Case 2:21-cv-00283-TS-DAO Document 416 Filed 03/28/24 PageID.21777 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF UTAH
`
`
`EAGLEVIEW TECHNOLOGIES, INC.
`et al.,
`
`
`Plaintiffs,
`
`
`v.
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`NEARMAP US, INC.,
`
`
`Defendant.
`
`
`
`
`MEMORANDUM DECISION AND
`ORDER DENYING DEFENDANT’S
`MOTION TO DISMISS
`
`
`
`
`Case No. 2:21-CV-283-TS-DAO
`
`District Judge Ted Stewart
`
`This matter is before the Court on Defendant Nearmap U.S., Inc.’s Motion to Dismiss
`
`Based on Unpatentability.1 For the reasons described below, the Court will deny the motion.
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`I. BACKGROUND2
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`Plaintiff EagleView Technologies, Inc. (“EagleView”) was the earliest provider of
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`remote aerial roof measurement services. Before EagleView’s inventions, repairing or replacing
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`a roof required an onsite visit to determine the style of roof, take measurements, and inspect the
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`area for access and cleanup before preparing a written estimate. EagleView’s patents describe
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`methods for estimating roofs without manual measurement and other related technologies. A
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`wide range of customers in construction, insurance, solar energy, and other industries use
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`EagleView’s technologies to estimate roofing costs. Defendant Nearmap US, Inc. (“Nearmap”)
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`
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`1 Docket No. 284.
`2 The relevant facts in the amended complaint are taken as true for purposes of this
`motion.
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`1
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`provides aerial imagery and geospatial tools, directly competing with EagleView in the
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`construction, insurance, and solar markets.
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`EagleView’s amended complaint alleges that Nearmap infringes on certain patents owned
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`by EagleView. Nearmap now moves to invalidate U.S. Patent No. 10,671,648 (“the ’648
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`Patent”) as an unpatentable “abstract idea” and thereby dismiss Count 13 of Plaintiffs’ First
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`Amended Complaint under Fed. R. Civ. P. 12(b)(6).3
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`Claim 1 of the ’648 Patent represents the patent as follows:
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`A method, comprising:
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`storing a plurality of data items in a data aggregation system, each of the
`plurality of data items being associated with one or more geographic location
`identifiers of a particular geographic point on earth, wherein at least a
`portion of the plurality of data items stored in the data aggregation system
`are further associated with one or more time identifiers including one or
`more time or time periods, indicative of a time history of an associated data
`item regarding the associated geographic point on earth;
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`receiving, by at least one processor, a query regarding a geographic
`location and including time information;
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`retrieving, from the data aggregation system, data items having associated
`geographic location identifiers matching the received geographic location
`and having associated time identifiers matching the received time
`information; and
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`outputting the retrieved data items.4
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`II. STANDARD OF REVIEW
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`As an initial matter, EagleView argues that Nearmap’s Motion is, in essence, a motion to
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`reconsider and should be denied as such. On March 14, 2023, the Court issued an order in which
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`
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`3 Docket No. 284.
`4 Docket No. 274-34, at 19.
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`2
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`it granted in part EagleView’s motion for leave to file an amended complaint.5 In that order, the
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`Court rejected Nearmap’s argument that amendment of the complaint, including the addition of
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`Count 13, would be futile. This decision required the Court to consider whether that amendment
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`would survive a motion to dismiss.6 However, in considering a motion to amend, the Court is
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`directed that “leave to amend should be freely given” and proposed amendments must be clearly
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`futile to be excluded under a futility basis.7 A motion to dismiss is not viewed under such a
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`liberal standard and, accordingly, the Court does not consider Nearmap’s Motion as a request to
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`reconsider.
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`To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the plaintiff must provide
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`“enough facts to state a claim to relief that is plausible on its face,”8 which requires “more than
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`an unadorned, the-defendant-unlawfully-harmed-me accusation.”9 “A pleading that offers ‘labels
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`and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor
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`
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`5 Docket No. 267.
`6 See Massey v. United States Dep’t of the Interior, No. 2:16-CV-43-TC, 2016 WL
`3661234, at *2 (D. Utah July 5, 2016) (unpublished) (“‘A proposed amendment is futile if the
`complaint, as amended, would be subject to dismissal for any reason, including that the
`amendment would not survive’ . . . a motion to dismiss.”) (quoting Watson ex rel. Watson v.
`Beckel, 242 F.3d 1237, 1239–40 (10th Cir. 2001)).
