IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC d/b/a BRAZOS 

LICENSING AND DEVELOPMENT,

Plaintiff,

v.

DELL TECHNOLOGIES INC., DELL INC., 

EMC CORPORATION, AND VMWARE, 

INC.,

Defendants.

Case No. 6:20-cv-00486-ADA

JURY TRIAL DEMANDED

DEFENDANTS’ RULE 12(c) MOTION FOR JUDGMENT ON THE BASIS OF

INELIGIBILITY UNDER 35 U.S.C. § 101 OF U.S. PATENT NO. 7,092,360

Case 6:20-cv-00486-ADA Document 172 Filed 03/23/22 Page 1 of 29
i

TABLE OF CONTENTS

Page

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

II. BACKGROUND .................................................................................................................2

A. The ’360 Patent .........................................................................................................2

B. Procedural Background .............................................................................................4

III. LEGAL STANDARD..........................................................................................................5

IV. THE ASSERTED CLAIMS ARE NOT PATENT-ELIGIBLE...........................................6

A. The Court’s Markman Order and WSOU’s Arguments at Claim 

Construction Confirm That the Claims Involve Only Generic and BlackBox Components.......................................................................................................6

B. Alice Step One: The Claims Are Directed to an Abstract Idea ................................8

1. The Claims Are Focused on Monitoring by Comparing Detected and 

Expected States..................................................................................................9

2. Controlling Authority Establishes That the Claims Are Abstract ...................10

3. Nothing in the Claims Can Rescue Them Under Step One .............................12

C. Alice Step Two: The Claims Lack an Inventive Concept ......................................15

V. CONCLUSION..................................................................................................................20

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TABLE OF AUTHORITIES

Page(s)

CASES

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

838 F.3d 1253 (Fed. Cir. 2016)..................................................................................................8

Alice Corporation v. CLS Bank International,

134 S. Ct. 2347 (2014)...............................................................................................2, 6, 15, 17

Am. Axle & Mfg., Inc. v. Neapco Holdings LLC,

967 F.3d 1285 (Fed. Cir. 2020)................................................................................................15

Ariosa Diagnostics, Inc. v. Sequenom, Inc.,

788 F.3d 1371 (Fed. Cir. 2015)................................................................................................15

In re Bilski,

545 F.3d 943 (2008), aff’d sub nom. Bilski v. Kappos, 561 U.S. 593 (2010)............................6

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

778 F. App’x 882 (Fed. Cir. 2019) ..........................................................................................13

BSG Tech LLC v. Buyseasons, Inc.,

899 F.3d 1281 (Fed. Cir. 2018)....................................................................................17, 18, 19

CardioNet, LLC v. InfoBionic, Inc.,

816 F. App’x 471 (Fed. Cir. 2020) ..........................................................................................11

ChargePoint, Inc. v. SemaConnect, Inc.,

920 F.3d 759 (Fed. Cir. 2019)....................................................................................................5

Cisco Sys., Inc. v. Uniloc 2017 LLC,

813 F. App’x 495 (Fed. Cir. 2020) ............................................................................................6

Cleveland Clinic Found. v. True Health Diagnostics LLC,

859 F.3d 1352 (Fed. Cir. 2017)............................................................................................5, 11

Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc.,

880 F.3d 1356 (Fed. Cir. 2018)................................................................................................13

CyberSource Corp. v. Retail Decisions, Inc.,

654 F.3d 1366 (Fed. Cir. 2011)................................................................................................14

Doe v. MySpace, Inc.,

528 F.3d 413 (5th Cir. 2008) .....................................................................................................5

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TABLE OF AUTHORITIES (continued)

Page(s)

iii

Dropbox, Inc. v. Synchronoss Techs., Inc.,

815 F. App’x 529 (Fed. Cir. 2020) ..........................................................................................18

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

830 F.3d 1350 (Fed. Cir. 2016)....................................................................1, 10, 11, 12, 13, 14

Enfish, LLC v. Microsoft Corp.,

822 F.3d 1327 (Fed. Cir. 2016)................................................................................................13

FairWarning IP, LLC v. Iatric Sys., Inc.,

839 F.3d 1089 (Fed. Cir. 2016)..........................................................................................10, 13

Fitbit Inc. v. AliphCom,

No. 16-cv-00118-BLF, 2017 WL 819235 (N.D. Cal. Mar. 2, 2017).......................................11

In re Gale,

856 F. App’x 887 (Fed. Cir. 2021) ..........................................................................1, 10, 12, 13

Health Discovery Corp. v. Intel Corp.,

6:20-cv-666-ADA, 2021 WL 6116891 (W.D. Tex. Dec. 27, 2021)................................5, 6, 20

Interval Licensing LLC v. AOL, Inc.,

896 F.3d 1335 (Fed. Cir. 2018)..........................................................................................14, 15

Koninklijke KPN N.V. v. Gemalto M2M GmbH,

942 F.3d 1143 (Fed. Cir. 2019)................................................................................................13

Kumar v. Ovonic Battery Co.,

351 F.3d 1364 (Fed. Cir. 2003)..................................................................................................6

Neochloris, Inc. v. Emerson Process Mgmt. LLLP,

140 F. Supp. 3d 763 (N.D. Ill. 2015).......................................................................................11

Phillips v. AWH Corp.,

415 F.3d 1303 (Fed. Cir. 2005)..................................................................................................5

RDPA, LLC v. Geopath, Inc.,

543 F. Supp. 3d 4 (S.D.N.Y. 2021) .........................................................................................11

In re Rosenberg,

813 F. App’x 594 (Fed. Cir. 2020) ....................................................................................18, 19

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

898 F.3d 1161 (Fed. Cir. 2018)......................................................................................5, 11, 13

Secured Mail Sols. LLC v. Universal Wilde,

873 F.3d 905 (Fed. Cir. 2017)....................................................................................................6

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TABLE OF AUTHORITIES (continued)

Page(s)

iv

Solutran, Inc. v. Elavon, Inc.,

931 F.3d 1161 (Fed. Cir. 2019)................................................................................................18

Specialized Monitoring Solutions, LLC v. ADT LLC,

367 F. Supp. 3d 575 (E.D. Tex. 2019).....................................................................................11

