[00:00:00] Speaker 04:
We will hear argument in number 21-1906, the PC vendor logistics against IntelliCentrics.

[00:00:11] Speaker 04:
Mr. Hogan, please.

[00:00:13] Speaker 01:
Yes.

[00:00:14] Speaker 01:
Thank you, Your Honor.

[00:00:15] Speaker 01:
May it please the court.

[00:00:17] Speaker 01:
The district court erred when a found claim one of the 268s had an ineligible under 35 USC section 101 on a rule 12-26 mission to dismiss.

[00:00:30] Speaker 01:
There exists three separate ways for RepiFy to prevail here.

[00:00:34] Speaker 01:
If this court finds RepiFy on a United States grounds, then the district court ruling should be reversed in the case for mandate.

[00:00:43] Speaker 01:
The district court made three separate errors in applying the ALICE test.

[00:00:47] Speaker 01:
Two errors going to ALICE step one, and one error going to ALICE step two.

[00:00:51] Speaker 01:
If your honors will permit me, I'd like to begin my discussion on ALICE step two.

[00:00:59] Speaker 01:
Repifi contends and contends below that the presence and function of the electronic badge in claim one is an event of concept such that the claim is patent eligible.

[00:01:10] Speaker 01:
Below the district court, the party disputed whether or not the electronic badge in method claim one could function dynamically or as determined in real time.

[00:01:21] Speaker 01:
Now, in resolving that dispute, the district court resolved that fact against non-movement Repifi.

[00:01:29] Speaker 01:
I'm going to talk about the patent disclosure now.

[00:01:32] Speaker 01:
The 268 patent specification describes a dynamics function and by electronic badge in the claim in a few places.

[00:01:41] Speaker 01:
I'm going to refer to the record now.

[00:01:43] Speaker 01:
For example, appendix one.

[00:01:45] Speaker 04:
Council, council, can I just ask, are you suggesting there was something procedurally inappropriate about a decision on what amounts to a claim construction question of a 12B6 motion?

[00:02:00] Speaker 01:
I am, Your Honor.

[00:02:02] Speaker 01:
I am.

[00:02:03] Speaker 01:
As I mentioned, because there was dispute below on whether or not the badge could, in fact, have function in real time.

[00:02:09] Speaker 01:
Rep and Vice took the position that it could, by virtue of the claim language and disclosure and the patent.

[00:02:16] Speaker 01:
And IntelliCentric said, no, that's not how it works.

[00:02:19] Speaker 04:
And construction can't be decided on a motion to dismiss?

[00:02:24] Speaker 01:
Client destruction, I think, certainly can be.

[00:02:26] Speaker 01:
I think this court's precedent says that aloud.

[00:02:28] Speaker 01:
I'm making a different point, Ron, and that is that there was a fact dispute.

[00:02:33] Speaker 01:
There was, it's a totally different thing.

[00:02:36] Speaker ?:
Okay.

[00:02:36] Speaker 02:
The fact dispute is something that underlies claims.

[00:02:40] Speaker 02:
What is the relevance of the fact dispute?

[00:02:44] Speaker 01:
Only just all that on a motion to dismiss, all facts in the well-paid complaint must be resolved in favor of non-movement.

[00:02:50] Speaker 01:
And the non-movement below was repifying, not intelligent.

[00:02:54] Speaker 02:
And so the question, help me understand a little bit more.

[00:02:59] Speaker 02:
Had the court found this fact in your favor, how would it show that there was an inventive concept under Alice Step 2?

[00:03:07] Speaker 01:
Yes, Your Honor.

[00:03:09] Speaker 01:
Had the court found in our favor on this fact that the electronic badge functions in real time in the claims, it would have meant that that's been a concept in that there's no evidence in the record that electronic badges

[00:03:23] Speaker 01:
in vendor credentialing technology could ever act in real time.

[00:03:27] Speaker 02:
Did everybody have a hard time with your argument because you add in the claims?

[00:03:31] Speaker 02:
That sounds like claim construction.

[00:03:35] Speaker 01:
I understand, Your Honor.

[00:03:37] Speaker 01:
I guess I'm having trouble with that comment from Judge Tronto.

[00:03:43] Speaker 01:
I'm not sure everything goes to what's within the claim that claims construction.

