[00:00:04] Speaker 03:
We will hear argument next in Eagle View Technologies against the exact wear solutions, number 211048.

[00:00:11] Speaker 03:
Mr. Perry, whenever you're ready.

[00:00:20] Speaker 00:
Thank you, Judge Toronto, and may it please the court.

[00:00:24] Speaker 00:
The asserted claims here purport to monopolize the abstract idea of deriving roof measurements from aerial photographs.

[00:00:32] Speaker 00:
using well-known math and generic user input.

[00:00:36] Speaker 00:
They are unequivocally ineligible under Section 101, as construed in Alice and a long line of this Court's precedents.

[00:00:46] Speaker 00:
These are pre-Bilski applications, but they were bad even before Bilski.

[00:00:51] Speaker 00:
Parker versus Fluke said you can't monopolize the Pythagorean theorem, yet claim two of the 436 patent does exactly that.

[00:00:59] Speaker 00:
It is drawn to correlating two images using nothing other than well-known photogrammetric calculations, trigonometry, including principally the Pythagorean theorem.

[00:01:09] Speaker 00:
Does the claim say that?

[00:01:11] Speaker 04:
Yes.

[00:01:12] Speaker 00:
The claim says correlate.

[00:01:14] Speaker 00:
The specification makes clear at appendix 372 and 373 that the correlation will be done by well-known photogrammetric equations which can be found in a variety of textbooks, articles, and learned treatises.

[00:01:26] Speaker 00:
And there are several in the record, Your Honor, including

[00:01:29] Speaker 00:
Multiple view geometry and computer vision which is cited at appendix eight three four seven Which has a whole chapter on how to take two images of aerial or three seven eight three four seven That's a that's dr. Mundy's report citing it, but the documents not actually there

[00:01:44] Speaker 03:
uh... the document aside and i realize this may not hurt your case that even in the spec there isn't actually a an account of what the trigonometry is that uses says everybody knows it go go to the library in your honor the obviousness references in the obviousness cases not before the court but the references in the obviousness case

[00:02:09] Speaker 00:
the Shea reference, the Sanjeviti reference, Leib, Verma, Aroest, Abrahami, all applied these calculations, these equations, these known means of correlating photographs.

[00:02:20] Speaker 00:
And of course, the obviousness case is important here to your question, Judge Toronto, because the court did not find that these references don't disclose every element of the claims.

[00:02:29] Speaker 00:
The court found that secondary considerations of non-obviousness overcame that showing.

[00:02:34] Speaker 00:
We didn't appeal that.

[00:02:35] Speaker 00:
We understand the standard of review of a jury verdict.

[00:02:38] Speaker 00:
But there's no dispute in this record that the equations, the ability to calculate the math.

[00:02:44] Speaker 03:
You just said something that at least my study of the case did not reveal to me.

[00:02:50] Speaker 03:
How do we know that the basis for rejecting the 103 claim to the jury was the secondary consideration?

[00:02:57] Speaker 00:
That's an appendix 56 to 65, Your Honor.

[00:03:00] Speaker 03:
The J-Moll opinion?

[00:03:01] Speaker 00:
The J-Moll opinion, correct.

[00:03:04] Speaker 00:
She found that two of the

[00:03:06] Speaker 00:
references were not prior art based on the priority date or public availability and that five of them, while they disclosed every element of the claim, the secondary references, while she did not dispute that they did disclose them, the secondary references.

[00:03:19] Speaker 03:
What do you make of the other patents, the one that require on-screen drawing of something called a pitch determination marker?

[00:03:30] Speaker 00:
So the user interface claims, I think it's important to look at how that

[00:03:36] Speaker 00:
a pitch determination marker was construed and applied.

[00:03:39] Speaker 00:
The infringement expert from my friends on the other side testified at Appendix 15957.

[00:03:44] Speaker 00:
It's some sort of graphical user interface that the user can manipulate on the screen that indicates the pitch of the roof.

[00:03:53] Speaker 00:
It is no more precise than that.

[00:03:55] Speaker 00:
It has no rules, parameters, guidelines.

[00:03:57] Speaker 04:
That's pretty much the official construction that was agreed upon, right?

[00:04:01] Speaker 04:
Well, you just articulated.

[00:04:03] Speaker 04:
Is there any difference between the agreed upon construction?

[00:04:06] Speaker 00:
Well, as a matter of claim construction, the underlying Judge Krueger's construction was actually plain and ordinary meeting.

[00:04:14] Speaker 00:
you know, it has to be capable of receiving the pitch, which is our infringement dispute and the claim construction issue in the case.

[00:04:23] Speaker 00:
Judge Jen goes to whether the second or third element, the wireframe construction, applies that.

[00:04:30] Speaker 00:
No, but I don't dispute that the construction, as Judge Kugler articulated it, is extremely broad.

[00:04:36] Speaker 00:
It picks up anything on screen from which a pitch can be estimated or received.

[00:04:41] Speaker 00:
That is not a limitation at all to get back to what I think was Judge Toronto's question.

[00:04:46] Speaker 00:
You know, that is not a McRoe type set of rules or another quasi-software claim.

[00:04:53] Speaker 00:
This is clearly not a software claim.

[00:04:54] Speaker 00:
It's an idea claim.

[00:04:55] Speaker 00:
It says anything on screen from which pitch can be calculated.

