directPacket Research, Inc. v. Polycom, LLC

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 DIRECTPACKET RESEARCH, INC., Case No. 3:19-cv-03918-JD 8 Plaintiff, ORDER RE JUDGMENT ON THE 9 v. PLEADINGS 10 POLYCOM INC, Defendant. — 11 — — 12 — 13 Plaintiff directPacket Research, Inc., sued defendant Polycom, Inc., for infringement of 14 three patents related to methods of multimedia communication across computer networks. See 15 Dkt. No. 1. Polycom filed petitions for inter partes review of all three patents. The Patent Trial 16 and Appeal Board (PTAB) found that all asserted claims in two of directPacket’s three patents 17 were unpatentable. Only U.S. Patent No. 7,773,588 (the ’588 patent) remains at issue in this case. 18 Polycom says that the ’588 patent is directed to patent-ineligible subject matter under 35 U.S.C. § 19 101 and related cases, and asks for a dismissal under Federal Rule of Civil Procedure 12(c). Dkt. 20 No. 257. The first, second, and third claims in the complaint, which concern the ’588 patent, are 21 dismissed with leave to amend. 22 BACKGROUND 23 As alleged in the complaint, the ’588 patent was issued on August 10, 2010 and is assigned 24 to directPacket. Dkt. No. 1 at 5. The patent is directed to “a system and method for facilitating 25 multimedia communication with multiple communication protocols.” Dkt. No. 1-1 at 2:1-5. As 26 the background of the patent states, “Multimedia communication systems . . . are typically 27 designed to be implemented in one of the various protocols. . . . A problem arises when a party 1 communicate with another party using a different protocol endpoint on another communication 2 system.” Id. at 1:48-58 . The patent is said to “allow[] communication devices that use different 3 communication protocols to participate in multimedia communications in the same system.” Id. at 4 2:25-27. 5 The ’588 claim comprises 23 claims in total, including four independent claims: Claims 1, 6 7, 11, and 18. Dkt. No. 1-1 at 7:25-10:60. directPacket asserts claims 1-4, 6-9, 11-14, 16-21, and 7 21. Dkt. No. 257 at 5. 8 Claims 1 and 7 recite: 9 1. A method for multimedia communication comprising: 10 receiving a multimedia data stream at a communication controller in a first protocol 11 from a communication device, wherein the first protocol comprises a signaling 12 protocol; 13 detecting a type of said first protocol; 14 converting said first protocol into an intermediate protocol 15 translating said intermediate protocol into a second protocol, wherein the second 16 protocol comprises a signaling protocol; and 17 transmitting said multimedia data stream in second protocol to a target 18 communication device; 19 wherein said first protocol comprises one of a text-based protocol and a binary 20 protocol and wherein second protocol comprises one of a binary protocol and a 21 text-based protocol. 22 7. A communication controller in a multimedia communication system, said 23 communication controller comprising: 24 A message interface to transceive multimedia data from a communication endpoint 25 in a first protocol, wherein the first protocol comprises a signaling protocol, and 26 wherein said first protocol is either a text-based protocol or a binary protocol; 27 A protocol signaler to determine a type of said first protocol; 1 and a plurality of interim protocol messages, wherein said plurality of interim 2 protocol messages correspond to ones of said plurality of first protocol 3 messages; 4 A protocol conversion utility to convert said first protocol into an interim protocol 5 using said first protocol conversion table; and 6 A network interface to transceive said multimedia data in said interim protocol to a 7 target communication endpoint. 8 Dkt. No. 1-1 at 7:25-8:37. 9 Claim 11 is identical to Claim 1, except that the conversion is performed “irrespective of a 10 second protocol in which the multimedia data stream is to be transmitted to a target 11 communication device.” Dkt. No. 1-1 at 8:57-9:6. 12 Claim 18 recites a “computer program product having a computer readable storage 13 medium with computer program logic” comprising code for performing each of the five steps laid 14 out in Claims 1 and 11 (receiving, detecting, converting, translating, and transmitting). Dkt. No. 15 1-1 at 9:54-10:13. 