[00:00:00] Speaker 04:
Our next case for argument is 21-1211, Amaranth versus Olo.

[00:00:10] Speaker 04:
Mr. Weinblatt?

[00:00:15] Speaker 01:
Good morning, Your Honors.

[00:00:16] Speaker 01:
Excuse me.

[00:00:18] Speaker 01:
May it please the court.

[00:00:19] Speaker 01:
The district court incorrectly decided that the asserted claims are directed to, quote, communicating hospitality-related information using a system that is capable of synchronous communications and messaging.

[00:00:31] Speaker 01:
And the district court ruled the specification makes it clear that the claims are not directed to IA systems.

[00:00:36] Speaker 01:
That's at APX 13 and APX 14.

[00:00:40] Speaker 01:
The prosecution history makes clear that all references to synchronous communications, synchronous operations, and information and management

[00:00:48] Speaker 01:
and synchronous communications systems.

[00:00:50] Speaker 04:
OK.

[00:00:50] Speaker 04:
So prosecution disclaimer has to be clear and unmistakable.

[00:00:53] Speaker 04:
So take me to exactly the prosecution history that you believe clearly and unmistakably disavows synchronicity.

[00:01:01] Speaker 01:
If you look at APPX 220 or APPX 585, same page.

[00:01:05] Speaker 04:
I'm sorry.

[00:01:06] Speaker 04:
Roll slower.

[00:01:06] Speaker 04:
Which page?

[00:01:07] Speaker 01:
APPX 220 or APPX 585.

[00:01:10] Speaker 01:
I have both sites because in the district court, when we had the oral hearing,

[00:01:15] Speaker 01:
The stipulation to amend the complaint hadn't been granted yet.

[00:01:19] Speaker 01:
So we weren't sure for this appeal which citations you would prefer.

[00:01:23] Speaker 01:
So I can give you both if that's OK.

[00:01:25] Speaker 04:
OK.

[00:01:25] Speaker 04:
So here's one thing.

[00:01:26] Speaker 04:
I mean, I was working on 585.

[00:01:27] Speaker 04:
That's where my notes are.

[00:01:29] Speaker 04:
Where is the office action that preceded this responsive amendment?

[00:01:33] Speaker 04:
I couldn't find it in here.

[00:01:35] Speaker 04:
Is there an office action in the appendix that preceded it?

[00:01:39] Speaker 01:
It's not in the appendix.

[00:01:41] Speaker 04:
OK, so what was the nature then of the examiner's precise rejection that precipitated, right?

[00:01:47] Speaker 04:
If you're going to say something's a clear and unmistakable disclaimer, and you made a change, don't you think it would be relevant for us to know why the examiner was forcing you to make a change?

[00:01:57] Speaker 04:
From my perspective, that would have been useful.

[00:01:59] Speaker 01:
Well, for a prosecution history disclaimer, there has to be a clear disavowal of claim scope.

[00:02:02] Speaker 01:
And here, you have terms deleted.

[00:02:05] Speaker 04:
What was the nature of the rejection?

[00:02:07] Speaker 04:
Answer my question first, please.

[00:02:09] Speaker 01:
There was a 101 rejection.

[00:02:13] Speaker 01:
There was an indefinite rejection.

[00:02:15] Speaker 01:
And I believe there was also a prior art rejection.

[00:02:18] Speaker 01:
And if you look at APPX 596, you'll see in the remarks, the indefinite rejections are moot without prejudice or acquiescence owing to the present amendments.

[00:02:28] Speaker 01:
So these were substantive moments.

[00:02:29] Speaker 04:
I have to ask you, you're going really fast.

[00:02:31] Speaker 01:
Sorry.

[00:02:31] Speaker 04:
Just slow down in your speech and your reference to pages, because you're already done with the page before I can even turn to it.

[00:02:37] Speaker 04:
So just slow down.

[00:02:38] Speaker 04:
You'll have plenty of time, I promise.

[00:02:39] Speaker 01:
Okay.

[00:02:40] Speaker 01:
In the remarks, there was an indefinite rejection at the top.

[00:02:49] Speaker 01:
Got it.

[00:02:51] Speaker 01:
There were obviousness rejections.

[00:02:59] Speaker 04:
Okay.

[00:03:00] Speaker 01:
And in the remarks, you'll see that these claim amendments were substantive.

