[00:00:21] Speaker 01:
Is counsel here for a unilock against big fish?

[00:00:47] Speaker 01:
This is number 182186, Unilock, USA, Incorporated against Big Fish Games, Incorporated.

[00:00:56] Speaker 01:
Mr. Foster.

[00:01:11] Speaker 04:
Thank you, Your Honor.

[00:01:11] Speaker 04:
This is a 101 case.

[00:01:16] Speaker 04:
In 2014, the Supreme Court handed down the Allen's case, which held him valid for patenting a computer product for mitigating settlement risk.

[00:01:27] Speaker 04:
That was based in part on the Bilsky case, which held invalid a computer product for hedging against financial risks.

[00:01:35] Speaker 04:
The Allen's case set off a large expansion of this court's jurisdiction.

[00:01:41] Speaker 04:
By my count through last week, there have been 52 presidential decisions dealing with the abstract idea exception.

[00:01:49] Speaker 04:
The most important which, in my view, is the Enfish case, which made a distinction between using computers as a tool for affecting other results, such as in Allison and Bilsky, or improvements in computers functionality themselves.

[00:02:07] Speaker 04:
And I think the Bielski thing was expanded by some language in the SAP case to include computer networks as well.

[00:02:14] Speaker 04:
The two patents involved in this case are IBM patents.

[00:02:18] Speaker 04:
One was applied for in 1994, the other in 2000.

[00:02:22] Speaker 04:
They were directed towards, in one case, the improvement in computer functionality.

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In the other case, the improvement in how a network is used to upgrade computer programs.

[00:02:32] Speaker 04:
I can talk about either one first.

[00:02:35] Speaker 04:
In the absence of direction, I will start with the 228 patent, which was the IBM patent applied for in 1994, directed towards updating programs, fixing bug fixes over a network.

[00:02:52] Speaker 04:
The specific solution that IBM developed and claimed

[00:02:56] Speaker 04:
was a series of various steps where at a remote node, a user would be presented with an interface, would make optional service instructions, those would be transmitted to a central facility, the central facility would do service research to determine what had been done with that, at that location in the past with that program, would make a determination of what would need to be done,

[00:03:21] Speaker 04:
course it would relate that to an instruction they haven't given and would make the fix if that had been requested and send an executable code back to a remote location.

[00:03:32] Speaker 04:
Clearly it's something having to do with the effectiveness of the computer network itself.

[00:03:36] Speaker 02:
It's not using... How does that improve computer functionality?

[00:03:41] Speaker 02:
Excuse me?

[00:03:42] Speaker 02:
How does that improve computer functionality?

[00:03:45] Speaker 04:
It improves the network functionality, Your Honor.

[00:03:48] Speaker 04:
The ability of the network to... These are generic computers, correct?

[00:03:53] Speaker 04:
Yes, certainly.

[00:03:54] Speaker 04:
And they remain generic as a result?

[00:03:57] Speaker 04:
They're generic computers.

[00:03:58] Speaker 04:
Well, one of the things we all understand is that when you're improving the network in order to make the invention useful, it has to be useful to whoever's on the network, and there are going to be a lot of generic computers there.

[00:04:08] Speaker 04:
The claims are not directed to changing the computer itself,

[00:04:11] Speaker 04:
It's a change in the programming that is used on the network to affect bug fixes or other revisions to programs.

[00:04:18] Speaker 03:
But it doesn't tell you how to do it, right?

[00:04:20] Speaker 03:
It just says there's this concept of doing it centrally.

[00:04:23] Speaker 03:
It doesn't tell you how.

[00:04:26] Speaker 04:
I'm sorry.

[00:04:26] Speaker 03:
It doesn't tell you how to do it.

[00:04:29] Speaker 03:
It just says do it centrally, right?

[00:04:32] Speaker 04:
Well, a little bit more than that, Judge Take.

[00:04:34] Speaker 04:
It's certainly done centrally, but in the claims there are various provisions on how to do it.

[00:04:39] Speaker 04:
There is an interface which represents the user.

[00:04:42] Speaker 04:
Auctional service instructions was apparently the point of novelty that the Patent Office found.

[00:04:47] Speaker 04:
Nothing in the prior art had optional service instructions being selected by the user.

[00:04:53] Speaker 04:
But no, there's no programming instruction beyond the various steps that are laid out in the claims and in the written description.

[00:04:59] Speaker 02:
These were all steps that were carried out by individuals, let's say, on their own.

[00:05:06] Speaker 04:
Again, I'm having problems with my hearing aid.

[00:05:09] Speaker 02:
You're describing steps that individuals have implemented on their own, upgrading their computer.

