Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 1 of 17 PageID #: 831
`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 1 of 17 PagelD #: 831
`
`
`
`
`
`
`
`
`
`EXHIBIT A
`EXHIBIT A
`
`

`

`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 2 of 17 PageID #: 832
`
`Mead, Lowell
`
`From:
`Sent:
`To:
`Cc:
`Subject:
`Attachments:
`
`Mead, Lowell
`Friday, October 16, 2020 11:04 AM
`Richard C. Weinblatt
`Shekhar Vyas; Jacobs, Karen; Keefe, Heidi
`Ameranth v Olo
`101320 Memorandum Order.pdf
`
`Rich,
`
`Now that the Court’s section 101 memorandum order is entered into the docket (attached), please note that we do not
`see a good faith basis for Ameranth to appeal from Judge Stark’s well-reasoned ruling. Please confirm that Ameranth
`will not appeal.
`
`Please also note that Olo reserves rights to seek fees in view of Ameranth’s conduct and positions.
`
`Best regards,
`
`Lowell
`
`Lowell D. Mead
`Cooley LLP
`3175 Hanover Street
`Palo Alto, CA 94304-1130
`Mobile: (650) 520-0788
`Office direct: (650) 843-5734
`Email: lmead@cooley.com
`
`
`
`1
`
`

`

`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 3 of 17 PageID #: 833
`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 3 of 17 PagelD #: 833
`
`EXHIBIT B
`EXHIBIT B
`
`

`

`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 4 of 17 PageID #: 834
`
`Mead, Lowell
`
`From:
`Sent:
`To:
`Cc:
`Subject:
`
`Mead, Lowell
`Monday, October 19, 2020 2:55 PM
`Richard C. Weinblatt
`Shekhar Vyas; Jacobs, Karen; Keefe, Heidi
`RE: Ameranth v Olo
`
`Rich,
`
`Thanks for your response. Ameranth has no legitimate basis for an appeal on the merits. The case will only become
`more exceptional if Ameranth proceeds with an appeal from the Court’s well-reasoned ruling, needlessly causing Olo to
`incur further defense costs. See Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372 (Fed. Cir. 2017)
`(affirming award of § 285 fees against your client for baseless § 101 position, including fees incurred during appeal).
`
`For the record, we note that the record supports a finding that this is an exceptional case warranting an award of fees
`against Ameranth under § 285, as confirmed by the Court’s ruling. It was readily foreseeable that the asserted claims of
`the ‘651 patent were clearly ineligible under § 101 under the same rationale the Federal Circuit applied when it held
`invalid Ameranth’s four related patents, including the same dispositive admissions in the patent specification. As
`reflected in the Court’s order, Ameranth attempted to salvage its invalid claims with assertions that contradict the
`patent itself and were not credible. See also, e.g., Finnavations LLC v. Payoneer, Inc., C.A. No. 1:18-cv-00444-RGA, 2019
`WL 1236358, at *2 (D. Del. Mar. 18, 2019) (granting § 285 fees award against your client: “This was not a ‘borderline
`case’ with an unpredictable result. Any reasonable patent attorney with an understanding of § 101 law could have
`predicted the outcome.”).
`
`To the extent that Ameranth nonetheless continues to consider the possibility of appealing, please promptly let us know
`if Ameranth is amenable to stipulating to postpone the timing for the filing of any motions for fees and/or costs until 21
`days after the later of (1) mandate from the Federal Circuit, or (2) expiration of the deadline to appeal.
`
`Best,
`
`Lowell
`
`Lowell D. Mead
`Cooley LLP
`Mobile: (650) 520-0788
`Office direct: (650) 843-5734
`
`From: Richard C. Weinblatt <weinblatt@swdelaw.com>
`Sent: Monday, October 19, 2020 1:12 PM
`To: Mead, Lowell <lmead@cooley.com>
`Cc: Shekhar Vyas <vyas@swdelaw.com>; Jacobs, Karen <KJacobs@MNAT.com>; Keefe, Heidi <hkeefe@cooley.com>
`Subject: RE: Ameranth v Olo
`
`[External]
`
`Lowell:
`
`Ameranth disagrees with your characterization of the case/ruling, it is currently contemplating its next steps and it has
`until November 12, 2020 to decide whether to appeal Judge Stark's decision. While we understand your desire to know
`what Ameranth is going to do, it is premature for Ameranth to respond at this point in time.
`
`1
`
`

