Case: 18-2003 Document: 61 Page: 1 Filed: 04/14/2020
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ERICSSON INC., TELEFONAKTIEBOLAGET LM
`ERICSSON,
`Plaintiffs-Appellees
`
`v.
`
`TCL COMMUNICATION TECHNOLOGY
`HOLDINGS LIMITED, TCT MOBILE LIMITED, TCT
`MOBILE (US) INC.,
`Defendants-Appellants
`______________________
`
`2018-2003
`______________________
`
`Appeal from the United States District Court for the
`Eastern District of Texas in No. 2:15-cv-00011-RSP, Mag-
`istrate Judge Roy S. Payne.
`______________________
`
`Decided: April 14, 2020
`______________________
`
`THEODORE STEVENSON, III, McKool Smith, PC, Dallas,
`TX, argued for plaintiffs-appellees. Also represented by
`WARREN LIPSCHITZ, NICHOLAS M. MATHEWS; JAMES A.
`BARTA, RAYINER HASHEM, JEFFREY A. LAMKEN, MICHAEL
`GREGORY PATTILLO, JR., MoloLamken LLP, Washington,
`DC.
`
` LIONEL M. LAVENUE, Finnegan, Henderson, Farabow,
`Garrett & Dunner, LLP, Reston, VA, argued
`for
`
`

`

`Case: 18-2003 Document: 61 Page: 2 Filed: 04/14/2020
`
`2
`
`ERICSSON INC. v. TCL COMMUNICATION TECHNOLOGY
`
`defendants-appellants. Also represented by MICHAEL LIU
`SU, Palo Alto, CA; DAVID MROZ, Washington, DC.
`______________________
`
`
`
`Before PROST, Chief Judge, NEWMAN and CHEN,
`Circuit Judges.
`Opinion for the court filed by Chief Judge PROST.
`Dissenting opinion filed by Circuit Judge NEWMAN.
`PROST, Chief Judge.
`Appellants TCL Communication Technology Holdings,
`Limited, TCT Mobile Limited, and TCT Mobile (US) Inc.,
`(collectively, “TCL”) appeal the decision of the U.S. District
`Court for the Eastern District of Texas denying summary
`judgment that U.S. Patent No. 7,149,510 (“the ’510 pa-
`tent”) is ineligible for patenting under 35 U.S.C. § 101.
`TCL also appeals the denial of its motion for a new trial on
`damages and challenges the jury’s finding of willful in-
`fringement as not supported by substantial evidence. We
`reverse, hold that the ’510 patent claims ineligible subject
`matter under 35 U.S.C. § 101, and do not reach the issues
`of damages or willfulness.
`
`I
`In February 2015, Ericsson Inc. and Telefonaktiebo-
`
`laget LM Ericsson (collectively, “Ericsson”) sued TCL for
`infringement of five patents. See J.A. 1000–04. Four pa-
`tents were removed from the case following inter partes re-
`view proceedings, leaving only the ’510 patent. TCL moved
`for summary judgment that the asserted claims of the ’510
`patent (then claims 1–5 and 7–11) were ineligible for pa-
`tenting under 35 U.S.C. § 101. The district court denied
`the motion in November 2017, and the case proceeded to
`trial one month later. See Ericsson Inc. v. TCL Commc’n
`Tech. Holdings, Ltd., 2017 WL 5137401 at *1, *7-8 (E.D.
`Tex. Nov. 4, 2017) (“Summary Judgment Decision”).
`
`

