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Case 2 15 cv 01299 RWS RSP Document 26 Filed 11 23 15 Page 2 of 14 PageID 127. TABLE OF CONTENTS,I BACKGROUND 1,II LEGAL STANDARD 2. A The Court Should Use Rule 12 To Invalidate The Patent Under 35 U S C 112. Now Because Indefiniteness Is A Question Of Law 2, B Mixed Method And Apparatus Claims Are Prohibited 3. 1 A Claim Cannot Be Rewritten 4,III ARGUMENT 4,A The Asserted Claims Are Invalid As Indefinite 4. 1 Fatal Recitation Of Method And Apparatus 4, 2 Fatal Recitation Of Apparatus And Method Of Using That Apparatus 5. IV CONCLUSION 9, Case 2 15 cv 01299 RWS RSP Document 26 Filed 11 23 15 Page 3 of 14 PageID 128.
TABLE OF AUTHORITIES,Ashcroft v Iqbal,556 U S 662 2009 2. Atmel Corp v Info Storage Devices Inc,198 F 3d 1374 Fed Cir 1999 2. Chef Am Inc v Lamb Weston Inc,358 F 3d 1371 Fed Cir 2004 4. Collaboration Props Inc v Tandberg ASA, No C 05 01940 2006 WL 1752140 N D Cal June 23 2006 5. E Watch Inc v Apple Inc, No 2 13 cv 1061 2015 WL 1387947 E D Tex Mar 25 2015 3 6 7 8.
HTC Corp v IPCom GmbH Co KG,667 F 3d 1270 Fed Cir 2012 5. InterDigital Commc ns Inc v ZTE Corp, No 13 cv 009 2014 U S Dist LEXIS 55518 D Del Apr 22 2014 4. IPXL Holdings LLC v Amazon com Inc,430 F 3d 1377 Fed Cir 2005 3 4 6. Ex parte Lyell,17 USPQ2d 1548 1990 3, Microprocessor Enhancement Corp v Texas Instruments Inc. 520 F 3d 1367 Fed Cir 2008 4 5,Neitzke v Williams,490 U S 319 1989 2.
Net MoneyIN Inc v VeriSign Inc,545 F 3d 1359 Fed Cir 2008 2. Novo Indus L P v Micro Molds Corp,350 F 3d 1348 Fed Cir 2003 8. Ortho McNeil Pharm Inc v Mylan Labs Inc,520 F 3d 1358 Fed Cir 2008 8. Case 2 15 cv 01299 RWS RSP Document 26 Filed 11 23 15 Page 4 of 14 PageID 129. Rembrandt Data Techs LP v AOL LLC,641 F 3d 1331 Fed Cir 2011 3 4. SFA Sys LLC v 1 800 Flowers com,940 F Supp 2d 433 E D Tex 2013 Davis C J 3 4.
35 U S C 112 passim,Other Authorities,Fed R Civ P 12 b 6 1 2. Case 2 15 cv 01299 RWS RSP Document 26 Filed 11 23 15 Page 5 of 14 PageID 130. Defendant Netflix Inc Netflix hereby moves under Fed R Civ P 12 b 6 to. dismiss Plaintiff CryptoPeak Solutions LLC s Complaint because all the claims asserted by. CryptoPeak are invalid on arrival 1, Claims 1 4 and 17 of U S Patent No 6 202 150 the Asserted Claims 2 are indefinite. under 35 U S C 112 as each claim is expressly directed to both an apparatus and a method in. violation of Federal Circuit law prohibiting a claim from covering more than one statutory class. of subject matter As exemplified by claim 1 reproduced below the plain language of the. Asserted Claims expressly recite a method and apparatus. 1 A method and apparatus for generating public keys and a. proof that the keys were generated by a specific algorithm. comprising the steps of, 150 Patent claim 1 emphasis added Accordingly and as further explained below the grounds. for invalidity of all the Asserted Claims are manifest no claim construction discovery or factual. inquiry is needed This threshold issue disposes of the case Moving forward with the case would. unnecessarily expend judicial and party resources on unsustainable patent claims. I BACKGROUND, CryptoPeak filed suit against Netflix alleging infringement of U S Patent No 6 202 150. the 150 Patent Entitled Auto escrowable and auto certifiable cryptosystems the 150. Patent purports to be generally directed to cryptography techniques used to encrypt and decrypt. In response to Netflix s Motion to Dismiss CryptoPeak s Complaint at Dkt No 16. CryptoPeak filed both an Amended Complaint Dkt No 21 and a Response in Opposition Dkt. No 22 CryptoPeak s Amended Complaint would appear to have mooted Netflix s original. motion but to the extent it does not the instant submission also serves as a reply to CryptoPeak s. Response in Opposition, By way of its Amended Complaint CryptoPeak asserts only claims 1 4 and 17 of the 150.
