[00:00:00] Speaker 04:
Team 46, Smile Direct Club LLC against Candid Care Company, Mr. Papakostas.

[00:00:09] Speaker 00:
Good morning and thank you, Your Honor.

[00:00:11] Speaker 00:
Sonny and Papakostas representing Appellant Smile Direct Club.

[00:00:14] Speaker 00:
The patented issue in this case claims subject matter that is patent-eligible.

[00:00:18] Speaker 00:
Specifically, the 522 patent covers improvements to processes and systems for manufacturing personalized sets of aligners that are a set of tangible and physical products

[00:00:30] Speaker 00:
are meant to reposition a patient's teeth, manufactured based on a set of inputs that are claimed within the processes and systems at issue here.

[00:00:38] Speaker 00:
And that way, when made according to these patented processes and systems, not only saves patients time and money, but also can reduce the risk of errors happening in the molding process.

[00:00:48] Speaker 00:
At bottom, this is a case about whether Smile Direct Club failed to state a claim at the outset, as this was the motion dismissed under Rule 12B.

[00:00:56] Speaker 00:
Not about whether Smile Direct Club failed to prove its case,

[00:00:59] Speaker 00:
That's why the standard of review for a 12b6 motion is what it is and why it matters that the district court failed to properly apply the standard when engaged in improper affirmative fact-finding.

[00:01:11] Speaker 00:
In addition to its general factual misstatements of the record before it, the district court's tenuance went well beyond the appropriate legal framework for rule 12b6 analysis.

[00:01:19] Speaker 00:
Substituting its own fact-finding and or adopting candidate attorney argument in place of well-fledged factual allegations in the complaint

[00:01:27] Speaker 00:
as well as the facts characterized in the prior art and the benefits of SmileDirectClub's patented solutions stated, right, in the patent.

[00:01:35] Speaker 00:
There's one example the district court misread and misstated the purpose of the 5C2 patent as being directed solely to teleorthodontics or telehealth business methods, or in a longer version of that, merely arranging for patients to receive aligners without ever having to physically see a dental professional.

[00:01:53] Speaker 00:
While that's one aspect of the claimed methods and systems,

[00:01:56] Speaker 00:
That's a wrong oversimplification of the patent, because it ignores that this patent covers systems and methods for producing aligners for repositioning one or more teeth in a patient's mouth.

[00:02:07] Speaker 00:
It's the first sentence in the summary of the invention and the specification, and it's claimed.

[00:02:12] Speaker 00:
The district court meant this entirely and contradicted itself in its own opinion.

[00:02:15] Speaker 00:
For example, the court concluded at one stage at appendix page 20 of the district court's opinion that, quote, the claims do not disclose the method for manufacturing dental aligners, end quote.

[00:02:26] Speaker 00:
but earlier conceded that, quote, and this is at appendix page 15, the claims themselves require either the production of aligners or system for fabricating aligners.

[00:02:37] Speaker 00:
This record also concluded that the 522 patent does not teach a manufacturing process, but instead describes a workflow that enabled the patient without seeing an orthodontist in person to arrange for an intraoral scan that is subsequently used to manufacture and deliver aligners.

[00:02:51] Speaker 00:
but those steps for generating a treatment plan and manufacturing aligners based on that plan, as well as delivering the aligners, are claimed steps in the process.

[00:03:01] Speaker 00:
This report, again, aired when it found that the 5C2 patent contained only three lines of, quote, general statements, end quote, on fabricating aligners.

[00:03:11] Speaker 00:
That ignores not only the three provisional applications incorporated by reference, but in fact ignores specific claim language, such as that of dependent claim seven,

[00:03:18] Speaker 00:
which describes specific materials and a specific way to fabricate the alliance.

[00:03:25] Speaker 00:
This record also misstated the record regarding the party's arguments when the court stated that neither party takes a position on whether the claims should be read to require particular order.

[00:03:34] Speaker 00:
After previously acknowledging that SDC, Smile Direct Club, argues that it is necessary to determine whether the steps of the claim methods must be performed in particular order.

