trials@uspto.gov
`571-272-7822
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`
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`RECORD OF ORAL HEARING
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`CBM2015-00071, Paper No. 34
`June 17, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`- - - - - - -
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`UNITED STATES PATENT TRIAL AND APPEAL BOARD
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`GOOGLE, INC.,
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`Petitioner,
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`v.
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`BETTER FOOD CHOICES, LLC,
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`Patent Owner.
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`- - - - - - -
`
`Case CBM2015-00071
`
`Patent 5,841,115
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`- - - - - - -
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`Oral Hearing held on: Thursday, May 19, 2016
`
`Before: MICHAEL P. TIERNEY, GLENN J. PERRY, and
`MINN CHUNG, Administrative Patent Judges
`
`The above-entitled matter came on for hearing on Thursday, May
`19, 2016, at 1:03 p.m., Hearing Room B, taken at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`Reported by: Carla L. Andrews
`
`
`571-272-7822
`
`
`
`RECORD OF ORAL HEARING
`
`CBM2015-00071, Paper No. 34
`June 17, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`- - - - - - -
`
`UNITED STATES PATENT TRIAL AND APPEAL BOARD
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`- - - - - - -
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`GOOGLE, INC.,
`
`Petitioner,
`
`v.
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`BETTER FOOD CHOICES, LLC,
`
`Patent Owner.
`
`- - - - - - -
`
`Case CBM2015-00071
`
`Patent 5,841,115
`
`- - - - - - -
`
`Oral Hearing held on: Thursday, May 19, 2016
`
`Before: MICHAEL P. TIERNEY, GLENN J. PERRY, and
`MINN CHUNG, Administrative Patent Judges
`
`The above-entitled matter came on for hearing on Thursday, May
`19, 2016, at 1:03 p.m., Hearing Room B, taken at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`Reported by: Carla L. Andrews
`
`
`
`APPEARANCES:
`
`On behalf of the Petitioner:
`
`RYAN J. McBRAYER, ESQ.
`JONATHAN PUTMAN, ESQ.
`Perkins Coie
`1201 Third Avenue
`Suite 4900
`Seattle, Washington 98101-3099
`(206) 359-3073
`
`
`
`On behalf of the Patent Owner:
`
`ROBERT HUNTSMAN, ESQ.
`Huntsman Law Group, PLLC
`10400 W. Overland
`Suite 174
`Boise, Idaho 83709
`(208) 860-4379
`
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`Case CBM2015-00071
`Patent 5,841,115
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`P-R-O-C-E-E-D-I-N-G-S
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`(1:03 p.m.)
`JUDGE TIERNEY: All right, everyone,
`welcome to the hearing today for CBM 2015- 00071.
`Before I begin today, do we have any
`procedural questions before I begin? I believe each side
`had 45 minutes today, and they can reserve time for
`rebuttal. I would like to know if there are any procedural
`questions we need out of way before we start the hearing?
`MR. McBRAYER: Your Honor, Ryan
`McBrayer for Petitioner Google. One procedural question
`that would help us to have resolved is yesterday Petitioner
`Google filed a consent -- actually, two days ago -- filed a
`consent motion to substitute in a set of new
`demonstratives for trial. And we have those cued up for
`presentation.
`The difference between the previously filed
`demonstratives and these are that these addressed a
`Federal Circuit court case that was decided just two days
`ago that impacts the outcome of this proceeding.
`So we want to verify that our motion is
`granted so that we can present the updated demonstratives.
`The parties have stipulated that Google can, but we
`wanted to confirm that with the Board.
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`JUDGE TIERNEY: Judge Chung, do you have
`any objection?
`JUDGE CHUNG: No objection.
`JUDGE TIERNEY: Judge Perry, do you have
`any objection?
`JUDGE PERRY: No.
`JUDGE TIERNEY: Motion granted.
`Are there any other procedural issues?
`MR. McBRAYER: Not from petitioner, Your
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`Honor.
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`MR. HUNTSMAN: I just wanted to confirm
`with the Board I have asked Mr. Shepley, who is the
`inventor, to assist me at counsel table. And we discussed
`this with someone on the phone earlier. But I just wanted
`to make sure it is appropriate for him assisting me at the
`table today.
`JUDGE TIERNEY: I have no objection. Judge
`
`Perry?
`
`JUDGE PERRY: No problem.
`JUDGE TIERNEY: Judge Chung?
