[00:00:39] Speaker 03:
The next case is Cellspin Soft versus Fitbit et al.

[00:00:45] Speaker 03:
2018, 18, 17, 19, 20, 21, 22, 23, 24, 25, and 26.

[00:00:54] Speaker 03:
Mr. Edmonds, when you're ready.

[00:01:02] Speaker 01:
May it please the Court.

[00:01:06] Speaker 01:
There's nothing abstract about the apparatuses

[00:01:09] Speaker 01:
and methods of using those apparatuses in Self-Spend's patents.

[00:01:13] Speaker 01:
And if you look in particular pages 11 through 22 of Self-Spend's brief, we have specific diagrams to assist the court in understanding each of these concrete steps.

[00:01:27] Speaker 01:
The unconventional mobile application, unconventional combinations, and these technical improvements are specific enough to where this should not be an abstract idea.

[00:01:40] Speaker 01:
Some of the key concepts are that you have an Internet-incapable data capture device, for example, a camera.

[00:01:47] Speaker 01:
You transfer data to an Internet-capable mobile device, such as a mobile phone, but it has to be over a previously established short-range paired connection.

[00:01:59] Speaker 01:
That's done through request response, through polling, or through event notification.

[00:02:04] Speaker 01:
The claims also have that you encrypt the pairing, so you create a trusted device for this intermediate device.

[00:02:10] Speaker 01:
using a cryptographic encryption key in pairing that you cryptographically authenticate.

[00:02:16] Speaker 04:
Just remind me, the patent acknowledges, doesn't it, that Bluetooth was not something it was inventing.

[00:02:23] Speaker 04:
It was, by the time of the filing, around.

[00:02:27] Speaker 04:
And everything that you're now describing is just the way Bluetooth works.

[00:02:31] Speaker 01:
No, Bluetooth was around, but

[00:02:36] Speaker 04:
It's communicating with some other device.

[00:02:40] Speaker 04:
Maybe it's encrypted, maybe it's not, but certainly encryption of stuff was an absolutely conventional way of communicating.

[00:02:51] Speaker 01:
There was nothing conventional about these ways.

[00:02:56] Speaker 01:
There's a dispute between the parties, a factual dispute as to whether there was any event notification.

[00:03:02] Speaker 01:
or polling or request and response over a paired Bluetooth connection.

[00:03:07] Speaker 01:
What was conventional was that, for example, in the Kennedy device, that you just connect, blurt it out, and then disconnect.

[00:03:18] Speaker 01:
Having the paired connection was deemed unconventional, and it's discussed in the prosecution history.

[00:03:23] Speaker 01:
They called it as being unconventional because they thought, well, that would cost too much battery.

[00:03:31] Speaker 01:
cell span part of its invention is part of the battery savings that comes into place now that you're dealing with non-native data.

[00:03:40] Speaker 01:
And non-native data just simply wasn't transferred over Bluetooth connections up to websites.

[00:03:47] Speaker 01:
It just simply wasn't done.

[00:03:48] Speaker 02:
So now you have this... Your argument really is at step two then.

[00:03:52] Speaker 02:
It's not a question of whether

[00:03:53] Speaker 02:
sending data is an abstract idea, but the fact that you're saying this was a novel and unconventional way of effectuating that.

[00:04:03] Speaker 01:
Well, it's both, because under step one, if you have a technical solution, and if you have something that's specific and non-generic enough, then it should pass step one as well.

[00:04:16] Speaker 02:
So what do you say under step one that the patent is directed to?

[00:04:20] Speaker 01:
So it is directed to

[00:04:23] Speaker 01:
And I'll summarize, because we have four different independent claims we're talking about.

[00:04:29] Speaker 01:
So it is directed to transferring data from an internet-incapable data capture device to an internet-capable mobile device over a previously established paired short-range wireless connection through request response, polling, or event notification.

[00:04:47] Speaker 03:
In other words, it's transferring data.

[00:04:49] Speaker 03:
It's transferring data by a means that you didn't invent.

[00:04:56] Speaker 01:
Bluetooth.

[00:04:58] Speaker 01:
The request response pulling an event notification over an already paired Bluetooth connection was invented.

[00:05:04] Speaker 01:
The cryptographic encryption of the connection was invented.

[00:05:11] Speaker 01:
This cryptographic pairing was invented.

[00:05:16] Speaker 01:
The cryptographic authenticating identity mobile device was invented.

