Case 2:16-cv-00741-RWS Document 88 Filed 11/21/16 Page 1 of 16 PageID #: 946
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`Civil Action No.:
`2:16-cv-741[JRG]
`
`PATENT CASE
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`
`
`JURY TRIAL DEMANDED
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`
`
`
`
`
`
`DEFENDANT ADP, LLC’S REPLY IN SUPPORT OF ITS MOTION TO
`DISMISS THE COMPLAINT FOR FAILURE TO STATE A CLAIM
`
`UNILOC USA, INC. and
`UNILOC LUXEMBOURG, S.A.,
`
`Plaintiffs,
`
`v.
`
`ADP, LLC,
`
`Defendant.
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`
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`

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`Case 2:16-cv-00741-RWS Document 88 Filed 11/21/16 Page 2 of 16 PageID #: 947
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`TABLE OF CONTENTS
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`PAGE
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`I. UNILOC’S CLAIMS ARE ABSTRACT AND LACK AN INVENTIVE
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`CONCEPT ............................................................................................................................. 2
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`II. EVEN UNDER UNILOC’S PROPOSED “CONSTRUCTIONS,” ITS CLAIMS
`
`ARE UNPATENTABLE ....................................................................................................... 5
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`III. THE DISTRICT COURT CASES CITED BY UNILOC ARE
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`DISTINGUISHABLE ........................................................................................................... 8
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`IV. ADP’S CHALLENGE TO ALL CLAIMS IS APPROPRIATE ....................................... 9
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`V. UNILOC INADEQUATELY PLEADS INFRINGEMENT OF THE
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`’293 PATENT ...................................................................................................................... 10
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`VI. CONCLUSION .................................................................................................................... 10
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`Case 2:16-cv-00741-RWS Document 88 Filed 11/21/16 Page 3 of 16 PageID #: 948
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`CASES
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`TABLE OF AUTHORITIES
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`PAGE
`
`800 Adept, Inc. v. Murex Sec. Ltd.,
`539 F.3d 1354 (Fed. Cir. 2008)..................................................................................................9
`
`A Pty Ltd. v. Ebay, Inc., 1:15-cv-155-RP,
`Oct. 8, 2015 Order at *4 (W.D. Tex.) (slip op.).......................................................................10
`
`A Pty Ltd. v. Ebay, Inc.,
`149 F. Supp. 3d 739 (W.D. Tex. 2016)....................................................................................10
`
`Accenture Global Servs., GmbH v. Guidewire Software, Inc.,
`728 F.3d 1336 (Fed. Cir. 2013)..................................................................................................1
`
`Alice Corp. Pty. Ltd. v. CLS Bank Int’l,
`134 S. Ct. 2347 (2014) ...............................................................................................................1
`
`Bascom Glob. Internet Servs. v. AT&T Mobility LLC,
`827 F.3d 1341 (Fed. Cir. 2016)......................................................................................1, 2, 3, 4
`
`Clear with Computers LLC v. Altec Indus., No. 6:14-cv-79-JRG,
`2015 WL 993392 (E.D. Tex. Mar. 3, 2015) .............................................................................7
`
`Content Extraction and Transmission LLC v. Wells Fargo Bank, N.A.,
`776 F.3d 1343 (Fed. Cir. 2014)..................................................................................................1
`
`Core Wireless Licensing S.a.r.l. v. LG Elecs., Inc., No. 2:14-cv-911-JRG-RSP,
`2016 U.S. Dist. LEXIS 35663 (E.D. Tex. Mar. 20, 2016).........................................................9
`
`Core Wireless Licensing S.a.r.l. v. LG Elecs., Inc., No. 2:14-cv-911-JRG-RSP,
`2016 U.S. Dist. LEXIS 123232 (E.D. Tex. Aug. 8, 2016) ....................................................1, 2
`
`DDR Holdings, LLC v. Hotels.com L.P.,
`773 F.3d 1245 (Fed. Cir. 2014)..............................................................................................3, 4
`
`Enfish, LLC v. Microsoft Corp.,
`822 F.3d 1327 (Fed. Cir. 2016)..................................................................................................3
`
`Genband US LLC v. Metaswitch Networks Ltd., No. 2:14-cv-33-JRG,
`2016 U.S. Dist. LEXIS 134659 (E.D. Tex. Sept. 29, 2016) ......................................................9
`
