Case 3:20-cv-04677-JD Document 215 Filed 05/18/22 Page 1 of 18
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`KEKER, VAN NEST & PETERS LLP
`ROBERT A. VAN NEST - # 84065
`rvannest@keker.com
`SHARIF E. JACOB - # 257546
`sjacob@keker.com
`PAVEN MALHOTRA - # 258429
`pmalhotra@keker.com
`MICHELLE YBARRA - # 260697
`mybarra@keker.com
`THOMAS E. GORMAN - # 279409
`tgorman@keker.com
`DAVID J. ROSEN – #296139
`drosen@keker.com
`EDWARD A. BAYLEY - # 267532
`ebayley@keker.com
`633 Battery Street
`San Francisco, CA 94111-1809
`Telephone:
`415 391 5400
`Facsimile:
`415 397 7188
`
`Attorneys for Defendant
`NETFLIX, INC.
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
` Case No. 3:20-cv-04677-JD
`
`DEFENDANT NETFLIX, INC.’S NOTICE
`AND MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT OF ITS
`MOTION TO DISMISS
`
`Date:
`Time:
`Dept.:
`Judge:
`
`June 23, 2022
`10:00 a.m.
`Courtroom 11, 19th Floor
`Honorable James Donato
`
`Date Filed: March 13, 2020
`Trial Date: None Set
`
`
`BROADCOM CORPORATION, et al.,
`
`Plaintiffs,
`
`v.
`
`NETFLIX, INC.,
`
`Defendant.
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`DEFENDANT NETFLIX, INC.’S NOTICE AND MEMORANDUM OF POINTS AND AUTHORITIES
`IN SUPPORT OF ITS MOTION TO DISMISS
`Case No. 3:20-cv-04677-JD
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`Case 3:20-cv-04677-JD Document 215 Filed 05/18/22 Page 2 of 18
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`
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`I.
`II.
`III.
`IV.
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`TABLE OF CONTENTS
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`Page
`
`INTRODUCTION ...............................................................................................................1
`PROCEDURAL HISTORY.................................................................................................2
`LEGAL STANDARD ..........................................................................................................4
`ARGUMENT .......................................................................................................................5
`A.
`The ’183 patent is ineligible under Section 101. .....................................................5
`1.
`
`Alice step one: Representative claim 1 of the ’183 patent is directed
`to an abstract idea.........................................................................................6
`
`2.
`
`Alice step two: Representative claim 1 of the ’183 patent contains
`no inventive step. .......................................................................................10
`
`B.
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`Broadcom’s amended allegations do not address the remaining asserted
`claims of the ’183 patent. .......................................................................................12
`Broadcom’s Twelfth Claim for Relief should be dismissed with prejudice. .........14
`C.
`CONCLUSION ..................................................................................................................14
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`V.
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`DEFENDANT NETFLIX, INC.’S NOTICE AND MEMORANDUM OF POINTS AND AUTHORITIES
`IN SUPPORT OF ITS MOTION TO DISMISS
`Case No. 3:20-cv-04677-JD
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`Case 3:20-cv-04677-JD Document 215 Filed 05/18/22 Page 3 of 18
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`
`
`Federal Cases
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Abagninin v. AMVAC Chem. Corp.,
`545 F.3d 733 (9th Cir. 2008) ...................................................................................................14
`
`Alice Corp. Pty. v. CLS Bank Int’l,
`573 U.S. 208, 134 S. Ct. 2347 (2014) .............................................................................. passim
`
`Am. Axle & Mfg., Inc. v. Neapco Holdings LLC,
`939 F.3d 1355 (Fed. Cir. 2019)................................................................................................12
`
`Appistry, Inc. v. Amazon.com, Inc.,
`2015 WL 4210890 (W.D. Wash. July 9, 2015) ...................................................................7, 11
`
`Berkheimer v. HP Inc.,
`881 F.3d 1360 (Fed. Cir. 2018)............................................................................................4, 14
`
`Boom! Payments, Inc. v. Stripe, Inc.,
`839 F. App’x 528 (Fed. Cir. 2021) ............................................................................................4
`
`Broadcom Corp. v. Netflix Inc,
`2021 WL 4170784 (N.D. Cal. Sept. 14, 2021) ....................................................................4, 11
`
`BSG Tech LLC v. Buyseasons, Inc.,
`899 F.3d 1281 (Fed. Cir. 2018)................................................................................................12
`
`Coho Licensing LLC v. Glam Media, Inc.,
`2017 WL 6210882 (N.D. Cal. Jan. 23, 2017) ......................................................................7, 12
`
`Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat. Ass’n,
`776 F.3d 1343 (Fed. Cir. 2014)................................................................................................11
`
`Diamond v. Diehr,
`450 U.S. 175 (1981) .................................................................................................................12
`
`Eclipse IP LLC v. McKinley Equip. Corp.,
`2014 WL 4407592 (C.D. Cal. Sept. 4, 2014) ............................................................................6
`
`Elec. Commc’n Techs., LLC v. ShoppersChoice.com, LLC,
`958 F.3d 1178 (Fed. Cir. 2020)................................................................................................12
`
`Finjan, Inc. v. Sonicwall, Inc.,
`2019 WL 1369938 (N.D. Cal. Mar. 26, 2019) ...........................................................................9
`
`Immersion Corp. v. Fitbit, Inc.,
`313 F. Supp. 3d 1005 (N.D. Cal. 2018) ...................................................................................11
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`DEFENDANT NETFLIX, INC.’S NOTICE AND MEMORANDUM OF POINTS AND AUTHORITIES
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`Case 3:20-cv-04677-JD Document 215 Filed 05/18/22 Page 4 of 18
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`
`
`Intell. Ventures I LLC v. Cap. One Fin. Corp.,
`850 F.3d 1332 (Fed. Cir. 2017)..........................................................................................11, 13
`
`PersonalWeb Techs LLC v. Google LLC,
`8 F.4th 1310 (Fed. Cir. 2021) ..................................................................................................13
`
`Rothschild Digital Confirmation, LLC v. Skedulo Holdings Inc.,
`2020 WL 1307016 (N.D. Cal. Mar. 19, 2020) .....................................................................4, 12
`
`Simio, LLC v. FlexSim Software Prod., Inc.,
`983 F.3d 1353 (Fed. Cir. 2020)................................................................................................14
`
`In re TLI Commc’ns LLC Pat. Litig.,
`823 F.3d 607 (Fed. Cir. 2016)..................................................................................................10
`
`In re Violin Memory, Inc. Secs. Litig.,
`2015 WL 1968766 (N.D. Cal. Apr. 30, 2015) .........................................................................14
`
`Voip-Pal.com, Inc. v. Apple Inc.,
`411 F. Supp. 3d 926 (N.D. Cal. 2019) .....................................................................................13
`
`Yu v. Apple Inc.,
`2020 WL 1429773 (N.D. Cal. Mar. 24, 2020) .......................................................................4, 9
`
`Federal Statutes
`
`35 U.S.C. § 101 ...................................................................................................................... passim
`
`35 U.S.C. § 285 ................................................................................................................................5
`
`Rules
`
`Fed. R. Civ. P. 11 .............................................................................................................................5
`
`Fed. R. Civ. P. 12(b)(6)....................................................................................................................4
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`DEFENDANT NETFLIX, INC.’S NOTICE AND MEMORANDUM OF POINTS AND AUTHORITIES
`IN SUPPORT OF ITS MOTION TO DISMISS
`Case No. 3:20-cv-04677-JD
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`Case 3:20-cv-04677-JD Document 215 Filed 05/18/22 Page 5 of 18
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`TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
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`NOTICE OF MOTION AND MOTION
`
`PLEASE TAKE NOTICE that on June 23, 2022 at 10:00 a.m. in Courtroom 11, 19th
`
`Floor, 450 Golden Gate Avenue, San Francisco, California, before the Honorable James Donato,
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`Defendant Netflix, Inc. (“Netflix”) will and hereby does move, pursuant to Rule 12(b)(6) of the
`
`Rules of Civil Procedure, for an order dismissing the Twelfth Claim of Plaintiffs Broadcom and
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`Avago Technologies International Pte. Limited’s (“Broadcom’s”) Third Amended Complaint
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`with prejudice. This motion is based upon this Notice; the following Memorandum of Points and
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`Authorities; the complete files and records in this action; the argument of counsel; and such other
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`matters as the Court may consider.
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`I.
`
`INTRODUCTION
`
`A patent’s eligibility under 35 U.S.C. § 101 must be supported by something other than
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`the patent owner’s say so. But that support is missing from Broadcom’s Third Amended
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`Complaint, which reflects its third attempt to salvage the asserted claims of U.S. Patent No.
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`8,365,183 (the “’183 patent”). On April 13, 2022, the Court found those claims unpatentable
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`under Section 101 and dismissed Broadcom’s Twelfth Claim without prejudice. See Dkt. 205
`
`(hereinafter, “Order”). In doing so, the Court cautioned that “[i]n light of the plain language of
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`the claims in the patent, the Court has some doubt that Broadcom can amend around this
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`problem.” Order at 9. That doubt was well-founded. Broadcom’s Third Amended Complaint re-
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`asserts the previously-dismissed ’183 patent and includes new allegations apparently designed to
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`overcome another Section 101 dismissal. But the new allegations fail to transform the claimed
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`invention into patent-eligible subject matter. Nor do they give rise to a factual dispute that makes
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`resolution on the pleadings inappropriate.
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`In fact, Broadcom’s new allegations do nothing to respond to the Court’s prior analysis.
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`Broadcom’s new allegations purport to rebrand the’183 patent’s invention as the “Funnel
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`Approach”—a “specific technique” for allocating jobs to computers in a system—and adopt a
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`new claim construction. But these are virtually the same arguments Broadcom made against
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`Case 3:20-cv-04677-JD Document 215 Filed 05/18/22 Page 6 of 18
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`dismissal last time and are of no help to it here; the Court has already found that the plain
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`language of the representative claim and the specification “make clear that the claim is drawn to
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`the abstract idea of allocating tasks across a system of servers,” and that idea “is not a specific
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`improvement to computer functionality.” Order at 6–7 (emphasis added). Broadcom next alleges
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`that the patent examiner distinguished the ’183 patent application over prior art during
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`prosecution, and that the Patent Trial and Appeal Board denied Netflix’s petition for inter partes
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`review. See Third Amended Complaint (“TAC”), Dkt. 208 ¶¶ 380–385. These facts are
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`irrelevant to the Court’s inquiry under Section 101. Finally, Broadcom adds new, conclusory
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`allegations of inventiveness that are unsupported by the patent. See, e.g., TAC ¶¶ 380, 386, 387.
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`As the Court has already warned, “a patentee cannot avoid dismissal for ineligible claims purely
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`on the basis of conclusory or generalized statements, and fanciful or exaggerated allegations that
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`later prove to be unsupported may lead to fee shifting or other sanctions.” Order at 3.
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`Broadcom has failed to allege any facts that support a finding of eligibility; instead, its
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`new allegations are more of the same, and wholly insufficient to support a finding that the ’183
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`patent claims patent-eligible subject matter. Accordingly, Netflix requests the Court dismiss
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`Broadcom’s Twelfth Claim for Relief with prejudice.
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`II.
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`PROCEDURAL HISTORY
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`On March 13, 2020, Broadcom sued Netflix in the Central District of California on nine
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`patents. Broadcom broadly accused three technologies of infringement: Netflix’s Content
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`Delivery Network (“CDN”), its back-end container management platform (“Titus”), and the
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`software used to encode video. See Dkt. 1.
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`On June 8, 2020, Netflix moved to dismiss four patents under 35 U.S.C. § 101 and moved
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`to transfer the case to this District, where all parties are headquartered. Dkt. 44. Shortly
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`thereafter, Broadcom filed an amended complaint, asserting three new patents and mooting
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`Netflix’s motion to dismiss. Dkt. 52. Judge James V. Selna granted Netflix’s motion to transfer
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`on July 10, 2020, Dkt. 62, and the case was thereafter assigned to this Court.
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`Netflix re-filed its motion to dismiss on August 17, 2020, and the Court granted it as to
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`three out of four patents on September 14, 2021. Dkt. 160. Netflix also moved to stay the case
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`pending inter partes review of several of the asserted patents. Dkt. 109. The Court granted that
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`motion in part on September 15, 2021, staying the case with respect to the five patents on which
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`IPR has been instituted. Dkt. 161. The case is currently proceeding on five patents.
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`On October 18, 2021, Broadcom filed a Second Amended Complaint, re-asserting three
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`patents that the Court had previously found invalid under Section 101. Dkt. 172. For two of the
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`previously dismissed patents, Broadcom’s allegations were identical to those in the First
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`Amended Complaint. See id. ¶¶ 25–60 (’079 patent); ¶¶ 94–129 (’245 patent). Broadcom
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`stipulated to dismissal with prejudice of those patents in order to preserve its appellate rights,
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`Dkt. 175, but refused to do so for the third patent.1
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`Of the five patents that are not subject to the Court’s September 15, 2021 stay, only the
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`’183 patent accuses Titus technology. On October 26, 2021, Netflix moved for judgment on the
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`pleadings, arguing that the ’183 patent is ineligible under Section 101. Dkt. 181. The Court
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`agreed, finding that the “plain language of Claim 1 and the specification make clear that the claim
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`is drawn to the abstract idea of allocating tasks across a system of servers,” and that the ’183
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`patent “does not teach any specific improvement to computer functionality, but instead teaches
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`using general, abstract resource allocation principles to pick the best computer device to perform
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`a job.” Order at 6–7. The Court further found that the ’183 patent’s claims do not recite an
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`inventive concept, noting that “Broadcom’s attempts to show an inventive concept in Claim 1 do
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`no more than restate the abstract idea that the claim is directed to.” Id. at 8. On April 13, 2022,
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`the Court dismissed Broadcom’s Twelfth Claim for Relief without prejudice, warning that “[i]n
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`light of the plain language of the claims in the patent, the Court has some doubt that Broadcom
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`can amend around this problem.” Id. at 9.
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`On May 4, 2022, Broadcom filed its Third Amended Complaint, re-asserting the ’183
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`patent and including new allegations in support. Dkt. 208. A redline showing Broadcom’s
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`additions to the Second Amended Complaint is attached as Exhibit A to the Declaration of Emily
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`A. Hasselberg (“Hasselberg Decl.”) filed concurrently herewith. As explained further below,
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`1 Proceedings as to the ’992 patent, which Broadcom refused to dismiss, were stayed by this
`Court on September 15, 2021. Dkt. 161. Netflix will renew its motion to dismiss the ’992 patent
`if any of the asserted claims of the ’992 survive inter partes review.
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`Case 3:20-cv-04677-JD Document 215 Filed 05/18/22 Page 8 of 18
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`Broadcom’s new allegations do not save its claim.
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`III. LEGAL STANDARD
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`The Court outlined the legal framework for determining patent eligibility under Section
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`101 in its order on Netflix’s motion to dismiss, Dkt. 170 at 7–8, and again in its order on Netflix’s
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`motion for judgment on the pleadings, Order at 2–6. Netflix incorporates those herein by
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`reference.
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`“The Federal Circuit has ‘repeatedly recognized that in many cases it is possible and
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`proper to determine patent eligibility under 35 U.S.C. § 101 on a Rule 12(b)(6) motion.’”
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`Broadcom Corp. v. Netflix Inc, 2021 WL 4170784, at *4 (N.D. Cal. Sept. 14, 2021) (quoting
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`Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1373–74 (Fed. Cir. 2016)). Although the
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`Section 101 inquiry may occasionally involve “underlying issues of fact,” a plaintiff may not
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`manufacture a factual dispute simply by pleading that the “the claim limitations involve more
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`than performance of well-understood, routine, and conventional activities previously known to
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`the industry.” Berkheimer v. HP Inc., 881 F.3d 1360, 1365, 1367 (Fed. Cir. 2018) (internal
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`alterations omitted). Indeed, courts “disregard conclusory statements when evaluating a
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`complaint under Rule 12(b)(6).” Boom! Payments, Inc. v. Stripe, Inc., 839 F. App’x 528, 533
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`(Fed. Cir. 2021).
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`The Alice step one inquiry is often a question of law: the Court need only determine if the
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`claims, in light of the specification, are directed to unpatentable subject matter. Rothschild
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`Digital Confirmation, LLC v. Skedulo Holdings Inc., 2020 WL 1307016, at *2 (N.D. Cal. Mar.
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`19, 2020). And “[w]hile concrete allegations regarding the claimed [invention’s] improvement to
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`the functioning of the computer may suffice at Alice’s second step,” a plaintiff must allege
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`something more than “another formulation of the abstract idea” to survive a motion to dismiss.
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`Id. at *5 (internal quotations omitted). “[A]llegations about inventiveness that are wholly
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`divorced from the claims or the specification will not defeat a motion to dismiss on Section 101
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`grounds.” Yu v. Apple Inc., 2020 WL 1429773, at *3 (N.D. Cal. Mar. 24, 2020) , aff’d, 1 F.4th
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`1040 (Fed. Cir. 2021), cert. denied, 142 S. Ct. 1113 (2022) (internal quotations omitted).
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`“[I]f the allegations in the complaint about the invention as claimed ultimately lack
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`evidentiary support or if the case is exceptional, district courts can award attorneys’ fees to the
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`accused infringer under either Rule 11 or [35 U.S.C.] § 285 to compensate the accused infringer
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`for any additional litigation costs it incurs.” Order at 3–4 (citing Berkheimer, 890 F.3d at 1373).
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`IV. ARGUMENT
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`A.
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`The ’183 patent is ineligible under Section 101.
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`The ’183 patent is directed to “a system and method for dynamic resource provisioning
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`and job placement.” Broadcom asserts claims 1, 2, 4, 6, 8, 11, 14, and 15 of the ’183 patent. The
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`parties agree that claim 1 is representative. See Order at 1. Claim 1 recites:
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`A method for dynamic resource provisioning for job placement, comprising:
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`receiving a request to perform a job on an unspecified computer
`device;
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`determining one or more job criteria for performing the job, the
`one or more job criteria defining one or more operational
`characteristics needed for a computer device to perform the job;
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`determining one or more utilization criteria for performing the
`job;
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`providing a list of available computer devices, the list comprising a
`plurality of computer devices currently provisioned to perform
`computer operations;
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`from the list of available computer devices, determining a list of
`suitable computer devices for performing the job by comparing
`operational characteristics for each available computer device with
`the job criteria, the list of suitable computer devices comprising one
`or more computer devices having operational characteristics that
`satisfy the job criteria;
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`using the utilization criteria to determine whether one or more
`underutilized computer devices exist on the list of suitable
`computer devices, the one or more underutilized computer devices
`having a suitable level of utilization for performing the job; and
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`if the one or more underutilized computer devices exist, forwarding
`the job to one of the one or more underutilized computer devices.
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`In other words, “[t]he ’183 patent teaches a central processor that receives various jobs and then
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`allocates those jobs to other servers in the system based on the capabilities and availabilities of
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`those computers and what is needed for the jobs.” Order at 6.
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`The Court summarized the operative steps of claim 1 as follows: (1) “receiving a request
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`to perform a job”; (2) “determining one or more job criteria for performing the job, which defines
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`an operational characteristic needed to perform the job”; (3) “determining one or more utilization
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`criteria for performing the job”; (4) “providing a list of available computer devices”;
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`(5) “determining a list of suitable computer devices from the list of available devices by
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`comparing operational characteristics for each available computer device with the job criteria”;
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`(6) “using the utilization criteria to determine whether one or more underutilized computer
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`devices exist on the list of suitable computer devices”; and (7) “if an underutilized computer
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`device exists, forwarding the job to one of the one or more underutilized computer devices.” See
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`Order at 6 (citing ’183 patent at 15:43–16:3) (internal quotations omitted).
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`According to the patent, “[a] job criteria may specify any desired operational
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`characteristic of a computer device needed for computer device to satisfactorily perform [the]
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`job.” ’183 patent at 8:35–37. The parties have agreed that “utilization criteria” are any “criteria
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`specifying a level of hardware and/or software utilization.” Joint Claim Constr. & Prehearing
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`Statement, Dkt. 112.
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`1.
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`Alice step one: Representative claim 1 of the ’183 patent is directed to
`an abstract idea.
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`The Court has already found that “[t]he plain language of Claim 1 and the specification
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`make clear that the claim is drawn to the abstract idea of allocating tasks across a system of
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`servers.” Order at 6. Netflix analogized the abstract idea embodied in claim 1 to a manager
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`assigning work, and the Court recognized that:
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`Countless other analogs can be found in everyday life stretching back through
`time, from Roman magistrates allocating work to citizens in the Forum to meet the
`needs of the city, to the host of a local restaurant directing customers to the bar, a
`table, or other location in the restaurant based on the customer’s needs and the
`waiters’ availability to address those needs.
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`Order at 6. Because it claims a well-known method of organizing human behavior, asserted
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`claim 1 flunks step one of the Alice analysis. Indeed, courts have repeatedly held that claims that
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`recite fundamental and long-prevalent practices are ineligible for patent protection,
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`notwithstanding that they are performed in a computing environment. See, e.g., Eclipse IP LLC v.
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`McKinley Equip. Corp., 2014 WL 4407592, at *7 (C.D. Cal. Sept. 4, 2014) (finding ineligible a
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`claim “directed to the abstract idea of asking someone whether they want to perform a task, and if
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`they do, waiting for them to complete it, and if they do not, asking someone else” “in connection
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`with a computer system”); Coho Licensing LLC v. Glam Media, Inc., 2017 WL 6210882, at *5
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`(N.D. Cal. Jan. 23, 2017), aff’d 710 F. App’x 892 (Fed. Cir. 2018) (finding ineligible claims that
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`“recite the abstract idea of distributed processing—merely splitting up a job into smaller pieces to
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`be completed by multiple participating computers in the hierarchy”); Appistry, Inc. v.
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`Amazon.com, Inc., 2015 WL 4210890, at *2 (W.D. Wash. July 9, 2015), aff’d 676 F. App’x 1007
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`(Fed. Cir. 2017) (finding ineligible claims directed to the abstract idea of “process[ing]
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`information and/or complet[ing] a task by breaking down the job into small pieces, each handled
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`by a different actor organized within an internal hierarchy”).
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`Broadcom’s new allegations do not alter that analysis. First, Broadcom attempts to recast
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`claim 1 of the ’183 patent as a non-abstract improvement to computing technology by giving it a
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`name: the “Funnel Approach.” TAC ¶¶ 370 – 371. According to Broadcom, when the steps of
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`claim 1 are performed in order, the claim “teaches and claims a specific technique (referred to as
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`a ‘Funnel Approach’) for dynamically provisioning resources in response to receiving a request
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`to perform a job . . . .” Id. ¶¶ 370, 373 (emphasis added). Who or what “refers to” the Funnel
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`Approach is unclear; that term is found nowhere in the ’183 patent, and Broadcom cites no
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`extrinsic evidence to support its allegations suggesting the Funnel Approach is a term of art or
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`that the ’183 patent is affiliated with that term in any way. Indeed, save for some labeling and
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`rephrasing, the Funnel Approach is identical to Broadcom’s characterization of the ’183 patent,
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`which the Court has already found to be directed to an abstract idea:
`
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`Broadcom’s Opp. to Netflix’s Mot. for
`Judgment on the Pleadings at 7
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`The “Funnel Approach” as described in TAC
`¶ 370
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`The ’183 Patent discloses a technique for
`dynamically provisioning resources in a
`distributed computing system that meets
`this standard. The technique involves the
`following operations that occur in the
`recited order:
`
`
`
`The ’183 Patent teaches and claims a specific
`technique (referred to as a “Funnel Approach”)
`for dynamically provisioning resources in
`response to receiving a request to perform a job
`(e.g., a computing task). This technique is
`specifically directed to and limited to distributed
`computer systems and generally involves the
`following operations:
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`(1) providing a list of computer devices that
`are available and provisioned to perform
`computer operations;
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`
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`(2) comparing operational characteristics for
`each of the available computer devices with
`criteria necessary for performing a job to
`determine a list of suitable computer
`devices;
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`(3) using utilization criteria to determine
`whether any of the suitable computer
`devices are underutilized; and
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`
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`(4) forwarding the job to one of the
`underutilized computer devices.
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`(1) providing a list of available computer
`devices that comprises a plurality of computer
`devices currently provisioned to perform
`computer operations (“List of Available
`Computer Devices”);
`
`(2) determining a list of suitable computer
`devices from the List of Available Computer
`Devices, by comparing operational
`characteristics for each available computer
`device with determined job criteria for
`performing the job (“List of Suitable Computer
`Devices”);
`
`(3) using determined utilization criteria to
`determine whether one or more underutilized
`computer devices exist on the List of Suitable
`Computer Devices (“List of Underutilized
`Computer Devices”); and
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`(4) forwarding the job to one of the computers
`on the List of Underutilized Computer Devices.
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`In fact, Broadcom’s newly-branded “Funnel Approach” actually underscores claim 1’s
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`abstract nature. See Fig. 1. The “logical flow of . . . operations” taught by the Funnel Approach,
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`¶ 373, could easily be applied to any number of
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`human analogs. Take, for example, the Court’s
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`comparison to a host assigning guests to waiters at
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`a restaurant. Order at 6. When seating a party of
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`five, the host might review the list of available
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`waiters (“List of Available Computer Devices”).
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`Next, the host might narrow the list to those
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`waiters working tables that fit the guests’ needs,
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`e.g., sitting at a high-top table near the bar (“List
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`of Suitable Computer Devices”). Finally, the host
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`Fig. 1: Broadcom’s “Funnel
`Approach” TAC ¶ 372
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`might identify only those waiters who have sufficient bandwidth to help a party of five (“List of
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`Underutilized Computer Devices”) and seat the party with one of those waiters (“Forward Job to
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`One Computer Device”). This is just one of many examples that refute Broadcom’s allegation
`
`that the Funnel Approach is “specifically directed to and limited to distributed computer
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`systems.” TAC ¶ 370.
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`Broadcom’s attempt to introduce a new construction for claim 1 is equally unavailing.
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`Broadcom alleges that limitation [1g], which relates to determining whether “one or more
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`underutilized computer devices exist on the list of suitable computer devices,” actually involves
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`two separate steps: a computer device must (1) satisfy “underutilization criteria” and (2) have
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`enough resources to perform the job. TAC ¶ 379. As Broadcom argues:
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`[A] computer device might have less than 10% utilization, but the job requires
`95% of the computer’s resources. So the computer device may have low
`utilization, but still lack sufficient resources to perform the requested job.
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`Id.2 But this construction does not render claim 1 any less abstract. Returning to the restaurant
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`example, a waiter might have only two people sitting in his 20-seat bar area (i.e., 10% utilization),
`
`but still lack sufficient resources to perform the requested job because the waiter needs 19 seats to
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`entertain a large party (i.e., 95% utilization). Neither this problem—nor the purported solution
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`taught by the ’183 patent—is unique to distributed computing systems; rather, it is “an
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`articulation of the idea that rules may be applied to decide which devices should be used” for a
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`particular task. Order at 7–8; cf. Yu v. Apple Inc., 2020 WL 1429773, at *4 (finding a patent to be
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`directed to an abstract idea where the problem identified by the specification was “not a unique
`
`technical problem”). In any event, the patent does not teach how the claimed invention “us[es]
`
`the utilization criteria to determine whether one or more underutilized computer devices exist on
`
`the list of suitable computer devices.” See id. (“The essentially result-focused functional
`
`character of claim language amply establishes that claim 1 does not propose a specific solution to
`
`a technical problem”) (internal quotations omitted).
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`2 Broadcom did not pursue this