Case 1:17-cv-02097-RBJ Document 47 Filed 12/06/17 USDC Colorado Page 1 of 18
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`
`Civil Action No. 1:17-cv-02097
`
`REALTIME ADAPTIVE STREAMING, LLC
`
`Plaintiff,
`
`v.
`
`SLING, TV L.L.C.,
`SLING MEDIA, INC.,
`SLING MEDIA, L.L.C.,
`ECHOSTAR TECHNOLOGIES L.L.C.,
`DISH NETWORK, L.L.C., and ARRIS
`GROUP, INC.,
`
`
`Defendants.
`
`
`
`MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(6)
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`
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`Defendants DISH Network L.L.C. (“DISH”), EchoStar Technologies L.L.C.
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`(“EchoStar”), and ARRIS Group, Inc. (“ARRIS”) move to dismiss Realtime Adaptive
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`Streaming, L.L.C.’s (“Realtime’s”) complaint under Federal Rule of Civil Procedure 12(b)(6).
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`Dismissal is appropriate because the asserted patents are directed to ineligible subject matter
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`under Section 101 of the Patent Act. 35 U.S.C. § 101.
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`I.
`
`INTRODUCTION
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`The Supreme Court has held that patents directed to abstract concepts, or to the mere
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`implementation of standard techniques using a computer, are not eligible for patent protection.
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`Alice Corp. Pty. v. CLS Bank Int’l, 134 S. Ct. 2347, 2354 (2014). Realtime’s asserted patents
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`claim the well-known and abstract concept of selecting a compression scheme based on
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`characteristics of the data being compressed. “Compression” refers to the simple concept of
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`making something smaller. In computing, compression can refer to, for example, reducing the
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`size of a file. Humans, however, have performed compression ever since the advent of the
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`printed word—using abbreviations and single words to communicate large and complex
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`concepts. The bottom line is that compression in and of itself is an abstract idea, and Courts
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`have recognized that such techniques predate computer or software technology.
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`The notion of using different compression schemes to compress different types of
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`information is no less abstract. Humans—using pen and paper—routinely use different
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`compression schemes to reduce the size of different types of information. Dates like January 1,
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`2018 become 1/1/2018, large numbers like 1,000,000 become 1x106, and “the geographic area in
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`which I was born and grew up” becomes “hometown.” Lawyers certainly are no strangers to
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`compression. In fact, lawyers wrote an entire book, the Bluebook, identifying a compression
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`scheme for every type of information a lawyer could dream of (e.g., “F.3d,” “U.S.,” “Id.,” etc.).
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`While the above examples may appear simple, Realtime’s claimed compression
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`functionality is just as simple. The reason for this is straightforward—Realtime did not invent a
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`new compression algorithm and its asserted patents do not purport to limit themselves to any
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`improvement upon a specific compression algorithm. Further, Realtime’s asserted patents do not
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`specify a particular technological way to select from amongst the myriad of different
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`compression algorithms it did not invent. The claims simply speak of the abstract idea of
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`compression, and the only other detail in the claims simply sets forth a desired user environment
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`(i.e., audio and video data over a generic communication channel).
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`Realtime’s asserted patents are ineligible for patent protection because they are directed
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`to an abstract idea and fail to include an inventive concept that would transform them into a
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`patent-eligible invention. The courts recognize that patent eligibility is a threshold matter in any
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`patent case, and Realtime’s suit should be dismissed under Rule 12(b)(6).
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`II.
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`FACTUAL BACKGROUND
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`A. Procedural Background
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`Realtime Data L.L.C. originally filed this case on August 31, 2017, claiming that Sling
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`Media L.L.C. and Sling T.V. L.L.C. infringed U.S. Patents 8,867,610 (“the ’610 Patent”) and
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`8,934,535 (“the ’535 Patent”) (collectively, “the Asserted Patents”), as well as a third patent.
