[00:00:09] Speaker 02:
Your honors, may it please the court?

[00:00:12] Speaker 02:
I'm David Walker with Snyder Wallace for the appellants.

[00:00:16] Speaker 02:
With me are Sean Hunter and Marcellus McSeal.

[00:00:19] Speaker 02:
We're here on appeal from a Rule 12 dismissal where the district court erred in disregarding the presumption of validity, ignoring the claim language, and technical solutions presented in the patent specifications.

[00:00:32] Speaker 02:
The claims at issue are drawn to systems and methods for automated digital pixel shifting, instilled digital photos and videos.

[00:00:43] Speaker 02:
The District Court erred in its analysis under both steps of the ALIS test.

[00:00:51] Speaker 02:
Under step one, the court improperly found that the claims were drawn to an ineligible abstract idea.

[00:00:59] Speaker 02:
This was error because the claimed activity, automatic shifting of pixels, cannot be performed by hand.

[00:01:07] Speaker 02:
There is no manual counterpart.

[00:01:08] Speaker 03:
According to the patent, how is the shifting accomplished?

[00:01:15] Speaker 02:
Using the computer.

[00:01:17] Speaker 02:
That's it?

[00:01:19] Speaker 02:
Yeah, with computer code.

[00:01:21] Speaker 02:
according to the claims.

[00:01:24] Speaker 02:
The algorithm are the steps of the claims that follow the preamble.

[00:01:34] Speaker 02:
For example, claim seven of the 342 patent, appendix 57.

[00:01:51] Speaker 02:
The final element of the claim is shifting the first set of pixels along the nonlinear pathway.

[00:01:58] Speaker 02:
We're in the shifting.

[00:01:59] Speaker 02:
The first set of pixels comprises rendering and re-rendering in a loop, the first set of pixels being shifted.

[00:02:07] Speaker 02:
We could go through the whole claim.

[00:02:09] Speaker 02:
There are four elements, four steps.

[00:02:11] Speaker 02:
That's the method claim.

[00:02:13] Speaker 02:
That is what we claim, and those are the inventive concepts.

[00:02:21] Speaker 03:
describes the user making those choices.

[00:02:30] Speaker 02:
For example, in column five, you come up with, just going back to the flame, you receive a first indication of a first starting point.

[00:02:41] Speaker 02:
And it is true.

[00:02:42] Speaker 03:
The specification talks about the user making those choices.

[00:02:46] Speaker 02:
The first three, yes, that's correct.

[00:02:49] Speaker 02:
Diamond v. Deere, those claims, the user did all of it until at the end there was a computer.

[00:02:55] Speaker 02:
Yeah.

[00:02:57] Speaker 03:
But it doesn't say how the computer does it, just as the computer doesn't.

[00:03:02] Speaker 02:
And in the specification are tools that users can use to have the computer shift to pixels.

[00:03:12] Speaker 02:
This ordered combination.

[00:03:13] Speaker 00:
Would you argue, yes.

[00:03:15] Speaker 00:
Would you argue that the claims have steps that have to be performed in a particular order in order for the automation to occur, the shifting of the pixels?

[00:03:30] Speaker 02:
Exactly right.

[00:03:32] Speaker 02:
Yeah, because it's our contention that this order combination has not before been well understood, routine, or conventional.

[00:03:43] Speaker 02:
And there's no evidence.

[00:03:44] Speaker 02:
The only evidence we have is the record, the intrinsic record.

[00:03:47] Speaker 02:
There's no evidence except attorney argument otherwise.

[00:03:54] Speaker 00:
I think that the invention is somewhat remarkable in certain ways.

[00:04:07] Speaker 00:
It's certainly garnered one of the highest sought out

[00:04:11] Speaker 00:
recognitions in the world of applications that we all have running on the phones.

[00:04:16] Speaker 00:
And this is an application we're talking about that you have, correct?

[00:04:21] Speaker 00:
That's right.

[00:04:21] Speaker 00:
All right.

[00:04:22] Speaker 00:
And it was the most downloaded application in, what, 2017?

[00:04:28] Speaker 02:
Something like that, yes.

[00:04:29] Speaker 00:
The problem is your complaint.

[00:04:32] Speaker 00:
The problem is the facts that you allege in your complaint.

[00:04:37] Speaker 00:
It's like a Christmas tree that's unadorned.