[00:04:59] Speaker 00:
And it's important to remember here, Your Honors, there's only three variables in the size of a roof.

[00:05:04] Speaker 00:
It's length, width, and pitch.

[00:05:06] Speaker 00:
Length and width are easily determined as the specification explains from the scale on the photo.

[00:05:12] Speaker 00:
So the only question is the calculation of pitch, and these patents describe doing it in two ways.

[00:05:16] Speaker 00:
One is the math claims, which is just literally math trigonometry, and the other is this pitch determination marker, which can be as simple as drawing a line so that it sort of matches up and then using, again, the Pythagorean theorem to tell what that angle is, is it 12 degrees, 15 degrees, 30 degrees, to determine the pitch.

[00:05:35] Speaker 00:
There is nothing in the claims, or for that matter in the specification, that describes how that is done.

[00:05:41] Speaker 00:
These are black box claims, right?

[00:05:42] Speaker 00:
It is a pitch determination engine or a roof estimation marker.

[00:05:46] Speaker 04:
What about the protractor tool embodiment that's disclosed in the patent?

[00:05:51] Speaker 04:
What if the claim, instead of saying pitch determination marker, said the

[00:05:57] Speaker 04:
the protractor tool and that you have these axes and then you have this arm, your movable arm, and you line up the arm along the edge of one section of the roof and that's how you determine pitch.

[00:06:12] Speaker 04:
Would that have been enough?

[00:06:14] Speaker 00:
Judge Chen, I think the protractor tool is a much more specific implementation.

[00:06:18] Speaker 00:
It has a different problem that is simply

[00:06:19] Speaker 00:
electronic manifestation of a physical object that everybody used to do exactly the same thing, right?

[00:06:25] Speaker 00:
I mean, these are, in other words, mental steps claims processed on a computer.

[00:06:29] Speaker 00:
The protractor claim is not asserted against these products, of course, because our products don't use a protractor.

[00:06:33] Speaker 00:
So it would have got Eagle View nowhere, and that claim is not among the asserted claims.

[00:06:38] Speaker 00:
In other words, that's one of the embodiments, but they have only asserted the generic pitch determination marker because

[00:06:45] Speaker 04:
You know, my question is with that claim as drafted the way I described it the patent eligible in your view.

[00:06:53] Speaker 04:
Now we have something that could arguably be regarded as a tool that is a specific implementation of this what you would call specific pitch determination marker concept written right into the claim.

[00:07:06] Speaker 00:
The protractor claim as drafted is not eligible Judge Chen because it doesn't explain what this protractor is or how it works or limited in any way.

[00:07:14] Speaker 00:
It's just another

[00:07:15] Speaker 00:
generic interface with an angle, um, angle determining, uh, aspect to it.

[00:07:21] Speaker 00:
I certainly agree.

[00:07:23] Speaker 04:
Claim was more detailed though.

[00:07:24] Speaker 04:
It described what it is and how it works.

[00:07:28] Speaker 00:
If we're talking about a hypothetical claim, absolutely one could describe, I would think.

[00:07:35] Speaker 00:
a specific tool.

[00:07:36] Speaker 00:
And we have, of course, from the court examples of specific tools that improve the functioning of a computer.

[00:07:42] Speaker 00:
The problem that this plaintiff has is that none of the claims that are actually in these patents have anything like the level of specificity necessary to overcome the abstract... I can't expect the one I described you would say is patent knowledge.

[00:07:54] Speaker 00:
I would say the one that you described with some more information is getting closer to the line.

[00:07:59] Speaker 00:
I'm not quite ready to go there, Judge Jen, but I think... And the reason is...

[00:08:05] Speaker 00:
There's a sliding scale of specificity as to interface tools.

[00:08:08] Speaker 00:
I think that's an accepted proposition.

[00:08:11] Speaker 00:
On the one end is do it on a computer using any interface.

[00:08:15] Speaker 00:
That's not eligible in itself because it simply describes the computer.

[00:08:19] Speaker 00:
On the other end would be a very specific interface that describes how it is used, you know, if you had the programming for it.

[00:08:27] Speaker 00:
you're way over the line.

[00:08:29] Speaker 00:
If you have the rules or parameters or constraints for it, you're closer to the line, right?

[00:08:33] Speaker 00:
I mean, in other words, that's how I think of McGraw is sort of like an interface case.

[00:08:38] Speaker 00:
Here, we have no rules, no parameters, no guidelines, no algorithms, no routines, no software, no hardware, no, you know, any mouse, any pointing device, any screen, any software.

[00:08:48] Speaker 00:
It is simply an interface.

[00:08:50] Speaker 00:
And in that respect, it's like discourse decisions in CX loyalty and other cases that simply describing an interface without more doesn't add anything to the claim.

[00:09:00] Speaker 00:
It simply is describing the idea.

[00:09:02] Speaker 00:
So that yes, of course, one could claim an interface, but these patents do not claim an eligible interface.

[00:09:11] Speaker 04:
So you're not taking a position that computer modeling claims per se are ineligible.

[00:09:18] Speaker 00:
I think, Your Honor,

[00:09:19] Speaker 00:
Many computer modeling claims are not only eligible, but robustly innovative.

[00:09:27] Speaker 00:
There's very complicated technology in modeling

[00:09:31] Speaker 00:
any number of things, buildings or cells or anything else, and if you've actually built that model and disclosed it to the public, the routines, the algorithms, the software, the constraints, the parameters, the rules, of course you can do that.

