Trials@uspto.gov Paper 54
`571-272-7822 Entered: July 2, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`VOLUSION, INC.
`
`Petitioner
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`v.
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`VERSATA SOFTWARE, INC. &
`VERSATA DEVELOPMENT GROUP, INC.
`
`Patent Owner
`____________
`
`Case No. CBM2013-00017
` Patent No. 6,834,282
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`and
`
`Case No. CBM2013-00018
`Patent No. 7,426,481
`
`____________
`
`Record of Oral Hearing
`Held: May 28, 2014
`____________
`
`Before SALLY C. MEDLEY, HOWARD B. BLANKENSHIP, and
`KEVIN F. TURNER, Administrative Patent Judges.
`
`
`
`
`
`571-272-7822 Entered: July 2, 2014
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`VOLUSION, INC.
`
`Petitioner
`
`v.
`
`VERSATA SOFTWARE, INC. &
`VERSATA DEVELOPMENT GROUP, INC.
`
`Patent Owner
`____________
`
`Case No. CBM2013-00017
` Patent No. 6,834,282
`
`and
`
`Case No. CBM2013-00018
`Patent No. 7,426,481
`
`____________
`
`Record of Oral Hearing
`Held: May 28, 2014
`____________
`
`Before SALLY C. MEDLEY, HOWARD B. BLANKENSHIP, and
`KEVIN F. TURNER, Administrative Patent Judges.
`
`
`
`
`
`
`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`KEITH E. BROYLES, ESQUIRE
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`DAVID S. FRIST, ESQUIRE
`
`
`Alston & Bird, LLP
`
`
`One Atlantic Center
`
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`1201 West Peachtree Street
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`
`Atlanta, Georgia 30309-3424
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`ON BEHALF OF PATENT OWNER:
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`
`DAVID W. O’BRIEN, ESQUIRE
`
`
`RAGHAV BAJAJ, ESQUIRE
`
`
`Haynes and Boone, LLP
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`
`600 Congress Avenue, Suite 1300
`
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`Austin, Texas 78701-3285
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`The above-entitled matter came on for hearing on Wednesday, May
`28, 2014, commencing at 1:00 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
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`P R O C E E D I N G S
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`- - - - -
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`JUDGE MEDLEY: Good afternoon. This is the hearing for
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`CBM2013-00017 and 00018 between Petitioner Volusion and Patent Owner
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`Versata.
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`We understand that the parties have reached a settlement in the
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`CBMs and the related District Court litigation. We received the E-mail late
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`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
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`yesterday. We further understand that the parties have filed a settlement
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`agreement through PRPS and further understand the parties seek Board
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`authorization to file a joint motion to terminate.
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`We authorize the parties to do so and an order will be forthcoming
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`to that effect. So please wait to receive our order before filing the joint
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`motion to terminate.
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`We further understand that Petitioner withdraws its request to
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`participate today.
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`MR. BROYLES: That's correct, Your Honor.
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`JUDGE MEDLEY: But we understand that Patent Owner still
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`would like to present arguments today.
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`At this time we'd like the parties to introduce themselves
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`beginning with the Petitioner, and we understand you're not participating,
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`but just to put a name with the face.
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`MR. BROYLES: Yes, Your Honor. My name is Keith Broyles
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`from Alston & Bird in Atlanta and I represent the Petitioner Volusion. With
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`me is my colleague, Mr. David Frist.
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`JUDGE MEDLEY: Okay. Nice to meet you finally.
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`And also for Patent Owner at this time?
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`MR. O'BRIEN: My name is David O'Brien with the law firm of
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`Haynes and Boone in Austin, Texas representing Versata Development
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`Group. I'm here with colleagues, Kent Chambers and Raghav Bajaj.
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`JUDGE MEDLEY: Okay. Thank you very much.
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`Okay. So per our order, which only pertains to Patent Owner at
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`this point, Patent Owner, you're presenting -- you're the only presenter today
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`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
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`and you'll have 45 minutes total for each case, so we'll begin with CBM
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`2013, the 17 case, if that's fine with you, and then we'll go on into the 18
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`case. So obviously you have no rebuttal time, so it's just straight you. So
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`please proceed.
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`MR. O'BRIEN: May we approach? We have hard copies of the
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`slides in color and, Judge Turner, I believe you have it in the record, but --
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`JUDGE MEDLEY: Thank you.