[00:03:47] Speaker 01:
I think the meaning of the claim and the meaning of a claim term in a claim

[00:03:52] Speaker 01:
right, could be kind of construction, obviously.

[00:03:55] Speaker 01:
But the physical ability of something to operate in the claim, I think, is totally different.

[00:04:00] Speaker 02:
Can I ask you a question?

[00:04:01] Speaker 02:
Why are you inserting in the claim that the badge operates in real time in the claim, and therefore that's an inventive concept?

[00:04:13] Speaker 02:
The district court judge said the claim doesn't require real time.

[00:04:18] Speaker 02:
Isn't that what the district court judge said?

[00:04:22] Speaker 01:
Not exactly, Your Honor.

[00:04:25] Speaker 01:
The district court found, I want to look at, I think it's page 18 or 19 of the record, I can get you there.

[00:04:31] Speaker 01:
The district court found that the electronic badge was an off-the-shelf conventional component.

[00:04:41] Speaker 01:
And therefore, because allegedly there was no improvement to that technology, that structure itself, then there could be no intent of concept.

[00:04:49] Speaker 01:
That was the thrust of the district court's opinion.

[00:04:52] Speaker 01:
You can direct it to that.

[00:04:54] Speaker 01:
Apparently, it's to appendix page 18 to 19.

[00:04:56] Speaker 02:
Has the specification said that the badge was commercially available smart cards, for example, with an e-paper writable display, right?

[00:05:05] Speaker 02:
Yes, sir.

[00:05:07] Speaker 02:
OK.

[00:05:07] Speaker 02:
And so your point is that that was an error because it should have been appreciated that the electronic badge is not off the shelf?

[00:05:16] Speaker 01:
No, no, your electronic badge is off the shelf.

[00:05:19] Speaker 01:
I guess our point is

[00:05:21] Speaker 01:
So claim one is a method claim, right?

[00:05:22] Speaker 01:
It involves 13 steps.

[00:05:24] Speaker 01:
And our point is the electronic badge in the method operates in real time.

[00:05:28] Speaker 01:
And that fact was not appreciated by the district court.

[00:05:32] Speaker 01:
And that fact itself is an error, right?

[00:05:35] Speaker 01:
Because that's what the patents will just be contended.

[00:05:37] Speaker 01:
Where in your claim does it talk about real time?

[00:05:40] Speaker 01:
Yes, Your Honor.

[00:05:45] Speaker 01:
Well, two answers to that question, Your Honor.

[00:05:48] Speaker 01:
First, it doesn't use the words in real time.

[00:05:50] Speaker 01:
They're not literally there.

[00:05:52] Speaker 01:
We contend that the actual words, the context, evinces in real-time functionality.

[00:05:57] Speaker 01:
I would point beyond, Your Honor, to at least step J on the appendix 128, column 7,

[00:06:08] Speaker 02:
about their recording, J, recording by the credentialing platform geolocation data of the visitor during the visitor's presence in the predefined area?

[00:06:19] Speaker 01:
Yes, Your Honor.

[00:06:19] Speaker 01:
That's one step that reflects it, and as well step M, removing from the badge display the additional showing access by the visitor's authorized.

[00:06:29] Speaker 01:
Right?

[00:06:30] Speaker 01:
That relates back to step J. And that's eventing the badge changing in real time based on

[00:06:37] Speaker 01:
the visitor's presence in or out of the predefined area.

[00:06:44] Speaker 02:
OK.

[00:06:44] Speaker 02:
But you don't really have to say real time.

[00:06:46] Speaker 02:
It's right in the claim.

[00:06:47] Speaker 02:
The things you're relying on, people have different views of real time.

[00:06:50] Speaker 02:
Some people might say it's within a few seconds.

[00:06:54] Speaker 02:
Some people say it's within a few minutes.

[00:06:56] Speaker 02:
Maybe real time here in this context could be within a few minutes.

[00:07:00] Speaker 02:
You've got J and K. I mean, obviously,

[00:07:03] Speaker 02:
There has to be something, you know, timely about it.

[00:07:08] Speaker 02:
It's recording during the presence, and it's removing when the visitor is authorized, okay?

