[00:00:00] Speaker 01:
Our next case for argument is 24-1099, Aviation Capital Partners versus SH Advisors.

[00:00:09] Speaker 01:
Mr. Friedman, please proceed when you're ready.

[00:00:22] Speaker 03:
Good morning, your honors.

[00:00:23] Speaker 03:
May it please the court.

[00:00:24] Speaker 03:
My name is Josh Friedman and I'm arguing for the appellant aviation capital advisors who also goes by specialized tax recovery or STR.

[00:00:35] Speaker 03:
The district court erred in finding that the 988 patent was ineligible for three reasons.

[00:00:41] Speaker 03:
First, it admitted that the claims at least recite a practical application of an abstract idea.

[00:00:47] Speaker 03:
Second, it disregarded the Patent Office's factual finding that the claims had sufficient inventive concept.

[00:00:53] Speaker 03:
And third, it found that the claims as a whole are directed to an abstract idea, one different than both Citus Hawk and the Patent Office had asserted, while ignoring physical structure and inventive concept in the claims.

[00:01:05] Speaker 03:
These errors warrant reversal.

[00:01:08] Speaker 03:
The district court expressly found that the claims recite a practical application of an abstract idea.

[00:01:14] Speaker 03:
In fact, the claims here are so narrow of an application that there seems to be zero chance of preemption for future innovators.

[00:01:22] Speaker 00:
And are you applying that practical application to the step one inquiry as to whether or not it was an abstract idea or to the step two inquiry?

[00:01:32] Speaker 03:
That's a good question.

[00:01:33] Speaker 03:
I think it's more applicable under the law of this court to step two as to whether or not there is inventive concept.

[00:01:39] Speaker 03:
But as we've talked about in our briefs, there are cases that seem to apply that.

[00:01:43] Speaker 00:
I'm confused by it, because doesn't the PTO guidance, which will also place a lot of emphasis on do it on step one and not step two.

[00:01:51] Speaker 03:
It's step two A, I believe.

[00:01:54] Speaker 02:
Which under the PTO, is that step one or step two?

[00:01:58] Speaker 02:
The PTO renumbers the rules.

[00:02:00] Speaker 02:
in an incredibly confusing way.

[00:02:03] Speaker 02:
I agree.

[00:02:04] Speaker 02:
Well, which is it under our law?

[00:02:05] Speaker 02:
Is it step one or step two?

[00:02:07] Speaker 03:
Under our law, under the law of this Federal Circuit.

[00:02:10] Speaker 02:
How do you correlate what the PTO is saying it comes under to our law?

[00:02:16] Speaker 02:
Not where you think it should be under our law.

[00:02:18] Speaker 03:
Yeah, I believe the law of the Federal Circuit is that step one is, is the claim directed to an abstract idea.

[00:02:25] Speaker 03:
That's step one.

[00:02:26] Speaker 02:
And step two is... And PTO applies that practical

[00:02:31] Speaker 02:
application test to our Step 1, don't they?

[00:02:35] Speaker 03:
In their Step 2A is when they apply it.

[00:02:38] Speaker 00:
But it is Step 1.

[00:02:40] Speaker 03:
It is Step 1 in this Court.

[00:02:45] Speaker 00:
So, and I think what we said in our brief too is... When you say in this Court, I mean we've got cases, I mean don't a lot of the 101 cases we have involve, is it given a practical application?

[00:02:59] Speaker 03:
No, I think a lot of cases actually have found that there is not a practical application of the abstract idea.

[00:03:04] Speaker 02:
How do you explain Mayo if this is actually enough to save a claim from 101?

[00:03:11] Speaker 02:
Mayo is an abstract idea that's incorporated into a practical application of a test.

[00:03:20] Speaker 02:
In fact, almost every diagnostic test case we found ineligible has a practical application

[00:03:28] Speaker 02:
the natural law.

[00:03:30] Speaker 02:
Why is that practical?

[00:03:32] Speaker 02:
I mean, this is coming from the PTO, right?

[00:03:34] Speaker 02:
We don't have to pay any attention to what the PTO says anyway, but I don't even understand how this practical application test is consistent with the Supreme Court precedent on this.

