[00:00:00] Speaker 05: We have appeal number 22-1932, EOS Technologies Incorporated versus Amazon.com. [00:00:07] Speaker 05: Mr. Campbell? [00:00:08] Speaker 05: You've reserved four minutes for a rebuttal? [00:00:10] Speaker 05: Yes, Your Honor. [00:00:11] Speaker 05: Okay, please begin. [00:00:13] Speaker 03: Thank you. [00:00:15] Speaker 03: May it please the Court, John Campbell for Aeolus Technologies. [00:00:19] Speaker 03: This Court should reverse the District Court's holding that the 507, the asserted claims of the 507 patent are ineligible for patent protection because the claims are directed to an improved computer network system. [00:00:31] Speaker 03: a worldwide web in which the major components have been reconfigured to overcome particular problems and enable interactivity, scalability, and security. [00:00:42] Speaker 05: Can I ask you just a couple questions about how this claim works? [00:00:48] Speaker 05: This is about enabling a user to interact with some kind of object, some kind of data object, right? [00:00:56] Speaker 03: At a very high level, yes. [00:00:57] Speaker 05: And it's all being done through a web browser. [00:01:02] Speaker 05: What can you explain what does it mean to interact with an object if that's understood by this claim? [00:01:10] Speaker 03: Yes, so an object is defined, it was construed and it's defined in the patent. [00:01:16] Speaker 03: It's things such as an audio file or a video file. [00:01:19] Speaker 03: So if you, interaction could be things like hitting play, pause, fast forward 15 seconds, reverse 15 seconds on an audio or a video file. [00:01:29] Speaker 03: It's defined to include things like spreadsheets where you can manipulate the data, change the data, recalculate data, things of that nature. [00:01:37] Speaker 05: Does it encompass interacting with the [00:01:39] Speaker 05: object encompass something like pinch and zoom? [00:01:45] Speaker 03: Yes, if you're zooming in on an image. [00:01:48] Speaker 03: That's also. [00:01:49] Speaker 05: Like when you talk to your computer and the computer talks back to you. [00:01:56] Speaker 05: Is that interacting with an object in this claim? [00:01:59] Speaker 03: Well, so first of all, just to be clear. [00:02:03] Speaker 03: Well, I guess we'd have to understand the art. [00:02:06] Speaker 03: If you're just talking to your computer, maybe not, right? [00:02:08] Speaker 03: There is more to this claim in terms of the object. [00:02:11] Speaker 03: It has to be part on the client, part on the server. [00:02:13] Speaker 05: OK, the object is displayed on a web page. [00:02:17] Speaker 05: And then you, the user, I guess you're talking to that object. [00:02:21] Speaker 05: And then there's something. [00:02:22] Speaker 05: in the app or the object itself that is able to respond back to it? [00:02:28] Speaker 03: Yes. [00:02:28] Speaker 05: Is that encompassed by this claim? [00:02:30] Speaker 03: Your Honor, that's an excellent question, because as you just pointed out, part of what the claim requires is that the object be displayed in the web browser. [00:02:38] Speaker 03: So it depends, I guess, on the implementation of whether if it's just talking to you and there's no display, perhaps not. [00:02:46] Speaker 05: I guess one concern I think the district court had is that this claim [00:02:54] Speaker 05: is saying that you, whatever this invention is, it enables a person to be able to interact with an object, an object that's displayed on a webpage. [00:03:06] Speaker 05: And there's all different kinds of possible ways that you could interact with an object, and there's all different kinds of objects that could be interacted with, and yet the claim doesn't explain any of that on what are the [00:03:21] Speaker 05: the implementation details, the nuts and bolts of how any of these different versions of interaction with any of these different objects would occur. [00:03:32] Speaker 05: And so in that way, maybe this claim starts to look a lot like some of our case law where we said result-oriented claims that don't provide any details on how one would actually accomplish the desired result here interacting with an object. [00:03:51] Speaker 05: has a problem under the abstract idea exception. [00:03:54] Speaker 05: Could you comment on that? [00:03:55] Speaker 03: Yes, of course, Your Honor. [00:03:57] Speaker 03: And so I think here we have to recognize two things. [00:04:00] Speaker 03: One is the configuration here is defining the architecture. [00:04:04] Speaker 03: And the other thing that we have to consider, as this Court has pointed out time and time again in its case law, is we have to consider the improvement, the focus of the claim to advance over the prior art. [00:04:13] Speaker 03: And part of the struggle standing here, sitting here today in 2023, is to remember this pattern goes back to 1994, right? [00:04:21] Speaker 03: And in 1994, the web was just a series of pages with clicks to open up another web page, open up another web page, all static, right? [00:04:29] Speaker 03: No interactivity whatsoever, right? [00:04:32] Speaker 03: I mean, in the record, we have at 17454 a picture of Microsoft's webpage, static, a bunch of hyperlinks. [00:04:39] Speaker 03: And so what we're talking about here is this claim defines through eight different ways, different than what the prior art was, how to configure an improved network, an improved worldwide web. [00:04:51] Speaker 03: to enable this interactivity in a scalable and secure way. [00:04:56] Speaker 03: So you've got eight different ways that's done, I guess nine if you count the combination of the ways, in which this network is architected different than the... Well, let's stick to the claim, Plan 32. [00:05:07] Speaker 00: Yes. [00:05:08] Speaker 03: I'm sorry, Judge Stoll. [00:05:09] Speaker 00: I was just going to ask, I thought it was interesting you were talking about how the claim is defining the architecture of the World Wide Web. [00:05:16] Speaker 00: Is this a method claim or is it a system claim? [00:05:21] Speaker 00: It seems like it's a hybrid. [00:05:23] Speaker 03: Well, claim 19, or sorry, claim 32 is a method claim. [00:05:26] Speaker 03: I believe claim 19 is a system claim. [00:05:29] Speaker 03: It's a method claim that it has to be done. [00:05:31] Speaker 00: But if I'm looking at claim 13, which is a method claim, it has two steps, step A and step B. And then it has, within step B, a very long functional description of what the architecture is. [00:05:44] Speaker 00: And so I'm wondering, is this a method claim, or is it a system claim? [00:05:49] Speaker 00: Sorry, claim 32. [00:05:50] Speaker 00: Claim 32 in particular. [00:05:51] Speaker 03: I'm sorry, I thought you said 13. [00:05:52] Speaker 03: So it is a method claim, but it does define the environment in the way this method has to be performed. [00:06:01] Speaker 03: And within this environment, you have to have a particular worldwide web reconfigured network that defines [00:06:10] Speaker 03: It defines the architecture in a way that is very different from what was done in the prior art. [00:06:15] Speaker 00: OK. [00:06:15] Speaker 00: I'll have you go back to Judge Chen's question now that you've answered mine. [00:06:21] Speaker 03: OK. [00:06:22] Speaker 03: So when we look at the claim of Judge Chen, as you asked, and there's eight different ways, nine with the combination, [00:06:29] Speaker 03: that when you consider what the World Wide Web was in 1994, you consider the way this claim is defining the improved computer network, the World Wide Web, and changing things. [00:06:39] Speaker 03: We have an architecture that is required here that is not just result-oriented. [00:06:44] Speaker 02: Let me ask you a question on the abstract idea. [00:06:48] Speaker 02: If you took distributed computing out of the claim altogether, and you just focused on the [00:06:56] Speaker 02: interactive, interactivity element here. [00:07:00] Speaker 02: Do you think that this claim, these claims, books, and particularly on claim 32, would