[00:00:04] Speaker 01:
The next case is also self-spin soft versus Fitbit et al.

[00:00:10] Speaker 01:
18, 21, 78, 79, 81, 83, and 84.

[00:00:13] Speaker 01:
And Mr. Edmonds, again.

[00:00:15] Speaker 01:
Thank you, Your Honor.

[00:00:24] Speaker 04:
Here, the district court clearly erred.

[00:00:28] Speaker 04:
And the first clear error was,

[00:00:30] Speaker 04:
in finding that Sellspin's claims were exceptionally weak.

[00:00:33] Speaker 04:
And that's really something this court can review on its own.

[00:00:38] Speaker 04:
This court is aware of its own precedence.

[00:00:40] Speaker 04:
This court is aware of the law in this area.

[00:00:42] Speaker 04:
And including based on the discussion we've already had, which we obviously don't need to repeat, Sellspin's claims were not exceptionally weak.

[00:00:53] Speaker 04:
Two things that I'd ask the court to focus on are, which the district court just didn't was,

[00:00:59] Speaker 04:
As Judge O'Malley correctly pointed out, the district court really focused on step one and being unconvinced that... The district court was also concerned with your litigation tactics.

[00:01:13] Speaker 04:
And I'll get to that in just one moment.

[00:01:16] Speaker 04:
The district court also, a large part of the district court's opinion was just clear error in saying that these claims or these facts

[00:01:29] Speaker 04:
are just the same thing as TLI and seven other cases that were put in a footnote.

[00:01:36] Speaker 04:
And they're simply very different.

[00:01:37] Speaker 04:
In fact, Judge O'Malley already pointed out a difference between TLI.

[00:01:41] Speaker 04:
But just that false premise alone that the facts of this case and these claims are so similar to TLI or to content abstraction that the case exceptional, that's just not, that is clearly erroneous.

[00:01:57] Speaker 03:
You say the timing of your

[00:01:58] Speaker 03:
Amanda Complaint was premised on the timing of our case law.

[00:02:02] Speaker 03:
Could you have filed it earlier based on directions from us?

[00:02:10] Speaker 04:
I don't think until we read Berkamer and Atricks and then the commentary came out on that and then in a very short period of time also point out that there was a procedural issue in the court.

[00:02:24] Speaker 04:
The parties had submitted a stipulation that

[00:02:28] Speaker 04:
pleadings could be amended, but the court hadn't signed it.

[00:02:31] Speaker 04:
The court signed it three days before we made the amendment, which I think is maybe a Friday to a Monday.

[00:02:36] Speaker 04:
But it was done promptly after this new law came to our attention.

[00:02:44] Speaker 04:
And I think it's, from our perspective, atrich certainly in terms of it was something that

[00:02:54] Speaker 04:
uh... was new in something that it was our duty to add the allegations.

[00:03:02] Speaker 04:
Well you know this court's never required that that's not that shouldn't be a requirement uh... you know patents are diminishing assets they have term uh... their uh... you know this court has said before that the number of cases is not dispositive of the merits when we talk about it

[00:03:22] Speaker 02:
I know almost the first thing you said was that this case really isn't squarely controlled against you by TLI and electric power.

[00:03:31] Speaker 02:
But if it were, then isn't the only responsible thing to do to file a complaint, immediately acknowledge

[00:03:40] Speaker 02:
that you must lose in the district court, thereby saving hundreds of thousands of dollars of defense costs at that level.

[00:03:48] Speaker 02:
And we want to take it up to the Court of Appeals to try to get Federal Circuit law altered so that what we think is an eligible set of claims will be held eligible, which right now, under governing Federal Circuit law, it can't be.

[00:04:04] Speaker 02:
That's a long-winded way of saying,

[00:04:07] Speaker 02:
make it a test case where all the action takes place north of the district court.

[00:04:13] Speaker 04:
That's really changing the rules of the game after the game has been played.

[00:04:19] Speaker 04:
In this Court's precedent, when it's focused on the number of games that have been played.

[00:04:24] Speaker 04:
But I mean, in other words, the guidance provided by this Court, and for example, in EDECA, they sued a couple hundred defendants.

[00:04:35] Speaker 04:
And they were nuisance settlements.

[00:04:36] Speaker 04:
So this court could look at it and say that there's a bad motive for all these.

[00:04:40] Speaker 02:
The test case point would be true if it were a single case.

