[00:00:14] Speaker 03:
Our next case is Macro Inc versus Bandai Namco GA.

[00:00:42] Speaker 03:
Mr. Lankin, you saved five minutes of your time for rebuttal.

[00:00:46] Speaker 04:
That's right.

[00:00:46] Speaker 03:
All right, you may proceed.

[00:00:48] Speaker 04:
May it please the court.

[00:00:50] Speaker 04:
The invention here improves an inherently technological industry process, lip syncing computer-generated 3D characters so their mouths move in sync so they appear to speak the words in a prerecorded transcript.

[00:01:05] Speaker 04:
That produces a tangible result.

[00:01:07] Speaker 04:
It takes static character images, static characters,

[00:01:11] Speaker 04:
and it converts them into moving images, moving images that appear to speak realistically.

[00:01:16] Speaker 04:
It is technological.

[00:01:17] Speaker 04:
It teaches how a computer can displace human judgment at thousands and thousands of key frames.

[00:01:24] Speaker 04:
The human judgment was previously necessary to achieve adequate quality.

[00:01:28] Speaker 00:
What's the best place in this specification for the idea that what the humans

[00:01:37] Speaker 00:
who were sitting at the terminals before this system came into place were doing something that would not be described as following their own rules.

[00:01:50] Speaker 00:
You make a big deal about intuitive artistic judgment versus rules.

[00:01:58] Speaker 00:
Because if they were following rules, then you have a greater challenge of saying, oh, we're just putting human activity onto the computer.

[00:02:06] Speaker 04:
Your Honor, I don't believe the specification goes and explains how a human artist went through and used their judgment to remove sliders to adjust a face like an artist might mold clay until they have that aha moment.

[00:02:18] Speaker 04:
It's just right.

[00:02:20] Speaker 04:
But we do know that they're not doing calculations in their head saying, you know what, I think that because the B's next one, L, we really think we should reduce the morph weight for the L a little bit so it's not fully articulated.

[00:02:31] Speaker 04:
In fact, we'll go from 120.3.7.0

[00:02:34] Speaker 04:
to 120.1.5.

[00:02:37] Speaker 04:
That's simply not how the process works.

[00:02:40] Speaker 04:
The computerized process, the method we claim here, is entirely different.

[00:02:46] Speaker 04:
And it's different for a reason.

[00:02:48] Speaker 04:
It's different because it allows the computer to replace that judgment.

[00:02:51] Speaker 04:
And the results are actually somewhat different.

[00:02:53] Speaker 04:
The human being comes out with a slightly more artistic method.

[00:02:56] Speaker 04:
It's not as uniform, but it is a higher quality result.

[00:03:01] Speaker 04:
And it's not just the application of rules here.

[00:03:04] Speaker 04:
and specific rules that lead to this result.

[00:03:07] Speaker 04:
If you look at the claim, it has not merely improving this technological process, producing this physical output, not merely taking this and automating it.

[00:03:18] Speaker 04:
It goes and gives a very specific process for achieving that result that is wholly unconventional in several respects.

[00:03:24] Speaker 00:
Can we talk about a doctrinal point that I know we and you all need to make your arguments in, which is this

[00:03:33] Speaker 00:
two-stage framework where under one view stage one is meaningless because there's an idea and everything and it can't be that.

[00:03:43] Speaker 00:
So how do we decide whether this production of a physical thing, in fact a moving physical thing, is directed to an abstract idea or merely

[00:04:02] Speaker 00:
has one of those in it, because at least under some views, some rule might be an abstract idea.

[00:04:08] Speaker 04:
Right.

[00:04:09] Speaker 04:
I think, Your Honor, that the Supreme Court's given us no guidance on that.

[00:04:12] Speaker 04:
But when you are producing a physical object, when you're actually showing a production process to make something different, it's very hard to find an abstract idea.

[00:04:21] Speaker 04:
And I think when the district court said, look, this doesn't appear to be an abstract idea.

[00:04:26] Speaker 00:
Mayo's description of deer is not quite consistent with that.

[00:04:31] Speaker 00:
Is it, I mean, doesn't Mayo, and I'm not remembering, but I thought Mayo, which, you know, is obviously not the last word in the creation of this framework, describes the, is that the Arsenius equation?

[00:04:45] Speaker 00:
Did I got the wrong piece?

[00:04:46] Speaker 00:
Uranius equation, correct.

[00:04:48] Speaker 00:
As an abstract idea, but then says, oh, there's lots more going on in deer.

[00:04:54] Speaker 00:
Or does Mayo describe deer as sort of falling off at stage one?

[00:05:00] Speaker 04:
No, it's not at all clear where deer fall or falls off, because deer could fall off at either stage.

[00:05:07] Speaker 04:
Because on the one hand, it's improving an inherently industrial process to cure weather, to make it come out more precise.

[00:05:13] Speaker 04:
And you have lots of different steps in the processes.

[00:05:16] Speaker 04:
And the fact that you happen to use a computer and calculations at one step doesn't make it an abstract idea.

