1651069 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

AUSTIN DIVISION 

Voxer, Inc. and Voxer IP LLC 

Plaintiffs, 

v. 

Facebook, Inc. and Instagram LLC 

Defendants. 

Civil Action No. 1:20-cv-00655-ADA 

Jury Trial Demanded 

DEFENDANTS FACEBOOK, INC. AND INSTAGRAM LLC’S MOTION FOR 

JUDGMENT ON THE PLEADINGS UNDER FED. R. CIV. P. 12(C) 

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TABLE OF CONTENTS 

I. INTRODUCTION .............................................................................................................. 1

II. LEGAL STANDARD ......................................................................................................... 2

III. ARGUMENT ...................................................................................................................... 3

A. The ’270 patent is invalid under Section 101. ........................................................ 4

1. Claims 34 and 55 of the ’270 patent are patent-ineligible. ......................... 5

a. Claims 34 and 55 are directed to the abstract idea of routing 

messages to recipients identified by the sender without first 

requiring a direct connection between the sender and 

recipient........................................................................................... 5

b. Claims 34 and 55 provide no inventive concept and recite 

only generic computer functions and networks. ............................. 9

2. The asserted dependent claims of the ’270 patent are also invalid. .......... 11

B. The ’030 patent is invalid under Section 101. ...................................................... 13

1. Claims 1 and 33 of the ’030 patent are patent-ineligible. ......................... 14

a. Claims 1 and 33 are directed to the abstract idea of 

creating, transmitting, receiving, and storing streaming 

media, and rendering it either in real-time or after-the-fact. ......... 14

b. Claims 1 and 33 provide no inventive concept. ............................ 17

2. The asserted dependent claims of the ’030 patent are also invalid. .......... 18

IV. CONCLUSION ................................................................................................................. 20

 

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TABLE OF AUTHORITIES

 Page(s) 

Cases 

A Pty Ltd. v. eBay, Inc., 

149 F. Supp. 3d 739 (W.D. Tex. 2016) ............................................................................2, 7, 10 

In re Abel, 

838 Fed. App’x 558 (Fed. Cir. 2021) .........................................................................................7 

Affinity Labs of Texas, LLC v. Amazon.com, Inc., 

838 F.3d 1266 (Fed. Cir. 2016)........................................................................................ passim

Affinity Labs of Texas, LLC v. DIRECTV, LLC, 

838 F.3d 1253,1262 (Fed. Cir. 2016).......................................................................8, 12, 17, 18 

Alice Corp. v. CLS Bank Int’l, 

573 U.S. 208 (2014) ......................................................................................................... passim

Apple, Inc. v. Ameranth, Inc., 

842 F.3d 1229 (Fed. Cir. 2016)..................................................................................................8 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) ...................................................................................................................2 

Bridge & Post, Inc. v. Verizon Commc’ns, Inc., 

778 F. App’x 882 (Fed. Cir. 2019) ..........................................................................................10 

Cellspin Soft, Inc. v. Fitbit, Inc., 

927 F.3d 1306 (Fed. Cir. 2019)................................................................................................15 

ChargePoint, Inc. v. SemaConnect, Inc., 

920 F.3d 759 (Fed. Cir. 2019)..............................................................................................2, 11 

Checksum Ventures, LLC v. Dell Inc., 

412 F. Supp. 3d 906 (N.D. Ill. 2019) .......................................................................................12 

Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A., 

776 F.3d 1343,1347 (Fed. Cir. 2014).........................................................................................6 

Customedia Techs., LLC v. Dish Network Corp., 

951 F.3d 1359 (Fed. Cir. 2020)..............................................................................................6, 9 

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Elec. Commc’n Techs., LLC v. ShoppersChoice.com, LLC, 

958 F.3d 1178 (Fed. Cir. 2020)..................................................................................................4 

Elec. Power Grp., LLC v. Alstom S.A., 

830 F.3d 1350 (Fed. Cir. 2016)..........................................................................................12, 18 

Ericsson Inc. v. TCL Comm’n Tech. Holdings Ltd., 

955 F.3d 1317 (Fed. Cir. 2020)........................................................................................8, 9, 11 

Finjan, Inc. v. Blue Coat Sys., Inc., 

879 F.3d 1299 (Fed. Cir. 2018)................................................................................................13 

GoDaddy.com LLC v. RPost Commc’ns Ltd., 

2016 WL 3165536 (D. Ariz. June 7, 2016), aff’d, 685 F. App’x 992 (Fed. Cir. 

2017) ........................................................................................................................................10 

Intellectual Ventures I LLC v. Erie Indemnity Co., 

850 F.3d 1315 (Fed Cir. 2017)...................................................................................................3 

Intellectual Ventures I LLC v. Symantec Corp., 

838 F.3d 1307 (Fed. Cir. 2016)........................................................................................ passim

Lighthouse Consulting Grp., LLC v. BB&T Corp., 

476 F. Supp. 3d 532 (W.D. Tex. 2020) ......................................................................................2 

Mobile Telecomm’s Techs., LLC v. Blackberry Corp., 

2016 WL 2757371 (N.D. Tex. May 12, 2016) ........................................................................15 

Orcinus Holdings, LLC v. Synchronoss Techs., Inc., 

379 F. Supp. 3d 857 (N.D. Cal. 2019), aff’d sub nom. Dropbox, Inc. v. 

Synchronoss Techs., Inc., 815 F. App’x 529 (Fed. Cir. 2020) .................................................10 

PersonalWeb Techs. LLC v. Google LLC, 

2020 WL 520618 (N.D. Cal. Jan. 31, 2020) ............................................................................15 

Raybourne & Dean Consulting, Ltd. v. Metrica, Inc., 

2015 WL 128866214 (W.D. Tex. Apr. 10, 2015) ......................................................................2 

SAP Am., Inc. v. InvestPic, LLC, 

898 F.3d 1161 (Fed. Cir. 2018)........................................................................................2, 3, 13 

