Case 1:19-cv-00859-RTH Document 26 Filed 05/28/20 Page 1 of 152
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` IN THE UNITED STATES COURT OF FEDERAL CLAIMS
`
` E-NUMERATE SOLUTIONS, INC., )
` and E-NUMERATE SOLUTIONS, )
` LLC, ) Case No. 19-859C
` Plaintiffs, )
` vs. )
` UNITED STATES OF AMERICA, )
` Defendant. )
`----------------------------------)
`
` Courtroom 5
` Howard T. Markey National Courts Building
` 717 Madison Place, N.W.
` Washington, D.C.
` Tuesday, May 5, 2020
` 1:00 p.m.
` Oral Argument on Defendant's Motion to Dismiss
`
` BEFORE: THE HONORABLE RYAN T. HOLTE
`
`Susanne Bergling, RMR-CRR-CLR, Transcriber
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`
` IN THE UNITED STATES COURT OF FEDERAL CLAIMS
`
` E-NUMERATE SOLUTIONS, INC., )
` and E-NUMERATE SOLUTIONS, )
` LLC, ) Case No. 19-859C
` Plaintiffs, )
` vs. )
` UNITED STATES OF AMERICA, )
` Defendant. )
`----------------------------------)
`
` Courtroom 5
` Howard T. Markey National Courts Building
` 717 Madison Place, N.W.
` Washington, D.C.
` Tuesday, May 5, 2020
` 1:00 p.m.
` Oral Argument on Defendant's Motion to Dismiss
`
` BEFORE: THE HONORABLE RYAN T. HOLTE
`
`Susanne Bergling, RMR-CRR-CLR, Transcriber
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`Case 1:19-cv-00859-RTH Document 26 Filed 05/28/20 Page 2 of 152
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`e-Numerate Solutions v. USA
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`5/5/2020
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`APPEARANCES:
`ON BEHALF OF THE PLAINTIFF:
` GERARD M. O'ROURKE, ESQ.
` O'Rourke Law Office
` 1007 North Orange Street
` Wilmington, Delaware 19801
` (302) 778-2500
` gorourke@orourkefirm.com
` and
` SEAN T. O'KELLY, ESQ.
` O'Kelly, Ernst & Joyce, LLC
` 901 N. Market Street, Suite 1000
` Wilmington, Delaware 19801
` (302) 778-4000
` sokelly@oelegal.com
`
`ON BEHALF OF THE DEFENDANT:
` SCOTT D. BOLDEN, ESQ.
` SHAHAR HAREL, ESQ.
` U.S. Department of Justice
` Post Office Box 480
` Ben Franklin Station
` Washington, D.C. 20044
` (202) 307-0262
` scott.bolden@usdoj.gov
`
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`Case 1:19-cv-00859-RTH Document 26 Filed 05/28/20 Page 3 of 152
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`e-Numerate Solutions v. USA
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`ALSO PRESENT:
` Bill Diefenderfer, e-Numerate
` Michael Hoover, e-Numerate
` Nelson Kuan, SEC
` Elizabeth McFadden, SEC
` Richard Humes, SEC
` George Brown, SEC
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`e-Numerate Solutions v. USA
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` P R O C E E D I N G S
` - - - - -
` (Proceeding called to order, 1:00 p.m.)
` THE COURT: Welcome, everyone. Please be seated.
` Good afternoon. So before the Court today is
`Case Number 19-859, e-Numerate Solutions vs. United
`States. Thank you, all, for being here today.
` So I'll say at the onset that the Court
`appreciates the parties' request to move forward with
`today's proceeding in person, despite the ongoing health
`concerns, and I understand that part of the reason for
`that was electronic presentations from both Plaintiff
`and the Government. The Court is happy to accommodate.
` I know the Chief Judge's order and guidelines are
`publicly available and were sent to the parties and that
`counsel also reviewed some details and confirmed that no
`one is symptomatic with respect to the COVID-19 concerns
`before today's proceedings.
