[00:00:02] Speaker 01:
Our final case for argument today is 21-1990, Worlds versus Activision Blizzard.

[00:00:49] Speaker 01:
Mr. Helge, please proceed.

[00:00:51] Speaker 00:
Am I saying your name right?

[00:00:52] Speaker 00:
Yes, Your Honor.

[00:01:11] Speaker 00:
Good afternoon, Judge Moore, Judge Chen, Judge Hughes.

[00:01:13] Speaker 00:
May it please the court?

[00:01:15] Speaker 00:
In 1995, while developing the World's Chat virtual world program, worlds engineers recognized that conventional network architectures for virtual worlds lacked one critical feature, and that was scalability.

[00:01:32] Speaker 00:
What the world's engineers needed to do and what they did do was to develop a novel client server architecture with scalability.

[00:01:40] Speaker 00:
And what I mean by scalability is the ability to handle

[00:01:45] Speaker 03:
additional users a greater population in the virtual world and they achieved this by Incorporating features that had not been done before is it claim for that we're looking at yes, your honor claim for the 695 just read claim for I Understand you want to read it in the context of the patent in which it resides and I understand that if you were to read claim for by itself It reads like

[00:02:14] Speaker 03:
the client receiving less than all available information.

[00:02:19] Speaker 03:
And then step two, the client itself filtering out some of that received information to be displayed.

[00:02:29] Speaker 03:
And just in the body of the claim itself, there doesn't seem to be any clues as to this scalable architecture or some of these other

[00:02:44] Speaker 03:
technical sounding advantages to preserving bandwidth on this end or working within limited capacity on the other end.

[00:02:58] Speaker 03:
The claim itself as written, I mean, maybe you've got other claims that provide those kinds of limitations, but this claim looks rather broad and

[00:03:09] Speaker 03:
the filtering done on the server side and the client side could be done for any reason, any purpose, beyond the particular intentions that are disclosed in the specification.

[00:03:23] Speaker 03:
And so I guess that's my concern with this claim, is that it's a little on the naked side, it's a little disassociated from all of the disclosure that you have in the specification.

[00:03:37] Speaker 00:
Well, Your Honor, I think there are a few points I'd like to make in response to that.

[00:03:40] Speaker 00:
First of all, of course, claim four should be read in the context of claim one as well.

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And claim four is a subset of step one B. It's a dependent claim, of course, and deals with step one B, which is determining from the received positions a set of the other user's avatars that are to be displayed to the first user.

[00:04:01] Speaker 00:
But I think perhaps more what Your Honor is going at is

[00:04:07] Speaker 00:
There's obviously a question of whether claim four, obviously read in view of claim one, is directed to an abstract idea, or whether it is directed to, as Judge Hughes wrote in Engvish, whether it's directed to a computer-based solution to a computer-based problem that improves the workings of a network.

[00:04:27] Speaker 00:
And if we were to get to step two, Your Honor, if you were to conclude that

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In fact, claim four is directed to the abstract idea of filtering.

[00:04:34] Speaker 00:
We then have Bascom, which is a direct corollary to this case where we have the importance, the recognized importance of where the filtering occurs and also the ability to... Yes, but that was evidence in that case.

[00:04:46] Speaker 01:
That patent expressly disclosed the novelty of, I don't remember if it occurred at the ISP,

[00:04:52] Speaker 01:
service provider, or not the ISP service provider, I don't remember which one it was, but the specification itself delineated the novelty of the location, just like in my case in Thales, the location of the sensors.

[00:05:07] Speaker 01:
I don't see anything here.

[00:05:09] Speaker 01:
You've got a claim to nothing but client-side filtering.

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I don't see any evidence in this case that suggests that the location of this filtering, i.e.

[00:05:18] Speaker 01:
doing it on the client side, has some degree of

[00:05:22] Speaker 01:
technological advance or novelty to it.

[00:05:25] Speaker 00:
Your Honor, certainly this was novel.

[00:05:28] Speaker 01:
You can say so, but that doesn't make it evidence.

[00:05:30] Speaker 00:
Of course, Your Honor, and what I'd like to do is point to... And nor does the patent say it.

[00:05:34] Speaker 00:
I would beg to differ, Your Honor.

