[00:00:00] Speaker 05:
Our next case is number 23, 1778, United Services Automobile Association versus PNC Bank.

[00:00:07] Speaker 05:
Again, Mr. Fleming.

[00:00:09] Speaker 00:
Good morning again.

[00:00:10] Speaker 00:
May it please the court, Mark Fleming with Greg Lanteres, still on behalf of PNC Bank.

[00:00:14] Speaker 00:
This judgment is infirm for a whole host of reasons.

[00:00:17] Speaker 00:
I'm happy to address any of them.

[00:00:19] Speaker 00:
But to be clear, the points made in the last appeal about section 101 apply just as well here.

[00:00:25] Speaker 00:
I don't plan to revisit that in detail unless the court has questions.

[00:00:28] Speaker 00:
But these claims are directed to abstract ideas, and the remaining elements, both individually and as an ordered combination, are just routine photography instructions and conventional data processing steps performed by conventional... Is your argument in terms of improvement over the firewall, et cetera, the MRDC patents essentially the same as your argument we just heard?

[00:00:48] Speaker 00:
Yes, the argument as to all the patents.

[00:00:50] Speaker 00:
I can talk about auto capture if you'd like, but the general principle is exactly the same.

[00:00:54] Speaker 00:
Talk about auto capture.

[00:00:55] Speaker 00:
I beg your pardon?

[00:00:56] Speaker 00:
Talk about auto cab.

[00:00:57] Speaker 00:
Very well, your honor.

[00:00:58] Speaker 00:
Happy to.

[00:00:59] Speaker 00:
So the abstract idea here is simply verifying the image of a check before sending it on to be processed.

[00:01:09] Speaker 00:
It is exactly the same as what this court said in Hawk versus Castle Retail.

[00:01:14] Speaker 00:
The processing of digital images is at most abstract data manipulation.

[00:01:20] Speaker 00:
and comparing a digital image to a monitoring criterion or an alignment guide is merely analyzing two sets of data.

[00:01:28] Speaker 00:
And then capturing the image once it passes the criterion is just again the functional result of the comparison.

[00:01:34] Speaker 00:
And even that is stated at a very high level of abstraction.

[00:01:38] Speaker 00:
The claims don't recite any way of programming or designing software.

[00:01:42] Speaker 00:
There's no algorithm.

[00:01:43] Speaker 00:
There's nothing that they purportedly discovered.

[00:01:45] Speaker 00:
There's no technological improvement that makes the devices better.

[00:01:48] Speaker 00:
It's simply gathering

[00:01:49] Speaker 00:
displaying and analyzing information, just like in trading technologies or in Alice itself, for that matter.

[00:01:56] Speaker 00:
There's some reference in the district court's opinions to histograms.

[00:02:00] Speaker 00:
The spec specifically says a histogram is a well-known graph.

[00:02:04] Speaker 00:
That's page 243 of the appendix, column 9, line 28.

[00:02:07] Speaker 00:
There's no disclosure of how to create one, let alone an innovative one.

[00:02:12] Speaker 00:
And this notion that we heard from Mr. J in the earlier appeal that a human eye can't tell

[00:02:17] Speaker 00:
If the image is good enough and you need a computer for that, well, that is just a classic benefit inherent in automation.

[00:02:24] Speaker 00:
Computers do all kinds of things better or faster or more accurately than human beings do.

[00:02:30] Speaker 00:
But these claims don't improve the computer itself.

[00:02:34] Speaker 00:
They just use existing capabilities and characteristics in the specific environment of check deposit.

[00:02:40] Speaker 00:
And reciting specific monitoring criteria, like adequate light brightness or adequate positioning,

[00:02:46] Speaker 00:
doesn't change that.

[00:02:48] Speaker 00:
Again, those are recited just as results, and there's nothing in the claim that teaches us how the computer tells if an image is good enough.

[00:02:56] Speaker 00:
So unless the court has further questions on this, we think this is all the court needs to decide.

[00:03:01] Speaker 00:
If these claims are ineligible, you don't need to decide any of the other issues in this case.

[00:03:06] Speaker 00:
However, there's a few that I would address with the court's indulgence.

[00:03:09] Speaker 03:
What's the improvement over the prior art?

