[00:00:54] Speaker 04:
Okay, the next argued case is number 17, 1930, voter verified, incorporated against election systems and software.

[00:01:04] Speaker 04:
Mr. Provotola.

[00:01:05] Speaker 01:
Thank you, Your Honor.

[00:01:07] Speaker 01:
May it please the Court.

[00:01:10] Speaker 01:
This case sweeps back to 2009 when it was first actually the case and the issues that are presented were first presented to the District Court in Middle District of Florida.

[00:01:22] Speaker 01:
And the result of that particular lawsuit terminated with the appeal before this court in which there was a total affirmance.

[00:01:42] Speaker 01:
Among the things that were affirmed by this court was the previous, in that lawsuit,

[00:01:53] Speaker 01:
which is of course the predecessor to this action for infringement against the same parties and with respect to the same issues.

[00:02:08] Speaker 01:
So when that appeal was concluded, this case had been frozen into a determination of liability on the part of the defendant.

[00:02:23] Speaker 03:
Mr. Profitola, we're dealing with 101.

[00:02:26] Speaker 03:
Yes.

[00:02:27] Speaker 03:
And even if we agree with you that the law didn't change, after all, you can go back to Bilski, where there's a holding that method patents, business method patents are not patent eligible.

[00:02:45] Speaker 03:
And even putting aside the estoppel issue, why shouldn't we just look at this

[00:02:52] Speaker 03:
under well-established 101 standards and see it as a bunch of abstract ideas.

[00:03:01] Speaker 01:
Well, that's basically what the defendants would have you do.

[00:03:05] Speaker 01:
And of course, I don't know how it would constitute a bunch of abstract ideas unless you dissected the claims into their pieces and said, each of these pieces are not totally inventive.

[00:03:22] Speaker 01:
And therefore, the accumulation or the combination cannot be invented.

[00:03:28] Speaker 01:
And of course, that is precisely what was argued against by Justice Thomas in his Bilsky concurrence.

[00:03:41] Speaker 01:
This is the error that you could fall into by thinking that you can take a combination which may happen to include

[00:03:52] Speaker 01:
various items that are common to a process, like the election process, and thereby examine each one and reduce it into terms that are common.

[00:04:09] Speaker 03:
But there's nothing new here.

[00:04:12] Speaker 03:
It's voting.

[00:04:13] Speaker 03:
It's printing of votes.

[00:04:15] Speaker 03:
It's comparing.

[00:04:16] Speaker 03:
The words aren't new.

[00:04:17] Speaker 03:
Votes and a decision and inputting of information.

[00:04:22] Speaker 03:
doesn't look like it meets any of the Alice or Mayo standards?

[00:04:27] Speaker 01:
Oh, it does.

[00:04:28] Speaker 01:
Because what you're doing is essentially you're referring to words that make up the claims and say these things are abstract.

[00:04:36] Speaker 01:
Well, of course.

[00:04:38] Speaker 01:
All words are abstract.

[00:04:39] Speaker 01:
They all represent different concepts.

[00:04:42] Speaker 01:
And it's the accumulation and the combination of concepts

[00:04:46] Speaker 01:
That was the reason why this was found to be a patentable invention on the part of the patent office.

[00:04:57] Speaker 03:
But a combination of concepts is itself abstract.

[00:05:04] Speaker 01:
A combination of concepts is itself abstract.

[00:05:07] Speaker 03:
You said this is a combination of concepts.

[00:05:09] Speaker 01:
No, no, it's a combination of different steps, you see, different actions.

[00:05:15] Speaker 01:
And in their combination, possibly each one could be considered to be unpatentable by itself, of course, right?

[00:05:25] Speaker 01:
But the combination had never been done before.

[00:05:29] Speaker 01:
And it resulted in something which was the exact objective of the patent itself.

[00:05:37] Speaker 01:
The patent itself is directed to producing a perfect ballot.

[00:05:42] Speaker 01:
In other words, a ballot that

[00:05:44] Speaker 01:
was voted for by the voter, and which actually represents, without mistake, his vote.

[00:05:55] Speaker 01:
And it is the processing of that, that particular type of ballot, that is the basis for the invention.

[00:06:03] Speaker 01:
This is pretty well stated in the background of the invention and in the patent itself.

[00:06:13] Speaker 01:
what was addressed in that particular situation.