16 Polycom previously petitioned for inter partes review of the ’588 patent, challenging 17 Claims 1-23 as obvious and consequently unpatentable. The PTAB concluded that all of the 18 challenged claims were rendered obvious by the prior art. Polycom, Inc. v. directPacket Rsch., 19 Inc., No. IPR2019-01233, 2021 WL 96053 at *1 (P.T.A.B. Jan. 11, 2011). The decision relied on 20 a construction of “multimedia data stream” as a stream consisting of signaling and media 21 messages, but not necessarily both at the same time. directPacket appealed the PTAB’s ruling on 22 the claim construction issue. The Federal Circuit vacated the ruling and remanded, finding that a 23 “multimedia data stream” must include media, and not only signaling, messages. directPacket 24 Rsch., Inc. v. Polycom, Inc., No. 2021-1661, ___ F. App’x ___, 2022 WL 243918 (Fed. Cir. Jan. 25 26, 2022). On remand, the PTAB found that the ’588 patent was not rendered obvious under the 26 new construction. See Polycom, Inc. v. directPacket Rsch., Inc., No. IPR2019-01233 (P.T.A.B. — 27 — 1 Aug. 26, 2022).1 2 DISCUSSION 3 I. LEGAL STANDARDS 4 Rule 12(c) provides that “[a]fter the pleadings are closed -- but early enough not to delay 5 trial -- a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The Federal 6 Rules treat Rule 12(c) and Rule 12(b)(6) motions as functionally identical, and the standards for a 7 Rule 12(b)(6) motion apply to a Rule 12(c) motion. See Gregg v. Hawaii, 870 F.3d 883, 887 (9th 8 Cir. 2017). Where there is no dispute of material fact, and the moving party is entitled to 9 judgment as a matter of law, a Rule 12(c) motion may be granted. See Fleming v. Pickard, 581 10 F.3d 922, 925 (9th Cir. 2009). 11 “Challenges to patentability under Section 101 may be brought solely on the pleadings, 12 including on a Rule 12(c) motion for judgment on the pleadings.” Open Text S.A. v. Box, Inc., 78 13 F. Supp. 3d 1043, 1045 (N.D. Cal. 2015). The question of eligibility may be determined on a Rule 14 12(c) motion “only when there are no factual allegations that, taken as true, prevent resolving the 15 eligibility question as a matter of law.” Aatrix Software, Inc. v. Green Shades Software, Inc., 882 16 F.3d 1121, 1125 (Fed. Cir. 2018) (citing FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089 , 17 1097 (Fed. Cir. 2016)). The inquiry in a motion to dismiss is confined to the contents of the 18 complaint and the plain words of the patent that is incorporated by reference. See Broadcom 19 Corp. v. Netflix Inc., ___ F. Supp. 3d ___, 2023 WL 3958361 , at *4 (N.D. Cal. 2023); Linquet 20 Techs., Inc. v. Tile, Inc., 559 F. Supp. 3d 1101 , 1106 (N.D. Cal. 2021). A patentee cannot avoid 21 dismissal for ineligible claims solely based on conclusory statements or unfounded allegations 22 later proved to be unsupported. Cellspin Soft, Inc. v. Fitbit, Inc., 927 F.3d 1306, 1317 (Fed. Cir. 23 2019). 24 directPacket did not raise any factual disputes that might make a judgment on the 25 pleadings inappropriate. In addition, neither side suggests that resolution of the Section 101 26 question should be deferred until after claim construction. As a general rule, claims need not be — 27 — 1 formally construed before a Section 101 challenge is decided. See Genetic Techs. Ltd. v. Merial 2 L.L.C., 818 F.3d 1369, 1373-74 (Fed. Cir. 2016) (citations omitted); Aatrix Software, 882 F.3d at 3 1125. Polycom states that claim construction is not material to Section 101 eligibility here, and 4 directPacket does not disagree or otherwise identify construction disputes that it contends must be 5 resolved first. Consequently, the Section 101 inquiry may properly be made at this stage of the 6 case. 7 Patentable subject matter includes “any new and useful process, machine, manufacture, or 8 composition of matter, or any new or useful improvement thereof.” 35 U.S.C. § 101 . “[L]aws of 9 nature, physical phenomena, and abstract ideas” are “specific exceptions to Section 101’s broad 10 patent-eligibility principles.” Bilski v. Kappos, 561 U.S. 593, 601 (2010) (internal quotations and 11 citation omitted). These exclusions guard against overbroad patent protection which “would risk 12 disproportionately tying up the use of the underlying ideas.” Alice Corp. Pty. Ltd. v. CLS Bank 13 International, 573 U.S. 208 , 217 (2014). 