[00:00:00] Speaker 03:
Our first case for argument on today's panel is 20-1319, Signature Systems versus American Express.

[00:00:08] Speaker 03:
Mr. Pennington?

[00:00:13] Speaker 03:
Feel free to take your mask off while you argue.

[00:00:17] Speaker 05:
Thank you.

[00:00:17] Speaker 05:
Good morning.

[00:00:19] Speaker 05:
May it please the court?

[00:00:20] Speaker 05:
My name is Edward Pennington.

[00:00:22] Speaker 05:
I'm for repellent signature systems.

[00:00:26] Speaker 05:
I'd like to start off with one concession.

[00:00:32] Speaker 05:
of our blue brief that the CDM should not have been instituted.

[00:00:38] Speaker 05:
So we'll concede that work.

[00:00:42] Speaker 05:
Now, I'd like to start off with a brief review of how we got here.

[00:00:47] Speaker 05:
This is a very unusual piece.

[00:00:50] Speaker 05:
Our patent issued in 2013 as patent number 8-423-402.

[00:01:00] Speaker 05:
titled Method and System for Electronic Exchange of Reward Points.

[00:01:05] Speaker 05:
So just by the title alone, it tells you that this patent involves business methodology and software.

[00:01:14] Speaker 05:
Both of those have been allowed patentability by the Supreme Court and various panels and

[00:01:22] Speaker 05:
reviews of this court.

[00:01:26] Speaker 05:
But there was a case that came out in 2014 that everybody's familiar with called Alice Court, the PLS bank, which seemed to give a lot more scrutiny to those kinds of patents.

[00:01:43] Speaker 05:
And indeed, for my client, there was a concern that the patent issued in 2013

[00:01:50] Speaker 05:
Alice comes along in 2014, so it sort of casts a shadow on the patent.

[00:01:58] Speaker 05:
Nonetheless, in January of 2015, my client sued Amex for infringement in the Southern District of Florida on the 402 patent.

[00:02:10] Speaker 05:
Not long after the suit was filed,

[00:02:14] Speaker 05:
signature filed a request for supplemental examination at the Patent Office specifically to raise Alice as an issue.

[00:02:24] Speaker 05:
Even though the lawsuit was pending, we wanted this patent to be blessed, if you will, by the Patent Office because of the doubts raised by Alice.

[00:02:40] Speaker 05:
And that's what we did.

[00:02:42] Speaker 05:
Once we got into examination at the Patent Office, we didn't go back to the original examiner.

[00:02:49] Speaker 05:
We went to a panel of three re-exam experts.

[00:02:54] Speaker 04:
Can I just ask, what is the point that you're building to by reciting this history?

[00:03:01] Speaker 05:
I'm getting to the point that this patent has been scrutinized by the Patent Office, not just at the pre-grant level, but at the post-grant level.

[00:03:11] Speaker 00:
And that, do you think, as a matter of law, should save you in this instance?

[00:03:17] Speaker 00:
That it shouldn't be reviewable again in this context?

[00:03:20] Speaker 00:
Or that you should get some benefit of the doubt in this context?

[00:03:24] Speaker 00:
Where does that lead you?

[00:03:25] Speaker 05:
To the benefit of the doubt, Your Honor.

[00:03:27] Speaker 05:
I don't believe that that makes it mispositive.

[00:03:30] Speaker 05:
But it is instructive in terms of what is and what is not

[00:03:40] Speaker 00:
Do we have any cases that would support that legal proposition that if you've gone through an exam or a re-exam, you get a benefit of the doubt in a subsequent proceeding?

[00:03:50] Speaker 05:
Your Honor, I've been on the other side of this issue where the patent owner said, oh, the issue came up at the examination level.

[00:03:59] Speaker 05:
And the district court said, no, that doesn't matter.

[00:04:02] Speaker 05:
We can review that at all we want.

[00:04:04] Speaker 05:
And I agree that an examiner can make a mistake.

[00:04:10] Speaker 05:
It is a mistake if they issue that patent knowing that 35 USC 101 is out there.

[00:04:16] Speaker 05:
But in this case, I haven't found another case where there was a post-grant review.

