[00:00:00] Speaker 05:
Our first case for argument today is 2017-2323 Trading Tech versus IBG.

[00:00:07] Speaker 05:
Is it Kurtz?

[00:00:08] Speaker 05:
Correct.

[00:00:10] Speaker 05:
Please proceed.

[00:00:17] Speaker 04:
Thank you, Your Honor.

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May it please the Court that there are several issues before you today.

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I will be addressing the threshold issue of CBN's jurisdiction first.

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the 556 claims recite an approved graphical user interface.

[00:00:32] Speaker 05:
Before you move on to that, I guess the one difficulty I'm having with this is this graphical interface doesn't seem to have any difference from, say, Figure 2 except a new column of profit and loss data.

[00:00:45] Speaker 05:
Is that correct?

[00:00:47] Speaker 04:
There's more differences than just that.

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If you look at the claims of the patent, there are also

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There is this identifying step, a long or short position, that's taken by the user with respect to a tradable object for a given quantity.

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There is a computing step by the computing device.

[00:01:09] Speaker 05:
I'm sorry, what is the identifying step?

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That's the second step right after receiving.

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But what does it do?

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The identifying step identifies a long or short position of a trader for a given quantity.

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So if I hold Apple stock,

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And I have purchased it, and I'm holding 100.

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Is that a known business practice?

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I'm sorry, the identifying step?

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Is identifying a long or short hold a known business practice?

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I think that identifying a long or short position would be known.

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However, not in this aspect, in this combination.

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The next step is computing a plurality of values based on that long or short position, which was not done or not known, not disclosed in the prior art.

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Isn't that, in fact, the new column of data that I was just describing?

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I mean, the patent says figure two, it actually designates figure one and figure two as prior art, correct?

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That's correct.

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And those are both GUIs?

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That's right.

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And I'm sorry, but I still seem to not understand

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how this GUI has any difference from those two but for a column of added data.

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At least that's what, I don't know, maybe figure nine?

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I can't remember the figure.

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That's what we relied on in our briefing was figure nine.

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And so that column identifies a plurality of profit or loss associated with a position of a trader at a given quantity.

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And then there's an indicator that moves relative to that long or short

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position axis, right?

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So you can see that the profit or loss axis is displayed, and then you've got an indicator that moves up and down, while it certainly leverages figure two.

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All right, so those patents were what was discussed in CQG, in IBG.

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So in the prior circumstances, when somebody held a long or short position, they wouldn't know

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whether they would make or lose money.

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They'd have to calculate that.

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Or it would be displayed.

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And how is that different?

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Or it would be displayed in a separate spot of the interface.

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So we would have a thing or two.

[00:03:24] Speaker 02:
How is calculating?

[00:03:25] Speaker 02:
You said they would have to calculate that.

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For one value, or it would be displayed, but only for a single value.

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So the interesting thing about this invention is that it displays.

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Why couldn't they calculate it for multiple values?

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There's no evidence that anyone did that.

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And this was actually an enhancement to the display.

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Because for the first time, they could see a range of price levels.

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They could see their profits across this range, a plurality of P&L values.

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And they could see how the market changes up and down.

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I'm sorry.

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I could absolutely see how it could be useful to a trader to know the profits and losses on a column.

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I guess I just.

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don't understand how adding a new column of data to a display or a chart or a table is patent eligible.

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It's kind of a crazy concept to me.

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I don't see what technical problem this patent could possibly solve in light of its admission that figures one and two are prior art and that figure eight or figure nine simply add a column with profit loss data.

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That's just adding information that maybe the trader would find useful.

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But I don't see what technological problem in the technology is being solved.

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Well, it improves the graphical user interface by providing more useful information to the trader.

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It enhances visualization with respect to understanding profit loss.

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What do you mean by enhances visualization?

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Does it change the pixel output on the screen?

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No, it enables a trader for the first time to see how market changes are impacting profit loss.

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To see new data they might find useful.

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Is there something wrong with my characterization?

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Well, I think that, Your Honor,

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Does this or does this not provide the trader with new data they might find useful?

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It provides a trader with a new tool to leverage in trading.

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So to be clear, I'm asking you a yes or no question.

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Does this new column of data provide the trader with new data they might find useful?

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Sure, but that's not all that is claimed.

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This is a new tool that a trader can use.

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But that's the only thing the patent says is different from the prior R. The patent expressly says

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That's what's different from the prior art.

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It, in fact, gives you two pictures that make that crystal clear.

[00:05:39] Speaker 04:
I think it's a little different, Your Honor.

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In the prior art, P&L would be displayed in a different location, requiring the user to go back and forth to find that P&L calculation, or they could have to calculate it manually.

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This for the first time calculates it for the trader across a range of price levels.

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So they can actually see for the first time

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how market changes are impacting their P&L directly.

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And in this court's opinion in Core Wireless, for instance, where there was a new display which leveraged prior applications and provided a summary of information on the opening display of this mobile app.

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For the first time, you could summarize information that was displayed in other graphical user interfaces within that device so that it was summarizing

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information present elsewhere, but it was doing it in a new and useful way.

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And that was found to be improving the functioning of the computer, just like in this case by, for the first time, enhancing efficiency of a trader.

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Instead of them having to go back and forth between this location and here, it actually provides a new tool that they can use in making trading decisions, which was certainly very valuable.

[00:06:52] Speaker 02:
A really smart trader, the one who played the three-dimensional chess for fun.

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could do that in their head, couldn't they?

[00:07:01] Speaker 04:
Could do, I'm sorry, what?

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Could carry the various inputs and compare them mentally.

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Your Honor, we actually have expert testimony about limitations on humans' brains to calculate certain number of things.

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And it just wasn't done.

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It wasn't possible.

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If you're looking at this as a tool, I understand you're saying that you could calculate a value.

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But there was no evidence at all in the past that there would have been any display a user could go to ascertain how my profit or loss is going to be impacted if I buy here or wait till the market moves.

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And that was efficient.

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And the size of the improvement should not be the question of whether or not something's eligible or not.

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Here, it was undisputed that it was improvement over prior graphical user interfaces in terms of the specification and in terms of what the examiner found in the file history.

[00:08:06] Speaker 02:
I'm sorry, you say it's undisputed?

[00:08:08] Speaker 04:
The evidentiary record.

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In the file history, in the notice of allowance, it was allowed over prior art.

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There was no new prior art introduced at step two, for instance,

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that would have enabled the p-tab to find that this was well-understood routine and conventional functionality.

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It wasn't.

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In fact, the board entirely glossed over to step two of Alice.

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If you looked at their reasoning in appendix 38, it's just completely conclusory and doesn't cite to anything.

