UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`CRS ADVANCED TECHNOLOGIES, INC.
`Petitioner
`v.
`Patent of FRONTLINE TECHNOLOGIES, INC.
`Patent Owner
`
`Case CBM2012-00005
`Patent 6,675,151
`
`PATENT OWNER FONTLINE PLACEMENT TECHNOLOGY, INC.’S
`DEMONSTRATIVE EXHIBITS 1-94
`FOR AUGUST 13, 2013 ORAL HEARING
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`CRS ADVANCED TECHNOLOGIES, INC.
`Petitioner
`v.
`Patent of FRONTLINE TECHNOLOGIES, INC.
`Patent Owner
`
`Case CBM2012-00005
`Patent 6,675,151
`
`PATENT OWNER FONTLINE PLACEMENT TECHNOLOGY, INC.’S
`DEMONSTRATIVE EXHIBITS 1-94
`FOR AUGUST 13, 2013 ORAL HEARING
`
`
`
`General Principles of Law Regarding
`Subject Matter Eligibility
`
`FRONTLINE DX - 1
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`The Most Recent Law on §101 Eligibility
`
`•
`
`•
`
`Issued June 21, 2013 – after parties’ briefing in this matter.
`
`Judges Rader, Moore, and Lourie all found the claims to be
`directed to patentable subject matter.
`
`• Rader authored CLS dissent.
`
`•
`
`Lourie authored CLS plurality opinion.
`
`• Claimed computer implemented invention with many
`similarities to claims of the ’151 patent.
`
`FRONTLINE DX - 2
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`The Most Recent Law on §101 Eligibility
`
`35 U.S.C. §101 sets forth the categories of
`subject matter that are eligible for patent
`protection: “[w]hoever invents or discovers any
`new and useful process, machine, manufacture,
`or composition of matter, or any new and useful
`improvement thereof, may obtain a patent
`therefor, subject to the conditions and
`requirements of this title.”
`
`35 U.S.C. §101.
`
`[T]he Supreme Court emphasized that “[i]n
`choosing such expansive terms modified by the
`comprehensive ‘any,’ Congress plainly
`contemplated that the patent laws would be
`given wide scope.”
`Ultramercial, Inc. v. Hulu, LLC 2013 U.S. App. LEXIS 12715, *10
`(Fed. Cir. June 21, 2013) (internal citations omitted).
`
`FRONTLINE DX - 3
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`The Most Recent Law on §101 Eligibility
`
`In line with the broadly permissive nature of
`§101’s subject matter eligibility principles and
`the structure of the Patent Act, case law has
`recognized only three narrow categories of
`subject matter outside the eligibility bounds of
`§101—laws of nature, physical phenomena,
`and abstract ideas. The Court’s motivation
`for recognizing exceptions to this broad
`statutory grant was its desire to prevent the
`“monopolization” of the “basic tools of scientific
`and technological work,” which “might tend to
`impede innovation more than it would tend to
`promote it.”
`
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *13-14
`(internal citations omitted).
`
`FRONTLINE DX - 4
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`The Most Recent Law on §101 Eligibility
`
`As the Supreme Court has made clear, too
`broad an interpretation of these exclusions from
`the grant in §101 “could eviscerate patent law.”
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *14
`(quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
`132 S. Ct. 1289, 1293 (U.S. 2012)).
`
`To sum up, because eligibility requires assessing
`judicially recognized exceptions against a broad
`and deliberately expanded statutory grant, one
`of the principles that must guide our inquiry is
`these exceptions should apply narrowly.
`
`Id. at *15.
`
`FRONTLINE DX - 5
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`The Most Recent Law on §101 Eligibility
`
`[A] claim is not patent eligible only if, instead of
`claiming an application of an abstract idea, the
`claim is instead to the abstract idea itself.
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *20.
`
`The inquiry here is to determine on which side
`of the line the claim falls: does the claim cover
`only an abstract idea, or instead does the claim
`cover an application of an abstract idea?
`
`Id.
`
`In determining on which side of the line the
`claim falls, the court must focus on the claim as
`a whole.
`
`Id.
`
`FRONTLINE DX - 6
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`The Most Recent Law on §101 Eligibility
`
`It is inappropriate to dissect the claims into old
`and new elements and then to ignore the
`presence of the old elements in the analysis.
