[00:00:00] Speaker 03: We have four of these cases this morning. [00:00:02] Speaker 03: The first is number 23, 1578, GeoComply Solutions, Inc. [00:00:08] Speaker 03: versus X-Point Services. [00:00:09] Speaker 03: Mr. Lloyd. [00:00:11] Speaker 04: May it please the Court. [00:00:13] Speaker 04: GeoComply's founder solved an elusive problem in computer networks. [00:00:17] Speaker 04: How to securely and reliably determine online user locations in the face of geolocation spoofing. [00:00:24] Speaker 04: The claims here are directed to her technological advance in solving that problem. [00:00:28] Speaker 04: technology that GeoComply employs in its award-winning products used by household names to prevent online fraud. [00:00:35] Speaker 04: Because Section 101 permits patenting such a technological advance to a technological problem, the court should reverse. [00:00:42] Speaker 04: I'd like to jump straight to the claims at Appendix 58, because I think it's uncontested at this point that spoofing is a technological problem in computer networks. [00:00:53] Speaker 04: The district court says that at Appendix 21, and so does the red brief at page 25. [00:00:58] Speaker 04: And so the core dispute here is whether these claims are properly characterized as identifying a specific advance in solving that problem. [00:01:08] Speaker 00: And they are. [00:01:08] Speaker 04: The claims are based on a computer configuration, a network configuration of three components. [00:01:14] Speaker 04: A user's device, a first server, which is the internet service provider, and a second server, which is the- How does client one [00:01:22] Speaker 03: deal with spoofing as opposed to claims seven and eight. [00:01:26] Speaker 03: I mean, it just says a selected program, any program. [00:01:32] Speaker 04: So I'd like to get to the seven and eight claims at some point. [00:01:39] Speaker 04: But as to claim one, the way it identifies, the way it addresses the problem of spoofing is with three steps. [00:01:46] Speaker 04: Identification of the presence of selected programs, [00:01:49] Speaker 04: generation of a geolocation message that's based on the identified present programs and... Did you ask for a construction of claim one? [00:02:00] Speaker 03: No, but I don't think... I don't understand how selective program gets you to spoofing programs. [00:02:08] Speaker 04: Yeah, let me just step back one second and explain the problem of geolocation spoofing because... I understand the problem. [00:02:15] Speaker 04: I understand the problem. [00:02:19] Speaker 04: I think actually the other side has not stated it as correctly as it needs to be. [00:02:25] Speaker 04: The problem of geolocation spoofing is not that you have inaccurate information about where the device is located. [00:02:32] Speaker 04: You may be very certain that the device is in Philadelphia. [00:02:35] Speaker 04: The problem is that it's exceedingly easy on the internet for users to operate devices remotely. [00:02:41] Speaker 03: I understand. [00:02:41] Speaker 04: So even if you know the devices in Philadelphia, you need to know where the user is. [00:02:46] Speaker 03: How does Plan 1 deal with that? [00:02:47] Speaker 04: The way Plan 1 deals with it is to go beyond just collecting information about where the device is. [00:02:53] Speaker 03: It has a program, any program. [00:02:55] Speaker 04: It collects a specific type of information, which is the presence of selected programs. [00:02:59] Speaker 04: And then it generates a geolocation message based on both. [00:03:02] Speaker 04: And the patent explains, Judge, how that's in advance and how that solves the problem. [00:03:07] Speaker 04: Because when you have the present programs, [00:03:10] Speaker 04: plus the information about where the device is located, then you can do things like create a trust or a reliability score that tells you, here's where the device is, but also here's how confident I am that the user is with the device. [00:03:25] Speaker 04: And yes, it can be specific types of programs which are specified in claims seven and eight, such as a spoofing program or a screen sharing program. [00:03:34] Speaker 04: But I think one of the reasons why the claims and the invention is not [00:03:38] Speaker 04: necessarily limited to just those programs is what the district court recognized. [00:03:42] Speaker 04: This is a cat and mousing game. [00:03:44] Speaker 04: You have users online who are continuously updating and changing how they are trying to evade the problem and how they are conducting spoofing. [00:03:54] Speaker 04: And so in that context, it's important. [00:03:57] Speaker 03: I just don't see how claim