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`(Dkt. No. 1). In an amended complaint, Realtime substituted itself for Realtime Data L.L.C. and
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`dropped the third patent. (Dkt. No. 12). And finally, in its latest amended complaint, Realtime
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`added DISH, EchoStar and ARRIS. (Dkt. No. 32).
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`Realtime broadly asserts infringement based on compatibility with the H.264 video
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`compression standard, though its patents do not teach or claim to have invented any particular
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`compression technology or algorithm.
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`B. The Asserted Patents
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`The Asserted Patents share a common specification and are in the same patent family.
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`The Asserted Patents’ common specification admits that compression was a well-known concept.
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`Per the Asserted Patents, “[d]ata compression is the process of representing data with a smaller
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`amount of bits. Data compression is widely used to reduce the amount of data required to
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`process, transmit, or store a given quantity of information.” ’610 Patent at 2:44-46.
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`The shared specification also acknowledges that encoding algorithms (which perform the
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`compression) were well-known in the prior art. Id., 1:31-35. It also provides various examples
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`of such algorithms, including “dictionary-based compression,” “Lempel-Ziv,” and “Huffman”
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`encoding. Id., 10:1-10. Encoding refers to the actual process of turning uncompressed data into
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`compressed data. The Asserted Patents, however, generally use the terms synonymously. See
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`id., 4:29-33 (“Lossy data compression techniques provide for an inexact representation of the
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`original uncompressed data such that the decoded (or reconstructed) data differs from the
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`original unencoded/uncompressed data.”)
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`The ’610 Patent, entitled “System and Methods for Video and Audio Data Distribution,”
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`discloses a method of using one or more compression algorithms to compress data more
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`efficiently. Claim 1 is the only claim that Realtime calls out in the complaint:
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`1. A method, comprising:
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`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
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`compressing the at least the portion of the data block with the selected compression
`algorithm after selecting the one or more, compression algorithms.
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`’610 Patent at 20:1-13.
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`The ’535 Patent, entitled “Systems and Methods for Video and Audio Data Storage and
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`Distribution” also focuses on using one or more compressors on a given data set. Claim 15 is the
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`only claim specifically asserted in the compliant. As shown below, the ’535 Patent adds an
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`additional storage step that is not present in claim 1 of the ’610 Patent:
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`15. A method, comprising:
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`determining a parameter of at least a portion of a data block;
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`selecting one or more asymmetric compressors from among a plurality of
`compressors based upon the determined parameter or attribute;
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`compressing the at least the portion of the data block with the selected one or more
`asymmetric compressors to provide one or more compressed data blocks; and
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`storing at least a portion of the one or more compressed data blocks.
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`’535 Patent at 20:29-41.
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`Claim 1 of the ’610 Patent and claim 15 of the ’535 Patent are representative of the ’610
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`Patent claims and ’535 Patent claims, respectively. Each claim of the Asserted Patents selects
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`one or more generic compression algorithms, the way anyone would select a tool to perform a
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`particular task. See, e.g., Content Extraction and Transmission LLC v. Diebold, Inc. et al., 776
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`F.3d 1343, 1359, (Fed. Cir. 2014) (finding claim representative of all patent claims where all the
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`claims are substantially similar and linked to the same abstract idea). Realtime’s complaint itself
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`rests on the premise that these claims are representative for purposes of infringement. (Dkt. No.
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`32, Realtime’s Second Amended Complaint at ¶ 34 (“Defendants also directly infringe … other
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`claims of the ’610 Patent, for similar reasons … with respect to Claim 1 of the ’610 Patent”); id.
