[00:00:43] Speaker 01:
Good morning, Your Honors.

[00:00:46] Speaker 01:
This Rule 12 decision should be reversed for three separate reasons.

[00:00:51] Speaker 02:
Let me ask you a housekeeping question.

[00:00:53] Speaker 02:
All right.

[00:00:53] Speaker 02:
Independent Claim 1 representative.

[00:00:55] Speaker 01:
Yes, it is.

[00:00:56] Speaker 01:
First, the complaint's factual allegations are enough to satisfy the requirements and overcome Rule 12.

[00:01:06] Speaker 01:
The claims are not directed to an abstract idea because they capture improvements to the process of creating web pages.

[00:01:14] Speaker 02:
And third, LinkedIn failed to present- In the blue brief at 64, you argue that the district court, I'm quoting you, failed to address the improvements provided by the claims or the ordered combinations of claim elements.

[00:01:30] Speaker 02:
In the appendix at 1314, the district court expressly says,

[00:01:35] Speaker 02:
the claims are patent-ineligible, quote, considered a loan or as an ordered combination.

[00:01:41] Speaker 02:
Doesn't that directly conflict with your assertion that you failed to address it?

[00:01:45] Speaker 01:
No, Your Honor, the district court made the statement, but the district court didn't consider the ordered combination.

[00:01:50] Speaker 01:
The district court resolved any questions in LinkedIn's favor, and there's no analysis from the district court on whether the ordered combination

[00:02:01] Speaker 01:
was invented.

[00:02:02] Speaker 00:
Can I just ask you a basic question?

[00:02:04] Speaker 00:
Everybody's talking about the combination of elements and whether or not it was conventional or non-conventional.

[00:02:10] Speaker 00:
What are you referring to when you talk about that?

[00:02:11] Speaker 00:
Are you talking about receiving, establishing, and including limitations?

[00:02:16] Speaker 00:
Or are you talking about some hardware components being combined?

[00:02:21] Speaker 00:
So Your Honor, we're talking about

[00:02:25] Speaker 01:
The steps.

[00:02:26] Speaker 01:
So this is a method claim.

[00:02:28] Speaker 00:
You're talking about receiving, establishing, and including.

[00:02:30] Speaker 00:
Those limitations were not conventional?

[00:02:33] Speaker 01:
Those limitations, in combination to form the specific solution that's rooted in computer technology and that overcame the prior art, which also claimed reciprocal links.

[00:02:48] Speaker 01:
They're not claiming reciprocal links.

[00:02:49] Speaker 02:
What's the new use that you claim the asserted claims disclosed?

[00:02:54] Speaker 01:
It's a new method.

[00:02:56] Speaker 02:
whereby wait a minute 42 of the blueprint There is nothing wrong with claiming conventional components because a process may claim a new use of known Components, so I said what's the new you okay?

[00:03:09] Speaker 01:
The new use is the method the use is the method it's the steps the ordered combination of steps where in the where in the

[00:03:23] Speaker 01:
The computer automatically creates reciprocal links, but only after both parties opt in.

[00:03:34] Speaker 01:
And that was not claimed in the prior art.

[00:03:37] Speaker 02:
LinkedIn contends that the asserted claims are merely taking conventional computer components and adding them to well-known business practices.

[00:03:48] Speaker 02:
How is that incorrect?

[00:03:50] Speaker 01:
Your Honor, first of all,

[00:03:52] Speaker 01:
we're focused on the combination of the steps.

[00:03:55] Speaker 00:
And I believe there wasn't a... Can you tell me about what... I'm still having a hard time understanding if the steps are individually known in the art or routine or conventional, and you keep using the frame, the ordered combination of those elements of the steps, the ordered combination of you've got receiving, receiving, establishing, including, including.

[00:04:17] Speaker 01:
Okay.

[00:04:19] Speaker 01:
Thank you, Your Honor.

[00:04:20] Speaker 01:
First of all,

[00:04:21] Speaker 01:
The step requiring both users to provide an opt-in, that distinguishes over the prior art.

[00:04:27] Speaker 01:
The prior art to horsemen had both opt-ins, and the prior art to horsemen said there didn't need to be any intervention from the user.

