Case 1:17-cv-02097-RBJ Document 280 Filed 07/02/21 USDC Colorado Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`REALTIME ADAPTIVE STREAMING, LLC
`CIVIL ACTION NO. 1:17-CV-02097-RBJ
` Plaintiff,
`PATENT CASE
`JURY TRIAL DEMANDED
`
`v.
`SLING TV L.L.C., et al.,
`Defendants.
`DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY
`JUDGMENT OF INVALIDITY FOR LACK OF SUBJECT MATTER ELIGIBILITY
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`
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`Realtime’s Opposition makes clear how little is disputed. Realtime does not dispute
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`that: (1) the ’610 patent’s claims cover selecting an algorithm based on various factors
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`and compressing data (which is abstract); (2) the law holds that claims covering encoding
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`and compression / format conversion, without more, are ineligible subject matter; (3) the
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`claims are purely functional, result-oriented, and untethered to any structure; and (4)
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`throughput is just another parameter for consideration when choosing an algorithm.
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`Realtime relies heavily on unclaimed aspects of the specification and argues that the
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`Court’s claim constructions imbue eligibility, both of which fail. Realtime also cannot
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`distinguish the bevy of Federal Circuit decisions dooming the ’610 patent. Ultimately,
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`Realtime is on the wrong side of the law, and there are no factual disputes here. The
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`Court should enter summary judgment finding the ’610 patent ineligible under § 101.
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`I.
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`Realtime’s Claims Do Not Pass Alice Step 1
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`A. The ’610 Patent’s Claims Cover an Abstract Idea
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`The § 101 inquiry focuses on the claims, of course, which fail Alice step 1 if they
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`cover an abstract idea. See Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333 (Fed. Cir.
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`2012) (finding abstract claims that did “not specify how the computer hardware and
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`database are specially programmed to perform the steps claimed in the patent”)
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`(emphasis throughout brief added). Representative claim 1 cannot escape abstractness,
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`since it merely claims determining a parameter, selecting a compression algorithm based
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`on the parameter and throughput, and compressing data. At bottom, these claims cover
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`the abstract idea of selecting an algorithm based on data characteristics.1
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`To avoid scrutiny of its thin, functional claims, Realtime expends significant ink
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`citing the patent specification without tying it to the patent claim language at issue. E.g.,
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`Dkt. 267 (“Opp.”) 2-6. While claims are read in light of the specification, “the § 101 inquiry
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`focuses on the Asserted Claims themselves and the specification cannot be used to
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`import details from the specification if those details are not claimed.” ChargePoint, Inc. v.
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`SemaConnect, Inc., 920 F.3d 759, 769-70 (Fed. Cir. 2019) (citation omitted).
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`Even were Realtime’s resort to the specification proper, the specification does not
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`support eligibility. For example, Realtime makes much of how the claims use “throughput
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`of the communication channel” to select a compression algorithm. Opp. 6, 8. This
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`concept, itself abstract, only appears once in the specification, in the summary, casting
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`doubt on the significance of this limitation. ’610 pat., 8:24-28. The specification, however,
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`does not explain how the system tracks the number of pending transmission requests to
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`determine throughput of the communication channel, which the Court’s construction
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`requires.2 The mechanism for determining the number of requests might be less abstract,
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`1 Realtime makes the unfounded argument that DISH’s conception of the abstract idea
`oversimplifies the claim, citing Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir.
`2016). In Enfish, the court held only that it is improper to define the abstract idea “at such
`a high level of abstraction” that it is “untethered from the language of the claim.” Id. at
`1337. DISH closely tracks Realtime’s claims here, presenting no Enfish issue.
