trials@uspto.gov
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`571-272-7822
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`CBM2015-00028, Paper No. 42
`CBM2015-00029, Paper No. 41
`March 8, 2016
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`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`APPLE INC., ET AL.,
`Petitioner,
`vs.
`SMARTFLASH LLC,
`Patent Owner.
`- - - - - -
`CBM2015-00028 (Patent 7,334,720)
`CBM2015-00029 (Patent 7,334,720)
`Technology Center 2800
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`Oral Hearing Held: Wednesday, January 6, 2016
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`
`
`
`
`Before: JENNIFER S. BISK; RAMA G. ELLURU; GREGG
`ANDERSON (via video link); and MATTHEW R. CLEMENTS (via video
`link); Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Wednesday,
`January 6, 2016, at 2:16 p.m., Hearing Room B, taken at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`REPORTED BY: RAYMOND G. BRYNTESON, RMR,
`
`CRR, RDR
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`
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`571-272-7822
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`CBM2015-00028, Paper No. 42
`CBM2015-00029, Paper No. 41
`March 8, 2016
`
`
`
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`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`APPLE INC., ET AL.,
`Petitioner,
`vs.
`SMARTFLASH LLC,
`Patent Owner.
`- - - - - -
`CBM2015-00028 (Patent 7,334,720)
`CBM2015-00029 (Patent 7,334,720)
`Technology Center 2800
`
`Oral Hearing Held: Wednesday, January 6, 2016
`
`
`
`
`
`Before: JENNIFER S. BISK; RAMA G. ELLURU; GREGG
`ANDERSON (via video link); and MATTHEW R. CLEMENTS (via video
`link); Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Wednesday,
`January 6, 2016, at 2:16 p.m., Hearing Room B, taken at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`REPORTED BY: RAYMOND G. BRYNTESON, RMR,
`
`CRR, RDR
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`
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`APPEARANCES:
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`ON BEHALF OF PETITIONER APPLE:
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`J. STEVEN BAUGHMAN, ESQ.
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`Ropes & Gray LLP
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`2099 Pennsylvania Avenue, N.W.
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`Washington, D.C. 20006-6807
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`202-508-4600
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`JAMES R. BATCHELDER, ESQ.
`Ropes & Gray LLP
`1900 University Avenue, Sixth Floor
`East Palo Alto, California 94303-2284
`650-617-4000
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`CYNDI WHEELER, ESQ. (via telephone)
`Apple Representative
`
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`ON BEHALF OF PETITIONER GOOGLE:
`
`ANDREW M. HOLMES, ESQ.
`Quinn Emanuel Urquhart & Sullivan LLP
`50 California Street, 22nd Floor
`San Francisco, California 94111
`415-875-6322
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`ON BEHALF OF PETITIONER GOOGLE: (Continued)
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`PATRICK WESTON, ESQ.
`1600 Amphitheatre Parkway
`Mountain View, California 94043
`650-253-5416
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`ON BEHALF OF THE PATENT OWNER:
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`MICHAEL R. CASEY, PH.D., ESQ.
`Davidson Berquist Jackson & Gowdey LLP
`8300 Greensboro Drive
`Suite 500
`McLean, Virginia 22102
`571-765-7705
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`3
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`CBM2015-00028 (Patent 7,334,720)
`CBM2015-00029 (Patent 7,334,720)
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`P R O C E E D I N G S
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`(2:16 p.m.)
`JUDGE ELLURU: This is the final hearing for
`CBM2015- 00028 and CBM2015- 00029, Apple Inc. against
`Smartflash LLC. CBM2015- 00125, Google, Inc. against
`Smartflash LLC has been consolidated with these cases.
`To my right is Judge Bisk. And I'm going to ask
`anyone who is on the line to mute their line, please.
`I'm Judge Elluru. To my right is Judge Bisk, and
`appearing remotely from San Jose is Judge Clements and from
`San Diego is Judge Anderson. And I will ask again for anyone
`on the line to mute, to please mute their lines.