[00:06:18] Speaker 01:
This was during the 2000 election in which one of the co-inventors was the chairman of the canvassing board of Volusia County, which was the only county that actually conducted and finished a recount.

[00:06:33] Speaker 01:
The fact is that during the process of this canvassing and production of this

[00:06:43] Speaker 01:
production of this recount, it was observed by one of the inventors that the biggest problem was the necessity for interpretation of different markings on the ballot.

[00:06:57] Speaker 01:
There's a thing called a mark-sense ballot, which I'm sure you're all familiar with, because you probably use them.

[00:07:04] Speaker 01:
You go to a polling place, you're handed a ballot with a bunch of circles and names on it, and you're supposed to fill in the circle.

[00:07:11] Speaker 01:
Well, the Marksense ballot is very difficult to use.

[00:07:15] Speaker 01:
As a matter of fact, there's no guarantee that any of the votes that are made with the Marksense ballot are properly counted, because any deviation can be rejected by the machine.

[00:07:29] Speaker 01:
Now, there are certain remedies that have been used to try to correct that, but there's nothing certain about whether or not the ballot actually represents the votes of the voter.

[00:07:40] Speaker 01:
in terms of how you interpret a MarkSense ballot.

[00:07:44] Speaker 01:
So that was the whole objective of this patent, is to produce a ballot which is generated by a computer based upon the input from the voter, whereby these MarkSense ballots are precisely filled out and can be precisely counted by the voting counting machine.

[00:08:09] Speaker 01:
And that's basically it.

[00:08:10] Speaker 01:
Now it's not just a question.

[00:08:15] Speaker 02:
Let's look at the claim.

[00:08:17] Speaker 02:
Let's look at claim one and let's go backwards here and apply the Alice test.

[00:08:23] Speaker 01:
Claim one?

[00:08:24] Speaker 02:
Yes.

[00:08:25] Speaker 01:
Claim 49 or?

[00:08:27] Speaker 02:
Claims 49.94.

[00:08:28] Speaker 02:
Right.

[00:08:29] Speaker 02:
And claim one is representative of those claims.

[00:08:33] Speaker 01:
I don't think it is.

[00:08:34] Speaker 02:
Okay.

[00:08:35] Speaker 03:
Well, which claim would you like us to look at?

[00:08:37] Speaker 03:
Claim 49 was held invalid already for obviousness, right?

[00:08:41] Speaker 01:
No, that was the case.

[00:08:44] Speaker 01:
Which claim would you like us to look at?

[00:08:46] Speaker 01:
Look at Claim 49, because Claim 49 is not held invalid for its contribution to all of its dependent claims.

[00:08:55] Speaker 01:
There are numerous claims that are dependent on Claim 49, which were... Judge Rainier has asked you to focus on the invention.

[00:09:04] Speaker 03:
Claim 49.

[00:09:05] Speaker 03:
And he said, what about claim one?

[00:09:08] Speaker 03:
You said not claim one.

[00:09:09] Speaker 03:
No, claim one is the invention also.

[00:09:13] Speaker 01:
But most important, as with respect to this case, and with respect to the infringement action that has been brought, is claim 49.

[00:09:23] Speaker 01:
And claim 49, claim 85, and claim 83.

[00:09:27] Speaker 01:
Now those are all the dependent claims.

[00:09:30] Speaker 01:
The only claim that was held to be invalid was by this court, by

[00:09:35] Speaker 01:
two of the members of this court, with respect to the so-called prior art that was claimed to actually have been applied.

[00:09:48] Speaker 01:
That's 49.

[00:09:49] Speaker 01:
Against 49.

[00:09:50] Speaker 03:
So it's dead.

[00:09:51] Speaker 03:
Claim 49 is dead.

[00:09:53] Speaker 01:
No, Claim 49 lives in all of the dependent claims, the claims that are dependent upon it by statute.

[00:10:00] Speaker 02:
Claim 49 has been

[00:10:02] Speaker 01:
deemed to be invalidated.

[00:10:04] Speaker 01:
Right, and it can be invalidated by this court for the time being, but not necessarily invalidated in this action, because that existed in that action.

[00:10:16] Speaker 02:
Now, the defense might raise the issue... Which claim do you want us to look at in terms of... Look at claim 49.

[00:10:23] Speaker 02:
Okay, I'm looking at 49 now.

[00:10:25] Speaker 02:
Good.

[00:10:26] Speaker 02:
You have a... It's a method claim.

