[00:00:00] Speaker 03:
Our next case for argument today is 24-1147, direct packet research versus polycom.

[00:00:09] Speaker 03:
Mr. Ross, please proceed.

[00:00:11] Speaker 02:
Good morning, Your Honor.

[00:00:12] Speaker 02:
Good morning, panel.

[00:00:14] Speaker 02:
Mr. Ross, for the appellant, direct packet research, which is also the owner of the 588 patent, which is the patent that issued here today.

[00:00:22] Speaker 02:
As the court knows, the district court held below that the 588 PAC was not PAC eligible because it is directed to, quote, the abstract idea of language translation.

[00:00:34] Speaker 02:
The district court reached that wrong conclusion because it misapplied this court's teachings under Alice.

[00:00:41] Speaker 02:
In approaching the directed to inquiry at step one of Alice,

[00:00:46] Speaker 02:
This court has repeatedly says, you've got to ask, quote, what does the patent assert is the focus of the claimed advance over the prior arc?

[00:00:55] Speaker 02:
And if the answer to that question lies in the realm of computer technology as it does here, then this court suggests that you really have to ask another question, which is whether the advance is so specifically described as not to merely claim a functional result.

[00:01:10] Speaker 02:
And so let me start with the first question, which is, what is the focus of the 588 patent?

[00:01:14] Speaker 02:
And I think that's crystal clear.

[00:01:15] Speaker 02:
It says so on the face of the patent, that this is about solving the interoperability problem that exists in video conferencing.

[00:01:23] Speaker 02:
It says that right at the bottom of the first column, column one, lines 54 to 61.

[00:01:28] Speaker 01:
So isn't that just a way of saying the patent relates to translation, putting a data stream in one protocol into a different protocol.

[00:01:37] Speaker 01:
Why is that in advance?

[00:01:39] Speaker 02:
So because this does not involve data translation, data conversion, whatever terminology you want to use.

[00:01:44] Speaker 02:
This involves the incompatibility, involves the communication protocols.

[00:01:48] Speaker 02:
Communication protocols are machine directed commands, sometimes called signaling commands, signaling protocols.

[00:01:56] Speaker 02:
They have nothing to do with language.

[00:01:58] Speaker 02:
They have nothing to do with data conversion.

[00:02:00] Speaker 02:
It's simply a very detailed instruction to a device to perform a function.

[00:02:06] Speaker 02:
That's all it is.

[00:02:07] Speaker 02:
The patent's clear in its face on that.

[00:02:09] Speaker 02:
That is wholly different from any sort of human language translation.

[00:02:12] Speaker 02:
In particular, your honor, in this patent, we don't teach any sort of one-for-one conversion.

[00:02:18] Speaker 02:
or to use the language you use in the court, use one-for-one translation.

[00:02:22] Speaker 02:
We interpose a new, simpler, more efficient intermediate protocol.

[00:02:28] Speaker 01:
So let's stop there, because you say that in the briefing a lot, that it's a new, simpler protocol.

[00:02:34] Speaker 01:
The claims don't require a simpler protocol, correct?

[00:02:37] Speaker 01:
There's nothing in the claim that requires the protocol to be simpler.

[00:02:40] Speaker 02:
That is one embodiment you're correct.

[00:02:43] Speaker 02:
However, a person of skill in the art would look at the step in claim one, where it says converting said first protocol, which is signaling protocol, into an intermediate protocol.

[00:02:54] Speaker 02:
And then, as this court said in tech tech, you don't stop at the language of patent.

[00:02:58] Speaker 02:
You look at how that language is informed by specifications.

[00:03:01] Speaker 02:
That's critical to 101.

[00:03:03] Speaker 02:
You go back into the specifications, and 101 says,

[00:03:07] Speaker 02:
that this intermediate protocol will be a simpler, more efficient protocol.

[00:03:11] Speaker 01:
Well, the patent actually says, doesn't it, that you're going to go through and do a line-by-line conversion.

[00:03:21] Speaker 01:
And that line-by-line conversion is essentially wrapping the data in the previous protocol with a wrapper for the new protocol.

[00:03:32] Speaker 01:
Correct, for the intermediate protocol, but your honor, if you look at column... And just before we leave that point, just one thing I want to make clear is the patent talks about the conversion being more efficient because you're using messages from either protocol, but it never talks about the transmitting the data as being more efficient.

[00:03:55] Speaker 02:
So if I may first finish up the first inquiry, which is you look at column three at lines 44, 45, 46, it says the translation into the interim or intermediate communication protocol simplifies the protocol signals into their common elements.

[00:04:14] Speaker 02:
So the mere act of transforming them into their common elements affects the simplification.

[00:04:19] Speaker 02:
This is easy.

[00:04:20] Speaker 02:
Simplification for translation.

[00:04:23] Speaker 02:
A simplification, it doesn't say for translation.

[00:04:26] Speaker 02:
However, a person of skill in the art would understand that this is a multimedia communication over the internet and that time is critical.

[00:04:33] Speaker 02:
This is a real-time transmission.

[00:04:35] Speaker 04:
But do you agree that claim one does not require real-time exchange of multimedia communication?

[00:04:41] Speaker 02:
No, I believe it does require that.

[00:04:44] Speaker 02:
And I would say that a person of skill in the art would say that it requires... But where is that?

[00:04:49] Speaker 04:
What language in the claim itself?

[00:04:51] Speaker 04:
pits that requirement forth?

[00:04:52] Speaker 04:
Because it sounds like that's what you're arguing for, but can you point me to claim language that you think makes sense today?

[00:04:56] Speaker 02:
So, sure.

[00:04:57] Speaker 02:
The usage in the preamble of a multimedia data stream would be understood as, by person of skill in the art, a hop that your honor looks like.

[00:05:07] Speaker 02:
It's column seven, line 26, a method for multimedia communication.

[00:05:15] Speaker 02:
A person of skill in the art would understand that it requires real time.

[00:05:19] Speaker 04:
You didn't have the district court do any claim construction to get that construction that you're proposing.

[00:05:25] Speaker 02:
No, there's no claim construction required.

[00:05:26] Speaker 02:
Paragraph 15 of our complaint, which must be accepted as true on a motion for 12C, states that it has to be conducted in real time.

[00:05:34] Speaker 02:
So that's a factual issue that cannot be disputed against us.

[00:05:39] Speaker 04:
But wait a second.

[00:05:40] Speaker 04:
Hold on.

[00:05:40] Speaker 04:
Can we also take the temperature down a little bit?

[00:05:42] Speaker 04:
I feel like we're in the back.

[00:05:44] Speaker 02:
Oh, I'm sorry, Your Honor.

[00:05:45] Speaker 02:
We were enthusiastically discussing it.

[00:05:47] Speaker 02:
I'm enthusiastic, too.

[00:05:49] Speaker 02:
I love this kind of communication technology.

[00:05:51] Speaker 02:
And so I love it when a court actually wants to engage in a meaningful way.

[00:05:56] Speaker 04:
We like to engage meaningfully.

[00:05:57] Speaker 04:
I think I could speak for all of us on the panel in that regard.

[00:06:01] Speaker 04:
What I was getting back to is I think that you did not specifically get a claim construction that has that preamble as being interpreted as requiring real-time exchange of information.

[00:06:12] Speaker 02:
Oh, I hear what you're saying, Your Honor.

[00:06:13] Speaker 02:
And our position is plain, ordinary meaning, as interpreted by persons of skill in the art.

[00:06:17] Speaker 02:
This court itself, in the DDR case, which we cited, Judge Chanin, I believe, says that one of the characteristics of transmission over the internet is the instantaneous transportation, and that that makes it different from the real world.

[00:06:30] Speaker 02:
Which is...

[00:06:31] Speaker 02:
which is absolutely true, but in the patent, we say that at column 1, lines 28 to 30, column 5, lines 18 to 24, the complaint, paragraphs 15 to 16.

[00:06:43] Speaker 02:
These all have to be accepted.

[00:06:45] Speaker 02:
In the TechSec case, this court says, how do we decide 101?

[00:06:49] Speaker 02:
We look at the language of the patent as a whole, all of the elements, as informed by the specification.

[00:06:53] Speaker 03:
No, we don't look at the language of the patent as a whole.

[00:06:55] Speaker 03:
We look at the language of the claim.

[00:06:57] Speaker 02:
Correct, Your Honor.

[00:06:57] Speaker 02:
Well, language of the claim is a whole.

[00:06:59] Speaker 03:
You're pointing us to all this specification language.

[00:07:01] Speaker 03:
And you would like us, I feel like you're asking us, to read a lot of limitations into the claim.

[00:07:08] Speaker 03:
Where in the claim are these limitations grounded in the language of the claim?

[00:07:13] Speaker 02:
Yes, Your Honor.

[00:07:13] Speaker 02:
So in claim one, it says converting said Frosch protocol into an intermediate protocol.

[00:07:21] Speaker 02:
We then look at how converting is used in the specifications.

[00:07:26] Speaker 02:
And in every place where it is used, it describes an intermediate proof protocol comprised of the common functionalities or elements of the two non-interoperable.

[00:07:38] Speaker 02:
And that's at column 2, lines 10 through 15.

[00:07:42] Speaker 03:
Are you, but stop.

[00:07:44] Speaker 03:
The word converting.

[00:07:45] Speaker 03:
is has a broad meaning.

[00:07:48] Speaker 03:
Are you saying that the patentee acted as his own lexicographer to say you can only convert in a particular way in this patent and if so where is the clear and unmistakable

[00:08:02] Speaker 03:
definitional language, not examples in the spec because the word converting you chose to claim broadly.

[00:08:09] Speaker 03:
You may give examples in the spec which are much narrower.

[00:08:12] Speaker 03:
If you want me to read the word converting as being way narrower than its broad meaning you have to show me where the patentee made clear that it was given it that narrow meaning in the spec.

[00:08:24] Speaker 02:
So our argument would be the person with an ordinary skill in the art would understand the plain ordinary meaning of converting by looking at the specifications.

[00:08:34] Speaker 02:
And that informs what that word converting mean.

[00:08:37] Speaker 02:
I don't know if that makes us a real lexicographer or not.

[00:08:40] Speaker 03:
If your honor is suggesting that that makes... Where is the language in the spec that you think defines the word converting in this way that draws in

[00:08:52] Speaker 03:
these other limitations.

[00:08:53] Speaker 02:
Yes, Your Honor.

[00:08:54] Speaker 02:
It would be column 2, lines 10 through 15, again at column 3, lines 33 to 33.

[00:09:00] Speaker 03:
So 10 through 15 says the intermediate protocol may be created to reflect the commonalities between the various communication protocols that are expected within the system.

[00:09:13] Speaker 03:
The multimedia data stream in this communication

[00:09:17] Speaker 03:
in this intermediate protocol is then transmitted.

[00:09:19] Speaker 03:
So I don't understand.

[00:09:21] Speaker 03:
What about that is it you're going to say informs my understanding of what the word converting first protocol into an intermediate protocol means?

[00:09:29] Speaker 02:
Well, it would also be column 3, lines 33 through 37.

[00:09:33] Speaker 03:
Well, you can't say also if you haven't shown me anything about column 2.

[00:09:37] Speaker 03:
Also would imply here's some meat and here's also some potatoes, right?

[00:09:42] Speaker 03:
also implies there's something else, but you haven't shown me anything about column 2 that adds definitionally to the converted line.

[00:09:51] Speaker 02:
There's nothing I can add other than the words there, so we should move to column 3 at lines 33 to 37 where it says that the text pays protocol and converts it line by line into an interim protocol that comprises the common functions and elements of the different protocols.

[00:10:10] Speaker 02:
I don't think that could be any more clear, Your Honor.

[00:10:13] Speaker 03:
You don't think what could be any more clear.

[00:10:15] Speaker 03:
So this is a description of how the conversion process works No, this is a description of what's shown in figure 1 a correct a detailed description of the invention and so what What about this language?

[00:10:32] Speaker 03:
Do you think is?

[00:10:34] Speaker 03:
imported into the claim

[00:10:37] Speaker 02:
Well, it describes how it's converted.

[00:10:39] Speaker 02:
It's converted in a line by line into an interim protocol that comprises the common functions and elements of the different protocols.

[00:10:47] Speaker 03:
And you think that the broad claim that says converting a first protocol into an intermediate protocol now requires line by line conversion?

[00:10:57] Speaker 02:
I think that's one embodiment, as suggested by the previous citation.

[00:11:00] Speaker 03:
Right, one embodiment, but that's not

[00:11:04] Speaker 03:
what the claim covers, the claim covers way more than that.

[00:11:06] Speaker 03:
It could cover lots of other kinds of embodiments too, right?

[00:11:09] Speaker 02:
Well, if Your Honor is suggesting that it is going to focus on converting and saying that that's what this patent is directed to, then under step two, we would look, as you described in your Berkheimer decision, we'd look at the dependent claims.

[00:11:23] Speaker 03:
None of these are mine.

[00:11:24] Speaker 03:
None of them are Judge Chen's.

[00:11:25] Speaker 03:
These are decisions on behalf of the court.

[00:11:26] Speaker 02:
On behalf of the court, we'd look at dependent claims 6, 16, and 23, all of which describe specifically in the claims.

[00:11:38] Speaker 02:
those terms.

[00:11:38] Speaker 02:
And I think those are inventive concepts here that add on to the patent.

[00:11:45] Speaker 04:
So you took us to the dependent claims.

[00:11:47] Speaker 04:
I thought you had an argument potentially about being concerned about just focused on claim one.

[00:11:52] Speaker 04:
But to be clear, you never separately argued in terms of

[00:11:58] Speaker 04:
why it would pass the 101 filter, so to speak, for the dependent claims versus just the independent claims, right?

[00:12:06] Speaker 02:
No, we did.

[00:12:07] Speaker 02:
The dependent claims would only be used at step two, so you look at the step two argument about the briefs below and the brief here.

[00:12:14] Speaker 02:
The dependent, Burkheimer just lays this out very nicely.

[00:12:17] Speaker 02:
In Burkheimer, they found that step one was directed to an abstract idea.

[00:12:22] Speaker 02:
So you shift to step two to look for some added inventive concept.

[00:12:26] Speaker 02:
And it found it there.

[00:12:28] Speaker 02:
Here, that added inventive concept, if you disagree with my interpretation of conversion.

[00:12:32] Speaker 04:
Can you point us to a site in the record where you argue before the district court separately on the dependent claims versus the independent claims?

[00:12:39] Speaker 02:
Yes, Your Honor.

[00:12:48] Speaker 02:
At appendix page 00802, we argued, and I'm quoting here, simplifying the protocol signals contained in the multimedia data stream into their common elements was a key innovation in the 588 patent.

[00:13:10] Speaker 02:
The court actually, and we pointed,

[00:13:13] Speaker 02:
at a separate place to Dependent Club 23.

[00:13:16] Speaker 02:
The court actually ruled against us on that, and therefore it's present before this court.

[00:13:27] Speaker 03:
I'm having a little trouble tracking that argument.

[00:13:29] Speaker 04:
So I made it to 00802, and I was trying to see where there were separate arguments on dependent claims versus independent claims.

[00:13:36] Speaker 04:
Can you show me something on 802 that shows me that?

[00:13:38] Speaker 04:
Because I'm not seeing it just on the face.

[00:13:43] Speaker 00:
I need to get up a moment.

[00:13:56] Speaker 02:
Earlier in the brief, we referenced the dependent claims because the court had argued that, or a public comment argued, that Claim 1 was representative for all purposes.

[00:14:07] Speaker 02:
And we said, so that's not actually true.

[00:14:09] Speaker 02:
We dispute that, and we pointed out a number of dependent claims, including 2 through 12 and others that are listed there.

[00:14:16] Speaker 02:
And then during the argument section of when we shifted to the Step 2 argument,

[00:14:24] Speaker 02:
We said amongst arguing amongst other dependent claims.

[00:14:28] Speaker 02:
We argued that Here you simplify the protocol signal signals into their common elements, which is essentially what the benefit 16 and 23 said expressly on their face.

[00:14:41] Speaker 03:
Okay.

[00:14:42] Speaker 03:
Well, we've used all your time in your rebuttal time I'll restore some rebuttal time, but let's hear from opposing counsel.

[00:14:47] Speaker 03:
Thank you, your honor How do I say your name?

[00:15:00] Speaker 00:
Good morning, Your Honors.

[00:15:00] Speaker 00:
May it please the Court?

[00:15:02] Speaker 00:
I want to start with the two points that counsel raised during his argument.

[00:15:08] Speaker 00:
First, this notion that the intermediate protocol is some type of simpler or more efficient or intermediate protocol that has common elements between the first and second protocols of the claims.

[00:15:21] Speaker 00:
Two points in response to that.

[00:15:23] Speaker 00:
That is not required by any of the claims in this case, and it's not an improvement regardless.

[00:15:28] Speaker 00:
So with respect to claim scope, none of the claims require the intermediate protocol to have commonalities between the first and second protocols.

[00:15:36] Speaker 00:
In other words, the protocols of the transmitting and receiving communication devices.

[00:15:41] Speaker 00:
At most, at most, claims 6 and 16, which DirectPacket never mentioned anywhere in their opposition to the Rule 12C motion, recite that the intermediate protocol must have common messages between a text-based

[00:15:57] Speaker 00:
and a binary protocol.

[00:15:59] Speaker 00:
However, none of the claims in the patent, including the claims from which 6 and 16 depend, so 1 and 11, require the use of both a text-based and a binary protocol.

[00:16:11] Speaker 01:
But it doesn't depend on claim 6, depending on claim 1.

[00:16:13] Speaker 01:
Claim 1 says either of them could be text-based or binary.

[00:16:17] Speaker 01:
Correct.

[00:16:17] Speaker 01:
So claim 6 says use common elements of a text-based and a binary.

[00:16:22] Speaker 01:
So it doesn't claim 6 contemplate

[00:16:25] Speaker 01:
an embodiment of the invention where you've got two different protocols, one text-based and one binary, and you're using common elements of both.

