Case 6:16-cv-00095-RWS Document 7 Filed 05/24/16 Page 1 of 18 PageID #: 42
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`P&RO SOLUTIONS, GROUP, INC.,
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`Plaintiff,
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`v.
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`CIM MAINTENANCE INC.,
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`Defendant.
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`Civil Action No. 6:16-cv-95
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`DEFENDANT CIM MAINTENANCE INC.’S MOTION TO DISMISS
`PURSUANT TO FED. R. CIV. P. 12(B)(6) AND 35 U.S.C. § 101
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`CiM Ex. 1012 Page 1
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`Case 6:16-cv-00095-RWS Document 7 Filed 05/24/16 Page 2 of 18 PageID #: 43
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`I.
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`TABLE OF CONTENTS
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`INTRODUCTION .........................................................................................................1
`II. LEGAL BACKGROUND ...........................................................................................1
`A. Fed. R. Civ. P. 12(b)(6) ........................................................................................... 1
`B. Patentable Subject Matter ....................................................................................... 2
`III. ARGUMENT ...............................................................................................................5
`A. Claim Construction is Not Necessary to find the ’205 Unpatentable ..................... 5
`B. The ’205 Patent is Unpatentable Under 35 U.S.C. § 101 ....................................... 6
`1. The Claims of the ’205 Patent Are Directed To An Abstract Idea ...................... 6
`2. The Claims of the ’205 Patent Do Not Contain an Inventive Concept ................ 9
`IV. CONCLUSION ..........................................................................................................14
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`CiM Ex. 1012 Page 2
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`Case 6:16-cv-00095-RWS Document 7 Filed 05/24/16 Page 3 of 18 PageID #: 44
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`INTRODUCTION
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`In this patent infringement action, Plaintiff P&RO (“P&RO”) asserts claims 1-20
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`I.
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`
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`of U.S. Pat. No. 8,209,205 (the “’205 Patent”) in its Complaint against Defendant CiM
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`Maintenance Inc. (“CiM”). The ’205 Patent purports to disclose an invention involving
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`“Planning and Scheduling Tool Assistant.” Claim 1 is the only independent claim of this
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`patent. A plain reading of these claims in light of the specification illustrates that they are
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`directed to applying conventional practices in scheduling and planning using generic
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`computer limitations. The invention outlined in the ’205 Patent does not purport to create
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`or improve any aspect of computers or software; rather, it simply recites the simple
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`concept of scheduling work orders on a week-to-week basis and managing those work
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`orders using conventional scheduling practices. Patent law precludes the enforcement of a
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`patent that seeks to monopolize such a basic idea.
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`
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`Patent claims that cover abstract ideas without any inventive concept are not
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`eligible for patenting under 35 U.S.C. § 101. As discussed in more detail below, the
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`claims of the ’205 Patent are patent-ineligible for covering the abstract idea of scheduling
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`and managing work orders using generic computer technology. Because the claims of the
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`’205 Patent are directed toward patent-ineligible abstract concepts, the patent is invalid
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`and cannot be infringed. Therefore, CiM moves to dismiss P&RO’s complaint.
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`LEGAL BACKGROUND
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`A.
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`Fed. R. Civ. P. 12(b)(6)
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`A court should dismiss a plaintiff’s complaint where the complaint fails to
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`II.
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`
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`“provide . . . factual allegations that when assumed to be true ‘raise a right to relief above
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`the speculative level.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting
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`1
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`CiM Ex. 1012 Page 3
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`Case 6:16-cv-00095-RWS Document 7 Filed 05/24/16 Page 4 of 18 PageID #: 45
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`Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The determination of whether the
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`pleadings have facial plausibility is a “context-specific task that requires the reviewing
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`court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S.
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`662, 679 (2009). “A claim has facial plausibility when the pleaded factual content allows
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`the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Id. at 678.
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`
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`“[O]nly valid patents can be infringed.” Commil USA, LLC v. Cisco Systems, Inc.,
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`575 U.S. __, 135 S.Ct. 1920, 1929 (2015) (Scalia, J., dissenting in part). As a matter of
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`law, patent claims covering abstract ideas are invalid as ineligible under 35 U.S.C. § 101.
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`Alice Corp. Pty Ltd. v. CLS Bank Intern., 573 U.S. __, 134 S.Ct. 2347, 2352 (2014).
