Case 2:19-cv-01444-GW-KS Document 47 Filed 09/05/19 Page 1 of 14 Page ID #:774
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES - GENERAL
`Case No. CV 19-1444-GW-KSx
`Title
`BlackBerry Limited v. Twitter, Inc.
`
`Date September 5, 2019
`
`Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE
`Javier Gonzalez
`Anne Kielwasser
`Tape No.
`Deputy Clerk
`Court Reporter / Recorder
`Attorneys Present for Plaintiffs:
`Attorneys Present for Defendants:
`James R. Asperger
`Ekwan E. Rhow
`Jordan R. Jaffe
`Nicholas P. Groombridge
`Edward R. McGah, Jr.
`Jenny C. Wu
`Pushkal Mishra
`Grace W. Kang
`Jeffrey W. Nardinelli
`Patrick Schmidt
`Yury Kapgan
`PROCEEDINGS:
`DEFENDANT TWITTER, INC.'S MOTION TO DISMISS PURSUANT
`TO FED. R. CIV. P. 12(B)(6) [39]
`
`The Court’s Tentative Ruling is circulated and attached hereto. Court hears oral argument. For reasons
`stated on the record, Defendant’s Motion is TAKEN UNDER SUBMISSION. Court to issue ruling.
`
`CV-90 (06/04)
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`CIVIL MINUTES - GENERAL
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`Page 1 of 1
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`Initials of Preparer
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`BlackBerry Limited v. Twitter, Inc.; Case No. 2:19-cv-01444-GW-(KSx)
`Tentative Ruling on Motion to Dismiss First Amended Complaint
`
`
`
`I. Background
`
`Plaintiff BlackBerry Limited (“BlackBerry”) filed suit against Twitter, Inc. (“Twitter”) on
`February 27, 2019, alleging infringement of seven patents. Docket No. 1; see also Docket No. 36
`(First Amended Complaint).
`
`Twitter has moved to dismiss all of BlackBerry’s patent infringement claims under 35
`U.S.C. § 101. Docket No. 39-1. Twitter’s motion has been fully briefed. See BlackBerry’s
`Opposition in support of Twitter’s Motion to Dismiss, Docket No. 40; Twitter’s Reply in support
`of its Motion to Dismiss, Docket No. 43.
`For the reasons stated in this Order, the Court would DEFER-IN-PART, DENY-IN-
`PART, and GRANT-IN-PART with leave to amend as further articulated herein.
`II. Legal Standard
`A. Motion to Dismiss (Rule 12(b)(6))
`Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim upon
`which relief can be granted. Fed. R. Civ. P. 12(b)(6). A complaint may be dismissed for failure
`to state a claim for one of two reasons: (1) lack of a cognizable legal theory; or (2) insufficient
`facts under a cognizable legal theory. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see
`also Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008) (“Dismissal
`under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or
`sufficient facts to support a cognizable legal theory.”).
`In deciding a Rule 12(b)(6) motion, a court “may generally consider only allegations
`contained in the pleadings, exhibits attached to the complaint, and matters properly subject to
`judicial notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). The court must construe
`the complaint in the light most favorable to the plaintiff, accept all allegations of material fact as
`true, and draw all reasonable inferences from well-pleaded factual allegations. Gompper v. VISX,
`Inc., 298 F.3d 893, 896 (9th Cir. 2002); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th
`Cir. 2001), amended on denial of reh’g, 275 F.3d 1187 (9th Cir. 2001); Cahill v. Liberty Mutual
`Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). A court is not required to accept as true legal
`conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Where a
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`plaintiff facing a Rule 12(b)(6) motion has pleaded “factual content that allows the court to draw
`the reasonable inference that the defendant is liable for the misconduct alleged,” the motion should
`be denied. Id.; Sylvia Landfield Trust v. City of Los Angeles, 729 F.3d 1189, 1191 (9th Cir. 2013).
`But if “the well-pleaded facts do not permit the court to infer more than the mere possibility of
`misconduct, the complaint has alleged – but it has not show[n] . . . the pleader is entitled to relief.”
`Iqbal, 556 U.S. at 679 (citations omitted).
