[00:00:00] Speaker 01:
21-1908 Travel Century versus Trough.

[00:00:07] Speaker 01:
Mr. White, please proceed.

[00:00:09] Speaker 04:
Good morning.

[00:00:09] Speaker 04:
May I please record Eric White for Appellant David Trough.

[00:00:13] Speaker 04:
After 9-11, Congress mandated that TSA inspect every bag.

[00:00:17] Speaker 04:
Mr. Trough and his company, Safe Skies, devised a method to do so with special locks.

[00:00:23] Speaker 04:
Locks that the patents tell us are special because they can be opened by a single master key across different kinds of locks and different manufacturers.

[00:00:30] Speaker 04:
with an identification structure printed on them that signals to a lucky screener that the master key will open the lock and a prior agreement with TSA to do that.

[00:00:41] Speaker 00:
Excuse me, Judge Shaw here.

[00:00:43] Speaker 00:
Let me ask you a question.

[00:00:45] Speaker 00:
You have here a special lock having a combination lock portion and a master key lock portion.

[00:00:52] Speaker 00:
And I understand from the patent and from your arguments how this arrangement operates.

[00:01:00] Speaker 00:
The difficulty that I'm having is it seems that there's nothing in the claims or in the specification that talks about the internal operation of the lock.

[00:01:13] Speaker 00:
In other words, any changes to how the lock structure operates inside.

[00:01:19] Speaker 00:
And respectfully, it seems to me that that's what our cases require.

[00:01:25] Speaker 00:
And that's the difficulty I'm having, I think, with your side of the case.

[00:01:30] Speaker 04:
Well, a couple of things on that.

[00:01:31] Speaker 04:
First of all, we know, going back to the GDR Holdings case, one of the foundational cases, post-Alice cases from this court, that patents need not be technologically complex to satisfy Alice's scrutiny.

[00:01:44] Speaker 04:
And, you know, this has come up in later cases to the McRoe case.

[00:01:47] Speaker 04:
There are lots of cases where there are technological complexities.

[00:01:50] Speaker 04:
And that doesn't move the needle one way or the other because the focus is whether the patents describe a method that solves a specific problem in the industry.

[00:01:58] Speaker 04:
And that's what happens here.

[00:02:00] Speaker 04:
I mean, the changes to the lock are just one part of the method patent claim.

[00:02:05] Speaker 04:
Although there are changes to the manufacturing process of locks so that you can open them across sort of three dial combinations, four dial combinations, and that, what the patent is really doing here is taking all of those locks and saying you can put an identification structure on them.

[00:02:21] Speaker 04:
You can have a special keyhole for this master key that will open them across all the locks.

[00:02:25] Speaker 04:
And then combined with an agreement with TSA to match up the identification structure with the master key, that solves the process of how do you screen millions of bags

[00:02:35] Speaker 04:
quickly and efficiently.

[00:02:37] Speaker 04:
So if this were simply an apparatus patent, then it would be conceivable that you'd expect to see more diagrams and things showing internal lock mechanism changes.

[00:02:49] Speaker 04:
But it is a method patent.

[00:02:51] Speaker 04:
And it's just simply one part of the method that there is this improved lock.

[00:02:57] Speaker 04:
I don't know if that answers your honor's question.

[00:03:00] Speaker 04:
But I just want to make three simple points

[00:03:03] Speaker 02:
Can I just pursue that a little bit?

[00:03:08] Speaker 02:
One way to look at this, which I'm sure you've thought about, is that if you put aside the question of any internal changes in the lock itself, what you have is almost definitionally abstract.

[00:03:22] Speaker 02:
You have agreements in the marketplace.

[00:03:26] Speaker 02:
with other people who are or entities who are relevant to the use of the thing, right?

[00:03:33] Speaker 02:
Methods of, I forget what our term is, you know, human relations or operations or something.

[00:03:40] Speaker 02:
And then you have, you know, pure display of information.

[00:03:45] Speaker 02:
So the only thing that is at least potentially going on about a change in something

[00:03:55] Speaker 02:
in the physical component, something technological in that sense, is the possibility that there's something different when you use a single master key component with a multiplicity of different combination components.

[00:04:16] Speaker 02:
And I think it is as to that, that as Judge Shaw said, one can find nothing.

