[00:00:00] Speaker 03:
So we will hear argument next in number 212113 in Bray Killian.

[00:00:09] Speaker 03:
Mr. Mathis.

[00:00:12] Speaker 01:
Yes, Your Honor.

[00:00:13] Speaker 01:
It's pleased to report my name is Berman York Mathis.

[00:00:15] Speaker 01:
I am representing Pellet Killian.

[00:00:19] Speaker 01:
My argument starts by saying that this is an issue that has already been settled by the Supreme Court in Bielski, particularly in Bielski,

[00:00:28] Speaker 01:
Patent Office rejected the claims of Bilski under mental steps.

[00:00:34] Speaker 01:
It was overturned by the initial panel at the Federal Circuit, then reaffirmed by Infant, where after when it went to the Supreme Court, the Supreme Court rejected the mental steps and pursued an evidence-based approach.

[00:00:48] Speaker 02:
Mr. Mathis, I thought Bilski was about the machine or transformation test.

[00:00:53] Speaker 01:
There was one issue about that, but it was more than just that.

[00:00:56] Speaker 01:
It's a long opinion.

[00:00:59] Speaker 01:
But the heart of Bilski is twofold.

[00:01:04] Speaker 01:
One, it rejected the mental steps approach of the patent office.

[00:01:09] Speaker 01:
Two, it went after an evidence-based approach to be considered what is well-known, routine, and conventional.

[00:01:16] Speaker 01:
And in this case, there's no evidence that shows that the president claims, forget the computer, that the underlying business method, which is an interaction between various parties, that is, in this case,

[00:01:29] Speaker 01:
facilitated using a computer system, but the underlying business method is not well-known, routine, conventional.

[00:01:35] Speaker 01:
And indeed, there's a mountain of evidence that of Pelletillians submitted to the Patent Office, including 55 separate documents.

[00:01:44] Speaker 01:
And in this case, the Patent Trial and Appeal Board has basically did a runaround by switching the basis from well-known, routine, and conventional to mental steps.

[00:01:59] Speaker 01:
And I put forth to you that the Supreme Court case law is still controlling.

[00:02:07] Speaker 01:
The second argument you see is one that goes right to the heart of the Fifth Amendment due process of law.

[00:02:14] Speaker 02:
Mr. Mathis, what do we do about Gottschalk versus Benson, which called out, among other things, mental processes as being ineligible subject matter, and then

[00:02:26] Speaker 02:
The Mayo decision from a decade ago quoted that very statement of law from Benson.

[00:02:33] Speaker 01:
OK.

[00:02:33] Speaker 01:
Well, there's two parts to Benson.

[00:02:36] Speaker 01:
There's claim eight and claim 13.

[00:02:38] Speaker 01:
Claim eight involved a re-entrant shift register, a piece of computer hardware.

[00:02:45] Speaker 02:
I'm just talking about the quote that says there's a number of things that are not patent eligible.

[00:02:53] Speaker 02:
Phenomenon, later, and then mental processes, abstract intellectual concepts, et cetera.

[00:03:00] Speaker 01:
Well, and here's the problem with this whole mental processes approach.

[00:03:05] Speaker 01:
Well, first of all, Mayo did not rely upon Benson.

[00:03:08] Speaker 01:
It raised some language that it certainly didn't rely upon.

[00:03:14] Speaker 01:
What Bill Skeen, which does rely on hardware, they certainly could have said, hey, this is all mental steps.

[00:03:22] Speaker 01:
They rejected that approach.

[00:03:25] Speaker 02:
What do we do about our own panel decisions that have multiple times found different kinds of claims to be ineligible because they're directed to mental processes?

[00:03:37] Speaker 02:
I mean, this panel this morning, we're bound by those decisions.

[00:03:42] Speaker 01:
You're more bound by Supreme Court than your own decisions.

[00:03:45] Speaker 01:
I would put court that first.

[00:03:47] Speaker 01:
And in this case, Bilski controls.

[00:03:49] Speaker 01:
So does Alice Court.

[00:03:50] Speaker 01:
Both of those rejected mental steps.

[00:03:53] Speaker 01:
And when it comes down to your own, I mean, there's a lot of opinions that I might agree with if you had relied on mental steps.

[00:04:02] Speaker 01:
For example, I will bring up electric power group.

[00:04:08] Speaker 01:
There was no computer in there.

[00:04:09] Speaker 01:
I disagree with the reasoning.

