trials@uspto.gov
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`571-272-7822
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`CBM2015-00031, Paper No. 43
`CBM2015-00032, Paper No. 44
`CBM2015-00033, Paper No. 38
`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.,
`Petitioner,
`vs.
`SMARTFLASH LLC,
`Patent Owner.
`- - - - - -
`CBM2015-00031
`CBM2015-00032
`CBM2015-00033
`Patent 8,336,772
`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 3:15 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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`571-272-7822
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`CBM2015-00031, Paper No. 43
`CBM2015-00032, Paper No. 44
`CBM2015-00033, Paper No. 38
`March 8, 2016
`
`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`APPLE INC.,
`Petitioner,
`vs.
`SMARTFLASH LLC,
`Patent Owner.
`- - - - - -
`CBM2015-00031
`CBM2015-00032
`CBM2015-00033
`Patent 8,336,772
`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 3:15 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
`
`
`
`APPEARANCES:
`
`ON BEHALF OF PETITIONER APPLE:
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`J. STEVEN BAUGHMAN, ESQ.
`Ropes & Gray LLP
`2099 Pennsylvania Avenue, N.W.
`Washington, D.C. 20006-6807
`202-508-4600
`
`JAMES R. BATCHELDER, ESQ.
`Ropes & Gray LLP
`1900 University Avenue
`Sixth Floor
`East Palo Alto, California 94303-2284
`650-617-4000
`
`CYNDI WHEELER, ESQ. (via telephone)
`Apple Representative
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`2
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`APPEARANCES: (Continued)
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`ON BEHALF OF PETITIONER SAMSUNG:
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`W. KARL RENNER, ESQ.
`
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`THOMAS ROZYLOWICZ, ESQ.
`
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`Fish & Richardson P.C.
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`1425 K Street, N.W., 11th Floor
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`Washington, D.C. 20005
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`202-783-5070
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`ON BEHALF OF PETITIONER GOOGLE:
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`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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`3
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`JULIE HAN, ESQ. (via telephone)
`Samsung Representative
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`APPEARANCES: (Continued)
`
`ON BEHALF OF PETITIONER GOOGLE:
`
`
`
`PATRICK WESTON, ESQ.
`
`
`
`1600 Amphitheatre Parkway
`
`
`Mountain View, California 94043
`
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`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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`CBM2015-00031, CBM2015-00032, CBM2015-00033
`Patent 8,336,772
`
`
`P R O C E E D I N G S
`
`(3:15 p.m.)
`JUDGE ELLURU: This is the final hearing for
`CBM2015-00031, CBM2015- 00032 and CBM2015- 00033,
`Apple Inc. against Smartflash LLC.
`CBM2015-00059, Samsung Electronics America,
`Inc. and Samsung Electronics Company Limited against
`Smartflash LLC has been consolidated with these cases.
`CBM2015-00132, Google, Inc. against Smartflash LLC, has
`been consolidated with these cases.
`I'm Judge Elluru, and to my right is Judge Bisk.
`And appearing remotely from San Jose is Judge Clements and
`from San Diego is Judge Anderson.
`Let's begin with appearances of counsel starting
`with Petitioner Apple.
`MR. BAUGHMAN: Your Honor, Steve Baughman
`and Jim Batchelder for Apple. With us on the phone is Cyndi
`Wheeler. Thank you.
`JUDGE ELLURU: Thank you. Petitioner
`Samsung?
`MR. RENNER: Your Honor, Karl Renner, and on
`the phone is Julie Han, and Tom Rozylowicz.
`JUDGE ELLURU: Thank you. And Petitioner
`
`Google?
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`5
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`CBM2015-00031, CBM2015-00032, CBM2015-00033
`Patent 8,336,772
`
`
`MR. HOLMES: Your Honor, Andrew Holmes on
`behalf of Google, and with me is Patrick Weston from Google.
`JUDGE ELLURU: And Patent Owner?
`MR. CASEY: Good afternoon, Your Honor.
`Michael Casey, from Davidson Berquist Jackson & Gowdey,
`on behalf of Patent Owner, Smartflash LLC.
`JUDGE ELLURU: Thank you. Each party,
`Petitioner Apple and Patent Owner Smartflash, will have 45
`minutes each of total time to present its arguments. And I also
`want to remind the parties that there will be a separate
`transcript for this hearing.
