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United States Court of Appeals for the Federal Circuit is now open to end in session.

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God save the United States and its honorable court.

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Good morning.

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There are four cases before the court this morning, only two of which are being argued.

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The first argued case is case number 20-2043, Cosmo Key Solutions versus Duo Security.

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Are you prepared to begin, Mr. Weingartner?

[00:00:32] Speaker 00:
Yes, Your Honor.

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You may.

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Thank you, Your Honor.

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May it appease the court, Scott Weingartner of White and Case Repellent Cosmo Key Solutions.

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The claims of the 903 patent in this case are directed to a specific method for use of a dual channel timing architecture and auto deactivate function that improves computing technology and is also necessarily rooted in that technology.

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The claims are not a mere abstraction, but achieve, if you will, a particular chemistry, a useful result that has not previously been known in the industry, let alone before the introduction of telecommunications and computing technology.

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Counselor, this is Judge Raina.

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I have a preliminary question, and I'm kind of confused on this, and maybe I shouldn't be.

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But what is it that is being appealed here, a refusal to initiate,

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or is it a final written decision?

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Thank you, Judge Raina.

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It's a final decision under Rule 12, dismissing based upon 35 U.S.C.

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Section 101.

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Okay.

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So this goes to, I think, the question Judge Raina just asked, which is that this is obviously from the district court, but you keep citing to the PTAB.

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Are you saying that somehow the PTAB rulings are binding on the district court or binding on this court?

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Not at all, Your Honor, and I'm glad we have an opportunity to address that.

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We think it's an interesting situation because the PTAB results, we do not see them as in any way being binding or replacing a 103 analysis.

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To the contrary, to arrive at the 103 results at the PTAB,

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got to after a detailed analysis required factual determinations that overlap significantly with determinations that the court made on the same prior art.

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And so it's our view that that proceeding, which happened in parallel at the behest of the appellee's parent company, our signal here, and point out

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the problems with how the district court went about arriving at its conclusion.

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So it's not that it governs, it's that it sheds light on the underlying factual issues that are on point here.

[00:02:57] Speaker 01:
Well, Mr. Weinberg, go ahead.

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I was just going to say, I'm still a little confused by your answer to Judge O'Malley's question.

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What specifically are you relying on those PTAB determinations for as regards 101?

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Yes, and thank you, Your Honor.

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We raised the PTAB point because with respect to 101, there were a couple of points that the district court reached regarding what was conventional technology, whether the actual technological improvements were being made.

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And for one example, the court considered a particular prior art reference.

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and concluded that there was the same architecture as was being claimed.

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And the PTAB, which is not true, and the PTAB very clearly pointed out that it wasn't.

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So we view that separate proceeding as a source of factual evidence about what the prior art showed, which was at odds with the conclusion that the district court reached.

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So is your view that if something wouldn't be obvious to one of ordinary skill in the art that it necessarily couldn't be conventional or routine or well-known?

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I think there's a significant connection between the two of them, Your Honor.

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I think that I understand the point that 101 and 102 and 103 are different and that it is possible to have

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a claim to something that appears novel but still ineligible because it doesn't claim the subject matter properly and it claims an abstraction.

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I see that.

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But what's your legal authority for that, for that argument or that position?

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Well, I think, Your Honor, that's probably the closest case is internet patents, the active network, 790F1343.

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And there's also some district court cases, Your Honor.

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And the internet patents case at one point says, courts have found guidance in deciding whether the allegedly abstract idea or other suited category is indeed known, conventional, and routine or contains an inventive concept by drawing on rules of patentability.

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But again, Your Honor.

[00:05:22] Speaker 03:
But that says nothing about reaching back into 103, into a 103 finding.

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Right, and Your Honor, what we, and I appreciate Your Honor's question.

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Again, we're not looking at the 103 finding and saying that that is relevant to 101.

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We're looking at the underlying conclusions on the underlying facts that support 103 that we believe are in common with 101.