one is addressed to them. [00:03:59] Speaker 03: I see how claim seven and eight may be, but I don't see how claim one is addressed to them. [00:04:04] Speaker 04: I think I'll try one more time on claim one, but then I'll switch to claims seven and eight. [00:04:09] Speaker 04: So I think it's just like in SRI or TechSec. [00:04:13] Speaker 04: It's the combination here that provides the advance. [00:04:16] Speaker 04: So in SRI, the claims did not specify what analysis you performed. [00:04:20] Speaker 04: It had to be an analysis performed on certain types of network traffic. [00:04:23] Speaker 04: And then you generated reports based on that analysis. [00:04:27] Speaker 04: But the claims didn't limit the analysis nor the reports. [00:04:30] Speaker 04: And they didn't actually say what you did with the reports. [00:04:32] Speaker 04: Nevertheless, the patent explained [00:04:34] Speaker 04: how collecting that information in the way that it was described in the claims and generating and compiling the reports was an advance in solving the problem of coordinated attacks. [00:04:43] Speaker 04: It's the same here. [00:04:45] Speaker 04: The patent explains how you can use the identification of selected programs with the device's location information to go beyond just saying, this is where the device is, to saying, this is [00:04:56] Speaker 04: Also, I'm confident that the user is with the device. [00:04:59] Speaker 04: But even if you disagree with me on claim one, I do think claim seven and eight are more specific and do identify specific types of programs that would be associated with spoofing it and that can be used. [00:05:10] Speaker 03: Your first problem is the waiver. [00:05:12] Speaker 03: I mean, I didn't see you arguing in your briefs before the district court. [00:05:19] Speaker 03: that this made the idea less abstract. [00:05:24] Speaker 03: You sort of lumped seven and eight in with one. [00:05:28] Speaker 03: And then you didn't really separately argue it as to the judge specifically found at step two. [00:05:33] Speaker 03: So I think you've got a forfeiture problem. [00:05:36] Speaker 04: I think two responses on that, Judge. [00:05:38] Speaker 04: First, the district court found forfeiture only at step two. [00:05:42] Speaker 03: It did not say- I understand, but you didn't argue it separately at step one. [00:05:47] Speaker 04: And so on that point, we did argue separately at step one. [00:05:51] Speaker 04: And so first, I think if you look at what the other side said, it's their burden. [00:05:56] Speaker 03: And their burden on all claims. [00:05:59] Speaker 04: So theirs is at 227 to 228. [00:06:03] Speaker 04: And all they say there is the dependent claims add nothing new, and then they quote the claim language. [00:06:07] Speaker 04: So that's what we were responding to. [00:06:09] Speaker 04: And our response is at page 311, appendix 311. [00:06:16] Speaker 04: And this is in our ALICE step one. [00:06:20] Speaker 03: All you've got is this footnote one here. [00:06:23] Speaker 04: No, it's the text and the footnote. [00:06:25] Speaker 04: So it's the top paragraph there. [00:06:27] Speaker 04: We start the paragraph. [00:06:28] Speaker 04: Geo-compliant methods also involve collecting and analyzing information that lends context to the geolocation data. [00:06:34] Speaker 04: So it's explaining, we're not just looking at where is the device located. [00:06:37] Speaker 04: We're adding context. [00:06:38] Speaker 04: And then it says, instead of accepting the geolocation data at face value, [00:06:42] Speaker 04: The method entails identifying that one or more selected programs, such as geolocation spoofing programs, are present on the user device. [00:06:49] Speaker 04: These programs may include a proxy application or a screen sharing program. [00:06:53] Speaker 04: In that paragraph, we call out only four claims. [00:06:55] Speaker 04: The two independent claims, claims one and 10, and then claim seven and eight specifically. [00:06:59] Speaker 04: And we're not just quoting the language. [00:07:01] Speaker 03: Where do you explain that it does identify what the claims say, but where does it say that that makes them not abstract? [00:07:12] Speaker 04: I think it's two parts. [00:07:15] Speaker 04: One is it's what we're responding to, which was just a blanket assertion that the claims add nothing. [00:07:19] Speaker 04: And then two, it's the context of this paragraph as a whole, which is explaining how the invention adds context to just, I know geolocation data about the device. [00:07:29] Speaker 04: I need something more. [00:07:30] Speaker 04: And the way it adds context, it specifically points to