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`Therefore, “[w]hen patent claims on their face are plainly directed to an abstract idea, it is
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`proper to make a determination of patent validity under § 101 at the pleading stage.”
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`Landmark Technology, LLC v. Assurant, Inc., No. 6:15-CV-76-RWS-JDL, 2015 WL
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`4388311 at *2) (E.D. Tex. Jul. 14, 2015) (citing Federal Circuit precedent sanctioning
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`dismissals of patent claims at the pleading stage); see also Affinity Labs of Texas, LLC v.
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`Amazon.com, Inc., No. 6:15–CV–0029–WSS–JCM, 2015 WL 3757497 at *4 (E.D. Tex.
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`June 12, 2015) (same). If, as in the case at bar, asserted claims are patent-ineligible, then
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`the pleadings cannot support a claim upon which relief can be granted, and the case must
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`be dismissed under Fed. R. Civ. P. 12(b)(6).
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`B.
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`Patentable Subject Matter
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`Under 35 U.S.C. § 101, “any new and useful process, machine, manufacture, or
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`
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`composition of matter” may be eligible for patenting. Although the scope of patentable
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`subject matter is broad, this provision “contains an implicit exception for laws of nature,
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`2
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`CiM Ex. 1012 Page 4
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`

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`Case 6:16-cv-00095-RWS Document 7 Filed 05/24/16 Page 5 of 18 PageID #: 46
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`natural phenomena, and abstract ideas.” Alice Corp. Pty. v. CLS Bank International, 573
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`U.S. __, 134 S. Ct. 2347 (2014), (quoting Ass’n for Molecular Pathology v. Myriad
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`Genetics, Inc., 569 U.S. __, 133 S.Ct. 2107, 2116, (2013)) (internal quotations and
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`brackets omitted) (emphasis added). This important exception prevents preemption of the
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`future use of the “building blocks of human ingenuity” and reserves the generous
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`privilege of monopoly to those inventions that “integrate the building blocks into
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`something more.” Id. Whether a patented claim is patent-eligible under 35 U.S.C. § 101
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`is a question of law that may turn on subsidiary factual considerations in some cases. In
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`re Comiskey, 554 F.3d 967, 975 (Fed. Cir. 2009).
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`
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`The Supreme Court has outlined a two-part test for determining whether a patent
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`is invalid for covering patent-ineligible subject matter: (1) determine whether the claim is
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`directed to a law of nature, natural phenomena, or an abstract idea; and (2) if so,
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`determine whether the claim possesses “an element or combination of elements that is
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`‘sufficient to ensure that the [claim] in practice amounts to significantly more than a
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`patent upon the [ineligible concept] itself.’” Alice, 134 S. Ct. at 2355 (quoting Mayo
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`Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. __, 132 S. Ct. 1289, 1294))
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`(some brackets in original).
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`
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`To determine whether a claim is directed to an “abstract idea,” a court must
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`examine the claim to determine whether it recites “an idea, having no particular concrete
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`or tangible form.” Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014);
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`see also Alice, 134 S. Ct. at 2355 (“The ‘abstract ideas’ category embodies the
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`longstanding rule that [a]n idea of itself is not patentable.”) (internal citations and
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`quotations omitted). Patent-ineligible abstract ideas include mathematical equations and
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`3
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`CiM Ex. 1012 Page 5
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`Case 6:16-cv-00095-RWS Document 7 Filed 05/24/16 Page 6 of 18 PageID #: 47
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`algorithms, “fundamental economic practices,” and conventional business practices. See,
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`e.g., Gottschalk v. Benson, 409 U.S. 63, 69 (1972) (converting binary-coded decimal
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`numerals into pure binary numerals); Parker v. Flook, 437 U.S. 584, 594 (1978)
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`(adjusting alarm limits in catalytic conversion); Alice, 134 S. Ct. at 2356 (risk hedging);
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`Ultramercial, 772 F.3d at 715 (advertising as exchange or currency); In re Smith, 815
`
`F.3d 816, 819–20 (Fed. Cir. 2016) (method of conducting a wagering game); OIP
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`Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (method of
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`price optimization). The Federal Circuit has recently clarified the first step of the Alice
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`test by noting that “a relevant inquiry at step one is ‘to ask whether the claims are
`
`directed to an improvement to computer functionality versus being directed to an abstract
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`idea.’” TLI Commc’ns. LLC v. AV Auto., LLC, No. 2015-1372, 2016 WL 2865693, at *3
`
`(Fed. Cir. May 17, 2016) (quoting Enfish, LLC v. Microsoft Corp., No. 2015-2044, slip
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`op. at *11 (Fed. Cir. May 12, 2016)).