[00:05:18] Speaker 04:
I'm not sure I would characterize it that way.

[00:05:20] Speaker 04:
You have to upgrade the system in order to carry out this invention.

[00:05:24] Speaker 04:
It's not just an individual at a node doing it.

[00:05:27] Speaker 04:
But when the system's upgraded, it is presented to the user so the user can use the system in order to upgrade the program and to affect bug fixes in the programs the user has.

[00:05:40] Speaker 02:
So what's the improvement here?

[00:05:42] Speaker 02:
That this does the process automatically?

[00:05:45] Speaker 02:
that the user doesn't have to do this individually?

[00:05:51] Speaker 04:
The improvement, remember going back to 1994, was at the time there were different operating systems.

[00:05:57] Speaker 04:
And depending on the operating system involved, this is distributed computing operation.

[00:06:03] Speaker 04:
And depending on where you are, you have a different operating system.

[00:06:06] Speaker 04:
The problem IBM was faced with

[00:06:09] Speaker 04:
Was that the way to implement bug fixes would vary depending on the operating system, which is out there in the field.

[00:06:16] Speaker 04:
So there's solution to it, and it is a centralization approach they're using, yes.

[00:06:20] Speaker 04:
So what they do is they move the operation into a central place to get around the differing operating steps that are incumbent in any particular operating system out there.

[00:06:32] Speaker 04:
So centralization is the operative concept, but they implemented these various steps in order to affect that result.

[00:06:41] Speaker 04:
The other patent is the 229 patent, which has to do with moving files.

[00:06:47] Speaker 04:
And this is a better computer.

[00:06:49] Speaker 04:
Again, this is applied for in the year 2000.

[00:06:51] Speaker 04:
And back then, it seems so strange at this point.

[00:06:58] Speaker 04:
But to copy files from one location in a computer to another was a time-consuming operation.

[00:07:03] Speaker 04:
And sometimes other events would intervene.

[00:07:05] Speaker 04:
And so you had to stop the copying.

[00:07:07] Speaker 04:
The copying means moving from one location to another and then deleting from the original location.

[00:07:13] Speaker 04:
Back then, if you had to stop the copying at any point in the middle and you would try to resume it, you had to resume either from the beginning or there would be a time-consuming process where they had to inspect the memory cache to see what had to be done.

[00:07:28] Speaker 04:
IBM's solution to that was to improve the computer so that it could pick up where it left off without any delay.

[00:07:35] Speaker 04:
And they affected that improvement by certain programming changes, including having, as I recall the language, a target directory, a target path, and a file path.

[00:07:44] Speaker 02:
When you say improve the computer, you're talking about improving the functionality of the computer.

[00:07:48] Speaker 04:
Yes, that's what I meant, Your Honor.

[00:07:50] Speaker 04:
Apparently that couldn't be done before 2000.

[00:07:53] Speaker 04:
They affected it.

[00:07:54] Speaker 04:
And it was an incremental change, to be frank, but an incremental change which was not in the prior art, which the patent office found to be patentable.

[00:08:03] Speaker 04:
Again,

[00:08:05] Speaker 04:
The way I try to explain eligibility to my non-legal colleagues is that I say if you have mousetraps and if someone designs a better mousetrap which catches more mice, generally that should be eligible.

[00:08:18] Speaker 04:
In this case, the computer that IBM designed, the copying function was an improvement over previous computers and therefore under eligibility, it should be found to be eligible for patenting.

[00:08:32] Speaker 03:
Again, the problem is it doesn't tell you how to do it.

[00:08:37] Speaker 03:
It doesn't tell you how to do it.

[00:08:39] Speaker 04:
Well, with the 229 patent, Judge Dyke, it actually does.

[00:08:43] Speaker 04:
In one of the defendant claims that we cited in our brief.

[00:08:47] Speaker 04:
Well, let's take claim one first.

[00:08:49] Speaker 04:
How does claim one tell you how to do it?

[00:08:52] Speaker 04:
Claim one doesn't tell you how to do it.

[00:08:54] Speaker 04:
Claim six does, Your Honor.

[00:08:57] Speaker 03:
I mean claim five.

[00:08:58] Speaker 04:
Okay, sorry, so you agree that the claim one is unpatentable No, I wouldn't agree with that you're under the even though it doesn't tell you how to do it Well if you require that level of detail, then you would reach that result but claim five does have the level detail they specify the pointer and the girls pass and

[00:09:25] Speaker 03:
But our decision in Intellectual Ventures says that an index is routine, is abstract, right?

[00:09:38] Speaker 03:
You're familiar with the Intellectual Ventures case.

