University of South Florida Research Foundation, Inc. v. Brit Systems, Inc.

MOTION to dismiss for failure to state a claim

M.D. Fla.January 31, 2017

DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION, INC., Plaintiff, Civil Action No.: 8:16-cv-03109-VMC-AAS vs. Case Dispositive Motion BRIT SYSTEMS, INC., Defendant. DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT Defendant BRIT Systems, LLC1 (hereinafter “BRIT” or “Defendant”) submits its Motion to Dismiss Plaintiff University of South Florida Research Foundation, Inc.’s (“USFRF” or “Plaintiff”) Complaint for Patent Infringement pursuant to Federal Rule of Civil Procedure 12(b)(6), as more fully set forth in the following Memorandum of Legal Authority. All claims of the asserted patent are invalid as indefinite, due to a failure to comply with the Federal Circuit’s heightened clarity requirements for 35 U.S.C. §112, paragraph 6 (“means plus function”) claim elements2. MEMORANDUM OF LEGAL AUTHORITY I. INTRODUCTION USFRF commenced this patent infringement action on November 3, 2016 by filing a Complaint (“Complaint”) (Dkt. No. 1) in this Court, alleging that BRIT infringes claims 1-17 of 1 BRIT Systems, LLC is incorrectly named in this action as BRIT Systems, Inc. BRIT Systems, Inc. was converted to an LLC on November 4, 2013. 2 35 U.S.C. §112, paragraph 6, was re-codified by the America Invents Act (“AIA”) as 35 U.S.C. §112(f) in 2012. However, as the asserted patent was filed prior to the implementation of the AIA (September 16, 2012), the pre-AIA codification will be used herein. See AIA, P.L. 112-29 at §4(e). Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 1 of 25 PageID 136 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 2 U.S. Patent No. 6,630,937 (“the ’937 Patent” or “the Asserted Patent”). Dkt. No. 1 at ¶¶ 15-43. This litigation is one of several recent cases filed by USFRF; the others being claims of infringement of the ’937 Patent against FUJIFILM Medical Systems U.S.A., Inc., AFGA Healthcare Corporation, Barco, Inc., Aycan Medical Systems, LLC, and EIZO, Inc. The ’937 Patent is a classic example of a case involving special purpose computer- implemented means-plus-function limitations. The claims of the ’937 Patent are replete with vague functional claim language, including numerous computer-implemented “means-plus- function” elements and other generic hardware terms such as “processor” and “input device.” See Dkt. No. 1, Ex. A (“’937 Patent”) at claims 1, 2, 3, and 17. The specification itself establishes that special programming is needed, and was written, for implementation of the functions carried out by the processor in Claim 2, as well as the other computer-implemented means-plus-function limitations of Claims 1, 3, and 17. However, even a cursory glance at the ’937 Patent reveals a complete lack of any detail as to the software programming and algorithms required to carry out the functions of the ubiquitous means-plus-function claim terms. As such, the ’937 Patent and its 1999-era claim terms are squarely rooted in the past. Today, in 2017, for Plaintiff’s infringement claims to survive, they must overcome the significant body of recent Federal Circuit precedent that substantially raised the bar for functional claim language. In these cases, the specification must “disclose an algorithm for performing the claimed function.” Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1367 (Fed. Cir. 2008). Simply disclosing software, “without providing some detail about the means to accomplish the function[,] is not enough.” Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1340-41 (Fed. Cir. 2008) (citation omitted). Thus, the ’937 Patent is a classic example of a Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 2 of 25 PageID 137 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 3 patent that does not overcome the Federal Circuit’s heightened disclosure requirements for means-plus-function limitations and is, as a result, invalid. Means-plus-function claiming is permitted under paragraph 6 of 35 U.S.C. §112, which allows a claim element to be expressed as a means or step for performing a specified function without reciting the specific structure in the claim. See 35 U.S.C. §112 ¶6; see also Advanced Ground Info. Sys. v. Life360, Inc., 830 F.3d 1341, 1345 (Fed. Cir. 2016).3 While 35 U.S.C. §112 ¶ 6 still allows a patentee to express a claim element as a means for performing a function, the patent specification must nevertheless disclose “with sufficient particularity the corresponding structure for performing the claimed function and clearly link that structure to the function.” See Triton Tech of Texas, LLC v. Nintendo of America, Inc., 753 F.3d 1375, 1378 (Fed. Cir. 2014) (citing Ibormeith IP, LLC v. Mercedes-Benz USA, LLC, 732 F.3d 1376, 1379 (Fed. Cir. 2013)). For computer-implemented claim terms requiring special programming, the bar is even higher. If the function in a means-plus-function claim limitation is performed by a general purpose computer or microprocessor, then the specification must disclose the algorithm that the computer performs to accomplish the function. See id. at 1378 (citing Aristocrat Techs. Austr. Pty Ltd. v. Int’l Gaming Tech., 521 F.3d 1328, 1334 (Fed. Cir. 2008)). “Failure to disclose the corresponding algorithm for a computer-implemented means-plus-function term renders the claim indefinite.” Id. (citing Ergo Licensing LLC v. CareFusion 303, Inc., 673 F.3d 1361, 1363 (Fed. Cir. 2012)). The ’937 Patent may refer to the existence of software, but it fails to provide algorithms in any form, or any details regarding the software that was written for the invention. Figure 3 is 3 Even claim terms that do not literally recite the term “means” can be subject to 35 U.S.C. §112, paragraph 6, if they are generic verbal constructs that lack sufficient structure and are tantamount to reciting “means.” See Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1349-50 (Fed. Cir. 2015) (en banc in relevant part). Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 3 of 25 PageID 138 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 4 the only flow chart provided in the ’937 Patent, and it is presented as a “flow chart of a typical case analysis procedure” (see ’937 Patent at col. 4, ll. 62-63), not an algorithm for carrying out a computer-implemented function. While software is alluded to in the specification, it is not described. In 2003, when the ’937 Patent issued, this lack of detail may have been acceptable. However, because the claims of the ’937 Patent now fail to comply with the Federal Circuit’s strengthened requirements as to the use of functional language and are therefore indefinite, they cannot be asserted against any defendant. BRIT respectfully moves to dismiss USFRF’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). II. STATEMENT OF THE PERTINENT FACTS The ’937 Patent is directed to a “Workstation Interface for Use in Digital Mammography and Associated Methods.” It was filed on February 22, 2002 as a continuation of an application filed on February 1999 and a continuation-in-part of an application filed on October 30, 1997. See ’937 Patent at page 1. The patent itself is relatively brief, containing only about seven columns of written specifications and thirteen figures, ten of which are merely screen shots characterized as “a series of digitized mammogram displays produced by the principles of the present invention.” See id. at col. 2, ll. 51-52 and Figs. 4-13. The only computer disclosed in the specification is a general purpose computer (the UltraSPARC 2000) and while it is clear that the invention utilized written software code (see id., e.g., col. 4, ll. 28-30), no code is disclosed. The ’937 Patent contains 17 claims, 4 of which are independent claims. These independent claims are Claims 1, 2, 3, and 17. By virtue of their dependency on Claims 1 or 3, all of dependent Claims 4-16 will also be invalidated if the Court finds that Claims 1 and 3 are indefinite. Further, while Claims 1, 2, 3 and 17 contain numerous terms that may be characterized as means-plus-function elements, for the purpose of narrowing the focus of this Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 4 of 25 PageID 139 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 5 motion, only those terms that relate to computer-implemented functions will be addressed.4 As the indefiniteness of these terms alone is sufficient to find that Claims 1, 2, 3, and 17 are invalid, the other terms need not be considered. Claims 1, 2, 3, and 17, with emphasis added for the computer-implemented means-plus-function elements, are reproduced below. Claim 1 1. A system for providing an interface between a digitized mammogram and a user comprising: a processor having means for electronically communicating with: means for communicating with a user; a monitor for displaying image data in a predetermined format and in varying greyscale, the monitor having a predetermined illumination capability; and means for receiving digitized mammogram data corresponding to a film mammogram image, the digitized mammogram data having greyscale values corresponding to optical densities of the film mammogram image; and electronically implementable means resident in the processor comprising: means for transforming the digitized mammogram data into a plurality of varying-resolution forms, each form having different greyscale values; means for communicating with a monitor to display the plurality of forms, each form within a different window on the monitor, and each form having a predetermined illumination state corresponding to the greyscale values thereof; and means for receiving from the user communication means a control instruction for changing an illumination state in a displayed form and for implementing the control instruction upon the displayed form, thereby permitting the user to control the illumination state of each displayed form. Claim 2 2. A system for interfacing a digitized mammogram to a user comprising: 4 BRIT maintains that all claims of the ’937 Patent are invalid for a number of reasons and, moreover, that it does not infringe these claims. But BRIT’s position on these issues need not be urged in this motion. Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 5 of 25 PageID 140 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 6 a. a monitor capable of displaying image data in a predetermined format, and in varying grayscale colors, said monitor having a predetermined illumination capability; b. an electronic storage medium with digitized mammogram image data, said digitized mammogram image data corresponding to a film mammogram image and the digitized mammogram image data having grayscale values corresponding to the optical densities of the film mammogram image; c. a processor in circuit communication with said monitor and said electronic storage medium; and d. an input device in circuit communication with said processor; said processor being adapted to receive input signals from said input device, and being responsive to a signal from said input device to transfer digitized image data from said electronic storage medium to said monitor in a way that causes the monitor to produce a display having a plurality of windows and to display a mammogram image in a different form in each window with grayscale values that, along with the illumination characteristics of said monitor, appears to a user as a mammogram in each window under a predetermined illumination state, thereby interfacing said mammogram image in each window and in a predetermined illumination state to an operator handling said input device; said processor being adapted to receive further input from said input device related to the mammogram image in a selected window, said further input from said input device including input that selectively controls the grayscale values of the mammogram image in the selected window, thereby enabling an operator handling said input device to selectively control the illumination state with which the mammogram image in the selected window is displayed to the operator. Claim 3 3. A system for providing an interface between a medical image and a user comprising: means for establishing electronic communications with a processor for receiving a stored digitized medical image comprising data representative of a plurality of greyscale values; means for communicating with a display means; and software means loadable into the processor