14 The Supreme Court has established a two-part test for patent eligibility under Section 101. 15 First, the Court determines “whether the claims at issue are directed to a patent-ineligible concept” 16 such as a law of nature, natural phenomenon, or abstract idea. Alice at 218; see also Int’l Bus. 17 Machines Corp. v. Zillow Grp., Inc., 50 F.4th 1371, 1377 (Fed. Cir. 2022). In conducting the first 18 step of the Alice test, the Court may “compare claims at issue to those claims already found to be 19 directed to an abstract idea in the previous cases.” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 , 20 1334 (Fed. Cir. 2016). The Court may also take into account undisputed facts about well-known 21 practices that have stood the test of time. Yu v. Apple Inc., 1 F.4th 1040 , 1045-46 (Fed. Cir. 2021); 22 Juniper Networks Inc. v. Swarm Tech. LLC, 3:20-cv-03137, 2022 WL 3031211 , at *4 (N.D. Cal. 23 Aug. 1, 2022). Oversimplification of the claims must be avoided because “[a]t some level, ‘all 24 inventions . . . embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or 25 abstract ideas.’” Alice, 573 U.S. at 217. 26 If a patent is directed to a patent-ineligible concept, the second step in Alice looks for an 27 “‘inventive concept’ -- i.e., an element or combination of elements that is sufficient to ensure that 1 itself.” Alice, 573 U.S. at 217-17 (alteration in original) (internal quotations and citation omitted); 2 see also Coop. Ent., Inc. v. Kollective Tech., Inc., 50 F.4th 127, 130 (Fed. Cir. 2022). This step 3 asks, “[w]hat else is there in the claims before us?” Mayo Collaborative Servs. v. Prometheus 4 Lab’ys, Inc., 566 U.S. 66, 78 (2012). The answer must include something “significantly more” 5 than the abstract idea itself. BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 6 2018). The “mere recitation of concrete, tangible components is insufficient to confer patent 7 eligibility to an otherwise abstract idea. Rather, the components must involve “more than the 8 performance of ‘“well-understood, routine, conventional activit[ies]” previously known to the 9 industry.’” In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 613 (Fed. Cir. 2016) (alteration 10 in original) (quoting Alice, 573 U.S. at 225). “If a claim’s only ‘inventive concept’ is the 11 application of an abstract idea using conventional and well-understood techniques, the claim has 12 not been transformed into a patent-eligible application of an abstract idea.” BSG Tech LLC, 899 13 F.3d at 1290-91. 14 directPacket suggests that the ’588 patent solves a technical problem in data transmission. 15 Consequently, the Court will also determine “whether the claims are directed to an improvement 16 to computer functionality versus being directed to an abstract idea.” Enfish, 822 F.3d at 1335 ; see 17 also BSG Tech LLC, 899 F.3d at 1287 . 18 II. TIMELINESS 19 To start the discussion, directPacket raises the procedural objection that Polycom’s 12(c) 20 motion is untimely. Dkt. No. 269 at 5-6. Rule 12(c) motions must be filed “[a]fter the pleadings 21 are closed -- but early enough not to delay trial.” Fed. R. Civ. P. 12(c). 22 The objection is not well taken. It may raise an eyebrow that Polycom filed a Rule 12(c) 23 motion in 2023 for a case initially filed in 2019, but much has happened in multiple forums to 24 make this timing plausible. The parties have spent the past five years actively litigating this case 25 before the PTAB and the Federal Circuit, in addition to here. Polycom filed IPR petitions in June 26 2019, not long after the case started. See Dkt. No. 186. The Court granted a stay when the PTAB 27 instituted IPR, which remained in place from January 2020 to January 2023. See Dkt. Nos. 233, 1 against it were resolved by the Federal Circuit. See Dkt. Nos. 241, 248. Polycom filed the present 2 motion just one month later in February 2023. Dkt. No. 257. 3 directPacket has not identified any meaningful prejudice from the filing of a Rule 12(c) 4 motion at this time. The motion will not delay trial because a trial date has not been set. 5 directPacket says that the “parties have expended thousands of attorney hours” on the litigation, 6 including “the preparation of multiple expert reports at significant cost,” Dkt. No. 269 at 5, but 7 most of that work was not driven by the ’588 patent alone, and expenses were incurred by both 8 parties. It is certainly true that Section 101 challenges should be raised sooner rather than later, as 9 case circumstances permits, see Broadcom Corp., ___ F. Supp. 3d ___, 2023 WL 3958361 , at *6, 10 but the record before the Court does not indicate that Polycom was unduly slow in filing the Rule 11 12(c) motion, or acted in manner calculated or otherwise likely to unfairly prejudice directPacket. 