[00:00:00] Speaker 05:
So we'll hear argument now in 2011-95, NETSOC against Patch Group, 2014-30 NETSOC against Quora, and 2014-31 NETSOC against both.

[00:00:12] Speaker 05:
Now, Mr. Rainey.

[00:00:15] Speaker 02:
My apologies, Judge Toronto.

[00:00:16] Speaker 02:
I was eager to get started, but I'll start again.

[00:00:19] Speaker 02:
Good morning, Judge Toronto, Judge Chin, and Judge Stoll.

[00:00:23] Speaker 02:
My name is Bill Rainey, and I represent NETSOC LLC.

[00:00:25] Speaker 02:
If it pleases the court, may I begin?

[00:00:28] Speaker 02:
Yes, please.

[00:00:29] Speaker 02:
The claims of the 107 patent and the claims of the 591 patent are directed to the specific technological improvements of creating improved social networks with novel rating systems.

[00:00:40] Speaker 02:
The claims of both patents do not foreclose the creation of all social networks, but rather only those improved social networks with the particular claimed rating systems.

[00:00:50] Speaker 02:
In short, the claims of both patents claim a specific system for and method of establishing the social network with novel rating systems.

[00:00:59] Speaker 02:
Following this court's guidance in cases like Packet Intelligence versus NetScout and SRI International versus Cisco systems, the claims in the 107 patent and the claims in the 591 patent do not use a computer as merely a tool to create a social network.

[00:01:15] Speaker 02:
Rather, the claims of the patent are limited to the specific technological improvements or techniques of applying rating systems and establishing the social network on a computer system.

[00:01:27] Speaker 02:
Stated in another way,

[00:01:29] Speaker 02:
The claims specifically claim one, underlying computing technology or platform.

[00:01:34] Speaker 02:
Two, an improvement to that underlying technology, that being associating the participants with an updated rating.

[00:01:41] Speaker 02:
And three, a specific claim rating system, i.e.

[00:01:45] Speaker 02:
how that rating system is determined.

[00:01:47] Speaker 02:
For the 107 patent, the rating is determined at least in part based on track response time.

[00:01:54] Speaker 02:
For the 591 patent,

[00:01:56] Speaker 02:
The rating is based on user feedback of the published portion of the participant response.

[00:02:01] Speaker 02:
And that's important to remember that the user is doing the ranking in the 591 patent.

[00:02:07] Speaker 02:
So these novel rating systems give the claims what this court has referred to as the concreteness necessary to transform what otherwise might be considered abstract ideas into something concrete and therefore patent eligible.

[00:02:21] Speaker 02:
The claims of the 107 patent and the claims of the 591 patent had the specificity required to transform a claim from one claiming only result to one claiming a way of achieving it.

[00:02:32] Speaker 02:
The claims defined in a concrete manner and improved social network with novel rating systems.

[00:02:38] Speaker 02:
Here, in a broad sense, users and participants are matched based upon category selections.

[00:02:44] Speaker 02:
However, then the claim rules of the patents provide the specificity to make the inventions concrete.

[00:02:50] Speaker 02:
The reading systems operate to control the display of participant matches to the users.

[00:02:56] Speaker 02:
But the 107 patent and the 591 patent claims are patentable for another reason.

[00:03:02] Speaker 02:
The social network is something concrete, something real and not abstract in the slightest.

[00:03:08] Speaker 02:
A social network has a very particular meaning in the art field and is commonly understood as a website that brings people together to talk, share ideas, and interests them to make new friends.

[00:03:18] Speaker 02:
This type of collaboration sharing is known as social media.

[00:03:21] Speaker 02:
And unlike traditional media, it can have thousands or even millions of inputs into it.

[00:03:27] Speaker 02:
We provided in our briefing a non-exhaustive list of examples of social media websites and basically the social networking websites.

[00:03:39] Speaker 02:
It's important to note that in the briefing that we provided in our motion for a new trial in the 1195,

[00:03:46] Speaker 02:
district court appeal, and in our supplemental briefing in both the 1430 and 1437 appeals, the declaration of Dan Shapiro, he commented on the state of the art in 2003, that being the date of invention for these patents that he put forward.

[00:04:04] Speaker 02:
The social media was in its infancy at that time.

[00:04:07] Speaker 02:
In fact, there's the document that's put forward in the 1195 appeal appendix page

[00:04:14] Speaker 02:
0070 is a timeline of how social media and how social networking sites grew.

[00:04:22] Speaker 02:
And in 2003, there weren't hardly any around.

[00:04:26] Speaker 02:
And when we had 1996 was the launch of Friends, or 98, pardon me.

[00:04:32] Speaker 02:
And then in 2003 came LinkedIn, 2004, Facebook.

[00:04:36] Speaker 02:
So it's hard to say that in 2003, when this invention was created by the inventor, Miss Emily White, that there was

[00:04:44] Speaker 02:
that social media sites or social networking sites were commonplace or conventional.

[00:04:50] Speaker 02:
They just weren't.

