IN THE 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-00249-JRG 

JURY TRIAL DEMANDED 

KEURIG DR PEPPER, INC.’S MEMORANDUM IN SUPPORT OF RULE 

12(b)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 

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TABLE OF CONTENTS 

I. SUMMARY OF THE ARGUMENT ................................................................................... 1

II. NATURE AND STATE OF THE PROCEEDINGS .......................................................... 2

III. STATEMENT OF THE ISSUE ........................................................................................... 2

IV. STATEMENT OF THE FACTS .......................................................................................... 2

V. LEGAL STANDARD ............................................................................................................ 4

A. Legal Standard for Dismissal Pursuant to Rule 12(b)(6). .......................................... 4

1. This Case Should Be Disposed of at the Pleading Stage Through Rule 12(b)(6). 4

2. The Law of 35 U.S.C. § 101. ..................................................................................... 5

VI. ARGUMENT ......................................................................................................................... 6

A. The Asserted Patents are Invalid Under § 101. ........................................................... 7

1. Claim 1 of the ’752 Patent is representative. .......................................................... 7

2. Alice Step 1: Claim 1 of the ’752 Patent is directed to the abstract idea of data 

recognition and retrieval. .......................................................................................... 9

3. Alice Step 2: The claims of the Asserted Patents contains no inventive concept 

sufficient to transform the abstract idea into patent-eligible matter.................. 14

B. There are no claim construction or factual disputes preventing the Court from 

ruling on this issue at the Rule 12 stage. .................................................................... 17

VII.CONCLUSION .................................................................................................................... 19

CERTIFICATE OF SERVICE ................................................................................................. 21

 

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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Aatrix Software, Inc. v. Green Shades Software, Inc., 

882 F.3d 1121 (Fed. Cir. 2018)..................................................................................................1 

Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 

134 S. Ct. 2347 (2014) ..................................................................................................... passim

Ancora Technologies, Inc. v. HTC America, Inc., 

908 F.3d 1343 (Fed. Cir. 2018)................................................................................................13 

Appistry, Inc. v. Amazon.com, Inc., 

195 F. Supp. 3d 1176 (W.D. Wash., 2016) aff’d sub nom. Appistry, LLC v. Amazon.com, Inc., 

676 F. App’x 1008 (Fed. Cir. 2017) ........................................................................................18 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) ...................................................................................................................4 

Bancorp Servs. L.L.C. v. Sun Life Assur. Co., 

687 F.3d 1266 (Fed. Cir. 2012)............................................................................................5, 16

Berkheimer v. HP Inc., 

881 F.3d 1360 (Fed. Cir. 2018)................................................................................................17 

Bilski v. Kappos, 

561 U.S. 593 (2010) ...........................................................................................................5, 6, 9 

buySAFE, Inc. v. Google, Inc., 

765 F.3d 1350 (Fed. Cir. 2014)................................................................................................16 

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

927 F.3d 1306 (Fed. Cir. 2019)..................................................................................................1 

Content Extraction and Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 

776 F.3d 1343 (Fed. Cir. 2014)................................................................................8, 10, 11, 16 

Cuvillier v. Sullivan, 

503 F.3d 397 (5th Cir. 2007) .....................................................................................................4 

Cyberfone Sys., LLC v. CNN Interactive Grp., Inc., 

558 F. App’x 988 (Fed. Cir. 2014) ..........................................................................................13 

CyberSource Corp. v. Retail Decisions, Inc., 

654 F.3d 1366 (Fed. Cir. 2011)..................................................................................................6 

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DDR Holdings, LLC v. Hotels.com, L.P., 

773 F.3d 1245 (Fed. Cir. 2014)................................................................................................15 

Diamond v. Chakrabarty, 

447 U.S. 303 (1980) ...................................................................................................................5 

Diamond v. Diehr, 

450 U.S. 175 (1981) ...................................................................................................................6 

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

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

Enfish, LLC v. Microsoft Corp., 

822 F.3d 1327 (Fed. Cir. 2016)................................................................................................15 

First-Class Monitoring, LLC v. Ups of Am., Inc., 

389 F. Supp. 3d 456 (E.D. Tex. 2019) .....................................................................................17 

Fort Props., Inc. v. Am. Master Lease LLC, 

671 F.3d 1317 (Fed. Cir. 2012)..................................................................................................6 

Intellectual Ventures I LL v. Capital One Bank U.S.A., 

792 F.3d 1363 (Fed. Cir. 2015)................................................................................................16 

Internet Patents Corp. v. Active Network, Inc., 

790 F.3d 1343 (Fed. Cir. 2015)................................................................................................14 

