[00:00:00] Speaker 03:
Our last oral argument of the morning is docket number 19-1345.

[00:00:05] Speaker 03:
Sawyer Tran versus Elevon.

[00:00:11] Speaker 02:
May it please the court, Your Honor.

[00:00:13] Speaker 02:
Tom Vitt for Appellants, US Bank, and Elevon.

[00:00:16] Speaker 02:
We ask this court to reverse the district court's judgment for two independent reasons.

[00:00:21] Speaker 02:
First, the infringement finding is based on a claim construction of said data

[00:00:26] Speaker 02:
that ignores the definition of that term.

[00:00:28] Speaker 02:
Can I ask you first, if we reverse on the 101, that's all we need to do, right?

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Either ground can independently be grounds for reversal, and you don't have to reach the other ground.

[00:00:37] Speaker 03:
That's correct.

[00:00:38] Speaker 03:
OK, so let me make sure I understand it.

[00:00:40] Speaker 03:
In that sense, your appeal on

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It's a little conditional in the sense that if we reverse on one, in your mind, we don't have to address the other.

[00:00:51] Speaker 02:
That's right, because we've won the case then.

[00:00:53] Speaker 02:
Either one would end the case and require entry of judgment in our favor.

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Because your Section 101 invalidity challenge was in the form of a counterclaim, right?

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It wasn't an affirmative defense.

[00:01:05] Speaker 02:
Well, both, Your Honor.

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It was made as an affirmative defense, and it was also stated as a counterclaim.

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But there's no remaining fact issues that would be required.

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This court can address it and would resolve the case.

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And then the second issue, of course, is the 101 issue that the Solitran patent claims an abstract idea in a way very similar to this court's prior cases.

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Unless the court has a different preference, I will propose to address the claim construction issue first and then the Section 101 issue.

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So the claim construction issue really turns on the language of the claims.

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We have a claim where the patent gives us a definition of the term said data.

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As I understand it, the district court during the Markman construed said data in a way that you would like, as in the comparison step would include the transaction amount being compared between the image of the check and the data file created.

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But then in summary judgment, the lower court seemed to change its mind on that.

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Can you explain what happened there and why there was a migration between what I think I saw the district court say during the Markman construction and then what the district court ultimately said in its summary judgment memorandum?

[00:02:27] Speaker 02:
Your honor is exactly right.

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In the claim construction order, we won the issue.

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And the court said multiple times.

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And I'm asking why.

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Why?

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Why was there a shift?

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A shift.

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The court, the only evidence we have about that is the court says that she was clarifying her order, her prior order.

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The district court did not acknowledge that this was, in fact, a reversal of the prior order.

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So it was a clarification.

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Both sides moved for summary judgment.

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We moved for summary judgment.

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thinking that we had won.

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And the other side moved for summary judgment, arguing the claim construction that the judge ultimately adopted was, in fact, in the existing order.

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But we don't think that's correct, that the court clearly construed the comparison step to require the comparison of the amount in the original Markman order.

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That's right, Your Honor.

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And that first order was the right order.

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Of course, you have de novo review.

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But the claim language requires that construction.

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We have a definition in step A that the said data includes an amount of a transaction associated with micker information.

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And then said data has to mean the same thing in the comparing step so that at least

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The comparison step has to at least include that amount.

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And that really ends the case.

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That's the definition.

[00:03:48] Speaker 01:
You're relying primarily on the plain claim language, right?

[00:03:51] Speaker 01:
We are.

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The specification seems to suggest that the best source for comparison, or most often suggests what the comparison data is, is the microdata.

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So Your Honor, actually what the specification does over and over again is talk about comparing micro information and the amount, both

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items would be compared in what's called on the specification.

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Do I understand correctly that the micro information is going to be unique for each check?

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Because it's going to have the bank routing number, the account number, and the check number.

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That's right.

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And so it would be the most natural thing to compare would be the micro information.

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But Salutran, as the master of its claim, wrote a definition of said data to

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call for a comparison of amount associated with micro information.

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That's correct, Your Honor.