[00:04:51] Speaker 02:
They were something new and something that are concrete and defined on their own or patentable subject matter.

[00:04:59] Speaker 02:
So I've talked a little bit to this panel about... Mr. Ramey, this is Judge Chen.

[00:05:06] Speaker 04:
I'd just like to ask a quick question here.

[00:05:09] Speaker 04:
Yes, Your Honor.

[00:05:09] Speaker 04:
It's a hypothetical.

[00:05:12] Speaker 04:
Imagine that I have a business

[00:05:15] Speaker 04:
And my business is trying to help customers find good real estate agents, good home renovation contractors, et cetera.

[00:05:29] Speaker 04:
And I have a little office, and customers come into my office and say, I need help trying to find a house in a particular neighborhood.

[00:05:40] Speaker 04:
And I also need to find painters and people that can do

[00:05:45] Speaker 04:
you know, refinish floors and stuff like that.

[00:05:48] Speaker 04:
And then I have a bunch of three ring binders in my office and I say, oh, okay, you want to live in Arlington, Virginia.

[00:05:58] Speaker 04:
Well, let me go to my binder and I know a lot of great real estate agents in Arlington, Virginia.

[00:06:06] Speaker 04:
And what I'm going to do is I'm going to contact some of those agents and give them your phone number and then,

[00:06:14] Speaker 04:
They will call you and contact you, and then you'll get to choose which one of those agents you want to work with to try to find a house in Arlenco.

[00:06:23] Speaker 05:
And Judge Chen, do you want to continue with your hypothetical?

[00:06:28] Speaker 04:
OK.

[00:06:29] Speaker 04:
Hello, Mr. Ramey.

[00:06:30] Speaker 04:
Can you hear me?

[00:06:31] Speaker 02:
Yes, Your Honor.

[00:06:33] Speaker 02:
Thank you.

[00:06:33] Speaker 04:
OK, yes.

[00:06:34] Speaker 04:
I was in the middle of a long-winded hypothetical, and I apologize for eating up your time.

[00:06:39] Speaker 04:
But very quickly, to start over, I'm talking about,

[00:06:44] Speaker 04:
hypothetical of where I have my own business with an office and customers come in and they're looking for relocation services and they're looking for people like real estate agents and home renovation contractors and they come to me and then I have a bunch of three ring binders that have preferred agents and contractors and then through looking through my binders I find the phone numbers of

[00:07:11] Speaker 04:
of what I think are really good agents and really good home contractors and I contact those people to give a phone call to my customer.

[00:07:23] Speaker 04:
And then based on how quickly they call the customer, I will assign a rating to those agents and contractors.

[00:07:36] Speaker 04:
Would you say that that's a patent eligible invention?

[00:07:40] Speaker 02:
Yes, Sharon, thank you for the question.

[00:07:43] Speaker 02:
If you remember earlier in my argument, that actually reads out some of the limitations from what we've done.

[00:07:52] Speaker 02:
So if you're trying to compare apples to apples, I think this example may compare apples to oranges.

[00:07:59] Speaker 02:
The paper and pencil method is not a social network.

[00:08:02] Speaker 02:
It's creating a social network of that one person.

[00:08:06] Speaker 04:
I'm sorry, but before you go any further,

[00:08:09] Speaker 04:
Just so I get an answer to my question, would you agree with me that what I just described is not a patent-eligible invention?

[00:08:18] Speaker 04:
I understand it doesn't have all the limitations of your claims, so maybe it's not apples to apples, but I'm just trying to figure out a baseline of whether you and I agree that what I described is not a patent-eligible invention.

[00:08:32] Speaker 02:
Yes, sir.

[00:08:32] Speaker 02:
So what you described was, I'm walking it through a little bit, so is that something

[00:08:39] Speaker 02:
I would say that that would be difficult to obtain patentability.

[00:08:42] Speaker 02:
It would depend on the limitations and the granularity that a clever patent attorney put on the claims with the hypothetical that you put forward, Judge Chen.

[00:08:54] Speaker 04:
Yeah, my hypothetical has nothing more and nothing less in terms of what is recited in the claim.

[00:09:00] Speaker 04:
Is that patent eligible?

[00:09:02] Speaker 02:
That would be a very difficult patent.

[00:09:04] Speaker 02:
I think it would not be patent eligible as you presented it, sir.

[00:09:07] Speaker 04:
Okay.

[00:09:07] Speaker 04:
Now I'd love to hear what's extra about your claim.

[00:09:12] Speaker 02:
Yes, your honor.

[00:09:13] Speaker 02:
So what you presented was a paper and pencil methodology for approaching a social network.

[00:09:19] Speaker 02:
That's not a social network.

[00:09:21] Speaker 02:
That's not what we defined as a social network.

[00:09:24] Speaker 02:
It's not what the art field defines or understands to be.

[00:09:28] Speaker 02:
a social network.

[00:09:29] Speaker 02:
What you have is a binder with pencils with an individual rating.

[00:09:33] Speaker 02:
So it's not the culmination of social network.

