the next case today is two zero one five one eight nine zero corporation versus new go proceed and good morning imagine if i brought to the podium a device that i attach to the microphone then whenever i spoke to the microphone my voice would come out sounding like that of james earl jones s and i didn't see this notion of voice matching that you're leaving your argument off with in any of the three eight seven or five one zero claims but i saw for example that the three eight seven you just gave me your now i'm going to give you my conception of the three seventh these are method points and so what i'm imagining is my grandmother and challenge when you're living in this retirement community and now there's a boiler room telemarketing boiler room somewhere else in california maybe three hundred people are sitting there in cubicles and their assignment is to hit this retirement community are caught every single one of those people until they pick up the phone and then there's a guy in a cubicle that makes contact with my grandmother and he's got ten tape recorders set up and five and then after my grandmother says hello he hits the play button on tape recorder number one and then after he elicits a response from grandma then the telemarketing agent decide based on what he's hearing to hit play for tape recorder number two or number three and based on what he hears next from grandma then he can choose whether to hit the play button for tape recorder four five six and so on that that's what i heard or read when i looked at the clean one of the three eighty seven  well your honor that sounds more like a noble patent than an over and sound i would suggest that if the district court had done the claim by claim analysis as you are suggesting then it would have found that in the dependent claims there is much more specificity and that if you drill down into the claim language which is what we are saying that needed to be done than you will see that the seamless interleaving of live where you can talk about the impending claims but just to clarify i didn't see anything in your opposition to the other side summary judgment motion or any arguments by your side during the hearing the summary judgment hearing where your side was arguing for and expressing an interest in having a claim by claiming alice's or or suggesting in any way that the claims that the other side raise as being essentially the representative claims for citing the case were the wrong claim to be looking at and then there were other claims that had interesting inventive concepts that were not really captured by the representative claims chosen by the other side there is that fair to say  it's it is fair to say that at the district court level there was very little discussion of the cleanly which itself and it is also accurate that both sides talk about this at a very high level but i would submit to the court that it is not the obligation of the patentee to seek a claim by claim analysis that is what the law requires since each claim is presumed valid individual and unless the parties stipulate to the use of a representative claim which did not occur here so there were there were four patents originally in the thrice right and let's say there were two hundred claims one hundred eighteen hundred eighteen for across or there were in saying that in this particular case cumbia needed to write a brief for explaining for each of the one hundred eighteen claims why each one was invalid under one hundred one and then the district court judge opinion with separate little subsections on all hundred eighteen claims well i think that practically speaking i've yes we've seen maybe twenty opinions from this court right since alice and i don't i haven't seen an opinion that went through all that well and that's true that i looked at them as well and i did not find that but that's usually because the district court did require the parties to select a representative claim or claims and liberty but if they're alleging that there is no genuine dispute don't you have to respond and say there may be engine in a speech to water more or you wave your bite if you just respond in general but we did  identify in the trial court and response summary judgment a number of individual claims and none of those were addressed separately by the court and its in its decision there was something in your opposition brief where you describe some of the individual claims but then when it came to actually arguing why any of the claims were patent eligible then the argument section when i saw it was the patent owner just arguing them all together in a single basket under a single theory well as i said i can see that there was not a deep drill down into that claim analysis of content extraction kind trying to decide this particular issue in the sense that there there were a couple claims that were chosen as the representative claims to validity analysis and this court issued an opinion saying well there that could have been raised below that i could there was an opportunity to address that by the patent on  requiring the district court or to identify and explain why and every claim was invalid but the patent owner never brought that up when the opportunity was there so in this instance your honor what happened was that the patent owner relied on the presumption of the liberty for each claim and then went and we did identify individual claims in the first round briefing but then when we saw that there was no claim by analysis we filed our motion for reconsideration and we specifically asked for the district court to rehear this issue so that we could select a representative claim so that we could drill down into the plain language and but the court deny that  that you know that it was not obligated to do tell me why it wasn't harmless error for the district court to do that point me to a dependent claim in the five ten patent for example that you think if that had been analyzed separately it had the following elements which clearly for example demonstrate and claim the voice synthesizing technology i opened my argument with or something like that show