12 In addition, declining to determine the Section 101 challenge at this time could result in an 13 ineligible patent going all the way to a jury verdict that would need to be vacated in post-trial 14 proceedings. That would be a disastrous waste of the jury’s, the Court’s, and the parties’ time and 15 resources. 16 III. CLAIM 1 IS A REPRESENTATIVE CLAIM 17 The parties disagree whether Claim 1 is a representative claim for the purposes of 18 Polycom’s motion. Dkt. No. 257 at 7; Dkt. No. 269 at 9-10. The Court concludes that it is for 19 purposes of the patent eligibility inquiry. 20 To determine eligibility, the Court may designate a claim or a subset of claims as 21 representative. This is particularly appropriate when “the patentee does not present any 22 meaningful argument for the distinctive significance of any claim limitations not found in the 23 representative claim,” Berkheimer v. HP Inc, 881 F.3d 1360, 1365 (Fed. Cir. 2018), or when the 24 other claims do not contain an additional “inventive concept” that transforms the corresponding 25 claim into a patent-eligible application of an otherwise ineligible claim, Content Extraction & 26 Transmission LLC v. Wells Fargo Bank, Nat. Ass’n, 776 F.3d 1343, 1349 (Fed. Cir. 2014). 27 directPacket did not provide a good reason for not treating Claim 1 as representative. 1 of a second protocol.” Dkt. No. 1-1 at 8:63-65. This alteration that lacks the “distinctive 2 significance” that would preclude grouping the two claims together analytically. Berkheimer, 881 3 F.3d at 1365. 4 directPacket says that Claims 2 and 12 feature an additional communication step prior to 5 translation, enabling the transmission of the multimedia data stream over the Internet as opposed 6 to transmission between generic communication controllers. Dkt. No. 269 at 8. But Internet 7 communication is already expressly contemplated in the background section of the patent, which 8 begins with the statement, “The Internet may be used for many forms of communication.” Dkt 19 1 at 1:13-14. In fact, the entirety of the ’588 patent appears directed at the interoperability issues 10 emergent on the Internet. Consequently, Claims 2 and 12 do not introduce an “inventive concept” 11 that significantly transforms the scope of issues already addressed by Claims 1 and 11. Content 12 Extraction, 776 F.3d at 1349 . 13 directPacket says that Claims 3, 4, 13, and 14 provide concrete instructions and “specific 14 methods” for the “converting” and “translating” steps of Claims 1 and 11. Dkt. No. 269 at 8. 15 Claims 3, 4, 13, and 14’s concrete instructions amount to the use of a lookup table mapping 16 elements of original messages to their corresponding translations. Dkt. No. 1-1 at 7:49-9:42. The 17 protocol tables recited by Claims 3, 4, 13, and 14 are readily analogized to a human consulting a 18 translation dictionary. Consequently, analyzing whether Claim 1 is directed to translation will 19 encompass the corresponding analysis about whether Claims 3, 4, 13, and 14 are directed at a 20 particular step in the translation process. Claims 3, 4, 13, and 14 do not contribute an additional 21 “inventive concept” and do not need to be analyzed separately under Alice. 22 directPacket says that Claims 7-10 recite a “specific device” to facilitate the methods 23 taught in Claims 1 and 11. Dkt. No. 269 at 9. But these claims merely describe “message 24 interfaces” and “network interfaces” that transceive messages, “protocol signalers” to detect 25 protocols, “protocol conversion tables” that map one protocol to another, and “protocol conversion 26 utilities” that use the tables to convert protocols. Dkt. No. 1-1 at 8:19-56. Such cursory and 27 functional descriptions do not amount to a “specific device.” Rather, they recast the steps in 1 Alice, 573 U.S. at 226 (characterizing a “data processing system” with a “communications 2 controller” as generic rather than “specific hardware”). “Nothing in the claims or their 3 constructions . . . requires anything than conventional computer and network components.” Two4 Way Media v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1337 (Fed. Cir. 2017). Without 5 more, these claims lack an “inventive concept” distinct from Claim 1. Content Extraction, 776 6 F.3d at 1349. 