Case 1:17-cv-01520-CFC-SRF Document 46 Filed 07/10/19 Page 1 of 23 PageID #: 2570
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`Plaintiff,
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`v.
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`REALTIME ADAPTIVE STREAMING LLC,
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`HAIVISION NETWORK VIDEO INC.,
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`Defendant.
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` C.A. No. 17-1520-CFC-SRF
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`
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`DEFENDANT HAIVISION’S RESPONSE TO PLAINTIFF’S MOTION
`FOR LEAVE TO FILE AMENDED COMPLAINT
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`
`
`
`
`Of Counsel:
`
`Herbert H. Finn
`Howard E. Silverman
`Sara Skulman
`GREENBERG TRAURIG, LLP
`77 West Wacker Drive, Suite 3100
`Chicago, Illinois 60601
`(312) 456-8400
`finnh@gtlaw.com
`silvermanh@gtlaw.com
`skulmans@gtlaw.com
`
`
`
`Dated: July 10, 2019
`
`GREENBERG TRAURIG, LLP
`Steven T. Margolin (#3110)
`Benjamin J. Schladweiler (#4601)
`Samuel L. Moultrie (#5979)
`The Nemours Building
`1007 North Orange Street, Suite 1200
`Wilmington, Delaware 19801
`(302) 661-7000
`margolins@gtlaw.com
`schladweilerb@gtlaw.com
`moultries@gtlaw.com
`
`Counsel for Defendant Haivision Network
`Video Inc.
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`
`
`

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`Case 1:17-cv-01520-CFC-SRF Document 46 Filed 07/10/19 Page 2 of 23 PageID #: 2571
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`
`TABLE OF CONTENTS
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`Page
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`TABLE OF AUTHORITIES .......................................................................................................... ii
`I. 
`INTRODUCTION .............................................................................................................. 1 
`II. 
`FACTUAL BACKGROUND ............................................................................................. 2 
`III. 
`ARGUMENT ...................................................................................................................... 3 
`a.  Realtime’s motion to amend is procedurally improper and should be
`denied as waived. ................................................................................................................ 3 
`b.  Realtime has no excuse for its undue delay. ....................................................................... 4 
`c.  Granting leave to file the proposed TAC would be highly prejudicial
`to Haivision. ........................................................................................................................ 5 
`d.  The allegations in the TAC are futile. ................................................................................. 6 
`i.  The allegations regarding later filed, unrelated patents are not relevant
`and do not overcome invalidity. .................................................................................... 7 
`ii.  The alleged claim construction issues do not change the analysis; the
`Fallon Patent claims are still invalid for claiming an abstract idea. ............................. 8 
`iii.  All of the TAC’s purported “unconventional and novel limitations” were
`raised and rejected in the Court’s decision regarding Haivision’s Motion
`to Dismiss.................................................................................................................... 11 
`iv.  Realtime’s allegation that the claims are not representative was already
`rejected by the Court and is not a factual issue. .......................................................... 14 
`v.  The incorporation of the Central California District Court’s order into the
`TAC is not a factual issue at all, let alone one that would render the claims
`patent eligible. ............................................................................................................. 15 
`e.  Aatrix does not require granting amendment here. ........................................................... 15 
`f.  The amendment to assert the reissue patent should be denied for undue delay
`and as highly prejudicial. .................................................................................................. 16 
`CONCLUSION ................................................................................................................. 17 
`
`IV. 
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`
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`
`
`i
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`

