[00:00:17] Speaker 03:
If we're ready.

[00:00:23] Speaker 03:
We've already heard from you, but not your friend, on this jurisdictional question.

[00:00:27] Speaker 03:
Let me just ask you if there's anything different about the posture of this case versus the Apple case on the jurisdiction or the jurisdictional question is precisely the same.

[00:00:39] Speaker 00:
And they've also agreed to that, you know, on 2017.

[00:00:41] Speaker 00:
So the issue hasn't arisen in this appeal, but I'll move on to the merits.

[00:00:46] Speaker 00:
I'm sorry.

[00:00:47] Speaker 00:
Was that that?

[00:00:48] Speaker 00:
We moved in this case to add Unlock 2017.

[00:00:51] Speaker 00:
They agreed to the motion.

[00:00:53] Speaker 00:
OK.

[00:00:54] Speaker 00:
But that?

[00:00:55] Speaker 04:
They agreed to?

[00:00:57] Speaker 00:
They agreed to add Unlock 2017 to the case.

[00:00:59] Speaker 00:
To cure the jurisdictional defect at the time of judgment.

[00:01:04] Speaker 00:
On that issue, and they didn't have, didn't raise the fortress issue?

[00:01:09] Speaker 00:
It was not raised in this case.

[00:01:12] Speaker 00:
OK.

[00:01:12] Speaker 02:
OK.

[00:01:14] Speaker 00:
All right.

[00:01:15] Speaker 02:
Is it relevant here?

[00:01:17] Speaker 02:
I mean, this is the problem.

[00:01:18] Speaker 02:
Is it the same?

[00:01:20] Speaker 02:
If the facts had been developed, would there be a court decision?

[00:01:29] Speaker 00:
I'd have to look at the filing date of the case.

[00:01:31] Speaker 00:
Since it didn't come up in the case, I haven't gone into that.

[00:01:34] Speaker 02:
But on the well-pled facts that haven't been objected to, we don't have that issue.

[00:01:43] Speaker 00:
Again, Your Honor, I haven't looked into the timing.

[00:01:46] Speaker 00:
The issue with the application was that when the notice of appeal was filed.

[00:01:52] Speaker 00:
I don't think that applies here.

[00:01:53] Speaker 00:
That's probably why they didn't raise it.

[00:01:55] Speaker 00:
You caught me by surprise.

[00:01:56] Speaker 00:
I have to go back and look at the record to confirm that.

[00:02:00] Speaker 00:
Turning to the merits.

[00:02:04] Speaker 00:
So in the patent here, which was filed in, I believe, April of 2000,

[00:02:10] Speaker 00:
The inventor saw a number of problems he listed with control devices for controlling things in your home, whether it's a TV or some other device.

[00:02:22] Speaker 00:
And his idea, which he thought was great, was to have a, we refer to it as a touch screen method of control and to use as the

[00:02:32] Speaker 00:
communication method between the controlling device and the controlling devices, the Bluetooth approach, which had just been announced, but there were no Bluetooth devices available on the market at the time, but he thought this would be a great controller.

[00:02:47] Speaker 00:
That's what he built and filed a patent application on it.

[00:02:51] Speaker 00:
He tried to get a broad claim to adjust the touchscreen method of control.

[00:02:55] Speaker 00:
The patent office rejected that, and he ended up with a more limited claim which combined the touchscreen method of control with this communication method between the two devices, as the patent office allowed.

[00:03:10] Speaker 00:
Again, following up on the questioning of the last witness by Judge Plager, that's a device.

[00:03:17] Speaker 00:
It's a device which is improving over the devices, and there's nothing, frankly, in my view, abstracted off that.

[00:03:23] Speaker 03:
Is claim, which claim, claim one, which I want claim one?

[00:03:27] Speaker 03:
It's a method of claim one.

[00:03:29] Speaker 00:
I'm using Claim 10 because it's specific to Bluetooth.

[00:03:33] Speaker 00:
But Claim 1 is a broader description of the Bluetooth method, which is you send out a broadcast to find other devices in the area.

[00:03:41] Speaker 03:
So Claim 10 is an apparatus claim?

[00:03:44] Speaker 04:
Claim 10 is a method claim, too.

[00:03:47] Speaker 04:
One is a system claim.