[00:07:19] Speaker 02:
Yes, Your Honor.

[00:07:20] Speaker 02:
So you think that the district court judge ignored these limitations?

[00:07:26] Speaker 01:
I think in essence, with all due respect, Your Honor, yes, I think so.

[00:07:29] Speaker 01:
They were given a short trip, and I do want to point, Your Honor,

[00:07:33] Speaker 01:
The appendix 127 of the previous page, column 6, lines 13 to 15, which I'll read that.

[00:07:44] Speaker 01:
It says once the visitor checks out, the edition showing access by the visitor is authorized, is removed from the display on the electronic badge.

[00:07:53] Speaker 01:
Further evidence that the badge operates in, you know, it's a dynamic functionality as described in the specification.

[00:07:59] Speaker 01:
There's another type I can give you, and it's claimed here in claim one.

[00:08:08] Speaker 02:
So your view is that this is an inventive concept.

[00:08:11] Speaker 03:
Yes, Your Honor.

[00:08:14] Speaker 03:
When you say the badge operates with dynamic functionality, what do you mean?

[00:08:20] Speaker 03:
Are you really just saying that when the person is leaving, the badge shows they're no longer authorized to be there?

[00:08:31] Speaker 03:
Yes, Your Honor.

[00:08:32] Speaker 03:
Exactly.

[00:08:35] Speaker 02:
Would that happen?

[00:08:38] Speaker 02:
in a conventional, non-automatic, I guess how the people were previously admitted into buildings and restricted access locations where there was actually a person at a reception desk, they would have, badge would be taken away, right?

[00:08:58] Speaker 01:
But your first question, Your Honor, did it happen in conventional settings?

[00:09:02] Speaker 01:
No, it did not.

[00:09:02] Speaker 01:
Because you get, you know, people walk into a hospital and they give you a paper badge and slap it on your chest.

[00:09:08] Speaker 01:
And now, you know, that doesn't, you know, the automatic or the in real time removal of the authorization, whether that takes your information off the badge and it's blank, or you get a big red X that gives you overtime, or you left the area you're authorized for, that depends on the administrator's particular rules in any given system.

[00:09:26] Speaker 01:
But that didn't happen in the past.

[00:09:28] Speaker 01:
You're right, Your Honor.

[00:09:29] Speaker 02:
And your other question about can someone just take it, you know, in this... I had to turn badges in at the end after,

[00:09:37] Speaker 02:
being allowed into a location I've had to turn the badge in to the person who gave it to me initially.

[00:09:42] Speaker 02:
I think I understand your argument.

[00:09:47] Speaker 02:
Can I try articulating what I think your argument is?

[00:09:49] Speaker 02:
You tell me if I'm right or wrong.

[00:09:50] Speaker 02:
I think you're saying there's a specific problem.

[00:09:53] Speaker 02:
that occurs when you have automatic entry of a person into a building without having someone at a reception desk or a printer there.

[00:10:03] Speaker 02:
And that problem is that I guess when the person leaves, the badge needs to be able to dynamically change or there's a problem because they've got a badge that says they're authorized, but they've left.

[00:10:18] Speaker 02:
So they should have to re-undergo the process of seeking access to the building.

[00:10:25] Speaker 02:
And so you've got this problem, and so you solve the problem by changing their display.

[00:10:30] Speaker 02:
Do I have that right?

[00:10:31] Speaker 01:
Yes, Your Honor, you do.

[00:10:37] Speaker 01:
I see I'm running out of time here.

[00:10:39] Speaker 01:
And I want to make one additional point on step two that I will move on.

[00:10:45] Speaker 01:
And that is that in the complaint here,

[00:10:48] Speaker 01:
the complaint alleges, in real time, functionality by the bag as well.

[00:10:53] Speaker 01:
And if you would go to page 33 of the appendix, I'm sorry, 32 of the appendix.

[00:11:01] Speaker 01:
And it's paragraph 7 is right towards the bottom.

[00:11:05] Speaker 01:
The sentence there, I'll read it to you when you all come up.

[00:11:11] Speaker 01:
Notice the bottom of the sentence, the bottom part.

[00:11:18] Speaker 01:
The claimed invention's electronic identification technology facilitates real-time credentialing, verification, and physical vendor badges via an electronic badge remotely connected to a user's smartphone, and it continues.

