[00:00:00] Speaker 01: The second case is Cardionet and Bremer, manufacturing versus Infobionic, Incorporated, 2020, 2123, and 2150. [00:00:12] Speaker 01: Mr. DeCosta. [00:00:15] Speaker 03: Good morning. [00:00:24] Speaker 03: May it please the court? [00:00:25] Speaker 03: Frank DeCosta for Cardionet. [00:00:28] Speaker 01: So we're here because the court... You don't need your mask as far as we're concerned. [00:00:33] Speaker 03: I appreciate that, Your Honor. [00:00:38] Speaker 03: We're here because the court granted summary judgment against CardioNet. [00:00:43] Speaker 03: And that summary judgment ruling was predicated on a sanction that precluded evidence of infringement. [00:00:49] Speaker 04: That's not quite true. [00:00:51] Speaker 04: There was an alternative ground that was not infringement. [00:00:54] Speaker 03: There was, Your Honor. [00:00:55] Speaker 03: So there was a review of the merits that I'll get to. [00:00:59] Speaker 03: But the impetus for the decision was first precluding the evidence that was available estimate. [00:01:06] Speaker 04: That's one ground, but it is not the sole ground. [00:01:09] Speaker 03: Correct. [00:01:10] Speaker 03: OK. [00:01:11] Speaker 03: Correct. [00:01:11] Speaker 03: We don't disagree with that. [00:01:12] Speaker 02: And I'm not sure I agree with your characterization of the sanction. [00:01:19] Speaker 02: The sanction was that you couldn't rely on the new infringement theories. [00:01:24] Speaker 02: And the result may have been that in the absence of those new infringement theories, that you didn't have a case. [00:01:31] Speaker 02: But the judge didn't say you can't allege infringement. [00:01:35] Speaker 02: She said you can't rely on these new infringement contentions, right? [00:01:40] Speaker 03: But that goes to the question about the merits. [00:01:42] Speaker 03: So when the judge got to the merits, [00:01:45] Speaker 03: The court said, with respect to the predetermined criteria and the selector, you can't establish infringement without this evidence. [00:01:54] Speaker 03: Therefore, we're granting summary judgment. [00:01:56] Speaker 03: So the two go hand in hand. [00:01:58] Speaker 04: You're right, Your Honor. [00:01:59] Speaker 04: But they're all attorneys, right? [00:02:01] Speaker 04: Correct. [00:02:02] Speaker 03: OK. [00:02:02] Speaker 03: Correct. [00:02:03] Speaker 02: One of the things that bothers me the most here is that there was an opportunity to seek leave of court to amend your infringement contingents even late. [00:02:13] Speaker 02: And you didn't do that. [00:02:14] Speaker 02: I don't understand what happened. [00:02:16] Speaker 03: Well, looking at the record, Your Honor, the way we interpret what happened in terms of the timeline is that, think about it from the perspective of Cardionet, thinking that it had complied with the rule. [00:02:27] Speaker 03: It disclosed what claims were at issue, disclosed what products were at use, it disclosed the type of infringement, literal or doctor equivalent. [00:02:34] Speaker 03: So there was no clock going off in the head of Cardionet the way the judge would have expected in her summary judgment ruling. [00:02:42] Speaker 03: So with the continuing discovery, with claim construction, moving to expert reports, the record seems to indicate that Cardionet was comfortable moving forward with submitting its contentions in detail. [00:02:57] Speaker 02: What about the chart in the local rules, though, that explains the kind of information that you need to have in infringement contentions? [00:03:05] Speaker 02: I mean, everybody knows what infringement contentions are. [00:03:08] Speaker 02: You have to say how they practice [00:03:12] Speaker 02: all the elements of the claim? [00:03:14] Speaker 02: I mean, how can you not understand that? [00:03:17] Speaker 03: That's an important question, Your Honor, and it's central to the case. [00:03:19] Speaker 03: So I hope the Court understands that if you look at the standard rule as it existed, it required four things. [00:03:29] Speaker 03: One is identifying the claims, just which claims are being asserted. [00:03:34] Speaker 03: The second thing it required is the products, the products accused of infringement. [00:03:39] Speaker 03: The third thing that was required is the type of infringement. [00:03:43] Speaker 03: It's not what you're thinking about, the why. [00:03:45] Speaker 03: It's literally literal infringement or doctrine of law. [00:03:48] Speaker 02: Well, you say that, but when you go to the local rules, there's a chart that says you could use it in this form. [00:03:54] Speaker 02: You can put it in chart form, but these are the things. [00:03:56] Speaker 02: It says claim limitation, accused component, basis of infringement contention. [00:04:01] Speaker 02: That is a lot of detail. [00:04:04] Speaker 02: You never provided that. [00:04:05] Speaker 02: And in