[00:00:57] Speaker 02: OK, the next argued case is number 19, 1808, rppal.com incorporated against Twitter incorporated. [00:01:08] Speaker 02: Mr. Hudnell. [00:01:11] Speaker 00: Good morning, Your Honors. [00:01:18] Speaker 03: Mr. Hudnell, I see your name on an amicus brief, not on the blue brief. [00:01:27] Speaker 00: That's correct, Your Honor. [00:01:28] Speaker 00: At the time the amicus brief was filed, I submitted the amicus brief. [00:01:33] Speaker 00: Several months later, VoIPAL switched counsel, and they engaged me to represent them in this appeal, four or five months after the amicus brief was filed. [00:01:50] Speaker 03: Your Honor. [00:01:50] Speaker 03: Because we don't normally have amity argue. [00:01:55] Speaker 03: And I didn't recall a motion permitting Amiki to argue, but you're now representing the appellant. [00:02:01] Speaker 00: I am representing the appellant, yes. [00:02:06] Speaker 00: And may I please the court? [00:02:11] Speaker 00: Your Honors, in this appeal, Voipal asked the court to reverse the district court's order dismissing its third amended complaint, because the district court erroneously determined that Voipal failed [00:02:21] Speaker 00: to plausibly allege that the asserted claims of the two patents in this case recite patent-eligible subject matter. [00:02:30] Speaker 00: And if we look at the third amended complaint, which is in the appendix at 1333, and specifically beginning with paragraphs 7 through 16, which run on pages 1335, [00:02:50] Speaker 00: through 1340. [00:02:53] Speaker 00: In these paragraphs, Voipal presents detailed factual allegations as to why the claims asserted both improve upon the prior art and recite an inventive concept. [00:03:09] Speaker 00: And one of the things that's detailed in these passages. [00:03:12] Speaker 03: But let's look at the claims. [00:03:15] Speaker 03: You have two claims, one from the 815 patent and one from the 005. [00:03:21] Speaker 03: And looking at claim one of 815, it consisted of passing information back and forth, receiving a caller identifier, locating the profile, determining a match, classifying the call, producing a message. [00:03:40] Speaker 03: This is all abstract. [00:03:44] Speaker 00: We would disagree that, Your Honor, respectfully that the claims are abstract. [00:03:50] Speaker 00: because they recite a sufficiently specific improvement over the prior art. [00:03:56] Speaker 03: So if they do so using abstract language, whether they're non-obvious or brilliant isn't the point. [00:04:05] Speaker 03: The point is whether the claims are limited to abstract method limitations. [00:04:18] Speaker 00: Yes, Your Honor. [00:04:19] Speaker 00: And I think what's key here and where I was going with this discussion is the recent KPN case, which this court decided and we submitted through a notice of supplemental authority. [00:04:32] Speaker 00: And in that case, what you had was similar data. [00:04:35] Speaker 00: It was media being passed back and forth between devices, data. [00:04:40] Speaker 00: And the limitations recited such things as, [00:04:44] Speaker 00: capturing data, transmitting data between the devices. [00:04:50] Speaker 00: And what happened in KPN is that the court said, well, this court said, well, that may be. [00:04:56] Speaker 00: The claim does involve data. [00:04:59] Speaker 00: And we don't dispute that this claim involves data. [00:05:03] Speaker 00: But it's not directed to the data. [00:05:05] Speaker 00: It's not claiming data. [00:05:07] Speaker 00: But where is the improvement? [00:05:09] Speaker 00: Right. [00:05:12] Speaker 01: You're saying it's not targeted toward the abstract idea of gathering data. [00:05:16] Speaker 01: It's targeted toward the improvement, computer improvement, about what you do with that data. [00:05:22] Speaker 01: But where does that show up in the specification or the written description? [00:05:28] Speaker 00: In the written description or the claims? [00:05:30] Speaker 00: Because I could? [00:05:30] Speaker 00: Well, both. [00:05:31] Speaker 00: OK. [00:05:32] Speaker 00: The claim is what counts. [00:05:33] Speaker 00: Right. [00:05:34] Speaker 00: I'll start with the claim, Your Honor. [00:05:36] Speaker 00: So in order to understand the improvement, it's important to understand what the prior art did. [00:05:42] Speaker 00: The prior art, there's two types of prior art that we describe in the first and third amended complaint for call routing. [00:05:50] Speaker 00: One was PSTN nodes, public telephone nodes. [00:05:54] Speaker 00: What they did is they routed calls solely based on the number that was dialed. [00:05:59] Speaker 00: So if your number is 917-861-3494, it's going to take that number and route the call to the public network. [00:06:08] Speaker 00: The second type of node that we describe in