[00:16:32] Speaker 00:
I don't think so, Your Honor, for a couple of reasons.

[00:16:35] Speaker 00:
First of all, claim 1 and 11 simply presuppose the existence of a text-based and a binary protocol.

[00:16:42] Speaker 00:
So they don't require the selection of both of those protocols.

[00:16:45] Speaker 00:
So you can have an embodiment in claims 6 and 16 where the intermediate protocol

[00:16:50] Speaker 00:
has common elements between a text based in a binary protocol, which the independent claims presuppose exists without requiring the selection of those particular protocols for the first and second protocols respectively and direct packet itself.

[00:17:05] Speaker 00:
made this argument to the district court.

[00:17:08] Speaker 00:
That's at appendix 382, third line from bottom, direct packet said the first and second protocols can each comprise a text-based protocol.

[00:17:18] Speaker 00:
And in addition, the patent makes clear there are multiple text-based or binary protocols.

[00:17:22] Speaker 00:
That's at column three, lines 25 through 29.

[00:17:26] Speaker 00:
So you could have a situation where the first and second protocols are both text-based and they're just different text-based protocols.

[00:17:34] Speaker 01:
But they wouldn't claim six implied then that you have to use common elements of each protocol, even if they're both text-based or even if they're both binary.

[00:17:42] Speaker 00:
No, your honor, because that's not what claims 6 and 16 say.

[00:17:45] Speaker 00:
They simply say that the intermediate protocol comprises common elements between said text-based protocol and said binary protocol, which again are presupposed to exist in the independent claims.

[00:17:57] Speaker 00:
No selection of those particular types of protocols is required for the first and second protocols of the devices.

[00:18:04] Speaker 00:
But I think in any event, even if this were required by the claims and even if it weren't waived,

[00:18:10] Speaker 00:
It's still not an improvement because there's nothing in the specification that connects these common elements to any type of improved method of conversion or transmission.

[00:18:21] Speaker 00:
In fact, the only method of converting from one protocol to another that's described in the entire patent is to look up each protocol message one by one in a table to find the corresponding message in a different protocol.

[00:18:36] Speaker 00:
It never says there's some kind of efficiency or that you can skip that step if there's a common element.

[00:18:42] Speaker 00:
So the patent never connects these commonalities or simplifications to any improved transmission or conversion process.

[00:18:52] Speaker 01:
But the specification at column 2, lines 23, by providing the interim or intermediate protocol, translation or conversion between different protocols is quick and efficient.

[00:19:04] Speaker 01:
Isn't that the gist of what the patents claim that using this intermediate protocol is going to make translation more efficient?

[00:19:16] Speaker 00:
So the patent does use those words, quick and efficient, your honor, but it's simply stated as a completely conclusory result.

[00:19:23] Speaker 00:
The specification doesn't explain how that desired result of quickness and efficiency is obtained.

[00:19:30] Speaker 01:
Well, one way it provides an example of a lookup table, right?

[00:19:34] Speaker 01:
Having two lookup tables and an intermediate protocol

[00:19:38] Speaker 01:
you into that lookup table, the patent says would make translation quick and efficient.

[00:19:45] Speaker 01:
And if you're interpreting between two different multimedia platforms, Zoom and Skype, you need to have the translation quick and efficient in order to enable real-time communication.

[00:19:58] Speaker 01:
Isn't that the gist of the patent?

[00:19:59] Speaker 00:
I don't think so, Your Honor, for a couple of reasons.

[00:20:02] Speaker 00:
It never actually says that it is quicker or more efficient to use an intermediate protocol than it would be to translate directly between the protocols, which DirectPack admits would be a conventional solution.

[00:20:15] Speaker 00:
And also there isn't a intermediate protocol that keys in a single table here that allows for quick and efficient transmission between incompatible protocols.

[00:20:26] Speaker 00:
The way it's actually described is there are two tables.

[00:20:29] Speaker 00:
There is one table where there are first protocol messages and they correspond to intermediate protocol messages.

[00:20:35] Speaker 00:
And then a second table where the intermediate protocol messages correspond to second protocol messages.

[00:20:41] Speaker 00:
So regardless of whether you have an intermediate protocol or not, you are still going through the rote process of looking up each message in a table exactly how translation has always been done.

[00:20:54] Speaker 00:
It's no different than looking up words in a dictionary, as the district court observed at appendix nine.

[00:20:59] Speaker 00:
And I don't think that's been directly challenged by direct package.

[00:21:03] Speaker 01:
Let me answer your question about that, because that brings up an interesting point.

[00:21:07] Speaker 01:
The district court came up with several articles and additional information to base its decision that this was not patentable subject matter.

[00:21:18] Speaker 01:
Didn't seem to allow the parties an opportunity to respond to what was said in those articles.

[00:21:24] Speaker 01:
Isn't that error?

[00:21:26] Speaker 00:
I don't think it's an error, Your Honor, for a couple of reasons.

[00:21:28] Speaker 00:
And perhaps the simplest reason is just that patent eligibility is reviewed de novo.

[00:21:34] Speaker 00:
It's true we didn't cite those articles.

[00:21:35] Speaker 00:
And we're also not relying on those articles on appeal.

[00:21:39] Speaker 04:
But in the 12C context, are you really arguing just that it's harmless error?

[00:21:43] Speaker 04:
Because it's hard put to not say that when you're looking at the 12C context, it sounds like the district court went outside that normal universe you would examine.

[00:21:51] Speaker 00:
Well, I think to the extent this court were to find that it were error, yes, it would be harmless error.

[00:21:55] Speaker 00:
However, we don't think it's error either.

[00:21:57] Speaker 00:
I think courts have discretion to take notice of longstanding practices at Alice step one.

[00:22:03] Speaker 00:
And in fact, a very similar argument was rejected in affinity labs versus Amazon, which was the same posture on a rule 12C motion.

[00:22:12] Speaker 00:
And the patentee there also argued that the district court had improperly made fact findings at Alice step one.

[00:22:18] Speaker 04:
So are you fundamentally arguing first that the district court could have taken judicial notice of these articles?

[00:22:23] Speaker 04:
That's your argument against error at all.

[00:22:26] Speaker 04:
And then what's your argument with respect to harmless error?

[00:22:28] Speaker 00:
Sure.

[00:22:29] Speaker 00:
So the first point, your honor, I think what the district court here did was take judicial notice of the undisputed fact that humans can translate between two languages via an intermediate language or bridge language.

[00:22:41] Speaker 00:
It's an example that we repeatedly made in the motion papers.

[00:22:45] Speaker 00:
We refer to the intermediate language as analogous to a lingua franca.

[00:22:49] Speaker 03:
So the problem I have with that is the district court didn't rely on these

[00:22:55] Speaker 03:
to take notice of the fact that they could do this.

[00:22:57] Speaker 03:
The district court's express statement is that it is commonplace human communication practice relay translation, which is precisely the translation of information through an intermediate language.

[00:23:10] Speaker 03:
And then cited a couple of articles, commonplace, that this is common.

[00:23:17] Speaker 03:
Relay translation is common in polyglot

[00:23:20] Speaker 03:
communities for use in circumstances ranging from refugee and asylum centers to court proceedings and sign language communication.

[00:23:28] Speaker 03:
I think it would be different to take judicial notice of the fact of an article and to take judicial notice that something is commonplace, especially in particular forums with reference to a small, discrete number of articles, which the other side was not given an opportunity to address.

[00:23:47] Speaker 03:
Maybe they got 20 articles that say this is not at all commonplace.

[00:23:50] Speaker 03:
I don't know.

[00:23:50] Speaker 03:
How would I know?

[00:23:52] Speaker 00:
Well, I think if they did have those articles, Your Honor, they did have the opportunity to amend their complaint.

[00:23:58] Speaker 00:
The district court did give them leave to amend and then they could have alleged any facts they wanted to the extent they believed they were material to the patent eligibility inquiry and they did not do so.

[00:24:08] Speaker 03:
The district court gave them a chance to amend after this?

[00:24:11] Speaker 00:
Yes, Your Honor.

[00:24:11] Speaker 00:
At the end of the district court's opinion, the district court granted leave to amend the complaint and direct packet.

[00:24:19] Speaker 00:
Instead of taking that leave and amending the complaint, they filed a notice of intent not to amend, which is an appendix 836.

[00:24:30] Speaker 00:
And then the court entered judgment.

[00:24:32] Speaker 00:
So they did have the opportunity to amend their complaint.

[00:24:34] Speaker 03:
Are you familiar, or could you point me to... So first off, do courts take judicial notice without saying, hey, I'm taking judicial notice?

[00:24:41] Speaker 03:
I mean, do they do that, like, is this a judicial notice case in your experience?

[00:24:46] Speaker 03:
Or are you saying this is not harmless error because it's akin to judicial notice?

[00:24:50] Speaker 00:
I think it's akin to judicial notice in the sense that the only fact that is material, potentially, to the eligibility inquiry is that humans can and do, at least sometimes, translate languages via an intermediate language, like a bridge language.

[00:25:06] Speaker 00:
We don't rely on the examples that the district court cited to.