Mayo Collaborative Servs. v. Prometheus Labs., Inc., 

132 S. Ct. 1289 (2012) ...............................................................................................................6 

Parker v. Flook, 

437 U.S. 584 (1978) ...................................................................................................................6 

Phoenix Licensing, L.L.C. v. Consumer Cellular, Inc., 

2:16-cv-152-JRG-RSP, 2017 WL 1065938 (E.D. Tex. Mar. 8, 2017) ......................................8 

PPS Data, LLC v. Jack Henry & Assocs., Inc., 

No. 2:18-cv-00007-JRG, 2019 WL 1317286 (E.D. Tex. Mar. 21, 2019) ..................................8 

Recognicorp, LLC v. Nintendo Co., Ltd., 

855 F.3d 1322 (Fed. Cir. 2017)....................................................................................11, 12, 16 

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

898 F.3d 1161 (Fed. Cir. 2018)..................................................................................................9 

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

873 F.3d 905 (Fed. Cir. 2017)..................................................................................1, 12, 14, 15 

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

983 F.3d 1353 (Fed. Cir. 2020)................................................................................................18 

In re TLI Commc’ns LLC Patent Litig., 

823 F.3d 607 (Fed. Cir. 2016)..................................................................................................15 

Ultramercial, Inc. v. Hulu, LLC, 

772 F.3d 709 (Fed. Cir. 2014) (Mayer, J., concurring) ............................................5, 10, 13, 14 

Statutes 

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

Other Authorities 

Fed. R. Civ. P. 12 .............................................................................................................................1 

Fed. R. Civ. P. 12(b)(6).......................................................................................................... passim

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I. SUMMARY OF THE ARGUMENT 

Keurig Dr Pepper, Inc. (“KDP”) requests that the Court dismiss this case because U.S. 

Patent Nos. 7,992,773 (the “’773 Patent”), 8,424,752 (the “’752 Patent”), 8,651,369 (the “’369 

Patent”), and 8,936,190 (the “’190 Patent”) (the “Asserted Patents”) do not embrace patent-eligible 

subject matter. The claims of the Asserted Patents are directed to the abstract idea of data 

recognition and retrieval, and none of the claims recites any specific non-conventional hardware 

or software. In Secured Mail Solutions LLC v. Universal Wilde, Inc., 873 F.3d 905, 912 (Fed. Cir. 

2017), the Federal Circuit held claims directed to decoding a QR code—like the claims at issue in 

this case—invalid under Alice, and affirmed the district court’s grant of a motion to dismiss 

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The claims of the Asserted 

Patents cannot be meaningfully distinguished from the Secured Mail claims and are thus invalid 

for the same reasons. 

In its Complaint, Symbology included allegations of novelty and non-obviousness. (See, 

e.g., Dkt. No 1 (“Compl.”), ¶¶ 16, 19, 22.) These allegations consist of legal conclusions and 

characterizations of the claimed invention that are contradicted by the patent’s specification. While 

pleadings may properly be considered for a Rule 12 motion to dismiss (subject to the 

Twombly/Iqbal pleading standards), the pleadings cannot be used to alter or rewrite the terms of a 

patent or to confer eligibility on otherwise ineligible subject matter. Cf. Aatrix Software, Inc. v. 

Green Shades Software, Inc., 882 F.3d 1121, 1125 (Fed. Cir. 2018); see also Cellspin Soft, Inc. v. 

Fitbit, Inc., 927 F.3d 1306, 1317 (Fed. Cir. 2019). They are thus irrelevant to the § 101 analysis. 

Resolving this issue does not require discovery or formal claim construction. To avoid 

waste of judicial and party resources unnecessarily litigating an invalid patent, KDP thus requests 

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that the Court dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil 

Procedure for failure to state a claim upon which relief can be granted. 

II. NATURE AND STATE OF THE PROCEEDINGS 

On May 30, 2023, Plaintiff Symbology filed its Complaint for patent infringement, 

accusing KDP of infringing the Asserted Patents. Symbology accuses KDP of infringing 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 by KDP’s alleged use of a Quick Response Code. (See Compl., ¶ 44.) 

III. STATEMENT OF THE ISSUE 

Abstract ideas are ineligible for patentability under 35 U.S.C. § 101, absent an inventive 

concept that amounts to significantly more than the abstract idea. The claims of the Asserted 

Patents are directed to the abstract idea of data recognition and retrieval. The Asserted Patents do 

not include an inventive concept beyond that idea. Should the Court therefore dismiss 

Symbology’s claims pursuant to Rule 12(b)(6)? 

