[00:00:00] Speaker 01:
Our next case is number 24-1801, Polar Electro versus Santo Oye.

[00:00:08] Speaker 01:
Okay, Mr. Fuga.

[00:00:12] Speaker ?:
Go ahead.

[00:00:12] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:00:15] Speaker 02:
The considered claims are presumed to be patent eligible, and First Beat had the burden and has the burden to prove by clear and convincing evidence that the claims were ineligible.

[00:00:27] Speaker 02:
First Beat did not meet this burden.

[00:00:29] Speaker 02:
The district court, the lower court, instead invalidated the asserted claims on grounds never presented, never argued, never relied upon by any party.

[00:00:41] Speaker 02:
The court analyzed prior art that First Beat never cited and never relied upon.

[00:00:45] Speaker 02:
None of the prior art that was briefed or none of the prior art was briefed by any party.

[00:00:52] Speaker 02:
First Beat admits us.

[00:00:54] Speaker 03:
Instead, or as this court has noted in Estella's opinion, we've had a lot of cases so far in the past 10 years on patent eligibility.

[00:01:05] Speaker 03:
And we've pretty consistently said claims directed to collecting, obtaining information, analyzing that information through calculations or steps that one would go through one's mind

[00:01:22] Speaker 03:
And then finally displaying the results of the analysis of that information is really directed to an abstract idea.

[00:01:32] Speaker 03:
And even if the purported inventors come up with perhaps a new way of analyzing the information or introduces consideration of a different parameter than what had been previously considered in analyzing that information,

[00:01:53] Speaker 03:
perhaps to reach a more accurate result, that's still not good enough because it's all directed to the abstract idea and so therefore cannot be relied upon as being an inventive concept.

[00:02:09] Speaker 03:
So we've seen these kinds of cases many, many times before and could you just speak to why you think your claimed invention is

[00:02:21] Speaker 03:
is really can be differentiated from this line of authority.

[00:02:25] Speaker 02:
Yeah, like that line of authority, when I think of that line of authority, I think of electric power, by collecting, analyzing, and displaying data.

[00:02:32] Speaker 02:
And many other cases.

[00:02:33] Speaker 02:
And many other that have kind of flow from that.

[00:02:37] Speaker 02:
The difference here is that this is an inventive process and improving a process.

[00:02:42] Speaker 02:
What we see in a lot of those cases is effectively a black box where what is being claimed is an end result.

[00:02:50] Speaker 02:
Right?

[00:02:50] Speaker 02:
An end result is something that's more accurate.

[00:02:56] Speaker 02:
Instead, what we have here is the detail specific.

[00:02:59] Speaker 01:
And I know it's not... The sources of the information were conventional and well known.

[00:03:05] Speaker 01:
Heart rate monitors and VO2 max calculation, those were known for decades, right?

[00:03:13] Speaker 02:
utilizing heart rate, VO2 max, existence of VO2 max, and the existence of VO2 max associating with fitness levels was known.

[00:03:24] Speaker 02:
It is how this is used.

[00:03:25] Speaker 02:
Again, this kind of goes to the black box situation, and I know it's not the question that we have in the two-step process, but preemption does underlie this, right?

[00:03:38] Speaker 02:
And that's kind of what we see in a lot of the

[00:03:40] Speaker 02:
the cases that I believe Judge Shen is alluding to is that there's effectively a black box.

[00:03:46] Speaker 01:
How does the claim require that the standard information be used differently?

[00:03:52] Speaker 02:
Well, VO2 max had never been used in this particular way or any particular way.

[00:03:58] Speaker 01:
So if you look at... I'm not understanding what the claim is telling you to do.

[00:04:02] Speaker 01:
It just says use this information.

[00:04:06] Speaker 01:
It doesn't tell you even how to use it.

[00:04:09] Speaker 02:
So so it lays out how to use it and so if I look at claim 21 just on the inside of the Opening brief the blue brief If you look at claim 21 Right there the first well you have a measuring means for measuring the heart rate, but if you look at the calculating Paragraph calculating limitation you first take an energy consumption during you have first have that

[00:04:39] Speaker 02:
the energy consumption reference value.

