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TRADE DATA MOVING ON UP!!!!!
DATE TIMESTAMP PRICE VOLUME TICK DIRECTION CHANGE
11/13/2019 11:22:46 0.019 20,000 0.00
11/13/2019 11:20:44 0.019 42,500 0.00
11/13/2019 11:12:32 0.019 7,500 0.00
11/13/2019 11:12:32 0.01864 7,500 0.00
11/13/2019 11:06:27 0.018 170,000 -0.00
11/13/2019 11:06:12 0.0185 30,000 -0.00
11/13/2019 11:05:56 0.019 100,000 0.0
REAL-TIME LEVEL 2 QUOTE
MPID BID PRICE SIZE TIME
CDEL 0.019 117,500 11:40
ETRF 0.0185 69,500 11:15
GTSM 0.0185 10,000 11:20
CSTI 0.015 10,000 08:30
CFGN 0.0125 10,000 10/28
OTCX 0.0122 15,000 08:00
NITE 0.0122 10,000 09:16
MAXM 0.0001 10,000 07:35
MPID ASK PRICE SIZE TIME
GTSM 0.0195 10,000 11:40
CDEL 0.0199 173,752 11:40
CSTI 0.0199 10,000 08:30
NITE 0.0273 50,000 09:37
CFGN 0.029 10,000 10/17
OTCX 0.03 60,000 08:00
ETRF 0.035 24,000 09:30
MAXM 200.00 1 07:35
REAL-TIME LEVEL 2 QUOTE...MID 2'S TODAY?
MPID BID PRICE SIZE TIME
CDEL 0.018 230,000 11:06
GTSM 0.0161 50,000 09:30
CSTI 0.015 10,000 08:30
ETRF 0.0128 20,000 09:34
CFGN 0.0125 10,000 10/28
OTCX 0.0122 15,000 08:00
NITE 0.0122 10,000 09:16
MAXM 0.0001 10,000 07:35
MPID ASK PRICE SIZE TIME
GTSM 0.019 50,000 09:30
CDEL 0.0199 173,752 11:06
CSTI 0.0199 10,000 08:30
NITE 0.0273 50,000 09:37
CFGN 0.029 10,000 10/17
OTCX 0.03 60,000 08:00
ETRF 0.035 24,000 09:30
MAXM 200.00 1 07:35
I DIDNT KNOW THERE WERE CHARGES EITHER UNTIL I BECAME A PUBLIC COMPANY DIRECTOR
A.CENT.OR.SO.CHARGE.PER WORD FEES.ARE.COLLECTED BY.ALL.EXCHANGES.TO.COMPANIES.FOR.NEWS.RELEASES
REAL-TIME LEVEL 2 QUOTE
WHERE WILL WE END TODAY?
.19 ???
HMMM
MPID BID PRICE SIZE TIME
NITE 0.0158 50,000 12:23
GTSM 0.0158 10,000 15:07
CSTI 0.015 58,550 09:30
ETRF 0.0146 22,500 15:17
CDEL 0.0131 28,300 10:55
CFGN 0.0125 10,000 10/28
OTCX 0.0122 15,000 08:00
MAXM 0.0001 10,000 11/11
MPID ASK PRICE SIZE TIME
GTSM 0.016 81,500 15:07
ETRF 0.0161 173,752 15:17
NITE 0.019 100,000 09:30
CSTI 0.0199 10,000 08:30
CDEL 0.029 100,000 10:55
CFGN 0.029 10,000 10/17
OTCX 0.03 60,000 08:00
MAXM 200.00 1 11/11
[bI. INTRODUCTION Apple Inc. (“Petitioner”) filed a Petition requesting an inter partes review of claims 1-30 (“the challenged claims”) of U.S. Patent No. 9,948,549 B2 (Ex. 1001, “the ’549 Patent”). Paper 2 (“Pet.”). Voip-Pal.com, Inc. (“Patent Owner”) filed a Preliminary Response. Paper 6 (“Prelim. Resp.”). Under 35 U.S.C. § 314(a), an inter partes review may not be instituted unless the information presented in the petition “shows that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.” For the reasons stated below, we determine that Petitioner has not established a reasonable likelihood that it would prevail with respect to at least one claim. Therefore, no inter partes review is instituted in this proceeding. Chu is an enterprise dial plan that applies to all the user of the enterprise, not associated with a specific user individually.
Significantly, as Patent Owner notes (Prelim. Resp. 36-43), Dr. Lavian’s testimony improperly conflates Chu’s enterprise dial plan with a user-specific dial plan and conflates “subscriber” with “user.” Ex. 1005 ¶ 76. For example, Dr. Lavian states that “Chu expressly discloses geographically dispersed subscribers each of whom may use subscriber-specific dial plans,” and that “ecause one subscriber may call another, such a system would necessarily support storing a user-specific dial plan for the callee in the database as well.” Id. (emphases added). Furthermore, Dr. Lavian opines, without citing any specific support in Chu, that “a subscriber’s dial plan, in addition to an ID of the server, must necessarily include” a user-specific identifier, such as an E.164 telephone number, “because multiple subscribers can be associated with a single local telephone control server or database server.” Ex. 1005 ¶ 76 (emphasis added). Dr. Lavian’s testimony is unsupported by, and inconsistent with, Chu’s disclosure. Chu uses the server ID to access the enterprise dial plan, not a user identifier. Ex. 1003, 9:31-33 (noting that “the soft-switch 220 consults the dial plan for this subscriber” and the “dial plan to use can be determined from the ID of the server 110” (emphasis added)).
More importantly, Dr. Lavian’s testimony rests on the incorrect premise that a user-specific identifier is necessary because all subscribers (enterprises) use a server ID that does not include “unique subscriber-specific information.” See Ex. 1005 ¶ 76.
This ignores Chu’s teaching that “a subscriber can use their own IP address assignment plan in assigning IP addresses to the IP-PBX server.” Ex. 1003, 3:61-63 (emphasis added). As Chu explains, “[t]o each subscriber, it appears that all their locations are connected by a private network, although the same network is used to serve multiple subscribers,” and “[t]hus, the SP network is providing VoIP virtual private network service,” and “[t]he VoIP VPN service connects all the IP-PBXs of a subscriber into a single logical network.” Id. at 12:64-67, 3:55-56 (emphases added). In short, the server ID in Chu is unique to each subscriber (enterprise) because each subscriber uses their own IP address assignment plan.
Therefore, contrary to Dr. Lavian’s testimony, it is not necessary to use a user identifier, in addition to the server ID, to access Chu’s enterprise dial plan. In view of the foregoing, we give little, if any, weight to Dr. Lavian’s testimony (Ex. 1005 ¶¶ 71, 73, 76) relied upon by Petitioner to support its argument that the combination of Chu and Scott teaches or suggests using a user identifier to access a user-specific dialing plan. See 37 C.F.R. § 42.65(a)
(“Expert testimony that does not disclose the underlying facts or data on which the opinion is based is entitled to little or no weight.”); see also In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1368 (Fed. Cir. 2004) (noting that “the Board is entitled to weigh the declarations and conclude that the lack of factual corroboration warrants discounting the opinions expressed in the declarations”); Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 294 (Fed. Cir. 1985) (stating a lack of objective support for expert opinion “may render the testimony of little probative value in [a patentability] determination”).
Also we are not persuaded by Petitioner’s arguments, which are not supported by Scott or Chu, but instead merely based on speculation or conjecture
D. Obviousness over Chu and Scott Petitioner asserts that claims 1-10, 17-26, 29, and 30 are unpatentable under § 103(a) as obvious over Chu and Scott. Pet. 6–43. Patent Owner argues, among other things, that the asserted prior art combination fails to teach or suggest “using the first participant identifier to locate a first participant profile,” as required by the claims. Prelim. Resp. 31-48. For the reasons provided below, we agree with Patent Owner and determine that Petitioner has not demonstrated a reasonable likelihood of prevailing on its assertion that claims 1-10, 17-26, 29, and 30 are unpatentable.
III. CONCLUSION For the foregoing reasons, the information presented in the Petition and evidence in this record do not establish that there is a reasonable likelihood that Petitioner would prevail in challenging claims 1–30 of the ’549 Patent.
IV. ORDER Accordingly, it is ORDERED that the Petition is denied, and no trial is instituted.
IV. ORDER Accordingly, it is ORDERED that the Petition is denied, and no trial is instituted.]
.016'S ARE ALMOST GONE .019'S ARE NEXT
REAL-TIME LEVEL 2 QUOTE
MPID BID PRICE SIZE TIME
NITE 0.0158 50,000 12:23
GTSM 0.0151 263,000 13:56
CSTI 0.015 58,550 09:30
ETRF 0.0146 22,500 14:46
CDEL 0.0131 28,300 10:55
CFGN 0.0125 10,000 10/28
OTCX 0.0122 15,000 08:00
MAXM 0.0001 10,000 11/11
MPID ASK PRICE SIZE TIME
GTSM 0.016 120,000 14:47
ETRF 0.0161 173,752 14:46
NITE 0.019 100,000 09:30
CSTI 0.0199 10,000 08:30
CDEL 0.029 100,000 10:55
CFGN 0.029 10,000 10/17
OTCX 0.03 60,000 08:00
MAXM 200.00 1 11/11
REAL-TIME LEVEL 2 QUOTE
MPID BID PRICE SIZE TIME
NITE 0.0158 50,000 12:23
GTSM 0.0151 263,000 13:56
CSTI 0.015 58,550 09:30
ETRF 0.0146 22,500 12:15
CDEL 0.0131 28,300 10:55
CFGN 0.0125 10,000 10/28
OTCX 0.0122 15,000 08:00
MAXM 0.0001 10,000 11/11
MPID ASK PRICE SIZE TIME
ETRF 0.0161 423,752 13:31
GTSM 0.0161 120,000 14:27
NITE 0.019 100,000 09:30
CSTI 0.0199 10,000 08:30
CDEL 0.029 100,000 10:55
CFGN 0.029 10,000 10/17
OTCX 0.03 60,000 08:00
MAXM 200.00 1 11/11
1 million at. 0161 help yourself........
VIEW MALAKS POSITION....Technology for Internet Calling
ACCESSWIRE ACCESSWIREOctober 31, 2019
In an interview with CEOCFO Magazine, VOIP-PAL CEO and Director Emil Malak discusses their Patents on the technology needed to switch phone calls from land lines to internet connected calls
WASHINGTON, DC / ACCESSWIRE / October 31, 2019 / CEOCFO Magazine, an independent investment publication that highlights important technologies and companies, today announced an interview (https://www.ceocfointerviews.com/interviews/VOIP-PAL1019.htm) with Emil Malak, founder of Voip-Pal (VPLM), a Vancouver, B.C.-based company inventers and pioneers of the switching technology now being used by many of the world's largest telecommunication and social networking companies, without which they could not connect Landline phone calls to Internet phone calls.
As Malak explained in the interview, "We started with five original core patents which we first applied for in November 2006. Between April 2013 and March 2014 those five original patents were all issued. After each patent was issued we filed for continuation patents and have built a portfolio so far of more than 20 patents in the US alone. We also have patents in Europe, Indonesia, Asia and we are expecting approvals soon in other countries".
What the VOIP-PAL patented technology does is allow phone calls routed over the Internet to be seamlessly transferred between traditional landlines, cell phone networks and the internet. Without their technology this would be practically impossible and costly today. Malak notes, "The big players have broken our patent and are using our technology without licensing it. Each one should be paying a fee to use our technology".
Every company that is currently in telecommunications, whether internet or legacy (PSTN), such as AT&T, Verizon, T-Mobile, Sprint, Apple, and Facebook, and also companies like Amazon because of Alexa, and Google etc., have been and are still using our Voip-Pal system. "We consider their subscribers to be our indirect subscribers," says Malak
As Malak told CEOCFO's Bud Wayne, "We have been fighting some of the most powerful companies in the world in Apple, Amazon. AT&T, Verizon and Twitter. So far we have prevailed in eight IPR challenges and we expect to prevail soon in four others that were filed earlier this year. We are appealing an Alice 101 challenge before the Federal Appeals Court and defending against another in Federal District Court".
Malak explains how difficult it is for most companies and inventors to bring new technologies to the marketplace, "Big tech companies decided they no longer wanted to pay in order to use other company's patents; they wanted to simply steal intellectual property. So they spent billions of dollars in lobbying efforts."
In discussing other projects he is involved with Emil Malak tells CEOCFO, "We are working on a delivery method that will remove THC and all its harmful effects and just provide the user with all the positive benefits of CBD." When asked if he would patent his other projects, Malak responds, "Oh no! I am following my own advice… We will keep our technology as a strict trade secret".
Contact:
Bud Wayne
CEOCFO Magazine
570-851-1745
budwayne@ceocfomagazine.com
SOURCE: Voip-Pal.com, Inc.;
I believe it has passed , though the judge has discretion to provide more than the 30, 45 or 60 day amount for appeal.
NO IDEA ..WILL CHECK IF I HAVE TIME
SINCE KIPPING " WON ",SHOULD.HE.NOT.ALSO.GET.HIS.LEGAL.COSTS ?
HOW MUCH?
ANYONE GOT AN IDEA OF THIS AS ITS BEEN YEARS AT COURT... THE BILL MUST BE QUITE HIGH....
WHO PAYS THAT ? HOW DO THE NAMED DEBTORS SPLIT IT UP ?
INTERESTING SCENE...
WHO SORTS THIS ALL OUT?
Q:VPLM - VOIP PAL COM INC - http://www.voip-pal.com 12:10:25 EDT
Recent Trades - All 9 today
Time ET Ex Price Change Volume
11:23:41 Q 0.02345 0.0037 5,000
10:53:36 Q 0.0236 0.00385 10,000
10:45:57 Q 0.0236 0.00385 10,000
10:32:36 Q 0.02265 0.0029 3,300
09:48:57 Q 0.025 0.00525 25,000
09:41:49 Q 0.0207 0.00095 3,000
09:41:38 Q 0.0233 0.00355 5,000
09:31:30 Q 0.029 0.00925 5,000
09:30:00 Q 0.029 0.00925 30,000
we need to get through the top of the gap at 5 cents..
THEN ???????
Emil has and is involved in two other projects. HE IS REFERRING TO THE OTHER PROJECTS NOT VPLM. THEY WILL BE KEPT SECRET SO A REPEAT OF VPLM'S PROBLEM WILL NOT HAPPEN AGAIN.. ONE IS 10 TIMES THE SIZE THAT VPLM WAS IN 2013.....
WE SHALL SEE.........
RK
DOES HE GET LEGAL FEES ALSO ? HOW MUCH?
EXCHANGE RATE US/CAD=1.33 APPROXIMATELY.
500,000 US = ABOUT 666,000 CAD
BIG BUCKS
Thursday, October 17, 2019
82 oth_evtClerk's Notice ~Util - Set Motion and Deadlines/HearingsThu 4:42 PM
**CLERK'S NOTICE** Claims Construction Hearing CONTINUED from 10/24/2019 to 11/7/2019 at 1:30 PM in San Jose, Courtroom 8, 4th Floor. (This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF)
Continued....means that will be the range of dates allocated for hearing claim construction
??It was motion number 74, not 74 MOTIONS, that was ruled on. Vplm had 7 days to respond to a filing and
finally DID SO about 3 months late... Sloppy legal WORK?
