Case 2:19-cv-01444-GW-KS Document 51 Filed 10/01/19 Page 1 of 15 Page ID #:802
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES - GENERAL
`Case No. CV 19-1444-GW-KSx
`Title
`BlackBerry Limited v. Twitter, Inc.
`
`Date October 1, 2019
`
`Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE
`Javier Gonzalez
`None Present
`Tape No.
`Deputy Clerk
`Court Reporter / Recorder
`Attorneys Present for Plaintiffs:
`Attorneys Present for Defendants:
`None Present
`None Present
`PROCEEDINGS:
`IN CHAMBERS - FINAL RULING ON DEFENDANT TWITTER,
`INC.'S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P.
`12(B)(6) [39]
`
`Attached hereto is the Court’s Final Ruling. Defendant’s Motion is GRANTED IN PART and DENIED
`IN PART.
`
`CV-90 (06/04)
`
`CIVIL MINUTES - GENERAL
`
`Page 1 of 1
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`Initials of Preparer
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`JG
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`BlackBerry Limited v. Twitter, Inc.; Case No. 2:19-cv-01444-GW-(KSx)
`Final Ruling on Motion to Dismiss First Amended Complaint
`
`
`
`I. Background
`
`Plaintiff BlackBerry Limited (“BlackBerry”) filed suit against Twitter, Inc. (“Twitter”)
`on February 27, 2019, alleging infringement of seven patents. Docket No. 1; see also Docket
`No. 36 (First Amended Complaint).
`
`Twitter has moved to dismiss all of BlackBerry’s patent infringement claims under 35
`U.S.C. § 101. Docket No. 39-1. Twitter’s motion has been fully briefed. See BlackBerry’s
`Opposition in support of Twitter’s Motion to Dismiss, Docket No. 40; Twitter’s Reply in support
`of its Motion to Dismiss, Docket No. 43.
`For the reasons stated in this Order, the Court would DENY-IN-PART and GRANT-IN-
`PART with or without leave to amend, depending on the particular patent, as further
`articulated herein.
`II. Legal Standard
`A. Motion to Dismiss (Rule 12(b)(6))
`Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim upon
`which relief can be granted. Fed. R. Civ. P. 12(b)(6). A complaint may be dismissed for failure
`to state a claim for one of two reasons: (1) lack of a cognizable legal theory; or (2) insufficient
`facts under a cognizable legal theory. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see
`also Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008) (“Dismissal
`under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or
`sufficient facts to support a cognizable legal theory.”).
`In deciding a Rule 12(b)(6) motion, a court “may generally consider only allegations
`contained in the pleadings, exhibits attached to the complaint, and matters properly subject to
`judicial notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). The court must
`construe the complaint in the light most favorable to the plaintiff, accept all allegations of
`material fact as true, and draw all reasonable inferences from well-pleaded factual allegations.
`Gompper v. VISX, Inc., 298 F.3d 893, 896 (9th Cir. 2002); Sprewell v. Golden State Warriors,
`266 F.3d 979, 988 (9th Cir. 2001), amended on denial of reh’g, 275 F.3d 1187 (9th Cir. 2001);
`Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). A court is not required to
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`accept as true legal conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662,
`678 (2009). Where a plaintiff facing a Rule 12(b)(6) motion has pleaded “factual content that
`allows the court to draw the reasonable inference that the defendant is liable for the misconduct
`alleged,” the motion should be denied. Id.; Sylvia Landfield Trust v. City of Los Angeles, 729
`F.3d 1189, 1191 (9th Cir. 2013). But if “the well-pleaded facts do not permit the court to infer
`more than the mere possibility of misconduct, the complaint has alleged – but it has not show[n]
`. . . the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (citations omitted).
`B. Patent Eligibility under 35 U.S.C. § 101
`An invention or a discovery is patentable if it is a “new and useful process, machine,
`manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C.