`JUDGE CHUNG: No objection.
`JUDGE TIERNEY: No objections today.
`I believe that -- one last time. Any further
`procedural issues? All right.
`We will begin with the petitioner.
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`And you have 45 minutes and reserve time for
`rebuttal. If you feel like you need additional time, let us
`know. The same goes for the patent owner. I will not cut
`you off mid- sentence. But just let us know if you need
`additional time. We realize that we have quite a bit to
`cover. But we will start with the 45-minute mark.
`Would you like to reserve any time for
`
`rebuttal?
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`MR. McBRAYER: Yes, Your Honor. We will
`be reserving time for rebuttal. And we hope not to take
`up our full 45 minutes at all today.
`JUDGE TIERNEY: Okay.
`MR. McBRAYER: With leave of the Board, I
`will let my co- counsel warn me. We hope to end this
`initial presentation after about 15 minutes, depending
`upon the Board's questions.
`JUDGE TIERNEY: Okay. Begin when you
`
`are ready.
`
`MR. McBRAYER: May it please the Board, I
`am Ryan McBrayer representing Petitioner Google.
`And with me here today are my co-counsel
`John Putman also of Perkins Coie. And from Google,
`Victor Shu, sitting in the back row to Your Honor's left.
`The Board should decide in Google's favor
`today and can decide in Google's favor based solely on
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`admissions that are in the patent and admissions that have
`been made during the briefing process by the patent
`owner. There are, to be sure, additional facts and
`arguments that have been presented in briefing that
`encourage the Board to find in Google's favor.
`But we wanted to make it clear at the outset
`that the most important thing the Board can take away
`from today's hearing is that it need look no further than
`the patent itself and the patent owner's own words and the
`admissions from those two and can find purely based in
`Google's favor.
`Today we will be presenting based upon this
`outline, which describes Google's burdens on the left- hand
`column. They can be separated into three categories: Our
`burden to show standing and the subcomponents thereof;
`our burden related to Section 101; and, lastly, our burden
`related to our Section 112 arguments.
`And this slide illustrates for convenience for
`the Board where our specific arguments related to each
`have been made in the record. And as we go along,
`Google's additional arguments have pin cites to the
`specific places in the record where we have made the
`arguments that we will be presenting today.
`First, standing. Google has been sued for
`infringement. And that was shown in the pleading as
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`depicted here. We don't believe this is disputed. The first
`prong of substantive standing is that the patent relate s to a
`financial product or service. The Board found so in its
`initial decision -- its initial determination instituting the
`proceeding. But to be sure, the '115 patent relates to
`someone shopping in the grocery store and making a
`decision whether to or making decisions about food they
`have purchased.
`That qualifies under the Board's decisions as a
`financial service or product as of the date we filed the
`petition. But also important are the three decisions shown
`at the bottom of this page from the Board that have been
`decided since the briefing on this matter was completed,
`the Board has only reaffirmed, in fact, on several
`occasions the transactions like the one described in the
`'115 patent are, indeed, a financial product or service.
`Most significantly at the bottom, the Apple
`case found that a consumer-related transaction for food in
`a restaurant qualifies as a financial product or service.
`Also important here -- and this is the first of the areas
`where we will see this -- is that the patent owner has made
`no arguments at any point during the briefing process on
`these matters.
`As the Board -- once we get to the second
`prong of CBM standing, the patent owner didn't identify
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`any technological invention or even argue that there was a
`technological problem being solved with technology here.
`So as an initial matter for the second prong of standing,
`we feel that the patent owner has admitted it by the lack
`of argument along the way.
`But even substantively as we will get to
`discussing later with Alice prong two, there is nothing in
`these claims that is directed to solving a technical
`problem. Choosing food in the supermarket and making a
`shopping decision is not a technological problem. And we
`believe that the Board properly found so in its Institution
`decision and should do so again here. That's standing.
`Now, moving on to 101, as an initial matter, I
`want to black out my slides and speak to the Board about
`the decision framework that we believe is appropriate
`here. There are two sets of claims -- I mean,
`fundamentally two sets of claims at issue. There are the
`method claims 11 through 20; and there are the apparatus
`claims 1 through 10.
`There are really two families in that set of
`apparatus claims. But for purposes of your 101 analysis,
`Your Honors can look at those claims as being in two sets
`-- the method claims and the system claims. And just like
`the Supreme Court did in Bilski and Alice and just like
`the Federal Circuit has done now countless times since
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`then, the appropriate framework and approach for these is
`to look first to the method claims and to analyze them as
`being abstract and, as we will contend later, unpatentable.
