[00:00:07] Speaker 03:
Our next case is interactive wearables versus polar electro oi.

[00:00:15] Speaker 03:
2021, 1491, Mr. DiFincenzo.

[00:00:48] Speaker 04:
Good morning, Your Honors.

[00:00:51] Speaker 04:
The claims in this case pass both Alice step one and step two.

[00:00:58] Speaker 04:
Step one asks an important question.

[00:01:01] Speaker 04:
What are the claims as a whole directed to?

[00:01:06] Speaker 04:
And in particular in this case, representative claim 32.

[00:01:09] Speaker 02:
Can I clarify something on that?

[00:01:12] Speaker 02:
Because in your blue brief, in a footnote, you seem to concede that claim 32 is representative.

[00:01:19] Speaker 02:
But then you repeatedly point to the wirelessly coupled limitation that's in other claims.

[00:01:26] Speaker 02:
So is it representative or is it not?

[00:01:28] Speaker 04:
Wirelessly is required by claim 32, Your Honor.

[00:01:31] Speaker 04:
The wireless remote control, the last limitation.

[00:01:35] Speaker 04:
The one above it says, wearing the content player is a wearable content player configured to be coupled by a wireless remote.

[00:01:42] Speaker 04:
The district court found otherwise.

[00:01:44] Speaker 04:
but that's correct what's a wireless remote but it do you don't read that as differently than wirelessly coupled i don't read that differently that's a control that communicate both ways so i don't i don't think that has any bearing on the issue okay so you don't you don't see any difference between the two no there was no claim construction on it but if it's not wirelessly coupled it can't be a wirelessly wireless remote control it can't control the device requires to control the device

[00:02:14] Speaker 04:
So if we look at claim 32, is this claim on its face directed to an abstract idea?

[00:02:22] Speaker 04:
Now, you'll note right away it's not a software claim.

[00:02:25] Speaker 04:
It's not a method.

[00:02:26] Speaker 01:
Some of our case law says that in determining what a claim is directed to, you look at the purported advance over the prior argument, right?

[00:02:33] Speaker 01:
And here, the district court termed your specification, interpreted your claims in light of the specification,

[00:02:43] Speaker 01:
try to understand what these claims were in the purported advance of the prior and really focused on that limitation about receiving content together with the content information associated with the content, right?

[00:02:58] Speaker 01:
And so I see you arguing.

[00:03:02] Speaker 01:
I think you're arguing something else.

[00:03:03] Speaker 01:
You're arguing, no, no, our claims, what they're directed to,

[00:03:07] Speaker 01:
is something else.

[00:03:08] Speaker 01:
And so there's something of a disconnect between your specification and your claims, right?

[00:03:13] Speaker 04:
That's not necessarily the case.

[00:03:15] Speaker 04:
But the district court pointed to one sentence in the summary of the invention, and it was the beginning.

[00:03:21] Speaker 04:
And that's where a broadcasting system was discussed.

[00:03:25] Speaker 04:
And that broadcasting system

[00:03:27] Speaker 04:
is what provides content and information about content.

[00:03:32] Speaker 01:
Is there some place else in your specification where it talks about the value or importance of having a remote control with a display where there's a consumer wearable device that it controls?

[00:03:46] Speaker 01:
Yes.

[00:03:46] Speaker 01:
Could you give me a column and line number?

[00:03:48] Speaker 04:
I will, Your Honor.

[00:03:49] Speaker 04:
If we look at column seven, line 22 through 27, which is still in the summary of the invention,

[00:03:57] Speaker 04:
it describes an object of the present invention is to provide an apparatus and method for providing information in conjunction with media content.

[00:04:07] Speaker 04:
I'm sorry, where are you in the column?

[00:04:10] Speaker 04:
Column 7, 22 through 27.

[00:04:14] Speaker 04:
And then it says, which can display the information to a respective listener or viewer at or in conjunction with a remote control and or device associated with a media playing device.

[00:04:28] Speaker 04:
And this specification was written in 2002.

[00:04:30] Speaker 04:
At that time, they recognized that they had an invention directed to the content player remote combination.

[00:04:39] Speaker 04:
And importantly, we don't begin with the specification.

[00:04:45] Speaker 04:
Whether it's Alice, whether it's this court's precedence, we begin by looking at the claims.

[00:04:50] Speaker 01:
Now, this doesn't say the remote has a display, right?

[00:04:53] Speaker 01:
And it also doesn't say that the content players

[00:04:56] Speaker 01:
The content player here could be a TV, right?

[00:04:59] Speaker 04:
Well, it says which can display the information at or in conjunction with the remote control.

[00:05:05] Speaker 04:
If it's going to be displayed at a remote control, it has to have a display.

[00:05:08] Speaker 04:
And the display is further discussed.

[00:05:11] Speaker 01:
I thought that the display was at the content playing device.

[00:05:15] Speaker 04:
They both have displays.

[00:05:17] Speaker 01:
I meant in this that what you're pointing to in column 7.

