[00:00:26] Speaker 00:
The next argued case is number 182265, Triplay Incorporated against What's Up.

[00:00:35] Speaker 00:
Mr. Weider.

[00:00:48] Speaker 02:
May it please the court.

[00:00:50] Speaker 02:
My argument will focus on two points.

[00:00:53] Speaker 02:
First point, Triplay's

[00:00:55] Speaker 02:
template claims are directed to a novel solution that improves computer efficiency in two ways.

[00:01:01] Speaker 02:
One, it reduces the need for the messaging system's computers to form content analysis of received messages.

[00:01:10] Speaker 02:
And it streamlines the computer's message conversion by enabling the use of predefined layouts adapted for each template type and device capability.

[00:01:20] Speaker 02:
The court's high-level characterization of the claims

[00:01:22] Speaker 02:
as directed to the abstract idea of converting and forwarding messages was error.

[00:01:28] Speaker 02:
It was untethered to the concrete claim limitations, giving rise to the invention's computer efficiency.

[00:01:34] Speaker 02:
Second, my second point, the district court erred in finding that the representative claims lacked an inventive concept as a matter of law.

[00:01:42] Speaker 02:
The court's conclusory finding ignored the detailed analysis of his magistrate judge, identifying numerous

[00:01:52] Speaker 02:
outstanding fact issues, precluding resolution of conventionality at the pleading state.

[00:01:57] Speaker 02:
Turning to my first point, as this court has found several times, software innovations are patent eligible at step one, where the focus of the claim is a specific improvement to the functioning of the computer.

[00:02:12] Speaker 01:
Can I ask you something?

[00:02:13] Speaker 01:
I understood that your first technical improvement is it improves the computer processing, it makes it easier for computer processing,

[00:02:22] Speaker 01:
if I'm not saying it exactly the way you did, because of the use of templates.

[00:02:27] Speaker 01:
Correct.

[00:02:27] Speaker 01:
And I think the response that is made to that by the PTO is that you didn't invent templates, that you admit even in your own patent specification that templates had been created by others.

[00:02:43] Speaker 01:
Correct.

[00:02:44] Speaker 01:
And so how do you respond to that?

[00:02:46] Speaker 02:
The response to that is,

[00:02:48] Speaker 02:
that what we invented was a particular use of templates with unique identifiers.

[00:02:56] Speaker 02:
And so the templates are associated with a particular content.

[00:02:59] Speaker 02:
And because the templates are defined associated with a particular complex,

[00:03:03] Speaker 02:
sorry, with a particular content.

[00:03:06] Speaker 02:
And because there's a unique identifier associated with that, when this system receives the message, it reads that unique identifier.

[00:03:14] Speaker 02:
And thereby, once it reads that unique identifier, it knows the content of the message.

[00:03:19] Speaker 02:
It's not any use of templates.

[00:03:21] Speaker 02:
One of the arguments it's made is that the benefits of templates are, in any context, provide this.

[00:03:28] Speaker 02:
I mean, that's just not true.

[00:03:30] Speaker 02:
Just to take a routine example we all might know,

[00:03:33] Speaker 02:
When we go to send a message in Microsoft Outlook, we get a template to fill in information.

[00:03:39] Speaker 02:
But that's not the patent.

[00:03:41] Speaker 02:
It's not associated with any unique identifier.

[00:03:43] Speaker 02:
It's not used in the context of a particular messaging system to provide particular benefits.

[00:03:50] Speaker 02:
A computer before it can do the conversion of a message from one format and layout type to another needs to know what the content of the message is.

[00:04:00] Speaker 02:
And that requires the computer to execute instructions to ascertain what actually is in the message before it then moves on to the step of doing the conversion.

[00:04:10] Speaker 02:
And by virtue of the fact that this system designed a messaging system process that included a template with a unique identifier, as soon as the messaging system receives that thing in one step,

[00:04:26] Speaker 02:
it knows the content of the message.

[00:04:28] Speaker 02:
So that's the first benefit that I described.

[00:04:31] Speaker 04:
And if we just... Why is that something different from, you know, we have a memo template, a letter template, an opinion template, and just call them one, two, three.

[00:04:43] Speaker 04:
So you send one.

[00:04:44] Speaker 04:
And now the computer knows, I know which template to use.

[00:04:48] Speaker 02:
Right.

[00:04:48] Speaker 04:
Because I've got, you know, I've got.

[00:04:50] Speaker 02:
Right.

[00:04:50] Speaker 02:
So a computer can have three or four templates in order to generate a different kind of memo, for example.

[00:04:55] Speaker 02:
Right.

[00:04:56] Speaker 02:
But that template's not part of a whole integrated design, which is what we have here, which is that messages are defined based on templates.

[00:05:07] Speaker 02:
And they have a unique identifier associated and built into the messaging system

[00:05:12] Speaker 02:
is the receipt of that identifier, which points to what the content of the message is.

[00:05:18] Speaker 01:
Is your argument that by having templates and unique identifiers, that creates advantages specifically with respect to converting the message from one format to another?

[00:05:31] Speaker 02:
Well, it has two benefits.

