Case 3:22-cv-02868-S Document 23 Filed 03/31/23 Page 1 of 15 PageID 412
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
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`R2 SOLUTIONS LLC,
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`Plaintiff,
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`v.
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`7-ELEVEN, INC.,
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`Defendant.
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`Civil Action No. 3:22-cv-02868
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`Jury Trial Demanded
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`DEFENDANT 7- ELEVEN, INC.’S REPLY IN SUPPORT OF ITS
`MOTION TO DISMISS UNDER RULE 12(B)(6)
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`Case 3:22-cv-02868-S Document 23 Filed 03/31/23 Page 2 of 15 PageID 413
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`TABLE OF CONTENTS
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`INTRODUCTION .................................................................................................1
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`
`
`
`I.
`
`II.
`
`ARGUMENT .........................................................................................................1
`
`A.
`
`B.
`
`§ 101 Inquiries Are Properly Raised at the Current Stage .........................1
`
`The claims of the ‘157 patent are not patent-eligible. ...............................2
`
`1.
`
`2.
`
`3.
`
`The claims of the ’157 Patent are directed to an abstract
`idea because it merely recites functional results ............................2
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`The claims of the ’157 Patent fails Alice Step 2 ............................3
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`Claim 1 is representative ................................................................4
`
`C.
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`The claims of ’329 patent are not patent-eligible. .....................................4
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`1.
`
`2.
`
`The claims of ’329 patent fail both steps of the Alice test .............4
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`The ‘329 patent does not address a search engine
`specific problem. ............................................................................5
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`3.
`
`Claim 1 is representative ................................................................6
`
`D.
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`The claims of ’317 patent are not patent-eligible. .....................................6
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`1.
`
`The claims of the ’317 patent fails both steps of the
`Alice test .........................................................................................6
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`2.
`
`Claim 1 is representative ................................................................8
`
`E.
`
`The claims of ’097 patent are not eligible for patent protection ................8
`
`1.
`
`2.
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`The ’097 patent fails both steps of the Alice test ...........................8
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`Claim 1 is representative ..............................................................10
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`III.
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`CONCLUSION ....................................................................................................10
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`i
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`Case 3:22-cv-02868-S Document 23 Filed 03/31/23 Page 3 of 15 PageID 414
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`
`
`Cases
`
`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Aatrix Software, Inc. v. Green Shades Software, Inc.,
`890 F.3d 1354 (Fed. Cir. 2018)..................................................................................................1
`
`BASCOM Global Internet Servs. v. AT&T Mobility LLC,
`827 F.3d 1341 (Fed. Cir. 2016)..............................................................................................3, 8
`
`Broadband iTV, Inc. v. Amazon.com, Inc.,
`No. 6:20-CV-00921-ADA, 2022 WL 4703425 (W.D. Tex. Sept. 30, 2022) ........................3, 4
`
`Cleveland Clinic Found. v. True Health Diagnostics LLC,
`760 F. App’x 1013 (Fed. Cir. 2019) ......................................................................................6, 9
`
`Collarity, Inc. v. Google Inc.,
`No. CV11-1103-MPT, 2015 WL 7597413 (D. Del. Nov. 25, 2015) .....................................6, 9
`
`CyberSource Corp. v. Retail Decisions,
`654 F.3d 1366 (Fed. Cir. 2011)..................................................................................................7
`
`Enfish LLC v. Microsoft Corp.,
`822 F.3d 1327 ............................................................................................................................5
`
`Genetic Techs. Ltd. v. Merial L.L.C.,
`818 F.3d 1369 (Fed. Cir. 2016)..................................................................................................1
`
`Internet Patents v. Active Network, Inc.,
`790 F. 3d 1343 (Fed. Cir. 2015).................................................................................................3
`
`Magnacross LLC v. OKI Data Americas, Inc.,
`No. 3:20-cv-01959-M, 2022 WL 992595 (N.D. Tex. March 31, 2022) ....................................1
`
`Simio, LLC v. Flexsim Software Prods., Inc.,
`983 F.3d 1353 (Fed. Cir. 2020)..................................................................................................4
`
`Trading Techs. Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc.,
`880 F.3d 1356 (Fed. Cir. 2018)..................................................................................................9
`
`Trading Techs. Int’l, Inc. v. CQG, Inc.,
`675 F. App’x 1001 (Fed. Cir. 2017) ..........................................................................................9
`
`Two-Way Media Ltd. v. Comcast Cable Commc’ns., LLC,
`874 F.3d 1329 (Fed. Cir. 2017)..........................................................................................3, 5, 7
`
`ii
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`Case 3:22-cv-02868-S Document 23 Filed 03/31/23 Page 4 of 15 PageID 415
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`
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`Ultramercial, Inc. v. Hulu, LLC,
`772 F.3d 709 (Fed. Cir. 2014) (Mayer, J., concurring) ..........................................................1, 7
`
`Statutes
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`35 U.S.C. § 101 ........................................................................................................................1, 2, 6
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`Other Authorities
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`FED. R. CIV. P. 12 .............................................................................................................................5
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`iii
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`Case 3:22-cv-02868-S Document 23 Filed 03/31/23 Page 5 of 15 PageID 416
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`
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`I.
