`R2 Solutions LLC,
`
` Plaintiff,
`
`v.
`
`
`7-Eleven, Inc.,
`
` Defendant.
`
`
`Civil Action No. 3:22-cv-02868
`
`Jury Trial Demanded
`
`
`
`
`
`
`
`Case 3:22-cv-02868-S Document 21 Filed 03/17/23 Page 1 of 30 PageID 354
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
`
`
`
`
`
`
`
`
`
`
`
`PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT 7-ELEVEN, INC.’S
`MOTION TO DISMISS UNDER RULE 12(B)(6)
`
`
`
`
`

`

`Case 3:22-cv-02868-S Document 21 Filed 03/17/23 Page 2 of 30 PageID 355
`
`TABLE OF CONTENTS
`
`
`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`
`
`
`FACTUAL BACKGROUND ............................................................................................. 1
`
`LEGAL STANDARD ......................................................................................................... 1
`
`ARGUMENT ...................................................................................................................... 4
`
`The claims of ’157 patent are patent-eligible. .............................................................. 5
`
`The claims of ’157 patent are not directed to an abstract idea. ............................... 6
`
`The claims of the ’157 patent contain inventive concepts. ..................................... 8
`
`7-Eleven has failed to establish that claim 1 is representative.............................. 10
`
`The claims of ’329 patent are patent-eligible. ............................................................ 11
`
`The claims of ’329 patent are not directed to an abstract idea. ............................. 12
`
`The claims of the ’329 patent contain inventive concepts. ................................... 14
`
`7-Eleven has failed to establish that claim 1 is representative.............................. 15
`
`The claims of ’317 patent are patent-eligible. ............................................................ 15
`
`The claims of ’317 patent are not directed to an abstract idea. ............................. 16
`
`The claims of the ’317 patent contain inventive concepts. ................................... 18
`
`7-Eleven has failed to establish that claim 1 is representative.............................. 20
`
`The claims of ’097 patent are patent-eligible. ............................................................ 20
`
`The claims of ’097 patent are not directed to an abstract idea. ............................. 21
`
`The claims of the ’097 patent contain inventive concepts. ................................... 23
`
`7-Eleven has failed to establish that claim 1 is representative.............................. 24
`
`CLAIM CONSTRUCTION DISPUTES PRECLUDE DISMISSAL .............................. 25
`
`CONCLUSION ................................................................................................................. 25
`
`A.
`
`1.
`
`2.
`
`3.
`
`B.
`
`1.
`
`2.
`
`3.
`
`C.
`
`1.
`
`2.
`
`3.
`
`D.
`
`1.
`
`2.
`
`3.
`
`ii
`
`
`

`

`Case 3:22-cv-02868-S Document 21 Filed 03/17/23 Page 3 of 30 PageID 356
`
`
`
`
`
`
`
`TABLE OF AUTHORITIES
`
`
`
`
`
`
`
`
`
`
`
`Cases:
`
`Aatrix Software, Inc. v. Green Shades Software, Inc.,
` 882 F.3d 1121 (Fed. Cir. 2018)............................................................................................... 1, 9
`
`
` Page(s):
`
`Alice Corp. Pty. Ltd. v. CLS Bank Int’l,
` 573 U.S. 208 (2014) ........................................................................................................... passim
`
`BASCOM Global Internet Servs. v. AT&T Mobility LLC,
` 827 F.3d 1341 (Fed. Cir. 2016).......................................................................................... passim
`
`
`Berkheimer v. HP Inc.,
` 881 F.3d 1360 (Fed. Cir. 2018)........................................................................................... 3, 4, 9
`
`
`Bilski v. Kappos,
` 561 U.S. 593 (2010) ........................................................................................................ 2, 13, 14
`
`Blackbird Tech LLC v. Advanced Discovery Inc.,
` No. 16-413-GMS, 2017 U.S. Dist. LEXIS 98045 (D. Del. June 26, 2017) ........................... 8, 9
`
`Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A.,
` 776 F.3d 1343 (Fed. Cir. 2014)................................................................................................... 4
`
`Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc.,
` 880 F.3d 1356 (Fed. Cir. 2018)....................................................................................... 2, 22, 23
`
`
`CyberSource Corp. v. Retail Decisions, Inc.,
` 654 F.3d 1366 (Fed. Cir. 2011)................................................................................................. 17
`
`
`Elec. Power Grp., LLC v. Alstom S.A.,
` 830 F.3d 1350 (Fed. Cir. 2016)................................................................................. 3, 13, 18, 23
`
`
`Enfish, LLC v. Microsoft Corp.,
` 822 F.3d 1327 (Fed. Cir. 2016).......................................................................................... passim
`
`
`Gravel Rating Sys., LLC v. McAfee, LLC,
` No. 4:21-cv-259-ALM, 2021 U.S. Dist. LEXIS 219531 (E.D. Tex. Nov. 15, 2021) ........... 1, 11
`
`
`In re TLI Commc’ns Patent Litig.,
` 823 F.3d 607 (Fed. Cir. 2016)..................................................................................................... 3
`
`Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
` 566 U.S. 78 (2012) ............................................................................................................. passim
`
`
`iii
`
`
`