[00:05:23] Speaker 04:
On the other hand, deer also could fall out at step two, because deer has much more than just the Arrhenius equation in it.

[00:05:30] Speaker 04:
It has the young cured rubber, it has the molds, it has repeated calculations, it has opened the molds at the proper time.

[00:05:36] Speaker 03:
Does it matter that there's something physical and tangible and dear that has been affected?

[00:05:42] Speaker 04:
I think that the fact that it's part of an industrial technological process tends to suggest to us that this is at step one, you're done with it.

[00:05:50] Speaker 04:
And I think that's true and dear.

[00:05:52] Speaker 04:
I think it's also true here.

[00:05:53] Speaker 04:
What appears on our screens today, the images that we look and that entertain us every day,

[00:05:57] Speaker 04:
is an inherent part of a technical process.

[00:06:00] Speaker 04:
It's what the entertainment industry produces, these animating characters that do not exist in nature, but look and talk as if they are speaking with us.

[00:06:09] Speaker 03:
The district court in this case, in making this particular decision, stripped out all of the elements of the claims that he deemed were covered by priority.

[00:06:26] Speaker 03:
Is that legal error?

[00:06:27] Speaker 03:
And if so, why and what's the legal basis?

[00:06:30] Speaker 03:
Sure.

[00:06:31] Speaker 04:
I think it is legal error, because step one simply asks the question of what is the underlying abstract idea?

[00:06:37] Speaker 04:
When you begin the process of stripping out something that's purely conventional, is the step two, it's not everything in the prior art, it's what's purely conventional.

[00:06:45] Speaker 04:
And step one says, is this really the type of thing?

[00:06:47] Speaker 03:
Well, is it appropriate in step two?

[00:06:49] Speaker 04:
In step two, when you've already decided that it's directed at an abstract idea,

[00:06:53] Speaker 04:
And I don't think we're directed at an abstract idea here.

[00:06:56] Speaker 04:
I think even the district court's description of the idea is very concrete, and it didn't capture the whole invention.

[00:07:02] Speaker 04:
But when you're at step two, you do back out everything that's purely conventional, and there's a reason for that.

[00:07:07] Speaker 03:
The court says, look, we're not going to, the Supreme Court's- But you identify whether particular applications are conventional, but do you strip them out and then review what's left?

[00:07:19] Speaker 03:
Well, you're right.

[00:07:20] Speaker 04:
You look at each one, and if the step,

[00:07:23] Speaker 04:
that you're looking at is truly conventional.

[00:07:25] Speaker 04:
You don't look at it in isolation.

[00:07:26] Speaker 04:
But you do go back and look at the co-current combination of all the steps.

[00:07:30] Speaker 04:
And you ask, is that combination novel?

[00:07:33] Speaker 04:
Is it a point of novelty?

[00:07:35] Speaker 04:
I shouldn't say point of novelty.

[00:07:36] Speaker 03:
Is it an inventive concept that adds something more than what the underlying abstract idea here?

[00:07:41] Speaker 03:
I guess my question is, in a Section 101 analysis, is a district court required to consider the claims as a whole?

[00:07:50] Speaker 03:
Absolutely.

[00:07:51] Speaker 04:
I think Deere is very clear on that.

[00:07:52] Speaker 04:
that you do look at the individual inventive concepts in individual steps, and then you assemble everything.

[00:07:58] Speaker 04:
And you say, does the whole add to something that goes beyond any underlying abstract idea?

[00:08:04] Speaker 04:
And I think the district court failed to do that here.

[00:08:07] Speaker 04:
And if you do that and you don't ignore all the critical limitations, you see that there is a huge number of inventive concepts here.

[00:08:15] Speaker 04:
And I'm not talking about just the use of rules in a particular type of rule.

[00:08:20] Speaker 04:
That is, rules based on phoneme sequence

[00:08:23] Speaker 04:
what sound is near and adjacent to what sound, or rules based on timing of phonemes sequence, how fast that sequence works.

[00:08:30] Speaker 04:
It's also the way that it applies those rules.

[00:08:33] Speaker 04:
It's what it produces using those rules before it becomes an intermediate stream, final stream, and then finally animated content.

[00:08:42] Speaker 04:
So starting with just the application of the rules, it applies the rules to take it to a subsequence of phonemes.

[00:08:47] Speaker 04:
So it takes a set of phonemes.

[00:08:49] Speaker 04:
And it looks through those phonemes as a group, like a window passing through this set.

[00:08:54] Speaker 04:
And that's important because you're trying to figure out what phonemes are near what phonemes, what sounds are near which sounds, and what is the group as a whole.

[00:09:03] Speaker 04:
How long does it take for that group as a whole to be set?

[00:09:06] Speaker 03:
So apparently the parties agreed that a good part of the applications here was conventional.

[00:09:16] Speaker 04:
Your Honor, I don't think that there's a good part that's conventional.

[00:09:19] Speaker 04:
There are pieces that are conventional.