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`Case 1:17-cv-01520-CFC-SRF Document 46 Filed 07/10/19 Page 3 of 23 PageID #: 2572
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`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Aatrix Software, Inc. v. Green Shades Software, Inc.,
`882 F.3d 1121 (Fed. Cir. 2018)......................................................................................3, 15, 16
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ...................................................................................................................6
`
`Butamax Advanced Biofuels LLC v. Gevo, Inc.,
`No. 11-54-SLR, 2012 U.S. Dist. LEXIS 86215 (D. Del. June 21, 2012) ..................................6
`
`Citrix Sys., Inc. v. Avi Networks, Inc.,
`363 F. Supp. 3d 511 (D. Del. 2019) .........................................................................................17
`
`Cureton v. NCAA,
`252 F.3d 267 (3d Cir. 2001)...................................................................................................4, 5
`
`DiStefano Patent Tr. III, LLC v. LinkedIn Corp.,
`346 F. Supp. 3d 616 (D. Del. 2018) .........................................................................................13
`
`Elec. Power Grp., LLC v. Alstom S.A.,
`830 F.3d 1350 (Fed. Cir. 2016)................................................................................................11
`
`Foman v. Davis,
`371 U.S. 178 (1962) ...................................................................................................................3
`
`Gasoline Sales v. Aero Oil Co.,
`39 F.3d 70 (3d Cir. 1994) ..........................................................................................................4
`
`Genetic Techs. Ltd. v. Merial L.L.C.,
`818 F.3d 1369 (Fed. Cir. 2016)..................................................................................................9
`
`Glasswall Sols. Ltd. v. Clearswift Ltd.,
`754 F. App’x 996 (Fed. Cir. 2018) ............................................................................................8
`
`Henderson v. Carlson,
`812 F.2d 874 (3d Cir. 1987).......................................................................................................3
`
`IPA Techs., Inc. v. Amazon.com, Inc.,
`352 F. Supp. 3d 335 (D. Del. 2019) ...............................................................................8, 12, 13
`
`Realtime Adaptive Streaming LLC v. Google LLC,
`Case No. 2:18-cv-03629-GW-JC, D.I. 36 (C.D. Cal. Oct. 25, 2018) ......................................15
`
`ii
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`

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`Case 1:17-cv-01520-CFC-SRF Document 46 Filed 07/10/19 Page 4 of 23 PageID #: 2573
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`RecogniCorp, LLC v. Nintendo Co.,
`855 F.3d 1322 (Fed. Cir. 2017), cert. denied, 138 S. Ct. 672 (2018) ........................................9
`
`Rolo v. City Investing Co. Liquidating Tr.,
`155 F.3d 644 (3d Cir. 1998).......................................................................................................6
`
`Shane v. Fauver,
`213 F.3d 113 (3d Cir. 2000).......................................................................................................6
`
`Shortridge v. Found. Constr. Payroll Serv., LLC,
`No. 14-CV-04850-JCS, 2015 WL 1739256 (N.D. Cal. Apr. 14, 2015), aff’d,
`655 F. App’x 848 (Fed. Cir. 2016) ..........................................................................................12
`
`Sincavage v. Barnhart,
`171 F. App’x 924 (3d Cir. 2006) ...............................................................................................3
`
`TriPlay, Inc. v. WhatsApp Inc.,
`No. CV 13-1703-LPS-CJB, 2018 WL 1479027 (D. Del. Mar. 27, 2018)
`(“TriPlay I”) .........................................................................................................................8, 13
`
`TriPlay, Inc. v. WhatsApp Inc.,
`No. CV 13-1703-LPS-CJB, 2018 WL 3545500 (D. Del. July 24, 2018)
`(“TriPlay II”) ............................................................................................................. 1-2, 13, 16
`
`Two-Way Media Ltd. v. Comcast Cable Commc'ns, LLC,
`874 F.3d 1329 (Fed. Cir. 2017)................................................................................................16
`
`Voit Techs., LLC v. Del-Ton, Inc.,
`757 F. App’x 1000 (Fed. Cir. 2019) ..........................................................................................9
`
`Statutes
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`35 U.S.C. § 101 ...................................................................................................................... passim
`
`35 U.S.C. § 112 ..............................................................................................................................17
`
`35 U.S.C. § 252 ..............................................................................................................................17
`
`iii
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`

