My Health, Inc. v. ALR Technologies, Inc.

Filing 78

ORDER ADOPTING 66 and 69 REPORT AND RECOMMENDATIONS; Granting 12 MOTION to Dismiss for Lack of Personal Jurisdiction, Improper Venue and Failure to State a Claim filed by ALR Technologies, Inc., and 25 MOTION to Dismiss for Failure to State a Claim filed by McKesson Technologies Inc. and ORDERED that My Health complaint against Defendants are Dismissed With Prejudice.. Signed by Judge Robert W. Schroeder, III on 3/27/2017. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
MY HEALTH, INC.,
Plaintiff,
v.
ALR TECHNOLOGIES, INC.,
Defendant.
INTOUCH TECHNOLOGIES, INC.
Defendant.
DEVILBISS HEALTHCHARE, LLC
Defendant.
MYNETDIARY, INC.
Defendant.
MCKESSON TECHNOLOGIES INC.
Defendant.

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CIVIL ACTION NO. 2:16-CV-00535-RWS
(LEAD CASE)

CIVIL ACTION NO. 2:16-CV-00536-RWS

CIVIL ACTION NO. 2:16-CV-00544-RWS

CIVIL ACTION NO. 2:16-CV-00866-RWS

CIVIL ACTION NO. 2:16-CV-00881-RWS

ORDER ADOPTING REPORTS AND RECOMMENDATIONS
OF UNITED STATES MAGISTRATE JUDGE AND
GRANTING MOTIONS TO DISMISS
Before the Court are two Reports and Recommendations of United States Magistrate Judge
Roy S. Payne. The first recommends that Defendant DeVilbiss Healthcare, LLC’s Motion to
Dismiss Under Fed. R. Civ. P. 12(b)(6) (Case No. 2:16-cv-544; Docket No. 15) be granted because
the claims of asserted U.S. Patent No. 6,612,985 (“the ’985 Patent”) are drawn to ineligible subject

matter under 35 U.S.C. § 101. Docket No. 66 1 (“Rep.”) at 1. The second recommends that motions
to dismiss filed by other Defendants in this consolidated action also be granted on the same
grounds. 2 Docket No. 69 at 1. Plaintiff My Health, Inc. (“My Health”) has filed written objections
to both Reports (Docket Nos. 72 (“Obj.”) and 73). 3 The Court reviews the objected-to portions of
the Reports de novo. 28 U.S.C. § 636(b)(1)(C).
In the Report, the Magistrate Judge held that claim 1 of the ’985 Patent is representative.
Rep. at 3. At step one of the Alice inquiry, he found that claim 1 is directed to the abstract idea of
a “method for tracking compliance with treatment guidelines.” Id. At step two of the Alice inquiry,
the Magistrate Judge held that claim 1 does not provide an inventive concept under any plausible
construction. Id. at 6. Accordingly, he found this case can be adjudicated without the benefit
claim construction. Id. He found the ’985 Patent is drawn to ineligible subject matter and
recommended that the Motions to Dismiss be granted. Id. at 7.
In its objections, My Health argues that Defendants have not established the
representativeness of claim 1. Obj. at 2. My Health denies that any claim of the ’985 Patent is
directed to an abstract idea. Id. at 5–6. My Health argues that dismissal is inappropriate in this
case because a factual dispute remains as to the scope of preemption and because the Court has
not construed the claims. Id. at 6–8. Finally, My Health argues that the claims of the ’985 Patent
provide an inventive concept at least because claims 1–3 cannot be performed entirely by humans
and because claim 7 and its dependents explicitly require a computer. Id. at 8–9.

1

Unless specifically indicated otherwise, “Docket No.” refers herein to the docket in lead Case
No. 2:16-cv-535.
2

The other motions are Case No. 2:16-cv-535, Docket Nos. 12 (ALR) and 25 (McKesson), and
Case No. 2:16-cv-536, Docket No. 13 (InTouch).
3

Docket No. 73 includes the entirety of Docket No. 72 and adds an introductory section that is not
relevant to the § 101 analysis.
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For the reasons that follow, Plaintiff’s objections are OVERRULED, and the Motions to
Dismiss are GRANTED.
First, claim 1 is representative of the other claims of the ’985 Patent because the other
claims in the ’985 Patent do not differ significantly from claim 1. See Mayo Collaborative Servs.
V. Prometheus Labs., Inc., 132 S. Ct. 1289, 1295 (2012) (taking as representative claim 1 or the
patent asserted in that case and ignoring the differences between claim 1 and other claims as
irrelevant to § 101 analysis). Plaintiff’s objections display the nine claims of the ’985 Patent as
three sets of three claims (i.e., 1–3, 4–6 and 7–9). Obj. at 3–5. The three sets are almost identical
to one another. See id. They differ only to the extent that claim 1 is drawn to a method; claim 4,
to a system; and claim 7, to a computer readable medium. These differences, by themselves, are
immaterial to the § 101 analysis. Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347, 2353, 2359
(2014) (holding invalid under § 101 claims to a method, system and computer-readable medium
based on analysis of a representative method claim).
Second, the claims of the ’985 Patent are directed to the abstract idea of tracking
compliance with treatment guidelines. The claims of the ’985 Patent involve the concept of
tracking compliance with treatment guidelines as shown by the preambles of the independent
claims, each of which announces that the method, system or computer readable medium is “for
tracking compliance with treatment guidelines.” E.g., ’985 Patent at col. 15:52–53. Plaintiff
argues that tracking compliance with treatment guidelines is not a “fundamental economic or
longstanding commercial practice.” Obj. at 6. Even if not a fundamental practice in business,
tracking compliance with treatment guidelines is a fundamental and longstanding practice in
medicine. That a practice may be longstanding in medicine as opposed to in business does not
make it any less an abstract idea.