[00:05:35] Speaker 00:
There is... Okay, where?

[00:05:36] Speaker 01:
Tell me column and line.

[00:05:37] Speaker 00:
Certainly.

[00:05:38] Speaker 00:
So what I would focus on, and we pointed to this on Appendix Page, well, this is Appendix Page 1351 of our... Column and line of the patent, please.

[00:05:45] Speaker 00:
Yes, Your Honor.

[00:05:46] Speaker 00:
So Column 3, lines 41 to 44, and this is the novelty of the server-side filtering.

[00:05:53] Speaker 01:
Yes, but this claim isn't server-side filtering.

[00:05:55] Speaker 00:
Correct, Your Honor, although it includes it through its dependency claim.

[00:06:02] Speaker 01:
than all of the other user's avatars from the server process.

[00:06:06] Speaker 01:
That doesn't describe or claim any particular mechanism for server-side filtering.

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It's just saying you receive less than everything from the server.

[00:06:16] Speaker 01:
It could have actually been done before it even got to the server.

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It could have been done by the person who uploaded it to the server.

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That claim limitation does not require server-side filtering.

[00:06:26] Speaker 00:
In that case, Your Honor, what I'd like to do is direct you.

[00:06:28] Speaker 00:
We're still on appendix page 1351 of our opposition to the summary judgment motion.

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We look to column five, lines 33 to 35 first.

[00:06:38] Speaker 01:
Column five, lines 33 to 35, okay.

[00:06:46] Speaker 00:
So what it says here, whether another avatar is in range is determined, it's a crowd control function, it says, which is needed in some cases to ensure that neither client A nor user A, which is the user using the computer, get overwhelmed by the crowds of avatars likely to occur in a popular virtual world.

[00:07:05] Speaker 00:
And then at the bottom of that column, your honor,

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There's also a discussion of other ways.

[00:07:10] Speaker 00:
Now, we claim specifically the max number filtering, which is discussed really... Yes, but this sentence doesn't say anything.

[00:07:17] Speaker 01:
This sentence does not say what you just claimed.

[00:07:20] Speaker 01:
You claim this case is like BASCOM.

[00:07:22] Speaker 01:
I said BASCOM had evidence directly in the patent that the location of the filtering was novel.

[00:07:28] Speaker 01:
It had never been done at that location, and doing it at that location provided certain advantages.

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I don't see anything in this patent like that.

[00:07:37] Speaker 01:
And what you just pointed me to just says, hey, it might be good not to have the user be overwhelmed.

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It does not say client-side filtering is novel, it is new, and it has the following advantages.

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Your Honor, if I can point to any evidence, and I'm hesitant to get into this because our view specifically is that the vacated IPR decisions that Activision relied upon below are irrelevant to the questions.

[00:08:05] Speaker 01:
All of the IPR decisions below are irrelevant.

[00:08:08] Speaker 00:
Fair enough, Your Honor.

[00:08:09] Speaker 00:
Then I won't get into my point.

[00:08:11] Speaker 00:
But it is important that Claim4 has survived in the sense that... You know what?

[00:08:16] Speaker 01:
Every patent that comes in front of us, guess what?

[00:08:19] Speaker 01:
Was issued by the PTO.

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That's true, Your Honor.

[00:08:21] Speaker 01:
Every single one of them.

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Do you think that's a factor that I should take into account when assessing whether a claim is eligible or not?

[00:08:27] Speaker 00:
No, Your Honor.

[00:08:28] Speaker 00:
Although I think that there is evidence.

[00:08:30] Speaker 01:
Again, I would submit that... Because those IPRs, by the way, didn't decide eligibility either, did they?

[00:08:35] Speaker 00:
They didn't, Your Honor.

[00:08:36] Speaker 00:
Absolutely.

[00:08:36] Speaker 01:
Right.

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So I don't see that they have any bearing whatsoever on this case.

[00:08:39] Speaker 00:
Fair enough, Your Honor.

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But I would submit, again, the fact that the client is performing the filtering while the client is

[00:08:47] Speaker 00:
providing this crowd control function which is needed in some cases they're sure it doesn't get overwhelmed.

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That's telling us that the client side it's important to have control over what the client has to process.