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`at ¶ 57 (same with regard to the ’535 Patent)). It necessarily follows that these claims should
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`also be representative for purposes of patent eligibility.1
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`
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`1 To the extent that Realtime alleges that unidentified claims from the Asserted Patents are
`sufficiently distinct from claim 1 of the ’610 Patent and claim 15 of the ’535 Patent, then
`Realtime’s complaint does not contain “enough facts to state a claim to relief that is plausible on
`its face” as to those patent claims. Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177
`(10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In other
`words, if Realtime contends that a particular claim includes a feature that sets it apart from the
`representative claims, Realtime has not pled sufficient facts regarding that feature that “allows
`the court to draw the reasonable inference that the defendant is liable for the misconduct
`alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Simply put, Realtime cannot remedy one
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`III. LEGAL STANDARD
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`A. Patent Ineligibility Is Ripe for Consideration Under Rule 12
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`When patent claims on their face are directed to an abstract idea, the Federal Circuit
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`recommends deciding the issue on a Motion to Dismiss. See, e.g., FairWarning IP, LLC v. Iatric
`
`Sys., Inc., 839 F.3d 1089, 1092 (Fed. Cir. 2016). Indeed, patent eligibility under § 101 is a
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`question of law properly addressed as a “threshold test.”2 In re Roslin Inst. (Edinburgh), 750
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`F.3d 1333, 1335 (Fed. Cir. 2014). And failure to recite statutory subject matter should “be
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`exposed at the point of minimum expenditure of time and money by the parties and the court.”
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`Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007) (quotation and citation omitted).
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`B. The Supreme Court’s Alice Test
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`The two-part Alice test controls the § 101 eligibility analysis. Alice Corp. Pty. v. CLS
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`Bank Int’l, 134 S. Ct. 2347, 2354 (2014). First, the court must determine “whether the claims at
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`issue are directed to a patent-ineligible concept,” such as an abstract idea. Id. at 2355. The
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`“directed to” inquiry examines claims to determine whether “their character as a whole is
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`directed to excluded subject matter.” Internet Patents Corp. v. Active Network, Inc. 790 F.3d
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`1343, 1346 (Fed. Cir. 2015). While no conclusive rule determines what is abstract, both the
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`Federal Circuit “and the Supreme Court have found it sufficient to compare claims at issue to
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`those already found to be directed to an abstract idea in previous cases.” Id. at 1334. Where the
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`subject claims relate to computers, the relevant question is whether “the focus of the claims is on
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`the specific asserted improvement in computer capabilities” as opposed to “a process that
`
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`improperly pled claim with another. Am. Well Corp. v. Teladoc, Inc., 191 F. Supp. 3d 135, 140
`(D. Mass. 2016) (holding that defendant did not have the burden to challenge eligibility of claims
`for which plaintiff has not alleged infringement).
`
` 2
`
` Rule 12 motions do not require evidentiary determinations outside of the pleadings, thus an
`evidentiary standard of proof does not apply. Therefore, the presumption of validity, 35 U.S.C. §
`282 is inapplicable here. Crypto Research, LLC v. Assay Abloy, Inc., 236 F. Supp. 3d 671, 678-
`79 (E.D.N.Y. 2017) (refusing to apply clear and convincing standard to a § 101 analysis on a
`motion to dismiss).
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`qualifies as an ‘abstract idea’ for which computers are invoked merely as a tool.” Id. at 1336. In
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`other words, if the patent merely implements a well-known concept using a computer, this
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`“automation” of a prior process does not qualify for patent protection.
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`If the court concludes that the claims are directed to an abstract idea in Step 1, then the
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`court must ask, “[w]hat else is there in the claims before us?” Alice, 134 S. Ct. at 2356 (quoting
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`Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1297 (2012)). To answer
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`this question, the court must “consider the elements of each claim both individually and ‘as an
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`ordered combination’ to determine whether the additional elements ‘transform the nature of the
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`claim’ into a patent-eligible application.” Id. (quoting Mayo, 566 U.S. at 79). These “additional
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`elements” must be “more than simply stating the abstract idea while adding the words ‘apply it.’”
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`Id. at 2357 (quoting Mayo, 132 S. Ct. at 1294). Moreover, “well-understood, routine,
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`conventional activity” or technology—including general-purpose computers and computer
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`networks—do not provide an “inventive concept.” Id. at 2357-59 (quoting Mayo, 132 S. Ct. at
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`1294). “Thus, if a patent’s recitation of a computer amounts to a mere instruction to implement
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`an abstract idea on a computer, that addition cannot impart patent eligibility.” Id. at 2358.
