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Me too! I've played in one WSOP event in my life around 3 years ago.. very fun. didn't cash but still fun
Im there... You won't be able to peel me off the poker tables though
So would I! I don't believe if for a second but I would celebrate hard
You guys just swapping spit for volume or what? something is up that's for sure
This wave is bringing us dangerously close to trips! what the H is going on today?
Wait is this your group SMG?
Nothing of substance that I'm aware of... It's just the OTC Investment Facebook group putting out a blast about thin L2
https://www.facebook.com/OTCInvestmentGroup?fref=photo
anyone remeber the days of .03c? I wish people still believed the bs. Still hoping for the best.. GL
I hope you're right shanett. We have been TOO patient!
this is ridiculous
the downward spiral continues
A chart with no volume is like a survey with no participants... jusssaayyin.. This is way more fun than the lotto! I would love a repeat of last Feb...
Green day feels good.. This stock was getting depressing
Anddd welcome .0006s
Sh*t rolls downhill. There is a lot of sh*t at the top of this mountain and not enough shovels
Not the first time they have promised that products are right around the corner
Revolutionary Concepts Inc. Projects Considerable Profits From the Initial Sale of 1,000 Eye Talk Communicator Camera Systems
Feb. 4, 2011 (GLOBE NEWSWIRE) -- Revolutionary Concepts, Inc. (OTCBB:REVO) (www.revolutionaryconceptsinc.com) a development stage company holding seven patents focused on the design and development of the "Eye Talk Communicator," a network camera video device with current applications in the medical, entry management, surveillance, and child care arenas has signed an agreement for the sale of 1,000 of its Eye Talk Communicator Camera Systems to JMI Telecommunications (Pink Sheets:JMIM) of Charlotte, NC.
The sale of the camera systems is set to take place no later than October 30, 2011 and projected sales are between $800,000 and $1,200,000. Initial estimated profits would range from $550,000 to $950,000 depending on the financing options.
"As we all know, the first order is always the most difficult for a development stage company and we are extremely pleased with the projected sales revenues. A successful rollout could lead to a significant international expansion and potential inclusion in the JMI Telecommunications offering mix," says Ronald Carter, President and CEO Revolutionary Concepts Inc.
I think your/our lack of info on IQmagine says it all about the transparency of REVO. This company has been managed as a 'trade' and not an 'investment' thus far. Not to say the potential to become something isn't there, but if you look at every PR issued in the past it has never materialized to this point. They are just bloated revenue projections and forward looking statements and until I see something tangible I will never believe they are anything other than that. The same goes for the IQmagine "joint venture" proclamation. Go ahead and look at every PR and tell me if you can point to one that has come to fruition..
HA well said sir..
I'm not loading unless it goes trips. If it doesn't this time so be it. However, if it spikes as a result of whatever is behind the sudden volume I will lock in free shares (should have done that last Feb, I'm stupid) and then re-up when it deflates again!
Yes and Apple is going to appeal. The same thing happened to VirnetX in 2013 but the courts reversed the decision
http://www.reuters.com/article/2014/09/16/us-apple-virnetx-idUSKBN0HB20D20140916
http://www.reuters.com/article/2014/09/16/virnetx-brief-idUSWEN00DZ620140916
They may still be awarded damages, but the thing to take from this is the big companies have the resources and the know how to prolong the court cases for years. REVO may one day also be awarded damages of some kind (minus 60% for Eyetalk). They could also go bankrupt. How much longer can they sustain operations by selling cheap shares? I think this is more evidence that a PR campaign is likely. And it may work, temporarily. But until the courts decide we will be at these gutter levels for a long time to come. The best best scenario would be a buyout but I think that is a fantasy more than anything. I'll add a little more to my position but only when triple zeros hit
I totally believe a PROMO is coming. I think yesterday's dump-off fundraiser is strong evidence of this. Why does an open and shut patent portfolio need a pump? give me a break
Yes, you say a lot of things and present them as 'fact'. I would elaborate but my post will be deleted for "violation", I'm sure
The censorship crew is hard at work today.. er, i mean the MODs
This is quite discouraging but at least we have an angry ORCA on our team! It's always fun when he is around
REVO DUMPAGEBOOMAGE! Share sellback in progress
The rug keeps getting pulled out from under us any time there is a glimmer of hope
THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
EYETALK365, LLC,
Plaintiff,
v.
CPI SECURITY SYSTEMS, INC.
Defendant.
Civil Action No. 3:14-cv-526-FDW-DSC
JURY TRIAL DEMANDED
EYETALK365 LLC’S MEMORANDUM IN OPPOSITION
TO CPI’S MOTION FOR JUDGMENT ON THE PLEADINGS
FARNEY DANIELS PC
/s/ Steven R. Daniels
Steven R. Daniels, Pro Hac Vice
800 South Austin Avenue, Suite 200
Georgetown, Texas 78626
Telephone: (512) 582-2828
Facsimile: (512) 582-2829
sdaniels@farneydaniels.com
David C. Boggs, NCSB #8182
david.boggs@wishartnorris.com
June K. Allison, NCSB #9673
june.allison@wishartnorris.com
WISHART NORRIS HENNINGER
& PITTMAN, P.A.