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All right, and then I'd like to point

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the court also to Data Engine, which TT submitted a 28-J letter after briefing had been closed.

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And there, the court held that a more user-friendly GUI, which was more intuitive and efficient, addressed a technological problem in computers with a specific technological solution.

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In Data Engine, the claims there involved navigation of a 3D spreadsheet by clicking a notebook tab icon as opposed to typing multiple commands in prior ARP GUIs.

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And that was an improvement

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in the GUI, an improvement in the functioning of the computer that was eligible at step one of ALICE.

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If we were to conclude that this was an improvement in the computer functioning, then any change in the display would always qualify as such, so long as the user found that change pleasing or interesting or valuable to them.

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Well, certainly ALICE contemplates that there is a big swath

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of potentially eligible subject matter that is computer implemented and that we are not supposed to just cast aside all improvements because of what is perceived to be the size of the improvement.

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How does adding a strip of data improve the functioning of the computer?

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Because it provides enhanced graphical user interface functioning.

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to a user.

[00:10:14] Speaker 01:
But isn't it just doing, you've got two pieces of information.

[00:10:19] Speaker 01:
You have profit and loss, but you have it over time when it's happening.

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And the beauty of the invention is that the trader can look and see what the P&L would look like if you had certain trades executed, right?

[00:10:33] Speaker 01:
That's exactly right.

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OK.

[00:10:34] Speaker 01:
So embedded in the computer is all this information and all the invention doing is put them together.

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The computer knows how to do this.

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without any changing of how computers function.

[00:10:50] Speaker 01:
Putting into, as I understand it, putting into the software a range of hypothetical prices and then putting in your profit and loss calculation is not hard to do.

[00:11:03] Speaker 01:
You can do it on paper.

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Well, it'd take a while to do it on paper, but you basically have embedded in the brain of the little computer all this information, and somebody wrote some software and put it together.

[00:11:16] Speaker 01:
That's how, with all due respect, that's how I see it, and I don't see how that's teaching a computer to do anything new at all.

[00:11:25] Speaker 01:
It teaches a software writer how to write some new software, perhaps.

[00:11:29] Speaker 04:
It's providing a trader with new functionality.

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that previously was not available to that trader.

[00:11:35] Speaker 04:
And that is a user improving.

[00:11:36] Speaker 01:
But giving them the functionality isn't telling me that something magic is happening to the computer where you were arguing over on step two, right?

[00:11:45] Speaker 04:
Well, I think that's what interfaces do, is they enhance usability.

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They enhance functioning of graphical user interfaces so that the person, the user, has more ability to leverage different things.

[00:11:57] Speaker 01:
But as the presiding judge pointed out, we've got tons of cases in which

[00:12:01] Speaker 01:
seems to me that the computer has been doing similar to what you're doing here, and we have held that that wasn't sufficient to pass step two.

[00:12:11] Speaker 04:
Well, I think that the difference in those cases is if you actually look at the claim language.

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A lot of those are highly functional and claimed, and they're not providing a particular tool for presentation.

[00:12:23] Speaker 04:
If you look at electric power group, for instance, which IB heavily relies on, in that case, if you look at the claims, they were directed to

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you know, managing power grid problems using any display chart or visual.

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They didn't tell you how to construct the visual to display the information in a better way that would be more useful for a user of that software.

[00:12:45] Speaker 02:
Let me throw in another question.

[00:12:47] Speaker 02:
On page 64 of the blue brief, you say that CBM review is unconstitutional.

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Aren't we bound by MCM versus HP?

[00:12:58] Speaker 04:
That case did not address the Fifth Amendment.

[00:13:02] Speaker 04:
And I'm glad that you went there, because I did want to highlight this issue to the court, because I think it's an important issue that was recently teed up by oil states, and both TT and the government have now addressed.

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And by retroactively applying to our patents, this is one of 13 patents that were swept into a CBM review, all directed to graphical user interfaces.

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And all of these were issued and applied for well before the AIA

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went into effect, CBM review changed the nature of the quid pro quo between trading technologies and the government when TT decided to disclose its invention publicly.

[00:13:40] Speaker 01:
How so?

[00:13:41] Speaker 04:
Because for the first time ever.

[00:13:42] Speaker 01:
But are they exposed to re-exam?

[00:13:44] Speaker 04:
That's a very good question.

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Because for the first time ever, it allowed the government to revisit 101, question of eligibility, in an adversarial proceeding.

[00:13:54] Speaker 01:
So is that really where your constitutional challenge boils down to, given

[00:13:58] Speaker 01:
precedent that's out here?

[00:14:01] Speaker 04:
That's the crux of the argument here.

[00:14:05] Speaker 01:
Given the precedent, that's the entirety of the argument, isn't it?

[00:14:09] Speaker 04:
Well, I think oil states signal that patents are still property under the Fifth Amendment of the Constitution for due process and takings.

[00:14:19] Speaker 01:
We haven't actually said that yet, but that's a good answer.

[00:14:23] Speaker 04:
And I think that it is a material change if you're for the first time

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allowing the patent office to take a second look at 101.

[00:14:31] Speaker 04:
That was not the case when these patents were filed for, and it's a lower standard of proof than in a district court.

[00:14:37] Speaker 01:
When we reviewed the constitutionality of old-fashioned re-exam, right, in a precedential opinion, we said it passed muster under the Constitution, right?

[00:14:47] Speaker 01:
That's correct.

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And in that case, all the grounds to which the patentee was being exposed in our re-exam were retroactively new.

[00:14:57] Speaker 04:
That's true, but that was ex parte re-examination, which is materially different than inter-parties re-exam or CBM review, where you've got the other side.

[00:15:07] Speaker 01:
I'm just trying to narrow it down, because your argument to say, oh my goodness, it's not fair to expose us to 101 retroactively.

[00:15:16] Speaker 01:
because that's new.

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And I'm saying, I don't want to buy that argument because the poor person that got nicked on the first old-fashioned re-exam got nicked on homesograms that were brand new.

[00:15:28] Speaker 01:
So now you're telling me that the distinction is when we're finding this analysis, it should turn on the distinction between an old-fashioned re-exam and an IPR?

[00:15:39] Speaker 01:
That's what you seem to be saying.

[00:15:41] Speaker 04:
Well, I think the difference between an old-fashioned re-exam versus CBM, unlike IPRs, CBM allows you to revisit 101.

[00:15:51] Speaker 04:
But if you look at the Patlex, the Joy cases that the government relies on, there wasn't actually a full invalidation of the patent in those cases.

[00:16:00] Speaker 05:
So was ex parte re-exam similarly unconstitutional when it was adopted for retroactive application to patents that already existed?