survive? [00:07:07] Speaker 03: I do, Your Honor. [00:07:08] Speaker 02: What's left after you take the distributed computing out that isn't an abstract idea? [00:07:14] Speaker 03: Well, it's still defining an improved computer network system. [00:07:18] Speaker 03: And so if we go through, it's interesting. [00:07:20] Speaker 03: There's been a lot of focus on the distributed computing. [00:07:22] Speaker 02: But that shows up in a lot of focus in your brief, to be fair. [00:07:27] Speaker 03: Maybe more than there should be, right? [00:07:29] Speaker 03: That's the last 10 lines of about a 55-line claim, right? [00:07:33] Speaker 03: So we don't even get there till the end. [00:07:35] Speaker 03: If we look before that, the claim tells us that we have to relocate part of the object into the web page to display and interact with it in the page, not talking about the distributed application. [00:07:49] Speaker 03: We have to reconfigure the web server to detect that object, send information that detects the object. [00:07:56] Speaker 03: We have to reconfigure the web browser with multiple interactive content applications. [00:08:01] Speaker 03: None of this was done before. [00:08:03] Speaker 00: What is it about putting the interactive applications in the web browser themselves? [00:08:12] Speaker 00: What was the difficult thing about doing that? [00:08:16] Speaker 00: I'm trying to understand. [00:08:18] Speaker 00: the difference between having those applications in the web browser versus outside the web browser. [00:08:23] Speaker 00: I know, for example, that your title of the invention is automatically invoking external applications. [00:08:31] Speaker 00: talks about launching an external application. [00:08:34] Speaker 00: And now what's being argued to us is something that's an inventive concept is having these internal applications. [00:08:41] Speaker 00: So I'm trying to understand. [00:08:42] Speaker 00: I can't understand from your specification, for example, why that's inventive. [00:08:47] Speaker 00: Could you help me to understand that? [00:08:49] Speaker 03: Sure. [00:08:50] Speaker 03: So in 1994, it wasn't done. [00:08:53] Speaker 03: It was all static hyperlinks. [00:08:54] Speaker 03: And so to reconfigure the web, to change the browser, and there's source code that is referred to in the specification, included in the specification in Appendix A, [00:09:04] Speaker 03: where the web browser was changed to bring in an interactive content application that is then invoked from the web browser. [00:09:11] Speaker 03: That was different than what was done before, than what he had done before. [00:09:15] Speaker 05: I think the question is, though, why does that matter? [00:09:18] Speaker 05: I mean, if the prior art was you had an app separate from the web browser that was handling the display of some perceived data object, and now your client says, well, I'm going to put that app right into the web browser itself. [00:09:35] Speaker 05: Why does that make a difference? [00:09:37] Speaker 05: Why should we consider that some kind of technical improvement or something that is any kind of improvement over the prior art version, which was already receiving data objects and then displaying them through some app? [00:09:55] Speaker 03: They were received and we just click on a hyperlink and get a new webpage, right? [00:09:59] Speaker 03: And so I think you got it. [00:10:00] Speaker 03: It's we got to be careful not to isolate things It's the combination right when you come could you answer that question? [00:10:06] Speaker 00: I mean, I I just really want to try to understand To sorry if I'm if I'm not I'm trying to maybe I don't understand the question Yeah, you were talking about we don't isolate things I want you to just assume for a minute that we can isolate things for a minute and just answer the question that [00:10:22] Speaker 00: about one of the assertions you make is that an inventive aspect of your invention is taking these interactive content applications and having them in the web browser as opposed to outside. [00:10:34] Speaker 00: So why is that? [00:10:35] Speaker 03: Well, for one, it's novel, non-obvious, and it was new in 1994. [00:10:41] Speaker 00: But what is, as Judge Chen said, why is that a big deal? [00:10:47] Speaker 00: What advantage or benefit do you get from that? [00:10:50] Speaker 03: Well, that's where, in isolation, I would have to think about that. [00:10:55] Speaker 03: But in combination, [00:10:57] Speaker 03: when you start to consider doing that which had never been done and then what that then leads you to, right? [00:11:04] Speaker 03: To be able to put that in there and interact with an object over the web, right? [00:11:09] Speaker 03: Now we can take advantage of the power of servers that we couldn't take advantage of before, right? [00:11:15] Speaker 03: Go ahead. [00:11:16] Speaker 05: Okay. [00:11:17] Speaker 05: I guess that's my question, which is, is there something about the old way of doing it before you [00:11:26] Speaker 05: put this interactive app on the web browser? [00:11:30] Speaker 05: Is there something about that old way of doing it that prevented you from being able to tap into the distributed computing of a network of computers? [00:11:41] Speaker 03: The old way didn't do it. [00:11:43] Speaker 05: I know it didn't. [00:11:44] Speaker 05: But I'm trying to understand if there's something technically interesting about taking the app, instead of it being an external app, putting it into the web browser. [00:11:53] Speaker 05: And therefore, by putting it into the web browser, that permitted something that wasn't available before, which is to say, now, thanks to having the app on the web browser, you are able to tap into a network of computers that are connected to the web. [00:12:09] Speaker 05: And that is the key to the invention. [00:12:12] Speaker 05: And so am I on to something or am I misunderstanding the claim of invention? [00:12:18] Speaker 03: Well, I think we're having trouble getting back to 1994. [00:12:23] Speaker 03: The way this was done in terms of interactive content in 1994 is you had to download the content to your client computer, invoke a helper application, entirely separate application, [00:12:36] Speaker 03: And then you could use it. [00:12:38] Speaker 03: And depending on the size and the scale of that, maybe that couldn't even be done. [00:12:43] Speaker 02: Are you suggesting? [00:12:44] Speaker 02: The question is, did you show people how to do it? [00:12:47] Speaker 02: Or did you simply say, this would be a keen thing if we could do it. [00:12:53] Speaker 02: And here's the keen thing. [00:12:55] Speaker 02: And therefore, I get ownership of any way that it's later done. [00:12:59] Speaker 02: To me, that's the key question here. [00:13:02] Speaker 02: I'm not hearing how your claim language [00:13:05] Speaker 02: Never mind the specification, but the claim language actually tells us how to do what you are saying was achieved. [00:13:14] Speaker 03: OK. [00:13:14] Speaker 03: So you go through the claim, right? [00:13:17] Speaker 03: It architects things with eight, nine, with the combination, different ways to make this happen, right? [00:13:23] Speaker 03: We're going to relocate part of the object to be in the web page, displayed in the web page. [00:13:29] Speaker 02: Well, that's describing an objective. [00:13:31] Speaker 02: We're going to put the object in the web page. [00:13:35] Speaker 02: how we go about it. [00:13:37] Speaker 02: Now you may have had, I will accept that in your specification there's a way to do that. [00:13:44] Speaker 02: And if you had pleaded this as a 112-6 type function, niche plus function claim, you would get the function as effective [00:14:01] Speaker 02: by the structure that you've claimed in the specification and equipments, but no more. [00:14:08] Speaker 02: But the way you've completed it, you get everything that performs this function. [00:14:15] Speaker 02: That seems to be very broad and to be at tension with cases such as Interim