[00:03:44] Speaker 00:
And, in general, the District Court overgeneralized the field of teleorectodontics in a matter so broad as to strip it of all meaning.

[00:03:51] Speaker 00:
These are fundamental misreadings and misstatements of the record, which all but ensured that the District Court would begin its analysis with a flawed premise and arrive at erroneous conclusions.

[00:04:04] Speaker 00:
The District Court made many factual findings that it just wasn't entitled to make on the record on the Rule 12b6 motion.

[00:04:10] Speaker 00:
Chiefly among them was the opinion that the claims systems and methods were routine, conventional, and well understood.

[00:04:16] Speaker 00:
These go directly against the factual allegations in the complaint as well as statements in the patent itself.

[00:04:21] Speaker 00:
There's no evidence that the actual distributed and ordered combination of the steps itself was conventional.

[00:04:28] Speaker 02:
The only way... This is just Toronto.

[00:04:30] Speaker 02:
Can I just ask if all of the...

[00:04:38] Speaker 02:
I would say all of the steps were properly described as, I think the phrase that we've used in the Supreme Court referred to in Alice, a method of organizing human activity.

[00:04:53] Speaker 02:
And it really doesn't matter whether they're conventional, right?

[00:04:58] Speaker 02:
That's just on the abstract side of the line.

[00:05:04] Speaker 00:
Correct.

[00:05:05] Speaker 00:
That goes to the step one of the inquiry, Your Honor.

[00:05:08] Speaker 00:
And if all of the steps were a method of organizing human activity, then that's right in line with Alice, as you mentioned, Your Honor.

[00:05:17] Speaker 00:
However, knowing that the district court focused on some steps regarding making appointments, the district court did not look at the claims as a whole when it characterized the idea that the patent is directed to.

[00:05:34] Speaker 00:
as merely teleorthodontics or having patients arrange for receiving liners without ever seeing a desk professional.

[00:05:41] Speaker 00:
There are concrete steps that are right there in every independent claim.

[00:05:46] Speaker 02:
What other ones do you have in mind?

[00:05:51] Speaker 00:
I'm sorry, Your Honor, I missed that.

[00:05:52] Speaker 02:
What are the concrete steps that you just referred to?

[00:05:57] Speaker 00:
Well, certainly, Your Honor.

[00:05:59] Speaker 00:
Starting from making the appointment, we pled in the complaint that using this appointment management system was revolutionary in the industry.

[00:06:10] Speaker 02:
Right, but I guess all I'm just trying to figure out is this.

[00:06:14] Speaker 02:
One can describe a method of organizing human activity at various levels of detail.

[00:06:22] Speaker 02:
At a high level, one can say telecommunication orthodontic or something.

[00:06:29] Speaker 02:
At a more specific level, you can say sending a message to make an appointment, showing up for the appointment, et cetera.

[00:06:40] Speaker 02:
Different levels of specificity, but all still within the world of methods of organizing human activity.

[00:06:49] Speaker 02:
There's nothing here about the physical construction of the aligners.

[00:06:54] Speaker 02:
Let's call that manufacturing that's asserted to be new.

[00:06:59] Speaker 00:
Well, I would take that in two points.

[00:07:03] Speaker 00:
First of all, making the aligners themselves and generating the treatment plan are concrete steps, whether they're asserted to be new or not.

[00:07:13] Speaker 00:
The idea that, and I think it's important here to also step back, the idea here is not just that a patient gets a 3D scan of their teeth and the resulting aligners are a sort of eye-to-eye

[00:07:29] Speaker 00:
are a sort of exact replica of the three-dimensional data.

[00:07:33] Speaker 00:
The way that the patent describes the generation of the treatment plan in column 15 is such that you get the 3D data, the dental professional is looking at that data, is able to manipulate it to a sort of desired endpoint.

[00:07:48] Speaker 00:
And then through various, certain embodiments can generate, the treatment plan may be generated, could be automatically generated by a computer according to a set of rules,

[00:07:58] Speaker 00:
such as every two weeks, for example, that a tooth can't move more than three millimeters.