[00:04:41] Speaker 02:
And that is based on performance parameters.

[00:04:43] Speaker 02:
The only one that is required in this claim is VO2 max.

[00:04:49] Speaker 02:
And you used that, and you effectively chart it.

[00:04:53] Speaker 02:
You take your energy consumption reference value, and it may be helpful to look at figure one in the claim.

[00:05:02] Speaker 02:
Or in the patent, I apologize.

[00:05:05] Speaker 02:
And you effectively chart that.

[00:05:11] Speaker 01:
And it's 103... It tells you how to do it.

[00:05:15] Speaker 01:
It just says calculate an assessment using these parameters.

[00:05:21] Speaker 02:
Well, and then if you go to the end of the claim, right, you have the 103C, which is the VO2 max, which is your energy consumption reference value.

[00:05:30] Speaker 02:
And that associates with energy expenditure max and heart rate max.

[00:05:34] Speaker 02:
So that's, if you're looking at figure one, that's 104.3, I believe.

[00:05:37] Speaker 02:
And then you have a lower level.

[00:05:40] Speaker 02:
which is 104A, and those are substantially linear.

[00:05:43] Speaker 02:
And that's how you calibrate, that's specifically how you calibrate the heart rate monitor.

[00:05:49] Speaker 02:
And then you measure heart rate during exercise, and you base on that calibration where that heart rate is, where it would fall on that calibration curve.

[00:05:59] Speaker 02:
But if you look at, it's in the last paragraph of claim 21, where you have a plurality of calculating parameters,

[00:06:08] Speaker 02:
including the maximum value of energy consumption and a lower value of a person's energy consumption, which is substantially linear.

[00:06:16] Speaker 02:
So that's a calibration of the heart rate monitor.

[00:06:21] Speaker 00:
So what's your argument here that, what's the claim to advance?

[00:06:25] Speaker 00:
Let me ask you that.

[00:06:26] Speaker 02:
The claim to advancement?

[00:06:27] Speaker 02:
Yes.

[00:06:28] Speaker 02:
So it was, the patent lays out the problem, the patent lays out the problem that

[00:06:33] Speaker 02:
prior heart rate monitors when estimating energy expenditure did not take into account fitness of a person.

[00:06:41] Speaker 02:
It's improving heart rate monitor technology by utilizing this energy consumption reference value, the VO2 max, to calibrate the heart rate monitor to improve the process of estimating energy expenditure.

[00:06:58] Speaker 03:
Does claim five require any technology?

[00:07:02] Speaker 02:
When you say technology, do you like it?

[00:07:05] Speaker 03:
Anything.

[00:07:07] Speaker 03:
No, it does not require a... It looks like you've got to measure the person's heart rate, which I assume you could do by just putting your finger on someone's wrist and counting the beats.

[00:07:25] Speaker 03:
And then it's about obtaining an energy consumption reference value.

[00:07:30] Speaker 03:
based on VO2 max, but it's not clear to me that that requires any particular machine.

[00:07:40] Speaker 03:
It just says obtaining the value.

[00:07:43] Speaker 03:
And then the assessment of energy consumption, which I think could just be done with a paper and pencil.

[00:07:53] Speaker 02:
Well, I think we acknowledge that claim five does not necessarily claim a device or claim the heart rate monitor.

[00:07:59] Speaker 02:
It is the method claim and is right.

[00:08:01] Speaker 03:
So, I mean, at the moment, I cannot think of a claim that has survived one on one scrutiny that had zero technology in it.

[00:08:13] Speaker 02:
Well, I mean, I don't think anything has changed in one on one where methods or processes

[00:08:19] Speaker 02:
are no longer patent eligible.

[00:08:21] Speaker 02:
I think the exclusion of... Of course not.

[00:08:23] Speaker 03:
Of course not.