[00:05:22] Speaker 04:
Can display the information

[00:05:25] Speaker 04:
to a respective listener, at or in conjunction with a remote, so at.

[00:05:31] Speaker 04:
It can display that, and that's an object of the invention.

[00:05:35] Speaker 01:
I still don't see where this says that the content provider is

[00:05:41] Speaker 01:
wearable, nor does it say that the display is on the remote as opposed to the content provider.

[00:05:48] Speaker 01:
Do you have any other place in the specification?

[00:05:50] Speaker 04:
Well, in the specification itself, if we look at column 13, 1 through 19 in the detailed description of the invention, the media playing device 20, I'll slow down, 13, 1 through 19, it says the media playing device 20 can also include a display device

[00:06:11] Speaker 04:
Well, the display device 20D can also be located on the remote control device.

[00:06:17] Speaker 01:
I don't see where it says display device.

[00:06:19] Speaker 01:
It says input device 20D.

[00:06:20] Speaker 04:
If you go towards line 19.

[00:06:23] Speaker 01:
I go down to line 19.

[00:06:25] Speaker 04:
Yeah, the display device 20D can also include.

[00:06:32] Speaker 04:
And that is part of the detailed description of the invention.

[00:06:35] Speaker 01:
This where you're relying on where it says the display device can also be located on a dashboard control display of a car radio?

[00:06:41] Speaker 04:
No, the display device 20D can also be located on a remote control device 20B.

[00:06:53] Speaker 04:
That's what the claim is directed to here.

[00:06:55] Speaker 04:
It's not corrected to the broadcasting system at all.

[00:06:58] Speaker 04:
And frankly, you can't get to that abstract idea if you start with this claim.

[00:07:03] Speaker 04:
The district court started with what it believed to be the intent of the invention.

[00:07:08] Speaker 04:
But when there are multiple inventions described in the specification, like here, where you have a broadcasting system, and then later on in the background it discusses the remote and the actual device that takes that information and uses it in a non-conventional manner, you can't then go to the specification and rewrite the claims.

[00:07:28] Speaker 02:
So what you're saying is that the key language in the claim itself is the wherein language at the end?

[00:07:34] Speaker 04:
I think the key language in the claim is the entirety of the claim, but certainly the wherein.

[00:07:41] Speaker 04:
At the time, and we have to take ourselves back to 2002, remote controls didn't have display devices at that time, and there's no evidence they did.

[00:07:53] Speaker 01:
Can I ask you something?

[00:07:53] Speaker 01:
I hear what you're saying.

[00:07:55] Speaker 01:
Yeah.

[00:07:56] Speaker 01:
The thing I'm struggling with a little bit, there's a couple things.

[00:07:59] Speaker 01:
One is that your specification doesn't really tout that.

[00:08:02] Speaker 01:
Say, oh, this is so great.

[00:08:04] Speaker 01:
The other thing, it might disclose different parts.

[00:08:08] Speaker 01:
The other thing is that, you're right, we go back to 2002 and that idea is really different.

[00:08:15] Speaker 01:
But there's nothing other than blank boxes in the diagrams and there's no specific detail on

[00:08:21] Speaker 01:
how that would work.

[00:08:23] Speaker 01:
Is that required in order to not be an abstract idea?

[00:08:26] Speaker 01:
Do you have to actually provide more than, I'm going to have this component, that component, this component, they're going to be able to talk to one another.

[00:08:32] Speaker 01:
And it's going to be great.

[00:08:34] Speaker 04:
I think under American Axel, where it said the difference is when you're looking at the spec,

[00:08:38] Speaker 04:
for enablement.

[00:08:39] Speaker 04:
And when you're looking at the claim and saying, is this described functionally?

[00:08:42] Speaker 04:
And it's almost like a means plus function kind of way.

[00:08:45] Speaker 04:
Here, the remote is a physical structure.

[00:08:49] Speaker 04:
It has a display that displays that information.

[00:08:52] Speaker 04:
Now, if you're going to say, well, one would need more, well, that's not for me.

[00:08:56] Speaker 04:
You were the judge.

[00:08:57] Speaker 04:
All we need to know, I mean, me, you want to steal more.

[00:09:00] Speaker 01:
You're saying because it's a physical device, it satisfies one in one.

[00:09:03] Speaker 01:
Yeah.

[00:09:03] Speaker 01:
But that ship has sailed.

[00:09:05] Speaker 01:
There's a lot of cases where physical devices

[00:09:08] Speaker 01:
have been determined, even cases that were pre-billskate, where physical devices were determined to not be sufficient to be eligible.

[00:09:17] Speaker 01:
And certainly cases pro-billskate.

[00:09:21] Speaker 01:
So what else do you have?

[00:09:24] Speaker 04:
At a certain point, there has to be a difference between being directed to a physical device or directed to an abstract idea and related to.

[00:09:33] Speaker 04:
And if we look at TLI, and we look at ChargePoint, and we look at Bilsky and Alice, in all those cases, it was a series of steps or a method.