Synopsys, Inc. v. Mentor Graphics Corp.,

839 F.3d 1138 (Fed. Cir. 2016)................................................................................................15

Two-Way Media Limited v. Comcast Cable Communications,

874 F.3d 1329 (Fed. Cir. 2017)..........................................................................................14, 15

V-Formation, Inc. v. Benetton Grp. SpA,

401 F.3d 1307 (Fed. Cir. 2005)..................................................................................................6

WhitServe LLC v. Dropbox, Inc.,

854 F. App’x 367 (Fed. Cir. 2021) ..........................................................................................18

Yu v. Apple Inc.,

1 F.4th 1040 (Fed. Cir. 2021) ................................................................................................8, 9

Case 6:20-cv-00486-ADA Document 172 Filed 03/23/22 Page 5 of 29
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TABLE OF ABBREVIATIONS

Abbreviation Term

’360 patent U.S. Patent No. 7,092,360

Asserted Claims Claims 1, 2, 21, 22, 23, 26, 28, 29, 41, 43, and 44 of the ’360 patent

Defendants Dell Technologies Inc., Dell Inc., EMC Corporation, and VMware, 

Inc.

First Amended 

Complaint

First Amended Complaint for Patent Infringement (D.I. 35)

Original Complaint Original Claim for Patent Infringement (D.I. 1)

WSOU WSOU Investments, LLC d/b/a Brazos Licensing and 

Development

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TABLE OF EXHIBITS

Exhibit Document

A ’360 patent 

B U.S. Patent No. 6,173,325

C WSOU’s January 6, 2021 Identification of Terms for Claim Construction

D WSOU January 20, 2021 Preliminary Claim Constructions

E U.S. Patent No. 6,028,847

F U.S. Patent No. 6,018,527

G U.S. Patent No. 6,449,255

Case 6:20-cv-00486-ADA Document 172 Filed 03/23/22 Page 7 of 29
Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, Defendants respectfully 

request that judgment on the pleadings be granted in favor of Defendants on the basis that the 

Asserted Claims of the ’360 patent are not patent-eligible under 35 U.S.C. § 101.

I. INTRODUCTION

The Asserted Claims are not patent-eligible under 35 U.S.C. § 101 because the claims are 

directed to nothing more than the abstract idea of comparing a detected state with an expected state 

for monitoring purposes. The Federal Circuit and other courts repeatedly have held ineligible 

claims that were directed to the same abstract concept of monitoring, and that recited the same 

basic functions of collecting, analyzing, and outputting information. See, e.g., In re Gale, 856 F. 

App’x 887, 888–89 (Fed. Cir. 2021) (“monitoring” a “critical test result message management 

system,” by comparing the system’s “calculated usage pattern” with a “pre-defined usage pattern 

requirement” and “reporting the results” of the comparison); Elec. Power Grp., LLC v. Alstom 

S.A., 830 F.3d 1350, 1351–52 (Fed. Cir. 2016) (“systems and methods for performing real-time 

performance monitoring of an electric power grid”). The Asserted Claims require no specific 

technological improvements to perform these basic functions. None of the claims recite specific

requirements for performing the functions any differently from how they would be carried out in 

the human mind or with pencil and paper. The claims merely implement this abstract idea in the 

context of monitoring a software program; namely, as recited in the claims, a “computer generated 

model” of a scheduler.

In addition, the Asserted Claims lack any inventive concept that could amount to 

“significantly more” than this abstract idea because they recite only well-known components 

functioning in their routine manner to implement the abstract idea. Indeed, the Court’s Markman

order and WSOU’s own claim construction arguments confirm that the claims involve nothing 

more than generic or black-box components, such as a “module” or “element” for receiving 

Case 6:20-cv-00486-ADA Document 172 Filed 03/23/22 Page 8 of 29
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information, with no concrete structure or specific algorithm required. WSOU offered no contrary 

allegations in either its Original or First Amended Complaints. The claims therefore are patentineligible and judgment on the pleadings should be granted on this basis. 

II. BACKGROUND

A. The ’360 Patent

The ’360 patent relates to “monitoring [the] operation of a scheduler.” Ex. A (’360 patent), 

1:8–9, 2:28–30, 6:22–25, 6:45–52, 6:64–67. The specification makes clear that a “scheduler” itself

was known in the art. The scheduler is part of a “typical switching element for a communication 

network” and is “responsible for determining the order of queues from which data cells are 

transferred to the output interface for transmission onto the network.” Id. at 1:13–29. The 

specification further acknowledges that “[v]arious methods ha[d] been proposed to test the 

performance of” such a scheduler, “either when implemented as a software model . . . or when 

implemented in hardware,” and even identifies one such prior art method as an example. Id. at 

1:33–55 (citing Ex. B (U.S. Patent No. 6,173,325)). 

The Asserted Claims, which issued years before the Supreme Court’s ruling in Alice 

Corporation v. CLS Bank International, 134 S. Ct. 2347 (2014), recite that the monitoring of a 

scheduler is achieved by “comparing [a] monitored state with an expected state for” a scheduler 

“element,” and then “outputting the result of the comparison.” See, e.g., Ex. A (’360 patent), 16:8–

22. For instance, claim 26 recites:

A method of monitoring operation of a scheduler, comprising supplying said 

scheduler with data, monitoring the state of an element of said scheduler, 

comparing the monitored state with an expected state for said element, and 

outputting the result of the comparison;

wherein said scheduler comprises a computer generated model; and

wherein said scheduler is controlling the departure of data from a plurality of 

queues, and said element comprises:

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an element for recording whether a queue is empty or occupied, an element for 

recording the quantity of data contained in a queue, an element identifying a queue 

from which data is to be output, and an element identifying a group of queues from 

which data is to be output.

