[00:00:14] Speaker 00:
May it please the court, Lance White on behalf of Appalese.

[00:00:17] Speaker 04:
This is one of those dangerous situations in which if you happen to lose this case, it's rather awkward since you have no opponent.

[00:00:25] Speaker 00:
It is, and as Your Honor stated, AML is not here today.

[00:00:29] Speaker 01:
I'm curious whether you're going to take rebuttal against your argument.

[00:00:33] Speaker 00:
You know...

[00:00:34] Speaker 00:
If I did that, that might show there's a serious problem.

[00:00:38] Speaker 00:
AML's absence is consistent with the appeal it filed. AML does not dispute that venue is improper. And it has waived any challenge to the merits of the district court's Section 101 ruling.

[00:00:52] Speaker 02:
Right. So we know what the issue is. Can I just ask you a housekeeping matter to start? There's big lots, and there's a bankruptcy stay. Yes, Your Honor. What effect does that stay have, if any, on our disposition here? For example, could we issue a decision that applies to all athletes here, or do we have to hold the appeal as to Big Lots until the bankruptcy state is resolved?

[00:01:21] Speaker 00:
I think if the court were to affirm in full here, I think it would apply to Big Lots and it would resolve the Big Lots appeal.

[00:01:29] Speaker 02:
And that's kosher? That's okay for us to do? I believe so.

[00:01:37] Speaker 03:
Any source of confidence for your belief?

[00:01:40] Speaker 00:
I don't, Your Honor.

[00:01:41] Speaker 03:
Other than thinking that that's probably an answer that's more favorable for your client?

[00:01:45] Speaker 00:
Well, I mean, you know, it just seems logically that it would apply to Big Lots because if the court does affirm in full, then the Section 101 ruling stands. The patent that was asserted against all of the Apollies is now invalid as ineligible under Section 101.

[00:02:02] Speaker 00:
And it seems that there would be no reason... to kind of hold that stay as to Big Lots if the patent that has been asserted is affirmed to be.

[00:02:15] Speaker 01:
The stay exists because Big Lots is in bankruptcy, correct?

[00:02:19] Speaker 00:
Correct, Your Honor.

[00:02:20] Speaker 01:
So our decision, how would it alter Big Lots' position in the bankruptcy proceeding? Yes.

[00:02:30] Speaker 01:
Well, I think, why was there a state institute?

[00:02:36] Speaker 00:
Sure. So the stay was instituted just because of the nature of the bankruptcy. Because the bankruptcy was entered, a stay followed. And so I think, you know, if the stay were to apply in this court today, were to affirm in full, as soon as that stay is lifted, it seems that that affirmance would apply and there would be no reason to really... It would get rid of a contingent liability, right? Right.

[00:02:59] Speaker 04:
And by getting rid of a contingent liability, presumably there's some effect on... Right. Which is one of the reasons that I think we typically have bankruptcy stays, is to avoid changing the status of the bankrupt estate during the pendency of the bankruptcy proceeding.

[00:03:22] Speaker 04:
So that would seem to suggest that maybe we should stay.

[00:03:29] Speaker 00:
And, you know, if that is the case, then, you know, and that is what the law requires.

[00:03:33] Speaker 02:
We'll stay as to that one.

[00:03:35] Speaker 00:
As to that one one. Right. Right.

[00:03:39] Speaker 02:
Okay. All right. Back to the merits.

[00:03:42] Speaker 00:
So AML does not dispute that venue is improper and it is way of any challenge to the merits of the Section 101 ruling. Instead, AML asked this court to vacate the Section 101 ruling on the theory that once venue was found improper, the district court should have gone no further.

[00:03:59] Speaker 00:
But that argument does not justify vacator.

[00:04:03] Speaker 00:
Improper venue did not strip the district court of subject matter jurisdiction.

[00:04:08] Speaker 02:
What if he had done them in a different order? Would that make any difference?

[00:04:12] Speaker 00:
I don't think so.

[00:04:13] Speaker 02:
He considered venue first, which makes it cleaner for your friend on the other side.

[00:04:18] Speaker 00:
Sure.

[00:04:18] Speaker 02:
I already didn't have venue, but it wouldn't make.

[00:04:21] Speaker 02:
I don't think the arguments would be any different if we did one in the first order, right?

[00:04:26] Speaker 00:
I agree, Your Honor. Because the motions were briefed together and argued together, that I think really what we're kind of dealing with here is the sequencing that the district court used. And AML has not identified any authority showing that that sequencing by the district court was reversible error.

[00:04:52] Speaker 00:
or caused any concrete prejudice.

[00:04:55] Speaker 02:
Okay. Your view essentially is that the district court has discretion on how to deal with these Rule 12 grounds for dismissal.

[00:05:04] Speaker 00:
Exactly.

[00:05:06] Speaker 02:
Is there anything the movement can say in its motion papers that limit the district court's discretion? For example, could it say something like, please dismiss on ground one and reach Gronk to only if you disagree with Gronwon, that Gronwon mourns dismissal? And would the district court be compelled to honor that request if that's the way the motions were presented?

[00:05:31] Speaker 00:
Do you mind repeating just that sequence of what the movement would say in that scenario?

[00:05:35] Speaker 02:
He'd say, please decide, rule on, just please dismiss on Gronwon.