`2 Realtime’s reliance on the “throughput” limitation for patent eligibility cannot be
`reconciled with its infringement case. Realtime here asserts that using “the number of
`pending transmission requests” to choose compression is the key technological
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`2
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`but it is wholly missing. Realtime also relies heavily on the ’610 patent’s purported ability
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`to handle “bottlenecks.” Opp. 2-4. Yet, the claims do not mention bottlenecks, and
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`Realtime’s broad claims go far beyond bottlenecks. Even if Realtime had claimed
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`“handling bottlenecks,” that would not confer eligibility because the claims still “do no
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`more than describe a desired function or outcome, without providing any limiting detail
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`that confines the claim to a particular solution.” Affinity Labs of Texas, LLC v.
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`Amazon.com Inc., 838 F.3d 1266, 1269 (Fed. Cir. 2016).
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`Finally, Realtime suggests that the Court’s claim constructions render the ’610
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`patent eligible. But the Court’s constructions do no more than reference routine, generic
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`computer hardware. For example, Realtime’s expert acknowledged that asymmetric
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`compression was not inventive and was known in the art. Ex. A at 61:20-62:12. And no
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`party has alleged that throughput or data blocks are anything but conventional, non-
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`inventive computer concepts in existence long before the ’610 patent.
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`B. The Federal Circuit’s Caselaw Firmly Establishes Ineligibility
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`1. Realtime Cannot Distinguish Adaptive Streaming
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`Realtime—on page 12 of its brief—fails to distinguish Adaptive Streaming Inc. v.
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`Netflix, Inc. (Dkt. 234-3). Adaptive Streaming controls because it considered the same
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`abstract ideas as the ’610 patent’s claims, i.e., selecting a compression technique and
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`contribution of the ’610 patent. Opp. 11, 17-18. But in its infringement case, Realtime
`vitiates this “pending requests” limitation by asserting that everything from “expected”
`transmission requests to bandwidth is sufficient. See Dkt. No. 242 at 5-7. Realtime’s
`reliance on “expected” requests shows that the ’610 patent covers mental processes.
`While computers are intelligent, computers do not “expect” future events. Realtime’s case
`is based on human engineers’ mental expectations that they build into the system. These
`are the exact types of mental exercises that are not eligible for patenting.
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`3
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`converting data. See Dkt. 234-3 at 7-8. Moreover, the Adaptive Streaming claims selected
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`a compression signal based on bandwidth, which Realtime’s expert, Dr. Mitzenmacher,
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`equates to the throughput claimed in the ’610 patent. Ex. B at 193:17-25.3
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`Realtime argues, without explanation, that Adaptive Streaming is inapplicable
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`because it involves “the abstract idea of format conversion.” Opp. 12. But Realtime’s own
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`expert, Dr. Rhyne, disagrees. He testified that a compression algorithm is applied “to
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`uncompressed video data to convert it to compressed video data.” Ex. A at 34:19-23.
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`There is no dispute that compression converts data from one format (uncompressed) to
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`another (compressed). At bottom, Realtime’s claims suffer from the same problems that
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`troubled the Adaptive Streaming court: “[t]he focus is not any specific advance in coding
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`or other techniques for implementing that idea; no such specific technique is required” by
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`Realtime’s claims. Adaptive Streaming, 836 F. App’x at 903.
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`2. Realtime’s Other Cases Are Inapposite
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`Realtime overstates the Federal Circuit’s Enfish holding in suggesting that all
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`patent claims that purport to improve computing functions are per se eligible. Opp. 6-8.
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`Enfish is much narrower, recognizing only that “some improvements in computer-related
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`technology when appropriately claimed” are not abstract. Id. at 1335; see also id. at
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`1339 (deeming claims to “specific implementation[s] of a solution to a problem in the
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`software arts” as potentially eligible). The Enfish claims—directed to a specific computer
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`memory configuration—required incredible detail and precision. As construed, they
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`3 Realtime emphasizes that Adaptive Streaming issued as a nonprecedential decision.
`Opp. 12. This is of no moment. Adaptive Streaming would appear to be designated
`nonprecedential simply because the claims at issue were so clearly ineligible under
`binding precedent, that there was no need to issue it as precedential.
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`4
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`required, among other things, “a plurality of logical rows, each said logical row including
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`an object identification number (OID)” that “can act as a pointer to the associated row or
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`column,” and “a plurality of logical columns intersecting said plurality of logical rows to
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`define a plurality of logical cells” in a configuration that “render[s] the table self-referential.”
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`Enfish, 822 F.3d at 1336. The high-level and broad ’610 patent claims directed to
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`selecting a compression method are unlike the narrow, detailed claims at issue in Enfish.4
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`C. The Asserted Claims Mirror the Ineligible ’535 Patent Claims
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`Realtime is incorrect that the two tribunal decisions finding claims of the ’535 patent
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`ineligible are “inapposite.” Opp. 13-14. These decisions strongly support a finding that the
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`’610 patent’s claims are ineligible because their logic and reasoning apply equally here.
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`Realtime argues that in Google, the claims the court declined to find invalid are
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`“more like the ’610 [patent’s] claims than claim 15 of the ’535 patent . . . .” Opp. 13.
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`Realtime’s wholly conclusory statement does not create a material dispute of fact. It is
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`also incorrect, as the Google court explained that “there is evidence to suggest that the
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`claimed steps for [representative] Claim 40 of the ’046 Patent and [representative] Claim
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`1 of the ’477 Patent are tied to specific computer systems that ‘improve[ ] computer
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`functionality in some way,’ rather than being drawn to purely abstract concepts.” Dkt. 234-
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`6 at 6. This is unlike the claims of the ’610 patent and claim 15 of the ’535 patent as they
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`4 The other cases Realtime cites along with Enfish are similarly inapplicable because they
`considered highly detailed and specific claims addressing particular problems with
`computer functionality. See Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 53-58
`(Fed. Cir. 2017) (applying the rule that the court “articulate with specificity what the claims
`are directed to” in deciding whether “the claims are directed to an improvement to
`computer functionality versus being directed to an abstract idea”); DDR Holdings, LLC v.
`Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014) (considering claims that “recite[d]
`a specific way . . . for resolving [a] particular Internet-centric problem”).
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`5
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`are not directed to specifically improving the functioning and operation of a computer.5
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`See id. at 9 (“Claim 15 of the ’535 Patent does not state that performance of the claimed
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`method will result in a faster rate of compression.”).6
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`Realtime next argues that the Google court’s ruling is inapposite because “the
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`court’s unique concern with claim 15 was that it could be performed manually by a human
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`user.” Realtime confuses the law. It’s true that “a method [that] can be performed by
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`human thought alone is merely an abstract idea and is not patent eligible under § 101.”
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`Dkt. 234 at 10-11 (collecting cases). But the inverse is not true, i.e., that claims unable to
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`be performed manually are necessarily directed to patentable subject matter. Instead, the
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`Federal Circuit explains that “the category of patent-ineligible abstract ideas is not limited
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`to methods that can be performed in the human mind.” Cyberfone Sys., LLC v. CNN
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`Interactive Grp., Inc., 558 F. App’x 988, 991-92 (Fed. Cir. 2014) (citations omitted).7
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`Setting this aside, Realtime fails to create a material issue of fact. Realtime’s
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`argument that the ’610 patent claims cannot be performed manually is incorrect and
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`unsupported by evidence. See Opp. 13-14. The ’610 patent can be performed manually,
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`as supported by the patent itself, the inventor’s testimony, and expert testimony. Dkt. 234
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`at 10-11. Realtime’s assertion that its expert, Dr. Rhyne, opines “that the claims ‘cannot
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`5 Similarly, Claims 1-14 of the ’535 patent included “additional limitations related to
`selecting an access profile” not contained in the ’610 patent. Dkt. 234-6 at 10-11.
`6 Also, contrary to Realtime’s suggestion, the Google court did not find that the remaining
`claims were valid, but instead repeatedly explained that its decision was being made “on
`the current record” in light of the burden of proof required at the FRCP 12(b)(6) stage.
`7 The Netflix R&R recognizes this principle. There, Realtime argued that “claim 15 of the
`’535 patent . . . discusses data ‘not easily recognizable to humans.’” Dkt. 234-7 at 13. The
`Magistrate Judge explained that this was “not relevant” because “the subject matter of
`the claims as a whole” showed that the ’535 patent was directed to the abstract “method
`of adding an algorithm that changes the data to a new form of data. . . .” Id.
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`6
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`be carried out physically or through mental processes’” is inaccurate.8 Opp. 14. Dr. Rhyne
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`actually says that it would be impractical—not impossible—to practice the ’610 patent
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`manually because “the amount of data that the patent describes . . . is an explosion of
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`many megabytes or gigabytes of data,” Dkt. 267-12 at ¶1286; see also Ex. A at 40:10-
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`42:1. This opinion fails to create a material dispute of fact because “[m]erely . . . provid[ing]
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`a ‘humanly comprehensible’ amount of information useful for users—by itself does not
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`transform the otherwise-abstract [idea].” Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d
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`1350, 1355 (Fed. Cir. 2016) (citation omitted). In fact, the very DISH Dynamux system
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`that Realtime says infringes is configured manually by human engineers. Compression
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`decisions are made by engineers who code compression rates in software long before
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`any connection to a communication channel or requests for data transmission occur.
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`Realtime finally argues that the Netflix R&R is unpersuasive because “the
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`magistrate judge treated claim 15 as representative of all claims of the ’535 patent,” unlike
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`the Google court. However, the Netflix R&R explains that Realtime conceded the issue
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`by “fail[ing] to present any meaningful argument” for why claim 15 was not representative.
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`Id. at 10-11. The opposite was true in Google, because the Defendants there failed to
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`“meaningfully respond
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`to
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`[Realtime’s] arguments”
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`for why claim 15 was not
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`representative. Dkt. 234-6 at 10-11. In other words, the Netflix R&R and Google do not
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`conflict, but simply reflect the parties’ differing treatment of claims 1-14 of the ’535 patent.
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`8 Defendants strongly disagree with Realtime’s assertion that “Dr. Bovik’s opinions on this
`issue—and about § 101 generally—are unreliable.” Opp. 14. Realtime cannot fabricate a
`material dispute of fact by cherry-picking a single, partial response from Dr. Bovik’s
`deposition. Dr. Bovik was not “all but ignor[ing]” the Court’s claim constructions, but
`correctly explaining that he was “not a lawyer” and that he understood that “a judge can
`still construe a term even if . . . claims are unpatentable.” Dkt. 267-3 at 355:23-356:10.
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`7
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`Notably, this case mimics the Netflix R&R because Realtime here has not presented any
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`meaningful reason why claim 1 is not representative of the ’610 patent.
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`II. Realtime’s Claims Remain Ineligible at Alice Step 2
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`A. The Claims Lack “Significantly More” Than the Abstract Idea
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`Realtime’s reliance on Alice step 2 fails to save the ’610 patent. Realtime argues
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`its claims provide an “unconventional” solution, asserting that its claims are eligible
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`because they are not invalid under 35 U.S.C. § 102. Opp. 15-17. Realtime relies on the
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`wrong test, as “[t]he search for a § 101 inventive concept is [] distinct from demonstrating
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`§ 102 novelty” because “a claim for a new abstract idea is still an abstract idea.”
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`Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016). “[A] claim
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`directed to a[n] . . . abstract idea cannot rely on the novelty . . . for the inventive concept
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`necessary for patent eligibility . . . .” Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369,
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`1376 (Fed. Cir. 2016).9 Realtime’s argument that claim elements must be viewed as an
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`“ordered combination” does not impart step 2 eligibility here. Cases finding eligibility
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`based on an ordered combination of elements are limited to claims that “recite a specific,
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`discrete implementation of the abstract idea,” unlike the broad claims here. Bascom
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`Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016).
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`Attempting to resuscitate its claims at step 2, Realtime cites the discussion in Dr.
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`Rhyne’s expert report of various different patent applications filed after the ’610 patent.
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`Opp. 17. These unrelated applications are irrelevant to showing that the ’610 patent
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`includes sufficient disclosure to prevail at step 2. Realtime’s attempt to manufacture a fact
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`9 To the extent novelty is relevant, the Patent Office’s current position is that the claims
`are not novel and should be cancelled. See Dkts. 250, 250-3.
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`8
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`dispute fails; none of these purported disputes—about different patents—disrupt the
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`conclusion that the ’610 patent claims cover an ineligible abstract idea. See Mortg.
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`Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1325-26 (Fed. Cir. 2016)
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`(“The mere existence in the record of dueling expert testimony does not necessarily raise
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`a genuine issue of material fact [regarding patent eligibility].”).
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`B. Remaining Claims 2, 6, 8-14, 16, and 18 also Fail Alice Steps 1 and 2
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`Realtime’s argument that claim 1 is not representative is conclusory. “Courts may
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`treat a claim as representative . . . if the patentee does not present any meaningful
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`argument for the distinctive significance of any claim limitations not found in the
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`representative claim.” Berkheimer v. HP Inc., 881 F.3d 1360, 1365 (Fed. Cir. 2018).
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`Despite its burden to do so on summary judgment, Realtime fails to identify any distinctive
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`significance regarding the other asserted claims, and claim 1 is thus representative.
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`Nonetheless, the remaining claims do not alter the § 101 analysis. Claims 2 and
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`10 are dependent claims that simply include a data storage requirement, a concept that
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`the Federal Circuit holds ineligible. Similarly, dependent claims 6 and 16 merely qualify
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`that each compression algorithm available for selection is asymmetric. Limiting the
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`choices for selection is part of the same abstract idea (performing a selection) without
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`further inventive concept. Dependent claim 14 requires performing a selection of a
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`compression algorithm based on a determined parameter or attribute, the throughput of
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`the communication channel and the frequency of access of a portion of a second data
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`block. Here, again, claim 14 covers the abstract concept of selection using only generic
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`factors such as a determined communication channel throughput. None of these factors
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`9
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`alone or in combination imparts an inventive concept. Claims 8, 11-13, and 18 require
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`retrieving compressed data from storage based on: CPU utilization (claims 8 and 18),
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`throughput or a user command (claim 11), a first and second throughput (claim 12) and
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`a third throughput (claim 13). Whereas storage is the writing of data to memory, retrieval
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`is the reading of data from memory. Both are abstract concepts and neither imparts
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`inventive concepts onto the ’610 patent claims. Finally, independent claim 9 is simply the
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`apparatus version of patent ineligible representative method claim 1. Even claim 9 merely
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`parrots the same abstract determining, selecting and compression steps of claim 1. To
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`be sure, the recited claim elements like a controller, data block, communication channel,
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`and data compression system are all generic or functionally-claimed components of a
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`general purpose computer and none imparts a patent eligible inventive concept. Thus,
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`like claim 1, these claims should be held ineligible under § 101.
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`III. Conclusion
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`DISH respectfully requests that the Court grant summary judgment of ineligibility.
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`Respectfully submitted,
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` Dated: July 2, 2021
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`
`
`s/ Ruffin B. Cordell
`Ruffin B. Cordell
`Adam R. Shartzer
`Brian J. Livedalen
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`CERTIFICATE OF COMPLIANCE: This brief complies with the limits of Judge Jackson’s
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`FISH & RICHARDSON P.C.
`1000 Maine Ave. SW, Ste. 1000
`Washington, DC 20024
`PH: 202-783-5070
`
`Attorneys for Defendants DISH
`Network L.L.C., Sling TV L.L.C.
`Sling Media L.L.C., and DISH
`Technologies L.L.C.
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`Practice Standards, and the type-volume limits of D.C.COLO.LPtR 17, with 3,181 words.
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`CERTIFICATE OF SERVICE: I certify that on this 2nd day of July, 2021, I electronically
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`filed this with the Clerk of the Court using CM/ECF, which will notify and serve all counsel.
`
`s/ Ruffin B. Cordell
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`10
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