[00:10:29] Speaker 02:
Yes.

[00:10:30] Speaker 02:
Okay.

[00:10:30] Speaker 02:
You have a computer.

[00:10:33] Speaker 02:
Voting by vector.

[00:10:34] Speaker 02:
I don't know what that means.

[00:10:35] Speaker 01:
No, that was a misprint by the patent office.

[00:10:38] Speaker 01:
All right.

[00:10:38] Speaker 02:
Hold on, hold on.

[00:10:41] Speaker 02:
It's in here.

[00:10:43] Speaker 02:
We're looking at claim 49.

[00:10:45] Speaker 02:
Okay.

[00:10:46] Speaker 02:
And we have a computer.

[00:10:49] Speaker 02:
We have a voting station.

[00:10:51] Speaker 02:
We have a ballot.

[00:10:54] Speaker 02:
We have printing.

[00:10:56] Speaker 02:
We have storage for temporary storage for votes.

[00:11:01] Speaker 02:
I guess that's like a database.

[00:11:05] Speaker 02:
Talk about comparison, but I don't see how.

[00:11:07] Speaker 02:
I think the human does that, checks out the ballot.

[00:11:12] Speaker 02:
You're not claiming that.

[00:11:14] Speaker 02:
Excuse me.

[00:11:15] Speaker 02:
What do you mean I'm not claiming it?

[00:11:17] Speaker 02:
You're not claiming the human being looking at the ballot.

[00:11:21] Speaker 02:
I'm looking here.

[00:11:22] Speaker 01:
It's the voter that looks at the ballot to decide.

[00:11:25] Speaker 02:
You're not claiming the voter looking at the ballot.

[00:11:27] Speaker 02:
And if you do that, then you're going to have a bigger problem.

[00:11:31] Speaker 01:
I do not because that is a participation.

[00:11:34] Speaker 02:
When I look at 49 and I see the methods and I see the steps, it's all conventional.

[00:11:40] Speaker 02:
There's nothing inventive there.

[00:11:43] Speaker 02:
There's nothing new.

[00:11:44] Speaker 01:
The printing of the ballot is not conventional.

[00:11:47] Speaker 02:
The printing of the votes... Printing of ballots is not conventional.

[00:11:49] Speaker 01:
No, the printing of the votes on the ballot is not conventional.

[00:11:52] Speaker 01:
That had never been done before.

[00:11:54] Speaker 01:
That's printing... Of the votes on the ballot.

[00:11:57] Speaker 01:
In other words, the Marksense ballot has all the dots.

[00:12:00] Speaker 01:
They have to be filled out, right?

[00:12:03] Speaker 01:
And when they're filled out by a person, they're usually screwed up.

[00:12:07] Speaker 01:
But the fact is that what we have is a machine, right?

[00:12:12] Speaker 01:
A printer that responds to input and fills out the ballot perfectly so that there can be no mistake as to what the voter voted for.

[00:12:23] Speaker 01:
And it is that aspect of it, including the voter's review of that ballot.

[00:12:30] Speaker 01:
after it's printed from his input into the computer.

[00:12:34] Speaker 01:
When he examines that, he gets an opportunity to determine, well, is this what I really voted for?

[00:12:41] Speaker 01:
And when that determination is made, he has made the comparison.

[00:12:46] Speaker 01:
Now, all of that is included within the system, within the system that is accused of infringing.

[00:12:55] Speaker 01:
And the fact is that the main reason that the middle district

[00:13:00] Speaker 01:
And this court considered that to be inappropriate and not infringing was because of the Muny auction case and Muny auction doctrine and the single entity rule and the necessity for there being an employment or agency relationship between the voter

[00:13:30] Speaker 01:
and the company that produced the system.

[00:13:37] Speaker 01:
So the fact is that because there was no such employment relationship, it was found not to infringe.

[00:13:46] Speaker 01:
However, there is no way that anyone can go into a voting situation and do what he pleases.

[00:13:57] Speaker 01:
He has to adhere to the voting system

[00:13:59] Speaker 01:
that he is presented with.

[00:14:03] Speaker 01:
And having been presented with that situation, he has to conform to it, and thereby is under the control of whoever produced and provided the voting system, and thereby complies with the issues that are usually presented with respect to control in the BMC case, which of course established the single entity rule.