`

`Case 3:22-cv-02868-S Document 21 Filed 03/17/23 Page 4 of 30 PageID 357
`
`McRO, Inc. v. Bandai Namco Games Am. Inc.,
` 837 F.3d 1299 (Fed. Cir. 2016)................................................................................................... 3
`
`
`MyMail, Ltd. v. ooVoo, LLC,
` 934 F.3d 1373 (Fed. Cir. 2019)................................................................................................. 25
`
`
`PPS Data, LLC v. Jack Henry & Assocs.,
` 404 F. Supp. 3d 1021 (E.D. Tex. 2019) .................................................................. 10, 11, 20, 24
`
`
`R2 Solutions LLC v. American Airlines, Inc.,
` Case No. 4:22-cv-00353 (E.D. Tex. Dec. 6, 2022) ........................................................... 1, 8, 25
`
`R2 Solutions LLC v. FedEx Corporate Services, Inc.,
` Case No. 4:21-cv-00940 (E.D. Tex. Apr. 29, 2022) ............................................................... 8, 9
`
`
`R2 Solutions LLC v. Walmart Inc.,
` Case No. 4:21-cv-00091 (E.D. Tex. Jan. 4, 2022) .......................................................... 1, 12, 25
`
`
`Semantic Search Techs. LLC v. Aldo U.S., Inc.,
` 425 F. Supp. 3d 758 (E.D. Tex. 2019) .................................................................................. 9, 10
`
`
`Trading Techs. Int'l, Inc. v. CQG, Inc.,
` 675 F. App’x 1001 (Fed. Cir. 2017) ................................................................................... 22, 23
`
`Two-Way Media Ltd v. Comcast Cable Communs., LLC,
` 874 F.3d 1329 (Fed. Cir. 2017)................................................................................................. 18
`
`
`Visual Memory LLC v. NVIDIA Corp.,
` 867 F.3d 1253 (Fed. Cir. 2017)................................................................................................ 2-3
`
`Rules, Regulations and Statutes:
`
`Fed. R. Civ. P. 12(b)(6)................................................................................................................... 1
`
`35 U.S.C. § 101 ...................................................................................................................... passim
`
`iv
`
`
`

