[00:00:00] Speaker 03:
We now call our final case for argument 20-1171, Simeo versus Flexim software product.

[00:00:09] Speaker 03:
Mr. Obergik, whenever you're ready.

[00:00:13] Speaker 01:
Thank you, Your Honor, and may it please the court.

[00:00:17] Speaker 01:
Simeo respectfully submits that the district court erred below in dismissing Simeo's complaint and invalidating Simeo's twice-examined 468 patent

[00:00:28] Speaker 01:
based on holdings that the claims of the 468 patent are, one, not directed to a machine, that's in the four categories test under section 101, and that the claims are otherwise abstract under section 101.

[00:00:43] Speaker 01:
In this respect, we respectfully submit that the lower court erred by not allowing for a full claim construction on those issues and by not resolving factual disputes or inferences in favor of Cineo.

[00:00:57] Speaker 03:
Well, let me ask you, let me just interrupt you because time is short.

[00:01:01] Speaker 03:
There's a lot of ink spilled over this machine question, but it seems more appropriate for me to just focus on the alternative grounds of the district court judge, which is this is an abstract idea and contains no inventive concepts.

[00:01:20] Speaker 03:
So along those lines, looking at your claim,

[00:01:24] Speaker 03:
What specifically about applying graphical processes to object-oriented program improves the functioning of a computer as opposed to just these things more user-friendly, which is what the specification seems to talk about?

[00:01:42] Speaker 01:
So, Your Honor, with respect to your question, let me draw your attention to the portion of the claims that

[00:01:52] Speaker 01:
the patent office focused on in allowing or granting the patent under two examinations.

[00:01:58] Speaker 01:
That's the reference to an executable process to add a new behavior directly to an object instance.

[00:02:05] Speaker 01:
Let me give you an example of what has been there.

[00:02:07] Speaker 01:
To the extent that the invention here is being used to model a factory floor and the transit of goods through that floor, you may have an instance where an object, a digital object, is created by the invention

[00:02:22] Speaker 01:
to a graphical process that could be a conveyor.

[00:02:26] Speaker 01:
That conveyor could have particular behaviors that are initially created for that object, but a user may want to modify the behavior for one instance, one example, or use through the simulation model, and have that conveyor have a sorting process.

[00:02:48] Speaker 01:
Here, the claims describe

[00:02:51] Speaker 01:
the process whereby that behavior can be adjusted for that one instance and then without programming, without the need for computer programming by use of the digital object and the process, the executable process for that benefit.

[00:03:11] Speaker 01:
In terms of your question as to improvement, the patent itself, the specification talks

[00:03:20] Speaker 01:
at column four as to how the invention is designed to simplify model building, that it is a departure from a design of existing model tools?

[00:03:33] Speaker 03:
Yeah, but I don't have the site to the spec.

[00:03:36] Speaker 03:
But the spec also acknowledges that it's directed towards decades-old computer programming practice of substituting text-based coding with graphical processing.

[00:03:50] Speaker 03:
And it acknowledges, the spec acknowledges this has been widespread tool since the 1980s.

[00:03:57] Speaker 03:
And the other process has been around since the early 60s.

[00:04:06] Speaker 03:
So since these have been around for a decade, I guess my question remains, how does this final limitation that we've been talking about improve the functionality of a computer?

[00:04:21] Speaker 01:
So it improves the functionality of the computer as that computer is applied to the simulation modeling system.

[00:04:31] Speaker 01:
We have in the record a notation and an acknowledgement by council at oral argument below that there is novelty here.

[00:04:41] Speaker 01:
I know that that does not apply to, I acknowledge that doesn't apply to step one of ALIS, but the step two analysis does take into account novelty

[00:04:50] Speaker 03:
We have... Well, if it's novelty that doesn't necessarily consume and include the abstract idea, correct?

[00:05:00] Speaker 01:
Correct, Your Honor, correct.

[00:05:04] Speaker 01:
In terms of improvement, we have also Flexum touting its own alleged infringing product by use of the words revolutionary,

[00:05:17] Speaker 01:
and the use of process flow to avoid programming and to simplify the simulation process.

[00:05:25] Speaker 04:
Counsel, this is Judge Stoll.

[00:05:27] Speaker 04:
I want to get back to that last limitation of Claim 1, which I'm going to refer to as the add-on limitation.

