[00:00:00] Speaker 03:
That leads us to the third CEDAW case, number 222120, CEDAW-Mobile versus Mr. Yang this time.

[00:00:13] Speaker 01:
Good morning, Your Honor.

[00:00:15] Speaker 01:
May I please record my name is Mitch Yang, and I represent the appellants of CEDAW-Mobile.

[00:00:20] Speaker 01:
As we all know, the first step of the Alice Mayo test is to determine whether the claims are directed to a patent-eligible

[00:00:28] Speaker 01:
And I want to emphasize that what this requires is us to first identify what concept the claims are directed to and then ask, is that concept eligible or ineligible?

[00:00:39] Speaker 01:
That means we look at the claim language in light of the specification, find the concept of that claim,

[00:00:45] Speaker 01:
and then test it for abstractness by asking, is the concept abstract or concrete?

[00:00:51] Speaker 01:
Step one does not say that we should conceive of an abstract idea and then ask whether the claims could arguably fall within the limits of that abstract idea.

[00:01:02] Speaker 01:
And the reason for this is because the Supreme Court cautioned in Mayo.

[00:01:05] Speaker 01:
All inventions at some level embody abstract ideas.

[00:01:08] Speaker 01:
Under the Alice Mayo inquiry, you have to start by identifying the concept of the claim.

[00:01:12] Speaker 04:
Are you suggesting that the PTAB actually did that?

[00:01:15] Speaker 04:
That they said, this is an abstract idea, so therefore let me look at the claims and see how I can pigeonhole them into an abstract idea?

[00:01:22] Speaker 01:
That is the exact reason that I am here today, Your Honor.

[00:01:25] Speaker 01:
Because if you look at the final written decision,

[00:01:27] Speaker 01:
The board said, here is appellant's abstract idea, and for this reason we believe that the claim does not meet step one.

[00:01:37] Speaker 01:
But the error of this is that the final decision has to look at the claim language and view the specification and first determine what

[00:01:45] Speaker 01:
the claim is directed to.

[00:01:46] Speaker 01:
The board never did that.

[00:01:48] Speaker 01:
The board did state that the claim was directed to.

[00:01:52] Speaker 04:
The board stated an abstract idea and thought that this abstract idea... Can you tell me what page of the board's decision you're relying on?

[00:02:01] Speaker 01:
Certainly, Your Honor.

[00:02:04] Speaker 01:
I'm relying on...

[00:02:36] Speaker 01:
Starting with Appendix 29, where it discusses the first step of the Alasdair judicial test, the board states that, here, petitioner asserts that the challenge claims are directed to an abstract idea of managing distribution of audio and video content based on characteristics of the consumer.

[00:02:53] Speaker 01:
So the board has already had that abstract idea in mind.

[00:02:56] Speaker 01:
And then further on in the discussion.

[00:02:58] Speaker 04:
But this is just saying what the party's arguments are.

[00:03:01] Speaker 01:
That's true, but that's the abstract idea that it came up with, and then it found that they... They didn't agree with the petitioner.

[00:03:07] Speaker 01:
That's true, but the board has to analyze the claim language first, in order to come up with the concept behind the claim language, and then ask whether that concept is abstract or concrete.

[00:03:15] Speaker 04:
Senator, do you have a view to reply here?

[00:03:18] Speaker 01:
The standard review is de novo review because this is an issue, this is a legal issue.

[00:03:24] Speaker 01:
The legal issue here is that the board has to look at the claim language and come up with the concept, then ask whether the concept is abstract.

[00:03:30] Speaker 03:
If it's de novo review, what difference does it make exactly how the board approached it?

[00:03:36] Speaker 03:
So why don't you tell us why the board's characterization of the abstract idea is wrong?

[00:03:41] Speaker 01:
Certainly, that was going to be my next point.

[00:03:44] Speaker 01:
I think the board's characterization of this abstract idea is wrong because it omits several inventive claim elements that are in the claim language and objectively this abstract idea is too broad to be the claim concept.

[00:03:58] Speaker 01:
So if you look at claim 98, the claim specifies several elements over the base abstract idea of merely distributing audio and video content based on consumer characteristics, which is what the board said.