IV. STATEMENT OF THE FACTS 

The Asserted Patents are directed to “enabling a portable electronic device to retrieve 

information about an object when the object’s symbology, e.g., a barcode, is detected.” ’752 Patent 

and ’369 Patent, at Abstract. Claim 1 of the ’752 Patent, set forth below, is representative of the 

claims of the Asserted Patents: 

1. A method comprising: 

capturing a digital image using a digital image capturing device that is 

part of a portable electronic device; 

detecting symbology associated with an object within the digital image 

using a portable electronic device; 

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decoding the symbology to obtain a decode string using one or more 

visual detection applications residing on the portable electronic 

device; 

sending the decode string to a remote server for processing; 

receiving information about the object from the remote server wherein 

the information is based on the decode string of the object; 

displaying the information on a display device associated with the 

portable electronic device. 

’752 Pat., Cl. 1. 

Under Symbology’s characterization of the Asserted Patents, this claim can be broken 

down into six main steps: (1) capturing an image with a camera or a scanner on a “portable 

electronic device” (e.g., taking a photograph or scanning an image with a smartphone); (2) 

detecting a symbology (e.g., recognizing a barcode in the captured image); (3) decoding the 

symbology to obtain a “decode string” (e.g., reading information from the barcode); (4) sending 

the “decode string” to a “server” for processing (e.g., requesting a webpage based on the 

information obtained from the barcode); (5) receiving information from the “server” in response 

(e.g., receiving the contents of the webpage ); and (6) displaying the information received on the 

portable electronic device (e.g., displaying a webpage). Put simply, these steps are directed to 

recognizing and retrieving information associated with a pattern. 

The applicant made clear through his own language in the specification that the 

components and processes for carrying out the claimed method were conventional. For example, 

the claimed “portable electronic device” can be virtually any mobile device capable of taking a 

photograph or scanning an image. See ’752 Patent, 1:58–61 (“Examples of the portable electronic 

devices that contain both applications and imaging systems include Apple Computer’s IPhone, 

Google’s Droid, and various mobile devices from Motorola”); id., 2:57–61 (“Using any applicable 

visual detection device (e.g., a camera, scanner, or other device) on the portable electronic device, 

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the user may select an object by scanning or capturing an image of symbology (e.g., barcodes) 

associated with the object.”). The applicant further acknowledged that various programs and 

applications operable on a portable electronic device to scan and decode a barcode were available 

in the prior art. Id., 3:29–33 (“Examples of applications that allow scanning include Neomedia’s 

Neo Reader, Microsoft’s Smart Tags, Android’s Shop Savvy, Red Laser, ScanBuy, etc.”). 

According to the ’752 Patent, once a barcode is decoded (using any of these existing applications), 

the “decode string” (i.e., the information obtained from the barcode) is then “sent” to a “remote 

server” to retrieve information (e.g., webpage content) that is then displayed on the portable 

electronic device. Id., 3:21–28. 

V. LEGAL STANDARD 

A. Legal Standard for Dismissal Pursuant to Rule 12(b)(6). 

1. This Case Should Be Disposed of at the Pleading Stage Through Rule 

12(b)(6). 

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss 

a complaint that fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) 

motion, a complaint “must provide the plaintiff’s grounds for entitlement to relief—including 

factual allegations that when assumed to be true raise a right to relief above the speculative level.” 

Cuvillier v. Sullivan, 503 F.3d 397, 401 (5th Cir. 2007). Although factual allegations are taken as 

true, legal conclusions are given no deference—those matters are left for the court to decide. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (tenet that allegations are taken as true on a motion to 

dismiss “is inapplicable to legal conclusions”). “[W]hen the allegations in a complaint, however 

true, could not raise a claim of entitlement to relief [as a matter of law], this basic deficiency should 

. . . be exposed at the point of minimum expenditure of time and money by the parties and the 

court.” Cuvillier, 503 F.3d at 401 (internal citations and quotations omitted). 

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Patentability under 35 U.S.C. § 101 is a threshold legal issue. Bilski v. Kappos, 561 U.S. 

593, 602 (2010). Accordingly, the § 101 inquiry is properly raised at the pleadings stage if it is 

apparent from the face of the patent that the asserted claims are not directed to eligible subject 

matter. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 718-19 (Fed. Cir. 2014) (Mayer, J., 

concurring). In those situations, claim construction is not required to conduct a § 101 analysis. 

Bancorp Servs. L.L.C. v. Sun Life Assur. Co., 687 F.3d 1266, 1273 (Fed. Cir. 2012) (“[W]e 

perceive no flaw in the notion that claim construction is not an inviolable prerequisite to a validity 

determination under § 101.”). 