`7 See Fed. R. Civ. P. 15(a)(2); see also Adam v. Kan. Wesleyan Univ., No. 95-1473-JTM,
`1996 WL 148574, at *1 (D. Kan. Mar. 5, 1996) (unpublished) (“[T]he court may deny a motion
`to amend when the desired change ‘clearly is frivolous or advances a claim that is legally
`insufficient on its face, but if a proposed amendment is not clearly futile, then denial of leave to
`amend is improper.’”) (quoting 6 Wright, Miller & Kane, Fed. Prac. & Pro.: Civ. 2d, § 1487 at
`637 (2d ed. 1990)); Gentry v. Chubb, No. CV 21-13744 (MAS), 2022 WL 5242298, at *5
`(D.N.J. Oct. 6, 2022) (unpublished) (“Importantly, however, futility arguments differ from
`12(b)(6) dismissal arguments in that when considering futility, courts place a heavy burden on
`opponents who wish to declare a proposed amendment futile.”) (internal quotation marks and
`citation omitted).
`8 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
`9 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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`3
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`does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
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`enhancement.’”10 “Determining whether a complaint states a plausible claim for relief [is] a
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`context-specific task that requires the reviewing court to draw on its judicial experience and
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`common sense.”11 In making this determination, the court accepts all well-pleaded factual
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`allegations and views the complaint in the light most favorable to the non-moving party.12
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`In considering a motion to dismiss, a district court considers the complaint, any attached
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`exhibits,13 the “documents incorporated into the complaint by reference, and matters of which a
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`court may take judicial notice.”14 The court may also consider other “documents referred to in
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`the complaint if the documents are central to the plaintiff’s claim and the parties do not dispute
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`the documents’ authenticity.”15
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`The Federal Circuit has emphasized that subject matter eligibility under § 101 is a
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`question of law based on underlying facts that may be decided on a Rule 12(b)(6) motion where
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`there are no facts which, taken in the light most favorable to the plaintiff, prevent resolving the
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`question as a matter of law.16 A patent is presumed to be valid, and each claim of a patent is
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`presumed to be valid independently of the validity of other claims.17 “The burden of establishing
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`10 Id. (quoting Twombly, 550 U.S. at 555, 557) (alteration in original).
`11 Id. at 679 (internal citations and quotation marks omitted).
`12 GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.
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`1997).
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`13 Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d
`1194, 1201 (10th Cir. 2011).
`14 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
`15 Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002).
`16 Aatrix Software, Inc. v. Green Shades Software, Inc., 882 F.3d 1121, 1125 (Fed. Cir.
`2018).
`17 35 U.S.C. § 282(a).
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`invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.”18
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`Nearmap, as the party asserting invalidity, must overcome the presumption of validity by clear
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`and convincing evidence.19
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`III. DISCUSSION
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`Under § 101 of the Patent Act, patent-eligible subject matter includes “any new and
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`useful process, machine, manufacture, or composition of matter, or any new and useful
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`improvement thereof.”20 The Supreme Court has interpreted this statement as containing implicit
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`exceptions: “‘Laws of nature, natural phenomena, and abstract ideas are not patentable.’”21 The
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`primary concern of these exemptions is preemption: claims that are “not directed to a specific
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`invention and instead improperly monopolize ‘the basic tools of scientific and technological
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`work’” are ineligible for patent protection.22
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`In Alice, the Supreme Court articulated a two-step test for identifying non-patentable
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`subject matter.23 At step one, the court asks whether the patent claims are “directed to” an
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`ineligible concept, such as an abstract idea, a law of nature, or a natural phenomenon.24 If not,
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`the inquiry ends. If so, the court moves to step two and asks whether the claims nevertheless
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`
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`18 Id.
`19 See Beckson Marine, Inc. v. NFM, Inc., 292 F.3d 718, 725 (Fed. Cir. 2002).
`20 35 U.S.C. § 101.
`21 Alice Corp. Pty. Ltd. v. SLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Ass’n for
`Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)).
`22 McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314 (Fed. Cir. 2016)
`(quoting Alice, 573 U.S. at 216).
`23 Alice, 573 U.S. 217–18.
`24 Id. at 217.