claims seven and eight as adding that important context that amounts to a technological advance in solving this problem of swooping. [00:07:39] Speaker 04: And then there is the footnote. [00:07:41] Speaker 04: Judge Icke as well, which specifically says we disagree with treating these claims as representative in the context of what we were responding to, which was just a blanket assertion that all claims could rise and fall together. [00:07:52] Speaker 04: I think this was sufficiently specific. [00:07:54] Speaker 04: The district court never disagreed with that. [00:07:56] Speaker 04: It only said at step two that it didn't see an argument about claims seven and eight, and I think [00:08:02] Speaker 04: So that was not the basis of the district court's decision. [00:08:05] Speaker 04: And I think it's not a basis for a decision here. [00:08:09] Speaker 04: I do want to also address step two. [00:08:12] Speaker 04: I think the technological advance to a technological problem shows that we're sufficiently inventive or that we're not abstract at claim one. [00:08:20] Speaker 04: But it also shows that there's an inventive concept here. [00:08:25] Speaker 04: I think DDR and Cosmo Key are on-point examples where the court has recognized [00:08:30] Speaker 04: that you can have an inventive concept that comes from the combination of steps. [00:08:35] Speaker 04: And here, it's the combination. [00:08:36] Speaker 04: It's identifying the presence of selected programs on the device and generating a geolocation message that's based on both of the device geolocation data and the identified programs. [00:08:47] Speaker 04: That is the advance that allows you to get beyond just knowing here's where the device is to knowing how confident I can be that the user is with the device. [00:08:59] Speaker 04: The patent on its own, I think, makes clear that's an inventive concept. [00:09:03] Speaker 02: Is achieving that result anything other than just using conventional programming? [00:09:11] Speaker 04: Yes. [00:09:12] Speaker 02: You're basically saying, here's what it does. [00:09:14] Speaker 02: But the question is, is it affecting the functionality of these devices in any way? [00:09:20] Speaker 02: In a technical way? [00:09:22] Speaker 04: Yes, Judge Cleverger. [00:09:23] Speaker 04: It's improving the computer network itself. [00:09:25] Speaker 04: I think that a complaint at paragraphs 12 and 13 in Appendix 72 makes clear prior to our approaches. [00:09:33] Speaker 02: Wouldn't that just mean that any conventional software improves the computer? [00:09:38] Speaker 02: No, I think... What's specific about this software that tells the computer to do something it didn't otherwise want to do or that is extremely unconventional? [00:09:50] Speaker 04: So I think it's specific in two ways. [00:09:52] Speaker 04: One, it's rooted in this problem that is a problem specific to computer networks, which is that you can easily operate devices remotely. [00:10:00] Speaker 02: And then two, it requires specific order of steps that are designed to... Are you using conventional software to solve complicated problems, as many cases in the past has been rejected as a ground for satisfying step two? [00:10:13] Speaker 04: Judge Conninger, I think the key here... Am I right about that? [00:10:17] Speaker 04: I think there are cases on both sides, Judge Covinger, that certainly if all you're doing is using routine technology, computer technology, in the way that it's been used, then yes, that's abstract and not inventive. [00:10:31] Speaker 04: But this court has been clear that unconventionality can be in the combination. [00:10:37] Speaker 04: And that's the key here. [00:10:40] Speaker 04: We have not said that. [00:10:42] Speaker 04: identifying programs on its own, that this is some better way to identify programs on a device. [00:10:48] Speaker 04: What we have said, and I think maybe a helpful example, is this one. [00:10:53] Speaker 01: We haven't invented a specific way to identify proxy programs or anything like that. [00:11:00] Speaker 01: No, we've invented a specific way. [00:11:02] Speaker 01: We've come up with the idea, this is one way of determining whether a user is operating something remotely. [00:11:10] Speaker 04: We've invented a specific way of dealing with the problem of geolocation spoofing, which is maybe similar to what you're saying, but not exactly the same in that. [00:11:20] Speaker 01: You don't want me to use the word idea. [00:11:22] Speaker 01: You want to use the word way. [00:11:24] Speaker 01: Because if it's an idea, it's abstract. [00:11:26] Speaker 04: I think the difference that the court's cases make clear between