`We will look first to the method claims. Then
`look to the system claims and determine whether the
`system claims are similarly abstract based upon what they
`add or fail to add over the method claims.
`That's an appropriate decision framework.
`And it is, as you will see, going to result in
`the unpatentability of all claims. First, I am going to start
`out with the method claims. And it is important to note
`the patent owner has conceded the unpatentability of the
`method claims.
`The Board in its Institution decision reminded
`the patent owner of the rules here at the Patent Trial and
`Appeal Board that any arguments not made in the patent
`owner's response are waived. And the patent owner in its
`response made no arguments whatsoever about the
`patentability under Section 101 of the method Claims 11
`through 20.
`I will discuss those substantively here in a
`moment, because even had the patent owner made a
`response or if the Board wants to read its response in a
`friendly manner and find an argument in there about the
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`method claims, the method claims are still unpatentable on
`their merits.
`Moving on. The first thing I want to talk
`about with respect to the abstract nature of these claims is
`that they can be performed, particularly the method
`claims, with a pencil and paper. And we noted this in our
`opening brief.
`We cited to the Cyber Source case from the
`federal court that introduced in the post-Alice world the
`pencil and paper test. But the pencil and paper test is a
`test for abstractness that if the claimed method can be
`performed in the human mind or with pencil and paper,
`then it is deemed abstract.
`I am going to come back to the method claim
`here in a moment. But the Board has routinely relied on
`the pencil and paper test for abstractness. These are three
`cases that have been decided just since briefing was
`completed by the Board that have used the pencil and
`paper test to decide that the claims are abstract.
`Of course, we cited additional cases in our
`briefing, including the Cyber Source case from the Federal
`Circuit. But since briefing has concluded in this matter,
`the Board has noted on three different occasions that
`claims are abstract using the pencil and paper test.
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`And if you turn to Claim 11 here, the pencil
`and paper test is really an appropriate way to judge the
`abstractness of the claims. And as we go through these, I
`would ask the Board and invite your attention to the
`concept of walking through the grocery store with a
`grocery list in your hand written out on pencil and paper.
`You know, it could be, for instance, Judge
`Perry's grocery list written on top. And as you walk
`through the store -- I am going to use that example, if I
`may. You know, the first step of the method is inputting
`personal data related to an individual. Well, by walking
`into the store with that piece of paper, that has been
`accomplished with pencil and paper.
`The next step, selecting or specifying at least
`one food, which you are considering purchasing, of
`course, can be done by pulling the product off the shelf
`and/or writing its name on a writing, the item on a list
`before you walk into the store. The latter Step C in this
`method, correlating the personal data with your pre-stored
`nutritional data, is done in the human mind.
`You know, looking at the nutrition label, as
`we illustrated in our brief, is something that shoppers
`have been doing since at least the 1970's, if not out of
`common sense before then.
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`And then the final step, outputting information
`pertinent to that, at least one food product on the list can
`be accomplished with a check or by crossing off the item
`on your grocery lest. Claim 11 really is a classic example
`of abstractness under the pencil and paper test.
`And then if the Board, as it should, moves on
`to the system claims or the apparatus claims here, the
`highlighted parts in the right-hand column are the only
`limitations that they add on top of that abstract method
`claim.
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`They turn the method claim, as was popular
`back in the '90s -- a popular form of claim drafting -- was
`to turn a method step into a means for completing the
`method. And that adds hardware limitations and, in some
`instances, software limitations.
`But as the Board can see, there is nothing
`there beyond the simple accomplishment of the method by
`some unnamed means or by a specific means- plus- function
`limitation.
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`So these two are abstract -- the apparatus
`claims -- especially if the Board uses the decision
`framework that we suggested, which is to start with a
`method claim and see it as abstract, as it should, and then
`turn to the system claims.
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`The patentee's argument against the
`abstractness of -- I am going to black out for a moment.
`The patentee's argument against the abstractness of these
`claims is that they have hardware limitations. According
`to the patentee's response, the claims require a bar code
`reader at least in the hardware limitation -- the hardware
`apparatus claims.
