[00:00:00] Speaker 01: 23-50. [00:00:00] Speaker 01: Mr. Patnick? [00:00:02] Speaker 01: Yes, Your Honor. [00:00:07] Speaker 01: Can I pronounce that correctly? [00:00:09] Speaker 01: You did, Your Honor. [00:00:11] Speaker 01: Okay, and Ms. [00:00:13] Speaker 01: Pesley? [00:00:16] Speaker 01: And I understand, let's see, you have set, I don't have an indication here how much time, let me see that. [00:00:25] Speaker 04: It was 11 minutes, Your Honor. [00:00:26] Speaker 01: You have 11 minutes for rebuttal. [00:00:30] Speaker 01: So you're saving four minutes for a rebuttal? [00:00:32] Speaker 01: Yes, that's correct. [00:00:34] Speaker 01: Okay, Mr. Putnack, we're ready, here you are. [00:00:38] Speaker 04: Thank you. [00:00:39] Speaker 04: May it please the court, Gotham Putnack with John DeMarris on behalf of IBM. [00:00:44] Speaker 04: To find the 789 patent invalid under 101, the district court violated the protections of Rule 12 jurisprudence, warning, warranting reversal of remand. [00:00:54] Speaker 04: Specifically, the court used extrinsic evidence, sua sponte, for derivative claim construction and resolved the claim construction dispute highlighted in that evidence against IBM instead of drawing all inferences in favor of IBM. [00:01:08] Speaker 04: Although nominally accepting IBM's proposed claim construction for the term synchronizing, the court further construed the construction's use of automatically Suez-Fonte using a Webster's dictionary to find that automatically it could be met with updates made by someone other than the user without exercising independent judgment. [00:01:27] Speaker 04: The court acknowledged that even the dictionary it used provided multiple meanings, but it chose to use the meaning that did not draw all reasonable inferences in favor of IBM. [00:01:36] Speaker 04: as it should have at this rule 12 stage. [00:01:39] Speaker 04: This can be seen at footnote 14 of the order, which is at appendix 30, where the court understands that IBM's proffered construction of synchronize would entail no human involvement, but nonetheless focuses on Webster's use of without thought or conscious intention. [00:01:55] Speaker 02: Mr. Patniak, I'm wondering, you're talking about the 789 patent right now, right? [00:02:00] Speaker 04: Yes, Your Honor. [00:02:01] Speaker 02: One of the concerns I have [00:02:04] Speaker 02: is that these claims, the specification, the expert declaration, they talk about how it's important to update the list and the map, synchronize them, have them update automatically at the same time. [00:02:15] Speaker 02: But the patent specification does not talk about, for example, why this was a difficult thing to do, what the technological solution is in obtaining this, why there's nothing about it. [00:02:26] Speaker 02: This is why it was so difficult before. [00:02:27] Speaker 02: This is what we had to jump through in order to make this happen. [00:02:30] Speaker 02: Instead, it sounds more like a wish list. [00:02:32] Speaker 02: OK, we want them to update at the same time. [00:02:35] Speaker 02: Now we're going to claim updating them at the same time without any explanation of what was the improvement. [00:02:42] Speaker 02: So it sounds, for that reason, like an abstract idea. [00:02:46] Speaker 02: How do you respond to that? [00:02:48] Speaker 04: Respectfully, Your Honor, if you turn to column two of the patent. [00:02:51] Speaker 04: of the 789 patent at line 55. [00:02:56] Speaker 04: Well, the inventors specified that conventional systems, I'm sorry, it's 58. [00:03:02] Speaker 04: Conventional systems do not concurrently update the list display and map display. [00:03:07] Speaker 01: Is that the page number you're giving us? [00:03:08] Speaker 04: I'm sorry, it's appendix 55, Your Honor. [00:03:11] Speaker 02: And it's column two, line, say, 57ish? [00:03:15] Speaker 02: Yeah, to 60. [00:03:17] Speaker 02: But all that says is that conventional systems do not concurrently [00:03:22] Speaker 02: update the display and map display. [00:03:24] Speaker 02: And so now you say, if they don't do that, I want them to do it. [00:03:28] Speaker 02: And there's no explanation of how it does it or the hurdles. [00:03:34] Speaker 02: I mean, updating things at the same time was generally known, right? [00:03:41] Speaker 04: Sure, Your Honor. [00:03:42] Speaker 04: But if you look at column six as well, and I'm looking at appendix 57 at line 40, [00:03:50] Speaker 04: The benefit of the concurrent updating, it shows that it allows the users to view changes made in either display concurrently across both displays, which provides greater interactivity and selection capabilities. [00:04:02] Speaker 01: You're not saying that's the claimed advance? [00:04:04] Speaker 04: It isn't the claim, Your Honor. [00:04:05] Speaker 01: It isn't, or the claim advance? [00:04:07] Speaker 01: What's the claimed advance here? [00:04:11] Speaker 04: I'm sorry, Your Honor. [00:04:11] Speaker 01: What advance are you arguing has been achieved by the patent? [00:04:17] Speaker 04: The focus is twofold. [00:04:20] Speaker 04: It is the user selection of the area coupled with the concurrent updating to modify what synchronize means. [00:04:27] Speaker 04: If you look at the claim, synchronize is described with some particularity and it refers to the [00:04:33] Speaker 04: concurrent updating of both the selections. [00:04:35] Speaker 01: What about claiming synchronization as a method? [00:04:39] Speaker 04: Well, Your Honor, if you look at appendix in the prosecution history, 2240 and 2241, this is the invention disclosure that was provided with this application. [00:04:51] Speaker 04: And if you look at the main idea of disclosure on 2240, [00:04:56] Speaker 04: The