[00:00:04] Speaker 02:
My name is Rob Brunelli.

[00:00:13] Speaker 00:
I'm at the council table.

[00:00:16] Speaker 00:
I'm Brian Carpenter.

[00:00:18] Speaker 00:
We represent Lou Bonnet, patent owner, and the plaintiff below.

[00:00:24] Speaker 00:
Lou Bonnet requests the court reverse the district court's findings on Rule 12C motion.

[00:00:31] Speaker 00:
that all of the patents asserted in this case are invalid under 101.

[00:00:35] Speaker 00:
We're going to start our analysis today with Alice, step two.

[00:00:41] Speaker 00:
Specifically, as this court knows from its opinion in Artrix, where you have a

[00:00:52] Speaker 00:
complaint that has well-pled facts that identify the inventive concept and then provides detail about that inventive concept in the complaint.

[00:01:10] Speaker 00:
That should be accepted by the district court at a 12C motion stage, and that should be the end of the discussion.

[00:01:19] Speaker 00:
Here, we have a complaint with those allegations, but that also includes a declaration from Dr. Almorov, 36 pages, very detailed.

[00:01:36] Speaker 00:
It talks about the state of the art.

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It talks about why these claims, specifically the 753 patent claim one, which is the representative claim we're dealing with here,

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Why that claim and others like it shows an inventive concept.

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If that complaint, including the declaration, is inconsistent with the patent itself, the district court is not obligated to credit what your expert or your complaint say.

[00:02:08] Speaker 03:
Isn't that right?

[00:02:09] Speaker 00:
If it is objectively inconsistent, I think that is correct, Your Honor.

[00:02:15] Speaker 03:
And if what your complaint or your experts say is merely conclusory, then the district court is not obligated to credit it, correct?

[00:02:24] Speaker 03:
Correct.

[00:02:24] Speaker 03:
And if what you put in your complaint or your expert declaration is simply a legal conclusion, district court is not obligated to credit it.

[00:02:34] Speaker 00:
That is, again, true.

[00:02:36] Speaker 03:
And so, isn't all of that what happened here?

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That at the end of the day, when you sift through the lengthy complaint and the declaration, all that's left are things that are either conclusory, legal, or entirely inconsistent with what the patent itself says?

[00:02:56] Speaker 00:
No, I don't believe that to be the case, Your Honor.

[00:02:58] Speaker 03:
Well, give us an example of where that's wrong.

[00:03:01] Speaker 00:
If we look at

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This is from the First Amendment Point, paragraph 62.

[00:03:15] Speaker 01:
Can you give us a page title for that?

[00:03:18] Speaker 00:
Appendix stage 9596.

[00:03:20] Speaker 01:
Thank you.

[00:03:23] Speaker 00:
So we've got paragraphs 60, 61, 62, 3, 4, and 5.

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Paragraph 60 identifies a number of elements that are in a representative claim that then talks about, it identifies those elements.

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Then each of the following paragraphs takes those elements and talks about why it was an inventive concept at the relevant time.

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Remember, this is going back to

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2000, 24 years ago.

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So we have to put our hat on that says we're looking at this from back then.

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Yes, everything that's disclosed here today seems pretty normal.

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This is the way things would happen.

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20 years ago, 25 years ago, this was not normal at all.

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This could not be done.

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Being able to go to a remote server that has content on it, be able to

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characterize that content.

[00:04:25] Speaker 01:
Your view is, that's why you're emphasizing step two, I take it, is because step two is looking at one of the things it looks at, and whether there's an inventive concept, but something that's conventional and routine can't be an inventive concept.

[00:04:37] Speaker 01:
Correct.

[00:04:38] Speaker 01:
Yeah.

[00:04:38] Speaker 01:
So it's good, at least, that step two takes this into account, given the age of the invention.

[00:04:44] Speaker 01:
Correct.

[00:04:45] Speaker 00:
OK.

[00:04:45] Speaker 00:
Yes.

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And I think what happened here is it is commonplace today, 25 years later.

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It was very unique 25 years ago.