`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 Plenz --
`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 in particular your argument relates. I will
`use the clock on the wall in the hearing room to time you, and
`will give you a warning when you are reaching the end of your
`argument time.
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`CBM2015-00031, CBM2015-00032, CBM2015-00033
`Patent 8,336,772
`
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`Mr. Baughman, whenever you are ready.
`MR. BAUGHMAN: Thanks very much and good
`afternoon again, Your Honors. May it please the Board. At
`the outset we would like to reserve 15 minutes of our time for
`rebuttal. We would also like to reserve three minutes each for
`rebuttal comments from the Samsung and Google Petitioners
`and they will speak briefly at the end of Apple's opening
`remarks here, Your Honor.
`Again, Apple relies on the petitions and evidence
`we provided in briefing to support our arguments in these
`three trials on the '772 patent. And, again, to assist the Board
`in considering the record we plan to address two groups of
`topics and, of course, any questions the Board may have.
`As with the hearing we just completed, the bulk of
`our opening comments are going to come from my colleague,
`Mr. Batchelder, who will again address ineligibility of the
`challenged claims here of the '772 patent under the Supreme
`Court's mandatory two- step inquiry from Mayo and Alice.
`Again, the second prong of that test, because
`Patent Owner has made no argument that its claims are not
`directed to abstract ideas under the first prong of Mayo and
`Alice, and has never disputed the articulation of those abstract
`ideas, that Mr. Batchelder will address for those claims what
`is left once the elements directed to the abstract ideas are
`properly set aside, as the Supreme Court tells us, does not
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`CBM2015-00031, CBM2015-00032, CBM2015-00033
`Patent 8,336,772
`
`amount to an inventive concept that could render any of the
`challenged claims patentable.
`Before Mr. Batchelder's discussion I will note
`again Patent Owner's persistent arguments regarding
`preemption which, contrary to Patent Owner's arguments, is
`not a "get out of Mayo free card." It is not a separate or
`alternative test for assessing subject matter eligibility under
`Section 101. And the law affirmatively requires application of
`the Supreme Court's two- step Mayo test.
`I would also be happy to address questions the
`Board may have about the construction of payment data or
`other arguments the Patent Owner has raised.
`And turning to slide 2, again, I apologize for being
`repetitive, but being sensitive to the fact that the record is
`different in these cases, I'm just going to note that we have
`material to cover a variety of topics along with an appendix
`with some additional material, if that should come up during
`our hearing today.
`And before passing the podium to talk about prong
`2 with Mr. Batchelder, I would like to offer a collection of
`three points. First, as with the hearing we just concluded, I
`would like the Board to look carefully, if you would, at Patent
`Owner's arguments about the '772 claims.
`They essentially mirror the arguments made about
`the '720 claims we just discussed and the other claims we
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`CBM2015-00031, CBM2015-00032, CBM2015-00033
`Patent 8,336,772
`
`talked about in November. And Smartflash, again, has waived
`anything that is not set forth in its Patent Owner responses,
`anything about whether its claims are directed to abstract
`ideas, anything about the articulation of those abstract ideas.
`And respectfully the precise articulation of
`abstract ideas is not critical to the analysis. It is just a name
`that is being applied. And if you take a look at what the
`Supreme Court did in Alice and the Federal Circuit in
`Ultramercial, it is clear the Board is not required to anguish
`over the precise outer boundaries of abstract ideas.
`In both cases the courts provided and used multiple
`formulations of the abstract idea at issue.
`So in Alice the Supreme Court mentioned both
`intermediated settlement and the use of a third- party to
`mitigate settlement risk and said that we need not labor to
`delimit the precise contours of the abstract ideas category in
`this case. It is enough to recognize that intermediate
`settlement is squarely within the realm of abstract ideas.
`And in Ultramercial the Federal Circuit used three
`articulations of the abstract idea. First, that one can use an
`advertisement as an exchange or currency, page 714. Showing
`an advertisement before delivering free content, also 714.
`And then the abstract concept of offering media content in
`exchange for viewing and advertisement, 715 to 16.
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`CBM2015-00031, CBM2015-00032, CBM2015-00033
`Patent 8,336,772
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`
`So the Supreme Court and the Federal Circuit have
`shown us they are comfortable with multiple formulations, and
`that it's not required to labor about describing the outer
`bounds of an idea.
`The exercise of formulating the abstract idea is
`what the Federal Circuit did in Ultramercial, a high- level
`articulation that in that case covered 11 detailed steps.