[00:05:20] Speaker 02:
And also, I hadn't got to the- So that's why isn't your better argument that the ordered combination of these steps was itself unusual, even if the methodologies or the things that you used to do it were already known?

[00:05:35] Speaker 01:
Well, we certainly made that argument.

[00:05:36] Speaker 01:
If the court deems it the better argument, then the court may certainly do so.

[00:05:41] Speaker 02:
I don't know.

[00:05:41] Speaker 02:
You tell me what your better argument is.

[00:05:43] Speaker 01:
Well, I think both arguments should be sufficient to overcome this ruling.

[00:05:47] Speaker 01:
But I think that they're both solid arguments in accordance with the case law and the facts.

[00:05:53] Speaker 01:
And what I didn't get to was that we have this trusted intermediate device.

[00:05:57] Speaker 01:
And it's translating to HTTP in transit, adding user information, adding the website destination information.

[00:06:06] Speaker 01:
That's another thing that's also been invented.

[00:06:09] Speaker 01:
What it's juxtaposed with the conventional

[00:06:11] Speaker 01:
would be a router, which just simply forwards the information.

[00:06:14] Speaker 04:
But why isn't the right juxtaposition the device like the computer that the previous exercisers used to type in the information into or plug something into that is some device previously was adding all of the necessary transport information, HTTP and others?

[00:06:40] Speaker 04:
Now this is just doing it using

[00:06:44] Speaker 04:
basically the Bluetooth device as a substitute for the computer.

[00:06:47] Speaker 01:
Well, the conventionality would be to have the capture device itself with all this functionality, which uses a lot of battery, which requires a lot of hardware, which makes the capture device expensive,

[00:07:00] Speaker 01:
and also you don't necessarily want all this.

[00:07:02] Speaker 04:
I thought one of the conventional devices was the camera.

[00:07:05] Speaker 04:
It takes a bunch of photos and you pull out the little card and you put the card into a device that's already hooked up one way or the other to the internet.

[00:07:14] Speaker 04:
It really doesn't matter how.

[00:07:16] Speaker 01:
That's another convention is that you use the card.

[00:07:19] Speaker 04:
That's the one that you put the little

[00:07:21] Speaker 04:
photo card into is doing all of this setting up of HTTP and so on that you're claiming here.

[00:07:30] Speaker 04:
So the only thing that's different is that the connection between the camera and the internet is now no longer the computer, but is a Bluetooth enabled.

[00:07:46] Speaker 01:
It is an already paired Bluetooth connection, which has substantial benefits.

[00:07:51] Speaker 01:
And it's something going on over that already paired Bluetooth connection that hadn't gone on before, namely this request response, event notification, and polling.

[00:08:01] Speaker 01:
In addition, the prior archer talking about, it didn't talk about how native data was.

[00:08:11] Speaker 01:
You'd add user or website information at the mobile device.

[00:08:16] Speaker 01:
That's just simply not, these are things that sell spin.

[00:08:20] Speaker 01:
The convention would be that all this would have been done at the capture device, and you wouldn't need to do it.

[00:08:25] Speaker 04:
Well, there'd be one of the conventions, but a different convention is the one that I just described.

[00:08:29] Speaker 01:
Well, the one you described is described in... And I thought that's actually described in the patent.

[00:08:33] Speaker 01:
It is.

[00:08:34] Speaker 04:
You don't have to move from the camera some information by hand or otherwise into a device that's actually connected to the internet.

[00:08:43] Speaker 04:
By router, by DSL line, by whatever.

[00:08:46] Speaker 01:
But the patent doesn't describe that prior art method.

[00:08:49] Speaker 01:
as converting to HTTP in transit, as adding user information in transit, as adding the website information in transit.

[00:08:58] Speaker 01:
And in addition, you're just focusing on the physical connection.

[00:09:02] Speaker 01:
But that still begs the question of the inventiveness and the benefits that flow from that inventiveness of using the already-paired

[00:09:13] Speaker 01:
Bluetooth connection so you know that the device is there.

[00:09:16] Speaker 02:
The physical thing you pull out of the camera can't do the automatic formatting and the other things that you're saying can be done through your system, right?

[00:09:26] Speaker 01:
There's no teaching in the patent that it could do that.

[00:09:30] Speaker 01:
There's no teaching in the patent.