comprising: means for receiving a signal from a user-operable device; means controllable by a signal from the user-operable device for transforming the image into a plurality of varying-resolution forms, each form having a different set of greyscale values; and Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 6 of 25 PageID 141 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 7 means for displaying the forms on the display means, each form displayed within a different sector of the display means. Claim 17 17. A system for analyzing a set of digitized mammography images, the set comprising a plurality of views from a unitary patient, the system comprising: a first and a second display monitor; a processor having means for communicating with an image storage device and software means resident thereon, the software means comprising: means for receiving a signal from a user-operable device; means controllable by a signal from the user-operable device for transforming the image into a plurality of varying-resolution forms, each form having a different set of greyscale values; and means for displaying a first form on the first monitor and a second form on the second monitor. III. LEGAL STANDARD Under Federal Rule of Civil Procedure (“FRCP”) 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. In reviewing a motion to dismiss, the Court must “accept[] the allegations in the complaint as true and constru[e] them in the light most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam). Furthermore, courts are “generally limited to reviewing what is within the four corners of the complaint on a motion to dismiss.” Bickley v. Caremark RX. Inc., 461 F.3d 1325, 1329 n.7 (11th Cir. 2006). However, “where the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiff's claim, then the Court may consider the documents part of the pleading for purposes of Rule 12(b)(6) dismissal.” Id. (citation and internal quotation marks omitted). Although every issued patent is presumed to be valid absent clear and convincing evidence to the contrary, courts may find patents invalid at the pleading stage and prior to formal Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 7 of 25 PageID 142 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 8 claim construction. See, e.g., buySAFE, Inc. v. Google, Inc., 765 F.3d 1350 (Fed. Cir. 2014) (affirming a district court's finding of invalidity under Section 101 at the pleading stage). Courts may even engage in limited claim construction at the motion to dismiss stage, particularly where the construction is based solely on claim language and the specification and is thus purely legal in nature. See, e.g., Atlas IP, LLC v. Exelon Corp., No. 15 C 10746, 2016 U.S. Dist. LEXIS 64571 at *10-11 (N.D. Ill. May 17, 2016). Indefiniteness, “as a subset of claim construction, is a question of law…” In re Packard, 751 F.3d 1307, 1311 (Fed. Cir. 2014). “In exchange for using [Section 112 ¶ 6 means-plus-function] claiming, the patent specification must disclose with sufficient particularity the corresponding structure for performing the claimed function and clearly link that structure to the function.” Triton Tech, 753 F.3d at 1378 (citation omitted). If the written description “fails to set forth an adequate disclosure of a structure corresponding to the means in a means-plus-function claim, then the claim is indefinite, and therefore invalid.” Atmel Corp. v. Info. Storage Devices, Inc., 198 F.3d 1374, 1383 (Fed. Cir. 1999) (internal quotation marks and citations omitted). The Federal Circuit has held that in cases involving computer-implemented means-plus-function terms, the structure disclosed must be “more than simply a general purpose computer or microprocessor.” Net MoneyIN, 545 F.3d at 1367 (internal quotation marks and citations omitted). Therefore, “[c]omputer-implemented means-plus-function claims are indefinite unless the specification discloses an algorithm to perform the function associated with the limitation.” Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1319 (Fed. Cir. 2012); see also Augme Techs., Inc. v. Yahoo! Inc., 755 F.3d 1326, 1337 (Fed. Cir. 2014) (“[T]he specification must disclose an algorithm for performing the claimed function”). Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 8 of 25 PageID 143 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 9 IV. ARGUMENT A. Indefiniteness of the ’937 Patent Can be Addressed in this Motion. The question of whether the claims of the ’937 Patent are indefinite for failing to provide adequate structure in support of their means-plus-function claim limitations can and should be resolved in this motion to dismiss. The present Motion relies solely on the ’937 Patent – specifically, its claim language, specification, and figures. No extrinsic evidence is presented, and no expert testimony is required. The sole issues to be determined are legal issues, namely: (1) Is the claim term a means-plus-function term under 35 U.S.C. §112 ¶ 6? If yes, (2) What is the claimed function? And (3) Is there any structure disclosed in the specification that performs the function? See Advanced Ground Info. Sys. v. Life360, Inc., No. 14-80651-CV, 2014 U.S. Dist. LEXIS 187770, at *9-10 (S.D. Fla. Nov. 21, 2014), aff’d, 830 F.3d 1341 (Fed. Cir. 2016); see also Williamson v. Citrix Online, LLC, 792 F.3d at 1346. With regard to the third aspect of the analysis, BRIT’s position is clear and straightforward – there is no disclosure of any structure in the specification that performs the computer-implemented functions. BRIT does not ask the Court to construe the terms of the ’937 Patent but rather to confirm that they are incapable of construction. Indefiniteness of the claims of the ’937 Patent may be determined as a matter of law. See In re Packard, 751 F.3d at 1311. Courts routinely consider patent subject matter eligibility under 35 U.S.C. §101 as a matter of law that may properly be addressed at the pleading stage. See, e.g., Aatrix Software, Inc. v. Green Shades Software, Inc., No. 3:15-cv-164-HES-MCR, 2016 U.S. Dist. LEXIS 176222, at *5,8 (M.D. Fla. Mar. 30, 2016). This is true despite the need to analyze the meaning of the claim language very closely, and even to consider the details of the