[00:00:00] Speaker 04:
Our next case is appeal number 22-1308, Trinity Info Media versus Covalent.

[00:00:10] Speaker 04:
Mr. Hillier, whenever you're ready.

[00:00:12] Speaker 01:
May I please the court?

[00:00:14] Speaker 01:
On behalf of Trinity Info Media LLC, we ask that the court reverse and demand the district court's order

[00:00:23] Speaker 01:
granting covalence rule 12P6 motion for dismissal on the basis that every claim of both two patents in suit are invalid under 35 USC 101.

[00:00:38] Speaker 01:
And we do so for two principal reasons, while acknowledging that there's other requests that we make, including for claim construction, for fact discovery.

[00:00:50] Speaker 01:
I want to start off with the precept that the characterization of these claims was first made by covalent as matching users who gave corresponding answers to a question.

[00:01:04] Speaker 01:
The district court adopted that generic characterization of the claims.

[00:01:09] Speaker 01:
And to the extent that the court ever narrowed its characterization, it only did so by characterizing the claims as collecting information

[00:01:19] Speaker 01:
analyzing it, and displaying results.

[00:01:23] Speaker 01:
Now, that's important for a couple of reasons.

[00:01:25] Speaker 01:
First, because it violates the precept that this court has constantly reinforced, that when conducting a 101 analysis, it is improper to genericize the claims, because in so doing, you're necessarily going to be driving toward an abstract idea conclusion.

[00:01:46] Speaker 01:
And I think it is self-evident that if claim limitations

[00:01:52] Speaker 01:
particularly those that might be new, that might be non-abstract, that might impart benefits over general purpose computing are ignored, then you might as well not conduct the analysis at all.

[00:02:04] Speaker 01:
Because at the end of the day, you're going to be able to support your predetermined conclusion that this is about matching users.

[00:02:11] Speaker 04:
What is your articulation of what the claims are directed to?

[00:02:16] Speaker 04:
I mean, without reading the whole claim, what are they directed to?

[00:02:19] Speaker 01:
The claims are directed to

[00:02:22] Speaker 01:
except creating user profiles, posing questions to a user, and this is the important one, attaching a unique identifier to the answer so that that answer can find its place in a new and novel array of matched servers rather than a single matched server that would have to later be searched so that the matching answers can eventually be found

[00:02:51] Speaker 01:
more efficiently, more adeptly, with quicker speed and efficiency, basically for an infinite number of users.

[00:02:59] Speaker 01:
Now, for most of my time, I'm going to focus on unique identification and multiple match servers.

[00:03:07] Speaker 03:
Do your claims actually require the use of an array?

[00:03:11] Speaker 01:
So claim eight builds in greater hardware, including a match aggregator and match servers.

[00:03:18] Speaker 01:
Claim 1 does not specifically recite those pieces of hardware.

[00:03:23] Speaker 04:
When you refer to Claim 8, which... Oh, I beg your pardon, of the 321 patent.

[00:03:31] Speaker 01:
And in fact, it's the court's analysis of Claim 8 that I think is going to be particularly insightful, in part because even though there's additional components to the system that the complaint and the patent identify

[00:03:47] Speaker 01:
as advances over the prior art that improve efficiency overall, the court still manages to take claim eight and reduce it down into those bromides that I gave you at the top of my argument.

[00:04:01] Speaker 01:
So to further answer your question, Your Honor, unique identifier is recited in claim one.

[00:04:09] Speaker 01:
And then it's a question of claim construction as to whether receiving and storing import

[00:04:16] Speaker 01:
the use of multiple match servers.

[00:04:18] Speaker 01:
That's an open question.

[00:04:20] Speaker 03:
You never proposed a specific claim construction, correct?

[00:04:24] Speaker 01:
Because we never had the opportunity, Your Honor.

[00:04:26] Speaker 01:
In fact, during the oral argument in front of the district court, His Honor asked me what claims I thought required construction.

[00:04:35] Speaker 01:
And I answered that question.

[00:04:37] Speaker 01:
But the motion was granted before we had an opportunity to address it.

[00:04:41] Speaker 02:
What answer did you give?

[00:04:43] Speaker 01:
Your Honor, it's in the briefing.

[00:04:44] Speaker 01:
I could direct your attention to it.