[00:03:46] Speaker 03:
Right.

[00:03:46] Speaker 03:
I think you have to be a little more specific as to what the practical application is here.

[00:03:51] Speaker 03:
And so I think it may be helpful if I read the PTO's explanation in this case as to what the practical application was.

[00:03:59] Speaker 03:
And what the PTO said was, and this is on page appendix 430, paragraph 12,

[00:04:05] Speaker 03:
The PTO said, the claims teach both a practical application and significantly more in determining that an aircraft landed at an airport based on speed or altitude data during a time when the location of the aircraft was indeterminate.

[00:04:19] Speaker 03:
And that piece of the claim is within a broader claim.

[00:04:22] Speaker 03:
That's not the entire claim.

[00:04:23] Speaker 01:
OK, so here's one of my problems.

[00:04:25] Speaker 01:
One of my problems I'm just going to walk you through in a very practical way.

[00:04:27] Speaker 01:
You can tell me what is wrong with my concern.

[00:04:31] Speaker 01:
Forget about what the PTO said right here in paragraph 12.

[00:04:35] Speaker 01:
In your complaint, you said only one sentence about the PTO decision is paragraph 17.

[00:04:42] Speaker 01:
You're familiar with it?

[00:04:44] Speaker 03:
Yes.

[00:04:44] Speaker 01:
Okay.

[00:04:45] Speaker 01:
You said, as the PTO found the claims of the 988 patent are not directed to an abstract idea.

[00:04:52] Speaker 01:
Is that a question of law or a question of fact?

[00:04:54] Speaker 03:
The abstract, under this court's test, the abstract idea of wrong is a question of law.

[00:04:58] Speaker 01:
Question of law.

[00:04:59] Speaker 01:
So there's no deference given to anybody for a question of law, correct?

[00:05:02] Speaker 01:
Correct.

[00:05:03] Speaker 01:
Okay.

[00:05:03] Speaker 01:
The second thing you said, you said two things in a sentence.

[00:05:06] Speaker 01:
As the USPTO office found, the claims of the 988 patent are not directed to an abstract idea and are patent eligible.

[00:05:13] Speaker 01:
The ultimate conclusion of patent eligibility is that one of law are fact.

[00:05:16] Speaker 01:
That's a question of law, Your Honor.

[00:05:17] Speaker 01:
So the only thing you've said in your entire complaint

[00:05:20] Speaker 01:
about the PTO decision that was made during the prosecution process is that the PTO made two legal determinations.

[00:05:28] Speaker 01:
That's it.

[00:05:29] Speaker 01:
You say nothing else.

[00:05:31] Speaker 01:
Am I missing something?

[00:05:32] Speaker 03:
I think what's missing, Your Honor, is that that determination was based on an underlying question of fact that was resolved at the PTO.

[00:05:37] Speaker 01:
That your complaint didn't allege.

[00:05:40] Speaker 01:
For a Rule 12, I look at the four corners of the complaint and I accept it as true.

[00:05:45] Speaker 01:
I accept as true the two PTO legal determinations that you referenced in the complaint.

[00:05:53] Speaker 01:
How do you prevail?

[00:05:54] Speaker 01:
And why the heck didn't you even ask to amend your complaint?

[00:05:56] Speaker 01:
I don't understand the lawyering.

[00:05:58] Speaker 03:
I can't answer the second question because I was not involved in that.

[00:06:02] Speaker 03:
But what I can say is the other issue here is that there were two parallel motions for 101 that were going on at the district court.

[00:06:09] Speaker 03:
There was the motion to dismiss by... So I just thought... What does any of that have to do with my point?

[00:06:14] Speaker 01:
You make only... The complaint is the four corners of all I'm allowed to look at it for 12B, correct?

[00:06:19] Speaker 03:
Well, the court looked at more than that.

[00:06:21] Speaker 01:
I didn't ask you what the court did.

[00:06:23] Speaker 01:
According to our law, according to every regional circuit law in the country, what presents the four corners of what you look at at the 12th B-stage?

[00:06:32] Speaker 03:
It was in the complaint and also attachments to the complaint.

[00:06:35] Speaker 01:
Right.