specification to determine how they affect the meaning of the claim language. See id. at *34-35 (finding terms Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 9 of 25 PageID 144 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 10 of a claim relating to a “viewer program” as “informed by the specification” to be generic computer functions that lack an inventive concept). The present Motion similarly seeks interpretation of claim language informed by the specification and a determination of indefiniteness, which is also a question of law. Even if resolving this motion did require limited, targeted claim construction, the motion remains ripe for consideration. District courts often engage in limited, early claim construction where such construction would resolve a claim or defense. See, e.g., FO2GO LLC v. Adobe Sys., Nos. 15-89-RGA, et al. (consolidated), 2016 U.S. Dist. LEXIS 22144 (D. Del. Feb. 24, 2016) (permitting early claim construction of one term and finding term to be indefinite means-plus- function term); Dreissen v. Sony Music Entm’t, No. 2:09-cv-140, 2015 U.S. Dist. LEXIS 30070 (D. Utah Mar. 10, 2015) (considering focused claim construction process for terms relevant to motions for summary judgment and finding means-plus-function claim term to be indefinite); and Iris Connex, LLC v. Acer Am. Corp., No. 2:15-cv-1909, 2016 U.S. Dist. LEXIS 118988 (E.D. Tex. Sept. 2, 2016) (dismissing claims against defendants after converting motions to dismiss under FRCP 12(b)(6) into motions for summary judgment and conducting early and targeted claim construction of disputed claim term). Evaluating the literal content of the ’937 Patent for the purposes of this motion does not require additional discovery, the development of a record beyond the complaint and the asserted patent, or any expert testimony. Resolution of this limited subset of claim construction does not require the consideration of any facts beyond the complaint and the asserted patent itself and, therefore, the Court may consider this matter at the motion to dismiss stage. See, e.g., Atlas IP, 2016 U.S. Dist. LEXIS 64571, at *11 (“[plaintiff] is therefore entirely incorrect in stating that Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 10 of 25 PageID 145 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 11 claim construction cannot be engaged in at all at the motion to dismiss stage, at least when it is based on facts alleged in or reasonably inferable from the complaint”).5 B. Claims 1, 3, and 17 of the ’937 Patent are Invalid as Indefinite Because Their Computer-Implemented “Means For” Terms Lack Structural Support. Claims 1, 3, and 17 of the ’937 Patent each contain three means-plus-function claim terms that are presumptively subject to 35 U.S.C. §112, paragraph 6. See TriMed, Inc. v. Stryker Corp., 514 F.3d 1256, 1259 (Fed. Cir. 2008). Each term lacks adequate structural support in the specification. While the exact language in each claim differs to some degree, they can be summarized as follows: (1) means for transforming, (2) means for communicating/displaying, and (3) means for receiving. Claims 1, 3, and 17 specifically characterize these means as “electronically implementable means” (Claim 1) or “software means” (Claims 3 and 17). Accordingly, each one of these means-plus-function terms is also a computer-implemented means-plus-function term. The language in each claim is reproduced below. Claim 1 Claim 3 Claim 17 (1) means for transforming the digitized mammogram data into a plurality of varying- resolution forms means controllable by a signal from the user- operable device for transforming the image into a plurality of varying- resolution forms means controllable by a signal from the user- operable device for transforming the image into a plurality of varying- resolution forms (2) means for communicating with a monitor to display the plurality of forms means for displaying the forms on the display means means for displaying a first form on the first monitor and a second form on the second monitor (3) means for receiving from the user communication means a control instruction for changing an illumination state means for receiving a signal from a user-operable device means for receiving a signal from a user-operable device 5 To the extent that the Court deems it necessary, this motion may be converted into a motion for summary judgment under FRCP 12(d). Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 11 of 25 PageID 146 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 12 1. The computer-implemented “means for” terms in Claims 1, 3, and 17 are all subject to 35 U.S.C. §112, paragraph 6. The “means for transforming,” “means for communicating/displaying,” and “means for receiving” terms of Claims 1, 3, and 17 are all means-plus-function claim terms subject to 35 U.S.C. §112, paragraph 6. These claim terms plainly include the word “means.” The use of the term “means” triggers a rebuttable presumption that 35 U.S.C. §112 ¶ 6 applies to that term. See TriMed, 514 F.3d at 1259. The presumption may be rebutted if the claim itself recites sufficient structure to perform the recited function. See id. Alternatively, it may be rebutted if the claim term is used “in common parlance” to designate a structure that performs the function. See Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1359-60 (Fed. Cir. 2004). Here, the presumption is not rebutted. First, the claim terms do not include any structure that might perform the recited function, other than the general “processor” on which the computer-implemented means are said to reside. See the ’937 Patent, Claims 1, 3, and 7. As discussed more fully below, disclosure of a general purpose “processor” is insufficient structure for these means-plus-function terms. Further, a full reading of each claim element containing these terms only reveals more functional language or more elaboration on the nature of the function, and nothing resembling structure. Thus, the claims themselves cannot salvage these claim terms. Moreover, there is no “common parlance” that indicates structure for such general terms as “means for transforming,” “means for communicating/displaying,” or “means for receiving.” These are software functions, as the claims of the ’937 Patent indicate, and as such they could be implemented in a number of different structural (or algorithmic) ways. They are not coined phrases used in common parlance to refer to a specific structure – they are all aspects of an “electronically implantable means” or a “software means” that reside on a processor. See id. Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 12 of 25 PageID 147 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 13 The computer-implemented “means for transforming,” “means for communicating/displaying,” or “means for receiving” terms of Claims 1, 3, and 17 of the ’937 Patent are all subject to 35 U.S.C. §112, paragraph 6. 2. The computer-implemented “means for” terms in Claims 1, 3, and 17 are indefinite as they lack adequate structural support. The “means for transforming,” “means for communicating/displaying,” and “means for receiving” terms of Claims 1, 3, and 17 are indefinite. The specification and figures of the ’937 Patent do not provide adequate structural support to perform the specific recited functions. Claims 1, 3, and 17 plainly identify the recited functions as computer-implemented functions by indicating that they are part of “electronically implementable means” (Claim 1) or “software means” (Claims 3 and 17) that reside on a processor. Where the function is computer- implemented, the structure disclosed in the specification must be “more than simply a general purpose computer or microprocessor.” Aristocrat, 521 F.3d at 1333. In fact, the corresponding structure must be the algorithm for carrying out the function on the processor. See id.; see also Harris Corp. v. Ericsson Inc., 417 F.3d 1241, 1253 (Fed. Cir. 2005) (“[a] computer-implemented means-plus-function term is limited to the corresponding structure disclosed in the specification and equivalents thereof, and the corresponding structure is the algorithm”). Further, the algorithm must be disclosed with more detail than a simple reference to a class or type of algorithms. “Disclosure of a class of algorithms ‘that places no limitations on how values are calculated, combined or weighted is insufficient to make the bounds of the claims understandable.’” Triton Tech, 753 F.3d at 1379 (quoting Ibormeith, 732 F.3d at 1382). To analyze a claim term under 35 U.S.C. §112, paragraph 6, first the specific claimed functions for each of the mean-plus-function terms must be identified. See Noah, 675 F.3d at 1311. The language of Claims 1, 3, and 17 of the ’937 Patent provides this information. For the Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 13 of 25 PageID 148 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 14 “means for transforming” term, the function is transforming the image (or digitized mammogram data) into a plurality of varying-resolution forms, each form having different greyscale values. For the “means for communicating/displaying” term, the function is communicating with a monitor to display, or simply displaying, the forms on the display means or monitors. For the “means for receiving” term, the function is receiving a signal (or control instruction) from a user- operable device, which may (in Claim 1) also implement the instruction for changing an illumination state of the image. The exact wording and nuances of these functions are not critical, as the ’937 Patent is silent as to any arguably relevant algorithms. Second, once the function is identified, the corresponding structure disclosed in the specification that performs the function must be identified. See Noah, 675 F.3d at 1311. Structure is “corresponding structure” only if the specification or prosecution history “clearly links or associates that structure to the function recited in the claim.” Saffran v. Johnson & Johnson, 712 F.3d 549, 562 (Fed. Cir. 2013). The duty to link or associate structure to function is the quid pro quo for the convenience of employing 35 U.S.C. § 112, ¶ 6. Id. The structure supporting a computer-implemented means-plus-function claim element must be described in detail, not in abstraction, and must be more than a “black box.” See Astute Technology, LLC v. Learners Digest Int’l LLC, No. 2:12-CV-689-JRG, 2014 U.S. Dist. LEXIS 45526, at *17 (E.D. Tex. April 2, 2014) (citing Blackboard, Inc. v. Desire2Learn Inc., 574 F.3d 1371, 1382-83 (Fed. Cir. 2009)). Structural details as to the computer and associated hardware in the ’937 Patent reveal only general hardware usable in any application. The ’937 Patent identifies a general purpose computer with a general purpose operating system for implementing the invention – namely, the UltraSPARC 2200 running under the Solaris 2.5.1 operating system. See the ’937 Patent at col. Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 14 of 25 PageID 149 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 15 3, ll. 45-48. In addition to the CPU, additional storage is utilized, as well as high-resolution greyscale monitors and a display card capable of driving these monitors. See id. at col. 3, line 65 – col. 4, line 26. The nature of this general purpose hardware is not critical to performing the recited functions. See id. at col. 3, ll. 19-22 (“It is to be understood by one of skill in the art that the hardware detailed herein is not intended to form a limitation on the invention, and that equivalent devices may be substituted therefor”). Accordingly, as the functions in the means- plus-function claim limitations are performed by a general purpose computer or microprocessor, the specification must disclose the algorithm that the computer performs to accomplish the function. See Triton Tech, 753 F.3d at 1378 (citing Aristocrat, 521 F.3d at 1334). “Failure to disclose the corresponding algorithm for a computer-implemented means-plus-function term renders the claim indefinite.” Id. (citing Ergo Licensing LLC v. CareFusion 303, Inc., 673 F.3d 1361, 1363 (Fed. Cir. 2012)). The ’937 Patent fails to disclose these corresponding algorithms. Notably, a brief portion of the specification of the ’937 Patent describes the “Software,” as follows: The software was written in ANSI C, using SPARCworks Visual C++ for the interface development, and the Motif toolkit. Sun's XIL was used as the imaging library. The XIL library