Licensing, Amaranth, SAP, and ultimately back to the Halliburton case. [00:14:29] Speaker 03: With all due respect, I don't think it is functional. [00:14:33] Speaker 03: It's saying this is how you change versus what was done in 1994. [00:14:37] Speaker 03: This is how you change. [00:14:38] Speaker 03: This is how you architect it. [00:14:41] Speaker 03: Put this here rather than here. [00:14:45] Speaker 03: Put the interactive content application in the web browser rather than outside. [00:14:51] Speaker 03: Have the interactive content application be able to invoke [00:14:55] Speaker 03: at the interactive web browser. [00:14:58] Speaker 02: That is describing function. [00:15:05] Speaker 03: When you architect it this way, you are able to do these things. [00:15:09] Speaker 03: When you architect the web in this way, you are able to have this functionality. [00:15:15] Speaker 00: Council, can I ask you on step two, when the district court held [00:15:24] Speaker 00: that the idea of putting the interactive applications in the web browser is itself an abstract idea. [00:15:32] Speaker 00: Why is that wrong? [00:15:36] Speaker 00: Why is that not an abstract idea of itself, putting interactive content applications in the web browser? [00:15:43] Speaker 00: On step one or step two? [00:15:45] Speaker 00: Step two. [00:15:45] Speaker 03: Step two. [00:15:46] Speaker 03: If we go to step two, Your Honor, if we assume that the district court's recitation is an abstract idea, then I think these eight different things, nine with the combination, [00:15:56] Speaker 03: Can I back up and try my question again? [00:16:01] Speaker 00: Why isn't the idea of having interactive content applications in a web browser abstract? [00:16:09] Speaker 00: Why isn't the idea of moving the application previously interactive content applications were external to the web browser? [00:16:16] Speaker 00: Your claim says they're internal to the web browser. [00:16:19] Speaker 00: Why is that not an abstract idea in and of itself? [00:16:22] Speaker 03: Because it's defining how to change the network, to change the World Wide Web in a way that wasn't done before. [00:16:28] Speaker 03: So it's a concrete, specific change that is not just saying, do it on a computer. [00:16:34] Speaker 03: The computer's not just used as a tool. [00:16:37] Speaker 03: We're saying, actually change the World Wide Web in a way that allows for these advantages. [00:16:44] Speaker 03: And so that's not an abstract idea. [00:16:47] Speaker 03: It's not just saying, apply it on a computer. [00:16:49] Speaker 05: And that's what I've been trying to pull out of here, and I'm going to try it one more time because this matters to me. [00:16:55] Speaker 05: I'm trying to figure out why, in your view, does the relocation of the app from the client computer to the web browser matter? [00:17:07] Speaker 05: What benefit do you get from that? [00:17:11] Speaker 05: What is the technical-based advantage of that? [00:17:14] Speaker 05: And that's why I followed up that question with [00:17:18] Speaker 05: Could it be that by having the app relocated to the web browser, now you're able to somehow more efficiently or automatically tap into the processing power of a network of computers that are also connected to the web? [00:17:37] Speaker 05: What's the answer to that question? [00:17:40] Speaker 03: Yes, you can, but I don't think just that by itself allows that. [00:17:43] Speaker 03: I think there's other things that are required that are defined by the claim that allow what Your Honor just said to tap into these resources that you couldn't tap into before. [00:17:54] Speaker 03: It's not solely moving. [00:17:56] Speaker 03: I don't want to isolate things and leave the court with a misimpression that solely by moving in our direction. [00:18:01] Speaker 05: I'm trying to find out if there's some technical-based connection between the relocation of the app to the web browser [00:18:12] Speaker 05: about the claim. [00:18:17] Speaker 03: Yes, those two things along with others that are defined by the claim. [00:18:23] Speaker 03: Allow for the scalability of accessing server computers that give you more power on the client than you had before. [00:18:31] Speaker 03: Allow you to have interaction that you didn't have before. [00:18:35] Speaker 03: And architecture in the way that the claim requires allows for a secure way to do that that didn't exist before 1994. [00:18:42] Speaker 05: I think your expert report was under seal, or at least partially under seal. [00:18:54] Speaker 05: experts speak to this issue. [00:18:57] Speaker 05: And when I say issue, I mean in the prior work, you would not have been able to enjoy the access of processing power and network of remote computers. [00:19:13] Speaker 05: But now this invention, as drafted in the claim, allows you to do that, something that you couldn't do before, because [00:19:22] Speaker 05: We are doing it through the web, and we have an app that is embedded in the web browser. [00:19:29] Speaker 03: Yes, Sean. [00:19:30] Speaker 03: Our expert did speak to it. [00:19:32] Speaker 03: several reports and declarations. [00:19:34] Speaker 03: At the record at 17453 to 56, there's an expert report discussing the state of the art, the need for helper applications, how this changed the art. [00:19:44] Speaker 03: There's a declaration at 12024 that talked about the web not adopting this mechanism until 1996, some three years after it was invented here. [00:19:57] Speaker 03: There's another report at 122.16 to 108 talking about early web authors resistance to even consider something like this and that the later mosaic authors expressed admiration for the inventors for doing this. [00:20:11] Speaker 03: So there are a number of reports and declarations in the record from our expert speaking to this as an advance over the prior art. [00:20:24] Speaker 05: I think we've gone on long enough. [00:20:28] Speaker 05: We will reserve at least some time for rebuttal for you, OK? [00:20:32] Speaker 05: It depends on how long we go with Mr. Bell. [00:20:36] Speaker 05: Understood. [00:20:37] Speaker 05: Thank you, Your Honor. [00:20:37] Speaker 05: Thank you. [00:20:43] Speaker 05: Let's give Mr. Bell 19 minutes, if needed. [00:20:48] Speaker 04: Thank you, Your Honor. [00:20:49] Speaker 04: May it please the court? [00:20:51] Speaker 04: Gabe Bell for the appellees. [00:20:53] Speaker 04: I think what we've heard here thus far really highlights the problem. [00:20:57] Speaker 04: And that's the sweeping nature of the asserted scope of these claims. [00:21:01] Speaker 04: According to Yolis, anything interactive on the web today falls within the claims that are asserted here and thus comes under their ownership. [00:21:12] Speaker 04: And the problem with that, I think as the questions have elicited here, is there's no nuts and bolts, as your honor was talking about earlier. [00:21:20] Speaker 04: There's no how do you do something technologically interesting here that wasn't done before. [00:21:28] Speaker 04: And the thing that really, as I read their reply brief in particular, that they're kind of resting on, in large part, is this notion of doing it in the web. [00:21:39] Speaker 04: It's at page one of their reply. [00:21:40] Speaker 04: It's at page the last of their reply. [00:21:43] Speaker 04: That's what got them over the obviousness hump, that obviousness type double patenting. [00:21:47] Speaker 04: That's the only thing really different about these claims compared to the ones that were invalid before. [00:21:52] Speaker 04: So it's understandable that that's what they would focus on. [00:21:55] Speaker 04: The problem is that creates a problem for section 101. [00:21:58] Speaker 04: Because all this claim does is say, do it on the web. [00:22:01] Speaker 04: And your honor asked the question about, is the application actually in the browser? [00:22:06] Speaker 04: The answer is no. [00:22:07] Speaker 04: for the reasons that you described. [00:22:09] Speaker 04: In the title, it's an external application that's being