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`
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`If the claims are generally directed to a patent-ineligible concept, the court must
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`then consider the elements of the challenged claims, “both individually and ‘as an
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`ordered combination’ to determine whether any additional elements ‘transform the nature
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`of the claim’ into a patent-eligible application.” Alice, 134 S. Ct. at 2355 (quoting Mayo,
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`132 S.Ct. at 1297–98 (2012)). A patent only passes this second step if the court is able to
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`find an “inventive concept —i.e., an element or combination of elements that is sufficient
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`to ensure that the patent in practice amounts to significantly more than a patent upon the
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`ineligible concept itself.” Id. (quoting Mayo, 132 S.Ct., at 1294) (internal quotations and
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`brackets omitted).
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`4
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`CiM Ex. 1012 Page 6
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`

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`
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`A court applying the second step of the Alice-Mayo test should take care not to
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`interpret § 101 “in ways that make patent eligibility depend simply on the draftsman’s
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`art.” Id. at 2360 (quoting Mayo, 132 S.Ct. at 1294) (internal quotations omitted). For
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`example, claims “limiting an abstract idea to one field of use or adding token postsolution
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`components d[o] not make the concept patentable.” Bilski v. Kappos, 561 U.S. 593, 612
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`(2010). Additionally, a claim that merely describes an abstract idea while simply adding
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`“apply it” using conventional technological tools does not sufficiently transform the
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`patent-ineligible concept to render the patent valid. Ultramercial, 772 F.3d at 715. For
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`example, the presence of “a general purpose computer to facilitate operations through
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`uninventive steps does not change the fundamental character of an invention.” Versata
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`Development Group, Inc. v. SAP America, Inc., 793 F.3d 1306, 1327 (Fed. Cir. 2015).
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`Additionally, limitations “requiring conventional computer activities or routine data-
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`gathering steps” also do not transform otherwise abstract claims into patent-eligible
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`claims. OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015).
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`Rather, the application of the ineligible concept must constitute “significantly more” than
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`the inventive concept itself. Alice, 134 S.Ct. at 2360 (emphasis added).
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`III. ARGUMENT
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`
`A.
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`Claim Construction is Not Necessary to find the ’205 Unpatentable
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`
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`While ordinarily desirable, “claim construction is not an inviolable prerequisite to
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`a validity determination under § 101.” Bancorp Servs., L.L.C. v. Sun Life Assurance Co.
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`of Can., 687 F.3d 1266, 1273 (Fed. Cir. 2012); see also, Alice, 134 S. Ct. 2347
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`(dismissing claims as invalid under 35 U.S.C. § 101 without claim construction); Bilski,
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`561 U.S. 593 (same). For example, courts have found it appropriate to assess patent
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`5
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`CiM Ex. 1012 Page 7
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`eligibility at the pleadings stage in cases where neither party has identified any disputes
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`related to claim construction,1 where the court determines that the claims go to abstract
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`ideas even when construed in a light most favorable to the patentee,2 or where claims are
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`plainly directed to a patent-ineligible abstract idea.3
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`In the case at bar, the Court does need not perform claim construction to assess
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`the validity of the claims of the ’205 patent because the claim language, read in light of
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`the specification, is straightforward, and it can be plainly seen on the face of the patent
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`that it is directed to the abstract idea of scheduling (particularly in the industrial context)
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`using generic computers over generic computer networks.
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`B.
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`The ’205 Patent is Unpatentable Under 35 U.S.C. § 101
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`The claims of the ’205 patent are directed to no more than a scheduling system.
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`
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`The claims only require the performance of conventional scheduling practices using
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`generic computers. Nothing in the claim limitations, considered individually or as a
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`whole, require anything other than generic computers for implementing this abstract idea
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`on a generic computer and over a generic computer network.
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`1.