[00:04:24] Speaker 05:
We have a CDM, and that's why we're here, but this was a request for supplemental examination.

[00:04:30] Speaker 03:
not by the original examiner, it's a panel, and they thoroughly reviewed the issue of... Yes, but Congress came along and created the CBM review process by statute, allowed for there to be a preponderance of the evidence standard to be used in assessing evidence.

[00:04:52] Speaker 03:
and allowed a de novo reevaluation of the patent.

[00:04:57] Speaker 03:
And all of that was done by Congress.

[00:04:59] Speaker 03:
How do you expect us to override Congress?

[00:05:02] Speaker 05:
I don't expect you to override Congress, Your Honor.

[00:05:05] Speaker 05:
What I'm hoping is that the Fed Circuit will recognize how difficult it is to determine whether something is an abstract idea or not.

[00:05:20] Speaker 05:
there was a myriad of decisions and thoughts about what it means and what to do with it.

[00:05:26] Speaker 00:
Well, no, that's true.

[00:05:27] Speaker 00:
That's true of every 101 case.

[00:05:29] Speaker 00:
We've all struggled with how you define the parameters of an abstract idea.

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So why don't you take us to this case and why you think there was error here in designating this as an abstract idea.

[00:05:42] Speaker 05:
I think it comes down to currency exchange law.

[00:05:46] Speaker 05:
The PTAN ruled in favor of petitioner

[00:05:51] Speaker 05:
because they said that this was nothing more than a currency exchange where you are using reward points.

[00:06:00] Speaker 05:
And that is the PTAB said the claims were directed to the abstract idea of currency exchange through transferring and exchanging reward point data.

[00:06:14] Speaker 05:
Our point on that is reward points are not currency.

[00:06:18] Speaker 05:
And we argued at PTAB

[00:06:21] Speaker 05:
that it's a simple matter of definition, that currencies are money, hard currency.

[00:06:31] Speaker 00:
But our case law says that it has to be a currency.

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And you're saying currency is only money.

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You can't be trading goods or some other.

[00:06:38] Speaker 05:
But this was the basis for them deciding that this was an abstract idea.

[00:06:43] Speaker 04:
But if you just call it private script, why is that not this?

[00:06:48] Speaker 04:
Private script is not by the script.

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It's a specific thing.

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These are reward points.

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So these are defined in the patent.

[00:07:00] Speaker 05:
The claim defines that there are two different types.

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And the claim defines that this is really about conversion of one type to another type.

[00:07:11] Speaker 05:
It's not currency exchange.

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And in order to do that, implicit in that is that I user have to have an account with both places where the two different

[00:07:21] Speaker 05:
We'll just spend 30 seconds telling us what this claim does, what this claim says, what it's about.

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a bank like Visa.

[00:07:37] Speaker 05:
I can accumulate points with my Visa card, and I can also have an account with United Airlines.

[00:07:45] Speaker 05:
And in that account, I'm getting, let's say, miles.

[00:07:49] Speaker 05:
There's no standard conversion between miles and points.

[00:07:53] Speaker 05:
Nor is there any standard conversion between miles.

[00:07:55] Speaker 00:
And then what is the claim here?

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What is the inventor concept?

[00:07:58] Speaker 05:
The claim here is that we were taking one type of point,

[00:08:03] Speaker 05:
We're converting it to the second type and putting it into the second account.

[00:08:10] Speaker 05:
So we're actually moving it, but not as fungible goods.

[00:08:14] Speaker 05:
We're not moving it as some reward points over here and moving it to some reward points over there.

[00:08:21] Speaker 05:
The claims all say that there has to be a predetermined conversion rate.

[00:08:26] Speaker 05:
And that's critical.

[00:08:28] Speaker 05:
That's decided.

[00:08:29] Speaker 00:
And you're exchanging something of value for something else of value.

[00:08:34] Speaker 05:
I own all those points.

[00:08:38] Speaker 05:
I'm not exchanging the points within those two places.

[00:08:43] Speaker 05:
That's my account at the first place, my account at the second place.

