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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`IMMERSION CORPORATION,
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`Plaintiff,
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`v.
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`FITBIT, INC.,
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`Defendant.
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`Case No. 17-CV-03886-LHK
`
`ORDER GRANTING IN PART AND
`DENYING IN PART MOTION TO
`DISMISS
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`Re: Dkt. No. 23
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`
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`Plaintiff Immersion Corporation (“Immersion”) filed a patent infringement suit against
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`Defendant Fitbit, Inc. (“Fitbit”). Immersion alleges that Fitbit infringes claims of U.S. Patent No.
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`8,059,105 (“the ’105 Patent”), U.S. Patent No. 8,351,299 (“the ’299 Patent”), and U.S. Patent No.
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`8,638,301 (“the ’301 Patent”) (collectively, the “patents-in-suit”). Before the Court is Fitbit’s
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`motion to dismiss, which contends that the asserted claims of the patents-in-suit fail to recite
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`patent-eligible subject matter under 35 U.S.C. § 101. ECF No. 23 (“Mot.”). Having considered
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`the submissions of the parties, the relevant law, and the record in this case, the Court GRANTS
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`Fitbit’s motion to dismiss as to the ’301 Patent claims and DENIES Fitbit’s motion to dismiss as
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`to the ’105 and ’299 Patent claims.
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`Case 5:17-cv-03886-LHK Document 63 Filed 03/05/18 Page 2 of 34
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`I.
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`A.
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`BACKGROUND
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`Factual Background
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`1. The Parties and Technology at Issue
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`Plaintiff Immersion is a Delaware corporation with its principal place of business in San
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`Jose, California. ECF No. 1 (“Compl.”) at ¶ 24. Immersion pioneered the use of haptic effects,1
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`such as tactile vibrations and forces, in electronic devices. Id. ¶ 2. “Haptic effects . . . can be
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`produced by actuators, or motors, which create a vibration, jolt, pulse, spatial texture, or other
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`physical sensation. Haptic hardware devices are often combined with software simulating the way
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`in which objects interact through the sense of touch.” Id. ¶ 3. Immersion first introduced haptic
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`feedback in video game controllers in the 1990s, and since then has developed haptic feedback
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`technology for use in “console, PC, and mobile gaming” as well as in other devices, including
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`wearable devices. Id. ¶ 18.
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`Defendant Fitbit, which sells wearable fitness trackers, is a Delaware corporation with its
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`principal place of business in San Francisco, California. Id. ¶ 25. Some of Fitbit’s products
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`include haptic feedback features, such as a silent alarm that vibrates to wake the user from sleep.
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`Id. ¶ 10. Other haptic feedback features include haptic confirmation of commands and haptic
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`notification of incoming phone calls. Id. Immersion alleges that these products infringe
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`Immersion’s ’105, ’299, and ’301 Patents. The Court next summarizes these patents.
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`2. The ’105 Patent
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`The ’105 Patent is titled “Haptic Feedback for Touchpads and Other Touch Controls.”
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`Compl. Exh. A (’105 patent). It was filed on January 14, 2008 and was issued on November 15,
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`2011. Id.
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`Most of the claims in the ’105 Patent generally relate to a device, such as a laptop
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`computer touchpad mouse, that facilitates a user’s interaction with a computer and that can
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`provide haptic feedback to the user. ’105 patent at col. 1:28-32, col. 2:7-10. Specifically, the ’105
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`1 “The word ‘haptics’ originates from the Greek word haptikos, meaning to be able to grasp and
`perceive by touch.” Compl. ¶ 3.
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`Case 5:17-cv-03886-LHK Document 63 Filed 03/05/18 Page 3 of 34
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`Patent is directed to a haptic feedback device such as a touchpad provided on a portable computer,
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`or a touch screen found on a variety of devices. Id. at col. 2:7-10. The touch control “inputs a
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`position signal to a processor of the computer based on a location of user contact on the touch
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`surface. The computer can position a cursor in a displayed graphical environment based at least in
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`part on the position signal, or perform a different function.” ’105 patent abstract. “At least one
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`actuator is also coupled to the touch input device and outputs a force to provide a haptic sensation
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`to the user contacting the touch surface.” Id. The haptic feedback is “preferably a linear force
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`output approximately perpendicularly to a plane of the touch surface of the touch input device, and
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`the actuator can include a piezo-electric actuator, a voice coil actuator, a pager motor, a solenoid,
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`or other type of actuator.” Id. at col. 2:34-38.