Id.1

As shown above, claim 26 does not specify precisely how to perform the claimed

“monitoring,” “comparing,” and “outputting” functions. The claim does not even specify who or 

what performs these functions. Nor does the claim recite requirements for performing the 

functions any differently from how they would be carried out in the human mind or with a pencil 

and paper. In fact, claim 26 does not recite any particular technology or components necessary to 

carry out those functions. Nor does the claim require any improvements or modifications to the 

monitored scheduler itself. As mentioned above, the specification acknowledges that a scheduler 

was known to be “responsible for determining the order of queues from which data” is output 

“onto the network.” Id. at 1:26–29. In addition, as further discussed below, the specification cites 

several prior art references that describe this well-known scheduler technology, including generic 

scheduler “elements” that identify information about data queues, e.g., whether they are empty or 

occupied, the quantity of data in them, and the order of queues from which data is to be output. 

See infra § IV(C). Even WSOU conceded at claim construction that these “elements” involve no 

more than basic “data storage.” See infra § IV(A). 

Claim 26 also recites that the scheduler “comprises a computer generated model.” But the 

specification makes clear that schedulers had already been “implemented” and “test[ed]” “as a 

software model.” Ex. A (’360 patent), 1:33–36. Neither the claim nor the specification purports 

to have invented a scheduler as a “computer generated model” in software. The specification 

1 For the remainder of this brief, all emphasis in quotations is added except where noted.

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simply states that the “scheduler may be implemented and tested as” a basic “computer model” 

using known code and “Verilog programming language.” Id. at 12:53–56, 4:7–9.

The remaining Asserted Claims recite no meaningfully different limitations that would 

materially alter the eligibility analysis. WSOU asserts dependent claims 28, 29, 41, 43, and 44, 

which ultimately depend from independent claim 26, and merely recite basic limitations directed 

to the same process of monitoring scheduler operation. For instance, claims 28 and 29 recite 

“monitoring a parameter relating to the operation of said scheduler” and “determining an expected 

value” for the parameter. Id. at 16:30–39. Claim 41 merely adds “monitoring” the parameter at 

“successive times.” Id. at 18:3–6.

WSOU also asserts claims 1, 2, and 21–23, but these claims just recite a “monitor” 

performing the monitoring functions discussed above. For example, independent claim 1 involves 

the same comparison of monitored (“detected”) and expected (“predetermined”) states. Id. at 

13:9–26. Claim 21 involves performing the comparison at “different times.” Id. at 15:32–41. 

Even these claims, however, do not require the “monitor” to operate in any particular way to carry 

out the recited monitoring functions, let alone any differently from how they would be performed 

in the human mind.

B. Procedural Background

WSOU filed its First Amended Complaint on October 19, 2020, asserting infringement of 

at least claim 26 of the ’360 patent. D.I. 35 ¶ 27. WSOU made no allegations concerning the 

eligibility of the Asserted Claims in either its Original (D.I. 1) or First Amended Complaints, 

including any allegations about non-conventionality of any of the recited limitations. 

WSOU identified no claim term of the ’360 patent for construction. Ex. C (1/6/21 WSOU 

Identification of Terms for Construction) at 4. Although Defendants identified several ’360 patent 

claim terms for construction, WSOU contended that plain and ordinary meaning applied to each 

Case 6:20-cv-00486-ADA Document 172 Filed 03/23/22 Page 11 of 29
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of them (even those recited in “means plus function” phrasing). Ex. D (1/20/21 WSOU 

Preliminary Constructions) at 4–6. In other words, according to WSOU, the claims of the ’360 

patent involved only terms that were well-known to persons of ordinary skill in the art. See Phillips 

v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005). The Court held a claim construction hearing

in May 2021, and issued its claim construction order on May 27, 2021. D.I. 102. As discussed 

further below (infra § IV(A)), the Court’s claim construction order and WSOU’s own claim 

construction arguments confirm that the Asserted Claims involve only generic and black-box 

components functioning in their expected manner.

III. LEGAL STANDARD

Judgment on the Pleadings. As with dismissal under Rule 12(b)(6) of the Federal Rules 

of Civil Procedure, judgment on the pleadings should be granted under Rule 12(c) if a complaint 

fails to “plead ‘enough facts to state a claim to relief that is plausible on its face.’” Doe v. MySpace, 

Inc., 528 F.3d 413, 418 (5th Cir. 2008) (citation omitted). Judgment on the pleadings should be 

granted where “‘there are no factual allegations that, taken as true, prevent resolving the [patent] 

eligibility question as a matter of law.’” ChargePoint, Inc. v. SemaConnect, Inc., 920 F.3d 759, 

765 (Fed. Cir. 2019) (citation omitted). Indeed, this Court has granted dismissal on the basis of 

ineligibility where the plaintiff “failed to plead allegations supporting the eligibility of the asserted 

claims.” Health Discovery Corp. v. Intel Corp., 6:20-cv-666-ADA, 2021 WL 6116891, at *12 

(W.D. Tex. Dec. 27, 2021).

The Federal Circuit has recognized that patent eligibility “may be, and frequently has been, 

resolved on a Rule 12(b)(6) or (c) motion,” even “before claim construction or significant 

discovery has commenced” and “based on intrinsic evidence from the specification without need 

for ‘extraneous fact finding outside the record.’” See SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 

1161, 1166 (Fed. Cir. 2018); Cleveland Clinic Found. v. True Health Diagnostics LLC, 859 F.3d 

Case 6:20-cv-00486-ADA Document 172 Filed 03/23/22 Page 12 of 29
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1352, 1360 (Fed. Cir. 2017); Secured Mail Sols. LLC v. Universal Wilde, 873 F.3d 905, 912 (Fed. 

Cir. 2017). This Court has recognized that although “claim construction disputes may bar a patenteligibility determination at the Rule 12(b)(6) stage,” there is no such “impediment” where claim 

construction has already occurred. Health Discovery, 2021 WL 6116891, at *4.

In addition, the Federal Circuit has “established that ‘prior art cited in a patent or cited in 

the prosecution history of the patent constitutes intrinsic evidence.’” V-Formation, Inc. v. Benetton 

Grp. SpA, 401 F.3d 1307, 1311 (Fed. Cir. 2005) (quoting Kumar v. Ovonic Battery Co., 351 F.3d 

1364, 1368 (Fed. Cir. 2003)). The court likewise has made clear that “conclusory statements 

regarding eligibility” need not be accepted as true and “d[o] not preclude dismissal.” See, e.g., 

Cisco Sys., Inc. v. Uniloc 2017 LLC, 813 F. App’x 495, 498–99 (Fed. Cir. 2020). Finally, the 

Federal Circuit has held that “a court need not accept as true allegations that contradict matters 

properly subject to judicial notice or by exhibit, such as the claims and the patent specification.” 