`

`Case: 18-2003 Document: 61 Page: 3 Filed: 04/14/2020
`
`ERICSSON INC. v. TCL COMMUNICATION TECHNOLOGY
`
`3
`
`The ’510 patent generally claims a method and system
`
`for limiting and controlling access to resources in a tele-
`communications system. At trial, Ericsson argued that
`TCL infringed claims 1 and 5 of the ’510 patent by making
`and selling smartphones that include the Android operat-
`ing system. According to Ericsson, these Android-based
`products infringe the claims of the ’510 patent because they
`include “a security system that can grant apps access to a
`subset of services on the phone, with the end user control-
`ling the permissions granted to each app.” Appellees’ Br. 6
`(internal quotations omitted). The jury found claims 1 and
`5 infringed, awarded Ericsson damages, and further found
`that TCL’s infringement was willful. J.A. 38–39.
`
`Post-trial, TCL moved for renewed judgment as a mat-
`ter of law and a new trial on damages and willfulness,
`among other issues. The district court initially agreed, con-
`cluding that Ericsson’s damages theory was “unreliable”
`and ordering a new trial on damages. J.A. 3. Following
`Ericsson’s motion for reconsideration, however, the district
`court reinstated the jury verdict, and denied TCL’s motion
`for a new trial. Id. It also denied TCL’s motion for judg-
`ment as a matter of law on willfulness, finding the jury’s
`verdict supported by substantial evidence. Id. at 20.
`
`TCL timely appealed. We have jurisdiction under 28
`U.S.C. § 1295(a)(1).
`
`II
`Ericsson argues as a threshold matter that TCL has
`
`waived any right to appeal the issue of ineligibility under
`§ 101 by failing to raise it in a motion for judgment as a
`matter of law under Federal Rule of Civil Procedure 50.
`See Appellees’ Br. 21–25. We disagree for two independent
`
`

`

`Case: 18-2003 Document: 61 Page: 4 Filed: 04/14/2020
`
`4
`
`ERICSSON INC. v. TCL COMMUNICATION TECHNOLOGY
`
`reasons. We discuss each in turn below.
`A
`The district court’s § 101 opinion applied the two-step
`
`framework for patent eligibility first laid out in Mayo Col-
`laborative Services v. Prometheus Laboratories, Inc., 566
`U.S. 66 (2012), and further detailed in Alice Corp. v. CLS
`Bank Int’l, 573 U.S. 208 (2014). Patent eligibility under
`§ 101 is an issue of law, although the inquiry may some-
`times contain underlying issues of fact. See Berkheimer v.
`HP Inc., 881 F.3d 1360, 1365 (Fed. Cir. 2018); Intellectual
`Ventures I LLC v. Capital One Financial Corp., 850 F.3d
`1332, 1338 (Fed. Cir. 2017). In denying summary judg-
`ment here the district court concluded, at step one, that the
`claims of the ’510 patent “are not directed to an abstract
`idea” as a matter of law. Summary Judgment Decision at
`*7. That decision was based on the court’s analysis of the
`claim language and a comparison to our existing caselaw,
`and was not dependent on any factual issues that were or
`could have been raised at trial. See id. at 70–71.
`
`Although not in the § 101 context, we have addressed
`a similar procedural scenario in Lighting Ballast Control
`LLC v. Philips Electronics North America Corp., 790 F.3d
`1329, 1337 (Fed. Cir. 2015). In that case, an appellee ar-
`gued that the appellant had “waived any argument . . . by
`failing to raise the issue in either its pre- or post-verdict
`motions for judgment as a matter of law.” Id. at 1336–37.
`We noted that this may be true in cases where a motion for
`summary judgment is denied because “material issues of
`fact prevented judgment.” Id. at 1337. But that was not
`the case in Lighting Ballast, nor is it here. Rather, in
`Lighting Ballast, “[w]hen the district court denied [the mo-
`vant]’s motion for summary judgment, it did not conclude
`that issues of fact precluded judgment; it effectively en-
`tered judgment of validity to [the non-movant],” and that
`grant of judgment was appealable. Id.
`
`

