[00:00:01] Speaker 04: Our next case is Receivership of State of Audio Science, EVE versus Google LLC. [00:00:09] Speaker 04: Mr. Patio, you have reserved four minutes of time for rebuttal. [00:00:14] Speaker 04: Yes, Your Honor. [00:00:19] Speaker 01: May it please the court, Mike Petillo, for appellant audience science. [00:00:24] Speaker 01: The claims in this case are patent eligible because they provide a specific solution to an internet-centric problem. [00:00:30] Speaker 01: They recite a method that improves technology for presenting advertisements on the internet using technology that only exists in the realm of computers. [00:00:39] Speaker 00: Where is the specificity? [00:00:40] Speaker 00: Can you show us? [00:00:42] Speaker 01: Yes, Your Honor. [00:00:45] Speaker 01: I think the claim is really nothing but specificity. [00:00:50] Speaker 01: It's an integrated process that improves on the priority in several ways. [00:00:55] Speaker 01: The first part goes to how to select [00:00:58] Speaker 01: how to identify a set of ads that are relevant to a user. [00:01:03] Speaker 01: The second part involves how to choose from among those ads which one to select. [00:01:08] Speaker 01: And it does so in a very specific way. [00:01:11] Speaker 01: It starts by taking, when the system receives a request for a user to visit a page on the publisher's website, it adds that to a page history that the user has already accumulated with the publisher. [00:01:26] Speaker 01: And beforehand, all of the pages on the publisher's website and all of the ads that could potentially be displayed have been assigned keywords that relate to the topic of the page and the topic of the advertisements. [00:01:45] Speaker 01: So once this comes in and once you get that request, it adds that page [00:01:50] Speaker 01: that takes into account the keywords that are identified for the current context of what the user is looking at. [00:01:56] Speaker 01: It combines those with keywords relating to all of the sites that the user has been visiting. [00:02:02] Speaker 01: And in that way, you capture both what is on the user's mind at that time and also account for historically what have they been looking at that's been interesting them. [00:02:11] Speaker 03: And then you assign maybe some numbers to particular ads according to in some [00:02:18] Speaker 03: undefined metric a particular ad has been effective for? [00:02:25] Speaker 01: Well, yeah, after you have collected the ads, then the next step is that to each of those identified ad messages, you attribute a selection weighting reflecting the advertisement's relevant performance. [00:02:38] Speaker 01: And that score reflects the extent to which the advertising message has generated revenue in the past. [00:02:44] Speaker 01: So you have weighting values. [00:02:46] Speaker 01: And then you use those weighting values to select one of those advertisements probabilistically based on the relative weighting that has been given. [00:02:57] Speaker 00: Is there any specificity in the claims about that last step, the performance rating of the ads? [00:03:04] Speaker 00: And if so, where do I see that specificity in the claims? [00:03:11] Speaker 01: it's the selection wedding is based on its relative performance to the extent to which the advertising messages generated revenue and so it's it's a [00:03:21] Speaker 01: very specific metric that it says we're looking at. [00:03:24] Speaker 00: Let me ask you this. [00:03:25] Speaker 00: You rely heavily on, I think it's Weisner, correct? [00:03:29] Speaker 00: Yes. [00:03:29] Speaker 00: I'm sure you know some of those claims were found to survive the motion at issue there, but some were not. [00:03:36] Speaker 00: And I think the court pointed out the ones that didn't were the ones that were not specific enough, at least in part. [00:03:43] Speaker 00: Why don't you fall, why don't your claims fall into that ladder bucket, the not specific enough? [00:03:49] Speaker 01: Well, I mean, if we're talking about the performance score specifically, is that the issue? [00:03:53] Speaker 00: That would be one of them. [00:03:54] Speaker 00: I think the argument we're going to hear is that all three of the things he said are the claims are specific enough. [00:03:59] Speaker 01: So the fact is you have defined a very specific category. [00:04:04] Speaker 01: It's performance based on revenue. [00:04:07] Speaker 01: And the specification tells you various ways that you can define it, various different ways that you can do it. [00:04:13] Speaker 01: And the fact that there's a little bit of some play and some flexibility in what you can select [00:04:19] Speaker 01: is not fatal. [00:04:20] Speaker 01: If you look at the McGrow case, that case was improving computer animation based on a set of rules. [00:04:29] Speaker 01: And those rules were defined in terms of morph weight sets as a function of, I believe it was pace of speech and maybe one other factor. [00:04:38] Speaker 01: And the other side argued, well, that's abstract, because you've just defined a category of rules. [00:04:44] Speaker 01: And it's up to the user to decide, to identify those rules themselves. [00:04:50] Speaker 01: And the court said no. [00:04:51] Speaker 01: They defined the genus with sufficient specificity that limits it to a specific category. [00:04:58] Speaker 01: It doesn't preempt the use of every other potential field that could be out there. [00:05:03] Speaker 01: And once you sufficiently define the genus, then you may have other questions on 112 that relate to those. [00:05:12] Speaker 01: But that is specific enough to render it non-abstract. [00:05:16] Speaker 01: And that's the exact same thing here. [00:05:18] Speaker 01: The fact that the claim very specifically defines a performance score based on the extent to which it's generated revenue in the past, the fact that it gives you a couple different ways that you might choose to define it [00:05:31] Speaker 01: doesn't mean it's non-abstract. [00:05:34] Speaker 01: There's a little bit of flexibility to not render it non-abstract. [00:05:39] Speaker 03: You would agree that under the basic concepts at issue here, a judgment call is necessary as to whether there is enough specificity. [00:05:51] Speaker 01: I think there's always a judgment call as to whether there's enough specificity. [00:05:55] Speaker 03: I guess that would maybe be the point. [00:06:00] Speaker 03: Between a principal and a concrete application, you will always have a need to distinguish a degree of specificity in the concrete application, because words are being used, and words include or have some category built into them. [00:06:20] Speaker 03: Why is this not on what for you would be the wrong side of the line? [00:06:26] Speaker 03: Because just focusing on the performance score, there really isn't anything, I don't know, significantly more than what's inherent in what any advertiser is looking for. [00:06:40] Speaker 03: How much bang do I, or how much buck do I get for this? [00:06:43] Speaker 01: Well, I think there are a couple answers to that. [00:06:46] Speaker 01: One, I think what's important to recognize is it's not just [00:06:50] Speaker 01: assigning a performance score. [00:06:52] Speaker 01: It's what you do with the performance score that makes this more inventive. [00:06:57] Speaker 01: I mean, there may have been analogs in the past when people were trying to evaluate how something did. [00:07:03] Speaker 01: I don't think that they had the same tools, the same specificity. [00:07:07] Speaker 01: But the question is, what do you do with that? [00:07:09] Speaker 03: And what that does is it finds... Well, what does the claim say? [00:07:11] Speaker 03: The claim says you have performance score and then you select according to the weighting, which is just the performance score. [00:07:21] Speaker 03: What does that add to what you're doing with it? [00:07:24] Speaker 03: Well, selection and... Presumably, you, right, this doesn't even say select the ones that are better performing, but you know... Well, I think, so it says, [00:07:34] Speaker 01: selecting in accordance with the selection weightings. [00:07:38] Speaker 01: And what that means is, if you look at the spec, every time the spec discusses what that means to select in accordance with the selection weightings, it says that that's a random and probabilistic way of selecting. [00:07:55] Speaker 03: And the advantage is- And that's not, in fact, in the claims, right? [00:07:58] Speaker 01: I believe that is in the claims. [00:08:02] Speaker 01: Well, the specification, every time it refers to selection in accordance with weighting, it refers to it as randomly selecting. [00:08:09] Speaker 01: It's a concept in statistics. [00:08:11] Speaker 01: If you just were to Google selection based on weights, you'll see that the concept there, any time you're selecting based on weights in statistics, it's probabilistic and it's random. [00:08:22] Speaker 01: Now, there was no claim construction on this issue, so there's no basis to say that that excludes it. [00:08:29] Speaker 01: I think that if we had to go back and construe this, does this claim encompass it or not? [00:08:34] Speaker 01: There's a very good basis to believe skilled artisans would understand