Execware LLC v. BJ's Wholesale Club Inc.

Filing 24

REPORT AND RECOMMENDATIONS recommending Denial of D.I. (8 in 1:14-cv-00233-LPS, 8 in 1:14-cv-00234-LPS, 9 in 1:14-cv-00235-LPS, 9 in 1:14-cv-00236-LPS, 8 in 1:14-cv-00240-LPS) MOTION to Dismiss for Failure to State a Claim filed by Defendants, and De nying D.I. (15 in 1:14-cv-00233-LPS, 16 in 1:14-cv-00234-LPS, 16 in 1:14-cv-00236-LPS, 15 in 1:14-cv-00240-LPS) MOTION for Leave to File a Surreply filed by Execware LLC. Please note that when filing Objections pursuant to Federal Rule of Civil Proce dure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 8/3/2015. Signed by Judge Christopher J. Burke on 7/15/2015. Associated Cases: 1:14-cv-00233-LPS, 1:14-cv-00234-LPS, 1:14-cv-00235-LPS, 1:14-cv-00236-LPS, 1:14-cv-00240-LPS (aer)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
EXECWARE, LLC,
Plaintiff,
v.
BJ'S WHOLESALE CLUB, INC.,
Defendant.
EXECWARE, LLC,
Plaintiff,
v.
BLUE NILE, INC.,
Defendant.
EXECWARE, LLC,
Plaintiff,
V.

BUY.COM INC.,
Defendant.
EXECWARE, LLC,
Plaintiff,
v.
DOLLAR GENERAL CORP.,
Defendant.

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Civil Action No. 14-233-LPS

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Civil Action No. 14-234-LPS

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Civil Action No. 14-235-LPS

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Civil Action No. 14-236-LPS

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EXECWARE, LLC,
Plaintiff,

v.
NORDSTROM, INC.,
Defendant.

Civil Action No. 14-240-LPS

REPORT AND RECOMMENDATION
Presently pending before the Court are motions to dismiss for failure to state a claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure (the "Motions"), filed by Defendants
BJ's Wholesale Club, Inc., Blue Nile, Inc., Buy.com Inc., Dollar General Corp., and Nordstrom,
Inc. (collectively, "Defendants"). (Civil Action No. 14-233-LPS, D.I. 8; Civil Action No. 14234-LPS, D.I. 8; Civil Action No. 14-235-LPS, D.I. 9; Civil Action No. 14-236-LPS, D.I. 9;
Civil Action No. 14-240-LPS, D.I. 8) 1 Defendants argue that PlaintiffExecware, LLC's
("Execware") United States Patent No. 6,216,139 (the "'139 patent") is directed to non-patenteligible subject matter pursuant to 35 U.S.C. § 101 ("Section 101"). (D.I. 9 at 1) For the reasons
that follow, the Court recommends that Defendants' Motions be DENIED.

I.

BACKGROUND

A.

Factual Background

The '139 patent is entitled "Integrated Dialog Box for Rapidly Altering Presentation of
Parametric Text Data Objects on a Computer Display[.]" It describes an invention meant to

Identical motions were filed in each of the above-captioned actions, and the
relevant briefing is identical in all of the actions. Future citations will be to the record in the
earliest-filed action, Civil Action No. 14-233-LPS, unless otherwise noted.
2

provide a user with the ability to rapidly format and re-format databases or "text data objects,"
according to the preferences of the user. ('139 Patent, at Abstract & cols. 1:6-11,2:49-52)
According to the specification, database programs at the time of invention suffered from
poor user interfaces, which were difficult and time consuming to use. (Id., cols. 1:23-45; 2:6-20)
These databases were designed by database operators, who were familiar with how databases
work and, as such, were trained in how to manipulate the database and create tables that display
the information in the database. (Id., col. 1:23-45) But while database operators designed and
constructed the databases, those databases were ultimately used for the most part by ordinary
users, who were not familiar with how databases work, and who might find it difficult on their
own to reformat or rearrange the tables that display the data. (Id., cols. 1:23-45; 2:6-20) Thus, if
a database user decided to reformat a view of information from the database, it might "take
considerable time to produce a table reflecting the changes." (Id., col. 1:40-42) "Even if the user
is the operator of the database management system, time will be required and the user's current
line of analytic reasoning may be lost." (Id., col. 1:42-45) In other words, "while computer
database management systems and spreadsheet programs with data-sorting capability ha[ d] been
widely available, existing systems and programs for sorting data may not [have] adequately
serve[d] the needs of some users, especially those without specialized training or experience[.]"

(Id., col. 2:6-10) The patent specification identified the problem with the then-current interfaces
used to search databases: existing programs required "a series of precisely-specified steps" in
order to select different sort parameters and subsets of the data for viewing-steps that could
"frustrate a user interested in quickly pursuing many varying lines of thought" and that often
required "substantial training, familiarity with user manuals and, in some cases, specialized

3

personnel." (Id., col. 2:14-20)
The patentee sought to solve this problem by designing a new user interface that would
allow an ordinary user to "exercis[e] personal control of the format of the presentation" of the
data. (Id., col. 2:25-29) This new interface would allow regular users to quickly select and sort
data from a database, without necessarily having to involve a more experienced database operator
or other resources. (Id., col. 2:29-65)
The patent contains three independent claims (claims 1, 10, and 19), all of which relate to
the same subject matter. Claim 1 claims a method involving the use of a "query dialog box" to
filter and sort data from a computer database:

1. A method for using a computer system to sort and display text
data objects, comprising the steps of:
a. imaging, on a display device controlled by the computer system,
a query dialog box,
wherein the query dialog box displays each of a plurality of
parameters associated with each of the text data objects,
forms a plurality of spaces for listing values associated with
each displayed parameter, and further forms a space for
selecting a sort order;
b. designating, for each displayed parameter, a parameter value;
c. constructing a sort order from the displayed parameters in the
space for selecting a sort order;
d. selecting, using the computer system, text data objects satisfying
the designated values; and
e. sorting, using the computer system, the selected text data objects
according to the constructed sort order.
(Id., col. 13:38-55) Claim 10 is a system claim with similar limitations, some of which are
preceded with "means for." (Id., col. 14:31-50) Claim 19 claims a computer program on a
memory storage device that also performs similar functions. (Id., col. 16:5-24)
Each of the eight claims that depend from claim 1 adds one or more steps to the method.

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Claim 2 involves displaying the sorted list of text data objects that results from the query built in
claim 1. (Id, col. 13:56-58) Claim 3 relates to the process of editing existing database entries
after they are displayed using the interface claimed in claims 1 and 2. (Id., col. 13 :59-65) The
remainder of the claims that depend from claim 1 involve adding column headings to the sorted
list (claim 4), adding new text data objects (claim 5), using multiple databases (claim 6),
selecting one of multiple databases (claim 7), a dialog box for associating parameters with names
and text data objects (claim 8), or the step of printing the sorted text data objects (claim 9). (Id.,
cols. 13:66-14:30)
Dependent claims 11-18 depend from claim 10, and generally mirror dependent claims 29. (Id., cols. 14:51-16:4) Independent claim 19 lacks any dependent claims.

B.

Procedural Background

Plaintiff commenced these actions on February 21, 2014. (D.I. 1) The Defendants filed
the instant Motions in lieu of answering, and initial briefing was completed on the Motions on
June 9, 2014. (Civil Action No. 14-235-LPS, D.I. 15)2 Subsequent to Defendants' reply brief,
Plaintiff filed a motion seeking permission to file a six-page sur-reply brief ("Plaintiffs Motion
to File a Sur-Reply"), (DJ. 15), which Defendants opposed, (D.I. 17). 3 Defendants thereafter

2

The Court notes that Plaintiffs answering brief, (D .I. 10), lacks page numbers on
all pages after page 1. The Court will therefore cite to this document by its CM/ECF page
numbers.
3

The Court has reviewed Plaintiffs Motion to File a Sur-Reply and the relevant
briefs, and has determined that the arguments offered in Defendants' reply brief were proper (and
were not "new"), because they either expound on arguments made in Defendants' opening brief,
or because they involve content that is directly responsive to arguments made in Plaintiffs
answering brief. See St. Clair Intellectual Prop. Consultants, Inc. v. Samsung Elecs. Co. Ltd.,
291 F.R.D. 75, 80 (D. Del. 2013) ("A Court may grant leave to file a sur-reply if it responds to
new evidence, facts, or arguments.") Thus, the Court hereby DENIES Plaintiffs Motion to File
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submitted a notice of supplemental authority, and Plaintiff submitted a response to that notice.
(D.I. 18, 20) 4
The motion in Civil Action No. 14-235-LPS was referred to the Court for resolution by
Chief Judge Leonard P. Stark on May 28, 2014, and the other motions in the remaining cases
were referred on October 15, 2014. The Court thereafter held oral argument on December 10,
2014. (D.I. 23 (hereinafter, "Tr."))

II.

STANDARD OF REVIEW
A.

