[00:00:00] Speaker 01:
Our next case for argument is 21-2167, Cooperative Entertainment versus Collective Technologies.

[00:00:07] Speaker 01:
Ms.

[00:00:07] Speaker 01:
Addy, please proceed.

[00:00:11] Speaker 00:
Good morning, Your Honors.

[00:00:13] Speaker 00:
This is an appeal of a Rule 12-101 dismissal.

[00:00:17] Speaker 00:
The district court erred in disregarding the presumption of validity and ignoring the claim language and improvements.

[00:00:26] Speaker 00:
Turning first to Alice, step one.

[00:00:28] Speaker 00:
The claim requires a dynamic P2P network formed from the peer's common requests for content and based on at least one trace route.

[00:00:38] Speaker 00:
That results in improved network functionality, such as reducing latency, reducing load, et cetera.

[00:00:47] Speaker 04:
Ms.

[00:00:48] Speaker 04:
Addy, is there anything physical here, or is it all software?

[00:00:57] Speaker 00:
The content delivery server would be physical, Your Honor.

[00:01:01] Speaker 00:
The peer-to-peer nodes would be physical, Your Honor.

[00:01:04] Speaker 00:
Then I think there's also the content distribution network, which would be physical, because that's what traditionally has pushed out content to static peers.

[00:01:21] Speaker 04:
Isn't what is physical old?

[00:01:25] Speaker 00:
Oh, yes, Your Honor.

[00:01:26] Speaker 00:
What is physical is known.

[00:01:27] Speaker 04:
So what is new, you're asserting, is the P2P dynamic network being based on trace root?

[00:01:37] Speaker 00:
That's correct, Your Honor.

[00:01:38] Speaker 04:
Isn't that software?

[00:01:40] Speaker 00:
Yes, Your Honor.

[00:01:41] Speaker 00:
That's software.

[00:01:42] Speaker 04:
And so isn't that abstract?

[00:01:46] Speaker 00:
No, Your Honor.

[00:01:48] Speaker 00:
says that software and ends up its nature is abstract.

[00:01:50] Speaker 00:
And I should correct myself because the P2P network has old peers, peer nodes in the network.

[00:02:00] Speaker 00:
But what's new and neat about this invention is that this P2P network's number one dynamic.

[00:02:07] Speaker 00:
It doesn't just exist.

[00:02:08] Speaker 00:
It's not based on a subscription service like the prior art.

[00:02:12] Speaker 00:
It comes into being because the content

[00:02:16] Speaker 00:
delivery server recognizes that all of these peers are requesting the same content.

[00:02:23] Speaker 00:
And how do they do that?

[00:02:25] Speaker 00:
How does it do that?

[00:02:25] Speaker 00:
It does that because it notices that they are all using a trace route that includes the content distribution network.

[00:02:35] Speaker 00:
And because of that, then the content delivery server is able to

[00:02:41] Speaker 00:
build this dynamic peer-to-peer network that only exists for one show, one piece of streaming content.

[00:02:48] Speaker 00:
And it's able to segment the content coming from the content delivery network.

[00:02:56] Speaker 00:
And what that results in is less redundancy and better bandwidth over the network.

[00:03:03] Speaker 00:
And the way that results in that is your honor's

[00:03:08] Speaker 00:
In the old system, the content delivery network would push out an entire streaming content repeatedly to multiple different peers that were in the static network, that it was a subscriber network.

[00:03:21] Speaker 00:
But in the invention, because the content delivery server recognizes the common content request, then it instructs the peer nodes to request segments

[00:03:36] Speaker 00:
And they each request a segment of the content from the streaming service so that the streaming service isn't sending out the full content all the time.

[00:03:45] Speaker 00:
That's what's novel about this invention, Your Honor.

[00:03:49] Speaker 02:
It may be novel, but if we reach step two, what's the inventive concept?

[00:03:53] Speaker 02:
And where's the best place for me to find it in your patent?

[00:03:57] Speaker 00:
Good question, Your Honor.

[00:03:59] Speaker 00:
First, I think I want to go back to step one, but I'm jumping to step two.

