[00:00:01] Speaker 02:
Our final argued case of the day is 22-1840, Magna Crosse LLC versus Okie Data Americans Incorporated.

[00:00:17] Speaker 02:
Mr. Bennett.

[00:00:19] Speaker 01:
Good morning, Your Honors.

[00:00:20] Speaker 01:
May it please the court?

[00:00:21] Speaker 01:
There are two issues, distinct issues, that are before the court today.

[00:00:25] Speaker 01:
And the first one is whether the district court correctly held that the claim one of the 304 patent was patent ineligible under both steps of the 101 analysis.

[00:00:35] Speaker 01:
And the second issue is that was there a contract, a settlement agreement, between the parties that would basically negate all the other issues in the case and that the court should enforce the settlement agreement.

[00:00:46] Speaker 01:
And the district court found that there was no contract.

[00:00:49] Speaker 01:
And therefore, there was no breach of the contract on summary judgment and dismissed the counterclaim of Magna Crosse.

[00:00:57] Speaker 01:
On section 101, with respect to the abstract idea, the district court held an abstract idea that was far broader than even the defendant proposed.

[00:01:08] Speaker 01:
The defendant proposed language that came out of the claim regarding

[00:01:12] Speaker 01:
providing a channel into subchannels and then putting data from data sensors into the subchannels.

[00:01:18] Speaker 01:
The district court said that the claim was directed to processing and transmitting data.

[00:01:22] Speaker 01:
Now that is far broader and that doesn't give you any idea of what the claim is about.

[00:01:27] Speaker 01:
It doesn't explain to you what the problem is that was addressed by the invention.

[00:01:32] Speaker 01:
So in this case it's laid out not only in the claim language but in the specification that the problem is that when you have wireless transmission and you have data from data sensors with substantially different data rate requirements that you can have very inefficient use of the channels.

[00:01:51] Speaker 01:
So you can have either channels that are too small or you could have channels that are too large and therefore you're just wasting your space when you're doing these channels.

[00:02:00] Speaker 01:
So what the inventors came up with was said, okay, if you have a situation where you have wireless transmission and you have data from sensors that have substantially different data rate requirements, that the way that you can solve this problem is by first dividing the data channel asymmetrically into sub-channels and then assigning the data from the data sensors that have substantially different data rates to those sub-channels in accordance with the data rate requirements.

[00:02:30] Speaker 04:
I agree with you that what the claims are directed to is more narrow than what the district court found or held.

[00:02:42] Speaker 04:
So let's say that I think, or that I agree with your characterization you just gave, which I think is that it's more directed to having differently sized sub channels for differently sized loads from the data sensors.

[00:03:00] Speaker 04:
Why isn't that itself an abstract idea?

[00:03:04] Speaker 04:
I think that's one of the critical questions here.

[00:03:07] Speaker 04:
And let me just give you an analogy.

[00:03:10] Speaker 04:
When I drive to work, if I take a road here in town called Canal, two lanes go into the city in the morning, whereas going home

[00:03:24] Speaker 04:
there's two lanes instead of having, so there's three lanes, two lanes go in, going home, two lanes go out.

[00:03:30] Speaker 04:
They switch it out according to the amount of traffic coming in and coming out of the city.

[00:03:35] Speaker 04:
Why isn't the idea of having differently sized sub-channels or paths for differently sized loads something that in itself is abstract?

[00:03:46] Speaker 04:
And on the other hand, it's a technological solution to a technological problem.

[00:03:50] Speaker 04:
But that's the issue, right?

[00:03:52] Speaker 01:
Right.

[00:03:53] Speaker 01:
And it's how far do you go down in trying to describe the invention when you determine what that abstract idea is.

[00:04:01] Speaker 01:
Do you look at it from what the problem is?

[00:04:04] Speaker 01:
Do you look at it from what the inventor sets out as a solution?

[00:04:07] Speaker 01:
So in the specification, it lays out

[00:04:10] Speaker 01:
12 different US and foreign patents that was trying to address the problems that were at issue here.

[00:04:17] Speaker 01:
They would separate out some signals, they would do different tweaks to what the invention, what was occurring in wireless transmission.

[00:04:27] Speaker 01:
But in all those cases, they used the same size channel.

[00:04:32] Speaker 01:
In this situation, I think if you come down to the level of, well, what was the solution that they gave, which in this situation is, well, let's now asymmetrically divide these channels.

[00:04:43] Speaker 01:
and then take the data from those data from those data sensors with substantially different data rates and put it into those channels in accordance with those things.

[00:04:54] Speaker 01:
I think that is far too much detail to get into when you're describing what the abstract idea is.

[00:05:00] Speaker 01:
Because the issue is you have substantially different data rates.