[00:09:45] Speaker 00:
To me, McRoe is our best case, and I think that shows where the line is that you have to describe enough to get you there.

[00:09:54] Speaker 00:
and those claims ought to be patentable.

[00:09:57] Speaker 00:
These claims are not software claims, you know?

[00:10:00] Speaker 00:
Eagleview stood up in the closing argument to the jury and said, we're not claiming software.

[00:10:04] Speaker 00:
These patents claim the idea of measuring roofs.

[00:10:08] Speaker 00:
And that's our point.

[00:10:09] Speaker 00:
That's exactly right.

[00:10:10] Speaker 00:
They don't claim any software.

[00:10:11] Speaker 00:
They don't claim any interfaces.

[00:10:12] Speaker 00:
They don't claim anything other than the idea of measuring roofs using photographs.

[00:10:18] Speaker 04:
Is there anything in the record that conclusively shows us that all of these claims could be performed

[00:10:24] Speaker 00:
my pen and paper.

[00:10:26] Speaker 00:
So I'll point you, Your Honor, to Appendix 59, which is in the district court's post-trial opinion, which quotes from a document which is PTX Plaintiff's Trial Exhibit 457 at page 19, which is Mr. Pershing's inventor notebook.

[00:10:44] Speaker 00:
And I don't believe that page, unfortunately.

[00:10:46] Speaker 00:
The text is in the post-trial opinion.

[00:10:48] Speaker 00:
But if you look at the actual page in the record, and of course I'd be happy to send it in.

[00:10:51] Speaker 00:
I don't think it's in the appendix.

[00:10:52] Speaker 00:
It has Mr. Ferging's sketch of a roof and the equations, which he drew from a textbook, and the solution.

[00:10:59] Speaker 00:
And he lays it out all on a page exactly how to do, at least the 436 claims, pencil and paper on a single page of his inventor's notebook.

[00:11:07] Speaker 00:
And that's what he claimed to be the conception of the invention and that their technical expert said was the instance here, the reduction of practice of the invention.

[00:11:14] Speaker 00:
And it is absolutely done on pencil and paper with an XYZ equation, basic trigonometry,

[00:11:21] Speaker 00:
trigonometry in the Pythagorean theorem.

[00:11:24] Speaker 00:
Other than the inventor's notebook, there are many explanations, including, for example, the Che reference, which was not held to be prior art, but is in the record, which shows both automated and semi-automated methods of calculating the sizes of buildings at Fort Hood, Texas, from aerial photographs.

[00:11:43] Speaker 00:
and the semi-automated ones were using human input in exactly the way here.

[00:11:48] Speaker 00:
So I think it's not actually disputed.

[00:11:51] Speaker 00:
The concept goes back at least to World War II and the aerial photographs of ships it sees and trying to figure out the distances between them and is carried on through.

[00:12:01] Speaker 00:
Computers

[00:12:02] Speaker 00:
make these things faster, but these claims don't claim any workings of a computer.

[00:12:07] Speaker 00:
They simply say, do it on a computer.

[00:12:08] Speaker 00:
They are Alice claims through and through.

[00:12:11] Speaker 03:
Mr. Perry, you're into your rebuttal time.

[00:12:13] Speaker 03:
Can I just ask you one question?

[00:12:15] Speaker 03:
Is there an injunction in this case or not?

[00:12:16] Speaker 00:
There is an injunction in this case, Your Honor.

[00:12:18] Speaker 00:
There's a permanent injunction that's been issued, entered since the day of the judgment.

[00:12:23] Speaker 00:
My client has complied with it.

[00:12:24] Speaker 00:
We've taken our products off the market and our

[00:12:26] Speaker 00:
awaiting the court's judgment.

[00:12:28] Speaker 00:
We urge the court to reverse that judgment so that we can go back to competing with our friends here on a level playing field and get back into business.

[00:12:37] Speaker 03:
Maybe we should hear from Mr. Oakley.

[00:12:39] Speaker 00:
Thank you.

[00:12:59] Speaker 01:
Thank you, Judge Taranto.

[00:13:00] Speaker 01:
May it please the court, John O'Quinn, on behalf of Eagleview.

[00:13:03] Speaker 01:
The claims at issue in this case did not automate conventional ideas for root measurements.

[00:13:11] Speaker 01:
Instead, as in fails, in Cardionet, in McRoe, and in Enfish, the claims are directed to using specific techniques and unconventional arrangements, particularly of area

[00:13:21] Speaker 01:
aerial photographs that was new to the field for solving a technological problem.

[00:13:26] Speaker 01:
In this case, doing roof estimation without on-site measurement.

[00:13:30] Speaker 01:
These are tools for measuring a roof without actually having to go and measure the roof.

[00:13:35] Speaker 01:
And there's no dispute that the field was the field of roof measurement, roof estimation.

[00:13:41] Speaker 01:
And their own CEO at Appendix 13,212 testified that at the time of these inventions,

[00:13:48] Speaker 01:
Quote, at that point in time, the industry as a whole would hop on a roof, hop on a ladder, climb a roof in order to take manual measurements.

[00:13:58] Speaker 03:
Can I ask you this question?

[00:13:59] Speaker 03:
And you'll correct me if my recollection is wrong.

