[00:00:00] Speaker 00: Okay, let's move on to our first case of the day. [00:00:06] Speaker 00: Our first case is 20-1531, ImageQuicks versus Snapeasy. [00:00:10] Speaker 00: Mr. Cohen, why don't you go ahead and proceed? [00:00:12] Speaker 03: Thank you, and good morning, Your Honors. [00:00:17] Speaker 03: David Cohen on behalf of the appellants, Snapeasy. [00:00:20] Speaker 03: The fundamental question today is, is Snapeasy's claimed invention within the scope of patentable subject matter? [00:00:28] Speaker 03: And the answer is yes. [00:00:30] Speaker 03: The 506 patent, 8794506, does not claim anything as abstract as organizing photographs or anything so nebulous. [00:00:40] Speaker 03: Its claims require particular application. [00:00:42] Speaker 03: They all require embedding a coded component with a machine-readable element in a photograph and using machine image processing to associate other photographs with it. [00:00:54] Speaker 03: The claim technology is a specific, concrete, technical advance [00:01:00] Speaker 03: its advantages, the advantages that the patent provides come from its solution. [00:01:04] Speaker 03: It doesn't claim a mere result. [00:01:07] Speaker 03: As a result, the claims are within the scope of patent law. [00:01:11] Speaker 00: Counsel, this is Judge Moore, and it may be that the district court's characterization of the abstract idea is broader than the claimed invention. [00:01:24] Speaker 00: But why isn't the abstract idea still just organizing photos with a divider? [00:01:30] Speaker 00: So the limitation I would be adding to the district court's abstract idea is just the use of a divider, which is the coded component, for example. [00:01:41] Speaker 00: So why isn't that still nonetheless an abstract idea? [00:01:46] Speaker 03: Because the claims don't recite [00:01:50] Speaker 03: organizing photos with a divider. [00:01:52] Speaker 03: There may be hundreds of ways of organizing photos with a divider. [00:01:55] Speaker 03: In fact, in our opening brief, we provided a baker's dozen examples of ways of sorting photos that don't infringe the claims. [00:02:06] Speaker 03: They specifically require a coded component that comprises a machine-readable element that's a physical concrete element embedded within particular photographs and then a data processing system [00:02:20] Speaker 03: that's configured to process them to identify those with the coded components and associate other photographs to it. [00:02:27] Speaker 03: And part of what made this an advance is that nothing like it existed previously. [00:02:35] Speaker 02: Mr. Cohen, when you talk about a coded component, are you talking about something like a barcode or really an alphanumeric string of characters? [00:02:48] Speaker 02: That's correct. [00:02:49] Speaker 02: The coded component, please. [00:02:53] Speaker 02: There's nothing about the coded component itself that is unique. [00:02:58] Speaker 02: It's using things that already existed as codes, as identifiers, as labels, and that would be things like barcodes or a string of letters and numbers that can be read by computers through [00:03:17] Speaker 02: Optical Character Recognition Technology, OCR. [00:03:21] Speaker 02: Am I right about all this? [00:03:23] Speaker 02: You're correct about all that. [00:03:25] Speaker 03: Okay. [00:03:25] Speaker 03: The coded component, yeah, I mean, it's, it's component and the key aspect is that it's machine readable and embedded in particular photographs. [00:03:34] Speaker 04: This is Judge Rainer, Counselor. [00:03:36] Speaker 04: Could the coded component consist of, say, a picture of one finger or maybe three fingers of a hand? [00:03:47] Speaker 03: Would that be a machine-readable element? [00:03:50] Speaker 03: There's nothing that would support that in the specification. [00:03:53] Speaker 03: The specification refers specifically to machine-readability. [00:03:57] Speaker 03: I'm asking whether that would be a machine-readable element. [00:04:01] Speaker 03: I don't believe so, Your Honor. [00:04:05] Speaker 03: Not using technology that was available when this was invented in 2009. [00:04:15] Speaker 03: Yeah, it refers to 1D or 2D barcode, the alphanumeric strings, the color code. [00:04:21] Speaker 03: It has to be designed for a data processing system to be able to recognize. [00:04:27] Speaker 03: And I don't think computers of the day were able to recognize how many fingers you're holding up. [00:04:39] Speaker 03: OK. [00:04:40] Speaker 03: But when it comes down to it, what [00:04:44] Speaker 03: That PZ invention disclosed was a better mousetrap. [00:04:49] Speaker 03: And yes, the coded component could be a barcode, say, that obviously existed. [00:04:58] Speaker 03: Because to invent a better mousetrap, you're using existing materials in a new way. [00:05:03] Speaker 03: You don't have to come up with new wood or a new way of bending wire to assemble them in a way that was [00:05:12] Speaker 03: Not