that selection in accordance with weighting means random selection. [00:08:42] Speaker 03: But the point is... What do you mean by random selection? [00:08:46] Speaker 01: It means that it selects it in accordance with its probability. [00:08:50] Speaker 01: If you have one that's been weighted 70, one that's been weighted 30, you might get either, but one has a 70% chance of being selected, the other has a 30% chance of being selected. [00:09:04] Speaker 01: So it means, and that's exactly the point, the inventive concept here is that by allowing different ads to be scored, not just going with the top score every time, which you can easily see, there might be a reason to do that. [00:09:18] Speaker 01: Someone might think that's the best approach. [00:09:20] Speaker 01: But by allowing a variety of different ads to be viewed by the user through this probabilistic weighting, it allows other [00:09:33] Speaker 01: adds a chance to be seen, which allows, and as the specification says, what that allows to do by showing you different ads, it allows the system to take new feedback into account and to adapt going forward and adapt to trends and user interests. [00:09:47] Speaker 00: Yeah. [00:09:47] Speaker 00: If I were to agree with the district court that at step one, your claims are directed to an abstract idea, what more have you said or added at step two that should have allowed you to survive this rule 12 motion anyway? [00:10:02] Speaker 01: Sure, so the question is, if you find you're directed to an abstract idea at step one, what do you add at step two? [00:10:10] Speaker 01: Is there an inventive concept that amounts to significantly more than trust? [00:10:15] Speaker 02: What do you have here? [00:10:16] Speaker 01: What we have is we have the significantly more that makes us than just a patent eligible application. [00:10:22] Speaker 01: It's not just saying do targeted advertising, because these [00:10:26] Speaker 01: principles could not be employed outside of computers. [00:10:29] Speaker 01: But it's not even just saying perform targeted advertising on a computer. [00:10:33] Speaker 01: It's doing it in a specific way. [00:10:35] Speaker 01: And if you look at the patent itself tells us that one of the advances comes to selecting in terms of how you select the ads that are relevant to the user. [00:10:45] Speaker 01: And it said in the prior art, there were two ways of doing this. [00:10:48] Speaker 01: There was a page context approach that presented you with an advertisement that related to the same subject of the page that you were on. [00:10:55] Speaker 01: and there was an approach based on user history, user browser history, and that approach would say, okay, you've come to our site a number of times. [00:11:03] Speaker 00: I think, yeah, I think we understand that. [00:11:05] Speaker 00: Let me just ask you, because we're getting low on time, I know, if you were given a chance to file an amended complaint, how would it look different than the current complaint? [00:11:16] Speaker 01: Well, honestly, what we would ask is, we would believe, it depends on your opinion, because below [00:11:23] Speaker 01: Below, we didn't think there was ever any evidence put forward of the conventionality of these claim steps, of whether they're generic, whether something is conventional under this court's law as a question of fact. [00:11:38] Speaker 01: And even though we're in 101, [00:11:40] Speaker 01: You know, burdens of proof still apply. [00:11:42] Speaker 01: And so what did Google point to below that said that these steps were just routine, conventional practice? [00:11:49] Speaker 00: So what I'm hearing is an amended complaint would have some factual allegations that your claims, whatever they are, were not conventional, well-understood, and routine. [00:11:59] Speaker 01: Is that correct? [00:12:00] Speaker 01: That's correct. [00:12:00] Speaker 01: That's correct. [00:12:01] Speaker 01: I mean, we believe there is plenty of proof in the patent, because the patent itself explains that its method of selecting relevant advertisements [00:12:08] Speaker 01: is an improvement over the prior art. [00:12:10] Speaker 01: It's a specific, inventive concept. [00:12:13] Speaker 01: It may seem simple to us now, but this was 2004. [00:12:18] Speaker 01: These were new concepts at the time. [00:12:20] Speaker 01: And it didn't just combine two pre-existing concepts. [00:12:24] Speaker 03: Did either side seek claim construction? [00:12:28] Speaker 03: That was accomplished already. [00:12:30] Speaker 03: Is that right? [00:12:30] Speaker 03: There were claim construction. [00:12:32] Speaker 01: There