[00:00:00] Speaker 02:
Okay, the next case for argument is Duncan number 23-1582, wireless discovery versus meat food.

[00:00:10] Speaker 00:
Okay, Mr. Setti, please begin.

[00:00:12] Speaker 00:
Good morning, Your Honors.

[00:00:14] Speaker 00:
Nick Setti from Setti Chachkas, appearing on behalf of plaintiff, appellant, wireless discovery.

[00:00:21] Speaker 00:
Your Honors, in deciding that the 75 pending claims across four patents in this case were all unpatentable as a matter of law at the pleading stage without the benefit of any discovery, the district court ignored the technical problems that these patents address and the specific technical improvements and solutions that they provide and claim.

[00:00:49] Speaker 00:
In so doing, the court ignored

[00:00:51] Speaker 00:
teachings in cases like DDR, BASCOM, TechSec, which require a different type of analysis.

[00:01:00] Speaker 00:
To reach the district court's result, it focused and perhaps even fixated on the notion that there was a single abstract idea, that of social networking or automating social networking, and did not focus at all on the technology that was, the technological problems being addressed.

[00:01:22] Speaker 00:
And specifically, if one looks at the claims that are asserted in the 352 and 397... What would you characterize as the technical problem being addressed?

[00:01:31] Speaker 00:
Your Honor, if you look at the claims that are asserted in the 352 and the 397 patents specifically, the technical problem is one in which if a device is off or offline and one does a query.

[00:01:48] Speaker 00:
Let me just see if I can paint the picture.

[00:01:50] Speaker 00:
Device number one is mine.

[00:01:52] Speaker 00:
I do a search for people that are in that area and in a normal traditional context without the inventions here,

[00:02:01] Speaker 00:
If Sally's device, let's just call it, is off, it would report a negative, meaning it would not report that that device was present.

[00:02:10] Speaker 00:
In contrast, with the claim technology in the 352 and 397 patents, device number one does a search.

[00:02:19] Speaker 00:
there's a computing device or server that sits in the middle.

[00:02:24] Speaker 00:
That server has registered device number one.

[00:02:26] Speaker 00:
It's created a profile for user number one.

[00:02:29] Speaker 00:
It's registered a unique hardware identifier for device number one.

[00:02:34] Speaker 00:
It does the same thing iteratively for all other devices, for Sally's device number two and for the thousands of other devices that are out there.

[00:02:43] Speaker 00:
So when one does a search, and let's say I'm in lower Manhattan, Sally's device is off.

[00:02:48] Speaker 00:
The traditional problem is that we would report a negative.

[00:02:52] Speaker 00:
With the technology that's claimed in the 352 and 397 patents, the device even went off, still reports a positive.

[00:03:00] Speaker 00:
And that's because the profile and the database record that's evidenced in, like, Figure 2 of these patents, it will track a specific hardware address for that device.

[00:03:11] Speaker 00:
It will track the static location information for that device, meaning wherever Sally lives.

[00:03:17] Speaker 00:
It will track the dynamic location data for that device if it's been updated and available.

[00:03:24] Speaker 00:
So that means we have a technological problem which is

[00:03:27] Speaker 00:
essentially not being able to report or track offline devices.

[00:03:33] Speaker 00:
And we have a technological solution that's specific to the claims of the 352 and the 392.

[00:03:43] Speaker 04:
location of the mobile device that's off by looking at the person's home address or where they last had their device on?

[00:03:52] Speaker 00:
That's correct, Your Honor.

[00:03:53] Speaker 00:
The terminology in the claims is static or dynamic location data that's available for device number two.

[00:04:01] Speaker 04:
Now, the district court applied the 875... It's odd that this first appeal focused more on claim 10 of the 875 patent.

[00:04:09] Speaker 04:
Am I incorrect in thinking that?

[00:04:13] Speaker 00:
I'm sorry, Your Honor, I didn't hear you.

[00:04:14] Speaker 04:
I thought that this first appeal, your brief in this first appeal, focused predominantly on claim 10 of the 875 patent.

