Case 1:17-cv-01041-RGA Document 375 Filed 03/05/20 Page 1 of 13 PageID #: 7456
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`CG TECHNOLOGY DEVELOPMENT, LLC,
`INTERACTIVE GAMES LIMITED, and
`INTERACTIVE GAMES LLC,
`Plaintiffs,
`
`V.
`
`Civil Action No. 1 :17-cv-01041 -RGA
`
`FANDUEL, INC.,
`
`Defendant.
`
`MEMORANDUM OPINION
`
`Daniel M. Silver, Alexandra M. Joyce, MCCARTER & ENGLISH, LLP, Wilmington, DE;
`Robert F. Shaffer (argued), Scott A. Allen, Abdul Ghani S. Hamadi, FINNEGAN,
`HENDERSON, FARABOW, GARRETT & DUNNER, LLP, Washington, DC;
`
`Attorneys for Plaintiffs
`
`Kenneth L. Dorsney, MORRIS JAMES LLP, Wilmington, DE; Eric A. Buresh, Megan J.
`Redmond (argued), Carrie A. Bader, ERISE IP, P.A. , Overland Park, KS;
`
`Attorneys for Defendant
`
`Marchi
`
`2020
`
`

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`Case 1:17-cv-01041-RGA Document 375 Filed 03/05/20 Page 2 of 13 PageID #: 7457
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`AN~~
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`Before the Court is Defendant's Rule 12(c) Motion for Judgment on the Pleadings. (D.I.
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`340). The Court has considered the parties ' briefing. (D .I. 341 , 348, 3 50). The Court heard oral
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`argument on February 13, 2020 . (D.I. 374).
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`I.
`
`BACKGROUND
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`Plaintiffs filed this action on April 8, 2016 in the District of Nevada, eventually alleging
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`infringement of twelve patents including U.S . Patent No. 8,771 ,058 ("the '058 patent"). (D.I.
`
`31). The District of Nevada transferred the instant case to this Court on July 27, 2017. (D.I.
`
`219). Defendant has been successful at invalidating asserted claims. (D.I. 341 at 1). Claim 6 of
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`the '058 patent is the only remaining claim at issue.
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`The ' 058 patent is directed to determining game configurations on a mobile device based
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`on the location of that device. ('058 patent, Abstract, col. 12:22-28, col. 60 :2-28). Claim 6 is
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`dependent on claim 1. The Patent Trial and Appeal Board found claim 1 invalid under § 103 .
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`(D .I. 341, Ex. A at 48). Claim 1 reads as follows:
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`1. A method comprising:
`determining a first location of a mobile gaming device;
`determining a first game configuration associated with the first location;
`generating, by a computer system, a first game outcome using the first game
`configuration;
`instructing a display screen of the mobile gaming device to display an indication of the
`first game outcome;
`determining a first payout associated with the first game outcome;
`crediting a player account with a first amount based on the first payout;
`determining a second location of the mobile gaming device, wherein the second location
`is different from the first location;
`determining a second game configuration associated with the second location, wherein
`the second game configuration is different from the first game configuration;
`generating, by the computer system, a second game outcome using the second game
`configuration;
`instructing the display screen of the mobile gaming device to display an indication of the
`second game outcome;
`determining a second payout associated with the second game outcome; and
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`

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`crediting the player account with a second amount based on the second payout.
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`Claim 6 reads:
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`6. The method of 1, in which determining the first game configuration includes:
`accessing a lookup table which contains an ordered list of locations and associated game
`configurations;
`finding within the lookup table the first location; and
`determining that the first game configuration is associated with the first location.
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`At claim construction, I determined that "lookup table" means "an array or matrix of data
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`that contains items that are searched." (D.I. 337 at 4).
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`II.
`
`LEGALSTANDARD
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`A. Rule 12(c)
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`A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is
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`reviewed under the same standard as a Rule 12(b)(6) motion to dismiss when the Rule 12(c) motion
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`alleges that the plaintiff failed to state a claim upon which relief can be granted. See Turbe v.
