[00:00:31] Speaker 04:
The final case this morning is number 191149, Cardionet LLC versus Infobionic Inc.

[00:00:45] Speaker 04:
Ms.

[00:00:45] Speaker 04:
Fukuda?

[00:00:53] Speaker 00:
Good morning, Your Honor.

[00:00:54] Speaker 00:
May it please the Court, Ching Lee Fukuda, on behalf of Appellant Cardionet and Framar.

[00:01:00] Speaker 00:
Excuse me.

[00:01:02] Speaker 00:
There is a presumption of eligibility for patents that can only be overturned by clear and convincing evidence.

[00:01:09] Speaker 00:
Here, the district court, at a motion on the pleadings, a motion to dismiss on the pleadings, took into account no evidence to suggest that, one, the claims are directed to an abstract idea, two, that there is a lack of inventive concept

[00:01:27] Speaker 00:
when the patent itself specifically lays out the various improvements that this specific cardiac monitoring device has over the prior art.

[00:01:38] Speaker 04:
And what are those?

[00:01:39] Speaker 00:
So one example is an improvement in the accuracy of electronic cardiac monitoring devices.

[00:01:46] Speaker 00:
What this specific device does is to look at, identify premature ventricular beats, takes that into consideration,

[00:01:57] Speaker 00:
And that has an impact on this machine being able to determine accurately whether there's the existence of atrial fibrillation or atrial flutter.

[00:02:07] Speaker 00:
That is an improvement over the prior art devices, which there was a general understanding, as the patent had set forward, that atrial fibrillation, or rather premature ventricular beats, is generally seen as being irrelevant to atrial fibrillation.

[00:02:23] Speaker 00:
But what this invention does

[00:02:25] Speaker 00:
is it says, no, you need to look at the premature ventricular beats.

[00:02:29] Speaker 04:
Well, it was common to look at the premature ventricular beats, right?

[00:02:33] Speaker 00:
There is no evidence of that, Your Honor.

[00:02:35] Speaker 04:
Well, isn't that the case?

[00:02:38] Speaker 00:
What we have to do is we have to look at what the record puts forward.

[00:02:42] Speaker 04:
But answer my question.

[00:02:46] Speaker 04:
Was it not common to look at premature ventricular beats?

[00:02:49] Speaker 04:
Maybe not in the way that this

[00:02:52] Speaker 04:
the dependent claims here describe.

[00:02:54] Speaker 04:
But it was common to do that, right?

[00:02:57] Speaker 00:
Whether premature ventricular beats have been looked at in the past as some sort of arrhythmia, yes, Your Honor.

[00:03:02] Speaker 00:
But wait, just for a second.

[00:03:05] Speaker 01:
Is there any record evidence to show that?

[00:03:10] Speaker 01:
To show, for example, the district court in its opinion says multiple times that this is simply a technique that doctors have used for ages.

[00:03:20] Speaker 01:
Do you know of any evidence to support that?

[00:03:23] Speaker 00:
There is no such evidence whatsoever put forward in front of the district court.

[00:03:27] Speaker 00:
All we have here are Infobionics attorney arguments, conclusory arguments, unsupported by evidence that this is what doctors do.

[00:03:39] Speaker 04:
So if I understand, let's talk about claim one.

[00:03:42] Speaker 04:
As I understand it, and there's a claim construction issue here, the claim is not

[00:03:50] Speaker 04:
Perfectly drafted, but as I understand it from What is it footnote 13 in the district court's decision?

[00:03:57] Speaker 00:
There's an agreement that Ventricular beats here means premature That is correct your honor the in fact the in the patent itself in column 9 lines 10 to 12 says ventricular beats ie premature ventricular beats and

[00:04:19] Speaker 00:
So that was agreed on by the parties and adopted by the court for this purpose.

[00:04:23] Speaker 04:
So what claim one tells us is that you look at, when it talks about beats generally, it means regular ventricular beats, right?

[00:04:37] Speaker 00:
A beat detector, yes.

[00:04:38] Speaker 04:
And then when it talks about

[00:04:40] Speaker 04:
ventricular beats it means premature ventricular beats.

[00:04:44] Speaker 00:
Yes, Your Honor.

[00:04:45] Speaker 04:
So what claim one tells you to do is to take into account premature ventricular beats in making this comparison between the standard ventricular beats, right?

[00:05:01] Speaker 00:
What claim one tells you to do in the elements is that you have to look at the premature ventricular beats and that has an impact on whether

[00:05:11] Speaker 00:
there is atrial fibrillation or atrial flutter.

[00:05:13] Speaker 01:
Are you also looking at the R to R?

[00:05:15] Speaker 01:
Are the premature ventricular beats, is that something that's different than looking at the successive timing of the R to R intervals?

[00:05:23] Speaker 00:
So the ventricular beats or premature ventricular beats will detect where your R peak is, right?

[00:05:30] Speaker 00:
And so if you have an arrhythmia, then you're going to have

[00:05:34] Speaker 00:
No, arrhythmia.

[00:05:35] Speaker 01:
There's a lot of different kinds of arrhythmias, right?

[00:05:37] Speaker 01:
That's correct.

[00:05:38] Speaker 01:
So which arrhythmia are you talking about?

[00:05:40] Speaker 01:
Because your claim is talking about two specific ones, atrial fibrillation, atrial flutter, not others, right?

[00:05:46] Speaker 00:
For this particular limitation, for this particular set of claims, yes.

[00:05:49] Speaker 00:
We're talking about those two specific arrhythmias.

[00:05:52] Speaker 01:
And is the ventricular beat, is that used so that you can determine more accurately whether it's atrial fibrillation or a flutter?

[00:06:02] Speaker 01:
as compared to, say, ventricular defibrillation?

[00:06:05] Speaker 01:
I mean, or ventricular, I'm sorry, fibrillation.

[00:06:10] Speaker 00:
Yes, Your Honor.

[00:06:11] Speaker 00:
So you can look at ventricular beats or premature ventricular beats and use that for diagnosis of some other types of arrhythmia, like ventricular tachycardia, where your beats are very, very quickly in succession.

[00:06:23] Speaker 00:
But here, this invention says having premature ventricular beats gives you an indication

[00:06:31] Speaker 00:
that you are not having atrial fibrillation.

[00:06:34] Speaker 00:
So it puts it together in this specific context.

[00:06:37] Speaker 00:
Well, not in claim one, right?

[00:06:39] Speaker 00:
Yes, Your Honor, in claim one.

[00:06:41] Speaker 04:
How does it do that in claim one?