[00:04:11] Speaker 00:
Although the court ignored these specific claim limitations that I've been discussing this morning for step one, it should have considered them when performing the inventive concept of step two.

[00:04:22] Speaker 00:
And CEI specifically pledged, Your Honor, that the PTO considered the novelty of the claimed trace routes that further segment content that's being delivered.

[00:04:35] Speaker 00:
And that's in the prosecution history at page 258-7, and it was pled by

[00:04:41] Speaker 00:
plaintiff in the complaint.

[00:04:43] Speaker 02:
Does novelty alone, though, get you what you need at step two?

[00:04:47] Speaker 00:
Novelty is the search for inventive concepts, so it's a start.

[00:04:52] Speaker 00:
And because the patentee pled the specific facts relating to the process at the PTO, he specifically pled portions of the office action response, portions of the

[00:05:09] Speaker 00:
reasons for allowance that the patent examiner stated, then those pleadings are entitled to deference under the presumption of validity, which the court ignored.

[00:05:21] Speaker 00:
Additionally, Your Honor, in paragraph 12 of the amended complaint, CEI alleged that this inventiveness arose from the prior art's failure to disclose the specific dynamic P2P network based on this trace route.

[00:05:37] Speaker 00:
And if you look at what he's citing in the prosecution history, the examiner was relying on a patent in Weller called Weller that talked about a traditional use of a trace route just to determine the efficiency of the path.

[00:05:53] Speaker 00:
But here, they're not using the trace route to determine the efficiency of the path.

[00:05:57] Speaker 00:
They're using it to create a network based on the recognition of this common request for content.

[00:06:04] Speaker 00:
Your Honor, this is like the Unilop case.

[00:06:09] Speaker 00:
Specifically, in Unilog, the court held that reduction in latency improves network functionality.

[00:06:19] Speaker 00:
And that satisfied Alice step one.

[00:06:23] Speaker 00:
And here, the specification identifies a reduction in latency.

[00:06:28] Speaker 00:
It addresses other improvements, such as increasing capacity and overcoming issues of bandwidth and delay.

[00:06:35] Speaker 00:
So put in simple terms.

[00:06:38] Speaker 00:
The claims improve the network capacity, thus improving network functionality by identifying peers who request the same content, by using the trace route in a new way that the patent office recognized had never been used before, to create these dynamic networks, and also to segment the data coming from the content distribution network based on the trace route.

[00:07:04] Speaker 01:
Council, the referee suggests that your final

[00:07:08] Speaker 01:
claim limitation, the wherein clause that is the only place where segmenting the data requires using the traceroute to do so.

[00:07:16] Speaker 01:
He seems to, I think, treat in his brief the and in that limitation as an or, because he's suggesting that you could segment using any one of the list of things.

[00:07:29] Speaker 01:
But this claim limitation was added during prosecution.

[00:07:33] Speaker 01:
And you specifically argued during prosecution in your response to the office action that you were incorporating, requiring the trace route to be used in the segmentation.

[00:07:45] Speaker 01:
So I guess this is kind of a, it seems like a dumb question.

[00:07:49] Speaker 01:
But when you say and, you mean and, such that the trace route has to be one of the things used in segmentation.

[00:07:55] Speaker 01:
you don't mean or the traceroute could be used, or you could use the CDN and P2P server manager, or you could use dynamic feedback, or when you say and, you mean and.

[00:08:05] Speaker 01:
And in that way, you have required the traceroute to be used as part of the segmentation process.

[00:08:10] Speaker 01:
Is that correct?

[00:08:11] Speaker 00:
That's correct, Your Honor.

[00:08:12] Speaker 00:
And there's an additional fact, and the content delivery server

[00:08:23] Speaker 00:
uses the trace route to segment content specifically.

[00:08:28] Speaker 00:
And that is addressed in the wearing clause directly above.

[00:08:33] Speaker 00:
Let me make sure.

[00:08:33] Speaker 00:
Two above.

[00:08:36] Speaker 00:
Two above.

[00:08:36] Speaker 00:
You're right.

[00:08:37] Speaker 00:
That is addressed in the wearing clause two above the wearing clause you just cited.

