[00:00:00] Speaker 01:
All right, our final argument for today is 24-1520, US patent number 7679637, LLC, versus Google.

[00:00:13] Speaker 01:
Mr. Burton, please proceed.

[00:00:15] Speaker 00:
Thank you, Your Honor.

[00:00:18] Speaker 00:
Dave Burton, for the appellant, I am reserving five minutes for rebuttal.

[00:00:22] Speaker 00:
The technical solution that was achieved in this case was directed to a very specific problem

[00:00:30] Speaker 00:
specific problem with web conferencing systems, which were not able at the time to be reviewed while they were going on live.

[00:00:39] Speaker 00:
What the inventor came up with was a technical way of solving that problem that started with recording two different data streams.

[00:00:48] Speaker 00:
So just like in the Contour IP case, which recently came down last year, which involved two different data streams,

[00:00:54] Speaker 00:
This case involved two different data streams, one of screen video and one of something like chat.

[00:01:02] Speaker 00:
It then had a very specific storage means and a separate client application that allowed for both reviewing the meeting while it was going on live and reviewing previously recorded parts of that meeting.

[00:01:18] Speaker 00:
The district court in this case found that the abstract idea that this case was applied to

[00:01:24] Speaker 00:
was playing back recorded content.

[00:01:26] Speaker 00:
It didn't have anything to do with the first problem, which is allowing viewing a live meeting.

[00:01:33] Speaker 00:
The claim, excuse me, if the abstract idea doesn't address one of the key parts of the claim, which is that you have to allow a meeting to be reviewed while it's happening live, it can't possibly be a fair reading of what the claim is directed to.

[00:01:52] Speaker 00:
And it becomes what the court warned us to avoid doing in both the Enfish decision and in Contour IP and multiple other decisions.

[00:02:01] Speaker 00:
It becomes untethered to the claims themselves and becomes overgeneralized.

[00:02:06] Speaker 00:
And when that happens, you have exactly what happened in this case, which is an abstract idea that is so broad that it would sweep up all sorts of technologies for playing back recorded content.

[00:02:20] Speaker 02:
So is that what you just referred to?

[00:02:23] Speaker 02:
Do you use the phrase, are you comfortable with using the phrase time scale modification to refer to that?

[00:02:30] Speaker 00:
So what the title of the patent is, Time-Shifted Web Conferencing.

[00:02:35] Speaker 00:
And so part of what it did, part of what it did, was a separate technical advance, which was to allow

[00:02:43] Speaker 00:
speeding up parts of the previous recorded meeting.

[00:02:46] Speaker 00:
So the basic idea, I mean, obviously, all of us are familiar with Zoom conferencing now, or the Imprinting product live streaming on Google, where you can join a meeting that's already in progress and have some control over how fast you want to catch up to what's going on in that meeting.

[00:03:04] Speaker 00:
That's another technical advance in the patent, where the patentee

[00:03:08] Speaker 02:
Develop the idea of being able to make the meeting move at a faster speed so that you can catch up and join So the way I understand the decision below is I agree with you first of all that maybe the crafting of the abstract idea might be too broad right but setting aside from that even if the abstract idea is you know

[00:03:33] Speaker 02:
or, no, I shouldn't say the abstract idea.

[00:03:35] Speaker 02:
How they characterize which claim is directed to was too broad.

[00:03:38] Speaker 02:
Sorry about that.

[00:03:40] Speaker 02:
So your claim seems to be more directed to the idea of being able to get into the web conference late and then do

[00:03:52] Speaker 02:
watch the meeting and you can watch from the beginning of the meeting and you can also make it so that meeting goes by faster so you can catch up to the real-time meeting, right?

[00:04:05] Speaker 02:
So the patent specification says that this kind of idea of watching something while it was occurring live, say a sports event, was already known.

[00:04:17] Speaker 02:
and that you also could time shift it so you could catch up to the live event faster, or in the case of baseball, maybe just make it go faster, right?

[00:04:25] Speaker 02:
And so why isn't that, as applied to web conferencing, an abstract idea?

[00:04:35] Speaker 00:
It's an interesting question that I actually thought about reserving a lot of time from our model because I didn't know which abstract idea Google was going to argue.

