896 F.3d 1335 (Fed. Cir. 2018), 2016-2502, Interval Licensing LLC v. AOL, Inc.

Docket Nº:2016-2502, 2016-2505, 2016-2506, 2016-2507
Citation:896 F.3d 1335, 127 U.S.P.Q.2d 1553
Opinion Judge:Chen, Circuit Judge.
Party Name:INTERVAL LICENSING LLC, Plaintiff-Appellant v. AOL, INC., Apple, Inc., Google LLC, Yahoo!, Inc., Defendants-Appellees
Attorney:Michael F. Heim, Heim, Payne & Chorush, LLP, Houston, TX, argued for plaintiff-appellant. Also represented by Robert Allan Bullwinkel, Douglas R. Wilson; Justin Adatto Nelson, Max Lalon Tribble, Jr., Susman Godfrey LLP, Houston, TX. Daryl Joseffer, King & Spalding LLP, Washington, DC, argued for ...
Judge Panel:Before Taranto, Plager, and Chen, Circuit Judges. Opinion concurring-in-part, dissenting-in-part filed by Circuit Judge Plager. Plager, Circuit Judge, concurring-in-part and dissenting-in-part.
Case Date:July 20, 2018
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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896 F.3d 1335 (Fed. Cir. 2018)

127 U.S.P.Q.2d 1553

INTERVAL LICENSING LLC, Plaintiff-Appellant

v.

AOL, INC., Apple, Inc., Google LLC, Yahoo!, Inc., Defendants-Appellees

Nos. 2016-2502, 2016-2505, 2016-2506, 2016-2507

United States Court of Appeals, Federal Circuit

July 20, 2018

Page 1336

[Copyrighted Material Omitted]

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Appeals from the United States District Court for the Western District of Washington in Nos. 2:13-cv-00263-MJP, 2:13-cv-00264-MJP, 2:13-cv-00265-MJP, 2:13-cv-00266-MJP, Judge Marsha J. Pechman, Senior Judge Barbara Jacobs Rothstein.

Michael F. Heim, Heim, Payne & Chorush, LLP, Houston, TX, argued for plaintiff-appellant. Also represented by Robert Allan Bullwinkel, Douglas R. Wilson; Justin Adatto Nelson, Max Lalon Tribble, Jr., Susman Godfrey LLP, Houston, TX.

Daryl Joseffer, King & Spalding LLP, Washington, DC, argued for all defendants-appellees. Defendant-appellee Google LLC also represented by Amelia Grace Yowell.

J. Michael Jakes, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, for defendant-appellee AOL, Inc. Also represented by Robert L. Burns, II, Reston, VA; Cortney Scott Alexander, Kent & Risley, LLC, Alpharetta, GA.

David Alberti, Feinberg Day Alberti & Thompson LLP, Menlo Park, CA, for defendant-appellee Apple, Inc. Also represented by Marc Belloli.

Deanne Maynard, Morrison & Foerster LLP, Washington, DC, for defendant-appellee Yahoo!, Inc. Also represented by Matthew Ian Kreeger, San Francisco, CA.

Before Taranto, Plager, and Chen, Circuit Judges.

OPINION

Opinion concurring-in-part, dissenting-in-part filed by Circuit Judge Plager.

Chen, Circuit Judge.

In our previous decision in Interval Licensing LLC v. AOL, Inc., we upheld the district court’s judgment invalidating claims 1-4 and 7-15 of U.S. Patent No. 6,788,314, and claims 4-8, 11, 34, and 35 of

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U.S. Patent No. 6,034,652 on indefiniteness grounds. 766 F.3d 1364, 1366 (Fed. Cir. 2014). As to four other asserted claims of the ’652 patent, claims 15-18, we vacated the judgment of non-infringement and remanded for further proceedings because the non-infringement judgment had been premised on an incorrect construction of the claim term "attention manager." Claims 15-18 now return to us from the Western District of Washington after a determination that they fail to recite patent-eligible subject matter under 35 U.S.C. § 101. See Interval Licensing LLC v. AOL, Inc., 193 F.Supp.3d 1184, 1190 (W.D. Wash. 2016).

We affirm. Claims 15-18 are directed to an abstract idea: the presentation of two sets of information, in a non-overlapping way, on a display screen. The claimed "attention manager," broadly construed as any "system" for producing that result, is not limited to a means of locating space on the screen unused by a first set of displayed information and then displaying the second set of information in that space. The claim limitations for accessing, scheduling, and then displaying the second information set are conventional functions stated in general terms and do not further define how the attention manager segregates the display of two sets of data on a display screen. Considered as a whole, the claims fail under § 101’s abstract idea exception because they lack any arguable technical advance over conventional computer and network technology for performing the recited functions of acquiring and displaying information.