[00:04:09] Speaker 01:
These are one, identifying and streaming portions of the requested media, and two, based on one or more technical capabilities of the communication device.

[00:04:18] Speaker 01:
Neither of these ideas, which is the inventive process that we mentioned, are found in the board's abstract idea.

[00:04:25] Speaker 01:
So the abstract idea is missing these two elements.

[00:04:28] Speaker 04:
We can tell that the inventive... What makes those elements a technological advantage that overcomes a technological problem?

[00:04:37] Speaker 04:
How is it technological that you're going to distribute portions, bearing in mind that we might think that portions could include an entire video and an entire movie, for example?

[00:04:51] Speaker 01:
Well, respectfully, Your Honor, the construction of portions that we're using is that the portion does not constitute an entire video.

[00:04:59] Speaker 01:
Under the plain, ordinary meaning of the word portion, it has to be a subset of the ho, and the ho is the movie, according to the patent specification.

[00:05:07] Speaker 01:
I suppose we reject that.

[00:05:10] Speaker 01:
So even if you reject it, the technological improvement here is that you're distributing portions of the whole to different resource servers.

[00:05:18] Speaker 01:
So each resource contains different portions thereof.

[00:05:22] Speaker 01:
It's not all contained in one resource.

[00:05:24] Speaker 01:
You have multiple resources.

[00:05:25] Speaker 03:
That seems to assume that you're right on the claim construction issue.

[00:05:28] Speaker 03:
If you're wrong on the claim construction issue about what portions means,

[00:05:33] Speaker 03:
that argument goes away.

[00:05:34] Speaker 01:
Well, respectfully, Your Honor, I don't believe that's true, because the claim itself says that the resource stores portions.

[00:05:41] Speaker 03:
So even if the portion... You're arguing something which I've just asked you to assume you lose on.

[00:05:48] Speaker 01:
No, Your Honor.

[00:05:48] Speaker 01:
Respectfully, I am not.

[00:05:49] Speaker 01:
What I'm saying is that each resource stores a portion.

[00:05:53] Speaker 01:
So even if the portion has a hoe, each of those hoes has to be stored in a different resource.

[00:05:59] Speaker 01:
That's different than what you're saying.

[00:06:02] Speaker 01:
What I'm saying is that you have to have multiple resources, and these resources are distributing the portions themselves.

[00:06:08] Speaker 01:
Even if the portions are ARAHO.

[00:06:10] Speaker 04:
How does the idea of having different repositories, if you will, of different video storage and distributing what I just said, how is distributing the movies or the video content

[00:06:28] Speaker 04:
What makes that more than an abstract idea?

[00:06:31] Speaker 01:
Well, Your Honor, it's not just about distributing video content.

[00:06:35] Speaker 01:
That was the point I was making about the board coming up with the wrong concept and then applying that.

[00:06:40] Speaker 01:
This is about distributing the media.

[00:06:43] Speaker 01:
And the media is divided into portions.

[00:06:45] Speaker 01:
The portions are stored on various resources.

[00:06:48] Speaker 01:
And then they're selecting those resources based on the capabilities of the communication device.

[00:06:53] Speaker 01:
So in the specific

[00:06:57] Speaker 02:
So the technological advance here, to go back to Judge Stoll's question, is the idea of storing portions of a resource on different servers.

[00:07:10] Speaker 02:
Is that the crux of your argument?

[00:07:12] Speaker 01:
That's partially correct.

[00:07:14] Speaker 01:
But it's not the complete answer.

[00:07:16] Speaker 01:
The complete answer is that in addition to storing these portions on different resources, you're then selecting the appropriate resource to distribute the portion, each individual portion, to the communication device based on the capabilities of the communication device.

[00:07:33] Speaker 01:
That's the second half of it.

[00:07:34] Speaker 01:
So together, what you're doing is you're distributing the whole into portions, putting them on all these various resources.

[00:07:41] Speaker 01:
then you're selecting the appropriate resource based on the capabilities of the communication device.

[00:07:47] Speaker 01:
all within the language of the claims.

[00:07:48] Speaker 01:
It's all over the claims.

[00:07:50] Speaker 01:
And that is what we contend to be the concept here that should have been applied for step one.

