Case 1:17-cv-02097-RBJ Document 71 Filed 03/05/18 USDC Colorado Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Case No. 1:17-cv-02097-RBJ
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`Plaintiff,
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`v.
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`REALTIME ADAPTIVE STREAMING
`LLC,
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`SLING TV L.L.C.,
`SLING MEDIA, L.L.C.,
`DISH NETWORK L.L.C.,
`DISH TECHNOLOGIES L.L.C. AND
`ARRIS GROUP, INC.,
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`Defendants.
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`PLAINTIFF REALTIME ADAPTIVE STREAMING LLC’S NOTICE OF
`SUPPLEMENTAL AUTHORITY REGARDING DEFENDANTS’ MOTION TO
`DISMISS (D.I. 47) / MOTION FOR JUDGMENT ON THE PLEADINGS (D.I. 48)
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`Case 1:17-cv-02097-RBJ Document 71 Filed 03/05/18 USDC Colorado Page 2 of 7
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`Plaintiff Realtime Adaptive Streaming LLC (“Realtime”) respectfully submits this Notice
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`to bring to the Court’s attention two recent, precedential Federal Circuit opinions: Berkheimer v.
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`HP Inc., 881 F.3d 1360 (Fed. Cir. Feb. 8, 2018) (Ex. A) and Aatrix Software, Inc. v. Green Shades
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`Software, Inc., -- F.3d --, 2018 WL 843288 (Fed. Cir. Feb. 14, 2018) (Ex. B). These opinions
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`provided significant additional guidance on the proper standard for patent-eligibility under §101,
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`and further compel a denial of Defendants’ motions (D.I. 47 and D.I. 48).
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`In Berkheimer, the Federal Circuit confirmed that any Alice step 2 analysis involves
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`underlying factual issues. 881 F.3d at 1368-69. Specifically, “[t]he question of whether a claim
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`element or combination of elements is well-understood, routine and conventional to a skilled
`artisan in the relevant field is a question of fact.” Id.1 As to that fact question, the court made clear
`that “[t]he mere fact that something is disclosed in a piece of prior art does not mean it was well-
`understood, routine, and conventional.” Id. And finally, the court confirmed that “any fact, such
`as this one, that is pertinent to the invalidity conclusion must be proven by clear and convincing
`evidence.” Id. After reviewing the intrinsic record, the court held that “[t]he improvements in the
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`specification, to the extent they are captured in the claims, create a factual dispute regarding
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`whether the invention describes well-understood, routine, and conventional activities.” Id. The
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`district court committed legal error in granting summary judgment despite this factual dispute. Id.
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`In Aatrix Software, the court applied these principles to vacate a district court's §101 ruling
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`on a Rule 12(b)(6) motion. 2018 WL 843288 at *6. The court held that “patent eligibility can be
`determined at the Rule 12(b)(6) stage … only when there are no factual allegations that, taken as
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`true, prevent resolving the eligibility question as a matter of law.” Id. at *2. Moreover, “sources
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`properly considered on a motion to dismiss [include] the complaint, the patent, and materials
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`subject to judicial notice.” Id. at *5. The court then reviewed those sources and held that the district
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`court erred in granting the motion to dismiss because plaintiff’s “allegations at a minimum raise
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`1 All emphasis added, unless otherwise stated.
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`Case 1:17-cv-02097-RBJ Document 71 Filed 03/05/18 USDC Colorado Page 3 of 7
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`factual disputes underlying the §101 analysis, such as whether the claim term ‘data file’ constitutes
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`an inventive concept, alone or in combination with other elements.” Id. at *4-5.
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`The Aatrix court did not end its analysis there. The court also found that the district court
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`abused its discretion in denying leave to amend complaint. In remanding, the court expressly
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`allowed the amended complaint, holding that, “[v]iewed in favor of [plaintiff], as the district court
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`must at the Rule 12(b)(6) stage, the complaint alleges that the claimed combination improves the
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`functioning and operation of the computer itself. These allegations, if accepted as true, contradict
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`the district court’s conclusion that the claimed combination was conventional or routine.” Id.
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`Applying the Federal Circuit’s guidance in Berkheimer and Aatrix Software further compel
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`denial of Defendants’ motions because the intrinsic record, at a minimum, raise factual disputes.
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`The asserted patents claim unconventional technological solutions, namely, the combination of (1)
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`asymmetric compressors, (2) two or more compressors, (3) selecting compressor based on
`parameter such as throughput of a communication channel, and/or (4) access profile.2 Per the
`intrinsic record, the unconventional solutions recited in the claims solve the problems in the state
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`of the art at the time of the invention. Those problems include, to name a few:
`• “[D]ata storage and retrieval bandwidth limitations” ‘535 patent at 1:61-62;
`• “[M]agnetic disk mass storage devices currently employed in a variety of [] computing
`applications suffer from significant seek-time access delays along with profound
`read/write data rate limitations.” Id. at 2:58-61; and
`• “[T]he compression ratio to encoding and decoding speed achieved.” Id. at 4:57-60.