[00:06:35] Speaker 01:
Okay, but you didn't attach prosecution history to the complaint here, correct?

[00:06:38] Speaker 01:
There's case law that says that... Did you attach the prosecution history to the complaint?

[00:06:41] Speaker 01:
No.

[00:06:41] Speaker 01:
No.

[00:06:42] Speaker 01:
So under our law, we look at the complaint.

[00:06:44] Speaker 01:
The only thing you say about what happened at the PTO are two legal conclusions the PTO made.

[00:06:49] Speaker 01:
I'm now struggling to see how the district court somehow erred in failing to give deference to the PTO, which is your argument on appeal, when the only two things you reference in the complaint are two legal conclusions that were made by the PTO.

[00:07:02] Speaker 03:
And again, I will say that under the case law, the court is allowed to give judicial notice to the prosecution history, and did in this case.

[00:07:10] Speaker 03:
And SCR or Cytosoft did not object to that.

[00:07:13] Speaker 03:
They, in fact, also asked the court to take judicial notice of the prosecution history for other reasons on the motion to dismiss.

[00:07:19] Speaker 03:
So the prosecution history is part of the public record for the patent.

[00:07:24] Speaker 03:
And it should be considered on a motion to dismiss.

[00:07:26] Speaker 03:
There's no reason why that

[00:07:27] Speaker 01:
entirety of the public record of the pension only thing you alleged in your complaint are two legal determinations by the PTO where is there an allegation in your complaint that the district court failed to give deference to I would again say that that is included within the allegation that that the claims are not directed to an abstract idea so now from now on in a complaint when somebody says my claims obvious or my claims not obvious

[00:07:52] Speaker 01:
I am supposed to, kind of like a black box jury verdict, assume that a lawyer who knows how to plead, nonetheless, failed to do so.

[00:08:00] Speaker 01:
And I should just give the lawyer the benefit of every fact finding that possibly he or she could argue, but didn't actually argue.

[00:08:07] Speaker 03:
Well, the problem with that, Your Honor, is that... There's a lot of problems with that.

[00:08:10] Speaker 01:
I'm glad that you see at least one.

[00:08:11] Speaker 03:
Yeah.

[00:08:12] Speaker 03:
Patents are presumed valid, right?

[00:08:14] Speaker 03:
And for obviousness, that's never been a problem.

[00:08:16] Speaker 03:
You don't need to allege that your patent is not obvious in your complaint, right?

[00:08:21] Speaker 03:
For some reason, there has developed some suggestion that there needs to be a specific allegation in your complaint that your patent is eligible, even though, again, patents are supposed to be presumed valid, right?

[00:08:34] Speaker 03:
Our position would be that that is incorrect.

[00:08:37] Speaker 03:
You shouldn't have to allege that your patent is valid in your pleading because it's already presumed by law.

[00:08:41] Speaker 01:
Your argument on appeal is the district court erred by failing to give deference to PTO fact findings.

[00:08:49] Speaker 01:
We're not having some lofty discussion of what patentees ought to have to prove or not have to prove.

[00:08:56] Speaker 01:
I'm focusing on the argument you made in your brief, which is the district court failed to give deference to a fact finding.

[00:09:03] Speaker 01:
I don't see any allegations in your complaint that track that.

[00:09:06] Speaker 01:
So I'm having a hard time finding a district court guilty of having done something wrong when you didn't make the allegations.

[00:09:14] Speaker 03:
OK.

[00:09:14] Speaker 03:
And I just want to point out that's only one of our arguments on appeal as to why this should be overturned.

[00:09:21] Speaker 03:
So if the court doesn't agree that it's included in the allegation that the PTO's ultimate conclusion should be upheld,

[00:09:30] Speaker 03:
then we have other reasons also, right, that no matter what's in the PTO's findings, the claims are not directed to an abstract idea and that they are directed to a practical application, no matter what the PTO says.

[00:09:40] Speaker 01:
It's just manipulation of data.

[00:09:42] Speaker 01:
I don't see anything else.

[00:09:43] Speaker 01:
And this wacky idea you have about how it's some special transponder, I don't see that in the spec.

[00:09:49] Speaker 01:
I don't see that in the claims anywhere.

