[00:00:00] Speaker 00: Our next case for arguing is 24-1831, iron source versus digital turbine. [00:00:08] Speaker 00: Mr. Ackerman, please proceed when you're ready. [00:00:11] Speaker 03: Good morning, Your Honors. [00:00:12] Speaker 03: May it please the Court? [00:00:14] Speaker 03: My name is Paul Ackerman, and I represent the appellant in this case, iron source, in its appeal from the PTAB, challenging the Board's erroneous findings that the substitute claims presented by digital turbine during a post-grant review are both patent-eligible and patentable. [00:00:30] Speaker 03: The appeal presents three distinct and independent grounds why we believe the board incorrectly determined that the substitute claims are entitled to issue. [00:00:38] Speaker 02: But the first question is standing. [00:00:39] Speaker 02: The first question is standing, Your Honor. [00:00:40] Speaker 02: The first question is standing, Your Honor. [00:00:42] Speaker 02: The first question is standing, Your Honor. [00:00:43] Speaker 02: The first question is standing, Your Honor. [00:00:45] Speaker 02: The first question is standing, Your Honor. [00:00:46] Speaker 02: The first question is standing, Your Honor. [00:00:47] Speaker 02: The first question is standing, Your Honor. [00:00:48] Speaker 03: The first question is standing, Your Honor. [00:00:50] Speaker 03: The first question is standing, Your Honor. [00:00:51] Speaker 03: The first question is standing, Your Honor. [00:00:53] Speaker 03: The first question is standing, Your Honor. [00:00:54] Speaker 03: The first question is standing, Your Honor. [00:00:56] Speaker 03: The first question is standing, Your Honor. [00:00:57] Speaker 03: The first question is standing, Your Honor. [00:00:58] Speaker 03: The first question is standing, Your Honor. [00:00:59] Speaker 03: The first question is standing, Your Honor. [00:01:01] Speaker 03: The first question is standing, Your Honor. [00:01:02] Speaker 03: The first question is standing, Your Honor. [00:01:03] Speaker 03: The first question is standing, Your Honor. [00:01:04] Speaker 03: The first question is standing, Your Honor. [00:01:05] Speaker 03: The first question is standing, Your Honor. [00:01:06] Speaker 03: The first question is standing, Your Honor. [00:01:07] Speaker 03: It clearly points out that in that context, we accept the declared statements of injury in fact as true, and we also emphasize that under the relaxed standing of, or the relaxed standards of standing from spokio, the real emphasis in this procedural context is whether there's an injury in fact to the person who's appealing. [00:01:33] Speaker 03: the London Declaration that was submitted in our opening brief makes it. [00:01:39] Speaker 01: It appears to me that much of your case just stands on speculation on things that could happen. [00:01:47] Speaker 01: Show me something that's really concrete, a concrete injury. [00:01:50] Speaker 03: Yeah, the concrete injury, Your Honor, is that our client has a product that they have not only consumed, but they have developed a fully functional product [00:02:00] Speaker 03: that is now taken off the market because of the risk of infringement liability. [00:02:06] Speaker 03: Before they took it off the market, they hollowed the product a bit by removing features because of the patents in suits and offered contractual indemnity to customers, creating a more financial hardship. [00:02:20] Speaker 03: So the injury, in fact, is very clear. [00:02:24] Speaker 03: a product that took expensive time and energy to develop is not being sold or marketed because there is a threat in the marketplace of an infringement suit. [00:02:35] Speaker 00: Okay, the last part seems critical, right? [00:02:39] Speaker 00: There has to be a threat in the marketplace of an infringement suit, or at least a reasonable apprehension thereof, somehow. [00:02:48] Speaker 03: And again, I would say that the reasonable apprehension is actually the reflective law of the pre-general electric type of framing of the issue. [00:03:00] Speaker 03: We do have a reasonable apprehension of suit here, even though the London Declaration has that coming through communications with that customer. [00:03:14] Speaker 03: Our customer was informed by Digital Turbine that their patents would prevent this product from being on the market. [00:03:22] Speaker 00: Not their patents, plural, but a particular patent whose claims were invalidated and gone. [00:03:31] Speaker 00: Correct. [00:03:32] Speaker 00: So how does that [00:03:35] Speaker 00: create a threat for a different patent. [00:03:37] Speaker 00: I mean, certainly you