[00:04:23] Speaker 04:
I understand there's other claims at issue, but are you going to talk about that aspect as well?

[00:04:30] Speaker 00:
Your Honor, I think that if you look at the different errors that the district court committed

[00:04:35] Speaker 00:
It did not consider the claim elements in combination, as is required under BASCOM and DDR.

[00:04:42] Speaker 00:
It did not consider that.

[00:04:45] Speaker 04:
But I don't think you've answered my question.

[00:04:48] Speaker 04:
My question is, when I look at your blueprints,

[00:04:51] Speaker 04:
And I see what you've identified as a representative claim on the first page.

[00:04:56] Speaker 04:
You've got claim 10 of the 875 patent.

[00:04:59] Speaker 04:
And I'm simply asking whether you're going to present an argument on that claim as well.

[00:05:03] Speaker 00:
Your Honor, that's the claim that the district court chose as representative.

[00:05:06] Speaker 04:
And you chose, because you've got it here in your brief.

[00:05:09] Speaker 04:
And you also have made arguments about it in your brief.

[00:05:13] Speaker 00:
Am I wrong?

[00:05:14] Speaker 00:
Yes, Your Honor.

[00:05:14] Speaker 00:
You're not incorrect that we defended the 875, the 267, the 352, and the 397.

[00:05:23] Speaker 04:
So you gave me your answer on your technological improvement with respect to the other claims, but what's your answer on the technological improvement with respect to claim 10 of the 875?

[00:05:33] Speaker 04:
Are you going to argue that today?

[00:05:35] Speaker 00:
Your Honor, I think that we're strongest on the claims of the 352 and the 397.

[00:05:40] Speaker 00:
And the reason is when we think of the combination of elements that does provide a concrete technological improvement.

[00:05:49] Speaker 02:
So where in your blue brief do you talk about these other two patents and the claims of these other two patents?

[00:05:58] Speaker 00:
Your Honor, there is discussion in the briefs about those claims.

[00:06:02] Speaker 00:
Right.

[00:06:03] Speaker 00:
I'm looking right now.

[00:06:09] Speaker 00:
In all truth, Your Honor, the initial brief was directed towards the errors that the district court committed with respect to the 875 not being representative of the other claims.

[00:06:20] Speaker 04:
So you're just saying, you argue in this brief that 875, claim 10, should not have been treated as representative, but you don't discuss the other claims.

[00:06:30] Speaker 00:
Your Honor, if you look at the district court's order, it goes through... Can you point us to a specific page in the blue brief where we discuss the other claims that you were just arguing to?

[00:06:55] Speaker 00:
Your Honor, the 352 patent is discussed at page 14 as an example, where the combination of elements that I just described is also described.

[00:07:05] Speaker 00:
And that has to do with the use of static or dynamic location data.

[00:07:10] Speaker 03:
Is that in the background section?

[00:07:15] Speaker 00:
Yes, Your Honor, that's in the background section.

[00:07:17] Speaker 04:
During your argument section, do you address that point?

[00:07:36] Speaker 00:
Your Honor, we're discussing the elements, not the individual patents, when we go through the analysis.

[00:07:42] Speaker 00:
So, for example, on page 26, when we're talking about unique hardware identifiers, that applies to all of the claims that

[00:07:50] Speaker 00:
were found to be unpatentable under Section 101.

[00:07:52] Speaker 00:
Okay.

[00:07:54] Speaker 04:
And do I understand correctly, I've got a technical question about that.

[00:07:57] Speaker 04:
Do I understand correctly that the unique hardware identifier is often in the embodiments in the spec, the Bluetooth address of the device?

[00:08:08] Speaker 00:
No, Your Honor, there's a couple different examples given.

[00:08:10] Speaker 04:
I just said is it one embodiment.

[00:08:12] Speaker 04:
Is that one embodiment?

[00:08:14] Speaker 04:
Maybe the embodiment that's mentioned several times.