Secured Mail Sols., 873 F.3d at 913 (citation omitted).

Patent Eligibility. The legal question of patent eligibility involves a two-step “threshold 

inquiry.” In re Bilski, 545 F.3d 943, 950 (2008), aff’d sub nom. Bilski v. Kappos, 561 U.S. 593 

(2010). Step One asks whether the claims are directed to an ineligible “concept[],” such as an 

“abstract idea.” Alice, 134 S. Ct. at 2355. If so, Step Two asks whether the claims involve a

specific “inventive concept” that “amounts to significantly more than a patent upon the [abstract 

idea] itself.” Id. 

IV. THE ASSERTED CLAIMS ARE NOT PATENT-ELIGIBLE

A. The Court’s Markman Order and WSOU’s Arguments at Claim Construction 

Confirm That the Claims Involve Only Generic and Black-Box Components

As detailed below (infra §§ IV(B)–(C)), the Asserted Claims are not patent-eligible 

because they are directed to an abstract idea and lack any inventive concept. WSOU’s own claim 

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construction arguments only further confirm this conclusion. As detailed below, WSOU rejected 

at claim construction any notion that the claims require anything other than well-known and 

conventional technology functioning in its routine manner. WSOU repeatedly contended that the 

claims involve only generic or black-box structures used to carry out basic data processing 

functions. The Court agreed. Thus, according to this Court’s Markman order and WSOU’s own 

arguments, the claims involve only generic components that are used as intended to implement the 

abstract idea, and thus lack any inventive concept that could save them from ineligibility.

For instance, claim 1 recites a “detection means for detecting a state of an element” and 

“means for requesting said scheduler model to pass the status of said element to said monitor.” 

WSOU argued that if 35 U.S.C. § 112, ¶ 6 applies to these terms, the corresponding structure is 

“module 110, 112, 114, 115, 118, 120, 122, 124, 126, 128, or 130.” D.I. 81 at 5; D.I. 91 at 1–5. 

WSOU disputed Defendants’ argument that the terms be further limited to the specific algorithm 

of “using a programming language interface (PLI) as described in ’360 patent, 12:11–41.” D.I. 81 

at 5; D.I. 91 at 1–5; D.I. 85 at 5. The Court agreed with WSOU, and held that the corresponding 

structure is merely the “module” mentioned above. D.I. 102 (Claim Construction Order) at 19–

20. According to the specification, however, a module is no more than a generic component that 

merely receives information about the state of a scheduler. See, e.g., Ex. A (’360 patent), 6:62–

7:28 (describing “a module . . . for receiving” various information).

In addition, claim 1 recites “comparing means for comparing the detected state with a 

predetermined state and for outputting the result of the comparison,” and claim 21 recites a similar 

term. WSOU disputed Defendants’ argument that the terms are indefinite. D.I. 85 at 5–6. WSOU 

argued that, instead, if Section 112, ¶ 6 applies, the corresponding structure for these terms is “rule 

checker 132.” Id. The Court agreed with WSOU that the terms are not indefinite, and held that 

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their corresponding structure is “rule checker 132 with set of rules 134.” D.I. 102 at 21; see, e.g., 

D.I. 85 at 5–6. The specification, however, makes clear that the rule checker is a generic 

component that “receive[s] information” about the “status of one or more elements of the 

scheduler,” “compares this information against” a set of abstract rules, and “output[s] the result of 

the comparison.” Ex. A (’360 patent), 7:28–39.

Furthermore, several Asserted Claims, such as claims 1 and 26 (and their dependent 

claims), recite an “element” for “recording” or “identifying” information, such as “whether a queue 

is empty or occupied” and the amount of data in a queue. Although the Court did not construe 

these terms based on the Court’s term limits, WSOU agreed with Defendants that if Section 112, 

¶ 6 applies to the terms, the corresponding structures are merely generic or black-box structures, 

such as a “queue status register,” “counter,” “pointer,” and “priority selector.” D.I. 85 at 6–8. The 

specification confirms that each of these generic elements merely performs basic functions such 

as identifying or recording data. See, e.g., Ex. A (’360 patent), 7:16–21, 8:14–37. WSOU agreed, 

and added that these generic elements are just “data storage.” D.I. 85 at 6–8.

Thus, the Court’s Markman order and WSOU’s own claim construction arguments confirm 

that the claims involve only generic or black-box components performing routine functions of data 

processing, require no specific technological improvements, and lack any inventive concept. 

Accordingly, as detailed below, what is left of the claims is merely an ineligible abstract idea.

B. Alice Step One: The Claims Are Directed to an Abstract Idea

The Asserted Claims are directed to the patent-ineligible abstract idea of comparing a 

detected state with an expected state for monitoring purposes. 

The Step One “directed to” inquiry “ask[s] what the patent asserts to be the focus of the 

claimed advance over the prior art,” and whether that focus is on patent-ineligible subject matter, 

such as an abstract idea. Yu v. Apple Inc., 1 F.4th 1040, 1043 (Fed. Cir. 2021); Affinity Labs of 

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Texas, LLC v. DirecTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (holding that Step One “look[s] 

at the ‘focus of the claimed advance over the prior art’ to determine if the claim’s ‘character as a 

whole’ is directed to excluded subject matter”). The Federal Circuit has explained that this

determination “must focus on the language of the [a]sserted [c]laims themselves, considered in 

light of the specification.” Yu, 1 F.4th at 1043 (citation omitted).