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And the specification really does, over and over, talk about comparing the amount.

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So it also supports our construction that we're advocating here, Your Honor.

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So I want to turn to, if I could, the second point.

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Clean language really is clear enough by itself to require this definitional reading.

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But the file history also requires reversal.

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And that's because Salyatran asked the Patent Office

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for a claim that said comparing said image files with said data files to find matches.

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And that claim was rejected.

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But that's what the district court's order does.

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The district court says specifically it's the data file which must be compared to the digital images.

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That was the rejected claim language that patent office required

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said data to be the comparison and so reinforcing the definition.

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But I didn't see anything in the prosecution history that really drove home the idea that what the examiner was hunting for and what the patent owner agreed to was the idea that said data necessarily means we're talking about the transaction amount.

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I didn't see anything so specific as to that.

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It was more about we don't want you to say data file, we would just prefer you to say data because that lines up better and more cleanly with the claim language.

[00:05:59] Speaker 02:
Well, but that does answer the question.

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You are right, Your Honor, that the patent prosecution history does not call out this exact issue we're debating now.

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It didn't have to, because that requirement of said data is narrower than anything in the data file.

[00:06:16] Speaker 02:
Under this court's precedent under the law we cite in our brief said data has to mean the same thing in step D as it means in step A So I I do want to move on to the 101 because I see my time is passing the 101 issue There the critical issue is we have an electronic check processing patent that claims really a narrow improvement in

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where we're moving the checks from one place to another and then imaging them after crediting.

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And that patent claim, that's the concept of the invention.

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That's what the claim is directed to, that imaging after crediting.

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That's what their experts said.

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That patent claim, if you compare that to this court's decision in content extraction, in data treasury,

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and in Inventor's Holdings versus Bed Bath and Beyond, we cite three cases that are very close.

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It's financial transactions processing.

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It's check processing.

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And this case can't be conceptually distinguished.

[00:07:20] Speaker 01:
The district court emphasized the physical nature of the checks and handing them over to a third party and having them scanned.

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Are you, I think that you suggest in your brief that these other cases also have that kind of physical nature with respect to checks.

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Am I correct in remembering that?

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You're absolutely right.

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Certainly content extraction of a person is physically handling a check in a deposit slip and interacting with an ATM machine.

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Bed Bath and Beyond is even better because they're

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The person is physically going to the store, getting the code and getting documents or getting products shipped to them.

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And this imaging step.

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When you say Bed Bath and Beyond, is that inventor holdings?

[00:08:03] Speaker 02:
It is, yes.

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Yeah, I apologize.

[00:08:05] Speaker 02:
Yes, that's right, Your Honor.

[00:08:07] Speaker 02:
And in data treasury and many other cases that we cite, you can't get away from an abstract idea of these types of cases of no technology, no improvement in computers,

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And by just saying, oh, we're going to just write a clever patent and have a physical step, there are many, many cases to that effect.

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That's just not good enough.

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Is it your understanding that this claim covers an embodiment where the check scanning is still going on in the back office?

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I mean, in that sense, the paper check is literally being moved from the location of where it's being received at the point of purchase terminal.

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By the court's claim construction, it would cover the movement receiving at a different location in the back office.

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It could potentially cover that.

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Because that's already

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was a conventional step of taking paper checks and then running them back into a back office somewhere and then doing the check scanning there.

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Literally every step in the claim is conventional.

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The only advance that they claim is this delaying the imaging step.

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Everything is conventional.

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And this imaging and moving checks from one spot to another, conventional banking practice.

[00:09:26] Speaker 01:
Previously, the comparing step had been performed?

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Or no?

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The comparing step had been performed.

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performed in terms of a novelty 102 type?

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If we were in a pure novelty analysis in an electronic check processing, we did have art where there was comparison steps, but not exactly in this setting.

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But that's a conventional bank practice.

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There isn't an argument about that, that that's anything other than a conventional bank practice of reconciling two items of data.

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known to verify the content of a check, like the physical check, against a data file created at the point of purchase that collects all this data from the check.