[00:16:11] Speaker 05:
You know, it's a little different because it wasn't an adversarial proceeding.

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Was interpartes re-exam unconstitutional when it was adopted?

[00:16:19] Speaker 04:
No, because it was applied only prospectively.

[00:16:22] Speaker 04:
So Congress didn't try to retroactively apply interparties the way they did with CBM review.

[00:16:28] Speaker 05:
I don't know the answer to this, so that might be useful.

[00:16:30] Speaker 05:
Are you saying you couldn't bring an interparte re-exam on a patent that had issued prior to the adoption of the interparte re-exam statute?

[00:16:38] Speaker 05:
Correct.

[00:16:39] Speaker 05:
OK.

[00:16:39] Speaker 05:
So IPRs and CBMs are the first instance where it has applied retroactively?

[00:16:48] Speaker 04:
The CBM is the first time 101 has been applied retroactively.

[00:16:53] Speaker 05:
IPRs can also apply retroactively, correct?

[00:16:55] Speaker 04:
Correct.

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So your argument about CBM and 101 would have to apply equally to all of IPR practice, correct?

[00:17:04] Speaker 04:
It could be carved out from IPR practice because unlike

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IPRs which we've known about re-exam at this point so our argument is slightly different because given where we're sitting today when these were filed in 2015-2016 you know we knew about re-exam but we didn't ever know wasn't even you know on the slate of possibility you're looking at when the patent was filed and I'm sorry that was 2004 there was no 101 second look by the Patent Office to change their mind that something that was once eligible now isn't

[00:17:39] Speaker 01:
But there was in the district court.

[00:17:41] Speaker 04:
The different standard of proof.

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Patents are entitled to presumption of validity.

[00:17:47] Speaker 04:
There's a burden of proof of clear and convincing evidence.

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And here it's a preponderance.

[00:17:51] Speaker 05:
That's the only difference is the evidentiary burden if there is a fact question.

[00:17:59] Speaker 05:
But 101's a question of law and only, thus far in my experience, has occasionally had fact questions.

[00:18:05] Speaker 05:
So in front of the PTO,

[00:18:07] Speaker 05:
For the most part, in this case, it seems to me, your 101 case is entirely a question of law.

[00:18:14] Speaker 05:
So the evidentiary burden becomes a non-issue.

[00:18:17] Speaker 05:
There's no difference between a district court evaluation and a PTO evaluation if there isn't a question of fact.

[00:18:24] Speaker 04:
Well, at step two, Your Honor, we did cite extrinsic evidence that the board just glossed over and didn't consider.

[00:18:31] Speaker 04:
And so we submitted expert testimony.

[00:18:34] Speaker 04:
That's because it didn't establish anything that wasn't

[00:18:39] Speaker 01:
anywhere near?

[00:18:41] Speaker 01:
Well, the presiding judge is suggesting that a facial attack won't suffice if there are circumstances in which there would be a CBM review that would not create a constitutional problem.

[00:18:53] Speaker 01:
So it would be an as-applied challenge.

[00:18:56] Speaker 01:
I think that was what's in the air.

[00:19:00] Speaker 01:
Is there any legitimacy to that way of looking at the problem?

[00:19:05] Speaker 01:
Because if you do have a pure question of law,

[00:19:08] Speaker 01:
And there was no dispute that the adjudication would be on a level playing field PTO versus a district court.

[00:19:19] Speaker 01:
Then the fora distinction would seem to be irrelevant.

[00:19:24] Speaker 04:
Well, I think there's a big difference in the forum between the patent office and the district court in terms of the procedures, in terms of the substantive burden of proof is the largest difference.

[00:19:34] Speaker 04:
But there's also no real ability to amend.

[00:19:38] Speaker 01:
Would you rely on greater discovery?

[00:19:42] Speaker 04:
I'm sorry?

[00:19:42] Speaker 01:
In the district court, there's greater discovery, isn't there?

[00:19:44] Speaker 01:
Absolutely.

[00:19:45] Speaker 04:
Absolutely.

[00:19:45] Speaker 04:
When you try to get discovery in the patent office.

[00:19:47] Speaker 01:
What other indicia of the difference in the trial in the 2-4 would you point to other than discovery?

[00:19:54] Speaker 01:
Other than discovery, there's one thing about... Jury trials out the window, so assuming for purposes of argument, what besides discovery?

[00:20:03] Speaker 04:
Well, I think the ability to introduce evidence is much more curtailed with the Patent Office.

[00:20:09] Speaker 04:
And then one point on re-examination that I wanted to also point your honors to is there really hasn't been a meaningful opportunity to amend in CVM procedures up until, I guess, recently.

[00:20:21] Speaker 04:
But when we were involved in those cases, there was no meaningful ability to amend.

[00:20:25] Speaker 04:
I mean, I think there were just two out of maybe 100 or dozens and dozens of cases where the Patent Office would even consider that or allow that.

[00:20:33] Speaker 04:
And so that's another substantive difference between if you're just looking at re-examination versus CBM review.

[00:20:39] Speaker 04:
All right.

[00:20:40] Speaker 04:
Well, let's hear from opposing counsel, please.

[00:20:44] Speaker 05:
Mr. Bambin.

[00:20:51] Speaker 00:
Thank you, Your Honor.

[00:20:53] Speaker 00:
And may it please the court.

[00:20:54] Speaker 00:
I'd like to begin by answering Judge Moore's question.

[00:20:57] Speaker 00:
You asked whether the only difference between the figure two prior art GUI

[00:21:02] Speaker 00:
And what's claimed in the 556 patent is whether there's a profit and loss column.

[00:21:07] Speaker 00:
And the answer is yes.

[00:21:09] Speaker 00:
The 556 claims are merely about using the computer as a tool to compute and display profit and loss information.

[00:21:16] Speaker 00:
This is something that was done by traders before manually and mentally in their heads.

[00:21:22] Speaker 00:
That's what the patent actually says in the background section.

[00:21:25] Speaker 00:
And that is a finding that the board relied on.

[00:21:28] Speaker 00:
That's an admission that the board relied on.

[00:21:29] Speaker 02:
Is there any possible way

[00:21:32] Speaker 02:
that the trading techniques at issue here could improve the functioning of a computer?

[00:21:38] Speaker 00:
No, Your Honor.

[00:21:40] Speaker 00:
The computer is doing exactly what the computer... I tried mind-gaming it.

[00:21:47] Speaker 00:
No, Your Honor.

[00:21:48] Speaker 00:
I don't believe so.

[00:21:49] Speaker 00:
I think that the computer is doing exactly what the computer was designed to do, which is to compute a profit and loss or compute information and then present the results to the person that's using it.

