Covered Business Method Review
`CBM2012-00005
`
`U.S. Patent No. 6,675,151
`System and Method for Performing
`Substitute Fulfillment Information
`Compilation And Notification
`
`Oral Hearing: August 13, 2013, 10 a.m.
`
`CRS EXHIBIT 1022
`CRS v. FRONTLINE, CBM 2012-00005
`
`
`CBM2012-00005
`
`U.S. Patent No. 6,675,151
`System and Method for Performing
`Substitute Fulfillment Information
`Compilation And Notification
`
`Oral Hearing: August 13, 2013, 10 a.m.
`
`CRS EXHIBIT 1022
`CRS v. FRONTLINE, CBM 2012-00005
`
`
`
`Patent Owner Did Not Invent
`Automated Substitute Fulfillment:
`
`• “Substitute fulfillment is a routine practice in
`the education system ....” CX1001, 2:62-63.
`
`• “At present computer systems for supporting
`substitute fulfillment are known in the
`education field.” CX1001, 3:36-37.
`
`
`2
`
`
`
`Patent Describes No
`Advance In Computing
`
`• Specification only discloses a generic
`communications and process server 30 (CX 1001,
`7:3-4), a generic organization computer 54 (CX
`1001, 7:47-48), the worker’s generic home based
`computer 20 (CX 1001, 10:33), and the substitute’s
`generic home based computer 24 (CX1001, Fig. 1)
`
`• Specification only generally discloses the generic
`concepts of a “website,” a “communication link,”
`and an “Internet communication link.”
`
`3
`
`
`
`No Special Hardware Or
`Programming Is Required
`
`• By “specially” programmed, Frontline’s expert
`admitted he merely meant “specifically or deliberately
`or consciously.” CX1013 at 8:21-22; see also CX1013 at
`9:12-16, 14:18-21, and 37:11-21.
`
`• Frontline’s expert conceded that the claims did not
`require using any particular programming approach
`and that they were not limited to any particular type of
`computers. CX1013 at 12:19 – 13:7, 34-17-19.
`
`
`4
`
`
`
`No Special Hardware Or
`Programming Is Required
`• Frontline’s expert conceded that he did not know the
`details of any special programming and configuration
`required for the computers to interface with the
`communication links from the language of the claims.
`CX1013 at 40:3-11.
`
`• Frontline’s expert conceded that the claims were not
`limited to a particular kind of communication link.
`CX1013 at 41:14-22.
`
`• Frontline’s expert conceded that there were different
`ways in which computers could be programmed to
`communicate with a communication link. Id.
`
`
`5
`
`
`
`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 substitutes 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 [by] 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
`[sic: 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.
`
`•
`
`•
`
`•
`
`•
`
`•
`
`
`
`Abstract Idea in Claim 3 to use
`generic hardware and software
`to accomplish the goal of
`substitute fulfillment
`
`Receiving Absentee Information
`
`Generating and Posting Vacancy
`
`Receiving Acceptance of Position
`
`Securing Position
`
`6
`
`
`
`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 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
`substitutes 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 [by] 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.
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`
`
`Database
`
`One or more computers
`comprising a server
`
`7
`
`
`
`No Special Database Required
`
`• By “specially formatted” database, Frontline’s expert
`meant that it was “consciously and deliberately”
`formatted. CX1013 at 33:20 to 34:4.
`• Claim 6 places no limitations on how data is formatted or
`stored in the claimed database. Frontline’s expert
`conceded that the claim did not spell out the details of
`the worker or substitute records. CX1013 at 19:21 to
`20:21.
`• Frontline’s expert was unable to identify anything in
`claim 6 that specified the information associated with
`the workers, or what information associated with
`substitutes had to be other than the position a given
`substitute eventually accepts. CX1013 at 24:21 to 26:18.
`
`8
`
`
`
`No Special Database Required
`
`• While the preferred embodiment discloses an
`“OracleTM server, or like database engine 34,” CX1001
`at 7:4-5, this is a conventional database and does not
`limit the scope of the claims.
`
`• Similarly, the disclosed data record fields illustrated in
`Figures 3-11 are not required by the claims, and the
`content of the data does not place meaningful
`limitations on the manner in which the recited
`database is structured or formatted for the storage or
`retrieval of such data.
`
`9
`
`
`
`Supreme Court 101 Framework
`
`• Patent may be obtained for a new and useful
`process, machine, manufacture, or
`composition of matter. 35 USC § 101.
`• Excluded from patent protection are “laws of
`nature, natural phenomena, and abstract
`ideas.” Mayo, 132 S. Ct. at 1293; Diehr, 450
`US at 185.
`
`10
`
`
`
`Supreme Court 101 Framework
`• When an abstract idea is involved, ask: “What else is there
`in the claims before us?” Mayo, 132 S. Ct. at 1297.