[00:08:41] Speaker 00:
So in addition to this conjunctive requirement in the final wearing clause that was cited by the examiner as one of the reasons for allowance,

[00:08:52] Speaker 00:
Patentee also specifically required the use of trace route in what is now the first wearing clause in the claim.

[00:09:00] Speaker 00:
And it has to be based using trace route to segment content.

[00:09:04] Speaker 00:
So it's required twice, Your Honor.

[00:09:05] Speaker 01:
Is it fair for me to express your argument in the following way?

[00:09:09] Speaker 01:
You argue throughout the book brief that trace routes were not previously used in segmentation and that

[00:09:18] Speaker 01:
You have alleged that there are true benefits from using traceroutes in segmentation, reliability, redundancy, efficiency in the delivery.

[00:09:31] Speaker 01:
And it's not for this court at the 12b6 stage to decide whether those allegations are, in fact, accurate or correct or to weigh them or for us to dig into the prior art to see whether those allegations are true.

[00:09:45] Speaker 01:
They're made in the complaint, and we have to accept them as true at this stage.

[00:09:48] Speaker 01:
Is that correct?

[00:09:49] Speaker 00:
That is correct with a little further detail.

[00:09:53] Speaker 00:
In addition to the use of trace routes, the dynamic peer-to-peer network that's formed is also not found in the prior ART with respect to a content distribution server because the prior ART deals with the CDN.

[00:10:12] Speaker 00:
The prior ART deals with the CDN

[00:10:15] Speaker 00:
pushing information out to these static peers who subscribe to the CDN.

[00:10:20] Speaker 00:
But the dynamic peer-to-peer network is created, again, based on the recognition that this trace route shows that all these peers are requesting common content.

[00:10:29] Speaker 01:
So just for clarification, what I said about the wearing clauses that involve trace routes, yes, you agree with everything there.

[00:10:36] Speaker 01:
Yes, ma'am.

[00:10:37] Speaker 01:
What you're adding to that is the claim limitation to

[00:10:40] Speaker 01:
which says at least one peer-to-peer dynamic network and which goes through and explains the details of that, that that is also novel and that you argued that in your brief, you argued that or alleged in the complaint, and you discussed the benefits of this novel system at multiple places throughout the patent.

[00:11:01] Speaker 01:
So you're saying we have multiple points of

[00:11:04] Speaker 01:
inventive concept that ought to have precluded 12b6.

[00:11:07] Speaker 01:
You're not disputing what I previously suggested.

[00:11:11] Speaker 01:
You're saying there are multiple points in this claim expressly claimed that should have precluded 12b6.

[00:11:17] Speaker 01:
Is that a fair characterization?

[00:11:18] Speaker 00:
That's correct, Your Honor.

[00:11:19] Speaker 00:
And I would add one more point, which is that we didn't simply state these advantages untethered to the patent or the specification history.

[00:11:30] Speaker 00:
In the complaint, the patentees cited the specification history of the patent.

[00:11:34] Speaker 00:
the prosecution history and the patent and the specific back and forth between the examiner and the patentee.

[00:11:43] Speaker 02:
If this case were to go forward, I just want to make sure I understand.

[00:11:46] Speaker 02:
Your view of that last where in clause is that when in order to practice the claim, you have to use all of those things that are listed.

[00:11:55] Speaker 02:
That's what and meaning and means.

[00:11:57] Speaker 02:
Is that right?

[00:12:00] Speaker 02:
It's, where is the and?

[00:12:02] Speaker 00:
It's the next to last line of the claim.

[00:12:04] Speaker 00:
Got it.

[00:12:05] Speaker 00:
So it has to use everything before the and, and then it has to use its neighbors, round robin, and then it says other server-side scheduling resource allocation techniques.

[00:12:17] Speaker 00:
So what we read that to be is kind of like a comprising clause.

[00:12:22] Speaker 00:
So it has to have everything in there with the and, and then some other server-side scheduling resource allocation technique that was known in the art.

[00:12:32] Speaker 02:
So does that still mean it has to use traceroutes?

[00:12:35] Speaker 00:
Yes, it does.

[00:12:36] Speaker 00:
Because the AND is prior to the traceroutes.