[00:25:09] Speaker 00:
For example, it doesn't matter whether relay translation was used in

[00:25:15] Speaker 00:
You know, certain polyglot communities or with Malaysian court interpreters or with deaf interpreters, all those examples that the district court listed, we're not relying on those.

[00:25:25] Speaker 00:
And I don't think they make a difference.

[00:25:27] Speaker 03:
Did he rely on these articles in the context of the.

[00:25:31] Speaker 03:
step one analysis in deciding whether it was abstract or in the step two analysis of deciding inventiveness.

[00:25:38] Speaker 00:
So in the step one analysis, Your Honor, in analogizing the functional result of conversion or translation that is recited in the claims to a long-standing practice or human activity, which is only really one basis for finding these claims to be directed to an abstract idea.

[00:25:58] Speaker 00:
Because on the one hand,

[00:26:00] Speaker 00:
We do argue and we believe that simply interposing an intermediate protocol or language is indeed analogous to what humans have long done.

[00:26:10] Speaker 00:
Not necessarily with those examples that the district court cited, but with the everyday common practice of having- So this is your harmless argument then.

[00:26:18] Speaker 03:
This is where you've pivoted away from defending what his choice to bring in these articles, and you're now explaining to me why they don't matter as harmless error.

[00:26:29] Speaker 00:
Correct, Your Honor, which I think was part of Judge Cunningham's question.

[00:26:33] Speaker 00:
So I think it is also harmless error for two reasons.

[00:26:37] Speaker 00:
One, there is no serious dispute that humans can, and at least sometimes do, translate via an intermediate language.

[00:26:43] Speaker 00:
In fact, I think that is implicit in the direct packets opposition argument, which was at appendix 800, that humans don't normally translate between two languages via a third language.

[00:26:56] Speaker 00:
But in any event,

[00:26:57] Speaker 00:
The analogy to human intermediate language translation isn't necessary to uphold this judgment at all because an independent problem with these claims, which we briefed both below and in the red brief and which the district court recognized

[00:27:12] Speaker 00:
is that the conversion here is merely functionally claimed.

[00:27:17] Speaker 00:
And there's no real dispute that under this court's case law, merely reciting the function of converting from one protocol to another is an abstract idea.

[00:27:26] Speaker 00:
And the claims here just recite that function twice.

[00:27:30] Speaker 00:
both to and from an intermediate protocol.

[00:27:33] Speaker 04:
They call it... Let me make sure that I understand the underlying factual record properly.

[00:27:38] Speaker 04:
My understanding is that direct packets counsel at one point, at least before the magistrate, brought up this analogy to sort of this language translation.

[00:27:48] Speaker 04:
Is that accurate?

[00:27:50] Speaker 00:
That is correct, Your Honor.

[00:27:51] Speaker 00:
So first of all, the patent itself refers to languages.

[00:27:56] Speaker 00:
It makes an analogy to language when it talks about incompatible protocols.

[00:27:59] Speaker 00:
There was also a hearing before the magistrate judge where direct packets counsel made the analogy of these incompatible protocols being, well, you could have one system that speaks English, one speech system that speaks Spanish, and they would be able to talk to each other because of this translation.

[00:28:15] Speaker 00:
So that analogy was made in the first instance by direct packet itself, both in the patent and before the district court, then

[00:28:24] Speaker 00:
In the briefing, we also analogized the intermediate protocol to a lingua franca like English or like French and the enlightenment or Latin in the Roman era.

[00:28:33] Speaker 00:
Um, and direct packet responded by saying, well, you don't usually translate between two languages, um, via an intermediate language.

[00:28:42] Speaker 00:
And in reply, we pointed to an example.

[00:28:44] Speaker 00:
We actually cited a case, uh, noting that relay translation is in fact a recognized interpretation mode.

[00:28:50] Speaker 00:
Now it's true.

[00:28:51] Speaker 00:
We did not cite any of those articles.

[00:28:53] Speaker 00:
Those are not part of the record, and we don't rely on them in our motion, and we didn't rely on them in the rent brief.

[00:29:00] Speaker 00:
We believe the district court has discretion to cite extrinsic evidence when it would like to at Alice step one, which is a legal question, just in determining whether something is directed to an abstract idea.

[00:29:11] Speaker 00:
But we don't believe this court needs to rely on those materials, and we are not relying on those materials on appeal to sustain the judgment.

[00:29:19] Speaker 00:
I do want to briefly address the real-time conversion issue that counsel also mentioned.

[00:29:23] Speaker 00:
There is no claim construction that requires real-time conversion here.

[00:29:28] Speaker 00:
Counsel pointed to the complaint at paragraph 15, which is at A204.

