Case: 19-2041 Document: 56 Page: 1 Filed: 07/14/2020
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`PACKET INTELLIGENCE LLC,
`Plaintiff-Appellee
`
`v.
`
`NETSCOUT SYSTEMS, INC., NETSCOUT SYSTEMS
`TEXAS, LLC, FKA TEKTRONIX TEXAS, LLC DBA
`TEKTRONIX COMMUNICATIONS,
`Defendants-Appellants
`______________________
`
`2019-2041
`______________________
`
`Appeal from the United States District Court for the
`Eastern District of Texas in No. 2:16-cv-00230-JRG, Judge
`J. Rodney Gilstrap.
`______________________
`
`Decided: July 14, 2020
`______________________
`
`PAUL SKIERMONT, Skiermont Derby LLP, Dallas, TX,
`for plaintiff-appellee. Also represented by SADAF R.
`ABDULLAH, STEVEN WAYNE HARTSELL, STEVEN UDICK;
`MIEKE K. MALMBERG, Los Angeles, CA.
`
` ERIC KRAEUTLER, Morgan, Lewis & Bockius LLP, Phil-
`adelphia, PA, for defendants-appellants. Also represented
`by JULIE S. GOLDEMBERG; JASON D. FRANK, Boston, MA;
`KARON NICOLE FOWLER, Chicago, IL; WILLIAM R.
`PETERSON, Houston, TX; AHREN CHRISTIAN HSU-HOFFMAN,
`
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`MICHAEL JOHN LYONS, THOMAS Y. NOLAN, Palo Alto, CA;
`MICHAEL FRANCIS CARR, Milpitas, CA.
` ______________________
`
`Before LOURIE, REYNA, and HUGHES, Circuit Judges.
`Opinion for the court filed by Circuit Judge LOURIE.
`Opinion concurring in part and dissenting in part filed by
`Circuit Judge REYNA.
`LOURIE, Circuit Judge.
`NetScout Systems, Inc. and NetScout Systems Texas,
`LLC (“NetScout”) appeal from the judgment of the U.S.
`District Court for the Eastern District of Texas after a jury
`verdict and bench trial that (1) NetScout willfully infringed
`claims 10 and 17 of U.S. Patent 6,665,725 (“the ’725 pa-
`tent”), claims 1 and 5 of U.S. Patent 6,839,751 (“the ’751
`patent”), and claims 19 and 20 of U.S. Patent 6,954,789
`(“the ’789 patent”); (2) no asserted claim is invalid under 35
`U.S.C. §§ 101, 102(a), 102(f); (3) Packet Intelligence LLC
`(“Packet Intelligence”) is entitled to $3.5 million in dam-
`ages for pre-suit infringement; (4) Packet Intelligence is en-
`titled to post-suit damages of $2.25 million; (5) Packet
`Intelligence is entitled to $2.8 million in enhanced dam-
`ages; and (6) Packet Intelligence is entitled to an ongoing
`royalty for future infringement of 1.55%. Packet Intelli-
`gence LLC v. NetScout Sys., Inc., No. 2:16-cv-230-JRG,
`2018 WL 4286193, at *1 (E.D. Tex. Sept. 7, 2018).
`Because the district court erred in denying NetScout’s
`motion for judgment as a matter of law on pre-suit dam-
`ages, we reverse the district court’s pre-suit damages
`award and vacate the court’s enhancement of that award.
`We affirm the district court’s judgment in all other re-
`spects.
`
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`BACKGROUND
`Packet Intelligence owns the ’725, ’751, and ’789 pa-
`tents, which teach a method for monitoring packets ex-
`changed over a computer network. A stream of packets
`between two computers is called a connection flow. ’789
`patent col. 2 ll. 43–45. Monitoring connection flows cannot
`account for disjointed sequences of the same flow in a net-
`work. Id. col. 3 ll. 56–59. The specifications explain that it
`is more useful to identify and classify “conversational
`flows,” defined as “the sequence of packets that are ex-
`changed in any direction as a result of an activity.” Id. col.
`2 ll. 45–47. Conversational flows provide application-spe-
`cific views of network traffic and can be used to generate
`helpful analytics to understand network load and usage.
`See ’751 patent col. 3 l. 2–col. 4 l. 11.