`JDS Techs., Inc. v. Exacq Techs., No. 15-10387,
`2016 U.S. Dist. LEXIS 73622 (E.D. Mich. June 7, 2016) .........................................................9
`
`McRO, Inc. v. Bandai Namco Games Am. Inc.,
`837 F.3d 1299 (Fed. Cir. 2016)..................................................................................................8
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`Case 2:16-cv-00741-RWS Document 88 Filed 11/21/16 Page 4 of 16 PageID #: 949
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`NexusCard, Inc. v. Kroger Co.,
`173 F. Supp. 3d 462, 467 (E.D. Tex. 2016) ...............................................................................1
`
`Perdiemco, LLC v. Industrack LLC, 2:15-cv-727-JRG-RSP,
`2016 U.S. Dist. LEXIS 135667 (E.D. Tex. Sept. 21, 2016) ......................................................8
`
`Pres. Wellness Techs. LLC v. Allscripts Healthcare Sols., 2:15-CV-1559-WCB,
`2016 WL 2742379 (E.D. Tex. May 9, 2016) .............................................................................5
`
`Realtime Data, LLC v. Stanley,
`721 F. Supp. 2d 538 (E.D. Tex. 2010) .....................................................................................10
`
`Rothschild Location Techs. LLC v. Geotab USA, Inc., 6:15-cv-682-RWS-JDL,
`2016 WL 3584195 (E.D. Tex. Jan. 4, 2016) ..............................................................................5
`
`Tranxition, Inc. v. Lenovo (U.S.) Inc., 2015-1907,
`2016 WL 6775967 (Fed. Cir. Nov. 16, 2016) ............................................................................5
`
`Tranxition, Inc. v. Lenovo (U.S.) Inc., No. 3:12–cv–01065–HZ,
`2015 WL 4203469 (D. Or. July 9, 2015) ...........................................................................2, 4, 5
`
`Ultramercial, Inc. v. Hulu, LLC,
`772 F.3d 709 (Fed. Cir. 2014)....................................................................................................2
`
`VirnetX, Inc. v. Cisco Sys., Inc.,
`767 F.3d 1308 (Fed. Cir. 2014)..............................................................................................6, 7
`
`STATUTES
`
`35 U.S.C. § 101 ........................................................................................................................1, 8, 9
`
`RULES
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`Fed. R. Civ. P. 12(b)(6)..................................................................................................................10
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`Case 2:16-cv-00741-RWS Document 88 Filed 11/21/16 Page 5 of 16 PageID #: 950
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`TABLE OF ABBREVIATIONS
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`“Mot.” refers to ADP’s Motion to Dismiss the Complaint for Failure to State a Claim (D.I. 17).
`
`“Opp.” refers to Uniloc’s Opposition to ADP’s Motion to Dismiss (D.I. 64).
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`The “’578 Patent” refers to U.S. Patent No. 6,324,578, provided as Exhibit A to Uniloc’s
`Complaint (D.I. 1-1) .
`
`The “’293 Patent” refers to U.S. Patent No. 7,069,293, provided as Exhibit B to Uniloc’s
`Complaint (D.I. 1-2) .
`
`The “’466 Patent” refers to U.S. Patent No. 6,510,466, provided as Exhibit C to Uniloc’s
`Complaint (D.I. 1-3).
`
`The “’766 Patent” refers to U.S. Patent No. 6,728,766, provided as Exhibit D to Uniloc’s
`Complaint (D.I. 1-4).
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`
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`Uniloc asserts that its claims are patentable because they require particular “client-server
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`environment[s],” “computer network[s],” and “application programs.” (E.g., Opp. at 10–11.) But
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`if that were enough, the Supreme Court would not have affirmed the unpatentability of the
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`claims in Alice that required “a ‘data processing system’ with a ‘communications controller’ and
`
`‘data storage unit.’” Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2360 (2014). Nor
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`would the Federal Circuit have affirmed unpatentability in Accenture Global, where the claims
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`required “clients” and “servers,” or in Content Extraction, where an “application program” was
`
`claimed. Accenture Global Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336 (Fed. Cir.
`
`2013); Content Extraction and Transmission LLC v. Wells Fargo Bank, N.A., 776 F.3d 1343
`
`(Fed. Cir. 2014). Nor would this Court have found unpatentable the claims in NexusCard reciting
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`computer terminals and databases and a method which the Court recognized “must be performed
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`on a network.” NexusCard, Inc. v. Kroger Co., 173 F. Supp. 3d 462, 467 (E.D. Tex. 2016).