only novel, but well within the scope of patent law. [00:05:23] Speaker 03: Also, the coded component with this machine-readable element is a tangible object. [00:05:29] Speaker 03: You have to burn a photo, and you have to burn it into a photo, and we can show you how it's done. [00:05:36] Speaker 03: We've built it. [00:05:37] Speaker 03: You can put it in your hands. [00:05:38] Speaker 03: That's not abstract. [00:05:40] Speaker 00: Is that in the claims, like claim one? [00:05:42] Speaker 00: I don't see anything like that. [00:05:47] Speaker 03: Taking at least a first photograph of a coded component using a handheldable camera, the coded component comprising a machine-readable element. [00:05:58] Speaker 00: Yes, where in that is it explaining how you're going to burn the code? [00:06:04] Speaker 03: I'm sorry. [00:06:06] Speaker 03: colorful with my language, your honor, so taking at least a source photograph of the coded component. [00:06:11] Speaker 03: The specification is explicit in the text that this can involve, for example, taking a test shot, which is to say putting the coded component into the image of the photograph itself. [00:06:28] Speaker 03: That's what makes this different from what came before. [00:06:32] Speaker 03: Previous solutions required a separate record-keeping system. [00:06:36] Speaker 03: And the solution that SnapEasy's inventor came up with was to insert barcodes into photographic images themselves. [00:06:47] Speaker 03: Now somebody wouldn't have thought of that because there's no existing way, there was no existing way to read those codes in the photos. [00:06:57] Speaker 03: You'd have to print them out and scan them with a barcode scanner, say, if you're using a barcode. [00:07:06] Speaker 03: So they had to also come up with the idea of using photographic image processing to locate, identify, and then sort the photographs according to the coded components with its machine-readable element in the photo itself. [00:07:20] Speaker 04: So, Counsel, where's the technological improvement that you bring up? [00:07:28] Speaker 04: It's not in the coded element because you've already said, I mean, it can be a barcode. [00:07:34] Speaker 04: So you don't have a technological improvement there. [00:07:36] Speaker 04: Where is your technological improvement? [00:07:42] Speaker 03: It is embedding that coded component in the photograph with this machine readable element, and then coming up with a machine image processing system to identify it and associate other photographs with that coded component, with that machine readable element, and then organize the photos according to that association. [00:08:06] Speaker 02: I thought there was already equipment out there that could recognize things like barcodes. [00:08:13] Speaker 02: And there was already things like OCR. [00:08:17] Speaker 03: There were barcode scanners, absolutely. [00:08:19] Speaker 03: There was OCR. [00:08:22] Speaker 03: But there was not a barcode scanner in a photographic processing system. [00:08:29] Speaker 03: Because a barcode scanner, I don't know if you use them, [00:08:33] Speaker 03: Of course we do. [00:08:34] Speaker 03: We've all used a supermarket checkout barcode scanner. [00:08:38] Speaker 03: It isn't within a photo management system. [00:08:41] Speaker 03: It isn't within image processing systems. [00:08:47] Speaker 04: But that's what the grocery store barcodes do. [00:08:52] Speaker 04: They organize everything. [00:08:54] Speaker 04: I would imagine when I go check out and I'm doing a self-checkout and I run something through the barcode reader, [00:09:00] Speaker 04: There's something then that says, this is a vegetable, or this is a meat product. [00:09:07] Speaker 03: Correct. [00:09:08] Speaker 03: You've got a printed label on your... I'm sorry, I didn't mean to interrupt. [00:09:11] Speaker 03: No, go ahead. [00:09:13] Speaker 03: You've got a printed label on your fruit, say, and you run that... That's simply what a barcode does. [00:09:20] Speaker 04: How did you improve on that, other than the fact that you're relating that to a photograph? [00:09:26] Speaker 03: It's embedding it into a digital photograph, Your Honor. [00:09:31] Speaker 03: so that the photograph is the carrier, is its new data structure to carry the coded component and some machine readable element, for example, a barcode, for organizing the photos that it is part of now. [00:09:49] Speaker 03: So instead of having a separate barcode reader or a separate film management system or a shot counter or other way of identifying [00:10:01] Speaker 03: you know, which set of photos you're taking is now embedded within a photograph of the set of photographs and then... So, counsel, does a patent explain in technological terms how to embed the coded component? [00:10:17] Speaker 04: Show me where it does that. [00:10:21] Speaker 03: It specifically says taking at least the first photograph, the coded component comprising [00:10:29] Speaker 