutely.

[00:02:05] Speaker 03:
In 101, Your Honor.

[00:02:06] Speaker 04:
I don't read Knight to limit waiver to only compulsory counterclaims.

[00:02:12] Speaker 03:
Well, then you also need to refer to Tejik v. the University of Texas.

[00:02:17] Speaker 04:
Well, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait.

[00:02:21] Speaker 04:
We're talking about Knight.

[00:02:24] Speaker 04:
The majority expressly stated the issue before that court at that time was whether all, versus at least with respect to certain compulsory counterclaims, should be deemed waived.

[00:02:38] Speaker 04:
And the majority held the latter was true.

[00:02:41] Speaker 04:
Do you agree that night can't be limited in such a manner as you initially expressed in your briefing?

[00:02:48] Speaker 04:
Tell me why or why not.

[00:02:49] Speaker 04:
And stick to night.

[00:02:51] Speaker 03:
Well, we can't stick to Knight because Knight is an earlier case, and after Knight came other cases that made it quite clear that only compulsory counterclaims are available to assert against the sovereign.

[00:03:02] Speaker 03:
Just like we don't stop at Marbury versus Madison, we can't just stop.

[00:03:05] Speaker 03:
No, we don't stop at Marbury versus Madison, so you're not relying on Knight anymore.

[00:03:09] Speaker 03:
Oh, I am relying upon Knight that set the path.

[00:03:13] Speaker 03:
Path said only counterclaims, OK?

[00:03:18] Speaker 03:
Hydro Quebec others have said only compulsory counterclaims.

[00:03:22] Speaker 03:
101 is not a counterclaim at all, much less a compulsory counterclaim.

[00:03:27] Speaker 03:
So the first step you'd have to ask is, is 101 a counterclaim?

[00:03:30] Speaker 03:
It is not.

[00:03:32] Speaker 03:
And then even if you found it to be a counterclaim, which it's not, you'd have to ask, is it a compulsory counterclaim?

[00:03:37] Speaker 02:
Well, when you say it's not a counterclaim, I am assuming this is a variation of your argument that it's not

[00:03:47] Speaker 02:
an argument related to validity?

[00:03:49] Speaker 02:
Is that right?

[00:03:50] Speaker 03:
No, it's not.

[00:03:51] Speaker 03:
It's an argument related to eligibility, and eligibility and validity are not the same thing.

[00:03:55] Speaker 02:
Okay, but we have multiple cases in which we have held otherwise already.

[00:04:03] Speaker 02:
So how is it that you think this panel can, for example, reach a different result on this than, say, dealer track versus Huber?

[00:04:13] Speaker 02:
in which it said the conditions of patentability include section 101.

[00:04:17] Speaker 02:
That was a panel of this court that proceeded awesome.

[00:04:19] Speaker 02:
We're bound by it.

[00:04:20] Speaker 02:
So even if you could possibly prevail, can't you only prevail at our in-bank court?

[00:04:26] Speaker 02:
Because isn't this panel bound by prior decisions which have held that 101 is a validity defense?

[00:04:35] Speaker 03:
No.

[00:04:36] Speaker 03:
And the reason why is those did not involve sovereigns.

[00:04:39] Speaker 03:
There is no sovereign case.

[00:04:41] Speaker 03:
And the sovereigns stand in a very unique position.

[00:04:43] Speaker 03:
And believe me, I've been dealing with sovereigns for my entire legal career on both sides.

[00:04:48] Speaker 03:
And sovereigns stand in a very, very unique position as to other litigants.

[00:04:52] Speaker 02:
Your argument is predicated on the idea that Section 101 is not a defense under 282, that it is not a argument that the patent is invalid.

[00:05:08] Speaker 03:
Different questions.

[00:05:09] Speaker 03:
Those are different questions.

[00:05:10] Speaker 03:
What I'm saying is absolutely it's not a compulsory counterclaim.

[00:05:13] Speaker 03:
It's not a counterclaim at all, much less a compulsory counterclaim.

[00:05:16] Speaker 05:
And then you're saying so they're not even entitled to have defenses because the only thing they can have are compulsory counterclaims.

[00:05:24] Speaker 05:
But then you're saying even if they were allowed to have defenses, they couldn't have it under 101.

[00:05:28] Speaker 05:
Is that it?

[00:05:29] Speaker 03:
No.

[00:05:29] Speaker 03:
What I'm saying is there are two buckets.

[00:05:31] Speaker 03:
There's a compulsory counterclaim bucket, which is a claim for affirmative relief or action.

[00:05:36] Speaker 03:
That's what a claim is.

[00:05:37] Speaker 03:
It has to be compulsory based on the exact same transaction or occurrence as the original claim.

[00:05:42] Speaker 03:
That's what a compulsory counterclaim is.

[00:05:43] Speaker 03:
This is not a compulsory counterclaim.

[00:05:45] Speaker 03:
And then you have the bucket of defenses.

[00:05:48] Speaker 03:
Defenses are not the same.