`– “[M]ust do more than simply state the [abstract idea] while
`adding the words ‘apply it.’” Mayo, 132 S. Ct. at 1294; Benson,
`409 US at 71-72.
`– Claims must “also contain other elements or a combination of
`elements . . . sufficient to ensure that the patent in practice
`amounts to significantly more” than the abstract idea itself.
`Mayo, 132 S. Ct. at 1294; Flook, 437 US at 594.
`– Improper to “depend simply on the draftsman’s art.” Mayo, 132
`S. Ct. at 1294; Flook, 437 US at 593.
`– Limiting claims to field of use or adding token post-solution
`activity does not make an abstract concept patentable. Bilski,
`130 S. Ct. at 3231; Diehr, 450 US at 191-92.
`
`
`11
`
`
`
`Supreme Court:
`Unpatentable Abstract Idea
`
`Gottschalk v. Benson
`• Abstract idea: converting BCD numbers
`to binary. 409 US at 71.
`• 7-step process could be “done
`mentally” using a table printed in the
`patent. Id. at 66, 73-74.
`• Process with “no substantial practical
`application except in connection with a
`digital computer” was still
`unpatentable abstract idea. Id. at 71-
`72.
`• The prohibition on patenting abstract
`ideas applies equally to “product” and
`“process” claims. Id. at 67-68.
`
`
`
`409 US at 73-74.
`
`12
`
`
`
`Supreme Court:
`Unpatentable Abstract Idea
`Parker v. Flook
`• Abstract idea: method for calculating
`alarm limit values. 437 US at 594-95.
`• Unpatentable even though “abstract
`of disclosure makes it clear that the
`formula is primarily useful for
`computerized calculations . . . .” Id. at
`586.
`Process can be performed “by pencil
`and paper.” Id.
`Even if claim does not “wholly
`preempt” an abstract idea, “post-
`solution activity” cannot transform an
`unpatentable principle into a
`patentable process. Id. at 589-90.
`
`•
`
`•
`
`437 US at 596-97.
`
`13
`
`
`
`Supreme Court:
`Unpatentable Abstract Idea
`Bilski v. Kappos
`• Abstract idea: basic concept of
`hedging. 130 S. Ct. at 3231.
`• While the Patent Act “appears to
`leave open the possibility of some
`business method patents, it does
`not suggest broad patentability of
`such claimed inventions.” Id. at
`3229.
`Limiting claims to field of use or
`adding token postsolution activity
`does not make an abstract
`concept patentable. Id. at 3231.
`
`•
`
`130 S. Ct. at 3223-24.
`
`14
`
`
`
`Supreme Court:
`Unpatentable Law of Nature
`Mayo v. Prometheus
`•
`Law of nature: relationships between
`concentrations of metabolites and
`likelihood of ineffectiveness or harm.
`132 S. Ct. at 1296-98.
`Claims add only “well-understood,
`routine, conventional activity”
`insufficient to transform unpatentable
`law of nature into patentable
`application. Id. at 1298.
`Claim not patentable unless “process
`has additional features that provide
`practical assurance that the process is
`more than a drafting effort” to claim
`fundamental principle. Id. at 1297.
`
`
`•
`
`•
`
`132 S. Ct. at 1295.
`
`15
`
`
`
`•
`
`Supreme Court:
`Patentable Industrial Process
`Diamond v. Diehr
`• Abstract idea: Arrhenius
`equation. 450 US at 177-78.
`Excluded from patent
`protection are “laws of nature,
`natural phenomena, and
`abstract ideas.” Id. at 185.
`To analyze patentability under §
`101, “claims must be
`considered as a whole” and not
`dissected “into old and new
`elements.” Id. at 188.
`Claims are not “an attempt to
`patent a mathematical
`formula” but rather drawn to
`“an industrial process for the
`molding of rubber products.”
`Id. at 192-93.
`
`•
`
`•
`
`450 US at 180-81.
`
`16
`
`
`
`Fed Cir: Unpatentable Abstract Idea
`
`CLS Bank Int’l v. Alice Corp. Pty . Ltd., 717 F.3d 1269 (en banc)
`
`• Abstract idea: reducing settlement risk by effecting
`trades through a third-party intermediary.
`• Case did not alter Federal Circuit precedent.
`• A majority affirmed the district court’s holding that
`the method and computer-readable media claims
`were invalid and the court’s deadlock affirmed the
`invalidity of the system claims under section 101.
`• Eight judges held that the particular method,
`medium, and system claims at issue should rise and
`fall together.
`
`17
`
`
`
`Fed Cir: Unpatentable Abstract Idea
`
`Ultramercial, Inc. v. Hulu, LLC
`• Alleged abstract idea: using advertising as an exchange or
`currency. 2013 WL 3111303 at *14.
