Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 1 of 63
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE WESTERN DISTRICT OF TEXAS
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`WACO DIVISION
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`MULTIMEDIA CONTENT MANAGEMENT, LLC
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`* *
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`VS.
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`DISH NETWORK CORPORATION
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`* CIVIL ACTION NO. W-18-CV-207
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`*
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`November 28, 2018
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`BEFORE THE HONORABLE ALAN D ALBRIGHT, JUDGE PRESIDING
`MOTION HEARING
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`APPEARANCES:
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`For the Plaintiff:
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`John Marcus Bustamante, Esq.
`J. Scott Denko, Esq.
`Denko & Bustamante LLP
`114 W. 7th Street, Suite 1100
`Austin, TX 78701
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`Jeffrey G. Toler
`Toler Law Group, PC
`8500 Bluffstone Cove, Suite A201
`Austin, TX 78759
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`Kurt Pankratz, Esq.
`Thomas Carter, Esq.
`G. Hopkins Guy, III, Esq.
`Baker Botts, L.L.P.
`2001 Ross Avenue, Suite 900
`Dallas, TX 75201-2980
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`John Palmer, Esq.
`Naman, Howell, Smith & Lee
`400 Austin Avenue, Suite 800
`Waco, Texas 76701
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`Kristie M. Davis
`United States District Court
`PO Box 20994
`Waco, Texas 76702-0994
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`For the Defendant:
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`Court Reporter:
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`Proceedings recorded by mechanical stenography, transcript
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`produced by computer-aided transcription.
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`EXHIBIT 2011
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`
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`1
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE WESTERN DISTRICT OF TEXAS
`
`WACO DIVISION
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`MULTIMEDIA CONTENT MANAGEMENT, LLC
`
`* *
`
`VS.
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`DISH NETWORK CORPORATION
`
`* CIVIL ACTION NO. W-18-CV-207
`*
`*
`
`November 28, 2018
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT, JUDGE PRESIDING
`MOTION HEARING
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`APPEARANCES:
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`1 2 3 4 5 6 7 8 9
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`10
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`For the Plaintiff:
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`John Marcus Bustamante, Esq.
`J. Scott Denko, Esq.
`Denko & Bustamante LLP
`114 W. 7th Street, Suite 1100
`Austin, TX 78701
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`Jeffrey G. Toler
`Toler Law Group, PC
`8500 Bluffstone Cove, Suite A201
`Austin, TX 78759
`
`Kurt Pankratz, Esq.
`Thomas Carter, Esq.
`G. Hopkins Guy, III, Esq.
`Baker Botts, L.L.P.
`2001 Ross Avenue, Suite 900
`Dallas, TX 75201-2980
`
`John Palmer, Esq.
`Naman, Howell, Smith & Lee
`400 Austin Avenue, Suite 800
`Waco, Texas 76701
`
`Kristie M. Davis
`United States District Court
`PO Box 20994
`Waco, Texas 76702-0994
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`For the Defendant:
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`Court Reporter:
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`Proceedings recorded by mechanical stenography, transcript
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`produced by computer-aided transcription.
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`EXHIBIT 2011
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 2 of 63
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`(November 28, 2018, 2:53 p.m.)
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`DEPUTY CLERK: Civil proceeding on hearing on motion to
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`dismiss in Civil Action W-18-CV-207, styled Multimedia Content
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`Management, LLC vs. Dish Network Corporation.
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`THE COURT: Mr. Denko?
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`MR. DENKO: Yes, sir.
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`THE COURT: Would you like to introduce yourself for the
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`record?
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`MR. DENKO: Scott Denko for the plaintiff Multimedia
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`Content Management, LLC.
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`THE COURT: I recognize Mr. Bustamante, but I don't know
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`who the gentleman in the middle is.
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`MR. TOLER: Jeff Toler for the plaintiff.
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`THE COURT: Mr. Toler, I think we've met too, but I...
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`MR. TOLER: We have, Your Honor.
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`MR. PANKRATZ: Your Honor, Kurt Pankratz with Baker Botts
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`on behalf of the defendant Dish Network.
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`THE COURT: Okay.
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`MR. PANKRATZ: I'm joined today with my colleagues Hopkins
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`Guy, Tom Carter and John Palmer. We're also joined today by
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`in-house counsel from Dish Lawrence Katzin and James Hanft.
