[00:00:02] Speaker 04:
good morning your honor may I proceed may it please the court my name is Guy Rutenberg for the appellate mobile acuity I'm from the law firm of Rutenberg IP law

[00:00:30] Speaker 00:
I think this case presents an opportunity to look at what allegations of inventiveness must be considered, particularly in the context of a Rule 12b6 motion on the pleading for a 101 motion.

[00:00:54] Speaker 04:
abstractions.

[00:00:55] Speaker 00:
I don't think so your honor.

[00:00:57] Speaker 00:
I think claims to do more than that and I think you have to look at the specification and I think you have to look at the allegations and the complaint to understand that.

[00:01:06] Speaker 00:
The district court, in this case, characterized the claims as abstract because the district court found and the appellee argues that the claims are directed to the abstract idea of, quote, leaving information at a location or object for one's future reference.

[00:01:27] Speaker 00:
That cannot be correct.

[00:01:29] Speaker 00:
The reason we know that cannot be correct is because there's an entire disclosure that explains how this invention is different from the prior art.

[00:01:38] Speaker 00:
And what the district court is saying here would capture

[00:01:43] Speaker 00:
would capture the prior art that this is distinguishing.

[00:01:46] Speaker 00:
What the specification discloses and the claims then recite is something that says, okay, in the prior art, what we had is we had the ability to leave information so that it could be used in the future.

[00:01:59] Speaker 00:
But what we had to do in the prior art is we had to use a visual cue.

[00:02:04] Speaker 00:
We all remember there were barcodes.

[00:02:06] Speaker 00:
If you wanted to associate information, you had a barcode, and so if there was an object

[00:02:11] Speaker 00:
that you wanted to associate through imagery, you have to go in advance, mark that with a barcode, and then you would match things up with a barcode or some other type of visual cue that was unsightly, that was expensive, sometimes it required licensing of technology.

[00:02:27] Speaker 00:
What this patent does, and what's explained in the specification, what's alleged in some detail, what these inventors did is they realized that they could match images

[00:02:40] Speaker 00:
that are uploaded by users

[00:02:42] Speaker 00:
By using the object itself as the trigger, we don't need to use a barcode.

[00:02:49] Speaker 00:
We don't need to license the technology for that kind of coding.

[00:02:53] Speaker 00:
What we can do is by looking at, if you look at claim nine, for example, the 618 pattern, they use the term corresponding.

[00:03:01] Speaker 00:
And the specification explains that this concept of correspondence is based upon looking at images from different perspectives and figuring out how to match those up.

[00:03:11] Speaker 00:
Claim 11 then goes into more detail and talks about using interest points.

[00:03:16] Speaker 00:
Interest points are then explained in the specification as being very specific ways of pulling information from the pixels so that you can then compare them from different perspectives.

[00:03:29] Speaker 02:
You never expressly asked the district court to construe, for purposes of 101, corresponding or interest points, never said, here is what construction we need, and never argued what difference it would make and how it would make the claims now have an inventive concept.

[00:03:47] Speaker 02:
The closest you come is in your proposed third amendment complaint, but you don't even do all of what I just suggested at that point.

[00:03:54] Speaker 02:
How does all of what you just said about the specification even become relevant to our 101 analysis?

[00:04:01] Speaker 00:
Well, I think what we said in the complaint to begin with is what the inventive concept is.

[00:04:06] Speaker 00:
What we said is that the way you accomplish the invention, the entire point of this invention was to get rid of the barcodes, to get rid of those visual cues.

[00:04:20] Speaker 00:
That's in our second amended complaint, which is the operative one.

[00:04:23] Speaker 02:
Is it in claim nine?

[00:04:25] Speaker 00:
We believe so.

[00:04:26] Speaker 00:
It's in claim nine through the word correspondent.

[00:04:29] Speaker 02:
Why didn't you timely propose a construction that got that supposed inventive concept into the word corresponding in claim nine?

[00:04:38] Speaker 00:
I think we did.

