[00:00:00] Speaker 03:
The final case this morning is No.

[00:00:02] Speaker 03:
24-1729, Cascades Branding Innovation LLC v. Aldean.

[00:00:10] Speaker 03:
Okay, Mr. Flashpart.

[00:00:12] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:16] Speaker 00:
This case is before the Court on appeal from a dismissal under Rule 12b6 with prejudice of an unamended complaint for patent infringement.

[00:00:26] Speaker 00:
The district court below failed to do a proper analysis of patent eligibility under Alice, did not hold defendant Aldi to the clear and convincing burden it had to carry on its motion, and rather shifted the burden on the motion to dismiss to the plaintiff, and then finally declined to permit Cascades to even attempt to amend the complaint.

[00:00:48] Speaker 00:
The single most telling indication of all these in the court's failure to perform a proper analysis of patent eligibility under ALIS is the articulation of the abstract idea used during the step one analysis.

[00:01:01] Speaker 00:
This articulation was wildly overbroad, led to an incorrect conclusion at step one, and was not balanced in any way by a sliding scale analysis of the claim terms in step two.

[00:01:13] Speaker 05:
You talk a lot about this sliding scale as a well-settled legal framework.

[00:01:18] Speaker 05:
I don't think you cited any cases for it.

[00:01:20] Speaker 05:
Can you help me out?

[00:01:21] Speaker 00:
We cited CosmoKey, your honor.

[00:01:23] Speaker 00:
CosmoKey v Duo Security, that's 15F4 1091.

[00:01:28] Speaker 00:
That's our authority for the sliding scale.

[00:01:31] Speaker 00:
Thank you.

[00:01:32] Speaker 00:
Sure.

[00:01:35] Speaker 00:
Judge Maldonado's articulation of the abstract idea was collecting and displaying information about a device location and nearby businesses selling a particular branded service.

[00:01:45] Speaker 00:
That's at appendix 19.

[00:01:47] Speaker 00:
Aldi's is even broader, referring to collecting and displaying geographical information.

[00:01:54] Speaker 00:
That's at appendix 176.

[00:01:55] Speaker 00:
It relies on this same articulation before this court, Aldi does.

[00:01:59] Speaker 00:
It uses that articulation in their response, the red brief, at 3, 7, 8, and 11, among other locations.

[00:02:07] Speaker 00:
Both of these articulations of the abstract idea are incredibly wide in scope and capture whole categories of collection and display technology not encompassed by the claims of the gold patents.

[00:02:19] Speaker 00:
These articulations are so broad as to preclude any innovation or patenting in the space of display of geographic information.

[00:02:27] Speaker 00:
And were the claims so broad, were they actually that broad, preemption and capture of an abstract idea would be a legitimate concern in this case.

[00:02:34] Speaker 00:
That would be very real.

[00:02:36] Speaker 00:
But they are not.

[00:02:37] Speaker 00:
And their lack is telling in a proper analysis under Alice.

[00:02:41] Speaker 00:
Instead, these claims call for a much narrower scope and a clear improvement over existing technology in the space of mapping using a concrete device to implement the improved process.

[00:02:54] Speaker 00:
Claim one of the 395 patent, that's our proxy claim in this case, calls for the predicate elements of displaying using a device a first image associated with the first brand and receiving from a user of the device an indication of selection by the user of the first image.

[00:03:12] Speaker 00:
Then, and only once the brand image has been selected does the claim describe the mapping process.

[00:03:18] Speaker 00:
That process includes identifying the location of the device independently of any location specifying input provided by the user, and then providing to the user using the device a first map image.

[00:03:31] Speaker 00:
As described further in the claim, this map image displays to the user, without further location identifying input, a map image showing nearby locations where those branded services or goods associated with that image selected brand are located.

[00:03:45] Speaker 00:
In short,

[00:03:47] Speaker 00:
The user selection of the brand image triggers a mapping process, which results eventually without location, specifying input by the user in display of a map showing nearby locations of the brand.

[00:03:58] Speaker 00:
Uniquely in this case, this was identified by the patentee in the specification as an improvement over existing display technologies.

[00:04:06] Speaker 00:
That was identified in our brief at page 20, and in the appendix, in the specification, appendix 40 comes 14 lines one through 22.

[00:04:17] Speaker 00:
And the patentee specifically identified the flawed systems over which this was an improvement.

[00:04:21] Speaker 00:
He laid them out, and that they did not include this advance.

[00:04:25] Speaker 00:
That's in appendix 34, column 1, lines 12 to 53, and same page in our brief.

[00:04:32] Speaker 00:
This is different from any other case in which a finding was made that the subject matter of the claims was patent-ineligible.

[00:04:41] Speaker 00:
It seems to me the facts of this case are

[00:04:46] Speaker 02:
Pretty similar to the facts in the electric power versus Alstrom case.

[00:04:52] Speaker 02:
Tell me why I'm wrong.

[00:04:59] Speaker 00:
Let me.

[00:05:00] Speaker 00:
That's a great question, Your Honor.

[00:05:05] Speaker 00:
Electric power deals with, and I'm going to make sure I've got the right technology.

[00:05:10] Speaker 00:
There's so many of the.

[00:05:12] Speaker 01:
I made that case talked about.

[00:05:14] Speaker 01:
You know, collecting, analyzing, displaying data about an interconnected power grid.

[00:05:23] Speaker 01:
But the court said these are just abstract ideas of gathering, analyzing, and displaying in that context.

[00:05:32] Speaker 02:
And here you have the general ideas of displaying, receiving, identifying a location.

[00:05:41] Speaker 02:
There's nothing in the claim that explains how this is accomplished or the workings of a computer or the workings of a circuit that would accomplish this general idea.

[00:05:57] Speaker 02:
And isn't that a problem under our current

[00:06:04] Speaker 00:
I'm going to take those in order.

[00:06:08] Speaker 00:
I'm going to start with the electric power.

[00:06:10] Speaker 00:
I'll say that this case, Your Honor, is very different from the electrical power group under step one, because here we have, as I just alluded to, the inventor in the specification

[00:06:21] Speaker 00:
listing out the specific library of prior technologies that needed speed and ease of use improvement.

[00:06:27] Speaker 00:
He identified, he said, these are the three versions of showing a map and how we get there that this is going to be better than.

[00:06:35] Speaker 00:
That's absolutely missing in electric power group.

[00:06:38] Speaker 02:
Here we also have an undisputed- Those things are not in the claim, right?

[00:06:43] Speaker 00:
The identification of the prior art?

[00:06:46] Speaker 00:
No, that's not in the claim, Your Honor.

[00:06:48] Speaker 00:
That's in the specification.

[00:06:49] Speaker 00:
We're saying, here's the problem.

[00:06:51] Speaker 00:
Here's the technological problem, which we are going to offer a technological solution for.

[00:06:56] Speaker 02:
But what I'm getting at is the claim, you know, it's a broad statement of the functioning of this method.

[00:07:05] Speaker 02:
But there's no explanation that I found in the claim as to how it's accomplished.

[00:07:10] Speaker 00:
I think it's narrower.

[00:07:12] Speaker 00:
than that breadth that your honor is alluding to.

[00:07:15] Speaker 00:
Because the claim is saying, hey, this is a process that we understand the steps of how to do.

[00:07:20] Speaker 00:
And here are the prior art pieces that exist that we can use to do these steps.

[00:07:26] Speaker 00:
And here is a novel way in which to do that, which is to say, first, we have an entire mapping process that is initiated, commenced, using the selection of a brand

[00:07:39] Speaker 00:
branded image, right?

[00:07:40] Speaker 00:
That is nowhere in any prior art, that's nowhere in anything, nor was it well understood by others to be done, right?

[00:07:47] Speaker 00:
You see that completely absent from any of the prior art.

[00:07:49] Speaker 02:
But why isn't that just an abstract idea?

[00:07:53] Speaker 02:
Let's use a logo instead of just a button that says A.

[00:08:00] Speaker 00:
Why is that not inevitable?

[00:08:01] Speaker 00:
Because in the context of the display technology, it's very concrete.

[00:08:05] Speaker 00:
You're looking at a brand, or a branded item, and you're using that to begin the process.

[00:08:12] Speaker 00:
That is, in this art, a concrete selection.

[00:08:17] Speaker 00:
You have to have the physical device.

[00:08:20] Speaker 00:
You have to have it with you.

[00:08:21] Speaker 00:
Some of these other features that come into later play in the elements require the existence of a physical device, because if you don't have a physical device,

[00:08:28] Speaker 00:
your location cannot be determined because you have nothing to determine it with.

[00:08:33] Speaker 02:
This is why this whole abstract idea prong of the test is so difficult because it's almost like we're arguing in the abstract.

[00:08:50] Speaker 02:
There are just very few definitive markers along the way that guide the analysis as to whether this is really patent eligible or not.

[00:09:05] Speaker 02:
But that's the problem we're stuck with.

[00:09:07] Speaker 02:
We have to apply the abstract idea test, and we've got case after case after case that

[00:09:17] Speaker 02:
says that if all you're doing is expressing ideas that are well known and recognized, like gathering, displaying, receiving, these are just abstract ideas until you set forth some structural application or some specific way of doing it that might take it out of the realm of being abstract.

[00:09:47] Speaker 00:
I think your honor has put his finger on exactly the problem with zooming out as far as Aldi and the court have here when they start to describe the abstract idea.

[00:09:59] Speaker 00:
When you get down to saying the abstract idea is gathering and displaying information, you are eliminating an entire category of useful inventions in the

[00:10:11] Speaker 00:
in any computer art, because at its heart, any computer art invention can be described as gathering information and displaying information, right?

[00:10:21] Speaker 00:
That's all you do.

[00:10:22] Speaker 00:
When someone types on the keyboard, the computer gathers information from them.

[00:10:25] Speaker 00:
When they get inputs, it gathers information, and then eventually that information is displayed.

[00:10:29] Speaker 00:
So when you draw the abstract idea this big, you run into the problem of now you have to incorporate all of

[00:10:37] Speaker 00:
the unarticulated, as that great idea, that wide idea, not great, I beg great, I simply mean large, that large idea, all those separate factors come into play at step two, right, which is where... I think that sometimes a clue to whether at step one we have an abstract claim is whether you can articulate a sort of brick and

[00:11:01] Speaker 05:
And here, of course, they talk about the shopping mall visitor looking at a map.

[00:11:06] Speaker 05:
And you respond to that, and I just don't fully understand your distinction, so maybe you can help me with it.

[00:11:11] Speaker 05:
You respond in a great brief attempt that their analogy ignores the limitation of starting the process with the selection of a brand identifying image and indeed ignores the concept of locating a particular brand entirely as stationary mall maps show locations for all brands.

[00:11:29] Speaker 05:
I'm not sure how that's responsive to their argument.

[00:11:32] Speaker 00:
Sure.

[00:11:33] Speaker 00:
Let's compare, and I see I'm into my rebuttal time, but I want to answer your honest question.

[00:11:37] Speaker 00:
Let's compare the mall map with the technology in the claim.

[00:11:42] Speaker 00:
I step up to a mall map.

[00:11:43] Speaker 00:
The mall map knows where I am because the mall map is fixed in location.

[00:11:47] Speaker 00:
So there's no need for a determination of the location of the user.

[00:11:50] Speaker 00:
The mall map is sitting there.

[00:11:52] Speaker 00:
I now look at the mall map, and the mall map shows me every store in the mall.

[00:11:57] Speaker 00:
Not only the Starbucks's, not only the Burger King's, not only pick your brand.

[00:12:03] Speaker 00:
So when I contrast that, and by the way, if I move throughout the mall, the map isn't going to change.

[00:12:10] Speaker 00:
Like let's say I pick up a copy of that map, or I take a picture of it and use that.

[00:12:13] Speaker 00:
That map isn't going to change based on where I am in the mall.

[00:12:17] Speaker 05:
It's going to have no- I think I understand, but aren't all those distinctions just basically inherent

[00:12:25] Speaker 05:
and if that's all you've invented, we know it's not patentable.

[00:12:28] Speaker 00:
Well, the mall map on the computer is very different because let's say I bring up the mall map on the computer.

[00:12:33] Speaker 00:
That, again, I don't commence, I just bring up the map in whatever manner that I do.

[00:12:39] Speaker 00:
I don't commence the process by selecting a brand via a branded associated image.