[00:12:39] Speaker 00:
It says, content segmentation is based on CDN address resolution, traceroute to CDN, and P2P server, and these other things.

[00:12:49] Speaker 02:
So it has to use all those things before the AND, and then also use some other server-side scheduling resource allocation technique in order to practice claim one.

[00:13:01] Speaker 00:
I think that's correct, Your Honor.

[00:13:02] Speaker 02:
And then I know there's a dispute over which claims the district court should have reached or shouldn't have reached.

[00:13:08] Speaker 02:
Yes, Your Honor.

[00:13:09] Speaker 02:
If this case goes forward, are you only pressing claims one through three and five, and you're not pressing any other claims?

[00:13:16] Speaker 00:
Right now, Your Honor, this case was dismissed at the complaint stage.

[00:13:20] Speaker 00:
So there's been no responsive pleading, no discovery, nothing else.

[00:13:24] Speaker 00:
But the only claims that are at issue right now

[00:13:27] Speaker 00:
are one through three and five.

[00:13:29] Speaker 02:
But if you're reserving the right to press additional claims at any point in the case, doesn't that mean the defendant has a right to raise a rule 12 motion with respect to all of the claims?

[00:13:40] Speaker 00:
No, Your Honor.

[00:13:41] Speaker 00:
The defendant can only raise a rule 12 with respect to what we have pled right now.

[00:13:46] Speaker 00:
But if we were to file an amended complaint that adds additional claims, then the

[00:13:52] Speaker 00:
Defendant could plead a Rule 12 motion at that time.

[00:13:55] Speaker 02:
Under the Northern District of California local rules, do you have to amend your complaint in order to assert another claim?

[00:14:02] Speaker 00:
Your Honor, I don't know that answer, but I believe, yes, you do.

[00:14:07] Speaker 00:
Thank you.

[00:14:10] Speaker 01:
Would you like to save your remaining time for rebuttal?

[00:14:13] Speaker 00:
Yes, Your Honor.

[00:14:13] Speaker 00:
Thank you.

[00:14:14] Speaker 01:
Mr. Deller, can you hear us?

[00:14:17] Speaker 03:
I can.

[00:14:18] Speaker 01:
Thank you.

[00:14:19] Speaker 01:
Please proceed.

[00:14:21] Speaker 03:
May it please the court.

[00:14:22] Speaker 03:
Good morning, Your Honors.

[00:14:23] Speaker 03:
My name is Michael Dowler, and I represent the Happily Collective Technology.

[00:14:28] Speaker 03:
Let me first say thank you for hearing us this morning, and thank you for allowing me to participate remotely in light of the current health conditions my family is experiencing.

[00:14:39] Speaker 03:
With your permission and with time permitting, I'm going to address three things.

[00:14:42] Speaker 03:
First, I'm going to focus on the claim language.

[00:14:45] Speaker 03:
We've heard a lot in the briefing and in the argument today.

[00:14:49] Speaker 03:
and some questions from your owners about what actually is and isn't in the claim language.

[00:14:54] Speaker 03:
And since this is an issue that does turn on the claim language specifically, I'm going to go through in detail claim one.

[00:15:04] Speaker 03:
And then following that, I'll talk about the Mayo Alice step one and the Mayo Alice step two.

[00:15:13] Speaker 03:
So getting started with the claim, we're talking, and this is,

[00:15:21] Speaker 03:
The claim starts with a system for virtualized computing peer-based content sharing comprising two basic structural components followed by seven wear-in clauses.

[00:15:37] Speaker 03:
The first structural component is the first limitation.

[00:15:40] Speaker 03:
It says at least one content delivery server computer constructed

[00:15:46] Speaker 03:
and configured for electrical connection and communication via at least one communication network.

[00:15:51] Speaker 03:
So essentially we have a content delivery server computer that contains content that it's going to push out in what we'll see next as this peer-to-peer dynamic network.

[00:16:06] Speaker 03:
Where secondly the claim says at least one peer-to-peer dynamic network including a multiplicity of peer nodes

[00:16:13] Speaker 03:
So we've got the content delivery network sitting above as the server, and below it we have this peer-to-peer network that's made up of a multiplicity or a number of individual peer computers.