[00:05:33] Speaker 02:
So the first benefit is in the prior art, without this invention,

[00:05:38] Speaker 02:
The first thing a messaging system has to do when it receives the message is execute computer instructions to figure out what's in the message.

[00:05:47] Speaker 02:
And because this messaging system is designed with a template with a unique identifier, as soon as it receives the identifier, it knows the content of the message because that unique identifier is associated with a template that has a particular content.

[00:06:02] Speaker 02:
So that's the first benefit.

[00:06:04] Speaker 02:
The second benefit

[00:06:05] Speaker 01:
Why isn't that a benefit in a system that's not sending it?

[00:06:11] Speaker 01:
For example, the system that Judge Toronto was referring to.

[00:06:15] Speaker 02:
Well, if we're talking about, like, example in Microsoft or whatever, where we can pull a different template.

[00:06:26] Speaker 02:
Can you give me your example again?

[00:06:27] Speaker 02:
I'm not sure.

[00:06:27] Speaker 04:
When you say it identifies the content, do you mean essentially the

[00:06:33] Speaker 04:
the way it should be formatted on the screen.

[00:06:36] Speaker 04:
It doesn't identify what words are in the... It will identify, for example, we're dealing with a multimedia message.

[00:06:44] Speaker 02:
So, for example, if we look at Table 1 in the Patents 475 Patent, which is in Appendix 54,

[00:07:02] Speaker 02:
It identifies that you have various template types, and they have a content structure associated with those template types.

[00:07:15] Speaker 02:
So for example, it would know, is it a picture?

[00:07:18] Speaker 04:
I think I got hung up on your saying, it tells you the content.

[00:07:22] Speaker 04:
You mean sort of the content structure.

[00:07:24] Speaker 04:
Correct.

[00:07:24] Speaker 04:
OK, right.

[00:07:25] Speaker 02:
Correct, right.

[00:07:25] Speaker 02:
So we're talking about a picture of the elephant.

[00:07:28] Speaker 04:
So my example was, say in this court,

[00:07:32] Speaker 04:
We have memo format, opinion format, letter format.

[00:07:39] Speaker 04:
And we call them A, B, C. And so a message that's sent with the words that will go into this thing says A. And now suddenly the recipient knows, OK, I know what to make that.

[00:07:54] Speaker 04:
Put it in a memo format.

[00:07:56] Speaker 04:
Or B, I'll put it in an opinion format.

[00:08:00] Speaker 04:
Is that what we're talking about?

[00:08:02] Speaker 02:
No, we're not, because what we're talking about here is a messaging system that's dealing with the problem of different devices with different capabilities and different types of content.

[00:08:14] Speaker 02:
So the messaging system sits in the middle of the sending device and the receiving device.

[00:08:21] Speaker 02:
What it does is it has to ascertain what that content is.

[00:08:25] Speaker 02:
Not just it has to know whether we're talking as a video, is it a picture, what kind of format it is, what sort of objects I have to deal with.

[00:08:33] Speaker 02:
And in that type of a system, without a template that defines what that content structure is, the system has to execute a number of instructions to figure it out.

[00:08:43] Speaker 02:
And that's why the patent referred to this as novel and referred to the advantages over the prior art

[00:08:48] Speaker 02:
as a reduction in need for content analysis.

[00:08:51] Speaker 02:
Because by constructing this system with a template and a UCI identifier, as soon as it receives that identifier, it knows all the details.

[00:09:02] Speaker 02:
And then more importantly, but also, the other part of the invention is because the system has templates with particular context, it has the ability to generate in advance

[00:09:16] Speaker 02:
predefined, adapted layouts that go for every different device type.

[00:09:21] Speaker 02:
So if I get template one.

[00:09:23] Speaker 01:
Where is that in your claims?

[00:09:25] Speaker 02:
OK.

[00:09:25] Speaker 02:
I can go exactly to where that is in the claims.

[00:09:29] Speaker 02:
If you go to this part of representative claim eight, and if we go to appendix at the 677.

[00:09:44] Speaker 02:
With that, I'm on the 475.

[00:09:46] Speaker 02:
I'm representative claim 8 of the 475 and I'm in appendix 56.

[00:09:54] Speaker 02:
And you're going to walk it all the way back to claim 1?

[00:09:56] Speaker 02:
I'm going to walk back to claim 6.

[00:09:58] Speaker 02:
Okay.

[00:09:59] Speaker 02:
Okay.

[00:09:59] Speaker 02:
And if we go to the last clause of that, which says said selection and conversion being done in accordance with at least one predefined layout corresponding to the recognized unique identifier

[00:10:14] Speaker 02:
and the displaying capabilities of the destination communication device.

[00:10:18] Speaker 02:
So this is the step that happens after the very first step, which is receiving a message that has a template and unique identifier.

[00:10:27] Speaker 02:
So at the first step, it knows the content of the message.

[00:10:30] Speaker 02:
And because it knows the content, it can have predefined layouts.

[00:10:34] Speaker 02:
An example of those in the specification to show what we're talking about is at Table 2, Appendix 55,

[00:10:43] Speaker 02:
which is this idea of for each template type you have a different layout depending on the device capability.