O
0.0185
DAILY RANGE
0.018 - 0.01896
VOLUME
420,000
DIVIDEND
N/A
PREV CLOSE
0.0177
52WK RANGE
0.01 - 0.095
AVERAGE VOL (30D)
773,174
NET DIVIDEND YIELD
N/A
BEST BID
0.0189 x 447002
BEST ASK
0.019 x 110000
MARKET CAP Market Cap
34,627,883
SHARES OUT
1,956,377,592
REAL-TIME LEVEL 2 QUOTE
MPID BID PRICE SIZE TIME
ETRF 0.0189 311,500 15:34
GTSM 0.0189 135,502 14:24
CDEL 0.0177 48,300 14:14
CSTI 0.017 49,000 15:24
NITE 0.01 1,050,000 15:11
MAXM 0.0001 10,000 07:35
OTCX U 0 07:45
MPID ASK PRICE SIZE TIME
ETRF 0.019 100,000 15:34
GTSM 0.019 10,000 14:14
CDEL 0.02 100,000 14:14
NITE 0.0244 25,000 09:30
CSTI 0.032 25,000 09:30
MAXM 200.00 1 07:35
OTCX U 0 07:45
TRADE DATA
DATE TIMESTAMP PRICE VOLUME TICK DIRECTION CHANGE
10/04/2019 15:51:18 0.01896 30,000 0.00
10/04/2019 15:24:27 0.0189 100,000 0.00
10/04/2019 15:24:12 0.0189 6,000 0.00
10/04/2019 14:25:07 0.0189 7,000 0.00
10/04/2019 14:14:36 0.0189 10,000 0.00
10/04/2019 13:48:00 0.018 162,000 -0.00
10/04/2019 13:47:58 0.0185 65,000 -0.00
10/04/2019 13:47:35 0.0187 30,000 0.00
10/04/2019 13:37:06 0.0185 10,000 0.00
10/03/2019 15:45:32 0.0177 5,000 0.00
Irregular/odd lot trades, which are not considered for the Open, High, Low or Closing prices, are not shown in trade data table.
SHORT INTEREST
DATE SHORT INTEREST % CHANGE AVG. DAILY SHARE VOL DAYS TO COVER SPLIT NEW ISSUE
07/31/2019 16,368 100.00 1,648,903 1 No No
06/14/2019 6,000 100.00 1,807,400 1 No No
05/15/2019 6,500 -54.95 1,831,918 1 No No
04/30/2019 14,428 100.00 3,380,942 1 No No
04/15/2019 6,547 -68.64 9,265,917 1 No No
03/29/2019 6,547 -68.64 9,265,917 1 No No
03/15/2019 20,879 -74.29 1,435,316 1 No No
02/28/2019 81,222 -33.05 1,288,708 1 No No
02/15/2019 121,317 84.85 1,261,512 1 No No
01/31/2019 65,630 -52.52 1,337,812 1 No No
Level 2 Quote Montage: MMID - OTC Link Inside Quote | MMID - OTC Link Quote | cMMID - Closed Quote | U - Unpriced Quote | MMIDu - Unsolicited Quote. All trade/quote prices in USD.
OTCQB Member Since 07/2016
OTCQB
OTCQB Venture
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
APPLE INC.,
Petitioner,
v.
VOIP-PAL.COM, INC.,
Patent Owner
____________
Cases IPR2016-01198 and IPR2016-01201
Patents 9,179,005 B2 and 8,542,815 B2
____________
Before SCOTT R. BOALICK, Chief Administrative Patent Judge, JACQUELINE
WRIGHT BONILLA, Deputy Chief Administrative Patent Judge, and MICHAEL
P. TIERNEY, Vice Chief Administrative Patent Judge.
BOALICK, Chief Administrative Patent Judge.
DECISION
Denying Petitioner’s Request for Rehearing
37 C.F.R. § 42.71(d)1
1 This decision pertains to both Cases IPR2016-01198 and IPR2016-01201, as
Petitioner’s Requests for Rehearing are substantively the same in each case.
Citations are to the paper numbers in Case IPR2016-01198.
IPR2016-01198 and IPR2016-01201
Patents 9,179,005 B2 and 8,542,815 B2
2
I. BACKGROUND
On December 21, 2018, an Order was entered granting-in-part a motion for
sanctions filed by Petitioner Apple Inc. (“Petitioner”). Paper 70 (“Order”). The
Order authorized Petitioner to file a request for rehearing of the Final Written
Decision entered on November 20, 2017 (Paper 53, “Final Written Decision” or
“FWD”). Order 13–16. The Order also authorized Patent Owner Voip-Pal.com,
Inc. (“Patent Owner”) to file a response to Petitioner’s request for rehearing, and
Petitioner to file a reply. Id.
In accordance with the Order, Petitioner filed a Request for Rehearing.
Paper 71 (“Reh’g Req.”). In response, Patent Owner filed an Opposition to the
Request for Rehearing. Paper 73 (“Reh’g Opp’n”). Petitioner also filed a Reply in
support of its Request for Rehearing. Paper 74 (“Reh’g Reply”).
At the outset, we note that in a request for rehearing we do not review the
merits of the Final Written Decision de novo. Instead, we consider whether
Petitioner has met its burden of showing that a matter has been misapprehended or
overlooked in the Final Written Decision. 37 C.F.R. § 42.71(d) (“The burden of
showing a decision should be modified lies with the party challenging the decision.
The request must specifically identify all matters the party believes the Board
misapprehended or overlooked, and the place where each matter was previously
addressed in a motion, an opposition, or a reply.”). We conclude that Petitioner
has not met this burden in its Request for Rehearing.
II. ANALYSIS
In the Final Written Decision issued in each of the above-captioned cases,
the panel determined that Petitioner had not shown by a preponderance of the
evidence that the challenged claims (i.e., claims 1, 24–26, 49, 50, 73–79, 83, 84,
IPR2016-01198 and IPR2016-01201
Patents 9,179,005 B2 and 8,542,815 B2
3
88, 89, 92, 94–96, 98, and 99 of U.S. Patent No. 9,179,005 B2, and claims 1, 7, 27,
28, 34, 54, 72–74, 92, 93, and 111 of U.S. Patent No. 8,542,815 B2, respectively)
would have been obvious over (1) Chu ’6842 and Chu ’366,3 or (2) Chu ’684 and
Chen.4, 5
In its Request for Rehearing, Petitioner asserts that, in the Final Written
Decision in both cases,
6 the panel misunderstood the nature of the proposed
combinations of prior art references (Reh’g Req. 7–9), as well as the proposed
combination’s application to the step ordering required by the challenged claims
(id. at 9–13), and that the panel did not adequately consider the asserted reasons to
combine the references (id. at 14–17).
2
U.S. Patent No. 7,486,684 B2 to Chu et al. issued Feb. 3, 2009 (Ex. 1006) (“Chu
’684”).
3
U.S. Patent No. 8,036,366 B2 to Chu issued Oct. 11, 2011 (Ex. 1007) (“Chu
’366”).
4
U.S. Patent Application Publication No. 2007/0064919 A1 to Chen et al.
published Mar. 22, 2007 (Ex. 1008) (“Chen”).
5
On March 25, 2019, in a district court case involving Patent Owner and
Petitioner (among other defendants), the U.S. District Court of the Northern
District of California granted a motion to dismiss, finding that “asserted multinetwork claims (claims 1, 7, 12, 27, 28, 72, 73, 92, and 111 of the ’815 Patent and
claims 49 and 73 of the ’005 Patent) and the asserted single-network claims
(claims 74, 75, 77, 78, 83, 84, 94, 96, and 99 of the ’005 Patent) are directed to
unpatentable subject matter and are thus invalid under 35 U.S.C. § 101.” VoipPal.Com, Inc. v. Apple Inc., No. 18-CV-06217-LHK, 2019 WL 1332762, at *25
(N.D. Cal. Mar. 25, 2019), appeal docketed, No. 19-1808 (Fed. Cir. Apr. 26,
2019).
6
As noted above, arguments presented in the Request for Rehearing papers in
both cases are substantively the same. Thus, we refer to the Final Written Decision
and Request for Rehearing papers in the singular, citing papers in Case IPR2016-
01198, as also noted above.
IPR2016-01198 and IPR2016-01201
Patents 9,179,005 B2 and 8,542,815 B2
4
A. Nature of the Proposed Combinations
Petitioner contends that the panel failed to properly consider how the
asserted combinations would function because the panel misunderstood the
combinations and did not expressly discuss certain of Petitioner’s arguments,
particularly those set forth in Petitioner’s Reply to Patent Owner’s Response
(Paper 34, “Reply”). Reh’g Req. 7–9. Petitioner asserts the panel showed it
misunderstood the nature of the combinations by criticizing Petitioner for failing to
explain why Chu ’684’s assessment of dialed digits would apply to a reformatted
number. Id. at 8 (citing FWD 22–23). Petitioner states that, in the asserted
combinations, “the Chu ’684 system could continue to receive and process long
form E.164 compatible numbers as per its normal disclosed operation.” Id.
According to Petitioner, it need not explain how Chu ’684 would process numbers
converted to E.164 format because Chu ’684 already used such numbers. Id. at 9.
Petitioner’s argument for error asserts that “Chu ’684 contemplates receiving long
form E.164 compatible numbers.” Reh’g Req. 9; accord id. (“the same E.164
compatible format that Chu ’684 expressly contemplates using”); Reh’g Reply 1
(“[I]n the Proposed Combinations, Chu ’684 receives the very E.164-compliant
numbers that it processes.”).
Patent Owner disputes Petitioner’s factual assertion, pointing to record
evidence that, in Chu ’684, users would dial according to the dialing conventions
of their geographic area. Reh’g Opp’n 8 (citing Ex. 2016 ¶ 66). Patent Owner’s
expert witness, Dr. Mangione-Smith, testified that “in Chu ’684, the users would
dial PSTN ‘public numbers’ based on the location of the customer premises.”
Ex. 2016 ¶ 66 (citing Ex. 1006, Fig. 2). Figure 2 of Chu ’684 supports Dr.
Mangione-Smith’s testimony, in that Figure 2 of Chu ’684 illustrates customer
premises 105 (which includes IP phones) as connected to a service provider central
office 205. See Ex. 1006, Fig. 2; Reh’g Opp’n 9 (contrasting Petitioner’s assertion
IPR2016-01198 and IPR2016-01201
Patents 9,179,005 B2 and 8,542,815 B2
5
that “IP phones . . . are not tied to any specific physical location and thus do not
inherently provide the user an option to dial short form numbers” with Figure 2 of
Chu ’684 (emphasis omitted) (quoting Paper 44, 8)).
Patent Owner also points out that, when Chu ’684 discusses E.164 numbers,
it is in the context of assigning such numbers to IP-based phones, not in in the
context of placing calls by such phones to other such phones. Reh’g Opp’n 7 n.2
(citing Ex. 1006, 13:1–11; Ex. 2016 ¶ 66; Reply 21–23 (relying on disclosure in
Chu ’684)). Patent Owner also identifies that Chu ’684’s “public E.164 telephone
numbers” are not compliant with the “long-form E.164 format, which would
require a ‘+’ sign and country code.” Id. (citing Ex. 1006, 13:4) (explaining that an
example of a “public E.164 telephone number” provided in Chu ’684 is “732-949-
xxxx,” which does not include the “+” sign and country code of a fully formatted
E.164 number, and is instead the local dialing format used in area code 732).
These two distinctions reinforce the view of Patent Owner’s declarant, Dr.
Mangione-Smith.
And, as Patent Owner points out, the panel relied on the same evidence—
testimony by Dr. Mangione-Smith—when rejecting Petitioner’s view of the prior
art and reason for the combination. See FWD 19 (citing Ex. 2016 ¶¶ 65–67);
Reh’g Opp’n 6. Thus, when the panel concluded that Petitioner had not shown that
Chu ’684’s method would apply to a number reformatted by the secondary
references (see FWD 22–23), it relied on record evidence supporting its
conclusion. We determine that the panel did not misapprehend the nature of the
proposed combination; rather, based on the record, it resolved a factual dispute and
concluded that Petitioner failed to show the proposed combination would operate
as asserted.
IPR2016-01198 and IPR2016-01201
Patents 9,179,005 B2 and 8,542,815 B2
6
Even if we were to accept Petitioner’s view of Chu ’684, however, we would
not reach a different conclusion. The panel stated that, “when determining the
public or private network affiliation of a call,” Chu ’684 discloses a method using
“the dialed digits”—i.e., a method that routes calls based on characteristics of how
they were dialed—and that Petitioner had not shown reformatted numbers would
function in the same way. FWD 22. Petitioner’s Request for Rehearing,
meanwhile, takes the position that no explanation is required for why or how
reformatted numbers would be processed differently than typical numbers used in
Chu ’684. Reh’g Req. 9; see also id. at 8 (stating that in the proposed
combination, “the Chu ’684 system could continue to receive and process long
form E.164 compatible numbers as per its normal disclosed operation”).
The panel ultimately concluded that Petitioner failed to show the caller’s
attributes form a basis for routing messages. FWD 24 (discussing the “requirement
that calling attributes associated with a caller form the basis, in-part, for ultimately
assessing whether private network or public network classification criteria have
been met and routing of messages based on that assessment”). In reaching this
conclusion, the panel relied on Chu ’684 and Dr. Mangione-Smith’s testimony. Id.
at 22 (citing Ex. 1006, 8:56–9:1; Ex. 2016 ¶ 71 (opining that in Chu ’684, “the
analysis of the dialed digits does not require knowledge of the attributes of a
caller”)). Thus, even if Chu ’684 could accept “long form E.164” numbers, the
panel relied on record evidence that Petitioner failed to show Chu ’684’s routing
would function the same for reformatted local numbers as for dialed local numbers.
Accordingly, we conclude the panel did not misapprehend or overlook any matter
in concluding that Petitioner failed to explain adequately how Chu ’684 or the
proposed combination teaches or suggests making a determination regarding where
to route messages based in part on calling attributes associated with the caller.
IPR2016-01198 and IPR2016-01201
Patents 9,179,005 B2 and 8,542,815 B2
7
We also do not find the panel’s lack of Reply citations to indicate the panel
misapprehended or overlooked the nature of Petitioner’s proposed combination.
See, e.g., Reh’g Req. 8. Petitioner summarizes its proposed combinations as
“rel[ying] on Chu ’684 for its infrastructure, call classifying, and call routing
teachings” and the secondary references for their “caller profile and dialed digit
reformatting teachings.” Id. at 3. As Patent Owner points out, the Final Written
Decision expressly recognizes that Petitioner relies on the secondary references for
their teachings as to “calling attributes” (which form part of the “caller dialing
profile”) and “reformatting.” Reh’g Opp’n 14 (citing FWD 21–22). Although
Petitioner asserts that it explained the proposed combination in a “step-wise
fashion” in the Reply, the Reply does not change the nature of the proposed
combination. Reh’g Req. 7 (citing Reply 15–16).