[00:05:34] Speaker 04:
I think that's what it's referred to in the specification.

[00:05:37] Speaker 04:
Is that add-on limitation the idea of giving a new behavior to an object instance without changing the object definition?

[00:05:47] Speaker 04:
That is something, as I understand it, that would, in prior art object orientation methods, even maybe not for developing simulation models, but generally in prior art object orientation methods.

[00:06:05] Speaker 04:
Do you agree with that?

[00:06:09] Speaker 01:
I'm not sure I follow, Your Honor.

[00:06:13] Speaker 04:
One of the things we look at

[00:06:16] Speaker 04:
is whether particular, for example, the background of your invention admits that certain object-oriented programming techniques were known.

[00:06:29] Speaker 04:
For example, in column one, the bottom line 60 through 68, it talks about subclassing.

[00:06:36] Speaker 04:
In column two, lines one through five, it talks about

[00:06:42] Speaker 04:
developing has-a relationships, and that these things are conventional things that were available in object-oriented type programming.

[00:06:53] Speaker 04:
And my question to you is, is the add-on limitation described in the last element of Claim 1 one of these types of programming techniques that was known in object-oriented programming?

[00:07:08] Speaker 04:
Set aside, please,

[00:07:10] Speaker 04:
the simulation model application in which your claims are directed.

[00:07:16] Speaker 01:
Understood, Your Honor.

[00:07:17] Speaker 01:
So as your question anticipated, or at least your question asked, was it a known programming technique?

[00:07:24] Speaker 01:
I would say yes.

[00:07:25] Speaker 01:
The idea of altering a behavior of an object through programming was known.

[00:07:30] Speaker 01:
Here, in contrast, we have the use of the process.

[00:07:36] Speaker 01:
It's described either as the graphical process or the executable process.

[00:07:40] Speaker 01:
using a visual flowchart as a means whereby that behavior can be modified and whereby you do not, as a user, need to know and understand and implement software programming.

[00:07:56] Speaker 01:
So yes, Your Honor, the idea of using programming to alter a behavior was known.

[00:08:02] Speaker 01:
The idea of using a visual process, the flowchart process, to modify the behavior

[00:08:10] Speaker 01:
as part of that simulation system was not known.

[00:08:14] Speaker 01:
That is what is described as revolutionary by Flexum, and at column four, appendix 54 of the specification is referenced as simplifying the model, making it dramatically easier.

[00:08:29] Speaker 01:
And if we go further to the specification at column 15 at the top of 16, that add-on process is described as a much more

[00:08:40] Speaker 01:
powerful concept because it allows, and this is more specific to simulation, it allows the add-on process to model process delays that span simulated time.

[00:08:53] Speaker 04:
So here you have a very, I'm sorry.

[00:08:56] Speaker 04:
Excuse me for a minute, sorry.

[00:08:58] Speaker 04:
In column 15, there is some discussion of, I guess, the add-on logic where it says,

[00:09:07] Speaker 04:
In many cases, it would be more desirable to add the logic to a specific instance of the object without having to create a new object definition.

[00:09:16] Speaker 04:
But I don't see anything else that talks about why this is particularly desirable for advent cases in a simulation environment.

[00:09:27] Speaker 04:
Am I missing something?

[00:09:29] Speaker 01:
Well, if I jump to the bottom of that, in the simulation environment, I was reading the very

[00:09:36] Speaker 01:
last paragraph that ends on 15 and runs to the top of 16, where it is specific to a simulation environment.

[00:09:44] Speaker 01:
It talks about the add-on process being a much more powerful concept, because in that simulation context, it can model delays that span simulated time and not just at one specific instant in time.

[00:10:01] Speaker 03:
Can I move you on to just before your time runs out to a question about this amendment that you sought?

[00:10:07] Speaker 03:
As I can understand it, there weren't any facts in your proposed amended complaint that couldn't have been alleged before the deadline to amend.

[00:10:16] Speaker 03:
Is that correct?

[00:10:18] Speaker 01:
I agree, Your Honor, yes.

[00:10:20] Speaker 03:
So where was the good cause for not amending before the deadline?

[00:10:26] Speaker 01:
Your Honor, we submit respectfully that

[00:10:32] Speaker 01:
The interplay between a pending motion to dismiss in our case as well as the scheduling order created overlaying deadlines.

[00:10:44] Speaker 01:
We did have a motion, but while we also had the motion to dismiss pending, the motion to dismiss provided instruction to us as to the view of the district court judge as to what the claims did and did not say.

[00:10:58] Speaker 01:
We did not have the benefit of the district

[00:11:01] Speaker 01:
judges' view at the time the deadline was approaching.

[00:11:07] Speaker 01:
These same issues were brought before the district judge when we filed our motion for leave.

[00:11:12] Speaker 01:
The judge below did not deny that motion on the grounds that it was untimely or that anything had been waived.

[00:11:20] Speaker 01:
The sole basis for denial was futility.

[00:11:23] Speaker 01:
That is, the district court did look at the allegations in the complaint.

[00:11:28] Speaker 03:
Right.

[00:11:28] Speaker 03:
No, I understand that the basis upon which he rolled, I was just asking you about the alternative argument.

[00:11:35] Speaker 03:
But I think I heard the bell ring.

[00:11:38] Speaker 03:
Am I right, Michael?

[00:11:40] Speaker 02:
No, there's another 30 seconds remaining, Your Honor, before rebuttal.

[00:11:43] Speaker 02:
Sorry.

[00:11:44] Speaker 02:
Sorry.

[00:11:46] Speaker 01:
Please proceed.

[00:11:46] Speaker 01:
I'm sorry.

[00:11:48] Speaker 01:
It's all right, Your Honor.

[00:11:50] Speaker 01:
So, I mean, I'll just restate.

[00:11:54] Speaker 01:
In the context of this case, the procedural context, we submit that we still have the ability to request leave after having the benefit of the district court's view of the motion to dismiss and the arguments advanced before.

[00:12:09] Speaker 01:
And I will, at this point, pause and allow my friends to respond.

[00:12:15] Speaker 03:
Thank you very much.

[00:12:19] Speaker 03:
Is it Mr. Miller with us this morning?

[00:12:22] Speaker 00:
Yes, Your Honor.

[00:12:23] Speaker 00:
Thank you.

[00:12:23] Speaker 00:
Good morning.

[00:12:25] Speaker 00:
Good morning.

[00:12:27] Speaker 00:
May it please the court?

[00:12:28] Speaker 00:
I want to begin with a brief focus on part of the four categories argument, and that is the Section 101 does not permit claiming software as a product unless it is in a tangible form.

[00:12:43] Speaker 00:
And I think the primary argument to focus on here is on page 19 of the red brief, we argued

[00:12:50] Speaker 00:
that these claims are broad enough to cover any copy of the software, including an intangible embodiment of the software that's being transmitted by a digital signal.

[00:13:00] Speaker 00:
And that happens when you download the software from either Simeo or Flexim.

[00:13:05] Speaker 00:
You go to their website.

[00:13:06] Speaker 00:
You download the software.

[00:13:07] Speaker 00:
The software travels from their server to your computer.

[00:13:11] Speaker 00:
And the only thing either one of these companies is selling is that software in that signal coming to your computer.

[00:13:18] Speaker 00:
They don't sell computers.

[00:13:20] Speaker 00:
with the software on them, simulating the grapefruit.

[00:13:24] Speaker 04:
Excuse me.

[00:13:24] Speaker 04:
This is Judge Stoll.

[00:13:25] Speaker 04:
What about the preamble?

[00:13:27] Speaker 04:
Do I have to agree with you that the preamble doesn't have weight in order to agree with this argument you're making now?

[00:13:34] Speaker 00:
I don't think you have to say it doesn't have weight.

[00:13:36] Speaker 00:
I don't think it's a limitation, and I think that's based on both preamble and pre-slot.

[00:13:44] Speaker 04:
Excuse me, I don't understand what you mean by it has weight, but it's not a limitation.

[00:13:51] Speaker 04:
I think those things are synonymous, so I'm confused.

[00:13:54] Speaker 00:
Okay, well, my argument is this.

[00:13:57] Speaker 00:
The preamble doesn't refer to a computer in a way that would indicate that it's a component of the system.

[00:14:02] Speaker 00:
For example, let's go through the three portions of the preamble.