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`
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`Limiting claims to a specific computer environment and particular hardware
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`configurations does not preclude a finding of unpatentability under 35 U.S.C. § 101. Alice, 134
`
`S. Ct. at 2358. Instead, Uniloc must show that its computer-limited claims provide a
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`“technology-based solution” that overcomes problems in a technological art. Bascom Glob.
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`Internet Servs. v. AT&T Mobility LLC, 827 F.3d 1341, 1351 (Fed. Cir. 2016) (emphasis added).
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`That is, Uniloc must show that its invention does more than obtain conventional results from
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`conventional business practices. But, as shown in ADP’s motion, the patents-in-suit claim time-
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`honored methods of organizing human activity, “implemented with generic technical
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`components in a conventional way.” Id.; (see Mot. at 9–27.)
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`
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`ADP recognizes that a claim that, e.g., is “confined to, and solves problems arising in,” a
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`technological environment may not be directed to an abstract idea. (Opp. at 14–15 (citing Core
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`Case 2:16-cv-00741-RWS Document 88 Filed 11/21/16 Page 7 of 16 PageID #: 952
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`Wireless Licensing S.a.r.l. v. LG Elecs., Inc., No. 2:14-cv-911-JRG-RSP, 2016 U.S. Dist. LEXIS
`
`123232, at *31 (E.D. Tex. Aug. 8, 2016), adopted by 2016 U.S. Dist. LEXIS 122745 (E.D. Tex.
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`Sept. 12, 2016)) (emphasis added).) Uniloc’s claims fail this standard because centrally licensing
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`and distributing software is no different than centrally licensing and distributing products or
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`resources. By Uniloc’s own admission, the same problems are addressed: customer diversity and
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`a lack of automation. (Opp. at 2.) And in Uniloc’s own words, the same solutions are achieved:
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`“reduced costs,” “increased uniformity,” and greater “mobility.” (Id. at 5, 24-25.)
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`
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`The patents-in-suit were filed by IBM in the late 1990s when common problems in
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`distributing products and permissions across large enterprises had appeared in the computer
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`context, as geographically-distributed users began using networked servers to obtain and run
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`software. See, e.g., ’578 Patent at 1:45-57. To reduce administrative burden while maintaining
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`access control, IBM applied storied solutions of centralization, licensing, and structured
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`distribution to network environments. Patents improvidently granted for computer applications
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`of these well-known business solutions are now in the hands of Uniloc, who threatens to preempt
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`ADP and others from applying common techniques to their software products. But because
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`Uniloc’s claims apply conventional techniques to yield expected benefits, they are unpatentable.
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`I.
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`
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`UNILOC’S CLAIMS ARE ABSTRACT AND LACK AN INVENTIVE CONCEPT
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`A claim to an “abstract-idea-based solution” is unpatentable, even if that solution is
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`applied in a specific computer environment. Bascom, 827 F.3d at 1351; see Ultramercial, Inc. v.
`
`Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014), Tranxition, Inc. v. Lenovo (U.S.) Inc., No. 3:12–
`
`cv–01065–HZ, 2015 WL 4203469, at *6 (D. Or. July 9, 2015), aff’d, 2015-1907, 2016 WL
`
`6775967 (Fed. Cir. Nov. 16, 2016).
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`
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`Uniloc contends that its patents provide computer-based solutions to computer-based
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`problems. Not so. Uniloc’s claims are clearly limited to computer environments, but the
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`problems they solve are the same problems found in the conventional analogues described in
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`ADP’s motion, and the solutions disclosed are conventional solutions which yield conventional
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`benefits. The holdings in Bascom; Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir.
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`2016); and DDR Holdings, LLC v. Hotels.com L.P., 773 F.3d 1245 (Fed. Cir. 2014) are therefore
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`inapposite, as the patents in those cases implemented solutions unique to computers.
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`
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`To highlight the difference, imagine trying to explain a “self-referential database” (the
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`invention in Enfish) to a librarian or shopkeeper in, e.g., 1916. While he might recognize a
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`contemporary analogue for a “database,” he would not understand why or how a “self-
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`referential” database would be beneficial. This is because the problem the Enfish patent solves—
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`cumbersome deployment of a relational database requiring extensive modeling and software
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`configuration—is unique to the computer arts, as is the solution it provides—storing relational
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`information in a single table for digital reconstruction. See Enfish, 822 F.3d at 1332–33.
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`
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`In contrast, even a 1916 librarian or shopkeeper would easily recognize the abstract
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`solutions offered by Uniloc’s purported inventions: centralized distribution and management of
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`products and information. He would recognize the problems identified in the patents, e.g., lack of
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`geographic uniformity for customers and demand for customization of products. And he would
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`be able to see how the proposed solutions, e.g., two-tiered customization, centralization, and “on-
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`demand” distribution, would provide the same benefits in conventional environments.
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`
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`Our hypothetical librarian/shopkeeper would also fail to grasp the benefits of placing an
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`individualized filtering tool on an Internet Service Provider server in a network (the invention in
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`Bascom) since those benefits made sense only in comparison to the internet-based filtering
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`schemes known at the time. See Bascom, 827 F.3d at 1350. In Bascom, the “ordered
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`combination” of the claimed generic components (a client computer, a remote server, computer
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`networks, and filtering software) held an inventive step because it provided more dynamic and
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`efficient filtering than the combinations of those elements known in the networking arts. Id. at
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`1349-1351. Here, in contrast, the order of Uniloc’s claim steps results in wholly predictable
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`improvements, because they reflect the conventional steps taken for centralized distribution of
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`products and information. Benefits like geographic flexibility, uniformity, and decreased
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`delivery costs through automation, are not hallmarks of an inventive technology. (Opp. at 1-2.)
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`Thus, unlike in Bascom the order of Uniloc’s claim steps cannot save its claims from abstraction.
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`
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`Uniloc relies on DDR Holdings to argue that an invention resolving a problem “specific
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`to the Internet” renders otherwise-abstract claims patent eligible. (Id. at 26.) But this is precisely
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`the test which Uniloc’s patents fail. The patents in DDR Holdings involved keeping users
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`engaged at a website by creating host webpages that resembled third-party vendor pages, thereby
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`preventing users from leaving for the third-party’s site. 773 F.3d at 1257-58. This overrode the
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`“routine and conventional sequence of events” that would otherwise occur on the internet. 773
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`F.3d at 1258. The claimed sequence of operations produced an unconventional result even when
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`applied to generic hardware. By comparison, Uniloc’s patents apply well-known methods for
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`distributing products and information with unsurprising consequences. Far from being “specific
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`to the Internet,” Uniloc’s methods are not even specific to computers, so their technological
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`elements, whether taken individually or as an ordered combination, lend no patentable weight.
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`
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`In the end, Uniloc’s patent claims are more like the claims to migrating computer
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`preferences in Tranxition: automations of computer-based tasks which could be performed
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`manually to achieve like results. See Tranxition, 2015 WL 4203469, at *13. As that court aptly
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`noted when deeming those claims abstract, while “the problem of transferring user settings from
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`one computer to another did not arise until computers were invented,” and while the claims
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`Case 2:16-cv-00741-RWS Document 88 Filed 11/21/16 Page 10 of 16 PageID #: 955
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`“necessarily require[d] a ‘source computing system’ and a ‘targeting computing system,’” the
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`nature of the claimed process was “a human one” and thus unpatentable. Id. The Tranxition
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`decision was just affirmed, see Tranxition, Inc. v. Lenovo (U.S.) Inc., 2015-1907, 2016 WL
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`6775967 (Fed. Cir. Nov. 16, 2016), and its reasoning compels dismissal of the instant action.
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`II.
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`EVEN UNDER UNILOC’S PROPOSED “CONSTRUCTIONS,” ITS CLAIMS
`ARE UNPATENTABLE
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`
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`Uniloc argues that motions to dismiss are generally disfavored in the Fifth Circuit and
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`that claim construction will be necessary to resolve the validity of the patents-in-suit. (Opp. at 6,
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`11.) But Judges in this district have dismissed infringement actions on the pleadings where, even
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`under a patentee’s proposed constructions, the claims remained directed to ineligible subject
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`matter. See, e.g., Pres. Wellness Techs. LLC v. Allscripts Healthcare Sols., 2:15-CV-1559-WCB,
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`2016 WL 2742379, at *7 (E.D. Tex. May 9, 2016); Rothschild Location Techs. LLC v. Geotab
`
`USA, Inc., 6:15-cv-682-RWS-JDL, 2016 WL 3584195, at *4 (E.D. Tex. Jan. 4, 2016). Such is
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`the case here. The definitions and “constructions” Uniloc proposes in its brief merely specify
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`particular data to be manipulated by its methods, or particular computer environments in which
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`to apply those methods. Even under these constructions, the patents still address problems known
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`outside the computer arts, using solutions known outside the computer arts, to achieve benefits
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`known outside the computer arts. Therefore, they claim unpatentable subject matter.