[00:03:48] Speaker 04:
One is a method claim.

[00:03:49] Speaker 04:
It's a method, but it's a method.

[00:03:50] Speaker 03:
And one is a system claim.

[00:03:52] Speaker 03:
Claim 10 is a method, right?

[00:03:55] Speaker 03:
Yes, it is.

[00:03:58] Speaker 02:
They both say method, claim 1 and claim 10 both say a method.

[00:04:03] Speaker 00:
I think the invention was claimed as method and as an apparatus.

[00:04:07] Speaker 00:
We used claim 10 because that was the first set of claims as representative of the apparatus claims.

[00:04:12] Speaker 04:
Well, claim 10, you're talking about the 018 patent, aren't you?

[00:04:18] Speaker 00:
Let me just define the language.

[00:04:20] Speaker 04:
Claim 10 is a dependent claim under claim 1.

[00:04:27] Speaker 00:
Hang on.

[00:04:29] Speaker 04:
Claim 11 is the system claim.

[00:04:35] Speaker 00:
System claim and the handle in 21.

[00:04:39] Speaker 00:
So the investment was claimed as a method and as a system, Your Honor.

[00:04:43] Speaker 03:
And what were the claims that were asserted in this case?

[00:04:45] Speaker 03:
Because I see a discussion of claim 1.

[00:04:49] Speaker 00:
For purposes of simplifying, instead of discussing the method separately from the system, we used the method claims as representative.

[00:04:57] Speaker 00:
And the two that we talked about were 1 and 10.

[00:05:00] Speaker 00:
In the briefing, we focused on 10, which simply added the limitation that is specifically the Bluetooth system.

[00:05:10] Speaker 00:
But claim one is a Bluetooth system without using the word Bluetooth.

[00:05:14] Speaker 00:
So is there any difference between the method and the system claims, or do they rise and fall together?

[00:05:20] Speaker 00:
For one-on-one purposes, I don't see a difference between them, Your Honor.

[00:05:23] Speaker 00:
And no one has argued there.

[00:05:26] Speaker 00:
Returning now to the invention, I've been using a method of claim for discussion.

[00:05:32] Speaker 00:
The method which the device employs is the two factors I talked about, the touchscreen method of control and using this communication system for one device to talk to the other.

[00:05:46] Speaker 00:
The district court said those claims are all directed to the abstract idea of wirelessly controlling remote devices.

[00:05:56] Speaker 00:
Well, that's the field of the invention.

[00:05:58] Speaker 00:
That existed before.

[00:05:59] Speaker 00:
The claims are drawn to how it's done, which is a combination of the touchscreen method and the particular Bluetooth method of communicating between the two devices.

[00:06:10] Speaker 00:
And of course, we covered that in the brief.

[00:06:14] Speaker 00:
The district court seems to have mixed up step one with step two.

[00:06:18] Speaker 00:
His response on step one was, well, yeah, you're doing that with generic devices.

[00:06:23] Speaker 00:
And he's wrong about that.

[00:06:25] Speaker 00:
There were no Bluetooth devices back then.

[00:06:27] Speaker 00:
They weren't being used for this purpose.

[00:06:30] Speaker 00:
And so there was no generic device used to practice the particular method.

[00:06:35] Speaker 00:
The claim to advance was to combine these two features, and that's where the claims were directed to, not to the broad concept of wirelessly controlling remote devices.

[00:06:44] Speaker 02:
And we move to... Wait, so are you limiting it to the ones that use Bluetooth devices then and not the larger generic claims of claim one?

[00:06:58] Speaker 02:
Uh, no, in the sense that we have used Claim 10 for discussion purposes because, um... Well, it seemed you suggested that the reason Claim 10 was patent-eligible was because it used the new technology of Bluetooth.

[00:07:15] Speaker 02:
But Claim 1 doesn't talk about any kind of technology.

[00:07:19] Speaker 02:
Well, um... In specific... In each kind of specificity.

[00:07:21] Speaker 00:
It's all generic, conventional components, isn't it?

[00:07:26] Speaker 00:
No, actually not.

[00:07:27] Speaker 00:
And this is...

[00:07:28] Speaker 00:
This is why we use Bluetooth to make it easier to discuss.

[00:07:31] Speaker 00:
Yeah, but claim one doesn't cover Bluetooth.