[00:04:44] Speaker 02:
So never mind that it was a number of defendants.

[00:04:47] Speaker 04:
Well, if we believed that the claims were invalid and we wanted to send it up to get it tested, then a test case would be a prudent thing to do.

[00:05:02] Speaker 04:
We didn't believe that, and there's no finding that we did.

[00:05:05] Speaker 04:
That's what in EDECA, the evidence was, that they believed the claims were invalid.

[00:05:11] Speaker 04:
That's why they were settling out for $3,000 the day before the 101 hearing, because they knew they were going to lose.

[00:05:18] Speaker 04:
But when you have a case here that has contested, legitimately contested issues, legitimately contested factual issues, it goes too far to require the filing of a test case.

[00:05:30] Speaker 03:
And we decided, Burkheimer and Atricks,

[00:05:32] Speaker 03:
after those cases, right, in terms of setting out the framework for the step two.

[00:05:38] Speaker 04:
Yeah, Berkamer, right.

[00:05:40] Speaker 04:
Berkamer, this was basically, right, so the parties weren't aware that you could rely on these factual allegations.

[00:05:49] Speaker 04:
Now, we certainly made those arguments already, but those criticized for saying, well, those are just your inferences, your drawing from the claimed invention.

[00:05:59] Speaker 04:
there's not facts to back them up.

[00:06:00] Speaker 04:
Now with ATRIX, you can actually plead those as facts.

[00:06:04] Speaker 04:
But it's not like this was epiphany that it's battery saving or that it's more efficient or the combination itself is sufficiently inventive.

[00:06:14] Speaker 04:
Those arguments were already being made.

[00:06:16] Speaker 04:
And then ATRIX came out and said that you can allege facts in the complaint, and those should be honored.

[00:06:23] Speaker 01:
Counsel, the trial judge kept on asking you or your colleague

[00:06:28] Speaker 01:
Where's the inventive concept?

[00:06:31] Speaker 01:
Back and forth, you or your colleague kept on answering, well, it's just a distillation of abstract ideas.

[00:06:45] Speaker 01:
She was frustrated.

[00:06:46] Speaker 01:
She was trying to get to the nub of the case, and she couldn't.

[00:06:51] Speaker 04:
I think where that was in the transcript was,

[00:06:55] Speaker 04:
that we were trying to show her what the claims were directed to, so then you could get to answering the question.

[00:07:03] Speaker 04:
Because if you just start from the premise that the claims are directed to acquiring, transferring, publishing data, you've already looked at it at such a high level of abstraction, it's difficult to answer the question.

[00:07:15] Speaker 04:
We were trying to point out what the claims were directed to, so then we could use that as a baseline for the discussion.

[00:07:23] Speaker 04:
And the transcript of that hearing is a little hard to follow.

[00:07:27] Speaker 04:
What you also need to look at is the submission that went with it that she was reviewing, that she let us file after the hearing, that made these very points.

[00:07:37] Speaker 04:
But the district court several times just interrupted and didn't want us to repeat what was on the presentation in front of her.

[00:07:44] Speaker 01:
They also criticized your unwillingness to stay discovering it.

[00:07:50] Speaker 04:
Well, that really does.

[00:07:52] Speaker 04:
That's another clearly erroneous assessment in the sense that the record is that self-spend responded to the defendant's request to stay by saying, Your Honor, take a look at our responsive 101 brief.

[00:08:07] Speaker 04:
It's going to be due next week.

[00:08:08] Speaker 04:
And if you're inclined to grant the motion, then you can grant the stay.

[00:08:12] Speaker 04:
If not, don't grant the stay.

[00:08:14] Speaker 04:
And the court didn't grant the stay.

[00:08:16] Speaker 04:
She allowed it.

[00:08:21] Speaker 04:
You know, it's hard to say that there's anything improper or overly aggressive about saying, just take a look at our responsive brief before you make the decision.

[00:08:33] Speaker 01:
The Supreme Court has told us that there's an abuse of discretion standard on exceptional case misconduct.

[00:08:44] Speaker 01:
And we weren't there.

[00:08:45] Speaker 01:
And she was.

[00:08:47] Speaker 01:
And so don't we need to give

[00:08:50] Speaker 01:
a lot of deference to her finding.