[00:03:11] Speaker 00:
I think for auto capture, the stated improvement over the prior art is,

[00:03:16] Speaker 00:
that the computer itself takes the picture when it decides that it is inadequate positioning and with sufficient lighting.

[00:03:25] Speaker 00:
The computer automatically, hence auto-captured, decides when to take the picture as opposed to having the user... Well, it could be either.

[00:03:36] Speaker 00:
It could be either the bank computer tells the device, take the picture now, or it could be that there's software on the device that says, take the picture now,

[00:03:45] Speaker 03:
and then the picture automatically is taken, as opposed to having the user press the little... If you take your camera and you point it to the check, there's something that tells you to do that?

[00:03:55] Speaker 03:
Software tells you?

[00:03:57] Speaker 00:
So we have designed around this.

[00:04:00] Speaker 00:
We don't use this feature anymore.

[00:04:02] Speaker 00:
So I'm just having trouble understanding... No, and the best way for me to explain it is in contrast.

[00:04:07] Speaker 00:
So what our app now does, which is why we're not accused of infringing this,

[00:04:13] Speaker 00:
is when the software determines that the check image is in a state to be taken, then you, the user, have to press the little button on your phone, right?

[00:04:25] Speaker 00:
The little image of the button on your phone that says take a picture?

[00:04:27] Speaker 00:
You press the picture there.

[00:04:30] Speaker 00:
Correct.

[00:04:31] Speaker 00:
What the auto capture patent recites is that instead of making you press the button,

[00:04:38] Speaker 00:
the phone will automatically, itself, take the check, and take a picture of the check and say, okay, we're ready to go now.

[00:04:43] Speaker 00:
You don't have to press the button.

[00:04:44] Speaker 00:
That is the asserted advance over the prior art.

[00:04:47] Speaker 00:
It's such a minor little thing.

[00:04:49] Speaker 03:
The prior art didn't exist.

[00:04:51] Speaker 03:
The phones weren't being used in prior art.

[00:04:55] Speaker 03:
The prior art, right?

[00:04:59] Speaker 03:
Were phones being used to make deposits?

[00:05:03] Speaker 00:
I'm sorry.

[00:05:06] Speaker 00:
in terms of what was actually being done in the market or what was known to a person of skill in the art?

[00:05:12] Speaker 00:
Because in terms of what was known, by 2009, the iPhone was out.

[00:05:17] Speaker 00:
I mean, everyone knew you could use a phone to take a picture, right?

[00:05:20] Speaker 00:
The iPhone came out in 2000.

[00:05:21] Speaker 03:
It was interesting to me that what the patents were drawn to were the problems that a consumer has when a consumer uses the phone to make the deposit.

[00:05:30] Speaker 03:
It gets it straight, it doesn't get it straight, the light's wrong.

[00:05:34] Speaker 00:
So there is nothing in the claim that recites anything technical about how to solve that problem.

[00:05:40] Speaker 00:
Even assuming that that is a problem, I'm happy to assume that arguendo.

[00:05:45] Speaker 03:
I'm still trying in my analysis to get by what the improvement over the art is and what the abstract idea is.

[00:05:51] Speaker 00:
Yeah.

[00:05:51] Speaker 00:
So the abstract idea is, this is all directed to verifying that the image is adequate.

[00:05:58] Speaker 00:
Who knows what adequate means.

[00:05:59] Speaker 00:
It's not stated in the claims.

[00:06:01] Speaker 00:
but adequate for processing before the picture is taken, as opposed to taking the picture, sending it off, and then having someone say, oh, no, this isn't good enough.

[00:06:09] Speaker 00:
You check the adequacy before you take the picture.

[00:06:12] Speaker 02:
But that is, yes, sir.

[00:06:14] Speaker 02:
To make it easier to talk about this in context, can you give us the auto capture claims that we're talking about where they are?

[00:06:20] Speaker 02:
Sure.

[00:06:20] Speaker 02:
We can look at them.

[00:06:21] Speaker 00:
Yes, happy to do that.

[00:06:25] Speaker 02:
So.

[00:06:34] Speaker 00:
So this is the 571 patent, page 249 of the appendix, 249.

[00:06:40] Speaker 00:
It's also in the addendum to our blue brief, if that's easier.

[00:06:46] Speaker 00:
And then the independent claims here are claim one and claim nine.