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *21
`(citing Diamond v. Diehr, 450 U.S. 175, 188 (U.S. 1981)).
`
`This is particularly true in a process claim
`because a new combination of steps in a
`process may be patentable even though all the
`constituents of the combination were well
`known and in common use before the
`combination was made.
`
`Id.
`
`FRONTLINE DX - 7
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`The Most Recent Law on §101 Eligibility
`
`The relevant inquiry is whether a claim, as a
`whole, includes meaningful limitations
`restricting it to an application, rather than
`merely an abstract idea.
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *22.
`
`A claim may be premised on an abstract idea
`and, indeed, the abstract idea may be of central
`importance to the invention – the question for
`patent eligibility is whether the claim contains
`limitations that meaningfully tie that abstract
`idea to an actual application of that idea
`through meaningful limitations.
`
`Id. at 23.
`
`FRONTLINE DX - 8
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`The Most Recent Law on §101 Eligibility
`
`Any claim can be stripped down, simplified,
`generalized, or paraphrased to remove all of its
`concrete limitations, until at its core, something
`that could be characterized as an abstract idea
`is revealed.
`
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *22.
`
`A court cannot go hunting for abstractions by
`ignoring the concrete, palpable, tangible
`limitations of the invention the patentee
`actually claims.
`
`Id.
`
`FRONTLINE DX - 9
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`The Most Recent Law on §101 Eligibility
`
`A claim is not meaningfully limited if it
`merely describes an abstract idea or simply
`adds “apply it.”
`
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *21
`(citing Prometheus., 132 S. Ct. at 1293).
`
`Pre-emption is only a subject matter eligibility
`problem when a claim pre-empts all practical
`uses of an abstract idea.
`
`Id. at *27.
`
`It is not the breadth or narrowness of the
`abstract idea that is relevant, but whether the
`claim covers every practical application of that
`abstract idea.
`
`Id. at *28.
`
`FRONTLINE DX - 10
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`The Most Recent Law on §101 Eligibility
`
`A claim is meaningfully limited if it requires a
`particular machine implementing a process or a
`particular transformation of matter.
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *30.
`
`In those instances, the added limitations do
`more than recite pre- or post-solution activity,
`they are central to the solution itself.
`
`Id. at *31.
`
`And, in such circumstances, the abstract idea is
`not wholly pre-empted; it is only pre-empted
`when practiced in conjunction with the other
`necessary elements of the claimed invention.
`
`Id.
`
`FRONTLINE DX - 11
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`The Most Recent Law on §101 Eligibility
`
`The Supreme Court repeatedly has cautioned
`against conflating the analysis of the conditions
`of patentability in the Patent Act with inquiries
`into patent eligibility.
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *32.
`
`FRONTLINE DX - 12
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`The Most Recent Law on §101 Eligibility
`
`Judge Lourie Concurrence
`
`The plurality opinion in CLS Bank identified a
`two-step process, derived from Mayo, for
`analyzing patent eligibility under §101. First, a
`court must identify “whether the claimed
`invention fits within one of the four statutory
`classes set out in §101.” Second, one must
`assess whether any of the judicial exceptions to
`subject-matter eligibility apply, including
`whether the claims are to patent-ineligible
`abstract ideas.
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *47-48
`(citing CLS Bank Int'l v. Alice Corp. Pty,
`717 F.3d 1269, *32-33 (Fed. Cir. 2013)).
`
`FRONTLINE DX - 13
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`The Most Recent Law on §101 Eligibility
`
`Judge Lourie Concurrence
`
`In the case of abstractness, as discussed in
`CLS Bank, we must determine whether the
`claim poses “any risk of preempting an abstract
`idea.” To do so we must first “identify and
`define whatever fundamental concept appears
`wrapped up in the claim” ... Then, proceeding
`with the preemption analysis, the balance of
`the claim is evaluated to determine whether
`“additional substantive limitations ... narrow,
`confine, or otherwise tie down the claim so
`that, in practical terms, it does not cover the full
`abstract idea itself.”
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *48
`(internal citations omitted).
`
`FRONTLINE DX - 14
`
`
`
`§101 Eligibility Process
`
`Step 1: The statute controls the inquiry into patentable subject matter.