`The claims of the’725, ’751, and ’789 patents asserted
`in the district court describe apparatuses and methods for
`network monitoring. The ’789 patent recites apparatus
`claims, and claims 19 and 20 were asserted. Claim 19 of
`’789 patent is drawn to a “packet monitor”:
`19. A packet monitor for examining packets pass-
`ing through a connection point on a computer net-
`work, each packet[] conforming to one or more
`protocols, the monitor comprising:
`(a) a packet acquisition device coupled to
`the connection point and configured to re-
`ceive packets passing through the connec-
`tion point;
`(b) an input buffer memory coupled to and
`configured to accept a packet from the
`packet acquisition device;
`(c) a parser subsystem coupled to the input
`buffer memory and including a slicer, the
`parsing subsystem configured to extract se-
`lected portions of the accepted packet and
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`to output a parser record containing the se-
`lected portions;
`(d) a memory for storing a database com-
`prising none or more flow-entries for previ-
`ously encountered conversational flows,
`each flow-entry identified by identifying in-
`formation stored in the flow-entry;
`(e) a lookup engine coupled to the output of
`the parser subsystem and to the flow-entry
`memory and configured to lookup whether
`the particular packet whose parser record
`is output by the parser subsystem has a
`matching flow-entry, the looking up using
`at least some of the selected packet por-
`tions and determining if the packet is of an
`existing flow; and
`(f) a flow insertion engine coupled to the
`flow-entry memory and to the lookup en-
`gine and configured to create a flow-entry
`in the flow-entry database, the flow-entry
`including identifying information for fu-
`ture packets to be identified with the new
`flow-entry, the lookup engine configured
`such that if the packet is of an existing
`flow, the monitor classifies the packet as
`belonging to the found existing flow; and if
`the packet is of a new flow, the flow inser-
`tion engine stores a new flow-entry for the
`new flow in the flow-entry database, in-
`cluding identifying information for future
`packets to be identified with the new flow-
`entry,
`wherein the operation of the parser subsystem de-
`pends on one or more of the protocols to which the
`packet conforms.
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`’789 patent col. 36 l. 31–col. 37 l. 2. Claim 20 of the ’789
`patent depends from claim 19 and further requires that
`“each packet passing through the connection point is ac-
`cepted by the packet buffer memory and examined by the
`monitor in real time.” Id. col. 37 ll. 3–6.
`In contrast to the apparatus claims of the ’789 patent,
`the ’725 and ’751 patents recite method claims. The ’725
`patent claims recite a method for performing protocol-spe-
`cific operations on a packet through a connection point on
`a network, comprising receiving a packet and executing
`protocol specific operations on it, including parsing and ex-
`traction to determine whether the packet belongs to a con-
`versational flow. And the ’751 patent claims recite
`methods of analyzing a flow of packets with similar steps.
`Although the asserted claims include varied language, the
`parties treat claim 19 of the ’789 patent as representative
`of all of the asserted claims for infringement and invalidity.
`Thus, we focus on claim 19 in our analysis.
`Packet Intelligence asserted claims 19 and 20 of the
`’789 patent, claims 10 and 17 of the ’725 patent, and claims
`1 and 5 of the ’751 patent against NetScout’s “G10” and
`“GeoBlade” products in the United States District Court for
`the Eastern District of Texas. The case was tried to a jury
`on the issues of infringement, damages, willfulness, and in-
`validity under 35 U.S.C. § 102. The jury found all claims
`willfully infringed, rejected NetScout’s invalidity defenses,
`and awarded pre-suit and post-suit damages. Following
`the jury verdict, the district court issued findings of fact
`and conclusions of law under Fed. R. Civ. P. 52 rejecting
`NetScout’s § 101 invalidity defense. The court also en-
`hanced damages in the amount of $2.8 million and, in ac-
`cordance with the jury’s verdict, awarded an ongoing
`royalty for post-verdict infringement.
`NetScout appealed, and we have jurisdiction under 28
`U.S.C. § 1295(a)(1).
`
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`DISCUSSION
`In reviewing issues tried to a jury, we review the dis-
`trict court’s denial of post-trial motions for judgment as a
`matter of law and for a new trial under the law of the re-
`gional circuit—here, the Fifth Circuit. See Finjan, Inc. v.