`
`INTRODUCTION
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`In its Response Brief (Dkt. 21), R2 repeatedly mischaracterizes the Asserted Search Patents.
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`The Asserted Search Patents fail both steps of the Alice test, and should not be eligible for patent
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`protection. R2 also misstates the law by suggesting that claim construction necessarily precludes
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`dismissal, even though 7-Eleven has not raised any claim construction issues, and the lack of
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`eligibility is apparent from the face of the Asserted Search Patents. Therefore, Counts I-IV of the
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`Complaint should be dismissed.
`
`II.
`
`ARGUMENT
`
`A.
`
`§ 101 Inquiries Are Properly Raised at the Current Stage
`
`Contrary to R2’s assertions (Dkt. 21 at p. 25), “[a] district court may resolve issues of §
`
`101 by way of a motion to dismiss.” Magnacross LLC v. OKI Data Americas, Inc., No. 3:20-cv-
`
`01959-M, 2022 WL 992595, at *3 (N.D. Tex. March 31, 2022) (citing Secured Mail Sols. LLC v.
`
`Universal Wilde, Inc., 873 F.3d 905, 912 (Fed. Cir. 2017)). Further, “claim construction is not an
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`inviolable prerequisite to a validity determination under § 101.” Id. (citing Bancorp Servs., L.L.C.
`
`v. Sun Life Assur. Co. of Canada (U.S.), 687 F.3d 1266, 1273 (Fed. Cir. 2012)). Rather, “the § 101
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`inquiry is properly raised at the pleadings stage if it is apparent from the face of the patent that the
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`asserted claims are not directed to eligible subject matter.” See Ultramercial, Inc. v. Hulu, LLC,
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`772 F.3d 709, 718-19 (Fed. Cir. 2014) (Mayer, J., concurring). In fact, in those situations, claim
`
`construction is not required to conduct a § 101 analysis. Genetic Techs. Ltd. v. Merial L.L.C., 818
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`F.3d 1369, 1374 (Fed. Cir. 2016) (“[i]n many cases ... evaluation of a patent claim's subject matter
`
`eligibility under § 101 can proceed even before a formal claim construction”). Because patent
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`eligibility is solely a question of law for the court to decide, a court has the power to make a
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`determination “based solely on the claims and written description.” Aatrix Software, Inc. v. Green
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`Shades Software, Inc., 890 F.3d 1354, 1368 (Fed. Cir. 2018).
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`
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`R2 has not identified any issues that require any inquiry into claim construction. Lack of
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`patent eligibility is clear on the face of the Asserted Search Patents, and 7-Eleven Inc.’s Motion to
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`Dismiss (Dkt. 11, hereinafter “7-Eleven Inc.’s Motion”) can be determined at the pleading stage.
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`The validity of the Asserted Search Patents is a threshold issue, and granting 7-Eleven Inc.’s
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`Motion would avoid litigating clearly invalid patents, thus significantly streamlining the current
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`proceeding and preserving judicial resources.
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`B.
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`The claims of the ‘157 patent are not patent-eligible.
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`1.
