[00:00:09] Speaker 01:
a lot of volumes here.

[00:00:12] Speaker 01:
Pardon me?

[00:00:12] Speaker 01:
There's a lot of volumes here.

[00:00:16] Speaker 03:
Good morning, Your Honors.

[00:00:17] Speaker 03:
May it please the Court.

[00:00:20] Speaker 03:
Despite Amaranth's repeated request to save these cases until resolution of the appeal of the District Court's 285 order, the District Court sought to have Amaranth agree to invalidate without a record.

[00:00:32] Speaker 03:
On the same day Amaranth did not agree,

[00:00:34] Speaker 03:
the district court issued a show cause order forcing Amaranth to litigate its claims in an atmosphere where the district court, in its own words, telegraphed its opinion of invalidity.

[00:00:45] Speaker 03:
In the face of this reality, Amaranth still showed that claims four and five, which claim applications running on a network architecture that reduced the load on a network server, making overall processing more efficient

[00:00:58] Speaker 03:
Optimizing response time and avoiding unevenly overloading computers and servers are patent-eligible subject matter under ALICEP II through their inventive concepts of the order combination of a single point of entry, equilibrium, and reflective routing technology as confirmed and supported by the claims, the specification, and the expert declaration of Dr. Valerdi.

[00:01:22] Speaker 03:
Yet, the district court presumed the claims were invalid, which denied the claims their presumption of validity

[00:01:28] Speaker 03:
and led the court to making factual determinations.

[00:01:30] Speaker 00:
Can I just interrupt to make sure I understand?

[00:01:33] Speaker 00:
So this was set back, and you had to deal with claims four and five, which depend on law, right, for ineligibility?

[00:01:42] Speaker 03:
At the end of the day, yes.

[00:01:44] Speaker 03:
Amaranth submitted a status report at ABPX 6906 saying that it intended to assert

[00:01:51] Speaker 00:
claims that either had already been asserted or to add that were not subject to the- Okay, so what it's before the district court then, again, is simply to adjudicate the claims four and five though, right?

[00:02:05] Speaker 03:
At the end of the day?

[00:02:06] Speaker 03:
Yes.

[00:02:08] Speaker 03:
Well, this case?

[00:02:10] Speaker 03:
No, not, no.

[00:02:12] Speaker 03:
So what happened was there was a status report that was submitted on November 29th, 2021 at ACPX 6906.

[00:02:21] Speaker 03:
Amaranth requested that the case continue to be stayed and said that it wants to assert claims that, according to this court's dominoes opinion, because Amaranth had not formally withdrawn them and there were defendants that had counterclaims, in fact, 26 of the 29 cases had counterclaims, the district court was entitled to invalidate.

[00:02:43] Speaker 03:
So Amaranth sought to assert some of those claims

[00:02:48] Speaker 03:
for example claims for whether started again.

[00:02:52] Speaker 02:
I'm really confused about what you're trying to tell us.

[00:02:56] Speaker 02:
We remanded to look at four and five.

[00:03:00] Speaker 02:
Right.

[00:03:02] Speaker 02:
And you wanted to bring in other ones.

[00:03:05] Speaker 02:
Is that what you're trying to tell us.

[00:03:06] Speaker 02:
Yes.

[00:03:07] Speaker 02:
Can we deal with these separately?

[00:03:09] Speaker 00:
But you spent a portion of your brief discussing, arguing about the merits of four and five.

[00:03:14] Speaker 00:
So that's what I was just going to get to, because I thought that was a major part of this case.

[00:03:17] Speaker 03:
So the only, well, I'd like to raise about two and 12.

[00:03:20] Speaker 02:
No, I don't want to talk about two and 12 yet.

[00:03:22] Speaker 02:
I want to talk about four and five.

[00:03:24] Speaker 02:
OK.

[00:03:24] Speaker 02:
Because the district court did not let you have in two and 12, and that's going to be an abuse of discretion center.

[00:03:28] Speaker 02:
Four and five is what we sent back.

[00:03:30] Speaker 02:
And you got up and gave this big pay in to why it's whatever eligible for all these reasons.

[00:03:36] Speaker 02:
Tell me why when we've already found claim one ineligible and all four and five add is field limitations that they're that they are somehow eligible and claim one is not.

[00:03:48] Speaker 03:
So with all due respect they're not just field of use limitations.

[00:03:51] Speaker 03:
You have to look at the claims from one of ordinary skill in the art.

[00:03:54] Speaker 02:
But everything in claim

[00:03:57] Speaker 02:
four is the information management in real-time synchronous communication system in accordance with claim one.