[00:08:52] Speaker 04:
Well, there should be zero deference to her finding that the claims were exceptionally weak, because that's really an issue of 101 that this court is uniquely positioned to decide.

[00:09:05] Speaker 04:
As far as self-spend's conduct, she didn't find that there was litigation misconduct.

[00:09:11] Speaker 04:
She just vaguely said, it contributed to my holding.

[00:09:14] Speaker 04:
If the 101 holding is reversed, then the 285 holding should clearly be reversed.

[00:09:20] Speaker 04:
The things she did rely on were the timing of the complaint.

[00:09:25] Speaker 04:
And that was just clearly erroneous.

[00:09:27] Speaker 04:
As the court's seen, it was within three days of when amendments were allowed under her order, and that it was within a couple of weeks after Berkamer and Atricks.

[00:09:38] Speaker 04:
There's just nothing improper or even that contributes to exceptionality for counsel doing their job in heeding new case law

[00:09:49] Speaker 04:
and making filings in accordance with that.

[00:09:52] Speaker 04:
Her observation or finding contributed that Self-Spend didn't agree to state discovery.

[00:10:02] Speaker 04:
Clearly erroneous.

[00:10:03] Speaker 04:
Self-Spend said, Your Honor, take a look at our response before you decide whether to say discovery, if it looks like you're going to grant it, then state discovery.

[00:10:12] Speaker 04:
Ultimately, when we went to the 101 hearing, her reaction was negative, and we agreed to state discovery.

[00:10:19] Speaker 04:
It's just there is just no plausible set of facts.

[00:10:24] Speaker 04:
Those are the facts.

[00:10:26] Speaker 04:
Those are the facts that are laid out for the court.

[00:10:28] Speaker 04:
And those conclusions based on that are just clearly erroneous.

[00:10:31] Speaker 01:
I'll reserve the rest of my time, Your Honor.

[00:10:49] Speaker 00:
May I please the court?

[00:10:51] Speaker 00:
Atrix is not a license to rewrite a patent.

[00:10:56] Speaker 00:
After the Atrix decision came out, there was an amended complaint filed by Selspin.

[00:11:02] Speaker 00:
But what that amended complaint did was take the arguments that Selspin had made in opposition to our motion to dismiss and import them, lift them whole cloth, and place them in the amended complaint.

[00:11:13] Speaker 03:
Well, that's not what the trial court

[00:11:15] Speaker 03:
focused on.

[00:11:16] Speaker 03:
The trial court said the timing of the motion to amend was bad.

[00:11:19] Speaker 03:
But he's right.

[00:11:22] Speaker 03:
A, it was right after our court's decisions in Berkheimer and Atrix.

[00:11:26] Speaker 03:
And B, it was within the bounds of what the court allowed.

[00:11:29] Speaker 03:
So the court didn't say, I didn't like the amended complaint.

[00:11:33] Speaker 03:
But the court said, I didn't like the timing of the amended complaint.

[00:11:35] Speaker 03:
So how does that support a 285 finding?

[00:11:38] Speaker 00:
Well, there's actually two things to that, Your Honor.

[00:11:39] Speaker 00:
First, she did not like the amended complaint because she said these allegations

[00:11:45] Speaker 00:
have been pulled out of thin air, that they're not tied to the specification.

[00:11:48] Speaker 03:
Again, this goes back to what we said before.

[00:11:50] Speaker 03:
She didn't apply Berkheimer properly, and she didn't apply Atrix properly.

[00:11:54] Speaker 03:
So she was wrong to say that they had to be called out, that those exact same things had to be stated in the specification.

[00:12:00] Speaker 03:
And she was wrong to say that Berkheimer has no meaning at the motion to dismiss stage.

[00:12:06] Speaker 03:
So if those were the grounds for Fomerit's assessment, then how can that support a 285 final?

[00:12:13] Speaker 00:
So let me take them both in turn.

[00:12:15] Speaker 00:
First, Atrix.

[00:12:16] Speaker 00:
Now, in Atrix, there was the issue of the data file, the inventive data file.

[00:12:21] Speaker 00:
And this court found that there were allegations in the complaint that were tied to the specification because the specification explained how this was unconventional.

[00:12:31] Speaker 00:
This particular data file was inventive.

[00:12:34] Speaker 00:
And the defendants in that case even conceded that there is nothing in the specification that says that this data file is conventional.

[00:12:42] Speaker 00:
That's not the case here.