`

`Case: 18-2003 Document: 61 Page: 5 Filed: 04/14/2020
`
`ERICSSON INC. v. TCL COMMUNICATION TECHNOLOGY
`
`5
`
`The same is true in this case. The district court did not
`
`conclude that there were issues of fact precluding judg-
`ment. Once the district court held that the ’510 patent was
`not directed to an abstract idea at step one, there was no
`set of facts that TCL could have adduced at trial to change
`that conclusion. See Summary Judgment Decision at *7.
`As a result, the district court effectively entered judgment
`of eligibility to Ericsson. “This is sufficient to preserve the
`issue for appeal.” Lighting Ballast, 790 F.3d at 1338.
`
`Ericsson argues that we are bound to apply Fifth Cir-
`cuit law in this instance, and that therefore Lighting Bal-
`last is inapplicable. Appellees’ Br. 21–22. Even under
`Fifth Circuit law, however, the district court effectively
`granted summary judgment of eligibility to Ericsson, which
`we may review.
`
`Relying on Fifth Circuit law, Ericsson cites Feld Motor
`Sports, Inc. v. Traxxas, L.P., 861 F.3d 591, 596 (5th Cir.
`2017), for the proposition that “following a jury trial on the
`merits, this court has jurisdiction to hear an appeal of the
`district court’s legal conclusions in denying summary judg-
`ment, but only if it is sufficiently preserved in a Rule 50
`motion.” But the district court here did not merely deny
`summary judgment. Rather, consistent with Fifth Circuit
`precedent, it effectively granted summary judgment in fa-
`vor of the non-moving party by deciding the issue and leav-
`ing nothing left for the jury to decide. See Hudson v. Forest
`Oil Corp., 372 F.3d 742, 744 (5th Cir. 2004) (“the district
`court’s decision to deny [a] motion for summary judgment
`was in effect a grant of summary judgment in favor of [non-
`movants]”). And when the district court’s action amounts
`to an “effective . . . grant of summary judgment,” the Fifth
`Circuit has treated the action akin to an express grant of
`summary judgment, and allowed an appeal accordingly.
`See Luig v. North Bay Enters., Inc., 817 F.3d 901, 904–05
`(5th Cir. 2016).
`
`

`

`Case: 18-2003 Document: 61 Page: 6 Filed: 04/14/2020
`
`6
`
`ERICSSON INC. v. TCL COMMUNICATION TECHNOLOGY
`
`The facts of this case justify that same treatment. As
`
`discussed above, the district court did not deny summary
`judgment of ineligibility on the basis of additional facts
`that needed to be, or even could be, presented at trial. The
`court affirmatively “conclude[d] that the claims are not di-
`rected to an abstract idea but rather to an improved tech-
`nological solution to mobile phone security software.”
`Summary Judgment Decision at *7. Had Ericsson chosen
`to file a cross-motion for summary judgment of eligibility,
`this exact same conclusion would have sufficed to grant
`that motion. Under Fifth Circuit law, this conclusion effec-
`tively serves as a grant of summary judgment for Ericsson,
`which is appealable. See Hudson, 372 F.3d at 744. Erics-
`son’s citation to Feld, which limits the appealability of de-
`nials of summary judgment, is therefore inapposite.
`
`TCL has preserved its right to appeal what was effec-
`tively a grant of summary judgment of patent validity to
`Ericsson.
`
`B
`Even if the district court had not effectively granted
`
`summary judgment to Ericsson, both Federal Circuit and
`Fifth Circuit law make clear that we have the discretion to
`hear issues that have been waived. And, to the extent the
`issue of patent eligibility in this case was waived (it was
`not, for the reasons discussed above), both circuits’ prece-
`dent supports our decision to exercise our discretion and
`hear the issue.
` We note first that this is not a typical waiver scenario
`in which we are asked to “consider an issue not passed
`upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976).
`Here, the issue of patent eligibility was fully briefed, ar-
`gued, and decided below, and then fully briefed and argued
`again before us. Summary Judgment Decision at *7; Ap-
`pellants’ Br. 20–31; Appellees’ Br. 21–38; Appellants’ Reply
`Br. 3–9; Oral Arg. at 5:22–9:57, 21:40–33:07, 34:12–35:55,
`
`