`B. Patent Eligibility under 35 U.S.C. § 101
`An invention or a discovery is patentable if it is a “new and useful process, machine,
`manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C.
`§ 101. “In choosing such expansive terms . . . Congress plainly contemplated that the patent laws
`would be given wide scope.” Diamond v. Chakrabarty, 447 U.S. 303, 308 (1980). Still, the
`Supreme Court has identified exceptions to this wide scope to distinguish patents that claim the
`building blocks of human ingenuity, which are ineligible for patent protection, from those that
`“integrate the building blocks into something more.” Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573
`U.S. 208, 217 (2014) (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66,
`89 (2012)) (internal quotations omitted). These exceptions to patent protection are “laws of nature,
`natural phenomena, and abstract ideas.” Diamond v. Diehr, 450 U.S. 175, 185 (1981). While the
`boundaries of the judicial exceptions remain subject to further development, the Supreme Court
`has clearly delineated the policy underlying those exceptions: avoiding patents that “too broadly
`preempt the use of a natural law [or abstract idea].” Mayo, 566 U.S. at 73. Thus, patent law should
`“not inhibit further discovery by improperly tying up the future use of laws of nature [or abstract
`ideas].” Id. at 1301.
`In Mayo, the Supreme Court “set forth a framework for distinguishing patents that claim
`laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible
`applications of those concepts.” Alice, 573 U.S. at 217. The first step is to ask “whether the claims
`at issue are directed to one of those patent-ineligible concepts.” Id. If not, the claims fall within
`the scope of § 101 and are patent-eligible. If the claims are directed to one of the exceptions, the
`next step is to search for an “inventive concept” that is “sufficient to ensure that the patent in
`practice amounts to significantly more than a patent upon the natural law itself.” Mayo, 566 U.S.
`at 72-73. In doing so, a court must “consider the elements of each claim both individually and ‘as
`an ordered combination’ to determine whether the additional elements ‘transform the nature of the
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`claim’ into a patent-eligible application.” Alice, 573 U.S. at 217 (quoting Mayo, 566 U.S. at 78-
`79). If, in considering the claim elements individually and as an ordered combination, they merely
`recite well-understood, routine, and conventional steps, they will not constitute an inventive
`concept for patent eligibility purposes. Aatrix Software, Inc. v. Green Shades Software, Inc., 882
`F.3d 1121, 1128 (Fed. Cir. 2018). “Whether the claim elements or the claimed combination are
`well-understood, routine, conventional is a question of fact.” Id.; see also Berkheimer v. HP Inc.,
`881 F.3d 1360, 1368 (Fed. Cir. 2018) (“Like indefiniteness, enablement, or obviousness, whether
`a claim recites patent eligible subject matter is a question of law which may contain underlying
`facts.”).
`III. Discussion
`A. Introduction and Determinations Regarding the ’351, ’929, ’120, ’089, and ’059 Patents
`This will be the third time the Court has had occasion to review various patents assigned
`
`to BlackBerry. About a year before this case was filed, BlackBerry filed patent infringement
`actions against Snap, Inc. and certain Facebook, Inc. entities and affiliates. Those cases are also
`before this Court. BlackBerry Limited v. Facebook, Inc. et al, Case No. 2:18-cv-01844-GW-(KSx)
`(“Facebook Case”); BlackBerry Limited v. Snap Inc., Case No. 2:18-cv-02693-GW-(KSx) (“Snap
`Case”). Concurrently with this tentative ruling, the Court has prepared and shared a tentative
`ruling addressing three § 101 summary judgment motions in those other cases. The determinations
`reached therein, as well as certain determinations that were reached by the Court in resolving
`similar § 101 motions to dismiss previously brought by Snap and Facebook Defendants, are
`relevant to the parties’ dispute here. See Facebook Case, Docket No. 68.
`
`Directly relevant, in its concurrently-issued tentative ruling in the Facebook Case, the
`Court has found the asserted claims of U.S. Patent Nos. 8,296,351 and 8,676,929 patent-ineligible
`at the summary judgment stage. The Court would DEFER RULING on Twitter’s motion to
`dismiss related to these patents until a final ruling has been issued in that case and the parties have
`each filed supplemental briefs five pages or less stating how a determination of § 101 patent-
`ineligibility of the same asserted patents in those other cases should impact Twitter’s motion in
`this case. Unless otherwise specified at the hearing, supplemental briefs shall be due by September
`10, 2019.