[00:09:36] Speaker 02:
And that's what I was trying to get at while we used the declaration of Dr. Shapiro in the various supplemental briefings.

[00:09:44] Speaker 02:
And that can be found, Your Honors, from the match appeal of 1195 at appendix pages 70 to 71.

[00:09:52] Speaker 02:
And in the oath, which is the 1437, that would be the appendix pages 303 to 304.

[00:09:59] Speaker 02:
in the Quora, the 430 appeal, appendix pages 400 to 401.

[00:10:03] Speaker 02:
But we tried to establish the state of the art in 2003 and define what a social network is.

[00:10:10] Speaker 02:
So the social network itself adds to the patentability of these claims because social networks didn't exist at the time.

[00:10:18] Speaker 02:
Social networks allow so much more than the paper and pencil binder where you supply your own rating.

[00:10:24] Speaker 02:
And that's what I was trying to get at.

[00:10:29] Speaker 02:
And maybe if I could look at something a little bit more on the argument, I think we're not trying to say, Your Honor, and I think, Judge, this might address exactly where you're going.

[00:10:42] Speaker 02:
We're not trying to say that we want to cover all Matthew users are looking for something who submitted a classification that matches the participant that's giving back to them.

[00:10:53] Speaker 02:
We're limiting what we're searching for to those exact ratings.

[00:10:58] Speaker 02:
rating systems.

[00:10:59] Speaker 02:
And if you go to the specification of the 107 patent, so from the 1195 appeal, all references pages, that appendix page 0024 at column 9, lines 58 through column 10, line 38, the patent specification discusses how the improved rating systems are used for tracking the performance of the particular issue resolvers.

[00:11:21] Speaker 02:
And I won't read through the four different ways, but it covers the ways from both the 591 patent and the 107 patent.

[00:11:28] Speaker 02:
and other patents.

[00:11:31] Speaker 02:
So that's what we're claiming.

[00:11:32] Speaker 02:
We're claiming a specific way of establishing a social network with these enhanced rating systems.

[00:11:38] Speaker 02:
We're not trying to claim all classifications or matches of user chosen classifications with participants.

[00:11:46] Speaker 02:
I would like to, I know I'm running out of time for my principle argument, so I'd like to get into two more quick issues if I can.

[00:11:55] Speaker 05:
This is Judge Toronto.

[00:11:57] Speaker 05:
Can I just ask you a question?

[00:11:58] Speaker 05:
Do you see any material difference between the two patents for eligibility purposes?

[00:12:06] Speaker 02:
Yes, sir.

[00:12:06] Speaker 02:
One, I don't see that the 591 patent has the term updating based on the

[00:12:16] Speaker 02:
of the issue resolver to get back with the user, right?

[00:12:20] Speaker 02:
So that's definitely missing from that one.

[00:12:22] Speaker 05:
Sorry, let me try to be more precise.

[00:12:25] Speaker 05:
I understand that there is a claim difference, a slightly different focus.

[00:12:30] Speaker 05:
I don't think in your argument this morning yet you have identified, you have made an argument that that difference should translate into a difference in the eligibility conclusion.

[00:12:43] Speaker 02:
Yes, starter.

[00:12:44] Speaker 02:
So I think the best way to do that is to go to our arguments concerning the district court's decision in the 1195 appeal from that, that we pointed out in our briefing that the district court summary or focus of the case completely read out the limitations displaying some of the information associated with each of the multiple participants is based on at least part of a range of individual participants.

[00:13:11] Speaker 02:
That wouldn't be present.

[00:13:13] Speaker 02:
in the 591 patent.

[00:13:14] Speaker 02:
So we think they're very different.

[00:13:16] Speaker 02:
We think that based on that, the courts out of the Southern District of New York couldn't say that the collateral estoppel should apply between the two patents simply, I mean, because it's missing that limitation which adds a lot of granularity to the claims.

[00:13:32] Speaker 02:
And so there's no mention of rating at all on the court's granularity.

[00:13:38] Speaker 02:
So I was trying to kind of kill two birds with one stone

[00:13:41] Speaker 02:
their judge Toronto addressing your question, how it applies to why we think collateral staples can't apply between the claims of the five nine one patent and the one of seven.

[00:13:52] Speaker 02:
And I hope I did it okay.

[00:13:55] Speaker 06:
Excuse me, counsel.

[00:13:56] Speaker 06:
Um, this is Judge Stoll.

[00:13:57] Speaker 06:
I just kind of want to follow up on that question and what you were talking about.

[00:14:01] Speaker 06:
Um, and what I'm wondering is whether

[00:14:04] Speaker 06:
If I thought that the 591 patent claims were ineligible under 101, do you have an argument for why the 107 patent claims are eligible or vice versa?

[00:14:17] Speaker 02:
Yes, sure.

[00:14:17] Speaker 02:
Thank you for letting me address that question.