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We've got Dr. Almorov providing his opinions as to what was going on 25 years ago.

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We've got the district court judge surplanting what Dr. Almorov, the technician, the technical expert, what was happening, what he knew was happening.

[00:05:20] Speaker 00:
taking all of that, discounting it to zero, and saying, I look at these claims, and I find that they are, there's nothing here.

[00:05:32] Speaker 03:
In your language, the law says to discount it to zero if it's merely the practice of an abstract idea using conventional computer hardware, correct?

[00:05:46] Speaker 00:
That sounds correct, Your Honor.

[00:05:49] Speaker 00:
Yeah.

[00:05:50] Speaker 00:
What I want to point out specifically on this step two, and then we can move to step one, is if we look at appendix page 30, which is page four of the district court's decision, we've got the district court talking about the inventive concept and specifically reciting the secured mail solutions versus universal wild case.

[00:06:19] Speaker 00:
And in that case, this court ultimately affirmed a decision where... Can I ask you something?

[00:06:25] Speaker 01:
I just want to make sure I understand.

[00:06:28] Speaker 01:
For the inventive concept, what is the inventive concept that you're focusing on right now in the context of your argument?

[00:06:34] Speaker 01:
Is it the playlist generator?

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Or is it the ordered combination?

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It's the ordered combination, yeah.

[00:06:41] Speaker 00:
Playlist generators, I understand the technology being existed.

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They didn't exist in this form.

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You could generate a playlist, but not like this.

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You have a remote server that has content on it.

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You've got a user device and you've got a backend system.

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And the user device needs to be able to access the content on the remote one or more servers.

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And you've got the backend system that is able to identify where the content is on the one or more servers.

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and you've got the user device communicating with the back-end system.

[00:07:27] Speaker 00:
Once you're at the back-end system, it is focusing on a ratings system, and then the ratings system has its own three components that are required to... So what is not routine about that?

[00:07:42] Speaker 02:
The way you do it, which I think is Judge Starkman had been hinting at,

[00:07:46] Speaker 02:
isn't that including the abstract idea that you don't put in play when you're evaluating the concept itself.

[00:07:54] Speaker 02:
Well, you're saying it's invented because nobody ever did this abstract idea before.

[00:08:02] Speaker 00:
No, it's invented because of the unique distributed architecture that's laid out in the claim, that's specifically required by the claims.

[00:08:12] Speaker 00:
You have to have your

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Your user device has to be able to communicate very specific types of information to the backend system, which then captures that information, stores it electronically, and then is able to take that information

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It also, this back-end system also knows where the content of interest is located.

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Take that and have it in its data banks as well.

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And then have the back-end system, the rating system, ultimately identify the locations of the relevant content that the user wants.

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have it packaged, and then have it sent back to the user device.

[00:09:02] Speaker 00:
That's all very specific.

[00:09:04] Speaker 02:
It's specific.

[00:09:08] Speaker 02:
That's the issue.

[00:09:17] Speaker 00:
No.

[00:09:18] Speaker ?:
No.

[00:09:19] Speaker 00:
It's this concept of being able to go between

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It's more than the concept.

[00:09:29] Speaker 00:
It's the requirement that you have to go between all these various devices in an order that allows for the invention to be achieved.

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You cannot achieve the generated playlist desired by the user without the ordered combination of all these elements.

[00:09:50] Speaker 00:
And the claim specifically calls them out.

[00:09:52] Speaker 03:
I have a quick claim construction and a quick transfer question for you.

[00:09:55] Speaker 03:
On claim construction, because the claims were already construed in Texas before the case went to California, you say there was no procedure in place to facilitate resolution of claim construction disputes that I guess you want us to think only arose after you got to California.

[00:10:13] Speaker 03:
I don't understand that, that there's no procedure in place to facilitate resolution.

[00:10:18] Speaker 03:
Did you even ask the district judge, hey, can we do some more claim construction in order to give you what you need to resolve the 101 motion?

[00:10:36] Speaker 00:
I believe it came up in the scheduling conference, but I may be misremembering.

[00:10:41] Speaker 03:
All right.