`Let's begin with appearances of counsel, starting
`with Petitioner Apple.
`MR. BAUGHMAN: Your Honor, Steve Baughman
`and Jim Batchelder, along with Cyndi Wheeler on the phone
`from Apple.
`JUDGE ELLURU: Thank you. Petitioner Google?
`MR. HOLMES: Your Honor, Andrew Holmes on
`behalf of Google, and with me from Google is Patrick Weston.
`JUDGE ELLURU: Thank you. And Patent Owner?
`MR. CASEY: Michael Casey on behalf of
`Smartflash LLC.
`JUDGE ELLURU: Each party, Petitioner Apple
`and Patent Owner Smartflash, will have 30 minutes each of
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`total time to present arguments in these two cases. Petitioner
`Apple has the burden so it will go first. Then Patent Owner
`Smartflash will argue its opposition to Petitioner's case. And
`then, if Petitioner Apple has reserved any time, Petitioner can
`use that time for rebuttal.
`Please remember that Judges Clements and
`Anderson cannot see whatever is being projected on the
`screen. So when you refer to a demonstrative on the screen,
`please state the slide number so these judges can follow along
`and so we have a clear transcript.
`Also, please make clear at all times to which case
`and to which claim the particular argument relates. I will use
`the clock on the wall in the hearing room to time you and I
`will give you a warning when you are getting to the end of
`your allotted time.
`Mr. Baughman, you may proceed when you are
`
`ready.
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`MR. BAUGHMAN: Good afternoon, Your Honors.
`May it please the Board. We would like to reserve eight
`minutes of our time for rebuttal, please.
`As before, particularly given the time limits here
`today, we rely on the positions and evidence Apple provided in
`briefing to support our arguments in these two trials, on the
`'720 patent.
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`CBM2015-00028 (Patent 7,334,720)
`CBM2015-00029 (Patent 7,334,720)
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`To assist the Board in considering that record, just
`as we did in the November 9th trials on Section 101 issues,
`and all the related Smartflash patents, we plan to address in
`our opening comments two general topics, along with any
`questions the Board may have.
`We plan to spend the bulk of our opening time with
`my colleague, Mr. Batchelder, addressing the single issue that
`actually matters to the outcome of these proceedings, and
`that's the ineligibility of claims 1, 2, 3 and 15 of the '720
`patent under the Supreme Court's two-step inquiry mandated
`here in Mayo and Alice.
`Mr. Batchelder will focus in particular on the
`second prong of that test because, as in the prior trials, Patent
`Owner has presented no argument whatsoever to contest that
`its claims are directed to abstract ideas under the first prong
`of Mayo and Alice.
`It is also never disputed the articulation of those
`abstract ideas. And what is left other than elements directed
`to those abstract ideas does not amount to an inventive concept
`that could render the claims patentable.
`And just to elaborate on a comment I think we have
`heard from Patent Owner in these cases, as Ultramercial makes
`clear, even if some of the steps were not previously employed
`in a particular art, that is not enough standing alone to confer
`patentability. That's page 716 of the Ultramercial case.
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`CBM2015-00028 (Patent 7,334,720)
`CBM2015-00029 (Patent 7,334,720)
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`Before Mr. Batchelder takes the podium I will
`quickly touch on Patent Owner's reiterated but legally
`misguided arguments about preemption, which have zero
`impact on the decision the Board is asked to make in these
`proceedings.
`Just as we made clear in the prior trials involving
`these parties, the Supreme Court and the Federal Circuit have
`made clear that preemption is not a separate or alternative test
`for subject matter eligibility under Section 101. It is certainly
`not the end run around the Mayo test that Patent Owner has
`argued for.
`I will also be prepared if the Board should have
`any questions to address construction of payment data or any
`of the other arguments Patent Owner has raised.
`If we could turn to Petitioner's slide 2, there is a
`relatively narrow list of issues remaining in dispute before us.