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`I.
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`INTRODUCTION
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`Over six months ago, the Court correctly recommended that the Fallon Patents1 be found
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`to be invalid pursuant to 35 U.S.C. § 101, because the “Fallon [P]atents are directed to the abstract
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`idea of encoding and decoding data, and the digital compression of data.” (D.I. 41 at 9, “R&R.”)
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`At that time, this Court similarly recommended denying Realtime an opportunity to amend its
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`complaint further2. (D.I. 41 at 12.)
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`Realtime objected to the R&R arguing that dismissal of the case as to the Fallon Patents
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`was improper. (D.I. 42.) Notably, Realtime failed to object to this Court’s recommendation
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`denying it leave to amend the complaint. Having failed to timely object to the recommendation,
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`Realtime’s present Motion for Leave to File Amended Complaint (D.I. 45) belatedly attempts to
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`skirt the Court’s recommendations and as such is procedurally improper.3
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`Indeed, Realtime’s Motion for Leave is nothing more than the same arguments it already
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`made to, and were rejected by, this Court. Realizing that it failed to address, let alone object to,
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`the entirety of the Court’s recommendation, Realtime now files what is effectively a motion for
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`reconsideration of the Court’s recommendation. Ignoring the procedural impropriety, “a motion
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`for reconsideration should be granted sparingly... and should only be granted if the Court has
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`patently misunderstood a party, made a decision outside the adversarial issues presented by the
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`parties, or made an error not of reasoning but of apprehension.” TriPlay, Inc. v. Whatsapp Inc.,
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`1 The five Fallon Patents originally asserted against Haivision are U.S. Patent Nos. 7,386,046 (“the
`’046 patent”), 8,934,535 (“the ’535 patent”), 8,929,442 (“the ’442 patent”), 9,762,907 (“the ’907
`patent”) and 9,769,477 (“the ’477 patent”). In its proposed Third Amended Complaint (“TAC”),
`Realtime also seeks amendment to “swap out” U.S. Patent No. 8,634.462 (“the ’462 patent”) and
`replace it with RE46,777 (“the ’777 patent”).
`2 Realtime sought leave to amend the then operative complaint in footnote 21 of its Answering
`Brief in Opposition to Defendant’s Motion to Dismiss under FRCP 12(b)(6). (D.I. 28, p. 18.)
`3 Realtime has filed a similar motion to amend in its case against Netflix. (Realtime v. Netflix, 1-
`17-cv-01692, D.I. 51.) Haivision does not intend to reiterate Netflix’s arguments and provides
`this Response given the differing R&Rs, motions and complaints.
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`
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`

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`C.A. No. 13-1703-LPS-CJB, 2018 WL 3545500 (D. Del. July 24, 2018.) (finding that “any
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`amendment to [the party’s] Third Amended Complaint (“TAC”) would be futile.”)
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`None of the alleged “factual” allegations contained in the Motion for Leave or the proposed
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`TAC creates a genuine issue of disputed fact that alters this Court’s prior analysis. As discussed
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`below, Realtime’s proposed TAC is futile for the same reasons this Court already held as a matter
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`of law. There is no new factual dispute for this Court to decide and Realtime’s Motion for Leave
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`to Amend should be denied.
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`II.
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`FACTUAL BACKGROUND
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`On October 26, 2017, Realtime filed its original Complaint. (D.I. 1.) Realtime filed a First
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`Amended Complaint on Dec. 1, 2017. (D.I. 10.) Almost two months later, Realtime sought to
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`amend yet again, filing its Second Amended Complaint (“SAC”) on January 31, 2018. (D.I. 20
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`(motion to amend); see also, D.I. 22 (the SAC).) Haivision promptly moved to dismiss the SAC
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`on February 20, 2018. (D.I. 23.)
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`On December 12, 2018, the Court issued its R&R recommending that Haivision’s motion
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`to dismiss be granted in part and denied in part. Specifically, the Court recommended that the case
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`be dismissed as to the Fallon Patents. (D.I. 41.) The Court also recommended denying Realtime’s
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`request for leave to amend. (Id.) Realtime then filed an objection to the R&R regarding the motion
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`to dismiss, but failed to object to the Court’s recommendation regarding any amendment by
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`Realtime. (D.I. 42.) Realtime’s objection is fully briefed and remains pending before the Court.
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`Now, more 1½ years since its original filing of the lawsuit and more than six months after
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`issuance of the Court’s R&R denying its prior request, Realtime requests yet another opportunity
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`to file a further amended complaint. (D.I. 45.) Amongst other reasons, Realtime’s Motion is
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`untimely and should be denied.
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`2
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`