`And because of that, the Board should not
`define the abstract concept as it did in its initial
`Institution decision that when the Board defines the
`abstract concept here or defines the concept behind the
`claim that the claims are directed to and then tests
`whether that concept is abstract, the patent owner objected
`to the process that the Board used and to the concept that
`it chose, which is providing shoppers personalized
`nutritional information.
`And the patent owner suggested that that
`abstract concept, whatever the statement of it, must
`include the words bar code reader because the claims are
`directed at a bar code reader. At a high level, the
`patentee is telling the Board that should there be a
`hardware limitation in the claim that that hardware
`limitation must be recited in the abstract concept. And
`that's simply not the case.
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`Here are four decisions that the Board has
`made since briefing was completed in this case. And we
`show on the left- hand column the name of the decision.
`In the middle column are the technical
`limitations that were recited in the claims that were
`invalidated. There were specific hardware and software
`limitations in the claims in all of these decisions. And in
`the right- hand column is the abstract concept that the
`Board derived from the claims. It said the claims were
`directed to an abstract concept.
`And as the Board can see, none of those
`abstract concepts contain the specific hardware limitations
`that were required.
`JUDGE TIERNEY: Counsel, I note you
`repeatedly cited two Board cases. Are any of these
`precedential?
`MR. McBRAYER: Your Honor, none of these
`are precedential.
`JUDGE TIERNEY: Don't we have
`precedential Supreme Court cases that would address this?
`MR. McBRAYER: Great point. And so let me
`get to that. Alice -- if Your Honor recalls in the Alice --
`and that was my next point. Thank your, Your Honor.
`The Alice decision dealt with claims that
`required specific hardware limitations. You recall that
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`Alice -- the claims in Alice required a database and
`software.
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`And, yet, the abstract concept that the
`Supreme Court derived from the claims in Alice was that
`it was directed to financial intermediation. And it did not
`recite the hardware limitations within the boundaries of
`the words that it defined for the abstract concept.
`Neither did the Supreme Court in the Bilski
`case, which also contained limitations like that. And
`within the concept, those hardware limitations did not
`appear.
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`Two weeks ago or early this week -- and we
`will be talking about this later on -- the Federal Circuit
`decided the TLI case just earlier this week. It invalidated
`all claims. And they were claims where the limitations
`among them required a telephone unit and a server. And
`the abstract concept that the Federal Circuit determined
`that those claims were directed to didn't include those
`hardware limitations.
`So our point here, still staying on the subject
`of abstractness and the abstract nature of these claims, is
`that the Board appropriately decided the abstract concept
`here in its Institution decision, which is providing
`personalized nutritional information to shoppers, and that
`the patent owner's argument that the words bar code
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`reader must be included within that abstract concept are
`simply incorrect.
`That argument is inconsistent with the
`Supreme Court's decisions in Alice and Bilski,
`inconsistent with Federal Circuit decision, and
`inconsistent with admittedly the non-precedential practice
`of the Board.
`So all claims here are abstract -- all the
`independent claims, which is what we have discussed so
`far.
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`Moving to the dependant claims. The
`dependent claims don't add anything more other than
`known generic tools to accomplish that abstract concept.
`And we will discuss this more later on. But the TLI case
`decided this week from the Federal Circuit and the Enfish
`case decided last week by the federal court are wonderful
`and very apt examples of how to address the dependent
`claims in this matter.
`Why? Because the Federal Circuit said in
`Enfish that they divided the world post- Alice into areas
`where computer limitations were directed at improving the
`functioning of the computer or hardware limitation, I
`suppose it could be.
`But if you are improving the functioning of
`the computer as was at issue in the previous Federal
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`Circuit DDR case, if you are improving the functioning of
`the computer itself, well, those might be patentable.
`But for the first time the Federal Circuit said
`in Enfish that if the computer or hardware limitations are
`merely being used as a tool to accomplish what humans
`have for a long time before accomplished or could
`accomplish with pencil and paper, if the computer is
`merely a tool, then that's abstract.
`That's exactly what you have here.
`And on Claims 2 and 9, as we show, the output
`means is a CRT monitor. Well, the CRT monitor is
`merely a tool. Where the input data includes height and
`weight and age, well, those are generic data about all
`humans that have been known for all time.
`Claim 4 adds the support housing.
`Claims 5, 6, and 7 add a specific kind of
`support housing.
`For instance, a kiosk or a checkout unit. All
`of those are generic and described in generic manners.
`And then Claims 11 through 16 describe specific output
`data.