[00:08:17] Speaker 04:
Like, for example, in column 10, line 6 through 8, column 8, lines 2 through 8?

[00:08:21] Speaker 00:
Yes, there's also reference to a universal mobile device identifier.

[00:08:27] Speaker 00:
There's another acronym for that.

[00:08:28] Speaker 00:
There are alternatives provided in the specifications for that.

[00:08:32] Speaker 00:
But the embodiment that discusses the Bluetooth discovery process is specifically described as not being limiting.

[00:08:41] Speaker 00:
But it's an embodiment.

[00:08:44] Speaker 04:
I was just trying to understand what the hardware identifier is and asking if in the specification is one embodiment of it a Bluetooth address?

[00:08:54] Speaker 00:
Yes, Your Honor.

[00:08:56] Speaker 00:
The unique hardware identifiers are used in the first instance to track each of the individual devices.

[00:09:04] Speaker 03:
And the database record thus allows one to track devices that were off in a way that was not done in... Counsel, can you succinctly state for us what you contend is the alleged inventive concept that would save the asserted claims?

[00:09:22] Speaker 00:
Your Honor, if we use as a comparison the claims that this Court found to be ineligible in NETSOC,

[00:09:32] Speaker 00:
the claims were directed to a method of social networking.

[00:09:37] Speaker 00:
Here we're talking about a specific technological improvement and the way I characterized it a moment ago in terms of being able to generate positive results for offline devices.

[00:09:50] Speaker 00:
That's a specific technological improvement.

[00:09:53] Speaker 00:
When taken in combination, we have the use of hardware identifiers that will identify device.

[00:10:00] Speaker 00:
We have the use of login credentials that will authenticate a particular user as a member of that network.

[00:10:06] Speaker 00:
We combine that with a server that is tracking, within the profile, static and dynamic location information.

[00:10:14] Speaker 02:
I'm not sure why it's an inventive concept if

[00:10:18] Speaker 02:
A user profile identifies the person by name, gender, maybe marital status and home address and then all of that information gets sent over to some

[00:10:37] Speaker 02:
person potentially interested in connecting with that person, why would the home address information be a technological invention?

[00:10:47] Speaker 00:
It's not just the addresses, Your Honor.

[00:10:49] Speaker 00:
It's the leveraging of the address.

[00:10:51] Speaker 00:
As this court wrote in Bascom, where the technical address that was being leveraged or harnessed, in your words, Your Honor, allowed court's words.

[00:11:04] Speaker 00:
In that case, the harnessing of that address led to the individualized results that were superior because of the location of the ISP server.

[00:11:16] Speaker 00:
In this case, the harnessing of the address allows us to generate individualized results for me and locating Sally in my hypothetical.

[00:11:26] Speaker 00:
which otherwise would not be possible if we were not tracking the device address for Sally and reporting it as the static or permanent address or the available dynamic address.

[00:11:39] Speaker 00:
That's harnessing it and advancing the technology and solving a technical problem.

[00:11:45] Speaker 04:
Where is that addressed in your specification?

[00:11:48] Speaker 04:
Can you point to me where that's

[00:11:55] Speaker 00:
In the 397 patent and in the 352 patent, it's discussed in multiple places.

[00:12:04] Speaker 00:
At the 397, it's in the claims and in the specification.

[00:12:16] Speaker 00:
Specifically, in the 397, it's included in claim one.

[00:12:20] Speaker 00:
What about the specification?

[00:12:23] Speaker 04:
I was asking about the specification.

[00:12:25] Speaker 04:
And again, I was focusing on claim 10.

[00:12:28] Speaker 04:
I want you to know, because that's what you and Bruce focused on.

[00:12:32] Speaker 04:
Claim 10 of a different patent.

[00:12:34] Speaker 03:
875 patent.

[00:12:36] Speaker 03:
Any chance you could take us to the spec, the 875 patent spec?

[00:12:40] Speaker 00:
Yes.

[00:12:40] Speaker 03:
And answer the question posed?

