[00:00:04] Speaker 03:
We have one case this morning.

[00:00:09] Speaker 03:
Mantissa Corporation versus One Star Systems, Lone Star National Bank, 2017, 2533.

[00:00:19] Speaker 03:
Mr. DiMarco.

[00:00:27] Speaker 01:
Your Honor, it's John DiMarco for Plaintiff Appellant Mantissa Corporation.

[00:00:31] Speaker 01:
As a preliminary matter, we'd just like to make you aware that about 10 months ago, the parties negotiated a settlement based on vacator of the lower court decision.

[00:00:42] Speaker 01:
The parties jointly moved the lower court, and after receiving three rejections, moved this court for a vacator that was denied, and then subsequently this case was scheduled for

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

[00:00:56] Speaker 03:
We're well aware of that.

[00:00:57] Speaker 01:
Okay, thank you.

[00:00:58] Speaker 01:
May it please the court.

[00:01:00] Speaker 01:
The invention here was identity owner control over the use of their identity over computerized transaction networks.

[00:01:07] Speaker 01:
Let me ask you a step two question.

[00:01:09] Speaker 04:
Yes.

[00:01:10] Speaker 04:
Because the red brief says that despite Mantis' attempts

[00:01:17] Speaker 04:
to show the improvement to a computer network, MENTISA fails to explain how exactly the improvement identifies is a meaningfully concrete or transformative solution to something tangible.

[00:01:34] Speaker 01:
Yes, sure.

[00:01:36] Speaker 01:
The specification begins with explaining the problem with the prior art computer transaction networks and the solution, the main solution at the time in 2005 was something like LifeLock.

[00:01:50] Speaker 01:
a reactive method that would monitor transactions that would take place, store the information, analyze them.

[00:01:58] Speaker 01:
So then the proposal was to design a system that would solve the problem of identity fraud over these networks.

[00:02:07] Speaker 01:
They did it by adding structure to a network, and that structure included a separate pathway between the identity owner

[00:02:17] Speaker 01:
the holder of or the owner of, say, assets connected to the identity and the user, which was a bank or credit card company or credit reporting agency.

[00:02:28] Speaker 01:
Into that pathway was the service provider.

[00:02:29] Speaker 03:
If one looks at the claims, if one looks at the claims, don't they just recite transmission of information electronically?

[00:02:39] Speaker 01:
Yeah, they don't just recite that.

[00:02:41] Speaker 03:
And isn't that abstract?

[00:02:41] Speaker 01:
Right.

[00:02:42] Speaker 01:
He said it does include sending of information over that, but it requires a specific order of those communications and specific information in the communications.

[00:03:00] Speaker 01:
That's right, but I think that computer hardware is operated based on software.

[00:03:07] Speaker 01:
So a structure that's limited in a certain way by software still means there's a technology or structured hardware there.

[00:03:18] Speaker 01:
The service provider is described in the specimen.

[00:03:21] Speaker 02:
The technology is being used to protect the identity, protect the use of the identity.

[00:03:25] Speaker 01:
Exactly, yes.

[00:03:27] Speaker 01:
And the technology that was used included the addition of a service provider to a conventional transaction network of the kind that had the problems with a lifelock or reactive system.

[00:03:41] Speaker 01:
The user in the best position to know who might want to be accessing the assets, for instance, patient records, money, credit report, would prepare a template.

[00:03:53] Speaker 01:
And that's in the claims.

[00:03:55] Speaker 01:
It's phrased as parameters.

[00:03:56] Speaker 01:
Would prepare the parameters, send those to the service provider.

[00:04:00] Speaker 04:
The template simply puts information in, correct?

[00:04:02] Speaker 01:
The templates identify some kind of identification information is required and conditions for use, types of conditions for use.

[00:04:14] Speaker 01:
Okay.

[00:04:14] Speaker 01:
You're not there yet.

[00:04:16] Speaker 01:
That's fine.

[00:04:17] Speaker 01:
That's step one.

[00:04:18] Speaker 02:
It's a three-way transaction, right?

[00:04:20] Speaker 02:
You've got this person who has identity.

[00:04:22] Speaker 01:
Yes.

