The Software IP Report
DDR and Bascom Don’t Save Internet Monitoring Patents
By Charles Bieneman
Categories: Patent Eligibility, Software Patents, The Software IP Report
Patent claims directed to monitoring Internet activity “to increase the objectivity of the search results returned responsive to a search for talented original content creators” were held invalid under the Alice/Mayo abstract idea test and 35 U.S.C. § 101. Accordingly, in Talent Broker Tech. LLC v. Musical.ly, Inc., CV 17-08532 SJO (MRWx) (C.D. Cal. May 22, 2018), the Court granted the defendant’s Rule 12 Motion to Dismiss, finding claims of US 8,510,154 and US 8,630,894 patent-ineligible.
This was the defendant’s second motion to dismiss, the first having been granted with the plaintiff given the significantly more than an old and fundamental idea. As before, on the present motion the court found “that the claims of the Patents-in-Suit are directed to the abstract idea of organizing, differentiating and retrieving information.” For example, claim 1 of the ’894 patent, said the court,
recites a “system for communicating content item information,” through the use of a processor configured to: (1) determine a geographic designation; (2) control transmission of a notification to a “first assessor”; (3) display an notification that content is ready to be assessed; (4) make the content available for assessment; and (5) update the information for the content based on the assessment.
These recitations “describe[] the abstract process of providing content to reviewers who then assess and rate it.” Other independent claims were similarly abstract.
Turning to the second prong of the Alice test, the plaintiff tried to rely on Berkheimer v. HP Inc. (Fed. Cir. Feb 8, 2018), to argue that “a genuine issue of material fact whether the Asserted Claims contained an inventive concept” precluded granting the motion to dismiss. The court disagreed. The plaintiff had, “throughout its pleadings,” relied “repeatedly and extensively on the Federal Circuit’s [2016] decision in Bascom Global Internet Services, Inc. v. AT&T Mobility LLC,” which in turn relied on DDR Holdings, LLC v. Hotels.com, L.P.
The claims here were distinguishable from Bascom, because they just used conventional technology in a generic way and did not solve a technical solution on the Internet. The plaintiff argued that the claims improved conventional technology by (1) improving memory and processing resources, (2) improving remote accessibility, and (3) increasing network efficiency. The court dismissed the first two alleged improvements as simply “inherent benefits of a client-server network model.” And the plaintiff provided no factual support for the third purported benefit, network efficiency.
Interestingly, the plaintiff had submitted a purported expert declaration with which the court had no truck. The declarant did not hold himself out as a person of ordinary skill in the art but rather provided “a legal opinion on patent-eligibility.”
opportunity to file an amended complaint providing further allegations that the patent claims were directed to