[00:07:35] Speaker 00:
There are two provisions of the claim, which is the Bluetooth method of doing it.

[00:07:41] Speaker 00:
And those limitations of the claim, Your Honor, is on page four of our brief.

[00:07:44] Speaker 00:
It's establishing a wireless connection between a transceiver of a control device and a remote device

[00:07:51] Speaker 00:
by broadcasting a message for locating remote devices within range of the transceiver and receiving a response from the remote device by using devices implementing, well receiving a response from the remote device.

[00:08:04] Speaker 00:
This was the approach Bluetooth used, broadcasting and receiving a response from the messages.

[00:08:12] Speaker 00:
The only method being used in 2019 for that is Bluetooth, so we use that for our discussion purposes because we don't need the broader claim, but that is the approach, those two particular limitations.

[00:08:27] Speaker 00:
Anyway, returning to the Court's decision about Bluetooth, I take it you refer to microwave communication of some sort.

[00:08:36] Speaker 04:
By Bluetooth, you refer to some sort of wireless microwave communication.

[00:08:42] Speaker 00:
It is a radio communication, your honor.

[00:08:45] Speaker 00:
It is wireless.

[00:08:46] Speaker 00:
But the Bluetooth approach is, again, it's sending a broadcast, which anyone can listen to on the frequency.

[00:08:53] Speaker 00:
And then the responding device, they both have to have Bluetooth ships, sends back its address.

[00:08:59] Speaker 00:
And then the first device starts a pairing operation.

[00:09:02] Speaker 00:
So you then have a direct connection.

[00:09:05] Speaker 00:
And that's a different way of doing things from what was done before this application was filed.

[00:09:11] Speaker 03:
Can I move you back before your time runs out to the jurisdictional question?

[00:09:16] Speaker 03:
Because I was a little confused by what you said earlier, because it didn't comport with what I recalled was in red, in the red brief.

[00:09:25] Speaker 03:
Their jurisdictional statement seems to embrace the same arguments and the same position that Apple laid out in the prior appeal.

[00:09:33] Speaker 03:
Am I wrong about that?

[00:09:37] Speaker 03:
They seem to be contesting jurisdiction.

[00:09:41] Speaker 00:
So a couple things.

[00:09:44] Speaker 00:
The issue of the Unilog 2017 issue, which I think this court resolved on May 24th, I think they piggybacked on that when they briefed it, but I think that issue is out of the case.

[00:09:56] Speaker 03:
To the extent there's... I'm sorry, I can hear what you were saying.

[00:10:00] Speaker 00:
Yeah, there's two jurisdictional arguments.

[00:10:02] Speaker 03:
One is the Unalak 2017... They raise both of them in their jurisdictional statement.

[00:10:06] Speaker 03:
It read brief pages two and three.

[00:10:08] Speaker 00:
Right.

[00:10:09] Speaker 00:
And I think the May 24th decision of this Court and ADP resolved one of those issues.

[00:10:15] Speaker 03:
The ADP... Well, what if we don't agree with that?

[00:10:17] Speaker 03:
I mean, you're saying that didn't deal with time of judgment.

[00:10:21] Speaker 03:
That dealt with the time of appeal, right?

[00:10:23] Speaker 03:
Not time of judgment or time of filing, right?

[00:10:26] Speaker 00:
The May 24th decision, as Your Honor well knows, deals with whether you can add the party in the middle of an appeal when the portfolio is transferred.

[00:10:38] Speaker 03:
Has the record changed since this?

[00:10:40] Speaker 03:
I thought you said, and we can ask them obviously, that they agreed to your motion to amend or to add Unilock 2017?

[00:10:50] Speaker 00:
Yes, and I think what Judge Taranto did was he allowed the addition subject to whatever jurisdictional arguments they want to make with respect to the rights of the parties.

[00:11:03] Speaker 00:
The issue of simply adding the party was something that they agreed to and Judge Carano granted.

[00:11:11] Speaker 03:
Okay, and they still contest this, so the same issue about the fortress stuff?

[00:11:17] Speaker 03:
That is, do you agree that that's part of this appeal?

[00:11:21] Speaker 00:
They are piggybacking on Apple's argument, yes, Your Honor.