[00:09:21] Speaker 03:
Morph-weight sets.

[00:09:22] Speaker 03:
Well, the invention appears to advance an existing technology.

[00:09:26] Speaker 03:
That's correct.

[00:09:27] Speaker 03:
They use a morph-weight set.

[00:09:28] Speaker 03:
The existing technology, I don't want to call it a prior art, the existing technology can itself apparently was based on conventional type activity.

[00:09:38] Speaker 03:
Yeah, the existing technology, I would concede.

[00:09:42] Speaker 03:
So when I look at the video that you submitted,

[00:09:46] Speaker 03:
You've got to look really hard to see the difference.

[00:09:51] Speaker 03:
I thought it was a minute difference between what was added to the existing technology.

[00:10:00] Speaker 03:
It was not a lot.

[00:10:02] Speaker 03:
I'm not saying that's not enough.

[00:10:05] Speaker 04:
I think the difference in the quality of the output, the flappy-lipped character, and the characters that move their lips, as you would expect, is a huge difference in quality.

[00:10:14] Speaker 04:
But what matters here is what are the claims at?

[00:10:17] Speaker 04:
And so why don't I just sort of walk through what some of those objectives are.

[00:10:20] Speaker 01:
I was just going to say before you do that, I'm also struggling with the idea of when is something, when is a claim directed to an abstract idea and what does that mean?

[00:10:30] Speaker 01:
And we have a couple different things like that California Institute case said you look at what is the purpose of the invention and is that purpose abstract?

[00:10:40] Speaker 01:
Are you able to say, I mean,

[00:10:42] Speaker 01:
So here, if we were to say, yeah, the district court's methodology was wrong, but what is it that the district court should have done?

[00:10:49] Speaker 04:
I think the district court made the mistake of not following what our first impressions.

[00:10:54] Speaker 04:
It looked at it and said, this does not appear directed to an abstract idea because it's an improvement to an existing technological process that is tangible and produces an output.

[00:11:04] Speaker 04:
I think that it really is something of a Gestalt test.

[00:11:06] Speaker 04:
I don't think you ask what is the result you're trying to achieve.

[00:11:09] Speaker 04:
But if you're going to come up with something and you look at what the district court said,

[00:11:12] Speaker 04:
This part said, well, it's rules-based applied to more weight sets and, I think, vectors in order to produce 3D animation.

[00:11:21] Speaker 04:
Well, that's really concrete.

[00:11:23] Speaker 04:
And if you add to that what's actually in the claims, then it becomes clear by the time you get to step two that we're well beyond even whatever that might be, if you want to call that an abstract idea.

[00:11:34] Speaker 04:
I think it's critical I wanted to go to if I answer your question.

[00:11:37] Speaker 04:
go to what's added, and there's four pieces.

[00:11:40] Speaker 04:
You are into your rebuttal time, just to give you a heads up.

[00:11:43] Speaker 04:
I apologize.

[00:11:44] Speaker 04:
I'm going to focus on just one piece, then.

[00:11:47] Speaker 04:
Aside from those specific types of rules, which are not conventional and not the priority, the timing of phoneme sequence and the phoneme sequence itself, it's the intermediate stream.

[00:11:59] Speaker 04:
This has a particular type of stream that must be produced using those rules.

[00:12:03] Speaker 04:
And it has two pieces, morph weight sets and transition rules.

[00:12:07] Speaker 04:
The morph weight sets are the L looks different from the B because it looks different than it otherwise would because it's next to a B or because it's said very quickly in a fast word.

[00:12:17] Speaker 04:
The transition rules say, how do you get from the B to the L?

[00:12:21] Speaker 04:
What kind of curve are you going to use?

[00:12:22] Speaker 04:
Is it linear?

[00:12:23] Speaker 04:
Do you move something out in terms of timing?

[00:12:26] Speaker 04:
Those transition rules, the idea of having an intermediate stream of transition rules in it that tell you how to get from one weight set to another.

[00:12:34] Speaker 04:
Nowhere in the prior art, the district court admitted it.

[00:12:36] Speaker 04:
It's not conventional by any means.

[00:12:39] Speaker 04:
And that's just one of the multiple pieces that appear in this ordered combination that differentiated and showed the inventive concept on top of these innovative rules to genus phoneme sequence and time of phoneme sequence.

[00:12:54] Speaker 04:
If I could reserve the remainder of my time for about a minute.

[00:13:03] Speaker 03:
Thank you.

[00:13:03] Speaker 03:
Thank you.

[00:13:03] Speaker 03:
Counselor Armento.

[00:13:04] Speaker 02:
Yes, may it please the court.

[00:13:06] Speaker 02:
I want to start by talking about the abstract idea here.

[00:13:10] Speaker 02:
The abstract idea is using rules to automate the conventional process of lip sync using morph targets.

[00:13:19] Speaker 02:
The patent itself, in column two, describes the prior art common practice of using the morph target approach.

[00:13:28] Speaker 02:
It goes on to say that the point of the invention is to automate that process.