launched. [00:22:12] Speaker 04: In column 15, an example is an external application, figure 8a, external application. [00:22:18] Speaker 04: All you're doing is providing an output of that, rather than in a separate window under whatever window system you're on, you're providing the output and the interaction in a browser window. [00:22:29] Speaker 04: And so it really does come down to do this thing, do interactivity, [00:22:34] Speaker 04: on the web. [00:22:35] Speaker 04: And that's a problem under cases going back to right after Alice. [00:22:38] Speaker 04: If you think about the Ivy versus Capital One decision in 2015. [00:22:42] Speaker 05: I guess the concern I have, or one concern I have, I have a lot of concerns on both sides, is the district court's articulation of the abstract idea here, in which he believed the claims were directed to. [00:22:59] Speaker 05: The court said, [00:23:01] Speaker 05: abstract idea is enabling interactivity with remote objects on a client computer browser using distributed computing. [00:23:11] Speaker 05: And one argument could be that the district board went too far in [00:23:19] Speaker 05: shoveling in elements of the claim into the articulated abstract idea to such a degree that there was nothing left to rely on as to what could arguably be an inventive concept here. [00:23:32] Speaker 05: And maybe the abstract idea should have really been left at the broader notion of enabling interactivity with remote objects. [00:23:41] Speaker 05: And then the debate is, OK, what about relocating the interactive app? [00:23:46] Speaker 05: from the client's own computer to the web browser, and then is there something about that that allows you to tap into a host of remote computers and its processing power in order to overcome a given coin computer's limited [00:24:04] Speaker 05: processing power and then also at least at that time limited bandwidth that was available on the internet. [00:24:12] Speaker 05: So could you speak to that about my concern about what is the right way to frame the abstract idea here? [00:24:22] Speaker 04: So a couple of thoughts on that, Your Honor. [00:24:24] Speaker 04: One, I don't think it matters, and I'll explain why. [00:24:27] Speaker 04: But two, even at that level of granularity, there are cases such as Simeo, such as Aptec Mobile, that have a similar level of explaining what's included within it. [00:24:36] Speaker 04: And I think there was a good reason for that, because where you have functional limitations that aren't telling you how, it makes sense. [00:24:42] Speaker 04: You kind of have to describe everything that's going on. [00:24:45] Speaker 04: So I think that's fine under this court's case law. [00:24:47] Speaker 04: But backing up to the first question, [00:24:49] Speaker 04: I think it wouldn't matter whether you stopped after enabling interactivity and then as your honor said, doing it on the web, does that provide something more? [00:24:58] Speaker 04: And you'd also have to look at doing it with distributed computing, does that provide something more? [00:25:02] Speaker 04: I think that would have been a fine articulation as well because [00:25:06] Speaker 04: And I think this is key. [00:25:07] Speaker 04: In the patent specification at columns five through seven, it really lays out what the problem that the patentee at the time said they were overcoming. [00:25:17] Speaker 04: And the problem is that lack of client computing power, that lack of internet bandwidth. [00:25:22] Speaker 04: And it says, how are we going to overcome that? [00:25:25] Speaker 04: Not by improving the internet, not by improving the client computer, per se, but simply by harnessing the existing power of distributed processing. [00:25:33] Speaker 04: That's at the bottom. [00:25:34] Speaker 02: But does harnessing the existing power of other computers constitute at least some form of something that would fall within [00:25:46] Speaker 02: Step two allows a step that may or may not be well-recognizable to the team. [00:25:52] Speaker 02: But if it's not, wouldn't that be something that would rescue the claim if we viewed the abstract idea as not including distributed computing? [00:26:01] Speaker 04: I don't think so, Your Honor, and here's why. [00:26:03] Speaker 04: Because the patent doesn't talk about the distribution in any meaningful way as providing some technological advances, harnessing it. [00:26:12] Speaker 04: The claims don't explain how to do any sort of load balancing. [00:26:16] Speaker 04: And I think there's a key passage. [00:26:18] Speaker 05: So would that make it patent eligible in review? [00:26:21] Speaker 05: My guess is the answer would be no. [00:26:22] Speaker 04: No. [00:26:23] Speaker 05: If the claim had an extra limitation that said, well, we're going to divvy up the [00:26:29] Speaker 05: processing needs amongst the different remote computers such that the corner computer is only doing a limited amount of processing. [00:26:39] Speaker 05: I mean that I'm sure would not persuade you that that is good enough either. [00:26:43] Speaker 05: So I'm not sure [00:26:46] Speaker 05: What that means in terms of being a useful argument for us to think through what makes the grave is an inventive concept. [00:26:54] Speaker 04: Well, I think particularly on this record. [00:26:56] Speaker 04: And I'll just bring it back to this record. [00:26:57] Speaker 04: And this is an admission by the inventor. [00:26:59] Speaker 04: And this is at page 16, 659, and 60 of the appendix. [00:27:06] Speaker 04: And the inventor was asked point blank, is there anything in the claims that tells you how to do this distribution? [00:27:14] Speaker 04: Says no nothing in the claims. [00:27:16] Speaker 04: He said we didn't invent that So there's nothing in the claims and there's a mission that they didn't invent distributed computing as they had to they were just using it and tacking it on as a Technological environment in the same way that in Alice if you tack on a computer to do certain things Even if it was new that doesn't make it patent eligible the tricky thing about how [00:27:40] Speaker 05: Inquiry. [00:27:41] Speaker 05: Claim doesn't tell you how to do X. It doesn't tell you how to do Y. I mean, we can play that game all the way down to the deepest level of granularity. [00:27:51] Speaker 05: I mean, Fastcom, for example, can tell you how to install that filter on the remote server or how to make the different choices of a given whiteness or blackness in terms of accessing Internet websites. [00:28:09] Speaker 05: And this court said, that's fine. [00:28:11] Speaker 05: It doesn't need to go that level of teaching how to do all of those different features. [00:28:17] Speaker 05: All that mattered and was good enough was the relocation of the customized filter from the individual client computers to the server. [00:28:27] Speaker 05: And then through that, there was this technical advantage of being able to use the server's knowledge of the individual client addresses in order to [00:28:37] Speaker 05: permit and serve customized internet filters. [00:28:41] Speaker 05: So here we have a situation where we are, something may be similar to Bazcom, we are relocating this kind of app from the client computer to the web browser. [00:28:53] Speaker 05: We are relocating some of the processing from the client computer to a remote set of computers. [00:29:00] Speaker 05: And maybe through all of that, now that kind of invention can give you something [00:29:07] Speaker 05: never be gotten before, which is interacting with highly complex data objects. [00:29:14] Speaker 04: So I think there's a crucial difference here between BASCOM and the current case. [00:29:17] Speaker 04: So BASCOM was at the Rule 12b6 stage. [00:29:20] Speaker 04: And this court credited all plausible inferences in favor of the patentee, claiming construction hadn't happened. [00:29:27] Speaker 04: Here we're on a very different record. [00:29:29] Speaker 04: Years and years later, after ELS insisted on and secured very, very broad constructions, over