[00:12:43] Speaker 00:
But here, what they've alleged as inventive, the specific techniques that Judge Toronto was asking about, this polling or this cryptographic encryption, none of that is described in the specification with any kind of specificity, such that we would know when the inventors applied for their patent and disclosed what they invented, they were supposed to tell us what they invented.

[00:13:07] Speaker 00:
They didn't say anything about battery.

[00:13:09] Speaker 00:
They didn't say anything about this polling.

[00:13:12] Speaker 03:
What she said was, and this goes back to the merits, but what she said was, you can't claim a benefit if that benefit is not expressly stated in the specification period.

[00:13:24] Speaker 03:
And that is wrong under Adrian's, right?

[00:13:27] Speaker 00:
Well, that would be wrong.

[00:13:28] Speaker 03:
And that was her basis for a 285?

[00:13:31] Speaker 03:
So the problem is to say, and she never looked at step two in the 285 analysis.

[00:13:37] Speaker 03:
Right?

[00:13:38] Speaker 00:
No, she did, Your Honor.

[00:13:39] Speaker 00:
And actually, I want to... No, she didn't.

[00:13:40] Speaker 03:
She only looked at step one.

[00:13:41] Speaker 00:
No, she talked about step two.

[00:13:43] Speaker 00:
And if we look at her opinion... In the 285 opinion?

[00:13:46] Speaker 00:
No, in the 285 opinion, she did not, Your Honor.

[00:13:48] Speaker 03:
We have to look at these things and we have to determine the basis upon which she said sanctions were appropriate.

[00:13:55] Speaker 03:
She said sanctions are appropriate here because this is clearly an abstract idea.

[00:13:58] Speaker 03:
Period.

[00:13:59] Speaker 03:
Step one, full stop.

[00:14:02] Speaker 00:
Well, but she didn't say sanctions were appropriate.

[00:14:04] Speaker 00:
285 is not about sanctions.

[00:14:05] Speaker 00:
It's about exceptionality.

[00:14:07] Speaker 00:
And this court held that.

[00:14:08] Speaker 03:
Exceptionality, because it's an abstract idea.

[00:14:10] Speaker 03:
That's not the end of the inquiry, though, under 101.

[00:14:12] Speaker 00:
That's true, Your Honor.

[00:14:13] Speaker 00:
But she had already issued an opinion where she addressed both step one and step two in her decision on the omnibus motion to dismiss.

[00:14:21] Speaker 00:
And in that opinion, she addressed why she thought the claims were abstract, because they were similar to the kinds of claims that a substantial precedent had dismissed for being just

[00:14:31] Speaker 00:
state of manipulation, and that the conventional things that they were pointing to had no basis in the specification.

[00:14:36] Speaker 03:
What about the fact that in the 285 ruling, she said that the Federal Circuit has said there's no presumption of validity in the 101 context, and she cites a concurring decision by Judge Mayer.

[00:14:50] Speaker 03:
I mean, this court has never said that.

[00:14:52] Speaker 00:
That's true, Your Honor.

[00:14:52] Speaker 00:
This court has never said that.

[00:14:54] Speaker 00:
She also cited a district court opinion from within her district.

[00:14:59] Speaker 00:
She said that there is no presumption of eligibility.

[00:15:02] Speaker 00:
But even if there were a presumption of eligibility, presumptions can be overcome.

[00:15:06] Speaker 00:
And in this case, these claims are so analogous to data manipulation claims in other cases where the Federal Circuit has held claims to be ineligible that they were woefully weak.

[00:15:19] Speaker 03:
I guess I'm just not sure what we do where you have a 285 decision that is premised on three or four misstatements of the law and three or four misstatements of the record.

[00:15:29] Speaker 03:
I mean, I don't know how you can fault or she could fault them for not staying discovery when the record discloses exactly what your friend on the other side described, which is they said, Judge, we don't think you need to stay discovery at this point, but we're about to file a brief.

[00:15:45] Speaker 03:
Take a look at it.

[00:15:45] Speaker 03:
And if you want to stay discovery, then go ahead.

[00:15:47] Speaker 03:
And she didn't.

[00:15:49] Speaker 03:
So how are they at fault for that?

[00:15:51] Speaker 00:
Well, they're at fault, Your Honor, because first, she's looking at the totality of the circumstances.

[00:15:55] Speaker 00:
So she's looking at everything.