[00:11:33] Speaker 01:
In addition, the next page, appendix page 33, at paragraph 9, there's another vermin in the complaint.

[00:11:41] Speaker 01:
And it's actually not all paragraph 9, but I'll just read the last sentence, which I think is directly on point here,

[00:11:47] Speaker 01:
The claim method facilitates knowledge of which users are on site in real time, or after the fact, with detailed vision analytics.

[00:11:55] Speaker 01:
Again, on the real public expressions of Smith, those statements, you know, all while playing the facts and the claim might be taken as true.

[00:12:04] Speaker 02:
What if, okay, say they're taken as true, but the response is to say, automating something that previously was manual is itself an abstract idea.

[00:12:15] Speaker 02:
Making the badge go from, yes, you're authorized, to when the person leaves, no, you're not authorized, is itself an abstract idea.

[00:12:25] Speaker 02:
An abstract idea itself can't be the inventive concept.

[00:12:29] Speaker 01:
How do you respond to that?

[00:12:32] Speaker 01:
I understand the question, Your Honor.

[00:12:33] Speaker 01:
I would reply to that.

[00:12:36] Speaker 01:
Having the communication between the phone and the badge is controlled by the platform or a combination of elements that are novel, right?

[00:12:46] Speaker 01:
There's no event in the record that says that that is itself ever been done by human beings or having a badge that could change in real time if it was done by human beings.

[00:12:54] Speaker 01:
And so I would say no, that's not simply automating what human beings have done in the past.

[00:12:58] Speaker 02:
So, in your view, just to make sure I understand, we've established that that badge is conventional, right?

[00:13:05] Speaker 02:
The patent specification says so.

[00:13:08] Speaker 02:
And you're saying that, but it wasn't conventional to change whatever was on that badge in real time or something close to real time.

[00:13:21] Speaker 04:
Mr. Hogan, yeah, you've used most of your rebuttal time.

[00:13:27] Speaker 04:
I'll give you three minutes on rebuttal, but we should hear from Mr. Hogan now.

[00:13:32] Speaker 04:
Thank you, Your Honor.

[00:13:37] Speaker 00:
Thank you, Your Honor.

[00:13:37] Speaker 00:
May it please the court.

[00:13:40] Speaker 00:
Repifi's entire appeal boils down to two arguments.

[00:13:42] Speaker 00:
First, that its invention improved computer operation because the passage in the specification says so, and second,

[00:13:50] Speaker 00:
But the claim use of a rewritable electronic badge was new.

[00:13:56] Speaker 00:
Neither of these arguments refute the district court's conclusion that claim one is directed to a long standing human practice, admittedly long standing human practice implemented with generic technology.

[00:14:08] Speaker 02:
Mr. Cover.

[00:14:09] Speaker 02:
I want to ask you quickly about Mr. Hogan's last point, which he says there's nothing in the pattern of the records for the idea that these conventional, uh, rewritable badges, um, could be rewritten in real time or real near real time.

[00:14:25] Speaker 02:
Is that correct?

[00:14:26] Speaker 02:
Do you agree with that?

[00:14:27] Speaker 00:
No, your honor.

[00:14:28] Speaker 00:
Uh, RepiFi can't claim dynamic and real time functionality as an event of concept.

[00:14:33] Speaker 00:
because RepiFi did not invent that functionality, did not invent the badge.

[00:14:38] Speaker 00:
The specification, if we look at the specification on column five, line 65, it says that the prior art badge was rewritable.

[00:14:51] Speaker 00:
The badge display changed.

[00:14:53] Speaker 00:
It was dynamic.

[00:14:54] Speaker 00:
It was rewritable.

[00:14:56] Speaker 00:
That's nothing new.

[00:14:58] Speaker 00:
And even the manual process, if we look at column one,

[00:15:03] Speaker 00:
Line 34 through 36, it says, in the past, when such workers referring to the receptionist, or I'm sorry, referring to the visitors finished the job, the badge is surrendered or the badge is dated so that the person no longer may access the facility.

[00:15:19] Speaker 00:
So the badge display is changing in the manual process.

[00:15:22] Speaker 00:
It's changing in the automated process.