03: machine-readable element, and then second photographs that do not contain the coded component. [00:10:34] Speaker 04: Some contain it, some do not. [00:10:37] Speaker 04: Where are the technological terms that show how to embed the coded component? [00:10:43] Speaker 03: Embedded is in Claim 9, Your Honor, and I would go through the specification at more length, but my time for argument is up here. [00:10:54] Speaker 03: I'd like to reserve time for rebuttal. [00:10:56] Speaker 00: We'll give you your rebuttal time. [00:10:57] Speaker 00: Go ahead and answer Joe Terena's question, please. [00:10:59] Speaker 00: I also want to know, where in the spec is the technological mechanism for doing this embedding? [00:11:06] Speaker 03: For embedding? [00:11:09] Speaker 03: By taking a photograph, there are a series of options presented there. [00:11:15] Speaker 03: You can present a card, having... I'm sorry. [00:11:19] Speaker 00: I want to know where in the specification. [00:11:21] Speaker 00: I'd like you to point me to column and line number, where the technological [00:11:26] Speaker 00: advantage or improvement or method of achieving this is disclosed. [00:11:35] Speaker 03: Let me make sure I understand. [00:11:40] Speaker 03: I'm happy to point you to the patent, but you're asking for how to... What's the technology? [00:11:55] Speaker 04: What are the technological terms in the patent on how to embed the COTA component? [00:12:01] Speaker 04: Sure. [00:12:02] Speaker 03: If you look at column seven of the patent, line five, for example, the photographer can take out a prepared business card with an embedded COTA component, takes a picture of the card, gives it to the client. [00:12:17] Speaker 03: Alternatively, you can capture photographs of the COTA component displayed on a PDA. [00:12:23] Speaker 03: Alternatively, there's... [00:12:24] Speaker 00: This is Judge Moore. [00:12:25] Speaker 00: That just says, take out a prepared business card with an embedded component. [00:12:31] Speaker 00: You suggested, I thought, and perhaps I misunderstood in response to Judge Raina, that the act of embedding these components into the device was part of the patented improvement. [00:12:44] Speaker 00: So if I'm understanding your argument right, column seven is the result, right? [00:12:50] Speaker 00: Take a business card with an embedded component already. [00:12:54] Speaker 00: act of embedding? [00:12:57] Speaker 03: That is part of the preparation that the photographer can do. [00:13:01] Speaker 03: Perhaps it's more accurate to look at column 13 near the bottom where it says the process and apparatus by which a coded component may be embedded to each photograph. [00:13:15] Speaker 03: The code component is prepared, for example, on a card, or on a PDA, or on a device attached to the camera. [00:13:21] Speaker 00: I'm sorry, I don't know where you are. [00:13:23] Speaker 03: Column 13, can you please direct me? [00:13:24] Speaker 03: Column 13, the paragraph starting at line 61. [00:13:26] Speaker 03: In particular, the third line there, the code component is prepared and included in the field of view of the camera so it is part of the final image. [00:13:42] Speaker 03: That's the embedding that we're talking about. [00:13:47] Speaker 02: So taking a photo of the component? [00:13:51] Speaker 04: Yes. [00:13:53] Speaker 04: OK. [00:13:54] Speaker 04: And that can be a business card? [00:13:57] Speaker 04: It can be a business card that had the fingerprinted on it. [00:14:00] Speaker 04: Can it be somebody holding up two fingers in front of the camera and taking a picture of it? [00:14:06] Speaker 03: As I said before, I don't think two fingers would count as a machine-readable element, Your Honor. [00:14:13] Speaker 04: Well, I'll just use that example. [00:14:14] Speaker 04: How about four fingers? [00:14:16] Speaker 03: I don't think the number of fingers is the issue, Your Honor. [00:14:20] Speaker 03: It has to be a machine-readable element of a coded component. [00:14:24] Speaker 03: And I don't think two fingers would fall under the claim language of a coded component containing a machine-readable element. [00:14:35] Speaker 04: It seems to me it would, and that's why I have great concerns about the preemption risk in your argument. [00:14:47] Speaker 00: Okay, well why don't we go ahead and hear from opposing counsel and we'll give you your rebuttal time, Mr. Cohen. [00:14:54] Speaker 01: Thank you, Your Honor. [00:14:56] Speaker 00: Mr. Jones? [00:14:58] Speaker 01: Thank you, Your Honor. [00:15:00] Speaker 01: I want to address the two issues that Mr. Cohen discussed with the court and for which the court asked questions. [00:15:06] Speaker 01: And I will take the machine readable element first, only because that's the question and the discussion we ended on. [00:15:14] Speaker 01: So Judge Chen asked a question about using a barcode, and Snapeasy argues again here that the coded component is a machine-readable