[00:15:57] Speaker 00:
And for example, the timing of the amended complaint.

[00:16:00] Speaker 00:
She mentioned that the timing on its own is insufficient for exceptionality.

[00:16:04] Speaker 00:
But combined with everything else, it was a problem.

[00:16:06] Speaker 03:
And the reason- Well, if the timing was not improper, which I don't see how anyone could say it was improper.

[00:16:14] Speaker 03:
How does that get to be an add-on?

[00:16:17] Speaker 00:
And I think the timing, the reason that it was improper, Your Honor, is because it is true they submitted their amended complaint after Atrix and Berkheimer came out in February, and they submitted their complaint in March.

[00:16:28] Speaker 00:
But their amended complaint, the second one, was filed on Friday night before the Tuesday morning hearing, or Tuesday afternoon hearing.

[00:16:35] Speaker 00:
And at that hearing, opposing counsel said, we have alleged in our second amended complaint all of these benefits, all of these unconventional aspects,

[00:16:44] Speaker 00:
And therefore, you cannot grant this motion to dismiss.

[00:16:48] Speaker 00:
And her issue is that would be true if this was tied to the specification.

[00:16:53] Speaker 00:
What they did, as far as the timing.

[00:16:54] Speaker 03:
She didn't say tied to the specification.

[00:16:56] Speaker 03:
She said everything in the amended complaint had to be spelled out in the specification.

[00:17:01] Speaker 03:
So you guys have been using this phrase tied to the specification, but that's not what the court said.

[00:17:05] Speaker 00:
But there has to be some tie to the specification, Your Honor.

[00:17:08] Speaker 00:
They can't just write in their complaint

[00:17:11] Speaker 00:
All of these things were unconventional.

[00:17:13] Speaker 00:
And because they wrote that, now you can't have a 101 decision at 12b6, just because they say that it's true.

[00:17:20] Speaker 02:
They did more than just assert it.

[00:17:23] Speaker 02:
So I'm looking in particular at 2289 of the appendix, which is in their amended complaint.

[00:17:30] Speaker 02:
And this is on the HTT point.

[00:17:33] Speaker 02:
And they say in 2007, which I guess is the priority date here,

[00:17:39] Speaker 02:
Mobile phones were not using HTTP for sending data.

[00:17:44] Speaker 02:
Google and Facebook introduced using HTTP APIs later than that.

[00:17:50] Speaker 02:
And they cite some website.

[00:17:54] Speaker 00:
That's actually SelfSpin's website.

[00:17:56] Speaker 02:
SelfSpin's website.

[00:17:59] Speaker 02:
That at least has a kind of specificity to it about a particular point.

[00:18:05] Speaker 02:
What's insufficiently specific about that?

[00:18:09] Speaker 00:
That particular point is not in the claims.

[00:18:12] Speaker 00:
The claims don't require HTTP connectivity.

[00:18:15] Speaker 00:
They don't require that these mobile phones use these things.

[00:18:17] Speaker 00:
They require simply a Bluetooth-enabled capture device, and then a non-enabled device, and the transferring of data between these two devices.

[00:18:27] Speaker 02:
So as far as the claims are concerned, any way you get to the internet is just fine?

[00:18:31] Speaker 00:
That's correct, Your Honor.

[00:18:33] Speaker 00:
What they are using is Bluetooth.

[00:18:34] Speaker 00:
Bluetooth, as the specification states, was already extant at the time.

[00:18:39] Speaker 00:
of the patents, finally.

[00:18:41] Speaker 00:
And they use Bluetooth not in an unconventional way.

[00:18:43] Speaker 00:
They use Bluetooth to transfer information, transfer data between paired devices.

[00:18:48] Speaker 00:
That is precisely the conventional use of Bluetooth, is transferring data between conventional devices.

[00:18:55] Speaker 00:
So Judge Gonzalez-Rogers is looking at these claims and trying to determine what is the inventive aspect here?

[00:19:02] Speaker 00:
What is this technical improvement such that you would survive 101?

[00:19:10] Speaker 03:
Can you look at claim one?

[00:19:11] Speaker 03:
Isn't the last step of claim one, claiming the use of HTTP?

[00:19:15] Speaker 03:
I mean, how can you say it didn't claim it?

[00:19:23] Speaker 03:
Use HTTP to transfer the new data received.