[00:04:25] Speaker 02:
either in the claim or in the spec, and this is putting aside whether this is something that you actually argued in your opposition brief to the 101 in the district court, which I think you didn't.

[00:04:41] Speaker 04:
Well, a couple responses to that.

[00:04:43] Speaker 04:
First of all, it is in the patent itself.

[00:04:45] Speaker 04:
If you look at the specifications in the patent,

[00:04:48] Speaker 04:
For instance, in the 537 patent, column four, line 56 to 59, this defines special lock, the term used in the claim by referencing figures one to four collectively, which show a variety of lock configurations, single-dial lock, a three-dial, and a four-dial lock, all of which can be opened by a, quote, master key singular.

[00:05:11] Speaker 04:
It says that that can open any kind of combination lock.

[00:05:13] Speaker 04:
This is made even clearer in the 728 patent,

[00:05:16] Speaker 04:
At column four, line 56 to 59, which defines a special lock as locks having a multiplicity of subtypes, such as different sizes, different manufacturing designs or styles.

[00:05:28] Speaker 04:
And then separately, for the error preservation point, this was argued below.

[00:05:33] Speaker 04:
This case was up on summary judgment.

[00:05:36] Speaker 04:
And Mr. Tropf included many details in his statement of material defeated tracks.

[00:05:40] Speaker 02:
Right.

[00:05:41] Speaker 02:
But I guess I just want to focus on that.

[00:05:44] Speaker 02:
I don't find anything in the place where you as a party needed to make an argument about what you were relying on.

[00:05:53] Speaker 02:
the legal argument, what you were relying on for the asserted inventive concept or even the asserted aspect that takes it out under step one.

[00:06:05] Speaker 02:
And that is in, what is it, 294, docket number 294, opposition to summary judgment on the 101.

[00:06:13] Speaker 02:
You make some reference to this in the rule 56.1 statement, which was a joint statement

[00:06:19] Speaker 02:
for all three of the simultaneous summary judgment motions.

[00:06:24] Speaker 02:
You made some reference to this in your 295 opposition to the prior ARC summary judgment motion, but I don't see any reference at all to this in your 294 opposition to the 101 summary judgment.

[00:06:39] Speaker 04:
Well, in the opposition to the 101 summary judgment, we talked both for step one and step two about the special lock here.

[00:06:47] Speaker 04:
And what the court was construing is the claims and the specifications.

[00:06:52] Speaker 04:
And so the definition of special lock is relevant.

[00:06:55] Speaker 04:
So it was sort of front and center in that analysis.

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And there are several places in the Statement of Dispute and Material Facts where in talking about- I know that the 56.1

[00:07:06] Speaker 02:
statement which you quoted in your reply brief, you do say something about that.

[00:07:12] Speaker 02:
Is there anything in this record that gets at what physical difference there might be if you use a single master key component with different, a number of different combination components, three dials, four dials, or is it just

[00:07:38] Speaker 02:
These operate independently and the claim is use the same one.

[00:07:46] Speaker 04:
There's something that talks about these sort of physical internal working mechanisms of the lock.

[00:07:50] Speaker 04:
Instead it talks about how there are these different kinds of locks.

[00:07:54] Speaker 04:
There was never a master key across those kinds of locks.

[00:07:57] Speaker 04:
And so there are two things going on really as goes to the lock in the claims here.

[00:08:02] Speaker 04:
One is that there is a master key now that works across all these different locks.

[00:08:05] Speaker 04:
And then separately, there is also another change in the physical world where there is an identification structure put across all these locks to signal the use of a master key across these.

[00:08:15] Speaker 04:
A master key didn't exist before.

[00:08:17] Speaker 04:
Travel Sentry CEO Vermeer says this, and this is in the appendix at 2867, that there was no master key before.

[00:08:26] Speaker 04:
We had evidence in the record

[00:08:28] Speaker 04:
from Louterstein who was at TSA in their check baggage department who said that, you know, this simply didn't exist.

[00:08:35] Speaker 04:
What TSA had was a collection of some duplicate keys that it had collected over the years that could open mostly key blocks by several manufacturers.

[00:08:45] Speaker 04:
None of that worked across manufacturers.

[00:08:47] Speaker 04:
None of that worked across different types of locks.