[00:03:05] Speaker 01:
They weren't stylistic.

[00:03:07] Speaker 04:
Okay, so would you agree with me that there is nothing in your remarks on the obviousness rejection, a la the prior art rejection, which discusses the synchronization elements?

[00:03:20] Speaker 01:
Because they were removed.

[00:03:22] Speaker 04:
Yes, but you normally argue, you know, we removed something.

[00:03:26] Speaker 04:
This is no longer a limitation.

[00:03:28] Speaker 04:
That's why, normally, when an amendment is made in order to overcome a particular rejection, the remarks discuss how that amendment overcomes that rejection, right?

[00:03:39] Speaker 01:
I don't think that's true in every instance.

[00:03:41] Speaker 01:
In APPX 596, dealing with the indefinite rejection, quote, the claims are now focused on and directed to the intelligent automated assistant aspect of the invention.

[00:03:52] Speaker 01:
And then on the same page, applicant has removed the synchronization term from these claims.

[00:03:58] Speaker 01:
and has added additional limitations to these claims to moot the patent ineligibility rejections.

[00:04:03] Speaker 04:
You're under the patent ineligibility rejection, correct?

[00:04:06] Speaker 01:
But above that, the first quote was above that for the indefiniteness rejection.

[00:04:10] Speaker 04:
And it says the claims are now focused on and directed to intelligent automated assistant aspects of the invention.

[00:04:17] Speaker 04:
Yes.

[00:04:20] Speaker 04:
So you, I'm sorry, and you think that that is about synchronization?

[00:04:28] Speaker 01:
I think taking all of the amendments together.

[00:04:31] Speaker 04:
So the problem is, for a prosecution disclaimer, what you do in the prosecution has to be clear and unmistakable to anyone reading it.

[00:04:40] Speaker 04:
So I don't see how I could read your remarks with regard to the indefiniteness rejection clearly and unmistakably as dictating the synchronization changes that you made.

[00:04:50] Speaker 01:
Well, look at APPX 598.

[00:04:51] Speaker 04:
OK.

[00:04:53] Speaker 01:
Thus, clearly, the claims as newly revised are directed to IAA functionality based upon rules functionality, which improve the communications and overall functionality of the claimed computer system when considered as a whole.

[00:05:06] Speaker 04:
Again, that is ambiguous at best as to what it's saying.

[00:05:10] Speaker 04:
It certainly would not rise to the level of a clear and unmistakable statement.

[00:05:15] Speaker 04:
So, okay, I'll tell you, I'm having trouble finding anything in the remarks

[00:05:22] Speaker 04:
That help you am I missing and is there anything else you want to put me to in the remarks?

[00:05:27] Speaker 01:
Your honor I'm at a loss that when a patent applicant says that claims are directed to a specific feature How the public is not on notice as to what the inventor or the applicant is doing as what the claims are directed to Directed to a specific feature.

[00:05:41] Speaker 04:
What is that specific feature IAA functionality the IAA functionality and how does that necessarily require a lack of synchronous operation

[00:05:51] Speaker 04:
You saying it's directed to IAA functionality is not the same thing as saying it's directed to IAA functionality, which is non-synchronous.

[00:06:01] Speaker 01:
What I am saying is that synchronous has a meaning.

[00:06:08] Speaker 01:
It's found in other claims.

[00:06:10] Speaker 01:
The pre-amended claims use the word synchronous.

[00:06:14] Speaker 01:
It also used the word real time, so although it was wrong to say that real time and synchronous are the same, they can't be.

[00:06:21] Speaker 01:
There's case law that says when you have two terms in the same claim, they don't mean the same thing unless it's clear.

[00:06:28] Speaker 02:
I'm sorry to interrupt, but you said synchronous has a meaning.

[00:06:30] Speaker 02:
What does that mean?

[00:06:41] Speaker 01:
This was construed by Judge Sabrah dealing with the 077 patent, and Ola wasn't part of that case.

[00:06:46] Speaker 02:
And what you're holding in your hand is or is not in the appendix that I can look at?

[00:06:50] Speaker 01:
It is not in the appendix, but it is from a court case.

[00:06:54] Speaker 02:
It's involving this or a family patent?

[00:06:59] Speaker 01:
Yes, it's the related patent.

[00:07:00] Speaker 02:
OK, so read it to me.

[00:07:02] Speaker 02:
I guess I am actually interested.