the defendant's objections, I would note, [00:29:39] Speaker 04: for any sort of details from the spec or otherwise that might confine this, confine what it means to be interactive, confine what it means to be distributed, confine what it means to invoke an application. [00:29:51] Speaker 04: And so the court construed it at the time. [00:29:54] Speaker 04: And so we're left with really vacuous limitations. [00:29:57] Speaker 04: And Your Honor is correct that it's sometimes hard to see how much how is necessary. [00:30:01] Speaker 04: But I think on this record, where you have the patentee, in its own words, attempting to own the interactive web as we know it. [00:30:09] Speaker 04: mean just taking a step back when you look at the sheer breadth of that I would submit it subsumes almost any other patent this court has ever examined under section 101 and that is a key indication that there's something wrong here that's not the way the patent council can I ask you going back to step two [00:30:28] Speaker 00: So you had mentioned that it was your view of, for example, Claim32, that the interactive content applications didn't actually have to be in the web browser. [00:30:38] Speaker 00: I think you were suggesting that. [00:30:40] Speaker 00: Is that based on claim construction? [00:30:42] Speaker 00: Is it based on what is your basis for that? [00:30:45] Speaker 00: Let me tell you the part of the language of Claim32 I was thinking about. [00:30:48] Speaker 00: It says under part B, I, it says a worldwide web browser [00:30:54] Speaker 00: has been configured with a plurality of different interactive content applications. [00:31:00] Speaker 00: So I think that's the key language, but what is your view on what language or claim construction you're relying on to say that these interactive content applications don't have to be within the web browser? [00:31:13] Speaker 04: Right, so I think, again, the title of the patent to start with, but then the claim construction said that the web browser is separate from [00:31:21] Speaker 04: separate from the application. [00:31:23] Speaker 04: It also said there does not have to be a predetermined set of applications. [00:31:27] Speaker 04: And if you look at the example given in figure 10, for example, their so-called viz application, that they say practices the invention, that is separate from the browser. [00:31:39] Speaker 04: So the processing that's going on in the application, the interactive application, is in fact separate from the browser. [00:31:45] Speaker 04: And I don't think they'll tell otherwise. [00:31:47] Speaker 04: It's just the output of that and the interaction of that goes through the web browser. [00:31:52] Speaker 04: But that's the same type of confining to a technological environment of the web that was at issue in Ultramurphy. [00:31:59] Speaker 04: For example, you had interactive content. [00:32:01] Speaker 04: The user had to click on an ad to see some content. [00:32:04] Speaker 04: And doing it on the web, use the word web or web pages, wasn't sufficient, even if it hadn't been done before. [00:32:10] Speaker 00: Do you have an appendix site for the plain construction aspect of your answer? [00:32:14] Speaker 04: I do. [00:32:14] Speaker 04: I will find that for you. [00:32:15] Speaker 04: Thank you. [00:32:16] Speaker 04: It was in construing the interactive content application. [00:32:21] Speaker 04: And I'll make sure to get that for you. [00:32:23] Speaker 04: And I don't think my friends on the other side would say otherwise, given all of this intrinsic and other evidence. [00:32:30] Speaker 02: Let me return to the question that we talked about a bit on a couple of occasions here. [00:32:37] Speaker 02: Suppose that we do not agree with your characterization of the abstract idea. [00:32:43] Speaker 02: And you either construe the abstract idea of itself [00:32:49] Speaker 02: enabling interactivity with remote objects full stop or Enabling interactivity with remote objects on the client computer browser full stop What is the proper way we should go about disposing of this case and analytically? [00:33:06] Speaker 02: What would be the path that we would follow? [00:33:09] Speaker 04: So in all events, I think they're ineligible as a matter of law so the proper path at the end of the day I think is to a farm [00:33:16] Speaker 04: I don't think it matters. [00:33:17] Speaker 04: This court sometimes does tweak the abstract ideas that they see when it comes up on appeal from the district court. [00:33:23] Speaker 04: And recognizing that there really isn't a difference between different ways of formulating it, I think ultramaritalism- That's the key question. [00:33:29] Speaker 02: Is there a difference that makes a difference to the outcome of this case? [00:33:34] Speaker 04: It absolutely does not. [00:33:35] Speaker 04: And I'll take each of those kind of curtailing that Your Honor suggested one by one, if I may. [00:33:40] Speaker 04: So enabling interactivity with remote objects [00:33:44] Speaker 04: I think even my friends don't meaningfully dispute that that's probably an abstract idea. [00:33:49] Speaker 04: We certainly think it is. [00:33:50] Speaker 04: The next part of that is on a client computer browser. [00:33:53] Speaker 04: So that's the limitation in some fashion to doing it on the web, right? [00:33:58] Speaker 04: That's what it's talking about, provided in a browser, just like in Ultramershal, just like in Capital One. [00:34:03] Speaker 04: So that wouldn't provide an eligible spark. [00:34:06] Speaker 04: And then finally, using distributed computing. [00:34:08] Speaker 04: That's the final piece. [00:34:09] Speaker 04: And that went to bring the court, if I could, back to the specification. [00:34:13] Speaker 04: That's really the piece of this that the specification calls out, including at the bottom of column six, as being what these patentees are doing. [00:34:22] Speaker 04: And that is harnessing that power of distributed computing. [00:34:26] Speaker 04: But on this record, where A, you have a construction of distributed application that is vacuous. [00:34:32] Speaker 04: It just means doing an application that's distributed, number one. [00:34:37] Speaker 04: Number two, you have the patentee's own inventor [00:34:39] Speaker 04: saying they didn't invent distributed community. [00:34:42] Speaker 02: Right, but doesn't that go to step two rather than to step one? [00:34:46] Speaker 02: Aren't you really saying, well, they didn't invent it. [00:34:49] Speaker 02: It was conventional, well understood and recognized routine. [00:34:53] Speaker 02: Is that what you, the way you would tell us that we should analyze this case if we disagree with you [00:34:59] Speaker 02: and the district court with respect to the abstract idea. [00:35:03] Speaker 04: Absolutely, Your Honor. [00:35:04] Speaker 04: So having defined the abstract idea as you suggested, then these other additions, you would look at step one to ensure that they don't somehow change the abstract idea. [00:35:14] Speaker 04: And we don't think they do. [00:35:15] Speaker 04: But then at step two, you would ask, does it add something inventive? [00:35:19] Speaker 04: And that's ultimately a question of law that might have underlying fact issues, but does not here for the following reason. [00:35:25] Speaker 04: And here's why. [00:35:26] Speaker 04: First, it's admitted that using distributed computing, [00:35:30] Speaker 04: is conventional, that they didn't invent that. [00:35:32] Speaker 04: They disavow any notion that that's what they invented, right? [00:35:35] Speaker 04: That's a 1665960. [00:35:38] Speaker 04: So in those circumstances, this court has said it's perfectly appropriate to acknowledge that, whether it comes from the specification or from an admission by the patentee itself. [00:35:47] Speaker 04: So that wouldn't provide anything at step two. [00:35:49] Speaker 04: Likewise, on a client computer browser and everything that goes with is simply confining it to the internet context. [00:35:56] Speaker 04: And