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`MR. O'BRIEN: Well, thank you and good afternoon, Your
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`Honors. This is the oral hearing for the '282 patent, CBM 2013, Number 17.
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`I'd like to start with slide 2 in your deck. And, in particular, I'd like to
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`discuss construction of the claim, the scope of the claim and the operative
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`nature of the hierarchy.
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`So Petitioner here did not propose a claim construction of any
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`term in the petition nor has it ever proposed a claim construction. As Dr.
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`Nettles has testified and as established in the Patent Owner's response, that's
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`paper 23 in your record, the term "hierarchy" should be construed as an
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`operative data structure that, in correspondence with a browse-related
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`activation of nodes thereof, specifies an organization imposed on items in
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`the database.
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`You have that on your slide. It's in the upper right corner.
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`JUDGE BLANKENSHIP: Excuse me, I see the word "operative"
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`a lot, but I don't see construction for it. How are we supposed to interpret
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`operative?
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`MR. O'BRIEN: I believe the expert testimony in this case
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`establishes the context for the hierarchy in its operative nature. We haven't
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`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
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`done a construction within a construction within a construction for each
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`word. However, we would understand its usage to be describing the nature
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`of it in structuring the operation of an application program. In this case it's
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`in all our claims. It's an application server on the contents of the database,
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`so it's that operative nature of the hierarchy and we can go into -- as we go
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`through the actual elements here, the particular items and the particular
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`nodes and hierarchy and how they play out.
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`So Dr. Nettles has testified, as I just described, that construction
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`we believe is very well supported in the specification as read by a person of
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`ordinary skill in the art, namely Dr. Nettles has testified as to that.
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`Moreover, although Petitioner has suggested that construction is a
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`bit narrower than the Board's construction, Dr. Nettles' construction really is
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`consistent with the entirety of the Microsoft computer dictionary definition
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`that the Board brought to bear in its Institution Decision, so its construction
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`for purposes of institution.
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`That aspect is detailed on your slide and I do want to highlight
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`some aspects of the full text of that definition, although I know the Board
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`has focused primarily on the first sentence.
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`So the full text of the Microsoft definition confirms the Patent
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`Owner's point that in computing applications, such as here disclosed and as
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`claimed in the '282 patent, hierarchies are actually and operatively used to
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`do things. So that's going to your point, Judge Blankenship.
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`Examples from that very definition itself are that hierarchies are
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`used to organize related records in a database. So if you read down in the
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`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
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`second blue box on your slide, that specific example is recited in the
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`Microsoft definition.
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`Further down in the last sentence of that definition, it's clear that
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`hierarchies are also used to establish order of precedence in which arithmetic
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`operations are to be performed in a computer. Again, a very operative thing
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`specifying the order of operations, very analogous to what Dr. Nettles has
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`described to and what we'll get to in terms of the analysis of some of the
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`intrinsic record here as an operative hierarchy.
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`So the Patent Owner --
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`JUDGE BLANKENSHIP: Well, I notice the claims that we didn't
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`go forward on, like Claim 21, has the word "operative" in it. So --
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`MR. O'BRIEN: Fair enough.
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`JUDGE BLANKENSHIP: -- wouldn't these claims have a
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`different scope than the one in 11 from 21?
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`MR. O'BRIEN: Well, differentiation is certainly a doctrine that
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`you have in play construing the claims. We think that the full nature of the
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`claim -- and by that, we would not focus in hyper-restrictive view on one
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`word. The claim as a whole needs to be understood, its imported meaning
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`needs to be understood and we think it is clear that the recitation in the claim
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`of hierarchy with its constituent nodes, with the particular characteristics of
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`the constituent nodes is, in fact, operative, and I can walk you through that
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`as we go here. But you're right, differentiation is an issue which you would
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`have to tackle in the construction.
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`So we do not, you know, fault you for going to the computer
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`dictionary definition at the outset. Frankly, at that time Petitioner had not
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`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
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`advanced. They still haven't advanced, but there's been no evidence
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`advanced by Petitioner at that point for a construction. And at that particular
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`time at institution, Patent Owner was restricted by the rules of providing any
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`testimonial evidence whatsoever, so you went with something.
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`However, at this stage of the proceedings, we believe it would --
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`you have a factual record. It's a factual record that we've helped develop
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`here. It would be error to use that first sentence and only that first sentence
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`of the Microsoft dictionary as a stepping stone to a legal conclusion that
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`hierarchy in the claims is merely an abstraction and the claims represented
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`an attempt to claim an abstraction.
