`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SUPERCELL OY,
`Petitioner,
`
`v.
`
`GREE, LLC,
`Patent Owner.
`____________
`
`Case PGR2018-00055
`Patent 9,687,744 B2
`____________
`
`Record of Oral Hearing
`Held: June 27, 2019
`____________
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`
`
`
`Before LYNNE H. BROWNE, HYUN J. JUNG, and
`CARL M. DeFRANCO, Administrative Patent Judges.
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`Case PGR2018-00055
`Patent 9,687,744 B2
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`MICHAEL J. SACKSTEDER, ESQUIRE
`JENNIFER R. BUSH, ESQUIRE
`Fenwick & West, LLP
`801 California Street
`Mountain View
`California 94041
`msacksteder@fenwick.com
`jbush-ptab@fenwick.com
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JOHN C. ALEMANNI, ESQUIRE
`ANDREW RINEHART, ESQUIRE
`ARNEITA F. GRAY
`Kilpatrick Townsend & Stockton, LLP
`4208 Six Forks Road, Suite 1400
`Raleigh, North Carolina 27609
`919-420-1724
`jalemanni@kilpatricktownsend.com
`arinehart@kilpatricktownsend.com
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`
`
`
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`The above-entitled matter came on for hearing on Thursday, June 27,
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`2019, commencing at 9:59 a.m., at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
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`P R O C E E D I N G S
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`JUDGE JUNG: Good morning. Please be seated. All right; this is
`the Oral Hearing for PGR 2018-00055.
`In this proceeding Petitioner, Supercell, challenges claims of U.S.
`Patent Number 9,687,744, owned by Gree.
`Starting with the Counsel for Petitioner, and then followed by Counsel
`for Patent Owner, please state your names for the record.
`MR. SACKSTEDER: Good morning, Your Honors. Michael
`Sacksteder of Fenwick & West, on behalf of Supercell Oy, and with me is --
`I'm backup Counsel, and with me is lead Counsel Jennifer Bush.
`JUDGE JUNG: Thank you. Welcome.
`MR. ALEMANNI: Good morning, Your Honors. I'm John
`Alemanni, with Kilpatrick Townsend -- excuse me -- here on behalf of
`Patent Owner, Gree. With me at the table is backup Counsel Andrew
`Rinehart; and also assisting today with the demonstratives is Nita Gray.
`JUDGE JUNG: Okay. Thank you, and welcome. Each party has one
`hour of total time to present its arguments. Petitioner will proceed first.
`Each party may reserve time for rebuttal. Please refer to demonstratives by
`slide numbers, and please do not interrupt the presentation to object. If you
`have an objection, just raise that issue at the end of the presentation.
`That said, Mr. Sacksteder, you can proceed when you're ready.
`MR. SACKSTEDER: Thank you, Your Honor. So, the patent in this
`case aims to provide motivation for a new user or a new player of a
`massively multiplayer online role-playing game to play by making it
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`possible for that player to play in a group with what the Patent Owner's
`expert calls the Cool Kids.
`JUDGE JUNG: Hold on, Mr. Sacksteder. Did you want to reserve
`time for rebuttal?
`MR. SACKSTEDER: Oh, I beg your pardon. Yeah, I will reserve 15
`minutes, please.
`JUDGE JUNG: Fifteen; okay.
`MR. SACKSTEDER: And the way that the patent accomplishes that
`social goal, is through a subtraction and then doing something in accordance
`with that subtraction although the claims -- of the original claims at least, are
`not clear what exactly is done.
`Slide 3, please. The claims are directed to the abstract idea of
`controlling an effective attack in a game according to a difference in
`parameter value between two characters and to a number of attacks within a
`predetermined time.
`Slide 4: The claim is brief. The blue portion of the claim is the
`abstract idea. It basically just says, you control somehow an effect of an
`attack by a group, according to a difference in parameter values between two
`characters, and to a number of attacks within a predetermined time. That's
`it.
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`Slide 5: The claims are directed to an abstract idea for several reasons,
`prong 1 of step 2A of the guidance. First, they recite only result-oriented
`functions without a non-abstract means of achieving those results, I
`recognize that that is not specifically a category in the guidance but we
`believe that under Federal Circuit precedent it is still a basis for finding
`claims directed to an abstract idea.
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`The other two are that the claims recite a mathematical concept, and
`that they recite a method of managing a game.
`And then we'll go to prong two. These claims provide no
`improvement in computer functionality. They recite no improvement in
`graphical user interfaces.
`If you could go to slide 57, please -- which may be a record for the
`longest leap in slides -- there had been an argument that you can't have more
`than one. That is not true. This, it can be both a method of organizing
`human activity the rules of the game, and a mathematical concept.
`MPEP says that the associations are not mutually exclusive, some
`concepts may be associated with more than one judicial descriptor, Alice
`itself, and Bilski, looked at more than one category of abstract idea into
`which the abstract idea of the claims could fall.
`JUDGE JUNG: Mr. Sacksteder?
`MR. SACKSTEDER: Yeah.
`JUDGE JUNG: If you have to pick one, which one do you think is
`the stronger -- the stronger argument for the abstract idea?
`MR. SACKSTEDER: I think method of organizing human activity.
`It's simply the rules of the game.
`JUDGE JUNG: Okay.
`MR. SACKSTEDER: You know, it's just a way of playing a game to
`make somebody want to play it, and that's all. Now, it does that with a
`subtraction, so it's both, but if there's one that you would take home with
`you, I would say it was the method of organizing human activity.
`Slide 6, please: Again, back to the claim, and Figure 6 shows what
`happens in the claims if you have successive attacks, that's one requirement,
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`then you calculate a difference in parameter, you make a subtraction, and
`then you do the presentation processing which basically says you get a
`stronger attack under these circumstances where there's a difference
`according to. It doesn’t again say how exactly, but according to the
`difference in the parameters, and to a number of attacks within a
`predetermined time end.
`Slide 7: These are only result-oriented functions. I'm not going to go
`into detail on TLI, and Two-Way Media, and Affinity Labs, unless the Board
`wants to. But, you know, these are simply functional results that are
`accomplished without any way of -- or are recited without reciting any way
`of accomplishing.
`Slide 8: There are no detailed rules or steps to explain how the
`claimed functions are performed. There are no limitations as to how the
`parameters are calculated, or how the difference in parameter or number of
`attacks impacts or controls the effect of the attack.
`There's no indication how the difference and number of attacks may
`interact, again, in their control of the effect. It just doesn’t say in the claims,
`and when we talk about the amended claims, it doesn’t say in the
`specification either what you do in order to actually control the effect of the
`attack, it just says you get a difference when something happens.
`Slide 9: Again, simply a conventional computer system for
`performing this. You have a process or communication interface storage,
`you store a program that has a presentation process, a module which I think
`shows what you see on the screen somehow, although that isn't really clear,
`and then there's a parameter that you use for the subtraction. Slide 10 --
`JUDGE DeFRANCO: Mr. Sacksteder?
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`MR. SACKSTEDER: Yes.
`JUDGE DeFRANCO: What is a parameter? I mean that seems to be
`critical limitation, and you're calculating the difference in the parameter or
`according to a “difference in the parameter” as it's used in the claim. So,
`you said something about the parties construed that term?
`MR. SACKSTEDER: I believe we offered a construction. I may be
`misremembering, and I believe that the Board determined that it was not
`necessary. I can check that out if it would be helpful.
`JUDGE DeFRANCO: Yes. I understand we may have said that at a
`preliminary stage, but now we're at a final decision stage, where it may be
`necessary to do that.
`MR. SACKSTEDER: Of course, of course.
`JUDGE DeFRANCO: So, I'm just wondering; what are your thoughts
`on that construction?
`MR. SACKSTEDER: Well, again, I don't that there's a lot of clarity
`in the specification, and I am looking through the claim construction section
`of our petition, and this was under a broadest reasonable interpretation,
`appears to be, we said in our petition, a variable that serves as an indicator
`for developing the battle game, and which may include or indicate any of
`proficiency, reward acquisition, recoverability, or elapsed time from the
`beginning of participation.
`So, those are the things that are mentioned in the specification
`specifically, it is some kind -- and it's also called a variable in the
`specification, and so the idea is, it's some sort of a variable that each
`character that belongs to a player, each character belongs to a separate
`player, apparently, has an attribute and they're subtracted in the claim.
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`JUDGE DeFRANCO: So is it a characteristic or trait of the particular
`character? Or is it some sort of numerical value, so it's calculated
`differently. How do you calculate the difference as a trait?
