Case 3:20-cv-05784-ZNQ-DEA Document 82 Filed 08/09/21 Page 1 of 16 PageID: 3063
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`
`
`Civil Action No. 20-05784-ZNQ-DEA
`
`Motion Date: August 16, 2021
`
`Oral Argument Requested
`
`
`Document Filed Electronically
`
`OANDA CORPORATION,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`GAIN CAPITAL HOLDINGS, INC., and GAIN
`CAPITAL GROUP, LLC,
`
`
`Defendants.
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`)
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`)
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`)
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`
`
`
`DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE
`PLEADINGS PURSUANT TO RULE 12(c)
`
`
`
`
`
`Aden M. Allen (aallen@wsgr.com)
`WILSON SONSINI GOODRICH &
`ROSATI P.C.
`900 S. Capital of Texas Hwy
`Las Cimas IV, 5th Floor
`Austin, TX 78746
`Telephone: (512) 338-5400
`
`
`Arnold B. Calmann (ACalmann@saiber.com)
`Katherine A. Escanlar (KEscanlar@saiber.com)
`SAIBER LLC
`One Gateway Center, Suite 950
`Newark, New Jersey 07102
`Telephone: (973) 622-3333
`
`Michael B. Levin (mlevin@wsgr.com)
`WILSON SONSINI GOODRICH &
`ROSATI P.C.
`650 Page Mill Road
`Palo Alto, CA 94304-1050
`Telephone: (650) 493-9300
`
`Natalie J. Morgan (nmorgan@wsgr.com)
`WILSON SONSINI GOODRICH &
`ROSATI P.C.
`12235 El Camino Real
`San Diego, California 92130
`Telephone: (858) 350-2300
`
`
`Attorneys for Defendants GAIN Capital
`Holdings, Inc. and GAIN Capital Group, LLC
`
`
`
`

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`Case 3:20-cv-05784-ZNQ-DEA Document 82 Filed 08/09/21 Page 2 of 16 PageID: 3064
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`
`
`I.
`
`II.
`
`III.
`
`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION .............................................................................................................. 1
`
`PRECEDENT FULLY SUPPORTS DISMISSAL WITH PREJUDICE DESPITE
`OANDA’S PLEADED “FACTS” ...................................................................................... 1
`
`OANDA FAILS TO SHOW THAT THE CLAIMS ARE DIRECTED TO A
`NON-ABSTRACT IDEA ................................................................................................... 5
`
`IV.
`
`OANDA FAILS TO SHOW AN INVENTIVE CONCEPT .............................................. 7
`
`1.
`
`2.
`
`The Court Need Not Accept OANDA’s Conclusory and
`Boilerplate Allegations ............................................................................... 8
`
`OANDA’s Alleged Inventive Concepts Are Not Technical
`Improvements but Implementations of the Abstract Ideas ......................... 9
`
`V.
