Case 1:17-cv-02097-RBJ Document 234 Filed 06/02/21 USDC Colorado Page 1 of 19
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`REALTIME ADAPTIVE STREAMING, LLC
` Plaintiff,
`v.
`SLING TV L.L.C., SLING MEDIA
`L.L.C., DISH TECHNOLOGIES L.L.C.,
`AND DISH NETWORK L.L.C.
` Defendants.
`
`
`CIVIL ACTION NO. 1:17-CV-02097-RBJ
`PATENT CASE
`JURY TRIAL DEMANDED
`
`
`
`
`DISH DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OF INVALIDITY
`BASED ON LACK OF SUBJECT MATTER ELIGIBILITY
`
`
`INTRODUCTION
`
`I.
`
`
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`Realtime’s ’610 patent claims abstract ideas for selecting a compression method.
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`The Supreme Court’s Alice decision holds that abstract ideas are not patentable under
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`35 U.S.C. § 101 and renders the asserted ’610 claims invalid.
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`The Court will recall that Defendants sought an early Rule 12 adjudication of
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`unpatentability and the Court ruled that the challenge could be renewed after claim
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`construction. Since that time, the Federal Circuit decided a similar case in Adaptive
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`Streaming Inc. v. Netflix, Inc., 836 F. App’x 900, 901 (Fed. Cir. 2020), Ex. 3, finding that
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`selecting a compression technique and converting data between formats are not eligible
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`concepts for patent protection under Alice. Both the ineligible Adaptive Streaming patent
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`and Realtime’s ’610 patent focus on selecting a data compression method and converting
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`uncompressed data into compressed data. Also, two other tribunals held Realtime’s
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`nearly identical claims from the ’535 patent (which Realtime recently withdrew from this
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`case) ineligible under § 101. The ’610 patent’s claims are derived from the same
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`specification and figures as the ’535 patent, and use almost identical language. With the
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`record now fully developed, the issue of patent eligibility is ripe for decision. Defendants
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`respectfully request the Court hold that claims 1, 2, 6, 8-14, 16, and 18 of ’610 patent are
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`ineligible for patenting under § 101.
`
`II. STATEMENT OF UNDISPUTED FACTS
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`A. Procedural Background
`
`During the hearing on Defendants’ Rule 12 motion on this issue, the Court
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`expressed doubts about the § 101 eligibility of the ’610 patent, remarking: “Maybe this is
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`just an abstract concept. This doesn’t sound like something you would patent. It doesn’t
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`sound like its technology. It just sounds like an idea.” (Mar. 7, 2018 Hrg. Tr. at 9:9-14).
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`The Court nevertheless decided it best to perform claim construction before
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`deciding eligibility. (Id. at 14:14-15 (“[W]e need to get these terms defined and then see
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`where we are.”)). The Court construed claim terms, including the term “throughput of a
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`communication channel,” on January 11, 2019. (Dkt. 151). Shortly thereafter, the case
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`was stayed for inter partes review (which cannot consider § 101). (Dkts. 162; 167.) During
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`the stay, two courts held Realtime’s nearly identical claims from the ’535 patent are
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`unpatentable under § 101. See Realtime Adaptive Streaming, LLC (“RAS”) v. Google,
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`LLC, No. 2:18-cv-03629, Dkt. 36 (C.D. Cal. Oct. 25, 2018), Ex. 6; RAS v. Netflix, Inc., No.
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`17-1692, Dkt. 48 (D. Del. Dec. 12, 2018) (“Netflix”) (report & recommendation), Ex. 7.
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`B. The ’610 Patent
`
`The ’610 patent is “directed to selecting a compression scheme based on
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`characteristics of the digital data being compressed” for more efficient data storage. (Dkt.