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`“The haptic sensations, such as a pulse, vibration, or spatial texture, are preferably output
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`in accordance with an interaction of a controlled cursor with a graphical object in the graphical
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`environment.” Id. at col. 2:48-51. “For example, a pulse can be output when the cursor is moved
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`between menu elements in a menu, moved over said icon, or moved over a hyperlink.” Id. col.
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`2:51-53. Such haptic feedback “can assist and inform the user of interactions and events within a
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`graphical user interface or other environment and ease cursor targeting tasks.” Id. at col. 2:63-66.
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`“User-independent events can also be relayed to the user using haptic sensations on the touchpad.”
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`Id. at col. 12:50-51. For example, “an appointment reminder, receipt of email, explosion in a
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`game, etc., can be signified using a vibration, pulse, or other time-based force.” Id. at col. 12:51-
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`54.
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`The specification of the ’105 Patent describes several embodiments. First and most
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`prominently, the specification describes a touchpad mouse for a laptop computer. Id. at col. 3:32-
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`col. 6:43 & fig. 1. Another disclosed embodiment is a touchpad on a remote control device, such
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`as a television remote control. Id. at col. 6:44-col. 7:8 & fig. 2. The specification also describes a
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`touch screen device, such as a touch screen PDA. Id. at col. 15:15-col. 16:17 & fig. 8A.
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`Immersion asserts “at least claims 19, 20, and 21” of the ’105 Patent. Compl. ¶ 44; Opp’n
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`at 7 n.1. In the Complaint, Immersion identified claim 19 as a representative claim. Compl. ¶ 45.
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`Case 5:17-cv-03886-LHK Document 63 Filed 03/05/18 Page 4 of 34
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`Claim 19 differs from many of the other claims of the ’105 Patent because it does not appear to be
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`limited to a touch screen or a touch input device.
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`Independent claim 19 and dependent claims 20 and 21 recite:
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`19. A haptic feedback device, comprising:
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`one or more processors configured to receive an input signal and generate a
`force signal based on the input signal,
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`wherein the input signal is associated with a user-independent event,
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`the user-independent event comprising one or more of a reminder event, an
`initiation of a task, a processing of the task, a conclusion of the task, a receipt
`of an email, or an event occurring in a game; and
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`one or more actuators configured to receive the force signal and impart a
`haptic effect based on the force signal.
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`20. The haptic feedback device of claim 19, wherein the haptic feedback device
`comprises a portable computing device, a PDA, a pager, or a cellular phone.
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`21. The haptic feedback device of claim 19, wherein the [haptic feedback]2 device
`comprises a touch screen, a touch pad, or a keypad.
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`’105 patent at col. 18:42-58.
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`3. The ’299 Patent
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`The ’299 Patent is titled “Apparatus and Method for Providing Condition-Based
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`Vibrotactile Feedback.” Compl. Exh. B (’299 patent). It was filed on May 4, 2009 and was issued
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`on January 8, 2013. Id.
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`The ’299 Patent generally relates to systems and methods for monitoring motion
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`parameters of an object manipulated by a user and providing notification once a certain target is
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`reached. ’299 patent abstract; ’299 patent at col. 2:9-11. In some embodiments and in the claims
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`asserted here, notification is provided in the form of haptic feedback. ’299 patent at col. 2:23-24,
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`col. 12:27-67, col. 13:4-5. For example, one embodiment discussed at length in the specification
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`is a toothbrush that monitors the number of brush strokes that a user has completed. Id. at col.
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`1:23-col. 5:15 & fig. 1. The monitoring system “includes a motion sensing device 20, a
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`2 Claim 21 initially used the phrase “touch input device” here, but the patent was officially
`corrected to replace “touch input” with “haptic feedback.” See ECF No. 1-1 at 23.
`4
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`Case 5:17-cv-03886-LHK Document 63 Filed 03/05/18 Page 5 of 34
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`processing device 22, and an alerting device 24. Motion sensing device 20 detects motion of
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`toothbrush 10 caused by the user manipulating toothbrush 10, and more particularly may detect
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`motion only in a regular brushing pattern.” Id. at col. 4:20-25. The specification discloses several
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`embodiments of a motion sensing device, including an accelerometer, a combination of at least
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`one magnetic element and at least one electrical element, a “ball in a cage” configuration, and a
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`force sensor including a piezoelectric element. Id. at col. 5:40-col. 6:32.
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`The processing device “is associated with or includes a counter that is configured to count
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`the number of strokes or stroke cycles to determine when a predetermined threshold is reached.”