`

`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 5 of 17 PageID #: 835
`
`
`Regards,
`
`Rich
`
`
`Richard C. Weinblatt
`Stamoulis & Weinblatt LLC
`www.swdelaw.com
`
`From: Mead, Lowell <lmead@cooley.com>
`Sent: Friday, October 16, 2020 2:04 PM
`To: Richard C. Weinblatt <weinblatt@swdelaw.com>
`Cc: Shekhar Vyas <vyas@swdelaw.com>; Jacobs, Karen <KJacobs@MNAT.com>; Keefe, Heidi <hkeefe@cooley.com>
`Subject: Ameranth v Olo
`
`Rich,
`
`Now that the Court’s section 101 memorandum order is entered into the docket (attached), please note that we do not
`see a good faith basis for Ameranth to appeal from Judge Stark’s well-reasoned ruling. Please confirm that Ameranth
`will not appeal.
`
`Please also note that Olo reserves rights to seek fees in view of Ameranth’s conduct and positions.
`
`Best regards,
`
`Lowell
`
`Lowell D. Mead
`Cooley LLP
`3175 Hanover Street
`Palo Alto, CA 94304-1130
`Mobile: (650) 520-0788
`Office direct: (650) 843-5734
`Email: lmead@cooley.com
`
`
`
`
`
`This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use,
`disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message.
`If you are the intended recipient, please be advised that the content of this message is subject to access, review and disclosure by the sender's Email System
`Administrator.
`
`2
`
`

`

`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 6 of 17 PageID #: 836
`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 6 of 17 PagelD #: 836
`
`EXHIBIT C
`EXHIBIT C
`
`

`

`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 7 of 17 PageID #: 837
`
`Mead, Lowell
`
`From:
`Sent:
`To:
`Cc:
`Subject:
`Attachments:
`
`Mead, Lowell
`Wednesday, February 10, 2021 2:29 PM
`'Richard C. Weinblatt'
`Shekhar Vyas; Jacobs, Karen; Keefe, Heidi
`RE: Ameranth v Olo
`2021-02-05 Order Granting In [dckt 134_0][7984].pdf
`
`Rich,
`
`We wanted to make sure you are aware of Judge Sabraw’s order (attached) finding Ameranth’s litigation against
`Domino’s Pizza in the Southern District of California to be exceptional under section 285 in view of factors including the
`weakness of Ameranth’s position on section 101 after the Federal Circuit’s decision in the Apple appeal.
`
`Similar reasoning applies to the present case that Ameranth filed in Delaware, where Ameranth had the Federal Circuit’s
`guidance from the Apple case as well as the Domino’s Pizza case invalidating Ameranth’s related patents. Ameranth’s
`pending appeal only makes this case more exceptional.
`
`As explained previously, Olo reserves all rights to seek all appropriate relief, including attorneys’ fees and costs. We
`would suggest that Ameranth reconsider its position regarding pressing forward with the current appeal.
`
`If you would like to discuss further, please let us know.
`
`Best regards,
`
`Lowell
`
`Lowell D. Mead
`Cooley LLP
`Mobile: (650) 520-0788
`Office direct: (650) 843-5734
`
`From: Richard C. Weinblatt <weinblatt@swdelaw.com>
`Sent: Friday, October 23, 2020 4:47 PM
`To: Mead, Lowell <lmead@cooley.com>
`Cc: Shekhar Vyas <vyas@swdelaw.com>; Jacobs, Karen <KJacobs@MNAT.com>; Keefe, Heidi <hkeefe@cooley.com>
`Subject: RE: Ameranth v Olo
`
`[External]
`
`Lowell:
`
`Ameranth's edits are attached. If they are acceptable, you are authorized to e-sign my name and file it.
`
`Thanks.
`
`Regards,
`
`Rich
`
`
`1
`
`

