UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

SYMBOLOGY INNOVATIONS, 

LLC,

Plaintiff,

v.

KEURIG DR. PEPPER, INC. 

Defendant.

Case No. 2:23-cv-249

Jury Trial Demanded 

BRIEF IN OPPOSITION TO RULE 12(b)(6) MOTION TO DISMISS

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TABLE OF CONTENTS

I. KDP Has Not Met Its Burden............................................................................................................ 1

A. Claim 1 of the ’107 Patent Is Not Representative ...................................................................... 1

B. There Is a Genuine Issue of Material Fact.................................................................................. 5

II. The Asserted Claims are Patent Eligible Under 35 U.S.C. § 101.................................................. 6

A. KDP’s Eligibility “Analysis” is Defective.............................................................................. 10

1. Alice Step One – The Claims are Not Directed to an Abstract Idea...................................... 10

2. Alice Step Two – The Asserted Claims Include an Inventive Concept ................................. 13

B. Claim Construction................................................................................................................. 15

III. The Complaint Is Sufficiently Pled .............................................................................................. 19

IV. Conclusion ...................................................................................................................................... 21

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TABLE OF AUTHORITIES

Cases

Actus, LLC v. Bank of Am. Corp., No. 2-09-cv-102-TJW, 2010 WL 547183, at *2 (E.D. Tex. Feb. 10, 

2010) ..................................................................................................................................................... 21

AlexSam, Inc. v. Cigna Corp., 2020 WL 7233403 at *4-5 (E.D. Tex. Oct. 26, 2020) ............................... 6

Alice, 134 S.Ct. at 2356 ............................................................................................................ 8, 13, 14, 15

Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1300 (Fed. Cir. 2016)......................... 9, 10

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)................................................................................... 1, 20, 22

Bancorp Servs., 687 F.3d at 1278............................................................................................................. 13

Bascom Global Internet Svcs, Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016) ........ 10

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)............................................................ 1, 20, 21

Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018)......................................................... 6, 9, 10

BillJCo, LLC v. Cisco Sys., Inc., No. 2:21-cv-00181-JRG, 2021 WL 6618529, at *4 (E.D. Tex. Nov. 30, 

2021) ..................................................................................................................................................... 21

Cellspin Soft, Inc. v. Fitbit, Inc., et al., 927 F.3d 1306, 1319 (Fed. Cir. 2019).......................................... 7

Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A., 776 F.3d 1343, 1348 (Fed. Cir. 

2014) ................................................................................................................................................. 1, 12

DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258-59 (Fed. Cir. 2014)................... 10, 11, 14

Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005)........................................................................ 20

ILife Techs., Inc. v. Nintendo of America, Inc., 2021 WL 117027 at *2 (Fed. Cir. Jan. 13, 2021).......... 10

In re Bill of Lading Transmission & Processing Sys. Pat. Litig., 681 F.3d 1323, 1341 (Fed. Cir. 2012)20, 

21

Lormand v. US Unwired, Inc., 565 F.3d 228, 267 (5th Cir. 2009)..................................................... 20, 21

Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S.CT. 1289, 1297) ....................... 13

McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1355-56 (Fed. Cir. 2007)............................................... 21

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Motiva Pats., LLC v. Sony Corp., No. 9:18-CV-00180-JRG-KFG, 2019 WL 4737051, at *4 (E.D. Tex. 

Sept. 27, 2019)...................................................................................................................................... 20

O’Daniel v. Indus. Serv. Sols., 922 F.3d 299, 304 (5th Cir. 2019)........................................................... 20

Perdiemco, LLC v. Industrack LLC, No. 2:15-cv-727-JRG-RSP, 2016 WL 5719697, at *7 (E.D. Tex. 

Sep. 21, 2016) ..................................................................................................................................... 1, 2

PPS Data LLC v. Jack Henry & Assoc., Inc., 404 F.Supp.3d 1021, 1039 (E.D. Tex. 2019)........... 8, 9, 10

Script Sec. Sols. L.L.C. v. Amazon.com, Inc., 170 F. Supp. 3d 928, 935 (E.D. Tex. 2016)................ 19, 20

SIPCO, LLC v. Emerson Elec. Co., 939 F.3d 1301, 1312 (Fed. Cir. 2019) ............................................. 11

SiRF Tech., Inc. v. Int’l Trade Comm’n, 601 F.3d 1319, 1333 (Fed. Cir. 2010)...................................... 14