that, at step two, is what this court looked at in Ultramershal and Capital One as not providing an inventive idea, even if, even if, and I think this is crucial, even assuming that it was new. [00:36:08] Speaker 00: So I was just going to ask you like setting this case, you know, setting your advocacy in this particular case aside and looking at the case from our point of view and thinking about how we should analyze it and all these cases going forward. [00:36:21] Speaker 00: There is something interesting about the fact that this was going back to what was it? [00:36:27] Speaker 00: It's a very old invention, right? [00:36:29] Speaker 00: 1994 is the date. [00:36:32] Speaker 00: So there's something attractive about having the step two analysis in there, because at least you can take into account what a person who ordinaries go near would have thought with respect to inventive concept, which brings the time frame in there. [00:36:44] Speaker 00: And do you have a response on that? [00:36:46] Speaker 00: I mean, because if everything is just bucketed into step one, you don't even get to think about [00:36:52] Speaker 00: the time frame of the invention. [00:36:54] Speaker 00: And that seems wrong to me. [00:36:55] Speaker 04: I do think the time frame does play a role, taking a step back. [00:37:00] Speaker 04: I don't think it ultimately matters. [00:37:02] Speaker 04: Here, because of the admissions, because the specification itself doesn't treat distributed computing as anything unconventional or new, because the claims don't explain, for example, how to distribute that load between different things, for any of those reasons, [00:37:16] Speaker 04: I think the time frame is irrelevant here. [00:37:19] Speaker 04: It would be the same then as it is now. [00:37:22] Speaker 04: Now, of course, again, taking a step back, we now have a very different framework from the Supreme Court than when these claims were ultimately first prosecuted through all initial continuations. [00:37:33] Speaker 04: We're all pre-Alice. [00:37:35] Speaker 04: This one ended up right after Alice. [00:37:36] Speaker 04: So you have a specification. [00:37:38] Speaker 04: Candidly written for a different time, right? [00:37:41] Speaker 04: It was at a time and you could just hack on things like the web You could just hack on things like distributed computing and it would have been eligible That's no longer the case now and I think for good reason [00:37:51] Speaker 04: And again, looking at the broad, broad scope, and I would point the court to a statement at A15547. [00:38:00] Speaker 04: This is where their inventor is saying there are, quote, limitless number of ways, end quote, to implement this. [00:38:06] Speaker 04: And that's consistent with the lack of any sort of restriction on what constitutes interactivity. [00:38:12] Speaker 04: How do you balance the load? [00:38:14] Speaker 04: How do you do all these other things that the claim, to be fair, is verbose? [00:38:19] Speaker 04: And there's a lot of jargon. [00:38:20] Speaker 04: But looking at this court's case law, and as the panel steps back and tries to figure out where it fits in the matrix of the case law, I think a couple of decisions really stand out. [00:38:30] Speaker 04: One is the Affinity Labs case. [00:38:32] Speaker 04: And that's actually a pair of cases. [00:38:34] Speaker 04: where it was about providing interactive content in a mobile device that was configured to provide a list of options for the user. [00:38:44] Speaker 04: The user could select it, could receive some streaming content, or receive some internet content. [00:38:49] Speaker 04: And this court recognized that despite that verbosity, despite that jargon in the claims, it boiled down to an abstract idea. [00:38:56] Speaker 04: And this is really a superset of that, if you think about it. [00:39:00] Speaker 04: This is not just confined to a mobile device. [00:39:02] Speaker 04: This is any client computer. [00:39:04] Speaker 04: This is not confined to videos and things like that. [00:39:07] Speaker 04: This is any interactive content. [00:39:09] Speaker 04: So the scope is breathtakingly, I would submit, broader than what we saw in the Affinity Labs case. [00:39:15] Speaker 04: Simeo is another, I think, key decision where there you did have an abstract idea articulation that, on its face, seemed a little bit specific. [00:39:24] Speaker 04: Right there, the abstract idea was using graphics instead of programming to create object-oriented simulations. [00:39:32] Speaker 04: And the idea there, and the court there said, let's assume that's new. [00:39:36] Speaker 04: Let's assume it's useful. [00:39:38] Speaker 04: But we're going to look at whether you provided enough how. [00:39:41] Speaker 04: And the claims recited things like a data structure, recited things like adding functionality to an instance of an object, an object-oriented programming. [00:39:50] Speaker 04: These are fairly specific computer things. [00:39:53] Speaker 04: But ultimately, it wasn't enough, didn't provide. [00:39:55] Speaker 05: Getting back to these points, clearly the end game is being able to tap into the processing power of a host of remote computers in order to enable their activity. [00:40:12] Speaker 05: What would you say about the argument that by reloading [00:40:23] Speaker 05: that it's not actually on the web browser. [00:40:25] Speaker 05: But going through the web and doing everything hosted on a web platform is what permits you to do that kind of tapping into the processing power in those computers. [00:40:40] Speaker 05: And that's the technical advantage. [00:40:44] Speaker 04: So a couple of thoughts, Your Honor. [00:40:46] Speaker 04: One, I didn't hear that my friends on this side were actually making that argument. [00:40:49] Speaker 04: They seemed to resist that question, and I think for good reason. [00:40:52] Speaker 04: Because number two, the specification doesn't suggest that it's the use of distributed power specific to the web. [00:40:59] Speaker 04: And here's how we know it. [00:41:01] Speaker 04: We know it because the specification says you can use any network. [00:41:04] Speaker 04: You can use anything, internet or otherwise. [00:41:07] Speaker 04: That's just one example. [00:41:09] Speaker 05: Well, this claim is defined down to at least the web, right? [00:41:13] Speaker 04: It is. [00:41:14] Speaker 04: Sure. [00:41:14] Speaker 04: And in that sense, it's no different than tacking on the web to anything. [00:41:17] Speaker 04: If that were enough, I think. [00:41:19] Speaker 05: But I'm trying to figure out whether there was an insight here that didn't exist before. [00:41:25] Speaker 05: And the insight was, let's go get the processing power of these remote computers. [00:41:30] Speaker 05: Let's do that through the web. [00:41:31] Speaker 05: Let's have our app now on the web platform. [00:41:35] Speaker 05: And now we can do this in a purely web-based way without having to rely on some [00:41:41] Speaker 05: external helper app fired up at the client computer. [00:41:45] Speaker 04: Right. [00:41:45] Speaker 04: So I think we could, at two levels, one, we could assume that it was an insight. [00:41:50] Speaker 04: And I think that's, the problem is that's where they stop. [00:41:53] Speaker 04: There's one case that the court decided where it said, it's a great idea, but that's where you stop. [00:41:57] Speaker 04: And he didn't tell us how to do it. [00:41:58] Speaker 04: But I don't really even think that the specification goes into that level of detail, let alone the claims. [00:42:03] Speaker 04: right, that there is some insight in doing it on the web to harness this power. [00:42:09] Speaker 04: In fact, the inventor, when asked repeatedly, what is it specific about the web, using the web here versus other networks, that makes these claims special, and couldn't come up with an example. [00:42:22] Speaker 04: That's at page A15545, and then goes on two pages later to say, in fact, there are limitless ways [00:42:29] Speaker 04: you could do