were claim constructions. [00:12:33] Speaker 03: We don't have any dispute here about either a claim construction or we didn't get an opportunity to get a claim construction that would change the 101 analysis. [00:12:45] Speaker 01: Well, we wouldn't have needed a claim construction on this issue of whether or not the claim recites random selection, because the district court never found that it didn't. [00:12:58] Speaker 01: The district court found three categories of claims were representative. [00:13:02] Speaker 03: And we don't dispute that here. [00:13:04] Speaker 01: We don't dispute that. [00:13:05] Speaker 01: But the issue is, what did it find? [00:13:06] Speaker 01: We think that those distinctions are irrelevant for purposes of 101, because the court didn't say that the distinctions turn on how [00:13:15] Speaker 01: the selection is performed in accordance with weighting, the distinctions turned on what was weighted. [00:13:22] Speaker 01: Some claims, you know, claim one says you weight the advertisements, another claim said you weight keywords, another one said you weight, it's escaping, but there were three different things that could be weighted. [00:13:36] Speaker 01: And so, but there was never any dispute that claim one wasn't representative of all the other claims in terms of random selection, and so we would have had no need [00:13:44] Speaker 01: Seek a claim construction below because that issue just wasn't it just wasn't disputed Okay, we thank you for your arguments will restore your rebuttal time it all right. [00:13:55] Speaker 02: Thank you Just remember Morning your honors and they please the court I [00:14:09] Speaker 02: The district court got it right here, and the analysis was far from a caricature. [00:14:15] Speaker 02: It made findings about what claims were representative, which audience science has not challenged for this court. [00:14:22] Speaker 02: And the district court then found that those representative claims were abstract and lacking in an inventive concept. [00:14:32] Speaker 02: It did so based on similar claims that were found ineligible by this court in the past. [00:14:40] Speaker 02: The abstract idea here is targeting advertisements to internet users to maximize revenue generation. [00:14:52] Speaker 02: And the specification is very clear here. [00:14:54] Speaker 04: Well, this case is more than just about targeted advertising. [00:14:59] Speaker 04: And I think the argument is that [00:15:01] Speaker 04: The performance score, that whole evaluation process, is an inventive concept that saves the patent at step two. [00:15:12] Speaker 04: Can you address that? [00:15:14] Speaker 02: Sure, Your Honor. [00:15:17] Speaker 02: In terms of the step two inquiry, and I agree that the inventive concept question or the performance score is really a step two question here. [00:15:24] Speaker 02: It's not really, I think, a part of the step one inquiry. [00:15:28] Speaker 02: But as to that, there is no specificity as to how these performance scores are being calculated. [00:15:36] Speaker 02: The specification goes so far as to say that the performance scores can be a function of a performance score, or they can be their own performance score. [00:15:45] Speaker 02: There's nothing in the claim itself that specifies how to do it. [00:15:50] Speaker 02: The claim is just generic. [00:15:52] Speaker 02: It says map, generally, ads or subjects or keywords, and then score them or weight them in some generic, generalized way. [00:16:03] Speaker 00: It says, of course, score them [00:16:05] Speaker 00: by indicating an extent to which they've generated revenue. [00:16:10] Speaker 00: And then the next step, of course, goes on to say selection weightings, which at least your friend on the other side says would be understood by one of ordinary skill in the art to at least call up random and probabilistic concepts. [00:16:24] Speaker 00: At a Rule 12 motion, what tells us that all of that is wrong? [00:16:28] Speaker 02: The specification itself and the fact that they never pleaded nor could they plead that the performance weighting was an inventive concept. [00:16:38] Speaker 00: Why couldn't they plead that? [00:16:39] Speaker 00: I grant you they did not plead it. [00:16:41] Speaker 00: Why could they not plead that? [00:16:42] Speaker 02: The performance score, if you look at the specification at the appendix, I think it's 31 and 32, there's discussion in column three and column six of the performance score. [00:16:54] Speaker 02: It's a very generalized discussion. [00:16:56] Speaker 02: It just says you can call up a performance score based on any number of