`The Federal Circuit said at 715 to 16 the majority
`of those steps comprise --
`JUDGE ELLURU: Counsel, I'm sorry to interrupt
`you. I'm going to ask the people on the phone who are
`listening to this call to please mute your phone.
`Thank you. Sorry for the interruption.
`MR. BAUGHMAN: I apologize. So at 715 to 16
`the Supreme Court talked about how almost all of those steps,
`the majority of them, comprise the abstract idea, the 11
`detailed steps, and the rest was routine.
`Patent Owner hasn't argued that it's not the case,
`the articulation has to call out expressly all of the elements of
`the claim to be the name of the abstract idea. And, again,
`there is no discussion in the Patent Owner's papers about what
`the abstract idea is.
`We will quickly take a look here at Paper 23, the
`Patent Owner's response in the 00031 matter. Again, in 5A,
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`CBM2015-00031, CBM2015-00032, CBM2015-00033
`Patent 8,336,772
`
`conceding there is a two- step test, and then in 5B proceeding
`immediately to the second step.
`Again, as a second point, rather than look at what
`remains from the abstract idea in the claims set aside, Patent
`Owner spends its briefing and most of its demonstratives in
`these trials as well focusing on arguments about preemption
`that don't affect the outcome. The Patent Owner again argues
`DDR, which Mr. Batchelder will discuss, and focuses on
`preemption with three forms listed in the table of contents.
`And, again, as noted on our slide 50, the Supreme
`Court has told us in Mayo that preemption is not the test for
`Section 101 eligibility. Instead the test is the two- step inquiry
`Mayo requires. The Federal Circuit confirmed this in Ariosa
`and the Board told us so in Cambridge Associates, and all
`again cited on slide 50.
`And, again, as we talked about at the end of the
`last argument, on slide 51, Patent Owner's attempt to fashion
`some kind of escape route through DDR to suggest claims are
`affirmatively statutory under Section 101 if they don't preempt
`every application of the claimed idea, the citations are in the
`upper left of slide 51, as completely rejected by DDR itself
`which applied Mayo's two- step test, in the upper right, and by
`Ariosa and OIP which recite it here on slide 51.
`And, finally, the third part we would ask the Board
`to consider again as you listen to today's arguments is what is
`
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`CBM2015-00031, CBM2015-00032, CBM2015-00033
`Patent 8,336,772
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`before Your Honors in these trials? Again, there are at least
`three routes to determining whether what is left is enough to
`provide the inventive concept. The first, employed in many of
`the cases that are before Your Honors, is commonsense.
`Fundamental economic principles like paying for
`content, paying for access, getting more when you pay more,
`those fundamental concepts are known to Your Honors. They
`are cited regularly by the Federal Circuit and Supreme Court
`in deciding the cases and do not add significantly more that
`would lend patentability.
`We also have the law. We have plenty of case law
`examples of specific items that don't transform, that don't
`provide the inventive concept, and then you have specific
`evidence in this case from Petitioner, the expert testimony of
`Mr. Wechselberger confirming that the claims add at most
`nothing more than the routine and conventional material to the
`abstract ideas they're directed to. So they fail the second step
`of Mayo and Alice.
`As Mr. Batchelder will address, that's true as an
`ordered combination. The claims don't transform. And what
`is left is routine and conventional extra solution activity.
`What evidence does Patent Owner offer the Board
`to rely on in performing the second step? Where is their
`expert declaration suggesting there is something here to
`contend with what Mr. Wechselberger says? Nowhere.
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`CBM2015-00031, CBM2015-00032, CBM2015-00033
`Patent 8,336,772
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`And this is not Patent Owner's first rodeo on the
`Smartflash patents. It is not its first time to brief these
`matters. And it's not the first time we've pointed out their
`failure of evidence. So although Patent Owner has offered
`expert testimony in other proceedings on these related patents,
`it has completely failed to do so on Section 101. We have
`only their attorney argument, and on the Petitioner's side
`evidence.
`
`So when you are weighing the evidence before
`Your Honors, you will have before you not only commonsense
`and the law, but evidence, the testimony of Mr. Wechselberger
`citing to actual prior art examples and, on the other hand,
`nothing.
`
`And as the Federal Circuit told us in Versata, this
`is 793 F.3d at 1344, expert testimony credited in determining
`facts underlying the Section 101 analysis can be dispositive.