[00:04:10] Speaker 01:
But I think the output, if you'd actually had argued mental steps, might have been violent.

[00:04:16] Speaker 02:
Could you tell us where in Alice did the Supreme Court reject anything about, reject the idea that mental processes should not be?

[00:04:28] Speaker 01:
It was the basis, yes your honor, it was, they didn't say it expressly, but it was the basis of the Federal Circuit decision in Bonk, and basically Alice repeated Bilski, and Bilski was an out and out rejection of mental steps.

[00:04:46] Speaker 02:
Where in Bilski did the Bilski Supreme Court decision do that?

[00:04:52] Speaker 01:
It doesn't say it expressly.

[00:04:53] Speaker 01:
But again, you look at the basis of Bilski.

[00:04:57] Speaker 01:
Bilski says, again, the Federal Circuit in Bonn relied upon mental steps.

[00:05:04] Speaker 01:
Now, the Supreme Court could have just said, yeah, that's perfectly fine.

[00:05:08] Speaker 01:
That's not what they did.

[00:05:10] Speaker 01:
As a matter of fact, they came out with a new approach to abstract

[00:05:15] Speaker 01:
which I think is, which is not just I think is unworkable, is totally unworkable.

[00:05:21] Speaker 01:
No one's been able to find this idea called inventive concept.

[00:05:26] Speaker 01:
Significantly more is a term without meaning.

[00:05:30] Speaker 01:
As a matter of fact, I'm looking even for, I haven't been able to find a single piece of case law, either Supreme Court going all the way back to, let's say just past Hotchkissie Greenwood,

[00:05:45] Speaker 01:
Pontius E. Greenwood talked about invention, but invention there is discussed in terms of non-obviousness.

[00:05:51] Speaker 01:
Since then, it broke out to be a separate meaning.

[00:05:53] Speaker 01:
1952, the Congress enacted the 52 Patent Act to do away with this term of invention.

[00:06:02] Speaker 01:
The Supreme Court in 1966, Ramby John Deere, affirmed that the idea of invention was a meaningless and unhelpful test.

[00:06:15] Speaker 01:
It also

[00:06:15] Speaker 01:
Uh, confirm that, uh, Congress wrote out invention in the patent on 52 and even more interesting.

[00:06:22] Speaker 01:
It talked about that Congress.

[00:06:25] Speaker 02:
Mr. Mathis discussion about the word invention and how it came up and how it came to be in old case law.

[00:06:36] Speaker 02:
What does that have to do with the Alice Mayo framework that we're now all living under?

[00:06:43] Speaker 01:
OK, because there's no difference between invention and inventive concept.

[00:06:47] Speaker 01:
Inventive concept, you know, invention was, Supreme Court rejected invention in 1966.

[00:06:52] Speaker 02:
What I'm trying to figure out is whether the argument you're raising now is really an argument you need to be making to the Supreme Court rather than to this panel this morning.

[00:07:03] Speaker 01:
Well, Your Honor, we have to start here.

[00:07:05] Speaker 02:
What are we supposed to do about the fact that we are living in a world right now where

[00:07:09] Speaker 02:
we have this two-part framework where we do have to look for an inventive concept.

[00:07:15] Speaker 01:
Well, Your Honor, you're looking for Harvey the Rabbit, something that doesn't exist.

[00:07:19] Speaker 01:
There's no such thing as inventive concept, nothing.

[00:07:23] Speaker 01:
No court decision has ever defined it.

[00:07:28] Speaker 01:
Nobody at the Patent Office knows what it means.

[00:07:31] Speaker ?:
It's just a, as a matter of fact, Judge Giles Rich, who wrote the 52 Patent Act along with Pat Federico,

[00:07:37] Speaker 01:
called this whole idea of invention a capricious judicial veto of patent.

[00:07:42] Speaker 01:
And again, Justice Stevens reinvented invention, an inventive concept in fluke.

[00:07:52] Speaker 01:
He decides, oh my gosh, there has to be some sort of inventive aspect in 101.

[00:07:59] Speaker 01:
He doesn't cite any reason for it.

[00:08:01] Speaker 01:
He just pulls it out of nowhere.

[00:08:03] Speaker 01:
Says, oh gosh, you have to have some sort of inventive concept in 101.

[00:08:07] Speaker 01:
There is no basis in statute of constitution that allows for this, none.