[00:05:03] Speaker 04:
I've got to say what the claims are directed to as opposed to what the abstract idea is for your benefit.

[00:05:08] Speaker 01:
Yeah, sorry.

[00:05:09] Speaker 01:
So with your example with respect to the cars,

[00:05:13] Speaker 01:
When you're dealing with substantially different data rates, it could be an order of magnitude higher.

[00:05:22] Speaker 01:
So you could have one channel that handles all of it, if you had a large enough channel, or you may need 10 channels to handle it.

[00:05:30] Speaker 01:
So in the patent, it talks about the situation where you have 16 channels.

[00:05:35] Speaker 01:
And so you divide whatever you have in terms of data coming from sensors into those 16 channels.

[00:05:41] Speaker 01:
But if you have one channel, one sensor that's maybe 10 or 100 times more data than the other channel, it really doesn't match well to how you divide those sensors, those data.

[00:05:53] Speaker 04:
I'm going to be telling you right now, I don't think you're really answering my question in a way that I'd like to hear.

[00:05:59] Speaker 04:
So the Supreme Court has told us that we can look at analogies and see whether something, sometimes looking at analogies,

[00:06:10] Speaker 04:
to determine whether something is abstract or not can be helpful.

[00:06:14] Speaker 04:
So there's this basic idea out there that when you have too much

[00:06:22] Speaker 04:
too much volume, or even like on my water glass.

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Could I fit this whole pitcher in the water glass?

[00:06:29] Speaker 04:
I have different sized glasses for different amounts of liquid.

[00:06:34] Speaker 04:
So why isn't the idea that, hey, uh-oh, I've got too much data and I can't fit it all in one path.

[00:06:43] Speaker 04:
How about if I just make the paths of different size for different amounts of data?

[00:06:47] Speaker 04:
Why isn't that just an idea that's abstracted?

[00:06:52] Speaker 01:
I would say that this court, at least in the data engines case, has said that it's not merely enough to trace an invention to a real world analogy.

[00:06:59] Speaker 01:
I think you can probably trace almost every invention to a real world analogy.

[00:07:03] Speaker 01:
You have a drug that cures cancer, and you can say, well, drugs have cured illness before.

[00:07:08] Speaker 01:
This is just another drug that cures an illness.

[00:07:10] Speaker 01:
It's really directed to an abstract idea.

[00:07:13] Speaker 01:
So the fact that you can do an analogy, I don't think necessarily makes it an abstract idea.

[00:07:18] Speaker 01:
I think you need to look at what the problem is that's trying to be solved.

[00:07:22] Speaker 01:
And then from what that problem is being solved, then try and determine whether an analogy would fit or does it not fit to what's actually the inventive issue here.

[00:07:33] Speaker 01:
And the inventive issue relates to the problem of, I have multiple sensors that have substantially different data rate requirements.

[00:07:42] Speaker 01:
How can I make the transmission of that data more efficient?

[00:07:47] Speaker 01:
Saying that, well, you could put things in different vessels,

[00:07:51] Speaker 01:
then you're starting to get into, well, how did they come up with the idea of solving this problem, right?

[00:07:58] Speaker 01:
So I think that when you get down to an analogy where you're just talking about different vessels, I don't think you're considering what the problem was that was being faced by the inventors here and that others were looking at the same problem and came up with different solutions.

[00:08:14] Speaker 02:
Would you agree that the problem that

[00:08:18] Speaker 02:
The engineers here were facing data transmission, where you had these different data sensors spitting out different amounts of data.

[00:08:29] Speaker 02:
It is very akin to the problem an urban planner would face when they're dealing with rush hour traffic coming into the city and leaving the city in the evenings, and then an urban planner deciding to make the middle lanes

[00:08:47] Speaker 02:
design for coming into the city during morning rush hour and then making those same middle lanes for exiting the city during afternoon rush hour.

[00:09:00] Speaker 02:
Isn't that ultimately the nature of the problem facing both the urban planner and the

[00:09:08] Speaker 01:
Inventors here in this data transmission situation essentially the same problem I think it's a different problem because in this situation you're sending information from two sensors to the same location When you're dealing with an urban planner, you're trying to figure out These people getting out of the city at the same time these people are getting into the city So they're going you're not dealing with the same problem of how do I get?

[00:09:32] Speaker 01:
two things from the same location to the same location at the other side.

[00:09:36] Speaker 01:
So I think that urban planner thing is a slightly different analogy because you're crossing things.

[00:09:41] Speaker 01:
And same thing with your honor's view of traffic coming in and out of the city is that you're really dealing with, you're not dealing with the situation of I have two things sending information.