[00:10:44] Speaker 03:
What is it that you mean that there is no mechanism?

[00:10:46] Speaker 03:
There is nothing stopping you from asking, was there?

[00:10:49] Speaker 00:
No.

[00:10:50] Speaker 00:
It could have been asked.

[00:10:51] Speaker 00:
But we didn't know there was a clue.

[00:10:53] Speaker 00:
So the posture here was we're in Texas.

[00:10:56] Speaker 03:
Right.

[00:10:57] Speaker 03:
You didn't know until they filed their motion for judgment on the pleadings.

[00:11:00] Speaker 00:
And at that point, we were down the road.

[00:11:02] Speaker 00:
At that point, we didn't ask for claim construction.

[00:11:06] Speaker 03:
Okay.

[00:11:07] Speaker 03:
And now on transfer, I haven't seen this procedural situation before.

[00:11:12] Speaker 03:
It's an odd one where we've granted the mandamus and now you're on appeal from losing in the transferee court.

[00:11:19] Speaker 03:
It would seem to me the only way you could get review of that would be to ask us not to reach the merits of your appeal, but to remand back to the Northern District of California to make your transfer argument.

[00:11:35] Speaker 03:
Maybe you win, maybe you lose, and then you come back and press your appeal if you're unhappy with it.

[00:11:42] Speaker 03:
I don't see how we can decide ourselves now to transfer a case that's completed.

[00:11:52] Speaker 00:
I believe you are correct the way you've approached it.

[00:11:54] Speaker 03:
And is that what you're asking us to do, not reach 101 and just go right to the transfer issue and remand it?

[00:12:00] Speaker 03:
No.

[00:12:00] Speaker 03:
OK, thank you.

[00:12:12] Speaker 04:
Let me just start off by answering the question the court posed to counsel regarding requesting more claim construction.

[00:12:24] Speaker 04:
The answer is no.

[00:12:26] Speaker 04:
And in fact, during, I think it was the case management conference,

[00:12:29] Speaker 04:
Blue Bonnet actually stated that no more claim construction was necessary, that the Texas court had done a, had thoroughly considered the issues and had a hearing on the argument and reached the correct constructions.

[00:12:45] Speaker 04:
That was what was represented to the California court during the case management conference immediately after transfer.

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And then there was no request by Blue Bonnet at any time during the, I think it was about six to seven months, if not more, period, that we had two motions for judgment on the pleadings, as well as motions to amend pending.

[00:13:08] Speaker 04:
And coming back, I just want to address the notion that there's the ordered combination as the inventive concept.

[00:13:15] Speaker 04:
First of all, there is no claim construction on an ordered combination.

[00:13:18] Speaker 04:
There also was no request for claim construction.

[00:13:23] Speaker 04:
But nevertheless, Council kind of touched on it.

[00:13:27] Speaker 04:
The order of the steps as they appear in the claims are the necessary order to just implement the abstract concept.

[00:13:36] Speaker 01:
What about the conventionality of those kinds of networks at the time of the invention?

[00:13:43] Speaker 01:
Even though the invention was a long time ago,

[00:13:46] Speaker 01:
What about the conventionality of having a computer, a server, and a back end?

[00:13:52] Speaker 01:
I mean, I guess I might have that wrong on what the elements are, but you understand what I'm saying.

[00:13:57] Speaker 04:
I do understand, Your Honor.

[00:13:59] Speaker 04:
They were conventional.

[00:14:00] Speaker 04:
In fact, the specification itself just describes using any general purpose computer.

[00:14:06] Speaker 04:
But the whole network.

[00:14:09] Speaker 01:
He was emphasizing

[00:14:11] Speaker 01:
the structure of the network.

[00:14:13] Speaker 01:
And maybe it was that he was emphasizing it for the purposes of streaming music.

[00:14:17] Speaker 01:
But I want to understand your view on the network as opposed to just a computer system.

[00:14:23] Speaker 04:
Sure.

[00:14:23] Speaker 04:
There's actually two different answers to it.

[00:14:25] Speaker 04:
So in the specification, there's a section entitled Distributed Architecture.