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`The claims of the ’157 Patent are directed to an abstract idea because
`it merely recites functional results
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`R2 manufactures the purported technicality of “intents” with attorney argument. The ’157
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`Patent is abundantly clear that these intents are just an abstract mapping of words to a “small set
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`of common goals.” ’157 Patent at 9:45–46. This is a concept about information and knowledge—
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`not computing. R2’s argument that “intents . . . are discrete programming elements” ignores that
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`there is no further technical discussion describing “intents.” Dkt. 21 at p. 7. The ’157 Patent never
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`mentions “discrete programming elements,” let alone describing “intents” as so. See ’157 Patent.
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`R2 similarly asserts that intents are “pre-programmed in the search engine,” even though the
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`specification does not mention anywhere that the intents are “pre-programmed.”
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`USC IP Partnership, L.P. v. Facebook, Inc. is analogous. 576 F. Supp. 3d 446 (W.D. Tex.
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`2021). In USC IP, the patent at issue is related to helping a website visitor “readily identify and
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`navigate to the pages . . . that correspond to the visitor’s intent.” Id. at 451. The court granted
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`summary judgment of invalidity under § 101, finding that the claims were directed to the abstract
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`idea of “collecting, analyzing, and using intent data.” Id. at 456. The court noted that “finding
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`information that matches the user’s intent is a long standing problem that existed long before the
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`advent of computer and is not unique to the Internet.” Id. at 455. Crucially, the court explained
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`2
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`that the claims provided “no explanation of how ‘processing’ steps are performed, or how it causes
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`the intent engine to determine an ‘inferred intent,” and invalidated the asserted patent on this
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`ground. Id. at 455–56. See also Broadband iTV, Inc. v. Amazon.com, Inc., No. 6:20-CV-00921-
`
`ADA, 2022 WL 4703425, at *12 (W.D. Tex. Sept. 30, 2022) (finding claims that “do not explain
`
`how to generate the ranked categories based on usage data [but instead] claim the bare result of
`
`doing so” abstract).
`
`The same applies to the ’157 Patent, which merely recites “determining . . . a plurality of
`
`intents [from keyword(s)],” “assigning” intents to data objects, but provided no explanation of how
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`these steps are performed. See Internet Patents v. Active Network, Inc., 790 F. 3d 1343, 1348 (Fed.
`
`Cir. 2015) (finding claims abstract where “[t]he mechanism …is not described, although this is
`
`stated to be the essential innovation.”). The claim language merely describes the functional results
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`of “determining” intents from keywords, “classifying” the query into “intents,” and “assigning”
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`the intents to the data objects, all of which are performed on generic “computing device.” ’157
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`Patent at claim 1.
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`That the claims must continuously remind the reader to perform the steps on a “computing
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`device” is a tell-tale sign that the asserted claims use a “computing device” only as a tool for
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`performing an abstract idea. R2 therefore wrongly alleges that 7-Eleven Inc. “ignores that the
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`claimed functionality in the ’157 Patent is inherently computer-based.” Dkt. 21 at p. 7.
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`Computerizing an abstract idea with “conventional computer activity” is not enough to make it
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`non-abstract. Two-Way Media Ltd. v. Comcast Cable Commc’ns., LLC, 874 F.3d 1329, 1337 (Fed.
`
`Cir. 2017).
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`2.
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`The claims of the ’157 Patent fails Alice Step 2
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` R2 argues that the ’157 Patent is directed to “solving the technical problem posed to
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`existing search engines,” Dkt. 21 at p. 9, but it does not demonstrate that the problem is uniquely
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`3
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`
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`“technical.” See BASCOM Global Internet Servs. V. AT&T Mobility LLC, 827 F.3d 1341, 1351
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`(Fed. Cir. 2016) (focusing on whether the claims are “a technical solution to a problem unique to
`
`the Internet”). Identifying intent is applicable information search and retrieval beyond the
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`computer realm. Not surprisingly, the patents’ purported field of invention does purport to create
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`a new computer search engine, but only to use it as a tool. The alleged invention use “any
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`conventional search engine technology known in the art, such as, using a bag of words type of
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`match query keywords to data objects.” ’157 Patent at 9:67–10:3. It also acknowledges that it does
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`not purport to advance any ranking algorithm, either, as the data objects can be “ranked using any
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`ranking algorithm known in the art” for at least one embodiment. Id. at 10:4–5. Therefore, the ’157
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`Patent does not provide any “additional features” that elevates the abstract idea beyond Step 2 of
`
`the Alice test.