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`THE COURT: Well, thank you so much for coming to Waco. I
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`really appreciate -- I love it when the clients attend these
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`hearings. I actually know a little more about this than I did
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`about the IDEA case I just had. So -- and there are binders so
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 3 of 63
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`I recognize this as a patent case. I know walking in what I'm
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`going to deal with.
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`So counsel for Dish, it's your motion and I will hear from
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`you guys. Just so you know, I have reviewed everything that
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`you submitted. I've actually got a fair number of questions to
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`ask. You may wind up answering them as you go through, but I
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`just wanted you to know that I have -- I have looked at
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`everything and I am -- I had another 101 hearing a week or two
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`ago, maybe two weeks ago. So I'm a little bit current on what
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`the -- the more recent cases are, but don't let that dissuade
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`you from, you know, hitting on whatever you want to.
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`MR. PANKRATZ: Thank you, Your Honor. Again, Kurt
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`Pankratz on behalf of the defendant Dish. And I heard about
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`the match.com hearing. So I was aware that you were -- you are
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`well aware of the current state of the 101 case law and I will
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`not go too deep into any of it, but I would like to start, Your
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`Honor, by focusing what this analysis is on which is based on
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`the Supreme Court telling us in Alice that the focus is on the
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`claims. And within the slide deck I'm going to -- I'll
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`reference you to certain pages. I'm probably going to jump
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`around a little bit so not necessarily go in exact order
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`necessarily nor hit all the slides, but I'll try and reference
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`by slide number if I'm ever referring to a particular one.
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`At Slide No. 4, a couple of quotes from the Alice case
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`because we think it's really important to reorient ourselves
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 4 of 63
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`and think about what is the fundamental question or what are
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`the fundamental questions that we're asking ourselves and what
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`do we need to look at to answer them? In Alice the Supreme
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`Court tells us that there are the two steps and they're both
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`focused on the claims themselves. At Step 1, first determine
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`whether the claims at issue are directed to patent ineligible
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`concepts, and then at the second step, if so, what else is in
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`the claims before us? So it is a focus on the claims, not on
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`what could have been in the claims, what could have been
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`included based on descriptions in the specification but on the
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`claims themselves.
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`THE COURT: And let me interrupt you to say you did a
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`really good job of making that point in your briefs and I would
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`encourage Mr. Denko or Mr. Bustamante or whoever it is that
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`argues, and I'm not sure who will, but I would look forward to
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`hearing from the plaintiff references to what is in the claims
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`that defeat your argument that there's nothing there. I mean,
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`you made that point pretty well and I look forward to hearing
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`from them a fairly specific response to that.
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`MR. PANKRATZ: Perfect, Your Honor. Thank you.
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`I will note that at Slide 6 we've got just a clean copy of
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`Claim 23 if at any point we need to jump to that slide and
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`reference the claim with no annotations or at least no
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`annotations yet on this slide.
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`THE COURT: And while you're doing this, you actually
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 5 of 63
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`anticipated my next question. You might address -- I know I'm
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`going to hear from them why we just don't look at Claim 23 and
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`it's not enough. There are a zillion claims, blah, blah, blah,
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`blah. And so if you want to take that on now, I'll hear from
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`them when they're up, but why -- why -- you might want to put
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`on the record why my analysis of Claim 23 is sufficient to
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`resolve the question of whether Alice applies to all of the
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`claims.
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`MR. PANKRATZ: I'd be happy to take that question right
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`now if you'd prefer.
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`THE COURT: Sure.
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`MR. PANKRATZ: I think -- and I'm not even sure there is a
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`dispute as to whether Claim 23 is representative at least with
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`respect to the independent claims. Now, our brief focused on
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`Claim 23. Their brief pivoted and focused on Claim 1 from the
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`same patent and I think I can address for you right now why we
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`think that those two claims are equivalent. I don't even know
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`if this is a dispute. It may be helpful to hear straight from
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`them. Do they think that the four independent claims rise and
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`fall together? I don't know if they agree. It seems they
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`might from the briefing, but I'm not sure. But I can certainly
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`address that.
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`Page 30 of the slide deck, Your Honor -- and I think
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`you're probably aware we've got two patents in suit here.
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`THE COURT: Sure.
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`EXHIBIT 2011
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 6 of 63
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`MR. PANKRATZ: We've got four independent claims between
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`them. In each patent there is one system and one method claim.
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`THE COURT: Okay.