[00:09:41] Speaker 04:
I read it yesterday, Your Honor.

[00:09:43] Speaker 04:
Yes, but that was directed towards a pointer, I don't recall in detail.

[00:09:48] Speaker 04:
And then, of course, is at a later date.

[00:09:50] Speaker 04:
But in any event, as of this date,

[00:09:53] Speaker 04:
The instruction on how to download files is in the patent that is in Claim 5.

[00:10:01] Speaker 03:
Well, how does this index here make this case different from intellectual ventures?

[00:10:11] Speaker 04:
I don't remember all the details of intellectual ventures, so I don't have it in front of me, Your Honor.

[00:10:18] Speaker ?:
OK.

[00:10:23] Speaker 04:
There are no further questions from the court.

[00:10:25] Speaker 04:
I'll adjourn the rest of my time.

[00:10:27] Speaker 01:
OK.

[00:10:28] Speaker 01:
Thank you.

[00:10:37] Speaker 01:
Mr. Stewart.

[00:10:39] Speaker 00:
Thank you, Your Honors.

[00:10:39] Speaker 00:
Good morning.

[00:10:40] Speaker 00:
May it please the court?

[00:10:43] Speaker 00:
We obviously have a fundamental disagreement with Mr. Foster about the impact that these patents had and certainly the nature of the abstract concepts that are

[00:10:53] Speaker 00:
involved.

[00:10:54] Speaker 00:
But in both cases, in both patents, what we are dealing with is an abstract concept that has been imported into the realm of the computer world.

[00:11:04] Speaker 00:
And so certain things do fall out of that fact.

[00:11:08] Speaker 00:
And in both patents, the claims that were identified as representative claims are drafted in functional language.

[00:11:18] Speaker 00:
They are results oriented.

[00:11:19] Speaker 00:
They are not

[00:11:20] Speaker 00:
a how-to.

[00:11:22] Speaker 00:
They are a functional statement.

[00:11:25] Speaker 00:
And Judge Dyke, getting directly to your question in regard, for example, to the 228, you said, where does it say how to do it?

[00:11:32] Speaker 00:
You're absolutely correct that it does not say how to do it.

[00:11:35] Speaker 00:
And in fact, Your Honor, if you look at the patent, for example, at column 19, lines 38 to 39, the patent itself says that the exact implementation of the research request, for example, is not critical to the function of the system.

[00:11:50] Speaker 00:
Again, at column 22, lines 8 to 10, the exact implementation of the service application is not critical to the function of the system.

[00:11:58] Speaker 00:
Column 23, line 17 to 18, exact implementation of the product installation is not critical to the function of the system.

[00:12:05] Speaker 00:
So whether it's an artifact of the time frame from which the specification was drafted or not, the patent as drafted and the claims as drafted do not set out the steps that would be required

[00:12:18] Speaker 00:
The patent does not claim a particular way of programming.

[00:12:21] Speaker 00:
It just claims a resultant abstract idea that, as a district court correctly noted, is directed to the provision of customized service from a central site.

[00:12:37] Speaker 00:
And the patent itself describes that that concept existed in the prior art.

[00:12:44] Speaker 00:
The background of the invention talks about

[00:12:47] Speaker 00:
the distribution of code.

[00:12:50] Speaker 00:
There were different techniques that you could use to fix code, to roll out fixes.

[00:12:55] Speaker 00:
The alleged improvement in this patent was simply allowing a user to customize and select what they would want to improve or what they would want to fix.

[00:13:07] Speaker 00:
But Judge Raina, getting to your point about efficiency and functionality, there is no guarantee

[00:13:16] Speaker 00:
of an improvement in efficiency.

[00:13:18] Speaker 00:
There's nothing in the claim, there's no objective measure of efficiency, which frankly is quite subjective as it stands, but there's no guarantee of efficiency gains in this case.

[00:13:27] Speaker 00:
There's nothing in the claim that would allow a reader of the patent to determine whether efficiency had been improved.

[00:13:34] Speaker 00:
To the contrary, the very nature of the described system might have the opposite result.

[00:13:41] Speaker 00:
Because now, instead of having the network administrator who resides at the central location being in control of the distribution of software, the decisions about what needs to be rolled out, now you have individual users who are checking in to see if there are updates, if they need to have fixes, deciding on their own.

[00:14:01] Speaker 00:
That could just as easily bog down the network with additional and unnecessary requests.

[00:14:07] Speaker 01:
Because why is that a Section 101 consideration?

[00:14:12] Speaker 00:
Your Honor, it just goes to the inventive concept and some of the arguments that were made by Unalak in their briefing.

[00:14:21] Speaker 01:
OK.