`Respectfully, that's the case here and the record is undisputed.
`With that I will pass the podium to my colleague,
`Mr. Batchelder.
`JUDGE ELLURU: Thank you.
`MR. BATCHELDER: May it please the Board.
`James Batchelder for Apple. If I could turn to slide 9, please,
`in Petitioner's deck. We have a familiar set of eight bullet
`points here. The same analysis applies to these challenged
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`CBM2015-00031, CBM2015-00032, CBM2015-00033
`Patent 8,336,772
`
`claims as in the earlier hearing. These same eight points apply
`with equal force.
`The first, Petitioner's expert testimony is
`unrebutted. Point 2, about the length of the claims. Point 3,
`the features alleged by Patent Owner to be inventive were
`known. That discussion starts on slide 14.
`Every claimed hardware component was known.
`That starts on slide 18. Every claimed function was known.
`That starts on slide 20. The ordered combination points starts
`on slide 40. The challenged claims are comparable to Alice
`and Ultramercial. That starts on slide 43. And distinguishing
`DDR starts at slide 45.
`In the interest of time and to focus in particular on
`the issues that I think are going to matter most to the Board,
`with your permission I would like to jump to slide 18, which
`starts with the hardware components. I want to talk about
`those and the functions and then get right to the claim
`language itself.
`So here we have the hardware components. We
`have the same admission from the specification that the
`hardware here is not inventive. And, of course, when you look
`at the list of the hardware that appears in the claims, again,
`this is just the stuff of general purpose computers, general
`purpose networks. These things had existed for decades.
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`CBM2015-00031, CBM2015-00032, CBM2015-00033
`Patent 8,336,772
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`And then slide 19, those things, again, like a
`pepper shaker, are just sprinkled throughout the claims, the
`same generic components again and again and again.
`Slide 20, same is true of the functions. Again,
`these are the things that general purpose computers and
`networks have always done. These are the verbs they have
`always performed. And slide 21, again, with the pepper
`shaker, they are just sprinkled throughout the claims, these
`basic, fundamental, generic tasks.
`So now turning to claim 25 itself, which is on slide
`24. And, first of all, let me just say again this is a long claim.
`There are 35 lines worth of claim on this page. The Board's
`articulation of the abstract idea was restricting access to
`stored data based on supplier-defined access rules and
`validation payments.
`That's a relatively small number of words, and yet
`35 lines later the claim ends with a lot of detail here. There's
`a lot of length. But coming back to the analogy about --
`JUDGE ELLURU: Counsel, what is your response
`to Patent Owner's argument that the inventive concept here is
`storing the content and the use rules in one place?
`MR. BATCHELDER: Same as in the last hearing,
`Your Honor. That is all over the prior art, the idea of storing
`rules and content together. Mr. Wechselberger explained that
`and he cited plenty of prior art to that effect.
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`So, again, storing content and rules together Mr.
`Wechselberger explained was in the Kopp reference. That is
`paragraph -- or column 5, lines 16 through 30. It is in the
`Ahmad reference at column 12, lines 20 through 24. And it is
`in the Poggio reference, columns 10, lines 24 through 30.
`And, again, this is the stuff that general purpose
`computers and networks have always done, is the ability to
`store different kinds of data together. There's nothing special
`about these kinds of data that would defy doing that.
`And here it was done in the prior art. And Mr.
`Wechselberger opined that it would have been known to one of
`ordinary skill in the art. And as we mentioned before, the
`Alice case and the Intellectual Ventures case both talked about
`storing different kinds of data together, and they certainly
`were done.
`And the same is true in Accenture. They talked
`about the various kinds of insurance files that are all stored
`together in a transactional database. So the idea of storing
`different kinds of data together, including these kinds of data
`together, would have been known to one of ordinary skill in
`the art and was, in fact, done in the prior art, as Mr.
`Wechselberger established.
`Coming back to the claim itself, Your Honor, slide
`24, Mr. Baughman used the analogy of describing getting
`dressed. You could say I got dressed this morning, or you
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`Patent 8,336,772
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`could describe that in excruciating detail about going to the
`second drawer from the bottom, opening it with your left hand,
`pulling out a pair of socks, pulling those socks apart, bending
`your knees so that you can put on the left sock, right sock, et
`cetera. I won't go on. But you understand, of course, the idea
`that you can describe in excruciating detail any process.
`That's what this claim does.
