[00:00:00] Speaker 03:
The next case is Cardionet versus Infobionic 2020-10-18.

[00:00:08] Speaker 03:
Ms.

[00:00:12] Speaker 03:
Percuta.

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

[00:00:15] Speaker 01:
Good morning, Your Honors.

[00:00:17] Speaker 01:
May it please the court, the district court decision here finding ineligible two Cardionet patents that improve cardiac monitoring systems

[00:00:29] Speaker 01:
airs in two fundamental ways.

[00:00:31] Speaker 01:
First way relates to ALICE step one.

[00:00:34] Speaker 01:
It was error for the district court to disregard the specification in finding that the claims are directed to an abstract idea when the specification specifically identifies how the claimed invention improves cardio net monitoring systems and provides advantages over the prior art.

[00:00:52] Speaker 01:
And this includes advantages such as accuracy, clinical value,

[00:00:57] Speaker 01:
and so on, and efficiency and so on.

[00:01:00] Speaker 03:
But Council, we're not dealing with Section 103.

[00:01:03] Speaker 03:
We're dealing with 101.

[00:01:06] Speaker 03:
When you look at the 850 patent claims, as we must, claims recite a system reporting data, receiving data, processing data, and 996 similarly deals with passing data back and forth.

[00:01:27] Speaker 03:
These are abstractions, are they not?

[00:01:30] Speaker 01:
No, Your Honor.

[00:01:31] Speaker 01:
We have to look at every claim element as well as the order combination in assessing this.

[00:01:38] Speaker 01:
And Your Honor, if you, step one of ALIS requires that we look to the specification to identify improvement over the prior.

[00:01:47] Speaker 01:
The specification does do so.

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And when you look at the claims themselves, they actually go to the exact invention here.

[00:01:55] Speaker 01:
This is taking machine-identified atrial fibrillation or arrhythmia events, having human assessment of a subset of those events, finding the correlation or the necessary correlation between those two sets of data, and then generating a very, very specific display that allows tremendous increase to diagnosis

[00:02:21] Speaker 01:
and finding of therapeutic approaches for doctors in treating patients specifically for atrial fibrillation but certainly also applies to other arrhythmia.

[00:02:31] Speaker 01:
So here what we're talking about is an entire system that involves pulling data from a cardiac monitoring device together with what's happening at the central monitoring station where there's a trained technician reviewing that data

[00:02:46] Speaker 01:
and then pulling all that information together specifically to present it in a very specific manner so that the doctor can find it useful and be able to properly treat their patients.

[00:02:57] Speaker 01:
The specification claims that this is an advantage over the prior art.

[00:03:01] Speaker 01:
There is no evidence on the record that this exact methodology is a long-standing practice by doctors other than just one analogy that's put forward by Infobionics.

[00:03:12] Speaker 01:
which is insufficient, there's nothing there that shows that this is a longstanding practice, much less so the type of overwhelming evidence that the recent Federal Circuit decision in CardioNet requires in order for something to be recognized as a longstanding fundamental practice.

[00:03:31] Speaker 03:
But a longstanding practice has been cited as relevant to our consideration of abstractness

[00:03:39] Speaker 03:
But an idea is still an idea, isn't it?

[00:03:42] Speaker 03:
If information, passing information back and forth is abstract, then is it conclusive that the practice may not have been undertaken previously as an old and established practice?

[00:04:05] Speaker 01:
Your Honor, if you abstract this invention to the level of just passing information back and forth, then that particular idea would be problematic.

[00:04:14] Speaker 01:
But that's not what the claims here are directed to.

[00:04:16] Speaker 01:
And in particular, you have to account for every single element in these claims and note the specificity with which this claim is limited in terms of how that data is assessed, put together, and presented to the

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So we are not by any means trying to preempt an entire way of passing data back and forth.

[00:04:40] Speaker 01:
We're not even saying we're trying to do that in the cardiac monitoring field.

[00:04:44] Speaker 01:
This is a very specific set of claims directed to an invention that has already been proven to be, you know, it has gathered industry praise.

[00:04:54] Speaker 01:
One of the inventors is one of the foremost electrophysiologists in the country with over 30 years of experience.

[00:05:01] Speaker 01:
talking about the fact that he has never seen a data presentation.

[00:05:04] Speaker 06:
Ms.

[00:05:04] Speaker 06:
Fukuda, this is Judge Chen.

[00:05:06] Speaker 06:
Just so I understand the playing field, it was already well known and established to have a monitoring system configured to detect physiological data and then identify arrhythmia events from that physiological data.

[00:05:25] Speaker 06:
That's right?

[00:05:27] Speaker 00:
That particular aspect did exist.

[00:05:30] Speaker 06:
Yes, Your Honor.

[00:05:31] Speaker 06:
So then what if the claim just said that a monitoring system that's going to detect physiological data and then identify arrhythmia events from that data and then in addition have a person review that report of arrhythmia events from the monitoring system to

[00:06:00] Speaker 06:
make his or her own independent assessment of whether the monitoring system's report of events was correct or incorrect in different places.

[00:06:17] Speaker 06:
Would that be a patent-eligible invention?

[00:06:21] Speaker 01:
That would be a much broader set of inventions than claimed in these claims.

[00:06:25] Speaker 06:
I understand that.

[00:06:26] Speaker 06:
I'm trying to figure out my hypothetical.

[00:06:29] Speaker 06:
Okay.

[00:06:30] Speaker 06:
Putting on top of already well established way of detecting arrhythmia events by inserting a human being to take a look at that report out and fine tune that report out by providing his or her own views on the relative accuracy of the monitoring systems report out on arrhythmia events.

[00:06:56] Speaker 06:
Would that be a patent eligible invention?

[00:06:59] Speaker 01:
I would say that that gets much closer to a not eligible patent invention because what I'm not seeing here is the software innovation that's required to be able to find correlation and so forth.

[00:07:15] Speaker 06:
So where in your claim, pick a claim and then show me where in your claim you've got something that distinguishes

[00:07:26] Speaker 06:
that claim from my hypothetical such that I can feel like this is not just an abstract idea, but this is in fact some improvement, some technical improvement to a monitoring system.

[00:07:43] Speaker 06:
That's what I'm curious about.

[00:07:45] Speaker 01:
Sure.

[00:07:45] Speaker 01:
Yes, Your Honor.

[00:07:46] Speaker 01:
Let's take a look at the 996 patent at claim 23.

[00:07:54] Speaker 05:
Did you recite this in your blue brief somewhere?

[00:08:02] Speaker 01:
We discussed all the claims in terms of their commonalities, but if you turn to Appendix 61, my apologies, Appendix 62, you'll see that Claim 23, which is one of the claims at issue here.

[00:08:24] Speaker 01:
Okay, so in Claim 23, this is a cardiac monitoring system that's being claimed.

[00:08:35] Speaker 01:
And Judge Chen, it does mention the aspect you mentioned, you had discussed regarding a monitoring system here.

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But note that, you know, obviously this one is limited to a specific type of event, atrial fibrillation event.

[00:08:51] Speaker 01:
And then you also have a monitoring station for receiving that data.

[00:08:54] Speaker 01:
So if we get past that, we get to the next element, which is a processing system, which is configured to receive this information.

[00:09:04] Speaker 01:
And so even if you assume for now that everything before this is abstract, you get to a very particular situation here where you take this data, and then you receive a human assessment of the subset of this machine identified event.

[00:09:19] Speaker 01:
And in the next element, you're pictographically presenting

[00:09:22] Speaker 01:
all of that assessed and combined data.

[00:09:25] Speaker 01:
And you're doing it in a very specific manner.

[00:09:29] Speaker 01:
So you're going to depict this for multiple time intervals in our defined time period in alignment with indications of atrial fibrillation activity.

[00:09:38] Speaker 01:
And on top of all of that, you'll see there's the phrase that says during the defined period such that heart rate trend is presented with atrial fibrillation event burden.

[00:09:49] Speaker 01:
and a range of heart rates and a heart rate average are displayed for each of the multiple time intervals.

[00:09:57] Speaker 01:
Now atrial fibrillation burden or event burden is defined in the specification as having to take into account the number of episodes of atrial fibrillation as well as the duration.