whether you're just claiming a result or whether you're claiming a way to solve the problem is when [00:11:36] Speaker 04: is when you just claim the basic steps that would necessarily be a part of any solution. [00:11:46] Speaker 01: if we disagree with you at step one that these are all just abstract ideas and you haven't identified anything specifically eligible, why, you know, using abstract ideas in a particular way is patent eligible? [00:12:01] Speaker 04: I think the answering that question starts with what is the abstract idea. [00:12:05] Speaker 04: And the district court said the abstract idea was just [00:12:07] Speaker 04: determining a device's location using multiple types of information or using the device location information. [00:12:14] Speaker 01: Do you agree that's abstract? [00:12:17] Speaker 04: I think that could be abstract, but that's not actually what's going on here. [00:12:21] Speaker 04: We're not determining just the device's location. [00:12:24] Speaker 04: That's the problem with spoofing. [00:12:26] Speaker 03: When you have spoofing, if all you do is... So we'd be clear about this. [00:12:30] Speaker 03: Putting aside the supposed solution to the spoofing problem and just [00:12:37] Speaker 03: identifying the location, that itself is abstract, right? [00:12:41] Speaker 03: And not patent eligible. [00:12:43] Speaker 03: I mean, we've said that in our non-precedential decision. [00:12:48] Speaker 04: There are cases dealing with location. [00:12:51] Speaker 03: Are you challenging that? [00:12:52] Speaker 03: Are you saying that identifying location is itself patent eligible? [00:12:57] Speaker 04: No, I'm saying this case is different. [00:12:59] Speaker 03: Wait. [00:13:00] Speaker 03: Yes or no? [00:13:02] Speaker 04: No, I'm not challenging this court's conclusions in those cases, Judge Dyke. [00:13:06] Speaker 04: I'm challenging that this case is like those cases. [00:13:09] Speaker 04: Because in this case, we're not simply saying use more information. [00:13:12] Speaker 03: You're saying that this is different because of the spoofing aspect. [00:13:16] Speaker 04: Because there's a computer network specific problem and the claims identify a way of solving that. [00:13:22] Speaker 03: It's not a technological problem. [00:13:24] Speaker 03: As my colleagues have said, there's no [00:13:26] Speaker 03: change in computer programming that's disclosed here, right? [00:13:30] Speaker 04: It's a technological problem in the same way SRI presented a technological problem. [00:13:34] Speaker 04: People are taking advantage of the way networks are configured that make it very easy to remotely operate devices to conceal their identity or, sorry, their location. [00:13:43] Speaker 03: But it is correct, is it not, that there's no change to computer programming? [00:13:48] Speaker 04: There's a change, the unconventionality here is an improvement in the computer network itself, akin to SRI. [00:13:54] Speaker 01: I don't understand that at all. [00:13:55] Speaker 01: Isn't the only change is you determine that there's a number of programs like proxy programs and other things that are indicators that something nefarious is going on and that the device might be operated remotely. [00:14:11] Speaker 01: So you're just programming it to look for those. [00:14:15] Speaker 01: those programs. [00:14:16] Speaker 04: You're combining that information with the device's location to identify the potential fraud. [00:14:20] Speaker 04: But that's just exactly what this court upheld in SRI. [00:14:24] Speaker 04: It was the same thing. [00:14:26] Speaker 04: People were taking advantage. [00:14:27] Speaker 04: Users took advantage of the nature of the network to create problems with coordinated attacks. [00:14:33] Speaker 04: And the claims identified a specific way to resolve that, and to the point about specificity. [00:14:39] Speaker 04: I think that what this court has said about whether you're just claiming a result [00:14:43] Speaker 04: or whether you're claiming a way to solve it, is that when all you do is claim the basic steps that would be part of any solution to the problem, then you're claiming the result. [00:14:54] Speaker 03: I look at your brief, and I don't see any of that in here. [00:14:59] Speaker 03: I just don't see that you made this argument. [00:15:04] Speaker 03: articulate way that you've just made it to the district court, either at step one or step two. [00:15:10] Speaker 03: And that's a problem. [00:15:12] Speaker 04: So I think the district court certainly understood that our argument was that geolocation spoofing is a network-specific problem. [00:15:21] Speaker 04: In fact, the district