[00:00:00] Speaker 02:
our final case this morning is Integrated Advertising Lab versus the F content 2023-1392.

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May it please the court.

[00:00:15] Speaker 02:
Good morning Mr. Kimmel.

[00:00:18] Speaker 01:
May it please the court.

[00:00:20] Speaker 01:
Again, Justin Kimmel on behalf of the Appellant Integrated Advertising Labs.

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This is an interesting case because the technology here is something that we all interact with every day that we're online.

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Every day that we go to any website, we interact with advertisements, obviously.

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And the way that we interact with those today is much different than the way that we would have interacted with those at the time that these patents were filed for back in 2006 and 2007.

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A lot of what we interact with every day constitutes abstract ideas.

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Yes, sir.

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That's right.

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And so to the extent that these patent claims were directed to targeted advertising alone, we wouldn't be here making this argument.

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But the patent claims aren't.

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And so that is, instead, it's an improvement to a system that can automatically deliver

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and distribute and display advertisements on many websites automatically, and in particular, advertisements that are contiguous with other website content and share similar features with that content.

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That type of advertising, the one I was describing today, is known today as native advertising.

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And so most of the claim limitations... Isn't it all electronic?

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In fact, virtually every, most of the claim limitations say electronically.

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Receiving, distributing, receiving, posting, isn't this just stringent data?

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It's certainly done electronically.

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And it is data.

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However, there are, what we have done, what these patents do is they provide steps and methods that did not exist before.

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And if you look at claimants...

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So when something doesn't exist before, that doesn't make it any less abstract, right?

[00:02:19] Speaker 01:
Not necessarily.

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That's right.

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What do you think is the inventive concept or the thing that you're arguing makes this non-abstract because it's a, say, a technological solution to a technological problem?

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What specific things are in this claim?

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Your Honor, yes.

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So I'd answer it two ways.

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So what I would say is I do think that it is an improvement to networking in regard to advertisements.

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And I think specifically, it's the way that these advertisements are distributed automatically to many websites and the way that they are displayed within those websites.

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That was a heavy lift.

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And really, just to skip down, you know.

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What is the technological hurdles that were overcome

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in order to be able to display these advertisements in a way that they are contiguous with other content that the user actually requested.

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Right.

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So at the time, and this is discussed in the patent, you had these static banner advertisements.

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They're called.

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So these were one-off images that would be created for a given website.

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And so if that ad wasn't working or whatever, you would have to redo that, resubmit that image to that website.

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What our patents are about is about creating dynamic advertisements.

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So one, they didn't have to be images.

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They could be, and we talk about this, multiple components, videos and whatnot.

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But that they could be done automatically across websites and seamlessly fit within the rest of the content.

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We show in our briefs images from

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But what technological problem?

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I mean, to be honest with you, let's say, OK, so there's an idea, and I'm going to make it so my advertisements are seamless.

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So they don't look as much as advertisements, right?

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But why is that any different than the conventional displaying of content that the user asks for?

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In other words, it seems more like an idea and not a technological improvement

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of either software or hardware or anything else.

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How is it technological improvement?

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So this goes back to what I was saying that, to your point, say a customer prior to the patents said they want something different.

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Request, it's developed and

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transmit it to the customer some way.

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What we are doing is being able to do this on a much larger scale and not just in a binary one-to-one way.

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You ask for something, we redo a custom website and send it back to you.

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These ads are submitted dynamically and so the technological improvement has to do with the systems that are

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described in the patent, the distributor module, the press release poster module, and others.

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And how those are used to intake this information and distribute it out to these websites and then fit it into those websites in a way that is seamless, matches the look and feel of the website.

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How is it different than the way systems would distribute other kinds of content?

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Your honor, that is a good question.

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I'm not sure I'd consider that question.

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I suppose the answer would depend on what that type of content is.

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I would say that, yeah, I don't know exactly what the answer to that is.

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I suppose the answer is other kind of content.

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Let's take for example an article.

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right that's pushed out to whatever CNN I raise that because that's one of the part references that we got over so that would be done and then you could you know I suppose edit and send back a different article or sport or just you know the next day's article or something like that here still

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That is, I think the answer to your question is around who are the players there.

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So in that example that I'm coming up with, you have, I guess, an author or a creator of that sending it to the publisher.

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Here we have more players, we have these advertisers, we have publishers, we have companies like Refcontent and Nativo which develop the patents which provide these systems that take in these advertisements and these requirements and feed them across the internet, across multiple websites.

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So I do think it's different and I would say

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Getting to, I've been kind of talking around, really, what is an abstract concept, but we have pleadings in our complaint about what the problems were in the art at the time, how difficult that was, and what, well, at the time, actually, it was called post-release.

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Post-release, you'll notice, is in the record in the patents.

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That was the name of the product.

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It was rebranded Nativo because of native advertising becoming a term.

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But we have pleadings about that this was a difficult challenge.

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Those were the challenges.

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We then tie that to the specifications discussing these challenges, and then particular claim limitations.

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In our view, the district court didn't give sufficient credence, or really any credence, to those well-pleaded allegations, and thus for at least

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on step two, we think that the types, the steps that I've been discussing, these are in claim 13, it's the last five steps at least, plus claim 22, that we think at minimum provide an inventive concept to get to the extent that it was determined that the claims are simply directed to targeted advertising.

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I am gonna go back to the step one analysis.

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So we do think it was not routine use of the internet.

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We think this is a very different use of the internet, like DDR and other cases.

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And not like custom media either, which is a case about pure targeted advertising, which did just use simple computer tools.

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Here, we were doing something new,

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We're using the disclosed distributor module and press release module to dynamically distribute ads to many websites, not static ads, but native ads with multiple components.

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We think that if you're looking at it that way, it's not an abstract concept.

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Now, as I said, going back to step two, at minimum we think the last five steps of claim 13 provide an inventive concept.

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And under Berkheimer, we think our pleaded allegations must be drawn in our favor.

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We think that's very clear.

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And we don't think that they were, and that that precludes judgmental pleadings in this case.

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Another thing that we pleaded and that we don't think was given enough consideration is the fact that we overcame a one-on-one objection during prosecution.

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The examiner in that rejection.

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Can we go back to the complaint, the statements in the complaint?

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Why are those not conclusory?

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The answer is, well, those are statements, in our view, based on the client's knowledge and experience.

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I distinguish those from pleadings where you say, well, you kind of quote the law and say that it's not an abstract concept.

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It provides inventive concepts.

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Here, we're explaining exactly what the inventor knew and was doing, the original Chinese, and explaining the inventor and Chinese original Chinese knowledge.

[00:10:37] Speaker 03:
Can I just make sure I'm looking at the right page?

[00:10:39] Speaker 01:
Yes, Your Honor.

[00:10:40] Speaker 03:
Is it pages A75 to A76?

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Just so I make sure I understand.

[00:10:46] Speaker 01:
I'm sorry, it actually starts at 73.

[00:10:48] Speaker 01:
Let me make, I want to make sure.

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Yes, A73 under factual background.

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They're in factual background, you're explaining why there is an inventive concept?

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Well, we're explaining what the problems were in the art, and that they designed Nativo, prior post-release, ultimately called Nativo, to address those concepts.

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And then we move from that, then when we go specifically into discussing the law, tying that into the specification and the claims.

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So we read that all as a continuation, even though in some part it was just

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some background just for the case, but it is applicable to the patent eligibility of the claims as well.

[00:11:38] Speaker 01:
uh... couple more uh... couple so two more comments i wanted to say so uh... we did overcome a one-on-one challenge in prosecution i know that's not a you know just an automatic but the examiner i think it's relevant did raise the very same issues that uh... rep content did and that the judge did.

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We identified the same sorts of limitations there uh... and we think those were not given.

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Can you remind me of the time frame of when that occurred?

[00:12:02] Speaker 01:
That occurred in twenty fourteen it was definitely after Alice

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It was 2014 or 2015 when that rejection occurred.

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Shortly after Alice.

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Shortly after Alice.

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I mean, besides Alice, when there was a lot of those.

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Here we think collective entertainment, our pleaded allegations about what makes the patents inventive, mirror what we said in the patent prosecution, mirror what the spec says, and therefore we think judgment of the pleaings was improper.

[00:12:36] Speaker 01:
I see I'm getting into my rebuttal time.

[00:12:38] Speaker 01:
I think I will save the rest of my time.

[00:12:41] Speaker 02:
We will save it for you.

[00:12:44] Speaker 02:
Mr. Padmanabhan.

[00:12:52] Speaker 00:
Thank you, Your Honor.

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May it please the Court, Christian Padmanabhan on behalf of RevContent, EPLES in this matter.

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Your Honors, we would respectfully request that the Court affirm the judgment on the pleadings of the Court below and find IAL's claims ineligible.

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I'm going to start by responding to some of what

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Appellant Ayal stated, because I think that will be helpful.

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He started by explaining what he believes we see every day and how that's different.

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But that's not what the patent claims say.

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The patent claims, as this Court has said over and over again, drive the eligibility decision.

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And if you look to the patent claims, they are directed to the abstract idea of targeted advertising for a web page.

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and formatting the targeted ad in a particular manner with respect to the non-advertising content.

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As your honor said, sort of giving a look and feel or a seamless look and feel.

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But if you get down to the actual claim limitations, it gets even worse.

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Because for each of those issues, the actual claim limitations are inherently abstract.

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So let's start backwards with the look and feel concept.

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The limitations read such that the sponsored content, which is what they refer to the advertising as, and the non-sponsored content merely need to share a plurality of features.

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That's it.

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They have to have something in common.

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There's nothing more to that.

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The other thing that IAL said made their claims potentially non-abstract or inventive

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was that they push the ads out to multiple webpages.

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Well, let's look at the claim that recites that.

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And this you can find in Appendix 36.

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It's Claim 22 of the 622 patterns.

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That claim simply reads,

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The method of Plan 13, further comprising electronically posting the sponsored news content among the non-sponsored content at each of multiple related websites and electronically monitoring user data or user activity at each of the multiple websites, purely results oriented.

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It is simply resulting, simply reciting the results of having the advertising content go out to multiple web pages.

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Is your point, I hear what you're saying about it being result oriented, but also are you also making the point that as far as the claim of a larger scale, the claim is not so, it claims pretty broad.

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It would cover even a scenario where there are just a couple

[00:15:55] Speaker 00:
Websites that absolutely it's abstract in the nature that it's just essentially it's abstract and non-inventive But it you can look at the problem as stated in the patent Which they say you would need normally need to do this manually and go to a couple of websites And then they say well they automate it they can go to a plurality of websites that could be two So instead of a person going to two websites and pushing the ads out this system pushes this he adds out to websites nothing more than that and

[00:16:24] Speaker 00:
I'd like to next go to this idea that they rely on their pleadings, their allegations.

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If you look at those allegations, they do not help them.

[00:16:36] Speaker 00:
Okay, they do not help them.

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I'd actually like to take a moment and go through the allegations because I think they actually, they're informative.

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And you can find these starting at appendix 73.

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So paragraphs eight and 10 are the first ones they start with.

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And all those say is that the same person that's named inventor founded a company, and the company is doing well.

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It has nothing to do with the patent claims themselves.

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In paragraph nine, they talk about the fact that it's difficult to make things look and feel the same way

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as the non-advertising content on the website.

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But the claims themselves, all they say, again in results-oriented fashion, is that the advertising has a plurality of features of the non-advertising content.

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Nothing more.

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If you go to paragraphs 15 and 16, which are the next ones they cite to, those are the absolute type of conclusory allegations this court is cautioned against again and again.

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They simply just say, we think the claims are eligible, nothing else.

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And then if you go to paragraph 17 through 21, there they highlight a handful of limitations, all of which were addressed below.

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And those limitations, they're most clearly called out in paragraph 21.

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The first is delivering a specific sponsored news content to a particular user utilizing a particular one of the monitored user data or user activity.

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That's just targeted advertising.

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The second is wherein when the sponsored news content is displayed, it is displayed separately from any banner advertisement and continuously together with at least some of the non-sponsored content appearing on the page, etc., etc.

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This is just formatting on the screen.

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And the last is electronically posting the sponsored news content among the non-sponsored content at each of the multiple related websites.

[00:19:03] Speaker 00:
And that's what we saw in Claim 21 of the 622 patent.

[00:19:06] Speaker 00:
It's just the idea of saying, do the multiple what you did to one before.

[00:19:10] Speaker 00:
Nothing other than results-oriented language that they relied on.

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I would note that in the briefing below to the district court, they did not rely on these allegations to try and get past the 101.

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They did not say that the court could not find the claims ineligible based on the pleadings.

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They relied on the patent examiner issuing a 101, then their ability to overcome an objection based on the 101.

[00:19:43] Speaker 00:
Your Honor, to your question, that did happen in 2014 and early 2015.

[00:19:49] Speaker 03:
How do you respond to their reliance on, say, DDR?

[00:19:54] Speaker 00:
Yeah, that's a great question.

[00:19:56] Speaker 00:
So in DDR, there was something inventive about it, which was it was a new type of hyperlink, right?

[00:20:02] Speaker 00:
The idea was not just common look and feel, but there was something inventive in that hyperlink.