[00:10:12] Speaker 01:
And specification says that being able to present all of this data together

[00:10:17] Speaker 01:
has very important clinical value for therapeutic reasons.

[00:10:22] Speaker 01:
You know, doctors now for the first time can look at that data in alignment with each other to figure out when are these atrial fibrillation episodes happening during the day?

[00:10:32] Speaker 01:
Is there a pattern?

[00:10:34] Speaker 01:
Is something else happening?

[00:10:36] Speaker 01:
What's the heart rate at that time?

[00:10:38] Speaker 01:
What's the variation across the heart rate?

[00:10:40] Speaker 01:
And there is evidence in the record that this has led to significant improvement in terms of therapy.

[00:10:45] Speaker 01:
particularly for an electronic cardiac monitoring system where you have so much data that's coming in over 24 hours over the duration of a week or two.

[00:10:55] Speaker 01:
You know, this invention specifically.

[00:10:57] Speaker 03:
But counsel, brilliance and usefulness do not necessarily negate abstractness, do they?

[00:11:09] Speaker 01:
Not by itself, Your Honor.

[00:11:10] Speaker 03:
We see a lot of very fine ideas.

[00:11:15] Speaker 03:
That doesn't mean that they're necessarily eligible for patent.

[00:11:21] Speaker 01:
Your Honor, not by itself.

[00:11:23] Speaker 01:
There's certainly case law saying that the mere brilliance is not enough.

[00:11:27] Speaker 01:
But what we have here is a specific combination of a specific application in a technological field with specific limitations

[00:11:39] Speaker 01:
that also leads to brilliance and innovation in clinical.

[00:11:42] Speaker 01:
And the specifications claim it, and the record evidence does not refute it.

[00:11:47] Speaker 01:
Under the recent cardio net decision issued from this court, this results in exactly the same finding of non-abstractness.

[00:11:54] Speaker 01:
And we will get to step two, Your Honor, but I reserve that if possible, unless you have any questions on step two right now.

[00:12:03] Speaker 02:
So what is the relationship

[00:12:06] Speaker 02:
What this is doing is scrubbing out irrelevant data.

[00:12:13] Speaker 02:
Is that the point?

[00:12:16] Speaker 01:
No, Your Honor.

[00:12:17] Speaker 01:
Well, that's a part of it.

[00:12:19] Speaker 01:
Obviously, one of the problems

[00:12:22] Speaker 01:
specifically with electronic cardiac monitoring devices is that they could have this artifact noise that shouldn't be counted.

[00:12:29] Speaker 01:
So having human assessment of the subset of it and then finding a correlation is important to make sure that the data that's being presented isn't just clouded by noise.

[00:12:39] Speaker 01:
So that's one aspect of it, but certainly not all of it because then you have to take that data and actually present it in a way that's useful to the practitioners and the physicians

[00:12:50] Speaker 01:
for use in diagnosis and treatment.

[00:12:54] Speaker 02:
What does that mean, graphing it?

[00:12:57] Speaker 01:
Presenting it in a display in the specific manner claimed here so that they can look at the information in alignment with each other.

[00:13:06] Speaker 01:
Just because someone has atrial fibrillation does not give the doctor specific information about when in the day it's happening, what else is going on with the heart rate at that time, how does it change it from minute to minute, hour to hour,

[00:13:20] Speaker 01:
And not being able to do that over the course of a week or two is sort of the state of the art at the time.

[00:13:28] Speaker 03:
The doctors are kind of... Council, Council, let's hear from the Pellee and we will save three minutes of rebuttal time for you.

[00:13:36] Speaker 03:
Mr. Grant?

[00:13:36] Speaker 04:
Your Honor.

[00:13:37] Speaker 04:
Thank you.

[00:13:38] Speaker 04:
May it please the Court?

[00:13:39] Speaker 04:
I want to make one very important point.

[00:13:41] Speaker 04:
Council for CardioNet said it requires a very, very specific display.