[00:07:56] Speaker 01:
Not merely distributing media as a whole, but dividing the media into specific portions, putting them on different resources, and then selecting the resources to distribute based on the capabilities of the communications.

[00:08:12] Speaker 04:
What are the problems I'm having with your recitation

[00:08:15] Speaker 04:
what the inventive concept is, is that the claim seems broader, setting aside portions for a minute.

[00:08:24] Speaker 04:
It talks about using at least one resource other than the at least one computing resource.

[00:08:32] Speaker 04:
And so the claim is false.

[00:08:35] Speaker 04:
It doesn't seem to be talking about multiple resources.

[00:08:38] Speaker 04:
Am I missing something?

[00:08:40] Speaker 01:
Yes, Your Honor.

[00:08:41] Speaker 01:
I believe that the independent claim itself is broad, but there are certain dependent claims that talk about additional portions and additional resources.

[00:08:49] Speaker 04:
Would you argue it's a dependent claim separately with respect to one-on-one?

[00:08:54] Speaker 01:
We did argue that claim 98 is not representative.

[00:08:58] Speaker 01:
And the dependent claims are a reason for why those claims are not representative.

[00:09:03] Speaker 04:
Do you argue the dependent claim separately?

[00:09:05] Speaker 01:
We did argue that the dependent claims require additional, more than one segment or portion.

[00:09:14] Speaker 04:
But your great claim 98 doesn't.

[00:09:17] Speaker 01:
I agree that claim 98 recites one portion.

[00:09:20] Speaker 01:
And then, for example, claim 90 recites an additional portion.

[00:09:23] Speaker 01:
So claim 90, similar to the arguments of the previous... Well, I agree with that portion, but I also agree with that resource.

[00:09:30] Speaker 01:
Well, each resource is assigned... Each portion is assigned to a resource.

[00:09:33] Speaker 01:
So if you have an additional portion, you would have an additional resource.

[00:09:36] Speaker 04:
Where is that in the claim?

[00:09:39] Speaker 04:
Or any claim that each portion is assigned a resource?

[00:09:59] Speaker 01:
If you look at Clue 98, what it says is that to obtain at least one portion of the requested media using at least one resource.

[00:10:07] Speaker 01:
So the resource is providing the at least one portion.

[00:10:27] Speaker 01:
So to illustrate the technological nature of the claims, I want to consider a please real world analogy on page nine of their brief, which is a movie theater for customers to watch movies, where you buy a movie ticket, get the movie ticket, and watch the movie.

[00:10:40] Speaker 01:
But as I just explained, the claim concept is more than that.

[00:10:42] Speaker 01:
You have to divide the movie up into best portions, then you have to have different resources serving each of those portions based on the capabilities of the communication device.

[00:10:52] Speaker 01:
What that entails is that you can't just buy a movie for the entire, you can't buy a ticket for the entire movie.

[00:10:56] Speaker 01:
You have to buy a ticket for each individual part of the movie.

[00:10:59] Speaker 01:
Then you go into different movie theaters based on the capabilities of those theaters.

[00:11:03] Speaker 01:
So essentially you have multiple tickets.

[00:11:05] Speaker 01:
You would jump in and out of movie theaters based on which movie theater had the best, for example, sound or the best lighting for that specific segment or portion you're interested in.

[00:11:13] Speaker 01:
And then you would go back and forth between all these theaters.

[00:11:16] Speaker 01:
That is just not a practical real world analogy to what the technology is here.

[00:11:21] Speaker 01:
That's not within the technical capabilities of a movie watcher either.

[00:11:24] Speaker 01:
I personally have never jumped out of a movie theater multiple times because I wasn't happy with the capabilities of that particular theater.

[00:11:32] Speaker 01:
That is why, once you have the right inventive concept in mind, this isn't an abstract idea with a real world analog.

[00:11:38] Speaker 01:
Nobody in a brick and mortar environment is going to do what the claims of the 887 Patton are directed towards.

[00:11:44] Speaker 01:
There's no reason to do this outside of an internet environment.

[00:11:48] Speaker 01:
And I see that I'm in a rebuttal time, so unless your honor has

[00:11:51] Speaker 01:
Any further questions, I'd like to reserve the rest of my time for rebuttal.

