TRINITY INFO MEDIA, LLC v. COVALENT, INC.
Oral Argument — 11/02/2022 · Case 22-1308 · 29:47
0:00
Judge Stoll
Our next case is appeal number 22-1308, Trinity InfoMedia v. Covalent.
0:09
Mr. Hilliard, whenever you're ready.
0:12
Appellant Attorney (Gregory Hillyer)
May it please the Court.
0:14
On behalf of Trinity InfoMedia LLC, we ask that the Court reverse and amend the District Court's order
0:23
granting Covalent's Rule 12b-6 motion for dismissal
0:28
on the basis that every claim of both two patents in suit are invalid under 35 U.S.C. 101.
0:38
And we do so for two principal reasons, while acknowledging that there's other requests that we make,
0:46
including for claim construction, for fact discovery.
0:50
I want to start off with the precept that the characterization of these claims was first made by Covalent
0:57
as matching users.
0:59
Who gave corresponding answers to a question.
1:03
The District Court adopted that generic characterization of the claims.
1:09
And to the extent that the Court ever narrowed its characterization, it only did so
1:13
by characterizing the claims as collecting information, analyzing it, and displaying results.
1:23
Now that's important for a couple of reasons.
1:25
First, because it violates the precept that this Court has constantly reinforced
1:30
that when a claim is made, it must be approved by the District Court.
1:31
Second, that when conducting a 101 analysis, it is improper to genericize the claims
1:37
because in so doing, you're necessarily going to be driving toward an abstract idea conclusion.
1:45
And I think it is self-evident that if claim limitations, particularly those that might be new,
1:54
that might be non-abstract, that might impart benefits over general purpose computing, are ignored,
2:01
then you might as well not conduct the analysis at all.
2:04
Because at the end of the day, you're going to be able to support your predetermined conclusion
2:08
that this is about matching users.
2:11
Judge Stoll
What is your articulation of what the claims are directed to?
2:15
I mean, without reading the whole claim, what are they directed to?
2:19
Appellant Attorney (Gregory Hillyer)
The claims are directed to accept creating user profiles, posing questions to a user,
2:29
and this is the important one,
2:31
attaching a unique identifier,
2:34
to the answer so that that answer can find its place
2:37
in a new and novel array of matched servers
2:41
rather than a single matched server that would have to later be searched,
2:47
so that the matching answers can eventually be found
2:51
more efficiently, more adeptly, with quicker speed and efficiency,
2:55
basically for an infinite number of users.
2:58
Now, for most of my time, I'm going to focus on unique identification
3:04
and multiple matched servers.
3:06
Judge Cunningham
Do your claims actually require the use of an array?
3:11
Appellant Attorney (Gregory Hillyer)
So, Claim 8 builds in greater hardware, including a matched aggregator and matched servers.
3:18
Claim 1 does not specifically recite those pieces of hardware.
3:23
Judge Stoll
When you refer to Claim 8, which patent?
3:25
Appellant Attorney (Gregory Hillyer)
Oh, I beg your pardon, of the 321 patent.
3:30
And in fact, it supports analysis of Claim 8 that I think is going to be particularly insightful,
3:35
in part because even though there's additional components to the system
3:42
that the complaint and the patent identify as advances over the prior art
3:49
that improve efficiency overall,
3:52
the court still manages to take Claim 8 and reduce it down into those
3:58
bromides that I gave you at the top of my argument.
4:01
So, to further answer your question, Your Honor,
4:03
unique identifier is recited in Claim 1,
4:07
and then it's a question of claim construction as to whether receiving and storing
4:15
import the use of multiple matched servers.
4:18
That's an open question.
4:19
Judge Cunningham
You never proposed a specific claim construction, correct?
4:23
Appellant Attorney (Gregory Hillyer)
Because we never had the opportunity, Your Honor.
4:25
In fact, during the oral argument in front of the District Court,
4:30
His Honor asked me what claims I thought required construction,
4:34
and I answered that question,
4:37
but the motion was granted before we had an opportunity to address it.