[00:06:55] Speaker 00:
And claim one says that the standard introductory non-transitory computer readable medium comprising

[00:07:02] Speaker 00:
Instructions for depositing a check, again that's what we're directed to here, depositing a check, that when executed calls the processor to monitor an image of the check in the field of view of a camera of a mobile device with respect to a monitoring criterion using an image monitoring and capture module of the mobile device.

[00:07:23] Speaker 00:
Then capture the image of the check with the camera when the image of the check passes the monitoring criterion.

[00:07:30] Speaker 00:
and provide the image of the check from the camera to a depository via a communication pathway between the mobile device and the depository.

[00:07:39] Speaker 00:
Nothing here makes a mobile device... What about claims 12 and 13?

[00:07:43] Speaker 00:
Yeah.

[00:07:45] Speaker 00:
The monitoring criterion comprises light contrast or light brightness, and then 13 is skewing or warping.

[00:07:51] Speaker 00:
Nothing in those claims, or for that matter in the spec, says how the computer readable medium

[00:07:59] Speaker 00:
evaluates light contrast, light brightness, skewer warping.

[00:08:02] Speaker 00:
It doesn't say against what standard it's monitored, and certainly does not suggest there's anything innovative from a technical point of view that the phone couldn't do before.

[00:08:12] Speaker 00:
It's simply using the ability of the phone to have a...

[00:08:20] Speaker 00:
Yes, in some ways.

[00:08:21] Speaker 00:
That's what it is.

[00:08:22] Speaker 00:
Sure.

[00:08:22] Speaker 03:
That's not whether it's abstract.

[00:08:24] Speaker 00:
No, it does.

[00:08:25] Speaker 00:
And this court has said sometimes the considerations will overlap a little bit.

[00:08:29] Speaker 00:
And that's because you're looking at what is it exactly?

[00:08:31] Speaker 00:
Are they purporting to improve the problem?

[00:08:33] Speaker 03:
The image monitoring and capture modules on 112F.

[00:08:37] Speaker 03:
old 126 limitation, right?

[00:08:39] Speaker 00:
It is.

[00:08:40] Speaker 03:
The court found that.

[00:08:40] Speaker 03:
And so all of the structure that's in the spec gets imported into the claim?

[00:08:45] Speaker 00:
This was construed by the district court to mean image capture and monitoring module 456.

[00:08:52] Speaker 03:
And the spec talks about the problems of skewing and focus and all of that.

[00:08:57] Speaker 00:
Well, it doesn't provide any structure.

[00:08:58] Speaker 00:
And this is a separate problem we have in this appeal, right?

[00:09:01] Speaker 00:
There's no actual structure disclosed for the image monitoring and capture module.

[00:09:06] Speaker 00:
It simply restates the function itself.

[00:09:08] Speaker 03:
Well, you claim that in your... Yeah, that's a different... It would be wrong on the end of the day if we agree that the claims are not indefinite.

[00:09:16] Speaker 00:
That is true.

[00:09:16] Speaker 00:
You do not need to worry about anything.

[00:09:18] Speaker 03:
Then we pick up the so-called structure of the spec, and the structure is some type of a device for dealing with, or algorithm in dealing with the problem of focus, of light, of misdirection, right?

[00:09:33] Speaker 00:
There is no structure cited that actually goes even to the level your honor has just stated.

[00:09:39] Speaker 00:
All it says is there is an image monitoring and capture module 456.

[00:09:43] Speaker 00:
The district court construed that as a camera and related software.

[00:09:47] Speaker 02:
There's nothing more than that.

[00:09:49] Speaker 02:
On claims 12 and 13, instead of monitoring criteria, it would tell you specifically

[00:09:56] Speaker 02:
if it approaches this range of light contrast or this range of brightness and had actual parameters for all of those things, and the same thing for this goo and the warping, would that have been sufficient to make it eligible if they put in, essentially, I know we throw this word around, but I'm going to throw it around again, an algorithm of these are the criteria you have to meet before you automatically take the picture.

[00:10:22] Speaker 00:
So I think that would still be just claiming the results, right?

[00:10:26] Speaker 00:
It's like putting parameters into a claim as happened in a past.

[00:10:29] Speaker 00:
But that's starting to sound a little bit like McGraw to me.