[00:10:51] Speaker 02:
Now, without this,

[00:10:53] Speaker 02:
it would be necessary in the prior art to generate the layout on the fly, because you have no idea what your incoming content is.

[00:11:00] Speaker 01:
Would you keep on talking about content and how the template tells you the content.

[00:11:05] Speaker 01:
The problem I'm having is the only thing I've seen the claim is that the layout is based on a template, or the template might dictate the layout.

[00:11:13] Speaker 01:
But there's nothing about content.

[00:11:15] Speaker 01:
Maybe I'm missing something.

[00:11:16] Speaker 02:
Well, so if we just go back to the death

[00:11:19] Speaker 02:
The message template here, if we want to turn, for example, to Appendix 50, is a message template is used in the patent specification should be expansively construed to include any kind of predefined user interface, whether the content and or layout transmitted.

[00:11:38] Speaker 02:
Typically, the template comprises pre-exited text and our spaces to be filled and our media items and menu elements and or buttons.

[00:11:46] Speaker 02:
And if we also look, for example,

[00:11:48] Speaker 02:
as we talked about at Table 1, which shows exemplary templates with content structure.

[00:11:54] Speaker 02:
And the whole nature of this invention is about defining messages based upon what content is going to be in them, defining them in advance.

[00:12:08] Speaker 02:
So part of the claim here, when we're talking about a layout, which is just basically what's construed

[00:12:15] Speaker 02:
if I remember correctly, as basically a visual representation.

[00:12:20] Speaker 02:
We're just talking about... Was the term... Yeah.

[00:12:24] Speaker 01:
Was the term... So template was construed?

[00:12:27] Speaker 02:
Oh, template has a... I'm just reading the... It wasn't separately construed from the definition that's in the specification, which I just read.

[00:12:36] Speaker 02:
Layout was construed to be a visual representation.

[00:12:40] Speaker 02:
So what we're talking about here, we're talking about a

[00:12:44] Speaker 02:
a message having a layout based on a template, it means we're defining the elements that are in that message based upon a template.

[00:12:52] Speaker 02:
And because we've defined the elements that the template consists of, we therefore know what's in the message.

[00:13:00] Speaker 02:
And that's why the patent talks about a reduction in need for content analysis, because we have that content in advance.

[00:13:13] Speaker 02:
I'll now turn to my second point, which is this court erred in finding conventionality as a matter of law.

[00:13:23] Speaker 02:
This case is at the pleading stage.

[00:13:26] Speaker 02:
And as this court's decision and Berkheimer and Atrix make clear, whether a combination of elements would have been well understood, routine, and conventional to a skilled artisan is a question of fact.

[00:13:41] Speaker 02:
Those cases also emphasize that the challenger bears the burden to come forward with evidence that the additional elements are well understood, routine, and conventional.

[00:13:51] Speaker 02:
For example, an admission, the spec, or otherwise.

[00:13:55] Speaker 02:
Of particular significance here, the representative claim nine of the 677 patent was before an IPR, which wasn't instituted.

[00:14:03] Speaker 02:
And there were six total

[00:14:07] Speaker 02:
references that were brought, three of them to read on the template.

[00:14:10] Speaker 02:
They keep arguing that this is conventional.

[00:14:12] Speaker 02:
It was not conventional to design a messaging system around a template with a unique identifier, and there's no evidence to support that.

[00:14:21] Speaker 02:
And further supporting our position is the magistrate judge's detailed step two analysis, which set out numerous reasons supporting his conclusions of conventionality couldn't be decided as a matter of law,

[00:14:34] Speaker 02:
The benefits were cited in the specification for both the template and the video claims, the absence in the IPRs of prior art with templates associated with particular content, and the need for a more well-developed record.

[00:14:46] Speaker 00:
You're discussing prior art and to try and keep straight where we stand.

[00:14:53] Speaker 00:
You're seeking a remand under a reversal under section 101 and a remand for the district judge to consider 103?

[00:15:04] Speaker 02:
Yeah, I mean, I'll be really precise.

[00:15:07] Speaker 02:
I mean, our first position is that these claims should be non-abstract at step one.

[00:15:14] Speaker 02:
To the extent the court disagrees with us at step one, our position is there ought to be a remand on the step two conventionality question.

[00:15:27] Speaker 02:
The magistrate judge identified numerous issues of conventionality.

[00:15:33] Speaker 02:
We submit they haven't come forward with any evidence to show conventionality.

[00:15:38] Speaker 02:
All the evidence points the other way.

[00:15:40] Speaker 02:
We have an IPR.

[00:15:41] Speaker 02:
in which they put forward six references, and it wasn't instituted.

[00:15:45] Speaker 02:
Three of them went to the template claims.

[00:15:49] Speaker 02:
They haven't come forward with any evidence of conventionality.

[00:15:55] Speaker 02:
They've cited a variety of a couple of cases that mention a template in passing.

[00:16:00] Speaker 02:
But as the district court judge said in his decision, that those template decisions are different.