[00:08:15] Speaker 01:
And if you give me one moment, Your Honor, there's a 1997 case, Washington v. Glucksburg, that talks about when the courts are allowed to do that.

[00:08:27] Speaker 03:
I'm sorry, you said Washington against Glucksburg?

[00:08:30] Speaker 01:
Glucksburg, yes, Your Honor.

[00:08:31] Speaker 03:
Oh, OK.

[00:08:32] Speaker 01:
1997.

[00:08:33] Speaker 03:
Yeah, no, I don't think I've ever heard that.

[00:08:37] Speaker 03:
referred to in a patent case would go on.

[00:08:40] Speaker 01:
Well, it talks about, in general, when courts are allowed to sit there and rewrite statutes or create exceptions and so forth.

[00:08:49] Speaker 01:
And the standard that the Supreme Court came out with this is summarized, and I will let me quote.

[00:08:55] Speaker 01:
First, we have regularly observed that due process laws specifically protect those fundamental rights and liberties which are, objectively, quote, deeply rooted in this nation's history and tradition.

[00:09:08] Speaker 01:
And in this case, there's nothing in the 14th Amendment or the 5th Amendment or any part of the Constitution that expressly allows for the courts to rewrite the patent statutes.

[00:09:21] Speaker 01:
And if there's anything that's deeply rooted in this nation's history and tradition, it's never been explained to anyone.

[00:09:30] Speaker 01:
However, Your Honor, I want to present an opportunity for this court.

[00:09:37] Speaker 01:
And I understand that, you know, we live, as you said, and properly said, we live in this two-part test where we look for the inventive concept.

[00:09:46] Speaker 01:
And in this case, because there's no such thing as an inventive concept, I would say here's a unique opportunity that with this case, as to why you should overturn this case, not just based on Bilsky, but based on Fifth Amendment due process.

[00:10:01] Speaker 01:
Specifically, by stating that there's

[00:10:05] Speaker 01:
No such thing as inventive concept.

[00:10:07] Speaker 01:
It's capricious, arbitrary, it has no meaning.

[00:10:10] Speaker 01:
It therefore violates a constitutional due process.

[00:10:15] Speaker 01:
You know, make this determination.

[00:10:17] Speaker 01:
Show it in opinion.

[00:10:18] Speaker 01:
The Supreme Court will take this case.

[00:10:21] Speaker 01:
The Supreme Court will therefore be forced to either define the term or admit that it has no meaning.

[00:10:28] Speaker 01:
So what I'm offering you, and you're right, this is a two-part test.

[00:10:31] Speaker 01:
We are living in, I think, an insane and unworkable

[00:10:35] Speaker 01:
jurisprudence.

[00:10:37] Speaker 01:
And I think it's ill thought out.

[00:10:39] Speaker 01:
It's ill based in anything in the constitutional.

[00:10:43] Speaker 01:
But here you have an opportunity to ask the Supreme Court to clarify.

[00:10:50] Speaker 01:
And again, if you base this on constitutional due process, I'm pretty sure the Supreme Court will take

[00:10:57] Speaker 03:
You're into the rebuttal time that you reserved, if you want to stop here.

[00:11:04] Speaker 01:
I'm done here, Your Honor.

[00:11:05] Speaker 01:
OK.

[00:11:05] Speaker 03:
We'll hear from Ms.

[00:11:06] Speaker 03:
Lateef now and get back to you in a bit.

[00:11:13] Speaker 00:
Thank you.

[00:11:14] Speaker 00:
May it please the court?

[00:11:15] Speaker 00:
Supreme Court and Federal Circuit precedent are binding on the board.

[00:11:19] Speaker 00:
And as a result, the board properly looks at the Alice-based 101 inquiry to determine that Gillian's claims

[00:11:27] Speaker 00:
are patent and eligible.

[00:11:30] Speaker 00:
Under step one, the court, I'm sorry, under step one, the board did what Alice did, what Mayo did, and what this court has done since Alice.

[00:11:38] Speaker 00:
And it looked at representative claim one as a whole and determined that it was directed to an abstract idea, namely mental processes, and in particular, a search algorithm that identifies people who are eligible to receive social security disability insurance benefits and who are not receiving them.

[00:11:56] Speaker 00:
This idea that somehow mental processes is no longer a proper basis is false.

[00:12:03] Speaker 00:
That comes from Mayo.

[00:12:04] Speaker 00:
That comes from Benton, who is mentioned in Flute.