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So this is conventional practice of reconciling.

[00:10:08] Speaker 03:
I guess if there's anything different here, it's the idea of instead of using the physical check to do that comparison and verification,

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You're using a scanned image of that paper check to do that same comparison exercise.

[00:10:24] Speaker 02:
That's right.

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You're doing a comparison with a computer of a digital image and a data file.

[00:10:28] Speaker 03:
Is there any argument from the patent owner below that that's an inventive concept?

[00:10:36] Speaker 02:
They do argue that the ordered combination is to meet step two.

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They're relying on the order.

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My argument and my question is, is it

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Did the patent owner ever argue that it's something nifty to do the verification comparison step with the scanned image of the physical check against the data file as opposed to the actual paper check?

[00:11:01] Speaker 02:
No.

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They relied purely on the ordered combination that they say is set out in step two.

[00:11:06] Speaker 03:
But when you say ordered combination, you're saying,

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they accelerate the crediting of the merchant's account before doing the check scanning exercise.

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And that's what is their kernel of inventive contribution.

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But I saw them also argue that, well, the inventors have formulated two different paths of this overall check processing method, where one path is

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occurring one place and another path is occurring in another place.

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And so therefore, there's advantages to that.

[00:11:45] Speaker 02:
So this is just exactly the core of the issue.

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The first path, the data file and the crediting of the merchant, is the prior art.

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It's conventional.

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It's in every check processing.

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The only, quote, inventive concept they claim is the exact abstract idea of itself.

[00:12:05] Speaker 02:
And it's actually the delaying of the imaging until after the crediting

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They don't speed up the crediting, Your Honor.

[00:12:10] Speaker 02:
And I see that I meant to worry about it.

[00:12:13] Speaker ?:
OK.

[00:12:13] Speaker 03:
Thanks.

[00:12:15] Speaker 03:
Here from the patent owner.

[00:12:20] Speaker 00:
Mr. Gilbertson?

[00:12:21] Speaker 00:
Yes, good morning.

[00:12:21] Speaker 00:
May it please the court?

[00:12:23] Speaker 00:
I'll follow the same sequence of argument unless the court... Can I just ask you one question?

[00:12:28] Speaker 01:
I'm sorry, I'm going to take you to 101 first, because I understood from the argument that you are only arguing step two as an ordered combination being the inventive concept.

[00:12:43] Speaker 01:
Is that correct, that that's all you've argued?

[00:12:45] Speaker 00:
Yeah, as to the inventive concept, what matters here is

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that we've got Deere in 1981 said that you can have an ordered combination that all of its constituent parts have been in common use.

[00:13:01] Speaker 00:
And that's what we have in this case is an ordered combination.

[00:13:04] Speaker 00:
We're here in front of this court three years ago having just litigated this topic of whether there's something patentable about this invention at the PTAD.

[00:13:19] Speaker 00:
And there was lots of discussion about this very point.

[00:13:21] Speaker 00:
And what we argued there, and this goes to one of the questions that your colleague asked as well a little bit earlier.

[00:13:28] Speaker 00:
But what we pointed out there was that what the Solutran inventors did is took something that everybody understood happened in a certain way and broke it apart into two different pieces that happened at two different places, two different times, by two different machines.

[00:13:45] Speaker 00:
The character of the claim

[00:13:48] Speaker 00:
Well, no, I guess you're asking about inventive concept in particular.

[00:13:52] Speaker 01:
Yeah, I'm asking about step two inventive concept and what your argument was below.

[00:13:58] Speaker 00:
Yeah, the argument below was absolutely that this is an ordered combination that didn't exist.

[00:14:04] Speaker 00:
So part of what this court's cases look at, of course, is the thing that's being offered as an inventive concept, something that was well understood, routine, or conventional.

[00:14:18] Speaker 00:
it would do great violence to the words understood and routine and conventional to use them to describe something that never existed.

[00:14:27] Speaker 03:
So can you just articulate in a sentence what's the inventive concept here?