[00:04:04] Speaker 02:
That's ineligible.

[00:04:06] Speaker 03:
Claim one was found ineligible.

[00:04:08] Speaker 02:
So all that language in four, that portion is ineligible.

[00:04:12] Speaker 02:
So in order for claim four to be eligible, the rest of the sentence has to add eligible subject matter.

[00:04:19] Speaker 03:
And it does.

[00:04:19] Speaker 03:
You have to look at the claims from one of our next building and the moving defendants

[00:04:24] Speaker 03:
in claim construction said that a ticketing application had functionality that they do not have.

[00:04:33] Speaker 03:
And their proposed construction, according to them, was case dispositive.

[00:04:38] Speaker 03:
This court should not allow defendants to do what patent owners have continuously told not to do.

[00:04:44] Speaker 03:
You can't take one position for a claim and another for a claim.

[00:04:48] Speaker 02:
Tell me why a hospitality application is eligible when the overall system is not.

[00:04:54] Speaker 03:
So it's not just a hospitality application.

[00:04:59] Speaker 03:
Claim four is for reservation.

[00:05:01] Speaker 03:
It's a reservation application.

[00:05:03] Speaker 03:
And claim five is for a ticketing application.

[00:05:05] Speaker 03:
In the restaurant application context, when a person seeks to reserve a table,

[00:05:13] Speaker 03:
There are all of these elements that have to be considered by the system.

[00:05:19] Speaker 03:
As Dr. Valerdi discussed, the technical problems at paragraphs 51 and 54 to 58 of his declaration.

[00:05:26] Speaker 03:
And in order to be able to look for your reservation, have it go to the backend, have the backend figure out what's available, then send the information back to the front end.

[00:05:36] Speaker 03:
Without overloading the system, it used a single point of entry,

[00:05:42] Speaker 02:
Equilibrium the databases and are you telling me that a computerized reservation system is eligible?

[00:05:49] Speaker 03:
I am telling you that in 1999, which is the date that you have to look at, what existed at the time, how these claims work, and the functionality as we have the viewpoint of one ordinary skill in the art, yes, absolutely.

[00:06:04] Speaker 03:
Think about it this way.

[00:06:05] Speaker 03:
In 1999, if you were on.

[00:06:07] Speaker 02:
I'm not sure why the time period matters.

[00:06:09] Speaker 02:
This is a question of law under Alice and all of those decisions.

[00:06:13] Speaker 02:
Whether Alice had issued or not in 1999 doesn't somehow transform

[00:06:19] Speaker 02:
ineligible subject matter into eligible subject matter because of the time period.

[00:06:24] Speaker 03:
If it's ineligible, it's ineligible no matter when you... Then you're throwing out step two for the event of concept, whether there's something more to the claims than any abstract idea and you have to look at... Well, what's the something more?

[00:06:37] Speaker 03:
The something more is

[00:06:40] Speaker 03:
a combination of the single point of entry, equilibrium, and reflective routing technology.

[00:06:45] Speaker 02:
These claims... What does that mean?

[00:06:46] Speaker 03:
I'm trying to explain to Your Honor.

[00:06:48] Speaker 02:
Well, you've said those words a bunch of times.

[00:06:50] Speaker 02:
Tell me what it means.

[00:06:51] Speaker 03:
So in 1999, if you had your handheld device and you wanted to synchronize it with

[00:06:59] Speaker 03:
computer or the back end you had to physically plug it in one-to-one and there could be no updating and the way that it would update when you plugged it in was it would move the entire day.

[00:07:09] Speaker 02:
Don't tell me how it works, tell me what the inventive concept is.

[00:07:13] Speaker 02:
I know how it works.

[00:07:14] Speaker 03:
But by those elements being there, with the reflective routing, it decreases the load on the network server.

[00:07:22] Speaker 03:
That allowed the server to run better, it optimized it, it would prevent servers and handheld devices that were connected to the server wires and from crashing.

[00:07:34] Speaker 03:
So in the quartz, well first of all, in the quartz plane construction order, which is

[00:07:41] Speaker 03:
Docket number 908 in case 311, CB 1810.

[00:07:48] Speaker 03:
The defendants tried to have the term reflected, incorporated into the construction of synchronized and synchronous.

[00:07:56] Speaker 03:
And the district court rejected that.

[00:07:59] Speaker 03:
So we know just from that claim construction order that reflective routing is not in claim one.

[00:08:05] Speaker 03:
We also know from the specification that the only time reflective routing is even mentioned deals with the restaurant reservation embodiment.