[00:04:23] Speaker 02:
And then there is a desire by that person

[00:04:27] Speaker 02:
to have some transaction occur with some other party.

[00:04:30] Speaker 01:
Right.

[00:04:30] Speaker 01:
A merchant or a source.

[00:04:31] Speaker 02:
Merchant or a source.

[00:04:34] Speaker 02:
And what the person who's owning your identity is saying to this middle person, there are some times I want my identity to be used and sometimes not.

[00:04:44] Speaker 01:
Right.

[00:04:44] Speaker 01:
Right.

[00:04:45] Speaker 01:
But the key is.

[00:04:46] Speaker 02:
And so what I'm asking you to do is you're protecting my identity.

[00:04:51] Speaker 01:
Right?

[00:04:51] Speaker 01:
Yes.

[00:04:51] Speaker 01:
It's an agent, the service bar, that can be thought of as an agent for the identity owner to control the use.

[00:04:58] Speaker 02:
And so what's new and novel?

[00:05:01] Speaker 01:
What's new?

[00:05:02] Speaker 01:
What's new?

[00:05:03] Speaker 02:
So the conventional transaction network included the- At the time the patent is filed, you're unaware, this is 102, 103 percent.

[00:05:12] Speaker 02:
You're unaware of anybody else who's doing this.

[00:05:14] Speaker 02:
So people aren't using computers for this transaction, right?

[00:05:21] Speaker 01:
No, they were.

[00:05:21] Speaker 01:
Because the LifeLock system was for credit card processing.

[00:05:25] Speaker 01:
The beginning of the background discusses the credit card fraud transaction problem.

[00:05:31] Speaker 01:
Credit cards were operated over computer transaction networks.

[00:05:37] Speaker 03:
But the question here isn't what's new.

[00:05:40] Speaker 03:
That's a 102 question.

[00:05:41] Speaker 01:
Yes.

[00:05:42] Speaker 03:
The question here is what is non-abstract.

[00:05:45] Speaker 01:
Right.

[00:05:45] Speaker 01:
Right.

[00:05:45] Speaker 01:
Right.

[00:05:46] Speaker 01:
And so what's non-abstract is the creation of this new service provider, or a separate service provider, in a pathway.

[00:05:55] Speaker 02:
You mean having a middle person in here?

[00:05:57] Speaker 01:
Yeah.

[00:05:58] Speaker 01:
I guess, so the way I look at it.

[00:06:00] Speaker 02:
Tell her to bank that's verifying the signature or

[00:06:05] Speaker 02:
a place where you're going to use your credit card, and they're saying, I'm not certain that you, let me show you your signature.

[00:06:11] Speaker 02:
There have been legal people involved in this three-way transaction for a long time.

[00:06:16] Speaker 01:
Isn't that correct?

[00:06:18] Speaker 01:
Well, no.

[00:06:19] Speaker 01:
That example is a two-way transaction.

[00:06:22] Speaker 01:
I think you're referring to the Balas reference cited by the lower court.

[00:06:25] Speaker 02:
I'm saying there's a third thing, something that's happening, to verify our relationship between the two players that are trying to use the card.

[00:06:33] Speaker 01:
So we have an identity owner here, a user, their bank, credit reporting agency, hospital holding their records, something like that.

[00:06:42] Speaker 01:
And then you have a source that wants to access the money or the patient records or the credit history.

[00:06:48] Speaker 01:
So there's already a three-party system to begin with.

[00:06:51] Speaker 01:
The service provider is added somewhere up here with a separate pathway over to the user to then control use of the identity.

[00:06:59] Speaker 00:
So the bank picks up the phone and calls

[00:07:03] Speaker 00:
the credit card owner and says, do you authorize this?

[00:07:06] Speaker 00:
What's different?

[00:07:07] Speaker 00:
Right.

[00:07:08] Speaker 01:
So the difference there is that's the user.

[00:07:10] Speaker 01:
That's the user.

[00:07:10] Speaker 01:
And it's the same thing as what's happening in the prior art, where you have somebody looking at a transaction that's taken place and then finding something suspicious.

[00:07:21] Speaker 04:
OK.

[00:07:21] Speaker 04:
I call down to the bank.