`

`Case: 18-2003 Document: 61 Page: 7 Filed: 04/14/2020
`
`ERICSSON INC. v. TCL COMMUNICATION TECHNOLOGY
`
`7
`
`No. 2018-2003, http://www.cafc.uscourts.gov/oral-argu-
`ment-recordings.
` While we always possess “the discretion to decide when
`to deviate from th[e] general rule of waiver,” Interactive
`Gift Express., Inc. v. Compuserve, Inc., 256 F.3d 1323, 1344
`(Fed. Cir. 2001), exercise of that discretion is especially ap-
`propriate in cases that do not present new issues on appeal.
`While there is “no general rule” for when we exercise our
`discretion to reach waived issues, Singleton, 428 U.S. at
`121, we have done so where, among other factors, “the issue
`has been fully briefed by the parties.” See Automated
`Merch. Sys., Inc. v. Lee, 1376, 1379–80 (Fed. Cir. 2015) (“A
`circuit court will disregard the rule of waiver in compelling
`circumstances, particularly if the issue has been fully
`briefed, if the issue is a matter of law or the record is com-
`plete, if there will be no prejudice to any party, and if no
`purpose is served by remand” (quoting Interactive Gift, 256
`F.3d at 1345 (internal quotations and alterations omit-
`ted))). That is the case here.
` Our general rule against reaching waived issues is
`based on sound policy. As we have noted,
`It ensures finality in litigation by limiting the ap-
`pealable issues to those a lower court had an oppor-
`tunity to, and did, address. The rule also conserves
`judicial resources because it prevents parties from
`undoing a lower court's efforts—sometimes span-
`ning years of litigation—based on an error that a
`lower court could have considered and corrected.
`In the same regard, the rule discourages parties
`from inviting an alleged error below only to raise it
`on appeal.
`HTC Corp. v. IPCom GmbH & Co., KG, 667 F.3d 1270, 1281
`(Fed. Cir. 2012) (collecting cases). But none of those poli-
`cies would be served by declining to reach the issue of pa-
`tent eligibility in this case. The district court “had an
`opportunity to, and did, address” the issue with finality.
`
`

`

`Case: 18-2003 Document: 61 Page: 8 Filed: 04/14/2020
`
`8
`
`ERICSSON INC. v. TCL COMMUNICATION TECHNOLOGY
`
`Id; c.f. In re Nuvasive, Inc., 842 F.3d 1376, 1380 (Fed. Cir.
`2016) (declining to reach waived issue where we do not
`have “the benefit of the [lower court]’s informed judg-
`ment”). Unlike prior cases in which we have declined to
`reach waived issues, TCL’s arguments did not shift over
`time or present “a moving target.” Finnigan Corp. v. Int’l
`Trade Comm’n, 180 F.3d 1354, 1363 (Fed. Cir. 1999). To
`the contrary, its “argument[s] at the trial and appellate
`level [were] consistent, thereby ensuring a clear presenta-
`tion of the issue to be resolved.” Id. And, as discussed in
`Section III below, the resolution of the patent eligibility
`question in this case is straightforward. See Interactive
`Gift, 256 F.3d at 1345 (noting that we consider arguably
`waived issues when “the proper resolution is beyond any
`doubt”).
`
`Accordingly, to the extent the issue of patent eligibility
`was not properly preserved below, we nonetheless exercise
`our discretion to address and resolve the issue. See Icon
`Health and Fitness, Inc. v. Strava, Inc., 849 F.3d 1034,
`1040 (Fed. Cir. 2017) (“Because the issue has been fully
`briefed, the record is complete, there will be no prejudice to
`any party, and no purpose is served by remand, we will
`consider [Appellant]’s arguments”).
`
`The Fifth Circuit’s statements regarding the proper
`use and purpose of waiver similarly support addressing the
`patent-eligibility legal question here. The en banc Fifth
`Circuit has explained that the doctrine of waiver “exists to
`prevent an appellate court from analyzing the facts of a
`particular issue without the benefit of a full record or lower
`court determination.” New Orleans Depot Servs., Inc. v.
`Dir., Office of Worker’s Comp. Programs, 718 F.3d 384, 388
`(5th. Cir. 2013) (en banc). That concern is not present here.
`The parties have fully briefed the issue of ineligibility un-
`der § 101 both before the district court and before us. We
`also have the benefit of the district court’s decision, which
`resolved the matter without resort to factual considera-
`tions, and no party has raised a genuine fact issue that
`
`

