Case 1:20-cv-00518-LPS Document 25 Filed 09/29/20 Page 1 of 3 PageID #: 608
`M O R R I S , N I C H O L S , A R S H T & T U N N E L L L L P
`1201 NORTH MARKET STREET
`P.O. BOX 1347
`WILMINGTON, DELAWARE 19899-1347
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`
`
`
`
`The Honorable Leonard P. Stark
`J. Caleb Boggs Federal Building
`844 N. King Street
`Wilmington, Delaware 19801
`
`(302) 658-9200
`(302) 658-3989 FAX
`September 29, 2020
`
`
`Re: Ameranth, Inc. v. Olo Inc., C.A. No. 20-518-LPS
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`
`Dear Chief Judge Stark:
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`Defendant Olo Inc. (“Olo”) respectfully submits this further supplemental letter brief
`pursuant to the parties’ stipulation (D.I. 23) in advance of the September 30, 2020 Hearing on
`Olo’s Motion To Dismiss (D.I. 8). The proposed amended complaint of Plaintiff Ameranth, Inc.
`(“Ameranth”) (D.I. 23-1, 23-2) does nothing to confer eligibility under § 101 to newly asserted
`claims 9 and 10, or to previously asserted claims 1, 3, 6, and 11 of U.S. Patent No. 9,747,651.
`
`As discussed in Olo’s motion briefing, all asserted claims of the ’651 patent are directed to
`the abstract idea of communicating hospitality-related information using a system that is capable
`of synchronous communications and messaging. (D.I. 9 at 8-10 (claims 1, 3, 6, and 11); D.I. 20-
`1 (dependent claims 9 and 10).) The patent admits that restaurants and other “hospitality” services
`previously used humans with “pen and paper” to take orders and reservations. (D.I. 9 at 5-6; ’651,
`col. 1:38-41, 2:52-55.) The patent proposes an idea for automating this process with an
`“information management and synchronous communications system,” but does not teach how to
`program the system. (D.I. 9 at 5-6; ’651, col. 3:1-24, 3:28 et seq.) The patent explicitly admits
`that it does not provide any improved new hardware or software, but merely uses conventional
`components and programming. (’651, col. 6:63-7:18, 13:12-17; D.I. 9 at 7-8, 11-13; D.I. 20-1 at
`2.) The same is true for the mobile applications and handheld wireless devices of dependent claims
`9 and 10. (’651, col. 1:47-51, 2:13-16, 6:35-39, 6:63-7:18, 12:12-17, 12:28-38.) As such, the
`focus of the claimed invention is not a “specific means or method that improves the relevant
`technology” but merely a “result or effect that itself is the abstract idea and merely invokes generic
`processes and machinery.” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1241 (Fed. Cir. 2016).
`The asserted claims do not recite transformative elements that provide significantly more than the
`abstract idea itself. (D.I. 9 at 13-15.)
`
`Ameranth’s new allegations do nothing to avoid ineligibility. First, Ameranth appears now
`to argue that the claims are patentable because they are focused on “the hospitality industry” and
`that the industry, including Olo, were not early adopters of mobile or smartphone applications.
`(D.I. 24.) But none of Ameranth’s new allegations contradict or undermine any of Olo’s positions.
`In fact, the ’651 patent itself states that “pen and paper have prevailed in the hospitality industry”
`due to the slow adoption of handheld devices in that industry. (D.I. 9 at 5; ’651, 1:38-59.) The
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`Case 1:20-cv-00518-LPS Document 25 Filed 09/29/20 Page 2 of 3 PageID #: 609
`
`The Honorable Leonard P. Stark
`September 29, 2020
`Page 2
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`same background applied to the four related Ameranth patents the Federal Circuit held invalid,
`which were all directed to ineligible “hospitality” related ideas. Apple, 842 F.3d at 1235-42;
`Ameranth, Inc. v. Domino’s Pizza, LLC, 792 Fed.Appx. 780, 788 (Fed. Cir. Nov. 1, 2019)
`(invalidating claims directed to the idea of “configuring and transmitting hospitality menu related
`information using a system that is capable of synchronous communications and automatic
`formatting”). Regardless of their field, the asserted claims are impermissibly result-oriented and
`abstract. In re TLI Comm’ns LLC Patent Litig., 823 F.3d 607, 613 (Fed. Cir. 2016) (“although the
`claims limit the abstract idea to a particular environment — a mobile telephone system — that
`does not make the claims any less abstract”).
`
`Furthermore, because the abstract idea itself relates to the hospitality field—an idea for
`automating hospitality-related communications, such as restaurant orders and reservations, that
`previously used pen-and-paper—limiting the idea to the hospitality field cannot supply an
`inventive concept. Domino’s Pizza, 792 Fed.Appx. at 787 (“a claimed invention’s use of the
`ineligible concept to which it is directed cannot supply the inventive concept that renders the
`invention ‘significantly more’ than that ineligible concept.”) (quoting BSG Tech LLC v.
`Buyseasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018)); see also Elec. Power Grp., LLC v. Alstom
`SA, 830 F.3d 1350, 1354 (Fed. Cir. 2016) (“obviously, limiting the claims to the particular
`technological environment of power-grid monitoring is, without more, insufficient to transform
`them into patent-eligible applications of the abstract idea at their core”).
`
`Ameranth similarly misses the mark with its allegations that the claims recite non-routine
`and non-conventional ideas that were not previously implemented. (D.I. 24.) It is well-settled that
`alleged novelty does not confer eligibility. (D.I. 9 at 18 (citing cases).) Indeed, the Court may
`assume that the claimed ideas were “groundbreaking, innovative, or even brilliant,” but that is not
`enough for eligibility. Domino’s Pizza, 792 Fed.Appx. at 788 (“[t]hat some of the steps were not
`previously employed is not enough—standing alone—to confer patent eligibility”) (citations and
`internal ellipses omitted). The Federal Circuit held invalid the similar ’077 patent claims over
`similar allegations of novelty and non-conventionality in several declarations submitted by
`Ameranth. Id. (discussing declarations). Likewise here, the asserted claims fail the Alice test
`because they are “essentially result-focused” and “describe a desired result but do not instruct how
`to accomplish that result.” Id. at 787 (emphasis added) (citation omitted).
`
`Ameranth’s allegations about “intelligent automated assistants (IAA)” similarly fail to
`demonstrate any patent-eligible invention. (D.I. 24 at 2.) As explained in Olo’s motion briefing,
`the claims and specification do not describe how to program an “intelligent automated assistant.”
`The patent merely proposes an ineligible high-level idea: instead of a human who uses pen and
`paper, it would be nice to have an “automated” assistant, and to somehow create it using only
`conventional hardware and software such as existing voice recognition systems—but the
`“programming details” are omitted. (D.I. 9 at 7, 11-13, 14; ’651, col. 6:63-7:18, 13:12-17, 14:66-
`15:51.) As the Federal Circuit noted when holding invalid three related Ameranth patents, “[i]t is
`not enough to point to conventional applications and say ‘do it on a computer.’” Apple, 842 F.3d
`at 1243 (citation omitted).
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`Case 1:20-cv-00518-LPS Document 25 Filed 09/29/20 Page 3 of 3 PageID #: 610
`
`The Honorable Leonard P. Stark
`September 29, 2020
`Page 3
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`Finally, the proposed amended complaint does not demonstrate any eligible invention in
`newly asserted dependent claims 9 and 10. Ameranth’s allegations that these claims “improve the
`use of computers” and conclusory expert opinions (D.I. 24 at 2) are not “plausible and specific”
`assertions grounded in the patent itself. Cellspin Soft, Inc. v. Fitbit, Inc., 927 F.3d 1306, 1316-19
`(Fed. Cir. 2019); Glasswall Solutions v. Clearswift Ltd., No. 2018-1407, 2018 U.S. App. LEXIS
`35818, at *5 (Fed. Cir. Dec. 20, 2018); Move, Inc. v. Real Estate Alliance Ltd., 721 F. App’x 950,
`957 (Fed. Cir. 2018). Claims 9 and 10 also recite only high-level desired functional results for the
`communication system of claim 1. (’651 claim 9 (“The system of claim 1, wherein a mobile
`application operating on a wireless handheld computing device is used to interface with the back
`office hospitality software application”), claim 10 (“The system of claim 1, wherein a frequent
`customer mobile application operating on a wireless handheld computing device is used to
`interface with the back office hospitality software application”).) Claims 9 and 10 recite only
`open-ended functional aspirations that mobile applications are somehow, in some unspecified way,
`“used to interface” with back office software. The specification admits that wireless handheld
`devices and mobile device software such as Windows CE, an operating system with
`communication tools, were “common” in the prior art. (’651, 1:50-51 (“Also in common use are
`portable laptop and handheld devices.”), 2:13-16 (“With the advent of the Palm® and other
`handheld wireless devices, however, the efforts to make such devices ubiquitous have begun to
`bear fruit at least in some areas”), 6:35-39 (discussing “common” software such as “Windows
`CE® for handheld wireless devices”), 12:28-38.) The patent admits that it does not provide any
`new software programming or devices, whether for mobile applications or otherwise, as noted
`previously. (D.I. 9 at 7-8; ’651, col. 6:63-7:18, 13:12-17.)
`
`In sum, in view of the claim language and the specification’s admissions, the allegations
`in Ameranth’s proposed amended complaint cannot change the fundamental § 101 defect: the
`asserted claims fail to provide “the specificity required to transform [the] claim from one claiming
`only a result to one claiming a way of achieving it.” Am. Axle & Mfg., Inc. v. Neapco Holdings
`LLC, No. 18-1763, at 16-17 (Fed. Cir. 2020) (citation omitted).
`
`
`Respectfully,
`
`/s/ Karen Jacobs
`
`Karen Jacobs (#2881)
`
`All Counsel of Record (by e-mail)
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`cc:
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