`

`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 8 of 17 PageID #: 838
`
`
`Richard C. Weinblatt
`Stamoulis & Weinblatt LLC
`www.swdelaw.com
`
`From: Mead, Lowell <lmead@cooley.com>
`Sent: Friday, October 23, 2020 7:03 PM
`To: Richard C. Weinblatt <weinblatt@swdelaw.com>
`Cc: Shekhar Vyas <vyas@swdelaw.com>; Jacobs, Karen <KJacobs@MNAT.com>; Keefe, Heidi <hkeefe@cooley.com>
`Subject: RE: Ameranth v Olo
`
`Rich,
`
`Please see attached draft stipulation for your review.
`
`Best,
`
`Lowell
`
`Lowell D. Mead
`Cooley LLP
`Mobile: (650) 520-0788
`Office direct: (650) 843-5734
`
`From: Richard C. Weinblatt <weinblatt@swdelaw.com>
`Sent: Thursday, October 22, 2020 1:33 PM
`To: Mead, Lowell <lmead@cooley.com>
`Cc: Shekhar Vyas <vyas@swdelaw.com>; Jacobs, Karen <KJacobs@MNAT.com>; Keefe, Heidi <hkeefe@cooley.com>
`Subject: RE: Ameranth v Olo
`
`[External]
`
`Lowell:
`
`Ameranth agrees to your alternative proposal. Please send us a proposed stipulation.
`
`Thanks.
`
`Regards,
`
`Rich
`
`
`Richard C. Weinblatt
`Stamoulis & Weinblatt LLC
`www.swdelaw.com
`
`From: Mead, Lowell <lmead@cooley.com>
`Sent: Thursday, October 22, 2020 3:15 PM
`To: Richard C. Weinblatt <weinblatt@swdelaw.com>
`Cc: Shekhar Vyas <vyas@swdelaw.com>; Jacobs, Karen <KJacobs@MNAT.com>; Keefe, Heidi <hkeefe@cooley.com>
`Subject: RE: Ameranth v Olo
`
`2
`
`

`

`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 9 of 17 PageID #: 839
`
`
`Rich,
`
`Please let us know Ameranth’s position so we can proceed accordingly. As an alternative, please let us know if
`Ameranth would be willing to stipulate that in the event that Ameranth appeals, any motion for fees and costs for this
`action will be due 21 days after mandate from appeal. Under that proposal, if Ameranth does not appeal, then Olo
`would not move for fees and costs, conserving resources for both sides and for the courts.
`
`If you would like, we are available to discuss by phone at your convenience as well.
`
`Best,
`
`Lowell
`
`Lowell D. Mead
`Cooley LLP
`Mobile: (650) 520-0788
`Office direct: (650) 843-5734
`
`From: Mead, Lowell
`Sent: Wednesday, October 21, 2020 12:43 PM
`To: 'Richard C. Weinblatt' <weinblatt@swdelaw.com>
`Cc: Shekhar Vyas <vyas@swdelaw.com>; Jacobs, Karen <KJacobs@MNAT.com>; Keefe, Heidi <hkeefe@cooley.com>
`Subject: RE: Ameranth v Olo
`
`Rich,
`
`To address the question we asked, is Ameranth amenable to stipulating to postpone the timing for the filing of any
`motions for fees and/or costs until 21 days after the later of (1) mandate from the Federal Circuit, or (2) expiration of
`the deadline to appeal?
`
`Best,
`
`Lowell
`
`Lowell D. Mead
`Cooley LLP
`Mobile: (650) 520-0788
`Office direct: (650) 843-5734
`
`From: Richard C. Weinblatt <weinblatt@swdelaw.com>
`Sent: Wednesday, October 21, 2020 12:36 PM
`To: Mead, Lowell <lmead@cooley.com>
`Cc: Shekhar Vyas <vyas@swdelaw.com>; Jacobs, Karen <KJacobs@MNAT.com>; Keefe, Heidi <hkeefe@cooley.com>
`Subject: RE: Ameranth v Olo
`
`[External]
`
`Lowell:
`
`As Ameranth already has indicated, it is premature for it to decide its appeal plans and one factor in its analysis/choice
`will be whether OLO proceeds with a frivolous exceptional case motion or not.
`
`Regards,
`
`3
`
`