[00:09:51] Speaker 01:
I don't see anything in these claims except manipulation of data.

[00:09:54] Speaker 01:
What am I missing?

[00:09:56] Speaker 01:
Show me what I'm missing in the claim.

[00:09:58] Speaker 01:
Tell me in the claim where the claim itself is doing something other than simply manipulating data.

[00:10:03] Speaker 03:
It is in the specification and in the claims.

[00:10:06] Speaker 01:
In the claim.

[00:10:07] Speaker 01:
Just show me where in the claim.

[00:10:08] Speaker 03:
I will turn to second.

[00:10:15] Speaker 03:
So it's specifically in dependent claims.

[00:10:21] Speaker 03:
For example, independent claim 13 specifically recites a receiver positioned in proximity to an airport configured and disposed to receive transponder data from an automatic dependent surveillance broadcast ADS-B transponder mounted on an aircraft.

[00:10:48] Speaker 03:
So that is the specific ADS-B transponder.

[00:10:50] Speaker 03:
So that's specifically... We're not claiming that.

[00:10:54] Speaker 02:
We didn't invent that, right?

[00:10:55] Speaker 03:
That is part of the claim, right?

[00:10:58] Speaker 02:
We're claiming the data that this outputs.

[00:11:01] Speaker 03:
No, no.

[00:11:02] Speaker 03:
We did not invent the data that it outputs, but as we said in our briefs... We're claiming the use of the data it outputs.

[00:11:08] Speaker 03:
We are.

[00:11:09] Speaker 03:
And this is, again, a new, at the time the patent was filed, this was a new device.

[00:11:14] Speaker 03:
This was not a device in widespread use.

[00:11:16] Speaker 03:
And there's a lot of evidence in the record for that.

[00:11:18] Speaker 00:
So you're claiming invention of the device?

[00:11:21] Speaker 03:
The device is part of an invention.

[00:11:23] Speaker 03:
It's a tool.

[00:11:24] Speaker 00:
A tool.

[00:11:25] Speaker 00:
But was it an exist?

[00:11:26] Speaker 00:
Did you invent it?

[00:11:27] Speaker 00:
Are you claiming the invention, the creation of this?

[00:11:30] Speaker 03:
We are not.

[00:11:31] Speaker 03:
But the issue here is not whether the claim is inventive.

[00:11:33] Speaker 03:
The issue is whether it's an abstract idea and not patent eligible.

[00:11:38] Speaker 03:
And the question there is, if there are physical components within the claim, the question is whether those are ubiquitous or common, such that the use of them.

[00:11:48] Speaker 00:
So your allegation is that this wasn't routine and the use of the transponder was not routine?

[00:11:57] Speaker 03:
Absolutely.

[00:11:57] Speaker 03:
And it's not just our allegation.

[00:11:59] Speaker 03:
There's a declarant from Citus Hawk, from the appellee that specifically says that, that says that these were not in wide use at the time that the patent was filed.

[00:12:08] Speaker 03:
So I think the record is pretty clear that the use of ADS-B in any respect was not something that was conventional at the time the pen was filed.

[00:12:16] Speaker 02:
It's still data.

[00:12:19] Speaker 02:
I mean, this could all be done by pencil and paper, couldn't it?

[00:12:23] Speaker 02:
If you get the data from the air traffic control, you get the data from this new transponder, and then you figure out the tax laws in all the jurisdictions, you can do this by pen and paper.

[00:12:35] Speaker 02:
It's going to take a long time.

[00:12:37] Speaker 02:
So maybe the software that you created to implement this has a business purpose and we can use.

[00:12:43] Speaker 02:
But that's never been enough to get it over a 101 hump in our court.

[00:12:48] Speaker 03:
I disagree with that, Your Honor.

[00:12:50] Speaker 03:
The test is not whether it could at some point be done with pencil and paper.

[00:12:54] Speaker 03:
Anything that's done on a computer could be done with pencil and paper with enough time and effort.

[00:12:58] Speaker 03:
The issue is whether you are just taking something that's an idea and saying, do it on a computer, or taking something that was already known in the past and then just making it faster or better on a computer.