4:41
Judge Bryson
What answer did you give?
4:42
Appellant Attorney (Gregory Hillyer)
Your Honor, it's in the briefing.
4:44
I could direct your attention to it,
4:46
but it certainly included unique identification as well as receiving and storing.
4:50
Judge Bryson
And what would you now, if you can go a numerical tone,
4:54
what would you now say is the proper construction of unique identifier
4:59
that would have made a difference had the District Court construed the term
5:03
in the way that you proposed?
5:05
Appellant Attorney (Gregory Hillyer)
Your Honor, in order to answer that question,
5:08
I'd have to turn my attention toward the specification to come up with...
5:12
Judge Bryson
Well, surely you had something in mind.
5:14
I mean, you've been using the term unique identifier,
5:17
which is not self-explanatory, at least not to me.
5:20
So why don't you tell us what you think that term means,
5:24
which presumably would be the way you would want it to be construed.
5:27
Appellant Attorney (Gregory Hillyer)
Loosely stated, Your Honor, I believe it refers to the positioning,
5:31
the assignment that is given to,
5:34
to an answer based on a tabular formula that's in the specification
5:40
that identifies its position in a match server.
5:43
Judge Bryson
So if a computer tags a particular answer
5:47
and the tag is unique for that answer, that's enough?
5:52
Appellant Attorney (Gregory Hillyer)
Well, Your Honor, I don't think it's the uniqueness of the answer.
5:55
I believe it's the uniqueness of...
5:56
Judge Bryson
No, no, the uniqueness of the response, I should have said.
5:59
Not that the answer may not be the same answer given,
6:02
but the uniqueness of party A gives this response,
6:06
and that would be what you would tag, right?
6:10
Appellant Attorney (Gregory Hillyer)
I believe it's more than that, Your Honor.
6:12
Judge Bryson
Okay, what more?
6:13
Appellant Attorney (Gregory Hillyer)
I believe it's not only the answer itself,
6:16
but it's based on the user, the answer, and the position in the match server.
6:21
Judge Bryson
All right.
6:21
Appellant Attorney (Gregory Hillyer)
So that rather...
6:24
Just simply stated, you can have one server,
6:29
and it can fill up with information,
6:31
and you can never need another server,
6:33
because you have the capacity.
6:36
Traditionally, if you use a second server,
6:39
it's for the overflow of the first server,
6:43
so that in a matching protocol,
6:45
you would have to search every answer in that server
6:48
and then go to the second.
6:50
This is a distributed model
6:54
where the unique identifier finds a position
6:57
in the collection of matched servers,
7:00
so that when the searching is done,
7:02
it can be done instantaneously.
7:04
Judge Bryson
Right, but distributed architecture
7:05
has been around for a long time, right?
7:08
But you didn't invent distributed architecture in this patent.
7:11
Appellant Attorney (Gregory Hillyer)
I didn't invent anything.
7:12
I think that's one thing we won't have an argument about.
7:14
I'm being tongue-in-cheek.
7:16
Judge Bryson
All right.
7:19
Appellant Attorney (Gregory Hillyer)
No, Your Honor, but at the same time,
7:21
in order for me to make an admission about what exists
7:23
and what doesn't exist,
7:25
we need the opportunity at the district court level
7:27
to get more granular about it.
7:29
And indeed, one of the things that I can feel your reluctance,
7:32
I think...
7:32
I feel that all the way over here.
7:33
Judge Bryson
I'm having trouble getting a handle on the argument
7:37
if I don't know what it is that you think
7:40
the district court should have done
7:42
by way of telling us what the patent is all about.
7:50
Appellant Attorney (Gregory Hillyer)
Trinity is not claiming an invented match...
7:52
servers.
7:53
Judge Bryson
Right.
7:55
Appellant Attorney (Gregory Hillyer)
The degree to which they've been used
7:57
for matching protocols is not in the record,
8:00
and we take the position
8:02
that the use of additional matched servers
8:05
in the way that's claimed and described
8:06
is novel, unique, and advanced over the art.
8:10
Judge Bryson
How about swiping?