[00:14:22] Speaker 02:
What about the 229 patent?

[00:14:24] Speaker 00:
Your Honor, the 229 patent is, frankly to me, a little bit even clearer than the 228.

[00:14:33] Speaker 00:
Because what you're dealing with in the 229 patent

[00:14:35] Speaker 00:
is, as the district court noted, pausing in the middle of copying information and then resuming that process.

[00:14:43] Speaker 00:
This is an abstract concept, and it's been brought into the... Well, it's more than just a pause button, right?

[00:14:50] Speaker 02:
I mean, what the claims are describing is that you can pause in the middle of a job, let's say.

[00:14:57] Speaker 02:
And whatever you are working on is saved and does not have to be recopied.

[00:15:03] Speaker 02:
It seems to me that that's a pretty important economy in computer terms.

[00:15:11] Speaker 02:
You're saving time, and you're saving extra effort.

[00:15:14] Speaker 02:
You're saving computer resources.

[00:15:16] Speaker 00:
Well, Your Honor, that concept was present in the prior art, and it's described in the background.

[00:15:21] Speaker 00:
In column one, for example, at lines 45 to 49,

[00:15:25] Speaker 00:
There's a description about how programs that copy files may be able to be paused and then resumed.

[00:15:33] Speaker 00:
There might be a need to verify where to pick up or what portion was left over.

[00:15:38] Speaker 00:
But that concept existed.

[00:15:40] Speaker 00:
And I think that what this patent was directed to and what Uniloc certainly focused on was the idea that this freed up the resources of the computer and that that would have an impact.

[00:15:53] Speaker 00:
In fact, the functionality of the system is not changed.

[00:15:57] Speaker 00:
The user's experience might be changed.

[00:16:00] Speaker 00:
For example, if an IT employee initiates a massive copying process and wants to leave at 5 p.m.

[00:16:06] Speaker 00:
on a Friday, they can press pause and then start that again on Monday morning.

[00:16:10] Speaker 00:
But the computer network itself, the computer hardware, the network still needs to do the work.

[00:16:18] Speaker 00:
It's the exact same thing as if I was writing a letter, I put down my pen,

[00:16:23] Speaker 00:
I take a break.

[00:16:24] Speaker 00:
I come back.

[00:16:25] Speaker 00:
I still have to write the rest of the letter.

[00:16:27] Speaker 00:
The work has to happen.

[00:16:28] Speaker 00:
The resources need to be used.

[00:16:29] Speaker 02:
You have to write the rest of the letter, but not what you wrote already.

[00:16:32] Speaker 00:
You're right, Your Honor.

[00:16:33] Speaker 00:
I don't.

[00:16:34] Speaker 00:
But the claim is not directed to verifying that you are picking up the copying process at the point that you left off.

[00:16:43] Speaker 00:
That is a function that falls out of using a computer.

[00:16:46] Speaker 00:
There are indexes, which Judge Zeig, as you pointed out,

[00:16:50] Speaker 00:
They don't rise to the level of patentability.

[00:16:53] Speaker 00:
There are pointers.

[00:16:54] Speaker 00:
There are different things that a computer would use that would be different than I might use.

[00:16:58] Speaker 00:
For example, I might use, if I were copying something, I might use a notation.

[00:17:03] Speaker 00:
I might use a sticky note in a book to indicate where I am.

[00:17:08] Speaker 00:
And this is the computer implementation of that, a kind of electronic bookmark.

[00:17:16] Speaker 00:
Does that address your question, Your Honor?

[00:17:20] Speaker 00:
So with regard to the 229, certainly we believe that it is an abstract concept, the idea of copying information, pausing that process, resuming that process.

[00:17:31] Speaker 00:
And the patent just adds conventional computer components to

[00:17:37] Speaker 00:
what is not only a well-known business practice, but I think a common practice.

[00:17:40] Speaker 02:
Suppose you were to find that this pen does more than just simply pause, pause an operation or copy an operation, but in fact preserves all the people ready copies, so it doesn't have to go back and recopy that.

[00:17:54] Speaker 02:
Would that be an improvement of the functionality of a computer?

[00:17:57] Speaker 00:
Well, I don't think so, Your Honor, because in the background it specifically talks about the fact that that existed.

[00:18:02] Speaker 00:
The mechanism by which it may have, at least if what's described, I don't know from a novelty perspective if there were other references.

[00:18:10] Speaker 02:
Just forget about a 103 question.

[00:18:13] Speaker 02:
Would that be an improvement of the functionality of the computer?

[00:18:18] Speaker 00:
Simply being able to return to the point that I. And not having to recopy everything that you've already copied.