`

`Case: 18-2003 Document: 61 Page: 9 Filed: 04/14/2020
`
`ERICSSON INC. v. TCL COMMUNICATION TECHNOLOGY
`
`9
`
`requires resolution. See id. at 388 (“[A] well-settled discre-
`tionary exception to the waiver rule exists where a dis-
`puted issue concerns a pure question of law.”). This is not
`“a case in which a party has wholly ignored a major issue”
`until it reached the appellate level, but rather one in which
`the issue was “squarely addressed” below, and therefore it
`is appropriate for us to reach the issue. Id.
`
`Like the Fifth Circuit in New Orleans Depot, we find
`that because the issue was “presented to” and “fully liti-
`gated before” the district court judge, and because “every
`party was provided an adequate opportunity to brief and
`argue the issue” before us, we can and should “exercise our
`discretion to decide this legal issue.” Id.; see also Glass v.
`Paxton, 900 F.3d 233, 242–32 (5th Cir. 2018) (where “the
`only remaining issues are purely legal questions that were
`briefed below,” the Fifth Circuit has “been willing to resolve
`those issues on appeal.”)1
`
`Although the particular waiver at issue in New Orleans
`Depot and Glass did not involve motions for judgment as a
`matter of law under Rule 50, Fifth Circuit authority makes
`clear that the policy behind Rule 50 is consistent with this
`result. “Rule 50(b) is designed to prevent a litigant from
`ambushing both the district court and opposing counsel
`
`1 Feld, cited by Ericsson and discussed above, also
`supports our conclusion. While Ericsson cites Feld to argue
`that TCL’s claim is waived, Feld itself found that the ap-
`pellant “sufficiently preserved” the issue, noting that post-
`trial briefing requirements should be “construed liberally”
`and “the purpose of the rule is to provide notice to the dis-
`trict court and the plaintiff of the defendant’s objections.”
`861 F.3d at 596 (citing Navigant Consulting, Inc. v. Wil-
`kinson, 508 F.3d 277, 288 (5th Cir. 2007)). Here, Ericsson
`does not and cannot argue that that it was not on notice of
`TCL’s § 101 claim, having fully briefed and argued the is-
`sue both before the district court and now before us.
`
`

`

`Case: 18-2003 Document: 61 Page: 10 Filed: 04/14/2020
`
`10
`
`ERICSSON INC. v. TCL COMMUNICATION TECHNOLOGY
`
`after trial.” Puga v. RGX Solutions, Inc., 922 F.3d 285, 290
`(5th Cir. 2019). Similarly, Rule 50(a) is intended to allow
`a trial court “to re-examine the question of evidentiary in-
`sufficiency” and alert opposing counsel to any insufficiency.
`Id. at 291 (quoting Scottish Heritable Tr., PLC v. Peat Mar-
`wick Main & Co., 81 F.3d 606, 610 (5th Cir. 1996)). Barring
`review of the district court’s § 101 ruling would not promote
`either of these purposes.
`
`Because the issue of eligibility was fully briefed and de-
`cided below, neither Ericsson nor the district court can
`claim to be “ambush[ed]” by our decision to address the is-
`sue on appeal. Id. at 290. Further, because the district
`court’s denial of TCL’s summary judgment motion rested
`on its conclusion that the asserted claims are not directed
`to an abstract idea at step one, no concerns about eviden-
`tiary insufficiency are present. Therefore, there is no im-
`pediment to us addressing the issue of patent ineligibility.
`See Scottish Heritable, 81 F.3d at 610 (“Technical noncom-
`pliance with Rule 50(b) may be excused in situations in
`which the purposes of the rule are satisfied.”). To the con-
`trary, the Fifth Circuit has “repeatedly counseled against”
`the “slavish adherence” to Rule 50 when it would not pre-
`vent against ambush or evidentiary insufficiency. Id. at
`611.
` We therefore exercise our discretion—to the extent the
`issue was not properly preserved below—to review the dis-
`trict court’s eligibility determination, and turn now to the
`merits of TCL’s appeal.
`
`III
` We “review a district court’s summary judgment ruling
`under the law of the regional circuit.” Intellectual Ven-
`tures, 850 F.3d at 1337. Under Fifth Circuit law, we “re-
`view a district court’s ruling on a motion for summary
`judgment de novo and apply the same legal standards as
`the district court.” Bellard v. Gautreaux, 675 F.3d 454, 460
`(5th Cir. 2012). The issue of patent eligibility under § 101
`
`