2. The Law of 35 U.S.C. § 101. 

Section 101 of the Patent Act sets forth four categories of patentable subject matter: “any 

new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. Also, 

the law recognizes three exceptions to patent eligibility: “laws of nature, physical phenomena, and 

abstract ideas.” Diamond v. Chakrabarty, 447 U.S. 303, 308 (1980). Abstract ideas are ineligible 

for patent protection because a monopoly over these ideas would preempt their use in all fields. 

See Bilski, 561 U.S. at 611–12. In other words, “abstract intellectual concepts are not patentable, 

as they are the basic tools of scientific and technological work.” Id. at 653 (quoting Gottschalk v. 

Benson, 409 U.S. 63, 67 (1972)). 

Determining whether a patent claim is impermissibly directed to an abstract idea involves 

two steps. First, the court determines “whether the claims at issue are directed to a patent-ineligible 

concept.” Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2355 (2014). Second, if the 

claim contains an abstract idea, the court evaluates whether there is “an ‘inventive concept’—i.e., 

an element or combination of elements that is sufficient to ensure that the patent in practice 

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amounts to significantly more than a patent upon the ineligible concept itself.” Id. (internal 

quotations and citations omitted). 

Transformation into a patent-eligible application requires “more than simply stating the 

abstract idea while adding the words ‘apply it.’” Id. at 2357 (quoting Mayo Collaborative Servs. 

v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1294 (2012)). Indeed, if a claim could be performed in 

the human mind, or by a human using pen and paper, it is not patent-eligible. CyberSource Corp. 

v. Retail Decisions, Inc., 654 F.3d 1366, 1372 (Fed. Cir. 2011). Also, a claim is not meaningfully 

limited if it includes only token or insignificant pre- or post-solution activity—such as identifying 

a relevant audience, category of use, field of use, or technological environment. Mayo, 132 S. Ct. 

at 1297–98, 1300–01; Bilski, 561 U.S. at 610; Diamond v. Diehr, 450 U.S. 175, 191–92 & n.14 

(1981); Parker v. Flook, 437 U.S. 584, 595 n.18 (1978). Finally, “simply appending conventional 

steps, specified at a high level of generality, to laws of nature, natural phenomena, and abstract 

ideas cannot make those laws, phenomena, and ideas patentable.” Mayo, 132 S. Ct. at 1300; see 

also Fort Props., Inc. v. Am. Master Lease LLC, 671 F.3d 1317, 1323 (Fed. Cir. 2012) (“Such a 

broad and general limitation does not impose meaningful limits on the claim’s scope.”). 

VI. ARGUMENT 

Symbology’s Complaint should be dismissed. The claims of the Asserted Patents are 

invalid under 35 U.S.C. § 101 because they fail both steps of the Alice test. Each of the claims is 

directed to the abstract idea of data recognition and retrieval. Abstract ideas are not eligible for 

patenting. None of the claims contains an “‘inventive concept’ . . . sufficient to ensure that the 

patent in practice amounts to significantly more than a patent upon the ineligible concept itself.” 

See Alice, 134 S. Ct. at 2355 (emphasis added). Because Symbology has failed to state a claim 

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upon which relief may be granted, KDP respectfully requests that the Court grant its motion and 

dismiss this case with prejudice. Fed. R. Civ. P. 12(b)(6). 

A. The Asserted Patents Are Invalid Under § 101. 

1. Claim 1 of the ’752 Patent is representative. 

Claim 1 of the ’752 Patent is representative of the other claims of the Asserted Patents 

because the claims contain the same essential elements. Specifically, all the independent claims, 

Claims 1, 12, and 15 of the ’773 Patent, 1, 17, and 24 of the ’752 Patent, 1, 17, and 24 of the ’369 

Patent, and 1, 17, and 20 of the ’190 Patent include: (1) capturing an image with a camera or a 

scanner; (2) detecting a symbology; (3) decoding the symbology to obtain a “decode string”; (4) 

sending the “decode string” to a “server” for processing; (5) receiving information from the 

“server” in response; and (6) displaying the information received. In addition, Claim 12 of the ’773 

Patent, Claim 17 of the ’752 Patent, Claim 17 of the ’369 Patent, and Claim 17 of the ’190 Patent 

relate to “[a] computer application stored on a computer-readable medium and executable by a 

processing device incorporated in a portable electronic device” performing the same functions, 

and Claim 15 of the ’773 Patent, Claim 24 of the ’752 Patent, Claim 24 of the ’369 Patent, and 

Claim 20 of the ’190 Patent relate to a “symbology management application” performing the same 

functions. 