`Secure Computing Corp., 626 F.3d 1197, 1202 (Fed. Cir.
`2010) (citing Revolution Eyewear, Inc. v. Aspex Eyewear,
`Inc., 563 F.3d 1358, 1370 (Fed. Cir. 2009)). Under Fifth
`Circuit law, we review de novo the denial of a motion for
`judgment as a matter of law, applying the same legal
`standard as the district court. Baisden v. I’m Ready Prods.,
`Inc., 693 F.3d 498, 499 (5th Cir. 2012). Judgment as a mat-
`ter of law should be granted if “a reasonable jury would not
`have a legally sufficient evidentiary basis to find for the
`party on that issue.” Fed. R. Civ. P. 50(a).
`We are “especially deferential” to a jury’s verdict, re-
`versing only for lack of substantial evidence. Baisden, 693
`F.3d at 498–99. “Substantial evidence” is “evidence of such
`quality and weight that reasonable and fair-minded men in
`the exercise of impartial judgment might reach different
`conclusions.” Threlkeld v. Total Petroleum, Inc., 211 F.3d
`887, 891 (5th Cir. 2000) (quoting Gaia Techs., Inc. v. Recy-
`cled Prods. Corp., 175 F.3d 365, 374 (5th Cir. 1999)). We
`“draw all reasonable inferences in the light most favorable
`to the verdict and cannot substitute other inferences that
`we might regard as more reasonable.” EEOC v. Boh Bros.
`Constr. Co., 731 F.3d 444, 452 (5th Cir. 2013) (citing
`Westlake Petrochems., L.L.C. v. United Polychem, Inc., 688
`F.3d 232, 239 (5th Cir. 2012)). “Credibility determinations,
`the weighing of the evidence, and the drawing of legitimate
`inferences from the facts are jury functions, not those of a
`judge.” Reeves v. Sanderson Plumbing Prods., Inc., 530
`U.S. 133, 150–51 (2000) (quoting Anderson v. Liberty Lobby
`Inc., 477 U.S. 242, 255 (1986)).
`On appeal from a bench trial, we review a district
`court’s conclusions of law de novo and its findings of fact
`
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`for clear error. Braintree Labs., Inc. v. Novel Labs., Inc.,
`749 F.3d 1349, 1358 (Fed. Cir. 2014) (citing Brown & Wil-
`liamson Tobacco Corp. v. Philip Morris Inc., 229 F.3d 1120,
`1123 (Fed. Cir. 2000)). “A factual finding is clearly errone-
`ous when, despite some supporting evidence, we are left
`with a definite and firm conviction that the district court
`was in error.” Alcon Research Ltd. v. Barr Labs., Inc., 745
`F.3d 1180, 1186 (Fed. Cir. 2014) (citing Alza Corp. v. Mylan
`Labs., Inc., 464 F.3d 1286, 1289 (Fed. Cir. 2006)). “The
`burden of overcoming the district court’s factual findings
`is, as it should be, a heavy one.” Polaroid Corp. v. Eastman
`Kodak Co., 789 F.2d 1556, 1559 (Fed. Cir. 1986). “Where
`there are two permissible views of the evidence, the fact-
`finder’s choice between them cannot be clearly erroneous.”
`Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)
`(citing United States v. Yellow Cab Co., 338 U.S. 338, 342
`(1949)).
`In this appeal, NetScout challenges the district court’s
`judgment on the issues of infringement, invalidity under
`§ 101, invalidity under § 102, pre-suit damages, and will-
`fulness. We address each issue in turn.
`I. Infringement
`We first address NetScout’s claim that it did not in-
`fringe the asserted patents. An infringement analysis re-
`quires two steps. Clare v. Chrysler Grp. LLC, 819 F.3d
`1323, 1326 (Fed. Cir. 2016). First, the court construes the
`asserted claims. Claim construction is a question of law
`that may involve underlying factual questions. Teva
`Pharm. USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 332 (2015).
`Second, the court determines whether the accused product
`meets each limitation of the claim as construed, which is a
`question of fact. Wright Med. Tech., Inc. v. Osteonics Corp.,
`122 F.3d 1440, 1443 (Fed. Cir. 1997).
`NetScout’s two-step theory concerning why it is not an
`infringer relies entirely on claim 19’s memory limitation.