[00:16:27] Speaker 03:
That's where the claim stops in terms of its structural components.

[00:16:32] Speaker 03:
That's the apparatus, because next we have this series of where-in pauses that don't add any structure, but rather simply characterize

[00:16:42] Speaker 03:
this network in terms of its function but not in terms of its structure.

[00:16:47] Speaker 03:
So the first wherein clause says wherein the multiplicity of peer nodes consume the same content without a predetermined time.

[00:16:56] Speaker 03:
That's just simply saying these peer nodes are people sitting at their computers and they may watch the same movie at the same time.

[00:17:06] Speaker 03:
The next where-in clause is wherein the multiplicity of peer nodes are constructed and configured for electronic communication over at least one peer-to-peer dynamic network.

[00:17:18] Speaker 03:
Okay, so the peers are just simply connected together so they can communicate among each other.

[00:17:23] Speaker 03:
And that's typical in these peer-to-peer networks where the peers get their information from each other and not necessarily from the content delivery network.

[00:17:32] Speaker 03:
Content delivery network will usually push out the data one time

[00:17:36] Speaker 03:
in segments, which we'll see, and that data is shared among peers so that each peer can then collect all of the information that it needs.

[00:17:48] Speaker 03:
The next where-in clause, it says, where-in the at least one peer-to-peer dynamic network is based on at least one trace route.

[00:17:57] Speaker 03:
Okay, so this is the first time we hear of this concept of a trace route.

[00:18:00] Speaker 03:
And all this is saying is these collections of peers are collected

[00:18:06] Speaker 03:
according to a trace route.

[00:18:07] Speaker 03:
A trace route is just the route that data takes between the server and the peer.

[00:18:13] Speaker 03:
So ordinarily, you will collect peers that get their data across the same trace route.

[00:18:23] Speaker 03:
The next where in clause is where in the multiplicity of peer nodes is distributed outside the control networks and or content delivery networks.

[00:18:31] Speaker 03:
This is just simply saying the peers are outside the network

[00:18:35] Speaker 03:
of the content delivery network.

[00:18:38] Speaker 03:
They're in their own network.

[00:18:40] Speaker 03:
So there's a series probably of servers between the content delivery server and the peer-to-peer network.

[00:18:50] Speaker 03:
And then we get to the next where in clause.

[00:18:56] Speaker 03:
It says where in the at least one content delivery server computer is operable

[00:19:02] Speaker 03:
To store viewer information, check content requests, use the trace route to segment, request the content, find peers, and return client log peers.

[00:19:11] Speaker 03:
So this is simply saying that the content delivery server says operable, which typically means capable.

[00:19:18] Speaker 03:
As it's sitting there, it's capable of identifying who the peers are, it's capable of segmenting the data according to a trace route, it's capable of finding peers,

[00:19:31] Speaker 04:
Counsel, this is a very good and extensive analysis of the claim.

[00:19:37] Speaker 04:
But what are you saying with respect to abstractness?

[00:19:42] Speaker 03:
Where I'm getting, Your Honor, is when we get to step one and step two, I'm going to point out that there's really nothing about this claim that is an improvement to a computer itself.

[00:19:53] Speaker 03:
There's simply two components here to the computer, a content delivery server,

[00:19:59] Speaker 03:
and a peer-to-peer network, the rest of the claim is simply functional language that doesn't add anything, that doesn't improve the operation of the computer at all.

[00:20:09] Speaker 01:
Well, it's not a matter of improving the operation of the computer.

[00:20:12] Speaker 01:
It's a matter of improving the operation of the network.

[00:20:15] Speaker 01:
That's what's claimed here.

[00:20:18] Speaker 01:
A computer is not a network, right?

[00:20:21] Speaker 01:
Those are two different things.

[00:20:24] Speaker 03:
Yes, that's right.

[00:20:27] Speaker 03:
When I say a network or a computer or a network, it's the same thing.

[00:20:33] Speaker 01:
Except they're not the same thing.

[00:20:36] Speaker 03:
They're not the same.

[00:20:37] Speaker 03:
A network is made up, in this case, of a series of computers and the content delivery networks.