[00:14:07] Speaker 00:
It starts with a computer-based system.

[00:14:10] Speaker 00:
That is not the same thing as a computer system.

[00:14:13] Speaker 00:
The word based has weight.

[00:14:15] Speaker 00:
It means something.

[00:14:16] Speaker 00:
And software, a pure software product, is drafted and created based on how computers function.

[00:14:24] Speaker 00:
The software itself is a typical computing device later on.

[00:14:28] Speaker 00:
OK.

[00:14:30] Speaker 00:
So the next portion of the preamble is that phrase, but it starts with the word for.

[00:14:35] Speaker 00:
for developing simulation models on a physical computer device.

[00:14:38] Speaker 00:
That is a clear, unambiguous statement of the intended use of this system.

[00:14:44] Speaker 00:
It is not a statement of what the system is comprised of.

[00:14:47] Speaker 00:
That's why it says four.

[00:14:49] Speaker 04:
It's your view that the language developing simulation model is the only thing that modifies physical computing device, not the computer-based system.

[00:15:00] Speaker 04:
It could be a computer-based system.

[00:15:02] Speaker 04:
for developing simulation models, all of it being on a physical computing device.

[00:15:06] Speaker 04:
But I understand you're reading it, the language developing simulation models is the only thing that's on the physical computing device.

[00:15:15] Speaker 04:
Do I understand that correctly?

[00:15:17] Speaker 00:
Yes.

[00:15:17] Speaker 00:
Yes, you understand that correctly.

[00:15:20] Speaker 04:
What about the last element where it talks about an executable process?

[00:15:25] Speaker 04:
Why doesn't the language and executable process

[00:15:29] Speaker 04:
in and of itself.

[00:15:30] Speaker 04:
I mean, you can't have something that's executable unless it's on a computer, right?

[00:15:35] Speaker 00:
Well, I disagree.

[00:15:36] Speaker 00:
Software is drafted.

[00:15:37] Speaker 00:
I can draft source code, and the source code I drafted is executable by a computer.

[00:15:43] Speaker 00:
Before you put it on the computer, it's executable.

[00:15:46] Speaker 00:
When you put it on the computer and click it, now you're executing it.

[00:15:50] Speaker 00:
It has always been executable.

[00:15:52] Speaker 00:
It's capable of being executed by a computer.

[00:15:55] Speaker 00:
It doesn't mean it is being executed by a computer.

[00:15:58] Speaker 00:
And that's the difference.

[00:15:59] Speaker 00:
the transition phrase from the preamble ends with the system comprising, and then it relates to just software non-tangible components.

[00:16:10] Speaker 00:
And here's an important part, Your Honor, I want to focus the Court's attention on.

[00:16:15] Speaker 00:
In the grade brief, in response to our argument that these claims are broad enough to cover...

[00:16:23] Speaker 03:
Oh, I'm sorry.

[00:16:25] Speaker 03:
Keep your voice down a little.

[00:16:26] Speaker 03:
I know that you're very involved in this case.

[00:16:29] Speaker 00:
Yes, I get a little worked up.

[00:16:32] Speaker 00:
In the gray brief on page three, Simeo disputes our argument that the claims are broad enough to encompass the software inside the transmission signal, and they argue, quote, that argument does not align with the allegations in the complaint.

[00:16:50] Speaker 00:
Well, let's look at their complaint, their original complaint.

[00:16:54] Speaker 00:
The allegations in paragraphs 11, 26, and 27 identify FlexSim 2016, the simulation software, FlexSim 2016 as the accused product in paragraph 11, which is appendix 28.

[00:17:09] Speaker 00:
In paragraphs 26 and 27 on appendix pages 31 and 32, they say that defendants' sale

[00:17:19] Speaker 00:
of Flexim 2016 constitutes a direct infringement of the claim.

[00:17:25] Speaker 00:
They say that Flexim 2016, the software product itself, includes all of the elements of claim one.

[00:17:32] Speaker 00:
They say that Flexim 2016 is a computer-based system.

[00:17:38] Speaker 03:
Can I move you back to where I was before?

[00:17:42] Speaker 03:
I'm sorry, did you have more follow-up to that?

[00:17:45] Speaker 04:
No, no, sorry.

[00:17:46] Speaker 04:
I was going to do the exact same thing.

