[00:00:11] Speaker 03: Our next case this morning. [00:00:40] Speaker 03: is number 17-1429, Zeke Investments LLC versus Facebook Inc. [00:00:49] Speaker 03: Mr. Heim. [00:00:52] Speaker 04: Thank you, your honor. [00:00:53] Speaker 04: May it please the court, Michael Heim, for appellant Zeke? [00:00:57] Speaker 04: I will start by road mapping my argument today. [00:01:00] Speaker 04: The district court committed two fundamental errors in its summary judgment ruling on the 101 eligibility issue. [00:01:07] Speaker 04: With respect to step one, [00:01:09] Speaker 04: The district court's characterization ignored the improvements in the claimed invention. [00:01:14] Speaker 02: And in particular, the requirement that allowed each user... Is it fair to say that claims 1 to 3 and 10 and 11 are representative? [00:01:25] Speaker 02: It is, Your Honor. [00:01:25] Speaker 04: Both sides seem to... I believe that's true, Your Honor. [00:01:29] Speaker 04: The district court's characterization ignores the claimed improvements, which is to allow each user to have access control [00:01:36] Speaker 04: over each of its data elements that are stored in the database management system, and secondly, to allow the users to customize the contents of their profile. [00:01:49] Speaker 04: The district court's characterization also did not account for its own findings regarding the purpose of the invention at appendix A11 and 12. [00:01:57] Speaker 04: And then with respect to step two, the district court improperly found that the claims cover purely conventional computer functions [00:02:05] Speaker 04: without citing any evidence. [00:02:08] Speaker 04: And it disregarded the prosecution history evidence that identified the advancement embodied in the claims. [00:02:14] Speaker 04: And that inventive concept was not abstract. [00:02:17] Speaker 04: And it constituted something more than the abstract idea articulated by the district court. [00:02:22] Speaker 04: The district court also failed to properly consider the declaration of ZKey's expert, which was improper on summary judgment. [00:02:31] Speaker 04: I'll start with step two. [00:02:32] Speaker 04: The 204 patent claims do not merely cover computerizing human activity. [00:02:37] Speaker 04: They don't simply claim using a computer to store and share user profile data. [00:02:44] Speaker 04: Instead, the claims involve an inventive step beyond the prior computer-based technology implementations that were described in the background of the specification. [00:02:54] Speaker 02: You argue that the district court didn't account for 204's [00:02:59] Speaker 02: teaching of, quote, electronically associating individual data elements. [00:03:05] Speaker 02: And you cite to the spec which discusses data encryption. [00:03:11] Speaker 02: What evidence suggests that the described encryption is any different from generic encryption or requires something more than a generic computer to accomplish? [00:03:21] Speaker 04: It's the way in which the encryption occurs in this case, Your Honor, which really I think is the focus here. [00:03:27] Speaker 04: The data is stored [00:03:29] Speaker 04: with two different associations. [00:03:31] Speaker 04: Each data element is stored with two different associations. [00:03:35] Speaker 04: One association identifies each data element with a respective registered user. [00:03:41] Speaker 04: And the second association associates each data element with a subset of users that can access that particular data element. [00:03:51] Speaker 04: The encryption occurs on a data element by data element basis. [00:03:56] Speaker 04: It's not an encryption. [00:03:57] Speaker 02: How is that different than a conventional [00:03:58] Speaker 02: relational database. [00:04:01] Speaker 04: Your Honor, there's no evidence in this record. [00:04:03] Speaker 04: I don't know how the encryption would normally occur. [00:04:06] Speaker 04: Based on this record, all we know is that the notion of storing the data with this granular data element by data element basis to allow users to perform their access control on an element by element and user by user basis, that that was not conventional. [00:04:27] Speaker 04: And the reason we know that, Your Honor, is not in the claims. [00:04:31] Speaker 04: Your Honor, it is in the claims. [00:04:33] Speaker 04: So claim one requires the data associations. [00:04:37] Speaker 04: Where does it use the word granular? [00:04:39] Speaker 04: The claims don't use the word granular, do they? [00:04:41] Speaker 04: The claims don't use the word granular. [00:04:44] Speaker 04: So first of all, claim one requires that the associations occur on a data element basis. [00:04:50] Speaker 04: Claim two then requires that the user selectively exercises control [00:04:56] Speaker 04: as to whether to grant or deny access to each data element. [00:05:00] Speaker 