[00:14:20] Speaker 02:
The 107 patent claims and the 591 patent claims are, patent will be distinct in the timing, timing how long it takes

[00:14:30] Speaker 02:
the identified issue resolver to get back to the user specifically in the claim language from the 107 patent tracking the response time of each one of the one or more participants who received the message from the user and then updating the rating is not found in the 591 patent.

[00:14:48] Speaker 06:
And we would say that if... Can I interrupt you for a minute?

[00:14:51] Speaker 06:
So you think maybe that's something that makes the claim eligible under step one or step two of ALIS and how so?

[00:15:00] Speaker 02:
Yes, Charter.

[00:15:00] Speaker 02:
So when you take, when you couple that information within, then going back up to what we call element five in our claim construction analysis out of the match case.

[00:15:11] Speaker 02:
And it looks like I'm in my rebuttal time now.

[00:15:13] Speaker 02:
If I can continue quickly, Judge Stoll, I can answer the question.

[00:15:17] Speaker 02:
Our element five out of the claim construction talks about displaying some of the information associated with each of those multiple participants based on that rating.

[00:15:27] Speaker 02:
And we think it's that particular element

[00:15:30] Speaker 02:
that makes the 107 patent distinctive and patent eligible subject matter.

[00:15:35] Speaker 02:
It's when you put all the elements together, that's the one that transforms it into something concrete.

[00:15:40] Speaker 02:
We're creating an enhanced social network.

[00:15:43] Speaker 02:
And if you go to the 591 patent, it's the comparable element that we think transforms it into patent eligible subject matter.

[00:15:52] Speaker 02:
It's tracking the feedback for each of the selected one or more participants based at least in part on the published portion of the response

[00:16:00] Speaker 02:
including determining a rating from the user.

[00:16:03] Speaker 02:
And so those elements independently in each patent that we assert make those patents patent-eligible subject matter.

[00:16:12] Speaker 02:
And that's why in our briefings we put forward that some cases need claim destruction to add granularity.

[00:16:19] Speaker 02:
Here, the claim destruction was completely done, Your Honors.

[00:16:22] Speaker 02:
We had it all briefed.

[00:16:24] Speaker 02:
We had a hearing date scheduled.

[00:16:25] Speaker 02:
And, but the claim, the District Court and the Northern District of Texas did not issue a parking construction of the terms and we didn't have the hearing.

[00:16:36] Speaker 02:
We think this case is the one that should go through a claim construction to fully define those terms.

[00:16:41] Speaker 02:
As Judge Bryson said, a lot of times you're going to learn a lot from that in the loyalty conversion versus American airline case.

[00:16:48] Speaker 02:
And likewise, as Judge Raina has said,

[00:16:51] Speaker 02:
that sometimes we need to go through that claim construction process to get at that granularity.

[00:16:59] Speaker 05:
Mr. Ramey, maybe it's time for us to hear from the other side so that you have some rebuttal time left.

[00:17:07] Speaker 02:
Thank you, Your Honor.

[00:17:08] Speaker 05:
Thank you.

[00:17:09] Speaker 05:
Mr. Griesen, do I remember right that you are speaking first?

[00:17:15] Speaker 03:
Yes, Your Honor.

[00:17:17] Speaker 03:
May it please the Court, this is Robert Griesen with North Coast Fulbright.

[00:17:21] Speaker 03:
USLLP here on behalf of Appellee's Match Group, Humor Rainbow, and OKCupid.

[00:17:27] Speaker 03:
And as Ms.

[00:17:28] Speaker 03:
Saunders mentioned earlier, the appellees decided that I would speak for 10 minutes, focusing on the 107 patent.

[00:17:36] Speaker 03:
Mr. Moore, on behalf of Quora, will speak for seven minutes, focusing on the 591 patent.

[00:17:42] Speaker 03:
And Mr. Carter, on behalf of Oak, will speak for three minutes, focusing on the collateral estoppel issue.

[00:17:50] Speaker 03:
So unless the court has any initial questions, I'll begin by addressing the hypothetical that was posed by the courts earlier.

[00:18:02] Speaker 03:
I think it's certainly informative because it tracks very well with a hypothetical that's provided in the 107 patent itself.

[00:18:12] Speaker 03:
And this is also discussed by Mr. Ramey earlier.

[00:18:15] Speaker 03:
The point being,

[00:18:18] Speaker 03:
that the novel rating system pointed to by Mr. Ernie as being in the claims is actually described as being something that is well understood and routine and traditionally performed by humans.

[00:18:37] Speaker 03:
And the specific example that's described at Colhamton is the notion that a corporation

[00:18:44] Speaker 03:
may rely upon its internal human resource department or other internal resources to relocate an employee and its family by identifying an appropriate moving company of the life for the family and then keeping track of the moving company's response time.

[00:19:07] Speaker 03:
At column 10 in lines 17 through 19, the specification clearly states that corporations typically have human resource departments or other internal relocation departments who facilitate the entire arduous process of relocation.

[00:19:26] Speaker 03:
And I think that's a very clear example that says that the entirety of what sets forth in the claims

[00:19:36] Speaker 03:
is something that was typically done by humans.