[00:05:50] Speaker 02:
When you bring a suit, haven't you waived sovereign immunity as to defenses, as a legal proposition?

[00:05:57] Speaker 02:
Can't we start there?

[00:05:59] Speaker 02:
Defenses are allowed to be brought regardless of counterclaims.

[00:06:02] Speaker 03:
Pure defenses.

[00:06:03] Speaker 02:
Affirmative defenses.

[00:06:04] Speaker 03:
Pure affirmative defenses.

[00:06:06] Speaker 03:
Correct.

[00:06:06] Speaker 03:
This is not a pure affirmative defense because it is not simply saying, I'm not liable.

[00:06:11] Speaker 03:
It's saying that your patent is invalid.

[00:06:13] Speaker 03:
Wait, wait, wait.

[00:06:13] Speaker 04:
Isn't it saying, I'm not liable because your patent's invalid?

[00:06:16] Speaker 04:
Right, right.

[00:06:17] Speaker 03:
Well, no.

[00:06:17] Speaker 03:
It's actually, I'm not liable because your patent should have never issued because it wasn't eligible for patentability.

[00:06:22] Speaker 03:
Right.

[00:06:22] Speaker 03:
And that is stepping... What's the difference?

[00:06:23] Speaker 03:
That's a huge difference because that's stepping into a contract

[00:06:27] Speaker 03:
between the United States of America and the state of Florida.

[00:06:30] Speaker 04:
And that is saying on behalf of a private party... What if they said it was invalid because it was obtained by fraud?

[00:06:35] Speaker 04:
Same thing?

[00:06:37] Speaker 03:
Well, that case isn't before us, but you can't sue the state... You cannot sue the state of Florida for fraud unless the state of Florida waives their sovereign immunity.

[00:06:44] Speaker 02:
No, I'm not suing the state of Florida for anything.

[00:06:46] Speaker 02:
I'm saying this is an affirmative defense.

[00:06:50] Speaker 02:
Why can't it be broken?

[00:06:51] Speaker 03:
Well, no one's ever held that 101 is an affirmative defense.

[00:06:54] Speaker 03:
That would be new.

[00:06:55] Speaker 03:
That would be brand new.

[00:06:56] Speaker 03:
You'd be the first court to ever do it.

[00:06:59] Speaker 03:
But even so, I would say it's not an affirmative defense by definition.

[00:07:02] Speaker 04:
Wait, wait, wait, wait, wait, wait, wait.

[00:07:05] Speaker 04:
Supposing the affirmative defense they asserted was plaintiff's complaint fails to state a claim upon which relief may be granted.

[00:07:14] Speaker 03:
That's not an affirmative defense, Your Honor.

[00:07:16] Speaker 04:
Well, yes, it is.

[00:07:17] Speaker 03:
It's the standard affirmative defense.

[00:07:21] Speaker 03:
Well, an affirmative defense requires proof.

[00:07:25] Speaker 02:
Okay.

[00:07:25] Speaker 02:
Don't you agree that Section 282 of the Patent Code expressly articulates defenses that are available for someone accused of patent infringement?

[00:07:35] Speaker 02:
Yes.

[00:07:36] Speaker 02:
Section 282 of the Patent Code affirmatively lists a number of defenses.

[00:07:40] Speaker 02:
Do you disagree with the characterization of those as affirmative defenses?

[00:07:44] Speaker 02:
I do not.

[00:07:45] Speaker 03:
Okay.

[00:07:45] Speaker 02:
Because they require clear and convincing evidence.

[00:07:47] Speaker 02:
In Dealer Track v. Huber,

[00:07:50] Speaker 02:
Well, we've already held Section 101 requires clear and convincing evidence.

[00:07:54] Speaker 02:
Yes.

[00:07:55] Speaker 02:
I know, because I wrote an opinion that said that.

[00:07:56] Speaker 02:
Step two.

[00:07:57] Speaker 02:
OK.

[00:07:58] Speaker 02:
So section two, dealer tracker says that I'm going to quote, the defenses provided in the statute, comma, Section 282, comma, include not only the conditions of patentability in Section 102 and 103, but also those in Section 101, period.

[00:08:12] Speaker 02:
And that's a quotation from a prior case which we are bound by.

[00:08:17] Speaker 03:
Yes.

[00:08:19] Speaker 02:
And again, how are you suggesting we'd be the first case, the first court ever to hold that section 101 is an affirmative defense under section 282.

[00:08:28] Speaker 02:
Dealer Tracker, I just directly quoted you a holding that says expressly that, and I don't see how you think a panel of this court, even if we disagree with that holding, would have the authority to go against it.

[00:08:41] Speaker 03:
Well, first of all, I think that is a

[00:08:45] Speaker 03:
Maybe it was loose language.

[00:08:46] Speaker 03:
It's a slight bit of a misnomer to call 101 an affirmative offense like 102, 103, 112.

[00:08:51] Speaker 03:
It's not the same.