[00:04:41] Speaker 00:
You don't have enough there in order to survive.

[00:04:47] Speaker 00:
So do you want to address that particular issue?

[00:04:50] Speaker 02:
Well, we do say that the Lightrix software performs the claim steps of our claims, for example, in the 017 patent.

[00:05:04] Speaker 02:
I mean, we could read the language.

[00:05:19] Speaker 02:
For example, at 278... Is this your second amended complaint?

[00:05:25] Speaker 00:
Yes.

[00:05:27] Speaker 00:
And the court didn't rule on it?

[00:05:28] Speaker 00:
I guess it did.

[00:05:30] Speaker 02:
Well, the 12b6 dismissal is what was the ruling.

[00:05:48] Speaker 00:
Look at paragraph nine of your complaint.

[00:06:04] Speaker 02:
The patent's in suit.

[00:06:06] Speaker 00:
That's the only statement of complaint you make about the steps, correct?

[00:06:12] Speaker 02:
Well, we say in other places that the Lightrix software

[00:06:17] Speaker 02:
infringes in accordance with the steps of the other patents.

[00:06:22] Speaker 02:
In each patent, we say that.

[00:06:25] Speaker 02:
And so that's what I was referring to when I was referring you to page 278.

[00:06:33] Speaker 02:
in the middle of paragraph 50.

[00:06:36] Speaker 02:
It says, plaintiffs contend that the accused program was specially adapted for and has no substantial non-infringing use apart from using the accused program to automatically shift pixels in accordance with the steps of claims one to five seven of the zero one seven patent.

[00:06:55] Speaker 02:
We're saying specifically what is being infringed.

[00:07:01] Speaker 02:
I mean, we don't have to

[00:07:04] Speaker 02:
do more than that, I believe.

[00:07:07] Speaker 03:
Your claims here, looking at claim one, says the computer has executable instructions.

[00:07:15] Speaker 03:
The specification and the claims never tell us what those executable instructions are.

[00:07:25] Speaker 02:
An expert in the art would be able to take these claims and write computer code to do exactly that.

[00:07:31] Speaker 03:
Okay, but it doesn't that computer code is not described in the pack, right?

[00:07:38] Speaker 02:
Outside of the claims and outside of the telling what the computer code described in the pack You said specifically no, right?

[00:07:49] Speaker 03:
It's not there.

[00:07:50] Speaker 03:
Uh-huh, right Yes Okay, so in

[00:08:09] Speaker 03:
decisions, right?

[00:08:11] Speaker 02:
The user inputs information into the application, that's right.

[00:08:21] Speaker 02:
Okay, let me catch up again before you are, sir.

[00:08:25] Speaker 03:
Your honor, on the 17.

[00:08:35] Speaker 03:
User controls the speed, magnitude, direction of the pixel, and other various attributes.

[00:08:49] Speaker 02:
Yes.

[00:08:53] Speaker 03:
And all it says is that the computer translates that somehow, right?

[00:08:57] Speaker 02:
Correct.

[00:08:59] Speaker 02:
A practitioner in the art would be able to take this information and create computer code that would do exactly what the claims say.

[00:09:08] Speaker 02:
And the claims are the method, the concrete steps that need to be performed for the result to be achieved.

[00:09:20] Speaker 02:
We're not claiming the result.

[00:09:21] Speaker 02:
We're not claiming the effect.

[00:09:23] Speaker 02:
We're claiming the method to achieve

[00:09:28] Speaker 02:
the result that is having the perception of movement within digital photos.

[00:09:45] Speaker 02:
The claims were amended during prosecution.

[00:09:47] Speaker 02:
Oh, let me go back.

[00:09:49] Speaker 02:
The claimed activity cannot be performed mentally.

[00:09:52] Speaker 02:
The Federal Circuit, speaking of rendering pixels, said that requiring manipulating

[00:09:58] Speaker 02:
computer data structures can't be done as a practical matter entirely in a human's mind.

[00:10:05] Speaker 02:
That's CyberSource 654 F3rd 1366 of 1376.

[00:10:10] Speaker 02:
I'll reserve the remainder of my time for a while, unless you have a question.

[00:10:19] Speaker 00:
But the fact that you assert that these

[00:10:26] Speaker 00:
this result can be achieved automatically.