[00:19:27] Speaker 00:
You're looking at claim one of this.

[00:19:29] Speaker 00:
I'm looking at claim one of the 794.

[00:19:31] Speaker 03:
Joint appendix 336.

[00:19:39] Speaker 00:
It says receiving.

[00:19:41] Speaker 02:
Different pattern.

[00:19:42] Speaker 02:
Well, there were four patterns.

[00:19:44] Speaker 02:
The very end.

[00:19:46] Speaker 02:
This is the 847, I speak.

[00:19:49] Speaker 00:
847, got it.

[00:19:53] Speaker 00:
OK.

[00:19:57] Speaker 00:
Yes, Your Honor.

[00:19:58] Speaker 00:
At the end of 847, that claim says, use HTTP to transfer the new data received over the established paired Bluetooth wireless connection.

[00:20:05] Speaker 00:
Boom.

[00:20:05] Speaker 00:
So with respect to that claim,

[00:20:07] Speaker 00:
there is HTTP, but it's using HTTP for its conventional use, the transferring of data.

[00:20:15] Speaker 02:
So now just go back to that place in the amended complaint with a couple of citations about HTTP was not being used by mobile devices at the time.

[00:20:27] Speaker 00:
Well, that's what they allege, but there's nothing in the specification that says that HTTP wasn't in use.

[00:20:32] Speaker 02:
But then we're back to this idea that any

[00:20:35] Speaker 02:
fact bearing on conventionality actually has to be affirmatively supported by the spec, which I think is not our law.

[00:20:43] Speaker 02:
If it's contradicted by the spec, that's another thing.

[00:20:46] Speaker 02:
But we don't have a situation like that.

[00:20:48] Speaker 00:
No, we don't have a situation where it's necessarily contradicted, except that there is language in the claim, in the specification, about how this method, the purported allegedly inventive method, can be used with pervasive, flexible technology.

[00:21:03] Speaker 00:
Things that were already in use at the time of the invention.

[00:21:07] Speaker 00:
Things like Bluetooth, like HTTP.

[00:21:09] Speaker 03:
The law is very clear that you can come up with new ideas that build on old things.

[00:21:15] Speaker 03:
That a different combination of old ideas is patentable.

[00:21:20] Speaker 00:
That's true, Your Honor.

[00:21:20] Speaker 00:
You can.

[00:21:21] Speaker 00:
But just because something is new doesn't mean that it's eligible for patenting if what you've come up that's new is still abstract.

[00:21:28] Speaker 00:
If you are claiming it.

[00:21:29] Speaker 03:
Well, no.

[00:21:30] Speaker 03:
It can be abstract as long as it's inventive.

[00:21:34] Speaker 00:
So then that's the step two analysis.

[00:21:35] Speaker 00:
And at that point, there's got to be something that bears on the unconventional use of these technologies.

[00:21:45] Speaker 00:
Because every technology here is just general technology.

[00:21:47] Speaker 00:
It's a general computer device.

[00:21:49] Speaker 00:
It's a general protocol for transferring data, whether it's HTTP or it's Bluetooth.

[00:21:55] Speaker 00:
It's all this general technology being used in its conventional manner, the way that you would expect it to operate.

[00:22:03] Speaker 00:
improved Bluetooth, they haven't improved a capture device, they haven't improved the mobile device, they're just saying instead of taking something and capturing it with the device and then manually having to take that data and move it to the internet incapable device, or the internet capable device, excuse me, to publish the data, instead we just do that automatically.

[00:22:25] Speaker 00:
And how do we do that automatically?

[00:22:26] Speaker 00:
We use these transfer protocols that have already been in use by the time of the invention.

[00:22:33] Speaker 00:
Judge O'Malley, you had some concern about how Judge Gonzalez-Rogers addressed Burkheimer, and specifically, I think you... Yeah, I mean, you're arguing the merits now.

[00:22:43] Speaker 03:
What I'm saying is that your friend at your own table conceded that the Burkheimer reference, that her basis for distinguishing Burkheimer was wrong, right?

[00:22:55] Speaker 03:
And that we should just ignore that.

[00:22:58] Speaker 03:
Clearly, if her basis for distinguishing Berkheimer, some of her legal basis for Primera's decision, were wrong, that has an impact on whether or not it was so obviously frivolous to bring this case.

[00:23:12] Speaker 00:
But the statement that she made may have been incorrect as far as the burden at the 12b6 stage versus summary judgment.

[00:23:18] Speaker 00:
But if you continue reading the footnote, she distinguishes Berkheimer on a different basis.

[00:23:24] Speaker 00:
So specifically, I'm looking- Well, and both of them are wrong.

[00:23:27] Speaker 00:
Well, if we look at- They're both wrong.

[00:23:29] Speaker 00:
Her statement that Berkheimer is distinguishable because that described this inventive feature that was described in the specification.

[00:23:36] Speaker 03:
Right, so they're both wrong.

[00:23:37] Speaker 03:
So she said Berkheimer doesn't apply A, because it was at the summary judgment stage, and B, because everything has to be called out in the spec in order to count.

[00:23:47] Speaker 03:
And that's not true.

[00:23:49] Speaker 03:
Because she already had Atrix at that point.

[00:23:52] Speaker 00:
That's true.

[00:23:52] Speaker 00:
She did have Atrix.

[00:23:53] Speaker 00:
But again, Your Honor, in Atrix, there was something to go back to the specification.

[00:23:57] Speaker 00:
And here, there isn't anything to go back to in the specification because what they did was take their attorney argument from the opposition and import it whole cloth into the amended complaint and say, because we've made these allegations, you can't address this issue at 12b6.

[00:24:12] Speaker 00:
And that can't be the case.

[00:24:14] Speaker 00:
We can't allow litigants to simply amend their complaint or file complaints that allege unconventionality without some kind of tie to the specification.

[00:24:23] Speaker 00:
And so she applied Octane Fitness, which is the correct law with respect to 285.

[00:24:29] Speaker 00:
She used her discretion to address the totality of the circumstances.

[00:24:33] Speaker 00:
She looked at not only the objectively weak nature of the asserted claims, but also the litigation conduct, the way that they filed things.

[00:24:43] Speaker 00:
And the timing wasn't just with the second amended complaint.

[00:24:45] Speaker 00:
The first amended complaint, they filed the day after an hour-long scheduling conference with the court, the way they had never mentioned that they intended to amend the complaint.

[00:24:54] Speaker 00:
So there were several things that the court was disturbed by.

[00:24:57] Speaker 00:
Also, their defense of the eligibility of the claims at the hearing.

[00:25:02] Speaker 00:
Opposing counsel was asked over and over again to please identify the inventive concept.

[00:25:06] Speaker 00:
And the only answer that she got was that there was this distillation from the claims or this flow.

[00:25:12] Speaker 03:
And that whole discussion related to abstract idea, not the inventive concept.

[00:25:15] Speaker 00:
That's true, Your Honor.

[00:25:17] Speaker 03:
So you're mischaracterizing that hearing exchange.

[00:25:20] Speaker 00:
Well, no, Your Honor, because she asked specifically what in this patent teaches these... What's not abstract is what she said.

[00:25:27] Speaker 00:
What's not abstract, but also what is taught by this patent such that there would be something inventive.

[00:25:32] Speaker 00:
And there wasn't an answer, at least not a satisfactory answer to the court.

[00:25:36] Speaker 00:
And so in her discretion, she took all of these things in mind and made her decision.

[00:25:41] Speaker 00:
And therefore, because she did not abuse her discretion, we asked this court to affirm her decision and uphold the exceptionality of this case.

[00:25:49] Speaker 01:
Thank you, Mr. Bonilla.

[00:25:51] Speaker 01:
Mr. Edmonds has some rebuttal time if he needs it.

[00:25:55] Speaker 04:
Thank you, Your Honor.

[00:26:01] Speaker 04:
One thing to really focus on is, and it's on Appendix 6006, which was just critical to the 285 finding, was that CellSpin, quote, ignored substantial precedent dismissing analogous data manipulation patent claims.

[00:26:17] Speaker 04:
And it references TLI.

[00:26:19] Speaker 04:
And the footnote below it references seven more.

[00:26:22] Speaker 04:
There's just simply no, if you look at the claims in those, this court is very good at that.

[00:26:29] Speaker 04:
When litigants come up and they say, well, our case is like this one.

[00:26:33] Speaker 04:
You have to look at the claims.

[00:26:34] Speaker 04:
And there's just simply no basis for her to conclude that those claims are analogous.

[00:26:42] Speaker 04:
They're all very, very different claims.