[00:08:58] Speaker 01:
It's saying there's an advantage to having crowd control.

[00:09:03] Speaker 01:
It doesn't say that that is as technological innovation in any way.

[00:09:07] Speaker 01:
It doesn't have what many of these patents do

[00:09:10] Speaker 01:
where they lay out the prior art and explain how this, in ENFISH, new data structure, new data structure achieves the following advantages and go on to explain how this data structure didn't appear in the prior art.

[00:09:24] Speaker 01:
We don't have anything like that in this patent.

[00:09:26] Speaker 00:
Your Honor, again, I would respectfully disagree.

[00:09:27] Speaker 00:
From column one to column two, there is discussion of background system.

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The conventional client server architecture discussed in the background did not have any filtering either at the server side or the client side.

[00:09:39] Speaker 00:
We get into this.

[00:09:40] Speaker 00:
Admittedly, there's a little bit of discussion of how the server having to manage a number of messages.

[00:09:50] Speaker 00:
But there is no client side filtering discussed in the background of the invention with the client server.

[00:09:56] Speaker 01:
So you think that the patent's failure to discuss the novelty of something or discuss it at all should be somehow a presumption that it didn't exist in the prior art and is therefore novel?

[00:10:08] Speaker 00:
Oh, Your Honor, I think that's exactly right.

[00:10:10] Speaker 03:
Here with client server... I'm just trying to understand.

[00:10:13] Speaker 03:
Are you suggesting that this inventor is the first one to have invented the idea of a client computer doing any kind of filtering of information?

[00:10:25] Speaker 00:
Not filtering of information in the broad sense, Your Honor, but I think there's another important point here that we haven't really delved into, which is

[00:10:34] Speaker 00:
Traditionally, let's talk about board games very briefly.

[00:10:36] Speaker 00:
Monopoly had, I believe in 1937, eight pieces that it came with.

[00:10:40] Speaker 00:
And you could limit the players in Monopoly to eight pieces.

[00:10:45] Speaker 00:
That's not what the world's invention is.

[00:10:47] Speaker 00:
World's invention is not taking this idea that beyond eight pieces,

[00:10:52] Speaker 00:
the ninth through infinity players are filtered out of the game.

[00:10:57] Speaker 00:
World's Invention applies filtering in locations that I think the specification does explain as being important at both service side and client side to preserve bandwidth to handle the avoidance of overwhelming a client

[00:11:11] Speaker 00:
device, but it's doing those filtering operations without filtering any players out of the game.

[00:11:17] Speaker 00:
It doesn't have a game limit.

[00:11:18] Speaker 00:
What Activision would want your honors to believe is that Worlds invented a max limit for the virtual world, and it didn't do that.

[00:11:26] Speaker 00:
It didn't come in and say, beyond X players, you don't get to play.

[00:11:31] Speaker 00:
That would be the restaurant capacity limit or the elevator capacity limit that Activision argued to the district court below and the explanation that the district court accepted.

[00:11:40] Speaker 00:
But that's not what happens here.

[00:11:41] Speaker 00:
In this game, there are filtering operations in step 1B occurring at the server side.

[00:11:47] Speaker 03:
I understand the game, but we're limited to looking at your claim.

[00:11:53] Speaker 00:
Certainly, Your Honor.

[00:11:54] Speaker 03:
And the claim still is just ultimately filtering information on the client side.

[00:12:01] Speaker 03:
And that isn't even restricted to limiting information displayed on the client side to protect the client computer from being overwhelmed.

[00:12:14] Speaker 03:
In fact, your specification at column five

[00:12:17] Speaker 03:
says one reason for setting n prime less than n is where client 60 is executed by a computer with less computing power than an average machine.

[00:12:27] Speaker 03:
So your own disclosure says that's just one possible reason for why you would do this comparison and threshold.

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and limitation on the kinds of information you're ultimately going to display on the monitor.

[00:12:43] Speaker 03:
And so, therefore, when we go back to your claim and it just says, you know, do this comparison and filtering, we can't even say at this point in time that that claim is limited to this specific context of trying to protect an otherwise overwhelmed client machine.

[00:13:05] Speaker 00:
So, Your Honor,

[00:13:07] Speaker 03:
At least not this claim.