[00:14:30] Speaker 04:
In that section, the specification talks only about the play.

[00:14:35] Speaker 04:
It's also referred to as the playback architecture, playback distribution architecture.

[00:14:40] Speaker 04:
In that section, it's talking about crawling the internet and finding songs that are posted on random websites all over the internet and using that as the source of music that you will then play back to users.

[00:14:53] Speaker 04:
That's not what we're dealing here with.

[00:14:54] Speaker 04:
That's not what's in the claims, and it's certainly not what Pandora does.

[00:14:58] Speaker 04:
It's not accused of infringement.

[00:15:01] Speaker 04:
And that is what the specification describes as distributed architecture.

[00:15:05] Speaker 04:
In its briefing, Blue Bonnet focuses significantly on the five distinct hardware devices that it says exist in the claims.

[00:15:15] Speaker 04:
And it says that those are distributed, and that there's a front end, middle, first front end, back end, and I'm blanking on one thing.

[00:15:24] Speaker 01:
Of course, we should be looking at the claims.

[00:15:26] Speaker 01:
Right.

[00:15:27] Speaker 01:
Right?

[00:15:27] Speaker 01:
I mean, there are some lame references to internet, but it doesn't specify this element talks to this element, five elements talking over the internet.

[00:15:35] Speaker 04:
Right, and the claims themselves, you have the playback interface, which is the client device.

[00:15:41] Speaker 04:
And the patent describes it as a general purpose computer or a smartphone.

[00:15:46] Speaker 04:
And then it sends rating information that the user inputs to what's referred to as, it doesn't call it in the claims, the backend, but the rating component.

[00:15:55] Speaker 04:
And the rating component stores that in a database, and then that data is then used by the playlist generator to generate playlists.

[00:16:04] Speaker 04:
All of those, those are the separately listed elements of the claims.

[00:16:09] Speaker 04:
Now, if you look back at the specification, it describes each of those as a module.

[00:16:14] Speaker 04:
It says playback, I'm sorry, playlist generator module, or rating module, or rating component module, and the specification expressly defines modules.

[00:16:28] Speaker 04:
And I'm looking for the site for that.

[00:16:31] Speaker 04:
It is Appendix 76, Column 11, 42 to 48, lines 42 to 48.

[00:16:42] Speaker 04:
And what it defines as a module is pretty much anything.

[00:16:46] Speaker 04:
It says it can be hardware or software or a combination of both.

[00:16:50] Speaker 04:
And it expressly states that the modules can be separate from each other or the modules can be combined.

[00:16:56] Speaker 04:
And they can be combined on the same hardware or in the same program.

[00:17:00] Speaker 04:
And so the notion that the claims themselves, the claim limitations,

[00:17:05] Speaker 04:
require separate hardware devices just simply isn't supported by the specification.

[00:17:10] Speaker 04:
The specification describes them as modules which could be hardware, could be software, and they all could be on the same piece of hardware.

[00:17:17] Speaker 03:
Would it make a difference to the 101 analysis if

[00:17:22] Speaker 03:
the claims were construed as five separate pieces of hardware?

[00:17:25] Speaker 04:
I don't think so, Your Honor, and I'm happy to address that.

[00:17:28] Speaker 04:
The reason why I'm focused on it is because that is the basis for Blue Bonnet's notion that there is an inventive concept.

[00:17:35] Speaker 04:
The premise of their position is that there's five hardware devices and then those are distributed, and that's just simply not the case with the claims.

[00:17:42] Speaker 01:
But there are some things that are distributed, clearly, in this claim.

[00:17:45] Speaker 01:
I mean, right?

[00:17:46] Speaker 01:
I mean, if you disagree with me, but it says, for example, the reading component receives via the internet,

[00:17:52] Speaker 01:
the rating from the media streaming media clips rating system.

[00:17:55] Speaker 01:
So there's some network aspect to this claim.

[00:18:00] Speaker 04:
Correct and I'm sorry if I wasn't clear before.

[00:18:03] Speaker 04:
You have the client device.