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`MR. PANKRATZ: So what I'll do first is show you that the
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`two method claims line up and then I'll show you where the
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`applicant themselves said the system and method claims are the
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`same thing.
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`THE COURT: Okay.
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`MR. PANKRATZ: So first at Slide 30 you can see exactly
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`here. It's a comparison of the independent method claims from
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`the two patents in suit. On the left is Claim 23 from the '468
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`and on the right is Claim 29 from the '925 patent, and we've
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`highlighted in red the differences. There's just a few.
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`Claim 23, which we addressed in our briefing, has a little
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`more substance and requirement to it. In Claim 23 it requires
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`gateway units as opposed to the even broader network elements
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`claim in the '925 patent. You can see the Claim 23 of the '468
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`patent requires that the content request be user entered
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`whereas Claim 29 takes that out.
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`THE COURT: And just to shortcut this, your position would
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`be that if you persuade me that 23 is insufficient under Alice,
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`then I'm going to knock out 29 because 23 is, for lack of a
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`better word, better than 29 is.
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`MR. PANKRATZ: You read my mind, Your Honor. That's
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`exactly. If something can be even more invalid under Alice,
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 7 of 63
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`yes. Claim 29 would be.
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`THE COURT: Okay.
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`MR. PANKRATZ: Now, the system to method claims, the next
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`slide, Slide 31, this is from the prosecution of the '468
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`patent. The patentee was facing an election restriction
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`requirement, which I think Your Honor may be familiar with,
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`where the patent office tells you you've got two different
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`kinds of claims in your patent. You need to pick one.
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`THE COURT: Right.
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`MR. PANKRATZ: And the patentee came back and said, no. I
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`don't. I've only got one kind of claim. All the claims are
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`focused on the exact same thing and they go in and they
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`actually chart it, but we've put the little dots to take out
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`all their analysis, but the summary they give is in that second
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`paragraph. Independent Claims 1 and 116 correspond to each
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`other exactly, except the former is recited in system form and
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`the latter in method form.
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`THE COURT: So if you knock out 1, you knock out 116?
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`MR. PANKRATZ: That's right. And 116, if you turn to the
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`next page, Page 32, you'll see that Claim 116, the method
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`claim, during prosecution became Claim 23 in the final issued
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`patent.
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`THE COURT: I got it.
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`MR. PANKRATZ: And so, Your Honor, again I don't know that
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`they contest this, but I think the record is clear if you knock
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 8 of 63
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`out Claim 23 under Alice, all four independent claims fall.
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`THE COURT: Got it.
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`MR. PANKRATZ: Now, as to the dependent claims, Your
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`Honor, we have provided analysis in our briefing. I think we
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`have hit on the different elements of those and we've raised
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`why -- first off we feel like they're all addressing the same
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`fundamental concept which is controlling access to content, and
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`in each of the dependent claims they're merely adding extra
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`steps. It's -- you know, if you want to think about
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`controlling access at a library and you have to have a library
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`card, some of the dependent claims could be, you know, put a
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`lock on the front door or add an extra librarian. It's things
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`that don't add any unconventional steps. And we can address
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`that in more detail if you have questions, but fundamentally we
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`think we've raised why those are all targeted at the same
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`fundamental concept and why none of them add unconventional
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`aspects sufficient to survive at Step 2.
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`And under the Affinity Labs vs. DirecTV case at 1256, Note
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`1, there is a point made by the Federal Circuit that Affinity
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`didn't separately argue patentability of its other claims, and
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`in light of that and Affinity's failure to present any
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`meaningful argument for the distinctive significance of any
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`claim limitations other than those included in Claim 1, we
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`treated -- we the Federal Circuit treated Claim 1 as
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`representative, and we would contend that MCM has not, and
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`EXHIBIT 2011
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 9 of 63
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`we'll go into greater detail on this with respect to especially
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`the independent claims, but they have not identified any
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`specific elements and said here's an unconventional one.
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`Here's something that no one knew before that's not well-known.
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`Instead, Your Honor, it's our contention that the dependent
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`claims are just adding well-known computer aspects.
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`THE COURT: And the reason you say that really they
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`haven't claimed anything more than controlling access to the
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`service -- to the network is because basically you're looking
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`at the first part of independent claims and then you're saying
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`really the only thing that they add is a controller note or
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`some form of controlling but even then they don't -- they don't
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`do anything, you know, beyond that, beyond the abstract concept
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`of controlling access.
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`MR. PANKRATZ: Correct, Your Honor.