Skinner v. Switzer, 562 U.S. 521, 530 (2011)........................................................................................... 19

Slyce, 2020 WL 278481 at *4..................................................................................................................... 7

SRI Int’l, Inc. v. Cisco Sys., Inc., 930 F.3d 1295, 1304 (Fed. Cir. 2019) ................................................... 9

TecSec, Inc. v. Adobe, Inc., 978 F.3d 1278, 1292-93 (Fed. Cir. 2020)..................................................... 11

Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014) (Mayer, J., concurring)........................ 11

Versata Software, Inc. v. NetBrain Technologies, Inc., No. 13-cv-676-LPS-CJB, 2015 WL 5768938, at 

*4 (D. Del. Sep. 30, 2015) ...................................................................................................................... 2

Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 498 (5th Cir. 2015)....................................... 20

Statutes

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

35 U.S.C. § 282................................................................................................................................... 1, 2, 5

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Plaintiff Intercurrency LLC (“Plaintiff” or “Symbology”) respectfully submits this Brief in 

Opposition to Defendant Keurig Dr. Pepper, Inc. (“Defendant” or “KDP”) Rule 12(b)(6) Motion to 

Dismiss [Dkt. No. 6] (“KDP’s Motion”). As will be shown in greater detail herein below, KDP’s 

Motion lacks merit and should be summarily denied.

I. KDP Has Not Met Its Burden

KDP’s Motion should be denied. Plaintiff has plead enough facts “to state a claim to relief that 

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 547 (2007)). There is at least a “reasonable inference that the [KDP] is liable 

for the misconduct alleged.” Iqbal, 556 U.S. at 678. 

A. Claim 1 of the ’752 Patent Is Not Representative

Each claim is entitled to an independent presumption of validity. “Each claim of a patent

(whether in independent, dependent, or multiple dependent form) shall be presumed valid

independently of the validity of other claims; dependent or multiple dependent claims shall be

presumed valid even though dependent upon an invalid claim. The burden of establishing invalidity of 

a patent or any claim thereof shall rest on the party asserting such invalidity.” 35 U.S.C. § 282. 

Accordingly, a party that asserts invalidity bears the burden of establishing that each challenged claim 

is patent-ineligible. This Court has stated that “when the movant relies on a representative claim in its § 

101 analysis, it bears the burden of showing that the other asserted claims are ‘substantially similar and 

linked to the same abstract idea.’” Perdiemco, LLC v. Industrack LLC, No. 2:15-cv-727-JRG-RSP, 

2016 WL 5719697, at *7 (E.D. Tex. Sep. 21, 2016) (quoting Content Extraction & Transmission LLC 

v. Wells Fargo Bank, N.A., 776 F.3d 1343, 1348 (Fed. Cir. 2014)). A challenger cannot meet that 

burden by selecting one claim and try to shift the burden onto the patent holder to demonstrate that 

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other claims are of a different character. Any such rule would violate the clear statutory prescription of 

§ 282.

Defendant declares, without complete analysis, that claim 1 of the ’752 patent is representative 

of all Asserted Claims1in the four (4) asserted patents. (Dkt. No. 6, Motion at 7-8 (“Motion”)). Mere

conclusory statements, however, are not enough to meet Defendant’s burden to establish that claim 1 is, 

in fact, representative of all asserted claims for purposes of the abstract idea analysis. See, e.g., Versata 

Software, Inc. v. NetBrain Technologies, Inc., No. 13-cv-676-LPS-CJB, 2015 WL 5768938, at *4 (D. 

Del. Sep. 30, 2015) (“[W]ith Defendants having given negligible attention to the remainder of the 

claims, the Court does not find it wise or appropriate to make a final determination as to the subject 

matter eligibility of such claims at this time”); Perdiemco, 2016 WL 5719697, at *7.

Moreover, Defendant is factually incorrect in their assertion that claim 1 is representative. While 

claim 1 recites certain important features of the inventive concept, other asserted claims recite distinct 

claim limitations that further define variations of the inventiveness of the claimed subject matter. For 

example, dependent claims of the ’752 patent further highlight non-representative differences as shown 

below that are not present at all in Claim 1 of the ’752 Patent. (Dkt. No. 1-2 at 17-18). 