[00:08:50] Speaker 04:
And so there was this guess and check method where TSA, if it had unlimited amount of time to try possible duplicate keys or use lockpicks or something else, could try to open these individual locks.

[00:09:02] Speaker 04:
But a lot of times that didn't work.

[00:09:04] Speaker 04:
And so what TSA was doing was breaking the locks or telling passengers to leave their bags unlocked.

[00:09:10] Speaker 04:
And there was no industry solution to that problem.

[00:09:13] Speaker 04:
We have in the brief, we talk about how a representative from Samsonite was talking about coming up with a sort of temporary lock solution.

[00:09:20] Speaker 04:
So what this did, I mean, there are two things.

[00:09:23] Speaker 04:
It's not just all the mechanics of the individual locks.

[00:09:26] Speaker 04:
It is part of a method claim where you can have this single identification structure across the variety of locks.

[00:09:32] Speaker 04:
And those are changes in the physical world.

[00:09:34] Speaker 04:
This is not simply an attempt to patent a contractual arrangement with TSA or any other luggage screener.

[00:09:41] Speaker 04:
There are a couple things going on there.

[00:09:43] Speaker 04:
And that cross-cuts cases from this court that talk about how

[00:09:48] Speaker 04:
when you have a specific method that solves a specific problem in the industry, that's sufficient to pass alice certainty.

[00:09:56] Speaker 04:
And, you know, this came up, for instance, in the eco-services case, where the issue there was a new method for cleaning jet engines.

[00:10:05] Speaker 04:
And what the court talked about is,

[00:10:07] Speaker 04:
you had an entire new process developed by this patent.

[00:10:10] Speaker 04:
It didn't go into great technological specificity about how these things happen, but it created a whole new process that solved a problem that was not solved by things before that.

[00:10:21] Speaker 04:
And here, you had a whole new problem arise after 9-11.

[00:10:23] Speaker 04:
I mean, it's important for the court to keep in mind what was going on before that.

[00:10:29] Speaker 04:
People would have to, there were sort of sporadic attempts to check people's luggage

[00:10:35] Speaker 04:
And people would have to stay with the bag or something with every sort of time-consuming process.

[00:10:40] Speaker 04:
And it's completely impossible to do that when you have a congressional mandate that now every bag must be checked.

[00:10:45] Speaker 04:
There is a limited amount of time to do that.

[00:10:48] Speaker 04:
And so the benefit here is the comprehensive solution described by the patent that makes some changes to the locks in terms of how they can be opened, how they can be identified, and then couples that with an arrangement with a screening entity to make that whole process come together.

[00:11:04] Speaker 04:
So I just want to emphasize a couple of other things, because this court has talked about industry praise and success.

[00:11:11] Speaker 04:
It's important both at ALICE step one, this is the, for instance, the data engine case and the core wireless case, and at step two, the Bascom case and the Sultan case.

[00:11:21] Speaker 04:
And we think this is the step one case, but it could be decided at either one.

[00:11:25] Speaker 04:
And here, there is just uniform industry praise.

[00:11:28] Speaker 04:
It is almost certain that the luggage that you have now has a lock on it that has a symbol next to it, either a diamond, that's what the travel center uses, or a plane, that's what Mr. Trotz's company uses for their locks, and that signals to TSA to use a particular key to open that lock.

[00:11:44] Speaker 04:
It's not a guess and check method, it is a virtual guarantee then that TSA will be able to take that bag and within a couple seconds open it and they can move on to the next one.

[00:11:54] Speaker 04:
So I don't think there's any kind of issue here over that there are benefits.

[00:11:59] Speaker 04:
It's just that travel sentry has argued that the benefits are irrelevant, but, you know, the Bascom case, Seltzer's case, data engine case, and core wireless case have talked about how the benefits are actually important to the ALICE analysis.

[00:12:12] Speaker 04:
Just another thing, I just want to walk through briefly the particular elements of the claim that I think are at issue here.

[00:12:20] Speaker 04:
Just to emphasize that, you know, these claims contemplate specific physical improvements, unlike a lot of the cases, nearly every case the travel sensor relies on, all of which come from the software context, where you simply take an existing method and say, apply it using a computer.