[00:04:46] Speaker 01:
But it certainly included unique identification as well as receiving and storing.

[00:04:51] Speaker 02:
And what would you now say is the proper construction of unique identifier that would have made a difference had the district court construed the term in the way that you proposed?

[00:05:06] Speaker 01:
Your Honor, in order to answer that question, I'd have to turn my attention toward the specification to come up with.

[00:05:12] Speaker 02:
Well, surely you had something in mind.

[00:05:14] Speaker 02:
I mean, you've been using the term unique identifier, which is not self-explanatory, at least not to me.

[00:05:20] Speaker 02:
So why don't you tell us what you think that term means, which presumably would be the way you would want it to be construed.

[00:05:27] Speaker 01:
Loosely stated, Your Honor, I believe it refers to the positioning, the assignment that is given to an answer based on a tabular formula that's in the specification that identifies its position in a match server.

[00:05:43] Speaker 02:
So if the computer tags a particular answer and the tag is unique for that answer, that's enough?

[00:05:53] Speaker 01:
Well, Your Honor, I don't think it's the uniqueness of the answer.

[00:05:55] Speaker 02:
I believe it's the uniqueness of the response, I should have said.

[00:05:59] Speaker 02:
Not that the answer may not be the same answer given, but the uniqueness of party A gives this response.

[00:06:07] Speaker 02:
And that would be what you would tag, right?

[00:06:11] Speaker 01:
I believe it's more than that, Your Honor.

[00:06:13] Speaker 02:
OK, what more?

[00:06:13] Speaker 01:
I believe it's not only the answer itself, but it's based on the user, the answer, and the position in the matched server.

[00:06:21] Speaker 02:
All right.

[00:06:22] Speaker 01:
So that rather, just simply stated, you can have one server and it can fill up with information and you can never need another server because you have the capacity.

[00:06:36] Speaker 01:
Traditionally, if you use a second server, it's for the overflow of the first server.

[00:06:43] Speaker 01:
So that in a matching protocol, you would have to search every answer in that server and then go to the second.

[00:06:50] Speaker 01:
This is a distributed

[00:06:53] Speaker 01:
model, where the unique identifier finds a position in the collection of matched servers so that when the searching is conducted, it can be done instantaneously.

[00:07:04] Speaker 02:
Right, but distributed architecture has been around for a long time, right?

[00:07:08] Speaker 02:
But you didn't invent distributed architecture in this patent.

[00:07:11] Speaker 01:
I didn't invent anything.

[00:07:12] Speaker 01:
I think that's one thing we won't have an argument about.

[00:07:15] Speaker 02:
I'm being tiny-g.

[00:07:19] Speaker 01:
No, Your Honor, but at the same time, in order for me to make an admission about what exists and what doesn't exist, we need the opportunity at the district court level to get more granular about it.

[00:07:29] Speaker 01:
And indeed, one of the things that I can feel your reluctance, I feel that all the way over here.

[00:07:34] Speaker 02:
I'm having trouble getting a handle on the argument if I don't know what it is that you think the district court should have done by way of telling us what the patent is all about.

[00:07:50] Speaker 01:
Trinity is not claiming invented match servers.

[00:07:55] Speaker 01:
The degree to which they've been used for matching protocols is not in the record.

[00:08:00] Speaker 01:
And we take the position that the use of additional match servers in the way that's claimed and described is novel, unique, and advanced over the arc.

[00:08:11] Speaker 02:
How about swiping?

[00:08:14] Speaker 02:
You've referred to swiping as a feature of this invention that falls into the inventive concept category, I take it.

[00:08:23] Speaker 01:
Correct.

[00:08:24] Speaker 02:
But again, you didn't invent swiping, obviously.

[00:08:26] Speaker 02:
Well, I think it's important.

[00:08:28] Speaker 02:
You're not claiming that you invented swiping.

[00:08:30] Speaker 01:
Well, I think it's important to recognize that the priority date of this application is 2010.

[00:08:35] Speaker 02:
Yeah, but the application, the patent that refers to swiping is 2018, right?

[00:08:42] Speaker 02:
The 685?

[00:08:45] Speaker 01:
Your Honor, that application claims priority back to 2010, if memory serves.

[00:08:49] Speaker 04:
But does the specification refer to swiping, or just the claim?