 

1

Plaintiff has not even reached the stage in the litigation to disclose its “Asserted Claims” in the four asserted patents-in-suit 

(Dkt. Nos. 1-1, 1-2, 1-3, 1-4), such that the sweeping allegation by Defendant that all the claims are “representative of claim 

1 of the ‘752 patent, is simply not a true statement.

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Figure 1 - Dkt. No. 1-2, '752 Patent, Claims 2, 3, 4.

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Figure 2 - Claims 5-9 of the '752 patent, Dkt. No. 1-2 at 17.

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Figure 3 - Claims 11-16 of the '752 patent (Dkt. No. 1-2 at 17).

Having presented no argument or analysis with respect to these elements and the other claims in 

the additional three (3) asserted patents (Dkt. Nos. 1-1, 1-3, 1-4) Defendant KDP has failed to meet its

burden. Section 282 precludes the shortcut Defendants would like to take here. Plaintiff is entitled to a 

presumption of validity on every claim.

B. There Is a Genuine Issue of Material Fact

As shown herein, the Asserted Claims are drawn to patent-eligible subject matter. Even if KDP

could prove the Asserted Claims are directed to an abstract idea (which it cannot), KDP has 

nevertheless failed to establish a lack of factual dispute with respect to the allegations of the Complaint 

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relating to the existence of an inventive concept. For example, KDP fails to meet its burden to deny the 

Complaint’s factual basis as to “whether a claim element or combination of elements is wellunderstood, routine and conventional to a skilled artisan in the relevant field,” which is a question of 

fact that must be “proven by clear and convincing evidence.” Berkheimer v. HP Inc., 881 F.3d 1360, 

1368 (Fed. Cir. 2018) (emphasis added).

II. The Asserted Claims are Patent Eligible Under 35 U.S.C. § 101

KDP’s Motion raises the now customary boilerplate argument that all Asserted Claims are 

invalid because they allegedly fail to recite patent-eligible subject matter. KDP’s Motion is premised on 

a gross oversimplification of the Asserted Claims and the underlying notion that virtually no invention 

remotely relating to asset trading can be patent eligible. Accordingly, KDP’s Motion fails on the merits 

and should be denied.

First and foremost is the obvious fact that this issue is presented to the Court at the pleading 

stage without the benefit of any established record or discovery. As such, the Court is left with zero 

developed record from which it could possibly assess what was, and what was not, well-understood, 

routine, and conventional in the art as of September 15, 2010, not to mention a lack of familiarity with 

the disclosures and an absence of claim construction. For all of the reasons this Court has previously 

outlined, see, e.g., AlexSam, Inc. v. Cigna Corp., 2020 WL 7233403 at *4-5 (E.D. Tex. Oct. 26, 2020)

(denying motion to dismiss), the Asserted Claims here cannot and should not be summarily invalidated 

simply because KDP refuses to accept the non-abstract nature of, and numerous inventive concepts 

captured in, the Asserted Claims. KDP’s lack of an actual representative claim further compounds the 

burden KDP fails to meet.

Again, the Asserted Claims of the patents are presumptively novel and non-obvious, 

presumptively drawn to patent-eligible subject matter, and presumptively properly examined and 

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allowed by the Examiner(s) at the United States Patent Office. See, e.g., Cellspin Soft, Inc. v. Fitbit, 

Inc., et al., 927 F.3d 1306, 1319 (Fed. Cir. 2019). 

Further, at the pleading stage, the Court is required by law not only to accept all factual 

allegations in the operative Complaint as true, but also to draw all reasonable inferences in the 

patentee’s favor. Slyce, 2020 WL 278481 at *4. Here, just as in the Cellspin case, the Complaint 

contains a multitude of specific and plausible statements of fact establishing the non-abstract nature of 

the Asserted Claims.

More specifically, the Complaint alleges that, as of the Date of Invention in September 15, 2010:

Figure 4 - Dkt. No. 1 at ¶¶ 21, 22.

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Figure 5 - Dkt. No. 1 at ¶¶ 39, 40, 41.

The facts as plead are plainly relevant to the presence of inventive concepts captured in the 

Asserted Claims. These specific factual allegations in the Complaint define the state of the art as of the 

Date of Invention and provide a basis in fact to conclude that the Asserted Claims are indeed patenteligible.