[00:04:43] Speaker 00:
It was the District Court one, which is the one I think we're reviewing, or the one where they added playing back recorded content during a live meeting, which I still think is over-broad.

[00:04:54] Speaker 00:
But to answer the question on

[00:04:56] Speaker 00:
Is this combination of elements itself?

[00:05:01] Speaker 00:
Where's the technical solution if if it's just applying old technology to a new environment Well because the old technology wouldn't work in the new environment That's one reason your honor so the specific web conferencing Capabilities that were developed you couldn't just tivo if you could just tivo them in a web conference then it wouldn't be in advance and

[00:05:24] Speaker 00:
But one of the insights of the inventor was to say, look, we're going to have to break this down into two different data streams.

[00:05:30] Speaker 00:
Because if we just have one data stream, that's not the way the web conferencing systems work when they're being presented.

[00:05:37] Speaker 00:
So he came up with an independent client application for the presenter side of the claim.

[00:05:43] Speaker 00:
The storage means it's detailed in the patent specification itself, and then a separate client application for the observing end that would allow viewing these two different parts while the last presentation was going on.

[00:05:57] Speaker 02:
So in other words, if I understand correctly, you'd have a data stream for the presenter talking, right, audio, or maybe some video.

[00:06:05] Speaker 02:
And you'd have a data stream for the document or other thing, chat, whatever it is.

[00:06:11] Speaker 02:
That would be the other aspect that you get sometimes with web conferencing, where it's not just a person speaking, but also you can see what they're presenting or see the chat comments.

[00:06:21] Speaker 00:
100% correct, Your Honor.

[00:06:23] Speaker 00:
The first part is element A of claim two.

[00:06:26] Speaker 00:
which is screen video of the presentation portion of the client application.

[00:06:31] Speaker 00:
The second part of the separate data stream is element B. It is a separate data stream that is described as being things like chat or looking at documents or web pages while this live presentation is ongoing.

[00:06:45] Speaker 00:
So that solution, which didn't appear in the priority specifically, compares it to something like TiVo, which is taking a single unified linear stream of information that's coming over a TV, for example, and recording it on a single client device, TiVo in your own house, that's recording a particular show.

[00:07:08] Speaker 00:
You could then rewind that particular

[00:07:13] Speaker 00:
single stream of information, but that technology would not transfer into a web conference.

[00:07:18] Speaker 02:
So the technical solution to the technical problem that's unique to web conferencing is having two data streams.

[00:07:26] Speaker 02:
You'd have one system to deal with the video, one system to deal with the other.

[00:07:31] Speaker 00:
That is correct.

[00:07:32] Speaker 00:
And that is part of what the diss report overlooked when it reached the conclusion that the claim was directed to this abstract idea of playing back recorded content.

[00:07:42] Speaker 00:
I want to speak briefly about playing back.

[00:07:45] Speaker 02:
I do think that your adversary takes the position that that alone is not enough.

[00:07:51] Speaker 02:
That's not an inventive concept.

[00:07:54] Speaker 02:
What is your response to that?

[00:07:55] Speaker 00:
I don't think they dealt with it below, Your Honor.

[00:07:57] Speaker 00:
I don't think that they dealt with the fact that there were two different data streams involved.

[00:08:01] Speaker 00:
What they did is they said, well, there's

[00:08:03] Speaker 00:
functional claiming for each one of the two different data streams.

[00:08:07] Speaker 00:
But they didn't address the fact that the separate data streams itself was part of the technical solution to the problem.

[00:08:13] Speaker 00:
It's just not there.

[00:08:14] Speaker 00:
So we said, yeah, I think it's on page 165 of the appendix, page 4 of our response brief.

[00:08:22] Speaker 00:
And just to remind the court, this is a case that ignored the admonishment of Berkheimer and Patrickson did this decision on a motion to dismiss.

[00:08:31] Speaker 00:
without development of any other parts of the record.

[00:08:35] Speaker 00:
So in that brief, we made this exact argument about the TiVo system being linear and the solution of the inventor being breaking it down into two different data streams to allow the system to work in a web conferencing environment.

[00:08:52] Speaker 00:
So I can reserve the rest of my time for rebuttal unless there are other questions.

[00:09:00] Speaker 01:
Okay, thank you Mr. Burton.

[00:09:21] Speaker 03:
May it please the court.