[00:08:02] Speaker 00:
That's a specific example of a rule in the specification in column 15.

[00:08:07] Speaker 00:
And the patient receives a set of aligners in stages.

[00:08:11] Speaker 00:
That's also captured by the claims and some of the dependent claims.

[00:08:15] Speaker 00:
And in those stages, each one of those stages, you have a physical set of aligners that's custom made to patient's teeth based on a treatment plan that's made to reposition those teeth in stages.

[00:08:28] Speaker 00:
You can see you have physical aligners that are produced based on this process.

[00:08:35] Speaker 00:
And you have a tangible result with the patient's teeth based on the use of this process.

[00:08:40] Speaker 00:
So it's very difficult to look at these claims as a whole and just cast them as the district court did as merely methods of organizing human activity.

[00:08:49] Speaker 00:
And we would vehemently disagree with that conclusion.

[00:08:52] Speaker 00:
And that conclusion can only be reached by taking parts of these claims

[00:08:57] Speaker 00:
in isolation and ignoring other parts.

[00:09:00] Speaker 00:
And the Supreme Court way back in Diamond v. Deer warned that it's inappropriate to dissect the claims in old and new elements and then to ignore the presence of the old elements in the analysis.

[00:09:11] Speaker 02:
Right, but then some people might say, and I think it's not an unfair characterization, that the single largest change that Mayo made in 101 law is precisely to insist on

[00:09:27] Speaker 02:
dissecting the claim, not ignoring the rest, but dissecting it for purposes of analysis to identify what is asserted as the advance.

[00:09:37] Speaker 02:
And then seeing if now we're not ignoring the rest, seeing if the rest actually is, you know, is an inventive contribution.

[00:09:48] Speaker 02:
Because obviously there was lots of physical stuff going on in Mayo.

[00:09:53] Speaker 02:
But the only advance was this law of nature,

[00:09:57] Speaker 02:
of identifying when certain levels were too high and certain levels were too low.

[00:10:03] Speaker 02:
But it's not like there's nothing physical going on.

[00:10:05] Speaker 02:
You do have to dissect it for analysis purposes.

[00:10:08] Speaker 02:
Isn't that right?

[00:10:10] Speaker 00:
You just can't ignore the rest.

[00:10:12] Speaker 00:
I'm sorry.

[00:10:13] Speaker 00:
I didn't mean to interrupt you, Your Honor.

[00:10:14] Speaker 02:
No, just go ahead.

[00:10:16] Speaker 00:
Sorry.

[00:10:17] Speaker 00:
I think, of course, you're correct, Your Honor, that the first step in the analysis is dissecting this.

[00:10:22] Speaker 00:
But I think that it's error to look at only parts of these claims

[00:10:27] Speaker 00:
then look at that and say that's the hyper focus on a certain part of the claim without context or without considering how that informs the rest of the idea.

[00:10:41] Speaker 00:
And the idea here that this patent claims, the 5G2 patent, is that it's an improved method of producing finers.

[00:10:48] Speaker 00:
Now, there are various inputs and there are various ways to get into, that go into the steps that go

[00:10:55] Speaker 00:
into the 3D scan, and then the steps that go into the generation of the treatment plan, and then manufacturing of the liners based on the treatment plan.

[00:11:03] Speaker 00:
And especially at the, and the complaint has allegations that talk about what the benefits of those are, and I know that's getting more into the step two part of the analysis.

[00:11:14] Speaker 00:
But also, the patent itself describes the prior art method in a way, oh, I'm sorry, don't.

[00:11:21] Speaker 01:
Yeah, it's Judge Clemson.

[00:11:22] Speaker 01:
I'm just trying to interrupt you, sir, Mr. Peppacoffice.

[00:11:25] Speaker 01:
You're going back to the conversation that you were having with Judge Toronto a minute ago talking about dissection.

[00:11:32] Speaker 01:
What, in your opinion, is the advance over the prior art in the claim patent?

[00:11:38] Speaker 01:
Or you haven't had any specific discussion yet over what the advance over the prior art was?