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On that point again, I know you need to get into other things, but didn't the district court actually rely on what the patent itself said about that prior, the Williams reference?

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I don't believe it relied on what the patent said, Your Honor.

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I believe it looked at the Williams reference and the representations that were made about it.

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by the defendant below.

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And it didn't conduct.

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And I understand why the district court wouldn't necessarily conduct a detailed analysis because it wasn't a 103.

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But it looked at it, I would think, in a relatively oversimplified way.

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Even the figures in Williams very clearly show a single channel.

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And the dual channel is distinct, wasn't in the prior art.

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And we believe that the Williams reliance was a linchpin for one of the district court's conclusions.

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Is a dual channel the focus of the claimed advance?

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Judge Raina, it's actually more than one.

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There's a dual channel timing mechanism and also a separate functionality, which is

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where an authentication function that is automatically deactivated, that's on the user side.

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So it's both individually, we believe, bring the claims out of a 101 finding, but certainly the combination in addition does as well.

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Sorry, I'll go first on this one, and then I'll give it to you, Judge Stoll, in a second.

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But on the dual channel timing,

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Is it the dual channel aspect that you're claiming is new and unusual, or is it the fact that you're saying that the timing is virtually simultaneous?

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Thank you, Judge O'Malley.

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It is the dual channel timing that has a pathway, for example, through a terminal to a service provider, and then the separate channel

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to a phone, which is a trusted link, which wasn't in the prior art, to do a timing as between the two of them.

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But you don't really claim a specific time frame in the claims themselves, do you?

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I think, Your Honor, with respect that we do, Judge O'Malley, essentially in the third element we claim, and we believe this really distinguishes over the prison technologies case, there's a specific criterion, the criterion for deciding about authentication

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where there's a check as to whether a pre-determined time relation exists between the transmission of the user identification and a response from the second channel.

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And we recognize this is tricky, because as a patent practitioner, one has to come up with a term that captures the notion of a relation.

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It doesn't specify exactly what that timing is that's open for the service provider to conclude what would be most secure.

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But it is in the third.

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It could be two hours.

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This is Judge Stoll.

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That could be two hours, right?

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I mean, your specification says the predetermined time relation could be simultaneous or it could be some other time.

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And predetermined time relation is pretty broad, right?

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I mean, I understand what you're saying about being a claim drafter and wanting to make sure that you keep it broad so you don't have people designing around based on certain amounts of time.

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You know, this claim language is pretty broad.

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It could be two hours, right?

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Well, Judge Stoll, it certainly would be up to the system designer for the context that they're in.

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The problem with claiming it as a specific time

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There would potentially be, if there were some other way of putting it, it might run into indefiniteness problems.

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But I think the breadth issue is really addressed by the fact that it's in the context of the dual channel.

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So I know that the appellee has been arguing that this is a claim to using timing and authentication.

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That's definitely not what this claim is directed to.

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It's the combination of the dual channel with the timing mechanism.

[00:10:02] Speaker 01:
Can I ask you about the LASTER limitations?

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where you've got ensuring the authentication function is normally inactive and then ensuring that it's activated by the use, that the response occurs and then thereafter ensuring the authentication function is deactivated.

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What is your, is there something in the specification to support your position that this, these claim limitations are important to the invention?

[00:10:31] Speaker 00:
Yes, Your Honor, I don't know that I have it at my fingertips, but it's really central

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This is really, I think, that in combination with the other features are core to the invention.

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And the usefulness was actually, I think, acknowledged during the PTAP proceedings by Cisco, who pointed to them, you know, in its attempts to show that the references could be combined.

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It pointed to the technical usefulness.

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I often consult the specification when I'm trying to determine, you know, thinking about

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what a claim is directed to or whether something is an incentive concept.

[00:11:04] Speaker 01:
So if there's something in that specification, maybe you'll want to identify it for us.

[00:11:11] Speaker 00:
Yes, Your Honor.

[00:11:12] Speaker 00:
I could perhaps direct the court to the bottom of column one, line 63 on, where it says, the complexity of the authentication function can be reduced significantly.

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Hopefully I'm looking at the right passage here.

[00:11:31] Speaker 02:
Which column are you in?

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I'm sorry.

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Thank you, Your Honor.

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It's at the bottom of column one.

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Okay.

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And then it says, in the extreme, all that has to be required from the authentication function is to permit, and I apologize for speaking so quickly, even, I guess, the paragraph prior to that, and I apologize.

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I should have my reading glasses on.

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The prior paragraph, which would begin around line 57 or 58, states that the authentication method according to the invention is characterized, pardon me, the patent jargon, in that the authentication function is normally inactive and is activated by the user only preliminarily for the transaction.

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And the response from the second communication channel includes the information that the authentication function is active and the authentication function is automatically deactivated.

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And that reduces, and I'll explain, the complexity significantly.

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And if I reversed those earlier, I apologize.

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I think one of the problems here is that this is an oddly written patent.

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I mean, I'm used to seeing a description of the prior art and a description of how these are advantages over the prior art.

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So you call out these, and it actually goes into column two as well.

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Are you saying these were not known in the prior art?

[00:13:02] Speaker 00:
Yes, Your Honor.

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And I believe this is a convention case coming out of Germany, which I had no role in preparing.

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And I understand the court's observation.

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I wasn't criticizing you.

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I was just saying it.

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No, thank you, Your Honor.

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But I appreciate the point about the format of the application that led to the patent being a bit unconventional.

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But yes, it's our position and it's the position of the patent that that feature was new as of the filing date.

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And I know that 101 doesn't always focus specifically on going back to the filing date, but that was new at the time.

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And we believe that that was admitted, you know, by duo as well.

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We don't think that it's controversial.

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And perhaps the reference to the PTAB proceedings we pointed to, again, not because 103 is directly controlling in any way.

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It isn't.

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But simply that it leaves a record simultaneously, which the court did not have the benefit of until pretty late, in order to be able to see the differences between the positions that were before the PTAB and before his honor below.

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Mr.

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Could you clarify for me, Counselor, are the claims directed to resolution of a problem in internet technology, or is this improvement of computer functionality?

[00:14:38] Speaker 00:
Thank you, Judge Raina.

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I see them as very closely related, that computer and network technology are

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not exactly synonymous, but they exist side by side nowadays.

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There was a time when I was younger when the computers were all detached from one another, but now they're all networked.

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So I think that we're not saying that the innovations have to do with the underlying computer hardware, but it has to do instead with the architecture.

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And in a way, almost all computer inventions, I would contend, really involve issues of arrangement of data paths or links

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and nodes and relative timing.

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I think the bulk of innovations in computing technology fall into that category, and I think this invention is one of those.

[00:15:31] Speaker 02:
I didn't hear a buzzer, but it looks like you're past your 10 minutes.

[00:15:38] Speaker 02:
Did I miss something, Katie?

[00:15:40] Speaker 00:
Yeah, there was a buzzer.

[00:15:42] Speaker 02:
Oh, OK.

[00:15:43] Speaker 00:
And I apologize, because I was just showing that it was just 15 minutes, and I apologize to the court that I did not hear the buzzer.

[00:15:51] Speaker 02:
All right.

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I'll restore three minutes for rebuttal, and Mr. Lemley, I'm sure we'll probably go over on yours as well.

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So I'm sorry.

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I'll have to keep watching the clock a little better, or start hearing better in any event.

[00:16:06] Speaker 02:
Let's hear from Mr. Lemley.

[00:16:09] Speaker 00:
Thank you, Your Honor.

[00:16:11] Speaker 04:
Thank you, Your Honor, and may it please the court.

[00:16:14] Speaker 04:
Let me begin by just pointing out that this case is like dozens of others this court has seen in the last decade.

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The patentee claims to have come up with an idea and then patented the idea itself, implemented using any standard technology.

