[00:00:00] Speaker 01:
The last argument for today is docker number 23-1583, wireless discovery versus coffee meets bagel.

[00:00:09] Speaker 00:
Mr. Settig.

[00:00:11] Speaker 00:
Your Honor, I've never argued what is essentially the same appeal twice in a row.

[00:00:17] Speaker 01:
Might as well start with representative claims, because we're dealing with a different representative claim here.

[00:00:23] Speaker 00:
Well, Your Honor, the so-called representative claim in this one is the 267 Claim 10, and it lacks the elements that are present in the 352 and 397 patent claims that are issued.

[00:00:40] Speaker 00:
How so?

[00:00:41] Speaker 00:
Specifically, the 352

[00:00:43] Speaker 00:
Claim 16 combines what's in Claim 1, that's the unique hardware identifier that is tracked in a profile in the database in the computing device that yields the positive result for Sally in the hypothetical I used a moment for.

[00:01:01] Speaker 00:
Whereas traditionally, without the invention, without the technology at issue, we produce a negative result for Sally.

[00:01:09] Speaker 00:
Those elements specifically recite that the device can be on or off.

[00:01:15] Speaker 00:
And the harder case is, of course, when the device is off.

[00:01:19] Speaker 01:
I guess the question is, under our case law, for example, Berkheimer, if the

[00:01:27] Speaker 01:
plaintiff, the patent owner, doesn't really make any meaningful argument as to why other claims beyond the representative claim have something additional that's worthy of consideration under Section 101.

[00:01:43] Speaker 01:
then it's OK for the district court to just focus on one representative claim chosen by the defendants.

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And I think we've also said the mere identification of claim limitations and other claims

[00:01:59] Speaker 01:
that don't exist in representative claim by itself is not really enough of a meaningful argument.

[00:02:06] Speaker 01:
So where in the briefing below was there something that we can look at that we can feel confident was enough of a meaningful argument that justifies going beyond this one representative claim.

[00:02:19] Speaker 00:
Your Honor, if you look at the appendix pages roughly 194 to 197, there are objections made to the use of the representative claims.

[00:02:31] Speaker 00:
And there's a specific recitation in that briefing about this offline feature, meaning that the claims of the other patents

[00:02:50] Speaker 00:
include the ability to track and trace products that are the second device that is off.

[00:03:01] Speaker 04:
I don't see that on page 8194.

[00:03:04] Speaker 00:
Your Honor, I'm reading from it.

[00:03:06] Speaker 00:
It says that claim one of the 267 patent requires... Where are you?

[00:03:11] Speaker 00:
Appendix page 194.

[00:03:12] Speaker 01:
Yes, where on that page?

[00:03:14] Speaker 00:
The paragraph that starts with while the claim sets

[00:03:18] Speaker 01:
Okay.

[00:03:19] Speaker 00:
And then you'll see that there's discovery of devices that are off.

[00:03:25] Speaker 00:
Then if you go to the page under 397 patent, you'll see that there is... I'm sorry, where?

[00:03:33] Speaker 00:
I'm sorry, I'm moving too quickly.

[00:03:35] Speaker 00:
If you move to page 197, when the brief below moves from the general complaint about representative claims to go to each of the claims themselves,

[00:03:46] Speaker 00:
It says specifically, for example, the inventive concept that allows for members to have their respective devices turned on or off while a search is conducted by a first user and still be discoverable.

[00:04:12] Speaker 00:
That is the scenario that is addressed in the 352 claims that I referenced.

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That's claims 16 and 32.

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It is the scenario that's described in all of the 397 claims, starting with claim one.

[00:04:28] Speaker 00:
And you can see that it's couched under each of those patterns.

[00:04:32] Speaker 04:
So in other words, when discussing the 397 below, I was very confused.

[00:04:37] Speaker 04:
Is claim 10 of the 267, you're saying it's not representative.

[00:04:41] Speaker 04:
But I thought it actually had that limitation in it.

[00:04:44] Speaker 00:
It does not, Your Honor.

[00:04:45] Speaker 00:
It does not.