[00:09:51] Speaker 02:
Well, it's the same solution in the sense that you're assigning the middle lanes

[00:09:55] Speaker 02:
to whichever source of flow leaves those middle lanes the most, whether it's inbound traffic or outbound traffic.

[00:10:02] Speaker 01:
But in that situation, you're either dealing with flow in both directions, where the flow coming out into the city or whichever, let's say... Well, just think of it as two flows, right?

[00:10:13] Speaker 02:
Instead of diametrically opposite directions, we're just talking about two flows of traffic.

[00:10:20] Speaker 02:
And now we're trying to figure out how best to

[00:10:24] Speaker 02:
allocate all the available lanes of the road to the different flows of traffic.

[00:10:30] Speaker 02:
And then in the morning rush hour, you want to give as many lanes as possible to the inbound traffic as opposed to the outbound traffic.

[00:10:38] Speaker 02:
And that, in essence, sounds very much like what the solution here is, which is we're trying to figure out where's the greatest source of data flow, and we want to assign them a larger

[00:10:53] Speaker 02:
Sub-channel a larger, you know transmission pathway compared to other data sensors that are not outputting much data.

[00:11:02] Speaker 01:
Respectfully honor I don't think that's correct because I think the analogy would have to be What you're looking at is you're having everybody in the suburbs coming into the city and you have a one channel that everything has to go through Which suburbs do you allocate the most lanes to and which ones do you allocate the fewest lanes to?

[00:11:21] Speaker 01:
But I don't think that's what's happening here is that you're not having a single highway coming into a data processor, which is what the claim is.

[00:11:28] Speaker 01:
You have sensors sending data to a data processor.

[00:11:31] Speaker 01:
You have a channel that then has to be subdivided based on the data being sent into that channel.

[00:11:37] Speaker 02:
It was already known how to divide a channel into subchannels, right?

[00:11:43] Speaker 02:
Yes, Your Honor.

[00:11:46] Speaker 02:
Why wouldn't it have been obvious to do what these inventors did?

[00:11:51] Speaker 02:
I'm just curious.

[00:11:52] Speaker 02:
In the end, the solution, if we want to call it a solution, does strike me as something rather simple, rather straightforward.

[00:12:03] Speaker 02:
I guess in one sense we could call it technical, but in another sense we could say it maybe doesn't require an engineer with 20 years of experience to say, instead of

[00:12:16] Speaker 02:
dividing it by half.

[00:12:18] Speaker 02:
Why not divide it in an unequal way so that we can create sub-channels that are sized in accordance with the needs of different data sensors.

[00:12:29] Speaker 01:
Well, I would say that if you want to do an obvious analysis as opposed to an abstract idea analysis, at least the patent says there were at least a dozen other patents that they pointed to that did not solve it.

[00:12:38] Speaker 01:
So if you're looking for potentially a long-felt need that was not being solved, this was one of those situations.

[00:12:44] Speaker 01:
You had 12 patents trying different ways to solve the same problem.

[00:12:48] Speaker 01:
It didn't work.

[00:12:49] Speaker 01:
So at least even on the face of the patent, you have an issue with respect to obviousness that I think is lacking in that there are definite fact issues that would need

[00:12:58] Speaker 01:
to be decided before you could say, well, it sounds obvious.

[00:13:01] Speaker 01:
Maybe it sounds obvious looking back, but at the time, this is 1998, maybe it wasn't obvious.

[00:13:09] Speaker 01:
I do want to make one point I do want to address the other issue of contracts just briefly because we think that there was a contract between the parties I think the issues that the district court said are first there has to be It be evidence that there was a later attempt for written agreement means that there was an evidence of contract I think the Texas law is consistent that

[00:13:32] Speaker 01:
Just because you ask for a written agreement and you try and get it doesn't mean that you didn't have an original contract.

[00:13:37] Speaker 01:
And then on second issue is that all these additional terms that are needed, a license, covenant not to sue, release, is there going to be extensions?

[00:13:47] Speaker 01:
When you have a patent that has expired and you dismiss the case with prejudice, you don't need a license, you don't need a covenant not to sue, you don't need a release, you don't need the extensions.

[00:13:57] Speaker 01:
So all these other terms that

[00:13:59] Speaker 01:
Her honor said we're required in the contract in order for it to be a contract for essential terms.

[00:14:06] Speaker 01:
We're not actually essential.

[00:14:08] Speaker 01:
So I'll reserve the remainder of my time for it.

[00:14:09] Speaker 00:
Okay.

[00:14:10] Speaker 01:
Thank you.

[00:14:15] Speaker 00:
Mr. Labgold.

[00:14:17] Speaker 00:
May it please the court.

[00:14:19] Speaker 00:
I'd like to address a couple of points that were addressed with Council first.

[00:14:24] Speaker 00:
First is the analogy of Canal Road or any other similar situation we have in the area.