[00:13:46] Speaker 04:
Below, in plaintiff's opening claim construction brief, which is not in the appendix, but it's in the record, at page 12, Cardionet said, quote, the claims impose no limitations on how the information must be pictographically presented and would include any form of pictographic presentation of the required data, end quote.

[00:14:05] Speaker 04:
In the appendix at 11495, which is the claim construction hearing transcript, Cardionet's counsel said, it doesn't even have to be a graphic.

[00:14:15] Speaker 04:
It can be in any form, and at column four, line six to seven, it says a graph is not required.

[00:14:21] Speaker 04:
So please let me disabuse.

[00:14:24] Speaker 03:
Mr. Grant, you might lower your voice a bit.

[00:14:27] Speaker 03:
We can hear you very well.

[00:14:28] Speaker 04:
I apologize.

[00:14:29] Speaker 03:
Sorry to shout.

[00:14:31] Speaker 04:
I apologize.

[00:14:32] Speaker 04:
The point is, there is absolutely, it's absolutely incorrect to say that

[00:14:38] Speaker 04:
at specific displays required, expressly that was disclaimed.

[00:14:42] Speaker 04:
Now, with regards to the monitoring system, if you look.

[00:14:45] Speaker 06:
Well, at least, Mr. Grant, at least for claim 31 of 850, which for me I'm looking at as one of the representative claims, it does say you're presenting the heart rate data and the arrhythmia event data on a, using a common time scale.

[00:15:03] Speaker 06:
So is there, at least in this particular claim itself, it's expressly,

[00:15:09] Speaker 06:
explaining to you how these two sets of data should be displayed?

[00:15:15] Speaker 04:
Well, all it's saying, Your Honor, and as I noted, they say there's no limitation on how to do it, but all they're saying is that you have to display it on a common time scale.

[00:15:25] Speaker 04:
That's exactly the situation in trading technologies and electric power.

[00:15:29] Speaker 04:
And if you look at the red brief

[00:15:31] Speaker 04:
at pages 39 to 41, you can compare the graphs with electric power, trading tech, and the University of Florida, which were far more detailed, included a common time scale, and were all found to be abstract and not patent eligible.

[00:15:48] Speaker 04:
In fact, what we're doing here, Judge Chan, to use your analogy, is the data is coming in from the pacemaker or the prior art system.

[00:15:56] Speaker 04:
It's going to the interns, which are the system,

[00:16:00] Speaker 04:
It's then being spot checked by a nurse or some other cardiac technician, and then it's being displayed with, as I noted, no limitations on how that display is occurring other than in claim 31, a common time scale.

[00:16:16] Speaker 04:
That does nothing but, as in SmartGene, do what doctors have done routinely for years.

[00:16:25] Speaker 04:
So the next issue that I would take on, Your Honor, is this idea that, and I think Judge Laurie caught it, the idea that you need to have evidence that something is conventional in the record to find it abstract.

[00:16:39] Speaker 04:
That's not the case.

[00:16:40] Speaker 04:
There's two ways to find abstraction.

[00:16:42] Speaker 04:
One way is by a long-standing practice, which CardioNet says there's no evidence of, but as we know in ALICE,

[00:16:51] Speaker 04:
there was no evidence that the information there was a part of a long-standing practice.

[00:16:58] Speaker 04:
And if you look at the citation analysis to the concurrence from this court's opinion, which cites no record evidence because it was straightforward and known.

[00:17:08] Speaker 04:
And if you look, for example, at the electric communication technologies case from a couple weeks ago, it says,

[00:17:15] Speaker 04:
the fundamental business practice of providing advance notification of pickup and delivery or supplying customers with order numbers and customer information, those were known despite the fact that there was no evidence.

[00:17:29] Speaker 04:
And in Capital One, we have exactly the same situation where the ordering of that information was found to be longstanding.

[00:17:41] Speaker 04:
Regardless, it's still abstract.

[00:17:43] Speaker 04:
if it's human performable.

[00:17:45] Speaker 04:
And FLUKE stands for that, as does the trading technologies case regarding a new arrangement of data, the SAP case and a new statistical analysis.

[00:17:55] Speaker 04:
And again, the electric communications case, which assumed that the claim 11 was a new way of doing it.