[00:06:43] Speaker 00:
So claim one says, if you look at the fourth element,

[00:06:48] Speaker 00:
It has a relevance determination logic to identify a relevance of the variability in the beat to beat timing to at least one of atrial fibrillation and atrial flutter.

[00:06:59] Speaker 00:
And then in the next element, the fifth one, we refer back to that relevance.

[00:07:04] Speaker 00:
The fifth element says an event generator to generate an event when the variability in the beat to beat timing is identified as relevant to at least one of atrial fibrillation and atrial flutter.

[00:07:16] Speaker 00:
in light of the variability in the B2B timing caused by ventricular beats identified by ventricular beats.

[00:07:24] Speaker 04:
So that's just saying take into account the premature ventricular beats in making the comparison for the regular beats, right?

[00:07:32] Speaker 00:
It's more than that, Your Honor.

[00:07:34] Speaker 00:
You must read this claim in the context of the entire patent.

[00:07:37] Speaker 00:
What the patent teaches you is that

[00:07:39] Speaker 00:
You have to look at the premature ventricular beats, and it needs to have an impact on whether this machine determines that there is an AF episode.

[00:07:51] Speaker 01:
Do you have a dependent claim also that is more specific to this?

[00:07:55] Speaker 00:
Yes.

[00:07:56] Speaker 00:
So dependent claim two adds the additional limitation that says, wearing the relevance determination logic

[00:08:05] Speaker 00:
is to accommodate variability in the beat-to-beat timing caused by the ventricular beats by weighting ventricular beats as being negatively indicative of one of atrial fibrillation or atrial flutter.

[00:08:17] Speaker 00:
So claim two further narrows how you use the premature ventricular beats and says you're actually going to weight it as negatively indicative.

[00:08:27] Speaker 01:
Do you think any of these claim limitations are written in 126 paragraph format, even though they don't use the traditional means plus function language?

[00:08:38] Speaker 00:
So from a claim construction perspective, at this point, these claims are not using the word means.

[00:08:45] Speaker 00:
And traditionally, that's not interpreted to mean a means plus function limitation.

[00:08:49] Speaker 00:
But what it is bound by is it is bound by the description of the specification

[00:08:54] Speaker 00:
on what, for example, what in light of premature ventricular beats mean.

[00:08:59] Speaker 04:
Is that interpreted by the district court?

[00:09:03] Speaker 00:
It was not, Your Honor.

[00:09:05] Speaker 04:
Yeah, so maybe there's a claim construction issue here that hasn't been addressed.

[00:09:09] Speaker 00:
That is one issue here.

[00:09:11] Speaker 00:
And what the district court did, I think the more significant issue here, Your Honor, is that the district court based its finding of an eligibility

[00:09:22] Speaker 00:
on absolutely no evidence.

[00:09:24] Speaker 00:
There are factual determinations that need to be made here on what was done by doctors.

[00:09:29] Speaker 00:
What exactly did they do?

[00:09:30] Speaker 00:
Did they negatively weight this premature ventricular beats in their diagnosis of atrial fibrillation?

[00:09:37] Speaker 00:
And the other thing that the district court doesn't do is it doesn't address the fact that we're not talking about how a doctor diagnoses this.

[00:09:45] Speaker 00:
We're talking about an electronic cardiac monitoring device.

[00:09:48] Speaker 01:
So you're saying there's a presumption by the court

[00:09:52] Speaker 01:
And it's actually in the red briefs as well about how doctors did this before.

[00:09:57] Speaker 01:
And this is simply now saying, do this on a computer.

[00:09:59] Speaker 01:
And your contention is that that's not the true facts?

[00:10:03] Speaker 01:
I mean, do I understand what you're saying?

[00:10:05] Speaker 00:
That's absolutely right, Your Honor.

[00:10:07] Speaker 00:
So that argument was put forward by Infobionic that this is how doctors have always done it with absolutely no evidence that doctors have done this.

[00:10:16] Speaker 00:
And then once the court accepts that, then Infobionic says, all this does is do it on a computer.

[00:10:21] Speaker 00:
And even if you pass that hurdle, the problem with this set of claims is that this presents what this court has referred to as a technological solution to a technological problem or a computer solution to a computer problem.

[00:10:35] Speaker 00:
And what I mean by that is when you read these claims and you read it in the context of the patent, what it's doing is they're improving the accuracy of electronic devices.

[00:10:45] Speaker 00:
It's different from what doctors do.

[00:10:47] Speaker 01:
How many different?

[00:10:50] Speaker 01:
heart conditions about could there be?

[00:10:53] Speaker 01:
Does the specification include any discussion of the different possible arrhythmias that a person could have that you're detecting from when you determine if there's afibrillation and aflutter?

[00:11:06] Speaker 00:
I believe that there's well over a dozen different arrhythmias.

[00:11:10] Speaker 00:
And one example that the specification mentions is in column 9, lines 16 to 18,

[00:11:18] Speaker 00:
where actually we'll start at line 15 where it says, the occurrence of ventricular beats here, premature ventricular beats, is generally unrelated to AF.

[00:11:28] Speaker 00:
For example, the occurrence of ventricular beats can be used to identify ventricular tachycardia, e.g.

[00:11:34] Speaker 00:
when there are three or more consecutive ventricular beats.

[00:11:37] Speaker 00:
So that's one example of a different arrhythmia.

[00:11:39] Speaker 00:
And you would look at premature ventricular beats to identify whether there's ventricular tachycardia.

[00:11:46] Speaker 00:
My understanding, just from having litigated in this field, is that there's probably more than a dozen types of ruthenium.

[00:11:57] Speaker 04:
OK.

[00:11:57] Speaker 04:
Do you want to save your time for rebuttal?

[00:11:59] Speaker 00:
Yes.

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

[00:12:13] Speaker 04:
Let me tell you the problem I have.

[00:12:15] Speaker 04:
In a lot of these one-on-one cases, we have a patent specification which describes to us what the prior art is and what people did before and what's new and different about this.

[00:12:30] Speaker 04:
And I read this specification and I don't find that basic information.

[00:12:37] Speaker 04:
And the contention from

[00:12:40] Speaker 04:
opposing counsel is that there needs to be a record here to determine questions of what was well known, what was routine and conventional, which is something that we can't tell from the patent itself.

[00:12:58] Speaker 04:
Why isn't there some merit to that?

[00:13:00] Speaker 03:
Well, I was struck by the same thing, Your Honor.