[00:12:10] Speaker 00:
Good morning and may it please the Court of Brett Williamson for the Appellee Hulu.

[00:12:14] Speaker 00:
I will be very brief.

[00:12:15] Speaker 00:
The Court and Judge Stolt in particular has identified the problem.

[00:12:21] Speaker 00:
This claim, which was agreed through the briefing at least, there's no argument about claim 90 or any other claim.

[00:12:28] Speaker 00:
Claim 98, there's been no objection in the briefs before this court.

[00:12:33] Speaker 00:
It is not exemplary.

[00:12:34] Speaker 02:
The claim 98... There was no... I don't recall seeing it, but there was no place in the briefs that's disclaimed the notion that claim 98 is representative.

[00:12:43] Speaker 00:
That is correct.

[00:12:45] Speaker 00:
There is nothing in Climb 98 that talks about multiple different portions being stored in different resources and then streamed in different ways based on different capabilities.

[00:12:57] Speaker 00:
That just doesn't exist.

[00:12:59] Speaker 00:
Even if you could read that

[00:13:02] Speaker 00:
have purported technological innovation into this claim.

[00:13:07] Speaker 00:
In fact, our brief is clear that the expert in this case, when deposed about the patentability issue, acknowledged that this patent does not claim to, nor could it claim to have invented the notion of breaking the

[00:13:25] Speaker 00:
streaming media down for purposes of streaming content into small pieces.

[00:13:30] Speaker 02:
That's not a 101 argument.

[00:13:34] Speaker 00:
I think that's true, but what the argument that appears to be being made here is that the gravamen of this invention, which is of course what Alice asked us to do, is somehow this idea of a technological innovation to divide pieces of media.

[00:13:49] Speaker 00:
There's nothing here.

[00:13:50] Speaker 00:
Not in the specification and certainly not in the claims.

[00:13:53] Speaker 00:
But I just wanted to note as a final point that to the extent that the claim here that this patent and claim 98 are not abstract is to direct this court back to the Affinity Labs case that we cited in our briefing at 838 F3 at 1267.

[00:14:16] Speaker 00:
The Affinity Labs case is directly on point here.

[00:14:20] Speaker 00:
And in fact, the patent there that was found to be unpatentably abstract under Section 101 disclosed a network-based delivery resource maintaining a list of network locations for at least a portion of the content.

[00:14:35] Speaker 00:
The network-based delivery resource configured to respond to the request by retrieving the portion from an appropriate network location and streaming a representation of the portion

[00:14:45] Speaker 00:
to the handheld wireless device.

[00:14:47] Speaker 00:
That's much more detailed than the claim here, and that claim was found by this court to be unpatentable.

[00:14:56] Speaker 00:
And was there other questions?

[00:14:59] Speaker 03:
That's all I have.

[00:15:17] Speaker 01:
Thank you.

[00:15:18] Speaker 01:
Opposing counsel have just said that Alice asked us to find the gravamen of the invention.

[00:15:25] Speaker 01:
I agree, and that is exactly what the board did not do.

[00:15:28] Speaker 01:
The issue is that the board found an abstract idea that was significantly too broad for what the claim actually specifies.

[00:15:35] Speaker 01:
The concept of the invention isn't simply distributing media.

[00:15:39] Speaker 01:
There's far more than that, as I explained.

[00:15:43] Speaker 01:
Additionally, I heard counsel say that we didn't discuss portions in the brief, and that's certainly not true.

[00:15:49] Speaker 01:
On page two of our opening brief, we have a discussion of portions.

[00:15:53] Speaker 01:
Then on page 22 of the brief, we discuss how reservation of portions is a technological improvement to streaming, which is the crux of my argument here.

[00:16:02] Speaker 01:
Reservation of portions is a technological improvement to streaming.

[00:16:05] Speaker 03:
Reservation?

[00:16:07] Speaker 03:
But I thought this claims didn't talk about reservation.

[00:16:12] Speaker 01:
I apologize, Your Honor.

[00:16:14] Speaker 01:
That was the next point I was going to have, is that even if there's an issue under step one, we point to the communication having three pieces of information.