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`III. ARGUMENT
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`A motion for leave to amend under Rule 15(a) can be denied where there is “undue delay,
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`bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
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`amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of
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`the amendment, futility of amendment,” or other similar justifications. Foman v. Davis, 371 U.S.
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`178, 182 (1962). As discussed below, Realtime’s present motion for leave is procedurally
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`improper, because Realtime already raised this request and was denied, and then failed to timely
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`object to the Court’s decision. Moreover, the motion for leave to amend should also be denied,
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`because Realtime unduly delayed in bringing the motion, the proposed amendments would be
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`unduly prejudicial, and the proposed amendments are futile.
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`a. Realtime’s motion to amend is procedurally improper and should be denied
`as waived.
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`In opposing Haivision’s motion to dismiss, Realtime asked this Court that any “dismissal
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`be without prejudice to amending the complaint, because ‘there certainly [are] allegations of fact
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`that, if … accepted, would preclude the dismissal.’” (D.I. 28, p. 18, fn. 21 (quoting Aatrix Software,
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`Inc. v. Green Shades Software, Inc., 882 F.3d 1121, 1126 (Fed. Cir. 2018)).) In the R&R, “the
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`court recommend[ed] denying the request to amend.” (D.I. 41 at 18.) Moreover, the Court
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`emphasized that “[t]he failure of a party to object to legal conclusions may result in the loss of the
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`right to de novo review in the District Court.” (Id. at 27 (citing Sincavage v. Barnhart, 171 F.
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`App'x 924, 925 n.1 (3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).)
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`Yet, when Realtime filed its objections to the R&R, Realtime failed to object this Court’s
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`recommendation that Realtime not be permitted to further amend the SAC. In failing to object to
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`the Court’s recommendation, Realtime waived its opportunity to seek further amendment.
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`3
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`

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`b. Realtime has no excuse for its undue delay.
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`Not only is the present motion for leave procedurally improper, but Realtime also unduly
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`delayed in seeking this newest motion to amend. While delay alone may be insufficient, undue
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`delay is cause for denying a motion to amend. See Cureton v. NCAA, 252 F.3d 267, 273 (3d Cir.
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`2001). In this Circuit, delay “become[s] undue when a movant has had previous opportunities to
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`amend a complaint.” Id.
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`Realtime has had numerous previous opportunities to amend. The proposed TAC is
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`nothing but an incorporation of alleged “facts”4 that have existed since before the filing of this
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`case over 1½ years ago. Indeed, these alleged facts were included in Realtime’s (losing) brief in
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`opposition to Haivision’s motion to dismiss. Moreover, Realtime amended its complaint on
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`numerous occasions (the proposed TAC would be its fourth pleading). Each of the factual
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`allegations that Realtime now seeks to include could have, and should have, been presented in
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`each of the prior complaints.
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`However, Realtime strategically chose to withhold the factual allegations from the original
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`Complaint. It continued its strategy and withheld these factual allegations from the First Amended
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`Complaint and again from the Second Amended Complaint. As the Third Circuit noted, “three
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`attempts at a proper pleading is enough.” Gasoline Sales v. Aero Oil Co., 39 F.3d 70, 74 (3d Cir.
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`1994) (internal quotation omitted) (upholding district court’s denial of motion to amend). Like the
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`plaintiff in Gasoline Sales, Realtime “is not seeking to add claims it inadvertently omitted from its
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`prior complaints or which it did not know about earlier. Rather, [Realtime] is modifying its
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`allegations in hopes of remedying factual deficiencies in its [three] prior pleadings…” Id.
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`4 Many of Realtime’s alleged facts are not facts at all. For example, Realtime’s TAC cites to a
`nonbinding district court decision as an issue of law.
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`4
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`