Secured Mail Sols. LLC v. Universal Wilde, Inc., 

873 F.3d 905,912 (Fed. Cir. 2017).......................................................................................9, 10 

Simio, LLC v. FlexSim Software Prod., Inc., 

983 F.3d 1353 (Fed. Cir. 2020)..........................................................................................2, 3, 4

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Smart Sys. Innovations, LLC v. Chicago Transit Auth., 

873 F.3d 1364 (Fed. Cir. 2017)..........................................................................................15, 17 

Telinit Techs., LLC v. Alteva, Inc., 

2015 WL 5578604 (E.D. Tex. Sept. 21, 2015) ..........................................................................7 

In re TLI Commc’ns LLC Pat. Litig., 

823 F.3d 607 (Fed. Cir. 2016).......................................................................................... passim

Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC, 

874 F.3d 1329 (Fed. Cir. 2017)........................................................................................ passim

Ultramercial, Inc. v. Hulu, LLC, 

772 F.3d 709 (Fed. Cir. 2014)........................................................................................3, 11, 12 

Voip-Pal.Com, Inc. v. Apple Inc., 

375 F. Supp. 3d 1110 (N.D. Cal. 2019), aff’d sub nom. Voip-Pal.com, Inc. v. 

Twitter, Inc., 798 F. App’x 644 (Fed. Cir. 2020) .......................................................................7 

Statutes 

35 U.S.C. § 101 .................................................................................................................. 1, passim

Other Authorities 

Federal Rule of Civil Procedure 12(b)(6) ..............................................................................2, 3, 16

Federal Rule of Civil Procedure 12(c) .....................................................................................1, 2, 3 

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Defendants Facebook, Inc. and Instagram LLC (collectively, “Facebook”) hereby move 

for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) as to Counts I and IV 

of Plaintiffs Voxer, Inc. and Voxer IP, LLC’s (collectively, “Voxer”) Complaint. The patents 

asserted in those counts are directed to unpatentable subject matter and therefore are invalid. 

I. INTRODUCTION1

Although they are dressed up in technical jargon, two of the five patents asserted against 

Facebook claim nothing more than computer implementations of abstract ideas that are ineligible 

for patent protection under 35 U.S.C. § 101 (“Section 101”). The ’270 patent2

 asserted in Count 

IV is directed to the abstract idea of routing messages to recipients identified by the sender without 

first requiring a direct connection between the sender and recipient. This abstract idea encompasses 

long-practiced human behavior for routing communications through corporate mailrooms, 

telephone switchboards, and myriad other message delivery systems. The ’030 patent3 asserted in 

Count I is directed to the abstract idea of transmitting, receiving, and storing streaming media, and 

rendering it either in real time or after the fact. This patent too seeks to claim an abstract idea 

encompassing long-practiced, pre-computer communication methods, including broadcast 

television and telephonic communications. 

Nor do any of the asserted claims of the ’270 patent or ’030 patent, individually or in 

ordered combination, provide an “inventive concept” that would make them patent-eligible. 

Instead, they merely call for generalized steps to be executed through generic computer 

components and functions, essentially describing abstract processes and adding “do it on a 

1

 All quotations and citations have been removed and emphases added unless otherwise noted. 

2

 The “’270 patent” refers to United States Patent No. 10,142,270 (Dkt. No.1, Ex. D). 

3

 The “’030 patent” refers to United States Patent No. 8,180,030 (Dkt. No. 1, Ex. A). 

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computer.” These patent claims are therefore invalid under Section 101, and the Court should grant 

judgment on the pleadings as to Counts I and IV of the Complaint under Rule 12(c). 

II. LEGAL STANDARD 

A motion for judgment on the pleadings under Rule 12(c) may be made “after the pleadings 

are closed.” A Pty Ltd. v. eBay, Inc., 149 F. Supp. 3d 739, 741 (W.D. Tex. 2016) (quoting Fed. R. 

Civ. P. 12(c)).4 Such a motion is “subject to the same standard as a motion to dismiss under Rule 

12(b)(6).” Lighthouse Consulting Grp., LLC v. BB&T Corp., 476 F. Supp. 3d 532, 536 (W.D. Tex. 

2020). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009). 

Eligibility under Section 101 is a question of law that may be resolved on a motion to 

dismiss or for judgement on the pleadings where no factual allegations exist that, taken as true, 

prevent resolving the eligibility question as a matter of law. ChargePoint, Inc. v. SemaConnect, 

Inc., 920 F.3d 759, 765 (Fed. Cir. 2019); see also SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 

1166 (Fed. Cir. 2018) (“Like other legal questions based on underlying facts, this question may 

be, and frequently has been, resolved on a Rule 12(b)(6) or (c) motion where the undisputed facts, 

considered under the standards required by that Rule, require a holding of ineligibility under the 

substantive standards of law.”); Simio, LLC v. FlexSim Software Prod., Inc., 983 F.3d 1353, 1359-

66 (Fed. Cir. 2020) (affirming order granting motion to dismiss based on Section 101); 

ChargePoint, 920 F.3d at 764-65, 777 (same).

4

 Documents, such as the asserted patents, “expressly referenced in a complaint and attached to 

that pleading become a part of the pleading for purposes of a Rule 12(c) motion.” Raybourne & 

Dean Consulting, Ltd. v. Metrica, Inc., 2015 WL 128866214, at *5 (W.D. Tex. Apr. 10, 2015). 

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Determination of patent eligibility under Section 101 is a two-step process. Alice Corp. v. 

CLS Bank Int’l, 573 U.S. 208, 217-18 (2014). First, the Court must determine whether the patent 

claims are directed to an abstract idea. See id. Courts “look to whether the claims in the patent 

focus on a specific means or method, or are instead directed to a result or effect that itself is the 

abstract idea and merely invokes generic processes and machinery.” Two-Way Media Ltd. v. 

Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1337 (Fed. Cir. 2017). If the focus of the claims 

is a long-standing practice, or a process that could be performed by a human without a computer, 

then the claims are directed to an abstract idea. See Alice, 573 U.S. at 219. 

At Alice step two, the court determines whether the claims include an “inventive concept 

sufficient to transform the claimed abstract idea into a patent-eligible application.” Alice, 573 U.S. 

at 221. If the “additional features” described in the claim recite nothing more than “wellunderstood, routine, conventional activity,” the abstract idea is patent-ineligible. Intellectual 

Ventures I LLC v. Erie Indemnity Co., 850 F.3d 1315, 1328 (Fed Cir. 2017). To be patent-eligible, 

a claim must do “significantly more than simply describe [the] abstract method” and state “apply 

it.” Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014). 

III. ARGUMENT 

The asserted claims of the ’270 and ’030 patents are abstract and include no inventive 

concept. They are therefore invalid under Section 101. Moreover, no factual allegations exist that, 

taken as true, preclude adjudicating the patents’ validity at this stage. Voxer’s Complaint offers 

only conclusory assertions of non-abstractness and inventiveness, which do not preclude this Court 

from determining patent eligibility as a matter of law. See Dkt. No. 1 (Complaint) ¶¶ 35, 41, 44-

45; Simio, 983 F.3d at 1365 (“We disregard conclusory statements when evaluating a complaint 

under Rule 12(b)(6).”); SAP Am., 898 F.3d at 1170 (Section 101 invalidity determination was 

“properly drawn under the standards governing Rule 12(c) motions”). 

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Nor is claim construction an impediment to granting Facebook’s motion. Patent eligibility 

may be determined even before claim construction if the patentee fails to explain how a term’s 

construction “could affect the analysis.” Simio, 983 F.3d at 1365; Elec. Commc’n Techs., LLC v. 

ShoppersChoice.com, LLC, 958 F.3d 1178, 1184 (Fed. Cir. 2020). Here, however, the Court has 

already issued its claim construction ruling (Dkt. No. 74), and nothing in that Order precludes a 

determination of patent eligibility as a matter of law. 

A. The ’270 patent is invalid under Section 101. 

To address supposed inadequacies in then-existing communications systems, such as 

conventional telephone-based communications, the ’270 patent purports to describe a method “that 

supports new modes of engaging in conversations and/or managing multiple conversations using 

a variety of media types.” ’270 patent at 4:10-15; id. at 2:11-12, 4:1-6. Using the disclosed method, 

“[u]sers can engage in conversations by sending messages to designated recipients.” Id. at 4:15-

16. The ’270 patent teaches that the message “contains an identifier associated with the target 

recipient,” and that, “[i]n response,” the server “finds a delivery route to . . . the intended or targeted 

recipient.” Id. at 22:41-45. The ’270 patent explains that translation of the identifier to a delivery 

location could be accomplished by any of various known methods. Id. at 26:14-17 (“the system 10 

uses one of the above-mentioned or other known addressing schemes for delivery of Vox packets 

95 to the correct location”). Additionally, because the purported invention routes messages through 

an intermediate server, no direct connection between the sender and recipient is required. See id. 

at l:37-46 (describing prior art systems, such as traditional telephony, requiring that a connection 

first be established); Figs. 1, 8A. 

Voxer asserts two independent claims of the ’270 patent: claims 34 and 55. Claim 34 

recites: 

A video communication method, comprising: 

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receiving an identifier associated with a video communication transmitted by a 

sending communication device over a network, the identifier identifying a recipient 

of the video communication; 

ascertaining, in response to receipt of the identifier, a location on the network for a 

second communication device associated with the recipient and connected to the 

network; 

receiving the video communication from the sending communication device 

independently of the location for the second communication device being 

ascertained; 

storing the video communication; and 

delivering portions of the video communication over the network to the second 

communication device using the location, the delivery enabling the video 

communication to be at least partially rendered at the second communication device 

while the video communication is transmitted by the sending communication 

device, 

wherein receiving the video communication from the sending communication 

device occurs without having to first establish an end-to-end connection over the 

network between the sending and the second communication device. 

’270 patent, cl. 34. For purposes of the Section 101 analysis, claim 55 is indistinguishable from 

claim 34. Like claim 34, claim 55 recites a method comprising the steps of receiving a video 

communication; receiving an identifier identifying a recipient; ascertaining a location for the 

recipient device in response to receipt of the identifier; storing the video communication; and 

delivering the video communication using the ascertained location without having to first establish 

an end-to-end connection between the sending and receiving devices. 

1. Claims 34 and 55 of the ’270 patent are patent-ineligible. 

a. Claims 34 and 55 are directed to the abstract idea of routing 

messages to recipients identified by the sender without first 

requiring a direct connection between the sender and recipient. 

The alleged innovation claimed by the ’270 patent consists of routing messages to a 

recipient identified by the sender without first requiring a direct connection between the sender 

and the recipient. The claims achieve this aspiration using generalized steps to carry out generic 

functions: “receiving” a communication, “receiving” an identifier identifying a recipient, “storing” 

the communication, “ascertaining” a delivery location, and “delivering” the communication for 

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rendering at the receiving device. ’270 patent, cls. 34, 55. The claims describe no structure for 

performing these functions, nor do they describe technology “directed to an improvement to the 

functionality of the computer or network platform itself.” Customedia Techs., LLC v. Dish Network 

Corp., 951 F.3d 1359, 1365 (Fed. Cir. 2020) (invalidating claims that “do not enable computers to 

operate more quickly or efficiently, nor do they solve any technological problem”). 

In essence, the abstract concept claimed in the ’270 patent is no different than the longstanding practice of using a corporate mailroom to route communications between employees. 