court agreed with that at appendix 21. [00:15:23] Speaker 04: And then the district court understood we were arguing that this was a solution to that problem. [00:15:28] Speaker 04: I think where the district court got it wrong was in saying that the abstract idea [00:15:34] Speaker 04: was just making a better determination about the device's location, because that overlooks the problem of spoofing, which is going beyond the device's location to figure out where the user is. [00:15:46] Speaker 04: And just to, I see I'm into my rebuttal time, but just to finish the point, this case is not like Dropbox, where the problem was access control, and you just claimed an access control checker. [00:15:57] Speaker 04: We did not claim a spoofing detection module, or just a bare step [00:16:02] Speaker 04: determining whether spoofing is present, we claimed one way of identifying spoofing, a very effective way, which was to look at the present selected programs on the device and combine that with the device data. [00:16:14] Speaker 03: All right. [00:16:14] Speaker 03: We're out of time. [00:16:15] Speaker 03: We'll give you two minutes. [00:16:16] Speaker 03: Mr. Swanson. [00:16:21] Speaker 00: Thank you. [00:16:22] Speaker 00: It may please the court, Peter Swanson from Covington in Berlin on behalf of Defendant Appellee Expoin Services. [00:16:28] Speaker 00: The district court in this case correctly concluded that the claims of the geocomplied [00:16:32] Speaker 00: fail to recite a patent-eligible invention under Section 101. [00:16:36] Speaker 00: The claimed advance is the collection and exchange of information, specifically the identity of programs on a device. [00:16:44] Speaker 00: The claims do not recite any improved method for collecting this data, nor do they provide for any meaningful analysis of the data once it is collected. [00:16:52] Speaker 00: They simply recite using it in an unspecified way for geolocation purposes. [00:16:56] Speaker 00: The result is not an improved computer, but rather a larger set of information. [00:17:01] Speaker 00: This falls squarely within the court's precedent, holding that claims directed to information gathering and analysis do not satisfy Section 101. [00:17:10] Speaker 00: The judgment should therefore be affirmed. [00:17:12] Speaker 00: At ALICE Step 1, the district court correctly held that Claim 1 is directed to the abstract idea of, quote, determining the location of a device based on geolocation information and programs present on the device, end quote. [00:17:26] Speaker 00: This is an abstract idea. [00:17:27] Speaker 00: It's better not to read your argument. [00:17:30] Speaker 00: Yes, Your Honor. [00:17:31] Speaker 00: That characterization of the claims is an accurate characterization of the claims, and it's an abstract idea for the reasons... Well, I think your friend says it's not just about determining the device's location, but the user's location, that sometimes the two aren't the same. [00:17:47] Speaker 01: If that's the case, why isn't that an improvement in technology? [00:17:53] Speaker 00: Yeah, that argument, I think, was made for the first time here today. [00:17:57] Speaker 00: I did not see that in the briefs on appeal or in the district court. [00:18:01] Speaker 00: And I'm not quite sure I followed that argument. [00:18:04] Speaker 00: But we do think that the purpose of the claims here is determining location. [00:18:14] Speaker 00: And the way they do that is by collecting some data. [00:18:20] Speaker 00: They don't provide any specific [00:18:22] Speaker 00: method for or improvement for how that data is collected. [00:18:27] Speaker 00: And they don't even provide any real analysis of the data once it is collected. [00:18:33] Speaker 00: It just says, yeah, there's some more data that might be relevant to determining a person or a device's location. [00:18:43] Speaker 01: They seem to rely heavily on our SRI case. [00:18:46] Speaker 01: Do you want to address that? [00:18:48] Speaker 00: Yes, Your Honor. [00:18:49] Speaker 00: SRI is distinguishable because they're [00:18:52] Speaker 00: The claims were directed to a specific technique that required these multiple network monitors to look for suspicious activity and then generate reports using these other hierarchical network monitors. [00:19:09] Speaker 00: This court found that that was a specific technique directed to identifying intrusions into a network. [00:19:17] Speaker 00: And it changed the way the network itself operated. [00:19:22] Speaker 00: GeoComply's claim has not improved the way in which programs are identified, spoofing or otherwise. [00:19:31] Speaker 00: And I think that's a key