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`3.
`
`Claim 1 is representative
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`Because all the claims of ’157 Patent are directed to the same abstract idea, adding
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`additional limitations in the dependent claims do not make them non-abstract. R2 merely rattles
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`off what dependent claims recite, but does not identify any way in which the analysis would change
`
`if those claims were investigated more closely. The dependent claims merely add post-solution
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`activity inherent in the chosen environment in which to practice the abstract idea, no different than
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`reciting a “web browser” when performing an abstract idea on the Internet.
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`C.
`
`The claims of ’329 patent are not patent-eligible.
`
`1.
`
`The claims of ’329 patent fail both steps of the Alice test
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`R2 claims that the ‘329 patent contains “specific technological advancements in search
`
`engine technologies,” citing bare allegations in its Complaint. (Dkt. 21 at 12) (quoting Dkt. 1 at
`
`¶ 27).
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`First, the Court’s ineligibility analysis should disregard R2’s boilerplate legal conclusions
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`4
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`
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`when evaluating a complaint. See Simio, LLC v. Flexsim Software Prods., Inc., 983 F.3d 1353,
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`1365 (Fed. Cir. 2020) (“We disregard conclusory statements when evaluating a complaint under
`
`Rule 12(b)(6).”). A statement that a feature merely “improves the functioning and operations of
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`the computer” is, by itself, conclusory. Id.
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`Second, R2’s allegations once again misrepresent the unambiguous text of the patent. The
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`’329 patent does not contain the phrase “data structure” anywhere in it, let alone describe
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`improvements to one. R2 is simply appropriating “data structure” from Enfish in an attempt to
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`create a misplaced analogy. See Enfish LLC v. Microsoft Corp., 822 F.3d 1327, 1338 (finding
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`eligible a “self-referential table” which is a new “data structure designed to improve the way a
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`computer stores and retrieves data in memory”). R2’s alleged “technological improvements” are
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`not supported by the four corners of the patent. In fact, R2 points out that the claimed method can
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`be used on “any unit of information” that a search engine can understand, which is certainly not
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`limiting the patent any new kind of data structure. Dkt. 21 at 12. Therefore the ’329 Patent is
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`directed to an abstract idea ineligible for patent protection.
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`2.
`
`The ‘329 patent does not address a search engine specific problem.
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`R2’s assertion that the ‘329 patent “solves a problem specific to search engines” is attorney
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`argument. Dkt. 21 at 14. Just because a problem arises in computing does not make it “specific”
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`to computing. Receiving irrelevant results when searching for information is a problem
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`encountered all the time. The claimed method is no different than a librarian retrieving a set of
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`requested books based solely upon their title, but then taking a closer look at their contents to
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`determine if any are less relevant for the requester. For example, a librarian may gather all books
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`with “Dallas” in the title, notice that some relate to the TV show, and put those at the bottom of
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`the collection. The functional language used in the ’329 Patent, therefore, does not provide specific
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`5
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`
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`technological improvements in the capabilities of computer search engines. See Two-Way Media
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`Ltd., 874 F.3d at 1337.
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`R2’s recitation of the prosecution history is unpersuasive. Dkt. 21 at 14 (citing Dkt. 22 at
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`14–15). It predates Alice. Fundamentally, “[w]hether a claim is drawn to patent-eligible subject
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`matter under 35 U.S.C. § 101 is a threshold inquiry to be determined as a matter of law [by the
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`district court] in establishing the validity of the patent.” Collarity, Inc. v. Google Inc., No. CV11-
`
`1103-MPT, 2015 WL 7597413, at *11 (D. Del. Nov. 25, 2015). See also Cleveland Clinic Found.
`
`v. True Health Diagnostics LLC, 760 F. App’x 1013, 1020 (Fed. Cir. 2019) (“[W]e are not bound
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`by [the PTO’s] guidance. And, especially regarding the issue of patent eligibility…, we are mindful
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`of the need for consistent application of our case law.”)
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`3.
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`Claim 1 is representative
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`R2 does not identify anything the other claims that change the analysis. That the search
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`engine takes into account sections deemed “no-recall” is simply a restatement of claim 1’s
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`requirement that a section of the documents are “not used by said search engine to recall
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`documents.”