BACKGROUND

A. The ’652 Patent

The ’652 patent describes and claims the operation of an "attention manager [that] makes use of ‘unused capacity’ " of a display device, by displaying content in that unused capacity. ’652 patent col. 2 ll. 7-8. Generally, the attention manager can use a display device’s "unused capacity" in two different situations: (1) it displays content when the display device is turned on but the user is not actively engaged with the display device; and (2) it displays content in an area of the display screen not used by already-displayed content with which the user is actively engaged. Id. col. 2 ll. 7-19. While the specification labels the first situation as the "screen saver embodiment" and the second situation as the "wallpaper embodiment," we explained in our previous Interval Licensing opinion that, for the "wallpaper embodiment," neither the claims nor the specification contemplates integrating the content-to-be-displayed into the background display of the screen, as is the case with traditional computer screen wallpaper. See Interval Licensing, 766 F.3d at 1375. Rather, the ’652 patent describes simply displaying content in the "space in the display not used by the user’s primary interaction." Id. (citing ’652 patent col. 3 ll. 25-31, col. 6 ll. 45-51). This broader understanding of the wallpaper embodiment— the display of a second set of data in an area that does not overlap with an already-displayed first set of data— is what Interval itself advanced in the prior appeal. See

id.

Consistent with that understanding of the disclosed wallpaper embodiment, we also construed "attention manager" as "a system that displays images to a user either when the user is not engaged in a primary interaction or in an area of the display screen that is not used by the user’s primary activity." 766 F.3d at 1376. The user’s "primary activity," which does not cover the entire area of the display screen (thereby creating "unused capacity"),

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can relate to "any of a number of application programs (e.g., word processing programs, computer games, spread-sheets, etc.)."1 ’652 patent col. 6 ll. 30-32; col. 8 ll. 23-28. Our function-based construction of "attention manager" of displaying two sets of data in a non-overlapping way essentially adopted Interval’s proposed construction, except that we defined the area of the display screen for displaying the image as the display area "not used by the user’s primary activity," as opposed to Interval’s proposed "not substantially used by the user’s primary activity." Interval Licensing, 766 F.3d at 1375-76.

The specification explains that the operation of the attention manager relies on acquiring content from a content provider which is used to produce "images" that are then displayed on "unused capacity" of the display device. Id. col. 6 l. 45-col. 7 l. 7. "Image" is defined broadly to include any "visual imagery (e.g., moving or still pictures, text, or numerical information)," and "audio imagery (i.e., sounds)." Id. col. 6 ll. 62-64. Furthermore, "[t]he kinds of content data that can be used with the attention manager are virtually limitless." Id. col. 7 ll. 26-35 (listing examples, such as advertisements, nature scenes, family pictures, stock ticker information, and news summaries). In similarly broad fashion, "display device" refers to "any device that presents sensory stimulus" which includes "computer video display devices, televisions and audio speakers." Id. col. 6 ll. 11-14.

According to the specification, the attention manager coordinates the display of this acquired content through a set of instructions that enable, inter alia, the following: (i) acquiring content from a content-providing information source, (ii) controlling the timing of the display of the acquired content, (iii) displaying the content, and (iv) acquiring an updated version of the previously-acquired content whenever the information source updates its content. Id. col. 4 ll. 26-59.

Representative claim 18 is directed to the implementation of an attention manager through the use of these instructions to acquire and then display content on the unused capacity of a display:

18. A computer readable medium, for use by a content display system, encoded with one or more computer programs for enabling acquisition of a set of content data and display of an image or images generated from the set of content data on a display device during operation of an attention manager, comprising:

[1] acquisition instructions for enabling acquisition of a set of content data from a specified information source;

[2] user interface installation instructions for enabling provision of a user interface that allows a person to request the set of content data from the specified information source;

[3] content data scheduling instructions for providing temporal constraints on the display of the image or images generated from the set of content data;

[4] display instructions for enabling display of the image or images generated from the set of content data;

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[5] content data update instructions for enabling acquisition of an updated set of content data from an information source that corresponds to a previously acquired set of content data;

[6] operating instructions for beginning, managing and terminating the display on the display device of an image generated from a set of content data;

[7] content display system scheduling instructions for scheduling the display of the image or images on the display device;

[8] installation instructions for installing the operating instructions and content display system scheduling instructions on the content display system; and

[9] audit instructions for monitoring usage of the content display system to selectively display an image or images generated from a set of content data.

Id. col. 33 l. 15-col. 34 l. 24 (emphasis and numbering added). Although claim 18 recites several instructions limitations, these "generic sets of instructions," id. col. 16 l. 8, relate to one of two functions: (i) enabling the acquisition of content to be displayed; and (ii) enabling control over when to display the acquired content, for how long, and then displaying it.2 See id. col. 4 l. 26-col. 5 l. 10; col. 16 ll. 1-16 (content acquisition instructions...

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