[00:08:48] Speaker 05:
I'm just moving some of those from the first place to my second place and they are now fungible because I've converted them.

[00:08:59] Speaker 04:
How is that different from, I have some euros and some

[00:09:03] Speaker 04:
dollars and I don't have enough of either one to buy, you know, an American car or something and so I go to an exchange and I exchange the euros for dollars and now I have enough.

[00:09:17] Speaker 05:
What's different?

[00:09:18] Speaker 05:
I see a lot of difference, John.

[00:09:20] Speaker 05:
Number one, in a currency exchange, you have a rate that's established by the market.

[00:09:26] Speaker 05:
It's not established by me.

[00:09:27] Speaker 05:
And it's not established by the kiosk that's doing the exchange or the bank that's doing the exchange.

[00:09:33] Speaker 05:
Here, the companies that have my accounts establish a conversion rate.

[00:09:42] Speaker 05:
And when I exchange money, let's say I'm at Dallas Airport,

[00:09:48] Speaker 05:
and I come back from Japan and I want to take my Japanese money and turn it into dollars.

[00:09:55] Speaker 05:
I don't need an account with that kiosk.

[00:09:59] Speaker 05:
I don't need an account that's holding my Japanese money.

[00:10:05] Speaker 05:
I just go there and hand it to them and they give me something back.

[00:10:08] Speaker 05:
So they are giving me something of theirs, whereas in this case, I'm giving something to myself at a conversion rate that was decided by

[00:10:20] Speaker 03:
The question of whether something is directed to an abstract idea is largely one of law.

[00:10:27] Speaker 03:
And in this case, whether we labor over whether this is like currency exchange or not, why don't we instead just say the abstract idea is pulling reward points from different programs using standard computer technology?

[00:10:42] Speaker 03:
Pulling reward points, that would be equally an abstract idea.

[00:10:45] Speaker 03:
And it is a question of law.

[00:10:47] Speaker 03:
We don't have to adopt the abstract idea as worded by the lower tribunal.

[00:10:51] Speaker 03:
If we want to word it differently, we can.

[00:10:54] Speaker 03:
Why is that not an appropriate view of your claim?

[00:10:59] Speaker 05:
Again, one of the problems with the Alice analysis is that what you just did is what the examiner could have done in the initial examination.

[00:11:12] Speaker 05:
Re-exam panel could have done a post-review.

[00:11:15] Speaker 03:
Maybe we're paid more because we think better.

[00:11:18] Speaker 05:
No, Your Honor, I hate to say it, but it's like beauty is in the eye of the beholder.

[00:11:22] Speaker 05:
I can make an abstract idea out of anything.

[00:11:25] Speaker 03:
Yes, but in this case, we're the beholder, right?

[00:11:28] Speaker 03:
We review it de novo.

[00:11:30] Speaker 03:
We review all of these things de novo.

[00:11:32] Speaker 03:
So whether an examiner thought it to be okay or not is not relevant given that my standard of review is de novo.

[00:11:41] Speaker 05:
Right, but the example that you just gave, Your Honor, just left out a lot of information about what the claim actually says.

[00:11:49] Speaker 05:
The claim talks about two different types of reward points.

[00:11:52] Speaker 03:
Well, and I talked about pooling reward points from different programs.

[00:11:56] Speaker 03:
What does that leave out?

[00:11:57] Speaker 05:
They're not pooled unless they are converted.

[00:11:59] Speaker 05:
So you're leaving out a huge, important step.

[00:12:02] Speaker 05:
So maybe that's part of step two analysis, where we talk about, well, what did we do to transform this into something that's patent eligible?

[00:12:10] Speaker 05:
Then you can talk about the other language in the claim.

[00:12:14] Speaker 05:
And Your Honor, you look at claim one, it goes on for two pages.

[00:12:20] Speaker 05:
There is a lot of detail in that claim.

[00:12:24] Speaker 05:
There's nothing abstract about it in the first place.

[00:12:27] Speaker 05:
But if there is, then you go into the claim and look for what's being done there.

[00:12:32] Speaker 05:
And that's what's not being done as a, here's where you run into,

[00:12:40] Speaker 04:
Do you think, if this were properly described as pooling reward points from different programs, that that would not be an abstract idea?

