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Petitioner, V No. 17- IN THE Supreme Court of the United States FRONT ROW TECHNOLOGIES, LLC, Petitioner, v. MLB ADVANCED MEDIA, L.P., NBA MEDIA VENTURES, MERCURY RADIO ARTS, INC. DBA THE GLENN BECK PROGRAM, INC., GBTV, LLC, PREMIERE RADIO NETWORKS INC., TURNER SPORTS INTERACTIVE, INC., TURNER DIGITAL BASKETBALL SERVICES, INC., Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES CouRT OF AppEALS FOR THE FEDERAL CIRcuIT PETITION FOR A WRIT OF CERTIORARI MICHAEL W. SHORE Counsel of Record RUssELL J. DEPALMA SHORE CHAN DEPUmpO LLP 901 Main Street, Suite 3300 Dallas, Texas 75202 (214) 593-9110 [email protected] Counsel for Petitioner 278890 A (800) 274-3321 • (800) 359-6859 i QUESTIONS PRESENTED This Petition presents the following questions: 1. What are the rules, both procedural and substantive, for assessing patent-eligible subject matter under 35 U.S.C. § 101 for patents claiming inventions described as new and useful combinations of existing components and technologies? 2. Should the Federal Circuit be required to revisit its decision in this case in light of its Berkheimer and Aatrix Software decisions? ii CORPORATE DISCLOSURE STATEMENT There is no parent or publicly held company that owns 10% or more of the stock of Front Row Technologies, LLC. iii PARTIES TO THIS ACTION All parties to this action are identified in the caption on the cover of this petition. iv TABLE OF CONTENTS Page QUESTIONS PRESENTED ......................i CORPORATE DISCLOSURE STATEMENT ...... ii PARTIES TO THIS ACTION.....................iii TABLE OF CONTENTS.........................iv TABLE OF APPENDICES ......................vi TABLE OF CITED AUTHORITIES ............. vii OPINIONS BELOW..............................1 JURISDICTION .................................1 STATUTORY PROVISIONS INVOLVED ...........2 STATEMENT OF THE CASE ....................2 REASONS FOR GRANTING THE PETITION......8 A. The Patent Eligibility of New and Useful Combinations of Existing Technologies Must Be Preserved .........................8 B. The Patentable Subject Matter Inquiry Must Not Be Collapsed Into Other Inquiries, Particularly At The Pleadings Stage With No Factual Development .........14 v Table of Contents Page C. More Rigorous And Robust Analysis Should Be Required For Claims That Are Indisputably Not Directed To The Types Of General Concepts Or Human Behavior Previously Found To Be Abstract Ideas ......16 CONCLUSION .................................20 vi TABLE OF APPENDICES Page A PPENDIx A — JUDGMENT of the UNITED STATES COURT of APPEALS FOR the FEDERAL CIRCUIT, FILED SEPTEMBER 18, 2017 ..................1 APPENDIx B — MEMORANDUM OPINION AND ORDER of the UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO, FILED AUGUST 31, 2016.......3a APPENDIx C — STIPULATION TO DISMISS WITHOUT PREJUDICE of THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO, FILED AUGUST 31, 2016 ............6a APPENDIX D — MEMORANDUM OPINION AND ORDER of the UNITED STATES DISTRICT COURT for the DISTRICT of NEW MEXICO, FILED AUGUST 30, 2016 ............................13a APPENDIx E — opinion of the UNITED STATES COURT OF appeals FOR the federal circuit, filed NOVEMBER 21, 2017 .......................232a vii TABLE OF CITED AUTHORITIES Page Cases Aatrix Software, Inc. v. Green Shades Software, Inc., No. 2017-1452, 2018 WL 843288 (Fed. Cir. Feb. 14, 2018)...................passim Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014).....................passim Berkheimer v. HP Inc., No. 2017-1437, 2018 WL 774096 (Fed. Cir. Feb. 8, 2018) ...................passim Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448 (Fed. Cir. 1998) ..................10 DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014) ...................8 Enfish LLC v. Microsoft Corp., 822 F.3d 1237 (Fed. Cir. 2016) ..................17 Immunocept, LLC v. Fulbright & Jaworski, LLP, 504 F.3d 1281 (Fed. Cir. 2007) ...................9 KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007) .........................8, 12 viii Cited Authorities Page McRO, Inc. v. Bandai Namco Games Am., Inc., 837 F.3d 1299 (Fed. Cir. 2016) .........11, 14, 15, 17 O’Reilly v. Morse, 56 U.S. (15 How.) 62 (1854) .....................12 Parks v. Booth, 102 U.S. 96 (1880).............................12 Rapid Litigation Mgt. Ltd. v. CellzDirect, Inc., 827 F.3d 1042 (Fed. Cir. 2016)...................13 SRI Int’l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107 (Fed. Cir. 1985) ..................15 Thales Visionix Inc. v. U.S., 850 F.3d 1343 (Fed. Cir. 2017) .............passim Trading Tech. Int’l, Inc. v. CQG, Inc., 675 F. App’x 1001 (Fed. Cir. 2017) .......9, 14, 15, 17 STATUTES