[00:04:46] Speaker 00:
The 267 includes the use of a unique hardware identifier that doesn't put it in a context in which we are reporting positive results.

[00:04:59] Speaker 00:
What about the final limitation?

[00:05:00] Speaker 04:
Page 883.

[00:05:02] Speaker 04:
Yeah, page 883.

[00:05:05] Speaker 04:
Liz, claim 10 of the 267 patent.

[00:05:08] Speaker 00:
I'm sorry, Your Honor.

[00:05:09] Speaker 00:
Which page?

[00:05:10] Speaker 04:
Page 883.

[00:05:11] Speaker 00:
Page 883?

[00:05:12] Speaker 00:
83, 84.

[00:05:13] Speaker 04:
Page 83, please.

[00:05:25] Speaker 04:
This is the district court's opinion, listing page claim 10 of the 267 patent.

[00:05:32] Speaker 04:
And at the bottom, the last two limitations talks about turning on and off and using the computing device.

[00:05:41] Speaker 04:
I don't understand.

[00:05:42] Speaker 00:
I'm sorry, Your Honor.

[00:05:43] Speaker 00:
What I was attempting to do with the 352 and the 397 claims is give the most robust combination of elements like one would do under BASCOM, which includes the unique hardware identifier, login credentials, and the ability to report positive results for offline devices.

[00:06:01] Speaker 00:
Claim 10 of the 267 patent

[00:06:06] Speaker 00:
does not explicitly reference the hardware identifiers.

[00:06:09] Speaker 00:
So we felt that the best combination was one that leveraged those hardware addresses specifically in the claim and not just in the patent specification.

[00:06:21] Speaker 00:
When that feature was called out in the context of the 267, the appellee said that that was a reference to the specification rather than the claims.

[00:06:32] Speaker 00:
because that hardware identifier element doesn't appear in the slides.

[00:06:35] Speaker 01:
Can I follow up on George Stoll's question?

[00:06:37] Speaker 01:
The quote starting with, for example, the A197, I mean, that alleged inventive concept about being able to discover devices that happen to be turned off, I mean, that's, as I understand it, the last limitation of this representative claim 10 of the 267.

[00:06:58] Speaker 00:
but not leveraging the hardware address specifically, Your Honor.

[00:07:02] Speaker 04:
Do you want to talk about why that's inventive?

[00:07:05] Speaker 04:
I mean, why don't you talk about that?

[00:07:07] Speaker 04:
Why do you think this aspect of this claim, claim 10 of the 267, let's just focus on that first.

[00:07:14] Speaker 04:
Why is that an inventive concept?

[00:07:16] Speaker 00:
Your Honor, I've already, I think, pivoted in the court's language to the claims that combine the hardware identifier, the login credentials, and the ability to report positive results for offline devices.

[00:07:29] Speaker 03:
So on appeal now, are you not trying to save either the 875 patent or the 267 patent?

[00:07:35] Speaker 03:
Is that what you're saying?

[00:07:36] Speaker 03:
Because that's what I'm hearing.

[00:07:38] Speaker 00:
Your Honor, to be direct.

[00:07:41] Speaker 00:
There are other errors that justify this court reversing even as to the 267 and the 875, namely the failure to consider a combination of elements.

[00:07:53] Speaker 00:
There is no discussion.

[00:07:54] Speaker 00:
Alice emphasizes that the step one analysis should focus on a combination of elements if that's what's presented.

[00:08:03] Speaker 00:
The district court doesn't do that at all.

[00:08:06] Speaker 00:
So that kind of error covers.

[00:08:07] Speaker 03:
I'm going to be honest with you.

[00:08:08] Speaker 03:
I don't feel like I got a direct answer whatsoever to the question I posed.

[00:08:11] Speaker 00:
So where I was going, Your Honor, is so there are other errors with respect to all four patents.

[00:08:16] Speaker 00:
But if we are pressed today, we are strongest on the 352 and the 397, because that's where the best combination of elements exists.

[00:08:24] Speaker 00:
So you asked me if we're attempting to save the 875 and the 267.