[00:12:37] Speaker 04:
Here, there's a new physical component, the special lock, which is defined in the specifications as one that works across key, three-dial, four-dial locks.

[00:12:46] Speaker 04:
We open with a single master key.

[00:12:48] Speaker 04:
And that's at column 6, 8 to 15 of the 537 patent.

[00:12:52] Speaker 04:
And then in line 13 to 18, we talk about how these blocks are physically marked to allow a screening agent quickly and accurately to match the lock with the master key and open it without having to break the lock.

[00:13:04] Speaker 04:
And then in line 31 to 37, we talk about the agreement with TSA to implement the process to bring that about.

[00:13:11] Speaker 04:
And one important innovation over the prior planes is that,

[00:13:16] Speaker 04:
Who has this master key?

[00:13:19] Speaker 04:
The 537 patent talks about this at column four, lines 19 to 26, where it talks about how this key that will open this multiplicity of locks.

[00:13:29] Speaker 01:
Well, under your rebuttal time, you want to continue or save it?

[00:13:34] Speaker 04:
I believe that the clock started at 12 minutes.

[00:13:40] Speaker 04:
I'll just make one quick point and then save the rest for rebuttal.

[00:13:45] Speaker 04:
At column four, lines 19 to 26, it talks about the provision of a master key.

[00:13:49] Speaker 04:
And it says that access is going to be exclusive to the manufacturer of the lock and the luggage screening authority.

[00:13:55] Speaker 04:
These other earlier locks that had a duplicate key were simply given to customers and other people.

[00:14:02] Speaker 04:
If you can't have that, you can't realize the benefits of the patent here, which is preventing tampering with your luggage,

[00:14:09] Speaker 04:
if there is just all these extra keys out there.

[00:14:12] Speaker 04:
So that's just sort of one of the many benefits that this court recognized in its 2017 opinion are both your sort of tangible and intangible benefits that the industry has realized.

[00:14:22] Speaker 04:
And I will reserve the remainder of my time for a bottle.

[00:14:25] Speaker 01:
We will give you three minutes for a bottle.

[00:14:27] Speaker 04:
Thank you.

[00:14:28] Speaker 01:
Mr. Prickett.

[00:14:30] Speaker 03:
Morning, Your Honors.

[00:14:32] Speaker 03:
May it please the court.

[00:14:33] Speaker 03:
I'd like to start with the claim language, the representative claim language, which is claim one of the 537 patents.

[00:14:41] Speaker 03:
And there are basically four very simple steps to this claim.

[00:14:48] Speaker 03:
And I'm going to paraphrase much the way Mr. Trapp does in his brief at page 36.

[00:14:56] Speaker 03:
The first step is making available to consumers a special combination block

[00:15:02] Speaker 03:
that has a combination portion and a master key portion.

[00:15:05] Speaker 03:
And it has a logo, also known as an identification structure in the language.

[00:15:11] Speaker 03:
But everyone agrees it's a logo that is recognizable by TSA.

[00:15:16] Speaker 03:
Step two is marketing this lock to consumers so that they understand that the TSA can open the lock.

[00:15:25] Speaker 03:
Step three, the logo signals to the TSA who is screening the bag

[00:15:30] Speaker 03:
that this isn't a lock that can be opened with a master key.

[00:15:35] Speaker 03:
And step four, the TSA looks for the logo and if it decides that this bag needs an eyeball inspection in addition to the x-ray inspection, it can use a master key previously provided to open that lock and then relock it and send it on its way.

[00:15:52] Speaker 01:
Mr. Prickett, is it your argument that the making available paragraph all recites what's in the prior

[00:16:04] Speaker 03:
There is nothing in the prior art that specifically says that, Your Honor, but it certainly is the case that for decades, ops have been made available in the sense that they are purchased by consumers.

[00:16:18] Speaker 03:
But more importantly, Your Honor, each of those steps, whether it's the making available step or the actual luggage screening step, is precisely the type of organizing human activity and economic

[00:16:31] Speaker 02:
behavior that is abstract, and in fact... Unless, unless, Mr. Prickett, the thing you say you're making available is a new, technologically improved physical thing, which I take it, actually, is what Mr. White's argument comes down to, although he wants to rely on the rest.