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`Gov't of the Virgin Islands, 938 F.2d 427,428 (3d Cir. 1991); Revell v. Port Auth., 598 F.3d 128,
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`134 (3d Cir. 2010). The court must accept the factual allegations in the complaint and take them
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`in the light most favorable to the non-moving party. See Erickson v. Pardus, 551 U.S. 89, 94
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`(2007); Christopher v. Harbury, 536 U.S. 403 , 406 (2002). "When there are well-ple[d] factual
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`allegations, a court should assume their veracity and then determine whether they plausibly give
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`rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) . The court must "draw
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`on its judicial experience and common sense" to make the determination. See id. In ruling on a
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`motion for judgment on the pleadings, the court is generally limited to the pleadings. Mele v. Fed.
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`Reserve Bank of NY, 359 F.3d 251 ,257 (3d Cir. 2004). The court may, however, consider
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`documents incorporated into the pleadings and those that are in the public record. Pension Ben.
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`Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
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`2
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`B. 35 U.S.C. § 101
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`Section 101 of the Patent Act defines patent-eligible subject matter. It provides:
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`"Whoever invents or discovers any new and useful process, machine, manufacture, or
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`composition of matter, or any new and useful improvement thereof, may obtain a patent therefor,
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`subject to the conditions and requirements of this title." 35 U.S .C. § 101. The Supreme Court
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`has recognized an implicit exception for three categories of subject matter not eligible for
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`patentability-laws of nature, natural phenomena, and abstract ideas. Alice Corp. Pty. v. CLS
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`Bank Int '!, 134 S. Ct. 2347, 2354 (2014). The purpose of these carveouts is to protect the "basic
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`tools of scientific and technological work." Mayo Collaborative Servs. v. Prometheus Labs.,
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`Inc., 132 S. Ct. 1289, 1293 (2012). " [A] process is not unpatentable simply because it contains a
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`law of nature or a mathematical algorithm," as "an application of a law of nature or mathematical
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`formula to a known structure or process may well be deserving of patent protection." Id. at
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`1293-94 (cleaned up) . " [T]o transform an unpatentable law of nature into a patent-eligible
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`application of such a law, one must do more than simply state the law of nature while adding the
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`words ' apply it."' Id. at 1294 ( emphasis omitted).
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`The Supreme Court reaffirmed the framework laid out in Mayo "for distinguishing
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`patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim
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`patent-eligible applications of those concepts." Alice, 134 S. Ct. at 2355. First, the court must
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`determine whether the claims are drawn to a patent-ineligible concept. Id. If the answer is yes,
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`the court must look to "the elements of the claim both individually and as an 'ordered
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`combination"' to see if there is an "' inventive concept' -i.e., an element or combination of
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`elements that is ' sufficient to ensure that the patent in practice amounts to significantly more
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`than a patent upon the [ineligible concept] itself. "' Id. (alteration in original). "A claim that
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`3
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`recites an abstract idea must include ' additional features' to ensure that the [claim] is more than a
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`drafting effort designed to monopolize the [abstract idea]." Id. at 2357. Further, "the prohibition
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`against patenting abstract ideas cannot be circumvented by attempting to limit the use of [the
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`idea] to a particular technological environment." Id. at 2358 (quoting Bilski v. Kappas, 561 U.S.
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`593, 610-11 (2010)). Thus, "the mere recitation of a generic computer cannot transform a
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`patent-ineligible abstract idea into a patent-eligible invention." Id. For this second step, the
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`machine-or-transformation test can be a "useful clue," although it is not determinative.
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`Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716 (Fed. Cir. 2014).