[00:11:24] Speaker 00:
They haven't made it themselves, but they say, me too.

[00:11:28] Speaker 00:
The difference between the appeals, as I've mentioned before, was when the notice of appeal was filed here.

[00:11:34] Speaker 00:
It wasn't, in Apple there was a problem and that we weren't aware of it, but I think here the notice of appeal was filed after the, when the issue didn't arise, but I have to sort through that.

[00:11:45] Speaker 00:
Okay.

[00:11:46] Speaker 00:
So, back to the merits or?

[00:11:48] Speaker 03:
Well, you've got three minutes remaining.

[00:11:50] Speaker 03:
You can reserve the balance of your time or use it up.

[00:11:54] Speaker 03:
Okay, then.

[00:11:56] Speaker 00:
I'd like to talk just a minute about step two in the judge's opinion.

[00:12:01] Speaker 00:
And here there was what I call a self-spend problem in two respects.

[00:12:05] Speaker 00:
First of all, the judge relied on the self-spend district court case, which said that Bluetooth was generic.

[00:12:12] Speaker 00:
And what the district court there was actually talking about was 2007, not 2000.

[00:12:17] Speaker 00:
The other problem is this court's decision in self-spend, I think, came out on June 25, in which what they said was

[00:12:25] Speaker 00:
A district court, there's not an obligation to say in the patent itself that things are not conventional or not generic.

[00:12:34] Speaker 00:
And the mistake the district court judge made in that case was imposing a burden on the patent owner to say in the patent that features are not conventional.

[00:12:43] Speaker 00:
The judge here did the same thing.

[00:12:44] Speaker 00:
He says, where does it say in the patent that these features are not conventional instead of imposing the burden on the other side to show a lack of conventionality?

[00:12:54] Speaker 00:
Again, when this patent was applied for in April of 2000, Bluetooth wasn't conventional for any purpose.

[00:12:59] Speaker 00:
There were no products in the marketplace, and it was an open question what the communication would be used for.

[00:13:04] Speaker 00:
And maybe at some point people can argue obviousness, but that should not be an eligibility issue.

[00:13:09] Speaker 03:
When did this patent issue?

[00:13:10] Speaker 03:
Excuse me?

[00:13:11] Speaker 03:
When did this patent issue?

[00:13:13] Speaker 00:
The issue date was 2004, 2005.

[00:13:16] Speaker 00:
It was applied for in April of 2000, which I think should be the relevant date for 101 purposes.

[00:13:21] Speaker 00:
But the actual issuance date,

[00:13:23] Speaker 00:
is September 2003.

[00:13:27] Speaker 00:
Let's support it.

[00:13:28] Speaker 00:
Other questions?

[00:13:49] Speaker 01:
Good morning, Your Honors.

[00:13:50] Speaker 01:
May it please the Court, Todd Landis on behalf of HTC America.

[00:13:54] Speaker 01:
Your Honors, I guess I'd like to address the jurisdictional issue, since that's been going around this morning first.

[00:14:01] Speaker 01:
It is correct that Uniloc made a motion under Rule 43 to add Uniloc 2017 to this appeal.

[00:14:10] Speaker 01:
We did not oppose that motion.

[00:14:13] Speaker 01:
mainly because we were trying to take a little bit more of a pragmatical approach to this issue.

[00:14:18] Speaker 01:
Section 101 down below, we felt as though no matter what happened down below, this was actually going to come back.

[00:14:24] Speaker 03:
OK, well, let me just cut to the chase here.

[00:14:25] Speaker 03:
So I think even your friend on Apple conceded, it's your view that we have the authority at the appellate level to join Unaloc 2017.

[00:14:37] Speaker 01:
Yes, Your Honor.

[00:14:38] Speaker 03:
Right.

[00:14:39] Speaker 03:
So that cures one of the jurisdictional questions.

[00:14:42] Speaker 03:
Do you agree with Apple, if I understand Apple correctly?

[00:14:46] Speaker 03:
that there remains another jurisdictional question with regard to Fortress in the time of violation.

[00:14:51] Speaker 01:
Yes, Your Honor.

[00:14:52] Speaker 01:
And that is a standing issue, which we don't believe can be waived.

[00:14:57] Speaker 01:
We decided to not brief that issue to this court, but rather to rely upon what Apple has done, because we think whatever the court decides in the Apple case would have to apply equally to this one, because the cases were in the same posture.