8:13
Now, you've referred to swiping
8:15
as a feature of this invention
8:18
that falls into the inventive concept category, I take it?
8:23
Appellant Attorney (Gregory Hillyer)
Correct.
8:24
Judge Bryson
But again, you didn't invent swiping, obviously.
8:27
You're not claiming that you invented swiping.
8:29
Appellant Attorney (Gregory Hillyer)
I think it's important to recognize
8:31
that the priority date of this application is 2010.
8:34
And in this...
8:35
Judge Bryson
Yeah, but the application...
8:36
the patent that refers to swiping is 2018, right?
8:42
The 685?
8:44
Appellant Attorney (Gregory Hillyer)
Your Honor, that application claims priority
8:46
back to 2010, if memory serves.
8:49
Judge Stoll
But does this classification refer to swiping,
8:51
or just the claim?
8:52
Judge Bryson
This classification does not refer to swiping.
8:55
All that swiping shows up in is in the claims,
8:59
which were new as of 2018.
9:01
So your priority date for the claims
9:03
presumably would be 2018, right?
9:06
Appellant Attorney (Gregory Hillyer)
I would disagree with you.
9:07
Judge Bryson
Okay.
9:07
Tell me more.
9:08
Appellant Attorney (Gregory Hillyer)
The 685 is a continuation in part
9:11
that adds additional subject matter,
9:13
but the written description support for swiping
9:16
dates back to the priority date of the 321 patent.
9:18
Judge Bryson
Where is the written description?
9:20
Appellant Attorney (Gregory Hillyer)
Your Honor, it's the reference to the use
9:23
of the invention on a handheld device.
9:26
I don't have the pin site in front of me.
9:28
Judge Bryson
Right, handheld devices go back a good date,
9:31
but swiping itself...
9:32
I believe I'm correct in this, but I may be wrong,
9:35
so correct me if I am.
9:36
I don't think the word swiping appears anywhere
9:38
in the written description of the 685.
9:42
Am I wrong?
9:45
Appellant Attorney (Gregory Hillyer)
No, you're right, Your Honor.
9:46
But when the claim was prosecuted
9:48
in front of the examiner,
9:50
the written description support that was given
9:52
was for the recitation of handheld device.
9:56
And by the way...
9:57
Judge Bryson
But handheld device does not equal swiping.
10:01
Appellant Attorney (Gregory Hillyer)
We disagree.
10:02
Judge Bryson
You think handheld device necessarily entails swiping?
10:06
Appellant Attorney (Gregory Hillyer)
We believe that one of ordinary skill in the art
10:08
would recognize that an operation
10:10
that's part and parcel of a handheld device is swiping.
10:13
Judge Bryson
Even at the earliest times
10:15
that handheld devices were in existence?
10:18
Appellant Attorney (Gregory Hillyer)
It depends how you define a handheld device, Your Honor.
10:21
I mean, a handheld device could be a rotary gun.
10:25
Judge Stoll
So, just again, this goes to the question
10:27
originally posed was, did Trinity invent swiping?
10:30
And you're saying Trinity invented swiping
10:32
because in the patent application in 2010,
10:35
it refers to handheld devices.
10:38
So that means that Trinity invented swiping.
10:41
No, Your Honor, we're not...
10:42
Appellant Attorney (Gregory Hillyer)
I'm just trying to understand.
10:43
No, we're not claiming to have invented swiping.
10:46
But what I do want to point out, though,
10:49
is that, and the District Court did this as well,
10:52
so at the risk of disagreeing with the inquiry,
10:58
what we're suggesting is that we had a priority date
11:02
that supported swiping in connection with a matching protocol.
11:05
It's not inventing swiping in a vacuum,
11:08
which is hugely different.
11:10
But I also want to point out
11:12
that the undue focus on a particular element in isolation
11:18
and talking about its inventiveness
11:21
betrays the necessity to consider the claim
11:24
not just as a whole, but as an ordered combination.
11:27
And the District Court engaged in...