[00:21:59] Speaker 01:
What does improve the function of a computer mean?

[00:22:02] Speaker 01:
Give me an example quickly of something that would improve the functioning of a computer.

[00:22:08] Speaker 00:
I think we can look to this court's decisions in cases like Enfish.

[00:22:13] Speaker 00:
In Enfish, we had a new way of organizing information that was suitable for databases.

[00:22:21] Speaker 00:
It was a self-referential data table.

[00:22:25] Speaker 00:
That was a new way of organizing the information so that the database could be accessed in a more

[00:22:29] Speaker 00:
efficient manner, it required less computer memory.

[00:22:33] Speaker 00:
That's an example of a computer-based improvement.

[00:22:35] Speaker 00:
This is not a computer-based improvement.

[00:22:37] Speaker 00:
Like I said, this is just automating the manual process of computing and displaying profit and loss information.

[00:22:43] Speaker 00:
And Judge Wallach, you asked, well, can't we compute more than one?

[00:22:48] Speaker 00:
Can a person in their mind compute more than one?

[00:22:50] Speaker 00:
The answer is yes.

[00:22:51] Speaker 00:
And if you look at the claims, claims only require a plurality that is two.

[00:22:55] Speaker 00:
And so if you're looking at a graphical user interface and you know that you're going to make

[00:22:59] Speaker 00:
$10 at one price level, the next price level, you're going to make $11.

[00:23:03] Speaker 00:
You know this information.

[00:23:05] Speaker 00:
I'd like to discuss core wireless briefly, because opposing counsel brought that up.

[00:23:11] Speaker 00:
We believe core wireless is very different than the PatNet issue here.

[00:23:15] Speaker 00:
Core wireless, it was about a new way of navigating information in computers that had small form factors, small displays.

[00:23:23] Speaker 00:
Previously, a user would have to drill through a lot of different

[00:23:28] Speaker 00:
a lot of different screens in order to find a function or the data that they were looking for.

[00:23:33] Speaker 00:
And the improvement there, it provided that ability without having to drill through those screens and find that information.

[00:23:40] Speaker 00:
And so it was a new way of navigating information, which is very similar to the other case that Triton Technologies phrased, which is data engine.

[00:23:49] Speaker 00:
Now, data engine is, we believe, very instructive here because data engine, it wasn't a complete victory for the patent owner.

[00:23:57] Speaker 00:
And I think this court did a good job of defining a line in that case between patents or computer-implemented claims that were eligible and ones that were not.

[00:24:08] Speaker 00:
Because there was a patent that was directed to tracking changes in spreadsheets.

[00:24:14] Speaker 00:
There, the specification, it said that tracking changes was something that was arduous for users, but it was something that was done manually.

[00:24:22] Speaker 00:
And so the claims to implementing that process, implementing that manual process, those did not survive.

[00:24:28] Speaker 00:
Whereas the majority of the TAB patent claims they did survive.

[00:24:34] Speaker 00:
Another thing that Trading Technologies mentioned is that they presented declarations from their experts.

[00:24:41] Speaker 00:
One thing I just want to point out is that the board found, and it's true, that those experts didn't actually analyze the 556 patent.

[00:24:47] Speaker 00:
Trading Technologies recycled those from other cases that talk about other patents.

[00:24:54] Speaker 00:
And so we don't think that they're

[00:24:56] Speaker 00:
They should carry any weight, but the board didn't think so either.

[00:25:03] Speaker 02:
Constitutionality.

[00:25:05] Speaker 00:
So I will briefly mention the constitutionality issue.

[00:25:08] Speaker 00:
We are spending our time with the government to address that.

[00:25:10] Speaker 00:
But we agree with the court, I think, as far as to the extent that the court believes that trading technology has properly raised this issue in the blue brief and that it's retroactive legislation, which I know the government is disputing.

[00:25:25] Speaker 00:
We believe that the reasoning in this court's Patlex decision in MCM portfolio should be followed.

[00:25:32] Speaker 00:
There, the court found in Patlex that there was no due process Article III or Seventh Amendment violations for the retroactive application of the new ex parte, at that time new ex parte re-exam status, to Mr. Gould's laser patents.

[00:25:46] Speaker 00:
Same reasoning applies here.

[00:25:49] Speaker 00:
Unless there are any questions, I will see the rest of my time and turn this over to the government.

[00:25:54] Speaker 05:
You gave her one second.

[00:25:55] Speaker 05:
Great.

[00:25:55] Speaker 05:
That was nice of you.

[00:25:56] Speaker 05:
Come on up, Ms.

[00:25:57] Speaker 05:
Allen.

[00:25:59] Speaker 05:
Ms.

[00:25:59] Speaker 05:
Allen, I assure you, my placement on this case, unlike yours, is random.

[00:26:05] Speaker 05:
I mean, I feel like we've done this dance quite a few times already.

[00:26:10] Speaker 05:
I was going to see you again.

[00:26:11] Speaker 02:
Yeah.

[00:26:11] Speaker 02:
Why didn't you say the same thing?

[00:26:14] Speaker 03:
Thank you, Your Honor.

[00:26:21] Speaker 03:
We're here to address the constitutional issues.

[00:26:24] Speaker 03:
Just to pick up where the previous discussion left off, we think that the constitutional arguments plainly fail under this Court's decision in PatLex and Joy Technologies with respect to the due process claim.

[00:26:35] Speaker 03:
The same, the question is whether Congress had a rational basis for applying covered business tax review to patents that were already in existence when the statute was passed.

[00:26:45] Speaker 05:
What about takings?

[00:26:45] Speaker 05:
Can you go straight to that?

[00:26:46] Speaker 03:
Sure.

[00:26:47] Speaker 03:
Yes, Your Honor.

[00:26:47] Speaker 03:
We've had this conversation before, but let's play it out again.

[00:26:50] Speaker 03:
Sure.

[00:26:51] Speaker 03:
Well, I mean, I guess first of all, they're focused on the 101 issue and the fact that prior to the AIA 101 issues could only be litigated in district court, whereas now they can be

[00:27:03] Speaker 03:
brought before the agency and that the burden of proof is different.

[00:27:07] Speaker 03:
In Patlex, the patent holder made the same argument.

[00:27:12] Speaker 03:
They argued that the fact that the presumption of validity didn't apply in the re-examination proceedings, that their property had been taken.

[00:27:19] Speaker 03:
And this court rejected that argument on the ground that a particular procedure that governs is not property protected by the Constitution.

[00:27:26] Speaker 03:
And so we think that that reasoning fully applies here with respect to the main argument that they're making.