`First, NetScout argues that the limitation requires
`
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`correlating connection flows into conversational flows. Ap-
`pellant’s Br. 36. Then, under NetScout’s understanding of
`the claim language, NetScout submits that its products
`cannot infringe because no accused products meet that lim-
`itation. In NetScout’s view, the record establishes that the
`accused products track connection flows but never join
`them together.
`Packet Intelligence responds that it presented thor-
`ough evidence supporting the jury’s infringement verdict.
`In response to NetScout’s claim construction argument,
`Packet Intelligence counters that the claims do not require
`joining flows into a single conversational flow.
`We first agree with Packet Intelligence that the claims
`do not require the joining of connection flows into conver-
`sational flows. The term “conversational flow” appears in
`claim 19’s memory limitation: “a memory for storing a da-
`tabase comprising none or more flow-entries for previously
`encountered conversational flows, each flow-entry identi-
`fied by identifying information stored in the flow entry.”
`’789 patent col. 36 ll. 45–48. Contrary to NetScout’s argu-
`ment, however, a limitation requiring memory for storing
`flow entries for previously encountered conversational
`flows does not require the added action of correlating con-
`nection flow entries into conversational flows.
`Even if NetScout were correct that the claims require
`correlating connection flows into conversational flows,
`however, the jury’s infringement verdict is supported by
`substantial evidence. Dr. Almeroth testified that the ac-
`cused products contain a “flow state block” (“FSB”), “corre-
`sponding” to source code “Fsb.c.” J.A. 1265:1–1266:20.
`According to Dr. Almeroth, the FSB contains flow entries
`and the information in the flow record can be used to cor-
`relate or associate flow entries into conversational flows.
`J.A. 1265:1–10; 1266:25–1267:2. This testimony alone is
`substantial evidence supporting the jury’s verdict.
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`As further confirmation that the accused products in-
`fringe, Dr. Almeroth also provided an “example” of how
`NetScout’s products use the information in memory to cre-
`ate a “key performance index” in a NetScout white paper
`titled “Subscriber Web Page Download Time Estimation in
`Passive Monitoring Systems.”
` J.A. 1267:8–1268:11.
`Dr. Almeroth testified that the feature “demonstrate[d]
`that information in the flow record is sufficient to identify
`the flow-entry and also to allow it to associate with previ-
`ously-encountered conversation flows.” Id.
`Given the evidence presented to the jury on claim 19’s
`memory limitation and because NetScout has challenged
`no other aspect of the jury’s infringement finding, we can-
`not conclude that the jury’s verdict lacked substantial evi-
`dence.
`
`II. Patent Eligibility
`NetScout claims that the patents it is accused of in-
`fringing cover ineligible subject matter. Patent eligibility
`under § 101 “is ultimately an issue of law that we review
`de novo,” Berkheimer v. HP Inc., 881 F.3d 1360, 1365 (Fed.
`Cir. 2018) (citing Intellectual Ventures I LLC v. Capital One
`Fin. Corp., 850 F.3d 1332, 1338 (Fed. Cir. 2017)), although
`it may involve underlying fact findings, id. (citing Mortg.
`Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314,
`1325 (Fed. Cir. 2016)). Under 35 U.S.C. § 101, “[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.” In
`evaluating eligibility, we first determine whether the
`claims at issue are directed to a patent-ineligible concept.
`Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217 (2014) (cit-
`ing Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
`566 U.S. 66, 77 (2012)). If so, we then “examine the ele-
`ments of the claim to determine whether it contains an ‘in-
`ventive concept’ sufficient to ‘transform’ the claimed
`
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`abstract idea into a patent-eligible application.” Id. at 221
`(quoting Mayo, 566 U.S. at 72–73, 78).
`The parties submitted the issue of eligibility to be tried
`to the bench, and the district court issued findings of fact
`and conclusions of law under Fed. R. Civ. P. 52. Packet
`Intelligence LLC v. NetScout Sys., Inc., No. 2:16-cv-230-
`JRG (E.D. Tex. Feb. 14, 2018), ECF No. 298 (“Eligibility
`Decision”). The parties agree that claim 19 is representa-
`tive of the asserted claims, so we begin by reviewing the
`district court’s analysis for this claim.