1. The Claims Are Focused on Monitoring by Comparing Detected and 

Expected States

The language of the Asserted Claims and the intrinsic record confirm that the “focus of the 

claimed advance” is no more than the abstract idea of monitoring by comparing an expected state 

with a detected state. See, e.g., Ex. A (’360 patent), 16:8–12, Title (“Monitor, System and Method 

for Monitoring Performance of a Scheduler”), Abstract (“monitoring the operation of a scheduler” 

and “whether the scheduler is operating as intended”), 2:28–3:56 (Summary of Invention) 

(repeatedly describing the “present invention” as involving “monitoring the operation of a 

scheduler”). This basic concept has long been applied in many contexts. For instance, doctors

compare a patient’s temperature (“monitored state”) to the normal body temperature of 98.6°F a

e.g., id. at 16:8. The specification concedes that “[v]arious methods have been proposed to test 

the performance of a packet scheduler, either when implemented as a software model . . . or when 

implemented in hardware.” Id. at 1:33–36. In fact, the specification describes an example of a 

prior art method for monitoring the operation of a scheduler. See, e.g., id. at 1:37–55; Ex. B (U.S. 

Patent No. 6,173,325), 3:35–38 (“To achieve the foregoing objects, and in accordance with the 

invention as embodied and broadly described herein a method, computer program product, and 

system for assessing the performance of a packet scheduler is provided.”), 3:39–43 (“The present 

invention is written to take advantage of existing network performance monitoring tools that are 

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extensible, such as Netmon. The invention adds to Netmon the ability to get detailed statistics on 

the specific operation of a Packet Scheduler.”).

2. Controlling Authority Establishes That the Claims Are Abstract

The Federal Circuit has held ineligible claims that focused on precisely the same abstract 

idea of comparing an expected state with a detected state for monitoring purposes. For instance, 

in In re Gale, 856 F. App’x 887, 888–89 (Fed. Cir. 2021), the court held ineligible claims to 

“monitoring” a “critical test result message management system” by comparing the system’s 

“calculated usage pattern” (a “monitored state”) with a “pre-defined usage pattern requirement”

(an “expected state”). The claims recited “(1) receiv[ing] critical test result messages with 

associated timing-related metadata, (2) read[ing] the timing-related metadata, (3) calculat[ing] a 

usage pattern from the metadata, and (4) determin[ing] whether the calculated usage pattern [was]

compliant by comparing it to a predetermined usage pattern requirement.” Id. at 888. The court

held that the claims were “directed to the abstract idea of (1) collecting information (here, receiving 

messages and reading their metadata), (2) analyzing the information (here, calculating a usage 

pattern and determining its compliance with a predetermined usage pattern), and (3) reporting the 

results.” Id. at 889.

The Federal Circuit and other courts have repeatedly held ineligible claims focused on this

abstract idea of monitoring by comparing or analyzing information. See, e.g., Elec. Power, 830 

F.3d at 1351–52; FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir. 

2016) (claims to “collecting and analyzing information to detect misuse and notifying a user when 

misuse is detected”).

2

 Indeed, the Federal Circuit in numerous instances has held ineligible claims 

2 See also RDPA, LLC v. Geopath, Inc., 543 F. Supp. 3d 4, 12–13 (S.D.N.Y. 2021) (claims to the 

use of “monitoring devices” to “determin[e] the demographics of and how often individuals . . . 

pass predetermined geographic locations” “by comparing . . . geo data representing the movement” 

of the individuals “with stored data” about the “predetermined geographic locations”); Fitbit Inc. 

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that involved the collection, analysis, and output of data—not only for monitoring but also for 

other purposes. See, e.g., SAP, 898 F.3d at 1167 (claims to “selecting certain information, 

analyzing it using mathematical techniques, and reporting or displaying the results of the 

analysis”); CardioNet, LLC v. InfoBionic, Inc., 816 F. App’x 471, 475 (Fed. Cir. 2020) (claims to 

“collecting, analyzing, and displaying cardiac data”); Cleveland Clinic Found., 859 F.3d at 1358 

(stating that comparison of myeloperoxidase levels in the blood with a control value was simply a 

“bare mental process”).

In Electric Power, for example, the Federal Circuit held ineligible claims to “systems and 

methods for performing real-time performance monitoring of an electric power grid” by

“receiving” data related to the power grid, “detecting and analyzing events in real-time,” and 

“displaying” the analyses and results of those analyses. Elec. Power, 830 F.3d at 1351–52. The 

Federal Circuit held that the “focus” of the claims was the abstract idea of “collecting information, 

analyzing it, and displaying certain results of the collection and analysis.” Id. at 1353. The court

explained that “collecting information, including when limited to particular content,” is “within 

the realm of abstract ideas.” Id. The court also held that “analyzing information by steps people 

go through in their minds, or by mathematical algorithms,” also is within the “abstract-idea 

v. AliphCom, No. 16-cv-00118-BLF, 2017 WL 819235, at *14 (N.D. Cal. Mar. 2, 2017) (claims 

to “defining a rule . . . , applying that rule to data (comparing the ‘predefined threshold’ to an 

‘activity metric’ calculated from ‘activity data’), and triggering a notification when that rule is 

satisfied . . . [e.g.,] when the ‘activity metric’ reaches/exceeds the ‘predefined threshold’”); 

Specialized Monitoring Solutions, LLC v. ADT LLC, 367 F. Supp. 3d 575, 595 (E.D. Tex. 2019) 

(holding claims that recited the “compari[son of] the magnitude of [a] signal event with a threshold 

value” as “reflect[ing] the routine practice of monitoring a measured condition to determine if it 

has exceeded a previously set threshold value”); Neochloris, Inc. v. Emerson Process Mgmt. LLLP, 

140 F. Supp. 3d 763, 767, 774 (N.D. Ill. 2015) (claims to “a method for (1) collecting data at a 

water treatment plant; (2) sending the data over an internet connection to a computer; (3) 

monitoring and analyzing the data with an ordinary computer and software; and (4) alerting the 

facility of any abnormalities”).

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category.” Id. at 1353–54. Finally, the court held that “merely presenting the results of” such 

“abstract processes” “is abstract as an ancillary part of such collection and analysis.” Id. at 1354.