[00:08:52] Speaker 02:
The specification does not refer to swiping.

[00:08:56] Speaker 02:
All that swiping shows up is in the claims, which were new as of 2018.

[00:09:02] Speaker 02:
So your priority date for the claims presumably would be 2018, right?

[00:09:06] Speaker 01:
I will disagree with you.

[00:09:07] Speaker 02:
OK.

[00:09:08] Speaker 02:
Tell me what.

[00:09:08] Speaker 01:
The 685 is a continuation in part that adds additional subject matter, but the written description support for swiping dates back to the priority date of the 321 patent.

[00:09:19] Speaker 02:
Where is the written description?

[00:09:21] Speaker 01:
Your Honor, it's the reference to the use of invention on a handheld device.

[00:09:27] Speaker 01:
I don't have the pin sight in front of me.

[00:09:28] Speaker 02:
Handheld devices go back a good day, but swiping itself.

[00:09:32] Speaker 02:
I believe I'm correcting this, but I may be wrong, so correct me if I am.

[00:09:36] Speaker 02:
I don't think the word swiping appears anywhere in the written description of the 685.

[00:09:42] Speaker 02:
Am I wrong?

[00:09:45] Speaker 01:
No, you're right, Your Honor.

[00:09:46] Speaker 01:
But when the claim was prosecuted in front of the examiner, the written description support that was given was for the recitation of handheld device.

[00:09:56] Speaker 01:
And by the way.

[00:09:57] Speaker 02:
But handheld device does not equal swiping.

[00:10:01] Speaker 01:
We disagree.

[00:10:02] Speaker 02:
You think handheld device necessarily entails swiping?

[00:10:07] Speaker 01:
We believe that one of ordinary skill in the art would recognize that an operation that's part and parcel of a handheld device is swiping.

[00:10:13] Speaker 02:
Even at the earliest times that handheld devices were in existence?

[00:10:19] Speaker 01:
It depends how you define a handheld device, Your Honor.

[00:10:22] Speaker 01:
I mean, a handheld device could be a rotary gun.

[00:10:25] Speaker 04:
So again, this goes to the question originally posed was,

[00:10:29] Speaker 04:
did Trinity invent swiping?

[00:10:31] Speaker 04:
And you're saying Trinity invented swiping because in the patent application in 2010, it refers to handheld devices.

[00:10:38] Speaker 04:
So that means that Trinity invented swiping.

[00:10:42] Speaker 01:
No, Your Honor.

[00:10:43] Speaker 01:
We're not claiming to have invented swiping.

[00:10:47] Speaker 01:
But what I do want to point out, though, is that the district court did this as well, so at the risk of disagreeing with the inquiry.

[00:10:59] Speaker 01:
What we're suggesting is that we had a priority date that supported swiping in connection with a matching protocol.

[00:11:07] Speaker 01:
It's not inventing swiping in a vacuum, which is hugely different.

[00:11:11] Speaker 01:
But I also want to point out that the undue focus on a particular element in isolation, and talking about its inventiveness, betrays the necessity to consider the claim not just as a whole, but as an ordered combination.

[00:11:28] Speaker 01:
And the district court engaged in it.

[00:11:29] Speaker 04:
The only reason why this question is coming up is because you've argued it as an inventive concept.

[00:11:34] Speaker 04:
And I understand you're saying that you're not arguing it on its own, but as an ordered combination with the other elements in the claim.

[00:11:43] Speaker 01:
In a matching protocol, in matching operations, correct.

[00:11:47] Speaker 04:
Well, that's what you're considering, the ordered all of the elements of the claim.

[00:11:51] Speaker 01:
Yeah, and the reason I'm making it.

[00:11:52] Speaker 01:
I apologize.

[00:11:53] Speaker 01:
I didn't mean to talk over your arm.

[00:11:55] Speaker 01:
The only reason I'm pointing that out is because,

[00:11:57] Speaker 01:
the seductive nature of identifying every element and saying, no, no, no, therefore.

[00:12:02] Speaker 03:
Do you have any allegations in the complaint explaining why swiping, it can be as an oral combination, is inventive?

[00:12:10] Speaker 03:
Can you point us to something?

[00:12:11] Speaker 03:
Give me a page site?

[00:12:13] Speaker 03:
Give me something?