[00:16:23] Speaker 01:
Those are being the identification of the portion, the identification of the resource, and the one-on-one instructions.

[00:16:30] Speaker 01:
That tells you how to actually perform streaming of the portions.

[00:16:36] Speaker 01:
It's not simply the idea of giving people portions.

[00:16:42] Speaker 01:
The claim itself, through the communication including those three aspects, tells you how to do it.

[00:16:48] Speaker 01:
And I'd also like to point out that a prison counsel didn't discuss the other aspect that I was presenting.

[00:16:54] Speaker 01:
It's that the clone itself specifies based on the capabilities of the communication device, which is different than what we have in Affinity Labs.

[00:17:02] Speaker 01:
The clone here doesn't just specify you have a portion, then you go out and get it.

[00:17:07] Speaker 01:
The clone here says you have multiple portions.

[00:17:09] Speaker 01:
You put these portions on multiple resources.

[00:17:12] Speaker 01:
Then you select the best resource for each

[00:17:16] Speaker 01:
use communication device based on the capabilities of that device.

[00:17:20] Speaker 01:
And you're doing it for the portions stored on the resource.

[00:17:25] Speaker 01:
You're selecting the resources for each portion based on the capabilities of the device for that portion.

[00:17:32] Speaker 01:
So in this way, it's much more detailed than any of the other

[00:17:36] Speaker 01:
cases that opposing counsel suggested were analogous.

[00:17:40] Speaker 01:
In this particular 887 patent, what we're looking at is the specific resources for each portion, and we're selecting those specific resources based on the capabilities of the device.

[00:17:57] Speaker 02:
Do you have a response to your opposing counsel's

[00:18:01] Speaker 02:
suggestion that claim 98 was not contested as being representative.

[00:18:10] Speaker 02:
I didn't say anything in the brief.

[00:18:11] Speaker 02:
Did you have anything in the brief that contested their assertion that 98 was representative?

[00:18:18] Speaker 01:
Well, in the brief, what we said was that claim 98 was representative of the independent claims.

[00:18:22] Speaker 01:
We did not say that claim 98 was representative.

[00:18:24] Speaker 01:
But you didn't say that.

[00:18:25] Speaker 02:
You made no argument with respect to the independent claims.

[00:18:28] Speaker 02:
I take it as being separate from

[00:18:32] Speaker 02:
claim 98 in terms of the arguments you're making today.

[00:18:38] Speaker 01:
I didn't see anything to that effect.

[00:18:39] Speaker 01:
I don't believe you listed out the claim numbers, but the argument is that the individual portions are being served by the different resources.

[00:18:47] Speaker 01:
That's on page 22 of our opening brief.

[00:18:49] Speaker 01:
And the distinction there is that the dependent claims make clear that there are multiple portions involved here.

[00:18:56] Speaker 04:
Is there some place in your blue brief where you say that, that the dependent claims make clear that there's multiple portions?

[00:19:05] Speaker 01:
What we're saying in our blue brief is that portions as... I'm trying to explain it.

[00:19:13] Speaker 01:
I apologize.

[00:19:15] Speaker 01:
What we said in our blue brief is that the independent claims alone, because of the word portions, make clear that there are multiple portions involved here and that they're being serviced from multiple resources.

[00:19:26] Speaker 01:
But to the extent that approving counsel is suggesting that the independent claim does not require multiple

[00:19:32] Speaker 01:
portions, then the defendant claim makes clear that there are actually multiple portions.

[00:19:38] Speaker 04:
Is that in the bill brief?

[00:19:39] Speaker 01:
I don't believe the opposing counsel indicated that there weren't multiple portions in their brief, Your Honor.

[00:19:45] Speaker 01:
But is it in the bill brief?

[00:19:45] Speaker 01:
In the bill brief.

[00:19:48] Speaker 01:
In the bill brief.

[00:19:51] Speaker 01:
I don't believe we have to address an argument that opposing counsel didn't make in their brief.

[00:19:59] Speaker 03:
Okay.

[00:19:59] Speaker 03:
Thank you.

[00:20:00] Speaker 03:
You're out of time.

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

[00:20:02] Speaker 03:
Thank you.