Here, the Asserted Claims are directed to the same abstract idea of monitoring and recite 

the same functions as the ineligible claims in Gale, Electric Power, and similar cases. Like the 

ineligible Gale claims, which recited monitoring a system by comparing a calculated “usage 

pattern” of a system (a “monitored state”) with a “predetermined usage pattern” (an “expected 

state”), the Asserted Claims recite monitoring a scheduler by comparing a “monitored state” of 

scheduler elements with an “expected state.” And just as the Gale claims recited “reporting the 

results” of the comparison without specifying what to do with those results, the Asserted Claims 

recite “outputting the results of the comparison” and nothing more. Merely outputting the results 

of a comparison is no less abstract than the comparison itself. Gale, 856 F. App’x at 889. 

In addition, the Asserted Claims involve the same core functions of monitoring that the 

ineligible claims in Electric Power employed. Just like the ineligible Electric Power claims, which 

recited monitoring a power grid by “collecting information,” “analyzing information,” and 

“presenting the results” of that analysis, the Asserted Claims recite “collecting information” about 

the operation of a scheduler (the “monitored state” of scheduler elements), “analyzing

information” (at most, “comparing the monitored state with an expected state” for the scheduler 

elements), and “presenting the results” of that analysis(“outputting the results of the comparison”). 

830 F.3d at 1353–54; Ex. A (’360 patent), 16:8–12. As the Federal Circuit explained in Electric 

Power, all of these steps are wholly abstract. 830 F.3d at 1353–54.

3. Nothing in the Claims Can Rescue Them Under Step One

The Asserted Claims recite no subject matter that could save them from ineligibility at Step 

One. For instance, the Asserted Claims require no specific technological improvements to perform 

the abstract comparison of detected and expected states to monitor the operation of a computer 

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generated model of a scheduler. Instead, the claims employ only preexisting technology to monitor 

preexisting components. But the Federal Circuit has made clear that, for a claim to be patenteligible, its “focus” must be on “specific,” “non-abstract,” and “concrete” “improvements to 

existing technological processes” and “the functioning of [a] computer itself,” rather than merely 

reciting “a process that qualifies as an abstract idea for which computers are invoked merely as a 

tool.” Bridge & Post, Inc. v. Verizon Commc’ns, Inc., 778 F. App’x 882, 890 (Fed. Cir. 2019); 

Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356, 1361–62 (Fed. Cir. 2018); 

Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335–36 (Fed. Cir. 2016); Koninklijke KPN N.V. 

v. Gemalto M2M GmbH, 942 F.3d 1143, 1150 (Fed. Cir. 2019). For example, in Electric Power, 

the court reasoned that the claims failed Step One because they recited no “particular assertedly 

inventive technology for performing” the claimed “functions” of collecting, analyzing, and 

outputting information. 830 F.3d at 1354.

Here, like the ineligible Electric Power claims—as well as the ineligible claims in Gale, 

FairWarning, SAP, and similar cases—the Asserted Claims fail to recite “any particular asserted 

inventive technology for performing th[e] functions” of collecting, analyzing, and outputting

information to monitor scheduler operation. Elec. Power, 830 F.3d at 1354; Gale, 856 F. App’x 

at 890; FairWarning, 839 F.3d at 1094–95; SAP, 898 F.3d at 1168. Claim 26 and its dependent 

claims recite no components whatsoever to perform the steps of “monitoring,” “comparing,” and 

“outputting,” or explain precisely who or what must perform those basic functions. Although other 

claims, such as claim 1, recite a “monitor,” the specification admits that the monitor “may be 

implemented on a computer using any suitable programming language, for example, Specman, 

Specman Elite, Verilog or C.” Ex. A (’360 patent), 7:49–51; id. at 12:14–19 (“The scheduler 

monitor may be implemented using any suitable programming language.”). Likewise, as discussed 

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above, the Court’s Markman order and WSOU’s claim construction arguments only further 

establish that the claims require no more than generic or black-box components for performing the 

basic functions of receiving, comparing, or outputting information. Supra § IV(A). Indeed, the 

claims recite no specific requirements for carrying out these basic functions any differently from 

how a person would do so in their mind or with pencil and paper. The Federal Circuit has made 

clear that such “a method that can be performed by human thought alone,” or “by a human using 

a pen and paper,” “is merely an abstract idea and is not patent-eligible under § 101.” CyberSource 

Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372–73 (Fed. Cir. 2011); Elec. Power, 830 F.3d 

at 1354.

Furthermore, the Asserted Claims invoke purely functional claim language to implement 

the abstract idea. The Federal Circuit has held ineligible similar claims that “fail[] to recite a 

practical way of applying an underlying idea . . . [and] instead [a]re drafted in such a result-oriented 

way that they amount[] to encompassing ‘the principle in the abstract’ no matter how 

implemented.” Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1343 (Fed. Cir. 2018). The 

court has noted that this “essentially result-focused, functional character of claim language has 

been a frequent feature of claims held ineligible under § 101.” Elec. Power, 830 F.3d at 1356. For 

example, in Two-Way Media Limited v. Comcast Cable Communications, the court held ineligible 

claims that “require[d] the functional results of ‘converting,’ ‘routing,’ ‘controlling,’ ‘monitoring,’ 

and ‘accumulating records,’ but d[id] not sufficiently describe how to achieve these results in a 

non-abstract way.” 874 F.3d 1329, 1337 (Fed. Cir. 2017). 

Here, the Asserted Claims similarly recite only purely functional terms like “monitoring,” 

“comparing,” and “outputting” to carry out the abstract idea of monitoring. As discussed above, 

however, the claims lack any limitation specifying how to perform those functions and “achieve 

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th[o]se results in a non-abstract way.” Id. At best, the claims end with “outputting” the results of 

the comparison, without specifying where the results are sent or what to do with the information. 

Thus, the claims are “drafted in such a result-oriented way that they amount[] to encompassing” 

the abstract idea of “monitoring” by “comparing” expected and monitored states, “no matter how 

implemented.” Interval Licensing, 896 F.3d at 1343.

Accordingly, the Asserted Claims are directed to nothing more than the ineligible abstract 

idea of comparing a detected state and an expected state for monitoring purposes.

C. Alice Step Two: The Claims Lack an Inventive Concept

If claims are directed to an abstract idea, they must add an “inventive concept” by reciting 

elements that amount to “significantly more than a patent upon the [abstract idea] itself.” Alice, 

134 S. Ct. at 2355. “[C]onventional, routine and well understood applications in the art” are 

insufficient. Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1378 (Fed. Cir. 2015). 