[00:14:32] Speaker 00:
The inventive concept is the ordered combination of taking what used to happen in a single place at a single time by a single machine and break it into two different parts, two different paths, such that

[00:14:47] Speaker 00:
part of the process happens early at the merchants facility that the checks are then physically moved to a different location and another part of the process happens then at a different place different time different machine and then because Salyutran has done that because Salyutran has approached that question completely differently than anyone else had it then

[00:15:12] Speaker 00:
has to bring those things back together in step D by doing a comparing and matching process.

[00:15:17] Speaker 00:
That's the ordered combination.

[00:15:19] Speaker 03:
As I understand your background section, your background section talked about how it was already known and established in electronically processing checks at merchants' stores to create data files at the point of purchase that has all the checked data.

[00:15:41] Speaker 03:
And that you could also scan those paper checks right there at the point of purchase.

[00:15:47] Speaker 03:
Or optionally, you could do the check scanning in a back room or a back office of the merchants.

[00:15:55] Speaker 00:
It depends on what process you're trying to use.

[00:15:58] Speaker 00:
There's this back office conversion process that's most at issue with this patent.

[00:16:04] Speaker 00:
In the back office conversion process, all of that happens in the back office.

[00:16:08] Speaker 03:
Well, when I looked at your patent specification, it talks about how, in column two, how you can do the data file at the point of purchase.

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And optionally, the merchants can keep an image of the check and then

[00:16:40] Speaker 03:
An alternative method of handling the checks has been proposed by which merchants scan their checks in a back office, typically at the end of the day.

[00:16:50] Speaker 03:
So to me, that reads like the check scanning, it can happen right there at the point of purchase, or it can happen in a back room at the end of the day.

[00:17:01] Speaker 00:
And I think the thing to point out there, the thing that's helpful on that point is,

[00:17:07] Speaker 00:
The specification in the column you're talking about is discussing two different ways, two different prior art systems.

[00:17:15] Speaker 00:
So the POP system, point of purchase system that Walmart happens to use, that's a system where there's scanning that happens at the point of purchase.

[00:17:26] Speaker 00:
The context that we're in, the context that these inventors were dealing with was not the POP system.

[00:17:32] Speaker 00:
It was the back office conversion rules that were getting ready to come out.

[00:17:37] Speaker 00:
And what was understood about those rules, and this is what is stated in the specification of columns two and spills over to three, is that in that process, if anybody wanted to do back office conversion, they took the checks into the back office, and there in the back office went through the steps that the block rules required.

[00:17:59] Speaker 00:
If your honor's question is, was it known in the art generally that you could scan a check at the point of purchase?

[00:18:05] Speaker 00:
Yes, I agree.

[00:18:06] Speaker 00:
Pop did that.

[00:18:08] Speaker 00:
As to practicing back office conversion, which is the problem that these inventors were facing, the problem that these inventors were trying to come up with a solution for, that was not the case.

[00:18:17] Speaker 00:
In fact, this was a point of specificity.

[00:18:19] Speaker 01:
You're saying that back office conversion was not conventional at the time of application was filed?

[00:18:25] Speaker 00:
So back office conversion rules had come out.

[00:18:29] Speaker 00:
People were thinking about how they could apply those back-office conversion rules so that when they became effective a Bach process BoC process could be used Those rules were known.

[00:18:43] Speaker 01:
I think Judge Chen is saying that if those rules were known as he reads claim one it's pretty broad it's not limited to that scanning occurring by a third party and

[00:18:56] Speaker 01:
So therefore, you could, under the back office conversion rules, might read on claim one.

[00:19:05] Speaker 01:
I think that's what I understood him to be saying.

[00:19:09] Speaker 00:
The way people understood that you could do back office conversion before Salutran's patent came along was that you'd do all of those steps in the back office.

[00:19:19] Speaker 00:
You wouldn't infringe this patent.

[00:19:21] Speaker 00:
Because there wouldn't be the physical movement of the checks to another place to accomplish the digital image scanning and then the comparing and matching step.

[00:19:31] Speaker 01:
So it's the receiving said paper checks.