[00:10:32] Speaker 00:
No, because in McGraw, there was a new way of actually figuring out how to animate this stuff that wasn't being done by human animators.

[00:10:43] Speaker 00:
This, on the other hand, if you were to redraft the claim the way you want it to be described.

[00:10:47] Speaker 02:
Why was there a new way of figuring out

[00:10:50] Speaker 02:
when a picture of a check is going to be sufficient to use for this processing purpose so that it automatically takes it.

[00:11:00] Speaker 00:
Because that's just, unless there were some disclosure or explanation as to what the device is doing that it couldn't do before that was supposedly being improved, merely reciting, use your device to accomplish this result, to check for this data.

[00:11:16] Speaker 00:
Remember, the image is just data, right?

[00:11:18] Speaker 00:
And so all you're asking the phone to do is to look at the data and see if it matches a particular level.

[00:11:24] Speaker 00:
That is just obtaining and comparing one set of data to another.

[00:11:27] Speaker 05:
You never argued that this was done by cameras, conventionally.

[00:11:33] Speaker 00:
Cameras, like the old Nikon camera?

[00:11:35] Speaker 00:
No.

[00:11:38] Speaker 00:
We never argued check.

[00:11:39] Speaker 00:
I mean, we don't have to argue, first of all, that check deposits are very important.

[00:11:43] Speaker 05:
You did not argue that cameras have long done what this disclose is doing.

[00:11:49] Speaker 00:
We certainly have argued that consumer mobile devices have done what this is claiming to do, which is receiving, processing, and comparing data.

[00:12:01] Speaker 00:
We certainly argued that.

[00:12:03] Speaker 00:
And the abstract idea here, I mean, even their own articulation... Mobile devices in the check deposit art?

[00:12:09] Speaker 05:
Not in check deposit art specifically, we're not confining... You're not talking about mobile devices automatically taking pictures, right?

[00:12:17] Speaker 00:
Well, a mobile device automatically taking a picture is not something that they claim to have invented.

[00:12:25] Speaker 00:
A mobile device taking a picture by itself when a certain condition has been met

[00:12:31] Speaker 00:
is something mobile devices can always do.

[00:12:33] Speaker 00:
And again, the proof of that is they don't disclose any way of doing it.

[00:12:37] Speaker 00:
They don't have any kind of technical innovation that says, you know, previously, phones required the user to press a button.

[00:12:43] Speaker 00:
Now we don't have to do that.

[00:12:44] Speaker 02:
That was what I was trying to get at with my hypothetical, is if it had more specific criterion here for when it would do it.

[00:12:51] Speaker 02:
It does seem to me different than just a user using

[00:12:56] Speaker 02:
putting it over and taking a picture of the camera.

[00:13:00] Speaker 02:
This is taking the user essentially out of the equation for determining when the picture is going to be sufficient, because it just, I mean, a lot of us who use these devices, I don't think it's disqualifying for me to suggest how to use these.

[00:13:14] Speaker 02:
You hold the phone over it, and it's pretty, it is, in a way, a very good idea, whether it makes it eligible or not, it's a different story.

[00:13:22] Speaker 02:
You don't have to retake the photo ever.

[00:13:23] Speaker 02:
Under the older versions, and apparently your new version, you might have to retake the photo if by the time you push the button when it said it was okay, it's not okay again.

[00:13:32] Speaker 02:
This one, it only will snap it if it's okay.

[00:13:36] Speaker 02:
And that okay must depend on specific criterion.

[00:13:42] Speaker 02:
The question is if this is claimed anywhere in the patent or the specification.

[00:13:47] Speaker 02:
It seems to me that if it's actually claimed, then that really does bring it closer to macro.

[00:13:52] Speaker 00:
I think in order for that to be eligible, the patentee would have to have explained what it invented that made it possible

[00:14:03] Speaker 00:
for a phone to take a picture automatically as opposed to having the user do it.

[00:14:07] Speaker 00:
That's not something they have invented.

[00:14:09] Speaker 00:
They don't claim to have invented that.

[00:14:11] Speaker 00:
There's nothing in the specification that says they invented that.

[00:14:14] Speaker 00:
All they're doing is taking that pre-existing capability and applying it to the context of taking a photograph of a check once it matches a particular result.