`MR. SACKSTEDER: I think -- and again, I don't think the
`specification is particularly clear about that, it is referred to as a variable so,
`you know, one interpretation of that would that it is some sort of a numerical
`value that is assigned to that trait, or in some cases how long you’ve been
`playing the game. And it's capable of when two are compared presumably
`by subtraction it's capable of generating a difference. So, I think it's
`probably a numerical value, I don't know that the specification is crystal
`clear on that, but it refers to it as a variable.
`JUDGE DeFRANCO: Okay. Well, we'll hear from Patent Owner on
`that as well. So, thank you.
`MR. SACKSTEDER: Yes. So, again there are two things that go into
`this, the difference, one is the difference in the parameters, whatever those
`are, between two characters who are going to attack successively, and the
`second is a number of attacks within a predetermined time by any characters
`in the group. That wasn’t entirely clear to us, either we think it means how
`long you have been playing the game, basically, but there are, potentially,
`alternative interpretations of that as well.
`Slide 11, please. The plaintiff's expert says that the claim talks about
`the difference Patent Owner actually refers to the calculation as a
`mathematical function. Slide 12 --
`JUDGE BROWNE: Mr. Sacksteder, before you go on. Can you
`think of a way that you could express this as a mathematical calculation?
`MR. SACKSTEDER: Based on the specification?
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`JUDGE BROWNE: Well, or just the claim.
`MR. SACKSTEDER: I think there are some references in the
`specification to P delta 1, you know, and so you have the delta between
`parameter one and parameter one, you know, the first player and the second
`player. You know, there is a difference between those, so it's a parameter of
`player one, minus parameter of player two perhaps, would be one way to, I
`think, implement what the claims appear to be talking about, and what the
`specification -- to the extent it discloses it, what the specification discloses.
`So, in addition to being a mathematical concept , the claims are also
`just a method of conducting a game, these are just parts of the rules of the
`game, what the Patent Owner's expert calls the mechanics which includes
`the rules of the game. Those are -- according to the guidance -- fall into a
`method of organizing human activity, citing the Smith case.
`Slide 13: Other cases which we've discussed in other of these post-
`grant reviews. In re Smith, which relates to a method of managing a
`wagering game, using a deck of cards, Planet Bingo, which is a method of
`saving your bingo numbers so that you can then replay them. And In re
`Guldenaar method of playing a dice game. Those are concepts that have
`been found repeatedly by the Federal Circuit to be abstract ideas, and to be
`non-patent-eligible abstract ideas.
`Slide 14: Again, the rules of the game, the part in blue is just the rules,
`there's no other way to put it, you know, there's nothing technical about
`them, it just says you have a couple of -- you come up with a difference and
`you sub them to change the effect of an attack in the game. That is all.
`Slide 15: Patent Owner admits that this is directed to a modification
`with known rule for battle games where you a combo, where you attack with
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`multiple characters belonging to multiple players, and that is something that
`is admitted in the specification, is admitted by Patent Owner to be something
`that was already done in the prior art.
`Slide 16: All right, prong two relates to whether there is a practical
`application of the exception, and the question here is whether the additional
`elements, beyond sort of the abstract idea reflect an improvement in the
`functioning of a computer or an improvement to other technology or
`technical field.
`Slide 22, actually. This is not a technical solution to a technical
`problem at all, this is testimony from the Patent Owner's expert who was
`talking about Mr. Crane who is talking about sort of the motivation, if you
`look at the specification, it talks about providing motivation for a player who
`is new to be -- to play, because good players don't want to play with new
`players on a team because they just aren't -- you know, they aren't good
`enough to help the team.
`And so this provides something like a handicap in golf that makes it
`so that the playing field is leveler for somebody who is new. And he
`referred to a barrier problem. Mr. Crane referred to a barrier problem, and
`he was asked in deposition, well, you know, here's this barrier problem in his
`declaration, he said, "There are barriers in these social games to newbies,
`they don't get to be invited by the cool kids. They don't get invited to guilds
`with more experienced players."
`In the Institution Decision the Board says that's a social problem, or
`words to that effect, it's not a technical problem, and we completely agree.
`There's nothing here that improves the functioning of a computer, it just
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`changes the rules of the game to make it so that the newbies can play with
`the cool kids.
`Slide 23: Again, combos were well known game mechanic.
`Slide 24: Again, just talking about, this is mostly stuff that was even --
`existed in preexisting games, the only thing that's changing it a little bit, so
`that you have this handicap, and that the newbies can play with the cool
`kids, yeah.