[00:16:08] Speaker 02:
And that difference further supports that it's non-conventional here.

[00:16:13] Speaker 02:
We just basically have the district court saying, well, this is a benefit of templates in any context.

[00:16:19] Speaker 02:
And we submit that's not the case.

[00:16:21] Speaker 01:
Did you preserve this argument below?

[00:16:24] Speaker 01:
Did you argue Berkheimer below?

[00:16:26] Speaker 02:
Yes.

[00:16:27] Speaker 01:
OK.

[00:16:27] Speaker 02:
Yes, we did.

[00:16:29] Speaker 02:
Yes, Berkheimer came after the magistrate and before the district court, but we did argue it.

[00:16:34] Speaker 02:
And that's partly why we also, among our third arguments, is we have a fourth amended complaint that we filed, because the district court claimed there were certain details missing.

[00:16:48] Speaker 00:
All right, let's hear from the other side, and we'll save some time.

[00:16:52] Speaker 02:
Thank you, Robs.

[00:17:00] Speaker 00:
Mr. Bell?

[00:17:01] Speaker 03:
Good morning, Your Honor.

[00:17:02] Speaker 03:
May it please the Court?

[00:17:04] Speaker 03:
I'd like to first start with what's not at issue here.

[00:17:07] Speaker 03:
And what we know is that Claim 1 of the 475 Patent stands ineligible under Section 101.

[00:17:13] Speaker 03:
The District Court is so held, and that's not challenged on appeal.

[00:17:17] Speaker 03:
That claim includes the basic concept of receiving messages, converting them so that they can be compatible with the recipient.

[00:17:25] Speaker 03:
And it resides certain components, an access block and a media block.

[00:17:30] Speaker 03:
The district court rightly found that those are dysfunctional labels.

[00:17:33] Speaker 03:
So really what we're dealing with here is do the other three claims at issue tack on enough stuff to change the conclusion for those claims?

[00:17:42] Speaker 04:
Can I just ask you, I guess as a doctrinal or procedural or something matter, is it really right that we accept as a given the 101 ineligibility of claim one here just because it's not appealed?

[00:17:59] Speaker 04:
I mean, you don't get issue preclusion.

[00:18:03] Speaker 04:
You don't get, I don't know, what's the doctrine if that's what you're saying?

[00:18:09] Speaker 04:
And you may not be saying that.

[00:18:10] Speaker 03:
I think we're essentially saying that in the following way.

[00:18:13] Speaker 03:
In their brief, they didn't raise an issue that anything about claim one.

[00:18:18] Speaker 04:
OK, that's a much simpler point.

[00:18:22] Speaker 01:
It's okay for litigants to abandon arguments and only present to us what they think is their best argument, right?

[00:18:29] Speaker 03:
Sure.

[00:18:30] Speaker 01:
And so here, they've presented to us, hey, we don't think our best argument is in claim one, we think it's in claim eight.

[00:18:37] Speaker 03:
Right.

[00:18:38] Speaker 03:
Right.

[00:18:38] Speaker 03:
And so what we do then is take as a baseline what they're not asserting.

[00:18:42] Speaker 03:
This court has said, you look to what the patentee is asserting as the inventive concept.

[00:18:45] Speaker 01:
I mean, even today, they're not arguing anything about claim one.

[00:18:48] Speaker 01:
They're arguing really emphasizing the templates and the unique identifier.

[00:18:52] Speaker 01:
Exactly.

[00:18:52] Speaker 01:
And saying there are specific technological improvements based on that technology that they've developed.

[00:18:59] Speaker 03:
Exactly.

[00:18:59] Speaker 01:
So what's your response to that?

[00:19:01] Speaker 03:
The response to that is a couple fold.

[00:19:04] Speaker 03:
This looks exactly like or very, very similar to claims that were at issue in the semantic case.

[00:19:10] Speaker 03:
The semantic case involved claims, and this was the 142 patent in that case, for receiving electronic messages in a receipt mechanism using a rules engine to match the attributes

[00:19:24] Speaker 03:
of the incoming message, it said, look at an attribute, match it to a rule to determine how to output it.

[00:19:30] Speaker 03:
And then you output it to the destination in a certain configured way.

[00:19:35] Speaker 03:
And I actually pulled the patent this morning from that case.

[00:19:39] Speaker 03:
And fortuitously, the patent in that case, and that's the full number, is 607-3142.

[00:19:44] Speaker 00:
Now, let's stick to this case.

[00:19:47] Speaker 00:
Sure.

[00:19:47] Speaker 00:
These are fact-specific issues throughout.

[00:19:50] Speaker 03:
Yes, Your Honor.

[00:19:52] Speaker 03:
So certainly looked at in that lens and other claims that this court has found ineligible, what we see is that... They're not conceding that a claim that they're not specifically focused on, that that subject matters in the prior art.

[00:20:08] Speaker 00:
They're just putting together forward what they need to obtain claims that will help them.

[00:20:18] Speaker 03:
Right, and we can see exactly what they're claiming, Your Honor, as the inventive concept at page 47 of their brief.