[00:08:24] Speaker 03:
Processes are still patent eligible.

[00:08:26] Speaker 03:
But the question is, is a process claim empty of any technology eligible?

[00:08:35] Speaker 02:
I still believe it's... So this is the improved... This is the method claim of the...

[00:08:40] Speaker 02:
proven in technology, the advancement in technology that would be applied to the heart rate device.

[00:08:46] Speaker 03:
Obviously, in Bilski, the Supreme Court said there's no requirement that a method claim must be machine implemented.

[00:08:53] Speaker 03:
But of course, that non-machine implemented claim was deemed to be an abstract idea.

[00:08:58] Speaker 03:
And I don't think we've ever found a non-machine implemented

[00:09:04] Speaker 03:
process claim to be patent-eligible since Bilski?

[00:09:07] Speaker 03:
So I think... Tell me if I'm wrong.

[00:09:11] Speaker 02:
My understanding is yes, in Exergen.

[00:09:14] Speaker 02:
Exergen was a fairly recent case about an improved process to monitor the body, like we have here, monitor the body, but it was body temperature.

[00:09:23] Speaker 02:
And it was one of the method claims... One of the... And I can give you a site if you'd like, Your Honor.

[00:09:32] Speaker 02:
One of the method claims...

[00:09:34] Speaker 02:
It is at least in our reply brief.

[00:09:38] Speaker 02:
It's not in your blue brief.

[00:09:43] Speaker 02:
If it's not, it is in our reply brief.

[00:09:46] Speaker 02:
I can promise that.

[00:09:47] Speaker 03:
It's a non-correct opinion, right?

[00:09:51] Speaker 03:
Say it again.

[00:09:52] Speaker 03:
It's not a presidential opinion.

[00:09:54] Speaker 03:
That's correct, Your Honor.

[00:09:56] Speaker 02:
That's correct, Your Honor.

[00:09:57] Speaker 02:
But still, even with that, I would say the exclusion of a device does not render the patent claim ineligible.

[00:10:03] Speaker 02:
Deere spoke directly to this, right?

[00:10:07] Speaker 02:
Deere in, right, it's an improved process of effectively taking time or taking temperature to, I went fast, to... It was improving a physical process, how to cure rubber and doing it in a better way.

[00:10:23] Speaker 02:
Sure, and I would argue that this is a physical process of monitoring a human body.

[00:10:27] Speaker 02:
It's very, I mean, it's happening right now.

[00:10:29] Speaker 02:
It's energy expenditure.

[00:10:31] Speaker 02:
And one note before I go,

[00:10:34] Speaker 02:
move on to my role, is that if that is a defect, if that is a defect that affects patent eligibility here, Claim 5 cannot represent Claim 21 or Claim 15 because that heart rate monitor is claimed, right?

[00:10:48] Speaker 02:
This is... It's not claimed in Claim 5.

[00:10:52] Speaker 02:
It's not in Claim 5.

[00:10:54] Speaker 02:
It's not in Claim 5, but Claim 5 cannot represent Claim 21 or Claim 15 if that is a defect, right?

[00:11:01] Speaker 02:
If that is the defect that affects that.

[00:11:03] Speaker 00:
Let me ask you a question before you sit down.

[00:11:06] Speaker 00:
You argue that one of the problems with the summary judgment was the consideration of prior art.

[00:11:17] Speaker 00:
Tell me about that one.

[00:11:20] Speaker 00:
Where did the prior art analysis come in?

[00:11:25] Speaker 02:
Where did it come in in the opinion?

[00:11:28] Speaker 02:
It came in.

[00:11:30] Speaker 02:
paragraphs of effectively laying the land, setting the table for technology as the court understood it.

[00:11:37] Speaker 02:
And which delved deeply into prior art that came from reexaminations, prosecution history, and I don't think we mentioned this, but I believe it's from invalidity contentions, five pieces of prior art.

[00:11:50] Speaker 02:
And then based on that lay of the land, the court found that there was nothing inventive here.