[00:09:44] Speaker 04:
And if you looked at the claim itself, the abstract idea jumped out at you.

[00:09:49] Speaker 04:
In none of those cases was there a single limitation edition.

[00:09:53] Speaker 04:
This one is one limitation that is tangentially related to the abstract idea of providing information.

[00:10:00] Speaker 04:
It is the receiver that receives content along with information about content.

[00:10:05] Speaker 02:
But wearable receivers were not completely unconventional at the time.

[00:10:11] Speaker 02:
I'm putting aside the article that the judge probably shouldn't have looked at or cited.

[00:10:14] Speaker 02:
But you're not saying that it was because you had something on the wrist.

[00:10:21] Speaker 04:
No, not at all.

[00:10:23] Speaker 04:
In general, remote controls in 2002 didn't have displays and they didn't receive information from a content player.

[00:10:32] Speaker 04:
Remote controls were one-way devices, generally, conventionally, in 2002.

[00:10:36] Speaker 04:
So it's all about the remote control.

[00:10:38] Speaker 04:
It's all about the remote control.

[00:10:39] Speaker 04:
Of course it is.

[00:10:40] Speaker 04:
That's the environment.

[00:10:42] Speaker 04:
That's when we look at deer.

[00:10:43] Speaker 01:
Can I answer something?

[00:10:44] Speaker 01:
I just want to make sure I understand.

[00:10:46] Speaker 01:
I think it's the content player that's receiving the content.

[00:10:49] Speaker 01:
And the remote control is maybe receiving information about the content.

[00:10:54] Speaker 04:
Do I have that right?

[00:10:56] Speaker 04:
Sort of.

[00:10:57] Speaker 04:
The content player receives both.

[00:11:00] Speaker 04:
The content and the information about content that's expressly stated in the claims, and there's no dispute on that.

[00:11:06] Speaker 04:
Now, the information about content, the one that was received at the content player, that information about the content to be played, is then displayed on the remote.

[00:11:17] Speaker 04:
That has to get it from the content player.

[00:11:20] Speaker 04:
It's two-way.

[00:11:21] Speaker 04:
That's what the invention's about.

[00:11:24] Speaker 01:
Where am I going to see that in your specification?

[00:11:29] Speaker 01:
I mean, I understand.

[00:11:30] Speaker 01:
Do you have any other place where that's touted or says just anything like one of the ways the public's attention is or something?

[00:11:37] Speaker 04:
Well, it says the different manner in which they can communicate.

[00:11:39] Speaker 04:
And there was no issue on enablement or anything like that with respect to that part of it.

[00:11:45] Speaker 04:
Do we ask the lower court to focus just on the remote?

[00:11:50] Speaker 04:
We asked the court to focus on the remote.

[00:11:52] Speaker 04:
Yes, we did.

[00:11:52] Speaker 04:
And the complaint, if you look at it, paragraph 18 discusses the remote.

[00:11:58] Speaker 04:
It's hard to prove a negative that something's not conventional.

[00:12:02] Speaker 04:
So here we pointed to evidence saying, look, wristwatch-type remote controls, those didn't even exist.

[00:12:10] Speaker 04:
But how do you cite evidence that, well, nothing existed?

[00:12:14] Speaker 04:
That's not evidence.

[00:12:15] Speaker 04:
So we cited things that would make our allegations plausible, that they're not conventional.

[00:12:21] Speaker 04:
And that's all we had to do.

[00:12:22] Speaker 03:
The burden shifts.

[00:12:24] Speaker 03:
So surely remotes were

[00:12:25] Speaker 03:
known for controlling televisions and other instruments, even in 2002.

[00:12:32] Speaker 03:
So why isn't Claim 32 directed to several old components, standard components, where the whereas clause deals with the exchange of information?

[00:12:46] Speaker 03:
Abstract idea.

[00:12:48] Speaker 04:
Because what is being exchanged

[00:12:51] Speaker 04:
All the remote control is receiving a particular type of information.

[00:12:56] Speaker 04:
That information is the information about the content.

[00:12:59] Speaker 04:
Now, that improves the technology.

[00:13:03] Speaker 04:
Previously, if I was listening to a radio and sitting on my couch, and in 2002, let's say I was fancy enough to have a remote control for the radio, it didn't have a display on it.

[00:13:13] Speaker 04:
If I wanted to know what that song was as it says in the specification, I had to wait.

[00:13:19] Speaker 04:
Well, this invention says you no longer have to wait.

[00:13:21] Speaker 04:
It didn't make it faster.

[00:13:22] Speaker 04:
It didn't automate anything previously done.

[00:13:25] Speaker 04:
It said, now that in technology is improved.

[00:13:27] Speaker 04:
Why?

[00:13:28] Speaker 04:
Because I'm going to put a display, a physical component on that device.

[00:13:31] Speaker 04:
That device is going to receive information from the radio about the song being played.