[00:13:08] Speaker 03:
Maybe you've got some other claims that are good.

[00:13:10] Speaker 03:
I don't know.

[00:13:11] Speaker 00:
Well, Your Honor, in terms of the max number, the idea that there's a max number, determining a maximum number of the other user's avatar is to be displayed.

[00:13:18] Speaker 03:
One reason for that, according to your own specifications, is to protect the computer because of its limited computing power.

[00:13:29] Speaker 03:
Yes, Your Honor.

[00:13:30] Speaker 03:
I mean, the inference is that there are other reasons as well.

[00:13:35] Speaker 03:
There's all kinds of reasons why you might want to have this kind of limit that have nothing to do with limited computing power of the client.

[00:13:46] Speaker 00:
So your honor, I think I need to step back because I know my time is getting short.

[00:13:48] Speaker 00:
I want to get to the step two issue briefly.

[00:13:52] Speaker 00:
We have in this situation, we have

[00:13:54] Speaker 00:
Location based filtering we have the ability to customize the maximum number for each client There's no been no finding it by the court that every user has to have the same maximum number This case comes to you on a summary judgment motion that all of that I get where you're going but all of that those things you're talking about none of that's in the claim is it The importance honor Do you mean no the how you do any of that none of that's in the claim?

[00:14:24] Speaker 00:
Well, there is a comparing step in 4B3 comparing this actual number that gets received by the client with the max number, Your Honor.

[00:14:32] Speaker 04:
But it's not done for any specific purpose.

[00:14:35] Speaker 04:
It's just the general idea of filtering based upon these numbers.

[00:14:40] Speaker 04:
We have to look elsewhere for how to do it, why to do it, when to do it, and things like that.

[00:14:47] Speaker 00:
So Your Honor, I think that gets me to my point, which is on step two, because there are factual inquiries that are needed, and this case comes to you on a summary judgment motion, the district court was required to look at the evidence in the light most favorable to worlds.

[00:15:01] Speaker 00:
It didn't do so.

[00:15:02] Speaker 00:
It didn't look at evidence in our opinion.

[00:15:05] Speaker 01:
What evidence?

[00:15:07] Speaker 00:
Well, Your Honor, that's a great question, because Activision was required to present evidence on step two of well-known routine conventional features.

[00:15:16] Speaker 00:
Activision now, their main evidence was IPR decisions, vacated IPR decisions by this court.

[00:15:21] Speaker 00:
They then have backed off in the red brief and said it's just the claims.

[00:15:24] Speaker 00:
The claims themselves are the evidence.

[00:15:27] Speaker 00:
The counter to that is that World submitted contemporary articles from 1995 that talked about the novelty of the World's chat program discussed in our specification.

[00:15:36] Speaker 00:
That evidence, the specification, should have been viewed in the light most favorable to World.

[00:15:41] Speaker 00:
And the court didn't do that.

[00:15:41] Speaker 00:
I know I'm down to about 30 seconds, so I'll reserve the last few seconds unless your honors have immediate questions.

[00:15:46] Speaker 01:
No, Mr. Prussia, please.

[00:16:12] Speaker 02:
My name is Kevin Prussia, and along with my colleague, Claire Specht, I represent the appellees.

[00:16:20] Speaker 02:
Now, much of what we just heard from Worrall's with respect to scalability and alleged improvements with respect to bandwidth and network capacity, as Judge Chen put it, that is disassociated and, I would say, untethered from the claims.

[00:16:34] Speaker 02:
We know we're supposed to start with the claims, and that should be our focus under the 101 analysis.

[00:16:39] Speaker 02:
And the claim here, all it requires is receiving less than all user positions from the server.

[00:16:47] Speaker 02:
As Chief Judge Moore put it, it doesn't even require the server to make that determination itself.

[00:16:53] Speaker 02:
It then requires the client to determine what to display from those positions based on making a comparison between two values and a maximum capacity.

[00:17:04] Speaker 02:
The claim doesn't tell you how to determine the maximum number of users.

[00:17:08] Speaker 02:
The claim doesn't provide some new protocol to determine the maximum number of users.

[00:17:13] Speaker 02:
No new data structure is required by the claims or described in the specification for that matter.