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`We believe that conclusion would be contrary to the evidence
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`here, the evidentiary record of the patent itself, of Dr. Nettles' very
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`comprehensive testimony on that point regarding interpretation of the patent
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`and those terms in the claim by a person of ordinary skill, and, frankly,
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`inconsistent with the extrinsic Microsoft dictionary definition itself. So all
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`the evidence in the case, it would be inconsistent.
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`We believe that based on a proper construction of hierarchy,
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`which includes its operative nature in specifying by way of its constituent
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`nodes an organization that is imposed on the items of a database that the
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`claims are really far from an abstraction or an attempt to claim a
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`fundamental abstract concept.
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`So in slide 3 some of the analysis performed by Dr. Nettles is
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`detailed. This is an exhibit from the case. It's Exhibit 2007 presented itself,
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`but it's also included in the Patent Owner's response and discussed at pages 2
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`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
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`through 8 and in Dr. Nettles' testimony in support of the Patent Owner's
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`response, paragraphs 15 through 21.
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`So, in particular, the question presents what is an operative
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`hierarchy, in some sense following your line, Judge Blankenship. Dr.
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`Nettles annotated Figure 3 and you'll see that in the diagram here. The
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`upper portion is the figure from the specification so as to illustrate how a
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`hierarchy, as defined in Claim 1 in the application or in the patent is an
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`operative hierarchy.
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`So I'm going to summarize, but as you deliberate I want you to
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`refer to our response and I gave you the citations. I also want to give you,
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`because it does not appear on the slide, the citations to the motion to amend,
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`paragraphs 24 and 29 -- through 29 and 36 through 52 that deal with
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`construction and analysis of the proposed claims.
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`But in any case, as a preliminary, you're certainly going to note
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`that Patent Owner and Petitioner have different views of Figure 3. I think
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`that's pretty clear. The Petitioner would tell you that Figure 3 is itself an
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`abstraction, but that really is only true in the sense that every patent drawing
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`is an abstraction. It abstracts what it seeks to illustrate.
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`So, for example, a block diagram of a microprocessor design, it's
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`an abstraction. It isn't the design. A circuit diagram and its particular
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`symbology is an abstract, too, of an actual circuit it depicts. There's really
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`no different analysis here or for a major semi-conductor company than there
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`is for a software company. Likewise, there's no analytical difference for
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`method claims that recite a circuit versus those that recite a hierarchy. So
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`we really urge you to avoid the temptation that has been presented you to
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`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
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`conflate the abstraction by illustration, which is what Figure 3 does, like
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`every drawing or figure, with the abstract idea and preemption analysis,
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`which you must do under 101.
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`So the factual record here, and that's Dr. Nettles' testimony, he
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`walks us through from the perspective of a person of ordinary skill. He tells
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`us really the true import of that figure in the context of this specification and
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`how it illustrates the computation system mechanism that allows the
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`computer, for example, a web server and perhaps related information
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`systems to define in a flexible way an expressive and, most importantly, in
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`an operative way an organization of data items in a database so as to
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`facilitate presentation to users and its actual use.
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`For example, human users browsing content served by a website
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`of sets of data, relevant subsets of items in the database. The drawing
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`illustrates the role of the website presentation, the database, the hierarchy in
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`the middle and the flows through this system. All of this comes directly
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`from the specification as presented to you by a person of skill in the art and
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`it's part of the intrinsic record of -- it's part of the record of these
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`proceedings.
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`So that in, particular, I'm going to point you to paragraphs 15
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`through 21 of Dr. Nettles' deck, Exhibit 2003. So walking you through it in
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`some detail, I'm traversing through the hierarchy and showing how it is
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`operative would be helpful to follow Judge Blankenship's question.
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`So upon a user's browse-related activation of a node, and there is a
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`notation here, browse activated node A, and it's also 152 is the other
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`reference. A system that employs the operative hierarchy. It generates and
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`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
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`includes, which in turn generates a database query, which is submitted to a
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`database and relevant results or subsets of items in the database -- that's the
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`term in the claim -- in the database and subsets and items are all in the claim
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`are returned to be presented to a user at the user's computer.