Long before the Internet age, office workers sent interoffice communications using “identifiers” 

(such as a name or initials) specifying the intended recipient. The corporate mailroom would then 

map the “identifier” to a “location” associated with the recipient (such as an office or inbox) and 

then “deliver” the communication “using the location.” Although the ’270 patent applies this 

fundamental economic practice to the technical environment of a computer network, “with the 

exception of generic computer-implemented steps, there is nothing in the claims themselves that 

foreclose them from being performed by a human, mentally or with pen and paper.” Intellectual 

Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016). For instance, while the 

claims require “storing” the video communication, such generic computer functionality does not 

save a claim from a determination of abstractness. See, e.g., Content Extraction & Transmission 

LLC v. Wells Fargo Bank, N.A., 776 F.3d 1343,1347 (Fed. Cir. 2014); In re TLI Commc’ns LLC 

Pat. Litig., 823 F.3d 607, 611-12 (Fed. Cir. 2016); Affinity Labs of Texas, LLC v. Amazon.com, 

Inc., 838 F.3d 1266, 1269-70 (Fed. Cir. 2016). 

Not surprisingly, courts have repeatedly found that claims like the ’270 patent’s recite 

unpatentable abstract ideas. In Symantec, for instance, the Federal Circuit held that claims reciting 

a computer-implemented method for “receiving, screening, and distributing e-mail” were abstract 

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and unpatentable. 838 F.3d at 1316-18. The Federal Circuit recognized that these steps were 

analogous to those performed by corporate mailrooms, which “receive correspondence, keep 

business rules defining actions to be taken regarding correspondence based on attributes of the 

correspondence, apply those business rules to correspondence, and take certain actions based on 

the application of business rules.” Id. at 1316-17. As the court held, such claims are abstract 

because they recite nothing more than “methods of organizing human activity” and “fundamental 

practices long prevalent in our system.” Id. at 1318. 

Similarly, in Two-Way Media, the Federal Circuit held that a claimed method for routing 

“streams of audio and/or visual information” over a communication network was directed to an 

abstract idea. 874 F.3d at 1334-35, 1337. The court noted that “[t]he claim requires the functional 

results of converting, routing, controlling, monitoring, and accumulating records,” but “recite[s] 

only conventional computer components” and fails to “sufficiently describe how to achieve these 

results in a non-abstract way.” Id. at 1337-38. 

Likewise, in A Pty Ltd., a court in this District held that a claim directed to “[u]sing 

information in a message’s destination address to look up the recipient’s correct address” recited 

a patent-ineligible abstract idea. 149 F. Supp. 3d at 744. The court explained that the patent 

“involves a method of doing business (i.e. the idea of using information in a message’s destination 

address to look up the recipient’s correct address), but does not involve any data modification in a 

way that will affect the communication system itself.” Id. at 745.5

5

 Numerous other courts have likewise recognized that claims directed to routing communications 

based on identifiers are abstract. See, e.g., In re Abel, 838 Fed. App’x 558, at *2 (Fed. Cir. 2021) 

(claims directed to “using a generic computer as a tool to perform a [known] communication 

practice—giving a message to an intermediary who, unlike the sender, knows the intended 

recipient’s location” were abstract; noting that that this practice “is familiar in the economic sphere 

and elsewhere”); Telinit Techs., LLC v. Alteva, Inc., 2015 WL 5578604, at *17 (E.D. Tex. Sept. 

21, 2015) (computer acting as an intermediary for routing and monitoring IP-based 

communications was “precisely the function of a telephone operator”); Voip-Pal.Com, Inc. v. 

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The independent claims of the ’270 patent are no different. They simply take the age-old 

human activity of routing communications through an intermediary and say “do it on a computer.”

Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1243 (Fed. Cir. 2016). The claims do not describe 

an “improvement to computer functionality itself.” Affinity Labs of Texas, LLC v. DIRECTV, LLC, 

838 F.3d 1253,1262 (Fed. Cir. 2016). At most, they “are directed to the use of conventional or 

generic technology in a nascent but well-known environment, without any claim that the invention 

reflects an inventive solution to any problem presented by combining the two.” TLI Commc’ns, 

823 F.3d at 612; Ericsson Inc. v. TCL Comm’n Tech. Holdings Ltd., 955 F.3d 1317, 1328 (Fed. 

Cir. 2020) (claiming functions “in general terms, without limiting them to technical means for 

performing the functions that are arguably an advance, does not make a claim eligible at step one”). 

Voxer may argue that the requirement in the ’270 patent claims of enabling the video 

communication to be rendered while it is being transmitted by the sending device (i.e., streaming) 

recites an improvement to computer technology. But the claims do not describe any supposed 

improvement to prior art streaming technology; rather, they use purely functional language to 

describe a desired outcome. Here, as in numerous other cases, “[t]he purely functional nature of 

the claim[s] confirms that [they are] directed to an abstract idea, not to a concrete embodiment of 

that idea.” Amazon.com, 838 F.3d at 1269. 

In Amazon.com for instance, the Federal Circuit held that a claim reciting “a network-based 

media system with a customized user interface, in which the system delivers streaming content 

from a network-based resource upon demand to a handheld wireless electronic device having a 

Apple Inc., 375 F. Supp. 3d 1110, 1130-34 (N.D. Cal. 2019) (method for routing voice or video 

calls based on caller and callee “identifiers” was abstract), aff’d sub nom. Voip-Pal.com, Inc. v. 

Twitter, Inc., 798 F. App’x 644 (Fed. Cir. 2020). 

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graphical user interface” was directed to a patent-ineligible abstract idea. 838 F.3d at 1268-71. The 

plaintiff had argued that the patent “embodied a concrete technological innovation because, as of 

its priority date (March 28, 2000), wireless streaming of media was not ‘routine, conventional, or 

well-known.’” Id. at 1269. Rejecting that argument, the Federal Circuit noted that the claims at 

issue, like those of the ’270 patent, “do no more than describe a desired function or outcome, 

without providing any limiting detail that confines the claim to a particular solution to an identified 

problem.” Id. Accordingly, the claims were directed to an abstract idea. 

b. Claims 34 and 55 provide no inventive concept and recite only 

generic computer functions and networks. 