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`contain an “‘inventive concept’” that is “‘sufficient to ensure that the patent in practice amounts
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`to significantly more than a patent upon the ineligible concept itself.’”25
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`Regarding the first step, determining what a patent is “directed to” is not an exact
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`science.26 A court must assess a claim’s “character as a whole” “in light of the specification”27 to
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`determine its “focus”28 or “‘basic thrust,’”29 but without oversimplifying claims or describing
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`them “[at] a high level of abstraction and untethered from the language of the claims.”30
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`Nearmap argues that the ‘648 Patent describes methods for storing, receiving, retrieving,
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`and outputting certain types of data, without the use of any assertively inventive technology and
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`is, accordingly, directed to nothing more than an abstract idea.31 Eagleview, in opposition, argues
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`25 Id. at 217–18 (quoting Mayo Collaborative Servs. v. Prometheus Lab’ys, Inc., 566 U.S.
`66, at 72–73) (2012)).
`26 See generally Smart Sys. Innovations, LLC v. Chi. Transit Auth., 873 F.3d 1364, 1376–
`79 (Fed. Cir. 2017) (Linn, J., dissenting-in-part and concurring-in-part) (discussing the
`difficulties in determining what a patent is “directed to” under Supreme Court and Federal
`Circuit precedent).
`27 Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (internal
`quotation marks and citation omitted).
`28 Id. at 1336.
`29 Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1150 (Fed. Cir. 2016)
`(quoting BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1348 (Fed.
`Cir. 2016)).
`30 Enfish, 822 F.3d at 1337; see also TecSec, Inc. v. Adobe Inc., 978 F.3d 1278, 1294–96
`(Fed. Cir. 2020) (rejecting characterization of claim as directed to abstract idea where arriving at
`that characterization required disregarding important elements of the claims); McRO, 837 F.3d at
`1313 (“[C]ourts must be careful to avoid oversimplifying the claims by looking at them generally
`and failing to account for the specific requirements of the claims.”) (internal quotation marks and
`citation omitted); Ultramercial, Inc. v. Hulu, LLC, 722 F.3d 1335, 1344 (Fed. Cir. 2013) (“[A]ny
`claim can be stripped down, simplified, generalized, or paraphrased to remove all of its concrete
`limitations, until at its core, something that could be characterized as an abstract idea is revealed.
`A court cannot go hunting for abstractions by ignoring the concrete, palpable, tangible
`limitations of the invention the patentee actually claims.”), vacated sub nom. WildTangent, Inc.
`v. Ultramercial, LLC, 573 U.S. 942 (2014).
`31 Docket No. 284, at 1.
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`that when “[p]roperly analyzed, the claims of the ’648 patent require components that ‘operate in
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`an unconventional manner to achieve an improvement in computer functionality’ and therefore .
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`. . are not directed to an abstract idea.”32
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`It is well established that, without more, claims describing methods of data storage,
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`recognition, compilation, analysis, monitoring, and retrieval, are directed to abstract ideas under
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`Alice.33 The Court must then determine if the claims of the ’648 Patent go beyond abstract data
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`processes and, instead, “focus[] on improved ways in which systems store and access data.”34
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`Several decisions from the Federal Circuit are helpful in illustrating this distinction.
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`In Enfish, LLC v. Microsoft Corporation, the Federal Circuit analyzed patents describing
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`a “data storage and retrieval system for a computer memory,”35 which utilized “a flexible, self-
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`referential table.”36 The district court had invalidated the patent after concluding that the claims
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`at issue “were directed to the abstract idea of storing, organizing, and retrieving memory in a
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`logical table.”37 The circuit court reversed, finding that the claims were “not simply directed to
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`any form of storing tabular data,” but instead were “directed to an improvement of an existing
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`32 Docket No. 297, at 1 (quoting Amdocs (Isr.) Ltd. v. Openet Telecom, Inc., 841 F.3d
`1288, 1300–1301 (Fed. Cir. 2016)).
`33 See e.g., Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat. Ass’n, 776
`F.3d 1343, 1353 (Fed. Cir. 2014) (upholding district court’s dismissal of claims “drawn to the
`abstract idea of (1) collecting data, (2) recognizing certain data within the collected data set, and
`(3) storing that recognized data in a memory”); Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d
`1350, 1351 (Fed. Cir. 2016) (finding the claims at issue clearly focused on an abstract where
`“[t]he focus of the asserted claims . . . [was] on collecting information, analyzing it, and
`displaying certain results of the collection and analysis”).
`34 BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1288 (Fed. Cir. 2018).
`35 822 F.3d at 1336.
`36 Id. at 1337.
`37 Id. (internal quotation marks omitted).