`The district court first made a series of factual findings
`about the claimed inventions’ advantages over the prior
`art. According to the district court, to measure the amount
`or type of information being transmitted by a particular ap-
`plication or protocol, a network monitor must measure “all
`of the connection flows through which that application or
`protocol transmits packets.” Id. slip op. at 5. The court
`found that prior art monitors could not identify disjointed
`connection flows as belonging to the same conversational
`flow. Id. slip. op. at 9.
`The patents addressed this “problem” in the art by
`parsing packets to extract information that can be used to
`associate packets with single conversational flows, which
`correspond to particular applications or protocols. Id. slip
`op. at 6. A “parser subsystem ‘parses the packet and deter-
`mines the protocol types and associated headers for each
`protocol layer,’ ‘extracts characteristic portions (signature
`information) from the packet,’ and builds a ‘unique flow sig-
`nature’ (also called a “key”)’ based on the packet.” Id. slip
`op. at 7 (citing first ’789 patent col. 12 l. 19–col. 13 l.28;
`then id. col. 33 l. 30–col. 34 l. 33). An “analyzer subsystem”
`then “determines whether the packet, based on this signa-
`ture or key, has a corresponding entry in the flow-entry da-
`tabase.” Id. (citing ’789 patent col. 13 l. 60–col. 16 l. 52). If
`there is a corresponding entry, the flow-entry is updated,
`and additional operations may be performed to “fully
`
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`characterize” the associated conversational flow. Id. (citing
`’789 patent col. 14 ll. 54–61). If there is no corresponding
`entry, a new entry is created and “protocol and state iden-
`tification process 318 further determines . . . the protocols”
`and part of the state sequence the packet belongs to. Id.
`slip. op. at 8 (citing ’789 patent col. 14 ll. 44–53).
`According to the district court, prior art monitors could
`not identify disjointed connection flows as belonging to the
`same conversational flow, but the claimed invention could
`provide a granular, nuanced, and useful classification of
`network traffic. Id. slip op. at 10. The court found that the
`metrics made possible by the recited invention improved
`quality and performance of traffic flows. Id. slip. op. at 11.
`Specifically, the monitors had an improved ability to clas-
`sify and diagnose network congestion while providing in-
`creased network visibility to identify intrusions and
`malicious attacks. Id.
`With this factual background, the court applied the Al-
`ice framework. First, the court rejected NetScout’s argu-
`ment that claim 19 is directed to the collection, comparison,
`and classification of information. The court instead held
`that the claim was directed to “solving a discrete technical
`problem: relating disjointed connection flows to each
`other.” Id. slip. op. at 30. The court determined that the
`claim was directed to “specific technological solutions, such
`as identifying and refining a conversational flow so that
`different connection flows can be associated with each
`other and ultimately an underlying application or proto-
`col.” Id. At step one, the district court also rejected
`NetScout’s argument that the claims are directed to an ab-
`stract idea because they do not explain how to determine
`whether packets belong to a conversational flow. Accord-
`ing to the district court, NetScout’s argument focused on
`the claims in isolation instead of the claims as read in light
`of the specification. In the court’s view, the claims and
`specification “[t]aken together . . . teach how to identify
`that certain packets belong to the same conversational
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`flow,” especially in light of NetScout’s expert’s testimony
`that the patents describe how one would identify and clas-
`sify different connections into a conversational flow. Id.
`slip op. at 32.
`Despite finding that the claims were not directed to an
`abstract idea, the court proceeded to step two of the Alice
`analysis, holding that NetScout failed to show that the
`combination of elements in the claims would have been re-
`garded as conventional, routine, or well-known by a skilled
`artisan at the time of the invention.
`In this appeal, NetScout maintains that the claims are
`directed to the abstract idea of collecting, comparing, and
`classifying packet information. NetScout submits that,
`even if the claims are directed to a technical problem—the
`need to correlate disjointed connection flows—they are not
`directed to a specific implementation of a solution of that
`problem. According to NetScout, the district court erred by
`considering the specification’s teachings of how to identify
`packets belonging to the same conversational flow.
`NetScout then argues that, at step two, the claims lack an
`inventive concept because the recited components in the
`claim are standard, off-the-shelf components, used in every
`probe.