`

`Case 3:22-cv-02868-S Document 21 Filed 03/17/23 Page 5 of 30 PageID 358
`
`I.
`
`FACTUAL BACKGROUND
`
`R2 asserts that 7-Eleven infringes at least claims 1-5 and 7-10 of U.S. Patent No. 8,341,157
`
`(Count I); claims 1, 4-5, 8, and 11-12 of U.S. Patent No. 7,698,329 (Count II); claims 1-2, 8-10,
`
`and 12 of U.S. Patent No. 8,209,317 (Count III); claims 1, 3, 8-10, and 17-20 of U.S. Pat. No.
`
`9,805,097 (Count IV); and claims 1 and 10 of U.S. Patent No. 10,176,272 (Count V). 7-Eleven
`
`moved to dismiss R2’s claims relative to the ’157, ’329, ’317, and ’097 patents (Counts I-IV) on
`
`the basis that they are directed to unpatentable subject matter under 35 U.S.C. § 101. The ’272
`
`patent is unchallenged.
`
`The patents subject to 7-Eleven’s challenge have been, and some continue to be, litigated
`
`before Judge Mazzant in the Eastern District of Texas. Judge Mazzant construed terms of the ’157,
`
`’329, and ’317 patents in, e.g., R2 Solutions LLC v. Walmart Inc., Case No. 4:21-cv-00091, ECF
`
`54 at 52-54 (E.D. Tex. Jan. 4, 2022) (“R2 v. Walmart”). Judge Mazzant also denied a motion to
`
`dismiss asserting that claims of the ’157 and ’329 patents were patent-ineligible, finding the motion
`
`to be premature despite prior claim construction. See R2 Solutions LLC v. American Airlines, Inc.,
`
`Case No. 4:22-cv-00353, ECF 25 (E.D. Tex. Dec. 6, 2022) (“R2 v. AA”).
`
`II.
`
`LEGAL STANDARD
`
`While patent eligibility under 35 U.S.C. § 101 “can be determined at the Rule 12(b)(6)
`
`stage,” “[t]his is true only when there are no factual allegations that, taken as true, prevent
`
`resolving the eligibility question as a matter of law.” Aatrix Software, Inc. v. Green Shades
`
`Software, Inc., 882 F.3d 1121, 1125 (Fed. Cir. 2018). Patents are presumed valid, meaning that
`
`defendants “bear the burden of proving invalidity by clear and convincing evidence, and the burden
`
`never shifts to [plaintiff] to prove validity.” Gravel Rating Sys., LLC v. McAfee, LLC, No. 4:21-
`
`cv-259-ALM, 2021 U.S. Dist. LEXIS 219531, at *13 (E.D. Tex. Nov. 15, 2021).
`
`1
`
`
`

`

`Case 3:22-cv-02868-S Document 21 Filed 03/17/23 Page 6 of 30 PageID 359
`
`Section 101 defines the scope of patent-eligible subject matter as “any new and useful
`
`process, machine, manufacture, or composition of matter, or any new and useful improvement
`
`thereof.” 35 U.S.C. § 101. Despite this expansive scope of patent-eligible subject matter, the
`
`Supreme Court has long recognized three narrow exceptions: laws of nature, natural phenomena,
`
`and, purportedly relevant here, abstract ideas. Bilski v. Kappos, 561 U.S. 593, 601-02 (2010). The
`
`Supreme Court has never provided clear guidance as to what constitutes an “abstract idea,” but it
`
`has reiterated its reluctance to broadly apply these three narrow exceptions: “[W]e tread carefully
`
`in construing this exclusionary principle, lest it swallow all of patent law.” Alice Corp. Pty. Ltd. v.
`
`CLS Bank Int’l, 573 U.S. 208, 217 (2014). “At some level, ‘all inventions . . . embody, use, reflect,
`
`rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Id. (alteration in original).
`
`The Supreme Court has set forth a two-step analysis to determine if a claim is patent
`
`eligible: (1) “determine whether the claims at issue are directed to a patent-ineligible concept,”
`
`and “[i]f this threshold determination is met,” (2) “consider the elements of each claim both
`
`individually and ‘as an ordered combination’ to determine whether the additional elements
`
`‘transform the nature of the claim’ into a patent-eligible application.” Enfish, LLC v. Microsoft
`
`Corp., 822 F.3d 1327, 1334 (Fed. Cir. 2016) (citing Alice, 573 U.S. at 217). “If the claims are
`
`directed to a patent-eligible concept, the claims satisfy § 101 and [courts] need not proceed to the
`
`second step.” Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356, 1361 (Fed. Cir.
`
`2018). In performing the Alice analysis, courts regularly look to the patent specification for
`
`guidance, finding that recited benefits of claimed inventions and recognition of shortcomings in
`
`the prior art can emphasize that a claim is “directed to an improvement of an existing technology”
`
`or otherwise embodies patent-eligible concepts. Enfish, 822 F.3d at 1337; see also Visual Memory
`
`2
`
`
`