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`Id. at col. 4:30-33. “When the accumulative total reaches a predetermined threshold, processing
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`device 22 determines that the user has brushed for an adequate amount.” Id. at col. 4:46-50.
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`“When it is determined that the threshold is reached, processing device 22 instructs alerting device
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`24 to send an alert to the user indicating that the threshold has been reached.” Id. at col. 4:55-58.
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`In addition to the toothbrush, the specification describes other embodiments including a
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`manual ventilator and an exercise strap with vibrotactile feedback. Id. at col. 8:59-col. 10:20 &
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`fig. 6, col. 10:21-col. 11:10 & fig. 7.
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`Immersion asserts “at least claims 14, 15, 16, 18, 20 and 22” of the ’299 Patent. Compl.
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`¶ 56. In the Complaint, Immersion identified claim 14 as a representative claim. Id. ¶ 57. The
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`asserted claims recite:
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`14. An apparatus comprising:
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`a sensor that senses motion of at least a portion of the apparatus and provides
`a sensor output based on the sensed motion;
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`a timer that provides a periodic timer output;
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`a vibrotactile device responsive to the timer that provides a corresponding
`periodic haptic output; and
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`a processing device that receives the sensor output and accumulates counts
`associated with the sensor output, the processing device providing an output to
`the vibrotactile device providing an output to the vibrotactile device once a
`threshold associated with the accumulated counts is reached.
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`15. The apparatus of claim 14, wherein the periodic timer output is adjustable.
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`Case 5:17-cv-03886-LHK Document 63 Filed 03/05/18 Page 6 of 34
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`16. The apparatus of claim 14, wherein the periodic timer output is user-
`selectable.
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`18. The apparatus of claim 14, wherein the sensor comprises an accelerometer.
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`20. An apparatus comprising:
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`a housing;
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`a sensor coupled to the housing that senses motion of the housing and
`provides a sensor output based on if the sensed motion exceeds a
`predetermined threshold;
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`a timer coupled to the housing that measures at least one time period and
`provides a timer output on expiration of the at least one time period; and
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`a vibrotactile device that provides a haptic output based on the sensor output if
`the vibrotactile device receives the sensor output before the timer output and
`provides the haptic output and provides the haptic output based on the timer
`output if the vibrotactile device receives the timer output before the sensor
`output.
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`22. The apparatus of claim 20, wherein the sensor comprises an accelerometer.
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`’299 patent at col. 12:27-col. 13:4-5.
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`4. The ’301 Patent
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`The ’301 Patent is titled “Systems and Methods for Transmitting Haptic Messages.”
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`Compl. Exh. C (’301 patent). It was filed on July 14, 2009 and was issued on January 28, 2014.
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`The ’301 Patent is “directed to systems and methods for mobile devices to be configured to
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`exchange data or messages with each other via network interfaces and provide haptic effects
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`partially based on the exchanged data or messages transmitting haptic messages.” Compl. ¶ 35.
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`The specification identifies a mobile phone as an illustrative embodiment. ’301 patent at col.
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`2:58-59. The illustrative device contains a “display, a user interface device, memory, and a
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`processor in communication with each of these elements.” Id. at col. 3:1-3. The illustrative
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`device also contains a “sensor configured to sense a user’s physical interaction with the mobile
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`device,” and an actuator “configured to output a haptic effect to the user.” Id. at col. 3:8-9.
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`Figure 18 illustrates the steps of the overall operation of one of the methods of transmitting
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`haptic messages:
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`Case 5:17-cv-03886-LHK Document 63 Filed 03/05/18 Page 7 of 34
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`The specification provides details about implementing the steps in the process. “Users
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`may interact with the user interface through movements or gestures,” which the sensors detect.
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`’301 patent at col. 7:7-9. “As the user tilts, shakes, thrusts, or otherwise moves mobile device 102,
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`the one or more sensors 114 detect these movements” and send signals to the processor. Id. at col.
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`7:9-13. “The signals may comprise one or more of: angle of the movement, speed of the
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`movement, distance covered by the movement, or X-Y orientation of the movement.” Id. at col.
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`7:13-16; see also id. at col. 24:22-35 (describing different user movements). The processor then
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`determines a change in a display of the mobile device based at least in part on the sensor signals.
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`Id. col. 24:51-53. “Next, the processor 110 transmits a first data signal to a second mobile device,
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`the first data signal comprising data associated with the user interaction and the movement of the
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`first mobile device 1808.” Id. at col. 24:63-66.