[00:12:13] Speaker 01:
Well, Your Honor, we do identify, and I think I can put my finger on it right away, allegations in the complaint

[00:12:25] Speaker 01:
I think it's in the briefing materials, which gives the pin site.

[00:12:30] Speaker 01:
It's on page 24 of our principal brief.

[00:12:33] Speaker 03:
And then maybe if you do me the favor, can you give me what that pin site is?

[00:12:37] Speaker 01:
Certainly it's appendix 78.

[00:12:38] Speaker 01:
Thank you.

[00:12:39] Speaker 01:
Which I believe is the amended complaint.

[00:12:41] Speaker 01:
It would be paragraph 32.

[00:12:43] Speaker 01:
Thank you.

[00:12:47] Speaker 01:
May I continue?

[00:12:50] Speaker 01:
Am I in my rebuttal time?

[00:12:53] Speaker 01:
I guess you are.

[00:12:54] Speaker 04:
Do you see the yellow light?

[00:12:56] Speaker 04:
Yeah, I do.

[00:12:58] Speaker 01:
The point I wanted to add, consistent with my argument that stripping away the claim limitations is going to- Do you want to preserve your rebuttal time?

[00:13:10] Speaker 01:
If the court would indulge me, I promise not to overstay my welcome.

[00:13:16] Speaker 01:
If I could be given one or two minutes, that would be much appreciated.

[00:13:23] Speaker 01:
So the driver behind finding this to be abstract, and indeed under prong two, determining that there's nothing new here, there's no factual disputes as to whether or not it's new, known, or improves functionality, were all those

[00:13:40] Speaker 01:
Those conclusions were supported by the analysis, which essentially walked through each of the claim elements and simply said, those are all abstract.

[00:13:50] Speaker 01:
And in fact, the total analysis of claim one of the 3-2 patent is at appendix 15, which simply states page 15 of the order and simply states, I suppose it starts on line 9,

[00:14:07] Speaker 01:
Limiting the abstract idea, that abstract idea, to the particular environment of the claim processor, memory, unique identifier, receiving and storing, which in my view would also include the match servers, in the memory do not make claim one less abstract.

[00:14:28] Speaker 01:
Now there's case citations there, but there's no other explanation as to why the allegations in the complaint, which say otherwise,

[00:14:36] Speaker 01:
can be ignored.

[00:14:38] Speaker 03:
But aren't those allegations that you point us to pretty conclusory?

[00:14:42] Speaker 03:
Like, do you have something in the allegations that's not so conclusory?

[00:14:47] Speaker 01:
Well, Your Honor, I believe that the pin sites not only include summaries of whether something was either new or includes

[00:15:01] Speaker 01:
Advances the art in terms of functionality etc, but also included citations to the specification If you want to talk about a particular limitation we could we could do that But I was just you pointed me to paragraph 32.

[00:15:14] Speaker 03:
I'm just kind of working with you on this right okay We were asking about swiping and the like and I was asking for us if something in the

[00:15:22] Speaker 03:
complaint materials to tell us what would be inventive, whether it's as an ordered combination or individually.

[00:15:28] Speaker 03:
You gave me paragraph 32, which to me looked pretty conclusory.

[00:15:31] Speaker 03:
I was just asking if there was anything less conclusory you could point me to.

[00:15:35] Speaker 01:
That's the best citation I can give you for swiping.

[00:15:38] Speaker 01:
There's probably greater specificity as it relates to unique identification and match servers, because that's sort of at the hallmark of what's different.

[00:15:49] Speaker 03:
That answers my question.

[00:15:51] Speaker 04:
Thank you.

[00:15:52] Speaker 04:
OK.

[00:15:53] Speaker 04:
I think you're out of time.

[00:15:54] Speaker 04:
OK, thank you, Your Honor.

[00:15:55] Speaker 04:
We'll hear from Mr. Dietrich now.

[00:15:57] Speaker 00:
Very well.

[00:16:00] Speaker 00:
Good morning, Your Honors.

[00:16:01] Speaker 00:
May it please the Court, Tom Dietrich, MacArthur Law, PC, on behalf of the Luchelli Covalent Inc.

[00:16:08] Speaker 00:
First, going back to Judge Cunningham's question or statement that the allegations are pretty conclusory in the complaint, you're very correct.