[00:04:37] Speaker 01:
And this one requires it, which prevents undesirable links.

[00:04:40] Speaker 00:
Next.

[00:04:40] Speaker 00:
So how is that related to the ordered combination was not committed?

[00:04:43] Speaker 01:
There are separate reasons, Your Honor.

[00:04:46] Speaker 01:
The steps have limitations in them, which are

[00:04:51] Speaker 01:
more than just a conventional recitation.

[00:04:54] Speaker 01:
And the ordered combination of steps, Your Honor, is definitely more, because it's a new way of creating reciprocal links.

[00:05:04] Speaker 00:
What's the new way?

[00:05:05] Speaker 01:
Your Honor, at this point, when we're having to wade into what the claims show, we're wading into the facts.

[00:05:12] Speaker 01:
And these are the facts that are supposed to be resolved in our favor on a Rule 12 motion.

[00:05:18] Speaker 02:
In the Red Brave, it's 60.

[00:05:20] Speaker 02:
There's a list of evidence that LinkedIn argues is appearing for the first time in your opening break.

[00:05:27] Speaker 02:
Would you take a look at that page and tell me where I can find each item in the record as having appeared below?

[00:05:39] Speaker 01:
Page 60, Your Honor.

[00:05:39] Speaker 02:
Yes.

[00:05:40] Speaker 02:
I'm sure you're familiar with it.

[00:05:43] Speaker 01:
OK.

[00:05:43] Speaker 01:
Yes, I know.

[00:05:51] Speaker 02:
And I would expect that you, Ms.

[00:05:53] Speaker 02:
Eddy, would be prepared to answer that question.

[00:05:54] Speaker 01:
Absolutely.

[00:05:55] Speaker 01:
Thank you, Your Honor.

[00:05:58] Speaker 01:
First of all, the court can take judicial notice of web pages.

[00:06:03] Speaker 01:
And the citations to the web pages in the beginning, that is background information.

[00:06:08] Speaker 02:
Take judicial notice of web pages?

[00:06:11] Speaker 02:
What case is that?

[00:06:13] Speaker 02:
And what's the foundation for each of those web pages?

[00:06:16] Speaker 02:
When, where, why, who, what, how?

[00:06:19] Speaker 01:
Their presented genre is background information, and you can ignore them if you like.

[00:06:27] Speaker 01:
However, the patent to Ross, the patent to Ross is the DDR holdings patent, and that patent is cited on the cover of this patent.

[00:06:39] Speaker 01:
And so it's part of the prosecution history, it's part of the intrinsic record, and therefore it's appropriate to consider on a 112 motion to dismiss under 101.

[00:06:48] Speaker 01:
Secondly, the patent to horsemen, Your Honor.

[00:06:51] Speaker 02:
Was it argued below?

[00:06:52] Speaker 01:
Excuse me?

[00:06:53] Speaker 02:
Was it argued below?

[00:06:55] Speaker 01:
Ross was not argued below.

[00:06:57] Speaker 01:
However, again, these are the facts that support the allegations that are made in the complaint.

[00:07:04] Speaker 01:
And the district court should have resolved those allegations in favor of DeStefano instead of in favor of LinkedIn.

[00:07:11] Speaker 01:
These are just the facts that back them up.

[00:07:13] Speaker 00:
When you say the facts, does your complaint discuss Ross?

[00:07:18] Speaker 01:
Yes, no, Your Honor, the complaint does not discuss Ross, but the complaint discusses the improvements over the prior art at paragraphs 10 and 12.

[00:07:27] Speaker 01:
And this is why Ross was cited as prior art.

[00:07:32] Speaker 02:
In addition- What about Horseman?

[00:07:33] Speaker 02:
Are you going to make exactly the same argument?

[00:07:35] Speaker 01:
No, Your Honor, I'm not going to make the same argument.

[00:07:37] Speaker 01:
Your Honor, Horseman, again, it's on the cover of the patent, and it was distinguished during the prosecution history.

[00:07:43] Speaker 01:
But in addition- Yeah.

[00:07:45] Speaker 01:
Horseman was injected into this Rule 12 record by LinkedIn.