[00:12:42] Speaker 00:
In the 875's classification, Your Honor,

[00:12:48] Speaker 00:
oh, the 875 is not the one that has the device being off and reported, which is why I'm focused on the 352 and the 397.

[00:12:55] Speaker 04:
Where are you focusing on this in your blue brief?

[00:12:58] Speaker 04:
Is it being the technological, maybe the step two inventive concept?

[00:13:03] Speaker 04:
It might be in your next appeal.

[00:13:07] Speaker 00:
It's in the reply brief extensively, and it is, as I described... But you agree you can't raise an argument for the first time on reply in the reply brief, right?

[00:13:17] Speaker 00:
No, Your Honor, but the leveraging of the hardware identifiers is specifically discussed in the blue brief.

[00:13:23] Speaker 04:
It is, but you say that the advantage of the hardware identifiers is being able to enable two mobile devices who might not use the same protocol to nonetheless communicate with one another through a server, right?

[00:13:38] Speaker 00:
That's right, Your Honor.

[00:13:38] Speaker 04:
And that's your alleged inventive concept that I see in the blue brief that you've presented to us.

[00:13:43] Speaker 00:
As to the 875, Your Honor, the connection of incompatible devices

[00:13:48] Speaker 00:
through the server is one of the advantages.

[00:13:51] Speaker 04:
I want to ask you a question about that.

[00:13:53] Speaker 04:
Now, in your blue brief on page nine, you say that figure six shows three devices from figure five, each from a different manufacturer.

[00:14:02] Speaker 04:
But I looked at the spec, and I looked at the figures, and I don't see anywhere where it says that each device is from a different manufacturer.

[00:14:11] Speaker 04:
Am I wrong?

[00:14:12] Speaker 00:
I think there is, Your Honor.

[00:14:14] Speaker 04:
If you're asking about the 875 specifically or... I'm asking yes about the specific statement that you made in your blue brief on page 9.

[00:14:23] Speaker 00:
If you look at column 2, Your Honor, of the specification of the 875, lines 20 to 25, the invention provides a system and method that enables free discovery of others who also desire social interaction, but without being constrained by hardware compatibility issues

[00:14:39] Speaker 00:
inherent in mobile devices by different manufacturers.

[00:14:42] Speaker 04:
But again, what you say is that you say, figure six of the 875 pattern shows the three devices from figure five, each from a different manufacturer, including, I mean, I'm trying to figure out, I understand the language of column two, maybe this is just one sort of stretch, but where does the spec say

[00:15:07] Speaker 04:
Figure 6 shows devices from different manufacturers.

[00:15:11] Speaker 00:
If you look at Figure 6, it references multiple devices.

[00:15:14] Speaker 00:
If you go back one page on Figure 4, it shows that those devices are from different manufacturers.

[00:15:20] Speaker 00:
One is identified as a Blackberry, the other one's a flip phone, and the other one is a, it just says mobile phone.

[00:15:27] Speaker 04:
Okay.

[00:15:27] Speaker 04:
Thank you for that.

[00:15:29] Speaker 00:
Your Honor, recognizing that my time is up.

[00:15:32] Speaker 00:
Right.

[00:15:33] Speaker 00:
We'll try to give you some more final time, okay?

[00:15:35] Speaker 00:
Thank you.

[00:15:35] Speaker 02:
Let's hear it from the other side.

[00:15:38] Speaker 01:
Your honors, and may it please the court, Doug Grady of Baker Hustler, and I'm joined by Paul Brini.

[00:15:46] Speaker 01:
I'm going to go right to the issue called out initially.

[00:15:50] Speaker 01:
There are three additional data processing steps that my friend on the other side suggests add something to the invention, but the simple truth is

[00:16:00] Speaker 01:
In 2007, which is the date that my friend acknowledges is the important date here, there are two concessions that Facebook was out and about, and indeed Facebook for Mobile was present in 2007.

[00:16:14] Speaker 01:
First at oral argument, the trial court asked and wireless discovery conceded that Facebook was called out in the provisional application.