` Pursuant to the Chief Judge's order, there were a
`couple reminders I just wanted to touch base on. So the
`Court does have a facemask. I am happy to wear this if
`counsel desires. I understand that there are the
`socially distant guidelines and if we are all six feet
`apart -- which we should remain -- that the facemask
`might not be as useful. So counsel is able to wear the
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`e-Numerate Solutions v. USA
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`facemasks or you're able take them off as far as I'm
`concerned.
` Is there any request that the Court put on the
`facemask?
` MR. BOLDEN: None from the Government, Your
`Honor.
` MR. O'ROURKE: None from the Plaintiffs, Your
`Honor.
` THE COURT: Yeah. If there is any request that
`other people wear a facemask, Mr. Bolden, you are
`certainly welcome to continue wearing it or to take it
`off during the time that you speak.
` Just a couple reminders, though, that when in the
`courthouse, please wear the facemask when coming in and
`out. After today's proceeding or if you have to get up
`and use the restroom, please go directly to and then
`come back. And then after the proceeding, to exit the
`building, keeping within all six-foot social distancing
`guidelines.
` Any concerns related to the CDC guidelines or
`questions along that line?
` (No response.)
` THE COURT: No?
` MR. O'ROURKE: None from the Plaintiffs.
` THE COURT: Okay, great.
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` So let's begin with introductions of the parties,
`beginning with Plaintiff. Why don't you go ahead and go
`first.
` MR. O'ROURKE: Good afternoon, Your Honor. My
`name is Gerard O'Rourke from the O'Rourke Law Office,
`LLC. I go by Jerry O'Rourke. With me at counsel table
`is Mr. Sean O'Kelly of the O'Kelly & Ernst firm. Both
`of our firms are located in Wilmington, Delaware.
` On behalf of the e-Numerate entities in the
`lawsuit, I wish to introduce two people. Sitting on my
`left as I face him is Mr. Bill Diefenderfer.
`Mr. Diefenderfer is one of the cofounders of e-Numerate.
` In addition, he has a distinguished history of
`government service. He was the Chief Counsel of the
`Senate Finance Committee under -- during the --
`President Reagan's term, was involved in the 1986 Tax
`Reform Act, and in addition, he served as the Deputy
`Director of the Office of Management & Budget during
`the -- President George H.W. Bush's term.
` Also with me is Mr. Mike Hoover. Mr. Hoover is
`the General Counsel of the e-Numerate entities.
` THE COURT: Great. Welcome, everyone. Welcome,
`Mr. Diefenderfer, Mr. Hoover.
` Now, Mr. Bolden, for the Government?
` MR. BOLDEN: Yes. Good afternoon, Your Honor,
`
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`Scott Bolden on behalf of the United States. With me is
`Shahar Harel with the Department of Justice, Nelson Kuan
`with the Securities and Exchange Commission, and on the
`phone we have several other Securities and Exchange
`Commission attorneys from the Office of General Counsel.
`That's Elizabeth McFadden, Richard Humes, and George
`Brown.
` THE COURT: All right, welcome. I understand
`that those on the phone line have been instructed to
`keep their phones muted, but should they have need to
`communicate -- I hope that they can hear me now, I think
`they can -- that they can take their phone off of mute
`and just let us know.
` So -- and I believe that's everyone, including
`those on the phone line, and as, Mr. O'Rourke and
`Mr. Bolden, you've already done, feel free to remain in
`place if you would like or come up to the lectern
`individually if that's easiest. Certainly, for initial
`presentations, I'm happy to have you at the podium, but
`if we are going back and forth in discussion, it might
`be easier to remain where you're at. And feel free to
`also remain seated if you would like to look at your
`computers or paperwork in front of you.
` So the purpose of today's argument is related to
`the Government's 12(b)(6) motion to dismiss Plaintiffs'
`
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`claims related to the seven asserted patents and a
`motion to dismiss under 35 USC Section 101. As the
`Government is the moving party and has a presentation
`prepared, I'd like to invite Mr. Bolden now to begin.
