[00:00:55] Speaker 03:
You can proceed, Kevin.

[00:00:57] Speaker 03:
Good morning, and may it please the court.

[00:01:00] Speaker 03:
If I could ask the court's indulgence for just a moment, I'd like to open with a few very brief remarks.

[00:01:06] Speaker 03:
The Patent Tribal Appeal Board should be reversed because it did not properly analyze the dividing steps of portioning rules and sliding time ranges.

[00:01:15] Speaker 03:
In fact, no such analysis is found in the board's decision.

[00:01:18] Speaker 03:
Had there been a proper analysis,

[00:01:21] Speaker 03:
the board would have identified a meaningful limitation in the dividing step, namely that the apportioning rules move with the sliding time ranges.

[00:01:30] Speaker 03:
That limitation effectively confines the claim.

[00:01:33] Speaker 02:
At 44 and 45 of the blueberry, you say that claim ones dividing and assigning steps are an improvement in the field of patient scheduling, that they provide meaningful limitations distinct from a judicial exception precedent, and that they are not abstract, therefore,

[00:01:51] Speaker 02:
under Alice Step 1.

[00:01:54] Speaker 02:
Did you raise that argument below?

[00:01:56] Speaker 02:
And if so, where is it in the record?

[00:01:59] Speaker 03:
Where is the abstract argument about the dividing step and the assigning step?

[00:02:05] Speaker 03:
That would be page 207 of the record in our brief before the Patent Tribal Appeal Board.

[00:02:16] Speaker 03:
And I believe that carries over onto page 209.

[00:02:25] Speaker 03:
207 and 208.

[00:02:29] Speaker 03:
So when the claims are considered as a whole, they are not abstracted at all.

[00:02:33] Speaker 03:
They are directed to a meaningfully limited scheduling method.

[00:02:37] Speaker 03:
And we refer then a few lines down to the assigning an appointment to a patient based on average patient scores and time ranges that can accept only a limited number of patients.

[00:02:47] Speaker 02:
Dividing and assigning steps.

[00:02:50] Speaker 03:
That's the dividing and the assigning steps.

[00:02:51] Speaker 03:
That's what that's referring to, yes.

[00:02:56] Speaker 01:
So is this something more than triage?

[00:03:02] Speaker 03:
It is quite a bit more than triage.

[00:03:06] Speaker 01:
How so?

[00:03:06] Speaker 01:
You look at patients and you divide them up into buckets according to how urgent the need is, and that may depend on multiple factors.

[00:03:17] Speaker 03:
And that goes to the scoring steps, which we're not arguing today.

[00:03:21] Speaker 03:
We're really focused on the dividing and the assigning steps, particularly the dividing step when it comes to the abstractness argument.

[00:03:29] Speaker 03:
So the sliding time range that's defined in the dividing step, that is a time range measured relative to the present.

[00:03:40] Speaker 03:
So the present is always advancing, therefore the time range is always advancing.

[00:03:44] Speaker 03:
That time range is associated with a set of scheduling rules.

[00:03:49] Speaker 03:
That is what we believe confines the claim to a practical application.

[00:03:53] Speaker 03:
It's very specific, non-preemptive, and therefore, we believe, not abstract, and should also serve as something more in step two.

[00:04:03] Speaker 02:
Isn't that what the person sitting in front of the doctor's office does?

[00:04:10] Speaker 03:
It is not impossible, I suppose, for a human being to practice the claimed method.

[00:04:19] Speaker 03:
It would be extraordinarily cumbersome and, as a practical matter, probably not realistic.

[00:04:25] Speaker 02:
That person would have to keep in mind... Why people come rushing into the doctor's office and one's bleeding profusely from a head wound and the other's aren't?

[00:04:35] Speaker 03:
Right, well, so this sliding time range in associated apportioning rules refers more to the possibility of having varying rules applied to different time slots in a physician's schedule.

[00:04:51] Speaker 03:
So, for instance, if the doctor has an unfilled time slot 60 days out, he can be very selective.

[00:04:58] Speaker 03:
And as that time slot moves in toward the present time, the rules associated with that time slot can change and can be much lesser.

[00:05:06] Speaker 03:
Sure.

[00:05:06] Speaker 02:
Somebody calls and says, I'd like my physical.

[00:05:09] Speaker 02:
And the receptionist person says, well, I can give you one 60 days out.

[00:05:16] Speaker 02:
And then as the 60 days approaches, the current virus de jure hits.

[00:05:23] Speaker 02:
And they say, sorry, you can't come in for your physical.

[00:05:27] Speaker 02:
What's the difference?

[00:05:30] Speaker 03:
Well, the difference, so in that scenario you've got the rules associated with a human being and there are rules associated with a time slot that have changed evidently.

[00:05:44] Speaker 03:
This defines a time range that automatically moves forward and automatically

[00:05:52] Speaker 03:
associates different scheduling rules with different time slots as time advances.