[00:13:08] Speaker 03:
And that's not the case here.

[00:13:09] Speaker 02:
How are you not saying take information and do it on the computer?

[00:13:12] Speaker 02:
You don't say anything.

[00:13:14] Speaker 02:
First of all, what the computer is even doing is very abstract here.

[00:13:19] Speaker 02:
It doesn't even tell you how it does it, what it's doing, what kind of tax laws.

[00:13:23] Speaker 02:
I don't even know what tax conclusions it's coming up to with regard to these claims.

[00:13:28] Speaker 02:
You have no specificity whatsoever in how you're using this data.

[00:13:33] Speaker 02:
You're saying take this data, feed it into the computer, and it spits out more information.

[00:13:38] Speaker 03:
Again, I disagree with what the patent office found and what we would say also is that the specific use of speed and altitude data to determine where an aircraft landed during a time where there was a gap in existing FAA records, that that is something that is new and unique.

[00:13:53] Speaker 03:
It was not something that was done before and it is not something that is simply being applied on the computer.

[00:13:58] Speaker 03:
That in itself is an inventive concept that is enough to confer eligibility.

[00:14:02] Speaker 03:
And I'm into my rebuttal time, so I don't deserve the remainder of my argument for rebuttal.

[00:14:06] Speaker 01:
No problem.

[00:14:07] Speaker 01:
We'll save the rest for rebuttal.

[00:14:08] Speaker 01:
Thank you.

[00:14:08] Speaker 01:
Mr. Gibson.

[00:14:18] Speaker 04:
Good morning, Your Honors.

[00:14:19] Speaker 04:
May it please the Court.

[00:14:21] Speaker 04:
I would like to start

[00:14:23] Speaker 04:
where my opponent left off addressing the relevance of the transponders to the claims here.

[00:14:28] Speaker 04:
This was something that STR made a big deal about in the briefs and has emphasized again.

[00:14:34] Speaker 04:
In the district court, STR expressly disclaimed reliance on the transponders to provide patent eligibility.

[00:14:42] Speaker 04:
And so I'm referencing here its appendix 450, its briefing in the district court on the section 101 motion to dismiss.

[00:14:51] Speaker 04:
There, what STRs told the district court is, this court should not be distracted by elements like generic computers and transponders, which form no part of STR's argument that the claims have had an eligible.

[00:15:02] Speaker 04:
So in the district court, STR did not rely on transponders.

[00:15:05] Speaker 04:
They strictly relied on this idea that determining whether or not an aircraft landed based on speed or altitude data was inventive.

[00:15:13] Speaker 01:
I was also sitting here struggling a little bit going back and forth.

[00:15:17] Speaker 01:
Actually, with my law clerk up there, I didn't see this claim 13 argument in their blue brief.

[00:15:21] Speaker 01:
Am I missing it?

[00:15:21] Speaker 01:
Was this made and I missed it?

[00:15:23] Speaker 04:
No, you're correct, Your Honor.

[00:15:24] Speaker 04:
The parties have agreed since the district court that claim one was representative.

[00:15:28] Speaker 04:
OK.

[00:15:29] Speaker 04:
And so claim one is the only claim that has been briefed here.

[00:15:32] Speaker 01:
Makes me feel a little better.

[00:15:32] Speaker 01:
Thank you.

[00:15:34] Speaker 04:
Yes, Your Honor.

[00:15:35] Speaker 02:
Can you tell me the specifics of this?

[00:15:39] Speaker 02:
Is this just figuring out where the airport is at different periods of time because different states have different tax laws regarding aircraft?

[00:15:49] Speaker 02:
I don't even understand from the claims what the point of this whole invention is, but it seems to be trying to figure out the airport's sitting on the ground at this airport, the airport's sitting at the ground on this airport from these days to days, and then you can put all that data together

[00:16:02] Speaker 02:
and you have somehow fed all the tax laws of all the 50 states into a computer, and it spits out, here's your tax liability.

[00:16:09] Speaker 04:
Is that what it's doing?

[00:16:10] Speaker 04:
Yes, Your Honor.

[00:16:11] Speaker 04:
I think that is the gist of the invention here.