inventors acknowledge that quite a bit of art surrounds selecting a polygon on a map, but none of it deselects the area outside. [00:05:04] Speaker 04: This is all trying to get more relevant information presented to the user. [00:05:09] Speaker 04: The desolation was not done before, as shown in the prosecution history. [00:05:13] Speaker 02: I thought there was an admission somewhere that the selecting of an area on a display itself was not the point of the [00:05:23] Speaker 02: claims, or maybe it was conventional. [00:05:25] Speaker 02: Am I wrong about that? [00:05:28] Speaker 04: I think it's this language we're pointing to, Your Honor, right now, where it says quite a bit of art around selecting a polygon on a map. [00:05:34] Speaker 04: It's the same selection. [00:05:37] Speaker 04: But I would argue that Berkheimer counsels that even if it was known in the art, it doesn't mean it's not inventive when it's combined with the rest of the claim. [00:05:45] Speaker 04: And so does Bascom. [00:05:50] Speaker 03: So I'm still a little confused as to what you're saying is non-abstract in these claims. [00:05:56] Speaker 03: Because it still sounds to me like what you're saying is having the user determine parameters to generate data and to display the data in a certain way. [00:06:07] Speaker 03: And I think almost all of our cases that have addressed selecting, characterizing, and displaying data have not found any of those to be directed to [00:06:18] Speaker 03: eligible ideas, we found them abstract. [00:06:21] Speaker 03: So what's non-abstract in synchronizing the data when you display it? [00:06:27] Speaker 04: I would focus on the concurrently updating for the selection and deselection because that is something that's not done in any context other than the computer context, which is what these claims are directed to. [00:06:38] Speaker 04: Because you can't do that simultaneously in the real world. [00:06:41] Speaker 04: And I think the courts, the lower courts use of a map and scissors and paper shows that's more consecutive than concurrent, updating the map and the elements. [00:06:52] Speaker 01: Go ahead. [00:06:54] Speaker 01: What is it you say you can't do that in real life? [00:06:56] Speaker 01: If you ask me, Lincoln, Nebraska, I'll pull out a map of Nebraska. [00:07:04] Speaker 01: then I pull out a map of a particular county, then I pull out a map of the city of Nebraska. [00:07:10] Speaker 01: I've synchronized my search. [00:07:16] Speaker 04: Your Honor, the inventions here are directed to having two displays up simultaneously, the list and the map, and updating both based on changes in either. [00:07:24] Speaker 04: And that can only be done, the synchronized map method claimed here is done in real time. [00:07:30] Speaker 04: That's the use of the word concurrent. [00:07:32] Speaker 04: I think the use of any maps that do it sequentially read out the word concurrent, which would be improper for the claim. [00:07:39] Speaker 04: And I think that's what the court did with its use of a paper map. [00:07:42] Speaker 01: And I think that's what... So you're saying this does it faster? [00:07:46] Speaker 04: No, Your Honor. [00:07:46] Speaker 04: It's not just faster, because this is a problem unique to the computer. [00:07:50] Speaker 04: It's a technique that only is available in the computer context. [00:07:54] Speaker 01: How does that improve computer technology? [00:07:58] Speaker 04: Well, it's improving a GUI, much like data engine and core wireless. [00:08:02] Speaker 02: When you say GUI, you mean a graphical user interface? [00:08:05] Speaker 02: Yes, Your Honor. [00:08:06] Speaker 02: And you think that that's required by your claim because it says presenting a map display on a display device? [00:08:12] Speaker 04: Yes, a display device. [00:08:14] Speaker 04: And the lower court acknowledged or thought that it meant a computer monitor as a display device. [00:08:21] Speaker 04: So that's why we focus on the improvement to the GUI, which in turn improves the interaction between the human and the computer device. [00:08:30] Speaker 02: I direct you to the 389 patent for a little while. [00:08:33] Speaker 02: Sure. [00:08:36] Speaker 02: Some of those claims, let me ask you. [00:08:39] Speaker 02: I'm curious about claims one through six. [00:08:41] Speaker 02: I have some concerns about them as compared to the other claims. [00:08:45] Speaker 02: Claims one through six, I don't see how they're limited to a computer. [00:08:49] Speaker 02: Do you think they're limited to a computer? [00:08:51] Speaker 04: Your Honor, I would direct you to in the abstract of the patent itself on Appendix 62, [00:08:58] Speaker 04: It specifies that the objects at issue in this patent are attributes that are stored in data store, such as a relational database. [00:09:06] Speaker 02: I understand. [00:09:06] Speaker 02: But if you look at the claim itself, it just says it's a method. [00:09:10] Speaker 02: But the other claims, like claim eight, for example, clearly have some computer hardware in there. [00:09:16] Speaker 02: But these claims, like claim one, very broad, a method of displaying layered data, said meth including. [00:09:25] Speaker 02: selecting one or more objects. [00:09:27] Speaker 02: I mean, it sounds like it doesn't have to be done on a computer. [00:09:30] Speaker 02: So I want to know, first of all, did you advocate a claim construction below that limited the claim to a computer? [00:09:38] Speaker 02: And second, I guess I do want to know, you say it's limited to a computer, but I guess really, did you make this argument before? [00:09:47] Speaker 04: I believe we did, Your Honor, in the lower court, that this was a computer context. [00:09:51] Speaker 