Case 1:16-cv-00455-RGA Document 24 Filed 10/04/16 Page 1 of 27 PageID #: 1227
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ACCELERATION BAY LLC,
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`ACTIVISION BLIZZARD, INC.
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`Defendant.
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`ACCELERATION BAY LLC,
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`ELECTRONIC ARTS INC.,
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`Defendant.
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`ACCELERATION BAY LLC,
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`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
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`DEFENDANTS’ OPENING BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS
`REGARDING U.S. PATENT NOS. 6,701,344, 6,714,966, AND 6,829,634
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`C.A. No. 16-453 (RGA)
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`C.A. No. 16-454 (RGA)
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`C.A. No. 16-455 (RGA)
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`Plaintiff,
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`v.
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`Plaintiff,
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`Plaintiff,
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`v.
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`v.
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`Defendants.
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` 
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`
`Attorneys for Defendants
`
`

`

`Case 1:16-cv-00455-RGA Document 24 Filed 10/04/16 Page 2 of 27 PageID #: 1228
`
`OF COUNSEL:
`David P. Enzminger
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`WINSTON & STRAWN LLP
`333 S. Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue
`New York, NY 10166
`(212) 294-3510
`
`October 4, 2016
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` 
`
`

`

`Case 1:16-cv-00455-RGA Document 24 Filed 10/04/16 Page 3 of 27 PageID #: 1229
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` 
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES ...................................................................................................... ii
`
`I.
`
`II.
`
`III.
`
`IV.
`
`NATURE AND STAGE OF THE PROCEEDINGS ........................................................1
`
`SUMMARY OF THE ARGUMENT ...............................................................................1
`
`STATEMENT OF FACTS ..............................................................................................4
`
`APPLICABLE LAW .......................................................................................................6
`
`A.
`
`B.
`
`Legal Standard for Motion to Dismiss ..................................................................6
`
`Legal Standard for Patent-Eligible Subject Matter ................................................7
`
`V.
`
`ARGUMENT ..................................................................................................................8
`
`A.
`
`B.
`
`C.
`
`Claim 1 from Each of the ’344, ’966, and ’634 Patents is Representative and
`is Directed to the Same Abstract Idea ...................................................................8
`
`Alice Step 1: The Broadcast Claims are Directed to an Abstract Idea ...................9
`
`Alice Step 2: The Broadcast Claims Lack An Inventive Concept ........................ 13
`
`1.
`
`2.
`
`3.
`
`The Broadcast Claims are Insufficiently Transformative ......................... 13
`
`The Additional Claims Are Also Not Transformative. ............................ 17
`
`The Dependent Broadcast Claims Are Also Not Transformative ............. 18
`
`VI.
`
`CONCLUSION ............................................................................................................. 20
`
`-i-
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`

`

`Case 1:16-cv-00455-RGA Document 24 Filed 10/04/16 Page 4 of 27 PageID #: 1230
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` 
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Affinity Labs of Texas, LLC v. Amazon.Com Inc.,
`No. 2015-2080, 2016 WL 5335502 (Fed. Cir. Sept. 23, 2016) .................................... 13, 15
`
`Affinity Labs of Texas, LLC v. DirecTV, LLC,
`No. 2015-1845, 2016 WL 5335501 (Fed. Cir. Sept. 23, 2016) ...........................9, 11, 12, 18
`
`Alice Corp. Pty. Ltd. v. CLS Bank Int’l,
`134 S. Ct. 2347 (2014) .............................................................................................. passim
`
`Bilski v. Kappas,
`561 U.S. 593 (2010) ........................................................................................................... 7
`
`buySAFE, Inc. v. Google Inc.,
`765 F.3d 1350 (Fed. Cir. 2014) ............................................................................. 14, 18, 19
`
`Callwave Commc’ns, LLC v. AT&T Mobility, LLC,
`No. 12-1701-RGA, 2016 WL 4941990 (D. Del. Sept. 15, 2016) ........................... 10, 12, 15
`
`Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat. Ass’n,
`776 F.3d 1343 (Fed. Cir. 2014) ........................................................................................... 7
`
`Cyber-Source Corp. v. Retail Decisions, Inc.,
`654 F.3d 1366 (Fed. Cir. 2011) ......................................................................................... 18
`
`Cyberfone Sys., LLC v. CNN Interactive Grp., Inc.,
`558 F. App’x 988 (Fed. Cir. 2014) ...................................................................................... 9
`
`Dealertrack, Inc. v. Huber,
`674 F.3d 1315 (Fed. Cir. 2012) ............................................................................... 9, 10, 16
`
`Electric Power Grp., LLC v. Alstom S.A.,
`No. 2015-1778, 2016 WL 4073318 (Fed. Cir. Aug. 1, 2016) ............................................ 11
`
`Enfish, LLC v. Microsoft Corp.,
`822 F.3d 1327 (Fed. Cir. 2016) ............................................................................... 7, 10, 11
`
`Gottschalk v. Benson,
`409 U.S. 63 (1972) ............................................................................................................. 2
`
`Intellectual Ventures I LLC v. Symantec Corp.,
`No. 2015-1769, 2016 WL 5539870 (Fed. Cir. Sept. 30, 2016) ...........................3, 10, 11, 15
`
`-ii-
`
`