`
`Also directly relevant, in both its previous ruling on Facebook Defendants’ § 101 motion
`to dismiss and in its concurrently-issued tentative ruling in the Facebook Case regarding a § 101
`motion for summary judgment, the Court found the asserted claims of U.S. Patent Nos. 9,349,120
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`not drawn to an abstract idea under Mayo/Alice Step One. The Court would specifically
`incorporate by reference the analysis provided in each of its other § 101 rulings regarding the ’120
`Patent, and for the same reasons discussed in those rulings would DENY Twitter’s motion to
`dismiss as it relates to the ’120 Patent.
`
` The Court has not previously reviewed the other four asserted patents raised by Twitter’s
`motion to dismiss. However, the Court finds for at least some of these newly-disputed patents, its
`previous analysis is equally instructive as to the appropriate outcome at the pleading stage.
`
`For U.S. Patent No. 8,286,089, the Court again specifically incorporates by reference the
`analysis provided in each of its previous § 101 rulings regarding the ’120 Patent. Particularly at
`the pleading stage, the parallels between the ’089 and ’120 Patents put the ’089 Patent similarly
`under the purview of the claims held non-abstract at Step One in Core Wireless. See Core Wireless
`Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356, 1362 (Fed. Cir. 2018). Even if the claims
`are abstract at Mayo/Alice Step One, the Court would find that § 101 analysis at the motion to
`dismiss stage is premature, as factual questions likely exist at Mayo/Alice Step Two would
`preclude dismissal. See Aatrix, 882 F.3d at 1128. The Court would DENY WITHOUT
`PREJUDICE Twitter’s motion as to the ’089 Patent.
`
`U.S. Patent No. 9,021,059 relates to the transmission of content and notifications via a
`specific arrangement of network components. Sufficient Federal Circuit cases exist for the
`proposition that a specific arrangement and relationship among networked components may be
`patent-eligible as drawn to a technologically improved or unconventional distributed architecture,
`whether it be at Mayo/Alice Step One or Two, for the Court to deem it premature at this stage of
`litigation to consider the patent eligibility of these claims. Visual Memory LLC v. NVIDIA Corp.,
`867 F.3d 1253, 1261-62 (Fed. Cir. 2017); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1336
`(Fed. Cir. 2016); Bascom Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350
`(Fed. Cir. 2016). The Court would DENY WITHOUT PREJUDICE Twitter’s motion as to the
`’059 Patent.
`
`For U.S. Patent No. 8,572,182, there are also parallels to BlackBerry patents previous
`considered by the Court, but this time to a patent about setting time stamps that the Court found
`patent-ineligible at the motion to dismiss stage. Facebook Case, Docket No. 68 at 13-18. The
`Court will thus address the parties’ dispute regarding this patent in greater detail herein.
`
`Finally, for U.S. Patent No. 8,825,777, further discussion is also warranted.
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`B. U.S. Patent No. 8,572,182
`1. Background of the Patent and the Asserted Claims
`The ’182 Patent issued October 29, 2013 and is titled “Handling Notifications in Instant
`
`Messaging Systems.”
`
`BlackBerry alleges that Twitter infringes “at least claims 1 and 4 of the ’182 Patent.” FAC,
`Docket No. 36 ¶ 186. Claim 1 of the ’182 Patent recites:
`1. A method in a first communication device for reducing communications in
`an instant messaging conversation between said first device and a second
`communication device, the method comprising:
`sending to said second device, a plurality of instant messages of said
`conversation;
`receiving from said second device, after sending said plurality of instant
`messages, at least a notification of the status of only a particular
`one of said plurality of instant messages sent by said first device
`to said second device without having previously received a
`notification of the status of any of said plurality of instant
`messages sent prior to said particular one of said plurality of
`instant messages; and
`in response to receipt of said notification, a processor updating an
`internal record to reflect said status for said particular one of said
`plurality of instant messages and to reflect an inferred status for
`all of said plurality of instant messages of said conversation sent
`prior to said particular one of said plurality of instant messages.