`• This panel decision cannot be read to overrule prior
`Supreme Court and Federal Circuit precedent.
`• Case merely stands for the proposition that it was legal
`error for the district court to dismiss during the pleading
`stage for failure to state a claim on the facts of the case
`before it.
`• Reaffirms that “the mere reference to a general purpose
`computer will not save a method claim from being
`deemed too abstract to be patent eligible.” Id. at *13.
`
`18
`
`
`
`Fed Cir: Unpatentable Abstract Idea
`
`Ultramercial, Inc. v. Hulu, LLC
`• “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 ...” 2013 WL 3111303 at *13.
`• Court “does not define the level of programming
`complexity required before a computer-implemented
`method can be patent-eligible.” Id. at *16.
`• Court does not hold “that use of an Internet website to
`practice such a method is either necessary or sufficient in
`every case to satisfy § 101.” Id.
`
`19
`
`
`
`Fed Cir: Unpatentable Abstract Idea
`Bancorp Servs. v. Sun Life
`• Abstract idea: managing a stable value protected life
`insurance policy and using well-known calculations
`to establish inputs into the equation. 687 F.3d at
`1278.
`• No technological advance is claimed because “the
`computer simply performs more efficiently what
`could otherwise be accomplished manually.” Id. at
`1279.
`The equivalence of system and method claims is
`“readily apparent” because “[t]he only difference
`between the claims is the form in which they were
`drafted.” Id. at 1277.
`“Each independent method claim is further limited
`in a dependent claim requiring that the method be
`‘performed by a computer.’ Id. Claims 17, 37, 60.
`Independent claims 18 and 63 are directed to a
`‘computer readable medi[um] for controlling a
`computer to perform the steps” set out in the meth-
`od claims. Claim 18 for example, recites the same
`20
`seven steps set forth in method claim 9, above.”
`
`687 F.3d at 1271-72.
`
`•
`
`•
`
`
`
`Fed Cir: Unpatentable Abstract Idea
`CyberSource v. Retail Decisions
`• Abstract idea: detecting credit card fraud using
`information relating credit card transactions to
`Internet addresses. 654 F.3d at 1368.
`Even if some steps “are required to obtain
`information from the database” such “data-
`gathering steps cannot alone confer patentability.”
`Id. at 1372.
`“Merely claiming a software implementation of a
`purely mental process that could otherwise be
`performed without the use of a computer” does not
`satisfy 101. Id. at 1375.
`• While claim 2 contains somewhat redundant
`language, it is clear from the emphasized text that
`claim 2 recites nothing more than a computer
`readable medium containing program instructions
`for executing the method of claim 3. Id. at 1374.
`
`•
`
`•
`
`654 F.3d at 1368.
`
`654 F.3d at 1374.
`
`21
`
`
`
`Fed Cir: Unpatentable Abstract Idea
`Dealertrack v. Huber
`• Abstract idea: the basic concept of
`processing information through a
`clearinghouse. 674 F.3d at 1333.
`The claimed steps do not “impose
`meaningful limitations on the claim’s
`scope.” Id.
`“Simply adding a ‘computer aided’
`limitation to a claim covering an abstract
`concept, without more, is insufficient to
`render the claim patent eligible.” Id.
`• Algorithms that may be disclosed in the
`specification do not change the outcome
`because “[i]n considering patent eligibility
`under § 101, one must focus on the claims.”
`Id. at 1334.
`
`•
`
`•
`
`674 F.3d at 1331.
`
`22
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 6th day of August, 2013, a true and correct copy
`
`of the foregoing PETITIONER CRS ADVANCED TECHNOLOGIES, INC.’S
`
`DEMONSTRATIVE EXHIBITS were served via electronic mail upon the follow-
`
`ing counsel of record for Patent Owner Frontline Technologies, Inc.:
`
`John P. Donohue, Jr., Lead Counsel
`Woodcock Washburn, LLP
`Cira Centre – 12th Floor
`2929 Arch Street
`Philadelphia, PA 19103
`Phone: 215.568.3100
`Fax: 215.568.3439
`Email: donohue@woodcock.com
`
`John E. McGlynn, Back-up Counsel
`Woodcock Washburn, LLP
`Cira Centre – 12th Floor
`2929 Arch Street
`Philadelphia, PA 19104
`Phone: 215.564.8382
`Fax: 215.568.3439
`Email: mcglynn@woodcock.com
`
`R. Scott Tewes
`Tewes Law Group LLC
`Sugarloaf Corporate Center
`2180 Satellite Blvd., Suite 400
`Duluth, GA 30097
`Email: STewes@TewesLaw.com
`
`
`
`/s/ Darrel C. Karl
`Darrel C. Karl
`Finnegan, Henderson, Farabow,
` Garrett & Dunner, L.L.P.
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