[00:04:38] Speaker 00:
During oral argument, when the court asked, are there any claim constructions, we said, we believe we can amend.

[00:04:45] Speaker 00:
And we can do so by explaining what correspondence means.

[00:04:48] Speaker 00:
And we can do so by explaining what interest points means.

[00:04:51] Speaker 00:
In the Ninth Circuit, what the Ninth Circuit says, Your Honor, is that if leave to amend is denied on the grounds of futility, and we did ask for leave to amend, then that's review de novo.

[00:05:03] Speaker 00:
And the way you essentially look at it is you have to look at the third amended complaint

[00:05:07] Speaker 00:
to see whether there's anything new in there anyway, because if there was, then the court should have allowed it.

[00:05:12] Speaker 00:
And so in our third amended complaint, we were even more explicit in pointing to those terms.

[00:05:16] Speaker 02:
They should have allowed it, potentially, if it would have made a difference under step one or step two.

[00:05:22] Speaker 02:
Right.

[00:05:22] Speaker 02:
Where do you explain what difference your supposed proposed constructions in the third amended complaint would have made?

[00:05:28] Speaker 00:
Well, I think we explained that in the briefing below, and I think we also explained it in the complaint itself.

[00:05:33] Speaker 00:
where we explain the way you have to look at this claim.

[00:05:38] Speaker 00:
We said all along, even from our very first complaint, that this invention here is different than just leaving information so it can be used for purposes of future use.

[00:05:51] Speaker 00:
From the very first complaint, what we said is this invention is about

[00:05:57] Speaker 00:
getting away from visual cues.

[00:05:59] Speaker 00:
And the way you do that is by looking at correspondence in claim nine, interest points in claim 11, claims 14 and 15, getting into more specifics about that.

[00:06:10] Speaker 05:
Did you say 16?

[00:06:11] Speaker 00:
I said 14 and 15.

[00:06:12] Speaker 05:
I don't see that 15 was ever mentioned in any of the papers.

[00:06:17] Speaker 00:
I think what we said, Your Honor, is we said claim 14.

[00:06:19] Speaker 00:
I think we said 11, 14, 15.

[00:06:21] Speaker 00:
I thought we said 16 as well.

[00:06:23] Speaker 05:
I just want to be sure what universe we're talking about here.

[00:06:28] Speaker 05:
The other 14 of both patents, yes.

[00:06:32] Speaker 00:
Yes, they are.

[00:06:34] Speaker 00:
I would have to check, Your Honor.

[00:06:36] Speaker 00:
I apologize.

[00:06:38] Speaker 00:
But I think when it comes to representative claims, one of the things that we said is the defendant in this case at the lower court had a footnote.

[00:06:51] Speaker 00:
The defendant's brief focused on claim nine only.

[00:06:55] Speaker 00:
And they had a footnote that said, basically, we think this is true for all claims.

[00:07:00] Speaker 00:
And what we said in the lower court is we don't think that's enough to even shift the burden to us to say anything about all of the claims.

[00:07:08] Speaker 00:
What we did do is we said, we think the other claims are different.

[00:07:12] Speaker 00:
We haven't agreed that.

[00:07:14] Speaker 00:
The other claims are the same.

[00:07:16] Speaker 00:
We haven't agreed that anything is representative.

[00:07:18] Speaker 00:
There was no stipulation.

[00:07:18] Speaker 02:
The district court went on to discuss at least claims 11, 14, and 16, plus 9, I think from both patents.

[00:07:25] Speaker 00:
The district court did.

[00:07:26] Speaker 02:
So did you ever call out any material differences with any other claims?

[00:07:34] Speaker 00:
I don't think any other claims were discussed by the district court or the defendant.

[00:07:40] Speaker 02:
How about by the plaintiff?

[00:07:41] Speaker 00:
I don't think the other claims were discussed by anyone other than the ones you mentioned.

[00:07:47] Speaker 02:
I just want to know what's wrong then with how the district court handled...

[00:07:52] Speaker 00:
I think I start with 35 U.S.C.

