NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`INTELLECTUAL VENTURES I LLC,
`INTELLECTUAL VENTURES II LLC,
`Plaintiffs-Appellants
`
`v.
`
`SYMANTEC CORP., VERITAS TECHNOLOGIES
`LLC,
`Defendants-Cross-Appellants
`______________________
`
`2017-1814, 2017-1858
`______________________
`
`Appeals from the United States District Court for the
`District of Delaware in No. 1:13-cv-00440-LPS, Chief
`Judge Leonard P. Stark.
`______________________
`
`Decided: March 15, 2018
`______________________
`
`JOHN PIERRE LAHAD, Susman Godfrey LLP, Houston,
`
`TX, argued for plaintiffs-appellants. Also represented by
`RICHARD W. HESS; PARKER C. FOLSE, III, DANIEL J. SHIH,
`Seattle, WA.
`
` GABRIEL BELL, Latham & Watkins LLP, Washington,
`DC, argued for defendants-cross-appellants. Also repre-
`
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`INTELLECTUAL VENTURES I LLC,
`INTELLECTUAL VENTURES II LLC,
`Plaintiffs-Appellants
`
`v.
`
`SYMANTEC CORP., VERITAS TECHNOLOGIES
`LLC,
`Defendants-Cross-Appellants
`______________________
`
`2017-1814, 2017-1858
`______________________
`
`Appeals from the United States District Court for the
`District of Delaware in No. 1:13-cv-00440-LPS, Chief
`Judge Leonard P. Stark.
`______________________
`
`Decided: March 15, 2018
`______________________
`
`JOHN PIERRE LAHAD, Susman Godfrey LLP, Houston,
`
`TX, argued for plaintiffs-appellants. Also represented by
`RICHARD W. HESS; PARKER C. FOLSE, III, DANIEL J. SHIH,
`Seattle, WA.
`
` GABRIEL BELL, Latham & Watkins LLP, Washington,
`DC, argued for defendants-cross-appellants. Also repre-
`
`
`
`
`
` 2
`
` INTELLECTUAL VENTURES I LLC v. SYMANTEC CORP.
`
`sented by ROBERT J. GAJARSA; LISA K. NGUYEN, Menlo
`Park, CA.
`
`______________________
`
`Before O’MALLEY, SCHALL, and WALLACH, Circuit Judges.
`O’MALLEY, Circuit Judge.
`Intellectual Ventures I LLC and Intellectual Ventures
`II LLC (together, “IV”) appeal from (1) the district court’s
`grant of summary judgment of patent ineligibility under
`35 U.S.C § 101 of claims 25 and 33 of U.S. Patent No.
`5,537,533 (“the ’533 patent”); (2) the district court’s grant
`of summary judgment of noninfringement of claims 25
`and 33 of the ’533 patent; (3) the district court’s construc-
`tion of “local persistent storage device” and “remote
`persistent storage device” in U.S. Patent No. 6,598,131
`(“the ’131 patent”), as the construction of these terms
`underlies the parties’ stipulated judgment of nonin-
`fringement of the ’131 patent; and (4) the district court’s
`grant of Appellees Symantec Corporation and Veritas
`Technologies LLC’s (together, “Symantec”) motion to
`strike IV’s amended infringement contentions for the ’131
`patent, because the doctrine of equivalents could not
`apply to the “persistent storage device” terms as the
`district court construed them. Symantec cross-appeals,
`conditionally, the district court’s determination that the
`“substantially concurrent copy of data” limitation in the
`’533 patent and the “performed substantially concurrent-
`ly” limitation in the ’131 patent are not indefinite. See
`Intellectual Ventures I LLC v. Symantec Corp., No. 13-cv-
`440, 2016 WL 948879 (D. Del. Mar. 10, 2016) (Claim
`Construction Order); Intellectual Ventures I LLC v. Sy-
`mantec Corp., 234 F. Supp. 3d 601 (D. Del. 2017) (Sum-
`mary Judgment Order).
`After fully reviewing and considering the patents at
`issue and the parties’ arguments, we conclude the district
`court did not err in finding claims 25 and 33 of the ’533
`
`
`
`INTELLECTUAL VENTURES I LLC v. SYMANTEC CORP.