[00:09:23] Speaker 03:
The district court performed a comprehensive section 101 patent eligibility analysis.

[00:09:28] Speaker 01:
Council, I'd like to ask

[00:09:30] Speaker 01:
What exactly you think the abstract idea is in this case?

[00:09:34] Speaker 01:
Because I, like I think maybe I heard Judge Stoll saying, was a little troubled.

[00:09:40] Speaker 01:
I thought that the district court's characterization of playing back recorded content was overly generalized and it just

[00:09:47] Speaker 01:
ignored the important claim language about being able to asynchronously observe a web conference session while the session is still going on.

[00:09:54] Speaker 03:
Sure.

[00:09:54] Speaker 03:
So we think that, or we, excuse me, though, holding this record that the abstract idea is playing back recorded content, we believe that's an accurate representation of the abstract idea.

[00:10:05] Speaker 01:
What do you think the abstract idea is?

[00:10:06] Speaker 03:
Playing back recorded content.

[00:10:08] Speaker 03:
And we believe that's a direct function of the claim language itself.

[00:10:12] Speaker 01:
Is that a question of law or a question of fact?

[00:10:15] Speaker 03:
At step one, it's a question of law.

[00:10:17] Speaker 01:
OK, so I started my question by saying, like Judge Stoll, I kind of don't agree, and I think this is an over-termalization, and you just doubled down on it anyway.

[00:10:24] Speaker 01:
And it's a question of law, I reviewed de novo.

[00:10:26] Speaker 01:
Correct.

[00:10:26] Speaker 01:
Do you have a backup plan?

[00:10:28] Speaker 03:
Yes, Your Honor.

[00:10:28] Speaker 01:
OK, what's your backup plan?

[00:10:30] Speaker 03:
If we look to the claim language itself, for claim two, the language itself, our formulation of the abstract idea is direct function of the language itself.

[00:10:42] Speaker 03:
So if we look to claim two,

[00:10:48] Speaker 03:
which is that Appendix 39.

[00:10:50] Speaker 03:
And we laid this out in our brief.

[00:10:52] Speaker 03:
And as the district court analyzed, each and every limitation is really just functional language.

[00:10:57] Speaker 03:
So it just covers the sharing of data stream.

[00:11:00] Speaker 01:
See, I agree.

[00:11:01] Speaker 01:
And we've got a lot of cases.

[00:11:02] Speaker 01:
I'm 100% with you on the functional language.

[00:11:04] Speaker 01:
And Materio is one versus DraftKings.

[00:11:08] Speaker 01:
We've got a lot of cases.

[00:11:11] Speaker 01:
I know I have a few others here.

[00:11:13] Speaker 01:
A lot of this international business machine, there's a whole bunch of them, and we've been really clear that you can't just use this result-oriented claim language with no specific implementation of how.

[00:11:27] Speaker 01:
Correct.

[00:11:27] Speaker 01:
And I agree that Claim2 does that.

[00:11:29] Speaker 01:
Arrange to allow, arrange to allow.

[00:11:32] Speaker 01:
Correct.

[00:11:32] Speaker 01:
How is it arranged to allow?

[00:11:33] Speaker 01:
We don't know.

[00:11:34] Speaker 01:
But is that a step one?

[00:11:37] Speaker 01:
issue or a step two issue and the reason it's important is because if it's a step two issue you don't even get to step two unless there's an abstract idea at step one correct so is is this result oriented functional claiming problem which i think this claim absolutely suffers from is that a step one issue or a step two issue i'll be honest with you

[00:12:00] Speaker 01:
I don't always know where that line is.

[00:12:02] Speaker 03:
That's fair, Your Honor.

[00:12:03] Speaker 03:
And so this court's case law, I think, uses it typically as an analytical tool at step one when it's analyzing a claim.

[00:12:10] Speaker 03:
And it tends to emphasize such language there.

[00:12:13] Speaker 03:
And the district court here, if I could point this court to the work of the district court, actually applied three separate tests from this court's precedent to triple check its holding here, that the claims were directed to an abstract idea

[00:12:28] Speaker 03:
The second test applied was analyzing the claim language to evaluate the result-oriented nature.

[00:12:35] Speaker 03:
The first, though, touches on what, Chief Judge Moore, you just raised, which is what is the how here?