B. Step-Ordering
Petitioner also argues that the panel misunderstood how the proposed
combination applies to the claims and therefore reached an erroneous conclusion
that the combination did not fit with the required sequence of steps. Reh’g Req. 9–
13 (quoting FWD 24). According to Petitioner, the panel should not have
addressed a step-ordering argument that was made by Patent Owner only in the
Preliminary Response and rejected in the Institution Decision. Id. at 10–11. Thus,
in Petitioner’s view, the panel reached a conclusion based on a mapping
inconsistent with the asserted combination. Id. at 12. Patent Owner responds that
Petitioner’s current position represents a shift to account for citing Chu ’684’s
steps in a sequence inconsistent with the steps of the challenged claims. Reh’g
Opp’n 18–19. In Patent Owner’s view, the panel’s discussion of step ordering
accounted for multiple possibilities permitted by Petitioner’s ambiguous assertions.
Id.
IPR2016-01198 and IPR2016-01201
Patents 9,179,005 B2 and 8,542,815 B2
8
The panel stated that using Chu ’684’s “step 610” to help locate a caller
dialing profile and then using Chu ’684’s “step 608” to route private versus public
messages, as cited in the Petition (see Pet. 17–20), would not comply with the
claim-step ordering. FWD 23–24. Petitioner contends that the panel
misunderstood the asserted mapping and argues that “the Proposed Combinations
do not rely on step 610 of Chu ’684 alone for the caller profile limitation.” Reh’g
Req. 11. As Patent Owner points out, however, the panel reasonably addressed a
possible mapping raised in the Petition and discussed by Petitioner’s declarant.
Reh’g Opp’n 18–19; see also Ex. 1009 ¶ 45 (opinion by Petitioner’s expert that
“Chu ’684 discloses using a caller identifier to locate a caller dialing profile”);
PO Resp. 61–65 (disputing the possible mapping as inconsistent with claim-step
ordering). The panel rejected that mapping as inconsistent with the claim-step
ordering. The panel’s statement simply recognized that a combination preserving
the routing of private-network calls—where such calls are analyzed based on the
dialed digits first, before possible reformatting—would require jumping back and
forth between teachings in the art in order to follow the claim sequence. Because
the Petition provided insufficient explanation to support such an approach, we
determine that the panel did not err.
C. Reasons To Combine
Petitioner further argues that the panel overlooked the full extent of the
reasons why ordinary skilled artisans would have combined one of the secondary
references with Chu ’684. Reh’g Req. 14–17. According to Petitioner, based on
the totality of arguments, the panel should have appreciated that the proposed
combination introduces support for “short form dialing (e.g., 555-1234)” and thus
is an “‘intuitive’ and ‘user-friendly’ modification of Chu ’684.” Id. at 16–17.
Because the panel quoted two paragraphs of the Petition discussing the
IPR2016-01198 and IPR2016-01201
Patents 9,179,005 B2 and 8,542,815 B2
9
combination’s benefits, Petitioner asserts that the panel overlooked additional
explanation. Id. at 14 (citing FWD 18–21). According to Petitioner, the panel did
not apprehend “that Chu ’684 did not contemplate allowing short form dialing and
that the combination of Secondary References was necessary to supply that
benefit.” Id. at 17.
As discussed above (see supra at 4?5), Patent Owner disputes Petitioner’s
view of Chu ’684. See Reh’g Opp’n 7–10 (relying on its declarant to argue that
Chu ’684 does not operate as asserted by Petitioner, undermining Petitioner’s
justification for the combination); PO Resp. 70 (citing Ex. 2016 ¶ 66). Petitioner
contends that Dr. Mangione-Smith’s testimony did not address the asserted
combination and therefore provided no need for a reply declaration. Reh’g Reply
7–8. We do not agree with Petitioner’s position, for the reasons stated above.
Petitioner does not raise any basis on which we should discount the panel’s
reliance on Dr. Mangione-Smith’s testimony regarding the reason to combine.7
We conclude that the panel did not misapprehend Chu ’684’s operation when it
concluded that the Petition failed to show Chu ’684 is deficient and ripe for
improvement. Instead, it resolved a factual dispute in Patent Owner’s favor based
on record evidence.
Petitioner argues also that it need not show a technical deficiency in
Chu ’684 in order to rely on a secondary reference for a particular teaching.
Reh’g Reply 5. We agree with Petitioner that Petitioner is not required to identify
7 Petitioner argues that Dr. Mangione-Smith’s testimony was irrelevant “because
he is not a telephony expert” (Reh’g Reply 7–8), but Petitioner did not seek to
exclude the testimony. Rather, Petitioner argued for reduced weight (Reply 19–
21), and does not argue that the panel overlooked the argument (see generally
Reh’g Req.). On the contrary, the panel found Dr. Mangione-Smith to be
sufficiently qualified. FWD 11–13.
IPR2016-01198 and IPR2016-01201
Patents 9,179,005 B2 and 8,542,815 B2
10
a technical deficiency in Chu ’684 to show obviousness. Petitioner, however,
asserted the secondary references would have improved Chu ’684. See, e.g., Pet.
16 (“One of ordinary skill in the art would thus have appreciated that these
improvements to Chu ’684 could be achieved . . . .”). Based on the panel’s
conclusion regarding Chu ’684, it rejected Petitioner’s view that adding teachings
of Chu ’366 would have made Chu ’684’s interface more intuitive and user
friendly. FWD 18–19. Thus, by concluding that Petitioner had not shown a
“deficiency” in Chu ’684, the panel rejected any benefit that would have come
from the combination. Id. at 19. Stated otherwise, an alleged deficiency in
Chu ’684 and an alleged benefit of adding teachings from a secondary reference
are two sides of the same coin. The panel recognized that Petitioner bore the
burden to establish unpatentability and concluded Petitioner had fallen short of
carrying that burden. Id. at 20–21. In light of the panel’s factual determination
regarding Chu ’684, we conclude that the panel did not misapprehend Petitioner’s
arguments regarding reasons to combine.
D. Antedated Prior Art
Finally, Patent Owner argues in its opposition to the Motion that it antedated
the asserted prior art and should prevail on that independent basis.
Reh’g Opp’n 20. We do not reach that issue because we conclude that Petitioner’s
Request for Rehearing fails to demonstrate that the Final Written Decision
misapprehended or overlooked any matter.
III. CONCLUSION
We deny Petitioner’s Request for Rehearing because we determine that
Petitioner has not met its burden to show that in the Final Written Decision, the
panel misapprehended or overlooked any matter.
IPR2016-01198 and IPR2016-01201
Patents 9,179,005 B2 and 8,542,815 B2
11
IV. ORDER
It is, therefore,
ORDERED that Petitioner’s Request for Rehearing is denied.
IPR2016-01198 and IPR2016-01201
Patents 9,179,005 B2 and 8,542,815 B2
12
PETITIONER:
Adam P. Seitz
Eric A. Buresh
Paul R. Hart
ERISE IP, P.A.
adam.seitz@eriseip.com
Eric.Buresh@eriseip.com
Paul.Hart@eriseip.com
PATENT OWNER:
Kevin N. Malek
MALEK MOSS PLLC
kevin.malek@malekmoss.com
Kerry Taylor
John M. Carson
KNOBBE, MARTENS,
IPR2016-01198 and IPR2016-01201 Patents 9,179,005 B2 and 8,542,815 B2 9 combination’s benefits, Petitioner asserts that the panel overlooked additional explanation. Id. at 14 (citing FWD 18–21). According to Petitioner, the panel did not apprehend “that Chu ’684 did not contemplate allowing short form dialing and that the combination of Secondary References was necessary to supply that benefit.” Id. at 17. As discussed above (see supra at 4?5), Patent Owner disputes Petitioner’s view of Chu ’684. See Reh’g Opp’n 7–10 (relying on its declarant to argue that Chu ’684 does not operate as asserted by Petitioner, undermining Petitioner’s justification for the combination); PO Resp. 70 (citing Ex. 2016 ¶ 66). Petitioner contends that Dr. Mangione-Smith’s testimony did not address the asserted combination and therefore provided no need for a reply declaration. Reh’g Reply 7–8. We do not agree with Petitioner’s position, for the reasons stated above. Petitioner does not raise any basis on which we should discount the panel’s reliance on Dr. Mangione-Smith’s testimony regarding the reason to combine.7 We conclude that the panel did not misapprehend Chu ’684’s operation when it concluded that the Petition failed to show Chu ’684 is deficient and ripe for improvement. Instead, it resolved a factual dispute in Patent Owner’s favor based on record evidence. Petitioner argues also that it need not show a technical deficiency in Chu ’684 in order to rely on a secondary reference for a particular teaching. Reh’g Reply 5. We agree with Petitioner that Petitioner is not required to identify 7 Petitioner argues that Dr. Mangione-Smith’s testimony was irrelevant “because he is not a telephony expert” (Reh’g Reply 7–8), but Petitioner did not seek to exclude the testimony. Rather, Petitioner argued for reduced weight (Reply 19–21), and does not argue that the panel overlooked the argument (see generally Reh’g Req.). On the contrary, the panel found Dr. Mangione-Smith to be sufficiently qualified. FWD 11–13.
IPR2016-01198 and IPR2016-01201 Patents 9,179,005 B2 and 8,542,815 B2 10 a technical deficiency in Chu ’684 to show obviousness. Petitioner, however, asserted the secondary references would have improved Chu ’684. See, e.g., Pet. 16 (“One of ordinary skill in the art would thus have appreciated that these improvements to Chu ’684 could be achieved . . . .”). Based on the panel’s conclusion regarding Chu ’684, it rejected Petitioner’s view that adding teachings of Chu ’366 would have made Chu ’684’s interface more intuitive and user friendly. FWD 18–19. Thus, by concluding that Petitioner had not shown a “deficiency” in Chu ’684, the panel rejected any benefit that would have come from the combination. Id. at 19. Stated otherwise, an alleged deficiency in Chu ’684 and an alleged benefit of adding teachings from a secondary reference are two sides of the same coin. The panel recognized that Petitioner bore the burden to establish unpatentability and concluded Petitioner had fallen short of carrying that burden. Id. at 20–21. In light of the panel’s factual determination regarding Chu ’684, we conclude that the panel did not misapprehend Petitioner’s arguments regarding reasons to combine. D. Antedated Prior Art Finally, Patent Owner argues in its opposition to the Motion that it antedated the asserted prior art and should prevail on that independent basis. Reh’g Opp’n 20. We do not reach that issue because we conclude that Petitioner’s Request for Rehearing fails to demonstrate that the Final Written Decision misapprehended or overlooked any matter. III. CONCLUSION We deny Petitioner’s Request for Rehearing because we determine that Petitioner has not met its burden to show that in the Final Written Decision, the panel misapprehended or overlooked any matter.
IPR2016-01198 and IPR2016-01201 Patents 9,179,005 B2 and 8,542,815 B2 11 IV. ORDER It is, therefore, ORDERED that Petitioner’s Request for Rehearing is denied.
THE REHEARING REQUEST BY APPLE HELPED VPLM AS IT SPELLED OUT EXACTLY WHY PTAB DID NOT ERR IN ITS DECISION. WHEN CONSIDERING APPEAL THE FEDERAL COURT WILL LOOK AT THIS FURTHER REVIEW IN ADDITION TO THE FINAL WRITTEN DECISION AND LIKELY DETERMINE TO EITHER NOT TO GRANT THE APPEAL REQUEST OR SIMPLY ECHO THE DECISION OF THE PTAB.
PTAB DENIED APPLE'S REQUEST FOR REHEARING AND REVIEW OF FINAL WRITTEN DECISION.....
III. CONCLUSION
We deny Petitioner’s Request for Rehearing because we determine that
Petitioner has not met its burden to show that in the Final Written Decision, the
panel misapprehended or overlooked any matter.
IPR2016-01198 and IPR2016-01201
Patents 9,179,005 B2 and 8,542,815 B2
11
IV. ORDER
It is, therefore,
ORDERED that Petitioner’s Request for Rehearing is denied
Apple Asks Fed. Circ. To Nix PTAB Decisions Over ... - Law360
https://www› articles › apple-asks-fed-circ-to-nix-ptab-decision...
3 hours ago - Law360 (September 24, 2019, 4:42 PM EDT) -- Accusing its rival of waging "a campaign of intimidation" to influence two Patent Trial and Appeal Board decisions in 2017, Apple urged the Federal Circuit on Monday to vacate those decisions, saying the board failed to appropriately sanction Voip-Pal.com Inc.'s misconduct.
For appeals the grounds are very narrow.
PTAB must have made a mistake on understanding the law, overlooked a critical piece of evidence or been unduly influenced.
Remember, PTAB can actually step in and defend its decision independent of VPLM.
Very unlikely the appeal will be successful unless there is something glaringly obvious that went wrong.
Apple Asks Fed. Circ. To Nix PTAB Decisions Over ... - Law360
https://www.law360.com › articles › apple-asks-fed-circ-to-nix-ptab-decision...
3 hours ago - Law360 (September 24, 2019, 4:42 PM EDT) -- Accusing its rival of waging "a campaign of intimidation" to influence two Patent Trial and Appeal Board decisions in 2017, Apple urged the Federal Circuit on Monday to vacate those decisions, saying the board failed to
appropriately sanction Voip-Pal.com Inc.'s misconduct.
(September 24, 2019, 4:42 PM EDT) -- Accusing its rival of waging "a campaign of intimidation" to the board failed to appropriately sanction Voip-Pal.com.
Litigation, k developments including litigation filings, case settlements, verdicts, regulation, en...
?
Voip-Pal.com, Inc. v. Apple, Inc.