[00:17:48] Speaker 04:
Please go ahead, Judge, first.

[00:17:49] Speaker 04:
Okay.

[00:17:50] Speaker 03:
Some of us just see a lot of this ALICE step one, step two analysis, and we're becoming much more familiar and at ease with that than anything else.

[00:18:00] Speaker 03:
So let me give you just step two of ALICE and the same limitation you were discussing with Judge Sowell, the executable process.

[00:18:09] Speaker 03:
It's a bit different from the abstract idea of just using graphical processes with object-oriented programming, isn't it?

[00:18:19] Speaker 00:
I disagree.

[00:18:21] Speaker 00:
Oh, go ahead.

[00:18:23] Speaker 03:
And if so, the question still remains whether it improves the computer's functionality.

[00:18:30] Speaker 03:
So could you kind of address that two-part thing?

[00:18:34] Speaker 00:
Yes.

[00:18:34] Speaker 00:
The executable process, I just heard my friend explain.

[00:18:38] Speaker 00:
that that executable process is the same thing.

[00:18:41] Speaker 00:
It is a graphical process to achieve the result that they identify in the claim.

[00:18:48] Speaker 00:
And so it is just another statement of applying a graphical process with no explanation of the steps of that process or the implementation.

[00:18:59] Speaker 03:
It's in slightly more specific form than the abstract idea under step one, right?

[00:19:06] Speaker 03:
A little more specific.

[00:19:07] Speaker 00:
The problem with it is it's not specific in the way you achieve the result.

[00:19:13] Speaker 00:
It describes a specific result, Your Honor, but this court's jurisprudence over and over again in Alice Step 2 says that if you're going to focus on a limitation in Step 2 to try and be the inventive issue, the inventive idea, you can't just point to a result-oriented description.

[00:19:33] Speaker 00:
This court's decision in the intellectual ventures case

[00:19:37] Speaker 00:
versus Capital One in 2017 addressed a software claim where the benefit was the user didn't have to have programming skills.

[00:19:48] Speaker 00:
It made it more user friendly.

[00:19:50] Speaker 00:
The court found it abstract and the court found it ineligible under Section 101.

[00:19:55] Speaker 00:
And in that case,

[00:19:57] Speaker 00:
They cited to this dynamic document limitation, and the court said nothing in the claims indicate what steps are undertaken to overcome the incompatibility problem.

[00:20:08] Speaker 00:
The claim language proves only a result-oriented solution with insufficient detail.

[00:20:14] Speaker 00:
And that's exactly the way the executable process is written.

[00:20:17] Speaker 00:
It says it's an executable process.

[00:20:20] Speaker 00:
to add new behavior to an object instance without changing the definition.

[00:20:25] Speaker 00:
So it's a process that achieves the result.

[00:20:28] Speaker 04:
Council, this is Judge Schultz.

[00:20:31] Speaker 04:
What kind of how-to limitation are you talking about?

[00:20:34] Speaker 04:
This looks pretty specific to me.

[00:20:36] Speaker 04:
I mean, it might not be an extensive concept because it's a foundational element of object-oriented programming.

[00:20:44] Speaker 04:
But I mean, I want to know what you think.

[00:20:48] Speaker 04:
Can you give me an example of

[00:20:50] Speaker 04:
What sort of claim language you're thinking about that would make it so it was more clear how to perform this step?

[00:20:57] Speaker 00:
Well, Your Honor, so I agree with you.

[00:20:59] Speaker 00:
The reason it's not inventive is multifaceted.

[00:21:03] Speaker 00:
This is not the foundation of the invention.

[00:21:06] Speaker 00:
It's identified as just a possible more desirable thing that you could otherwise do.

[00:21:12] Speaker 00:
But if you say we are going to apply a process that achieves the result,

[00:21:17] Speaker 00:
of adding a new behavior without changing the definition, then it's not telling you how to do that.

[00:21:23] Speaker 00:
For example, it's not telling you to substitute certain logic in this object instance in a way that won't relate back to the definition.

[00:21:34] Speaker 00:
It's not telling you how to add it or where to add it.

[00:21:40] Speaker 04:
Do you think a person of ordinary filming art would know how to do it?

[00:21:44] Speaker 04:
It seems like it's a pretty basic object-oriented program.