[00:18:04] Speaker 04:
So that doesn't impact the analysis.

[00:18:08] Speaker 04:
The last point that I think is important for the court to consider is the procedural posture of this case, particularly as compared to the 207 appeal.

[00:18:16] Speaker 04:
In this case, albeit a motion on the pleadings, that motion on the pleadings went up after fact discovery was complete, not started, complete.

[00:18:25] Speaker 04:
After claim construction hearing, not had started, but was complete, fully argued, and if you look at the transcript of the hearing on this motion,

[00:18:33] Speaker 04:
you'll see the court asking questions about the interaction between the arguments presented by Cardionet at claim construction and here.

[00:18:41] Speaker 04:
And notably, despite the fact that this is a 12C and that Cardionet had the opportunity to put in affidavits, in fact they put one in that's not really germane to any of the issues before the court, they had a full and complete evidentiary record had they been able to identify any factual issue and then the court would arguably have had to convert it

[00:19:01] Speaker 04:
to summary judgment.

[00:19:02] Speaker 04:
So the procedural posture here is entirely different from the 207, aside from the substantive differences that were pointed out by, I believe, Judge Dyck of what was being claimed to be improved in the 207, as opposed to the mere display of information in this case.

[00:19:28] Speaker 04:
If the court doesn't have

[00:19:30] Speaker 04:
any additional questions with regard to these straightforward patents that are focused purely on gathering information using conventional pacemakers, taking that information and identifying arrhythmia events using conventional technology, having that being spot checked by a human and then pictographically displayed with absolutely no limitation whatsoever on how it should be displayed

[00:19:58] Speaker 04:
other than arguably the one limitation in claim 31 that says a common time scale, then what I would say is the district court's ruling was substantively and procedurally proper.

[00:20:09] Speaker 04:
Having a human spot check, a machine's results and displayed data in a purportedly new arrangement is just as abstract as the claims in TradingTech, Electric Power, and University of Florida, and no additional evidence is needed here anymore in those cases.

[00:20:25] Speaker 04:
Humans have long performed the activity recited in the claims, reviewing physiological data to identify events, seeking second opinions, and graphing, albeit with no limitation, the data.

[00:20:37] Speaker 04:
But even if these activities hadn't been performed under the court's controlling precedent, they remain abstract.

[00:20:44] Speaker 04:
The eligibility ruling came on 12C after discovery, after claim construction, and after Cardionet amended its complaint three times

[00:20:53] Speaker 04:
The last time of which was after the 101 motion was already on file.

[00:20:57] Speaker 04:
And even after all of that, there are no material fact issues that Cardionet has identified and certainly none that they identified to the district court.

[00:21:05] Speaker 04:
The trial court's judgment should be affirmed.

[00:21:08] Speaker 04:
Thank you.

[00:21:08] Speaker 06:
Mr. Grant, you may know Federal Circuit case law better than I do.

[00:21:14] Speaker 06:
What was that one case called Electric Communications?

[00:21:20] Speaker 04:
Yes, Your Honor.

[00:21:21] Speaker 04:
Electric communication technologies.

[00:21:23] Speaker 04:
It came out on May 14th, and it's cited in the supplemental authority that is before the court, so it is part of the record.

[00:21:32] Speaker 04:
That was also a motion for judgment on the pleadings.

[00:21:36] Speaker 04:
It was a motion where this court found that those two issues I said, providing advanced notification, supplying customers order numbers and the like,

[00:21:46] Speaker 04:
that those were long-standing practices that were abstract without evidentiary support for that.

[00:21:52] Speaker 04:
And it then went on to say that the patentee argued that because an abstract idea was unique, that it was somehow different.

[00:22:01] Speaker 04:
And the court there assumed that the techniques were groundbreaking, innovative, but that that is not enough for eligibility.

[00:22:10] Speaker 04:
And in so doing, the court found the patented issue ineligible under 101

[00:22:16] Speaker 04:
And the citation I have is 958 F3 beginning at 1178.

[00:22:24] Speaker 04:
Okay, thank you.

[00:22:28] Speaker 03:
Yes, sir.