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`So constraints, which are specified at the browse activated node A
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`shown in the drawing and the activated nodes parent -- so those are nodes
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`that are annotated for your convenience as B, C and D define -- excuse me,
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`those -- the A and the B in the parentage nodes, those constraints are
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`specified. They are aggregated to generate the include rule that's shown.
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`The include rule is the exemplary include rule that's used in the specification
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`to describe operation of this hierarchy in the context of the illustrated system
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`and to generate the database query.
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`So, likewise, that's the constraint aspect of the claim. Likewise,
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`there are logical groupings that are established by other nodes, for example,
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`in this illustration node E and node F that define other subsets of items in the
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`database. Per Dr. Nettles, those logical groupings are expressed without
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`constraints, but rather by outright specification as in the case of node E,
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`which is used as an example of the subset, for example, an enumeration of
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`skews or items that are placed on clearance.
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`So when you have both the constraints and logical groupings, we
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`walked through their use. Together the nodes in this operative hierarchy --
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`JUDGE BLANKENSHIP: Excuse me, what claim are we talking
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`about?
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`MR. O'BRIEN: So we're speaking to Claim 11 here. Some of
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`these terms appear in the other claims as well and I'd be happy to talk to you
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`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
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`about Claim 1, if that's your question, but I'm speaking directly to Claim 11
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`at this point.
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`JUDGE BLANKENSHIP: All right. Thank you.
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`MR. O'BRIEN: Together the nodes of this operative hierarchy
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`impose an organization on items that are stored in the database. They do it
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`by coding a mechanism by which an application server may for a particular
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`browse activated node to either query and for particular items stored in the
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`database. So you may ask -- that's a lot of detail here and I spent a good
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`amount of time on it, but really is a central issue in the case. It goes to the
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`first question out of the gate.
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`So why do we belabor this? It's really because the factual -- it's
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`factual record that you have to consider in understanding what that claim
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`means or what these claims mean, and that's the record which is going to
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`help you determine whether the hierarchy recited in our claims is operative
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`or whether it's merely a descriptive abstraction, a relatively central issue in
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`the case.
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`It also will help you understand whether the claims, including the
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`dependent claims that we'll get to, include meaningful limitations, such that
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`they do not encompass all practical applications of the abstract idea that's
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`here alleged. And just as a reminder, the abstract idea on which these
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`proceedings were instituted is representing a plurality of items in a database
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`hierarchically. So it helps you to evaluate that.
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`Finally, it's pertinent to your evaluation of whether the motion to
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`amend claims to the extent the Board finds any of 11 through 16 are lacking
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`under Section 101 or relative to the replacement claims for the first claim
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`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
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`set, Claim 1, are responsive to the grounds of patentability in this trial and
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`we believe they clearly are, but it's pertinent for all these issues.
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`I would like you to put, if you have room on your desk because I
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`think it is helpful, slides 3 and 4 next to each other, because it does illustrate
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`a point that we're really trying to make here, and that is the claims -- now
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`turning to slide 4, but hopefully you'll have in your field of view slide 3.
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`JUDGE TURNER: Counsel, before you move on, a quick
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`question?
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`MR. O'BRIEN: Sure.
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`JUDGE TURNER: Can you give me an example of a hierarchy
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`that wouldn't be operative?
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`MR. O'BRIEN: Well, there are certainly the hierarchies that are
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`merely organizational or representational. Here we have one in which
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`specific constraints and specific logical groupings are defined. So we feel
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`ours is clearly operative. I don't know that we have to identify ones that are
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`merely abstract, although I would say that that's sort of is the presumption
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`which the Board instituted on and the presumption which the Petitioner has
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`raised throughout the course of these proceedings.
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`So I think there are hierarchies that would be merely abstract and
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`not operative. Our issue is the one that we describe here. And in the context
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`of this specification as opposed to, you know, usage divorced from this
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`specification, this one is operative.
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`JUDGE TURNER: I don't think you have to. You certainly don't
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`have to provide me with an example. It just might be helpful to
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`differentiate, because I think if I have items and I arrange them, perhaps in
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`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
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`some respects that's operative. The arrangement, therefore, you know,
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`provides some manner there, but I think you'd say that that's -- you know, I
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`could do that with pen and paper.
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`I'm trying to just find out where the line is, where would I have a
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`hierarchy that would be nonoperative I guess. So if I follow along with your
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`construction, I want to know where do I stop in the nodes.