`This is a table of contents of slides. We have material
`available to address a number of topics that might arise today,
`and an appendix with some additional detail if that should be
`necessary.
`Before we jump in, I have two brief observations
`about the kind of arguments and evidence Patent Owner has
`put before the Board. The first, with apologies to Yogi Berra,
`it is sort of déjà vu all over again.
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`CBM2015-00029 (Patent 7,334,720)
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`As Judge Elluru asked Smartflash's counsel on
`November 9, looking at the claims here today Patent Owner
`has really argued nothing different or special among them to
`distinguish the various claims you will hear today, nothing to
`suggest that one is patent eligible in a way that the others
`would fail under Section 101.
`There are some changed circumstances here today.
`We have before us -- because the Patent Owner's arguments
`are essentially the same -- the benefit of a series of admissions
`from the Patent Owner, from November, about what the law of
`Section 101 is and isn't and about the nature of the problems
`supposedly solved by the challenged patents.
`We can cite the transcript to those if this should
`come up in discussion today.
`As we also know from November, Patent Owner
`may be tempted to make new arguments about the first prong
`of Mayo and Alice that were unquestionably waived. So we
`shouldn't be hearing today anything about the claims that are
`supposedly new that they didn't try to argue in November or
`that are not in the papers presented here, which essentially
`mirror those from the November cases.
`Patent Owner has waived the first prong of Mayo.
`There is no argument from Patent Owner disputing Petitioner's
`position under Mayo step 1, which the Board agreed with in its
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`Institution Decision, finding the claims to be directed to
`abstract ideas.
`Patent Owner has also never said one word to
`dispute the articulation of the abstract ideas to which those
`claims are directed. To confirm, let's take a look at their
`Patent Owner responses. We're going to look at Paper 23 in
`the 00028 matter. Here in the table of contents, Section 5A,
`the Patent Owner admits there is a two-part test for statutory
`subject matter, and then in 2B jumps right away to the second
`step. There is no argument from Patent Owner about the first
`step. It is waived.
`The second point we ask the Board to bear in mind
`is the focus of Patent Owner's arguments throughout this
`proceeding, including in its demonstratives today. Patent
`Owner spends the vast majority of its time and pages making
`arguments that have no impact on the outcome.
`Taking a look at the table of contents, even as to
`the second prong of Mayo and Alice, instead of focusing on
`the test, that is, what in its claims remains and adds
`significantly more than the abstract idea in a way that could
`supply an inventive concept, that the Supreme Court has
`taught us could make them patent eligible, instead Patent
`Owner spends most of its time arguing about DDR or about
`three categories of preemption arguments.
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`Taking a look at our slide 38, we note preemption
`is not the test for subject matter eligibility. How do we know
`this? The Supreme Court told us so in Mayo, that's cited on
`the left side of slide 38. The Federal Circuit told us so in
`Ariosa, cited in the upper right of slide 38. The Board told us
`so in Cambridge Associates, cited in the lower right of slide
`38.
`
`Now, turning to slide 40, we also know that
`non-infringing alternatives is not the test for subject matter
`eligibility. It is really just a flavor of preemption.
`The Patent Owner's arguments in this regard have
`been repeatedly rejected by the Federal Circuit, including by
`Ariosa in the top box here, where the Federal Circuit said
`showing alternative uses outside of the scope of the claims
`doesn't change the conclusion they're directed to patent
`ineligible subject matter.
`The same is true in Ultramercial. The Federal
`Circuit rejected claims as patent ineligible, despite its prior
`vacated opinion, quoted here in the third box, that there were
`myriad ways to accomplish the idea of monetizing advertising
`that do not infringe.
`And taking a look at our slide 39, the Federal
`Circuit said the same thing in OIP, that the claims don't
`preempt doesn't make them any less abstract.
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`Now, where does Patent Owner identify the law
`supporting its constant arguments about non-infringing
`alternatives? Nowhere, because the law doesn't support the
`argument.