element. [00:15:25] Speaker 01: But what Snapeasy fails to tell the court here is that the coded component can also be human-readable. [00:15:33] Speaker 01: Now, the machine-readable component is the one structure that Snapeasy asserts as adding the inventive concept to the invention. [00:15:43] Speaker 01: But there's nothing in the specification or the claims that says that the coded component must be only machine readable and not also human readable, like the two or three fingers that was just proposed. [00:15:57] Speaker 01: In fact, Your Honor, if you'll go to column eight, lines 31 through 40 of the patent, and that's the discussion of the machine readable element and what it can be. [00:16:08] Speaker 01: The coded component is said to comprise a machine-readable and recognizable graphic image, and then there are four examples of that machine-readable graphic image provided. [00:16:20] Speaker 00: The four... Council, I'm sorry. [00:16:21] Speaker 00: What column and line number is it? [00:16:23] Speaker 01: I'm sorry. [00:16:24] Speaker 01: Column 8. [00:16:26] Speaker 00: Oh, jeez. [00:16:26] Speaker 00: Council, maybe hold the phone a little further away from your header now, because you're yelling at it. [00:16:32] Speaker 01: Oh, I'm sorry. [00:16:33] Speaker 01: Is that better, Your Honor? [00:16:35] Speaker 00: A little bit. [00:16:37] Speaker 01: Yeah, let me pick up the receiver. [00:16:39] Speaker 01: I'm sorry, I'm using a headset. [00:16:41] Speaker 01: Your Honor, is that better? [00:16:50] Speaker 00: Much better. [00:16:50] Speaker 00: Okay, thank you. [00:16:52] Speaker 01: Okay, I'm sorry. [00:16:53] Speaker 01: Column 8, line 31 is where the discussion begins. [00:17:01] Speaker 01: And this is the discussion of the coded component. [00:17:05] Speaker 01: And as you can see, the coded component is said to comprise a machine-readable and recognizable graphic image. [00:17:12] Speaker 01: And then there are four examples of the machine-readable graphic. [00:17:16] Speaker 01: Well, there are more than four examples, but there are four examples that I want to focus on. [00:17:20] Speaker 01: There's a string of numbers, a string of characters, a color code, and an arrangement of colors. [00:17:28] Speaker 01: Now, Your Honors, obviously all of those items are human readable as well as machine readable. [00:17:36] Speaker 01: Numbers, characters, and colors can be read by both a machine and a human. [00:17:41] Speaker 01: So when one of those graphic images is employed in the method or the system, a machine or a human could perform all of the organizational steps that are cited in the claims. [00:17:53] Speaker 01: And this is particularly true, and this is where I want to take the court next, [00:17:57] Speaker 01: with respect to all of the method claims, where those claims do not require a computer to perform the method steps. [00:18:05] Speaker 01: There's no machine imagery actually required by those claims. [00:18:10] Speaker 01: And I'd like to take the court through the groups of claims here. [00:18:13] Speaker 01: There are three groups of claims in the SnapEasy patent. [00:18:17] Speaker 01: And you heard SnapEasy say that the claims require using machine imagery and using machine imagery processing. [00:18:26] Speaker 01: But Your Honors, that is simply not in the claims. [00:18:28] Speaker 01: Now, Peasy fails to read and understand its own claims and argues concepts that are not recited in the claims themselves. [00:18:36] Speaker 00: Well, counsel, assume I don't agree with you since claim one speaks to machine readable element and a data processing system. [00:18:47] Speaker 00: So suppose I were to say at least some of the claims [00:18:53] Speaker 00: are tied to a computer system. [00:18:55] Speaker 00: Do you really want me to be parsing these claims and say, okay, well, the ones that are clearly tied to a computer system are good to go, but the ones that maybe don't have the machine-readable element in them aren't? [00:19:10] Speaker 00: I mean, what is your response? [00:19:12] Speaker 01: No, Your Honor. [00:19:13] Speaker 01: Of course, I don't want you to do that. [00:19:16] Speaker 01: Your Honor, if the claims are read as being tied to a data processing system, which I believe is incorrect, and I'll take you through that in a moment, but if they are, then the data processing system does nothing more than speed up a manual human activity of organizing photos. [00:19:41] Speaker 01: Just as was stated earlier, this is simply a patent. [00:19:45] Speaker 01: I think, as you stated, Judge Moore, [00:19:46] Speaker 01: This is simply a pattern where the abstract idea is organizing photos using a divider, either at the beginning of the set of photos or at the end of the set of photos. [00:19:58] Speaker 01: And that is something that has been done for years and years by a human. [00:20:03] Speaker 01: And all this process does is speed up, and it says this in the specification, the