fact, you even said, we don't know whether they practiced these limitations. [00:04:10] Speaker 03: Well, we disagree with the statement that we said we didn't know. [00:04:15] Speaker 03: I know if you read the court's order, it looks like that's all we said was a disclaimer that we're not sure at this point. [00:04:21] Speaker 03: But that's not exactly what was there. [00:04:24] Speaker 03: There was a statement that said, we [00:04:29] Speaker 03: I don't want to paraphrase the statement. [00:04:30] Speaker 03: But essentially, it made a statement that we're expecting more information. [00:04:34] Speaker 03: If we get it, we'll update. [00:04:35] Speaker 03: But that update was with respect to what the rule was required, claims, type of infringement, and properties. [00:04:41] Speaker 02: Again, you're saying that this chart that explains the kind of detail you're supposed to have is irrelevant? [00:04:47] Speaker 03: It's not irrelevant. [00:04:49] Speaker 03: But it's not dispositive, the issue, because what Cardionet did provide satisfied the requirements of the rule. [00:04:57] Speaker 02: What do you understand? [00:04:58] Speaker 02: Is there a common understanding of what infringement contentions are? [00:05:03] Speaker 03: Here's why the answer is no. [00:05:06] Speaker 03: Because if you look at the cases cited by both sides, O2 Micro, the Boston University case, the Palomar case, what you learn from those cases is that in the O2 Micro case, there actually was a requirement. [00:05:18] Speaker 03: It was the NDECAL local rules. [00:05:20] Speaker 03: There is a requirement in that rule to provide the how infringement contentions, so that detail. [00:05:25] Speaker 03: If you look at the BU case, Boston University case, the judge in that case said, we have the ability to require more, but our rule does not. [00:05:35] Speaker 03: Subsequently, the rule has been amended, so it now requires the additional detail. [00:05:39] Speaker 03: But at that time, it did not. [00:05:41] Speaker 04: Where is this chart that you referred to? [00:05:44] Speaker 03: Yeah, the chart is at PANIX 945. [00:05:53] Speaker 03: And what you'll see is, to Judge Malle's point, we provided much more than just the literal response to the rules requirements. [00:06:05] Speaker 03: We actually did provide detail that includes pointing to elements within the accused product that satisfy the claim elements. [00:06:15] Speaker 03: We actually did provide that. [00:06:16] Speaker 04: Now... Wait, I'm sorry. [00:06:18] Speaker 04: 945. [00:06:19] Speaker 04: What I have is that this... [00:06:21] Speaker 04: Is it supplemental preliminary infringement? [00:06:24] Speaker 03: Right. [00:06:24] Speaker 03: Now go forward. [00:06:26] Speaker 04: Maybe I misunderstood what she was saying. [00:06:28] Speaker 04: I thought there was a suggestion that there was a sample template chart provided by the district court. [00:06:34] Speaker 02: It's on page two of the local rules. [00:06:37] Speaker 02: I don't know where it is in the appendix. [00:06:41] Speaker 03: But the chart that I'm referring to, Your Honor, is in yellow. [00:06:45] Speaker 04: I understand your chart when Judge O'Malley is pointing to a chart that's supplied together with the local rules. [00:06:52] Speaker 04: I don't recall if that chart was mentioned in the brief. [00:06:56] Speaker 04: And what did the local rules say about the chart, and what does the chart say? [00:07:03] Speaker 03: The information that we're referring to literally is the four things now. [00:07:08] Speaker 03: So it's the claims. [00:07:11] Speaker 04: So but what does the chart say? [00:07:13] Speaker 04: I'm tampered. [00:07:14] Speaker 04: I'm sorry. [00:07:15] Speaker 04: The chart's not in the appendix. [00:07:17] Speaker 04: Are you familiar with what the local rule says about the chart? [00:07:21] Speaker 02: I mean, the briefs cite to the local rules. [00:07:25] Speaker 02: So you know what the local rules say, right? [00:07:27] Speaker 03: We do. [00:07:28] Speaker 03: And I've recited it to you. [00:07:29] Speaker 03: So if we want the section of local rules. [00:07:31] Speaker 02: You cited the first part of the local rules. [00:07:44] Speaker 03: So the rule is that appendix 887. [00:07:47] Speaker 03: 887? [00:07:48] Speaker 03: 887, correct. [00:07:59] Speaker 04: But that doesn't have it short. [00:08:05] Speaker 04: I don't want to take up all your time with this, but I'm confused. [00:08:09] Speaker 04: Unlike Judge O'Malley, I didn't actually go look at the logo on the line. [00:08:17] Speaker 03: So what we'd like credit for at Recognition is not only do we comply with the categories of information that the role identifies, but we also did provide a charted reference to specific text from Cardionet's documents and where Cardionet thought the infringing features were. [00:08:46] Speaker 04: We're running out of time unless I'm interrupting