[00:18:04] Speaker 01:
My question to you was what evidence do you have that at the time of the invention this was conventional?

[00:18:10] Speaker 01:
I just, that's what I wanted to know.

[00:18:12] Speaker 04:
So what the claims have are a client device, there's the internet in between, and then there's server.

[00:18:19] Speaker 04:
That is the basic architecture of the internet.

[00:18:22] Speaker 04:
The internet runs on servers.

[00:18:24] Speaker 04:
And in fact, I even think that the specification talks about using standard servers.

[00:18:32] Speaker 04:
So it itself admits that the existence of servers and client devices predate the patent itself.

[00:18:40] Speaker 04:
But just the sheer notion of having

[00:18:44] Speaker 04:
A client device interacting with a server is the foundation of an internet webpage.

[00:18:49] Speaker 04:
That's how they're generated and how they're viewed.

[00:18:55] Speaker 03:
And just briefly, what difference, you say it wouldn't make a difference if it was five pieces of distributed architecture, why not?

[00:19:02] Speaker 04:
So the notion that Bluebonnet has raised is that it somehow solves a scalability issue.

[00:19:10] Speaker 04:
And when you have just different, it has a database, a ratings component, I'm sorry, the rating component, and a playlist generator.

[00:19:23] Speaker 04:
It's a conclusory statement to say that somehow allows it to scale.

[00:19:28] Speaker 04:
There's been no explanation about how having those three devices separate actually contributes to scalability or allows it to handle a large volume of music.

[00:19:38] Speaker 04:
The large volume of music is just a sheer data issue with where you're going to store all of that.

[00:19:45] Speaker 04:
And the specification refers to that as a remote, I mean, sorry, the claims refer to that as a remote server.

[00:19:52] Speaker 04:
The architecture of scalability that Bluebonnet contends is relevant here in inventive concept, would require that remote server to be scaled in various servers all over the internet, as the specification describes the internet crawling feature.

[00:20:09] Speaker 04:
But that's just not what the claims say.

[00:20:11] Speaker 04:
And that's not, if you treat that as a single hardware component, that's not what Bluebonnet's arguing either.

[00:20:17] Speaker 03:
At step two, your friend points us to, for example, paragraphs 60 through 65.

[00:20:25] Speaker 03:
Is there, without having to hopefully march through the detailed allegations in each of them, what's your response to why those are not taken as true out of rule 12 enough to at least get him past the motion?

[00:20:43] Speaker 04:
Yeah, I think I can do it quickly.

[00:20:45] Speaker 04:
60 is just identifying the various five elements.

[00:20:49] Speaker 04:
61 is referring to the remote server, and that is just a single hardware device.

[00:20:58] Speaker 04:
In blue-blond its eyes, I don't even think it constitutes that, but it is not a multi-server hardware device, multiple hardware devices, and therefore it just doesn't even follow the description and the specification.

[00:21:13] Speaker 04:
62 deals with the playlist generator.

[00:21:17] Speaker 04:
I mean, they're just saying here that that's a novel idea.

[00:21:22] Speaker 04:
But the only thing that's disclosed in the specification is the concept of having a general purpose computer, server, whatever, perform the functionality that's described.

[00:21:34] Speaker 04:
There's no actual new system that's described.

[00:21:37] Speaker 04:
It doesn't, you know,

[00:21:39] Speaker 04:
Nothing is provided and put into the claims that actually makes that something that's new.

[00:21:46] Speaker 04:
It's just taking ratings and generating playlists.

[00:21:49] Speaker 04:
63 is referring to the inverted conventional media distribution paradigms.

[00:21:56] Speaker 04:
This goes back to what the specification does refer to as the distributed architecture, which is crawling the internet for the various music files and playing them from the servers.

[00:22:08] Speaker 04:
If the Court of Appeals of the Federal Circuit had an audio file on its website, that could serve as an audio file that is played through these playlists.

[00:22:19] Speaker 04:
And that's just not at all what the claims are about.

[00:22:22] Speaker 04:
And then 64 is referring to the combination, and I think I've already addressed the combination point.