6832 Morrison Boulevard
Charlotte, North Carolina 28211
Telephone: (704) 364-0010
Facsimile: (704) 364-0569
Attorneys for Plaintiff
EYETALK365, LLC
Case 3:14-cv-00526-FDW-DSC Document 27 Filed 02/12/15 Page 1 of 21
ii
TABLE OF CONTENTS
Page
I. BOTTOM LINE UP FRONT ............................................................................................. 1
II. PROCEDURAL HISTORY ................................................................................................ 2
III. BACKGROUND OF EYETALK365 AND ITS PATENTS.............................................. 2
IV. LEGAL STANDARDS ...................................................................................................... 3
V. ARGUMENT ...................................................................................................................... 5
A. The Patents-In-Suit Are Directed To Patentable Subject Matter. ........................... 5
B. Precedential Case Law on Section 101 Motions Demonstrate that the Patentsin-
Suit are Directed to Patentable-Subject Matter. ............................................... 11
C. Even If the Patents-in-Suit Did Embody Abstract Ideas (Which They Do
Not), the Claims Recite an Inventive Concept Within the Surveillance
Industry and Are Thus Patentable. ........................................................................ 16
VI. CONCLUSION ................................................................................................................. 17
Case 3:14-cv-00526-FDW-DSC Document 27 Filed 02/12/15 Page 2 of 21
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Alice Corp. Pty. Ltd. v. CLS Bank Int’l,
134 S. Ct. 2347 (2014) ..................................................................................................... passim
Bilski v. Kappos,
561 U.S. 593, 130 S. Ct. 3218, 177 L. Ed. 2d 792 (2010) .........................................................5
BRCA1- & BRCA2-Based Hereditary Cancer Test Patent Litig. v. Ambry Genetics Corp.,
2014 U.S. App. LEXIS 23692 (Fed. Cir. 2014) ......................................................................12
buySAFE, Inc. v. Google, Inc.,
765 F.3d 1350 (Fed. Cir. 2014)................................................................................................11
Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A.,
2014 U.S. App. LEXIS 24258 (Fed. Cir. Dec. 23, 2014) ..................................................11, 12
DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245 (Fed. Cir. 2014)........................................................................................ passim
Digitech Image Techs., LLC v. Electronics for Imaging, Inc.,
758 F.3d 1344 (Fed. Cir. 2014)..........................................................................................13, 14
I/P Engine, Inc. v. AOL Inc.,
576 Fed. Appx. 982 (Fed. Cir. 2014) .......................................................................................13
Mayo Collaborative Services v. Prometheus Laboratories, Inc.,
132 S. Ct. 1289 (2012) ...............................................................................................................3
Planet Bingo, LLC v. VKGS LLC,
576 Fed. Appx. 1005 (Fed. Cir. 2014) ...............................................................................12, 13
Ultramercial, Inc. v. Hulu, LLC,
772 F.3d 709 (Fed. Cir. 2014)..................................................................................................12
Statutes
35 U.S.C. Section 101 ............................................................................................................ passim
Other Authorities
Fed. R. Civ. P. 15 .............................................................................................................................2
Case 3:14-cv-00526-FDW-DSC Document 27 Filed 02/12/15 Page 3 of 21
1
I. BOTTOM LINE UP FRONT
CPI Security System, Inc.’s (“CPI”) Motion for Judgment on the Pleadings should be
denied because the two patents-in-suit1 do not claim abstract ideas but rather implement tangible
machine-based systems as well as methods related to video surveillance. In its motion, CPI
creates a strawman by ignoring the language of the claims and specification of the Eyetalk
patents and asserting simply that the patents-in-suit cover “the abstract concept of remotely
surveilling an entrance.” See D.I. 22. But it is without question that a human cannot “remotely
monitor an entrance.” And indeed, even a cursory review of the patents-in-suit reveals that the
claims of the patents-in-suit can only be practiced through use of specially configured machines,
which are specifically identified in Section 101 as patentable subject matter and are clearly
tangible and not abstract. In addition, CPI, without any supporting evidence or even citations to
the patents, avers that the patents can be performed by an ordinary computer and video camera
but those assertions directly contradict the claims2 in the patents-in-suit that require specially
programmed and configured systems to perform video surveillance in a specialized manner.
Much like the DDR Holdings case discussed below, the patents-in-suit do not preempt the entire
field of remotely viewing someone at an entrance as alleged by Defendant, but instead claim
distinct methods and systems for doing so using tangible well-grounded devices as recited in the
claims. As a result, these patent are distinctly different than the patents found by the Federal
Circuit and/or Supreme Court to be unpatentable under 35 U.S.C. Section 101. Thus, the claims
at issue are drawn to patentable subject matter and CPI’s motion should be denied.
1 U.S. Patent Nos. 8,139,098 (the “‘098 patent”) and 8,144,184 (the “‘184 patent”) (collectively, the
“patents-in-suit”).
2 Eyetalk asserted claims 1–5, 13–18 and 20–21 of the ‘098 patent, and claims 1, 6 and 9–14 of the ‘184
patent (the “Asserted Claims”), against CPI.
Case 3:14-cv-00526-FDW-DSC Document 27 Filed 02/12/15 Page 4 of 21
2
II. PROCEDURAL HISTORY
Eyetalk365, LLC (“Eyetalk”) filed suit on September 22, 2014 and served its initial
infringement contentions on January 16, 2015. CPI’s initial invalidity contentions are due
May 11, 2015. The parties are scheduled to begin the claim construction process by exchanging
terms for construction on June 1, 2015 and to file a joint claim construction statement on July 21,
2015. The close of claim construction discovery is scheduled for August 20, 2015, followed by
the claim construction hearing on October 15, 2015. On January 28, 2015, Eyetalk filed a
motion to amend its complaint to add, among other claims, two additional Eyetalk patents which
on information and belief, CPI infringes as well. CPI, while acknowledging the low bar to
amending claims under Rule 15 and 4th Circuit precedent, opposed Eyetalk’s motion to amend.