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`If this failure to include the factual allegations is not sufficient, Realtime again chose to
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`withhold the factual allegations from the Court when opposing Haivision’s Motion to Dismiss --
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`preferring to rely upon a lone, nondescript footnote. (D.I. 28 at 18, fn. 21.) As this Court found,
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`despite having the opportunity to present all the allegations of fact it wanted the Court to consider,
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`Realtime did “not provide examples of additions to the Second Amended Complaint that could
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`change the recommended outcome [of dismissal based upon invalidity.]” (D.I. 41, p.18.)5 The
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`latest of missed opportunities by Realtime.
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`Realtime’s repeated failure to include the allegations until now demonstrates undue delay
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`that unfairly burdens the Court and Haivision.
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`c. Granting leave to file the proposed TAC would be highly prejudicial to
`Haivision.
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`Realtime’s delay in seeking inclusion of the amendments is unduly prejudicial to Haivision.
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`In the Third Circuit, substantial or undue prejudice to the non-moving party is an independent
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`reason for denying a motion to for leave to amend. Cureton, 252 F.3d at 273.
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`The Fallon Patents preempt the abstract idea of selecting a compression algorithm and are
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`the quintessential “bad patents” that 35 U.S.C. § 101 is meant to weed out. The fact that Haivision
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`even has to answer this procedurally improper, belated request to reconsider is prejudicial in and
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`of itself. In the 1½ years Realtime has continued to assert these facially flawed patents, Haivision
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`has spent significant time, effort and money in defending against these baseless causes of actions6.
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`Realtime should not be allowed yet another chance to kick-the-can down the road, postponing the
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`5 The Court also correctly found that any alleged facts were unlikely to change the Court’s
`decision. Id.
`6 Significantly, Realtime has settled with numerous other defendants in a multi-district campaign,
`settling quickly and early. This is a typical litigation strategy for assertions of hopelessly invalid
`patents. Realtime’s continued attempts to assert the Fallon Patent provides yet further support for
`an exceptional case finding.
`
`5
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`

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`inevitable finding that the claims are invalid, while forcing Haivision to spend yet more effort and
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`expense defending against baseless claims. The Third Circuit has found prejudice where, as here,
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`there is a lengthy duration of the case and a substantial amount of effort and expense have gone
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`into resolving a motion to dismiss. Rolo v. City Investing Co. Liquidating Tr., 155 F.3d 644, 655
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`(3d Cir. 1998).
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`Further, the caselaw cited by Realtime is unavailing. After asserting that “this Court
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`repeatedly finds that there can be no unfair prejudice to defendant if the motion to amend is filed
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`before the deadline set in the scheduling order,” Realtime cites to a single, inapplicable case. (D.I.
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`45 at 10 (emphasis added) (citing Butamax Advanced Biofuels LLC v. Gevo, Inc., No. 11-54-SLR,
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`2012 U.S. Dist. LEXIS 86215, at *6 (D. Del. June 21, 2012)).) However, in Butamax, the party
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`had not previously amended the complaint. And, the Butamax court had not decided a motion to
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`dismiss. Id. Rather, the party sought to add an entirely new and different cause of action relating
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`to allegations of inequitable conduct. Id. Realtime does not seek leave to add a new theory of
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`liability or cause of action, but only seeks to bolster its prior allegations with alleged facts and
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`arguments that this Court has already considered and rejected. Butamax is simply inapplicable
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`and should be disregarded.
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`d. The allegations in the TAC are futile.
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`Realtime’s motion should also be denied, because the allegations in the proposed TAC
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`remain insufficient to state a claim for relief. Regardless of any of the alleged “facts” Realtime
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`seeks to add, the Fallon Patents are invalid under §101 as a matter of law. An amendment is futile
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`if “the complaint, as amended, would [still] fail to state a claim upon which relief could be
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`granted.” Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).” And to state a claim for relief,
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`Realtime’s proposed TAC must plausibly allege patent eligibility under 35 U.S.C. § 101. See
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The TAC does not.
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`6
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`