[00:15:25] Speaker 00:
There's no clarification in the claim, whether this is in real time, whether it's dynamic,

[00:15:31] Speaker 00:
The only changing of the display mentioned in the claim is displaying that the visitor has authorization and then removing it.

[00:15:41] Speaker 00:
It's binary.

[00:15:42] Speaker 00:
There's no dynamic constant changing going on in the claim.

[00:15:47] Speaker 00:
So does that answer your question, Your Honor?

[00:15:51] Speaker 00:
Yes, thank you.

[00:15:55] Speaker 02:
You were talking about the alleged advantages discussed, I think, in column six of the patent.

[00:16:02] Speaker 02:
Do you have an argument beyond what the district court said?

[00:16:04] Speaker 02:
The district court said that the advantages were the result of automation, and that the automation itself is an abstract idea.

[00:16:13] Speaker 02:
So those advantages can't form an inventive concept.

[00:16:17] Speaker 02:
That's how I understand the district court.

[00:16:19] Speaker 00:
I would agree with the district court, your honor, on that point.

[00:16:23] Speaker 00:
Uh, these, you know, at most are the inherent benefits of applying the abstract idea on a smartphone and electronic badge.

[00:16:31] Speaker 00:
You know, you're going to increase the efficiency of that process, of course, by, by implementing it with this technology.

[00:16:38] Speaker 00:
But the court has said many times that simply invoking the smartphone as a tool, invoking the electronic badge as a tool is not going to be sufficient.

[00:16:47] Speaker 00:
Um, and, and really it's step one.

[00:16:50] Speaker 00:
And my understanding of repifies argument is that this improvement that point column six is talking about relates to step one in some way.

[00:16:59] Speaker 00:
But as a preliminary matter, this, this column six argument doesn't really have any bearing on the step one analysis in this case, because step one turns on what claim one as a whole is directed to.

[00:17:11] Speaker 00:
And repifies never argued either here and it's open and it's briefing before this court or in the district court.

[00:17:17] Speaker 00:
that claim one is directed to any kind of improved computer.

[00:17:22] Speaker 00:
Repifi has said, including in its briefing before this court, that the patent is directed to and claims a method for credentialing visitors to access controlled buildings by an access administrator.

[00:17:33] Speaker 00:
That's in its briefing on pages seven and 32 of its opening appellate brief.

[00:17:38] Speaker 00:
It's in its complaint on page 32 of the joint appendix.

[00:17:43] Speaker 00:
And it's in column one, lines 56 through 58 of the patent.

[00:17:47] Speaker 00:
Um, so when we take what repifies saying the patent is directed to, we know that's a longstanding practice because the patent says it is the patent in column one lines through 11 through 36, uh, makes clear that it was common for human receptionist to perform this method, uh, with literal paper, paper badges.

[00:18:08] Speaker 00:
Um, and, and that's really the same type of, uh, abstract process, longstanding practice that the court

[00:18:15] Speaker 00:
found unpatentably abstract in Erickson versus TCL, the court in that case said that it's repeatedly found unpatentable method claims involving the steps of requesting access, receiving and evaluating that request, and granting or denying that request.

[00:18:31] Speaker 00:
And here we have all three of those steps in the claim.

[00:18:34] Speaker 00:
The court in Erickson specifically identified office buildings that allow certain employees entrance to only certain floors

[00:18:43] Speaker 00:
as an example of an abstract concept pervasive in human activity.

[00:18:47] Speaker 00:
And RepiFi's reply brief never addresses that precedent.

[00:18:51] Speaker 00:
And that's in the first sentence of our response brief.

[00:18:54] Speaker 00:
We think that's pretty telling.

[00:18:56] Speaker 00:
Since RepiFi is not disputing that claim one is directed to a longstanding practice, there's really no basis to disturb the district court's holding on step one.

[00:19:06] Speaker 00:
And as a matter of law, claim one is directed to the longstanding practice and abstract idea of controlling access through credentialing.

[00:19:14] Speaker 02:
So I asked you in column six, one of the specific advantages identified in the patent is that the electronic communication via, for example, NFC between the smartphone and the electronic badge improves processing speed and efficiency since separate logging in of data is not required.