[00:14:29] Speaker 00:
It's exactly the same thing.

[00:14:31] Speaker 00:
We're talking about maximizing the conduit you have for the flow.

[00:14:37] Speaker 00:
And in that case, we know that in the morning there's a greater flow coming into the city than there is going out.

[00:14:43] Speaker 00:
And so we divide the lanes and allocate them in such a way that they are

[00:14:50] Speaker 00:
using the most bandwidth in that circumstance.

[00:14:53] Speaker 02:
What confuses me about this case is maybe what you just described is an argument for 103 but not 101.

[00:15:02] Speaker 02:
In other words, why is it that

[00:15:06] Speaker 02:
The fact that the nature of this invention might lend itself to a real world analogy like traffic flow management necessarily mean that what we're dealing with here is an abstract idea.

[00:15:22] Speaker 00:
This is not a situation where we're dealing with the convergence of 101 and 103, respectfully.

[00:15:28] Speaker 02:
Because when we step back as doing it- I guess what I'm wondering is, is there a rule of law that we have that if you can analogize a claim invention to something in the real world, then that necessarily is an immediate conclusion of an abstract idea.

[00:15:50] Speaker 00:
Absolutely not.

[00:15:51] Speaker 00:
There is no requirement that if you can make the analogy.

[00:15:54] Speaker 00:
Another analogy, for example, would have been is that this is doing it in a wireless way.

[00:15:59] Speaker 00:
Before that, if you had sensors, the sensors aren't changed.

[00:16:04] Speaker 00:
Within the system, none of the equipment is changed.

[00:16:06] Speaker 00:
The only thing that they're going to do is just dividing and allocating.

[00:16:10] Speaker 00:
So with that as the premise, if we look at it the wired sense, in that sense, we know that some wires can handle more capacity than others.

[00:16:18] Speaker 00:
In your house, you have higher gauge wires for carrying certain amounts of electricity.

[00:16:24] Speaker 00:
You have lower gauge for the standard wiring.

[00:16:26] Speaker 00:
Before it was done wirelessly, it was done with cabling.

[00:16:30] Speaker 00:
And if you had higher data requirements,

[00:16:32] Speaker 00:
Maybe you had to use a cat five or a cat six.

[00:16:34] Speaker 04:
For me, this even sounds more like a prior analysis.

[00:16:38] Speaker 00:
But it's not.

[00:16:39] Speaker 00:
Because what we have here in bringing us purely into the 101 sense is akin to what we've seen in many cases, but in particular, the affinity case.

[00:16:50] Speaker 00:
We talk about in the claim, it says dividing and allocating.

[00:16:53] Speaker 00:
So we have these concepts.

[00:16:55] Speaker 00:
And how are they done?

[00:16:56] Speaker 00:
That's the question.

[00:16:58] Speaker 02:
Getting back to your electrical wire example,

[00:17:02] Speaker 02:
If we had a wiring system for providing electricity to a house, wherein we use the higher gauge wires for hookups to all the electrical equipment in the kitchen, and then use lower gauge wires for all the electrical needs of individual bedrooms, would that be an abstract idea?

[00:17:28] Speaker 00:
The idea of just dividing and allocating is the abstract idea.

[00:17:32] Speaker 00:
And in that particular analogy, we're looking at an application of the abstract idea.

[00:17:36] Speaker 02:
So what I just described is an abstract idea?

[00:17:40] Speaker 00:
The idea of dividing and allocating?

[00:17:42] Speaker 00:
Yes.

[00:17:44] Speaker 00:
The way you've described it is the application of the abstract idea.

[00:17:48] Speaker 02:
I don't know why you're saying dividing and allocating.

[00:17:50] Speaker 02:
What I'm saying is you've got an electrical system for a house where

[00:17:56] Speaker 02:
For the electrical equipment for the kitchen, you use the higher gauge wire.

[00:18:02] Speaker 02:
And then for individual bedrooms that just have needs like for lamps and electric clocks, you use the lower gauge wire.

[00:18:13] Speaker 02:
And that's the claim.

[00:18:14] Speaker 02:
It's an abstract idea.

[00:18:17] Speaker 00:
I think it is.

[00:18:18] Speaker 00:
And I think the way you've done it, actually, is actually you may have gone beyond the abstract idea, because you actually said how you would do it.

[00:18:27] Speaker 00:
and that you would have specific wiring based on the specific wiring requirements, and you would have had the certain thing, and you would have actually done something.

[00:18:35] Speaker 00:
Yours has a little bit more of the how, but I still, on second, I think you are still in the abstract idea.

[00:18:41] Speaker 04:
Sorry for interrupting you, but what if this claim said that the how was by having time or frequency multiplexed?