[00:29:33] Speaker 00:
The complaint merely says that multimedia communication sessions typically involve real-time communication, and so it certainly doesn't require that.

[00:29:42] Speaker 00:
Direct packet had the opportunity to raise claim construction in response to our motion.

[00:29:47] Speaker 00:
In fact, at appendix 776, we argued that claim construction was not material.

[00:29:52] Speaker 00:
Direct packet did not respond to that.

[00:29:54] Speaker 00:
So we would submit that all of these claim construction issues are waived.

[00:29:58] Speaker 00:
And so unless there are any further questions from the panel, we would ask the court to affirm the judgment.

[00:30:03] Speaker 03:
OK, thank you, counsel.

[00:30:04] Speaker 00:
Thank you, members.

[00:30:05] Speaker 02:
So as you heard, this is not a... Give us just two minutes.

[00:30:10] Speaker 02:
May it please the court.

[00:30:15] Speaker 02:
May it please the court.

[00:30:20] Speaker 02:
May it please the court.

[00:30:23] Speaker 02:
May it please the court.

[00:30:26] Speaker 02:
May it please the court.

[00:30:28] Speaker 02:
Technical dictionaries, the court does that all the time.

[00:30:31] Speaker 02:
That's not what happened here.

[00:30:32] Speaker 04:
Why didn't you amend?

[00:30:33] Speaker 04:
Because you were given the opportunity to amend.

[00:30:35] Speaker 02:
Absolutely.

[00:30:36] Speaker 02:
There was no need to amend.

[00:30:37] Speaker 02:
The complaint reads perfectly well.

[00:30:38] Speaker 02:
And if you look at paragraphs 15 through 23 of the complaint, which must be accepted as true, we describe how this practice was conducted before this invention and why this is an inventive concept.

[00:30:50] Speaker 02:
Those must be accepted as true.

[00:30:51] Speaker 04:
Did you ever directly raise the district court

[00:30:54] Speaker 04:
a concern with it putting these articles in its order.

[00:30:58] Speaker 02:
No, because there was no hearing, Your Honor.

[00:31:00] Speaker 04:
But did you ever ask the district court for a hearing post the issuance of this order to raise the concern with respect to the articles?

[00:31:08] Speaker 02:
No, we did not, Your Honor, because it's not even identified as judicial notice.

[00:31:12] Speaker 02:
And we thought that would be a vain act.

[00:31:13] Speaker 02:
It was clear that the court had made up its mind and wanted to move forward.

[00:31:17] Speaker 02:
Now, let me address relay translation.

[00:31:19] Speaker 02:
That's not what's happening in this patent.

[00:31:21] Speaker 02:
Relay translation does not involve creating a brand new language.

[00:31:26] Speaker 02:
on the spot, which is what happens here with the intermediate protocol.

[00:31:31] Speaker 02:
Let me also address the question, Judge Scarcer, that you had started to get at with respect to 6, 16, and 23.

[00:31:37] Speaker 02:
As Your Honor probably knows, there are only two types of communication protocols, two families, binary and text-based.

[00:31:45] Speaker 02:
So the argument that's made about Claim 6

[00:31:48] Speaker 02:
is simply wrong because it miscompletes that there are only two families of this.

[00:31:53] Speaker 02:
It has to be in those families.

[00:31:55] Speaker 04:
Just to close out on my line of questioning, you never move for reconsideration of the order on the 101 issue?

[00:32:02] Speaker 02:
No, Your Honor, the advice we got from the local council that that would not work.

[00:32:05] Speaker 02:
This is a court that would not give us more than 15 pages for a 101 argument in a very highly technical environment, would not hold a hearing on that.

[00:32:14] Speaker 02:
Best practices district court to know is to always on a 101 hold some sort of technological hearing to try to understand it.

[00:32:21] Speaker 02:
And so it would have been a vain act, a waste of time, and a waste of the client's money, quite frankly, not to have done that.

[00:32:28] Speaker 04:
Why do you think it's not harmless error for the court to have relied on these?

[00:32:33] Speaker 02:
Well, it's harmful error because this is exactly the reason the court found the patent to be patent ineligible.

[00:32:40] Speaker 02:
And it was not the usage of them was not limited to step one.

[00:32:43] Speaker 02:
It was used at step two to show nonconventionality, a fact finding that the court was not allowed to make a Rule 12C hearing as your honor correctly defined its questioning of that belief.

[00:32:58] Speaker 02:
The non-conventionality element is... OK, I think we're good.

[00:33:03] Speaker 03:
I thank counsel.

[00:33:03] Speaker 03:
This case is taken under submission.