`Remarkably, Patent Owner's July 29th Patent
`Owner responses say nothing about Ariosa, which came up
`more than a month earlier, and which Patent Owner was
`arguing to this Board a week beforehand, and which was
`featured in Paper 22 before the responses were filed. That's an
`order from the Board.
`Taking a look at Patent Owner's demonstratives,
`you may see the reason Patent Owner did not cite Ariosa.
`Every one of its 23 slides here is focused on non -infringing
`alternatives, and simply a species of preemption that is not the
`test here.
`
`Respectfully, Patent Owner's silence about Ariosa
`and the law governing this case speaks volumes, and its
`attempt to avoid the mandatory 101 analysis with a preemption
`sideshow violates what the Supreme Court and the Federal
`Circuit have told us is the governing law.
`JUDGE ELLURU: Counsel, with respect to the
`second step of the Alice test, what is your response to Patent
`Owner's argument that the use rules and content is stored in
`the same place?
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`CBM2015-00029 (Patent 7,334,720)
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`MR. BAUGHMAN: Well, first of all, Your Honor,
`I think storing two types of data in the same place is shown, in
`cases like Intellectual Ventures, to be insufficient to confer
`patentability. In that case there were two kinds of data stored
`in a database. The court talked about that as general computer
`activity that failed to confer patentability.
`JUDGE BISK: What case were you referring to?
`MR. BAUGHMAN: Intellectual Ventures, Your
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`Honor.
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`JUDGE BISK: Is that Intellectual Ventures versus
`Capital One?
`MR. BAUGHMAN: I apologize. I can get the cite
`for Your Honor.
`JUDGE BISK: Okay. We have a lot of Intellectual
`Ventures cases here.
`MR. BAUGHMAN: It is Intellectual Ventures
`versus Capital One, Your Honor. That discussion is on page
`1368.
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`With that, Your Honor, I do have a lot more
`substance to come with Mr. Batchelder on prong 2, if I may
`pass the podium to him, unless you have a follow- up question.
`JUDGE ELLURU: You know, but I would like to
`talk about that a little further.
`MR. BAUGHMAN: Sure. Thanks, Your Honor.
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`MR. BATCHELDER: James Batchelder on behalf
`of Apple. May it please the Board. Let me turn, with the
`Board's permission, directly to Mayo step 2, and why don't I
`jump right to Judge Elluru's question about storing content and
`rules together.
`And let me address this in a few layers, if I might,
`Your Honor. Layer 1 is Alice says computerizing is not
`enough. Ultramercial says Internetizing is not enough. The
`notion of an Internet, of course, is a linked series of
`computers. All computers are known to have memories.
`An Internet, therefore, offers opportunities to store
`any kind of data on the Internet in any node, and storing any
`two kinds of data on the Internet at any given node is simply a
`design choice. It has just been baked into the idea of an
`Internet, since an Internet or computer network has existed.
`That's one layer.
`We also have Dr. Wechselberger explaining that
`that was known in the art. There is nothing inventive about
`that idea. And he points -- he did that, for example, in his
`declaration at pages 88 and 58, and paragraph 69, 143, 36, 37,
`73, but he also introduced prior art.
`And if I could show some prior art that he pointed
`to that did this very thing, I think that would be easier. So if
`we can see Petitioner slide 16, please. So this was Patent
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`Owner's, a copy of Patent Owner's argument about this,
`combining content and a rule.
`And, again, Dr. Wechselberger explained there was
`nothing inventive about that idea, but he pointed out art as
`belt and suspenders, so in the Kopp prior art reference, which
`is Exhibit 1204, you have the data record itself that starts by
`saying data regarding the extent of utilization are entered into
`the data record. I would add that the extended utilization is
`also use status data.