[00:07:51] Speaker 01:
And they put it in the record as supplemental authority when they cited to an office action rejecting the patent, rejecting a follow along patent based on Horseman.

[00:08:02] Speaker 01:
And they said to the court, Your Honor, this office action is instructive.

[00:08:07] Speaker 01:
And so they put Horseman into the record.

[00:08:14] Speaker 02:
In the blue brief at 55, you say that the district court made an improper determination regarding the manner in which the asserted claims improvements actually function.

[00:08:30] Speaker 02:
How is that improper?

[00:08:31] Speaker 01:
The district court.

[00:08:41] Speaker 02:
Improperly determined.

[00:08:44] Speaker 01:
the district court said that the claims were directed to a result.

[00:08:48] Speaker 01:
The claims are not directed to a result.

[00:08:50] Speaker 01:
The claims are directed to a specific and novel method of claiming that result.

[00:08:55] Speaker 02:
That might be inaccurate, but how is it improper?

[00:08:58] Speaker 01:
Because they left out the part that distinguishes the claims and the part that makes the claims survive 101 and for sure 112 because we're looking at a pleadings analysis.

[00:09:12] Speaker 02:
In the blue brief at 33,

[00:09:14] Speaker 02:
you provide what you call specific assertions of patent infringement by LinkedIn by pointing to the appendix at 72 to 89, which are the screenshots of LinkedIn web pages.

[00:09:35] Speaker 02:
How's that not completely conclusory?

[00:09:39] Speaker 01:
Your Honor, under Disc Disease Solutions, when you're analyzing a pleading under Rule 12, you look at the assertions made.

[00:09:49] Speaker 01:
And the allegations made are, one, we own the patent.

[00:09:53] Speaker 01:
And number two, all of the steps of the asserted claim are present in the accused device, which we show in the complaint.

[00:10:02] Speaker 01:
That survives the pleading requirements.

[00:10:05] Speaker 01:
And that follows Iqbal Twombly and Disc Disease.

[00:10:08] Speaker 01:
In addition, this court can follow that for 101 as well, because we can't be expected to guess what type of affirmative defense they're going to raise.

[00:10:22] Speaker 01:
For example, here, how could we know that they were going to assert that the claim was directed to

[00:10:30] Speaker 01:
facilitating cross-marketing relationships when facilitating cross-marketing relationships is not part of the claim.

[00:10:37] Speaker 01:
And this court teaches that when we're looking at what the claim is directed to, we have to focus on the improvement in the claims.

[00:10:45] Speaker 01:
And that is certainly not the improvement.

[00:10:47] Speaker 01:
The improvements are specifically claimed, which is start using one page, one web page, to create these reciprocal links.

[00:11:01] Speaker 01:
and doing it in a method that's different from before.

[00:11:04] Speaker 01:
That difference is specified in how they got around horsemen.

[00:11:17] Speaker 01:
Your Honor, the closest case to this case is DDR holdings.

[00:11:21] Speaker 01:
And it's close because it covers very similar technology because the solutions are rooted in the computer technology.

[00:11:30] Speaker 01:
DDR Holdings, in fact, was the Ross patent that we cited.

[00:11:35] Speaker 01:
That's the same patent.

[00:11:36] Speaker 01:
And it was cited against us during prosecution.

[00:11:39] Speaker 01:
Both DDR and our case are directed to establishing links.

[00:11:44] Speaker 01:
And the DDR Holdings patent shows that if you adopted LinkedIn's overly broad directed to facilitating cross-marketing relationships, that would be incorrect because it would encompass DDR Holdings, which we know is not

[00:12:00] Speaker 01:
Abstract the summary of the invention in the DDR holdings patent is an invention that relates to a new paradigm of co-marketing on the internet so that broad characterization of the abstract of the what the claims directed to is entirely untethered to the claim and to the Improvement that is claimed in the patent

[00:12:30] Speaker 01:
Your Honor, the case should be reversed because under Rule 12, you just consider whether the pleading allegations were specific, and they were.

[00:12:41] Speaker 01:
And the pleading allegations pled facts, and they did.

[00:12:45] Speaker 01:
And you don't go into the analysis of how specific they were.

[00:12:49] Speaker 01:
Under the Supreme Court president, in fact, Gomez, you don't have to anticipate what the affirmative defense will be.

[00:12:59] Speaker 01:
But it also can be reversed under Berkheimer and Atricks, which show that once you get into Alice step two, when you're looking at what the ordered combination is, that's a factual determination.

[00:13:16] Speaker 01:
And LinkedIn presented no facts about what the ordered combination was routine or well understood.

[00:13:25] Speaker 01:
And in addition,

[00:13:28] Speaker 01:
district court needed to resolve that well-understood routine combination inquiry with clear and convincing evidence under eye for eye, which it did not do.

[00:13:42] Speaker 01:
So for both of these reasons, Your Honor, this case can be reversed.

[00:14:14] Speaker 02:
President, you agree to claim one as representative as well?

[00:14:18] Speaker 03:
Yes, Your Honor.

[00:14:22] Speaker 03:
May it please the Court?

[00:14:23] Speaker 03:
If I may, I just wanted to address one issue regarding waiver.

[00:14:26] Speaker 03:
I heard my friend suggest that we somehow injected horsemen into this dispute by submitting a notice of subsequent authority.

[00:14:34] Speaker 03:
That's at appendix 318.

[00:14:36] Speaker 03:
We submitted that notice of subsequent authority to reference a rejection based on 101.

[00:14:41] Speaker 03:
Neither party mentioned horsemen below.

[00:14:44] Speaker 03:
The reference was never submitted to the district court, and no arguments were presented regarding Horseman whatsoever.

[00:14:52] Speaker 03:
Thank you for clarifying.

[00:14:54] Speaker 03:
DiStefano relies primarily on Horseman as the distinction between claim one and the prior art, but that was not at issue below.

[00:15:02] Speaker 03:
At issue below was prior art concerning what a web designer could do as far as programming the system and resulting in cross-links between two web pages.

[00:15:15] Speaker 03:
This Court's jurisprudence under Alice has classified claims really in two categories.

[00:15:20] Speaker 03:
One are claims directed at a specific improvement designed to improve computers as tools or create some other technological innovation.

[00:15:28] Speaker 03:
And another category is the business practice or some fundamental economic practice that uses computers, generic computers, to perform it.

[00:15:37] Speaker 03:
And this case clearly falls in that latter category.

[00:15:41] Speaker 03:
This court has observed a characteristic of cases in that latter category is that they frequently include functional character of claim language.

[00:15:51] Speaker 03:
And that's electric power group case.

[00:15:54] Speaker 00:
This patent... Just to address your friend's argument, which was pretty...

[00:16:00] Speaker 00:
much pervasive is that the ordered combination was not conventional.

[00:16:05] Speaker 00:
That's a repeated assertion on the other side.

[00:16:07] Speaker 00:
So can you just address that?

[00:16:09] Speaker 03:
Yeah.

[00:16:10] Speaker 03:
So Claim 1, which is Appendix 67, describes essentially three steps.

[00:16:16] Speaker 03:
You receive indications to opt into a linking arrangement.

[00:16:18] Speaker 03:
You establish that.

[00:16:21] Speaker 00:
Do you understand the ordered combination issue to be putting those limitations in a certain combination versus

[00:16:30] Speaker 00:
of what the prior art taught?

[00:16:32] Speaker 03:
I don't think so, Your Honor.

[00:16:33] Speaker 03:
I don't think there's anything unique or innovative about the order of the combinations.

[00:16:37] Speaker 03:
It makes sense.

[00:16:38] Speaker 03:
You have to receive indications to opt into an arrangement before that arrangement is established in a database and before the linking arrangement is created.

[00:16:47] Speaker 03:
So we think that the order is simply the logical arrangement.

[00:16:50] Speaker 03:
And this is also what a web designer would do.

[00:16:52] Speaker 03:
So the patent describes the process whereby, in the prior art,

[00:16:56] Speaker 03:
you'd have to pay a web designer to establish these cross-linking relationships between two different websites.

[00:17:03] Speaker 03:
And to do that, you often have contractual relationships showing that the two parties agree to enter into this.

[00:17:12] Speaker 03:
So that's the equivalent of two parties opting into a linking arrangement.