`

`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 10 of 17 PageID #: 840
`
`
`Rich
`
`
`Richard C. Weinblatt
`Stamoulis & Weinblatt LLC
`www.swdelaw.com
`
`From: Mead, Lowell <lmead@cooley.com>
`Sent: Wednesday, October 21, 2020 3:35 PM
`To: Richard C. Weinblatt <weinblatt@swdelaw.com>
`Cc: Shekhar Vyas <vyas@swdelaw.com>; Jacobs, Karen <KJacobs@MNAT.com>; Keefe, Heidi <hkeefe@cooley.com>
`Subject: RE: Ameranth v Olo
`
`Rich,
`
`
`We haven’t received any response to the correspondence below from Monday. Please promptly let us know
`Ameranth’s position so that we can proceed accordingly.
`
`
`Best,
`
`
`Lowell
`
`
`Lowell D. Mead
`Cooley LLP
`Mobile: (650) 520-0788
`Office direct: (650) 843-5734
`
`
`From: Mead, Lowell
`Sent: Monday, October 19, 2020 2:55 PM
`To: 'Richard C. Weinblatt' <weinblatt@swdelaw.com>
`Cc: Shekhar Vyas <vyas@swdelaw.com>; Jacobs, Karen <KJacobs@MNAT.com>; Keefe, Heidi <hkeefe@cooley.com>
`Subject: RE: Ameranth v Olo
`
`
`Rich,
`
`
`Thanks for your response. Ameranth has no legitimate basis for an appeal on the merits. The case will only become
`more exceptional if Ameranth proceeds with an appeal from the Court’s well-reasoned ruling, needlessly causing Olo to
`incur further defense costs. See Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372 (Fed. Cir. 2017)
`(affirming award of § 285 fees against your client for baseless § 101 position, including fees incurred during appeal).
`
`
`For the record, we note that the record supports a finding that this is an exceptional case warranting an award of fees
`against Ameranth under § 285, as confirmed by the Court’s ruling. It was readily foreseeable that the asserted claims of
`the ‘651 patent were clearly ineligible under § 101 under the same rationale the Federal Circuit applied when it held
`invalid Ameranth’s four related patents, including the same dispositive admissions in the patent specification. As
`reflected in the Court’s order, Ameranth attempted to salvage its invalid claims with assertions that contradict the
`patent itself and were not credible. See also, e.g., Finnavations LLC v. Payoneer, Inc., C.A. No. 1:18-cv-00444-RGA, 2019
`WL 1236358, at *2 (D. Del. Mar. 18, 2019) (granting § 285 fees award against your client: “This was not a ‘borderline
`case’ with an unpredictable result. Any reasonable patent attorney with an understanding of § 101 law could have
`predicted the outcome.”).
`
`
`4
`
`

`

`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 11 of 17 PageID #: 841
`
`To the extent that Ameranth nonetheless continues to consider the possibility of appealing, please promptly let us know
`if Ameranth is amenable to stipulating to postpone the timing for the filing of any motions for fees and/or costs until 21
`days after the later of (1) mandate from the Federal Circuit, or (2) expiration of the deadline to appeal.
`
`
`Best,
`
`
`Lowell
`
`
`Lowell D. Mead
`Cooley LLP
`Mobile: (650) 520-0788
`Office direct: (650) 843-5734
`
`
`From: Richard C. Weinblatt <weinblatt@swdelaw.com>
`Sent: Monday, October 19, 2020 1:12 PM
`To: Mead, Lowell <lmead@cooley.com>
`Cc: Shekhar Vyas <vyas@swdelaw.com>; Jacobs, Karen <KJacobs@MNAT.com>; Keefe, Heidi <hkeefe@cooley.com>
`Subject: RE: Ameranth v Olo
`
`[External]
`
`Lowell:
`
`
`Ameranth disagrees with your characterization of the case/ruling, it is currently contemplating its next steps and it has
`until November 12, 2020 to decide whether to appeal Judge Stark's decision. While we understand your desire to know
`what Ameranth is going to do, it is premature for Ameranth to respond at this point in time.
`
`
`Regards,
`
`
`Rich
`
`
`
`Richard C. Weinblatt
`Stamoulis & Weinblatt LLC
`www.swdelaw.com
`
`
`From: Mead, Lowell <lmead@cooley.com>
`Sent: Friday, October 16, 2020 2:04 PM
`To: Richard C. Weinblatt <weinblatt@swdelaw.com>
`Cc: Shekhar Vyas <vyas@swdelaw.com>; Jacobs, Karen <KJacobs@MNAT.com>; Keefe, Heidi <hkeefe@cooley.com>
`Subject: Ameranth v Olo
`
`
`Rich,
`
`
`Now that the Court’s section 101 memorandum order is entered into the docket (attached), please note that we do not
`see a good faith basis for Ameranth to appeal from Judge Stark’s well-reasoned ruling. Please confirm that Ameranth
`will not appeal.
`
`
`Please also note that Olo reserves rights to seek fees in view of Ameranth’s conduct and positions.
`
`
`Best regards,
`
`
`Lowell
`
`5
`
`