[00:08:14] Speaker 03:
So through claim differentiation, that then also tells us that claim one doesn't include the reflection.

[00:08:22] Speaker 03:
So claim one works differently.

[00:08:25] Speaker 03:
So in claim one,

[00:08:27] Speaker 03:
when there is an update to be synchronized, it would synchronize the entire database.

[00:08:32] Speaker 03:
And then claims four and five realized because of the complexity needed in reservations and ticketing, the system could be overloaded.

[00:08:39] Speaker 03:
You could have duplicate tables or duplicate tickets being sold, which you don't want.

[00:08:45] Speaker 03:
There's even in district court, Amherst Council even mentioned having to sit on the judge's lap because they could order the same ticket and claim five prevents that from happening.

[00:08:54] Speaker 03:
And by using the

[00:08:58] Speaker 03:
claimed applications in four and five, the burden on the network is minimized.

[00:09:04] Speaker 03:
That is patent-eligible subject matter.

[00:09:06] Speaker 03:
Cooperative entertainment tells us that when you improve the functioning of the network, it's patent-eligible.

[00:09:14] Speaker 03:
And Your Honor, you have to look at the time period.

[00:09:17] Speaker 03:
Berkheimer says, whether something is routine, conventional, or well understood to those of ordinary skill in the art, is a question of fact.

[00:09:24] Speaker 03:
You can't use today's technology to think about what improves technology.

[00:09:30] Speaker 00:
Just to help me follow your argument, can you tell me in the spec where the spec differentiates the reservation and the ticketing applications and where it talks about them?

[00:09:43] Speaker 03:
So the spec specifically talks about the reservations at

[00:09:47] Speaker 03:
Column two, lines 42 to 43.

[00:09:49] Speaker 03:
There's more detail at column five, starting at, if you want specifically, for the reflective technology, column five, line 34 to 40, and column 12, lines 51 to 56.

[00:10:03] Speaker 03:
Now, to you and me looking at this, this might not mean much.

[00:10:07] Speaker 00:
So everything you've just cited, which is really quite not that many lines to read,

[00:10:13] Speaker 00:
That's what you're saying is the difference that why this is this is your technological advance that was associated with the ticketing application and the reservation application Didn't go beyond claim one so for the combination of the three element is the

[00:10:29] Speaker 03:
It starts at column five, about line 17, all the way to line 40.

[00:10:34] Speaker 03:
But again, to you judges up there, to me as an attorney, to all the attorneys and people sitting in the room, these claims don't look like much.

[00:10:42] Speaker 03:
But you have to look at it from one of ordinary skill in the art.

[00:10:45] Speaker 03:
And Dr. Valerity provided what was one of ordinary skill in the art at paragraph 17 to 19, found at 8PPX 7648.

[00:10:52] Speaker 03:
Dr. Valerity's declaration is unrebutted.

[00:10:58] Speaker 03:
There's been no challenge to it.

[00:11:00] Speaker 03:
We have the defendant saying that he didn't discuss the claims, but then in their response, in their answering brief at page 28, they say Dr. Valerdi has three categories of opinions.

[00:11:11] Speaker 03:
One, how claims four and five differ from claim one, how claims four and five solve technological problems, and three, the purported inventive concepts of claims four and five.

[00:11:22] Speaker 03:
That alone right there confirms the district court got it wrong.

[00:11:27] Speaker 03:
The district court should have looked at the Ashford Declaration, should have looked at the fact in lightness favorable to Amaranth.

[00:11:33] Speaker 00:
It did look at the declaration.

[00:11:35] Speaker 00:
Footnote one of the district court's opinion rejects it because it says it suffers from the same flaw, i.e.

[00:11:42] Speaker 00:
it's not based on the language of the claim.

[00:11:44] Speaker 03:
But that's wrong.

[00:11:45] Speaker 03:
Even the defendants say that Dr. Villarreal discussed it in the three points I just mentioned, where they say that on page 28 of their answering brief.

[00:11:54] Speaker 03:
So if you were to look at paragraphs 50 or 51 to 100, that's all discussions of claims four and five.

[00:12:01] Speaker 03:
More specifically, how the claims solve technological problems at paragraphs 51 and 54 to 58.

[00:12:07] Speaker 03:
The inventive concepts of claim four that I mentioned are at paragraphs 72 to 82.

[00:12:13] Speaker 03:
How claim five overcomes technical problems at paragraphs 53 to 56 and 84 to 85.

[00:12:18] Speaker 03:
Claim five's inventive concepts

[00:12:21] Speaker 03:
are at 53 to 56 and 84 to 85.

[00:12:23] Speaker 03:
And Dr. Valeri discussed the temporal requirements and the pseudocode that he was able to create from the claims and specification for claims four at paragraph 72 to 82 and claim 590 to 100.

[00:12:36] Speaker 03:
He also discussed the problems the prior art had with docketing handles at 81 to 84.

[00:12:41] Speaker 03:
And Your Honors, I'm in my rebuttal time right now, so I'd like to say it unless you have any additional questions for right now.

[00:12:47] Speaker ?:
OK.

[00:12:58] Speaker 01:
Thank you, Your Honors.

[00:12:58] Speaker 01:
May it please the court, Jonathan Franklin, on behalf of all of the defendant appellees.

[00:13:05] Speaker 01:
I'd like to refocus the court.

[00:13:07] Speaker 01:
I think this is not a difficult appeal.

[00:13:10] Speaker 01:
And some of the Your Honor's questions make that clear, I think.

[00:13:15] Speaker 01:
Judge Hughes, the answer is it's correct.

[00:13:17] Speaker 01:
These are field abuse limitations on an unpatentable claim.

[00:13:22] Speaker 01:
Claims four and five do nothing as a district court

[00:13:26] Speaker 01:
found correctly, but add field abuse limitations to a claim one, which this court held in the 2019 Domino's Appeal, was unpatentable.

[00:13:37] Speaker 01:
The language of the claims, which is where the law says one must look for the inventive concepts,

[00:13:44] Speaker 01:
says that claims four and five simply claim the method of claim one, which we now know is unpatentable, as applied to ticketing reservations and ticketing applications, respectively.

[00:13:58] Speaker 01:
And Judge Dyke, you are correct.

[00:14:00] Speaker 01:
The question then is, is there anything inventive about those things that would distinguish the independent claim from which they depend?

[00:14:09] Speaker 01:
And the answer is no, as a matter of law, because they are just field abuse

[00:14:14] Speaker 01:
restrictions.

[00:14:14] Speaker 01:
They just narrow claim one to certain applications.

[00:14:19] Speaker 01:
And going all the way back to Bilski, that does not allow you to find- What about the citations he gave to the specification?

[00:14:26] Speaker 01:
And that's what I was just going to get to, Judge Brust.

[00:14:28] Speaker 01:
All of the citations to the specifications actually support the district court's decisions because they make clear that all of the- the only two things that are actually in the specification that he referred to are single point of entry

[00:14:43] Speaker 01:
and equilibrium.

[00:14:45] Speaker 01:
And if one looks at the specifications, the specification makes clear that those apply, those terms apply to all hospitality applications covered by the invention, not just reservations and ticketing.

[00:14:57] Speaker 01:
And you can see that in column two, lines 31 to 41.

[00:15:04] Speaker 01:
A single point of entry for all hospitality applications to communicate with each other wirelessly has been unavailable.

[00:15:11] Speaker 01:
And then it says,

[00:15:12] Speaker 01:
further down he mentions equilibrium and then it says for example and it lists reservation as an example of that and the same thing you can see on

[00:15:26] Speaker 01:
Column 5, 29 and 36, a single point of entry works to keep all wireless handheld devices and linked webs in sync.

[00:15:34] Speaker 01:
And then it says, for example.

[00:15:36] Speaker 01:
So you end up with the answer to Judge Dyke's question, which is, what is different about these than claim one?

[00:15:46] Speaker 01:
And the answer is nothing.

[00:15:47] Speaker 01:
The baton makes clear that all of the applications it covers involve a single point of entry and equilibrium.

[00:15:56] Speaker 01:
There is actually nothing in the specification that says anything about reflective routing, which is the third thing that he mentioned.

[00:16:03] Speaker 01:
That is in their expert's declaration.

[00:16:06] Speaker 01:
But that is just like this court's decision in Dominos, where the court held that the expert declaration added nothing to the patentability analysis because it

[00:16:19] Speaker 01:
went to unclaimed features.

[00:16:21] Speaker 01:
And there is nothing claimed about reflective routing anywhere in the specification.

[00:16:25] Speaker 01:
So at the end of the day, we have a really quite simple case.

[00:16:31] Speaker 01:
Claims four and five are field abuse restrictions, technological limitations on the

[00:16:39] Speaker 01:
claim one, which we already know is unpatentable.

[00:16:43] Speaker 01:
And I would also point the court to its own decision in the 2019 Domino's appeal, where the court found every dependent claim that it considered to be equally unpatentable as all of the independent claims that it considered.

[00:17:00] Speaker 01:
And many of those dependent claims had much more in them than these ones.

[00:17:06] Speaker 01:
pertinent one that the court looked at would be Claim 5, which simply claims the method of Claim 6, where the method of Claim 1 in which the computing device is a smartphone.

[00:17:21] Speaker 01:
And the court held that was unpatentable just by Claim 1.

[00:17:26] Speaker 01:
So I didn't hear anything on the second issue.

[00:17:30] Speaker 01:
I don't know if the court would like me to discuss the not adding

[00:17:36] Speaker 01:
claims 2 and 12.

[00:17:39] Speaker 01:
That's an abuse of discretion standard.

[00:17:41] Speaker 01:
And we don't think that this court abuses discretion on that either.

[00:17:46] Speaker 01:
So whatever, again, the court's views may be on the first appeal that we just heard, I want to emphasize this appeal is not a difficult one.

[00:17:55] Speaker 01:
They persisted in arguing that simple field of use limitations on an unpatentable claim are themselves somehow rendering

[00:18:04] Speaker 01:
in an inventive concept.

[00:18:06] Speaker 01:
The law is crystal clear that that is not true and the judge's decisions should be affirmed.

[00:18:23] Speaker 03:
I want to start off by saying, under Ninth Circuit law, under Animal Legal Defense Fund versus US Food and Drug Administration, where a district court has made factual determinations, summary judgment is inappropriate.

[00:18:35] Speaker 03:
That's the standard to be applied.

[00:18:36] Speaker 01:
What's the factual?

[00:18:38] Speaker 03:
The district court held that the differences between food ordering and ticketing reservations and reservations are illusory.

[00:18:51] Speaker 03:
In order to make the statement that it's illusory, that's a fact finding.

[00:18:56] Speaker 03:
And if you're going to say that it's not a fact finding, then he's judging the credibility of Dr. Valerdi in his declaration.

[00:19:03] Speaker 03:
And that goes against Supreme Court precedent of Anderson v. Liberty Lobby, which says a district court can't make credibility determinations when deciding summary judgment, and it can't weigh evidence.

[00:19:13] Speaker 03:
Those are jury functions.

[00:19:14] Speaker 03:
Also for the standard for summary judgment, would a reasonable jury fine for the non-movement

[00:19:21] Speaker 03:
based on the record.

[00:19:22] Speaker 03:
Here you have Dr. Valerdi's unrebutted declaration that discusses what the claims mean to one of ordinary skill in the art and how

[00:19:31] Speaker 03:
it has an event of concept.

[00:19:33] Speaker 03:
A reasonable jury can believe that, and fine for Amaranth.

[00:19:36] Speaker 03:
That is sufficient to reverse the district court's decision, vacate it, and remand the district court's opinion in order for the district court to apply the correct burden of proof and law.

[00:19:48] Speaker 00:
And I want to- Something that should be easy, and I should know this, but is the attorney's fees case, did that include fees that related to this particular appeal, or that was all before that?

[00:19:59] Speaker 03:
No, it was as far as I know, since that's not the appeal that I'm dealing with.

[00:20:03] Speaker 03:
That was Dominos.

[00:20:04] Speaker 03:
Claims four and five were never asserted against Dominos.

[00:20:07] Speaker 03:
OK.

[00:20:07] Speaker 03:
So this is different.

[00:20:09] Speaker 03:
So an overarching question in this appeal is, who determines what the language in a patent specification and the claims mean?

[00:20:18] Speaker 03:
You just heard my colleague say that it just mentions routing, but doesn't mention, or sorry, it mentions reflection, but doesn't mention reflective routing.

[00:20:26] Speaker 03:
Well, it doesn't matter what we as attorneys think.

[00:20:28] Speaker 03:
It matters what one of ordinary, skill-in-the-art would know when reading the specification and the claims.

[00:20:35] Speaker 03:
And last, I'd like to end with, in the appellee's briefs, they consistently refer to the claims as method claims.

[00:20:45] Speaker 03:
These are not method claims.

[00:20:47] Speaker 03:
These are system claims.

[00:20:49] Speaker 03:
And the applications are part of the architecture of the system, and they improve

[00:20:56] Speaker 03:
the network by reducing overloading of the system.

[00:21:01] Speaker 03:
And as such, it's patent-eligible subject matter.

[00:21:04] Speaker 03:
Do your honors have any questions?

[00:21:06] Speaker 03:
Okay.

[00:21:06] Speaker 03:
I think we're out of time.

[00:21:07] Speaker 03:
Thank you.

[00:21:08] Speaker 00:
All right.

[00:21:08] Speaker 00:
Thank you, Your Honor.