[00:00:00] Speaker 02: Our argument is 20-1573, Speed Track versus Amazon. [00:00:05] Speaker 02: Mr. Block, whenever you're ready. [00:00:08] Speaker 04: May it please the court, Alan Block, on behalf of plaintiff appellant Speed Track. [00:00:12] Speaker 04: In the March 1995 amendment, at appendix 3183 through 3186, the inventors of the three- Mr. Block, this is Judge Raina. [00:00:22] Speaker 01: Just on a preliminary matter, and I hate to interrupt you so early, but [00:00:26] Speaker 01: Should we decide the 101 issue first and what happens if we decide one way or the other to the remainder of the case? [00:00:35] Speaker 01: Where does that leave us? [00:00:37] Speaker 04: Well, obviously the 101 issue would be dispositive of the case. [00:00:43] Speaker 04: But it's on cross appeal and it's only being raised because we've appealed the claim construction issue on the hierarchical phrase. [00:00:57] Speaker 02: This is Judge Proust. [00:01:00] Speaker 02: I was going to explore that a little with Mr. Phillips because I understood it to be a conditional cross appeal. [00:01:07] Speaker 00: Right. [00:01:07] Speaker 02: But I wanted some clarification. [00:01:10] Speaker 02: Do you understand it to be a conditional cross appeal that we only reach if we decide to decide for you on the merits? [00:01:20] Speaker 02: That's correct, Your Honor. [00:01:23] Speaker 02: Okay. [00:01:23] Speaker 02: We can get some clarification from Mr. Phillips as well. [00:01:26] Speaker 02: Okay. [00:01:26] Speaker 02: Thank you. [00:01:28] Speaker 04: In the March 1995 amendment at appendix 3183 through 3186, the inventors of the 360 patent distinguished the prior Schwartz reference by amending the claims to require that the category descriptions, which are stored in the initially defined category description table, comprise descriptive names that have no predefined hierarchical relationship with such lists to each other. [00:01:53] Speaker 04: Nothing in this amendment or in the inventor's remarks describing this amendment [00:01:57] Speaker 04: amounts to a clear and unmistakable disclaimer of category descriptions that are based on a field and value relationship where the field is a category and a value is an example of that category. [00:02:08] Speaker 04: The district court that's aired by adding this disclaimer to the ordinary meaning construction of hierarchical, which the district court had also adopted. [00:02:17] Speaker 04: These amendments to the category descriptions contained in the category description table distinguish the claim from Schwartz in two ways. [00:02:25] Speaker 04: but did not distinguish or disclaim any other relationship between a category description and something else. [00:02:32] Speaker 04: So after the amendment, the claims are part of the category. [00:02:35] Speaker 02: When you say category, do you mean, I'm sorry, I'm confused in this case by some of the terminology. [00:02:41] Speaker 02: When you say category, you use that to mean value? [00:02:44] Speaker 04: No, I use category, it's the word that the district court used to define the term field. [00:02:53] Speaker 02: Okay. [00:02:54] Speaker 04: the claim uses the different term category descriptions and the specification refers to something called category types. [00:03:06] Speaker 04: So the problem here is when the district court precluded category descriptions based on field and value relationships and then defined field to be a category, [00:03:20] Speaker 04: and to find a value to be an example of the category, what it did was preclude relationships between category descriptions, something that would describe or be an example of a category, with something like a category type, which is a category. [00:03:37] Speaker 04: So an example would be a category type is something like the word language. [00:03:43] Speaker 04: And then a category description would be something like French. [00:03:48] Speaker 04: In that example, language would be a category and French would be an example of that category. [00:03:55] Speaker 04: That relationship becomes excluded because of the court's construction. [00:04:00] Speaker 04: It shouldn't have been excluded. [00:04:02] Speaker 04: It wasn't disclaimed. [00:04:04] Speaker 04: It's not precluded at all by anything in the claims. [00:04:08] Speaker 04: So that's where the error lies. [00:04:10] Speaker 02: So your view is the only thing that was disclaimed were the hierarchical relationships between one value and another? [00:04:21] Speaker 04: Between one category description and another