Some of the dependent claims recite limitations for: (1) running visual detection 

applications in the background (Cl. 4); (2) configuring visual detection applications to 

automatically detect barcodes (Cl. 5); and (3) analyzing the decode string and selecting appropriate 

application to decode (Cl. 9). These claims also suffer from the same results-oriented (and thus 

ineligible) claim language as Claim 1 of the ’752. 

Other dependent claims recite insignificant pre- or post-solution activity, such as allowing 

a user to select certain preferences or store data: 

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At 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). Such a 

broad concept is not patent eligible because it “recite[s] an abstraction—an idea, having no 

particular concrete or tangible form.” Ultramercial, 772 F.3d at 715. That the 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. 

The specification admits that barcode scanning and decoding programs were prevalent at 

the time of the invention. ’752 Pat., 3:29–36. Indeed, the claims implement this prior-art 

technology to carry out the steps of capturing, detecting, decoding, and retrieving information from 

a server. Claim 1 of the ’752 Patent does no more than use existing technology to recognize an 

image, decode the image, then do something based upon the decoded information. It is thus 

directed to the abstract idea of data recognition and retrieval. 

Courts have found similar patent claims to be ineligible. In Content Extraction, the claims 

generally recited “a method of 1) extracting data from hard copy documents using an automated 

digitizing unit such as a scanner, 2) recognizing specific information from the extracted data, and 

3) storing that information in a memory.” Content Extraction, 776 F.3d at 1345. The claimed 

method “could be performed by software on an automated teller machine (ATM) that recognizes 

information written on a scanned check, such as the check’s amount, and populates certain data 

fields with that information in a computer’s memory.” Id. The Federal Circuit concluded in Alice’s 

first step that the claims were “drawn to the abstract idea of 1) collecting data, 2) recognizing 

certain data within the collected data set, and 3) storing that recognized data in a memory”; or, put 

simply: “data recognition and storage.” Id. at 1347. In rejecting the plaintiff’s argument that the 

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claims were not abstract because they required the use of a scanner, the Federal Circuit likened the 

claims to those found abstract in Alice, which “also required a computer that processed streams of 

bits.” Id. Like the Content Extraction claims, Claim 1 of the ’752 Patent is abstract because it 

simply decodes an image to obtain information and then retrieves data from a server based on that 

information. The claims in Content Extraction were directed to data recognition and storage, 

whereas the ’752 Patent is directed to data recognition and retrieval—the former claims stored the 

recognized data, while the latter claims retrieve additional data based on the recognized data. 

In Recognicorp, LLC v. Nintendo Co., Ltd., 855 F.3d 1322 (Fed. Cir. 2017), the Federal 

Circuit found the patent claim at issue to be directed toward the abstract idea of “encoding and 

decoding image data.” Recognicorp, 855 F.3d at 1324. The claim at issue in Recognicorp recited: 

A method for creating a composite image, comprising: 

displaying facial feature images on a first area of a first display via a first device 

associated with the first display, wherein the facial feature images are 

associated with facial feature element codes; 

selecting a facial feature image from the first area of the first display via a user 

interface associated with the first device; 

wherein the first device incorporates the selected facial feature image into a 

composite image on a second area of the first display, wherein the composite 

image is associated with a composite facial image code having at least a 

facial feature element code and wherein the composite facial image code is 

derived by performing at least one multiplication operation on a facial code 

using one or more code factors as input parameters to the multiplication 

operation; and 

reproducing the composite image on a second display based on the composite 

facial image code. 

Id. The Federal Circuit described the claim as a “method whereby a user displays images on a first 

display, assigns image codes to the images through an interface using a mathematical formula, and 

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then reproduces the image based on the codes.” Id. at 1326. The Federal Circuit found that this 

method reflected “standard encoding and decoding.” Id.

The Federal Circuit then explained that encoding and decoding data is “an abstract concept 

long utilized to transmit information.” Id. (citing Intellectual Ventures I LLC v. Capital One Fin. 

Corp., 850 F.3d 1332, 1340–41 (Fed. Cir. 2017) (organizing, displaying, and manipulating data 

encoded for human- and machine-readability is directed to an abstract concept)). The court 

provided several examples of long-utilized methods of encoding and decoding of data to transmit 

information: “Morse code, ordering food at a fast food restaurant via a numbering system, and 

Paul Revere’s ‘one if by land, two if by sea’ signaling system all exemplify encoding at one end 

and decoding at the other end.” Id. Claim 1 of the ’752 Patent likewise simply decodes an image 

to obtain information, an abstract concept. 