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`151 (Claim Construction Order) at 2). Compression was a well-known concept long before
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`the ’610 patent was filed, as the ’610 patent admits. (’610 pat. at 2:44-46 (“Data
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`compression is widely used to reduce the amount of data required to process, transmit,
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`or store . . . information.”); Ex. 1 (Bovik Decl.) ¶ 6). Realtime also admits that the ’610
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`patent did not invent any of its cited compression standards. (Ex. 2 (2012-02-26 Realtime
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`Resp. to Defs.’ Common RFA’s 8-12)). The ’610 patent also admits that encoding
`
`algorithms that perform compression were well-known in the prior art. (’610 pat. at 1:31-
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`35 (“There are a variety of data compression algorithms that are currently available”); Ex.
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`1 (Bovik Decl.) ¶ 7-8).
`
`III.
`
`LEGAL STANDARD
`
`The Rule 56 summary judgment standard applies. Celotex Corp. v. Catrett, 477
`
`U.S. 317, 323-24 (1986). “[T]he § 101 inquiry may appropriately be resolved on a motion
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`for summary judgment.” Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d
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`1314, 1325 (Fed. Cir. 2016).
`
`The Supreme Court’s two-step Alice test controls the § 101 eligibility analysis.
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`Alice Corp. Pty. v. CLS Bank Int’l, 573 U.S. 208, 217 (2014). First, the court asks whether
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`the patent claims are directed to an abstract idea. Id. at 218. The “directed to” inquiry
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`examines claims to determine whether “their character as a whole is directed to excluded
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`subject matter.” Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed.
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`Cir. 2015). To determine “abstractness,” both the Federal Circuit “and the Supreme Court
`
`have found it sufficient to compare claims at issue to those already found to be directed
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`to an abstract idea in previous cases.” “[I]nformation storage and exchange is an abstract
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`idea even when it uses computers as a tool or is limited to a particular technological
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`environment.” See Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l
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`Ass’n, 776 F.3d 1343 (Fed. Cir. 2014).
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`The second Alice step is a search for an “‘inventive concept’—i.e., an element or
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`combination of elements sufficient to ensure that the patent in practice amounts to
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`significantly more than a patent upon the [ineligible concept] itself.” Alice, 573 U.S. at 217-
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`18. “Simply appending conventional steps, specified at a high level of generality, [is] not
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`enough to supply an ‘inventive concept.’” Id. at 222 (original italicized).
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`IV. ARGUMENT
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`The Alice test shows that the ’610 patent is ineligible for patenting under § 101.
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`Under step 1, the patent claims are directed to an abstract idea—selecting a compression
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`scheme based on a characteristic of the data requiring compression. A multitude of cases
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`hold that data encoding, compression, and selection of a method based on ordinary
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`characteristics are abstract. Under step 2, the ’610 patent claims add nothing to render it
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`patent eligible. The claims simply recite the abstract idea untethered to any technological
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`solution. Two courts recently struck down nearly identical claims of the ’535 patent as
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`ineligible under § 101, and the same result should apply to the ’610 patent.
`
`A. Alice Step 1: The ’610 Patent Claims the Abstract Idea of Selecting a
`Compression Algorithm
`
`The ’610 patent’s claims are basic and functional. They cover the simple act of
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`selecting a compression scheme based on two considerations, and nothing more. Claim
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`1 of the ’610 patent is representative of the asserted patent claims:
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`1. A method, comprising:
`
`determining, a parameter or an attribute of at least a portion of a data
`block having video or audio data;
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`selecting one or more compression algorithms from among a plurality of
`compression algorithms to apply to the at least the portion of the data block
`based upon the determined parameter or attribute and a throughput of a
`communication channel, at least one of the plurality of compression
`algorithms being asymmetric; and
`
`compressing the at least the portion of the data block with the selected
`compression algorithm after selecting the one or more, compression
`algorithms.