III. BACKGROUND OF EYETALK365 AND ITS PATENTS
Eyetalk owns all rights, title, and interest to the patent-in-suit and to four other patents.
Eyetalk was formed for two purposes: 1) to develop products that embody the inventions set
forth in Eyetalk’s patent portfolio; and 2) to prevent others from infringing its patents. Eyetalk is
currently working on two products that are planned to be released in the third quarter of 2015.
Eyetalk was created and is headquartered in Cornelius, North Carolina. CPI is a security
provider company, which offers remote surveillance systems to its customers. On information
and belief, CPI has no patents in the remote surveillance industry. Livewatch Security LLC
(“Livewatch”), a defendant in another related suit that also filed a similar motion for judgment
on the pleadings, has only two patents, the earliest of which was filed in 2012. Curiously, one of
the Livewatch’s patents claim “[a] method for providing notification of an alarm event to a
plurality of individuals and communication there between . . .” See Abstract of U.S. Patent
8,896,435 filed on January 9, 2014, attached as Exhibit A. which is precisely the subject matter
claimed by the Eyetalk patents nine years earlier, with the important exception that the Eyetalk
Case 3:14-cv-00526-FDW-DSC Document 27 Filed 02/12/15 Page 5 of 21
3
patents provide for specifically programmed machines to carry out the claims. Eyetalk, and its
successor-in-interest to the patents-in-suit, spent countless resources developing its intellectual
property through research and development only to have the industry use the patented inventions
without permission. As a result, these lawsuits became necessary.
IV. LEGAL STANDARDS
While the Supreme Court did recently attempt to clarify its guidance for determining if a
patent is drawn to patentable subject matter, the statute clearly provides that processes and
inventions related to machines are patentable subject matter when the claims relate to “a new and
useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101 (“Section
101”). Section 101 is an exclusionary principle and the Supreme Court has cautioned courts to
“tread carefully in construing this exclusionary principle lest it swallow all of patent law.” Mayo
Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289, 1293-94 (2012). The
Supreme Court has even acknowledged that at some level “all inventions . . . embody, use,
reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas,” Id. at 1293,
thus acknowledging the danger of strawmen such as the one CPI has manufactured here.
In Alice, the Supreme Court established a two-step “framework for distinguishing patents
that claim laws of nature, natural phenomena, and abstract ideas from those that claim patenteligible
applications of those concepts.” Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347,
2355 (2014). In step one of the Alice/Mayo analysis the Court determines whether the claims
involve an abstract idea. See Mayo, 132 S. Ct. at 1296–1297. If the Court determines that the
entire claim relates to an abstract idea, then the Court should determine whether the claims are
accompanied by an inventive concept; only if an inventive concept does not exist then the court
may find that the claim is drawn to unpatentable subject matter. See Alice Corp., 134 S. Ct. at
236.
Case 3:14-cv-00526-FDW-DSC Document 27 Filed 02/12/15 Page 6 of 21
4
In DDR Holdings, the Federal Circuit assembled a summary of selected precedential
Section 101 cases that can help identify claims that are drawn to unpatentable subject matter as
compared to claims that do claim patent subject matter:
In Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716 (Fed. Cir. 2014), the claims
merely recited the abstract idea of using advertising as a currency as applied to the
particular technological environment of the Internet. In buySAFE, Inc. v. Google,
Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014), the claims recited no more than using
a computer to send and receive information over a network in order to implement
the abstract idea of creating a “transaction performance guaranty.” In Accenture
Global Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1344-45 (Fed.
Cir. 2013), the claims merely recited “generalized software components arranged
to implement an abstract concept [of generating insurance-policy-related tasks
based on rules to be completed upon the occurrence of an event] on a computer.”
And in Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Canada (U.S.), 687 F.3d
1266, 1278 (Fed. Cir. 2012), the claims recited no more than the use of a
computer “employed only for its most basic function, the performance of
repetitive calculations,” to implement the abstract idea of managing a stable-value
protected life insurance policy.
See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014).
None of these decisions related to the video surveillance industry and perhaps more
telling, no court has determined that claims reciting a system or method that can be performed
only by machines such as “remotely surveilling an entrance” is per se abstract. Indeed, the task
of remotely viewing someone is inherently a task carried out by machines and in this case,
multiple machines that must be configured to operate as required by the claims. As the Federal
Circuit advised in the recent DRR Holdings case, known elements and products have “long been
a basis for patentable inventions”:
The creation of new compositions and products based on combining elements
from different sources has long been a basis for patentable inventions. See, e.g.,
Parks v. Booth, 102 U.S. 96, 102 (1880) (“Modern inventions very often consist
merely of a new combination of old elements or devices, where nothing is or can
be claimed except the new combination.”); KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 418–19 (2007) (“[I]nventions in most, if not all, instances rely upon building
blocks long since uncovered, and claimed discoveries almost of necessity will be
combinations of what, in some sense, is already known.”).
Case 3:14-cv-00526-FDW-DSC Document 27 Filed 02/12/15 Page 7 of 21
5
DDR Holdings, LLC, 773 F.3d at 1257, fn. 5 (Fed. Cir. 2014).
Much like the DDR Holdings case, the patents-in-suit do not preempt the entire field of
remotely viewing someone at an entrance, but instead claim distinct methods and systems for
doing so using tangible well-grounded devices as recited in the claims.
V. ARGUMENT
A. The Patents-In-Suit Are Directed To Patentable Subject Matter.
Section 101 defined four broad categories of patentable inventions: processes, machines,
manufactures, and compositions of matter. 35 U.S.C. Section 101. Based upon these broad
categories of patentable subject matter it follows that “Congress took this permissive approach to
patent eligibility to ensure that ingenuity should receive a liberal encouragement.” Bilski v.
Kappos, 561 U.S. 593, 601, 130 S. Ct. 3218, 177 L. Ed. 2d 792 (2010). Thus, it is clear that the
claims of the patents-in-suit are directed to at least one (machines and/or processes) of the four
patent-eligible subject matter categories. The Supreme Court has averred that claims that
“improve the functioning of the computer itself or any other technology” contain patentable
subject matter. See Alice, 134 S. Ct. at 2359. As a result, CPI’s argument that the claims
somehow cover an abstract idea fails when the claims are examined as a whole in light of the
specification.
The Asserted Claims of the patents-in-suit do not embody abstract ideas. The first
indication that the patents-in-suit recite patentable subject matter is that only machines, rather
than humans, can perform the claims of the patents-in-suit. In addition, CPI’s effort to frame the
patents-in-suit as only covering the idea of “remotely surveilling someone at an entrance”
ignores the claims themselves, which require much more than just observing a person at an
entrance. Indeed, Claim 1 of both patents-in-suit require a computerized controller to
specifically execute a program that is configured to carry out the limitations, which demonstrates
Case 3:14-cv-00526-FDW-DSC Document 27 Filed 02/12/15 Page 8 of 21
6
that the patentee intended for the computerized controller to be specially programmed and not
merely be a generic computer component.
Furthermore, the specifications for the patents-in-suit describe with particularity the
inventions disclosed as well as provide tangible examples of such systems. While CPI claims
that “the system of the patents-in-suit describes a solution to this age-old problem that uses a
camera, generic computer components and a network to remotely observe the entrance in
question,” the patentee never claims anywhere in the specification that the invention can be
performed by “generic computer components” or even a generic “camera.” See D.I. 22 at 12.
Rather, the patentee, with great detail, explained how his system worked and provided concrete
examples of the mechanical hardware components that would carry out at least one embodiment
of his invention:
In one aspect of the invention, an audio-video communication system comprises a
wireless exterior module located proximate an entrance, a computerized controller
running a software application and a remote peripheral device. The wireless
exterior module includes a proximity sensor for detecting a person at the entrance,
a video camera for recording an image of the person at the entrance, a microphone
for recording sound of the person at the entrance, a speaker for playing audio to
the person at the entrance, a transmitter for communicating sounds and images of
the person at the entrance, and a receiver for receiving communications at the
wireless exterior module. The computerized controller is disposed in wireless
electronic communication with the wireless exterior module via the transmitter
and the receiver of the wireless exterior module. The computerized controller is
configured to control recording of communications with the wireless exterior
module and playback of such recording, and the software application includes a
graphic user interface that enables a user to view images from the video camera
communicated from the wireless exterior module. The remote peripheral device is
configured to electronically communicate with the computerized controller for
viewing an image from the video camera communicated from the wireless
exterior module.
See ‘098 Patent, col. 1, ll. 58-col. 2, ll. 14. The patentee further provided 14 figures in the
patents-in-suit all reciting tangible components specifically programmed to carry out the
patentee’s invention.
Case 3:14-cv-00526-FDW-DSC Document 27 Filed 02/12/15 Page 9 of 21
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Claim 1 of the ‘184 patent is a system claim that clearly describes patentable subject
matter. Claim 1 requires a number of machines to accomplish the claimed goal. Ignoring the
other aspects, requirements and functions of the claim, claim 1 of the ‘184 patent requires a
wireless camera, a sensor, a plurality of peripheral devices, a computer, and a software
application. There is nothing abstract about the claims. Rather, they claim a system that is
uniquely configured to create a tangible, new and novel system within the field of security
system technology. Examination of the remaining requirements of the claims provides
additional details of the system:
1. The wireless camera must be configured to communicate video data and provide
the video data;
2. A sensor must be used to activate the wireless camera;
3. The plurality of peripheral devices must be associated with a user;
4. The computer must be specifically programmed or configured to:
a. Communicate with the wireless camera;
b. Communicate with each of the peripheral devices;
c. Configured to execute a software application capable of:
(i) connecting each of the peripheral devices with a respective user,
(ii) receiving video data from the wireless device upon actuation of the
sensor, and
(iii) generating a graphical user interface through which the video data
from the wireless device is accessible by each respective user using
one of the peripheral devices.
The dependent claims of the ‘184 patent also disclose tangible inventions as opposed to
abstract ideas. For example, claim 2 requires the wireless camera to also have a microphone, a
speaker, an RF transmitter, and an RF receiver, which are all tangible improvements to the
wireless devices that increases the functionality of the claimed system. Claim 3 requires the
Case 3:14-cv-00526-FDW-DSC Document 27 Filed 02/12/15 Page 10 of 21
8
wireless camera to be able to communicate both audio and video data which enables a system to
communicate with a visitor at the door using a remote peripheral device while also viewing
video of the person. Claim 7 further requires the software running at the computer to be able to
contact a user of the system through his or her peripheral device upon triggering of the sensor.
Claim 9 requires the system to provide video and audio data transmitting from the wireless
camera to be provided through the Internet such that a user with a peripheral device can access
the audio and video data via a peripheral device. In short, none of the dependent claims recite an
abstract idea, but rather they further define the system using concrete and tangible machines to
carry out the invention. While CPI cursorily dismisses these claims as adding nothing more to
the strawman description of an “abstract idea” on which it attempts to supports its motion, even a
quick read of dependent claims 2-18 reveals claims directed to patent subject matter (e.g.,
machines) that carry out the invention.3
Similar to the ‘184 patent, the ‘098 patent claims a method of remote surveillance that is
used in conjunction with a specially programmed computerized controller to provide video
transmitted from the camera to a computerized controller running a software application wherein
the controller can generate a graphic user interface and provide the same to a remote peripheral
device:
1. A method for receiving a person at an entrance, comprising the
steps of:
(a) detecting the presence of a person at the entrance;
(b) transmitting, to a computerized controller running a
software application, video of the person at the entrance
recorded using a camera located proximate the entrance;
and
3 Of note, the only claims asserted against CPI are claims 1–5, 13–18 and 20–21 of the ‘098 patent, and
claims 1, 6 and 9–14 of the ‘184 patent and as a result these are the only claims at issue in CPI’s Motion.
Case 3:14-cv-00526-FDW-DSC Document 27 Filed 02/12/15 Page 11 of 21
9
(c) providing, with the application software running at the
computerized controller, a graphic user interface to a
remote peripheral device by which a user of the remote
peripheral device may view the video of the person at the
entrance.
The steps of claim 1 in the ‘098 patent recite patentable subject matter as well. The step
of “detecting the presence of a person at the entrance” requires a machine (sensor and/or camera
comprising a sensor) to detect a person at the entrance. The patentee fully described this step in
the specification:
1. “The wireless exterior module includes a proximity sensor for detecting a
person at the entrance. . . .” Col. 1, ll. 61-63.
2. “In a second aspect of the invention, a method for two-way audio-video
communications between a first person at an entrance and a second person
comprises the steps of (a) detecting, with a proximity sensor located
proximate an entrance. . . .” Col. 2, l. 66 - col. 3, l. 3. .
3. “In a third aspect of the invention, a method for receiving a person at an
entrance comprises the steps of (a) detecting, with a proximity sensor
located proximate an entrance, the presence of a person at the
entrance . . . .” Col. 3, ll. 60-64.
4. “An exemplary method of use in the system 100 includes greeting and
communicating with visitors of a business or residence. In accordance
with the method, the presence of a visitor is detected via the proximity
sensor 26 of the DVMS module 10, where the DVMS module 10 is
mounted at or near an entrance to the business or residence.” Col. 10, ll. 1-
15.
It is clear that the patentee intended for machines to perform the step of detection of a person at
an entrance and thus this step recites patentable subject matter. The next step in claim 1 of the
‘098 patent requires “transmitting, to a computerized controller running a software application,
video of the person at the entrance recorded using a camera located proximate the entrance” and
there is also no doubt that the transmission step requires the use of machines to perform the step.
In addition, this step requires a computerized controller that is specifically programmed to
execute a software application instead of a generic computerized component. This step also
Case 3:14-cv-00526-FDW-DSC Document 27 Filed 02/12/15 Page 12 of 21
10
requires the camera to record the video. Thus, the “transmission” step recites patentable subject
matter in that it requires multiple machines (camera and computerized controller) to perform the
step.
The third step in claim 1 of the ‘098 patent requires the computerized controller to
“provid[e], with the application software running at the computerized controller, a graphic user
interface to a remote peripheral device by which a user of the remote peripheral device may view
the video of the person at the entrance.” Thus, the computerized controller must run a software
application that is programmed to provide a graphic user interface to a remote peripheral device.
Thus, this third step of claim 1 requires a computerized controller and peripheral device to meet
this limitation. Because the third step also requires machines to perform the limitation, the third
step recites patentable subject matter as well. In sum, there is not one claim limitation in claim 1
of the ‘098 patent that can be performed by humans or simply through the use of putting a longheld
business solution on the Internet, which are the typical patents that come under Section 101
scrutiny. DDR Holdings, LLC, 773 F.3d at 1256-57 (Fed. Cir. 2014). The dependent claims of
the ‘098 require unique aspects of the system that can perform the claims such as requiring video
be sent to a peripheral device in real time, where the video is streamed to the peripheral device,
providing audio of the person at the entrance through a graphic user interface, where the video
can be sent to a cell phone configured to use the graphic user interface from the computerized
controller, etc. See ‘098 Patent, claims 3, 5, 6, and 13. The patents-in-suit are directly tied to
machines which are patentable subject matter as defined by statute and even CPI’s strained
concept of an “abstract idea” demonstrates that Eyetalk’s patents contain patentable subject
matter.
Case 3:14-cv-00526-FDW-DSC Document 27 Filed 02/12/15 Page 13 of 21
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B. Precedential Case Law on Section 101 Motions Demonstrate that the Patentsin-
Suit are Directed to Patentable-Subject Matter.
There is great confusion on what qualifies as an abstract idea and what does not in light
of the Supreme Court’s decision in Alice. However, the Supreme Court and Federal Circuit have
provided some guidance. In Alice, the Supreme Court ruled that a patent covering “a method of
exchanging financial obligations between two parties using a third-party intermediary to mitigate
settlement risk” was ineligible for patent protection because the idea of “intermediated
settlement” had been performed by humans prior to using computers to perform the task of
intermediated settlement. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2356 (U.S.
2014). As discussed, the patents-in-suit can only be accomplished by the use of machines and
even CPI’s carefully crafted “abstract concept” of “remotely surveilling a person at an entrance”
must be performed by machines, which are specifically recited in Section 101.
After the Supreme Court’s decision in Alice, the Federal Circuit has had several
opportunities to provide guidance on which claims or ideas may qualify as abstract ideas. In
Content Extraction, the Federal Circuit explained that “claims directed to the mere formation and
manipulation of economic relations may involve an abstract idea.” Content Extraction &
Transmission LLC v. Wells Fargo Bank, N.A., 2014 U.S. App. LEXIS 24258 at *6 (Fed. Cir.
Dec. 23, 2014); see also buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014)
(creating a transaction performance guaranty for a commercial transaction on computer networks
such as the Internet). In explaining the abstract idea in Content Extraction, the Federal Circuit
explained that humans could perform many of the claims of the patent in issue: “The concept of
data collection, recognition, and storage is undisputedly well-known. Indeed, humans have
always performed these functions. And banks have, for some time, reviewed checks, recognized
relevant data such as the amount, account number, and identity of account holder, and stored that
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information in their records.” Id. at 7. Thus, Content Extraction simply clarified that patents
related to functions that humans could perform and especially those related to financial
transactions are not patent eligible. As noted above, this is not the case with Eyetalk’s patents as
the claims cannot be performed by a human.
The Federal Circuit in the BRCA-1 case held that the claims were directed to patent
ineligible subject matter because the “abstract idea of comparing BRCA sequences and
determining the existence of alterations” and this comparison could be done by humans.
However, even if machines could perform the comparison it would not make the claims patent
eligible. See BRCA1- & BRCA2-Based Hereditary Cancer Test Patent Litig. v. Ambry Genetics
Corp., 2014 U.S. App. LEXIS 23692 at *16-18 (Fed. Cir. 2014). Next in Ultramercial, the
Federal Circuit invalidated a patent under Section 101 for claiming an abstract idea but also
cautioned claims requiring only software limitations can be patent eligible, saying “[w]e
acknowledge this reality, and we do not purport to state that all claims in all software-based
patents will necessarily be directed to an abstract idea. Future cases may turn out differently. But
here, the ‘545 claims are indeed directed to an abstract idea, which is, as the district court found,
a method of using advertising as an exchange or currency.” Ultramercial, Inc. v. Hulu, LLC, 772
F.3d 709 at *715 (Fed. Cir. 2014). A key point in Ultramercial is that the patent claims again
related to a financial activity (using advertising as currency) and because the claims only recited
software limitations, the patent claims covered an abstract idea. As demonstrated in detail above,
the Eyetalk patents do not involve financial activity and are not simply replacing human activity
with software.
In Planet Bingo, the Federal Circuit, in a non-precedential opinion, held that a patent
claiming playing the game of Bingo online was an abstract concept and stated that “the district
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court correctly concluded that managing the game of bingo “consists solely of mental steps
which can be carried out by a human using pen and paper.” Planet Bingo, LLC v. VKGS LLC,
576 Fed. Appx. 1005 at *1007 (Fed. Cir. 2014) (internal citations omitted). The Federal Circuit
in the Planet Bingo case merely held that a person could not patent what a human could do with
“pen and paper”. Id. Additionally, simply placing the game of Bingo online was an abstract idea
pursuant to the Federal Circuit. While this case was non-precedential in nature, it is instructive
as to what the Federal Circuit considers unpatentable subject matter.
Next, in the I/P Engine case, the Federal Circuit held that claims drawn to a system that
filters queries using combined content and collaborative data were not patent eligible because
they do not “improve the functioning of the computer itself” or “effect an improvement in any
other technology or technical field.” I/P Engine, Inc. v. AOL Inc., 576 Fed. Appx. 982 at 995
(Fed. Cir. 2014). As discussed above, the claims of Eyetalk’s patents recite limitations that are
tangible and concrete and require components that are specifically programmed or configured to
carry out the claims. I/P Engine helps identify what is patentable subject matter by
demonstrating that claims that recite improvements in a field of technology using tangible
machine-based solutions, as opposed to usurping the entire field of technology themselves, are
patent eligible. CPI’s primary argument is that the claims of the patents-in-suit recite generic
components only, but that argument fails in view of the claims themselves which require
machines (computerized controller and video camera) which are specially programmed and
configured to meet the claims.
In Digitech, the Federal Circuit instructed Courts to “examine the claim as a whole”
instead of only reviewing one claim limitation. Digitech Image Techs., LLC v. Electronics for
Imaging, Inc., 758 F.3d 1344 at 1350 (Fed. Cir. 2014). In Digitech, the Federal Circuit decided
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the claim related to “an abstract idea because it describes a process of organizing information
through mathematical correlations and is not tied to a specific structure or machine.” Id. To
clarify, the Federal Circuit further explained that “[w]ithout additional limitations, a process that
employs mathematical algorithms to manipulate existing information to generate additional
information is not patent eligible.” Id. at 1351. Thus, the claim at issue in the Digitech case
merely recited mathematical algorithms which were not tied to any specific structure or machine,
and these types of claims have long been the subject of scrutiny under Section 101. Eyetalk’s
patents in this present matter are both tied to a number of machines and do not claim any
mathematical algorithms.
Finally, in DDR Holdings, the Federal Circuit held that the claims did not recite an
abstract idea and then discussed the keys to identifying abstract ideas:
Although the Supreme Court did not “delimit the precise contours of the ‘abstract
ideas’ category” in resolving Alice, 134 S. Ct. at 2356-57, over the course of
several cases the Court has provided some important principles. We know that
mathematical algorithms, including those executed on a generic computer, are
abstract ideas. See Benson, 409 U.S. at 64. We know that some fundamental
economic and conventional business practices are also abstract ideas. See Bilski,
130 S. Ct. at 3231 (finding the “fundamental economic practice” of hedging to be
patent ineligible); Alice, 134 S. Ct. at 2356 (same for intermediated settlement).
DDR Holdings, LLC, 773 F.3d at 1256. The Federal Circuit further explained the claims at issue
and made clear that the claims were “rooted” in computer technology, much like Eyetalk’s
patents:
As an initial matter, it is true that the claims here are similar to the claims in the
cases discussed above in the sense that the claims involve both a computer and the
Internet. But these claims stand apart because they do not merely recite the
performance of some business practice known from the pre-Internet world along
with the requirement to perform it on the Internet. Instead, the claimed solution is
necessarily rooted in computer technology in order to overcome a problem
specifically arising in the realm of computer networks.
Id. at 1257.
Case 3:14-cv-00526-FDW-DSC Document 27 Filed 02/12/15 Page 17 of 21
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One of the claims at issue in DDR Holdings reads as follows:
13. An e-commerce outsourcing system comprising:
a) a data store including a look and feel description associated with a host web
page having a link correlated with a commerce object; and
b) a computer processor coupled to the data store and in communication through
the Internet with the host web page and programmed, upon receiving an
indication that the link has been activated by a visitor computer in Internet
communication with the host web page, to serve a composite web page to the
visitor computer wit[h] a look and feel based on the look and feel description in
the data store and with content based on the commerce object associated wit[h]
the link.
The Federal Circuit found that even though this claim primarily relates to a data store, which is
arguably abstract in nature, the claim is “rooted” in technology and machines by explaining how
a computer/machine can practice the invention and, thus, the Federal Circuit found that this
claim did not embody an abstract idea. However, the Eyetalk patents, when compared to the
claims in the DDR Holdings case, recite much more detail of how machines are to practice the
invention and do not recite any abstract concept.
It can thus be seen that a review of the controlling case law on Section 101 motions after
Alice clearly demonstrates how the Supreme Court and Federal Circuit approach these motions.
In addition, such a review helps to explain which kind of claims (financial or human-based
claims) have been found to be abstract. Eyetalk’s claims are distinctly different from the claims
the Supreme Court and Federal Circuit have found ineligible for patent protection.
In its brief, CPI also cites to nine Section 101 cases from other district courts, with little
to no analysis at all, as allegedly supporting its argument, none of those cases involve analogous
technology or claims and a specification that is as clearly not abstract as found in the Eyetalk
patents in suit. Moreover, a review of those cases with an understanding of the precedential case
law from the Supreme Court and Federal Circuit clearly demonstrates that none of them suggest
Case 3:14-cv-00526-FDW-DSC Document 27 Filed 02/12/15 Page 18 of 21
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a different result under the facts before this Court. Thus, while many of those decisions are
likely going to be reviewed by the Federal Circuit, and may in fact, be reversed as contrary to
that court’s guidance, the reasoning they provide does not alter the outcome here.
C. Even If the Patents-in-Suit Did Embody Abstract Ideas (Which They Do
Not), the Claims Recite an Inventive Concept Within the Surveillance
Industry and Are Thus Patentable.
It is very clear that the claims of the Eyetalk patents are not directed to an abstract
concept and CPI’s attempt to rewrite the patents requires ignoring the plain language of the
claims and the specification. Nonetheless, even assuming arguendo that CPI was correct and the
Eyetalk patents did claim an abstract concept, the Alice decision and all subsequent precedential
decisions make clear that even claims that appear abstract may be patentable if they cover an
“inventive concept.” The Federal Circuit in DDR Holdings provided come guidance for this
analysis. Despite finding the claims in that case did not cover an abstract concept, the claims did
describe certain features of the claims that amount to an “inventive concept” to solve a problem
specifically in the field of computer networks.
It is also clear that the claims at issue do not attempt to preempt every application
of the idea of increasing sales by making two web pages look the same, or of any
other variant suggested by NLG. Rather, they recite a specific way to automate
the creation of a composite web page by an “outsource provider” that incorporates
elements from multiple sources in order to solve a problem faced by websites on
the Internet. As a result, the ‘399 patent’s claims include “additional features” that
ensure the claims are “more than a drafting effort designed to monopolize the
[abstract idea].” Alice, 134 S. Ct. at 2357. In short, the claimed solution amounts
to an inventive concept for resolving this particular Internet-centric problem,
rendering the claims patent-eligible.
DDR Holdings, LLC, 773 F.3d at 1259.
The Eyetalk patents do not preempt the entire field of remote surveillance, as CPI
contends, but rather the claims, which are performed only by machines, set forth unique tangible
solutions to specific problems, using specially programmed machines to carry out the tasks. See
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Section V.A supra.4 As a result and assuming arguendo, that Eyetalk’s patents cover an abstract
idea there are more than enough “additional features” in the claims to render them patentable,
because the claims specifically require much more machine functionality than simply observing
someone at an entrance. Alice, 134 S. Ct. at 2357.
VI. CONCLUSION
The patents-in-suit recite patentable subject matter and it is unclear how CPI can even
attack this premise given a quick review of the claims. Because the claims of the patents-in-suit
are “rooted” in a technological field and require a plurality of machines to perform the invention,
the patents contain patentable subject matter and CPI’s motion should be denied.
4 If the Court nonetheless finds that any claim in the patents-in-suit is abstract, Eyetalk respectfully
requests discovery to proceed so that the parties can develop the record regarding whether the claims
“preempt” the field and to introduce expert testimony on the state of the art at the time the original patent
application was filed and the relative novelty of the claimed invention.
Case 3:14-cv-00526-FDW-DSC Document 27 Filed 02/12/15 Page 20 of 21
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Respectfully submitted,
Date: February 12, 2015 FARNEY DANIELS PC
/s/ Steven R. Daniels
Steven R. Daniels, Pro Hac Vice
FARNEY DANIELS PC
800 South Austin Avenue, Suite 200
Georgetown, Texas 78626
Telephone: (512) 582-2828
Facsimile: (512) 582-2829
sdaniels@farneydaniels.com
David C. Boggs, NCSB #8182
david.boggs@wishartnorris.com
June K. Allison, NCSB #9673
june.allison@wishartnorris.com
WISHART NORRIS HENNINGER
& PITTMAN, P.A.
6832 Morrison Boulevard
Charlotte, North Carolina 28211
Telephone: (704) 364-0010
Facsimile: (704) 364-0569
Attorneys for Plaintiff
EYETALK365, LLC
CERTIFICATE OF SERVICE
The undersigned hereby certifies that counsel of record who are deemed to have
consented to electronic service are being served with a copy of Plaintiff’s Memorandum in
Opposition to Defendant’s Motion for Judgment on Pleadings, via electronic mail on February
12, 2015.
/s/ Steven R. Daniels____
Steven R. Daniels
Case 3:14-cv-00526-FDW-DSC Document 27 Filed 02/12/15 Page 21 of 21
Krysti,
That is an interesting point..
Posted by RobStocks88:
LVGI COMPLETE DD !!MUST READ!! 2/10/15
I've compiled a list of what we have had happen sense the removal of the lock. Showing just how hard Joe is working!
Nov 11, 2014 - LOCK REMOVED http://finance.yahoo.com/news/limitless-venture-group-inc-lvg-190700180.html
Dec 9, 2014 - Financials updated removing the stop sign from otcmarkets site. http://finance.yahoo.com/q/is?s=lvgi
Dec 22, 2014 - First Taste testing complete "HERE ARE THE INITIAL RESULTS OF THE TASTE TEST:
Cojak: sample number 2 was best
Haymaker: sample number 2 was best
Tijuana: sample number 2 but needs touch more lime flavor and touch more sweetness
Pink Panther: sample number 1 was best but had reports of slight "cough syrup" taste
Red Headed Slut: sample number 4 was best but had reports of slight "cough syrup" taste"
https://groups.google.com/forum/#!topic/limitless-venture-group/Q-_Ad2SrnGI
Jan 19, 2015 - Announces Signing of the SLAM Bottling Agreement With Temperance Distilling http://finance.yahoo.com/news/limitless-venture-group-inc-announces-180016020.html
Jan 21, 2015 - Joe confirms O/S not changed "The current O/S is the SAME as it was in our fiscal year end, 6/30/14, 2.4 billion. NO shares have been issued since before the Global Lock. " https://groups.google.com/forum/#!topic/limitless-venture-group/ioA-5LfxFVk
Jan 27, 2015 - Temperance Distilling tweets about working with slam CONFIRMING that bottling is no joke. They also posted this on their Facebook page
Excited for our future with SLAM Beverage http://t.co/MINPQwwGJQ pic.twitter.com/WCZF2Twd4d
— TemperanceDistilling (@USATDC) January 27, 2015
Hi Struk, May want to take a look at LVGI.. it appears to be setting up nicely chart wise and news wise.. acquisition in the works, product hitting shelves soon, etc
If nobody has bought the company yet then I doubt they will during the pending court cases. How many companies would take on $4M plus in liabilities for a company that has no product, no revenues, and no chance if they lose/drop the patent cases?
If there was a mega company with a pending buyout lurking in the waters then why procure Eyetalk365's 'services' for 60% of everything? For 10 years now shareholders have been funding the REVO debt machine for services via convertible notes. So now that OUR pps is in the gutter and (most of) the converters are satisfied NOW we are going to give up 60% of what we are potentially worth to a mystery non-public company? Add another zero transparency move to the list..
The truth does indeed always trump fiction. And until the court upholds the REVO 'truth' I can only go by CURRENT public info. The company no longer files publicly. Scratch that source. It skips ahead to future periods and issues revenue projections via youtube videos. They have a consistent history of issuing inflated PRs that never seem to materialize. It seems I am not the only one that sees the red flags waving. PPS is flirting with all time lows on next-to-zero volume. Please excuse my cynicism.
I completely agree the patents COULD be valuable and I have no plan to sell my shares until one of our proposed truths is revealed. I think we need to look at the whole story and REVO's track record before we start touting our victory and leading people into thinking this is an open and shut case
This company's potential revenue is now solely dependent on the patent infringement cases via the court system. This new business model will be painfully slow to play out, if successful. May want to take up a new hobby to stay sane in the meantime..
locked! Looking at my order preview and seeing how much I would get at that price was a nice fantasy
Wow this might be the best day in REVO history... 100 volume, that means nobody is selling folks! eh, uh, right?!?!
I've seen many bigger 'turds' floating around in sub-penny land.. I'll take my chances
Great find! I hope you're right
LVGI LVGI LVGI
Yeah I'm sure it's the same one deleting all our posts calling out the responsible party. Credibility is now in question after such hypocrisy