[00:19:34] Speaker 00:
Yeah.

[00:19:35] Speaker 00:
Right.

[00:19:36] Speaker 00:
And the district court specifically construed that term to require that there be movement of the checks, which is what the... Away from the point of purchase.

[00:19:46] Speaker 03:
that would encompass down the hallway into a back room.

[00:19:49] Speaker 00:
But in the back office conversion process before Salutran's invention, and this is a point we specifically debated in front of the PTAB before we came to this court the first time, and the PTAB found in our favor on this question, in the back office conversion context

[00:20:06] Speaker 00:
All of that happens in the same place.

[00:20:08] Speaker 00:
All of that happens in the back office.

[00:20:11] Speaker 00:
There's no movement of the check such that the 945 patent could be infringed.

[00:20:18] Speaker 01:
Can I ask you another question?

[00:20:19] Speaker 01:
I understand opposing counsel to be arguing that your ordered combination itself is an abstract idea.

[00:20:29] Speaker 01:
Maybe I'm misunderstanding your argument.

[00:20:32] Speaker 01:
And don't our cases hold that we're

[00:20:35] Speaker 01:
The abstract idea itself can't be the thing that you rely on for the inventive concept.

[00:20:41] Speaker 00:
Sure they do.

[00:20:42] Speaker 00:
But I don't think that that, if that's what US Bank is arguing, I don't think that that should be a successful argument here.

[00:20:50] Speaker 00:
So the jumping off point on that, of course, is what is the claimed advance?

[00:20:56] Speaker 00:
We're looking at the claim as a whole.

[00:20:57] Speaker 00:
We're trying to understand what the focus of the claimed advance was.

[00:21:00] Speaker 00:
And it could be helpful in this case that the district court identified a claimed advance that both sides explicitly agree with.

[00:21:08] Speaker 00:
So the district court at appendix pages 51 and 52 said that the 945 patent purportedly improves upon the prior art through the processing of paper checks via two paths at different times and locations and the physical movement of paper checks.

[00:21:25] Speaker 00:
That's what the district court said the claimed advance was.

[00:21:29] Speaker 03:
The way I look at the claimed advance, as described in the summary of the invention, it's the crediting of the merchant's account and provision of funds in the merchant's account at a much earlier point in time in the overall check processing exercise.

[00:21:48] Speaker 03:
And if that's the case, then the claimed advance is

[00:21:54] Speaker 03:
for merchants to be able to get their money faster.

[00:21:56] Speaker 03:
And that sounds like an abstract idea.

[00:22:01] Speaker 03:
And then when I look and try to figure out from your claimed invention to what extent has there been any improvement in the underlying check processing technology, which is something that we often look for, if not all the time we look for when we find a patent eligible claim, I don't see anything that can necessarily be regarded as an improvement

[00:22:24] Speaker 03:
the exercise of creating a data file that represents the check data or the exercise of scanning a check, that technology, I don't see anything different than that.

[00:22:36] Speaker 03:
And the crediting of a bank account, I don't think I see anything that's technically an improvement there.

[00:22:43] Speaker 03:
So I'm getting a little bit worried about the claim then if I don't see any improvement in underlying technology and I see that

[00:22:51] Speaker 03:
The heart of the invention here is trying to get merchants' accounts credited earlier in the purchase exercise.

[00:23:00] Speaker 00:
So one of the things US Bank argued vigorously was that our patent didn't get merchants their money any quicker.

[00:23:08] Speaker 00:
And if you look at the POP process at Column 2, I guess that's what I was wondering.

[00:23:12] Speaker 03:
Crediting the merchant's account at an earlier point in time, what does that mean?

[00:23:17] Speaker 03:
It just means a number is

[00:23:20] Speaker 03:
populated in the merchant's bank account, but the merchant can't actually access those funds quite yet because there still has to be, I assume, some subsequent clearance that has to happen.

[00:23:31] Speaker 00:
Well, the crediting of the account is where the merchant does have access to the money, and there is actually a lot of detail about that in the infringement side of the case.