[00:14:25] Speaker 00:
And that is not, all that's doing is taking the abstract idea and applying it in a narrowed circumstance, which has never been enough.

[00:14:32] Speaker 00:
Because there is nothing, and one can look through this spec, it's a different spec from the one I was talking about in the previous appeal, but it is written at just as high a level of generality.

[00:14:42] Speaker 00:
There's nothing there at all suggesting that they invented anything technical that suddenly made it possible for a phone to take a picture automatically.

[00:14:50] Speaker 00:
That was a pre-existing capability.

[00:14:52] Speaker 05:
that they have not even... 7-7-9 is also an auto-capture patent?

[00:14:56] Speaker 00:
It is, Your Honor.

[00:14:56] Speaker 00:
It is one of the ones that was not tried.

[00:14:59] Speaker 05:
Same arguments?

[00:15:00] Speaker 05:
Well, you're trying to appeal that, right?

[00:15:01] Speaker 00:
Yes, absolutely.

[00:15:02] Speaker 00:
Yes, same arguments.

[00:15:03] Speaker 00:
Absolutely.

[00:15:04] Speaker 00:
Yes.

[00:15:06] Speaker 00:
There are alternative arguments on these patents.

[00:15:09] Speaker 00:
Reversal on any one of them requires a new trial on everything because of how the verdict form was struck.

[00:15:13] Speaker 00:
So I'm happy to talk about any of the other issues.

[00:15:17] Speaker 00:
I'm also happy to answer any questions the court has.

[00:15:20] Speaker 05:
Any round of time.

[00:15:21] Speaker 05:
We'll give you two minutes for a bottle.

[00:15:23] Speaker 05:
Thank you, Your Honor.

[00:15:31] Speaker 01:
Thank you, Your Honor.

[00:15:32] Speaker 01:
I'll start with one very minor point about the 779 question that you just asked.

[00:15:37] Speaker 01:
Even if you reach the 779 patent, what Mr. Filaming just said is not right, because it was not tried.

[00:15:41] Speaker 01:
That would not be a basis for reversing the judgment.

[00:15:44] Speaker 01:
a small point, but an important one.

[00:15:47] Speaker 01:
So if I can... You're going to argue that out in the district court.

[00:15:55] Speaker 05:
That's what we're going to order you to do, okay?

[00:15:59] Speaker 01:
Understood.

[00:16:00] Speaker 01:
So if I can, I'll start with the auto-capture patent.

[00:16:05] Speaker 01:
But I certainly want to talk about the MRDC patents as well.

[00:16:09] Speaker 01:
I think that, as Judge Hughes pointed out, the dependent claims give some specificity about what the monitoring criteria are.

[00:16:18] Speaker 01:
There is more specificity on that in Columns 3 and 4 of the specification.

[00:16:22] Speaker 01:
And that passage, which begins at Appendix 240 and Column 3, the last full carryover paragraph from Columns 3 to 4, this all explains

[00:16:35] Speaker 01:
what this is getting at.

[00:16:36] Speaker 01:
This is not the abstract idea of having the phone take a picture when the user would otherwise have pushed the button.

[00:16:46] Speaker 01:
This is about generating a compliant image that will accomplish check deposit without depending on the user's judgment or the user's fumble fingers.

[00:16:58] Speaker 03:
Prior art phones could take the pictures, right?

[00:17:01] Speaker 01:
Prior art phones could take pictures, yes.

[00:17:04] Speaker 03:
And prior art phones were not being used to make deposits.

[00:17:09] Speaker 01:
Prior art phones were not being used to make deposits, right?

[00:17:12] Speaker 01:
This is, you know, we're still in the 2000s.

[00:17:15] Speaker 03:
So basically the problem is that if you just allow a human being, if you just said to the human being, here, use your camera and take a picture of a check and deposit it, the customer can make a bunch of mistakes.

[00:17:27] Speaker 01:
That's exactly right.

[00:17:27] Speaker 01:
And that accords with the experience of uploading photos for deposits

[00:17:33] Speaker 01:
as opposed to taking mobile photos and submitting them.

[00:17:39] Speaker 03:
Capturing an image is difficult.

[00:17:40] Speaker 03:
That's what it says in column one.

[00:17:42] Speaker 01:
Capturing an image is difficult.