[00:09:31] Speaker 01:
So the baseline we have for conventionality is that the formatting is done on the capture device and that this

[00:09:41] Speaker 01:
The one that's in the specification is essentially a router which is passing along the information, but as we've distinguished, there's a big difference between a router and what's happening here where you're not just passing along native data, you're changing the nature of the data and you're adding, you're changing it to HTTP and you're also adding user and website information.

[00:10:11] Speaker 01:
You know, the one way to look at it is the benefits that flow from these technical improvements.

[00:10:21] Speaker 01:
And one side can say we think that's conventional, one side we can say we think it's not.

[00:10:26] Speaker 01:
What CellSpin has laid out, what the conventionality was.

[00:10:32] Speaker 01:
And here, when you juxtapose the invention with what's conventional, you see that

[00:10:40] Speaker 01:
it's not conventional, and you see all these benefits that flow.

[00:10:44] Speaker 01:
And one error that the district court made was the district court just disregarded the facts that self-spend had, that self-spend had pled, and that's in violation of Berkamer and Aatrix.

[00:10:55] Speaker 01:
And that error alone should be justification for reversal.

[00:10:59] Speaker 01:
The district court should have properly weighed those facts.

[00:11:04] Speaker 01:
She just didn't.

[00:11:04] Speaker 01:
She misread Aatrix.

[00:11:06] Speaker 01:
The district court believed that if

[00:11:10] Speaker 01:
If a benefit wasn't, or if an improvement wasn't called out as a benefit or improvement in specification, then you can't assert that fact in a complaint.

[00:11:18] Speaker 01:
But on a Rule 12, you certainly can, and AHRQ says that you can.

[00:11:23] Speaker 01:
That error alone should require a reversal, so the district court can probably consider all the facts and reweigh.

[00:11:29] Speaker 01:
I'll reserve the rest of my time.

[00:11:31] Speaker 01:
Thank you.

[00:11:32] Speaker 03:
We will hold it for you, Mr. Edmonds.

[00:11:34] Speaker 03:
Mr. Panachowski?

[00:11:39] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:11:42] Speaker 00:
Stanley Pentecosti on behalf of all appellees.

[00:11:44] Speaker 02:
Can we start where he ended up?

[00:11:47] Speaker 02:
Because that's my biggest problem here.

[00:11:49] Speaker 02:
The district court committed some clear legal errors.

[00:11:52] Speaker 02:
I mean, her claim that Berkheimer doesn't apply because this is a motion dismissed and Berkheimer was at the summary judging stage is just kind of silly.

[00:11:59] Speaker 02:
I mean, in fact, it should apply more affirmatively.

[00:12:05] Speaker 02:
the claim that you have to have all the benefits called out in the specification is completely inconsistent with Atrix, which says that you look at the allegations in the complaint and you take them all as true.

[00:12:17] Speaker 02:
So why aren't those two things just enough to say that we should remand here for the proper application of the law?

[00:12:25] Speaker 00:
Your Honor, those alleged errors in the Disha Court's opinion are not enough for a remand here because this court sits to review judgments and not opinions.

[00:12:35] Speaker 00:
And review here is de novo.

[00:12:37] Speaker 00:
And here, Your Honor.

[00:12:38] Speaker 02:
Did you argue to the court that Berkheimer didn't apply because this was a motion to dismiss?

[00:12:44] Speaker 00:
No, Your Honor.

[00:12:44] Speaker 00:
We did not make that argument.

[00:12:47] Speaker 00:
Your Honor, we did not make that argument.

[00:12:49] Speaker 00:
The rule of Berkheimer is an application of Twombly and Iqbal to the 101 context.

[00:12:58] Speaker 04:
Berkheimer is a summary judgment case.

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

[00:13:00] Speaker 04:
Berkheimer is an application.

[00:13:04] Speaker 04:
Yes, Your Honor.

[00:13:07] Speaker 00:
Atrix and Berkheimer stand for the same principle, applying it at different procedural stages of the case, but the principle is the same at summary judgment and at the pleading stage.

[00:13:19] Speaker 00:
Taking Atrix, applying it at the pleading stage, the Supreme Court... So you take all the allegations in the complaint as true?

[00:13:25] Speaker 00:
Yes, Your Honor.

[00:13:26] Speaker 02:
All right.

[00:13:26] Speaker 02:
And in the complaint, they alleged that there were multiple benefits, most specifically that if you have this established connection, one that had never been done before, you actually can simplify the capture device or the camera in this case, right?

[00:13:42] Speaker 00:
No, Your Honor.