[00:20:44] Speaker 01:
So why don't I try to focus you on the two things that I understand cooperative to alleged

[00:20:51] Speaker 01:
are inventive concepts.

[00:20:53] Speaker 01:
And you can maybe help me understand why, based on their complaint and the patent and the prosecution history, we can't, at the 12b6 stage, do what Cooperative alleges.

[00:21:07] Speaker 01:
The first would be a wearing clause you are about to get to, wherein the multiplicity of peer nodes is distributed outside controlled networks and or content distribution networks that are included.

[00:21:20] Speaker 01:
I understand the one of the inventive concepts to be argued and it's throughout the brief and it's also mentioned in the specification and the complaint.

[00:21:30] Speaker 01:
I understand that to be one of the benefits is that these peer to peer networks share information with each other and don't need to go back and recapture it from

[00:21:41] Speaker 01:
the server the main server like for example if 10 of us want to watch the Super Bowl rather than all 10 of us streaming the Super Bowl from the server which would put a lot of tax on the whole system with 10 people simultaneously streaming what the alleged invention is as claimed in that wherein clause is that the peers can share the segmented information among themselves and without the need to go back to the CDN directly in order to get it and

[00:22:11] Speaker 01:
So why?

[00:22:13] Speaker 01:
I understand your view.

[00:22:15] Speaker 01:
Maybe that's not novel.

[00:22:18] Speaker 01:
That's been going on.

[00:22:19] Speaker 01:
That's what the concept of peer-to-peer networks have always done.

[00:22:23] Speaker 01:
The problem is this is at the 12b6 stage.

[00:22:26] Speaker 01:
The patent, the complaint, and the briefs before us allege that that is new and was not done before.

[00:22:34] Speaker 01:
And I don't see anything to the contrary.

[00:22:38] Speaker 01:
I've got to give in.

[00:22:40] Speaker 01:
to all reasonable inferences in favor of their allegations.

[00:22:45] Speaker 01:
So what do I do with that?

[00:22:48] Speaker 03:
Well, I disagree with what you said, Your Honor, respectfully.

[00:22:52] Speaker 03:
The patent in the prior background will show you that peer-to-peer sharing has been known for decades.

[00:23:00] Speaker 03:
There's nothing new about peer-to-peer sharing.

[00:23:03] Speaker 03:
And the fact that they may allege that, and I don't even know that they actually did allege that peer-to-peer sharing is something novel or new in and of itself.

[00:23:12] Speaker 03:
I don't believe that to be the case.

[00:23:14] Speaker 03:
And the background of the patent will show that that is.

[00:23:19] Speaker 01:
Why don't you turn to paragraph 13 of the complaint?

[00:23:23] Speaker 01:
where they allege the 452 patent discusses some of the benefits of this novel technique.

[00:23:29] Speaker 01:
Peer nodes or content recipients of the same content provide for redirecting content among the peer nodes, thereby bypassing any established or static

[00:23:39] Speaker 01:
Content Delivery Network.

[00:23:41] Speaker 01:
Advantageously, this saves time, improves redundancy, and also reduces and eliminates costs for content delivery over the CDN for the peer nodes.

[00:23:50] Speaker 01:
By the way, the same language is mirrored in the patent at column 5 and elsewhere.

[00:23:55] Speaker 01:
So the patent claims that this is new.

[00:23:57] Speaker 01:
The complaint expressly claims that this is new.

[00:24:01] Speaker 01:
Whether I think it's new or not seems irrelevant at the 12b6 stage.

[00:24:10] Speaker 03:
It is irrelevant under this court's precedent, your honor, whether, and I would still say that the peer-to-peer sharing, and I wish I could find it for you very quickly, the peer-to-peer sharing of information is old and it's been done decades.

[00:24:26] Speaker 01:
Now, Council, there's no doubt that peer-to-peer networks existed prior to this patent, and the specification in the background section admits as much, but they say that the peer-to-peer networks never communicated to each other in this way, and this method of communication where you can bypass the CDN for getting the actual content creates enormous efficiency for the overall system.

[00:24:53] Speaker 01:
That's what they claim is novel.