Additionally, in Secured Mail, the Federal Circuit found claims directed to encoding and 

decoding a bar code invalid under both Alice steps. Secured Mail, 873 F.3d at 907. The Secured 

Mail claims “provide[d] a method whereby a barcode is generated, affixed to a mail object, and 

sent through the mail system [and t]hen, upon receipt, the barcode is scanned, and data 

corresponding to the sender is sent to the recipient over the network and displayed on the 

recipient’s device.” Id. at 910–11. The Federal Circuit found that “each step of the process is 

directed to the abstract process of communicating information about a mail object using a 

personalized marking.” Id. at 911. And because the claims were “non-specific and lack[ed] 

technical detail,” utilizing “well known” technologies and generic hardware, the Federal Circuit 

concluded that the claims lacked an inventive concept. Id. at 912. 

The idea underlying Claim 1 of the ’752 Patent is just as abstract as those of the Content 

Extraction, Recognicorp, and Secured Mail claims. Claim 1 of the ’752 Patent does not include 

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any specific limitations or steps regarding extracting data or decoding the data. Rather, all of the 

steps required to carry out the method are directed to the generic, conventional ideas of recognizing 

an image, decoding the image, and then doing something based upon the decoded information. 

Cyberfone Sys., LLC v. CNN Interactive Grp., Inc., 558 F. App’x 988, 992 (Fed. Cir. 2014) (finding 

claim directed to “the well-known concept of categorical data storage, i.e., the idea of collecting 

information in classified form, then separating and transmitting that information according to its 

classification, is an abstract idea that is not patent-eligible”). That Claim 1 of the ’752 Patent sends 

and receives the decoded information over a network does not make it any less abstract. See, e.g.,

Ultramercial, 772 F.3d at 716 (noting that “the use of the Internet is not sufficient to save otherwise 

abstract claims from ineligibility under § 101”) (citation omitted). 

Claim 1 thus differs from the claims that the Federal Circuit has held to be eligible because 

they claimed specific means for improving specific computer technology or solving specific 

computer problems. For example, the Federal Circuit addressed the eligibility of claims directed 

to improving computer security in Ancora Technologies, Inc. v. HTC America, Inc., 908 F.3d 1343 

(Fed. Cir. 2018). In that case, the Federal Circuit held the claims eligible and stated, “Improving 

security—here, against a computer’s unauthorized use of a program—can be a non-abstract 

computer-functionality improvement . . . done by a specific technique that departs from earlier 

approaches to solve a specific computer problem.” Id. at 1348. The court was persuaded because 

“[t]he claimed method here specifically identifies how that functionality improvement is 

effectuated in an assertedly unexpected way.” Id. The same is not true of Claim 1 of the ’752 

Patent. It does not require a specific and unconventional technique, and it does not identify any 

specific improvement to computer functionality, much less an unexpected way of effectuating such 

an improvement. 

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By only claiming the desired result—recognizing and retrieving information associated 

with a pattern like a barcode—without describing any specific roadmap for doing so, Claim 1 of 

the ’752 Patent falls short of claiming eligible subject matter under § 101. See Internet Patents 

Corp. v. Active Network, Inc., 790 F.3d 1343, 1348 (Fed. Cir. 2015); Secured Mail, 873 F.3d at 

910–11. 

3. Alice Step 2: The claims of the Asserted Patents contains no inventive concept 

sufficient to transform the abstract idea into patent-eligible matter. 

Because the claims of the Asserted Patents are directed to an abstract idea, the Court must 

next determine whether it contains an “inventive concept sufficient to transform the claimed 

abstract idea into a patent eligible application.” Alice, 134 S. Ct. at 2357 (internal quotations 

omitted). To pass this test, the claims “must include additional features” that “must be more than 

well-understood, routine, conventional activity.” Ultramercial, 772 F.3d at 715 (quotation 

omitted). Here, the claims are broadly generic and do not contain meaningful limitations that 

would restrict it to a non-routine, specific application of the abstract idea. 

Each of the steps recited in Claim 1 of the ’752 Patent is described only at a high level of 

generality as “capturing a digital image,” “detecting” a barcode, “decoding [the barcode] . . . to 

obtain a decode string,” “sending the decode string to a remote server for processing,” “receiving 

information . . . from the remote server,” and “displaying the information.” To accomplish these 

steps, Claim 1 of the ’752 Patent recites the use of a “portable electronic device,” “visual detection 

applications,” and a “remote server.” But the claimed “portable electronic device” can be virtually 

any device capable of taking a photograph (’752 Pat., 1:58–61), the “visual detection applications” 

can be a variety of off-the-shelf applications that users have installed on their smartphones (id., 

3:29–33), and the claimed “server” is implemented using generic hardware (id., 9:65–10:1) to 

perform generic website functions (id., 5:33–42). 