things that were standard in the industry at the time. [00:17:04] Speaker 02: Things like the performance of the ad, the click through rate, the conversions. [00:17:09] Speaker 02: These are all standard things. [00:17:11] Speaker 02: They are not things that they purport to have even invented. [00:17:15] Speaker 02: There's nothing in the specification that suggests that those were new ways of waiting ads that they came up with. [00:17:22] Speaker 00: What about the ordered combination of using information about a user, information about an ad, and the performance score? [00:17:30] Speaker 00: What would prevent them from alleging that that ordered combination was not well understood conventional or routine in 2004? [00:17:40] Speaker 02: In terms of what would prevent them, I mean, I don't know what would prevent them. [00:17:43] Speaker 02: What I know is that they were not willing to do that. [00:17:46] Speaker 02: They were not willing to put forward a proposed amended complaint or argue that those things. [00:17:52] Speaker 00: Where can I see on the record their unwillingness? [00:17:54] Speaker 02: The fact that they never did it, Your Honor. [00:17:56] Speaker 00: I don't think that's enough. [00:17:58] Speaker 00: Under Ninth Circuit law, they weren't required to do that at a Rule 12 motion, were they? [00:18:02] Speaker 02: They were not required to, but it is standard practice typically to, as we see in the Atrix case, to submit a proposed amended complaint sometimes in response to a 12b6 motion. [00:18:16] Speaker 00: In fact, it's not sure how I can infer an unwillingness to do it. [00:18:20] Speaker 00: Is that your best argument to why I shouldn't give them a chance on remand to do it? [00:18:24] Speaker 02: No, Your Honor. [00:18:25] Speaker 02: There is one other point on this, and let me find where it is that they say it. [00:18:32] Speaker 02: Even on appeal, the other side says they didn't plead it because, quote, the patents themselves proved the point about alleged inventiveness. [00:18:44] Speaker 02: So I think in light of that statement, Your Honor, the court can look at just the patents themselves in terms of what is alleged to be invented. [00:18:54] Speaker 00: And there's no doubt. [00:18:55] Speaker 00: The patent itself, I think, in part says we have overcome the problems with targeted internet [00:19:02] Speaker 00: advertising and the District Court recognized that but said I'm not taking that as true. [00:19:09] Speaker 00: Isn't all of that in fact what happened and isn't that error on a Rule 12 motion? [00:19:15] Speaker 02: So with respect to that combination and that purported improvement over the prior art, what the specification is clearly talking about is the combination of using context [00:19:27] Speaker 02: and user history. [00:19:29] Speaker 02: There's nothing about the combination that they're talking about there that relates to the performance score. [00:19:36] Speaker 02: So in the specification, there's nothing that sort of suggests that that performance score was an improvement over the prior art. [00:19:42] Speaker 00: I'll take that as true for now. [00:19:45] Speaker 00: But even so, the specification does make a representation about overcoming a problem. [00:19:56] Speaker 00: And I think their argument for why they didn't try to amend is they assumed that at Rule 12, the district court was obligated to take that statement in its own patent as true. [00:20:11] Speaker 00: And they were surprised, evidently, that the district court didn't. [00:20:15] Speaker 00: So I'm mostly concerned with your answer to isn't that error? [00:20:18] Speaker 00: Isn't that what the district court did and isn't that error? [00:20:20] Speaker 00: But anything else you want to say about that would be helpful. [00:20:23] Speaker 02: So in terms of the... [00:20:25] Speaker 02: it not being error, again, Your Honor, I would point to the Chargepoint case as well as the Atrix case as to why it was not error to allow them to amend. [00:20:37] Speaker 02: In Chargepoint, the court said that that kind of position or that kind of argument would be waived. [00:20:45] Speaker 02: Now, given in Chargepoint, it was applying Fourth Circuit law. [00:20:48] Speaker 00: It was not applying Ninth Circuit law. [00:20:49] Speaker 00: That may be a big difference, right? [00:20:51] Speaker 02: It may be, but I don't believe so in this case. [00:20:54] Speaker 02: And that's not part of the briefing. [00:20:55] Speaker 02: It's certainly not part of their argument that that's a distinction here. [00:21:01] Speaker 02: So I think that's why it's not error. [00:21:04] Speaker 02: And Atrix, in