[00:13:34] Speaker 02:
The claims and specification are consistent that what the invention is.

[00:13:39] Speaker 02:
Can I ask you this?

[00:13:40] Speaker 00:
And I guess it's a version of the other side's automatic pilot example.

[00:13:49] Speaker 00:
Or I've always thought about the facial recognition example.

[00:13:54] Speaker 00:
I have no idea what's going on inside my brain when I recognize your face.

[00:13:59] Speaker 00:
And it seems to me a kind of unbelievably

[00:14:04] Speaker 00:
patentable invention for somebody to figure out a system of rules that would allow a computer to automate that process.

[00:14:13] Speaker 00:
So what is different here from that, or do you want to contest the premise?

[00:14:18] Speaker 02:
No, I agree with that premise, but this is fundamentally different and here's why.

[00:14:22] Speaker 02:
In the case of autopilot or facial recognition, if someone were to come forward and say, here is how we do it, here are the rules that you would apply, and apply those rules,

[00:14:32] Speaker 02:
then I think we're falling into the category of patentable subject matter.

[00:14:36] Speaker 02:
What this patent is directed to and what these claims capture is the idea of using rules without providing any more specificity.

[00:14:45] Speaker 02:
They are essentially taking an autopilot and saying, fly the plane automatically using rules that consider conditions and timing.

[00:14:54] Speaker 02:
That would be the claim.

[00:14:56] Speaker 02:
That itself is the idea of autopilot, but doesn't actually contribute anything to the art.

[00:15:01] Speaker 02:
because lots of people probably think, wouldn't it be nice if I could use a computer to do this for me faster, more efficiently, or whatever.

[00:15:08] Speaker 02:
That is not patentable subject matter.

[00:15:11] Speaker 00:
Except on the assumption that one of the possible claim constructions here, and I guess we don't have claim constructions, is the actual production of the right kind of visual image, one that's moving and looks pretty cool, and on the assumption that

[00:15:30] Speaker 00:
the specification enables production of that, then the analogy in your autopilot example is a patent that says use autopilot and the specification has a whole lot of specific rules that, in fact, enables the plane to fly without a pilot on the rudder or whatever it's called.

[00:15:51] Speaker 02:
The problem, Your Honor, is that there's a mismatch between enablement and section 101 because of the scope of these claims.

[00:15:59] Speaker 02:
So I would agree with you that if the claims were directed to a scope and the scope of that was fully enabled by examples in the specification, then we might have a different situation.

[00:16:10] Speaker 02:
The problem we have is that the claims seek to capture the idea of using rules.

[00:16:16] Speaker 00:
And if you're going to claim the idea of using rules generically... Right, but let's assume now that there is a possible set of claim constructions that substantially narrows

[00:16:29] Speaker 00:
the kinds of rules in some of the ways that Mr. Lamkin described.

[00:16:37] Speaker 02:
Fair enough, Your Honor.

[00:16:38] Speaker 02:
There are two responses to that.

[00:16:39] Speaker 02:
The first response is, of course, that was an argument that was never presented below.

[00:16:42] Speaker 02:
I think to the extent that we have this sort of creek where we went through the full claim construction process before the district

[00:16:50] Speaker 02:
With 101 being very much in the forefront of both parties' minds, it wasn't like this was a surprise.

[00:16:55] Speaker 00:
So were there claim constructions adopted?

[00:16:58] Speaker 02:
Yes, Your Honor, there were.

[00:16:59] Speaker 02:
The claim construction order is at page A4009 of the appendix.

[00:17:06] Speaker 02:
And we went through a full claim construction process before Judge Wu with the district court.

[00:17:11] Speaker 02:
And the limitation set of rules was contested between the parties and was construed by the court

[00:17:20] Speaker 02:
What we were arguing was that the set of rules had to be embodied in a single piece of software.

[00:17:25] Speaker 02:
McRoe argued that there should be.

[00:17:26] Speaker 00:
I'm sorry.

[00:17:27] Speaker 00:
That's not at least the focus of my concern.

[00:17:30] Speaker 00:
Fair enough.

[00:17:32] Speaker 00:
It's about the sequence and timing business.

[00:17:33] Speaker 02:
Exactly, Your Honor.

[00:17:34] Speaker 02:
So fair enough.

[00:17:35] Speaker 02:
My point is that we went through the whole process, and there was never a dispute on sequence and timing.

[00:17:40] Speaker 02:
And the reason for that is the claim says on its face that sequence and timing have to be considered.

[00:17:45] Speaker 02:
Nobody disputes that.

[00:17:47] Speaker 02:
Any lip sync would have to consider the sequence of the phonemes, what comes before what, because that's how our mouth moves, and timing so that you can synchronize the mouth movement with the speech in time.

[00:17:58] Speaker 00:
I'm thinking of, I guess, a case I was recently involved in involving signal processing.

[00:18:06] Speaker 00:
And there's a question about signal dependent noise and correlated noise.