Standard of Review Regarding Motions to Dismiss Relating to Section 101
Issues

Pursuant to Rule 12(b)(6), a party may move to dismiss the plaintiffs complaint based on
the failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)( 6). The
sufficiency of pleadings for non-fraud cases is governed by Federal Rule of Civil Procedure 8,
which requires "a short and plain statement of the claim showing that the pleader is entitled to
relief1.]" Fed. R. Civ. P. 8(a)(2). In order to survive a motion to dismiss pursuant to Rule
12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face[.]" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks and citation omitted). In assessing the plausibility of a claim, the court must
"construe the complaint in the light most favorable to the plaintiff, and determine whether, under

a Sur-Reply.
4

These filings are in violation of District of Delaware Local Rule 7. l .2(b), because
they go beyond the "citation of subsequent authorities[,]" and instead include argument akin to
what would be found in a brief. Though the Court will take into account relevant court decisions
issued subsequent to the briefing in this case, the Court will not otherwise consider the content of
these notices.
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any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citing Phillips v. Cnty. ofAllegheny, 515 F.3d 224,
233 (3d Cir. 2008)).
Here, the Motions filed pursuant to Rule 12(b)(6) are used to assert an affirmative
defense. In that scenario, dismissal is permitted only if the well-pleaded factual allegations in the
Complaint, construed in the light most favorable to the plaintiff, suffice to establish the defense.

See Jones v. Bock, 549 U.S. 199, 215 (2007); Kabba} v. Google, Inc., Civ. No. 13-1522-RGA,
2014 WL 1369864, at *2 n.2 (D. Del. Apr. 7, 2014); see also Genetic Techs. Ltd. v. Agilent

Techs., Inc., 24 F. Supp. 3d 922, 927 (N.D. Cal. Mar. 7, 2014).
Patentability under Section 101 is a "threshold inquiry" and a question oflaw. In re

Bilski, 545 F.3d 943, 950-51 (Fed. Cir. 2008), ajf'd, Bilski v. Kappas, 561 U.S. 593 (2010). Yet
this question oflaw is also one that "may be informed by subsidiary factual issues[.]"

CyberFone Sys., LLC v. Cellco P'ship, 885 F. Supp. 2d 710, 715 (D. Del. 2012) (citing In re
Comiskey, 554 F.3d 967, 976 (Fed. Cir. 2009)). 5 Some members of the United States Court of
Appeals for the Federal Circuit have suggested that "any attack on an issued patent based on a
challenge to the eligibility of the subject matter must be proven by clear and convincing
evidence[,]" CLS Bank Int'! v. Alice Co. Pty. Ltd., 717 F.3d 1269, 1304-05 (Fed. Cir. 2013)

In its answering brief, Plaintiff relies repeatedly on the Federal Circuit's opinion
in Ultramercial, Inc. v. Hulu, LLC, 722 F.3d 1335 (Fed. Cir. 2013) ("Ultramercial If'). (D.I. 10
at 4, 7, 9, 12) That opinion has since been vacated, and the Federal Circuit's subsequent opinion
in the case reversed its prior decision in Ultramercial II. Ultramercial, Inc. v. Hulu, LLC, 772
F.3d 709, 709-12 (Fed. Cir. 2014), cert. denied sub nom., Ultramercial, LLC v. WildTangent,
Inc., - S.Ct. - , No. 14-1392, 2015 WL 2457913 (U.S. June 29, 2015). As such, Ultramercial
II lacks precedential effect, and the Court will not consider it here. See TriPlay, Inc. v.
WhatsApp Inc., Civil Action No. 13-1703-LPS, 2015 WL 1927696, at *4 n.3 (D. Del. Apr. 28,
2015) (describing the differences between these Ultramercial decisions).
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(Rader, J., concurring-in-part and dissenting-in-part), but at least one other member of that Court
has come to the opposite conclusion, see Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 720-21
(Fed. Cir. 2014) ("Ultramercial !If') (Mayer, J., concurring), all of which has led to some
uncertainty regarding the appropriate standard of proof in Section 101 cases, see Intellectual
Ventures I LLC v. Symantec Corp., C.A. No. 10-1067-LPS, C.A. No. 12-1581-LPS, 2015 WL

1843528, at *5-6 (D. Del. Apr. 22, 2015) (citing cases). However, even to the extent that the
"clear and convincing" standard of proof is applicable to Section 101 challenges, it would apply
only to the resolution of factual disputes, and not to resolution of pure issues of law. See
TriPlay, Inc. v. WhatsApp Inc., Civil Action No. 13-1703-LPS, 2015 WL 1927696, at *3-5 (D.

Del. Apr. 28, 2015) (citing cases); see also Affinity Labs of Texas, LLC v. Amazon.com, Inc., No.
6:15-CV-0029-WSS-JCM, 2015 WL 3757497, at *5 (W.D. Tex. June 12, 2015). And as to the
instant Motions, filed at the pleading stage (a stage at which, ifthere are disputed issues of fact,
such facts are already to be construed in the light most favorable to the plaintiff), the "clear and
convincing" standard of proof should not come into play at all. See Triplay, 2015 WL 1927696
at *5 n.5 (citing Modern Telecom Sys. LLC v. Earth/ink, Inc., No. SA CV 14-0347-DOC, 2015
WL 1239992, at *7-8 (C.D. Cal. Mar. 17, 2015)); Shortridge v. Found. Constr. Payroll Serv.,
LLC, Case No. 14-cv-04850-JCS, 2015 WL 1739256, at *7 (N.D. Cal. Apr. 14, 2015) (quoting
Modern Telecom, 2015 WL 1239992 at *7-8).

B.

Need for Claim Construction

There is no hard-and-fast rule that a court must construe terms in the claims at issue
before it performs a Section 101 analysis. Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of
Canada (US.), 687 F.3d 1266, 1273-74 (Fed. Cir. 2012) ("[W]e perceive no flaw in the notion

8

that claim construction is not an inviolable prerequisite to a validity determination under
[Section] 101.") In some cases, claim construction is unnecessary. See, e.g., Cyberfone Sys.,

LLC v. CNN Interactive Grp., Inc., 558 F. App'x 988, 992-93, 992 n.1 (Fed. Cir. 2014) (holding
that a patent claim was subject matter ineligible under Section 101, where the district court did
not engage in claim construction, and where the plaintiff "d[id] not explain which terms require
construction or how the analysis would change"). In other cases, such as when a Section 101
motion would be well taken even were a plaintiffs proposed claim construction to be accepted, a
court may adopt the plaintiffs construction (or the construction most favorable to the plaintiff)
for the purposes of the motion. See Content Extraction & Transmission LLC v. Wells Fargo

Bank, Nat. Ass 'n, 776 F.3d 1343, 1349 (Fed. Cir. 2014) (concluding at the Rule 12(b)(6) stage
that "even when construed in a manner most favorable to [plaintiff], none of [plaintiffs] claims
amount to significantly more than the abstract idea [at issue]") (internal quotation marks and
citations omitted); Genetic Technologies Ltd. v. Lab. Corp. ofAm. Holdings, Civil Action No.
12-1736-LPS-CJB, 2014 WL 4379587, at *5-6 (D. Del. Sept. 3, 2014) (citing cases).
Alternatively, the Court may decline to rule on a Rule 12 motion prior to engaging in claim
construction, see, e.g., Loyalty Conversion Sys. Corp. v. Am. Airlines, Inc., 66 F. Supp. 3d 829,
834-35 (E.D. Tex. 2014) (Bryson, J., sitting by designation), or may deny the motion if it appears
there are potential constructions of key claim terms that, if adopted, would render the claims
subject matter eligible, see TriPlay, 2015 WL 1927696 at *3-6, *17-19.

III.

DISCUSSION
In resolving the Motions, the Court will first address Plaintiffs argument that patent

eligibility under Section 101 cannot be properly addressed at this stage. (D.I. 10 at 4-6) The

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Court will then go on to reach the substance of the Motions.

A.

Addressing Section 101 at the Rule 12(b)(6) Stage

Plaintiff puts forward two reasons why a Section 10 I -related affirmative defense cannot
be properly addressed through the filing of a Rule 12(b)( 6) motion to dismiss. The Court finds
neither argument well taken.
First, Plaintiff argues that the "Supreme Court [of the United States] has expressly held
that affirmative defenses [like the Section 101 defense at issue here] are not appropriate for
motions to dismiss." (D.I. 10 at 5-6) The only precedent that Plaintiff cites in support of this
assertion is the decision in Mumm v. Jacob E. Decker & Sons, 301 U.S. 168 (1937). (D.1. 10 at
6) Yet Mumm does not do the work Plaintiff asks of it.
In Mumm, the Supreme Court held that a plaintiff was not required to preempt potential
affirmative defenses in its own pleading by setting forth facts establishing that the patent at issue
was valid under the statutory requirements of the time. 6 Mumm, 301 U.S. at 169-71. Instead, the
Mumm Court noted that it is the defendant's burden to present facts with regard to validity, and

"[w]hat must be ... established by the defendant cannot be regarded as a part of the plaintiffs
case which is to be set forth in his bill[.]" Id. at 171. Although Mumm thus held that the plaintiff
was not required to "negative" any affirmative defenses at issue by way of the facts pled in its

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As set forth in Mumm, these requirements included "that the invention, of each of
the patents in suit, was not known or used by others in this country before the inventor's
invention or discovery thereof, was not patented or described in any printed publication in this or
any foreign country before his invention or discovery, or for more than two years prior to his
application, and was not in public use or on sale in this country for more than two years prior to
his application, that the invention had not been abandoned, and that no application for foreign
patents had been filed more than twelve months prior to the filing of the application in this
country." Mumm, 301 U.S. at 169.
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complaint, id. at 171, the Mumm Court did not foreclose the possibility that the legal merit of
certain affirmative defenses (such as, here, patent ineligibility) could well be evident solely via
an examination of what has been alleged in a complaint (and via the exhibits attached thereto,
which here includes the patent-in-suit), (D.I. 1 & ex. A). And, as was noted above in Section
II.A, since Mumm, the Supreme Court, lower courts, and legal commentators have routinely
stated that affirmative defenses may in fact be adjudicated at the pleading stage-so long as the
applicability of the affirmative defense is clear from the face of the complaint, documents
integral to it, and exhibits attached thereto. 7 Indeed, the Federal Circuit has recently (and
repeatedly) adjudicated Section 101 affirmative defenses that were raised via a Rule 12(b)(6)
motion. See, e.g., Ultramercial III, 772 F.3d at 711, 717; Content Extraction, 776 F.3d at 1349;

see also OIP Techs., Inc. v. Amazon.com, Inc., -F. 3d-, No. 2012-1696, 2015 WL 3622181,
at *4 (Fed. Cir. June 11, 2015) (Mayer, J., concurring) (commending the lower court for
resolving a Section 101 affirmative defense at its first opportunity, and stating that "where ...
asserted claims are plainly directed to a patent ineligible abstract idea, we have repeatedly
sanctioned a district court's decision to dispose of them on the pleadings"). For all of these
reasons, Mumm does not prevent the Court from taking up Defendants' Motions at this time.
Plaintiffs second argument also fails. Here, Plaintiff asserts that: ( 1) in its Complaint, it
pied that the '139 patent was "duly and legally issued by the Patent Office"; (2) that "fact must be

7

See Jones, 549 U.S. at 215 ("Whether a particular ground for opposing a claim
may be the basis for dismissal for failure to state a claim depends on whether the allegations in
the complaint suffice to establish that ground, not on the nature of the ground in the abstract.");
SB Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure§ 1357 (3d ed.
2015) ("As the case law makes clear, the complaint also is subject to dismissal under Rule
l 2(b)(6) when its allegations indicate the existence of an affirmative defense that will bar the
award of any remedy ... ").
11

assumed to be true" at the pleading stage, and it "gives rise to a legal presumption that the patentin-suit is valid"; and (3) this presumption of validity precludes a determination at this stage that
the patent is subject matter ineligible. (D.I. 10 at 6; see also D.I. 1 at if 6)
The Court disagrees with the premises behind Plaintiffs argument, for a number of
different reasons. First, Plaintiffs statement that its patent was "duly and legally" issued (to the
extent that this amounts to an assertion that the patent is subject-matter eligible) is a textbook
example of a bare legal conclusion, and "the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678.
Second, assuming that the presumption of validity applies in the context of a Section 101
eligibility challenge, it is the wording of 35 U.S.C. § 282 that would give rise to the presumption,
not whether or not Plaintiff invoked any particular "magic words" in its Complaint. Cf
Microsoft Corp. v. i4i Ltd. P 'ship, 131 S.Ct. 2238, 2242-43 (2011). And third, the effect of the

presumption of validity is to impose the burden of proving invalidity on the party attacking
validity, and to implicate a heightened standard of proof (the "clear and convincing" evidence
standard) with regard to the resolution of factual disputes that relate to the question of validity.
See i4i, 131 S. Ct. at 2243-52; see also id. at 2253 (Breyer, J., concurring). In the context of

these Motions, which are being considered at the Rule 12(b)( 6) stage, the fact that the movant
bears the burden of proof on an affirmative defense does not preclude a finding of ineligibility.
And (as was noted above), the "clear and convincing" standard of proof does not come into play
at all.
Because the Court has determined that it can be proper to address a Section 101 motion in
a patent infringement action at the Rule 12(b)( 6) stage, the Court now proceeds to assess the
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substance of Defendants' Motions.
B.

Patentable Subject Matter

Patent-eligible subject matter is defined in Section 101 of the Patent Act:
Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful
improvement thereof, may obtain a patent therefor, subject to the
conditions and requirements of this title.
35 U.S.C. § 101. In choosing such expansive terms "modified by the comprehensive 'any,'
Congress plainly contemplated that the patent laws would be given wide scope." Diamond v.

Chakrabarty, 447 U.S. 303, 308 (1980).
Yet while the scope of Section 101 is broad, there is an "important implicit exception [to
it]: [l]aws of nature, natural phenomena, and abstract ideas are not patentable." Alice Corp. Pty.

Ltd v. CLS Bank Int'!, 134 S. Ct. 2347, 2354 (2014) (internal quotation marks and citation
omitted); see also Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1293
(2012). "Phenomena of nature, though just discovered, mental processes, and abstract
intellectual concepts are not patentable, [because] they are the basic tools of scientific and
technological work." Prometheus, 132 S. Ct. at 1293 (quoting Gottschalk v. Benson, 409 U.S.
63, 67 (1972)).
The Supreme Court has also recognized, however, that "too broad an interpretation of this
exclusionary principle could eviscerate patent law." Id.; see also Alice, 134 S. Ct. at 2354. This
is because "all inventions at some level embody, use, reflect, rest upon, or apply laws of nature,
natural phenomena, or abstract ideas." Prometheus, 132 S. Ct. at 1293; see also Alice, 134 S. Ct.
at 2354. To that end, it has explained that "an application of a law of nature, [natural phenomena

13

or abstract idea] to a known structure or process may well be deserving of patent protection."
Diamond v. Diehr, 450 U.S. 175, 187 (1981) (emphasis in original).
In terms of the process used to analyze patent eligibility under Section 101, the Federal
Circuit has explained that a court should first identify whether the claimed invention fits within
one of the four statutory classes set out in the statute: processes, machines, manufactures, and
compositions of matter. Ultramercial Ill, 772 F.3d at 713-14. The court must then assess
whether any of the judicially recognizable exceptions to subject matter eligibility apply,
including whether the claims are to patent-ineligible abstract ideas. Ultramercial Ill, 772 F.3d at
714. 8
In Alice Corp. Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347, 2354 (2014), the
Supreme Court confirmed the framework to be used in order to distinguish patents that claim
laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts:
First, we determine whether the claims at issue are directed to one
of those patent-ineligible concepts .... If so, we then ask, "[w]hat
else is there in the claims before us?" ... To answer that question,
we 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. . . . We have described step two of this analysis as a
search for an '"inventive concept"'-i.e., an element or
combination of elements that is "sufficient to ensure that the patent
in practice amounts to significantly more than a patent upon the
[ineligible concept] itself."
Alice, 134 S. Ct. at 2355 (quoting Prometheus, 132 S. Ct. at 1294-98) (citations omitted;

There is no dispute in this action that the claims at issue fall into one of the
applicable statutory classes. The dispute here is about whether the claims are drawn to a patentineligible abstract idea, and so the Court will focus its analysis on that issue.
14

alterations in original); see also Parker v. Flook, 437 U.S. 584, 594 (1978). Since Alice, the
Federal Circuit has recognized that "[d]istinguishing between claims that recite a patent-eligible
invention and claims that add too little to a patent-ineligible abstract concept can be difficult, as
the line separating the two is not always clear." DDR Holdings, LLC v. Hotels.com, L.P., 773
F.3d 1245, 1255 (Fed. Cir. 2014).

C.