` Just to confirm on the record, I assume that,
`Mr. Bolden, you have shared your presentation with
`Mr. O'Rourke, and, Mr. O'Rourke, you have no objection
`to anything?
` MR. O'ROURKE: That's correct. We've both
`exchanged, and we have no objection to the Government's
`presentation.
` THE COURT: Great.
` And Mr. Bolden?
` MR. BOLDEN: That is correct, Your Honor.
` THE COURT: Okay. What is your initial plan
`related to timing of how long the presentations are?
` MR. BOLDEN: My suspicion is that our
`presentation is probably 30 to 40 minutes, but it
`depends on the Court's questions or how the Court wants
`to proceed, of course.
` THE COURT: Yeah.
` Mr. O'Rourke?
` MR. O'ROURKE: Mr. O'Kelly and I walked through
`the presentation yesterday, our slides. We have a
`lengthier slide deck than the Government. I would think
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`we could do it in about an hour, and we were going to be
`omitting, I think, or skipping over things Your Honor
`might find not helpful, if Your Honor says you don't
`need to hear about certain points.
` THE COURT: Help me out with a summary of what's
`in the presentations. First, Mr. Bolden?
` MR. BOLDEN: Your Honor, so essentially the
`argument we intend to present today is broadly covered
`by the presentation. We do cover -- I understand that
`Your Honor probably has a great understanding of Section
`101 and the procedural status of the case. We do cover
`that. I can perhaps move beyond those slides in a
`quicker fashion, but we also tried to illustrate the
`different claim groups that are at issue --
` THE COURT: Yes.
` MR. BOLDEN: -- that we have identified. We
`identify a lot of the authority that we rely on, and we
`try to explain how the authority supports our motion to
`dismiss.
` THE COURT: Okay.
` Mr. O'Rourke?
` MR. O'ROURKE: Yes, Your Honor. We have -- I can
`hand up our slides and it might show you -- and walk
`through it, if that would be helpful to Your Honor, to
`give you sort of the topics addressed in the slides.
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` THE COURT: Yeah, if -- I guess, Mr. Bolden,
`could you first hand the slides to my Law Clerk?
` MR. BOLDEN: Sure. Thank you.
` THE COURT: Mr. O'Rourke?
` MR. O'ROURKE: Your Honor, the topics addressed
`in our presentation go on slide 2 and 3. We give you a
`brief -- we intended to give you a brief background of
`the e-Numerate company, talk briefly about the
`procedural history of the District of Delaware
`litigation, the IPR proceeding that was filed in the
`Patent Office, as well as the filing of this case.
` Then we really start getting into the meat of the
`presentation. We're going to talk about the
`technological background and advances of the seven
`patents-in-suit at issue. We then have -- discuss the
`Government's factual assertions regarding the content of
`the prior art and why we believe that's disputed. Then
`we have a section, as Mr. Bolden said, on the law on
`motions to dismiss and the core principles governing
`motions under 101.
` We did want to talk about the Government's cases
`and the ones we rely on, and then we have patentability
`arguments for each of the seven patents-in-suit that
`discuss the abstract idea prong of Alice, the inventive
`concept prong of Alice, and the well -- the
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`conventional, well understood team prong of the
`inventive concept analysis.
` And, lastly, we have some policy arguments we
`wanted to make on why the case should not be dismissed
`at this point.
` THE COURT: Okay, thank you.
` Mr. Bolden?
` MR. BOLDEN: Yes. And so essentially the slides
`that we intend to present cover the same topics.
` THE COURT: Okay.
` MR. BOLDEN: And I believe there's about 30, 31,
`32 different slides.
` THE COURT: Yep.
` MR. BOLDEN: But what I anticipated was that if
`the Court has questions, the Court can feel free to ask
`those questions at any point during the presentation. I
`didn't anticipate that I would just give the
`presentation without, you know, interruption.
` THE COURT: Understood.
` So I'll say at the onset, the Court is very
`familiar with the materials related to this motion, as
`well as recent Section 101 jurisprudence, and I've spent
`a number of days preparing for the oral argument today.
`I've also spent a number of hours reviewing the seven
`asserted patents and the differences between the claims,
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`and I definitely do have questions related to the heart
`of the claim language, questions related to
`representative claims or a lack thereof of
`representative claims that have been part of the
`briefing, as well as a couple details which it looks
`like you might cover, Mr. O'Rourke, regarding the
`history and background of the invention and some of the
`specification --
` MR. O'ROURKE: Yes.
` THE COURT: -- detail. I have a little chart
`that my Law Clerk has put together related to some of
`the claims that are part of the seven patents and their
`priority dates, as well as their issuance dates and some
`of their prosecution history.
` I'd like to give you both opportunities, though,
`to walk me through what you think is the heart of the
`presentation, though. So let's assume that for the
`initial remarks, beginning with Mr. Bolden, how about if
`we stick to ten minutes maybe. Let's not cover 101 law.
`We will get to that after maybe we talk about some of
`the technical aspects of things.
` I guess, Mr. Bolden, I don't want to upset your
`presentation -- and if your presentation goes longer
`than ten minutes, that's okay -- but what I'd like, if
`you could touch on, though, are -- and assume that I've
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`read both of your briefs in detail -- if you could skip
`through the law portion and maybe dive right into slide
`9 related to the asserted patents and the claims, and it
`looks like you go through the claims for some slides,
`which would be helpful. Yep?
` MR. BOLDEN: Yes.
` THE COURT: Yes, that would be great. And feel
`free to begin with a general introduction and
`presentation of your overarching argument.
` MR. BOLDEN: Sure.
` Thank you, Your Honor, and may it please the
`Court.
` E-Numerate's complaint should be dismissed
`because patents -- because e-Numerate's patents broadly
`claim browsing, manipulating, and viewing numbers on a
`computer. That is a classically abstract idea in the
`wake of the Supreme Court's decision in Alice, and the
`Federal Circuit has labeled similar ideas as
`"quintessential do-it-on-a-computer claims" or "do-it-
`on-the-computer patents."
` The Government's motion is procedurally proper at
`this time. To support its motion, the Government
`identified the representative claims, distilled the
`ideas from those representative claims, and then showed
`that those ideas were abstract as a matter of law.
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` In response, e-Numerate has had a full and fair
`opportunity to oppose the Government's motion, but
`instead, e-Numerate has not identified any relevant
`claim construction dispute that would preclude
`dismissal; e-Numerate has not identified any relevant,
`plausible facts that would preclude dismissal; and
`e-Numerate's legal theories are flawed. Therefore,
`dismissal is appropriate.
` So at the Court's direction, I will skip past
`these introductory slides, but I would like to direct
`the Court to slide number 4 just as an overall thematic
`point, which is the test that the Supreme Court provided
`in Alice was driven by the notion of preemption, and in
`this particular case, that concern is real.
` E-Numerate broadly asserts infringement for every
`XBRL complaint document that's filed with the SEC, and
`the SEC has been transitioning and mandating use of XBRL
`for years now. Public companies are required to use
`XBRL tagging for financial statements. That's what
`e-Numerate alleged in Delaware as well, too.
` And the concern for preemption is real because
`e-Numerate's claims are generally functional in nature.
`There is no real way to design around a markup language
`that does number manipulation. That's just essentially
`how broad that their patents are, and so that is a
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`concern that I wanted to raise.
` Moving --
` THE COURT: Just to clarify, say that last part
`again related to the coverage of a numerical markup
`language.
` MR. BOLDEN: Yes, Your Honor. To use their
`language from the intrinsic record, what they claim is a
`markup language that allows browsing, manipulation, and
`display of numbers, and it -- that's not something that
`can be designed around. That is essentially preempting
`any ability to do that kind of material on the internet.
` THE COURT: But in their complaint, they do
`specify that their patent does not cover just the
`conversion of the numbers to software code.
` MR. BOLDEN: Where is that in their complaint,
`Your Honor?
` THE COURT: Yes. So I think your citations on
`slide 4 are to the complaint, right?
` MR. BOLDEN: Yes, Your Honor. So, for example,
`some of the documents that they cite are quarterly
`reports by public companies, like the 10-Q reports that
`are --
` THE COURT: So I'm just looking at paragraph 22
`of the complaint, pages 14 to 15. "While the
`patents-in-suit do not claim the invention of semantic
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`tags" --
` MR. BOLDEN: Correct.
` THE COURT: -- "RDML invented the use of semantic
`tags to enable the unambiguous selection, analysis,
`processing, and outputting of information based on the
`information contained in the semantic tags," and that
`was not part of the prior art.
` MR. BOLDEN: Correct. They make that allegation,
`Your Honor, but --
` THE COURT: Well, and for the purposes of a
`motion to dismiss, we need to assume that their
`allegation be taken at face value, right?
` MR. BOLDEN: Correct, in the sense that what they
`are asserting here is that they have not invented a new
`form of tagging; arguably, they haven't even invented a
`new form of markup language. While they don't claim the
`use of semantic tags in any context, what they are
`claiming the use of is tagged data that a macro is
`applied to. That's claim group one, and with that kind
`of expansive claim, that essentially preempts any use of
`a markup language for number manipulation. That's why
`we raise that point.
` THE COURT: Okay.
` MR. BOLDEN: So turning to the asserted patents,
`the asserted patents come from two different family
`
`For The Record, Inc.
`(301) 870-8025 - www.ftrinc.net - (800) 921-5555
`
`
`
`Case 1:19-cv-00859-RTH Document 26 Filed 05/28/20 Page 17 of 152
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`e-Numerate Solutions v. USA
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`trees, and we've mapped that out here on slide 9. The
`main point -- well, there are two main points that I
`wanted to raise with respect to the prosecution history
`of the asserted patents.
` The first is the specifications of the asserted
`patents are generally the same and especially with
`respect to the issues presented here today to the Court,
`and so we've simply referred to the '355 patent
`specification in most instances.
` But the other point that I think is evident from
`the prosecution history is that the prosecution history
`helps illustrate the abstract nature of these claims.
`So, for example, during the prosecution of the '355
`patent, at that time, the State Street standard was the
`standard that controlled, and e-Numerate had a 101
`rejection, and to get around the 101 rejection, they
`modified their claim to add "computer implemented" and
`some other computer language to get around that 101
`rejection.
` We think that that illustrates, for Alice step
`one, that their difference over the prior art or their
`direction of their patents is simply an abstract idea
`plus use of a computer, and so we think the prosecution
`history illustrates that point.
` THE COURT: Is that if the '355 patent had
`
`For The Record, Inc.
`(301) 870-8025 - www.ftrinc.net - (800) 921-5555
`
`
`
`Case 1:19-cv-00859-RTH Document 26 Filed 05/28/20 Page 18 of 152
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`e-Numerate Solutions v. USA
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`undergone an Alice scrutiny during prosecution, it would
`not have been allowed?
` MR. BOLDEN: I think that would be true, Your
`Honor. I mean, it's difficult to say in hindsight, but
`certainly we know, as a matter of the intrinsic record,
`that they had a 101 rejection under the State Street
`standard and that they overcame that rejection by adding
`computer limitations to their claim. That's what we
`know.
` THE COURT: But, I mean, after prosecution and
`after a patent is issued, a patent should be presumed
`valid --
` MR. BOLDEN: Yes.
` THE COURT: -- and enforceable.
` MR. BOLDEN: Yes, Your Honor, and we acknowledge
`that that is the standard; however, as we cite in the
`SAP case, courts have routinely found patent claims to
`be ineligible both before Berkheimer and Aatrix and
`after Berkheimer and Aatrix, even with that presumption,
`and courts have often found patent claims to be
`ineligible without any sort of fact issue as well, too.
`So any sort of clear and convincing standard really
`doesn't apply unless there are facts in play. But, yes,
`their patent claims are presumed valid because they have
`been issued.