[00:16:23] Speaker 01:
Also, the

[00:16:27] Speaker 01:
Also, in the opening, in the blue brief, there was a discussion where wireless discovery concedes that Facebook introduced a rudimentary functionality called Facebook for mobile.

[00:16:39] Speaker 01:
That's at docket 18, page three.

[00:16:42] Speaker 01:
And with those two, with that in mind, I want to move straight to the three additional alleged data processing steps.

[00:16:49] Speaker 01:
One, hardware identification, two, credentials-based authentication, and three, the layering of location data.

[00:16:57] Speaker 01:
And I'd humbly submit that in 2007, those three things were certainly present in Facebook and Facebook mobile, at least.

[00:17:05] Speaker 01:
Right?

[00:17:06] Speaker 01:
So hardware identification is, did I log on to Facebook on my laptop or my desktop?

[00:17:11] Speaker 03:
I'm going to let you get into this, but I have to admit, I'm still, my mind is still back on the pivot that opposing counsel was doing to focus more on the 352 and 397 patents versus the 875 patent.

[00:17:22] Speaker 03:
Could you, up front, before you go into where you were going, just address that aspect?

[00:17:27] Speaker 03:
Our reading of the blue brief was the main focus was on the 875 there.

[00:17:32] Speaker 01:
Well, I'm in the unenviable position of clarifying this position.

[00:17:36] Speaker 01:
I think their view is that if the court had correctly found an exemplary claim that was not claim 10 of the 875 patent and admitting they didn't do that, then they would have incorporated these three deliberate extra steps, these three additional data processing steps, which had the court done that,

[00:17:55] Speaker 01:
would have given them the inventive step that they needed at Alice 2.

[00:17:58] Speaker 01:
I don't think that that's called out particularly, but I think that that's... What's your position?

[00:18:02] Speaker 01:
Well, our position is that all of this is, that NETSOC, the match invent versus match group incorporated, is particularly perfectly on point across here.

[00:18:11] Speaker 01:
None of this is new, it's all abstract, and there's very little, there's very little substantive hows articulated by opposing counsel as to why that case doesn't particularly apply here.

[00:18:24] Speaker 03:
So should we just be focused on the 875 patent?

[00:18:26] Speaker 03:
I feel like I'm a broken record.

[00:18:28] Speaker 03:
I don't mean to be.

[00:18:28] Speaker 03:
I just want to get a clear answer on this.

[00:18:33] Speaker 01:
I believe what you're asking, and maybe perhaps I'm not hearing the question precisely, but the 875 claim 10 is the only one that's in play here.

[00:18:41] Speaker 01:
That patent and that particular claim do not mention those three

[00:18:47] Speaker 02:
This is the district court opinion where there was a representative claim chosen from each of the four patents, right?

[00:18:56] Speaker 01:
That's, well, if I understand the precise statement you just made, I think the court was trying to say the court was choosing from across all four patents one claim.

[00:19:06] Speaker 02:
That's right.

[00:19:07] Speaker 01:
And they chose claim 10 of the 875.

[00:19:09] Speaker 01:
That's correct, Your Honor.

[00:19:10] Speaker 02:
OK.

[00:19:10] Speaker 02:
But it wasn't just claim 10 of 875 that the district court chose to evaluate.

[00:19:16] Speaker 02:
It also put into play one claim from each of the other three patents, right?

[00:19:21] Speaker 01:
Well, the point be, well,

[00:19:23] Speaker 02:
I just wanted yes or no first.

[00:19:26] Speaker 01:
Yes.

[00:19:26] Speaker 02:
OK then.

[00:19:27] Speaker 02:
So there were four claims that were in play and were deemed to be representative of the entire basket of claims.

[00:19:34] Speaker 01:
I'm sorry.

[00:19:35] Speaker 01:
I'm not sure what I said yes to.

[00:19:37] Speaker 01:
I apologize.

[00:19:38] Speaker 01:
When the court chose claim 10 of the 875 patent, it believed that across all four, that was the best one.

