I listened to the oral arguments twice and here's my take.
The female judge wanted clarification as to what Strikeforce argues is the difference now as to what was decided in the lower court. I thought Strikeforce's lawyer did a good job clarifying that the authentication channel is novel and an improvement to the prior art (and that it had survived numerous 103 challenges through the IPRs - that it had to be held true). I especially liked when the lawyer brought up "aunt Sally's twin - Bertha" not having authorized access (that analogy wasn't contested by the judges) and that that it is an improvement of prior art and that it has to be held true (due to the cases he referred to).
This was the most important part in my opinion:
SA's lawyer couldn't argue against the male judge saying that secure mail and Asgari Comradi (sp?) (starting at 18:20) wasn't precedent. The lawyer said it was "persuasive" - that's when the judge dug into his argument saying it wasn't precedent (rule 36 affirment) - and the judge saying "I never heard of disposition of rule 36 ever being persuasive" (to the point of feeling awkward) and the lawyer saying "I'll leave it up to you to decide how persuasive you think it is." The judge already said he never heard of it being persuasive. What SA's lawyer thought was his strongest point was strongly questioned by the male judge. After that, SA's lawyer was stammering and he continued for several minutes with the same argument (that the judge already said he never heard of it being persuasive). It didn't sound good...or persuasive. That whole argument fell apart right then and there. Then the female judge said he was presenting arguments (20:26) under 102 or 103 and not 101. All he could say is "I disagree." She then reminds him that Strikeforce's lawyer has said that "technology specific details sufficiently have been provided." The lawyer even argues against himself by saying "the word 'hacking' is a computer-specific term" all the time arguing that Strikeforce's techlology isn't computer-specific (even though it prevents hacking). He later goes on to say that in Strikeforce's technology "hacking" is not computer-specific. The female judge then says "I'm trying to get at the substance that you're talking about computers and hacking computer communications - I'm trying to understand the gap between 101 and 103." I loved it when she said "You can't mean that - you say even if we all agree this is a computer issue or problem, don't bother looking at computer issues and solutions....the solution is implemented by computer." All the lawyer could say is "I don't deny it could be useful." At one point the male judge even says SA's lawyer was wrong.
SA's lawyer sounded convoluted and made a lot of mistakes in his argument.
It sounded like SA's lawyer didn't do his research/homework.
I don't think it's "slam dunk" for Strikeforce since we don't know what the judges are actually thinking (especially about the male judge's bank note analogy at the end) but I think Strikeforce came out ahead in the oral arguments. I think the case will be remanded to the lower court as the worst case scenario.
The female judge wanted clarification as to what Strikeforce argues is the difference now as to what was decided in the lower court. I thought Strikeforce's lawyer did a good job clarifying that the authentication channel is novel and an improvement to the prior art (and that it had survived numerous 103 challenges through the IPRs - that it had to be held true). I especially liked when the lawyer brought up "aunt Sally's twin - Bertha" not having authorized access (that analogy wasn't contested by the judges) and that that it is an improvement of prior art and that it has to be held true (due to the cases he referred to).
This was the most important part in my opinion:
SA's lawyer couldn't argue against the male judge saying that secure mail and Asgari Comradi (sp?) (starting at 18:20) wasn't precedent. The lawyer said it was "persuasive" - that's when the judge dug into his argument saying it wasn't precedent (rule 36 affirment) - and the judge saying "I never heard of disposition of rule 36 ever being persuasive" (to the point of feeling awkward) and the lawyer saying "I'll leave it up to you to decide how persuasive you think it is." The judge already said he never heard of it being persuasive. What SA's lawyer thought was his strongest point was strongly questioned by the male judge. After that, SA's lawyer was stammering and he continued for several minutes with the same argument (that the judge already said he never heard of it being persuasive). It didn't sound good...or persuasive. That whole argument fell apart right then and there. Then the female judge said he was presenting arguments (20:26) under 102 or 103 and not 101. All he could say is "I disagree." She then reminds him that Strikeforce's lawyer has said that "technology specific details sufficiently have been provided." The lawyer even argues against himself by saying "the word 'hacking' is a computer-specific term" all the time arguing that Strikeforce's techlology isn't computer-specific (even though it prevents hacking). He later goes on to say that in Strikeforce's technology "hacking" is not computer-specific. The female judge then says "I'm trying to get at the substance that you're talking about computers and hacking computer communications - I'm trying to understand the gap between 101 and 103." I loved it when she said "You can't mean that - you say even if we all agree this is a computer issue or problem, don't bother looking at computer issues and solutions....the solution is implemented by computer." All the lawyer could say is "I don't deny it could be useful." At one point the male judge even says SA's lawyer was wrong.
SA's lawyer sounded convoluted and made a lot of mistakes in his argument.
It sounded like SA's lawyer didn't do his research/homework.
I don't think it's "slam dunk" for Strikeforce since we don't know what the judges are actually thinking (especially about the male judge's bank note analogy at the end) but I think Strikeforce came out ahead in the oral arguments. I think the case will be remanded to the lower court as the worst case scenario.
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