was accelerated for both the UltraSPARC's Fast Frame Buffer (FFB) as well as Dome's MD5 boards. The Java language was used for the report recording software. This combination of hardware and software provided a solid base for the display station project. See id. at col. 4, ll. 27-35. This excerpt from the ’937 Patent is critical, as it states unequivocally that software was written for this particular invention in ANSI C. This is further emphasized later at col. 7, ll. 56-59 (emphasis added): “The software was written using standard tools in the Sun-based UNIX environment, thus providing an excellent product that runs even on an entry- Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 15 of 25 PageID 150 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 16 level SPARCstation 4 without any additional hardware.” It is apparent that the inventors wrote software in order to carry out the features of the invention. What is missing, however, is a disclosure in the ’937 Patent as to what the written code and algorithms were. While an algorithm may be disclosed in different forms, including in prose, as a mathematical formula, or in flow charts, the specification must include at least some detail as to how the computer performs the function. See Function Media, LLC v. Google Inc., 708 F.3d 1310, 1318 (Fed. Cir. 2013); see also Noah, 675 F.3d at 1312. The ’937 Patent provides no algorithm of any form explaining how the computer carries out the recited functions.6 Figure 3 of the ’937 Patent comes the closest to at least appearing, on its face, to resemble a flow chart or an algorithm. It is certainly the only flow chart found in the ’937 Patent. However, it does not represent an algorithm explaining how a computer carries out the functions of the “means for transforming,” “means for communicating/displaying,” or “means for receiving” claim terms. It is described as “a flow chart showing the sequence of steps in implementing the workstation interface to display a case to a user” and as “a flow chart of a typical case analysis procedure.” See the ’937 Patent, col. 2, ll. 48-50 and col. 4, ll. 62-63. The description of Figure 3 in the specification describes each step in terms of what actions the physician takes and which images are shown on the interface display windows in response to these actions, without providing any details as to how the software implements each step between the time the command is received and the images are ultimately displayed. See id. at col. 4, line 64 – col. 38. 6 As there is no algorithm disclosed, the question of whether a person of ordinary skill would interpret the disclosure as being sufficient has no application to this analysis. See Noah, 675 F.3d at 1313 (“while ‘[i]t is certainly true that the sufficiency of the disclosure of algorithmic structure must be judged in light of what one of ordinary skill in the art would understand the disclosure to impart,’ in a situation in which the specification discloses no algorithm, ‘[t]hat principle…has no application”) (quoting Aristocrat, 521 F.3d at 1337). Thus, the definition of a person of ordinary skill is irrelevant and no expert testimony is required. Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 16 of 25 PageID 151 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 17 Figure 3 is equally unhelpful when considering the specific functions of the means-plus- function terms at issue here. Two of the computer-implemented means-plus-function claim terms have functions that relate to images being in a plurality of varying-resolution forms, each form having different greyscale values. The “means for transforming” element creates these forms, and the “means for communicating/displaying” displays these forms. However, Figure 3 contains only a single box that relates to greyscale adjustment, namely, block 308 which states the entirety of: “Analysis window with all four views, adjust greyscale (308).” See id., Figure 3. A single box that recites “adjust greyscale” is not an algorithm setting out how images are transformed into a plurality of varying-resolution forms, each form having different greyscale values. This is not sufficient corresponding structure for this element. See ePlus, Inc. v. Lawson Software, Inc., 700 F.3d 509, 518 (Fed. Cir. 2012) (holding that a block in a flow chart representing a claim function “is just a black box” and is not sufficient corresponding structure). Additional boxes in Figure 3 that relate to the subsequent display aspects also fail to explain the “communicating/displaying” function, as they simply recite “Display previews (303) physical size,” “Windowing default (310) automatic based on system characteristics,” and “Window manual (313) selected window or all four views.” Again, these boxes simply reflect what the user sees and can access. They fail to provide even minimal explanation as to how the computer actually creates and displays the plurality of varying resolution forms. This is also insufficient structural support. See Function Media, 708 F.3d at 1318 (finding that a flow chart that indicates a transmission step but fails to explain how the software performs the transmission is insufficient support for a “means for transmitting” term). The specification’s description of the “real-time grayscale adjustment” from block 308 makes it clear that the “means for transforming” element is important but, again, does not Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 17 of 25 PageID 152 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 18 explain how it is carried out by the software. See id. at col. 5, ll. 39-64. Features that are available for selection, changes that can be made, values that can be stored and applied, automatic scaling processes, and even manual interactive adjustment availabilities are all alluded to as options for the user. How these features are implemented internally by the software is not described. The same is true with regard to how the adjusted greyscale images are then displayed on the monitors. There is no description as to how software takes the plurality of varying- resolution forms of the images and sends them to the appropriate displays. There is no mention of blocks 310 or 313 from Figure 3 in the