[00:11:56] Speaker 02:
It basically said, and there were factual

[00:12:00] Speaker 02:
There are factual disputes that should have gone to a jury, but there are also factual decisions that were just on their face wrong.

[00:12:06] Speaker 02:
One, that VO2 max and heart rate are interchangeable.

[00:12:09] Speaker 02:
They're not interchangeable.

[00:12:10] Speaker 02:
That is a very important point of the actual claimed invention.

[00:12:17] Speaker 02:
So we also had, Poehler had a, I mean, as a summary judgment, Poehler had- The court looked at the intrinsic record.

[00:12:24] Speaker 00:
The claims looked at the specification

[00:12:28] Speaker 00:
prosecution history, and then you say it went on and looked at and considered prior art, correct?

[00:12:35] Speaker 00:
How did it consider the prior art?

[00:12:38] Speaker 02:
It considered the prior art and assessed what that prior art, as the court understood it, laid out.

[00:12:45] Speaker 01:
Where in the decision did the district court rely on prior art to reach a conclusion?

[00:12:55] Speaker 02:
So if we're looking at

[00:12:57] Speaker 02:
the joint appendix, I mean it is, so starting at the joint appendix, appendix two, which is the factual background, very quickly the judge at appendix...

[00:13:21] Speaker 01:
the prior art, describe the prior art.

[00:13:23] Speaker 01:
Where does he rely on the prior art to reach a conclusion about 101 eligibility?

[00:13:29] Speaker 02:
At appendix 26 is the beginning of step two, where he discusses Dr. Levine, Pollard's expert, who discussed that this was an advancement of the technology.

[00:13:39] Speaker 02:
And if you look at, say, this is an example of appendix 28, he talks about Yemines, he talks about Lebel.

[00:13:47] Speaker 02:
I mean, he effectively

[00:13:51] Speaker 02:
discredits what the patent claimed as inventive and what Dr. Levine claimed as inventive by looking at this prior art.

[00:14:01] Speaker 02:
Again, prior art that was not before it.

[00:14:04] Speaker 02:
The civil litigation is party led.

[00:14:07] Speaker 02:
The polar had no chance to even respond to this, let alone rebut it.

[00:14:13] Speaker 00:
Where does it cite the prior art?

[00:14:16] Speaker 00:
Let's try this again.

[00:14:17] Speaker 00:
Where in the opinion

[00:14:22] Speaker 00:
district court opinion, does it use prior in its analysis of the ALICE test?

[00:14:33] Speaker 02:
If you look at appendix 29, the first, and this is an example because there are five pieces of prior, appendix 29, the first full paragraph, second line says as stated in Morrow, that is a piece of prior, the maximum heart rate is defined, it goes on, and then that last sentence there in that paragraph

[00:14:52] Speaker 02:
The court goes on to say, this calls into question what technological advancement in the 227 patent made when VO2 max can be interchanged and when it has not only been a prominent factor in prior art, but consists of basic physiological characteristics that is a common descriptive variable.

[00:15:08] Speaker 01:
But you're not disputing that VO2 max was used for decades in connection with determining energy consumption.

[00:15:17] Speaker 02:
Well, we are certainly disputing that VO2 max can be interchanged with heart rate.

[00:15:21] Speaker 03:
Are they interrelated or not?

[00:15:24] Speaker 03:
The max heart rate and VO2 max, they are in some ways interrelated.

[00:15:31] Speaker 03:
They are in some ways interrelated.

[00:15:33] Speaker 03:
If we understood, understand the district court when it said interchangeable to mean that they're interrelated, that's not a controversial point.

[00:15:44] Speaker 03:
Maximum heart rate and VO2 max.

[00:15:46] Speaker 02:
Generally, I would say VO2 max, your VO2, not VO2 max, but your VO2 is going up as your heart rate goes up.

[00:15:53] Speaker 02:
But that kind of misses the point here is that you need to fine tune a heart rate monitor

[00:15:58] Speaker 02:
for the fitness of a person, which relies on VO2 max here.

[00:16:04] Speaker 02:
That's not interchangeable.

[00:16:06] Speaker 02:
This is something that was not done.

[00:16:07] Speaker 02:
I believe it's 2000 application date.

[00:16:11] Speaker 02:
This effectively reads to me, just my opinion, as an obviousness analysis piecing together a bunch of prior art to say that this was well understood, routine, and conventional, as this court has acknowledged.

[00:16:25] Speaker 02:
Even if it's in the prior art, that's not necessarily well understood routine and conventional, especially when you're piecing together five pieces of prior art.

[00:16:32] Speaker 01:
You're disputing.

[00:16:33] Speaker 01:
I mean, you would agree that heart rate monitors and VO2 max were used conventionally to determine fitness level and energy expenditure.

[00:16:52] Speaker 01:
Contention, as I understand it, is that somehow these parameters are being used in a different way.

[00:16:58] Speaker 02:
Well, VO2 max had not been used in a heart rate monitor to estimate energy expenditure in this way.

[00:17:04] Speaker 02:
That's right.

[00:17:05] Speaker 02:
Heart rate monitors had previously used heart rate, which did not take into account a person's fitness level.

[00:17:15] Speaker 02:
The advancement here was using VO2 max in this particular fashion

[00:17:20] Speaker 02:
to obtain better results, to obtain better results.

[00:17:24] Speaker 02:
And I don't believe that that's in dispute here based on the prior art.

[00:17:30] Speaker 02:
And I mean, it survived re-examinations, three re-examinations.

[00:17:35] Speaker 02:
And I know 102, 103 is a different animal than 101.

[00:17:39] Speaker 02:
But there's often overlap, right?

[00:17:41] Speaker 02:
And this is at least an issue that one polar should have been able to rebut.

[00:17:47] Speaker 02:
And I would argue this is an issue that should go to

[00:17:50] Speaker 02:
The jury.

[00:17:51] Speaker 03:
The patent expired four years ago.

[00:17:53] Speaker 03:
Is that right?

[00:17:55] Speaker 02:
I believe that's true.

[00:17:57] Speaker 02:
It was a 2000 application date, or at least a foreign application date.

[00:18:02] Speaker 02:
OK.

[00:18:04] Speaker 02:
It's a 2010 or 2011 case, Your Honor.

[00:18:10] Speaker 01:
All right.

[00:18:10] Speaker 01:
I think we're out of time.

[00:18:11] Speaker 01:
We'll give you two minutes for rebuttal.

[00:18:13] Speaker 02:
Thank you.

[00:18:14] Speaker 01:
Mr. Pandit.

[00:18:26] Speaker 04:
Morning, Your Honors.

[00:18:27] Speaker 04:
May it please the Court?

[00:18:28] Speaker 04:
I think Judge Chen's questions about Claim 5 are appropriate here.

[00:18:35] Speaker 04:
The problem with the claims in the 227 patent is that they're written with a high level of generality.

[00:18:43] Speaker 04:
So representative Claim 5, for example, requires nothing more than measuring a heart rate

[00:18:49] Speaker 04:
somehow obtaining a energy consumption reference value, and then assessing the energy based on a linear relationship.

[00:18:59] Speaker 04:
And that's the abstract idea.

[00:19:02] Speaker 04:
The problem with Poehler's argument is that they then say that applying the abstract idea to conventional computer components that are recited in claim 21 is somehow the inventive concept.

[00:19:15] Speaker 04:
And of course, that's not the law, and that's not appropriate, and that's what we argued in our briefs.

[00:19:20] Speaker 04:
So that's the entire problem.

[00:19:22] Speaker 04:
And when you look at whether there's an inventive concept, for example, in claim 21, you have a measuring means for measuring, you have a calculating unit for calculating, and you have a presenting means for presenting, a display, in other words.

[00:19:37] Speaker 04:
There's no ordered combination that's going to save these claims in claim 21.