`35 U.S.C. §101 sets forth the categories of subject matter that are eligible
`for patent protection: “[w]hoever invents or discovers any new and
`useful process, machine, manufacture, or composition of matter, or any
`new and useful improvement thereof, may obtain a patent therefor,
`subject to the conditions and requirements of this title.”
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *10 (quoting 35 U.S.C. §101).
`
`Step 2:
`
`In line with the broadly permissive nature of §101’s subject matter
`eligibility principles and the structure of the Patent Act, case law has
`recognized only three narrow categories of subject matter outside the
`eligibility bounds of §101 – laws of nature, physical phenomena, and
`abstract ideas.
`
`Id. at 13-14.
`
`FRONTLINE DX - 15
`
`
`
`Step 1:
`Determine Statutory Category
`
`FRONTLINE DX - 16
`
`
`
`Claim 3 of the ’151 Patent = Process
`
` 3. A method for performing substitute fulfillment for a
`plurality of different organizations comprising:
`receiving absentee information representing an absent
`worker that will be or is physically absent from an
`organization worksite via at least one communication link;
`generating and posting by one or more computers a list of
`one or more positions of one or more absent workers that
`need to be filled by one or more substitute workers on a
`website and providing, for one or more of the positions,
`information indicating directly or indirectly an organization
`worksite location for the respective position;
`receiving a response comprising an acceptance, by the one
`or more computers, from a substitute worker selecting a
`posted position on the website via an Internet
`communication link; and
`securing in response to receiving the acceptance form the
`substitute worker, via the Internet communication link and
`the one or more computers, the posted position for the
`substitute worker who selected the posted position to fill
`in for the absent worker, the securing comprising halting,
`at the one or more computers, further processing to fulfill
`the posted position with any other substitute worker.
`Ex Parte Reexam Cert. No. 7116 (U.S. Patent No. 6,675,151),
`Ex. 1002 at Claim 3.
`
`FRONTLINE DX - 17
`
`
`
`Claims 16, 24 and 33 of the ’151 Patent = Process
`
`16. The method of claim 3,
`wherein the receiving an acceptance by a substitute worker
`comprises receiving electronically the acceptance by the
`substitute worker from the website on which the list of one
`or more positions was posted; and wherein the securing
`step comprises generating by the one or more computers
`information that the position was secured to the substitute
`worker and sending or posting this information via the
`Internet communication link to the substitute worker.
`Ex. 1002 at Claim 16.
`
` 24. The method of claim 3, wherein the information provided
`comprises information on a start time for an absence
`of the absent worker.
`
`Id. at Claim 24.
`
` 33. The method of claim 3,
`wherein the receiving step, by computer, comprises receiving
`an acceptance from one of the substitute workers by a
`web communication link.
`
`Id. at Claim 33.
`
`FRONTLINE DX - 18
`
`
`
`Claim 6 of the ’151 Patent = Machine
`
` 6. A substitute fulfillment system that secures one or more substitute
`workers for a plurality of organizations comprising:
`a database comprising worker records, said worker records having
`information associated with workers for each of the organizations,
`and substitute records, said substitute records having information
`associated with at least one substitute worker; and
`one or more computers comprising a server connected to the
`database, the server configured for:
`receiving absentee information representing an absent worker that
`will be or is physically absent from an 65 organization worksite via at
`least one communication link;
`generating and posting a list of one or more positions of one or more
`absent workers that need to be filled by one or more substitute
`workers on a website and providing, for one or more of the positions,
`information indicating 5 directly or indirectly an organization
`worksite location for the respective position;
`receiving a response comprising an acceptance from a substitute
`worker selecting a posted position on the website via an Internet
`communication link; and
`securing, in response to receiving the acceptance from the substitute
`worker, via the Internet communication link and the one or more
`computers, the posted position for the substitute worker who
`selected the posted position to fill in for the absent worker, the
`securing comprising halting, at the one or more computers, further
`processing to fulfill the posted position with any other substitute
`worker.
`
`Ex. 1002 at Claim 6.
`
`FRONTLINE DX - 19
`
`
`
`Claim 7 of the ’151 Patent = Machine
`
` 7. The substitute fulfillment system of claim 6 wherein the
`server is further configured to generate a list of substitute
`workers and absent workers who the substitute workers will
`be filling in for a given organization and to transmit the
`generated list of substitute workers and names of the absent
`workers who the substitute workers will be filling in for to the
`given organization via the at least one communication link.