[00:07:25] Speaker 04:
And I say, I'm sending my secretary down to cash a check.

[00:07:30] Speaker 04:
Go ahead and do that.

[00:07:32] Speaker 04:
Have I just replicated your system?

[00:07:34] Speaker 01:
No, you haven't, because the agent of the identity owner is going to the user.

[00:07:43] Speaker 01:
They're going to the user, and the user is at the top of the decision hierarchy to determine whether use will take place.

[00:07:50] Speaker 01:
We are adding something to that structure with the service provider to take that control away.

[00:07:57] Speaker 01:
By adding the service provider and

[00:07:59] Speaker 01:
giving it only insufficient identification information, so it's not a point of exposure of the identification information and conditions for use.

[00:08:08] Speaker 04:
So I give my secretary a bearer letter that authorizes her as an agent to do that, or him as an agent.

[00:08:17] Speaker 01:
But again, they're going to the, they're going, they're contacting the user.

[00:08:21] Speaker 02:
The user is the one that's verifying identity.

[00:08:32] Speaker 02:
And he had sent information to that person to say, the way you'll know if it's my secretary is she has a white hat and a blue bag, then that would be your sister.

[00:08:43] Speaker 02:
Right.

[00:08:43] Speaker 02:
But those examples are.

[00:08:45] Speaker 02:
So without sounding rude, my question, that means so what?

[00:08:49] Speaker 01:
Right.

[00:08:49] Speaker 02:
So what's so.

[00:08:51] Speaker 01:
understood understood because but those examples are all referring to verification of identity none of those examples are referring to conditions for use the conditions for use are given in the

[00:09:11] Speaker 01:
Well, well, the conditions, well, the examples of the conditions for use are gas station from 5 p.m.

[00:09:17] Speaker 01:
to 6 p.m.

[00:09:18] Speaker 01:
when I'm driving home from work.

[00:09:20] Speaker 01:
I don't want anyone else charging something on my credit card outside those hours because that's going to be an imposter.

[00:09:26] Speaker 02:
Isn't that more sophisticated refinement of identifying the secretary?

[00:09:30] Speaker 02:
Well, well, I guess... Or saying it has to be the secretary who does it, only can do it between 11 and 12 because that's your lunch hour and if she does it any other time, you'll fire her.

[00:09:41] Speaker 02:
So I don't understand myself why the refinements are sufficient to lift the claims out of a... So you're presenting scenarios that I wouldn't argue are long-standing fundamental economic practices, but you're trying to find out what the source of the invention was.

[00:10:04] Speaker 04:
But they certainly are long-standing economic practices.

[00:10:06] Speaker 04:
That sort of thing happens in business all the time.

[00:10:09] Speaker 01:
The inventor was not trying to cover those types of arrangements.

[00:10:17] Speaker 01:
They had the ability to call their credit card company, cut up the credit card if they wanted to.

[00:10:22] Speaker 01:
He wasn't doing that.

[00:10:23] Speaker 01:
He came out of software engineering implementing credit card processing systems at banks.

[00:10:30] Speaker 01:
He knew that the user was

[00:10:33] Speaker 01:
at the top of the decision hierarchy, right?

[00:10:36] Speaker 01:
Now, even though they could mutually agree upon some conditions, the user could know about the conditions.

[00:10:44] Speaker 01:
He was proposing a system where the user didn't know the conditions.

[00:10:47] Speaker 01:
So now, if that secretary comes along.

[00:10:49] Speaker 02:
But when he had his goal in mind, he was able to go to software writing 101 and learn very quickly how to write the software to do this.

[00:11:00] Speaker 02:
and to buy himself a generic computer and feed the software into the computer.

[00:11:06] Speaker 02:
So the computer wasn't being asked to perform a trick it had never performed before in terms of being able to swallow that kind of software and process it effectively, right?

[00:11:18] Speaker 01:
The computer was being designed to do a trick it hadn't done before in a service provider.

[00:11:24] Speaker 02:
But there was nothing that would have prevented

[00:11:27] Speaker 02:
in DDR in the sense was that there was something in the way the computer functioned that said it didn't want to do that.