[00:16:53] Speaker 03:
That is right, Judge Toronto, and in fact, as I think we've made clear in our brief,

[00:16:59] Speaker 03:
there is actually nothing new about these dual access locks in terms of their technology.

[00:17:06] Speaker 03:
And I think that is why in his appeal, Mr. Truff argues for the first time that he created a quote new lock, something that has not been seen before, something that allowed for the first time

[00:17:24] Speaker 03:
Despite the locking mechanism or combination configuration to be opened with a single master key, the problem for Mr. Trapp is, as you identified, Judge Toronto, is that there is nothing in the claim or even in the specification that supports that point.

[00:17:42] Speaker 03:
And also importantly, as I think you identified correctly, Judge Toronto, Mr. Trapp never made that argument below.

[00:17:50] Speaker 03:
If you look at his summary judgment opposition brief and specifically the pages that he cites in his reply brief, there is nothing about inventing a new type of law.

[00:18:01] Speaker 02:
I don't actually think that he cited the 101 summary judgment opposition, those pages in his reply brief.

[00:18:10] Speaker 02:
He cited the prior art summary judgment.

[00:18:14] Speaker 02:
brief plus the 56.1, I don't think he cited, what is it, 1646 at the Joint Appendix, which is the 101 brief.

[00:18:23] Speaker 02:
But never mind for a minute the question of whether the point was preserved.

[00:18:30] Speaker 02:
Why is said in the spec at least,

[00:18:37] Speaker 02:
Not enough for 101 purposes as opposed to enablement purposes or description purposes as an indication that this term special lock has this one to many feature.

[00:18:54] Speaker 02:
Common master lock component, multiple different combination components.

[00:19:03] Speaker 02:
without in any way saying what that means as a physical makeup matter inside this lock.

[00:19:14] Speaker 03:
Your Honor, if I understand your question, I think I would look direct to the court to the specification.

[00:19:20] Speaker 03:
There is simply no language in this specification that supports the notion or even implies it, that it can be opened with a single master key regardless of its locking mechanism or

[00:19:32] Speaker 03:
the new position regardless of its combination configuration.

[00:19:36] Speaker 02:
Let me ask the question this way.

[00:19:40] Speaker 02:
Suppose, just for purposes of this question, that I thought that the specification does indicate that, but doesn't say anything at all about how that is done inside the lock.

[00:19:57] Speaker 02:
It just says, we sure would like a lock, and we have in mind a lock in which there is a common master key component, and that works with a number of different combination components.

[00:20:11] Speaker 02:
Would that be enough for 101 purposes?

[00:20:15] Speaker 03:
No, Your Honor.

[00:20:16] Speaker 03:
And here's the reason.

[00:20:17] Speaker 03:
And the reason is because, in fact, the locks are not

[00:20:23] Speaker 03:
The technology involved with these locks is the same technology that has existed for decades prior to these patent applications.

[00:20:34] Speaker 03:
And the master lock technology is a perfect example of that.

[00:20:38] Speaker 03:
When you have a master lock that is a 1525 lock as one of the models, where it can be opened by a single master key regardless of different locks,

[00:20:50] Speaker 03:
That is precisely the technology that was involved in developing these locks.

[00:20:56] Speaker 03:
And without more in the specification, you simply can't conclude that there's anything other than a conventional dual access lock here.

[00:21:07] Speaker 03:
Let me give a, let me provide a real world example which I think helps explain the point here.

[00:21:14] Speaker 03:
When one moves into a new house or a new apartment, what's the first thing one typically does?

[00:21:19] Speaker 03:
You call a locksmith.

[00:21:21] Speaker 03:
to change the lock.

[00:21:23] Speaker 03:
And when that locksmith arrives, she doesn't take the lock out of the door.

[00:21:28] Speaker 03:
What she will do is she will reconfigure the lock so that it works for a different key.

[00:21:35] Speaker 03:
And that technology has existed for a very long time.

[00:21:38] Speaker 03:
And that same technology would allow that locksmith to go down to the next house

[00:21:42] Speaker 03:
and do the exact same thing for the exact same key.

[00:21:45] Speaker 03:
And the next house, and the next house, and the next house.

[00:21:48] Speaker 03:
It's simply reconfiguring the key portion of the lock.

[00:21:52] Speaker 03:
And you would never do that.