7 directPacket’s closing point on this score is that Claims 18-23 recite computer 8 programming with specific coding instructions. Dkt. No. 269 at 9. To call Claims 18-23 9 “computer programming” drastically overstates what they describe. For example, Claim 18 recites 10 “a computer program product having a computer readable storage medium with computer logic” 11 comprising “code for receiving . . . detecting . . . converting . . . translating . . . and . . . 12 transmitting.” Dkt. No. 1-1 at 9:54-10:14. These claims do not set forth an inventive algorithm or 13 specific computer logic. They abstractly describe code that performs the steps substantially 14 captured by Claim 1. “Merely reducing an abstract concept to a particular technical platform is 15 not enough to provide the inventive element needed to support a patent.” Broadcom Corp., ___ F. 16 Supp. 3d ___, 2023 WL 3958361 , at *5. Here, too, Claims 18-23 lack the inventive element 17 needed to justify separate treatment from Claim 1. 18 IV. THE ’588 PATENT IS DIRECTED TO AN ABSTRACT IDEA 19 Consequently, Claim 1 is an appropriate representative claim for the purposes of Section 20 101. As stated, Claim 1 recites a method comprising (1) “receiving a multimedia data stream at a 21 communication controller in a first . . .signaling protocol”; (2) “detecting a type of said first 22 protocol”; (3) “converting said first protocol into an intermediate protocol”; (4) “translating said 23 intermediate protocol into a second . . . signaling protocol”; and (5) “transmitting said multimedia 24 data stream in said second protocol to a target communications device.” Dkt. No. 1-1 at 7:26-41. 25 Polycom says that Claim 1, like the ’588 patent as a whole, is directed to the abstract idea 26 of translation. Polycom analogizes Claim 1, whereby a communication controller producing a 27 multimedia stream in one protocol can be understood by a communication controller using a 1 similar comparisons in prior representations to this Court. Dkt. No. 102 at 57:14-17 (directPacket 2 counsel stating at a hearing that “if one network speaks in Spanish and another network speaks in 3 English, you can communicate where the one side only hears Spanish; the one side only hears 4 English”). 5 directPacket’s main argument in favor of patent eligibility is that Claim 1’s recitation of an 6 intermediate protocol makes an analogy to translation inapt. This is said to be so because humans 7 “do not normally translate between two languages by first translating into a third language.” Dkt. 8 No. 269 at 10. 9 The point is not well taken. directPacket glides over the commonplace human 10 communication practice of the “relay translation,” which is precisely the translation of information 11 through an intermediate language. See Miriam Shlesinger, Relay Interpreting, in HANDBOOK OF 12 TRANSLATION STUDIES 277 (Yves Gambier & Luc van Doorslaer eds., 2010). Consider this 13 situation: two individuals want to talk to each other, but one speaks Arabic, the other speaks 14 German, and no Arabic-German translator can be found. Relay translation solves this problem by 15 using an intermediate language. The individuals may communicate through someone who can 16 translate from Arabic to English, and someone else who can translate from English to German. 17 Shlesinger, supra. English serves as an intermediate language to bridge the gap between Arabic 18 and German. 