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`The Court correctly found that the Fallon Patents do “not improve the functioning of a
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`computer.” (D.I. 41 at 12 (emphasis added).) None of the “five different additional categories of
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`allegations” in the TAC change this finding. (D.I. 45 at 5.) According to Realtime, these
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`purportedly new allegations “squarely contradict each of the necessary premises and conclusions
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`in the R&R.” (Id. at 2.) But the R&R makes legal conclusions, not factual ones. As will be
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`discussed below, four of these “factual” allegations were already expressly considered and rejected
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`and none of the five allegations creates a factual dispute as a matter of law.
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`i. The allegations regarding later filed, unrelated patents are not
`relevant and do not overcome invalidity.
`
`Realtime’s first senseless argument is that unrelated “later-filed patents from technology
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`companies like Western Digital and Altera…demonstrate [that] various technologists were still
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`struggling to solve the computer-specific problem of storing and/or transferring digital data more
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`efficiently.”7 (D.I. 45 at 1 (emphasis in original).) According to Realtime, this somehow
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`demonstrates that the earlier Fallon Patents, which have overly broad, functional claims, are patent
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`eligible. It does not8. As the Court held, “[s]imply because the USPTO issued the patents does
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`not mean that [they] are necessarily patent eligible under § 101.”
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`If anything, this allegation confirms that the Fallon Patents do not improve computer
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`functionality. These later filed patents were allegedly still seeking to improve compression
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`techniques by disclosing more narrow, concrete solutions9. By contrast, the Fallon Patents “do not
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`
`7 Significantly, this factual allegation is the only new and purportedly “relevant evidence”
`Realtime adds beyond what this Court has already addressed. (D.I. 45 at 1 (identifying the
`unrelated patents as the only example of “other relevant evidence”).)
`8 Tellingly, Realtime does not cite a single case holding that unrelated patents or citation of the
`asserted patents by later, unrelated patents have any bearing on patent eligibility. Case law is clear
`that patent eligibility focuses on the claims as elucidated by the specification – not some later,
`unrelated patent.
`9 Haivision does not agree that the “problems” or “solutions” that the identified Western Digital
`and Altera patents describe actually existed at any time.
`
`7
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`

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`purport to claim how the invention” determines a parameter and or “how” it selects a compression
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`routine from known compression routines based on the parameter. See Glasswall Sols. Ltd. v.
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`Clearswift Ltd., 754 F. App'x 996, 998 (Fed. Cir. 2018) (emphasis in original). “Instead, the claims
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`are framed in wholly functional terms, with no indication that any of these steps are implemented
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`in anything but a conventional way.” Id. (finding that similar data content filtering claims were
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`invalid under §101).
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` Here, the Court expressly found that the Fallon Patent claims were “well-known” and
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`based on admittedly known processes and techniques. (D.I. 41 at 12, 20, 22.) The Court also found
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`“as a matter of law” that “[t]he compressors, despite their type or number, do not add an inventive
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`concept to the abstract idea of selecting.” (D.I. 41 at 21.) Unrelated patents by different inventors
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`issued to unrelated parties are irrelevant here; the Fallon Patents are invalid based on the Fallon
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`Patents’ claim language in view of the Fallon Patents’ specification. See, e.g., IPA Techs., Inc. v.
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`Amazon.com, Inc., 352 F. Supp. 3d 335, 346 (D. Del. 2019) (“Plaintiff's new factual pleadings in
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`its amended complaint cannot contradict the specification and language of the claims
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`themselves”); TriPlay, Inc. v. WhatsApp Inc., No. CV 13-1703-LPS-CJB, 2018 WL 1479027, at
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`*8 (D. Del. Mar. 27, 2018), reconsideration denied, No. CV 13-1703-LPS-CJB, 2018 WL
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`3545500 (D. Del. July 24, 2018), aff'd, No. 2018-2265, 2019 WL 2564092 (Fed. Cir. June 21,
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`2019) (“It would be implausible, for instance, for TriPlay to allege in a fourth amended complaint
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`that the components of the claims are novel, when the specification repeatedly describes them as
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`conventional.”) (“TriPlay I”).
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`ii. The alleged claim construction issues do not change the analysis; the
`Fallon Patent claims are still invalid for claiming an abstract idea.
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`Realtime’s second argument is that incorporating claim constructions into the TAC
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`somehow renders the claims patent eligible. However, all four of Realtime’s proposed claim
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`8
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`