[00:19:41] Speaker 03:
The patent goes on to mention that the company can track responsiveness of a vendor that it hired so that the company will have knowledge of the vendor's responsiveness in the future.

[00:19:53] Speaker 03:
This, of course, does track the hypothetical posed earlier.

[00:19:58] Speaker 03:
And I would take it a step further that in the hypothetical that was posed,

[00:20:03] Speaker 03:
When the person making a recommendation for a realtor or the like, when someone wants to move to Arlington, Virginia, that person making the recommendation is going to do so or is going to recommend a realtor who they know is responsive or otherwise dependable.

[00:20:21] Speaker 03:
And people have been making those types of judgment calls since the beginning of humanity.

[00:20:29] Speaker 03:
Ms.

[00:20:29] Speaker 03:
Ramey acknowledged that, at least under the hypothetical,

[00:20:33] Speaker 03:
that it would be difficult to argue that a, that concept would be patent eligible.

[00:20:43] Speaker 03:
But that it's, the claims no longer require a paper and pencil method.

[00:20:51] Speaker 03:
And I take that to mean that Ms.

[00:20:52] Speaker 03:
Ring is arguing that because what was traditionally performed by humans,

[00:20:57] Speaker 03:
is now implemented on a computer, there's a reasonable argument that the claims are patent eligible.

[00:21:05] Speaker 03:
But this court has held in several instances that merely implementing an activity or a process that's traditionally performed by humans on a computer without more will not confer patent eligibility.

[00:21:25] Speaker 03:
And on that point, I think it's also

[00:21:27] Speaker 03:
important to understand that the 107 patent makes clear that this was intended to be executed, that is the processes contemplated by the 107 patent and the 591 patent for that matter, were intended to be executed by generic computer architecture.

[00:21:49] Speaker 03:
There's absolutely no mention in the specification of anything that's unique

[00:21:55] Speaker 03:
You know, there's generic references to processors, memories, and servers.

[00:22:00] Speaker 03:
And that is certainly consistent with, for example, claim six of the 107 patent that is generically directed to only a computer system.

[00:22:14] Speaker 03:
And I think that leads us to actually how the claims should be appropriately summarized or focused.

[00:22:22] Speaker 03:
So what the appropriate focus of the claims are.

[00:22:25] Speaker 03:
As the district courts recognized, the claims really set forth a process for presenting or displaying data, analyzing that data, and then displaying the results of the analysis.

[00:22:44] Speaker 03:
And again, this court has repeatedly held that those types of claims cannot confer patent eligibility.

[00:22:55] Speaker 03:
While Mr. Ramey argues that the claims are directed to an improved social network, I think that is an improper focus.

[00:23:02] Speaker 03:
We disagree on what the focus of the claims really is.

[00:23:06] Speaker 03:
For example, while claim one recite in its preamble that it establishes a social network, we all know that the preamble without more is not limiting.

[00:23:17] Speaker 03:
And if we all look at what the claims truly set forth, what they really cover

[00:23:22] Speaker 03:
It's no more than communicating generic information over a generic computer network.

[00:23:30] Speaker 03:
So I think the district courts got it right when they characterized the focus of the claims as something that's collecting information, analyzing it, and then displaying the results of the analysis.

[00:23:42] Speaker 03:
But setting that aside, even if Mr. Ring's argument were correct that the claims were directed to a social network,

[00:23:53] Speaker 03:
that would not change the nature of the analysis.

[00:23:55] Speaker 03:
In other words, the claims would still be ineligible.

[00:23:59] Speaker 05:
Mr. Griesen, this is Judge Toronto.

[00:24:01] Speaker 05:
Just remind me, I may be confusing a little bit between the cases, but maybe not.

[00:24:06] Speaker 05:
Was there a proposed claim construction of social network?

[00:24:12] Speaker 03:
Not of a social network.

[00:24:16] Speaker 03:
There were proposed terms for construction.

[00:24:18] Speaker 03:
I do not believe

[00:24:23] Speaker 03:
social network was at issue.

[00:24:30] Speaker 03:
But I can have that answer for you before this session is over for sure.

[00:24:37] Speaker 03:
But on the point of claim construction, I would point out that any claim construction here would not transform the nature of the claims.

[00:24:50] Speaker 03:
For example,

[00:24:51] Speaker 03:
While Netsoc argues that claims instruction would perhaps change the nature of the claims, it's not true.

[00:25:02] Speaker 03:
For example, the claim features that Netsoc relies upon incorporate the term rating.

[00:25:10] Speaker 03:
Well, even under Netsoc's construction, the term rating is a measure

[00:25:16] Speaker 03:
user feedback, in other words, a review or what one person says about another.

[00:25:25] Speaker 03:
And that by itself is abstract.

[00:25:27] Speaker 03:
So the terms that include rating, even under Netsop's proposed construction, would be abstract under any circumstance.