Turning to Alice step two, the claims of the ’270 patent fail (individually or in ordered 

combination) to provide an inventive concept that would make them patent-eligible. Instead, the 

claims themselves simply instruct the practitioner to implement the abstract idea by performing 

generalized functions such as “receiving,” ascertaining,” “storing,” and “delivering.” “Merely 

reciting the use of a generic computer . . . cannot convert a patent-ineligible abstract idea into a 

patent-eligible invention.” Two-Way Media, 874 F.3d at 1338. Indeed, the ’270 patent claims fail 

even to recite generic computer components; they recite merely functions without specifying any

structure. See Secured Mail Sols. LLC v. Universal Wilde, Inc., 873 F.3d 905,912 (Fed. Cir. 2017)

(“non-specific” claims “lack[ing in] technical detail” failed to provide an inventive concept); 

Customedia, 951 F.3d at 1366 (“generic and functional hardware is insufficient to render eligible 

claims directed to an abstract idea”). 

To the extent the recited functions require computer implementation, nothing in the claims 

suggests the need for “anything other than conventional computer and network components 

operating according to their ordinary functions.” Two-Way Media, 874 F.3d at 1341. This alone is 

dispositive because “an inventive concept must be evident in the claims.” Id. at 1338; Ericsson, 

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955 F.3d at 1329. Even were the Court to look beyond the claims, “[t]he specification [only] 

confirms that the implementation of the abstract idea is routine and conventional.” Symantec, 838 

F.3d at 1318. Although the specification describes implementing the abstract idea using an 

intermediate server, use of a server for network communications is purely conventional. TLI 

Commc’ns, 823 F.3d at 611-12, 614; Symantec, 838 F.3d at 1318; GoDaddy.com LLC v. RPost 

Commc’ns Ltd., 2016 WL 3165536, at *19 (D. Ariz. June 7, 2016), aff’d, 685 F. App’x 992 (Fed. 

Cir. 2017) (“the disclosed ‘server’ is indisputably not new”). The ’270 patent does not disclose an 

improved server, nor does it provide any technical detail regarding the tangible components. See 

’270 patent, Fig. 14B; id. at 43:62-44:1 (describing generic server hardware: “The [server] 

hardware includes a CPU 152, main memory 154, mass storage 156, and the archive 89. As is well 

known in the art, the server application 78 is loaded and stored in main memory 154 and mass 

storage 156 and executed by the CPU 152.”). At most, the disclosed server “provide[s] a generic 

environment in which to carry out the abstract idea.” TLI Commc’ns, 823 F.3d at 611. 

Nor is there anything inventive about how the claimed functions are performed. Courts 

have recognized that “[u]se of an identifier in conjunction with data transfer is routine.” Orcinus 

Holdings, LLC v. Synchronoss Techs., Inc., 379 F. Supp. 3d 857, 880 (N.D. Cal. 2019), aff’d sub 

nom. Dropbox, Inc. v. Synchronoss Techs., Inc., 815 F. App’x 529 (Fed. Cir. 2020).6

 Likewise, the 

’270 patent fails to describe any novel method of “ascertaining” a delivery location “in response 

to receipt of” an “identifier identifying a recipient.” Instead, the specification identifies preexisting addressing schemes, such as DNS, and explains that the system “uses one of the above6 See also, e.g., Secured Mail, 873 F.3d at 912 (“The district court is correct that the sendergenerated identifier is not a sufficiently inventive concept.”); Bridge & Post, Inc. v. Verizon 

Commc’ns, Inc., 778 F. App’x 882, 888-89 (Fed. Cir. 2019) (claims directed to using persistent 

identifiers received from a user’s device for implementing targeted marketing were directed to 

patent-ineligible abstract idea); A Pty Ltd., 149 F. Supp. 3d at 744-46. 

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mentioned or other known addressing schemes for delivery of Vox packets 95 to the correct 

location.” ’270 patent at 26:5-17. Moreover, the recited steps of receiving, storing, and delivering 

data are entirely routine and conventional, as numerous courts have held. See, e.g., TLI Commc’ns, 

823 F.3d at 612 (“storing, receiving, and extracting data” are “generic computer functions” that do 

not provide an inventive concept); Ultramercial, 772 F.3d at 717. 

The functional recitation of real-time data transmission and rendering also fails to provide 

an inventive concept. Real-time communication over computer networks was not new at the time 

of the alleged invention. See ’270 patent at 2:37-44 (describing prior art VoIP technology). In any 

event, the claims provide nothing more than a functional recitation of a desired outcome, which 

cannot provide an inventive concept. See, e.g., Amazon.com, 838 F.3d at 1269. 

To the extent Voxer may contend that that the “without having to first establish an end-toend connection” limitation recites an inventive concept, that limitation uses generic functional 

language to describe the abstract idea itself. See ChargePoint, 920 F.3d at 775–77 (recitation of 

abstract idea cannot supply inventive concept). The claims do not recite any innovative method 

for facilitating real-time communication between parties without requiring a connection, nor do 

the claims recite any structure for accomplishing that abstract idea. At most, the “end-to-end 

connection” limitation states a desired outcome, which is insufficient. See Two-Way Media, 874 

F.3d at 1339; Amazon.com, 838 F.3d at 1269; Ericsson, 955 F.3d at 1329-31. 

2. The asserted dependent claims of the ’270 patent are also invalid. 

The asserted dependent claims of the ’270 patent fare no better as they only add additional 

abstraction, generic computer components, or insignificant post-solution activity. 

Claims 36 and 47 describe nothing more than generic computer implementation of the 

abstract idea. Claim 36 implements the abstract idea using a generic software application running 

on a sending device, while claim 47 adds the requirement of using “a plurality of servers.” Such 

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generic computer implementation cannot transform the abstract idea into a patent-eligible 

invention. See Alice, 573 U.S. at 212, 220. 