[00:19:43] Speaker 04:
There's no inventive concept about using generic computer components.

[00:19:50] Speaker 04:
So there's really nothing that they can point to other than repeating that the use of VO2 max, which is the abstract idea, applied to these generic computer components is somehow an inventive concept.

[00:20:03] Speaker 04:
And it's distinguished from all of the cases that they've cited.

[00:20:06] Speaker 04:
For example, they cite to Cardionet.

[00:20:10] Speaker 04:
Cardionet has much more than just collecting information, analyzing it, and displaying it.

[00:20:19] Speaker 04:
They've cited to Diamond versus Deere, but as I think it was Judge Chen pointed out, that is completely different.

[00:20:25] Speaker 04:
Although it might have used a mathematical algorithm, it was doing something more.

[00:20:29] Speaker 04:
It was monitoring the inside of a chamber to affect cure time forever.

[00:20:35] Speaker 04:
So all of the cases that they've cited are completely distinguishable.

[00:20:40] Speaker 04:
And I think Judge Chen pointed out that there aren't too many claims like the one in claim five that have survived a 101 challenge.

[00:20:51] Speaker 03:
What about exergen?

[00:20:53] Speaker 04:
Exergen, as you pointed out, was non-precedential.

[00:20:56] Speaker 04:
But again, there's nothing more here.

[00:20:58] Speaker 04:
So again, looking at claim five, you have measuring a person's heart rate, obtaining a VO2 max or energy consumption reference value based on that.

[00:21:06] Speaker 03:
I know about these claims.

[00:21:08] Speaker 03:
What about the claims in exergen?

[00:21:12] Speaker 04:
Well, they're different from these claims.

[00:21:15] Speaker 04:
I'm not sure what the question is.

[00:21:16] Speaker 03:
Well, if in exogen those claims survived, why wouldn't the logic there apply here?

[00:21:25] Speaker 04:
The logic there doesn't apply here because there's nothing more.

[00:21:28] Speaker 04:
There's no inventive concept in the claims of the 227 patent.

[00:21:31] Speaker 01:
Exogen was measuring temperature in a different way, right?

[00:21:37] Speaker 04:
Correct.

[00:21:39] Speaker 04:
But they're not measuring anything in a different way.

[00:21:42] Speaker 04:
They're using VO2 max, which Mr. Fuga earlier said was already known.

[00:21:47] Speaker 04:
And they're using it to assess a person's energy consumption based on an admittedly and claimed linear relationship.

[00:21:57] Speaker 04:
So there's nothing different about it.

[00:21:59] Speaker 04:
And even if it were, even if the use of VO2 max were something novel, it's still an abstract idea.

[00:22:05] Speaker 04:
And a novel abstract idea is still abstract.

[00:22:15] Speaker 04:
I did briefly also, were there any other questions on those points?

[00:22:21] Speaker 00:
Can you address the argument that the other side is making regarding that the summary judgment proceeding was suesponte?

[00:22:29] Speaker 04:
Yeah.

[00:22:30] Speaker 04:
First, they cite to the Estrellas case.

[00:22:33] Speaker 04:
In Estrellas, in their reply brief, in Estrellas, the defendant in that case waived the right to challenge based on 101.

[00:22:42] Speaker 04:
And after a jury trial, the district court

[00:22:45] Speaker 04:
independently invalidated the patent based on 101.

[00:22:49] Speaker 04:
So the situation is completely different than here where we obviously briefed the 101 issue.

[00:22:56] Speaker 01:
So you made a summary judgment motion based on 101, right?

[00:23:00] Speaker 04:
Correct.

[00:23:02] Speaker 04:
Yeah, so it's completely different than the Estrellas decision.

[00:23:05] Speaker 04:
And as far as the citation of prior art, I think it's important to note that the district court didn't go out and search for its own prior art.

[00:23:15] Speaker 04:
What it did is what it's allowed to do, which is it considered the intrinsic evidence and that prior art that they were referring to was part of the three re-examinations.