`§ 101. “In choosing such expansive terms . . . Congress plainly contemplated that the patent
`laws would be given wide scope.” Diamond v. Chakrabarty, 447 U.S. 303, 308 (1980). Still,
`the Supreme Court has identified exceptions to this wide scope to distinguish patents that claim
`the building blocks of human ingenuity, which are ineligible for patent protection, from those
`that “integrate the building blocks into something more.” Alice Corp. Pty. Ltd. v. CLS Bank
`Int’l, 573 U.S. 208, 217 (2014) (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
`566 U.S. 66, 89 (2012)) (internal quotations omitted). These exceptions to patent protection are
`“laws of nature, natural phenomena, and abstract ideas.” Diamond v. Diehr, 450 U.S. 175, 185
`(1981). While the boundaries of the judicial exceptions remain subject to further development,
`the Supreme Court has clearly delineated the policy underlying those exceptions: avoiding
`patents that “too broadly preempt the use of a natural law [or abstract idea].” Mayo, 566 U.S. at
`73. Thus, patent law should “not inhibit further discovery by improperly tying up the future use
`of laws of nature [or abstract ideas].” Id. at 1301.
`In Mayo, the Supreme Court “set forth a framework for distinguishing patents that claim
`laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible
`applications of those concepts.” Alice, 573 U.S. at 217. The first step is to ask “whether the
`claims at issue are directed to one of those patent-ineligible concepts.” Id. If not, the claims fall
`within the scope of § 101 and are patent-eligible. If the claims are directed to one of the
`exceptions, the next step is to search for an “inventive concept” that is “sufficient to ensure that
`the patent in practice amounts to significantly more than a patent upon the natural law itself.”
`Mayo, 566 U.S. at 72-73. In doing so, a court must “consider the elements of each claim both
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`individually and ‘as an ordered combination’ to determine whether the additional elements
`‘transform the nature of the claim’ into a patent-eligible application.” Alice, 573 U.S. at 217
`(quoting Mayo, 566 U.S. at 78-79). If, in considering the claim elements individually and as an
`ordered combination, they merely recite well-understood, routine, and conventional steps, they
`will not constitute an inventive concept for patent eligibility purposes. Aatrix Software, Inc. v.
`Green Shades Software, Inc., 882 F.3d 1121, 1128 (Fed. Cir. 2018). “Whether the claim
`elements or the claimed combination are well-understood, routine, conventional is a question of
`fact.” Id.; see also Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018) (“Like
`indefiniteness, enablement, or obviousness, whether a claim recites patent eligible subject matter
`is a question of law which may contain underlying facts.”).
`III. Discussion
`A. Introduction and Determinations Regarding the ’351, ’929, ’120, ’089, and ’059
`Patents
`This will be the third time the Court has had occasion to review various patents assigned
`
`to BlackBerry. About a year before this case was filed, BlackBerry filed patent infringement
`actions against Snap, Inc. and certain Facebook, Inc. entities and affiliates. Those cases are also
`before this Court. BlackBerry Limited v. Facebook, Inc. et al, Case No. 2:18-cv-01844-GW-
`(KSx) (“Facebook Case”); BlackBerry Limited v. Snap Inc., Case No. 2:18-cv-02693-GW-(KSx)
`(“Snap Case”). Concurrently with this ruling, the Court has prepared and will issue a final ruling
`addressing three § 101 summary judgment motions in those other cases. The determinations
`reached therein, as well as certain determinations that were reached by the Court in resolving
`similar § 101 motions to dismiss previously brought by Snap and Facebook Defendants, are
`relevant to the parties’ dispute here. See Facebook Case, Docket No. 68.
`
`Directly relevant, in its concurrently-issued final ruling in the Facebook Case, the Court
`has found the asserted claims of U.S. Patent Nos. 8,296,351 and 8,676,929 patent-ineligible at
`the summary judgment stage. As directed by the Court, BlackBerry and Twitter have filed short
`briefs stating that the rulings in the Facebook Case regarding those patents should “apply equally
`to Twitter’s motion in this case.” Docket No. 49 at 1 (BlackBerry’s supplemental brief); see also
`Docket No. 50 (Twitter’s supplemental brief, articulating same). The Court would GRANT
`Twitter’s motion to dismiss related to these patents. Without objection from BlackBerry in its
`supplemental brief (Docket No. 49), the Court would find the claims determined patent ineligible
`in the Facebook Case for the ’351 and ’929 Patents representative of the other claims of those
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`patents to the extent they are at issue in Twitter’s motion to dismiss (and specifically Claim 10 of
`the ’929 Patent (see Docket No. 50 at 4-5)). The Court agrees with Twitter that based on the
`procedural posture of this dispute, leave to amend as to these two patents would be futile, and
`dismissal is thus WITH PREJUDICE.