[00:26:45] Speaker 04:
And what she was likening it to was, like in inventor Holdings,

[00:26:49] Speaker 04:
to where it was a fundamental economic concept.

[00:26:51] Speaker 04:
And so it was so much like Alice that inventor Holdings should have known better.

[00:26:58] Speaker 04:
But there's just simply nothing like that in this case.

[00:27:02] Speaker 04:
And the district court didn't support that sweeping opinion and review the case as it's simply unsupportable.

[00:27:09] Speaker 04:
That's clear error.

[00:27:10] Speaker 04:
As the court, as Your Honor Judge O'Malley pointed out, she only looked at step one.

[00:27:16] Speaker 04:
She didn't look at step two.

[00:27:18] Speaker 04:
Even if the claims were manifestly abstract under step one, that's not sufficient for a 285 holding because you have to look at step two.

[00:27:30] Speaker 04:
As this court knows, most cases that come before this court, the vast majority fail step one.

[00:27:37] Speaker 04:
And step two has to be looked at in terms of the totality of the circumstances, which she didn't do.

[00:27:44] Speaker 04:
The court had it right.

[00:27:47] Speaker 04:
wrong about this presumption of patentability.

[00:27:52] Speaker 04:
Moreover, the district court clearly erred in just disregarding the fact that the 847 claims had been allowed post-Alice and that the 766 claims, which we include in the appendix, which are very much like these claims.

[00:28:10] Speaker 04:
It's got the limitations of the paired Bluetooth

[00:28:15] Speaker 04:
um... and and uh... the the uh... uh... the event notification done with bluetooth 766 is really written at the data capture device as opposed to the mobile but those were allowed in february of of two thousand eighteen so when you look at what is a is a was a party so bad for not knowing up front that their claims were invalid

[00:28:43] Speaker 04:
one of these patents, the claims have been allowed after Alice.

[00:28:46] Speaker 04:
And other similar claims are being allowed not only after Alice, but after all these other claims.

[00:28:50] Speaker 04:
And she just ignored that.

[00:28:51] Speaker 04:
She should have at least considered it, but she got hung up on this presumption issue, which she got wrong, unfortunately.

[00:29:00] Speaker 04:
My colleague criticizes Selsman's argument at the hearing.

[00:29:05] Speaker 04:
I don't think that's a fair reading of the hearing.

[00:29:07] Speaker 04:
In any event, that wasn't a basis for the 285 ruling.

[00:29:10] Speaker 04:
My colleague

[00:29:13] Speaker 04:
criticizes the content of the complaint and says that it shouldn't be given weight.

[00:29:21] Speaker 04:
That wasn't part of the 285 ruling either.

[00:29:23] Speaker 04:
It was just the timing, which we've already addressed.

[00:29:26] Speaker 04:
My colleague talked about what distinguishes this case is that things are called as conventional.

[00:29:39] Speaker 04:
And we pointed out in our brief, it talks about it can be implemented

[00:29:43] Speaker 04:
in pervasive technologies, but not with pervasive technologies.

[00:29:47] Speaker 04:
It's very clear the specification is saying that there is an invention here, and as the Court correctly said, you can put together building blocks, even if some of those building blocks were combinations, and there's nothing exceptional about that.

[00:30:02] Speaker 04:
What we have is, even in it led over to the 285 discussion, there's a dispute between the parties over what's conventional

[00:30:11] Speaker 04:
There's a dispute between the parties as to whether the combination is conventional.

[00:30:16] Speaker 04:
There's a dispute between the parties as to what the benefits are.

[00:30:20] Speaker 04:
There's a dispute between the parties of what's inventive.

[00:30:23] Speaker 04:
And the appellees can't even defend the 285 without trying to get into those disputes and put their spin on it.

[00:30:33] Speaker 04:
But all those facts should have been in reviewed and in self-spin's favor.

[00:30:40] Speaker 04:
And at a minimum, it illustrates that when you have good faith, substantial factual disputes between the parties in a complicated area, that that's not exceptional.

[00:30:52] Speaker 04:
And certainly, there's nothing about the conduct of the case that would lend to an exceptionality finding.

[00:30:58] Speaker 01:
Thank you, Mr. Redmond.

[00:30:59] Speaker 01:
We appreciate your argument.

[00:31:00] Speaker 01:
The case is submitted.

[00:31:01] Speaker 04:
Thank you, Your Honor.