[00:13:43] Speaker 00:
What is going on here is that the court must take as true all factual allegations and then determine under Iqbal whether the complaint states a plausible claim for relief.

[00:13:55] Speaker 02:
OK, so that factual allegation is true, that these standard systems were put together in an unconventional way to achieve an unconventional benefit.

[00:14:09] Speaker 02:
Why wouldn't that be enough to at least get passed a motion to dismiss?

[00:14:13] Speaker 00:
Your Honor, for several reasons.

[00:14:14] Speaker 00:
First, that is not a factual allegation.

[00:14:16] Speaker 00:
That is simply applying the conclusory legal label of unconventional to these alleged benefits.

[00:14:23] Speaker 00:
Second, Your Honor.

[00:14:24] Speaker 00:
Iqbal says that the reviewing court in determining whether a claim has been plausibly alleged has to draw on its judicial experience and common sense.

[00:14:32] Speaker 00:
And what we learn from Atrix and Berkheimer is that the court has even more than that in a patent case with a Section 101 issue.

[00:14:40] Speaker 00:
The court has the patent, the specification, and the claims.

[00:14:44] Speaker 00:
And the court has repeatedly taught in Berkheimer, in TLI.

[00:14:49] Speaker 04:
You were listening to Mr. Edmonds, and he recited

[00:14:54] Speaker 04:
four or so specific things of a relatively concrete nature, or relatively specific nature anyway, that he says were unconventional.

[00:15:06] Speaker 04:
Can you address each and every one of those?

[00:15:08] Speaker 04:
Because if he has won, then he gets to win on 12b6, doesn't he?

[00:15:13] Speaker 00:
No, Your Honor.

[00:15:14] Speaker 04:
Simply having... 12c, I think.

[00:15:16] Speaker 04:
Most of these are 12c.

[00:15:17] Speaker 00:
Right.

[00:15:18] Speaker 00:
Your Honor, that is not correct because the

[00:15:20] Speaker 00:
Inventive concept test of Alice is not simply a benefits test.

[00:15:24] Speaker 00:
What you have to do is- I'm sorry.

[00:15:26] Speaker 04:
I'm sorry.

[00:15:26] Speaker 04:
Let me focus it.

[00:15:28] Speaker 00:
Yes, Your Honor.

[00:15:28] Speaker 04:
Put aside benefits.

[00:15:29] Speaker 04:
Talk about specific techniques that he referred to as being claimed here that weren't conventional.

[00:15:39] Speaker 04:
One of them, he used the term ACT, those kinds of things.

[00:15:43] Speaker 04:
Forget about whether they were beneficial.

[00:15:45] Speaker 00:
Right.

[00:15:45] Speaker 04:
Just talk about the specific techniques that he recite.

[00:15:49] Speaker 00:
Right.

[00:15:49] Speaker 00:
Your Honor, none of those specific techniques, whether they be battery savings or using HTTP protocols or using an already paired Bluetooth connection, none of those techniques have been plausibly alleged to be improvements in computer functionality itself.

[00:16:05] Speaker 02:
Well, they assert a two-step, two-device process that they say was never done before.

[00:16:16] Speaker 02:
And then they claim that those

[00:16:18] Speaker 02:
create benefits, like being able to make the capture device smaller, for instance, the camera.

[00:16:24] Speaker 02:
Why wouldn't that be enough?

[00:16:27] Speaker 00:
Your Honor, because you cannot plausibly infer those alleged benefits from the patent, nor, even if you could, are those improvements to computer functionality itself.

[00:16:38] Speaker 00:
When we take a look at the specification, as Berkheimer teaches, in addition to the Court's other cases that Berkheimer...

[00:16:46] Speaker 00:
Yes, Your Honor.

[00:16:47] Speaker 00:
So when we take a look at the amended complaint and we have allegations of battery savings, there's nothing.

[00:16:54] Speaker 04:
I'm going to sound like a broken record.

[00:16:58] Speaker 00:
Sure, Your Honor.

[00:16:58] Speaker 04:
Can you for a minute forget about the benefits and talk about the techniques that are asserted to be unconventional, which maybe have those benefits, but I'm interested in the techniques, not the benefits.

[00:17:10] Speaker 00:
Yes, Your Honor.

[00:17:11] Speaker 00:
So starting with the already paired Bluetooth connection.

[00:17:15] Speaker 00:
There is nothing in the patent that describes using an already paired Bluetooth connection as unconventional.