[00:14:30] Speaker 01:
So now this court, of course, I think wisely, disposed of that aspect of the single entity rule in the Akamai cases.

[00:14:42] Speaker 03:
We're not dealing with that, the counsel.

[00:14:44] Speaker 03:
Excuse me?

[00:14:45] Speaker 03:
You're consuming time with an issue that is not before us, the Akamai rule.

[00:14:52] Speaker 01:
Oh, I'm just pointing out why we are here.

[00:14:54] Speaker 01:
And the reason we're here is because absent all

[00:14:58] Speaker 01:
these things that have been overturned and overruled.

[00:15:02] Speaker 01:
We have already won this action, save for the Hail Mary Pass that has been attempted by the motion to dismiss under Rule 12, I think it's 12B.

[00:15:16] Speaker 01:
So that is a Hail Mary Pass for sure.

[00:15:19] Speaker 01:
And it is the wildest application, a least logical approach to determining whether or not this is an abstract idea.

[00:15:29] Speaker 01:
I wonder if we can make application to ordinary philosophical principles in determining what an abstract idea is.

[00:15:40] Speaker 01:
You can't patent an abstract idea, such as a voting system that makes a perfect ballot.

[00:15:48] Speaker 01:
That's an abstract idea, not the precise illumination of all the steps that are necessary to carry that out.

[00:15:57] Speaker 01:
So if you want an abstract idea, that's it.

[00:16:01] Speaker 01:
This is a general description of what we have.

[00:16:04] Speaker 01:
And it is comprised of words, which are concepts, and therefore abstract.

[00:16:09] Speaker 01:
And if that's what you have to hang your head on, obviously there is a departure here from ordinary philosophical principles as to what abstract actually means.

[00:16:19] Speaker 01:
So that being the case, the

[00:16:23] Speaker 01:
The other thing that was determined, if you read the order, the judge's order, which is wholly grouped with non-sequiturs and assumptions, then one of the main things that he held in that process was that this thing is using a computer, that there is a computer that's used by this process, and therefore it is

[00:16:54] Speaker 01:
invalid under the Alice rule, because the computer is actually employed in some part.

[00:17:04] Speaker 01:
But the computer is not employed to completely use and completely utilize the system.

[00:17:11] Speaker 01:
It is used only for the selection and printing of the ballot.

[00:17:17] Speaker 01:
The rest of the system, the rest of the method, is something that the

[00:17:23] Speaker 01:
Uh, the, uh, voter is forced by not forced, but has to voluntarily comply with in terms of carrying out the system and thereby is under the control of the voting authority, which is using the system, which is, which was purchased on, on the basis of that particular control.

[00:17:45] Speaker 04:
So let's hear from the other side and we'll save you rebuttal time.

[00:17:51] Speaker 01:
Thank you.

[00:17:56] Speaker 00:
Mr. Evans.

[00:17:58] Speaker 00:
Thank you, Your Honor.

[00:17:59] Speaker 00:
May it please the court.

[00:18:01] Speaker 00:
With regard to the section 101 issue that we have present here, I believe the abstract idea in the claims is the vote collection verification that the trial judge found.

[00:18:12] Speaker 00:
In the briefing, plaintiff asserted that the representative claims here are claims 49, 85, and 93.

[00:18:20] Speaker 00:
He cites those again today.

[00:18:23] Speaker 00:
As Your Honor noted, Claim 49 has already been found invalid on PriorArt.

[00:18:27] Speaker 00:
PriorArt showed the idea of using a computer to fill out a ballot and count the ballot.

[00:18:31] Speaker 00:
If you look at Claim 85, it's identical to Claim 49, except that Claim 85 is actually broader because it's missing the inputting of information step that you find in Claim 49.

[00:18:47] Speaker 03:
So, Claim 85.

[00:18:49] Speaker 03:
I've got physical steps to Claim 85.

[00:18:52] Speaker 03:
Voting, printing, is that?

[00:18:57] Speaker 03:
In other words, it's not all abstract, right?

[00:19:00] Speaker 00:
I believe it's abstract, Your Honor, because under Mayo, merely implementing an abstract idea with a computer is not enough.

[00:19:06] Speaker 00:
And here, what you have is a computer.

[00:19:08] Speaker 03:
In other words, these are well established.

[00:19:10] Speaker 03:
To the extent that there are physical actions, they're well established and known.

[00:19:16] Speaker 00:
Yes.