[00:20:25] Speaker 03:
That's where they walk through the supposed benefits of these templates.

[00:20:29] Speaker 03:
And the supposed benefit, number one, is that it allows for reduced content analysis on the front end.

[00:20:37] Speaker 03:
You get a form and a certain number, you know where the stuff is going to be, so that you can very easily then on the back end outport it in a predefined template.

[00:20:47] Speaker 03:
Number one and number two, they're saying, are the benefits here.

[00:20:50] Speaker 03:
And we know those aren't improvements in computer technology from what this court has said.

[00:20:55] Speaker 03:
For example, another claim in the semantic case had a file content identifier that allowed the system to immediately look at that identifier, know whether it was spam, and then know how to deal with it.

[00:21:07] Speaker 03:
This court said, no, that's an abstraction.

[00:21:10] Speaker 01:
What about, so your argument is that the unique identifier itself, assigning a unique identifier to a template in itself is an abstract idea?

[00:21:20] Speaker 03:
Yes.

[00:21:20] Speaker 03:
Yes.

[00:21:21] Speaker 03:
And including that within even all the steps that they point to at page 47, recognizing it based on that, and then taking some action based on that, are all abstract concepts that aren't rooted in computer technology.

[00:21:33] Speaker 00:
And that's the key point.

[00:21:34] Speaker 00:
That's not how the law works.

[00:21:35] Speaker 00:
Every invention starts with a concept.

[00:21:39] Speaker 00:
and the fact that it is implemented with steps that are novel in combination is what you look for in the law.

[00:21:49] Speaker 03:
Well, I would respectfully tweak that a little bit, Your Honor.

[00:21:52] Speaker 03:
This Court has held that for the 101 inquiry,

[00:21:55] Speaker 03:
whether or not they ultimately survive under 102 and 103, meaning whether the exact steps in this claim are found somewhere in the prior art is of, quote, no relevance.

[00:22:06] Speaker 03:
This court found in the semantic case and has repeated that in several cases.

[00:22:09] Speaker 03:
And so what that means is we can assume, for purposes of this argument, that the steps that they've recited in the template claims

[00:22:16] Speaker 00:
But you have an inventive concept.

[00:22:18] Speaker 00:
The Supreme Court has resolved that.

[00:22:21] Speaker 00:
If there is an inventive concept in the steps or the combination of steps, then that resolves Section 101.

[00:22:31] Speaker 03:
I agree with that, Your Honor.

[00:22:32] Speaker 03:
And the Supreme Court in Alice resolved exactly that question.

[00:22:35] Speaker 03:
And so the question becomes, what is a significant enough inventive concept to satisfy the Alice test?

[00:22:41] Speaker 03:
And so what we have are this court's benchmarks.

[00:22:44] Speaker 03:
For example, the Internet Patents Court case.

[00:22:47] Speaker 03:
In that case, it was claims directed to conserving, storing data in the internet context so that when a user went back and forth within a browser, it maintained the context.

[00:22:59] Speaker 03:
And notably in that case, the claims involved templates.

[00:23:04] Speaker 03:
They also involved icons that were clickable.

[00:23:07] Speaker 03:
And this court looked at those additional limitations and said those are just kind of routine add-ons.

[00:23:12] Speaker 03:
The underlying idea of the claim in that case was storing the data.

[00:23:17] Speaker 01:
And here... So here, in this case, they're saying, I understand what you're saying, and I appreciate that Symantec and Internet patents are the cases you think that at least two of the cases that best support your position.

[00:23:27] Speaker 01:
But what about the argument here that

[00:23:32] Speaker 01:
this invention of assigning a unique identifier to a template and then having different templates on the sending end versus the receiving end which facilitates the conversion process, how do you respond to the specific argument that that is a technical improvement to the communication system by reducing the amount of time it takes for the computers to process the conversion?

[00:24:00] Speaker 03:
Well, putting aside that this court has already seemingly rejected exactly that argument in semantic, I think the answer would be that it's directly analogous to conduct that is very familiar to humans.

[00:24:12] Speaker 03:
For example, take this court's form number nine.

[00:24:15] Speaker 03:
When this court, or the clerk's office specifically, receives form number nine, which has the COI information on it, certificate of interest, it immediately knows by the number or the title

[00:24:26] Speaker 03:
what this is and what the information is at where I'm going to find it.

[00:24:30] Speaker 03:
The clerk's office can then take that, convert it into another format for the purposes of the members of the court so that they know if there are conflicts of interest and stick a sheet on top of the case materials.

[00:24:43] Speaker 03:
That reads almost identically on the claims that they're relying on here, the template claims.

[00:24:49] Speaker 03:
You have a template coming in.

[00:24:50] Speaker 03:
You recognize it.

[00:24:51] Speaker 03:
You know what format it's going to go out in.

[00:24:53] Speaker 03:
You convert it to that.

[00:24:54] Speaker 03:
You don't have to think about it.

[00:24:55] Speaker 03:
You just do it.

[00:24:57] Speaker 03:
And so by analogy, that's the way this court proceeded in cases like content extraction, like Symantec, like the first Capital One case, where it said if this looks basically like things that humans have done, it isn't enough to just take it and set it in an electronic context, whether it's electronic messages or the internet.