`
`For The Record, Inc.
`(301) 870-8025 - www.ftrinc.net - (800) 921-5555
`
`
`
`Case 1:19-cv-00859-RTH Document 26 Filed 05/28/20 Page 19 of 152
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`e-Numerate Solutions v. USA
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` THE COURT: Um-hum. Just a quick note at the
`onset here, but I still want you to talk about the claim
`language in your presentation, Mr. Bolden.
` MR. BOLDEN: Sure.
` THE COURT: So I'm looking over an order from
`January of this year from my friend Judge Albright on
`the District Court in the Western District of Texas. He
`says, citing Aatrix, the 2018 Fed Circuit decision, "In
`other words, to prevail on a Rule 12(b) motion to
`dismiss, the Movant needs to overcome both the factual
`deck stacked against it and a heightened burden of
`proof. In some cases, these dual obstacles may be
`insurmountable." I'm not saying that they are
`insurmountable; they may be insurmountable.
` MR. BOLDEN: Um-hum.
` THE COURT: An example he gives, "If the Patentee
`simply included a declaration from the inventor or
`expert explaining how the asserted claims are more than
`well understood, routine and conventional activities
`previously known to the industry, as the District Court
`must accept all of the complaint's factual allegations
`as true."
` Is that -- I guess, would you agree with that
`statement?
` MR. BOLDEN: I would agree with that statement as
`
`For The Record, Inc.
`(301) 870-8025 - www.ftrinc.net - (800) 921-5555
`
`
`
`Case 1:19-cv-00859-RTH Document 26 Filed 05/28/20 Page 20 of 152
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`e-Numerate Solutions v. USA
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`long as the facts are both plausible and factual. This
`is sort of covered by my introductory slides that I
`skipped past --
` THE COURT: Oh, yeah, we can -- yeah.
` MR. BOLDEN: -- but certainly there is other
`authority, for example, the Athena Diagnostics case,
`where the Federal Circuit had an expert declaration but
`said that they weren't going to pay attention to it
`because it was contradicted by the intrinsic record.
` THE COURT: Um-hum.
` MR. BOLDEN: So I would agree with the Judge's
`statement that if there are facts in play that are
`plausible, if they are factual, basically if they meet
`the Iqbal standard --
` THE COURT: Yep.
` MR. BOLDEN: -- then certainly the presumption
`applies. We're on a motion to dismiss, and I understand
`the procedural setting that we're in, but if there are
`no plausible, factual facts -- and even with an expert
`declaration, you have to look to see whether those
`assertions are contradicted by the intrinsic record or
`are tied to the claims at issue. So I don't disagree
`with what the Judge says. I'm just saying that in this
`particular case, that's not the situation.
` THE COURT: Yeah. Well, we will talk about the
`
`For The Record, Inc.
`(301) 870-8025 - www.ftrinc.net - (800) 921-5555
`
`
`
`Case 1:19-cv-00859-RTH Document 26 Filed 05/28/20 Page 21 of 152
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`e-Numerate Solutions v. USA
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`claims now and then we will come back on the law. I
`appreciate that.
` MR. BOLDEN: Okay. And before we jump to the
`claims, what I have here on slide 10 is the abstract of
`the patent. So the very face of the patent, the very
`first thing that the public looks at is the abstract of
`the patent, and what it indicates here on the abstract
`is that in accordance with the present invention, what
`is being claimed is markup languages that facilitate the
`browsing and manipulation of numbers.
` THE COURT: Well, the abstract of the patent
`doesn't mean much, right? I mean --
` MR. BOLDEN: It -- normally not. I mean, it's
`one of those parts of the overall intrinsic record that
`serves to inform ultimately, but the thing I want to
`direct the Court's attention to is the words "the
`present invention" or "in accordance with the present
`invention." Certainly in claim construction settings,
`when a patentee recites -- I'll call them those magic
`words -- the Federal Circuit, for example, in the
`Honeywell case has said that that's almost like -- well,
`I guess this is my words, not the Federal Circuit's
`words -- but it's like a billboard to the public.