[00:08:29] Speaker 00:
The answer to that is yes, but for the general reasons I've described.

[00:08:34] Speaker 00:
I just think we're strongest on the 352 and the 397.

[00:08:36] Speaker 01:
It seems like your triple threat combination of identifier, authentication, and location data.

[00:08:45] Speaker 00:
It's not just location data.

[00:08:46] Speaker 01:
Well, I get it.

[00:08:47] Speaker 01:
I'm using shorthand.

[00:08:48] Speaker 01:
Okay, but shorthand analysis is also good.

[00:08:50] Speaker 01:
Let me keep going if you don't mind.

[00:08:53] Speaker 01:
is that you think they're somehow all integrated to each other.

[00:08:56] Speaker 01:
There's some kind of interrelationship between the three that creates an inventive concept.

[00:09:03] Speaker 01:
Is that right?

[00:09:03] Speaker 00:
It is, Your Honor.

[00:09:04] Speaker 01:
Now where in the claim, any claim, does it talk about this is how we're going to use the hardware identifier in the context of doing your location data limitation?

[00:09:17] Speaker 00:
if you look at claim one of the 397 patent, Your Honor, in the first element, we're talking about the creation of an association between an individual hardware device and a hardware identifier.

[00:09:30] Speaker 04:
How about if we look at that claim together?

[00:09:32] Speaker 00:
OK.

[00:09:33] Speaker 04:
And then you can answer that question.

[00:09:35] Speaker 04:
Because I have the same concern.

[00:09:38] Speaker 04:
I'm having a hard time seeing how the claim actually emphasizes.

[00:09:45] Speaker 00:
I meant appendix page 187, Your Honor.

[00:09:46] Speaker 00:
So we're talking about a server.

[00:09:50] Speaker 04:
So it's claim one of the 397-pound.

[00:09:53] Speaker 04:
That's what you want to talk about.

[00:09:54] Speaker 00:
Sure, Your Honor.

[00:09:56] Speaker 00:
I think you've already heard me on the other ones that are analogous, but let's just focus on this claim.

[00:10:01] Speaker 04:
They're not analogous.

[00:10:02] Speaker 04:
And you want to know why?

[00:10:02] Speaker 04:
Because you don't want to talk about them, and you want to talk about this one, because you think it's your best one.

[00:10:08] Speaker 04:
Because those other ones lack some of these claim limitations.

[00:10:10] Speaker 04:
But let's just focus on the merits.

[00:10:12] Speaker 04:
I think you've got five minutes left.

[00:10:14] Speaker 04:
Let's make sure you focus on the merits.

[00:10:16] Speaker 04:
Where is there an inventive concept in claim one of the 397 patent?

[00:10:21] Speaker 00:
Your honor, if you go to the element that starts with associate, it says associate each member profile with the unique hardware identifier or identification associated with the member device.

[00:10:34] Speaker 04:
Okay.

[00:10:35] Speaker 00:
Identify a unique idea of a second member

[00:10:39] Speaker 00:
So that leverages the hardware addresses that we're talking about.

[00:10:44] Speaker 00:
And if you look at the last element, it says wherein the server permits discoverable members to have their respective devices turned on or off at a time of a search being conducted by the first user.

[00:10:56] Speaker 00:
Wherein the server permits the discoverable members to have their respective devices unconnected to an internet connection at the time of the search.

[00:11:06] Speaker 00:
and it's discovered based, I'm sorry, if you skim to the bottom of that element, and it is discoverable based on the latest static and dynamic location in proximity to the first user.

[00:11:17] Speaker 00:
So that integrates the hardware address, the profile that are laid out in the earlier elements, and then it puts them essentially in action in the final app.

[00:11:28] Speaker 01:
How do you know that?

[00:11:30] Speaker 01:
I mean, I understand you're saying that.

[00:11:32] Speaker 00:
Well, the elements that I'm describing are all in the claims.

[00:11:35] Speaker 00:
The specification describes that process and it goes through the process of creating database records for each of the individual users, including specific hardware addresses.

[00:11:46] Speaker 00:
The figures highlight that kind of robust database record.