distinction between SRI and this case. [00:19:35] Speaker 00: The invention in SRI was these collections of network monitors, which were not alleged to be, as far as I know, from the case conventional. [00:19:46] Speaker 00: Here, GeoComply is just taking this conventional functionality for identifying programs. [00:19:51] Speaker 00: and applying it to the context of geolocation. [00:19:55] Speaker 00: There also, in SRI, I think was more analysis in the claims that there actually was some suspicious activity going on. [00:20:03] Speaker 00: That's not happening in the geocomply claims. [00:20:05] Speaker 00: It just says, identify programs. [00:20:07] Speaker 00: It doesn't say what to do about those programs. [00:20:10] Speaker 00: It doesn't say anything about how do you know if the spoofing programs are actually being used to spoof location, or are they just there, but they're not actually in use? [00:20:20] Speaker 00: there's none of that detail in the claims. [00:20:23] Speaker 00: And I think the third distinction is in the GeoComplite claim, it's not actually changing the functioning of a computer. [00:20:32] Speaker 01: Would it make any difference if the claims laid out how they were going to use this list of programs and say, [00:20:39] Speaker 01: and to determine whether, for instance, the proxy program was currently running at the time in the context. [00:20:48] Speaker 01: I mean, a lot of this is obviously gambling outside of states where you can do it. [00:20:53] Speaker 01: Would it have made any difference if they laid out some kind of algorithm that says the [00:21:00] Speaker 01: the one processor looks to determine whether a proxy is running on the user's device. [00:21:05] Speaker 01: If it is, then it follows some other steps to make sure that that user is actually in the location he or she claims to be or is in some other location. [00:21:18] Speaker 00: Yes, Your Honor. [00:21:18] Speaker 00: I think that would be the type of advance that would need to be recited in the claims in order for them to be patent eligible. [00:21:26] Speaker 00: Alternatively, if they had come up with a [00:21:28] Speaker 00: a better way and claimed a better way of actually identifying the programs itself as opposed to just using conventional technology for detecting programs. [00:21:39] Speaker 00: That could be another way in which the claims might have been patent eligible. [00:21:45] Speaker 00: Instead, as I mentioned, the claims are just directed to gathering information itself. [00:21:52] Speaker 00: Is this court held in [00:21:54] Speaker 00: Cases like Zillow and Electric Power Group and Betero, claims directed to the mere gathering, transmission, and analysis of information, as opposed to the way in which information is gathered, transmitted, or analyzed, are not patent-eligible. [00:22:13] Speaker 00: And that's what we have here. [00:22:17] Speaker 02: When I pose it, [00:22:22] Speaker 02: know from just the term proxy programs what exactly people are talking about. [00:22:30] Speaker 02: I believe at the time that Pat and I would be able to say, if you look in claims seven or eight, whichever one it is, a proxy program, we know what you're talking about, like shelf product. [00:22:41] Speaker 02: We know what the algorithms would be to drive it. [00:22:46] Speaker 00: I do think there were no, yes sir, I think there were no proxy programs. [00:22:50] Speaker 02: Then why would you have any more specificity than that in the claim? [00:22:54] Speaker 02: I think one issue is... If that's known, then writing a claim to having proxy programs being used in this would seem to be sufficient. [00:23:06] Speaker 00: I think the problem is they didn't come up with a way of identifying a proxy program or [00:23:14] Speaker 02: Are they shelf products or proxy programs, things you can go buy? [00:23:22] Speaker 00: I believe so, yes. [00:23:23] Speaker 02: So you just go and get the tech manual for a particular proxy program and you've got it and oppose it would know all of that. [00:23:32] Speaker 00: I believe the issue here isn't the technology here. [00:23:38] Speaker 02: And claim one talks about using programs, right? [00:23:43] Speaker 02: looking for programs in the user's device? [00:23:47] Speaker 00: Yes. [00:23:48] Speaker 03: Yes, sir. [00:23:49] Speaker 03: Are you looking to see whether the program is available in the user's device or that the program is actually at the time being used in the device? [00:23:57] Speaker 00: I think that's the specificity that the claim is lacking. [00:24:01] Speaker 00: It just says identifying one or more present selected programs. [00:24:05] Speaker 00: Those programs don't necessarily