me why it isn't yours district court failed to separately analyzed and he claims and if even if i think you're right about it you have to demonstrate it wasn't harmless error in this case for him to have treated them all as representative so which claim and claim  interaction political excuse me yes your interaction protocol which is defined in column three a line six through eighteen of the creates a and it says quote the integration module allows the execution of an interaction protocol by a human agent the interaction protocol allows the agent to select and present content to a contact in their selected choice type and the integration module may include a mode talks about switching back and forth between live voice and recorder but i don't understand that is just trying to seamlessly intersperse live we simply recorded voice but maybe i misunderstood your telephone if i were to have my voice live and a recorded voice from somebody else who's in a deep pressure cannot be a woman's voice but in a deep register the recorder the voice of someone else and my life force and i could play either of them and because of the impedance matching and the specifics are set out in clear calm seven and eight but because of the bandwidth filtering and impedance matching you would hear a voice that sounds the same whether it came from me alive or whether it came from the basically i mean i grew thrice you write in column three a line seventeen where it says different the differences between the prerecorded script in a live boys of the telemarketer make it difficult for the untrained ear to tell the differences so if what's really critical about this invention if the if one of the things that really adds was the ability to synthesize a lot of voice and the prerecorded voice so that they sound identical pitch cadence everything else we're east if that's the contribution we're  ascribed in this patent i mean i'm electrical engineer but at that doesn't mean i have any vest knowledge of electrical engineering although two thousand and five or two thousand and one is a little more in my ballpark and modern day but nonetheless i don't see software or circuit diagram or anything significant that discloses the technology that would achieve what you're saying is the invention right now so it's suggested that that technology how the bandwidth filters impedance matching is all laid out in columns seven and eight the diagram in figure two shows the voice module the sales agent in the boiler room speaking through a microphone question of the meaning of into integration why over there there was and there was no more i was no markman there was nothing construction it was there we go discovery it was just edging ever argue that this is the meaning of interaction like we cited these sections of the three and seven patent but particular words interaction no i mean like for example in the paragraph of the sentence above the paragraph you're quoting from says for example the marker maybe a female with a low voice and she would select the script that has been pretty recorded in a low speaking female voice yes so that there are limits to what the technology got to that's not necessarily some kind of was being technical impedance matching synthesis of the speaker's voice with with some prerecorded voice that's more like just trying to generically trying to find of of all the pretty records rips somebodies voice that's kind of like that agent's voice no i know that well i'd respectfully disagree with your honor and that's i mean yes it cannot since it cannot normalise between my voice and a soprano voice and it would only you would choose the alto version if you were a woman with a with a lower voice but it can within that bandwidth it can make the voices sound the same over a telephone so that i can thank you your honors the court is presented with two different standards that review the grant of summary judgment is reviewed you know though the denial of the motion for reconsideration is the abuse of discretion standard and this court has made very clear the supreme court and this was made clear over the last couple years of the two types of computer patents there's hatton's that actually improve the functioning of the computer whether it be at a new database structure that  something different or whether it's the creation of a hybridized website that accomplishes a goal and then there's patents where the computer just does what's been done before only a dozen more efficiently now but what he's arguing as i understand described in column seven and that sounds awfully technical and specific i mean you know the ability to marginally voice so that if this isn't just  listening receiving a call and heating one button versus a different button based on how you think the best response should be this pattern is allowing you to spend part of the time talking then spend part of the time with prove accorded voice and what does seem to be technical and let it be that something extra that takes it in alice step two beyond an abstract idea that something technical something act extra is it describes in column seven an  extra that definitely sounds something interesting that takes it outside the bounds of just an abstract idea that that ability to modularly the pre recorded voice and a live boy and if that were actually in the claim your honor we would have a little different discussion why isn't it when because he's talking he's reading about the a module within the system that can be do various things but if you look at the steps it simply executing an interaction protocol to create an interaction with the contact just creating a contact with somebody you're picking up the phone you're dialing the phone hello mrs smith that's all of that that it nowhere in there does it say oh using this to make it seamless or dynamic or any of those and none of this was and i'm sorry could you repeat that that was the genius of the invention that was the argument before the court we argued before the court eleven times in our briefing there is no technology here there that claims are devoid of any technological result they don't