[00:08:53] Speaker 02:
I assure you, I know the judge who wrote it.

[00:08:54] Speaker 02:
It was not loose language.

[00:08:56] Speaker 03:
Well, it's not the same.

[00:08:57] Speaker 03:
101 is not the same as 102, 103, 112, because those have a patent.

[00:09:02] Speaker 02:
But now you're arguing why I should disregard the language.

[00:09:05] Speaker 02:
But as a panel, I don't get to do that.

[00:09:08] Speaker 03:
You do get to do that.

[00:09:08] Speaker 02:
I mean, loose language.

[00:09:09] Speaker 02:
Wait, am I supposed to say that was dicta?

[00:09:11] Speaker 03:
No, what you're supposed to say is this... So it's not dictated.

[00:09:14] Speaker 02:
Does an appellate court have the right to, as a panel, to disregard a prior panel decision that expressly decided that issue?

[00:09:21] Speaker 03:
I don't think you can disregard it, but you can certainly differentiate it.

[00:09:25] Speaker 03:
Here you have a private litigant going and trying to interfere with a private contract between the United States of America and the state of Florida and to vitiate... I don't understand.

[00:09:35] Speaker 02:
Do you think whether something is an affirmative defense or not differs?

[00:09:39] Speaker 02:
depending on who they're sued, it's kind of like, in your kitchen, do grits cook faster than every other kitchen?

[00:09:47] Speaker 03:
With sovereigns, that's absolutely true.

[00:09:49] Speaker 03:
What claims you can bring against a sovereign are completely different than what claims you can bring against a non-sovereign.

[00:09:55] Speaker 04:
When the sovereign's acting as a business entity, things change, don't they?

[00:10:02] Speaker 03:
No.

[00:10:03] Speaker 03:
In fact, that's what College Savings Bank said.

[00:10:05] Speaker 03:
that when, when you're acting as a, you're always a sovereign.

[00:10:08] Speaker 03:
Now the, look, it's up to the state to waive sovereign immunity.

[00:10:12] Speaker 03:
They can do it.

[00:10:13] Speaker 03:
It's a political, it's a political decision.

[00:10:16] Speaker 03:
We have 435 familiar with the Sabatino doctrine.

[00:10:19] Speaker 03:
Yes, I am familiar with the Sabatino doctrine.

[00:10:22] Speaker 03:
But what we also have is we have 435 people down the street who have to run for election.

[00:10:26] Speaker 03:
And if they want to invoke the 14th amendment, waive sovereign immunity and undo the contract between the United States and the state of Florida, they can do that.

[00:10:35] Speaker 03:
They didn't do that in 282.

[00:10:36] Speaker 03:
They did not waive sovereign immunity.

[00:10:38] Speaker 03:
So you're telling me the 14th Amendment is still good law?

[00:10:40] Speaker 03:
The 14th Amendment is still good law.

[00:10:42] Speaker 03:
And not only is the 14th Amendment still good law, there supposedly are some wholly capable people down the street of invoking it where they can and waiving sovereign immunity as to both 282 as to 101 or anything else they want because they haven't done it.

[00:10:56] Speaker 04:
I want to take you back.

[00:10:57] Speaker 04:
I miscited and I apologize.

[00:11:01] Speaker 04:
I should have said page 26.

[00:11:02] Speaker 04:
I'll take you to page 32 in a minute.

[00:11:05] Speaker 04:
But at 26, you only cite Knight.

[00:11:11] Speaker 04:
They're telling me that I should have looked at other cases for that purpose.

[00:11:14] Speaker 04:
But you only cite Knight, a State that voluntarily asserts its rights as a plaintiff in Federal court waives its 11th amendment immunity, but only as to compulsory counterclaims.

[00:11:26] Speaker 04:
And I walked through my analysis of Knight and you said, no, you should have looked at other cases.

[00:11:31] Speaker 04:
But you didn't cite it.

[00:11:35] Speaker 03:
I apologize.

[00:11:37] Speaker 03:
We should have.

[00:11:37] Speaker 03:
I mean, I argued the Tejik case to this court.

[00:11:40] Speaker 03:
So I'm highly familiar with Tejik and what it holds.

[00:11:42] Speaker 03:
But Tejik holds the same thing.

[00:11:44] Speaker 03:
So does Hydro Quebec.

[00:11:45] Speaker 04:
Let me take you to 32, where you discuss Alice.

[00:11:51] Speaker 04:
And you note in quote, in his additional reflections upon this court's decision in Alice,

[00:12:03] Speaker 04:
Then Chief Judge Rader noted, and you quote, of what precedential value are additional reflections?

[00:12:11] Speaker 04:
I mean, they might be like a lot of the article.

[00:12:19] Speaker 03:
I have no idea.

[00:12:20] Speaker 03:
Reflections have whatever power the three of you want them to have.

[00:12:26] Speaker 03:
Whether or not you believe it.

[00:12:27] Speaker 04:
Well, we'll reflect on that.

[00:12:28] Speaker 03:
Yeah, you can reflect on that.

[00:12:30] Speaker 03:
But I mean, whether or not you believe those reflections are valid or not valid

[00:12:34] Speaker 03:
That is certainly up to you to decide.

[00:12:36] Speaker 03:
I obviously agree.

[00:12:37] Speaker 03:
And I obviously think that to have a private litigant come in and destroy state property rights for the benefit of a private litigant is a classic violation of sovereign immunity.

[00:12:48] Speaker 03:
Congress is there to fix it if they want to fix it.

[00:12:50] Speaker 03:
State legislatures can fix it if they want to fix it.

[00:12:53] Speaker 03:
But that's the job of Congress or state legislatures.

[00:12:55] Speaker 03:
There is not a wit

[00:12:57] Speaker 03:
of discussion of waiving sovereign immunity in the Patent Act, in 282, in 101, or in any other part.

[00:13:04] Speaker 03:
They didn't talk about it.

[00:13:05] Speaker 03:
And you can't just imply that that's going to happen when it is never mentioned.

[00:13:09] Speaker 03:
A waiver has to be clear, unequivocal, open.

[00:13:13] Speaker 03:
It has to be absolutely stated.

[00:13:15] Speaker 03:
It's nowhere in the Patent Act.

[00:13:17] Speaker 03:
It's nowhere in the legislative history.

[00:13:19] Speaker 03:
It's nowhere in 101.

[00:13:20] Speaker 03:
It's nowhere in 282.

[00:13:22] Speaker 03:
You can't waive sovereignty because it's fair.

[00:13:25] Speaker 03:
Sovereign immunity is always unfair to the person who has it asserted against them.

[00:13:30] Speaker 03:
Believe me, I've represented babies with AIDS who got blood transfusions from state hospitals and they got wiped out on sovereign immunity.

[00:13:37] Speaker 03:
This isn't about fairness.

[00:13:39] Speaker 03:
It's about the structure of a multi sovereign democratic nation where the dual sovereignty is absolutely enshrined in the constitution.

[00:13:48] Speaker 03:
And if we're going to overcome dual sovereignty, it needs to be done by Congress or the states themselves.

[00:13:53] Speaker 03:
Now, as to 101, if we get to that, hopefully we don't, I'd like to have a minute or two to talk about 101.

[00:14:01] Speaker 04:
You're in your remote.

[00:14:02] Speaker 04:
You've got it.

[00:14:04] Speaker 03:
Well, 101.

[00:14:06] Speaker 03:
This is a classic.

[00:14:08] Speaker 03:
I don't even think this is close on 101.

[00:14:10] Speaker 03:
What we have here is a completely new function of a system.

[00:14:14] Speaker 03:
We have the original components of bedside monitoring devices,

[00:14:19] Speaker 03:
blood pressure, respiratory rate, heart rate, blood glucose, all those things.

[00:14:24] Speaker 03:
You had machines that did not talk to one another.

[00:14:27] Speaker 03:
What this invention did, it changed the entire functionality of the system.

[00:14:33] Speaker 03:
It changed everything.

[00:14:34] Speaker 03:
Could everything there be done by a human being?

[00:14:37] Speaker 03:
Absolutely not, and that's why people died.

[00:14:40] Speaker 03:
That's why people I know who died, who later on they go and they grab all the records and they sit down, they figure out two weeks later in a big review committee,

[00:14:48] Speaker 03:
about, oh, this is where it started.

[00:14:51] Speaker 03:
That's where the respiratory rate and the blood oxygen rate started to dovetail away from each other.

[00:14:57] Speaker 03:
Neither machine will alarm because both of them are within their normal limits.

[00:15:01] Speaker 03:
And then you add that fluid retention where diuretics could have been given.

[00:15:05] Speaker 03:
We didn't see that because that machine also didn't alarm.

[00:15:08] Speaker 03:
But when you have the ability to make all these machines talk to one another through specific means, drivers, segmented lookup tables, specific methods, not

[00:15:18] Speaker 03:
have them, not broad ranging statements, but specific methods.

[00:15:22] Speaker 03:
And now you have the ability for them to know what the other machines are doing.

[00:15:27] Speaker 03:
You can make combination alarms.

[00:15:29] Speaker 03:
You can save people's lives.

[00:15:30] Speaker 03:
This was an entirely newly functional system, never seen before.

[00:15:35] Speaker 03:
Millions of dollars were invested in it.

[00:15:37] Speaker 03:
Billions of dollars have been sold of systems that do this.

[00:15:41] Speaker 03:
This is a completely new paradigm in treatment.

[00:15:43] Speaker 03:
It's also a new paradigm in clinical research.

[00:15:46] Speaker 03:
It will allow artificial intelligence diagnoses because unless you have all of the inputs and all of the inputs talk to one another in real time synchronized, you cannot have AI diagnosis.

[00:15:58] Speaker 03:
This is not something that this court should say is not patentable because not only is it new functionality, it's a new means, it's a new method, it's never been done before.