[00:07:04] Speaker 01:
As to synchronize and synchronous, the court adopts Amaranth and IPDev proposed construction of these terms.

[00:07:11] Speaker 01:
And above it, it's, quote, made or configured to make consistent, end quote.

[00:07:17] Speaker 01:
That's not real time, which is what Olo argued at the district court.

[00:07:22] Speaker 01:
At the end of the oral argument during their rebuttal period, right before it ended, they said that,

[00:07:30] Speaker 01:
real-time can be switched for synchronous and That's not true.

[00:07:36] Speaker 04:
Okay, so I'm sorry.

[00:07:36] Speaker 04:
Can you tell me again what that definition of synchronous was?

[00:07:39] Speaker 01:
I'm just struggling to understand it made or configured to make consistent

[00:07:44] Speaker 04:
consistent.

[00:07:46] Speaker 04:
What does that mean, consistent?

[00:07:48] Speaker 01:
Well, that's something – that's the reason why – one of the reasons why we believe this case needs to be sent back down to the district court.

[00:07:54] Speaker 04:
You didn't ask the district court to construe this term below, so you can't ask me now to send it back for a construction you didn't ask for in the first place.

[00:08:00] Speaker 01:
We also couldn't know that the district court was going to add a term into the directitude that doesn't exist anywhere in the claims.

[00:08:06] Speaker 01:
There is no synchronous term in these claims.

[00:08:08] Speaker 04:
Well, but there is concurrently communicate, right?

[00:08:12] Speaker 01:
So let's think about that.

[00:08:13] Speaker 01:
If you are at a store and a credit card is swiped, that doesn't need to be processed in real time.

[00:08:21] Speaker 01:
The store can wait until the end of the day and do a batch process.

[00:08:24] Speaker 01:
The communication that goes to the credit card company is communicating bidirectionally.

[00:08:31] Speaker 01:
But that's not in real time, because you swiped your card earlier in the day.

[00:08:34] Speaker 02:
It's... I'm sorry.

[00:08:36] Speaker 02:
Wasn't this about putting in your order for food?

[00:08:38] Speaker 02:
At the end of the day, it's not going to help me.

[00:08:41] Speaker 01:
It's not solely about putting your order in for food.

[00:08:45] Speaker 03:
Remember, we're into... Don't the claims continue to say in real time?

[00:08:50] Speaker 01:
They do say in real time, but this is my point.

[00:08:52] Speaker 01:
In real time, it's not the same thing as... It also isn't the same time as the end of the day, right?

[00:08:57] Speaker 03:
Right.

[00:08:57] Speaker 03:
You just said it's not in real... I thought that your example was, see, it's not in real time.

[00:09:02] Speaker 03:
It could be at the end of the day.

[00:09:03] Speaker 01:
Because in real time would be at the time you are swiping your credit card.

[00:09:07] Speaker 01:
It should be done at that time.

[00:09:09] Speaker 01:
That would be real time.

[00:09:10] Speaker 01:
By waiting at the end of the day, that's not real time.

[00:09:11] Speaker 03:
And the claims talk about real time.

[00:09:13] Speaker 01:
The claims talk about real time, but Your Honor... They don't just talk about real time.

[00:09:16] Speaker 04:
They say they communicate bidirectionally in real time.

[00:09:20] Speaker 04:
That means the communication is sent and received and responded to bidirectionally in real time.

[00:09:28] Speaker 01:
That's correct, but that doesn't mean synchronous.

[00:09:30] Speaker 01:
That's communicating back and forth.

[00:09:34] Speaker 04:
In real time.

[00:09:36] Speaker 01:
I understand that.

[00:09:37] Speaker 01:
So, Your Honor, there's a mischaracterization of the claims, and it's the same fault that the district court had.

[00:09:43] Speaker 01:
These claims are system claims that solve a problem.

[00:09:48] Speaker 01:
Remember, we're in 2005.

[00:09:50] Speaker 01:
The iPhone didn't even exist then.

[00:09:52] Speaker 01:
It came out in 2007.

[00:09:53] Speaker 01:
Voice recognition came out in 2008.

[00:09:56] Speaker 01:
And that's found at 8PPX 166 at paragraphs 31 to 33.

[00:10:07] Speaker 01:
Sorry wrong site a ppx 161 at paragraph 22 and a ppx 521 at paragraph 22 at the time Just for my purposes are these claims limited to voice recognition?