process is meant to speed up the process [00:20:14] Speaker 01: and allow the photographer to take more pictures and not waste his or her time with having to keep track of those pictures. [00:20:23] Speaker 01: In other words, the photographers time is freed up. [00:20:26] Speaker 01: It has nothing to do with a technological solution to a technological problem. [00:20:31] Speaker 01: So obviously, even if there is a machine readable component, and again, the machine readable component does not mean that it cannot be human readable. [00:20:41] Speaker 01: So this is really a process that's been practiced for years and years and years. [00:20:46] Speaker 01: And the only part that may not have been practiced is the fact that it's now done by a computer instead of by a human. [00:20:55] Speaker 01: Now, looking at the groups of claims, however, Your Honor, if you look at the first group of claims, [00:21:01] Speaker 01: 1 through 8 and 20, there are three action steps set forth. [00:21:07] Speaker 01: Photographs are taken with a camera. [00:21:09] Speaker 01: Some of the photographs have a coded component in them. [00:21:13] Speaker 01: Some of them don't. [00:21:15] Speaker 01: The second action step is sending the taken photographs to a data processing system. [00:21:23] Speaker 01: And the third step is then associating the uncoded photographs with a coded photograph. [00:21:28] Speaker 01: But contrary to what Stapisi would have this court believe, nothing in these claims requires that a data processing system ever actually use the coded component to do anything. [00:21:42] Speaker 01: There's not a word in this set of claims about using the coded component at all. [00:21:48] Speaker 01: If you look carefully at the claim language in claim one, [00:21:52] Speaker 01: The associating step merely requires that uncoded photographs be associated with the machine-readable component of a coded photograph. [00:22:02] Speaker 01: The claims do not require that a machine, such as a computer or a data processing system, do that associating. [00:22:10] Speaker 01: In these claims, the associating step is merely the organizing of human activity, which can be performed by a human without the use of any machine. [00:22:19] Speaker 00: But if the council, the claim says wherein the data processing system is configured to process the photographs and associating the one or more second photographs as a machine readable element, are you saying the and breaks it up and it's no longer the data processing system that's doing the associating? [00:22:40] Speaker 01: Your Honor, well, I don't know which one it is. [00:22:44] Speaker 01: I believe the and does break it up and go back to a separate method step. [00:22:53] Speaker 01: But regardless, just because a device is configured in a method claim to do something does not mean that the step actually is performed. [00:23:04] Speaker 01: They have to draft their claims correctly. [00:23:07] Speaker 01: Either it's a method step [00:23:08] Speaker 01: or it's a means plus function step, which is President claims 17 through 19. [00:23:17] Speaker 01: You can't have it both ways. [00:23:18] Speaker 01: It either has to be a structural limitation, in other words, something is configured to do something, or it has to be that an action is taken. [00:23:29] Speaker 01: And again, it's unclear here which way it is, but regardless of which way it turns out to be, [00:23:37] Speaker 01: this claim still is not set forth patent eligible subject matter because if the and breaks it an association can be done by a human instead of a data processing system then the data processing system has no action doesn't take any action in the set of claims that start with method claim one [00:24:02] Speaker 00: The only thing that the data process... Is there some embodiment in the specification which indicates that this sorting and associating is being done by a human and not being done by a computer or a data processing system? [00:24:18] Speaker 00: Is there something in the spec that supports your idea that these claims are broad enough to include human processing? [00:24:26] Speaker 01: There's nothing specific in the specification, Your Honor, and obviously there wouldn't be, because if they had set that forth in the specification, then these claims clearly would not be patent-ineligible. [00:24:38] Speaker 01: But that's not what's necessary to be done to understand a patent-ineligible claim. [00:24:45] Speaker 00: You have to look at the claim. [00:24:46] Speaker 00: Your problem, Counsel, as far as I'm concerned, is this spec talks entirely about a computer system that's going to do this processing. [00:24:56] Speaker 00: I mean, and the preamble of all of these claims are a method to improve automation of a photography process. [00:25:07] Speaker 00: And then the claims themselves talk about machine readable elements or data processing systems. [00:25:12] Speaker 00: I mean, I have to be honest. [00:25:13] Speaker 