[00:16:09] Speaker 03:
This is not close.

[00:16:11] Speaker 03:
To me, this is

[00:16:13] Speaker 03:
far, far beyond anything that would be patented eligible as an abstract idea.

[00:16:28] Speaker 01:
James Martin, Your Honors, 4GE.

[00:16:33] Speaker 01:
First off, on the immunity question, from our perspective, as the briefing reflects, sovereign immunity is irrelevant to this case.

[00:16:41] Speaker 01:
Let me ask you a couple of housekeeping questions.

[00:16:44] Speaker 04:
GE doesn't contest the University's assertion that sovereign immunity can be raised for the first time on appeal?

[00:16:52] Speaker 01:
No, we don't.

[00:16:52] Speaker 04:
Okay.

[00:16:53] Speaker 04:
And you agree that the Foundation is an arm of the State?

[00:16:59] Speaker 01:
Yes.

[00:17:00] Speaker 04:
Okay.

[00:17:01] Speaker 01:
Thank you.

[00:17:01] Speaker 01:
So the concept is potentially applicable, but as I said, irrelevant.

[00:17:06] Speaker 01:
And that follows from a three-part analysis.

[00:17:09] Speaker 01:
The first thing is that certainly sovereign immunity

[00:17:14] Speaker 01:
would deal with counterclaims.

[00:17:17] Speaker 01:
We don't dispute that, whether it was the Eleventh Amendment or State sovereign immunity writ large.

[00:17:23] Speaker 01:
But we don't have a counterclaim.

[00:17:26] Speaker 01:
We have an affirmative defense or we have a defense to litigation.

[00:17:32] Speaker 01:
We're not doing anything affirmative where the concept would apply, however it's characterized.

[00:17:39] Speaker 01:
The second thing is the waiver is broader.

[00:17:42] Speaker 04:
Well, you're affirmatively raising a defense.

[00:17:44] Speaker 01:
Of course, yes.

[00:17:45] Speaker 01:
But the point is that it's not a counterclaim, an affirmative claim against.

[00:17:53] Speaker 02:
I understand your point that affirmative defenses are permissible if the state has itself waived sovereign immunity by bringing suit.

[00:18:00] Speaker 02:
And I don't really think he even disputed that.

[00:18:02] Speaker 02:
He then went to, but this isn't a proper defense under 282.

[00:18:06] Speaker 02:
Can you deal with that?

[00:18:07] Speaker 01:
Well, can I start with the waiver point first?

[00:18:10] Speaker 01:
Because I think it's broader.

[00:18:12] Speaker 01:
Under Vascaff and under Lapides, the waiver comes from the filing of suit.

[00:18:18] Speaker 01:
Then we're entitled to defend it any way we want to, without implicating sovereign immunity.

[00:18:25] Speaker 04:
I mean, this hasn't been discussed at all, but it occurred to me that if you couldn't defend, that there would be an unlawful taking.

[00:18:34] Speaker 01:
Well, at the end of the day, it would be a due process violation directed at us.

[00:18:41] Speaker 01:
So the waiver is broader.

[00:18:43] Speaker 01:
Now, as to the 101-282 issue, that is settled by dealer track.

[00:18:49] Speaker 01:
It is settled specifically by Versada, where the same argument was advanced and made and rejected.

[00:18:57] Speaker 01:
Over hundreds of years of precedent that suggests that 101 is a patent validity

[00:19:02] Speaker 01:
And that's the way the statutory scheme works.

[00:19:06] Speaker 02:
What is the 100 years of precedent?

[00:19:08] Speaker 02:
What are you talking about?

[00:19:09] Speaker 01:
Well, I'm talking about the quote from, I'm sorry, over 50 years.

[00:19:15] Speaker 01:
My apologies on the 100.

[00:19:17] Speaker 01:
But in Versada, this Court said, Section 101 is a validity challenge, as Kay Thester case in our court and the Supreme Court shows.

[00:19:27] Speaker 01:
For over 50 years, the Supreme Court has stated

[00:19:30] Speaker 01:
Section 101 is a condition of patentability along with 102, 103.

[00:19:36] Speaker 01:
Also, it's viewed ineligibility as a claim of invalidity.

[00:19:40] Speaker 01:
On equal footing with 102 and 103, that comes from the Graham case.

[00:19:45] Speaker 01:
As I said, it's in Versata.

[00:19:47] Speaker 01:
It's in Bascom.

[00:19:48] Speaker 01:
It's in dealer track.

[00:19:49] Speaker 02:
So your view is that even if we were to disagree with that language, that's not relevant because we're a panel and we can't overrule a prior panel, and the prior panel decision in this case controls.

[00:20:01] Speaker 02:
It says so even I understand your point is this doesn't even have to be pigeonholed into 282 in order for you to prevail.

[00:20:09] Speaker 02:
I understand your bigger point, but on the smaller point, your argument is but it is

[00:20:14] Speaker 02:
covered by 282 because at least two prior cases have expressly said so, and the in-bank court would have to act to say otherwise.