[00:10:22] Speaker 02:
It's just typing in your order no yes, so I

[00:10:29] Speaker 01:
At the time, in 2005, computers were not able to understand and process both free and fixed format data and then apply intelligent rules to interpret and respond to that data.

[00:10:40] Speaker 01:
So in 2005, if you were to try to speak into your phone or send a text message.

[00:10:44] Speaker 02:
I just want to get a clearer answer.

[00:10:46] Speaker 02:
I had understood when I was reading the claims, and just tell me if I'm wrong, that one of the things that could satisfy this claim is a device that had

[00:10:57] Speaker 02:
boxes you could check, and then another box in which you could type new information, like typing in a write-in ballot, or in a ballot, right?

[00:11:09] Speaker 02:
You have four named candidates, and then you can write in somebody.

[00:11:14] Speaker 02:
But here, let's even assume you have to do it by typing it in.

[00:11:18] Speaker 02:
Is that covered by this claim?

[00:11:21] Speaker 01:
That alone is not enough to be covered by the claims.

[00:11:23] Speaker 02:
Not alone, with all the other stuff.

[00:11:25] Speaker 02:
You said voice, voice, voice, voice.

[00:11:28] Speaker 02:
You've got to have Siri or something like that.

[00:11:30] Speaker 02:
And I don't see the requirement that the communication here has to be by voice communication, which some computer has to interpret.

[00:11:41] Speaker 01:
Claim 1A has that.

[00:11:49] Speaker 01:
claim one where where does it say it where so we have at least at least one hospitality software back office application with at least one IA based interface and able to execute one or more rules while communicating the free format messaging free format messaging would be something like speech or text message something like or text right exactly well no when I say something like it can be because you have to remember

[00:12:10] Speaker 01:
Prior to that, fixed format meant you're on a website and you have a drop-down that you can select where you're typing in an explicit answer that goes with what they want.

[00:12:18] Speaker 01:
It's not the same as you picking up your phone and saying, I want a reservation tomorrow night at the best seafood restaurant in the area.

[00:12:26] Speaker 01:
That's what these claims allow to happen.

[00:12:28] Speaker 01:
And in 2005, there were implementation problems, and that's in the factual record that was ignored by the district court, that these claims solved.

[00:12:36] Speaker 01:
These are not functional claims.

[00:12:38] Speaker 01:
These claims are hardware.

[00:12:40] Speaker 01:
It is a system.

[00:12:41] Speaker 01:
It's design choice, as shown by Figure 10.

[00:12:43] Speaker 01:
And when one of ordinary skill in the art looks at the specification and sees all 45 examples that inform the person of ordinary skill in the art how to implement the invention with figure 10, they can go out and make it.

[00:12:56] Speaker 04:
The district court held the claims were directed the abstract idea of

[00:13:01] Speaker 04:
communicating hospitality related information using a system that is capable of synchronous communication and messaging.

[00:13:07] Speaker 04:
I understand your concern is how can they say that we deleted the word synchronous throughout prosecution history.

[00:13:14] Speaker 04:
What if instead the abstract idea was communicating hospitality related information using a system that is capable of real-time bi-directional communications and messaging.

[00:13:26] Speaker 01:
you're missing the IAA part of the invention.

[00:13:29] Speaker 01:
If you want to change the directed to, you have to include the IAA aspect.

[00:13:34] Speaker 01:
That is key.

[00:13:35] Speaker 01:
That is what these claims are about.

[00:13:38] Speaker 01:
There is nothing in the record saying that the claims are not about them.

[00:13:41] Speaker 01:
Even an expert did a declaration looking at what the claims are about, and the district court was wrong to toss it, because the district court said, I'm going to look at the object of the invention, which isn't even in the claims, to then say,

[00:13:54] Speaker 01:
This is what the claims are about.

[00:13:56] Speaker 01:
The district court was wrong.

[00:13:57] Speaker 01:
And Your Honor, I don't want to use up all my rebuttal time, so I'd like to reserve it.

[00:14:00] Speaker 04:
OK, sure.

[00:14:03] Speaker 04:
Not a problem, Ms.

[00:14:04] Speaker 04:
Keith.

[00:14:26] Speaker 00:
Good morning, Your Honors.