[00:07:56] Speaker 00:
282A, which says each dependent claim or each claim is presumed valid separately.

[00:08:03] Speaker 00:
And so to come forward and say through a footnote that we're now challenging all claims, I don't think that meets the burden of proof to invalidate claims that are unmentioned by anybody.

[00:08:14] Speaker 02:
It puts you on notice that all the claims are at issue in their motion.

[00:08:21] Speaker 00:
It puts us on notice, potentially, but I don't think it shifts the burden.

[00:08:24] Speaker 00:
I agree that it puts us on notice.

[00:08:26] Speaker 00:
But the question, who has the burden, I think is an important one, especially when you're talking about an affirmative defense at the pleading stage.

[00:08:34] Speaker 00:
The fact that someone can say, we think this implicates all claims, I don't think that meets the requirement for clear and convincing evidence to invalidate claims that you haven't even mentioned.

[00:08:44] Speaker 00:
because essentially the order here invalidates all claims, including means plus function claims that it's not clear if they were assertive that no one's even addressed.

[00:08:52] Speaker 00:
There's a broad order here saying all claims are essentially invalid without addressing claims that maybe didn't even come up.

[00:08:59] Speaker 00:
And I think that's problematic.

[00:09:01] Speaker 00:
I think that sort of puts the burden on the patent holder to defend a patent to defend claims at the bidding stage that may have not been challenged or asserted at this point.

[00:09:11] Speaker 00:
I think that's potentially problematic.

[00:09:15] Speaker 00:
But I think going back to what the district court said, I think from the very first complaint, if we look at the district court's formulation of this abstract idea, the formulation that the district court has come up with is that we're just collecting information that was left before.

[00:09:33] Speaker 00:
And I think that's entirely divorced from what's described in the patent.

[00:09:39] Speaker 00:
And it's entirely divorced from the allegations in the very first complaint.

[00:09:42] Speaker 05:
What is your understanding of the term interest points as set out in the specification?

[00:09:55] Speaker 00:
I think what we said, the interest points are features in an image that can be extracted

[00:10:01] Speaker 00:
and used as points to calculate a homography matrix.

[00:10:04] Speaker 00:
And that's described extensively in the specification.

[00:10:07] Speaker 00:
The specification, for example, unlike cases, I think obviously your honor is familiar with centerline management, the specification in this case is actually quite detailed.

[00:10:16] Speaker 00:
It describes a way of doing something that had never been done before, which is getting, enabling a user

[00:10:24] Speaker 00:
to upload images and then finding within those images interest points that can then be used to compare with future images that are uploaded later.

[00:10:35] Speaker 05:
Is there anything that tells us how the invention identifies interest points or is it simply a question of, well, there will be some points in any image that will be determined

[00:10:51] Speaker 00:
Well, I think claim 14 talks about more specific ways, talks about a model user key image that you can then use to compare.

[00:11:00] Speaker 05:
But again, what does that mean?

[00:11:03] Speaker 05:
I looked at preferences to model user key image and I didn't see any specificity even in the specification with respect to what that is.

[00:11:11] Speaker 00:
I think what that, as I understood the specification, is I think you use interest points that you pull out of the specific, out of the images.

[00:11:21] Speaker 00:
For example, by looking at the pixels, you can pull something out if you're looking at, say, a Diet Coke can.

[00:11:26] Speaker 00:
You can point to specific pixelated images that you can arrange in a certain way, and then

[00:11:34] Speaker 00:
Later, if there's another image, you can compare that arrangement of interest points to see if this is really the same image, excuse me, the same product from a different perspective and a different image.

[00:11:46] Speaker 00:
Which essentially, what that does, and I think what the invention here is, as alleged in the complaint, is you've now taken a, you have no library, but you've enabled the user to upload something and share information about that particular

[00:12:05] Speaker 00:
item in the image and then when somebody in a different place a different content who doesn't know that person uploads a completely different image of the same object we can connect that information and that was just not possible before without this without this technology Councilor you're into your bottle talk.