[00:17:44] Speaker 01:
But capturing a compliant image requires judgments that a human can't make, because the technical questions that go to a digital picture of a check are different than the technical.

[00:17:56] Speaker 03:
Does the human want to know whether there's enough light on the check in various places?

[00:18:01] Speaker 03:
You don't know if it's out of line a little bit?

[00:18:05] Speaker 01:
Those are the simplest, and they get more complicated from there.

[00:18:08] Speaker 01:
But yes, that's right.

[00:18:09] Speaker 01:
And as a result, so.

[00:18:11] Speaker 05:
But it doesn't tell you how to do that automatically.

[00:18:13] Speaker 01:
Well, it tells you to implement these monitoring criteria.

[00:18:17] Speaker 01:
And the reason why the individual monitoring criteria, such as this many lumens of light, is not set out in the claims is because part of this innovation, as with the MRDC patents that we discussed before,

[00:18:31] Speaker 01:
is that the bank sets the criteria.

[00:18:33] Speaker 01:
So in other words, it's not that the inventor is saying that this is the ideal lighting level.

[00:18:40] Speaker 01:
The inventor is saying, this is an invention that can be used by any bank that sets criteria for digital images of checks for deposit.

[00:18:46] Speaker 01:
All of these are geared to accomplishing deposit of the check.

[00:18:50] Speaker 01:
And then when you have an auto-captured image, you reduce the amount of processing that is necessary, because you don't have to check a bad image for errors if you never took the bad image.

[00:19:01] Speaker 01:
So when we were discussing the prior patents, we compared taking a digital image and having the software check it before it is submitted to the bank for deposit.

[00:19:20] Speaker 01:
That avoids the problem of the bank having to deal with a bunch of images taken by an unsophisticated customer.

[00:19:27] Speaker 03:
Why isn't that what 571 is doing?

[00:19:30] Speaker 01:
This is one level beyond that.

[00:19:34] Speaker 01:
Because it's working in real time to ensure that the image is not captured until the conditions are right, it doesn't have to analyze an image file for compliance.

[00:19:44] Speaker 01:
it's analyzing using the camera in real time, it triggers the camera.

[00:19:48] Speaker 01:
And that means you take one picture, and you don't have to do the same amount of checking for errors on that picture.

[00:19:56] Speaker 01:
Whereas, as we've talked about in the context of these other claims, the software checks for errors in the user taken picture because we're using consumer equipment.

[00:20:08] Speaker 01:
It may be prone to errors.

[00:20:09] Speaker 01:
And you want to tell the user that you can't submit this.

[00:20:14] Speaker 01:
It's not compliant.

[00:20:15] Speaker 01:
The auto-capture patents take that to the next level and don't even capture the patent.

[00:20:20] Speaker 01:
And as it says at the end of the passage that I was pointing to, so this is in column four, we're still on page 240 of the appendix.

[00:20:27] Speaker 01:
line 17, by ensuring that the image of the check passes in monitoring criteria during pre-image capture monitoring, the number of non-conforming images of checks is reduced during presentment of the images to a financial institution for processing and clearing.

[00:20:41] Speaker 01:
That literally is what makes it possible to do this at scale, not having to deal with a flood of non-compliant images that you have to send back to the customer and say, we can't deposit this.

[00:20:53] Speaker 01:
The MRDC patents are one way of getting it.

[00:20:56] Speaker 01:
This is a further innovation beyond that, this auto capture invention.

[00:21:02] Speaker 03:
Basically, when you point your camera at the track, if you haven't done it exactly right, if you're doing it in such a way that some of the bank's criteria are not being met, the picture isn't taken.

[00:21:11] Speaker 03:
And instead, instructions come up to tell you how to do it.

[00:21:15] Speaker 03:
So it's similar to, if you go to the theater now, you don't get a program anymore.

[00:21:20] Speaker 03:
You have to go into this, take a picture of the code, of the square code with all the jiggles.

[00:21:25] Speaker 03:
But the problem is that when you get it off wrong, they don't instruct you how to fix it.

[00:21:30] Speaker 03:
So the problem of taking a picture of something that doesn't line up right is known.

[00:21:35] Speaker 01:
So I share the gripe about QR codes.