00: I think this is pretty much your weakest argument. [00:25:16] Speaker 00: And I'm genuinely surprised that this is where you begin because to me, I don't think it's a particularly strong argument to say that claim one [00:25:25] Speaker 00: can be performed by a human when it has automation, machine-readable elements, and data processing system, and where you want to break the and in a wherein clause, which makes no sense to me because I'm not sure what the associating is linked to if it's not linked to the data processing system. [00:25:43] Speaker 00: So, I mean, you're welcome to use your time however you wish if you want to divide the claims up or whatever, but I don't know. [00:25:50] Speaker 00: I have to be honest. [00:25:51] Speaker 00: I'm not persuaded that claim one, for example, [00:25:54] Speaker 00: isn't directed to a computerized method of achieving this process. [00:26:01] Speaker 02: Yeah, this is Judge Chen. [00:26:03] Speaker 02: I do think for the remainder of the oral argument, given that we're on a Rule 12 motion grant, why don't you just assume that this is a computer implemented claim and that we are talking about machine readable coded components and we are talking about sending over these [00:26:21] Speaker 02: photographs from a camera to a computer and that the computer, because of the coded component, the computer knows how to associate all the various photographs into different groups and classifications. [00:26:40] Speaker 01: Your Honor, thank you. [00:26:41] Speaker 01: Yes, I will. [00:26:41] Speaker 01: So assuming it is a computer-based invention, then the question becomes, [00:26:48] Speaker 01: whether or not there's any technological advance, any technological solution to a technological problem, and whether the use of a computer adds to the invention, provides the inventive concept. [00:27:03] Speaker 01: Your Honor, with respect to the improvement to automation, that may be stated in the claims, but if you look at the specification and read the specification, this is not a patent, this is not an invention [00:27:16] Speaker 01: about improving an already known automated process. [00:27:21] Speaker 01: It is simply about making a human activity performed by a computer. [00:27:30] Speaker 01: I understand the preamble to all the claims say improvement automation, but that's not what the specification says. [00:27:37] Speaker 00: In fact... Counsel, I think you have a fundamental misunderstanding. [00:27:40] Speaker 00: The claims are part of the specification, so you're wrong when you say it's not what the specification says. [00:27:47] Speaker 01: Understand, I apologize, Your Honor, you're right. [00:27:49] Speaker 01: They are part of the specification. [00:27:51] Speaker 01: But if you go back and look at the specification, it's clear that the specification says that the invention is a process of automating image management. [00:28:02] Speaker 01: If you look at column one, lines 14 through 15, and lines 20 through 21, the problem that's being addressed by the invention is identified. [00:28:12] Speaker 01: And it's identified as image management. [00:28:15] Speaker 01: And the patent explains that, quote, photographers have sought solutions to the image management issue, close quote. [00:28:22] Speaker 01: And it says that it describes how photographers have solved the problem by manually managing images and says that these manual processes do not support automation. [00:28:34] Speaker 01: Then further in column one, lines 33, 36, [00:28:38] Speaker 01: the specification says that the invention provides processes to automate the photography business. [00:28:45] Speaker 01: Your Honor, this is not a patent about improving an already known process of automation, and if they develop some computer software or some hardware that actually improved an automation process, then that might be patent eligible. [00:29:02] Speaker 01: But here, Your Honor, all that they are doing [00:29:05] Speaker 01: is taking a human process, the human process of organizing photographs using a divider, using a divider picture, using a picture with somebody holding up two or three fingers or a business card or in the example we gave in our brief, the old grade school example of class photographs where the first picture taken is of the entire class and it says Mrs. Smith, [00:29:34] Speaker 01: third grade class and then all the photos after that are photographs with individuals in Mrs. Smith's third grade class. [00:29:43] Speaker 01: That's what this is. [00:29:45] Speaker 01: This is a patent about computerizing, automating a already known human organizing activity. [00:29:55] Speaker 01: And that's what this court and the Supreme Court have said is a patent ineligible idea. [00:30:02] Speaker 01: Any time you merely use a computer to speed up and automate, it's not a patent eligible idea. [00:30:12] Speaker 01: Thank you, Your Honors. [00:30:14] Speaker 00: Okay, thank you. [00:30:14] Speaker 00: Mr. Cohen, you have some rebuttal time. [00:30:20] Speaker 03: Thank you, Your Honor. [00:30:22] Speaker 03: Council for ImageQuicks is keen to say that organizing photos is an already known activity. [00:30:29] Speaker 03: But there's no evidence that before this disclosure, anyone ever organized photos using the systems and methods that were disclosed and claimed here. [00:30:41] Speaker 03: Organizing photos, even organizing photos with dividers might be abstract, but we're not claiming anything nearly that broad. [00:30:50] Speaker 03: And even if there were a manual analog, that wouldn't make the claims abstract or take it out of the realm of patentable subject matter. [00:30:59] Speaker 03: If you look at data engine technologies, the spreadsheet tab interface clearly refers back to tabs that we're used to using in Pentaflex folders in our filing systems. [00:31:11] Speaker 03: But you apply it in a new manner, in a new context, using new technology, and it's certainly within the realm of patentable subject matter. [00:31:20] Speaker 03: So yes, there were previous approaches. [00:31:23] Speaker 03: There's parallel data systems. [00:31:25] Speaker 03: Photographers solve their image management problems manually by using a picture counter or separate memory card storage or film or folders for each job, and those weren't satisfactory. [00:31:36] Speaker 00: Counsel, how do you distinguish your case from PLI technologies? [00:31:42] Speaker 03: Thank you, Your Honor. [00:31:43] Speaker 03: PLI had extraordinarily broad claims. [00:31:47] Speaker 03: The claims on its face, said the court, the claims drawn to the concept [00:31:53] Speaker 03: of classifying an image and storing the image based on its classification. [00:31:58] Speaker 03: The claims there were far broader. [00:32:01] Speaker 03: The court, in that case, noted that attaching... Is that what the claim actually said? [00:32:08] Speaker 03: Yes, Your Honor. [00:32:09] Speaker 03: Quoting the case, page 611. [00:32:14] Speaker 02: Or is that what we concluded that the claim was drawn to? [00:32:19] Speaker 02: I'm just trying to understand. [00:32:21] Speaker 02: I thought I heard you say that [00:32:23] Speaker 02: That was the actual claim language itself. [00:32:26] Speaker 02: I'm sorry, that's what the court described. [00:32:29] Speaker 02: I'd be surprised if the claim language was drawn to the concept of classifying an image. [00:32:34] Speaker 02: Yes, that was the court speaking. [00:32:37] Speaker 02: And I encourage you to review the claims. [00:32:39] Speaker 02: That was the court's conclusion. [00:32:40] Speaker 02: That wasn't the actual claim language. [00:32:42] Speaker 03: That was not the claim language. [00:32:43] Speaker 03: The claim language was much broader than what FPD has, though. [00:32:47] Speaker 03: And in particular, the court noted that [00:32:50] Speaker 03: there was first note that was without any claim that the invention reflected an invented solution to any problem, and it failed to provide any technical details. [00:33:01] Speaker 03: Its claims were in purely functional terms. [00:33:06] Speaker 03: And the 506 patent claims do recite a new physical combination of elements, and they do recite the technical details rather than functional results. [00:33:19] Speaker 03: The coded components with machine readable elements and the specifically configured processing systems that the 506 patent claims all require are not merely part of an environment in which photo organization operates. [00:33:33] Speaker 03: They're the crucial elements of the disclosed technology. [00:33:36] Speaker 03: They replace the traditional photographic sorting work at a photo shoot and provide the advantages. [00:33:47] Speaker 03: the photographer no longer had to bring a photo counter for each job or separate memory storage. [00:33:54] Speaker 03: They don't have to use a computer or barcode scanner at the job because they have a new data structure using the photographic film or digital processes themselves. [00:34:11] Speaker 03: That hadn't been done before. [00:34:14] Speaker 03: And when I talk about [00:34:18] Speaker 03: creating a better mousetrap. [00:34:21] Speaker 00: Well, when you say it hasn't been done before, wasn't it done in TLI? [00:34:24] Speaker 00: I mean, didn't they just have the classification information in TLI on each photo? [00:34:29] Speaker 00: Isn't that the big difference between the TLI invention and this invention? [00:34:35] Speaker 03: No, Your Honor. [00:34:36] Speaker 03: In TLI, they were just talking about attaching metadata to photos, dates and times associated with images. [00:34:42] Speaker 03: There was nothing about photographing the coded component. [00:34:48] Speaker 03: and using that as a storage medium. [00:34:50] Speaker 02: Mr. Cohen, this is Judge Chen. [00:34:52] Speaker 02: I was just flipping through the figures of your client's patent. [00:34:57] Speaker 02: And could you just explain really