`Twenty-five, please: This is just -- and I'm not going to spend a lot of
`time on it -- it's a chart that sort of shows that there's nothing in the claims
`that recites any kind of improvement in computer functionality with the
`support for that.
`Twenty-six, please: This is not anything like Core Wireless, the
`Trading Technologies, with Data Engines, this is not any kind of an
`improvement in graphical user interface technology, in fact, there is little or
`no discussion of a graphical user interface in the claims, little or no
`discussion in the specification, it's just, here is how you arrange the rules to
`make this particular social issue get addressed.
`Slide 27: Step two of Alice, or step 2B of the guidance. The only
`things that are in the claims beyond the abstract idea, are conventional
`computer equipment, like a server device, a client device, examples in the
`specification of what these could be or, you know, the standard things:
`desktop PC, notebook PC, tablet PC, laptop PC and the mobile phone.
`Slide 28, the things that happen in the claim, the things that these
`standard pieces of equipment do, are things like storing and receiving, and
`then controlling based on some data that is gathered and manipulated as in
`the Electric Power Group.
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`Twenty-nine, please: There's really not anything that you could even
`call an ordered combination in the claims, I mean all it is, is you do
`something according to a difference, I'm not sure there's even a combination
`there to say it's an ordered combination, but anyway, we took out the
`abstract idea, which you're supposed to do, and looked at the rest, and all it
`is, is something that stores. And then something that controls, and that's it,
`that's all undisputed that it is convention.
`Slide 30, please?
`JUDGE DeFRANCO: Mr. Sacksteder?
`MR. SACKSTEDER: Yes.
`JUDGE DeFRANCO: Wouldn't you agree that the controlling steps
`have to happen after the storing step? I mean, it seems like you have to store
`something for each of the particular characters before you can determine an
`effect of the group characters? It seems like an ordered combination to me.
`MR. SACKSTEDER: That is correct, although I don't think it's an
`ordered combination in any unconventional manner, and it is also -- the
`controlling step is the abstract idea, and so you have a step four storing data,
`and then the controlling step is something you do with the stored data, and
`yes you have to have the stored data before you control something according
`to it. But I don't think that's unconventional, and it's part of the abstract idea
`anyway, so really all you have, beyond the abstract idea, is storing which is
`not, I don't think, asserted to be unconventional.
`Slide 30: Use of parameters to determine the result of a battle was
`well understood, routine and conventional according to the expert of the
`Patent Owner.
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`Slide 31: So this is the motivation basis for the invention, not clear
`that that's even captured in the claims as we'll discuss. There are some ways
`that you can perform these claims that probably would not give an advantage
`to somebody who happens to not be a good player.
`Slide 32: It also, as we've discussed, you can't tell what happens to the
`effect of the attack by the group, based on what is recited in the claims, it
`just says, according to, or in accordance with in one of the claims.
`And the expert of the Patent Owner says: as long it's according to,
`can't say whether a larger one has a larger effect, or a smaller one, meaning a
`smaller difference has a smaller effect. There isn't a necessarily recited
`correspondence in that case.
`Slide 33: So this, it's possible also with the time elapsed portion of the
`claim, that that might have nothing to do with how proficient a player is.
`Mr. Crane said there will be players with large time elapse or not very good
`at playing the game. I've been playing golf since I was 14, and I'm an
`example of that. There will be players with smaller amounts of time elapsed
`so it would be good playing the game.
`I suppose it is possible in your hypothetical situation for players to be
`given different recovery abilities that's unrelated to their proficiency, and so
`the claims are -- don't necessarily incorporate this motivation goal that is
`recited in the patent, even if that were some sort of a technical problem,
`which it is not.
`Slide 34: Dependent claims are basically just the same abstract idea.
`Claims 2 and 10 do have some reference to what happens if the difference in
`parameters is large. Claim 6 talks about something -- basically the similar
`concept there, again, does not necessarily capture the purported advance that
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`is supposed to be captured in the claims, and in any event, those are all, still,
`just rules for playing a game. They are methods for organizing human
`activity, and there is no unconventional technical implementation of those.
`Slide 35: The rest of the dependent claims have pretty much the same
`problem. Again, they're all just tweaks to the rules of the game, or
`refinements to the rules of the game do not, again, necessarily capture the
`purported advance.