[00:11:50] Speaker 00:
and leverages that.

[00:11:52] Speaker 04:
Does the claim itself tell how the server permits describable members to have their devices turned on or off using the hardware ID?

[00:12:02] Speaker 00:
It says that they're configurable to report the static and dynamic locations.

[00:12:09] Speaker 00:
The only way that happens is the stepwise integration, to use the court's word that I described earlier.

[00:12:17] Speaker 00:
It takes each profile

[00:12:19] Speaker 00:
puts a hardware address in the profile, tracks that.

[00:12:24] Speaker 00:
If the device is off, it'll report back based on the static address.

[00:12:31] Speaker 00:
If the device has been updated as to location, it'll report a positive for Sally.

[00:12:36] Speaker 00:
with respect to the dynamic addresses.

[00:12:39] Speaker 04:
Is it your contention that you are the first to have used this technology?

[00:12:46] Speaker 00:
Your Honor, that's really more of a novelty or obviousness question.

[00:12:49] Speaker 04:
I know, but it goes to step two, because step two says that your inventive concept can't be conventional.

[00:12:54] Speaker 00:
Yeah, we are unaware.

[00:12:56] Speaker 00:
Again, we're at the 12b6 stage, the pleading stage, without any discovery having been conducted.

[00:13:03] Speaker 00:
And in that context, all presumptions as to the novelty, utility, non-obviousness would have to be in favor of the non-moving.

[00:13:14] Speaker 00:
Right.

[00:13:14] Speaker 01:
The question is, is this patent owner, this inventor, the first one,

[00:13:21] Speaker 01:
to decide to report out last known location of a phone before the phone was turned off.

[00:13:32] Speaker 00:
Your Honor, we have those.

[00:13:34] Speaker 00:
Yes, Your Honor.

[00:13:35] Speaker 00:
That is the way the Patent Office looked at it, and it's the way we look at it.

[00:13:38] Speaker 01:
Well, you can't point me to anything that the Patent Office said.

[00:13:42] Speaker 00:
No, but Your Honor, it was argued.

[00:13:44] Speaker 01:
I'm asking you, is your inventor the first one that ever

[00:13:53] Speaker 01:
used the last known location of a phone?

[00:13:58] Speaker 00:
I don't know the answer to that, Your Honor.

[00:14:00] Speaker 00:
I do think that that's a prior art question.

[00:14:02] Speaker 00:
We're in your rebuttal.

[00:14:04] Speaker 00:
Very deep.

[00:14:04] Speaker 00:
Let's hear from the other side.

[00:14:20] Speaker 04:
Council, could you start by answering that question, if you know anything about it, about whether this idea of reporting the last known address of the mobile phone before it's turned off, whether the patent itself, any of the specifications, say anything about whether that's conventional technology or not?

[00:14:41] Speaker 02:
Yes, Your Honor.

[00:14:42] Speaker 02:
Lance Wyatt on behalf of Appellees.

[00:14:45] Speaker 02:
Looking at the 875 specification, specifically A118, column 13, location data and... Can you give us a second there?

[00:14:55] Speaker 02:
Yes, sorry.

[00:14:56] Speaker 02:
Okay.

[00:14:57] Speaker 01:
Column 13, what line?

[00:14:58] Speaker 02:
Line 60 to 61.

[00:15:02] Speaker 02:
Location tracking can be based on GPS and or Wi-Fi or other known protocols.

[00:15:10] Speaker 02:
Tracking location, I mean the specification concedes

[00:15:14] Speaker 02:
it can be any known protocol.

[00:15:16] Speaker 02:
I mean, this was conventional.

[00:15:18] Speaker 02:
And the court, to go to the representative claim discussion that we've had today, the court found in this case, separate from the prior appeal, the court found one claim representative.

[00:15:30] Speaker 02:
That was claim 10 of the 267 patent.

[00:15:33] Speaker 02:
And the reason that the court found that it was representative is that there was no distinctive significance across all of the other claims.