[00:11:33] Speaker 01:
We're not arguing that we're improving how an individual computer operates.

[00:11:42] Speaker 03:
That is your problem.

[00:11:44] Speaker 03:
You're not arguing structural changes in the computer.

[00:11:48] Speaker 03:
You're arguing change in the software relating to the transmission of information.

[00:11:54] Speaker 01:
That's part of it.

[00:11:55] Speaker 01:
We're also arguing that there's additional structure here that wasn't in conventional practice.

[00:12:01] Speaker 01:
The additional computer at the service provider location in a separate pathway between the identity owner and the user.

[00:12:11] Speaker 01:
And let me just finish about the service provider, because I can see a lot of skepticism here.

[00:12:16] Speaker 01:
So that service provider needs to receive parameters

[00:12:21] Speaker 01:
from the user specifying both identification information and conditions for use.

[00:12:28] Speaker 01:
The user did not have access to those conditions.

[00:12:31] Speaker 01:
In the examples I think you're talking about, I get the impression the user is going to maybe be aware of those conditions by either a letter that the agent might have.

[00:12:45] Speaker 01:
The user is the bank or the hospital with the records.

[00:12:50] Speaker 02:
The person is going to release the credit.

[00:12:52] Speaker 01:
Release the credit, release the funds, release the credit report.

[00:12:56] Speaker 02:
This terminology is a little bit... The amount of information that the owner of the identity can tell the intermediary so the intermediary can control whether the user releases the money is vast.

[00:13:09] Speaker 02:
There's no question about the number of restrictions.

[00:13:11] Speaker 02:
creatively that your patent would allow.

[00:13:15] Speaker 01:
Right, okay.

[00:13:16] Speaker 01:
So it wasn't as simple, I mean, they certainly, the invention for them, they realized they needed to address, they were trying to address identity fraud over these anonymous widespread computer networks.

[00:13:30] Speaker 01:
And they thought, how can we do this?

[00:13:32] Speaker 01:
Set up a service provider, okay.

[00:13:34] Speaker 01:
Well, the service provider needs to, it's not just as simple as that, because you want, you know, you've created a,

[00:13:39] Speaker 01:
another exposure point for the identification information.

[00:13:43] Speaker 01:
So they require only insufficient information at the service provider, it's in the claims, or sent to the service provider, but sufficient enough to locate the identity owner's conditions.

[00:13:55] Speaker 01:
Check the conditions, send that back to the user, the user then sends the response to the merchant.

[00:14:01] Speaker 01:
But here's the interesting, let's talk about the devaluation of identity.

[00:14:06] Speaker 01:
that occurs with this system.

[00:14:08] Speaker 01:
If somebody finds your credit card, they don't know what conditions you've imposed on it.

[00:14:14] Speaker 01:
They have to go out and sort of guess.

[00:14:16] Speaker 01:
You use it, try to attempt to use it at different locations, and if they're not lucky enough to guess the right conditions, they don't, it doesn't work.

[00:14:25] Speaker 01:
So they devalue the identity.

[00:14:27] Speaker 03:
Your time is just about exhausted, but why don't we hear from the other side and we'll give you three minutes of rebuttal back.

[00:14:40] Speaker 05:
Good morning, Your Honors, and may it please the Court.

[00:14:44] Speaker 05:
The District Court found Mantes's patents ineligible after multiple rounds of motions to dismiss practice, a summary judgment hearing, a claim construction hearing, libel and testimony.

[00:14:56] Speaker 02:
What did the District Court say the abstract idea is?

[00:15:00] Speaker 05:
So that that's found in appendix 14 and basically it was determining whether a given use of an identity is permitted based on information that is in itself insufficient to permit use of the identity and in for some of the claims a changeable set of conditions There's a block quote there from the judge

[00:15:32] Speaker 05:
And so what we see here is the key here is that it's reflected in the claims, which I can go through.

[00:15:42] Speaker 02:
Is this determining whether a given use, that whole thing, is that's the abstract idea?

[00:15:47] Speaker 05:
Yes.

[00:15:49] Speaker 05:
And what she did is it encapsulated multiple claims through this.