that situation, that was also on point. [00:21:09] Speaker 02: The patentee sought to amend in response to the motion. [00:21:13] Speaker 02: That's common again. [00:21:14] Speaker 02: That's not what audience science did here. [00:21:18] Speaker 02: add a draft amended complaint, and the court thought that it would be futile. [00:21:21] Speaker 02: And again, they admit now in their briefing that the issue of the inventiveness is fully teed up, is squarely presented in the patent itself. [00:21:31] Speaker 02: So there's nothing that they're saying they could have or would have added by way of an amended complaint. [00:21:38] Speaker 02: that adds to what is disclosed in the patent itself. [00:21:41] Speaker 03: Can I just ask you, are you making the argument that, and I'll summarize it this way, conventionality is just not the issue here. [00:21:51] Speaker 03: Because the only things that they point to for trying to save the claim on step two are all themselves abstract. [00:22:03] Speaker 03: unconventional abstract idea is still doesn't save a claim from invalidity at how a step to and what you have here is sort of a combination of three abstract ideas [00:22:19] Speaker 03: all kind of related, see what this user is looking at now, see what that user has looked at before, and choose the ads to serve that person that in some very general way have been more effective. [00:22:38] Speaker 02: Yes, Your Honor, that is what we're arguing. [00:22:40] Speaker 02: I think there are two ways to argue it or to look at it. [00:22:43] Speaker 02: There is that way to say, let's look at all these three things. [00:22:47] Speaker 02: They're all sort of abstract at step one. [00:22:50] Speaker 02: I think the other way to look at it is to say, the patent seems to recognize the two conventional techniques, context and user-based targeting. [00:23:01] Speaker 02: What it purports to do is put those two things together. [00:23:05] Speaker 02: That's just combining two abstract ideas, which the court has said in a number of cases, where Cognacorp, I think, being one of them, that combining two abstract ideas is just another abstract idea. [00:23:20] Speaker 02: I think then you could go and look [00:23:23] Speaker 02: Is there a saving inventive concept? [00:23:25] Speaker 02: And look at the question of the performance weighting and think, is this enough? [00:23:30] Speaker 02: I think you took the words out of my mouth before. [00:23:33] Speaker 02: Is that significantly more, which is what the case law requires, is that significantly more to do this performance weighting or this weighting that they have claimed in the claim one, the representative claim that they're arguing? [00:23:50] Speaker 02: And the answer is no. [00:23:52] Speaker 02: that the way that that is claimed is whether you want to call that additionally abstract or whether you want to call that not adding on an inventive concept at step two, the claims still fail either way that you kind of look at the problem. [00:24:13] Speaker 03: Do you want to take one quick shot at distinguishing was it [00:24:19] Speaker 03: Weissman, or whatever? [00:24:21] Speaker 02: Weissner. [00:24:21] Speaker 02: Weissner. [00:24:23] Speaker 03: Distinguishing it from the parts that were upheld. [00:24:28] Speaker 02: Understood. [00:24:29] Speaker 02: I think it was Judge Stark that asked about Weissner and noted that Weissner has two patents that were found ineligible and two patents that were found, at least, to have been pleaded with sufficient particularity to get passed 12b6. [00:24:47] Speaker 02: We do think this is a lot closer to the two that were found ineligible. [00:24:52] Speaker 02: The idea of a digital travel log is not actually unlike what we have here, which is the idea of a log of the websites that one has visited and targeting ads to those things. [00:25:07] Speaker 02: The two that survived in Weissner [00:25:12] Speaker 02: If you look at that Weissner opinion, it was focused on the fact that there were sufficient pleadings in the second amended complaint with respect to an inventive concept. [00:25:22] Speaker 02: And again, going back to our conversation a few minutes ago, that is not here. [00:25:26] Speaker 02: There is nothing in the complaint. [00:25:29] Speaker 02: And I don't think there's any dispute between and among the parties that there is nothing in the complaint. [00:25:34] Speaker 02: So the question is, is there anything at that point in the patent itself, the specification? [00:25:41] Speaker 02: And again, we submit, Your Honors, that there is nothing to distinguish or to show an inventive concept. [00:25:47] Speaker 02: Not