[00:13:02] Speaker 03:
And looking in column three, it lays out what it purports are the benefits, including things like increased accuracy.

[00:13:09] Speaker 03:
But what I was struck by was the same thing, that it didn't describe how that was any sort of a technological improvement over prior art systems.

[00:13:16] Speaker 03:
Typically, you look at cases like this.

[00:13:17] Speaker 01:
Do you don't think that the ability to more accurately identify whether someone's having a particular heart condition, you don't think that's an improvement?

[00:13:26] Speaker 01:
That's not a technological improvement in your view?

[00:13:28] Speaker 03:
Absolutely not, Your Honor, for the following reason.

[00:13:30] Speaker 03:
What this patent boils down to, and this goes to Your Honor's question as well, are basic steps of collecting data, analyzing data, and presenting data.

[00:13:40] Speaker 01:
And we've seen this in a number of- It's specific data, and it's for a purpose of detecting a particular condition.

[00:13:49] Speaker 01:
And let's assume for a minute that all those advantages, because I think we're supposed to, in this procedural posture, we're supposed to assume that all the stated advantages

[00:13:58] Speaker 01:
that are in the patent, we have to assume that they're true, right?

[00:14:00] Speaker 01:
They're correct?

[00:14:02] Speaker 03:
We have to assume those statements are true.

[00:14:03] Speaker 03:
We don't have to assume that they're tied to the claims.

[00:14:06] Speaker 03:
And that's one of the things I would point out, is that these advantages that are put forth, the patent doesn't specify what features in the claims provide those advantages.

[00:14:16] Speaker 03:
And so you look at a case like Atrix.

[00:14:18] Speaker 03:
There, there were very detailed allegations in the complaint, which I should note here, the amended complaint.

[00:14:24] Speaker 03:
They had an opportunity to amend.

[00:14:25] Speaker 03:
They didn't add anything about 101, unlike Atrix.

[00:14:29] Speaker 03:
Also, in the specification in Atrix, there was a detailed discussion of why is this a technological improvement?

[00:14:35] Speaker 03:
What are the features?

[00:14:36] Speaker 03:
The particular data file, how is it different from prior?

[00:14:39] Speaker 01:
What about the detection of the premature ventricular beat and how

[00:14:47] Speaker 01:
That was not previously done before.

[00:14:49] Speaker 01:
And how that, in turn, has resulted in more accurate detection.

[00:14:55] Speaker 03:
Well, so a couple of responses to your honor.

[00:14:58] Speaker 03:
First, I think there is evidence in the record that doctors did rely on premature ventricular beats.

[00:15:05] Speaker 01:
I would love to see that.

[00:15:06] Speaker 03:
I would point your honor to a couple of places.

[00:15:09] Speaker 03:
One, in the patent itself, at column one, and this doesn't get us all the way there, I'll admit, but column one, lines 27 and 28.

[00:15:17] Speaker 03:
What we have there is a description of the background, and it's describing a fib and a flood.

[00:15:22] Speaker 03:
And it recognizes there that that can have some relationship to premature ventricular beats.

[00:15:28] Speaker 03:
So there's one example.

[00:15:29] Speaker 01:
But that's not saying that there's a device that takes this into account or that anybody previously took this into account.

[00:15:35] Speaker 03:
No, it does not.

[00:15:36] Speaker 03:
But what it does say is that it's the type of thing that doctors would look at.

[00:15:41] Speaker 01:
It doesn't say that.

[00:15:44] Speaker 03:
We know from counsel's argument that doctors can identify premature ventricular beads just by looking at an EKG.

[00:15:53] Speaker 01:
Where is that in the record?

[00:15:54] Speaker 03:
I would point, Your Honor, to A185 and A192.

[00:16:01] Speaker 03:
And at A185, and this is from a publication cited on the face of the patent, it says that doctors can visually identify from EGH.

[00:16:11] Speaker 01:
Are you allowed to look at prior art that's cited on the patent and then analyze it?

[00:16:17] Speaker 01:
in the context of a motion to dismiss on the pleadings?

[00:16:20] Speaker 01:
I think so.

[00:16:20] Speaker 03:
And there's been no contention by the other side that we can't.

[00:16:23] Speaker 03:
I mean, it was never rejected to, never suggested that it wasn't part of the intrinsic record, being that it's one of the contents that was examined by the agency.

[00:16:33] Speaker 03:
So I think that's conceded that we can look at that.

[00:16:36] Speaker 01:
That's a legal question, though, right?

[00:16:39] Speaker 03:
I think in this context, ultimately, I guess- I don't think you can concede that.

[00:16:44] Speaker 01:
I could be wrong.

[00:16:45] Speaker 01:
I'm not saying you're wrong.

[00:16:47] Speaker 01:
It occurs to me that that's a lot to look at when you're talking about motion on the pleadings.

[00:16:52] Speaker 03:
Here's where I'm ultimately going.

[00:16:54] Speaker 03:
It's not going to matter that there's no evidence here, but I want to answer your honor's question about where is the evidence.

[00:16:58] Speaker 04:
Where on this page do we find this evidence?

[00:17:01] Speaker 03:
So on page 185, if you look at paragraph 8,

[00:17:06] Speaker 03:
You'll see there it says doctors can visually identify ventricular beats.

[00:17:12] Speaker 01:
So I don't think that's... We're in page, I'm sorry, appendix page 185 paragraph 8.

[00:17:16] Speaker 02:
Yes.

[00:17:23] Speaker 02:
Is that what you get, the paragraph that you're doing?

[00:17:27] Speaker 01:
Yes, that's that paragraph.

[00:17:28] Speaker 01:
It says, PACs and PVCs and other arrhythmias can be visually identified by trained medical care.

[00:17:34] Speaker 01:
Where does this talk about atrial fibrillation or atrial flutter?

[00:17:38] Speaker 03:
So if you go up into paragraph 6, it's talking about distinguishing all these different types of arrhythmias, including AF and AFL.

[00:17:46] Speaker 01:
So from the paragraph 6, I'm supposed to infer when it says that trained medical care can

[00:17:52] Speaker 01:
Identify PACs and PVCs and then generically says other arrhythmias.

[00:17:57] Speaker 01:
I should understand that that includes all of those ever mentioned above No, sorry just to be clear.

[00:18:02] Speaker 03:
I'm just this is for the proposition that doctors can recognize premature ventricular beats That's it, but it doesn't say premature ventricular beats It says premature ventricular contractions.

[00:18:14] Speaker 03:
I believe that's referring to premature ventricular beats.