`In applying compression, the patentees further recognized that:
`• “What is not apparent from these algorithms, that is also one major deficiency within
`the current art, is knowledge of their algorithmic efficiency.” Id. at 5:5-10;
`• “[A] compromise between efficient data storage, access speed, and addressable data
`space.” Id. at 6:39-42;
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`2 See, e.g., ‘535 patent cl. 1 (“plurality of access profiles,” “asymmetric data compression”) & cl.
`15 (“asymmetric compressors,” “plurality of compressors”); ‘610 patent cl. 1 (“plurality of
`compression algorithms,” “asymmetric” compression, selecting compression based on
`“throughput of a communication channel”).
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`Case 1:17-cv-02097-RBJ Document 71 Filed 03/05/18 USDC Colorado Page 4 of 7
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`• “[F]ile systems are not able to randomly access compressed data in an efficient
`manner.” Id. at 6:51-53; and
`• “Competing requirements of data access bandwidth, data reliability/redundancy, and
`efficiency of storage space are encountered.” Id. at 7:41-45.
`After describing these technological problems, the patents confirm that “[t]hese and other
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`limitations within the current art are solved with the present invention.” Id. at 7:46-47. And the
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`remainder of the patents make clear that the patented solutions are unconventional.
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`For example, the inventors recognized that “a system and method that would provide
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`dynamic modification of compression system parameters so as to provide an optimal balance
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`between execution speed of the algorithm (compression rate) and the resulting compression ratio,
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`is highly desirable.” Id. at 1:56-60; see also id. at 9:55-59. In other words, this dynamically
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`modified compression system—which can use two or more compressors and selects compression
`based on “throughput of a communication channel”—was unconventional. As another example,
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`the inventors of the Fallon patents also recognized the unconventional effect of using asymmetrical
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`compression in specific situations. See id. at 12:14-35. In short, the claimed solutions (e.g.,
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`asymmetric compressors, two or more compressors, selecting compressor based on throughput of
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`a communication channel) improve the functioning of a computer—e.g., increase the capacity of
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`a computer system to store or transfer data more efficiently in a flexible way.
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`But there is more. The novel and unconventional aspects are further confirmed by the
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`intrinsic patent file histories. For example, in granting patent issuance, the USPTO stated that “the
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`claimed subject matter in claims is allowable because the arts of record fail to teach or fairly
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`suggest in combinations” recited in the claims, including, e.g., “asymmetric compressors,”
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`“plurality of compressors,” “compression routing … depend[] on the throughput,” and/or “access
`profile.” Ex. C (‘535 FH, Notice of Allowability, July 22, 2014) at 6-8.3 The inclusion of these
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`3 Realtime respectfully requests the Court to take judicial notice of the file histories of the asserted
`patents, as the facts are part of the public record not subject to any reasonable dispute. See Aatrix,
`2018 WL 843288 at *5 (“[S]ources properly considered on a motion to dismiss [include] the
`complaint, the patent, and materials subject to judicial notice.”); Fed. R. Evid. 201(b).
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`facts are even more compelling because “setting forth of reasons for allowance is not mandatory
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`on the examiner’s part.” MPEP §1302.14. The intrinsic record confirms that the claims improve
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`computer capabilities, and that they recite unconventional solutions. At the very least, they raise
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`factual issues on these points. Applying Berkheimer and Aatrix Software, these factual issues
`preclude dismissal and, thus, Defendants’ motions must be denied.4
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`Dated: March 5, 2018
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`Respectfully submitted,
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`/s/ C. Jay Chung
`Marc A. Fenster (CA SBN 181067)
`Reza Mirzaie (CA SBN 246953)
`Brian D. Ledahl (CA SBN 186579)
`C. Jay Chung (CA SBN 252794)
`Philip X. Wang (CA SBN 262239)
`RUSS AUGUST & KABAT
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, CA 90025
`(310) 826-7474
`mfenster@raklaw.com
`rmirzaie@raklaw.com
`bledahl@raklaw.com
`jchung@raklaw.com
`pwang@raklaw.com
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`Eric B. Fenster (CO Atty Reg # 33264)
`ERIC B. FENSTER, LLC
`1522 Blake Street, Suite 200
`Denver, CO 80202
`(303) 921-3530
`Eric@fensterlaw.net
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`Attorneys for Plaintiff
`Realtime Adaptive Streaming LLC
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`4 Should the Court be inclined to grant dismissal, Realtime respectfully requests that dismissal be
`without prejudice to Realtime amending the complaint because “there certainly [are] allegations
`of fact that, if [plaintiff’s] position were accepted, would preclude the dismissal.” Aatrix, 2018
`WL 843288 at *3.
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`Case 1:17-cv-02097-RBJ Document 71 Filed 03/05/18 USDC Colorado Page 7 of 7
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`CERTIFICATE OF SERVICE
`I hereby certify that the foregoing document was served on all counsel of record via
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`electronic service on March 5, 2018.
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`/s/ C. Jay Chung
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