[00:12:07] Speaker 00:
It also comes from this court's own precedent.

[00:12:10] Speaker 00:
There is CyberSource, a fair warning case, Smart Gene.

[00:12:14] Speaker 00:
This was a proper analysis by the board following the precedent that is binding upon it.

[00:12:21] Speaker 00:
Federal Circuit president, Supreme Court president.

[00:12:23] Speaker 03:
Can you address, I think Mr. Mathis relied rather heavily on Bilski.

[00:12:31] Speaker 03:
Can you talk about that?

[00:12:33] Speaker 00:
Well, I don't really understand.

[00:12:35] Speaker 00:
To be honest, Your Honor, I don't understand why he suggests that Bilski somehow overturns mental process.

[00:12:43] Speaker 00:
I don't see that anymore.

[00:12:44] Speaker 00:
I don't know where that is.

[00:12:46] Speaker 00:
I thought that was the machine test.

[00:12:48] Speaker 00:
I'm not sure what his point is to address other than to say that mental processes is in fact rooted in Supreme Court case law.

[00:12:57] Speaker 00:
You have Benson, you have Mayo, you have Fluke, and you have this court who has identified mental processes as being a part of an abstract idea in cyber source and some of the other cases that I mentioned.

[00:13:11] Speaker 00:
In addition, what the board did under the second test was

[00:13:16] Speaker 00:
it looked at the added elements in representative claim one and found that they merely recite generic computer components.

[00:13:24] Speaker 00:
So as a result, in considering the two steps of Alice, found that Killian's claims are not patent-eligible under section 101.

[00:13:34] Speaker 00:
This idea that somehow we're supposed to overturn existing law

[00:13:41] Speaker 00:
Killian has failed to establish that the precedent that this court has is inconsistent with Supreme Court law, such that there should be some sort of en banc review or the like.

[00:13:52] Speaker 00:
There's nothing here to Killian's arguments.

[00:13:56] Speaker 00:
He doesn't really attack the findings of the board, as much as saying somehow that the law that exists is wrong.

[00:14:04] Speaker 00:
As we sit here today, that can't be changed.

[00:14:06] Speaker 00:
The board followed the law as it exists.

[00:14:08] Speaker 00:
And as a result, properly found,

[00:14:10] Speaker 00:
that there is no technological improvement here of this method of identifying people who need SSVI benefits.

[00:14:18] Speaker 00:
The computer was used simply as a tool for this method to work.

[00:14:22] Speaker 00:
And therefore, the claims are patently eligible.

[00:14:25] Speaker 00:
To the extent this court has no further questions, I respectfully ask that it affirm the board's decision.

[00:14:33] Speaker 03:
Thank you.

[00:14:34] Speaker 01:
Oh, you can hear me?

[00:14:36] Speaker 03:
Yes.

[00:14:37] Speaker 03:
Go ahead, Mr. Mathis.

[00:14:37] Speaker 01:
Welcome back.

[00:14:38] Speaker 01:
I didn't realize I was muted.

[00:14:40] Speaker 01:
OK, shall I start on a bottle, Your Honor?

[00:14:42] Speaker 03:
Yes, please.

[00:14:44] Speaker 01:
OK, first of all, when it comes to the court declaring the claims abstract, it's just a completely capricious exercise.

[00:14:52] Speaker 01:
It's abstract because it's abstract.

[00:14:54] Speaker 01:
It's not abstract because of evidence.

[00:14:56] Speaker 01:
Evidence points to this being non-routine, non-conventional, totally unknown, before.

[00:15:02] Speaker ?:
But forget the computer.

[00:15:04] Speaker 01:
My apologies, Your Honor.

[00:15:08] Speaker 01:
Apologies.

[00:15:09] Speaker 01:
Anyway, again, it is just nothing more than a capricious declaration.

[00:15:13] Speaker 01:
The second part about, let's say, what is significantly more and what is abstract, the PTAB just says, well, it's somewhere out there.

[00:15:22] Speaker 01:
It doesn't define these terms.

[00:15:24] Speaker 01:
It says, well, somewhere out there, they're defined.

[00:15:26] Speaker 01:
And they are.

[00:15:27] Speaker 01:
There's nothing more than two more capricious steps and a completely capricious process by the Patent Trial Appeal Board.

[00:15:36] Speaker 01:
Third.

[00:15:37] Speaker 01:
when it comes to overturning any case law.