[00:21:50] Speaker 04:
So I'm just wondering, or maybe it's not in your view, and it has to be spelled out more.

[00:21:56] Speaker 04:
So I'm wondering.

[00:21:59] Speaker 00:
Go ahead.

[00:22:00] Speaker 00:
I think that's a two-edged sword in both ways cut against simile, because if it is something that an ordinary person's skill in the art would just know, then it's just another

[00:22:14] Speaker 00:
conventional process that they would know, and it's not adding an inventive element.

[00:22:19] Speaker 00:
And if it's not something they would know, then the claim limitation is not specific enough by way of telling you how to implement this process to achieve the result, and it's purely result-oriented.

[00:22:31] Speaker 00:
Either way, either way, it doesn't cross ALICE 2 threshold.

[00:22:40] Speaker 02:
This is Judge Cleminger.

[00:22:42] Speaker 02:
Your adversary referred in his opening argument to the fact, which is true, that you have admitted novelty with regard to this invention.

[00:22:51] Speaker 02:
So tell me, what is the specific novel feature that you've admitted?

[00:22:59] Speaker 00:
Well, I would clarify that statement.

[00:23:02] Speaker 00:
We have acknowledged that the executable process limitation was the limitation the patent office cited as the basis for granting the claims, because that's the one thing they didn't see directly in the prior art.

[00:23:17] Speaker 00:
And our arguments in the motion to dismiss were, it doesn't matter if that's considered novel or not, the novelty

[00:23:25] Speaker 02:
is not... Are you now saying you don't admit liability, novelty?

[00:23:32] Speaker 00:
Well, not in a sense of throughout the case, we're going to just admit that that's novel.

[00:23:37] Speaker 00:
We're saying for the purposes of our motion, we won't dispute the novelty of it.

[00:23:42] Speaker 00:
We'll acknowledge, we can accept that it's novel for purposes of a Section 101 analysis because

[00:23:48] Speaker 00:
Even if it's novel, this court's jurisprudence is very clear.

[00:23:51] Speaker 00:
Novelty does not equate to an inventive concept.

[00:23:54] Speaker 00:
You have to show something that goes beyond the abstract idea.

[00:23:58] Speaker 00:
And my colleague just acknowledged that this is another application of a graphical process to achieve a result that you could otherwise achieve in object-oriented programming.

[00:24:09] Speaker 00:
So it's just another element that does just what the patent says.

[00:24:13] Speaker 00:
The basic concept is,

[00:24:15] Speaker 00:
Object-oriented programming has existed forever in simulation software.

[00:24:21] Speaker 00:
And all they did is apply graphical processing so a user doesn't have to know coding language.

[00:24:28] Speaker 00:
That's the same concept that this executable process limitation applies.

[00:24:32] Speaker 00:
The end result that it claims is an end result you could get without applying a graphical process.

[00:24:39] Speaker 00:
So in other words, it's not adding anything inventive beyond the abstract idea itself.

[00:24:45] Speaker 00:
And this abstract idea is just taking a decades old process that makes computing easier for users to a broader base of users.

[00:24:55] Speaker 00:
and says, hey, nobody's done this with object-oriented simulation yet.

[00:24:59] Speaker 00:
Let's do it.

[00:25:00] Speaker 00:
And the patent never says there was a real hurdle to overcome by combining these two.

[00:25:06] Speaker 00:
Or there was technological difficulties.

[00:25:09] Speaker 00:
They just said, we're going to apply graphical processing in the object orientation the same way that it had been applied in the process orientation decades earlier to make object-oriented simulation more user-friendly.

[00:25:23] Speaker 00:
It is a pure abstract concept that is carried on even into that executable process limitation.

[00:25:33] Speaker 00:
The other thing I want to point out is at the hearing, the motion to dismiss hearing, appendix page 1806, Simeon's counsel conceded that, quote, flow charts were a conventional tool.

[00:25:45] Speaker 00:
So the inventive concept that they focus on, and he even focused on today for this executable process,

[00:25:52] Speaker 00:
The thing that he said makes it better is that he used flowchart instead of programming.

[00:25:58] Speaker 00:
But they admitted in the motion to dismiss hearing that the use of flowcharts is a conventional tool.

