UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION

ECREDIT SOLUTIONS LLC, 

Plaintiff, 

v. 

VYZE, INC., 

Defendant. 

 

CASE NO. 6:20-cv-00304-ADA 

JURY TRIAL DEMANDED 

DEFENDANT VYZE, INC.’S REPLY 

IN SUPPORT OF ITS RULE 12(b)(6) MOTION TO 

DISMISS FOR FAILURE TO STATE A CLAIM 

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Vyze’s motion is not a typical § 101 motion. This case does not involve the kind of run-ofthe-mill software patents involving databases, encryption, or pattern recognition that, while 

commonly held invalid as abstract, at times raise close issues at the pleadings stage. The ’353 

Patent is not such a patent—it is directed to the same kind of fundamental economic practices held 

patent ineligible in the foundational cases that have recently shaped the § 101 inquiry. Every 

similar patent evaluated by the Federal Circuit since Alice has been held invalid, including patents 

considered as recently as April 2020. Indeed, eCredit does not point to a single decision upholding 

claims similar to the ’353 Patent, nor does eCredit make any attempt to distinguish the ’353 Patent 

from the litany of cases—Alice, Bilski, Accenture, Credit Acceptance, just to name a few—finding 

such patents invalid. Moreover, none of the claims of the ’353 Patent provide any meaningful 

limitations that would constitute an inventive concept. Rather than address disclosures in the ’353 

Patent admitting that the claims capture nothing more than generic components performing their 

basic functions, eCredit instead unsuccessfully attempts to manufacture artificial fact issues. 

Vyze therefore seeks an early resolution to this case while respectfully acknowledging the 

Court’s general approach to resolve such motions after claim construction. See, e.g., Aeritas, LLC 

v. Sonic Corp., No. 6:20-cv-00103-ADA (Mar. 13, 2020).1

 The Court need look no further than the 

patent itself to reach a finding of patent ineligibility. eCredit has failed to identify any fact issue or 

proposed claim construction that could possibly alter this result. In cases involving patents directed 

to fundamental economic practices like the ’353 Patent, neither the Court nor the parties need 

waste resources to conclude that such patents are not eligible for patent protection. Vyze thus 

respectfully requests that the Court grant its motion to dismiss with prejudice. 

 

1

 Vyze disputes eCredit’s statement that Vyze’s “motion mischaracterizes a text order [in Aeritas] from this Court.” 

(Resp. at 8.) eCredit does not explain any mischaracterization, and given that Vyze quoted directly from the Court’s 

order, there was no opportunity for mischaracterization. (Mot. at 1.) 

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I. ARGUMENT

A. eCredit’s reliance on conclusory language does not save its claims from a 

finding of ineligibility. 

As shown in Vyze’s Motion to Dismiss, the claims of the ’353 Patent are directed to the 

abstract idea of making lending decisions based on creditworthiness and risk factors. eCredit 

admits “the entire patent . . . is drawn to the steps for extending credit to a purchaser at a point-ofsale terminal when various thresholds for creditworthiness and risk factors are ‘exceeded.’” (Resp. 

at 18.) This is not a technological advance—it is a fundamental economic practice. See Island 

Intellectual Prop., LLC v. Stonecastle Asset Mgmt. LLC, No. 19-CV-4792 (JPO), 2020 WL 

2793000, at *3 (S.D.N.Y. May 29, 2020) (finding claims directed to using multibank depository 

program to stay within insurance limits were directed to fundamental economic practice and thus 

abstract). Moreover, as Claim 1 only contains basic, generic devices and functions, the claims 

contain no inventive concept. Nothing that eCredit argued in its response dictates otherwise. 

1. The ’353 Patent is directed to the abstract idea of making lending 

decisions based on creditworthiness and risk factors. 

As Vyze’s motion lays out, the claims of the ’353 Patent recite nothing more than the same 

fundamental economic practices found abstract in Alice, Bilski, and their progeny. eCredit 

contends that comparing the ’353 Patent to other patents invalidated by the Federal Circuit as 

fundamental economic practices is inappropriate because “[n]one of [Claim 1’s] limitations were 

contained in the patent claims at issue” in those cases. (Resp. at 21; see also id. at 22 (“[N]owhere 

in federal statute or case law on invalidity under § 101 has it been expressed that comparing the 

claims of the patent to an unrelated patent with a different specification is a factor in a § 101 

analysis.”).) On the contrary, making these kinds of comparisons between different patents is not 

only explicitly endorsed by the Federal Circuit, but a practice the Federal Circuit and district courts 

engage in regularly. See, e.g., Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1294–