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`
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`The method claimed in the ’766 Patent is analogous to a centralized librarian tracking
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`lending permissions for remote libraries. (Mot. at 19–21.) The ’766 Patent applies this concept to
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`computers and claims a centralized server which tracks licensing permissions for client systems.
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`Uniloc says that the claimed “license management policy information” has a special meaning:
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`“license use . . . managed by setting certain policies, such as the limit of the number of users,
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`whether crossing the limit of users is allowed or not and how users are counted.” (Opp. at 19
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`(alteration in original).) But, like Uniloc’s server, a librarian also controls the use of materials by
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`“setting certain policies” including the exemplary policies in Uniloc’s construction, limiting the
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`number of copies that can be loaned and deciding whether academic and conventional borrowers
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`are to be counted identically under license terms. Thus Uniloc is wrong when it asserts that the
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`’766 Patent is “inherently electronic.” (Id.) To the contrary, the license management method it
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`discloses has been performed by human beings for years.
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`
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`The ’293 Patent’s method is also like a librarian’s task, namely, application of a logical
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`system for shelving and distributing books to remote guests on-demand. (Mot. at 16–19.) The
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`’293 Patent correspondingly claims a server that applies a logical system of directories and files
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`to distribute programs to remote users on-demand. Uniloc says that the claimed “segment
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`configured to initiate registration operations” must be understood to include a “variable field,” an
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`“import data file,” a “call to an import program,” and a “profile manager import call.” (Opp. at
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`17.) Many of these are improper claim constructions, as they import e.g. limitations from
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`(unasserted) dependent claims 3 and 6 into independent claim 1. See VirnetX, Inc. v. Cisco Sys.,
`
`Inc., 767 F.3d 1308, 1316-17 (Fed. Cir. 2014). But even adopting arguendo Uniloc’s limitations,
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`any indexing system (whether for library books or computer files) will have “fields” to specify
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`sources and destinations, “data files” e.g., for recordkeeping, and “calls” (i.e., programmed
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`instructions) such as shelving instructions to be performed under certain conditions.
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`
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`The ’466 Patent’s method is like a vendor providing, upon customer request, order forms
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`that list only products for which the customer is authorized, and then providing the ordered
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`products. (Mot. at 14–16.) Uniloc claims this method in the form of a user who logs in, views a
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`menu of authorized applications, selects a program, and receives it. Uniloc proposes a
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`construction requiring that, before delivering a program, the server ensures the program is
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`“adapted to the type of hardware and/or operating system from which a user requests execution.”
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`(Opp. at 14.) But this is not a patentable distinction, as vendors know better than to include
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`Japanese instructions with products sent to French-speaking customers, or to provide Chevrolet
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`parts to a known Ford owner. Ensuring that customers and clients receive context-appropriate
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`products was a well-known business practice long before IBM applied it to software.
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`
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`Finally, the ’578 Patent’s method is like a vendor who first collects preferences for both
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`customers and their supervisors and then applies both from at a central location when distributing
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`products. (Mot. at 9–14.) Uniloc uses this method at a centralized server to collect preferences
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`for users and their administrators and apply them before distributing software. Uniloc insists that
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`its “configurable preferences” are more than the conventional preferences used by suppliers to
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`customize their services.1 (Opp. at 11.) But the infringement contentions recently served by
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`Uniloc on ADP belie the notion that the claimed “preferences” are any different from customer
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`preferences used by a vendor. There, Uniloc points to a user ID, name, address, and contact
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`number as “preferences,” all pieces of data which a brick-and-mortar vendor could use to
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`customize products. See Ex. 1 (Excerpt of Infringement Contentions, ’578 Patent, at 16).2
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`
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`Uniloc also urges the Court to adopt a saving construction for the ’578 Patent’s
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`“application launcher program.” (Opp. at 29.) But the construction Uniloc proposes is
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`remarkably broad: an “entire program . . . or . . . merely a portion thereof,” which “may only
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`include a URL and an associated ICON,” to “allow obtaining of user identification and password
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`information.” (Id.) While this terminology comes from the computer arts, it is the computer
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`equivalent of the top line of a vendor’s order form—e.g., entry blanks for a name and purchase
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`1 Oddly, Uniloc relies on an unrelated patent for its proposed construction.