[00:10:29] Speaker 00:
That doesn't necessarily help you.

[00:10:33] Speaker 02:
It doesn't?

[00:10:33] Speaker 00:
No.

[00:10:35] Speaker 00:
Well, the claim for a message... Just the fact that you can use a computer to do something automatically, it's not going to take you to safe land.

[00:10:47] Speaker 02:
Okay, but we have to use a computer because no human can shift

[00:10:52] Speaker 02:
digital pixels with their mind or on pencil and paper.

[00:10:57] Speaker 02:
It can't be done outside of the computer.

[00:11:00] Speaker 00:
That would have been good to see in your company.

[00:11:04] Speaker 02:
Okay.

[00:11:07] Speaker 03:
It doesn't tell us how the computer does it.

[00:11:11] Speaker 03:
It's just like saying, use a computer to do it.

[00:11:14] Speaker 03:
In our past cases, we said that's not enough for technology.

[00:11:20] Speaker 02:
Right.

[00:11:21] Speaker 02:
If you have an abstract idea, and we contend that our claims are not abstract ideas, our claims don't go to the abstract idea itself.

[00:11:30] Speaker 02:
They go to the method of how you perform the getting to the result that is a digital photo with the perception of movement within it.

[00:11:57] Speaker 01:
Thank you, Your Honor.

[00:11:57] Speaker 01:
Robert Greason with Norton Rose Fulbright in the Dallas office.

[00:12:01] Speaker 01:
And I have with me Ms.

[00:12:02] Speaker 01:
Stephanie DeGrode and Ms.

[00:12:04] Speaker 01:
Norton Rose Fulbright in the New York office.

[00:12:07] Speaker 01:
It may be helpful to discuss what these claims look like with respect to other cases that have been before this Court, because I think it follows on to the discussion that Judge Rainer was just having with my colleague.

[00:12:24] Speaker 01:
When my colleague was asked how shifting was performed, he responded that the computer performs the shifting.

[00:12:32] Speaker 01:
But that's not enough.

[00:12:35] Speaker 01:
As this court's found in Erickson and the FISET case and several others, that the mere automation of a otherwise human process does not make a claim any less abstract.

[00:12:50] Speaker 01:
And when there were specific questions about the algorithm itself.

[00:12:57] Speaker 00:
But if you're not claiming automation, but you're claiming orderly steps, is that patent eligible?

[00:13:04] Speaker 01:
I think it depends on the orderly steps and whether or not they suffice to provide an inventive concept.

[00:13:10] Speaker 00:
So you would find that that would be patent eligible?

[00:13:13] Speaker 00:
That what would?

[00:13:15] Speaker 01:
That the orderly steps?

[00:13:16] Speaker 00:
I think there was.

[00:13:18] Speaker 00:
You're not claiming automation.

[00:13:21] Speaker 00:
I mean, otherwise, maybe all soccer fans would be pending eligible because they all involve organizations.

[00:13:28] Speaker 00:
Sure.

[00:13:28] Speaker 00:
So that can't be the end goal, the beginning and the end.

[00:13:32] Speaker 01:
I agree.

[00:13:34] Speaker 00:
If a claim is directed to a method of orderly steps that if you follow these steps,

[00:13:42] Speaker 00:
you achieve this result?

[00:13:44] Speaker 00:
In this case, it's automation of pixel shifting.

[00:13:49] Speaker 01:
Sure.

[00:13:49] Speaker 01:
So there are certainly cases where the claims have had sufficient detail to provide an algorithm that's meaningful, a series of orderly steps.

[00:14:02] Speaker 01:
McRoe would be a good case.

[00:14:03] Speaker 01:
Enfish would be a good case.

[00:14:05] Speaker 01:
But I think McRoe is helpful here because it further underscores the deficiencies in these claims.

[00:14:10] Speaker 01:
McRoe was fundamentally different because it provided an in-depth rule set in the claims itself.

[00:14:17] Speaker 01:
And the court found that it was the incorporation of those rules.

[00:14:20] Speaker 01:
Was McRoe a Toby 6 case?

[00:14:25] Speaker 01:
I don't recall right now, Your Honor.

[00:14:27] Speaker 01:
No.

[00:14:27] Speaker 01:
Don't recall.

[00:14:30] Speaker 01:
That said, McRoe also is fundamentally different because its claims obviated the need for human

[00:14:40] Speaker 01:
interaction and manual judgment making and the like.