`U.S. Patent No. 6, 675,151, Ex. 1001, Claim 7.
`
`FRONTLINE DX - 20
`
`
`
`Step 2:
`Determine Whether
`Judicial Exception Applies
`
`FRONTLINE DX - 21
`
`
`
`Determine Whether Exception to
`Patent Eligibility Applies
`
`• When assessing the abstract idea exception, the §101 inquiry
`is a two-step one:
`
`Step A: first, whether the claim involves an intangible abstract idea;
`
`Step B: and if so, whether meaningful limitations in the claim make it
`clear that the claim is not to the abstract idea itself, but to a
`non-routine and specific application of that idea.
`
`Ultramercial, Inc. v. Hulu, LLC 2013 U.S. App. LEXIS 12715 at *38, n.2.
`
`FRONTLINE DX - 22
`
`
`
`Step A:
`Does the Claim Involve an
`Intangible Abstract Idea?
`
`FRONTLINE DX - 23
`
`
`
`’151 Patent Claims Do Not
`Involve an Intangible Abstract Idea
`
`• For a claim to be invalid for claiming an abstract idea, the
`abstractness “should exhibit itself so manifestly as to override
`the broad statutory categories of eligible subject matter and
`the statutory context that directs primary attention on the
`patentability criteria of the rest of the Patent Act.
`
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *46
`(citing Research Corp. Techs. v. Microsoft Corp., 627 F.3d 859, 869 (Fed. Cir. 2010)).
`
`• Neither independent claim 3 or independent claim 6 exhibit
`abstractness so manifestly to override statutory categories.
`
`• “[I]t is arguable that we are not even dealing with an
`intangible abstraction in the first instance; the claims relate to
`things that people do, not to mere mental steps.”
`
`Id. at *38-39, n.2.
`
`FRONTLINE DX - 24
`
`
`
`The Claims Do Not Relate to Mere Mental Steps
`
`• Claim 3 is directed to a method comprising a specific set of
`interactive operations performed by specially programmed
`computing hardware.
`
`• Claim 6 is directed to a system comprising computing
`hardware that is specially formatted and programmed to
`perform a specific set of interactive operations.
`
`• The claims relate to real things that perform real operations,
`not to mere mental steps.
`
`FRONTLINE DX - 25
`
`
`
`CRS Has Alleged the Claims Involve an Abstract Idea
`
`Frontline disagrees that the claims involve an abstract idea.
`•
`• However, for purposes of discussion, we will pursue the analysis and will
`use the alleged abstract idea identified by CRS – automated substitute
`fulfillment.
`
`…an abstract idea – automated
`substitute fulfillment….
`
`Paper No. 48, p. 1.
`
`FRONTLINE DX - 26
`
`
`
`Step B:
`Is the Claim Meaningfully
`Limited to Less Than the Abstract Idea?
`
`FRONTLINE DX - 27
`
`
`
`Meaningful Limitations = Patent Eligible
`
`[T]he relevant inquiry is whether a claim, as a whole, includes
`meaningful limitations restricting it to an application, rather than
`merely an abstract idea.
`
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *22
`(citing Prometheus, 132 S. Ct. at 1297).
`
`FRONTLINE DX - 28
`
`
`
`’151 Patent – Background
`
`The ’151 patent discloses “[a] system and
`method for automating the performance of
`substitute fulfillment to assign a replacement
`worker to substitute for a worker during a
`temporary absence…”
`
`Ex. 1001 at Abstract.
`
`FRONTLINE DX - 29
`
`
`
`’151 Patent – Background
`
`• At present, computer systems for supporting substitute fulfillment are
`known in the education field. Individual schools in a school district
`typically share a single such system installed at the school district level.
`Typical system equipment includes at least one dedicated computer,
`combined with specialized telephony equipment, including multiple phone
`lines, and other equipment. The equipment is expensive and set-up of the
`substitute fulfillment system may be technically demanding. A school
`district must invest in equipment adequate to handle its anticipated
`volume of use. In order to upgrade the system, often all of the equipment
`must be replaced, at substantial expense and annoyance. Such systems
`are sold by several vendors under the trade names SubFinder (CRS, Inc.),
`and Substitute Teacher Management System (TSSI).