category description. [00:04:27] Speaker 04: That's the language in the claim after the amendment. [00:04:33] Speaker 02: This is a little puzzling to me. [00:04:36] Speaker 02: I can't think of a real world example where you would have a hierarchical relationship between values. [00:04:43] Speaker 02: Can you give me a real world example? [00:04:45] Speaker 04: That's right. [00:04:45] Speaker 04: You wouldn't have one. [00:04:46] Speaker 04: And that's what the intent of that amendment was, was to say between category descriptions, between friends. [00:04:56] Speaker 02: Do you understand my question? [00:04:58] Speaker 02: You're saying what you excluded was something that doesn't exist. [00:05:05] Speaker 04: What we exclude is the ability for something that would be, that we preclude a category description from being a field. [00:05:15] Speaker 04: That's discussed in the prosecution history on 3185. [00:05:21] Speaker 04: So because Schwartz had fields, and Schwartz has node records, which is analogous to the file information directory, [00:05:30] Speaker 04: By the amendment, there wouldn't be fields in the file information directory because category descriptions are not fields. [00:05:40] Speaker 02: They are simply... Well, did Schwartz have a hierarchical relationship between these category descriptions? [00:05:51] Speaker 04: Schwartz had two things, a field and a value. [00:05:54] Speaker 02: Can you just answer? [00:05:55] Speaker 02: I'm sorry, can you just answer the question yes or no? [00:05:57] Speaker 02: It would be helpful to me because obviously I'm having to show up. [00:06:00] Speaker 04: Schwartz did not have a hierarchical relationship between different values. [00:06:06] Speaker 04: Schwartz had a hierarchical relationship between the field and the values. [00:06:09] Speaker 02: So, but clearly you were trying to differentiate in the whole prosecution history, the point of it was to differentiate Schwartz from your claims. [00:06:20] Speaker 02: And I'm not clear on how, with your characterization of the disclaimer, [00:06:26] Speaker 02: You're just claiming something that you just said, I think, that Schwartz didn't even have. [00:06:31] Speaker 04: Can you untie that sort of present for me? [00:06:37] Speaker 04: Sure. [00:06:39] Speaker 04: Following the amendment, the claims required these category descriptions be defined in the category description table. [00:06:47] Speaker 04: Schwartz did not disclose values that were predefined. [00:06:51] Speaker 04: This created a problem. [00:06:53] Speaker 04: Schwartz's values could be just at will added to fields. [00:06:58] Speaker 04: And so what the inventor said at 3186, an advantage of the present system is that each category description must be defined before it can be associated with a file so that a user cannot select a category description at will. [00:07:14] Speaker 04: By not restricting a user to selecting defined category descriptions as presently claimed, [00:07:19] Speaker 04: Schwartz allowed creation of one of the problems the present invention solves, that is, proliferation of different descriptors for similar files. [00:07:28] Speaker 04: The inventors even went on in the next set of remarks at 1748 and explained that this requirement of defining category descriptions in the first instance before they're ever associated with a file, it's something that leads to the guaranteed search result. [00:07:47] Speaker 04: They said that a search filter can never be defined to contain descriptors that do not already exist in the indexing system. [00:07:55] Speaker 04: Now going back to the issue of fields and values, by limiting category descriptions such that they are not fields and by making it clear in the claim that the only thing that gets associated with files are category descriptions which are not fields because [00:08:12] Speaker 04: There won't be fields in the file information directory, and that distinguishes the claim from Schwartz, which requires fields in the node records. [00:08:23] Speaker 04: Unless you have any further questions, I'd like to reserve my time for rebuttal. [00:08:28] Speaker 02: Sure. [00:08:29] Speaker 02: Let's hear from Mr. Phillips. [00:08:31] Speaker 02: Thank you. [00:08:32] Speaker 00: Good morning, Your Honors, and may it please the Court. [00:08:36] Speaker 00: Good morning. [00:08:36] Speaker 00: Chief Judge Prost, I think I'd like to start with the question that you asked, which was, [00:08:42] Speaker 00: uh, whether or not what was excluded here was a null set. [00:08:47] Speaker 