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`MR. O'BRIEN: Well, I think what we can tell you is where your
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`analysis ends with our claim and that ends with the particular specification
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`that anchors the construction of terms. Whether there are hierarchies that
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`you might draw on a piece of paper that organize genuses and species and
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`animals and plants, that might be something that is a mere abstraction. That
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`is not what this case presents. Does that help? Perhaps not?
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`JUDGE TURNER: You've answered my question. Thank you.
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`MR. O'BRIEN: So as you have these slides side by side, you'll
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`notice the abstract concept that is proposed by the Petitioner or proposed by
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`the Board for that matter. In that context the highlighted portions of Claim
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`11 detail items -- and I'm on 4, Judge Turner. They detail items in the
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`database that are apportioned in the subsets. That's positively recited in the
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`claim.
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`They detail a method that includes representing each such subset
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`with a constituent node of the operative hierarchy, and in the case of the first
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`portion nodes, specifying one or more constraints that define scope of a
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`respective apportioned into subset of the items in that database. Likewise
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`with the -- in similar form in the case of the second portion nodes, and each
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`of the second portion nodes, those establish a logical grouping that define
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`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
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`the respective apportioned into subset again of items in the database, and
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`these recited features together and really as a whole, which is your inquiry
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`here, provide the operative hierarchy that we have described.
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`So also on this slide you'll see some of the dependent claims that
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`are at issue, particularly Claims 13, 14, 15 and 16 that depend from Claim
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`11. They provide further detail as well. In particular, Claim 15 specifies an
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`aggregation of constraints that comprise -- that specifies that the aggregation
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`of constraints comprises a search rule. In the slide immediately adjacent on
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`your desk, you'll see that aspect in the illustration. You'll refresh on the
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`explanatory comments of Dr. Nettles.
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`Claim 16 further provides that the operable nature of the hierarchy
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`in response to that activation of the leaf node, it is to determine the specific
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`aggregation of hierarchy specified constraints and to generate the search
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`rule. Again, when you refer to your adjacent slide, you'll see those features
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`there. You'll understand what they mean with the help of Dr. Nettles and the
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`factual record that you have before you.
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`Finally, in sort of combination here, Claim 14 specifies a
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`particular aggregation of constraints specified by a given node and its
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`ancestors. That aspect actually comes into dependency from Claim 13 using
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`a particular aggregation, namely logical ANDing.
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`So reading these claims -- and I'm speaking to you about 11
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`through 16 here that are facing you on the page together with the factual
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`record summary from Dr. Nettles. Reading them as a mere abstraction is
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`really only possible if you ignore the meaningful claim limitations, if you
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`ignore the scope of the claims as properly understood by a person of
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`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
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`ordinary skill. Dr. Nettles establishes that in the record and you need to
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`consider that.
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`So, moreover, Your Honors will recall that previously found
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`features similar to these that we're discussing right now appear in dependent
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`-- appear in the dependent claims you found to be determinative of the fact
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`that Petitioner had not carried its burden of unpatentability on Claims 21
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`through 23 under Section 101. That's at the Institution Decision at pages 15
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`to 16, just to cite it for the record there.
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`Particular features that you identified -- there were several, but
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`two I really want to highlight based on this set of issues presenting on the
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`pages here in front of you are the aggregation of constraints, the aggregating
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`of constraints and the formation of a search rule. So we've been here before.
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`The other part and a very important part in this case of the factual
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`record is the expert testimony. So in the petition, the Petitioner
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`characterized the '282 patent claims as nothing more than the abstract idea of
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`organizing product data to facilitate catalog browsing. They also have
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`another alternative. That was merely directed to the abstract idea of
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`organized product related data in a specific arrangement. Those were the
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`two they proposed.
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`The Institution Decision, your Institution Decision, considered the
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`Petitioner's proposed abstract ideas, but, instead, you chose to institute trial
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`based on the conclusion that Claim 11 as a whole -- that's the right analysis
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`-- can be summarized by being drawn to the abstract idea of representing a
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`plurality of items in a database hierarchically. That's the abstract idea on
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`which this trial was instituted and on which these proceedings are based.
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`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
`
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`Dr. Nettles, Patent Owner's expert, considered that abstract idea,
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`your abstract idea, frankly, as well as those proposed by the Petitioner, but
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`not adopted. And he concluded based on his analysis that Claim 1 and its
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`dependents include meaningful limitations, such that the claims do not
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`preempt or completely monopolize either the Board's instituted-upon
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`abstract idea or any of those proposed by Petitioner.