These specific factual allegations, as well as the common written specification of the Asserted 

Patents, define benefits and technological improvements captured in the Asserted Claims over the 

prevailing art as of April 2007. See e.g. Dkt. No. 1 at ¶¶ 16-25, Ex. A. Thus, the Asserted Claims are 

patent-eligible. See PPS Data LLC v. Jack Henry & Assoc., Inc., 404 F.Supp.3d 1021, 1039 (E.D. Tex. 

2019) (“when the claimed technology overrides the routine and conventional sequence of events in 

order to provide a technological benefit, it is eligible at Alice Step Two”) (citing SRI Int’l, Inc. v. Cisco 

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Sys., Inc., 930 F.3d 1295, 1304 (Fed. Cir. 2019). Stated differently, claims such as these include an 

inventive concept when they provide a technological solution to a technological problem. Amdocs 

(Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1300 (Fed. Cir. 2016).

The inventions of the Asserted Claims solve the technical problem facing the industry in 2010 

associated with the difficulty traders had with knowledge of costs and fees in a chosen currency. See 

e.g., Dkt. No. 1 at ¶¶ 15-43. Moreover, the fact that the Complaint recites the disclosures and teachings 

as taken directly from the written specification of the Asserted Claims is fatal to KDP’s Motion.

In Berkheimer, the Court of Appeals fully credited the specification’s disclosure of the state of 

the art, as well as its recitation of improvements over the art, as sufficient to create fact issues 

precluding summary judgment, as long as such were captured in the claims. Berkheimer v. HP Inc., 

881 F.3d 1360, 1369 (Fed. Cir. 2018); see also PPS Data, 404 F.Supp.3d at 1040-41 (“The Federal 

Circuit routinely relies on factual assertions in patent specifications not only as some evidence, but 

conclusive evidence of inventiveness”) (emphasis added). Of course, the benefits of the inventions, as 

noted in the Complaint, are conferred due to the inventive concepts as claimed, as opposed to the mere 

practice of the “abstract idea” suggested by KDP. KDP’s Motion at 9-10.

Once again, these specific factual allegations, which must be taken as true, define benefits and 

technological improvements captured in the Asserted Claims over the prevailing art as of April 2007. 

As such, the Asserted Claims are patent-eligible. As noted, the inventions define unconventional 

approaches over the existing art as of April 2007, in the form of a system that allows for conducting 

security transactions in a preferred currency regardless of what original or market currency the 

securities are being traded in and where the transaction may take place. Formerly, the prior art did not

show prices as well as conduct all transactions in a currency preferred by an investor, regardless of 

whatever currency being used in the primary market for the security/asset. See Dkt. No. 1 at ¶ 18.

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Again, and as noted above, these factual assertions are drawn directly from the intrinsic record 

of the written specification, and explain how the Asserted Claims capture unconventional technological 

improvements over the art. As such, they can be considered as conclusive evidence of the facts as 

stated. Berkheimer, 881 F.3d at 1369; PPS Data, 404 F.Supp.3d at 1040-41. Such inventions satisfy 

the threshold requirement of 35 U.S.C. § 101 and are plainly patent eligible. See Bascom Global 

Internet Svcs, Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016); DDR Holdings, LLC 

v. Hotels.com, L.P., 773 F.3d 1245, 1258-59 (Fed. Cir. 2014); Amdocs (Israel) Ltd. v. Openet Telecom, 

Inc., 841 F.3d 1288, 1301-02 (Fed. Cir. 2016). At a minimum, the facts as presented in the Complaint 

satisfy the Cellspin standard, and KDP’s Motion should be denied.

A. KDP’s Eligibility “Analysis” is Defective

As noted above, the factual allegations of the Complaint in this case are more than sufficient to 

state a plausible claim for relief, and KDP’s Motion should be denied. However, to the extent the 

Court is inclined to evaluate the eligibility of the Asserted Claims on this record, Plaintiff would show 

that, not only is KDP’s “analysis” severely defective, but the Asserted Claims should be affirmatively 

deemed patent-eligible under 35 U.S.C. § 101.

1. Alice Step One – The Claims are Not Directed to an Abstract Idea

First, with respect to Alice Step One, the Asserted Claims are not directed to an abstract idea, 

and the misguided notion that the Asserted Claims recite mere “conventional components” is both 

wrong and entirely irrelevant. See ILife Techs., Inc. v. Nintendo of America, Inc., 2021 WL 117027 at 

*2 (Fed. Cir. Jan. 13, 2021) (“the district court erred to the extent that it incorporated conventionality of 

claim elements at step one”; and “[a] claim is not directed to an abstract idea simply because it uses 

conventional technology”).