11:30
Judge Stoll
The only reason why this question is coming up
11:31
is because you've argued it as an inventive concept.
11:34
We're not swiping...
11:35
I'm just saying that you're not arguing it on its own,
11:38
but as an ordered combination
11:40
with the other elements in the claim.
11:42
Appellant Attorney (Gregory Hillyer)
In a matching protocol.
11:45
In matching operations, correct.
11:47
Judge Stoll
Well, that's what's...
11:48
Correct.
11:48
You're considering the ordered,
11:49
all of the elements of the claim.
11:51
Appellant Attorney (Gregory Hillyer)
Yeah, and the reason I'm making...
11:52
I apologize, I didn't mean to talk over you, Your Honor.
11:54
The only reason I'm pointing that out
11:56
is because this seductive nature
11:58
of identifying every element
12:00
and saying known, known, known, therefore...
12:03
Judge Cunningham
Do you have any allegations in the complaint?
12:05
Explain why swiping,
12:07
it can be as an ordered combination,
12:09
is inventive.
12:10
Can you point us to something?
12:11
Give me a page site?
12:12
Give me something?
12:13
Appellant Attorney (Gregory Hillyer)
Well, Your Honor, we do identify,
12:18
and I think I can put my finger on it right away,
12:21
allegations in the complaint.
12:26
I think it's in the briefing materials
12:27
which gives the pin site.
12:29
It's on page 24 of our principal brief.
12:33
Judge Cunningham
And then maybe if you do me the favor,
12:35
can you give me what that pin site is?
12:37
Appellant Attorney (Gregory Hillyer)
Certainly it's appendix 78.
12:38
Thank you.
12:39
Which I believe is the amended complaint.
12:41
It would be paragraph 32.
12:43
Thank you.
12:43
Certainly.
12:47
May I continue?
12:50
Am I into my rebuttal time?
12:52
Judge Stoll
Yes, you are.
12:54
Do you see the yellow light?
12:55
Appellant Attorney (Gregory Hillyer)
Yeah, I do.
12:56
Judge Stoll
During your rebuttal time.
12:57
Appellant Attorney (Gregory Hillyer)
The point I wanted to add,
13:02
consistent with my argument,
13:04
that stripping away the claim limitations is going to...
13:07
Judge Stoll
Do you want to preserve your rebuttal time?
13:10
Appellant Attorney (Gregory Hillyer)
If the court would indulge me.
13:11
I promise not to overstay my welcome.
13:15
If I could be given one or two minutes,
13:18
that would be much appreciated.
13:22
So the driver behind finding this to be abstract
13:26
and indeed under prong two,
13:28
determining that there's nothing new here,
13:30
there's no factual disputes
13:32
as to whether or not it's new, known,
13:35
or improves functionality,
13:38
were all...
13:39
Those conclusions were supported
13:41
by the analysis,
13:44
which essentially walked through
13:46
each of the claim elements
13:48
and simply said,
13:49
those are all abstract.
13:50
And in fact,
13:50
the total analysis of claim one
13:52
of the 3-2 patent
13:53
is at appendix 15,
13:58
which simply states...
13:59
It's page 15 of the order,
14:01
and simply states...
14:04
I suppose it starts on line nine.
14:07
Limiting the abstract idea,
14:09
that abstract idea,
14:11
to the particular environment
14:12
of the claimed processor,
14:14
memory, unique identifier,
14:16
receiving and storing,
14:18
which in my view would also include
14:19
the match servers,
14:21
in the memory,
14:22
do not make claim one less abstract.
14:27
Now there's case citations there,
14:29
but there's no other explanation
14:31
as to why the allegations in the complaint,
14:34
which say otherwise,
14:36
can be ignored.
14:38
Judge Cunningham
But aren't those allegations
14:39
that you point us to pretty conclusory?
14:42
Like, do you have something in the allegations
14:43
that's not so conclusory?
14:46
Appellant Attorney (Gregory Hillyer)
Well, Your Honor,
14:47
I believe that the PIN sites
14:51
not only include summaries
14:54
of whether something was either new
14:58
or includes or advances the art
15:02
in terms of functionality, etc.,
15:04
but also included citations
15:05
to the specification.