`Slide 36: Still on the dependent claims, the same arguments for those,
`I don't want to repeat them three times.
`Slide 37: So to the extent that Patent Owner is relying on creating
`some kind of fact issue, based on Mr. Crane's testimony, I think it's worth
`noting that he says, that he doesn’t much, if any, experience with battle
`games, certainly not with developing them.
`Slide 38: He has not published any battle games. He's an expert
`because he -- you know, he came out with a game called Pitfall in the early
`'80s, and has developed other games, none of his games have been battle
`games. Of all the games he's worked on, wouldn't characterize any of those
`games as battle games.
`Slide 39: He has only played two battle games and only for -- one of
`them for a few hours, and one for maybe 10 to 20 hours. So, you know, I
`would look at that in light of Rule 702.
`JUDGE JUNG: Mr. Sacksteder, you would agree that he understands,
`you know, every game has a certain set of rules, and then he, with his
`experience has been able to implement those rules into games, not
`necessarily battle games but he has some experience of implementing some
`sort of rule, in some sort of game?
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`MR. SACKSTEDER: I wouldn't disagree with that. And I think he's
`perfectly capable of reading the specification of the patent, and some of the
`testimony of his that we have relied on is based on his reading of the
`specification of the patent. I wouldn't say that he doesn’t know anything
`about games, he knows very much about games, it just is an area of games
`that he has not specialized in at all, and has barely played.
`JUDGE JUNG: So, we don't have to necessarily, give his testimony
`no weight. Correct?
`MR. SACKSTEDER: It depends on the testimony. If he's talking
`about specific things to battle games, maybe, but yeah, I understand your
`point. He has certainly developed many games, and to the extent that his
`concepts relate to games, we are not saying you should disregard those.
`Slide 44: Okay, I'm just going to talk briefly about Section 112, the
`Board frankly didn’t appear too interested in our -- at least not persuaded by
`our arguments under section 112, but I do think that on the claim limitation
`controlling in effect of an attack accordance to a difference in the parameter
`between two characters, that that is not really disclosed in the patent. And I
`reread it last night and I didn’t really find what you do.
`You find the difference in what do you do. You make some kind of
`an adjustment, in accordance with it, or according to that difference, doesn’t
`at all say how you do that, and to the extent that there's evidence from Mr.
`Crane, saying, well, a person of ordinary skill in the art could figure out
`some way to do it, I'm not sure that that is demonstrative of the possession of
`the invention as is required to be provided by the written description of the
`patent.
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`Slide 49, please. Also we've continued to assert that that limitation is
`indefinite, there is no guidance on, again, how the difference in the
`parameter and the number of attacks, and together contribute to the
`controlling, and it doesn’t say how the factors have to be weighted according
`to both of them, there is just no way for a person of ordinary skill to look at
`that and say how does each factor contribute to controlling the effect of the
`attack, and so a person of ordinary skill wouldn't know whether that person
`is infringing that limitation or not.
`Slide 50: It is not an argument that should succeed for Patent Owner
`to say that, well, it would be within the skill of a person of ordinary skill to
`fill in the gaps. This is a question of knowing where the metes and bounds
`of the claim are, it's not enablement, it's not something where, if you know
`how to do it that's -- you know, if a person of ordinary skill in the art would
`know how to do it, that's enough. And that is something different from
`indefiniteness.
`Slide 51: Let's talk about the motion to amend. There are several
`problems with that. The first is that the motion to amend does not provide
`written description support for each of -- each proposed substitute claim, and
`not just the features added by the amendment, and that's a requirement that is
`set forth in the Western Digital case by the PTAB. Patent Owner in its
`motion to amend referred to the additional limitations that: here is where
`they are disclosed, didn’t say anything, about the rest of the claim which is a
`requirement.
`Slide 52: And then in the reply -- or rather the surreply, Patent Owner
`tried to say, well, here's some additional support, and they gave us
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`paragraphs 5, 8 to 10, 16 to 22 and Figures 4 through 6, that kind of, sort of
`block citing is not sufficient to satisfy this requirement.
`Slide 53: And that's the Cisco Systems decision from the Board, the
`block citations without explanation are insufficient to carry the Patent
`Owner's burden. So, that's one issue with the amendment.