04: So each user exercises control with respect to granting and denying access on a data element by data element basis. [00:05:10] Speaker 04: That's what's required in the claims. [00:05:12] Speaker 01: I'll tell you, one of the problems I have with your argument is it's a little bit all over the place in the following regard. [00:05:19] Speaker 01: I don't mean that to be as negative as it probably sounded. [00:05:23] Speaker 01: you're arguing this improves computer functionality because it reduces redundant copies of stored data, it has one person that can make the changes, the changes are then throughout, and that this overcomes problems with prior art systems. [00:05:37] Speaker 01: But your patent on its face admits that the prior art already permitted this, it's just that administrators rather than users did it. [00:05:45] Speaker 01: So to the extent that there was any improvement in the computer functionality, the redundancy in the memory issue, [00:05:52] Speaker 01: That was solved by the prior art, because the prior art already allowed for full access control by one person, which changed all copies automatically. [00:06:00] Speaker 01: It's just that that person wasn't the user, it was the administrator. [00:06:03] Speaker 01: And the patent says that expressively. [00:06:04] Speaker 01: I don't remember which column, but it's in there, and I can find it if I need to. [00:06:08] Speaker 01: So you have a lot of arguments about the improvements to the computer functionality. [00:06:12] Speaker 01: The problem is all of those arguments hinge on single access control, and that already existed. [00:06:17] Speaker 01: The only novelty I see [00:06:19] Speaker 01: is putting that control in the hands of the user rather than the administrator. [00:06:23] Speaker 01: And I don't see how that does anything to achieve any of the computer functionality improvements that you otherwise cite. [00:06:29] Speaker 01: So tell me what I'm missing. [00:06:32] Speaker 04: Just to back up for a second, Your Honor, the patent specification talks about really two different buckets of prior computer implementations. [00:06:39] Speaker 04: There's the one that you're identifying, which is the centralized database in the alumni database example. [00:06:44] Speaker 04: And then there's the other one, which is storing the data locally. [00:06:48] Speaker 04: on a user's computer using their applications and then transmitting it electronically to recipients who all store that data in their local databases or their local applications. [00:06:59] Speaker 04: So those are the two buckets of the prior art, the computer-based implementations that existed prior to this invention. [00:07:05] Speaker 04: This invention is trying to take the advantages of both of them and minimize the disadvantages of both of them. [00:07:13] Speaker 01: I'm sorry, what am I missing? [00:07:14] Speaker 01: What is absent? [00:07:16] Speaker 01: From the prior art, the only thing I see absent from the prior art is who? [00:07:21] Speaker 01: User versus administrator. [00:07:22] Speaker 01: I don't see anything else that is absent from the prior art. [00:07:25] Speaker 01: I don't see how that difference makes diddly squat in terms of the improvement of the computer functionality. [00:07:31] Speaker 01: So you better tell me why I'm wrong. [00:07:33] Speaker 04: Yes, Your Honor. [00:07:34] Speaker 04: With respect to the alumni database, the central database example, it does not allow the user control. [00:07:40] Speaker 04: It does not allow any specificity [00:07:42] Speaker 04: with respect to... Correct. [00:07:43] Speaker 01: The administrator has full control. [00:07:45] Speaker 01: The administrator does. [00:07:46] Speaker 01: All of the same changes can be made. [00:07:48] Speaker 01: It's just by a different person. [00:07:49] Speaker 01: It's not the user who authorizes the changes or controls them. [00:07:52] Speaker 01: It's the administrator. [00:07:53] Speaker 01: But all the same changes globally can be made by a single individual. [00:07:58] Speaker 04: The changes are made by the database administrator, but the evidence show that it was typically made on an all or nothing basis. [00:08:05] Speaker 04: So you provide your information to the alumni database, for example, and that's it. [00:08:10] Speaker 04: You're out of the picture. [00:08:12] Speaker 04: You don't have any ability to control on a granular basis which user is going to see which elements of your data. [00:08:18] Speaker 01: See, this isn't my point. [00:08:19] Speaker 01: You're just arguing to me there's a difference between a user and an administrator. [00:08:22] Speaker 01: And once again, I started this by saying I agree with you that that difference exists. [00:08:26] Speaker 01: That's the only point of novelty. [00:08:28] Speaker 01: The problem for me is I don't