the third amended complaint [00:06:12] Speaker 00: are private network nodes. [00:06:15] Speaker 00: We have a private phone system within an organization. [00:06:19] Speaker 00: Now those systems had to, one, make a decision whether when you dial the number, whether that number was within the private network and it could route the call there, or whether that number was on the public network and it had to place the call on the public network in order for the call to get to the public network, the user had to take an affirmative step [00:06:41] Speaker 00: and dial a nine, conventionally, to get to the public net. [00:06:45] Speaker 00: Now, where the improvement is in these, and I should say with respect to PBX notes, again, the routing was solely based on the number that was dialed. [00:06:56] Speaker 00: Where the improvement is in these claims is that the routing is based on the number dialed plus information about the caller. [00:07:06] Speaker 00: And you can see that in the limitations. [00:07:08] Speaker 00: So if we look at 815, [00:07:11] Speaker 00: claim one, the locating limitation locates a caller dialing profile. [00:07:18] Speaker 00: That profile has certain attributes about the caller in the profile. [00:07:23] Speaker 00: In the next step, determining a match [00:07:27] Speaker 03: when at least one is at- Does it locate it through a physical process or through software? [00:07:34] Speaker 03: The movement of data, information? [00:07:37] Speaker 03: It's looking the profile up in a database, so- In other words, the improvement is represented and described by an abstraction. [00:07:46] Speaker 03: Well- It's abstraction on abstraction. [00:07:52] Speaker 00: I respectfully disagree, because there's another step here, Your Honor, and that is [00:07:56] Speaker 00: Once you have the profile of the caller, then you have to evaluate the attributes in that profile against the number that was dialed, the callee's phone number, in order to make a determination how you're going to route the call, whether the call is going to go to the public network or whether the call is to the private network. [00:08:16] Speaker 01: Right, so the closest you come is right at the end where in claim one, you talk about [00:08:22] Speaker 01: producing a public network routing message for receipt by the call controller. [00:08:28] Speaker 01: But there's nothing that explains how that's done or what type of technology is used to accomplish that. [00:08:37] Speaker 01: I don't see where you have, my problem is getting rid of dialing nine is great. [00:08:45] Speaker 01: So that's wonderful. [00:08:47] Speaker 01: I just don't see where you've claimed that. [00:08:53] Speaker 00: There's sort of two issues wrapped up in your question, Your Honor, first with respect to dialing the nine. [00:09:00] Speaker 00: The claim here is too simplistic to look at this claim. [00:09:05] Speaker 00: I mean, it covers the situation where you don't have to dial the nine, meaning if I dial a number using this claim, it's going to route the call based on not only the number that I dialed, but information that comes from my profile. [00:09:21] Speaker 00: And so it's not simply replacing dialing 9. [00:09:25] Speaker 00: It's completely eliminating that. [00:09:27] Speaker 00: It's taking that control from me as the user of this system. [00:09:33] Speaker 00: It's taking that control away and then providing additional functionality that didn't exist in these prior art nodes. [00:09:39] Speaker 01: But do you claim the classification criteria that's used to make these distinctions? [00:09:44] Speaker 00: Yes. [00:09:44] Speaker 00: Yes, we do, Your Honor. [00:09:45] Speaker 00: In fact, we're [00:09:51] Speaker 00: So one example of the classification criteria appears in claim 12, which recites, wherein classifying, comprising, classifying a call as a private network call when said reformatted callee identifier identifies a subscriber to the private network. [00:10:09] Speaker 00: So essentially what happens in this claim is that if in this step, in this step we're worried. [00:10:19] Speaker 01: The only argument that's even close to having been made that the district court was directed to any claim other than the representative claims that she identified had to do with claim 28. [00:10:33] Speaker 01: Where did you identify claim 12 as something that needs to be independently analyzed? [00:10:50] Speaker 00: I'm not certain if it was. [00:10:51] Speaker 00: I could take a look at the brief when I sit down for rebuttal to find and see if we separately identified Claim 12. [00:11:00] Speaker 00: But the point is, Your Honor, is that the classification criteria is there in Claim 12. [00:11:11] Speaker 00: Now back to your question about the how issue, how this claim accomplishes its task. [00:11:20] Speaker 00: I think