`

`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 12 of 17 PageID #: 842
`
`
`
`Lowell D. Mead
`Cooley LLP
`3175 Hanover Street
`Palo Alto, CA 94304-1130
`Mobile: (650) 520-0788
`Office direct: (650) 843-5734
`Email: lmead@cooley.com
`
`
`
`
`
`This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use,
`disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message.
`If you are the intended recipient, please be advised that the content of this message is subject to access, review and disclosure by the sender's Email System
`Administrator.
`
`
`
`
`This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use,
`disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message.
`If you are the intended recipient, please be advised that the content of this message is subject to access, review and disclosure by the sender's Email System
`Administrator.
`
`
`
`
`This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use,
`disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message.
`If you are the intended recipient, please be advised that the content of this message is subject to access, review and disclosure by the sender's Email System
`Administrator.
`
`
`
`
`This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use,
`disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message.
`If you are the intended recipient, please be advised that the content of this message is subject to access, review and disclosure by the sender's Email System
`Administrator.
`
`6
`
`

`

`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 13 of 17 PageID #: 843
`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 13 of 17 PagelD #: 843
`
`
`
`
`
`
`
`
`
`EXHIBIT D
`EXHIBIT D
`
`

`

`Ameranth, Inc. :: Leading provider of wireless and Internet based solutions for hospitality, health care and financial markets.
`7/7/22, 3:36 PM
`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 14 of 17 PageID #: 844
`Tuesday, October 6, 2020
`"Dozens of Patent Claims Remain Valid Across Ameranth's Three '077,'060,'651 patents; a
`Fourth Patent Allowance With 20 Additional Claims is Expected Soon And A Fifth Patent
`For Late 2021 Is Also Expected."
`Even Just A Single Infringed Claim Leads To Major Patentee Trial Victory
`
`Click here for PDF version
`
`www.ameranth.com/news.html
`
`1/1
`
`

`

`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 15 of 17 PageID #: 845
`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 15 of 17 PagelD #: 845
`
`
`
`
`
`
`
`
`
`EXHIBIT E
`EXHIBIT E
`
`