[00:16:16] Speaker 00:
They are conclusory.

[00:16:19] Speaker 00:
about as conclusory as it could get.

[00:16:22] Speaker 00:
These are the kind of allegations that have been rejected in other cases that have found that they are simply legal conclusions, couch to satchel allegations.

[00:16:34] Speaker 00:
and have found that the district court did not need to rely on those basic legal conclusions in analyzing a motion to dismiss under Rule 12B6.

[00:16:46] Speaker 00:
Some of those cases include Dropbox versus Synchronous, Simeo, and Boom payments.

[00:16:53] Speaker 00:
In all of those, the district court was found to have properly disregarded unsupported legal conclusions of the type raised by Trinity in its complaint

[00:17:04] Speaker 00:
And so it is covalence position that, yes, the allegations are extremely conclusory, but there actually are no additional factual allegations regarding unique identification or match servers.

[00:17:19] Speaker 00:
And the identification of swiping merely just states swiping insists, and that's it.

[00:17:27] Speaker 00:
So going to Trinity's

[00:17:34] Speaker 00:
argument that the district court overly simplified the claims of these patents.

[00:17:39] Speaker 00:
Covalence position is that it's not correct or accurate.

[00:17:43] Speaker 00:
The district court carefully analyzed the claims, and it did provide a more simplified description of the claims, as has been done and approved of in many other cases reviewed by this court.

[00:17:55] Speaker 00:
The sales fin comes to mind, where

[00:18:00] Speaker 00:
the district court properly simplified the claim language into something that was more easily definable.

[00:18:10] Speaker 00:
And here, it was no different.

[00:18:14] Speaker 00:
The claims at issue all cover the abstract idea of matchmaking.

[00:18:22] Speaker 00:
That is, matching people who gave corresponding answers to a question.

[00:18:26] Speaker 00:
That's a mental process.

[00:18:29] Speaker 04:
How do you respond to the argument that there is an inventive concept here, it's assigning a unique identifier to each one of the answers, which then makes matching so much easier?

[00:18:43] Speaker 00:
I would respond a couple different ways.

[00:18:48] Speaker 00:
The unique identifier is

[00:18:50] Speaker 00:
Undefined it could be the question number question number one assigned to question number one question number two assigned to question number two Your claim is so broad that's not really what's what about a claim eight which was identified?

[00:19:07] Speaker 00:
And

[00:19:14] Speaker 00:
As a matter of fact, in its complaint, Trinity says that the unique identifier that was used by Covalent was simply the answer that the question referred to a female.

[00:19:29] Speaker 00:
That somebody was selecting a female and just female was the unique identifier is what's alleged by Trinity.

[00:19:35] Speaker 04:
You're saying in terms of the infringement allegations?

[00:19:37] Speaker 00:
In terms of the infringement allegations, correct.

[00:19:40] Speaker 00:
So with regard to claim eight, it recites distributed computing, as Judge Bryson pointed out, which Trinity has not alleged to have invented that process.

[00:19:53] Speaker 00:
And it simply conducts the abstract comparison on a subset of users on one server and a subset of users on another server and combines them.

[00:20:09] Speaker 00:
Distributed computing focus does nothing more, and I think we're more or less focusing on step two of the ALICE analysis here.

[00:20:18] Speaker 00:
The distributed computing does no more than simply speed up or potentially make more efficient the matchmaking process.

[00:20:30] Speaker 00:
It is using conventional computer technology that Trinity has not alleged it invented.

[00:20:36] Speaker 00:
to make the abstract process go faster.

[00:20:40] Speaker 00:
That is not an inventive concept.

[00:20:44] Speaker 00:
It's simply using computers as a tool in the way that they have always been used to speed up a mental process.

[00:20:55] Speaker 00:
So going back to

[00:21:00] Speaker 00:
Trinity didn't really address step one in its moral argument.

[00:21:06] Speaker 00:
In its briefing, it did and claims that the claims are not abstract.

[00:21:10] Speaker 00:
I think that a review of the claims makes clear that they are all directed to this idea of matching users based on their corresponding answers to a question.

[00:21:21] Speaker 04:
Do you agree with the district court's articulation of what the claims are directed to?

[00:21:25] Speaker 00:
Yes.

