Argument Preview

One of the four cases being argued next week that attracted an amicus brief is, Inc. v. Twitter, Inc., which focuses on patent eligibility. Specifically, this case raises the question of whether a patent claiming a method for “automatically routing telephone calls and other communications in a multinetwork environment using a physical controller” covers abstract ideas not eligible for patenting. This is our argument preview.

It its opening brief, (“Voip”) makes a simple argument, that the claims at issue “satisfy the two-step test for patent eligibility under [35 U.S.C.] § 101 set forth by the Supreme Court in Alice and Mayo.” Naturally, Voip begins its argument with the first step of the Alice/Mayo test. Voip argues that “the character of the claims must be identified ‘as a whole’” and not on “an unduly ‘high level of abstraction . . . untethered from the language of the claims.” Voip argues that, as a whole, the claims at issue cover a specific process for telephone, messaging, and other communication forms that “yield a tangible result.” Thus, Voip argues that “the claims are not directed to a mere idea, having no particular concrete or tangible form.”

Voip argues that the Federal Circuit’s analysis should end after step one of the Alice/Mayo test, but nonetheless provides an alternative argument for step two. Voip argues that a patent claim satisfies step two if “it improves an existing technological process.” Voip asserts that the claims at issue have made such an improvement. Voip explains that the claims at issue enable a computer to “reliably and transparently route a phone call and other messages to physical gateways, nodes and destination addresses in a multi-layer network,” something that it alleges could not previously be done.

Finally, Voip argues that the district court found that the claims at issue were directed towards an abstract idea “only after departing from the Alice/Mayo test and applying a §101 test of its own devising.” Voip closes its argument with the ominous warning that adopting the district court’s analysis “would endanger not just patents relating to communication routing, but all software patents.”

Twitter, in its response brief, also makes arguments that track the two-part Alice/Mayo test. It argues, for example, that the district court applied the “established two-step eligibility framework to the representative claims.” In particular, it argues that the district court properly concluded that the claims are “directed to the abstract idea of routing a call based on characteristics of the parties” and lack “an inventive concept that is significantly more than that abstract idea.”

Beginning with step one of the Alice/Mayo test, Twitter argues that the claim elements are “generalized steps with generic functions” directed towards an abstract idea. Twitter points to Federal Circuit precedent stating that “limiting information collection and analysis to particular content or a particular source does not make the process any less abstract.”

In its argument for step two of the Alice/Mayo test, Twitter maintains that the information in the claims is merely conventional. Specifically, Twitter asserts that “nothing in the claims adds an inventive concept that is significantly more than the abstract idea of call routing based on information about callers and callees.” Even further, Twitter argues that the claims require “nothing more than a conventional computer operating according to its ordinary function.” Thus, Twitter argues, Voip has not added an inventive concept to an abstract idea.

In its reply brief, Voip makes two arguments. First, Voip argues that a claim is not an “unpatentable abstract idea if it ‘improve[s] an existing technological process.’” It maintains that the claimed invention “is fundamentally different from prior-art methods of routing phone calls.” Thus, Voip argues that it has improved on an existing technological process. Its second argument is that, under step two of the Alice/Mayo test, the claims at issue are eligible for patenting because they claim an inventive “ordered combination.”

In addition to each side’s comprehensive briefs, this case has also attracted an amicus brief. Specifically, Raymond A. Mercado, RPost Holdings Incorporated, RPost Communications Limited, and RMail Limited submitted an amicus brief to the court in support of Voip. They argue that, in step two of the Alice/Mayo test, “factual allegations” that the claims at issue contain “inventive concepts” cannot be refuted by “a cursory glance at the claims” during the pleadings stage.

We will keep track of this case and report on any developments.