`

`Case 1:16-cv-00455-RGA Document 24 Filed 10/04/16 Page 5 of 27 PageID #: 1231
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` 
`
`Inventor Holdings, LLC v. Gameloft, Inc.,
`135 F.Supp.3d 239 (D. Del. 2015) ...................................................................................... 6
`
`IpLearn, LLC v. K12 Inc.,
`76 F.Supp.3d 525 (D. Del. 2014) ...................................................................................... 19
`
`McRO, Inc. v. Bandai Nameco Games Am.,
`No. 2015–1080, __ F.3d __, 2016 WL 4896481 (Fed. Cir. Sept. 13, 2016) ................. 10, 11
`
`OIP Techs., Inc. v. Amazon.Com, Inc.,
`788 F.3d 1359 (Fed. Cir. 2015) ........................................................................................... 6
`
`Parus Holdings, Inc. v. Sallie Mae Bank et al.,
`137 F.Supp.3d 660 (D. Del. 2015) ...................................................................................... 9
`
`Personalized Media Commc’ns, LLC v. Amazon.Com, Inc.,
`161 F. Supp. 3d 325 (D. Del. 2015) .................................................................................... 9
`
`Pragmatus Telecom LLC v. Genesys Telecommunications Labs., Inc.,
`114 F. Supp. 3d 192 (D. Del. 2015) .................................................................................. 10
`
`Sound View Innovations, LLC v. Facebook, Inc.,
`No. 16-116-RGA, 2016 WL 4535345 (D. Del. Aug. 30, 2016) ......................................... 13
`
`Two-Way Media Ltd. v. Comcast Cable Commc’ns,
`Case No. 14-1006-RGA, 2016 WL 4373698 (D. Del. Aug. 15, 2016) ......................... 12, 13
`
`Ultramercial, Inc. v. Hulu, LLC,
`772 F.3d 709 (Fed. Cir. 2014)........................................................................................... 15
`
`Statutes
`
`35 U.S.C. § 101 ............................................................................................................... passim
`
`
`
`-iii-
`
`

`

`Case 1:16-cv-00455-RGA Document 24 Filed 10/04/16 Page 6 of 27 PageID #: 1232
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` 
`
`I.
`
`NATURE AND STAGE OF THE PROCEEDINGS
`
`Defendants Activision Blizzard, Inc., Electronic Arts Inc., Take-Two Interactive
`
`Software, Inc., Rockstar Games, Inc., and 2K Sports, Inc. (collectively, “Defendants”), are each
`
`leading developers, publishers, and distributors of video game products. The currently pending
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`actions against Defendants were filed on June 17, 2016. Defendants have not answered.
`
`Defendants have moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for
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`failure to state a claim as to three of the six asserted patents because those three patents do not
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`claim patent-eligible subject matter under 35 U.S.C. § 101. 1 This is Defendants’ Opening Brief
`
`in support of that motion.
`
`II.
`
`SUMMARY OF THE ARGUMENT
`
`Plaintiff Acceleration Bay LLC (“Acceleration”), through related patent infringement
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`actions, seeks to enforce three patents directed to the computerization of an age-old abstract
`
`method of using message-forwarding to broadcast information among a group of participants.
`
`Message forwarding has long been used to broadcast information where no single participant can
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`send (or is expected to send) the message to all intended recipients. In such cases, where the
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`connections among the participants are “incomplete,” message forwarding has been a traditional
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`and necessary component of broadcasting information to large or dispersed groups. And indeed,
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`society has engaged in this basic practice for centuries to broadcast information through such
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`“incomplete networks” of dispersed participants—whether through spreading news by word of
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`mouth (“Pass the word! Tell your neighbors!”); flags or semaphores to broadcast instructions
`
`                                                             
`1 Plaintiffs have accused Defendants of infringing six patents. Defendants believe that asserted
`claims of the remaining three patents are also invalid under 35 U.S.C. § 101, but that those issues
`may be sharpened during claim construction. Defendants specifically reserve all rights to file
`additional motions challenging whether the other asserted patent claims cover patent-eligible
`subject matter.
`
`-1-
`
`