[00:12:25] Speaker 04:
You can continue or save it as you wish.

[00:12:27] Speaker 00:
I will save my bottle

[00:12:40] Speaker 01:
Good morning, your honors.

[00:12:41] Speaker 01:
May it please the court, Martin Bader for appellees.

[00:12:45] Speaker 01:
I would like to start by focusing on the specific language of independent claim nine of the 618 patent, because what we've heard today is a lot about things that are not in that claim.

[00:12:57] Speaker 01:
And when you look at the claim, it's extremely simple.

[00:13:00] Speaker 01:
It's performed on a conventional server.

[00:13:03] Speaker 01:
It involves only three steps, which are all directed to very conventional computer activities that this court has regularly found to be invalid under Alice.

[00:13:14] Speaker 01:
And to paraphrase the claim, step one simply receives user-defined information from a first party that can be accessed by multiple parties.

[00:13:24] Speaker 01:
Step two, associating the user-defined information with a portion of the first image in a database that adds to information that's already in the database.

[00:13:35] Speaker 01:
So you have an image that was stored, some information, now you've added to it.

[00:13:39] Speaker 01:
And then the third step is providing access to that information to a second party when a second image

[00:13:52] Speaker 01:
includes a first portion that corresponds to a first image.

[00:13:57] Speaker 01:
Now, what is noticeably not in that claim is anything about how those two images correspond to each other.

[00:14:06] Speaker 01:
There's nothing in the claim about computer vision technology.

[00:14:12] Speaker 01:
The server doesn't even have to do that comparison.

[00:14:15] Speaker 01:
The claim doesn't even require the server to do the comparison of the two images.

[00:14:19] Speaker 01:
A person sitting there could be looking at this and tell the server, hey, these two images include the same things.

[00:14:27] Speaker 04:
Is this information in this specification?

[00:14:30] Speaker 04:
And if so, are the claims therefore badly drafted?

[00:14:34] Speaker 01:
I think the claims are very broadly drafted that capture a very simple concept of moving information around a server and a database.

[00:14:47] Speaker 01:
This is really all that they say.

[00:14:50] Speaker 02:
And so when... Would the QR code embodiments be captured by the breadth of the Cloud9?

[00:14:58] Speaker 01:
I'm not sure if they would be or wouldn't be.

[00:15:04] Speaker 01:
I hypothetically, maybe if a picture included a barcode, then maybe.

[00:15:12] Speaker 01:
There's nothing in the claim that distinguishes, I would say, or specifically says that this claim is an improvement over barcode technology.

[00:15:24] Speaker 01:
Again, it's simply talking about a process for gathering information, putting it into a database, and having a user access it.

[00:15:34] Speaker 05:
What about the deepening claims?

[00:15:38] Speaker 05:
We've talked about deepening the punch of Mr. Odenberg.

[00:15:46] Speaker 05:
points in the 618.

[00:15:50] Speaker 01:
I believe it's claim 11.

[00:15:51] Speaker 01:
Yeah so yeah let's let's talk about interest points.

[00:15:55] Speaker 01:
The interest points were specifically addressed by the district court.

[00:16:04] Speaker 01:
There's this repeated discussion that correspondence and interest points matter here.

[00:16:12] Speaker 01:
First the court

[00:16:13] Speaker 01:
already found that these concepts are nothing more than another abstract idea.

[00:16:18] Speaker 01:
It's just processing of an image.

[00:16:22] Speaker 01:
There's points that are then extracted from the image.

[00:16:25] Speaker 01:
The other thing that I think is very key here is that when you look at the patent specification, these interest points and how you determine them are specifically, by the patentee, referred to as

[00:16:43] Speaker 01:
The process for doing that is known in the prior art.

[00:16:47] Speaker 01:
So when you look at the joint appendix at page 51, so the 618 patent, column 6, lines 47 to 57, the specification says, various methods can be used to determine interest points.

[00:17:06] Speaker 01:
For example, Hartley and Zimmerman, titled,

[00:17:11] Speaker 01:
multi-view geometry and computer vision from a second edition in 2003, use interest points defined by regions of minima

[00:17:21] Speaker 01:
in the image autocorrelation function.