[00:15:09] Speaker 03:
So can you tell us, I think Judge Hughes alluded to this before,

[00:15:13] Speaker 03:
Why?

[00:15:14] Speaker 03:
This didn't come up before the district court judge, right?

[00:15:17] Speaker 03:
You're in a district.

[00:15:18] Speaker 03:
You're not before ALSEP.

[00:15:19] Speaker 03:
You're before somebody else.

[00:15:20] Speaker 01:
Yes.

[00:15:21] Speaker 01:
We're in the district, Western District of Washington.

[00:15:23] Speaker 01:
OK.

[00:15:23] Speaker 03:
Did this issue come up at all?

[00:15:25] Speaker 03:
Was it raised?

[00:15:26] Speaker 03:
Was it not raised because they didn't respond to discovery and you just didn't find out about it until too late?

[00:15:32] Speaker 03:
What happened?

[00:15:34] Speaker 01:
As my understanding, Your Honor, is that we didn't know about the issue.

[00:15:38] Speaker 01:
We didn't have discovery or insight into the fortress agreements and what they were like at the time.

[00:15:46] Speaker 01:
So by the time we got to decision on 101, that information wasn't before us.

[00:15:52] Speaker 01:
We didn't have it to present.

[00:15:53] Speaker 02:
Isn't that your obligation at the earliest stage of the case to do discovery on jurisdiction?

[00:15:59] Speaker 02:
And you didn't do it.

[00:16:00] Speaker 02:
I know you can't waive jurisdiction.

[00:16:02] Speaker 02:
But at a certain point, if you don't challenge it and don't make a record that allows a challenge, then in a sense, you waive the ability to develop the record further, haven't you?

[00:16:13] Speaker 02:
I mean, here's the problem.

[00:16:15] Speaker 02:
You know, jurisdiction is usually based upon a well-planned complaint.

[00:16:20] Speaker 02:
You agree with that, right?

[00:16:21] Speaker 02:
Yes.

[00:16:21] Speaker 02:
And so if you don't do any jurisdictional discovery, you don't challenge jurisdiction at all, you let the case go forward to final judgment,

[00:16:31] Speaker 02:
And so there's nothing in this record that would dispute jurisdiction.

[00:16:34] Speaker 02:
And then somehow in a related but different case, different jurisdictional facts come to light.

[00:16:41] Speaker 02:
How is it appropriate for you then to come into an appellate court after a final judgment in that case and say, look, we didn't develop these jurisdictional facts, but this other entirely different case did, and now you don't have jurisdiction?

[00:16:54] Speaker 01:
So Your Honor, I guess I would answer that this way.

[00:16:58] Speaker 01:
I think it depends upon where the case is in the posture.

[00:17:01] Speaker 02:
I mean, at the beginning of the case, they well... Well, I think my hypothetical assumed they had well-pled jurisdictional facts.

[00:17:08] Speaker 02:
You made no challenge.

[00:17:09] Speaker 02:
You didn't attempt discovery.

[00:17:11] Speaker 02:
You didn't, at any stage, at the time the judgment was entered, there was no dispute whatsoever at jurisdiction.

[00:17:17] Speaker 02:
Because in the... And then now, on appeal, because of developments in other cases, you're saying, wait a minute, they probably didn't have jurisdiction in this case either.

[00:17:25] Speaker 02:
Isn't that too late?

[00:17:28] Speaker 01:
Your Honor, I think under certain circumstances it could.

[00:17:31] Speaker 01:
But in this case, the well-planned facts said that a particular entity owned all the rights to the patent.

[00:17:37] Speaker 01:
And did you challenge that?

[00:17:39] Speaker 01:
We did not, Your Honor.

[00:17:40] Speaker 02:
Did you ask for discovery into that issue?

[00:17:42] Speaker 02:
We did not because... So we're stuck with those facts, aren't we?

[00:17:45] Speaker 01:
We're stuck with this fact simply because we made a different motion to dismiss under Rule 12, Rule 12b6, on the 101.

[00:17:54] Speaker 01:
That ended up getting decided in our favor.

[00:17:56] Speaker 01:
And so at that point in time, we were done with the case and had no ability to go get further discovery.