`

`Case 1:16-cv-00455-RGA Document 24 Filed 10/04/16 Page 7 of 27 PageID #: 1233
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` 
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`through a dispersed naval fleet; a chain letter that requires each recipient to write and send a
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`copy of the letter to a specified number of people; or an organized phone tree for distributing
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`information throughout a group. 2 In each of these cases, message forwarding is used to
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`broadcast a message through an “incomplete network” of participants where no single participant
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`can or is expected to broadcast the message to all of the intended recipients. The
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`computerization of message-forwarding to broadcast information using generic computer
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`equipment is not patent-eligible under Supreme Court precedent, including Alice.
`
`It is a bedrock principle of our patent system that “‘[a]n idea of itself is not patentable.’”
`
`Gottschalk v. Benson, 409 U.S. 63, 67 (1972) (quoting Rubber-Tip Pencil Co. v. Howard, 87
`
`U.S. 498, 507 (1874)). The Supreme Court confirmed this fundamental principle in today’s
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`digital world in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, holding that claims that implement an
`
`abstract idea through the use of generic computer technology are not patent-eligible. 134 S. Ct.
`
`2347, 2358 (2014). Instead, patent claims directed to an abstract idea must include an inventive
`
`concept, which is “sufficient to ensure that the patent in practice amounts to significantly more
`
`than a patent upon the [abstract idea] itself.” Id. at 2355 (internal quotations omitted).
`
`This motion addresses U.S. Patent Nos. 6,701,344 (“the ’344 patent”), 6,714,966 (“the
`
`’966 patent”), and 6,829,634 (“the ’634 patent”) (collectively, “Broadcast Patents”) and, in
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`particular, all claims of the ’344 and ’966 patents, as well as claims 1-18 of the ’634 patent
`
`(collectively, “Broadcast Claims”). Each of the Broadcast Claims recites either the limitation (i)
`                                                             
`2 A chain letter is a letter sent to several persons with a request that each person send copies of
`the letter to an equal number of persons. In the telephone game, players are arranged in a circle
`and one person whispers a message to another, who then passes the message through the circle of
`people. A phone tree is a network of people organized to quickly and easily spread information
`amongst each other. Participants in the phone tree network receive a call with information, and
`then make calls to pass along that information to other participants, who in turn pass that
`information along to still other participants. Each of these are well-known methods of
`communication.
`
`-2-
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`

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`Case 1:16-cv-00455-RGA Document 24 Filed 10/04/16 Page 8 of 27 PageID #: 1234
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` 
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`“each participant sends data that it receives from a neighbor participant to its neighbor
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`participants”;3 (ii) “each participant sends data that it receives from a neighbor participant to its
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`other neighbor participants”4; or (iii) “a broadcast component that receives data from a neighbor
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`participant using the communications network and that sends the received data to its other
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`neighbor participants.”5 The claims also include the statement that the computers and their
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`connections form an “m-regular, incomplete” graph.
`
`The Broadcast Claims do not specify ways—much less inventive ways—of message-
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`forwarding among incomplete networks of participants. The Broadcast Claims claim generic
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`computers connected via known methods for sending and receiving messages using known
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`communication protocols. Thus, the networking requirements of the claims are nothing more
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`than standard implementation details that do not provide any inventive contribution or improve
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`or change the way a computer functions.
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`The specified “m-regular, incomplete” network of the Broadcast Claims also does not
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`save the claims from abstractness or otherwise render them patentable. M-regular, incomplete
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`graphs were well-known in graph theory (a field of mathematics) as well as computer
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`networking. In graph theory, a graph (or network) is “regular” if each participant has the same
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`number (“m”) of neighbors; a graph (or network) is “incomplete” where not all participants in
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`the network are directly connected to all other participants. Figure 1 of the patents shows a
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`“four-regular” incomplete graph. Even the specific “m-regular, incomplete” computer network
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`of the Broadcast Claims was known and studied long before the patents were filed. As the
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`Federal Circuit has repeatedly held, “an abstract idea does not become nonabstract by limiting
`
`                                                             
`3 The ’344 patent, claims 13 and 16; the ’966 patent, claims 13 and 16.
`4 The ’344 patent, claims 1 and 18; the ’966 patent, claim 1; and the ’634 patent, claim 1.
`5 The ’634 patent, claim 10.
`
`-3-
`
`