15:07
If you want to talk about
15:08
a particular limitation,
15:09
we could do that.
15:11
But...
15:11
Judge Cunningham
I was just...
15:12
You pointed me to paragraph 32.
15:14
I'm just kind of working
15:15
with you on this, right?
15:16
Okay.
15:16
Opinion 38.
15:17
You were asking about swiping and the like.
15:19
And I was asking, of course,
15:21
there's something in the complaint materials
15:23
to tell us what would be inventive,
15:25
whether it's as an ordered combination
15:26
or individually.
15:28
You gave me paragraph 32,
15:29
which to me looked pretty conclusory.
15:31
I was just asking
15:31
if there was anything less conclusory
15:33
you could point me to.
15:35
Appellant Attorney (Gregory Hillyer)
That's the best citation
15:36
I can give you for swiping.
15:38
There's probably greater specificity
15:41
as it relates to unique identification
15:43
and match servers
15:44
because that's sort of at the hallmark
15:46
of what's different.
15:49
Judge Cunningham
That answers my question.
15:50
Appellant Attorney (Gregory Hillyer)
Thank you.
15:51
Judge Stoll
Okay.
15:51
I think you're out of time.
15:54
Okay.
15:54
Thank you, Your Honor.
15:54
We'll hear from Mr. Dietrich now.
15:57
Very well.
15:59
Appellee Attorney (Thomas Dietrich)
Good morning, Your Honors.
16:00
May it please the Court,
16:02
Tom Dietrich,
16:02
MacArthur Law,
16:03
PC,
16:04
on behalf of the Kelly Covalent, Inc.
16:07
First,
16:08
going back to Judge Cunningham's question
16:10
or statement
16:11
that the allegations
16:12
are pretty conclusory
16:13
in the complaint,
16:14
you're very correct.
16:16
They are conclusory
16:18
and they are not
16:19
about as conclusory
16:20
as it could get.
16:21
These are the kind of allegations
16:23
that have been rejected
16:25
in other cases
16:26
that have found
16:29
that they are simply
16:30
legal conclusions
16:30
couched as factual allegations
16:33
and have found
16:35
that the District Court
16:36
did not need to rely
16:37
on those basic legal conclusions
16:41
in analyzing a motion to dismiss
16:44
under Rule 12b-6.
16:46
Some of those cases include
16:47
Dropbox versus Synchronos.
16:49
Simeo and Boom payments.
16:52
In all of those,
16:54
the District Court
16:54
was found to have
16:55
properly disregarded
16:57
unsupported legal conclusions
16:59
of the type raised by Trinity
17:01
in its complaint.
17:05
And so,
17:07
it is Covalent's position
17:08
that yes,
17:09
the allegations
17:10
are extremely conclusory.
17:11
There actually are no
17:13
additional factual allegations
17:14
regarding unique identification
17:16
or match servers.
17:18
And,
17:19
the identification of swiping
17:21
merely just states
17:22
swiping exists
17:23
and that's it.
17:26
So,
17:29
going to Trinity's argument
17:34
that the District Court
17:35
overly simplified
17:36
the claims of these patents,
17:39
Covalent's position
17:40
is that it's not correct
17:41
or accurate.
17:42
The District Court
17:43
carefully analyzed the claims
17:45
and it did provide
17:46
a more simplified description
17:48
of the claims
17:49
as has been done
17:50
and approved of
17:51
in many other cases
17:53
reviewed by this court.
17:54
Sales spin comes to mind
18:00
where the District Court
18:02
properly simplified
18:04
the claim language
18:06
into something that was
18:07
more easily definable.
18:10
And here,
18:12
it was no different.
18:13
The claims at issue
18:17
all cover the abstract idea
18:20
of matchmaking.
18:21
That is,
18:22
matching people who gave
18:23
corresponding answers
18:24
to a question.
18:26
That's a mental process
18:27
and that is...