Like Step One, Step Two of the eligibility inquiry “must focus on the language of the Asserted 

Claims themselves.” Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1149 (Fed. Cir. 

2016). Thus, any features not recited in the claims “are irrelevant” to either step of the “Mayo/Alice

analysis.” Am. Axle & Mfg., Inc. v. Neapco Holdings LLC, 967 F.3d 1285, 1293 (Fed. Cir. 2020).

Here, the Asserted Claims lack any inventive concept because they recite only well-known 

and conventional technology functioning in its routine manner to implement the abstract idea in 

the context of monitoring a software program; here, the “computer generated model” of a 

scheduler. See Ariosa, 788 F.3d at 1378. As discussed above, the claims require no specific 

technological improvements to perform the claimed functions of “monitoring,” “comparing,” and 

“outputting.” Supra § IV(B)(3). For instance, the specification concedes that the “monitor” recited 

in certain claims, such as claim 1, can be practically any existing monitor, stating that it “may be 

implemented on a computer using any suitable programming language, for example, Specman, 

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Specman Elite, Verilog or C.” Ex. A (’360 patent), 7:49–52; see also id. at 12:14–19 (“The 

scheduler monitor may be implemented using any suitable programming language.”). In addition, 

this Court’s Markman order and WSOU’s claim construction arguments make clear that the claims 

involve only generic, black-box structures like a “module,” “rule checker,” and “data storage” to 

carry out the basic functions of receiving, comparing, or outputting information. Supra § IV(A). 

Claim 26 and its dependent claims do not even require any specific components at all, nor do they 

specify who or what should even perform the claimed monitoring.

Furthermore, the monitored scheduler itself, which is no more than a basic “computer 

model” “simulated in software using” known code and programming language, is not improved—

or even modified—in any manner. Ex. A (’360 patent), 4:5–9. Indeed, the claims at best end with 

“outputting the results of the comparison” between the “expected” and “monitored” states, and say 

nothing about what to do with those results—with respect to the scheduler or anything else. The 

intrinsic record, including the specification and several prior art references cited on the face of the 

’360 patent, confirms that the recited scheduler itself and its functions are nothing new. Id. at 

1:13–55. For instance, the specification even concedes that schedulers previously had been 

“implemented” and “test[ed]” “as a software model.” Id. at 1:33–36; see also id. at 1:56–2:8. In 

addition, U.S. Patent No. 6,028,847, which is cited on the face of the ’360 patent, confirms that a 

scheduler was known to “identif[y]” and “compute” “the desired time of departure of each data 

packet.” Ex. E (U.S. Patent No. 6,028,847), 2:11–14, 5:49–65. Likewise, U.S. Patent No. 

6,018,527 is cited on the face of the ’360 patent and describes a scheduler that is responsible for 

“schedul[ing] a queue for service” and selecting the queues from which data will be output. Ex. F 

(U.S. Patent No. 6,018,527), 3:13–19. Yet another prior art reference cited on the face of the ’360 

patent is U.S. Patent No. 6,449,255, which discloses a scheduler that itself “transmits packets . . . 

Case 6:20-cv-00486-ADA Document 172 Filed 03/23/22 Page 23 of 29
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from the queue structure . . . back into the network.” Ex. G (U.S. Patent No. 6,449,255) 7:9–15; 

id. at 7:55–59 (“[D]uring normal operation, the traffic monitor 26 observes packets 14 as they are 

transmitted from the output scheduler 24, and updates the counters 46,48 such that they indicate 

the observed network traffic leaving the data communications device 10.”); id. at 6:21–39 

(disclosing a scheduler that tracks and “adjusts sizes of . . . queues”).

The language of the Asserted Claims itself confirms that, whether their respective elements 

are considered individually or as an ordered combination, none of the claims recite an inventive 

concept. Alice, 134 S. Ct. at 2355. As explained above, independent claim 26 recites no 

components at all—let alone specifically improved ones—to perform the abstract idea. WSOU 

also asserts claims 28, 29, 41, 43, and 44, which ultimately depend from claim 26 and likewise 

recite no inventive concept.

Claims 28 and 29 are directed to the same process of monitoring scheduler operation, and 

recite no specific technological improvements to achieve that goal. Instead, they merely recite 

“monitoring a parameter relating to the operation of said scheduler” and “determining an expected 

value” for the parameter, which the specification treats as materially the same as a preexisting

scheduler “element.” Ex. A (’360 patent), 6:62–7:3, 16:30–39. This is precisely the same abstract 

idea that is insufficient for an inventive concept. BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 

1281, 1290 (Fed. Cir. 2018) (“It has been clear since Alice that a claimed invention’s use of the 

ineligible concept to which it is directed cannot supply the inventive concept that renders the 

invention ‘significantly more’ than that ineligible concept.”).

Claim 41 simply adds “monitoring” a parameter relating to scheduler operation at 

“successive times,” but recites no specific technological improvements to do so in that manner. 

Ex. A (’360 patent), 18:3–6. Again, this claim is directed to the same ineligible abstract idea that 

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is entirely inadequate for an inventive concept. See BSG, 899 F.3d at 1290.

Claim 43 recites that the “step of monitoring the state of an element” of a scheduler 

involves “pass[ing] the state of said element to said monitor,” even though no “monitor” is 

previously recited in claim 43 or independent claim 26. Ex. A (’360 patent), 18:12–15. The 

specification concedes that a preexisting “program language interface (PLI)” can be used for this 

known purpose. Id. at 12:14–26. Transmitting such information amounts to no more than the 

basic “data-related function” of sending data, which is entirely insufficient for an inventive 

concept. In re Rosenberg, 813 F. App’x 594, 598 (Fed. Cir. 2020) (holding that “data-related 

functions,” such as “‘collecting,’ ‘electronically transmitting,’ ‘checking,’ and ‘electronically 

reporting the data’” “fail[ed] to provide any transformative inventive concept.”); WhitServe LLC 

v. Dropbox, Inc., 854 F. App’x 367, 372 (Fed. Cir. 2021) (“not[ing] that ‘sending and receiving 

information’” has been held inadequate for an inventive concept); Dropbox, Inc. v. Synchronoss 

Techs., Inc., 815 F. App’x 529, 537 (Fed. Cir. 2020) (holding that “‘formatting’ data, ‘tagging’ 

data, ‘transmitting’ data, and ‘retrieving’ data are generalized steps to be performed on a computer” 

that do not “yield an inventive concept”).