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At the Step One phase, the proper approach is to determine what the Asserted Claims are 

“directed to” by evaluating what the patent itself asserts as the “focus” of the claimed advance over the 

prior art. TecSec, Inc. v. Adobe, Inc., 978 F.3d 1278, 1292-93 (Fed. Cir. 2020). Such an analysis must 

remain true to the language of the claims themselves in light of the specification and must be careful 

to avoid overgeneralizing the claims. Id. (citing cases). The focus of the claimed advance over the 

prior art in this case is a system that allows for a trading server coupled to a market and currency 

exchange server, wherein the costs and fees associated with the trading server are dynamically changed 

in accordance with the prevailing exchange rate updated constantly. This is not an abstract idea. To 

the contrary, this is a solution to the technical problem facing the industry in 2010 associated with the 

difficulty of a user obtaining information from a website that a user is directed to by capturing an image 

of a QR code on a particular object. And KDP attempts to repeatedly rely on a concurrence opinion 

from Judge Mayer, in Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014) (Mayer, J., 

concurring), setting aside this is not even controlling law, “[t]he question of whether a patent is for a 

‘technological invention’ is fact-specific and must be considered on a case-by-case basis.” See SIPCO, 

LLC v. Emerson Elec. Co., 939 F.3d 1301, 1312 (Fed. Cir. 2019).

Here, experts are needed here to assist the Court in determining what is a technological 

invention.

The Asserted Claims do not fall within the contours of Ultramercial. The Asserted Claims have 

physical, tangible and specialized components that are directed to more than the performance of an 

abstract idea. Thus, the present claims recite a technical solution to a problem arising in the realm of 

computing networks, which is significantly more than an abstract idea, consistent with the decision in 

DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed Cir. 2014).

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Thus, the Asserted Claims have a clear, concrete and tangible form in that they are directed to 

providing utilize an unconventional specialty trading server coupled to a market and currency exchange 

server, wherein the costs and fees associated with the trading server are dynamically changed in 

accordance with the prevailing exchange rate updated constantly, with tangible and concrete hardware 

that has been adapted for that purpose.

Here, KDP argues that the Asserted Claims are “[a]t a high level, this claim describes the most 

generic functional steps of a standard computer (i.e., capturing, detecting, decoding, sending, receiving, 

and displaying data).” KDP’s Motion at 15. KDP further argues that “[t]he claim purports to implement 

the steps with conventional components like a “portable electronic device,” a “remote server,” a 

“display device,” and generic “visual detection applications” does not make it any less abstract.’” 

KDP’s Motion at 15 (with no case law citation provided to the Court). This assertion is based on a 

gross oversimplification of the Asserted Claims, and is simply false. One example of a unique 

component of the claimed invention in Claim 1 of the ’752 patent is a “decode string.” But KDP 

ignores this.

Instead, Defendant KDP asserts that claim 1 of the ’752 patent fails to satisfy Step 1 of the Alice 

Test because “Claim 1 of the ’752 Patent does not include any specific limitations or steps regarding 

extracting data or decoding the data.” (Motion at 12-13 (Dkt. No. 6, pdf pages 17-18 of 25)). Yet, 

Defendant KDP in its own motion provides the Court with some claim elements being performed, but 

not like a mere scanner detecting letters in the alphabet as KDP attempts to trivialize the Claim 1 of the 

’752 Patent inventions too. As such, KDP is mistaken that Content Extraction and Transmission, LLC 

v. Wells Fargo Bank, Nat Ass’n, 776 F.3d 1343 at 1349 (Fed. Cir. 2014), that involved simply “optical 

character recognition technology,” is related to this case, as it is completely distinguishable. Here, a 

symbol is being detected, not a well-known character that even a human could recognize. There is no 

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way a human being can look at a symbol and know where that would send a person that captured a QR 

code and how that person could find a specific website, which the invention does do.

2. Alice Step Two – The Asserted Claims Include an Inventive Concept

As discussed above, the Asserted Claims are not directed to an abstract idea. Further, even 

assuming, arguendo, that the Asserted Claims are directed to an abstract idea, the Asserted Claims 

nonetheless include an inventive concept.