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The applicant’s own characterizations demonstrate that the claimed components do not 

“improve the functioning of the computer itself,” Alice, 134 S. Ct. at 2359, for example by 

disclosing an “improved, particularized method of digital data compression,” DDR Holdings, LLC 

v. Hotels.com, L.P., 773 F.3d 1245, 1259 (Fed. Cir. 2014), or improving “the way a computer 

stores and retrieves data in memory,” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed. 

Cir. 2016). For example, in Enfish, the Federal Circuit distinguished the claims from others that 

“simply add[ed] conventional computer components to well-known business practices,” id. at 

1338, holding instead that “they [we]re directed to a specific improvement to the way computers 

operate,” id. at 1336. In particular, the unconventional structure of the database resulted in 

“increased flexibility, faster search times, and smaller memory requirements.” Id. at 1337. Unlike 

Enfish, nothing in Claim 1 of the ’752 Patent shows any unconventional method that would amount 

to a “specific improvement to the way computers operate.” Therefore, the focus of the ’752 Patent 

is not “on [a] specific asserted improvement in computer capabilities” but instead “on a process 

that qualifies as an ‘abstract idea’ for which computers are invoked merely as a tool.” Id. at 1336. 

There is simply nothing “inventive” about using a known process (i.e., decoding a barcode) 

to access a website. See Secured Mail, 873 F.3d at 912. Moreover, the abstract functional 

descriptions in Claim 1 of the ’752 Patent are devoid of any technical explanation as to how to 

implement the purported invention in an inventive way. See In re TLI Commc’ns LLC Patent Litig., 

823 F.3d 607, 615 (Fed. Cir. 2016) (claims failed Alice’s step 2 where specification limited its 

discussion of “additional functionality” of conventional components “to abstract functional 

descriptions devoid of technical explanation as to how to implement the invention”). Similar to 

the invalidated claim in Recognicorp, nothing in Claim 1 of the ’752 Patent “‘transforms’ the 

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abstract idea of . . . decoding,” i.e., recognizing information, “into patent-eligible subject matter.” 

Recognicorp, 855 F.3d at 1328 (citing Alice, 134 S. Ct. at 2357). 

Courts have repeatedly held that the presence of generic hardware and software like the 

kind recited in Claim 1 of the ’752 Patent does not make an otherwise abstract idea patent-eligible. 

See, e.g., buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (“That a computer 

receives and sends the information over a network—with no further specification—is not even 

arguably inventive.”); Content Extraction, 776 F.3d at 1348 (“At most, [the] claims attempt to 

limit the abstract idea of recognizing and storing information from hard copy documents using a 

scanner and a computer to a particular technological environment. Such a limitation has been held 

insufficient to save a claim in this context.”); Bancorp, 687 F.3d at 1276–77. In addition, an 

“abstract idea does not become nonabstract by limiting the invention to a particular field of use or 

technological environment, such as [mobile services].” Intellectual Ventures I LL v. Capital One 

Bank U.S.A., 792 F.3d 1363, 1366 (Fed. Cir. 2015). 

The other claims of the Asserted Patents include similar limitations regarding the abstract 

idea, but they do not include the specificity necessary to claim patent-eligible subject matter. They 

also do not include anything other than generic components and processes such that they fail to 

contain an inventive concept. Accordingly, the other claims suffer from the same flaws as Claim 

1 of the ’752 Patent. These claims also do not contain any inventive concept amounting to 

“significantly more” than the abstract idea. They do not inject any unconventional computer 

components or techniques. The claims simply apply the same abstract concept of data recognition 

and retrieval, and the Federal Circuit has been clear that the abstract idea itself cannot confer an 

inventive concept. See BSG Tech, 899 F.3d at 1290 (“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 

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

Because the claims of the Asserted Patents are altogether devoid of any “inventive 

concept,” they are patent-ineligible under § 101. See Alice, 134 S. Ct. at 2359–60. 

B. There Are No Claim Construction or Factual Disputes Preventing the Court 

From Ruling on This Issue at the Rule 12 Stage. 

The issue of the patent eligibility is ready for the Court’s consideration because there are 

no factual or claim construction issues. This case is markedly different from Berkheimer and the 

line of cases where factual issues have been found to exist in Alice Step 2. In Berkheimer, the 

Federal Circuit noted that the specification explicitly “describe[d] an inventive feature that store[d] 

parsed data in a purportedly unconventional manner.” Berkheimer v. HP Inc., 881 F.3d 1360, 1369 

(Fed. Cir. 2018). The court added that “[t]he improvements in the specification, to the extent they 

are captured in the claims, create a factual dispute regarding whether the invention describes wellunderstood, routine, and conventional activities . . . so we must analyze the asserted claims and 

determine whether they capture these improvements.” Id. After finding that some claims “contain 

limitations directed to the arguably unconventional inventive concept described in the 

specification,” the court held that there was a question of fact as to whether those claims perform 

“well-understood, routine, and conventional activities.” Id. at 1370. 