[00:14:03] Speaker 03:
My recollection from the briefs, from your briefs, description of and citations on the idea that something or other was not conventional, I think every single statement

[00:14:18] Speaker 03:
tied that to roofs, you don't assert to you that measuring the objects that are in photographs, including any of these pieces of it, was previously unknown?

[00:14:39] Speaker 01:
Well, Judge Taranto, I'm not suggesting that it was previously unknown that you could use some types of photographs with some types of pictures to do some types of measuring.

[00:14:48] Speaker 01:
But first of all, the inquiry, as Berkheimer makes clear at page 1368 of that opinion, is not, of course, whether or not it was in the prior art.

[00:14:58] Speaker 01:
The question is, was it conventional, routine, well-known in the field?

[00:15:03] Speaker 03:
So as you know, part of what we sometimes do on step one, not step two, is to try to identify what the focus of the claimed advance is.

[00:15:15] Speaker 03:
And if the advance here is,

[00:15:18] Speaker 03:
Nobody had ever been, we think there's an advance in measuring objects, including planar objects in photographs.

[00:15:27] Speaker 03:
That would be one thing.

[00:15:28] Speaker 03:
It would be another thing to say that was done before.

[00:15:32] Speaker 03:
That's not an advance, but nobody had ever done it for roofs.

[00:15:36] Speaker 03:
Is the second the thing that is true to say here rather than the first?

[00:15:43] Speaker 01:
Well, Judge Toronto, first of all, I think it was an advance, no matter how you look at it, to use, in the context of the 436 claim in particular, non-stereoscopic images to do these types of measurements.

[00:15:57] Speaker 01:
That was heretofore unknown, period, full stop, as opposed to the use of stereoscopic images, which there had been some theoretical development of.

[00:16:07] Speaker 01:
But we saw a sleight of hand at the podium earlier.

[00:16:10] Speaker 01:
Stereoscopic means?

[00:16:11] Speaker 01:
So stereoscopic means essentially taken from more or less the same angle.

[00:16:16] Speaker 01:
It's kind of how your eyes work so that you get a three-dimensional image.

[00:16:19] Speaker 01:
The claims here are, the 436 claim specifically, is directed, number one, to the use of non-stereoscopic images.

[00:16:29] Speaker 02:
All the other claims are broad enough to reach non-stereoscopic.

[00:16:32] Speaker 01:
That's not true, actually, Judge Clevenger.

[00:16:34] Speaker 01:
Specifically, the 770 and the 454 also would only reach stereoscopic images.

[00:16:41] Speaker 02:
Their own expert conceded... I assume I disagree.

[00:16:43] Speaker 02:
I mean, the short is that there are a number of patents that are not limited to non-stereoscopic.

[00:16:48] Speaker 01:
So I agree that two of the patents, two of the claims, are not limited to non-stereoscopic.

[00:16:53] Speaker 01:
And I don't think there's a representative claim here.

[00:16:55] Speaker 01:
There are three different sets of claims or three different sets.

[00:16:59] Speaker 02:
Does this report, either in Kubler or Bum, analyze these claims individually?

[00:17:04] Speaker 01:
Yes, the court did look at the claims individually.

[00:17:08] Speaker 01:
And I think it's important to recognize the 436 is not only not just... Look at the claims individually.

[00:17:13] Speaker 02:
Did they give a separate analysis under 101 for each patent?

[00:17:17] Speaker 01:
There is a separate analysis.

[00:17:18] Speaker 01:
Of course, and I think regardless of what they did, this court would have to engage in a separate analysis for these claims.

[00:17:24] Speaker 01:
But this point is very important.

[00:17:26] Speaker 01:
The 436 is not directed to using photographs in the abstract.

[00:17:31] Speaker 01:
We heard

[00:17:32] Speaker 01:
a slide of hand here at the podium earlier.

[00:17:35] Speaker 01:
Throughout their brief, the argument they have made on appeal is that these claims were, quote, directed to the abstract idea of using a computer to generate roof measurement reports, end quote.

[00:17:47] Speaker 01:
Now today, Zach Ware says, well, the abstract idea is of doing roof measurements or deriving roof measurements from aerial photographs.

[00:17:54] Speaker 01:
You should hold them to what they have argued in this case.

[00:17:58] Speaker 01:
The abstract idea is using the computer.

[00:18:00] Speaker 02:
And what you have here is- Have they said today just a different way of saying the same thing they said in the brief?

[00:18:05] Speaker 01:
Not at all, Judge Clevenger.

[00:18:07] Speaker 01:
There is no shortage of ways that somebody could use a computer to generate roof reports.

[00:18:12] Speaker 01:
This is a specific implementation that requires- It's up to us.

[00:18:16] Speaker 04:
It's up to the court to-

[00:18:17] Speaker 04:
discern what's the abstract idea here.

[00:18:21] Speaker 04:
And if it strikes me that the abstract idea, potential abstract idea is producing a roof estimate report based on looking at pictures of the roof, then I can't conclude that in an opinion.

[00:18:39] Speaker 01:
Well, Judge Chen, I mean, we do operate in an adversarial process.

[00:18:43] Speaker 01:
And just because the court is aware of some piece of prior art that thinks renders a claim obvious as a matter of law, it would be sort of unusual for the court to reach out and say that the claim is invalid on this basis.

[00:18:54] Speaker 01:
Typically, it depends on

[00:18:55] Speaker 01:
particular records.