see how that links up to the improvements in the functioning of the computer that you claim. [00:08:36] Speaker 01: That is where you maybe fall under DDR or Bascom, where you've got some advantages in Endfish. [00:08:42] Speaker 01: where there are some other cases out there that would help you. [00:08:44] Speaker 01: Those are the ones that are linked to technology that clearly improves computer functionality. [00:08:48] Speaker 01: I don't see how your technology does that, given your admission that solo centralized database controlled by an administrator was in the prior art, and when the only advantages for the computer functionality you discuss are reduced redundancy, minimizing memory storage, whatever, whatever, and all of those are achieved by the alumni example. [00:09:10] Speaker 01: I don't disagree that you have a point of novelty, the user. [00:09:13] Speaker 01: I'm just not sure that means anything at all in terms of any improvements to computer functionality, so you therefore don't fall under that umbrella of cases where people got through to 101GATE because of the improvements to the computer. [00:09:27] Speaker 04: Your Honor, with respect to the example that you're talking about, it is true that the database administrator controls that, but it controls it on an all or nothing basis. [00:09:37] Speaker 04: That's what is shown in the background of the invention. [00:09:40] Speaker 04: It's an all or nothing basis. [00:09:41] Speaker 04: There is no ability to control the data elements individually. [00:09:46] Speaker 04: So it's controlled by the user. [00:09:47] Speaker 04: It's not hinged on how you store the data elements with the particular associations. [00:09:53] Speaker 04: Instead, it's based upon this is this person's information, and I'm going to provide access. [00:09:59] Speaker 01: How does the user being in control do anything to reduce redundancy [00:10:05] Speaker 01: decrease the amount of memory that it needs to be stored in versus the administrator being in control. [00:10:10] Speaker 04: It's different than that problem. [00:10:12] Speaker 04: This has to do with the user's ability to control what happens. [00:10:15] Speaker 01: Okay, but do you understand that in your brief, one of the claims you make is that our technology is like Fastcom, Enfish, and DDR because it improves computer functionality. [00:10:25] Speaker 01: But the only point of novelty you have is the user doing it, not the administrator, and you've just admitted that doesn't improve computer functionality, at least not the ones you identified in your brief. [00:10:35] Speaker 04: Well, we identified the other ones as well, Your Honor. [00:10:37] Speaker 04: I mean, with respect to Bascom, you've mentioned Bascom. [00:10:40] Speaker 04: In Bascom, you filtered internet content on an ISP server while you allowed the users to customize the filtering schemes. [00:10:48] Speaker 04: The invention here is very similar. [00:10:49] Speaker 01: Each user... But that doesn't have anything to do with improving computer functionality. [00:10:53] Speaker 01: I guess I'm trying to focus. [00:10:55] Speaker 01: There are these... Look, 101 is a crazy space legally to try to figure out where each case fits within. [00:11:02] Speaker 01: And you've thrown so many different cases. [00:11:04] Speaker 01: But I do see them in silos. [00:11:06] Speaker 01: I see the improved computer functionality cases in a particular silo. [00:11:11] Speaker 01: I see them all revolving around this is something new that achieves a particular advantage in the way the computer will operate. [00:11:18] Speaker 01: And that's one of the arguments you made. [00:11:20] Speaker 01: And I just don't see that at all in this case. [00:11:22] Speaker 01: So I don't see that this case technically falls within that, given the patent's own admissions and the specification. [00:11:28] Speaker 01: So is there something different about the point of novelty [00:11:32] Speaker 01: involving the user versus an administrator that would help you have an inventive concept under part two that doesn't relate to improvements in computer functioning, because I don't see that. [00:11:44] Speaker 04: When you look at the scheme, there are a plurality of users that are placing their data in a database management system. [00:11:53] Speaker 04: But even though it's being placed in that particular location, in that database that is not local, [00:12:00] Speaker 04: the user still has the ability to control the data. [00:12:03] Speaker 04: That's the critical piece here. [00:12:06] Speaker 01: And when we look at the... And that's changed computer functionality is the thing. [00:12:09] Speaker 01: That's why. [00:12:10] Speaker 01: So is there something inventive about the user having the ability to control it that gets us over a potential abstract ideal problem? [00:12:17] Speaker 04: It's the way the data is stored on an element by element basis. [00:12:19] Speaker 04: In the example of the database administrator doing it, they don't need to store the data on an element by element basis like this. [00:12:28] Speaker 04: The structure is different. [00:12:30] Speaker 04: It's not necessary in that environment. [00:12:31] Speaker 01: It doesn't go to computer functionality. [00:12:32] Speaker 01: So why does the fact that the structure is different result in an inventive concept? [00:12:37] Speaker 01: What I'm asking you is what is inventive about this? [00:12:39] Speaker 04: I understand it's different, but... Your Honor, the structure of the database is defined by the way... Fork with three prongs is different than a fork with four prongs. [00:12:50] Speaker 01: That doesn't make it inventive. [00:12:51] Speaker 01: You understand where I'm going? [00:12:53] Speaker 01: I'm not trying to be rude to you. [00:12:55] Speaker 01: I'm just trying to [00:12:58] Speaker 01: Find a way to understand your argument that I can fit it into some way that you could possibly win. [00:13:05] Speaker 04: Your honor, let me point to the prosecution history. [00:13:08] Speaker 04: Let's look at the prosecution history and what the Patent and Trademark Office said in its Reasons for Allowance. [00:13:13] Speaker 02: But that was issued, the examiner's statement was issued pre-Alice. [00:13:17] Speaker 04: Yes, your honor, that's true, but there are... You didn't mention that in your brief. [00:13:23] Speaker 04: We didn't, I'm sorry, Your Honor, we didn't mention that it was pre, it was decided pre-alice. [00:13:26] Speaker 04: Pre-alice, yeah. [00:13:27] Speaker 04: But, Your Honor, it doesn't matter because what the reasons for allowance are doing, it's identifying what's embedded in the claim. [00:13:34] Speaker 04: And we have rapid litigation that, for example, relied on the reasons for allowance specifically to show that the claim combination was not conventional. [00:13:43] Speaker 04: To the extent that the Patent and Trademark Office says this is what's invented, then I think under the Supreme Court case law, we need to take a look and say, [00:13:51] Speaker 04: is what is inventive an abstract concept or isn't it? [00:13:56] Speaker 04: And with respect to what the Patent and Trademark Office said, it said that in particular that the ability to exercise granular access control on an element by element basis and on a user by user basis was something that had not been done before in the prior art. [00:14:14] Speaker 04: That is our inventive concept. [00:14:15] Speaker 04: So what's left? [00:14:16] Speaker 04: We look at that and we say, is that an abstract concept? [00:14:20] Speaker 04: Or is that something in addition to the abstract concept? [00:14:24] Speaker 04: It is not part of the abstract concept in this case, which was merely storing and sharing data. [00:14:29] Speaker 04: This is a particular way to do that. [00:14:31] Speaker 04: The Patent and Trademark Office said that it was. [00:14:34] Speaker 04: And that's the evidence that is in this case that was ignored by the district court judge, along with the declaration evidence that went into detail about exactly what the improvements were and exactly how those associations were made. [00:14:47] Speaker 04: Unless there's other questions, I will reserve the remainder of my time. [00:14:50] Speaker 03: Okay, Mr. Hamm, we'll give you two minutes. [00:14:56] Speaker ?: Ms. [00:14:56] Speaker 00: Keith? [00:14:56] Speaker 00: Thank you, Your Honors. [00:14:58] Speaker 00: To start backwards, in terms of the file history, I think perhaps one of the most helpful cases is Intellectual Ventures versus Erie Indemnity Company, issued in 2017, which specifically addressed the issue of whether or not something was addressed during prosecution history in saying, [00:15:16] Speaker 00: that the arguments regarding the prosecution history were unpersuasive because, quote, while claims may not have been anticipated or obvious because the prior art did not disclose the criteria, that does not suggest that the idea of selecting the files is not abstract, citing the intellectual ventures versus semantic decision. [00:15:37] Speaker 00: Here, the issue of 101 wasn't raised by the prosecuting attorneys or the examining attorney at all. [00:15:44] Speaker 00: In fact, it was a first office action allowance [00:15:46] Speaker 00: which simply stated that they didn't find anything in the prior art. [00:15:50] Speaker 00: I'm reminded of a quote that I read in a case that said that Einstein, for example, was clearly novel when he came up with E equals MC squared, but that didn't necessarily make it any less abstract as a mathematical formulation. [00:16:03] Speaker 00: So I don't think that moves the needle. [00:16:05] Speaker 00: Here, I also agree with Judge Moore's comments