[00:23:41] Speaker 00:
I think the way the patent puts it

[00:23:44] Speaker 00:
is that there's a combination of benefits.

[00:23:47] Speaker 00:
What's improved here is the check handling procedure itself.

[00:23:51] Speaker 00:
So I grant you that there's not a specific technical change in the way the data file is constructed or in the way the crediting occurs.

[00:24:01] Speaker 00:
And if you look at the POP process that we were talking about earlier, Judge Chen, in paragraph 2, that provides for similarly prompt crediting of an account.

[00:24:12] Speaker 00:
What this process did, the reason Solytran was able to get this patent and what it explained in its specification, was that by changing the physical process for handling the checks in the way I've described, you could get a combination of benefits.

[00:24:27] Speaker 00:
The patent starts out in the very beginning of the abstract by speaking of a method of processing paper checks that divides into two independent paths.

[00:24:36] Speaker 03:
And why does that make anything better?

[00:24:38] Speaker 00:
It makes it better because you get the combination of early crediting of the account, which the merchant's very interested in.

[00:24:46] Speaker 00:
And for example, the summary of the invention speaks of the merchant, column three, lines 58 through 65, speaks of merchants are relieved of the task, cost, and risk of scanning and destroying the paper checks themselves.

[00:25:02] Speaker 03:
So this is the outsourcing of the check scanning to a third party processor, right?

[00:25:09] Speaker 00:
It would not necessarily have to be outsourcing.

[00:25:11] Speaker 00:
You could do it all yourself as a merchant.

[00:25:13] Speaker 03:
Well, that wouldn't be an advantage.

[00:25:16] Speaker 03:
Your advantage is that you're relieving the merchant of the exercise of check scanning.

[00:25:20] Speaker 03:
You could do it either way.

[00:25:23] Speaker 01:
But you don't get the benefit, right?

[00:25:26] Speaker 01:
If the merchant has to do it, they don't get the benefit you just mentioned.

[00:25:29] Speaker 00:
Fair enough.

[00:25:30] Speaker 00:
And what the 945 patent offers is it unlocks the benefits.

[00:25:36] Speaker 03:
But where in claim one does it talk about, OK, this is all going to be done by somebody else that's not the merchant?

[00:25:45] Speaker 03:
It's drafted in this elliptical passive voice.

[00:25:51] Speaker 03:
where we are receiving data, some magic person is crediting an account, and we're receiving paper checks, scanning paper checks, and then comparing the digital image against the digital file.

[00:26:06] Speaker 00:
Claim one doesn't require that it be done by somebody other than the merchant.

[00:26:09] Speaker 00:
Claim one certainly allows that it be done by somebody other than the merchant.

[00:26:13] Speaker 00:
And what the inventors were pointing out was that that's an advantage that the merchant can get from this invention.

[00:26:19] Speaker 03:
Right.

[00:26:21] Speaker 03:
scoped down to the fact that somebody other than the merchant was doing it, then you're right.

[00:26:27] Speaker 03:
And that advantage would be captured in the claim to be right-sized in correspondence to that advantage.

[00:26:37] Speaker 00:
I think I get your honor's point.

[00:26:38] Speaker 00:
I don't take US banks' critique of this to be that there's a problem with the fact that you could outsource under this pattern, or that it's too broad because

[00:26:50] Speaker 00:
It allows for infringement by the merchant itself.

[00:26:53] Speaker 00:
The inventors came to the patent office and said, we've come up with this invention that allows for these benefits to be unlocked, that allows for this particular combination of benefits for the merchant to get those.

[00:27:08] Speaker 00:
And in order to get those, the merchant can do it in various different ways, but captures the data at its point of purchase, sends off the checks physically to someone,

[00:27:19] Speaker 00:
who performs the four steps of claim one.

[00:27:23] Speaker 00:
I'm sorry.

[00:27:23] Speaker 00:
Go ahead.

[00:27:24] Speaker 03:
When you say it sends off the checks to someone, the claims don't, just to confirm, they're not restricted to sending it off to somebody else.

[00:27:35] Speaker 00:
Is that right?

[00:27:36] Speaker 00:
They have to be sent off to someone who receives them in step C. And we know from the district court's construction that's not been challenged.

[00:27:45] Speaker 00:
that that receiving at step C is in a different place.

[00:27:48] Speaker 00:
Right.

[00:27:49] Speaker 03:
But I guess what I'm saying is that we agreed already that that could include the back office.

[00:27:56] Speaker 00:
No, because under the back office conversion process, the initial scanning of the check to check the maker data and get the transaction data is not occurring at the point of sale.

[00:28:08] Speaker 00:
It's occurring in the back office.

[00:28:09] Speaker 03:
Right.

[00:28:10] Speaker 03:
But that's the different location.

[00:28:13] Speaker 00:
Well, but the different location that we're talking about here is the difference between where the data are captured that come into play in step A, the data file that gets received, and then where the checks are received in step C. Those things have to be different.

[00:28:29] Speaker 00:
Right.

[00:28:30] Speaker 03:
Step C is the point of purchase?

[00:28:33] Speaker 00:
Step C is where the checks are received later after They've been initially scanned and the account has been credited Step C is where they're received later for image scanning that has to occur someplace else So that can't be the back office in the back office conversion rules.

[00:28:50] Speaker 01:
Thanks.

[00:28:50] Speaker 01:
I have a question I can see how the district court

[00:28:54] Speaker 01:
emphasize the physical nature of scanning the checks and sending the checks.

[00:28:59] Speaker 01:
And I can appreciate that vacuum in terms of understanding how that might connote that something's not abstract.

[00:29:06] Speaker 01:
But how do you deal with our court's precedent in cases like content extraction, inventor holdings, and

[00:29:15] Speaker 01:
I think there's one other that's mentioned in the blue brief, data treasury.

[00:29:20] Speaker 01:
How do you deal with those cases that involve similar physical activity, and yet this court said that they were directed to an abstract idea and eligible under 101?

[00:29:30] Speaker 00:
So I think it goes back to what is the focus of the claimed advance.

[00:29:35] Speaker 00:
There's a litany of cases from this court, as everyone here knows, and content extraction is a great example, where

[00:29:45] Speaker 00:
The nature of the claimed advance was in the, like in that case, for example, it was in collecting data, recognizing certain data within the collected data set, and storing that recognized data in a memory.

[00:30:00] Speaker 00:
The focus of that claimed advance in that case was about data manipulation.

[00:30:08] Speaker 00:
And as we point out in our brief, there are lots of cases where the court has focused on, has realized that the claimed advance

[00:30:16] Speaker 00:
was in data manipulation.

[00:30:18] Speaker 00:
That's not the case here.

[00:30:19] Speaker 00:
That's why the claimed advance in this case and what the district court held and all parties agree on is so significant.

[00:30:26] Speaker 00:
What's central to this claim, what's central to the 945 patent, is the physical handling of the checks.

[00:30:34] Speaker 00:
You see, for example, in the background of the invention section, the very first heading speaks of the history

[00:30:43] Speaker 00:
The history of physical, let me get it right, speaks of how paper checks were physically processed historically, so that the central nature of the claimed advance here, the focus of the claimed advance, was the physical handling of tangible objects.

[00:31:09] Speaker 00:
That's what the district court held.

[00:31:11] Speaker 00:
That's what everybody here has agreed.

[00:31:13] Speaker 00:
That can't be said of any of those other cases.

[00:31:15] Speaker 03:
Let me ask you a hypothetical.

[00:31:18] Speaker 03:
What if there were a situation where there were really important documents that businesses are handling, and they need to get those important physical documents across town?

[00:31:31] Speaker 03:
And so they've always asked their employees to somehow get across town to deliver those very important physical documents in the same day.

[00:31:40] Speaker 03:
But somebody invents bicycle messengers that can get through traffic faster.