even the patent specification suggests that the performance weightings are some kind of new or inventive step. [00:25:56] Speaker 02: And again, they're just referring to commonly known techniques that were used in the industry. [00:26:05] Speaker 02: The big distinction for Wisner, we think, is that there was something pleaded there that is not pleaded here, and frankly, that could not be pleaded here. [00:26:14] Speaker 02: And that is the distinction over the Wisner case. [00:26:21] Speaker 00: Can I ask you, I think you have a notion of our personal web case that, if I understand you correctly, goes like, [00:26:30] Speaker 00: At step two, a fact dispute can only be revealed or created based on the intrinsic patent evidence itself. [00:26:40] Speaker 00: And if a complaint tries to add factual allegations to create a fact dispute that aren't actually in the patent or maybe the prosecution history, then we've said it doesn't count towards a fact dispute at step two, at least at rule 12. [00:26:58] Speaker 00: I'm not sure I see that in personal web. [00:27:00] Speaker 00: Is that your argument? [00:27:02] Speaker 00: If that's what you think the law is, is it personal web or is it somewhere else that I would see that? [00:27:08] Speaker 02: I think it may be in personal web. [00:27:11] Speaker 02: I think that the issue is perhaps a little more squarely addressed, I think, in the broadband ITV case, where there's discussion, I think, in the context of both step one and step two as to [00:27:28] Speaker 02: how you use the specification in order to determine whether or not there was an inventive concept, or I think it's step one, a technological solution. [00:27:39] Speaker 02: And that there is looking at the actual specification. [00:27:43] Speaker 02: I think it even cites Weisner, actually, in that situation. [00:27:46] Speaker 02: So I think Weisner would be another case that is instructive on this, in addition, perhaps, to personal web. [00:27:53] Speaker 02: Those tell you that, [00:27:54] Speaker 02: that you look at the specification in order to figure out what the specification itself is saying is invented. [00:28:02] Speaker 00: If I thought that the law was at Rule 12, if there's not a clear contradiction between the intrinsic patent evidence and the allegations in the complaint, [00:28:18] Speaker 00: then the patentee is probably going to be fine, at least get past rule 12. [00:28:23] Speaker 00: If I thought that was the law, why would I be wrong? [00:28:28] Speaker 02: I don't think you would be wrong in that situation. [00:28:31] Speaker 00: So then where's the clear contradiction here? [00:28:33] Speaker 00: Just give us one example of a clear contradiction between their contention that they have an invented concept here and something in any of these patents. [00:28:45] Speaker 02: I understood your question before, Your Honor, to be about a contradiction between the complaint [00:28:50] Speaker 02: and the specification. [00:28:52] Speaker 02: There is nothing alleged in the complaint. [00:28:54] Speaker 00: So there is no contradiction. [00:28:55] Speaker 00: I'm thinking of a future complaint, if they were given a chance to file one, where they say something to the effect of the order combination of these two search techniques plus performance scores was unconventional, non-routine, not well understood in 2004. [00:29:10] Speaker 00: Is there something in the patent you can point me to that actually contradicts an allegation like that, so that I would know it's futile for them to even try? [00:29:20] Speaker 02: I don't know that there's a contradiction per se, your honor. [00:29:24] Speaker 02: I think if you look at the way that the performance scores are discussed, it's quite clear that they're talking about things that are known in the industry that are not sort of new. [00:29:37] Speaker 02: And there are multiple different ways that are discussed in that specification. [00:29:42] Speaker 02: So I think that's the answer to your question, your honor. [00:29:49] Speaker 04: You're well over your time. [00:29:53] Speaker 02: Sorry, Your Honor. [00:29:54] Speaker 02: Thank you very much. [00:29:57] Speaker 04: So let's hear back from Attorney Patil. [00:30:03] Speaker 01: Thank you. [00:30:05] Speaker 01: So I think what we've just heard from my friend, I can only describe as a complete inversion of the burden of proof. [00:30:15] Speaker 01: What was presented was, I don't see where the specification [00:30:19] Speaker 01: says this is inventive. [00:30:21] Speaker 01: I don't see where they pled this is inventive. [00:30:24] Speaker 01: I don't see how they could plead that