[00:18:49] Speaker 00:
Well, there is time for frequency multiplexing, but it still doesn't say how.

[00:18:54] Speaker 00:
Let me explain what I mean by that.

[00:18:56] Speaker 00:
We know we have these sensors.

[00:18:58] Speaker 00:
How do we know what those sensors' data requirement is?

[00:19:02] Speaker 00:
And how does the multiplexer know that?

[00:19:04] Speaker 00:
We know nothing about that.

[00:19:06] Speaker 00:
How does the multiplexer then use that data in a way to perform this allocation?

[00:19:12] Speaker 00:
the channel before it does the multiplexing either on time based or frequency based or packet switching the three known types of multiplexing

[00:19:21] Speaker 04:
What about the fact that the patent talks about how it gives examples of different sensors that carry more data than other sensors?

[00:19:29] Speaker 00:
But again, how does the multiplexer know that?

[00:19:31] Speaker 00:
It doesn't say how the assessment is done of what the sensor's data output or bandwidth requirements are.

[00:19:39] Speaker 00:
How that then goes into play with how the multiplexer.

[00:19:42] Speaker 02:
So you're saying that the claim would have been eligible if it had decided how

[00:19:49] Speaker 02:
the system knows which data sensors are outputting the heavy amounts of data compared to other data sensors?

[00:19:57] Speaker 00:
I think we would have a very different argument, because we would have a situation where there was actual structure, actual requirements, actual rules, as we've seen in some of the case, to be followed.

[00:20:09] Speaker 02:
I guess that's the question that I keep coming back to.

[00:20:12] Speaker 02:
Why isn't there a quote unquote rule in this claim

[00:20:17] Speaker 02:
when the claim calls for creating sub channels that are sized in accordance with the needs of the different data sensors, outputting relative different amounts of data.

[00:20:32] Speaker 00:
Because that's a functional result-based answer without telling you how you actually do that.

[00:20:38] Speaker 00:
It is doing it in some way, magically, that you've assessed what the data requirements are, you've assessed what the channels are,

[00:20:47] Speaker 00:
and then you've allocated based on some criteria that we don't know because we don't know how any of that actually happens other than what would have been described as the city planner or might have been described as the electrician who are using now a computer to do what was been done before manually through someone else's expert human expertise.

[00:21:11] Speaker 00:
Because it doesn't say in this system how this standard multiplexer taking data from these standard sensors without changing any data.

[00:21:22] Speaker 02:
But what the claim is doing is it's taking this fixed resource called the data channel.

[00:21:29] Speaker 02:
And it's chopping up that fixed resource in a way that's different than the prior art.

[00:21:34] Speaker 02:
At least that's what's been alleged.

[00:21:36] Speaker 02:
The acclaimed advance is

[00:21:39] Speaker 02:
We're going to parse out this fixed resource in a different way than we've been done before, in a way that better right-sizes each of the resulting subchannels for the different data structures.

[00:21:54] Speaker 02:
And I guess I keep coming back to the question of why isn't that enough to say, yes, that is a non-abstract technique that improves the data transmission process, because after all, we now have

[00:22:09] Speaker 02:
smaller data channels for the smaller data sensors so that we're not dealing with underutilized sub channels.

[00:22:16] Speaker 02:
And then we're also better fitting the large data coming off other data sensors that are now getting better accommodated with a relatively larger sub channel.

[00:22:32] Speaker 02:
So overall, we've got a more efficient data transmission system.

[00:22:36] Speaker 00:
Well, respectfully, if it was that simple, then the examples of the prior art would demonstrate that it has to be more than that.

[00:22:46] Speaker 00:
Specifically, if we look at EP Patent 048354982, and this is the one that cited Column 2 from Lines 14 to 26.

[00:22:56] Speaker 00:
In that example, what happened was

[00:23:00] Speaker 00:
The applicants or patentee, whatever the situation is, had a situation where they had a data requirement and they had a control channel.

[00:23:09] Speaker 00:
And they described how they divided out the control channel because that was much smaller, put the control separately through that control channel, and left all the remaining bandwidth for the primary data, which is what they needed.

[00:23:22] Speaker 00:
That is doing exactly the abstract concept of dividing and allocating.

[00:23:27] Speaker 02:
It sounds like you've got a 102 argument there.

[00:23:30] Speaker 00:
Well, here is more on the step two side.

[00:23:33] Speaker 00:
To look and see if there's anything inventive about specifically the abstract idea in the context in which the patents describe, we would submit that this is evidence to show that this is not unobvious.

[00:23:45] Speaker 00:
Known, conventional.

[00:23:48] Speaker 02:
What if I were to tell you that I'm right on the line in this case?

[00:23:52] Speaker 02:
I don't like the characterization of the abstract idea by the district court.