[00:17:19] Speaker 02:
The claim does nothing more than take the idea, this concept of a maximum capacity, and apply it in the context of a computer.

[00:17:29] Speaker 02:
That is basic filtering.

[00:17:31] Speaker 02:
It's the kind of filtering that this court has recognized in cases like Bascom, which I know my friend wants to marry himself to, but in lots of other cases.

[00:17:40] Speaker 02:
This basic idea of, and I would even say it's fairly filtering, but we would say that it is at some level of generality.

[00:17:48] Speaker 02:
some aspect of filtering that's occurring at the client side.

[00:17:52] Speaker 04:
Can I just ask you, let's say, assume I agree with you that this claim language just is too abstract and it doesn't tell you anything about it.

[00:18:01] Speaker 04:
But also assume that I think they really probably have invented something here in recognizing a system architecture that allows people all over the world to play in one game using a variety of types of different devices that have different capacities.

[00:18:18] Speaker 04:
How would they have written a claim that protected that in a sufficient way?

[00:18:25] Speaker 04:
Well, and there, because it seems like if you start putting in very, very specifics about different types of devices or things like that, or somebody just invents a new device or varies a parameter somewhat, then they're not going to be infringing anymore.

[00:18:40] Speaker 04:
I struggle in this kind of software thing about how you would describe what I think probably is an invention, but is maybe not expressed in the claims.

[00:18:49] Speaker 02:
A couple things, Judge Hughes.

[00:18:50] Speaker 02:
I'd say, one, the plaintiff patentee in a case like this could include functional language limitations that are directed towards the alleged benefits that my friend is describing in terms of scalability and the like.

[00:19:03] Speaker 02:
There are cases like Bascom, for example, where even though it is an abstract idea, there is detailed disclosure and specification about the conventional way of doing things.

[00:19:12] Speaker 02:
And even though it reads on

[00:19:14] Speaker 02:
conventional computer components and conventional computer functions.

[00:19:17] Speaker 02:
The ordering of the process itself is described clearly in the specification as being non-conventional.

[00:19:23] Speaker 02:
Those are just two examples of things that a plaintiff patentee in a case like this could have done.

[00:19:29] Speaker 02:
to take the abstract idea into something that is more meaningful.

[00:19:33] Speaker 02:
And that's important in a case like this, Your Honors, because although my friend is talking about benefits of scalability and it being something that is undergirding this invention, that is not consistent with the claims.

[00:19:47] Speaker 02:
It's also not consistent with some of the positions that they took in this case, for example.

[00:19:51] Speaker 02:
One of their infringement assertions, which we

[00:19:54] Speaker 02:
described that page 446 of the appendix read on a situation where a user actually left the game and they alleged that to be an act of infringing.

[00:20:05] Speaker 02:
So that's not scalability, that's just someone leaving the game.

[00:20:09] Speaker 02:
So that's why it's really important in a case like this to start with the claims and look to see whether there is in fact something in the specification that ties these alleged sort of benefits of scalability and the like to what is actually

[00:20:21] Speaker 02:
So as Chief Judge Moore recognized, this case is not a baston.

[00:20:25] Speaker 02:
This is more like a two-way media, where the plaintiff patentee is asserting, or there's no dispute between the parties.

[00:20:32] Speaker 02:
We all agree that on step two, what's described in the claims here are conventional computer components, conventional computer functions.

[00:20:41] Speaker 02:
The only dispute between the parties on step two is whether there's something about the ordered combination that's non-conventional.

[00:20:48] Speaker 02:
And as in two-way media, there's

[00:20:50] Speaker 02:
as World is doing here, the plaintiff patentee is pointing to these general descriptions of scalability and asserted improvements in bandwidth and trying to tie those to the claims.

[00:21:00] Speaker 02:
And as in two-way media, there is no connection to the claims.

[00:21:04] Speaker 02:
And for that same reason, the alleged evidence that my friend is pointing to now on appeal for the first time with respect to these third-party articles is also not sufficient to raise a material

[00:21:17] Speaker 03:
What if the claim had been rewritten as follows?