`
`Ex. 1001 at col. 3, ll. 36-50 (emphasis added).
`
`FRONTLINE DX - 30
`
`
`
`’151 Patent – Background
`
`Ex. 1001 at References Cited.
`
`FRONTLINE DX - 31
`
`
`
`’151 Patent – Disclosed System
`
`FRONTLINE DX - 32
`
`Ex. 1001 at Fig. 1.
`
`
`
`’151 Patent – Claim Construction
`
`• The claim terms should be understood to have their
`ordinary meaning.
`
`See Paper No. 36 at pp. 13-19.
`
`• Frontline provides those ordinary meanings as derived
`from dictionary definitions in its Response.
`
`• CRS’s proposed constructions add extraneous limitations.
`
`FRONTLINE DX - 33
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`Application of §101 Eligibility Law
`
`This inquiry focuses on whether the claims tie
`the otherwise abstract idea to a specific way of
`doing something with a computer, or a specific
`computer for doing something; if so, they likely
`will be patent eligible.
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *34.
`
`
`When assessing computer implemented
`claims … the fact that a claim is limited by a tie
`to a computer is an important indication of
`patent eligibility. This tie to a machine moves it
`farther away from a claim to the abstract idea
`itself. Moreover, that same tie makes it less
`likely that the claims will pre-empt all practical
`applications of the idea.
`
`Id. (internal citation omitted)
`
`FRONTLINE DX - 34
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`Application of §101 Eligibility Law
`
`On the other hand, claims directed to nothing
`more than the idea of doing that thing on a
`computer are likely to face larger problems.
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *34.
`
`While no particular type of limitation is
`necessary, meaningful limitations may
`include the computer being part of the solution,
`being integral to the performance of the
`method, or containing an improvement in
`computer technology.
`
`Id. at *34-35.
`
`FRONTLINE DX - 35
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`Application of §101 Eligibility Law
`
`At bottom, with a claim tied to a computer in a
`specific way, such that the computer plays a
`meaningful role in the performance of the
`claimed invention, it is as a matter of fact not
`likely to pre-empt virtually all uses of an
`underlying abstract idea, leaving the invention
`patent eligible.
`
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *36.
`
`FRONTLINE DX - 36
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`Application of §101 Eligibility Law
`
`Specifically, the ’545 patent claims a particular
`internet and computer-based method for monetizing
`copyrighted products, consisting of the following
`steps: (1) receiving media products from a copyright
`holder, (2) selecting an advertisement to be
`associated with each media product, (3) providing said
`media products for sale on an Internet website, (4)
`restricting general public access to the media
`products, (5) offering free access to said media
`products on the condition that the consumer view the
`advertising, (6) receiving a request from a consumer
`to view the advertising, (7) facilitating the display of
`advertising and any required interaction with the
`advertising, (8) allowing the consumer access to the
`associated media product after such display and
`interaction, if any, (9) recording this transaction in an
`activity log, and (10) receiving payment from the
`advertiser.
`
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *39-40.
`
`FRONTLINE DX - 37
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`Application of §101 Eligibility Law
`
`Even at this general level, it wrenches meaning
`from the word to label the claimed invention
`“abstract.” The claim does not cover the use of
`advertising as currency disassociated with any
`specific application of that activity.
`It was error for the district court to strip away
`these limitations and instead imagine some
`“core” of the invention.
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *40.
`
`FRONTLINE DX - 38
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`Application of §101 Eligibility Law
`
`[I]t is clear that several steps plainly require that
`the method be performed through computers,
`on the internet, and in a cyber-market
`environment. One clear example is the third
`step, “providing said media products for sale on
`an Internet website.” And, of course, if the
`products are offered for sale on the Internet,
`they must be “restricted” – step four – by
`complex computer programming as well.
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *40-41.
`
`FRONTLINE DX - 39
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`Application of §101 Eligibility Law
`
`In addition, Figure 1, alone, demonstrates that the claim
`is not to some disembodied abstract idea but is instead a
`specific application of a method implemented by several
`computer systems, operating in tandem, over a
`communications network:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *41.
`
`FRONTLINE DX - 40
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`Application of §101 Eligibility Law
`
`Almost all of the steps in this process, as explained in the
`flow chart of Figure 2, are tied to computer
`implementation:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *41.