[00:18:24] Speaker 00:
I don't think so, Your Honor, because that's just the way a computer functions.

[00:18:28] Speaker 00:
deals with data.

[00:18:29] Speaker 02:
Back when this patent was issued, that's the way all computers function?

[00:18:34] Speaker 00:
Well, I mean, this patent is not as old as the, it was not filed as long ago as the other patent.

[00:18:40] Speaker 00:
But it is the case that patents allocate, or excuse me, computers allocate data across various sectors.

[00:18:48] Speaker 00:
Computers always have to know where things are.

[00:18:50] Speaker 00:
They're always indexing and pointing to different places in the memory.

[00:18:54] Speaker 00:
So I don't believe that it would be an improvement in computer technology

[00:18:58] Speaker 00:
if the claim was drafted and directly to that.

[00:19:01] Speaker 00:
But I don't believe the claim is drafted directly to that.

[00:19:04] Speaker 00:
The claim is reciting a series of steps which are directed to an abstract concept.

[00:19:12] Speaker 00:
And in fact, we had used claim one at the district court.

[00:19:16] Speaker 00:
Unilock has moved to using claim five, which actually has now been invalidated through an IPR.

[00:19:21] Speaker 00:
But for example,

[00:19:25] Speaker 00:
Claim two, the content of claim two, the method as described in claim one, where the first and second portions include blocks.

[00:19:32] Speaker 00:
So blocking data, that's kind of a concept, I think, Your Honor, that goes to your question, whether or not the computer technology that existed at the time was capable of tracking when and where data copying was stopping.

[00:19:46] Speaker 00:
That blocking is in the prior art.

[00:19:48] Speaker 00:
It's disclosed at column three, line 64 to 67 of the specification.

[00:19:53] Speaker 03:
So there might be a non-abstract idea here if it told you how to do the pausing and how to do the restarting and how to do the saving.

[00:20:07] Speaker 03:
But it doesn't tell you any of that.

[00:20:10] Speaker 03:
It just tells you to do it.

[00:20:11] Speaker 00:
You're right, Your Honor.

[00:20:12] Speaker 00:
That's what the claim says.

[00:20:13] Speaker 00:
And when you look at the specification, it talks about indexing and pointers, which, as you indicated, does not elevate this outside of the abstract realm.

[00:20:28] Speaker 00:
Are there any further questions on the 229?

[00:20:31] Speaker 01:
I think we're okay.

[00:20:33] Speaker 00:
If not, I'm happy to see the rest of my time.

[00:20:35] Speaker 01:
Good.

[00:20:35] Speaker 01:
Thank you.

[00:20:44] Speaker 01:
Thank you.

[00:20:45] Speaker 01:
Mr. Foster?

[00:20:47] Speaker 04:
Judge, I could ask me about the intellectual ventures case.

[00:20:50] Speaker 04:
Actually, there are four intellectual ventures 101 cases, but I think the one you were asking me about was intellectual ventures versus Erie Indemnity Company

[00:20:58] Speaker 04:
850 after 1315 which I have in front of me and I see the statement you're talking about which talks about an index the and I'm free to Whoever's taking notes to pages 1326 and 1327 the claims in that case were

[00:21:15] Speaker 04:
directed to a database.

[00:21:17] Speaker 04:
And the claims were dealing with creating and searching a database, which is a different type of invention than we are talking about in this case.

[00:21:25] Speaker 04:
And there is language there saying under step one, we agree with the district court that the invention is drawn to the abstract idea of creating an index and using that index to search for and retrieve data.

[00:21:37] Speaker 04:
This respectfully suggests that the purpose of the index is

[00:21:41] Speaker 04:
Different in that case.

[00:21:43] Speaker 03:
How is it different?

[00:21:44] Speaker 03:
Excuse me?

[00:21:45] Speaker 03:
How is it different?

[00:21:46] Speaker 04:
Well in our case it's being used semi to as a location for the computer to come back in and start the copying process It's not being used for search was identifying a location, right?

[00:22:01] Speaker 04:
Well, which is the same thing in intellectual ventures It is you well

[00:22:09] Speaker 04:
Index is used to know the location, yes.

[00:22:13] Speaker 04:
But it's used for a different purpose.

[00:22:16] Speaker 04:
It's used for, you had asked before about how is it done.

[00:22:20] Speaker 04:
It tells how it's done.

[00:22:21] Speaker 04:
That's its purpose in the claim.

[00:22:27] Speaker 01:
Thank you.

[00:22:28] Speaker 01:
Thank you.

[00:22:28] Speaker 01:
Thank you both.

[00:22:29] Speaker 01:
The case is taken under submission.