04: And I think that came in the flow of... Was that as part of claim construction? [00:09:55] Speaker 02: Because I couldn't find it in the record. [00:09:57] Speaker 04: I don't know if it really specified that it was computer context in the claim construction. [00:10:02] Speaker 04: But we did look at claim 13 as it should have been thought of as a representative claim. [00:10:08] Speaker 04: And I think the intent there was to show that there was a computer aspect to these, or computer context to these claims. [00:10:17] Speaker 02: Thinking about Berkheimer and Atrix, which you mentioned earlier, and dismissal on the pleadings, does an expert declaration attached to a complaint, is that something where we have to accept the statements and that expert declaration is true? [00:10:35] Speaker 04: I think Atrix and Self-Spin counsel that they should be considered, the declarations, unless there's countervailing evidence, whether it's an exhibit or a judicial notice. [00:10:45] Speaker 02: Do you think we look at federal circuit law for that answer to that question, or do we look at regional circuit law? [00:10:52] Speaker 04: I think that's a regional circuit law in the sense of what is presumed for a Rule 12 analysis, and I think all inferences are drawn in favor of the non-movement. [00:11:02] Speaker 02: And do you think, I think it's the Ninth Circuit, do you think the Ninth Circuit has held that an expert report attached to a complaint should be considered in all this [00:11:11] Speaker 02: actual statements and there should be accepted as true? [00:11:14] Speaker 04: I think all pleadings should be accepted, but I don't know that the Ninth Circuit has actually ruled that an expert report should be included. [00:11:21] Speaker 01: So to follow up on this, accepted how? [00:11:25] Speaker 01: As evidence or as an inference that's in favor of the movement? [00:11:31] Speaker 04: It's accepted as evidence and all statements taken therein are assumed to be true. [00:11:39] Speaker 03: So what assertion of the expert are you saying that is true that creates a genuine issue of fact here? [00:11:47] Speaker 04: There are multiple, Your Honor. [00:11:49] Speaker 04: The expert's definitely- Give me your best one. [00:11:52] Speaker 04: For which patent? [00:11:54] Speaker 04: I think we're talking about the 389. [00:11:56] Speaker 04: The 389? [00:12:02] Speaker 04: So at appendix 200 to 211, the expert provided background on computer-based information visualization techniques, and he flagged some of the techniques that were known and their shortcomings of them. [00:12:16] Speaker 04: And then at 220, he explained how applying non-spatially distinguishable attributes, which are the subject of the 389, across items and layers are better visually identifying distinguished objects. [00:12:28] Speaker 04: So he talked about the, and then he explained specifically at appendix 221 in paragraphs. [00:12:34] Speaker 03: So he's saying that this way of arranging things with emphasizing and highlighting and things like that is a better way to look at it on a computer. [00:12:44] Speaker 04: I would couple that with claim 2. [00:12:47] Speaker 04: And what I was going to is paragraphs 83 to 87 at appendix 221, where he explained how dependent claim 2, 9, and 13 allow users to dynamically manipulate the visualization of the objects to better support the ability to scrutinize and review the data. [00:13:02] Speaker 04: And that is something that's a unique solution in the computer context. [00:13:07] Speaker 03: So it's not really the first one. [00:13:08] Speaker 03: It's the second one. [00:13:09] Speaker 04: I would focus on the second one. [00:13:11] Speaker 03: The first thing you were telling me all sounded like an abstract idea. [00:13:15] Speaker 03: I think you have to look- Even a new abstract idea over the prior art or whatever is still ineligible, right? [00:13:22] Speaker 03: If it's an abstract idea, it's an abstract idea. [00:13:24] Speaker 03: The expert can say, this is unconventional and novel, however much he wants. [00:13:29] Speaker 03: It doesn't create a genuine issue of fact over eligibility. [00:13:33] Speaker 04: I agree with that, Your Honor, but I would caveat that with you can still get to the inventive concept. [00:13:37] Speaker 04: If you look at the underlying, what was proffered as part of the declaration, the complaint, and the claims themselves in the spec. [00:13:44] Speaker 04: You can still find the inventive concept to get over step one of Alice. [00:13:49] Speaker 03: I don't understand what you just said. [00:13:50] Speaker 03: Are you saying the inventive concept can be an abstract idea? [00:13:55] Speaker 04: I'm saying an inventive concept can take an ineligible, I'm sorry, I was focusing on both steps together. [00:14:01] Speaker 04: So in step one, you're correct, Your Honor. [00:14:04] Speaker 04: You couldn't make it eligible. [00:14:05] Speaker 03: If the patent's directed to an abstract idea, it's ineligible at step one. [00:14:10] Speaker 03: Correct. [00:14:10] Speaker 03: And then you have to show something that's a non-abstract [00:14:14] Speaker 03: improvement or something like that to make it eligible. [00:14:18] Speaker 03: That's right. [00:14:19] Speaker 03: And your view of what's not abstract about this layering technique? [00:14:23] Speaker 04: I would focus on claim two, the ability to re-layer and re-match. [00:14:28] Speaker 03: That's not found in the... So the user can change the criteria for displaying the information. [00:14:33] Speaker 04: I think we're reading the claims in conjunction, Your Honor. [00:14:37] Speaker 04: So the re-laying and re-matching is a material part of the claims. [00:14:41] Speaker 04: So they have