[00:12:40] Speaker 03:
What specific technical problem are these claims purportedly solving?

[00:12:46] Speaker 03:
And below, plaintiff merely asserted that these were directed to an abstract idea.

[00:12:53] Speaker 03:
And the district court went on to note that it struggled to discern what the specific technical solution even was here, because the plaintiff didn't elaborate.

[00:13:01] Speaker 03:
So just as an initial matter, there is

[00:13:03] Speaker 01:
issue of forfeiture, but even turning to... So, okay, so I probably would have gone at your answer a little differently than you did, but we get to the same place.

[00:13:12] Speaker 01:
I would have drawn my attention, i.e.

[00:13:14] Speaker 01:
me, to Baterio, which says this result-oriented functional claiming language is part of the step one inquiry, and then I would have drawn me to Hawks, technical, which says the same thing.

[00:13:23] Speaker 01:
So I, if I were in your shoes,

[00:13:25] Speaker 01:
would have grounded me, Judge Moore, in the actual cases that make it clear that's part of the step one analysis.

[00:13:31] Speaker 01:
Does that obviate the need for identifying an abstract idea?

[00:13:35] Speaker 01:
Or if you have result-oriented claiming, is that a separate way to prove ineligibility that is discrete and separate from

[00:13:45] Speaker 01:
The notion I don't agree with the district court's broad generalization on the abstract idea.

[00:13:50] Speaker 01:
We could try and come up with another one.

[00:13:52] Speaker 01:
Or you could tell me alternatively that this is a separate vehicle for also evaluating eligibility.

[00:13:58] Speaker 01:
But that's what I'm trying to piece together is a rubric in my mind.

[00:14:02] Speaker 01:
for how these different concepts fit together under our 101 eligibility law.

[00:14:07] Speaker 03:
Sure.

[00:14:07] Speaker 03:
And I think if we look to the recent cases that you just cited, to me, Your Honor, like Baterio and AI Visualize, those cases seem to treat these different tests as almost a toolbox.

[00:14:16] Speaker 03:
So they're different indicators of what an abstract, if the claims are directed to an abstract idea.

[00:14:22] Speaker 03:
So even if we put aside the formulation, I take your point that you might not agree without the district court phrased it, when you apply those three

[00:14:29] Speaker 03:
analytical tools that the district court applied here to functional language at step one, whether these claims are actually directed to a specific technical solution.

[00:14:37] Speaker 03:
And third, another test, analogizing to other claims that this court has held, both eligible and ineligible, to see what side of the line claims might fall on.

[00:14:46] Speaker 03:
The district court really engaged with that precedent under each test.

[00:14:50] Speaker 03:
reach the same conclusion that these are directed to an abstract idea.

[00:14:53] Speaker 01:
I get all that.

[00:14:55] Speaker 01:
That's like a kitchen sink approach.

[00:14:57] Speaker 01:
Do you think though that we have to be able to articulate a precise abstract idea as a starting point or do you think that this functional language tool, the how being missing from the claim suffices on its own and we don't even need to articulate a particular abstract idea.

[00:15:15] Speaker 01:
This is me trying to figure out how

[00:15:18] Speaker 01:
to fit these things together.

[00:15:19] Speaker 03:
Sure.

[00:15:20] Speaker 03:
And frankly, Your Honor, in these cases involving data communication going back and forth, the court, I think, applies these tests.

[00:15:29] Speaker 03:
And the formulation of the abstract idea is it's not always

[00:15:35] Speaker 03:
the initial holding.

[00:15:36] Speaker 03:
So it's not like you have to decide what the abstract idea is and then apply the test to confirm.

[00:15:40] Speaker 02:
Aren't you supposed to be looking at what are the claims directed to?

[00:15:43] Speaker 02:
Not what is the abstract idea?

[00:15:46] Speaker 02:
Yes, Your Honor.

[00:15:47] Speaker 02:
Just making sure you've got the right phraseology.

[00:15:49] Speaker 03:
Yes, Your Honor.

[00:15:50] Speaker 03:
That's correct.

[00:15:50] Speaker 03:
The test is, the inquiry is, what are the claims directed to?

[00:15:55] Speaker 02:
And then if what the claims are directed to is an abstract idea.