[00:19:46] Speaker 01:
That was the one that was most exemplary.

[00:19:49] Speaker 02:
It didn't also include claim one of the 352, claim one of the 267, and claim one of the 397 as representative.

[00:19:57] Speaker 04:
But look at page A-70, A-71, A-72.

[00:20:00] Speaker 04:
The court's talking about L as step one and not just limiting its analysis to claim 10 of the 875.

[00:20:10] Speaker 01:
I'm sorry, Your Honor.

[00:20:11] Speaker 04:
Could you provide us a... Could you look at page A-70 of the record?

[00:20:17] Speaker 01:
Yes, Your Honor.

[00:20:18] Speaker 04:
Last paragraph.

[00:20:19] Speaker 04:
Yes.

[00:20:20] Speaker 04:
I would note, if you look at page A69, this is under the heading of ALICE step one, and then if you look at page A70 at the bottom,

[00:20:29] Speaker 04:
he starts talking about another claim, claim one of the 352, and talking about what it is directed to.

[00:20:36] Speaker 04:
And then on the next page, at page 71, first full paragraph, he says claim one of the 267 patent, and says what it's directed to.

[00:20:46] Speaker 04:
And then on the next page, at page 72, he says claim one of 397 patent, and says what it's directed to.

[00:20:52] Speaker 04:
So I think your answer to Judge Tenn's question is yes.

[00:20:55] Speaker 04:
The district court did analyze not just claim 10, but 87-5.

[00:21:01] Speaker 01:
That is what I intended to say yes to, Your Honor.

[00:21:03] Speaker 01:
Yes.

[00:21:04] Speaker 02:
OK, then.

[00:21:05] Speaker 02:
We do agree.

[00:21:06] Speaker 02:
It wasn't just one claim.

[00:21:07] Speaker 01:
It was four claims.

[00:21:08] Speaker 01:
Yes.

[00:21:09] Speaker 01:
I apologize.

[00:21:10] Speaker 01:
I appreciate now the question presented.

[00:21:12] Speaker 01:
And the answer is yes.

[00:21:14] Speaker 02:
OK, so then what I'm trying to figure out then is, do we need to evaluate those four identified claims?

[00:21:23] Speaker 02:
These were, in fact, the four claims that your side identified as being representative, and then the district court agreed with you, and then concluded that these four representative claims are no good under 101.

[00:21:34] Speaker 01:
Right well and no matter how you look at it the addition of those three claims the three particular data Processing steps that are called out by my friend don't add anything new or inventive above and beyond I suppose one argument would be that well the appellant is the master of his own appeal and the appellant for whatever reason is

[00:22:03] Speaker 02:
chose to focus really just on one of those four representative claims that was litigated below.

[00:22:08] Speaker 02:
And that one claim is claim 10 of the 875.

[00:22:12] Speaker 02:
That was the focus of their argument.

[00:22:15] Speaker 02:
And so for purposes of appeal, even if the district court considered four different claims, this appeal only needs to consider one claim, the 875's claim 10.

[00:22:26] Speaker 01:
I would agree that that's one argument.

[00:22:28] Speaker 01:
Another argument would be that the different additions to the other three are not differences with a difference, but distinctions with differences, if you will.

[00:22:39] Speaker 02:
And so obviously we heard today a big

[00:22:43] Speaker 02:
focus on this location data element.

[00:22:48] Speaker 02:
Yes.

[00:22:49] Speaker 02:
Can you talk just about that?

[00:22:51] Speaker 01:
Sure.

[00:22:51] Speaker 01:
Location data has been used in social networking for a long time, at least as late as 2007, which is the date that they... Is there something in the specification that supports that, since we're looking at a decision on the pleadings?

[00:23:06] Speaker 01:
Well, I'm sorry.

[00:23:15] Speaker 01:
Well, let me see.

[00:23:16] Speaker 01:
So two places it's present is, first of all, the concession that I'm sorry.

[00:23:23] Speaker 01:
The particular question presented is whether location data is called out as being in existence prior to 2007.