Claim 1

The Court will first examine claim 1 of the '139 patent, which Defendants assert is
representative of all of the independent claims. (D.I. 9 at 4-5; D.I. 13 at 9-10) Claim 1 involves
a computer interface that allows a user to build a query that will be used to search for and retrieve
certain "text data objects" out of a set of such objects (e.g., a database or a spreadsheet). (See,
e.g., '139 patent, cols. 2:21-24, 7:25-40; 13:38-54) Construed in the light most favorable to

Plaintiff,9 claim 1 sets forth a method involving: (1) displaying the interface by "imaging" it on a
display (step a); (2) the use of the interface by "designating" values for search parameters and
"constructing" a sort order for the results (steps band c), and (3) the computer's process of
"selecting" text data objects that match the values (i.e., executing the search) and then "sorting"
them to match the sort order (steps d and e). (Id.)
In step a of claim 1 (the "imaging" step), the claim refers to a "query dialog box" that
appears on the display. (Id., claim 1) As described in the specification, a "query dialog box" is
an interface element in a personal computer. (See id., Fig. 3; id., cols. 3:62-64, 5:55-6:29)

9

For purposes of assessing the Motions, the Court will presume that the claims are
to be construed in the manner most favorable to Plaintiff. See Content Extraction, 776 F.3d at
1349. To the extent that the Court attributes meaning to certain claim terms herein, it does so in
this spirit, and is not intending to definitively construe any term (something that would occur
after a Markman hearing).
15

Figure 3 of the '139 Patent shows an example embodiment, in which the query dialog box is
designated as item 300:

322

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As described in the claim, the query dialog box has two primary characteristics. First, it
contains an area for a user to enter values for a search query of a database: "the query dialog box
displays each of a plurality of parameters associated with each of the text data objects [and]
forms a plurality of spaces for listing values associated with each displayed parameter[.]" (Id.,
col. 13 :42-45) In the example embodiment, this area is designated the "Build Query dialog box
(302)[,]" and appears on the left-hand side of Figure 3. (Id., col. 5:61-65) This dialog box

displays "parameters" that correspond to column headings in a table of text data objects. (Id.,
cols. 2:54-61, 4:4-6, 8:17-20) Figure 4 shows a table used in the embodiment, which includes
these column headings:
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(Id., col. 4:4-6) For example, the column heading "Assigned To" appears in the center of Figures
3 and 4; below it, in Figure 3, a pull-down menu allows a user to select the name of an assignee
to be used in the query. (See id., cols. 6:15-39, 7:24-31, Fig. 3(b) (showing a query for all tasks
assigned to "Johnson"))
The second characteristic of the query dialog box is that it includes a space for the user to
select a sort order for the data returned by the query: "the query dialog box ... forms a space for
selecting a sort order[.]" (Id., col. 13:42-46) In the embodiment shown by Figure 3, this is
displayed on the right hand side as the "Sort Order dialog box (312)"; the parameter named
"Issue" is checked and the designation "(1)" appears beside it, meaning that the results of the
query will be sorted first by that parameter. (Id., col. 6:40-60) If an additional box were
17

checked, such as the box next to "Due Date[,]" a "(2)" would appear beside that box, and the
results of the search query would be sorted first by "Issue" and then by "Due Date[.]" (Id., cols.
6:53-7:8)
The remaining steps of Claim 1, including steps b-e, encompass operations following the
display of the query dialog box, including the user's act of designating values for the search
parameters, the user's act of constructing the sort order, and the computer's task of actually
performing the query and sorting the results. The final outcome is a sorted list of text data
objects that were selected by the computer using the query constructed in the query dialog box.

(Id., claim 1) An example of such a list is shown in Figure 4(a), which reflects a query where the
"Assigned To" parameter was specified as "Johnson":

•

+

•

Fig. 4 (a)
('139 Patent, col. 4:7-10) 10

10

Note that claim 1 does not on its face claim as a step the actual display of the
sorted list as shown in Figure 4(a); that step is reserved for dependent claim 2. The method set
forth in claim 1 stops at step e, in which the results of the query are sorted by the computer prior
18

In short, claim 1 describes a user interface that allows a user to construct a query to search
a database or other collection of text-based information.

D.

Alice Step One as Applied to Claim 1

Defendants assert, pursuant to step one of the Alice framework, that claim 1 is directed to
the "well-known concept of displaying, classifying, and organizing unspecified information
(referred to as text data objects) in an unspecified transaction." 11 (D.I. 9 at 3; see also id. at 1
(asserting that "the claims of the '139 patent relate to the purely abstract idea of displaying,
classifying and organizing information")) In their opening brief, Defendants provided a
highlighted version of claim 1, which describes step a as directed to the abstract idea of
"displaying data," steps b and c as directed to the abstract idea of "classifying data," and steps d
and e as directed to "sorting and organizing data." (D .I. 9 at 3)

to any display.
11

Defendants here have articulated the alleged abstract idea in several different
ways-a not uncommon problem in relation to Section 101 motions. (Compare D.I. 9 at 2
(characterizing the claims as directed to "the claimed abstract concept of categorical data storage
and organization"), id. at 3-4 (characterizing claim 1 as being directed towards three abstract
ideas, including "displaying data," "classifying data," and "sorting or organizing data"), and D.I.
13 at 9 (describing a singular abstract idea of '"displaying,' 'classifying,' and 'sorting' data")
with Tr. at 19 (describing the abstract idea as "rapidly sort[ing] and format[ting] the display of
tabular information")); see also DDR Holdings, LLC, 773 F.3d at 1257 (noting defendants'
"varying formulations of the underlying abstract idea"); TriPlay, 2015 WL 1927696, at *8 n.8
(noting that the defendant had proposed numerous formulations of the alleged abstract idea in its
briefing related to a Section 101 motion). A movant's inability to clearly and uniformly
articulate the asserted abstract idea in question can make the Alice analysis difficult for the Court,
and can suggest weakness in the movant's overall position. Cf DDR Holdings, LLC, 773 F.3d at
1257. Here, the Court will apply the articulation of the abstract idea described in the text above,
which is set forth in the beginning of Defendants' opening brief. That articulation appears to be
the formulation that Defendants have put front and center here. The Court also notes that its
conclusions would remain unchanged were it to take into account any of Defendants' other
proposed formulations of the abstract idea.
19

The Federal Circuit has applied step one of the Alice test in a number of recent cases. In
analyzing claim 1 of the '139 patent, the Court will utilize the methods of analysis undertaken by
the Federal Circuit in a few of those recent cases.

1.

Ultramercial III

In its opinion in Ultramercial III, the Federal Circuit dealt with claims relating to "a
method for distributing copyrighted media products over the Internet where the consumer
receives a copyrighted media product at no cost in exchange for viewing an advertisement, and
the advertiser pays for the copyrighted content." Ultramercial III, 772 F.3d at 712. The
representative claim at issue involved eleven steps, which the Federal Circuit characterized as
follows:
(1) receiving copyrighted media from a content provider; (2)
selecting an ad after consulting an activity log to determine
whether the ad has been played less than a certain number of times;
(3) offering the media for sale on the Internet; (4) restricting public
access to the media; (5) offering the media to the consumer in
exchange for watching the selected ad; (6) receiving a request to
view the ad from the consumer; (7) facilitating display of the ad;
(8) allowing the consumer access to the media; (9) allowing the
consumer access to the media ifthe ad is interactive; (10) updating
the activity log; and (11) receiving payment from the sponsor of
the ad.

Id. at 714-15.
The Court determined that these claimed steps "recite[] an abstraction-an idea, having
no particular concrete or tangible form[,]" and that the claim was ultimately directed to an
abstract idea:
The process of receiving copyrighted media, selecting an ad,
offering the media in exchange for watching the selected ad,
displaying the ad, allowing the consumer access to the media, and

20

receiving payment from the sponsor of the ad all describe an
abstract idea, devoid of a concrete or tangible application.
Id. at 715. In coming to this conclusion, the Federal Circuit looked to the claim as a whole, and
found that "[a]lthough certain additional limitations, such as consulting an activity log, add a
degree of particularity, the concept embodied by the majority of the limitations describes only the
abstract idea of showing an advertisement before delivering free content." Id. (emphasis added);
see Hewlett Packard Co. v. ServiceNow, Inc., Case No. 14-cv-00570-BLF, 2015 WL 1133244, at
*5-6 (N.D. Cal. Mar. 10, 2015) (applying the "majority of the limitations" language from
Ultramercial III to analyze whether a claim was directed to an abstract idea).
Here, the Court cannot conclude that the "majority of the limitations" in claim 1 are
directed to the asserted abstract idea of "displaying, classifying, and organizing unspecified
information (referred to as text data objects) in an unspecified transaction." (D.I. 9 at 3) More
particularly, the Court simply disagrees with Defendants' characterizations as to how the asserted
abstract idea jibes with the actual language used in steps a-d.
For example, Defendants assert that step a is directed 12 to "displaying data"-i.e., "text
data objects[.]" 13 (D.I. 9 at 3) But step a involves displaying only a particular user interface for
interacting with a computer. No "text data objects" need be displayed in this step, and the only

12

With regard to the first step of the Alice test, Defendants at times assert that
certain claim language is "related to" the abstract idea, and at times refer to whether the language
is "directed ... toward" or "directed at" that abstract idea. (D.I. 9 at 3-4) Because the proper
question is whether the claims are "directed to" an abstract idea, the Court will apply that
language. Alice, 134 S. Ct. at 2355.
13

The "data" at issue in the claim, and in Defendants' characterization of the alleged
abstract idea, are "text data objects." (D.I. 9 at 3-4; see also '139 patent, claim 1 (claiming a
"method for using a computer system to sort and display text data objects") (emphasis added))
21

"data" that must be displayed is the interface itself. Step a is not directed to "displaying data."
Defendants next assert that steps b and c are directed to "classifying data" such as "text
data objects[.]" (Id. at 3-4) But construed in the light most favorable to Plaintiff, step bis
directed to only the user's act of entering in parameters for a search query. For instance,
following the example set forth in Figure 3, a user might enter the name "Johnson" into the
"Assigned To" field. In that operation, the text data objects are not being "classified" in any
meaningful sense; instead, the user is using the form to create a query that will be used to return
only certain information from a database. ('139 patent, col. 6:24-31) The data itselfremains
unchanged, and at this stage of the claim no query has yet been made to retrieve or sort the data
based on the specified parameters. Thus, step bis not directed towards "classifying" data. Nor is
step c, construed in the manner most favorable to Plaintiff. Instead, step c is directed to the use
of the "space for selecting a sort order" in the query dialog box to select a sort order (such as
choosing to sort results by "Issue"). (See id., col. 6:40-7:8; Fig. 3) That sort order is not actually
applied until step e of the claim.
Finally, absent completion of the claim construction process, the Court cannot conclude
that step d of the claim is directed to "sorting and organizing data" as asserted by Defendants.
(D.I. 9 at 4) Instead, as described in the claim, it appears that the computer "select[s]" certain
text data objects for display, based on the parameter values set by the user in step b. (Id., col.
7:33-45) Viewed in the light most favorable to Plaintiff, nothing on the face of step d indicates
that these objects are actually sorted or organized-they are "select[ed]" for the purpose of
displaying search results, nothing more. (See id., cols. 7:33-8:58 (describing, with regard to one
embodiment, the process of selecting, sorting, and displaying text data objects in response to a
22

query, and then returning to the query dialog box))
All told, the only claim element that is clearly directed to the asserted abstract idea as
defined by Defendants is step e, which involves sorting the selected text data objects for display.
Thus, while Defendants argue that the asserted abstract idea permeates the claim, in fact only a
small minority of the claim language can be fairly said to be directed to the abstract idea as
articulated by Defendants.
2.

DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014)

Next, the Court notes that, unlike the claims held not to be patent eligible in Ultramercial
Ill, the solution claimed in claim 1 has a "particular concrete or tangible form." Ultramercial Ill,
772 F.3d at 715. To underscore this conclusion, the Court finds it helpful to compare the claim
to the key claim at issue in the Federal Circuit's recent decision in DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014).
In DDR Holdings, the Federal Circuit strongly implied that the claims of a patent relating
to the handling of Internet hyperlinks in an online store were not directed to an abstract idea
under step one 14 of the Alice test. DDR Holdings, 773 F.3d at 1256-59. The claims in DDR

14

District courts have disagreed as to whether DDR Holdings should be read as
having concluded that the claim at issue there was not directed to an abstract idea under step one
of Alice, or whether the decision was solely intended to convey that, pursuant to step two of
Alice, the claim amounted to a patent-eligible application of an abstract idea. Compare Affinity
Labs ofTexas, LLC v. DirecTV, LLC, No. 6:15-CV-0030-WSS-JCM, 2015 WL 3764356, at *15
(W.D. Tex. June 2, 2015) (describing DDR Holdings as concluding that "that the patent at issue
was probably not directed to an abstract idea") and Jericho Sys. Corp. v. Axiomatics, Inc., Civil
Action No. 3:14-CV-2281-K, 2015 WL 2165931, at *5 (N.D. Tex. May 7, 2015) (applying the
decision in DDR Holdings as part of the court's Alice step one analysis), with BASCOM Global
Internet Servs., Inc. v. AT & T Mobility LLC, -F.Supp.3d-, No. 3:14-cv-3942-M, 2015 WL
2341074, at *11 (N.D. Tex. May 15, 2015) (stating that "it should be noted that the Federal
Circuit did not decide in DDR Holdings whether the composite web page at issue was directed
toward an abstract idea" under step one of the Alice test). The Court has previously concluded
23

Holdings related to a "solution" to an "Internet-centric problem": "the problem of retaining

website visitors that, if adhering to the routine, conventional functioning of Internet hyperlink
protocol, would be instantly transported away from a host's website after 'clicking' on an
advertisement and activating a hyperlink." Id. at 1257-59. Once the visitor was transported
away from the host's website, the host risked losing "control over the attention of the
customer[.]" Id. at 1258. The claimed invention was intended to solve this problem by using a
destination website that looks and feels like the host's own website:
[A]sserted claim 19 recites a system that, among other things, 1)
stores "visually perceptible elements" corresponding to numerous
host websites in a database, with each of the host websites
displaying at least one link associated with a product or service of a
third-party merchant, 2) on activation of this link by a website
visitor, automatically identifies the host, and 3) instructs an
Internet web server of an "out-source provider" to construct and
serve to the visitor a new, hybrid web page that merges content
associated with the products of the third-party merchant with the
stored "visually perceptible elements" from the identified host
website.
Id. at 1257. The representative claim at issue in DDR Holdings included specific limitations

implementing this system that resulted in the generation of these "new, hybrid web
page[s]"-limitations relating to the content and ownership of the web pages at issue, and to the
manner in which the computer server at issue received, stored and retrieved certain data relating
to those web pages. Id. at 1249-50, 1257.
The DDR Holdings Court held that "these claims stand apart" from those in other recent
Section 101 opinions, even though they too "involve both a computer and the Internet[,]"

that, at a minimum, the decision in DDR Holdings strongly implies that the claims at issue were
not directed to an abstract idea. See TriPlay, 2015 WL 1927696, at *12 n.13.
24

because the claims "do not merely recite the performance of some business practice known from
the pre-Internet world along with the requirement to perform it on the Internet." Id. at 1257. It
distinguished these claims from those at issue in Ultramercial III because the claims in DDR
Holdings did "not broadly and generically claim 'use of the Internet' to perform an abstract

business practice (with insignificant added activity)"; instead, they "specify how interactions
with the Internet are manipulated to yield a desired result-a result that overrides the routine and
conventional sequence of events ordinarily triggered by the click of a hyperlink." Id. at 1258.
Thus, in DDR Holdings, the "claimed solution [was] necessarily rooted in computer technology
in order to overcome a problem specifically arising in the realm of computer networks." Id. at
1257; see also Essociate, Inc. v. Clickbooth.com, LLC, No. SACV 13-01886-JVS (DFMx), 2015
WL 1428919, at *6 (C.D. Cal. Feb. 11, 2015).
Like the claims at issue in DDR Holdings, claim 1 of the '139 patent is not infused with
language referencing a generic business practice that is unmoored from any particularized,
concrete application. Instead, claim 1 references a specific "claimed solution" (the use of a query
dialog box that has particular features) to an identified problem (that the design of a custom
database query using the then-available software involved a time-consuming process, resort to
which would distract a user from the user's line of thought). ('139 patent, cols. 1:32-45, 2:6-46;
see also D.I. 10 at 13-14) And, as in DDR Holdings, this proffered solution is one "rooted in

computer technology in order to overcome a problem specifically arising in the realm of
computer[s.]" DDR Holdings, 773 F.3d at 1257. Claim 1's concrete solution changes the
equation for the computer user: a query dialog box displays parameters from a table and contains
a space for a user to build a query by listing values associated with those parameters, along with a
25

space for a user to select a sort order for the results of that query. ('139 patent, col. 13:42-46)
According to the patent, this new interface replaces or supplements prior art query-building
options, allowing even an inexperienced user to more easily and rapidly change the content of
tables containing text data objects (e.g., a database) and to immediately see the results. (See id,
cols. 2:21-52, 8:59-64) When construed in the light most favorable to the patentee, this claim
element sets forth a sufficiently articulated structure that solves a problem with the computers of
the prior art, such that it is not directed to an abstract idea. 15
Defendants contend that, unlike the patent at issue in DDR Holdings, "[t]he problem that
the inventor faced here was not a problem of computers[,]" because "[g]raphical user interfaces
already exist[ed]." (Tr. at 83-84) Instead, Defendants argue, the problem that the patentee faced
was the need to "more rapidly sort and filter data[,]" an improvement the patentee referred to as
"contextual data modeling[.]" (Id) According to Defendants, this was "not a computer
problem" but an "intellectual conceptual problem." (Id)
The Court disagrees. The problem that the inventor faced and articulated in the patent
was particular to the realm of computer database programs: the cumbersome user interfaces of
prior art programs with regard to the task of building queries for a database. In an attempt to
solve that problem, the patentee purported to invent an improved user interface, which he hoped
would allow users to interact with computer databases more efficiently and effectively. With this
increased interactivity, the patentee aspired to enable users to better understand the relationships
between data in the computer database-i.e., to engage in contextual data modeling. ('139

15

One can contrast the query dialog box as claimed with a hypothetical, less
concrete version, which might consist of "imaging, on a display device, an interface for inputting
parameter values and a search order."
26

patent, col. 1: 15-2:46) But claim 1 does not claim the process of contextual data modeling itself.
It claims a particular, improved computer interface (the query dialog box) that would permit a

user to make use of contextual data modeling. 16 Cf Research Corp. Techs., Inc. v. Microsoft

Corp., 627 F.3d 859, 868-69 (Fed. Cir. 2010) (finding that patents claiming methods for
rendering a halftone image of a digital image by comparing, pixel by pixel, the digital image
against a blue noise mask were subject matter eligible, and that "inventions with specific
applications or improvements to technologies in the marketplace are not likely to be so abstract
that they override the statutory language and framework of the Patent Act"). 17

3.

Internet Patents Corp. v. Active Network, Inc., -F. 3d-, No. 20141048, 2015 WL 3852975 (Fed. Cir. June 23, 2015)

16

Although Defendants describe the idea of "contextual data modeling" as entirely
divorced from the realm of computers, (Tr. at 83-84), that is not the way that the term is used in
the patent specification. To the contrary, the specification discusses the concept of "contextual
data modeling" in the context of a discussion regarding "currently-available database
management systems and spreadsheet programs" for computers, and the problems that existed
with those systems and programs. (Id., col. 2:21-46) The patent describes the problem with
then-current computers as being that database users needed additional "interactive capabilities"
so that they could "[p]erceiv[e] ... relationships [between data objects] rapidly, and in the
context of other data and analytic intentions in the user's mind[.]" ('139 patent, col. 2:43-46)
This goal of understanding the relationships between objects is referred in the patent as
"contextual data modeling"-but that concept is relevant to the patent only in relation to "the
analysis of individual text data objects as well as entire databases of text data objects" and how
that analysis can be "enhanced." (Id., col. 2:34-46)
17

At oral argument, Defendants' counsel attempted to distinguish the decision in
DDR Holdings in the following way: "[t]he invention in DDR Holdings, what the Court held
was that's a technological problem in a particular technological environment and other people
have been trying to solve it; however, [the patentee was] going to improve that technology, the
internet and commerce on the internet by taking a different approach[.]" (Tr. at 40 (emphasis
added)) But claim 1 can plausibly be read as fitting just that same bill. The patentee
"improve[d]" the then-existing programs for the sorting and display of computer databases or
tables by taking a different approach, and describing a method that used a specific interface
purporting to be different from other interfaces that were in use at the time.
27

Finally, the Court also finds support for its conclusion regarding step one in the recent
Federal Circuit decision of Internet Patents Corp. v. Active Network, Inc., -F. 3d-, No. 20141048, 2015 WL 3852975 (Fed. Cir. June 23, 2015). There, in articulating the nature of its
inquiry under Alice's step one, the Federal Circuit used the patent specification's description of
the invention to "ascertain[] the basic character of the subject matter" of the patent. Internet

Patents, 2015 WL 3852975 at *4-6. The Internet Patents Court identified "the character of the
claimed invention" as "the idea of retaining information in the navigation of online forms[,]" due
to a statement in the specification that "[t]he most important aspect of ... the present invention is
... that it maintains data state across all [browser] panes [containing data inputted by a user]."

Id. at *4-5 (citation omitted). The Court thereafter concluded, without further analysis, that "the
character of the claimed invention is an abstract idea: the idea of retaining information in the
navigation of online forms." Id. 18
Applying this approach to step one here, the Court finds that the '139 patent specification
is similarly helpful, in that it indicates that step a is the "most important aspect" of claim 1. The
specification takes pains to explain that the databases and spreadsheets were already practiced in
the prior art, but that the methods available for users to interact with these databases and
spreadsheets were flawed. ('139 patent, cols. 1:15-2:46) The specification goes on to describe

18

In some ways, the Alice step one analysis used in Internet Patents seems to differ
from that used in Ultramercial III. For example, at step one, the Internet Patents Court seemed
to ignore the portions of the claim that existed in the prior art and focus only on the portions that
were asserted to be the "most important aspect" of the invention; after doing so, it then
considered whether that portion of the claim was directed to an abstract idea. See Internet
Patents, 2015 WL 3852975 at *4-5. This seems to be a different approach from assessing
whether the "majority of the limitations" in the entire claim-at-issue "recites an
abstraction"-i.e., the approach described in Ultramercial III. Ultramercial III, 772 F.3d at 715.
28

the core of the invention as follows: "[t]he present invention permits the use of a computer
system rapidly to reformat displays of text data objects in terms of parameters chosen by the user,
without the aid of an instruction manual and without extensive computer training." (Id, col.
2:49-52) This statement demonstrates that the "most important aspect" of the invention is not the
alleged abstract idea of "displaying, classifying, and organizing unspecified information"
generally, which was practiced in the prior art. Instead, it is the creation of an improved user
interface for more easily interacting with database and spreadsheet programs on a computer,

which is embodied by step a of claim 1. And, for the reasons described above, the description of
that interface in the claim, read in the light most favorable to Plaintiff, contains sufficient
particularity such that it is not directed to an abstraction.

4.

Conclusion

Under any of the forms of analysis set out above, claim 1 is not directed to an abstract
idea.

E.

Alice Step Two as Applied to Claim 1

Having determined that claim 1 is not directed to an abstract idea under varying
formulations of step one of the Alice test, the Court could end its analysis. Because the law in
this area is still evolving, however, the Court will also address step two of the Alice test. That is,
the Court will assess whether, assuming arguendo that (as Defendants assert) claim 1 is in fact
directed to the abstract idea of "displaying, classifying, and organizing unspecified information
(referred to as text data objects) in an unspecified transaction[,]" (D.I. 9 at 3), the claim
nevertheless contains sufficient additional elements to transform it into a patent-eligible
application of the abstract idea.

29

1.

Claim 1 Contains an Inventive Concept

Step two of the Alice framework asks whether the claims contain an "inventive concept,"
meaning "an element or combination of elements that is sufficient to ensure that the patent in
practice amounts to significantly more than a patent upon the [ineligible concept] itself." Alice,
134 S.Ct. at 2355 (internal quotation marks and citation omitted). The additional elements
within the claim, apart from the abstract idea itself, must involve more than '"well-understood,
routine, conventional activit[ies]' previously known to the industry." Alice, 134 S.Ct. at 2359
(quoting Prometheus, 132 S. Ct. at 1294); see also Prometheus, 132 S. Ct. at 1300 ("[S]imply
appending conventional steps, specified at a high level of generality, to ... abstract ideas cannot
make those ... ideas patentable."). The purpose of the "inventive concept" requirement is to
"ensure that the claim is more than a drafting effort designed to monopolize the abstract idea."
Alice, 134 S. Ct. at 2357 (internal quotation marks, citation, and brackets omitted). Neither

"limiting the use of an abstract idea to a particular technological environment[,]" nor simply
stating an abstract idea and adding the words "apply it[,]" will transform an abstract idea into a
patent-eligible invention. Alice, 134 S. Ct. at 2358 (internal quotation marks and citations
omitted).
The Court concludes that the presence of the query dialog box limitation in claim 1 of the
'139 patent amounts to the inclusion of an inventive concept, as it is a meaningful limitation on
the underlying idea of "displaying, classifying, and organizing unspecified information (referred
to as text data objects) in an unspecified transaction." (D.I. 9 at 3) As set forth above, this
interface is described with particularity. From these articulated limitations, it is possible to
determine what constitutes a query dialog box and what does not. Moreover, the specification

30

suggests that the query dialog box was intended to represent a specific departure from the way in
which this task was performed in the prior art. (' 139 patent at Abstract & cols. 1:32-45, 2:6-46)
This shows that claim 1 does not "broadly and generically claim use of [a computer] to perform"
the abstract idea. DDR Holdings, 773 F.3d at 1258. Instead, it "specif[ies] how interactions with
the [computer] are manipulated to yield a desired result" by describing a particular interface to be
used on a computer, and how certain aspects of that interface are used to improve the functioning
of the computer-by allowing the user to interact with the computer in a more efficient way. Id;

cf Internet Patents, 2015 WL 3852975 at *5 (holding that a claim did not disclose an inventive
concept because it "contain[ed] no restriction on how the result is accomplished. The mechanism
for [applying the abstract idea] is not described, although this is stated to be the essential
innovation.") (emphasis added). This makes clear that claim 1 is "more than a drafting effort
designed to monopolize the abstract idea itself." Alice, 134 S. Ct. at 2357 (internal quotation
marks, brackets, and citation omitted).
In arguing to the contrary that the claim fails step two of the Alice test, Defendants make
several arguments. The Court will address each briefly. 19

19

In addition to the arguments discussed below, Defendants also raised arguments
regarding the machine-or-transformation test, to which Plaintiff responded. (D.I. 9 at 14-19; D.I.
10 at 10-12; D.I. 13 at 6-8; Tr. at 36-37) The Court does not find resort to the machine-ortransformation test to be particularly helpful under these circumstances, where the objective of
the patent is to improve the function of computer software. See DDR Holdings, 773 F.3d at
1258-59 (addressing a claim that is similar in some ways to claim 1 of the '139 patent, and
holding that it was patent eligible, without applying the machine-or-transformation test, after
questioning the test's helpfulness as to evaluation of claims involving computer-related
limitations); cf Ultramercial III, 772 F.3d at 717 (noting that the test "is not conclusive"); TQP
Dev., LLC v. Intuit Inc., CASE No. 2:12-CV-180-WCB, 2014 WL 651935, at *5-7 (E.D. Tex.
Feb. 19, 2014) (Bryson, J., sitting by designation) (holding that a claim that did not appear to
meet either prong of the machine-or-transformation test was nonetheless patent eligible because
it resulted in "concrete and valuable effects in the field of electronic communications"); Card
31

2.

Defendants' "Pen and Paper" Argument

At oral argument, Defendants asserted that the steps of the process could be performed, in
at least an analogous fashion, by two people using pen and paper. (Tr. at 23-24; Defendants'
Demonstrative Exhibit 1at22-24; see also Tr. at 19-21, D.I. 9 at 17) In Defendants' posited
example, the first person fills out a "Query Form" that mirrors Figure 3 of the patent (steps a-c of
the claim) and gives it to the second person; the second person then manually selects items from
a table of information and sorts them, based on the request as specified in the Query Form (steps
d-e of the claim). (Tr. at 23-24; Defendants' Demonstrative Exhibit 1 at 22-24)
While Defendants' pen and paper analogy has some initial appeal, it is ultimately flawed,
and it is does not demonstrate that claim 1 lacks an inventive concept. This proffered pen and
paper implementation of the claim is not sufficiently analogous to the claimed invention, because
it does not accomplish the goals of the invention or produce its actual effect.
For example, a goal of the invention was to allow a user to perform "contextual data
modeling[,]" which involved "[p]erceiving ... relationships [between objects in a database or
spreadsheet] rapidly, and in the context of other data and analytic intentions in the user's mind
(including those generated intuitively during the processing)[.]" ('139 patent, col. 2:43-46) The
patent sought to enable this technique by speeding up and simplifying the interactions between

Verification Servs. v. Citigroup, Inc., 13 C 6339, 2014 WL 4922524, at *5-6 (N.D. Ill. Sept. 29,
2014) (holding that a claim was patent eligible where it resulted in "concrete effects in the field"
even if it did not involve "the physical transformation of matter"). Several recent cases have
addressed software claims without applying the machine-or-transformation test. See Alice, 134
S. Ct. at 2359-60; Internet Patents, 2015 WL 3852975 at *4-6; OIP Techs., 2015 WL 3622181 at
*3-4; Content Extraction, 776 F.3d at 1346-49; see also Intellectual Ventures I LLC v. Capital
One Bank (USA), -F.3d-, No. 2014-1506, 2015 WL 4068798, at *3-7 (Fed. Cir. July 6,
2015).
32

the user and the computer. (Id., col. 2:29-52) The pen and paper method set forth by Defendants
fails to achieve this goal, because the person who fills out the hypothetical paper form must still
wait for another person to manually compile and sort the results of the query set forth on the
form. Like the prior art systems described in the '139 patent, "it may take considerable time to
produce a table reflecting the changes" resulting from this manual query, and during that time
"the user's current line of analytic reasoning may be lost." (Id., col. 1:40-45) This defeats the
goal of streamlining the user's interaction with a computer database in order to enable the user to
perform contextual data modeling.
Another goal of the invention of claim 1 was to solve the specific problem that prior art
database and spreadsheet programs were difficult for users to interact with. Defendants'
proffered method performed using pen and paper simply does not address the problem of
interacting with computer spreadsheet and database programs.
Yet another goal of the invention is to allow even an inexperienced user to interact with a
database program without aid of an instruction manual or extensive computer training, and
without the need for a second person to act as a database operator. ('139 patent, cols. 1: 15-2:52)
Defendants' pen and paper method, however, involves a second person in addition to the user,
who essentially acts as the database operator and actually carries out the query. (Tr. at 23-24;
Defendants' Demonstrative Exhibit 1 at 22-24)
Thus, although it may be technically correct to say that humans could use a pen and paper
to perform a sorting process that is similar in some ways to the process called for by claim 1, it is
hard to assert that this would "produce the actual effect of the invention." California Inst. of
Tech. v. Hughes Commc 'ns Inc., 59 F. Supp. 3d 974, 994-95 (C.D. Cal. 2014) (noting that a

33

"pencil and paper" test is "unhelpful for computer inventions" in that while "[m]any inventions
could be theorized with pencil and paper ... pencil and paper can rarely produce the actual effect
of the invention.").
Moreover, Defendants have not cited any case where the Supreme Court or the Federal
Circuit have held that a claim is patent ineligible based solely on the fact that an analogous
method could be performed using pen and paper. In Planet Bingo, LLC v. VKGS LLC, 576 F.
App'x 1005 (Fed. Cir. 2014), for example, the Federal Circuit held that certain claims were
directed to a patent ineligible abstract idea under step one of the Alice test, where those claims
could be "carried out by a human being using a pen and paper" if the computer-related
limitations were ignored. 576 F. App'x at 1007-08 (citation omitted). But the Planet Bingo
Court also found that the claims were otherwise "similar" to the claims at issue in Bilski and
Alice. Id. at 1008. The Court further determined that the "patent's recitation of a computer
amounts to a mere instruction to 'implemen[t]' an abstract idea 'on ... a computer[.]'" Id. at
1008 (quoting Alice, 134 S. Ct. at 2358). Likewise, in CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1372-73 (Fed. Cir. 2011 ), the Court noted that "[a]ll of [the claimed]
method steps can be performed in the human mind, or by a human using a pen and paper." But
that decision also turned on the fact that the claim was not limited to any particular solution to
the problem described in the patent, and that it "extend[ed] to essentially any method of
[achieving the objective of the claims,] even methods that can be performed in the human mind."
Id. at 1372; see also id. at 1374-76, 1376 n.4 (noting that, while the claim was addressed to a
"method for detecting credit card fraud," "the claims contain no hint as to how the information
regarding the Internet transactions will be sorted, weighed, and ultimately converted into a

34

useable conclusion that a particular transaction is fraudulent"). Thus, both Planet Bingo and
Cybersource may be easily distinguished from the situation at hand, where the patentee claimed a

specific solution to a prior art problem, using the query dialog box and related limitations. 20

3.

Defendants' Argument that the Computer-Related Elements of Claim
1 Are Conventional

Defendants next argue that the computer-related elements of the claims cannot represent
an inventive concept because they are "conventional" or "generic," and that they "don't require a
substantial and meaningful role for the computer other than simply performing the method on the
computer." (Tr. at 24-25, 31-32) In Alice, the Supreme Court held that a claim must do more
than include a requirement to use "a generic computer to perform generic computer functions[,]"
or functions that are "purely conventional." 134 S.Ct. at 2359.
Claim 1 of the '139 patent, read in the light most favorable to Plaintiff, claims more than
simply using a generic computer to perform conventional functions. The Court does agree with
Defendants that, as described in the specification, the individual elements used to build the
claimed features, considered alone, are generic and conventional. (See, e.g., '139 patent, col.
4:65-5:23 (describing the computer system itself), 5:55-59 (explaining that the query dialog box
can be built using conventional programming in a Microsoft Windows environment)) But on
some level, every invention can be built from conventional components. Here, however, there is
no support for the idea that the query dialog box itself is a "conventional component." As the

20

The Federal Circuit briefly addressed this issue again in its recent decision in
Intellectual Ventures I LLC, 2015 WL 4068798 at *4. There, the Court held that "the budgeting
calculations at issue here are unpatentable because they 'could still be made using a pencil and
paper[.]'" Id. (quoting Cybersource, 654 F.3d at 1371). But, like the claims in Planet Bingo and
Cybersource, the claims in Intellectual Ventures "recit[ed] no more than generic computer
elements performing generic computer tasks[.]" Id.
35

specification sets forth, spreadsheet and database management programs at the time of invention
did not contain a single, unified interface allowing an ordinary user to quickly create queries of
the data in a data source. (Id., col. 1:32-45) The inventive concept of the claims is the creation
of a specific interface for that purpose. (Id.; see also id., col. 2:6-20) This claimed interface, the
query dialog box, represents a departure from the conventional operation of computers at the
time-despite the fact that the individual elements of the interface are conventional, and the fact
that it runs on a generic computer.
In their opening brief, Defendants also cite to SiRF Tech., Inc. v. Int 'l Trade Comm 'n,
601F.3d1319, 1333 (Fed. Cir. 2010) for the proposition that "'[i]n order for the addition of a
machine to impose a meaningful limit on the scope of a claim, it must play a significant part in
permitting the claimed method to be performed, rather than function solely as an obvious
mechanism for permitting a solution to be achieved more quickly, i. e, through the utilization of a
computer for performing calculations."' (D.I. 9 at 15) Similar directives have appeared in more
recent Federal Circuit cases. See OIP Techs., 2015 WL 3622181 at *3 (stating that "relying on a
computer to perform routine tasks more quickly or more accurately is insufficient to render a
claim patent eligible") (citation omitted); Intellectual Ventures I LLC v. Capital One Bank
(USA), -F.3d-, No. 2014-1506, 2015 WL 4068798, at *4 (Fed. Cir. July 6, 2015) ("[O]ur

precedent is clear that merely adding computer functionality to increase the speed or efficiency of
the process does not confer patent eligibility on an otherwise abstract idea.").
However, claim 1 of the '139 patent is not directed simply to using a computer to perform
the abstract idea more quickly than could be done without a computer. Instead, it claims a
specific interface for allowing a user to more easily (and, to be sure, more quickly) interact with

36

a computer, in a way preferable to the methods used in the prior art. 21 In that sense, claim 1 is
really about how to improve the functioning of the computer itself. Cf Alice, 134 S.Ct. at 2359
(holding that claims were not patent eligible in that the claims did not "improve the functioning
of the computer itself').

4.

The Query Dialog Box is Not Extra-Solution Activity

Defendants argue that the query dialog box "amounts to no more than an insignificant
extra-solution activity[.]" (D.I. 9 at 17) The Court disagrees. Far from being "insignificant
extra-solution activity[,]" the query dialog box is the solution that the patentee invented, after
being faced with the problems relating to the prior art.

5.

Claim 1 Does Not Unduly Preempt the Alleged Abstract Idea

Defendants contend that "although the claims at issue in this case may not preempt all
conceivable ways to sort data ... the claims nevertheless are so broad, with such generic
computer elements for input, processing, and output, that they do preempt virtually all practical
uses." (D.I. 13 at 5) While the claims have some breadth, the Court cannot conclude, on this
record, that they would unduly preempt the application of the abstract idea. As described in the
specification, prior to the patent, the abstract idea at issue here was practiced using "database
management systems[,]" which allowed a user to display, classify, and organize data in a manner

21

(D.I. 10 at 14; Tr. at 59-61; see also, e.g., '139 patent, col. 2:8-12 ("[E]xisting
systems and programs for sorting data may not adequately serve the needs of some users,
especially those without specialized training or experience attempting quickly to discern
relationships between and among elements in large sets of data."); id., col. 2:29-33 ("Users of
databases ... need the ability to relate interactively with the tables to quickly revise the format to
match the rapid and complex probing of the thought process."); id., col. 2:49-52 ("The present
invention permits the use of a computer system rapidly to reformat displays of text data objects in
terms of parameters chosen by the user, without the aid of an instruction manual and without
extensive computer training."))
37

different than that which is claimed. ('139 patent, cols. 1: 15-2:20)
The query dialog box claimed in the '139 patent is an asserted improvement on this prior
art process, representing a particular technical solution to a prior art problem. 22 ('139 patent, cols.
1:46-2:52) Prospective inventors can solve the same problem in different ways, such as by using
a structure other than a dialog box, or by creating a different user interface in which the user
specifies search criteria and sort criteria at separate times or in other ways. 23 DDR Holdings, 773
F.3d at 1259.
6.

Other Cases Cited by Defendants

At oral argument, Defendants cited Loyalty Conversion Sys. Corp. v. Am. Airlines, Inc.,
66 F. Supp. 3d 829, 838-39 (E.D. Tex. 2014) for the proposition that "requiring the use of a
graphical user interface, such as a webpage[,] without more" is insufficient to provide an
inventive concept. (Tr. at 33-34) The Court in Loyalty Conversion dealt with two patents that
paralleled each other, which were held to be patent ineligible because they were directed to the
abstract idea of "currency exchange, as applied to the exchange of currencies in the form of
loyalty award credits of different vendors" (such as frequent flyer miles). Loyalty Conversion, 66
F. Supp. 3d at 836-40. The representative claims of the first patent involved a method or

22

Because the query dialog box is a particular solution to an identified prior art
problem, the Court rejects Defendants' argument that the query dialog box serves only to "limit
the application of the abstract idea to a narrow particular technological environment[,] a
Microsoft Windows desktop computer[.]" (Tr. at 25-26)
23

The Court notes that its determination with regard to preemption is contingent
here on viewing the claims in the light most favorable to the patentee. In this case, that has
resulted in a narrow construction of "query dialog box" that is limited to a "dialog box" as
described in the specification. Cf Intellectual Ventures, 2015 WL 4068798 at *6 (holding that
an "interactive interface[,]" construed broadly, was insufficient to form an inventive concept).
38

program to convert credits from one loyalty program to another. Id. at 831-33. The second
patent was directed to a method involving the use of a "graphical user interface" for the awards
program covered by the first patent; that graphical user interface consisted of a web page that
would show a quantity of award credits, with an "option to convert" some of those credits to
credits for another loyalty program. Id. at 833-34. The Court held that the addition of the user
interface limitations amounted to "[t]he recitation of the use of the web pages and the Internet,"
which was "insufficient to avoid a holding of unpatentability." Id. at 844 n.6; see also id. at 839.
Claim 1 of the '139 patent can be distinguished from graphical-user-interface-related
claims at issue in Loyalty Conversion in at least two different ways.
First, the Loyalty Conversion claims were unspecific. They were directed to a web page
that included a display of loyalty award credits and an "option to convert" them-two things that
would be needed for any implementation of the underlying abstract idea. See id. at 833-34. In
contrast, claim 1 of the '13 9 patent discloses an improved user interface for the creation of a
database search query-a process that the patent describes as having been practiced in other ways
on computers prior to the invention of the new user interface. ('139 patent, col. 1:32-45) The
new user interface was intended to solve a specific problem with prior art interfaces, not to
preempt all possible ways of practicing the asserted abstract idea on a computer. (Id., col. 2:4965; see also id. at claim 1)
Second, the claims at issue in Loyalty Conversion "d[id] not describe any novel manner
of performing that function other than referring to the use of routine operations performed by a
specially programmed computer[,]" and the portions of the claims that referred to computer
elements "d[id] not include any inventive measure that 'purport[ ed] to improve the functioning

39

of the computer itself[.]"' Loyalty Conversion, 66 F. Supp. 3d at 845 (quoting Alice, 134 S.Ct. at
2359). Claim 1 of the '139 patent does describe such an "inventive measure"-the query dialog
box.
For these reasons, the Loyalty Conversion opinion does not persuade the Court that claim
1 of the '139 patent lacks an inventive concept. 24

F.

The Remaining Claims

Defendants' Motions are directed to all 19 claims of the '139 patent. (D.I. 9 at 1) The
Court has determined that, construed in the light most favorable to Plaintiff, claim 1 is not
directed to the asserted abstract idea, and that, even if it were, the claim plausibly includes an

24

Defendants also cited Enfish, LLC v. Microsoft Corp., 56 F. Supp. 3d 1167 (C.D.
Cal. 2014) and Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 56 F. Supp. 3d 813 (E.D. Va.
2014), each of which held that claims involving databases or tabular information were not patent
eligible. (Tr. at 21-22, 35) But those cases are distinguishable for the same reasons as is Loyalty
Conversion. Both of those cases generally involved patents that did not claim any improvement
over the prior art other than use of the abstract idea itself, which was implemented in an
unspecific manner using conventional techniques. See Enfish, 56 F. Supp. 3d at 1179-80;
Amdocs, 56 F. Supp. 3d at 820, 823, 825.
One portion of Amdocs deserves additional analysis. Of the several patents that the
Amdocs court held were not patent eligible, one involved a "graphical user interface" ("GUI")
limitation that is similar in some ways to the query dialog box limitation of the '139 patent.
Amdocs, 56 F. Supp. 3d at 823-24. The claim required a "graphical user interface" that "list[ed]
a plurality of available functions[,]" included a "plurality of fields," and allowed a user to
"choose at least one of the listed functions" and "at least one of [the] fields[.]" Id. at 823. But
the Court in Amdocs determined that these elements served only to call for a "conventional" GUI.
Id. at 824. And the majority of claim elements were directed to an abstract idea that did not
relate to any particular user interface. See id. As such, the GUI elements in Amdocs could be
seen as a drafting effort to cover the abstract idea. In contrast, at this stage, claim 1 of the '139
patent must be seen as being directed towards an improvement on a conventional user interface,
one that amounts to more than a drafting effort to supply patent eligibility to an otherwise patentineligible abstract idea. This is evident from the claim, in which the user interface element is
specified with some particularity, and from the specification, which focuses on the improved user
interface, and makes clear that the asserted abstract idea itself is not new and was performed
using a computer in the prior art.
40

inventive concept sufficient to render it patent eligible. Alice, 134 S.Ct. at 2355. Defendants
assert that claim 1 is representative of the remaining independent claims, (D.I. 9 at 4-5; D.I. 13 at
9-10), and have not identified any differences in the remaining independent or dependent claims
that would render them patent ineligible following a determination that claim 1 is patent eligible.
For that reason, the Court need not address the remaining claims.
IV.

CONCLUSION
For the foregoing reasons, the Court recommends that Defendants' Motions be DENIED.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.

Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b). The failure of a party to object to legal conclusions may result in the loss
of the right to de novo review in the district court. See Henderson v. Carlson, 812 F.2d 874, 87879 (3d Cir. 1987); Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1 (3d Cir. 2006).
The parties are directed to the Court's Standing Order for Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the District Court's website,
located at http://www.ded.uscourts.gov.

Dated: July 15, 2015
Christopher J. Burke
UNITED STATES MAGISTRATE JUDGE

41