it's important to go back to where I was with the KPN case. [00:11:25] Speaker 00: The KPN case says that the how question is answered at the level, what is the desired goal of the claim? [00:11:35] Speaker 00: And have you recited sufficiently specific steps to achieve that goal? [00:11:41] Speaker 00: And so here, when you were asking Judge O'Malley about the [00:11:45] Speaker 00: classification step, that is merely one step of achieving the overall goal. [00:11:51] Speaker 00: And KPN draws that line at the desired goal, here being routing the caller, routing the call with information from the caller and the callee, but it gives you the specific steps that you take to do that. [00:12:06] Speaker 00: You have to [00:12:07] Speaker 00: Find the profile. [00:12:08] Speaker 00: You have to compare it to the callee's phone number that you dialed. [00:12:14] Speaker 00: You have to determine if there's a match, meaning that there's a number in the system that the system recognizes that it can actually make a determination on whether I'm going to route this call to the private network or to the public network. [00:12:27] Speaker 03: All of which consists of a computer comparing data. [00:12:30] Speaker 03: Right. [00:12:35] Speaker 00: It is, the claim is performed by a computer, but it's an improvement over what existed before in the prior art. [00:12:44] Speaker 00: The prior art was computerized too. [00:12:47] Speaker 03: PBX is- In other words, abstract over abstract. [00:12:51] Speaker 03: What's abstract to begin with isn't necessarily non-abstract if it is improved on by abstractions, by comparing data. [00:13:04] Speaker 00: Again, Your Honor, I respectfully disagree that the claims are directed to data. [00:13:10] Speaker 00: But even if the claims were directed to, even if you were to find that the claims were directed to an abstract idea, we still believe that we satisfied that the second step, the second prong of the Alice test, which is that the claims recite the invented concept of transparently routing calls in a user-specific manner. [00:13:31] Speaker 00: And the most critical error that the district court made in this case is that if you look at the analysis of step two, which appears that APPX 34 through 38 and 43 through 46 for the second claim, second patent, excuse me, the district court never considered the allegations in the third amended complaint where we plausibly allege that [00:13:58] Speaker 00: The method, the methodology, the specific steps recited in the claim were unconventional at the time. [00:14:04] Speaker 00: Again, remember where I started. [00:14:05] Speaker 00: PBXs, I'm sorry, PSTN nodes, routes only based on the, it was conventional, only to route based on the number that's actually dialed. [00:14:15] Speaker 00: PBXs, private calls, routed only based on the numbers dialed. [00:14:20] Speaker 00: Here, what this claim lays out is specific steps [00:14:24] Speaker 00: for routing the call based on not only the number that's dialed, but also information about me as the caller to make a determination of whether I go to the public network or the private network. [00:14:37] Speaker 00: And with those allegations that the district court didn't consider, it's Voipal's position that this matter should be reversed under the precedent that this court has set in Atrix, in Cellspin, in Bazcom, where [00:14:53] Speaker 00: where there were plausible allegations and there was nothing in the record to refute them, specifically at step two, which is inherently a factual inquiry. [00:15:10] Speaker 02: Let's save your time for rebuttal. [00:15:11] Speaker 00: I'll save my time for rebuttal. [00:15:12] Speaker 00: Thank you. [00:15:14] Speaker 02: Thank you. [00:15:21] Speaker 02: Mr. Perry. [00:15:22] Speaker 04: Thank you, Judge Newman, and may it please the court. [00:15:25] Speaker 04: Judge O'Malley, you asked my friend, where is the improvement? [00:15:28] Speaker 04: And he said, and I quote, routing based on the number dialed plus information about the caller, end quote. [00:15:35] Speaker 04: That is the abstract idea found by the district court. [00:15:38] Speaker 04: And I quote at appendix 25, routing a call based on characteristics of the caller and colleague. [00:15:43] Speaker 04: We agree that the claim recites that and nothing more than that. [00:15:47] Speaker 04: And when we focus on the claim language, [00:15:49] Speaker 04: We have here at step one, nothing but an information management claim. [00:15:55] Speaker 04: Data comes in, phone numbers, which the specification says all these identifiers and attributes are phone numbers. [00:16:01] Speaker 04: And data comes out, a routing message. [00:16:03] Speaker 04: And in between is a black box that contains matching criteria and classification criteria that are not claimed, that are not described, and that are not anywhere disclosed to the world. [00:16:14] Speaker 01: So that when my friend told you- Why isn't this like DDR holdings, though? [00:16:19] Speaker 01: computer system that can do x, and then the system says, but I can add to that, I can tweak that, I can make it do y in a much better way. [00:16:30] Speaker 01: Why isn't this similar to that? [00:16:33] Speaker 04: Well, two reasons, Your Honor. [00:16:34] Speaker 04: First is this is a generic module. [00:16:37] Speaker 04: This is software programming. [00:16:38] Speaker 04: There is no hardware. [00:16:39] Speaker 04: Remember, in DDR, we actually had the filtering machine was placed on the network. [00:16:45] Speaker 04: And one of the claims in describing the written description was the physical location of the filtering machine on the network. [00:16:51] Speaker 04: That was different, right? [00:16:53] Speaker 04: Here, though, excuse me, that was Bascom. [00:16:55] Speaker 04: In DDR, the workings of the hyperlink was changed from the way it would ordinarily work. [00:17:01] Speaker 04: And this goes to one of your other questions about not dialing 9 would be great. [00:17:05] Speaker 04: Mr. Hudnell says, this would, quote, cover the situation where you don't dial 9, end quote. [00:17:10] Speaker 04: I don't know if that's true. [00:17:11] Speaker 04: But we know it would also cover the situation where you do dial 9. [00:17:15] Speaker 04: Because if the classification criterion was, if you dial 9, you route it to the PSTN, that would meet all the limitations of this claim. [00:17:23] Speaker 04: It doesn't invent anything, whereas DDR and Bascom, those claims change the ordinary operation of a network in a way that had never been seen before. [00:17:31] Speaker 04: And that is not claimed here, and it's not in the specifications. [00:17:34] Speaker 04: Which is why, to jump to the end of the story, I suppose, I'll go to where Mr. Hudnall started, which is with the complaint. [00:17:40] Speaker 04: You know, we've heard very little in this case about the claims, because the claim, claim one, is absolutely abstract and contains no inventive concept. [00:17:47] Speaker 04: The written description, the specification, gets almost no play. [00:17:51] Speaker 04: They want to go to the complaint. [00:17:52] Speaker 01: This was decided based on the pleadings. [00:17:55] Speaker 01: Absolutely, Robert. [00:17:56] Speaker 01: So, I mean, why don't we have the cell spin problem? [00:17:58] Speaker 04: Well, cell spin is the best case for us, we think, because cell spin says, and let me get the quote exactly right, [00:18:05] Speaker 04: This is 927 F3 at page 1317. [00:18:08] Speaker 04: What makes the claim inventive must be recited by the claims. [00:18:13] Speaker 04: That's a direct quote from Selspin. [00:18:15] Speaker 04: And that's what we don't have here. [00:18:17] Speaker 04: Of course, the complaint can add allegations about what's routine, well understood, and conventional once you have something inventive recited in the patent. [00:18:25] Speaker 04: What the complaint cannot do [00:18:28] Speaker 04: is create an invention. [00:18:29] Speaker 04: Patents create inventions. [00:18:30] Speaker 04: Patents claim. [00:18:31] Speaker 04: Claims claim, right? [00:18:33] Speaker 04: And the written description describes. [00:18:34] Speaker 04: The complaint cannot satisfy step two. [00:18:36] Speaker 04: The complaint can satisfy the routine, well-understood, and conventional step, but we don't get there in this case. [00:18:42] Speaker 04: And Judge Coe didn't get there in this case because at step one it clearly is abstract, and at step two no inventive concept is claimed. [00:18:49] Speaker 04: And if there's no claimed inventive concept, we don't ever get to the question of conventionality. [00:18:53] Speaker 01: What do we do with the fact that [00:18:55] Speaker 01: You know, on IPR, the board thought this wasn't obvious, at least. [00:18:58] Speaker 04: Well, Your Honor. [00:18:59] Speaker 01: Doesn't that imply some inventiveness? [00:19:01] Speaker 04: No, Your Honor. [00:19:02] Speaker 04: Well, we think that's wrong. [00:19:03] Speaker 04: Of course, that appeal is pending in this court, and Apple is challenging that. [00:19:07] Speaker 04: And this court has many cases. [00:19:09] Speaker 04: Salyutran, for example, where a previous board determination of obviousness is not determinative of eligibility. [00:19:14] Speaker 04: Judge Newman has written opinions on this very subject, of course. [00:19:17] Speaker 04: And they have taken separate paths in the jurisprudence. [00:19:20] Speaker 04: And this one has to be evaluated under the 101 standards. [00:19:24] Speaker 04: And it fails every which way. [00:19:26] Speaker 04: There's not a precedent in which a claim drawn to this level of