Patent Dkt No 21 19 20, Case 2 15 cv 01299 RWS RSP Document 26 Filed 11 23 15 Page 6 of 14 PageID 131. electronically transmitted data 150 Patent col 1 ll 6 12 CryptoPeak s patent has 59 claims. all of which were potentially asserted against Netflix in CryptoPeak s Complaint After Netflix. filed a motion to dismiss the Complaint because all of the claims of the 150 Patent are invalid. Dkt No 16 CryptoPeak filed an Amended Complaint and restricted the Asserted Claims to. claims 1 4 and 17 of the 150 Patent Dkt No 21 at 4 5 The amendment does nothing to. change the claims they are still invalid,II LEGAL STANDARD. A The Court Should Use Rule 12 To Invalidate The Patent Under 35 U S C. 112 Now Because Indefiniteness Is A Question Of Law. Under Federal Rule of Civil Procedure 12 b 6 a party may move to dismiss a. complaint that fails to state a claim upon which relief can be granted instead of answering the. complaint Fed R Civ P 12 b 6 This rule is an important procedural mechanism that. authorizes a court to dismiss a claim on the basis of a dispositive issue of law and streamlines. litigation by dispensing with needless discovery and fact finding Neitzke v Williams 490 U S. 319 326 27 1989 Threshold legal issues are ripe now because the tenet that a court must. accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Ashcroft v Iqbal 556 U S 662 678 2009, A determination of claim indefiniteness is a legal conclusion that is drawn from the. court s performance of its duty as the construer of patent claims Atmel Corp v Info Storage. Devices Inc 198 F 3d 1374 1378 Fed Cir 1999 citation omitted Indefiniteness is a. question of law and so is an issue that is amenable to summary judgment See e g Net. MoneyIN Inc v VeriSign Inc 545 F 3d 1359 1364 1367 Fed Cir 2008 For the same. reason indefiniteness is amenable to judgment under Rule 12. Case 2 15 cv 01299 RWS RSP Document 26 Filed 11 23 15 Page 7 of 14 PageID 132. B Mixed Method And Apparatus Claims Are Prohibited. Section 112 paragraph 2 requires that the claims of a patent particularly point out and. distinctly claim the subject matter which the applicant regards as his invention IPXL Holdings. LLC v Amazon com Inc 430 F 3d 1377 1384 Fed Cir 2005 quoting 35 U S C 112 2. E Watch Inc v Apple Inc No 2 13 cv 1061 2015 WL 1387947 E D Tex Mar 25 2015. Payne M J 3 The Federal Circuit has laid down a per se rule for these type of claims reciting. both an apparatus and a method of using that apparatus renders a claim indefinite under section. 112 paragraph 2 Rembrandt Data Techs LP v AOL LLC 641 F 3d 1331 1339 Fed Cir. 2011 quoting IPXL Holdings 430 F 3d at 1384 SFA Sys LLC v 1 800 Flowers com 940 F. Supp 2d 433 454 E D Tex 2013 Davis C J A single claim that recites two separate. statutory classes of invention e g an apparatus and a method of using that apparatus renders. The IPXL Court explained the motivation for this per se rule. The Board of Patent Appeals and Interferences Board of the PTO has made. it clear that reciting both an apparatus and a method of using that apparatus renders. a claim indefinite under section 112 paragraph 2 Ex parte Lyell 17 USPQ2d 1548. 1990 As the Board noted in Lyell the statutory class of invention is important. in determining patentability and infringement Id at 1550 citing In re Kuehl 475. F 2d 658 665 1973 Rubber Co v Goodyear 9 Wall 788 76 U S 788 796 19. L Ed 566 1869 The Board correctly surmised that as a result of the combination. of two separate statutory classes of invention a manufacturer or seller of the. claimed apparatus would not know from the claim whether it might also be liable. for contributory infringement because a buyer or user of the apparatus later. performs the claimed method of using the apparatus Id Thus such a claim is not. sufficiently precise to provide competitors with an accurate determination of the. metes and bounds of protection involved and is ambiguous and properly. rejected under section 112 paragraph 2 Id at 1550 51 This rule is well. recognized and has been incorporated into the PTO s Manual of Patent. Examination Procedure 2173 05 p II 1999 A single claim which claims. both an apparatus and the method steps of using the apparatus is indefinite under. 35 U S C 112 second paragraph see also Robert C Faber Landis on Mechanics. of Patent Claim Drafting 60A 2001 Never mix claim types to different classes. of invention in a single claim, Case 2 15 cv 01299 RWS RSP Document 26 Filed 11 23 15 Page 8 of 14 PageID 133. the claim indefinite under 35 U S C 112 2 citing IPXL 430 F 3d at 1384 and Ex parte. Lyell 17 U S P Q 2d 1548 1990,1 A Claim Cannot Be Rewritten.