[00:25:40] Speaker 03:
And second, we pointed this out in our briefing, but it's worth mentioning here,

[00:25:45] Speaker 03:
that several of the terms that NETSOC raises as meeting construction for the termination of eligibility are terms that NETSOC also argued that no construction is necessary or that they're entitled to their plain and ordinary meeting.

[00:26:02] Speaker 03:
And now that I've got the chart in front of me, I believe that

[00:26:07] Speaker 03:
social network was not put before the parties.

[00:26:11] Speaker 05:
Can you point me to the place in the joint appendix where I can find plaintiff's claim construction submission?

[00:26:25] Speaker 03:
Yes.

[00:26:27] Speaker 03:
I can point you to first the appellate's reply brief at pages 6 through 10.

[00:26:36] Speaker 05:
So first of all, maybe I'm looking at the right thing.

[00:26:40] Speaker 05:
Is Appendix 283 Net Stocks Claim Construction brief?

[00:26:53] Speaker 05:
It seems to be.

[00:27:07] Speaker 03:
Yes, Your Honor.

[00:27:08] Speaker 05:
OK.

[00:27:09] Speaker 05:
And so in there is a proposed claim construction of social network?

[00:27:17] Speaker 03:
My recollection is that there is not.

[00:27:20] Speaker 05:
OK.

[00:27:21] Speaker 03:
And I believe that's consistent with the chart that's presented in MetSoc's reply brief.

[00:27:27] Speaker 05:
OK.

[00:27:28] Speaker 05:
Your time just ended.

[00:27:34] Speaker 05:
Why don't we hear now from Mr. Moore?

[00:27:37] Speaker 00:
Certainly.

[00:27:38] Speaker 05:
Thank you.

[00:27:39] Speaker 00:
Thank you.

[00:27:41] Speaker 00:
Thank you, Your Honors, and may it please the court.

[00:27:45] Speaker 00:
The district court in the Northern District of California is one of three district courts that had correctly concluded that the 591 or 107 patents are invalid under this court's 101 precedent.

[00:27:59] Speaker 00:
And the district court in the Northern District of California correctly concluded that on the merits of the 591 patent itself.

[00:28:09] Speaker 00:
First of all, dealing with step one of the ALICE test, the Northern District credited the plaintiff's assertion that the claims are directed to a social network.

[00:28:24] Speaker 00:
However, all the same, the court found that, correctly, to be an abstract

[00:28:29] Speaker 00:
concept.

[00:28:31] Speaker 00:
And so whether it is a social network or instead, as the district court found in match, collecting, analyzing, displaying data, either way, the claims are directed to an abstract concept.

[00:28:45] Speaker 05:
Can I ask you the same question about this case and this patent that I asked Mr. Griesen about the 107 and the Texas

[00:28:56] Speaker 05:
case is very proposed claim construction of social network proposed by NETSOC and if so, where would I find it in the Joint Appendix?

[00:29:08] Speaker 00:
Your Honor, there was no proposed claim construction in the California case for the 591 patent.

[00:29:15] Speaker 00:
In fact, the plaintiff never argued at the Rule 12 stage, which is where this case was decided,

[00:29:21] Speaker 00:
that there should be claim construction relevant to the 101 issues.

[00:29:26] Speaker 00:
And there were simply were no terms proposed for construction at all.

[00:29:30] Speaker 05:
OK.

[00:29:31] Speaker 05:
And I know that the New York case is not your case.

[00:29:35] Speaker 05:
Is that same thing true in the New York case?

[00:29:40] Speaker 00:
Your Honor, I would have to defer to Mr. Carter for that.

[00:29:43] Speaker 00:
We were transferred.

[00:29:44] Speaker 05:
You'll have three minutes.

[00:29:45] Speaker 05:
OK.

[00:29:46] Speaker 00:
Yes.

[00:29:47] Speaker 00:
I apologize.

[00:29:48] Speaker 00:
I know there was not a claim construction order, but whether they got into disclosing claim terms, I believe we were transferred to California by the time that would have happened, if it did happen at all.

[00:29:59] Speaker 00:
So in our case, and this highlights some of the, well, we certainly think, first of all, that the district court in Texas breached the right decision as to the 107 patent and that there is collateral stopple, which is our alternate grounds.

[00:30:14] Speaker 00:
But the District Court in California is also correct on its independent 101 analysis.

[00:30:19] Speaker 00:
And there's really a few reasons in addition to those set forth by the court in Texas why that's true.

[00:30:25] Speaker 00:
I already mentioned one of them, which is that not even the plaintiff argued that claim construction is relevant

[00:30:31] Speaker 00:
uh... for the one-on-one issues on the five nine one patent was never raised in the motion to dismiss briefing in fact they didn't even raise claim construction until their great brief in this appeal uh... there's no dispute before this court in the plaintiff's briefing as to representative claims between uh... of the five nine one patent and uh... in addition there's been some discussion in uh... the appellant's argument about the Shapiro declaration that was not part of the california case

[00:31:00] Speaker 00:
It was not part of the complaint that was submitted and that was the subject of the Rule 12 motion.