02: Mr. Phillips, I'm sorry to interrupt you, but could you deal with the first question that Judge Raina asked for your opponent to clarify the status of the cross-appeal? [00:08:59] Speaker 00: It is purely a conditional cross-appeal. [00:09:01] Speaker 00: If this court concludes that the district court's claim construction, which led to a stipulation of judgment in favor of the defendants is correct. [00:09:11] Speaker 00: The court need not worry about either the 101 issue or the 112F issue in this case. [00:09:20] Speaker 00: Okay, thank you. [00:09:21] Speaker 00: So to go back to the question of whether the claim construction is correct, it is decidedly obvious to me at least if you go back in time and look at this patent as of 1992, what this was designed to accomplish was pretty limited. [00:09:38] Speaker 00: It was designed, candidly, for people like me who were just learning how to use a word processor and trying to figure out how to take all of the stacks of stuff that were spread out over my office and put them onto a computer in a way that was intuitive to me and therefore allowed me to come up with file names that I would understand or at least my assistant would understand and then be able to obtain them. [00:10:02] Speaker 00: That's sensible. [00:10:03] Speaker 00: Unfortunately for the inventor, that was also precisely what Schwartz had already identified. [00:10:08] Speaker 00: And so in order to remove themselves from the limitations of Schwartz, they said, well, but that's because that's a hierarchical system. [00:10:17] Speaker 00: It inherently views these matters as fields, and therefore there are categories. [00:10:25] Speaker 00: And then within those, you have these lists. [00:10:27] Speaker 00: And we're not doing that. [00:10:28] Speaker 00: What we're trying to do [00:10:29] Speaker 00: is created purely non-hierarchical arrangement, describing it in point of fact as fieldless. [00:10:37] Speaker 00: And this is not your standard situation of claim construction in which you have a disclaimer in the prosecution history. [00:10:45] Speaker 00: This is a situation where the inventor in fact went back and changed the specific language of the claim [00:10:53] Speaker 00: to say category descriptions having no predefined hierarchical relationship with such list or each other. [00:11:01] Speaker 00: So eliminating any claim to anything that is hierarchical. [00:11:06] Speaker 00: So the idea that you could take that invention and try to read it onto these unbelievably sophisticated systems that Amazon and Best Buy and all the other retailers who are the defendants in this case have developed [00:11:20] Speaker 00: in order to allow a consumer to obtain access to the specific camera with the exact features that he or she is looking for is beyond a leap of faith. [00:11:31] Speaker 00: It's a fundamentally different system that candidly came into existence probably not long after 1992, but was designed with a much larger problem in mind than the one that the inventors had in this particular case. [00:11:47] Speaker 00: Their solution was, yes ma'am. [00:11:50] Speaker 03: This is Judge Bryson. [00:11:51] Speaker 03: Oh, Judge Bryson. [00:11:52] Speaker 00: Hi, how are you? [00:11:53] Speaker 03: Good. [00:11:55] Speaker 03: Let me see if I understand what your view of the scope of the disclaimer or the revision was. [00:12:04] Speaker 03: Do you think that it effectively disclaims systems that must use hierarchical relationships are only systems that permit the use of such relationships? [00:12:17] Speaker 00: I think it excludes systems that may use and do use hierarchical relationships. [00:12:25] Speaker 03: Anything that could be implemented in a hierarchical fashion would be outside the scope of the revised claim. [00:12:36] Speaker 00: I would argue that, although I don't think I need to go that far in this case, because we in fact obviously do use hierarchical relationships and therefore are not within the scope [00:12:45] Speaker 00: whether we would have to, I mean realistically we would have to in order to achieve what we're trying to accomplish at the end of the day. [00:12:52] Speaker 00: But I think the bottom line is they disclaimed hierarchical relationships and therefore if you use hierarchy, and it's important, the stipulation can't be any clearer that if you think of the associated fields and values [00:13:09] Speaker 00: in the way that I think anyone reasonably would understand them as being hierarchical, if you view them that way, they are, by the express