The Court may not rewrite a claim to preserve its validity. C ourts may not redraft claims whether to make them operable or to sustain their. validity Even a nonsensical result does not require the court to redraft the claims. of the patent Rather where as here claims are susceptible to only one reasonable. interpretation and that interpretation results in a nonsensical construction of the. claim as a whole the claim must be invalidated, Chef Am Inc v Lamb Weston Inc 358 F 3d 1371 1374 Fed Cir 2004 citations omitted. see also Rembrandt Data Techs 641 F 3d at 1340 In particular correcting an apparatus claim. that includes an improper method step is not permissible InterDigital Commc ns Inc v ZTE. Corp No 13 cv 009 2014 U S Dist LEXIS 55518 at 12 14 D Del Apr 22 2014. III ARGUMENT,A The Asserted Claims Are Invalid As Indefinite. Each of the Asserted Claims expressly claims a method and apparatus and is thus invalid. 1 Fatal Recitation Of Method And Apparatus, The invalidity of the claims asserted here is cut and dry The Asserted Claims recite a. method and apparatus Thus a practitioner cannot know the scope of the Asserted Claims from. reading them because they explicitly claim separate statutory classes of invention an act. expressly forbidden by the law SFA Sys 940 F Supp 2d at 454 For this reason alone these. claims are invalid on their face and the Court should declare so at this stage See e g IPXL 430. F 3d at 1384, The express identification of the two statutory classes differentiates these claims from. those that courts have previously declined to invalidate for reciting system elements in a method. claim See e g Microprocessor Enhancement Corp v Texas Instruments Inc 520 F 3d 1367. Case 2 15 cv 01299 RWS RSP Document 26 Filed 11 23 15 Page 9 of 14 PageID 134. 1374 Fed Cir 2008 finding claim was not invalid as indefinite despite reciting a method of. executing instructions on a processor the structural limitations of the processor and the method. steps implemented in the processor Collaboration Props Inc v Tandberg ASA No C 05. 01940 2006 WL 1752140 at 4 N D Cal June 23 2006 upholding validity of claims that. recited a method of conducting a teleconference using a system Unlike the claims in. Microprocessor Enhancement which are clearly labeled a method of performing steps using. specific structure identified within a nested preamble the claims here require a method. and apparatus comprising The preamble could not be more explicit that it attempts to cover. both statutory classes Id They thus provide no clarity as to the covered statutory class As such. the Asserted Claims are invalid on their face, 2 Fatal Recitation Of Apparatus And Method Of Using That Apparatus.
In addition to the language identifying the Asserted Claims as covering a method and. apparatus the body of the claims describes an apparatus and method steps for using that. A valid apparatus claim must recite only structural limitations i e structure or. capabilities of structure or functional language subject to 35 U S C 112 6 See. Microprocessor Enhancement Corp v Texas Instruments Inc 520 F 3d 1367 1375 Fed Cir. 2008 see also HTC Corp v IPCom GmbH Co KG 667 F 3d 1270 1277 78 Fed Cir. 2012 A method claim recites a series of steps rather than requiring structure The defect in. claim 1 here is that the claim attempts to encompass both just as in the IPXL case In IPXL the. Federal Circuit invalidated a claim that recited on the one hand a system and on the other. hand method steps for use of that system by a user. 25 The system of claim 2 including an input means wherein the predicted. transaction information comprises both a transaction type and transaction. parameters associated with that transaction type and the user uses the input means. Case 2 15 cv 01299 RWS RSP Document 26 Filed 11 23 15 Page 10 of 14 PageID 135. to either change the predicted transaction information or accept the displayed. transaction type and transaction parameters, IPXL Holdings 430 F 3d at 1384 quoting U S Patent No 6 149 055 Because it is unclear. whether infringement of claim 25 occurs when one creates a system that allows the user to. change the predicted transaction information or accept the displayed transaction or whether. infringement occurs when the user actually uses the input means to change transaction. information or uses the input means to accept a displayed transaction the claim was invalid. under section 112 paragraph 2 Id, The same considerations apply here For example independent claim 1 of the 150 Patent. identifies a user and a user s system and then identifies steps that the user s system must. perform and steps that the user must perform, 1 A method and apparatus for generating public keys and a proof that the. keys were generated by a specific algorithm comprising the steps of. the user s system generating a random string of bits based on system. parameters, the user running a key generation algorithm to get a secret key and public. key using the random string and public parameters, the user constructing a proof being a string of bits whose public availability.