[00:19:16] Speaker 00:
You vote with a computer.

[00:19:17] Speaker 00:
You're basically giving input to a printer.

[00:19:20] Speaker 00:
The computer prints what you want it to print.

[00:19:22] Speaker 00:
You look at the output of the printer and you say, is this what I want or not what I want?

[00:19:25] Speaker 00:
If it is, you vote.

[00:19:27] Speaker 00:
If it's not, you ask for a new ballot.

[00:19:29] Speaker 03:
You think the district court erred in saying that the law changed with Alice?

[00:19:34] Speaker 00:
I believe the law did change with Alice.

[00:19:36] Speaker 00:
Really?

[00:19:37] Speaker 00:
I believe so.

[00:19:38] Speaker 03:
First of all, Alice affirmed us where we had held those claims were abstract.

[00:19:44] Speaker 03:
And then there was Mayo.

[00:19:45] Speaker 03:
And then there was Bilsky.

[00:19:47] Speaker 03:
And so how did Alice add a detail?

[00:19:51] Speaker 00:
I'm sorry.

[00:19:51] Speaker 00:
Mayo changed the law.

[00:19:53] Speaker 00:
Alice came after Mayo.

[00:19:54] Speaker 00:
I believe Mayo changed the law.

[00:19:57] Speaker 00:
The motion here that originally started this all was filed before Bilsky.

[00:20:01] Speaker 00:
Judge Fawcett decided that motion shortly after Bilsky in September 2010.

[00:20:05] Speaker 03:
This second case on appeal here was filed after Mayo, right?

[00:20:10] Speaker 00:
Yes.

[00:20:12] Speaker 00:
So the second case on appeal is after the change in the law.

[00:20:14] Speaker 00:
And so we believe since there was a change in the law, issue preclusion does not prevent us from raising this issue again.

[00:20:20] Speaker 00:
Secondly,

[00:20:21] Speaker 00:
for issue preclusion to apply at all, apart from the fact that it was a change in the law, separately you have to have four things for issue preclusion to apply, two of which I don't believe apply here.

[00:20:32] Speaker 00:
One of the things is that the issue had to actually be litigated the first time around.

[00:20:36] Speaker 00:
On the first time around, one of our affirmative defenses was Section 101.

[00:20:41] Speaker 00:
Plaintiffs moved broadly to say none of the affirmative defenses apply.

[00:20:44] Speaker 00:
We selected the ones that seemed most apt at that time.

[00:20:47] Speaker 00:
That was a pre-Bilsky moment.

[00:20:49] Speaker 00:
And we did not assert 101 at that time.

[00:20:52] Speaker 00:
Judge Fawcett found that we made no response to the Section 101 defense, and so she entered judgment against us on Section 101.

[00:21:00] Speaker 00:
So it was never actually litigated.

[00:21:02] Speaker 00:
Separately.

[00:21:03] Speaker 04:
Your theory is that by not responding, all estoppels were avoided?

[00:21:09] Speaker 00:
Yes, Your Honor.

[00:21:10] Speaker 04:
Because for issue preclusion to apply... Even though summary judgment was granted?

[00:21:16] Speaker 00:
Yes, Your Honor, because we didn't oppose it.

[00:21:17] Speaker 00:
And separately,

[00:21:19] Speaker 00:
The decision under Section 101 was not critical and necessary to that part of the judgment.

[00:21:23] Speaker 00:
It wasn't critical.

[00:21:24] Speaker 04:
Did you cite precedent to that effect?

[00:21:26] Speaker 04:
If a case is properly before a court and you decide not to respond to a particular issue, you can remove that impact from an adverse judgment?

[00:21:41] Speaker 00:
I believe we cited in the brief, when you take a consent judgment,

[00:21:48] Speaker 00:
when you accept an issue by consent, that the estoppel doesn't apply in a subsequent lawsuit.

[00:21:55] Speaker 00:
As importantly, I believe, Your Honor, the 101... That's different from default, right?

[00:22:00] Speaker 02:
Apologize?

[00:22:00] Speaker 02:
That's different from default.

[00:22:02] Speaker 02:
I mean, you chose not to litigate it, but the issue was properly before the court.

[00:22:07] Speaker 00:
The issue was before the court, Your Honor.

[00:22:09] Speaker 02:
It was litigated.

[00:22:10] Speaker 02:
At least one of the parties is litigating it.