[00:24:55] Speaker 01:
So they admit peer-to-peer networks existed, but the way in which this peer-to-peer network is constructed and communicates among itself creates enormous efficiency in the delivery of information across the system.

[00:25:08] Speaker 01:
That's what's alleged.

[00:25:09] Speaker 01:
It says that in the patent.

[00:25:10] Speaker 01:
It says that in the complaint.

[00:25:12] Speaker 01:
I don't see how, at the 12b6 stage, I can say, eh, doesn't sound right to me.

[00:25:17] Speaker 01:
You're out.

[00:25:19] Speaker 03:
I understand, Your Honor.

[00:25:20] Speaker 03:
It doesn't say that in the claim, though.

[00:25:22] Speaker 03:
It's the claim that controls.

[00:25:23] Speaker 01:
Actually, it does say in the claim, expressly, in that where-in clause, that this information is distributed among the peer nodes outside controlled networks or the content distribution network.

[00:25:37] Speaker 01:
So it does say that the distribution of content is among the peer nodes, not going back to retrieve it from the CDN.

[00:25:47] Speaker 03:
Yes.

[00:25:48] Speaker 03:
And that's simply peer-to-peer sharing.

[00:25:50] Speaker 03:
That has nothing to do with efficiency or anything like that.

[00:25:55] Speaker 03:
But let's say you're right.

[00:25:57] Speaker 03:
Let's say that it does create an efficiency.

[00:26:01] Speaker 03:
The cases, and we cited a bunch of them about this issue, is that simply using a computer network to speed things up

[00:26:15] Speaker 03:
is not something that makes the alleged invention non-abstract.

[00:26:21] Speaker 03:
Simply using a computer to speed things up, again, are situations where cases have decided that they can still be abstract.

[00:26:31] Speaker 03:
For example, in two-way media versus Comcast cable communications, and three intellectual ventures cases, intellectual ventures versus eerie indemnity,

[00:26:42] Speaker 03:
Intellectual Ventures versus Symantec, Intellectual Ventures versus Capital One.

[00:26:47] Speaker 02:
Council, I'm going to interrupt.

[00:26:49] Speaker 03:
Other cases have been cited.

[00:26:50] Speaker 03:
Bi-Safe One, NMAT-LI Communications, Burkheim, Electric Power Group.

[00:26:55] Speaker 03:
All of these cases are very similar in the sense that they are computer-related inventions, software inventions, that I believe Jen is referring to.

[00:27:06] Speaker 03:
Mr. Dowd?

[00:27:07] Speaker 03:
Can you hear us?

[00:27:09] Speaker 03:
You can.

[00:27:19] Speaker 02:
OK.

[00:27:20] Speaker 02:
Thank you.

[00:27:21] Speaker 02:
It's Judge Stark.

[00:27:23] Speaker 02:
You can hear me, right?

[00:27:25] Speaker 02:
Yes, I can.

[00:27:25] Speaker 02:
OK.

[00:27:26] Speaker 02:
So we're familiar with those cases.

[00:27:28] Speaker 02:
There's also cases, though, that say that a technical improvement or a technical solution to a technical problem does survive 101.

[00:27:38] Speaker 02:
And we have allegations here that would be consistent with that line of cases.

[00:27:43] Speaker 02:
Don't we have to take those as true at this stage?

[00:27:46] Speaker 03:
I think you'd have to look and see whether the allegations are reflected in the claims themselves.

[00:27:50] Speaker 03:
There's a lot of allegations in the complaint that are simply not reflected in the claims.

[00:27:55] Speaker 02:
And that's why I was... And what is it that you say is not reflected in the claims?

[00:27:59] Speaker 02:
Is it this whole issue of how the trace routes are used or not used?

[00:28:03] Speaker 03:
That's certainly one of them.

[00:28:05] Speaker 03:
I mean, if you read their briefing at the district board and here, they focus solely on using trace routes to segment data.

[00:28:12] Speaker 03:
I mean, it's in their brief 32 times.

[00:28:18] Speaker 03:
I heard a little bit of a different argument today in response to some of your questions.

[00:28:23] Speaker 03:
There is now saying that it's not simply using the traceroute to segment data, but rather using a traceroute in everything else in the last wherein clause.