`

`Case 3:22-cv-02868-S Document 21 Filed 03/17/23 Page 7 of 30 PageID 360
`
`LLC v. NVIDIA Corp., 867 F.3d 1253, 1259-60 (Fed. Cir. 2017) (finding asserted claims to be
`
`patent-eligible in light of benefits discussed in the specification).
`
`The first step of the Alice analysis “is a meaningful one, sometimes ending the § 101
`
`inquiry.” Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (citing Alice,
`
`573 U.S. at 217); see also Enfish 822 F.3d at 1335. “[C]ourts ‘must be careful to avoid
`
`oversimplifying the claims’ by looking at them generally and failing to account for the specific
`
`requirements of the claims.” McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1313
`
`(Fed. Cir. 2016) (quoting In re TLI Commc’ns Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016)).
`
`Even at step one, “a court must look to the claims as an ordered combination, without ignoring the
`
`requirement of the individual steps.” Id. at 1313.
`
`The Federal Circuit has expressly rejected the contention that “all improvements in
`
`computer-related technology are inherently abstract and, therefore, must be considered at step
`
`two.” Enfish, 822 F.3d at 1335 (Fed. Cir. 2016). The relevant question at step one for software
`
`claims is whether the “focus of the claims is on the specific asserted improvement in computer
`
`capabilities” as opposed to “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.
`
`If the claim at issue fails step one, courts proceed to step two, which “consider[s] the
`
`elements of each claim both individually and ‘as an ordered combination’ to determine whether
`
`the additional elements ‘transform the nature of the claim’ into a patent-eligible application.” Alice,
`
`573 U.S. at 217 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 78-
`
`79 (2012)). “The second step of the Alice test is satisfied when the claim limitations ‘involve more
`
`than performance of well-understood, routine, [and] conventional activities previously known to
`
`the industry.’” Berkheimer v. HP Inc., 881 F.3d 1360, 1367 (Fed. Cir. 2018) (alteration in original)
`
`3
`
`
`

`

`Case 3:22-cv-02868-S Document 21 Filed 03/17/23 Page 8 of 30 PageID 361
`
`(quoting Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A., 776 F.3d 1343, 1347-
`
`48 (Fed. Cir. 2014)). “[A]n inventive concept can be found in the non-conventional and non-
`
`generic arrangement of known, conventional pieces.” BASCOM Global Internet Servs. v. AT&T
`
`Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016). “The question of whether a claim element or
`
`combination of elements is well-understood, routine and conventional to a skilled artisan in the
`
`relevant field is a question of fact” that must be “proven by clear and convincing evidence.”
`
`Berkheimer, 881 F.3d at 1368. Just like step one, whether an invention recites a specific
`
`improvement to computer technology is relevant, and claims that “recite a specific, discrete
`
`implementation of the abstract idea” are patent eligible. BASCOM, 827 F.3d at 1350.
`
`III. ARGUMENT
`
`7-Eleven fails to establish than any of the challenged claims are patent-ineligible. At their
`
`core, 7-Eleven’s arguments are nothing more than incorrect (and premature) claim constructions
`
`contrived to eliminate key technical features of the claims and devolve each claim into an abstract
`
`idea. Indeed, the centerpiece of 7-Eleven’s argument for each patent is a table that breaks up one
`
`claim into its limitations and purports to provide “a corresponding restatement for each limitation
`
`that reflects the broad, general nature of each claim.”1 See ECF 11 at 10-11, 14, 17, 21. But these
`
`“restatements” are the epitome of overgeneralization—they ignore significant claim limitations
`
`and otherwise distort the claims beyond recognition. 7-Eleven’s strategy runs headlong into the
`
`Supreme Court’s caution to interpret the abstract-ideas exception to patent-eligibility narrowly
`
`“lest it swallow all of patent law.” Alice, 573 U.S. at 217 (2014).
`
`
`
`1 As discussed below, the claim construction issues raised by 7-Eleven’s motion, by themselves,
`preclude dismissal at this stage.
`
`4
`
`
`