[00:15:59] Speaker 03:
That's correct, Your Honor.

[00:16:02] Speaker 01:
And so what do you, what

[00:16:04] Speaker 01:
What do you think these claims are directed to that is an abstract idea?

[00:16:08] Speaker 03:
So if we put aside what the district court held and we look to the claim language itself, it's the manipulation of data at a high level.

[00:16:16] Speaker 03:
But looking at the claim language, it's a tether us there as we agree that we must do here.

[00:16:20] Speaker 03:
It's the sharing of data, the storing of data, the observing of data, and then that last step.

[00:16:28] Speaker 02:
You're not going to include in there that it includes being able to observe

[00:16:34] Speaker 02:
previously recorded events while the live event is still occurring?

[00:16:37] Speaker 03:
Well, I was about to reach that point, Your Honor, and that goes to the last part about we called that playing back recorded content, but it's really taking data that's been recorded and the ability to manipulate that and review it.

[00:16:49] Speaker 03:
That's part of that playing back recorded content.

[00:16:52] Speaker 02:
I think the claim in part E says that that's what's happening, and part F it says that actually you could watch previously recorded data even though the presentation is over.

[00:17:00] Speaker 02:
Do you read that the same way as me?

[00:17:02] Speaker 03:
Yes.

[00:17:02] Speaker 03:
So the claims allow both.

[00:17:04] Speaker 03:
If a meeting is ongoing, you can rewind and view the meeting, or you can play it back after the meeting.

[00:17:11] Speaker 03:
Yes.

[00:17:12] Speaker 03:
But just one point to another point to emphasize here is, Your Honor, you brought up the time modification component.

[00:17:21] Speaker 03:
And I just wanted to emphasize that the intrinsic record there, the inventor or the applicant himself

[00:17:26] Speaker 03:
admitted that he just took a pre-existing time modification component.

[00:17:31] Speaker 02:
And is that in the specification?

[00:17:33] Speaker 02:
Yes, it is.

[00:17:33] Speaker 02:
The patent itself?

[00:17:35] Speaker 02:
Yes.

[00:17:35] Speaker 02:
So that's why you would say that there aren't disputed factual issues under Berkheimer, right?

[00:17:41] Speaker 03:
That's correct.

[00:17:42] Speaker 03:
That distinguishes Berkheimer from this case.

[00:17:44] Speaker 02:
Do you have a column in German?

[00:17:46] Speaker 03:
Yeah.

[00:17:47] Speaker 03:
It's at Appendix 38.

[00:17:47] Speaker 03:
If you look at column 9, lines 10 through 13, there it's discussing the

[00:17:56] Speaker 03:
It's discussing the audio timescale modifications to that line 4 and it's that last sentence that begins at line 10 that says

[00:18:06] Speaker 03:
the first inviting invention actually used an open source available time modification component, which reinforces that nothing really inventive here.

[00:18:14] Speaker 03:
This is just conventional technology being applied in a technical environment.

[00:18:18] Speaker 01:
Is there anything else you think we need to know?

[00:18:19] Speaker 01:
I have a question.

[00:18:20] Speaker 02:
Thank you.

[00:18:21] Speaker 02:
There was a lot of emphasis in the opening argument on something that was different from that prior and was the technical solution here was having two different data streams.

[00:18:32] Speaker 02:
So I want to know your response to that, because I do think that's

[00:18:36] Speaker 02:
That's the crux of the urban.

[00:18:37] Speaker 02:
I do think there might be responses, but I want to know what you have to say.

[00:18:40] Speaker 03:
Sure, Your Honor.

[00:18:41] Speaker 03:
I think the two data streams point.

[00:18:43] Speaker 03:
This court's case law has dealt with similar claims.

[00:18:46] Speaker 03:
So if we look to Coq Technology, for example, there the court held that the claims were directed to the abstract idea of storing and displaying video.

[00:18:55] Speaker 03:
But when you look at the claims itself, multiple data streams of audio and visual information were being sent and received, and there was no inventive

[00:19:03] Speaker 03:
That was not held to be some sort of public audit.

[00:19:05] Speaker 02:
So what about those things, like focusing on the facts of this case?

[00:19:07] Speaker 02:
Why is it that a person of ordinary skill and AR isn't creating something inventive by saying, oh, it would be great to be able to do this, but we've got a problem here because there's two different data streams.