[00:21:23] Speaker 03:
A scalable server client architecture for a virtual world game that can contain an unlimited number of users when the server

[00:21:38] Speaker 03:
transmits to the clients the position of less than all of the other users avatars wherein the number is determined based on the bandwidth limitations or on the number of clients connected to the virtual space and the client determining a maximum number of the other users avatars to be displayed wherein the maximum number is determined based on the client's processing and rendering capacity.

[00:22:05] Speaker 03:
Would that be patent eligible?

[00:22:06] Speaker 02:
I think it would be much closer.

[00:22:08] Speaker 02:
Of course it would be much closer.

[00:22:09] Speaker 03:
How about yes or no?

[00:22:12] Speaker 03:
Is that patent eligible?

[00:22:13] Speaker 02:
The reason why I'm hesitating, Your Honor, is because it would depend on what's disclosed in the specification.

[00:22:19] Speaker 03:
It's this specification.

[00:22:21] Speaker 03:
This specification is saying, gee whiz, we've got limits on the number of people that can participate in a given virtual game.

[00:22:28] Speaker 03:
due to everybody's limited capacity.

[00:22:31] Speaker 03:
However, we've cracked the code.

[00:22:33] Speaker 03:
We can now allow a lot of people, everybody, to enter a game.

[00:22:37] Speaker 03:
It's just that each individual client computer is only going to be able to render and display a partial amount of participation of all the possible users for a lot of different reasons.

[00:22:49] Speaker 03:
And it has to do with, ultimately, technical limitations, both on the server side and the client side.

[00:22:55] Speaker 03:
And so now I read you the claim that I read.

[00:22:58] Speaker 03:
What do you think?

[00:23:00] Speaker 02:
Based on the disclosure and the specification, I would still say no, Your Honor, because we're still talking about using conventional computer components, running conventional computer functions.

[00:23:11] Speaker 02:
and doing so in the way in which clients and servers ordinarily operate.

[00:23:18] Speaker 02:
Servers sending information down to the client.

[00:23:20] Speaker 03:
So you're saying this, what you're basically telling me is that the game that Worlds created that was praised up and down in the industry is just there's no conceivable way to have a patent eligible claim.

[00:23:35] Speaker 02:
no sir I'm not okay what would that claim look like I gave you mine so if I took your claim your honor with a specification that was like the BASCOM specification for example that described the conventional way of doing things the limitations of those conventional ways of doing things and why the specifically claimed process that's presented by the

[00:23:58] Speaker 03:
This specification, as I understand it, is saying that the backdrop is that when doing these virtual games, you transmit everything about every other user that's in the virtual world.

[00:24:13] Speaker 03:
to all the clients and then the clients render all of those other avatars and that's just the way these games are played and then ultimately everybody hits a capacity limit and so there's only a fixed number of users that can actually participate.

[00:24:30] Speaker 03:
But now I've done this.

[00:24:31] Speaker 03:
And now I've got a server that is limiting the transmission of all those positions of different avatars based on bandwidth concerns or based on a certain maximum number of users that it's going to transmit to various different clients.

[00:24:46] Speaker 03:
And then on the client side, they likewise are going to have their own threshold limits in order to render not all, but just a fraction of what gets transmitted to them.

[00:24:59] Speaker 02:
Yes sir.

[00:25:00] Speaker 02:
Is that patent eligible?

[00:25:00] Speaker 02:
Yes it is.

[00:25:01] Speaker 03:
Okay.

[00:25:03] Speaker 02:
If I just one last thing and I'll sit down because I know I'm standing between everyone lunch is that on this piece with respect to the third party articles only last thing I'd want to say with respect to that is that it suffers from the same issues as the general statements that we've discussed with respect to scalability and the like.

[00:25:20] Speaker 02:
There's no actual connection to what's actually claimed.

[00:25:23] Speaker 02:
I'll agree for purposes of this posture and where we are today that it offers some praise about the world's chat, but it's not talking about the ordered combination and why that is non-conventional.

[00:25:38] Speaker 01:
What was the evidence that you introduced that you think supports the decision that this combination of elements in this claim is conventional routine?

[00:25:51] Speaker 02:
Yes, Your Honor.

[00:25:51] Speaker 02:
So just like Two Way Media, which is on a 12C, it was based on the claims, the specification, and world's own statements with respect to the nature of its invention.