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`technology,” which “improv[ed] upon prior art information search and retrieval systems.”38 The
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`system described by the claims achieved “benefits over conventional databases, such as
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`increased flexibility, faster search times, and smaller memory requirements.”39
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`
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`In BSG Tech LLC v. Buyseasons, Inc., the Federal Circuit analyzed claims that described
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`a method of indexing items into “a database structure that is capable of storing information about
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`items as combinations of classifications, parameters, and values.”40 The patent holder explained
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`that these claims “allow[] users to quickly and efficiently access hundreds of thousands or even
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`millions of records, and still find only those few records that are relevant.”41 Distinguishing the
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`claims from those in in Enfish, the circuit court concluded the claims did “not recite any
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`improvement to the way in which . . . databases store or organize information analogous to the
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`self-referential table in Enfish,” but instead “perform[] an abstract idea in conjunction with a
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`well-known database structure.”42
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`
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`In In re TLI Communications LLC Patent. Litigation,43 the Federal Circuit considered
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`claims that described “manually or automatically assigning classification data, such as a date or
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`timestamp, to digital images and sending those images to a server. The server then extracts the
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`classification data and stores the digital images, taking into consideration the classification
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`information.”44 In asking “whether the claims [were] directed to an improvement to computer
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`
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`38 Id.
`39 Id.
`40 899 F.3d at 1289.
`41 Id. at 1288 (citation omitted).
`42 Id.
`43 823 F.3d 607 (Fed. Cir. 2016).
`44 Id. at 610 (internal quotation marks omitted).
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`functionality versus being directed to an abstract idea,” as directed in Enfish, the court found it
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`significant that the claims were “not directed to a solution to a ‘technological problem.’”45
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`[T]he problem facing the inventor was not how to combine a camera with a cellular
`telephone, how to transmit images via a cellular network, or even how to append
`classification information to that data. Nor was the problem related to the structure
`of the server that stores the organized digital images. Rather, the inventor sought to
`provid[e] for recording, administration and archiving of digital images simply, fast
`and in such way that the information therefore may be easily tracked.46
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`The court then concluded that, “like . . . claims directed to ‘collecting data,’ ‘recognizing certain
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`data within the collected data set,’ and ‘storing the recognized data in memory,’ attaching
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`classification data, such as dates and times, to images for the purpose of storing those images in
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`an organized manner is a well-established ‘basic concept’ sufficient to fall under Alice step 1.”47
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`EagleView argues that the claims of the ’648 Patent are analogous to the claims at issue
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`in Enfish in that it “criticizes conventional ways of storing property records and claims an
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`improved data structure and database that organizes information in a specific, unconventional
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`manner that provides a ‘time history’ data associated with a geographic point on earth.”48
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`Eagleview further argues that “[b]ecause the claims of the ’648 patent, like those in Enfish, are
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`directed towards an improvement to computer functionality itself, reciting a specific database
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`structure, they are not directed towards an abstract idea.”49 However, contrary to EagleView’s
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`assertions, the ’648 Patent fails to include any claims that describe a specific technology.
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`45 Id. at 612–13.
`46 Id. at 12 (internal quotation marks omitted).
`47 Id.
`48 Docket No. 297, at 9.
`49 Id. at 10.
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`EagleView describes the claims in ’648 Patent as follows:
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`[I]ndependent claims 1, 12, and 18 of the ’648 patent require that data be aggregated
`according to time periods such that data items include “time identifiers” that are
`“indicative of a time history.” Each independent claim then requires that such data
`be retrievable by a user query that incorporates both time information and a
`geographic location. Independent claims 9 and 12 separately require that data be
`retrieved pursuant to both the geographic location and an indication of a time
`history entered by the user. Unlike in the prior art systems described by the ’648
`patent, including prior art computer-based systems such as “Zillow” and “Google
`Maps” . . . , the information returned by the system of the ’648 patent will not be
`out of date, and all available information will be returned, regardless of changes in
`how locations are identified in various property-related records.50
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`While EagleView concludes that this amounts to a technological advancement, the
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`language of the claims itself does not support this conclusion. The claims describe “storing a
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`plurality of data items in a data aggregation system;” associating the data items with “one or
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`more time identifiers” and “the associated geographic point on earth;” and “receiving . . . a
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`query,” among other things. Storing, aggregating, associating, and producing data is simply “a
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`combination of . . . abstract-idea processes.”51 While these claims describe a process likely to
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`improve the ease and efficiency by which a specific type of data can be accessed, they do not
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`include any description by which the court could plausibly conclude that they do so by some
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`advancement in technology.52
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`50 Id. at 2 (internal quotation marks and citations omitted).