[00:19:20] Speaker 02:
So we're going to have to have two different ways, two different systems for

[00:19:24] Speaker 02:
dealing with these two different data streams.

[00:19:26] Speaker 03:
So we look to the claim language right away, and that doesn't really provide any meaning as we just walk through.

[00:19:33] Speaker 03:
It's all in functional language.

[00:19:34] Speaker 03:
So we can turn to the specification to see if that provides any insight as to if this is a real specific technical improvement.

[00:19:42] Speaker 02:
You don't think the claims say that you have to have a first data stream and a second data stream?

[00:19:47] Speaker 02:
Necessarily so, because there's

[00:19:49] Speaker 02:
there's two different types of data?

[00:19:51] Speaker 03:
We agree that it states that that's claimed in the claim itself, but the specification does not say that this is specific technical improvement in the field of web conferencing.

[00:20:01] Speaker 02:
Does it have to say it's a specific technical improvement?

[00:20:03] Speaker 03:
I think it's part of the directed to inquiry.

[00:20:05] Speaker 03:
When we look at what the claims are directed to, that is part of that inquiry.

[00:20:10] Speaker 03:
If that is the alleged specific technical improvement.

[00:20:12] Speaker 02:
What if the specification doesn't say anything, but it just says,

[00:20:15] Speaker 02:
that we're using two data streams.

[00:20:18] Speaker 02:
I know what you're saying.

[00:20:19] Speaker 02:
They didn't say, oh, this was so hard to figure out.

[00:20:22] Speaker 02:
So we realized we had to have two different data streams.

[00:20:25] Speaker 02:
You're saying there's nothing like that.

[00:20:27] Speaker 02:
But do you have any other argument besides that?

[00:20:30] Speaker 03:
Yes, Your Honor.

[00:20:31] Speaker 03:
There is actually a disclosure and specification that describes how the data streams are sent and received.

[00:20:38] Speaker 03:
And there, it explains that the way data streams are actually used here is also conventional and routine.

[00:20:44] Speaker 03:
So it's not anything invented.

[00:20:46] Speaker 03:
And I point the court to Appendix 36.

[00:20:48] Speaker 03:
This is the patent.

[00:20:50] Speaker 03:
At column 5, the section on streams begins at line 24 there.

[00:20:55] Speaker 03:
And pointing to the third paragraph, it states that at line

[00:21:01] Speaker 03:
Excuse me, 37.

[00:21:03] Speaker 03:
The frame scheme is commonly used in the audio and visual field, which reinforces that this isn't some inventive step.

[00:21:10] Speaker 03:
The actual intrinsic record of the patent refused that.

[00:21:36] Speaker 00:
This is one of those instances where I'm actually a little afraid to speak.

[00:21:41] Speaker 00:
I agree with what I believe the court is saying, that the abstract idea found below is too broad.

[00:21:48] Speaker 00:
So reversing the district court and telling the district court that the patent is not directed to an abstract idea I think would be the correct solution in this case.

[00:22:01] Speaker 00:
One thing I do want to add in terms of conventionality is that,

[00:22:06] Speaker 00:
the respondent stopped reading that paragraph in column five, which applies what it said was a key and delta frame scheme that is used in the audiovisual field and said you can apply that scheme to a whiteboarding session or

[00:22:27] Speaker 00:
a separate sequence of frames.

[00:22:30] Speaker 00:
So he's taking one solution, one aspect of the audiovisual and applying it to something else where it hadn't been commonly used.

[00:22:38] Speaker 00:
This entire discussion of what was or was not conventional, typically it's going to be done through a much more developed record than what happened in this case, which was another thing that happened below.

[00:22:50] Speaker 00:
The court did not give us an opportunity to amend the claims to address any of these issues

[00:22:55] Speaker 00:
So apart from what's in the pad itself, there is an absence of development of the record of what was known conventional routine at the time the pad was invented.

[00:23:06] Speaker 00:
So I don't have a lot more to add, Your Honors, unless you have additional questions.

[00:23:13] Speaker 01:
OK, no.

[00:23:13] Speaker 01:
Thank all counsel.

[00:23:14] Speaker 01:
This case is taken under submission.