[00:00:00] Speaker 00:
Next case for argument is 191662.

[00:00:41] Speaker 01:
Good afternoon your honors Michael Sachs-Detter on behalf of Supercell, may it please the court.

[00:00:49] Speaker 01:
The district court when it formulated the concept to which the claimed invention is directed left out the key part of the invention.

[00:00:59] Speaker 01:
It said that the

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abstract idea in the district court's words was sending, receiving, and authenticating logon information.

[00:01:08] Speaker 01:
That's a very good description of the prior art conventional method that is illustrated in figure one of the patent and described in the background.

[00:01:19] Speaker 01:
That was the problem that needed to be solved

[00:01:23] Speaker 01:
And the situation with that configuration was that whenever a new, in this case the example is a game, but any new application of value added service is added or is updated, then you had to make a change to the IM, the Instant Messaging Client as well, which was difficult for developers and difficult for users.

[00:01:49] Speaker 01:
So the claimed invention solves that problem by adding a plug-in, adding a function plug-in that is typically downloaded with the value added service.

[00:01:59] Speaker 01:
And that plug-in then is used to communicate with the IM client in a way that prevents the IM client from needing to be updated.

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So the only thing that you need to do if you have a new game,

[00:02:14] Speaker 01:
or if you have a new version of an existing game is to download the game and to download the plugin that comes with the game and then use that function plugin to do the login process rather than having to update the IAM client.

[00:02:31] Speaker 01:
And the patent itself explains the need for that.

[00:02:36] Speaker 01:
First, in column three about line 40, it says therefore the communication and interaction between the IAM client

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and any game client can be implemented.

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And the expansibility of the IAM client is then improved.

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Again, you can add more games to communicate with the IAM client.

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That's a good thing for the developer, a good thing for both the developer of the IAM client and of the game client.

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And it's also a good thing for the user.

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And that leads down farther in column three to improving the popularization of the value added service.

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want to have somebody use a new game, you don't want to add a step that makes it more difficult for them to download it and use it.

[00:03:21] Speaker 01:
And what the claimed invention does is prevent that.

[00:03:25] Speaker 01:
And so the district court just too broadly described what the

[00:03:31] Speaker 01:
purported abstract idea is.

[00:03:33] Speaker 01:
We don't think there is an abstract idea, but if you took what the district court said is the abstract idea, then the addition of the function plug-in and the way that it is used is something that under step two of ALIS is beyond being just a conventional use of the technology and adds an actual improvement to the way that the claimed invention is used.

[00:03:59] Speaker 01:
It's similar to DDR.

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It's an ordered arrangement of steps similar to BASCOM.

[00:04:07] Speaker 01:
It is a situation where you are improving the invention by adding something to it.

[00:04:14] Speaker 01:
Even though we don't agree with the formulation of the abstract idea, we do think that something has been added to improve it.

[00:04:21] Speaker 01:
And this was a motion to dismiss.

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And so under Berkheimer, this is a question of fact, whether what got added was conventional.

[00:04:31] Speaker 01:
There is discussion in the briefing of some prior art references that were cited on the face of the patent or cited in the prosecution.

[00:04:41] Speaker 01:
But all that says is that the concept of a plug-in existed in the prior art.

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And as this court's case law says, that doesn't necessarily mean that it was conventional in the prior art.

[00:04:54] Speaker 01:
And that's not something that should be decided under Berkheimer at the motion to dismiss stage.

[00:05:04] Speaker 01:
Any questions?

[00:05:06] Speaker 01:
All right.

[00:05:07] Speaker 01:
I reserve some time for rebuttal, and I think I actually have it.

[00:05:11] Speaker 01:
Thank you, Your Honor.

[00:05:20] Speaker 02:
Excuse me, please the court.

[00:05:23] Speaker 02:
My name is John O'Mahoney.

[00:05:24] Speaker 02:
I will also keep this brief.

[00:05:26] Speaker 02:
I just really want to make two points.

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The first point is that the argument in the briefs and the arguments today, I think, are untethered from the claims.

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So the aspects of the untethered.

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So there's a lot of talk about the specification without talking about the claim.

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I think that's where the problem lies in this case for Pellant, and that is that what they rely on as inventive is not recited in the claims.

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What is recited in the claims is purely conventional.

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And so the first thing that they talk about, second thing actually they talk about in the brief is gaming.

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that this is unique because it's applied to a game.

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But if you look at the claims, the claims don't recite a game.

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They only recite a value-added service.

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And so gaming is not in the claim.

[00:06:06] Speaker 02:
That argument is not tethered to the claims.

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The second argument is about this function plug-in and the way the function plug-in is placed within the claim.

[00:06:16] Speaker 02:
So between two peer entities is the argument that's used in the briefing.