`

`Case 3:22-cv-02868-S Document 21 Filed 03/17/23 Page 9 of 30 PageID 362
`
`Nevertheless, 7-Eleven fails to show that the challenged claims are invalid under 35 U.S.C.
`
`§ 101. Each challenged claim is directed to patent-eligible subject matter because it is directed to
`
`a specific technological advancement in computer technology, and, thus, passes step 1 of the Alice
`
`analysis. At the very least, each claim involves more than performance of well-understood, routine,
`
`and conventional activities, and, thus, passes step 2.
`
`A.
`
`The claims of ’157 patent are patent-eligible.
`
`The ’157 patent is directed to an improvement in search engine technology. The
`
`specification explains that traditional, prior art search engines “simply regard[] a web query as, for
`
`example, a ‘bag of words’” meaning that they would “search for web pages and other data objects
`
`(e.g., images, audio files, and text files) that contain, or are otherwise associated with, the
`
`individual words within the query.” ’157 pat., 4:1-5. The search engine would then “employ[]
`
`additional techniques known in the art to more narrowly tailor search results and may additionally
`
`employ sophisticated algorithms to rank search results.” Id. at 4:5-8. The ’157 patent explains that
`
`the results provided by such a search engine can be difficult to sift through because each result
`
`generally includes only limited information, such as a non-descript title, abstract, and link. Id. at
`
`4:10-15. And because traditional search engines relied on matching words within a query, results
`
`could be far afield from the purpose of the user’s search and, further, be difficult to use. See, e.g.,
`
`ECF 1, ¶ 18.
`
`To address these issues, the ’157 patent describes and claims a novel “intents”-driven
`
`process and accompanying programming architecture. By determining a plurality of “intents” from
`
`a query keyword, the search engine can assign various “intents” to data objects obtained from the
`
`query to rank documents returned by the search and build search results that are customized based
`
`on the assigned “intent.” Id., ¶¶ 19-20. This enables not only enhanced result ranking, but further
`
`facilitates data object display entry customization to achieve specifically-engineered entries,
`5
`
`
`

`

`Case 3:22-cv-02868-S Document 21 Filed 03/17/23 Page 10 of 30 PageID 363
`
`realizing an enhanced search engine process that is more useful to users. See id., ¶ 22. Such an
`
`invention passes muster under both steps 1 and 2 of the Alice test.
`
`1.
`
`The claims of ’157 patent are not directed to an abstract idea.
`
`The claims of the ’157 patent are not directed to an abstract idea. They are instead directed
`
`to specific technological advancements in search engine applications. The “‘intents’-driven search
`
`engine process” of the ’157 patent ensures that “query keywords, via the ‘intents,’
`
`can . . . ultimately impact how particular data objects are constructed within a result. This provides
`
`an added benefit of enabling keywords to be utilized for more than just relevancy analysis.” Id.
`
`Claim 1 includes several technical features that accomplish these benefits. For example, it requires
`
`a “plurality” of pre-programmed “intents” that are determinable “from the at least one keyword,”
`
`“each of the plurality of intents indicat[ing] a type of information regarding the query keyword,”
`
`“classifying the query” into at least one “intent,” “assigning” at least one “intent” to at least “some
`
`of the plurality of data objects” identified from the keyword, and “building a result” including “at
`
`least one display entry customized to a respective assigned intent” “constructed” for each “data
`
`object.” Such “specific asserted improvements in computer capabilities” and/or to “an existing
`
`technological process” are not directed to abstract ideas and are patent-eligible. Enfish, 822 F.3d
`
`at 1335-36.
`
`7-Eleven mischaracterizes and oversimplifies the ’157 patent. It broadly argues that the
`
`’157 patent is “directed to the abstract idea of ranking search results.” ECF 11 at 10. But to get
`
`there, 7-Eleven has to distill each element of claim 1 into a short description. For example, 7-
`
`Eleven equates “determining . . . a plurality of intents from the at least one keyword, each of the
`
`plurality of intents indicates a type of information regarding the query keyword that is likely to be
`
`desired by a user submitting the query” with “[d]etermining the intended topics sought by the
`
`keyword.” Id. at 11. But “intents” are not just “topics sought.” “Intents” are “determin[ed]” and
`6
`
`
`