[00:15:58] Speaker 05:
And the key here is information, and really what this patent goes to is just this concept of... Does that sound abstract to you?

[00:16:05] Speaker 05:
In my view, it absolutely is, because really what we're talking about is just simply the idea of information that is insufficient to permit use of the identity and being able to use, provide information that's insufficient to a service provider.

[00:16:19] Speaker 05:
which is, I think, as we heard from the other side, basically.

[00:16:25] Speaker 02:
Why wasn't the abstract idea protection of the use of one's identity?

[00:16:31] Speaker 05:
I think that would also be a fair abstract idea for this at a somewhat higher level.

[00:16:35] Speaker 03:
Do the claims only recite steps which transmit information, or do they have physical, tangible steps in addition?

[00:16:46] Speaker 05:
Well, really, for example, claim one of the 027 patent, which is an appendix 75, that effectively, it just has three steps, receiving, determining, and sending.

[00:16:59] Speaker 05:
So the service provider receives the insufficient information effectively.

[00:17:03] Speaker 03:
She was saying that's all abstraction.

[00:17:05] Speaker 05:
It's just the same.

[00:17:06] Speaker 05:
It's just simply receiving data, making a determination, and sending it.

[00:17:10] Speaker 03:
What about claim one of the four, five, six patents?

[00:17:14] Speaker 05:
The only real difference there is we're talking about the ability to basically temporarily change the condition.

[00:17:22] Speaker 05:
So for example, I can, let's say in a credit card scenario, say I want to allow it for a while and then change it.

[00:17:30] Speaker 04:
You can call American Express and say I'm going to be overseas for two weeks.

[00:17:32] Speaker 04:
Exactly.

[00:17:33] Speaker 04:
In these countries.

[00:17:34] Speaker 05:
That's an example.

[00:17:36] Speaker 02:
Filling stations for this month, week in the month and not otherwise.

[00:17:40] Speaker 05:
That's right.

[00:17:41] Speaker 05:
It only works maybe, in the patent they have an example of it, doesn't work maybe at night.

[00:17:45] Speaker 04:
The only way I could see this thing working is if, for example, someone invented a chip that projected the fingerprint and the photo of the individual and then there was hardware which

[00:18:00] Speaker 04:
allowed the merchant to take the fingerprint.

[00:18:03] Speaker 04:
There's something along those lines.

[00:18:05] Speaker 05:
And I think here what we haven't ever seen is any actual inventive concept, any tangible technical improvement.

[00:18:14] Speaker 05:
The inventor had testified in the district court level in front of the judge

[00:18:21] Speaker 05:
that the inventions were used on conventional hardware, and I think that we've heard that admission here as well.

[00:18:28] Speaker 05:
So really the only difference from a conventional system was the interjection of this service provider, which as we heard was effectively a third-party intermediary.

[00:18:36] Speaker 05:
And that's exactly the construct in the Alice case.

[00:18:40] Speaker 05:
That was a third-party intermediary for a settlement situation.

[00:18:45] Speaker 05:
That was found abstract.

[00:18:46] Speaker 03:
In other words, that's just another link in the chain of transmission of information.

[00:18:50] Speaker 05:
It is, Your Honor.

[00:18:52] Speaker 05:
It's an intermediary to make the process better and more efficient in some way.

[00:18:58] Speaker 05:
But that's really all this patent covers, just this abstract idea of putting the service provider into this chain.

[00:19:07] Speaker 05:
And what we heard, too, was

[00:19:11] Speaker 05:
from the other side was that this service provider was in a pathway.

[00:19:15] Speaker 05:
But there's nothing in the claims that talks about any specificity about this particular pathway.

[00:19:21] Speaker 05:
That's the generic computer and or software that everyone agrees here was just generic.

[00:19:30] Speaker 05:
So there's no improvement to that software.

[00:19:32] Speaker 05:
There's no improvement to that system.

[00:19:33] Speaker 05:
It's just simply the service provider.

[00:19:36] Speaker 04:
And the other point here, too, is I think this was invented by the fuggers

[00:19:42] Speaker 04:
or 14th century when they came up with the idea of letters of credit?

[00:19:50] Speaker 05:
That may be.