[00:17:16] Speaker 03:
And the contract itself is a record of the arrangement, just as establishing that

[00:17:22] Speaker 03:
the arrangement of a database as a record.

[00:17:24] Speaker 03:
And then finally, the implementation of adding links to the web pages.

[00:17:27] Speaker 03:
There's no dispute that that was done in the prior art.

[00:17:30] Speaker 03:
That's what the patent describes as web designers having done in the past.

[00:17:36] Speaker 03:
So we really think this is just the automation of that process without any implementation details whatsoever.

[00:17:42] Speaker 03:
There's no description whatsoever in the record about how this process is any different from that.

[00:17:49] Speaker 03:
And so this case is a lot like OIP Technologies, where there was a prior manual process of doing price optimization, and then the patent claimed automating that procedure.

[00:18:00] Speaker 03:
And the court held that was not enough to render the patent claims patent eligible.

[00:18:05] Speaker 03:
It's also like the credit acceptance court case.

[00:18:07] Speaker 03:
And that's when you had a manual process for developing auto loans.

[00:18:11] Speaker 03:
And the opinion described that as manual, laborious, and iterative.

[00:18:17] Speaker 03:
And there was the idea to automate that.

[00:18:19] Speaker 03:
And that was not enough to render the patent eligible in that case.

[00:18:23] Speaker 03:
There was a case called VideoShare Technologies.

[00:18:25] Speaker 03:
And that was a district court case that was affirmed by this court.

[00:18:27] Speaker 03:
in our Rule 36 judgment, so it's not presidential.

[00:18:30] Speaker 03:
But there, the claims described automating the process of manually coding in links to videos.

[00:18:37] Speaker 03:
That's very similar to this case.

[00:18:38] Speaker 03:
And the fact that you're automating something without any implementation details, we think, cannot render these claims patent-eligible under Section 101.

[00:18:49] Speaker 03:
And the automation of that prior process is exactly what DiStefano said was going on in the district court below.

[00:18:57] Speaker 03:
And they repeated that a couple of times.

[00:19:00] Speaker 03:
One is at Appendix 181, and this is in the opposition brief in the district court, they said, as further explained in the 760 patent specification, the claim methods enable web design and cross-linking without requiring that individual to learn HTML or to interact

[00:19:16] Speaker 03:
extensively with a web designer at a website development company.

[00:19:19] Speaker 03:
So the claim innovation that's claimed in the 760 patent is the elimination of a website developer who would do exactly what this claim does.

[00:19:30] Speaker 03:
And the claim never describes how any of these steps are performed.

[00:19:34] Speaker 03:
It's purely functional in nature, which this court has held is a characteristic of claims held ineligible under Section 101.

[00:19:42] Speaker 03:
And DiStefano repeated that idea in the hearing transcript

[00:19:45] Speaker 03:
This is in appendix 228, and this is what DiStefano said.

[00:19:49] Speaker 03:
The fact that you could have paid someone to do something really complicated before, and now an invention makes that process less complicated, doesn't mean it is not patentable.

[00:19:59] Speaker 03:
The fact that somebody knew how to do it before in a really complicated and difficult way.

[00:20:02] Speaker 03:
So they're admitting that the idea here is just automating what was done in the prior art.

[00:20:07] Speaker 03:
And we contend under the case slide I just described, that's not enough to render the patent eligible under section 101.

[00:20:15] Speaker 03:
It's plain that this patent is directed at marketing ideas.

[00:20:20] Speaker 03:
It's replete throughout the specification of the patent.

[00:20:24] Speaker 03:
The patent describes adding links as a marketing activity.

[00:20:27] Speaker 03:
It says, a common way of marketing a website is creating links between web pages.

[00:20:32] Speaker 03:
That's appendix 54, column 2, lines 43 through 47.

[00:20:37] Speaker 03:
It calls links an element for marketing.

[00:20:39] Speaker 03:
That's appendix 55, column 3, 63 through 65.

[00:20:44] Speaker 03:
And it describes the problem that the applicant was facing as marketing problems.

[00:20:50] Speaker 03:
It says, although the use of such banner ads and links is very common, the setting up of such mechanisms is not always easy.