[00:22:13] Speaker 00:
Yes, Your Honor.

[00:22:14] Speaker 00:
They certainly asked to have judgment entered on all of our defenses.

[00:22:19] Speaker 00:
Replying to simply all of those, there were seven motions for summary judgment, I believe, filed against this.

[00:22:25] Speaker 00:
And replying to all of them required a lot of different issues and things to be briefed.

[00:22:31] Speaker 00:
And at some point, we had to pick and choose.

[00:22:33] Speaker 00:
And we did pick and choose.

[00:22:34] Speaker 00:
And secondly, when Judge Fawcett entered the order finding that we were not liable for patent infringement, Section 101 was not critical and necessary to her decision.

[00:22:42] Speaker 00:
She found there was no infringement.

[00:22:43] Speaker 00:
She also found invalidity of the claims.

[00:22:46] Speaker 00:
When you look at the claims that are issued here, 49 and 85, 49 was found invalid in the prior art, 85 is broader because it's missing one of the elements, and claim 93 only adds a tabulation step.

[00:22:57] Speaker 00:
Notice you count the vote after you've actually cast the ballot.

[00:23:00] Speaker 00:
And so we submit that there's nothing novel here for purposes of doing an abstract idea analysis in terms of does it add anything beyond the abstract idea.

[00:23:08] Speaker 00:
We submit it does not.

[00:23:14] Speaker 00:
So I believe if we step back to issue of preclusion, of the four things required to show issue of preclusion, I submit it wasn't actually litigated because, as Judge Fawcett found, we didn't oppose it.

[00:23:26] Speaker 00:
We did oppose other things.

[00:23:28] Speaker 00:
We did not oppose that.

[00:23:29] Speaker 00:
And it wasn't critical and necessary to her decision finding that we had no liability under this patent.

[00:23:34] Speaker 00:
Separately, I believe that we filed the original motion before Bilski.

[00:23:38] Speaker 00:
She entered her summary judgment shortly after Bilski.

[00:23:41] Speaker 00:
Final judgment was entered.

[00:23:43] Speaker 00:
Subsequent to that,

[00:23:44] Speaker 00:
The Mayo decision was handed down.

[00:23:46] Speaker 00:
Subsequent to Mayo, Alice was handed down.

[00:23:49] Speaker 00:
So all of this happened before Mayo and Alice.

[00:23:51] Speaker 00:
In the mortgage greater case, the issue was whether or not Mayo was a sufficient change in the law to allow someone under some pretty rigorous local rules to add a Section 101 defense.

[00:24:01] Speaker 03:
But this case was filed after all these decisions, right?

[00:24:06] Speaker 00:
The first case was not the current lawsuit.

[00:24:08] Speaker 03:
But the first case isn't before us.

[00:24:10] Speaker 00:
The current lawsuit was filed after everything.

[00:24:12] Speaker 00:
That's correct, Your Honor.

[00:24:14] Speaker 00:
Yes.

[00:24:14] Speaker 00:
And so after the law changed, the second case was filed.

[00:24:18] Speaker 02:
What's the test for changing the law with respect to estoppel?

[00:24:22] Speaker 00:
If you have a change in the law, then the estoppel would not apply to the extent the change in the law would give you a different result after the law changed versus the law before the change.

[00:24:31] Speaker 02:
And your argument here with respect to changing the law is that there was no change?

[00:24:38] Speaker 00:
No.

[00:24:38] Speaker 00:
What I'm saying is before the whole section 101 issue

[00:24:44] Speaker 00:
came into focus for everyone before Bilsky, before Alice, before Mayo.

[00:24:48] Speaker 00:
Computer programming was regularly accepted by the Patent Office as a valid patentable subject matter, and those patents were regularly enforced by the courts.

[00:24:58] Speaker 00:
Bilsky started the move away from that.

[00:25:01] Speaker 00:
Mayo clarified it, and then Alice presented it as a formula two-part test.

[00:25:07] Speaker 00:
This, our first lawsuits, when we say it should not have stopped us in the second lawsuit, they came after all that.

[00:25:12] Speaker 00:
The first lawsuit came before all that.

[00:25:15] Speaker 00:
The original motion was filed before all that.

[00:25:17] Speaker 00:
And so we didn't have the benefit of that new change in the law at the time we filed the original papers.

[00:25:29] Speaker 00:
But even if we did, I would still say that

[00:25:32] Speaker 00:
It wasn't actually litigated, and nor was it necessary to her decision.