California Northern District Court
Judge: Lucy H Koh
Case #: 5:18-cv-06216
Nature of Suit 830 Property Rights - Patent
Cause 15:1126 Patent Infringement
Case Filed: Oct 15, 2018
Docket
Parties (2)
Opinions (4)
Docket last updated: 5 hours ago
Friday, September 13, 2019
100 oth_evtClerk's Notice ~Util - Set Motion and Deadlines/HearingsFri 1:13 PM
CLERK'S NOTICE RESETTING CLAIMS CONSTRUCTION HEARING AND FURTHER CASE MANAGEMENT CONFERENCE. Claims Construction Hearing set for 10/24/2019 01:30 PM in San Jose, Courtroom 8, 4th Floor. Case Management Statement due by 11/6/2019. Further Case Management Conference set for 11/13/2019 02:00 PM in San Jose, Courtroom 8, 4th Floor. (This is a text-only entry generated by the court. There is no document associated with this entry.) . (tshS, COURT STAFF)
Thursday, September 12, 2019
99 misc Joint Case Management StatementThu 3:57 PM
JOINT CASE MANAGEMENT STATEMENT filed by Voip-Pal.com, Inc.. (Malek, Kevin)
Voip-Pal.com, Inc. v. Amazon.com, Inc. et al
California Northern District Court
Judge: Lucy H Koh
Referred: Virginia K Demarchi
Case #: 5:18-cv-07020
Nature of Suit 830 Property Rights - Patent
Cause 28:1338 Patent Infringement
Case Filed: Nov 19, 2018
Docket
Parties (4)
Docket last updated: 5 hours ago
Friday, September 13, 2019
78 oth_evtClerk's Notice ~Util - Set Motion and Deadlines/HearingsFri 1:10 PM
CLERK'S NOTICE RESETTING CLAIMS CONSTRUCTION HEARING AND FURTHER CASE MANAGEMENT CONFERENCE. Claims Construction Hearing set for 10/24/2019 01:30 PM in San Jose, Courtroom 8, 4th Floor. Case Management Statement due by 11/6/2019. Further Case Management Conference set for 11/13/2019 02:00 PM in San Jose, Courtroom 8, 4th Floor. (This is a text-only entry generated by the court. There is no document associated with this entry.) . (tshS, COURT STAFF)
Thursday, September 12, 2019
77 misc Joint Case Management StatementThu 3:58 PM
JOINT CASE MANAGEMENT STATEMENT filed by Voip-Pal.com, Inc.. (Malek, Kevin)
investor relations just shared THIS.with.everyone.on.their.mailing.list.
2019-1808; -1812; -1813; -1814
United States Court of Appeals
for the Federal Circuit
VOIP-PAL.COM, INC.,
Plaintiff-Appellant,
– v. –
TWITTER, INC.,
Defendant-Appellee.
––––––––––––––––––––––––––––––
(For Continuation of Caption See Inside Cover)
On Appeal from the United States District Court for
the Northern District of California in Nos. 5:18-cv-04523-LHK,
5:18-cv-06054-LHK, 5:18-cv-06177-LHK and 5:18-cv-06217-LHK
REPLY BRIEF FOR PLAINTIFF-APPELLANT
KEVIN N. MALEK
MALEK MOSS PLLC
340 Madison Avenue, 19th Floor
New York, New York 10173
(212) 812-1491
kevin.malek@malekmoss.com
Counsel for Plaintiff-Appellant
September 9, 2019
COUNSEL PRESS, LLC (888) 277-3259
VOIP-PAL.COM, INC.,
Plaintiff-Appellant,
– v. –
CELLCO PARTNERSHIP, dba Verizon Wireless Services LLC,
Defendant-Appellee.
––––––––––––––––––––––––––––––
VOIP-PAL.COM, INC.,
Plaintiff-Appellant,
– v. –
AT&T CORP.,
Defendant-Appellee.
––––––––––––––––––––––––––––––
VOIP-PAL.COM, INC.,
Plaintiff-Appellant,
– v. –
APPLE, INC.,
Defendant-Appellee.
CERTIFICATE OF INTEREST
Counsel for the Appellant, VoIP-Pal.com, Inc., certifies the following:
1. The full name of every party or amicus represented by me is:
VoIP-Pal.com, Inc.
2. The name of the real party in interest (if the party names in the caption is not
the real party in interest) represented by me is:
None
3. All parent corporations and any publicly held companies that own 10 percent
or more of the stock of the party or amicus curiae represented by me are:
None
4. The names of all law firms and the partners or associates that appeared for
the party or amicus now represented by me in the trial court or agency or are
expected to appear in this court are:
Kevin N. Malek, Malek Moss PLLC
David Kaminski and Grace Felipe of Carlson & Messer LLP, Los Angeles,
California
Kurt Bonds and Adam Knecht of Alverson Taylor Morteson and Sanders
LLP, Las Vegas, Nevada
5. The title and number of any case known to counsel to be pending in this or
any other court or agency that will directly affect or be directly affected by
this court’s decision in the pending appeal.
Apple Inc. v. Voip-Pal.com, Inc., Appeal No. 18-1456, U.S. Court of
Appeals for the Federal Circuit
/s/ Kevin N. Malek
Kevin N. Malek
Counsel for Appellant
i
TABLE OF CONTENTS
ARGUMENT……………………………………………………………………....1
I. At Step One, The Claims Are To A Patent-Eligible Improvement
to a Technological Communication Routing Process And System……..1
A. The Claimed Invention Is Fundamentally Different
from Prior-Art Methods of Routing Phone Calls……………….……1
B. Defendants’ Arguments Ignore and Misconstrue
What Is Actually Claimed…………………………………….……..2
C. Case Law Also Demonstrates That the Claims Are Not
Abstract At Step One…………………………………………………9
II. The Asserted Claims Are Eligible Under Alice/Mayo Step Two………….…15
A. The Claims Are Eligible At Step Two Because They
Claim an Patentable “Ordered Combination” That Is Inventive…….17
B. The Asserted Claims Contain Unconventional Inventive Concepts…24
III. The District Court’s Decision Was Premature……………………………...27
A. What Was “Well-Understood, Routine and Conventional”
Remains In Dispute………………………………………………….28
B. There Are Unresolved Factual Disputes Affecting Claim
Construction…………………………………………………………28
CONCLUSION……………………………………………………………………30
ii
TABLE OF AUTHORITIES
Cases
Alice Corp. Pty. v. CLS Bank Int'l, 573 U.S. 208 (2014) ................................ passim
Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288 (Fed. Cir. 2016).......7
Ameranth, Inc. v. Genesis Gaming Solutions, Inc., No. 11-00189-AG, 2014 U.S.
Dist. LEXIS 175600 (C.D. Cal. Nov. 12, 2014)...................................................17
Aristocrat Technologies Australia Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328
(Fed. Cir. 2008).....................................................................................................29
Bascom Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed.
Cir. 2016)................................................................................................... 7, 22, 26
Bilski v. Kappos, 561 U.S. 593 (2010).....................................................................12
BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281 (Fed. Cir. 2018) .......................7
buySafe, Inc. v. Google, Inc., 765 F.3d 1350 (Fed. Cir. 2014)......................... 11, 12
Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972 (9th
Cir. 2007)..............................................................................................................16
Content Extraction & Transmission LLC v. Wells Fargo Bank, 792 F.3d 1343
(Fed. Cir. 2014).......................................................................................................7
Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356 (Fed. Cir.
2018) .......................................................................................................................6
Cox Commc'ns, Inc. v. Sprint Commc'n Co. LP, 838 F.3d 1224 (Fed. Cir. 2016)....8
DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014).............10
Diamond v. Diehr, 450 U.S.175 (1981).............................................................. 3, 12
iii
Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016)............ 6, 11
Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016). ..................... 7, 24
FairWarning IP, LLC v. Iatric Systems, Inc., 839 F.3d 108 (Fed. Cir. 2016)...........6
Free Stream Media Corp. v. Alphonso Inc., No. 17-cv-02107-RS, 2018 WL
7348855 (N.D. Cal., Jan. 12, 2018)........................................................................9
Genband US LLC v. Metaswitch Networks Corp., No. 2:14-cv-33-JRG-RSP, 2016
U.S. Dist. LEXIS 37946 (E.D. Tex. Jan. 6, 2016)................................................24
In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607 (Fed. Cir. 2016)....................6
Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332 (Fed. Cir.
2017) .......................................................................................................................7
Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307 (Fed. Cir. 2016).....5
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418-19 (2007).....................................2
Mastermine Software, Inc. v. Microsoft Corp., 874 F.3d 1307 (Fed. Cir. 2017)......9
Mayo Collaborative Services v. Prometheus Labs, Inc., 566 U.S. 66 (2012).. 10, 12
McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016)
.............................................................................................................................6, 7
Microprocessor Enhancement Corp. v. Tex. Instruments Inc., 520 F.3d 1367 (Fed.
Cir. 2008)................................................................................................................8
MyMail, Ltd. v. ooVoo, LLC, No. 18-1758, 2019 WL 3850614 (Fed. Cir. Aug. 16,
2019) .....................................................................................................................29
Natural Alternatives International, Inc. v. Creative Compounds, LLC, 918 F.3d
1338 (Fed. Cir. 2019)............................................................................................28
iv
SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161 (Fed. Cir. 2018)............................6
Trading Techs. Int'l, Inc., 675 F. App'x 1001 (Fed. Cir. 2017).................................7
Two-Way Media Ltd. v. Comcast Cable Communications,LLC, 874 F.3d 1329
(Fed. Cir. 2017).....................................................................................................20
Two-Way Media. Ltd. v. Comcast Cable Communications, LLC, 874 F.3d 1329
(Fed. Cir. 2017).............................................................................................. 18, 19
Uniloc USA Inc. v. LG Electronics, Case No. 18-CV-06738-LHK, Dkt. No. 86
(N.D. Cal. April 9, 2019)......................................................................................21
Univ. of Fla. Research Found., Inc. v. Gen. Elec. Co., 916 F.3d 1363 (Fed. Cir.
2019) .......................................................................................................................7
Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253 (Fed. Cir. 2017) ..................9
West View Research, LLC v. Audi AG, 685 F App’x 923 (Fed. Cir. 2017) ..............6
Statutes
35 U.S.C. § 101................................................................................................ passim
35 U.S.C. § 112..........................................................................................................9
1
ARGUMENT
I. At Step One, The Claims Are To A Patent-Eligible Improvement to a
Technological Communication Routing Process And System
Under Alice, a claim is not an unpatentable abstract idea if it “improve[s] an
existing technological process.” Alice Corp. Pty. v. CLS Bank Int'l, 573 U.S. 208,
222 (2014). That precisely describes the inventions claimed in the Patents-in-Suit:
The inventions allow a computer to establish a phone call, message or video
communication to endpoints in two distinct networks, in a user-customized manner,
without the need for the user’s decision-making and judgment. See Br.1 13-14.
A. The Claimed Invention Is Fundamentally Different from Prior-Art
Methods of Routing Phone Calls
Defendants focus on the decision-making of an operator, in isolation, without
any evidence of record that operators acted in the same manner as the claimed
inventions. Nor did prior art PSTN nodes or PBX switches function in the manner
of the asserted claims. VoIP-Pal explained those prior-art processes in its Opening
Brief (Br. 5-7). Defendants do not challenge the accuracy of that description. But
they urge that the patented methods merely automate prior-art practices. Def. Br.2
14. Not so. Like “most, if not all” inventions, the claimed invention utilizes certain
1“Br” refers to VoIP-Pal’s Corrected Opening Brief.
2 “Def. Br.” refers to Defendants’ Joint Responsive Brief For Defendants-Appellees.
2
prior-art “building blocks.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418-19
(2007). The claimed processes and systems expand the ability of communication
systems and computers to provide customized, user-specific access to distinct
communication networks thereby improving a technological process. APPX001315-
001317; see Alice, 573 U.S. 208, 225.
B. Defendants’ Arguments Ignore and Misconstrue What Is Actually
Claimed
Defendants correctly assert that it is the claims that matter to the Section 101
analysis. Def. Br. 18. But their arguments ignore or affirmatively misconstrue the
text of the claims. Properly read, the claims are neither directed to, nor fail to add
sufficiently concrete context to, an abstract idea.
1. The Claims Are Directed to Facilitating Phone Calls and
Messaging, Not Mere Data Processing.
Invoking a now-commonplace attack on software patents, Defendants urge
that the patents claim no more than information processing. Def. Br. 20-24.
Defendants’ arguments, however, ignore virtually all of the claims’ steps and their
specific requirements.
The asserted claims recite a highly technical process with defined
technological structure. For example, the preamble of Claim 1 of the ‘815 Patent
makes clear that the patents are not directed to “mere data transfer.” Claim 1 of the
‘815 Patent recites a “process for operating a call routing controller to facilitate
3
communication between callers and callees in a system comprising a plurality of
nodes with which callers and callees are associated.” APPX0000167 (‘815 Patent)
36:14-39. It is not a mere process for transferring data as Defendants contend.
Moreover, the process of Claim 1 must be in response to “initiation of a call.”
APPX000167 (‘815 Patent) 36:14-38. And the claim clearly requires that the
claimed process will result in the programming of a call controller in a manner that
identifies a physical gateway on the public network or a physical address on the
private network that is associated with the “callee” and to which the call will be
routed. Br. 16-17 (quoting ‘815 Patent). That is, the claims require a tangible
output— an improved call routing controller, process, and technology providing
customized, user-specific access to call routing integrated to the respective
infrastructures of two distinct types of communication networks—a “public
network” (e.g., PSTN) and a “private network” (e.g., VoIP). Id.
Defendants’ assertion (Def. Br. 21) that the patents merely “collect”
“recognize” and “store” data reads those limitations out of the claims, focusing
solely on the intermediate steps of locating a caller profile and classifying the call
itself. But the Supreme Court has rejected that type of analysis: When determining
patent-eligibility “under §101, the[] claims must be considered as a whole.”
Diamond v. Diehr, 450 U.S.175, 188 (1981) (emphasis added); see also Alice, 134
S. Ct. at 2355. The question is not whether one step is “patentable in isolation.”
4
Diehr, 450 U.S. at 188. It is whether the entire claimed “process” is patent-eligible.
Id. Defendants cannot ignore the claim limitations that contradict their position.
Indeed, Defendants argument that the claims are limited to mere information
processing defies not only the preambles of the asserted claims, but also the body of
the claims themselves. As noted in VoIP-Pal’s Opening Brief, the claims require the
initiation of a call and the subsequent programming of a call routing controller in
order to successfully route the call to a private or a public network. APPX000167
(‘815 Patent) 36:14-39. Disembodied “information” has no “call” to “classify” or
“call controller” to program. Rather, the patents make clear that the claimed
“classification” serves a higher end — the routing of the call to a physical destination
on a public or a private network. APPX000167 (‘815 Patent) 36:14-39; see also Br.
48-50. Indeed, Defendants concede this point elsewhere in their brief. Def. Br. at 38-
39; APPX000167 (‘815 Patent) 36:14-38; see also APPX000234 (‘005 Patent)
43:41-65 (claim 74).
The claims require much more than information processing, or the mere act
of “processing” information. As the District Court found:
In general, the asserted claims of the Patents relate to the process of
routing calls (either voice or video) between a caller and a callee, in
which calls are classified as either public network calls or private
network calls.1 ’815 Patent at 1:50-54. More specifically, the process
of routing the call involves a computer “super node” routing a call
based on “identifiers” associated with both the caller and the callee.
APPX000008-000010 (District Court Order) (internal citations omitted).
5
Defendants continue their oversimplification that the claims merely “involve
routing communications based on information about the participants.” See Def. Br.
19. Based on this mischaracterization of the claims, Defendants contend that the
claims are ineligible at Step One because “routing data is an abstract idea,” relying
on this Court’s decision in Intellectual Ventures I LLC. Id. (citing Intellectual
Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016)).
Foremost, Defendants reliance on Intellectual Ventures I LLC is misplaced
and only serves to highlight the flaw in Defendants’ reasoning. The claims that this
Court found ineligible in Intellectual Ventures I LLC are entirely devoid of any
technological structure and relate to no more than mere characterization of data files.