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`"Whether a claim is drawn to patent-eligible subject matter under § 101 is an issue of
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`law," and "is a matter of both claim construction and statutory construction." In re Bilski, 545
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`F.3d 943 , 951 (Fed. Cir. 2008), aff'd sub nom. Bilski v. Kappas, 561 U.S. 593 (2010). "Claim
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`construction is a question oflaw . .. . " In re Nuijten, 500 F.3d 1346, 1352 (Fed. Cir. 2007). At
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`Alice step two, however, " [w]hether something is well-understood, routine, and conventional to a
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`skilled artisan at the time of the patent is a factual determination." Berkheimer v. HP Inc., 881
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`F.3d 1360, 1369 (Fed. Cir. 2018) .
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`III.
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`DISCUSSION
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`A. Law of the Case
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`"The law-of-the-case doctrine generally provides that when a court decides upon a rule of
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`law, that decision should continue to govern the same issues in subsequent stages in the same
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`case." Musacchio v. United States, 136 S. Ct. 709, 716 (2016) (cleaned up). Plaintiffs argue that
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`the law-of-the-case doctrine applies here because the Nevada court already decided that the claims
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`of the '058 patent are not directed to a patent-ineligible abstract idea. (D.I. 348 at 1). Plaintiffs
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`4
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`contend that this should end the § 101 analysis and that I should deny Defendant' s motion without
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`further consideration. (Id.).
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`In Plaintiffs' associated case against Ewin.Party, the Nevada court determined that
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`representative claim 19 of the ' 058 patent was not abstract and therefore denied Ewin.Party 's
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`motion to dismiss under§ 101 ("Nevada I"). CG Tech. Dev., LLC v. Ewin.Party (USA) , Inc.,
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`2016 WL 6089696, at *4-5 (D. Nev. Oct. 18, 2016) . Plaintiffs argue that because the instant
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`case was consolidated with the Ewin.Party case, this Court is bound by the Nevada I decision.
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`(D.I. 348 at 2) . I do not agree. The Nevada court consolidated the related cases for pretrial
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`purposes after it issued the Nevada I decision. See CG Tech. Dev., LLC v. FanDuel, Inc., Case
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`No. 2:16-cv-00801-RCJ-VCF, D.I. 92 (D. Nev. Dec. 12, 2016). That consolidation does not
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`mean a previous decision in one case (Ewin.Party) retroactively applies to the other consolidated
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`cases.
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`Plaintiffs further argue that because, after the consolidation, the Nevada court again
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`determined that claim 19 was not abstract ("Nevada II"), the consolidated cases are therefore
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`bound by that decision. (D.I. 374 at 32: 12-17). This argument fails because of the posture of the
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`Nevada II decision, which denied Ewin.Party 's motion for reconsideration of the Nevada I
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`decision. CG Tech. Dev. , LLC v. Ewin.Party (USA), Inc., Case No. 2:16-cv-00871-RCJ-VCF,
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`D.I. 63 (D. Nev. Jan. 4, 2017). In the Nevada II decision, the district court affirmed its Nevada I
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`decision that denied Ewin.Party' s motion to dismiss under § 101. Id. The Nevada II decision
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`did not address any of the consolidated cases or mention that the Ew in.Party case had been
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`consolidated with others in the interim period. Id. The Nevada II decision was not entered on
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`the consolidated docket, but rather on that of the Ew in. Party case. Neither the Nevada I decision
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`5
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`nor the Nevada II decision are part of the "same case" as the instant case. The law-of-the-case
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`doctrine does not apply.