[00:31:49] Speaker 03:
you can outsource the delivery of these important physical documents across town in the same day to this bicycle messenger service that can navigate through traffic quickly and be able to get these physical documents across town with great alacrity and special dispatch.

[00:32:11] Speaker 03:
That's a physical handling of documents, getting from point A to point B,

[00:32:16] Speaker 03:
perhaps in a faster way than it had been done before, a more efficient way, and it relieves companies from having to deal with their own delivery of these important physical documents on their own.

[00:32:30] Speaker 03:
Would you say that that's a patent-eligible method?

[00:32:34] Speaker 00:
I don't know.

[00:32:35] Speaker 00:
What I can say is that that's a piece of what's going on here.

[00:32:40] Speaker 00:
That's perhaps a piece of the analysis here.

[00:32:43] Speaker 00:
But it's not all of the analysis here.

[00:32:45] Speaker 03:
Because the claim that I just described is unlike any claim that we found patent eligible.

[00:32:54] Speaker 00:
I guess I'd need to think more about the particular hypothetical.

[00:32:57] Speaker 00:
I think that's one piece of many of the analysis that's involved here.

[00:33:01] Speaker 03:
What case of ours

[00:33:04] Speaker 03:
is closest to your facts where we found the claims patent eligible.

[00:33:09] Speaker 03:
Which one should we look to for guidance and say, aha, that's very close to this?

[00:33:14] Speaker 00:
So I'll acknowledge this is not a case where we're claiming that where the argument is that we've improved, for example, as we talked about earlier, the technical process of creating the data file.

[00:33:29] Speaker 00:
But it is a case that's in

[00:33:32] Speaker 00:
in the central respect similar to deer or Thales Visionix where there's a physical process that's occurring that businesses are using and that physical process has been done in a certain way and the inventors come along and come up with a different way of doing that that provides benefits.

[00:33:52] Speaker 00:
That's what applies here.

[00:33:55] Speaker 01:
So you're saying Deere is the case that has the facts most similar to yours?

[00:33:59] Speaker 00:
I'd say Deere and Thales Visionics are useful in this analysis because they both involve physical processes that businesses use.

[00:34:08] Speaker 00:
They also help make the point that the concern that underlies all this, of course, is preemption.

[00:34:15] Speaker 00:
The concern is that there's something about using the abstract idea

[00:34:21] Speaker 00:
which we don't believe exists here.

[00:34:22] Speaker 00:
But the one that's been offered up.

[00:34:23] Speaker 03:
Mr. Gilbertson, we've gone way over time.

[00:34:26] Speaker 03:
But I just want to try to give you 20 seconds of whatever you want to say about said data.

[00:34:33] Speaker 00:
OK.

[00:34:33] Speaker 00:
Said data.

[00:34:34] Speaker 00:
Thank you, Your Honor.

[00:34:35] Speaker 00:
20 seconds.

[00:34:36] Speaker 00:
Fair enough.

[00:34:38] Speaker 00:
Said data is clearly from step A, data that was captured at the point of purchase and contained in the data file.

[00:34:45] Speaker 00:
We know that said data includes both the amount

[00:34:50] Speaker 00:
and the micker information.

[00:34:52] Speaker 00:
We know that from the specification at 5, 26 to 29, 4, 8 through 9, and 6, 31 and 32.

[00:35:04] Speaker 00:
And there's been no effort, there's no reason to treat one piece of that said data differently than all the other pieces of that said data.

[00:35:13] Speaker 00:
We also have claim three that specifically says that the comparison is to be done based on micker information.

[00:35:19] Speaker 00:
which is exactly how US bank does its comparison.

[00:35:23] Speaker 00:
And if that infringes claim three, it, of course, has to infringe claim one.

[00:35:27] Speaker 00:
OK, thanks.

[00:35:27] Speaker 00:
Thank you.

[00:35:35] Speaker 02:
Your honor, unless the court has questions, we waive rebuttal.

[00:35:38] Speaker 02:
Thank you.

[00:35:40] Speaker 03:
Judge Hughes, thanks to you.

[00:35:41] Speaker 03:
The case is submitted.