[00:19:35] Speaker 02:
Why does that not create an inventive content?

[00:19:38] Speaker 00:
But we think that that's talking about improving the process.

[00:19:43] Speaker 00:
And I realize just before that, it says improving computer operation.

[00:19:46] Speaker 00:
But frankly, it doesn't make any sense to me how using electronic communication improves the computer.

[00:19:54] Speaker 00:
It seems to be saying that it's improving the speed and efficiency of the credentialing process, the manual process, by doing it on a computer.

[00:20:04] Speaker 00:
So we would not say that that involves an inventive concept.

[00:20:08] Speaker 00:
But in any event,

[00:20:09] Speaker 00:
NFC doesn't appear anywhere in the claim language.

[00:20:11] Speaker 00:
We know that's not required by the claim.

[00:20:14] Speaker 00:
And if we're looking at column six, I would just note here that simply stating in the specification that you're improving the computer operation, you know, the court has said that that's not going to be sufficient.

[00:20:31] Speaker 00:
You've got to describe how you're solving a computer problem.

[00:20:37] Speaker 02:
there's no requirement to, because there's a requirement to enter enrollment information only once, right?

[00:20:43] Speaker 02:
Isn't that the how?

[00:20:45] Speaker 02:
And point I think is that that how relates to improving the process.

[00:20:50] Speaker 00:
Yes, your honor.

[00:20:51] Speaker 00:
Yes, your honor.

[00:20:52] Speaker 00:
That would be improving the process.

[00:20:54] Speaker 00:
And again, not mentioned in the claim at all.

[00:20:56] Speaker 00:
There's no requirement to only enter enrollment information only once.

[00:21:00] Speaker 00:
But even if we read it that way, that isn't that isn't improving any technological process that's not improving a computer that's improving the manual process of credentialing by automating it with a smartphone and electronic badge.

[00:21:15] Speaker 00:
And, and I would just.

[00:21:18] Speaker 00:
note for, you know, the court has repeatedly said that merely adding computer functionality to increase speed or efficiency, literally that same benefit, speed or efficiency of the process does not confer patent eligibility on an otherwise abstract idea.

[00:21:33] Speaker 00:
Again, that's out of Erickson versus TCL.

[00:21:36] Speaker 00:
And really what this is, is not any kind of improvement to a computer or smartphone or electronic badge,

[00:21:44] Speaker 00:
But what this court identified an electric power group versus Alstom as, quote, an asserted advance in the use to which existing computer capabilities could be put.

[00:21:55] Speaker 00:
And that's exactly what RepiFi is telling us in their briefing.

[00:21:58] Speaker 00:
They're saying, look, this is a new use.

[00:22:00] Speaker 00:
This is a new use of the smartphone, new use of the electronic battery.

[00:22:04] Speaker 00:
But that is not sufficient for patent eligibility.

[00:22:07] Speaker 00:
There's no improvement to the technological process.

[00:22:18] Speaker 00:
And unless the court has any further questions on step one, I was going to move to step two.

[00:22:23] Speaker 00:
We've already briefly addressed it.

[00:22:26] Speaker 00:
But even assuming, well, I would start with the court had mentioned and asked Mr. Hogan whether or not the language

[00:22:43] Speaker 00:
Whether or not the claims require dynamic in real time, I won't beat a dead horse here.

[00:22:48] Speaker 00:
We don't believe that the claim requires that.

[00:22:51] Speaker 00:
Again, the claim only requires this binary change.

[00:22:57] Speaker 00:
But even reading the claim to require that, as we've already said, we don't, RepiFi did not invent that concept.

[00:23:05] Speaker 00:
It's already described as generic, routine, and conventional.

[00:23:09] Speaker 00:
If RepiFi had invented anything related to an electric badge,

[00:23:13] Speaker 00:
we would expect to see something about it in the specification.

[00:23:16] Speaker 00:
Specification doesn't tell us anything about how to improve or make an electronic badge.

[00:23:21] Speaker 00:
It just literally tells us where to buy one.

[00:23:24] Speaker 00:
Column 5, line 62 through 67 identifies by make and model what the badge is.

[00:23:31] Speaker 00:
And again, we know that it was dynamic and could change in real time because it says it was rewritable.

