[00:00:52] Speaker 02:
Our final case for argument two zero one nine dash one five one one baggage airline guest services versus roadie ink Mr.. Stein, please proceed Thank you your honor My name is Stefan Stein and to my right is my associate Cole Carlson and Behind him is my other associate William Stein

[00:01:20] Speaker 00:
We are with the law firm in Florida of Gray Robinson, and we're here on behalf of the appellant.

[00:01:28] Speaker 00:
May it please the court?

[00:01:31] Speaker 00:
The district court's decision granting the 12C motion was flawed because the decision was predicated upon labeling the claim limitation, selection to hold delivery, as well as nine other limitations

[00:01:50] Speaker 00:
of Representative Claim 7 as being individually abstract without considering whether their interrelated functionalities as a whole was directed to an abstract idea.

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We contend that the decision was flawed because Alice cautioned against reducing each claim element

[00:02:18] Speaker 00:
to individual abstract ideas, because that would in effect render just about every patent ineligible.

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And moreover, in our case, the limitation of selection to hold delivery was the very limitation that was added during the prosecution.

[00:02:44] Speaker 00:
render the claims substantively allowable over three pieces of prior art that were being applied and also to render the claims patent eligible under 101 which I might add at this point that the 101 rejection during prosecution started before Alice and the last one ended after Alice post Alice and the

[00:03:14] Speaker 00:
Addition of selection to hold delivery was found to satisfy substantively and from an abstract idea standpoint To render the patent allowable and therefore it issued The selection to hold discovery to hold this deliberate alone by itself As well as in combination with the nine other limitations

[00:03:44] Speaker 00:
do cite particular ways of communicating information to coordinate and monitor baggage delivery.

[00:03:55] Speaker 00:
The trial court simply jumped to the conclusion that all the limitations in claim seven could be done using a telephone and then concluded that the claim was directed to an abstract idea under the first prong of the Alice test.

[00:04:14] Speaker 00:
The trial court's conclusion was not based upon any evidence or expert witness testimony as should and would have occurred in the context of a motion for summary judgment or trial following appropriate fact discovery and expert witness reports and discovery.

[00:04:40] Speaker 00:
Indeed, I'm sure we all have had nightmare stories of dealing with trying to reclaim lost luggage.

[00:04:49] Speaker 00:
Hollywood has produced comedies, many movies about lost luggage.

[00:04:57] Speaker 00:
The one that comes to mind is Meet the Parents with Ben Stiller.

[00:05:05] Speaker 00:
Simply telephoning someone at the airline is not always the solution.

[00:05:11] Speaker 00:
Else, there would not be any nightmare stories to deal with.

[00:05:17] Speaker 00:
However, none of that, whether it's good or bad, demonstrating how quick and easy or how difficult it is to recover lost luggage by a telephone call to the airline is not in the record.

[00:05:38] Speaker 00:
The only evidence that's in the record is what is intrinsic, which is the patent itself, with a background of the invention description, alluding to a telephone.

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But nothing in the patent specification, nor in its file history, which is also part of the intrinsic record,

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admits that these additional limitations were well understood, routine, and conventional.

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All they have, all the appellee has, is the background of the invention.

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And there's nothing in the background of the invention that the judge

[00:06:35] Speaker 00:
the trial court could have understood to reach the conclusion of being well understood, routine, and conventional.

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Selection to hold delivery is an example of a claim element that cannot be accomplished by using an old-fashioned telephone by simply calling someone at the airline.

[00:07:00] Speaker 00:
Selection to hold delivery may arguably be subject to different interpretations

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Hence the need for a markman, which we did not have.

[00:07:12] Speaker 00:
Interpret it very narrowly.

[00:07:16] Speaker 00:
Maybe the claims are valid under Alice, but not infringed.

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Conversely, interpreting them too broadly, maybe it is directed to an abstract idea and is invalid under Alice.

[00:07:36] Speaker 00:
But in any event, the record is devoid of any evidence relating to either scenario.