[00:12:50] Speaker 05:
That's not what the claims say, though, Your Honor.

[00:12:52] Speaker 05:
So, again, it's not.

[00:12:54] Speaker 04:
As you know, that was not my question.

[00:12:56] Speaker 05:
It's a no, because, again, these points are not pooled.

[00:13:00] Speaker 04:
It's a no, I'm sorry.

[00:13:01] Speaker 04:
You think that that would not be an abstract idea, or you just think that's not the one that fits these claims?

[00:13:12] Speaker 05:
It may be, but again, this goes to the problem.

[00:13:15] Speaker 05:
This is why we brought up the fact that we had a post-grant review already.

[00:13:19] Speaker 05:
There are so many ways that different people look at things differently.

[00:13:24] Speaker 03:
You're into your rebuttal time?

[00:13:25] Speaker 03:
Do you want to save any?

[00:13:26] Speaker 05:
Yes, I do, Your Honor.

[00:13:28] Speaker 05:
I'm sorry.

[00:13:29] Speaker 03:
That's okay.

[00:13:30] Speaker 03:
Let's hear from Mr. Vandenberg.

[00:13:36] Speaker 03:
We didn't realize how few people there would be, how far away you are.

[00:13:40] Speaker 03:
If you would like to take off your masks, we are fine with that.

[00:13:43] Speaker 03:
But it's your preferences in the audience.

[00:13:45] Speaker 03:
If you want to take them off, you can.

[00:13:46] Speaker 03:
You don't have to take them off.

[00:13:47] Speaker 03:
Please make your own choices.

[00:13:53] Speaker 02:
I figured that would happen.

[00:13:54] Speaker 02:
Most people don't.

[00:13:56] Speaker 02:
They're hard to wear them.

[00:13:58] Speaker 02:
Okay, Mr. Vandenberg, please proceed.

[00:14:01] Speaker 01:
May it please the Court, I'd like to address the three issues that were just raised and forwarded, the re-examination certificate, the issue of currency, and then the claims.

[00:14:11] Speaker 01:
In terms of the re-examination certificate, one point on that is that

[00:14:15] Speaker 01:
It issued seven years ago in 2015.

[00:14:18] Speaker 01:
That was before most of this court's precedent.

[00:14:21] Speaker 01:
It was before CX Loyalty decision, which we consider to be on all fours.

[00:14:26] Speaker 01:
It was before Electric Power Group, which also is relevant here.

[00:14:29] Speaker 03:
Okay, but even if it had issued a year ago, you wouldn't be agreeing that somehow collateral estoppel applied, would you?

[00:14:36] Speaker 01:
Oh, absolutely not, right.

[00:14:38] Speaker 01:
It could have been issued yesterday and analyzed every single part of this court.

[00:14:42] Speaker 01:
It's still not collateral estoppel because

[00:14:44] Speaker 01:
for obvious reasons.

[00:14:46] Speaker 03:
What are those obvious reasons?

[00:14:47] Speaker 01:
Well, the obvious reason is that Congress presumably had something in mind.

[00:14:51] Speaker 01:
And whether it's one examiner in the original examination or three examiners in a re-examination, still, Congress said that patent is subject to post-grant review by administrative law judges through a very set standard.

[00:15:07] Speaker 01:
And those judges here did their job, whether it was CBM that sunset it or IPR or post-grant review.

[00:15:12] Speaker 01:
That's the whole point.

[00:15:14] Speaker 01:
Congress wanted the PTAB and then this court on review to take a second look at patents and make sure there weren't monopolies out there possibly hindering innovation on abstract ideas.

[00:15:25] Speaker 03:
Well, Mr. Pennington's argument in response would be, well, they did take a second look.

[00:15:31] Speaker 03:
They took a first look and they granted the patent and they took a second look and they allowed the patent again.

[00:15:37] Speaker 03:
This is really a third look.

[00:15:38] Speaker 03:
Do you think Congress intended there to be three, four, five, six looks?

[00:15:41] Speaker 03:
How many looks do you think Congress intended?