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It's well established in the case law that that isn't patentable subject matter.

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And indeed, this court has not only regularly rejected patent claims of this form, it has rejected, as unpatentable under Alice, other efforts to claim the very idea Cosmo Key thinks it came up with.

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Mr. Lemley, if we were to break down a little bit what you just said, let me ask you this question.

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Now, your opponent says that

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These are some of the things that did not exist in the prior art.

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And that's the dual channels, the predetermined timing, the limitation of predetermined timing.

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Just on those two alone, was this in the prior art or not?

[00:17:14] Speaker 04:
Well, it was, Your Honor, although I think you do not need to reach that question in order to resolve this case, because the idea itself is abstract.

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It is worth noting that the petitioner, the appellant here is all over the map in what they claim the invention actually is.

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In the district court, the claim was that it was a two-factor method of authentication where you could just turn on the second device.

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They, on appeal, changed their argument to focus on the timing and predetermined time relation.

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That's something they paid no attention to in the district court.

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In the reply brief, they changed their argument again and seemed to focus on this auto deactivation feature or on the idea of an ordered combination.

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All of those arguments are new.

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This court has long established that the two-factor authentication is itself an abstract concept.

[00:18:09] Speaker 04:
And it did so in the 10th Street opinion.

[00:18:12] Speaker 03:
Counselor, I would agree that maybe authentication is an abstract concept, and I kind of would

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start there, but then when you start getting into these further limitations here, seems to me that there's a hierarchy of rules that are being established to reach now a new type of authentication.

[00:18:35] Speaker 03:
What's your response to that?

[00:18:39] Speaker 04:
Well, Your Honor, I think that's not correct.

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I mean, even apart from the fact that I think they have waived the argument that there's a sort of structured hierarchy here by not arguing it in the appellate brief, the ordering and structure of the concept appears to be simply turn the device on, use it, and turn it off.

[00:18:59] Speaker 04:
And I think that's hardly something you can claim to be an inventive concept.

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Now the claim does say that the device will auto deactivate, but I think it's also hard to claim that that is an inventive concept.

[00:19:13] Speaker 04:
My toaster turns itself off.

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My phone and my computer all turn themselves off after a period of inactivity.

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Is that really the invention here?

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Is it the invention that you want to use your toaster, but before you can use it,

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You have to have this dual authentication, and it has to happen within a certain amount of time, a predetermined amount of time?

[00:19:36] Speaker 04:
Well, Your Honor, I think the answer to that is no, because this court has previously held that two-factor authentication, the idea of using the second device, is itself an abstract concept.

[00:19:49] Speaker 04:
In two cases that are unpublished, Consumer 2.0 and Ishgari Kamrani, this court extended that to two-factor authentication that occurred, quote, during a specified period of time.

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And it's worth noting that those cases involved technology that actually was a lot more clearly specified than the technology here.

[00:20:12] Speaker 04:
The only thing that they point to in their appellate brief is this idea of a predetermined time relation, but there's nothing in the predetermined time relation that suggests a particular time.

[00:20:25] Speaker 04:
And more importantly, I think that is itself an abstract idea.

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Even if one were to say this is a novel move, which I don't think it is, the idea of using two devices, turning one on within a predetermined time is an abstract idea.

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And this court has made abundantly clear.

[00:20:50] Speaker 03:
Do you think that Opposal reading the pen would

[00:20:54] Speaker 03:
would understand that the pre amount of predetermined time is minimal as opposed to, you know, two hours or two days.

[00:21:03] Speaker 03:
Uh, your honor, I, I think it, I, I mean, if you want to use your toast, if you want to use it now, you don't want to use it two hours from now.

[00:21:09] Speaker 03:
Right.

[00:21:10] Speaker 04:
I think it is fair to say that that is perhaps something that the patent intended, but it is not something that is captured in the claims.

[00:21:19] Speaker 04:
The claims do not specify something that's near simultaneous.