that there is nothing here that improves the functioning of the computer. [00:16:13] Speaker 00: In fact, if we look back to the claims themselves, [00:16:16] Speaker 00: The claims themselves list only generic components. [00:16:20] Speaker 00: The network, cited in column 8, lines 31 through 33 in appendix 85. [00:16:25] Speaker 00: The network device, same citation. [00:16:28] Speaker 00: The profile at column 8, lines 42 through 44 at appendix 85. [00:16:33] Speaker 00: And the database management system itself at column 11, lines 44 through 46 at appendix 87, which tells the reader to use an off-the-shelf Oracle database. [00:16:45] Speaker 00: So these are nothing more than conventional systems and conventional components working in conventional ways. [00:16:52] Speaker 00: In fact, the claim is agnostic as to where that functioning actually occurs. [00:16:57] Speaker 00: We hear a lot about this having to be at a centralized server, or it has to be somewhere remote from the network device, but the claim actually doesn't require that at all. [00:17:05] Speaker 00: The claim simply requires that there be a database management system connected to the network. [00:17:10] Speaker 00: That could just as easily happen on the network device, and therefore no analogy to Bascom [00:17:15] Speaker 00: is appropriate here. [00:17:17] Speaker 00: Instead, the claims merely require that you take profile information and break it down into elements. [00:17:23] Speaker 00: That exact same abstraction was discussed in the content extraction case as well as the cyber phone and Accenture cases. [00:17:32] Speaker 00: IV Capital One Bank also specifically talks about it being abstract to associate a profile with a user and then apply rules to that profile information that's been stored in order to determine who has access to it. [00:17:46] Speaker 00: Sending to different people based on those rules is also specifically contemplated in the cyber phone, Capital One, and Accenture cases. [00:17:54] Speaker 00: And finally, the claims here fail because they never explain how to do any of those associations, as was discussed specifically in the two-way media case that recently was issued by this court. [00:18:05] Speaker 00: Therefore, all we have is a human problem, that of sending different information to different people, being solved in an abstract way without any indications of how. [00:18:16] Speaker 00: or any computer improvement being made to the functioning of the computer itself. [00:18:21] Speaker 00: And unless your honors have any questions, that's my presentation. [00:18:25] Speaker 00: I appreciate it, your honors. [00:18:26] Speaker 00: Thank you. [00:18:35] Speaker 04: I'm just going to go back and revisit the issue about the structure. [00:18:39] Speaker 04: The database structure is dictated by the claims. [00:18:42] Speaker 04: There are associations that are required [00:18:44] Speaker 04: that provide the infrastructure support that allows the user to execute the element by element and user by user access control. [00:18:55] Speaker 04: And then Claim2 defines how those associations are made on a user by user and on an element by element basis. [00:19:03] Speaker 04: Both of those things relate to the structure of that database, just like Endfish [00:19:10] Speaker 04: was focused on the structure of the database. [00:19:12] Speaker 04: This is not a self-referential database, but it still is focused on the structure of the database, how you orient the database, the controls that you place in the hands of the user to allow them to be able to exercise that control. [00:19:25] Speaker 04: Those are things that are not present in the prior art. [00:19:30] Speaker 04: The Patent and Trademark Office in the Reasons for Allowance indicated that that was inventive. [00:19:36] Speaker 04: It's not abstract. [00:19:37] Speaker 04: It's focused on the structure. [00:19:39] Speaker 04: And for that reason, the district court judge in step two improperly found that the claims were purely conventional. [00:19:49] Speaker 04: They're not purely conventional. [00:19:51] Speaker 04: How do we know? [00:19:51] Speaker 04: Look at the intrinsic evidence. [00:19:53] Speaker 04: Look at the declaration. [00:19:55] Speaker 04: The district court did not give either of those any weight. [00:19:58] Speaker 04: The district court did not apply the clear and convincing standard of proof that's required in order to attack an invalidity finding on section 101. [00:20:08] Speaker 04: And for that reason, Your Honor, we respectfully request that the court reverse the district court judge with respect to its finding on patent and eligibility. [00:20:18] Speaker 04: Unless you have any other questions, I will stop. [00:20:20] Speaker 03: Thank you, Mr. Heim. [00:20:21] Speaker 03: Thank both counsel. [00:20:22] Speaker 03: The case is submitted.