specification and only a cursory reference to block 303 as an “initial full-size overview.” See id. at col. 5, ll. 7-9. Thus, there is insufficient corresponding structure in the ’937 Patent for both the “means for transforming” and the “means for communicating/displaying” elements of Claims 1, 3, and 17. Figure 3 and the specification of the ’937 Patent provide even less detail as to how the software implements the function of the “means for receiving” element of Claims 1, 3, and 17. Claim 1 requires that the means receive a control instruction for changing an illumination state and implement the instruction on the displayed image form. Figure 3 contains no steps or boxes that involve receiving instructions relating to illumination states or carrying out these instructions. If this function is intended to be rolled into the “adjust greyscale” box 308 of Figure 3, then this disclosure represents the same insufficient “black box” type of disclosure already discussed. See ePlus, 700 F.3d at 518 (holding that a block in a flow chart representing a claim function “is just a black box” and is not sufficient corresponding structure). The specification does not even mention “illumination states” other than in the description of Figures 4-13, which represent “a series of digitized mammogram displays…in various states of illumination.” See the ’937 Patent, col. 2, ll. 51-53. The fact that images can be obtained in Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 18 of 25 PageID 153 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 19 various states of illumination sheds no light whatsoever on how the software actually makes such changes. On a broader level, there is no disclosure of any software implementations of how signals are received from a user-operable device. That signals and instructions are sent and received is apparent – the algorithmic implementation is not. Accordingly, there is insufficient structure in the ’937 Patent to support the “means for receiving” elements of Claims 1, 3, and 17 as well. The ’937 Patent makes full use of the convenience of means-plus-function claim language under 35 U.S.C. § 112, ¶ 6 in Claims 1, 3, and 17. However, it fails the quid pro quo of associating sufficient structure in exchange for such convenience. See Saffran, 712 F.3d at 562. Thus, these means-plus-function elements are indefinite and Claims 1, 3, and 17 are invalid. C. Claim 2 of the ’937 Patent is Invalid as Indefinite Because its Generic Hardware Terms are Means-Plus-Function Elements Lacking Structural Support. Claim 2 of the ’937 Patent contains a number of generic structural terms, but for the purposes of this motion, as with the “electronically implementable means” and “software means” of Claims 1, 3, and 17, BRIT focuses its arguments on the term “processor.” The “processor” is recited three times in Claim 2, once as being in “circuit communication” with a monitor and an “electronic storage medium,” and two additional times as “being adapted to” receive and be responsive to input signals from the “input device” (another structurally generic term). The processor carries out certain functions, such as “to transfer digitized image data…to said monitor” such that the monitor produces a display with a plurality of windows and displays a mammogram image in a different “form” in each window with a particular grayscale value. It also receives input from the “input device” that “selectively controls the grayscale values” of the Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 19 of 25 PageID 154 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 20 image, enabling a user to “selectively control the illumination state” of the displayed image. See the ’937 Patent, Claim 2. These functions are extremely similar to, and indeed overlap with, the functions of the computer-implemented means-plus-function claim terms in Claims 1, 3, and 17 discussed above. 1. The term “processor” in Claim 2 is subject to 35 U.S.C. §112, paragraph 6. While Claim 2 of the ’937 Patent does not recite the phrase “means for” in conjunction with the term “processor,” this does not mean it is not subject to 35 U.S.C. §112, paragraph 6. A claim element that does not use the term “means” may invoke 35 U.S.C. §112, paragraph 6, if “the claim term fails to ‘recite sufficiently definite structure’ or recites ‘function without reciting sufficient structure for performing that function.’” Williamson, 792 F.3d at 1349 (en banc in relevant part) (quoting Watts v. XL Sys., Inc., 232 F.3d 877, 880 (Fed. Cir. 2000)). While there is a presumption that a claim element lacking the term “means” is not subject to 35 U.S.C. §112, paragraph 6, the presumption is not a strong one. See id. (expressly overruling prior characterization of the presumption as “strong” and noting the “proliferation of functional claiming untethered to §112, para. 6” that resulted from the prior characterization). Though Claim 2 is replete with descriptions of the functions carried out by the processor, it is silent with regard to structural elements of the processor itself that could implement these functions. “Processor” is a purely generic term, or a verbal construct, that conveys nothing about structure and is subject to 35 U.S.C. §112, paragraph 6. See Williamson, 792 F.3d at 1350 (“‘[g]eneric terms such as ‘mechanism,’ ‘element,’ ‘device,’ and other nonce words that reflect nothing more than verbal constructs may be used in a claim in a manner that is tantamount to using the word ‘means’ because they ‘typically do not connote sufficiently definite structure’ and therefore may invoke § 112, para. 6”) (quoting Mass. Inst. of Tech. & Elecs. for Imaging, Inc. v. Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 20 of 25 PageID 155 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 21 Abacus Software, 462 F.3d 1344, 1354 (Fed. Cir. 2006)). The use of “processor” sets forth the “same black box recitation of structure for providing the same specified function” as if “means” had been used. See id. (finding the term “module” to be a generic term subject to 35 U.S.C. § 112, paragraph 6). In fact, courts have previously held that the term “processor” invokes 35 U.S.C. §112, paragraph 6. See, e.g., Vocaltag Ltd. v. Agis Automatisering B.V., 659 Fed. Appx. 616 (Fed. Cir. 2016) (nonprecedential) (“data processor”) and Pers. Audio, LLC v. Apple, Inc., No. 9:09CV111, 2011 U.S. Dist. LEXIS 157778 at *69 (E.D. Tex. Jan. 31, 2011) (“processor”). The Patent Trial and Appeal Board has reached the same conclusion in several appeals. See, e.g., Ex Parte Emigh, Appeal 2012-5145, 2013 WL 1450915, at *4 (PTAB Mar. 12, 2013) (“a processor configured to”); Ex Parte Erol, Appeal 2011-1143, 2013 WL 1341107, at *5 (PTAB Mar. 11, 2013) (“a processor adapted to”); Ex Parte Lakkala, Appeal 2011-1526, 2013 WL 1341108, at *2 (PTAB Mar. 11, 2013) (“processor…configure…to” perform various control functions); and Ex Parte Smith, Appeal 2012-7631, 2013 WL 1341109, at *1 (PTAB Mar. 12, 2013) (“a processor…programmed to…generate an opinion timeline for the asset for the user associated with the user identifier”). If the term “processor” found in the specification of a patent is insufficient corresponding structure to support a means-plus-function claim element, then the term used in the claim itself similarly does not convey sufficient structure. See Pers. Audio, 2011 U.S. Dist. LEXIS 157778, at *69 (“[i]f ‘computer’ or ‘processor’ is insufficient structure to define the scope of a means-plus-function limitation, the word ‘processor’ cannot describe sufficient structure when recited directly in a claim limitation itself”). The structurally generic claim term “processor” conveys insufficient structure, whether it is found in the claim terms or in the specification. Accordingly, the presumption that 35 U.S.C. Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 21 of 25 PageID 156 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 22 §112 ¶ 6 is inapplicable to this claim term is rebutted. The Federal Circuit has expressly overruled its prior characterization of this presumption as strong and, in the absence of any recited structure in Claim 2, the term “processor” is effectively a means-plus-function term. 2. The computer-implemented “processor” term in Claim 2 is indefinite as it lacks adequate structural support. The term “processor” used as a means-plus-function element in Claim 2 is indefinite. The “processor” is a computer processor having software loaded thereon, as it is used in the other claims of the ’937 Patent (including Claims 1, 3, and 17) and as it is used in the specification and figures. See, e.g., the ’937 Patent at Figure 1 (“Processor”, (10)) and at col. 3, ll. 45-47 (“[t]he computer chosen by applicants to implement the present invention was the UltraSPARC 2200, a dual-processor 200-MHZ system (FIGS. 1, 10)”). Thus, every function carried out by the processor in Claim 2 is a computer-implemented function. As set out in detail in the analysis of Claims 1, 3, and 17 above, where the function is computer-implemented the structure disclosed in the specification must be “more than simply a general purpose computer or microprocessor.” Aristrocrat, 521 F.3d at 1333. In fact, the corresponding structure must be the algorithm for carrying out the function on the processor. See id.; see also Harris, 417 F.3d at 1249. Just as the specification and figures of the ’937 Patent fail to disclose sufficient algorithmic structure to carry out the functions of the “electronically implementable means” and “software means” of Claims 1, 3, and 17, they also fail to disclose sufficient corresponding structure to carry out the functions of the “processor” of Claim 2. In fact, the analysis is the same. The “electronically implementable means” and the “software means” represent the programming found on the processor for carrying out all of its the computer-implemented functions. See, e.g., the ’937 Patent at col. 2, ll. 21-22 (emphasis added): Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 22 of 25 PageID 157 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 23 Software means that are loadable into the processor comprise means for receiving a signal from a user-operable device and means controllable by a signal from the user-operable device for transforming the image into a plurality of varying-resolution forms, each form having a different set of greyscale values. In addition, the software means comprises means for displaying the forms on the display means, each form displayed within a different sector of the display means. It is clear that this software programming exists and was written for the purpose of carrying out the invention. See id. at col. 4, ll. 27-28 (“The software was written in ANSI C, using SPARCworks Visual C++ for the interface development”) and col. 7, ll. 56-57 (“The software was written using standard tools in the Sun-based UNIX environment”). As has already been established above, while the ’937 Patent expressly alludes to this software, it is silent as to the requisite structural details for carrying out the recited functions. V. CONCLUSION USFRF’s Complaint fails to state a claim for relief under the Federal Rules of Civil Procedure and should be dismissed pursuant to Rule 12(b)(6). Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 23 of 25 PageID 158 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 24 Dated: January 31, 2017 Respectfully submitted, By: _/s/ John M. Jackson Joseph H. Varner, III Florida Bar No. 0394904 joe.varner@hklaw.com Jennifer Lada Florida Bar No. 0119247 jennifer.lada@hklaw.com HOLLAND & KNIGHT LLP Post Office Box 1288 Tampa, Florida 33601-1288 (813) 227-8500 (813) 229-0134 (fax) Robert P. Latham Texas State Bar No. 11975500 blatham@jw.com John M. Jackson Texas State Bar No. 24002340 jjackson@jw.com Sara K. Borrelli Texas State Bar No. 24037705 sborrelli@jw.com JACKSON WALKER, LLP 2323 Ross Avenue, Suite 600 Dallas, TX 75201 214-953-6000 Fax: 214-953-5822 Attorneys for Defendant Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 24 of 25 PageID 159 DEFENDANT BRIT SYSTEMS, INC.’S MOTION TO DISMISS PLAINTIFF UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION’S COMPLAINT FOR PATENT INFRINGEMENT – Page 25 CERTIFICATE OF SERVICE The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the Court’s CM/ECF system this 31st day of January, 2017. /s/ John M. Jackson John M. Jackson Case 8:16-cv-03109-VMC-AAS Document 28 Filed 01/31/17 Page 25 of 25 PageID 160