Claims 37, 38, 40, 43, and 44 recite, at most, insignificant details regarding the manner in 

which the abstract idea of the independent claims is carried out. Claims 37 and 38, for instance, 

recite enabling the sending device to start transmission before the location of the recipient device 

is ascertained (claim 37) or regardless of whether the recipient device is available (claim 38). At 

most, these claims recite “particular choices” from the range of conventional transmission 

methods, without any concrete implementation detail, and therefore do not contain “significantly 

more” than the abstract idea itself. DIRECTV, 838 F.3d at 1264; Alice, 573 U.S. at 222. 

Likewise, claims 40, 43, and 44 add nothing more than “token extra-solution activity.” 

Ultramercial, 772 F.3d at 714. Claim 40 requires that the sender be able to identify the recipient, 

and not in any purportedly novel way. Claim 43 simply expands the abstract idea to include 

receiving “a plurality of identifiers” and “ascertaining a plurality of locations.” Claim 44 merely 

specifies that the video communication is delivered to “the location” using an IP address associated 

with the receiving device. These additional, equally aspirational limitations regarding the manner 

in which the abstract idea is carried out cannot save the claims from invalidity. 

Claims 48 and 49 simply tack on generic data processing techniques, such as transcoding 

and encryption, without specifying any allegedly inventive method or structure. Requiring use of 

such conventional techniques specified in broad functional language likewise fails provide an 

inventive concept. See, e.g., Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354–56 (Fed. 

Cir. 2016); Two-Way Media, 874 F.3d at 1338 (holding that encoding and decoding image data 

and converting formats are abstract ideas, not a specific purported advance in implementation); 

Checksum Ventures, LLC v. Dell Inc., 412 F. Supp. 3d 906, 919 (N.D. Ill. 2019) (“Merely saying, 

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‘encrypt it’ is just an application of the abstract idea of encryption itself and is therefore patent 

ineligible.”). 

Claims 41 and 51 only add further abstraction. Claim 41 uses generic results-driven 

language to describe enabling the recipient to render a video communication either in real-time or 

a time-shifted mode. Claim 51 recites providing the same ability to multiple recipient devices. 

Neither of these claims “enables a computer . . . to do things it could not do before.” Finjan, Inc. 

v. Blue Coat Sys., Inc., 879 F.3d 1299, 1305 (Fed. Cir. 2018). Rather, such claims focus on an 

alleged “improvement in wholly abstract ideas.” SAP Am., 898 F.3d at 1168. 

B. The ’030 patent is invalid under Section 101. 

Like the ’270 patent, the ’030 patent purports to address supposed inadequacies in thenexisting telecommunications systems. ’030 patent at 1:20-5:14. Specifically, the ’030 patent 

purports to disclose “new modes of engaging in conversations and/or managing multiple 

conversations” in which users can “conduct communications in either: (i) a near-synchronous or 

‘live’ conversation, providing a user experience similar to a standard full duplex phone call; or (ii) 

in a series of back and forth time-delayed transmissions.” Id. at 3:67-4:15. 

Voxer asserts two independent claims of the ’030 patent: claims 1 and 33. Claim 33 recites: 

A communication method for communicating using a communication device, 

comprising: 

progressively and persistently storing streaming media created using the 

communication device as the streaming media is created; 

progressively transmitting the streaming media over a network as the 

streaming media is created and persistently stored; 

progressively and persistently storing streaming media received over the 

network from a remote communication device as the streaming media is 

received; and 

selectively rendering, for the first time, the received streaming media using 

one of two rendering options, the two rendering options including both (i) a 

real-time mode as the streaming media is received over the network and (ii) 

a time-shifted mode by retrieving and rendering the retrieved streaming 

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media from persistent storage. 

The other independent claim, claim 1, consists of the same substantive limitations as claim 33, but 

directed to a computer-readable application. See ’030 patent, cl. 1. 

1. Claims 1 and 33 of the ’030 patent are patent-ineligible. 

a. Claims 1 and 33 are directed to the abstract idea of creating, 

transmitting, receiving, and storing streaming media, and 

rendering it either in real-time or after-the-fact. 

Claims 1 and 33 of the ’030 patent are directed to nothing more than the abstract idea of 

creating, transmitting, receiving, and storing streaming media, and rendering it either in real-time 

or after-the-fact. They do so using only “result-based functional language,” and do not “describe 

how to achieve these results in a non-abstract way.” Two-Way Media, 874 F.3d at 1337. Through 

their functional, results-oriented language, claims 1 and 33 seek to monopolize a “fundamental ... 

practice long prevalent[.]” Symantec, 838 F.3d at 1314. 

Transmitting, receiving, and storing streaming media, and rendering it either in real-time 

or after-the-fact is a longstanding practice in both broadcast television and telephonic 

communications. Live television broadcasts, for example, have long been routinely stored by the 

broadcaster as they are created, for both archival and rebroadcasting purposes. And a viewer with 

a video recording device—such as a videocassette recorder (“VCR”), which has been widely 

available since the 1970s—could view the broadcast live while simultaneously storing it for 

subsequent replaying. Alternatively, a viewer could set their video recording device to record the 

incoming broadcast while the television was turned off for the purpose of viewing the broadcast 

for the first time after-the-fact. Likewise, in the field of telephony, devices for recording telephone 

conversations have existed since at least the early 20th century. Answering machines have been 

used to time-shift received telephonic communications since the 1930s, and voicemail services 

have been in widespread use since the 1980s. The ’030 patent itself acknowledges that its “live” 

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mode is “similar to a standard full duplex phone call,” and refers to its claimed “time-shifted mode” 

as “voice messaging,” making plain the analogy to conventional telecommunications practices. 

’030 patent at 4:12-14, 6:17-19. 

 Courts have routinely found claims analogous to the ’030 patent’s to be directed to abstract 

ideas. Specifically, courts have held that “[t]he idea of sending and storing messages,” Mobile 

Telecomm’s Techs., LLC v. Blackberry Corp., 2016 WL 2757371, at *3 (N.D. Tex. May 12, 2016), 

“the idea of capturing and transmitting data from one device to another,” Cellspin Soft, Inc. v. 