[00:06:20] Speaker 03:
Why don't you take your adversary's argument on head on?

[00:06:24] Speaker 03:
He says, for example, that

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the district court aired, and you were in your analysis and having the analysis of the plugin in step two as opposed to step one.

[00:06:36] Speaker 03:
He said if you put the plugin into what the invention's all about, then it's not simply a matter of having this logon sending, receiving, and authenticating logon information.

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It's massaging logon information through the plugin.

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And he said, that's not an abstract idea.

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And you heard what he said.

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I did hear what he said, and I took it as him arguing that it was a step two case.

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I know that, but I think it would be quite candid.

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He would say he's got a harder argument to make if we look at the plug-in on step two, because it is in the prior art, than he does if he can get the plug-in into the concept of the invention for deciding what a non-substract.

[00:07:24] Speaker 02:
And that may be true.

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What I'm saying to you is, what's wrong with his argument?

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It's clear that he's not trying to claim the prior argument.

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In the claim, he's claiming a plug-in function in connection with logon information.

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And so two points to that.

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If we do move that into a step one analysis and we look at the function plug-in, there's nothing in the claim that suggests the plug-in is doing anything.

[00:07:47] Speaker 02:
It receives and then sends logon request.

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It sends and then receives logon information.

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There's no massaging of the data going on.

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And then if we look to the spec, the spec doesn't describe anything.

[00:07:58] Speaker 03:
You're saying that because you didn't specify the function of the plugin claim in the claim.

[00:08:04] Speaker 02:
Yes.

[00:08:05] Speaker 02:
And I believe your question to me was, or what you asked me to do, Your Honor, was to address his argument that the function plugin is somehow massaging the data.

[00:08:14] Speaker 02:
What I'm saying is that's untethered from the client.

[00:08:16] Speaker 03:
Well, I use the word massaging.

[00:08:17] Speaker 03:
He might disagree with that.

[00:08:20] Speaker 03:
That's what the point he was trying to make is that the difference between the prior art and his invention is that he's got a structure in the form of this plug-in thing that alters the way in which the sending, receiving, and authenticating of logon information occurs.

[00:08:40] Speaker 02:
And where I would disagree with that argument, number of places.

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But one place I would disagree with that argument, and I think it's probably clearest in the reply, they chided us for not addressing figures two and three.

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And then they cite a particular part of the specification.

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That particular part of the specification says that a function plug-in in practical applications, and I'm at the bottom of

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Appendix page 64, it's the bottom left corner, column 5.

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It says that the function plugin may be an independent entity.

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Or it may be within the IM client or the gaming client.

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And so there's not a separate entity.

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And so it's not described as necessarily being a separate entity.

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And the specification also only describes that it may be configured according to a function requirement or invoke a common interface according to requirements.

[00:09:33] Speaker 02:
That's all we have in the spec.

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So there's nothing to suggest.

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that there's anything non-abstract about a function plug-in.

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So if it's a step one case, that's still abstract.

[00:09:43] Speaker 02:
There's nothing there.

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And if we do make it a step one case where we add function plug-in there, I think his case is weaker because there's absolutely nothing left in the step two analysis.

[00:09:56] Speaker 02:
If we stay with the structure of the district court, our abstract idea is a little bit different.

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As Appellant mentioned, the district court judge held that the abstract idea was sending, receiving, authenticating.

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We left out authenticating because it's not recited in the claim.

[00:10:13] Speaker 02:
But if you look at that as the abstract idea and then look to step two, there's nothing unconventional about the claim.

[00:10:20] Speaker 02:
The idea of passing logon information back and forth between an IM client and a value added service client, like a game, is described as a conventional procedure in column one.

[00:10:32] Speaker 02:
And then in appendix 101, which I think Appel has alluded to, there's a statement that says, as a well-known function,

[00:10:41] Speaker 02:
of a platform can be extended by providing interface and plug-ins.

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So a function plug-in is well now, as admitted, this is, I'm sorry, I should have prefaced this, this is part of the prosecution history.

[00:10:52] Speaker 02:
So this is a statement by Pat and others.

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As is well known, function of a platform can be extended by providing interface and plug-ins, and if you turn to the top of the following page, appendix 0102, it says it's common.

[00:11:03] Speaker 02:
I think both of those are synonymous with routine, conventional, and well-understood.

[00:11:07] Speaker 02:
So if I think, as Appellate raised the question of a Birkheim and whether there's a factual dispute, there just simply isn't one here.

[00:11:14] Speaker 02:
Everything that is actually recited in the claims is conventional.

[00:11:18] Speaker 02:
It's either admitted to be conventional or well-known in common.

[00:11:22] Speaker 02:
There's no factual dispute there.

[00:11:23] Speaker 02:
The only question is the placement.

[00:11:26] Speaker 02:
Is the placement between the two entities?

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And based on the specification, specification says the placement can be anywhere.

[00:11:34] Speaker 02:
It can be in the middle.

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It can be part of the IM client.

[00:11:36] Speaker 02:
It can be part of the game client.

[00:11:37] Speaker 02:
And if you look at claim 14 of the patent, it says the same thing.

[00:11:42] Speaker 02:
And so there's nothing there that's unconventional.

[00:11:45] Speaker 02:
There's no inventive step.

[00:11:46] Speaker 02:
It's not captured in the claims.

[00:11:49] Speaker 02:
And so the patent's not eligible under section 101.

[00:11:54] Speaker 02:
So if there are no further questions, I will yield my time.

[00:11:56] Speaker 02:
Thank you.

[00:11:57] Speaker 02:
Thank you.

[00:12:01] Speaker 01:
Just a couple of points your honors.

[00:12:04] Speaker 01:
I think as

[00:12:06] Speaker 01:
The court has noted in the Ancora case, sometimes step one and step two get a little bit overlapping.

[00:12:12] Speaker 01:
And I think that our argument here has become something like that, and I think it happens from time to time.

[00:12:19] Speaker 01:
I do agree with your honor that our argument is that this is not an abstract idea, because the way that the district court described what the claim is directed toward

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And the way that Appellee has described what the claim is directed toward leaves out what the invention is actually about.

[00:12:43] Speaker 01:
And that is in the claims, I think all but two perhaps of the limitations of the claims are performed in some way either received by or done by.

[00:12:55] Speaker 01:
the function plugin.

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So it isn't just sending and receiving, it's a particular configuration in which the particular logon data is sent and received.

[00:13:07] Speaker 00:
Why isn't that just sending and receiving?

[00:13:09] Speaker 00:
I don't understand how you're saying it's a specific way to send and receive makes it any less sending and receiving.

[00:13:14] Speaker 01:
I'm not saying it's a particular way of sending and receiving.

[00:13:18] Speaker 01:
I think it's more what gets sent and received.

[00:13:21] Speaker 01:
There is in some of the dependent claims discussion of the way that the different modules communicate, whether they use a common interface or something else.

[00:13:33] Speaker 01:
But I'm not saying that what I'm saying is that the the configuration the way that that the system is set up something like where you have the filtering in Bascom is Is what makes this an invention the fact that you have as mr. Omani just said between two peers you have the

[00:13:55] Speaker 01:
And that's what made this patentable in the prosecution.

[00:13:59] Speaker 00:
You have the location... I'm sorry, why isn't this a claim directed to sending, receiving, and authenticating logon information?

[00:14:05] Speaker 00:
What is it about this claim that doesn't fall within that idea?

[00:14:09] Speaker 01:
It does those things, but it does those things using a particular system.

[00:14:14] Speaker 01:
that is configured in a particular way that solves the problem that's established.

[00:14:18] Speaker 00:
Maybe that moves it to step two, but I don't see how that makes it any less abstract under step one.

[00:14:24] Speaker 01:
Okay, well, I think that it does, but even under step two, the thing that the district court did with step two is that the district court described the invention differently for step two than for step one.

[00:14:40] Speaker 01:
So we had sending and receiving and authenticating

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in step one.

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But then in step two, the district court said the 449 patent does not describe how its particular arrangement of elements is a technical improvement over prior art ways of applying a function plug-in between two clients.

[00:14:57] Speaker 01:
But that was the new thing about the claims, was applying a function plug-in between the two clients.

[00:15:03] Speaker 01:
So what you need to look at as far as what the improvement is, is

[00:15:10] Speaker 01:
placing the function plug-in between the two peers and the improvements that that... So she's looking at it as saying that the plug-in is a bell and whistle that's hung on to the abstract idea.

[00:15:24] Speaker 01:
Its placement, as in Bascom, is what makes it an invention and what causes it to solve the problem that is established in the specification that's described in the specification.

[00:15:36] Speaker 03:
And so that's... The adversary says that the spec says it can be placed

[00:15:40] Speaker 03:
in between or can be placed either on one side or the other?

[00:15:44] Speaker 01:
Well, I think there are, in software cases, there are often sort of box drawing issues where you can say it's in one thing and you can say it's in another.

[00:15:53] Speaker 01:
But regardless of whether it's technically part of the software that's downloaded, it's still a separate module that does something.

[00:16:01] Speaker 01:
And the way it's described in the prosecution history is that it exists between the two peers to allow one of the peers not to be changed when the other one is.

[00:16:12] Speaker 00:
Thank you, Your Honor.