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95 (Fed. Cir. 2016) (”[T]he decisional mechanism courts now apply [under § 101] is to examine 

earlier cases in which a similar or parallel descriptive nature can be seen—what prior cases were 

about, and which way they were decided.”). In short, it is immaterial that a court has never 

considered the exact claims of the ’353 Patent—courts, including the Federal Circuit, have 

considered similar claims directed to nearly identical concepts and held them invalid as abstract. 

eCredit’s response makes no meaningful attempt to explain why the focus of the ’353 

Patent is any different from those invalidated patents. Instead, the response admits that “the entire 

patent” is nothing more than “steps for extending credit to a purchaser at a point-of-sale terminal 

when various thresholds for creditworthiness and risk factors are ‘exceeded’”—an abstract idea. 

(Resp. at 18.) How is that any different than “processing an application for financing a purchase”? 

See Credit Acceptance Corp. v. Westlake Servs., 859 F.3d 1044 (Fed. Cir. 2017); see also Bozeman 

Fin. LLC v. Fed. Reserve Bank of Atlanta, 955 F.3d 971, 978 (Fed. Cir. 2020) (holding abstract “a 

method of receiving data from two financial records, storing that data, comparing that data, and 

displaying the results”). The Court needs nothing more than the patent itself to conclude that no 

material difference exists between the claims asserted here and those held ineligible in Credit 

Acceptance and Bozeman. See, e.g., Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018) 

(relying on the four-corners of the patent to conclude that the claim “[did] not recite an inventive 

concept sufficient to transform the abstract idea into a patent eligible application”). 

Rather than address the striking similarities between the ’353 Patent and the case law 

discussed in Vyze’s motion, eCredit complains that Vyze “has not shown that the claims are invalid 

under § 101 by clear and convincing evidence.” (Resp. at 6.) eCredit misapprehends the clear and 

convincing evidence standard, which applies to issues of fact. See ChargePoint, Inc. v. 

SemaConnect, Inc., 920 F.3d 759, 773 (Fed. Cir. 2019). As discussed below, eCredit fails to raise 

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any relevant issues of fact that preclude the Court from finding the ’353 Patent ineligible under 

§ 101 as a matter of law. 

2. The claims of the ’353 Patent apply the abstract idea without any inventive 

concept. 

eCredit describes the purported advance of the ’353 Patent as “an improvement to how 

point-of-sale terminals operate and can be used by merchants.” (See Resp. at 5, 16.) But the patent 

makes no such claim, and its claims contain no such “improvement.” See Cellspin Soft, Inc. v. 

Fitbit, Inc., 927 F.3d 1306, 1317 (Fed. Cir. 2019) (noting that “any allegation about inventiveness, 

wholly divorced from the claims or the specification, [cannot] defeat[] a motion to dismiss”). 

Rather, the specification admits that it merely uses known hardware like POS terminals and 

processors to implement their conventional functions like sending, receiving, and processing data. 

(See Mot. at 15–17.) Even if the specification did recite improvements to the hardware discussed 

therein, no such improvements are recited in the claims. The ’353 Patent therefore cannot be 

rescued by the purported (but unidentified) improvements to the recited hardware. See Berkheimer, 

881 F.3d at 1370 (“Because claims 1–3 and 9 do not capture the purportedly inventive concepts, 

we hold that claims 1–3 and 9 are ineligible.”); see also Cellspin, 927 F.3d at 1317 (noting that 

claims can survive “[a]s long as what makes the claims inventive is recited by the claims”). 

eCredit next contends that making lending decisions at a POS terminal “is a major 

improvement in the prior art.” (Resp. at 13.) So what? In BSG Tech LLC v. Buyseasons, Inc., 899 

F.3d 1281 (Fed. Cir. 2018), the Federal Circuit rejected an almost identical argument regarding 

database systems. BSG Tech, 899 F.3d at 1286 (“We have consistently held, however, that claims 

are not saved from abstraction merely because they recite components more specific than a generic 

computer.”). Just as “performing an abstract idea in conjunction with a well-known database 

structure” is insufficient to confer patent eligibility, id. at 1287, so too is performing the abstract 

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idea of making lending decisions based on creditworthiness and risk factors on well-known POS 

terminals. See also Inventor Holdings, LLC v. Bed Bath & Beyond Inc., 123 F. Supp. 3d 557, 563 

(D. Del. 2015), aff’d, 643 F. App’x 1014 (Fed. Cir. 2016) (finding invalid “claims [to] the use of 

a POS to transmit transaction-related information and to process payments”). 

eCredit also relies on a pre-Alice approach to argue the claims satisfy the machine-ortransformation test and therefore include the necessary inventive concept to pass the Alice test. 