[00:23:37] Speaker 00:
And I would note that this court has actually addressed this specific function in many cases

[00:23:43] Speaker 00:
In the context of a patentee claiming that it's an inventive concept, and it's rejected this specific function.

[00:23:49] Speaker 00:
In Two Way Media versus Comcast, court was reviewing a patent directed to monitoring the delivery of real-time information to users.

[00:23:58] Speaker 00:
The court said that collecting information, analyzing it, and displaying results is an abstract idea, even when undertaken in real time.

[00:24:05] Speaker 00:
So there the court's actually finding that this is an abstract idea in and of itself.

[00:24:11] Speaker 00:
And in support of that proposition, the court cited electric power grid versus Alstom.

[00:24:16] Speaker 00:
And in that court, in that decision, the court held that detecting events on an interconnected electric power grid in real time and displaying dynamic stability metrics was not even arguably an inventive concept.

[00:24:30] Speaker 00:
And finally, I would note that Alice itself refused to recognize an inventive concept based on a computerized function of updating records

[00:24:39] Speaker 00:
quote, in real time as transactions are entered.

[00:24:42] Speaker 00:
So that was a benefit in Alice of applying intermediated settlement on a computer.

[00:24:47] Speaker 00:
You could get the records updated in real time.

[00:24:49] Speaker 00:
Humans could not do that.

[00:24:51] Speaker 00:
Nevertheless, that was not enough for an inventive concept.

[00:24:56] Speaker 00:
This isn't a situation where we have an ordered combination either, an inventive ordered combination.

[00:25:03] Speaker 00:
Reprifies position seems to be that unless the patent admits that every element of the claim existed in the prior art and their language as specifically arranged and claimed, then the claimed arrangement automatically constitutes an inventive ordered combination.

[00:25:18] Speaker 00:
And that's never been the law.

[00:25:20] Speaker 00:
This court has rejected that very argument in Western bank shares.

[00:25:23] Speaker 00:
Western Express bank shares versus Breen Dot Corporation, the court said that the absence of the exact invention in the prior art does not prove the existence of an inventive concept.

[00:25:35] Speaker 00:
And that accords with the Supreme Court's recognition in Diamond vs. Deer that the novelty of the process is of no relevance.

[00:25:42] Speaker 00:
We're not looking at whether this exact combination existed in the prior art.

[00:25:45] Speaker 00:
That's not the inquiry.

[00:25:47] Speaker 00:
The order of combination is not simply the combination of a long-standing practice with generic technology.

[00:25:54] Speaker 00:
As Alice put it, transformation into patent-eligible application requires more than simply stating the abstract idea while adding the words apply it using generic technology.

[00:26:07] Speaker 00:
And this isn't a situation like in VASCOM where you had a combination that actually improved

[00:26:15] Speaker 00:
an existing technological process.

[00:26:19] Speaker 00:
The technology in Bascom involving filtering content on a computer, on the internet, there were many methods in the prior art that already existed.

[00:26:29] Speaker 00:
And Bascom was improving that method by combining the advantages of the prior methods and discarding the disadvantages.

[00:26:37] Speaker 00:
There is no pre-existing technological process that's being improved here.

[00:26:42] Speaker 00:
And there's certainly nothing in the specification that suggests that a particular combination is resulting or producing some type of inventive concept.

[00:26:51] Speaker 00:
The only thing discussed in the specification that is the improvement is, hey, we should do this on a smartphone.

[00:26:56] Speaker 00:
We should do this with an electronic badge.

[00:26:59] Speaker 00:
And the court addressed a similar argument in Universal Secure.

[00:27:04] Speaker 00:
The court said nothing in the specification

[00:27:07] Speaker 00:
suggesting or any other factual basis for plausible inference as needed to avoid dismissal on a rule 12-6 motion, that the claim combination of conventional components achieves more than the expected sum provided by each component.

[00:27:22] Speaker 00:
That's exactly what we have here.

[00:27:24] Speaker 00:
The combination did not create any inventive concepts.

[00:27:27] Speaker 00:
It certainly didn't create dynamic real-time functionality.

[00:27:31] Speaker 00:
And if there's any

[00:27:36] Speaker 00:
doubt about whether this is an order combination.

[00:27:38] Speaker 00:
I mean, the specification even says, column four, line 55 through column five, line three, that certain steps like requests for access and approvals may occur in any order or simultaneously, which is really the opposite of order.

[00:27:57] Speaker 00:
It's not even specified to be in that exact ordering.

[00:28:05] Speaker 00:
And for these reasons, we would ask the court to affirm.

[00:28:07] Speaker 00:
And if the court has any further questions, I have nothing further.

[00:28:12] Speaker 04:
Thank you very much, Mr. Hook.

[00:28:15] Speaker 04:
And you have a couple of minutes, I think.

[00:28:19] Speaker 01:
Thank you, Your Honor.

[00:28:19] Speaker 01:
I want to address quickly a couple of points raised by Mr. Coburn.

[00:28:23] Speaker 01:
And first of all, there's no requirement that the patentee invented an electronic badge or a smartphone.

[00:28:30] Speaker 01:
And no one has, what if I claimed that, claimed one of the method claims.

[00:28:34] Speaker 01:
It is in fact an order combination.

[00:28:37] Speaker 01:
That's being overlooked here.

[00:28:38] Speaker 01:
I think it was the district court overlooked at that very point.

[00:28:42] Speaker 01:
Again, the use of visitor geolocation as a way to, you know, monitor and manage visitor action in these control facilities, that's nothing that the record does not show that human beings ever did that, right?

[00:28:56] Speaker 01:
And I don't think that whether or not it's in the priorities or the point.

[00:28:58] Speaker 01:
The point is there's a record in this case on the real telecommunications estimates show that human beings can do that.

[00:29:04] Speaker 01:
And it doesn't show that we would submit.

[00:29:07] Speaker 01:
And again, Mr. Coburn raised the point that while, you know, the improvements in column six of the patent at appendix 127 doesn't improve technology itself.

[00:29:19] Speaker 01:
This is morphing over to step one here.

[00:29:23] Speaker 01:
But this court has held that patentable improvements are not limited to physical components alone.

[00:29:28] Speaker 01:
I mean, that's the in fish case and the cardio net case.

[00:29:34] Speaker 01:
One thing I think Mr. Copeland conceded was that they were improving the process.

[00:29:41] Speaker 01:
And so column six of the patent is not trying to present or disclose that it's a new processor or it's a new architecture of computers.

[00:29:52] Speaker 01:
That's not what the patent's directed to.

[00:29:54] Speaker 01:
It's a method claim, a method of vendor credentialing.

[00:29:57] Speaker 01:
And this is stating merely it is improving computer operation

[00:30:03] Speaker 01:
vendor credentialing technology, right?

[00:30:05] Speaker 01:
That's the point of that disclosure.

[00:30:07] Speaker 01:
And I think this report, again, overlooked that.

[00:30:11] Speaker 01:
And I want to address step one.

[00:30:12] Speaker 01:
I think we talked about step two enough, and I only have a minute to go.

[00:30:16] Speaker 01:
The district court, in looking at the claim, I think committed a reversal error by viewing the claim too remotely and sort of unpredicted the claim language.

[00:30:24] Speaker 01:
And by doing that, the court considered the claim as well credentialing visitors and check-in and check-out.

[00:30:30] Speaker 01:
And I think that the appendix I want to take, case 12, you know, the court writes analysis, mail step winning stories focused not on the individual, specifically, elements of the claim.

[00:30:43] Speaker 01:
Instead, all the elements taken as a whole.

[00:30:46] Speaker 01:
And I think by doing that, it's just figured, oh, this is credentialing, oh, he's been done this forever, this is nothing, this is nothing.

[00:30:57] Speaker 01:
But this court has held in the Vascon case,

[00:31:00] Speaker 01:
that even a concept may arise in one or more individual claim limitations or any other combination of limitations.

[00:31:07] Speaker 01:
And that is what we are arguing before the court.

[00:31:11] Speaker 01:
And with that, I think I'm going to yield the remaining 10 seconds.

[00:31:16] Speaker 01:
Thank you.

[00:31:17] Speaker 04:
And we'll end there.

[00:31:19] Speaker 04:
And our thanks to both counsel.

[00:31:21] Speaker 04:
And that case is submitted.