[00:19:52] Speaker 05:
I think we found numerous.

[00:19:53] Speaker 05:
At the district court levels, there was a plethora of different examples being discussed at the hearing.

[00:19:59] Speaker 05:
One of them was a check example where banks had a book of checks, and you would confirm the check that had the same signature as the one in the book.

[00:20:08] Speaker 05:
That's another example.

[00:20:09] Speaker 05:
I think your example of the basically delegating certain responsibilities to an assistant or secretary and, for example, just telling the security guard at the bank or someone at the bank, I've told my secretary she has these rights.

[00:20:25] Speaker 05:
Maybe the bank keeps a book of the assistance and what the assistants are allowed to do with respect to financial transactions of the folks they work with.

[00:20:34] Speaker 05:
I think that's another example.

[00:20:36] Speaker 05:
It's a service provider.

[00:20:37] Speaker 04:
Yeah, they can cash checks up to $100.

[00:20:40] Speaker 05:
They can cash checks up to $100.

[00:20:41] Speaker 05:
You could write in a book.

[00:20:42] Speaker 05:
So everything in these patents, you could do with a phone.

[00:20:46] Speaker 05:
You could do with a piece of paper or pencil.

[00:20:47] Speaker 05:
Maybe not even that.

[00:20:48] Speaker 05:
You could probably just do in your head, as long as there's someone else you're dealing with and you've talked to, and they can remember things.

[00:20:55] Speaker 05:
That's about it.

[00:20:56] Speaker 05:
There's nothing remotely technical about these claims.

[00:21:01] Speaker 05:
And I think the other thing we talked about was this insufficient information.

[00:21:04] Speaker 05:
That's one thing in the brief talked about as a potential inventive concept.

[00:21:08] Speaker 05:
But the patent specification mentions that the insufficient information can be things like your name, your address, the last four digits of your credit card number.

[00:21:18] Speaker 05:
And these are all things that in our everyday lives we've called a 1-800 number and they asked for the last four digits of our credit card number.

[00:21:25] Speaker 05:
That's the same concept.

[00:21:26] Speaker 05:
It's insufficient information to use the credit card, but it is sufficient for someone on the other end of the line to identify who you are.

[00:21:34] Speaker 05:
And that's exactly the same concept.

[00:21:36] Speaker 05:
So it's insufficient information.

[00:21:38] Speaker 05:
It's not an inventive concept.

[00:21:41] Speaker 03:
Well, if these claims are abstract, as you say, if these are good ideas, how does one protect them?

[00:21:51] Speaker 05:
Well, I think the way, I think,

[00:21:54] Speaker 05:
As we heard, there could be definitely very specific implantations.

[00:21:59] Speaker 05:
For example, how is it that the service provider makes the determination?

[00:22:03] Speaker 05:
The claims, all they require is that it determines something.

[00:22:06] Speaker 05:
But if you had a claim that was specifically on, here's the software,

[00:22:12] Speaker 05:
steps you actually in hardware?

[00:22:14] Speaker 03:
Well, that was a still abstraction, is that what you think?

[00:22:17] Speaker 05:
Well, I think if you had a lot of detail about how the determining step, for example, worked, I think that would be a lot closer.

[00:22:25] Speaker 05:
I mean, for example, you could look at the SRI Cisco case.

[00:22:28] Speaker 02:
That would be sufficient to make this not an abstract idea or sufficient to make an abstract idea patternable?

[00:22:36] Speaker 02:
What's the difference?

[00:22:36] Speaker 02:
You're talking about adding some more bells and whistles at this intermediary person's position.

[00:22:43] Speaker 05:
I think that's probably more of a step two, if they found a step two in terms of inventive concepts.

[00:22:47] Speaker 05:
So like you said, it would still be abstract, perhaps.

[00:22:51] Speaker 02:
Right.

[00:22:51] Speaker 02:
But if each of these things you're adding are things you could write down with a pencil to tell the intermediary person to act or not act depending on those conditions, why does the enlargement of the number of potential stop orders that the intermediary has, why does that matter?

[00:23:09] Speaker 05:
I think what I was referring to, Your Honor,

[00:23:12] Speaker 05:
to clarify would be some real specifics about the actual processing and the improvement to a computer necessary for something like a service provider that actually ran on some sort of a tangible specific piece of hardware.