`
`The claim recites three vague steps, all performed in the abstract and untethered to a
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`specific device or system – 1) determine a parameter; 2) choose a compression scheme
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`based on the parameter and throughput; and 3) compress data. These claims constitute
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`a basic abstract idea with no concrete application, for which patent protection is
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`unavailable. 1
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`Compression is simply making something smaller; or in a technical sense,
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`reducing the amount of space required to store a given piece of information. As the ’610
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`patent puts it, “[d]ata compression is widely used to reduce the amount of data required
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`to process, transmit, or store a given quantity of information.” (’610 pat. at 2:44-46; Ex. 1
`
`(Bovik Decl.) ¶ 6). The ’610 patent also recognizes: there are many known ways to
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`compress data. (Id. at 1:32-33 (“There are a variety of data compression algorithms that
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`are currently available.”); Ex. 1 (Bovik Decl.) ¶ 7).
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`Compression is analogous to stuffing items into a small suitcase. A traveler has
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`many options when faced with the challenge of fitting clothes into a suitcase of fixed size,
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`
`
`1 Claim 1 is representative because none of the other asserted ’610 patent claims
`present “distinctive significance” as it relates to eligibility. See Berkheimer v. HP Inc.,
`881 F.3d 1360, 1365 (Fed. Cir. 2018). In situations such as these, it is proper to treat a
`claim as representative for the eligibility analysis. Id.
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`just like a programmer selecting a compression algorithm. The traveler could sit on the
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`suitcase to compress its contents, and then zipper the suitcase. Or, the traveler could
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`more efficiently arrange the suitcase’s contents. The various techniques for packing
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`contents into a suitcase are well known and arbitrary, like compression.2 (See also Ex. 1
`
`(Bovik Decl.) ¶¶ 9-10 (analogizing ’610 patent to carpenter selecting best tool for job)).
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`Critically, the details of compression form no part of the ’610 patent. The ’610
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`patent simply chooses between prior art compression methods based on an “attribute” or
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`“parameter” of data, which is not identified for the majority of the claims. The few claims
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`that carry additional clarification are directed toward generic tasks of storing/retrieving
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`data or using the throughput of a channel to select a compression method. (See e.g., cls.
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`9-13, ’610 pat. at 20:41-21:25). There is nothing inventive about how this selection is
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`made. Returning to the suitcase analogy, it is inevitable for the traveler to choose how to
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`pack. It would be natural to base that decision on characteristics of the traveler’s items
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`and the suitcase itself. A traveler is more likely to use the sitting technique if the suitcase
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`is packed with casual clothes and less likely if it contains fragile items. Similarly, the
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`traveler is more likely to sit on a soft suitcase and less likely with a hard-shell suitcase.
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`Like selecting a packing method, a programmer selecting a compression algorithm is an
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`ineligible abstract idea. (See Ex. 1 (Bovik Decl.) ¶¶ 9-11, 14.)
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`
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`2 People routinely use different compression schemes to reduce the size of different
`types of information. Stenographers type conversations using shorthand, composers
`record their work in sheet music notations that instruct the musician to repeat certain
`musical patterns (e.g., tremolo, repeat signs, and simile marks).
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`1. Precedent Dictates that the ’610 Patent Is Ineligible
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`Several cases, such as Adaptive Streaming Inc. v. Netflix, Inc., 836 F. App’x 900,
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`901 (Fed. Cir. 2020), Ex. 3, provide compelling authority for finding the ’610 patent invalid.
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`The representative claim in Adaptive Streaming is similar to the claims at issue here,
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`involving “video signals having respective second compression formats based at least
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`in part on the parameters.” Id. at 902.3 Even more on point is one of the dependent
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`claims that the Federal Circuit analyzed, claim 42:
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`42. The system of claim 39 wherein a different compressed output video
`signal can be dynamically selected to be presented at the at least one
`client device, instead of a current compressed output video signal, in
`response to a change in a bandwidth condition.
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`Id. That is, just like the ’610 patent, claim 42 of the Adaptive Streaming patent sought to
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`patent the selection of a compressed signal based upon a parameter of the
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`communication channel. (See Ex. 1 (Bovik Decl.) ¶¶ 12-13).
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`The Federal Circuit was resolute: these claims are not patent eligible because they
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`constitute nothing more than abstract ideas. Equating compression with “format
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`conversion” of data, the court explained that such claims are abstract ideas:
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`[T]he claims and written description make clear that the focus of the claimed
`advance is the abstract idea of format conversion, from an incoming
`signal’s format to a variety of formats suited to different destination devices.
`The focus is not any specific advance in coding or other techniques
`for implementing that idea; no such specific technique is required.
` . . [T]he ideas of encoding and decoding image data and of
`converting formats, including when data is received from one medium and
`sent along through another, are by themselves abstract ideas.
`
`
` .
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`3 Unless otherwise noted, all emphasis herein has been added.
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`Id. at 903. In concluding that the claims are ineligible under § 101, the Court noted that
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`“there is no identification in the claims or written description of specific, unconventional
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`encoding, decoding, compression, or broadcasting techniques.” Id. at 904. The very same
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`is true here, and the ’610 patent should similarly be held patent ineligible.
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`Adaptive Streaming is not alone in concluding that claims directed to data encoding
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`and compression are ineligible patent subject matter.4 Other cases have analogized data
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`encoding and compression to “Morse code, ordering food at a fast food restaurant via a
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`numbering system, and Paul Revere’s ‘one if by land, two if by sea’ signaling system,”
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`because they “all exemplify encoding at one end and decoding at the other end.”
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`RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1326 (Fed. Cir. 2017). Indeed, a host
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`of decisions, many cited by Adaptive Streaming, hold that data encoding and
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`compression are ineligible for patenting as abstract ideas:
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` RecogniCorp, 855 F.3d at 1326-27 – Holding ineligible under § 101 claims to a
`method “whereby a user starts with data, codes that data using ‘at least one
`multiplication operation,’ and ends with a new form of data” because it “is directed
`to the abstract idea of encoding and decoding image data.”;
`
` Voit Techs., LLC v. Del-Ton, Inc., 757 F. App’x 1000, 1002-03 (Fed. Cir. 2019) –
`Holding claims “directed to use of generic computer components performing
`conventional compression techniques to carry out the claimed invention”
`ineligible for covering the abstract idea of “entering, transmitting, locating,
`compressing, storing, and displaying data (including test and image data) to
`facilitate the buying and selling of items.”;
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`
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` Virginia Innovation Scis. Inc. v. Amazon.com, Inc., 227 F. Supp. 3d 582 (E.D. Va.
`2017), aff’d sub nom. Virginia Innovation Scis., Inc. v. HTC Corp., 718 F. App’x
`988 (Fed. Cir. 2018) – Holding claims involving “converting the video signal from
`4 The ’610 patent refers to “compression” and “encoding” synonymously. (’610 pat. at
`4:29-33 (“Lossy data compression techniques provide for an inexact representation of
`the original uncompressed data such that the decoded (or reconstructed) data differs
`from the original unencoded/uncompressed data.”); Ex. 1 (Bovik Decl.) ¶ 20).
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`a compression format” to another format “qualifies as an abstract idea.” Id. at
`587–88, 597.
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`
`
`Intell. Ventures I LLC v. Cap. One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017)
`– Holding that patents that are, “at their core, directed to the abstract idea of
`collecting, displaying, and manipulating data,” are ineligible;
`
` Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1334
`(Fed. Cir. 2017) – Holding ineligible as an abstract idea claim that required
`“converting a plurality of streams of audio and/or visual information into a
`plurality of streams of addressed digital packets complying with the specifications
`of a network communication protocol”;
`
`At bottom, compression is mere conversion of data from one form to another,
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`which the Federal Circuit consistently holds unpatentable. And the ’610 patent claims are
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`untethered to a specific machine, station, server, display, or other meaningful device. This
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`makes the ’610 patent even more abstract than the above-cited cases. See, e.g.,
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`RecogniCorp, 855 F.3d at 1324 (requiring a “first” and “second” “display”).
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`2. The “Selecting” Limitation Is Also Abstract
`
`It is clear that data encoding, such as compression, is a patent ineligible abstract
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`idea, as described above. So too is the notion of “selecting” a compression algorithm.