[00:21:26] Speaker 00:
Covalent does agree.

[00:21:27] Speaker 02:
We've had, obviously, a lot of 101 cases over the last eight years, at least, since Alice, maybe 10 since Mayo.

[00:21:40] Speaker 02:
What do you think is the most closely analogous case to this one among the cases that we have decided?

[00:21:48] Speaker 00:
Your Honor, I think there's two cases that come to mind as being closely analogous, Intellectual Ventures versus Capital One.

[00:21:55] Speaker 00:
IV1 versus Capital One.

[00:22:02] Speaker 00:
It actually involved some of the same types of things that Trinity is claiming to have invented, such as real-time customization of web pages, as well as adding unique identifications to content.

[00:22:22] Speaker 02:
And so I think that's... Unique identification was in the Capital One case?

[00:22:28] Speaker 00:
I believe it was in the Intellectual Ventures versus Capital One case.

[00:22:32] Speaker 00:
And then the second case that comes to mind is Personal Web versus Google, a more recent case from 2021.

[00:22:39] Speaker 00:
Oh, actually, Personal Web contains a unique identification based on content.

[00:22:47] Speaker 00:
and intellectual ventures was involving tailored advertising.

[00:22:53] Speaker 00:
So those are the two cases that come to mind.

[00:22:57] Speaker 00:
I think that just briefly on the first step

[00:23:02] Speaker 00:
It's pretty clear looking at the claims that these are the types of claims that are collecting data, analyzing it, and providing a result, as has been held unfathomable in electric power group.

[00:23:14] Speaker 00:
SAP versus Investpick is also on point.

[00:23:19] Speaker 00:
Going to- SAP, did you say?

[00:23:21] Speaker 00:
SAP, yes.

[00:23:23] Speaker 00:
I'm going to.

[00:23:27] Speaker 03:
We were talking about claim construction he suggested the district court cut him off and offer any construction you just tell me a little bit.

[00:23:37] Speaker 00:
Yes.

[00:23:42] Speaker 00:
In the district court, the most that Trinity did was, during the hearing, toss off a couple terms that Trinity believed should be construed.

[00:23:54] Speaker 00:
It didn't provide any explanation of why those particular terms should be construed.

[00:24:03] Speaker 04:
particular constructions?

[00:24:04] Speaker 00:
They did not.

[00:24:05] Speaker 04:
Did the district court say, I don't want to hear claim construction right now?

[00:24:10] Speaker 00:
No, the district court did not say anything along those lines.

[00:24:13] Speaker 00:
Trinity simply tossed off some terms and provided no explanation of why those terms should be construed or how they should be construed and how that construction would help.

[00:24:26] Speaker 00:
in the Section 101 analysis.

[00:24:28] Speaker 00:
And that was even, we were given the opportunity for supplemental briefing after the hearing on the motion to dismiss.

[00:24:35] Speaker 00:
We, a week after the hearing, filed a five-page brief on other issues raised at the hearing.

[00:24:42] Speaker 00:
And yet Trinity still, to this day, has never provided claim construction and why that claim construction would be helpful to analyze the issues.

[00:24:51] Speaker 00:
And there are cases of Simeo and Dropbox versus Synchronous that both address this issue of the patentee's failure to actually provide some substantive claim construction.

[00:25:05] Speaker 00:
So no, I don't think there is any issue that the district court missed regarding claim construction.

[00:25:11] Speaker 00:
And I don't think that would have changed the analysis either way.

[00:25:16] Speaker 02:
It wasn't clear to me from the record, but did Judge Holcomb provide the parties with a tentative ruling in advance?

[00:25:24] Speaker 02:
That's sometimes done in Los Angeles.

[00:25:26] Speaker 00:
Yes, he did.

[00:25:27] Speaker 02:
I got the flavor that that had been.

[00:25:29] Speaker 02:
And that was provided to the parties in advance of the hearing?

[00:25:33] Speaker 00:
Correct.

[00:25:33] Speaker 00:
OK.

[00:25:37] Speaker 00:
So I think that this board, from its questions, has a handle on,

[00:25:44] Speaker 00:
Step one, I think that it's an abstract process.

[00:25:47] Speaker 00:
Step two, looking at the claims, many of the assertions are not even included in the claims as to what constitutes an inventive concept.