[00:17:24] Speaker 01:
Interest points may also be defined using the scale invariant feature transform features.

[00:17:31] Speaker 05:
But doesn't that really go more to obviousness or anticipation than to 101?

[00:17:37] Speaker 01:
I don't think so, because when you look at claim 14, or I'm sorry, claim 11,

[00:17:48] Speaker 01:
see what that claim actually says.

[00:17:51] Speaker 01:
Again, all it says is extract interest points from the portion of the second image.

[00:17:59] Speaker 01:
So this is a computer, the server, extracting an interest point.

[00:18:05] Speaker 01:
So it's exactly, it's using a known formula

[00:18:10] Speaker 01:
that in the prior art, this is the formula you use to extract interest points.

[00:18:14] Speaker 01:
All it's doing is implementing a known formula to extract those interest points.

[00:18:20] Speaker 05:
So you're saying, if I understand you, that the term interest points is really no more specific than, say, the term relevant information.

[00:18:28] Speaker 01:
I don't think so, or portions of an image.

[00:18:30] Speaker 05:
I think you're agreeing with me.

[00:18:35] Speaker 05:
I'm not sure I understood your answer.

[00:18:37] Speaker 05:
You don't think so.

[00:18:37] Speaker 05:
I was saying, are you saying that interest points just means information that may, by the system being used, ultimately be regarded as wrong?

[00:18:49] Speaker 01:
Yes.

[00:18:50] Speaker 01:
OK.

[00:18:50] Speaker 01:
Yes.

[00:18:51] Speaker 05:
That's correct.

[00:18:52] Speaker 05:
I understand.

[00:18:53] Speaker 02:
Can you help me with how the representative claim question was litigated here?

[00:18:58] Speaker 02:
First of all, which claims do you think that you succeeded in invalidating?

[00:19:04] Speaker 01:
well your honor i believe that all the claims of the patents have been invalidated all ways of both at both acts of sorry even though i think you would have to concede a whole bunch of them were never even mentioned by you them or the district court in our opening brief we explain why claim nine of both patents was representative of the entire patent where did you explain that?

[00:19:30] Speaker 01:
I think we asserted it

[00:19:33] Speaker 05:
And in your opening week before the district court?

[00:19:36] Speaker 01:
Before the district court.

[00:19:37] Speaker 01:
I think that was our assertion.

[00:19:39] Speaker 01:
We knew some of the claims that were being alleged to infringe.

[00:19:43] Speaker 01:
I think it was 11 and 16.

[00:19:45] Speaker 01:
14 has also come up and been analyzed by the court.

[00:19:49] Speaker 01:
But I think 11 and 16 were actually alleged to infringe.

[00:19:54] Speaker 01:
But we didn't know if there were going to be later claims.

[00:19:57] Speaker 01:
And so we took the position that claims nine from both patents were

[00:20:01] Speaker 01:
representative of the entire patent.

[00:20:07] Speaker 01:
Now, in response, the plaintiff made some specific arguments regarding why claims 11, 14, and 16 of the 681 patent were different than the representative claims, and why claims 11, 14, and 16 of the 648 patent.

[00:20:26] Speaker 01:
To your earlier question, I don't believe claim 15 was ever discussed in the record.

[00:20:31] Speaker 01:
uh... so these are the only claims in response to our representative claim analysis that it did they also say they dispute your contention that to claim nine sir fully representative of all claims they may have but there was certainly no specific argument other than to the claims that the district court that on went on to specifically analyze so

[00:20:54] Speaker 05:
They did challenge the use of claim nines as representative.

[00:20:59] Speaker 01:
As representative.

[00:21:00] Speaker 01:
And the only arguments they made were specifically with respect to those dependent claims 11, 14, and 16.

[00:21:07] Speaker 01:
And the district.

[00:21:08] Speaker 05:
I'm reading from document 75, which I don't think is in the joint appendix, but it was in the record.