[00:13:36] Speaker 02:
Go ahead.

[00:13:37] Speaker 02:
I'm sorry.

[00:13:37] Speaker 02:
Is there anything in spec?

[00:13:38] Speaker 02:
I mean, I get that you mentioned a remote control with a display in the spec.

[00:13:43] Speaker 02:
But is there anything there where you're touting the two-way remote control as an improvement over the prior app?

[00:13:51] Speaker 04:
I don't believe that it's tabled.

[00:13:53] Speaker 04:
No, it's not in the spec, I'm certain.

[00:13:56] Speaker 04:
However, it is in the complaint.

[00:13:58] Speaker 04:
And this court has made clear, benefits are not limited to those benefits stated in this classification.

[00:14:06] Speaker 04:
And there is no reason to say this is not a typical thing used as a tool, a computer used as a tool.

[00:14:13] Speaker 01:
And if we go... Is there a figure showing the remote control with the input device?

[00:14:18] Speaker 04:
The remote control with the display?

[00:14:20] Speaker 04:
No.

[00:14:20] Speaker 04:
No, there is not, Your Honor.

[00:14:22] Speaker 03:
Doesn't sound like the essence of the invention, then.

[00:14:25] Speaker 04:
Well, the essence of the invention... If the essence of the invention is physical, and here it's physical, so we're looking... We're applying case law that deals with business method... Is it physical?

[00:14:39] Speaker 01:
This isn't anything like the... I'm sorry.

[00:14:41] Speaker 01:
here and really this is important okay here in three talks about an input device twenty c you say it's physical what physicalness am I supposed to understand from this blank box here that's marked as twenty c that's part of the disclosure the other part of the disclosure is the specification if we look at and I cited it here

[00:15:11] Speaker 01:
but you want to make you described from a control because it's not one of the figure is not relevant to this question i don't know if this is a remote control that nobody ever developed and it shows a blank box twenty c on figure three

[00:15:25] Speaker 04:
Well, and it also is described in... Well, how is it described?

[00:15:28] Speaker 01:
Does it tell me the components of it, and how it operates, and any other things that would allow a pose?

[00:15:34] Speaker 01:
I mean, I realize, I know, I sound like I'm talking about enablement.

[00:15:38] Speaker 01:
I know.

[00:15:38] Speaker 01:
I understand the problem.

[00:15:40] Speaker 01:
The problem is there's a disconnect between your specification and your claims.

[00:15:45] Speaker 04:
And if you believe that's the case and the claims pass 101, they might not be enabled.

[00:15:50] Speaker 04:
But we don't go look at the claims, the spec, and have that define the claims.

[00:15:54] Speaker 01:
OK, I want to ask you my question again, though, which is I think for me this is a really important question, which is when I look at things like figure three, which shows this blank box on the input device, and then you're telling me the language, my claim, what's really eligible about it or what it's directed to is some of this functional language in the wherein clause.

[00:16:15] Speaker 01:
And my concern is that it sounds a little bit like an idea.

[00:16:19] Speaker 01:
My invention is the idea of having a display on my remote control that can have two-way communication with a device that could be wearable.

[00:16:31] Speaker 01:
So my question again is, why isn't that, set aside that it's physical components, why isn't that itself an abstract idea?

[00:16:41] Speaker 04:
What you just described, at least to me, is a physical device.

[00:16:45] Speaker 04:
If you're saying, we're going to send this information to a media playing device.

[00:16:49] Speaker 01:
OK, but another physical device would be, I want to play bingo on a computer.

[00:16:53] Speaker 01:
I have a physical device, it's a computer, and now I can play bingo on it.

[00:16:56] Speaker 01:
I haven't described to you how the computer is going to be modified or changed in order to play bingo or anything, but that's my idea.

[00:17:02] Speaker 01:
Here, I have the idea it involves multiple different physical components, but it's an idea of how they're going to interact with one another and that the remote will display and that the content provider will be wearable.

[00:17:15] Speaker 04:
Yeah, that's a physical device.

[00:17:16] Speaker 04:
Now, the difference between bingo is you took the computer, nothing's improved there.

[00:17:22] Speaker 04:
All you did is put bingo on the computer.

[00:17:24] Speaker 04:
No one's alleging that this was a conventional environment.

[00:17:27] Speaker 04:
It's not a conventional thing used as a tool.

[00:17:30] Speaker 04:
It's just not.

[00:17:32] Speaker 04:
And they're not going to get up and say it is.

[00:17:34] Speaker 02:
So you're really focusing on step two, even if we say, all right, this is all about displaying media content.

[00:17:43] Speaker 04:
At a minimum, there is absolutely no evidence that this component, the component being the remote control, is conventional.

[00:17:52] Speaker 04:
In fact, the only evidence relied on by the district court for the conventionality of a remote with a display, full stop,

[00:18:01] Speaker 04:
Internet website that the court found itself outside the record.

[00:18:05] Speaker 01:
And your point would be that that would be inappropriate, particularly under 12.