[00:18:10] Speaker 00:
And those added something pretty significant

[00:18:14] Speaker 00:
to just a bunch of read head readings of the magnetic area.

[00:18:22] Speaker 00:
And it added something, in fact, quite dramatic to say what you're doing, what you're finding depends on what came before and what came after.

[00:18:34] Speaker 00:
So it's just not right that the word sequence doesn't necessarily mean more than one darn thing after the next.

[00:18:45] Speaker 02:
Well, Your Honor, I think that might be true in that case.

[00:18:47] Speaker 02:
In this case, that's not true.

[00:18:49] Speaker 02:
Because if you look at the patent specification and the claim construction, or I'm sorry, the section 101 order from Judge Wu, what the patent describes is the idea of looking at what the sequence of phonemes is, and then picking sort of key points in time that are called key frames, and then interpolating between them.

[00:19:06] Speaker 02:
That generates an intermediate stream, and then you would interpolate further to get to the final stream.

[00:19:11] Speaker 02:
The sequence is simply the order in which the phonemes appear.

[00:19:14] Speaker 02:
Even in the current version of the claim construction position, which was never advocated below, there's no identification of some secret sauce to sequence that changes the analysis.

[00:19:25] Speaker 00:
And when you say never advocated, are you putting aside or including what I guess I'm remembering from their gray brief, maybe an oral argument passage where he said it actually matters what the previous phoneme was?

[00:19:40] Speaker 02:
I think the difference is, Your Honor, when I say that, I mean they never advocated for a particular claim construction.

[00:19:45] Speaker 02:
I agree that at the 101 hearing, by the time things evolved, they raised the concepts of sequence and timing.

[00:19:51] Speaker 02:
And Judge Wu actually addressed that in his ruling.

[00:19:54] Speaker 02:
And what he found, if you look at A17, he found that the rules for defining morph weight sets as a function of timing

[00:20:07] Speaker 02:
Let me strike that.

[00:20:08] Speaker 02:
Rules of defining morph weight sets as a function of phoneme sequence are disclosed within the prior art.

[00:20:13] Speaker 02:
Timing is not, because that's a matter of the artist's choice of key frames, but that no specific timing rules are required.

[00:20:21] Speaker 02:
So the district court judge considered the 101 oral argument about timing and sequence and found that timing doesn't add anything because, of course, you need to look at the key frames in time and then interpolate between them.

[00:20:33] Speaker 02:
That was conventional.

[00:20:34] Speaker 02:
It was well known.

[00:20:35] Speaker 02:
It doesn't add anything because that's simply a necessary part of any lip synchronization.

[00:20:41] Speaker 02:
You must know what the sequence of phonemes are and what the timing is between them.

[00:20:45] Speaker 01:
In your brief, you say that the claims are directed to a number of different abstract ideas.

[00:20:53] Speaker 01:
How does that provide any certainty when you don't figure out which abstract idea?

[00:20:58] Speaker 01:
How is one to know what the test is for determining

[00:21:03] Speaker 01:
if the claim is directed to an abstract idea.

[00:21:05] Speaker 02:
I don't remember saying it exactly that way, but I trust you that we did.

[00:21:08] Speaker 02:
And I think what we meant by that was that you have to look at the sort of different layers of abstractness, right?

[00:21:13] Speaker 02:
And so exactly what level you look at the claim in I think is not always completely clear.

[00:21:19] Speaker 02:
The best that I can do for you is to suggest that we look at the precedent on where claims have been found to be abstract and see how close this claim comes to that.

[00:21:29] Speaker 02:
I admit this claim is more dense than a lot of claims that are

[00:21:33] Speaker 02:
tested under Section 101.

[00:21:35] Speaker 02:
It is not a very high level business method claim.

[00:21:38] Speaker 02:
It has dense terms of art.

[00:21:40] Speaker 02:
But that doesn't necessarily mean it is not abstract.

[00:21:43] Speaker 02:
If you were to look at Parker v. Fluke, Parker v. Fluke is a physical process for catalytic conversion.

[00:21:49] Speaker 02:
What the court was looking at there .

[00:21:51] Speaker 00:
.

[00:21:51] Speaker 00:
.

[00:21:51] Speaker 00:
Parker involved in the background such a physical process.

[00:21:54] Speaker 00:
The claim didn't claim anything about the physical process except that the value calculation would be used in something.

[00:22:00] Speaker 02:
That's correct, Your Honor, but it was simply an app.

[00:22:02] Speaker 02:
It was basically an instruction to apply that in a physical process.

[00:22:06] Speaker 00:
Just as... I think I want to differ with that.

[00:22:10] Speaker 00:
I don't think it said, applied in that process.

[00:22:12] Speaker 00:
It said, when you're doing this process, calculate this value.

[00:22:18] Speaker 02:
That might be true, but I'm not sure how I see that as being different from the current claim, and here's the reason why.

[00:22:23] Speaker 02:
The current claim is basically taking a set of steps that happen on a computer.