`

`Justices Skip Software Co.'s Patent Eligibility Row - Law360
`7/7/22, 3:37 PM
`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 16 of 17 PageID #: 846
`
`Portfolio Media. Inc. | 111 West 19th Street, 5th floor | New York, NY 10011 | www.law360.com
`Phone: +1 646 783 7100 | Fax: +1 646 783 7161 | customerservice@law360.com
`
`Justices Skip Software Co.'s Patent Eligibility Row
`
`By Andrew Karpan
`Law360 (June 13, 2022, 5:27 PM EDT) -- The U.S. Supreme Court on Monday quietly rejected yet
`another petition that attempted to staple a patent eligibility loss to the widely watched American Axle
`case.
`
`The bad news came for a small software company called Ameranth, notable for filing more than 40
`suits in federal courts around the country against companies like Domino's Pizza, Pizza Hut Inc., Papa
`John's USA and GrubHub Inc.
`
`One of the company's latest legal fights was with Olo, a New York restaurant software startup that
`debuted on the New York Stock Exchange last year. Ameranth's president, a former designer for a
`defense contractor, had received a patent covering a "new and useful intelligent automated assistant"
`that he had designed; his company claimed Olo was ripping him off.
`
`Ameranth's petition had pitched the case to the justices as related to the same issues in patent law
`that the Supreme Court had been presented in a different patent case called American Axle &
`Manufacturing Inc. v. Neapco Holdings LLC, a pending appeal that also turns on how lower courts
`decide what kind of inventions can be legally protected by patent law.
`
`Like the American Axle case, the lawsuit from Ameranth had not fared well in the courts. Delaware's
`then-U.S. District Judge Leonard Stark — who has since been appointed to the Federal Circuit —
`quickly ruled during one of his "Section 101 Days," in which the judge streamlines hearings
`for questions arising from Section 101 of the Patent Act, hearings that some of the claims at
`the center of Ameranth's patent were ineligible, citing the Supreme Court's 2014 Alice ruling. The
`Alice ruling had created the two-part legal test that judges now use when making these kinds of
`determinations on patent eligibility.
`
`After hearing oral arguments last year, a panel of Federal Circuit judges quickly affirmed Judge
`Stark's reasoning without comment, as did the Supreme Court on Monday.
`
`Keith McNally, the Ameranth president, had been convinced his company had a shot with the justices
`following their interest in the American Axle case, as the underlying rulings in both cases were made
`by the same former federal judge in Delaware.
`
`"Judge Stark, who wrote the American Axle district court opinion, wrote our opinion too, so obviously
`he applied the same application of the Alice ruling," McNally told Law360 in an interview back in
`March.
`
`The American Axle case, however, later resulted in a sharply split ruling from the full Federal
`Circuit over the eligibility of the driveshaft patent owned by American Axle, a Detroit parts maker
`that had accused a direct rival of patent infringement.
`
`Since an appeal in the case hit the Supreme Court's docket in late 2020, the justices have largely
`stayed mum on whether they will hear the case. As recently as last month, lawyers in the Biden
`Administration joined the chorus of voices asking the justices to use the case to take a new look
`at the legal question of what can and cannot be eligible for a patent.
`
`McNally told Law360 on Monday that the rejection from the justices will not stop him and his lawyers
`from avidly following the American Axle case. He wrote in an email that he is now betting the justices
`will take the American Axle case "at its conference two weeks from today." Then, his company will
`https://www.law360.com/articles/1502071/print?section=appellate
`
`1/2
`
`

`

`Justices Skip Software Co.'s Patent Eligibility Row - Law360
`7/7/22, 3:37 PM
`Case 1:20-cv-00518-GBW Document 39-1 Filed 07/11/22 Page 17 of 17 PageID #: 847
`ask the justices to change their mind.
`
`"Assuming this major event occurs on June 27, Ameranth will promptly file a 'rehearing motion,'
`which is our right, to the Supreme Court for them to then reconsider and 'hold' our petition pending
`their upcoming and much needed clarification of 101 law in American Axle," he said.
`
`He predicted that this would buy his company more time as "that 'rehearing request' would then be
`decided in the next term of court."
`
`Outside of an interest in breathing new life into its lawsuit against Olo, lawyers for Ameranth had
`also indicated they planned to use the American Axle case to try to beat a ruling in California
`federal court that found they owed at least $2.7 million in attorney fees over the company's failed
`lawsuit against Domino's Pizza, which had a different collection of patents, some of which were also
`found to be ineligible for patent protection.
`
`Over the past year, numerous companies like McNally's Ameranth have pegged their appeals to the
`American Axle case. Many of them, like McNally, say that because the Axle case does not involve
`looking at patents that cover ways to use computer technology – like the Supreme Court's initial
`Alice ruling did – the justices will be interested in picking up some cases that do.
`
`So far, they have not.
`
`"Irrespective of today's denial of cert," McNally said, "Ameranth still has three patents that remain
`entirely valid and two patents with some valid claims and an additional patent pending."
`
`Representatives for Olo did not return a request for comment.
`
`The patent-in-suit is U.S. Patent No. 9,747,651.
`
`Ameranth is represented by Jerrold J. Ganzfried of Ganzfried Law and Robert F. Ruyak of
`RuyakCherian LLP.
`
`Olo is represented by Heidi Keefe at Cooley LLP.
`
`The case is Ameranth Inc. v. Olo Inc., case number 21-1228, at the U.S. Supreme Court.
`
`--Additional reporting by Jasmin Jackson, Dani Kass, Elise Hansen and Ryan Davis. Editing by Alex
`Hubbard.
`
`All Content © 2003-2022, Portfolio Media, Inc.
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`https://www.law360.com/articles/1502071/print?section=appellate
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