`
`CONCLUSION ................................................................................................................. 12
`
`
`i
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`

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`Case 3:20-cv-05784-ZNQ-DEA Document 82 Filed 08/09/21 Page 3 of 16 PageID: 3065
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`
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`Aatrix Software, Inc. v. Green Shades Software, Inc.,
`
`882 F.3d 1121 (Fed. Cir. 2018)....................................................................................1, 2, 3
`
`Alice Corp. Pty. Ltd. v. CLS Bank Int’l,
`
`573 U.S. 208 (2014) .....................................................................................................1, 8, 9
`
`BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC,
`
`827 F.3d 1341 (Fed. Cir. 2016)......................................................................................2, 10
`
`Berkeley*IEOR v. Teradata Operations, Inc.,
`
`448 F. Supp. 3d 864 (N.D. Ill. 2020) ...................................................................................2
`
`Berkheimer v. HP Inc.,
`
`881 F.3d 1360 (Fed. Cir. 2018)............................................................................................1
`
`Boom! Payments, Inc. v. Stripe, Inc.,
`
`839 F. App’x 528 (Fed. Cir. 2021) ..................................................................................2, 3
`
`CardioNet, LLC v. InfoBionic, Inc.,
`
`816 F. App’x 471 (Fed. Cir. 2020) ......................................................................................2
`
`Cellspin Soft, Inc. v. Fitbit, Inc.,
`
`927 F.3d 1306 (Fed. Cir. 2019)............................................................................................2
`
`ChargePoint, Inc. v. SemaConnect, Inc.,
`
`920 F.3d 759 (Fed. Cir. 2019)............................................................................2, 3, 5, 9, 10
`
`Cleveland Clinic Found. v. True Health Diagnostics LLC,
`
`760 F. App’x 1013 (Fed. Cir. 2019) ................................................................................2, 3
`
`Diamond v. Diehr,
`
`450 U.S. 175 (1981) .............................................................................................................8
`
`Enfish, LLC v. Microsoft Corp.,
`
`822 F.3d 1327 (Fed. Cir. 2016)............................................................................................6
`
`FairWarning IP, LLC v. Iatric Sys.,
`
`839 F.3d 1089 (Fed. Cir. 2016)......................................................................................5, 10
`
`Fast 101 Pty Ltd. v. CitiGroup Inc.,
`
`834 F. App’x 591 (Fed. Cir. 2020) ......................................................................................6
`
`Fitbit Inc. v. AliphCom, No. 16-cv-00118-BLF,
`
`2017 WL 819235 (N.D. Cal. Mar. 2, 2017) .........................................................................7
`
`
`
`ii
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`

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`Case 3:20-cv-05784-ZNQ-DEA Document 82 Filed 08/09/21 Page 4 of 16 PageID: 3066
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`
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`Gottschalk v. Benson,
`
`409 U.S. 63 (1972) ...............................................................................................................7
`
`Intellectual Ventures I LLC v. Symantec Corp.,
`
`838 F.3d 1307 (Fed. Cir. 2016)............................................................................................9
`
`Interactive Wearables, LLC v. Polar Electro Oy,
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`501 F.Supp.3d 162 (E.D.N.Y. 2020) ...................................................................................2
`
`Ipa Techs, Inc. v. Amazon.com, Inc.,
`
`352 F. Supp. 3d 335 (D. Del. 2019) .....................................................................................8
`
`King Pharm., Inc. v. Eon Labs, Inc.,
`
`616 F.3d 1267 (Fed. Cir. 2010)........................................................................................5, 6
`
`Koninklike KPN NV v. Gemalto M2M GmbH,
`
`942 F.3d 1143 (Fed. Cir. 2019)............................................................................................6
`
`Money Suite Co. v. 21st Century Ins. & Fin. Servs., Inc., No. 13-984-GMS,
`
`2015 WL 436160 (D. Del. Jan. 27, 2015) ............................................................................4
`
`Mortg. Application Techs., LLC v. MeridianLink, Inc.,
`
`839 F. App’x 520 (Fed. Cir. 2021) ......................................................................................2
`
`SAP Am. Inc. v. InvestPic, LLC,
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`898 F.3d 1161 (Fed. Cir. 2018)............................................................................................6
`
`Secured Mail Sols., LLC v. Universal Wilde, Inc.,
`
`873 F.3d 905 (Fed. Cir. 2017)............................................................................................11
`
`Sensormatic Elecs., LLC v. Wyze Labs, Inc., No. 2020-2320,
`
`2021 U.S. App LEXIS 20789 (Fed. Cir. July 14, 2021) ......................................................2
`
`Simio, LLC v. FlexSim Software Prods., Inc.,
`
`983 F.3d 1353 (Fed. Cir. 2020)..........................................................................2, 3, 4, 8, 11
`
`Trading Techs. Int’l, Inc. v. CQG, Inc.,
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`675 F. App’x 1001 (Fed. Cir. 2017) ....................................................................................6
`
`Ubiquitous Connectivity, LP v. City of San Antonio, No. 18-cv-00718-XR,
`
`2019 U.S. Dist. LEXIS 165197 (W.D. Tex. Sept. 26, 2019) ...............................................5
`
`
`
`
`
`
`
`iii
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`

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`
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`I.