[00:31:06] Speaker 00:
The plaintiff did seek to amend the complaint, but the district court correctly denied that because all the amendment did was cite to specification sites of the 5-9-1 patent.

[00:31:17] Speaker 00:
It did not add any other patents.

[00:31:19] Speaker 00:
And lastly, to the extent it relied on the expert declaration, that declaration discusses the rating and feedback system in the 107 patent and not in the 591 patent at issue in California.

[00:31:31] Speaker 00:
And that's the last point of difference really is that there's a lot of discussion in the plaintiff's, in the appellant's argument about feedback and ratings and really there is

[00:31:43] Speaker 00:
much less detail in the claims of the 591 patent in terms of feedback and ratings.

[00:31:49] Speaker 00:
The ratings are not determined based on tracked response time.

[00:31:52] Speaker 00:
There is simply a disclosure and a claim of tracking feedback based at least in part on the published portion of the response and then determining a rating from the user for at least one of the selected one or more participants.

[00:32:07] Speaker 00:
So there was no discussion at all about how that feedback is tracked, what basis it's tracked on, nor how any rating from the user for any of these participants is determined.

[00:32:19] Speaker 00:
It's simply claiming any system that involves tracking feedback and determining ratings.

[00:32:25] Speaker 00:
Very broad and quite an abstract concept.

[00:32:28] Speaker 00:
No granularity to that claim at all.

[00:32:31] Speaker 00:
And so in summary, we believe that the District Court in California

[00:32:37] Speaker 00:
correctly reached an independent decision as to the 591 patents ineligibility, but that also because of the ineligibility decision of the Texas court in the collateral staple, that judgment would be properly affirmed on behalf of Quora from the California case as well.

[00:32:56] Speaker 00:
And unless your honors have any additional questions for me, I'm happy to cede the rest of my time to Mr. Carter.

[00:33:05] Speaker 05:
Hearing no questions, but Mr. Carter, you have three minutes.

[00:33:10] Speaker 05:
We're not going to do seeding of time, so you can start your three minutes.

[00:33:15] Speaker 01:
Well, thank you, Your Honors.

[00:33:17] Speaker 01:
May it please the Court, Ralph Carter, on behalf of Defendant Apley.

[00:33:23] Speaker 01:
Just at the outset, I would note that it's not clear whether Netsok has addressed the collateral estoppel point in his argument in chief, but if the Court

[00:33:35] Speaker 01:
would like for me to proceed.

[00:33:37] Speaker 05:
You can use your time any way you like.

[00:33:41] Speaker 01:
Well, thank you, Your Honor.

[00:33:44] Speaker 01:
The court has already had the benefit of the arguments from Match on the 107 patent and CORE on the related 591 patent.

[00:33:54] Speaker 01:
So this court can affirm Judge Abrams' decision in the oath case on either of the following bases.

[00:34:00] Speaker 01:
First, if the court agrees that the 591 patent is invalid,

[00:34:05] Speaker 01:
then this case would end.

[00:34:07] Speaker 01:
Second, if the court agrees with Judge Godby that the 107 patent is invalid, then NETSOC is collaterally stopped from bringing its claims.

[00:34:20] Speaker 01:
NETSOC does not dispute the only issue really before the court on this appeal is whether the two patents are substantially similar.

[00:34:29] Speaker 01:
In light of NETSOC's admissions that the two patents were, quote, extremely similar and also, quote, highly related, Judge Abrams reached the correct decision that both patents and substance claim inventions are the same method of connecting users to facilitate resolving life issues.

[00:34:48] Speaker 01:
Now, in our case, NETSOC initially alleged infringement of the 107 patent.

[00:34:53] Speaker 01:
Oath moved to dismiss that as invalid under 101.

[00:34:58] Speaker 01:
In the Oath case, Judge Abrams issued a stay of discovery holding that Oath and the other consolidated defendants raised substantial arguments in favor of dismissal.

[00:35:08] Speaker 01:
Then, when faced with the prospect that Judge Abrams would find the 107 patent invalid, Netsock shifted gears and swapped in the related 591 patent without filing a second amendment and filed a second amendment complaint without leaving court.

[00:35:23] Speaker 01:
Notably, Netsock made no other changes

[00:35:26] Speaker 01:
from its first amendment complaint, it just merely replaced 107 with 591.

[00:35:30] Speaker 01:
And in order to convince Judge Abrams to allow NETSOC to proceed with its claim under the 591, NETSOC represented that the two patents were, as we stated earlier, highly related and that there was extreme similarity in the independent claim one as between the 107 and 591 patents.

[00:35:50] Speaker 01:
NETSOC also claimed that claims construction proceedings would not be affected because the two patents were sensitive.

[00:35:58] Speaker 01:
So on that basis, Judge Abrams permitted NETSOC to proceed and heard briefing on the collateral stopple issue in the oath.

[00:36:07] Speaker 01:
Notably, NETSOC did not oppose collateral stopple in substance.

[00:36:13] Speaker 01:
It merely said that Judge Abrams' decision on collateral stopple should...