Judge O'Malley. [00:08:50] Speaker 04: But your theory of infringement here is that this selectivity requirement is satisfied by a doctor ordering a second set of data from the two-way filter. [00:09:05] Speaker 04: Is that the point? [00:09:06] Speaker 03: I'm sorry, Your Honor. [00:09:07] Speaker 03: I couldn't. [00:09:08] Speaker 04: Is your theory of infringement that the selectivity requirement is satisfied when the doctor orders a second run of data from the T-Wave filter? [00:09:21] Speaker 03: No, so there are two things. [00:09:24] Speaker 03: There's the predetermined criteria and the selector. [00:09:27] Speaker 03: Now, with respect to the doctor's involvement or the operator's involvement, the operator has the ability to identify whether or not they're abnormally tall T waves in the EKG. [00:09:37] Speaker 03: And if so, activate. [00:09:40] Speaker 04: But it seems accepted that the accused product [00:09:43] Speaker 04: The T wave filter is on. [00:09:45] Speaker 04: It's never turned off. [00:09:47] Speaker 04: There's not an ability to select one stream or another stream. [00:09:53] Speaker 04: And so my understanding, and you can correct me if I'm mistaken about this, is that your theory of infringement was that the selectivity criterion limitation was established by the fact that a doctor could ask that the [00:10:12] Speaker 04: thing be rerun. [00:10:16] Speaker 04: I saw that in your infringement contentious. [00:10:18] Speaker 04: Isn't that correct? [00:10:21] Speaker 03: Not exactly. [00:10:21] Speaker 03: I think you're confusing or confusing the criteria and the selector. [00:10:30] Speaker 02: But your expert report specifically turns, your expert turns his conclusions with respect to infringement on the actions of the doctor. [00:10:41] Speaker 03: Yes, thank you. [00:10:42] Speaker 03: So the issue there is the structure that's claimed responds to a message. [00:10:50] Speaker 03: But the claim is agnostic as to where that message comes from. [00:10:54] Speaker 04: So what is the doctor doing that causes infringement? [00:11:00] Speaker 03: The doctor is, in one case, generating a message that triggers the structure in the claims. [00:11:08] Speaker 04: By having it done twice. [00:11:11] Speaker 03: So for example, Your Honor, if you look at claim 11, we have a communication interface, a real-time QRS detector, a frequency domain TWA filter, and a selector that activates the TWA filter with respect to the real-time QRS detector in response to a message. [00:11:31] Speaker 03: So to answer the court's question, the structure responds to a message. [00:11:36] Speaker 03: The claim does not adopt a response to the message. [00:11:39] Speaker 03: No, actually, the device. [00:11:41] Speaker 03: The device of claim 11 responds to the message, not the doctor. [00:11:44] Speaker 03: So that's an important point. [00:11:45] Speaker 02: Wait, it says, your expert says he explained that the MOMI system permits physicians and clinicians to send start new session messages based on their review and analysis of T-waves in previous sessions. [00:11:57] Speaker 03: That's correct. [00:11:59] Speaker 02: And so it's the doctor in your expert's view that is activating. [00:12:05] Speaker 03: That's sending the message. [00:12:07] Speaker 03: But that doesn't mean that the doctor is integral to practicing the claim. [00:12:11] Speaker 03: So the doctor sends a message, and then the structure that's claimed responds to the message. [00:12:17] Speaker 04: OK, but the doctor is the one who's selecting, right? [00:12:23] Speaker 03: The message, in turn, causes the selection. [00:12:26] Speaker 03: That's correct. [00:12:29] Speaker 01: But that's important. [00:12:30] Speaker 01: Counsel, you're well into your rebuttal time if you wish to save it. [00:12:33] Speaker 03: I will just make one summary of the merits that there were a couple of issues with respect to the merits evaluation. [00:12:45] Speaker 03: court read into claim one, a select requirement. [00:12:48] Speaker 03: It doesn't exist in claim one. [00:12:49] Speaker 03: Also, the judge concluded that the predetermined criteria can't be met because of the operator's involvement, which is not true. [00:12:58] Speaker 03: The operator is initiating a message. [00:13:00] Speaker 03: The structure was responding to it. [00:13:02] Speaker 03: So those two things are not inconsistent. [00:13:04] Speaker 03: And then the last is that the court applied a different claim construction for the [00:13:13] Speaker 03: the activate limitation than what was applied, than what was issued in the Markman stage. [00:13:18] Speaker 03: So Markman, the judge said, we're going to give [00:13:22] Speaker 03: activated, it's plain and ordinary meaning, so that we don't exclude the always on embodiment. [00:13:27] Speaker 03: And when the court got to the evaluation of the merits, the court said, you can't prove