`
`INTRODUCTION
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`OANDA’s Opposition (D.I. 79) (“Opp’n”) attempts to prop up its patent-ineligible claims
`
`by asserting that its conclusory and insufficient allegations in the First Amended Complaint (D.I.
`
`59) (“FAC”) preclude dismissal under Federal Circuit precedent. However, OANDA fails to
`
`address or overcome the numerous Federal Circuit decisions that compel dismissal.
`
`With respect to the merits, OANDA has not adequately rebutted GAIN’s detailed
`
`showing how each claim is abstract and fails to include an inventive concept. Under Alice1 step
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`one, OANDA tries to analogize its claims to ones the Federal Circuit found were not abstract.
`
`Such a comparison fails because, unlike the patent-eligible claims in those cases, OANDA’s
`
`claims viewed as a whole do not improve upon computer technology. Under Alice step two,
`
`OANDA fails to show an inventive concept, since neither the specification nor the claims recite
`
`any non-generic technical components, or any combination thereof, that amount to significantly
`
`more than the abstract ideas themselves. Moreover, the Court may reject OANDA’s attempt to
`
`insulate the asserted patents based on the FAC’s allegations because such allegations are either
`
`conclusory, insufficient as a matter of law, or inconsistent with the intrinsic record.
`
`Because no additional allegations can overcome these deficiencies, judgment on the
`
`pleadings and dismissal with prejudice is appropriate.
`
`II.
`
`PRECEDENT FULLY SUPPORTS DISMISSAL WITH PREJUDICE DESPITE
`OANDA’S PLEADED “FACTS”
`
`Contrary to OANDA’s suggestion, GAIN is not “inviting the Court to commit reversible
`
`error by dismissing the FAC.” Opp’n at 12. Post-Berkheimer2 and Aatrix3 Federal Circuit
`
`
`1 Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208 (2014).
`
`2 Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018).
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`3 Aatrix Software, Inc. v. Green Shades Software, Inc., 882 F.3d 1121 (Fed. Cir. 2018).
`
`
`
`

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`
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`authority re-affirm that subject matter eligibility under § 101 may be determined at the Rule
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`12(c) or 12(b)(6) stage. See Sensormatic Elecs., LLC v. Wyze Labs, Inc., No. 2020-2320, 2021
`
`U.S. App LEXIS 20789 (Fed. Cir. July 14, 2021) (affirming grant of 12(c) motion); Mortg.
`
`Application Techs., LLC v. MeridianLink, Inc., 839 F. App’x 520 (Fed. Cir. 2021) (same);
`
`CardioNet, LLC v. InfoBionic, Inc., 816 F. App’x 471 (Fed. Cir. 2020) (same); Boom! Payments,
`
`Inc. v. Stripe, Inc., 839 F. App’x 528 (Fed. Cir. 2021) (affirming grant of 12(b)(6) motion);
`
`Simio, LLC v. FlexSim Software Prods., Inc., 983 F.3d 1353, 1365, 1367 (Fed. Cir. 2020)
`
`(disregarding conclusory statements and affirming grant of 12(b)(6) motion); ChargePoint, Inc.
`
`v. SemaConnect, Inc., 920 F.3d 759, 765, 774 (Fed. Cir. 2019) (same); cf. Interactive Wearables,
`
`LLC v. Polar Electro Oy, 501 F.Supp.3d 162, 170-71, 184-185 (E.D.N.Y. 2020) (dismissing with
`
`prejudice under Rule 12(b)(6) in light of Berkheimer, Aatrix, and Cellspin4).