abstraction with no inventive concept disclosed anywhere in the four corners of the patent could survive, which is why Voight-Powell wants to talk about the complaint. [00:19:39] Speaker 04: But the complaint can't get over the failure in the claim. [00:19:44] Speaker 01: Should there have been a construction of the claim? [00:19:47] Speaker 04: Your Honor, if Voigtveld had asked for a construction, yes, but they didn't. [00:19:53] Speaker 04: And let's be very clear about what happened here because it's a little bit misleading, I believe, in the appellate briefs. [00:19:58] Speaker 04: VoIPal pointed to claim 28, the means plus function claim, and did not ask that it be construed. [00:20:04] Speaker 04: And I think this is important because what VoIPal did not say that it is limited to the structure or the specification, that it's restricted in any way, right? [00:20:12] Speaker 04: They just said in the opposition that claim 28 and figures 8a to 8d was an example of non-abstractness at step one. [00:20:20] Speaker 04: That's not true on its own face. [00:20:22] Speaker 04: If you look at, for example, the means for locating step of claim 28, VoIPAL tells us the corresponding figure is box 258 of figure 8a, which says look up the dialer profile. [00:20:38] Speaker 04: It just repeats the same generic element. [00:20:41] Speaker 04: But more importantly, VoIPAL did not ask the court to construe that claim and did not ask the court to construe any other claim. [00:20:48] Speaker 04: There is a stray half sentence on page appendix 1325 near the very end of their opposition to the motion to dismiss that says, not only is claim construction required, comma, and then it goes on to discuss something else. [00:21:01] Speaker 04: No claim is identified. [00:21:02] Speaker 04: No claim limitation is identified. [00:21:04] Speaker 04: No dispute is identified. [00:21:06] Speaker 04: And most importantly, Judge O'Malley, [00:21:08] Speaker 04: VoIPal has never said to the district court or this court what limitation, if construed in VoIPal's favor, would change the 101 analysis. [00:21:17] Speaker 04: And under my mail, that's the question for claim construction, right? [00:21:20] Speaker 04: If it doesn't matter for 101, we don't need to construe the claims. [00:21:24] Speaker 04: It's only if they have a 101 determination. [00:21:26] Speaker 04: The key one, I would submit, [00:21:28] Speaker 04: The key claim limitation would be the classifying step, right? [00:21:31] Speaker 04: The classifying criteria which are not described, which are not claimed in any specificity, which are not described in the specification. [00:21:38] Speaker 04: There's a reason for that. [00:21:40] Speaker 04: There's no amount of claim construction can remedy the complete black box nature of that aspect of this claimed method. [00:21:50] Speaker 04: And so that while, of course, of course, a district court should construe claims upon request, either construe them or adopt the patentee's construction, as my own mail says, it is the patentee's obligation to put forward a disputed limitation and explain why it matters for the 101 structure [00:22:08] Speaker 01: What about the producing a public network routing message for receipt by the call controller? [00:22:15] Speaker 04: Well, again, they didn't ask that that be construed, and the only aspect of it [00:22:23] Speaker 04: Producing the routing message is just data, or sending the data, whether it's a public routing message or a private routing message, which are the last two elements of the claim, is an output of the classification criteria. [00:22:35] Speaker 04: It says classifying the criteria as public or private, depending on the criteria, and then you just produce a message that follows the classification. [00:22:43] Speaker 04: We come back to the same black box problem that the classification criteria are never disclosed, are never described. [00:22:51] Speaker 04: One doesn't know how this invention is practiced. [00:22:54] Speaker 04: This, by the way, is what defeats the claim, the suggestion that something called user-specific calling is claimed. [00:23:01] Speaker 04: It's not. [00:23:03] Speaker 04: We don't dispute, nobody has ever disputed, that information about the caller is described in the first element of the claim. [00:23:11] Speaker 04: But nothing about this claim requires any user specificity whatsoever. [00:23:15] Speaker 04: If the classification criteria were every number from the 202 area code gets routed in a particular way, that would be a classification criterion. [00:23:25] Speaker 04: It would have nothing to do with the user. [00:23:27] Speaker 04: There's seven plus million phone numbers in the 202 area code. [00:23:31] Speaker 04: We don't have any teaching. [00:23:33] Speaker 04: We don't have any claim limitations, and we don't have any teaching in the specification about that user specificity. [00:23:39] Speaker 04: Dial 9, the only specific example I already mentioned, the claim equally reads on a system in which you do have to dial 9 to get out of your private exchange and onto the public network. [00:23:48] Speaker 04: So that there's nothing specific or concrete. [00:23:53] Speaker 01: So are you saying that even if 101 weren't a problem, this would be a problem under 112? [00:23:58] Speaker 04: This would have a problem under 112 and 103. [00:24:02] Speaker 04: But 112, certainly in the way that they're trying to [00:24:06] Speaker 04: The complaint, Allegations Paragraphs 12 and 13, are describing aspects that are not claimed, benefits that are not claimed. [00:24:17] Speaker 04: And to be clear, my point is a method according to Claim 1 might have those benefits, but it might not. [00:24:25] Speaker 04: They are not required by a method according to Claim 1, which is why Voight Palin's briefing has been very careful to use words like [00:24:31] Speaker 04: encompass or embody. [00:24:33] Speaker 04: They never say that claim one is limited to user-specific calling or transparent routing. [00:24:38] Speaker 04: And this court in Berkheimer made this point extremely clear. [00:24:41] Speaker 04: Remember, at the end of Berkheimer, the court said that the independent claim one was ineligible. [00:24:48] Speaker 04: But the dependent claim four and five may be eligible. [00:24:52] Speaker 04: The dependent claims had to be encompassed by the independent claims. [00:24:55] Speaker 04: That's Black Letter Law. [00:24:57] Speaker 04: So it's not enough that it's encompassed. [00:24:59] Speaker 04: It has to be claimed. [00:25:00] Speaker 04: It has to be limited. [00:25:02] Speaker 04: And this goes all the way back to Mayo. [00:25:03] Speaker 04: The whole two-step framework is based on what is claimed. [00:25:07] Speaker 04: The first step, you evaluate the claim. [00:25:09] Speaker 04: The second step, you evaluate the claim. [00:25:10] Speaker 04: You only get to the complaint when you get to well-understood, routine, and conventional. [00:25:15] Speaker 04: And so that all of these arguments that have been presented in this case ignore the claim language, because the claim language which Judge Koh dealt with, every limitation, every word is addressed in her opinion, all established under DDR and everything else that this is an abstract claim. [00:25:32] Speaker 01: Was there ever a request to Judge Koh to construe or address claims 12 or 28 differently? [00:25:40] Speaker 04: Claim 12 has never come up to my knowledge claim 28 the only way claim 28 came up your honor It's an it's in the appendix at pages 13 15 to 13 16 which is Voipal's opposition to the motion to dismiss and footnote 13 by the way and what what Voipal said and I'm quoting is [00:26:04] Speaker 04: Defendant, and so it's a step one argument. [00:26:06] Speaker 04: Defendant's assertion that the claims are directed to an abstract idea is even less plausible for means plus function claims such as the apparatus in claim 28 of the 815. [00:26:17] Speaker 04: And then it goes on to say, means would be interpreted under 112.6 to pick up the corresponding structures. [00:26:24] Speaker 04: That's true if they had asked for that construction. [00:26:26] Speaker 04: Of course, they don't tell us which corresponding structures. [00:26:28] Speaker 04: And then in footnote 13, [00:26:30] Speaker 04: VoIPAL ties out the limitations, the means limitations in claim 8 to 10 of the 53 boxes disclosed in figures 8a through 8d. [00:26:41] Speaker 04: They don't tell us whether the other 43 are limiting, they don't tell us whether the other 43 do anything, and as I've said the actual tie-out to my mind doesn't change the analysis. [00:26:54] Speaker 04: Footnote 13 says for example, [00:26:56] Speaker 04: Means for locating a caller dialing profile is block 254. [00:27:00] Speaker 04: Block 254 is get dialing profile for caller. [00:27:05] Speaker 04: So, you know, means plus structure means the structure actually has to do something. [00:27:09] Speaker 04: It has to teach a person a skill in the art how to accomplish the means. [00:27:14] Speaker 04: Repeating the means in a block diagram, in a logic flow diagram, doesn't get you there even under 112.6. [00:27:20] Speaker 04: The only point of that, Judge Amali, is if they had actually asked for a 112-6 construction, we would have had a go-round about which are limiting, which are enabling, what satisfies the description requirement, and so forth, and whether a person of skill in the art could have actually programmed a computer based on the logic flows presented in figures A to A through A to D. I think that's an open question. [00:27:39] Speaker 04: It was never resolved here because VoIPAL didn't ask for