`

`Case: 18-2003 Document: 61 Page: 11 Filed: 04/14/2020
`
`ERICSSON INC. v. TCL COMMUNICATION TECHNOLOGY
`
`11
`
`is a question of law that we review without deference. In-
`tellectual Ventures, 850 F.3d at 1338.
`
`The Patent Act provides that “[w]hoever invents or dis-
`covers any new and useful process, machine, manufacture,
`or composition of matter, or any new and useful improve-
`ment thereof, may obtain a patent therefor, subject to the
`conditions and requirements of this title.” 35 U.S.C. § 101.
`However, laws of nature, natural phenomena, and abstract
`ideas are not patentable. Alice, 573 U.S. at 216. To deter-
`mine whether this exception applies, we evaluate at step
`one “whether the claims at issue are directed to a patent-
`ineligible concept,” such as an abstract idea. Alice, 573
`U.S. at 218. We have alternately described this inquiry as
`“looking at the ‘focus’ of the claims.” Elec. Power Grp., LLC
`v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (quot-
`ing Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335–
`36 (Fed. Cir. 2016)). While the specification may be “help-
`ful in illuminating what a claim is directed to . . . the spec-
`ification must always yield to the claim language” when
`identifying the “true focus of a claim.” ChargePoint, Inc. v.
`SemaConnect, Inc., 920 F.3d 759, 766 (Fed. Cir. 2019)
`
`If the claims are directed to an abstract idea, we move
`to step two and “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.” Alice, 573
`U.S. at 217 (quoting Mayo, 566 U.S. at 77–78). This step
`represents “a search for an ‘inventive concept’—i.e., an ele-
`ment or combination of elements that is ‘sufficient to en-
`sure that the patent in practice amounts to significantly
`more than a patent upon the ineligible concept itself.’” Id.
`at 217–18 (quoting Mayo, 566 U.S. at 72–73) (internal quo-
`tations and alterations omitted).
`A
`The ’510 patent, titled “Security Access Manager in
`
`Middleware,” describes “a system and method
`for
`
`

`

`Case: 18-2003 Document: 61 Page: 12 Filed: 04/14/2020
`
`12
`
`ERICSSON INC. v. TCL COMMUNICATION TECHNOLOGY
`
`controlling access to a platform for a mobile terminal for a
`wireless telecommunications system.” ’510 patent col.1 ll.
`25–28. Ericsson describes the field of the invention as “se-
`curing mobile phones against improper access by apps.”
`Appellees’ Br. 3. Claim 1 recites:
`1. A system for controlling access to a platform, the
`system comprising:
`a platform having a software services component
`and an interface component, the interface compo-
`nent having at least one interface for providing ac-
`cess to the software services component for
`enabling application domain software to be in-
`stalled, loaded, and run in the platform;
`an access controller for controlling access to the
`software services component by a requesting appli-
`cation domain software via the at least one inter-
`face, the access controller comprising:
`an interception module for receiving a request from
`the requesting application domain software to ac-
`cess the software services component;
`and a decision entity for determining if the request
`should be granted wherein the decision entity is a
`security access manager, the security access man-
`ager holding access and permission policies; and
`wherein the requesting application domain soft-
`ware is granted access to the software services com-
`ponent via the at least one interface if the request
`is granted.
`’510 patent claim 1. The only other claim on appeal, claim
`5, further recites:
`5. The system according to claim 1, wherein:
`the security access manager has a record of re-
`questing application domain software; and
`
`