[00:12:44] Speaker 00:
Once I do that, now that map that the invention shows me does not contain all stores.

[00:12:50] Speaker 00:
It contains only branded stores.

[00:12:52] Speaker 00:
That's an advantage to the person.

[00:12:54] Speaker 00:
both the person who's looking for the brand and it's an advantage to the brand if they're providing you, in the case of the infringement in these cases, an app where only their branded locations are shown.

[00:13:06] Speaker 00:
So the difference there is partly that and also that you simply cannot locate the user without the rest of the technology.

[00:13:17] Speaker 00:
No, no problem at all.

[00:13:18] Speaker 00:
I still have two minutes left, so I'll see you guys again.

[00:13:29] Speaker 04:
Good morning, Your Honors, and it may please the Court.

[00:13:31] Speaker 04:
I'm Robert Lee, counsel for Appellee Aldy.

[00:13:34] Speaker 04:
The district court properly found all claims of the three asserted patents ineligible under 101, and that decision should be affirmed.

[00:13:43] Speaker 04:
Looking at step one of the analysis, looking at a representative claim, claim one of the 395 patent, it is plainly directed to the abstract idea of collecting and displaying geographic information.

[00:13:56] Speaker 04:
of nearby business locations and displaying those to the user.

[00:13:59] Speaker 04:
I don't think we're overgeneralizing yet.

[00:14:01] Speaker 04:
I think both the district court and we in our papers properly characterized the scope of what this method reports to cover.

[00:14:11] Speaker 04:
Looking at the Vitero decision, the Vitero v. Draft King's 104F4 1350, the court talks about well-settled indicators of abstractness and goes through the litany of the court's cases in this space.

[00:14:25] Speaker 04:
And first, again, we've got plain language using very broad functional terms, displaying, receiving, identifying, providing.

[00:14:35] Speaker 04:
And those results-focused terms have no language conveying any sort of specificity as to why that displaying, providing, collecting type of steps are compelled to any sort of general technology or even specific technology.

[00:14:54] Speaker 04:
So claims that this Court has recognized that claims of this functional drafting are almost always found to be patent eligible.

[00:15:01] Speaker 04:
And as the Court, Judge Lynn noted, you know, you have the electric power case, you have the tarot, you have Sanderling, Affinity Labs, the Move real estate, the real estate alliance case.

[00:15:12] Speaker 04:
There's a litany of cases about using

[00:15:16] Speaker 04:
geographic information, collecting geographic information, and displaying it to a user in different formats in broad functional language to be abstract.

[00:15:25] Speaker 04:
So here we have an abstract claim.

[00:15:29] Speaker 04:
Now looking to step two, is there any sort of inventive concept that changes this?

[00:15:35] Speaker 04:
And we submit there is not.

[00:15:37] Speaker 04:
Because again, we've got you have to find something that's more than being well understood, routine, or conventional activity.

[00:15:45] Speaker 04:
Again, there is no discussion within the claim language of any sort of functionality to enable this process.

[00:15:53] Speaker 04:
The patent specification talks about generic hardware used in general computing purposes.

[00:16:00] Speaker 04:
Looking at appendix page 35, it's the specification for the 395 patent.

[00:16:06] Speaker 04:
Column 4

[00:16:08] Speaker 04:
lines 32 through 51, it talks about the device used for this process.

[00:16:14] Speaker 04:
May, for example, be a mobile phone, a wireless communication device, a PDA, a computer, a laptop.

[00:16:21] Speaker 04:
The display is an electronic display or an output means of a type commonly found on mobile phones or small portable computing devices.

[00:16:30] Speaker 04:
going to appendix page 37, column 7 of the specification.

[00:16:34] Speaker 04:
Location means, as any mechanism, process or means that enables identification of the device's location.

[00:16:40] Speaker 04:
It goes on to talk about GPS or satellite functionality.

[00:16:46] Speaker 04:
Cascades does not, in the specification at all, suggest any of this conventional equipment is used in any

[00:16:52] Speaker 04:
unconventional way.

[00:16:53] Speaker 04:
It's simply using conventional off-the-shelf computer components to practice this process.

[00:17:01] Speaker 04:
Now what we did hear about is this use of a brand image.

[00:17:04] Speaker 04:
That's new, this idea of a brand image to start the process, and that's different than anything anybody's ever considered before in their lives.

[00:17:13] Speaker 04:
As Judge Lynn noted, what is a brand image other than a logo?

[00:17:16] Speaker 04:
It's a trademark.

[00:17:17] Speaker 04:
patent specification, this is appendix page 30, which shows figures 1A and 1B of the specification, shows a Nike Swoosh, the McDonald's Golden Arches, the Coca-Cola bottle with the name Coca-Cola on it, and that's a brand image.

[00:17:32] Speaker 04:
But brand owners have been using their own brand images to identify their businesses and provide some indication of location for decades, if not hundreds of years.

[00:17:45] Speaker 04:
So it's not surprising

[00:17:47] Speaker 04:
that you would use a brand image to associate a location with the brand, because that's what the brand owners themselves do.

[00:17:56] Speaker 05:
I saw the gray brief on the first page.

[00:17:58] Speaker 05:
Maybe the very first point suggests you waived the ability to make this argument you're making now about the novelty and the importance of starting with a brand image, because you didn't address it in the red brief.

[00:18:10] Speaker 05:
What is your response to that?

[00:18:11] Speaker 04:
Yes, Your Honor.

[00:18:12] Speaker 04:
Two points.

[00:18:16] Speaker 04:
Cascade's argument is this idea that, well, it starts with this process of the user deciding that's going to be how they search.

[00:18:23] Speaker 04:
The claim reads, the device that shows it.

[00:18:25] Speaker 04:
So there is no user thought process.

[00:18:28] Speaker 04:
So that wasn't an argument that I think was presented directly in the opening brief.

[00:18:35] Speaker 04:
I think counsel

[00:18:37] Speaker 04:
belabored this argument in the reply brief, but it wasn't an argument that was carried in the principal brief as something that is the transformative element that transformed this abstract claim into somehow a non-abstract claim.

[00:18:54] Speaker 04:
So I don't think we waived it, Your Honor.

[00:18:56] Speaker 04:
Again, because I think this is something that was highlighted.

[00:19:00] Speaker 04:
I mean, they picked something that we didn't address.

[00:19:03] Speaker 04:
ad nauseam to address ad nauseam so they could make this argument.

[00:19:06] Speaker 04:
But I don't think we advocated our argument.

[00:19:09] Speaker 05:
What about this supposed sliding scale from Cosmo Key?

[00:19:13] Speaker 05:
You also didn't address that.

[00:19:14] Speaker 04:
I did not, Your Honor, because I don't think that is a binding, relevant analysis that applies in this case.

[00:19:21] Speaker 04:
I think we've got Patero.

[00:19:23] Speaker 04:
We've got Sandeling.

[00:19:24] Speaker 04:
We've got Move.

[00:19:25] Speaker 04:
We've got a whole bunch of other cases that this court recognizes abstract claims for what they are being abstract.

[00:19:33] Speaker 04:
looking at the transformative nature of them or lack of transformation when, again, you've got the supposed transformative issue itself just being doubling down on the abstract idea to the abstract claim.

[00:19:46] Speaker 04:
So I don't think there is a sliding scale argument or test that somehow applies here specifically, given this court's extensive authority.

[00:19:59] Speaker 05:
Wouldn't it have?

[00:20:00] Speaker 05:
been better to give them a chance to file an amended complaint.

[00:20:05] Speaker 05:
They make a number of allegations about novelty, more particularly, I guess, non-routine, non-conventional, not well-understood, for lack of a better word.

[00:20:20] Speaker 05:
Wasn't the district court pretty abrupt in concluding that it would have been futile to even have a chance to amend?

[00:20:26] Speaker 04:
I think the district court was quick to that, but I don't think it was abrupt or unfounded.

[00:20:30] Speaker 04:
I mean, the claim language speaks for itself as this court has routinely upheld district courts in similar situations.

[00:20:37] Speaker 04:
As the court noted in Sandling, no amendment to a complaint can alter the patent itself states.

[00:20:43] Speaker 04:
The court looked at the claim language, looked at its abstractness, looked at the specification and the fact that it, I believe, and I no believe it says in the court's order, found

[00:20:55] Speaker 04:
all of the common components used in their common conventional ways and said, what else is left?

[00:21:01] Speaker 04:
If they wanted to cite more evidence from the specification, they certainly could.

[00:21:06] Speaker 04:
It was in the record.

[00:21:07] Speaker 04:
It was in the record before this court.

[00:21:09] Speaker 04:
They didn't cite anything.

[00:21:10] Speaker 04:
They've raised this issue of extrinsic evidence, but I'm not sure what relevant extrinsic evidence would be to a clear abstractness issue on the face of the patent.

[00:21:21] Speaker 04:
And so without articulating how or why or what aspect of the claim language all of this evidence would come into support and how that would change anything, I don't think that they've been deprived of an opportunity.

[00:21:34] Speaker 04:
I think the court saw that as candidly for the Hail Mary it was and decided it was unnecessary.

[00:21:42] Speaker 04:
If there's no further questions, I'll cede the remainder of my time.

[00:22:00] Speaker 03:
Would you concede that it has been conventional for a long, long time to have brand maps store locations of a particular brand?

[00:22:09] Speaker 00:
You mean like a physical map?

[00:22:11] Speaker 00:
Yes, I would concede that, Your Honor.

[00:22:14] Speaker 00:
Absolutely.

[00:22:15] Speaker 00:
You go to shelving, we do maps, here's all the shelves, right?

[00:22:18] Speaker 00:
Driving around, you pull it out of your glove box and take a look.

[00:22:21] Speaker 00:
Those exist.

[00:22:22] Speaker 00:
They predate computers, I'm fairly certain.

[00:22:25] Speaker 00:
I can't testify from personal experience.

[00:22:28] Speaker 00:
I'll address only a few quick points because I don't have much time.

[00:22:33] Speaker 00:
I would say that the extrinsic evidence in this case that we would offer on a amended complaint would go specifically to the preemption issue because preemption obviously is one of the key, we talk a lot about it, is one of the key issues in any Alice analysis, right, is are we preempting

[00:22:49] Speaker 00:
the basic building blocks of technology.

[00:22:51] Speaker 00:
If you look at these claims in their detail, there is no way that we are preempting the basic building blocks of technology.

[00:22:58] Speaker 00:
During the licensing campaign on this portfolio, we have been shown multiple non-infringing alternatives that still achieve exactly the same objectives.

[00:23:08] Speaker 00:
of collecting and displaying geographic information.

[00:23:11] Speaker 00:
For example, someone who collects a location by asking you to give your zip code, someone who says type in your address instead of doing it without user specifying input.

[00:23:22] Speaker 00:
We've seen versions where they show a list of locations instead of a map.

[00:23:27] Speaker 00:
All of those are variants of this that would be captured by the very broad abstract ideas articulated by the court and all these.

[00:23:34] Speaker 00:
the opportunity to address those in an amended complaint I think would be absolutely appropriate.

[00:23:40] Speaker 00:
We list all of those in our final brief.

[00:23:43] Speaker 00:
I'll conclude very briefly to simply say this.

[00:23:46] Speaker 00:
The how that makes this

[00:23:51] Speaker 00:
narrow enough to be subject matter eligible is that selection of the brand image.

[00:23:56] Speaker 00:
That is the piece of this that says, hey, here's a very narrow advance over existing technology in this area, not a sweeping broad abstract idea.

[00:24:06] Speaker 00:
It's a specific idea.

[00:24:08] Speaker 00:
And the fact that, I'll draw your attention to a recent case, Your Honors, which I think I flipped the,

[00:24:18] Speaker 00:
which is just two weeks ago, this court ruled in Power Block Holdings, Inc., the IFIT, Inc., and I've got the Lexis site, which is 2025, the US App Lexis, 20229, and 2025 Westlaw, 2301853.

[00:24:30] Speaker 00:
That you cannot use the fact that limitations were in the prior art to find abstractness at step one.

[00:24:39] Speaker 00:
That is very applicable here, especially in light of the arguments made by my learned friend.

[00:24:44] Speaker 00:
And with that, Your Honors, I'll thank you for your attention today.

[00:24:47] Speaker 03:
Okay, thank you.

[00:24:47] Speaker 03:
Thank both counsel, the cases.