[00:28:33] Speaker 01:
Yes, but counsel, she has alleged that never before were traceroutes used to segment the data, and that this has all kinds of advantages doing this.

[00:28:47] Speaker 01:
And I don't even see in your red brief where you dispute

[00:28:51] Speaker 01:
the novelty of using traceroutes or the advantages achieved by them.

[00:28:55] Speaker 01:
Instead, I see you focused on a claim construction argument related to the last wherein clause, where it seems you want us to turn the word and into the word or, where you want to say, you don't argue traceroutes aren't novel, using them for segmentation, and you don't argue they don't provide advantages.

[00:29:12] Speaker 01:
You only argue they aren't required by the claims.

[00:29:15] Speaker 01:
But if the word and is construed as an and, which

[00:29:19] Speaker 01:
Ms.

[00:29:20] Speaker 01:
Addie said it should be and is, then they are in fact required to be used.

[00:29:25] Speaker 01:
So what is your response to that?

[00:29:27] Speaker 03:
Yes, I'm going to accept Ms.

[00:29:29] Speaker 03:
Addie's representation that the last where-in clause requires all of those things, including trace routes, and including, in fact, even other server-side resource allocation techniques.

[00:29:42] Speaker 03:
Our point is that simply, you use

[00:29:46] Speaker 03:
Use whatever technique you want to segment data.

[00:29:50] Speaker 03:
You're still just segmenting data and then transferring data through a network.

[00:29:54] Speaker 03:
And that's abstract according to all of these cases.

[00:29:56] Speaker 03:
It doesn't matter whether it's a trace route or not.

[00:29:58] Speaker 01:
Yes, but even if she actually, we didn't really even let her get to the abstractness point.

[00:30:03] Speaker 01:
Even if it is in fact abstract, there could still be an inventive concept in using a new particular form of data like trace routes

[00:30:14] Speaker 01:
in doing that segmentation.

[00:30:16] Speaker 01:
So while separating and sending out data may be an abstract concept in the highest level, the particular way they have alleged that it's done is a way that they claim was never done this way before and creates advantages.

[00:30:32] Speaker 01:
So under step two, even if you're correct as to the abstractness, the claim still survives the 12b6 stage based on the allegations.

[00:30:42] Speaker 01:
Do you have a response to that?

[00:30:43] Speaker 01:
That's my concern.

[00:30:47] Speaker 03:
My response to that, Your Honor, is that's inconsistent with this variety of cases that I decided to try to cite to you today.

[00:30:56] Speaker 03:
And they're cited in our briefing, the intellectual ventures cases, the two-way media case, the Berkheimer case, the electrical power case.

[00:31:08] Speaker 03:
All of those cases are similar to this in that

[00:31:12] Speaker 03:
There is, they are simply using a computer to increase efficiency if you want, which has been decided to be not, decided to be an abstract and not an inventive concept because you're not improving the computer or the network itself.

[00:31:29] Speaker 03:
You're simply using those techniques to push data faster through a network.

[00:31:35] Speaker 03:
And those cases hold that that is not enough to survive.

[00:31:40] Speaker 03:
Any better concept for step one or step two of the Alice Mayo test?

[00:31:46] Speaker 01:
Okay council, I think we have your argument.

[00:31:47] Speaker 01:
Ms.

[00:31:48] Speaker 01:
Eddy, you have some rebuttal time.

[00:31:49] Speaker 01:
Mr. Dowler went over by two and a half minutes, so if you need more than the one minute you have remaining, you may use it at your peril.

[00:31:58] Speaker 01:
Please go ahead.

[00:32:01] Speaker 00:
Thank you, Your Honors.

[00:32:05] Speaker 00:
If you have no more questions, I will conclude my argument.

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

[00:32:11] Speaker 00:
This case should be reversed.

[00:32:13] Speaker 01:
Thank you very much, Ms.

[00:32:14] Speaker 01:
Haddie.

[00:32:15] Speaker 01:
That concludes our hearing for today.

[00:32:17] Speaker 01:
This case is taken under submission, and I thank both counsel for their arguments.