and OTHER AUTHORITIES 28 U.S.C. § 1254..................................1 28 U.S.C. § 1295..................................1 35 U.S.C. § 101 .............................passim 35 U.S.C. § 102 ...............................15, 16 ix Cited Authorities Page 35 U.S.C. § 103 ...............................15, 16 35 U.S.C. § 112 ............................14, 15, 16 Dennis Crouch, Patent Eligibility: Underlying Questions of Fact, PATENTLY O, Feb. 8, 2018 .......5 Dennis L. Crouch, Wrongly Affirmed Without Opinion, Univ. of Mo. School of Law, Legal Studies Res. Paper Series No. 2017-02 ...........10 FED. CIR. L. R. 36 ..........................passim FED. R. CIV. P. 12 ............................6, 8, 16 Matthew B. Hershkowitz¸ Patently Insane for Patents: A Judge-by-Judge Analysis of the Federal Circuits Post-Alice Patentable Subject Matter Eligibility of Abstract Ideas Jurisprudence, 28 FORDHAM INTELL. PROP. MEdiA & ENT. L. J. 109 (2017) . 2 U.S. Chamber International IP Index...............7 1 Front Row Technologies, LLC respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Federal Circuit in this case. OPINIONS BELOW The Federal Circuit did not issue an opinion in Petitioner’s appeal from the decision of the United States District Court for the District of New Mexico. Instead, the Federal Circuit issued a ruling under its Local Rule 36 affirming the district court’s dismissal of Front Row’s lawsuit. See App1a-2a. The Federal Circuit denied rehearing and/or en banc rehearing on November 21, 2017. App232a-233a. The district court’s opinion is available as follows: Front Row Techs., LLC v. NBA Media Ventures, LLC, 204 F. Supp. 3d 1190 (D.N.M. 2016); App12a-231a. JURISDICTION The Federal Circuit denied Petitioner’s motion for rehearing en banc on January 13, 2017. App232a-233a. The Court has jurisdiction under 28 U.S.C. § 1254(1). The Federal Circuit’s decision arose from a final judgment in a patent lawsuit filed in the District of New Mexico. The Federal Circuit had jurisdiction under 28 U.S.C. § 1295(a)(1). 2 STATUTORY PROVISIONS INVOLVED The statutory provision involved is 35 U.S.C. § 101. It is sufficiently short that the section is reproduced below. 35 U.S.C. § 101 reads: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. STATEMENT OF THE CASE This case presents the Court with the opportunity to provide a much-needed concrete set of rules for determining patent eligibility for inventions that purport to be new and useful combinations of existing components and technologies. Currently, there are no consistent rules for district courts to follow. Outcomes in the Federal Circuit have become panel-dependent; it is not a court where litigants can anticipate how a 35 U.S.C. § 101 issue will be decided.1 The five patents at issue in this lawsuit unquestionably solve a technological problem, namely the wireless streaming of audio/video signals and data from multiple 1. See Matthew B. Hershkowitz¸ Patently Insane for Patents: A Judge-by-Judge Analysis of the Federal Circuits Post-Alice Patentable Subject Matter Eligibility of Abstract Ideas Jurisprudence, 28 FORDHAM INTELL. PROP. MEdiA & ENT. L. J. 109, 133-162 (2017) (discussing methodologies of 11 Federal Circuit judges in determining patent eligibility issues). 3 sources within a venue over a digital network to only authenticated handheld devices capable of two-way communication. The inventions allow each user of the handheld device to independently select and view the signal from a particular source in real time. See Supplemental Appendix (“SA”) at SA23, SA59, SA95, SA131, SA168. The prior art included handheld devices that could only receive and display a video signal, but the signals were analog, not digital, and only one signal was viewable, the one chosen for transmission by the broadcaster. See e.g., SA94. The components of the claimed systems and methods were known individually, but there is no evidence in the record that they were combined in the manner claimed by the patents-at-issue prior to the respective priority dates. Moreover, the district court itself repeatedly found that the inventions of the patents-at-issue are unlike those this Court or the Federal Circuit has previously found to constitute mere abstract ideas, and acknowledged a split in district court decisions analyzing inventions the district court incorrectly found comparable without the aid of any expert testimony. App200a (“Front Row’s claims do not fall squarely within any existing cases’ facts”); App214a. The district court concluded, based on a mere three claims it chose (over Petitioner’s objection) as representative of the five patents, that none of the
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