to be given their meaning. [00:14:43] Speaker 03: But it's just a different way for the user to manipulate the information. [00:14:46] Speaker 03: Here's what I'm getting at. [00:14:47] Speaker 03: All of these claims, both the 789 and the 389, to me sound like ways to use a computer to manipulate, categorize, and display information in ways that we've found ineligible multiple times. [00:15:02] Speaker 03: And I understand the core wireless case, but it seems there is something more in [00:15:06] Speaker 03: the core wireless case, because it's not just using a routine, conventional computer to do all this stuff, which I think you've said. [00:15:14] Speaker 03: you're using routine conventional computer equipment, it's to specifically fit it onto a small screen so it actually has to have that technological advance for the way things are displayed. [00:15:26] Speaker 03: This is designed to work on any kind of screen whatsoever, right? [00:15:31] Speaker 04: I would respond to that, Your Honor, with the trading tech and data engine both show us that if you have a computer improvement or a technical solution in the computer context, that is patent eligible. [00:15:43] Speaker 04: And concurrent updating is something that's not done in the paper world. [00:15:47] Speaker 04: And for the 389, the rematch can be land. [00:15:50] Speaker 03: Which trading tech case do you think helps you? [00:15:53] Speaker 03: I thought we held the GUIs and all of the trading tech cases ineligible. [00:15:57] Speaker 04: There are two, I would say. [00:15:59] Speaker 04: The one that I'm focusing on is trading tech versus CQG, which preceded the other one. [00:16:05] Speaker 03: Oh, the first one. [00:16:07] Speaker 03: Correct. [00:16:07] Speaker 03: Was that a correct decision? [00:16:10] Speaker 04: That was not a presidential decision, but it was cited in data. [00:16:12] Speaker 03: And after that, didn't we fairly dramatically distinguish that case in a presidential decision? [00:16:20] Speaker 03: Is that your case for trading tech? [00:16:23] Speaker 03: Is there any other trading tech case? [00:16:25] Speaker 04: No, that is my case. [00:16:27] Speaker 04: But I would focus on data engine as well, Your Honor. [00:16:29] Speaker 02: So your view is that this is a graphical user interface, and the technological improvement is [00:16:36] Speaker 02: displaying the data in a particular way that's an improved graphical user interface. [00:16:41] Speaker 02: Do I understand that? [00:16:43] Speaker 04: It's improving the interaction in the computer context of the graphical user interface and it's doing it with computer solutions, technical solutions that are available only on the computer. [00:16:53] Speaker 03: But not in the way Core Wireless found it eligible, which is they found it dedicated to a specific way of doing it on a small screen, right? [00:17:01] Speaker 03: That was a benefit. [00:17:02] Speaker 03: Setting aside that trading case, what's the other case you were trying to talk about? [00:17:05] Speaker 04: Data Engine, Your Honor. [00:17:07] Speaker 03: Is that a prep case? [00:17:08] Speaker 04: Yes, that is. [00:17:09] Speaker 04: And what does it say? [00:17:10] Speaker 04: Data Engine, that show that methods that allow a computer device to conveniently locate information of interest [00:17:22] Speaker 04: and improves the accuracy, they found that eligible under step one. [00:17:26] Speaker 02: Now, you have to look at that specific claim in that case, right? [00:17:30] Speaker 02: Just like you'd have to look at the specific claim in this case, look at all the evidence, the specification, and see whether you think the claims are directed to an abstract idea or a technological solution, right? [00:17:40] Speaker 02: But I think you're relying on data engine generally for the idea that this court in the past has found that a GUI can be a technological improvement. [00:17:52] Speaker 02: to satisfy step one. [00:17:53] Speaker 04: It also sheds light on the fact of what is looked at and what is found material for that analysis. [00:17:59] Speaker 04: And in Data Engine, it was held that the real world analogy that the court used wasn't appropriate, and we feel we're in the same place here. [00:18:06] Speaker 04: The paper map doesn't capture the scope of the claim. [00:18:10] Speaker 04: There's nothing in the record that shows that the claim, as properly understood, actually was done before. [00:18:16] Speaker 02: And you think that this is a stronger argument for claim two, because not only is it [00:18:22] Speaker 02: categorizing the data and displaying the layers with different ways so you can differentiate it among the data, but also it's allowing you to change the way you've categorized the data. [00:18:35] Speaker 04: That's correct. [00:18:36] Speaker 04: And it's done in a dynamic way. [00:18:38] Speaker 01: Counselor, you're out of time. [00:18:40] Speaker 01: In fact, you ate up most of your rebuttal time, but I'll re-show you three minutes of rebuttal time. [00:18:45] Speaker 01: Thank you, Your Honor. [00:18:47] Speaker 01: Let's hear from the other side. [00:18:49] Speaker 00: Good morning, Your Honors, and may it please the Court, Katherine Peasley, Sussman Godfrey on behalf of Zillow Group, Inc. [00:18:55] Speaker 00: and Zillow, Inc. [00:18:58] Speaker 00: Your Honors are exactly right that all of the 789 patent claims is concurrently updating a map and a list display. [00:19:10] Speaker 00: It is exactly correct that the patent says nothing about how that updating occurs. [00:19:15] Speaker 00: It simply says that it does occur in response to a user input. [00:19:20] Speaker 00: The benefits that are claimed of updating a map and a list at the same time are nothing