[00:15:44] Speaker 01:
At least one look by administrative law judges, and this was the first look by the administrative law judges, the patent judges on the PTAB, and clearly a stop.

[00:15:56] Speaker 01:
The board cannot be stopped by what the examiners do.

[00:15:59] Speaker 01:
The board are not a party, a litigant.

[00:16:02] Speaker 01:
I learned in law school 42 years ago, and in law school not as nice as this, that collateral stop will bar parties, not tribunals.

[00:16:11] Speaker 04:
If in the original application or on the re-exam there had been a rejection and it went to court and the PTO was a party in court, would that change anything?

[00:16:25] Speaker 01:
We would say no, but that still would not collaterally stop American Express, the petitioner who is... No, but I think you said that the board, which is to say the PTO, can't be stopped because it wasn't a party before.

[00:16:39] Speaker 04:
And it's true that that's true in this case.

[00:16:42] Speaker 04:
But it's easy to imagine a case in which the PTO was a party in the judicial proceeding in case number one.

[00:16:52] Speaker 04:
had it been rejected and signature had gone to court, the BTO would have been the other side of that case.

[00:17:03] Speaker 01:
I would submit that still there, there'd be no collateral stopple.

[00:17:07] Speaker 01:
The patent is a public right, although technically the Patent Office is a party.

[00:17:11] Speaker 01:
There would be mutuality.

[00:17:15] Speaker 04:
This has nothing to do with the argument that there's a statutory override in the CBM system.

[00:17:22] Speaker 01:
No, understood.

[00:17:23] Speaker 01:
A government can certainly be collaterally stopped if there are parties, say, to a state litigation or federal litigation.

[00:17:29] Speaker 01:
That is true.

[00:17:29] Speaker 01:
But here, I would argue there would be an exception, because this is a public right.

[00:17:34] Speaker 01:
And the patent office did not really have a controversy.

[00:17:38] Speaker 01:
They did not really have Article III standing.

[00:17:41] Speaker 01:
They were there because they issued the patent.

[00:17:43] Speaker 01:
But it is the public, such as American Express, that has the true controversy.

[00:17:49] Speaker 01:
So I would say the government would not be a stop there.

[00:17:52] Speaker 01:
Also, the re-examination certificate was a superficial analysis.

[00:17:57] Speaker 01:
We submit they did not consider or perhaps have the American Express rewards program that in 1995 did exactly what these claims do, but by telephone.

[00:18:09] Speaker 01:
So American Express allowed a user to exchange American Express reward points, say, for Delta reward points.

[00:18:16] Speaker 00:
That goes to an obviousness question.

[00:18:18] Speaker 00:
That's not an eligibility.

[00:18:20] Speaker 01:
Well, we submit, Your Honor, it goes to both.

[00:18:23] Speaker 01:
It goes to the eligibility because it shows the fact that the same thing was done without a computer shows that this is not an internet-centric or computer-centric alleged invention, which we submit is relevant on the current situation.

[00:18:39] Speaker 04:
Do you think any economic practice that existed at the time of an application

[00:18:46] Speaker 04:
if you just say, do it on a computer, that that creates a 101 problem?

[00:18:50] Speaker 04:
Or is there some significance to the language Alice used about a fundamental economic practice?

[00:18:57] Speaker 01:
We would submit the former.

[00:19:00] Speaker 01:
And the reason is that economic practices are simply inherently intangible.

[00:19:08] Speaker 01:
Here, for instance, reward points are doubly intangible.

[00:19:11] Speaker 01:
They're numbers.

[00:19:13] Speaker 01:
And the numbers represent legal obligations.

[00:19:16] Speaker 01:
So they're doubly abstract.

[00:19:19] Speaker 01:
And whether the same idea, if this idea deserved a Nobel Prize in economics or if this idea was done 200 years ago,

[00:19:29] Speaker 01:
we submit wouldn't matter to that analysis.

[00:19:32] Speaker 01:
Is it essentially something that you could call a mental process, a way of organizing human endeavors, economics, whatever it is, it's not a technological invention.

[00:19:43] Speaker 01:
And this record here is replete with admissions that there was no technological improvement.