[00:14:27] Speaker 00:
And may I just say how nice it is to actually see you again instead of just hear you?

[00:14:32] Speaker 00:
Your Honors, I think one of the things that also might be helpful regarding the questions you were asking is to look at the end of the claim.

[00:14:39] Speaker 00:
We were just told that synchronous means consistent, made or configured to make consistent.

[00:14:46] Speaker 04:
If we look at appendix, I'm not sure it does either.

[00:14:50] Speaker 00:
But even, and you and I agree with that, your honor, but I'm just giving you that the claim also still has the notion of consistency in it.

[00:15:00] Speaker 00:
The very last phrase, the wherein clause of the claim talks about the fact that the whole reason you're having this bi-directional real time communication with the back office is so that you can maintain consistency.

[00:15:13] Speaker 00:
with the master database, and that's at appendix 86, column 22, line 26 through 27.

[00:15:20] Speaker 00:
So the concept, even of the notion of synchronous with the definition of maintaining consistency, is still in the claim.

[00:15:31] Speaker 00:
If we look carefully at the file history, appendix 596 that we were just asked to focus on,

[00:15:39] Speaker 00:
What was removed from the claim was just the term synchronization, not the concept, not the notion.

[00:15:48] Speaker 02:
Can you fill in any of the background of the sort that the chief was asking about what the nature of the rejection was that then led to this change with the associated remarks?

[00:16:00] Speaker 00:
Yes, absolutely.

[00:16:01] Speaker 00:
In fact, what had happened was there was a rejection based on 101, 112, and 103.

[00:16:08] Speaker 00:
In the 101 rejection, what the examiner said was, this looks like all it is is synchronizing data.

[00:16:16] Speaker 00:
And so rather than take out the concept, they just took out the word synchronizing and said, OK, you said you didn't like the word synchronize.

[00:16:25] Speaker 00:
I'm taking out the word synchronize.

[00:16:26] Speaker 00:
But that didn't remove what was mandated through the entirety of the specification, which is, I'm trying to mimic how a human takes orders.

[00:16:37] Speaker 00:
for food or takes orders for a reservation, the things that you used to do in pen and paper.

[00:16:42] Speaker 00:
In order to do that, I need to have a system that receives communication saying, I'd like to make a reservation.

[00:16:48] Speaker 00:
There's a back end that has a record of all of the things that are happening.

[00:16:52] Speaker 00:
And in order to make that reservation, you have to know whether or not someone else has already made that reservation.

[00:16:57] Speaker 00:
So there is a requirement that the system be continually updated so that there's consistency between what's being asked for and what's being

[00:17:06] Speaker 03:
And the abstract uses synchronous twice, right?

[00:17:10] Speaker 03:
That's correct.

[00:17:11] Speaker 03:
In the first three lines.

[00:17:13] Speaker 03:
It talks about synchronous communication and then synchronization.

[00:17:17] Speaker 00:
That's correct.

[00:17:19] Speaker 04:
But what was going on there was they just, there is, well, and more than that, there are four objects of the invention.

[00:17:26] Speaker 04:
all four of which require synchronization and specification.

[00:17:30] Speaker 04:
That's correct.

[00:17:30] Speaker 04:
In fact, the one that says a principal object of the present invention.

[00:17:33] Speaker 04:
Our present invention language has consistently been used to say when someone says this is the present invention, or better yet, the principal object of the present invention, that matters.

[00:17:44] Speaker 00:
That's correct, Your Honor.

[00:17:45] Speaker 00:
That says this is an important fact there.

[00:17:49] Speaker 00:
It is a principal object of the present invention for the entirety of the specification, which then goes on

[00:17:56] Speaker 00:
to constantly talk about how you have to make sure you're in synchronization, which, again, makes sense.

[00:18:01] Speaker 00:
Because how can you give away a table that's already been given away?

[00:18:05] Speaker 00:
The whole point of the system is that I am bi-directionally communicating with you in real time so that I'm not giving away a table that's already been reserved by or for someone else.

[00:18:16] Speaker 04:
And we know what about so

[00:18:21] Speaker 04:
Assuming that I was to give meaning to the deleting the word synchronous in the claim at page 585 Couldn't the abstract idea be rewritten to cover exactly the same subject matter by replacing synchronous communication with real-time by bi-directional?