[00:21:22] Speaker 04:
They specify only a general term predetermined to time relation.

[00:21:26] Speaker 04:
But again, I think that even if you were to try to read that in as a limitation, and that's something this court has repeatedly said you cannot do, it would be irrelevant because the point of doing so is itself an abstract idea.

[00:21:45] Speaker 04:
And this court has repeatedly made clear that you can't use the abstract idea itself at step two to say this is a novel concept.

[00:21:56] Speaker 01:
I just wanted to ask you about those last three steps of the claim.

[00:22:04] Speaker 01:
They have me... I think they may face a little bit more difficult.

[00:22:09] Speaker 01:
Those last three steps, talking about, you know, ensuring that something's off and then that it's normally inactive and then activating it preliminarily and then deactivating it after it's all done.

[00:22:24] Speaker 01:
steps seem to be discussed in the specification at Columns 1 and 2.

[00:22:28] Speaker 01:
And they say that those steps make it so that the device can be quite simple.

[00:22:34] Speaker 01:
But also it says in Column 2 around Line 15 or so that when the authenticates... Because the authentication functions are not there, you know, having these steps causes it to be provided an authentication that would be more...

[00:22:51] Speaker 01:
and talks about it being successful only under the unlikely event that the true user happens to activate this function.

[00:22:59] Speaker 01:
Why is that not an inventive concept then as recited in the claim?

[00:23:07] Speaker 04:
what you are it's worth noting here uh... that uh... uh... that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that that

[00:23:35] Speaker 04:
Well, it could be a short period of time, but it doesn't have to be.

[00:23:38] Speaker 04:
The patent itself says the user is the person who turns this thing on.

[00:23:43] Speaker 04:
And the concept of automated deactivation, which is something that would be done automatically, can be done with something as simple as an on-off switch.

[00:23:56] Speaker 01:
I understand your answer.

[00:23:59] Speaker 01:
It's a good one.

[00:24:01] Speaker 01:
The problem I'm having is that

[00:24:03] Speaker 01:
You know, the claim's directed to an authentication technique, right?

[00:24:07] Speaker 01:
And then it has specific steps for the authentication, which are kind of specific.

[00:24:13] Speaker 01:
I mean, you know, it's more than, say, prison.

[00:24:15] Speaker 01:
And so I can understand that you could break down each step as you've done and say that each step in and of itself is fairly simple and doesn't talk specifically how it's done.

[00:24:25] Speaker 01:
But at what level are we supposed to analyze this claim?

[00:24:29] Speaker 01:
Am I supposed to look at each and every step

[00:24:31] Speaker 01:
and see whether each and every step is just something basic?

[00:24:35] Speaker 01:
Or should I look at the claim as a whole and see if it's providing a specific authentication technique?

[00:24:41] Speaker 04:
Well, Your Honor, I think you can do both.

[00:24:43] Speaker 04:
But I would suggest that neither each individual step nor the combination is itself anything more than an abstract idea and is certainly not an inventive concept added to that abstract idea.

[00:24:57] Speaker 01:
So when you release the added to this claim, if you make it,

[00:25:01] Speaker 01:
an inventive concept or make it directed to something that is eligible because it's a technical solution to a technical problem.

[00:25:11] Speaker 01:
What kind of details do you think would have to be?

[00:25:13] Speaker 01:
I'm just trying to give you kind of a hypothetical here because, you know, we have to draw these lines on when something is eligible and when it's not.

[00:25:22] Speaker 01:
And sometimes it's rather difficult.

[00:25:24] Speaker 01:
So I'd like to have your thoughts on that.

[00:25:25] Speaker 01:
What kind of things would have to be added?

[00:25:28] Speaker 04:
I understand that, Your Honor.

[00:25:30] Speaker 04:
I think the answer is you could imagine a technology that was itself somehow integrally connected so that it received and generated signals of a particular type.

[00:25:47] Speaker 04:
that turned itself on, for instance, in the proximity of a recognized device.