[00:20:21] Speaker 01:
I agree with that.

[00:20:22] Speaker 02:
Okay.

[00:20:23] Speaker 02:
Is there anything else on that you wanted to cover?

[00:20:24] Speaker 02:
Because I actually wanted to move you the merits.

[00:20:26] Speaker 01:
Yes.

[00:20:27] Speaker 01:
Only that the SCA hygiene case does not change this analysis in any respect.

[00:20:32] Speaker 01:
It does not give the court license to go back and reexamine.

[00:20:36] Speaker 02:
Well, isn't that just because Latches, unlike eligibility, is not listed in the Patent Act?

[00:20:40] Speaker 01:
Well, the problem with the SCA hygiene case is that latches only, not only wasn't listed, but it was in conflict with what the statute provided.

[00:20:48] Speaker 01:
There's no inconsistency or conflict with the statute here.

[00:20:52] Speaker 01:
And number two, in, in SCA hygiene, when the court looked at the defense of estoppel, which also was not in the statute, but not in conflict with the statute, it recognized that estoppel could still survive.

[00:21:07] Speaker 01:
In SCA hygiene, we don't have a discussion of 101 v.

[00:21:10] Speaker 01:
282, and we have a defense here that's consistent with the statute, not in conflict with it.

[00:21:17] Speaker 01:
On the merits, what was described here as a patentable invention, indisputably, was a description of something that potentially could be patentable, but it was described as a novel breakthrough.

[00:21:33] Speaker 01:
That is not enough.

[00:21:37] Speaker 01:
We know from this Court's decisions that to get to patent eligibility, you have to go to the claim elements, construe it in light of the specifications, and look specifically at that language to see if there's an inventive concept.

[00:21:53] Speaker 02:
Well, one of the things that confused me when opposing counsel was standing up is he was claiming this has never been done before.

[00:21:59] Speaker 02:
It's never been done.

[00:22:00] Speaker 02:
But on column two of the patent, really, line one,

[00:22:03] Speaker 02:
It talks about how this could all be done with paper and manually with people integrating this psychological or physiological data.

[00:22:13] Speaker 02:
It just says that would consume substantial human resources and increase the likelihood of errors into the process because it would be done manually.

[00:22:20] Speaker 02:
But it could, I mean, the patent expressly says on its face the very process that they're claiming entitlement to was being done

[00:22:30] Speaker 02:
by paper and pen manually by people prior to this, right?

[00:22:35] Speaker 02:
So it's not the case that no one ever had before this patent the concept of integrating the data, the patent expressly on its face says it was being done manually by health care providers prior to this.

[00:22:49] Speaker 02:
Isn't this quintessentially the use a computer case?

[00:22:56] Speaker 02:
The patent itself says

[00:22:57] Speaker 02:
This was being done by humans before, but we figured out you can use a computer to integrate all the data and it'll have fewer errors.

[00:23:03] Speaker 01:
And do it faster.

[00:23:04] Speaker 01:
Or do it better.

[00:23:05] Speaker 01:
Right.

[00:23:06] Speaker 02:
And if you go to the claim or the specification... Are all of the components of the system basic components that... Is there an argument that any of the individual components are new, novel components?

[00:23:20] Speaker 02:
Like I think that they've made some arguments about the drivers, for example.

[00:23:23] Speaker 02:
Sometimes, you know, you can create a system and a component of that system is truly, you know, inventive such that even though it's something that could have been done by pen and paper, it's not just take a generic computer.

[00:23:36] Speaker 02:
It is we have created a special system that's capable of doing this that never existed before.

[00:23:42] Speaker 02:
So is there anything along those lines that you would like to address?

[00:23:46] Speaker 01:
Well, what I'll throw at you is I agree conceptually that a component of this system

[00:23:52] Speaker 01:
if properly claimed, could give rise to something that's patent eligible.

[00:23:57] Speaker 01:
But when you go to the claims that relate to the driver or the tables, which are the two features that are specifically mentioned, you are not going to find what this Court has insisted on, which is the technological hook, the improvement, the extra language that specifically claims a change in technology, functionality,

[00:24:22] Speaker 01:
computers or software.

[00:24:23] Speaker 02:
Which claim to the driver?

[00:24:24] Speaker 01:
So the driver, if you go to appendix 83... I'm on the patent, just tell me what claim.

[00:24:32] Speaker 01:
Okay, the driver is claim 10, I believe.

[00:24:38] Speaker 01:
And let me double check that.

[00:24:41] Speaker 02:
No, that's not the driver claim.

[00:24:42] Speaker 01:
I'm sorry.

[00:24:44] Speaker 01:
Yes, claim 10.

[00:24:45] Speaker 02:
Claim 10?

[00:24:46] Speaker 02:
At least one bedside computing device having at least one.

[00:24:49] Speaker 02:
Oh, there it is.