18:30
Judge Stoll
How do you respond
18:32
to the argument
18:32
that there is
18:34
an inventive concept here,
18:35
it's assigning
18:36
a unique identifier
18:37
to each one of the answers
18:39
which then makes matching
18:40
so much easier?
18:43
Appellee Attorney (Thomas Dietrich)
I would respond
18:45
a couple different ways.
18:47
The unique identifier is
18:50
undefined.
18:51
It could be
18:52
the question number,
18:53
question number one,
18:55
assigned to question number one,
18:56
question number two,
18:57
assigned to question number two.
19:00
Your point is that
19:01
Judge Stoll
the claim is so broad.
19:02
That's not really what's...
19:04
What about claim eight,
19:05
which was identified?
19:07
Appellee Attorney (Thomas Dietrich)
Claim...
19:08
Sorry, go ahead.
19:09
Judge Stoll
That's okay.
19:10
I was just going to say
19:10
please go ahead.
19:12
Appellee Attorney (Thomas Dietrich)
And as a matter of fact,
19:15
in its complaint,
19:16
in its amended complaint,
19:17
Trinity says that
19:18
the unique identifier
19:20
that was used by Covalent
19:22
was simply the answer
19:25
that the question
19:26
referred to a female.
19:28
That somebody was selecting
19:29
a female and just female
19:31
was the unique identifier
19:33
is what's alleged by Trinity.
19:35
Judge Stoll
You're saying in terms
19:36
of the infringement allegations?
19:37
Appellee Attorney (Thomas Dietrich)
In terms of the infringement
19:38
allegations, correct.
19:40
So with regard to claim eight,
19:43
it recites distributed computing
19:46
as Judge Bryson pointed out,
19:47
which Trinity has not alleged
19:50
to have invented that process.
19:52
And it simply conducts
19:56
the abstract comparison
19:57
on a subset of users
19:59
on one server
20:00
and a subset of users
20:02
on another server
20:03
and combines them.
20:08
The distributed computing focus
20:11
does nothing more...
20:13
And I think we're more or less
20:14
focusing on step two
20:15
of the Alice analysis here.
20:17
The distributed computing
20:21
does no more than simply speed up
20:24
or potentially make more efficient
20:27
the matchmaking process.
20:29
It is using conventional
20:32
computer technology
20:33
that Trinity has not alleged
20:35
it invented to make
20:37
the abstract process go faster.
20:40
That is not an inventive concept.
20:43
It's simply using computers
20:45
as a tool in the way that they
20:47
have always been used.
20:48
To speed up a mental process.
20:55
So going back to...
20:59
Trinity didn't really address
21:01
step one in its moral argument.
21:05
In its briefing it did
21:07
and claims that the claims
21:08
are not abstract.
21:10
I think that a review of the claims
21:13
makes clear that they are all directed
21:14
to this idea of answering,
21:17
of matching users
21:18
based on their corresponding answers
21:19
to a question.
21:20
Judge Stoll
Do you agree with
21:21
the district court's articulation
21:22
of what the claims are directed to?
21:25
Appellee Attorney (Thomas Dietrich)
Yes.
21:25
Covalent does agree.
21:28
Judge Bryson
We've had obviously a lot of
21:30
one-on-one cases over the last
21:32
since about eight years at least
21:35
since Alice.
21:36
Maybe ten since Mayo.
21:39
What do you think is the
21:41
most closely analogous case
21:44
to this one among the cases
21:45
that we have decided?
21:48
Appellee Attorney (Thomas Dietrich)
Your Honor, I think there's two cases
21:50
that come to mind
21:51
as being closely analogous.
21:53
Intellectual Ventures versus Capital One.
21:56
Judge Bryson
IV1, is that the...
21:58
Appellee Attorney (Thomas Dietrich)
IV1 versus Capital One.
22:00
Right.
22:01
It actually involved
22:04
some of the same types of things
22:06
that Trinity is claiming to have invented
22:09
such as real-time customization
22:10
of web pages.
22:15
And as well as adding
22:19
unique identifications to content.
22:23
And so I think that's...