[00:18:09] Speaker 04:
In the context of a motion to dismiss.

[00:18:11] Speaker 04:
Yeah, it would be inappropriate to consider it.

[00:18:14] Speaker 04:
And it certainly doesn't establish it as a matter of law.

[00:18:17] Speaker 01:
The court said that your statements and your complaint were conclusory.

[00:18:21] Speaker 01:
Isn't that right?

[00:18:24] Speaker 04:
Some of the statements, but not the statements with respect to the, not in paragraph 18, when we went through the, there's factual allegations with respect to why.

[00:18:33] Speaker 04:
We said, this remote, not conventional for doing these things.

[00:18:37] Speaker 04:
And then we cited evidence below it, for example.

[00:18:40] Speaker 01:
wristwatches that did this were not around so it's hard to prove a negative like you said something that was around in two thousand six but what about the the you do have a sentence that says the claim technology and then you describe i guess the display of the remote control the wearable content player and you say was not known in the prior at the time of the invention let alone well-known routine or conventional are you you rely on that i think in your briefs yeah we rely on in a brief actually that's a plausible allegation

[00:19:09] Speaker 04:
That's plausible.

[00:19:10] Speaker 04:
I mean, in 2002, it's not only plausible, there's no contrary evidence.

[00:19:15] Speaker 04:
And for the district court to conduct its own search, as we went through in our brief, was improper to go outside the record without giving us notice.

[00:19:23] Speaker 03:
Thank you, counsel.

[00:19:25] Speaker 03:
Your time has expired, but we'll give you two minutes back to rebuttal.

[00:19:30] Speaker 03:
And we'll hear from Mr. Fuga.

[00:19:34] Speaker 03:
Is it Fuga or Fuga?

[00:19:35] Speaker 00:
Fuga.

[00:19:36] Speaker 00:
Fuga.

[00:19:36] Speaker 00:
Thank you.

[00:19:45] Speaker 00:
Good morning and may it please the court.

[00:19:47] Speaker 00:
The patents here are as straightforward as they appear.

[00:19:50] Speaker 00:
They reset the idea of providing information to a user in conjunction with media content.

[00:19:56] Speaker 01:
Could you address that point that I was just talking about, that paragraph 18 in the complaint?

[00:20:01] Speaker 01:
There's one sentence.

[00:20:04] Speaker 01:
It's the sentence that bridges pages A83 to 84 of the appendix.

[00:20:11] Speaker 01:
Could you just address

[00:20:13] Speaker 01:
Why it is that that's conclusory, or what else I should think about that one sentence.

[00:20:18] Speaker 00:
And you said 83 to 84.

[00:20:19] Speaker 00:
Yep.

[00:20:20] Speaker 00:
Well, I believe the district court found that these were conclusory and irrelevant.

[00:20:33] Speaker 01:
Why is it conclusory and why is it irrelevant?

[00:20:37] Speaker 00:
Because it was in the context of deciding whether or not there was a technological solution to a technological problem.

[00:20:44] Speaker 00:
The court correctly, in our opinion, looked at the patent, the patent specification, the patent claims in light of the patent specification.

[00:20:54] Speaker 00:
And as you pointed out earlier, looked at what is this patent really geared toward?

[00:20:59] Speaker 00:
What is it directed to?

[00:21:01] Speaker 00:
And the patent tells us.

[00:21:03] Speaker 02:
Even if we accept the proposition that it is geared toward displaying

[00:21:07] Speaker 02:
information, gathering and displaying information.

[00:21:10] Speaker 02:
I mean, look at column four, line 36.

[00:21:15] Speaker 02:
A remote control device associated with a media playing device can also include a display device for displaying requested any of the information described herein.

[00:21:24] Speaker 02:
So in other words, there is an exact statement that the remote control can include a display.

[00:21:32] Speaker 02:
Now, is there any evidence in the record

[00:21:34] Speaker 02:
that that was common and routine at the time.

[00:21:39] Speaker 00:
I believe that the discussion was not that it was common and routine, but that it was not part of the invention.

[00:21:46] Speaker 00:
The display can be anywhere.

[00:21:47] Speaker 00:
The specification talks about that.

[00:21:49] Speaker 01:
So under step two, we can't ignore claim limitations.

[00:21:53] Speaker 01:
So step one, you look at what the claims are directed to.

[00:21:56] Speaker 01:
I'll just assume that the district work better, right, about what the claim is directed to.

[00:22:00] Speaker 01:
Under step two,

[00:22:02] Speaker 01:
Our job is to look at all of the claims, all the limitations in the claim, either individually or in an ordered combination, and determine whether there's an inventive concept.

[00:22:11] Speaker 01:
And that's what these questions are going to.

[00:22:14] Speaker 01:
These questions are going to whether there is sufficient evidence in this complaint at paragraph 18, I mean paragraph 18 on page 83, whether that's sufficient to raise a factual issue that would preclude 12b6.