`2 This Court has previously considered a patentee’s infringement contentions when resolving a
`Motion to Dismiss under Section 101. See Clear with Computers LLC v. Altec Indus., No. 6:14-
`cv-79, 2015 WL 993392, at *1–*2 (E.D. Tex. Mar. 3, 2015).
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`order number—and nothing more. Finally, while Uniloc touts the “reduced costs and increased
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`uniformity” its method provides, (Id. at 25), those are the same benefits provided by centrally
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`applying tiered customer preferences when distributing brick-and-mortar products.
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`
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`As Uniloc has identified no constructions which affect the patentability of its independent
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`or dependent claims, dismissal of this action on the pleadings is appropriate.
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`III. THE DISTRICT COURT CASES CITED BY UNILOC ARE DISTINGUISHABLE
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`
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`Because Uniloc’s patents bring conventional efficiencies to computers, their claims are
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`not patentable and Perdiemco, LLC is inapposite. Perdiemco, LLC v. Industrack LLC, 2:15-cv-
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`727-JRG-RSP, 2016 U.S. Dist. LEXIS 135667 (E.D. Tex. Sept. 21, 2016). Perdiemco involved a
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`Section 101 challenge in which the challenger both improperly “strip[ped] away” computer
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`limitations from the patentee’s claims and then failed to address computer-based improvements
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`worked by those claims. Id. at *19-22. Here, the abstract nature of Uniloc’s patents is apparent
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`with no need to subtract the computer elements. Uniloc’s patents undoubtedly involve a
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`networked distribution of applications and licenses among clients and servers, but are “directed
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`to a result or effect that itself is the abstract idea and merely invoke generic processes and
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`machinery.” Id. at *17 (quoting McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299,
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`1314 (Fed. Cir. 2016)) (emphasis added). The software and licenses distributed and managed in
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`Uniloc’s patents are computer-based, but ADP has shown in its Motion that how those elements
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`are managed and what results are attained are inherently abstract. Further, the patent challenger
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`in Perdiemco proposed a faulty analogy which failed to capture a key “centralization” feature of
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`the challenged claims. In contrast, each of ADP’s analogies recognizes the centralization of the
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`patented methods, a point Uniloc acknowledges. (See Opp. at 22 (recognizing the “central
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`library” in ADP’s analogy).) As ADP has shown, however, Uniloc’s centralization produces the
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`same benefits as brick-and-mortar distribution, and so lends no weight to Uniloc’s claims.
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`Case 2:16-cv-00741-RWS Document 88 Filed 11/21/16 Page 14 of 16 PageID #: 959
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`
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`The other District Court cases on which Uniloc relies are equally distinguishable. This
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`Court denied summary judgment in Core Wireless Licensing S.a.r.l. v. LG Elecs., Inc. at least
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`because the movant failed to meet its burden when it identified no conventional analogues for the
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`claimed “application,” “summary window,” and “unlaunched state.” 2:14-cv-911-JRG-RSP,
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`2016 U.S. Dist. LEXIS 35663, at *11–12 (E.D. Tex. Mar. 20, 2016). Here, ADP has identified
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`analogues for all the computer-bound elements in Uniloc’s claims, and shown how their
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`collective operation is no different from brick-and mortar-examples. Likewise, Genband US LLC
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`v. Metaswitch Networks Ltd. does not apply here, because there the claimed operations were
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`“meaningless outside the context of a computer network,” while Uniloc’s methods are just as
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`advantageous when applied outside of computer environments. No. 2:14-cv-33-JRG, 2016 U.S.
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`Dist. LEXIS 134659, at *108 (E.D. Tex. Sept. 29, 2016). Finally, in JDS Techs., Inc. v. Exacq
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`Techs., the court refused to invalidate patents directed to a “particular concrete application” for
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`controlling when and how software could be used on multiple devices—a problem and solution
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`arising only with the advent of digital copying. No. 15-10387, 2016 U.S. Dist. LEXIS 73622 at
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`*18–19 (E.D. Mich. June 7, 2016). In contrast, Uniloc’s patents treat application programs like
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`products and file packets like catalog cards, and thus cover “‘fundamental practice[s]’ previously
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`practiced” by librarians and vendors. Id. at *19. The methods are the same, and the resulting
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`efficiencies are the same. Accordingly, Uniloc’s claims are unpatentable.