[00:20:08] Speaker 00:
The result of that happened to be common look and feel.

[00:20:11] Speaker 00:
Here,

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The claim is written in a fully results-oriented manner.

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They say we push ads out, we gather data about it, we send the ads to the people, we make them have common features with the non-advertising content on the web page.

[00:20:27] Speaker 00:
Full stop.

[00:20:28] Speaker 00:
That's the claim.

[00:20:29] Speaker 00:
And that's all of the claims.

[00:20:31] Speaker 00:
We'd also note they don't identify any distinguishing limitations amongst the claims.

[00:20:37] Speaker 00:
And they did not do so below either with respect to claims other than 13 and 22.

[00:20:44] Speaker 00:
I think counsels at this point conceded.

[00:20:47] Speaker 00:
Below, they made a large deal of representativeness.

[00:20:49] Speaker 00:
At this point, it appears to be conceded.

[00:20:51] Speaker 00:
So I think they're agreeing that claims 13 and 22 are representative.

[00:21:01] Speaker 00:
The last point in their briefing, I think, is claim construction.

[00:21:04] Speaker 00:
They did not argue that below.

[00:21:07] Speaker 00:
So it's waived.

[00:21:08] Speaker 00:
But on top of that, their proposal with respect to claim construction was plain meaning with respect to all these terms.

[00:21:15] Speaker 00:
And they did not identify any claim term that needed to be construed in order to determine inventiveness or that was determinative of eligibility.

[00:21:25] Speaker 00:
And so the district court relied upon that to say claim construction was not necessary.

[00:21:31] Speaker 00:
If you don't have any further questions, I believe I can cede my time.

[00:21:58] Speaker 01:
I'll try to keep it short as well, Your Honors.

[00:22:00] Speaker 01:
I wanted to make two points and answer any questions.

[00:22:03] Speaker 01:
So with respect to look and feel, there was a question of, well, we don't see what that is.

[00:22:07] Speaker 01:
Yes, the claims say a share or plurality of features.

[00:22:11] Speaker 01:
The specification provides examples of that, including the color of the background, the font, the size.

[00:22:17] Speaker 01:
in the claim to continuous nature.

[00:22:20] Speaker 01:
Figure 6 shows examples of this.

[00:22:22] Speaker 01:
This was discussed in prosecution with respect to overcoming references.

[00:22:28] Speaker 01:
So we think while, yes, the claim language allows some room to determine what is a feature, we have described in the specification what is meant by that.

[00:22:38] Speaker 01:
And we think that it does, again, as I said before, amongst the other issues,

[00:22:44] Speaker 01:
demonstrate an inventive concept.

[00:22:48] Speaker 01:
It is not simply formatting on a screen.

[00:22:49] Speaker 01:
This is highly difficult to do, again, across websites in a dynamic fashion.

[00:22:55] Speaker 01:
With respect to representative claims, we haven't conceded that.

[00:23:01] Speaker 01:
I focused on that claim for purposes of this argument.

[00:23:05] Speaker 01:
I would say I think the biggest issue with respect to representatives is the terms posting.

[00:23:13] Speaker 01:
versus embedding, posting in Claim 13, embedding in Claim 8.

[00:23:17] Speaker 01:
I think it is of the 781 and the claims of the 121.

[00:23:19] Speaker 01:
That is a term that is in dispute, well, was in dispute in claim construction.

[00:23:25] Speaker 01:
And the discussion around that, though the court never heard it because we got the judgment on the pleadings literally the day after we exchanged expert reports, goes to the distinction between those terms.

[00:23:38] Speaker 01:
We do think they should be given their plenary meaning, but we don't think they have the same meaning as does RefContent, and our expert in explaining why they aren't different discusses what that is.

[00:23:50] Speaker 01:
So posting with respect to this patent is displayed in the browser for the user.

[00:23:55] Speaker 01:
Embedding is a different issue in terms of injecting into the web page, including through an HTML tag.

[00:24:03] Speaker 01:
So there is distinction there, and there is dispute in the claim construction around whether the web server is the one receiving and posting, or whether it is the browser.

[00:24:14] Speaker 01:
And I think that issues like that go to, back to Judge Stoll's questions, how these inventions technically were being done.

[00:24:25] Speaker 01:
So we think that the judgment was premature in that way on a very, very limited record.

[00:24:31] Speaker 01:
We had two 20-page briefs, no oral argument, no claim construction.

[00:24:35] Speaker 01:
So with that, we would ask court to reverse.