`
`Also directly relevant, in both its previous ruling on Facebook Defendants’ § 101 motion
`to dismiss and in its concurrently-issued ruling in the Facebook Case regarding a § 101 motion
`for summary judgment, the Court found the asserted claims of U.S. Patent Nos. 9,349,120 not
`drawn to an abstract idea under Mayo/Alice Step One. The Court would specifically incorporate
`by reference the analysis provided in each of its other § 101 rulings regarding the ’120 Patent,
`and for the same reasons discussed in those rulings would DENY Twitter’s motion to dismiss as
`it relates to the ’120 Patent.
`
` The Court has not previously reviewed the other four asserted patents raised by Twitter’s
`motion to dismiss. However, the Court finds for at least some of these newly-disputed patents,
`its previous analysis is equally instructive as to the appropriate outcome at the pleading stage.
`
`For U.S. Patent No. 8,286,089, the Court again specifically incorporates by reference the
`analysis provided in each of its previous § 101 rulings regarding the ’120 Patent. Particularly at
`the pleading stage, the parallels between the ’089 and ’120 Patents1 put the ’089 Patent similarly
`under the purview of the claims held non-abstract at Step One in Core Wireless. See Core
`                                                            
`1 Claim 1 of the ’089 Patent states:
`1. A method of representing new electronic messages on a communication device having a
`display, the method comprising:
`receiving a new electronic message;
`setting a new message flag to indicate receipt of the new electronic message;
`representing, on a home screen displayed on the display, a new message indicator
`when the new message flag is set;
`receiving an invocation to switch the home screen displayed on the display to a
`message inventory display screen for viewing a listing including a plurality
`of electronic messages including the new electronic message, the message
`inventory display screen displaying a preview, for each listed electronic
`message, of either a subject line or of a portion of contents of the electronic
`message, the contents of an electronic message being accessible upon receipt
`of a request to open an electronic message from the list of messages;
`unsetting the new message flag in response to the invocation to switch the home
`screen displayed on the display to the message inventory display screen, the
`unsetting of the flag occurring without having received a request to open the
`new electronic message; and
`receiving an invocation to switch the message inventory display screen to the home
`screen, wherein the new message indicator represented on the home screen is
`not displayed as a result of the unsetting of the new message flag.
`
`’089 Patent, Claim 1.
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`Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356, 1362 (Fed. Cir. 2018). Even if the
`claims are abstract at Mayo/Alice Step One, the Court would find that § 101 analysis at the
`motion to dismiss stage is premature, as factual questions likely exist at Mayo/Alice Step Two
`would preclude dismissal. See Aatrix, 882 F.3d at 1128. The Court would DENY WITHOUT
`PREJUDICE Twitter’s motion as to the ’089 Patent.
`
`U.S. Patent No. 9,021,059 relates to the transmission of content and notifications via a
`specific arrangement of network components.2 Sufficient Federal Circuit cases exist for the
`proposition that a specific arrangement and relationship among networked components may be
`patent-eligible as drawn
`to a
`technologically
`improved or unconventional distributed
`architecture, whether it be at Mayo/Alice Step One or Two, for the Court to deem it premature at
`this stage of litigation to consider the patent eligibility of these claims. Visual Memory LLC v.
`NVIDIA Corp., 867 F.3d 1253, 1261-62 (Fed. Cir. 2017); Enfish, LLC v. Microsoft Corp., 822
`F.3d 1327, 1336 (Fed. Cir. 2016); Bascom Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827
`F.3d 1341, 1350 (Fed. Cir. 2016). The Court would DENY WITHOUT PREJUDICE
`Twitter’s motion as to the ’059 Patent.