22:24
Judge Bryson
Unique identification was in
22:26
the Capital One case?
22:28
Appellee Attorney (Thomas Dietrich)
I believe it was in the Intellectual Ventures
22:30
versus Capital One case.
22:32
And then the second case
22:34
that comes to mind is
22:35
Personal Web versus Google.
22:37
A more recent case from 2021.
22:39
Oh, actually, sorry.
22:41
Personal Web contained the unique identification
22:45
based on content.
22:46
And Intellectual Ventures
22:49
was involving tailored advertising.
22:52
So those are the two cases
22:54
that come to mind.
22:55
Okay, thank you.
22:56
I think that just briefly
22:59
on the first step,
23:02
it's pretty clear looking at the claims
23:04
that these are the types of claims
23:06
that are collecting data, analyzing it,
23:08
and providing a result
23:10
as has been held unbattendable
23:12
in Electric Power Group.
23:14
SAP versus Investpick
23:16
is also on point.
23:19
Going to...
23:20
SAP, did you say?
23:21
SAP.
23:21
Yeah.
23:21
Yes.
23:24
Going to step two...
23:26
Can you speak to a point
23:26
Judge Cunningham
that your opposing counsel made?
23:28
We were talking about claim construction.
23:29
He suggested the District Court cut him off.
23:32
He couldn't offer any claim construction.
23:34
Can you just tell me a little bit more
23:35
about what occurred there?
23:37
Appellee Attorney (Thomas Dietrich)
Yes, I certainly can.
23:43
In the District Court,
23:45
the most that Trinity did
23:47
was during the hearing,
23:48
toss off a couple terms
23:50
that Trinity believed should be construed.
23:54
It didn't provide any explanation
23:58
of why those particular terms
24:01
should be construed and...
24:02
Judge Stoll
Did they provide particular constructions?
24:04
They did not.
24:05
Appellee Attorney (Thomas Dietrich)
They did not provide...
24:06
Judge Stoll
Did the District Court say,
24:07
I don't want to hear
24:08
of claim construction right now
24:09
or anything like that?
24:10
Appellee Attorney (Thomas Dietrich)
No.
24:10
The District Court did not say anything
24:12
along those lines.
24:13
Trinity simply tossed off some terms
24:16
and provided no explanation
24:18
of why those terms should be construed
24:22
or how they should be construed
24:23
and how that construction would help
24:26
in the Section 101 analysis.
24:28
And that was even...
24:29
We were given the opportunity
24:31
for supplemental briefing
24:32
after the hearing on the motion to dismiss.
24:35
We, a week after the hearing,
24:37
filed a five-page brief
24:38
on other issues raised at the hearing,
24:41
and yet Trinity still, to this day,
24:44
has never provided any information
24:46
on claim construction
24:46
and why that claim construction
24:49
would be helpful to analyze the issues.
24:51
And there are cases,
24:53
Simeo and Dropbox v. Synchronos,
24:56
that both address this issue
24:58
of the patentee's failure
24:59
to actually provide
25:00
some substantive claim construction.
25:04
So, no, I don't think there is any issue
25:07
that the District Court missed
25:09
regarding claim construction,
25:10
and I don't think that it would have changed
25:12
the analysis either way.
25:13
Judge Bryson
Is this a case in...
25:15
It wasn't clear to me from the record,
25:17
but did Judge Holcomb provide the parties
25:22
with a tentative ruling in advance?
25:24
That's sometimes done in Los Angeles.
25:26
Appellee Attorney (Thomas Dietrich)
Yes, he did.
25:27
Judge Bryson
I got the flavor that that had been...
25:29
And that was provided to the parties
25:31
in advance of the hearing?
25:32
Appellee Attorney (Thomas Dietrich)
Correct.
25:33
Okay.
25:37
So, I think that this Court,
25:40
from these questions,
25:42
has a handle on step one.
25:45
I think that it's an abstract process.