For example, in Intellectual Ventures I LLC, this Court examined claim 9 of the ‘050
Patent there, which was directed to “[a] method for identifying characteristics of data
files, comprising” receiving, determining and outputting information, without
anything more. See Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307,
1313 (Fed. Cir. 2016) (citing ‘050 patent, col. 8, ll. 13–26) (emphasis added).
Accordingly, claim 9 of the ‘050 Patent was expressly directed to nothing more than
a “method for identifying characteristics of data files.” Id. at 1313-1317.
Moreover, this Court has held that claims covering organizing or analyzing
information can be eligible when directed to something more. See, e.g., McRO, Inc.
v. Bandai Namco Games America Inc., 837 F.3d 1299, 1313 – 1314, 1316 (Fed. Cir.
6
2016); see also Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356,
1362-63 (Fed. Cir. 2018) (finding claims eligible under § 101 notwithstanding that
the claims included the generic “idea of summarizing information”). Indeed, the
cases that Defendants rely upon are entirely distinguishable because the claims (in
those cases) were limited to the collection, processing and display of information
without anything more and without anything inventive. See Elec. Power Grp., LLC
v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (finding claims to information
gathering to be abstract because the claims did not use “any particular assertedly
inventive technology for performing those functions”); see also West View
Research, LLC v. Audi AG, 685 F App’x 923, 926 (Fed. Cir. 2017) (unpublished)
(holding that claims to collecting, analyzing, retrieving and processing information
were ineligible where they did not go beyond “the abstract idea of collecting and
analyzing information”); see also FairWarning IP, LLC v. Iatric Systems, Inc., 839
F.3d 1089, 1093 (Fed. Cir. 2016) (agreeing that the invention was “drawn to the
concept of analyzing records [and data] of human activity to detect suspicious
behavior” without anything more (emphasis added)); SAP Am., Inc. v. InvestPic,
LLC, 898 F.3d 1161, 1167-68 (Fed. Cir. 2018); In re TLI Commc’ns LLC Patent
Litig., 823 F.3d 607, 611 (Fed. Cir. 2016) (claims directed to nothing more than “the
abstract idea of classifying and storing digital images in an organized manner”
(emphasis added)). In other words, the cases that Defendants cite relate solely to the
7
steps of processing and displaying information. See also, e.g., Content Extraction &
Transmission LLC v. Wells Fargo Bank, 792 F.3d 1343 at 1369-70 (Fed. Cir. 2014)
(requiring no more than collecting information about a user for display on a website);
Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed.
Cir. 2017) (requiring no more than collecting, displaying, and manipulating data in
response to inputs); BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1286 (Fed.
Cir. 2018) (requiring no more than collecting input from the user and displaying
information); Univ. of Fla. Research Found., Inc. v. Gen. Elec. Co., 916 F.3d 1363,
1368 (Fed. Cir. 2019) (requiring no more than collecting, analyzing, manipulating
and displaying data). Moreover, the fact that a claim may contain generic computer
components is not dispositive of eligibility. See e.g. Amdocs (Israel) Ltd. v. Openet
Telecom, Inc., 841 F.3d 1288, 1306 (Fed. Cir. 2016); Trading Techs. Int'l, Inc., 675
F. App'x 1001, 1004 (Fed. Cir. 2017) (affirming eligibility where claims recited
more than setting, displaying, and selecting data using conventional computers and
the internet); see also Bascom Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827
F.3d 1341, 1350 (Fed. Cir. 2016); McRO, Inc. v. Bandai Namco Games Am. Inc.,
837 F.3d 1299, 1314–15 (Fed. Cir. 2016); Enfish, LLC v. Microsoft Corp., 822 F.3d
1327, 1336 (Fed. Cir. 2016).
In contrast, the asserted claims here are directed to much more: a “process for
operating a call routing controller to facilitate communication between callers and
8
callees in a system comprising a plurality of nodes with which callers and callees are
associated.” See APPX000010 (District Court Order) (quoting preamble of claim 1
of the ‘815 Patent). Moreover, Claim 1 of the ‘815 Patent requires providing an
improved call routing controller, in communication with a call controller, that
enables a private communication network (e.g., a VoIP system) to better interoperate
with a traditional public communications network (e.g., the public switched
telephone network or “PSTN”), to reach an intended destination in either the private
or public network. APPX000167 (‘815 Patent) 36:14-39.
2. Defendants’ Arguments That The Claims Are Abstract At Step
One Because They Include Functional Elements Is Incorrect.
Defendants persistently argue that the asserted claims are abstract because
they use generic or functional language. This is clearly misguided. It is wholly
appropriate to use functional language to limit claims. In fact, in other contexts, this
Court, as well as others, have held that both apparatus and method/process claims
can be written using functional language. See, e.g., Microprocessor Enhancement
Corp. v. Tex. Instruments Inc., 520 F.3d 1367, 1375 (Fed. Cir. 2008) (“[A]pparatus
claims are not necessarily indefinite for using functional language.”); see also Cox
Commc'ns, Inc. v. Sprint Commc'n Co. LP, 838 F.3d 1224, 1232 (Fed. Cir. 2016)
(“here, functional language promotes definiteness….All of the asserted claims are
method claims, so it makes sense to define the inventive method as a series of
9
functions.”); see also Mastermine Software, Inc. v. Microsoft Corp., 874 F.3d 1307,
1313 (Fed. Cir. 2017).
In arguing that that the claims are ineligible because they are generic or
functional, Defendants improperly conflate other issues that are not relevant to the
35 U.S.C. § 101 question. “[W]hether a patent specification teaches an ordinarily
skilled artisan how to implement the claimed invention presents an enablement issue
under 35 U.S.C. § 112, not an eligibility issue under § 101.” Visual Memory LLC v.
NVIDIA Corp., 867 F.3d 1253, 1261 (Fed. Cir. 2017); see also Free Stream Media
Corp. v. Alphonso Inc., No. 17-cv-02107-RS, 2018 WL 7348855 at *4 (N.D. Cal.,
Jan. 12, 2018) (“To the extent … that the patent does not adequately explain how
the barriers are overcome when the described system and methods are employed,
such issues do not support a finding of patent ineligibility under Section 101.”).
Accordingly, Defendants’ arguments that the claims must be ineligible because they
are generic or functional fails.
C. Case Law Also Demonstrates That the Claims Are Not Abstract At
Step One.
Once the claims and prior art are properly understood, Defendants’ arguments
under the two-step Alice/Mayo framework and Alice’s “technological improvement”
standard collapse. See Br. 19-36. The claims are “directed to” a specific and concrete
technological process, not an abstract idea. Alice, 573 U.S. 208, 217; see Br. 36-42.
And the claim limitations clearly add enough to qualify as patent-eligible processes
10
and systems. Mayo Collaborative Services v. Prometheus Labs, Inc., 566 U.S. 66,
77 (2012); see Br. 24-25. The patents do not monopolize “basic tools of scientific
and technological work,” Alice, 573 U.S. 208, 216. There are myriad non-infringing
ways to perform computer-based communication and methods to route the same. See
Br. 24-25.
These are not claims about “business methods”—ideas about “fundamental
economic practice[s]” and “organizing human activity”—which the Supreme Court
and this Court have deemed abstract ideas under §101. Alice, 573 U.S. 208, 218-19;
see Br. 35-41. There is a huge difference between the “financial solutions” in those
cases and the “communication and routing solution” at issue here. Def. Br. 19-25.
See Alice, 573 U.S. 208, 218-19; DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d
1245, 1257 (Fed. Cir. 2014). The novel communication method here, by contrast, is
technological, not entrepreneurial.
1. Defendants Contention That Generic Computer Elements Cannot
Save a Claim is Incorrect.
Defendants’ own application of Alice to the facts is entirely incorrect. For
example, in arguing that the claims are abstract at Step One, Defendants assert that
“[c]laims that ‘merely require generic computer implementation, fail to transform
[an] abstract idea into a patent-eligible invention.’” See Def. Br. (in their Alice Step
One section) at 24 (citing Alice, 573 U.S. at 221). But whether the implementation
of the abstract idea on a computer is enough to “transform the abstract idea” into a patent-eligible invention is not a proper inquiry at Step One. In fact, the passage
from Alice upon which Defendants rely for this faulty proposition is clearly part of
the Supreme Court’s Step Two inquiry in Alice. Indeed, the complete excerpt from
Alice, relied upon the Defendants makes this point clear:
Turning to the second step of Mayo's framework: The method
claims, which merely require generic computer implementation, fail to
transform that abstract idea into a patent-eligible invention.
Alice, 573 U.S. at 211 (emphasis added). In a likely attempt to further confuse the
issue, Defendants compound the problem they created by citing additional Step Two
precedent from this Court for the same illogical Step One proposition. See Def. Br.
24 (citing buySafe, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014); Elec.
Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1355 (Fed. Cir. 2016)). However,
Defendants’ reliance on buySafe and Elec. Power Grp. are inapposite because the
cited passages are clearly directed at Step Two’s inquiry. See, e.g., buySafe, Inc. v.
Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014); Elec. Power Grp., 830 F.3d at
1355. In Elec. Power Grp., this Court explained that the issue Defendants’ raise in
their Step One challenge is actually a part of the Step Two challenge. Id.
Despite what Defendants’ argue, the question of whether implementation on
a computer is sufficient to transform an abstract idea into a patent-eligible
invention is clearly a Step Two question. See Alice, 573 U.S. 208, at 222; Mayo, 566
12
U.S. 66, at 71; Bilski v. Kappos, 561 U.S. 593, 610–11 (2010); Diehr, 450 U.S. 175,
at 191 (1981); buySAFE, Inc., 765 F.3d 1350, at 1355.
Defendants also argue throughout their brief that the specific and tangible
elements of the claimed inventions, such as the “call routing controller” cannot save
the invention at Step One because the “recited ‘controllers’ [are not] a specific device
particularized in any way to the claimed method.” See Def. Br. p. 25 (citing
APPX000156 (‘815 Patent) 13:10-24). Significantly, Defendants do not, because
they cannot, seriously dispute that the claims are directed to tangible computer
components. Instead, Defendants argue, improperly, that these tangible computer
components do not save the claims at Step One because they are generic:
[t]he controllers have generic computer components, such as
processors, memory, and input/output ports – components that all
computers have.
See Def. Br. p. 25. Fatally, as discussed herein, that is not the proper inquiry at Step
One. In fact, the presence of these admittedly tangible components can be the basis
for finding claims not abstract, because such tangible and concrete limitations are
technological and can be said to add more to the claims – as the Supreme Court made
clear in Alice. See APPX000156 (‘815 Patent) 13:10-14; APPX000158 (‘815 Patent)
17:16-37; APPX000122 (‘815 Patent) Fig. 7; APPX000157 (‘815 Patent) 15:16-
16:5; APPX000120 (‘815 Patent) Fig. 4). Defendants have conceded this point in
their argument. They instead argue, wrongly, that the presence of generic computer
13
elements necessarily renders the claims abstract at Step One. That is not true.
Processors, memory chips and input/output ports are tangible elements. The fact that
they exist in every computer does not necessarily mean that a claim using those
elements must be abstract. At Step One, the question is whether these tangible
computer elements add more to the abstract idea covered by the claims. Here they
do. These elements not only add more, but they are actually required for the
invention. The inventions cannot function without them. That must be contrasted
with the issue the Supreme Court faced in Alice, where the patentee held claim over
an invention that did not require the tangible computer elements to function, but
rather claimed an abstract idea that was completely operable without the computer
elements. See Alice, 573 U.S. 208, 225. Here, the computer elements are actually
necessary for the invention to work.
2. Defendants’ Contentions Regarding Analogous Long-Standing
Practices Are Unsupported and Unsupportable.
Defendants also contend that the claims are analogous to long-standing
practices of switchboard operators – their so-called operator analogy. Def. Br. 26-
28. Defendants’ sole support for this proposition is speculation drawn from the
District Court’s decision and a series of unsupported attorney arguments. Defendants
offer no explanation for how the citations support their position—and with reason.
Defendants start off by mischaracterizing the District Court’s decision suggesting
that “the district court correctly recognized, routing a call using information about
14
the caller and callee is analogous to the function of a switchboard operator.” Def.
Br. 27 (citing APPX000031) (emphasis added). Nowhere in the record does the
District Court conclude that switchboard operators routed calls using “information
about the caller.” At most, the District Court found that:
telephone operators might have used a caller’s identity to properly
attribute toll charges, or to record the caller’s number for a call back
in case the connection was lost.
APPX000031 (emphasis added). Attributing toll charges or recording a number for
call back purposes is not routing. Accordingly, Defendants suggestion that the
asserted claims are embodied in long-standing operator switch-boarding should be
rejected because it is just untrue. That is also evident in the fact that Defendants do
not cite to a single source for the propositions espoused in their Brief in support of
this so-called operator analogy. Compare Def. Br. p. 27.
Significantly, as VoIP-Pal pointed out in its Opening Brief, the District Court
did not even analogize the asserted claims to any long-standing practice of record.
Instead, the District Court analogized the asserted claims to a “long-standing
practice” found in an entirely separate judicial decision on an entirely different
invention. Br. 21-23; see also APPX000031. Defendants say nothing in response.
To be sure, switchboard operators existed. But Defendants have not produced
any evidence of any analogous process or system. That is because none exists.
15
Defendants’ reliance on citations without evidence should itself be fatal. See
SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006).
II. The Asserted Claims Are Eligible Under Alice/Mayo Step Two
Under step two of Alice, the asserted claims are patentable because the
“ordered combination” of claimed elements contains a patent-eligible application
(i.e., “inventive concept”) satisfying § 101. Br. 45. In particular, the claims provide
an improved call routing controller, process, and technology providing customized,
user-specific access to call routing integrated to the respective infrastructures of two
distinct types of communication networks—a “public network” (e.g., PSTN) and a
“private network” (e.g., VoIP). APPX001335-000040 (Third Amended Complaint)
at ¶¶ 7-15.
Neither the District Court, nor the Defendants, have properly analyzed
whether the additional features of the claims (i.e., those going beyond the alleged
“abstract idea” in step one) are integrated so as to add “something more” to the
claims “as a whole” as is required by Alice. Instead, the District Court and
Defendants stripped out claim elements that are allegedly “generic” or old to
recharacterize the “ordered combination.” The District Court relied on a technically
invalid analogy to patent claims for a different technology, found ineligible in
another case, to find the recharacterized “ordered combination” conventional based on a single consideration: “ordering of steps”. Br. 50. This ignores the inventive
concept captured by the asserted claims as well as VoIP-Pal’s explanation of how
all the recited claim elements are integrated into the claim “as a whole.”
APPX001340 (Third Amended Complaint) at ¶ 16. Separately, the District Court
drew erroneous conclusions about individual claim elements, yet declined to
perform the claim constructions necessary to understanding the basic character of
the claims. APPX000034-000036.