`And the number of possible utilizations of the data
`record, the length of time during which a data record can be
`used, that's the rule, or the time limit up to which the data
`record may be used. That's also the rule. The thus changed
`data record is then sent via the interface device to the chip
`card where it is stored in a memory device.
`So the data record itself is infused with the
`use status data and the rule and it becomes "the thus changed
`data record." So it was all stored together. Again, it is no
`surprise that that would have happened. This is just a design
`choice Internetizing the old idea of paying for content.
`The same is true in the Ahmad reference. This is
`Exhibit 1203. After completing the required rental form, the
`user downloads the desired program module 100 and the
`software monitor 140 to the hard disk drive of his or her
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`computer, and the software monitor stored the rules that would
`govern the use of the program module.
`And then it was also true in the prior art, the
`Poggio reference, this is Exhibit 1215, rental products are
`formatted to include a time bomb or other disabling device
`which will disable the product at the end of the rental period.
`The rental period, of course, is the rule, and the time bomb is
`stored with the content in order to effectuate that rule.
`So storing content with rules, content with the
`status data, again, it is fundamental to an Internet that you
`have that design choice. But it was all over the prior art,
`including the prior art of e-vending electronic content, which
`is exactly what these claims are about.
`So if I could back up and just talk about the
`inventive concept generally, if I could turn to slide 9, our
`evidence addresses each of these eight bullet points and we
`have slides summarizing them.
`One, that Petitioner's expert testimony is
`unrebutted; that the length or particularity of a claim is
`insufficient. There needs to be something inventive once you
`tease out the abstract idea.
`The features alleged by Patent Owner to be
`inventive were known, to the extent they even make any such
`allegations. That discussion begins on slide 14.
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`CBM2015-00028 (Patent 7,334,720)
`CBM2015-00029 (Patent 7,334,720)
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`Every claimed hardware component was known.
`That discussion begins on slide 18. Every claimed function
`was known. That discussion begins on slide 20. Viewed as an
`ordered combination, the claim elements lack any inventive
`concept. That discussion begins on slide 29.
`The challenged claims are comparable to other
`claims, in particular Ultramercial. That's on slide 32 that
`discussion begins. And DDR is distinguishable. And that
`begins on slide 34.
`So I will hasten through some of these points. I
`know Your Honors are familiar with many of them so I don't
`want to, in the interest of time, belabor some of them, but I do
`want to at least hit them.
`So on slide 10 we have a summary of Mr.
`Wechselberger's testimony on the left. These are quotes from
`his opinions. He addresses the claimed hardware. He
`addresses the claimed steps. And he concludes by saying: In
`my opinion, the asserted claims are directed to nothing more
`than implementing the basic concept of providing access to
`content based on payment data and/or rules using generic
`features present on general purpose computers.
`And he backs up that opinion with quite a bit of
`detail about the individual hardware, individual functions,
`prior art that existed, what one of ordinary skill in the art
`would have understood. It is quite a rigorous analysis. And
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`CBM2015-00028 (Patent 7,334,720)
`CBM2015-00029 (Patent 7,334,720)
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`Patent Owner responds with nothing whatsoever. It is utterly
`unrebutted testimony.
`Patent Owner has argued or at least insinuated that,
`boy, these are long claims, and length of claims should matter.
`Surely there has got to be something in there.
`If we could turn to slide 11, if that were the rule,
`then the Alice claim would have been found patent eligible.
`This claim is 19 lines long. And, again, the abstract idea in
`Alice was intermediated settlement. That's two words. Yet
`this claim occupies 19 lines. There are lots of words in here
`and there is some particularity in here that isn't necessary for
`intermediated settlement.
`For example, in the third limitation, the data
`storage unit has information about a first account for a first
`party. It is independent from a second account, independent
`from a third and fourth account.
`There is an electronically adjust step B around the
`middle of the page, and in particular an electronic adjusting
`isn't necessary for intermediated settlement, and then there is
`a step, toward the end of that: After ensuring that said first
`party and/or said second party have adequate value in said
`first account and/or said third party account, respectively.