terms of the patent disclaimer, not subject to this invention and therefore non-infringing. [00:13:25] Speaker 03: I understand that, but what I'm trying to figure out is whether your system [00:13:29] Speaker 03: is amenable to using a non-hierarchical structure under certain circumstances or not. [00:13:36] Speaker 03: Presumably, there could be a system in which that could be done. [00:13:39] Speaker 03: And the question would be, is that within the scope of the claims as revised? [00:13:48] Speaker 00: I'm not 100% sure what the right answer to that is, because you're talking about a world in 1992 in which you could have envisioned at least some [00:13:59] Speaker 00: simple systems being non-hierarchical that might, in fact, have still been subject to this. [00:14:06] Speaker 00: I think once you get past about 1996, 1997, it's very difficult to imagine a world in which the computer system could operate in a non-hierarchical environment and still be even remotely effective in accomplishing what the user is trying to achieve in these circumstances. [00:14:29] Speaker 00: I'm happy to turn over to 101 and 112, but the reality is... Can I ask a further... Yes, of course, Your Honor. [00:14:36] Speaker 02: Mr. Phillips, just a little more on this claim construction. [00:14:40] Speaker 02: I mean, this case is a bit confused because there were one claim construction and then a clarification. [00:14:46] Speaker 02: And you argued in red that Speed Track has conceded non-infringement even under the district court's first claim construction. [00:14:54] Speaker 02: And they come back in yellow and say, no, no, no, no, no. [00:14:57] Speaker 02: We never conceded infringement only on the first and not the second. [00:15:02] Speaker 02: So two parts. [00:15:04] Speaker 02: One, you haven't had a chance to respond to that yet. [00:15:07] Speaker 02: And relatedly, is it your view that there's a real difference in scope between the claim construction first and second? [00:15:16] Speaker 00: no i had no idea the second part of that first night actually don't think there is i think it uh... i think what happened was that the district court once it was clear precisely what the uh... what uh... speed track was focused on as the infringing actions by the defendant in this case it became clear that what we're talking about here is in fact a hierarchical system and so at that point became easier to be comfortable with the with the exclusion of [00:15:46] Speaker 00: all hierarchical arrangements as having achieved precisely what the inventor had in mind under those circumstances. [00:15:52] Speaker 00: But the bottom line is that even if you go back to the stipulated construction in Walmart, that still, and Kennedy goes back to the plain language of claim one as it applies to all of them, which is that it takes out, it's having no predefined hierarchical relationship with such list or each other. [00:16:13] Speaker 00: That language plainly says, look, we're dealing with a field list invention. [00:16:19] Speaker 00: And if you're using that, then you've got a problem. [00:16:22] Speaker 00: But if you're using a hierarchical scheme, then you're in a different world. [00:16:27] Speaker 00: And that's candidly the world in which my clients operate. [00:16:32] Speaker 00: And that's why, frankly, this is not infringing onto that understanding. [00:16:37] Speaker 00: It wouldn't have been infringing candidly even prior to the clarification by the court. [00:16:43] Speaker 00: If there are no further questions on that, I'm happy to rest on 101 and 112 because I say those are conditional cross appeals they raise to my mind. [00:16:52] Speaker 00: Interesting questions, but I don't want to... [00:16:56] Speaker 00: indulge or intrude on the court's time with issues that you may see. [00:16:59] Speaker 02: Let me just ask you one quick kind of condensed question about the 101. [00:17:04] Speaker 00: Yes, Your Honor. [00:17:05] Speaker 02: Because we've got quite a lot of jurisprudence now in that area. [00:17:09] Speaker 02: So what are the closest cases? [00:17:12] Speaker 02: Can you identify one or two cases where we held it was not patent eligible and the claims were analogous to the claims we have here? [00:17:25] Speaker 00: Well, the case is, I mean, candidly, the case that I know the very best in this entire area, obviously, is Alice. [00:17:32] Speaker 00: And I think it's incredibly, I think this case is much easier than Alice was because to me, these are, this is much more of an abstract concept that's been embodied