[00:18:39] Speaker 00:
Absolutely your honor and that's actually that's actually also something that I suggested in oral argument below when we heard this for the very first time That there was the first time it was ever raised that somehow removing synchronous had some meaning and I said

[00:18:51] Speaker 00:
You could replace it with real-time now the other option your honor now opposing counsel.

[00:18:56] Speaker 00:
I'm sorry go ahead No, I was just gonna say the other option is if he says synchronous has gone completely you can leave the abstraction to simply be Communicating it doesn't have to be synchronous.

[00:19:07] Speaker 00:
I think that's what we heard today It could be that you do it in the morning Exactly your honor and that's my point fundamentally is that if we remove synchronous from the abstraction now We have a patent that says it's principal object

[00:19:20] Speaker 00:
is to provide information management and communication system.

[00:19:24] Speaker 00:
And that is even more abstract than something that also required some level of real-time or concurrent communication.

[00:19:32] Speaker 00:
Your honor was going to ask me a question.

[00:19:34] Speaker 04:
My next question was going to be, when I rewrote the abstract idea to replace synchronous with real-time bidirectional, which comes straight from the claim, opposing counsel's response was, but that doesn't take into account the IAA system.

[00:19:49] Speaker 04:
Is there something I'm missing?

[00:19:52] Speaker 04:
I don't see some definition for an IAA system in the specification that makes it some sort of particularized piece of hardware or something.

[00:20:05] Speaker 04:
What is the IAA system?

[00:20:08] Speaker 00:
So, Your Honor, it's nothing.

[00:20:10] Speaker 00:
There's nothing in the specification that ever refers to NIAA.

[00:20:14] Speaker 00:
There's actually nothing that refers to intelligent anything.

[00:20:19] Speaker 02:
This may help me.

[00:20:21] Speaker 02:
In the claim construction brief, I think by the plaintiff at 303 of the appendix, is a list of, Amaranth submits that at least the following proposed constructions affect the proper analysis of under 101.

[00:20:39] Speaker 02:
That's correct.

[00:20:41] Speaker 02:
Judge Stark said he's going to accept the claim constructions.

[00:20:44] Speaker 02:
So number two there is a rule capable, intelligent, automated assistance IAA system.

[00:20:53] Speaker 02:
And Amaranth's proposed construction is an integrated framework for a system that enables intelligent choices while executing hospitality tasks in accordance with established rules.

[00:21:07] Speaker 00:
That's correct, Your Honor, and that's the most construction we have.

[00:21:11] Speaker 00:
That is the only proffered construction that you have, and it is the construction that we said could be used and that Judge Stark said that he did use.

[00:21:17] Speaker 00:
And in fact, that definition is in and of itself abstract.

[00:21:22] Speaker 00:
All we have is that it's some framework.

[00:21:24] Speaker 00:
We don't know what it is.

[00:21:25] Speaker 00:
It could be hardware, software.

[00:21:26] Speaker 00:
We don't know.

[00:21:27] Speaker 00:
And it's some form of system that allows intelligent choices.

[00:21:31] Speaker 00:
We don't know what those are or how those are made.

[00:21:33] Speaker 00:
while executing hospitality tasks in accordance with rules.

[00:21:36] Speaker 00:
Well, simply applying rules, according to Your Honor's precedent in Smart Flash and Accenture, is itself also abstract.

[00:21:43] Speaker 00:
So we have a definition that gives nothing more.

[00:21:46] Speaker 00:
Even if it did, there is nothing in the specification that tells one how to accomplish any of that.

[00:21:53] Speaker 00:
The only mention we have in the specification anywhere of an automated assistant is in column 15, this is appendix 83, at lines

[00:22:03] Speaker 00:
11 sorry 9 through 11 and in fact in the file history when they mentioned that they were Focusing on an automated assistant.

[00:22:12] Speaker 00:
This is the only thing they used for support and that's it appendix 596 all we see is To illustrate by way of example the computer might speak hello

[00:22:25] Speaker 00:
This is your automated reservations assistant.

[00:22:28] Speaker 00:
I have a new reservation for you.

[00:22:30] Speaker 00:
The reservation is for Mr. Smith, party of six, for May 1st.

[00:22:35] Speaker 00:
That's it.

[00:22:35] Speaker 00:
That's the only mention anywhere of an automated assistant.

[00:22:39] Speaker 00:
Even if we were to assume and guess.