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`The Claims of the ’205 Patent Are Directed To An Abstract Idea
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`The claims of the ’205 Patent are directed to the abstract idea of scheduling
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`
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`business activities using a computer and computer network. The sole independent claim
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`of the patent, claim 1, is representative. Claim 1 recites,
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`1 See, e.g., Affinity Labs of Texas v. DirecTV, LLC, 109 F.Supp.3d 916, 922 (E.D. Tex.
`2015); Affinity Labs of Texas v. Amazon.Com, 2015 WL 3757497 at *4.
`2 See, e.g., Landmark Technology, 2015 WL 4388311 at *3 (citing Content Extraction &
`Transmission LLC v. Wells Fargo Bank, 776 F.3d 1343, 1349 (Fed. Cir. 2014)).
`3 See, e.g., OIP Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1364-65 (Fed.
`Cir. 2015).
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`6
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`CiM Ex. 1012 Page 8
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`Case 6:16-cv-00095-RWS Document 7 Filed 05/24/16 Page 9 of 18 PageID #: 50
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`A planning and scheduling system running on a computing device, the
`system comprising:
`a user interface; and
`a computing device in communication with said user interface, said
`computing device being programmed to implement:
`work week sections;
`a scheduled job section;
`an unscheduled job section;
`a short notice outage section;
`a planned outage section; and
`work orders, wherein the work orders can be moved from
`one work week section to another work week section, from
`unscheduled to scheduled, to short notice outage, to
`planned outage, and to backlog, by dragging and dropping
`the work orders using said user interface.
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`See ‘205 Patent (Dkt. 1 at Ex. A) at claim 1.
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`
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`Claim 1 is directed to nothing more than a computerized scheduling system. The
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`limitations of claim 1, taken individually or in combination, recite conventional means of
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`scheduling, particularly in the industrial business context. The ’205 Patent broadly claims
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`a user interface providing a weekly schedule that uses work orders and allows users to
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`distinguish between (a) scheduled and unscheduled work, as well as work in backlog
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`and/or (b) work for planned and short-notice outages. However, characterizing work
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`orders in this way was already common in the industrial scheduling world. Indeed, the
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`applicants of the ’205 Patent recognized that they were not the first to develop computer
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`programs and user interfaces for scheduling. See ’205 Patent (Dkt. 1 at Ex. A) at Col.
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`1:21-34 (recognizing that “most, if not all, industrial sites” manage work orders using a
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`CMMS).
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`Further, it was conventional to perform similar scheduling practices described in
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`the ’205 Patent using papers and a physical filing system. The fact that the general
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`scheduling activities of claim 1 could be performed using pen and paper indicates that it
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`7
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`CiM Ex. 1012 Page 9
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`

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`Case 6:16-cv-00095-RWS Document 7 Filed 05/24/16 Page 10 of 18 PageID #: 51
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`is directed to an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d
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`1366, 1372-73 (Fed. Cir. 2011) (a method that “can be performed in the human mind, or
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`by a human using a pen and paper . . . is merely an abstract idea[.]”); see also Clear with
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`Computers, LLC v. Dick’s Sporting Goods, Inc., 21 F. Supp. 3d 758 (E.D. Tex. 2014);
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`Clear with Computer, LLC v. Clear with Computers, LLC v. Altec Industries, Inc., No.
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`6:14-cv-79, 2015 WL 993392 (E.D. Tex. Mar. 3, 2015). Courts have found similar
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`concepts to those claimed by the ’205 Patent to be abstract. See, e.g., DietGoal
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`Innovations LLC v. Bravo Media LLC, 33 F. Supp. 2d 271 (S.D.N.Y. 2014) (patent
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`directed to computerized system for meal planning was abstract); OpenTV, Inc. v. Netflix
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`Inc., 76 F. Supp. 3d 886 (N.D. Cal. 2014) (patent directed to scheduling online content
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`delivery based on user preferences was abstract); Planet Bingo, LLC v. VKGS LLC, 576
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`Fed. App’x 1005 (Fed. Cir. 2014) (patent directed to managing and implementing a game
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`of bingo over the computer was abstract); Clear with Computers, LLC v. Dick’s Sporting
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`Goods, Inc., 21 F. Supp. 3d 758 (E.D. Tex. 2014) (patent directed to inventory-based
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`selling was abstract); Clear with Computer, LLC v. Clear with Computers, LLC v. Altec
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`Industries, Inc., No. 6:14-cv-79, 2015 WL 993392 (E.D. Tex. Mar. 3, 2015) (patent to
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`creating a customized sales proposal for a customer was abstract).