more than the benefit of updating a map and a list at the same time implemented on a computer. [00:19:31] Speaker 00: There's nothing specific to the computing environment about the benefits that have been claimed either within the patent itself or by the expert. [00:19:41] Speaker 00: And I believe you just heard counsel for IBM himself say that the benefit here is presenting more relevant information to the user. [00:19:48] Speaker 00: That's the exact same benefit that the user of the map depicted in our brief would get from having a selected area of interest and a coordinated map. [00:19:59] Speaker 00: IBM has made a lot of this idea that concurrent updating of a map and a list could only possibly be done on a computer, and that that itself is inventive. [00:20:10] Speaker 00: I think you're exactly right. [00:20:12] Speaker 00: There's nothing about concurrently updating two displays that is specific to a computer. [00:20:18] Speaker 00: If I am a map maker, I and my assistant could concurrently update a map and a corresponding list in response to a request from someone who needs a new map. [00:20:30] Speaker 00: But if you want to make this even more explicit and match the claims even more specifically, imagine I'm a fourth grade teacher and I have a dry erase board map of Washington D.C. [00:20:41] Speaker 00: and it's magnetic. [00:20:44] Speaker 00: The way that all of the monuments appear on the map, that's their deselected state. [00:20:48] Speaker 00: I also have a bunch of little red flag magnets and I have a bunch of magnets with facts on them, one fact for each monument. [00:20:56] Speaker 00: With the facts along the side, that's my list display. [00:20:59] Speaker 00: put little red flags on all the monuments, they're selected. [00:21:02] Speaker 00: My fourth graders can only focus on so much information at one time, though. [00:21:06] Speaker 00: So I have a student come up. [00:21:07] Speaker 00: He draws or she draws a shape, any shape they wish, selecting an area of the map. [00:21:13] Speaker 00: I use my left hand to remove flags from outside that area. [00:21:16] Speaker 00: And simultaneously, I use my right hand to remove the corresponding fact from the list display. [00:21:22] Speaker 00: And one by one, I simultaneously update the map and the list so that all we're left with are selected monuments inside that area and their corresponding facts. [00:21:30] Speaker 00: So now we can focus on that selected area of interest. [00:21:34] Speaker 00: I erase that. [00:21:35] Speaker 00: New student draws a new section. [00:21:36] Speaker 00: I do it again. [00:21:37] Speaker 00: I update, putting flags back with my left hand, facts back with my right. [00:21:42] Speaker 00: There is nothing about the idea of concurrently updating two things. [00:21:46] Speaker 00: that cannot be performed by a human being. [00:21:50] Speaker 01: Can a pen that's directed to providing an accurate display on a GUI ever be not abstract? [00:22:01] Speaker 00: If all you are talking about is providing an accurate display, [00:22:06] Speaker 00: That, in and of itself, I don't think would be patentable. [00:22:09] Speaker 02: What if the specification said something like, it is technically impossible at this time to update the list at the same time as the map. [00:22:18] Speaker 02: So we came up with this blah, blah, blah technique that allows you to overcome that technological hurdle of updating simultaneously. [00:22:26] Speaker 02: I'm not saying the specification does that. [00:22:28] Speaker 02: But if it did, would that present a different case to you? [00:22:31] Speaker 00: Sure, Your Honor. [00:22:32] Speaker 00: And that depends on what the claims say. [00:22:34] Speaker 00: If the claims taught you how to overcome that hurdle, then yes. [00:22:39] Speaker 00: But if the claims don't tell you how to overcome that technological hurdle, all they say is, we did it. [00:22:45] Speaker 00: No, I don't think you have a patentable method. [00:22:48] Speaker 00: Actually, opposing counsel talked quite a bit about data engine and the idea that in that case, that shows [00:22:57] Speaker 00: that a GUI that allows for better navigating through information is patentable. [00:23:02] Speaker 00: And I think that case actually shows exactly why the patent claims here fail. [00:23:08] Speaker 00: In Data Engine... Which, are you talking about the 389 patent? [00:23:12] Speaker 00: I'm sorry, I'm talking about the 789 patent, Your Honor. [00:23:15] Speaker 02: Personally, I think we have your argument on the 789, but what about the 389? [00:23:20] Speaker 00: Sure. [00:23:22] Speaker 00: With regard to the 389, it is the exact same situation. [00:23:26] Speaker 00: You have a long practiced mapping technique, which is putting information that corresponds to a certain type of object, for instance, rivers in one layer and roads in one layer, making them visually distinguishable from another by, say, assigning them. [00:23:42] Speaker 02: What evidence do you have that all of that's conventional? [00:23:45] Speaker 02: I mean, particularly given the dismissal stage that we're at right now, [00:23:49] Speaker 02: and the complaint we have and the declaration of Mr. Cockburn that we have attached to the complaint. [00:23:55] Speaker 02: That we have to accept the facts asserted in there is true. [00:23:59] Speaker 00: Sure. [00:23:59] Speaker 00: You have to accept the facts with regard to the prior art and how that exists. [00:24:06] Speaker 00: We'll not argue with IBM, although I think IBM's counsel is correct that the Ninth Circuit has not expressly held that you have to incorporate an expert's declaration. [00:24:14] Speaker 00: But let's say that you do. [00:24:15] Speaker 00: All that the