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`“Then, the processor 110 receives a second data signal from the second mobile device
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`1810.” Id. at col. 25:6-7. “Next, processor 110 determines a second change in the display of the
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`first mobile device based at least in part on the second data signal 1812.” Id. at col. 25:15-17.
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`“For example, the user of the second mobile device may move their finger across the second
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`Case 5:17-cv-03886-LHK Document 63 Filed 03/05/18 Page 8 of 34
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`mobile device to draw a picture. The second mobile device may then transmit a corresponding
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`second signal to the first mobile device. The processor 110 of the first mobile device may then
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`modify its display in a way that substantially correspond[s] to the display of the second mobile
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`device.” Id. at col. 25:22-28.
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`“Then, processor 110 determines a haptic effect based at least in part on the second data
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`signal 1814.” Id. at col. 25:33-34. In some embodiments, a user may embed a haptic effect into a
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`message. Id. at col. 10:19-20. “For example, in one embodiment a user may send a message
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`including the word ‘love.’ In such an embodiment, the user may append a haptic effect
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`comprising a beating heart to the word love. Then the recipient can feel the beating heart when
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`the recipient interacts with the word love.” Id. at col. 10:41-46.
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`“Finally, the processor 110 transmits a haptic signal associated with the haptic effect to an
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`actuator 118 configured to output the haptic effect.” Id. at col.25:49-51.
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`Immersion asserts “at least claims 27, 28, 29 and 31” of the ’301 Patent. Compl. ¶ 67. In
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`the Complaint, Immersion identified claim 27 as a representative claim. Id. ¶ 68. The asserted
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`claims recite:
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`27. A system comprising:
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`a processor configured to:
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`receive a first sensor signal from a first sensor, the first sensor configured to
`detect a movement of a first mobile device;
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`receive a second sensor signal from a second sensor, the second sensor
`configured to detect an interaction with the first mobile device;
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`receive a first data signal from a network interface, the network interface
`configured to receive signals transmitted by a second mobile device;
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`determine a change in a display signal based at least in part on the first data
`signal and the second sensor signal;
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`determine a haptic effect based at least in part on the first data signal; and
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`outputting [sic] the haptic effect.
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`28. The system of claim 27, wherein the first sensor and the second sensor are
`each configured to detect one or more of: contact, pressure, acceleration,
`inclination, inertia, or location.
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`Case 5:17-cv-03886-LHK Document 63 Filed 03/05/18 Page 9 of 34
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`29. The system of claim 27, wherein the second sensor comprises a touch-screen.
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`31. The system of claim 27, wherein the processor is further configured to
`transmit a second data signal to the network interface, and the network interface is
`further configured to transmit the second data signal to the second mobile device.
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`’301 patent at col. 28:26-54.
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`B.
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`Procedural History
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`On July 10, 2017, Immersion filed the instant patent infringement suit. ECF No. 1.
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`Immersion alleges that Fitbit “ha[s] infringed and continue[s] to infringe, directly and indirectly
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`through induced and/or contributory infringement,” the patents-in-suit. Id. ¶ 41. The products
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`accused include the Fitbit Flex, Fitbit Flex 2, Fitbit Alta, Fitbit Alta HR, Fitbit Charge, Fitbit
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`Charge 2, Fitbit Charge HR, Fitbit Blaze, and Fitbit Surge. Id.
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`On October 4, 2017, Fitbit filed the instant motion to dismiss. ECF No. 23 (“Mot.”). On
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`November 1, 2017, Immersion filed an opposition. ECF No. 36 (“Opp’n”). On November 17,
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`2017, Fitbit filed a reply. ECF No. 41 (“Reply”).
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`II.
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`LEGAL STANDARD
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`A. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)
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`Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss an
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`action for failure to allege “enough facts to state a claim to relief that is plausible on its face.” Bell
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`Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
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`plaintiff pleads factual content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged. The plausibility standard is not akin to a
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`‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
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`unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
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`For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] factual allegations
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`in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving
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`party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
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`Nonetheless, the Court is not required to “‘assume the truth of legal conclusions merely because
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`they are cast in the form of factual allegations.’” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir.
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`2011) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Mere “conclusory
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`allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.”
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`Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004). Furthermore, “‘[a] plaintiff may plead
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`[him]self out of court’” if he “plead[s] facts which establish that he cannot prevail on his . . .