infringement because the device is always on. [00:13:33] Speaker 03: So it's not activated. [00:13:35] Speaker 03: So that's inconsistent. [00:13:36] Speaker 03: But merits ruling is predicated in a ruling that's inconsistent with the claim structure. [00:13:42] Speaker 03: So I'll stop there and save time for a bug. [00:14:08] Speaker 00: Good morning. [00:14:09] Speaker 00: May it please the court? [00:14:11] Speaker 00: The district court's decision to be affirmed because the district court properly exercised its broad discretion to exclude the untimely infringement contentions that Cardionet put forth two and a half years too late in an expert report while never seeking leave of court. [00:14:30] Speaker 00: and because the district court properly ruled on the merits. [00:14:34] Speaker 04: So what is this sample claim chart that's attached to local rules? [00:14:40] Speaker 04: I didn't see reference to that in the brief. [00:14:43] Speaker 04: Is that referred to in the brief? [00:14:45] Speaker 00: Your Honor, their local rules are referenced in the brief. [00:14:47] Speaker 00: But not the chart. [00:14:48] Speaker 00: The chart itself is part of local rules. [00:14:50] Speaker 00: But it's not specifically referenced in the briefs. [00:14:53] Speaker 04: What does the chart say? [00:14:55] Speaker 00: The chart, and I have copies I'd be happy to provide, says, [00:14:59] Speaker 04: Could we get a copy? [00:15:02] Speaker 00: I have one. [00:15:07] Speaker 01: Please hand it to the Court of Appeals. [00:15:18] Speaker 00: The chart, and it's on page two when you receive it. [00:15:23] Speaker 02: While you're waiting for them to get the chart, can I ask you a preliminary question? [00:15:27] Speaker 02: Sure. [00:15:30] Speaker 02: I'm just trying to make sure there's jurisdiction over this appeal. [00:15:34] Speaker 02: When the operative amended complaint was asserted, you asserted affirmative defenses but did not include a counterclaim. [00:15:43] Speaker 00: That's exactly right, Your Honor. [00:15:45] Speaker 00: And that's why there is jurisdiction over this. [00:15:46] Speaker 02: OK, so you all abandoned those counterclaims. [00:15:50] Speaker 00: They were never played. [00:15:52] Speaker 00: We only asserted affirmative defenses. [00:15:53] Speaker 02: Well, I mean, there's case law all over the place from different jurisdictions about whether [00:15:59] Speaker 02: You have to re-plead your counterclaims to maintain them. [00:16:02] Speaker 02: It would seem to me you should. [00:16:04] Speaker 02: And so I just wanted to make sure you intended not to re-plead your counterclaims, and you're not arguing that they still are standing. [00:16:10] Speaker 00: That's correct. [00:16:11] Speaker 00: We're only relying on affirmative defense. [00:16:13] Speaker 00: That makes it easy. [00:16:14] Speaker 04: So if you were to prevail, hypothetically, on infringement, we wouldn't need to reach the invalidity issue. [00:16:22] Speaker 00: That's exactly correct, Your Honor. [00:16:23] Speaker 00: OK. [00:16:24] Speaker 00: And to get to Judge Dyke, your question about the chart, it's on page two of the contentions at the bottom. [00:16:32] Speaker 00: What the plaintiff is supposed to provide, the patentee, is a chart that has three things, claim limitation, accused component, and basis of, excuse me, it's on page one, accused component and basis of infringement contention. [00:16:50] Speaker 02: I'm guessing that your friend on the other side will say, well, it says you may use this chart. [00:16:55] Speaker 02: What do we make of that? [00:16:56] Speaker 00: Your Honor, the parties fully understood and decided to use these charts. [00:17:01] Speaker 00: We received 300 pages, just about, of charts from CardioNet for six patents. [00:17:07] Speaker 00: For four of those patents, there was no issue. [00:17:11] Speaker 00: For two of those patents, CardioNet included footnotes for the key claim limitations. [00:17:15] Speaker 00: And that includes the 715 patent. [00:17:17] Speaker 00: saying that the evidence did not preclude practice of the limitations. [00:17:23] Speaker 00: CardioNet could identify no affirmative evidence that they were practiced, and said their contentions will be updated. [00:17:29] Speaker 04: Okay, but wait a second. [00:17:31] Speaker 04: If this chart was so significant, if they asked the local rules, how come you didn't mention it in the brief? [00:17:36] Speaker 04: You know, it was, I mean, it seems a little odd that we would say, oh, the chart explains what's required by the local rules, and you didn't even mention it in the brief. [00:17:45] Speaker 04: How's that? [00:17:46] Speaker 00: Your Honor, this tortured construction of the local... No, no, you're not answering my question. [00:17:53] Speaker 04: If the chart is significant, how come you didn't mention it in the brief? [00:17:57] Speaker 00: We mentioned the local rules and