The second step of the Alice analysis requires determining whether a claim that is found to be 

directed to an abstract idea includes additional elements that transform the nature of the claim into 

something “significantly more” than the ineligible subject matter. See Alice, 134 S.Ct. at 2355. This 

requires that one “consider the elements of each claim both individually and ‘as an ordered 

combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a 

patent-eligible application.” Id. (citing Mayo Collaborative Services v. Prometheus Laboratories, Inc., 

132 S.CT. 1289, 1297).

Although the machine-or-transformation test is not the sole test governing a Section 101 

analyses, it can provide a “useful clue” in the second step of the Alice framework. Bancorp Servs., 687 

F.3d at 1278 (citing Bilski, 561 U.S. at 604) (“[W]hile not the sole test for deciding whether an 

invention is a patent-eligible ‘process,’” the machine-or-transformation test “remains a ‘useful and 

important clue, an investigative tool, for determining whether some claimed inventions are processes 

under § 101”).

The Supreme Court has acknowledged that the machine-or-transformation test “may well 

provide a sufficient basis for evaluating processes similar to those in the Industrial Age—for example, 

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inventions grounded in a physical or other tangible form.” Bilski, 561 U.S. at 605. Here, application of 

the machine-or-transformation test confirms the claims are patent-eligible.

A claimed process can be patent-eligible under § 101 if: “(1) it is tied to a particular machine or 

apparatus, or (2) it transforms a particular article into a different state or thing.” In re Bilski, 545 F.3d 

943, 954 (Fed. Cir. 2008) (en banc), aff’d, Bilski, 561 U.S. 593. The Asserted Claims are tied to a 

particular machine or apparatus. In particular, the Asserted Claims are tied to a utilize an 

unconventional specialty trading server that is linked to both currency exchange server and market 

exchange server. See Ex. B, ’863 Patent, Cl. 1. Within the trading server, “costs and fees are 

dynamically changed in accordance with the prevailing exchange rate updated constantly.” See Ex. C, 

’930 Patent, Cl. 12. The Asserted Claims are also tied to a memory device and a transmitter. Id. The 

use of a specialized server and a transmitter are essential to the operation of the claimed systems. See

SiRF Tech., Inc. v. Int’l Trade Comm’n, 601 F.3d 1319, 1333 (Fed. Cir. 2010).

KDP argues that the Asserted Claims recite generic trading computer components. KDP’s 

Motion at 10. As explained above, the claimed “trading server” is not an “off-the-shelf generic 

computer component,” but rather a specialized trading server coupled to a market and currency 

exchange server, wherein the costs and fees associated with the trading server are dynamically changed 

in accordance with the prevailing exchange rate updated constantly. Further, there is nothing in Alice or 

DDR or any of the other seminal cases on patent-eligibility that instructs one to disregard a claim 

element simply because that claim element can be found in the prior art, again in the 2007 era.

Indeed, almost all inventions consist of new combinations of old elements. See DDR, 773 F.3d 

at 1257 n.5 (“[o]n a fundamental level, the creation of new compositions and products based on 

combining elements from different sources has long been a basis for patentable inventions”). Thus, a 

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claim element is not conventional for purposes of a Section 101 analysis just because it appears in the 

prior art.

Rather, when cases such as Alice and Bancorp discussed the “routine” or “insignificant” use of 

computers, they were addressing a computer that merely is programmed to practice a prior art noncomputerized method (e.g., “generating tasks to be performed in an insurance organization” as in 

Accenture). Alice recognized that modern computers can be programmed to facilitate many precomputer tasks, and this is what Alice brings into focus for possible exclusion from patentability. Alice

does not say that one should somehow ignore a claim element that is limited to a specialized computer 

because that computer is in the prior art.

To the contrary, the Asserted Claims recite a combination of elements, including a specialized 

processing device, that together define an architecture that address problems existing at the time of the 

claimed invention in 2010.

B. Claim Construction

In the Parties’ Joint Letter Regarding Necessity of Prior Claim Construction to Decide Patent 

Eligibility under 35 U.S.C. § 101, Plaintiff asserted that the following terms require construction prior 

to the Court ruling on KDP’s Motion. (Dkt. No. 16, Amended Joint Letter).

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Figure 6 - Plaintiff Symbology's Portion of Joint Letter Identifying Specific Claim Limitations that 

Require Claim Construction. (Dkt. No. 16-1 at 3).