(See Resp. at 20.) Yet several of the limitations that eCredit relies on—“specialized hardware and 

software”—are not actually in the ’353 Patent’s claims. (See id.) Even so, eCredit neither offers 

an explanation for this conclusion nor explains how the claims contain an inventive step that would 

“transform” the abstract idea of making a lending decision into a patent eligible concept. Simply 

put, eCredit points to an old, inapplicable test and makes no attempt to discuss or even cite any 

case law to support its application here.2

 Moreover, even if eCredit’s contentions were true, no 

“technology” is responsible for transforming anything in the ’353 Patent’s claims. eCredit is just 

touting the result of an allegedly new business arrangement. The Federal Circuit has held that 

“manipulations of ‘public or private legal obligations or relationships, business risks, or other such 

abstractions cannot meet the [machine-or-transformation] test because they are not physical 

objects or substances, and they are not representative of physical objects or substances.’” 

Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 717 (Fed. Cir. 2014). 

3. No factual dispute exists to preclude a determination of patent-

 

2

 Likewise, eCredit faults Vyze for not offering the “highly relevant” perspective of a person having ordinary skill in 

the art with respect to the ’353 Patent. (See, e.g., Resp. at 6.) eCredit does not explain how a such a discussion would 

have any impact on the § 101 analysis, nor could it. The perspective of a skilled artisan is relevant to factual disputes 

at step two, but, as discussed below, no such factual disputes exist. See, e.g., IPA Techs., Inc. v. Amazon.com, Inc., 

352 F. Supp. 3d 335, 343, 348–49 (D. Del. 2019) (Andrews, J.) (citing Berkheimer, 881 F.3d at 1369) (“I am not 

required to treat boilerplate allegations that the claims are directed to new computer functionality and improvements 

to technological processes as true where those allegations contradict the language of the claims and specification . . . . 

Moreover, these boilerplate allegations do not change the fact that the specification is replete with references to 

implementing the claims using conventional technology.”). 

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ineligibility. 

eCredit attempts to manufacture a factual question by its conclusory assertion that “fact 

issues exist.” (Resp. at 15.) eCredit does not explain what those unresolved factual issues are, and 

therefore, nothing precludes dismissal on the pleadings. See, e.g., Jedi Techs., Inc. v. Spark 

Networks, Inc., No. CV 1:16-1055-GMS, 2017 WL 3315279, at *6 (D. Del. Aug. 3, 2017) (ruling 

on § 101 at Rule 12(b)(6) stage because plaintiff failed to specifically identify factual or claim 

construction disputes). Nor is the appropriate inquiry, as eCredit suggests, whether the claimed 

abstract idea is described by Vyze’s promotional material. (See Resp. at 13–14.) Instead, the 

question is whether the financing transaction itself is claimed in a manner sufficient to convert a 

patent-ineligible abstract idea to eligible subject matter. See Berkheimer, 881 F.3d at 1370 (holding 

that the claimed conventional limitations “fail to transform th[e] abstract idea into a patent-eligible 

invention”). 

The Court need only look to the language of the ’353 Patent to determine that the claimed 

financing transaction merely recites a fundamental economic practice. (See Mot. at 10–13.) Unlike 

eCredit’s statement, the ’353 Patent does not disclose a new approach to financing “when a 

potential customer would not qualify for lending.” (Reply at 12.) No such disclosure exists. Rather, 

the specification quoted by eCredit merely states that a lending application is not “Declined” when 

an individual would otherwise qualify for financing, but the financing request exceeds “lending 

limits provided by the subscribing merchant or established by the lending financial institution.” 

(’353 Pat. at 5:6–14; see also id. at 5:55–62 (explaining that such lending limits “(i.e. electing to 

restrict purchaser-borrower requests to a maximum $2,000 versus, for example, $5,000)” may be 

set “in order to lower processing and service fees”); id. at 6:25–38.) The application “would be 

‘Rejected’ rather than ‘Declined’” in this instance. (Id. at 5:9–14.) Regardless, the specification is 

agnostic as to the relationship between the claimed thresholds (i.e., creditworthiness of the 

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purchaser-borrower and the velocity data) and the ultimate lending decision. The financing 

application may be approved regardless of whether such thresholds are exceeded, (see Reply 12–

13; ’353 Pat. at 7:55–59), or not, (’353 Pat. at 6:44–47 (“[T]he host 102 may authorize payment 

of the merchant when a purchaser-borrower’s ‘measured’ creditworthiness and measured velocity 

are both below their respective thresholds.”) (emphasis added)). The ’353 Patent thus discloses 

nothing more than making lending decisions based on creditworthiness and risk factors, regardless 

of what those factors are or how they relate to any thresholds set by the system. eCredit’s attempt 

to paint the role of the factors or the thresholds in the ultimate lending decision as the inventive 

concept is not only “wholly divorced from the claims [and] the specification,” Cellspin, 927 F.3d 

at 1317, it is flatly contradicted by the specification. 

