Case 1:20-cv-00518-LPS Document 24 Filed 09/28/20 Page 1 of 6 PageID #: 602
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`IN THE UNITED STATES DISTRICT COURT
`FOR DISTRICT OF DELAWARE
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`AMERANTH, INC.
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`Plaintiff,
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`v.
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`OLO INC.
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`Defendant.
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`) Civil Action No. 1:20-cv-518-LPS
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`PLAINTIFF AMERANTH, INC'S SUPPLEMENTAL LETTER BRIEF
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`Stamatios Stamoulis #4606
`Richard C. Weinblatt #5080
`Stamoulis & Weinblatt LLC
`800 N. West Street, Third Floor
`Wilmington, DE 19801
`(302) 999-1540
`stamoulis@swdelaw.com
`weinblatt@swdelaw.com
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`Attorneys for Plaintiff
`Ameranth, Inc.
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`Case 1:20-cv-00518-LPS Document 24 Filed 09/28/20 Page 2 of 6 PageID #: 603
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`Plaintiff Ameranth, Inc. ("Ameranth") submits this letter brief in accordance with the
`parties' September 25, 2020 Stipulation for Leave to Amend Complaint. (D.I. 23.). This letter
`addresses only the new matter added to the Amended Complaint.
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`Ameranth's Amended Complaint adds two patent-eligible claims from the '651 patent –
`claims 9 and 10. The Amended Complaint also includes critical evidentiary admissions from the
`Defendant. (Amended Compl. at ¶¶ 25-30; Amended Compl., Ex. B at ¶ 26.) These admissions
`were recently discovered by Ameranth and directly contradict Defendant's uncorroborated attorney
`arguments against the patentability of the asserted claims of the '651 patent.
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`Claims 9 and 10 depend from asserted independent claim 1 and add inventive concepts that
`further confirm the non-conventionality of the asserted claims. Claim 9 adds "wherein a mobile
`application operating on a wireless handheld computing device is used to interface with the back
`office hospitality software application." Claim 10 adds "wherein a frequent customer mobile
`application operating on a wireless handheld computing device is used to interface with the back
`office hospitality software application."
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`As confirmed by Dr. Valerdi in his updated declaration, Ameranth's introduction of mobile
`applications for wireless handheld devices as part of its intelligent automated assistants ("IAA")
`system in the hospitality industry, as called out in multiple asserted claims as of July 2005, was
`not routine or conventional:
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` •
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` "One of the earliest digital food orders was a pizza from Pizza Hut in 1994, followed shortly by
`waiter.com in 1995 yet these primitive ordering systems did not include any wireless handheld
`computers. Ameranth introduced remote wireless handheld ordering in September 1999. This
`was followed by Grubhub's look-up website for restaurants in 2004. The Pizza Hut and Grubhub
`solutions were simple, fixed format, menu-based food ordering systems with very limited
`capabilities and lacked the ability to process, understand, and execute unstructured data. Pizza
`Hut did not launch its frequent customer program 'Hut Rewards' until 2017 and Grubhub's frequent
`customer program 'Perks' launched in 2019. (Amended Compl., Ex. B at ¶ 19.)
`• "Adoption of mobile food ordering in the hospitality industry has traditionally lagged other
`industries. Noah Glass, Founder and CEO of Olo, who was named the 'Most Influential Person in
`Food Service' by Nation's Restaurant News, supports this view as evidenced by his statement on
`January 24, 2020 on the Extra Serving podcast:
`'As the consumer has adopted the smartphone really and it's sort of a, maybe now
`an obvious thing, but at the time that we started, it wasn't obvious. In fact, it was
`under 5% of consumers that had smartphones and we were maniacally focused on
`what the world of restaurants would look like when consumers adopted these
`things.' (Note: Olo was founded in 2005 which placed Mr. Glass' comments around
`the time of the '651 patent)
`'I think that from the lens of ecommerce, which is the piece of the technology pie
`that that Olo plays in, the restaurant industry was late to ecommerce, simply
`because you can't ship a cheeseburger from a warehouse with two day shipping.'