does not compromise the secret key and wherein said constructing of said proof. requires access to said key but at the same time said proof provides confidence to. at least one of a plurality of other entities that said public key was generated. properly by the specified algorithm and wherein said confidence is gained without. having access to any portion of said key, 150 Patent claim 1 emphasis added The step is a process required of the user s system or. the user but the user s system and the user are required as tangible elements of the claim The. result as the preamble states is a method and apparatus. A recent post IPXL case in this district illustrates this See E Watch 2015 WL 1387947. at 6 A claim at issue in E Watch recited an a pparatus comprising operation of the input. Case 2 15 cv 01299 RWS RSP Document 26 Filed 11 23 15 Page 11 of 14 PageID 136. device by the user and movement by the user of the portable housing referring to U S Patent. No 7 643 168 at 15 14 50 The court found that the language by the user referred to user. actions which were method steps to be contrasted with system capabilities which would be. appropriate apparatus limitations Id at 6 The court rejected plaintiff s attempt to redraft the. claims to read the by the user language out of the claims Id at 6. Here the Asserted Claims are similarly recited in terms of a system and the use of that. system by a user The limitations in the Asserted Claims improperly attempt to turn on the. overall system and on how a user can use the system to generate or read access. construct etc data Thus in accordance with E Watch the patentee s mix of an apparatus. i e the user s system and a method steps i e the user actions claim renders the claims. indefinite under IPXL, This defective recitation of multiple statutory classes is found on the face of each of the. Asserted Claims Each claims an apparatus underlined below and then one or more method. steps bolded of using that apparatus, Asserted Exemplary Language Reciting Both An Apparatus And Method Of. Claim Using That Apparatus, 1 2 A method and apparatus comprising the steps of. the user s system generating,the user running,3 A method and apparatus comprising the steps of.
the user s system reading,the user s system running. the user s system constructing,4 A method and apparatus comprising the steps of. the user generating,the user sending, Case 2 15 cv 01299 RWS RSP Document 26 Filed 11 23 15 Page 12 of 14 PageID 137. 17 A method and apparatus then the user takes the following steps. calculating,computing and outputting, 150 patent annotations added As with claim 1 the pattern of reciting both an apparatus and a. method of using that apparatus in each of these claims renders them indefinite. The defect in these claims is so glaring that CryptoPeak s only choice is to request that. the Court overlook the express words of the claims construe the claims to read out certain. language or even correct the claims CryptoPeak has done just that in its Amended Complaint. alleging that n othwithstanding that the claims generically recite the existence of. apparatus in their preambles each of the Asserted Claims is a method claim Dkt. No 21 at 4 emphasis added, This request is improper and should be rejected The Court must read the claims as.
written not as the patentees wish they were written See E Watch 2015 WL 1387947 at 6. quoting Chef Am 358 F 3d at 1374 The Court s power to correct errors is limited and only. allows correction of an obvious typographical or transcription error See Novo Indus L P v. Micro Molds Corp 350 F 3d 1348 1357 Fed Cir 2003 No matter how much CryptoPeak. wishes the claims were written as only method claims they each claim both a method and. apparatus The Court cannot redraft these claims to excise either method or apparatus. Ortho McNeil Pharm Inc v Mylan Labs Inc 520 F 3d 1358 1362 Fed Cir 2008. C ourts may not redraft claims whether to make them operable or to sustain their validity. Case 2 15 cv 01299 RWS RSP Document 26 Filed 11 23 15 Page 13 of 14 PageID 138. IV CONCLUSION, As discussed above claims 1 4 and 17 of the 150 Patent are indefinite under 35 U S C. 112 2 for claiming two classes of statutory subject matter in violation of Federal Circuit law. that this District has previously relied on to hold invalid claims with the same defect. Accordingly Netflix s motion should be granted and this case dismissed with prejudice. for failure to state a claim because the Asserted Claims are invalid. Dated November 23 2015 Respectfully submitted,FISH RICHARDSON P C. By s Wasif Qureshi,Neil J McNabnay,mcnabnay fr com. Texas Bar No 24002583,Ricardo J Bonilla,rbonilla fr com. Texas Bar No 24082704,1717 Main Street Suite 5000,Dallas TX 75201.
214 747 5070 Telephone,214 747 2091 Facsimile,Wasif Qureshi. qureshi fr com,Texas Bar No 24048155,1221 McKinney Street Suite 2800. Houston TX 77010,713 654 5300 Telephone,713 652 0109 Facsimile. Aamir A Kazi,kazi fr com,Georgia Bar No 104235,1180 Peachtree Street 21st Floor. Atlanta GA 30309,404 892 5005 Telephone,404 892 5002 Facsimile.
COUNSEL FOR DEFENDANT NETFLIX INC, Case 2 15 cv 01299 RWS RSP Document 26 Filed 11 23 15 Page 14 of 14 PageID 139. 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 per Local Rule CV 59 a on November 23 2015.


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