[00:25:35] Speaker 00:
Judge Faust's decision in the first case.

[00:25:37] Speaker 00:
And so under either event, a change in the law, or it wasn't actually litigated, or it wasn't necessary to her decision under any of those three rationales, I believe.

[00:25:46] Speaker 02:
Do you have authority for your proposition that having the default entry or default judgment here with the section 101 that

[00:26:02] Speaker 02:
That's not collaterally stopped?

[00:26:05] Speaker 01:
Yes, Your Honor.

[00:26:08] Speaker 02:
And I'm asking for the default nature of what we're talking about, that that's not having litigated the issue.

[00:26:28] Speaker 00:
Your Honor, in Meyer versus Rigdon,

[00:26:30] Speaker 00:
Seventh circuit 1994 accordingly default judgments are not given preclusive effect Foster versus halco manufacturing federal circuit 1991 Where a judgment between parties is entered by consent prior to trial on any issue?

[00:26:46] Speaker 00:
No issue may be said even fully and fairly are actually litigated These are all at page 27 of our brief your honor

[00:26:55] Speaker 00:
Restatement second in judgments, we have cited there too.

[00:26:58] Speaker 00:
In the case of a judgment entered by confession, consent, or default, none of the issues is actually litigated.

[00:27:03] Speaker 00:
Therefore, the rule of this section does not apply with respect to any issue in a subsequent action.

[00:27:08] Speaker 00:
So I believe when you consent to the outcome in a first case, especially when it's not one critical to the outcomes, the first outcome, you shouldn't be held to be precluded from litigating it in a second lawsuit.

[00:27:20] Speaker 00:
This isn't a situation where we've gone back in to try to undo something that was done.

[00:27:24] Speaker 00:
with something we consented to the first time.

[00:27:26] Speaker 00:
This is a situation where we've been sued on the identical patent against many identical products, where it's already been found invalid or not infringed on every claim.

[00:27:36] Speaker 00:
So it was asserted.

[00:27:37] Speaker 00:
And so I believe when you look at the change in the law, you realize this was using a computer to print a piece of paper and have the person who printed that paper confirm, yes, that's what I meant to print.

[00:27:49] Speaker 00:
And to me, that's a very abstract idea.

[00:27:51] Speaker 00:
The very fundamental use of a general purpose computer

[00:27:54] Speaker 00:
to print documents.

[00:27:58] Speaker 02:
When you look at the pen, this is a whole, who's doing the verification in that step?

[00:28:06] Speaker 02:
Is it the human or the human?

[00:28:08] Speaker 02:
That's the voter.

[00:28:08] Speaker 00:
The voter looks at the ballot according to the claim, claim 49.

[00:28:12] Speaker 00:
I believe it calls out the voter, particularly in claim 49.

[00:28:16] Speaker 00:
Printing of the votes of the voter from the votes temporarily stored in the computer.

[00:28:20] Speaker 00:
So the computer takes the voter's input and prints the ballot.

[00:28:24] Speaker 00:
The next step comparison by the voter calls requires the voter to compare it of the printed votes with the votes temporarily stored in the computer for the voting station.

[00:28:35] Speaker 00:
So the voting station displays how you voted and then they give you the printout and the voter is supposed to compare the printout against the screen.

[00:28:42] Speaker 00:
And then decision by the voter as to whether a printed ballot is acceptable or unacceptable.

[00:28:47] Speaker 00:
So they make the comparison.

[00:28:49] Speaker 00:
They say, is this acceptable or unacceptable?

[00:28:51] Speaker 00:
I need to make that decision.

[00:28:53] Speaker 00:
Upon making that decision, you input information as to the acceptability of the printed ballot by the voter.

[00:28:58] Speaker 00:
So the voter says it's acceptable or not acceptable.

[00:29:01] Speaker 00:
And that, to me, falls squarely within Mayo's requirement that simply using a computer to implement an abstract idea is not patentable subject matter.

[00:29:13] Speaker 00:
Anything else?

[00:29:13] Speaker 04:
OK.

[00:29:17] Speaker 00:
Thank you.

[00:29:18] Speaker 04:
Thank you.

[00:29:19] Speaker 04:
Thank you, Mr. Flint.

[00:29:24] Speaker 01:
It should not be forgotten that the issues determined in the first case against the defendant with respect to the 101, 102, 103 issues were raised by the defendant in a counterclaim for declaratory judgment.