[00:07:44] Speaker 04:
Mr. Stein, how do you say a broad interpretation could possibly result in invalidity or non-patentable subject matter under Alice?

[00:07:55] Speaker 00:
Well, I hate to say that, but to be fair, I had to present both arguments.

[00:08:01] Speaker 00:
If the interpretation was so broad that it meant nothing more than the preamble of the claim, which is essentially what the district court said, then it would be easy or easier to find it directed to an abstract idea.

[00:08:18] Speaker 00:
But as we know from Alice, we are not supposed to examine the claim with such granularity that we look at each claim element

[00:08:31] Speaker 00:
and conclude that each claim element is an abstract idea because, as I said before, nothing would be palpable.

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We have to look at it in context of what was well-insterred, conventional, and non-routine.

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And we have to look at the whole thing.

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So in our case, much like the precedent that we had before us,

[00:08:59] Speaker 00:
um, atrix, the others, we have a very, very detailed claim.

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The appellee would argue that we basically do nothing but put a period after the preamble.

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We don't interpret it that broadly.

[00:09:17] Speaker 00:
We interpret it to mean exactly what it says literally and our

[00:09:25] Speaker 00:
Argument from day one has been that the case is going to revolve around What selection to hold delivery means?

[00:09:34] Speaker 00:
What is the scope of that term?

[00:09:37] Speaker 00:
in the patent the selection to hold delivery Feature is talked about in the drawings and the specification as having a drop-down box Where the passenger that has lost the luggage?

[00:09:54] Speaker 00:
Clip 30 click on a drop-down box and say 30 minute delay or six 60 minute delay or for whatever The infringing system being sold by roadie does not have a drop-down box It does have a selection and the selection allows the passenger to call the driver Through the server has called for and claim one

[00:10:24] Speaker 00:
Claim 17 and reschedule before filing suit we did a trap sale basically Where we had a package delivered from my house to my out my house and midstream I changed the library Well in my mind that did both it changed many of the parameters that related to the delivery parameters and

[00:10:54] Speaker 00:
And then after the case, after we filed the case, Rhodey complained that we didn't specifically change the delivery time.

[00:11:08] Speaker 00:
So we did another trap sale, which was actually Mr. Stein flew to Atlanta for no reason, came back and lost his luggage.

[00:11:23] Speaker 00:
had it scheduled to be delivered to the office, and then specifically changed the time of the delivery.

[00:11:32] Speaker 00:
Same location, but different time.

[00:11:36] Speaker 00:
And they still complain there's no infringement.

[00:11:40] Speaker 00:
In fact, that begs the root of the problem here, is that under Alice, the abstract idea, reasoning, the basis for Alice

[00:11:52] Speaker 00:
is that we don't want the patent system to be construed so broadly that it forecloses competition by keeping somebody out of a big field.

[00:12:06] Speaker 00:
Well, here, that's not the case.

[00:12:09] Speaker 00:
Rhodey is hotly contesting infringement.

[00:12:14] Speaker 00:
And we believe they are infringing for the reasons just explained.

[00:12:22] Speaker 00:
That just goes to show you that there is no preemption.

[00:12:27] Speaker 00:
There's no preemption in the baggage delivery business.

[00:12:33] Speaker 00:
There happen to be predominantly two competitors, us and them, but there's no preemption.

[00:12:39] Speaker 00:
They and anyone can get into the field by simply not having the functionality of selecting the whole delivery.

[00:12:51] Speaker 00:
There's no preemption whatsoever.

[00:12:54] Speaker 00:
So if they want to go to trial and rely on their defense that there's no infringement, fine, let's go to trial.

[00:13:04] Speaker 00:
But Judge Andrews short-circuited that because we didn't get into any discovery.

[00:13:11] Speaker 00:
We started part of the Markman determination, and we identified words in the claims that we had agreed to, which actually were most of them.

[00:13:21] Speaker 00:
I think it was document 66 in the pleadings.

[00:13:27] Speaker 00:
And if you look at the agreed upon terms, they were very specific.