expert has stated [00:24:18] Speaker 00: is that prior computer systems didn't do this. [00:24:21] Speaker 00: But that doesn't mean that the technique's not known. [00:24:23] Speaker 00: And a subway map that we included in our brief shows exactly this. [00:24:28] Speaker 00: It shows subway lines distinguished by a visual characteristic, which is their bright color and their thickness, distinguished from a road layer, which is shown by gray in another layer. [00:24:41] Speaker 02: What about claim two? [00:24:42] Speaker 02: That was what I heard Mr. Pitnayak to be [00:24:48] Speaker 02: emphasizing, and that's the one where there's, you know, choosing by the user to change the way that the objects are going to be layered. [00:24:56] Speaker 00: Absolutely, Your Honor. [00:24:58] Speaker 00: Two responses there. [00:24:59] Speaker 00: The first is that the simple answer is redrawing the map. [00:25:04] Speaker 00: Certainly it is much faster to rematch layers and rearrange layers if you have a computer, but this court has held repeatedly that simply claiming the speed and efficiency of applying something on a computer [00:25:17] Speaker 00: is not itself inventive. [00:25:19] Speaker 02: But what about, let me just try this. [00:25:21] Speaker 02: When I read that declaration, I get the sense that what they're saying is that in prior computer displays, it was difficult sometimes to see a bunch of data and distinguish the data. [00:25:37] Speaker 02: And so this is providing a technique where a user can identify certain data for the first layer, certain data for the second layer, certain data for the third and so on. [00:25:46] Speaker 02: and then identify which layers are going to be displayed in which way, which one's going to be emphasized, how they're going to be emphasized. [00:25:53] Speaker 02: And then separately, you can change which objects fall into which layer. [00:25:58] Speaker 02: That's claim two and the other claims that depend, I guess, from eight and 13. [00:26:06] Speaker 02: So why is that not a technological solution to a technological problem? [00:26:11] Speaker 02: That being it's on a computer, we're not talking about [00:26:14] Speaker 02: I'm going to be back in the 1950s and I'm writing and making a map, and then I want to decide I want to make a new map. [00:26:22] Speaker 02: So what about computers? [00:26:24] Speaker 00: Well, Your Honor, that scenario that you've given me is exactly the same problem that you would have with any complex data set. [00:26:34] Speaker 00: on a piece of paper, and actually looking at the illustrations in the expert's declaration illustrates exactly this. [00:26:40] Speaker 00: There's all this data, and what the expert is saying is that previously a computer screen didn't distinguish between things based on visual characteristics, so like color or shape. [00:26:50] Speaker 00: Instead, it just put everything spatially relative to one another. [00:26:55] Speaker 00: That would be the exact same thing as putting everything just spatially relative to one another on a [00:27:00] Speaker 00: on a piece of paper. [00:27:02] Speaker 00: I think core wireless is a helpful case for distinguishing this because [00:27:06] Speaker 00: In core wireless, the improvement to a small screen was specific to computers. [00:27:12] Speaker 00: Small screens, the court there explained, are more likely to have multiple layers of data that you have to drill down through to get to a computer function. [00:27:19] Speaker 00: And that's an issue that's specific to small screen computers. [00:27:22] Speaker 00: Here, the problem you're talking about with having a lot of information in a small space is simply the problem of having a lot of information in a small space. [00:27:31] Speaker 01: And that applies to things beyond simply... Handling a lot of information in a small space is one of the technological benefits of a computer. [00:27:44] Speaker 01: So isn't the improving of viewing that data, as expressed here, a technological solution to a technological problem? [00:27:56] Speaker 01: This is all we do on computers is we're viewing data. [00:28:01] Speaker 01: Wouldn't it be the case of something that comes and improves my viewing the data, even uncluttering the clutter caused by a lot of information that I bring up? [00:28:13] Speaker 00: Isn't that a technological [00:28:43] Speaker 00: is by putting things in layers that are visually distinct from one another. [00:28:48] Speaker 00: We don't just put everything on a map in the same color, in the same shape, in one layer, because that would be impossible for us to read. [00:28:56] Speaker 00: The idea of putting distinct sorts of objects in different layers so that a viewer can parse the information is certainly helpful in a computing context, but it's not unique to it. [00:29:06] Speaker 02: Do you really think conventionally people think of objects that way? [00:29:11] Speaker 02: But anyway, let me ask you a different question. [00:29:13] Speaker 02: Claim two, let me ask you about that. [00:29:16] Speaker 02: What is your evidence that shows that this claim was performed in real life? [00:29:22] Speaker 02: I mean, I'm having a hard time with your analogy there to real life outside of the computer where you're talking about receiving a request from a user to rearrange the layers, rearranging the layers, rematching one or more objects to a different layer, displaying one or more rematched objects. [00:29:37] Speaker 02: What is your evidence of that, especially considering we're at the dismissal stage? [00:29:42] Speaker 02: Sure, absolutely. [00:29:44] Speaker 00: First thing I'd say is that I would argue that's exactly the process that someone goes through when they redraw a map to