EXHIBIT A 

Case 2:23-cv-00249-JRG Document 16-1 Filed 07/18/23 Page 1 of 4 PageID #: 762
Fish & Richardson P.C. 

1717 Main Street 

Suite 5000 

Dallas, TX 75201 

214 747 5070 main

214 747 2091 fax

Ricardo J. Bonilla 

Principal 

rbonilla@fr.com 

214 292 4012 direct

July 18, 2023 

VIA ECF 

The Honorable Chief Judge Rodney Gilstrap 

Sam B. Hall, Jr. Federal Building and U.S. Courthouse 

100 East Houston St 

Marshall, TX 75670

Re: Symbology Innovations, LLC v. Keurig Dr. Pepper, Inc. 

USDC–E.D. Tex.: Case No. 2:23-cv-00249-JRG 

 

Judge Gilstrap, 

Pursuant to the Court’s Standing Order Regarding Motions Under 35 U.S.C. § 101, the 

parties hereby submit their positions regarding their disagreement as to the necessity of claim 

construction to inform the Court’s analysis as to patentability. 

I. Keurig Dr. Pepper’s position 

This case is a candidate for dismissal at the pleading stage because it is apparent from the 

face of the patent that the asserted claims are directed to ineligible subject matter. See 

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

Such a case should be dismissed even before claim construction when there is no plausible 

construction that could confer eligibility. See Content Extraction and Transmission LLC v. Wells 

Fargo Bank, Nat. Ass’n, 776 F.3d 1343, 1349 (Fed. Cir. 2014) (citing id. at 714–15; Bancorp 

Servs. L.L.C v. Sun Life Assur. Co., 687 F.3d 1266, 1273–74). Defendant’s motion establishes that 

the asserted claims of the Patents-in-Suit are ineligible on their face, and there exists no plausible 

claim construction for any claim that would render the asserted claims eligible. 

Defendant has made a prima facie case for patent ineligibility, and the burden now shifts 

to Symbology to demonstrate a genuine claim construction dispute that could affect the outcome. 

See Jedi Techs., Inc. v. Spark Networks, Inc., No. CV 1:16-1055-GMS, 2017 WL 3315279, at *6 

(D. Del. Aug. 3, 2017) (finding claim construction was not necessary where the plaintiff failed to 

identify any specific claims which, if scrutinized during claim construction, would impact the § 

101 analysis, and granting motion to dismiss); see also e.g., Voxathon LLC v. Alpine Elecs. of Am., 

Inc., No. 2:15-cv-562-JRG, 2016 WL 260350 at *4 (E.D. Tex. Jan. 21, 2016) (Gilstrap, C.J.) 

(“Since the proving of a negative is historically disfavored, once Defendants make a prima facie 

showing that an inventive concept is absent, it falls upon Voxathon to show that there is, in fact, 

an inventive concept actually present.”). Symbology cannot do so, and therefore, this motion is 

ripe for consideration and should be granted. 

Case 2:23-cv-00249-JRG Document 16-1 Filed 07/18/23 Page 2 of 4 PageID #: 763
The Honorable Chief Judge Rodney Gilstrap

July 18, 2023

Page 2

Symbology has not made Defendants aware of any claim construction disputes that could 

affect the Court’s § 101 analysis. Consequently, the alleged need for claim construction does not 

preclude granting Defendant’s motion. 

II. Plaintiff Symbology’s Position – (Non-Moving Party)

Claim construction is required to understand the moving party’s position. After 

Symbology sent Defendant its disputed issues for claim construction, Defendant used a prior 

template and stated that “Symbology has not made Defendants aware of any claim construction 

disputes that could affect the Court’s § 101 analysis. Consequently, the alleged need for claim 

construction does not preclude granting Defendant’s motion.” This is simply not accurate as the 

correspondence establishes exchanged among the parties. 

Claim Construction Issues Required for the Section 101 Analysis to be Completed. 

A. The sequence (or order) of the elements occurring in the asserted patent claims is highly 

relevant and is different within just the presently disclosed asserted patent claims: 

a. Claim 1, ’773 patent; 

b. Claim 1, ’752 patent; 

c. Claim 1, ’369 patent; and 

d. Claim 1 of the ’190 patent. 

B. Claim Constructions Required for these Disputed Terms: 

a. ’773 patent, claim 1.

i. “decode string” 

ii. “symbology associated with an object” 

iii. “visual detection applications” 

b. ’752 patent, claim 1. 

i. “image capturing device” 

ii. “receiving information about the object from the remote server wherein 

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

iii. “a display device associated with the portable electronic device”

c. ’369 patent, claim 1 

i. “detecting symbology associated with the digital image using a portable 

electronic device” 

ii. “symbology” 

d. ’190 patent, claim 1 

i. “information about the digital image from the remote server wherein the 

information is based on the decode string” 

Case 2:23-cv-00249-JRG Document 16-1 Filed 07/18/23 Page 3 of 4 PageID #: 764
The Honorable Chief Judge Rodney Gilstrap

July 18, 2023

Page 3

Sincerely, 

Ricardo J. Bonilla 

Principal 

Counsel for Defendant 

cc: Counsel of record Via ECF 

Case 2:23-cv-00249-JRG Document 16-1 Filed 07/18/23 Page 4 of 4 PageID #: 765