`
`For U.S. Patent No. 8,572,182, there are also parallels to BlackBerry patents previous
`considered by the Court, but this time to a patent about setting time stamps that the Court found
`patent-ineligible at the motion to dismiss stage. Facebook Case, Docket No. 68 at 13-18. The
`Court will thus address the parties’ dispute regarding this patent in greater detail herein.
`
`Finally, for U.S. Patent No. 8,825,777, further discussion is also warranted.
`B. U.S. Patent No. 8,572,182
`1. Background of the Patent and the Asserted Claims
`The ’182 Patent issued October 29, 2013 and is titled “Handling Notifications in Instant
`
`
`
`                                                            
`2 Claim 1 of the ’059 Patent states:
`1. A method comprising:
`making informational content, selected in a first mobile wireless device, available to a
`second mobile wireless device using a data hub server;
`receiving a representation of the informational content in the data hub server in a
`directed transmission from a first server to the data hub server, the first
`mobile wireless device being a client of the first server; and
`transmitting notification of the informational content being available to the second
`mobile wireless device using a directed transmission from the data hub
`server to a second server, the second mobile wireless device being a client of
`the second server, the first server being separate from the second server.
`
`’059 Patent, Claim 1.
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`Messaging Systems.”
`
`BlackBerry alleges that Twitter infringes “at least claims 1 and 4 of the ’182 Patent.”
`FAC, Docket No. 36 ¶ 186. Claim 1 of the ’182 Patent recites:
`1. A method in a first communication device for reducing communications
`in an instant messaging conversation between said first device and a second
`communication device, the method comprising:
`sending to said second device, a plurality of instant messages of said
`conversation;
`receiving from said second device, after sending said plurality of instant
`messages, at least a notification of the status of only a particular
`one of said plurality of instant messages sent by said first device
`to said second device without having previously received a
`notification of the status of any of said plurality of instant
`messages sent prior to said particular one of said plurality of
`instant messages; and
`in response to receipt of said notification, a processor updating an
`internal record to reflect said status for said particular one of
`said plurality of instant messages and to reflect an inferred
`status for all of said plurality of instant messages of said
`conversation sent prior to said particular one of said plurality of
`instant messages.
`’182 Patent, Claim 1.
`Claim 4 of the ’182 Patent relates to “[a] non-transitory computer-readable medium
`having computer-executable instructions,” but otherwise includes substantially similar method
`steps compared to the steps in Claim 1.
`Twitter limits its motion to dismiss arguments specifically to discussing Claims 1 and 4
`of the ’182 Patent, including based on the assertion that Claim 1 is representative of Claims 1
`and 4. See, e.g. Docket No. 39-1 at 7, 7 n.1, 8. The Court agrees with Twitter that Claim 1 is
`representative of Claims 1 and 4, and as to these particular claims, rejects BlackBerry’s
`generalized objection to the contrary. See Docket No. 40 at 6-7; see also, e.g. Berkheimer, 881
`F.3d at 1365 (“Courts may treat a claim as representative in certain situations, such as if the
`patentee does not present any meaningful argument for the distinctive significance of any claim
`limitations not found in the representative claim or if the parties agree to treat a claim as
`representative.”).
`
`2. Mayo/Alice Step One
`As mentioned, the Court finds Claims 1 and 4 of the ’182 Patent highly reminiscent of
`
`claims in one of BlackBerry’s other patents involving selectively placing time stamps on instant
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`messages:
`
`Although BlackBerry places emphasis on the purported invention’s
`selective display of the timestamp, at least Claim 1 of the ’713 Patent does
`not provide any information about how or where a timestamp is actually
`displayed on the device. [Footnote omitted.] To the extent BlackBerry
`would take the position that a claim’s sole recitation that a component must
`be displayed is sufficient to confer patentability even when there is no basis
`to find that the display confers a technological improvement, this is
`contradicted by the caselaw. See, e.g., [Interval Licensing LLC v. AOL, Inc.,
`896 F.3d 1335, 1344 (Fed. Cir. 2018)]. Indeed, the ’713 Patent
`specification shows that, at least as to the independent claims, there is no
`required format for displaying the time stamp. ’713 Patent at 7:34-37
`(“[T]he appearances of the various time stamps herein [are] completely
`exemplary, and . . . the time stamps could be provided in any format without
`departing from the concept of the invention.”) . . . . Claim 1 could cover
`embodiments where a displayed timestamp still takes up so much screen
`real estate on a mobile device that there is no optimization; there are simply
`no limits on the face of the claim as to how a timestamp must be displayed
`on a screen. [Footnote omitted.]