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`
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`Moreover, claim 1 is not directed to an improvement to computer functionality.
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`Rather, claim 1 is merely “directed to the use of conventional or generic technology in a
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`nascent but well-known environment, without any claim that the invention reflects an
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`inventive solution to any problem presented by combining the two.” TLI Commc’ns.
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`LLC v. AV Auto., LLC, No. 2015-1372, 2016 WL 2865693, at *3 (Fed. Cir. May 17,
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`2016). As with the patent at issue in TLI, the Specification of the ’205 Patent makes no
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`8
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`CiM Ex. 1012 Page 10
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`mention of needing to improve the functionality of a computer. Instead, the applicant
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`notes that the prior art scheduling methods were “tedious and cumbersome” and that
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`scheduling needed to be “extremely easy to use and require little time to manipulate,” but
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`recites no improvements to the computer system for solving these problems. In other
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`words, “the [computing device] itself is merely a conduit for the abstract idea of
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`[scheduling business activities],” and accordingly, the claims at issue are directed to
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`nothing more than an abstract idea. Id. at *4 (noting that where the specification does not
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`describe a new telephone, a new server, or a new physical combination of the two, the
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`technology merely acts as a conduit for the abstract idea of classifying an image and
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`storing the image based on its classification).
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`None of the dependent claims alters this analysis.4 The dependent claims merely
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`recite slight variations of the scheduling system of independent claim 1 or are directed
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`toward additional, conventional ways of administering a scheduling system using generic
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`computers. Therefore, all of the claims of the ’205 Patent are directed to an abstract
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`concept.
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`2.
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`The Claims of the ’205 Patent Do Not Contain an Inventive
`Concept
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`None of the limitations of claim 1, either individually or in combination, are
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`
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`sufficient to transform the abstract concept into something patentable. The limitation
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`reciting a user interface does not add an inventive concept to the abstract idea of
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`scheduling business activities. See, e.g., Intellectual Ventures I LLC v. Capital One Fin.
`
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`4 CiM reserves its right to raise issues relating to the eligibility of any of the dependent
`claims in response to any specific issues raised by P&RO in its response to this Motion.
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`9
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`CiM Ex. 1012 Page 11
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`Case 6:16-cv-00095-RWS Document 7 Filed 05/24/16 Page 12 of 18 PageID #: 53
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`Corp, __F.Supp.3d__, 2015 WL 5165442 at *9 (D. Md. Sep. 2, 2015) (citing cases)
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`(recitation of user interface does not make abstract claim patent-eligible).
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`
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`Claim 1’s limitation reciting a computing device also does not add an inventive
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`concept. A reading of the specification reveals that the computing device if claim 1 may
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`be a generic computer, such as one that runs a Windows operating system. See ’205
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`Patent (Dkt. 1, at Ex. A) at Col. 2:48-51 (“Typically, although not necessarily, the user
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`will run PaSTA on a networked computer, likely one running Windows, and will use
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`PaSTA as a front end to a CMMS database on a remote server”). Therefore, this
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`limitation also does not add an inventive concept to claim 1. See Landmark Tech., LLC v.
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`Assurant, Inc., No. 6:15–CV–76–RWS–JDL, 2015 WL 4388311 at *5 (E.D. Tex. July
`
`14, 2015) (citing Alice, 134 S. Ct. at 2358 (2014)) (“[T]he recitation of generic computer
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`limitations does not make an otherwise ineligible claim patent-eligible.”); see also TLI
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`Commc’ns. LLC v. AV Auto., LLC, No. 2015-1372, 2016 WL 2865693, at *5 (Fed. Cir.
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`May 17, 2016) (noting that a telephone unit or server performing basic computer
`
`functions or performing functions ‘known” in the art, are not sufficient to transform an
`
`abstract idea).