it. [00:42:30] Speaker 04: So I think they're kind of disavowing any notion that there's anything specific here connecting the web to that distributed content. [00:42:37] Speaker 04: And, Your Honor, I promised you a citation on the separate from, and that is at A6538. [00:42:43] Speaker 04: Interactive content app is still external. [00:42:48] Speaker 04: Their expert acknowledged that it's, quote, not built into the browser. [00:42:51] Speaker 04: That's at A18296. [00:42:54] Speaker 04: So absent further questions, I would [00:42:59] Speaker 04: submit that the court should put, finally, an end to Ulysses' quest to, in its words, own the interactive web as we know it. [00:43:08] Speaker 04: That's exactly the type of thing that 101 has prohibited for a long time. [00:43:13] Speaker 04: The Supreme Court has prohibited going back, arguably, to the O'Reilly case, but certainly in modern times. [00:43:19] Speaker 02: Well, that raises a question that something you said a few moments ago triggered in my mind. [00:43:26] Speaker 02: You said, I think, that [00:43:29] Speaker 02: before the rise of 101 jurisprudence in recent years, that this patent would not be vulnerable to being struck down. [00:43:42] Speaker 02: And I'm wondering whether I misunderstood you or whether you think there would be a different way of striking down the patent under the non-101-directed analysis of cases like Morse and Halburton. [00:43:59] Speaker 02: which were directed to pure functional claiming. [00:44:03] Speaker 04: So to clarify, Your Honor, our view would have been then as now that they are ineligible under Section 101, just to be clear. [00:44:09] Speaker 02: Right. [00:44:09] Speaker 02: I understand. [00:44:10] Speaker 02: But what are you saying, that that's the only basis, and we're at 101 to be struck down [00:44:17] Speaker 02: retrospectively tomorrow as a basis for kicking out patents, then you would lose this case. [00:44:25] Speaker 04: No, we think we have very strong invalidity, kind of traditional invalidity defenses. [00:44:30] Speaker 02: Okay, but what I'm trying to go with this is, to cut to the chase, do you think that Morse and Hal Burton were essentially 101 cases in different clothing? [00:44:42] Speaker 04: I think the answer is yes, and I think that's backed up by the Supreme Court's view of it. [00:44:47] Speaker 04: In Mayo, it invoked Morse. [00:44:50] Speaker 04: In Alice, it invoked Morse as a kind of doctrinal underpinning of this notion that you have to say how. [00:44:56] Speaker 04: In the Morse decision, the court said, for all we know, [00:45:00] Speaker 04: There might be other ways of doing this. [00:45:02] Speaker 04: Well, that's exactly, I assume, what we have here. [00:45:05] Speaker 04: We know, for they knew, we now have the interactive web that they're seeking to own. [00:45:09] Speaker 04: Any way of doing it. [00:45:10] Speaker 04: Everything from Gmail to Apple, excuse me, to Amazon cart, to Walmart cart, to anything. [00:45:17] Speaker 00: But this doesn't make it ineligible, right? [00:45:19] Speaker 00: That makes it a broad claim. [00:45:21] Speaker 00: I just, you know, I'm just letting you know that that's not what's convincing me. [00:45:25] Speaker 00: I want to look and see whether there's an abstract idea under step one and step two, not that the claim is broad alone, or that it covers a lot of different possibilities now. [00:45:34] Speaker 00: Something written in 1994 or invented in 1994 might cover a lot of different technologies now. [00:45:40] Speaker 00: The question is whether step one and step two are satisfied as the district would say. [00:45:45] Speaker 04: Absolutely. [00:45:46] Speaker 04: And I think the district court was spot on. [00:45:48] Speaker 04: I think the analysis in that case was similar to the Aftek mobile case that this court considered and affirmed, where there were some seemingly intricate limitations, including precoded software components that you allow the user to manipulate and create a mobile application. [00:46:03] Speaker 04: Again, this would be a superset of that. [00:46:05] Speaker 04: So not to put every egg in the basket of breath. [00:46:08] Speaker 04: But I think the court has indicated that that is certainly a consideration in determining whether there is an abstract idea of step one [00:46:15] Speaker 04: and determining whether nothing inventive was added at step two. [00:46:20] Speaker 04: So absent further questions, I would urge you to record. [00:46:24] Speaker 05: Do you think the invention of Google Docs was patent eligible in the sense that now we had a document that was being hosted on the web that multiple different parties could work on [00:46:46] Speaker 05: simultaneously and populate content, make adjustments. [00:46:51] Speaker 05: And then the theory would be, well, that was a technical improvement over the old days, where different people had to share edited versions of a document through email. [00:47:05] Speaker 05: And now you don't have to do that anymore, because now this is a web-based platform for a community of people to be able to edit a document. [00:47:17] Speaker 04: I think the devil would certainly be in the details if it was phrase as broadly as hey we have a great idea let's allow collaboration on the web kind of the same way we did on hard copy to sit in a room and everybody could pass it around and I'm going to dress it up with some limitations while acknowledging that [00:47:36] Speaker 04: HTML is not new, while acknowledging the web is not new, I'm going to say do it on the web. [00:47:41] Speaker 04: I would think no in that circumstance. [00:47:43] Speaker 04: Now if they provided some technologically interesting way of doing it and claimed it, then absolutely it could potentially be. [00:47:51] Speaker 04: But again, the devil's in the details, which reminds me, I would point the court that there are some unasserted claims in this case that have some other details not found here. [00:48:01] Speaker 04: Now, would those make the difference? [00:48:02] Speaker 04: I don't know. [00:48:03] Speaker 04: It talks about parsing HTML. [00:48:04] Speaker 04: It talks about embed types. [00:48:06] Speaker 04: It talks about data structure and things like that. [00:48:09] Speaker 04: None of that is found here. [00:48:10] Speaker 04: So that's at least more detail. [00:48:13] Speaker 04: I don't think it would get over the Section 101 threshold, but that's the kind of thing that you need enough of, I think, to make a patent eligible. [00:48:21] Speaker 00: The OLA cites the district's finding with respect to double patenting at page J's 13643. [00:48:28] Speaker 00: to support its view that it was not retaining conventional interactive content applications in a browser. [00:48:35] Speaker 00: What is your response to that? [00:48:38] Speaker 04: I think that actually shows exactly the problem here. [00:48:41] Speaker 04: Because the district court looked at it and said, OK, why does it not fall under obviousness-type double patenting? [00:48:47] Speaker 04: And this is, I'm looking at page A13644, page 47. [00:48:53] Speaker 04: I think that's where your honor was as well. [00:48:56] Speaker 04: And the district court said, well, what is it about these claims that's different? [00:49:00] Speaker 04: Ultimately, it boils down to doing it on the web. [00:49:02] Speaker 04: And it says there are some limitations, and it recites them. [00:49:05] Speaker 04: It says, doing on the web by automatically invoking an application. [00:49:10] Speaker 04: But that automatically invoking was present in the prior continuations that were found invalid under 102 and 103 in this court. [00:49:18] Speaker 04: affirm. [00:49:19] Speaker 04: So the court wasn't saying that that part was new. [00:49:22] Speaker 04: What part of it was new was the fact that you're doing it on the web. [00:49:26] Speaker 04: And a couple of times in its decision, it made that point pretty clear, I think. [00:49:30] Speaker 04: It's doing it on the web. [00:49:31] Speaker 04: And that's to go back to your honor's