have to be in use. [00:24:09] Speaker 00: It's just the fact that they're on a device. [00:24:13] Speaker 02: And that's something that isn't even... If you're trying to determine location, which the claim is clearly trying to do, then if you're not asking whether or not the proxy device is functioning, you're not asking the question. [00:24:27] Speaker 00: I agree. [00:24:28] Speaker 02: It's a hypothetical question if you're just saying, well, is it on the guy's phone or not? [00:24:32] Speaker 02: Well, yes, no. [00:24:34] Speaker 02: The question is if it's on the phone to perform a function, which is to spoof. [00:24:39] Speaker 00: Yes, Your Honor, yes. [00:24:40] Speaker 00: I think that it's a problem with the claim and part of the reason why the claim is not directed to that. [00:24:46] Speaker 02: My line of questioning just is responding to your statement a minute ago that there's just not enough specificity with regard to the PropC type program. [00:24:59] Speaker 02: And I wouldn't understand why, if Poza knows what you're talking about, you would need to put all that in the claim. [00:25:05] Speaker 00: I think that the specificity that's [00:25:08] Speaker 00: missing from the claim, or some of the specificities missing from the claim, is that specific way to... I don't know about the first claim, but I was talking about the dependent claims. [00:25:19] Speaker 00: Sure. [00:25:21] Speaker 00: What to do about, again, these programs. [00:25:25] Speaker 03: This just talks about collecting information that there is a program on the device. [00:25:30] Speaker 03: Well, it is, right? [00:25:31] Speaker 00: Yes, it's just collecting information. [00:25:33] Speaker 01: It's not determining whether it's actually operating or not. [00:25:36] Speaker 01: So it's using the existence of these programs that can conceal location as some kind of indicator that this transaction may be suspect, not that it actually is being used to hide location. [00:25:58] Speaker 01: Is that the distinction I understand you're making? [00:26:01] Speaker 01: That is the distinction, yes. [00:26:02] Speaker 01: Do you think if it actually claimed a way to detect if it was hiding location that that might be patent eligible? [00:26:14] Speaker 00: Yes, Your Honor. [00:26:15] Speaker 00: I think that might be patent eligible. [00:26:17] Speaker 00: If it invented a method for determining if the proxy program is in use. [00:26:23] Speaker 00: Or if it is in use, what to do about it. [00:26:27] Speaker 00: Should we collect some additional data to try to really make sure that the person is where they claim to be, or should we block the program? [00:26:37] Speaker 03: The specification talks about what to do about it, which is create a blacklist, but that's not in the claim itself. [00:26:44] Speaker 00: Correct, Your Honor, yes. [00:26:46] Speaker 01: That is not in the claim. [00:26:50] Speaker 01: So let me ask that hypothetical a little bit more specifically. [00:26:52] Speaker 01: Let's say you have this program. [00:26:55] Speaker 01: It first identifies whether the phone has any of these suspect programs on it. [00:27:05] Speaker 01: If it says yes, it then tries to figure out if any of those programs are running and being [00:27:13] Speaker 01: used to conceal location. [00:27:16] Speaker 01: If it answered yes, then it either blocks the transaction or it requests further information from the user before the transaction proceeds. [00:27:27] Speaker 01: Do you think that would be patent-eligible? [00:27:30] Speaker 00: Yes, Your Honor. [00:27:30] Speaker 00: I think that might have been a patent-eligible invention had that been claimed and had they disclosed a way of determining that the program was in use in the specification. [00:27:42] Speaker 01: And why is that? [00:27:43] Speaker 01: I mean, it still seems like it's just gathering information and using that information to take certain courses of action. [00:27:49] Speaker 01: Is it because there might be some technological way to determine whether a program's actually running or not? [00:27:55] Speaker 00: That's my supposition, Your Honor. [00:27:58] Speaker 00: Yes, is that if, again, if they'd come up with some method for doing that that wasn't already in the prior art. [00:28:05] Speaker 01: I mean, I'm not a computer guy. [00:28:08] Speaker 01: Do you have any idea whether that's something a skilled artisan would know already that you can remotely determine whether a device is running a certain program? [00:28:17] Speaker 01: I would think that you probably can. [00:28:19] Speaker 00: I do not know the answer to that question. [00:28:23] Speaker 00: So I don't believe there's been any