[00:21:16] Speaker 05:
For example, claim 11.

[00:21:17] Speaker 05:
they refer to.

[00:21:18] Speaker 05:
Similarly, claim 14, those are the two claims.

[00:21:22] Speaker 05:
But usually that terminology is exemplary, not necessarily exclusive.

[00:21:27] Speaker 01:
Sure.

[00:21:28] Speaker 01:
So I think the content extraction and transmission versus Wells Fargo Bank at 776 Fed 3rd, 1343, Pinsight 1348 is very

[00:21:42] Speaker 01:
on point here.

[00:21:43] Speaker 01:
Now, what that court held is that once a representative claim has been identified, then the burden is on the plaintiff to identify specific claims that are not fairly represented.

[00:21:57] Speaker 01:
That's what happened here, right?

[00:21:58] Speaker 01:
They identified claims 11, 14, and 16 in both patents as not being fairly representative.

[00:22:05] Speaker 01:
What the district court was not required to do

[00:22:08] Speaker 01:
was go digging through all of the other claims and trying to come up with its own arguments as to why claim nine was not representative and ultimately

[00:22:20] Speaker 01:
I mean, the court says it used representative claims.

[00:22:25] Speaker 01:
But in reality, the court specifically analyzed not only the independent claims, but also didn't just say claims 11, 14, and 16 are representative and there's nothing else that matters there.

[00:22:38] Speaker 01:
The court actually looked at the contents of those claims.

[00:22:42] Speaker 01:
And if you look at the court's order, the appendix, I believe it's seven and eight and nine,

[00:22:48] Speaker 01:
There's a slight portion that goes over to page 9.

[00:22:51] Speaker 01:
The court goes through in great detail exactly why those claims don't change the analysis under Alice.

[00:22:59] Speaker 01:
Not that don't change the representative claim argument, right?

[00:23:05] Speaker 01:
But the court actually says and finds that those dependent claims are invalid under Alice.

[00:23:13] Speaker 04:
The court refers to asserted claims

[00:23:18] Speaker 04:
with a capital A and a capital C. And then earlier, Appendix 5, the plaintiff alleges to use the aforementioned reasserted claims to defend at least Claims 9, et cetera, and then of the other patent.

[00:23:37] Speaker 04:
Are there other unasserted claims that I'm going to duplicate?

[00:23:44] Speaker 01:
As far as the case had gotten, there were not infringement allegations that went beyond those claims.

[00:23:53] Speaker 01:
So could they have alleged infringement of more?

[00:23:56] Speaker 01:
Sure.

[00:23:58] Speaker 01:
Either in the complaint or otherwise.

[00:24:00] Speaker 01:
But at that point, there were not specific infringement allegations beyond those claims.

[00:24:06] Speaker 04:
And since the invalidity is

[00:24:10] Speaker 04:
agreed with respect to the asserted claims to the other survive?

[00:24:20] Speaker 01:
Again, I don't believe so.

[00:24:21] Speaker 01:
I believe that the court was addressing the entire patents.

[00:24:24] Speaker 01:
But at a minimum, I would say that the asserted claims were invalid.

[00:24:30] Speaker 01:
And I would say that claim 14, which was specifically addressed by the court in its order,

[00:24:57] Speaker 01:
Yes, Your Honor.

[00:24:58] Speaker 01:
So I believe, I would say at a minimum, that the claims that were asserted in both patents against my client are invalid.

[00:25:08] Speaker 01:
Unless there are any other questions, I would ask that the court affirm the district court's rule.

[00:25:15] Speaker 04:
Thank you.

[00:25:17] Speaker 04:
Mr. Bader.

[00:25:18] Speaker 04:
Mr. Ruffinberg.

[00:25:22] Speaker 00:
Yes.

[00:25:23] Speaker 00:
Just a few points in response.

[00:25:26] Speaker 00:
I think, first of all, the fact that I think it's difficult for all of us to understand which claims are invalidated and which ones aren't, I think goes to the fact that the way that the representative issue was raised here is not clear.