It should be noted, however, that “[t]he Berkheimer [] cases do not stand for the proposition 

that a plaintiff can avoid dismissal simply by reciting in the complaint that the invention at issue 

is novel and that the inventive concept resides in the abstract idea itself.” First-Class Monitoring, 

LLC v. Ups of Am., Inc., 389 F. Supp. 3d 456, 471 (E.D. Tex. 2019) (emphasis added). 

Furthermore, “[a]ny allegation about inventiveness, wholly divorced from the claims or the 

specification, does not defeat a motion to dismiss; only plausible and specific factual allegations 

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that aspects of the claims are inventive are sufficient.” Dropbox, Inc. v. Synchronoss Techs., Inc., 

815 F. App’x 529, 538 (Fed. Cir. 2020) (internal quotations omitted). 

Here, Symbology’s bare and implausible allegations in the Complaint cannot defeat this 

motion; otherwise, Rule 12(b)(6) would be rendered toothless against plaintiffs who plead “magic 

words.” (See, e.g., Compl., ¶¶ 26–27, 31, 36, 41.) Patentee plaintiffs should not have the power to 

unilaterally declare that their claims are inventive. See Appistry, Inc. v. Amazon.com, Inc., 195 F. 

Supp. 3d 1176, 1183, n.6 (W.D. Wash., 2016) aff’d sub nom. Appistry, LLC v. Amazon.com, Inc., 

676 F. App’x 1008 (Fed. Cir. 2017) (“Plaintiff’s position is absurd. Requiring the Court to accept 

such facts or legal conclusions (even in the form of an early expert declaration) would permit any 

plaintiff to circumvent the § 101 inquiry on an early motion to dismiss or motion for judgment on 

the pleadings simply by including a few lines attesting to the novelty of the invention.”). At the 

end of the day, what matters is what is claimed, and the patent claims nothing more than the 

abstract idea of data recognition and retrieval. 

The Court’s ineligibility analysis should also disregard Symbology’s boilerplate legal 

conclusions about the inventive aspects of its asserted patent. See Simio, LLC v. FlexSim Software 

Products, Inc., 983 F.3d 1353, 1366 (Fed. Cir. 2020) (“We disregard conclusory statements when 

evaluating a complaint under Rule 12(b)(6).”). For example, Symbology alleges that “[the 

Asserted Patents] provide improvements to conventional hardware and software systems and 

methods.” (Compl., ¶¶ 27.) This is not a factual allegation—it is a legal conclusion by which 

Symbology attempts to unilaterally declare its patent is directed to eligible subject matter. See 

Simio, 983 F.3d at 1366 (“A statement that a feature ‘improves the functioning and operations of 

the computer’ is, by itself, conclusory.”). The Court should disregard these statements. 

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Once Symbology’s conclusory legal allegations about the inventiveness of its asserted 

patent are properly disregarded, there is nothing left to preclude a determination of ineligibility on 

the pleadings. Accordingly, KDP’s motion is ripe, and it should be granted. 

VII. CONCLUSION 

For the foregoing reasons, KDP respectfully requests that the Court dismiss Symbology’s 

Complaint for failure to state a claim upon which relief can be granted. Because leave to amend 

would be futile, KDP requests dismissal with prejudice. 

 

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Dated: June 26, 2023 Respectfully submitted, 

/s/ Neil J. McNabnay 

Neil J. McNabnay 

Texas Bar No.24002583 

Ricardo J. Bonilla 

Texas Bar No. 24082704 

Rodeen Talebi 

Texas Bar No. 24103958 

Sarika Patel 

Texas Bar No.24073520 

mcnabnay@fr.com 

rbonilla@fr.com 

talebi@fr.com 

patel@fr.com 

FISH & RICHARDSON P.C. 

1717 Main Street, Suite 5000 

Dallas, Texas 19001 

(214) 747-5070 (Telephone) 

(214) 747-2091 (Facsimile) 

ATTORNEYS FOR DEFENDANT 

KEURIG DR PEPPER, INC.

 

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CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy has been electronically filed using the CM/ECF 

filing system on June 26, 2023, which automatically sends email notifications to all counsel of 

record and which will permit viewing and downloading of same from the CM/ECF system. 

 /s/ Neil J. McNabnay 

 Neil J. McNabnay 

Case 2:23-cv-00249-JRG Document 6 Filed 06/26/23 Page 26 of 26 PageID #: 187