`
`3
`
`patent ineligible under 35 U.S.C. § 101. The district court
`correctly found that the claims were directed to the ab-
`stract idea of backing up data, and that the claim limita-
`tions
`lacked an
`inventive concept as they
`invoke
`conventional computer components that do not function in
`combination in an inventive manner. Summary Judg-
`ment Order, at 607–09 (citing ’533 patent, col. 5, ll. 28–29,
`id. col. 5, ll. 34–35, id. col. 6, ll. 60–61, id. col. 11, ll. 12–
`13).1
`The district court also did not err in granting sum-
`mary judgment of noninfringement as to claims 25 and 33
`
`
`1 Our recent decision in Berkheimer v. HP Inc., 881
`F.3d 1360 (Fed. Cir. 2018) does not compel a different
`conclusion. IV filed a notice of supplemental authority
`arguing that Berkheimer compels reversal and remand of
`the district court’s judgment because “there is a genuine
`issue of material fact as to whether the ’533 claims im-
`prove remote data mirroring in ‘an inventive manner’ or
`perform
`‘well-understood, routine, and conventional
`activities to a skilled artisan.’” Citation of Suppl. Author-
`ity at 2, Intellectual Ventures I LLC v. Symantec Corp.,
`No. 17-1814 (Fed. Cir. Mar. 1, 2018), ECF No. 79 (quoting
`Berkheimer, 881 F.3d at 1370). But, as the district court
`explained in detail, “the claims invoke conventional
`computer components that do not supply an inventive
`concept,” and “[t]he specification confirms that the indi-
`vidual components . . . are conventional, generic, and
`operate as expected.” Summary Judgment Order, at 608
`(citations omitted). Moreover, the district court found
`that IV failed to offer evidence to show that the order of
`the steps was unconventional. Id. IV also acknowledged
`at oral argument that it did not offer expert testimony to
`show the lack of conventionality of its components. Oral
`Argument
`at
`23:26–45,
`http://oralarguments.cafc.
`uscourts.gov/default.aspx?fl=2017-1814.mp3.
`
`
`
`
`
` 4
`
` INTELLECTUAL VENTURES I LLC v. SYMANTEC CORP.
`
`of the ’533 patent. IV advocated for the construction of
`“substantially concurrent” copy of data the district court
`adopted, which imputes a causal limitation to distinguish
`between delays designed into the system and delays for
`processing the data being copied. Claim Construction
`Order, at *4. Under this construction, we agree with the
`district court that no reasonable juror could find that the
`accused VVR product copies a “substantially concurrent”
`copy of data to a data transfer unit from the primary
`network server, as the write to the SRL and the write to
`the remote servers are separated by a step deliberately
`designed into the process. Summary Judgment Order, at
`610.2
`The district court also did not err in its construction of
`“local persistent storage device” and “remote persistent
`storage device located remotely from the device” in the
`’131 patent. Claim Construction Order, at *5–6. These
`constructions are drawn directly from the specification of
`the ’131 patent, which provides that a “persistent storage
`device” is defined as “a physical device that is physically
`attached to a computer using a standard physical inter-
`face” and “contains a . . . permanent medium.” ’131
`patent, col. 1, ll. 40–55. The specification also explains
`that “[t]he data image stored on the [remote persistent
`storage device] is referred to as the ‘master data image’
`and the data image cached on the [local persistent storage
`
`
`2 As we affirm the district court’s grant of summary
`judgment of noninfringement as to the ’533 patent and
`the challenged claim constructions in the ’131 patent, we
`need not reach Symantec’s alternative argument that the
`judgment of noninfringement can be affirmed by adopting
`its construction of “data transfer unit,” which requires
`that the data transfer unit be physically separate from
`the primary and remote network servers.
`
`
`
`INTELLECTUAL VENTURES I LLC v. SYMANTEC CORP.
`
`5
`
`device] is referred to as the ‘local data image’ or ‘cached
`data image.’” Id. col. 3, ll. 54–57.
`IV has not preserved an appeal of its motion to strike
`its amended infringement contentions. The parties
`stipulated to noninfringement of “the ’131 patent, either
`literally or under the Doctrine of Equivalents, under the
`Court’s construction of ‘local persistent storage device’
`and ‘remote persistent storage device.’” J.A. 3112. The
`only conditional aspect of this stipulated judgment is the
`construction of the “local persistent storage device” and
`“remote persistent storage device” terms. As we affirm
`these constructions, we may not reach IV’s challenge to
`the district court’s grant of the motion to strike.3
`We have considered IV’s other arguments and find
`them without merit. For the foregoing reasons, and for
`those expressed in more detail in the district court’s
`thorough and carefully considered orders, we affirm the
`district court’s judgment.
`AFFIRMED
`COSTS
`
`No costs.
`
`
`3 Because we affirm the district court’s judgments
`on summary judgment of noninfringement of the asserted
`claims of the ’533 patent and the construction of the
`persistent storage device terms that underlies the stipu-
`lated judgment of noninfringement of the ’131 patent, we
`also need not reach Symantec’s conditional cross-appeal
`on indefiniteness.
`
`
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