Oddly, in some sort attempt to just avoid the topic Defendant KPG wrote right above 

Symbology’s list of these disputed terms, that Symbology has not made KPG aware of any disputed 

terms. This is not true, as shown directly below that statement in the Joint Letter at page 3 (Dkt. 16-1 at 

3), but also in Symbology’s correspondence lead up to the meet and confer, where Symbology’s counsel 

took the lead, and on July 11, 2023, provided KDP a list of disputed claim terms it wanted to meet and 

confer about. Garteiser Decl. at ¶2; Exhibit 1. 

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Figure 7 - Excerpts from July 11, 2023 email from Counsel for Symbology to Defendant KDP's Counsel.

Symbology Counsel’s communication was a full week before KDP’s counsel submitted the 

misleading statement made to the Court that Symbology had not notified KDP of any disputed terms. 

(Compare Exhibit 1 at 1(Figure 6) with Dkt. No. 16-1 at 2). 

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Figure 8 - Joint Letter Regarding Claim Construction for Section 101 Motion (Dkt. No.16-1 at 3).

Terms such as “decode string” or “symbology associated with an object” or “symbology” are 

just three examples of the terms that Symbology asked KDP for its position on during the meet and 

confer process, but KDP ignored the requested by Symbology. A proper construction of these terms 

[I. (cont.) KDP’s 

Position (page 

2).]

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and phrases are required in order to properly evaluate the merits of KDP’s Section 101 motion to 

dismiss. Further, KDP maintains that the Asserted Claims merely recite generic functional steps of a 

standard computer”. (Motion at 15). But KDP again provides no proposed constructions and its 

characterization of “generic functional steps” completely ignores the teachings of the specification. 

(Dkt. No. 16-1; Dkt. No. 6). For example, an algorithm is disclosed that spans three (3) pages. (Dkt. 

No. 1-2 at Figures 7A, 7B and 7C). Plaintiff disagrees and A proper analysis of this assertion 

necessarily requires the proper construction of at least the terms identified in Plaintiff’s disclosure in 

the Joint Letter. (Dkt. No. 16-1 at 3). 

Further, because KDP’s motion is presented to the Court at the pleading stage, the Court is left 

with zero developed record from which it could possibly assess what was, and what was not, wellunderstood, routine, and conventional in the art as of September 15, 2010, not to mention a lack of 

familiarity with the disclosures. For example, the Complaint states that the Asserted Claims were

“novel, non-obvious, unconventional, and non-routine” and “overcame a number of specific 

technological problems in the industry and provided specific technological solutions.” (Dkt. Nos. 1 at 

¶¶16, 19, 22, 31, 36, 41).

Accordingly, KDP’s motion is premature and should not be taken up until after claim 

construction has occurred in this case and the factual record as to the state of the prior art developed.

III. The Complaint Is Sufficiently Pled

The question on a Rule 12(b)(6) motion to dismiss is not whether the plaintiff will prevail on its 

claims, “but whether [the] complaint was sufficient to cross the federal court’s threshold.” Script Sec. 

Sols. L.L.C. v. Amazon.com, Inc., 170 F. Supp. 3d 928, 935 (E.D. Tex. 2016) (citing Skinner v. Switzer, 

562 U.S. 521, 530 (2011)). The Court must “accept all well-pleaded facts [in the complaint] as true and 

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view the facts in the light most favorable to the plaintiff.” O’Daniel v. Indus. Serv. Sols., 922 F.3d 299, 

304 (5th Cir. 2019) (citation omitted).

After viewing the facts most favorably to the plaintiff, “the court must then decide whether 

those facts state a claim for relief that is plausible on its face.” Script, 170 F. Supp. 3d at 935 (citation 

omitted). The plausibility standard “simply calls for enough fact to raise a reasonable expectation that 

discovery will reveal evidence of [the claim].” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007); 

accord id. at 559, (explaining that claims should only be dismissed at the pleading stage when there is 

“no ‘reasonably founded hope that the [discovery] process will reveal relevant evidence’” (quoting 

Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005))); In re Bill of Lading Transmission & 

Processing Sys. Pat. Litig., 681 F.3d 1323, 1341 (Fed. Cir. 2012) (“As the Supreme Court has 

explained, the plausibility requirement is not akin to a ‘probability requirement at the pleading stage; it 

simply calls for enough fact[s] to raise a reasonable expectation that discovery will reveal’ that the 

defendant is liable for the misconduct alleged.” (quoting Twombly, 550 U.S. at 556)). Courts “are not 

authorized or required to determine whether the plaintiff’s plausible inference . . . is equally or more 

plausible than other competing inferences.” Lormand v. US Unwired, Inc., 565 F.3d 228, 267 (5th Cir. 