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The conclusion that the ’985 patent is directed to an abstract idea is confirmed by the fact
that it is does not improve the functioning of a computer. See Apple, Inc v. Ameranth, Inc., 842,
F.3d 1229, 1241 (Fed. Cir. 2016) (“Alternatively, the claims are not directed to a specific
improvement in the way computers operate.”). In its objections, My Health writes, “The ’985
patent claims are not abstract because they are limited to a ‘new and useful’ application of
computing and networking equipment to improve remote health care monitoring.” Obj. at 6. My
Health admits that the purported improvement of the ’985 Patent is to “remote health care
monitoring” and not to the “computing and networking equipment.” If the claims recite a “new
and useful application” as My Health suggests, the limitations of the claims will reduce the abstract
concept to a patent-eligible application. But whether the claims are sufficiently limited is
addressed in step two of the Alice inquiry. In sum, the Court agrees with the Magistrate Judge that
the claims of the ’985 Patent are directed to an abstract idea.
Third, whether the claims of the ’985 Patent “pre-empt all forms of navigating a computer
network,” Obj. at 7, is not a question of fact material to the present analysis. “Navigating a
computer network” is not the abstract idea to which the claims are directed, and the scope of the
claims’ preemption of that idea is immaterial. Moreover, “the absence of complete preemption
does not demonstrate patent eligibility.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d
1371, 1379 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 2511 (2016). My Health’s objection is
therefore without merit.
Fourth, claim construction is not necessary to find the ’985 Patent invalid under § 101 at
the motion-to-dismiss stage. The Magistrate Judge found that no plausible construction of the
claims rescues their patent-eligibility. Rep. at 6. Although My Health objects to this conclusion,
it fails to put forward any proposed construction of any term in the ’985 Patent—much less a

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construction that is both plausible and cures the abstractness of the claims. 4 Although legitimate
claim-construction disputes may make adjudication of patent eligibility inappropriate on a motion
to dismiss, see Rockstar Consortium US LP, Inc. v. Samsung Elecs. Co., Case No. 2:13-cv-894JRG, 2014 WL 1998053, at *3 (E.D. Tex. May 15, 2014) (citation omitted), no such dispute is
presented in the case at bar.
Finally, the Magistrate Judge correctly found that the claims of the ’985 Patent do not
provide an inventive concept. My Health’s objection to this finding centers on the idea that
computers are necessary to the claims such that the “claims 1–3 . . . cannot be accomplished by a
human mind” and “the computer is integral [to] and required of [claim 7].” Obj. at 9. The
objection is without merit because the mere involvement of a generic, general-purpose computer
is insufficient to provide an inventive concept. Alice, 134 S. Ct. at 2358–59. Although the capacity
to be performed entirely by a human mind is a strong indicator of the patent-ineligibility of a claim,
My Health provides no authority supporting the converse proposition that a single method step
that may not be performable by a human mind bars a finding of ineligibility. My Health does not
persuade the Court that the ’985 Patent provides a non-routine or non-generic arrangement of
computer components or that the limitations of the claims otherwise meaningfully limit the abstract
concept of tracking compliance with treatment guidelines.

4

To the extent that My Health’s statement that “one of ordinary skill in the art would understand
that claims 1–3 of the ’985 patent contain special programming code” is a proposed construction
of the claim, the Court rejects it as implausible. Claim 1 contains no mention of a computer, a
program, or any programming code, much less “special” programming code. If My Health means
implementing the method of claim 1 on a computer requires programming code, that is true of
every claim to software, many of which have been found patent-ineligible, and does not save the
validity of the claims.
Page 5 of 6

CONCLUSION
Having made a de novo review of those portions of the Magistrate Judge’s Reports and
Recommendations (Docket Nos. 66 and 69) to which Plaintiff has filed written objections, the
Court has found no error. Accordingly, the Magistrate Judge’s findings of fact and conclusions of
law are ADOPTED as those of the Court.
Also before the Court is Defendant MyNetDiary, Inc.’s Motion to Dismiss (Case No. 2:16cv-866, Docket No. 12). That Motion also requests that the Court dismiss the complaint because
the ’985 Patent is drawn to ineligible subject matter. For the same reasons stated above, the Court
finds that MyNetDiary, Inc.’s Motion should be GRANTED.
.
It is therefore
ORDERED that the Motions to Dismiss (Case No. 2:16-cv-535, Docket Nos. 12 and 25;
Case No. 2:16-cv-536, Docket No. 13; Case No. 2:16-cv-544, Docket No. 15 and Case No. 2:16cv-866, Docket No. 12) are GRANTED. It is further
ORDERED that My Health’s complaints against ALR Technologies, Inc., InTouch
Technologies, Inc., DeVilbiss Healthcare, LLC, MyNetDiary, Inc. and McKesson Technologies
Inc. are DISMISSED WITH PREJUDICE.
SIGNED this 27th day of March, 2017.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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