[00:19:49] Speaker 00:
What about your friend's argument that this is not currency, and it was called currency?

[00:19:54] Speaker 01:
The first point on that is that the board itself said it doesn't matter if it's called currency.

[00:20:01] Speaker 01:
On the appendix 42, in their opinion, after they determined it was currency, they said, and in any event, it doesn't matter if you call it currency, and they cited electric power group.

[00:20:13] Speaker 01:
in which the court said that the content of the information, the specific content of the information, does not change its nature as information.

[00:20:24] Speaker 01:
That was in the electric power group being analyzed and displayed.

[00:20:29] Speaker 01:
And the board relied on that in this case and said, even if it's not currency, it doesn't matter because you're simply exchanging essentially, not the board's words, one set of numbers for another set of numbers.

[00:20:41] Speaker 01:
In addition, it is a form of currency.

[00:20:44] Speaker 01:
It's not public currency you can go to Europe on, but it is a form of currency, and I invite the Court's attention to the specification at Column 10, Line 20, where it says that the user, quote, basically treat the points as cash consideration, close quote.

[00:21:02] Speaker 01:
Past consideration sounds a lot like currency.

[00:21:05] Speaker 01:
In addition, as the board found, this exchange points can be used to buy and sell products, and there's an exchange rate.

[00:21:14] Speaker 01:
So that's the point on currency.

[00:21:15] Speaker 00:
Can I ask you a question outside of the record, just for my own interest, because I haven't been following it?

[00:21:21] Speaker 00:
The CVM program expired.

[00:21:23] Speaker 01:
And some said it in 2020.

[00:21:24] Speaker 00:
Any discussion, any reason?

[00:21:27] Speaker 00:
Do we have any legislative history that would indicate why it did?

[00:21:30] Speaker 00:
Did somebody think it was a success or did somebody think it wasn't working right or was unnecessary?

[00:21:36] Speaker 00:
Just outside of the record, if you have any information about that.

[00:21:39] Speaker 00:
I'm curious.

[00:21:39] Speaker 01:
Well, I would say there's a branch of government that's not as effective as the judicial branch and there may have been concern that they would not be able to get a new law passed.

[00:21:49] Speaker 01:
to renew the CBM program.

[00:21:52] Speaker 01:
It was initially instituted to have this seven-year sunset, which presumably was a compromise, presumably between financial services, bank lobbyists, and interested legislators.

[00:22:04] Speaker 01:
So they sunsetted it.

[00:22:04] Speaker 01:
But I think the concept of getting any patent law development through Congress is a dicey proposition.

[00:22:11] Speaker 01:
I don't know anything more specific than that.

[00:22:13] Speaker 00:
Thank you.

[00:22:14] Speaker 01:
In terms of the claims, counsel referred to conversion.

[00:22:20] Speaker 01:
Well, the claims do not refer to any conversion.

[00:22:23] Speaker 01:
There's no data structure conversion in these claims.

[00:22:27] Speaker 01:
What the claims essentially are, using our example of Citibank and Delta that we had in our briefs, are exchanging Citibank reward points for Delta reward points and doing it on the web.

[00:22:40] Speaker 01:
The web components here are completely generic.

[00:22:45] Speaker 01:
They admitted to the board there was no argument that there was a technological improvement.

[00:22:50] Speaker 01:
In the blue brief, they concede there was no argument that there was technological improvement.

[00:22:55] Speaker 01:
Column five of the specification says that any type of reward server will do.

[00:23:02] Speaker 01:
Any type of exchange server.

[00:23:03] Speaker 04:
Mr. Pennington may place some emphasis on the predetermined

[00:23:08] Speaker 04:
rate for the implicit conversion?

[00:23:13] Speaker 04:
What do you make of that?

[00:23:15] Speaker 01:
That's a pure abstraction that you get one delta point for one Citibank point.

[00:23:19] Speaker 01:
One could do that in their head, one could do it in pencil and paper.

[00:23:22] Speaker 01:
There's no improvement to computers or to technology or software.

[00:23:27] Speaker 01:
This is not a software patent.

[00:23:28] Speaker 01:
It's not a computer improvement patent.