re-emphasize a new feature. [00:29:52] Speaker 02: I understand your attorney argument. [00:29:53] Speaker 02: I'm asking what evidence you have. [00:29:56] Speaker 00: Well, the nature of maps, but I take your point. [00:30:00] Speaker 00: Another example, if you look at Exhibits 17 and 18 to our reply to submarine judgment, and I can give you the appendix sites to those if you'd like, the military has actually used acetate overlays over maps of battlefields to do precisely this sort of thing. [00:30:17] Speaker 00: Each acetate overlay [00:30:19] Speaker 00: has different information, whether that's a potential battle formation or natural features or whatever it might be. [00:30:27] Speaker 00: They have those acetate overlays that they can edit. [00:30:31] Speaker 00: They can move things from one layer to another. [00:30:33] Speaker 00: If they want to combine strategies, they can rearrange them. [00:30:36] Speaker 00: We cited to military manuals that [00:30:39] Speaker 00: discuss exactly this, and like I said, I can give you the appendix site if you would like it. [00:30:45] Speaker 00: But that's exactly what this patent is claiming. [00:30:47] Speaker 01: Those are advancements in new terrain maps, let's say. [00:30:52] Speaker 01: Right? [00:30:53] Speaker 01: I mean, you're describing a military use of an advancement in the use of computers. [00:31:00] Speaker 00: Well, no, these are... I'm not talking about computers. [00:31:02] Speaker 00: I'm talking about... What about the display? [00:31:06] Speaker 00: I'm sorry. [00:31:06] Speaker 00: I don't think I understand your question, Your Honor. [00:31:09] Speaker 01: When you're bringing up the military and the use of the different types of the overlaying of maps, like geography and then buildings and streets, and that's the overlaying of the maps, correct? [00:31:25] Speaker 01: And the military use that because that's an advancement in how to view massive information on a small device. [00:31:35] Speaker 00: Or a small piece of paper in the instance I'm referring to. [00:31:39] Speaker 01: Really? [00:31:39] Speaker 01: I mean, you don't think that the former is an advance over the latter? [00:31:48] Speaker 00: Just to be clear, the military example I'm using is a paper example. [00:31:52] Speaker 00: It's not a computer example. [00:31:55] Speaker 00: But if I understand your question, you're asking if whether taking that method of taking clear overlays and stacking them on top of a paper map applied to a computer [00:32:07] Speaker 00: is an advancement over prior computing? [00:32:09] Speaker 00: And if I'm correctly understanding your question, the answer might be sure, but that confuses, again, novelty with inventiveness. [00:32:19] Speaker 00: There was a time when computers had never displayed a map before. [00:32:23] Speaker 00: But that doesn't mean that the first time a computer displayed a map, that was inventive. [00:32:27] Speaker 00: And in fact, if you put a computer on a map, you can potentially get a much, much higher resolution map than you could if you just drew it. [00:32:35] Speaker 00: But again, [00:32:35] Speaker 03: Using computers as a tool to make information better displayed or more specific generally have not been found to be patent eligible. [00:32:45] Speaker 00: That is correct, Your Honor. [00:32:46] Speaker 03: Because it's just using computer as a tool to display information. [00:32:50] Speaker 03: And so in your example, the first person to say, I'm going to use a computer to display a map, if that's all they say, that's an abstract idea. [00:33:00] Speaker 00: Exactly, Your Honor. [00:33:01] Speaker 03: What they need to do to make it patent eligible is explain that [00:33:06] Speaker 03: I'm the first one to actually figure out how to use a computer to do this and the underlying details, not just the idea. [00:33:14] Speaker 03: And I take it your view is that they don't have anything here beyond the idea of displaying things in levels and being able to reorder those levels. [00:33:26] Speaker 00: Absolutely. [00:33:26] Speaker 00: That's exactly right, Your Honor. [00:33:28] Speaker 03: Even though the expert has said, [00:33:31] Speaker 03: Nobody's ever reordered levels in this way. [00:33:34] Speaker 03: On a computer, that's still an abstract idea that doesn't make it patent eligible. [00:33:39] Speaker 00: That's exactly right, Your Honor. [00:33:42] Speaker 03: How do we know? [00:33:43] Speaker 03: See, I'm just slightly concerned about the Rule 12 stuff, because how do we know that the expert hasn't suggested that they've solved the actual computing problem of how you changed the display? [00:34:00] Speaker 03: I mean, honestly, to me it sounds like even they would admit they're just using conventional computer techniques, a conventional computer, conventional coding, whatever, to select and deselect. [00:34:13] Speaker 03: I mean, that stuff doesn't seem particularly new. [00:34:15] Speaker 03: They're not saying they've invented a new way to select and deselect. [00:34:19] Speaker 03: But is that appropriate for us to decide at a Rule 12 stage? [00:34:23] Speaker 00: Absolutely, Your Honor, because you can accept what the expert has said about prior art systems not being able to do this as true and still find there's no inventive concept for the exact same reason we just discussed, which is there's nothing in the patent and there's nothing in the expert's declaration that explains how this result was achieved. [00:34:43] Speaker 01: You're out of time. [00:34:43] Speaker 01: Do you want to conclude? [00:34:46] Speaker 00: Unless the panel has further questions, I will be done. [00:34:51] Speaker 00: Thank you, Your Honor. [00:34:53] Speaker 01: Thank you. [00:34:54] Speaker 01: Mr. Pendick, you have three minutes. [00:35:02] Speaker 04: Thank you, Your Honor. [00:35:03] Speaker 04: I will direct the court first to figures one and figure two. [00:35:06] Speaker 02: It's up to you, but you want to take your mask off. [00:35:08] Speaker 04: Thank you. [00:35:10] Speaker 04: Figures one and figure two of the 389 patent, please. [00:35:13] Speaker 04: That's appendix 64 and 65. [00:35:20] Speaker 04: And I just wanted to show somewhat of the meat of claim two, because this shows in diagram, the benefits of the relayering and rematching that are available in this patent. [00:35:34] Speaker 04: And we proffer that this is not available in the non-computer context, the dynamic nature of changing the layers to also maintain the relationships among them. [00:35:44] Speaker 04: The transparency analogy that the court used to find this abstract [00:35:49] Speaker 04: ignores that just moving the layers of the transparencies up and down you would lose the relationships among them because the lines wouldn't necessarily match up when you change things because this is available only in the computer context because it's using the software to do this in a dynamic nature [00:36:06] Speaker 04: And that, we would proffer, has not been, as you pointed out, there's nothing in the record evidence that shows that was available before. [00:36:12] Speaker 04: And I think that was criticized in CardioNet. [00:36:16] Speaker 03: I'm still confused as to why, even if this wasn't in the prior art, it's still not just an abstract idea of displaying things in different ways and different relationships and emphasizing those relationships, rather than [00:36:30] Speaker 03: something the computer couldn't do before that you've invented. [00:36:34] Speaker 03: You're just using the computer to do a display in a different way that hadn't been before. [00:36:39] Speaker 03: Do you understand the difference there? [00:36:40] Speaker 04: I think I do, Your Honor. [00:36:41] Speaker 04: I think you're looking for an improvement to the computer itself. [00:36:44] Speaker 04: And what we're saying, this case falls more in line with an improvement to the system overall based on the improved GUI, the graphical user interface. [00:36:52] Speaker 03: Well, that's where I'm having problems, because apart from core wireless, which is still directed to a specific [00:36:59] Speaker 03: physical location and function of the computer, I don't see where we've held improved GUIs to be patent eligible generally. [00:37:08] Speaker 04: I would point you again to data engine, your honor. [00:37:11] Speaker 04: I think that's a GUI case and I think core wireless supplies as well because that is a GUI case. [00:37:15] Speaker 03: Well, yeah, but let's just assume I don't think core wireless helps you here because it's solving a specific problem that small screens are harder to navigate and you have to display information. [00:37:26] Speaker 03: You're not solving any of those problems. [00:37:28] Speaker 03: This is not limited to a particular kind of screen. [00:37:31] Speaker 03: You can use this on a laptop. [00:37:32] Speaker 03: You can use it on a phone. [00:37:34] Speaker 03: You can use it on a tablet, right? [00:37:36] Speaker 03: Correct. [00:37:37] Speaker 03: So what you purport to be solving is a better way of displaying data. [00:37:43] Speaker 04: It's an interaction that wasn't available before, Your Honor. [00:37:45] Speaker 03: That's true for all these GUIs. [00:37:47] Speaker 03: The trading technology GUIs that we found ineligible, apart from that non-precedential case, which I don't think we can rely on, [00:37:57] Speaker 03: is different ways, in fact, very novel and inventive ways of showing data to help in the stock market. [00:38:04] Speaker 03: And I think it's recognized that they're inventive, but just because they're inventive abstract ideas doesn't mean that they're still not abstract. [00:38:11] Speaker 04: I think under Rule 12 context, Your Honor, you would have to look at the totality of the record, which includes the declaration and the complaint, which shows that it wasn't done before and what the benefits are now. [00:38:23] Speaker 01: Your opponent on the other side argues that the claims here [00:38:27] Speaker 01: talk about, don't show you how to get to the result. [00:38:33] Speaker 01: What's your reply to that? [00:38:35] Speaker 04: There was a lot in the briefing about how it's all functional language, Your Honor. [00:38:38] Speaker 04: I'll turn your attention to claim 8 of the 789, for instance. [00:38:44] Speaker 03: Could you talk, do you have something on the other one? [00:38:46] Speaker 03: That's the one we seem to be focused on. [00:38:49] Speaker 03: OK, so going to the 38. [00:38:51] Speaker 03: I mean, because that's the one you seem to think you have a novel idea about, about this dynamic reordering. [00:38:57] Speaker 03: Where in the patent or the specification does it tell you how to do the dynamic reordering in a way that's not just using a computer processor and computer software code in a conventional way? [00:39:11] Speaker 04: If you look at column 2 of the 389 patent at appendix 70, at line 50 and going to column 3, line 13, [00:39:25] Speaker 04: It specifies how the relayering and rematching can be done, and some of the benefits that accompany what's claimed in the pad. [00:39:39] Speaker 01: This is your best response to that argument? [00:39:43] Speaker 04: Yes, Your Honor. [00:39:45] Speaker 01: OK. [00:39:45] Speaker 01: Is there anything else? [00:39:47] Speaker 01: No, Your Honor. [00:39:49] Speaker 01: My colleagues haven't? [00:39:50] Speaker 01: OK, we thank you, Council, for your arguments this evening. [00:39:52] Speaker 01: Thank you.