[00:24:50] Speaker 02:
I'm sorry.

[00:24:50] Speaker 02:
Bedside driver.

[00:24:51] Speaker 01:
So with respect to either the specification or the language, what you get at when you look at the driver is you get convert, you get interrupt, you get facilitate, you get interpret in the columns.

[00:25:09] Speaker 01:
But nowhere after that do we learn how that's accomplished.

[00:25:15] Speaker 01:
And how is the key to eligibility?

[00:25:18] Speaker 01:
It just happens.

[00:25:20] Speaker 01:
And this brings us back to the series of patents that this Court has looked at in numerous cases where we're back to collection analysis display.

[00:25:31] Speaker 01:
And that is not the inventive concept that gets beyond the eligibility inquiry.

[00:25:37] Speaker 04:
Breyer And there's no step two stuff.

[00:25:41] Speaker 01:
No.

[00:25:41] Speaker 01:
They're the inventive concept we know.

[00:25:44] Speaker 01:
has to still reflect the same kind of improvement.

[00:25:48] Speaker 01:
That's the difference.

[00:25:49] Speaker 01:
It's not just that the solution is.

[00:25:53] Speaker 01:
Yes.

[00:25:53] Speaker 01:
There could be if it was claimed, but it's not.

[00:25:56] Speaker 01:
And the fact that it's a novel solution and that's what's described, what we're left with then is patenting the abstract concepts which this Court has said we don't allow.

[00:26:08] Speaker 02:
I'll be honest, I have the word how written next to three paragraphs with a question mark.

[00:26:13] Speaker 02:
I can direct you to them, but I don't think it's probably necessary.

[00:26:16] Speaker 02:
On column seven, when it talks about the driver, this is one of my, I guess this would be my fourth how written next to it.

[00:26:23] Speaker 02:
The bedside driver can also, the bedside device can also contain a driver for each different bedside machine connected to.

[00:26:29] Speaker 02:
This driver can be used to translate the data.

[00:26:31] Speaker 02:
Each driver can have knowledge of this.

[00:26:33] Speaker 02:
Additional drivers can interpret the data.

[00:26:35] Speaker 02:
What?

[00:26:36] Speaker 02:
I mean,

[00:26:38] Speaker 02:
How?

[00:26:40] Speaker 01:
Right.

[00:26:40] Speaker 01:
How is it done?

[00:26:41] Speaker 01:
It just happens.

[00:26:43] Speaker 01:
That's the whole in the analysis.

[00:26:46] Speaker 01:
And as we know from cases that have been decided, as our 28-J letters, unfortunately, reflect, right up to the present, BSG technology is a perfect illustration of the tension that's going on here or the dispute.

[00:27:01] Speaker 01:
And in BSG technology, what was in the claims was the solution.

[00:27:07] Speaker 01:
It never got to the how.

[00:27:09] Speaker 01:
And the Court pointed out that under Alice, it's how those specific elements are claimed that matters, and that's where this patent falters.

[00:27:19] Speaker 01:
That's what the district court concluded walking through it.

[00:27:22] Speaker 01:
That analysis is consistent with this Court's case law, and it should be affirmed.

[00:27:31] Speaker 05:
Thank you.

[00:27:31] Speaker 05:
Thank you.

[00:27:36] Speaker 05:
Two minutes.

[00:27:39] Speaker 03:
Your Honor, it tells how.

[00:27:41] Speaker 03:
It talks about segmenting the data.

[00:27:42] Speaker 03:
It talks about drivers absolutely done for each individual device.

[00:27:48] Speaker 03:
This is not a situation, I mean, using the logic that we've heard here.

[00:27:52] Speaker 02:
Show me where in the pack.

[00:27:53] Speaker 03:
Yeah.

[00:28:01] Speaker 04:
As usual, Judge Moore took the words right out of my mouth.

[00:28:04] Speaker 04:
I've got to get my highlighted copy.

[00:28:13] Speaker 03:
OK, we talked about device drivers in column three.

[00:28:19] Speaker 03:
The bedside computing devices can include device drivers.

[00:28:22] Speaker 03:
What line is it, please?

[00:28:22] Speaker 03:
Oh, I'm sorry, eight.

[00:28:26] Speaker 03:
Various bedside with the bedside device can communicate.

[00:28:29] Speaker 03:
So these drivers have, I'm sorry?

[00:28:32] Speaker 03:
How?

[00:28:35] Speaker 03:
Well, then we talked about synchronization, segmentation, column three, lines 27.

[00:28:42] Speaker 03:
to 35, machine-independent format dynamically matched with discrete workflow data elements.

[00:28:49] Speaker 03:
For example, a data stream can be received from each of the bedside machines and a transport protocol particular to one of the bedside machines can be determined for each data stream.

[00:28:58] Speaker 03:
That's how.

[00:28:59] Speaker 03:
And yet another embodiment at line 44.

[00:29:01] Speaker 02:
No, no, no, no, no, no.

