DietGoal Innovations LLC v. Arby's Restaurant Group, Inc. et al

Filing 407

SUR-REPLY to Reply to Response to Motion re 300 MOTION to Dismiss Defendants' Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6) for Failure to State a Claim Based on Unpatentable Subject Matter MOTION to Dismiss Defendants' Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6) for Failure to State a Claim Based on Unpatentable Subject Matter Plaintiff DietGoal Innovations LLC's Sur-Reply in Opposition to Defendants Google Inc. and Jimmy John's Franchise LLC's Motion to Dismiss for Failure to State a Claim Based on Unpatentable Subject Matter filed by DietGoal Innovations LLC. (Bukovcan, Niknaz)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
DIETGOAL INNOVATIONS LLC,
Plaintiff,
v.
ARBY’S RESTAURANT GROUP, INC.,
et al.,
Defendants.

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Civil Action No. 2:11-cv-00418-DF
Jury Trial Demanded

PLAINTIFF DIETGOAL INNOVATIONS LLC’S SUR-REPLY IN OPPOSITION
TO DEFENDANTS GOOGLE INC. AND JIMMY JOHN’S FRANCHISE LLC’S
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
BASED ON UNPATENTABLE SUBJECT MATTER

BUETHER JOE & CARPENTER, LLC
Christopher M. Joe (Lead Counsel)
Eric W. Buether
Brian A. Carpenter
Niky Bukovcan
Mark D. Perantie
1700 Pacific Avenue
Suite 2390
Dallas, Texas 75201
Telephone:
[phone]
Facsimile:
[phone]
ATTORNEYS FOR PLAINTIFF
DIETGOAL INNOVATIONS LLC

TABLE OF CONTENTS

I.

INTRODUCTION .............................................................................................................. 1

II.

ARGUMENTS .................................................................................................................... 2
A.

Defendants Do Not Meet the Standard for Dismissal under 12(b)(6) and Fail to
Demonstrate That Claim Construction Would Not Sufficiently Address Any
Alleged Concerns Regarding the ‘516 Patent ......................................................... 2

B.

Defendants Rely on Unavailing Case Law to Support Their Strained Theory ....... 3
1.
2.

C.
III.

The Claims of the ‘516 Patent are Distinct from the Claims in
Cybersource ................................................................................................ 3
Defendants’ Reliance on Fort Properties and Dealertrack are Equally
Inapposite .................................................................................................... 7

Defendants’ Other Repeated Contentions Continue to be Unavailing ................... 9

CONCLUSION ................................................................................................................. 10

i

TABLE OF AUTHORITIES
Cases
Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009) ....................................................................................................... 2
Bilski v. Kappos,
130 S. Ct. 3218 (2010) ..................................................................................................... 10
CyberSource Corp. v. Retail Decisions, Inc.,
654 F.3d 1366 (Fed. Cir. 2011)...................................................................... 1, 3, 4, 5, 6, 8
Dealertrack, Inc. v. Huber,
2012 U.S. App. LEXIS 1161 (Fed Cir. Jan. 20, 2012) .............................................. 1, 7, 8
Diamond v. Chakrabarty,
447 U.S. 303 (1980) ......................................................................................................... 10
Fort Properties, Inc. v. American Master Lease LLC,
2012 U.S. App. LEXIS 3900 (Fed. Cir. Feb. 27, 2012) ............................................ 1, 7, 8
In re Alappat,
33 F.3d 1526 (Fed. Cir. 1994)...................................................................................... 9, 10
In re Bilski,
545 F.3d 943 (Fed. Cir. 2008)............................................................................................ 3
In re Nurijten,
500 F.3d 1346 (Fed. Cir. 2007).......................................................................................... 3
Kaufman Company, Inc. v. Lantech, Inc.,
807 F.2d 970 (Fed. Cir. 1986)............................................................................................ 2
Research Corp. Techs., Inc. v. Microsoft Corp.,
627 F.3d 859 (Fed. Cir. 2010).......................................................................................... 10
SiRF Tech., Inc. v. Int’l Trade Comm’n.,
601 F.3d 1319 (Fed. Cir. 2010)........................................................................................ 10
Ultramercial, LLC v. Hulu, LLC,
657 F.3d 1323 (Fed. Cir. 2011)........................................................................ 2, 7, 8, 9, 10

ii

Statutes
35 U.S.C. § 101 ...................................................................................................................... 1, 3, 8
35 U.S.C. § 112 ........................................................................................................................ 9, 10
35 U.S.C. § 282 .............................................................................................................................. 2
FED. R. CIV. P. 12....................................................................................................................... 1, 2

iii

Pursuant to FED. R. CIV. P. 12(b)(6), Plaintiff DietGoal Innovations LLC (“DietGoal”)
DietGoal files this sur-reply in opposition to Defendants Google Inc. (“Google”) and Jimmy
John’s Franchise LLC’s (“Jimmy John’s”) (collectively “Defendants”) Motion to Dismiss for
Failure to State a Claim Based on Unpatentable Subject Matter and requests that the Court deny
the motion.
I.