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`THE COURT: Okay.
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`MR. PANKRATZ: And really there's a couple of things to
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`jump back and answer that question in particular. I think one
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`is looking at a statement that the patentee made during
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`prosecution where -- we're fortunate here, right? Alice came
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`out and they said the Supreme Court told us you need to figure
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`out what are these claims directed to. You have to do that.
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`We're trying to help you out.
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`We have the wonderful benefit here where the patentee back
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`before Alice even issued before this lawsuit was filed, filed
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 10 of 63
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`something with the patent office to say, here's what I think
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`the claims are directed to. So we can see that if you go
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`straight to Slide No. 6 -- I'm sorry -- Slide No. 8 -- my
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`eyesight is not as good as it used to be -- in that same action
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`when the patentee was facing election restriction, they
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`characterized exactly what they believed the claims were
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`directed to and they say it right there: Both sets of claims
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`are directed towards, quote, "regulating access to a service
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`provider network," end quote.
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`THE COURT: Well, how -- how controlling is this language
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`in my determination of whether or not 101 applies or not?
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`MR. PANKRATZ: I don't view it as an admission that they
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`can't ever change or definitive for all time. I view it as
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`really persuasive evidence of what the patentee viewed their
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`claims to be directed to because it's --
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`THE COURT: Well, I don't think they dispute -- I don't
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`think they're going to get up here and dispute that what the
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`patents generally are related to are regulating access to a
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`service provider network. I mean, I think that's pretty close
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`to the title of the patent.
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`MR. PANKRATZ: It is.
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`THE COURT: And so I'm not sure -- I'm not sure how far
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`this gets you in terms of saying -- I don't think there's any
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`fight over this. I mean, your fight is that they don't do
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`more, but I don't think they fight that this is what the claims
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 11 of 63
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`are aimed towards.
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`MR. PANKRATZ: It's a -- right. I would -- I would agree
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`with that and I think they would agree that at least this is a
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`statement of part of what the claims are directed towards.
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`Maybe there's more. And I certainly do want to address what
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`they say more there is.
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`THE COURT: Okay.
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`MR. PANKRATZ: And I'm happy to jump to that, but first
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`I'd like to, if Your Honor's okay with that, point to the claim
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`language itself and tell you why we think --
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`THE COURT: No. I would like that. Yes.
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`MR. PANKRATZ: So Slide 10, Your Honor, is an annotated
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`version of Claim 23, and what we've done here is simply
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`provided some underlining and bolding and we've used two
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`different colors to indicate what we view as kind of two
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`different aspects present in these claims. So we've got six
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`steps. And fundamentally this boils down to you generate
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`instructions and then you apply them. You apply them to
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`control access to content. So we've highlighted in yellow
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`Steps A, B and D which are the steps of generating
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`instructions, transmitting instructions and then receiving
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`instructions. I think it'd be hard -- you'd be hard pressed to
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`argue that those aren't just generic computer steps taking
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`place.
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`And then on the gateway side you receive user entered
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`content requests. You selectively transmit those content
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`requests in accordance with the controller instructions and you
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`transfer content data responsive to that.
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`I really would contend, and I don't know that the other
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`side might agree to this based on their briefing, but Steps A,
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`B, C, D and F, basically everything except E, appears to me to
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`be almost unambiguously a generic computer step. And the
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`reason I say that I'm not sure the other side will disagree
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`with me is because when the other side is addressing what this
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`claim is directed to, Your Honor, they provided a table in
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`their brief and the only element they focused on is Element E.
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`THE COURT: Well, and this should frighten you, everyone,
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`just not you you, but this is more broad that actually when I
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`read through this that was what I was thinking when I read the
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`patent. I was thinking E was the step that they would be
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`focusing on as well.
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`MR. PANKRATZ: And you nailed it. That's what we're all
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`looking at and it simply says selectively transmitting by the
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`plurality of gateway units the content request to the service
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`provider network in accordance with the controller
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`instructions. Selectively transmitting requests in accordance
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`with instructions. If that's your formulation of what this
`
`23
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`claim is directed to, that might be even more broad and more
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`abstract than controlling access to content. These claims are
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`really written in very, very broad strokes. And, Your Honor, I
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`EXHIBIT 2011
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 13 of 63
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`would suggest that perhaps the top case, if you were to ask me
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`what do I think is the most analogous case, perhaps the Prism
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`Technologies case that we've cited, and we have that cited on
`
`Slide 11 or at least a portion of it right there, where the
`
`Federal Circuit on appeal --
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`THE COURT: Yeah.
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`MR. PANKRATZ: -- faced with the question. So...
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`THE COURT: And when you cited that, I went and read that.
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`MR. PANKRATZ: Okay. Thank you.
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`1 2 3 4 5 6 7 8 9
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`I would also commend Your Honor's attention to the
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`11
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`Affinity Labs vs. Amazon case. That's on Slide 12. The
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`12
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`concept of delivering user selected media content to portable
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`devices is an abstract idea. I think the Federal Circuit has
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`14
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`been clear that broad generic language about controlling access
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`15
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`to content or controlling access to resources, user selected
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`16
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`content being delivered, those are abstract ideas. There is no
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`specific technical improvement to the computer or computer
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`network itself recited in these claims.
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`THE COURT: What about the language in accordance with the
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`controller instructions?
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`MR. PANKRATZ: Well, Your Honor, even I would say
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`instructions is in the computer sense perhaps the most generic
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`thing that you can possibly ask for. Every computer since the
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`dawn of computers has operated in accordance with instructions.
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`The controller instructions could be as broad as, send every
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`EXHIBIT 2011
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 14 of 63
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`request or send two of every request or send half of the
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`requests. We don't know. We have no idea what those
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`controller instructions require. They are everything. They
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`cover everything, and if we want proof that the other side
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`believes that, they've proposed a construction for controller
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`instructions that simply says they're computer executable
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`instructions. And if you'd like to reference their
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`construction, we have those. I don't know if you want to jump
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`to that or not.
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`1 2 3 4 5 6 7 8 9
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`THE COURT: Y'all included some of those in the briefing
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`and I saw --
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`MR. PANKRATZ: The plaintiff did.
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`THE COURT: Yeah. I saw a bunch of those.
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`MR. PANKRATZ: Okay. And, Your Honor, fundamentally, you
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`know, this claim is so broad that it -- it covers a concept as
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`broad as a library with library cards. You go in. You try to
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`check out a book and the librarian scans your card there at the
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`desk and she knows based on, you know, maybe you've got five
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`books outstanding, she says, the instructions tell me you don't
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`20
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`get that book. Sorry. Now she's controlling access to content
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`based on instructions, and maybe it's even over a computer
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`22
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`system's library setup, but this is -- in our view it's hard to
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`23
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`get more generic, more abstract and more broad in coverage than
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`24
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`just selectively transmitting requests in accordance with
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`25
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`instructions. And there is no -- no specific technical
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`EXHIBIT 2011
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 15 of 63
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`15
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`improvement that would save these claims at Step 1. There is
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`no structure. There's nothing like the specific tabbed
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`notebook structure in Data Engines that saved the Corel patent
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`of, you know, jumping between spreadsheet pages. There's
`
`nothing like a specific technical structure that's stored in
`
`the BIOS of a computer that I believe was -- I think that might
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`have been the Ancora case. There are all these cases and when
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`they find a claim eligible at Step 1, they really find a
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`specific technical structure that improves the computer or the
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`1 2 3 4 5 6 7 8 9
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`10
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`computer's user interface itself. Something as broad as, apply
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`11
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`instructions to selectively transmit request. Your Honor, we
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`12
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`just think that's too broad, that that is, according to Prism
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`13
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`and Affinity Labs and other cases, an abstract concept.
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`14
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`And unless Your Honor has more questions on Step 1, I'll
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`15
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`gladly move to Step 2.
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`THE COURT: Sure.
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`MR. PANKRATZ: So at Step 2 -- and this section begins at
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`18
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`Page 21 of the slide deck that I handed up, Your Honor, as I'm
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`19
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`sure you're aware the question here under Alice is what beyond
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`20
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`the abstract idea is in the claims? Is there an inventive
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`21
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`concept? Or put another way based on the cases that have come
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`22
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`out, is any element in the claim that we're looking at more
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`23
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`than just a conventional routine well-known computer element?
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`24
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`Is it something other than just generic computer steps or is
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`25
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`the ordered combination of elements satisfying that? And again
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`EXHIBIT 2011
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 16 of 63
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`the focus is on the claim language which I'd like to do first
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`and then I will take on MCM's rebuttal points briefly as well.