`

`Case 3:22-cv-02868-S Document 21 Filed 03/17/23 Page 11 of 30 PageID 364
`
`“assign[ed]” by the “computing device,” and thus are pre-programmed in the search engine and
`
`“indicate[] a type of information regarding the query keyword that is likely to be desired by a
`
`user.” ’157 pat., cl. 1. These pre-programmed “intents” are used by the programming architecture
`
`in further technical steps, including classification of the query, assigning of data objects, and
`
`“building a result.” See id. 7-Eleven’s mischaracterization culminates in the next-to-last limitation
`
`of claim 1: 7-Eleven argues that “building a result, using the at least one computing device, using
`
`the ranked plurality of data objects, the result comprises a plurality of display entries, wherein at
`
`least one display entry customized to a respective assigned intent is constructed for each of the
`
`ranked plurality of data objects” is simply “[d]isplaying the search results based on the rankings
`
`and topics sought.” ECF 11 at 11. 7-Eleven ignores all of the preceding limitations that describe
`
`intents, how they are assigned, and how results are ranked.
`
`Based on its gross oversimplification of the ’157 patent, 7-Eleven likens the patent to
`
`“organized human activity, one similar to everyday concepts such as classified advertising and
`
`library indexes.” Id. at 11. But this ignores that the claimed functionality in the ’157 patent is
`
`inherently computer-based. The claims are filled with limitations that exist and occur only within
`
`computers, such as “query token,” “analyzing the query, using at least one computing device, to
`
`identify at least one a query keyword,” using the query keyword to determine a “plurality of
`
`intents” (which are, again, specific programming elements), “assigning” at least one intent to “at
`
`least some of the plurality of data objects,” and “construct[ing]” a “display entry customized to a
`
`respective assigned intent” for “each of the ranked plurality of data objects.” See, e.g., ECF 1, ¶¶
`
`19-23. This “intents”-driven process is necessarily computer-focused, at least because “intents,”
`
`per the specification, are discrete programming elements with specific characteristics that drive an
`
`improved search engine architecture. See id.; see also, ’157 pat., 9:42-61.
`
`7
`
`
`