[00:17:22] Speaker 00:
Even if the amended complaint were to allege that it's never been done before, this court has made clear that simply because something may be alleged to be novel or non-obvious doesn't make it an unconventional improvement to computer functionality that you need to survive ALICE step two at the pleading stage or any other stage.

[00:17:43] Speaker 00:
What we have in the patent, Your Honor, in terms of the description of the already paired Bluetooth connection, you have the order of steps in the claims, where it says you pair the Bluetooth connection, then you transfer data that was acquired after the Bluetooth connection was established.

[00:18:00] Speaker 00:
Alice says you have to search for an inventive concept.

[00:18:03] Speaker 00:
to pass step two.

[00:18:05] Speaker 04:
Does the amended complaint or the specifications say that the pairing of the two devices was unconventional?

[00:18:15] Speaker 00:
Your honor, the amended complaint does use the conclusory label unconventional to describe the already paired Bluetooth connection.

[00:18:24] Speaker 04:
But we need to look at... And then he referred to, Mr. Edmonds referred also to

[00:18:29] Speaker 04:
Polling, event notifications, the use of HTTP transfer protocols.

[00:18:38] Speaker 04:
And your honor, taking a look at all of these.

[00:18:47] Speaker 00:
So the already paired Bluetooth connection, when we look at columns three and four at appendix page 287 of the 794 patent, all we see

[00:18:58] Speaker 00:
is a description of how the Bluetooth protocol works.

[00:19:01] Speaker 00:
And there is no hint whatsoever that there is anything unconventional.

[00:19:08] Speaker 04:
Is there a hint in the amended complaint?

[00:19:11] Speaker 00:
Your Honor, there is a conclusory label in the amended complaint, but there is not a hint in the sense that there is not a plausible factual allegation that is in any way tethered to the claims or specifications.

[00:19:23] Speaker 00:
Alice sets forth a rule where you cannot overcome 101 simply by artful claim drafting.

[00:19:30] Speaker 02:
If Berkheimer and Atricks... It seems like you keep talking about step one, and I think the proper focus here is on step two.

[00:19:39] Speaker 02:
And in step two, they say there's a particular pairing of these conventional devices that accomplishes something that was unconventional.

[00:19:48] Speaker 02:
And that's more like Bascom or Thales.

[00:19:53] Speaker 02:
Whether these patents might be obvious for some other reason, the question is, can 101 do this much heavy lifting for you?

[00:20:00] Speaker 02:
And I'm just not sure it can, the way the claims are recited and from what the complaint says.

[00:20:12] Speaker 00:
Your Honor, you're correct that this is primarily a step two inquiry.

[00:20:16] Speaker 00:
But 101 need not do very much here.

[00:20:19] Speaker 00:
And this court has already done all the work that's needed to decide this case in TLI, electric power, affinity labs.

[00:20:27] Speaker 00:
This case is unlike Bascom, Your Honor,

[00:20:29] Speaker 02:
Because in Bascom, the patent specifically took to... But it's not like we specifically said that the patent had nothing to do with how to combine a camera with a cell phone.

[00:20:42] Speaker 00:
Correct, Your Honor.

[00:20:43] Speaker 02:
And this patent does have something to do with combining the capture device with ultimately the internet, right?

[00:20:52] Speaker 00:
Yes, Your Honor.

[00:20:53] Speaker 00:
And then conducting the search for the inventive concept that's step two,

[00:20:57] Speaker 00:
We look at the patent and we say, what does the patent say is the alleged inventive concept?

[00:21:03] Speaker 00:
And the patent says over and over again, it is to take manual steps in a process.

[00:21:09] Speaker 00:
And using conventional technology, describe the column nine, lines 37 to 40, as pervasive, flexible, and capable enough of achieving the desired task of the system.

[00:21:20] Speaker 00:
So purely functional results-oriented language.

[00:21:22] Speaker 00:
And all that we do is that instead of

[00:21:25] Speaker 00:
unplugging the memory stick from the camera, walking over to a computer, plugging it in, and then typing at a keyboard to upload that data to a website, all that you do is use conventional, pre-existing, routine technologies in order to automate that process.

[00:21:43] Speaker 00:
And this court has said over and over, Your Honor, in the Capital One cases, internet patents, affinity labs, electric power, OIP technologies, Symantec, that

[00:21:54] Speaker 00:
If you simply apply conventional technology to previously manual steps so that the user can save time performing them, that is not an inventive concept.