the charts were provided. [00:18:00] Speaker 00: We had charts from Cartier Net. [00:18:02] Speaker 00: There was no question between the parties that charts needed to be provided. [00:18:06] Speaker 00: We had 300 pages of them. [00:18:07] Speaker 04: So in your view, you don't get anything out of the chart that's not in the text of the local rule on which you did rely? [00:18:14] Speaker 00: Your Honor, we believe the text that's copied into the scheduling order is sufficient. [00:18:18] Speaker 00: Yes. [00:18:19] Speaker 00: Because the text includes the requirement to identify the documents on which the infringement contention is based. [00:18:26] Speaker 00: And Cardionet did not do that for the predetermined characteristic, predetermined criteria, and selector limitations. [00:18:35] Speaker 00: The documents that their expert relied on two and a half years later for the predetermined characteristic and predetermined criteria was medical literature, completely absent from their charts. [00:18:48] Speaker 04: Well, what their charts did is not necessarily an interpretation of the local rule. [00:18:54] Speaker 04: The local rule on its face doesn't say here to Alaska, [00:19:01] Speaker 04: There's infringement here. [00:19:03] Speaker 04: It's more limited than that. [00:19:04] Speaker 04: Put the charge aside. [00:19:06] Speaker 00: But it does require any supporting documents to be identified. [00:19:12] Speaker 00: It does require that. [00:19:13] Speaker 00: And CardioNet, even according to their view of the local rule, did not do that. [00:19:18] Speaker 00: They did not identify the documents that support their contention that there's a predetermined characteristic, predetermined criteria, and selector in the system. [00:19:27] Speaker 00: They only identified medical literature for the first time as being the source of the predetermined characteristic or predetermined criteria in the expert report. [00:19:37] Speaker 00: And for the selector, they only identified the document, the source code ECGProcessHandler.cs, that source code component, for the very first time in the expert report. [00:19:50] Speaker 00: that source code or any document disclosing that source code is nowhere identified in their contentions. [00:19:56] Speaker 00: In fact, the only thing that they can point to is a diagram for the overall software structure that's not even included for the selector limitation. [00:20:05] Speaker 00: They knew that they couldn't identify any evidence for those limitations, and that's why they dropped the footnote saying the evidence does not preclude practice of the contentions. [00:20:16] Speaker 00: not identifying any affirmative evidence and saying the contentions will be updated. [00:20:22] Speaker 00: And we wrote them. [00:20:23] Speaker 00: We wrote them multiple times saying that they did not have a rule 11 basis to proceed. [00:20:27] Speaker 04: Could you turn to the merits of the infringement issue? [00:20:30] Speaker 00: Yes. [00:20:31] Speaker 00: I'd be happy to, Judge Steig. [00:20:33] Speaker 00: And it is the doctor here, to your question earlier, who is performing the alleged infringement. [00:20:44] Speaker 00: The system, the infobionic system, [00:20:47] Speaker 00: All data comes in and goes through the alleged TUA filter every time. [00:20:55] Speaker 00: The system has no selectivity. [00:20:58] Speaker 00: You simply turn the system on and that is what it does. [00:21:01] Speaker 00: It does that every time you turn the system on. [00:21:04] Speaker 00: And as your question went to earlier, their infringement theory is that turning on the system a second time after the doctor has perhaps recognized something in his or her mind is an act of infringement. [00:21:18] Speaker 00: And that cannot be squared with any of the claims. [00:21:22] Speaker 00: Both claims 11 and 20 require a selector, and claim 1 requires selectivity in a method claim by requiring an activating step in response to a message based at least in part on a predetermined characteristic. [00:21:38] Speaker 00: The system does not do that. [00:21:40] Speaker 02: Was there any construction of selector or selectivity? [00:21:44] Speaker 00: There was no construction of selector below, Your Honor. [00:21:48] Speaker 00: The plain and ordinary meaning was applied at the summary judgment stage. [00:21:52] Speaker 00: And that's part of the prejudice that we suffered, because we could have disposed of this case earlier if we had known that Cardionet was going to take the position that a selector is simply a data component that passes all valid data, all the time, every time. [00:22:09] Speaker 00: and has no selectivity whatsoever. [00:22:13] Speaker 02: What about the quality checks worst code? [00:22:16] Speaker 00: This is the ECG process handler.cs. [00:22:21] Speaker 00: What it does is it passes all valid data all the time. [00:22:26] Speaker 00: If the data