[00:23:24] Speaker 02:
But if it's done with a garden variety of software run through a generic computer.

[00:23:30] Speaker 05:
I think then it wouldn't

[00:23:31] Speaker 02:
I don't have a hard time understanding why you're giving this away.

[00:23:35] Speaker 02:
No.

[00:23:35] Speaker 05:
Well, I think this is a case where I think they're... I'm not sure what exactly the claim would look like where it would be... it would pass step two.

[00:23:44] Speaker 02:
I mean, here we have a patent that... Isn't the answer generally that in the electronics fields, if you start with an abstract idea, you'd better come up with something wild and crazy new that the computer's doing to save it from abstraction?

[00:23:57] Speaker 05:
That's right.

[00:23:58] Speaker 05:
That's right.

[00:23:58] Speaker 03:
In other words, not more abstraction.

[00:24:01] Speaker 05:
that's right more abstractions not gonna help you actually have to have something concrete uh... and i think this is a claim where

[00:24:10] Speaker 05:
is reflected in the SPAC and the dependent claims, it's not limited to even a particular field.

[00:24:15] Speaker 05:
For example, even if this had been limited to credit cards, I think we would still be in an abstract scenario.

[00:24:20] Speaker 05:
But this applies to credit card transactions, building key access.

[00:24:24] Speaker 05:
So in other words, actual physical security is an example they have that would be encompassed by the claims.

[00:24:29] Speaker 03:
In other words, this isn't a breadth issue.

[00:24:31] Speaker 03:
This is an abstraction issue.

[00:24:33] Speaker 03:
It's not a 112 issue.

[00:24:34] Speaker 05:
No, this is an abstract, this is an abstraction problem, and there's nothing in the claims that saves it from that in terms of... We have two patents here.

[00:24:44] Speaker 05:
That's right.

[00:24:44] Speaker 03:
They both suffer from the same infirmity?

[00:24:47] Speaker 05:
They suffer from the same infirmity in the district court.

[00:24:51] Speaker 05:
Her articulation of the abstract tried to account for the difference in some of the claims of the 456 patent, which was

[00:24:59] Speaker 05:
as we discussed a little bit earlier, that was the changeable nature.

[00:25:02] Speaker 05:
In other words, you can temporarily change your credit card limit or temporarily allow someone to do something with your identity, and then it changes back.

[00:25:09] Speaker 02:
I was a little puzzled by the Hail Mary you've got on Part C on page 60 of your brief.

[00:25:17] Speaker 02:
You say, heaven forbid we should

[00:25:20] Speaker 02:
reverse the district court on 101, then we ought to enlarge the judgment by dealing with the question of the transfer.

[00:25:31] Speaker 05:
That's right.

[00:25:31] Speaker 02:
You have to file a cross-appeal to make that argument, don't you?

[00:25:36] Speaker 02:
You can't ask us to enlarge the judgment in a reclibrary.

[00:25:40] Speaker 05:
Well, Your Honor, we believe we had properly preserved it since the... Well, let me just answer the question simply.

[00:25:47] Speaker 02:
I mean, you know what the rules are on cross-appeals.

[00:25:50] Speaker 02:
You're coming in here and saying, well, you'd like a different judgment to be issued.

[00:25:56] Speaker 05:
You make the fair point.

[00:25:57] Speaker 02:
And you can't do that without a cross-appeal.

[00:26:00] Speaker 05:
Which is why I crossed it out and wrote move.

[00:26:03] Speaker 05:
Okay.

[00:26:06] Speaker 05:
I agree, Your Honor.

[00:26:07] Speaker 02:
Well, the problem is we've had lots of times in the past.

[00:26:10] Speaker 02:
This is not an example of that.

[00:26:12] Speaker 02:
But for a long while, we had parties who were filing incorrect cross appeals in order to get another say in the last brief.

[00:26:20] Speaker 02:
And you didn't do that, which is fine.

[00:26:23] Speaker 02:
But your argument properly should have been presented, I believe, in a cross appeal if you're going to make it for the future.