[00:22:04] Speaker 04:
But you understand, I think, that for current purposes, there's no dispute about the principle that you just articulated.

[00:22:13] Speaker 04:
The question is, how does it apply on this record, which includes these patents and the amended complaint?

[00:22:20] Speaker 04:
So everything here is about the specifics of the complaint, and you keep wanting to raise the level of generality to recite the general principles, which doesn't seem to be very helpful.

[00:22:36] Speaker 00:
So Your Honor, you have to view the amended complaint in the context of the patent.

[00:22:43] Speaker 00:
You cannot simply make allegations out of thin air from which you cannot draw a plausible.

[00:22:50] Speaker 02:
But even the patent itself criticizes the prior art for not establishing this two-step process.

[00:22:56] Speaker 02:
And even if conventional ways were used to do this, but not in the particular way claimed by the patent.

[00:23:04] Speaker 02:
And so the question is, how do you decide what's conventional or what's not conventional?

[00:23:08] Speaker 02:
It's not decided at the level of abstraction.

[00:23:11] Speaker 02:
It's decided based on the underlying facts.

[00:23:15] Speaker 02:
And here, the 12th Court never got into the underlying facts and just decided it all at a top level.

[00:23:22] Speaker 00:
Your Honor, the District Court did address the underlying facts and showed that these... The District Court said, I don't have to because Berkheimer doesn't apply.

[00:23:31] Speaker 00:
Your Honor, the District Court also said,

[00:23:33] Speaker 00:
that these alleged improvements were not tethered to the patents.

[00:23:39] Speaker 00:
And when we look at the amended complaint.

[00:23:41] Speaker 02:
But Atrix makes clear that it doesn't have to be.

[00:23:45] Speaker 02:
As it doesn't have to be called out in the specification, the benefits.

[00:23:49] Speaker 00:
Your Honor, they do not need to be explicitly called out as benefits.

[00:23:53] Speaker 00:
However, you need to be able to look at the amended complaint and the patent, which is incorporated by reference into the amended complaint, and you need to say,

[00:24:02] Speaker 00:
Can we look at all this and draw a plausible inference that there was some unconventional improvement to computer functionality itself, not just improving the speed or efficiency?

[00:24:15] Speaker 00:
But why?

[00:24:15] Speaker 02:
I mean, if you're so sure that you're right, why don't we send it back and say apply the correct law?

[00:24:20] Speaker 02:
I mean, even if you look at her 285 opinion, it's clear that she didn't care about step two.

[00:24:24] Speaker 02:
It was all about step one.

[00:24:26] Speaker 02:
So why don't we just send it back?

[00:24:28] Speaker 02:
And you can make those arguments there.

[00:24:30] Speaker 02:
Under the correct law, under Berkheimer and Atricks, as we have dictated.

[00:24:37] Speaker 00:
Your Honor, the district court did correctly analyze the inventive concept, step avalace in the opinion.

[00:24:43] Speaker 00:
And moreover, even if this Court is dissatisfied with the district court's opinion, review is de novo.

[00:24:49] Speaker 00:
And when this Court applies Atricks and Berkheimer, the correct answer is that there is nothing in the amended complaint or in the patents from which you can plausibly infer

[00:25:00] Speaker 00:
that the inventors did anything other than take previously manual steps in a process, than conventional technologies behaving in conventional ways.

[00:25:11] Speaker 02:
And you're saying that's taking everything they say in the invented complaint as truth.

[00:25:16] Speaker 00:
Yes, Your Honor.

[00:25:17] Speaker 00:
Every factual allegation, you can even take every non-factual allegation as being true when you look at the complaint in isolation.

[00:25:27] Speaker 00:
But then when you apply this court's law and say, are these alleged techniques improvements in computer functionality?

[00:25:34] Speaker 00:
They're not.

[00:25:35] Speaker 00:
It doesn't improve the functioning of Bluetooth.

[00:25:37] Speaker 00:
It doesn't improve the functioning of the digital camera or the mobile device or

[00:25:42] Speaker 00:
any of these other pervasive technologies?

[00:25:48] Speaker 00:
Your Honor, there's no plausible allegation that it does improve the way that they operate together.

[00:25:52] Speaker 00:
All that the patent says, and all that can be plausibly alleged here, is that you're saving the user time in saying that you no longer have to take out the memory stick and plug it in.