`Packet Intelligence counters that the district court cor-
`rectly held that the claims are not directed to an unpatent-
`able abstract idea. Packet Intelligence faults NetScout for
`oversimplifying the claims and maintains that the district
`court was correct to consider the specification in its analy-
`sis. Packet Intelligence further submits that the claims are
`directed to a technical problem and, as the district court
`found, recite an unconventional technological solution, con-
`structing conversational flows that associate connection
`flows with each other and ultimately specific applications
`or protocols. Even if the claims were directed to an abstract
`idea, however, Packet Intelligence argues that NetScout
`has failed to show clear error in the district court’s fact
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`findings at step two that the invention’s components were
`not routine or conventional.
`We agree with Packet Intelligence that claim 19 is not
`directed to an abstract idea. In our eligibility analysis, we
`consider the claim as a whole, Diamond v. Diehr, 450 U.S.
`175, 188 (1981), and read it in light of the specification,
`Data Engine Techs. LLC v. Google LLC, 906 F.3d 999, 1011
`(Fed. Cir. 2018). We have recognized that “software-based
`innovations can make ‘non-abstract improvements to com-
`puter technology’ and be deemed patent-eligible subject
`matter at step 1.” Finjan, Inc. v. Blue Coat Sys., Inc., 879
`F.3d 1299, 1304 (Fed. Cir. 2018) (quoting Enfish, LLC v.
`Microsoft Corp., 822 F.3d 1327, 1335–36 (Fed. Cir. 2016)).
`And at step one, we consider whether the “focus of the
`claims is on [a] specific asserted improvement in computer
`capabilities . . . or, instead, on a process that qualifies as
`an ‘abstract idea’ for which computers are invoked merely
`as a tool.” Enfish, 822 F.3d at 1335–36. In Enfish, for ex-
`ample, we held that a claim to a self-referential table was
`not directed to an abstract idea because the table embodies
`an improvement in the way computers operate. Id. In
`reaching that conclusion, we explained that the specifica-
`tion taught that the self-referential table functioned differ-
`ently from conventional databases, providing increased
`flexibility, faster search times, and smaller memory re-
`quirements. Id. at 1337.
`Likewise, in SRI International, Inc. v. Cisco Systems,
`Inc., 930 F.3d 1295 (Fed. Cir. 2019), cert. denied, 140 S. Ct.
`1108 (2020) (Mem.), we held claims drawn to a method of
`hierarchical computer network monitoring to be patent-el-
`igible. The SRI claims recited a series of steps, including
`“deploying” network monitors, which detect “suspicious
`network activity based on analysis of network traffic data,”
`and generate and integrate “reports of . . . suspicious activ-
`ity.” Id. at 1301. At step one, we held that the claims were
`not directed to an abstract idea because they were “neces-
`sarily rooted in computer technology in order to solve a
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`specific problem in the realm of computer networks.” Id.
`at 1303. We recognized that the claims were not using a
`computer as a tool but, instead, recited a specific technique
`for improving computer network security. In informing our
`understanding of the technology and its relationship to the
`art, we relied on statements in the specification that the
`claimed invention purported to solve weaknesses in the
`prior art by providing a framework for recognition of global
`threats to interdomain connectivity. As relevant here, the
`SRI claims recited general steps for network monitoring
`with minimal detail present in the claim limitations them-
`selves.
`Like the SRI claims, claim 19 purports to meet a chal-
`lenge unique to computer networks, identifying disjointed
`connection flows in a network environment. The claim
`solves a technological problem by identifying and refining
`a conversational flow such that different connection flows
`can be associated with each other and ultimately with an
`underlying application or protocol. The claims detail how
`this is achieved in several steps. The claimed “parser sub-
`system” extracts information from the packet. This packet
`information is checked against “flow-entry memory” by the
`claimed “lookup engine.” The flow insertion engine coupled
`to the memory and the lookup engine determines whether
`the packet matches an entry in the flow-entry database. If
`there is a match, the flow insertion engine updates the
`matching entry with data from the new packet. If there is
`no match, the engine creates a new entry.