`

`Case 3:22-cv-02868-S Document 21 Filed 03/17/23 Page 12 of 30 PageID 365
`
`The Blackbird case2 relied upon by 7-Eleven is inapposite. In Blackbird, the court found
`
`that the claims were directed only to conducting a search with a query, determining a concept, and
`
`“ranking the search results based on which documents are most relevant to that concept.” Blackbird
`
`Tech LLC v. Advanced Discovery Inc., No. 16-413-GMS, 2017 U.S. Dist. LEXIS 98045, at *10
`
`(D. Del. June 26, 2017). The ’157 patent goes far beyond the claim there, instead describing an
`
`“‘intents’-driven search engine process” that “ensures that query keywords, via the ‘intents,’ can
`
`even ultimately impact how particular data objects are constructed within a result,” which
`
`“provides an added benefit of enabling keywords to be utilized for more than just relevancy
`
`analysis.” ECF 1, ¶ 20. Thus, the ’157 patent’s “intents” are different from the “concepts associated
`
`with a search query” in Blackbird.
`
`2.
`
`The claims of the ’157 patent contain inventive concepts.
`
`Even if the Court determines that the claims of the ’157 patent are directed to an abstract
`
`idea, the Court should deny 7-Eleven’s motion because the claims contain “additional elements
`
`[that] ‘transform the nature of the claim’ into a patent-eligible application.” Alice, 573 U.S. at 217
`
`(quoting Mayo, 566 U.S. at 78, 79). The claims of the ’157 patent solve a problem “unique” to
`
`search engines. See BASCOM, 827 F.3d at 1351 (explaining that claims that offer “a technical
`
`solution to a problem unique” to a computer are patent eligible). Specifically, as discussed above,
`
`when a search engine has to “simply regard[] a web query as, for example, a ‘bag of words’” (’157
`
`pat., 4:1-5), it can “yield results that do not align with the purpose of the user’s search.
`
`
`
`2 It bears mentioning that the Blackbird case was before Judge Mazzant when he denied
`American Airlines’ motion to dismiss—American Airlines incorporated briefing from a related
`litigation against FedEx that discussed Blackbird at length. See R2 v. AA, ECF 9 at 4; see also R2
`Solutions LLC v. FedEx Corporate Services, Inc., Case No. 4:21-cv-00940, ECF 29 at 10-11
`(E.D. Tex. Apr. 29, 2022).
`
`8
`
`
`