[00:25:59] Speaker 01:
What in the specification is it that renders this particular combination conventional?

[00:26:07] Speaker 02:
Two things, Your Honor.

[00:26:08] Speaker 02:
One, it's the statements with respect to the fact that the individual components are, in fact, conventional.

[00:26:12] Speaker 02:
And then, two, the absence of any statement, as in VASCOM, for example, that the combination of these things here is non-conventional and different from what had been done conventionally.

[00:26:21] Speaker 01:
I mean, how does that meet your burden of proof?

[00:26:26] Speaker 01:
You're the summary judgment movement.

[00:26:28] Speaker 01:
You have the burden.

[00:26:30] Speaker 01:
How does the fact that the spec says nothing about conventionality satisfy your burden?

[00:26:36] Speaker 02:
We think it does, Your Honor.

[00:26:37] Speaker 02:
And I've omitted one thing in response to your prior question.

[00:26:41] Speaker 02:
We're also relying on the court's prior precedent.

[00:26:43] Speaker 02:
I know it's not necessarily controlling.

[00:26:45] Speaker 02:
But I think, as this court has recognized, it is helpful to look to other decisions.

[00:26:49] Speaker 02:
And in similar cases, like two-way media, for example,

[00:26:53] Speaker 02:
the court has described the particular ordering of the steps, like at issue here, to be conventional.

[00:26:58] Speaker 02:
But to Your Honor's question, the answer to it is, we have to remember, at the Rule 56 stage, we're governed by cases like Celotex and the like, and we came forward with our initial proffer with respect to why the claims are not patent eligible, and we did rely on the things that I mentioned.

[00:27:15] Speaker 01:
Yeah, but where's your expert report?

[00:27:16] Speaker 01:
Where is somebody saying client-side filtering?

[00:27:20] Speaker 01:
Judge Chen asked opposing counsel, are you trying to claim that you all invented client-side filtering?

[00:27:25] Speaker 01:
And smartly he said, not necessarily that exactly.

[00:27:28] Speaker 01:
Where is your evidence, the evidence that you introduced that shows that the individual aspects are conventional and that the combination adds nothing more?

[00:27:39] Speaker 02:
You're right, Your Honor.

[00:27:40] Speaker 02:
We did not rely on any extrinsic evidence.

[00:27:42] Speaker 02:
It was all intrinsic evidence, as well as the pertinent case law.

[00:27:46] Speaker 02:
And we think that's acceptable.

[00:27:47] Speaker 02:
And the Rule 12 cases, for example, 12C, for example, a two-way media exemplifies that.

[00:27:53] Speaker 02:
We don't have a bright-line rule set forth either by Alice or by this course precedence with respect to the nature of evidence that one needs to adduce under Step 2.

[00:28:02] Speaker 01:
I mean, I think that you might be right considering really the extraordinary breadth or lack of detail in these claims.

[00:28:09] Speaker 01:
I think Judge Hughes said these claims don't show us how to do it, why to do it, or when to do it.

[00:28:15] Speaker 01:
But if the claims were more detailed and did pull in, for example, the nature of the architecture and stuff, I think that you would have for sure failed this case.

[00:28:27] Speaker 02:
I don't necessarily agree with that, Your Honor.

[00:28:30] Speaker 02:
We would have had a different hurdle.

[00:28:32] Speaker 02:
the hurdle would have been a little bit higher if the claims were more narrowly tailored, and there was a different disclosure in the specification.

[00:28:40] Speaker 01:
Because even just so you know, at the 12b or 12c stage, we're frequently seeing expert reports attached to complaints and things like that.

[00:28:51] Speaker 01:
So there usually is some evidence.

[00:28:54] Speaker 01:
Like you would point to, it would have been useful, for example, had you proffered evidence which you could have found in the form of prior court cases saying, look,

[00:29:02] Speaker 01:
Server-side filtering, not novel.

[00:29:05] Speaker 01:
Client-side filtering, not novel.

[00:29:07] Speaker 01:
And that's simple stuff to pull together.

[00:29:10] Speaker 01:
It would have been helpful.

[00:29:11] Speaker 01:
You may prevail despite that.