[00:23:59] Speaker 02:
the court below looked at this claim at way too high of a generality and didn't appreciate what was the purported advance here, which was the manner and dividing up the channel.

[00:24:13] Speaker 02:
But at the same time, this is a very relatively simple invention, court on court.

[00:24:20] Speaker 02:
And so maybe it is just an abstract idea.

[00:24:23] Speaker 02:
I guess what I'm wondering is, are the parties still talking about settlement?

[00:24:29] Speaker 00:
They have not at this point.

[00:24:31] Speaker 00:
There have been discussions that have gone back and forth.

[00:24:35] Speaker 00:
But in response to the question, underneath the final question is that... We're more focused on the primary question, but okay.

[00:24:45] Speaker 04:
Can I ask you about the claim?

[00:24:48] Speaker 04:
Do you think this claim is written in a Jepson format?

[00:24:52] Speaker 04:
I mean, it doesn't say said improvement comprising, but it says characterized by, and that might be

[00:24:59] Speaker 04:
a better question for your adversary but I was wondering what your view was.

[00:25:05] Speaker 00:
We haven't looked in that respect and I don't think that necessarily is going to change the analysis because again we view it to be that there's the abstract concept and without saying how to do it and they're really more aspirational.

[00:25:20] Speaker 00:
They're these goals of how what they want to do in the same way as

[00:25:24] Speaker 00:
creating a claim for winning the lottery, comprising picking the correct numbers.

[00:25:31] Speaker 00:
They say that they have specificity.

[00:25:33] Speaker 00:
The dividing and the allocating are very specific, but they don't tell you how it's accomplished in a practical sense with the equipment that's talked about.

[00:25:41] Speaker 00:
There's no conventional equipment.

[00:25:43] Speaker 04:
What if, let's just assume hypothetically, I understand what your arguments are, but what if a POSA would understand how these steps would operate?

[00:25:52] Speaker 04:
Does that impact?

[00:25:54] Speaker 04:
how we do our one-on-one analysis here.

[00:25:57] Speaker 04:
When you say, they don't say how it's done.

[00:26:03] Speaker 04:
What if a poser would look at it and say, well, of course, I know how it's done.

[00:26:06] Speaker 04:
I mean, dividing up communication channels has been well known for a long time.

[00:26:11] Speaker 04:
Maybe not asymmetrically, but of course we know how to create sub-channels.

[00:26:16] Speaker 04:
And of course, we know how to allocate data to different sub-channels.

[00:26:20] Speaker 04:
So let's just say,

[00:26:23] Speaker 04:
assume for a minute that a poser would understand that.

[00:26:27] Speaker 04:
Ben, what is your 101 argument for why it's not specific enough?

[00:26:33] Speaker 00:
Well we have two things there because now we're pushing the claim closer, pushing the argument if we will to more onto the 103 side because it's describing what is specifically said is the prior art.

[00:26:46] Speaker 00:
Simply dividing down the control channel into a smaller channel and

[00:26:50] Speaker 00:
and the other.

[00:26:51] Speaker 00:
So it has to be in the how.

[00:26:54] Speaker 00:
That's in the same way that there was the, you know, as it says, infinity is a great case, custom media is another great case in this regard.

[00:27:01] Speaker 00:
There's no explanation of how you're going to transform this abstract idea into a patent eligible subject matter, because it seems to me that we're close to just looking at the technological environment as the only distinction here.

[00:27:19] Speaker 00:
And simply by putting that abstract idea into a particular technological environment, as this course has said, it doesn't get us over the hump of it still being an abstract idea.

[00:27:29] Speaker 00:
If we look at it as an abstract idea, we go to step two.

[00:27:33] Speaker 04:
Do you maintain that?

[00:27:33] Speaker 04:
I mean, the way it's presented by your adversary is that there's a technical problem here.

[00:27:39] Speaker 04:
and that technical problem is solved by a relatively simple solution.

[00:27:43] Speaker 04:
Let's say we take their view that it is a technical problem with a relatively simple solution.

[00:27:48] Speaker 04:
Why isn't 101 satisfied there?

[00:27:50] Speaker 00:
Well, because when you get to the answer, in theory, if everything that was put out there is the beauty of this, where we have a sensor, multiple sensors, one of them has a really big data requirement,

[00:28:02] Speaker 00:
The other two, in this three example I'll give you, those have small.

[00:28:10] Speaker 00:
So we've got this big one, we have two sensors, we divide it up into three.

[00:28:15] Speaker 00:
It can go a lot of different ways.

[00:28:17] Speaker 00:
We'll leave the numbers to be.

[00:28:19] Speaker 00:
But the idea is that we don't want to have a situation where you've got a huge data that's not fitting into, and most efficiently, into its channel.