[00:25:57] Speaker 00:
And particularly with regard to

[00:26:05] Speaker 00:
With regard to swiping, the issue raised before, I believe it was Judge Bryson, you were on point there saying that the specification of the 685 patent doesn't contain the word swiping.

[00:26:16] Speaker 00:
It doesn't contain any description of swiping.

[00:26:18] Speaker 00:
It contains nothing about swiping.

[00:26:20] Speaker 00:
Trinity alleged at the hearing they relied on the

[00:26:25] Speaker 00:
simple definition handheld device to incorporate that term into the limitation.

[00:26:30] Speaker 00:
And Mr. Hillier stated that swiping was considered to be part and parcel of using a handheld device.

[00:26:39] Speaker 00:
Well, it's not going to provide an inventive concept.

[00:26:43] Speaker 00:
when it is apparently so well known that it's just considered part of using a handheld device.

[00:26:49] Speaker 00:
At most, that is insignificant post-solution activity added on to the end of an abstract process.

[00:26:56] Speaker 00:
And it's not sufficient to transform that abstract process into a patentable invention.

[00:27:01] Speaker 00:
Unless the court has any other questions.

[00:27:05] Speaker 04:
OK.

[00:27:05] Speaker 04:
Thank you.

[00:27:06] Speaker 04:
Thank you.

[00:27:08] Speaker 04:
Mr. Hillier, you are out of time, but I will give you two minutes for rebuttal.

[00:27:18] Speaker 01:
Thank you, Your Honor.

[00:27:18] Speaker 01:
I appreciate it.

[00:27:19] Speaker 01:
I'll use it wisely.

[00:27:19] Speaker 01:
I just want to direct the Court's attention to the district court's treatment of Claim 8, which I think we can all agree has greater recited specificity than Claim 1 of the 321 patent.

[00:27:32] Speaker 01:
And I'm at appendix 20, which is the district court's ruling.

[00:27:36] Speaker 01:
And it's actually also page 20 of the order, but it's appendix 20.

[00:27:41] Speaker 01:
And the court refers to the specifics in the specification concerning the use of multiple match servers.

[00:27:50] Speaker 01:
The court indicates the specification of the 321 patent discloses that using a plurality of match servers

[00:27:57] Speaker 01:
would allow the system to quickly connect the users based on their similarities.

[00:28:01] Speaker 01:
The court continues.

[00:28:03] Speaker 01:
By using the divide and conquer design, the system can scale to a nearly unlimited number of members and polls.

[00:28:10] Speaker 01:
Thus, the invention described in the specification purports to improve that matching process through the use of multiple match servers in parallel as opposed to a single or sequential set of match servers.

[00:28:22] Speaker 01:
I'd ask the court to look at the opposing page, page 21, line 9.

[00:28:28] Speaker 01:
The court rejects Trinity's argument that the court must accept its allegations that the asserted claims are directed to the improvement of general purpose computing and advances to matching protocols.

[00:28:39] Speaker 01:
It's difficult to imagine how Trinity could have given greater specificity coupled with, in isolation, what's a generic statement.

[00:28:47] Speaker 01:
But the reason the statement about improvement to general purpose computing was made in advance of the matching calls was in light of the explanations provided in the specification.

[00:28:55] Speaker 01:
The last thing I want to just touch base on is the supplemental authority that we submitted several days ago by letter to the clerk pursuant to federal rule of appellate procedure 28J.

[00:29:08] Speaker 01:
This is a fairly recent decision issued by this court called Cooperative Entertainment.

[00:29:16] Speaker 01:
I think it's on all fours with respect to this case in as much as it relates to prong two.

[00:29:21] Speaker 01:
And the court calls out a number of things that contradict covalence arguments, one of which is that something can't be useful.

[00:29:29] Speaker 01:
Improvements to computer networks can't be patentable if the network is comprised of standard computing equipment, putting to this decision a lot.

[00:29:37] Speaker 04:
You are out of time.

[00:29:38] Speaker 04:
OK, thank you, Your Honor.

[00:29:39] Speaker 01:
We appreciate it.

[00:29:40] Speaker 01:
Thank you for your time.

[00:29:41] Speaker 04:
Thank you very much for your argument.

[00:29:44] Speaker 04:
The case will be submitted on the brief.