[00:25:39] Speaker 00:
And I went back and tried to find it in the brief.

[00:25:41] Speaker 00:
And I think the point that was in the appendix page 275 in the footnote

[00:25:46] Speaker 00:
where the moving party at the time said that the exact same narrative applies with respect to the subject matter of claims 11 and 16 of the two patents.

[00:25:55] Speaker 00:
And then it goes on to say that the subject matter of those two claims was found to be obvious in a different patent, which I don't think is relevant here.

[00:26:03] Speaker 00:
So I don't think.

[00:26:04] Speaker 05:
You're reading from 275.

[00:26:06] Speaker 00:
271.

[00:26:06] Speaker 00:
271.

[00:26:08] Speaker 00:
Yes.

[00:26:10] Speaker 02:
Do you think anything here with respect to representative claims was done differently than what we said in content extraction was okay?

[00:26:17] Speaker 00:
I do, because I think what needed to be done there was for somebody to come back and say that they were, I think two things.

[00:26:24] Speaker 00:
I think number one,

[00:26:26] Speaker 00:
I think the plaintiff on that point didn't come back and say that there are other claims here that we need to look at, and this is not exhaustive.

[00:26:34] Speaker 00:
I don't think that happened in content extraction, as I recall.

[00:26:38] Speaker 02:
But you came back and admittedly you said, for example, but you only discussed three or maybe six, because it was three claims in each of two patents.

[00:26:46] Speaker 02:
What is the district court supposed to do if you're not going to go to the trouble of pointing out the supposedly material patentable differences?

[00:26:56] Speaker 00:
Well, I think there's another thing at work here, which is this is a motion to dismiss.

[00:27:02] Speaker 00:
In the Ninth Circuit in particular, the Ninth Circuit has said, when it comes to the motion to dismiss phase, for an affirmative defense, I don't have to say anything as the plaintiff.

[00:27:13] Speaker 00:
The motion to dismiss should only be granted if there's nothing I could say to overcome it.

[00:27:18] Speaker 00:
This isn't a summary judgment motion.

[00:27:20] Speaker 02:
Right, but so the district court here, I think you'd have to acknowledge the patent can be looked at in connection with evaluating an affirmative defense on a motion to dismiss, right?

[00:27:29] Speaker 00:
I agree with that.

[00:27:30] Speaker 00:
But I think in the Ninth Circuit, the Ninth Circuit has been actually very strict about this issue.

[00:27:34] Speaker 00:
And the Ninth Circuit law, I think regional circuit law applies in evaluating the procedure for a motion to dismiss.

[00:27:40] Speaker 00:
And the Ninth Circuit has said when it comes to a motion to dismiss, you really have to

[00:27:46] Speaker 00:
preclude the possibility of the claim survives in order to dismiss and i don't see why that would that standard wouldn't apply and why do you think that standard wasn't applied and satisfied here the the district court reviewed your patent

[00:28:01] Speaker 00:
reviewed your allegations and said there's nothing invented in any of the claims anybody's talked about well because i don't think it's my obligation to talk for example claim twenty one is a means plus function claim no one talked about that but i didn't talk about it the other side didn't talk about it i don't think the district court can invalidate a claim they haven't talked about

[00:28:22] Speaker 00:
The last thing I was going to say is that even in talking about claim construction, I think part of the argument that the appellee made below and is making here is we're not sure what the claim construction is.

[00:28:34] Speaker 00:
There was an implied claim construction that the claims would cover even what a human being does.

[00:28:39] Speaker 00:
I think the appellee wasn't sure whether the claim would cover the QR code.

[00:28:44] Speaker 00:
We think it wouldn't.

[00:28:46] Speaker 00:
But inherent in that discussion is a claim construction.

[00:28:48] Speaker 00:
And lastly, on the conventional, this idea that you have to look at whether this is conventional, that's, I agree, that's a prior art invalidity issue, and it's not part of a step one analysis as to whether the claims are abstract.

[00:29:00] Speaker 04:
Thank you.