[00:22:28] Speaker 00:
Sure, and the answer is no, because these are, as mentioned, conclusory allegations that don't even cite the patent.

[00:22:41] Speaker 01:
Why do they have to cite the patent?

[00:22:43] Speaker 01:
I mean, this says the claim technology, and it really emphasizes the wearable content player having display and playing, which is wirelessly coupled with the remote control having a second display that can wirelessly control operation and wearable content player.

[00:22:58] Speaker 01:
Why, and then it says, was not known in the prior art.

[00:23:01] Speaker 01:
Why is that conclusory?

[00:23:03] Speaker 01:
And why do they have to cite the patent to say it's not known?

[00:23:06] Speaker 00:
Well, to take that backwards, to cite the patent saying this was something, whether or not we're talking about wearable, which I believe is mentioned once in patent.

[00:23:17] Speaker 02:
Well, he's focusing on the remote control.

[00:23:19] Speaker 00:
OK.

[00:23:19] Speaker 00:
The remote control is treated merely as incidental in the patent.

[00:23:23] Speaker 02:
So if we're- I don't understand

[00:23:26] Speaker 02:
your statement that's incidental.

[00:23:27] Speaker 02:
It says that it's an alternative display device.

[00:23:30] Speaker 00:
It's an alternative display device, right.

[00:23:32] Speaker 00:
It's not the focus of the patent.

[00:23:35] Speaker 00:
It's not the, if we're at step two, the inventive concept.

[00:23:38] Speaker 00:
It's not something more that takes an abstract idea and provides some sort of technological solution.

[00:23:46] Speaker 00:
There's no discussion about a technological solution with remote control.

[00:23:49] Speaker 02:
But we do have CASA that says if there is

[00:23:53] Speaker 02:
a non-frivolous allegation in the complaint, it doesn't have to cite to the specification, or to the written description, I'm sorry, in order to survive 12b6.

[00:24:06] Speaker 00:
Okay, it may not need to cite, the allegation may not need to cite to the specification, but the specification itself undercuts their arguments.

[00:24:15] Speaker 00:
Why?

[00:24:17] Speaker 00:
Because the remote control is merely one of a myriad of ways to show information.

[00:24:26] Speaker 00:
And when you look at Claim 32, which we want to look at,

[00:24:30] Speaker 00:
The information is going to a user.

[00:24:33] Speaker 00:
But the remote control has a display.

[00:24:37] Speaker 00:
But according to the claim 32, that information doesn't even need to come through the display.

[00:24:42] Speaker 00:
The information can come through a speaker on the remote.

[00:24:46] Speaker 00:
There's no discussion of that.

[00:24:49] Speaker 00:
And the specification considers.

[00:24:51] Speaker 02:
I don't understand that.

[00:24:52] Speaker 02:
I mean, there are several places in the written description

[00:24:58] Speaker 02:
that your friend on the other side cited, or that I just cited too, that talk about a display on the remote control.

[00:25:04] Speaker 02:
Are you saying somehow they said, we don't really mean a display, we're just kidding?

[00:25:10] Speaker 00:
No, I'm saying that while there's a display on the remote,

[00:25:14] Speaker 00:
One, that display is not treated as an inventive concept.

[00:25:20] Speaker 00:
But two, because the display by the specification in other claims could be anywhere.

[00:25:26] Speaker 00:
But two, is that in that claim, while there is a display on the remote control, the information that's going to a user isn't necessarily through that display.

[00:25:37] Speaker 00:
There's just information going to a user, and there's a display on the remote.

[00:25:42] Speaker 02:
I don't understand that.

[00:25:43] Speaker 02:
The section I just read to you said that that's the way it's displayed to the user.

[00:25:48] Speaker 00:
In claim 32?

[00:25:49] Speaker 00:
I would like to, I guess, turn to claim 32.

[00:25:58] Speaker 00:
Because it's a confusing ending where in.

[00:26:01] Speaker 00:
Because the remote does have a display, right?

[00:26:05] Speaker 00:
A wirelessly remote control comprising a second display.

[00:26:11] Speaker 00:
the remote control device being configured to receive commands directing operations, and wherein the remote control device is configured to provide to the user at least a portion of the information.

[00:26:22] Speaker 00:
It doesn't say provide to the user a portion of the information through that display.

[00:26:27] Speaker 00:
And in the specification, it talks about we can provide a user with information anyway, through a display, through a loudspeaker, through earphones.

[00:26:38] Speaker 02:
There was no claim construction of this term.

[00:26:41] Speaker 02:
limiting it or not limiting it to an actual display.

[00:26:45] Speaker 00:
Well, I don't really think there's a need to limit it or not limit it.

[00:26:48] Speaker 00:
I think it fails 101 either way.

[00:26:51] Speaker 02:
I always have to think about these cases and say, if you were charged with infringement, I would guess that you would probably say to the court, you look at the written description, and it's clear that the only way that claim is satisfied is through an actual display.