`
`The Federal Circuit decisions that OANDA cites—BASCOM5, Berkheimer, Aatrix,
`
`Cellspin, and Berkeley*IEOR6—do not hold to the contrary. For example, Aatrix states that
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`“patent eligibility can be determined at the Rule 12(b)(6) stage” but that “plausible factual
`
`allegations may preclude dismissing a case under § 101 where, for example, nothing on the
`
`record . . . refutes those allegations as a matter of law or justifies dismissal. . .” 882 F.3d at
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`1125 (emphasis added, internal quotations omitted, citation omitted). Further, conclusory
`
`statements may be disregarded when evaluating a complaint. Simio, 983 F.3d at 1365. In
`
`addition, although “eligibility under § 101 is a question of law that can include subsidiary
`
`questions of fact . . . [s]uch factual issues may be resolved on the pleadings ‘based on the sources
`
`properly considered on a motion to dismiss, such as the complaint, the patent, and materials
`
`
`4 Cellspin Soft, Inc. v. Fitbit, Inc., 927 F.3d 1306 (Fed. Cir. 2019).
`
`5 BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016).
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`6 Berkeley*IEOR v. Teradata Operations, Inc., 448 F. Supp. 3d 864 (N.D. Ill. 2020).
`
`2
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`

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`
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`subject to judicial notice.” Cleveland Clinic Found. v. True Health Diagnostics LLC, 760 F.
`
`App’x 1013, 1018 (Fed. Cir. 2019) (quoting Aatrix, 882 F.3d at 1128). As set forth in the
`
`Opening Brief and herein, because OANDA’s allegations in the FAC are conclusory, insufficient
`
`as a matter of law, or inconsistent with the patent specification and the file histories, dismissal is
`
`warranted.
`
`The majority of OANDA’s allegations related to inventiveness are conclusory and thus
`
`should be disregarded. For example, in Boom! Payments, the complaint conclusorily alleged:
`
`The claims include specific limitations and a combination of limitations that are
`inventive and which were not well-understood, routine, conventional activity in
`the field at the time of the inventions.
`
`
`839 F. App’x at 533. Because the complaint only included similar types of conclusory
`
`allegations, the Federal Circuit affirmed dismissal. Id. at 533-34. Similarly, the Federal Circuit
`
`in Simio flatly stated that “[a] statement that a feature ‘improves the functioning and operations
`
`of the computer’ is, by itself, conclusory.” Simio, 983 F.3d at 1365. The court also found that
`
`“the allegations in support of that conclusion just repackage assertions of non-abstractness we’ve
`
`already rejected as a matter of law . . . inherent with applying the abstract idea. . .” Id.
`
`Accordingly, the Federal Circuit concluded that “[t]his is therefore not a case in which a
`
`complaint’s allegations ‘prevent resolving the eligibility question as a matter of law’” and
`
`affirmed dismissal. Id. (quoting Aatrix, 882 F.3d at 1125). Lastly, in ChargePoint, the Federal
`
`Circuit concluded that the multiple concepts alleged by the patentee were not “inventive
`
`concepts” as required under Alice step two because they mirrored the abstract idea articulated in
`
`Alice step one. 970 F.3d at 774. In sum, these cases thus show that allegations of inventiveness
`
`do not automatically protect a complaint from dismissal.
`
`In the Opening Brief, GAIN specifically identified each paragraph that is unsupported by
`
`3
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`

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`
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`underlying factual allegations and provided the reasons why the Court should not accept the
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`allegations as true (Br. at 28-29), contrary to OANDA’s assertions (Opp’n at 16). The
`
`allegations themselves reveal why they are conclusory, and a side-by-side comparison makes it
`
`clear which ones are repetitive (i.e. boilerplate). Indeed, OANDA seemingly concedes that
`
`paragraphs 29 and 49 are boilerplate and conclusory. Opp’n at 15 n. 3 (citing FAC, ¶¶ 29, 49)
`
`(noting that “paragraphs are the same or similar when reciting the standards that must be met to
`
`show an inventive concept”) (emphasis added).