`’182 Patent, Claim 1.
`Claim 4 of the ’182 Patent relates to “[a] non-transitory computer-readable medium having
`computer-executable instructions,” but otherwise includes substantially similar method steps
`compared to the steps in Claim 1.
`Twitter limits its motion to dismiss arguments specifically to discussing Claims 1 and 4 of
`the ’182 Patent, including based on the assertion that Claim 1 is representative of Claims 1 and 4.
`See, e.g. Docket No. 39-1 at 7, 7 n.1, 8. The Court agrees with Twitter that Claim 1 is
`representative of Claims 1 and 4, and as to these particular claims, rejects BlackBerry’s generalized
`objection to the contrary. See Docket No. 40 at 6-7; see also, e.g. Berkheimer, 881 F.3d at 1365
`(“Courts may treat a claim as representative in certain situations, such as if the patentee does not
`present any meaningful argument for the distinctive significance of any claim limitations not found
`in the representative claim or if the parties agree to treat a claim as representative.”).
`2. Mayo/Alice Step One
`
`As mentioned, the Court finds Claims 1 and 4 of the ’182 Patent highly reminiscent of
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`claims in one of BlackBerry’s other patents involving selectively placing time stamps on instant
`messages:
`
`Although BlackBerry places emphasis on the purported invention’s
`selective display of the timestamp, at least Claim 1 of the ’713 Patent does
`not provide any information about how or where a timestamp is actually
`displayed on the device. [Footnote omitted.] To the extent BlackBerry would
`take the position that a claim’s sole recitation that a component must be
`displayed is sufficient to confer patentability even when there is no basis to
`find that the display confers a technological improvement, this is contradicted
`by the caselaw. See, e.g., [Interval Licensing LLC v. AOL, Inc., 896 F.3d
`1335, 1344 (Fed. Cir. 2018)]. Indeed, the ’713 Patent specification shows
`that, at least as to the independent claims, there is no required format for
`displaying the time stamp. ’713 Patent at 7:34-37 (“[T]he appearances of the
`various time stamps herein [are] completely exemplary, and . . . the time
`stamps could be provided in any format without departing from the concept
`of the invention.”) . . . . Claim 1 could cover embodiments where a displayed
`timestamp still takes up so much screen real estate on a mobile device that
`there is no optimization; there are simply no limits on the face of the claim as
`to how a timestamp must be displayed on a screen. [Footnote omitted.]
`
`The fact that the display of the claimed timestamps is dependent on a
`specific rule (of setting a “predetermined duration of time”) also fails to save
`the claims from being abstract. Again, there is nothing that ties the rule to a
`technological improvement. The language of Claim 1 is broad enough that it
`would cover embodiments that may not actually improve when timestamp
`information is displayed. In its Opposition, BlackBerry effectively concedes
`that there are no limits on what constitutes a “predetermined duration of
`time.” [Citations omitted.] Thus, the ’713 Patent could cover predetermined
`time durations set to both miniscule and enormous lapses in time. BlackBerry
`provided no basis in its papers or at the hearing as to how these embodiments
`on the far ends of the spectrum would provide a technological improvement
`in the way time stamp information is displayed on a mobile device. And as
`the Federal Circuit has previously found, the use of a rule alone does not
`necessarily make a set of claims non-abstract. [Footnote omitted;]
`Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed.
`Cir. 2016) (“Symantec”) (rejecting patentee’s argument at step two that
`claims were patent eligible because they applied business rules to email and
`finding claims drawn to patent-ineligible concept of screening emails);
`FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1095 (Fed. Cir. 2016)
`(“Although FairWarning’s claims require the use of a computer, it is this
`incorporation of a computer, not the claimed rule, that purportedly
`“improve[s] [the] existing technological process” by allowing the automation
`of further tasks.”) cf. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d
`1299, 1314 (Fed. Cir. 2016) (Federal Circuit finding on Rule 12(c) motion
`that claims were not drawn to patent-ineligible concept where they relied on
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`a first set of rules to automate lip synchronization, where there was no
`evidence that prior art animators were employing the same type of rules
`required by the claims and stating, “[t]his is unlike Flook, Bilski, and Alice,
`where the claimed computer-automated process and the prior method were
`carried out in the same way.”).