`Slide 54: Another relates to claims 14, 15, 18, 19, 22 and 23, where
`the word "increasing" is replaced by "changing", you know, we're going on
`ordinary meaning here. I don't think anybody has tried to construe the
`claims, and there's not a lot of disclosure to allow that construction anyway,
`but that's broader. You know, changing can mean changing -- you know,
`decreasing as well as increasing. So, that is a broader claim and it is not
`permissible.
`Slide 55: And then, you know, I'm not going to go through this in
`detail, they don't fix the 101 problem with the amendments, they still are
`basically doing the same thing. They provide a little bit more detail, but it's
`still rules for a game. It is still a mathematical calculation and nothing more
`to provide any kind of technical implementation, either for prong 2 or for
`step 2B.
`Slide 56: Again, the same problem, you know, just more evidence of
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`that.
`
`Slide 57, we've already seen, which is the -- you can have both the
`method of organizing human activity and the mathematical concept.
`Slide 59: So, this is what we have in the new claim, and if you look at
`it again, and I probably should have had this at the beginning of this
`discussion, but there's not much more. You know, now you determine a
`difference, you know, you just controlled according to a difference, and now
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`you have to find the difference, and then you control the effect of the attack
`by the group, still rules for controlling a game and nothing more, still, doing
`a subtraction.
`Slide 60: Again, still solving this social problem.
`Slide 64: Still, same problems with written description that we
`discussed before.
`And slide 66, I think is going to say the same problem with, oh,
`actually -- yeah, okay, this is, again, the same problem with the -- with
`112(a). And one other thing, their claims that talk about doing an addition,
`or a multiplication, I reread the patent last night, and didn’t find that
`anywhere in the specification, so there is no disclosure whatsoever that that
`is the additional mathematical operation that is performed.
`And unless the Board has any questions, I will conclude.
`JUDGE JUNG: I have no questions.
`MR. SACKSTEDER: Thank you.
`MR. ALEMANNI: Your Honor, I'll need just a second to hook up.
`JUDGE JUNG: No problem.
`MR. ALEMANNI: Thank you. Your Honors, I'm ready when you
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`are.
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`JUDGE JUNG: How much time do you want to reserve for rebuttal?
`MR. ALEMANNI: I think, like Petitioner has already arranged for, to
`keep this fairly short, so I think it's around 35 minutes, maybe, and then we'll
`just reserve whatever we have left for rebuttal, if that's okay.
`JUDGE JUNG: All right.
`MR. ALEMANNI: Okay, great. Thank you. And again, my name is
`John Alemanni. I intend to address the 101 issues with regard to the original
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`claims, and then I'll turn it over to my colleague Mr. Rinehart to deal with
`the 112 issues, and then I’ll continue the motion to amend.
`JUDGE JUNG: Okay. Thank you, Mr. Alemanni.
`MR. ALEMANNI: All right. Thank you. Let me actually go to
`Petitioner's slide 5 to start with. So, this is a reasonable summary of their
`arguments. The original argument that they made in the petition was that
`basically the entire second element of the independent claims was an
`abstract idea, and then they strip that out, and then analyzed the claim
`without that.
`And the argument is that a functional claim that recites the generic
`hardware is essentially for staying eligible. We know that's wrong, we know
`that by comparing it to the cases from the Federal Circuit, we know by
`looking at the guidance that that's just incorrect; the Patent Office has
`rejected that argument.
`In the reply they pivot, so they talk about the guidance, I think on
`page 4 they reply, and they say, well, we don't agree with the guidance, we
`don't think, that the Court is actually created a categorical rule regarding
`abstract ideas, we think it's either mathematical concept or method of
`managing a game.
`Now they don't set this up in any great detail, particularly with the
`mathematical concept, there's a little bit in the reply about it, but they don't
`cite any cases, they don't describe how the mathematical concept, what that
`would look like. So it's a little difficult to deal with that, but we will. We'll
`show that the claims don't fall in that category, and they also -- I'm sorry?
`JUDGE JUNG: Before you go on?
`MR. ALEMANNI: Yes.
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`JUDGE JUNG: Just to provide a little context. The guidance came
`out when -- before or after the reply was filed?
`MR. ALEMANNI: So, before the reply. If you look at the
`Petitioner's reply on page 4, they cite the guidance to say that they don't
`agree that the Supreme Court or the Federal Circuit has put together any
`categorical rule, and then on page 5 they cite the footnote, that at the very
`bottom of the In re Smith case, there's a really long footnote page -- I forget
`which page of the guidance it is,
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