[00:21:53] Speaker 03:
You would never have the same key work on every house in town for obvious reasons.

[00:21:58] Speaker 03:
But in the context of the screening mandate that was issued by Congress, it all of a sudden made sense to have a single master key standard

[00:22:08] Speaker 03:
that would work across multiple manufacturers.

[00:22:12] Speaker 02:
Can I just pursue this?

[00:22:15] Speaker 02:
As I hear what you're saying, you are making an assumption, and this is the assumption that is at the center of my thinking about this.

[00:22:26] Speaker 02:
You're making an assumption that the master key component of one of these dual openable locks is independent physically of

[00:22:38] Speaker 02:
the combination part of it, so that just changing the keying on the key component doesn't have any collateral effects on the combination component.

[00:22:56] Speaker 02:
And therefore, it doesn't matter how many different master keys you have, the combination with the

[00:23:06] Speaker 02:
The combination with the combination component doesn't change at all.

[00:23:11] Speaker 02:
And that, I guess, is the fact that I don't understand what the state of the record is.

[00:23:18] Speaker 03:
OK.

[00:23:18] Speaker 03:
Let me say this, Your Honor.

[00:23:19] Speaker 03:
I'm not sure if it's completely unconnected.

[00:23:22] Speaker 03:
In other words, the master key, mechanically, the master key portion will override a locking mechanism that is also attached to the combination mechanism.

[00:23:33] Speaker 03:
They're not completely detached.

[00:23:36] Speaker 03:
And that technology, whether we're talking about master locks from the 1970s or Safe Skies travel century marked locks from today, that's the case.

[00:23:44] Speaker 03:
The point I'm making, Your Honor, is the technology has never changed between what existed 30 years ago and what is existing today.

[00:23:53] Speaker 03:
The methodology of making these locks work has not changed.

[00:23:59] Speaker 03:
And that's the fact.

[00:24:00] Speaker 03:
And I think you can look to the testimony that Mr. Proffin self-cited in the appendix, which is Mr. Ellis' testimony at the very back of the appendix.

[00:24:12] Speaker 03:
And that's at 2877.

[00:24:19] Speaker 03:
And Mr. Ellis is the Samsonite witness, the first witness to pose in this case back in 2007.

[00:24:26] Speaker 03:
And he was testifying, he was a fact witness who had knowledge about the Samsonite locks.

[00:24:32] Speaker 03:
And he was asked the question, how is this, in effect, how is this travel sentry lock mechanically different from the locks you had before that could be opened with a master key?

[00:24:42] Speaker 03:
And he said it's essentially unchanged.

[00:24:46] Speaker 03:
I think that hopefully answers your question, Justice.

[00:24:56] Speaker 03:
So turning to Alice step two, I think the reason why Trump doesn't get past Alice step one, I think I've made clear, and that is these are abstract claims, perhaps as abstract, if not the most abstract claims this court has been asked to construe since 2014.

[00:25:15] Speaker 03:
And there is no improvement articulated anywhere in the claims, whether it's the representative claim or any other claim.

[00:25:25] Speaker 03:
to the actual lock in the manner in which Trott argues in his brief for the first time on appeal.

[00:25:34] Speaker 03:
And turning to step two, Mr. Trott cannot pass step two because there is no innovative concept here for the same reasons I just articulated in response to Judge Toronto's question.

[00:25:47] Speaker 03:
That is, there is nothing new about these locks.

[00:25:50] Speaker 03:
This is, this methodology, except for

[00:25:54] Speaker 03:
the logistical necessity following the congressional mandate of reducing the number of master keys, the method of screening luggage is exactly the same as the prior method before these patents were applied for.

[00:26:11] Speaker 03:
And indeed, we are not talking about innovation here.

[00:26:16] Speaker 03:
We are talking about a logistical exercise.

[00:26:19] Speaker 03:
And that's what Travel Century did.

[00:26:21] Speaker 03:
It met with the lock and luggage manufacturers around the world and got them to agree to a lock master lock standard.

[00:26:32] Speaker 03:
And that's all this is.

[00:26:34] Speaker 03:
There's no new technology, no new methods, simply having each manufacturer agree that it makes sense to have one key that works on their lock as well as their competitor's lock.

[00:26:47] Speaker 03:
For purposes of airport,

[00:26:49] Speaker 03:
travel on luggage.