[00:11:45] Speaker 00:
Right.

[00:11:45] Speaker 00:
So that is actually discussed right there in the patent in the background.

[00:11:50] Speaker 00:
It talks about the prior art.

[00:11:52] Speaker 00:
prior to the invention, the dental impressions were made in a dental office.

[00:11:58] Speaker 04:
I'm sorry, my time is up.

[00:12:01] Speaker 01:
Is the elimination of the visit to the dentist or the orthodontist, is that the advance over the arc?

[00:12:11] Speaker 00:
That is a part of the advance over the arc and the effect that that has on the

[00:12:17] Speaker 00:
Efficiency, the cost, and the efficiency in the cost and the time cost.

[00:12:24] Speaker 01:
I'm interested in the advance, not in the effects of the advance.

[00:12:27] Speaker 01:
What specifically is the advance over the prior art?

[00:12:32] Speaker 00:
Yes, the advance over the prior art here is the reduction of steps in the prior art methods and processes.

[00:12:44] Speaker 00:
is captured by part of the claims.

[00:12:46] Speaker 01:
And what's the specific step that's reduced?

[00:12:53] Speaker 00:
There's an elimination.

[00:12:54] Speaker 00:
So as the patent describes in the background of the inventions right there in column one, there were many patients were required to return to the dental office to have many impressions made.

[00:13:04] Speaker 00:
The impressions included any errors, such as incomplete impressions or other areas that patients would be required to go to the dentist again.

[00:13:12] Speaker 00:
The dental professional used the impressions in the course of administering a continuing treatment plan.

[00:13:17] Speaker 00:
The patient would be required to undergo many checkup appointments at the dental office.

[00:13:21] Speaker 00:
The dental professional would track the treatment in person and modify it as necessary.

[00:13:24] Speaker 00:
So these are conventional methods in the prior art that were labor and cost intensive for both patients and the dental professionals.

[00:13:33] Speaker 00:
So what the 5C2 patent did by eliminating some of those deaths and arranging

[00:13:40] Speaker 00:
Arranging components of the claim system in an unconventional manner is that it's a now methodical system for producing aligners that eliminates some of those prior steps required to design, produce, and distribute aligners, and that's the advance over the prior art methods.

[00:14:00] Speaker 00:
That's all that was in the record about that, and those were the facts that the district court was required to credit as true on Rule 12b6 motion.

[00:14:09] Speaker 00:
It didn't do that.

[00:14:10] Speaker 00:
And I understand my time's up, Your Honor.

[00:14:13] Speaker 04:
Any questions for Mr. Pappacostas at this stage?

[00:14:18] Speaker 04:
All right, we'll save your rebuttal time.

[00:14:20] Speaker 04:
Let's hear from Mr. Sandinato.

[00:14:23] Speaker 03:
Thank you, Your Honor, and may it please the court, Mike Sandinato for Defended Candid Care Company.

[00:14:29] Speaker 03:
Your Honors, there are some Section 101 cases that present close calls.

[00:14:35] Speaker 03:
This one is not.

[00:14:36] Speaker 03:
In some cases, it can be a challenge to identify what the abstract idea is or indeed if there's an abstract idea at all.

[00:14:44] Speaker 03:
Here, it jumps off the page.

[00:14:46] Speaker 03:
The abstract idea is this teleorthodontics that the Delaware court found.

[00:14:50] Speaker 03:
This phrase without a dentist or orthodontist physically seeing the user is repeated no less than three times in claim one.

[00:14:59] Speaker 03:
In some cases, it can be a challenge, especially on a motion to dismiss, to determine whether the claim includes anything beyond the well-understood routine and conventional.

[00:15:10] Speaker 03:
Here, that's easy.

[00:15:11] Speaker 03:
The specification tells us that the patent does not teach any advances in the way the scan is conducted or the way the aligners are produced.

[00:15:19] Speaker 03:
The computer elements are all conventional.

[00:15:23] Speaker 03:
The communication elements are all conventional.

[00:15:25] Speaker 03:
And SDC is not alleging that it made any improvements in those areas.

[00:15:30] Speaker 03:
Plain and simple, this is a patent about the workflow, not a patent about any improvements in the technology.

[00:15:38] Speaker 03:
So we start with Alice, step one, of course, are the claims directed to an abstract idea?

[00:15:43] Speaker 03:
And as Judge Toronto correctly pointed out, the way you do that is to see or look at what the focus of the claimed advance is.

[00:15:53] Speaker 03:
And here there's no question that the focus of the claimed advance is this concept of eliminating the co-location of the dentist and the patient.

[00:16:03] Speaker 03:
And the specification confirms this, the specification confirms

[00:16:07] Speaker 03:
that the only possible advance is this abstract idea itself.

[00:16:11] Speaker 03:
If we look at the passage that opposing counsel was looking at a few moments ago, this is at Appendix Page 38, Line 1, excuse me, Column 1, Lines 38 to 54 of the specification, the problem discussed has to do with the problem

[00:16:28] Speaker 03:
of perhaps the molds have errors in them and the patent observes that that could require the user to go back to the dentist multiple times.

[00:16:39] Speaker 03:
And so it's observing a problem in the workflow.

[00:16:42] Speaker 03:
And the solution it's offering is, once again, to eliminate this co-location between the dentist and the patient.

[00:16:51] Speaker 03:
The prosecution history confirms this.

[00:16:53] Speaker 03:
During the prosecution of this application, the applicants were faced with a rejection over the Breland priority.

[00:17:01] Speaker 03:
SBC and arguing over Breland did not point to any technical improvements.

[00:17:06] Speaker 03:
It pointed only to this

[00:17:08] Speaker 03:
without the user physically or at the dentist, excuse me, physically seeing the user limitation.

[00:17:15] Speaker 03:
And I would direct the court to Appendix Page 136 where the applicant stated, Paragraph 53 of Breland clearly requires the patient to attend a meeting with the treating professional at which point the treating professional physically sees the patient.

[00:17:30] Speaker 03:
It went on to argue that unlike Greenland, our claim, amended claim one, recites the approval is received without the dental or orthodontic professional having physically seen the user.

[00:17:43] Speaker 03:
SDC's complaint confirms this.

[00:17:46] Speaker 03:
SDC refers, this is appendix page 57 at paragraph three, SDC's complaint refers to what it calls its revolutionary workflow as a key technological contribution.

[00:17:59] Speaker 03:
Appendix page 60 at paragraph 16 of the complaint, SDC states that its model revolutionized the way doctors interact with patients by eliminating the need for the dentist or orthodontist to see the patient in a brick and mortar setting and to instead see them using today's technology.

[00:18:22] Speaker 03:
This is exactly the abstract idea that the Delaware court identified, and this phrase, today's technology,

[00:18:29] Speaker 03:
is especially important.

[00:18:31] Speaker 03:
It underscores that all SDC did here was build a workflow around existing technology.

[00:18:39] Speaker 03:
And if we need to look any further, SDC's blue brief confirms this.

[00:18:43] Speaker 03:
SDC's blue brief at page four refers to, by contrast, the 522 patent discloses systems and methods for manufacturing aligners using a distributed impression generation analysis

[00:18:56] Speaker 03:
without a dentist or orthodontist physically seeing the user.

[00:19:02] Speaker 03:
All of the evidence we have here speaks with one voice, and that voice tells us that this is a patent about an abstract idea.

[00:19:11] Speaker 03:
So then we get to Alice step two.

[00:19:13] Speaker 03:
Do the claims contain an inventive step?

[00:19:15] Speaker 03:
And here the answer is clearly no.

[00:19:17] Speaker 03:
The claims involve routine scanning, generic computers, and conventional manufacturing processes.

[00:19:25] Speaker 03:
And contrary to opposing counsel, the Delaware court did not engage in any impermissible fact finding to determine that.

[00:19:32] Speaker 03:
As to scanning, I'd reference the court to appendix page 44, which is the patent at column 14, line 4 to 5.

[00:19:41] Speaker 03:
The patent states that

[00:19:42] Speaker 03:
Such scanning capabilities presently exist through the use of the iTero scanner.

[00:19:48] Speaker 03:
The iTero scanner is an off-the-shelf scanner that's made by a company called Align.

[00:19:54] Speaker 03:
As to computer systems, appendix page 47, patent at column 19, lines 63 to 67, the embodiments of the present disclosure may be implemented using existing computer processors.

[00:20:08] Speaker 03:
And then as to producing aligners, which is the step I think that SDC focuses the most on, there is an utter lack of detail in the claims and the specification on the manufacturing process.

[00:20:21] Speaker 03:
And importantly, SDC is not alleging or arguing that it invented anything new with respect to manufacturing.

[00:20:29] Speaker 03:
And SDC's reply brief is complete, replete, excuse me, with

[00:20:35] Speaker 03:
concessions with admissions that the technological elements of these claims were well known.

[00:20:41] Speaker 03:
So if we look at the yellow brief on page 24, SDC refers to the unremarkable fact that existing equipment may be utilized for steps requiring, for example, computers or intraoral scanners.

[00:20:55] Speaker 03:
yellow brief at page 25, SDC concedes that its workflow may be implemented using routine scanning technology, generic computers, and routine communication technology.

[00:21:07] Speaker 03:
And lastly, and this goes to the manufacturing step, the so-called manufacturing step,

[00:21:12] Speaker 03:
SBC conceived that fabricating aligners was, and I'm quoting here, a well-known orthodontic practice.

[00:21:21] Speaker 03:
This step of producing aligners cannot save SBC's claims, and that's because it's just one of multiple generically described steps in this overall workflow.

[00:21:34] Speaker 03:
The claims do not describe, as it would be required to do, a step-by-step method for producing aligners.

[00:21:41] Speaker 03:
The claims simply say produce them.

[00:21:43] Speaker 03:
And this is in very sharp contrast to the cases that SDC cites in support of its case.

[00:21:49] Speaker 03:
So in Diamond v. Deer, for example, which opposing counsel referenced, there there was a step-by-step process curing rubber.

[00:21:59] Speaker 03:
As the court found, it began with the loading of a mold with raw, uncured rubber, and it ended with the eventual opening of the press at the end of the cure.

[00:22:07] Speaker 03:
The Nike case was similar.

[00:22:09] Speaker 03:
The Nike case patent involved or claimed a step-by-step process for incorporating a textile element into an article of footwear.

[00:22:19] Speaker 03:
We just don't have those kinds of things here.

[00:22:22] Speaker 03:
All we have is the very generically recited step of producing aligners.

[00:22:31] Speaker 03:
Now I'd like to address some of the points that the SDC has made in both their opening brief and their reply brief.

[00:22:38] Speaker 03:
And the first one I'd like to address is this argument that the Delaware court did not apply the proper presumption of validity.

[00:22:47] Speaker 03:
And on this, Your Honor,

[00:23:01] Speaker 03:
On this, Your Honor, it's of no moment that the Delaware Court here did not recite the clear, expressly recite or reference the clear and convincing standard.

[00:23:11] Speaker 03:
The Delaware Court did acknowledge that standard at the hearing on this motion to dismiss.

[00:23:18] Speaker 03:
And the Delaware Court's opinion, as I believe this court will recognize, is extremely thorough.

[00:23:23] Speaker 03:
The Delaware Court's written opinion recites the standard on a motion to dismiss.

[00:23:28] Speaker 03:
The Delaware Court's opinion here recites the standard for a Section 101 analysis, and the Delaware Court carefully considered and rejected all of SDC's arguments, including its argument that fact discovery and claim construction were necessary here.

[00:23:44] Speaker 03:
I heard opposing counsel, SDC's counsel,

[00:23:46] Speaker 03:
make reference to an argument it made that the question of claim construction needed to be undertaken to address whether the steps needed to be performed in a certain order.

[00:23:59] Speaker 03:
The Delaware Court considered that and rejected that.

[00:24:02] Speaker 03:
And the reason the Delaware Court rejected it is because although SDC raised the issue in opposing the motion to dismiss, it never explained why the question of whether or not the steps needed to be performed in a certain order was of any importance.

[00:24:19] Speaker 03:
So the Delaware Court looked at and carefully examined all of SDC's arguments on the motion to dismiss

[00:24:26] Speaker 03:
applied the proper presumption of validity standard, applied the proper clear and convincing standard, and found these claims to be patent-ineligible.

[00:24:36] Speaker 03:
Next point I'd like to address is this argument that the USPTO's issuance or allowance of a subsequent application, an application that issued as the 599 patent, should somehow, should have swayed the Delaware court and should sway this court that these claims are, in fact, patent-eligible.

[00:24:56] Speaker 03:
And, of course, neither this court nor the Delaware court are bound by an ex parte determination of a USPTO examiner.

[00:25:04] Speaker 03:
There is, of course, a certain presumption that attaches to the allowance of claims by virtue of the examiner's decision.

[00:25:11] Speaker 03:
The Delaware court recognized that presumption.

[00:25:14] Speaker 03:
But that presumption is overcome, whereas here you have overwhelming evidence that this patent is claiming ineligible subject matter.

[00:25:25] Speaker 03:
SDC argues in its reply brief that the Delaware court failed to credit SDC's allegations in the complaint and their factual statements.

[00:25:35] Speaker 03:
Their problem is that the complaint does not allege any technological improvements.

[00:25:41] Speaker 03:
At most, the only advantage that the complaint alleges

[00:25:45] Speaker 03:
is benefits that flow from this abstract idea of, again, removing the co-location of the dentist and the patients.

[00:25:55] Speaker 03:
SDC makes reference in their reply brief to allegations of SDC's proprietary and cutting-edge technology.

[00:26:06] Speaker 03:
These allegations, once again, they're going to the platform, not the underlying technology.

[00:26:11] Speaker 03:
And in any case, a bald reference to innovative or cutting edge technology is much too general to be credited as somehow providing a technological solution.

[00:26:25] Speaker 03:
SDC argues, and this one I think the point is very interesting, SDC argues that the Delaware court did not find that any factual allegations in SDC's complaint were implausible or contradicted.

[00:26:39] Speaker 03:
And really, that's exactly our point.

[00:26:41] Speaker 03:
It wasn't necessary for the Delaware court here to reject any of the allegations in the complaint to find the 522 patent invalid because the complaint never alleged any true technological improvements, nor could it.

[00:26:59] Speaker 03:
Nor could it because it didn't make any.

[00:27:01] Speaker 03:
Once again, this patent is solely about the workflow, solely about the abstract idea.

[00:27:09] Speaker 03:
Judge Clevenger properly asked opposing counsel about what is the advance here?

[00:27:16] Speaker 03:
What really is the advance here?

[00:27:18] Speaker 03:
And the only possible advance here is the movement from a workflow where patients and dentists were in the same room, where a dentist physically sees the patient, to a different workflow where the patient and the dentist never see one another.

[00:27:38] Speaker 03:
So, Your Honors, for all those reasons, we strongly believe that the Delaware Court here got it right and that this is a very, very clear case of Section 101, Patent and Eligibility, and the Court properly granted our motion to dismiss.

[00:27:54] Speaker 04:
Okay.

[00:27:54] Speaker 04:
Any more questions for Mr. Fandonato?

[00:27:58] Speaker 04:
Nope.

[00:27:58] Speaker 04:
Okay.

[00:27:58] Speaker 04:
All right.

[00:27:59] Speaker 04:
And for rebuttal, Mr. Papakostas, you have three minutes.

[00:28:06] Speaker 00:
Thank you, Your Honors.

[00:28:08] Speaker 00:
I think we just heard the question was, what's the advance here?

[00:28:13] Speaker 00:
And we need to be careful during a Section 101 analysis to not conflate that with a novelty analysis.

[00:28:22] Speaker 00:
Even if the advance is, as the district court alleged, and as we've identified, a unconventional arrangement resulting in having a dental professional

[00:28:36] Speaker 00:
remote having the treatment plan generated in an automated way that goes right into the fabrication of the aligners.

[00:28:44] Speaker 00:
This is still a patent that's directed to producing a tangible physical product, and that product is based on inputs that are personalized and specific to the user.

[00:28:56] Speaker 00:
And this product is not just merely a replication of, it's sort of transferring one form of data to an exact replication or another.

[00:29:03] Speaker 00:
This is creating aligners that are specific, that are in stages, and that are informed by a set of rules.

[00:29:12] Speaker 00:
And so even if the advance over the prior art methods is no longer co-locating a dental professional in the same office, that doesn't make this patent only about teleorthodontics, and it doesn't make this patent any more abstract when you have physical aligners.

[00:29:33] Speaker 00:
The second thing I'd like to address because I didn't get a chance to discuss the Step 2 analysis.

[00:29:39] Speaker 00:
At bottom, what we heard just now are a lot of issues of fact.

[00:29:43] Speaker 00:
It's well settled that elimination of previously required steps may be the improvement.

[00:29:51] Speaker 00:
The Federal Circuit and Rapid Litigation Management emphasize that Step 2 may find an inventive concept

[00:29:57] Speaker 00:
in a new combination of steps, even though all the constituents of the combination were well-known and in common use before the combination was made.

[00:30:04] Speaker 00:
And BASCOM tells us the Inventive Concept Inquiry requires more than recognized that each claim element by itself was known in the art.

[00:30:12] Speaker 00:
But once again, at a minimum, we have issues of fact as to whether the reduction of certain steps or whether the unconventional arrangement of having a dental professional remotely

[00:30:26] Speaker 00:
resulted in something that was well-known or routine or something that was invented.

[00:30:32] Speaker 00:
There's nothing in the record indicate that the system or the process in its ordered combination was conventional or well-known.

[00:30:41] Speaker 00:
And that's a mistake that opposing counsel just made and that mirrors the mistake that the district court made in its analysis when it viewed each element in isolation and concluded, based on that,

[00:30:55] Speaker 00:
that the entire system itself was well-known or routine or conventional.

[00:31:01] Speaker 00:
And that's just inappropriate, and that's due to the analysis.

[00:31:03] Speaker 00:
Under Atrix and Berkheimer, you know, Berkheimer tells us technology that eliminates... I'm sorry, I'm out of time.

[00:31:10] Speaker 04:
Please finish your thought.

[00:31:12] Speaker 00:
Sure.

[00:31:13] Speaker 00:
Thank you, Your Honor.

[00:31:14] Speaker 00:
Berkheimer told us that technology that eliminates redundancies, such as multiple visits and improving system efficiency here,

[00:31:20] Speaker 00:
or reducing errors in the molding process here can transform an abstract idea into a patent eligible concept.

[00:31:26] Speaker 00:
And I reference Atrix and the allegations at a minimum raise factual disputes regarding the 101 analysis, such as whether these things are conventional, well-known, or routine.

[00:31:40] Speaker 00:
So while we don't think that

[00:31:43] Speaker 00:
this court needs to reach the merits of the allows analysis at all because we think that the district courts have misapplied the proper legal standards on Rule 12.

[00:31:51] Speaker 00:
Certainly we don't think that this patent is directed to an abstract idea, but even if so, at a minimum, there are factual questions that the district court inappropriately resolved on its own without crediting the allegations in our complaint in our patent.

[00:32:08] Speaker 00:
Thank you, Your Honors.

[00:32:09] Speaker 04:
Okay.

[00:32:10] Speaker 04:
Thank you.

[00:32:12] Speaker 04:
Anything else that the panel would like to raise?

[00:32:17] Speaker 04:
Nope.

[00:32:17] Speaker 04:
Okay, thanks to both counsel.

[00:32:19] Speaker 04:
The case is taken under submission and that concludes this panel's argued cases for this morning.

[00:32:30] Speaker 02:
The honorable court is adjourned until tomorrow morning at 10 a.m.