[00:18:56] Speaker 01:
And one thing here on the particular record that's important is the 436 claim.

[00:19:02] Speaker 01:
It is not about using photographs in the abstract.

[00:19:04] Speaker 01:
It's not about even using non-stereoscopic photographs in the abstract.

[00:19:08] Speaker 01:
It's about using non-stereoscopic photographs which have to be specifically defined.

[00:19:13] Speaker 01:
There has to be a top-down planar view.

[00:19:15] Speaker 01:
And there has to be an oblique view.

[00:19:17] Speaker 01:
So not parallel, not perpendicular, but oblique.

[00:19:21] Speaker 01:
That is an inventive choice.

[00:19:23] Speaker 01:
That is a specific decision of the type of photographs to use.

[00:19:27] Speaker 01:
And then they also, and I think that Judge Chen, you pointed to this, the photographs also then have to be correlated.

[00:19:34] Speaker 01:
That is also a specific inventive choice here.

[00:19:38] Speaker 01:
And don't take my word for it.

[00:19:39] Speaker 01:
Look at exactly what their own expert said.

[00:19:43] Speaker 01:
On direct, at appendix 17,625, and he said it again at appendix 8,290, their expert pointed to a different system and said it doesn't, quote, correlate the first and second images.

[00:19:56] Speaker 01:
It was a different way of creating a 3D model of roofs that do not involve correlation, end quote.

[00:20:04] Speaker 04:
I'm not sure I understand really what you think correlate means as it's used in the claim.

[00:20:11] Speaker 04:
Correlate could arguably be just a very generic word for a generic concept.

[00:20:18] Speaker 01:
Well, Judge Chin, the patent here recites specific steps, just like the patent in FinJohn that this court upheld as eligible.

[00:20:28] Speaker 01:
The FinJohn claims that a method comprising receiving by an inspector a downloadable, generating a security profile that identifies suspicious code in the received downloadable, and linking the security profile to the downloadable.

[00:20:40] Speaker 01:
That satisfied the 101 how inquiry.

[00:20:44] Speaker 01:
Well, it's the same how inquiry here.

[00:20:47] Speaker 01:
that the user selects two photographs for the 436 pattern, two specific types of photographs.

[00:20:55] Speaker 01:
Again, they have to be top-down and oblique.

[00:20:59] Speaker 01:
Then it has to be correlated to a particular point.

[00:21:02] Speaker 01:
Then, yes, it's true.

[00:21:03] Speaker 01:
In order to generate a three-dimensional model, math has to be used.

[00:21:07] Speaker 01:
But that makes this case indistinguishable from Thales.

[00:21:10] Speaker 01:
As the court said there, quote, that a mathematical equation is required to complete the claim method and system

[00:21:15] Speaker 01:
doesn't doom the claims to abstraction at page 1349.

[00:21:19] Speaker 01:
And what you have here is essentially the same thing there.

[00:21:22] Speaker 01:
The use of mathematical equations is just a consequence of the arrangement, in that case, of the sensors and the unconventional choices.

[00:21:30] Speaker 01:
Here, the unconventional choice was the use of these particular types of photographs

[00:21:37] Speaker 01:
And then as a result, what happens in sales is that you would tabulate the position and orientation information from the resulting relationship.

[00:21:47] Speaker 01:
That's exactly what you have here, is that you have these unconventional choices to use specific types of aerial photographs in a specific way.

[00:21:55] Speaker 01:
And yes, there is an application of mathematics, but it's no different than the application of mathematics in Thales, or in Diamond versus Deer, or in Cardionet, or frankly even in McRoe.

[00:22:06] Speaker 01:
And there's certainly no concern about preemption here, because again,

[00:22:10] Speaker 01:
And preemption, as the Supreme Court said in Alice, that is the concern that undergirds the 101 jurors.

[00:22:16] Speaker 04:
I don't think you had an opportunity in your red brief to address you versus Apple.

[00:22:23] Speaker 01:
Do you want to take a second on that?

[00:22:24] Speaker 01:
I appreciate you raising that one.

[00:22:26] Speaker 01:
You versus Apple.

[00:22:28] Speaker 01:
fits the classic case that this court has dealt with in in the minor run of cases what you have is the mere computerization conventional well-known techniques in the field and the field there uh... was was of of photography and it was not only about it but it was not disputed the other side conceded that the use of what that is the the other side in in i guess it would be like you conceded uh... that in you uh... the that uh...

[00:22:57] Speaker 01:
that the use of one photograph to enhance another photograph was a well-known conventional technique.

[00:23:03] Speaker 01:
And so all you versus Apple involved was computerizing it.

[00:23:08] Speaker 01:
And the thing that I think is fundamental here, the claims do not claim generically collecting roof dimension data from any source.

[00:23:15] Speaker 02:
These are not claims that say, well, isn't the use of the computer to correlate images well-known?

[00:23:21] Speaker 01:
Well, Judge Clevenger.

[00:23:22] Speaker 02:
And that's what's happening in your patent.

[00:23:23] Speaker 01:
Well, it's exactly what was happening in Thales.

[00:23:26] Speaker 02:
Why doesn't that lie to you?

[00:23:28] Speaker 02:
I'm sorry?

[00:23:28] Speaker 02:
Why doesn't that lie to you?