[00:21:38] Speaker 01:
I'm not sure I share the premise that that's analogous to here.

[00:21:41] Speaker 01:
And of course, let me just.

[00:21:43] Speaker 03:
The only different thing is that when you try to take a picture of the QR code and you didn't get it right, it doesn't work.

[00:21:48] Speaker 03:
Software doesn't come up and tell you how to correct that problem.

[00:21:51] Speaker 01:
That's right.

[00:21:51] Speaker 01:
So this software, not only can it tell you how to correct the problem.

[00:21:55] Speaker 01:
So for example, if the room is too dark and it cannot take the picture, it can tell you that.

[00:21:59] Speaker 01:
But also, suppose that the issue we're dealing with is skew.

[00:22:05] Speaker 01:
You have to get it at the right angle so that the text can be read correctly, and it's not going to be distorted.

[00:22:11] Speaker 01:
So if you're holding a- Let me finish.

[00:22:13] Speaker 01:
Oh, I'm sorry.

[00:22:15] Speaker 03:
How is what you're doing here improving the functionality of the camera?

[00:22:19] Speaker 03:
The camera knows what to do if you get it straightened up correctly.

[00:22:24] Speaker 01:
It's improving the suitability of the camera

[00:22:27] Speaker 01:
bank deposit compliant images and improves the overall usability of the network.

[00:22:33] Speaker 03:
It improves the method of depositing the check.

[00:22:36] Speaker 01:
I wouldn't say that.

[00:22:37] Speaker 01:
Why not?

[00:22:39] Speaker 03:
The check won't be, it's basically, the claim is to verifying the depositability of the check.

[00:22:48] Speaker 01:
Of an image of a check, yeah.

[00:22:50] Speaker 03:
That may seem like a nitpick, but I think it's an important one because what we're talking about... If you say that, if you say all we're trying to do here is we're trying to improve depositability of the check, right?

[00:23:01] Speaker 01:
But again, it's of an image of a check taken with consumer equipment, and I think that's important because we're solving a technical challenge that only arises when you use that consumer equipment.

[00:23:11] Speaker 01:
So this is not a challenge that bank tellers have to deal with.

[00:23:14] Speaker 03:
It arises when you're using the abstract idea.

[00:23:18] Speaker 03:
The problem arises when you're using the abstract idea.

[00:23:21] Speaker 01:
Well, if the abstract idea were check deposit, that would be the case.

[00:23:24] Speaker 01:
But the abstract idea here is not check deposit.

[00:23:27] Speaker 01:
The claimed advance is not directed to check deposit.

[00:23:32] Speaker 01:
The claimed advance is to taking

[00:23:35] Speaker 01:
accurate pictures that pass the technical criteria that only apply to this type of image.

[00:23:42] Speaker 03:
It's an image file and not a two-dimensional scan.

[00:23:49] Speaker 01:
I mean, at a very high level of generality, there's some truth to that.

[00:23:55] Speaker 01:
But not just that it works, but that it works in a way that a bank can implement at scale.

[00:24:01] Speaker 03:
I mean, the consumer agrees with that in the beginning when they sign the contract to use the software.

[00:24:06] Speaker 01:
Indeed.

[00:24:07] Speaker 01:
But the thing I pointed you to in column four makes the scale point.

[00:24:13] Speaker 01:
And I think that that's true of each of these inventions, but particularly with the auto-capture point,

[00:24:18] Speaker 01:
It's not just that you can do more deposits.

[00:24:24] Speaker 01:
It takes less processing power to evaluate the images for suitability on the criteria that are set by the banks.

[00:24:37] Speaker 02:
That sounds an awful lot like a lot of cases we've projected where we've said

[00:24:43] Speaker 02:
using computers for what they are designed for, which is to make things faster, efficient, more accurate in ways that humans can't do, then they're still ineligible.

[00:24:53] Speaker 01:
No, I don't think so.

[00:24:53] Speaker 01:
I think this is the distinction that the court drew in Salyutran.

[00:24:56] Speaker 01:
In Salyutran, obviously, the court found the claims they are ineligible, but what the contrast it drew is improving the technical capture of information.

[00:25:04] Speaker 01:
This is improving the technical capture of information.

[00:25:06] Speaker 01:
The capture is not being done in this way.