[00:22:27] Speaker 02:
Now, we agree

[00:22:29] Speaker 02:
that the end result will almost certainly be applied to actually render an animation.

[00:22:34] Speaker 02:
But essentially, it's just math.

[00:22:36] Speaker 02:
It's two pieces of input, the time-aligned phonetic transcript, which is the time-aligned voice, and then the phoneme sequence, which is the sequence of phonemes that are visual.

[00:22:47] Speaker 00:
Why wouldn't the autopilot situation just be math?

[00:22:50] Speaker 02:
I think the autopilot situation would just be math.

[00:22:53] Speaker 02:
And if the claim was directed to the idea of using rules

[00:22:57] Speaker 02:
associated with timing and weather conditions to do autopilot, that claim would also be unpatentable.

[00:23:04] Speaker 02:
The issue is you have to say what the rules are or somehow contribute something more than the idea of using rules.

[00:23:13] Speaker 01:
And on that point, I would point... What would you have done?

[00:23:14] Speaker 01:
Could anything have been done to the claims here to make them patent eligible?

[00:23:18] Speaker 01:
Yes, Your Honor.

[00:23:19] Speaker 02:
I think there could have been.

[00:23:20] Speaker 02:
So I think a couple of things could have happened.

[00:23:22] Speaker 02:
and Judge Wu contemplated this because he was very concerned about sort of making sure we were really strictly applying the Supreme Court's precedent.

[00:23:29] Speaker 02:
And he contemplated the question of what would you do here?

[00:23:32] Speaker 02:
And he said, look, if the rules were directed to something more specific, so for example, if they actually specified what the rules might be that consider timing and sequence to generate something, what that secret sauce is, what the invention is behind the idea.

[00:23:48] Speaker 01:
and phoneme, and you'd have to have it for every sound?

[00:23:52] Speaker 02:
No, Your Honor.

[00:23:52] Speaker 02:
I think what you could do is you could consider a variety of factors that would go into it, and then you could claim those.

[00:23:58] Speaker 02:
You could also do a means plus function claim if you wanted to specify specific algorithms that you have.

[00:24:03] Speaker 02:
There are things that could be done to focus in on what the actual contribution was in terms of telling you how it is that you go through the process of flying the plane.

[00:24:14] Speaker 02:
or how it is that you go through the process of recognizing someone's face.

[00:24:17] Speaker 02:
What's your non-infringement argument here?

[00:24:19] Speaker 02:
It doesn't relate to the rules limitation as it's defined.

[00:24:22] Speaker 02:
The way the rules limitation is defined, which is just considering timing and sequence, I don't think there's any process for facial animation or lip sync that wouldn't fall into that category.

[00:24:34] Speaker 02:
Our non-infringement positions are based on different limitations, specifically the morph weight sets.

[00:24:39] Speaker 03:
I'm concerned that maybe Judge Wu added a third step to the Section 101 analysis.

[00:24:47] Speaker 03:
He says on A14, he says, however, for purposes of Section 101 analysis, it's not enough to view the claims in isolation.

[00:24:55] Speaker 03:
I take that to mean as a whole.

[00:24:57] Speaker 03:
And then he goes on and says, what we have to do is strip out anything that's convinced, or he says the prior art, that falls under prior art, which has a technical meaning.

[00:25:08] Speaker 03:
which I don't equate necessarily prior art and conventional activity to be the same in all circumstances, but he says we strip out everything that falls under the prior art and then we see what's left.

[00:25:23] Speaker 03:
Isn't that error?

[00:25:25] Speaker 03:
I mean, what's the legal basis for that type of analysis?

[00:25:31] Speaker 02:
I think, Your Honor, that that analysis might not have been the most clear way of looking at it, and I think that when you actually look at what he did, though, he did look and think about what the abstract idea is, and he focused in on the ideas of automation using rules, which the patent describes as the core of the invention.

[00:25:51] Speaker 02:
So when you think about what the claim is directed to, of course you have to look at what is the overall concept of the claim, and when he says we want to look... But where did he do that, though?

[00:26:02] Speaker 03:
Consider the overall concepts of the claim.

[00:26:04] Speaker 02:
He didn't use those words.

[00:26:05] Speaker 02:
But I think if you look at A17, Your Honor, at the top of the page, he says, plaintiff's expert opines that a central part of the patents is using morph weight set representations of the facial shape coupled with rules, including explicit and distinct timing rules to generate key frames.

[00:26:25] Speaker 02:
Everyone appears to agree with that characterization, except defendants point out

[00:26:30] Speaker 02:
that no particular explicit and distinct rules are required by the claims.

[00:26:34] Speaker 02:
So that's an articulation of what the overall concept of the claims is as agreed between the parties.

[00:26:41] Speaker 02:
Then the question becomes, does that overall concept, is that something beyond abstract?

[00:26:47] Speaker 02:
And because the claims don't actually claim the rules, they simply give you the idea of the rules.

[00:26:53] Speaker 02:
That is an abstract concept under step one.