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`The “selecting” limitation is purely functional, providing only a black-box description
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`of an aspirational process for selecting a prior art compression algorithm using an
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`unnamed parameter and the communication channel’s throughput. Notably, the claims
`
`provide no detail on how to select a compression algorithm using this information. For
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`example, the claims do not explain that when a certain data attribute is present, then a
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`particular compression algorithm is selected. Such specificity would likely be insufficient
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`to confer eligibility, but its absence highlights the abstractness of the “selecting” limitation.
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`The claims attempt to patent the basic notion that one could use an abstract data
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`attribute and throughput to select a compression algorithm. These metaphysical
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`observations are not protectable under the patent system, and for good reason: it risks
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`“inhibit[ing] further discovery by improperly tying up the future use of these building blocks
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`of human ingenuity.” Alice, 573 U.S. at 216 (2014). For that reason, “the essentially result-
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`focused, functional character of claim language has been a frequent feature of claims
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`held ineligible under § 101.” Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1356
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`(Fed. Cir. 2016) (deeming claims “so result-focused, so functional, as to effectively cover
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`any solution to an identified problem” ineligible).
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`Moreover, Adaptive Streaming demonstrated the ineligibility of patents involving
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`the selection of a compression algorithm. Namely, claim 42 of the challenged patent in
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`Adaptive Streaming required that “a different compressed output video signal can be
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`dynamically selected . . . in response to a change in a bandwidth condition.” Ex. 3, 836
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`F. App’x at 902. In other words, a compression method is selected in response to a
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`characteristic of a communication channel. The Federal Circuit deemed that claim
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`ineligible. Id. at 903-04; see also SmartGene, Inc. v. Advanced Biological Lab’ys, SA, 555
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`F. App’x 950, 955 (Fed. Cir. 2014) (holding claims that use computer for “evaluating and
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`selecting” a therapeutic treatment regimen ineligible).
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`Further still, the notion of “selecting” a compression algorithm in the ’610 patent is
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`merely an ineligible, abstract mental process carried out in the human brain or on paper.
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`Elec. Power, 830 F.3d at 1354; see also CyberSource Corp. v. Retail Decisions, Inc., 654
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`F.3d 1366, 1373 (Fed. Cir. 2011) (“[A] method [that] can be performed by human thought
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`alone is merely an abstract idea and is not patent eligible under § 101”). The ’610 patent
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`concedes that its selection may be made by a human, rather than a computer. E.g., ’610
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`pat. at 12:46-47 (“[T]he selection process may be performed either manually or
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`automatically by the controller . . . ”). Mr. McErlain, a ’610 patent inventor, readily admits
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`that with his invention, a human selects the compression algorithm based on throughput:
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`Q: So the anticipation [of throughput] is the choice of the engineer or
`the business person?
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`A: Yeah, yeah. I mean each company might be different.
`
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`(Ex. 4 (McErlain Dep. Tr.) at 175:12-176:13). Mr. McErlain further admits that the user
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`ultimately makes the critical selection of the compression algorithm when operating the
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`accused products. (Id. at 238:21-239:18 (“[T]he user has different adjustments that the
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`user can make to the settings . . . it’s the communication between the user and the head
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`end that is critical to determining what blocks get sent.”)). Thus, the ’610 patent
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`specification and its inventor agree: nothing in the ’610 patent claims foreclose them from
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`being performed by a human outside of generic computer-implemented processes. The
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`claims’ failure to foreclose performance by a human also renders them abstract. Intell.
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`Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016) (“This
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`demonstrates that the concept is well-known and abstract. Furthermore, [other than]
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`generic computer-implemented steps, there is nothing in the claims themselves that
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`foreclose them from being performed by a human, mentally or with pen and paper.”).
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`Because the ’610 patent falls into the category of “analyzing information by steps
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`people go through in their minds, or by mathematical algorithms, without more,” it follows
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`that the ’610 patent is abstract in nature. Elec. Power, 830 F.3d at 1354; see also
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`CyberSource, 654 F.3d at 1373. Rather than “focus[ing] on a specific means or method,”
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`the ’610 claims are “directed to a result or effect that is the abstract idea and merely
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`invokes generic processes and machinery.” Two-Way Media, 874 F.3d at 1336.