[00:16:13] Speaker 00:
There's an existing database that comes from the FAA of information about where aircraft have... And so presumably state tax is based on the amount of time the aircraft spends within the state boundaries.

[00:16:25] Speaker 04:
That is one way that it gets calculated.

[00:16:27] Speaker 04:
This is actually state, county, and there's even localities that have their own

[00:16:31] Speaker 04:
mechanisms, some of its property tax, some of its use tax.

[00:16:34] Speaker 00:
But it's based on the amount of time you craft.

[00:16:37] Speaker 00:
remains on the record.

[00:16:39] Speaker 04:
It can be based on time, I think, sometimes.

[00:16:41] Speaker 00:
I mean, that's what they're trying to get at here, right?

[00:16:43] Speaker 00:
Yes, Your Honor.

[00:16:43] Speaker 04:
They're collecting data from two different data sources, combining it, and then outputting some information about taxability status.

[00:16:51] Speaker 04:
That is the essence of the claims.

[00:16:52] Speaker 04:
That is correctly what the district court found the claims are directed to, is collecting and analyzing information which under- And this all had to have been done before, because the tax laws were in existence before.

[00:17:04] Speaker 02:
This is just using different data to come up with the same information.

[00:17:09] Speaker 04:
Yes, Your Honor.

[00:17:09] Speaker 04:
If you were taxing aircraft, you were having to get the information from somewhere.

[00:17:13] Speaker 04:
It could have been a person on the ground observing aircraft, taking off and landing from the airport and using that information to then tax the aircraft.

[00:17:21] Speaker 04:
But this is just a different source of data to accomplish the same thing that a human could have been doing with pen and paper.

[00:17:28] Speaker 04:
In fact, the claims, except for the fact that they represented a claim one, except for the fact that it recites that it's computer implemented and the computing by a computer step recites a computer, this could all be done by a human.

[00:17:40] Speaker 04:
There's nothing in the claims that inherently requires that a computer be doing it.

[00:17:43] Speaker 04:
So this is just taking a computer and improving the process through the use of the computer, which this court in multiple cases has found is insufficient to establish patent eligibility at either step one or step two of ALIS.

[00:17:58] Speaker 04:
I'd like to briefly turn over, there's two other points that STR made at the beginning and I'd like to address those very briefly.

[00:18:05] Speaker 04:
The first is this idea that the district court and its analysis made this reference to a practical application and that somehow should have

[00:18:13] Speaker 04:
stopped all the analysis and rendered the claims patent eligible.

[00:18:19] Speaker 04:
This court has said on a number of occasions that a practical application is insufficient to establish patent eligibility.

[00:18:27] Speaker 04:
So, for instance, in the Komitsky decision, which we cited in the briefing,

[00:18:30] Speaker 04:
This court said mental processes are not patentable, even if they have a practical application.

[00:18:35] Speaker 04:
And that follows naturally from the Supreme Court's precedents, such as Fluke, where... Well, they cite at least one case, Bascom, right?

[00:18:43] Speaker 00:
What about the case that they cite?

[00:18:44] Speaker 04:
Yes, Your Honor, they cite one case, Bascom.

[00:18:47] Speaker 04:
The court there did not find that the claims were patent eligible merely because they had a practical application.

[00:18:52] Speaker 04:
That citation is to the very conclusion of the opinion where the court makes reference to the fact that there was a practical application.

[00:18:58] Speaker 04:
But the finding of patent eligibility in that case was not based merely on a practical application.

[00:19:05] Speaker 04:
It was based on a step two analysis where this court addressed

[00:19:13] Speaker 04:
the fact that it was inventive where the filtering tool was located.

[00:19:18] Speaker 04:
And here we don't have anything of that nature, that some tool, some physical thing, is located in an inventive location.

[00:19:23] Speaker 01:
I mean, we don't have to follow or give any deference to PTO guidance, correct?

[00:19:29] Speaker 04:
Correct, Your Honor.

[00:19:30] Speaker 04:
The score, I think, in the reading.

[00:19:31] Speaker 01:
To the extent it's confusing and

[00:19:34] Speaker 01:
We don't really understand it.