`

`Case 1:16-cv-00455-RGA Document 24 Filed 10/04/16 Page 9 of 27 PageID #: 1235
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` 
`
`the invention to a particular … technological environment….” Intellectual Ventures I LLC v.
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`Symantec Corp., No. 2015-1769, 2016 WL 5539870, at *8 (Fed. Cir. Sept. 30, 2016) (internal
`
`quotations omitted). Thus, these claims are not saved simply because the message sending and
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`forwarding steps are performed in a specific type of computer network. This is especially true
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`because message forwarding is a common if not necessary method for broadcasting information
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`where the network of participants is incomplete; with a complete network, each participant can
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`send the message directly to every other participant without the need for forwarding.
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`These basic methods for disseminating information of the Broadcast Claims are abstract,
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`and were long practiced without the use of computers or advanced technology. Further, none of
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`the claims provides sufficient “additional features” to make the claims patent-eligible. Alice, 134
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`S. Ct. at 2357. Accordingly, Defendants move to dismiss the Broadcast Claims as invalid under
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`35 U.S.C. § 101.
`
`III.
`
`STATEMENT OF FACTS
`
`The Broadcast Patents, which share a nearly identical specification, describe methods for
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`broadcasting messages. 6 The claimed broadcast technique has only two steps: a “message
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`sending step” and a “message forwarding step.” For the message sending step, “the originating
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`computer sends the message to each of its neighbors using its point-to-point7 connections.” ’344
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`patent, col. 4, ll. 30-32. The second step—the message forwarding step—requires that “[e]ach
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`computer that receives the message then sends the message to its three8 other neighbors using the
`
`                                                             
`6 The Broadcast Patents issued from related applications filed on July 31, 2000. For ease of
`reference, the ’344 patent (D.I. 1-1, Ex. 1) is used when citing to the common specification.
`7 The specification background admits
`that a “point-to-point” connection
`is an old
`communication protocol. See ’344 patent, col. 1, ll. 44-57.
`8 In the example, each computer is connected to four other computers. Thus, a computer that
`receives a message from one “neighbor” will send that message to its remaining three other
`neighbors. This implementation is just like a chain letter or phone tree in which the information
`
`-4-
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`

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`Case 1:16-cv-00455-RGA Document 24 Filed 10/04/16 Page 10 of 27 PageID #: 1236
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` 
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`point-to-point connections.” Id., col. 4, ll. 33-34. The apparent objective of the Broadcast
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`Patents is to use this technique to “effect the broadcasting of the message to each computer over
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`a logical broadcast channel.” Id., col. 4, ll. 35-38.
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`The claimed message distribution employs a conventional communication technique that
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`is implemented over existing networking infrastructure—the Internet—using generic computing
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`devices. The specification explains: “[t]he logical broadcast channel is implemented using an
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`underlying network system (e.g., the Internet) that allows each computer connected to the
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`underlying network system to send messages to each other connected computer using each
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`computer’s address.” Id., col. 4, ll. 15-19; see also Abstract (summarizing the infrastructure in
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`the same way). The specification does not suggest that these garden-variety computers contain
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`specialized hardware that cause the computers to function in any way other than their normal,
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`expected, and conventional manner:
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`The computers connecting to the broadcast channel may include a central processing
`unit, memory, input devices (e.g., keyboard and pointing device), output devices
`(e.g., display devices), and storage devices (e.g., disk drives). The memory and
`storage devices are computer-readable medium
`that may contain computer
`instructions that implement the broadcaster component.
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`Id., col. 15, ll. 58-64.
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`Thus, the Broadcast Patents merely use a standardized, preexisting protocol to implement
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`the message distribution idea: “[i]n one embodiment, the broadcast technique establishes the
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`computer connections using the TCP/IP communications protocol, which is a point-to-point
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`protocol, as the underlying network.” Id., col. 6, ll. 25-28.
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`There are additional, well-known network and graph theory features used in the
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`embodiments disclosed and claimed in the Broadcast Patents, but these only serve to delineate
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`                                                                                                                                                                                                    
`recipient forwards the message on to its remaining neighbors except the neighbor who first sent
`the information.
`
`-5-
`
`

`

`Case 1:16-cv-00455-RGA Document 24 Filed 10/04/16 Page 11 of 27 PageID #: 1237
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` 
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`the particular “technological environment” of the claims. For example, the networks are claimed
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`to be “m-regular,” “m-connected” (see ’634 patent at col. 29, l. 21), and/or “non-complete.” See
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`id. at col. 29, ll. 24-25. These features are described in the specification in a mathematical
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`“graph” context. See id. at col. 4, ll. 64-65 (“A graph in which each node is connected to four
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`other nodes is referred to as a 4-regular graph.”); see also id. at col. 5, ll. 1-6 (describing m-
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`connected property). These are basic features of graphs that were long known to provide
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`advantages in network applications. See, e.g., Kuo-Jui Lin, “Routing and Broadcasting in Two-
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`dimensional Linear Congruential Graphs of Degree Four” (Master’s Thesis, Concordia
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`University, June 1994) (“Kuo-Jui Lin”) (Ex. A) at 9 (explaining that a regular graph “has all of
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`its edges uniformly distributed; therefore, reducing the probability of the occurrence of
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`bottlenecks.”); Bondy and Murty, GRAPH THEORY WITH APPLICATIONS, 1976 (New York)
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`(“Bondy”) (Ex. B) at 11 (describing “regular” graphs) and 13 (describing “connected” graphs);
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`Baransel et al., Routing in Multihop Packet Switching Networks: Gb/s Challenge, IEEE Network,
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`May/June 1995 (“Baransal”) (Ex. C) at 49, 52, 53, 55, 56 (describing various m-regular non-
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`complete topologies).
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`IV. APPLICABLE LAW
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`A.
`
`Legal Standard for Motion to Dismiss
`
`The test for patent-eligible subject matter is a threshold test that is particularly
`
`appropriate for resolution in a Rule 12 motion to dismiss. See, e.g., OIP Techs., Inc. v.
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`Amazon.Com, Inc., 788 F.3d 1359, 1364 (Fed. Cir. 2015) (affirming motion to dismiss on § 101
`
`grounds); see also id. at 1365 (Mayer, J., concurring) (“I commend the district court’s adherence
`
`to the Supreme Court’s instruction that patent eligibility is a ‘threshold’ issue by resolving it at
`
`the first opportunity.”) (internal citation omitted). Whether a claim is drawn to patent-eligible
`
`subject matter under 35 U.S.C. § 101 is a question of law. See id. at 1362 (citation omitted). In
`
`-6-
`
`

`

`Case 1:16-cv-00455-RGA Document 24 Filed 10/04/16 Page 12 of 27 PageID #: 1238
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` 
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`the absence of disputed underlying facts, this Court previously declined to extend the
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`presumption of validity and did not require proof of invalidity by clear and convincing evidence.
`
`See Inventor Holdings, LLC v. Gameloft, Inc., 135 F. Supp. 3d 239, 248 n.6 (D. Del. 2015).
`
`B.
`
`Legal Standard for Patent-Eligible Subject Matter
`
`“Laws of nature, natural phenomena, and abstract ideas are not patentable.” Alice, 134 S.
`
`Ct. at 2354 (citation omitted). The Supreme Court has recognized a concern with patent claims
`
`that improperly tie up the future use of “the basic tools of scientific and technological work”
`
`which it found to be the basic “building blocks of human ingenuity.” Id. (citations omitted).
`
`The Court in Alice applied a two-step test to determine whether a claim is patent-eligible.
`
`First, a court must determine whether a claim is “directed to” a patent-ineligible concept, such as
`
`an abstract idea (“Alice Step 1”). Alice, 134 S. Ct. at 2355. The Federal Circuit recently
`
`explained that for “the first step of the Alice analysis,” it is “relevant to ask whether the claims
`
`are directed to an improvement to computer functionality versus being directed to an abstract
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`idea….” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016).
`
`If the claims are directed to an abstract idea, then a court must determine whether there is
`
`an “inventive concept”—that is, an element or combination of elements “sufficient to ensure that
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`the patent in practice amounts to significantly more than a patent upon the [ineligible concept]
`
`itself” (“Alice Step 2”). Alice, 134 S. Ct. at 2355 (alteration in original). A claim to an abstract
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`idea must include “additional features” which must be more than “well-understood, routine,
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`conventional activit[ies] previously known to the industry.” Id. at 2359 (citation omitted).
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`Further, “[t]he prohibition against patenting abstract ideas ‘cannot be circumvented by
`
`attempting to limit the use of the formula to a particular technological environment or adding
`
`insignificant postsolution activity.’” Bilski v. Kappas, 561 U.S. 593, 610-11 (2010) (citation
`
`omitted).
`
`-7-
`
`