[00:15:44] Speaker 02:
plaintiff down below pointed to the on-off functionality in other claims and the court simply said

[00:15:52] Speaker 02:
That is conventional functionality practiced by generic technology.

[00:15:57] Speaker 04:
Do you want to give a tell us where that is in the court's opinion?

[00:16:00] Speaker 04:
And also, do you agree, though, that claim 10 of the 267 patent does talk about turning on and off, right?

[00:16:07] Speaker 02:
It does talk about that.

[00:16:08] Speaker 02:
It does not have language citing the unique hardware identifier.

[00:16:14] Speaker 02:
That was also mentioned by my colleague.

[00:16:17] Speaker 02:
But it does have the on-off functionality.

[00:16:20] Speaker 02:
Let me just fill in the moment here.

[00:16:23] Speaker 02:
All right, A86, last paragraph.

[00:16:42] Speaker 02:
The court is not convinced by wireless discovery's arguments that the other claims of the assertive patents have different concrete and technical elements and steps requiring separate patentability analysis.

[00:16:54] Speaker 02:
The unique hardware identifier and turning on and off functionality are just generic components used for their conventional purpose.

[00:17:05] Speaker 01:
Do we have a transcript of the oral argument in the JA?

[00:17:10] Speaker 02:
Yes, Your Honor.

[00:17:14] Speaker 02:
A 219 through 232.

[00:17:16] Speaker 02:
Okay.

[00:17:20] Speaker 01:
Do we have something here that discusses this particular element?

[00:17:32] Speaker 02:
Your Honor, I don't recall that being the focus of the hearing below.

[00:17:41] Speaker 01:
Okay.

[00:17:43] Speaker 02:
I think really the emphasis on this unique hardware identifier to authenticate and the on-off functionality was really expounded upon on appeal.

[00:17:57] Speaker 03:
When we're writing an opinion, assuming we write an opinion here, what would you contend would be the claims we need to make sure to address in that opinion?

[00:18:08] Speaker 02:
Your Honor, I think claim 10 of the 267 patent with the district court below found representative.

[00:18:14] Speaker 02:
I think that's the analysis that this court often takes on is when a claim is representative, the court looks to whether there are any distinctive significance found in the other claims.

[00:18:28] Speaker 02:
And that's exactly what the court below did here.

[00:18:30] Speaker 02:
And I think the court can also do so here with this.

[00:18:32] Speaker 04:
In other words, the court looks at claim 10 of the 267, says, OK, that's eligible or ineligible, and then determines whether there's something about those other claims that might make the outcome different?

[00:18:44] Speaker 02:
Yes, Your Honor.

[00:18:45] Speaker ?:
OK.

[00:18:51] Speaker 02:
So I think in summary, I think this port need look no further than the Netsock.

[00:18:56] Speaker 04:
Can I ask you another question?

[00:18:57] Speaker 04:
Sure.

[00:18:58] Speaker 04:
What do you think is a mobile communication device?

[00:19:00] Speaker 04:
I was trying to figure out what this is.

[00:19:02] Speaker 04:
When I looked at the specification, it's a little circular.

[00:19:05] Speaker 04:
It says, for example, a cell phone.

[00:19:08] Speaker 04:
But could it be a laptop?

[00:19:10] Speaker 04:
Could it be any sort of device?

[00:19:13] Speaker 04:
Maybe you know the definition of the specifications that I missed.

[00:19:17] Speaker 04:
But is it limited to a cell phone?

[00:19:20] Speaker 04:
Could it be anything that's mobile and communicates?

[00:19:24] Speaker 02:
Your Honor, that's a claim construction issue that didn't come up below.

[00:19:28] Speaker 02:
I think you are right that the specification isn't very clear on what could encompass a mobile device.

[00:19:35] Speaker 02:
And I think certainly there's an argument that a laptop, especially given laptops back in 2007, having mobile functionality could fall within the scope of the claim.

[00:19:49] Speaker 04:
You make a good point that it wasn't argued below or it wasn't interpreted below too.