[00:18:16] Speaker 03:
Oh, that's it.

[00:18:17] Speaker 03:
That's PVC and

[00:18:19] Speaker 03:
And so then I would just turn over to page 192 of the appendix, and this is going to flesh this out a little bit more.

[00:18:27] Speaker 03:
On 192 of paragraph 74, what we have here is a description of a system that does the following.

[00:18:35] Speaker 03:
It considers the differences in the beats, particular including, I'm sorry, paragraph 74.

[00:18:44] Speaker 03:
So we have a system that computes the variation in the beat to beat variation difference, the R to R, and that's the same thing we've got here.

[00:18:52] Speaker 03:
And it takes this difference in ventricular rate variability into account to discriminate between certain other arrhythmias and atrial fibrillation.

[00:19:03] Speaker 03:
So there's an actual system that takes into account ventricular beats in determining whether there's AF.

[00:19:11] Speaker 03:
Ultimately, though, however, I want to emphasize this point, and this is crucial.

[00:19:14] Speaker 03:
What is your point?

[00:19:16] Speaker 03:
Ultimately, where I'm going with this, and I referenced it earlier, is that the eligibility determination in this case doesn't depend on whether these exact claims were done in the prior art or by doctors.

[00:19:29] Speaker 01:
You said previously you were going to show us how the record shows that doctors previously could look and determine

[00:19:36] Speaker 01:
and used premature ventricular beat to determine whether somebody was having an atrial fibrillation.

[00:19:41] Speaker 01:
I just don't see that in the text that you've provided here.

[00:19:45] Speaker 03:
So the final thing I would point to is an admission that the patentee made below at A515.

[00:19:58] Speaker 03:
And I think, hopefully, this will, to some degree, tie it all together.

[00:20:08] Speaker 03:
And I'm looking at, in particular, lines 18 through 21.

[00:20:12] Speaker 03:
And it says, when a doctor looks at a set of EKGs, they can look at the QRS complex.

[00:20:22] Speaker 03:
They can look at the ventricular beats.

[00:20:25] Speaker 03:
They know what it looks like.

[00:20:26] Speaker 03:
And they can attribute properly what associates with what.

[00:20:30] Speaker 01:
What does that mean?

[00:20:32] Speaker 01:
I mean, I understand a doctor can look at EKGs and can look at a QRS complex.

[00:20:37] Speaker 01:
They can look at ventricular beats.

[00:20:39] Speaker 03:
Right?

[00:20:41] Speaker 01:
Right.

[00:20:42] Speaker 01:
But what does that tell me about whether a doctor can look at that and say, you have atrial fibrillation.

[00:20:48] Speaker 01:
You have atrial flutter.

[00:20:50] Speaker 03:
I think what it shows is that these, and this is in the context of discussing the patents and how they're supposedly different from what a doctor did.

[00:20:58] Speaker 03:
But it shows, what it emphasizes, I think, I'm sorry.

[00:21:02] Speaker 01:
That's all right.

[00:21:02] Speaker 01:
Go ahead.

[00:21:03] Speaker 01:
Go ahead.

[00:21:03] Speaker 01:
I didn't mean to.

[00:21:04] Speaker 03:
What it emphasizes at least.

[00:21:05] Speaker 01:
I mean, the problem I'm having is that there's an assumption that you're talking about comparing it to what a doctor did as compared to what previous devices did.

[00:21:16] Speaker 03:
So I think in both cases, and again, at paragraph 74, there was a device that we submit considered the ventricular beats in deciding AF.

[00:21:24] Speaker 04:
But again.

[00:21:25] Speaker 04:
When you say considered the ventricular beats, you mean the premature ventricular beats?

[00:21:29] Speaker 03:
Yes.

[00:21:30] Speaker 03:
Yes.

[00:21:31] Speaker 03:
But ultimately, what this boils down to is the mental processes.

[00:21:36] Speaker 03:
So when we talk about what a doctor could do.

[00:21:38] Speaker 04:
OK, but why wouldn't it be better to do this on a more complete record?

[00:21:45] Speaker 04:
I mean, you say this was taken into account by doctors.

[00:21:51] Speaker 04:
If that's not true, if the patentee here came up with the idea of considering premature ventricular beats

[00:22:05] Speaker 04:
variability of the regular beats.

[00:22:08] Speaker 04:
Maybe that would be a patent-eligible invention, but sitting here, we really don't know whether the thing that they're claiming, for example, in claim one or even in the other claims was something that was well-known or not well-known.

[00:22:24] Speaker 04:
You're asking us to make a determination that something was well-known based on some scattered references in these

[00:22:32] Speaker 04:
other patents, I take it that your position is that it was well known.

[00:22:36] Speaker 03:
We think it was, but the more important point is that it doesn't matter.

[00:22:41] Speaker 03:
For example, in the SAP case, there you had a situation where someone... I'm not sure that I understand why it would matter.

[00:22:48] Speaker 04:
If this were the first time that someone had said, well, in making this variability comparison about, let's say, the regular ventricular beats, the first time that somebody had discovered that

[00:23:01] Speaker 04:
You should also take account of the premature ventricular beats and factor that in.

[00:23:06] Speaker 04:
If that was something new, maybe this would be different.

[00:23:09] Speaker 03:
So what this court said in SAP, and this will answer your question, if what you are purporting is the advance, the technological advance, is in fact an abstract concept, it doesn't matter whether it's brilliant, innovative, completely new.

[00:23:25] Speaker 03:
That's what this court said in SAP, and it was echoing the Supreme Court in Myriad.

[00:23:29] Speaker 03:
And what that shows is the three things they've identified as the purported advances.

[00:23:35] Speaker 03:
One, take some physiological data, reach some conclusions about that physiological data, which is the kind of mental thing that doctors have always done.

[00:23:43] Speaker 01:
One of the problems is that you have a difficult situation where the patent mentions all sorts of advantages.

[00:23:51] Speaker 01:
And those should have been taken into account by the district court.

[00:23:55] Speaker 01:
If you're saying it doesn't matter that the invention's novel at all, but you're saying it's not a technological improvement when the patent itself says that it more accurately diagnoses whether a person has a particular condition, namely atrial fibrillation or atrial flutter.

[00:24:12] Speaker 01:
So why doesn't that make it concrete and not abstract?

[00:24:17] Speaker 03:
So the patents in the following cases all said they had

[00:24:21] Speaker 03:
technological advances, SAP, fair warning, electric power, and a host of others.

[00:24:27] Speaker 01:
But this court said that those weren't technological advantages.