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`D.
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`The claims of ’317 patent are not patent-eligible.
`
`1.
`
`The claims of the ’317 patent fails both steps of the Alice test
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`R2 tries to argue various terms are “computer-focused limitations” and suggest that they
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`“solve problems that only arise in the context of computer systems.” Dkt. 21 at 17. This too is
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`attorney argument. Such “computer-focused limitations” are either generic components used in
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`their conventional purpose (“a database configured to store information about events in the
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`computer database system”), or functional descriptions directed to a desirable end result (“a query
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`reconstruction server . . . to receive a partial query . . . and, in response to the received partial
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`query, determine a full query.”) ’317 Patent at cl. 1. They are not directed to solving any problems
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`6
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`that “only arise in the context of computer systems,” because they are functionally circular
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`descriptors. A “a self-cleaning rug that cleans itself” is not a specific technical invention—it is a
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`desired functional description of a rug, but it does not claim how to solve the problem that
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`conventional rugs do not, in fact, clean themselves. The same is true for “the entire, paragraph-
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`long limitation regarding the query construction server”—it is nothing more than a lengthy,
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`“essentially result-focused, functional” description of what the patentee envisions the “query
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`construction server” can accomplish. Elec. Power Grp., 830 F.3d 1356; see also Dkt. 21 at 17.
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`R2 then asserts that “the essence of the claims requires computer-based features that do not
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`invoke human activity.” Dkt. 21 at 17 (citing CyberSource Corp. v. Retail Decisions, 654 F.3d
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`1366, 1372–73 (Fed. Cir. 2011).) This not only mischaracterizes the ’317 Patent, but also misstates
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`the law. First, the test is not whether the “claim” can be performed “in the human mind,” but
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`whether the process behind the claim—even including the “logic reasoning”—can be performed
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`in the human mind. Cybersource, 654 F.3d at 1373. Here, the very idea to replace a “partial search
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`query” with a “full search query” is one such process that can be performed in the human mind.
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`Similar to the “intents” of the ’157 Patent, this is merely an effort to guess the information
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`researcher’s goal. Second, the ’317 Patent also fails Alice Step 2, because it does not include
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`“additional features” that are “more than well-understood, routine, conventional activity.”
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`Ultramercial, 772 F.3d at 715. In other words, the claimed process is computerized with generic
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`computer equipment used in their “ordinary capacity.” See Two-Way Media, 874 F.3d at 1337
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`(Fed. Cir. 2017). The ’317 Patent fails to provide any specific technological improvements in the
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`capacities of computer technology. R2’s assertion that claim 1 is directed to “allow users to search
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`with limited hardware” is unsupported attorney argument. At best, guessing a researcher’s goal
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`from incomplete information provides a more convenient, “flexible way” to search in any
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`7
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`
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`environment. ’317 Patent at Abstract.
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`R2 finally asserts that the limitations “are put together in a specific way to improve search
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`engine applications,” but fails to provide any factual support as to why such is true. Dkt. 21 at 20.
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`The ’317 Patent does not contain an inventive concept in the “ordered combination of the
`
`limitations.” BASCOM, 827 F.3d at 1349. Claim 1 merely describes a database in data
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`communication with a server, which are “generic computer components arranged in a conventional
`
`way”: storing information, receiving a search request, and guessing at the researcher’s intent. Id.
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`Accordingly, the claims of the ’317 patent are directed to an abstract idea.
`
`2.
`
`Claim 1 is representative
`
`R2’s response demonstrates that all asserted claims of ’317 Patent are directed to the same
`
`abstract idea. Adding an abstract way to guess at the researcher’s intent do not make it non-abstract.
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`See ’317 patent, cl. 9 (using “the most frequently submitted, previously-submitted query”). Nor
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`does restricting the method to web servers. Id., cl. 10.
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`E.
`
`The claims of ’097 patent are not eligible for patent protection
`
`1.