[00:23:30] Speaker 02:
Because you're used to the computer to massage the images.

[00:23:36] Speaker 02:
Whether or not the image is stereoscopic or not stereoscopic is irrelevant to the correlation.

[00:23:42] Speaker 01:
Respectfully, Judge Clevenger, the use of the computer is not what we... Isn't that true?

[00:23:48] Speaker 02:
whether the computer is massaging stereoscopic or non-stereoscopic photos is irrelevant because the software conventionally can do either.

[00:23:56] Speaker 01:
Well, I disagree that it is irrelevant.

[00:23:59] Speaker 02:
I think one of the things here that with respect to the fact whether that it doesn't make any difference.

[00:24:05] Speaker 01:
Well, I think respectfully, I think what you're asking doesn't make any difference to the 101 inquiry because the issue in you versus Apple was not whether or not it was conventional to use computers.

[00:24:17] Speaker 01:
It's whether or not it was conventional to enhance one image with another.

[00:24:22] Speaker 01:
And case after case after case in this court, and frankly, it's what the Supreme Court was concerned about in Alice and in Bilsky, is where you're computerizing things that were well-known techniques in the field.

[00:24:34] Speaker 01:
And this court has looked at that at step one.

[00:24:37] Speaker 01:
For example, in Cardionet, the court said, the traditional process and the claimed method produce results in fundamentally different ways.

[00:24:44] Speaker 01:
And in McRoe, it's remarkable for Zach Ware to say, if that's their best case, they really are in trouble.

[00:24:49] Speaker 01:
Because the point in McRoe,

[00:24:51] Speaker 01:
there was, quote, no evidence that the process previously used by animators is the same as the process in the claims there.

[00:25:01] Speaker 01:
That's what you have.

[00:25:02] Speaker 04:
What if, hypothetically, for this correlate-to-images invention, it could all be done by pen and paper?

[00:25:11] Speaker 04:
Like, let's say, for example, someone was looking at two photos, aerial photos of a roof, and

[00:25:20] Speaker 04:
Person number one said, boy, it sure would be great to know what the pitch is of this roof.

[00:25:26] Speaker 04:
And then guy number two said, oh, I can show you how to do that.

[00:25:30] Speaker 04:
Here, just give me the two pictures, and let me use some math.

[00:25:36] Speaker 04:
Let's just say Pythagorean theorem for now.

[00:25:39] Speaker 04:
And I can do some calculations in comparing the two images, and I can get you the pitch of the roof.

[00:25:47] Speaker 04:
Well, do you think that would be patent-eligible?

[00:25:50] Speaker 01:
So Judge Chin, I think there are a number of questions one would have to answer, including whether or not there's anything inventive about selection of photographs in the first place, which there absolutely is in the 436 patent.

[00:26:07] Speaker 01:
And what I think is undisputed here and can't be disputed is nobody in the industry was doing roof measurements using that type of technique.

[00:26:18] Speaker 01:
And so what you don't get.

[00:26:20] Speaker 03:
I just want to get a clearer answer than at least I heard to the question I asked before, which is related to this.

[00:26:28] Speaker 03:
Was anybody outside the roofing industry

[00:26:32] Speaker 03:
using non-stereoscopic images to calculate areas of surfaces shown in the images.

[00:26:42] Speaker 03:
Well, Judge Toronto, I'll answer.

[00:26:44] Speaker 03:
I don't think the patent says anything.

[00:26:48] Speaker 03:
The patent says this must be known because it says, go find the textbooks.

[00:26:56] Speaker 03:
They show you how to do it.

[00:26:58] Speaker 03:
And the only thing that's new here is we're going to do it with roofs.

[00:27:01] Speaker 01:
I don't think that's quite a fair characterization of the patents.

[00:27:07] Speaker 01:
This isn't just a field of use restriction.

[00:27:10] Speaker 01:
I think they're saying that the math that one would use, he's not inventing new math.

[00:27:15] Speaker 01:
He's not coming up with a new mathematical equation.

[00:27:17] Speaker 01:
And that's the point.

[00:27:18] Speaker 03:
I stepped on my first question.

[00:27:20] Speaker 03:
What is the answer to my first question?

[00:27:21] Speaker 01:
So the answer to your first question is, I'm not aware of anything in the art at the time that showed that it was conventional.

[00:27:28] Speaker 01:
And I don't just mean in the field of roof estimation, but that it was conventional to use these types of photographs to determine these types of specific types of measurements.

[00:27:38] Speaker 01:
Yes, photogrammetry had been used to be able to develop maps and other types of spatial relationships.

[00:27:46] Speaker 01:
But you can be sure.

[00:27:47] Speaker 01:
that if it was, you would have read about it in their brief.

[00:27:50] Speaker 01:
But the only thing that they identify in their brief to suggest that there's something conventional here is the passage from the patent that does say that he's not inventing new math, that he is using mathematical equations.

[00:28:03] Speaker 01:
But he is just like in Thales.

[00:28:05] Speaker 01:
There was not new math that was being invented.

[00:28:08] Speaker 01:
math was being applied to a new arrangement.

[00:28:11] Speaker 01:
In that case, it was a new arrangement of conventional sensors.

[00:28:15] Speaker 01:
In this case, it is a new arrangement that is the arrangement of using particular types of photographs, and it is to use them to obtain particular type of information, which makes this, again, fundamentally different.