[00:19:57] Speaker 01:
So the other side seems to be making an argument of leveraging the unique hardware identifier along with

[00:20:11] Speaker 01:
using this location data that exists right before a phone gets turned off to be able to identify for an interested user where another mobile device is located, thanks to the identifier and the last known location data before the phone gets turned off.

[00:20:40] Speaker 01:
Why would you say that's not something that would be regarded as a tech-based inventive concept?

[00:20:50] Speaker 02:
So I think where the issue lies there and where a lot of these 101 cases tend to fall on one side or the other is specificity in the claims.

[00:21:00] Speaker 02:
And here, there really is no specificity as to how the on-off functionality works.

[00:21:08] Speaker 02:
It merely states the idea that a user can still be connected with another user, even if that second user's phone is on or off.

[00:21:19] Speaker 01:
Are they actually connected, or is it more that

[00:21:22] Speaker 01:
you could discover the general location of an unconnected phone based on the last known location of that now disconnected phone.

[00:21:36] Speaker 02:
I apologize, Your Honor.

[00:21:37] Speaker 02:
I think I might have gotten a little bit ahead of myself in the process of the claims of how users are introduced to one another.

[00:21:44] Speaker 02:
I think the discovery

[00:21:46] Speaker 02:
process would be the first process in that step of connecting people together.

[00:21:51] Speaker 01:
Right, but as I understand the claim, that's what the claim is simply calling for.

[00:21:56] Speaker 01:
Where might other phones exist in the immediate location and

[00:22:04] Speaker 01:
certainly will be able to get a hold of the location of phones that are on.

[00:22:09] Speaker 01:
And as for phones that are off, that were turned off in the immediate location, that will also be reported out, right?

[00:22:18] Speaker 01:
That's what the claim is calling for?

[00:22:20] Speaker 02:
Right.

[00:22:20] Speaker 02:
And I think there are some additional steps in some of the other claims where a user can

[00:22:26] Speaker 02:
send an invitation to another user where they can then be connected to communicate through other means.

[00:22:31] Speaker 02:
But I think certainly the discovery step is the primary step in eventually connecting users.

[00:22:40] Speaker 02:
But I think the problem

[00:22:42] Speaker 02:
with these claims is that there is no specificity as to how any of this is done.

[00:22:49] Speaker 02:
Even if on-off functionality was purportedly solving a technological problem, there's no specificity in the claims to show how technology is being improved here.

[00:23:03] Speaker 02:
They're merely stating the idea that, oh, a user can still be discovered even if their phone is off.

[00:23:10] Speaker 02:
How?

[00:23:11] Speaker 02:
Claims don't tell us.

[00:23:12] Speaker 04:
Does the specification say how, other than it saying that it's using conventional location technology?

[00:23:19] Speaker 02:
I think that that's really all it says, is that it is the conventional location technology that's stored in the database.

[00:23:27] Speaker 02:
So when a user is looking who is discoverable, it can pull that information from a database, which is, I would say, conventional functionality.

[00:23:37] Speaker 04:
And the server.

[00:23:41] Speaker 04:
What about the server tracking the cell phones or mobile communication devices by a hardware identifier, which I think the spec says that's a Bluetooth.

[00:23:54] Speaker 04:
At least in some embodiments, maybe a Bluetooth number or something.

[00:24:00] Speaker 04:
Is there anything that talks about that being conventional?

[00:24:04] Speaker 02:
Yes, Your Honor.

[00:24:05] Speaker 02:
So A117, column 12.

[00:24:16] Speaker 02:
Line 7 through 17 says here the requesting user's resident CSA upon receiving the three respective Bluetooth device ID addresses, IE address for device 1, 2, and 3.

[00:24:30] Speaker 02:
The address may be broadly construed to include any unique identifier such as Bluetooth device address or unique identifier selected from a Wi-Fi address or main component address or an IMEI.

[00:24:45] Speaker 02:
So I think the unique hardware identifier is conventional.

[00:24:50] Speaker 02:
And I think the specification is clear on that.

[00:24:55] Speaker 03:
So opposing counsel was making a number of arguments today, which I have described as a pivot a little bit, with respect to, I'm going to say, the 397 and the 352 patents.