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`So that's pretty important, and to walk you through it, we
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`summarize it on the slide here, but we do refer to --
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`JUDGE BLANKENSHIP: Excuse me.
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`MR. O'BRIEN: Yes.
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`JUDGE BLANKENSHIP: We're dealing with a question of law
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`and we're dealing with claim construction, question of law, so what are the
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`facts? It seems like the expert is just looking at the specification and saying
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`one of ordinary skill in the art would read it this way, but what's the factual
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`basis for that?
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`MR. O'BRIEN: Certainly. That's a good question. So, first off,
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`there are a number of facts, which are really underlying to the inquiries that
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`you identified. One is the level of skill, which he has testified to. One is the
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`meaning of terms. Another is -- others have to do with the scope of
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`preemption. Those are clearly underlying factual issues. The case law
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`establishes that. The set of practical alternatives, all of those are underlying
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`factual issues.
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`So he testifies as to each of those and on the set of practical
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`alternatives, if you're speaking to -- on the point that I'm speaking to right
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` 16
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`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
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`now, I have several that I'd like to summarize for you from the record and I'll
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`give you the citations for them.
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`So, in particular, Dr. Nettles testified or included in his declaration
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`the explanation for you that the claims do require specific hierarchy that has
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`two different types of nodes, number one. The first portion nodes that
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`specify one or more constraints defining the scope of respective apportioned
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`into subsets of the items and the second portion nodes. We've been through
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`that aspect before.
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`On the practical alternate comes directly from the testimony. On
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`the practical alternatives, Dr. Nettles identified two very important ones for
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`you and I'll point you to the record here, Exhibit 2003, paragraphs 36 and 37
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`as well as paragraph 38, and those are in sequence.
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`On the first one, 36 through 37, the point is there that
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`hierarchically represented data that one practical alternative that exists is a
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`hierarchically represented database with only constraint specifying nodes.
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`You'll recall that the claims require two types of nodes. So on its face, a
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`practical alternative includes only one type of node would be an example
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`that falls within your abstract idea and yet -- so it's embraced by the abstract
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`idea in issue in these proceedings and yet is not covered by the claim. That
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`is a classic example, therefore, of lack of preemption. And by definition
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`then, the terms in the claim are meaningful limitations, because they
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`establish that the claim does not preempt the entire scope of the abstract
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`idea. That's one.
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`Second, the other implementation, the other practical alternative
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`specifically identified by Dr. Nettles and that is part of your factual record
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`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
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`here is implementations of databases that are themselves physically ordered
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`hierarchically, even without first type nodes. So no first, no second type
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`nodes. So no first type constraint specifying nodes is the point to me. That's
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`the one at paragraph 38.
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`I would point out to you that he isn't just making these things up.
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`I mean, one, he has the expertise to identify them in the field. However, in
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`each of these cases, these examples come directly from the specification and
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`in your factual record he identifies for you where in the specification they
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`come from.
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`So on that point the necessary consequent of that is informed by
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`the case law and the case law is generally consistent on this point that the
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`relevant inquiry under 101 is whether the claim as a whole includes
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`meaningful limitations or in some parlances significantly more than the
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`purported abstract idea, thereby restricting the claim to an application rather
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`than preempting or monopolizing the abstract idea itself. That's the baseline.
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`I think that's pretty consistent in the case law.
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`Here the purported abstract idea is that upon which the Board
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`instituted. On this preemption analysis, even Petitioner's expert agreed, and
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`I'll ask you to turn to -- that's on the right-hand pane of slide 5. When he
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`was asked -- and this is Dr. Greenspun. It's reproduced from Exhibit 2009 at
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`the citation that's before you on the slide, page 116, line 7 through 21.
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`Dr. Greenspun confirmed that Claim 1 would not preempt all
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`practical implementations of your idea through your abstract idea on which
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`trial was instituted, namely representing a plurality of items in a database
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`Case Nos. CBM2013-00017 & CBM2013-00018
`Patent Nos. 6,834,282 & 7,426,481
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`hierarchically. Excuse me for a second. That's a relatively dispositive --
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`that's a dispositive point.
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`JUDGE BLANKENSHIP: Are you suggesting we should have
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`used more words to describe the abstract idea?
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`MR. O'BRIEN: Not really. I think your selection of words is and
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`should be constrained to finding something that's fundamental. This isn't a
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`game of taking a
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