[00:05:56] Speaker 03:
So it's handled, it's automated for the human schedule.

[00:06:00] Speaker 03:
Do you know what PERT is?

[00:06:01] Speaker 03:
Pardon?

[00:06:02] Speaker 03:
PERT.

[00:06:04] Speaker 02:
I'm not familiar with that case, Your Honor.

[00:06:05] Speaker 02:
It's an engineering method.

[00:06:08] Speaker 02:
Is it?

[00:06:09] Speaker 02:
That has existed for a long time and it allows various part

[00:06:17] Speaker 02:
various parts of a complex procedure all arrive at the same place at the same time.

[00:06:25] Speaker 02:
And it can be used on a computer as a program, but it's also done by hand.

[00:06:34] Speaker 03:
It seems to me that there's some important differences there.

[00:06:37] Speaker 03:
I didn't hear in that description.

[00:06:38] Speaker 03:
Again, I apologize.

[00:06:40] Speaker 03:
I'm not familiar with PERC.

[00:06:41] Speaker 02:
It was used by the Army to mobilize military

[00:06:48] Speaker 02:
to the ship at the same time for shipping over to Kuwait.

[00:06:53] Speaker 02:
And the tanks came from one place and so on.

[00:06:56] Speaker 02:
Right.

[00:06:56] Speaker 03:
And that seems like a very complex logistical problem, but it also seems distinct from a scheduling problem.

[00:07:03] Speaker 02:
Why?

[00:07:04] Speaker 02:
They call the tank gunners a week before they're supposed to report in, and they have the tanks prepped up 60 days before.

[00:07:17] Speaker 02:
It's exactly that.

[00:07:19] Speaker 02:
It's a scheduling problem.

[00:07:20] Speaker 03:
It is a kind of scheduling problem, but it's a different kind of scheduling problem.

[00:07:25] Speaker 03:
So what I didn't hear in the description is a time range measured relative to the present time that advances and is associated with apportioning rules.

[00:07:37] Speaker 02:
We're going to evade Kuwait.

[00:07:40] Speaker 02:
All right.

[00:07:43] Speaker 02:
That's your time range.

[00:07:45] Speaker 02:
That's my time range.

[00:07:46] Speaker 02:
Yeah.

[00:07:46] Speaker 02:
All the divisions want to get there at the same time, you know.

[00:07:49] Speaker 03:
OK.

[00:07:51] Speaker 03:
And so as that time range advances, we would have to have apportioning rules that allow for changes in how those apportioning rules apply to different time slots.

[00:08:02] Speaker 03:
And that, again, seems a natural.

[00:08:04] Speaker 02:
Which is why I get my orders to report to the 24th Infantry Division, because I'm a National Guard JAG, and their JAG failed as physical.

[00:08:16] Speaker 03:
Well, Your Honor, I apologize.

[00:08:20] Speaker 03:
I'm not familiar with that method.

[00:08:22] Speaker 03:
But there is nothing in the record that's been raised.

[00:08:26] Speaker 02:
No.

[00:08:27] Speaker 02:
We're talking about standard business practices that people do with a pencil and paper.

[00:08:36] Speaker 03:
Again, there's nothing in the record

[00:08:39] Speaker 03:
establishes that.

[00:08:41] Speaker 03:
So I can't say that this is prior art, that it's well known.

[00:08:46] Speaker 02:
I understand not saying it's prior art.

[00:08:48] Speaker 02:
I'm saying that it's a standard practice of industry.

[00:08:54] Speaker 01:
What about the prior art piece of this appeal, Baccaro?

[00:08:59] Speaker 01:
Why

[00:09:02] Speaker 01:
Why is the board wrong about that?

[00:09:05] Speaker 01:
Put aside the 101.

[00:09:06] Speaker 03:
Sure.

[00:09:07] Speaker 03:
So, Vicaro does not teach a step of assigning.

[00:09:10] Speaker 03:
Neither does Chu, for that matter.

[00:09:12] Speaker 03:
Both are concerned with fundamentally different problems in assigning an appointment.

[00:09:18] Speaker 03:
You have, on the one hand, Vicaro that is a percolator system that assigns outreach responsibilities to staff so that they can be certain that

[00:09:32] Speaker 03:
patients are being properly served.

[00:09:35] Speaker 03:
And the closest that McCarroll comes to actually even mentioning an appointment is that its output, the output of its method is essentially a to-do list for staff so that they know who to reach out to and the basic types of problems and why they should reach out to that person.

[00:09:55] Speaker 03:
And the outreach can be face-to-face.

[00:10:00] Speaker 03:
At most, Vicaro discloses, in a very gross sense, the notion of an appointment.

[00:10:08] Speaker 03:
It does not disclose a step, and especially does not disclose the step of assigning an appointment to a patient without violating a portion of the rules associated with a dividing step.