[00:29:48] Speaker 01:
And we asked for a summary judgment on that counterclaim.

[00:29:54] Speaker 01:
for declaratory judgment, which they defended against.

[00:29:58] Speaker 01:
And I have no reason how they selected their desires to be known to the trial judge.

[00:30:06] Speaker 01:
But the fact is that it was a summary judgment on their declaratory judgment, their declaratory action for declaratory judgment, that the claims were all invalid.

[00:30:21] Speaker 01:
And that was their position.

[00:30:23] Speaker 01:
asserted that position as a defense in the affirmative defenses against the complaint itself.

[00:30:34] Speaker 01:
But the trial judge said to them, you have brought these issues up, and they had to be responded to by the plaintiff, and you put them in play.

[00:30:46] Speaker 01:
And that's precisely why she ruled the way she did.

[00:30:50] Speaker 01:
The other thing is this notion

[00:30:54] Speaker 01:
That they consented to the judgment, of course, then becomes absurd in view of the fact that they are the ones who raised all the issues in a counterclaim, which was held against them.

[00:31:09] Speaker 01:
Now, with respect to the change in the law, starting with the

[00:31:23] Speaker 01:
Mayo case, the creation of the two-step process.

[00:31:28] Speaker 01:
The two-step process has nothing to do with whether or not an invention is abstract or simply an abstract idea.

[00:31:37] Speaker 01:
That has been the law as stated by Judge Justice Thomas from the very beginning in terms of when the distinctions were made as to what was patentable under 101.

[00:31:52] Speaker 01:
So that has not changed.

[00:31:55] Speaker 01:
The two-step process is simply a method by which the court can make a determination as to whether there is something patentable when there is an abstract idea involved.

[00:32:10] Speaker 01:
Because, for instance, in the Mayo case, or even in Alice, the discussion is whether or not the whole invention can be performed within the computer.

[00:32:22] Speaker 01:
Okay?

[00:32:23] Speaker 01:
That clearly is, to me, that clearly is an abstract idea.

[00:32:28] Speaker 01:
It is something that can be performed within a computer.

[00:32:31] Speaker 01:
It can be performed within the human mind.

[00:32:34] Speaker 01:
So this calls to mind the latest suggestion on this issue by the American Institute of American Intellectual Property Law Association, which has recommended or asked for certain changes in 101.

[00:32:52] Speaker 01:
And one of the things that they point out in there is that the two-step process is entirely valid in that it allows the trial court and the appellate court to analyze the claims in view of whether or not there is a patentable invention, starting with

[00:33:20] Speaker 01:
whether or not the idea is abstract.

[00:33:23] Speaker 01:
So as in the case of deer, which is the one that is cited most frequently for the fact that there is an abstract formula which is used and calculated in a computer having to do with the vulcanization of rubber, that algorithm and the use of the computer to digest it and produce results

[00:33:49] Speaker 01:
was considered to be patentable.

[00:33:50] Speaker 01:
Why?

[00:33:51] Speaker 01:
Well, the computer added something to the process.

[00:33:56] Speaker 01:
And it became an automated process for adjusting the temperatures and for the production of vulcanized rubber.

[00:34:07] Speaker 01:
So deer is an example of how the two-step process would be appropriate to determine, number one, is there an abstract

[00:34:19] Speaker 01:
an abstraction that is used in the process.

[00:34:22] Speaker 01:
The answer there is yes.

[00:34:23] Speaker 01:
It's a method.

[00:34:25] Speaker 04:
We need to wrap it up.

[00:34:26] Speaker 04:
One last word.

[00:34:27] Speaker 01:
Oh yes.

[00:34:28] Speaker 01:
One last word.

[00:34:30] Speaker 01:
The issue of preclusion.

[00:34:36] Speaker 01:
I must add that there is no bar whatsoever to issue preclusion in the present case.

[00:34:43] Speaker 01:
And it is upon that that we rely because

[00:34:47] Speaker 01:
all of the evidence that is upon which the judgments were entered in the first case produced the result of liability absent the immunity auction doctor in this case.

[00:35:08] Speaker 04:
Thank you both.

[00:35:11] Speaker 04:
The case is taken under submission.

[00:35:14] Speaker 04:
That concludes this morning's arguments.

[00:35:16] Speaker ?:
All rise.