[00:22:29] Speaker 03:
Any further questions from the panel?

[00:22:33] Speaker 03:
Thank you, Mr. Grant.

[00:22:34] Speaker 04:
Thank you, Your Honor.

[00:22:36] Speaker 03:
Ms.

[00:22:36] Speaker 03:
Fukuda has three minutes for rebuttal.

[00:22:39] Speaker 01:
Thank you, Your Honor.

[00:22:41] Speaker 01:
I've heard electric power come up a number of times.

[00:22:43] Speaker 01:
I would like to address that.

[00:22:45] Speaker 01:
Electric power does not apply to this case because it's clear there that the court found that the claims covered every potential solution to analyzing and displaying the data.

[00:22:55] Speaker 01:
And in fact, the actual claim says displaying the event analysis results.

[00:22:59] Speaker 01:
That is not our situation here.

[00:23:01] Speaker 01:
I know Mr. Grant likes to summarize that as being just displaying, but it's clear in every claim that the display has to be a very specific manner.

[00:23:09] Speaker 01:
It has to meet every one of those elements, and that's not the situation in electric power.

[00:23:13] Speaker 01:
Even though electric power has figures that are very fancy and complicated, none of that was in the claims, as it is in the carbonate claims here.

[00:23:21] Speaker 01:
I've also heard trading technologies being discussed regarding the display format.

[00:23:26] Speaker 01:
Your Honor, in our brief we note that there was a different trading technology, the Federal Circuit decision against CQG in 2017 where the eligibility of a patent was affirmed.

[00:23:39] Speaker 01:
And that also involved displaying market information.

[00:23:42] Speaker 01:
But there they did it in an inventive way.

[00:23:44] Speaker 01:
So it's not just the display that makes it abstract.

[00:23:47] Speaker 01:
It's how generally, you know, how broadly you're claiming the display that matters.

[00:23:52] Speaker 01:
In the University of Florida case, the patent itself acknowledged

[00:23:56] Speaker 01:
that this data was previously collected, analyzed, manipulated, and displayed, and that it simply proposes doing so with a computer.

[00:24:04] Speaker 01:
None of those cases apply here, because as we have presented, Your Honor, we have a very specific and inventive way of doing so.

[00:24:12] Speaker 01:
Our case is more like Data Engine versus Google, where a method for navigating through spreadsheets was found eligible and was applauded by the industry.

[00:24:22] Speaker 01:
We're also like the core wireless licensing versus LG electronics case, where a particular manner of summarizing and presenting information in electronic devices was found to be eligible.

[00:24:34] Speaker 01:
The claims were found to recite to a specific improvement over prior art systems, and it improved the speed of a user's navigation.

[00:24:42] Speaker 01:
So certainly there's precedent saying that it really depends on how specific your claims are, whether eligibility attaches.

[00:24:49] Speaker 01:
Your Honor, I know that Mr. Grant mentioned that there was a much slower record.

[00:24:54] Speaker 01:
And even if step one is not satisfied, we here do satisfy step two of an inventive concept in multiple elements of the claims as well as the order combination.

[00:25:07] Speaker 01:
There's plenty of record in our, plenty of arguments in our briefs.

[00:25:11] Speaker 01:
We'll rest on that in the interest of time.

[00:25:13] Speaker 01:
But there are multiple IPR decisions that verify that

[00:25:17] Speaker 01:
this combination and multiple elements were nowhere found in the prior art.

[00:25:21] Speaker 01:
And this is the best prior art that Infobionic could put in front of the TTO after one to two years of searching.

[00:25:27] Speaker 01:
And with that, Your Honor, we'll just rest on our brief.

[00:25:31] Speaker 03:
Thank you, Counsel.

[00:25:32] Speaker 03:
We have your arguments.

[00:25:33] Speaker 03:
And the case will be submitted.

[00:25:35] Speaker 03:
The case is submitted.

[00:25:36] Speaker 03:
Thank you.

[00:25:38] Speaker 03:
Thank you.

[00:25:38] Speaker 00:
Thank you.

[00:25:41] Speaker 00:
Dr. Bocourt is adjourned until tomorrow morning at 10 a.m.