would agree with me that if I threatened your client about patent or bicycle, and later on I acquired a different patent, a different set of claims that may have some meaningful differences between the claims I asserted against you or Ouellette threatened you with and those original claims were all validated. [00:04:00] Speaker 00: There has to be established connection [00:04:04] Speaker 00: because the thing that your customer was told related to a patent that was invalidated. [00:04:10] Speaker 00: So there's no question they can't be threatening you with that, right? [00:04:14] Speaker 00: Your client cannot possibly feel threatened to have to take things off the market now in light of the invalid patent, correct? [00:04:26] Speaker 03: Well, yes, but I respectfully disagree because of the procedural posture of the substitute claims that are before this panel. [00:04:35] Speaker 03: The 951 patent, that was the source of the original threat, is now invalid. [00:04:41] Speaker 03: The claims of the 256 patents that the board found to be invalid because of flight of Alstoppel were broader than the 951 patent. [00:04:50] Speaker 03: Almost the same, but they broadened a couple of claim limitations. [00:04:53] Speaker 03: No difference in the perceived threat from this broader claim. [00:04:57] Speaker 03: And now we have the substitute claims, which have two minor changes in language and London Declaration. [00:05:04] Speaker 00: But here's the problem. [00:05:05] Speaker 00: You haven't demonstrated at all how the now substituted, narrower claims would [00:05:13] Speaker 00: how is it why your client will feel under apprehension of suit. [00:05:18] Speaker 00: You haven't done anything to tease out those new claim limitations and explain how they may or may not read on the product your client seeks to be able to sell. [00:05:29] Speaker 00: And that's a problem for me. [00:05:31] Speaker 03: uh... uh... uh... uh... uh... uh... uh... uh... uh... [00:05:54] Speaker 03: The party under threat of infringement need not concede infringement, nor to establish standing. [00:06:01] Speaker 00: And again, the GE case... So what is it he said on paragraph 29, I'm there right now, that specifically connected that for me between this completely different claim with two new narrowing limitations and [00:06:19] Speaker 00: You know, how did you say, for example, this new claim is insubstantially different, those two limitations don't affect the product, but what did you say that would do something to make me feel more comfortable that you're not easier trying to appeal a claim that you really aren't under any real perceived threat of impinging? [00:06:42] Speaker 03: Yeah, I think in 2009, [00:06:46] Speaker 03: Mr. London points out that the substitute claims of the 256 patents ought to be patented, but presented direct and continuing impediment to IronSource's plans to provide potential and existing customers with the oral product. [00:06:58] Speaker 03: And then they continue that those substitute claims, IronSource continues to suffer injuries. [00:07:04] Speaker 03: And if we look at the nature of the claim amendments, [00:07:08] Speaker 03: It is a minor change in an eligibility check. [00:07:13] Speaker 03: And again, GE is informative. [00:07:16] Speaker 03: In the GE case, this court found that [00:07:22] Speaker 03: The affidavit only obliquely referenced the specific limitations, but did still identify a current threat that was sufficient. [00:07:33] Speaker 03: And in fact, in the GE case, there was zero threat from Latia. [00:07:38] Speaker 02: Counsel, even if you were standing, why aren't you collaboratively stopped? [00:07:43] Speaker 02: Well, the Patent Office found you were collaboratively stopped. [00:07:47] Speaker 03: On the one issue on collateral stoppage that the board discussed, that was on the 101 issue rather, Fidgeral Turbine actually conceded that the way the board addressed its decision, it could not be and did not raise collateral stoppage for the substitute claims that were in play because, according to Fidgeral Turbine, those claims are patently distinct from the claims that were addressed in the 951 decision. [00:08:16] Speaker 03: Even if they didn't concede that, Your Honor, the procedural posture on the 101 issue would make it so collateral establish should not attach against our position on 101 claims. [00:08:27] Speaker 03: In the 951 proceeding, all claims were invalidated on prior art. [00:08:33] Speaker 03: We had no basis to appeal the 101 decision. [00:08:37] Speaker 03: We would have had to wait for our reply brief. [00:08:39] Speaker 03: It was