`

`Case: 18-2003 Document: 61 Page: 13 Filed: 04/14/2020
`
`ERICSSON INC. v. TCL COMMUNICATION TECHNOLOGY
`
`13
`
`the security access manager determines if the re-
`quest should be granted based on an identification
`stored in the record.
`’510 patent claim 5.
`
`Based on the claim language, we conclude that claims
`1 and 5 are directed to the abstract idea of controlling ac-
`cess to, or limiting permission to, resources. Although writ-
`ten in technical jargon, a close analysis of the claims
`reveals that they require nothing more than this abstract
`idea. By the plain language of claim 1, the “security access
`manager” and the “decision entity” are the same thing. See
`’510 patent col. 8 ll. 50–53 (“. . . wherein the decision entity
`is a security access manager”). According to the specifica-
`tion, this combined decision entity / security access man-
`ager can further be the same as the “interception module.”
`Id. at col. 8 ll. 50–53 (“Instead of sending a permission re-
`quest . . . from the IM [interception module] 223 to the SAM
`[security access manager] 518, the IM 223 makes a decision
`locally”); see also J.A. 107–110 (district court adopting Er-
`icsson’s proposed construction, and noting that it includes
`“an embodiment where the interception module and the de-
`cision entity are one and the same.”) Because the security
`access manager / decision entity / interception module is
`the only claimed component of the “access controller,” all
`four components collapse into simply “an access controller
`for controlling access” by “receiving a request” and then
`“determining if the request should be granted.” That bare
`abstract idea, controlling access to resources by receiving a
`request and determining if the request for access should be
`granted, is at the core of claim 1.
` Neither of the remaining limitations alter our conclu-
`sion that claim 1 is directed to the abstract idea of control-
`ling access to resources. The first limitation recites “a
`platform having a software services component and an in-
`terface component,” for the ultimate goal of “enabling ap-
`plication domain software to be installed, loaded, and run
`
`

`

`Case: 18-2003 Document: 61 Page: 14 Filed: 04/14/2020
`
`14
`
`ERICSSON INC. v. TCL COMMUNICATION TECHNOLOGY
`
`in the platform.” ’510 patent claim 1. This recitation of
`functional computer components does not specify how the
`claim “control[s] access to a platform,” nor does it direct the
`claim to anything other than that abstract idea. It merely
`provides standard components that are put to use via the
`“access controller” limitation. Similarly, the “wherein” lim-
`itation simply recites the necessary outcome of the abstract
`idea, “grant[ing] access . . . if the request is granted.”
` We are mindful that the step one inquiry looks to the
`claim’s “character as a whole” rather than evaluating each
`claim limitation in a vacuum. See Enfish, LLC v. Microsoft
`Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). But where, as
`here, the bulk of the claim provides an abstract idea, and
`the remaining limitations provide only necessary anteced-
`ent and subsequent components, the claim’s character as a
`whole is directed to that abstract idea. See In re TLI
`Commc’ns LLC Patent Litig., 823 F.3d 607, 612 (Fed. Cir.
`2016) (claim directed to abstract idea where additional re-
`cited components “merely provide a generic environment in
`which to carry out the abstract idea.”) For the same reason,
`claim 5, which merely adds that the determination to grant
`access should be “based on an identification,” is directed to
`the same abstract idea.
`
`Ericsson makes two arguments as to why the asserted
`claims are not directed to an abstract idea at step one. Nei-
`ther is persuasive. First, it argues that the idea of control-
`ling access to resources is not an abstract idea because it
`does not “resemble[] one previously recognized by the Su-
`preme Court.” Appellees’ Br. 31–32. Ericsson’s suggestion
`that an abstract idea must be a “mathematical algorithm,”
`“method of organizing human activity,” or “fundamental
`economic practice,” id., is legally erroneous. The Supreme
`Court has explicitly rejected the use of such “categorical
`rules” to decide patent eligibility. Bilski v. Kappos, 561
`U.S. 593, 610 (2010). As a result, “[t]he Supreme Court and
`we have held that a wide variety of well-known and other
`activities constitute abstract ideas.” Intellectual Ventures
`
`