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`The Court’s construction of the claim term “throughput of a communication
`
`channel” to mean the “number of pending transmission requests over a communication
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`channel” does not make it less abstract. Instead, the patent simply uses pending
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`transmission requests as another parameter for selecting a compression algorithm. This
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`does not change, however, that the ’610 patent claims merely the selection of a
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`compression algorithm based upon various properties, which is an abstract idea
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`regardless of what the selection is based upon. Centuries old Morse code is an example
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`of a compression algorithm selected based on the throughput of the telegraph system.5
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`In sum, the ’610 patent claims no more than the abstract idea of selecting a
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`compression method, and thus, the ’610 patent meets the first part of the Alice test.
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`B. Alice Step 2: The ’610 Patent Lacks an Inventive Concept to Save It
`from Being Ineligible
`
`Step 2 of the Alice test examines whether the patent includes an “inventive
`
`concept” that adds “significantly more” to the patent than the abstract idea itself. Alice,
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`573 U.S. at 217-18. The ’610 patent presents nothing more than the abstract idea of
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`selecting a method of data compression. The claims lack any hardware requirements that
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`
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`5 Realtime might argue that the Court’s construction of “data block” to mean “a single
`unit of data, which may range in size from individual bits through complete files or
`collection of multiple files,” Dkt. 151 at 26, somehow renders the claims patent eligible.
`But that argument was previously dismissed by the Federal Circuit. See Intell. Ventures,
`850 F.3d at 1340 (limiting a claimed invention to a technological environment (the digital
`domain) for application of the underlying abstract concept (data compression), “do[es]
`not make an abstract concept any less abstract under step one [of Alice]”).
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`tie Realtime’s claims to a particular device. Nor do the claims arrange the claim limitations
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`in such a way that “significantly more” exists beyond the abstract idea itself. (See Ex. 1
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`(Bovik Decl.) ¶¶ 15-23.) Case after case holds that this is not enough to confer eligibility.
`
`As the Supreme Court held in Alice, the “transformation into a patent-eligible
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`application requires more than simply stating the abstract idea while adding the words
`
`‘apply it.’” 573 U.S. at 221 (quoting Mayo Collaborative Servs. v. Prometheus Lab’ys, Inc.,
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`566 U.S. 66, 72 (2012)). In other words, “[i]f a claim’s only ‘inventive concept’ is the
`
`application of an abstract idea using conventional and well-understood techniques, the
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`claim has not been transformed into a patent-eligible application of an abstract idea.” BSG
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`Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1290-91 (Fed. Cir. 2018).
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`The ’610 patent claims the function of “selecting a compression scheme based on
`
`characteristics of the digital data being compressed,” (see Dkt. 151 at 2), not a
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`technological solution for doing so. (Ex. 1 (Bovik Decl.) ¶ 16). The asserted claims recite
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`generic, result-oriented functions with no limiting detail to confine the claims to any
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`concrete embodiment of these functions, no particular encoder structure, no inventive
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`compression techniques, and no innovative means of storage or transmission. The only
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`claimed structures use generic terms like “controller” and “data compression system.”
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`E.g., ’610 pat. at cls. 9, 25. Likewise, the dependent claims cover standard processes like
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`“storing,” or additional attributes of “compressing.” Id. at cls. 2, 6. “The purely functional
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`nature of the claim confirms that it is directed to an abstract idea, not to a concrete
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`embodiment of that idea.” Affinity Labs v. Amazon.com, 838 F.3d 1266, 1269 (Fed. Cir.
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`2016); Elec. Power Grp., 830 F.3d at 1356 (This “essentially result-focused, functional
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`character of claim language [is] a frequent feature of claims held ineligible . . . .”); see
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`also Ex. 1 (Bovik Decl.) ¶¶ 15, 22.