not an issue that could be first appealed. [00:08:41] Speaker 03: And when Ironsource voluntarily withdrew their appeal, they deprived us the opportunity to appeal the board's decision. [00:08:49] Speaker 03: But again, even Digital Turbine has conceded that this is not an estoppel issue on 101. [00:09:00] Speaker 03: Going to the notes, our papers address them in great detail, and I'm not sure I can do justice to them in the six minutes that I have to argue. [00:09:09] Speaker 03: But if we look at the written description argument, there are two limitations. [00:09:16] Speaker 03: I want to focus on what's called the query limitation of the papers. [00:09:21] Speaker 03: in the revised motion to amend digital turbine and edited language, querying an address repository for a network address of an installation file for said first software application and receiving the network address in response to the query. [00:09:38] Speaker 03: The plain language of this plain limitation has two specific requirements. [00:09:42] Speaker 03: One, you're going to make a query that is specifically for a network address of an installation file for the set software application. [00:09:51] Speaker 03: And then in response to that query, you're going to receive the network address. [00:09:56] Speaker 03: The formula of this limitation by Digital Turbine was very specific, and it was intended to address its perceived vision of white space in the prior art. [00:10:06] Speaker 03: They argued that Pasha does not disclose the installation client querying an address repository for any network address of an installation file, the exact same language, for a circular application. [00:10:19] Speaker 03: They further argued that even if they were to receive a query, [00:10:24] Speaker 03: The query would still not be for a network address, it would be for a download page. [00:10:29] Speaker 03: They found specific patentable weight to the language for a network address of an installation file. [00:10:36] Speaker 03: The problem is that they found this in the silence of their own disclosure. [00:10:41] Speaker 03: And silence is not possession of an invention. [00:10:45] Speaker 03: Counsel for DT was in possession of an argument to try to find patentability, but that is not possession of an invention. [00:10:53] Speaker 03: This is very factually analogous to the Moles case, where plain language was added to a reflow solder process. [00:11:02] Speaker 03: And at the time in the art, a person of skill in the art might have defined that that would have been a way of attaching. [00:11:09] Speaker 03: But the silence in the disclosure was determinative. [00:11:14] Speaker 03: Just because something is obvious doesn't mean that there is possession of an invention. [00:11:19] Speaker 03: And here, where you have an applicant adding specific claim limitations, arguing that they're not in the prior art, and those very same limitations, there's only silence on a broad, broad way that something could be accomplished. [00:11:34] Speaker 03: That's not the question of a specific claim limitation, but it's found in the remote inter-substitute claims. [00:11:42] Speaker 03: I would like to address the 101 issue. [00:11:45] Speaker 03: I'm skipping around on substantive issues. [00:11:47] Speaker 03: If there's questions, please ask. [00:11:51] Speaker 03: Substantively, the board erred in finding that these claims were, indeed, directed to patent-eligible subject matter. [00:12:00] Speaker 03: Starting with step one of ALICE, we would argue that the claims are directed to an abstract concept of downloading in the background while maintaining the user experience in the program. [00:12:12] Speaker 03: The board expressly found that the claims are directed to downloading and installing an application in the background instead of directing the user to an app store, thereby maintaining user experience with the foreground application. [00:12:27] Speaker 03: Despite being somewhat critical of our framing of the abstract concept as being too general, they essentially adopted our language, but then went on to say that downloading in the background in this matter is not an abstract concept. [00:12:40] Speaker 03: We respectfully disagree with the board's findings. [00:12:43] Speaker 03: This is exactly a concept that was known for years. [00:12:47] Speaker 03: You download in the background while you can do something else in the foreground. [00:12:50] Speaker 03: There is nothing new in the computer arts about it. [00:12:53] Speaker 03: It was set forth in the record that Windows operating systems and others have done this for an