`The fact that the display of the claimed timestamps is dependent on a
`specific rule (of setting a “predetermined duration of time”) also fails to
`save the claims from being abstract. Again, there is nothing that ties the rule
`to a technological improvement. The language of Claim 1 is broad enough
`that it would cover embodiments that may not actually improve when
`timestamp information is displayed. In its Opposition, BlackBerry
`effectively concedes that there are no limits on what constitutes a
`“predetermined duration of time.” [Citations omitted.] Thus, the ’713
`Patent could cover predetermined time durations set to both miniscule and
`enormous lapses in time. BlackBerry provided no basis in its papers or at
`the hearing as to how these embodiments on the far ends of the spectrum
`would provide a technological improvement in the way time stamp
`information is displayed on a mobile device. And as the Federal Circuit has
`previously found, the use of a rule alone does not necessarily make a set of
`claims non-abstract. [Footnote omitted;] Intellectual Ventures I LLC v.
`Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016) (“Symantec”)
`(rejecting patentee’s argument at step two that claims were patent eligible
`because they applied business rules to email and finding claims drawn to
`patent-ineligible concept of screening emails); FairWarning IP, LLC v.
`Iatric Sys., Inc., 839 F.3d 1089, 1095 (Fed. Cir. 2016) (“Although
`FairWarning’s claims require the use of a computer, it is this incorporation
`of a computer, not the claimed rule, that purportedly “improve[s] [the]
`existing technological process” by allowing the automation of further
`tasks.”) cf. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299,
`1314 (Fed. Cir. 2016) (Federal Circuit finding on Rule 12(c) motion that
`claims were not drawn to patent-ineligible concept where they relied on a
`first set of rules to automate lip synchronization, where there was no
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`evidence that prior art animators were employing the same type of rules
`required by the claims and stating, “[t]his is unlike Flook, Bilski, and Alice,
`where the claimed computer-automated process and the prior method were
`carried out in the same way.”).
`Facebook Case, Docket No. 68 at 14-16.
`In regards to Claims 1 and 4 of the ’182 Patent, BlackBerry itself acknowledges that, as
`explained in the ’182 Patent, prior art instant message (“IM”) systems handled the issue of a
`sender not knowing if someone has received, read, or begun responding to the sender’s IM “by
`providing senders ‘Message_Delivered,’ ‘Message_Read,’ ‘Typing_Started,’ and ‘Typing_
`Stopped’ notifications for each message exchanged between devices.” Docket No. 40 at 21
`(emphasis in original) (citing ’182 Patent at 1:22-32). It seems that the only purported
`improvement BlackBerry asserts is recited by the claims is based on a rule outlining when to
`send such prior art status notifications. On this basis, BlackBerry argues that “Claim 1, among
`others, embodies [an] architecture to reduce redundant notifications.” Id.
`
`BlackBerry, however, fails to explain how the problem of redundant status notifications
`is a technological problem, let alone how the claims recite a solution that represents a
`technological improvement. Reducing redundant information is an inherently abstract goal.
`That the claims carry out that goal in the context of an instant messaging environment does not
`change the outcome, as “limiting the claims to [a] particular technological environment[,] . . . is,
`without more, insufficient to transform [the claims] into patent-eligible applications of the
`abstract idea at their core.” Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed.
`Cir. 2016); Affinity Labs of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258-59 (Fed. Cir.