quickly what's going on in figures 9A and 9B? [00:35:02] Speaker 02: 9A looks like a stick figure and of a, I guess, a human, a stick figure human. [00:35:11] Speaker 02: And then it says Coded Component 900 next to it. [00:35:15] Speaker 02: Is that the first photo of the [00:35:19] Speaker 02: Yeah, group of photos that are getting grouped together. [00:35:23] Speaker 03: Yeah, that's correct, Your Honor. [00:35:28] Speaker 03: Figure 9A is an example, a pretty sketchily drawn one, of a photograph of a subject with a coded component. [00:35:41] Speaker 00: Is that the coded component itself, or is that... No, that's a schematic, Your Honor. [00:35:49] Speaker 03: That is described in column 14 of the patent. [00:35:57] Speaker 03: It says, in an aspect right at the top of the column, the subject may hold the coded component while the photograph is being captured by the photographer as illustrated in figure 9A. [00:36:07] Speaker 04: What does that mean, Counsel? [00:36:10] Speaker 04: Is that stick figure a coded component or not? [00:36:14] Speaker 03: No, Your Honor. [00:36:15] Speaker 03: The stick figure is an example of a subject [00:36:18] Speaker 03: who the client, the students say, who's being photographed. [00:36:26] Speaker 03: So as it goes on further in column 14, round line 10, it says, in a case of a post-photoshoot, individual or individuals being photographed may hold the coded component for a first test shot. [00:36:41] Speaker 03: All subsequent photographs would then be grouped with this coded component. [00:36:50] Speaker 04: This is just... This goes back to that preemption statement I made earlier. [00:36:58] Speaker 04: It seems to me that this patent would capture facial recognition technology. [00:37:05] Speaker 03: Absolutely not, Your Honor. [00:37:08] Speaker 03: Facial recognition is not... There's no coded component in facial recognition. [00:37:14] Speaker 03: There's no machine-readable element within a coded component. [00:37:18] Speaker 03: in facial recognition. [00:37:19] Speaker 03: In fact, that was one of the examples we provided in our opening brief. [00:37:24] Speaker 04: Wouldn't a person's face, the individuality, the uniqueness of the face, wouldn't that constitute a codic component? [00:37:37] Speaker 04: How is that different from a barcode? [00:37:41] Speaker 03: A barcode is, well, unless you've coded something into your face, [00:37:46] Speaker 03: according to the meaning of the specification of the 506 patent, and you haven't. [00:37:53] Speaker 03: The 506 patent requires a coded component, which can be decoded by the data processing system. [00:38:01] Speaker 03: For example, claim 10 requires determining what's in the coded component. [00:38:07] Speaker 03: It has to be a machine-readable element. [00:38:10] Speaker 03: Spatial recognition [00:38:13] Speaker 03: was not part of the disclosure of the 506 patent systems that can identify clients according to their faces. [00:38:24] Speaker 04: Yeah, I know that facial recognition is not disclosed in the patent, but it seems to me that there's no limitations in the patent that would preclude the potential for facial recognition to fall within the scope of these broad claims. [00:38:44] Speaker 03: I would caution, Your Honor, that these are not broad claims in the way that you're thinking, because a coded component that comprises a machine-readable element is basically distinguishable from a faith. [00:39:02] Speaker 04: Even if we look at exactly the column... Counsel, I say the broad claims because we've asked you several times to identify the technological terms. [00:39:12] Speaker 04: For example, [00:39:13] Speaker 04: of embedding. [00:39:15] Speaker 04: How is that done? [00:39:16] Speaker 04: What's the technological term in a patent or the written description that you would point to? [00:39:23] Speaker 04: And your failure to do that leads me to this conclusion that these are very broad claims. [00:39:32] Speaker 03: Your Honor, the embedding is performed by photographing a code, a component. [00:39:41] Speaker 03: It gets embedded from [00:39:43] Speaker 03: wherever it is originally displayed on a card, on a PDA, on a device attached to the camera, and gets embedded into the digital photographic image. [00:39:54] Speaker 03: I apologize if I thought that I had answered that question for you. [00:40:00] Speaker 03: That is the taking of the photo, and the specification refers to it as embedded a couple times. [00:40:07] Speaker 00: Okay, Council, unless anyone has any further questions, I think we have your argument under [00:40:12] Speaker 00: In this case, colleagues, any further questions? [00:40:17] Speaker 04: No. [00:40:18] Speaker 04: No. [00:40:19] Speaker 00: Okay. [00:40:19] Speaker 00: I thank both counsels for your arguments and this case is taken under submission. [00:40:24] Speaker 03: Thank you, Your Honor. [00:40:26] Speaker 03: The Honorable Court is adjourned until tomorrow morning at 10 a.m.