[00:27:09] Speaker 00:
I don't know what our claim construction argument would be, but I can tell you that in the specification there are multiple ways to provide information.

[00:27:21] Speaker 02:
Show me where it says there are multiple ways to provide information via the remote.

[00:27:38] Speaker 00:
Appendix page 43, column 15.

[00:27:45] Speaker 00:
I guess starting, column 15 starting around line 17.

[00:27:49] Speaker 00:
That's the start of a new paragraph.

[00:27:51] Speaker 00:
The information can be displayed on the display device 20D, which can be a dedicated display device for displaying the information and or which can be integrated into the radio panel, remote control.

[00:28:03] Speaker 00:
The information can also be audibly announced through the radio speakers and or earphones.

[00:28:08] Speaker 02:
That's a different embodiment.

[00:28:11] Speaker 02:
That's where they're talking about the car embodiment.

[00:28:14] Speaker 00:
Well, I guess that's the point that if the invention of this patent were a remote control, the invention would be a remote control.

[00:28:24] Speaker 00:
The invention here is the abstract idea.

[00:28:27] Speaker 00:
And whether or not there was

[00:28:31] Speaker 01:
Do you have another response on this?

[00:28:34] Speaker 01:
Because you seem to want to have us ignore this limitation, because the abstract idea that the district court identified is up above earlier in the claim.

[00:28:44] Speaker 01:
But we can't ignore this limitation under step two.

[00:28:47] Speaker 01:
So do you have another argument?

[00:28:49] Speaker 01:
So for example, there are cases that say,

[00:28:52] Speaker 01:
that an abstract idea itself cannot be the inventive concept.

[00:29:01] Speaker 01:
I think the Supreme Court said something like that, that the ineligible subject matter itself can't be the thing that gives the inventive concept, even if it's an awesome, amazing idea.

[00:29:16] Speaker 01:
natural occurrence.

[00:29:18] Speaker 00:
So I was going to reference Charge Point, which is for that same argument, is because we don't want to ignore that last limitation, because that last limitation is the abstract idea, and that abstract idea cannot be what is inventive.

[00:29:36] Speaker 00:
The inventive thing here is... Why is this abstract?

[00:29:39] Speaker 01:
Why is this abstract?

[00:29:41] Speaker 01:
You're assuming it's abstract.

[00:29:42] Speaker 01:
I want to hear you explain why you think it is.

[00:29:45] Speaker 00:
Because the remote is configured how it doesn't matter, but is configured to provide to the user at least a portion of the information associated with the content.

[00:29:55] Speaker 00:
So if I'm watching television, my remote is configured to provide me information about what I'm watching.

[00:30:02] Speaker 00:
It doesn't matter how it's configured, it's just that it's configured to do that.

[00:30:07] Speaker 00:
That's the abstract idea.

[00:30:09] Speaker 01:
Providing that- It's the abstract idea.

[00:30:11] Speaker 01:
You said before something else was the abstract idea.

[00:30:13] Speaker 00:
I don't know.

[00:30:14] Speaker 00:
The abstract idea is providing information in conjunction.

[00:30:19] Speaker 02:
So it doesn't matter how it's provided.

[00:30:22] Speaker 02:
If they came up with some fancy robot that was displaying information, it would still be ineligible, just because you're displaying information.

[00:30:33] Speaker 00:
Well, no.

[00:30:33] Speaker 00:
I think we would have to look at the claims of that.

[00:30:34] Speaker 00:
If they were directed to a robot that did all of these certain things, if it were just kind of, if the focus of the claim were

[00:30:43] Speaker 00:
Providing information, like the title of the patent is here, which is the summary of the invention is here, which is to provide information.

[00:30:51] Speaker 00:
And through a remote control is one of the many ways that we can provide information.

[00:30:56] Speaker 00:
And a robot's one of those ways.

[00:30:58] Speaker 00:
Maybe it would be, especially if there was no discussion about it.

[00:31:01] Speaker 02:
But that's step two?

[00:31:02] Speaker 02:
See, that's the problem is there really are two steps.

[00:31:04] Speaker 02:
And you seem to be conflating.

[00:31:06] Speaker 00:
Well, I guess the inventive concept, if we're looking to an inventive concept, can't be an abstract idea, which we discussed.

[00:31:16] Speaker 00:
But I think what we're arguing about here is whether or not there was a remote with a display on it before 2002 or whatever date it was.

[00:31:28] Speaker 00:
That's a novelty issue.

[00:31:30] Speaker 00:
And as this court has consistently held, a novel abstract idea is still an abstract idea, even if we take this remote with another display on it as novel, which we obviously don't concede.

[00:31:49] Speaker 00:
But even if we do, it's still a novel.

[00:31:52] Speaker 02:
That language that you're quoting from our cases

[00:31:56] Speaker 02:
means an abstract idea.

[00:31:58] Speaker 02:
Say no one had ever thought of gathering data and displaying it, period.

[00:32:04] Speaker 02:
And then we'd say it's still just a novel abstract idea.