`
`FRONTLINE DX - 41
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`Application of §101 Eligibility Law
`
`Viewing the subject matter as a whole, the
`invention involves an extensive computer
`interface. …[T]he claims are not made without
`regard to a particular process. Likewise, it does
`not say “sell advertising using a computer,” and
`so there is no risk of preempting all forms of
`advertising, let alone advertising on the
`Internet. Further, the record at this stage shows
`no evidence that the recited steps are all token
`pre- or post-solution steps. Finally, the claim
`appears far from over generalized, with
`eleven separate and specific steps with many
`limitations and sub-steps in each category.
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *41-42.
`
`FRONTLINE DX - 42
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`Application of §101 Eligibility Law
`
`In other words, a programmed computer
`contains circuitry unique to that computer. That
`“new machine” could be claimed in terms of a
`complex array of hardware circuits, or more
`efficiently, in terms of the programming that
`facilitates a unique function. With the digital
`computer, considered by some the greatest
`invention of the twentieth century, as a vital
`invention, both this court and the Patent Office
`have long acknowledged that “improvements
`thereof” through interchangeable software or
`hardware enhancements deserve patent
`protection. Far from abstract, advances in
`computer technology – both hardware and
`software – drive innovation in every area of
`scientific and technical endeavor.
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *43-44 (emphasis added).
`
`FRONTLINE DX - 43
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`Application of §101 Eligibility Law
`
`The court also notes that the claims in this case
`are not highly generalized. Instead, the ten
`specific steps in the claim limit any abstract
`concept within the scope of the invention.
`Further, common sense alone establishes that
`these steps are not inherent in the idea of
`monetizing advertising. There are myriad ways
`to accomplish that abstract concept that do not
`infringe these claims.
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *44.
`
`FRONTLINE DX - 44
`
`
`
`Ultramercial, Inc. v. Hulu, LLC
`Application of §101 Eligibility Law
`
`In sum, as a practical application of the
`general concept of advertising as currency and
`an improvement to prior art technology, the
`claimed invention is not “so manifestly abstract
`as to override the statutory language of
`section 101.”
`
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *46.
`
`FRONTLINE DX - 45
`
`
`
`Following Reasoning of Ultramercial,
`The ’151 Patent Claims Are Patent Eligible
`Claim 3 of the ’151 Patent Imposes Meaningful Limits
`On the Abstract Idea of Automated Substitute Fulfillment
`
`In Ultramercial
`
`In the ’151 Patent
`
`“This court does not need the record of a formal
`claim construction to see that many of these steps
`require intricate and complex computer
`programming.”
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *40 (emphasis added).
`A method for distribution of products over the
`Internet via a facilitator, said method comprising
`the steps of:
`(1) receiving media products from a copyright
`holder,
`(2) selecting an advertisement to be associated
`with each media product,
`(3) providing said media products for sale on
`an Internet website,
`restricting general public access to the
`media products,
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *39-40
`(emphasis added).
`
`(4)
`
`Like the claim in Ultramercial, the method recited
`in claim 3 of the ’151 patent requires intricate and
`complex computer programming.
`
`
`
` 3. A method for performing substitute fulfillment
`for a plurality of different organizations comprising:
`receiving absentee information representing an
`absent worker that will be or is physically absent
`from an organization worksite via at least one
`communication link;
`generating and posting by one or more
`computers a list of one or more positions of one
`or more absent workers that need to be filled by
`one or more substitute workers on a website
`and providing, for one or more of the positions,
`information indicating directly or indirectly an
`organization worksite location for the respective
`position;
`
`FRONTLINE DX - 46
`
`
`
`Following Reasoning of Ultramercial,
`The ’151 Patent Claims Are Patent Eligible
`Claim 3 of the ’151 Patent Imposes Meaningful Limits
`On the Abstract Idea of Automated Substitute Fulfillment (Cont’d.)
`
`In Ultramercial
`
`In the ’151 Patent
`
`(5) offering free access to said media products
`on the condition that the consumer view
`the advertising,
`(6) receiving a request from a consumer to
`view the advertising,
`(7) facilitating the display of advertising and
`any required interaction with the
`advertising,
`(8) allowing the consumer access to the
`associated media product after such display
`and interaction, if any,
`(9) recording this transaction in an activity log,
`and
`(10) receiving payment from the advertiser.