[00:18:02] Speaker 01:
I think if we had gotten that decided in a different matter.

[00:18:05] Speaker 02:
I mean, that's litigation choices, right?

[00:18:06] Speaker 02:
I mean, it seems to me that at a certain point,

[00:18:09] Speaker 02:
Even if a case goes to jurisdiction that we have to independently address, if it wasn't developed in the facts of this particular case, we're not a fact-finding court.

[00:18:19] Speaker 02:
We can't order you out to go discovery.

[00:18:22] Speaker 02:
And why should you get a second shot at opening up this case for discovery on jurisdictional facts when you didn't attempt to preserve that right in the first place?

[00:18:32] Speaker 02:
your honor i i i think frankly again i don't understand this to your friend in the previous case i don't understand why you're contesting any of this because you want on one oh one and your honor we really didn't contest it i mean we put a jurisdictional statement that said that if the standing issues decided one way it should probably decide the way in our case let's just talk about this case one of the facts we have assuming

[00:18:55] Speaker 02:
And I don't think you seem to contest this, that we can cure the time of judgment problem by adding Uniloc 2017, that there was no challenge to jurisdiction at any point at the time of filing.

[00:19:07] Speaker 02:
Why don't we just cure it here and rule on the merits of your 101 issue?

[00:19:10] Speaker 01:
Your Honor, I actually agree.

[00:19:12] Speaker 01:
I think the 101 issue is so clear in this case that that's exactly what I think should happen.

[00:19:18] Speaker 01:
Your Honor, I would stand here before you and tell you that I'm not quite clear why Apple has pressed this point so much.

[00:19:24] Speaker 01:
I don't know.

[00:19:26] Speaker 01:
We decided not to press the point because we think the merits of the 101 are what should be decided.

[00:19:32] Speaker 01:
And that's why we didn't oppose Unilok's motion to bring Unilok 217 into the case, into the appeal.

[00:19:39] Speaker 04:
Let me explore this with you.

[00:19:42] Speaker 04:
Assuming we conclude that it has to go back for fact-finding by the district courts and all the rest of that, are you in any prejudice by our doing that and assume the opposite, that we decide we have jurisdiction and decide the merits?

[00:20:02] Speaker 04:
Do either of those positions prejudice you?

[00:20:06] Speaker 01:
The only prejudice to my client would be that they'd have to spend more time and money discovering those facts and waiting for their 101 appeal.

[00:20:13] Speaker 01:
to get heard, because I think we'll be right back here on this same issue.

[00:20:16] Speaker 01:
That would be the only prejudice.

[00:20:18] Speaker 01:
Other than that, I can't see any.

[00:20:19] Speaker 03:
You're giving me the opposite of Apple's.

[00:20:20] Speaker 03:
Apple says it will be prejudiced if we go forward without resolving the jurisdictional issue.

[00:20:25] Speaker 03:
You're arguing it would be prejudiced if we don't go forward.

[00:20:28] Speaker 01:
I'm actually confused by why Apple doesn't think it's going to be prejudiced by not going forward as well, but that is their position.

[00:20:33] Speaker 03:
Well, I mean, I understood what your friend said, which is there are, I don't know how many of these unilock appeals are pending.

[00:20:40] Speaker 03:
And you're right, it's going to cost them extra time and money on this one.

[00:20:45] Speaker 03:
But if they prevail in the jurisdictional question, it will save them a lot of money down the road.

[00:20:51] Speaker 03:
I understand.

[00:20:53] Speaker 03:
It seems like a sensible position for them.

[00:20:55] Speaker 03:
Your client is just in a different position.

[00:20:57] Speaker 01:
In reality, Your Honor, our client is in the same position.

[00:21:00] Speaker 01:
We have 10 cases pending with Uniloc.

[00:21:02] Speaker 01:
So we're not in a very different position than Apple is.

[00:21:06] Speaker 03:
But they're different than Apple.

[00:21:08] Speaker 03:
They're different than Apple.

[00:21:09] Speaker 03:
And are those others pending in Ending Cal, too?

[00:21:12] Speaker 01:
No.

[00:21:12] Speaker 03:
Are they all in Washington?

[00:21:14] Speaker 01:
They're on Washington.

[00:21:15] Speaker 01:
I think they're on Washington, Your Honor.

[00:21:17] Speaker 01:
And Texas, sorry.

[00:21:22] Speaker 01:
So moving on to the merits, unless Your Honors have any further question about the jurisdictional statements.

[00:21:31] Speaker 01:
I think to start out, it might be best to start where Judge Plager left off his discussion with my colleague from Apple.

[00:21:41] Speaker 01:
And I completely agree with Judge Plager.

[00:21:43] Speaker 01:
This is about the claims.

[00:21:46] Speaker 01:
And what Uniloc wants to do is they want to argue about elements and devices and things that simply don't appear in the claims.

[00:21:59] Speaker 01:
And they're trying to get this court to agree that something passes mustered under 101 based upon a claim that doesn't appear in the patent.

[00:22:11] Speaker 01:
Their two focuses for eligibility are a touch screen or a touch screen method that is used in a Bluetooth environment, some combination of those things together.

[00:22:23] Speaker 01:
But when we look at claim 10, the only claim they argued about in this case, and the claim that I think I heard the lawyer from Uniloc just mention was the claim that they're going to rise and fall on, that claim only mentions Bluetooth

[00:22:39] Speaker 01:
in the fact that the transceiver and the remote device are Bluetooth enabled.

[00:22:44] Speaker 01:
It doesn't say you have to ever use Bluetooth to do anything in the claim.

[00:22:50] Speaker 01:
It doesn't say the wireless connection is a Bluetooth connection.

[00:22:53] Speaker 01:
It doesn't say the message that's being broadcast is in Bluetooth format.

[00:22:58] Speaker 01:
It doesn't say the response being received is in Bluetooth format.

[00:23:02] Speaker 01:
It doesn't say anything about Bluetooth other than those two elements

[00:23:09] Speaker 01:
are Bluetooth enabled.

[00:23:11] Speaker 01:
That is the only mention of Bluetooth in the claim.

[00:23:14] Speaker 01:
And I would submit that this claim is a purely functional claim.

[00:23:19] Speaker 01:
In fact, when you look at the devices that are in the claim, and there are four of them, the transceiver, the remote device, the display device, and an input device, three of the four devices do nothing in the claim.

[00:23:35] Speaker 01:
They have no function in the claim.

[00:23:39] Speaker 01:
Unilock would argue that the transceiver is used to broadcast the message and receive the response.

[00:23:45] Speaker 01:
But in reality, the claim doesn't say that the transceiver broadcasts the message, and it doesn't say that the transceiver receives the response.

[00:23:54] Speaker 01:
Something is broadcasting a message.

[00:23:57] Speaker 01:
Something is receiving a response.

[00:23:59] Speaker 01:
But the claim is silent on what that something is.

[00:24:04] Speaker 01:
The same goes with the display device.

[00:24:06] Speaker 01:
You manifest the said remote device on the display device, but it doesn't say what the display device does.

[00:24:12] Speaker 01:
It doesn't say how it does it.

[00:24:15] Speaker 01:
Input device is the same way.

[00:24:17] Speaker 01:
You register a contact provision on the input device, but it doesn't say how you do it, what's doing it, or what's unique about that.

[00:24:25] Speaker 01:
The elements of this claim

[00:24:28] Speaker 01:
Establishing a wireless connection, broadcasting a message, receiving a response, and transmitting a command are simply well-known routine and conventional steps in establishing a wireless network and communicating across it.

[00:24:43] Speaker 01:
It's nothing different than what's been going on for years.

[00:24:47] Speaker 01:
Judge Plager mentioned going all the way back to Patton right after World War II.

[00:24:51] Speaker 01:
When I was thinking about this case, I was thinking about the radio operators in World War II.

[00:24:55] Speaker 01:
They broadcast a message all the time and receive responses back all the time across their radios.

[00:25:00] Speaker 01:
They weren't necessarily directing it to one individual.

[00:25:02] Speaker 01:
They were detecting who's ever on their frequency.

[00:25:05] Speaker 01:
So that's what we have in this case.

[00:25:07] Speaker 01:
This claim is just a broad functional claim that has no specific means or method to improve computer functionality, which is why it's abstract under claim one, which is under Alice step one, which is what the district court found.

[00:25:24] Speaker 01:
With respect to step two,

[00:25:28] Speaker 01:
There is no inventive concept.