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`Further, the supporting allegations that OANDA cites—FAC paragraphs 32, 33, 34, 37,
`
`38, 52, 55, and 56 (id.)—“just repackage assertions of non-abstractness” that the Federal Circuit
`
`has “already rejected as a matter of law . . . inherent with applying the abstract idea. . . ” (Simio,
`
`983 F.3d at 1365), or provide further conclusory statements. Specifically, paragraphs 32, 33, 347
`
`and 52 of the FAC allege that the claimed inventions or limitations can accomplish things that a
`
`human cannot. But “[u]sing computers to apply commonplace ideas—such as generating price
`
`quotes—is not a patentable invention, even if the computer is able to handle volumes and
`
`complexity at levels impossible for humans.” Money Suite Co. v. 21st Century Ins. & Fin. Servs.,
`
`Inc., No. 13-984-GMS, 2015 WL 436160, at *5 (D. Del. Jan. 27, 2015). Paragraphs 37, 38, and
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`55 of the FAC state, in conclusory fashion, that the claimed limitation “adds the specific
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`technological requirements recited therein, which improve on the prior art systems and
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`methods.” Accordingly, none of these allegations creates a factual dispute that precludes
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`granting GAIN’s motion.
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`Furthermore, because granting leave to amend would be futile, dismissing OANDA’s
`
`
`7 Paragraph 34 does not allege that Claim 11 is an improvement over humans, however, its
`allegation that “by implementing the disclosed trading system, brokers can automatically catch
`traders or accounts who are operating outside their margin limits and automatically liquidate
`their holdings in real time” suggests a comparison of the ability of computers to humans.
`
`4
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`

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`
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`FAC with prejudice is proper. In FairWarning IP8 and ChargePoint, the Federal Circuit
`
`affirmed dismissals with prejudice for patent-ineligibility over similar arguments to those made
`
`by OANDA. FairWarning IP, 839 F.3d at 1097; ChargePoint, 920 F.3d at 774-75. Moreover,
`
`the cases cited by OANDA are distinguishable. In those cases, the patentee put forth plausible
`
`allegations showing the claims improved the functioning of computers. See, e.g., Ubiquitous
`
`Connectivity, LP v. City of San Antonio, No. 18-cv-00718-XR, 2019 U.S. Dist. LEXIS 165197
`
`(W.D. Tex. Sept. 26, 2019) (noting the bidirectional base unit, which was the alleged technical
`
`improvement supporting the allegation of an inventive concept, was evident in the claims
`
`themselves). That is not the case here.
`
`III. OANDA FAILS TO SHOW THAT THE CLAIMS ARE DIRECTED TO A NON-
`ABSTRACT IDEA
`
`For Alice step one, OANDA’s assertion that GAIN characterizes the claims at too high a
`
`level of abstraction, (Opp’n at 17) is unavailing. In contrast to OANDA’s narrow focus on
`
`“individual limitations,” GAIN appropriately characterized the abstract ideas focusing on the
`
`“claim[s] as a whole.” See Br. at 14-18; King Pharm., Inc. v. Eon Labs, Inc., 616 F.3d 1267,
`
`1277 (Fed. Cir. 2010) (“The Supreme Court has stated that a § 101 patentability analysis is
`
`directed to the claim as a whole, not individual limitations.”).
`
`The ’311 Patent
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`With respect to the ’311 Patent, OANDA’s criticism of GAIN’s characterization of the
`
`abstract ideas (Opp’n at 17-18 (citing Br. at 14-15)) is unfounded. Rather than show how
`
`GAIN’s characterizations are inconsistent with the language of the claims, OANDA points to the
`
`specification’s recitation of the three-way handshake and the problems the patent attempts to
`
`solve (id.), as GAIN predicted (Br. at 29). However, whether the “techniques claimed are
`
`
`8 FairWarning IP, LLC v. Iatric Sys., 839 F.3d 1089 (Fed. Cir. 2016).
`
`5
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`

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`
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`‘[g]roundbreaking, innovative, or even brilliant,’ …is not enough for eligibility.” (See Br. at 29
`
`(citing SAP Am. Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018))). OANDA
`
`ignores this recitation of law. Moreover, as the Opening Brief lays out, the allegedly novel two-
`
`way handshake is not a technical solution or an improvement in how a computer performs. Br.
`
`at 29-30. Thus, OANDA’s reliance on Enfish9, which found non-abstract a “self-referential
`
`table” that was “a specific type of data structure designed to improve the way a computer stores
`
`and retrieves data in memory” is misplaced.