[00:26:52] Speaker 03:
And that, Your Honors, we submit, is not an innovative concept at all.

[00:27:02] Speaker 03:
Unless there are questions about the 101 argument, I'm going to turn briefly to the expert report issue.

[00:27:15] Speaker 03:
The district court did not abuse its discretion.

[00:27:18] Speaker 03:
in striking a portion, not the entirety, but a portion of Mr. Lab's expert report.

[00:27:26] Speaker 03:
First of all, there's a very high bar to show abusive discretion, and Mr. Frapp doesn't even address that in his argument.

[00:27:35] Speaker 03:
He does identify a piece of prior art that was submitted in Travel Sentry's summary judgment motion.

[00:27:44] Speaker 03:
That piece of prior art was addressed

[00:27:47] Speaker 03:
only for the issue of obviousness.

[00:27:51] Speaker 03:
And if you look at Mr. Lab's report, the only place he discusses the new patent is in the section of his report that addresses obviousness, not eligibility.

[00:28:03] Speaker 03:
And the only portion of the report that was stricken was eligibility, not obviousness.

[00:28:11] Speaker 03:
He also, in his opposition brief,

[00:28:16] Speaker 03:
expressly stated that he didn't think this report was important, that he could survive summary judgment without this report.

[00:28:24] Speaker 03:
And I think that this report was well within his discretion to take trial by his word.

[00:28:28] Speaker 03:
And there was nothing in his argument below limiting that statement to the burden shifting of summary judgment that he now argues.

[00:28:39] Speaker 03:
There was a prior magistrate judge order.

[00:28:41] Speaker 03:
in the case that precluded any new expert disclosures other than those that addressed new discovery exchange during the 2019 discovery exchange.

[00:28:53] Speaker 03:
And there's nothing in the eligibility section of that report which covers any new discovery.

[00:29:01] Speaker 03:
So the district court was well in its discretion to find that that was an issue.

[00:29:07] Speaker 03:
And finally, ultimately we are

[00:29:11] Speaker 03:
The district court was faced with a question of law.

[00:29:15] Speaker 03:
And the district court was within its discretion to decide that it didn't need the opinion of another to make that legal determination.

[00:29:25] Speaker 03:
And so for those reasons, Your Honor, Your Honors, there was no abuse of discretion below on that particular decision.

[00:29:35] Speaker 03:
I see that my time has expired.

[00:29:37] Speaker 03:
Is there further questions, Your Honor?

[00:29:40] Speaker 02:
Can I just ask in the prior art that was discussed, say the Samsonite or any of the other prior art, was there an instance, does the record tell us whether there was an instance of the same master key opening what were different kinds of combination components?

[00:30:04] Speaker 03:
I'm not aware of anything that would state that, Judge Toronto.

[00:30:08] Speaker 03:
And in fact, I would submit to you that it would never have made any sense competitively for a master lock, master key to work on a Samsonite lock for obvious reasons.

[00:30:19] Speaker 02:
I'm sorry.

[00:30:20] Speaker 02:
I'm sorry.

[00:30:21] Speaker 02:
I don't really care in my question about the manufacturer of the thing.

[00:30:27] Speaker 02:
Let's say, is there any indication that Samsonite, to simplify it, marketed

[00:30:34] Speaker 02:
two different locks, one with a four dial combination, one with a three, and both of them used the same key for the same master key?

[00:30:48] Speaker 03:
I don't believe that was ever done, and I don't know of anything on the record that suggested that, but the technology to accomplish that always exists.

[00:30:55] Speaker 03:
And that's an important point that we make.

[00:30:58] Speaker 03:
Thank you.

[00:30:59] Speaker 03:
Thank you, Your Honor.

[00:31:00] Speaker 01:
Thank you, Council.

[00:31:01] Speaker 01:
Mr. Weiss will give you three minutes for a bottle.

[00:31:05] Speaker 04:
Thank you.

[00:31:05] Speaker 04:
Just a few quick points to emphasize here at the end.

[00:31:09] Speaker 04:
I just want to say at the outset that, you know, this is a tribal sentry's argument here and certainly in its brief sort of confuses the 101 Alice issue here and 102 and 103.

[00:31:19] Speaker 04:
This is not about sort of novelty or non-obviousness.