[00:22:43] Speaker 02:
Just to be clear, this part of it was not, this was in the older, the parent pattern.

[00:22:52] Speaker 00:
No, this was in the continuation in part material.

[00:22:54] Speaker 00:
So everything from column... Oh, I thought the CIP stopped at 14 on 30.

[00:22:59] Speaker 00:
No?

[00:23:00] Speaker 00:
I don't believe so, Your Honor.

[00:23:02] Speaker 00:
I believe it extends all the way, and I may be wrong, but I thought that it extended from the middle of column 13 through the bottom of column 18.

[00:23:10] Speaker 02:
Oh, yes.

[00:23:11] Speaker 02:
I'm sorry, you're right.

[00:23:13] Speaker 00:
Yes, sorry.

[00:23:13] Speaker 00:
So no, this is in the new material, but of course we have nothing to say

[00:23:17] Speaker 00:
anything about that the rest of the new material are merely examples of what might happen you might use push buttons you might say press one you might say say one you might put in a rule that says don't call me if it's between nine and five with my reservation text me instead and that's all we have here we have no explanation of how this is to be accomplished even if it were in the claims which it's not the specification doesn't give us any more detail it just says it might be nice to have

[00:23:46] Speaker 00:
Automated assistant well that's also the height of it of abstraction I would love to have an automated assistant on occasion But just saying I would like to have one doesn't mean that I've invented it or told anyone about it We're taking it out of the realm of the abstract If your honors have no other questions, I believe that this is nothing more than trying to do But people did forever on pen and paper Using messaging and I think your honor's suggestion to you

[00:24:15] Speaker 00:
replace with real-time Chief Judge Moore or your honor Judge Toronto's suggestion of potentially taking it out completely would be the right way to deal with this and it would leave it not only abstract but potentially more abstract than it already is.

[00:24:30] Speaker 04:
Thank you, Ms.

[00:24:30] Speaker 04:
Keefe.

[00:24:31] Speaker 00:
Thank you, your honor.

[00:24:31] Speaker 00:
I appreciate the time and attention.

[00:24:54] Speaker 01:
Your Honor, we're at the motion to dismiss stage.

[00:24:57] Speaker 01:
Amaranth's constructions were supposed to be adopted and applied.

[00:25:00] Speaker 01:
They weren't.

[00:25:01] Speaker 01:
Judge Toronto, you picked up on that.

[00:25:02] Speaker 01:
Amaranth proposed a construction for a rule-capable, intelligent, automated assistance system.

[00:25:07] Speaker 01:
Had that had been applied, that's what the claims would have been directed to.

[00:25:11] Speaker 01:
Just like Judge Prost, as you recall in the earlier case with Domino's, the preamble of the 077 claims that were being considered were used to determine what the claims were directed to.

[00:25:20] Speaker 01:
That didn't happen here.

[00:25:22] Speaker 01:
That IAA system matters.

[00:25:23] Speaker 01:
Now, even if you were to find that the asserted claims are directed to an abstract idea, they survive step two.

[00:25:30] Speaker 01:
Even Olo acknowledges in the response reform, page 21, that the results of the claim system have IAA functionalities.

[00:25:38] Speaker 01:
And it says that it's capable of doing the features that we've been saying that it's doing.

[00:25:43] Speaker 01:
So if the result is able to do the features, that means the HAL is present.

[00:25:47] Speaker 01:
Figure 10 is the design system architecture.

[00:25:52] Speaker 01:
It's design choice.

[00:25:53] Speaker 01:
And the specification, when it refers to hardware being typically known, refers to workstations and servers.

[00:26:00] Speaker 01:
It does not refer to IAA interfaces that accept free format data or interfaces that accept fixed format data and mobile handsets as being typical hardware.

[00:26:12] Speaker 01:
Because in 2005, they weren't.

[00:26:15] Speaker 04:
But your specification doesn't define any IAA hardware anywhere.

[00:26:21] Speaker 04:
that that is the step to innovative aspect when the spec doesn't define it as either hardware or software or at all.

[00:26:30] Speaker 01:
Well, Your Honor, with all due respect, the one of ordinary skill in the art, it does.

[00:26:34] Speaker 01:
You're talking about a question of fact.

[00:26:36] Speaker 01:
Patents are written for those of ordinary skill in the art.

[00:26:39] Speaker 01:
They're not written for laypeople, judges, or attorneys.