Claim 44 recites that the “computer generated model” of the monitored scheduler 

“comprises a file containing a functional description of” a scheduler “element.” Again, though, 

merely reciting a data file that describes a scheduler element involves nothing more than the basic 

function and purpose of such a data file. See, e.g., Rosenberg, 813 F. App’x at 598; Dropbox, 815 

F. App’x at 537; Solutran, Inc. v. Elavon, Inc., 931 F.3d 1161, 1164 (Fed. Cir. 2019) (holding 

ineligible claims involving “data file[s]” that contained certain information).

Furthermore, WSOU asserts claims 1, 2, and 21–23, which recite a “monitor” that performs 

the same monitoring functions. But, as explained above, the specification concedes that the 

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“monitor may be implemented on a computer using any suitable programming language, for 

example, Specman, Specman Elite, Verilog or C.” Ex. A (’360 patent), 7:49–51, 12:14–19. 

Claim 1 is directed to the same abstract idea of monitoring as claim 26, and involves the 

same comparison of monitored (“detected”) and expected (“predetermined”) states. Id. at 13:9–

26; BSG, 899 F.3d at 1290. Claim 1 also recites a “detection means for detecting a state of an 

element of said scheduler” and “comparing means for comparing the detected state with a 

predetermined state for said element and for outputting the result of the comparison” to perform 

the same functions at issue in claim 26. Under this Court’s Markman order and according to 

WSOU’s own claim construction arguments, however, these means-plus-function terms involve 

only generic, black-box structures. Supra § IV(A). And, in any event, these functions are basic 

“data-related functions” that fail to confer any inventive concept. Rosenberg, 813 F. App’x at 598.

Claim 2 depends from claim 1 and adds “pointers” used to identify a “queue from which 

data is to be output.” Ex. A (’360 patent), 13:27–32. The ’360 patent does not purport to have 

invented “pointers,” however, and the patent even cites on its face prior art references describing 

the use of pointers for this same basic purpose. See, e.g., Ex. E (U.S. Patent No. 6,028,847), 5:30–

65 (detailing the use of “pointers,” including “data pointers” that “represent[] data indicative of 

the next desired output data packet departure time”). And, again, these are basic “data-related 

functions” that are insufficient for an inventive concept. Rosenberg, 813 F. App’x at 598.

Claim 21 recites performing the same comparison of “detected” and “expected states” at 

“different times,” but requires no specifically improved technology to do so. Ex. A (’360 patent), 

15:32–41. Yet again, this claim is directed to the same ineligible abstract idea that is entirely 

inadequate for an inventive concept. See BSG, 899 F.3d at 1290.

Finally, claims 22 and 23 ultimately depend from claim 21, and thus are directed to the 

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same ineligible abstract idea. See id. Claim 22 recites that the monitored scheduler performs its 

typical function of selecting “queues for cell departure from a plurality of different groups of 

queues.” Claim 23 involves monitoring that basic scheduler function (in claim 22) over a 

“predetermined period of time” with “said detector,” even though no “detector” is previously 

recited in the claim, the other claims from which it depends, or anywhere else in the patent. Ex. 

A (’360 patent), 15:42–53. These claims therefore merely describe monitoring known scheduler 

functions and require no specific technological improvements to achieve that goal.

Thus, the claims employ only well-known technology functioning in its routine manner to 

implement the abstract idea of monitoring the operation of a scheduler. WSOU has offered no 

contrary allegations in its Original or First Amended Complaints. In fact, WSOU provided no 

allegations or facts concerning patent eligibility at all in either complaint. See Health Discovery, 

2021 WL 6116891, at *12 (granting dismissal on the basis of ineligibility where the “complaint 

fail[ed] to allege an inventive concept”). Accordingly, because the claims are directed to no more 

than an abstract idea without any inventive concept, the claims are not patent-eligible and judgment 

on the pleadings should be granted on that basis.

V. CONCLUSION

For the foregoing reasons, Defendants respectfully ask the Court to hold that the Asserted 

Claims are not patent-eligible under 35 U.S.C. § 101, and therefore grant judgment on the 

pleadings in Defendants’ favor and dismiss the First Amended Complaint with prejudice.

Case 6:20-cv-00486-ADA Document 172 Filed 03/23/22 Page 27 of 29
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Dated: March 23, 2022 By: /s/ Barry K. Shelton

Barry K. Shelton

Texas State Bar No. 24055029

bshelton@winston.com

WINSTON & STRAWN LLP

2121 North Pearl Street, Suite 900

Dallas, TX 75201

Telephone: 214.453.6407

Facsimile: 214.453.6400

Benjamin Hershkowitz

bhershkowitz@gibsondunn.com

Brian A. Rosenthal

brosenthal@gibsondunn.com 

Allen Kathir

akathir@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166-0193 

Telephone: 212.351.4000

Facsimile: 212.351.4035 

Y. Ernest Hsin

ehsin@gibsondunn.com

Jaysen S. Chung

jschung@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

555 Mission Street, Suite 3000

San Francisco, CA 94105-0921

Telephone: 415.393.8200

Facsimile: 415.393.8306

Ryan K. Iwahashi

riwahashi@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

1881 Page Mill Road

Palo Alto, CA 94304-1211

Telephone: 650.849.5300

Facsimile: 650.849.5333

Attorneys for Defendants

Case 6:20-cv-00486-ADA Document 172 Filed 03/23/22 Page 28 of 29
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on March 23, 2022, I caused the preceding document to be 

served on all counsel through the Court’s ECF system.

/s/ Barry K. Shelton

Barry K. Shelton

Case 6:20-cv-00486-ADA Document 172 Filed 03/23/22 Page 29 of 29