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`But the Federal Circuit and the Supreme Court
`in Alice, in particular, have said repeatedly that data in
`one form or another is classically abstract, that a
`computer provides a particular data output is not
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`patentable and it doesn't help a claim survive Alice. That
`is purely the holding of the Alice case.
`Lastly, Claims 18 through 20 flip the output
`and require a specific kind of data input that in some
`claims it requires a specific piece of data and in other
`claims it requires, for instance, that the data be input by a
`bar coder reader or that the data be input by a magnetic
`card. But those are instances, as the TLI case would point
`out, where the hardware is merely being used as a tool.
`So moving on to Alice, Step 2, the claims lack
`an inventive concept. They don't have substantially more
`than the abstract concept to justify patentability.
` As the Board and the Federal Circuit and the
`Supreme Court have said that the claims at Step 2 must
`include additional features, something more. And they
`must be more than well understood, routine, or
`conventional activity, except here -- and this is really
`where it is important.
`When we were talking -- I started out my
`whole argument today saying that the Board could decide
`this based upon admissions by the patent owner. For
`instance, that it didn't contest whether Claims 11 through
`20 were patentable at all under Section 101.
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`Here, I am going to turn to places where the
`patent itself makes admissions that the Board can rely on
`in its decision to find the claims unpatentable.
`And they are under Alice, Step 2, where the
`patent itself says that the added limitations or the added
`elements are nothing more than conventional or generic or
`known technology. The bar code reader that the patent
`owner relies on so heavily is described in the patent as a
`well-known system for data entry. The processor is
`described as, quote, conventional. And it accesses
`certainly well-known personal data.
`The bottom part is a section of the file history
`importantly, to which the patent owner agreed during
`prosecution by amending the claims in response to this --
`this was a rejection by the Patent Office saying that
`nutritional databases in this kind of data were notoriously
`well known. And the patent owner amended the claims in
`response, again, saying that this kind of data or this kind
`of processor is conventional and well known.
`And, lastly, some of the output means that are
`claimed require a CRT monitor, for instance. And these
`are described in the patent only in their generic form.
`There is no improvement to a CRT monitor. There is no
`improvement here with respect to how the CRT monitor
`may function with the computer. There is none of that.
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`Case CBM2015-00071
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`It's just simply a CRT monitor, which has been known
`since the '50s.
`So that's Section 101. As we suggested, we
`encourage the Board to start with a method claim, find
`that it is abstract and demonstrates under Alice, Step 2,
`nothing more than an abstract concept that can be
`accomplished with a pencil and paper and to then move on
`to the system claims and find that they, too, are abstract
`because they are directed at the same abstract concept,
`that the abstract concept itself need not include the words
`bar code reader, and that the bar code reader and other
`hardware limitations are more properly assessed under
`Step 2, except those that are described only in generic
`form.
`
`So to wrap it up, admissions of the patent
`owner and the patent itself are enough for the Board to
`find these claims unpatentable under Section 101.
`Lastly, our argument that claims 1 through 10,
`the apparatus claims, are invalid for lack of an algorithm.
`Our burden is to show, first of all, that the claim
`limitation at issue is governed by Section 112, paragraph
`6, and later if there is corresponding structure. Well,
`obviously the process or means under the control of a
`pre-stored computer program for accomplishing a long
`function is a means-plus-function claim term.
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`Case CBM2015-00071
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`And as the Board knows, that triggers a
`rebuttable presumption. And, here, the presumption
`sticks. And the Board found properly in its Institution
`decision and should find again that this is a
`means-plus- function claim term.
`The patent owner's only response to that is
`that the use of the word means was an unfortunate
`syntactic error. That's not an exception to the rule. It is
`not exception in the law for use of the word means
`creating a rebuttable presumption.
`And it didn't address whether the presumption
`could be rebutted in any of the ways recognized by
`relevant case law from the Federal Circuit or, for that
`matter, the Patent Office's rules.
`So as a threshold matter, the patent owner has
`offered no real response that the claim isn't governed by
`112, paragraph 6. It is.
`JUDGE TIERNEY: Counsel, is there any
`difference between processor and a processor means?
`MR. PERRY: In this patent, there is in that
`obviously the use of the word means triggers the
`rebuttable presumption. And with that, it contains a
`function right after that. And the function is one that a
`processor itself doesn't accomplish.