`And so what we've done is broken it into chunks on
`slide 24 with basically the colored boxes. So the green chunk
`on the top is basically a description of the generic hardware of
`the claim. The red chunk is the data request of the claim. The
`purple chunk is the payment section of the claim. And then
`the blue chunk is, once you have asked for the data and you
`have paid for it, you get it. That's the data access portion.
`But each of these just in excruciating detail just
`describes those very basic ideas that have been present in
`commerce forever and certainly were present in the e- vending
`prior art well before the priority date here.
`And, again, the length of the claim here, we have
`35 lines. The OIP case had a claim with 70 lines. The GT
`Nexus District Court case had 105 lines. So length does not
`make for patent eligibility. Again, Ultramercial, Alice, those
`are also long claims.
`So with the court's permission, what I would like
`to do now is just step through some slides that break out these
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`CBM2015-00031, CBM2015-00032, CBM2015-00033
`Patent 8,336,772
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`colored boxes and show you what they contain and just
`demonstrate that there is nothing inventive here when you
`move past the abstract idea.
`So slide 25 takes that green box, which was the
`generic hardware box, and indeed you will see what I've done
`here. I should just say that what I've done in gray is just,
`rather than repeating words that have already been color
`coded, we just colored them gray to show any new words, but
`you will see the generic computer components that are listed
`here, interface, memory, program store, processor, code, et
`cetera, nothing new here, all known in the art.
`Mr. Wechselberger explains all that but, of course,
`you know that based on your own knowledge of computers.
`And the specification then disclaims the idea that there is
`anything novel here.
`On slide 26, the Alice case, the SmartGene case,
`they say the same things. These are the kinds of general
`purpose computer parts that don't bestow patent eligibility
`because there is nothing novel about them.
`Turning to slide 27, this is the red box. This is the
`generic data request box. And a lot of words in this box but it
`essentially just describes getting some information about a
`product for sale, looking at that information, and choosing a
`product based on it. That has been done in commerce for as
`long as commerce has existed.
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`So, for example, we have color highlighted the
`word request at the top: Code to request identifier data
`identifying one or more items of content. And you can receive
`the identifier data. Then you can request content information.
`And the content information would be satisfied, for example,
`by cost data, here is what it costs.
`Then you receive the content information. Then
`the content information is presented and then you receive a
`first user selection.
`So there is a description of the product, how much
`does it cost, the user says I want that, and then the user selects
`it. That's a lot of words to describe stuff that has been in
`commerce forever. There is nothing remotely inventive about
`it. And Mr. Wechselberger says so, but you don't need him.
`Slide 28, again, is belt and suspenders. Mr.
`Wechselberger doesn't just say so; he points to prior art that
`demonstrates this.
`And he points in slide 28 to the Stefik reference
`which disclosed in the upper right a hierarchical file system
`with directories and subdirectories, and then at the bottom
`disclosed searches for the document through the hierarchical
`directory structure of the repository. This idea that there is a
`user interface that can be searched for content based on
`description is as old as time.
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`Slide 29, the same is true in Poggio, had a user
`interface with the product information for the electronic data
`which details operational requirements for the product, and the
`fees.
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`And then at the bottom, the user selects the
`perform category search menu button, and index search engine
`126 will receive the user's search criteria and perform the
`search. It's no surprise that these were implemented in
`electronic vending systems in the prior art time period because
`this is the basic stuff of commerce.
`Slide 30, the same is true of the Subler prior art
`reference. I'm not going to walk through the details of that
`but it is the same stuff. Slide 31, the same is true. Alice
`describes these things by saying these are generic functions.
`That takes us to 32. This is the payment box, and,
`again, a lot of words, just describing in excruciating detail the
`notion of conferring payment.
`So at the top you have a first user selection and
`then there is the transmit thing that is highlighted. That is
`transmitting payment data. Then you receive payment
`validation data. So the payment is made. You validate that
`you get it. And then responsive to the payment validation
`there is content that is retrieved. And then at the bottom the
`user can do it again.
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`CBM2015-00031, CBM2015-00032, CBM2015-00033
`Patent 8,336,772
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`
`So there is a selection. There is payment. Yep,
`the payment is validated. Here comes the content. That is as
`old as commerce. Nothing inventive here. Mr. Wechselberger
`says so in his expert report on the right.
`And he also points out prior art again as belt and
`suspenders. You don't need it here because it comports with
`your basic knowledge of commerce, but it is here in spades.