`Facebook Case, Docket No. 68 at 14-16.
`In regards to Claims 1 and 4 of the ’182 Patent, BlackBerry itself acknowledges that, as
`explained in the ’182 Patent, prior art instant message (“IM”) systems handled the issue of a sender
`not knowing if someone has received, read, or begun responding to the sender’s IM “by providing
`senders ‘Message_Delivered,’ ‘Message_Read,’ ‘Typing_Started,’ and ‘Typing_ Stopped’
`notifications for each message exchanged between devices.” Docket No. 40 at 21 (emphasis in
`original) (citing ’182 Patent at 1:22-32). It seems that the only purported improvement BlackBerry
`asserts is recited by the claims is based on a rule outlining when to send such prior art status
`notifications. On this basis, BlackBerry argues that “Claim 1, among others, embodies [an]
`architecture to reduce redundant notifications.” Id.
`
`BlackBerry, however, fails to explain how the problem of redundant status notifications is
`a technological problem, let alone how the claims recite a solution that represents a technological
`improvement. Reducing redundant information is an inherently abstract goal. That the claims
`carry out that goal in the context of an instant messaging environment does not change the
`outcome, as “limiting the claims to [a] particular technological environment[,] . . . is, without more,
`insufficient to transform [the claims] into patent-eligible applications of the abstract idea at their
`core.” Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016); Affinity Labs
`of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258-59 (Fed. Cir. 2016) (“To be sure, the ’379
`patent claims the wireless delivery of regional broadcast content only to cellphones . . . . That
`restriction, however, does not alter the result. All that limitation does is to confine the abstract
`idea to a particular technological environment − in this case, cellular telephones.”). Moreover, the
`claims’ purported solution would broadly cover any type of notification displayed in any form, so
`long as for groups of instant messages, the notification is not displayed until the last message in
`the group is sent. Similar to the determination reached for the ’713 Patent, such a result-focused,
`general requirement for a “notification” further supports the conclusion that the claims fail to recite
`a specific, technological improvement to instant messaging systems as tools. Elec. Power, 830
`F.3d at 1354 (The present case is different: the focus of the claims is not on such an improvement
`in computers as tools, but on certain independently abstract ideas that use computers as tools.”).
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`And importantly, like the ’713 Patent, the fact that the claims set up a generic rule for when to
`display a notification is not sufficient to save the claims from abstraction. See, e.g. Symantec, 838
`F.3d at 1318.
`
`In these claims, BlackBerry’s assertion that performing the claimed steps leads to reduced
`bandwidth usage for status notifications does not change the outcome, but instead is merely a
`benefit that flows from performance of the abstract idea. BSG Tech LLC v. Buyseasons, Inc., 899
`F.3d 1281, 1288 (Fed. Cir. 2018) (“These benefits, however, are not improvements to database
`functionality. Instead, they are benefits that flow from performing an abstract idea in conjunction
`with a well-known database structure.”); Intellectual Ventures I LLC v. Capital One Bank (USA),
`792 F.3d 1363, 1367 (Fed. Cir. 2015) (“Capital One”) (noting with respect to Step Two that
`“claiming the improved speed or efficiency inherent with applying the abstract idea on a computer
`[does not] provide a sufficient inventive concept.”). Further, although BlackBerry makes these
`assertions about bandwidth savings, there are no limitations in the claims that specifically address
`these problems or would necessarily support these improvements. See Symantec, 838 F.3d at 1316
`(“Finally, IV argues that the ′050 patent ‘shrink[s] the protection gap and moot[s] the volume
`problem’ . . . . However, the asserted claims do not contain any limitations that address the
`protection gap or volume problem, e.g., by requiring automatic updates to the antivirus or antispam
`software or the ability to deal with a large volume of such software.”). Again importantly and like
`the ’713 Patent, without limitations for where or how a notification is displayed or provided to an
`instant message sender, the argument that the notification always necessarily reduces bandwidth
`is not persuasive.
` Having concluded that the claims are drawn to the abstract idea of reducing redundant
`notifications, the Court proceeds to Mayo/Alice Step Two.
`2. Mayo/Alice Step Two
`BlackBerry’s Mayo/Alice Step Two argument is short enough to reproduce in full:
`Twitter also fails to meet its burden at step two. As discussed at step one, the
`inventions make specific improvements to prior art IM systems. See, e.g.,
`’182 patent at claims 1, 4. Twitter offers nothing to demonstrate the claimed
`elements individually or as a combination were “well-understood, routine,
`and conventional activities previously known to the industry.” Aatrix, 882
`F.3d at 1128. BlackBerry has specifically identified limitations in its status
`notification mechanism which operate together to reduce redundant
`notifications and conserve precious computation resources, “a specific and
`substantial improvement over prior messaging notification systems.” Dkt. 36
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`¶¶ 180-182. These allegations preclude dismissal at step two. [Cellspin Soft,
`Inc. v. Fitbit, Inc., 927 F.3d 1306, 1317-18 (Fed. Cir. 2019)]; Aatrix, 882 F.3d
`at 1126-28.
`
`Docket No. 40 at 22-23. BlackBerry’s cited paragraphs in its FAC either: (1) state in a conclusory
`fashion that certain claim limitations are non-routine and unconventional, without explaining how
`so or (2) refer back to the same arguments presented by BlackBerry in Step One, i.e. that the claims
`result in “more efficient use of system bandwidth.” See, e.g. FAC, Docket No. 36 ¶ 182.
`BlackBerry’s allegations are insufficient to manufacture a question of fact at Mayo/Alice Step
`Two. BSG, 899 F.3d at 1291; see also id. at 1290 (“it has been clear since Alice that a claimed
`invention’s use of the ineligible concept to which it is directed cannot supply the inventive concept
`that renders the invention ‘significantly more’ than that ineligible concept.”).
`Because the Court finds that Claims 1 and 4 of the ’182 Patent are drawn to an abstract
`idea and there are no well-pled factual allegations in the FAC to support an assertion that the claim
`components, considered individually and as an ordered combination, recite significantly more than
`routine, conventional, or well-understood material,1 the Court would GRANT Twitter’s motion as
`to Claims 1 and 4 of the ’182 Patent and accordingly find that BlackBerry’s infringement claims
`with respect to the ’182 Patent must be dismissed.
`C. U.S. Patent No. 8,825,777
`1. Background of the Patent and the Asserted Claims
`The ’777 Patent is titled “Selective Delivery of Social Network Messages Within a Social
`
`Network.” It issued on September 2, 2014.
`
`BlackBerry alleges that Twitter infringes “at least Claims 1, 10, and 19 of the ’777 Patent.”
`FAC, Docket No. 36 ¶ 213.
`
`Claim 1 of the ’777 Patent states:
`1. A method of managing electronic communications within a social group of
`a social network, comprising:
`monitoring messages communicated within the social group;
`determining content shared by a number of messages communicated
`within the social group, wherein the number of messages sharing
`the determined content satisfies at least one of:
`
`                                                            
`1 The Court notes that BlackBerry did not adequately or sufficiently assert at either Step One or Step Two
`that the claim limitation requiring a processor to update a record, including with an “inferred status” for the messages
`where a notification was not sent, conveys patent eligibility. Based on the Court’s review, this limitation appears to
`simply provide generic post-solution activity rather than meaningfully figure into the § 101 dispute for these claims.
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`a growth rate of the number of messages meets or exceeds a
`growth rate threshold; and
`the number of messages meets or exceeds a message quantity
`threshold;
`determining whether one or more new messages to be communicated to
`one or more members of the social group comprises content
`similar to the determined content; and
`selectively adjusting notification of the one or more new messages to the
`one or more members of the social group in response to
`determining that the one or more new messages to be
`communicated to the one or more members of the social group
`comprises content similar to the determined content.