[00:26:56] Speaker 00:
So Mr. Lamkin invokes

[00:26:59] Speaker 00:
what is it, I guess the ABV case, but it invokes it for a principle that, unless you tell me otherwise, I'm prepared to assume is fairly common, which is that it is commonplace and quite permissible to claim certain inventions in genus form and not recite each particular embodiment in the claims.

[00:27:23] Speaker 00:
I assume you don't

[00:27:24] Speaker 00:
doubt that claiming can be done that way without making the genus automatically abstract?

[00:27:30] Speaker 02:
No, Your Honor, we wouldn't.

[00:27:31] Speaker 02:
But in that case, you would still have to put some bounds around the genus in order to take it from abstract idea.

[00:27:38] Speaker 00:
But why doesn't that end up being, depending in this case, on what now at least appears to be a claim construction dispute that hasn't been resolved?

[00:27:51] Speaker 02:
I think the reason for that is quite simple, Your Honor.

[00:27:54] Speaker 02:
The idea that it hasn't been resolved, I think, accepts two premises of their arguments that I would contest.

[00:28:00] Speaker 00:
The first is that there's some sort of... Let's even say it hasn't been raised.

[00:28:03] Speaker 00:
But in any event, there is a dispute about how many constraints there are on the rules at issue.

[00:28:10] Speaker 02:
I'm in rebuttal time.

[00:28:11] Speaker 02:
May I respond to that question?

[00:28:12] Speaker 02:
Thank you, Your Honor.

[00:28:13] Speaker 02:
The first point is, Your Honor, that that assumes that the district court didn't think about that.

[00:28:18] Speaker 02:
And if we look at A-18,

[00:28:20] Speaker 02:
The district court clearly thought about that question.

[00:28:23] Speaker 02:
What he says at line 15 is, at the hearing on the motion, plaintiff emphasized that the rules inventively take into account the timing of the phoneme sequence.

[00:28:35] Speaker 02:
But the specification states clearly that in operation and use, the user must manually set up default correspondence rules that specify the durational information needed to generate appropriate transitionary curves.

[00:28:48] Speaker 02:
Then he goes on to say that the evidence that they cited is only an example of the set of rules that could be used for illustrative purposes, and that many other rules could be specified according to the methods of the invention the claim purports to cover all such rules.

[00:29:03] Speaker 02:
That's point one.

[00:29:04] Speaker 02:
And the second point is, Your Honor, even if they had some sort of special sauce of what these timing and sequence rules are that somehow generate a claim construction dispute beyond what was presented to Judge Wu,

[00:29:17] Speaker 02:
and that they were allowed to present that claim construction dispute beyond what was presented to Judge Wu, they haven't explained why that would actually change the outcome in terms of Section 101.

[00:29:27] Speaker 02:
Thank you, Your Honors.

[00:29:28] Speaker 03:
Before you sit down, any other questions?

[00:29:30] Speaker 03:
Okay.

[00:29:30] Speaker 02:
Thank you, Your Honors.

[00:29:35] Speaker 03:
Mr. Langton, I'm going to restore you back to five minutes.

[00:29:45] Speaker 04:
I'd like to begin by addressing the concept of the rules that are at issue here.

[00:29:50] Speaker 04:
At claim construction, what was addressed was not the meaning of the phrase, phoneme sequence and timing of phoneme sequence.

[00:29:57] Speaker 04:
It was just first set of rules.

[00:29:59] Speaker 04:
Throughout this case, as at page 21 of a reply brief we have maintained, when the claims say phoneme sequence and timing of phoneme sequence, that means the relationship between the phonemes, what is near what,

[00:30:13] Speaker 04:
and how fast the group of phonemes is spoken, not just the right phoneme at the right time.

[00:30:19] Speaker 04:
As a matter of claim construction, I think that is the correct answer.

[00:30:22] Speaker 04:
And if Judge Wu thought otherwise, he just simply erred.

[00:30:25] Speaker 04:
In claim construction, he didn't think that it was just any rules, frankly, because he said the defendant's argument of phoneme sequence right phoneme at right time.

[00:30:33] Speaker 04:
Are you reading from something I can look at?

[00:30:35] Speaker 04:
Yes.

[00:30:35] Speaker 04:
A4171.

[00:30:36] Speaker 04:
It's the claim construction hearing.

[00:30:37] Speaker 04:
4171.

[00:30:40] Speaker 04:
It says, defendant's argument ignores that the claims themselves set out meaningful requirements for the first set of rules.

[00:30:47] Speaker 04:
They define morph weight set stream as a function of phoneme sequence and times associated with said phoneme sequence.

[00:30:53] Speaker 04:
So he understood that this is a meaningful notation.

[00:30:55] Speaker 04:
It wasn't just rules like JUSP with the right phoneme at the right time.

[00:31:00] Speaker 04:
And it said in A12, he says, the asserted claims do not seem to cover any and all use of rules for 3D dimensional lip synchronization.

[00:31:10] Speaker 04:
Judge Wu knew that there was more.