[00:23:28] Speaker 04:
Yeah, you were saying that location data is something that's been done for a long time.

[00:23:33] Speaker 04:
And I'm looking for some sort of admission to that effect would be helpful to know, given the procedural posture in which this case is presented to us.

[00:23:42] Speaker 01:
Right.

[00:23:44] Speaker 01:
As a threshold matter, part of the problem that we're faced with, and I'm going to put a pin in that answer and I'd like to come back, but part of the problem we're faced with here, Your Honors, is that the profound forfeiture of all of these arguments, if you look at the appendix at 269, that's the first of seven pages that were offered in opposition to our 101 motion.

[00:24:05] Speaker 01:
And I mean that, and that's very particular.

[00:24:07] Speaker 01:
There are seven pages that were offered in opposition.

[00:24:11] Speaker 01:
everything else after that paper that was filed by wireless discovery has come have been arguments effectively contrived after that date be that an oral argument or be that in the blue brief or or in reply and that puts us in the unenviable position of sitting of I think that this is forfeiture in fact in a way that's profoundly prejudicial now having said that coming back to the question

[00:24:40] Speaker 01:
Whether it was called out, particularly in the specification, I think it is.

[00:24:44] Speaker 04:
Can I ask you something?

[00:24:46] Speaker 04:
I hear what you're saying.

[00:24:47] Speaker 04:
But it seems to me that the district court considered those arguments, notwithstanding the fact that they were presented for the first time in oral argument.

[00:24:56] Speaker 04:
And so the standard of review that would apply to his decision that he doesn't see waiver and that he's going to go ahead and consider those arguments is an abuse of discretion.

[00:25:08] Speaker 04:
You know, you've got a situation where the district court, like in page 875, is acknowledging wireless discoveries, arguments made with oral arguments.

[00:25:18] Speaker 01:
Yes.

[00:25:18] Speaker 01:
I appreciate that.

[00:25:18] Speaker 04:
He thought that was fine.

[00:25:20] Speaker 01:
I appreciate that.

[00:25:21] Speaker 01:
I do appreciate that they made arguments at oral argument that the court took under advisement.

[00:25:27] Speaker 04:
So and considered and addressed.

[00:25:29] Speaker 01:
Yes.

[00:25:29] Speaker 04:
You should too.

[00:25:30] Speaker 01:
I do.

[00:25:31] Speaker 04:
OK.

[00:25:31] Speaker 04:
So let's just focus on the merits.

[00:25:33] Speaker 01:
OK.

[00:25:36] Speaker 01:
Perhaps I'll need a moment actually to look at the specification.

[00:25:39] Speaker 01:
I apologize.

[00:25:40] Speaker 01:
I don't have an answer.

[00:25:40] Speaker 01:
The discrete question asked, which is I heard it is, can you point to a place in the specification of the 875 patent where location data is called out as having existed prior to the filing date?

[00:25:50] Speaker 04:
To be honest with you, you're standing before me and saying it exists already.

[00:25:54] Speaker 04:
Isn't that as helpful as telling me where I can find that in the specification?

[00:25:59] Speaker 01:
I appreciate that.

[00:26:00] Speaker 01:
I don't have a pinpoint site.

[00:26:02] Speaker 01:
I do know that in 2007 on Facebook.

[00:26:03] Speaker 01:
How do you know that?

[00:26:06] Speaker 01:
Well, again, had this been something that had been pending prior to oral argument, we would have called this out.

[00:26:11] Speaker 01:
But in 2007, everyone, if Facebook mobile was live and Facebook was live, and people were, anyone, and including my client,

[00:26:20] Speaker 01:
eHarmony, a dating entity, everyone knew where they were.

[00:26:23] Speaker 01:
Everyone had to know where a unique user was because someone doesn't want to meet someone who is dating or date someone who is 5,000 miles away.

[00:26:34] Speaker 01:
Do you have another argument?

[00:26:35] Speaker 01:
I'm sorry.