[00:28:28] Speaker 01:
One of the things that the court looked at in electric power group, for example,

[00:28:31] Speaker 01:
is whether or not it is a new source of information.

[00:28:35] Speaker 01:
This isn't the type of claim that goes to collecting any data from any source and then doing any type of analysis.

[00:28:42] Speaker 04:
Would the collection of a new source of information have made a difference in electric power group?

[00:28:47] Speaker 04:
Well, if you look at the court's opinion, particularly at page 1355, in this case- You made an observation that this isn't even asking for new sources of information.

[00:29:00] Speaker 01:
Well, I certainly don't read that as being sort of a throwaway line.

[00:29:05] Speaker 01:
I won't presume to get into the court's head about that or what this court said in interval licensing, which was to similar effect at page 1348.

[00:29:14] Speaker 01:
But it certainly suggests that what you have here is something that is different.

[00:29:20] Speaker 01:
from most of the cases.

[00:29:22] Speaker 01:
I apologize, Judge Toronto.

[00:29:23] Speaker 01:
I see I'm well past my time.

[00:29:26] Speaker 01:
Start to finish up, please.

[00:29:27] Speaker 01:
Thank you, Judge Toronto.

[00:29:29] Speaker 01:
What you have here is nothing resembling what the Supreme Court was worried about in Alice or Bilsky.

[00:29:36] Speaker 01:
And it is because we're not talking about fundamental economic techniques.

[00:29:39] Speaker 01:
We're not talking about methods of ordering human activity.

[00:29:43] Speaker 01:
And we're not talking about computerizing

[00:29:45] Speaker 03:
conventional routine techniques that were already well known in the field, which is what this court in SRI... Why are you not talking about analyzing information here, pictorial information?

[00:29:58] Speaker 03:
Well, Judge Taranto, I mean... This starts with information, a picture, and it ends with an analysis of that put into a report combined with prices for possible human transactions of a roofing deal.

[00:30:13] Speaker 01:
Yeah, so Judge Torrance, I mean, I think this court has warned away from that level of generalization.

[00:30:19] Speaker 01:
I mean, the collection, analyzing, reporting syllogism,

[00:30:24] Speaker 01:
is frankly in danger of becoming the new machine or transformation test if the court does the kinds of things that the court weren't warned about in Enfish, where it is at such a high level abstraction.

[00:30:36] Speaker 01:
I mean, you could say that my tie is just information, what color it is, and it's just processed by an optical sensor.

[00:30:44] Speaker 01:
And this court in both Enfish at page 1339 and McRoe at page 1315

[00:30:50] Speaker 01:
It made clear that the fact that the output may be information, it may be intangible, does not render it to be patent ineligible.

[00:30:58] Speaker 01:
And that would be consistent with Judge Rich's opinion for the en banc court back in Enri Alipat, 33 F.

[00:31:07] Speaker 01:
3rd, 1526, which addressed some analogous situations and found that the claims were patent eligible.

[00:31:16] Speaker 01:
I'm happy to answer any questions the court may have on this or any of the other issues in the case.

[00:31:20] Speaker 01:
These are the types of claims that, in the words of Diamond versus Deere, are directed to performing a function that the patent laws were designed to protect.

[00:31:31] Speaker 01:
And I urge the court to affirm the judgment bullet.

[00:31:34] Speaker 03:
Thank you, Mr. Oakley.

[00:31:35] Speaker 01:
Thank you, Judge Taranto.

[00:31:48] Speaker 03:
Talk to me about fails.

[00:31:51] Speaker 00:
Your honor, fails is a case where you've got an advance over an existing technological process to take specific sensors, the inertial sensors.

[00:32:02] Speaker 04:
It's not the configuration of sensors, right?

[00:32:05] Speaker 00:
Well, it's a particular kind of sensor to start with.

[00:32:07] Speaker 00:
It's not any sensor, it's an inertial sensor.

[00:32:09] Speaker 00:
It's to put them in a particular place.

[00:32:11] Speaker 04:
Maybe here there's a configuration of

[00:32:16] Speaker 04:
different angles of collecting and sensing information.

[00:32:20] Speaker 00:
Your Honor, I think it's an excellent contrast because here the claim, claim two, says any course two corresponding points.

[00:32:28] Speaker 00:
You know, if they pick one vertex

[00:32:30] Speaker 00:
And limited to that, it might be closer to fail.

[00:32:32] Speaker 04:
I guess what I meant was the top plan view and then the oblique view.

[00:32:36] Speaker 04:
And so therefore the analogy would be you've got your own different unique configuration of sensors detecting the information down below of the object from different angles.

[00:32:53] Speaker 00:
We have aerial photographs.

[00:32:55] Speaker 00:
Basically, aerial means above.

[00:32:58] Speaker 00:
There's basically two perspectives.

[00:32:59] Speaker 00:
You can have directly above, which is called a top plan, or you have oblique, which is everything else.

[00:33:04] Speaker 00:
The selection of those two things is hardly a limitation, Judge Chen.

[00:33:08] Speaker 00:
It is simply describing

[00:33:09] Speaker 00:
Two different views of the roof, which is what they claim of course by the way the pitch determination marker claim only involves one image So we should be clear on that there are not two images in the Pitch determination marker claims mr. Quinn pretty much focused just on the two image so on the two image point you know I heard my friends say that the unconventional aspect of these was the selection of the top plan and the oblique claim which is to say if you don't have stereoscopic images which are taking a wee bit apart by a special camera and

[00:33:38] Speaker 00:
You're taking any two aerial images.