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`C. Claim Construction Is Not a Prerequisite to Dismissal under § 101
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`Claim construction is not required before deciding § 101 eligibility. Indeed, the Federal
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`Circuit has stated, “we perceive no flaw in the notion that claim construction is not an inviolable
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`prerequisite to a validity determination under § 101.” Bancorp Services, L.L.C. v. Sun Life
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`Assur. Co. of Canada (U.S.), 687 F.3d 1266, 1273 (Fed. Cir. 2012); see also Alice, 134 S. Ct. at
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`2347 (finding subject matter ineligible without performing claim construction).
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`IV. ARGUMENT
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`The Asserted Patents are ineligible as they claim the abstract idea of selecting a
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`compression scheme based on a characteristic of the data requiring compression. This is an
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`abstract idea untethered to any technological solution. Indeed, any human being can choose a
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`compression scheme (e.g., abbreviations or scientific notation) for different types of information
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`either mentally or with pen and paper. And as the remaining claim elements merely restrict the
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`abstract idea to a generic technological environment, (e.g., audio/video data and communication
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`channel) and are void of any particular hardware, the Asserted Patents contain no inventive
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`concept that would transform these claims into a patentable invention.
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`A. Alice Step 1: The Asserted Patents Claim the Abstract Idea of Selecting a
`Compression Algorithm
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`The Asserted Patents boil down to the abstract idea of selecting a compression scheme
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`based on a characteristic of the data requiring compression. The Asserted Patents do this by first
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`looking at the data. See, e.g., ’610 Patent at claim 1 (“determining, a parameter or an attribute …
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`of a data block.”). Upon looking at the data type (i.e., the “parameter” or “attribute”), the
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`Asserted Patents choose the compression scheme to apply. Id. (“selecting one or more
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`compression algorithms . . . based upon the determined parameter or attribute”). Finally, the
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`Asserted Patents compress the data with the selected compression scheme and, sometimes, store
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`the compressed data. Id.; ’535 Patent at claim 15. This is no more inventive than the handyman
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`who chooses a screwdriver or wrench depending on the fastener to be tightened.
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`Post-Alice Federal Circuit precedent makes clear that data compression in and of itself is
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`an abstract idea that is not eligible for patent protection. Compression is the concept of making
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`something smaller; or in a technical sense, reducing the amount of space required to
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`communicate a given piece of information. In other words, compression is a way of changing
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`the form of the information to take up less space. And the Federal Circuit holds that using an
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`algorithm to merely change the form of a particular piece of data is not patent eligible. For
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`example, in RecogniCorp v. Nintendo, the Federal Circuit affirmed an invalidity finding under
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`§ 101 where the patent claimed a method “whereby a user starts with data, codes that data using
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`‘at least one multiplication operation,’ and ends with a new form of data.” 855 F.3d 1322, 1327
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`(Fed. Cir. 2017). The Federal Circuit held that the patent merely recited the abstract concept of
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`“standard encoding and decoding:”
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`This method reflects standard encoding and decoding, an abstract concept long
`utilized to transmit information. Cf. Intellectual Ventures I LLC v. Capital One
`Fin. Corp., 850 F.3d 1332, 1340-41 (Fed. Cir. 2017) (organizing, displaying, and
`manipulating data encoded for human-and machine-readability is directed to an
`abstract concept). Morse code, ordering food at a fast food restaurant via a
`numbering system, and Paul Revere's "one if by land, two if by sea" signaling
`system all exemplify encoding at one end and decoding at the other end.
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`Id. at 1326. The Federal Circuit also held that standard encoding “that started with data, added
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`an algorithm, and ended with a new form of data was directed to an abstract idea.” Id. at 1327.
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`Compression, like encoding, is “an abstract concept long utilized to transmit
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`information.” Id.3 In the simplest sense, both compression and encoding use an algorithm to
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`change the form of the information. As noted above, these two concepts are intrinsically
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`intertwined. Encoding refers to the actual process of turning uncompressed data into compressed
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`data. And while not all encoding results in compression (i.e., a reduction in space), the Asserted
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`Patents use the two concepts interchangeably. See, e.g., ’610 Patent at 4:29-33.