[00:26:37] Speaker 05:
There were some other issues raised by Mantisa in his briefing, and if Your Honours would be interested, I could answer any further questions on that.

[00:26:44] Speaker 05:
If not, I would just yield the rest of my time.

[00:26:49] Speaker 03:
Fine.

[00:26:49] Speaker 03:
Thank you, Mr. Smith.

[00:26:50] Speaker 03:
Thank you, Your Honour.

[00:26:51] Speaker 03:
Mr. DiMatto, three minutes if you need it.

[00:26:55] Speaker 03:
Thank you.

[00:26:57] Speaker 01:
So I think two cases are helpful to analyzing this situation.

[00:27:03] Speaker 01:
The first one is McRoe.

[00:27:05] Speaker 01:
McRoe involved steps that were intended to be performed on a computer, although there's no computer hardware recited in the claims.

[00:27:15] Speaker 01:
And this court found that the unconventional steps

[00:27:21] Speaker 01:
in a certain order brought the subject matter out of abstractness and found it past ALICE step one.

[00:27:32] Speaker 01:
The second case I find helpful is ANCORA.

[00:27:35] Speaker 01:
The claim is just, it was to software licensing where key information that could have been in any memory was located in the BIOS memory of a computer.

[00:27:47] Speaker 01:
And the lower court found that to be abstract.

[00:27:54] Speaker 01:
Putting the key information in the bios memory is just one of the many memories.

[00:27:59] Speaker 01:
You can put it in no big deal.

[00:28:01] Speaker 01:
How do you deal with fair warning?

[00:28:04] Speaker 01:
Fair warning tracks the prior art.

[00:28:07] Speaker 01:
It's a reactive system that looks for suspicious activity and then alerts somebody after the suspicious activity has occurred.

[00:28:17] Speaker 01:
So very much like the reactive system that we talk, that the inventor specifically says they want to design an improvement over.

[00:28:29] Speaker 01:
So we don't find fair warning.

[00:28:32] Speaker 01:
But our claims are intended to improve upon a fair warning type system.

[00:28:38] Speaker 01:
But back to NCORA, the – moving the key information or locating this key information in BIOS memory versus other memory was found by this court to be something significant.

[00:28:50] Speaker 01:
Why?

[00:28:50] Speaker 01:
Because a hacker has a harder time to access the BIOS memory of a computer than other parts.

[00:28:57] Speaker 01:
Similarly, we've moved key information of these conditions known only to the service provider and the identity owner offsite from the user into a, you know, into the service provider.

[00:29:11] Speaker 01:
If a hacker is going to enter the system, they're most likely going to go to the user where the property is.

[00:29:18] Speaker 01:
It's going to be harder for them to access both the user and the service provider.

[00:29:26] Speaker 01:
I think that's a start.

[00:29:27] Speaker 01:
That's a start.

[00:29:28] Speaker 01:
But look, there's also the insufficient information in there.

[00:29:32] Speaker 01:
And I think it was a very novel concept that really no one saw until about 2013 here.

[00:29:38] Speaker 01:
So the concept of insufficient information even was novel at the time, just alone.

[00:29:45] Speaker 01:
Tokenization is the, we explain this in our gray brief, is something that is now prevalent.

[00:29:52] Speaker 04:
OK.

[00:29:52] Speaker 04:
OK.

[00:29:52] Speaker 01:
Yeah.

[00:29:53] Speaker 01:
It's 1970.

[00:29:55] Speaker 04:
And I'm on guard duty outside of Firebase, and somebody gives me the wrong, I give the sign, they give the wrong counter sign.

[00:30:05] Speaker 04:
That's insufficient information, and I shoot them.

[00:30:08] Speaker 01:
Well, I think you're talking insufficient identification information.

[00:30:14] Speaker 01:
Right.

[00:30:14] Speaker 01:
Well, there's certainly examples of insufficient information everywhere, but the use of it here was new in computer transaction processing by virtue of, at least by virtue of the fact that you've got a service provider that wasn't in the structure beforehand and sending insufficient information to it.

[00:30:34] Speaker 03:
Thank you.

[00:30:35] Speaker 01:
Thank you very much, Your Honors.