[00:33:40] Speaker 00:
So they have claimed the world of aerial images for the purposes of measuring roofs.

[00:33:45] Speaker 00:
That is not, by the way, a technological process.

[00:33:47] Speaker 00:
That is a human endeavor that has been undertaken since we've had architects and builders.

[00:33:55] Speaker 00:
One could claim a technological solution to it, but these patents do not.

[00:33:59] Speaker 00:
They simply describe the possibility.

[00:34:02] Speaker 00:
You know, Mr. Aucoin brought up electric power.

[00:34:04] Speaker 00:
At the end of that case, the court says there's an important and critical difference between a concrete solution to a problem and the idea of a solution to the problem.

[00:34:13] Speaker 00:
And these claims describe the idea of a solution, not the actual solution, which brings me back to Thales, Judge Toronto, which describes an actual solution.

[00:34:22] Speaker 00:
Take two inertial sensors, place them in these particular places.

[00:34:26] Speaker 00:
Yes, there's math, but that's a step toward the result, which is not claimed functionally, as these claims are, but rather practically and technologically.

[00:34:36] Speaker 00:
The Thales claim describes an invention.

[00:34:39] Speaker 00:
In fact, it's a device.

[00:34:40] Speaker 00:
Here we have an idea.

[00:34:42] Speaker 00:
And I think that's a very nice divide between these claims.

[00:34:46] Speaker 00:
These are the kinds of claims that say, I have a great idea.

[00:34:48] Speaker 00:
I can measure a roof using pictures.

[00:34:51] Speaker 00:
and the bales claims which say i have a great idea i can measure the the relative motion and i'm gonna do it in this particular way you disclose that to the world of it satisfies all the requirements of patentability you can get it judge chen you ask my friend about the correlation step i would simply refer the court to appendix five fifteen column five which was the eight four oh patent and and and it's three seventy two seventy three columns six and seven which is four three six patent which says in so many words that it's done by the

[00:35:17] Speaker 00:
algorithms known in the art, textbooks, learned treatises, and so forth, which brings me to, Judge Toronto, your question, was this known in the art?

[00:35:25] Speaker 00:
Of course this was known in the art.

[00:35:27] Speaker 00:
This is not a mystery.

[00:35:29] Speaker 00:
There are chapters and treatises and books all about this thing.

[00:35:33] Speaker 00:
But, and I want to make this point important and I hope to end on this, let's suppose Mr. Pershing, sitting in his backyard taking a picture of his wife's birdhouse, was the very first person in the world to come up with the idea of

[00:35:46] Speaker 00:
measuring a roof from those photographs.

[00:35:48] Speaker 00:
These claims are still ineligible.

[00:35:50] Speaker 00:
This is not an obviousness case.

[00:35:52] Speaker 00:
This is an abstract idea case.

[00:35:54] Speaker 00:
He did not claim a particular

[00:35:57] Speaker 00:
concrete, specific, technological solution that meets the requirements of Section 101 and this court's precedence, this is simply the idea.

[00:36:06] Speaker 00:
You know, I said these are pre-Bilski claims, but these were bad under O'Reilly versus Morse.

[00:36:11] Speaker 00:
This is claiming, like the eighth claim in O'Reilly, this is claiming the idea of roof measurement, the idea of taking photographs and translating them into measurements.

[00:36:21] Speaker 00:
That can't be done.

[00:36:23] Speaker 00:
Other things in this field, of course, could be patented.

[00:36:25] Speaker 00:
But if you look at the claims, and I said I would be last, but I apologize.

[00:36:35] Speaker 00:
My friends accused me of oversimplifying the claims.

[00:36:40] Speaker 00:
I think it's extremely important, Your Honor, to look at the patent.

[00:36:43] Speaker 00:
I think the Morse Claim 8 is a pretty big... Morse Claim 8 is pretty darn big, but if you look at Figure 8 in the 836 patent, which is Appendix 368, which is the inventor's own flowchart of how the correlation claim works, it sure looks a lot, Judge Chen, like Morse's Claim 8.

[00:37:02] Speaker 00:
It basically says...

[00:37:04] Speaker 00:
This is the 436, the appendix 368, figure 8.

[00:37:14] Speaker 00:
Receive a first and second aerial image, correlate them, generate a model, run a report.

[00:37:22] Speaker 00:
The flowchart in the patent is not an invention.

[00:37:27] Speaker 00:
I understand the claims have a few more words in them, and we can talk all about that, but the basic logic flow of these patents, and by the way,

[00:37:34] Speaker 00:
For the pitch determination marker, it's figure 10 in the 840 patent at Appendix 511.

[00:37:39] Speaker 00:
And for the correspondence patents, which we haven't talked at all about, it's figure 11 in the 840 at Appendix 512.

[00:37:45] Speaker 00:
These flow charts show exactly the basic ideas that are being claimed.

[00:37:50] Speaker 00:
They correspond to the claim language, and they confirm that there is absolutely nothing patentable in any of these patents.

[00:37:57] Speaker 03:
Thank you, Mr. Perry.

[00:37:58] Speaker 00:
Thank you, Your Honors.

[00:37:59] Speaker 03:
Thanks.