eternity. [00:12:59] Speaker 03: And despite finding that the claims were not directed to an abstract concept, the work has been done. [00:13:04] Speaker 00: uh... uh... uh... uh... uh... uh... [00:13:26] Speaker 00: Please proceed. [00:13:27] Speaker 04: Good morning, Your Honor. [00:13:29] Speaker 04: It is the court time to go in for the FOE. [00:13:32] Speaker 04: So this case presents a classic request for advisory opinion. [00:13:36] Speaker 04: IronSource is a competitor in the field, and I would like the court to advise it on the new substitute claims before it decides whether to engage in any activity that implicates them, whether that's restarting an old product, beginning a new product. [00:13:52] Speaker 04: They have shown no controversy, they've shown no contact between the parties concerning these claims or concerning the invalidated claims. [00:14:01] Speaker 04: For digital turbines conduct, we have only a statement that is alleged to have made from an unidentified person five years ago at digital turbines. [00:14:13] Speaker 02: So dropping a product isn't sufficient. [00:14:18] Speaker 02: If they had continued with it, there would have been a threat. [00:14:21] Speaker 02: But if they drop the product, it's gone. [00:14:24] Speaker 02: So it's made for their outstanding. [00:14:27] Speaker 02: Is that the case with you? [00:14:29] Speaker 04: I wouldn't phrase it that way because I think the key thing that is missing there is there is no connection in this record between their prior product [00:14:38] Speaker 04: and either the predecessor claims that were validated or the new substitute claims. [00:14:44] Speaker 04: And that is a hard and fast requirement in this court's recent decisions in appeals from PGRs and IPRs, that there needs to be some showing of a concrete [00:14:55] Speaker 04: plan to engage in activity that risks infringement suit. [00:15:00] Speaker 04: And in Platinum Optics and in Insight and other decisions as well, the court has said that the dispute needs to be about the claims that this court is going to adjudicate. [00:15:14] Speaker 04: Now here we are missing that, because the only thing that Mr. London's declaration says about the predecessor product is that it is a sandboxed environment. [00:15:22] Speaker 04: There's four paragraphs in that, or four bullet points in that declaration, and it says click to install as it existed five years ago was an ability to avoid an app store [00:15:33] Speaker 04: where you click on the advertising link in app one and you will have a download from iron sources sandbox servers. [00:15:42] Speaker 04: So there is not even in that description any admission that there's a background install going on. [00:15:49] Speaker 04: But put all of that aside, there is absolutely nothing in this declaration that talks about the eligibility check or the querying limitation, which are significant narrowing limitations that give these substitute claims a specific implementation. [00:16:05] Speaker 04: All that [00:16:10] Speaker 04: Let me circle back there, though, and say there is a further point that Your Honor hit on, which is they did select the product. [00:16:18] Speaker 04: And the question for this Court now is, what is the dispute? [00:16:23] Speaker 04: And there is no dispute if the product has been stopped and there is no activity, more concrete plan for activity. [00:16:30] Speaker 04: And let me just put to the clear the hypothetical here, and that is what they could have done in that declaration. [00:16:37] Speaker 04: They had a free shot after the proceedings below to do whatever they wanted. [00:16:43] Speaker 04: Not to say whatever they wanted, of course, but to do whatever they wanted. [00:16:46] Speaker 04: They could have convened a meeting at Iron Source and approved a product plan and allocated an initial investment and told you all about that and told you that while not admitting infringement, there are aspects of that planned product that we have taken concrete steps towards that would implicate the claims in such a way that Digital Turbine might not withstand. [00:17:10] Speaker 04: In fact, we've never said anything to them before asserting infringement. [00:17:14] Speaker 04: They did none of that. [00:17:15] Speaker 04: All they did was say they have a desire, and that's the specific language from the declaration, they have a desire to introduce some sort of unspecified product in the future. [00:17:30] Speaker 00: And that is... I don't think that's a fair characterization at all. [00:17:34] Speaker 00: They said they want to reintroduce the C2I functionality. [00:17:38] Speaker 00: that's what the declaration expressly says. [00:17:40] Speaker 00: We want to reuse the C2I functionality and these new claims are preventing us from doing that. [00:17:47] Speaker 00: So I don't know. [00:17:50] Speaker 00: I mean, I feel like that's a pretty good case, but this feels, your current statements feel like a pretty big overreach to me. [00:17:59] Speaker 04: So let me take that paragraph in detail. [00:18:04] Speaker 04: There's no specific fact supporting that conclusion, right? [00:18:08] Speaker 04: And the reason is there's no actual plan for what they're going to release. [00:18:13] Speaker 04: We have five years. [00:18:14] Speaker 00: They had a product with the C2I functionality. [00:18:18] Speaker 00: They say we would like to reincorporate it and relaunch it that doesn't mean a play in that's like I've got some old shoes in the closet I've been on my own of tomorrow. [00:18:27] Speaker 00: Well, you know, that's not really I don't I don't I don't get this. [00:18:31] Speaker 04: Yeah sure. [00:18:33] Speaker 04: Yeah [00:18:33] Speaker 04: And I would say that we are five years on in a rapidly moving technological environment. [00:18:38] Speaker 04: The fact that they wish to reintroduce some C2I functionality does not mean they are going to pull the code off a shelf and re-implement it exactly as it was five years ago. [00:18:49] Speaker 04: Or it might. [00:18:50] Speaker 00: The point is, they haven't told you what they're going to do, and they haven't told you how it implicates the claims, and it's your... You think they need to tell me from a technological... You don't think it's enough that they say, we want to reintroduce the C2I technology that we previously had on the product, but we can't because of this potential threat of infringement. [00:19:12] Speaker 00: I mean, you're fighting me on an issue that [00:19:15] Speaker 00: I don't think you could probably win on, but you can keep going on that issue. [00:19:18] Speaker 00: But I feel like you're sort of missing the boat because the bigger concern isn't the C2I functionality. [00:19:25] Speaker 00: It's the declaration's failure to link it to the new claim limitations. [00:19:29] Speaker 00: So if you'd like to jump ship, because let me tell you, it's sinking. [00:19:33] Speaker 00: So if you want to jump ship, there's a life raft over here. [00:19:36] Speaker 00: I'm kind of floating it right out there, so yeah. [00:19:38] Speaker 04: I understand, Laura, and that's where I was going, is that there's no connection. [00:19:44] Speaker 00: You're doing it by swimming in the wrong direction, my friend. [00:19:47] Speaker 04: Fair enough. [00:19:49] Speaker 04: I'm not abandoning that, like, that's not a specific plan where there were concrete steps that they had to prove it. [00:19:55] Speaker 04: It's a mere desire to reintroduce something. [00:19:57] Speaker 04: But there's no connection to the claims that this court was asked to adjudicate, and that's the failure. [00:20:01] Speaker 04: And that's the failure. [00:20:03] Speaker 01: Why don't you address paragraph 29 of the London Declaration, which is what they brought up? [00:20:10] Speaker 04: Sure. [00:20:10] Speaker 04: It says at most that the fact that the substitute claims have been deemed patentable prevents us from reintroducing the CTI features despite a desire to do so. [00:20:23] Speaker 04: There is no fact [00:20:25] Speaker 04: on which the court can say, yes, the claims do impose some sort of a blockage or dispute about whether CTI meets the new limitations. [00:20:40] Speaker 04: That was available to them to say if it was part of their product and part of their plan, and they did not. [00:20:46] Speaker 04: And that is the key point. [00:20:50] Speaker 04: that led to the court's decisions in platinum optics and insight. [00:20:59] Speaker 04: The rules in those cases say you need to explain how the concrete plan actually implicates the claims in a way that makes this an actual controversy. [00:21:11] Speaker 04: Again, here, they have a desire to do something, and conceiving Judge Moore's point that there's something on the shelf that's five years old that maybe they could do, we don't know whether that has eligibility check, we don't know [00:21:28] Speaker 04: whether that has a querying limitation. [00:21:31] Speaker 04: We don't even know if that's a background install product, because those facts are not correct. [00:21:35] Speaker 01: Look at what it does say. [00:21:36] Speaker 01: It does directly link the 256 patent. [00:21:41] Speaker 01: And it says that the 62 claims over the 256 patent have been deemed patented by