19 This is not an exotic or peculiar mode of communication. Relay translation is common in 20 polyglot communities for use in circumstances ranging from refugee and asylum centers to court 21 proceedings and sign language communication. See, e.g., Shlesinger, supra. (asylum); Fook 22 Khoon Wong, Courts Interpreting in a Multiracial Society -- The Malaysian Experience, in 23 INTERPRETING: YESTERDAY, TODAY, AND TOMORROW 108-116 (David Bowen & Margaret Bowen 24 eds., 1990) (Malaysian courts); Patrick Boudreault, Deaf Interpreters, in TOPICS IN SIGNED 25 LANGUAGE INTERPRETING 323-55 (Terry Janzen ed., 2005) (foreign sign language users). Relay 26 translation is also not a new practice. In 1837, for example, during the Bulgarian National 27 Revival, Gavril Krustevich translated Benjamin Franklin’s The Way to Wealth from English into 1 Kristeva, Traces of Hidden Multilingualism in 19th Century Bulgarian Literature and Culture, in 2 HIDDEN MULTILINGUALISM IN 19TH CENTURY EUR. LITERATURE (Jana-Katharina Mende ed., 3 2023). It may be, as directPacket suggests, that two-language translation is more common than 4 three, but that does not detract from relay translation as a tried-and-true method of human 5 communication. Consequently, the translation of “multimedia streams” using an intermediate 6 protocol is readily analogized to the abstract idea of language translation. 7 directPacket suggests that Claim 1 entails multiple steps that take it out of the realm of the 8 abstract idea. But multi-step claims can still be directed to an abstract idea. See, e.g., Broadcom 9 Corp., ___ F. Supp. 3d ___, 2023 WL 3958361 , at *8. The mentions in Claim 1 of five highly 10 generalized functionalities consisting of “receiving,” “detecting,” “converting,” “translating,” and 11 “transmitting,” do not make the claim non-abstract. See Two-Way Media Ltd., 874 F.3d at 1337 . 12 A pair of interpreters might “receive” a stream of speech from a speaker, “detect” that the speech 13 belongs to one language, “convert” that speech, word-by-word or phrase-by-phrase, from that first 14 language to the intermediate language, “translate” that speech from the intermediate language to 15 the final language, and “transmit” the fully translated speech to the target listener. 16 directPacket also suggests that the ’588 patent teaches “a non-abstract computer17 functionality improvement.” Ancora Techs., Inc. v. HTC Am., Inc., 908 F.3d 1343, 1348 (Fed. 18 Cir. 2018). Although directPacket makes variants of this argument under both steps of Alice, see 19 Dkt. No. 269 at 8-9, 12, the contention may be addressed at step one of the eligibility inquiry. See 20 Broadcom, ___ F. Supp. 3d ___, 2023 WL 3958361 , at *7 (analyzing a purported computer 21 functionality improvement under the first step of Alice). 22 A patent that discloses “a specific technique that departs from earlier approaches to solve a 23 specific computer problem” is not directed to an abstract idea under Alice. Ancora Techs., Inc., — 24 — 908 F.3d at 1348 . But Claim 1 is neither directed to a specific computer problem, nor does it 25 disclose a specific solution to such a problem. directPacket says that the ’588 patent solves a 26 technological problem inherent in “the peculiarities of the Internet -- such as its ‘ephemeral nature’ 27 or the ability of (and need for) ‘near-instantaneous transport between these locations.’” Dkt. No. 1 2014)). This generic invocation of “the Internet is not sufficient to save the patent.” Ultramercial, 2 Inc. v. Hulu, LLC, 772 F.3d 709, 716 (Fed. Cir. 2014) (citing CyberSource Corp. v. Retail 3 Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir. 2011)). DDR Holdings and allied cases are 4 inapposite because the ’588 patent addresses problems by no means unique to the Internet. 5 Human speech is often “ephemeral” as well. Conversation, in order to be intelligible, also requires 6 “near-instantaneous” transmission. directPacket has already compared the problems solved by the 7 ’588 patent -- when “two endpoints and systems speak different languages, and, thus, cannot 8 understand the messaging and data being transmitted by the other” -- to the problems addressed by 9 translation. Dkt No. 1-1 at 1:61-64; Dkt. No. 102 at 57:14-17. 