`Slide 33 is Poggio. This describes the user adding
`a credit card number to the invoice which is sent and
`encrypted, and then the digital cash interface reformats the
`invoice into the appropriate format for transmittal to the
`electronic banking network, which processes the transaction.
`And does it get validated? Yes, it does. That's in
`green. A digital cash interface awaits for an indication from
`the electronic banking network signifying successful
`completion of the payment transaction, and format the
`purchased product for transmission to the user once the
`validation happens.
`So, again, Mr. Wechselberger testified in
`unrebutted testimony this would have been known to one of
`ordinary skill, it is a fundamental principle of commerce, but
`he went above and beyond and showed it was there in the prior
`art and is no surprise.
`The courts have said the same thing. Slide 34,
`Alice, adjusts shadow records as transactions are entered. In
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`Ultramercial there was payment received. In SAP it was
`performing a real-time web transaction, including transferring
`funds in response to signals. These are all in the cases and,
`again, all recognized to be non- inventive and no surprise.
`And then the data is requested, the data is paid for
`and validated. What happens next in this claim, slide 35, is
`they get the data. This is the data access step after the request
`and the payment. Again, a lot of words here but it is just
`describing in excruciating detail the idea of accessing data.
`So at the top it is receiving a user selection and
`then code to read use status data and use rules. We have seen
`that in the art from Ultramercial, among others. Then you
`evaluate that to determine whether access is permitted. That
`was done in Ultramercial.
`There is a first user selection. There is a second
`user selection. And then you get the data at the bottom.
`That's where the access shows up.
`Mr. Wechselberger explains that this had always
`been done. This was known in the art. Nothing new about it.
`And you don't need him to point to prior art, but he does so
`again in spades showing that all of this happened.
`Slide 36, he points to the Ahmad reference to show
`use status data and use rules, that's in yellow, reading the
`elapsed time of use recorded by the timer, reading the total
`number of uses recorded by the counter, comparing the total
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`number of uses with the licensed number of uses. You have
`use status data. You have rules. And then you have
`evaluating the use status data and rules to determine whether
`access is permitted. That's in red and that's shown in the
`Ahmad reference, too, in red at the bottom.
`The software monitor, SM 140, checks its database
`to determine whether usage time remains for the rented
`program module. If no usage time remains, it goes to the no
`branch, and then also in red. If at step 650 usage time does
`remain, the method follows the yes branch, et cetera, et cetera.
`Use status data rules, validation, it is all here.
`Also true on slide 37, in Kopp, you have use status
`data and rules in yellow. It checks the recorded data in the
`record regarding the extent of utilization in the data record.
`And then in red, if the validation of the extent of utilization of
`data record has been exceeded, it does not permit the data
`record to be read. And the rule is enforced accordingly.
`And the courts have said the same thing. Applying
`rules to data is not new. 38, slide 38, this is the Accenture
`case again. This was generalized software components for
`generating tasks based on rules to be completed upon the
`occurrence of an event. Not a novel idea, stuff that is done by
`computers all of the time, not inventive, not patent eligible.
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`Slide 39, again, lest Patent Owner argue that there
`was something inventive about the way that payment was
`made, they have disclaimed any such thing on slide 39.
`Slide 40, Mr. Wechselberger's unrebutted
`testimony about all of this. The first three quotes are about
`the generic features of the claims. They are all well known in
`the art. Their combination as claimed was at a minimum
`obvious.
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`And then in his deposition examples of elemental
`meaningless claim requirements. He says at the bottom that
`they are either inherent or something that one of ordinary skill
`in the art would just know because, again, this was the stuff of
`general purpose computers and networks forever.
`Slide 41, again, the basic cases that lay out some
`of these very kinds of claim limitations as being well known
`and non- inventive, from Ultramercial to Alice to Accenture to
`SAP, I don't want to repeat myself here, but I just do want to
`say, for Accenture, I just want to read one quote describing the
`system there.
`This is from page 1339 of the Federal Circuit
`opinion: "In response to the event trigger, the task engine
`identifies rules in the task library database associated with the
`event and applies the information to the identified rules to
`determine the task to be completed."
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`CBM2015-00031, CBM2015-00032, CBM2015-00033
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`Very specific stuff, application of rules to do
`something very specific, and in particular not inventive, and
`so that was not enough to confer eligibility.
`Coming back to Ultramercial, we've talked about
`just how --
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