[00:24:31] Speaker 01:
Exactly.

[00:24:32] Speaker 03:
And it did so on the pleading or as a matter of law.

[00:24:35] Speaker 03:
So in fair warning, for example, it was looking at health records, applying certain rules.

[00:24:41] Speaker 04:
There's no question that you can do it as a matter of law.

[00:24:45] Speaker 04:
when the patent itself gives you the information that is necessary to make that determination.

[00:24:53] Speaker 04:
But I guess the problem is here that I don't see this patent as telling us that it was well known to take into account the premature ventricular beats.

[00:25:05] Speaker 04:
It may have been.

[00:25:06] Speaker 04:
You may be right about that.

[00:25:09] Speaker 04:
And if you are, then this may well be abstract.

[00:25:13] Speaker 04:
Without the data, you're asking us, it seems to me, to speculate a little bit.

[00:25:22] Speaker 03:
So I would say, let's assume that it is completely new.

[00:25:25] Speaker 03:
We think it's not, but let's assume it's completely new.

[00:25:29] Speaker 03:
Then we're squarely in the realm of fluke

[00:25:32] Speaker 03:
and SAP in all of those cases where the patentee made the same argument.

[00:25:36] Speaker 03:
There's no evidence that this was done before.

[00:25:39] Speaker 03:
There's no evidence that a machine did this before.

[00:25:42] Speaker 02:
Mr. Bell, let me take you on a slightly, if my colleagues, do you have a question?

[00:25:48] Speaker 01:
I just wanted to, if you don't mind, I just wanted one question about, I was looking at one of the references that you cited to earlier.

[00:25:55] Speaker 01:
You cited us to

[00:25:57] Speaker 01:
a particular patent that you thought was helpful in determining whether doctors had done this before.

[00:26:02] Speaker 01:
And I just wanted to ask you about paragraph 10 on page appendix 185.

[00:26:08] Speaker 01:
Sure.

[00:26:08] Speaker 01:
And there it says, these episodes of AF and AFI are difficult and not impossible to be induced and observed by a physician in tests conducted in a clinic.

[00:26:19] Speaker 01:
Doesn't that undermine the position that you're taking?

[00:26:21] Speaker 03:
No, for this reason, Your Honor.

[00:26:23] Speaker 03:
And that's the argument that my

[00:26:24] Speaker 03:
a colleague has made, what it says is it's difficult to induce and observe it in a test environment.

[00:26:31] Speaker 01:
In other words, you're not going to... Sure.

[00:26:32] Speaker 01:
I mean, I know these are intermittent problems that people have and not pervasive.

[00:26:36] Speaker 01:
Exactly.

[00:26:37] Speaker 01:
Well, that's all the more reason why it's difficult for a doctor to just observe it, right?

[00:26:42] Speaker 03:
No, not at all.

[00:26:43] Speaker 03:
Not at all.

[00:26:43] Speaker 03:
What's it saying is you wouldn't purposely give somebody an affibrillation or something like that.

[00:26:48] Speaker 03:
It's difficult to induce and observe.

[00:26:50] Speaker 01:
I can understand what you're saying, but it could also be saying it's both difficult to induce and to observe.

[00:26:55] Speaker 01:
OK, I would say.

[00:26:56] Speaker 01:
I mean, given that there's a presumption of validity and that we're in the procedural stage that we're in where we're supposed to make all inferences in favor of the patent owner, it's difficult to understand your reading.

[00:27:09] Speaker 03:
So I would say in the context of paragraphs,

[00:27:11] Speaker 03:
of six, it's talking about what a doctor could easily deduce from the ventricular beats and observe it in an EKG.

[00:27:18] Speaker 03:
And that, I think, is reflected in the patent itself.

[00:27:20] Speaker 03:
It has an EKG right there.

[00:27:23] Speaker 04:
Well, there's no question but that premature ventricular beats are shown by an EKG, right?

[00:27:29] Speaker 04:
Right.

[00:27:29] Speaker 03:
There's no question about that.

[00:27:31] Speaker 03:
And if you look at the claim language, it's exceptionally broad.

[00:27:34] Speaker 03:
It has determination logic.

[00:27:35] Speaker 03:
If I could just focus the court's attention on that.

[00:27:38] Speaker 03:
determine whether something is relevant, some physiological data is relevant, to some other condition.

[00:27:43] Speaker 03:
That's a mental process.

[00:27:44] Speaker 03:
That's what a doctor does.

[00:27:46] Speaker 03:
Even if no doctor had ever done it, this court, and I would put this claim right up against electric power, where it was all about collecting data about electrical signals from an entire power network, churning it in some way, applying certain metrics to it that were purportedly brand new, brand new metrics, like an SAP, and then finally presenting that data

[00:28:07] Speaker 03:
It doesn't ultimately matter whether that was ever done before.

[00:28:10] Speaker 03:
That's what this court has said.

[00:28:13] Speaker 01:
Sorry for taking your time, Michael.

[00:28:17] Speaker 02:
Is it fair to say that the question before us is whether the 207 patent is directed to an abstract idea and the asserted claims do not add inventive elements?

[00:28:33] Speaker 02:
Absolutely.

[00:28:34] Speaker 02:
Yes, Your Honor.

[00:28:36] Speaker 02:
So your suggestion is that what Alice directs us to is the patent.

[00:28:43] Speaker 02:
Yes.

[00:28:44] Speaker 02:
But that's not right.

[00:28:45] Speaker 02:
If you read Alice, and nobody bothers to read Alice anymore, Alice says, directed to the claims.

[00:28:55] Speaker 02:
It doesn't say anything about patents.

[00:28:58] Speaker 02:
I just suggest that to you.

[00:28:59] Speaker 02:
You might read Alice again, just to be sure I'm right.

[00:29:03] Speaker 02:
Hypothetically, if I'm right, let's look at claim one.

[00:29:08] Speaker 02:
Can you look at claim one with me?

[00:29:10] Speaker 02:
Do you have a copy of it handy?

[00:29:17] Speaker 02:
Absolutely.

[00:29:17] Speaker 02:
Would you read the opening to claim one for me?

[00:29:21] Speaker 03:
A device comprising.

[00:29:23] Speaker 02:
Stop right there.

[00:29:25] Speaker 02:
Would it be fair to say that claim one is directed to a device?

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

[00:29:32] Speaker 03:
At least recites a device.

[00:29:34] Speaker 02:
Directed to a device.

[00:29:36] Speaker 03:
Well, I just want to be careful there, because directed to is a term of art of what the ultimate underlying invention is.