[00:26:03] Speaker 00:
You no longer have to go to the keyboard and type things in to upload it.

[00:26:07] Speaker 00:
And all you're doing is using conventional technologies

[00:26:11] Speaker 00:
behaving in their expected way.

[00:26:12] Speaker 00:
And your honor, in terms of the HTTP transfer protocol, there's only one brief reference to that in the specification at column 10, lines 4 to 9 on appendix page 290.

[00:26:26] Speaker 00:
And there, they don't tell you anything about how to implement HTTP here.

[00:26:31] Speaker 00:
They simply say, you can use HTTP or XML.

[00:26:34] Speaker 00:
It doesn't matter.

[00:26:35] Speaker 00:
It's all pervasive, known, and flexible.

[00:26:37] Speaker 00:
And your honor, if I may make one more point about the already paired Bluetooth connection, that was, that technique was described by Selsman's counsel in terms of this timing requirement where you would pair the Bluetooth connection and then you would transfer after required data.

[00:26:56] Speaker 00:
And then Selsman says, you can leave that intact, you don't have to disconnect it.

[00:27:00] Speaker 00:
However, Your Honor, in addition to that not being plausibly alleged as an improvement to computer functionality itself, under this course cases... Well, that's not the patent of statute.

[00:27:09] Speaker 02:
Improvement of computer functionality was one phrasing that we used in Bascom, but that's not the test.

[00:27:15] Speaker 02:
The test is some level of inventiveness, right?

[00:27:18] Speaker 00:
Yes, a sufficient inventive concept that makes the patent about significantly more than the abstract idea.

[00:27:24] Speaker 00:
And Your Honor, that inventive concept

[00:27:26] Speaker 00:
needs to be captured in the claims, and with respect to the idea of leaving the Bluetooth connection paired, that is not captured in the claims at all.

[00:27:35] Speaker 00:
All that the claims say is you pair

[00:27:38] Speaker 00:
and then you transfer data that was acquired after the pairing.

[00:27:42] Speaker 00:
There's no requirement that you then keep that paired Bluetooth connection alive.

[00:27:47] Speaker 00:
Even if it were in the claims, that wouldn't be an improvement to computer functionality that would simply be saying, just leave the lights in the room on when you leave so that they'll already be on when you go back in.

[00:27:57] Speaker 00:
But all that you have is an attempt, just like an electric power and content extraction, to limit the application of this abstract idea

[00:28:06] Speaker 00:
to a particular type of data.

[00:28:08] Speaker 00:
All you're saying is that you pair the Bluetooth connection, then the type of data that you transfer using these conventional technologies acting in conventional ways is simply the data that you acquired after the pairing.

[00:28:20] Speaker 03:
Thank you, counsel.

[00:28:21] Speaker 03:
Your time has expired.

[00:28:25] Speaker 03:
We'll hear some bottle time from Mr. Edmonds.

[00:28:28] Speaker 00:
Thank you, Your Honor.

[00:28:34] Speaker 01:
Your Honor.

[00:28:35] Speaker 01:
Going back to this issue of step two and the order of combination, the district court did not really focus sufficiently on that.

[00:28:45] Speaker 01:
The district court was hung up on, in large part, by the statements and the specification that you could use an ubiquitous cellular phone.

[00:28:57] Speaker 01:
But as the court has correctly pointed out,

[00:29:01] Speaker 01:
As we pointed out, there are aspects of this invention that are unconventional themselves.

[00:29:05] Speaker 04:
Can you go through them again?

[00:29:07] Speaker 01:
Yes.

[00:29:08] Speaker 04:
And they're listed... So, for example, start with paired connection, which Mr. Panachowski says might be original, but claims don't require it, so we can ignore that.

[00:29:20] Speaker 01:
Why is that wrong?

[00:29:21] Speaker 01:
Well, the claims do require it because they require the polling,

[00:29:27] Speaker 01:
or the event notification, or the request and response.

[00:29:30] Speaker 04:
Are those separate from pairing?

[00:29:32] Speaker 01:
They have to be done after the pairing is already established.

[00:29:36] Speaker 01:
They have to be done after.

[00:29:37] Speaker 04:
So polling.

[00:29:39] Speaker 04:
So where is there an allegation that polling was unconventional?

[00:29:46] Speaker 01:
In the complaint, we call that out.

[00:29:48] Speaker 01:
And as far as where the arguments are, we have to.