[00:26:36] Speaker 04:
Do you have another argument besides that it's conventional?

[00:26:43] Speaker 01:
Well, sorry.

[00:26:46] Speaker 01:
But I understand, above and beyond the fact that it's conventional, the fact is that all of those three additional data processing steps called out by my friend, none of them show anything particularly new other than the fact that they were there at the time.

[00:27:01] Speaker 01:
And that's sort of antithetical to Axel, to

[00:27:07] Speaker 01:
American Axle Manufacturing Inc., which requires that something new on top of the simple recitation that it was present at the time and that it was another data processing step.

[00:27:36] Speaker 01:
I'd like to pause there, Your Honor.

[00:27:38] Speaker 01:
And I know, although it's untraditional, you've asked for a particular pinpoint site.

[00:27:42] Speaker 01:
And I'd like the opportunity to find that during the pendency of my friend's last few moments, if that's OK.

[00:27:50] Speaker 02:
That's really unorthodox.

[00:27:54] Speaker 02:
a colleague at the table and that person should be able to do whatever you need to do.

[00:28:00] Speaker 01:
Okay.

[00:28:01] Speaker 01:
I'm sorry, don't do that.

[00:28:02] Speaker 01:
I would imagine that my colleague in the next case will call that out with specificity.

[00:28:12] Speaker 01:
They're the case right behind ours.

[00:28:16] Speaker 02:
Do you have any other arguments you want to make?

[00:28:18] Speaker 02:
I don't.

[00:28:20] Speaker 01:
Other than those, I'll rest.

[00:28:22] Speaker 01:
And noting I have two minutes, unless your honors have any questions, I'll rest in those briefs.

[00:28:28] Speaker 02:
Thank you.

[00:28:29] Speaker 02:
Very good.

[00:28:35] Speaker 02:
Mr. Cetti, you ran out of time, but we'll give you two minutes.

[00:28:40] Speaker 00:
Your Honor, I just want to clean up the perception that not all four of those claims are at issue.

[00:28:50] Speaker 00:
Your Honor pointed out correctly that the district court found first in this appeal that the 875 Claim 10 was representative

[00:28:58] Speaker 00:
Then the district judge compared that to three other claims and found that those additional steps or processes that are in the 352, the 267, and the 397 were immaterial.

[00:29:10] Speaker 00:
The reason he found that was that he had distilled or condensed those additional elements down to where they had no meaning.

[00:29:18] Speaker 00:
That distillation or boiling down was one of the reasons why there was error.

[00:29:23] Speaker 00:
As far as the briefing,

[00:29:24] Speaker 00:
You took issue as a group, I think, with the notion that we focused on that error in using the 875 claim 10.

[00:29:32] Speaker 00:
But just to be clear, both of the blue briefs in this appeal and the next one do point out the additional contributions from the 352 patent at page 14 of each of the briefs.

[00:29:44] Speaker 00:
Both of them touch the additional contributions of the 397 patent at page 15 of those briefs.

[00:29:50] Speaker 00:
They then summarize, page 18 of each of the briefs, all of those claims together, which are then analyzed in comparison with the purportedly representative claim.

[00:30:03] Speaker 00:
The problem we have is that the representative claim

[00:30:06] Speaker 00:
whether you look at the 875 in this appeal or the 267 claim 10 in the appeal coming up, gives no value to those additional technological improvements that I attempted to highlight.

[00:30:18] Speaker 00:
You all viewed that as a pivot.

[00:30:20] Speaker 00:
I want to just clarify that all of those arguments were preserved, and they're in the blue briefs.

[00:30:27] Speaker 00:
But let's talk about why the district court's analysis was inappropriate.

[00:30:35] Speaker 00:
It doesn't take into account the combination of elements, as I described them, that lead to a different technological result.

[00:30:42] Speaker 00:
It doesn't take into account the, Your Honor, my rebuttal time.

[00:30:47] Speaker 02:
Okay.

[00:30:47] Speaker 00:
We'll see you soon.