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`
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`Claim 1 also recites limitations directed to a weekly scheduling program that uses
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`work orders and allows users to distinguish between scheduled and unscheduled work
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`sections, as well as work on a backlog, and work involving planned and short-notice
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`outages section. As discussed above, because such features, individually and in
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`combination, have long been practiced in the world of industrial work scheduling, they
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`would have been expected in a computer scheduling program and, therefore, do not add
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`any inventive concepts to claim 1. See, e.g., Kroy IP Holdings, LLC v. Safeway, Inc., 107
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`10
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`CiM Ex. 1012 Page 12
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`Case 6:16-cv-00095-RWS Document 7 Filed 05/24/16 Page 13 of 18 PageID #: 54
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`F.Supp.3d 677, 698 (E.D. Tex. 2015) (limitations that recite “routine or conventional
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`activities that would be expected to be associated with a computer-based incentive award
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`program” do not add an inventive concept to an otherwise abstract claim). Because claim
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`1 simply recites using generic computer components and features to implement the
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`abstract concept of scheduling and planning using conventional methods, it is
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`unpatentable under § 101.
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`
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`Claim 1 also recites moving work orders between the different sections of the
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`computer program by dragging and dropping work orders between different sections.
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`However, the ability to re-characterize a work order, such as moving it between different
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`file folders or changing its status, is another conventional characteristic of scheduling and
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`planning. For example, if a planner realizes that parts will not be ready in time for
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`scheduled maintenance, it may have to be carried over or rescheduled to another day or
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`week. Therefore, the limitation reciting moving work orders between different sections of
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`the user interface using preexisting computer functions also does not add an inventive
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`concept to claim 1.
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`
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`The inventors of the ’205 Patent allegedly were trying to solve the problem of
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`inefficient tasking due to the alleged “manual typing” requirements and “various
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`navigation schemes” of existing scheduling programs. ’205 Patent (Dkt. 1 at Ex. A) at
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`Col 1:36-41. Therefore, assuming arguendo that the drag-and-drop functionality was the
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`applicant’s way of solving the problem of inefficient scheduling, such functionality is a
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`generic computer operation that can be accomplished through routine and conventional
`
`programming and is therefore not sufficient to add an inventive concept to claim. See
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`Loyalty Conversion Sys. Corp. v. Am. Airlines, Inc., 66 F. Supp. 3d 829, 838 (E.D. Tex.
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`11
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`CiM Ex. 1012 Page 13
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`Case 6:16-cv-00095-RWS Document 7 Filed 05/24/16 Page 14 of 18 PageID #: 55
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`2014) (stating that limitations that perform functions that “can be readily performed by a
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`generic computer with conventional programming” do not add inventive concepts to an
`
`otherwise abstract claim). The Supreme Court has clearly established that “adding token
`
`postsolution components [does] not make [an abstract] concept patentable.” Bilski v.
`
`Kappos, 561 U.S. 593, 612 (2010); see also Diamond v. Diehr, 450 U.S. 175, 191-92
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`(1981) (citations omitted) (“[I]nsignificant post-solution activity will not transform an
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`unpatentable principle into a patentable process. To hold otherwise would allow a
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`competent draftsman to evade the recognized limitations on the type of subject matter
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`eligible for patent protection.”). Adding generic or conventional computer operations,
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`like drag-and-drop, to an otherwise abstract idea is not sufficient to make the claim
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`patentable. See Alice, 134 S. Ct. at 2355 (stating that the balance of the claim must add
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`“significantly more” than generic computer limitations in order for an implementation of
`
`an abstract idea to be patentable (emphasis added)); see also, e.g., Nexuscard, Inc. v.
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`Kroger Co., No. 2:15-cv-968-JRG-RSP, 2016 WL 1162180 at *5 (E.D. Tex. Mar. 24,
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`2016) (finding that limitations reciting “printed receipts” or “cash register with
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`communication means” did not add inventive steps to claim directed to the abstract
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`concept of executing a membership discount program); Cloud Satchel, LLC v.
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`Amazon.com, Inc., 76 F.Supp.3d 553, 564 (D. Del. 2014) (quoting In re Katz Interactive
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`Call Processing Patent Litig., 639 F.3d 1303, 1316 (Fed.Cir.2011) (limitations, such as
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`transmitting and receiving, that “do nothing more than recite functions that ‘can be
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`achieved by any general purpose computer without special programming’” are not
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`inventive, even if such limitations were not conventional in the field of computing at the
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`time of invention). If adding something as simple as “drag-and-drop” to a claim were
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`CiM Ex. 1012 Page 14
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`Case 6:16-cv-00095-RWS Document 7 Filed 05/24/16 Page 15 of 18 PageID #: 56
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`sufficient to make an otherwise abstract concept patentable, drafters would be able to add
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`common user interface limitations and effectively preempt the use of an abstract concept
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`to get around § 101 invalidity. See Alice, 134 S. Ct. at 2360 (instructing courts not to
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`interpret § 101 in ways that make patent eligibility depend on the “draftsman’s art”).