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`B. Abstract Idea
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`To distinguish patents that claim ineligible concepts "from those that claim patent(cid:173)
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`eligible applications of those concepts ... we [first] determine whether the claims at issue are
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`directed to [an abstract idea]." Alice, 134 S. Ct. at 2355. "The ' abstract ideas' category
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`embodies 'the longstanding rule that an idea of itself is not patentable."' Id. ( quoting Gottschalk
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`v. Benson, 409 U.S. 63, 67 (1972)). "The Supreme Court has not established a definitive rule to
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`determine what constitutes an ' abstract idea' sufficient to satisfy the first step of the Mayo/Alice
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`inquiry." Enjish, LLC v. Microsoft Corp., 822 F.3d 1327, 1334 (Fed. Cir. 2016). The Supreme
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`Court has recognized, however, that "fundamental economic practice[s]," Bilski, 561 U.S. at 611 ,
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`"method[s] of organizing human activity," Alice, 134 S. Ct. at 2356, and mathematical
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`algorithms, Benson, 409 U.S . at 64, are abstract ideas. In navigating the parameters of such
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`categories, courts have generally sought to "compare claims at issue to those claims already
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`found to be directed to an abstract idea in previous cases." Enjish, 822 F.3d at 1334. "[S]ome
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`improvements in computer-related technology when appropriately claimed are undoubtedly not
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`abstract." Id. at 1335. "[I]n determining whether the claims are directed to an abstract idea, we
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`must be careful to avoid oversimplifying the claims because ' [ a ]t some level, all inventions ...
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`embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas."'
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`In re TL! Commc 'ns LLC Patent Litig. , 823 F.3d 607, 611 (Fed. Cir. 2016) (alterations in
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`original) (quoting Alice, 134 S. Ct. at 2354).
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`Defendant asserts that claim 6 of the '058 patent is directed to an abstract idea because it
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`"falls within the category of ' method[ s] of organizing human activity ."' (D .I. 341 at 4 ).
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`6
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`Plaintiffs respond that claim 6 is not abstract because it is a specific improvement of the
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`"operation of a mobile gaming device and the way it displays game configurations to an end
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`user." (D.I. 348 at 8). For the following reasons, I determine that claim 6 of the ' 058 patent is
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`directed to the abstract idea of "determining game configuration based on location."
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`Claim 6 of the ' 058 patent is a method claim that depends on independent claim 1. The
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`method embodies the basic concept of determining game configuration based on the location of a
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`mobile device. The steps of the method can be summarized as follows: (1) determining the
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`location of a mobile gaming device ('058 patent, col. 60:3) ; (2) using a lookup table to determine
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`the game configuration associated with that location (id. col. 60:47-51); and (3) implementing
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`that game configuration (id. col. 60:6-14). These are basic steps of determining the
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`configuration of a game based on the location of a mobile device, a method of organizing human
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`activity.
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`Plaintiffs argue that claim 6 is not directed to an abstract idea because it "recites an
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`improvement that alters the operation [of] traditional mobile gaming devices in a very specific
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`way using specific data structures." (D.I. 348 at 9). To support this argument, Plaintiffs rely on
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`cases where the Federal Circuit has found "similar" inventions non-abstract and patentable.
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`(Id.) . Plaintiffs point to Enfish, where the Federal Circuit determined that claims which focused
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`on "an improvement to computer functionality itself, not on ... tasks for which a computer is
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`used in its ordinary capacity," were not abstract under Alice. 822 F.3d at 1336. Plaintiffs
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`contend that claim 6 is similar in that it teaches an improvement to a traditional gaming system
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`because it forces the gaming devices to "function differently based on the determined
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`geofencing. " (D.I. 348 at 9). The claims in Enjish, however, are not similar to claim 6. In
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`Enfish, the claims were "specifically directed to a self-referential table for a computer database"
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`7
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`that is designed to "improve the way a computer stores and retrieves data in memory." 822 F.3d
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`at 1337, 1339 (emphasis omitted). Rather than improving the function of a computer itself,
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`claim 6 employs a generic data structure, a lookup table, to determine the game configuration
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`associated with a location.
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`Plaintiffs also rely on SRI International, Inc. v. Cisco Systems, Inc., 930 F.3d 1295 (Fed.