[00:27:32] Speaker 03:
Just more generally, we also think that... Property has a right to win.

[00:27:39] Speaker 03:
We think that there is no taking here because a patent would only be canceled after this court has affirmed the board's determination that these claims are unpatentable.

[00:27:51] Speaker 03:
And just as in district court litigation, the fact that a district court would find a claim invalid doesn't mean that there has been a judicial taking.

[00:27:59] Speaker 03:
Instead, it means that they never had it.

[00:28:01] Speaker 05:
My questions about this remain unanswered for me, which are you do have a different standard of review in PTO versus the district courts.

[00:28:15] Speaker 05:
And we have a different standard of review for fact questions from the PTO versus the district court.

[00:28:22] Speaker 05:
So one of the difficulties with the property right

[00:28:25] Speaker 05:
I think you'll follow me as I walk through this is, if a district court decides it, and there are fact questions, and the district court is the decision maker, he decides those fact questions under the clear and convincing evidence standard, which is much more favorable to the patentee.

[00:28:42] Speaker 05:
Then when that comes up on appeal to us, we review it under the clear error standard.

[00:28:48] Speaker 05:
When the patent office decides these questions

[00:28:52] Speaker 05:
They decided under the same fact question.

[00:28:55] Speaker 05:
They decided under the preponderance of the evidence standard.

[00:28:57] Speaker 05:
When it comes up to us, we then give their decision substantial evidence deference.

[00:29:02] Speaker 05:
Now, I know I personally find any difference between clear error and substantial evidence virtually impossible to quantify.

[00:29:10] Speaker 05:
Nonetheless, it has been deemed by the Supreme Court a material difference.

[00:29:15] Speaker 05:
So how do we not have a taking under those circumstances where both

[00:29:21] Speaker 05:
the initial standard being applied to the property right is lower, and then greater deference is being given to the taking away of the property right, just on the fact questions, of course.

[00:29:31] Speaker 03:
Well, again, Your Honor, I mean, as this Court explained in PatLex, the reason that the presumption of validity applies is because it comes from a presumption of administrative correctness and is giving deference to the PTO's determination that it's a valid patent.

[00:29:44] Speaker 03:
So it makes sense, of course, that it wouldn't apply.

[00:29:46] Speaker 03:
you know, in a proceeding before the agency where the agency itself is saying that a claim is unpatentable.

[00:29:51] Speaker 03:
And in PatLex, this court held that the presumption of validity, which is where the clear and convincing evidence standard comes from, that that is just a procedure and there is no property right in particular procedures for taking these purposes.

[00:30:04] Speaker 03:
I don't understand.

[00:30:04] Speaker 05:
That's just a procedure.

[00:30:06] Speaker 05:
I don't know.

[00:30:07] Speaker 05:
I don't really understand what that means.

[00:30:09] Speaker 05:
I mean, certainly the Supreme Court's reaffirmed

[00:30:12] Speaker 05:
recently that there is a property right in the patent.

[00:30:14] Speaker 03:
Yes, and we're not disputing that.

[00:30:16] Speaker 03:
What I'm saying is that what they're claiming is a property right in the procedure by which the patent's validity is adjudicated.

[00:30:24] Speaker 03:
And in PatLex, this court held that there is no property right in the particular procedures for adjudication of the underlying property right.

[00:30:34] Speaker 01:
So you, in essence, are treating the question of the presumption of validity, yes or no, as the same as these evidentiary standards?

[00:30:44] Speaker 01:
Well, I mean, in my... The challenge is to whether or not the fact that you have a presumption of validity in one place and you don't in the other, is that going to give you any constitutional problem, right?

[00:30:53] Speaker 01:
And we said no.

[00:30:55] Speaker 03:
Yes, Your Honor.

[00:30:55] Speaker 03:
And the clear and convincing evidence standard the Supreme Court set in Microsoft versus I for I comes from the presumption of validity.

[00:31:02] Speaker 01:
You're saying it just falls in the same bucket.

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

[00:31:04] Speaker 01:
And that's a very interesting question because the presumption of validity probably has gotten a lot less bite in the way cases get litigated in that comparison that you're making than does the standard of proof and the standard of review.

[00:31:23] Speaker 05:
And by the way, the standard of review didn't differ at the time Patlex was decided.

[00:31:27] Speaker 05:
Zirco decided the standard of review should differ after that, so this really does

[00:31:32] Speaker 05:
change PatLex and with all due respect, I'm not sure we're bound by it anymore because at the time PatLex was decided that we applied the same standard of review to both PTO and district court decisions.

[00:31:44] Speaker 05:
We don't do that any longer.

[00:31:45] Speaker 05:
Supreme Court told us that was a no-no.

[00:31:48] Speaker 05:
We now give more deference to PTO decisions.

[00:31:50] Speaker 03:
Doesn't that change the landscape a little bit?

[00:31:53] Speaker 03:
I don't think it does, Your Honor.

[00:31:54] Speaker 03:
Again, I think we're talking about whether a procedure about how the underlying

[00:32:01] Speaker 03:
patent property right is adjudicated.

[00:32:02] Speaker 05:
But it doesn't have the same level of review by us any longer.

[00:32:06] Speaker 05:
We now have the removal of patent right by an agency under a lower standard.

[00:32:10] Speaker 05:
Maybe PatLex govern that.

[00:32:12] Speaker 05:
But now we don't have Article III review, which is at the same level as it would be from the district court.

[00:32:20] Speaker 05:
We have lesser scrutiny in the Article III review process of the removal of the property right.

[00:32:26] Speaker 05:
That's not a taking.

[00:32:28] Speaker 05:
Less scrutiny, less reviewability by an Article III tribunal.

[00:32:34] Speaker 03:
Your Honor, I don't.

[00:32:35] Speaker 05:
What if they came along?

[00:32:36] Speaker 05:
Let me make this crystallize for you, because it's all coming together for me beautifully.

[00:32:40] Speaker 05:
What if all of a sudden Congress said, you no longer have a right to appeal IPRs to the Federal Circuit full stop?

[00:32:48] Speaker 05:
Would that be a taking?

[00:32:52] Speaker 02:
That's where I'm going.

[00:32:54] Speaker 05:
Can we lobby for that?

[00:32:55] Speaker 02:
No, no.

[00:32:57] Speaker 05:
I didn't say that.

[00:32:58] Speaker 05:
I meant, can we lobby against that?

[00:33:00] Speaker 02:
Go ahead.

[00:33:03] Speaker 02:
My question would be, I think to your opposing counsel, more than to you, what if we amend the federal rules of evidence or the federal rules of civil procedure and modify discovery and limit the number of interrogatories that can be asked?

[00:33:20] Speaker 02:
Senate taking?

[00:33:21] Speaker 03:
Your Honor, I mean, in our brief, we've cited Patlax.

[00:33:24] Speaker 03:
We've cited a Supreme Court case that both say that there are not

[00:33:27] Speaker 03:
property rights and particular procedures for how something's adjudicated.

[00:33:31] Speaker 03:
Again, our primary submission is if you step back and look at their takings claim, what they're saying is that they have a property right in a patent that never should have been issued, because from the time it was issued, it didn't meet.

[00:33:44] Speaker 05:
I know.

[00:33:45] Speaker 03:
I get all that.

[00:33:46] Speaker 05:
But I guess I'd really like an answer to my question.

[00:33:49] Speaker 05:
If Congress stepped in and said there is no appeal to any Article III tribunal of IPR procedures, would that be a taking?

[00:33:56] Speaker 05:
of the property right of the patent, when the patent office alone takes it away through IPR and there's no right to Article 3 review.

[00:34:06] Speaker 03:
present a more difficult takings argument than in this case.

[00:34:11] Speaker 05:
No, but you said procedures off the table.

[00:34:13] Speaker 05:
That's what you suggested.

[00:34:15] Speaker 05:
Procedure is off the table.

[00:34:16] Speaker 05:
That's what slows from PatLex.

[00:34:18] Speaker 05:
Is this part of procedure?

[00:34:20] Speaker 05:
If you eliminate Article III review of the removal of a property right, is it a takings?

[00:34:25] Speaker 03:
Your Honor, that is not what is at issue in this case.

[00:34:28] Speaker 05:
Let's hypothetically say your answer is yes.

[00:34:31] Speaker 05:
You're not saying it's yes, but we're hypothetically saying it's yes.

[00:34:33] Speaker 05:
You're hypothetically saying, yes, I think that might be a taking, Your Honor.

[00:34:37] Speaker 05:
So then how would reducing the level of scrutiny an Article III tribunal can give to an administrative agency not be a taking if eliminating review was?

[00:34:48] Speaker 05:
How about when you reduce the scrutiny they can give?

[00:34:50] Speaker 03:
Well, Your Honor, again, I think if we go back to Palax, at that time, there was no way the agency could take it at all.

[00:34:56] Speaker 03:
And so whatever level of scrutiny, that is a much, much bigger change than what you're talking about here, which is

[00:35:04] Speaker 03:
I guess is the difference between the standard review that this court applies when reviewing district court proceedings and that this court applies when reviewing agency decisions.

[00:35:14] Speaker 03:
And again, I mean, in PatLex, there was no way, this court stated that there was no way when the patent was issued that the patent could have been found unpatentable, that the claims could have been found unpatentable by the agency.

[00:35:28] Speaker 03:
And so that is a much, much bigger change than what we're talking about here.

[00:35:31] Speaker 05:
And this court's... But Patlex was deciding re-exam, right?

[00:35:36] Speaker 05:
Yes.

[00:35:37] Speaker 05:
And was it retroactive at the time?

[00:35:41] Speaker 05:
I don't remember.

[00:35:42] Speaker 05:
Was it retroactive?

[00:35:43] Speaker 05:
The re-exam statute allowed to be applied to already issued patents?

[00:35:48] Speaker 03:
Yes, it did apply to already issued patents.

[00:35:49] Speaker 03:
And that's the precise issue.

[00:35:50] Speaker 05:
So it's only the inter parte re-exam that wasn't allowed to be applied?

[00:35:53] Speaker 05:
That's correct.

[00:35:54] Speaker 03:
That's correct.

[00:35:54] Speaker 03:
And so in Patlex and in Joint Technologies, this court has rejected this argument twice.

[00:36:00] Speaker 03:
And so we think that... Maybe the third time's the charm, Ms.

[00:36:03] Speaker 05:
Allen.

[00:36:03] Speaker 05:
I don't know.

[00:36:04] Speaker 05:
I don't think so, Your Honor.

[00:36:05] Speaker 01:
Does the board have the authority to declare that the CBM procedure is unconstitutional?

[00:36:17] Speaker 03:
Your Honor, what we think could have happened... Yes or no?

[00:36:20] Speaker 03:
What we think the board could have done in this case... I want you to answer his question first.

[00:36:25] Speaker 03:
He asked you a yes or no question.

[00:36:26] Speaker 01:
Do they have the authority?

[00:36:29] Speaker 03:
If the question is, you know, what could they state?

[00:36:32] Speaker 01:
Let's say, for example, you're arguing that we shouldn't hear this because trading technology didn't present this challenge to the board.

[00:36:40] Speaker 01:
So let's go back, and you're sitting at the board, and they present the argument to you.

[00:36:45] Speaker 01:
What's the board going to say?

[00:36:46] Speaker 03:
So what the board could have done if trading technologies had raised this argument is the board could have declined to institute covered business method review of this patent if they thought that... Well, just because they felt like it?

[00:36:59] Speaker 03:
If they thought that the constitutional argument was correct, they could have declined to institute.

[00:37:06] Speaker 03:
Why?

[00:37:06] Speaker 03:
Because the statute simply says that the director may not institute unless he finds certain things.

[00:37:12] Speaker 01:
Well, the director could decline it on the grounds hidden like the color of the tie that the person was wearing, right?

[00:37:22] Speaker 03:
We think that the board could have declined to institute if they thought that instituting would violate the Constitution.

[00:37:26] Speaker 01:
On the merits, does the board have the authority

[00:37:29] Speaker 01:
to hold anything unconstitutional, yes or no?

[00:37:34] Speaker 03:
Your Honor, I'm not sure if the question is what remedy, if you're asking me what remedy the board could provide if trading technologies had made this argument, my answer is... Somebody forfeited an argument here because they didn't make it below.

[00:37:45] Speaker 01:
If they're making it below was...

[00:37:49] Speaker 01:
You know, no reason to make it below, because there was no way they could get a relief.

[00:37:53] Speaker 01:
And you're telling me the only way they could get the relief was if somebody said, well, I'm just not going to institute, and my institution decision is unreviewable.

[00:38:03] Speaker 01:
That doesn't help me.

[00:38:04] Speaker 03:
Your Honor, I think our point is that we think just as an in-rate DBC, it would not work.

[00:38:08] Speaker 01:
We really don't want to answer the question, do we?

[00:38:10] Speaker 01:
What would happen if the board actually greeted the argument and held the CBM thing unconstitutional?

[00:38:18] Speaker 01:
I think if the board thought that CBM review and there was an appeal up here To us and the question who I did the board having the authority to do that.

[00:38:26] Speaker 01:
What's the answer?