[00:25:16] Speaker 01:
The court below didn't rely on an analogy like that.

[00:25:21] Speaker 01:
Do I remember correctly that the court below instead said the idea of templates and identifiers to identify templates is disclosed in the patent as being already developed?

[00:25:33] Speaker 03:
It did.

[00:25:34] Speaker 03:
What it did, it did point to the specification.

[00:25:37] Speaker 03:
And in the specification at column two, there's a Hawaiian reference that talks about templates in the electronic context.

[00:25:43] Speaker 03:
Now, that doesn't mean that all the steps in their claims were included in that prior art.

[00:25:47] Speaker 03:
That's not the inquiry.

[00:25:49] Speaker 03:
What it shows is that templates were well familiar to those in the art.

[00:25:53] Speaker 03:
And so putting them together in a different order of steps doesn't suddenly make it eligible.

[00:25:59] Speaker 01:
But now the patent doesn't disclose that assigning a unique identifier template is conventional, or does it?

[00:26:06] Speaker 03:
No, I don't believe it does.

[00:26:07] Speaker 03:
I don't believe it does.

[00:26:08] Speaker 03:
But we know that's just putting a label on something, whether it's a person's name, whether it's a courthouse address, whatever it is.

[00:26:14] Speaker 03:
An identifier is something that everybody's familiar with.

[00:26:17] Speaker 03:
And actually, in the semantic case, the file content identifier was asserted by the patentee as the central advance, precisely to make things more efficient so that you could recognize it coming in.

[00:26:29] Speaker 03:
Exactly the benefits and the steps that they're asserting somehow make these claims inventive.

[00:26:38] Speaker 04:
Can you address the relevance, I'm going to build a little bit into this, I ask you to assume, the relevance of the non-institution decisions with the IPR and without relying on a broad assertion that any

[00:27:05] Speaker 04:
determinations under 102 and 103 are irrelevant to 101, stated that broadly that can't possibly be right.

[00:27:15] Speaker 03:
Understood, Your Honor.

[00:27:16] Speaker 03:
So here's how I'd approach that question.

[00:27:18] Speaker 03:
I would say, let's assume that they're novel and non-obvious over the prior art for purposes of this argument.

[00:27:25] Speaker 03:
And in fact, that was the exact situation in Symantec.

[00:27:28] Speaker 03:
There was a jury finding.

[00:27:30] Speaker 03:
that the claims were, in fact, novel and not obvious over the prior art.

[00:27:35] Speaker 03:
And nonetheless, the court said, we're going to look at 101 as a distinct inquiry.

[00:27:39] Speaker 03:
This court has said that there may be some overlap between the two.

[00:27:42] Speaker 03:
And what I think this court means is that at some conceptual level, both look at things that came beforehand.

[00:27:49] Speaker 03:
But they are distinct tests.

[00:27:50] Speaker 03:
102 looks for the exact elements in the prior art.

[00:27:53] Speaker 03:
103 looks whether you combine them, obviously.

[00:27:55] Speaker 04:
Including, I think this is the point that is in my head.

[00:27:59] Speaker 04:
I guess I want to know what you think about it.

[00:28:01] Speaker 04:
In 102, 103, you look for what's in the prior art, even if that thing in the prior art is itself abstract.

[00:28:08] Speaker 04:
Correct.

[00:28:09] Speaker 04:
And I think your point here is that these things that are asserted to be inventive are abstract, so it doesn't matter if they're new or not obvious.

[00:28:19] Speaker 03:
Precisely, Your Honor.

[00:28:19] Speaker 03:
And that's what the SAP case stands for.

[00:28:22] Speaker 03:
In that case, the asserted improvement was itself an abstraction.

[00:28:26] Speaker 03:
Admittedly, it was implemented on a computer

[00:28:29] Speaker 03:
And it didn't necessarily appear in the prior art precisely as claimed.

[00:28:34] Speaker 03:
But if it's just an abstraction, that's not enough to get over the Alice hurdle.

[00:28:38] Speaker 03:
And that's not enough on the pleadings in cases like Internet Patents Corp, in two-way media, where, to your honor's point about other proceedings, including PTABS proceedings, in that case, there was an assertion by the patentee that you should have considered this expert testimony on novelty.

[00:28:54] Speaker 03:
And you should have considered

[00:28:55] Speaker 03:
PTO proceedings relating to novelty and non-obviousness.

[00:28:58] Speaker 03:
And this court said, well, that's a little bit different.

[00:29:00] Speaker 03:
And so the district court was right not to rely on those.

[00:29:03] Speaker 03:
And for the same reason here, those same things don't create a fact issue, just like there weren't fact issues in the 13 or so cases decided on the pleadings here since Atrix or the 36 or so that have been decided here on the pleadings since Alice.

[00:29:26] Speaker 03:
I would like to address one point on the video claims, which my friend didn't focus on.

[00:29:31] Speaker 03:
But I did want to call out one thing in their reply brief that we didn't have a chance to respond to.