`
`The ’097 patent fails both steps of the Alice test
`
`R2, once again, manufactures additional limitations not recited in the ’097 Patent. As an
`
`example, R2 repeatedly suggests that the ’097 Patent “enhance[es] the graphical user interface” or
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`“enhancing graphical rendering” of search engine results. Dkt. 21 at 19, 20. Yet nothing in the
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`’097 Patent suggests any type of technical improvement. It is simply displaying information in a
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`manner other than a list, because it is better for advertising. The patent argues that a user visually
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`seeing “different content items presented together, according to his/her interest” may improve
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`engagement and “expected revenue.” ’097 Patent at 5:25–39; see also at 4:28–40.
`
`This mischaracterization shows that even R2 cannot decipher what its purported technical
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`advantage the ’097 Patent provides. There is none. While the ’097 Patent uses terms that sound
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`8
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`technical, like “framed structure” and “sub-component,” it does not describe them having any
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`technical feature. That is because the patent is simply using computers to display searched-for
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`information graphically rather than in a list—a problem not unique to computing. The claims must
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`remind the reader that the method is “implemented on at least one computing device” because the
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`computing device is simply used as a tool.
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`For Alice Step 2, similarly, R2, tries to argue the limitations of claim 1 “constitute a novel
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`and unconventional graphical user interface that solves recognized problems with search engine
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`technology,” but fails to provide any factual support as to why such is true. Dkt. 21 at 23. Rather,
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`R2 resort to the patent’s admissions that displaying information graphically is simply more
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`interesting, and therefore a better way to make money. Id. at 23–24 (citing 4:52–5:39).
`
`The ’097 Patent is thus distinguishable from Core Wireless and Trading Techs. Core
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`Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356, 1362 (Fed. Cir. 2018); Trading
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`Techs. Int’l, Inc. v. CQG, Inc., 675 F. App’x 1001, 1004 (Fed. Cir. 2017). Both cases have patents
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`that solve problems unique to computers. The asserted patent in Core Wireless allegedly solved
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`problems with “quickly accessing” computer “applications.” 880 F.3d at 1359. Likewise, in
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`Trading Techs., the asserted patents solved problems “in the context of computerized trading[ ]
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`relating to speed, accuracy and usability.” 675 F. App’x at 1004. Unlike the ’097 Patent’s
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`information search and retrieval environment, the improvements in Trading Techs were to
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`“graphical user interface devices that have no pre-electronic trading analog.” Id.
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`Similar to R2’s argument regarding the ’329 Patent above, R2’s citation of the Notice of
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`Allowance of the ’097 Patent is unpersuasive. (Dkt. 21 at p. 22 (citing Dkt. 22 at p. 24).) Collarity,
`
`Inc. 2015 WL 7597413, at *11; See also Cleveland Clinic Found. v. True Health Diagnostics LLC,
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`760 F. App’x at 1020.
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`9
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`2.
`
`Claim 1 is representative
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`R2 does not identify anything interesting in the other asserted claims that would change
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`the analysis. Claims 5 and 6 just relate to a ranking content using generic computer components
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`like an unspecified “machine learning model.” Claim 10 recites only black-box, functional
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`“units” for performing the method of Claim 1.
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`III. CONCLUSION
`
`For the foregoing reasons, 7-Eleven Inc. respectfully requests the Court dismiss Counts I-
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`IV for failure to state a claim upon which relief can be granted.
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`Dated: March 31, 2023
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`FISH & RICHARDSON P.C.
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`By: /s/ Neil J. McNabnay
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`Neil J. McNabnay
`njm@fr.com
`Texas Bar No. 24002583
`David B. Conrad
`conrad@fr.com
`Texas Bar No. 24049042
`Ricardo J. Bonilla
`rbonilla@fr.com
`Texas Bar No. 24082704
`Michael R. Ellis
`ellis@fr.com
`Texas Bar No. 24102726
`Nan Lan
`lan@fr.com
`Texas Bar No. 24121711
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`FISH & RICHARDSON P.C.
`1717 Main Street, Suite 5000
`Dallas, TX 75201
`(214) 747-5070 (Telephone)
`(214) 747-2091 (Facsimile)
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`Attorneys for Defendant
`7-Eleven, Inc.
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`Case 3:22-cv-02868-S Document 23 Filed 03/31/23 Page 15 of 15 PageID 426
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above and foregoing
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`document has been served on March 31, 2023 to all counsel of record who are deemed to have
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`consented to electronic service via the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/ Neil J. McNabnay
`Neil J. McNabnay
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`11
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