[00:13:34] Speaker 00:
Passenger, deliverer, very specific.

[00:13:38] Speaker 00:
What was in dispute was the selection to hold delivery.

[00:13:46] Speaker 00:
Well.

[00:13:47] Speaker 00:
We would have fought about that at the appropriate time when we would have had the markman hearing during before Judge Andrews, but we didn't get that far because we granted this motion Mr.. Stein you're using your rebuttal time.

[00:14:00] Speaker 00:
Do you want to save any I do I think I have two minutes left correct, okay?

[00:14:06] Speaker 00:
So your honor rebuttal time I know okay our position is quite simply is that we should not have been cut short and

[00:14:16] Speaker 00:
We should have been allowed to at least go through the Markman determination and trial.

[00:14:25] Speaker 00:
And fundamentally, there's no evidence in the record except for the intrinsic record as to what was common, understood, routine, and conventional.

[00:14:38] Speaker 00:
Thank you.

[00:14:40] Speaker 02:
Thank you, Mr. Stein, Mr. Pennington.

[00:14:52] Speaker 01:
May it please the court, Edward Pennington for Appalachian Roadie.

[00:14:59] Speaker 01:
Let me say, first of all, there are a couple things that seem to be confused, and I could go back and reverse order.

[00:15:09] Speaker 01:
One is, this case went through discovery.

[00:15:12] Speaker 01:
We actually went through quite a bit of discovery in this case.

[00:15:19] Speaker 01:
I'm not sure why we're talking about infringement today, but as long as we're on the topic, we filed a dispositive motion on infringement alleging that they did no pre-filing investigation.

[00:15:29] Speaker 01:
We clearly don't infringe both the 101 motion.

[00:15:33] Speaker 03:
I think the reason for the discussion of infringement was to show that if you're right about your infringement position, then the scope of what is preempted by their patent is at least narrow enough to allow you to compete.

[00:15:48] Speaker 01:
Your Honor, if that's the argument, if they're saying that we don't need to be here, if they're going to concede, we don't infringe.

[00:15:55] Speaker 03:
They're not going to concede it, but I think that was the point.

[00:15:59] Speaker 01:
Well, I don't know, Your Honor.

[00:16:01] Speaker 01:
I would say that that argument does not eliminate the preemption argument.

[00:16:09] Speaker 01:
We don't have to be preempted, number one.

[00:16:12] Speaker 01:
We have other reasons for this case to end right here.

[00:16:18] Speaker 01:
The first thing I want to bring up, Your Honor, is that we're here on appeal of a judgment on the pleadings, 12C.

[00:16:34] Speaker 01:
And all the court did there was construe or to go through the two-step process under Alice.

[00:16:41] Speaker 01:
That's what we're here to look at.

[00:16:42] Speaker 01:
And in that process, the court

[00:16:46] Speaker 01:
determined that the claim, claim seven, was directed to an abstract idea.

[00:16:52] Speaker 01:
So on review, the first thing that this court is asked to do is consider whether that was error.

[00:17:00] Speaker 03:
And can you remind me what discussion in the district court, I use the discussion, loosely so that you can say everything that might fall under that term, was there about claim construction?

[00:17:15] Speaker 03:
Were there specific arguments that this claim term means x, and you said no, it means y, and so on?

[00:17:24] Speaker 01:
Yeah, and that goes to one fundamental thing.

[00:17:29] Speaker 01:
The opposition said that there was no claim to construction, but there was.

[00:17:33] Speaker 01:
Your Honor, this motion was coming up for argument at the same time we were to have a hearing on Markman.

[00:17:39] Speaker 01:
We had briefed Markman.

[00:17:41] Speaker 01:
We had done all but argue Markman.

[00:17:45] Speaker 01:
And so right before the judge issued his opinion on 101, he canceled our argument on demarcment.

[00:17:54] Speaker 01:
So it was fully brief, ready to go to argument.

[00:17:57] Speaker 01:
He canceled the oral argument.

[00:17:59] Speaker 01:
And about a week or two later, he issued the 101.

