[00:00:00] Speaker 03:
I now call Case 19-192, Kecksec v. Adobe.

[00:00:06] Speaker 03:
Mr. Oakes, whenever you're ready.

[00:00:09] Speaker 05:
Good morning and may it please the court.

[00:00:12] Speaker 05:
This court's precedent is clear that whether an accused infringer had the requisite knowledge to support a claim of induced infringement is a factual issue focused solely on the subjective beliefs of the defendant.

[00:00:24] Speaker 05:
The district court committed plain legal error in focusing instead on objective factors and determining as a matter of law that Adobe could not have believed that it infringed as a result of an erroneous and later reversed claim construction decision.

[00:00:40] Speaker 05:
The district court's reasoning was flatly rejected by this court in Smith and Nephew versus Arthrox, which held that even a court ruling of no infringement could at most create a factual question, not an entitlement to a non-knowledge finding as a matter of law.

[00:00:56] Speaker 03:
Well, let me just ask you, assuming we were hypothetically to agree to everything you've just said, where is the factual dispute?

[00:01:06] Speaker 03:
Did you establish, I know the district court in its earlier summary judgment

[00:01:10] Speaker 03:
uh, decision said there are factual disputes with regard to inducement, but that seemed to be on other matters.

[00:01:17] Speaker 03:
So then the record before the district court, was there indeed a factual dispute with regard to intent on the, during this time period, what we're talking about in terms of the motion eliminate?

[00:01:30] Speaker 05:
Well, we're actually precluded from putting in that evidence based on the district court's ruling, but there was evidence in the record.

[00:01:36] Speaker 05:
It was cited in the summary judgment briefing.

[00:01:38] Speaker 05:
And some of the evidence came in at trial because of the earlier period, but there was evidence that Adobe had knowledge of the patents, that it stipulated to infringement, so it was aware that its actions and the blog post that it posted would lead to infringement.

[00:01:54] Speaker 05:
It never changed its activities during the entire course of the litigation.

[00:01:58] Speaker 05:
There was evidence at trial that none of the senior executives were put on notice of the patents, although Adobe had notice of the patents.

[00:02:05] Speaker 05:
certainly sufficient evidence on which a jury could have concluded if we were to have been permitted to put on the entirety of the evidence that there was induced infringement during that entire period.

[00:02:16] Speaker 03:
Even as the district court pointed out, even if during the period in which the claim construction had gone in their favor, at least temporarily?

[00:02:26] Speaker 05:
There was nothing that Adobe put into the records that showed that that claim construction decision had any impact on Adobe, on its belief as to non-infringement.

[00:02:34] Speaker 05:
or its actions with respect to continuing that infringement during the entire period.

[00:02:39] Speaker 05:
So there's nothing on Adobe's side to rebut any of TEC-6 showing that there was knowledge and intent during that period.

[00:02:48] Speaker 01:
The district court.

[00:02:49] Speaker 01:
Can I just ask you this question?

[00:02:51] Speaker 01:
If, again, if assuming that we were to agree with you that the ruling on the motion to eliminate was incorrect,

[00:03:02] Speaker 01:
then that would make it, would it not, unnecessary for us to address the exclusion of the portions of Mr. Johnson's testimony because the ground for the exclusion was this time limitation.

[00:03:21] Speaker 05:
That's correct.

[00:03:22] Speaker 05:
The court made it completely clear in its ruling that the exclusion of Mr. Johnson's testimony was the result of the Lemony ruling and the fact that it was outside of the 2010-2011 time period.

[00:03:34] Speaker 05:
In that case, part of the testimony and the evidence that was excluded was in fact only one month after the time period.

[00:03:40] Speaker 05:
And so we believe that it should come in whether or not

[00:03:43] Speaker 05:
The limiting ruling is wrong because it's circumstantial evidence of infringement during the earlier period as well.

[00:03:49] Speaker 05:
But you are correct that if the limiting ruling is reversed and it should be that Mr. Johnson's evidence should come in just based solely on the changing of that decision.

[00:04:00] Speaker 01:
Can I ask another kind of procedural question?

[00:04:02] Speaker 01:
On the assumption again that this would go back for the reasons just discussed, would a

[00:04:11] Speaker 01:
summary judgment motion on inability for a reasonable jury to find the requisite knowledge or willful blindness be an available procedural option in the Eastern District?

[00:04:31] Speaker 05:
Generally, under the court's rules, it should not be because there's typically only an opportunity for a single summary judgment motion here.

[00:04:38] Speaker 05:
Adobe already moved for summary judgment of no induced infringement, and the court denied that finding that factual issues precluded a finding of no induced infringement.

[00:04:48] Speaker 05:
So I think Adobe already had that opportunity.

[00:04:51] Speaker 05:
It presented its case.

[00:04:53] Speaker 05:
TechSec successfully opposed that, and that issue should have been an issue that was presented to the jury, but was not because of this later limiting ruling.

[00:05:00] Speaker 05:
Which is really, as we highlighted in our brief, an improper summary judgment determination on induced infringement rather than a true limiting ruling.

[00:05:08] Speaker 03:
But on your reference to the rules, I have the same question that Judge Toronto raised.

[00:05:12] Speaker 03:
Would the district court have discretion to entertain a summary judgment motion on this matter if we were to disagree with the motion in the limiting ruling?

[00:05:20] Speaker 05:
The district court does have discretion to allow additional summary judgment motions, yes.

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

[00:05:27] Speaker 05:
And then it would be a matter of whether or not there's a factual dispute, correct?

[00:05:31] Speaker 05:
Correct, which the court did already find that there was a factual dispute, but, uh, you know, if it was presented in a different way, yes.

[00:05:37] Speaker 05:
Yeah.

[00:05:38] Speaker 05:
Yeah.

[00:05:38] Speaker 05:
Not on that point.

[00:05:40] Speaker 05:
Correct.

[00:05:40] Speaker 03:
Okay.

[00:05:41] Speaker 02:
Thank you.

[00:05:43] Speaker 02:
Yeah.

[00:05:43] Speaker 02:
Counsel, this is Judge Rana.

[00:05:44] Speaker 02:
At some point, I'd like for you to also address what your view of our standard of review is on this particular issue we're discussing.

[00:05:52] Speaker 05:
Absolutely.

[00:05:52] Speaker 05:
As we said, forth in our brief, we believe that the issue should be reviewed de novo.

[00:05:57] Speaker 05:
Uh, the court characterized it as a decision, as a matter of law.

[00:06:01] Speaker 05:
It is a matter unique to patent law.

[00:06:04] Speaker 05:
It is clearly a legal decision that disposed of tech sex induced infringement claims.

[00:06:09] Speaker 05:
So it is a legal conclusion, not an evidentiary conclusion.

[00:06:13] Speaker 05:
We cited the Vanda Pharmaceutical versus West Ford case and Cunningham versus General Dynamics in the Fourth Circuit.

[00:06:19] Speaker 05:
So, we do believe it is a de novo review of a pure legal issue.

[00:06:23] Speaker 05:
Even if it were an abuse of discretion standard, making clear error of law is an abuse of discretion.

[00:06:30] Speaker 05:
And here, there's direct federal circuit case law on point, and this would be a clear error of law that would also amount to an abuse of discretion.

[00:06:39] Speaker 01:
Okay, can I... The district court... Go ahead, Judge Trump.

[00:06:42] Speaker 01:
No, no, go ahead, please.

[00:06:44] Speaker 01:
Okay.

[00:06:45] Speaker 03:
But the district court said a little more than as a matter of law.

[00:06:48] Speaker 03:
And I don't know whether you want to characterize it or three, but he, I don't, and I don't know if you would accept the fact that this was an alternative basis for his conclusion, but he did talk about prejudice and confusion to the jury and matters that typically are reviewed for abuse of discretion, correct?

[00:07:07] Speaker 05:
He did say that it doesn't logically flow from the decision that he was somehow protecting tech sec from prejudice by

[00:07:14] Speaker 05:
disposing of TechSec's induced infringement claim altogether, I think it's clear from both the language and the impact of the decision that this was a decision as a matter of law and not a 403.

[00:07:27] Speaker 05:
It's hard to fathom how the judge could protect TechSec by disposing of its claims in the negative.

[00:07:33] Speaker 01:
Well, I guess I was just going to ask about the very same thing.

[00:07:38] Speaker 01:
Generously read, there are two grounds of the decision.

[00:07:40] Speaker 01:
One is the legal impossibility ground, and that is a

[00:07:44] Speaker 01:
a pure question of law, but the other is a more over paragraph at the end, and I guess I have understood your position to be that while that kind of thing in general is subject to abusive discretion review, there are at least two errors, legal errors in there.

[00:08:00] Speaker 01:
One is it's not up to the court, it's up to TechSec to decide what prejudice to live with, and the second is that you can't possibly decide that the issue cannot be fairly tried

[00:08:13] Speaker 01:
either with or without this evidence, without considering all the other evidence that would bear on the issue.

[00:08:20] Speaker 01:
And that was quite properly not considered in the context of this motion and eliminate because it wasn't a summary judgment motion.

[00:08:28] Speaker 05:
That's correct.

[00:08:29] Speaker 05:
I think that's a fair characterization of that.

[00:08:32] Speaker 05:
The court

[00:08:33] Speaker 05:
simply stated, I mean, Adobe asked for the opportunity to present that evidence if TECSEC opened the door, not to dispose of TECSEC's indirect infringement case altogether through a limiting motion.

[00:08:44] Speaker 01:
And so that's... Just to be clear, when you say TECSEC asked for that, you're referring to essentially the final page in the post-oral argument supplemental filing you made.

[00:08:58] Speaker 01:
Because it didn't seem to me terribly clear

[00:09:02] Speaker 01:
in your original opposition to the motion in Lemony, just as it was, to put it mildly, not clear what exactly Adobe was arguing in its opening motion in Lemony.

[00:09:15] Speaker 05:
I think that's right.

[00:09:16] Speaker 05:
I think it came from a lack of clarity as to what they were actually speaking.

[00:09:19] Speaker 05:
So I think the jury... I'm sorry.

[00:09:24] Speaker 01:
I don't know if it's procedurally appropriate.

[00:09:28] Speaker 01:
Can you say something about the...

[00:09:31] Speaker 01:
the 101 issue or does that appropriately wait until Adobe makes its 101 pitch?

[00:09:37] Speaker 05:
I'm happy to address that, but I was waiting for Adobe to address their issue on the cross appeal and do that in the rebuttal time.

[00:09:44] Speaker 05:
I only got about 30 seconds left in my primary time.

[00:09:49] Speaker 05:
I did want to quickly address the damages issue, which is, this case has already noted that they have no, of no case where they have found that a record supported infringement award of zero royalty.

[00:10:00] Speaker 05:
This is certainly not the first case where such a finding would be appropriate.

[00:10:04] Speaker 05:
The jury appropriately weighed the damages from Adobe's adjudged and stipulated infringement and awarded an amount.

[00:10:13] Speaker 05:
squarely between the two numbers proposed by the experts.

[00:10:17] Speaker 05:
That was supported by substantial evidence, which we've cited in our brief on, our opening brief on pages 56 through 59.

[00:10:24] Speaker 05:
I know I've gone into my rebuttal time, so I will stop there.

[00:10:27] Speaker 03:
Okay.

[00:10:30] Speaker 03:
Finally, we'll hear from the other side, and we'll reserve your time.

[00:10:33] Speaker 03:
Mr. Bell.

[00:10:38] Speaker 04:
Good morning, Chief Judge Prost, and may it please the court.

[00:10:41] Speaker 04:
Gabriel Bell for Adobe.

[00:10:43] Speaker 04:
This case is really about some decisions that TechSec made below in deciding how to litigate this case.

[00:10:50] Speaker 04:
And a prime example of that goes to the panel's questions earlier about the in-limine ruling.

[00:10:55] Speaker 04:
And I'd like to clarify some of that context.

[00:10:59] Speaker 04:
When TechSec opposed Adobe's motion in-limine, TechSec argued forcefully and persuasively that the district court must exclude

[00:11:09] Speaker 04:
the key exculpatory evidence to avoid confusing the jury.

[00:11:13] Speaker 04:
And that can be seen at A10849 to 53.

[00:11:18] Speaker 04:
That was the entire basis of their opposition.

[00:11:21] Speaker 04:
And Judge Grady ultimately agreed with that at A28 and 29, that it would indeed be confusing to the jury.

[00:11:31] Speaker 04:
So TechSec having argued for that and doesn't contend that that exclusion per se is an abuse of discretion now,

[00:11:39] Speaker 04:
With that evidence out at TechSec's insistence, it directly follows that there's no doubt that Adobe could not fairly defend itself against a charge of induced infringement in that period for which TechSec itself had stipulated non-infringement based on a claim construction.

[00:11:58] Speaker 04:
So far from abusing its discretion and for this point, this independent basis, it is an abuse of discretion review to Judge Raina's question.

[00:12:08] Speaker 04:
the district court really had no choice based on how TechSec chose to litigate, but to then remove inducement for that period.

[00:12:16] Speaker 04:
So TechSec says now that it should have been given the choice whether to present this inducement theory.

[00:12:22] Speaker 04:
But respectfully, it did have that choice and refused to make it.

[00:12:27] Speaker 04:
When Adobe presented its motion in limine, it said either all in, that is all of the exculpatory evidence, as well as the inducement theory comes in,

[00:12:37] Speaker 04:
Or, in fairness, it all has to be out.

[00:12:40] Speaker 01:
And Tech, or Adobe said... I'm sorry, Mr. Bell, this is Judge Toronto.

[00:12:46] Speaker 01:
Where in TechSec's opposition to the motion and limiting, did it say, we think it's highly prejudicial, but if you disagree, then we will give up the opportunity

[00:13:07] Speaker 01:
to put in our evidence of inducement if that evidence is going to come in.

[00:13:13] Speaker 01:
I didn't see it ever saying that.

[00:13:15] Speaker 01:
And then in the post-oral argument filing, it made pretty darn clear the exact opposite of that.

[00:13:25] Speaker 04:
Well, so respectfully, as to the latter point, I think you were correct in your observation earlier that it was unclear what they were saying.

[00:13:33] Speaker 04:
It was a one throwaway line at the end of their supplemental brief.

[00:13:37] Speaker 04:
that they finally acceded to, okay, I guess it can all come in.

[00:13:40] Speaker 04:
But in its opposition, it insisted on having it both ways.

[00:13:45] Speaker 04:
So, yes, it didn't say we willingly give up our case, but what it did say was this evidence of, this exculpatory evidence must be excluded.

[00:13:55] Speaker 04:
It did that on every page of its opposition.

[00:13:58] Speaker 04:
And it did so based on the proposition that it would unduly confuse the jury.

[00:14:04] Speaker 04:
And this court has held in cases that that's a legitimate basis for keeping out such evidence.

[00:14:10] Speaker 04:
So we can't really fault the district court for agreeing with TechSec on that point, when in its initial opposition, certainly, and through the vast majority of the three times that the district court considered it, TechSec would not accede to it all coming in.

[00:14:25] Speaker 04:
They deliberately stuck with a strategy of wanting it both ways.

[00:14:30] Speaker 03:
And I think that's why the question is

[00:14:32] Speaker 03:
But I'm excuse, sorry, interrupting.

[00:14:34] Speaker 03:
But the question is at the end of the day, if the judge says we are going to let Adobe put its evidence on whose decision is it to say, well, I'm not going to proceed with this or I'm going to proceed with this in the affirmative.

[00:14:50] Speaker 03:
Is it the district court's judge decision or is it tech sex?

[00:14:54] Speaker 04:
Well, I think tech sex had that choice.

[00:14:58] Speaker 04:
So in response to Adobe's motion eliminate, it could have said, okay,

[00:15:01] Speaker 04:
You're right.

[00:15:02] Speaker 04:
Let's let it all come in.

[00:15:04] Speaker 04:
But it didn't.

[00:15:04] Speaker 04:
It called that actually a false choice and refused to make that decision.

[00:15:09] Speaker 04:
And so then through multiple rounds of briefing, it pretty much stuck to its guns.

[00:15:13] Speaker 01:
Mr. Bell, part of what I guess is troubling me is the heading of your motion and limiting never suggested that without this evidence, I'm sorry, never suggested

[00:15:29] Speaker 01:
either the legal impossibility ground, it said they should not have an inducement case unless this evidence comes in.

[00:15:37] Speaker 01:
And that's what they, what TECSEC was responding to.

[00:15:42] Speaker 01:
It was making the argument that no, we should get our inducement case but not have that evidence come in.

[00:15:50] Speaker 01:
I don't see where your paper gave, as you say,

[00:15:55] Speaker 01:
force them to say what they would do with the inducement case for this post-March 2011 time period if the three documents were going to come in?

[00:16:13] Speaker 04:
I think the way Adobe presented it was an either or.

[00:16:18] Speaker 04:
Throughout the paper it said, we don't think this evidence should come in of inducement.

[00:16:24] Speaker 04:
or rather it said we think we need to have this evidence, this exculpatory evidence.

[00:16:29] Speaker 04:
Basically Adobe was trying to head off a situation where it was going to face an inducement charge but then not be able to bring in the most exculpatory evidence.

[00:16:37] Speaker 04:
So it teed it up in that way and said, look, either we need to be able to present this evidence refuting inducement or inducement shouldn't come in at all.

[00:16:51] Speaker 01:
Right.

[00:16:52] Speaker 01:
And the response by TechSec was, no, we think we should get to put on the inducement case, but that this evidence should not come in because it would be dreadfully unfair.

[00:17:06] Speaker 01:
But that doesn't answer the question.

[00:17:07] Speaker 01:
If you think, if you the judge think that the evidence has to come in if inducement were to go forward, then we don't think inducement can go forward.

[00:17:20] Speaker 01:
That was not one of the choices that Adobe's motion required it to address.

[00:17:28] Speaker 04:
Well, respectfully, I think in the way that TechSec opposed the motion, we can see that it was clear that that was the choice.

[00:17:36] Speaker 04:
And so TechSec said in its opposition almost exclusively, you must keep this evidence out.

[00:17:42] Speaker 04:
And to be sure, they wanted to at the same time have

[00:17:45] Speaker 04:
the unfair advantage of presenting their inducement theory while keeping out that other evidence.

[00:17:51] Speaker 04:
And so I think it would be untoward to fault the district court for saying, OK, we hear you, TechSec, on keeping out this exculpatory evidence.

[00:18:01] Speaker 04:
But then you're going to have to live with the consequences of that.

[00:18:04] Speaker 04:
And TechSec did not want any part of that.

[00:18:08] Speaker 01:
I'm sorry.

[00:18:09] Speaker 01:
But TechSec, after the oral argument, said, we very much want a part of that.

[00:18:14] Speaker 04:
It did, but again in a throwaway line.

[00:18:18] Speaker 04:
In a throwaway line at the end of a supplemental brief after the district court had already addressed it and given them the opportunity to address it again.

[00:18:26] Speaker 04:
And then at the hearing after that additional supplemental briefing on the motion to reconsider, the district court didn't hear any such thing about keeping in both or letting the exculpatory evidence come in while at the same time allowing them to present their case.

[00:18:46] Speaker 04:
So for that reason, we think it's not an abuse of discretion, but we also think as a matter of law, it was a legitimate decision to say in this time period, it's TechSec's burden to come forward and present an inducement theory.

[00:19:01] Speaker 04:
And that where TechSec has itself conceded to non-infringement based on a claim construction, that that's just not viable as a matter of law.

[00:19:10] Speaker 04:
And we think that was correct as well.

[00:19:16] Speaker 03:
Well, why don't we move on to the 101?

[00:19:18] Speaker 03:
I know Judge Toronto obviously has some questions.

[00:19:21] Speaker 03:
So you want to move on to your 101, which is an alternative basis for affirmance?

[00:19:26] Speaker 04:
Certainly.

[00:19:27] Speaker 04:
On Section 101, we think this court's case law, particularly the recent cases of Erickson and Dropbox, provide a significant amount of clarity that these claims, just like those, are ineligible under Section 101.

[00:19:43] Speaker 04:
In those cases, the court addressed claims

[00:19:46] Speaker 04:
technical claims that purported to improve access control security.

[00:19:52] Speaker 04:
And they included jargony type components, very similar to the ones here.

[00:19:57] Speaker 01:
If I can just focus on it, just tell me, I guess when I read Erickson, and to some extent Dropbox too, although Dropbox is maybe even more extreme case, but in any event is non-precedential, both of those involve

[00:20:14] Speaker 01:
I'm not sure I'd use the word jargony, but in any event, wholly general functional terms.

[00:20:24] Speaker 01:
Why was the district court in denying summary judgment here wrong in saying this crosses the line into enough technical specificity by the combination of at least three things

[00:20:41] Speaker 01:
namely the nesting, the encryption, and the labeling all taken together as to which this is not either purely general functional stuff, but in fact a combination of techniques that in the combination is arguably innovative and in fact for the improvement of computer-based secure communications.

[00:21:09] Speaker 04:
There's a couple of reasons for that, Shanta.

[00:21:11] Speaker 04:
The first is that TechSec, the only purported innovation in these claims is multi-level security.

[00:21:19] Speaker 04:
So if we take, for example, claim one, and this is our case.

[00:21:23] Speaker 01:
Where do you get the idea that that's the only purported innovation?

[00:21:27] Speaker 01:
I thought that the preamble, which is limiting in this case, says the multi-level thing, but then the body of the claim says encryption and labeling, and I thought,

[00:21:39] Speaker 01:
that in both the declaration, is it Jones, that was attached to the response to the summary judgment motion and throughout the briefing, it is always the combination of those things that is being advanced as the purported innovation, not just multi-level.

[00:22:00] Speaker 04:
Well, if you look at

[00:22:01] Speaker 04:
The expert testimony from Mr. Wagner, for example, he acknowledged that as their expert, that the key feature is the ability to perform multilevel encryption.

[00:22:11] Speaker 04:
HexX founder, Mr. Scheidt, also, and that's at A12675, acknowledged that that's the key feature.

[00:22:17] Speaker 04:
And that's reflected also in the specification.

[00:22:19] Speaker 01:
Can I just ask, the two things that you just cited, were they part of the summary judgment motion?

[00:22:28] Speaker 01:
The 101 summary judgment motion.

[00:22:32] Speaker 04:
I don't know the answers to that, Your Honor.

[00:22:35] Speaker 04:
I don't know whether they were cited per se.

[00:22:37] Speaker 04:
But the more important point here is the intrinsic record.

[00:22:40] Speaker 04:
And that's the specification at columns 2, 6, line 6, and line 65 to 66, and 4, 25 to 34, where it makes clear that the problem is one level security, according to the patent.

[00:22:54] Speaker 04:
In the past, there was one level security done.

[00:22:56] Speaker 04:
And the patent acknowledges that that was done with all of those combined things that you mentioned.

[00:23:02] Speaker 01:
Well, I'm sorry, I'm not looking at it right now, so my recollection may be incorrect.

[00:23:06] Speaker 01:
But I thought part of what column two says is multi-level encryption is actually part of what's old.

[00:23:15] Speaker 01:
The problem with multi-level encryption all by itself is that you need to give different recipients different keys.

[00:23:22] Speaker 01:
And what a headache that is.

[00:23:24] Speaker 01:
And so what we can do that's better is use the combination

[00:23:29] Speaker 01:
of encryption and labeling, and that gives the document distributor a way to get, to essentially broadcast the document in which different readers will have access to different parts of the document without having to send out, you know, 1,500 or something different keys for encryption.

[00:23:56] Speaker 04:
How does he say that?

[00:23:58] Speaker 04:
I'm sorry, I hear that I'm in my rebuttal time.

[00:24:00] Speaker 03:
No, no, no, please respond.

[00:24:03] Speaker 04:
To answer your question, the patent acknowledges that things like labeling, which could be as simple as tech tech acknowledges, swapping a top secret label on it or putting a password on it, that's all known.

[00:24:17] Speaker 04:
They don't contend otherwise.

[00:24:18] Speaker 04:
There's nothing innovative about putting a label on.

[00:24:21] Speaker 04:
So we are then back to the point of doing it nested one within another.

[00:24:26] Speaker 04:
And that is seen at Figure 3, where it's this nested series of locations secured by keys.

[00:24:32] Speaker 04:
And that, we submit, runs us directly into the analogy that this court found in Erickson.

[00:24:38] Speaker 04:
There, the claims were akin to locking different floors off to secure access for different employees to access different areas.

[00:24:48] Speaker 04:
That's exactly what we have here with one slight twist.

[00:24:50] Speaker 04:
Here, we say also, lock the front door of the building.

[00:24:54] Speaker 04:
That's all that's different.

[00:24:55] Speaker 04:
Do an ID check to get in, and then an additional ID check based on whether you're going to your office, as we all know.

[00:25:02] Speaker 04:
We have keys to the outer door.

[00:25:03] Speaker 04:
We have keys to the inner door.

[00:25:05] Speaker 04:
I don't see any way to meaningfully distinguish that analogy and the underlying human activity from the central point of these claims here, as TXVAC has limited them.

[00:25:18] Speaker 03:
Okay.

[00:25:19] Speaker 03:
Why don't we go back to Mr. Oates and we'll reserve your rebuttal time, Mr. Bell.

[00:25:23] Speaker 03:
Thank you, Your Honor.

[00:25:31] Speaker 05:
Mr. Oates.

[00:25:33] Speaker 05:
Mr. Oates.

[00:25:34] Speaker 05:
Thank you, Your Honors.

[00:25:35] Speaker 05:
The district court properly denied Adobe's 101 motion, concluding that Adobe's argument failed at step one because the asserted claims were not directed to an ineligible concept.

[00:25:45] Speaker 05:
Specifically, the district court found that the patents create a solution to a computer-centric problem which is not addressed by the prior art and offer a solution to a problem which was multiple users in multiple locations accessing information at different security levels from a central repository which would not exist but for the ubiquity of computer technology.

[00:26:12] Speaker 03:
No, your friend talked about Ericsson, so how would you differentiate this from Ericsson?

[00:26:17] Speaker 05:
Sure, these claims here are very different from Ericsson, which was, as I think Judge Toronto pointed out, very high-level, generic steps, first of all, related only to access control, but again, just pure functional language.

[00:26:32] Speaker 05:
Whereas here, this is a specific

[00:26:36] Speaker 05:
technique and specific solution to a computer problem that involves combining things in a new way, access control, encryption, and nesting or embedding encrypted objects within other encrypted objects.

[00:26:51] Speaker 05:
That was unconventional and had not been done before.

[00:26:53] Speaker 05:
And so unlike Erickson, which is really just solution-driven, this is a specific technique that was unconventional.

[00:27:01] Speaker 05:
And in fact, in Adobe's own characterization and prior briefing,

[00:27:05] Speaker 05:
It called the DCOM claims a particularized multi-level and multi-step technique for restricting access on an object-by-object basis using both encryption methods and labels.

[00:27:18] Speaker 01:
So Adobe is... Can I ask you, respond to Mr. Bell's building floor room access in an office building.

[00:27:30] Speaker 01:
Why is this not...

[00:27:33] Speaker 01:
just transferring into a computer access context what is highly familiar in a non-computer access context?

[00:27:45] Speaker 05:
Sure, that is an extreme overgeneralization, the dangers of which were outlined in ENFISH and DDR, but that focuses only on access control.

[00:27:56] Speaker 05:
It only focuses on a single level of security and it doesn't arise in the computer context.

[00:28:02] Speaker 01:
What the problem that the TechSec patents were addressing... I'm sorry, I thought his example is designed to have, I mean, actually quite literally, multiple levels of security.

[00:28:15] Speaker 05:
But only a single type of security.

[00:28:17] Speaker 05:
There you're talking about only access control.

[00:28:19] Speaker 05:
There's no encryption.

[00:28:20] Speaker 05:
And one of the key features of the decom patents is that you're combining encryption with the labeling for access control on those embedded encrypted objects.

[00:28:31] Speaker 05:
So the multi-level is two types of security and then combined in a tiered structure.

[00:28:38] Speaker 05:
And so this is really a new technique that had not been done before.

[00:28:41] Speaker 05:
What Hexec had described in the background is the problems

[00:28:44] Speaker 05:
with single level security, right?

[00:28:47] Speaker 05:
So this is at the patents at one, column one, line 15, all the way through 261.

[00:28:53] Speaker 05:
But the problem with a single level of security or a single type of security is the problem with distributing just a single type of access control.

[00:29:02] Speaker 05:
Here, TechSec is combining access control, keys, labels, and encryption with the nesting to create a new type of security that would protect

[00:29:12] Speaker 05:
computer data in these distributed systems.

[00:29:16] Speaker 05:
So it's really different than just having, it would be way too general just to say that this is just locking a door.

[00:29:22] Speaker 05:
I think one of the analogies Adobe used was, you know, locking the glove box inside the car.

[00:29:28] Speaker 05:
That has nothing to do with encryption.

[00:29:30] Speaker 05:
That's a single type of key access control without changing the underlying data through an encryption process and without using labels of any kind so that you can track and control any of those embedded, nested, encrypted objects.

[00:29:46] Speaker 05:
So I think very different than an overgeneralized locking a car door or locking a floor in a building.

[00:29:54] Speaker 03:
Could you go back just, I don't know how much time you have left, but I assume it's very short, but could you go back to the point on the motion and lemonade that Mr. Bell was emphasizing in terms of Texas position and what the district court did?

[00:30:13] Speaker 05:
Yes, I think just trying to hit it correctly.

[00:30:16] Speaker 05:
And that is the tech sec was never presented with the position of give up your indirect infringement claims if you don't want this evidence to come in.

[00:30:24] Speaker 05:
What Adobe captioned its motion as was you either don't present the evidence or this evidence all comes in.

[00:30:32] Speaker 05:
And we said, well, we want to present our app.

[00:30:34] Speaker 05:
We want to present our indirect infringement case.

[00:30:36] Speaker 05:
We don't think that evidence should come in, but we absolutely want to present our indirect infringement case.

[00:30:41] Speaker 05:
When it became clear at and after the oral argument that the district court had turned that into a summary judgment motion on indirect infringement, TechSec said, you know, they filed a supplemental brief and said, we absolutely want our indirect infringement case.

[00:30:57] Speaker 05:
And if the evidence comes in, it comes in and we'll deal with it.

[00:31:00] Speaker 05:
That's the decision that TechSec would make, but we are absolutely not giving up our indirect infringement case in the face of a limiting motion.

[00:31:10] Speaker 05:
Okay.

[00:31:11] Speaker 01:
Thank you, Mr. Bell.

[00:31:13] Speaker 01:
Can I just ask a housekeeping matter?

[00:31:18] Speaker 01:
I would appreciate receiving two things.

[00:31:23] Speaker 01:
One is pages 24451 to 52 of the Joint Appendix, which you quote in your brief, but actually doesn't appear in the Joint Appendix.

[00:31:32] Speaker 01:
I think that's maybe a blog post or something.

[00:31:34] Speaker 01:
24451 to 52.

[00:31:40] Speaker 01:
Okay.

[00:31:41] Speaker 01:
Which you do quote, I think, but mysteriously is not in the Joint Appendix.

[00:31:45] Speaker 01:
And then 23450 to 52 is completely illegible.

[00:31:52] Speaker 05:
I know that there was one order asking for a clear, more legible copy of that.

[00:31:57] Speaker 01:
Something of a rolling process.

[00:32:00] Speaker 05:
Okay.

[00:32:00] Speaker 01:
Sorry about that.

[00:32:02] Speaker 05:
Okay, we'll make sure that we get those submitted.

[00:32:03] Speaker 05:
Okay, thank you.

[00:32:05] Speaker 05:
Thank you.

[00:32:06] Speaker 05:
Thank you, Your Honor.

[00:32:08] Speaker 04:
Thank you, Your Honor.

[00:32:09] Speaker 04:
I just want to follow up on the questioning and the point about what multilevel security involves.

[00:32:15] Speaker 04:
TechSec now wants to make it about a complex series of steps, but here's what this court held in TechSec 2 based on TechSec's position.

[00:32:24] Speaker 04:
This court said, TechSec's position is that an acrobat performs multilevel security whenever a user encrypts a PDF and then attaches it to a separate PDF and then encrypts that PDF.

[00:32:35] Speaker 04:
It's as simple as putting one encrypted thing inside another.

[00:32:39] Speaker 04:
That's what this court said at 658F Appendix 584, and this court agreed.

[00:32:45] Speaker 04:
So text that can't now say it's something much more complex.

[00:32:48] Speaker 04:
And when you look at the claims themselves, I urge the court to put the claims here side by side with those in Ericsson and Dropbox, and you'll see here nothing but generalized, hard to imagine, more highly generalized steps.

[00:33:01] Speaker 04:
for doing encryption and decryption and labeling things and then giving access based on the label.

[00:33:07] Speaker 04:
We granted access based on identification or other things in Ericsson and in Dropbox and that wasn't enough.

[00:33:15] Speaker 04:
And TechSec doesn't claim again that putting a label on something or having a password is somehow anything innovative.

[00:33:22] Speaker 04:
In fact, label here was defined as anything that determines what, who or where is authorized to receive the object.

[00:33:30] Speaker 04:
That's again in text back to 658 that's appendix at five eight.

[00:33:34] Speaker 04:
And again, that brings us back to the analogy we discussed before.

[00:33:38] Speaker 04:
You could have an ID check at the front building as is done in the court to get access into the other floors and then have to further show ID or use a key to get in specific areas within it.

[00:33:50] Speaker 04:
And so it's not overgeneralizing the claims here any more than in Erickson where it was a

[00:33:56] Speaker 04:
computer-based system that was designed purportedly to improve access control.

[00:34:02] Speaker 04:
Same in Dropbox.

[00:34:03] Speaker 02:
Council, this is Judge Rayna.

[00:34:05] Speaker 02:
And going back to your analogy, it seems to me here that this technology is that you don't have to have access to the building, that you can just skip straight to the office.

[00:34:19] Speaker 02:
What's your response to that?

[00:34:21] Speaker 04:
So what TechSec claims is the invention here is

[00:34:25] Speaker 04:
an encrypted outer object that once you get through that encryption, another encrypted object on the inside.

[00:34:32] Speaker 04:
So you need to have the keys to both, in effect.

[00:34:35] Speaker 04:
And you can see that, Your Honor, at Figure 3 of the patent, where it's this nested series of areas that actually shows it using a traditional metal key.

[00:34:46] Speaker 04:
And the patent itself analogizes objects to things like your car.

[00:34:50] Speaker 04:
So while TechSec denigrates any sort of analogy to real world, I think the spec itself in Figure 3 and its discussion of what an object is, as well as this court's discussion of analogies in Erickson, puts this squarely within the realm of what this court held has long been held ineligible, or at least repeatedly, and that is controlling access to resources using software.

[00:35:15] Speaker 04:
This court said,

[00:35:16] Speaker 04:
is an abstract idea and we think the same reasoning applies here and the claim should be held ineligible just as in Erickson.

[00:35:25] Speaker 03:
Okay, thank you.

[00:35:26] Speaker 03:
We thank both sides and the case is submitted.

[00:35:29] Speaker 03:
Thank you, Your Honor.