25:47
Step two,
25:47
looking at the claims,
25:50
many of the assertions
25:51
are not even included in the claims
25:53
as to what constitutes an inventive concept,
25:59
and particularly with regard to swiping,
26:06
the issue raised before,
26:07
I believe it was Judge Bryson,
26:09
you were on point there saying
26:10
that the specification of the 685 patent
26:13
doesn't contain the word swiping,
26:16
doesn't contain any description of swiping,
26:18
it contains nothing about swiping.
26:20
Trinity alleged at the hearing
26:22
they relied on the simple definition
26:26
handheld device to incorporate that term
26:28
into the limitation,
26:31
and Mr. Hillier stated that swiping
26:34
was considered to be part and parcel
26:37
of using a handheld device.
26:39
Well, it's not going to provide
26:41
an inventive concept
26:43
when it is apparently so well known
26:45
that it's just considered part of using
26:47
a handheld device.
26:49
At most,
26:50
that is insignificant post-solution activity
26:53
added on to the end of an abstract process,
26:56
and it's not sufficient to transform
26:58
that abstract process into a patentable invention,
27:01
unless the court has any other questions.
27:05
Judge Stoll
Okay, thank you.
27:06
Thank you.
27:06
Thank you, Mr. Dutra.
27:08
Mr. Hillier,
27:10
you are out of time,
27:11
but I will give you two minutes for rebuttal.
27:17
Appellant Attorney (Gregory Hillyer)
Thank you, Your Honor.
27:18
I appreciate it.
27:19
I'll use it wisely.
27:20
I just want to direct the court's attention
27:21
to the district court's treatment of Claim 8,
27:24
which I think we can all agree
27:25
has greater recited specificity
27:28
than Claim 1 of the 321 patent,
27:31
and I'm at Appendix 20,
27:34
which is the district court's ruling,
27:36
and it's actually also page 20 of the order,
27:38
but it's Appendix 20,
27:40
and the court refers to the specifics
27:45
in the specification
27:47
concerning the use of multiple match servers.
27:50
The court indicates
27:51
the specification of the 321 patent
27:54
discloses that using a plurality of match servers
27:56
would allow the system to quickly connect the users
27:59
based on their similarities.
28:01
The court continues,
28:02
by using the divide and conquer design,
28:04
the system can scale
28:05
to a nearly unlimited number of members and polls.
28:09
Thus, the invention described in the specification
28:12
purports to improve the matching process
28:15
through the use of multiple match servers
28:17
in parallel as opposed to a single
28:19
or sequential set of match servers.
28:21
I'd ask the court to look at the opposing page,
28:24
page 21, line 9.
28:27
The court rejects Trinity's argument
28:29
that the court must accept its allegations
28:32
that the asserted claims are directed
28:34
to the improvement of general-purpose computing
28:36
and advances to matching protocols.
28:38
Well, it's difficult to imagine
28:40
how Trinity could have given greater specificity
28:43
coupled with, in isolation,
28:45
what's a generic statement,
28:46
but the reason the statement
28:48
about improvement to general-purpose computing
28:49
was made in advancing the matching calls,
28:51
was in light of the explanations
28:53
provided in the specification.
28:55
The last thing I want to just touch base on
28:57
is the supplemental authority
28:59
that we submitted several days ago
29:02
by letter to the clerk
29:04
pursuant to Federal Rule of Appellate Procedure 28J.
29:08
This is a fairly recent decision
29:10
issued by this court
29:11
called Cooperative Entertainment.
29:14
And it, I think it's on all fours
29:17
with respect to this case
29:18
in as much as it relates to prong two.
29:20
And the court calls out a number of things
29:22
that contradict covalent's arguments,
29:26
one of which is that something can't be,
29:28
useful improvements to computer networks
29:30
can't be patentable
29:31
if the network is comprised
29:33
of standard computing equipment
29:35
according to this decision alone.
29:37
Okay, thank you, Your Honor.
29:38
Judge Stoll
We appreciate it.
29:40
Appellant Attorney (Gregory Hillyer)
Thank you for your time.
29:41
Judge Stoll
Thank you very much for your argument.
29:44
The case will be submitted on the briefs.