the P. Prevent iron source from reintroducing the C21 features despite a desire to do so. [00:21:53] Speaker 01: Customers will continue to have the same view it's talking about as they had of the [00:21:58] Speaker 01: the other, the other bench. [00:22:04] Speaker 04: I grant you that he says that. [00:22:07] Speaker 04: My point is only the court has required more, which is you need to explain how. [00:22:13] Speaker 04: There needs to be some factual basis on which the court can agree that there is an impediment to that product, that actual product with a specific plan that implicates the claims at issue. [00:22:27] Speaker 04: Otherwise, there's no controversy. [00:22:29] Speaker 04: The fact that he offers that conclusion does not give the court any basis to scrutinize here whether it has actual jurisdiction or not. [00:22:39] Speaker 04: It's a statement in the air. [00:22:41] Speaker 02: Ultimately, thank goodness for life rafts. [00:22:44] Speaker 04: Indeed. [00:22:45] Speaker 04: Indeed. [00:22:49] Speaker 04: But I mean, that is the most obvious point that can be made here, right? [00:22:57] Speaker 04: It is shot through all of the court's recent decisions in standing for PGR and IPR appeals. [00:23:02] Speaker 04: There has to be something tied to the clients, and there is not yet. [00:23:07] Speaker 04: I'll turn to substantive issues, if you would like to hear on those. [00:23:10] Speaker 04: And I'll address them as my colleague did. [00:23:15] Speaker 04: So with respect to the clarion annotation, again, for all of these issues, we're on a substantial evidence standard. [00:23:22] Speaker 04: And that's the question as to whether the board had substantial evidence to find the facts that it did. [00:23:28] Speaker 04: With respect to the clarion annotation, [00:23:31] Speaker 04: The third said this is a near verbatim copying of the specification into the claim, which it is. [00:23:42] Speaker 04: The support in the specification says that the installation client [00:23:47] Speaker 04: obtains address information, e.g., a link to the installation file by one of, and one of the examples is querying an address repository, e.g., on an external server, over the network and receiving the address information in response to the query. [00:24:04] Speaker 04: Now, the argument on a PIA is simply that a skilled artisan would not understand [00:24:14] Speaker 04: what the query was specifically. [00:24:18] Speaker 04: Knowing that you're querying an address repository and you are receiving that address information, the skilled artisan would not know that that query is for the address information in the database. [00:24:30] Speaker 04: That there is not a gap there. [00:24:33] Speaker 04: And even if there were a gap, there is testimony in the record from Dr. Mao that a skilled artisan would understand what the query is for. [00:24:43] Speaker 04: And that's at appendix 3940 and 41. [00:24:48] Speaker 04: in the context of his claim construction argument, where he's saying the address repository itself will be understood as network-connected storage that provides a network address of an installation file in response to the query for a network address of such installation file. [00:25:04] Speaker 02: Why don't you address eligibility? [00:25:07] Speaker 02: That's such an issue these days. [00:25:09] Speaker 04: Yeah, I understood, Your Honor. [00:25:12] Speaker 04: And with respect to 101, I think, again, here, the easy way to resolve this case is at step two, based on the factual determinations made by the board. [00:25:23] Speaker 04: There is – we think these claims are dead on for the DDR case in that they are not directed towards installation abstractly or background installation abstractly, but these new substitute claims have a specific implementation. [00:25:41] Speaker 04: And that's using an installation client pre-installed on the device that performs an eligibility check [00:25:47] Speaker 04: of the installed application before installing a new application and querying the address repository to find the application data that you wish to install. [00:26:01] Speaker 04: But even if the support disagrees, there's at least a question about whether those limitations are conventional, because the specification does not say that the eligibility check is conventional, because it isn't. [00:26:14] Speaker 04: A token-based eligibility check to check the eligibility of the application already installed on the device was new and unconventional. [00:26:28] Speaker 04: And thus the board was entitled to... Isn't all that written in by software? [00:26:36] Speaker 04: Well, you