Defendants do not dispute VoIP-Pal’s application of the Alice/Mayo Step Two
framework. Nevertheless, Defendants propagate the same misunderstandings
reached by the District Court by reductionistic recharacterization contrary to
Supreme Court precedent. Separately, Defendants absurdly maintain that
“collecting,” “analyzing” and “utilizing” (“storing” or “sending”) data limitations do
not ipso facto contain an “inventive concept”—which would categorically ban all
computer-based (software) inventions. Finally, Defendants assert—in the absence
of any claim construction by the District Court—that user-specific call-handling and
routing transparency is “not embodied by [the] claims in any way,” ignoring VoipPal’s arguments and evidence to the contrary, while mischaracterizing the concepts
themselves. None of this is appropriate at the Rule 12(b)(6) stage where VoIP-Pal
deserves all inferences in its favor. Cedars-Sinai Med. Ctr. v. Nat’l League of
Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007).
17
A. The Claims Are Eligible At Step Two Because They Claim an
Patentable “Ordered Combination” That Is Inventive
Step Two requires consideration of the “additional elements” of a claim (i.e.,
those that are go beyond the “abstract idea” identified in step one) to determine
whether they integrate the abstract idea into a patent-eligible application. Br. at 46-
48. Such analysis requires consideration of the claim “as a whole”. Id. (citing Alice,
Mayo and Diehr). Indeed, this Court has warned against oversimplifying the claims
or ignoring claim elements which, in isolation, appear abstract, during §101 analysis.
Br. at 49 (citing Enfish and McRO). Any claim elements that “could be omitted while
leaving intact” the ineligible abstract idea from “step one”, are precisely the
“additional elements” that the Supreme Court mandated should be considered under
“step two”. See Ameranth, Inc. v. Genesis Gaming Solutions, Inc., No. 11-00189-
AG, 2014 U.S. Dist. LEXIS 175600, *18 (C.D. Cal. Nov. 12, 2014).
3
Yet the District Court’s analysis of the “ordered combination” was cursory at
best and did not follow the above precedents. APPX000037 (District Court Order).
Rather, the district court postulated the functional equivalence of paraphrased
fragments of Voip-Pal’s claims to unrelated claim language drawn to a completely
3 Defendants assert that Voip-Pal provides no argument regarding preemption. Def.
Br. 54-55. But applying Ameranth here, “one could implement many different
[methods of “routing a call based on characteristics of the caller/callee”] that do not
infringe the claims”. Ameranth at *17; compare Br. 48-51. In prosecution, the
Patents-In-Suit distinguished over numerous references. And Voip-Pal has prevailed
in eight inter partes reviews. APPX001305, Br. 2. Clearly, many routing methods
do not practice the asserted claims, thereby mooting Alice’s preemption concerns.
18
different technology, namely, the steps of “processing”, “routing” and “controlling”
in claims held ineligible in Two-Way Media. Ltd. v. Comcast Cable Communications,
LLC, 874 F.3d 1329 (Fed. Cir. 2017). Consequently, numerous “additional
elements”—i.e., limitations not necessitated by the court’s “abstract idea” in step
one—were stripped out. Br. 49-50. Unsurprisingly, the District Court did not
analyze whether these “additional elements” integrated the “abstract idea” of Step
One into a patent-eligible application in the process “as a whole,” as required by the
precedents.
Defendants justify the cursory or non-existent “ordered combination” analysis
by arguing that “Step Two” requires a District Court to “cut through the verbiage” of
a “large number of words” to determine “basic operations”. Def. Br. 53. But
Defendants do not cite any authority for that departure from Alice, Mayo and Diehr
or any post-Alice precedent. Defendants say “there is nothing wrong with an
approach that characterizes the ordered combination… by looking [only] at its
operative terms”. Id. at 54. No case law is cited differentiating “operative” from
“inoperative” terms. In claim 1, Defendants identify only five words as “operative”
without explaining why the rest could not conceivably contribute to an “inventive
concept”. And Defendants fail to rebut Voip-Pal’s specific examples of “operative”
“additional elements” eliminated from the District Court’s step two analysis. Br. 49-
51.
19
Defendants also argue that VoIP-Pal’s challenge to the “ordered combination”
analysis is unwarranted because VoIP-Pal “did not raise this challenge in opposition
to the motion to dismiss”. Def. Br. 53. This argument fails for multiple reasons. First,
the District Court did not follow the Supreme Court framework for a proper Step
Two ordered combination analysis. Br. 46-48. That is a legal error independent of
any error stemming from reliance on Two-Way Media. Second, the erroneous ordered
combination analysis adopted by the District Court was not advocated in Defendants’
Motion to Dismiss. Defendants cited Two-Way Media as an example that an
“ordering of steps” may be found “conventional,” but never attempted to equate
specific steps from Two-Way Media to corresponding steps in VoIP-Pal’s claims.
Compare APPX000942 (Motion to Dismiss) at 23; APPX000037 (District Court
Order) 33 (“First, data is processed by ‘locating a caller dialing profile’… Then,
data is routed by classifying the call…[etc.]” [emphasis in original]). Thus, VoIP had
no opportunity to challenge an error made—for the first time—in the District Court’s
decision.
Defendants now assert (1) the District Court analyzed the ordered combination
“exactly” like this Court in Two-Way Media; and (2) that “the two ordered
combinations were indistinguishable”. Def. Br. 54. Both contentions are false.
The Two-Way Media Court never relied on an element-by-element comparison
with claims taken from a technologically-unrelated patent. Rather, the Two-Way
20
Media Court analyzed specific claim terms after claim construction had been
completed, unlike here. Two-Way Media Ltd. v. Comcast Cable Communications,
LLC, 874 F.3d 1329, 1335, 1338 (Fed. Cir. 2017). Furthermore, the District Court’s
analogy to Two-Way Media is also technically invalid and dangerously facile. The
District Court unwittingly redefines the terms “processing”, “routing” and
“controlling” from their original meaning in Two-Way Media. APPX000037 (District
Court Decision). In Two-Way Media, “processing” appears to mean converting
audio/visual information into streams of digital packets. See Two-Way Media 874
F.3d 1329 at 1334-1335 (compare “processing” step in claim 29 of the ‘622 patent
with equivalent “converting” step in claim 1 of the ‘187 patent). But converting
audio/visual information into packets is completely different and non-analogous to
“locating a caller dialing profile” and matching profile attributes with a callee
identifier in the ‘815 Patent. See APPX000037 (District Court Decision). Moreover,
“routing” in Two-Way Media refers to sending the aforesaid audio/visual packet
stream to users. See Two-Way Media at 1334-1335. This act is completely different
from a classifying step performed by a “routing controller” as in Claim 1 of the ‘815
Patent to setup a call before any packet stream is established between a caller and
callee. The Court’s conclusion that Claim 1 “discloses a similar structure to the TwoWay Media claim” (APPX000037 and APPX000046 (District Court Decisio
commits technical error and departs from Alice’s “Step Two” mandate,
unconstrained by claim construction or expert evidence.4
Moreover, the District Court’s finding “elsewhere” that “no individual step
was transformative” (Def. Br. 54) is unavailing because (1) analysis of the “ordered
combination” “as a whole” is supposed to be a distinct, meaningful enquiry for which
review of dissected individual steps cannot substitute (since inventive concepts also
arise from the cooperation of claim elements); and (2) moreover, the Court’s analysis
of individual elements is incomplete and deficient. Br. 55-57.
Defendants also present an alternate theory for why the “ordered combination”
lacks an inventive concept, namely, that data is “collected”, “analyzed” and then
“utilized” (i.e., “stored or sent”). See Def. Br. 15, 35-36, 36. This theory is no less
reductionistic or inaccurate than the District Court’s distillation of the “ordered
combination” into three words. Again, this turns step two into a farce, rather than a
meaningful inquiry. If claims which involve collecting, analyzing and utilizing
(storing or sending) data, ipso facto contain no “inventive concepts”—Step Two is a
foregone conclusion or even a categorical ban on computer-implemented (software)
routing inventions. But this violates statute (§101 does not exclude routing
4 The same District Court invalidated another patent—for a completely different
communication technology—by relying on the same analogy. See Uniloc USA Inc.
v. LG Electronics, Case No. 18-CV-06738-LHK, Dkt. No. 86 (N.D. Cal. April 9,
2019) (Bluetooth claims held ineligible because they allegedly involved
“processing”, “routing” and “controlling” as in Two-Way Media).
22
inventions). Under Defendants’ theory, almost any computerized method arguably
lacks an “inventive concept”, e.g., BASCOM’s patent-eligible server “collected”,
“analyzed” and “utilized” data. BASCOM Global Internet Servs. V. AT&T Mobility,
827 F.3d 1341, 1345 (Fed. Cir. 2016).
And contrary to Defendants, the district court’s analysis of the individual claim
limitations was also incomplete and unsupported. Def. Br. 51-53.
(1) Defendants argue that the district court did not misunderstand the claims
or specification by alleging the dialing profile comprises “identificatory attributes”
“left undefined in the claim and specification,” and accuses Voip-Pal of failing to
identify the relevant figures in the patent. Id. Actually, Voip-Pal’s opposition
referred to figures explaining the attributes (APPX001309); they were also
referenced in the Third Amended Complaint at ¶8. APPX001335-001336. More to
the point, the district court purports to interpret what the specification discloses—but
incorrectly states that attributes are left “undefined… in the specification,” which
suggests a misunderstanding. APPX000035 (District Court Decision). Separately,
Defendants’ defense of the district court confusing a caller identifier with a caller
profile (Br. 56, citing APPX000009 (District Court Decision)) is unavailing. Def. Br.
52. The District Court itself cited the ‘815 Patent at 2:8-25 as the basis for its
conclusion, which discloses comparing the callee identifier to various attributes
“associated with the caller dialing profile” (e.g., IDD, NDD, area code, length)—
23
none of which is a phone number, as alleged by Defendants. The District Court’s
confusion about the caller dialing profile is undeniable, which likely caused its
misunderstanding of the claims. Likewise, the District Court mischaracterizes the
patent specification as “fail[ing] to disclose user-specific calling”. See Def. Br. 12
(citing APPX000047 (District Court Decision)); compare APPX001308-001309
(VoIP-Pal’s Opposition Brief); APPX001030 (Third Amended Complaint) at ¶¶ 8,
14).
(2) Defendants assert that the district court’s analysis of matching was correct.
Def. Br. 52. But the District Court had no sound basis for determining the “matching”
process was not “inventive.” APPX000035-000036 (District Court Decision);
compare Br. 57 (citing DDR). The matching step is based on profile attributes from
a preceding step and also forms the basis for the subsequent “classifying” step. The
Court cites no evidence that this manner of matching could not be inventive.
(3) Voip-Pal criticized the court’s conclusion that the steps of “classifying”
and “producing a routing message” lacked an inventive concept based solely based
on the court’s inference that these steps are “performed on a generic computer”. See
Br. 55; APPX000036 (District Court Decision). Notably, Defendants provide no
defense of this non sequitur, which incorrectly assumes that software modules are
incapable of an inventive concept. See Def. Br. 51-53. Genband US LLC v.
Metaswitch Networks Corp., No. 2:14-cv-33-JRG-RSP, 2016 U.S. Dist. LEXIS
24
37946, *28 (E.D. Tex. Jan. 6, 2016) (whether components are implemented as
“hardware and/or software” does not change the Alice analysis); Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1335, 1339 (Fed. Cir. 2016).
B. The Asserted Claims Contain Unconventional Inventive Concepts
The claims contain inventive concepts, e.g., a non-generic arrangement of
elements providing user-customized access to call routing integrated to the
infrastructures of two distinct types of communication networks—e.g., a “public
network” (e.g., PSTN) and a “private network” (e.g., VoIP). See APPX001030-
001031 (Third Amended Complaint) at ¶¶7-16 (explaining unconventionality).
Voip-Pal’s victory in eight IPR Petitions also suggests this arrangement is
unconventional. Br. 2.
Defendants deny that the claims embody user-specific handling or routing
transparency though no claim construction has been performed. Def. Br. 48-51.
Further, Defendants’ description of these concepts is confused. Id.
Voip-Pal’s complaint explains at ¶12 that the caller dialing profile used to
process a call is “user-specific.” APPX001030-001032 (Third Amended Complaint).
The complaint gives an example of a call between users having different “profiles,”
each having user-specific “attributes” that customize that user’s calling experience.
Id. For example, two users could have two different, user-specific IDD attributes.
APPX001309 (VoIP-Pal’s Opposition) at FN6-7. When these attributes are matched
25
to a callee identifier, the system will determine whether a given call is international
differently for the two users. See APPX000124 (‘815 Patent) at Figure 8B (blocks
257-259). Defendants never deny that a “profile” is specific to a caller. But using
caller-specific profile “attributes” in call processing renders such processing callerspecific. For example, in claim 1 of the ’815 Patent, because the profile “attributes”
are necessarily user-specific, the “callee identifier” is “match[ed]” one or more times
in a user-specific way, thus subsequent classifying/routing steps are necessarily
performed in a user-specific way.5 Defendants bizarrely mischaracterize userspecific handling as obviating the need to dial country codes when placing an
international call. Def. Br. 48 (likewise at pp. 5, 14, 27, 48). No such feature exists,
nor did Voip-Pal say it did.6 Even from the example in footnote 6 (APPX001309), it
is apparent that the benefit is not “obviating” dialing a country code, but rather, that
the two callers can dial international calls in user-specific ways. (Other profile
attributes customize other aspects of the calling experience for each user.)
Defendants deny that user-customized processing is a patent-eligible benefit.
Def. Br. 50. However, Bascom found claims for Internet filtering at “with
customizable filtering features specific to each end user”—in lieu of a “one-size-fits-
5 See also APPX001313 (VoIP-Pal’s Opposition to Motion to Dismiss),
APPX001322 and APPX001324 (explanations of user-specific processing).
6 Defendants’ fundamental misunderstanding is astounding and would be dispelled
by studying Fig. 8B of the patent. Block 263 expects a E.164 compatible number,
which includes a country code, thus a user dials a country code for international
calls. See, e.g., APPX000159-000160 (‘815 Patent) 19:15-18, 19:63-67, 22:34-48.all filter””—unconventional and patent-eligible. Bascom Global Internet Servs., Inc.
v. AT&T Mobility, LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016). Likewise, the
challenged claims implement user-customized calling “versatile enough [to] be
adapted to many different users’ preferences” in a network-based routing controller.
Unlike prior art PSTN or PBX nodes, the invention was not limited to a “one-sizefits-all” manner of processing calls, but applied configurable, caller-specific profile
settings to process calls. See APPX001335-000038 (Third Amended Complaint) at
¶¶ 8, 12. Defendants fail to explain why such improved communication controllers
cannot involve an “inventive concept”.
Notably, the BASCOM claims did not recite, ipsissimis verbis, the inventive
concept of “customizable filtering features specific to each end user [on an ISP
server].” BASCOM at 1350 (emphasis added). Rather, the corresponding claim
language which gave rise to this inventive concept was, e.g.: “associating each said
network account to at least one filtering scheme…” See BASCOM at 1345 (‘606
patent). The BASCOM claim did not specify the exact filtering rules. That was not
the inventive concept; it was rather the customizability of the filtering, based on
associating each account with custom filtering schemes. This is similar to VoIP-Pal’s
claims, which associate each user profile with a user-specific set of calling attributes.