`You're announcing to the public, hey, this is exactly
`what my patent discloses.
`
`For The Record, Inc.
`(301) 870-8025 - www.ftrinc.net - (800) 921-5555
`
`
`
`Case 1:19-cv-00859-RTH Document 26 Filed 05/28/20 Page 22 of 152
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`e-Numerate Solutions v. USA
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` And so the Federal Circuit has often treated
`statements that follow "in accordance with the present
`invention" as especially significant, and so even though
`this is in the abstract, I think it helps serve to
`inform the public as to what the patentees intended to
`cover with respect to their patent.
` THE COURT: Understood, but generally statements
`like that are made deep in the heart of the
`specification related to a complex analysis of figures
`or something else, not necessarily the abstract.
` MR. BOLDEN: Well --
` THE COURT: Was the Honeywell language from the
`abstract?
` MR. BOLDEN: I don't remember where the Honeywell
`language was, but let me go ahead and direct the Court's
`attention to the summary of the invention --
` THE COURT: Yep.
` MR. BOLDEN: -- which may be more significant in
`some ways than the abstract. Here on the next slide,
`slide 11, once again we have those magic words, "methods
`and systems in accordance with the present invention
`provide a markup language that permits the browsing and
`manipulation of numbers."
` Slide 12, these are the different Federal Circuit
`cases that we've cited with respect to the significance
`
`For The Record, Inc.
`(301) 870-8025 - www.ftrinc.net - (800) 921-5555
`
`
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`Case 1:19-cv-00859-RTH Document 26 Filed 05/28/20 Page 23 of 152
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`of the present invention. Of course, Honeywell -- I
`acknowledge, Honeywell is one of the first cases that
`talks about it, and it's a claim construction case; it's
`not an eligibility case. But you can see from TLI and
`Bridge and Post, in both those cases, the Federal
`Circuit -- and those were both eligibility decisions --
`found that the patentee's use of the present invention
`was something that supported ineligibility because of
`the way that they described their invention. And, of
`course, here we have it both in the abstract and in the
`summary being mentioned.
` Again, looking at the specification -- this is
`slide 13, and I will try to speed up my presentation --
`we've cited several different times where the patentee
`describes what the goal of his invention is, and it's
`essentially to automate number manipulation. These are
`all in our briefs. I'm happy to go ahead and discuss
`these, but over and over again, the patentee basically
`says you can do these things by pen and paper, you can
`do these things by using a newspaper and looking up
`interest rates, and what I claim -- what my patents are
`directed to is the automation of that.
` THE COURT: Well, back to you can do these things
`by pen and paper, my understanding from the brief -- and
`I thought supported by the complaint -- was that it was
`
`For The Record, Inc.
`(301) 870-8025 - www.ftrinc.net - (800) 921-5555
`
`
`
`Case 1:19-cv-00859-RTH Document 26 Filed 05/28/20 Page 24 of 152
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`not something possible to be done, according to the
`Plaintiff at least, with respect to just by hand.
` MR. BOLDEN: Of course, we disagree. I think you
`have to look very specifically at the language they use.
`They often use language like "it can't be done
`unambiguously" --
` THE COURT: Um-hum.
` MR. BOLDEN: -- or "it can't be done in a
`particular context," but looking at the intrinsic
`record -- ignoring the arguments, looking at the
`intrinsic record, the intrinsic record of the patents
`again and again says that these are techniques and
`methods that you can do with a spreadsheet, with a
`macro --
` THE COURT: Where does it say that?
` MR. BOLDEN: Okay, so in column 1, lines 51
`through 59 --
` THE COURT: Um-hum.
` MR. BOLDEN: -- we have the patentee talking
`about without human intervention, to cut and paste the
`text, determine the data type, conventional analytical
`programs allow for ad hoc review and manipulation of
`abstract numbers, and they're saying, for example, a
`spreadsheet program or a database program, but do not
`di
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