[00:18:02] Speaker 01:
In the 101, he specifically construed what it meant to the term selection to hold means.

[00:18:11] Speaker 01:
And he held.

[00:18:13] Speaker 01:
He construed it.

[00:18:14] Speaker 01:
It's in his opinion.

[00:18:16] Speaker 01:
He said it means, well, first of all, he said the parties disagree on what it means.

[00:18:21] Speaker 01:
So he gave them the benefit of the doubt.

[00:18:24] Speaker 01:
And he construed it to mean sending a communication to the deliverer via the server to change delivery time.

[00:18:32] Speaker 01:
That is his construction.

[00:18:34] Speaker 01:
That is claimed construction.

[00:18:36] Speaker 01:
So the statement that there was no construction is absolutely wrong.

[00:18:40] Speaker 03:
Did Judge Andrews rely on any construction other than ones either adopted or assumed that the plaintiff proposed?

[00:18:52] Speaker 03:
Did he reject any claim construction?

[00:18:55] Speaker 01:
No.

[00:18:56] Speaker 01:
All he did in his opinion was to say that the parties disagree on this one issue about what this means, probably because the other side was focused on

[00:19:10] Speaker 01:
that particular limitation.

[00:19:14] Speaker 01:
And what the judge said was that that does nothing to get over step one or step two, that all you're doing is adding another abstract idea to an abstract idea.

[00:19:26] Speaker 01:
All you're doing is saying, don't pick up the luggage yet.

[00:19:29] Speaker 01:
I'm not ready.

[00:19:31] Speaker 01:
And what the judge in the district court said was that this has been done for years.

[00:19:38] Speaker 01:
And as far as what the intrinsic evidence is, if you go to the background section, which is Appendix 28, there's not much there, but it describes everything they're doing.

[00:19:50] Speaker 01:
And that's what's wrong with this patent.

[00:19:53] Speaker 01:
There's just not anything there.

[00:19:55] Speaker 01:
In the background section of this patent, it describes the whole process of your baggage going somewhere where you're not and calls being made to say, where's my bags?

[00:20:05] Speaker 01:
Come pick it up.

[00:20:06] Speaker 01:
call a taxi to deliver it.

[00:20:09] Speaker 01:
All of this involves, in the prior art, it involves phones.

[00:20:15] Speaker 01:
If you look at what they say in the patent is their hardware, they have a server and they have two phones.

[00:20:22] Speaker 01:
They have two devices that are held by the passenger is one and the deliverer is the other.

[00:20:30] Speaker 01:
And those are, they go into

[00:20:33] Speaker 01:
a description in the patent about how that can be anything.

[00:20:36] Speaker 01:
It can be a computer, it can be a notepad, it can be any computing device.

[00:20:41] Speaker 01:
No special computing device whatsoever.

[00:20:45] Speaker 01:
No special software.

[00:20:46] Speaker 01:
If you look in the patent, there's nothing about the programming, no language, nothing in the hardware, nothing in the software.

[00:20:53] Speaker 01:
Everything that is done in that claim is done

[00:20:57] Speaker 01:
in the prior art.

[00:20:58] Speaker 01:
And that's not much, but it's not much in the patent claim.

[00:21:02] Speaker 01:
If you look at the patent claim itself, what the judge did at the district court level is he said, look, all it's doing is telling you to do things that you could have done by the phone.

[00:21:13] Speaker 01:
And all this really is is an app.

[00:21:15] Speaker 01:
That sort of mimics a phone.

[00:21:17] Speaker 01:
Instead of you talking to me, you might be sending me a text, or you might have an interface that says, OK, it's coming, or whatever.

[00:21:25] Speaker 01:
There's just nothing there.

[00:21:26] Speaker 01:
There's no special computers.

[00:21:28] Speaker 01:
There's no special hardware connection, networking, anything.

[00:21:35] Speaker 01:
There's nothing here that you could say is different from what was done in the prior art.