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`But turning to the claim itself, if you could turn to Page
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`22, we've got here Claim 23 again, this time annotated, in an
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`attempt to show with the colors and the bolding and underlining
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`what we view as being the generic computer functions in red and
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`the generic computer elements in black. It's hard -- I believe
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`the other side would be hard pressed to say that steps such as
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`generating, transmitting, receiving, transferring are anything
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`1 2 3 4 5 6 7 8 9
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`10
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`but well-known, routine computer activities and I would say to
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`11
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`Your Honor that there are cases saying exactly that. For
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`12
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`example Ultramercial v. Hulu, the transfer of content between
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`13
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`computers is merely what the computers do. Or En re: TLI
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`14
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`Communications, storing, receiving and extracting data that
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`15
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`were addressed there, those were just generic computer steps.
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`16
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`And as for the elements, here I think Prism is a good case
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`17
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`to look at as well. In Prism, again, the claim there, Your
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`18
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`Honor, I would say had even more detail and more specificity
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`19
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`than the independent claims here. And it's a very short
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`20
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`opinion. Nice easy one, a great one for us because it's short
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`21
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`and to the point. But in the Prism case the Federal Circuit
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`22
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`made clear that the asserted claims -- and this is at 1017 in
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`23
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`the Prism Technologies case. The Federal Circuit made clear
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`24
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`that the asserted claims merely recite a host of elements that
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`25
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`are indisputably generic computer components. And it cites to
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`EXHIBIT 2011
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 17 of 63
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`an authentication server, an access server, internet protocol
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`network, client computer device database. This type of generic
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`computer element can't save these claims. These are not
`
`unconventional elements. These are quite the contrary.
`
`They're broad generic elements. And I think this claim really
`
`does raise the specter that the Supreme Court has flagged which
`
`is, is this claim so broad that it would preempt virtually any
`
`method of applying instructions to control access to content?
`
`Well, that's what the claim purports to be is applying
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`1 2 3 4 5 6 7 8 9
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`10
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`instructions to control access to content with no technical
`
`11
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`specificity and we believe it does definitely run afoul of that
`
`12
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`concern.
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`13
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`Now, in rebuttal, MCM could make your job easier by
`
`14
`
`saying, Your Honor, nope. Let me point you to an element that
`
`15
`
`is unconventional, right? Here's a factual dispute because
`
`16
`
`this is an unconventional element. They could have done that
`
`17
`
`in their complaint. They would have had to do so not just by
`
`18
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`legal argument, right? They couldn't just say, this element is
`
`19
`
`unconventional. They would have to actually have some basis in
`
`20
`
`the specification or somewhere else to say that, but they
`
`21
`
`didn't even take that step. They have not identified, as far
`
`22
`
`as we can tell, a single element that they claim to be
`
`23
`
`unconventional nor have they taken the position, as we've seen
`
`24
`
`it, that the ordered combination is somehow unconventional, and
`
`25
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`I think that would -- you'd be hard pressed to say that the
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`EXHIBIT 2011
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 18 of 63
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`18
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`ordering of steps is somehow unconventional. I think we all
`
`know that if you want to tell a computer what to do, you do
`
`that first and then it follows your instructions later. So
`
`providing instructions and then following them -- I guess that
`
`even goes for my kids and for me and everybody, right? We have
`
`to hear the instructions first before we apply them.
`
`THE COURT: Not my kids.
`
`(Laughter)
`
`THE COURT: You have better kids than I do.
`
`MR. PANKRATZ: Maybe mine are too young to know.
`
`THE COURT: Wait until they're driving.
`
`(Laughter)
`
`THE COURT: In fact I'll -- I haven't met your kids. I'll
`
`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`13
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`14
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`trade -- I'll take two of yours if you'll take either of mine.
`
`15
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`16
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`(Laughter)
`
`MR. PANKRATZ: It depends on the day whether I'll make
`
`17
`
`that trade, Your Honor.