[00:19:35] Speaker 01:
It seems at times to be at odds with some of our cases.

[00:19:38] Speaker 01:
It's kind of irrelevant, right?

[00:19:40] Speaker 04:
Correct, Your Honor.

[00:19:41] Speaker 04:
This court's opinions control the outcome here.

[00:19:43] Speaker 04:
And this court has clearly stated in the Kaminsky decision that a practical application on its own is not enough.

[00:19:49] Speaker 04:
We think the district court was only commenting on this.

[00:19:51] Speaker 01:
I don't know what that means.

[00:19:51] Speaker 01:
I don't think you stated that right.

[00:19:53] Speaker 01:
A practical application on its own is not enough?

[00:19:55] Speaker 01:
What are you talking about?

[00:19:56] Speaker 01:
A claim to a practical application on its own is not enough?

[00:19:59] Speaker 01:
You mean a claim that is directed to an abstract idea is not enough?

[00:20:04] Speaker 01:
a practical application claim.

[00:20:06] Speaker 01:
There's no law that says a practical application is ineligible.

[00:20:10] Speaker 04:
Yes, Your Honor.

[00:20:11] Speaker 04:
I apologize.

[00:20:11] Speaker 04:
I was perhaps incorrectly paraphrasing the Kominsky decision.

[00:20:15] Speaker 04:
It said mental processes are not patentable, even if they have practical application.

[00:20:19] Speaker 04:
Thank you, Your Honor.

[00:20:21] Speaker 04:
The last thing that my opponent brought up, and I think we've

[00:20:26] Speaker 04:
already addressed this to some extent, but is the idea that the district court should have deferred to the fact-finding of the PTO.

[00:20:35] Speaker 04:
We do not believe that STR did enough in its complaint to even incorporate any of that into the allegations that are here.

[00:20:43] Speaker 04:
But even if those allegations were lifted and put into the complaint, they would not be enough.

[00:20:48] Speaker 04:
So in the International Business Machines decision cited in the briefing,

[00:20:52] Speaker 04:
the court explained that a court is not required to accept conclusory allegations of inventiveness.

[00:20:58] Speaker 04:
And that is all that the examiner provided in his analysis that STR now slides, which is Appendix 430, paragraph 12.

[00:21:06] Speaker 04:
All it merely says is the claims teach both a practical application and significantly more determining that an aircraft landed at an airport based on speed or altitude data during a time when the location of the aircraft is indeterminate.

[00:21:19] Speaker 04:
Alleging that the claim is inventive for that reason which is not enough unless there's any further questions for the court We have support to the firm no, I was trying to say without putting it on the record Anyway go ahead give him rattle time

[00:21:50] Speaker 03:
Thank you, Your Honors.

[00:21:51] Speaker 03:
I just want to make two quick points in response.

[00:21:55] Speaker 03:
First, the claims do not just, they don't claim using different types of data to do something that was already done before.

[00:22:02] Speaker 03:
The problem was that the existing method, the existing data had gaps in it that lost tax revenue.

[00:22:08] Speaker 03:
And so what the patentee did here was that they took this new tool that provided a different kind of data that was not available for this sort of thing before,

[00:22:15] Speaker 03:
and they used it in a way where they took these two elements, speed and altitude, and could then determine from that where airplanes were during these periods of time when in the old data there were gaps.

[00:22:27] Speaker 03:
And so that was a new and useful way of using this new tool in order to improve prior art methods.

[00:22:34] Speaker 03:
Second, and following on to that, the notion that we did not address transponders below before the district court is just not true, we did it repeatedly within our briefing in appendix pages 446, again at 447, again at 448, and again at 449, and then during the hearing, which was joint hearing on the motion to dismiss

[00:22:54] Speaker 03:
and the preliminary injunction.

[00:22:57] Speaker 03:
At appendix 520, there was a discussion between the court and our counsel explicitly talking about this ADSB transponder and why it was new and specialized.

[00:23:06] Speaker 03:
And if there are no further questions, then I'll take my leave of court.

[00:23:10] Speaker 01:
Thank you.

[00:23:11] Speaker 01:
I thank both counsels.

[00:23:12] Speaker 01:
This case is taken under submission.