[00:15:42] Speaker 01:
To the extent that I am in conflict with Alice Mayo, none of my arguments are in conflict with a single line of Alice Mayo.

[00:15:51] Speaker 01:
As a matter of fact, and not all of Benson survives.

[00:15:55] Speaker 01:
Certainly not, I think, the part about claim eight.

[00:15:58] Speaker 01:
You want to talk about mental steps, and Fishby Microsoft does nothing more than take data, process data.

[00:16:04] Speaker 01:
Let's also go to McGrobey Bandai,

[00:16:06] Speaker 01:
McGrow v. Bandai does nothing more than take data and process data using nothing more than conventional steps.

[00:16:16] Speaker 01:
The whole point of McGrow using a first rule, the first rule's not defined.

[00:16:21] Speaker 01:
I don't even, it's just some nefarious first rule, no one knows what it means.

[00:16:26] Speaker 01:
Waiting data, that's been done forever.

[00:16:28] Speaker 01:
I literally have been working on electronic systems waiting data as far back as 1982.

[00:16:35] Speaker 01:
So if you're going to sit there and say that all these are conventional steps individually, and forget that all put together, that they make something greater than the individual, then you can't say that McRoe v. Bandai is a good decision.

[00:16:50] Speaker 01:
Personally, if you think about it, McRoe v. Bandai.

[00:16:54] Speaker 01:
No computer mentioned, no hardware.

[00:16:55] Speaker 01:
It could have begun completely within the human mind, and yet was held patent eligible.

[00:17:02] Speaker 01:
Now, on the other hand, McRobie Banda, excuse me, and Fishby Microsoft does mention a computer.

[00:17:07] Speaker 01:
I disagree with the analysis.

[00:17:10] Speaker 01:
I think the outcome is correct.

[00:17:11] Speaker 01:
Even though I disagree with the analysis, there's no advantage to self-referential tables.

[00:17:16] Speaker 01:
It was an assertion by the patentee that does not follow the lightest of analyses.

[00:17:22] Speaker 01:
So therefore, your honor, I would sit there and say that nothing I'm asking, I mean, I'm not asking this court to overturn anything

[00:17:31] Speaker 01:
that is in at least the Alice Mayo framework.

[00:17:37] Speaker 01:
And what I am asking this court to do is to force the United States Patent and Trademark Office to adhere to basic concepts of due process of law.

[00:17:46] Speaker 01:
That's it.

[00:17:48] Speaker 01:
And without due process of law, without a process that, I mean, again, it's nothing more than arbitrary and capricious.

[00:17:57] Speaker 01:
All these terms as used by the Patent Office are arbitrary and capricious.

[00:18:02] Speaker 01:
And even with respect to some of your own decisions, your honor, I disagree with the analysis, even though I agree with the outcomes.

[00:18:09] Speaker 01:
Electric power groups, no computers have all been done in the human mind.

[00:18:12] Speaker 01:
Invest pic, no computer could have been completely done in the human mind and could have, and I think should have been addressed under mental steps.

[00:18:24] Speaker 01:
Mr. Mathis, I've got lost there.

[00:18:27] Speaker 02:
Are you saying that there is a mental steps doctrine that should bar patents from eligibility?

[00:18:34] Speaker 01:
Not the one you're thinking of, Your Honor.

[00:18:36] Speaker 01:
I'm thinking of mental steps as they completely happen within the human mind.

[00:18:41] Speaker 01:
It's completely as Congressman Thomas Nassie discussed in his own proposed language.

[00:18:47] Speaker 01:
If a machine is involved, a computer is involved, it can't be done in

[00:18:54] Speaker 01:
But let's stick to real mental processes that can only be done in the human mind.

[00:19:01] Speaker 01:
With that, I think my time is up, Your Honor.

[00:19:03] Speaker 03:
OK.

[00:19:03] Speaker 03:
Thank you very much.

[00:19:05] Speaker 01:
Your Honor, thank you so much for your time.

[00:19:07] Speaker 01:
Have a wonderful day.

[00:19:07] Speaker 03:
You too.

[00:19:08] Speaker 03:
Thanks to both counsel.

[00:19:10] Speaker 03:
Case is submitted.

[00:19:11] Speaker 03:
And the court will stand in recess.

[00:19:13] Speaker 01:
Also, thank you for your time.

[00:19:15] Speaker 03:
Court will stand in recess.