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`18
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`Your Honor, MCM, they had the opportunity and they had the
`
`19
`
`opportunity in their brief to point to you and show you why
`
`20
`
`their claims were not well-known, routine or conventional, and
`
`21
`
`they purported to do that at Page 13 in their brief Section B,
`
`22
`
`and if you turn to Slide 25 we've excerpted the title of that
`
`23
`
`section in the first paragraph. It actually spans about four
`
`24
`
`paragraphs on Page 13 and it's a section entitled, The Claimed
`
`25
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`System is Not Well-Known, Routine or Conventional. Well,
`
`EXHIBIT 2011
`
`
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 19 of 63
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`19
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`that's legal argument. Now let's find the evidence that would
`
`back it up that's either in a well pled complaint or to be
`
`found in the patent itself. Their first sentence simply states
`
`that MCM's complaint offers specific evidence that the elements
`
`of the patent claims are not well-known, routine or
`
`conventional. Again just a legal conclusion. It then states
`
`an example, and if you read that example, doesn't say anything
`
`about any elements being unconventional, not well-known, not
`
`routine. It simply says, MCM alleged a system and method that
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`1 2 3 4 5 6 7 8 9
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`10
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`uses specific components to solve the technical problem of
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`11
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`providing access regulation and data traffic control
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`12
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`techniques. Well, the same could be said about a claim that's
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`13
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`not unconventional, right? Or maybe I'm putting too many nots
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`14
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`in there. The same could be said about any conventional
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`15
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`technique, right? There is no allegation in that statement
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`16
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`that there is something unconventional. And if we look to the
`
`17
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`evidence they cite to, the complaint at 57, that's on Slide 26,
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`18
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`you'll see that they have used language there that's -- and
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`19
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`this isn't the only paragraph in their complaint where they use
`
`20
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`similar language, but this is very representative of how
`
`21
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`they've treated this at each instance. And you can search
`
`22
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`throughout Paragraph 57 and their whole complaint for anywhere
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`23
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`where they say, there, Your Honor. There's the unconventional
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`24
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`element in the claims. All they've done here, Your Honor, is
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`25
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`given us two legal conclusions at the beginning, two sentences,
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`EXHIBIT 2011
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 20 of 63
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`20
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`without saying that anything is unconventional in the elements
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`and then they've quoted the claim language for the remainder.
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`They haven't identified a single one of these elements as being
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`unconventional.
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`THE COURT: I am just wrapped with anticipation to hear
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`Mr. Denko address exact -- a direct response and he will tell
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`me what is unconventional when he gets up here.
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`MR. PANKRATZ: I'm sure he will, Your Honor, and I
`
`would --
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`THE COURT: I've got a whole notebook.
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`(Laughter)
`
`THE COURT: And so there's got to be something in here
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`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`13
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`that is unconventional.
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`14
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`15
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`MR. DENKO: There is, Your Honor.
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`MR. PANKRATZ: I would urge Your Honor, and I know you
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`16
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`know this, but conclusory lawyer argument can't stand in for a
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`17
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`well pled complaint.
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`18
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`THE COURT: That was all they ever allowed me to make were
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`19
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`the conclusory general arguments. It took someone smarter than
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`20
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`me to do the harder stuff. But no. I actually -- I completely
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`21
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`follow -- just so your clients don't leave here terrified, and
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`22
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`they may anyway, but no. I completely understand what you're
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`23
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`saying and I will tell you I at some level share the same
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`24
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`concern that there are 57 -- looks a little bit like a cut and
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`25
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`paste of what the patent says and they say, see. We say all
`
`EXHIBIT 2011
`
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`Case 6:18-cv-00207-ADA Document 30 Filed 12/04/18 Page 21 of 63
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`21
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`this and that's what it says in the claim. So I am -- I had
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`already written down and could show you that was one of the
`
`questions I had for the plaintiff was for them to go through
`
`and let me know where in the claim language there was -- there
`
`was something that if they wanted me to find in their favor I
`
`could say in my order this is what's unconventional if they
`
`think they need to get that far if they think they need to get
`
`to Step 2.
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`MR. PANKRATZ: Understood. I will say, Your Honor, that
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`1 2 3 4 5 6 7 8 9
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`10
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`in the section of their brief, that Section B, the four
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`11
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`paragraphs do address one other type of evidence which is the
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`12
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`patent office actions and the inter partes review filings, Your
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`13
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`Honor, it's our position, and I think the Federal Circuit has
`
`14
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`agreed with us, that that is irrelevant for purposes of 101.
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`15
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`It is addressing whether these patents are -- allow --
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`16
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`THE COURT: 101's not before the -- they don't take up
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`17
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`101. I get that.
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`18
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`MR. PANKRATZ: Right. And the Federal Circuit including
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`19
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`in Two-Way Media vs. Comcast has specifically said it's fine
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`20
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`for a district court to just basically disregard that. That's
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`21
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`not evidence of 101.
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`22
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`And the final thing I would like to
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