question. [00:49:34] Speaker 04: Even if you look at that outside of the abstract idea and put it in step two, [00:49:37] Speaker 04: It's exactly what this court has held. [00:49:40] Speaker 04: You can't do and get over step two. [00:49:42] Speaker 04: The ultramurder was at the pleading stage even. [00:49:44] Speaker 04: And it wasn't enough to say, do that interactive content on the web, IV versus Capital One. [00:49:50] Speaker 04: Do that interactive interface, it was termed in the claim, an interactive interface that provide tailored information to the user to interact with. [00:49:59] Speaker 04: And the claim said, and do it on a web page. [00:50:01] Speaker 04: And this court at step two said, that's not inventive. [00:50:04] Speaker 05: Mr. Bell, you've been very generous with your time. [00:50:08] Speaker 04: As have you, Your Honor. [00:50:09] Speaker 04: Thank you very much. [00:50:10] Speaker 04: We would urge the court to affirm. [00:50:13] Speaker 05: Mr. Campbell, let's give Mr. Campbell six minutes if he needs it. [00:50:19] Speaker 05: Thank you. [00:50:22] Speaker 05: Could you answer the question that Mr. Bell raised about claim construction and how should we understand this claim? [00:50:28] Speaker 05: I mean, it looks like, based on the claim language, [00:50:35] Speaker 05: is embedded in the browser. [00:50:37] Speaker 05: But according to Mr. Bell, under some Markman order, there's a different understanding. [00:50:45] Speaker 03: Yes, Your Honor. [00:50:47] Speaker 03: Through all of the claim construction, the OSS for a plain meaning and defendants tried to import limitations. [00:50:53] Speaker 03: But what the district court said is that it was going to be true to the claim language. [00:50:57] Speaker 03: And what the claim language says, right, is the web browser is configured with interactive content applications. [00:51:02] Speaker 03: That doesn't mean it needs to be embedded with. [00:51:05] Speaker 03: It doesn't mean it needs to be part of. [00:51:07] Speaker 03: It can be a separate [00:51:09] Speaker 03: it's separate application that is embedded within the browser application. [00:51:13] Speaker 03: And we just follow the plain language of the claim here to decide whether or not the interactive application is, sorry, whether the web browser is configured with the interactive content application. [00:51:24] Speaker 05: So I guess now I'm trying to understand what is the breadth of configured with. [00:51:32] Speaker 05: You're saying the web browser could be here, but the interactive app is somewhere [00:51:39] Speaker 05: 500 miles away, but we can still say that the web browser is configured with that interactive app? [00:51:48] Speaker 03: No, I think 500 miles away. [00:51:52] Speaker 03: It has to be configured with the web. [00:51:55] Speaker 03: It has to be the web browser is configured with the interactive application. [00:51:58] Speaker 03: So when you're in the web browser, right, you are using the web browser. [00:52:03] Speaker 03: Information is detects an object. [00:52:05] Speaker 03: and the web browser is configured with the interactive content application, a plurality of interactive content applications actually required on the claim, such that it can then automatically invoke the internet. [00:52:17] Speaker 00: I'm very confused, because the question was, what does configured with mean? [00:52:22] Speaker 00: And you answered by saying configured with. [00:52:24] Speaker 00: What does that mean? [00:52:25] Speaker 00: And I see the district court's construction says specifically that the client computer application is separate from a [00:52:33] Speaker 00: it does have this language separate from the interactive content application. [00:52:39] Speaker 03: Yes, and so configured with means the browser itself can invoke the interactive content application. [00:52:46] Speaker 00: But it doesn't have to be inside or part of the web browser, just that it can invoke it. [00:52:50] Speaker 02: It can invoke it, but it doesn't have to be 500 miles away and be invoked. [00:52:55] Speaker 02: It doesn't take very long to signal to travel that far. [00:53:00] Speaker 03: I guess I'm struggling with geographical distance. [00:53:04] Speaker 02: Well, but if you were to object to 500 miles away and say, no, no, that wouldn't work. [00:53:10] Speaker 02: I don't understand why, given the answer you just gave to Judge Doar. [00:53:13] Speaker 03: Yeah, I guess I'm struggling with how geographic distance, how to consider geographic distance in here. [00:53:18] Speaker 02: But it- But in your view, that would still be eligible to be configured with. [00:53:24] Speaker 02: So geographical distances don't matter to configuration. [00:53:28] Speaker 03: Well, no, I don't think that certainly doesn't work in the structure of this entire claim. [00:53:35] Speaker 03: The structure of this claim requires that this distributed application is part on the client and part on the server. [00:53:42] Speaker 03: So you're going to have to have part of it on the client, such that the worldwide web browser is configured with at least that part and can... It's part on the client, but yet it's still somehow separate from the web browser. [00:53:58] Speaker 03: Yes, not everything has to be enveloped in the same executable file, the same source code, the same, you have multiple applications on your computer, right? [00:54:12] Speaker 03: So as long as the web browser is configured with those applications and can detect that one of those applications and automatically invoke one of those applications to deal with the interactive object, then it's configured with that application. [00:54:27] Speaker 03: And so I think this highlights a good point that the claim doesn't cover everything interactive. [00:54:35] Speaker 03: The claim has specific architectural requirements such that you could have a system, you could have an implementation that doesn't cover something that's interactive. [00:54:46] Speaker 03: For example, the browser maybe doesn't select the interactive content application. [00:54:51] Speaker 03: The user has to select that. [00:54:53] Speaker 03: The browser doesn't automatically invoke an interactive content application. [00:54:58] Speaker 03: The browser doesn't display the object in a web page. [00:55:01] Speaker 03: It displays it in some other program. [00:55:05] Speaker 03: You could have many, many ways in which you could have interactivity generally and still not infringe this claim. [00:55:13] Speaker 03: This claim requires [00:55:15] Speaker 03: architectural changes to the way the web was before that allows for this interactivity, scalability, and security. [00:55:24] Speaker 05: And so when we think about... Stop with the scalability and security. [00:55:28] Speaker 05: Okay. [00:55:29] Speaker 05: Okay. [00:55:30] Speaker 05: You keep using the word architect as a verb, and I just want to understand. [00:55:36] Speaker 05: You're saying this claim re-architects the web that allows for something. [00:55:45] Speaker 05: allows for interactivity. [00:55:50] Speaker 05: Why couldn't you get that interactivity without re-architecting the web? [00:56:00] Speaker 03: I think you could have interactivity without re-architecting the web. [00:56:04] Speaker 03: You could have a different network environment with a different program. [00:56:10] Speaker 05: So then what technical advantages there at all? [00:56:13] Speaker 03: So in the record, as Dr. Martin explains at 12028, doing this on the web in this particular way allows for a number of advantages in allowing the user to have control [00:56:28] Speaker 03: in allowing the user to have interactive content over the worldwide web, in allowing there to be, sorry, your honor said not to mention security, but security is part of it to allow the user to control what interactive content applications are involved. [00:56:46] Speaker 03: So having this combination of elements, including over the web, enables an interactive system and changes the network in a way that wasn't done before. [00:56:57] Speaker 03: OK.