[00:14:43] Speaker 01:
Here, when my colleague pointed to where the algorithm was found, he talked about the steps that precede the general pixel shifting step.

[00:14:55] Speaker 01:
But as has been briefed, each of those is dictated by the user.

[00:15:02] Speaker 01:
The user picks the starting point, the ending point, picks the shape of the path upon which pixels are supposed to shift.

[00:15:09] Speaker 01:
picks the width of that path, picks how fast the pixels will be shifted.

[00:15:16] Speaker 01:
So after all of those user-initiated steps, those user-defined steps, there's a general shifting step.

[00:15:23] Speaker 00:
In Kinect Grow, the animator picked on a matrix, let's say the human face, picked different points to where the automation is going to occur.

[00:15:36] Speaker 01:
in the prior.

[00:15:37] Speaker 00:
Yes, in order to mimic the human mouth when it makes a particular sound.

[00:15:47] Speaker 00:
But in that case, that was thought to be pathological.

[00:15:51] Speaker 01:
I disagree.

[00:15:53] Speaker 00:
My understanding is that in the prior art... You disagree that it was found to be patent eligible?

[00:15:58] Speaker 01:
I disagree with the premise that it was human selections involving the claims that were found to be patent eligible.

[00:16:06] Speaker 01:
In the prior art, the user was left to mark certain points at which phenoms should make changes in appearances, things like that.

[00:16:19] Speaker 01:
My understanding is that in McRoe, the claims obviated that requirement.

[00:16:24] Speaker 01:
And therefore, it was that the rules that obviated that requirement lent the claims to patentability.

[00:16:34] Speaker 00:
In your view, with this, if this survived to be sent, would this be patent eligible?

[00:16:51] Speaker 01:
I'm not sure I understand your answer.

[00:16:55] Speaker 00:
We're looking at, this case is about whether the plaintiff had sufficient pleading in his complaint in order to stay the cause of action.

[00:17:05] Speaker 00:
No.

[00:17:06] Speaker 01:
The answer is no.

[00:17:07] Speaker 01:
OK.

[00:17:08] Speaker 01:
Not at all.

[00:17:14] Speaker 01:
Not at all.

[00:17:16] Speaker 01:
In your question earlier, McCrow was decided on rule 12C, judgment on the pleadings.

[00:17:23] Speaker 01:
My colleague also mentioned that having read the claims that one could compile code to effectuate the claim steps generally, as I understand, and if so, that belies the argument that any of the steps found in the claims would be anything other than routine, conventional, or well understood.

[00:17:50] Speaker 01:
And finally, I point out that another problem with the claims themselves is that they're only directed to a result.

[00:18:04] Speaker 01:
The preamble begins with a method for shifting pixels.

[00:18:10] Speaker 01:
followed by user preparatory steps and ends with shifting pixels.

[00:18:15] Speaker 01:
So in other words, we have a claim for shifting pixels by receiving user input in several instances and then shifting pixels.

[00:18:23] Speaker 01:
There's no discussion of how.

[00:18:25] Speaker 01:
There's no description of an algorithm in a meaningful way that would give these claims the type of inventive concept that's required under the ALICE test.

[00:18:38] Speaker 01:
With respect to Alice at step two, I think it's important to remember that the allegations in the complaint that certain features aren't

[00:18:51] Speaker 01:
well-understood a routine or wholly conclusory.

[00:18:56] Speaker 01:
There's no factual predicates from which this court could infer that even if true, they're of legal significance.

[00:19:04] Speaker 01:
Further, under the Twombly-Ickball standard, the court's only required to accept plausible allegations, not just allegations for the reason I just mentioned.

[00:19:13] Speaker 01:
They're not plausible.

[00:19:14] Speaker 01:
But further, even with respect to the claimed features that are

[00:19:18] Speaker 01:
allegedly not well understood routine or conventional.

[00:19:22] Speaker 01:
Again, if you look at those claim steps or the claim features, those are again user initiated.

[00:19:28] Speaker 01:
So whether it's a user selecting a mask or what the shape of the mask looks like or anchor points or edges.

[00:19:34] Speaker 01:
Again, at the end of the day, what we have is a claim that is largely based on a user making selections through a generic interface, followed by a generic step of shifting pixels, and of course, all of which is implemented in a generic computer environment.

[00:19:55] Speaker 01:
So with that, unless the panel has additional questions, I will give my remaining time back to the court.

[00:20:09] Speaker 02:
So the only evidence in the record is the intrinsic record.

[00:20:14] Speaker 02:
So I guess what I'd like to do is let's go back to claim seven of 342 patent, appendix of 57.

[00:20:32] Speaker 02:
Claim seven at appendix page 57.

[00:20:47] Speaker 02:
And so the district court says that the abstract idea is shifting pixels to create the illusion of movement.

[00:20:55] Speaker 02:
And let's look at this claim and try to find claiming the illusion of movement.

[00:21:02] Speaker 02:
It's not in receiving a first indication of a first starting point.

[00:21:06] Speaker 02:
It's not in the next one receiving through the user interface an indication of a nonlinear pathway.

[00:21:11] Speaker 02:
It's not in selecting a first set of pixels, shifting pixel animation, isn't it?

[00:21:17] Speaker 02:
It can be similar to animation.

[00:21:19] Speaker 02:
I won't argue with that.

[00:21:21] Speaker 02:
But this whole combination, shifting the first set of pixels is not a claim to giving the perception of movement in a digital picture.

[00:21:30] Speaker 02:
It's just not.

[00:21:31] Speaker 02:
It is part of the method that gives us the perception of movement in a digital photo.

[00:21:38] Speaker 02:
But nowhere in this claim does it say this exact abstract idea.

[00:21:45] Speaker 02:
And like all the other

[00:21:46] Speaker 02:
Independent claims in all five patterns, these are all the same.

[00:21:52] Speaker 02:
You can examine all of them.

[00:21:54] Speaker 02:
It nowhere says shifting pixels to create the illusion of movement.

[00:21:59] Speaker 02:
The illusion of movement occurs because you have to do the methods of all these claims.

[00:22:08] Speaker 02:
Assuming we get by the problem with the shifting pixels, how do we do it?

[00:22:14] Speaker 02:
We submit that we can bring evidence to the court to show that somebody skilled in art can do this.

[00:22:20] Speaker 02:
And in fact, a whole lot of people have.

[00:22:22] Speaker 02:
These kind of applications sprung up all over the world after our client put it out on the market.

[00:22:33] Speaker 03:
The hand also says it was done before.

[00:22:36] Speaker 02:
Where does it say that?

[00:22:37] Speaker 02:
I'm sorry, Your Honor.

[00:22:39] Speaker 02:
I haven't seen that.

[00:22:41] Speaker 02:
What's been done?

[00:22:42] Speaker 02:
Oh, there's movement in pictures.

[00:22:45] Speaker 02:
Oh, if we're talking about column one, line 49 of these patents, let's look at that.

[00:23:06] Speaker 03:
It's in column 1 of 017.

[00:23:10] Speaker 02:
OK.

[00:23:11] Speaker 02:
And I think, yeah.

[00:23:12] Speaker 03:
It talks about digital image software tools.

[00:23:16] Speaker 02:
And it talks about additional tools are desirable.

[00:23:21] Speaker 02:
It's aspirational.

[00:23:23] Speaker 02:
It doesn't say it's occurred.

[00:23:25] Speaker 02:
This line is aspirational.

[00:23:26] Speaker 02:
Additional tools are desirable for improving digital images, such as the ability to incorporate movement within an image.

[00:23:34] Speaker 02:
That's aspirational.

[00:23:36] Speaker 02:
It's in the wrong place.

[00:23:37] Speaker 02:
As a patent scrivener, I would not have put it in the background.

[00:23:40] Speaker 03:
Certainly sounds as though it was what was done earlier, right?

[00:23:44] Speaker 03:
Putting it in the background section.

[00:23:45] Speaker 02:
Respectfully, I disagree.

[00:23:47] Speaker 02:
Oh, it's in the wrong place.

[00:23:49] Speaker 02:
As a patent writer, yeah.

[00:23:51] Speaker 02:
But that's not what that line says.

[00:23:52] Speaker 02:
That line says additional tools are desirable, such as the ability to incorporate movement.

[00:24:00] Speaker 02:
That doesn't say that it's been done before.

[00:24:03] Speaker 03:
Okay, we're out of time.

[00:24:05] Speaker 03:
Thank you.