[00:29:35] Speaker 03:
At page six, they say that it's undisputed that the claims require the system to be able to replace the incoming video with a link in the outgoing video.

[00:29:49] Speaker 03:
And I just want to clarify that that is inaccurate.

[00:29:52] Speaker 03:
If you look at the claim construction here at A2272.

[00:29:56] Speaker 04:
So what significance?

[00:29:59] Speaker 04:
I think I had a glimmer of an idea, but I've lost it.

[00:30:04] Speaker 04:
Why do you think it matters even a little bit whether a clickable link is supplemental to the full video or stands alone?

[00:30:14] Speaker 03:
Ultimately, it doesn't matter, but it's easy to resolve that issue at the first level because all of the benefits that they assert, the savings in bandwidth- Shedding the larger file.

[00:30:25] Speaker 03:
Is shedding the larger.

[00:30:25] Speaker 03:
So if the claims don't even include that, you don't need to get to the rest.

[00:30:29] Speaker 03:
But obviously, we've detailed why we think even if you do get to the rest, it's exactly like affinity labs and other cases where there are links to video streaming.

[00:30:38] Speaker 03:
And if the court has no further questions,

[00:30:42] Speaker 03:
Thank you very much.

[00:30:43] Speaker 00:
Okay.

[00:30:43] Speaker 00:
Thank you, Mr. Bell.

[00:30:45] Speaker 00:
Mr. Weider, you have your rebuttal time.

[00:30:52] Speaker 02:
So a couple of points to emphasize.

[00:30:54] Speaker 02:
One, this is about the combination steps, a combination of a number of elements that arrive at the invention.

[00:31:02] Speaker 02:
They reference Internet patents.

[00:31:04] Speaker 02:
I'd like to reference and we reference this in our brief, but in the

[00:31:09] Speaker 02:
Magistrate Judge's decision report and recommendation at appendix 3231, he analyzed this case and find it's different.

[00:31:18] Speaker 02:
I mean, it referenced, it has templates mentioned in it.

[00:31:20] Speaker 02:
But as the district court said, there's nothing in that decision to show that the template had anything to do with the invention of maintaining state.

[00:31:28] Speaker 02:
And after analyzing the various cases they cited, he concluded that it only strengthens his view that these are not conventional, because the references that they're citing to

[00:31:39] Speaker 02:
are all very distinct.

[00:31:40] Speaker 02:
And your honor's right, these are all unique fact questions, fact-dependent.

[00:31:45] Speaker 02:
So I'm going to get to some of the other points.

[00:31:47] Speaker 02:
The Wang reference, they used to say that templates were conventional.

[00:31:52] Speaker 02:
It's cited in the background.

[00:31:54] Speaker 02:
All that describes is creating a message with a template.

[00:31:58] Speaker 04:
doesn't talk about a UKID identifier, doesn't talk about... A unique identifier is just, give me a way of knowing that when I'm looking for templates, I get the right one.

[00:32:09] Speaker 02:
But Your Honor, it's the whole design of this system that involves the idea of designing a messaging system where you start out with a set of predefined messages that have content structure associated with them and attach them to a unique identifier

[00:32:27] Speaker 02:
And because of that idea flowed the benefits.

[00:32:31] Speaker 02:
And that's what the court needs to look at.

[00:32:33] Speaker 02:
At some level, from our perspective, this feels like they're trying to jam a 103 argument into 101.

[00:32:40] Speaker 02:
What they're really saying to the court is, well, aren't templates around everywhere?

[00:32:44] Speaker 02:
And wouldn't somebody else have thought of this?

[00:32:46] Speaker 02:
But nobody else did think of it.

[00:32:49] Speaker 02:
What's happened at the IPR is further evidence.

[00:32:55] Speaker 02:
This was novel.

[00:32:56] Speaker 02:
This was a way of providing a benefit in a messaging system that hadn't been thought about before, and it has a concrete benefit.

[00:33:09] Speaker 02:
I mean, nobody's arguing, or maybe they're sort of arguing, but the clear benefits of reducing the need for content analysis and allowing adapted layouts to different

[00:33:21] Speaker 02:
template types because you know what's coming in advance are all benefits that flow from this idea.

[00:33:27] Speaker 02:
The reference to the court form system, I'm not even sure how that even applies here.

[00:33:34] Speaker 02:
Forms have been used as long as computers have been around.

[00:33:38] Speaker 02:
to load information that can be populated in database.

[00:33:41] Speaker 02:
And it's not even clear to me what this court does with those forms or how they work, but it's not a messaging system.

[00:33:47] Speaker 02:
They're not being sent to some other person.

[00:33:49] Speaker 02:
Nobody's doing a conversion of it.

[00:33:51] Speaker 04:
There's not a reference of... I think Mr. Bell referred to a conversion in the sense of

[00:33:57] Speaker 04:
taking the information in fields and then using it for, among other things, conflict checks.

[00:34:03] Speaker 02:
Yeah, reports or whatever.

[00:34:04] Speaker 02:
But that's a concept of preparing forms so information gets loaded consistently in a database so somebody can run a report.