[00:29:51] Speaker 04:
No, I'm really only interested in the complaint.

[00:29:54] Speaker 04:
OK.

[00:29:55] Speaker 04:
So page and line number.

[00:29:57] Speaker 01:
Sure.

[00:30:02] Speaker 01:
All right.

[00:30:03] Speaker 01:
For example, I'm looking on page, it's appendix 2293.

[00:30:07] Speaker 01:
Yep.

[00:30:08] Speaker 01:
And it says, it's subparagraph E, using event notification, polling, and request return.

[00:30:24] Speaker 01:
communication protocols over an already paired connection have the benefits from an efficient and automated upload system while conserving resources.

[00:30:34] Speaker 04:
Just to be clear, that says it's perfectly consistent with saying relatively new but still old stuff has benefits.

[00:30:45] Speaker 04:
That doesn't say it's unconventional by the time of this patent.

[00:30:50] Speaker 04:
I'm trying to focus on the difference between the techniques and the benefits compared to something super old.

[00:30:57] Speaker 01:
Sure.

[00:30:58] Speaker 01:
So if you look at and really starting at page 22, appendix 2288, this is in the patent, it goes through what's conventional.

[00:31:14] Speaker 01:
And then after it's explained what's conventional,

[00:31:17] Speaker 01:
which includes that you would not have the paired connection before doing this.

[00:31:24] Speaker 01:
And specifically, it talks about Kennedy.

[00:31:27] Speaker 01:
And in Kennedy, and it's referring back to the prosecution history, which is also separately cited, but in Kennedy, you connect, send, disconnect.

[00:31:39] Speaker 01:
You don't have an established paired connection with this polling or event notification or request and response.

[00:31:46] Speaker 01:
Then it goes on, as you get onto pages 2292, it calls out these benefits and improvements.

[00:31:58] Speaker 01:
Actually, it starts at 2291.

[00:32:01] Speaker 01:
The benefits and improvements of these various aspects of the claim.

[00:32:08] Speaker 01:
And then it calls them out as being inventive.

[00:32:11] Speaker 01:
It calls them out as being benefits.

[00:32:12] Speaker 01:
It calls them out as being improvements.

[00:32:15] Speaker 01:
The criticism was, well, that's just conclusory.

[00:32:18] Speaker 01:
Well, what's not conclusory, or what couldn't be called conclusory, is that when you identify what's conventional, you identify what is new and what we deem inventive, and you juxtapose that and say, when you take the inventive aspects here, these are the benefits you get.

[00:32:37] Speaker 01:
And it's not just saving time, as my colleague said.

[00:32:41] Speaker 01:
It's saving battery.

[00:32:43] Speaker 01:
It's leveraging the capabilities

[00:32:45] Speaker 01:
of this intermediate device, and it's conserving not just battery resources, but also other resources.

[00:32:53] Speaker 01:
But we have in our brief, there's a listing, just bullet point, of the unconventional aspects that the court can easily refer to.

[00:33:02] Speaker 01:
And they have the citations in the record for you.

[00:33:07] Speaker 01:
You can give me a page.

[00:33:08] Speaker 01:
Oh, a page in the brief?

[00:33:13] Speaker 01:
It's very easy to find.

[00:33:14] Speaker 01:
It's that section that says unconventional.

[00:33:16] Speaker 01:
We have one section on benefits improvements, one section on unconventional aspects.

[00:33:21] Speaker 01:
And they're all laid out there.

[00:33:22] Speaker 01:
And they have citations to the record.

[00:33:25] Speaker 01:
Part of it comes from juxtaposing during prosecution against Kennedy.

[00:33:31] Speaker 01:
And part of it comes from the complaint itself.

[00:33:34] Speaker 01:
I'll just lastly point out, because we're almost out of time, my colleague says, well,

[00:33:40] Speaker 01:
it's conclusory, it's not plausible, but that's not what the district court found.

[00:33:44] Speaker 01:
What the district court did was the district court erred in refusing to consider these facts.

[00:33:52] Speaker 01:
She didn't find they were un-plausible.

[00:33:54] Speaker 01:
She didn't find that they were too conclusory.

[00:33:58] Speaker 01:
She just misread Berkamer and Atricks.

[00:34:02] Speaker 03:
Thank you, counsel.

[00:34:03] Speaker 03:
We appreciate your argument.

[00:34:05] Speaker 03:
The case is submitted.

[00:34:06] Speaker 01:
Thank you.