Defendants also distort the concept of routing transparently. Def. Br. 49. It is
not the automation of a manual step or a dialing convention. Rather, whether a
27
destination is routed using public or private networks is purposefully invisible to the
caller. From the caller’s point of view, public and private destinations are addressed
identically. The caller has no way to know or specify how a call is routed. This
reflects a difference in architecture and processing from prior systems, not whether
a step is manual or automated. See APPX001338-000039 (Third Amended
Complaint) at ¶14 (caller not aware that London destination is on the private
network). See APPX000167 (‘815 Patent) claim 1 (“callee identifier” is resolved by
the claimed method to either a “private network routing message” or “public network
routing message” based on caller attributes and network routing criteria).
Defendants’ argument that “the representative claims do not even require a call to be
routed” ignores that the recited “call controller” receives the routing message as a
request to establish a call. See, e.g., Def. Br. at 49; compare APPX000162-000163
(26:46-27:43). Defendants also conveniently ignore that claim 1 recites “facilitating
communication”, claim 54 recites “to establish a call” and claim 49 explicitly states
the “call controller” “effect[s] routing of the call”. Br. 50, FN8.
III. The District Court’s Decision Was Premature
Alternatively, the District Court’s conclusions were premature because the
following issues are disputed: (1) what was “well-understood, routine and
conventional”; (2) claim construction; and even (3) what the patent specification
discloses.
28
A. What Was “Well-Understood, Routine and Conventional” Is In
Dispute.
The District Court could not address Voip-Pal’s assertion that its inventive
concept was not “well-understood, routine or conventional”. See APPX001335-
000040 (Third Amended Complaint) at ¶¶7-16 and APPX001321-000022 (VoIPPal’s Opposition). Instead, the District Court fettered its analysis solely to evaluating
“ordering of steps” based on a technically invalid analogy. APPX000037 (District
Court Decision). The District Court declined to consider VoIP-Pal’s proffered
evidence of unconventionality from IPR proceedings. APPX001322, APPX001325-
001326 (VoIP-Pal’s Opposition Brief) at 21 n.16, 24-25 including Exhibit 4 (Dr.
Mangione-Smith Declaration). The District Court also concluded, without requiring
clear and convincing evidence, that the specification “admitted” that all claim
elements were conventional, which Voip-Pal strongly disputes. Br. 55-57. Natural
Alternatives International, Inc. v. Creative Compounds, LLC, 918 F.3d 1338, 1347
(Fed. Cir. 2019).
B. There Are Unresolved Factual Disputes Affecting Claim
Construction.
There remain unresolved factual disputes about claim construction.
Defendants’ blanket assertion that user-specific call handling is “not embodied by
29
VoIP-Pal’s claims in any way” (Def. Br. 50) does not engage VoIP-Pal’s arguments
to the contrary. MyMail, Ltd. v. ooVoo, LLC, No. 18-1758, 2019 WL 3850614 (Fed.
Cir. Aug. 16, 2019) (holding that a district court must resolve claim construction
disputes prior to §101 analysis at the Rule 12(c) or 12(b)(6) stage).
Additionally, the District Court declined to construe VoIP-Pal’s means-plusfunction claims (e.g., claim 28) as required by 35 U.S.C. §112. Br. 57-58.
Defendants justify the District Court’s inaction as based on its view that the routing
controller used “generic computer components”. Def. Br. 59-60 (citing APPX000033
(District Court Decision), ignoring that the specification discloses a detailed
algorithm transforming the computer into a “special purpose computer programmed
to perform the disclosed algorithm.” Aristocrat Technologies Australia Pty Ltd. v.
Int’l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008). Defendants falsely assert
that “VoIP-Pal did not identify the specific algorithm within the figures,” ignoring
Voip-Pal’s detailed identification of specific blocks in Figs. 8A-8D provided in its
opposition at footnote 13.7 APPX001010-000011. Similarly, the District Court’s
statement that the ‘815 Patent specification fails to provide “any details” of how the
7 Defendants’ accusation that VoIP-Pal did not say why claim 28 is non-abstract is
an attempt to impose a reverse onus on Voip-Pal. Def. Br. 59. Defendants carry the
burden of proving invalidity, yet failed to construe the means-plus-function claims.
Their de minimis comments about “generic computer components” (See Motion to
Dismiss at 10) fails to account for the non-generic programming these claims imply,
rendering defendants’ other §101 arguments inapplicable (e.g., telephone operators
never performed Figs. 8A-8D; the algorithm is indisputably user-specific; etc.)
30
invention achieves its results is incorrect (indeed, inexplicable) given VoIP-Pal’s
detailed explanations. See APPX000037 (District Court Decision), APPX000026;
compare APPX001315-001316 (VoIP-Pal’s Opposition Brief). It appears that
neither the District Court nor the Defendants reviewed the algorithmic steps
identified in footnote 13. Thus, the District Court falsely concluded that “the patent
specification fails to disclose user-specific calling,” and Defendants make manifestly
false assertions about how Voip-Pal’s system operated, e.g., the “user no longer
needed to dial a country code to make an international call” (Def. Br. 5, 14, 48, 60).
These errors highlight the need to construe all the claims prior to §101
analysis.
CONCLUSION
For all of the foregoing reasons, VoIP-Pal respectfully requests that this Court vacate
the District Court’s judgment in favor of Defendants and reverse the District Court’s
March 25, 2019 order dismissing these actions as to all Defendants. Dated: September 9, 2019 Respectfully submitted,
/s/ Kevin N. Malek
Kevin N. Malek
MALEK MOSS PLLC
340 Madison Avenue, FL 19
New York, New York 10173
Telephone: +1-212-812-1491
Fax: +1-561-910-4134
Email: kevin.malek@malekmoss.com
Attorneys for Appellant VoIP-Pal.com, Inc.
32
CERTIFICATE OF SERVICE
VoIP-Pal.com, Inc. v. Twitter, Inc., AT&T Corp., Cellco Partnership and Apple, Inc.
Nos. 2019-1808, - 1812, -1813, -1814.
I, Kevin N. Malek, being duly sworn according to law and being over the age of 18,
upon my oath depose and say that: On September 9, 2019, I electronically filed the
Brief for Appellant with the Clerk of Court using the CM/ECF System, which did
send notice of such filing to the following registered CM/ECF users:
Apple, Inc.Attorneys
Desmarais, John M. (jdesmarais@desmaraisllp.com)
Magic, Peter Curtis (pmagic@desmaraisllp.com)
Modi, Ameet (amodi@desmaraisllp.com)
Perry, Mark Andrew (mperry@gibsondunn.com)
AT&T Corp.Attorneys
Dreyer, Lauren J. (lauren.dreyer@bakerbotts.com)
Hawes, Michael (michael.hawes@bakerbotts.com)
Cellco PartnershipAttorneys
Cimino, Frank C., Jr. (fccimino@venable.com)
Hector, William (whector@venable.com)
Woodworth, Megan S. (mswoodworth@venable.com)
Twitter, Inc.Attorneys
Lee, Gene Whan (glee@perkinscoie.com)
Upon acceptance by the Court of the e-filed document, six paper copies will be filed
with the Court, via Federal Express, within the time provided in the Court’s rules.
/s/ Kevin N. Malek
_____________________
Kevin N. Malek
33
UNITED STATES COURT OF APPEALS FOR THE
FEDERAL CIRCUIT
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME
LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE
REQUIREMENTS
1. This brief complies with the type-volume limitation of Federal Rule of Appellate
Procedure 32(a)(7)(B) or Federal Rule of Appellate Procedure 28.1(e).
?This brief contains 7956 words, excluding the parts of the brief exempted by
Federal Rule of Appellate Procedure 32(a)(7)(B)(iii), or
?This brief uses a monospaced typeface and contains ____________ lines of text,
excluding the parts of the brief exempted by Federal Rule of Appellate Procedure
32(a)(7)(B)(iii).
2. This brief complies with the or typeface requirements of Federal Rule of Appellate
Procedure 32(a)(5) or Federal Rule of Appellate Procedure 28.1(e) and the type style
requirements of Federal Rule of Appellate Procedure 32(a)(6).
?This brief has been prepared in a proportionally spaced typeface using Microsoft
Office Professional Plus 2010 in a 14 point Times New Roman Font This brief has been prepared in a monospaced typeface using
____________________ with ____________________ .
September 9, 2019
/s/ Kevin N. Malek
Kevin N. Malek
Malek Moss PLLC
340 Madison Avenue, FL 19
New York, New York 10173
kevin.malek@malekmoss.com
Counsel for Appellant
REAL-TIME LEVEL 2 QUOTE
MPID BID PRICE SIZE TIME
ETRF 0.01 1,424,300 14:36
CDEL 0.01 100,000 14:36
GTSM 0.01 94,900 15:06
NITE 0.01 50,000 12:51
MAXM 0.0001 10,000 08/29
CSTI 0.0001 10,000 08:30
OTCX U 0 08:15
MPID ASK PRICE SIZE TIME
NITE 0.012 123,000 11:27
CSTI 0.012 120,000 11:24
ETRF 0.012 36,825 15:14
GTSM 0.012 10,000 12:51
CDEL 0.0129 1,000,000 14:36
MAXM 200.00 1 08/29
OTCX U 0 08:15
One million sale ticket..
THE LINK TO THE AMICUS BRIEF.READ IT!
https://docs.wixstatic.com/ugd/768c4e_fb042ad5595d46f09526092b480aca2d.pdf
Renowned patent and IP expert, William Sweet is one of Dr. Amelio’s associates on this proposal. According to Dr. Gil Amelio, Mr. Sweet and his team have conducted extensive research on Voip-Pal’s patent portfolio.
REAL-TIME LEVEL 2 QUOTE
MPID BID PRICE SIZE TIME
ETRF 0.013 90,000 15:55
CDEL 0.0125 82,370 15:49
GTSM 0.012 10,000 14:33
NITE 0.01 125,000 15:44
CSTI 0.01 100,000 15:49
MAXM 0.0001 10,000 07:35
OTCX U 0 08:15
MPID ASK PRICE SIZE TIME
GTSM 0.0149 10,000 14:33
ETRF 0.0149 10,000 14:33
CDEL 0.015 200,000 15:49
CSTI 0.015 10,000 14:04
NITE 0.0178 10,000 08/14
MAXM 200.00 1 07:35
OTCX U 0 08:15
TRADE DATA
DATE TIMESTAMP PRICE VOLUME TICK DIRECTION CHANGE
08/20/2019 15:46:32 0.013 19,630 0.00
08/20/2019 15:44:37 0.01298 20,000 -0.00
08/20/2019 14:48:45 0.013 21,120 0.00
08/20/2019 14:33:54 0.013 10,000 0.00
08/20/2019 14:33:44 0.013 78,880 0.00
08/20/2019 14:13:46 0.012 20,000 -0.00
08/20/2019 14:04:33 0.013 20,000 0.00
08/20/2019 14:04:32 0.013 20,000 -0.00
08/20/2019 14:04:08 0.01305 30,000 -0.00
08/20/2019 13:56:32 0.0131 60,000 -0.00
Irregular/odd lot trades, which are not considered for the Open, High, Low or Closing prices, are not shown in trade data table.
IS.IT.REALLY.TRUE.THAT.105.MILLION.SHARES.WERE.RETURNED.TO.VPLM.AND.KIPPINGS WIFE.WAS.SCREAMING.AT.THEIR.ATTORNEY. AFTER.THE.VERDICT. AND HE WAS CRYING ? HMMMMMMMM
REAL-TIME LEVEL 2 QUOTE
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CSTI 0.0123 60,000 13:26
CDEL 0.012 24,600 15:51
GTSM 0.012 10,000 15:56
ETRF 0.0102 130,500 12:18
NITE 0.01 362,000 15:57
OTCX 0.0051 20,000 10:24
MAXM 0.0001 10,000 07:35
MPID ASK PRICE SIZE TIME
NITE 0.0134 90,328 15:59
GTSM 0.0135 21,205 15:58
CDEL 0.0138 20,000 15:51
ETRF 0.014 31,000 13:47
CSTI 0.015 233,400 11:19
OTCX 0.0178 10,000 10:24
MAXM 200.00 1 07:35
TRADE DATA
DATE TIMESTAMP PRICE VOLUME TICK DIRECTION CHANGE
08/09/2019 15:59:18 0.0133 10,000 -0.00
08/09/2019 15:58:57 0.0135 10,000 0.00
08/09/2019 15:58:48 0.0135 10,000 0.00
08/09/2019 15:58:00 0.0135 10,000 0.00
08/09/2019 15:57:23 0.0135 10,000 0.00
08/09/2019 15:56:53 0.0135 10,000 0.00
08/09/2019 15:56:42 0.0135 10,000 0.00
08/09/2019 15:54:01 0.0135 5,000 0.00
08/09/2019 15:53:57 0.01325 30,000 -0.00
08/09/2019 15:53:38 0.0135 10,000 0.00
Irregular/odd lot trades, which are not considered for the Open, High, Low or Closing prices, are not shown in trade data table.
SHORT INTEREST
DATE SHORT INTEREST % CHANGE AVG. DAILY SHARE VOL DAYS TO COVER SPLIT NEW ISSUE
06/14/2019 6,000 100.00 1,807,400 1 No No
05/15/2019 6,500 -54.95 1,831,918 1 No No
04/30/2019 14,428 100.00 3,380,942 1 No No
04/15/2019 6,547 -68.64 9,265,917 1 No No
03/29/2019 6,547 -68.64 9,265,917 1 No No
03/15/2019 20,879 -74.29 1,435,316 1 No No
02/28/2019 81,222 -33.05 1,288,708 1 No No
02/15/2019 121,317 84.85 1,261,512 1 No No
01/31/2019 65,630 -52.52 1,337,812 1 No No
01/15/2019 138,226 -22.46 1,185,136 1 No No
Level 2 Quote Montage: MMID - OTC Link Inside Quote | MMID - OTC Link Quote | cMMID - Closed Quote | U - Unpriced Quote | MMIDu - Unsolicited Quote. All trade/quote prices in USD.
a 5 day kipping trial will proceed
08/08/2019 All Pending Motions (9:30 AM) (Judicial Officer Delaney, Kathleen E.)
Result: Matter Heard
08/12/2019 Jury Trial (1:00 PM) (Judicial Officer Delaney, Kathleen E.)