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`At its core, compression is mere data manipulation, which the Federal Circuit deemed
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`unpatentable in RecogniCorp and on several other occasions. See, e.g., Digitech Image Techs.,
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`LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1350-51 (Fed. Cir. 2014) (taking two data sets
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`and combining them into a single data set by “organizing information” and “manipulat[ing]
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`existing information” is an abstract idea); Intellectual Ventures I LLC v. Capital One Fin. Corp.,
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`850 F.3d 1332, 1340-41 (Fed. Cir. 2017) (claims directed to organizing, displaying, and
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`
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`3 By no means do Defendants suggest that all compression algorithms are patent ineligible. The
`Federal Circuit has noted in dicta, for example, that “an improved, particularized method of
`digital data compression” would not be abstract. DDR Holdings, LLC v. Hotels.com, L.P., 773
`F.3d 1245, 1259 (Fed. Cir. 2014). But while a particularized digital data compression algorithm
`may be rooted in computer technology, the Asserted Patents do not disclose, much less recite, a
`“particularized” compression algorithm. The claims call for any generic compression algorithm
`and do not tie the compression to any particular computer technology.
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`manipulating data encoded for human-and machine-readability ineligible); see also Gottschalk v.
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`Benson, 409 U.S. 63, 67-68 (1972) (claims describing an algorithm for converting binary
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`numbers to binary coded decimal patent ineligible). Moreover, the Asserted Patent claims’ lack
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`of structure begs the question as to what specific device the Asserted Patents would purport to
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`improve in the first place. The Asserted Patent claims are untethered to a specific, machine,
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`station, server, display, or other meaningful structural device whereas even the RecogniCorp
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`claims required a “first” and “second” “display,” yet were still ineligible. 855 F.3d at 1324.
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`Moreover, the Asserted Patents’ selection of a compression scheme based on a
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`characteristic of the data requiring compression makes the idea no less abstract. The idea of the
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`Asserted Patents—choosing between different compression schemes based on the type of data to
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`be processed—is merely a mental process that can be executed in the human brain or on paper.
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`For example, consider this hypothetical passage of text:
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`The speed of light in a vacuum is 299,792,458 meters per second. For many
`practical purposes, light and other electromagnetic waves will appear to propagate
`instantaneously, but for long distances and very sensitive measurements, their finite
`speed has noticeable effects. For example, sunlight takes 499 seconds to travel the
`average distance between the sun and earth, 149,597,870,700 meters, which is also
`known as an Astronomical Unit.
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`A science editor who wishes to shorten and improve the readability of the passage could apply a
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`set of compression schemes or algorithms to the text, leading to the following version (with
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`changes in bold):
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`C is 3×108 m/s. For many practical purposes, light and other electromagnetic waves
`will appear to propagate instantaneously, but for long distances and very sensitive
`measurements, their finite speed has noticeable effects. For example, sunlight takes
`about eight minutes to travel the average distance between the sun and earth,
`1.5x1011 m (1 AU).
`
`By applying various compression schemes, the editor has transformed the original paragraph into
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`a compressed paragraph that is one line shorter, conveys the same information, and improves
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`readability to the relevant audience.
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`The editor, unknowingly, is practicing the same abstract idea claimed by the Asserted
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`Patents. The editor analyzes the data just like step 1 of the Asserted Patents. See, e.g., ’610
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`Patent at claim 1 (“determining, a parameter or an attribute of at least a portion of a data block”);
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`’535 Patent at claim 15 (“determining a parameter of at least a portion of a data block”). In the
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`case of the science editor, she would read through the original passage and mentally note
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`parameters or attributes associated with portions of the text, including, for example: that “the
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`speed of light in a vacuum” and “Astronomical Unit” are units with well-recognized symbols;
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`“299,792,458” and “149,597,870,700” are large numbers represented at a higher precision than
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`is necessary for this application; and that “499 seconds” is a unit of time presented in a less than
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`ideal unit for the passage and at greater precision than needed.