`The asserted patents’ specifications make clear that
`the claimed invention presented a technological solution to
`a technological problem. The specifications explain that
`known network monitors were unable to identify disjointed
`connection flows to each other, and the focus of the claims
`is a specific improvement in computer technology: a more
`granular, nuanced, and useful classification of network
`traffic. See, e.g., ’751 patent col. 2 ll. 53–56; col. 3 l. 2–
`col. 4 l. 6. The specifications likewise explain how the
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`elements recited in the claims refer to specific technological
`features functioning together to provide that granular, nu-
`anced, and useful classification of network traffic, rather
`than an abstract result. See, e.g., ’789 patent col. 23 l. 38—
`col. 27 l. 50 (describing the technological implementation of
`the lookup engine and flow insertion engine as used in the
`claims); see also ’725 patent col. 10 l. 3—col. 13 l. 4.
`In its argument regarding step one of the Alice analy-
`sis, NetScout argues that Two-Way Media Ltd. v. Comcast
`Cable Commc’ns, LLC, 874 F.3d 1329 (Fed. Cir. 2017), lim-
`its our consideration of the specification’s concrete embod-
`iments, including Figure 2. But we need not rely on the
`specific data disclosed in Figure 2 of the specification to de-
`termine that claim 19 is not directed to an abstract idea.
`Regardless, Two-Way Media does not support NetScout’s
`view. In Two-Way Media, this court commented that at
`step two, the claim, not the specification, must include an
`inventive concept. Id. at 1338 (“The main problem that
`Two-Way Media cannot overcome is that the claim—as op-
`posed to something purportedly described in the specifica-
`tion—is missing an inventive concept.”). Here, because we
`have concluded that the claims are not directed to an ab-
`stract idea, we do not reach step two. SRI, 930 F.3d at 1304
`(citing Enfish, 822 F.3d at 1339). Because the parties treat
`claim 19 as representative of all asserted claims, we there-
`fore conclude that all asserted claims are patent-eligible.
`III. Invalidity under § 102
`At trial, NetScout presented the jury with its theory
`that the asserted patents are invalid under § 102(f) for fail-
`ure to list the RMON Working Group as inventors. Specif-
`ically, NetScout argued that the RMON Working Group
`devised the “Track Sessions” probe functionality that re-
`lates connection flows into conversational flows as claimed
`in the patents. Track Sessions allows probe software to join
`together first connections starting on well-known ports
`with second connections that are on dynamically assigned
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`ports by remembering the port assignments. Version 4.5
`of Track Sessions was available in October 1998, before the
`June 30, 1999 priority date of the asserted patents.
`To support its inventorship theory, NetScout relied on
`testimony from its expert, Mr. Waldbusser, who main-
`tained that the Track Sessions Probe as implemented could
`correlate packets associated with an activity, even though
`those packets were exchanged via different connection
`flows with different port numbers. NetScout also points to
`testimony from a named inventor of the asserted patents,
`Mr. Dietz, who stated that he was aware of the RMON
`Working Group’s publications, including Track Sessions.
`NetScout also submits that the claims are at least antici-
`pated by the Track Sessions probe.
`Packet Intelligence contends that the jury’s rejection of
`NetScout’s § 102 challenge is supported by substantial ev-
`idence. Packet Intelligence faults Mr. Waldbusser for fail-
`ing to consider the limitations of claim 19, instead focusing
`more generally on “conversational flows,” and points to
`Dr. Almeroth’s testimony that Track Sessions counts all of
`the packets in a conversational flow as a single flow entry,
`as opposed to correlating several connection flows. Packet
`Intelligence also cites Dr. Almeroth’s testimony that Track
`Sessions fails to provide visibility into application content
`and is limited to providing network layer information.
`The district court rejected NetScout’s motion for judg-
`ment as a matter of law on its inventorship and anticipa-
`tion defenses, holding that the jury’s verdict is supported
`by substantial evidence. In support, the court cited Dr. Al-
`meroth’s testimony that Mr. Waldbusser failed to analyze
`the claim language as written and that the NetScout probe
`did not associate connection flows but, instead, replaced
`one flow with another.
`We agree with the district court that the jury’s verdict
`is supported by substantial evidence. While NetScout asks
`us to accept its interpretation of the record, the jury was
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`permitted to weigh Dr. Almeroth’s testimony over that of
`Mr. Waldbusser. Reeves, 530 U.S. at 150–51. Specifically,
`Dr. Almeroth testified that Track Sessions attributes all
`packets of a protocol that starts se