[00:36:20] Speaker 01:
If you'd like for me to finish my point there, I'm happy to do so, Your Honor.

[00:36:24] Speaker 05:
Yes, very briefly, please.

[00:36:27] Speaker 01:
Yes, NETFAC merely argued that the determination of collateral estoppel should wait until the match group motion for new trial was determined.

[00:36:37] Speaker 01:
And that was done on October 23, 2019, which mooted the only basis that they opposed collateral estoppel.

[00:36:45] Speaker 01:
Additionally, as we note in our papers,

[00:36:47] Speaker 01:
should be judicially stopped from losing these arguments.

[00:36:51] Speaker 01:
It laid them below, and also it received the benefit of being able to proceed with the second amendment complaint.

[00:36:56] Speaker 05:
I think you've now moved on to a different point from completing the one that you were completing.

[00:37:01] Speaker 05:
So I think we'll shift to Mr. Raimi's rebuttal with whatever time he has left.

[00:37:08] Speaker 01:
Thank you, Your Honor.

[00:37:12] Speaker 02:
And thank you, Your Honor.

[00:37:13] Speaker 02:
This is Bill Raimi, if I may continue.

[00:37:16] Speaker 02:
And just to address

[00:37:18] Speaker 02:
Briefly, the arguments from all the defendants, it's important to remember that all these cases were all consolidated in the Southern District of New York for a period of time when the motion to dismiss came out from the Northern District of Texas.

[00:37:34] Speaker 02:
And briefing for claim construction was made in the oral hearings, but it isn't part of the record before this court.

[00:37:41] Speaker 02:
And I just wanted to point out to say that, but the Martman hearing was made of the court

[00:37:46] Speaker 02:
in the Southern District of New York was made aware of it.

[00:37:49] Speaker 02:
It just, unfortunately, the way the case progressed wasn't started or wasn't begun in this court.

[00:37:56] Speaker 05:
I wanted to... And is it right that you never proposed a claim construction of the term social network?

[00:38:03] Speaker 02:
Social network was... No, yes, John.

[00:38:06] Speaker 02:
We never proposed a construction of the term social network because we felt that the entire claim was claiming that social network.

[00:38:14] Speaker 02:
Okay.

[00:38:14] Speaker 02:
And if I may, Your Honor, thank you for bringing that out.

[00:38:18] Speaker 02:
I wanted to address something that we talked about a little bit before, the paper three ring binder example that we gave.

[00:38:29] Speaker 02:
The 107 patent, at least, is patented.

[00:38:34] Speaker 02:
So going back to Judge Tins, I was specifically referring to the claims of the 107 patent and how those claims

[00:38:43] Speaker 02:
The claims of that ticker patent claim a radio system that's applied in an unconventional manner to a social network that allows the inquiry message to be sent from a user directly to the participants while she's in the contact information of the user from the participants.

[00:39:02] Speaker 02:
And that we would contend is also unconventional at least in 2003.

[00:39:08] Speaker 02:
And then I had left, and I'm not sure if y'all heard this, going into the other inventive aspects of the patents, and that's, and I think this is where I was disconnected, and I apologize.

[00:39:21] Speaker 02:
But I did want to briefly get back to ALICE step two, if it's necessary to get there about other inventive aspects.

[00:39:29] Speaker 02:
And I'll refer to the appendix at page 28 from the 1195 appeal at,

[00:39:38] Speaker 02:
page 108, column 7, lines 18 through 24, for a description of how the rating works for the 107 patent.

[00:39:47] Speaker 02:
And the specifications are common for all the patents, but it's just not the page, the line numbers are sometimes different.

[00:39:53] Speaker 02:
But the same information is there.

[00:39:55] Speaker 02:
And then I wanted to get into a specific example that's described in specification, that being appendix page 109, in column 10, lines 11 through 55,

[00:40:07] Speaker 05:
That being... And if I may finish... Just finish this... Yeah, finish this point without changing points unless you get a question, please.

[00:40:19] Speaker 02:
Yes, Ron.

[00:40:19] Speaker 02:
And that further assimilation of the community is addressed in that part.

[00:40:23] Speaker 02:
And then, lastly, those through the... Finishing that point, these are claims and the claims of the 107 patent at the pending states 28 at column 18, lines 5 through 38.

[00:40:36] Speaker 02:
where it talks about shielding the contact information, displaying some of the information.

[00:40:41] Speaker 02:
This is in our briefing, but I wanted to point out that these are the other inventive aspects that we think with the tracking and rating that's been disclosed as well at Appendix Page 24, Column 9, Line 58 through Column 10, Line 10.

[00:40:57] Speaker 02:
And with that, I will end my argument now.

[00:41:01] Speaker 02:
Thank you very much.

[00:41:01] Speaker 05:
Thank you, Mr. Raimi, and thank you, Mr. Griesenmore-Carter.

[00:41:06] Speaker 05:
that cases are submitted and we will conclude our argument session for the morning.

[00:41:14] Speaker 05:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.