`

`Case 1:16-cv-00455-RGA Document 24 Filed 10/04/16 Page 13 of 27 PageID #: 1239
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` 
`
`V.
`
`ARGUMENT
`
`The Broadcast Claims are invalid under the two-step Alice inquiry because (i) they are
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`directed to the abstract and age-old method of using message-forwarding to broadcast
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`information among a group of participants; and (ii) their additional limitations are trivial and
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`collectively do not amount to significantly more than a claim to the simple, abstract idea itself.
`
`A.
`
`Claim 1 from Each of the ’344, ’966, and ’634 Patents is Representative and is
`Directed to the Same Abstract Idea
`
`It is not necessary to address every claim so long as the court identifies a representative
`
`claim and “all the claims are ‘substantially similar and linked to the same abstract idea.’”
`
`Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1348
`
`(Fed. Cir. 2014) (internal citation omitted). Claim 1 of the ’344, ’966, and ’634 patents are
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`substantially similar and are directed to the same abstract idea, viz. using message-forwarding to
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`broadcast information among a group of participants. This rudimentary, abstract practice can
`
`and was performed by humans without any computers at all. Message forwarding has long been
`
`used to broadcast information where no single participant can send (or is expected to send) the
`
`message to all intended recipients. In such cases, where the connections among the participants
`
`are “incomplete,” message forwarding has been a traditional and necessary component of
`
`broadcasting information to large or dispersed groups. For instance, in the schoolyard game of
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`“telephone,” a group of people forward messages to each other until the message is received by
`
`everyone; in a phone tree, each person who receives a message calls his or her designated
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`contacts and passes along that message, with the process continuing until the message is shared
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`with the entire group; with a chain letter, each person who receives the letter is required to
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`forward it to an equal number of people, who are then obligated to pass along the letter to that
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`same number of people as well. Although not described as being m-regular and incomplete,
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`-8-
`
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`Case 1:16-cv-00455-RGA Document 24 Filed 10/04/16 Page 14 of 27 PageID #: 1240
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`these pre-digital age examples were indeed incomplete as not every participant in these groups
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`was connected directly to every other participant in the group and some would have been m-
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`regular by having each participant connect to m other participants. The game of telephone is a
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`good example and is played on a two-regular incomplete graph. Chain letters and phone trees
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`(also known as “phone circles”) are by their nature always incomplete graphs, just like the
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`Broadcast Claims, because not every participant is directly connected to every other participant.
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`Further, chain letters and phone trees can be constructed as m-regular. Thus, the abstract method
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`central to claim 1 of the ’344, ‘966, and ‘634 patents is readily implemented without using
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`computers at all, and has been implemented in m-regular, incomplete graphs.
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`B.
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`Alice Step 1: The Broadcast Claims are Directed to an Abstract Idea
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`All of the Broadcast Claims involve some combination of the following two basic
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`elements:
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`(1) the originating participant sends data to all of its neighbors; and
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`(2) each participant that receives data, in turn, forwards it on to its neighbors.
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`Thus, the Broadcast Claims are all generally directed to a common, age-old communication
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`technique of using message-forwarding to broadcast information among a group of participants.
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`Having an originating participant send the message only to its directly connected participants
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`(i.e. an incomplete network of participants) instead of all participants is conventional and
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`improves the speed and efficiency of the message distribution. Moreover, this requirement of
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`only sending to directly connected participants is a natural consequence of many groups in which
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`not every group participant is directly connected to every other participant in the group. For
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`these common incomplete groups, the forwarding of information is the only way to share
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`information with all the group participants.
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`Case 1:16-cv-00455-RGA Document 24 Filed 10/04/16 Page 15 of 27 PageID #: 1241
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`Sending messages in this manner is a well-known, simple, and abstract concept.