[00:31:23] Speaker 04:
And that's what a lot of these arguments go to about the differences between this lock and locks before it.

[00:31:29] Speaker 04:
I want to address just quickly to the preservation issue in the 101 briefing.

[00:31:35] Speaker 04:
If you look at pages 1659 and pages 1663 of the appendix, we talk about sort of the physical component here, the special lock.

[00:31:44] Speaker 04:
And the second page on 1663, we talk about how

[00:31:49] Speaker 04:
this differs from earlier, this differs sort of physically from earlier dual access locks.

[00:31:55] Speaker 04:
I don't want to belabor the point.

[00:31:56] Speaker 04:
That point is made much more strongly in the statement of material disputed facts.

[00:32:00] Speaker 04:
It's also made in the labs declaration, where labs talks about the master key opens a special lock regardless of how the user operated lock portion functions.

[00:32:11] Speaker 04:
Also, as I mentioned before,

[00:32:14] Speaker 04:
This is detailed in the patents themselves.

[00:32:16] Speaker 04:
The specifications define special lock that the district court and travel sentry sort of mocked the continuing reference to special lock.

[00:32:24] Speaker 04:
But this court cases say that you have to look to the patent specifications to provide a definition for these these

[00:32:31] Speaker 04:
terms and special lock is defined in the patent.

[00:32:33] Speaker 04:
If you look at column four, line 56 to 59, it defines special lock as working across a variety of these configurations.

[00:32:41] Speaker 02:
Mr. White, I just want to come back to the subject on which I've been harping.

[00:32:46] Speaker 02:
Tell me where on 1663 you think the argument we're now talking about was made.

[00:32:53] Speaker 02:
Well, on 1663... And you also said 1659.

[00:32:57] Speaker 02:
1659, yeah.

[00:32:59] Speaker 02:
I'd like to hear about both of them.

[00:33:02] Speaker 04:
Okay, sure.

[00:33:03] Speaker 04:
1659, we talk about, in the first full paragraph, a travel sentry is wrong when it argues the claims are not directed to any physical components.

[00:33:10] Speaker 04:
It talks about the lock, and it uses the term special lock.

[00:33:14] Speaker 02:
Oh, right.

[00:33:15] Speaker 02:
I'm sorry.

[00:33:15] Speaker 02:
I'm sorry.

[00:33:16] Speaker 02:
But it doesn't say, and by special lock, we mean one that has a single master key with multiple different combinations.

[00:33:25] Speaker 04:
It does not say that directly.

[00:33:27] Speaker 04:
And what about 1663?

[00:33:29] Speaker 04:
It doesn't say it directly at 1663 either.

[00:33:31] Speaker 04:
But it talks about how this is not simply, if this is in the penultimate paragraph,

[00:33:42] Speaker 04:
about how this is not applying a conventional device to dual access locks here.

[00:33:46] Speaker 04:
And that's the extent that the prior art is relevant here.

[00:33:49] Speaker 04:
None of these earlier locks, the 1525 master locks, none of these worked across different locking mechanisms or configurations.

[00:33:57] Speaker 04:
I mean, I'm somewhat surprised that Travel Sentry is now taking the position that the patent doesn't state an innovation over the prior art, at least in terms of the configuration of the lock.

[00:34:07] Speaker 04:
There was an argument over semantics,

[00:34:10] Speaker 04:
I see that my time has expired.

[00:34:12] Speaker 01:
You can finish your final thought.

[00:34:15] Speaker 04:
Perfect, thank you.

[00:34:16] Speaker 04:
There was an argument over semantics over whether locking mechanisms is the same thing as locking configuration.

[00:34:21] Speaker 04:
The travel sentry basically conceded that the patents describe a master key that can work across

[00:34:26] Speaker 04:
locking configurations.

[00:34:28] Speaker 04:
And in fact, locking mechanisms is the way the travel sentry has described different types of combination locks, the way the industry has described it, and the way that Mr. Trupp's patent describes it at Column 5, Lines 58 to 60.

[00:34:41] Speaker 04:
If there are no further questions, we would ask that the court reverse the district court's decision.

[00:34:47] Speaker 01:
Thank you.

[00:34:47] Speaker 01:
To both counsel, the case is submitted.