Even if the claimed financing methods were novel concepts (they are not), they do not 

confer patent eligibility, as “a claim for a new abstract idea is still an abstract idea.” Synopsys, Inc. 

v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016); see SAP Am, Inc. v. Investpic, 

LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018) (“We may assume that the techniques claimed are 

‘[g]roundbreaking, innovative, or even brilliant,’ but that is not enough for eligibility.”) (internal 

citations omitted). Because eCredit cannot point to a relevant and unresolved fact issue, the Court 

should dismiss the claims without further proceedings. 

4. eCredit admits the dependent claims add nothing to Claim 1. 

eCredit’s discussion of the dependent claims merely restates them without addressing how 

they shelter the claims from ineligibility. (Resp. 19–20.) They do not. See Bilski, 561 U.S. at 610–

11 (“[T]he prohibition against patenting abstract ideas ‘cannot be circumvented by attempting to 

limit the use of the formula to a particular technological environment’ or adding ‘insignificant 

postsolution activity.’”). The Federal Circuit has, for example, held claims invalid that are nearly 

identical to Claims 3 and 4 of the ’353 Patent because “[v]erifying financial documents to reduce 

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transactional fraud is a fundamental business practice that, without more, is not eligible for patent 

protection.” Bozeman, 955 F.3d at 978. eCredit does not dispute Vyze’s arguments with respect to 

the dependent claims but rather asserts that because “Claim 1 is not directed to an abstract idea, 

these claims are, necessarily, not directed to an abstract idea as well.” (Resp. at 19.) In other words, 

eCredit admits that the dependent claims rise or fall with Claim 1. Claim 1 is invalid as abstract—

nothing in the dependent claims changes that conclusion. 

B. Claim construction is unnecessary for the Court to determine that the claims 

at issue are subject matter ineligible. 

Where patent claims involve terms that are “straightforward and not technical in nature,” 

such as the present case, the claims need not be construed before deciding patent eligibility under 

§ 101. See Epic IP LLC v. Backblaze, Inc., 351 F. Supp. 3d 733, 751–52 (D. Del. 2018) (Bryson, 

J., sitting by designation) (“District courts have frequently decided section 101 issues on motions 

to dismiss, and the Federal Circuit has approved of that procedure on numerous occasions, 

including in cases post-dating the decisions in Aatrix and Berkheimer.”); see also Cyberfone Sys., 

LLC v. CNN Interactive Grp., Inc., 558 Fed. App’x 988, 991–93 & n.1 (Fed. Cir. 2014) (holding 

a patent claim ineligible under § 101 where the district court did not engage in claim construction, 

but where the plaintiff “d[id] not explain which terms require construction or how the analysis 

would change”). 

Even if the Court finds the meanings of certain terms helpful in deciding the § 101 issue, 

the claims of the ’353 Patent are nevertheless ineligible under any reasonable construction of the 

terms identified by eCredit as requiring construction. See Content Extraction & Transmission LLC 

v. Wells Fargo Bank, N.A., 776 F.3d 1343, 1349 (Fed. Cir. 2014) (upholding the district court’s 

grant of a 12(b)(6) motion on § 101 grounds because “even when construed in a manner most 

favorable to [the plaintiff], none of [the plaintiff’s] claims amount to ‘significantly more’ than the 

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abstract idea”). 

For example, eCredit asserts claim construction is necessary to show that the computer 

processor at the POS terminal performs “registering,” “receiving,” “sending,” “determining,” and 

“authorizing” steps. (Resp. at 5.) There are all conventional steps performed by generic computers. 

See Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1341 (Fed. Cir. 2017) 

(“[T]he claims recite both a generic computer element—a processor—and a series of generic 

computer ‘components’ that merely restate their individual functions—i.e., organizing, mapping, 

identifying, defining, detecting, and modifying.”). Under any construction, therefore, the recited 

hardware components are nothing more than generic devices (i.e., a processor) used in 

conventional ways (i.e., receiving and sending data). See id. (“[The claims] merely describe the 

functions of the abstract idea itself, without particularity. This is simply not enough under step 

two.”). 

eCredit also contends that the term “velocity data” requires claim construction. (Resp. at 

14.) Not only does eCredit fail to explain how construction would impact the invalidity analysis, 

eCredit does not contest that “velocity data” can be any of the “traditional factors evaluated by 

financing institutions to evaluate credit risk.” (Mot. at 11.) Nor does eCredit propose how any 

construction of the claimed “risk factor” distinguishes the lending evaluation of the ’353 Patent 

from any other lending practice. eCredit fails to offer a concrete explanation of how claim 

construction would change the result. See Jedi Techs., 2017 WL 3315279 at *6 (finding no factual 

dispute to preclude holding of patent-ineligibility on a motion to dismiss where patent holder 

“failed to identify any specific claims which, if scrutinized during claim construction, could impact 

the analysis”). 

Thus, even if eCredit were correct that claim construction is necessary in this case to decide 

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the § 101 issue, the Court could resolve this conflict by construing the claims in a manner most 

favorable to eCredit. Doing so, however, would not save the claims of the ’353 Patent from 

claiming patent-ineligible subject matter. See Inventor Holdings, 123 F. Supp. 3d at 559 

(invalidating patent under § 101 without claim construction because “the parties’ arguments are 

not focused on specific claim limitations, but instead on the broader concepts of the claims”).3

C. Patent ineligibility is an issue properly before this Court. 

eCredit ignores the long litany of Supreme Court and Federal Circuit cases analyzing patent 

eligibility under § 101.4 Indeed, the Federal Circuit has specifically rejected eCredit’s argument, 

stating that “the defenses provided in the statute, § 282, include not only the conditions of 

patentability in §§ 102 and 103, but also those in § 101.” Dealertrack, Inc. v. Huber, 674 F.3d 

1315, 1330 n.3 (Fed. Cir. 2012). Judge Bryson recently described pursuing the same argument 

based on the same blog article cited by eCredit as a “suicide mission.” (Ex. 1, Claim Construction 

Hr’g Tr. at 37:13–14, IDB Ventures, LLC, v. Charlotte Russe Holdings, Inc., 2:17-cv-0660-WCBRSP (E.D. Tex., Oct. 17, 2018) (Bryson, J.) (sitting by designation).) eCredit cannot seriously 

argue that any dispute remains on this point after Alice. 

II. CONCLUSION 

For the foregoing reasons, Vyze respectfully requests that the Court dismiss eCredit’s 

patent infringement claims based on the ’353 Patent for failure to state a claim upon which relief 

can be granted. Because leave to amend would be futile, Vyze requests dismissal with prejudice.

 

3

 eCredit appears to fault Vyze for timely filing its motion, (Resp. at 15), but it is unclear how that is relevant to a 

determination that the focus of the ’353 Patent as a fundamental economic concept under any claim construction. 

4 See, e.g., Graham v. John Deere Co., 383 U.S. 1, 12 (1966) (including § 101 among “conditions of patentability”); 

Alice Corp. Pty. v. CLS Bank Int’l, 134 S. Ct. 2347, 2355 (2014); Aristocrat Techs. Austl. Pty Ltd. v. Int’l Game Tech., 

543 F.3d 657, 661, 661 n.3 (Fed. Cir. 2008); GoDaddy.com LLC v. RPost Commc’ns Ltd., No. CV-14-00126-PHXJAT, 2016 WL 3165536, at *4 (D. Ariz. June 7, 2016), affd, 685 F. App’x 992 (Fed. Cir. 2017), cert. denied, 138 S. 

Ct. 568 (2017) (rejecting identical argument). 

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Dated: June 4, 2020 FISH & RICHARDSON P.C. 

By: /s/ Ricardo J. Bonilla 

Neil J. McNabnay 

mcnabnay@fr.com 

Texas Bar No. 24002583 

Ricardo J. Bonilla 

rbonilla@fr.com 

Texas Bar No. 24082704 

Andria Rae Crisler 

crisler@fr.com 

Texas Bar No. 24093792 

COUNSEL FOR DEFENDANT 

VYZE, INC. 

CERTIFICATE OF SERVICE 

 The undersigned hereby certifies that a true and correct copy of the above and foregoing 

document has been served on June 4, 2020, to all counsel of record who are deemed to have 

consented to electronic service via the Court’s CM/ECF system. 

 /s/ Ricardo J. Bonilla 

 Ricardo J. Bonilla 

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