[00:28:28] Speaker 00:
It can't go into that little channel, because if it goes into that little channel, it's going to have to be divided up into other channels.

[00:28:34] Speaker 00:
Or if you have a smaller one, that's going to have to go into a smaller channel.

[00:28:38] Speaker 00:
If not, it has unused space that could have been used by the big users.

[00:28:43] Speaker 00:
But if you look at column six,

[00:28:45] Speaker 00:
Column 6 at line 51 through 58, 57.

[00:28:51] Speaker 00:
Secondly, it is to be understood that while the invention has been discussed and defined by reference to specific sub-channels and the allocation of data from sensors to respective ones of these, it is understood that a sensor producing a high data rate for that purpose have allocated to it a number of sub-channels or thus a group.

[00:29:09] Speaker 00:
So what they're telling you is, even after you've done this division and allocation that was supposed to be to optimize, if you still haven't done it right, you're still in the situation where it doesn't work efficiently, and therefore you just do what's always been done, divide it up amongst a couple of others.

[00:29:27] Speaker 00:
That's what you do, and you send it down two channels divided.

[00:29:31] Speaker 00:
That takes away the entire emphasis of why this is important when it says to it, you can just do what you did the old way.

[00:29:38] Speaker 00:
And I see my time is up.

[00:29:39] Speaker 00:
So unless there's any other questions?

[00:29:41] Speaker 03:
Do you want to say something about the contract case?

[00:29:44] Speaker 00:
With regard to the contract, we believe the evidence is very clear that there was no contract.

[00:29:49] Speaker 00:
The idea that we've said that they forfeited the expired patent, they've now come forward and said that it was known that there was only one patent, there was nothing else.

[00:30:00] Speaker 00:
But when you look at the amendments to the license agreement that they sent,

[00:30:04] Speaker 00:
And we had amended it so that it covered other patents owned, controlled.

[00:30:10] Speaker 03:
And then they made amendments that- Are you talking about the settlement of this case right now?

[00:30:15] Speaker 03:
Yes, I am.

[00:30:16] Speaker 03:
Okay, I'm sorry.

[00:30:17] Speaker 03:
Keep going.

[00:30:18] Speaker 00:
There was not a settlement reached.

[00:30:21] Speaker 00:
There were settlement discussions.

[00:30:23] Speaker 00:
There were never agreements that were reached on the particular terms.

[00:30:29] Speaker 00:
The discussion was back and forth on affiliates, what the scope of the release is.

[00:30:34] Speaker 00:
There were discussions back and forth on which patents would be included.

[00:30:38] Speaker 00:
And no agreement was ultimately reached.

[00:30:41] Speaker 02:
Just curious, why did it look like you were on the cusp of an agreement?

[00:30:46] Speaker 02:
Why was it that you ultimately decided to break it off, break off negotiations, and then file an island motion?

[00:30:55] Speaker 00:
Simply put, the nature of the discussions and what was happening with the attorney involved was such that there became a lot more issues than were capable of being resolved in a sense that would have been proposed previously, if I can put it delicately.

[00:31:17] Speaker 00:
So thank you.

[00:31:20] Speaker 00:
Is there any other question?

[00:31:22] Speaker 02:
No thanks.

[00:31:23] Speaker 00:
Okay, thank you very much.

[00:31:31] Speaker 01:
Your Honours, I think from the perspective of the 101 analysis, I think it's important to realize that this patent dates back to 1998.

[00:31:38] Speaker 01:
So sometimes we have different views of what may be reasonable now versus what would have been reasonable in 1998 before iPhones and all those things.

[00:31:47] Speaker 01:
So when you're looking at a real world analogy, I think here a real world analogy really isn't helpful because what the patent explicitly is talking about is it recognized a problem that was not resolved in the prior art.

[00:32:01] Speaker 01:
And what it was looking to do was then saying, well, what have others done?

[00:32:05] Speaker 01:
How can I do this differently?

[00:32:06] Speaker 01:
Now, it did come up with the solution that your honors have tried to come up with analogies we disagree with, but they are analogies.

[00:32:15] Speaker 01:
But when you're looking at whether analogy would be applicable in this case, I don't think you can look at it from the perspective of, you know, is this a good analogy?

[00:32:24] Speaker 01:
I think you have to look at it from the perspective of the whole patent prosecution history and the claim language where they look for a particular problem in computers.

[00:32:35] Speaker 01:
They see that it's not being solved.

[00:32:37] Speaker 01:
They find out one way of solving it, which is asymmetrically dividing it, and then assigning the data from the substantially different data rate requirement sensors to those channels.

[00:32:49] Speaker 02:
According to its needs.

[00:32:51] Speaker 01:
Yes, Your Honor.

[00:32:52] Speaker 01:
And Karl Marx said that.

[00:32:55] Speaker 01:
Excuse me?

[00:32:56] Speaker 02:
Nothing.

[00:32:56] Speaker 01:
Keep going.

[00:32:57] Speaker 01:
And so if you look at the record as a whole, which is not just the claims, but what they were trying to solve and the prosecution history, I think the analogy really isn't a good way to go in this case.

[00:33:09] Speaker 01:
And an analogy shouldn't really be binding as if I can come up with an analogy, because that would be like saying, an inventor says, well, I was inspired by the way a butterfly's wings moved.

[00:33:18] Speaker 01:
And then you could say, well, now you're your abstract idea because you just did the same thing the butterfly's wings did.

[00:33:24] Speaker 01:
Well, no, it may be a good analogy for how we came up with the invention, but that doesn't mean that's what the invention is directed to.

[00:33:32] Speaker 01:
And also, the specification provides details, a lot of details.

[00:33:37] Speaker 01:
It provides schematics of how the circuits should be set up and describes how data can be allocated using the multipliers.

[00:33:46] Speaker 02:
The other side was saying, well, you just haven't really described enough in the claim how all of this is going to be accomplished.

[00:33:55] Speaker 02:
We don't know how the system is going to understand

[00:34:00] Speaker 02:
which data sensors are relatively high versus low data, and then how we're going to hook up the various subchannels to the various data sensors, et cetera.

[00:34:16] Speaker 02:
And so that is a big piece of our case law, which is that ask ourselves, to what extent is there enough implementation detail in the claim

[00:34:30] Speaker 02:
satisfy ourselves that there is, in fact, the true application of an abstract idea, that we have a real invention in our hands versus something that's merely functional and abstract.

[00:34:43] Speaker 02:
So can you speak to that in a few seconds?

[00:34:45] Speaker 01:
Yes.

[00:34:46] Speaker 01:
In the claim language, we think there is sufficient detail for a person of ordinary skill in the art to know how to do this after reading the specification.

[00:34:54] Speaker 04:
There is sufficient detail.

[00:34:57] Speaker 04:
What about Jefferson claims?

[00:34:59] Speaker 04:
before you're done, too.

[00:35:00] Speaker 04:
Is it a Jepson claim?

[00:35:01] Speaker 04:
Is the claim itself in that preamble present what's in the prior art?

[00:35:08] Speaker 01:
Respectfully, Your Honor, I haven't analyzed it from a Jepson perspective.

[00:35:12] Speaker 01:
I think what the claim in the preamble is trying to set up is where this method is being used, what the situation is.

[00:35:24] Speaker 01:
Data sensors, you have a processor.

[00:35:26] Speaker 01:
It has to be wireless because there's different issues with wireless transmission because you're using a fixed channel versus, for example, wired, you can just pull out another cable.

[00:35:35] Speaker 01:
So that's why there's an advantage to doing wireless.

[00:35:38] Speaker 01:
And you're also sending it to the same processor.

[00:35:41] Speaker 01:
So that's the setup for where the invention is.

[00:35:43] Speaker 01:
In addition to the language in the claim that talks about the data sensors have to have substantially different data rate requirements.

[00:35:52] Speaker 04:
Does anything in that preamble help answer the how to question?

[00:35:56] Speaker 01:
How to?

[00:35:57] Speaker 04:
Well, the question was, I understood the question that you were answering just now, was whether the claim gives enough specificity to tell you how it works, so that we know that it's more than just the abstract idea.

[00:36:11] Speaker 04:
And then I asked you if this was a Jepson claim, because I was wondering if that related at all to

[00:36:17] Speaker 04:
You said it gives the environment, but does that help with your, oh it does give more detail, so it's not just an abstract idea, it's got more details to it.

[00:36:28] Speaker 01:
Well yes, I do in that respect because it has to be a wireless communications and you have to have two data sensors and you're sending the data to a data processor.

[00:36:37] Speaker 01:
So this would be like the situation where you're setting up what the method is by explaining you're dealing with a car

[00:36:43] Speaker 01:
and you're looking at the catalytic converter, and then you're making changes to the catalytic converter, and then the steps after that, without having the context of where this invention is being implied, don't really make sense.

[00:36:56] Speaker 01:
So I think from the perspective of, is the preamble necessary for the context and help understand what the invention is?

[00:37:04] Speaker 01:
Yes, I do believe it is necessary.

[00:37:07] Speaker 01:
But there's other aspects of the limitations that give more detail.

[00:37:13] Speaker 01:
such as the data sensors having substantially different data rate requirements that provides even more detail to explain to the person of ordinary skill in the art the context of the invention and how to apply it.