allegations as to that in the complaints or otherwise in this case. [00:28:35] Speaker 00: Going back to Your Honor's question about SRI, we think the claims here are much more like the claims in Universal Secure Registry, in which there were several patents that the court found ineligible. [00:28:51] Speaker 00: Some of the claims involved just combining conventional authentication techniques, that you're using multiple authentication techniques, and there was no specificity in the claims as to [00:29:05] Speaker 00: how to combine them, and there was no improvement to the techniques themselves. [00:29:09] Speaker 00: Instead, the court just observed that the idea to use these multiple techniques only produced the expected results of greater security. [00:29:17] Speaker 00: And I think that's very analogous to the claims here, where they've just added this information gathering step, identifying programs, and the expected results of that. [00:29:28] Speaker 00: There's been no allegation that there was any unexpected results, other than just [00:29:32] Speaker 00: We're now identifying programs and we have some additional data. [00:29:42] Speaker 00: I think unless the court has any other questions. [00:29:47] Speaker 03: Okay. [00:29:47] Speaker 03: Thank you, Mr. Swan. [00:29:48] Speaker 03: Senator Law, you have two minutes. [00:29:50] Speaker 00: Thank you. [00:29:50] Speaker 00: We respectfully ask the court to confirm. [00:30:04] Speaker 04: Let me just take a couple of points that were discussed. [00:30:08] Speaker 04: First was the suggestion that we're somehow saying something different now than what we told the district court. [00:30:17] Speaker 04: Sorry, am I good to go? [00:30:20] Speaker 04: That we're saying something different. [00:30:22] Speaker 04: If you look at appendix 1529 to 1530, the district court articulates exactly the point that we've been discussing here. [00:30:28] Speaker 04: The district court says, if you are able to determine that he has a spoofing or screen sharing program on his phone, for example, [00:30:34] Speaker 04: you can have a higher degree of confidence that he, in fact, is not where or may not be where the geolocation data would indicate he was. [00:30:40] Speaker 04: So just to recognize that the technological problem is the difference between where the device is and where the person is, and that you can have a higher degree of confidence with the invention here. [00:30:51] Speaker 04: And that's to the concessions that were made about, well, if you determine whether the program is running versus whether it's present. [00:30:59] Speaker 04: That's not a difference in whether something's abstract or not. [00:31:03] Speaker 03: Maybe there are additional- It's true that the claim doesn't tell you which it is, right? [00:31:07] Speaker 04: The claim does, just like it says that it's an identification of present programs. [00:31:12] Speaker 04: So the program has to be present on the device. [00:31:15] Speaker 03: Wait, wait, wait. [00:31:17] Speaker 03: Be present on the device and running may be different. [00:31:20] Speaker 04: Yes. [00:31:21] Speaker 04: And so the claim specifies that it has to be present. [00:31:23] Speaker 04: It does not specify that the program has to be running. [00:31:25] Speaker 04: But to the point of- [00:31:28] Speaker 04: If running is non-abstract and a technological solution to a technological problem, then this also is. [00:31:34] Speaker 04: And I think it is in the way that Judge Hughes was saying. [00:31:37] Speaker 04: It allows a degree of confidence. [00:31:39] Speaker 04: If these programs are present, then you have less confidence that where the device is corresponds to where the user is. [00:31:45] Speaker 04: When they are not present, then you have higher confidence. [00:31:47] Speaker 04: And that's what the patent explains. [00:31:49] Speaker 04: I think the other thing that is important to keep in mind is these claim, these steps are performed within a specific network configuration where you have [00:31:57] Speaker 04: a second server. [00:31:58] Speaker 04: And the patent talks about this. [00:31:59] Speaker 04: You have a second server that sits in between the user's device and the first server. [00:32:04] Speaker 04: And that, too, allows for a higher degree of confidence in determining whether this device is where or the person is where the device is. [00:32:13] Speaker 04: I see I'm out of time, but we'd ask that the court reverse on all claims and at least has to claim seven and eight. [00:32:18] Speaker 03: OK. [00:32:19] Speaker 03: Thank you. [00:32:19] Speaker 03: Thank both counsel. [00:32:20] Speaker 03: The case is submitted.