it. [00:27:42] Speaker 04: And certainly, as the issue before this court, it's irrelevant because they never [00:27:45] Speaker 04: have said that there's anything, they have never pointed to a single block, a single arrow, a single logic flow that would change the 101 analysis because nothing in these figures discloses the two things that they now claim are inventive, they now contend are inventive, which they never claimed in their patent. [00:28:17] Speaker 04: Your Honor, Judge Lurie, you asked about the amicus brief. [00:28:21] Speaker 04: Mr. Hudnall represented Voipel at the time he wrote that amicus brief, too. [00:28:23] Speaker 04: And I think Voipel is fairly charged with the things in that amicus brief. [00:28:27] Speaker 04: I think they sort of give the game away there. [00:28:29] Speaker 04: They say step two always requires a factual inquiry. [00:28:32] Speaker 04: That's pages seven and eight. [00:28:34] Speaker 04: And that the complaint can create a fact question about what the inventive concept is. [00:28:37] Speaker 04: That's pages five and six. [00:28:40] Speaker 04: The court would be making [00:28:41] Speaker 04: dramatic new law if it accepted either of those suggestions. [00:28:44] Speaker 04: I think it's flat wrong under Mayo and Alice, both of which direct us to the claims. [00:28:49] Speaker 04: And the fact that that's the extent to which they have to go on their argument shows that they are so far from the patent. [00:28:55] Speaker 04: I would ask the court to return to the claims, in particular the representative claims, which Judge Coe identified and which Voight-Pel did not dispute below. [00:29:03] Speaker 04: Claim one of the 815 patent is directed to another. [00:29:06] Speaker 01: Was that really the point that was being made, or was the point more what [00:29:10] Speaker 01: what Burkheimer and Selsman say, which is that the question of whether something was routine or known or ordinary is a question of fact. [00:29:22] Speaker 01: And you have to accept all allegations in the complaint on that topic as true. [00:29:26] Speaker 04: And on that, Your Honor, there is no disagreement with anybody in this courtroom, I don't think. [00:29:30] Speaker 04: That is the law under Burkheimer and Atrix at the motion to dismiss stage. [00:29:33] Speaker 04: Selsman applied that. [00:29:35] Speaker 04: But that goes to, [00:29:37] Speaker 04: After we identify an abstract idea, so it fails step one, and after we identify in the claim an inventive concept that Amdocs, by the way, tells us has to be supported in the specification, then we get to the third question, if you will. [00:29:53] Speaker 04: So the Berkheimer question, there may be an inventive concept. [00:29:56] Speaker 04: Then the question is, was it well understood, routine, and conventional? [00:29:59] Speaker 04: That is the only factual question on which any of these cases have been remanded and that the allegations must be plausible and must be credited. [00:30:07] Speaker 04: We never got to that point in this case, and we don't ever need to get to that point in this case, because this clearly fails at step one. [00:30:14] Speaker 04: And at step two, there is no inventive concept recited in these claims or disclosed in the specification. [00:30:19] Speaker 04: And a complaint cannot create an inventive concept. [00:30:22] Speaker 04: That would destroy the concept of claiming under patent law. [00:30:25] Speaker 04: The inventive concept must be in the claims, and only then do we get to the Berkheimer question. [00:30:31] Speaker 04: And we never do that in this case. [00:30:33] Speaker 04: I see my time has expired, unless the court has further questions. [00:30:37] Speaker 04: Thank you, Your Honors. [00:30:38] Speaker 03: Thank you. [00:30:46] Speaker 02: Mr. Hudnett. [00:30:48] Speaker 00: Thank you, Your Honors. [00:30:51] Speaker 00: So my friend in the beginning of his time indicated that he thinks Stelzman is a good case for their side. [00:30:58] Speaker 00: We think Stelzman is a good case for our side. [00:31:02] Speaker 00: And what you've heard in addition [00:31:05] Speaker 00: In addition to having a cell spin problem, we believe that the appellees have a my mail problem. [00:31:10] Speaker 00: And what you heard consistently throughout my friend's discussion is the fact that the claims don't claim what we say that they claim. [00:31:22] Speaker 00: And that's a claim construction issue. [00:31:25] Speaker 00: There is clearly a dispute whether the improvements of user-specific calling and transparent routing are recited in the claim. [00:31:32] Speaker 00: And if we take a look at the claim, [00:31:34] Speaker 00: You can see that our allegations that we said that they were in the claim, there is plausible language here that would support those allegations that it is recited