`

`Case: 18-2003 Document: 61 Page: 15 Filed: 04/14/2020
`
`ERICSSON INC. v. TCL COMMUNICATION TECHNOLOGY
`
`15
`
`I LLC v. Symantec Corp., 838 F.3d 1307, 1314 (Fed. Cir.
`2016) (collecting cases).
`
`Controlling access to resources is exactly the sort of
`process that “can be performed in the human mind, or by a
`human using a pen and paper,” which we have repeatedly
`found unpatentable. See CyberSource Corp. v. Retail Deci-
`sions, Inc., 654 F.3d 1366, 1372 (Fed. Cir. 2011). The idea
`long predates the ’510 patent and is pervasive in human
`activity, whether in libraries (loaning materials only to
`card-holding members), office buildings (allowing certain
`employees entrance to only certain floors), or banks (offer-
`ing or denying loans to applicants based on suitability and
`intended use). In each of these circumstances, as in the
`claims at issue, a request is made for access to a resource,
`that request is received and evaluated, and then the re-
`quest is either granted or not.
`
`Ericsson defends the ’510 patent by arguing that its
`claims, unlike these fundamental practices, are specific to
`mobile phones. But “limit[ing] the abstract idea to a par-
`ticular environment—a mobile telephone system—[] does
`not make the claims any less abstract for the step 1 analy-
`sis.” In re TLI, 823 F.3d at 607. To the contrary, we have
`repeatedly found the concept of controlling access to re-
`sources via software to be an abstract idea. See Smart Sys.
`Innovations, LLC v. Chicago Transit Authority, 873 F.3d
`1364, 1371 (Fed. Cir. 2017) (claim involving “denying ac-
`cess to a transit system if the bankcard is invalid” was di-
`rected to an abstract idea); Prism Techs. LLC v. T-Mobile
`USA, Inc., 696 F. App’x 1014, 1017 (Fed. Cir. 2017) (ab-
`stract idea of “providing restricted access to resources”);
`Smartflash LLC v. Apple Inc., 680 F. App’x 977 (Fed. Cir.
`2017) (abstract idea of “conditioning and controlling access
`to data”). The claims at issue here are no different.
`
`Second, Ericsson contends that its claims are not di-
`rected to an abstract idea because they “solve the specific
`computer problem . . . of controlling app access in resource-
`
`

`

`Case: 18-2003 Document: 61 Page: 16 Filed: 04/14/2020
`
`16
`
`ERICSSON INC. v. TCL COMMUNICATION TECHNOLOGY
`
`constrained mobile phones.” Appellees’ Br. 29. We disa-
`gree. As an initial matter, the district court was incorrect
`to conclude that “[t]he claims of the ’510 patent are limited
`to mobile platform technology,” and Ericsson is wrong to
`repeat that point. Summary Judgment Decision at *7.2
`The asserted claims merely require “[a] system for control-
`ling access to a platform,” whether mobile, desktop, or oth-
`erwise. They do not mention, and are not limited to, mobile
`phones or a “resource-constrained” environment. For the
`same reason, Ericsson’s reference to “a specific, layered
`software architecture,” Appellees’ Br. 29–30, which does
`not appear in the claims, is unavailing.
` Moreover, the claims here do not “ha[ve] the specificity
`required to transform a claim from one claiming only a re-
`sult to one claiming a way of achieving it.” SAP Am., Inc.
`v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018). Er-
`icsson does not deny that its claims are drafted function-
`ally, but argues that the process of requesting and
`controlling access as recited in the claim is a specific tech-
`nique for improving computer performance. Appellees’ Br.
`29–30. As discussed above, we disagree. The claims are
`silent as to how access is controlled. They merely make
`generic functional recitations that requests are made and
`then granted. Merely claiming “those functions in general
`terms, without limiting them to technical means for
`
`
`2 The district court was also incorrect to state that
`“[t]he PTAB’s highly technical characterization of the
`claims supports the conclusion that the claims are not di-
`rected to an abstract idea.” Summary Judgment Decision
`at *7. Claims do not become eligible simply because they
`are written or characterized in a “highly technical” man-
`ner. That would violate the Supreme Court’s caution that
`patent eligibility must not “depend simply on the drafts-
`man’s art.” Alice, 573 U.S. at 224 (quoting Mayo, 566 U.S.
`at 72).
`
`

`

`Case: 18-2003 Document: 61 Page: 17 Filed: 04/14/2020
`
`ERICSSON INC. v. TCL COMMUNICATION TECHNOLOGY
`
`17
`
`performing the functions that are arguably an advance,”
`does not make a claim eligible at step one. Elec. Power
`Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1351 (Fed. Cir.
`2016).
`
`B
` Having determined that the asserted claims of the ’510
`patent are directed to the abstract idea of controlling access
`to resources, we next ask whether the asserted claims con-
`tain an