[00:21:41] Speaker 01:
As far as the judge's determination that this is an abstract idea, he specifically referred to his claim construction

[00:21:50] Speaker 01:
on the selection to hold and what it meant.

[00:21:54] Speaker 01:
He construed it and he said that didn't do it.

[00:21:57] Speaker 01:
That did not do enough and you just add the abstract idea of telling you, telling the server to don't pick it up yet because I'm not there.

[00:22:07] Speaker 01:
If you look in the background section it even says in the prior art

[00:22:11] Speaker 01:
that the deliverer would call the passenger.

[00:22:15] Speaker 01:
And why would he call the passenger?

[00:22:17] Speaker 01:
To see if he was there.

[00:22:18] Speaker 01:
It even says he called to see if he was there.

[00:22:21] Speaker 01:
Why is he doing that?

[00:22:22] Speaker 01:
To see if he should deliver it or not.

[00:22:25] Speaker 01:
It's all just another way of saying what's already been out there.

[00:22:29] Speaker 01:
And if anything, Your Honor, the court probably looked at this and said, yeah, we've all done this.

[00:22:35] Speaker 01:
We've all been there.

[00:22:36] Speaker 01:
We've all traveled and had bags not follow us.

[00:22:39] Speaker 01:
We've all made calls.

[00:22:41] Speaker 01:
had to deal with the airlines and it's the same kind of thing that's in this one claim and this is only one claim

[00:22:49] Speaker 01:
that we're dealing with.

[00:22:50] Speaker 01:
It's representative.

[00:22:51] Speaker 01:
They did not argue at the district court in their motion that there were dependent claims that did anything different or that the other independent claims did anything differently.

[00:23:01] Speaker 01:
So there's no question that this is the representative claim seven is the only thing we're looking at.

[00:23:06] Speaker 01:
And when you look at that claim, the claim language there is 100% completely functional.

[00:23:12] Speaker 01:
All it does is it talks about setting things up for delivery.

[00:23:17] Speaker 01:
It doesn't talk about how it does it, other than indirectly it says there's a computing device for each person.

[00:23:27] Speaker 01:
One of these, Your Honor, everybody has one, and we've had them for a long time.

[00:23:31] Speaker 01:
So there's nothing unique here that's in the claims.

[00:23:34] Speaker 01:
In terms of what the judge also did, in addition to finding that this was an abstract idea, he also found that there was nothing else in step two

[00:23:45] Speaker 01:
that pulled this out of the realm of just an abstract idea.

[00:23:49] Speaker 01:
There was no inventive concept that was added to this.

[00:23:53] Speaker 01:
He said, and this is where the judge made what you could call factual findings.

[00:24:02] Speaker 01:
There's nothing different.

[00:24:03] Speaker 01:
There's nothing unique.

[00:24:04] Speaker 01:
This is conventional.

[00:24:07] Speaker 01:
Just go back to the background section and see that this is being done for a long time.

[00:24:12] Speaker 01:
You're not adding anything different

[00:24:14] Speaker 01:
And therefore, I'm finding that there's nothing here that pushes this into the inventive concept.

[00:24:21] Speaker 01:
That is a factual finding that's reviewed as opposed to the deference that you would give for the ultimate finding of 101 patent eligibility.

[00:24:41] Speaker 01:
The other things that I could bring up, Your Honor,

[00:24:45] Speaker 01:
The nine things that they were talking about, I think they're- They're not gonna go through all nine.

[00:24:51] Speaker 01:
Yeah.

[00:24:52] Speaker 01:
I'm not, some of them were not raised at the district court level.

[00:24:56] Speaker 01:
They were raised here for the first time.

[00:24:59] Speaker 01:
This expert discovery, Your Honor, I just, again, the issue is one of law.

[00:25:10] Speaker 01:
We've actually had fact discovery already.

[00:25:14] Speaker 01:
This case has been going on a lot longer than anybody wanted it to.

[00:25:18] Speaker 01:
It started in Florida.

[00:25:19] Speaker 01:
We moved it to Delaware.