[00:29:13] Speaker 01:
So maybe, I guess, rationally, you saved your client money by not looking for the prior art, but it would have helped in any event.

[00:29:21] Speaker 01:
That's it.

[00:29:22] Speaker 01:
You're good.

[00:29:22] Speaker 01:
Thank you, Your Honor.

[00:29:23] Speaker 01:
Thank you, Ms.

[00:29:24] Speaker 01:
Prussia.

[00:29:24] Speaker 01:
Mr. Helge, you have, I'll restore two minutes of rebuttal time, please.

[00:29:38] Speaker 00:
Thank you, Your Honor, very quickly.

[00:29:39] Speaker 00:
Two-way media is an important case, both in the district court order and in Activision's briefing.

[00:29:46] Speaker 00:
Two-way media is critically different here for one very important reason.

[00:29:51] Speaker 00:
In two-way media, the court looked at the claims and looked at what was in the specification and said, this specification purports to have invented a scalable architecture.

[00:30:02] Speaker 00:
That architecture is missing from the claims.

[00:30:04] Speaker 00:
Importantly here, the architecture is in the claims.

[00:30:07] Speaker 00:
And I recognize your honors are focusing on claim four for today.

[00:30:10] Speaker 00:
But as we look back at claim one, from which claim four depends,

[00:30:14] Speaker 00:
There is discussion of the client process, the server process, each user being associated with the client process and being in communication with that server process.

[00:30:22] Speaker 00:
That is the architecture that also includes protocols being performed.

[00:30:26] Speaker 01:
So is that the point of novelty to use a very, very old-fashioned term that probably precedes your lifetime?

[00:30:33] Speaker 01:
What is the point of novelty here?

[00:30:37] Speaker 01:
the non-conventional, non-routine, because it's not the components.

[00:30:40] Speaker 01:
Servers are known, clients are known, video games are known, avatars are known.

[00:30:44] Speaker 01:
There isn't, it's the combination that you have to tell me.

[00:30:46] Speaker 01:
So what is it about this combination that is technologically innovative, not conventional, not routine?

[00:30:53] Speaker 00:
So the counterintuitive solution that Worlds came up with was we're going to have a video game where the goal is to bring people together.

[00:31:01] Speaker 00:
We're going to bring as many users together and we don't want to have

[00:31:03] Speaker 00:
some artificial limit because the server can only handle so many avatars, the clients can only process so many images or other beings walking around this virtual world.

[00:31:16] Speaker 00:
We're going to apply counter-intuitively a filter at the server side, which then allows the number of users to increase.

[00:31:26] Speaker 00:
As we talk about, I think it's in column three, lines 41 to 46 or so,

[00:31:30] Speaker 00:
World's engineers recognize that as the numbers increase, the server had to be much more discriminating about what it transmits to the users.

[00:31:39] Speaker 00:
Judge Moore, I answered your question earlier and I probably didn't give you the answer you're looking for, but I think the important thing is that opens the floodgates.

[00:31:46] Speaker 00:
That releases

[00:31:48] Speaker 00:
a bottleneck that had not been present in the conventional client server architecture.

[00:31:52] Speaker 00:
And so once that bottleneck is released, now you have the question of, wait, can all of these clients handle all of these additional users?

[00:32:00] Speaker 00:
And we said, no.

[00:32:01] Speaker 00:
You need to provide some safeguard at the client side to handle those additional users.

[00:32:06] Speaker 00:
Your Honors, I would just submit briefly.

[00:32:08] Speaker 00:
See, I'm out of time.

[00:32:09] Speaker 00:
I would submit briefly that

[00:32:11] Speaker 00:
The inclusion of filtering isn't necessarily fatal.

[00:32:13] Speaker 00:
The use of core wireless case, for example, took a limited list of applications that could be launched and displayed those.

[00:32:21] Speaker 00:
And TechSec certainly says that we can look to benefits that are in the spec, not necessarily in the claim, but result from the claim.

[00:32:27] Speaker 00:
Thank you, Ron.

[00:32:28] Speaker 01:
Thank you very much.

[00:32:29] Speaker 01:
I thank both counsel.

[00:32:30] Speaker 01:
The case is taken under submission.