`
`OANDA’s reliance on Trading Techs I10 and KPN11 to support its position that the claims
`
`of the ’311 Patent are not abstract (Opp’n at 19) is also misplaced. In Trading Techs I, the
`
`challenged claims were found to “require a specific, structured graphical user interface paired
`
`with a prescribed functionality directly related to the graphical user interface’s structure[.]” 675
`
`F. App’x at 1004. And in KPN, it was “undisputed” that the claims improved the computer’s
`
`functionality. 942 F.3d at 1150-51. By contrast, there is no technological feature nor any
`
`“particular manner” or “structure” in the claims that make them non-abstract. See Br. at 18-19.
`
`The ’336 Patent
`
`With respect to the ’336 Patent, like the ’311 Patent, OANDA again criticizes GAIN’s
`
`characterizations of the abstract idea without showing how they are inconsistent with the
`
`language of the claims and again improperly points to individual limitations to argue non-
`
`abstractness rather than focus on the claims as a whole. See King Pharm., 616 F.3d at 1277.
`
`Moreover, attempting to distinguish Fast 10112 and trying to place its claims within
`
`
`9 Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016).
`
`10 Trading Techs. Int’l, Inc. v. CQG, Inc., 675 F. App’x 1001 (Fed. Cir. 2017).
`
`11 Koninklike KPN NV v. Gemalto M2M GmbH, 942 F.3d 1143 (Fed. Cir. 2019).
`
`12 Fast 101 Pty Ltd. v. CitiGroup Inc., 834 F. App’x 591, 593 (Fed. Cir. 2020).
`
`6
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`

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`
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`Enfish and its progeny, OANDA claims that “the ’336 Patent teaches specific improvements to
`
`computerized currency trading systems,” pointing to the claimed software modules and
`
`components that constitute the claimed system. Opp’n at 22. That the claims recite such
`
`modules or components does not make them any less abstract, especially since they are described
`
`as generic computer components that perform basic computer functions to perform an online
`
`currency trade or are described in terms of the functions that they perform in currency trading.
`
`See Br. at 19. In addition, the claim reviewed in Fast 101 was to a system comprising one or
`
`more bank servers, a database, and a payment gateway—all generic components like the claims
`
`at hand—and thus OANDA’s attempt to distinguish the case based on the claims also fails.
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`Further, OANDA points to features that are not included in the claims to argue that they
`
`are not abstract. For instance, rather than accepting that Claim 11 is directed to the abstract idea
`
`of “online currency trading systems that automate trades based on user and system-defined
`
`parameters, such as ... a margin requirement” (Br. at 17), OANDA argues that “[s]uch a system
`
`does not merely ‘automate trades’; instead, it improves upon prior art online currency trading
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`platforms by managing the margin requirements of a user’s account to protect against downside
`
`risk for the system operator.” Opp’n at 23-24. However, that the claims may have a real-world
`
`benefit, such as protecting against downside risk, does not alter their abstractness. See Fitbit Inc.
`
`v. AliphCom, No. 16-cv-00118-BLF, 2017 WL 819235, at *10 (N.D. Cal. Mar. 2, 2017) (noting
`
`that many patent-ineligible claims such as those in Alice and Gottschalk v. Benson, 409 U.S. 63
`
`(1972) “likely provided benefits to the [financial or computer] world”).
`
`IV. OANDA FAILS TO SHOW AN INVENTIVE CONCEPT
`
`For Alice step two, OANDA again attempts to insulate the asserted patents from attack by
`
`citing to BASCOM, Aatrix, Cellspin, and Berkeley*IEOR. Opp’n at 24-25. As discussed above,
`
`7
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`

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`none of these decisions preclude dismissal.
`
`At the outset, it is important to remember that providing benefits over the prior art does
`
`not by itself provide a sufficient inventive concept or confer patent-eligible subject matter. See
`
`Diamond v. Diehr, 450 U.S. 175, 188-89 (1981) (“The ‘novelty’ of any element or steps in a
`
`process, or even of the process itself, is of no relevance in determining whether the subject
`
`matter of a claim falls within the § 101 categories of possibly patentable subject matter”). After
`
`all, an “inventive concept” is simply “an element or combination of elements that is sufficient to
`
`ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible
`
`concept] itself.” Alice, 573 U.S. at 217-18 (citation omitted).