[00:25:30] Speaker 01:
The first place we have to start in step two again is the claims.

[00:25:33] Speaker 01:
And what this court has said is, set aside the abstract idea.

[00:25:37] Speaker 01:
What else is in the claims that would transform that idea into a concrete concept?

[00:25:43] Speaker 01:
Well, once you set aside the abstract idea here, there's nothing else.

[00:25:47] Speaker 01:
It's simply absent of anything else.

[00:25:49] Speaker 01:
This claim has no specificity.

[00:25:52] Speaker 01:
None of the claims have any specificity.

[00:25:55] Speaker 01:
And under step two, that dooms this claim.

[00:25:59] Speaker 04:
How about claim 11?

[00:26:03] Speaker 01:
Yes, Your Honor.

[00:26:03] Speaker 01:
Claim 11 is the apparatus claim.

[00:26:06] Speaker 01:
And if we look at that claim, we can see that the beginning portions of it, and I would agree with Your Honor, bus, processor, transceiver, display device, input device, they're all physical things.

[00:26:21] Speaker 01:
But they're extremely abstract physical things.

[00:26:24] Speaker 01:
We're not exactly sure what they are.

[00:26:25] Speaker 01:
More importantly, the claim doesn't say they do anything.

[00:26:29] Speaker 01:
They're just a bunch of physical things that have no functionality, aren't doing anything within this claim.

[00:26:37] Speaker 01:
Then we get down to what the processor does.

[00:26:40] Speaker 01:
And when you get to the processor, it's for performing the same abstract method that appears in claim one, the exact same abstract method.

[00:26:50] Speaker 01:
There's no specificity to it.

[00:26:52] Speaker 01:
There's no telling what's doing what, what's doing the establishing, what's doing the broadcasting.

[00:26:57] Speaker 04:
Actually, the second half of that claim is a method claim.

[00:27:02] Speaker 01:
Yes, Your Honor.

[00:27:03] Speaker 01:
I would agree that it's a performing method.

[00:27:06] Speaker 01:
I think this Court has agreed that a claim written in this format is an OK claim and not an IPXL claim.

[00:27:15] Speaker 01:
But it does incorporate the method, certainly, of claim one.

[00:27:20] Speaker 01:
And I would submit that this claim doesn't add anything, any specific components that would transform the abstract method into a concrete, into something concrete.

[00:27:35] Speaker 01:
Unless your honors have anything further for me, that's all I have.

[00:27:53] Speaker 00:
We had not thought to ask the district court for claim construction because we did not see an issue here.

[00:28:01] Speaker 00:
Well, you look at claim one, which is a method claim.

[00:28:04] Speaker 00:
It talks about having a transceiver in a remote device.

[00:28:10] Speaker 00:
And then there's a step of broadcasting.

[00:28:12] Speaker 00:
We would think it would be evident that the transceiver does the broadcasting.

[00:28:16] Speaker 00:
That's why it's in the claim.

[00:28:19] Speaker 00:
colleague here says, well, maybe it's there for some other purpose.

[00:28:24] Speaker 00:
We don't know.

[00:28:24] Speaker 00:
It's not really doing anything.

[00:28:26] Speaker 00:
So that's a claim construction issue which I

[00:28:29] Speaker 00:
Didn't see.

[00:28:30] Speaker 00:
It's somewhat bizarre.

[00:28:31] Speaker 00:
But when I listened to his argument, I started looking for other claims.

[00:28:35] Speaker 00:
I looked at Claim 21, where it makes quite clear the transceiver does the transmitting.

[00:28:40] Speaker 00:
And that's why it's there.

[00:28:42] Speaker 00:
So I think if my colleague is raising a claim construction issue in this appeal, that will be a reason to deny 101.

[00:28:48] Speaker 00:
Frankly, I think the claim is pretty easily construed.

[00:28:51] Speaker 00:
The transceiver is doing the transmitting.

[00:28:53] Speaker 00:
That's why it's there.

[00:28:55] Speaker 03:
Questions?

[00:28:55] Speaker 03:
Thank you.

[00:28:56] Speaker 03:
We back both sides in the case system.

[00:29:06] Speaker 03:
Our argument is 182340, United Technologies versus General Electric.