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`The editor next selects a compression scheme based on the observed characteristic just
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`like step 2 of the Asserted Patents. See, e.g., ’610 Patent at claim 1 (“selecting one or more
`
`compression algorithms from among a plurality of compression algorithms to apply to the at
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`least the portion of the data block based upon the determined parameter or attribute”); ’535
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`Patent at claim 15 (“selecting one or more asymmetric compressors from among a plurality of
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`compressors based upon the determined parameter or attribute.”).4 To continue the example, the
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`editor applies the compression schemes: “convert well known units to their scientific symbol” to
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`the units; “convert really large numbers to scientific notation” to the large numbers; and “convert
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`
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`4 Claim 1 of the ’610 Patent’s additional consideration for the “throughput of a communication
`channel” when selecting a “compression algorithm” does not affect the analysis as it is a mere
`field of use limitation and is not remotely inventive (as set forth under Alice Step 2 below). See
`Section I.B. But even if evaluated under Alice Step 1, consideration for the “throughput of a
`communication channel” does not make the claim any less abstract. To revisit the editor
`example, the editor would certainly take into account the means by which she was
`communicating the information—applying different criteria to text for inclusion in a textbook
`(with presumably no space constraints) versus text for inclusion in an op-ed (with significant
`space constraints). Moreover, forms of compression like Morse code—which predates
`Realtime’s patents by more than a century—are examples of compression algorithm selected
`based on the throughput of the telegraph system.
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`the large number of seconds to an approximate amount of minutes” to the time sample.
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`Finally, the editor applies the final step of the Asserted Patents by applying the selected
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`rules to the portions of the data. See, e.g., ’610 Patent at claim 1 (“compressing the at least the
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`portion of the data block with the selected compression algorithm after selecting the one or more,
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`compression algorithms”); ’535 Patent at claim 15 (“compressing the at least the portion of the
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`data block with the selected one or more asymmetric compressors to provide one or more
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`compressed data blocks.”). There, the editor would convert “the speed of light in a vacuum” and
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`“Astronomical Unit” to their recognized symbols “C” and “A.U.”; and convert “299,792,458”
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`and “149,597,870,700” to their scientific notation values of “3×108” and “1.5x1011.”
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`In sum, the Asserted Patents’ selection of a compression scheme based on the
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`characteristic of data requiring compression is nothing more than an abstract idea that has been
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`conducted mentally or on pen and paper for years before Realtime’s “invention.” Because the
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`Asserted Patents fall into the category of “analyzing information by steps people go through in
`
`their minds, or by mathematical algorithms, without more,” there is no doubt that the Asserted
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`Patents are abstract in nature. Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed.
`
`Cir. 2016); see also CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir.
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`2011) (“such a method that can be performed by human thought alone is merely an abstract idea
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`and is not patent-eligible under § 101”). These claims are abstract because rather than
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`“focus[ing] on a specific means or method,” they are “directed to a result or effect that is the
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`abstract idea and merely invokes generic processes and machinery,” i.e., choosing a compression
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`algorithm based on a characteristic of the data, rather than a specific way of compressing data.
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`Two-Way Media Ltd. v. Comcast Cable Commc’n, LLC, 874 F.3d 1329, 1336 (Fed. Cir. 2017).5
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`
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`5 Unlike cases such as Enfish or Visual Memory, the claims here are not an “improvement in the
`functioning of a computer.” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1338 (Fed. Cir.