[00:22:34] Speaker 04:
Paragraph 65 is actually about the client side and having a playback interface that allows for the acceptance of ratings.

[00:22:42] Speaker 04:
And again, that's not the invention of the whole.

[00:22:45] Speaker 04:
That's just saying that there hasn't been an individual interface that allows for this.

[00:22:53] Speaker 04:
And novelty alone of one individual

[00:22:56] Speaker 04:
element isn't the standard here.

[00:22:59] Speaker 04:
It's whether the, when we're talking about step two, it's whether what's disclosed in the specification and as claimed actually is an inventive concept and you're looking at what the abstract idea is and takes it out of that zone.

[00:23:18] Speaker 04:
And so the fact that, I mean, it's wrong but accepting it as true, that there was not a

[00:23:28] Speaker 04:
an interface that allows you to have submit ratings.

[00:23:33] Speaker 04:
The claims don't actually talk about anything more than a general purpose computer or PC that performs that function.

[00:23:42] Speaker 04:
And that sort of functional claiming doesn't satisfy the requirement for step two.

[00:23:50] Speaker 03:
Just one last question.

[00:23:52] Speaker 03:
They have an interesting point that

[00:23:55] Speaker 03:
uh... you don't make any analogies and i think the district court doesn't to any similar one-on-one cases we have a lot of one-on-one cases now uh... i don't know that we've ever said you have to use analogies but we have said it's a very useful tool and we usually do is there a reason that you're not trying to analogize this case to any other one-on-one cases uh... i agree that i don't believe it's a requirement uh...

[00:24:23] Speaker 04:
Thinking back to it, I don't think there's any particular reason one way or the other.

[00:24:27] Speaker 04:
I do think that the district court's citing of the TLI communications case is pretty on point.

[00:24:35] Speaker 04:
But at the same time, I think when you're looking at, from my perspective, a lot of the cases, when you talk about what makes a set of claims invalid under 101,

[00:24:52] Speaker 04:
It is just the notion of collecting and processing data.

[00:24:55] Speaker 04:
And these claims plainly do that.

[00:24:57] Speaker 04:
And so to me, the notion of the idea that they were, the claims were, and that comprised an abstract idea under 101 seemed pretty straightforward to me.

[00:25:11] Speaker 04:
And I think that the step two analysis and whether it was the bigger issue here, and I think that was more about going through the pleadings,

[00:25:21] Speaker 04:
and addressing what's actually disclosed and how that relates to the claims.

[00:25:45] Speaker 00:
The only evidence in the record, and it was tied to the First Amendment complaint, is the Almirath Declaration.

[00:25:53] Speaker 00:
And it says what it says.

[00:25:56] Speaker 00:
What I'm hearing is, put word or words within representative claim one kind of drives this home.

[00:26:05] Speaker 00:
And I think those words are automatically and dynamically

[00:26:10] Speaker 00:
Those words, me, and they are associated with the generator playlist.

[00:26:15] Speaker 00:
The playlist has to be automatically generated, and it has to be dynamically generated both.

[00:26:24] Speaker 00:
What does that mean?

[00:26:26] Speaker 00:
Again, it goes back to the interaction between all these various hardware components.

[00:26:31] Speaker 00:
But it's not a one-time deal.

[00:26:34] Speaker 00:
there has to be this interoperability between the various components.

[00:26:40] Speaker 00:
I think that is the language that takes this out of the abstract idea and into an inventive concept.

[00:26:51] Speaker 00:
The cases that we would

[00:26:55] Speaker 00:
have this panel focus on in doing the analogy would be the MDocs versus Opnet case, the DDR Holdings case, DDR Holdings versus Hotels.com.

[00:27:09] Speaker 00:
It's our contention that when that analogy analysis is conducted, these claims that have been found invalid by the district court

[00:27:21] Speaker 00:
should not have been found invalid.

[00:27:23] Speaker 00:
This is a very similar situation, certainly to MDocs.

[00:27:28] Speaker 00:
I'll cede the rest of my time.

[00:27:30] Speaker 02:
Thank you.