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`Following Alice, the Federal Circuit has confirmed that “[p]atents that merely claim well-
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`established, fundamental concepts fall within the category of abstract ideas.” Cyberfone Sys.,
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`LLC v. CNN Interactive Grp., Inc., 558 F. App’x 988, 991 (Fed. Cir. 2014). The Federal Circuit
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`very recently found that “providing out-of-region access to regional broadcast content is an
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`abstract idea” because “[i]t is a broad and familiar concept concerning information distribution
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`that is untethered to any specific or concrete way of implementing it.” Affinity Labs of Texas,
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`LLC v. DirecTV, LLC, No. 2015-1845, 2016 WL 5335501, at *3 (Fed. Cir. Sept. 23, 2016). The
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`same holds true for the Broadcast Claims, where message-forwarding is used to broadcast
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`information to a wider group of participants.
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`Furthermore, the process claimed in the Broadcast Claims can be performed by humans
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`without computing devices at all. The fact that “there are pre-Internet analogs to the patent
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`claims suggests methods of organizing human (business) activity and, therefore, an abstract
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`idea.” Parus Holdings, Inc. v. Sallie Mae Bank et al., 137 F. Supp. 3d 660, 672 (D. Del. 2015)
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`(citing Intellectual Ventures I LLC v. Capital One Bank, 792 F.3d 1363, 1368 (Fed. Cir. 2015)).
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`Further, the two basic elements, supra, which are part of the message forwarding
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`embodied by the Broadcast Claims, are but simple acts of data transmission and retransmission,
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`which have repeatedly been held to be abstract. For example, in Dealertrack, Inc. v. Huber, the
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`Federal Circuit distilled the asserted patent—directed to receiving credit application data and
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`forwarding that data to multiple funding sources—into three simple steps: “receiving data from
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`one source (step A), selectively forwarding the data (step B, performed according to step D), and
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`forwarding reply data to the first source (step C).” 674 F.3d 1315, 1333 (Fed. Cir. 2012). Here,
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`just as retransmission is an abstract idea, retransmitting multiple times is still an abstraction. See,
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`Case 1:16-cv-00455-RGA Document 24 Filed 10/04/16 Page 16 of 27 PageID #: 1242
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`e.g., Personalized Media Commc’ns, LLC v. Amazon.Com, Inc., 161 F. Supp. 3d 325, 333-34 (D.
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`Del. 2015) (“performing an abstract idea twice in a row is not a meaningful limitation.”).
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`This Court has previously held abstract the passing of information—in an automated call
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`distribution network that included an intermediary server for receiving and forwarding data from
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`a customer terminal to a call center through contact channels (e.g., Internet and phone). See
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`Pragmatus Telecom LLC v. Genesys Telecomms. Labs., Inc., 114 F. Supp. 3d 192, 200-01 (D.
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`Del. 2015); see also Callwave Commc’ns, LLC v. AT&T Mobility, LLC, No. 12-1701-RGA, 2016
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`WL 4941990, at *4 (D. Del. Sept. 15, 2016) (collecting cases similar to requesting and receiving
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`information). Just like passing information through a customer contact channel, here forwarding
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`information to multiple recipients or neighbors along dedicated communication lines is reflected
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`in age-old business practices.
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`Further, the Federal Circuit has rejected arguments of patent eligibility due to a claim
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`being narrowly limited to a specific field of use, application, or technological environment. See,
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`e.g., Dealertrack, 674 F.3d at 1334. Very recently, the court reemphasized this point again,
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`explaining that “an abstract idea does not become nonabstract by limiting the invention to a
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`particular … technological environment.” Symantec Corp., 2016 WL 5539870, at *8. In this
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`case, limiting the claims to computer networks or m-regular, incomplete computer networks or
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`even gaming computer networks does not change the abstract nature of these claims.
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`Furthermore, the claims here are not directed to the type of invention recently found by
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`the Federal Circuit to be statutory under § 101 in Enfish or in McRO. In those cases, the Federal
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`Circuit emphasized that the abstract idea analysis requires inquiry “to whether the