`2016); see also Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1259 (Fed. Cir. 2017)
`(claims “directed to an improved computer memory system, not to the abstract idea of
`categorical data storage” are not abstract). Here the claims do not claim a specific algorithm for
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`Case 1:17-cv-02097-RBJ Document 47 Filed 12/06/17 USDC Colorado Page 13 of 18
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`Moreover, should Realtime argue that its claims require digital data6 and thus offer a
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`specific improvement in computer capabilities, that position has already been dismissed by the
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`Federal Circuit. For example, Federal Circuit’s Intellectual Ventures decision makes clear that
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`limiting a claimed invention to a technological environment—the digital domain—for
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`application of the underlying abstract concept—data compression—“do[es] not make an abstract
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`concept any less abstract under step one [of Alice].” See Intellectual Ventures, 850 F.3d at 1340;
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`RecogniCorp, 855 F.3d at 1326 (“organizing, displaying, and manipulating data encoded for
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`human and machine-readability is directed to an abstract concept”) (citing Intellectual Ventures,
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`850 F.3d at 1340-41). And as to any other alleged improvement, Realtime’s claims use
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`compression in the most conventional manner. For example, it is commonplace for human users
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`to select different compression algorithms (e.g., zip, gzip, rar, etc.) based on the type of data
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`(e.g., large video files, smaller audio files, or sensitive documents) to be sent and the type of
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`communication channel (e.g., email, instant message, ftp) for transporting the data. In other
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`words, Realtime’s claims employ computer technology only to do what computers do—carrying
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`out a mental process of optimizing compression for digital data in a conventional way. Thus, the
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`Asserted Patents meet the first part of the Alice test.
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`B. Alice Step 2: The Asserted Patents Lack an Inventive Concept to Transform
`them Into a Patentable-Eligible Invention
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`The remaining Asserted Patent claims, taken individually or as a whole, do not transform
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`Realtime’s abstract idea into patentable subject matter. The claims are void of any hardware
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`detecting relevant characteristics of data, a specific set of useful characteristics, or even any
`specific algorithms for compressing. Rather, the claims are purely aspirational—attempting to
`claim any method for executing that abstract idea on a computer.
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` 6
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` Specific mentions in the claims of video and audio data do not tie the claims to improvements
`in computing capability. Cartoon flipbooks are examples of early video functionality for visual
`representation of moving images, which could be compressed simply by removing particular
`sheets from the flipbook. Relatedly, sheet music is an example of early audio representations,
`which can be compressed through musical notations that instruct the musician to repeat certain
`musical patterns (e.g., tremolo, repeat signs and simile marks).
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`Case 1:17-cv-02097-RBJ Document 47 Filed 12/06/17 USDC Colorado Page 14 of 18
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`requirements that tie Realtime’s claims to a particular device. And the remaining limitations are,
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`at best, field of use limitations that are incapable of performing the necessary transformation.
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`As to claim 1 of the ’610 Patent, it limits the type of data to “video or audio data” and
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`further requires a “communication channel.” Both of these limitations merely limit the claim to
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`a particular field of use, which does not render it patentable. See Mayo, 132 S. Ct. at 1301
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`(limiting abstract idea to field of use did not make it patentable); Digitech Image Techs., LLC,
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`758 F.3d 1344, 1351 (Fed. Cir. 2014) (holding claims ineligible despite inputs such as “measured
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`chromatic stimuli and device response characteristic functions”); Elec. Power, 830 F.3d at 1351
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`(Fed. Cir. 2016) (“[T]he claims do not go beyond requiring the collection, analysis, and display
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`of available information in a particular field, … without limiting them to technical means for
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`performing the functions….”); see also n.4, supra. To the extent such terms even invoke
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`computer-based restrictions, they are by no means inventive. See, e.g., buySAFE, Inc. v. Google,
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`Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (“That a computer receives and sends the information
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`over a network—with no further specification—is not even arguably inventive.”). For example,
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`the claim’s requirement that an encoder selection be based on a “communication channel” does
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`not indicate that the communication channel is necessarily connected to some sort of hardware
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`required for compression. The Asserted Patents fail to claim any inventive structure.
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`Likewise, the additional limitation—that one of the algorithms be “asymmetric”—does
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`not render the claims inventive. Realtime did not invent asymmetric compression. Instead, the
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`’610 Patent discloses well-known asymmetric “dictionary based compression schemes