[00:23:25] Speaker 04:
And that's what the judge used to explain in his decision how the claims arrived at the state that they were and the fact that Dr. Levine, who was Polar's expert, was addressing those claims as they resulted after the three re-exams.

[00:23:49] Speaker 04:
I know I have a significant amount of time here, but I'm happy to answer any questions.

[00:23:53] Speaker 04:
Otherwise, I can provide you with, you know, I think the most important point to make here is one that I think the court has recognized.

[00:24:05] Speaker 04:
But the claims have nothing outside of an abstract idea.

[00:24:09] Speaker 04:
Representative claim five, for example, just requires measuring a person's heart rate.

[00:24:16] Speaker 04:
obtaining a energy consumption reference value and then analyzing that based on a known mathematical relationship.

[00:24:26] Speaker 04:
The invocation of generic computer components in claims 15 and 21 don't add anything to it.

[00:24:35] Speaker 04:
There's no ordered combination of a calculating unit, a measuring means, or a presenting means that can save these claims under ALICE step two.

[00:24:50] Speaker 01:
Okay, anything else?

[00:24:52] Speaker 01:
That was it, Your Honor.

[00:24:53] Speaker 01:
Okay, thank you.

[00:24:54] Speaker 01:
Thank you.

[00:24:55] Speaker 01:
Mr. Fugal, you have two minutes.

[00:25:00] Speaker 02:
I understand I only have a couple of minutes, so I'll try to be quick.

[00:25:03] Speaker 02:
Mr. Panda just made the point that the components are conventional as claimed, but I would point the court to macro, where this is like macro, where

[00:25:14] Speaker 02:
While the rules are embodied in computer software, and this is a quote, it is processed by general purpose computers, defendants have provided no evidence that the process previously used by animators is the same as the process required by the claims.

[00:25:26] Speaker 02:
That is like what we have here.

[00:25:28] Speaker 02:
This is an improved process.

[00:25:29] Speaker 02:
The use of VO2 max in this way was not known.

[00:25:34] Speaker 02:
The patent says this, Dr. Levine says this, if the court disagreed through prior art, that is a factual issue for a jury to weigh.

[00:25:42] Speaker 02:
First Beat did not challenge Dr. Levine.

[00:25:49] Speaker 02:
We see this, obviously I mentioned exergen, we do see this as a line from deer.

[00:25:56] Speaker 02:
This is an improved process for an improved result.

[00:25:59] Speaker 02:
Deer, which led to Cardionet, which led to exergen.

[00:26:03] Speaker 02:
For Cardionet and exergen, it's an improved process for monitoring the body.

[00:26:09] Speaker 02:
In Cardionet, you're monitoring the heart to get a better analysis of the heart.

[00:26:13] Speaker 02:
In exergen, you're looking, you're assessing the body for a better

[00:26:18] Speaker 02:
body temperature.

[00:26:19] Speaker 02:
It's an improved body temperature.

[00:26:20] Speaker 02:
That is very much like what we have here, where you're assessing the body for an improved, a more accurate energy expenditure.

[00:26:28] Speaker 02:
I would caution, Mr. Pandit said that there's nothing more in these claims.

[00:26:38] Speaker 02:
We walk through the claims.

[00:26:39] Speaker 02:
The claims are as they are.

[00:26:40] Speaker 02:
There's a lot of detail here.

[00:26:43] Speaker 02:
A lot of the concerns that we have at 101

[00:26:46] Speaker 02:
stems from preemption, but is asking how.

[00:26:49] Speaker 02:
How is this done?

[00:26:50] Speaker 02:
Is this looking, is this claiming a result?

[00:26:55] Speaker 02:
Or is this claiming the improved process to get to a better result?

[00:26:59] Speaker 02:
Right, that is often discussed as the how.

[00:27:04] Speaker 02:
We would argue that we have that how.

[00:27:06] Speaker 02:
I'm out of time.

[00:27:08] Speaker 01:
Thank you, Your Honor.