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`Cir. 2019). In that case, the Federal Circuit found the claims, which taught a specific technique
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`of using network monitors to identify intruders into the network, to be "directed to an
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`improvement in computer network technology" and therefore not abstract. SRI International,
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`930 F.3d at 1303. The Federal Circuit distinguished the claims at issue in SRI International from
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`those in Electric Power Group, LLC v. Alstom SA., 830 F.3d 1350 (Fed. Cir. 2016): "The
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`Electric Power claims were drawn to using computers as tools to solve a power grid problem,
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`rather than improving the functionality of computers and computer networks themselves" like
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`the claims in SRI International. Id. at 1304. The claims at issue in Electric Power were directed
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`to "[a] method of detecting events on an interconnected electric power grid in real time over a
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`wide area and automatically analyzing the events on the interconnected electric power grid."
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`Electric Power, 830 F.3d at 1351. The Federal Circuit determined that those claims were
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`focused "on the combination of[] abstract-idea processes. The advance [the claims] purport to
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`make is a process of gathering and analyzing information of a specified content, then displaying
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`the results, and not any particular assertedly inventive technology for performing those
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`functions." Id. at 1354. Thus, the Federal Circuit determined that the claims were directed to an
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`abstract idea. Id.
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`Claim 6 is similar to the claims in Electric Power, not to those in SRI International. Like
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`the Electric Power claims, claim 6 is directed to "the combination of[] abstract idea processes."
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`8
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`Id. Determining the location of a mobile gaming device, determining the game configuration
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`associated with that location, and implementing that game configuration are each "independently
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`abstract ideas that use computers as tools." Id.
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`Plaintiffs further argue that McRO, Inc. v. Bandai Namco Games America, Inc. , 837 F.3d
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`1299 (Fed. Cir. 2016) supports their argument that claim 6 is patentable. (D.I. 348 at 10). In that
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`case, the Federal Circuit held that the claims at issue were directed to a "specific asserted
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`improvement in computer animation." McRO, 387 F.3d at 1314. Because the patent
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`"incorporat[ ed] the specific features of the rules as claim limitations," the Federal Circuit found
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`that the claims were "limited to a specific process for automatically animating characters using
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`particular information and techniques" and were therefore not directed to patent-ineligible
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`subject matter. Id. at 1316. Plaintiffs argue that the lookup table of claim 6 is similar "specific
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`structure" to that in McRO . (D.I. 348 at 10). I disagree. The "specific structure" in McRO was
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`the combined order of the specific, subjective rules that were the means of automating lip
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`synchronization. McRO, 387 F.3d at 1315. Claim 6, however, merely uses a generic data
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`structure, a lookup table, "as a tool to automate conventional activity." Id. at 1314. Claim 6
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`describes searching a data structure in an ordinary fashion to find the game configuration
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`associated with a location.
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`Therefore, claim 6 of the ' 058 patent is directed to the abstract idea of "determining game
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`configuration based on location."
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`C. Inventive Concept
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`The decision that a patent is directed to an abstract idea "does not render the subject
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`matter ineligible." Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343 , 1346 (Fed.
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`Cir. 2015). Having decided that claim 6 is directed to an abstract idea, the Court must next
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`"determine whether the [ claim does] significantly more than simply describe the abstract
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`method." Ultramercial, 772 F.3d at 715. Since "a known idea, or one that is routine and
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`conventional, is not inventive in patent terms," this analysis "favors inquiries analogous to those
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`undertaken for determination of patentable invention." Internet Patents, 790 F.3d at 1346.
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`Indeed, the Federal Circuit has noted that the two stages of the Alice two-step inquiry "are
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`plainly related" and "involve overlapping scrutiny of the content of the claims .... " Elec.
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`Power Grp., 830 F.3d at 1353. Furthermore, neither "[a] simple instruction to apply an abstract
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`idea on a computer," nor "claiming the improved speed or efficiency inherent with applying the
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`abstract idea on a computer" satisfies the requirement of an "inventive concept." Intellectual
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`Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1367 (Fed. Cir. 2015); see also
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`Bancorp Servs., LLC v. Sun Life Assurance Co. of Can., 687 F.3d 1266, 1278 (Fed. Cir. 2012)
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`("[T]he fact that the required calculations could be performed more efficiently via a computer
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`does not materially alter the patent eligibility of the claimed subject matter.").