`2016) (“To be sure, the ’379 patent claims the wireless delivery of regional broadcast content
`only to cellphones . . . . That restriction, however, does not alter the result. All that limitation
`does is to confine the abstract idea to a particular technological environment − in this case,
`cellular telephones.”). Moreover, the claims’ purported solution would broadly cover any type
`of notification displayed in any form, so long as for groups of instant messages, the notification
`is not displayed until the last message in the group is sent. Similar to the determination reached
`for the ’713 Patent, such a result-focused, general requirement for a “notification” further
`supports the conclusion that the claims fail to recite a specific, technological improvement to
`instant messaging systems as tools. Elec. Power, 830 F.3d at 1354 (The present case is different:
`the focus of the claims is not on such an improvement in computers as tools, but on certain
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`independently abstract ideas that use computers as tools.”). And importantly, like the ’713
`Patent, the fact that the claims set up a generic rule for when to display a notification is not
`sufficient to save the claims from abstraction. See, e.g. Symantec, 838 F.3d at 1318.
`
`In these claims, BlackBerry’s assertion that performing the claimed steps leads to
`reduced bandwidth usage for status notifications does not change the outcome, but instead is
`merely a benefit that flows from performance of the abstract idea. BSG Tech LLC v. Buyseasons,
`Inc., 899 F.3d 1281, 1288 (Fed. Cir. 2018) (“These benefits, however, are not improvements to
`database functionality. Instead, they are benefits that flow from performing an abstract idea in
`conjunction with a well-known database structure.”); Intellectual Ventures I LLC v. Capital One
`Bank (USA), 792 F.3d 1363, 1367 (Fed. Cir. 2015) (“Capital One”) (noting with respect to Step
`Two that “claiming the improved speed or efficiency inherent with applying the abstract idea on
`a computer [does not] provide a sufficient inventive concept.”). Further, although BlackBerry
`makes these assertions about bandwidth savings, there are no limitations in the claims that
`specifically address these problems or would necessarily support these improvements. See
`Symantec, 838 F.3d at 1316 (“Finally, IV argues that the ′050 patent ‘shrink[s] the protection gap
`and moot[s] the volume problem’ . . . . However, the asserted claims do not contain any
`limitations that address the protection gap or volume problem, e.g., by requiring automatic
`updates to the antivirus or antispam software or the ability to deal with a large volume of such
`software.”). Again importantly and like the ’713 Patent, without limitations for where or how a
`notification is displayed or provided to an instant message sender, the argument that the
`notification always necessarily reduces bandwidth is not persuasive.
` Having concluded that the claims are drawn to the abstract idea of reducing redundant
`notifications, the Court proceeds to Mayo/Alice Step Two.
`2. Mayo/Alice Step Two
`BlackBerry’s Mayo/Alice Step Two argument is short enough to reproduce in full:
`Twitter also fails to meet its burden at step two. As discussed at step one,
`the inventions make specific improvements to prior art IM systems. See,
`e.g., ’182 patent at claims 1, 4. Twitter offers nothing to demonstrate the
`claimed elements individually or as a combination were “well-understood,
`routine, and conventional activities previously known to the industry.”
`Aatrix, 882 F.3d at 1128. BlackBerry has specifically identified limitations
`in its status notification mechanism which operate together to reduce
`redundant notifications and conserve precious computation resources, “a
`specific and substantial improvement over prior messaging notification
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`systems.” Dkt. 36 ¶¶ 180-182. These allegations preclude dismissal at step
`two. [Cellspin Soft, Inc. v. Fitbit, Inc., 927 F.3d 1306, 1317-18 (Fed. Cir.
`2019)]; Aatrix, 882 F.3d at 1126-28.
`Docket No. 40 at 22-23. BlackBerry’s cited paragraphs in its FAC either: (1) state in a
`conclusory fashion that certain claim limitations are non-routine and unconventional, without
`explaining how so or (2) refer back to the same arguments presented by BlackBerry in Step One,
`i.e. that the claims result in “more efficient use of system bandwidth.” See, e.g. FAC, Docket
`No. 36 ¶ 182. BlackBerry’s allegations are insufficient to manufacture a question of fact at
`Mayo/Alice Step Two. BSG, 899 F.3d at 1291; see also id. at 1290 (“it has been clear since Alice
`that a claimed invention’s use of the ineligible concept to which it is directed cannot supply the
`inventive concept that renders the invention ‘significantly more’ than that ineligible concept.”).