was inventive. [00:30:28] Speaker 01: Google is the one trying to invalidate this patent. [00:30:31] Speaker 01: And in our system, the party that is seeking to invalidate the patent bears the burden of proof on a fat question of conventionality. [00:30:39] Speaker 01: What I didn't hear him say is anywhere that they have actually proved, come forward with evidence, that this performance score [00:30:47] Speaker 01: had been done by anyone ever in the way that it's recited in the patents. [00:30:51] Speaker 01: And I think it would be a radical change in this court's law to suddenly say that no patent can survive 101 on conventionality unless the patent actually goes through and says, [00:31:04] Speaker 01: This is inventive over the prior art. [00:31:06] Speaker 01: This is inventive over the prior art. [00:31:08] Speaker 01: This is inventive over the prior art. [00:31:10] Speaker 01: I don't believe that's required by 112 or anything else in terms of what you're required to put into your patents. [00:31:16] Speaker 01: The party that's seeking to invalidate the patent bears the burden of proof. [00:31:20] Speaker 01: And again, to that end, it did specifically say, the patent did specifically say, that its methods of selecting relevant advertisements was in advance [00:31:32] Speaker 01: over the prior art. [00:31:33] Speaker 01: That does specifically say it was an inventive concept. [00:31:35] Speaker 01: Now, did the performance score also say that? [00:31:39] Speaker 01: No, it did not. [00:31:39] Speaker 01: But does that mean that there's any evidence that this has ever been used? [00:31:43] Speaker 01: Certainly so much to say that it was not just obvious, but conventional. [00:31:47] Speaker 01: And I think the answer is there is no proof there. [00:31:50] Speaker 01: The question is not what could we plead? [00:31:52] Speaker 01: around that necessarily. [00:31:54] Speaker 01: The question is, what did they come forward with to show otherwise as the party with the burden of proof? [00:31:58] Speaker 01: And I think the answer is nothing. [00:32:00] Speaker 01: If you look at the district court's opinion, if you look at the briefing below, if you look at the briefing in this court, there's not a lick of evidence to support that, much less clear and convincing evidence. [00:32:09] Speaker 01: I'd like to really quickly turn to the notion that this is just combining existing abstract concepts. [00:32:18] Speaker 01: And respectfully, I don't believe that's a fair characterization of the claim. [00:32:23] Speaker 01: If you were to say targeted advertising based on page context is an abstract concept. [00:32:29] Speaker 01: If you were to say targeted advertising based on your browsing history is an abstract concept. [00:32:36] Speaker 01: I don't know that I would necessarily fight that given this court's case law. [00:32:39] Speaker 01: But the question is, does our invention provide an inventive concept that amounts to significantly more than that? [00:32:47] Speaker 01: And it does because it recites a specific method using keywords to achieve that function. [00:32:53] Speaker 01: It may seem simple. [00:32:54] Speaker 01: It may seem straightforward, the idea that you would just tag and map. [00:32:58] Speaker 01: But it was an inventive concept at the time. [00:33:01] Speaker 01: The patents say so. [00:33:02] Speaker 01: And I think that if we're trying to draw the line, I think where we can draw the line is with cases like Chewy. [00:33:09] Speaker 01: And Chewy said it was going to track users' history, and it was going to provide targeted advertising based on an information repository. [00:33:20] Speaker 01: And the problem was, [00:33:22] Speaker 01: The invention repository was nothing but a black box. [00:33:25] Speaker 01: As this court said, it didn't actually tell you what to do. [00:33:28] Speaker 01: It didn't tell you how to match the user's history with the ads to present. [00:33:35] Speaker 01: And what we have here is the exact specificity to provide how to do that. [00:33:39] Speaker 01: We don't just say a black box, use browser history, use the page you're on. [00:33:44] Speaker 01: We tell you a specific method for doing so. [00:33:47] Speaker 01: And we believe that's pretty much the answer that distinguishes us [00:33:50] Speaker 01: from all of these cases where targeted advertising has been struck down is the method was a black box, and we've provided you the specificity. [00:34:03] Speaker 01: If there's nothing else, I would respectfully request that the court reverse the district court's decision. [00:34:08] Speaker 04: Thank you. [00:34:09] Speaker 01: Thank you.