[00:26:43] Speaker 04:
Did you provide an expert?

[00:26:44] Speaker 04:
We sometimes see, in response to these motion dismisses, an expert witness that will say, did you provide any evidence of what you're... Oh, yes, we did.

[00:26:53] Speaker 01:
If you look at exhibit C to the complaint,

[00:26:57] Speaker 01:
Sorry, not Exhibit C. Exhibit B to the complaint is an expert declaration of Dr. Valerian that goes... Show me where that is in the appendix just so I know.

[00:27:05] Speaker 01:
Let me get to it.

[00:27:14] Speaker 04:
Complaints on 93 so is the exhibit attached there after so well do you want to use the first complaint or the?

[00:27:20] Speaker 01:
I don't know whatever whatever if you're in the here in the volume one, but we're them in the complaint Whatever complaint has the expert thing that they both do well wherever you want me to look you direct me, okay, so it starts at a Ppx 154

[00:27:46] Speaker 01:
He has summary of opinions on APPX 158.

[00:27:48] Speaker 01:
He defines the level of ordinary skill in the art, the APPX 159.

[00:27:53] Speaker 01:
He then goes over the background of the state of the art to say what the problems were at the time.

[00:27:58] Speaker 01:
He even cites where he got the information from, which is evidence.

[00:28:01] Speaker 01:
None of this is contested.

[00:28:04] Speaker 01:
He then goes into detail as to the 651 patent, starting with APPX 163.

[00:28:11] Speaker 01:
He then discusses how it improved the functionality

[00:28:15] Speaker 04:
I'm sorry where is the specific thing that you told me was in here, which is how?

[00:28:22] Speaker 01:
Maybe it's the IAA is innovative or something like that such that it okay, so you have a ppx 166 at paragraph 32 That that's one of them a ppx

[00:28:49] Speaker 01:
169 at paragraph 39.

[00:28:51] Speaker 01:
APPS 165 to 168 at paragraph 30 to 38.

[00:29:00] Speaker 01:
APPS 172 to 174 at paragraphs 43 to 49.

[00:29:07] Speaker 01:
As for the attorney argument that the specification of the claims don't say how to implement it that contradicts what one of ordinary skill in the art says that a ppx 169 at paragraphs 39 and 40 if you look at a ppx 169 a paragraph 40 there is a detailed Table that shows

[00:29:27] Speaker 01:
Specification sites, claim language, and where he would look to be able to go out and implement the system.

[00:29:34] Speaker 01:
Because as one of ordinary skill in the art has declared under oath, the claims provide a roadmap for how to build this.

[00:29:44] Speaker 01:
So you have to look at what one of ordinary skill in the art says, not attorney argument, or at the rule 12 stage, this was unrebited.

[00:29:52] Speaker 01:
And it should have been viewed in the light most favorable to Amaranth, and it wasn't.

[00:29:55] Speaker 01:
The district court should be reversed or at a minimum vacated and sent back down so the factual record could be analyzed and you can actually have an opinion that looks at the facts instead of trying to pigeonhole the claims into a previously decided opinion.

[00:30:08] Speaker 04:
So Mr. Weinblatt, I've done a bad job as the presiding judge.

[00:30:11] Speaker 04:
I allowed you to go into your step two analysis and Ms.

[00:30:14] Speaker 04:
Keefe doesn't get to respond.

[00:30:16] Speaker 04:
You didn't raise it in your opening argument, so I should have cut you off and not allowed you to raise it in your closing.

[00:30:21] Speaker 04:
So that's on me.

[00:30:23] Speaker 04:
Ms.

[00:30:23] Speaker 04:
Keefe, you'll just have to trust that we can try and figure it out on our own.

[00:30:25] Speaker 04:
Sorry.

[00:30:26] Speaker 04:
I apologize for allowing him to speak on an issue you don't get to respond to.

[00:30:30] Speaker 01:
Your Honor, I did mention in my opening, you can go back, that I did say that it's a framework and it's a design, which is outside of step one.

[00:30:37] Speaker 04:
That is step two.

[00:30:39] Speaker 04:
Maybe you did.

[00:30:39] Speaker 04:
I don't recall.

[00:30:40] Speaker 04:
Thank you.

[00:30:41] Speaker 04:
This case is taken under submission.

[00:30:43] Speaker 01:
Thank you, Your Honors.