[00:25:55] Speaker 04:
You could imagine things that actually changed the way computers operated here.

[00:25:59] Speaker 04:
What's notable here is that there's none of that in the claim, there's none of that in the specification, and indeed the specification is quite clear that we don't even need computers at all to do this.

[00:26:09] Speaker 04:
The terminal can be a banking machine or cashier or any other device.

[00:26:14] Speaker 04:
The mobile device is a particular advantage of the invention that the mobile device does not have to have any specific hardware.

[00:26:23] Speaker 04:
It can be low complexity.

[00:26:24] Speaker 03:
Counselor, I kind of shared what Judge Stowell was asking and I have those concerns.

[00:26:33] Speaker 03:
I'll be real simple here.

[00:26:35] Speaker 03:
Explain to me why, when you look at the different steps in claim one, why is that not what happened in McGrow?

[00:26:45] Speaker 04:
Oh, Your Honor, I think the answer is McGrow was very clearly directed to a change in the way the computer actually worked.

[00:26:54] Speaker 04:
We changed there, the claim was directed to McGrow.

[00:26:59] Speaker 03:
But how did that change occur?

[00:27:01] Speaker 03:
It occurred through a

[00:27:03] Speaker 03:
through the recognition and a combination of specific rules, right?

[00:27:09] Speaker 04:
It did, Your Honor, but those specific rules were implemented in software in the computer in a way that changed the operation of that computer.

[00:27:17] Speaker 04:
Here we not only have no such similarity, we don't even have software.

[00:27:22] Speaker 03:
The patent is clear that the device can be as much... But here it turns on the computer.

[00:27:29] Speaker 03:
It gives you access to use it.

[00:27:31] Speaker 04:
Well, no, Your Honor.

[00:27:33] Speaker 04:
I think that maybe how we use it, but the mobile device can be a low-complexity device.

[00:27:40] Speaker 04:
The patents claim at Column 2, 54 to 56, says it is not even necessary there is any actual communication between the authentication device and the mobile device.

[00:27:52] Speaker 04:
Having a wireless link is, quote, preferable but optional.

[00:27:56] Speaker 04:
This is not something that is limited to any particular technology, much less a way that changes that particular technology.

[00:28:04] Speaker 04:
The idea is, quite simply, turn something on and then detect that there is something turned on.

[00:28:10] Speaker 04:
That is an abstract idea.

[00:28:14] Speaker 03:
The invention isn't directed to authentication for use of the second device.

[00:28:20] Speaker 03:
It's for authentication of the transaction.

[00:28:22] Speaker 03:
And the device is just another one, the cell phone is just another step in getting to the authentication of the transaction.

[00:28:31] Speaker 04:
That's correct, Your Honor, but it is the only thing that Cosmochi argues is potentially something they have invented.

[00:28:38] Speaker 04:
This court has long recognized in multiple cases that two-factor authentication itself is an abstract concept.

[00:28:45] Speaker 04:
that the idea of authentication at the terminal, but also authentication at the terminal using it's exercise.

[00:28:51] Speaker 03:
It seems to me that they're not arguing that they invented authentication.

[00:28:55] Speaker 03:
They're arguing that they invented a new way of authentication.

[00:28:59] Speaker 04:
well you know i i i i i they are in fact on appeal arguing that i have a little they did try to argue that they were uh... they they claim two-factor authentication they are arguing that predetermined time relation uh... but that is not i think inventive and more to the point i think that is itself an abstract idea uh... and that if it's an abstract idea even if it is a novel abstract idea that shouldn't matter and that may be maybe a lot of you to take a bit about the p tap uh... with the court's permission

[00:29:29] Speaker 02:
Yeah, Mr. Lemme, I wanted to actually ask you, do you see, putting aside whether we're bound by anything the PTAP would say, do you see a relationship at all between obviousness and routine and conventional?

[00:29:48] Speaker 04:
Your Honor, I think that there are overlaps, as the Court said in Mayo, between the inquiry, but they are definitely not the same inquiry.