[00:29:41] Speaker 02:
There's a lot of question about what directed to means.

[00:29:44] Speaker 03:
Exactly.

[00:29:44] Speaker 02:
So I just want to be careful with that.

[00:29:46] Speaker 02:
But let's take it on its face.

[00:29:47] Speaker 02:
Has claim one directed to a device?

[00:29:50] Speaker 03:
It definitely recites a device.

[00:29:52] Speaker 02:
So it would be something we could pick up in our hands.

[00:29:55] Speaker 02:
Perhaps.

[00:29:56] Speaker 02:
Perhaps not.

[00:29:57] Speaker 02:
If they ever made it, it would be a thing.

[00:30:01] Speaker 02:
And it's a device comprising a beat detector, some kind of a detector, a ventricle beat detector, again some kind of a detector, an event generator.

[00:30:13] Speaker 02:
All of these are some kind of mechanical equipment, aren't they?

[00:30:17] Speaker 03:
Not necessarily.

[00:30:18] Speaker 03:
The specification says it could be hardware or software.

[00:30:21] Speaker 03:
These could be completely soft components.

[00:30:24] Speaker 02:
A device is a soft component?

[00:30:28] Speaker 03:
A computer could be a device, and it could run all of these things.

[00:30:31] Speaker 03:
But a device?

[00:30:32] Speaker 02:
A device, it could be a computer.

[00:30:33] Speaker 02:
A device is not an idea, is it?

[00:30:37] Speaker 03:
Oh, well, Alice had apparatuses as well, Your Honor.

[00:30:40] Speaker 03:
Alice had claims, and at the end of that opinion, it looked at the apparatus claims and said, we don't put any stock in the fact that it's a physical computer.

[00:30:48] Speaker 03:
That's what Alice said.

[00:30:49] Speaker 02:
A physical computer.

[00:30:51] Speaker 02:
That was the problem in Alice.

[00:30:53] Speaker 02:
Physical apparatus.

[00:30:54] Speaker 02:
They had a big discussion about whether computers had ideas or whether computers were an idea.

[00:31:01] Speaker 02:
Let's move away from that.

[00:31:03] Speaker 02:
Just help me with one thing.

[00:31:05] Speaker 02:
If we look at only the claim,

[00:31:10] Speaker 02:
help me figure out what it's directed to, looking at just the claim, not the patent.

[00:31:16] Speaker 03:
Sure, absolutely.

[00:31:18] Speaker 03:
So if your honor looks at, and I appreciate the question, and the beat detector and the ventricular beat detector, just for clarity, the patent itself in column nine says that those are conventional off-the-shelf software pieces.

[00:31:33] Speaker 03:
Nobody disputes that.

[00:31:33] Speaker 03:
The mortara system described in

[00:31:35] Speaker 03:
OK, so that's software.

[00:31:37] Speaker 02:
OK, that's fine.

[00:31:37] Speaker 02:
Now let's move on to what?

[00:31:39] Speaker 02:
Software is a thing.

[00:31:41] Speaker 03:
It can be embodied in a device, no question.

[00:31:44] Speaker 03:
OK.

[00:31:45] Speaker 03:
So let's go on then to the determination logic.

[00:31:47] Speaker 03:
What it determines is the variability in those beats.

[00:31:51] Speaker 03:
I don't think there's any.

[00:31:53] Speaker 02:
Well, let me stop you right there.

[00:31:55] Speaker 02:
Yes, Your Honor.

[00:31:55] Speaker 02:
This patent doesn't make any sense on this claim.

[00:31:58] Speaker 02:
You've got me doing it.

[00:31:59] Speaker 02:
This claim doesn't make any sense to me.

[00:32:02] Speaker 02:
I can't figure out what all those words mean in some of those lines.

[00:32:06] Speaker 02:
But that's not our job at this point.

[00:32:08] Speaker 02:
That's a job for Section 102, 103, and 112.

[00:32:12] Speaker 02:
We're not doing that.

[00:32:14] Speaker 02:
We're doing 101.

[00:32:15] Speaker 02:
So the question is,

[00:32:17] Speaker 02:
Under 101, is this an idea or is this a thing?

[00:32:22] Speaker 03:
The underlying invention reported here is an idea in the same way it was in Alice.

[00:32:28] Speaker 03:
Alice had some very similar type of devices or components listed.

[00:32:33] Speaker 03:
Numerous cases in this court have used words that kind of sound maybe a little technical.

[00:32:37] Speaker 03:
But when you drill down and look at the claim, and thank you for the question, the claim says,

[00:32:41] Speaker 03:
The variability determination determines variability.

[00:32:45] Speaker 03:
That's functional.

[00:32:45] Speaker 02:
That's one of the elements.

[00:32:47] Speaker 02:
That's one of the elements.

[00:32:48] Speaker 02:
One of the limitations, more accurately.

[00:32:50] Speaker 02:
Limitations.

[00:32:50] Speaker 02:
One of the limitations.

[00:32:51] Speaker 02:
But it has other limitations which sound awfully non-idealike.

[00:32:57] Speaker 02:
They sound awfully thing-like.

[00:32:59] Speaker 02:
Do we ignore that?

[00:33:01] Speaker 03:
You look at what they purport.

[00:33:03] Speaker 03:
The patentee purports to be the advance.

[00:33:04] Speaker 03:
And here's all they purport is the advance.

[00:33:07] Speaker 03:
Determine AF taking into account

[00:33:11] Speaker 03:
Ventricular beats that's it and that's reflected in the claim when it says to determine the relevance Right it doesn't give you any details there, but in deciding whether you have af in that final step all it says is in light of The variability in the beats and never trick what's wrong with that?

[00:33:33] Speaker 03:
That's just a mental process That is the fact that you incorporate

[00:33:37] Speaker 03:
The fact that you put it in a box or call it a device, Alice said, you can't just do that.

[00:33:42] Speaker 03:
That's not enough.

[00:33:43] Speaker 03:
This court has set it in semantic.

[00:33:45] Speaker 03:
And three dozen cases since Alice, that just putting it in some physical form is not enough.

[00:33:53] Speaker 03:
And that's why this lines up, I would say, squarely with electric power, squarely with fair warning, and SAP.

[00:34:00] Speaker 01:
Do you think these claims are written in 1, 12, 6-paragraph format?

[00:34:05] Speaker 03:
I think they very well.

[00:34:07] Speaker 03:
They certainly smack of that.

[00:34:08] Speaker 03:
So I think if they're definite at all, I think.