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`Case CBM2015-00071
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`There are some cases, Your Honor, where
`"processor means," that term, has been required. And the
`subsequent function is one where, for instance, the In Re
`Katz case from the Federal Circuit, processor means for
`processing or processor means for calculating.
`If what follows in the function is an inherent
`and basic functionality of a generic processor itself, the
`Federal Circuit has held on some occasions that that isn't
`governed by 112, paragraph 6. However, that exception
`has been recognized by the Federal Circuit in the Katz
`case as being, quote, a narrow, unquote exception.
`And, here, we are different, because the
`function after this correlating personal data with
`pre-stored nutritional data is not a function of any of the
`-- for instance, they disclosed a Motorola 60 Series
`processor from the day. And that wasn't a basic
`functionality correlating pre-stored nutritional data with
`personal information. This is very different from a claim
`that might say a processor means for processing.
`JUDGE PERRY: Thank you.
`MR. McBRAYER: Then the second step
`is, of course, to find corresponding structure.
`And here there just is no corresponding structure.
`The claim, because of its function, requires an
`algorithm for the processor. And as a matter of fact, the
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`patent at Column 3, I believe -- I can get a specific
`citation if I can have my hard copy here in a moment --
`but the patent itself expressly says that an algorithm is
`needed to accomplish this function, except then it never
`discloses an algorithm.
`So the specific citation for that for the Board
`is at -- I was wrong about Column 3. It is at Column 6,
`lines 25 through 29, where the patent says that the
`processor correlates the personal data input by the
`individual with the pre-stored nutritional data pursuant to
`a pre-stored computer program.
`And, yet, that's as far as the patent gets. It
`reveals the existence and the requirement for a pre-stored
`computer program but never then discusses the algorithm.
`So Claims 1 through 10 are -- it should be and are invalid
`under Section 112, paragraph 6.
`The patent owner's only response to this is to
`offer testimony from Mr. Shepley. But this testimony,
`according to Federal Circuit precedent, should be
`irrelevant to the 112, paragraph six, analysis.
`The question is not whether a person of
`ordinary skill in the art could have done this of their own
`skill set. The question is not whether a person of ordinary
`skill in the art could have read the patent and figured it
`out. The test is whether it is within the four corners --
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`excuse me, Judge Chung if I just hit the microphone -- is
`within the four corners of the patent. And that just simply
`isn't here yet.
`Lastly, we have some slides here that will be
`of record in case the constitutionality of CBM review
`comes up. In some of our earlier calls, the patent owner
`had suggested that there might be a due process concern.
`We have provided some of the research to make it easy for
`the Board, if those issues come up.
`I wanted to move on before I conclude and
`really invite the Board's attention to the TLI case. If the
`Board hasn't read it yet, please do so. It could not be
`more perfectly matched for the facts of this case, because
`the TLI court recognized the tool language that was used
`in Enfish and pointed out that if a computer program or
`hardware is used merely as a tool, then that's not going to
`save a claim from abstractness or unpatentability.
`And at the top what we have done in these
`slides is show how the TLI case addressed the disclosure
`in the patent. It said that the telephone was described in a
`generic manner. And, first of all, it looked to the problem
`that was being addressed. And the admission in the patent
`there was that the problem being addressed was this
`process.
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`The problem addressed was not the
`functioning of the telephone or the functioning of the
`server. It was the overall process. And the same thing is
`true here. The '115 patent admits that the intention or
`thrust of the invention is to provide personalized nutrition
`information. It is not to improve the functioning of a bar
`code reader or improve the functioning of a computer and
`how it reads a bar code reader.
`I will let the Board, should it need the
`comparison, look to the remainder of our slides. But the
`TLI decision really hits the nail on the head with respect
`to computer software and hardware being used as a tool.
`JUDGE TIERNEY: Isn't that just
`representative in numerous cases the Federal Circuit has?
`I mean, look at the Bancorp case for
`computers used only for its basic function -- performance
`of repetitive calculations.
`MR. McBRAYER: That's true, Your
`Honor. And we describe many of the previous
`Federal Circuit cases.
`The reason to us that Enfish and now TLI are
`significant is that last year there were a lot of cases
`around the country that were held where patents were held
`invalid under Section 101. And there was a big break as
`those made their way to the Federal Circuit.
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`And the Federal Circuit hasn't decided a lot of
`101 cases for the last year. And they have decided some,
`but certainly not the hundreds and hundreds that are
`building up on their docket. And they took their time.
`And
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