is obviously bad, then it does not pass along for the heart rate analysis. [00:22:31] Speaker 00: But the heart rate analysis occurs with the alleged T-way filter every single time in exactly the same way. [00:22:38] Speaker 00: There is no ability in the system to make it happen otherwise. [00:22:42] Speaker 00: And that is why there is no selectivity in the system. [00:22:46] Speaker 00: And there cannot be infringement as a matter of law. [00:22:50] Speaker 01: Counsel, with the passing of the tape is back and forth, I missed something that was said. [00:22:56] Speaker 01: And are you not pursuing your cross-appeal on the 101 question? [00:23:05] Speaker 00: because we're we are absolutely pursuing our cross-appeal the court does not to be clear the court does not need to reach the cross-appeal at the court firms are the judgment of the district court only if the court were on too [00:23:21] Speaker 00: decide that it could not affirm that judgment, which we submit. [00:23:24] Speaker 00: The court doesn't need to go there. [00:23:25] Speaker 00: Then the crossfield becomes relevant. [00:23:27] Speaker 00: Then the court would need to reach the 101 issue. [00:23:30] Speaker 02: But you're saying that the 101 issue is framed for us as an affirmative defense. [00:23:36] Speaker 00: Exactly. [00:23:38] Speaker 04: You might spend a minute addressing the crossfield. [00:23:43] Speaker 00: I'd be happy to, Your Honor. [00:23:45] Speaker 00: These claims are invalid under Section 101 because [00:23:51] Speaker 00: It is simply applying the abstract idea of filtering data when necessary to obtain an accurate heartbeat count. [00:24:01] Speaker 00: And these claims at step two add nothing that is even arguably invented. [00:24:08] Speaker 02: What's your distinction from between the last CardioNet case that we had where we did not say that it was ineligible and this one? [00:24:18] Speaker 00: In the last Cardionet case, the issue that the court found no evidence on at the pleading stage was whether the claims, in fact, reflected human activity that had been practiced. [00:24:32] Speaker 00: That is not an issue on this field. [00:24:34] Speaker 00: That has been admitted by Cardionet below. [00:24:37] Speaker 00: Cardionet admitted, and I will give the appendix sites, at appendix 9000, page 47 of the transcript, lines 8 to 11. [00:24:48] Speaker 00: admitted that the physician can do this. [00:24:50] Speaker 00: The physician may be able to look and figure out there's a problem and not look at the T waves as R waves. [00:24:55] Speaker 00: The physician can simply ignore them. [00:24:57] Speaker 00: Cardionet said that also at appendix 8998, page 45, line 17 to 24. [00:25:04] Speaker 00: There is no issue here that these claims simply automate what humans have long done. [00:25:10] Speaker 00: The way doctors traditionally would ignore the T wave is they would get a heart rate count that was twice as high, because it was counting both T waves and R waves, and they would divide by two. [00:25:20] Speaker 00: And they would what? [00:25:21] Speaker 00: Divide by two. [00:25:22] Speaker ?: OK. [00:25:22] Speaker 04: There's a suggestion here that the T wave filter claimed in this patent is somehow a custom T wave filter. [00:25:32] Speaker 04: What's your response to that? [00:25:34] Speaker 00: My response to that is the specification admits that's not the case. [00:25:37] Speaker 00: The specification admits that you can do this as a frequency filter. [00:25:42] Speaker 00: It's a frequency domain T wave filter. [00:25:44] Speaker 00: that is simply embodied in a mathematical construct using a Fourier transform. [00:25:52] Speaker 00: And that was admitted also in the briefing. [00:25:55] Speaker 00: And I will get the site for that. [00:26:01] Speaker 00: That is at Yellowbrief 39, note 9, where Cardionet admitted that this T-Wave filter can be implemented using Fourier transforms. [00:26:12] Speaker 00: It is simply a mathematical algorithm that the specification admits can be implemented on a general purpose computer. [00:26:21] Speaker 00: It is no more a machine than the computer was a machine analysis. [00:26:25] Speaker 01: The district judge almost agreed with you on 101. [00:26:30] Speaker 01: She found the claims abstract, but having an inventive step. [00:26:37] Speaker 01: And then later on she said, well, maybe, I'm not sure I was right on that. [00:26:42] Speaker 00: That's exactly right, Judge Lurie. [00:26:45] Speaker 00: At the 101 motion stage, what was argued to the court by Cardionet was that there was a novel, selectable T-wave filter. [00:26:55] Speaker 00: And then the court learned, upon seeing Cardionet's infringement theory, that their view of these claims was that it would cover a T-wave filter that is always on, that is not selectable at all. [00:27:07] Speaker 00: And then the court realized that had the court had that information at the 101 