Fitbit, Inc., 927 F.3d 1306, 1315 (Fed. Cir. 2019), “the collection, storage, and recognition of 

data,” Smart Sys. Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1372 (Fed. Cir. 

2017), “delivering user-selected media content to portable devices,” Amazon.com, 838 F.3d at 

1269, and “generating, transmitting, receiving, and storing data,” PersonalWeb Techs. LLC v. 

Google LLC, 2020 WL 520618, at *11 (N.D. Cal. Jan. 31, 2020), are all abstract ideas. 

The Federal Circuit’s decision in TLI Communications is particularly instructive. There, 

the Federal Circuit considered a claim for: 

A method for recording and administering digital images, comprising the steps of: 

recording images using a digital pick up unit in a telephone unit, 

storing the images recorded by the digital pick up unit in a digital form as 

digital images, 

transmitting data including at least the digital images and classification 

information to a server, wherein said classification information is 

prescribable by a user of the telephone unit for allocation to the digital 

images, 

receiving the data by the server, 

extracting classification information which characterizes the digital images 

from the received data, and 

storing the digital images in the server, said step of storing taking into 

consideration the classification information. 

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TLI Commc’ns, 823 F.3d at 610. The district court held on a Rule 12(b)(6) motion that this claim 

was patent ineligible under Section 101 and Alice, and the Federal Circuit agreed. At Alice step 

one, the Federal Circuit observed that while the claim “requires concrete, tangible components 

such as ‘a telephone unit’ and a ‘server,’ the specification makes clear that the recited physical 

components merely provide a generic environment in which to carry out the abstract idea of 

classifying and storing digital images in an organized manner.” Id. at 611. The court further noted 

that “the claims here are not directed to a specific improvement to computer functionality. Rather, 

they are directed to the use of conventional or generic technology in a nascent but well-known 

environment . . . .” Id. at 612. Accordingly, the court held that the claim was directed to an abstract 

idea at Alice step one. Id. at 613. 

The independent claims of the ’030 patent suffer all the same defects identified in TLI 

Communications. Indeed, they do not even “require[] concrete, tangible components,” much less 

disclose “a specific improvement to computer functionality.” Id. at 611-12. Moreover, the ’030 

patent’s specification makes clear that the transmitting, receiving, storing and rendering of media 

described in the claims are implemented using conventional computing technology. The 

specification describes the “device” that carries out the claimed steps as “a general-purpose 

computer, a portable computing device, a programmable phone, a programmable radio, or any 

other programmable communication device.” ’030 patent at 7:38-44. Likewise, the “system 

architecture” for the ’030 patent’s claimed inventions consists entirely of generic components, 

including the aforementioned “devices,” “a communication services network 14, including one or 

more Servers,” and “[o]ne or more networks” which “may be the Public Switched Telephone 

Network (PSTN), a cellular network based on CDMA or GSM for example, the Internet, a tactical 

radio network, or any other communication network, or a combination thereof.” Id. at 11:28-49. 

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In other words, “[t]he specification does not describe a new telephone, a new server, or a new 

physical combination of the two,” but instead “describes the system and methods in purely 

functional terms.” TLI Commc’ns, 823 F.3d at 612; see also Two-Way Media, 874 F.3d at 1337 

(“Claims directed to generalized steps to be performed on a computer using conventional computer 

activity are not patent eligible.”); Smart Sys. Innovations, 873 F.3d at 1371 (“We look to whether 

the claims focus on a specific means or method that improves the relevant technology or are instead 

directed to a result or effect that itself is the abstract idea and merely invoke generic processes and 

machinery.”). Like the claim in TLI Communications, claims 1 and 33 are directed to nothing more 

than an abstract idea. 

b. Claims 1 and 33 provide no inventive concept. 

Because the ’030 patent’s independent claims “use[] generic functional language to achieve 

... purported solutions[,] [i]nquiry therefore must turn to any requirements for how the desired 

result is achieved.’” Two-Way Media, 874 F.3d at 1339. Here, “[n]othing in the claims or their 

constructions ... requires anything other than conventional computer and network components 

operating according to their ordinary functions.” Id. Claim 33 “uses a conventional ordering of 

steps ... with conventional technology to achieve its desired result.” Id. It goes without saying that 

streaming media must be created before it can be stored and transmitted by a sender. Likewise, 

streaming media must be received before it can be stored and rendered by the recipient. Claims 1 

and 33 do nothing more than recite this conventional ordering of steps. 

Moreover, claim 33 accomplishes this conventional ordering of steps using nothing more 

than generic computer components—something “insufficient to transform a patent-ineligible 

abstract idea into a patent-eligible invention” DIRECTV, 838 F.3d at 1262-63. The specification 

makes clear that the “hardware of a Device 13 used for storing and executing the Client application 

12” requires nothing more than the conventional components of “a CPU 142, main memory 144 

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and mass storage 146.” ’030 patent at 42:43-49. The specification acknowledges that it “is well 

known in the art that the Client application 12 is loaded and stored in main memory 144 and mass 

storage 146 and executed by the CPU 142.” Id. Similarly, the specification makes clear that “the 

hardware of a Server 16 used for storing and executing the server application 78” also requires 

nothing more than the conventional components of “a CPU 152, main memory 154, mass storage 

156, and the archive 89,” the last of which “is a mass storage device.” Id. at 42:50-56; 22:9-10. 

Again, the specification acknowledges that it “is well known in the art [that] the server application 

78 is loaded and stored in main memory 154 and mass storage 156 and executed by the CPU 152.” 

Id. In short, claims 1 and 33 do not “improve the functioning of the computer itself,” Alice, 573 

U.S. at 225. Rather, the claims recite generalized steps to carry out generic computer functions. 