`Because the Court finds that Claims 1 and 4 of the ’182 Patent are drawn to an abstract
`idea and there are no well-pled factual allegations in the FAC to support an assertion that the
`claim components, considered individually and as an ordered combination, recite significantly
`more than routine, conventional, or well-understood material,3 the Court would GRANT
`Twitter’s motion as to Claims 1 and 4 of the ’182 Patent and accordingly find that BlackBerry’s
`infringement claims with respect to the ’182 Patent must be dismissed.
`C. U.S. Patent No. 8,825,777
`1. Background of the Patent and the Asserted Claims
`The ’777 Patent is titled “Selective Delivery of Social Network Messages Within a Social
`
`Network.” It issued on September 2, 2014.
`
`BlackBerry alleges that Twitter infringes “at least Claims 1, 10, and 19 of the ’777
`Patent.” FAC, Docket No. 36 ¶ 213.
`
`Claim 1 of the ’777 Patent states:
`1. A method of managing electronic communications within a social group
`of a social network, comprising:
`monitoring messages communicated within the social group;
`determining content shared by a number of messages communicated
`within the social group, wherein the number of messages
`sharing the determined content satisfies at least one of:
`
`                                                            
`3 The Court notes that BlackBerry did not adequately or sufficiently assert at either Step One or Step Two
`that the claim limitation requiring a processor to update a record, including with an “inferred status” for the
`messages where a notification was not sent, conveys patent eligibility. Based on the Court’s review, this limitation
`appears to simply provide generic post-solution activity rather than meaningfully figure into the § 101 dispute for
`these claims.
`
` 
`
`10 
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`Case 2:19-cv-01444-GW-KS Document 51 Filed 10/01/19 Page 12 of 15 Page ID #:813
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`a growth rate of the number of messages meets or exceeds a
`growth rate threshold; and
`the number of messages meets or exceeds a message quantity
`threshold;
`determining whether one or more new messages to be communicated to
`one or more members of the social group comprises content
`similar to the determined content; and
`selectively adjusting notification of the one or more new messages to
`the one or more members of the social group in response to
`determining that the one or more new messages to be
`communicated to the one or more members of the social group
`comprises content similar to the determined content.
`’777 Patent, Claim 1. Claim 10 refers to “[a] social network server coupled to a communications
`network that facilitates exchange of electronic communications within a social group of the
`communications network.” It requires a processor and a memory coupled to the processor,
`where the memory is configured to perform substantially the same steps recited in Claim 1.
`Claim 19 refers to “[a] non-transitory computer-readable medium having computer-executable
`instructions for causing a server comprising a processor and associated memory to manage
`electronic communications within a social group of a social network,” requiring that the
`instructions are the same as the method steps recited in Claim 1.
`
`Like its arguments regarding the ’182 Patent, Twitter again appears to limit its motion to
`dismiss arguments specifically to Claims 1, 10, and 19 of the ’777 Patent. See, e.g., Docket No.
`39-1 at 17. Twitter treats Claim 1 as representative of Claims 1, 10, and 19. Id. at 14. The
`Court again agrees with Twitter that Claim 1 is representative of Claims 1, 10, and 19, and
`rejects BlackBerry’s generalized objection to the contrary for these particular claims. See
`Docket No. 40 at 6-7; see also, e.g., Berkheimer, 881 F.3d at 1365.
`2. Mayo/Alice Step One
`
`Claims 1, 10, and 19 of the ’777 Patent have similar § 101 shortcomings to Claims 1 and
`4 of the ’182 Patent. BlackBerry characterizes the ’777 Patent as “refin[ing] the quality of
`messages sent over a social network by specifically handling notifications of messages that may
`harm the network or its users, while preserving network resources and bandwidth by curbing the
`continued proliferation of such content and creating a better experience for users consuming
`information from around the Internet.” Docket No. 40 at 27-28. BlackBerry refers to a portion
`of the patent specification that states: “[w]ith the ability of social ne