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`claim.” Weisbuch v. County of Los Angeles, 119 F.3d 778, 783 n.1 (9th Cir. 1997) (quoting
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`Warzon v. Drew, 60 F.3d 1234, 1239 (7th Cir. 1995)).
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`B. Motion to Dismiss for Patent Eligibility Challenges Under 35 U.S.C. § 101
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`Fitbit’s motion argues that the patents-in-suit fail to claim patent-eligible subject matter
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`under 35 U.S.C. § 101 in light of the U.S. Supreme Court’s decision in Alice Corp. Pty. Ltd. v.
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`CLS Bank International, 134 S. Ct. 2347 (2014). The ultimate question whether a claim recites
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`patent-eligible subject matter under § 101 is a question of law. Intellectual Ventures I LLC v.
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`Capital One Fin. Corp., 850 F.3d 1332, 1338 (Fed. Cir. 2017) (“Patent eligibility under § 101 is
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`an issue of law[.]”); In re Roslin Inst. (Edinburgh), 750 F.3d 1333, 1335 (Fed. Cir. 2014) (same).
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`However, the Federal Circuit has identified that there are certain factual questions underlying the
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`§ 101 analysis. See Berkheimer v. HP Inc., 881 F.3d 1360, 1368-69 (Fed. Cir. 2018).
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`Accordingly, a district court may resolve the issue of patent eligibility under § 101 by way of a
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`motion to dismiss. See, e.g., Secured Mail Sols. LLC v. Universal Wilde, Inc., 873 F.3d 905, 912
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`(Fed. Cir. 2017) (affirming determination of ineligibility made on 12(b)(6) motion); Content
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`Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1345 (Fed. Cir.
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`2014) (same).
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`Although claim construction is often desirable, and may sometimes be necessary, to
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`resolve whether a patent claim is directed to patent-eligible subject matter, the Federal Circuit has
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`explained that “claim construction is not an inviolable prerequisite to a validity determination
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`under § 101.” Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266,
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`1273 (Fed. Cir. 2012). Where the court has a “full understanding of the basic character of the
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`claimed subject matter,” the question of patent eligibility may properly be resolved on the
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`pleadings. Content Extraction, 776 F.3d at 1349; see also Genetic Techs. Ltd. v. Bristol-Myers
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`Squibb Co., 72 F. Supp. 3d 521, 539 (D. Del. 2014), aff’d sub nom. Genetic Techs. Ltd. v. Merial
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`L.L.C., 818 F.3d 1369 (Fed. Cir. 2016).
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`C.
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`Substantive Legal Standards Applicable Under 35 U.S.C. § 101
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`1. Patent-Eligible Subject Matter Under 35 U.S.C. § 101
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`Section 101 of Title 35 of the United States Code “defines the subject matter that may be
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`patented under the Patent Act.” Bilski v. Kappos, 561 U.S. 593, 601 (2010). Under § 101, the
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`scope of patentable subject matter encompasses “any new and useful process, machine,
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`manufacture, or composition of matter, or any new and useful improvement thereof.” Id. (quoting
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`35 U.S.C. § 101). These categories are broad, but they are not limitless. Section 101 “contains an
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`important implicit exception: Laws of nature, natural phenomena, and abstract ideas are not
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`patentable.” Alice, 134 S. Ct. at 2354 (citation omitted). These three categories of subject matter
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`are excepted from patent-eligibility because “they are the basic tools of scientific and
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`technological work,” which are “free to all men and reserved exclusively to none.” Mayo
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`Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71 (2012) (citations omitted). The
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`U.S. Supreme Court has explained that allowing patent claims for such purported inventions
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`would “tend to impede innovation more than it would tend to promote it,” thereby thwarting the
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`primary object of the patent laws. Id. However, the U.S. Supreme Court has also cautioned that
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`“[a]t some level, all inventions embody, use, reflect, rest upon, or apply laws of nature, natural
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`phenomena, or abstract ideas.” Alice, 134 S. Ct. at 2354 (alteration, internal quotation marks, and
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`citation omitted). Accordingly, courts must “tread carefully in construing this exclusionary
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`principle lest it swallow all of patent law.” Id.
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`In Alice, the leading case on patent-eligible subject matter under § 101, the U.S. Supreme
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`Court refined the “framework for distinguishing patents that claim laws of nature, natural
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`phenomena, and abstract ideas from those that claim patent-eligible applications of those
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`concepts” originally set forth in Mayo, 566 U.S. at 77. Alice, 134 S. Ct. at 2355. This analysis,
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`generally known as the “Alice” framework, proceeds in two steps as follows:
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`First, we determine whether the claims at issue are directed to one of those patent-
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`Case 5:17-cv-03886-LHK Document 63 Filed 03/05/18 Page 12 of 34
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`ineligible concepts. If so, we then ask, “[w]hat else is there in the claims before
`us?” To answer that question, we consider the elements of each claim both
`individually and “as an ordered combination” to determine whether the additional
`elements “transform the nature of the claim” into a patent-eligible application.
`We have described step two of this analysis as a search for an “‘inventive
`concept’”—i.e., an element or combination of elements that is “sufficient to
`ensure that the patent in practice amounts to significantly more than a patent upon
`the [ineligible concept] itself.”
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`Id. (alterations in original) (citations omitted); see also In re TLI Commc’ns LLC Patent Litig., 823
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`F.3d 607, 611 (Fed. Cir. 2016) (describing “the now familiar two-part test described by the [U.S.]
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`Supreme Court in Alice”).
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`2. Alice Step One—Identification of Claims Directed to an Abstract Idea
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`Neither the U.S. Supreme Court nor the Federal Circuit has set forth a bright-line test
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`separating abstract ideas from concepts that are sufficiently concrete so as to require no further
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`inquiry under the first step of the Alice framework. See, e.g., Alice, 134 S. Ct. at 2357 (noting that
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`“[the U.S. Supreme Court] need not labor to delimit the precise contours of the ‘abstract ideas’
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`category in this case”); DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir.
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`2014) (observing that the U.S. Supreme Court did not “delimit the precise contours of the ‘abstract
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`ideas’ category” in Alice (citation omitted)). As a result, in evaluating whether particular claims
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`are directed to patent-ineligible abstract ideas, courts have generally begun by “compar[ing]
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`claims at issue to those claims already found to be directed to an abstract idea in previous cases.”
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`Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1334 (Fed. Cir. 2016).
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`Two of the U.S. Supreme Court’s leading cases concerning the “abstract idea” exception
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`involved claims held to be abstract because they were drawn to longstanding, fundamental
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`economic practices. See Alice, 134 S. Ct. at 2356 (claims “drawn to the concept of intermediated
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`settlement, i.e., the use of a third party to mitigate settlement risk” were directed to a patent-
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`ineligible abstract idea); Bilski, 561 U.S. at 611-12 (claims drawn to “the basic concept of
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`hedging, or protecting against risk” were directed to a patent-ineligible abstract idea because
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`“[h]edging is a fundamental economic practice long prevalent in our system of commerce and
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`taught in any introductory finance class” (citation omitted)).
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`Similarly, the U.S. Supreme Court has recognized that information itself is intangible. See
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`Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 451 n.12 (2007). Accordingly, the Federal
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`Circuit has generally found claims abstract where they are directed to some combination of
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`acquiring information, analyzing information, and/or displaying the results of that analysis. See
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`FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1094-95 (Fed. Cir. 2016) (claims
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`“directed to collecting and analyzing information to detect misuse and notifying a user when
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`misuse is detected” were drawn to a patent-ineligible abstract idea); Elec. Power Grp., LLC v.
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`Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (claims directed to an abstract idea because
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`“[t]he advance they purport to make is a process of gathering and analyzing information of a
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`specified content, then displaying the results, and not any particular assertedly inventive
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`technology for performing those functions”); In re TLI Commc’ns LLC, 823 F.3d at 611 (claims
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`were “directed to the abstract idea of classifying and storing digital images in an organized
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`manner”); see also Elec. Power Grp., 830 F.3d at 1353-54 (collecting cases).
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`However, the determination of whether other types of computer-implemented claims are
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`abstract has proven more “elusive.” See, e.g., Internet Patents Corp. v. Active Network, Inc., 790
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`F.3d 1343, 1345 (Fed. Cir. 2015) (“[P]recision has been elusive in defining an all-purpose
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`boundary between the abstract and the concrete[.]”). As a result, in addition to comparing claims
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`to prior U.S. Supreme Court and Federal Circuit precedents, courts considering computer-
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`implemented inventions have taken varied approaches to determining whether particular claims
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`are directed to an abstract idea.
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`For example, courts have considered whether the claims “purport to improve the
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`functioning of the computer itself,” Alice, 134 S. Ct. at 2359, which may suggest that the claims
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`are not abstract, or instead whether “computers are invoked merely as a tool” to carry out an
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`abstract process, Enfish, 822 F.3d at 1336; see also id. at 1335 (“[S]ome