2. The asserted dependent claims of the ’030 patent are also invalid. 

The asserted dependent claims of the ’030 patent are all directed to the same abstract idea: 

creating, transmitting, receiving, and storing streaming media, and rendering it either in real-time 

or after-the-fact. None of the additional limitations of these claims have “distinctive significance” 

for purposes of the Alice analysis. Elec. Power Grp., 830 F.3d at 1352. 

Claims 16, 47, and 48 merely cover transitioning between real-time and after-the-fact 

rendering. This is not conceptually distinct from rendering streaming media in either real-time or 

after-the-fact, which is represented by the independent claims, and the claims are just as nonspecific and results-oriented as the independent claims. 

Claims 4 and 36 repackage the concept of reviewing streaming media in real-time or afterthe-fact in terms of “synchronous” or “asynchronous” communications. But as the ’030 patent’s 

specification explains, any distinction between synchronous and asynchronous communications 

and real-time or after-the-fact (i.e., time-shifted) rendering is immaterial for purposes of Section 

101. See, e.g., ’030 patent at 14:46-49 (communications “may flow between near synchronous (i.e. 

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live or real-time) and asynchronous (i.e., time-shifted or voice messaging modes)”). Moreover, the 

specification explains that the distinction between “synchronous” and “asynchronous” 

communications simply depends on the rate at which users decide to review and respond to 

incoming messages: 

If two Users are actively engaged in a given Conversation and the User controlled 

delay between transmissions is minimal, the experience will be one of a 

synchronous full duplex conversation, as with current telephone or VoIP 

conversations. If either User delays their participation, for whatever reason, the 

Conversation drifts towards an asynchronous voice (or other Media) messaging 

experience. 

’030 patent at 14:35-42. Thus, the synchronous and asynchronous modes claimed by claims 4 and 

36 do not encompass any technological innovation. 

Claim 38 simply requires the application of the concept represented by independent claim 

33 to a particular type of streaming media: “indexed media payloads.” Applying the abstract idea 

represented by claim 33 to a particular, well-known type of communication does not make the 

limitation of claim 38 conceptually distinctive. The specification of the ’030 patent itself notes that 

“the system 10 takes advantage of current packet-based communication networks running over the 

existing telecommunications infrastructure.” ’030 patent at 22:54-56. The specification further 

states: “The system 10 is intended to run or be layered over a variety of existing communication 

networks 18, such as the Internet, fixed PSTN type circuit networks, and mobile or cellular phone 

networks, or a combination thereof.” Id. at 23:63-66. 

Claims 13 and 44 merely require that the abstract idea of the independent claims be applied 

when the broadcasting device is unable to transmit the streaming media at the time of its creation, 

so transmission happens subsequently. These claims are directed to determining if a 

communication device is unable to transmit communications and then when transmission is 

possible, transmitting the communication out of storage. But, like the independent claims, claims 

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13 and 44 use purely “result-based functional language” and do nothing to “describe how to 

achieve these results in a non-abstract way.” Two-Way Media, 874 F.3d at 1337. 

Moreover, like the independent claims, claims 13 and 44 attempt to monopolize a 

“fundamental . . . practice long prevalent.” Symantec, 838 F.3d at 1314. Ascertaining whether a 

communication device is unable to transmit communications is a conventional idea that has been 

practiced by humans for as long as communication devices capable of transmitting 

communications have existed. For instance, a person attempting to make a telephone call can 

ascertain whether the attempted connection fails. Likewise, a television news crew covering a live 

event can ascertain that their broadcast has been disrupted by technical issues. 

Waiting to transmit a communication out of storage until transmission is possible is also a 

conventional idea that has been practiced by humans for at least as long as tape-delayed television 

broadcasts have existed. For instance, when a live sports broadcast is disrupted by technical 

difficulties, the event is typically still captured in persistent storage by the broadcaster, and 

subsequent rebroadcasts can be aired with the previously disrupted portion included. 

None of the asserted dependent claims of the ’030 patent contain any inventive concept 

sufficient to transform them into patent-eligible applications. Each claim can be implemented 

using the same generic computer as claims 1 and 33, and does not “improve the functioning of the 

computer itself,” Alice, 573 U.S. at 225, but “uses a conventional ordering of steps . . . with 

conventional technology to achieve its desired result.” Two-Way Media at 874 F.3d at 1339. 

IV. CONCLUSION 

For the foregoing reasons, the Court should grant judgment on the pleadings in favor of 

Facebook as to Counts I and IV. 

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Respectfully submitted, 

By: s/ Robert A. Van Nest, with permission by 

Michael E. Jones 

Dated: March 29, 2021 Michael E. Jones 

SBN: 10929400 

Patrick C. Clutter 

SBN: 24036374 

POTTER MINTON, PC 

110 North College, Suite 500 

Tyler, Texas 75702 

Tel: 903-597-8311 

Fax: 903-593-0845 

mikejones@potterminton.com 

patrickclutter@potterminton.com 

Robert A. Van Nest 

rvannest@keker.com 

Christa M. Anderson 

canderson@keker.com 

David J. Silbert 

dsilbert@keker.com 

Eugene M. Paige 

epaige@keker.com 

Matthew W. Werdegar 

mwerdegar@keker.com 

Paven Malhotra 

pmalhotra@keker.com 

KEKER, VAN NEST & PETERS LLP 

633 Battery Street 

San Francisco, CA 94111 

Tel: 415-391-5400 

Attorneys for Defendants 

FACEBOOK, INC. and INSTAGRAM LLC 

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CERTIFICATE OF SERVICE 

The undersigned certifies that on March 29, 2021, I electronically filed this document with 

the Clerk of Court via the Court’s CM/ECF system which will send notification of such filing to 

all counsel of record, all of whom have consented to electronic service in this action. 

/s/ Michael E. Jones 

Michael E. Jones 

Case 1:20-cv-00655-LY Document 85 Filed 03/29/21 Page 27 of 27