`This admission by Olo's CEO reconfirms and bolsters my expert opinion that
`Ameranth's '651 inventions were non-conventional at of the time of the inventions
`in July 2005." (Id. at ¶ 26.)
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`Case 1:20-cv-00518-LPS Document 24 Filed 09/28/20 Page 3 of 6 PageID #: 604
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`• "Some of the largest restaurant chains in the United States have caught on the mobile application
`trend slowly, compared to companies outside of the hospitality industry. Examples include
`Domino's in 2011, Applebee's in 2013, and Subway in 2014." (Id. at ¶ 27.)
`• "Loyalty programs in the restaurant and hospitality business are desirable among consumers,
`however very few 'get it right' and struggle with instability and lack of speed, struggle with ongoing
`concerns about securing customer data, and struggle with mobile payment integration. Despite
`the increasing importance and usage of catering apps, very few of these apps (e.g., Starbucks and
`Domino's pizza tracker) are successful in meeting the expectations of consumers, according to the
`Application Resource Center (ARC), which considers data from nearly one million app store
`reviews across the Apple App Store and Google Play." (Id. at ¶ 28.)
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`Dr. Valerdi confirmed that claims 9 and 10 as part of the IAA-based claimed systems
`describe inventive concepts and improve the use of computers:
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`The technologies described and claimed in the '651 patent contain at least
`13.
`the following inventive concepts that enhance computer technology: (1) being able
`to understand and convert both fixed format and free format messaging -
`unstructured data such as in an e-mail/text message or via voice to text conversion
`(Claim 1: a; Claim 2: a; Claim 3: a), (2) being able to concurrently handle both free
`and fixed format messaging through a variety of communication conversions
`(Claim 1: f and g; Claim 2: f and g; Claim 3: f, g, and h), (3) being able to make
`and execute intelligent decisions by accessing and applying intelligent automated
`assistant technology (Claim 1: a and f; Claim 2: a and f; Claim 3: a and f), and (4)
`while being able to do the foregoing, also being able to (a) use a mobile application
`wirelessly to interface with a back office hospitality software application (Claim
`9), or (b) interface a frequent customer program to a back office hospitality software
`application (Claim 10).
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`(Amended Compl., Ex. B at ¶ 13.)
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`Dr. Valerdi also confirmed that:
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`[t]he claims as understood by a POSITA, after reading the specification and
`reviewing the figures, provide a roadmap for how to develop a computer system
`optimized for hospitality applications (e.g., online reservations using a handheld
`device that utilizes both fixed and free format messaging and intelligent automated
`assistant technologies. Additionally, the specification and figures as understood by
`a POSITA describe how to use a mobile application wirelessly to interface with a
`back office hospitality software application (Claim 9), and also being able to
`interface a frequent customer program to a back office hospitality software
`application (Claim 10). The claims themselves also guide a POSITA and provide
`a roadmap of how to build and integrate the disclosed computer system. Namely,
`the
`'651 patent includes: an architecture, measures of effectiveness and
`performance, and technical guidance and requirements.
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`(Id. at ¶ 41.)
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`2
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`Case 1:20-cv-00518-LPS Document 24 Filed 09/28/20 Page 4 of 6 PageID #: 605
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`Further, Dr. Valerdi identified from the specification and asserted claims the technical
`requirements of how to select the type of hardware and software for the claimed computer systems.
`(Id. at ¶ 47.)
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`These new inventive concepts were not "'well-understood, routine, and conventional
`activit[ies]' previously known to the industry." Alice Corp. v. CLS Bank Int'l, 573 U.S. 208, 225
`(2014) (quoting Mayo Collaborative Services v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1294
`(2012)).
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`As further evidence of the non-conventionality of claim 10 in 2005 (many years ahead of
`industry giants, (see, e.g., Amended Compl., Ex. B at ¶ 19)), Ameranth first deployed a mobile
`frequency/loyalty solution with Zagat and its loyal customer base as part of its Magellan System
`in November 2005 (built from the '651 specification). (Amended Compl. at ¶ 24)
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`Zagat Partnership: Zagat Survey, the world's leading provider of consumer survey–
`based dining, travel and leisure information, has a loyal customer base that
`regularly uses zagat.com and ubiquitous Zagat printed guides to select their dining
`experience. . . . . Ameranth's partnership with Zagat Survey now provides direct
`reservations capabilities from zagat.com to all Zagat rated restaurants utilizing the
`Magellan reservations service.
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`(Amended Compl., Ex. F (emphasis added); see also Amended Compl. at ¶ 24.)
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`The admissions from Defendant go much farther than just confirming the eligibility of
`these two new dependent claims. (Amended Compl. at ¶¶ 25-30.) For example, the admissions
`undermine and contradict Defendant's attorney arguments alleging that Ameranth's July 2005
`inventions were simple, conventional and merely "that the '651 patent describes its purported
`invention as automating existing "pen and paper" tasks (e.g., food orders and reservations)." (D.I.
`14 at 1.) For example, Defendant admitted , "As the consumer has adopted the smartphone really
`and it's sort of a, maybe now an obvious thing, but at the time that we started [in 2005], it wasn't
`obvious." (Amended Compl. at ¶¶ 26, 29; see also Amended Compl, Ex. B at ¶ 26.)
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`Ameranth's factual allegations must be viewed in the light most favorable to Ameranth,
`and they suffice to overcome a Rule 12 motion. See Cellspin Soft, Inc. v. Fitbit, Inc., 927 F.3d
`1306, 1316-19 (Fed. Cir. 2019); see also MyMail, Ltd. v. ooVoo, LLC, 934 F.3d 1373, 1379 (Fed.
`Cir. 2019) ("Patent eligibility may be determined on a Rule 12(c) motion, but only when there are
`no factual allegations that, if taken as true, prevent resolving the eligibility question as a matter of
`law."); Aatrix Software, Inc. v. Green Shades Software, Inc., 882 F.3d 1121, 1127-28 (Fed. Cir.
`2018) ("Viewed in favor of Aatrix, as the district court must at the Rule 12(b)(6) stage, the
`complaint alleges that the claimed combination improves the functioning and operation of the
`computer itself."). A patent is presumed valid and patent-eligible, Cellspin, 927 F.3d at 1319, and
`Defendant must rebut that presumption with clear and convincing evidence. Berkheimer v. HP
`Inc., 881 F.3d 1360, 1368 (2018). The asserted claims of the '651 patent are valid and eligible. No
`record evidence rebuts the presumption or satisfies this burden of proof, and Defendant's motion
`should be denied.
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`Case 1:20-cv-00518-LPS Document 24 Filed 09/28/20 Page 5 of 6 PageID #: 606
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`Dated: September 28, 2020
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`/s/ Richard C. Weinblatt
`Stamatios Stamoulis #4606
`Richard C. Weinblatt #5080
`Stamoulis & Weinblatt LLC
`800 N. West Street, Third Floor
`Wilmington, DE 19801
`(302) 999-1540
`stamoulis@swdelaw.com
`weinblatt@swdelaw.com
`
`Attorneys for Plaintiff
`Ameranth, Inc.
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`4
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`Case 1:20-cv-00518-LPS Document 24 Filed 09/28/20 Page 6 of 6 PageID #: 607
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`CERTIFICATE OF SERVICE
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` I
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` hereby certify that on September 28, 2020, I electronically filed the above document(s)
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`with the Clerk of Court using CM/ECF which will send electronic notification of such filing(s) to
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`all registered counsel.
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`/s/ Richard C. Weinblatt
`Richard C. Weinblatt
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