`51 Elec. Power Grp., LLC, 830 F.3d at 1351, 1354 (analyzing patents that “describe[d]
`and claim[ed] systems and methods for performing real-time performance monitoring of an
`electric power grid by collecting data from multiple data sources, analyzing the data, and
`displaying the results,” and concluding that the claims were “clearly focused on the combination
`of . . . abstract-idea processes”).
`52 See Smart Sys. Innovations, LLC., 873 F.3d at 1373 (rejecting argument at Alice step
`one that an abstract idea providing “speedier solutions” enables a claim to fall outside “the
`abstract ideas realm”); Secured Mail Sols. LLC v. Universal Wilde, Inc., 873 F.3d 905, 910 (Fed.
`Cir. 2017) (“The fact that an identifier can be used to make a process more efficient, however,
`does not necessarily render an abstract idea less abstract.”).
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`Further, similar to In Re TLI Communications, the problem the claims at issue seek to
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`address is not a technological problem. EagleView explains that, “[t]raditionally, property
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`attributes such as title information, geographic characteristics, insurance policies, and building
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`and utility information were stored in different locations, and data was tracked based on different
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`identifiers such as parcels, lots, townships, cities, zip codes, and school districts.”53 Such
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`information “is usually [publicly] available, but is stored by different entities in different
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`locations using different formats.”54 “This conventional approach presented several drawbacks,
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`including that identifiers could change such that they represent different points on the earth at
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`different times” and the ’648 Patent’ “solves these problems.”55
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`As alleged by EagleView, the data aggregated and produced by the claims is available by
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`requesting such data from various entities. Like the claims at issue in In Re TLI Communications,
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`the claims here seek to produce the relevant data at issue “simply, fast and in such way that the
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`information . . . may be easily tracked.”56 This is insufficient to demonstrate that the claims at
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`issue address a technological problem and, instead, supports that the claims at issue are directed
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`to an abstract at idea.
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`Based on the above analysis, the Court must move to the second step under Alice. The
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`second step “requires [the Court] to determine whether the claim elements, when viewed
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`individually and as an ordered combination, contain ‘an inventive concept sufficient to transform
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`the claimed abstract idea into a patent-eligible application.’”57 “A claim contains an inventive
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`
`53 Docket No. 297, at 2
`54 Id. at 7.
`55 Id. at 2.
`56 823 F.3d at 612.
`57 Smart Sys. Innovations, LLC., 873 F.3d at 1373–74 (quoting Alice, 572 U.S. at 221).
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`concept if it ‘includes additional features’ that are more than ‘well-understood, routine,
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`conventional activities.’”58 “If a claim’s only ‘inventive concept’ is the application of an abstract
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`idea using conventional and well-understood techniques, the claim has not been transformed into
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`a patent-eligible application of an abstract idea.”59
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`“Whether a claim limitation or combination of limitations is well-understood, routine,
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`and conventional is a factual question. Accordingly, in cases where the only issue at step two is
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`whether claim limitations are well-understood, routine, and conventional, a genuine dispute over
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`that issue will preclude” dismissal for ineligibility under 12(b)(6).60
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`EagleView argues that the claims of the ’648 Patent are inventive: “Specifically, the
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`system claimed by the ’648 Patent can provided a time history of a particular geographic point
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`on earth.”61 “[B]y associating information with one or more geocoded locations on earth,
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`information can be accurately obtained concerning a particular geographic area over any time
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`period.”62 “Moreover, information about a parcel, or even multiple parcels over time associated
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`with the same point, can be aggregated into a single system to be queried.”63
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`Considering the record currently before the Court and the presumption of validity, the
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`Court finds that Nearmap has not met its burden to show by clear and convincing evidence that
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`the claims of the ’648 Patent lack an inventive concept. Accordingly, the Court will deny
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`Nearmap’s Motion without prejudice.
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`
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`58 Id. at 1374 (quoting Alice, 572 U.S. at 221).
`59 BSG Tech LLC, 899 F.3d at 1290–91.
`60 Id. at 1290.
`61 Docket 297, at 10.
`62 Id. at 11.
`63 Id.
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`It is therefore
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`IV. CONCLUSION
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`
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`ORDERED that Nearmap’s Motion to Dismiss (Docket No. 284) is denied without
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`prejudice.
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`DATED this 28th day of March, 2024.
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`BY THE COURT:
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`
`
`Ted Stewart
`United States District Judge
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