[00:34:11] Speaker 01:
Well, setting definiteness aside, I want you to know you're familiar with our case on means plus function.

[00:34:16] Speaker 01:
There's a presumption if means isn't in the claim that it's not means plus function format.

[00:34:21] Speaker 01:
But that's a presumption that can be overcome rather easily.

[00:34:24] Speaker 01:
I'm just curious as to your view on whether these claims are written in 126.

[00:34:28] Speaker 03:
They certainly sound like the thing that Williamson said.

[00:34:31] Speaker 01:
Did you think about this at all?

[00:34:32] Speaker 03:
I think we have been developing that position, absolutely.

[00:34:35] Speaker 03:
And but here's the key point on that.

[00:34:37] Speaker 03:
And my friend on the other side mentioned claim construction.

[00:34:40] Speaker 03:
They were given the opportunity at least eight times to say, what is it about these claims that you would incorporate, if anything, from the specification?

[00:34:48] Speaker 03:
And then they uniformly said nothing.

[00:34:52] Speaker 03:
In A 528 to 529, they specifically said that the logic is not bound by anything except what's in the words of the

[00:35:00] Speaker 03:
the claim itself.

[00:35:02] Speaker 01:
I think what their position was right that was that once your claim construction positions are developed and then the court actually construes the claims then they thought maybe there'd be a different 101 case in front of the court.

[00:35:14] Speaker 03:
And I can understand why they would think that but this court in the my mail decision said district courts have two options.

[00:35:19] Speaker 03:
One, take what the patentee says is the claim construction and run with it and decide 101 because they're in the best position to determine what's advantageous for them at that stage or

[00:35:29] Speaker 03:
do the full-blown markup.

[00:35:32] Speaker 03:
And so that's why we see numerous cases where you accept the patentee's construction.

[00:35:37] Speaker 03:
And that's why the district court almost begged the patentee, tell me what you think it means.

[00:35:41] Speaker 03:
And we've set this out towards the end of our brief.

[00:35:43] Speaker 03:
Tell me what you think it means.

[00:35:44] Speaker 03:
And uniformly, the patentee refused to limit it.

[00:35:46] Speaker 03:
And that's why we have these very functional claims in claim one and all the rest.

[00:35:52] Speaker 04:
Well, for example, are you saying that if you claim 10

[00:36:02] Speaker 04:
the spec to see the structure that performs the nonlinear function, which I guess is figure seven.

[00:36:12] Speaker 03:
I think that would be one possibility, although it's not clear that there's much of a structure at all for the nonlinear, other than the patentee says any nonlinear function, which is simply it's not a straight line.

[00:36:23] Speaker 03:
That's math.

[00:36:24] Speaker 03:
That's SAP.

[00:36:25] Speaker 03:
If you look at the Flute case, there were very detailed equations, mathematical equations, at the appendix of that Supreme Court decision.

[00:36:33] Speaker 03:
And the Supreme Court said, let's assume that's novel.

[00:36:36] Speaker 03:
Let's assume that improves the field of petrochemical analysis.

[00:36:40] Speaker 03:
The Supreme Court said it still doesn't pass 101 because somebody can do it mentally.

[00:36:46] Speaker 03:
Not that they have, but that they can.

[00:36:48] Speaker 01:
But there's also other cases like Dear.

[00:36:50] Speaker 01:
There's cases like McRoe.

[00:36:51] Speaker 01:
There's other cases where math is involved, right?

[00:36:55] Speaker 01:
Or just because math is involved or there's an algorithm doesn't mean that it's ineligible, right?

[00:37:01] Speaker 03:
Correct.

[00:37:01] Speaker 03:
But when that is the thing that they are purporting somehow distinguishes it and makes it innovative, that's when you run into a problem.

[00:37:09] Speaker 03:
That's when you run into a problem like in SAP, Recognit Corp, and the other cases.

[00:37:13] Speaker 03:
And I think that's a useful comparison.

[00:37:16] Speaker 03:
Explain that to me.

[00:37:16] Speaker 03:
I don't understand that.

[00:37:17] Speaker 03:
Sure.

[00:37:18] Speaker 03:
So in SAP, there was an existing financial analysis system on the web.

[00:37:23] Speaker 03:
It was a web-based system.

[00:37:25] Speaker 03:
The patentee came along and said, the way you're doing that is not right.

[00:37:29] Speaker 03:
Here's a better way to do it.

[00:37:30] Speaker 03:
This is going to improve the analysis of financial market prediction.

[00:37:34] Speaker 03:
They said, here's the claim to put that in.

[00:37:38] Speaker 03:
And this court said, we don't care if it's brilliant, innovative.

[00:37:41] Speaker 01:
What about the cases I was talking about, like McRoe?

[00:37:43] Speaker 01:
So McRoe, for example, is a case where different rules and algorithms were used to create animation on a computer, as distinguished from prior ways that humans would do it, for example.

[00:37:56] Speaker 01:
And there, those claims were found eligible.

[00:37:59] Speaker 01:
I mean, how do you distinguish a case like McRoe

[00:38:02] Speaker 01:
especially on this record where there's no evidence that doctors could even use the technique in these claims to determine whether someone has this particular condition.

[00:38:12] Speaker 03:
So here's what the McCrow Court said was really important.

[00:38:16] Speaker 03:
It was the specificity of the rules that really got it over the hurdle there.

[00:38:20] Speaker 03:
And just to give you some of the flavor of that, this court said there were limited rules with a specific format, including a morph weight set stream set as a function of phoneme sequences and times and transition parameters.

[00:38:31] Speaker 03:
and many other things.

[00:38:33] Speaker 03:
The point there was there was a clear technological process of lip sync animation.

[00:38:40] Speaker 03:
That was technological.

[00:38:42] Speaker 03:
Here, we're in the medical world.

[00:38:43] Speaker 03:
And so when you hold this up against all the cases that found some sort of computer or technological advancement, I think you'll see a stark comparison.

[00:38:52] Speaker 02:
Counsel, I don't fault you for taking advantage of our precedence.

[00:38:56] Speaker 02:
I don't even want to get into that.

[00:38:58] Speaker 02:
Yes, Your Honor.

[00:39:00] Speaker 02:
Doesn't this discussion suggest to you that rather than decide these cases based on attorney argument, wouldn't we be better off if we didn't accept a 12b6 termination of a question of the validity of a patent and at least require some sort of record to come up with it?

[00:39:26] Speaker 02:
Well, I think... This was a 12B6 dismissal.