[00:25:09] Speaker 01:
So the advance is allowing the use of a consumer device to be used to capture these types of images, a different kind of image than a scanner would generate, and to have it be used at scale in a bank deposit system.

[00:25:25] Speaker 01:
We're not just talking about taking a picture more rapidly.

[00:25:28] Speaker 01:
We're talking about the characteristics that the picture must have in order to resolve a technical challenge

[00:25:33] Speaker 01:
that is unique to the use of this technology.

[00:25:38] Speaker 01:
Scanners don't pose this technology.

[00:25:39] Speaker 01:
Scanners take a two-dimensional image up front, and they don't have to worry about ambient lighting or skew.

[00:25:45] Speaker 01:
So that, I think, is what these are solving for.

[00:25:52] Speaker 01:
Unless the court has any other questions about any of the other issues, I know Mr. Fleming's argument was devoted to 101, and it's always mine.

[00:26:01] Speaker 04:
Thank you.

[00:26:02] Speaker 04:
Thank you, Your Honor.

[00:26:08] Speaker 00:
Three points, if I may.

[00:26:09] Speaker 00:
And I thank the Court for its attention today.

[00:26:11] Speaker 00:
I know there's a lot here.

[00:26:13] Speaker 00:
And of course, if you reverse on 101 in both of these cases, you don't need to address anything else.

[00:26:18] Speaker 00:
The disclosure in the 571 about auto capture is found at column four, which is on page 240.

[00:26:24] Speaker 00:
And beginning at line 27, it says, in an implementation

[00:26:29] Speaker 00:
The image capture may be performed automatically by the camera, the mobile device, and or the financial institution as soon as the image of the check is determined to pass the monitoring criteria.

[00:26:40] Speaker 00:
Alternatively, the user may manually instruct the camera to perform the image capture.

[00:26:44] Speaker 00:
That's it.

[00:26:44] Speaker 00:
There's something again a little further on in column 10, which just says column 10, line 27.

[00:26:50] Speaker 00:
the image may be captured either automatically or manually.

[00:26:53] Speaker 00:
There's nothing in there about how to do it.

[00:26:55] Speaker 02:
How do you address his point that the whole point of this is that, you know, they don't have to claim the specific criteria because they want to, they're claiming the idea of using criterion which are, and they,

[00:27:07] Speaker 02:
There's some specificity on the different types of criterion.

[00:27:11] Speaker 02:
They just don't set the actual parameters.

[00:27:13] Speaker 02:
And the reason is that they want the banks to have the flexibility to determine that criterion themselves.

[00:27:20] Speaker 02:
Some banks may need more detail.

[00:27:22] Speaker 02:
Some banks may need less.

[00:27:24] Speaker 02:
Why is it the fact that they don't specifically claim only one set of criterion detrimental to it being eligible?

[00:27:32] Speaker 00:
That doesn't exhaust our argument.

[00:27:33] Speaker 00:
That's one part of it.

[00:27:34] Speaker 00:
But even taking that, the claims do not say how to program the device to say that the image meets the criteria.

[00:27:44] Speaker 00:
The reason they don't say it, and the reason the specification doesn't disclose anything about it, is because a skilled artist knew that these devices were doing it already.

[00:27:51] Speaker 00:
The mobile devices knew how to monitor lighting.

[00:27:54] Speaker 00:
They didn't create monitoring lighting of a picture.

[00:27:57] Speaker 00:
They didn't create monitoring of skew by a mobile device.

[00:28:00] Speaker 00:
It was already out there.

[00:28:01] Speaker 00:
All they're doing is using these existing capabilities

[00:28:04] Speaker 00:
to do something in the narrow specific area of check deposit.

[00:28:08] Speaker 00:
And even if you think it was innovative, even if you think it was brilliant, that might get them a business award.

[00:28:13] Speaker 00:
It might get them an advantage in the market or the Nobel Prize.

[00:28:15] Speaker 00:
It doesn't get them a patent.

[00:28:17] Speaker 00:
We would respectfully submit in both of these cases that the judgment should be reversed and all claims held patent ineligible.

[00:28:23] Speaker 05:
OK.

[00:28:23] Speaker 05:
Thank you.

[00:28:23] Speaker 05:
Thank both counsel.

[00:28:24] Speaker 05:
The case is submitted.