[00:29:56] Speaker 04:
What this Court has repeatedly said is that the novelty of the process is of no relevance in determining patentable subject matter.

[00:30:04] Speaker 04:
That's Intellectual Ventures versus Symantec.

[00:30:07] Speaker 04:
But it says the same thing in SAP versus Investpick.

[00:30:11] Speaker 04:
It's not enough for subject matter eligibility that claim techniques be novel and non-obvious.

[00:30:15] Speaker 04:
We may assume the technologies claimed are groundbreaking, innovative, or even brilliant.

[00:30:19] Speaker 04:
That is not enough for eligibility.

[00:30:21] Speaker 04:
So I think there are sometimes questions that are similar here, but there's no, even apart from the fact that this is a denial of institution and is not appealable, is not binding, it's not the same question.

[00:30:35] Speaker 04:
What the PTAP was looking at was whether it would have been obvious to combine specific pieces of prior art.

[00:30:41] Speaker 04:
And it found that certain references caught away from a claimed combination.

[00:30:45] Speaker 04:
That's irrelevant, I think, to the question, certainly irrelevant to the question of step one, is there an abstract idea.

[00:30:52] Speaker 04:
But I also think it's irrelevant in this case at step two because the only thing that the patentee points to to try to find an inventive concept is itself an abstract idea.

[00:31:04] Speaker 04:
And you can't do that.

[00:31:05] Speaker 04:
That's bootstrapping.

[00:31:06] Speaker 04:
And this court was quite clear in trading technologies that the abstract idea cannot supply the inventive concept no matter how groundbreakingly advanced.

[00:31:15] Speaker 02:
But didn't the district court look to the same references that the PTAP did?

[00:31:20] Speaker 04:
Your honor, the district court looked at one of the references.

[00:31:24] Speaker 04:
But again, it is worth noting that the argument with respect to step two, it is directed to this idea that they had created an inventive concept by implementing turning the device on.

[00:31:43] Speaker 04:
And that's something that the previous cases have simply held isn't

[00:31:51] Speaker 04:
patentable.

[00:31:51] Speaker 04:
It is an abstract idea.

[00:31:53] Speaker 04:
It is not an inventive concept implementing that idea.

[00:31:57] Speaker 01:
Are you saying that there's a specific case that addresses the concept of turning something on?

[00:32:04] Speaker 04:
Well, yes, Your Honor.

[00:32:06] Speaker 04:
In fact, in the ChargePoint case, both the idea of automatic activation and deactivation was held to be part of the inventive concept.

[00:32:17] Speaker 04:
And again, I will note that the argument with respect to the automatic deactivation feature is a new argument and could be rejected for that reason.

[00:32:26] Speaker 04:
But even if it's not, the only thing the patent claim element says is ensuring the authentication function is automatically deactivated.

[00:32:34] Speaker 04:
There's no specific technology claimed at all.

[00:32:37] Speaker 04:
The patent emphasizes a vast range of devices could be used.

[00:32:41] Speaker 04:
And Discord and ChargePoint held that that wasn't sufficient to avoid abstraction.

[00:32:46] Speaker 04:
And even in that case, in that case there really was real specific new technology and that was insufficient.

[00:32:55] Speaker 04:
My time is up, Your Honor, but I'm happy to answer further questions.

[00:32:59] Speaker 02:
Anybody have anything else?

[00:33:02] Speaker 02:
Okay, then we'll hear from Mr. Weingartner again.

[00:33:04] Speaker 00:
Thank you, Your Honor.

[00:33:08] Speaker 00:
Upele's argument depends, as it always has, on a divide and conquer strategy that's not permitted under the law.

[00:33:15] Speaker 00:
It's not OK to take all the elements, dissect them, look at them in isolation, and dismiss them as abstract.

[00:33:25] Speaker 00:
That's what's being done here.

[00:33:27] Speaker 00:
And then we're hearing, well, this is just an abstraction without any real identification of why that would be.

[00:33:35] Speaker 00:
I think Judge Stoll raised the question about needing to look at the elements as a whole, and I think that applies in this context.

[00:33:44] Speaker 00:
And there's not just an idea, there's a specific method with specific criteria and a specific structure.

[00:33:50] Speaker 00:
And that network structure... Can I ask something, Mr. Weingartner?

[00:33:53] Speaker 02:
Yes, Ron.

[00:33:54] Speaker 02:
It seems to me, though, that each step of the authentication seems to slow from the prior one.

[00:34:01] Speaker 02:
like the on-off switch.

[00:34:02] Speaker 02:
If the switch is off, then the only option is to have it turn on, and once it's on, the only option is to turn it off.

[00:34:08] Speaker 02:
So, even though that seems, each step might seem pretty exact, can't we just condense it down to switching the authentication function on and off?

[00:34:18] Speaker 00:
No.

[00:34:19] Speaker 00:
No, Your Honor.

[00:34:21] Speaker 00:
Again, if we were to do that as the appellant would like us to do,

[00:34:26] Speaker 00:
we'd be tossing out the network architecture, the network timing architecture, which is not in the prior art.

[00:34:31] Speaker 00:
I understood, Mr. Lemley, to say that it wasn't the prior art, but it's obviously not.

[00:34:35] Speaker 00:
And Cisco used three-way, four-way, and five-way combinations

[00:34:39] Speaker 00:
in an attempt to show that and fail that, again, I'm not equating the 103 analysis, but simply rebutting the point he made.

[00:34:46] Speaker 00:
It's a non-trivial thing, and it's not required, I don't think, as Appellant argued, that some underlying piece of hardware needs to be innovated in order for a network claim to be patent-eligible.

[00:35:00] Speaker 00:
The architecture is a legitimate subject.

[00:35:03] Speaker 00:
Bell Labs invented a lot of that, a lot of that's patented, because the network itself is susceptible to being improved, and that's what has happened here.

[00:35:14] Speaker 00:
At one point, Mr., and I'm digressing a little bit, but Mr. Lemley talked about proximity being something that would render something not abstract, but that's actually in the patent and is in Claim 6, using location-based services.

[00:35:28] Speaker 00:
So I didn't want that to let that go unaddressed.

[00:35:32] Speaker 03:
The concern that I have on the patent is that there's no, it seems to me that the time limitation is wide open and there's no, you know, if you can have the two days to get the device turned on or if it happens within a couple of minutes, if this patent is found to be eligible, aren't we preempting

[00:36:01] Speaker 03:
in the future the use of all authentication methods that are based on a predetermined time limitation?

[00:36:10] Speaker 00:
No, Judge Raina.

[00:36:11] Speaker 00:
And I appreciate the question.

[00:36:13] Speaker 00:
And I think the reason that it would not be preemptive is because it's limited to the specific dual channel architecture in that specific combination.

[00:36:21] Speaker 00:
I don't see this.

[00:36:24] Speaker 00:
And earlier when counsel was saying it's claiming an idea,

[00:36:28] Speaker 00:
It's hard to know even what idea is being pointed to when that question is being raised.

[00:36:32] Speaker 00:
It's a very specific solution.

[00:36:35] Speaker 00:
If one wants to do authentication, they can use many others, including the ones that are in the prior art.

[00:36:41] Speaker 00:
It is, again, that combination.

[00:36:43] Speaker 00:
And I urge the court to resist dividing the invention into different components

[00:36:49] Speaker 00:
and ascribing the inventive concept to any specific one of them because that, I think, runs into this problem of making it look abstract and there's really a coherent set of features.

[00:37:01] Speaker 02:
Okay, Council, I think your time is up.

[00:37:03] Speaker 02:
I appreciate it.

[00:37:04] Speaker 02:
This case will be submitted.

[00:37:07] Speaker 00:
Thank you, Your Honor.