[00:38:29] Speaker 03:
Yeah, I think what the board would have can't you answer the question well I'm not letting you sit down to the answer the question.

[00:38:36] Speaker 05:
I'm not kidding I want you because I've asked you this question multiple times, and I let you evade it This is your sorry.

[00:38:42] Speaker 05:
I'm 15th time in front of me basically if you combine all the different cases

[00:38:45] Speaker 05:
Yes or no, does the board have the authority to render the statute unconstitutional?

[00:38:51] Speaker 03:
So I'm not trying to be evasive.

[00:38:53] Speaker 03:
If the question, if you're asking- Why don't you say I don't know?

[00:38:56] Speaker 01:
Is it that you don't know, you haven't been instructed, you've been instructed not to answer the question?

[00:39:02] Speaker 03:
In my view, I am answering the question, so I apologize if you think I'm being evasive.

[00:39:05] Speaker 05:
Really, because yes or no, when a question starts with yes or no and you don't answer yes or no, I don't know how in your view you could be answering the question.

[00:39:12] Speaker 05:
Yes or no.

[00:39:14] Speaker 05:
Does the board have the authority to hold the statute unconstitutional?

[00:39:23] Speaker 03:
I think you're asking me about the remedy the board could provide.

[00:39:26] Speaker 05:
Does anybody in the audience misunderstand my question?

[00:39:28] Speaker 05:
Yes or no.

[00:39:29] Speaker 05:
Does the board have the authority to render the statute unconstitutional?

[00:39:34] Speaker 03:
I think that the board could opine on whether the statute is unconstitutional and the remedy that the board could provide to

[00:39:43] Speaker 03:
a patent holder that argues that the statute is unconstitutional is that the board could decline to institute the proceedings.

[00:39:49] Speaker 05:
So let me be clear.

[00:39:50] Speaker 05:
Your answer is no.

[00:39:52] Speaker 05:
The board does not actually have the authority to hold the statute unconstitutional.

[00:39:56] Speaker 03:
I apologize.

[00:39:57] Speaker 03:
I don't know what you mean by that.

[00:39:58] Speaker 03:
If you mean, you know, issue an injunction such that the statute couldn't be applied in other cases.

[00:40:03] Speaker 05:
I don't issue an injunction when I hold a statute unconstitutional, do I?

[00:40:07] Speaker 05:
Do I issue an injunction?

[00:40:08] Speaker 05:
I did it not long ago.

[00:40:09] Speaker 05:
I held a statute unconstitutional.

[00:40:11] Speaker 05:
Did I issue an injunction pursuant to that?

[00:40:14] Speaker 03:
No, I assume not, Your Honor.

[00:40:16] Speaker 05:
Right.

[00:40:17] Speaker 05:
So why would the board have to issue an injunction?

[00:40:18] Speaker 05:
Can it adopt a holding that the statute is unconstitutional, and does that thereby render the statute unconstitutional?

[00:40:24] Speaker 03:
If the court thought the statute was unconstitutional... Not the court, the board.

[00:40:27] Speaker 03:
Sorry, I apologize.

[00:40:28] Speaker 03:
If the board thought the statute was unconstitutional, it could terminate the proceedings.

[00:40:34] Speaker 03:
I'm trying to explain what remedies I think that the board... I'm not asking you what remedies you think the board has.

[00:40:38] Speaker 01:
Well, what you're saying is one remedy is not to write a decision in which they declare the statute unconstitutional.

[00:40:45] Speaker 02:
Well, aren't you saying they could write an opinion declining to institute and saying we're doing this because it is unconstitutional?

[00:40:54] Speaker 03:
Exactly.

[00:40:55] Speaker 03:
Or they could terminate the proceedings and they could say that they're doing that for the very same reason.

[00:40:59] Speaker 05:
But unlike a court, they can't hold the statute unconstitutional, can they?

[00:41:09] Speaker 05:
Can I hold the statute unconstitutional?

[00:41:12] Speaker 05:
Yes, I can.

[00:41:14] Speaker 05:
That was easy for you to answer, wasn't it?

[00:41:16] Speaker 01:
Can the board hold a statute unconstitutional?

[00:41:20] Speaker 01:
Why is it that Judge Moore can do it?

[00:41:21] Speaker 01:
She's an Article III judge, right?

[00:41:23] Speaker 03:
Yes, but the Supreme Court has made clear that there is no categorical bar to agencies addressing constitutional issues.

[00:41:31] Speaker 02:
They can say they think so, but can they hold it unconstitutional?

[00:41:36] Speaker 02:
And they say this statute is unconstitutional and therefore it may not be applied.

[00:41:43] Speaker 03:
They could say, and so we are not going to apply it in this case.

[00:41:46] Speaker 03:
What we are going to do.

[00:41:47] Speaker 05:
That's because a different section gives agency discretion to do it whenever they want.

[00:41:51] Speaker 05:
So that's not the answer.

[00:41:52] Speaker 05:
You know the answer I'm looking for.

[00:41:53] Speaker 05:
Does an Article I tribunal have a right to hold a statute unconstitutional?

[00:42:02] Speaker 03:
And I don't know the answer to that question in the abstract.

[00:42:05] Speaker 03:
All I can tell you is that we think here, just as in InwayDBC, there is something that the board could do.

[00:42:10] Speaker 03:
The board could opine.

[00:42:12] Speaker 03:
could it could issue a decision declining to Institute on the ground that it that subjecting the patent to CBN review would violate the Constitution if that's what the board thought was the case.

[00:42:23] Speaker 03:
It has addressed constitutional issues.

[00:42:25] Speaker 01:
Let me just ask you this question.

[00:42:27] Speaker 01:
Wouldn't you agree that this relief that you're saying that the board could give you is not quite as much relief as you would get if somebody actually declared the statute unconstitutional?

[00:42:40] Speaker 03:
You mean if the court did?

[00:42:41] Speaker 01:
Yeah, sure.

[00:42:42] Speaker 01:
I'm thinking about the reliefs.

[00:42:43] Speaker 01:
TT is down there, and they want to have the statute declared unconstitutional because of this case, but also because of a whole mess of other cases and because of the risk of being thrown into these processes time and time again, which they're poster boy to show how that happens.

[00:43:00] Speaker 01:
And so they want the statute declared unconstitutional not just for this particular case, but to protect them.

[00:43:06] Speaker 01:
So that's the scope of relief they want.

[00:43:09] Speaker 01:
And you've told us that the board can't give them that scope.

[00:43:12] Speaker 01:
The most the board can say is, we're just not going to institute this one.

[00:43:16] Speaker 03:
And that's why the fact that the board could give them relief, could obviate their constitutional challenge.