2009) (citing Twombly, 550 U.S. at 556). “[W]here the relevant information is beyond the access of the 

plaintiff, courts should generally permit discovery to proceed unless the complaint recites no more than 

sheer speculation about the plaintiff’s entitlement to relief.” Motiva Pats., LLC v. Sony Corp., No. 9:18-

CV-00180-JRG-KFG, 2019 WL 4737051, at *4 (E.D. Tex. Sept. 27, 2019) (citing Wooten v. 

McDonald Transit Assocs., Inc., 788 F.3d 490, 498 (5th Cir. 2015)); Ashcroft v. Iqbal, 556 U.S. 662, 

679 (2009)). At the 12(b)(6) stage, the court may decline to determine at this juncture whether asserted 

method claims require multiple steps or which actors must perform those steps. BillJCo, LLC v. Cisco 

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Sys., Inc., No. 2:21-cv-00181-JRG, 2021 WL 6618529, at *4 (E.D. Tex. Nov. 30, 2021) (citing Actus, 

LLC v. Bank of Am. Corp., No. 2-09-cv-102-TJW, 2010 WL 547183, at *2 (E.D. Tex. Feb. 10, 2010). 

A motion to dismiss under Rule 12(b)(6) raises purely procedural questions that are governed 

by the law of the regional circuit. In re Bill of Lading, 681 F.3d at 1331 (citing McZeal v. Sprint Nextel 

Corp., 501 F.3d 1354, 1355-56 (Fed. Cir. 2007)). In the Fifth Circuit, motions to dismiss “are viewed 

with disfavor and are rarely granted.” Lormand, 565 F.3d at 232 (citation omitted); see also Twombly, 

550 U.S. at 556 (“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual 

proof of those facts is improbable, and that a recovery is very remote and unlikely.” (internal quotation 

marks and citation omitted).

Plaintiff has pled that “Defendant sells, advertises, offers for sale, uses, or otherwise provides 

QR codes associated with a website of Defendant, as well as any similar products (the “Accused 

Instrumentalities”), which infringe at least Claim 1 of the ’773 Patent, Claim 1 of the ’752 Patent, 

Claim 1 of the ’369 Patent, and Claim 1 of the ’190 Patent . These patent claims are shown for 

Defendant’s Dr. Pepper® brand, as representative of the infringement that applies equally to 

Defendant’s other brands including Canada Dry®, Snapple®, Bai®, and Mott’s®.” Dkt. No. 1 ¶44. 

Also, Plaintiff attached infringement charts for each of these four (4) claims pulled from each of the four (4) 

asserted patents.

Accordingly, the Complaint clearly alleges KDP are the direct infringers, and points to specific 

to a method for user to capture a QR code in a picture and then obtain a link and link too a website that 

provides additional information. 

 To the extent the Court finds any aspect of the Complaint is deficient, Plaintiff requests leave 

to amend additional facts in support of its claims. See Fed. R. Civ. P. 15(a)(2) (“The court should freely 

give leave [to amend] when justice so requires.”).

IV. Conclusion

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KDP’s Motion should be denied. Without even a proper representative claim analysis, KDP

simply fails to meet its burden. And Plaintiff has plead enough facts “to state a claim to relief that is 

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 547 (2007)). As shown herein, the Asserted Claims are drawn to patenteligible subject matter, and KDP has failed to prove otherwise.

Dated: August 7, 2023 Respectfully Submitted

/s/ Randall Garteiser

M. Scott Fuller

 Texas Bar No. 24036607

 sfuller@ghiplaw.com

Randall Garteiser 

 Texas Bar No. 24038912

 rgarteiser@ghiplaw.com

Christopher A. Honea

 Texas Bar No. 24059967

 chonea@ghiplaw.com

René A. Vazquez

 Virginia Bar No. 41988

 rvazquez@ghiplaw.com

GARTEISER HONEA, PLLC

119 W. Ferguson Street

Tyler, Texas 75702

Telephone: (903) 705-7420

Facsimile: (903) 405-3999

ATTORNEYS FOR PLAINTIFF

INTERCURRENCY SOFTWARE LLC

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