[00:32:08] Speaker 02:
But that's very different than saying that everything else is routine, conventional, just using normal computer hardware.

[00:32:22] Speaker 02:
Whether or not it's enabled is a different question.

[00:32:24] Speaker 00:
Right, and it is, and right, those are two different questions, 112 and 101, but I think that there is that how question, and if we're talking about this remote being a technological solution at step two, that's the inventive concept, it cannot be a technological solution when there's no guidance as to how to, as to what that solution is.

[00:32:48] Speaker 02:
So you're collapsing enablement and step two.

[00:32:52] Speaker 00:
I'm not.

[00:32:54] Speaker 00:
That's from CX Loyalty, I believe, which was there can be no technological solution if there's no guidance.

[00:33:02] Speaker 00:
And as it's been mentioned, figure three, it's a black box.

[00:33:06] Speaker 00:
And it's an input device.

[00:33:08] Speaker 00:
It's not even called a remote control because it doesn't matter.

[00:33:11] Speaker 00:
It's just a way to provide information, which is the abstract idea.

[00:33:16] Speaker 00:
And the abstract idea cannot save a patent at step two.

[00:33:25] Speaker 03:
Anything for the council?

[00:33:28] Speaker 00:
No, that's all.

[00:33:28] Speaker 03:
Thank you.

[00:33:30] Speaker 03:
Thank you.

[00:33:30] Speaker 03:
Mr. Defencenzo has some more bottle time.

[00:33:45] Speaker 03:
Two minutes.

[00:33:52] Speaker 04:
On step two, the remote control does not perform the abstract idea identified by the district court.

[00:34:00] Speaker 04:
The district court said, because the district court referred to the broadcasting system, that the patent and all the claims, regardless of what they said, are directed to providing content along with information about content.

[00:34:16] Speaker 04:
The content player in the first limitation has a receiver for receiving that information.

[00:34:22] Speaker 04:
every other limitation is directed to the content player.

[00:34:26] Speaker 04:
Now, particularly on step two, so first, that's why we don't believe it's directed to an abstract idea, is the claims that the whole, as a whole, are directed to the device for receiving the information, not for providing.

[00:34:39] Speaker 04:
But on step two, we look at conventionality.

[00:34:44] Speaker 04:
The claims take

[00:34:47] Speaker 04:
That content, they have a display on the content player that could display it.

[00:34:52] Speaker 04:
And then they have a remote.

[00:34:54] Speaker 04:
A portion of that information, in particularly the information about the content, is sent to the remote.

[00:35:00] Speaker 04:
The remote has a display for displaying that information.

[00:35:04] Speaker 04:
That is not conventional.

[00:35:05] Speaker 02:
What's your response to your friend on the other side, the citation to X Loyalty?

[00:35:13] Speaker 04:
What did he say about X Loyalty?

[00:35:15] Speaker 04:
I'm sorry.

[00:35:15] Speaker 02:
He said, he quoted, or he respectively quoted, a paraphrase, the quote that says, the claims provide no useful guidance as to how this purported function is achieved, and thus cannot be directed to a technological solution.

[00:35:30] Speaker 04:
At step two, we asked, is it being done in a conventional environment?

[00:35:33] Speaker 04:
The answer is no.

[00:35:34] Speaker 04:
It's an improvement to the technical.

[00:35:36] Speaker 01:
He asked whether it's an inventive concept.

[00:35:37] Speaker 04:
An inventive.

[00:35:38] Speaker 04:
is an improvement to the technology as a whole.

[00:35:40] Speaker 04:
It is.

[00:35:40] Speaker 01:
An inventive concept.

[00:35:42] Speaker 04:
I don't think it has to be an improvement necessarily.

[00:35:47] Speaker 04:
It improves upon the technology as a whole.

[00:35:49] Speaker 04:
It's not a social science improvement done on a computer.

[00:35:52] Speaker 04:
It's not a business method again.

[00:35:54] Speaker 01:
It's not strong.

[00:35:55] Speaker 01:
Your view is that it improves upon the technology because the remote control can display information about the content that the user is watching on the content player.

[00:36:04] Speaker 04:
And it was previously unable to do that.

[00:36:07] Speaker 04:
And we think that's consistent with this Court's precedent.

[00:36:09] Speaker 04:
And more importantly, with respect to step two, if you give us all reasonable inferences, and you read paragraph 18 of the complaint, and you look at the remote being an object of the invention, and there's no dispute it's described in the specification, the literal only reason to get out of that component is because of enablement.

[00:36:30] Speaker 04:
And that is not proper.

[00:36:31] Speaker 04:
And I don't think this Court's precedent allows us to go into this quasi-enablement thing.

[00:36:36] Speaker 03:
Thank you, counsel.

[00:36:37] Speaker 03:
Thank you.

[00:36:38] Speaker 03:
We'll take the case under submission.

[00:36:53] Speaker 02:
All rise.

[00:36:54] Speaker 02:
The honorable court is adjourned.