[00:43:22] Speaker 02:
Let's put it this way.

[00:43:23] Speaker 02:
If the board opined that the statute was unconstitutional, and nobody appealed from that, would the statute then be unconstitutional for all other purposes?

[00:43:39] Speaker 02:
relating to the holding.

[00:43:41] Speaker 03:
Well, I don't think it's that different than when a district court issues a declaratory judgment.

[00:43:45] Speaker 03:
It's binding on those parties.

[00:43:47] Speaker 02:
I understand that.

[00:43:48] Speaker 02:
But if a district court says a statute is unconstitutional and it's not appealed, at least in that district, it's unconstitutional.

[00:43:58] Speaker 03:
Exactly.

[00:43:58] Speaker 03:
In that district, it has between those parties, and I think that we're saying... And anyone else.

[00:44:04] Speaker 02:
The court has held it unconstitutional.

[00:44:07] Speaker 03:
I shouldn't get too far down this road as a government lawyer and opining.

[00:44:10] Speaker 03:
That's why I said you could answer, I don't know.

[00:44:13] Speaker 03:
What the preclusive effects are.

[00:44:14] Speaker 03:
But I think our point is just that just as Indian Ray DBC, the agency could have done something to address the constitutional challenge that they're now raising before this court that they didn't raise before the agency.

[00:44:24] Speaker 03:
And so we think it's forfeited.

[00:44:26] Speaker 03:
But as I've explained, we think that it's very clear on the merits that we win, even if this court chooses to reach this.

[00:44:31] Speaker 01:
I'm sorry to have used up all your time on this.

[00:44:33] Speaker 01:
I raise this because my suggestion would be that the department gives some consideration to whether or not they want to lead with their glass chin.

[00:44:41] Speaker 01:
on the question of whether or not this argument was forfeited.

[00:44:45] Speaker 01:
I mean, your lead argument as to why we shouldn't be hearing this is that TTL was forfeited its right to have an Article III court in this case adjudicate that issue.

[00:44:55] Speaker 01:
And I think this colloquy has demonstrated, in my judgment, the flimsiness of your forfeit argument.

[00:45:04] Speaker 03:
I respectfully disagree.

[00:45:05] Speaker 03:
We think this case is just like in Ray DBC and that we have an institutional interest

[00:45:09] Speaker 03:
you know, courts enforcing the general rule that litigants need to raise issues before agencies.

[00:45:14] Speaker 03:
You know, the Supreme Court recognized in Elgin and Thunder Basin that constitutional issues have to go through the agency procedure.

[00:45:21] Speaker 03:
They can't just be brought in district court, and that there is value to having agencies address constitutional issues, you know, that can later aid a court in its adjudication of those issues.

[00:45:31] Speaker 05:
You know, Ms.

[00:45:32] Speaker 05:
Allen, I used to think I had the patience of a saint.

[00:45:35] Speaker 05:
And when my kids threw temper tantrums, I could outlast them.

[00:45:38] Speaker 05:
I could sit there throughout the entire obstructionist behavior.

[00:45:42] Speaker 05:
They would be laying on the floor in an airport kicking and screaming.

[00:45:45] Speaker 05:
People would be staring at me as they walked by, and I outweighed them.

[00:45:49] Speaker 05:
I outlasted them.

[00:45:50] Speaker 05:
I have a three-year-old.

[00:45:51] Speaker 05:
I'm very familiar.

[00:45:53] Speaker 05:
Today, you outlasted me.

[00:45:54] Speaker 05:
Sit down.

[00:45:55] Speaker 05:
Okay.

[00:45:55] Speaker 05:
I apologize.

[00:45:56] Speaker 05:
Thank you, Your Honor.

[00:46:07] Speaker 04:
I think I have three minutes reserved for rebuttal.

[00:46:09] Speaker 04:
I just wanted to make a few points.

[00:46:13] Speaker 02:
So are you going to answer the question that I raised with your opposing counsel and said I was going to ask you about a change in the rules of procedure?

[00:46:21] Speaker 04:
The changes in the rules of procedure can be very substantive.

[00:46:26] Speaker 02:
So if the administrative office of the courts and the courts propose to Congress that

[00:46:36] Speaker 02:
we limit the number of interrogatories to 10, that's a taking.

[00:46:43] Speaker 04:
I'm not sure that that is enough to constitute a taking.

[00:46:47] Speaker 04:
But when you've got burdens of proof that are different, that has been declared by courts and other cases as being a substantive change that would affect the taking.

[00:46:59] Speaker 04:
And then I wanted to answer just one other question about

[00:47:05] Speaker 04:
Patlacks and that just to be clear that was an ex parte reexamination so again very different than an adversarial proceeding like CVM review and then a 101 I didn't get to these points, but The board overgeneralized the claims they were not they've not directed to fundamental economic practice and because the board just grossly overgeneralized the claims and then they looked at this and

[00:47:32] Speaker 04:
this phantom overgeneralization of what the claims are really directed to.

[00:47:35] Speaker 04:
From there, from that flowed all the errors.

[00:47:40] Speaker 04:
And this isn't just something that is done.

[00:47:43] Speaker 02:
So if we take your initial premise as true instead of what we seem to believe, you would be right.

[00:47:51] Speaker 04:
Yes.

[00:47:52] Speaker ?:
Yes.

[00:47:54] Speaker 04:
And this isn't just something that was done in the head.

[00:47:56] Speaker 04:
This is something where you've got indicators that are moving relative to a P&L value axis.

[00:48:02] Speaker 04:
And the board's overgeneralization of the claims as being merely directed to providing a trader with financial information would cover every trading GUI ever made.

[00:48:14] Speaker 04:
That was way untethered from the specific claim limitations and broadly applied to almost any trading GUI ever made.

[00:48:25] Speaker 04:
And rather, our claims set forth the very specific structure and makeup and functionality of those claims.

[00:48:32] Speaker 04:
And that's why they're very different than the cases cited by IB.

[00:48:36] Speaker 04:
And they're much more akin to cases that have found that improvements to graphical user interfaces are eligible, like core wireless, data engine, CQG, and so on.

[00:48:48] Speaker 04:
And with that, if there are any more questions, I can sit down.

[00:48:51] Speaker 04:
OK.

[00:48:52] Speaker 05:
I thank all counsel for their argument.

[00:48:53] Speaker 05:
I just want to add for the record that I very much appreciate when I get to see

[00:48:59] Speaker 05:
Young partners or more junior attorneys have an opportunity to argue, and I think you did the best you could with a bad case.

[00:49:07] Speaker 05:
So, all right, next case.

[00:49:09] Speaker 05:
Thank you very much.