know, these are all software functions. [00:26:41] Speaker 04: That's correct. [00:26:42] Speaker 04: And we're describing an architecture of software that has different types of functions. [00:26:49] Speaker 04: But that's where the specificity comes in. [00:26:53] Speaker 04: There are many ways you could have a background installed. [00:26:56] Speaker 04: But this time, there's a particular way that you do a background install, one of the installation client. [00:27:01] Speaker 04: is invoked in a certain way and performs this check and queries and address. [00:27:06] Speaker 04: And I would say finally with respect to 101, [00:27:12] Speaker 04: So I don't think they even raised a factual issue. [00:27:18] Speaker 04: If you look at their citations in reply at 27, they've sort of both cited to their experts testimony about all sorts of subjects in the PGR. [00:27:29] Speaker 04: But if you bear down on those to the step two testimony, they have a bare conclusion [00:27:36] Speaker 04: that an eligibility check is conventional. [00:27:42] Speaker 04: It's just an unsupported statement by their expert with no supporting facts offered. [00:27:48] Speaker 04: They have also cited Appendix 2579 through 80, which is testimony about disclosure by Pasha. [00:27:58] Speaker 04: Now, we, of course, submit that there was no disclosure by Pasha because Pasha discusses user permissions for the application you're installing. [00:28:07] Speaker 04: But even if there was, under this book's precedent, mere disclosure by a single reference is not – is not proof of conventionality. [00:28:17] Speaker 04: Conventionality requires more than mere disclosure. [00:28:20] Speaker 04: It requires that a technology actually be known in conventional [00:28:24] Speaker 04: out in the world through multiple systems or references. [00:28:29] Speaker 04: With that, thank you, guys. [00:28:41] Speaker 03: So I would like to address counsel's continued reliance on the platinum optics case with respect to standing, and respectfully suggest that the better case that this court should be looking at is the GE versus Raytheon case. [00:28:56] Speaker 03: In platinum optics, there was a dismissal of a patent with prejudice. [00:29:00] Speaker 03: That patent could not be sued again. [00:29:01] Speaker 03: The future products were completely conceptualized. [00:29:05] Speaker 03: They did not put a product on the back shelf. [00:29:08] Speaker 03: And in the GE case, [00:29:11] Speaker 03: We have a specific allegation that the substitute claims are causing the injury in fact that is more than sufficient under GE. [00:29:19] Speaker 03: And in fact, in the GE case, there was absolutely no threat from Raytheon in the record. [00:29:25] Speaker 03: It was GE's perception that caused them to have an injury in fact. [00:29:30] Speaker 03: On the 101 issue, [00:29:35] Speaker 03: The board, like I started talking about, had made an error in finding that there was no abstract concept. [00:29:42] Speaker 03: And then in trying to say that there was an inventive step, or in part two, that there was something that saved it, they said that the claim invention invokes the installation client to install the app in the background without interrupting user interaction in the foreground. [00:29:59] Speaker 03: That's on appendix 56. [00:30:02] Speaker 03: They're basically restating the abstract concept as the inventive idea. [00:30:07] Speaker 03: And with respect to the changing of the ordering that the board also relied on, kind of looking at Bascom, the order that they cite, which is invoking the installation client and using that if it's available, otherwise going to the app store, [00:30:22] Speaker 03: That is clearly disclosed in PASHA. [00:30:25] Speaker 03: It was an anticipatory reference that clearly has those. [00:30:28] Speaker 03: And then when we look at the new limitations in the substitute claims, the eligibility check was explained by Dr. Adleroff as being conventional. [00:30:38] Speaker 03: The use of tokens, conventional. [00:30:40] Speaker 01: What's your best argument that ties the London Declaration to the substitute claims? [00:30:45] Speaker 03: Sure. [00:30:47] Speaker 03: Paragraphs 24, 29, and 30 expressly reference the substitute claims as a whole, even though we don't address specific limitations. [00:30:56] Speaker 03: And GE does not require limitation by limitation, exploration, and oblique references to the claims are sufficient. [00:31:05] Speaker 03: Okay. [00:31:05] Speaker 03: Thank you, Your Honor. [00:31:06] Speaker 00: Thank you, First Counsel, which will be received under submission.