[00:25:22] Speaker 01:
The motion has been pending for a long time.

[00:25:25] Speaker 01:
We got a ruling.

[00:25:27] Speaker 01:
There was no ruling on the non-infringement motion, but we believe that that would have gone our way as well.

[00:25:42] Speaker 01:
I can't find anything, Your Honor, that would support any notion that this is anything but an abstract idea.

[00:25:52] Speaker 01:
The case law, there's plenty of case law that says that if all you're doing is something that you normally did in the past, but you're now doing it with a computer, that's not going to push you out of the realm of an abstract idea.

[00:26:05] Speaker 01:
And the cases that we cite in there support that notion.

[00:26:12] Speaker 01:
I don't know if you had any other specific questions, but, you know, the idea that these were very specific claims, the claims don't have anything in it, but Claim 7 doesn't have anything but a server.

[00:26:38] Speaker 01:
It says that I'm doing these steps with a server.

[00:26:42] Speaker 01:
And then I'm communicating with a computing device held by a traveler or the passenger and the deliverer.

[00:26:50] Speaker 01:
It doesn't say how.

[00:26:52] Speaker 01:
It's just it could have been a phone call.

[00:26:54] Speaker 01:
It doesn't say by text.

[00:26:56] Speaker 01:
It doesn't say how it's programmed.

[00:26:59] Speaker 01:
The pull down menus, those kind of details are not in the claims whatsoever.

[00:27:05] Speaker 01:
And we're only dealing with claim seven.

[00:27:09] Speaker 01:
With that, I would reserve, actually, unless you have any other questions.

[00:27:14] Speaker 02:
Thank you, Mr. Pennington.

[00:27:15] Speaker 02:
Mr. Stein has some rebuttal time.

[00:27:17] Speaker 00:
Thank you.

[00:27:22] Speaker 00:
Minute 30.

[00:27:26] Speaker 00:
I believe it was just stated that the judge made some factual findings.

[00:27:29] Speaker 00:
I don't know how that could possibly happen in connection with the 12C motion.

[00:27:34] Speaker 00:
And certainly, counsel is not a person skilled in the art.

[00:27:38] Speaker 00:
to have represented anything to the trial court.

[00:27:43] Speaker 02:
Well, if I understood his argument, it was that it was based on express statements in the background section of the patent and the prosecution history.

[00:27:50] Speaker 02:
And we have held that courts can consider those statements in assessing whether there's inventive concepts.

[00:27:56] Speaker 00:
Absolutely.

[00:27:57] Speaker 00:
That's part of the intrinsic evidence.

[00:27:58] Speaker 00:
And if you look at their chart that they had submitted in our chart,

[00:28:06] Speaker 00:
Our corrected reply brief we address that Beginning on page 14 to explain why there's a lot of something more there Than just what's in the background there's nothing in the background about transceivers and and servers and the other physical components and all this all The physical components that make this possible

[00:28:36] Speaker 00:
Your honor, we believe that this case is exactly on all fours with Atrix that you're familiar with, and as well as Berkheimer that you're familiar with.

[00:28:54] Speaker 00:
This was just done prematurely.

[00:28:57] Speaker 00:
We should have gone through a full markment hearing.

[00:29:02] Speaker 00:
Then it might have been a summary judgment motion, but we wouldn't be here in this context.

[00:29:06] Speaker 00:
We have a valuable patent that's made a lot of money.

[00:29:09] Speaker 00:
The company just sold for tens of millions of dollars.

[00:29:14] Speaker 00:
It's a big industry.

[00:29:16] Speaker 00:
And we were cut short.

[00:29:19] Speaker 00:
And our patent was declared invalid.

[00:29:22] Speaker 02:
OK, Mr. Stein, we're beyond our time.

[00:29:24] Speaker 02:
So I think that'll conclude our argument for today.

[00:29:27] Speaker 02:
We thank both counsel.

[00:29:28] Speaker 02:
The case is taken under submission.

[00:29:35] Speaker ?:
tomorrow morning at 10 o'clock a.m.