`
`1.
`
`The Court Need Not Accept OANDA’s Conclusory and Boilerplate
`Allegations
`
`OANDA points to conclusory and boilerplate language in the FAC to argue that each
`
`asserted patent has a sufficient inventive concept. The court need not accept these allegations as
`
`true. Simio, 983 F.3d at 1365 (“We disregard conclusory statements when evaluating a
`
`complaint under Rule 12(b)(6).”); see also Ipa Techs, Inc. v. Amazon.com, Inc., 352 F. Supp. 3d
`
`335, 349 (D. Del. 2019) (finding that “majority of Plaintiffs new . . . allegations d[id] not alter
`
`the Alice Step Two analysis” because the court was “not required to treat boilerplate allegations
`
`that the claims are directed to new computer functionality and improvements to technological
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`processes as true where those allegations contradict the language of the claims and
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`specification.”). For example, OANDA states:
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`As the FAC explains, [e]ach of the claims of the ’336 Patent is inventive over the
`prior art . . . . Specifically, the claims are non-abstract and embody an inventive
`concept at least because their claimed elements, combinations of elements, and the
`interactions between those elements was not well-understood, routine, and
`conventional at the time of the application.
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`Opp’n at 7 (citing FAC, ¶ 29). As discussed above, this statement is conclusory and not a
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`plausible factual allegation that must be accepted.
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`2.
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`OANDA’s Alleged Inventive Concepts Are Not Technical
`Improvements but Implementations of the Abstract Ideas
`
`OANDA’s alleged inventive concepts are also insufficient because they fail “to ensure
`
`that the patent in practice amounts to significantly more than a patent upon the [ineligible
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`concept] itself.” Alice, 573 U.S. at 217-18 (citation omitted). OANDA argues that, unlike the
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`cases cited by GAIN “where courts have found the mere addition of conventional computer
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`components to well-known business practices unpatentable, the inventions of the ’311 Patent do
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`not provide merely for trading currency using a computer and the Internet.” Opp’n at 20. This
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`statement does not accurately reflect the law. “[T]he inquiry is not whether conventional
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`computers already apply, for example, well-known business concepts like hedging or
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`intermediated settlement” but “whether ‘each step does no more than require a generic computer
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`to perform generic computer functions.’” Intellectual Ventures I LLC v. Symantec Corp., 838
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`F.3d 1307, 1318-19 (Fed. Cir. 2016) (emphasis and citation omitted).
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`Moreover, while an unconventional combination of conventional components may
`
`provide an inventive concept, there is no unconventional combination of conventional
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`components in the instant claims. Nonetheless, OANDA argues that “the claims [of each patent]
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`are non-abstract and embody an inventive concept [in that] their claimed elements, combinations
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`of elements, and the interactions between those elements was not well-understood, routine, and
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`conventional.” Opp’n at 4 (citing FAC, ¶ 49) and 7 (citing FAC, ¶ 29). However, this is a
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`conclusory statement that should be disregarded. Indeed, OANDA cannot provide any specific
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`allegations regarding conventional computer components being combined or required to perform
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`in a non-conventional way that would not contradict the claims, the specification, or the priority
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`’174 Provisional Application. See Br. at 24. In fact, like in ChargePoint, “the only possible
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`inventive concept in the [] asserted claims is the abstract idea itself.” 920 F.3d at 775.
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`With respect to the ’311 Patent, OANDA argues that steps (i) and (ii) requiring that the
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`trading system server dynamically maintain current exchange rates and transmit them directly to
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`the trader’s system is an inventive concept. Opp’n at 25. However, dynamically maintaining
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`current exchange rates and transmitting them are insufficient to confer patent-eligibility. For
`
`example, in FairWarning IP the Federal Circuit found the ability of a “system and method to
`
`collect and analyze disparate data sources in real time” was an insufficient inventive concept.