here. [00:31:43] Speaker 00: So looking at claim one. [00:31:45] Speaker 00: So what claim constructions did you ask for? [00:31:48] Speaker 00: Well, Your Honor, I mean, this was dismissed at the Rule 12 stage. [00:31:56] Speaker 00: In our brief, we made a request for claim construction. [00:32:04] Speaker 00: This decision was premature in the absence of claim construction. [00:32:07] Speaker 00: But we didn't turn our opposition to their motion to dismiss into a claim construction brief. [00:32:13] Speaker 01: But the problem is you've got a district court judge who says, well, does it really turn on claims construction? [00:32:18] Speaker 01: You ought to at least give me a couple claims or a couple terms that you want construed. [00:32:24] Speaker 00: And Your Honor, I mean, we think that even on a plain language basis, the claims recite [00:32:32] Speaker 00: the improvements that we alleged in the Third Amendment complaint. [00:32:36] Speaker 00: So for example, in claim one, the limitation locating a caller profile comprising a username, a caller dialing profile comprising a username, and attributes associated with caller, those elements, those limitations are all directed to the user-specific aspect feature of this invention, which allows you to route calls in a user-specific manner, because the routing [00:33:02] Speaker 00: is based on both the number that's dialed and the attributes of the caller. [00:33:10] Speaker 00: So just looking at the plain language, that feature is recited. [00:33:18] Speaker 00: And for the district court to say it's not there, well, we've got a claim construction issue. [00:33:21] Speaker 00: And on top of that, what the case law says, [00:33:24] Speaker 00: What my mail says is that if we allege that the claims cover a certain feature, she either needs to accept our allegation as true or conduct a claim discussion or resolve the dispute. [00:33:37] Speaker 00: And clearly, appellees are disputing that the claim covers this feature. [00:33:41] Speaker 00: And we say that it does. [00:33:42] Speaker 00: That's evident throughout the brief. [00:33:44] Speaker 00: So there needed to be a resolution of that or a construction put there, and there was no construction. [00:33:53] Speaker 00: One other thing that my friend indicated is that about, one other thing that my friend said was that the benefits have not been claimed. [00:34:00] Speaker 00: Well, we know from, again, from self-spend that that is not the test. [00:34:06] Speaker 00: The benefits don't actually need to be in the claim. [00:34:09] Speaker 00: We've alleged the benefit. [00:34:11] Speaker 00: We show, as I just analyzed, we show where that's recited claim. [00:34:15] Speaker 00: But there's no necessary requirement that all the benefits, all the features that this system provides be recited in the claim. [00:34:21] Speaker 00: That's not a proper claim draft. [00:34:29] Speaker 02: You have the last word. [00:34:32] Speaker 00: Yes, Your Honor. [00:34:39] Speaker 00: Just wanted to go back to this notion that my friend raised that the claim is again just about [00:34:50] Speaker 00: And I think one case that's also instructive here is the BASCOM case. [00:34:57] Speaker 00: Because in the BASCOM case, you had the, with respect to inventive concept, you had the recitation of putting a filter at an ISP. [00:35:08] Speaker 00: That was one of the things that was found inventive, non-routine and conventional in BASCOM. [00:35:13] Speaker 00: But in addition in BASCOM, what BASCOM said was inventive was having a filtering tool [00:35:19] Speaker 00: with customizable filtering features specific to each user, verification of registered subscribers, associating individual accounts with their own filtering scheme, versatile so they can be adapted to user preferences. [00:35:30] Speaker 00: That's what we've claimed here. [00:35:32] Speaker 00: And I just went through the limitations that capture that in this claim. [00:35:36] Speaker 00: And that was unconventional, not routine, and not well understood in prior art, as based on my previous discussion. [00:35:44] Speaker 00: So we even think under BASCOM, just further emphasizes here, [00:35:49] Speaker 00: that the allegations in the complaint, which are captured by the claims or at least would be captured by the claims if the court had done a proper claim construction, establish that there's nothing in the record that refutes those allegations or refutes them with clear and convincing evidence to the extent that standard applies. [00:36:04] Speaker 00: And we would ask on that basis that the court reverse the district court's order dismissing this case at the Rule 12 stage. [00:36:11] Speaker 00: Thank you. [00:36:12] Speaker 02: Thank you. [00:36:12] Speaker 02: Thank you both. [00:36:14] Speaker 02: The case is taken under submission.