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`Because drag-and-drop functionality is a conventional feature of generic computer
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`programs, it is insufficient to transform the abstract concept of claim 1 into patentable
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`subject matter.
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`
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`Similarly, none of the dependent claims contains an inventive concept. Claim 2
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`simply requires a simultaneous display of scheduled and unscheduled jobs, a
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`conventional means of displaying weekly schedules. Claims 3, 4, and 20 each add
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`limitations related to identifying resource loading, including tracking of available
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`personnel or work group time. Tracking resources, including manpower availability,
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`however, is a necessary step in effective schedule planning, and would be an expected
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`feature of scheduling. Claims 5, 6, and 7 are directed to using color-coding to indicate the
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`status of a work-order. However, this is simply the addition of another conventional step,
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`as humans have long used color-coding as a means to organize scheduling information.
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`Therefore, these limitations also lack any inventive concept. Claims 8 through 16 all
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`include limitations that are directed to generic computer or user interface operations and
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`therefore also do contain inventive concepts.5 Claim 17 requires the program to include a
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`section on the date and time of an assignment of specific resources to each work order,
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`another concept of conventional scheduling systems. Finally, claims 18 and 19 go to
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`5 Claim 9 does not appear to include any additional limitations.
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`Case 6:16-cv-00095-RWS Document 7 Filed 05/24/16 Page 16 of 18 PageID #: 57
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`tracking emergent work, such as emergent and sponsored work, another conventional
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`concept in scheduling systems.
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`Nor do the claims of the ’205 Patent suggest that they “improve the functioning of
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`the network itself” or “effect an improvement in any other technology or technical field.”
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`Alice, 134 S.Ct. at 2359-60. None of the claims are directed to a novel machine or
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`apparatus, and none of the claims are directed toward solving a problem specific to
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`computers or computer components. Rather, the recited physical components of the
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`claims of the ’205 Patent do nothing more than “behave exactly as expected according to
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`their ordinary use” and thus are insufficient to confer patent eligibility. TLI, No. 2015-
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`1372, 2016 WL 2865693, at *7.
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`IV. CONCLUSION
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`For the reasons discussed herein, CiM respectfully requests that this Court find as
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`a matter of law that the claims of the ’205 Patent are ineligible for patenting under 35
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`U.S.C. § 101 and dismiss P&RO’s complaint against CiM pursuant to Fed. R. Civ. P.
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`12(b)(6).
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`CiM Ex. 1012 Page 16
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`Case 6:16-cv-00095-RWS Document 7 Filed 05/24/16 Page 17 of 18 PageID #: 58
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`Respectfully submitted,
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`
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`/s/ Abran J. Kean______________
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`
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`Abran J. Kean (CO Bar 44660)
`ERISE IP, P.A.
`5600 Greenwood Plaza Blvd., Suite 200
`Greenwood Village, CO 80111
`Phone: (913) 777-5600
`abran.kean@eriseip.com
`
`Eric A. Buresh (KS Bar 19895)
`ERISE IP, P.A.
`6201 College Blvd
`Suite 300
`Overland Park, Kansas 66211
`Phone: (913) 777-5600
`Facsimile: (913) 777-5601
`buresh.eric@eriseip.com
`
`Counsel for Defendant CiM
`Maintenance Inc.
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`15
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`Dated: May 24 2016
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`CiM Ex. 1012 Page 17
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`Case 6:16-cv-00095-RWS Document 7 Filed 05/24/16 Page 18 of 18 PageID #: 59
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`CERTIFICATE OF SERVICE
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`I hereby certify that on May 24, 2016, the foregoing document was filed with the
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`Clerk of the Court using CM/ECF and that all counsel of record who are deemed to have
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`consented to electronic service are being served with a copy of this document via the
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`Court’s CM/ECF system accordingly.
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`/s/ Abran J. Kean______________
`Abran J. Kean
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`16
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`CiM Ex. 1012 Page 18