Match Group, LLC v. Bumble Trading Inc.

Western District of Texas, txwd-6:2018-cv-00080

RESPONSE to Defendant's Notice of Supplemental Authority and Notice of Supplemental Materials to {{34}} Notice (Other), by Match Group, LLC.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION MATCH GROUP, LLC § § § Plaintiff, § § No. 6:18-cv-00080-ADA-JCM v. § § BUMBLE TRADING INC. § JURY TRIAL DEMANDED § Defendant. § § § PLAINTIFF MATCH GROUP, LLC'S RESPONSE TO DEFENDANT'S NOTICE OF SUPPLEMENTAL AUTHORITY AND NOTICE OF SUPPLEMENTAL MATERIALS I. RESPONSE TO BUMBLE'S NOTICE. On November 8, 2018, Bumble Trading, Inc. ("Bumble") filed a notice of supplemental authority purportedly relating to the Court's questions at the November 5, 2018 hearing. None of the cases support any of Bumble's arguments. First, none of Bumble's cases persuasively support the notion that a court can ignore concrete computer-benefit allegations in a pleading simply because they are not independently spelled out in the specification. In two of Bumble's cases, the courts relied on specifications that expressly contradicted the allegations that certain material was allegedly inventive. In the third, both the complaint and the specification lacked any indication of inventiveness. And the final case—the only one that provides any support for Bumble's position—was not necessary to the Court's conclusion, is inconsistent with subsequent guidance from the Federal Circuit, and (perhaps unsurprisingly) is currently pending appeal. In In re TLI Communications Patent Litigation, 823 F.3d 607, 613-615 (Fed. Cir. 2017), the Federal Circuit looked to the specification to support its ineligibility holding, but it did so because the specification expressly admitted that allegedly inventive concepts were well- understood. Id. ("[H]ere we need to only look to the specification, which describes the telephone unit and server as either performing basic computer functions. . . or performing functions 'known' in the art." (emphasis added)). In Talent Broker Technologies LLC v., 2018 WL 3019641, at *7-9 (C.D. Cal. May 22, 2018), the district court looked to the specification and found that it admitted that the claims were directed to an abstraction of a particular "voting cycle," rather than a computer- based improvement. While the court ultimately rejected the patentee's allegations related to computer-based improvements, it did so not because they were not expressly identified in the specification but because the alleged benefits arose from "inherent benefits of a client-server network model," which the patentee did not invent, and due to a lack of any allegations showing that the claims were intended to "increase the efficiency of network traffic." Id. at *8-9. In TriPlay, Inc. v. WhatsApp, Inc., 2018 WL 1479027 (D. Del. Mar. 27, 2018), the court rejected an allegation concerning an inventive concept precisely because "the [complaint] and the specification are silent as to any problems that were still be encountered" by prior systems. Id. at *8. In CellSpin, Inc. v. Fitbit, Inc., 316 F. Supp. 3d 1136, 1153-54 (N.D. Cal. 2018), the district court did decline to credit allegations about computer-based improvements in part because those benefits were omitted the specification.1 However, the district court's support for 1 The court also faulted the plaintiff for failing to "explain how such benefits otherwise 'flow from' the patent" and not identifying "specific improvements" to computer functionality. CellSpin, 316 F. Supp. 3d at 1150, 1154. Moreover, the claims—which related to the idea of 2 this principle conflated precedent concerning admissions of non-inventiveness with the impact of purported omissions from the specification. See id (citing TLI Commc'ns, 823 F.3d at 612). In any event, CellSpin is currently pending on appeal. And at the time of decision, the court did not have Judge Moore's guidance on denial from rehearing en banc—joined by four other Federal Circuit justices—that the Court can refuse to credit concrete allegations based on the specification only when the specification expressly contradicts the allegations. Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354, 1356 (Fed. Cir. 2018) ("Relying on the specification alone may be appropriate where, as in Mayo, the specification admits as much." (emphasis in original)). In fact, none of the cases Bumble cites occurred subsequent to Judge Moore's directly applicable reasoning. In any event, the prosecution history—which highlights that all claims are directed to new continuation-in-part material related to the innovative way of navigation claimed— independently corroborates Match's allegations at both Step 1 and Step 2. Dkt. No. 30 at 3-4; 11-12. Further, unlike in CellSpin, publications have lauded the computer-based improvements claimed in the '811 and '023 patents. See Data Engine Techs. LLC v. Google LLC, 906 F.3d 999, 1004 (Fed. Cir. 2018). In addition, Apple v. Ameranth case, 842 F.3d 1229, 1240-41 (Fed. Cir. 2016), does not support Bumble's argument that Bumble can discharge its burden of proof to show subject matter ineligibility by clear and convincing evidence even where it significantly changes its proposed abstract idea—from "looking through a stack of dating match profile cards one at a time and expressing interest in a match by moving a card to the right" to "sorting"—at the time using a Bluetooth connection to upload data to a website—admitted that Bluetooth connections to transmit data preexisted the inventions. Id. at 1150 n.10. Thus, using Bluetooth connections to upload data to websites utilized admittedly routine and conventional technology. 3 of oral argument. Ameranth holds only that the fact finder could slightly revise its description of the "idea" of the claims between a decision to institute and a final written decision where the revision "did not impact the analysis." Id. at 1240. Here, it is not debatable that Bumble's significant shift in identification of the alleged idea of the claims would impact the analysis. See BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1291 (Fed. Cir. 2018) (reiterating that Step 2 analysis depends on idea identified at Step 1). This highlights the fact that Bumble has not and cannot meet its burden of proof. II. NOTICE OF SUPPLEMENTAL MATERIALS At the oral hearing, counsel for Match Group relied on certain Internet articles to support its argument that the claims of the '811 and '023 Patents are subject matter eligible. Match's counsel highlighted that those articles are not part of Match's live pleading in this case but are part of the live pleading in a related case in the Northern District of Texas. The three articles mentioned are attached as Exhibits A-C. For the Court's convenience, Match is also attaching its First Amended Counterclaims from the Northern District of Texas as Exhibit D. The relevant portions related to the subject matter eligibility issue are located at ¶¶ 50-68 and 103-119. As mentioned at the hearing, Match is seeking to transfer those proceedings to this Court. DATED: November 9, 2018 Respectfully submitted, CALDWELL CASSADY & CURRY /s/ Bradley W. Caldwell Bradley W. Caldwell Texas State Bar No. 24040630 Email: John F. Summers Texas State Bar No. 24079417 Email: 4 Warren J. McCarty, III Texas State Bar No. 24107857 Email: CALDWELL CASSADY CURRY P.C. 2101 Cedar Springs Road, Suite 1000 Dallas, Texas 75201 Telephone: (214) 888-4848 Facsimile: (214) 888-4849 John P. Palmer State Bar. 15430600 Email: Naman, Howell, Smith & Lee, PLLC 400 Austin Avenue, 8th Floor P.O. Box 1470 Waco, TX 76701 Telephone: (254) 755-4100 Facsimile: (254) 754-6331 ATTORNEYS FOR PLAINTIFF MATCH GROUP, LLC CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel registered as Filing Users on this 9th day of November, 2018. /s/ Bradley W. Caldwell Bradley W. Caldwell 5