10 Even if, solely for discussion, the ’588 patent were deemed to be directed to a purely 11 technological problem, it does not “recite a specific enough solution to make the asserted 12 technological improvement concrete.” Koninklijke KPN N.V. v. Gemalto M2M GmbH, 942 F.3d 13 1143, 1152 (Fed. Cir. 2019). directPacket certainly says that the ’588 Patent is directed to 14 “specific methods for achieving a specific function,” Dkt. No. 269 at 12, but it provided little in 15 the way of facts to plausibly support the contention. The five steps in Claim 1 are described in 16 “result-oriented generality” and do not disclose any non-abstract improvement upon existing 17 methods of translation. Koninklijke KPN, 942 F.3d at 1152. The Federal Circuit said as much in 18 an unpublished decision concluding that a claim directed at transmitting and converting data from 19 one format to another -- “including when data is received from one medium and sent along 20 through another” -- was directed towards the abstract idea of translation, “a fundamental 21 communication practice in both the electronic and pre-electronic worlds.” Adaptive Streaming 22 Inc. v. Netflix, Inc., 836 F. App’x 900 , 903 (Fed. Cir. 2020) (unpublished). The circuit court noted 23 prior decisions finding that ideas of “encoding and decoding . . . data and of converting formats” 24 are abstract. Id. at 903 (citing Two-Way Media Ltd., 874 F.3d at 1338 ; RecogniCorp, LLC v. 25 Nintendo Co., Ltd., 855 F.3d 1322, 1326-27 (Fed. Cir. 2017); EasyWeb Innovations, LLC. v. 26 Twitter, Inc., 689 F. App’x 969, 979 (Fed. Cir. 2017)). Here, too, Claim 1 offers an abstract 27 solution to an abstract problem. “Receiving” a data stream in one protocol; detecting, converting, 1 abstract than “encoding and decoding . . . data” and “converting formats.” Dkt. No. 1-1 at 7:262 41; Adaptive Streaming, 836 F.3d at 903. “Without more, namely without some specific, concrete 3 innovation, the idea remains abstract.” Broadcom Corp., ___ F. Supp. 3d ___, 2023 WL 3958361 , 4 at *7. 5 V. THE ’588 PATENT LACKS AN INVENTIVE CONCEPT 6 Claim 1 also does not “include an inventive concept sufficient to transform the claimed 7 abstract idea into a patent-eligible invention.” Yu. 1 F.4th at 1045. 8 To start, directPacket says that even if the ’588 Patent is directed to the abstract idea of 9 translation, it nevertheless recites an inventive concept through “a ‘specific ordered combination[] 10 of elements.’” Dkt. No. 269 at 12 (quoting Cellspin Soft, 927 F.3d at 1317-18 ). But Cellspin 11 involved claims where the ordering of steps was unconventional and deviated from well-known 12 and previously practiced techniques. Cellspin Soft, 927 F.3d at 1318 . In contrast, Claim 1 recites 13 a conventional, intuitive ordering of functions in the translation context. An alternate ordering, 14 where, for instance, information was “converted” before it had ever been “received,” would be 15 illogical. directPacket declares Claim 1’s ordering to be “innovative” but did not provide any facts 16 to back that up or explain precisely what makes that ordering so special. See Dkt. No. 269 at 12. 17 It recycles the suggestion that the introduction of an intermediate protocol is inventive, but as 18 discussed, translators may use intermediate languages to facilitate language translation. Unlike in 19 Cellspin, Claim 1 “amount[s] to nothing more than applying the above-identified abstract idea 20 using techniques that are, whether considered individually or as an ordered combination, well21 understood, routine, and conventional.” cxLoyalty, Inc. v. Maritz Holdings Inc., 986 F.3d 1367 , 22 1377 (Fed. Cir. 2021). 23 Claim 1 also does not teach a solution unique to a technical medium. It specifies only 24 generic computer hardware, including a “communication controller” and “communication 25 devices,” and lacks indicia of “anything more that would suffice to transform their subject matter 26 into an eligible application of the abstract ideal.” Adaptive Streaming, 836 F. App’x at 904. 27 Claim 1 does not “require[] anything other than off-the-shelf, conventional computer, network, 1 Power Grp., LLC vy. Alstom S.A., 830 F.3d 1350, 1355 (Fed. Cir. 2016). Absent evidence of 2 || “specific, unconventional encoding, decoding, . . . or broadcasting techniques,” Adaptive 3 || Streaming, 836 F. App’x at 904, Claim 1 does not state something “significantly more” than the 4 || underlying abstract idea to which it is directed. BSG Tech LLC, 899 F.3d at 1290 . 5 CONCLUSION 6 The first, second, and third claims of the complaint are dismissed with leave to amend. 7 directPacket may file an amended complaint by October 17, 2023. A failure to meet this deadline 8 will result in a dismissal of the claims under Federal Rule of Civil Procedure 41(b). 9 IT IS SO ORDERED. 10 Dated: September 26, 2023 — 11 — a (12 JAMES MONATO 13 United Btates District Judge — 15 — — 16 — = 17 Z 18 — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —