EcoServices, LLC v. Certified Aviation Services, LLC

NOTICE OF MOTION AND MOTION for Judgment of Patent Ineligibility of the '262 Patent

C.D. Cal.July 25, 2018

DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MAYER BROWN LLP Dale J. Giali (SBN 150382) dgiali@mayerbrown.com 350 South Grand Avenue, 25th Floor Los Angeles, CA 90071-1503 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 Stephen E. Baskin (pro hac vice) sbaskin@mayerbrown.com Dara M. Kurlancheek (pro hac vice) dkurlancheek@mayerbrown.com Canek Acosta (SBN 301901) cacosta@mayerbrown.com 1999 K Street, N.W. Washington, DC 20006 Telephone: (202) 263-3000 Facsimile: (202) 263-3300 Gregory J. Apgar (pro hac vice) gapgar@mayerbrown.com 1221 Avenue of the Americas New York, NY 10020 Telephone: (212) 506-2500 Facsimile: (212) 262-1910 Attorneys for Defendant/Counter-Plaintiff Certified Aviation Services, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION ECOSERVICES, LLC, Plaintiff, v. CERTIFIED AVIATION SERVICES, LLC, Defendant. Case No. 5:16-cv-01824-RSWL-SP DEFENDANT’S MOTION FOR JUDGMENT OF PATENT INELIGIBILITY OF THE ’262 PATENT Trial Date: June 26, 2018 Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 1 of 30 Page ID #:16447 i DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Statement Of Facts..................................................................................................... 1 A. The ’262 Patent........................................................................... 1 B. Legal framework......................................................................... 3 Argument ................................................................................................................... 4 I. Claims 1, 9, And 14 Are Ineligible For Patenting. ............................... 4 A. Step One: The claims are directed to the abstract idea of automating a known engine washing process. ........................... 4 1. The bare idea of automating a process is an ineligible abstract idea...................................................... 5 2. The asserted claims are directed to automating the conventional process of washing engines. ....................... 9 3. The claims recite only a generic means of accomplishing the automation........................................10 B. Step Two: The claims recite no inventive concept...................18 Conclusion ...............................................................................................................23 Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 2 of 30 Page ID #:16448 ii DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases Affinity Labs of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253 (Fed. Cir. 2016) ...........................................................8, 10, 11, 14 Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014) .................................................................................passim Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229 (Fed. Cir. 2016) .............................................................5, 8, 11, 21 Bancorp Servs., LLC v. Sun Life Assurance Co. of Can., 687 F.3d 1266 (Fed. Cir. 2012) ............................................................................. 7 BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341,1350 (Fed. Cir. 2016) ......................................................19, 20, 21 Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018) ............................................................................. 3 buySAFE, Inc. v. Google, Inc., 765 F.3d 1350 (Fed. Cir. 2014) ........................................................................... 15 DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014) ...........................................................6, 18, 19, 20 Dealertrack, Inc. v. Huber, 674 F.3d 1315 (Fed. Cir. 2012) ............................................................................. 7 Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016) ...................................................................6, 8, 18 Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016) .....................................................................18, 19 Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299 (Fed. Cir. 2018) ............................................................................. 5 Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 3 of 30 Page ID #:16449 TABLE OF AUTHORITIES (continued) Page(s) iii DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363 (Fed. Cir. 2015) ....................................................................passim Intellectual Ventures I LLC v. Erie Indem. Co., 711 F. App’x 1012 (Fed. Cir. 2017)...................................................................... 7 Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315 (Fed. Cir. 2017) ............................................................................. 4 Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343 (Fed. Cir. 2015) ......................................................................... 4, 8 Interval Licensing LLC v. AOL, Inc., et al., No. 2016-2502, 2018 WL 3485608 (Fed. Cir. July 20, 2018).......................... 5, 6 Maxon, LLC v. Funai Corp., Inc., 726 F. App’x 797 (Fed. Cir. 2018)...................................................................... 15 McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016) ...............................................................5, 7, 8, 10 Mortg. Grader, Inc. v. First Choice Loan Serv. Inc., 811 F.3d 1314 (Fed. Cir. 2016) ........................................................................... 15 OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359 (Fed. Cir. 2015) ....................................................................passim RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322 (Fed. Cir. 2017) ............................................................................. 8 SAP Am., Inc. v. InvestPic, LLC, 890 F.3d 1016 (Fed. Cir. 2018) ............................................................................. 8 In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607 (Fed. Cir. 2016) .....................................................................6, 8, 15 Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329 (Fed. Cir. 2017) ............................................................................. 8 Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014) .................................................................10, 22, 23 Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 4 of 30 Page ID #:16450 TABLE OF AUTHORITIES (continued) Page(s) iv DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Wyeth v. Stone, 30 F. Cas. 723 (C.C.D. Mass. 1840) ..................................................................... 6 Statutes 35 U.S.C. § 101.................................................................................................1, 3, 23 Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 5 of 30 Page ID #:16451 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to the Court’s minute entry (Dkt. 253), Defendant Certified Aviation Services (“CAS”) respectfully moves for judgment that claims 1, 9, and 14 of U.S. Patent 9,162,262 (“the ’262 Patent”) (JX2) are ineligible under 35 U.S.C. § 101 for claiming an abstract idea. STATEMENT OF FACTS Plaintiff EcoServices, LLC (“EcoServices”) alleges that CAS infringes claims 1, 9, and 14 of the ’262 Patent. Dkt. 1. CAS’s Answer included an affirmative defense and counterclaim that the asserted claims are ineligible for patenting under 35 U.S.C. § 101. Dkt. 13 at 7, 13-14. Because patent eligibility is a question of law that may contain underlying issues of fact, the parties agreed that the ineligibility issue would be tried to the Court. Dkt. 164 at 25. The Court’s Final Pretrial Conference Order identified the issue of “[w]hether the ’262 Patent is directed to unpatentable subject matter” as an issue for trial. Dkt 209. The Court conducted a jury trial on various issues other than the ineligibility defense and counterclaim. Dkt. 245-46, 250, and 252-53. On July 2, the jury returned a verdict of infringement and non-obviousness in favor of EcoServices. Dkt. 253. The Court then instructed. CAS to file briefing on the remaining issues, including “the 101” issue, by July 25, 2018. Dkt. 253; Trial Tr. 7/2/2018 at 146:13-15. A. The ’262 Patent. The ’262 Patent “relates to systems and methods for cleaning turbine engines” of aircraft. ’262 Patent at 1:17-19. The Patent explains that, “[a]fter a period of operation of an aircraft gas turbine engine,” various components of the engine become dirty and need to be cleaned. Id. at 1:52-2:19. It further explains that “a number of cleaning or washing techniques have been developed.” Id. at 2:23-24. For example, prior art systems used “a cleaning device comprising … nozzles arranged on a stiff manifold, which … [was] mounted on the air inlet of the engine, and where the nozzles [were] arranged to … direct cleaning liquid in the air stream up-stream of a fan of the engine.” Id. at 2:29-34. Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 6 of 30 Page ID #:16452 2 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Because each type of engine had slightly different washing requirements, “[a] specific … washing configuration [was] prepared for each specific engine, and nozzle positions are optimized to achieve effective cleaning.” Id. at 2:46-49. Thus, “[w]hen an aircraft engine [was] to be washed, … an operator [was] provided with information regarding the engine type” and “with information regarding the requirements for washing that particular engine type, such as maximum water flow per time unit and the total amount of washing water.” Id. at 3:38-52. “The operator [would] then manually set[] the valves to the manifold nozzles in order to obtain the appropriate pressure and flow and keep[] track of the washing time.” Id. at 3:52-55. The inventors of the ’262 Patent observed that, “[s]ince this part of the washing operation is done manually[,] there is always a risk that the human factor jeopardizes the result.” Id. at 3:56-58. “If the requirements regarding the particular engine are not followed,” they explained, “the engine may be damaged” or “the result of the washing procedure is inferior.” Id. at 3:60-64. The inventors concluded that “[i]t would therefore be beneficial … if the influence of the human factor is minimized as much as possible.” Id. at 3:65-67. And they set out “to provide a system and method that can … minimize the risk of wrongly operating the equipment.” Id. at 4:11-14. Claim 1 recites their purported invention-(1) a “washing unit” to provide washing liquid, (2) an “information detector” to determine the engine type, and (3) a “control unit” to operate the washing unit according to the washing program corresponding to that engine type: 1. A system for washing turbine engines comprising: a washing unit for providing a washing liquid to the turbine engines; an information detector configured to gather information related to engine type; and a control unit configured to accept the information Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 7 of 30 Page ID #:16453 3 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 related to engine type from the information detector and to determine a washing program to be used as a function of the information relating to engine type from a set of preprogrammed washing programs, and further configured to regulate the washing unit according to washing parameters associated with the washing program used. Id. at 8:35-47. Independent claim 14 is substantially identical to claim 1 (id. at 10:15-26), and dependent claim 9 adds that the control unit regulates the “washing time” (id. at 9:11-13). According to EcoServices, “the claimed ‘control unit’ … is a computer.” Dkt. 150 at 1-2. And the “information detector” is any interface, such as a “keypad.” Id. at 1; see also id. at 4; Trial Tr. 6/27/18 at 155:6-17, 156:1-11 (EcoServices’s expert opining that the “control unit” is a “unit” that controls the wash and the “information detector” is a keypad). Regarding the “washing unit,” the specification discloses that, “[i]n one embodiment,” the washing unit comprises various generic components-such as “a manifold,” “tube-like structures,” and a “pumping system”-but the specification does not limit the “washing unit” to that “one embodiment.” ’262 Patent at 5:14-22. The Patent declares that “the present invention provides for a higher degree of safety and quality regarding wash results in that the washing system is automated.” Id. at 4:42-46. B. Legal framework. Under Section 101 of the Patent Act, an “abstract idea” is ineligible for patenting. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2354 (2014). Patent eligibility is a question of law that may contain underlying issues of fact. Berkheimer v. HP Inc., 881 F.3d 1360, 1365 (Fed. Cir. 2018). The Supreme Court has prescribed a two-step framework for determining Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 8 of 30 Page ID #:16454 4 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 whether a claim is invalid for claiming an abstract idea. Alice, 134 S. Ct. at 2355. The first step requires considering the claim “in [its] entirety to ascertain whether [its] character as a whole is directed to” an abstract idea. Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015). In performing this step, the Court may look to “the heart of the claimed invention.” Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315, 1328 (Fed. Cir. 2017) At the second step of the inquiry, a claim “directed to” an abstract idea may nevertheless be eligible if it recites an “inventive concept.” Alice, 134 S. Ct. at 2355. The claim contains such a concept if its elements, considered “both individually and as an ordered combination[,] … transform the nature of the claim into a patent-eligible application.” Alice, 134 S. Ct. at 2355 (internal quotation marks omitted). ARGUMENT I. Claims 1, 9, And 14 Are Ineligible For Patenting. The asserted claims of the ’262 Patent are ineligible because (1) they are directed to the abstract idea of automating a conventional engine washing process, and (2) they fail to recite any specific method or machine that could constitute an “inventive concept” for achieving the automation. A. Step One: The claims are directed to the abstract idea of automating a known engine washing process. The abstract idea of automating a known process is not eligible for patent protection. Only particular methods or machines for accomplishing the automation are. Here, the asserted claims are “directed to” the abstract idea of automating the known engine washing process described in the specification’s Background section, not to any specific method or machine for accomplishing that automation. The claims recite only the conventional method of washing engines and a generic “system” for automating that method. But the system comprises only generic, functionally-defined components common to all “systems” for automating the Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 9 of 30 Page ID #:16455 5 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 washing process-i.e., a “washing unit” for providing washing liquid, an “information detector” (keypad) for selecting the wash; and a “control unit” (computer) for performing it. The claims thus preempt the idea of automating the known process, and they are therefore ineligible. 1. The bare idea of automating a process is an ineligible abstract idea. Automation is the classic example of an ineligible abstract idea-the bare idea of using a generic machine “to perform routine tasks more quickly or more accurately” cannot be patented. OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015). The idea of automation is ineligible because, by itself, it is only a result, not an inventive process or machine that achieves that result. “The abstract idea exception prevents patenting a result where it matters not by what process or machinery the result is accomplished.” McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1312 (Fed. Cir. 2016) (internal citation omitted). Thus, “a claim that merely describes an effect or result, dissociated from any method by which it is accomplished is not directed to patent-eligible subject matter.” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1244 (Fed. Cir. 2016) (internal quotation marks omitted). The bar on patenting results is a “foundational patent law principle.” Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1305 (Fed. Cir. 2018). Indeed, it has been at the heart of the abstract idea exception for centuries. See Interval Licensing LLC v. AOL, Inc., et al., No. 2016-2502, 2018 WL 3485608, at *5 (Fed. Cir. July 20, 2018) (tracing the prohibition on patenting results to at least 1840). The underlying concern of this exclusionary principle is preemption. While “patenting a particular solution would incentivize further innovation in the form of alternative methods for achieving the same result,” patenting the result itself “would inhibit innovation by prohibiting other inventors from developing their own Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 10 of 30 Page ID #:16456 6 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 solutions to the problem.” Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1356 (Fed. Cir. 2016) (internal punctuation omitted). From the earliest eligibility cases, courts have consistently treated the idea of automating a known process as an ineligible result. Accentuating that point, the Federal Circuit’s most recent eligibility decision illustrates the prohibition against patenting results by reference to the 1840 case of Wyeth v. Stone, 30 F. Cas. 723 (C.C.D. Mass. 1840), which invalidated a claim directed to the idea of automating an ice-cutting process. See Interval Licensing, No. 2016-2502, 2018 WL 3485608, at *5. There, Justice Story held that a claim to “cutting ice by means of any power, other than human power”-i.e., automated ice cutting-was “utterly unmaintainable” because it was “not for any particular method or machinery, by which ice is to be cut.” Id. “No man,” he explained, “can have a right to cut ice by all means and methods.” Id. In contrast, he upheld the eligibility of another claim “for the particular apparatus and machinery to cut ice.” Id. The Federal Circuit’s modern eligibility decisions have continued to stress that the bare idea of automating a conventional process using generic machinery is abstract. The most familiar application of that principle is that the idea of automating a conventional process using a generic computer is abstract. The opinions so holding are legion.1 For example, the Federal Circuit held in OIP that 1 See, e.g., Alice, 134 S. Ct. at 2359 (“simply instruct[ing] the practitioner to implement the abstract idea … on a generic computer” does render a claim patent eligible); In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 612 (Fed. Cir. 2016) (“simply adding conventional computer components” to an abstract idea does not confer eligibility); OIP Techs., 788 F.3d at 1363 (“relying on a computer to perform routine tasks more quickly or more accurately is insufficient to render a claim patent eligible”); Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015) (“our precedent is clear that merely adding computer functionality to increase the speed or efficiency of the process does not confer patent eligibility on an otherwise abstract idea.”); DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (“after Alice, there can remain no doubt: recitation of generic computer limitations does not make an Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 11 of 30 Page ID #:16457 7 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “the automation of [a] fundamental economic concept” by a generic computer is ineligible because “relying on a computer to perform routine tasks more quickly or more accurately is insufficient to render a claim patent eligible.” OIP, 788 F.3d at 1363. Similarly, it held in Intellectual Ventures I that automation of a conventional budgeting process by a generic computer is ineligible because “our precedent is clear that merely adding computer functionality to increase the speed or efficiency of the process does not confer patent eligibility.” 792 F.3d at 1370. These opinions are straightforward applications of Alice, which itself held that automation of a conventional settlement process using generic computers is ineligible. Alice, 134 S. Ct. at 2352. “[T]he fact that the required calculations could be performed more efficiently via a computer does not materially alter the patent eligibility” analysis. Bancorp, 687 F.3d at 1278. Neither does the fact that the method could be performed “more accurately.” OIP, 788 F.3d at 1363; accord Intellectual Ventures I LLC v. Erie Indem. Co., 711 F. App’x 1012, 1017 (Fed. Cir. 2017) (“[S]peed and accuracy increases stemming from the ordinary capabilities of a general-purpose computer do not materially alter the patent eligibility” analysis.). The jurisprudence from Wyeth to the modern day thus illustrates the fundamental principle that the idea of automating a conventional process “using any existing or future-devised machinery” is ineligible. Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1334 (Fed. Cir. 2012). Patent law does not protect the idea of automating a process. Rather, it protects only the inventive means (i.e., particular structures or processes) that achieve the automation. See McRO, 837 F.3d at 1313. Where a claim is directed to automation then, courts must “look to whether the claims in the patent focus on a specific means or method” of accomplishing the otherwise ineligible claim patent-eligible”); Bancorp Servs., LLC v. Sun Life Assurance Co. of Can., 687 F.3d 1266, 1278 (Fed. Cir. 2012) (“the fact that the required calculations could be performed more efficiently via a computer does not materially alter the patent eligibility of the claimed subject matter”). Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 12 of 30 Page ID #:16458 8 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 automation, or “are instead directed to a result or effect that itself is the abstract idea”-here, automation-“and merely invokes generic process and machinery.” McRO, 837 F.3d at 1314.2 Claims “defining a desirable … result and not limited to inventive means of achieving the result, fail under § 101.” Elec. Power Grp., 830 F.3d at 1351. The Supreme Court has cautioned courts undertaking this inquiry to beware of deceptive “drafting effort[s],” such as the addition of “generic” components common to all solutions. Alice, 134 S. Ct. at 2357. Even claims that recite “concrete, tangible components” are ineligible if “the physical components merely provide a generic environment in which to carry out the abstract idea.” In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016). Again, the most common example of physical components that provide a “generic environment” are conventional computer components. See supra n.1. In sum, the bare idea of automation-i.e., that of using a generic machine “to perform routine tasks more quickly or more accurately”-is ineligible for patenting. 2 See also SAP Am., Inc. v. InvestPic, LLC, 890 F.3d 1016, 1021-22 (Fed. Cir. 2018) (collecting cases for the proposition that the Federal Circuit has focused on whether a claim is “one claiming only a result” or instead “one claiming a way of achieving it”); Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1337 (Fed. Cir. 2017) (“We look to whether the claims in the patent focus on a specific means or method, or are instead directed to a result or effect that itself is the abstract idea and merely invokes generic processes and machinery.”); RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1326 (Fed. Cir. 2017) (“The inquiry often is whether the claims are directed to ‘a specific means or method’ for improving technology or whether they are simply directed to an abstract end- result.”); Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1244 (Fed. Cir. 2016) (“a claim that merely describes an effect or result dissociated from any method by which it is accomplished is not directed to patent-eligible subject matter”) (internal punctuation omitted); Affinity Labs of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258 (Fed. Cir. 2016) (holding claims ineligible because “nothing in claim 1 … is directed to how to implement” the invention); Internet Patents, 790 F.3d at 1348 (criticizing a claim because it “contains no restriction on how the result is accomplished”). Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 13 of 30 Page ID #:16459 9 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OIP, 788 F.3d at 1363. 2. The asserted claims are directed to automating the conventional process of washing engines. The goal of the ’262 Patent is to reduce human error by automating some parts of a conventional washing process. The record makes clear that (1) the conventional washing process required manually selecting a wash configuration corresponding the type of engine being washed, and (2) the goal of the asserted claims is to automate that selection. The ’262 Patent itself admits that the conventional washing process required a human operator to manually select a “specific design washing configuration … for each specific engine.” ’262 Patent at 2:46-49. And it describes the conventional process in detail: (1) “an operator is provided with information regarding the engine type,” (2) “[t]he operator is further provided with information regarding the requirements for washing that particular engine type,” and (3) “[t]he operator then manually sets the valves to the manifold nozzles in order to obtain the appropriate pressure and flow and keeps track of the washing time.” Id. at 3:38-64. The prior art of record confirms the Patent’s account. See, e.g., JX205.002 (describing software control of operating parameters in an automated engine washing system). The ’262 Patent also admits that the inventors’ goal was to automate this conventional process. The specification identifies the problem with the conventional techniques: it was “dependent to some extent upon an operator manually making certain adjustments and/or system settings,” and thus, “there is always a risk that the human factor jeopardizes the result.” ’262 Patent at 2:23-3:64. The specification then declares unequivocally that “the present invention provides for a higher degree of safety and quality … in that the washing system is automated.” Id. at 4:42-44 (emphasis added); see also id. at 3:65-67 (“It would therefore be beneficial … if the influence of the human factor is minimized.”). Thus, the Patent itself states that its goal is to “minimize the risk of wrongly Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 14 of 30 Page ID #:16460 10 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 operating the equipment” by automating the conventional washing process. Id. at 4:13-14. EcoServices’s position at trial fully embraces the idea that the claims are directed to automating a conventional washing process. For example, EcoServices offered in its opening argument that the invention’s goal was to “take some of that inconsistency that [was] caused by the operators out of the washes.” Trial Tr. 6/26/18 at 45:8-25. Its expert then testified that the purpose of the ‘262 Patent is to “mitigate or eliminate the human error” through automation, “an automatic detection and control system for doing the water wash.” Trial Tr. 6/27/18 at 151:19- 152:8. Thus, there is no dispute that the goal of the invention was to automate the conventional washing process. 3. The claims recite only a generic means of accomplishing the automation. Because the goal of the claimed system is to automate the conventional engine washing process, the claims are eligible only if they recite some inventive means-whether method or machine-for accomplishing that automation. But they recite neither. 1. A claim may be eligible if it recites a new method of automating a human function (see McRO, 837 F.3d at 1313), but not if it merely “claims the function” itself rather than “a particular way of performing that function.” Affinity Labs, 838 F.3d at 1258. In other words, claim “[s]teps that do nothing more than spell out what it means to” perform the function being automated cannot confer eligibility. Intellectual Ventures I, 792 F.3d at 1370; see also Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) (“steps compris[ing] the abstract concept” itself do not confer eligibility). The Federal Circuit’s decision in Affinity Labs is illustrative. See 838 F.3d 1253. The claim there recited a “system” for disseminating regionally broadcast content to users outside the region. Id. at 1256. The “system” executing on a mobile Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 15 of 30 Page ID #:16461 11 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 phone to (1) display a list of channels, (2) request a channel, and (3) receive the channel while the phone was outside of the local broadcasting area. Id. at 1255-56. The claim was ineligible because it merely “claim[ed] the function of wirelessly communicating regional broadcast content to an out-of-region recipient, not a particular way of performing that function.” Id. at 1258. The Federal Circuit concluded that “[t]here is nothing in claim 1 that is directed to how to implement out-of-region broadcasting on a cellular telephone. Rather, the claim is drawn to the idea itself.” Id. The claims here are likewise not directed at how to automate the conventional washing process. They merely spell out the steps of that conventional process and say “automate it.” As discussed above, the Patent describes the three steps conventionally performed by human wash operators: (1) “an operator is provided with information regarding the engine type,” (2) “[t]he operator is further provided with information regarding the requirements for washing that particular engine type,” and (3) “[t]he operator then manually sets the valves to the manifold nozzles in order to obtain the appropriate pressure and flow and keeps track of the washing time.” ’262 Patent at 3:38-64. These are exactly the same three steps performed by the claimed “system,” which (1) “gather[s] information related to engine type,” (2) “determine[s] a washing program to be used as a function of … [the] engine type,” and (3) “regulate[s] the washing unit according to … the washing program.” Id. at 8:35-47 (claim 1); see also Trial Tr. 6/27/18 at 152:9- 153:21 (EcoServices’s expert describing the functions the system performs) Because the claimed “system” performs exactly the same washing method as did the human operator, it does not disclose a new method for automating that process. Instead, it simply spells out the steps of the conventional process and says “do it on a machine.” See Apple, 842 F.3d at 1243 (“[i]t is not enough to point to conventional applications and say ‘do it on a computer.’”). Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 16 of 30 Page ID #:16462 12 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Nor are the claims directed to any new machine for performing the conventional engine washing process. Instead, the claims recite only a generic “system,” comprising three generic components, each defined only by the function of the conventional process it performs: the “washing unit” is anything that “provide[es] a washing liquid” (’262 Patent at 8:36-38), the “information detector” is anything that “gather[s] information related to engine type” (id. at 8:39-40), and the “control unit” is anything that “determine[s] a washing program” and “regulate[s] the washing unit” according to that program (id. at 8:41-47). In other words, each generic component is defined only functionally. The record confirms that each of the three claimed components is entirely generic. Washing unit. The record confirms that the recited “washing unit” is a generic, functionally-defined component satisfied by anything that “provid[es] a washing liquid to the turbine engines.” ’262 Patent at 8:36-38. The specification provides no limitation on the washing unit beyond its recited function. Although the specification discloses that, “in one embodiment,” the washing unit could include some conventional components-e.g., “a manifold,” “tube-like structures,” and a “pumping system”-the specification does not limit the “washing unit” to that one disclosed embodiment. Id. at 5:14-22. Thus, any other device that performs the recited function of “providing a washing liquid” could be a “washing unit.” Id. at 8:37-38. Even if the washing unit were limited to the disclosed “one embodiment,” that embodiment is itself generic because it merely includes some conventional components, tubes and pumps, in no particular configuration. Indeed, the Patent’s Background section discloses that conventional “washing units” used exactly the same components. See id. at 2:29-34 (describing an existing “cleaning device comprising a plurality of nozzles arranged on a stiff manifold, which … is releasibly mounted on the air inlet of the engine, and where the nozzles are Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 17 of 30 Page ID #:16463 13 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arranged to … direct cleaning liquid into the air stream”). The specification does not disclose that the claimed “washing unit” arranged these components in some new and unconventional way as to affect an improvement to conventional “washing unit[s],” and neither does the trial record. Indeed, the trial record only confirms that the “washing unit” is functionally defined. EcoServices’s infringement case rested entirely on that assumption. For example, its expert testified that a “washing unit” is simply something that “provides washing liquid to the turbine engines.” Trial Tr. 6/27/2018 at 152:9-13. And he testified that the accused device includes a washing unit because it performs a washing function, not because it included any particular components: “it’s very obviously for washing turbine engines and very obviously has some sort of washing unit to wash turbine compressors.” Trial Tr. 6/27/2018 at 154:10-20. Thus, all this claim element requires is “some sort of washing unit.” Id. Accordingly, there can be no dispute that the recited “washing unit” is generic. It is a functionally-defined element satisfied by anything that can “provid[e] a washing liquid to the turbine engines.” ’262 Patent at 8:37-38. Information detector. Given the Court’s claim construction of plain and ordinary meaning and EcoServices’s interpretation thereof at trial, the recited “information detector” is likewise a generic, functionally-defined component that cannot limit the claims to any particular machine. During claim construction, EcoServices successfully argued for a broad construction of “information detector” that did not require the detector to read any “information unit.” See Dkt. 80 at 11-12. CAS had argued that the “information detector” must “detect from an information unit” from the engine itself and “emit a signal in response.” Dkt. 75 at 8-9. But EcoServices objected that “[n]othing in the intrinsic evidence limits the ‘information detector’ to detecting information from an information unit and emitting a signal in response.” Dkt. 74 at 9; see also Dkt. 76 at 9 (“Nothing in the language of claims 1 and 14 requires, mentions, or implies that Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 18 of 30 Page ID #:16464 14 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ‘information unit’ must be part of or accounted for in the claimed ‘information detector.’”). And the Court held that “[n]othing in the claim language, specification, or prosecution history show that ‘information detector’ must be given a narrow definition as Defendant has proposed.” Dkt. 80 at 11-12. Subsequently, EcoServices argued that the recited “information detector” includes any interface, even a keypad. For example, it argued in opposition to summary judgment that the claimed system could “include[] an information detector that was a human machine interface (i.e., a keypad).” Dkt. 150 at 1; see also id. at 4. Indeed, that was the infringement theory EcoServices ultimately settled on- that the accused “Cyclean system keypad is the claimed information detector.” Id. at 1. It argued that “[t]he keypad detects the user’s input related to an engine and is therefore an ‘information detector configured to gather information related to engine type.’” Id. at 6; see also Dkt. 146-6 at 84 (EcoServices’s expert opining that “there is no reason for CAS to interpret an ‘information detector’ to exclude a keypad detecting input information.”). Consistent with this infringement theory, EcoServices’s expert testified at trial that the accused product includes an “information detector” in the form of a “keypad” used by an operator to select the type of engine to wash. Trial Tr. 6/27/2018 at 155:6-17. He told the jury that a keypad is an “information detector” because it “detects what’s being pressed.” Id. Thus, EcoServices’s position is that an “information detector” is any interface, including a keypad. The broad reading EcoServices advanced for purposes of infringement renders the “information detector” necessarily generic for purposes of eligibility. The case law is emphatic that a generic “interface,” like a keypad, is not the type of element that could direct a claim to eligible subject matter. See, e.g., Affinity Labs, 838 F.3d at 1270 (holding that claims reciting a “graphical user interface” are ineligible because an interface is “simply [a] generic description[] of [a] well- Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 19 of 30 Page ID #:16465 15 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 known computer component[]”); Intellectual Ventures I, 792 F.3d at 1370 (holding that claims reciting an “interactive interface” are ineligible because “the interactive interface limitation is a generic computer element” that “does not suggest an inventive concept”); see also Mortg. Grader, Inc. v. First Choice Loan Serv. Inc., 811 F.3d 1314, 1324-25 (Fed. Cir. 2016) (holding that claims reciting an “interface” are nevertheless directed to an abstract idea); Maxon, LLC v. Funai Corp., Inc., 726 F. App’x 797, 799 (Fed. Cir. 2018) (same). EcoServices infringement position at trial-that the “information detector” element is satisfied by a keypad-confirms that the component is entirely generic. A keypad is a conventional computer component, and it is well-settled that “simply adding conventional computer components” to an abstract idea does not confer eligibility. TLI, 823 F.3d at 611; see also Mortgage Grader, 811 F.3d at 1324-25 (claims reciting generic computer components were nevertheless directed to the abstract idea of “loan shopping”); Intellectual Ventures I, 792 F.3d at 1367-69 (claims reciting generic computer components were nevertheless directed to the abstract idea of financial budgeting); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (claims reciting generic computer components were nevertheless directed to the abstract idea of “creating familiar commercial arrangements”). In sum, the broad interpretation of “information detector” that EcoServices sought, and obtained, renders that component entirely generic. It is a generic “interface” or, at best, a conventional “keypad.” It is not a component that can limit the claims to any particular machine for accomplishing the automation. Control Unit. Finally, the claimed control unit is also a generic component defined entirely by its function. It cannot direct the claim to any specific machine. To begin, the specification makes clear that the “control unit” need not include any specific structure or components. For example, it discloses one embodiment in which “[t]he control unit 112 preferably comprises a programmable Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 20 of 30 Page ID #:16466 16 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 logic controller (PLC),” but just as quickly, it declares that “the control unit 112 is not limited [to a PLC], and other suitable control units may also be implemented where desired.” See ’262 Patent at 6:44-49. In any event, a PLC is generic because it “is nothing more than a general purpose computer.” Dkt. 75-7 at ¶ 44; see also id. at ¶ 42 (“a programmable logic controller was defined in the mechanical arts as ‘[a] computer used for the automation of a process.’”). Rather than limiting the “control unit” to any particular structure, the specification only limits what functions the “control unit” performs. For example, the specification teaches that “the control unit 112 is able to determine the washing requirements and preferred washing parameters for the engine 1 being washed.” See ’262 Patent at 7:4-8. Similarly, it discloses that “the control unit 112 is further configured (or programmed) to measure and collect information regarding a number of parameters and functions in connection with an engine washing process.” See ’262 Patent at 7:26-29. Thus, the specification makes clear that the “control unit” is defined only by its function, not its structure. EcoServices positions throughout this litigation confirm that the “control unit” is entirely generic. EcoServices has argued bluntly that “the claimed ‘control unit’ … is a computer.” Dkt. 150 at 1-2. It has even argued repeatedly that the “control unit” can be software: “[t]he claims and specification make clear that a ‘control unit’ is a device (either circuitry or software) that … can be programmed to control the claimed washing system.” Dkt. 74 at 15; see also Dkt. 146-6 at ¶ 91 (same); Dkt. 74 at 16 (arguing that the ordinary meaning of control unit is “circuitry, and possibly microcode, that issues control signals); Dkt. 76 at 12 (same). EcoServices has also argued that the “control unit” need not include any specific structure. For example, it has represented that “[t]he internal workings of the control unit can use various components” (Dkt. 76-5 at ¶ 43), and it has admitted that “the claimed ‘control unit’ [is] not limited to programmable logic Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 21 of 30 Page ID #:16467 17 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 controllers” (Dkt. 74 at 17). Instead, its expert opined that the “control unit” was defined merely as “a unit (a distinct part or object with a specific purpose) for the purpose of controlling (regulating or directing) another system or device.” Dkt. 76- 5 at ¶ 40(a). The trial record further confirms that the control unit is generic. EcoServices’s expert began by describing the element in entirely functional terms, as anything that “accepts the information related to … engine type from the information detector and determines a washing program to be used as a function of the information.” Trial Tr. 6/27/2018 at 152:23-153:7. Later, he admitted that the “control unit” includes (but is not limited to) general purpose PLCs, and is used across industries and fields. Trial Tr. 6/29/2018 at 171:1-4, 171:13-15. Moreover, the infringement verdict requires that the “control unit” is defined only by its function. This is because EcoServices’s expert admitted that his infringement opinion was based only on observing the accused device’s function, not on inspecting its hardware or software: Q: Thank you. So we talked about some of the documents and information that you reviewed. You didn't review any - any source code related to forming your opinion; correct? A. Uh, source code for the control unit? No, sir, I did not. Q. All right. A. I -- I witnessed it in action, and I witnessed what it does, but I have not reviewed source code. I have not opened it up or gotten a printout of that. Trial Tr. 6/27/2018 at 176:3-11. (cross examination of EcoServices expert Mr. Kushnick). The record is thus clear. The “control unit” is nothing more than a generic computer. Yet, there is no clearer principle in the eligibility jurisprudence than that “the mere recitation of a generic computer cannot transform a patent-ineligible Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 22 of 30 Page ID #:16468 18 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 abstract idea into a patent-eligible invention.” Alice, 134 S.Ct. at 2358-60; see also supra n.2. Here too, the addition of a generic computer adds nothing to the abstract idea of automating the conventional washing method. * * * In sum, the claims are directed to the abstract idea of automating the known washing method traditionally performed by human operators. The claimed “system” simply (1) performs exactly the same steps as did the human operator, and (2) does so using a generic combination of components: a computer with a keypad and “washing unit.” Together, these generic components do not define the structure of any particular machine. Thus, “[r]ather than claiming some specific way” of automating the conventional washing process, the claims “monopolize every potential solution.” Elec. Power Grp., 830 F.3d at 1356. Because the claims are not directed to any particular machine for automating the known washing process, they are instead directed to the abstract idea of automating that process. B. Step Two: The claims recite no inventive concept. Because the claims are directed to the abstract idea of automation, the Court must undertake the second step of the inquiry to consider whether the claims nonetheless recite some inventive concept for achieving that automation. Alice, 134 S. Ct. at 2355. They do not. A claim recites an inventive concept if its elements, considered “both individually and as an ordered combination,” “transform the nature of the claim into a patent-eligible application.” Id. Like the step one inquiry, the step two inquiry looks to whether the claim recites “concrete improvements in the recited … technology,” such as “a specific improvement to the way [machines] operate.” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1334, 1336 (Fed. Cir. 2016) ; see also Alice, 134 S. Ct. at 2355-60; DDR, 773 F.3d at 1257-59. For example, “the non-conventional and non-generic arrangement of known, conventional pieces” may be eligible at step two if that “particular arrangement of elements is a technical Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 23 of 30 Page ID #:16469 19 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 improvement over prior art ways of” accomplishing the same result. BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341,1350 (Fed. Cir. 2016). The Federal Circuit has acknowledged that this inquiry overlaps with step one, but it has opined that, where there are “close calls about how to characterize what the claims are directed to,” “an analysis of whether there are arguably concrete improvements in the recited … technology could [also] take place under step two.” Enfish, 822 F.3d at 1339. There is no close call here. As we have shown above, the claims involve no more than a generic machine “invoked merely as a tool” for purposes of automation. Enfish, 822 F.3d at 1335-36. The claimed “system” does not reveal an improved method of washing engines because it performs exactly the same method that had always been performed by human operators, and it does not reveal an improved machine for accomplishing the automation because it comprises an entirely generic combination of components. Instead, the claims simply recite the idea of a generic machine that automates the conventional process by performing each of the conventional steps using a generic component defined by its function. The claimed “system” is just a computer with a keyboard for entering engine type and a “washing unit” for performing the corresponding wash routine. This is not invention. This is simply the idea of using a generic machine “to perform routine tasks more quickly or more accurately.” OIP, 788 F.3d at 1363. The Federal Circuit has been explicit that such claims provide no inventive concept. See supra n.1. These claims are entirely distinguishable from those the Federal Circuit has found eligible under step two. For example, in DDR, the Federal Circuit held that claims to new methods of creating a “hybrid web page” were eligible “because they [did] not broadly and generically claim ‘use of the Internet’ to perform an abstract business practice (with insignificant added activity).” DDR, 773 F.3d at 1258. Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 24 of 30 Page ID #:16470 20 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Instead, they “specif[ied] how interactions with the Internet are manipulated to yield a desired result-a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink.” Id. Thus, the claims in DDR were eligible because they “(1) did not foreclose other ways of solving the problem, and (2) recited a specific series of steps that resulted in a departure from the routine and conventional sequence of events.” Intellectual Ventures I, 792 F.3d at 1371 (characterizing DDR). None of that is present here. The claims here do “broadly and generically claim ‘use of [a machine]’ to perform [the] abstract business practice” of washing jet engines. DDR, 773 F.3d at 1258. They do not “override[] the routine and conventional sequence of events ordinarily” undertaken by human operators to perform those washes. Id. Instead, they simply instruct human operators to do as they have always done, but using a generic machine. Thus, the claims do “foreclose other ways of solving the problem” of automating the washing process. Intellectual Ventures I, 792 F.3d at 1371 (characterizing DDR). And they do not recite “steps that resulted in a departure from the routine and conventional sequence of events” conventionally used followed to wash engines. Id. At bottom, the claims simply recite the idea of using a generic machine “to perform routine tasks more quickly or more accurately.” OIP, 788 F.3d at 1363. That is not an inventive concept. This case is also easily distinguishable from BASCOM, where the Federal Circuit upheld claims under step two. BASCOM, 827 F.3d at 1350. The inventive concept in that case was “the non-conventional and non-generic arrangement of known, conventional pieces”-the “installation of a filtering tool at a specific location” that provided improvements over the conventional location. Id. (emphasis added). The Federal Circuit opined that, while “[f]iltering content on the Internet was already a known concept, … the patent describes how its particular arrangement of elements is a technical improvement over prior art ways of filtering such content.” Id. Thus, they “d[id] not merely recite the abstract idea of filtering Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 25 of 30 Page ID #:16471 21 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 content along with the requirement … to perform it on a set of generic computer components.” Id. “Nor d[id] the claims preempt all ways of filtering content on the Internet.” Id. “[R]ather, they recite[d] a specific, discrete implementation of the abstract idea of filtering