`
`
`’777 Patent, Claim 1. Claim 10 refers to “[a] social network server coupled to a communications
`network that facilitates exchange of electronic communications within a social group of the
`communications network.” It requires a processor and a memory coupled to the processor, where
`the memory is configured to perform substantially the same steps recited in Claim 1. Claim 19
`refers to “[a] non-transitory computer-readable medium having computer-executable instructions
`for causing a server comprising a processor and associated memory to manage electronic
`communications within a social group of a social network,” requiring that the instructions are the
`same as the method steps recited in Claim 1.
`
`Like its arguments regarding the ’182 Patent, Twitter again appears to limit its motion to
`dismiss arguments specifically to Claims 1, 10, and 19 of the ’777 Patent. See, e.g., Docket No.
`39-1 at 17. Twitter treats Claim 1 as representative of Claims 1, 10, and 19. Id. at 14. The Court
`again agrees with Twitter that Claim 1 is representative of Claims 1, 10, and 19, and rejects
`BlackBerry’s generalized objection to the contrary for these particular claims. See Docket No. 40
`at 6-7; see also, e.g., Berkheimer, 881 F.3d at 1365.
`2. Mayo/Alice Step One
`
`Claims 1, 10, and 19 of the ’777 Patent have similar § 101 shortcomings to Claims 1 and
`4 of the ’182 Patent. BlackBerry characterizes the ’777 Patent as “refin[ing] the quality of
`messages sent over a social network by specifically handling notifications of messages that may
`harm the network or its users, while preserving network resources and bandwidth by curbing the
`continued proliferation of such content and creating a better experience for users consuming
`information from around the Internet.” Docket No. 40 at 27-28. BlackBerry refers to a portion of
`the patent specification that states: “[w]ith the ability of social network users to easily and in real-
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`Case 2:19-cv-01444-GW-KS Document 47 Filed 09/05/19 Page 12 of 14 Page ID #:785
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`time copy and re-transmit popular messages from one user to a multitude of other users, as is the
`case of re-tweeting on Twitter, for example, the potential reach of such re-postings within the
`social group or network can be exponential, presenting a significant hazard to bandwidth and other
`traffic resources of the network.” ’777 Patent at 1:52-58.
`However, the focus of the patent claims appears analogous to determining that a heckler’s
`increased, repeated comments at a rally require some intervention by event security. In the same
`way, an employee for a celebrity faced with incoming hate mail or fan mail may monitor the mail
`and “selectively adjust[ ]” what mail to share with his or her celebrity employer, after determining
`the mail has exceeded a certain threshold. Twitter also provides an analogy to a city council-
`person receiving a flood of incoming calls that are screened by a staff member. As Twitter
`explains, “[t]he mere fact that computer-implemented communications may enable age-old
`problems to proliferate more quickly does not make those problems ‘technological.’” Docket No.
`43 at 19. The Court agrees. Limiting the idea of monitoring and curbing content notifications to
`an online social network environment does not change the nature of the claims to become non-
`abstract. Elec. Power, 830 F.3d at 1354; Affinity Labs, 838 F.3d at 1258-59.
`As with the ’182 Patent, BlackBerry’s arguments about bandwidth savings are again
`unpersuasive. BSG, 899 F.3d at 1288 (“These benefits . . . . are benefits that flow from performing
`an abstract idea in conjunction with a well-known database structure.”); Capital One, 792 F.3d at
`1367 (“claiming the improved speed or efficiency inherent with applying the abstract idea on a
`computer [does not] provide a sufficient inventive concept.”). Again, although BlackBerry makes
`these assertions about bandwidth savings, there are no limitations in the claims that specifically
`address these problems or would necessarily support these improvements. Symantec, 838 F.3d at
`1316.
`
`And also like the ’182 Patent (and the ’713 Patent in the Facebook Case), the fact that
`monitoring and controlling notifications occurs in response to a particular set of rules does not
`confer patent eligibility. Id. at 1316. Beyond requiring that adjusting notifications occur in
`response to these general, abstract rules, there are no claim limitations explaining how the various
`monitoring, determining, and adjusting steps are carried out.
`Ultimately, because the ’777 Patent claims are directed to solving a non-techn