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`839 F.3d at 1097-98. Moreover, even if the claims did require real-time maintenance and
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`transmission of exchange rates, real-time processing does not alter that, at their core, steps (i) and
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`(ii) merely involve “sending and receiving information.” See Br. at 20. Further, OANDA’s
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`suggestion that the combination of steps in Claim 1 is an inventive concept (Opp’n at 26)
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`similarly fails, since implementing the steps adds nothing over the abstract idea.
`
`With respect to the ’336 Patent, OANDA incorrectly asserts that GAIN “improperly
`
`oversimplifie[d] the inventions” in not addressing their described functionality. See Opp’n at 27.
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`To the contrary, GAIN addressed the specification’s description of the base elements in terms of
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`their stated platform and their functionality. See Br. at 24 (noting that the “transaction server, the
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`rate server, and the pricing engine” “run[] exclusively on Unix platforms” and that “[t]he
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`specification alternatively describes each in terms of its functionality in trading”).
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`In addition, OANDA’s argument “that computer-based inventions are patentable, even if
`
`they use so-called ‘generic’ components” is insufficient. Opp’n at 27 (citing BASCOM, 827 F.3d
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`at 1352). BASCOM recognized that an “abstract-idea-based solution implemented with generic
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`technical components in a conventional way” could not confer patentability. 827 F.3d at 1351.
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`This is the case here. The specification describes each of the alleged components that OANDA
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`claims provide an inventive concept as either conventional or by their expected functionality.
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`Moreover, as the descriptions in the patent’s specification contradict OANDA’s allegations that
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`these components are unconventional, the Court need not accept them as true. See Secured Mail
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`Sols., LLC v. Universal Wilde, Inc., 873 F.3d 905, 913 (Fed. Cir. 2017) (stating that the Court
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`“need not accept as true allegations that contradict … the patent specification”) (internal
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`quotations and citation omitted).
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`Furthermore, the claimed additional elements, such as the interest rate manager’s ability
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`to “calculate, pay out, and collect interest on a tick-by-tick basis” or the computerized trade
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`manager’s ability to track and execute varied and complex stored orders in real time (Opp’n at
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`27-28), do not confer an inventive concept. The specification and the ’174 Provisional
`
`Application acknowledge that such functionality was known to those skilled in the art or could
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`be done using known formulas or methods. See Br. at 25-26 (listing instances in the
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`specification). As OANDA fails to show how its allegations do not contradict these statements,
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`the Court need not accept them as true. See Secured Mail, 873 F.3d at 913.
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`OANDA’s remaining arguments that the additional elements in Claims 2-5, 7, and 11
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`(e.g. software modules, hedging engine, and margin control manager) in the ’336 Patent provide
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`an inventive concept also fail. Opp’n at 28-29. To support its argument, OANDA quotes its
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`own conclusory allegation in the FAC (id. (citing FAC, ¶ 39)), which the Court should disregard.
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`Simio, 983 F.3d at 1365. Indeed, OANDA’s argument itself is conclusory. Opp’n at 29 (stating
`
`that “each of the claims ‘offer[s] individualized technological improvements and differing
`
`inventive concepts’ and that ‘it was not well understood, routine, and conventional at the time of
`
`the application to trade currencies over a computer network using a trading client system. . . at
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`least because of the deficiencies of the prior art systems described in the specification and in the
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`prosecution history’” (citing FAC, ¶ 39).)
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`V.
`
`CONCLUSION
`
`Because OANDA failed to allege sufficient “inventive concepts” to transform the
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`abstract ideas of the asserted claims into patent-eligible subject matter, this Court should find
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`that the asserted patents are invalid and dismiss OANDA’s Complaint with prejudice.
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`
`
`Dated: August 9, 2021
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`
`
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`
`
`Respectfully submitted,
`
`
`Michael B. Levin (mlevin@wsgr.com)
`WILSON SONSINI GOODRICH &
`ROSATI
`650 Page Mill Road
`Palo Alto, CA 94304-1050
`Telephone: (650) 493-9300
`
`
`Natalie J. Morgan (nmorgan@wsgr.com)
`WILSON SONSINI GOODRICH