content.” Id. The analysis in DDR thus dictates that the claims here lack an inventive concept. Again, this case is far afield. Like BASCOM, every component recited in the claims here is generic and conventional. But unlike BASCOM, the claims do not recite any inventive arrangement of those components. Instead, the arrangement of the components is entirely generic because it is dictated by the components’ functions: the “information detector” communicates the information it “detected” to the “controller,” the “controller” controls the “washing unit,” and the “washing unit” washes. That arrangement is dictated by each component’s function, not by the inventors’ creative efforts. And in turn, those functions are dictated by the washing method being automated-they simply spell out the steps of the conventional washing method. Thus, unlike BASCOM, the elements here do “merely recite the abstract idea … along with the requirement … to perform it on a set of generic … components.” Id. And they do “preempt all ways” of automating the washing process. Id. Thus, the analysis in BASCOM also dictates that the claims here lack an inventive concept. The proper analogy here is not to DDR or BASCOM, but to the myriad cases holding patents ineligible for claiming the use of general purpose computers to automate conventional practices. See supra n.1. As in those cases, one cannot patent the abstract idea of using a generic machine to perform a conventional process “more quickly or more accurately” than had humans. OIP, 788 F.3d at 1363; see also supra n1. To obtain a patent, “[i]t is not enough to point to conventional applications and say ‘do it on a computer.’” Apple, 842 F.3d at 1243. The claims here recite no more. They are ineligible. Independent claim 14 does not differ in any respect relevant to the eligibility Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 26 of 30 Page ID #:16472 22 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 analysis. It recites that the “information detector” “identif[ies]” the engine type rather than “gather[s] information related to engine type.” ’262 Patent at 10:18-19. And it recites that the “control” unit performs the same functions as in claim 1, only the wording differs insignificantly. Id. at 10:19-25. Thus, claim 14 is ineligible for the same reasons as claim 1. Dependent claim 9 adds one minor element to claim 1-that the “control unit” regulates “a washing time.” Id. at 9:11-13. But that element does not provide an inventive concept because it simply lists another aspect of the conventional engine washing process being automated. The specification discloses that the conventional washing process required that the human “operator … keeps track of the washing time.” See id. at 3:54-55. And EcoServices admitted at trial that regulating wash time was part of the conventional, manual process. See Trial Tr. 6/26/2018 at 45:8-15 (“Different operators would be running these washes. They’d be setting the pressure. They’d be watching the time, setting the time, setting different parameters.”). Moreover, EcoServices admitted that the goal of the claimed system is to automate that task. See id. at 45:16-25 (“[The inventors will] tell you how they developed a control system and an information detector and a washing unit that could deliver these washes in more a consistent basis without as much operator error.”). Thus, the additional limitation of claim 9 merely adds another aspect of the conventional process being automated. It does not supply an inventive concept by way of an improved method or machine that accomplishes that automation. Even if controlling wash time were not conventional (it was), this would still not render claim 9 eligible because, even where claims “extend beyond generic computer implementation” to include some minor specifics, those specifics do not necessarily provide an inventive concept. Ultramercial, 772 F.3d at 716. That is because, “the addition of merely novel or non-routine components to the claimed idea necessarily turns an abstraction into something concrete.” Ultramercial, 772 Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 27 of 30 Page ID #:16473 23 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F.3d at 715. For example, in Ultramercial, the Federal Circuit held that “[a]dding routine additional steps such as updating an activity log, requiring a request from the consumer to view the ad, restrictions on public access, and use of the Internet does not transform an otherwise abstract idea into patent-eligible subject matter.” Id. So too here. The specification and trial record contains no indication that there was anything special about regulating “washing time,” as opposed to any other parameter of the wash. As EcoServices admits, wash time was just one of the common parameters of the conventional washing process. Trial Tr. 6/26/2018 at 45:8-15; see also Trial Tr. 6/28/2018 at 105:13-18 (CAS’s witness describing the Cyclean programs as a generic timing system). And even if it were n’t, it would simply be an arbitrary implementation detail with no particular advantage explained in the specification or in the trial record. Such a minor detail cannot transform the abstract idea of automating a known process into something patentably concrete. In sum, the claims here recite no invention. The inventors sought to automate a manual process. Their idea for doing so was to use a computer with a keyboard and a “washing unit.” That is not a patentable invention. CONCLUSION Defendant respectfully requests that the Court hold claims 1, 9, and 14 of the ’262 Patent invalid under 35 U.S.C. § 101 for claiming ineligible abstract ideas. Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 28 of 30 Page ID #:16474 24 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: July 25, 2018 MAYER BROWN LLP By: /s/ Stephen E. Baskin Stephen E. Baskin Dale J. Giali (SBN 150382) Elizabeth M. Burnside (SBN 258184) Stephen E. Baskin (pro hac vice) Dara M. Kurlancheek (pro hac vice) Gregory J. Apgar (pro hac vice) Canek Acosta (SBN 301901) Attorneys for Defendant/Counter-Plaintiff Certified Aviation Services, LLC Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 29 of 30 Page ID #:16475 DEFENDANT’S MOTION FOR JUDGMENT OF INELIGIBILITY OF THE ‘262 PATENT; Case No. 5:16-cv-01824-RSWL-SP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Certificate of Service I, Stephen E. Baskin, hereby certify that on July 25, 2018, I filed the within and foregoing Defendant’s Motion for Judgment of Patent Ineligibility of the ’262 Patent with the Clerk of Court using the CM/ECF system, which automatically sent counsel of record e-mail notification of such filing: Natasha E. Daughtrey ndaughtrey@goodwinlaw.com GOODWIN PROCTER LLP 601 South Figueroa Street, 41st Floor Los Angeles, CA 90017 Telephone: (213) 426-2500 Facsimile: (213) 623-1673 Ronald J. Pabis rpabis@goodwinlaw.com Stephen K. Shahida sshahida@goodwinlaw.com Patrick J. McCarthy pmccarthy@goodwinlaw.com Myomi T. Coad mcoad@goodwinlaw.com GOODWIN PROCTER LLP 901 New York Avenue, NW Washington, DC 20001 Telephone: (202) 346-4000 Facsimile: (202) 346-4444 Attorneys for Plaintiff EcoServices, LLC Dated: July 25, 2018 MAYER BROWN LLP By: /s/ Stephen E. Baskin Stephen E. Baskin Case 5:16-cv-01824-RSWL-SP Document 271 Filed 07/25/18 Page 30 of 30 Page ID #:16476