here and adds nothing to it. [00:17:44] Speaker 00: But I think that the case that's the closest is intellectual ventures, where you're just talking about labels and identifying [00:17:51] Speaker 00: organizing located at desired resources. [00:17:53] Speaker 00: It doesn't change the computer. [00:17:55] Speaker 00: It changes how the user interacts with the computer and puts, frankly, all 99% of the work is done, candidly, by the user in this situation by creating all of the files in the system by which to obtain those files. [00:18:09] Speaker 01: Counselor, this is Judge Raina. [00:18:13] Speaker 01: With respect to the guarantee limitations, would you say that the patent improves a [00:18:20] Speaker 01: technological problem with a technological solution in that it provides you with a guarantee of your response for every time you do a search. [00:18:32] Speaker 00: The answer is no because there's not a technological solution to it. [00:18:36] Speaker 00: It's merely a statement of outcome. [00:18:39] Speaker 00: The problem with this patent is it doesn't provide an algorithm or any other method for determining whether or not [00:18:46] Speaker 00: You're going to end up with a guaranteed result other than, I suppose, the sort of common sense notion that if you create a file and put something in the file and then you call for the file, it will always give you something. [00:18:56] Speaker 00: So in the simplest use of this, I could imagine it would operate that way. [00:19:00] Speaker 00: But there's no ability for somebody to be on notice as to what you need to do in order to ensure that outcome. [00:19:09] Speaker 00: So the answer to that's no. [00:19:11] Speaker 00: That creates both a 101 problem and then becomes a complete 112 issue. [00:19:18] Speaker 00: Because at the point of novelty, right, which is this guarantee, that's the point where you have nothing but functional claiming. [00:19:25] Speaker 00: And this court has been quite clear that you cannot get over the, you cannot create the point of novelty and then turn to functional claiming as the mechanism for trying to get a patent. [00:19:35] Speaker 00: And so on either way, this is clearly an invalid patent, Your Honor. [00:19:41] Speaker 02: Thank you. [00:19:42] Speaker 00: Thank you, Your Honor. [00:19:46] Speaker 00: If there are no further questions, I urge the court to affirm. [00:19:49] Speaker 02: Hearing none, thank you. [00:19:51] Speaker 02: Mr. Block, you've got some time left. [00:19:53] Speaker 04: Yes, Your Honor. [00:19:55] Speaker 04: Thank you. [00:19:56] Speaker 04: Let me start with the hierarchical issue. [00:19:59] Speaker 04: And I want to make clear that what was amended in this claim was literally only category descriptions having no predefined hierarchical relationships with such lists or each other. [00:20:11] Speaker 04: Nothing else. [00:20:13] Speaker 04: The patent talks about these category types. [00:20:16] Speaker 04: It uses the category types in the category description table shown in Figure 3. [00:20:22] Speaker 04: So if you see Figure 3, the category descriptions are everything with the numeric identifiers, and the category types are those headings. [00:20:33] Speaker 01: And the prop, those... So counselor, is it the case, are you saying that something was disclaimed here? [00:20:42] Speaker 04: I'm saying that what was given up was what was in the amendment. [00:20:48] Speaker 01: And what the amendment says is that the category description... When you say given up, you mean disclaimed? [00:20:55] Speaker 04: I mean disclaimed through amendment, yes. [00:20:57] Speaker 01: So what do you think was disclaimed through the amendment? [00:21:02] Speaker 04: Two things. [00:21:03] Speaker 04: That the category description now must comprise a descriptive name. [00:21:07] Speaker 04: and that those same category descriptions must have no predefined hierarchical relationship with such lists to each other. [00:21:14] Speaker 04: Looking at figure three, what that's describing is only the terms having those numeric identifiers, not the four labels at the top of each column. [00:21:24] Speaker 04: Those are the category types. [00:21:26] Speaker 04: So exclude the category types, look at those columns, look at those terms. [00:21:31] Speaker 04: There's no hierarchical relationship between them. [00:21:34] Speaker 04: Agreement, for instance, the first one in the first column [00:21:37] Speaker 04: is no higher, no more subordinate or superordinate to any other one. [00:21:41] Speaker 01: Does the word pre-defined have any meaning here with respect to hierarchical relationships? [00:21:48] Speaker 04: Well, there's a description in the file history. [00:21:53] Speaker 01: Isn't that what she disclaimed? [00:21:55] Speaker 01: Pre-defined hierarchical relationships? [00:21:57] Speaker 04: Pre-defined would be something like... [00:22:01] Speaker 04: The Pandy's just talked about a predefined hierarchical relationship in Schwartz. [00:22:05] Speaker 04: And so in Schwartz there were two steps. [00:22:08] Speaker 04: There was identifying or creating the field, language, and then... This is how you can help me. [00:22:18] Speaker 01: This is what it seems to me that the amendment, the disclaimer in the amendment, and that is category descriptions that have no predefined hierarchical relationships. [00:22:30] Speaker 01: Is that what you've disclaimed? [00:22:34] Speaker 04: With such list or each other, yes. [00:22:40] Speaker 01: Well, it seems to me you gave up hierarchical relationships. [00:22:46] Speaker 04: Between category descriptions, not all hierarchical relationships anywhere else in the system, such as a relationship between a category type and a category description. [00:22:59] Speaker 04: And that's the problem with the court's construction, is it defines... Well, it seems like the amendment is fatal. [00:23:09] Speaker 01: You chopped off the head off the monster and the entire monster dies. [00:23:15] Speaker 01: It doesn't live on. [00:23:18] Speaker 04: Well, I disagree. [00:23:20] Speaker 04: I think that what's chopped off here is a relationship among category descriptions, not among any other [00:23:27] Speaker 04: uh... thing with the category description for you to realize that not what you have to wait i'm sure going to approach on and i don't i i think we were aware of the pain wavelength to drain out what if so what is such a left to such a list of it was died agreed upon by the parties can mean the category description table uh... the district court at appendix twenty two and footnote one explain died that he understood [00:23:55] Speaker 04: such list to refer to the list or arrays in the category description table because the definition or the construction for category description table required a list or arrays. [00:24:06] Speaker 04: So he just equated such list to those list or arrays of the category description table. [00:24:12] Speaker 04: So those are the lists shown in figure three. [00:24:14] Speaker 04: In other words, no category description, none of these words having the numbers next to them would be [00:24:26] Speaker 04: superordinate or subordinate into any one of these lists. [00:24:31] Speaker 04: In other words, they're flat lists. [00:24:32] Speaker 04: So you have, again, agreement is not the heading of the column. [00:24:38] Speaker 04: File type is. [00:24:38] Speaker 04: That's something different. [00:24:39] Speaker 04: That's not the category description. [00:24:41] Speaker 04: That's the category type. [00:24:46] Speaker 04: And those category types exist because they're used [00:24:50] Speaker 04: in the display to convenience the user to find the category descriptions they're interested in when they're creating their search filters. [00:24:59] Speaker 04: That's totally different than anything Schwartz described. [00:25:02] Speaker 04: Schwartz didn't have such a display. [00:25:04] Speaker 04: The examiner agreed with that at 1698. [00:25:11] Speaker 04: So the discussion in the amendment we're talking about, the discussion between the examiner [00:25:19] Speaker 04: and the inventors had nothing to do with category types. [00:25:22] Speaker 04: It wasn't mentioned. [00:25:24] Speaker 04: It wasn't described. [00:25:25] Speaker 04: What was being discussed were relationships among category descriptions only. [00:25:30] Speaker 04: And in fact, category types can be required and they're allowed in Claims 3. [00:25:38] Speaker 04: Dependent Claims 3 says, [00:25:41] Speaker 04: In addition to having a descriptive name be your category description, let's have the category description further comprise a category type designation. [00:25:52] Speaker 04: In other words, let's include the category type. [00:25:55] Speaker 04: Let's make it part of the category description, not separate from, and that's within the scope of the claims. [00:26:03] Speaker 04: It's on Appendix 117. [00:26:09] Speaker 04: In other words, that relationship, the relationship between a category or a category type and a category description was not disclaimed at all by the amendment. [00:26:22] Speaker 04: And the examiner had to understand that because he left in claim three. [00:26:26] Speaker 04: He wouldn't have allowed it if that was being, was not permitted under claim one as amended. [00:26:34] Speaker 02: Can I just go back to the list thing, this is Judge Crote. [00:26:38] Speaker 02: Does the amendment also disclaim a hierarchical relationship with the category types at the top and isn't that part of the list which you say is this table? [00:26:51] Speaker 04: No, they're not part of the list because the table was the construction for category description table was simply the list and looking at appendix 34 gives the [00:27:04] Speaker 04: the stipulated construction for category description table, which is at least one list or array containing a plurality of category descriptions. [00:27:13] Speaker 04: The category types not referred to in that stipulated construction. [00:27:20] Speaker 04: And in fact, category types are not required by the invention. [00:27:23] Speaker 04: They're the preferred embodiment. [00:27:28] Speaker 04: So when it refers to such lists, it's just referring to the lists of the category descriptions [00:27:33] Speaker 04: not the category type that heads the column or the list. [00:27:40] Speaker 02: Okay. [00:27:41] Speaker 02: Well, correct me if I'm wrong, but I didn't hear you responding at all to the cross-appeal issue on 101. [00:27:48] Speaker 02: Am I correct about that? [00:27:51] Speaker 04: I have a few points I'd like to make if I have some time. [00:27:55] Speaker 04: I want to make clear that [00:27:56] Speaker 02: Well, your time, I wasn't trying, I mean, it's your choice, but one, you don't have time, and two, if you respond, then Mr. Phillips gets his rebuttal time. [00:28:06] Speaker 02: If you don't respond, he does not. [00:28:08] Speaker 02: So, your call. [00:28:11] Speaker 04: I just want to point out that there is a improvement in computer functionality in terms of how you define a search filter that can both prevent mistyping of search queries, [00:28:23] Speaker 04: and guarantee a search result or make sure that there's always at least one file found. [00:28:29] Speaker 04: And that solved a number of problems in search functionality. [00:28:33] Speaker 04: Number one, there were hierarchical folder structures that had the problem. [00:28:38] Speaker 04: Where do you place the file in the first place and then how do you locate it again? [00:28:42] Speaker 04: And then there were these search engines described in column two at the bottom starting in line 62 all the way up through the middle of line three. [00:28:51] Speaker 04: I'm sorry, column three that described [00:28:53] Speaker 04: problems including mistyping and a number of other problems that were solved by this problem. [00:28:59] Speaker 04: So there is a technical solution here. [00:29:05] Speaker 01: What would you say is a claimed advance of the invention? [00:29:08] Speaker 01: Is it the guaranteed limitation? [00:29:11] Speaker 04: Yes, Your Honor. [00:29:13] Speaker 04: Okay. [00:29:14] Speaker 04: In addition to the combination [00:29:17] Speaker 04: that allows for the guarantee, the combination of the predefined category descriptions used in the file information directory and then used to be the search filter components. [00:29:29] Speaker 04: So the guarantees come because there's all of these things that happened beforehand. [00:29:36] Speaker 03: So let me see if I understand what your answer is to Mr. Phillips's argument that you really haven't shown a [00:29:45] Speaker 03: an algorithm or any other mechanism that implements the function that you're claiming, the function being every category description has, well, I guess it's every unit will respond with at least one component, whatever names you give to those. [00:30:13] Speaker 03: Your argument, I take it in its simplest form is that your invention is to take all the various things that were on Mr. Phillips' desk back at the time of this patent and put each of them, give each of them a name and put each of them on let's say a desktop or some early version of a desktop, each of them containing one item [00:30:43] Speaker 03: with a name and therefore no category or file or unit having a null set of entries. [00:30:55] Speaker 03: Is that basically what you're saying is the implementation of the idea? [00:31:00] Speaker 04: No, that's not correct. [00:31:02] Speaker 03: What happens here is you would create a number of... What's the implementation then other than that? [00:31:10] Speaker 03: Show me what it is that you do that's different from that and is shown in the patent to produce the result that every unit has at least one entry. [00:31:23] Speaker 04: Sure. [00:31:23] Speaker 04: Let me direct you to column 10 at line 20, appendix 113. [00:31:28] Speaker 04: In the process of search and retrieval, the invention overcomes the problem of search filter definition, ensuring that the user defines a filter which will always find at least one file. [00:31:38] Speaker 04: thus avoiding wasting time and searching for data that cannot be matched. [00:31:42] Speaker 04: This is achieved in two ways. [00:31:43] Speaker 04: First, the user is not required to type the keywords to search. [00:31:47] Speaker 04: Instead, the user simply chooses the words in random order from pick lists, making mistyping impossible. [00:31:53] Speaker 04: Second, as the user builds the search filter definition, categories which would find no data are automatically excluded as pick list possibilities. [00:32:02] Speaker 04: The specification goes on from there to describe in detail how [00:32:06] Speaker 04: what I just described works, starting at column 10, line 37, through column 11, line 16, and then picks up again at column 12, line 21, through column 13, line 52. [00:32:19] Speaker 04: And just want to make one more point about this algorithm issue. [00:32:24] Speaker 04: The idea that defendants had no idea what the algorithm was [00:32:29] Speaker 04: is belied by the description. [00:32:31] Speaker 04: They put in their own motion under 101 at appendix 662 through 664. [00:32:38] Speaker 04: They describe the algorithm in detail. [00:32:41] Speaker 04: They cited to the parts of the patent I just read to you to describe the algorithm and how a search result would be guaranteed. [00:32:50] Speaker 02: Okay, thank you. [00:32:52] Speaker 02: So Mr. Phillips, you're up again for rebuttal on the cross appeal. [00:32:58] Speaker 00: Thank you, Your Honors. [00:33:00] Speaker 00: I'll be quite brief. [00:33:01] Speaker 00: First of all, with respect to my friend's reference to mistyping, it's worth at least noting that mistyping is not one of the things that is claimed in claim number one. [00:33:11] Speaker 00: And so while that's obviously discussed, it's not a specific advance in terms of what the claims call for. [00:33:19] Speaker 00: And then with respect to the guarantee, I would ask the court simply to read what he read out loud to you. [00:33:25] Speaker 00: There is no technical explanation as to how this is achieved. [00:33:29] Speaker 00: What is described is you put things into a file. [00:33:33] Speaker 00: If for some reason things come out of the file, that file will then disappear, but no explanation of how that happens or what the technical advance is here. [00:33:41] Speaker 00: This, to me, is a fairly simple, straightforward explanation of how a logical system works, not a technical advance that would... [00:33:52] Speaker 01: Is it your view that the algorithm has to be expressed in the claim? [00:33:59] Speaker 01: Can it be expressed in the specification? [00:34:01] Speaker 00: Oh, I think the algorithm can be expressed in the specification under 112 if it's clear enough. [00:34:08] Speaker 00: The problem, obviously, is they disavow 112. [00:34:11] Speaker 00: So then in that circumstance, it seems to me it has to be in the claim. [00:34:15] Speaker 01: Yeah, for 101 purposes, does it have to be in the claim? [00:34:20] Speaker 00: I don't think it has to be in the claim strictly for 101 purposes, although in this context, 101 and 112 dovetail quite nicely, and it makes it a more complicated question. [00:34:34] Speaker 00: I don't think in the ordinary 101 issue you would necessarily have to have that, but again, you'd need to have something that was very explicit in the language that would get you to the algorithm if you don't bother to put the algorithm in. [00:34:45] Speaker 00: We don't have anything like that here. [00:34:47] Speaker 00: We simply have the statement of a result. [00:34:49] Speaker 00: And that's at the core of both what 101 and 112 preclude. [00:34:55] Speaker 00: And that's why it's invalid as a matter of law, Your Honor. [00:35:00] Speaker 02: Thank you. [00:35:01] Speaker 02: We thank both sides and the case is submitted. [00:35:04] Speaker 02: That concludes our proceeding for this morning. [00:35:06] Speaker 02: Thank you, Your Honor. [00:35:07] Speaker 04: Thank you, Your Honor. [00:35:10] Speaker 02: The Honorary Report is adjourned until tomorrow morning at 10 a.m.