[00:23:30] Speaker 01:
It's not an end patent.

[00:23:32] Speaker 01:
This is CF's loyalty.

[00:23:34] Speaker 01:
The gist of our argument is that in CX loyalty, the claims were patent and eligible because they merely replaced a human intermediary with generic web components to redeem exchange points.

[00:23:51] Speaker 01:
Here, the claims are patent and eligible because they merely replaced a human intermediary with generic web components to exchange reward points.

[00:24:03] Speaker 01:
It's the same case there.

[00:24:06] Speaker 01:
In CX Loyalty, they noted there was no improvement to the computers.

[00:24:09] Speaker 01:
Here, the record shows that in spades.

[00:24:13] Speaker 01:
And a final point is a pretty trivial point.

[00:24:16] Speaker 01:
The council indicated that these claims go on for two pages.

[00:24:20] Speaker 01:
The claims in Electric Power Group, I believe, were 238 words.

[00:24:24] Speaker 01:
I looked it up once.

[00:24:25] Speaker 01:
But in any event, they were probably longer than these claims here.

[00:24:29] Speaker 01:
Anything further?

[00:24:32] Speaker 01:
No, no.

[00:24:32] Speaker 01:
No questions.

[00:24:33] Speaker 03:
Thank you.

[00:24:35] Speaker 03:
Mr. Pendleton, you have some rebuttal time.

[00:24:42] Speaker 05:
Your Honor, going back to what is your master idea, and also what the role of this court is, when you review what PUCAM did,

[00:24:56] Speaker 05:
Is your role to review what they said and decide whether that was correct or not?

[00:25:03] Speaker 05:
Or do you have the ability to reform what the idea is?

[00:25:08] Speaker 05:
Well, we've certainly done that.

[00:25:10] Speaker 05:
Well, if that's the case, then I will go back to what the PTAB said.

[00:25:15] Speaker 05:
PTAB said that this was an abstract idea of fundamental economic practice of currency

[00:25:21] Speaker 05:
So this is not an argument.

[00:25:24] Speaker 05:
This is what they ruled on.

[00:25:25] Speaker 05:
They said this was a currency exchange.

[00:25:29] Speaker 05:
The PTAB has the ability, and the parties have the ability, to do claim construction.

[00:25:36] Speaker 05:
Did you ask for one here?

[00:25:38] Speaker 05:
They did not, Your Honor.

[00:25:41] Speaker 05:
They could have asked for a construction of a certain currency to equate to reward points.

[00:25:48] Speaker 05:
They did not.

[00:25:50] Speaker 05:
So they left it up to us to point out that these are not reward, that it's not currency, and we pointed to dictionary definitions and just standard practice.

[00:26:04] Speaker 05:
We know what currency is, and reward points are not currency.

[00:26:08] Speaker 05:
They mentioned the MX Rewards Program and how if the

[00:26:16] Speaker 05:
The patent office had had that when they did the post-grant review.

[00:26:20] Speaker 05:
It might have been different, but they had it, Your Honor.

[00:26:23] Speaker 05:
We submitted that in an IDS.

[00:26:25] Speaker 05:
So that rewards program that they deferred to was before the three members of the panel that decided the request for a supplemental examination.

[00:26:36] Speaker 05:
So that was there.

[00:26:39] Speaker 05:
My friend mentioned that reward points are doubly, I'm sorry,

[00:26:45] Speaker 05:
doubly intangible.

[00:26:48] Speaker 05:
That is exactly the opposite of what a currency is.

[00:26:51] Speaker 05:
So he just admitted that reward points can't be currency because currency is not intangible.

[00:27:01] Speaker 05:
It's got a value.

[00:27:02] Speaker 05:
And it's not fixed by the participants in this program.

[00:27:06] Speaker 05:
It's fixed by a separate market.

[00:27:08] Speaker 03:
You're out of time.

[00:27:09] Speaker 03:
Do you have a closing thought?

[00:27:11] Speaker 05:
I close by saying I'm happy to be here.

[00:27:14] Speaker 05:
I've never been to Villanova, and I appreciate your efforts.