stage, [00:27:13] Speaker 00: there very well might have been a different outcome under section 101. [00:27:17] Speaker 00: And while the court does not need to reach that issue, we would submit that is the outcome that is appropriate here in validation of these claims as patent ineligible. [00:27:28] Speaker 00: Are these sort of the remainder of my time for rebuttal, unless there are further questions? [00:27:32] Speaker 01: We will do that. [00:27:50] Speaker 03: Judge Amali's question about the template. [00:27:52] Speaker 03: So the template requires identifying the claims, accused components, and the basis of infringement. [00:28:00] Speaker 03: So that's exactly what the letter of the rule says. [00:28:02] Speaker 03: It's not the hat. [00:28:03] Speaker 03: And if you look at the chart at 945, and I won't take the time to go through it now. [00:28:08] Speaker 02: Well, basis of infringement. [00:28:09] Speaker 02: I mean, you used these charts, right? [00:28:12] Speaker 03: Literal or doctrine of equivalence, I understand the confusion. [00:28:15] Speaker 03: So basis of infringement is not show me element by element what the substance is of the accused structure. [00:28:21] Speaker 03: It's is your infringement a literal infringement case or DOE? [00:28:25] Speaker 03: Check one, check two. [00:28:26] Speaker 02: But you agree that you listed the claim limitations, and then you said in your very charts with footnotes that we don't know whether they practiced these. [00:28:35] Speaker 03: Not quite. [00:28:36] Speaker 03: I really would like the court to take the time, not now, but to go through each of the charts, because we actually submitted documentation that shows in the accused device where the infringement occurs. [00:28:50] Speaker 03: And there was a statement that says, we expect to get more. [00:28:52] Speaker 03: And if we do, we can update. [00:28:54] Speaker 03: But updating was with respect to the four categories required by the rule. [00:28:57] Speaker 02: What about the documents? [00:28:59] Speaker 03: What about them? [00:29:00] Speaker 03: They are identified here as well. [00:29:02] Speaker 02: But what about the documents that were newly identified in connection with your expert report that had never been identified before? [00:29:08] Speaker 02: Yes. [00:29:08] Speaker 03: So admittedly, there's more information in the expert report that's in the preliminary infringement contentions. [00:29:14] Speaker 03: And that's a question of fact, that if you compare the two, did one provide notice of what subsequently was submitted? [00:29:19] Speaker 03: And the court didn't do that analysis. [00:29:21] Speaker 02: Wait. [00:29:21] Speaker 02: I don't understand that. [00:29:22] Speaker 02: Question of fact. [00:29:23] Speaker 02: The question of fact is, were there documents produced that had never been produced before? [00:29:30] Speaker 03: Yes, there was additional information that was continued to be produced after these contentions were submitted. [00:29:35] Speaker 03: So there were depositions. [00:29:37] Speaker 03: There was additional discovery running up through the expert phase. [00:29:43] Speaker 01: Do you have one final thought? [00:29:45] Speaker 03: I do. [00:29:45] Speaker 03: So on the question with respect to evidence, affirmative evidence infringement, it's in the charts. [00:29:54] Speaker 03: the claim is not directed to generating a message. [00:29:57] Speaker 03: So it's really a confusing argument to try to make the claim seem like they are claiming the generation of the message. [00:30:03] Speaker 03: The claims are a structure that responds to a message. [00:30:07] Speaker 03: So it's not covering what the operator or the doc does. [00:30:10] Speaker 03: And with respect to 101, I don't have enough time, but what we'll say is with respect to 101, [00:30:19] Speaker 03: What is being claimed is structure that improves heartbeat detection. [00:30:26] Speaker 03: It is not a Fourier transform. [00:30:28] Speaker 03: It is not mathematics. [00:30:29] Speaker 03: It is actually structure that improves heartbeat detection. [00:30:33] Speaker 03: So if you answer your question, how does it compare to the 207 patent that this court dealt with? [00:30:37] Speaker 02: Was the district court correct that what you argued at the 101 state was different than your characterization of the technology when you got to the infringement stage? [00:30:46] Speaker 03: No, not at all. [00:30:48] Speaker 03: So it's not inconsistent. [00:30:49] Speaker 03: So with respect to validity, what we're saying is that the claims are not claiming what the doc does. [00:30:54] Speaker 03: The claims are claiming structure that responds to something the doc does. [00:30:57] Speaker 03: That's different. [00:30:58] Speaker 03: A message that the doc creates. [00:31:00] Speaker 03: And with respect to infringement, we have to identify a message. [00:31:03] Speaker 