claim technology eleven times in our briefing note ward did not respond they saw the d d r decision and they argued d t r to the district made for months after summary judgment granted they come up with a new idea we should respond to that company as arguments and they raised them in a motion for reconsideration under ten circuit law tend not be used to race arguments that could or should have been raised before there's a court it may only be used for a clear error of law or where there's newly discovered evidence if they newly discovered that they have a technology there's a problem because you're supposed to know that when you prosecute the patent what your technology is and you're supposed to flame it and these claims don't address that they're out trying to  program to do various things with a simple step of initiating a call you're going through a process you know give me the next call the computer goes out in the next call and you got it that's what the claim say and they didn't argue that they didn't ask for a marksman hearing they didn't make the argument and judge stewart heard the argument and he said you know i've looked at every one of these claims individually i've looked at them collectively and there's just nothing more here which is exactly the argument that we have made repeatedly during as we address the court there's no technology here they're not claiming i think let's make sure i understand your argument your which i think i do the argument is twofold number and whatever argument i raised with you and he raised with me is not the one that was raised a lot yes but even if it were your saying none of these cla say oh no we have we do this we do this we do this they didn't respond they're only response was they just repeated what the claim said and said yeah but we use we use voice actors and and then you know with their with their fla eighteen deciding on energy actions we can do these things they're advanced the whole argument they made to the different orders we have interjections we've recorded yes no aha i'm sorry if you repeat that a bit well that's not a technological and then in there in the motion for reconsider ration they try to change the argument but they have arguments there and we could have addressed those arguments had they been right but it's just not in the claims there's nothing there and we argue that over and over and that's exactly what what judge stewart found it was that the claims that everything in these claims are just the steps of traditional marketing you know when you decide on intervening do i use my script or did she give me a really weird response that doesn't really match my script so i'll do something to guide her back to the script that's in there jack area that can be interjecting or it can be an ad libbed response this is just every day telemarketing it goes on millions and millions and millions of times a day whether it be judged chen's grandmother or whether it be my wife whether it be me in the middle of a meeting i get a call on my cell phone and it's another telemarketer the steps that they identify here are literally the steps of telemarketing applied through a computer this is far less technical and then than mediating risk as in bilski or intermediate settlement in alice this is could have been cleaned and avoided else problems but not as claimed because everybody wants the biggest broadest claims and how many drills down the room or in the depending claims to take it to the level of detail so why is he not correct that limitation is not claimed in the stat where i have to believe that it is claimed through the use of the word interaction protocol and that we need to know but but it but if it doesn't just say includes an interaction protocol it is a method claim this method executed in order initiating a call out and agent to selectively interleave during the call we often say that a method steps sometimes have to be pursued performed in the order presented sometimes do not and what we look at and you've made no argument that these don't have to be performed in order that end it would make no sense this this claim clearly is meant to be performed in order providing a system for interaction executing an interaction per call to create an interaction eating the call allowing an agent to selectively interweave record scripts so the interaction protocol and this claim is only being used to execute and create the interaction with the cut with the context it may be that the interaction particle is capable of doing a lot more at different times but the way those words are used in this claim in order in sequence is only the interaction protocol to create the interaction to establish the communication so i you may be right that the interaction protocol as described in the spec is capable of doing a lot more but not in this one but am i missing lawyer i think that this is a decision of that needs to be made based patent office so there's clearly there is a bigger broader record about how to interpret these claims which is what the district court needed to do that's all we're asking is for the present this argument to the district court in the first instance because a we submit a proper reading of these claims does say that interaction protocol mean specifically not just picking up the phone and calling somebody but utilizing this technology which allows the seamless interleaving of voice and record it and i will just say that this is a technological problem you know it's you know when you pick up the phone and there's that one second click and you know on the other end you're being referred to a call center so immediately hang up well there's an abstract idea like in d d r and ask them of keeping the person on the line but it's a technological problem here there was a technological problem created by the use of the recorded scripts and that is that when people knew that they were talking to a computer they'd hang up there's no compunction about talking to a computer it was a problem caused by the technology this is the solution that allows live and recorded to occur simultaneously to solve a technological problem