[00:10:22] Speaker 03:
Those two steps have to be read together.

[00:10:26] Speaker 03:
They're intimately related to one another.

[00:10:29] Speaker 03:
The step of assigning even uses the exact same language referring to the apportioning rules as the dividing step.

[00:10:37] Speaker 03:
They're referring to the same rules.

[00:10:39] Speaker 03:
And in order to violate or not violate a rule of the dividing step, it has to be associated with a sliding time range, which again is absent.

[00:11:01] Speaker 03:
I see that I'm into my rebuttal time and there are no other questions.

[00:11:26] Speaker 00:
It might be the secret to the case.

[00:11:31] Speaker 00:
Good morning, your honors, or good afternoon, your honors.

[00:11:34] Speaker 00:
May it please the court?

[00:11:36] Speaker 00:
The board here properly affirmed the board, both on obviousness over the prior art and eligibility under Section 101.

[00:11:45] Speaker 00:
Affirmations of either ground or rejection will dispose of the appeal, but here we believe that both grounds are sound.

[00:11:51] Speaker 00:
So I will turn first to 103 and the Vacaro reference.

[00:11:55] Speaker 00:
I thought that in the motion that Wiley filed with the court that they were walking away from the discussion of Chu and had revised their brief accordingly.

[00:12:06] Speaker 00:
But regardless, the principal argument that Wiley is making is that Vacaro is not teaching assigning an appointment.

[00:12:14] Speaker 00:
The board relied on that assigning step, Vacaro, for that.

[00:12:19] Speaker 00:
It seems that while he is referring to paragraph 57, what the board relied on was paragraph 17.

[00:12:25] Speaker 00:
And what 17 of Baccaro teaches is quite clear.

[00:12:31] Speaker 00:
They discuss basically varying the type and the frequency of outreach based on whether it's a high acuity or low acuity patient.

[00:12:45] Speaker 00:
And so they discuss in terms of types of outreach they talk about.

[00:12:49] Speaker 00:
First, face-to-face encounter, they talk about telephone communication.

[00:12:56] Speaker 00:
And in terms of the frequency, they discuss for the higher levels, they talk about multiple or frequent outreach in a short period of time.

[00:13:05] Speaker 00:
And for the lower acuity, they discuss a less intense outreach schedule.

[00:13:13] Speaker 00:
So this combination of discussing schedules and discussing

[00:13:18] Speaker 00:
for patients with face-to-face communication or telephonic communication is what the board relied on as effectively teaching assigning appointments.

[00:13:27] Speaker 00:
It then returned to a CHU for the rules.

[00:13:33] Speaker 02:
You didn't take it.

[00:13:33] Speaker 02:
We read it.

[00:13:34] Speaker 00:
What said?

[00:13:35] Speaker 02:
I say you can take it that we read it.

[00:13:38] Speaker 00:
OK.

[00:13:38] Speaker 00:
But he was discussing CHU and talking about CHU not teaching it.

[00:13:41] Speaker 00:
And it's actually the combination is what the board relied on.

[00:13:44] Speaker 00:
Turning to eligibility, it's very clear here what the board correctly saw this method as simply generally directed to scheduling patients based on scoring parameters.

[00:13:58] Speaker 00:
This is nothing more than a method of organizing human activity.

[00:14:02] Speaker 00:
In fact, there is not even any computer limitations in the claim.

[00:14:06] Speaker 00:
So the board properly saw this as simply something that could be done with pencil and paper or, as you described,

[00:14:13] Speaker 00:
in the military setting, this type of thing, that is just simply organizing human activity.

[00:14:19] Speaker 00:
It's an abstract idea.

[00:14:20] Speaker 00:
There is nothing additional in the claim that would transform it into something that's patent eligible.

[00:14:25] Speaker 00:
If the court does not have any additional questions, I'm happy to proceed with the remainder of my time.

[00:14:31] Speaker 00:
Thank you so much.

[00:14:40] Speaker 03:
I'll be very brief.

[00:14:43] Speaker 03:
My colleague mentioned that Chu teaches a set of assigning and also that the fact that the claim includes certain abstract ideas like a method of organizing human activity, that that should be fatal.

[00:15:03] Speaker 03:
We disagree.

[00:15:04] Speaker 03:
I think that Alice is clear that you can have an abstract idea.

[00:15:08] Speaker 03:
in the claims and still have something more.

[00:15:10] Speaker 03:
In this case, we think that something more is the dividing step with sliding time ranges and associated apportioning rules.

[00:15:19] Speaker 03:
With respect to CHU, we again

[00:15:26] Speaker 03:
contend that Chu does not teach the step of assigning an appointment to a patient without violating apportioning rules.

[00:15:37] Speaker 03:
It can't be found in Chu.

[00:15:40] Speaker 03:
I searched.

[00:15:41] Speaker 03:
It's not there.

[00:15:41] Speaker 03:
I would challenge the court to do the same.