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`IV. ADP’S CHALLENGE TO ALL CLAIMS IS APPROPRIATE
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`Uniloc relies on 800 Adept, Inc. v. Murex Sec. Ltd., 539 F.3d 1354 (Fed. Cir. 2008) to
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`argue that ADP may not challenge Uniloc’s unasserted claims. (Opp. at 2 n.1.) But that case
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`stands instead for the unremarkable proposition that a district court may not invalidate claims
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`which were never addressed by the parties at any stage of a case. Id. at 1367-68. That case did
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`not involve a challenge under 35 U.S.C. § 101, but rather a trial on prior art invalidity in which
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`Case 2:16-cv-00741-RWS Document 88 Filed 11/21/16 Page 15 of 16 PageID #: 960
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`expert analyses, pretrial statement, and even the initial pleadings were all limited to a claim
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`subset, affording the patent owner no fair opportunity to defend its other claims. Id. at 1367–68.
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`By contrast, ADP has placed Uniloc on notice of a challenge to all claims from its first pleading.
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`Moreover, Uniloc’s own complaint alleges that ADP has infringed “one or more claims”
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`of each patent-in-suit, “including at least” its identified claims. (D.I. 1 at ¶¶ 27, 38, 49, 60
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`(emphasis added).) Uniloc has thus placed all of its claims at issue in this suit, and may not now
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`“employ artful pleading to evade judicial review.” A Pty Ltd. v. Ebay, Inc., 1:15-cv-155-RP, Oct.
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`8, 2015 Order at *4 (W.D. Tex.) (slip op. provided as Exhibit 2) (denying argument that Court
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`lacked jurisdiction to decide subject matter validity of claims not enumerated in complaint) (all
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`claims later found unpatentable at 149 F. Supp. 3d 739 (W.D. Tex. Feb. 29, 2016)).
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`V.
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`UNILOC INADEQUATELY PLEADS INFRINGEMENT OF THE 293 PATENT
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`Uniloc contends without support that pointing to “backend server architecture” in its
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`complaint is sufficient to claim infringement of the ’293 Patent, whose claims plainly require
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`multiple servers. Yet such allegations simply fail to put ADP on notice of which of its many
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`“backend” servers is accused. Uniloc’s infringement contentions fail to remedy this deficiency,
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`asserting that “ADP servers . . . perform[ ] each of the claimed steps” of the ’293 Patent, but only
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`pointing generically to “Nginx” and “Apache” web servers as meeting critical claim limitations
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`without identifying particular servers controlled by ADP. See Ex. 3 (Excerpt of Infringement
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`Contentions, ’293 Patent, at 2, 5). Without minimal notice of Uniloc’s infringement theory, ADP
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`has been unable to-date to meaningfully address the claim. Important legal liabilities attach to the
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`notice provided in an infringement complaint, so where such notice is plainly deficient, dismissal
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`is required. See Realtime Data, LLC v. Stanley, 721 F. Supp. 2d 538, 543 (E.D. Tex. 2010).
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`VI. CONCLUSION
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`For the reasons above, the complaint should be dismissed under Fed. R. Civ. P. 12(b)(6).
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`Case 2:16-cv-00741-RWS Document 88 Filed 11/21/16 Page 16 of 16 PageID #: 961
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`Dated: November 21, 2016
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`Respectfully submitted,
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`s/ Matthew J. Moffa
`William J. McCabe
`E-Mail: WMcCabe@perkinscoie.com
`Matthew J. Moffa
`E-Mail: MMoffa@perkinscoie.com
`PERKINS COIE LLP
`30 Rockefeller Plaza, 22nd Floor
`New York, NY 10112-0085
`Telephone: (212) 262-6900
`Facsimile: (212) 977-1649
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`Michael E. Jones
`Texas Bar No.: 10929400
`E-Mail: mikejones@potterminton.com
`POTTER MINTON, PC
`110 North College Suite 500
`Tyler, TX 75702
`Telephone: (903) 597-8311
`Facsimile: (903) 593-0846
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`Attorneys for Defendant ADP, LLC
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies 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 Court’s
`CM/ECF system per Local Rule CV-5(a)(3) on November 21, 2016.
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`/s/ Matthew J. Moffa
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