[00:20:57] Speaker 03:
That's appendix 54, column 2, lines 47 through 49.

[00:21:02] Speaker 03:
But the not always easy is not referring to any technical difficulty, because the specification goes on to say, other websites typically do not display banner ads and links for a particular website without contractual arrangements, including payment, which can be difficult for a novice web designer to arrange and expensive to arrange via a website development company.

[00:21:23] Speaker 03:
So it's matchmaking that was the difficulty in the prior that's described in the specification, not any technical problem.

[00:21:29] Speaker 03:
And there's no technical solution proposed here, just functional claiming describing what a web designer did in the prior art.

[00:21:38] Speaker 03:
And the patent describes the solution as a marketing solution.

[00:21:41] Speaker 03:
This is at appendix 55, column 4, lines 20 through 25.

[00:21:45] Speaker 03:
The present invention further relates to an internet-based system for assisting a website designer in establishing an arrangement in order to market the first website at the second website.

[00:21:56] Speaker 03:
So we think it's plain.

[00:21:58] Speaker 02:
We've probably read all this.

[00:21:59] Speaker 03:
OK, maybe I'll move on then.

[00:22:02] Speaker 03:
On step two, it's been conceded that the individual steps are conventional.

[00:22:10] Speaker 03:
And so it's only the word combination.

[00:22:12] Speaker 03:
We think the word combination is merely automating what was done in the prior art.

[00:22:21] Speaker 03:
There's some reference in the specification that this invention somehow saves users from having to learn HTML under this court's case law, including Capital One Financial Court.

[00:22:29] Speaker 03:
Sparing lay persons without technical abilities from having to learn a computer language is not enough to render a patent claim eligible.

[00:22:36] Speaker 02:
That's not a very hard language to learn anyway.

[00:22:38] Speaker 03:
All right.

[00:22:39] Speaker 00:
I think we have your argument.

[00:22:40] Speaker 03:
OK.

[00:22:40] Speaker 03:
I'm happy to submit, Your Honor.

[00:22:43] Speaker 03:
If there's anything on the pleading issues, I'm happy to address those.

[00:22:47] Speaker 03:
Thank you, Your Honor.

[00:22:53] Speaker 01:
Thank you, Your Honors.

[00:22:55] Speaker 01:
We're in a Rule 12 environment.

[00:22:57] Speaker 01:
We're not in a summary judgment environment.

[00:22:59] Speaker 01:
We're in an environment where all allegations should be accepted and granted in favor of the pleading party.

[00:23:07] Speaker 01:
We didn't have a chance to put on this evidence because it's rule 12.

[00:23:11] Speaker 01:
Yet what I hear from opposing counsel is what he believes, what he reads, what he thinks.

[00:23:19] Speaker 01:
And, Your Honors, that's not the standard.

[00:23:22] Speaker 01:
Actually, marketing problems can be solved by technical solutions, which was the DDR case.

[00:23:28] Speaker 01:
In addition,

[00:23:29] Speaker 01:
He says the problem may not be in the specification.

[00:23:34] Speaker 01:
That also doesn't have to be the case.

[00:23:36] Speaker 01:
It just has to be captured by the claims.

[00:23:39] Speaker 01:
And that's the court's cell spin case.

[00:23:41] Speaker 01:
In addition, in electric power, the court talked about how patenting a solution, which is what we're doing rather than a result, patenting a solution is good because it encourages the development of alternative solutions.

[00:24:01] Speaker 01:
One more thing about Horseman.

[00:24:04] Speaker 01:
He said Horseman wasn't interjected.

[00:24:06] Speaker 01:
If you look at appendix page 328, that's where the Patent Office is talking about Horseman and the prior art.

[00:24:12] Speaker 01:
So it most certainly was interjected.

[00:24:15] Speaker 01:
But it shouldn't matter, because Horseman is just the proof that satisfies the allegations that we made.

[00:24:25] Speaker 00:
Thank you.

[00:24:26] Speaker 00:
Thank you, Your Honors.

[00:24:26] Speaker 00:
I thank both sides.

[00:24:28] Speaker 00:
And the case is submitted.

[00:24:29] Speaker 00:
That concludes our proceeding.