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`Plaintiff argues that claim 6 of the '058 patent has an inventive concept because it
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`provides a solution "to the real-world need to address the implications of differing jurisdictions
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`and their effect on permitted game configurations." (D.I. 348 at 12-13). At oral argument,
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`Plaintiff pointed to Bascom Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341
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`(Fed. Cir. 2016) to support the notion that there can be an inventive concept as long as there is a
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`"nonconventional, nonroutine arrangement of what would otherwise be considered conventional
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`and routine limitations." (D.1. 374 at 38:24, 39:2-7). In Bascom, the Federal Circuit determined
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`that the claims at issue contained an inventive concept "in the non-conventional and non-generic
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`arrangement of known, conventional pieces." Bascom, 827 F.3d at 1350. The patent in Bascom
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`taught an improvement to internet content filtering that "could be adapted to many different
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`users' preferences while also installed remotely in a single location." Id. The Federal Circuit
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`determined that the "patent describe[d] how its particular arrangement of elements is a technical
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`improvement over prior art ways of filtering such content" rather than the claims merely
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`instructing that the abstract idea of filtering be carried out by generic computer components. Id.
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`Claim 6 of the ' 058 patent, however, does not have a "particular arrangement of
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`elements" that creates an inventive concept. The limitations of claim 6 instead teach the basic
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`steps for using a conventional lookup table.
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`The specification of the ' 058 patent identifies a lookup table as an "example" of "a
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`computer data structure [that] may be used to keep a record" of game configurations "in different
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`locations." ('058 patent, col. 6:7-12). At claim construction, the parties agreed that the term
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`"lookup table" has a plain and ordinary meaning understood by those of skill in the art at the
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`time of the patent, which has a priority date of February 15, 2007. (D.I. 337 at 4; D.I. 31-10 at
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`1 ). To resolve this meaning, I turned to the definition of "lookup table" in the Computer
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`Desktop Encyclopedia, Version 20.4 (2007). (Id.) . I determined that "lookup table" means "an
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`array or matrix of data that contains items that are searched." (Id. ). 1 The fact that the patent
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`does not specifically define a lookup table but instead refers to it as an example of a data
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`structure that may be used, and the fact that the plain and ordinary meaning of "lookup table"
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`was readily discerned from an encyclopedia entry, demonstrate that a lookup table is a
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`conventional and well-known data structure. A lookup table itself is not an inventive concept.
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`In claim 6, the lookup table is also used in a conventional way; it is searched to find the
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`game configuration associated with a location. Searching a lookup table used to store game
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`configurations associated with locations is not an inventive concept sufficient to transform a
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`1 This usage is similar to that in the 2002 Microsoft Computer Dictionary (D.I. 306-1 at 419 of 445 ): "a previously
`constructed table of values."
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`11
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`patent-ineligible abstract idea into an eligible one. See BSG Tech LLC v. Buyseasons, Inc., 899
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`F.3d 1281, 1290-91 (Fed. Cir. 2018) ("If a claim' s only ' inventive concept' is the application of
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`an abstract idea using conventional and well-understood techniques, the claim has not been
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`transformed into a patent-eligible application of an abstract idea."); Berkheimer, 881 F.3d at
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`1370 (holding that the claim limitations "amount to no more than performing the abstract idea of
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`parsing and comparing data with conventional computer components" and thus lacked an
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`inventive concept). Thus, viewed separately or as an ordered combination, the elements of claim
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`6 do not recite an inventive concept, and cannot transform the abstract idea into a patent-eligible
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`application.
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`IV.
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`CONCLUSION
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`Defendant gambled with a Rule 12(c) motion and won the jackpot. For the foregoing
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`reasons, the Court GRANTS Defendant's Motion for Judgment on the Pleadings (D.1. 340). An
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`accompanying order will issue.
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`12
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