03: So it's not inconsistent that with respect to infringement, what we're doing is we're looking at the message that's generated by the operator. [00:31:11] Speaker 03: So the difference between what you're claiming and what you're responding to. [00:31:14] Speaker 03: So it's not inconsistent. [00:31:16] Speaker 03: But that was confused in the record. [00:31:19] Speaker 04: Your expert at 9913 admitted, quote, there are filters that are routinely employed in cardiology. [00:31:28] Speaker 04: So these T-wave filters were routinely employed, right? [00:31:36] Speaker 03: The T-Wave filter that's selectively responsive to a predetermined message that improves heartbeat detection, that was not conventional. [00:31:47] Speaker 04: But T-Wave filters were conventional, right? [00:31:56] Speaker 04: expert is saying, as I understand it, T-Wave filters are conventional and routinely used, correct? [00:32:03] Speaker 03: T-Wave filters as a general proposition existed, but not in the way it's claimed in the patent. [00:32:10] Speaker 03: So that's important. [00:32:12] Speaker 03: And council made a claim that it's undisputed. [00:32:15] Speaker 04: Is it implied in the patent in terms of their ability to be selective? [00:32:21] Speaker 03: No, it's the ability to be [00:32:24] Speaker 03: But let me go to the specification. [00:32:26] Speaker 03: So if you look at the patent specification, there are several instances where there are improvements from this system that are described in the spec. [00:32:35] Speaker 03: And that's something that, in the 207 case this court dealt with, should be credited here. [00:32:41] Speaker 04: What's the improvement? [00:32:42] Speaker 03: So at 715, column 3, line 52 to 60, it says the morphology of a cardiac signal can vary significantly from patient to patient. [00:32:51] Speaker 03: Sometimes the patient's EKG has a very tall T-way, which might result in false classifications, essentially double the calculations. [00:32:58] Speaker 03: What's the improvement? [00:32:59] Speaker 03: There's more if you look at column. [00:33:00] Speaker 04: But I was telling you what the improvement is. [00:33:03] Speaker 03: The improvement is a more accurate cardiac monitor. [00:33:08] Speaker 03: That's the improvement. [00:33:09] Speaker 03: The ability to not ignore, [00:33:13] Speaker 03: tall T waves, but to filter them. [00:33:14] Speaker 03: Why is that important? [00:33:15] Speaker 03: Well, if you look at the arguments made by Infobonics, they're saying that the human operation is ignoring tall T waves. [00:33:24] Speaker 03: But the claimed invention actually doesn't ignore tall T waves. [00:33:27] Speaker 03: It filters them. [00:33:27] Speaker 03: And the difference is, when you filter them, you can diminish the T waves, enhance R waves, and improve... Well, you filter them out, right? [00:33:37] Speaker 03: There's a difference between filtering and ignoring. [00:33:39] Speaker 03: So filtering is not the same thing as ignoring. [00:33:42] Speaker 03: And the patent specification talks about the benefits of filtering versus ignoring. [00:33:47] Speaker 01: Thank you, counsel. [00:33:51] Speaker 01: Mr. Sanders, two minutes. [00:34:06] Speaker 01: On the cross appeal. [00:34:09] Speaker 00: Yes, thank you, Your Honor. [00:34:10] Speaker 00: I'd like to just address a few points. [00:34:13] Speaker 00: First, Cardionet's argument was absolutely inconsistent at the summary judgment stage from what it argued earlier on 101. [00:34:21] Speaker 00: And this was stated by the district court at A20 to 21. [00:34:25] Speaker 00: Cardionet emphasized the importance of a selectable T-wave filter at the earlier stage, but for infringement, wrote off that limitation. [00:34:34] Speaker 00: contending that a system with an always-on TWA filter meets the claims. [00:34:39] Speaker 00: And if you can see the inconsistency by looking back at the earlier briefing at A910, Cardionet emphasized a special purpose cardiac monitoring apparatus selectively applying a TWA filter. [00:34:53] Speaker 00: And at A2196, a novel selector. [00:34:57] Speaker 00: That, to your question, Judge Dike, was what Cardionet contended was the improvement. [00:35:04] Speaker 00: But that is simply the abstract idea, this idea of selectability. [00:35:10] Speaker 00: And T-Wave filters, to the questions asked earlier, were conventional. [00:35:15] Speaker 00: That's addressed at our gray brief at pages 7 to 9. [00:35:19] Speaker 00: And we quoted an intrinsic patent. [00:35:23] Speaker 00: And their own expert admitted, this is on A6284, that a 1969 patent discusses a T-wave filter with a very sharp frequency cutoff that acts to pass our pulses while strongly inhibiting the passage of T pulses. [00:35:39] Speaker 00: Indeed, our expert mentioned it's been known since the 1930s. [00:35:42] Speaker 00: That's at A7445. [00:35:45] Speaker 01: Thank you, Your Honor.