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`At the Rule 12 stage, Realtime argued that several limitations of the ’610 claims
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`were “transformative,” but none rises to the level of rendering the claims eligible. (Dkt. 55
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`at 12). Realtime pointed to “asymmetric compressors,” but the ’610 patent admits these
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`are well-known prior art techniques such as “dictionary-based compression schemes
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`such as Lempel-Ziv.” (’610 pat. at 10:3-4). Prior art concepts do not confer § 101 eligibility,
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`and “asymmetric” routines are merely a field of use limitation directed to a class of prior
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`art compression algorithms. (See Ex. 1 (Bovik Decl.) ¶¶ 20-21). See Mayo, 566 U.S. at
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`84 (“limiting an abstract idea to one field of use . . . did not make the concept patentable”);
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`SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1169 (Fed. Cir. 2018) (“[L]imitation of
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`the claims to a particular field of information . . . does not move the claims out of the realm
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`of abstract ideas.”). Similarly, Realtime pointed to recitations of “video or audio data” and
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`a “communication channel.” These limitations, again, merely limit the claim to a particular
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`field of use, which does not render it patentable. Id.
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`Realtime’s invocation of generic computer-based restrictions—i.e., the limitations
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`relating to “data blocks,” “throughput,” and a “communication channel”—also do not
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`imbue an inventive concept. See buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355
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`(Fed. Cir. 2014) (“That a computer receives and sends the information over a network-
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`with no further specification-is not even arguably inventive.”). For example, the
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`requirement that selection of a compression algorithm is based on a “communication
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`channel” does not limit the invention to any specific hardware required for compression.
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`Indeed, Realtime’s infringement expert also admitted that according to the ’610 patent,
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`expectations for the communication channel exist in the engineer’s head, not in software.
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`(Ex. 5 (Mitzenmacher Dep. Tr.) at 94:9-95:12; see also Ex. 1 (Bovik Decl.) ¶¶ 18, 21).
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`The construction of “throughput of a communication channel” to mean the “number
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`of pending transmission requests over a communication channel” does not transform the
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`abstract idea of compression into a patent-eligible invention. (Dkt. 151 at 26). This
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`construction identifies the only parameter the ’610 patent offers for evaluating a
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`communication channel. Merely adding
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`in one more parameter—related
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`to a
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`communication channel—does not limit the claims to specific hardware that could confer
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`patent eligibility. Intell. Ventures v. Cap. One, 850 F.3d at 1367 (“And while the claims
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`recite budgeting using a ‘communication medium,’ that limitation does not render the
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`claims any less abstract.”); Ex. 1 (Bovik Decl.) ¶ 18). The same is true with the Court’s
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`construction of “data block” to mean “a single unit of data, which may range in size from
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`individual bits through complete files or collection of multiple files.” Data storage is an
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`ancient concept that the Federal Circuit holds does not confer patent eligibility. See
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`Content Extraction, 776 F.3d at 1348 (holding data storage is an abstract idea that
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`involves “well-understood, routine, and conventional activit[y]”).
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`Ultimately, the ’610 patent claims merely state “functions in general terms, without
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`limiting them to technical means for performing the functions that are arguably an
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`advance over conventional computer and network technology.” Elec. Power, 830 F.3d at
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`1351. Thus, there is nothing in the ’610 patent indicating an inventive concept under Alice
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`step 2 that would convert the abstract idea into a patentable invention. The Federal Circuit
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`routinely rejects these results-focused claims as “do[ing] no more than describ[ing] a
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`desired function or outcome, without providing any limiting detail that confines the claim
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`to a particular solution.” Affinity Labs, 838 F.3d at 1269 (invalidating claims to a result with
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`“no restriction on how the result is accomplished”).
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`C. Other Courts Have Determined Realtime’s Closely Related ’535
`Patent Fails the Alice Eligibility Test
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`Two tribunals have concluded that claims of the ’535 patent—which shares the
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`same specification and drawings with the ’610 patent and which Realtime recently
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`withdrew from this case—are ineligible under § 101. Comparing the claims of the ’610
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`and ’535 patents—with bolding to track similar lang