[00:26:04] Speaker 00:
There's not a factual dispute here.

[00:26:07] Speaker 00:
What they're claiming as the inventive concept is admittedly nothing more than the application of a conventional tool in a new field and nothing about the implementation of that tool changed the technology or the function of computers.

[00:26:23] Speaker 00:
There's nothing in the patent that says a computer's processor works faster, a computer's memory is more efficient, a computer operates differently than it otherwise would have.

[00:26:35] Speaker 00:
This is a pure

[00:26:36] Speaker 00:
User benefit and this court's decisions in custom media text versus DISH Network this year says improving the user's experience is not sufficient to render an improvement in computer functionality.

[00:26:53] Speaker 00:
Intellectual event search versus Capital One says the same thing.

[00:26:56] Speaker 00:
If all you did with a user to manipulate the data without programming skills, that's insufficient.

[00:27:03] Speaker 00:
And that's exactly what these claims are.

[00:27:05] Speaker 00:
We believe the claims are pure software claims and don't fall into four categories of Section 101.

[00:27:13] Speaker 00:
And we also think that the claims are abstract under ALICE and for that reason are ineligible.

[00:27:19] Speaker 00:
And I see my time is up.

[00:27:22] Speaker 00:
If the court has any more questions, I'm happy to address them.

[00:27:25] Speaker 03:
Thank you.

[00:27:27] Speaker 03:
You have some time remaining, Mr. Oberdick.

[00:27:31] Speaker 01:
Thank you, Your Honor.

[00:27:31] Speaker 01:
Just a few points.

[00:27:33] Speaker 01:
Returning to the add-on process initially, and to just clarify, it is correct that, as described earlier in claim one of the 468 patent, there's a use of a flowchart to create an object.

[00:27:46] Speaker 01:
That's the graphical process.

[00:27:47] Speaker 01:
The add-on process allows for modification of the behavior of that object without having to go back to square one.

[00:27:55] Speaker 01:
You don't have to use the graphical process, that initial flowchart, again.

[00:28:01] Speaker 01:
That executable process is not a foundational element of object-oriented processing.

[00:28:09] Speaker 01:
Others are able to practice that general concept without infringing on that add-on process.

[00:28:15] Speaker 01:
That is the unique aspect that was found by the patent office twice here, and that is the focus of what we're saying is part of the revolutionary aspect of the invention.

[00:28:27] Speaker 01:
And I know a lot of these arguments turn by way of analogies.

[00:28:30] Speaker 01:
I would direct the court's attention respectfully to ENFISH as providing a more apt analogy, a more apt way of looking at this invention.

[00:28:42] Speaker 01:
In ENFISH, the claims focused on a data storage and retrieval system.

[00:28:49] Speaker 01:
Those system components were a means for configuring according to a logical table.

[00:28:55] Speaker 01:
a plurality of logical rows, a plurality of logical columns, and a means for indexing.

[00:29:02] Speaker 01:
I would submit no less abstract than what we are talking about in the 4-6-8 patent when we talk about objects, executable add-on processes, and the like.

[00:29:14] Speaker 01:
In ENFISH, the specific focus was the enablement of programmers to construct databases in new ways

[00:29:23] Speaker 01:
that required less modeling and configuring of tables prior to launch.

[00:29:29] Speaker 01:
That was the improvement.

[00:29:32] Speaker 01:
I would submit that is directly analogous to what is being involved with the present patent.

[00:29:38] Speaker 01:
We have new ways to modify a behavior of an object.

[00:29:45] Speaker 01:
I acknowledge that it is a user benefit, but it is also an improvement to the simulation modeling technology

[00:29:53] Speaker 01:
that had been around for many, many decades.

[00:29:56] Speaker 01:
The add-on process is new.

[00:29:58] Speaker 01:
It is revolutionary.

[00:30:01] Speaker 01:
It does simplify, expedite that technology in a way that was not present before.

[00:30:09] Speaker 01:
And with that, I'll ask if there's any other questions.

[00:30:14] Speaker 03:
Thank you.

[00:30:16] Speaker 03:
We thank both sides.

[00:30:17] Speaker 03:
And the case is submitted.

[00:30:18] Speaker 03:
That concludes our proceedings for this morning.

[00:30:22] Speaker 02:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.