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`constructions are nothing more than recitations of elements of the abstract idea. Thus, even
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`accepting the proposed constructions as true, the Fallon Patent claims are still directed to abstract
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`ideas and are patent ineligible.10
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`For example, Realtime alleges that compression means “representing data with fewer bits.”
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`How this proposed construction alters the Court’s analysis is beyond comprehension. Realtime is
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`simply trying to obfuscate the issue by manufacturing claim construction issues where there are
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`none. For this reason, Realtime never alleges how this proposed construction changes the analysis.
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`Nor could it. As this Court already held, “compressing data is an abstract idea.” (D.I. 41 at 21-22.)
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`“Representing data with fewer bits” is the same abstract idea. RecogniCorp, LLC v. Nintendo Co.,
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`855 F.3d 1322, 1326 (Fed. Cir. 2017), cert. denied, 138 S. Ct. 672 (2018) (recognizing that
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`“encoding and decoding” are an “abstract concept long utilized to transmit information.”); see
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`also, Voit Techs., LLC v. Del-Ton, Inc., 757 F. App'x 1000, 1002 (Fed. Cir. 2019) (“The Asserted
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`Claims are directed to the abstract idea of entering, transmitting, locating, compressing, storing,
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`and displaying data (including text and image data) to facilitate the buying and selling of items.”).
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`Realtime’s construction of “data block” as “a single unit of data, which may range in size
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`from individual bits through complete files or collection of multiple files” also does not save any
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`of the Fallon Patent claims. Using this construction, everything is a data block (e.g., a single bit,
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`10 Realtime also seeks to “reserve[] the right to modify these constructions as case progresses.”
`(D.I. 45 at 7, n.3.) This further demonstrates that these are not factual allegations, as even Realtime
`does not hold them as true facts. Rather, Realtime expressly asserts that the “facts” can and will
`likely change after compromise between the parties. Regardless of any compromise of these
`“facts,” the Court does not have to accept a patentee’s (or any parties) proposed claim construction
`in ruling on a motion to dismiss. Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1374 (Fed.
`Cir. 2016) (“In many cases, too, evaluation of a patent claim's subject matter eligibility under §
`101 can proceed even before a formal claim construction. Claim construction is not an inviolable
`prerequisite to a validity determination under § 101.”) (internal quotations omitted). However,
`accepting these constructions does not alter the Court’s analysis.
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`9
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`Case 1:17-cv-01520-CFC-SRF Document 46 Filed 07/10/19 Page 14 of 23 PageID #: 2583
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`two bits, a whole file, half a file, two files, etc.). Again, Realtime is not making good faith attempts
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`to present concrete factual allegations. Instead, Realtime is hoping that by stringing together a
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`bunch of technical-sounding words it can make its invalid, abstract claims seem concrete and
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`narrower. In the end, though, the construction highlights the preemptive breadth of these claims.
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`This construction too has zero effect on any portion of this Court’s prior finding.
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`Further, Realtime’s proposed construction of “asymmetric” compression11 does not alter
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`the conclusion that the claims are directed to an abstract idea. Even accepting Realtime’s
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`construction, the claims remain directed to the abstract idea of merely selecting a compression
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`algorithm. Indeed, the Fallon Patents’ specification admits asymmetric compression algorithms
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`were well known. (D.I. 10-5, ’535 patent at 10:4-5.) And, as this Court held, the recitation of
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`different “types” of compressors was not an inventive concept. (D.I. 41 at 21.) Realtime’s alleged
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`“factual” construction does not change this. Indeed, Realtime’s proposed construction that an
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`asymmetric compressor is nothing more than an “unspecified, existing compression algorithm,”
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`confirms this Court’s findings; it does not refute it. (D.I. 41 at 21-22 (“reciting that data will be
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`compressed using an unspecified, existing compression algorithm does not add an inventive
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`concept to the abstract idea of compression.”).)
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`Similarly, Realtime’s proposed constructions for “access profile” and “data profile” do not
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`alter the conclusion that the Fallon Patents’ claims are directed to an abstract idea and are patent
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`ineligible. Realtime proposes a construction of “access profile” as “information that enables the
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`controller to select a suitable compression algorithm that provides a desired balance between
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`execution speed (rate compression) and efficiency (compression ratio).” Realtime’s proposed
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`11 Realtime’s proposed construction is “algorithm[s] in which the execution times for compression
`and decompression differ significantly.”
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`10
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`

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`Case 1:17-cv-01520-CFC-SRF Document 46 Filed 07/10/19 Page 15 of 23 PageID #: 2584
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`construction for “data profile” is even broader as simply “information associating data with a
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`compression algorithm.” Both proposed constructions are nothing more than a recitation of the
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`abstract idea of using data (i.e. “information”) to select a compression algorithm. “[A]nalyzing
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`information…by mathematical algorithms, without more” is an abstract idea. Elec. Power Grp.,
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`LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (collecting cases). And as this Court
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`held, “reciting that data will be compressed using an unspecified, existing compression algorithm
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`does not add an inventive concept to the