[00:39:31] Speaker 03:
Yes, it was, Your Honor.

[00:39:32] Speaker 02:
No record.

[00:39:33] Speaker 02:
Yes, it was.

[00:39:34] Speaker 02:
Nothing.

[00:39:35] Speaker 02:
Well, we know nothing about whether this thing works or doesn't work.

[00:39:39] Speaker 02:
At least I don't, because I'm not a medical scientist.

[00:39:43] Speaker 02:
Maybe you are.

[00:39:44] Speaker 04:
And the patent itself doesn't give us a lot of guidance about what was done previously and what was well known.

[00:39:52] Speaker 04:
So I think, and I apologize if I cut you off.

[00:39:56] Speaker 02:
No, that's the point.

[00:39:58] Speaker 02:
Isn't that the point?

[00:39:59] Speaker 02:
I think the trial judge was working in the dark and lawyers come up here and blow smoke and try to keep us in the dark as well.

[00:40:10] Speaker 02:
I thought the judicial process was designed to give information and to open things up, but we can't do that on a 12b6.

[00:40:20] Speaker 03:
Well, I would respectfully disagree in this case, Your Honor, because the district court did try to shed light on it.

[00:40:25] Speaker 03:
the patentee every opportunity to say what is the factual dispute here and what claim construction are you saying that will get you over the hurdle and I don't think it's unreasonable to put the patentee to that burden in the same way that the patentee has to well plead the complaint

[00:40:40] Speaker 03:
And the specification has to give you the technological advance, and so on and so forth.

[00:40:45] Speaker 03:
So whether this court decides to change the law or the Supreme Court decides to change it, we'll certainly follow it in any event.

[00:40:52] Speaker 02:
As I say, I don't fault you for doing what you do.

[00:40:55] Speaker 03:
And just to be clear, the 12 B6 and 12 C dismissals are rampant throughout this court's case law.

[00:41:02] Speaker 03:
And I think the ones most on point are SAP, fair warning,

[00:41:07] Speaker 03:
Electric power was summary judgment, but it was a matter of law, compared to cases like SRI, where there was an improved network, or FinGen, where there was an improved virus protection, or AMDOT, where there was an improved way of enhancing a data file in a distributed architecture.

[00:41:23] Speaker 03:
In column 11 here.

[00:41:24] Speaker 04:
OK, I think we're about out of time.

[00:41:26] Speaker 04:
Thank you, Your Honor.

[00:41:28] Speaker 04:
All right.

[00:41:30] Speaker 04:
Thank you, Mr. Bell.

[00:41:30] Speaker 04:
Ms.

[00:41:31] Speaker 04:
Fukuda, you have two minutes here.

[00:41:37] Speaker 00:
Thank you.

[00:41:37] Speaker 00:
So Judge Plager, I'd like to address you identifying the device.

[00:41:43] Speaker 00:
This is absolutely claims directed to a thing.

[00:41:45] Speaker 00:
And this thing here is a cardiac monitoring device, a special purpose.

[00:41:50] Speaker 00:
This is not a general purpose computer.

[00:41:52] Speaker 00:
This is a special, in fact, cardio neck, infobionic.

[00:41:55] Speaker 00:
We both make those types of devices.

[00:41:57] Speaker 00:
You wear them.

[00:41:59] Speaker 04:
But the device part of this that's described in here was well known.

[00:42:03] Speaker 04:
And the patent itself makes clear that the device part of this existed before, right?

[00:42:08] Speaker 00:
This device is not known.

[00:42:10] Speaker 00:
In fact, the invention is about.

[00:42:12] Speaker 04:
But the monitor for measuring the ventricle beats, that

[00:42:19] Speaker 04:
sort of that hardware was known, right?

[00:42:23] Speaker 00:
Certain components of it was known.

[00:42:26] Speaker 04:
Yeah, but it's the use to which it was put that is claimed to be new.

[00:42:31] Speaker 00:
It is not just the use, Your Honor.

[00:42:32] Speaker 00:
This is a device that uses certain components that were known, but when you program it with the algorithm that's claimed in these claims,

[00:42:42] Speaker 00:
It becomes a not well-known device.

[00:42:45] Speaker 00:
And it's a cardiac monitor.

[00:42:46] Speaker 00:
It's sort of like the GPS monitors.

[00:42:48] Speaker 00:
Those are not generic computers.

[00:42:50] Speaker 00:
In fact, if you look at dependent claim 10, it adds, I'm sorry, I meant dependent claim 12, which is also at issue here.

[00:42:59] Speaker 00:
It talks about this device further comprising a sensor that includes two or more body surface electrodes subject to one or more potential differences related to cardiac activity.

[00:43:10] Speaker 00:
This is a cardiac monitor.

[00:43:11] Speaker 00:
This is not a generic computer.

[00:43:13] Speaker 00:
So once you put this innovative algorithm in there, into this device, not only do you have... It's the algorithm, right?

[00:43:22] Speaker 00:
It's the algorithm implemented in this specific device.

[00:43:25] Speaker 00:
This is like the diamond versus deer situation.

[00:43:27] Speaker 00:
Even if you have a mathematical algorithm that's well known, if you use it in a specific

[00:43:32] Speaker 00:
a context limited in here.

[00:43:34] Speaker 00:
We are very limited.

[00:43:36] Speaker 00:
This does not present any of the preemption concerns.

[00:43:38] Speaker 02:
If it's well known, it would be obvious at some point, wouldn't it?

[00:43:42] Speaker 00:
Certainly, defendants can prove that if this case progresses.

[00:43:47] Speaker 00:
You get the chance to prove that.

[00:43:48] Speaker 00:
Sure.

[00:43:48] Speaker 00:
But that is a different analysis.

[00:43:50] Speaker 00:
And in fact, the precedent says that even if you identify one piece of prior art, which they tried to do here, and we haven't looked at that in detail,

[00:43:58] Speaker 00:
That's not enough to establish that it's well-known, routine, or conventional for purposes of 101.

[00:44:03] Speaker 00:
So we're nowhere near to a showing of ineligibility, much less by clear and convincing evidence.

[00:44:10] Speaker 04:
OK.

[00:44:11] Speaker 04:
All right.

[00:44:11] Speaker 04:
Thank you.

[00:44:11] Speaker 04:
The case is submitted.

[00:44:12] Speaker 04:
Thank both counsel.

[00:44:13] Speaker 04:
That concludes our session.

[00:44:33] Speaker 03:
The Honorable Court is adjourned until tomorrow morning at 10am.