[00:29:02] Speaker 02:
That's like telling my children, you can each go and set the table.

[00:29:08] Speaker 02:
My children can each go set the table.

[00:29:10] Speaker 02:
My children can each translate all of this.

[00:29:13] Speaker 02:
My children are superstars.

[00:29:15] Speaker 02:
They can do all this.

[00:29:17] Speaker 02:
How are they going to do it?

[00:29:18] Speaker 02:
I've given them no direction whatsoever on how they're going to do it.

[00:29:20] Speaker 02:
You just said there's a device that's going to do this.

[00:29:22] Speaker 02:
Either it's already well known in VR, or you didn't enable it.

[00:29:27] Speaker 02:
That's your two choices.

[00:29:28] Speaker 02:
And neither one of those help you with 101.

[00:29:32] Speaker 03:
I disagree, Your Honor.

[00:29:33] Speaker 03:
I think that the drivers are also in paragraph in column seven at

[00:29:38] Speaker 03:
line 48 through 56 that talks about the transforming of data at column five, lines 33 through 37.

[00:29:47] Speaker 03:
I mean, we can abstract anything.

[00:29:51] Speaker 02:
Column five, 33 to 37, that's a giant howl next to it on my thing.

[00:29:55] Speaker 02:
The integration system can receive information, including physiological information from multiple sources, transform the information into data elements formatted according to a data scheme.

[00:30:05] Speaker 02:
We have no idea what data scheme, and we have absolutely no idea how

[00:30:09] Speaker 02:
This transformation is to take place, because there's nothing in this pattern that tells us.

[00:30:12] Speaker 03:
Well, a person of ordinary skill in the art would understand that.

[00:30:14] Speaker 03:
I mean, this... Then it's already well-known, isn't it?

[00:30:18] Speaker 03:
Well, that's a 102-103 argument.

[00:30:20] Speaker 02:
No, actually, it's unfortunately part of 101.

[00:30:23] Speaker 03:
But what we get down to is, you know, your example, this was all done by human hands.

[00:30:29] Speaker 03:
Yeah, people died.

[00:30:30] Speaker 03:
It was not done by human hands.

[00:30:32] Speaker 03:
So what was said... I asked you that question, I didn't get to.

[00:30:35] Speaker 03:
It's in the spec.

[00:30:36] Speaker 04:
Yes.

[00:30:38] Speaker 04:
wasn't true?

[00:30:40] Speaker 03:
No, what was in the spec was the prior art, was describing what the problems were.

[00:30:45] Speaker 03:
That is, people can always go and take data after someone's dead and reconstruct what happened.

[00:30:51] Speaker 02:
Wait, the spec says nothing about dead people.

[00:30:53] Speaker 02:
The spec says this manual data entry process consumes substantial human resources.

[00:30:58] Speaker 02:
and increases the likelihood of errors.

[00:31:01] Speaker 02:
It doesn't say everybody died.

[00:31:02] Speaker 03:
That's not talking about, it's talking about a different error.

[00:31:04] Speaker 03:
You're talking about transcription errors.

[00:31:06] Speaker 03:
You're talking about human error in transcribing information.

[00:31:10] Speaker 03:
That's what is meant.

[00:31:12] Speaker 03:
It talks about human error in transcribing data.

[00:31:15] Speaker 03:
If you were to write to her, was she to write to him, you know, the telephone tag thing.

[00:31:21] Speaker 03:
But what we have here is a situation where you have bedside machines that don't talk to one another.

[00:31:26] Speaker 03:
They all are independent.

[00:31:28] Speaker 03:
They alarm independently.

[00:31:29] Speaker 03:
They read out independently.

[00:31:31] Speaker 03:
And to figure out what happened to a particular patient at a particular time, you have to go back and you have to figure it out.

[00:31:37] Speaker 03:
And we had expert declarations that talked about this in great detail, none of which were refuted.

[00:31:43] Speaker 03:
They offered zero evidence.

[00:31:45] Speaker 03:
There was no claims construction on what a driver means.

[00:31:48] Speaker 03:
There was no claims construction on what segmented data means.

[00:31:51] Speaker 03:
You can take those terms out of the claims and you can construe them consistently with the specification and you can get a much narrower result.

[00:32:03] Speaker 03:
But there's no preemption here.

[00:32:05] Speaker 03:
There's zero preemption risk.

[00:32:07] Speaker 03:
They don't even argue there's a preemption risk.

[00:32:10] Speaker 03:
But we had expert declarations unrefuted.

[00:32:14] Speaker 03:
We never got a claims construction.

[00:32:16] Speaker 03:
We ought to have at least the opportunity under Atrix software and other cases to go in and make them put on a case that this is conventional use of these components.

[00:32:26] Speaker 03:
In fact, it's not conventional use because the only evidence of conventional use is that they were each used individually.

[00:32:33] Speaker 03:
They were never used together.

[00:32:36] Speaker 05:
We've far exceeded our time.

[00:32:38] Speaker 05:
Thank you, Your Honor.