`That not only is not necessary for intermediated
`settlement. That's a detail or a particularity that goes beyond
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`the abstract idea. I would submit it is also a rule that gets
`implemented in this claim.
`And you see in the final step, the wherein clause
`requires the instruction to be an irrevocable time invariant
`obligation, and also goes beyond the idea of an intermediated
`settlement. It adds detail and particularity. And yet none of
`that was found to confer patent eligibility because none of
`those additional steps or details or particularities were
`inventive. Inventiveness is the test in the second step.
`If we could look at the Ultramercial claim, on the
`next slide 12, again, a very long claim. The abstract idea here
`is using advertising as currency. That's just a few words.
`There are 24 lines of claim. Again, there is quite a bit of
`particularity and detail here that goes beyond the abstract idea,
`and yet this claim was held to be patent ineligible.
`Why? The Federal Circuit explained so on slide
`13. It says: Certain additional limitations, such as consulting
`an activity log, add a degree of particularity.
`But then it goes on to say at the bottom: Adding
`routine additional steps, such as updating an activity log,
`requiring a request from the consumer to view the ad,
`restrictions on public access, and use of the Internet does not
`transform an otherwise abstract idea into patent eligible
`subject matter.
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`Throwing bells and whistles into a claim that add
`detail and particularity is not enough if they are not inventive.
`And that is all that Patent Owner has done with the claims that
`are challenged here.
`If we could turn to slide 18. All of the hardware
`was known. You see at the bottom in the specification the
`Patent Owner says the physical embodiment is not critical. A
`skilled person will understand that the terminals, data
`processing systems and the like, can all take a variety of
`forms. So they disclaimed any inventiveness to the hardware.
`And for good reason, when you read the list of
`hardware, that's the stuff of general purpose computers and
`networks that have been around for decades before the priority
`date.
`
`If we turn to slide 19, this just provides a map
`showing that, like a pepper shaker, Patent Owner sprinkled
`these generic computer parts throughout its claims.
`The same is true on the function, slide 20. You
`read these functions, this is the stuff of general purpose
`computing and general purpose networking. These are
`functions performed by general purpose computers and
`networks and had been so for decades before the priority date.
`And, again, slide 21, here is the pepper shaker.
`These generic functions are just sprinkled throughout the
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`claims. They add some narrowness. They add some
`particularity. They add nothing even remotely inventive.
`And Mr. Wechselberger explained this. We saw
`some of his testimony, if we could look at slide 29, he lays out
`more of that opinion in detail.
`The first three quotes are from his expert
`declaration. And he lays out that these are generic features
`present on general purpose computers. He knows the claim
`must be considered as a whole. And he says the elements of
`the challenged claims were all well known in the art and their
`combination as claimed was at a minimum obvious.
`And then he goes on to say in his deposition that
`these code elements are each -- are individually and
`collectively trivial, well known, conventional and routine.
`And he goes on, at the end, he goes through some
`of the detail and he says: You can go way down deep under
`the hood and look at these claim elements and, if they are
`accomplishing something innovative, but they are not. That
`was his unrebutted expert testimony.
`We also have case law, if we can look at slide 30,
`and the cases address many of these same kinds of limitations
`and explain that there is nothing inventive here.
`Again, Alice at the top: The mere recitation of a
`generic computer cannot transform. In the upper left you have
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`Ultramercial: Steps performed in response to things, like
`receipt of information, that can't be enough.
`Underneath that, also Ultramercial: Internetizing
`is not enough, if you will. At the bottom again we have Alice:
`Adjusting the shadow records as transactions are entered,
`allowing only those transactions for which the parties have
`sufficient resources. That's not inventive even though it
`implements a rule.
`In the upper right we have Accenture, also
`involving rules, generating tasks based on the rules to be
`completed upon the occurrence of an event. That's not
`inventive. And SAP, transferring funds in response to user
`input, that's not inventive.