[00:34:12] Speaker 02:
It's been around forever and something totally different.

[00:34:16] Speaker 02:
than this patent.

[00:34:18] Speaker 01:
One of the things I'm struggling with a little bit is that the claim uses the word template.

[00:34:25] Speaker 01:
And it's not clear what's meant by template, how broad it is.

[00:34:29] Speaker 01:
Is it just like in our court or something where one's a letter and one's a vooch?

[00:34:36] Speaker 01:
I'm sorry, Your Honor.

[00:34:39] Speaker 01:
But it sounds like maybe the advantages you have

[00:34:43] Speaker 01:
with making the convergence simpler is that your template is talking about the difference between different kinds of media, maybe something with video versus something that is simply an email without any embedded content.

[00:34:57] Speaker 01:
And so again, going back to where is it specifically that I'm going to understand this narrow meaning of template that you seem to be asserting?

[00:35:07] Speaker 02:
So if we go to appendix 50, column 11,

[00:35:13] Speaker 02:
is the definition in the patent of a template.

[00:35:19] Speaker 04:
That's astonishingly broad.

[00:35:23] Speaker 04:
I mean, that doesn't even limit it to layout.

[00:35:25] Speaker 04:
Your claim aid eventually does.

[00:35:27] Speaker 04:
But that definition of template.

[00:35:29] Speaker 02:
So there's two things.

[00:35:30] Speaker 02:
It certainly limits the content and or layout.

[00:35:35] Speaker 02:
It's construed to include any kind of pre-Z user interface related to the content and or layout, typically

[00:35:43] Speaker 02:
template comprises pre-existing tech and are spaces to be filled and are media items and are elements.

[00:35:49] Speaker 02:
I mean, the claim limitations have to be viewed in light of the specification.

[00:35:55] Speaker 02:
And nowhere in here before standing here today was there an objection raised that, well, these templates don't include content.

[00:36:02] Speaker 04:
Where in the claims at issue is there, I think Judge Stowe was asking you about, essentially, the multimedia nature of what's being transmitted

[00:36:12] Speaker 04:
templates for that, where is that found in the claims at issue?

[00:36:23] Speaker 02:
Well, I mean, it refers to the idea of, I mean, the whole background and discussion of the invention is an invention to deal with cross-platform messaging of different device capabilities.

[00:36:34] Speaker 02:
And it refers to here the idea of, if we look at claim six,

[00:36:41] Speaker 02:
and go to line 9 where it says the media block is further configured to select before transmitting at least one message format and layout for each of the least message formats fitting to each of the least one destination devices.

[00:36:57] Speaker 02:
This is all regarding the notion that messages are being received with different media items and different devices have different capabilities and the whole discussion in the patent

[00:37:12] Speaker 02:
that even precedes the template discussion, which describes the messaging system generally, talks in significant detail about receiving different media items.

[00:37:22] Speaker 02:
So when we're talking about here... Does the term media block have a construction... Yes, it does.

[00:37:27] Speaker 02:
I'm sorry.

[00:37:28] Speaker 02:
Yes, and what is that?

[00:37:30] Speaker 02:
It has a construction.

[00:37:31] Speaker 02:
you happen to remember?

[00:37:33] Speaker 02:
It's construed to include a transcoder, for example.

[00:37:39] Speaker 02:
A transcoder is designed to convert messages from certain formats to other formats.

[00:37:45] Speaker 02:
It includes message manager.

[00:37:47] Speaker 02:
There's certain, if we want to look, for example, the quickest way I can answer your question is if we go to appendix 40, for example.

[00:38:02] Speaker 02:
which is figure eight and so it shows a media block there including a transcoder and a message manager and there may be another piece in there that I'm forgetting about but this is the engine of the messaging system that receives messages of different types of content and has a transcoder in there to convert

[00:38:27] Speaker 02:
from one format to another.

[00:38:28] Speaker 02:
And again, we're not claiming to have invented a transcoder, but we invented all these pieces of a messaging system that has this benefit.

[00:38:36] Speaker 04:
Am I right that Hwang, you talked about templates in the context of a multimedia transmission?

[00:38:43] Speaker 02:
Well, what Hwang refers to is it talks about a method

[00:38:55] Speaker 02:
this goes to the multimedia sharing method for email message recipient involving integrating the file into a template.

[00:39:04] Speaker 02:
I mean, that's all the information we have.

[00:39:06] Speaker 02:
But it's not showing the concept of having a unique identifier so the messaging system knows what's in the message.

[00:39:15] Speaker 02:
It can provide the benefits.

[00:39:16] Speaker 02:
And as this court said in Berkheimer, the mere fact that

[00:39:20] Speaker 02:
some part of a thing may be referenced in a piece of prior art, doesn't render it conventional.

[00:39:25] Speaker 02:
Because again, we're talking about the particular arrangement here that provides the benefits.

[00:39:34] Speaker 00:
OK, any more questions?

[00:39:37] Speaker 00:
Thank you.

[00:39:37] Speaker 00:
Thank you both.

[00:39:38] Speaker 00:
The case is taken under submission.