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *40.
`
`receiving a response comprising an acceptance,
`by the one or more computers, from a
`substitute worker selecting a posted position on
`the website via an Internet communication link;
`and
`
`securing in response to receiving the acceptance
`form the substitute worker, via the Internet
`communication link and the one or more
`computers, the posted position for the
`substitute worker who selected the posted
`position to fill in for the absent worker, the
`securing comprising halting, at the one or more
`computers, further processing to fulfill the
`posted position with any other substitute
`worker.
`
`FRONTLINE DX - 47
`
`
`
`Following Reasoning of Ultramercial,
`The ’151 Patent Claims Are Patent Eligible
`Claim 6 of the ’151 Patent Imposes Meaningful Limits
`On the Abstract Idea of Automated Substitute Fulfillment
`
`In Ultramercial
`
`In the ’151 Patent
`
`“This court does not need the record of a formal
`claim construction to see that many of these steps
`require intricate and complex computer
`programming.”
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *40 (emphasis added).
`A method for distribution of products over the
`Internet via a facilitator, said method comprising
`the steps of:
`(1) receiving media products from a copyright
`holder,
`(2) selecting an advertisement to be associated
`with each media product,
`(3) providing said media products for sale on
`an Internet website,
`restricting general public access to the
`media products,
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *39-40
`(emphasis added).
`
`(4)
`
`Like the claim in Ultramercial, the system recited in claim 6
`of the ’151 patent “require[s] intricate and complex
`computer programming.”
`
`
`
`
`
`6. A substitute fulfillment system that secures one or more
`substitute workers for a plurality of organizations
`comprising:
`
`a database comprising worker records, said worker
`records having information associated with workers for
`each of the organizations, and substitute records, said
`substitute records having information associated with
`at least one substitute worker; and
`
`one or more computers comprising a server connected to
`the database, the server configured for:
`
`receiving absentee information representing an absent
`worker that will be or is physically absent from an 65
`organization worksite via at least one communication
`link;
`
`FRONTLINE DX - 48
`
`
`
`Following Reasoning of Ultramercial,
`The ’151 Patent Claims Are Patent Eligible
`Claim 6 of the ’151 Patent Imposes Meaningful Limits
`On the Abstract Idea of Automated Substitute Fulfillment (Cont’d.)
`
`In Ultramercial
`
`In the ’151 Patent
`
`(5) offering free access to said media products
`on the condition that the consumer view
`the advertising,
`(6) receiving a request from a consumer to
`view the advertising,
`(7) facilitating the display of advertising and
`any required interaction with the
`advertising,
`(8) allowing the consumer access to the
`associated media product after such display
`and interaction, if any,
`(9) recording this transaction in an activity log,
`and
`(10) receiving payment from the advertiser.
`Ultramercial, 2013 U.S. App. LEXIS 12715 at *40.
`
`generating and posting a list of one or more positions of
`one or more absent workers that need to be filled by
`one or more substitute workers on a website and
`providing, for one or more of the positions, information
`indicating 5 directly or indirectly an organization
`worksite location for the respective position;
`
`receiving a response comprising an acceptance from a
`substitute worker selecting a posted position on the
`website via an Internet communication link; and
`
`securing, in response to receiving the acceptance from the
`substitute worker, via the Internet communication link
`and the one or more computers, the posted position for
`the substitute worker who selected the posted position
`to fill in for the absent worker, the securing comprising
`halting, at the one or more computers, further
`processing to fulfill the posted position with any other
`substitute worker.
`
`FRONTLINE DX - 49
`
`
`
`Following Reasoning of Ultramercial,
`The ’151 Patent Claims Are Patent Eligible
`Similar to the Reasoning in Ultramercial,
`It Would Be Error to Strip Away the Recited Structure
`
`In Ultramercial
`
`In the ’151 Patent
`
`Even at this general level, it wrenches
`meaning from the word to label the claimed
`invention “abstract.” The claim does not
`cover the use of advertising as currency
`disassociated with any specific application of
`that activity. It was error for the district court
`to strip away these limitations and instead
`imagine some “core” of the invention.
`
`Ultramercial, 2013 U.S. App. LEXI
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