`

`Case 3:22-cv-02868-S Document 21 Filed 03/17/23 Page 13 of 30 PageID 366
`
`Additionally, it can be onerous to scrutinize generated results for a desired returned object, as the
`
`objects can be unremarkable as to each other.” ECF 1, ¶ 18.
`
`The inventions of the ’157 patent solve this problem by using query keywords to call upon
`
`a plurality of pre-programmed “intents” that are used in additional steps in the process. This feature
`
`allows keywords to be used for much more than just document recall. Indeed, according to claim
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`1, query keywords, via the “intents,” ultimately dictate how particular display entries for data
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`objects are “constructed” in building a result. Dependent claims add further features enabled by
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`these pre-programmed intents, such as ranking of search results. See, e.g., ’157 pat., cl. 11. The
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`’157 patent is thus clear that the claims are solving the technical problem posed to existing search
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`engines that stem from the “bag of words” approach and typical result generation. See ECF 1, ¶¶
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`18-23. The claims explicitly provide for how the improved search engine is realized, reciting pre-
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`programmed “intents” and steps that govern how a received query ultimately culminates in
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`construction of customized display entries. Id. Such features constitute unconventional and
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`inventive concepts that impart eligibility. See BASCOM, 827 F.3d at 1351 (explaining that claims
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`that offer “a technical solution to a problem unique” to a computer (e.g., the Internet) are patent
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`eligible). At the very least, whether these claims actually address the “bag of words” and resolve
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`problems faced by search engines (which is specifically explained in the ’157 patent specification)
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`is a fact question that cannot be resolved at the pleadings stage. See Aatrix Software, 882 F.3d at
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`1129-30; Berkheimer, 881 F.3d at 1370.
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`7-Eleven again likens this case to Blackbird, as well as Semantic Search (another case
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`before Judge Mazzant when he denied American’s motion). See R2 v. FedEx, ECF 29 at 17-18.
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`But again, 7-Eleven ignores the actual claim language. Far from “perform[ing] the very same
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`sorting and rankings steps that humans can perform using pen and paper” (Blackbird, 2017 U.S.
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`9
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`Case 3:22-cv-02868-S Document 21 Filed 03/17/23 Page 14 of 30 PageID 367
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`Dist. LEXIS 98045 at *13) or just “having the user ‘iteratively’ select the user’s preferred results”
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`(Semantic Search Techs. LLC v. Aldo U.S., Inc., 425 F. Supp. 3d 758, 776 (E.D. Tex. 2019)), the
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`’157 patent realizes a very specific search engine technology that is a paragon of computer
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`enhancement. As discussed above, the limitations are inherently computer-based because they are
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`offered to solve a problem that only arises in the realm of computer-based searching. The Court
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`should deny 7-Eleven’s Motion.
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`3.
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`7-Eleven has failed to establish that claim 1 is representative.
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`7-Eleven has failed to show that claim 1 of the ’157 patent is representative and thus has,
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`at the very least, failed to show that any claims other than the independent claims are patent-
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`ineligible. While analyzing a representative claim may be appropriate in some circumstances, it is
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`incumbent on 7-Eleven that it “conduct an analysis tethered to the claim language” to show that
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`there are no “legally relevant distinctions between the claim identified as representative and the
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`remaining asserted claims.” PPS Data, LLC v. Jack Henry & Assocs., 404 F. Supp. 3d 1021, 1031
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`(E.D. Tex. 2019). 7-Eleven has not done this. Instead of making arguments that are “tethered to
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`the claim language,” 7-Eleven ignores key limitations of the dependent claims and overgeneralizes
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`the inventive concepts found therein. For example, 7-Eleven alleges that claims 3-5 and 7-10 of
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`the ’157 patent “recite insignificant pre- or post-solution activity.” See ECF 11 at 13. But 7-Eleven
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`never explains how the limitations in those claims qualify as “pre- or post-solution activity” as
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`opposed to solution-centric activity. See id.
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`Regardless, claim 1 of the ’157 patent is not representative of all dependent claims, as each
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`dependent claim adds important limitations. For example, claim 3 requires an “unclassified intent”
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`that is utilized by the programming architecture, claim 4 clarifies a specific mechanism by which
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`a query keyword is identified, claims 5 and 10 add the mechanisms of “linguistic analysis” and
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`“click data” from a previous session (respectively) to the “classifying step” in claim 1, claim 11
`10
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`Case 3:22-cv-02868-S Document 21 Filed 03/17/23 Page 15 of 30 PageID 368
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`requires ranking data objects by intent (a completely novel characteristic because “intents” are
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`novel pre-programmed items), and claim 12 delineates a specific mechanism for display entry
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`construction/customization utilizing “presentation rules” that are “matched against” “data objects
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`to which at least one intent has been assigned.” All of these claims offer limitations of distinctive
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`significance to the alleged representative claims.
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`Because R2 has expressly presented “meaningful argument for the distinctive significance”
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`of limitations in other claims (Gravel Rating Sys., 2021 U.S. Dist. LEXIS 219531 at *6) and
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`“identif[ied] limitations that are present in the asserted claims but that are not represented by the
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`allegedly representative claim” (PPS Data, 404 F. Supp. 3d at 1031-32), the Court should not treat
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`claim 1 of the ’157 patent as representative and should deny the motion as to the dependent claims
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`because 7-Eleven has failed to challenge them.
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`B.
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`The claims of ’329 patent are patent-eligible.
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`Like the ’157 patent, the ’329 patent is directed to advances in search engine technologies
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`that address failings in the art. For example, the specification discusses that traditional search
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`engines generally “rank the documents according to relevance to the search query. Relevance is a
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`measure of how closely the subject matter of a document matches a search query’s terms.” ’329
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`pat., 1:67-2:3. This functionality was problematic—ranking dictated by relevance meant that
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`search engines could be tricked “into recalling documents and inflating their ranking” using
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`techniques known as “search engine spamming.” Id. at 2:6-8. “Search engine spamming” consists
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`essentially of cramming documents full of particular terms as a way to artificially inflate relevance
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`and ultimately “trick search engine ranking algorithms into recalling and highly ranking
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`documents that contain, for example, sponsored links to a web merchant.” Id. at 2:8-11. This
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`technological issue greatly hindered search engine performance, causing search results to include
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`11
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`Case 3:22-cv-02868-S Document 21 Filed 03/17/23 Page 16 of 30 PageID 369
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`irrelevant content that the querier did not desire, and perhaps even subjecting unwary users to
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`malicious behavior. Id. at 2:14-17.
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`To address these issues, the ’329 patent claims an enhanced search engine application that
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`“prevent[s] hiding of search engine spam” while allowing for the “designat[ion] of page cont