[00:25:08] Speaker 03:
Do you have any other arguments you want to make focused on those particular patents?

[00:25:14] Speaker 02:
Nothing related specifically to those other two patents I think you know the limitations that were called out in those patents were discussed in the blue brief not necessarily mentioning

[00:25:28] Speaker 02:
than 397 or 352 by name.

[00:25:31] Speaker 02:
But I think it was this kind of combination argument of the unique device identifier with the on-off functionality.

[00:25:40] Speaker 02:
And I think the reason my colleague pointed to a claim in one of those patents is because it has both of those limitations, whereas the 267 only has the on-off functionality.

[00:25:51] Speaker 02:
doesn't have the unique device identifier.

[00:25:53] Speaker 02:
But again, I think the district court correctly found claim 10 of the 267 representative despite those additional limitations in those other Chibatins.

[00:26:06] Speaker 01:
What do we review that for?

[00:26:07] Speaker 01:
De novo or abusive discretion?

[00:26:11] Speaker 01:
I believe the 101 here is a de novo review.

[00:26:14] Speaker 01:
Representative claim selection.

[00:26:19] Speaker 02:
I think that would also be a de novo review.

[00:26:28] Speaker 01:
If there are no further questions, Mr. Wyatt, thank you.

[00:26:30] Speaker 01:
Thank you.

[00:26:30] Speaker 00:
I'll be brief, Your Honors.

[00:26:39] Speaker 00:
The district court erred when it found that the use of the unique hardware identifiers and the ability to report positive results for offline devices or generic components being used for their conventional purpose.

[00:26:52] Speaker 00:
The conventional purpose of turning a device on or off is to power it on or off.

[00:26:57] Speaker 00:
The conventional reason for using a hardware identifier is to allow that device to communicate over the network.

[00:27:05] Speaker 00:
Both of those things are being used in atypical ways here.

[00:27:09] Speaker 04:
What is the evidence of that?

[00:27:13] Speaker 04:
I mean, I feel like what you're saying here is attorney argument more than anything else.

[00:27:22] Speaker 04:
So do you have any place in the patent itself you want to emphasize?

[00:27:26] Speaker 00:
That it talks about identifying devices that are off?

[00:27:30] Speaker 04:
Well, like the unique hardware identifier is not used in this way.

[00:27:34] Speaker 04:
It's not used to locate, for example, the cell phone to see whether it's on or off or find its last location.

[00:27:44] Speaker 00:
You know, Your Honor, the description in the patents is the fact that there is a unique hardware identifier that is then stored in a database record, which is then used.

[00:27:54] Speaker 01:
Well, let me try again.

[00:27:56] Speaker 01:
Where in this map does it describe what you're relying on as like a eureka moment?

[00:28:14] Speaker 01:
Something that gives me a sense of, wow, we're using this ID to associate with a user profile.

[00:28:24] Speaker 01:
That's an interesting twist.

[00:28:28] Speaker 01:
And same thing with picking up the last known location data that is being reported out by a GPS.

[00:28:38] Speaker 00:
The use of static and dynamic location data, Your Honor?

[00:28:42] Speaker 00:
That is being discussed in the 397, the user profile discussion in column 18.

[00:28:50] Speaker 01:
OK, could you give us the page number?

[00:28:52] Speaker 00:
Appendix 184.

[00:28:54] Speaker 01:
184, column what?

[00:28:59] Speaker 00:
184, column 18, starting at roughly line 7.

[00:29:08] Speaker 00:
starts with the proposition that a user profile is stored and updated.

[00:29:12] Speaker 00:
The detection and notification module may continuously monitor the locations of the devices, and that's certainly doing the monitoring piece.

[00:30:51] Speaker 00:
In the 352 patent, Your Honor, at column 16, which is appendix page 140, there is a discussion of the embodiment where the unique hardware identifier is being combined with the notion of static and dynamic locations starting at roughly line 42.

[00:31:14] Speaker 00:
What column?

[00:31:16] Speaker 00:
16.

[00:31:38] Speaker 01:
okay i think we have your argument thank you very much