[00:05:43] Speaker 02:
And please don't reach ground two unless you decide not to dismiss on ground one. In other words, here if he had said, please decide venue against venue, but only if you decide one way or another, can he limit it? Like if you grant the venue motion, don't reach the 12B6 motion. Okay.

[00:06:02] Speaker 00:
I still think that the court has discretion, because if we look at 1406, the court has to decide whether to dismiss or, in the interest of justice, to transfer. And what courts have done, when there are simultaneous motions to dismiss, once it finds venues improper, sometimes it will take a look at the other reasons.

[00:06:24] Speaker 02:
But the movement of the motions makes the second conditional on rejecting the first. Is the court falling by the back?

[00:06:36] Speaker 00:
That is an interesting question because it doesn't seem, at least in this scenario, it doesn't seem like it would benefit the movement to ask the court to simply address venue and not move to the second ground if it does find venue improper. Because, of course, if it simply finds venue improper, then it could transfer or it could dismiss, and it would be a dismissal without prejudice such that the plaintiff could refile in a separate district.

[00:07:09] Speaker 00:
Whereas here, moving on to the second round of dismissal, it actually, if granted, results in a dismissal with prejudice.

[00:07:20] Speaker 04:
Do you think this case would be different if this were a 1404A motion to transfer as opposed to a 1406 motion to dismiss under 12b3?

[00:07:34] Speaker 00:
I don't think it would be different in the outcome.

[00:07:37] Speaker 04:
It would be maybe... Let me lay the scenario out for you and see if you still agree.

[00:07:46] Speaker 04:
So the motion comes in The movement says, number one, you have venue here, but it's much more convenient for the parties and everybody else to have venue in a different district.

[00:08:04] Speaker 04:
But since we're here, why don't you dismiss on 12B6?

[00:08:10] Speaker 04:
Do you think it would be appropriate for the judge to say, well...

[00:08:15] Speaker 04:
yeah, I'm going to transfer it, but before it leaves the clerk's office, I'm going to dismiss on the merits under 12b-6. Would that be appropriate?

[00:08:26] Speaker 00:
I think if it occurred in exactly that scenario, I think it seems just very odd in that scenario, because it seems, you know, just... Thinking through, if I were the district court, I would take a look at the 12B reason for dismissal before even looking at transfer.

[00:08:52] Speaker 04:
That being said... Yeah, but we have cases and there are other cases in which courts have said just the opposite. Said you really ought to look, if it's a 1404A, you really ought to look at transfer first. Don't get it in the merits. So I think you'd be, particularly in the Fifth Circuit, I think you would be on the wrong side of where the court is on that.

[00:09:16] Speaker 00:
Well, I do think that it would be appropriate to look at the Rule 12 after finding that this should be transferred for convenience. And then once looking at the Rule 12, if, like this case, which the court said the claims are strikingly similar to the claims found ineligible in Alice, I think the court could then say, well...

[00:09:40] Speaker 00:
Sure, in a perfect world, transfer is warranted here on convenience, but because of this 12b-6 issue, I'm not going to burden the transferee court with, as Judge Posner has said, a sure loser like we have here where claims are strikingly similar to the claims in Alice.

[00:10:04] Speaker 01:
And that decision would be subject to an abuse of discretion review? Yes, Your Honor.

[00:10:13] Speaker 02:
What are the limiting principles here with regard to what kind of issues the district court can take up in her discretion in connection with the vending motion? For example, what if there were an early summary judgment motion based on indefiniteness, which you can sort of see on the face of the claim, that there's this word that the Federal Circuit has six times, or there's this group of words that the Federal Circuit has six opinions saying are too nebulous.

[00:10:45] Speaker 02:
All you have to do is flip to the back, see there's no lexicography, we'll stop. Is that also in the bucket of what the District Court has discretion to do in this context?

[00:10:54] Speaker 00:
I don't think the case law is clear on kind of what are the limiting principles here. What we see in the case law typically is simultaneous motions to dismiss. I think if you had an early summary judgment motion hanging out there as well, I think that could be potentially stepping into an abuse of discretion for the court to find venue improper and then say, well, now I'm going to go look at this separate motion that was filed separately from the venue motion.

[00:11:25] Speaker 00:
I think that might be where, you know, some limiting principles might be kind of coming into play. But here...

[00:11:32] Speaker 02:
Go ahead. I have the same question. But another limiting principle is also sort of you get an instinct about what the court is being asked to do. Now, maybe eligibility was pretty straightforward here because we've done this before so many cases. But there are other eligibility cases that it can be quite complicated, either at step one or at step two.

[00:11:58] Speaker 00:
Right.

[00:11:59] Speaker 02:
So is this just we make a visceral determination? Yeah, this is the kind of thing one could just do pretty straightforwardly on the papers. That's why I'm worrying about limiting principles here.

[00:12:09] Speaker 00:
Sure. I think it comes back to it's within the discretion of the district court. And what we know here on this record is that the court found that these claims were so similar to those in Alice that it was not worth, in judicial economy purposes, burdening another court with these claims. I think when you have a scenario where maybe it is a tougher court, decision on the section 101 or any other reason for dismissal I think that might be where within the court's discretion the court might say okay I'm going to leave this more difficult issue for the transferee court and simply transfer or dismiss without prejudice on the venue issue no you've covered my question thank you if there are no further questions I will rebut myself no I'm just kidding We request that the judgment be affirmed in full.

[00:13:10] Speaker 00:
Thank you for your time.