[00:00:00] Speaker 02:
So this is the 996 pattern again.

[00:00:09] Speaker 00:
It's in the same family, same specification.

[00:00:13] Speaker 00:
This case is really a head-scratcher for me because the 996 requires a static price axis, indicators that move relative to the static price axis, an order entry region along the static price axis,

[00:00:26] Speaker 00:
from which orders are sent.

[00:00:27] Speaker 00:
Single action in the order entry region to set the price and send the order.

[00:00:31] Speaker 00:
If that sounds a lot like the 304 patent, it's because it does track that.

[00:00:40] Speaker 00:
The 996 patent is virtually identical to the 304 and 132 patent for purposes of eligibility.

[00:00:48] Speaker 00:
And before the board, they asked IB, I thought, a good question, and that is, can you identify

[00:00:56] Speaker 00:
one element in the 304 that's missing in the 996.

[00:01:01] Speaker 00:
And IB couldn't identify one difference.

[00:01:05] Speaker 00:
And in fact, the 996 has an additional limitation requiring multiple orders.

[00:01:11] Speaker 00:
And so for that reason, the 996 meets section 101, just as the 304 does.

[00:01:18] Speaker 00:
And for the same reasons that the 304 recites a technological invention, the 996 does as well.

[00:01:26] Speaker 02:
Thank you, Mr. Cannon, Mr. Pickard.

[00:01:37] Speaker 01:
For this final patent, one distinguishing feature from the 132 and the 304 patents is, again, we have a fact finding from the board about step one analysis that the claims are directed to fundamental economic practice.

[00:01:53] Speaker 01:
We, of course, admit that we're correct

[00:01:56] Speaker 01:
Subsidiary fact findings are entirely appropriate under step one of Alice.

[00:02:01] Speaker 01:
Again, the claims in the 996 patent do nothing more than computerize the economic practice of the order book as reflected.

[00:02:10] Speaker 03:
I'm sorry.

[00:02:11] Speaker 03:
You said that subsidiary fact finding is undertaken under step one of Alice?

[00:02:17] Speaker 01:
It is appropriate to do so.

[00:02:19] Speaker 01:
In some cases, it may require it.

[00:02:21] Speaker 01:
There are cases where it can be, I think, decided.

[00:02:23] Speaker 03:
What cases are those?

[00:02:24] Speaker 03:
Where have we said that?

[00:02:25] Speaker 01:
But what's the authority?

[00:02:27] Speaker 01:
This court has never explicitly ruled that.

[00:02:30] Speaker 01:
It hasn't answered the question either way.

[00:02:31] Speaker 01:
As I said earlier, the Alice and Bilsky decision that the Supreme Court looked to evidence outside the patent, I think this case reflects, these cases reflect why looking outside the patent and making subsidiary fact findings can be useful because this case, these patents, at least those that were litigated in the CQG case,

[00:02:52] Speaker 01:
the inquiries as to what was a fundamental economic practice or abstract can find itself to things that were said in the patent.

[00:03:00] Speaker 01:
And when we look outside the patent, we see that the way of arranging data in these patents was an economic practice.

[00:03:08] Speaker 01:
And they cover the abstract idea.

[00:03:09] Speaker 03:
If that was true, then could extrinsic evidence rebut the plain meaning of a claim?

[00:03:19] Speaker 01:
Talking about claim construction?

[00:03:22] Speaker 03:
No.

[00:03:23] Speaker 03:
You're saying that you can make subsidiary fact-finding under step one.

[00:03:27] Speaker 03:
What I'm asking you is, can extrinsic evidence rebut the plain meaning of a claim?

[00:03:37] Speaker 01:
That's how I make sure I understand your Honor's question.

[00:03:40] Speaker 03:
Can you use a dictionary in order to rebut the plain meaning of a claim?

[00:03:45] Speaker 03:
If the claim says, you know, an elephant is red,

[00:03:50] Speaker 03:
then you're saying you can get a dictionary that says an elephant is green, and that rebutts the claim.

[00:03:57] Speaker 01:
I think that were a court or the PTAP to make a one-on-one decision, and if it was confronted with the question as to the meaning of a term, it would be appropriate for that tribunal to rely on extrinsic evidence under the same paradigm that we have after Tebow and Phillips and so on.

[00:04:22] Speaker 02:
Thank you, Council.

[00:04:24] Speaker 02:
And we needn't hear from the government further.

[00:04:26] Speaker 02:
And Mr. Gannon, do you have anything further?

[00:04:36] Speaker 00:
Just one quick thing.

[00:04:38] Speaker 00:
So the board found that the 132 and the 304 patent meets step one.

[00:04:45] Speaker 00:
I am very confident that had they not had the CQG opinion before then, they would have ruled the other way.

[00:04:51] Speaker 00:
But they were forced to rule the way they did because of the CQG opinion.

[00:04:56] Speaker 00:
What doesn't make sense at all is that, with respect to the 304 and the 132 patent, they found those claims to be eligible under step one.

[00:05:05] Speaker 00:
And yet, somehow on the 996, where IB couldn't identify one element from the 304 missing from the 996, they said the 996 doesn't meet step one.

[00:05:18] Speaker 00:
That makes no sense.

[00:05:21] Speaker 02:
Thank you, counsel.

[00:05:22] Speaker 02:
We'll take all four cases under advisement.