`These are examples. And, you know, frankly, in
`Accenture there is quite a bit of detail about how to implement
`this rule-based methodology. Not inventive.
`And the Intellectual Venture case that Mr.
`Baughman pointed to, again, involved storing different types
`of information in a database.
`And I would add that Accenture did as well. It is
`an insurance-related system and there is a transaction database
`in Accenture, and it had policy level data, claim level data,
`participant level data, and line level data all stored in the same
`transactional database.
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`Not innovative because, of course, everyone knows
`that computers can store stuff and there are lots of different
`kinds of data that can be stored, and you can store them
`together or apart, and that has been known by a person of
`ordinary skill in the art for decades, as Mr. Wechselberger
`explained.
`
`JUDGE ELLURU: And Mr. Casey can correct me
`if I'm wrong, but I understand that his argument is not that
`only -- that two types of information data can be stored in the
`same place. It is that these particular types of data is stored in
`the same place which makes it inventive.
`MR. BATCHELDER: That may be his argument,
`Your Honor. It's a little hard to tell from his papers. But as
`we have seen, even these particular kinds of data were stored
`in the prior art together.
`And, you know, once you know, and a person of
`ordinary skill in the art knows you can store different kinds of
`data together, and you have type A and type B involved in
`your system, and of course one of ordinary skill in the art
`would have known that they could be stored at any node on the
`network either separately or together. There is nothing
`inventive about that concept.
`If we could look at Ultramercial, I know that Your
`Honors are familiar with the claim, that's slide 32, but it is so
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`analogous to the transaction that's being claimed here I think
`it is worth some time.
`If you look on the very top, the preamble is a
`method for distribution of products over the Internet. That's
`exactly the kind of thing at issue in the challenged claims
`here. And what kind of products, we see that in the first step.
`Can you highlight it as we go along, please?
`The first step, about receiving from a content
`provider media products, and we see that those are text data,
`music data, video data. That's exactly the kind of thing at
`issue here.
`We see in the second step about halfway down
`there is an activity log to verify the total number of times
`which a sponsor message has been previously presented.
`That's use status data, just as claimed.
`There is in the fourth step restricting general
`public access to the media product. That's preventing piracy.
`JUDGE ELLURU: Counsel, I just want to note that
`you have run out of time. I will give you a minute to finish.
`MR. BATCHELDER: Thank you, Your Honor.
`That will do. But there are access rules with preconditions
`about if you can view the message and when that's true, and
`the fifth step, the eighth step, the ninth step, the tenth step,
`involves saving information, and then there is payment at the
`end. So it is quite comparable.
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`Now, I will eat up a minute of my rebuttal time,
`Your Honor, if I could. Just turning quickly to DDR. Again,
`as we've talked about with the Board before, slide 34, the key
`to DDR was the override. It overrides the routine and
`conventional sequence of events. That's what the claimed
`invention did there and that's why it was found to be patent
`eligible.
`
`The OIP case confirmed that that was the key to it.
`So did the Intellectual Ventures case. And if you look on slide
`36, on the left we have the DDR language that effectuates that
`override, and on the right we have the language pointed to by
`Patent Owner as being analogous.
`In '720, claim 3, what do they point to? Payment
`validation data, access rule, data carrier. Those things were
`all over the prior art and they were obvious. They were
`completely non-inventive, no override whatsoever.
`And if you look at '720, claim 1, Patent Owner
`doesn't even attempt to analogize any of this claim language to
`the DDR override language. There is nothing inventive here.
`These claims fail the Mayo step 2 test.
`Thank you.
`JUDGE ELLURU: Thank you.
`(Pause)
`JUDGE ELLURU: You may begin, Mr. Casey.
`You have 30 minutes.
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`MR. CASEY: Thank you, Your Honor. I wanted
`to start off with --
`JUDGE ELLURU: Counsel, I'm sorry to interrupt.
`I'm going to ask whoever is on t
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