[00:31:12] Speaker 04:
And that's why he's found that the timing rules weren't in the prior art.

[00:31:16] Speaker 04:
If it were just putting the right phoneme at the right spot, page A17 says it's not in the prior art, that would be in the prior art.

[00:31:23] Speaker 04:
Everyone knows you put the right phoneme in the right spot.

[00:31:25] Speaker 04:
It also renders a lot of the claims language completely surproofless, including the word sequence, because you would just say phoneme and time of phoneme.

[00:31:36] Speaker 04:
In fact, you don't even need the word phoneme.

[00:31:38] Speaker 04:
You would just simply time a phoneme.

[00:31:39] Speaker 04:
Because if the phonemes are the right time, they're going to be in the right order.

[00:31:42] Speaker 04:
They'll be in the right sequence.

[00:31:43] Speaker 04:
And if they're in the wrong order, they'll be in the wrong time.

[00:31:47] Speaker 04:
They'll be in the wrong sequence.

[00:31:47] Speaker 04:
Excuse me.

[00:31:48] Speaker 04:
If they're in the wrong sequence, they'll be in the wrong order.

[00:31:50] Speaker 04:
There is not a good claim construction here which says, this just means put the right phoneme at the right time.

[00:31:55] Speaker 04:
Instead, there's a very specific genus of rules.

[00:32:00] Speaker 04:
And that genus, we claim, is you have to look at the sequence.

[00:32:03] Speaker 04:
What is near what?

[00:32:04] Speaker 04:
And you have to look at the time.

[00:32:06] Speaker 04:
how fast that group works.

[00:32:08] Speaker 04:
And that's pretty clear from the third claim element on page 11 of our reply, which explains how it's applied.

[00:32:16] Speaker 04:
You look at a group of phonemes, a subsequence, and you're looking at the group like a window looking past it as a whole to determine what's near what.

[00:32:24] Speaker 04:
If you were just looking at individual phonemes and saying what follows what, you wouldn't look at them as a group.

[00:32:29] Speaker 04:
You wouldn't look at them as a subsequence.

[00:32:32] Speaker 04:
If you wanted to know just how long each phoneme lasted,

[00:32:34] Speaker 04:
You wouldn't look at them as a subsequence.

[00:32:37] Speaker 04:
It makes that completely surproof for us.

[00:32:40] Speaker 04:
If we had invented not a process for automatically animating these figures, but an industrial process, for example, for catalyzing certain chemical reactions, we wouldn't claim necessarily every chemical compound that said use this as the catalyst and just list them in page and page and page in the appendix.

[00:32:59] Speaker 04:
You would claim it as a family, as a genus, as a group.

[00:33:04] Speaker 04:
And that's what we've done here.

[00:33:06] Speaker 04:
And in fact, if we had to list every single one, B followed by L, V followed by U, et cetera, that would make it completely unworkable.

[00:33:14] Speaker 04:
People would not be able to go through the lengthy appendices and figure out whether or not they're infringing.

[00:33:20] Speaker 04:
In the end, when you're looking at this case, the ultimate question the court is getting at when it's looking at Mayo step one and Mayo step two is, is somebody just trying to claim an abstract concept?

[00:33:32] Speaker 04:
Are they just trying to claim the principle?

[00:33:35] Speaker 04:
And that means if it's just a calculation, the Supreme Court won't let you monopolize math.

[00:33:40] Speaker 04:
If they just claim a method of organizing human activity, that's well-known.

[00:33:44] Speaker 04:
The Supreme Court's not going to let you monopolize that.

[00:33:47] Speaker 04:
And then step two goes and ferrets out the cases where someone claims just one of those abstract ideas and that has truly conventional activities, meaningless steps to trying to guide what they've done.

[00:33:59] Speaker 04:
But this has anything but just those meaningless steps

[00:34:03] Speaker 04:
for our claims.

[00:34:06] Speaker 04:
It's meaningful not just the genus we've identified, which is nowhere in the prior art that you look at the sequence, use rules based on sequence, what follows what, and timing, how the group together moves in terms of cadence, but also the specific output that you end up with a stream that's morphed weight sets and transition rules to move between them.

[00:34:26] Speaker 04:
That's nowhere in the prior art, and it can't be dismissed as conventional.

[00:34:31] Speaker 04:
This simply does not involve any of the concerns that animate the role against claiming abstract ideas that the Supreme Court has articulated.

[00:34:40] Speaker 04:
The judge simply made a mistake on this one and mixed up all the tests.

[00:34:44] Speaker 04:
The judgment of the district court should be reversed, and the case remanded for further proceedings.

[00:34:49] Speaker 04:
The court has no further questions.

[00:34:50] Speaker 03:
Thank you, counsel.

[00:34:51] Speaker 03:
We have all the arguments.

[00:34:53] Speaker 03:
We'll take them under consideration.

[00:34:54] Speaker 03:
This court stands in recess.

[00:34:58] Speaker 03:
All rise.

[00:35:04] Speaker 04:
The Honorable Court is adjourned from day to day.