08/12/2019, 08/13/2019, 08/14/2019, 08/15/2019, 08/16/2019
Minute Order (3:00 AM) (Judicial Officer Cory, Kenneth)
Minute Order Re: Denial of Order Shortening Time
Minutes
08/01/2019 3:00 AM
- On July 31, 2019 at approximately 3:50 p.m., the Court received Defendant s Motion for Judgment on the Pleadings. Although the title of the Motion does not indicate it is being submitted on Order Shortening Time, the Motion does indeed request an Order Shortening Time. NRCP 16.1(c)(2)(O) provides that dispositive motions must be filed no later than 30 days after the discovery cut-off date. Trial is set to begin on August 12, 2019. Furthermore, the Court heard Defendant s Motion for Summary Judgment on March 12, 2019. Accordingly, and given the impending trial date in this matter, the request for an Order Shortening Time is DENIED. CLERK'S NOTE: A copy of this minute order was e-served to counsel. kt 08/01/19
Here is the legal proceedings from the 5/25/2019 Quarterly Report
Legal Proceedings.
Other than noted below, there have been no material developments during the current quarter for our legal proceedings that were disclosed in our registration statement on Form 10 filed on April 22, 2016. For a full disclosure of legal proceedings, please reference our Form 10 registration or Note 11 of the Financial Statements contained in this report.
i) Locksmith Financial Corporation, Inc. et al. v Voip-Pal.com Inc. (Case No A-15-717491-C) filed in Clark County District Court (the “State Case”)
On March 24, 2014, the Company resolved to freeze 95,832,000 common shares that were issued to a company controlled by a former director (the “defendant”) in fiscal 2013 and accounted for at a cost of $1,443,000. The Company resolved to freeze the common shares as the Company believes that the shares were issued as settlement of a line of credit that the Company believes to have been legally unsupported. The defendant alleges that the freeze and the Company’s actions constituted fraud and a breach of securities laws. The Company denies any wrongdoing. Currently the State Case is entering the discovery phase of litigation and the outcome is undeterminable.
ii) Voip-Pal.com Inc. v. Richard Kipping, et al. (Case No. 2:15-cv-01258-JAD-VCF) filed in United States District Court (the “Federal Case”)
On July 2, 2015, the Company filed a case against a former director, a shareholder and the company controlled by a former director. The Company alleges that the common shares issued in the State Case and an additional 7,200,000 common shares were fraudulently obtained and that the shares have been unlawfully transferred to other entities. The proceedings in the Federal Case have been stayed pending a final determination of the issues in the State Case. The outcome of this case is undeterminable.
....................................................................
Minute Order (1:30 PM) (Judicial Officer Bell, Linda Marie)
Minutes
Result: Minute Order - No Hearing Held
08/06/2019 Notice of Department Reassignment
Notice of Department Reassignment
08/07/2019 CANCELED All Pending Motions (9:00 AM) (Judicial Officer Cory, Kenneth)
Vacated
ALL PENDING - PLAINTIFFS' AND THIRD-PARTY DEFENDANTS' JOINT MOTION IN LIMINE RE DTC CHILL ON ORDER SHORTENING TIME... PLAINTIFFS' AND THIRD-PARTY DEFENDANTS' JOINT MOTION IN LIMINE RE EXPERT REPORT AND TESTIMONY ON ORDER SHORTENING TIME... PLAINTIFFS' AND THIRD-PARTY DEFENDANTS' JOINT MOTION IN LIMINE RE USE OF PREJUDICIAL TERMINOLOGY ON ORDER SHORTENING TIME
08/07/2019 Motion for Judgment
Defendants Motion for Judgment on the Pleadings as to Pleadings as to Plaintiff's Derivative Claims (Hearing Requested)
08/07/2019 Clerk's Notice of Hearing
Notice of Hearing
08/08/2019 Motion in Limine (9:30 AM) (Judicial Officer Delaney, Kathleen E.)
Plaintiffs' and Third-Party Defendants' Joint Motion in Limine Re DTC Chill on Order Shortening Time
08/07/2019 Reset by Court to 08/20/2019
08/20/2019 Reset by Court to 08/08/2019
08/08/2019 Motion in Limine (9:30 AM) (Judicial Officer Delaney, Kathleen E.)
Plaintiffs' and Third-Party Defendants' Joint Motion in Limine Re Expert Report and Testimony on Order Shortening Time
08/07/2019 Reset by Court to 08/20/2019
08/20/2019 Reset by Court to 08/08/2019
08/08/2019 Motion in Limine (9:30 AM) (Judicial Officer Delaney, Kathleen E.)
Plaintiffs' and Third-Party Defendants' Joint Motion in Limine Re Use of Prejudicial Terminology on Order Shortening Time
08/07/2019 Reset by Court to 08/20/2019
08/20/2019 Reset by Court to 08/08/2019
08/08/2019 Motion for Judgment (9:30 AM) (Judicial Officer Delaney, Kathleen E.)
Defendant's Motion for Judgment on the Pleading as to Plaintiff's Derivative Claims
09/10/2019 Reset by Court to 08/08/2019
08/12/2019 Jury Trial (9:00 AM) (Judicial Officer Delaney, Kathleen E.)
07/29/2019 Reset by Court to 08/26/2019
08/26/2019 Reset by Court to 08/12/2019
Events & Orders of the Court
08/06/2019 Minute Order (1:30 PM) (Judicial Officer Bell, Linda Marie)
Minutes
08/06/2019 1:30 PM
- Due to the absence of the Court this case shall be REASSIGNED to Department 25. CLERK'S NOTE: A copy of this Minute Order was electronically served to all registered parties of Odyssey File & Serve.// ke 08/06/19
REAL-TIME LEVEL 2 QUOTE 07/03
MPID BID PRICE SIZE TIME
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NITE 0.0155 60,000 12:55
CDEL 0.014 120,000 12:50
CSTI 0.0122 20,000 11:17
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VNDM 0.012 10,000 11:15
OTCX 0.0102 10,000 11:15
ALPS 0.001 10,000 06/10
MAXM 0.0001 10,000 07:35
MPID ASK PRICE SIZE TIME
OTCX 0.0163 70,000 12:36
ETRF 0.0164 62,068 12:19
NITE 0.0177 525,000 12:56
GTSM 0.019 10,000 07/02
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CDEL 0.021 34,800 12:50
ALPS 0.30 2,500 06/10
MAXM 200.00 1 07:35
nomorerollbacks Member Level Monday, 07/01/19 05:37:10 PM
Re: nomorerollbacks post# 81351 0
Post #
81698
of 81760
REAL-TIME LEVEL 2 QUOTE 07/01
MPID BID PRICE SIZE TIME
CDEL 0.018 30,000 15:12
GTSM 0.0165 10,000 06/28
NITE 0.0163 122,400 09:43
CSTI 0.016 143,500 09:43
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VNDM 0.013 10,000 06/28
ALPS 0.001 10,000 06/10
MAXM 0.0001 10,000 07:35
OTCX U 0 08:15
MPID ASK PRICE SIZE TIME
ETRF 0.0188 296,000 15:07
CDEL 0.0188 25,000 15:12
Wall Street Access Co
VNDM 0.019 35,000 12:05
GTSM 0.0192 10,000 07:28
NITE 0.0195 448,000 09:55
CSTI 0.0265 50,000 09:30
ALPS 0.30 2,500 06/10
MAXM 200.00 1 07:35
OTCX U 0 08:15
“The district court was wrong on a number of levels here, and it’s nice to see the Federal Circuit rein it in a bit.”
Federal CircuitOn June 25, the U.S. Court of Appeals for the Federal Circuit issued an opinion in Cellspin Soft, Inc. v. Fitbit, Inc. (2018-1817, 2018-1819 to 1826), reversing a district court’s grant of various Rule 12(b)(6) motions to dismiss complaints that alleged patent infringement based on U.S. Pat. No. 8,738,794 (the ’794 patent), U.S. Pat. No. 8,892,752 (the ’752 patent), U.S. Pat. No. 9,258,698 (the ’698 patent), and U.S. Pat. No. 9,749,847 (the ’847 patent). The Federal Circuit did so because the district court misconstrued precedent from both Aatrix Software, Inc. v. Green Shades Software, Inc., 882 F.3d 1121 (Fed. Cir. 2018) and Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018).
The Federal Circuit panel consisted of Judges Lourie, O’Malley, and Taranto. Judge O’Malley authored the panel’s opinion.
District Court Proceedings
According to the Federal Circuit, the four patents at issue, all of which share the same specification, “generally relate to connecting a data capture device, e.g., a digital camera, to a mobile device so that a user can automatically publish content from the data capture device to a website.”
The district court dismissed Cellspin’s complaints against the accused infringers pursuant to Rule 12(b)(6) for failure to state a claim on which relief can be granted. It did so based on the U.S. Supreme Court’s two-step Alice framework for analyzing patent eligibility.
At Alice step one, the district court concluded that the asserted claims were directed to the abstract idea of “acquiring, transferring, and publishing data and multimedia content on one or more websites,” explaining that the asserted claims used “generic computer hardware and software components” to simply automate the conventional, manual process of transferring data from one device to another.
At Alice step two, the district court found that the asserted claims did not recite an “inventive concept” because the various claim elements like the camera and Bluetooth-enabled mobile device represent generic computer components performing “as expected according to their ordinary use.”
Notably, the district court also “acknowledged Cellspin’s argument that there was a factual dispute about whether the ‘combination’ of these elements was ‘well-understood, routine and conventional.’…But the district court concluded that it ‘need not reach the issue’ for two reasons…First, the district court distinguished Berkheimer because it arose ‘at the summary judgment stage, not in the context of a motion to dismiss.’…Second, the district court faulted Cellspin for not ‘identify[ing] any portion of the [’794 patent’s] specification’ that described the inventive concepts Cellspin alleged in its amended complaints.”
The district court also awarded attorney’s fees to the accused infringers on the basis of the case being “exceptional” under 35 U.S.C. § 285 since the asserted claims were “manifestly directed to an abstract idea” and that Cellspin’s claims were “exceptionally meritless” even though they did not amount to bad faith litigation.
In awarding attorney’s fees, the district court also criticized Cellspin for its “refusal to analyze its patents critically” before suing the accused infringers. The district court went so far as to say that Cellspin “could have litigated a test case but instead chose to file and pursue aggressively fourteen lawsuits simultaneously.” For its part, Cellspin argued that it did not need to file a test case because its patents were presumptively valid, but the district court somehow remarkably concluded that Cellspin’s patents “are not presumed eligible under Section 101.”
The Federal Circuit’s Analysis
Conducting its own analysis, the Federal Circuit agreed with the district court that the claims were directed to an abstract idea but reversed anyway on the basis of the district court failing to conduct a proper Alice step two. This was because the district court ignored Cellspin’s factual allegations that, when properly accepted as true, precluded the grant of a 12(b)(6) motion to dismiss.
First, regarding Alice step one, to the surprise of no one on the patent bar, the Federal Circuit indicated that Alice did not establish any “precise contours” for defining whether claims are directed to “abstract ideas.” But the Federal Circuit also noted that it has held claims directed to improvements to computer technology to be patent-eligible.
Then, in conducting its own Alice step one, the Federal Circuit held that the asserted claims were drawn to the idea of “capturing and transmitting data from one device to another,” relying in part on apparently harmful statements made in the ‘794 patent that “the invention” generally “relates to distribution of multimedia content” and “[m]ore particularly…relates to pairing a digital data capture device in conjunction with a mobile device for automatically publishing data…on one or more websites simultaneously.” The Federal Circuit also based its conclusion at Alice step one on the fact that many of its previous cases held claims reciting the collection, transfer, and publishing of data to be directed to an abstract idea and that this therefore “compelled” a similar conclusion in the present instance. The Federal Circuit also noted that “the need to perform tasks automatically is not a unique technical problem” that would render the asserted claims non-abstract at Alice step one.
Then, at Alice step two, the Federal Circuit considered whether the claimed elements recited an inventive concept individually and as an ordered combination. In reversing the district court at this step, the Federal Circuit noted that “Cellspin’s allegations identify several ways in which its application of capturing, transferring, and publishing data was unconventional,” that Cellspin alleged its claims “provided various benefits over prior art systems,” and that Cellspin alleged that its specific ordered combination of elements was inventive. The Federal Circuit also indicated at one point that Cellspin actually provided evidence suggesting the techniques embodied in its claims had not been implemented elsewhere in a similar way.
The Federal Circuit then noted that “[t]he district court discounted these allegations in granting Appellees’ motions to dismiss because Cellspin ‘fail[ed] to cite to support in the [shared specification]’ for its allegations…In Aatrix, however, we repeatedly cited allegations in the complaint to conclude that the disputed claims were potentially inventive.”
The Federal Circuit then held that “[w]hile we do not read Aatrix to say that any allegation about inventiveness, wholly divorced from the claims or the specification, defeats a motion to dismiss, plausible and specific factual allegations that aspects of the claims are inventive are sufficient…As long as what makes the claims inventive is recited by the claims, the specification need not expressly list all the reasons why this claimed structure is unconventional. In this case, Cellspin made specific, plausible factual allegations about why aspects of its claimed inventions were not conventional, e.g., its two-step, two-device structure requiring a connection before data is transmitted. The district court erred by not accepting those allegations as true [emphasis added].”
Then, in terms of the second precedent that the district court misconstrued, the Federal Circuit observed that “[t]he district court also decided that it need not credit Cellspin’s allegations because the case Cellspin relied on for that proposition, Berkheimer, could be distinguished because it arose in the context of a motion for summary judgment…That conclusion is impossible to reconcile with Aatrix, where we expressly stated that ‘patentees who adequately allege their claims contain inventive concepts survive a §101 eligibility analysis under Rule 12(b)(6).’…The district court thus further erred by ignoring the principle, implicit in Berkheimer and explicit in Aatrix, that factual disputes about whether an aspect of the claims is inventive may preclude dismissal at the pleadings stage under § 101.”
The Federal Circuit thus concluded at Alice step two that, accepting the allegations stated by Cellspin as true, “we cannot conclude that the asserted claims lack an inventive concept” based on the “limited record” before it.
Additionally, in reversing the district court on the motions to dismiss, the Federal Circuit vacated the attorney’s fees award and made a few other observations “in the interests of judicial economy.” One of those observations involved the district court’s statement that Cellspin should have filed a “test case” before asserting its patents against all of the accused infringers.
Rejecting the district court on this point as well, the Federal Circuit thankfully indicated that “[P]atents granted by the Patent and Trademark Office are presumptively valid.” Thus, “To the extent the district court departed from this principle by concluding that issued patents are presumed valid but not presumed patent eligible, it was wrong to do so.”
Takeaways
The district court was wrong on a number of levels here, and it’s nice to see the Federal Circuit rein it in a bit. Of note in Cellspin Soft is the Federal Circuit:
(1) Indicating that according to Aatrix, “plausible and specific factual allegations that aspects of the claims are inventive are sufficient…As long as what makes the claims inventive is recited by the claims, the specification need not expressly list all the reasons why this claimed structure is unconventional.”
(2) Indicating that Berkheimer applies to motions to dismiss under Rule 12(b)(6) in addition to applying at the summary judgment stage in that “factual disputes about whether an aspect of the claims is inventive may preclude dismissal at the pleadings stage under § 101.”
(3) Indicating that the presumption of patent validity also extends to the issue of patent-eligibility.
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Wall Street Access Co
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