INTRODUCTION

In order to form different eating habits and to make different meal choices, an
individual’s conscious knowledge regarding the health and nutritional impact of food items and
meals must change. U.S. Patent No. 6,585,516 (“the ‘516 Patent”) provides a computerized meal
planning tool that assists and trains the individual to make different and better informed
decisions regarding their meal choices. Prior to the present invention, the dietary tool taught by
the ‘516 Patent did not exist. See Col. 1:8-10 and Abstract. This computerized method and
system cannot be performed or implemented without the use of a computer.
The Defendants either misunderstand the invention or intentionally misconstrue its scope
as even a plain read of the claims cannot support an interpretation that the method and system
can be implemented or performed in the human mind or simply through use of pen and paper. In
a failed attempt to divorce the invention from its essential computerized components, the
Defendants construe terms and phrases out of context in order to support their ill-defined theory.
Acceptance of such contentions requires a stretch of the imagination.
In their reply, in addition to repeating a number of misleading contentions, Defendants
rely on three inapposite cases: CyberSource, Fort Properties, and Dealertrack, all of which
serve only to demonstrate the vast contrast between the claims in this case and those that may
well deserve rejection through the “course ineligibility filter” of § 101.

PLAINTIFF DIETGOAL INNOVATIONS LLC’S SUR-REPLY IN OPPOSITION TO DEFENDANTS
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Any concerns regarding the patent are easily overcome with proper construction of any
disputed claim terms and should appropriately be addressed at a later time.

If the Court is so

inclined as to grant the Defendants’ motion, DietGoal requests that the Court reserve any such
ruling until claim construction is complete.
II.
A.

ARGUMENTS

Defendants Do Not Meet the Standard for Dismissal under 12(b)(6)
and Fail to Demonstrate That Claim Construction Would Not
Sufficiently Address Any Alleged Concerns Regarding the ‘516 Patent

The validity of a patent is presumed such that “[e]ach claim of a patent is presumed valid
independently of the validity of other claims.” 35 U.S.C. § 282. The Defendants have a high
burden of establishing invalidity by clear and convincing evidence. Kaufman Company, Inc. v.
Lantech, Inc., 807 F.2d 970, 973 (Fed. Cir. 1986). In deciding a motion to dismiss, the court
must take the plaintiff’s factual allegations as true and construe those facts in light most
favorable to it. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). When there are wellpleaded factual allegations, “a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Id. at 1950.
The ‘516 Patent is drawn to a computerized meal planning system and method that
addresses the need in the field to provide for an effective dietary tool. The Defendants’ accused
products each practice the method and implement the system taught by the ‘516 Patent.
Defendants’ motion cannot change this fact and only demonstrates a desperate attempt to avoid
the inevitable. When the facts are drawn in the light most favorable to DietGoal, the Defendants’
motion falls short of the requisite standard for dismissal under Rule 12(b)(6).
Additionally, if inclined to grant the motion, the Court should not determine subject
matter eligibility of the ‘516 Patent prior to claim construction. See Ultramercial, LLC v. Hulu,
LLC, 657 F.3d 1323, 1325 (Fed. Cir. 2011) (“a definition of the invention via claim construction
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can clarify the basic character of the subject matter of the invention. Thus, claim meaning may
clarify the actual subject matter at stake in the invention and can enlighten, or even answer,
questions about subject matter abstractness.”).

Although the eligibility of the ’516 Patent is

evident without claim construction, dismissal without the same would be premature. See In re
Bilski, 545 F.3d 943, 951 (“[C]laim construction…is an important first step in a § 101 analysis”),
reversed on other grounds; cf. In re Nurijten, 500 F.3d 1346, 1352 (“As in any other context in
which the scope and meaning of the claims bears on the ultimate determination at hand, we must
start by considering the issue of claim construction.”). The Defendants fail to show any evidence
to the contrary or why such construction must be expedited.
B.

Defendants Rely on Unavailing Case Law to Support Their Strained
Theory
1.

The Claims of the ‘516 Patent are Distinct from the Claims in

CyberSource
The Defendants’ continued reliance on CyberSource Corp. v. Retail Decisions, Inc., 654
F.3d 1366 (Fed. Cir. 2011) is misguided. In CyberSource, the court first analyzed a method
claim that covered “any method of detecting credit card fraud based on information relating past
transactions to a particular “Internet address.” Id. at 1372. The first step in the claim required
“obtaining information about other transactions that have utilized an Internet address that is
identified with the [] credit card transaction.” Id. The court noted that the claim did not cover
the initial creation of a database, and found that “even if some physical steps are required to
obtain information from the database (e.g., entering a query via a keyboard, clicking a mouse),
such data-gathering steps cannot alone confer patentability.” Id. The second step called for
“constructing a map of credit card numbers…” that could be performed by writing down a list of
credit card transactions. Id. The court noted that “there is no language in claim 3 or in the []
patent’s specification that requires the constructed ‘map’ to consist of anything more than a list
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of a few credit card transactions.” Id. The third step required “utilizing the map of credit card
numbers to determine if the credit card transaction is valid,” which the court noted encompassed
“literally any method for detecting fraud.” Id. at 1373 (emphasis in original).
The court noted that every single step of this claim could be performed in the human
mind. Id. The court held that such methods are “unpatentable not because there is anything
wrong with claiming mental method steps as part of a process containing non-mental steps, but
rather because computational methods which can be performed entirely in the human mind are…
‘basic tools of scientific and technological work’ that are free to all.” Id. (bold emphasis added).
The second claim the court analyzed was a “Beauregard claim” directed to a computer
readable medium “containing program instructions for a computer to perform a particular
process” that recited the steps of “obtaining credit card information,” “verifying the credit card
information,” “constructing a map,” and “utilizing the map…to determine if the credit card
transaction is valid.” Id. at 1373-74. Despite its recitation of “a computer readable medium,” the
court treated this claim as a method claim and found it to be equally unpatentable for the same
reasons. Id. at 1374-75.
Unlike the claims in CyberSource where all of the recited method steps could be
performed entirely in the human mind, the claims of the ‘516 Patent cannot be performed or
implemented without a computerized system or program. Independent Claims 1 and 2, which
are not method claims, recite “a system of computerized meal planning” that comprises a
computerized “User Interface,” a “Database of food objects,” and “at least one Picture Menus”
and “a Meal Builder,” respectively. The “at least one Picture Menus” must be structured so that
it “displays on the User Interface meals from the Database that a user can select from to meet
customized eating goal.” The “Meal Builder” must be structured so that it “displays on the User

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Interface meals from the Database, and wherein a user can change content of said meals and
view the resulting meals’ impact on customized eating goals.”

Such a system cannot be

“performed in the human mind.” The human mind cannot be a computerized system with a User
Interface, a Database, and either a “Picture Menus” or a “Meal Builder” that allow for interactive
displaying of meals from the Database.
Relying on CyberSource, the Defendants seek to confuse the system claims with method
claims in order to force these claims into conformity with their misconstrued theory. Motion at
10; Reply at 4. However, unlike the seemingly Beauregard structured claim in CyberSource that
required the performance of method steps, such as “obtaining credit card information,”
“verifying the credit card information,” “constructing a map,” and “utilizing the map…to
determine if the credit card transaction is valid,” the system claims in this case do not recite any
steps. The requirement that the Picture Menus be displayed in an interactive manner that enables
a user to select “meals from the Database…to meet customized eating goals” is not a recitation
of a step but descriptive functional language that defines the structure of the “Picture Menus”
and the “Meal Builder.”
The actual method claims of the ‘516 Patent, “computerized planning that can influence
behavior,” require a computerized program to perform each specific step. See Claims 12 and 13.
First, the computerized program must perform the step of “preparing a Database of food
objects.” Unlike the claims in CyberSource that did not cover the initial creation of a database,
the Claims here require database creation. The system claims similarly require the “Database of
food objects” to be structured such that it, for example, is “organizable into meals.” See Claim 1.
In one embodiment, the specification teaches that the “Food Database is a database of foods that
have been compiled.” Col. 2:25-26. In another embodiment, it can “incorporate a behavior

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analysis” that “comprises compiling and analyzing specific information on a user’s instinctive
preferences and tendencies…[t]hus, the Meal Database and Food Database can be modified to
include meals that the user has indicated he likes” or alternatively “meals that the user dislikes
can be…deleted from the Meal Database and the Food Database.” Col. 2:33-45; see also
previously submitted Exhibit B, ‘810 Application, at 1 ¶ 0010 (“a computer database is provided
including presentations of a plurality of objects, the presentations being displayable in successive
groups, each group including a plurality of presentations. A computer program is then caused to
display successive groups, together with display of graphics associated with each of the
groups.”).
Second, the computerized program must perform the step of, as recited in Claim 12
“allowing a user to choose meals from one or more Picture Menus, which display on a User
Interface meals comprised from the food objects from the Database,” or, as recited in Claim 13,
“allowing the user to change the meals using a Meal Builder, which displays on the User
Interface the food objects from the meals from the Database, corresponding to the Picture
Menus.”

Unlike the “constructing a map” step in the CyberSource claims that could be

performed by simply using a pen and paper, the step of allowing a user to choose or change
meals requires that the selection be from either a “Picture Menus” or a “Meal Builder” that
“displays on the User Interface” meals or food objects from the Database. A computerized user
interface cannot be written down with pen and paper nor made selectable through such means.
The system and method require input from the user in order to provide a customized displayable
output. Figure 10 is an exemplary embodiment that depicts a user interface that shows the
complexity of the claimed computerized system and method:

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Thus, not a single step of the method or any aspect of the claimed system can be
performed in the human mind. The invention is dependent on the use of a specialized computer.
Even if the Defendants’ unreasonable contention is credited and the final step of the method
claim is deemed to be performed in the human mind, the performance of a single step in the
mind is not enough to overcome the “course eligibility filter” of § 101. See Ultramercial, 657
F.3d at 1326.
2.

Defendants’ Reliance on Fort Properties and Dealertrack are
Equally Inapposite

Without analysis, defendants rely on Fort Properties, Inc. v. American Master Lease
LLC, 2012 U.S. App. LEXIS 3900 (Fed. Cir. Feb. 27, 2012) to support their misguided
contentions. In Fort Properties, the claims were directed towards a “method of creating a real
estate investment instrument” that did not require the use of a computer. Id. at *12. Each of the
claims recited the conceptual steps of “aggregating real properly into a real estate portfolio,
dividing the interests in the portfolio into a number of deedshares, and subjecting those shares to

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a master agreement.” Id. Although the claims were tied to the physical world through the use of
“deeds, contracts, and real property,” the performance of the steps themselves were abstract
because they did not recite “sufficient physical activity to constitute patentable subject matter.”
Id. at *12-14. The claims that contained the additional limitation of requiring a computer to
“generate a plurality of deedshares,” was also found to be ineligible because the use of a machine
in that case did not “impose meaningful limits on the claim’s scope” and “did not play a
significant part in permitting the claimed method to be performed.”

Id. at *16 (quoting

CyberSource, 654 F.3d at 1375).
Defendants’ reliance on Dealertrack, Inc. v. Huber, No. 2009-1566, 2012 U.S. App.
LEXIS 1161 (Fed. Cir. Jan. 20, 2012)1 is equally unavailing. In Dealertrack, the court held that
claims to a method of applying for credit did not satisfy § 101 because the claims were “silent as
to how a computer aids the method, the extent to which a computer aids the method, or the
significance of a computer to the performance of the method.” Id. at *17.
In contrast, the present invention requires the use of a computer to implement the system
and to perform the method. Without the computer, the Database of food objects cannot be
prepared and the user would not be allowed to choose meals from Picture Menus or change
meals using a Meal Builder, both of which display a complex user interface that interactively
displays meals from the Database of food objects. The claimed invention “requires intricate and
complex computer programming” and “specific application to the Internet and cyber-market
environment,” which advances the field of computerized meal planning tools. See Ultramercial,
LLC v. Hulu, LLC, 657 F.3d 1323, 1328 (Fed. Cir. 2011); see also Response at 15, 18-19.

1

Defendants unjustly criticize DietGoal for not discussing Dealertrack in its response; however,
Defendants did not previously cite this case nor was DietGoal aware of its existence until now.

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C.

Defendants’ Other Repeated Contentions Continue to be Unavailing

“[T]he purpose of the Patent Act is to encourage innovation, and the use of broadly
inclusive categories of statutory subject matter ensures that ‘ingenuity…receive[s] a liberal
encouragement.”

Ultramercial, 657 F.3d at 1326 (Fed. Cir. 2011).

The Defendants’

misconstruction of the patent seeks to limit the broad scope of § 101 by taking phrases and
DietGoal's arguments out of context in order to support their ill-defined theory. For example, the
Defendants contend that the ‘516 Patent does not meet eligibility requirements because the
invention does not provide detailed programming specification, a disclosure issue addressed
under § 112. Reply at 7. However, no defined “level of programming complexity [is] required
before a computer-implemented method can be patent-eligible. Ultramercial, 657 F.3d at 1328.
In re Alappat, 33 F.3d 1526, 1545 (Fed. Cir. 1994).
In this case, the specification provides sufficient support for the level of programming
required to implement and perform the claimed invention. For example, in one embodiment, a
computer program selects “n” pairs or other multiples of objects based on specific criteria,
including size, shape, color, texture or other identifying or functional variations. The user then
inputs and records choice of one of each pair or more presented on screen…Interactive software
algorithms then utilize the user input data and integrate such data with predetermined or derived
criteria to create a plan for behavior modification that can be manually overridden and then
evaluated.” ‘810 Application at 6 ¶ 0077. In another embodiment, the software program must
be written so that “[c]hosen items can be identified and moved onto any virtual surface, platform,
table, or plate as realistic images by ‘click and drag’ or other means…Alternatively, computergenerated objects, or other object combinations selected from external but linked exchangeable
database modules, are presented either randomly or selected for visual evaluation…” Id. at ¶

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0078. Such requirements provide sufficient disclosure to enable one skilled in the art, such as a
computer or website programmer, to implement the present invention. See 35 U.S.C. § 112.
The Defendants also suggest that the invention does not disclose a useful application and
that even if it does such an application is not relevant because it is not specifically stated in the
claims. Reply at 9. However, in Research Corp. the court found recitation in the specification
of the application of the patent to the field of computer technology enough to support eligibility.
Research Corp. Techs., Inc. v. Microsoft Corp., 627 F.3d 859, 869 (Fed. Cir. 2010) (finding).
The Defendants also contend that the invention does not meet the “machine-ortransformation” test, a non-dispositive, limited inquiry which the patent satisfies. See Bilski v.
Kappos, 130 S. Ct. 3218, 3226 (2010). A claimed process is patentable under this test if it (1) “is
tied to a particular machine or apparatus,” or (2) “transforms a particular article into a different
state or thing.” SiRF Tech., Inc. v. Int’l Trade Comm’n., 601 F.3d 1319, 1332 (Fed. Cir. 2010).
As explained above, the present invention depends upon the use of a computer, without which
the claims would be meaningless. For example, a computerized program must perform the step
of “preparing a Database of food objects” by creating the database, “allowing a user to choose
meals from one or more Picture Menus” or “using a Meal Builder” both of which interactively
display selectable options on a complex User Interface. See, e.g., Claims 12 and 13. Such a
computer program transforms a generalized computer into a specialized computer for meal
planning. See Alappat, 33 F.3d 1526, 1545 (Fed. Cir. 1994); Ultramercial, 657 F.3d at 1329 (“A
programmed computer contains circuitry unique to that computer”).
III.

CONCLUSION

“Congress intended statutory subject matter to include anything under the sun that is
made by man.” Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980). Defendants’ motion seeks
to improperly limit the broad scope of § 101 and should be denied.
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Dated: March 5, 2012

Respectfully submitted,
BUETHER JOE & CARPENTER, LLC

By: /s/ Niky Bukovcan
Christopher M. Joe (Lead Counsel)
State Bar No. 00787770
[e-mail]
Eric W. Buether
State Bar No. 03316880
[e-mail]
Brian A. Carpenter
State Bar No. 03840600
[e-mail]
Niky Bukovcan
WA State Bar No. 39403
[e-mail]
Mark D. Perantie
State Bar No. 24053647
[e-mail]
1700 Pacific Avenue
Suite 2390
Dallas, Texas 75201
Telephone:
[phone]
Facsimile:
[phone]
ATTORNEYS FOR PLAINTIFF
DIETGOAL INNOVATIONS LLC

CERTIFICATE OF SERVICE
The undersigned hereby certifies that all counsel of record who are deemed to have
consented to electronic service are being served with a copy of this document via the Court’s
CM/ECF system per Local Rule CV-5(a) on this 5th day of March, 2012. Any other counsel of
record will be served by facsimile transmission and first class mail.
/s/ Niky Bukovcan
Niky Bukovcan

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