NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MOVE, INC., NATIONAL ASSOCIATION OF
REALTORS, NATIONAL ASSOCIATION OF HOME
BUILDERS,
Plaintiffs/Counterclaim Defendants-Appellees
RE/MAX INTERNATIONAL, INC., ADVANCED
ACCESS, NORCAL GOLD, INC., DBA RE/MAX
GOLD, INC., BRAD KORB, ENEIGHBORHOODS,
LLC, CHRISTY MORRISON, ORANGE COUNTY
MULTIPLE LISTING SERVICE, INC., DBA
SOUTHERN CALIFORNIA MLS, METROPOLITAN
MULTI-LIST, INC., DBA GEORGIA MLS, INC.,
METROLIST SERVICES, INC., DELAWARE
VALLEY REAL ESTATE INFORMATION
NETWORK, INC., DBA TREND, RAPATTONI
CORPORATION, BIRDVIEW.COM, INC., DBA
BIRDVIEW TECHNOLOGIES, DELTA MEDIA
GROUP, INC., PULTE HOMES, INC., THE RYLAND
GROUP, INC., SHEA HOMES, TAYLOR MORRISON,
INC., FKA TAYLOR WOODROW, INC.,
Counterclaim Defendants-Appellees
KELLER WILLIAMS REALTY, INC., FRANK
HOWARD ALLEN REALTORS, ALAIN PINEL
REALTORS, INC., PAYMON GHAFOURI,
NATIONAL ASSOCIATION OF NEW HOME
BUILDERS, AVALONBAY COMMUNITIES, INC.,
ESSEX PROPERTY TRUST INC., BRE
PROPERTIES, INC., RIVERSTONE RESIDENTIAL
GROUP, LLC, FIRST AMERICAN CORPORATION,
2 MOVE, INC. v. REAL ESTATE ALLIANCE
FIDELITY NATIONAL REAL ESTATE SOLUTIONS,
LLC, IHOMEFINDER, INC., CIS DATA SYSTEMS,
INC., DIVERSE SOLUTIONS, LLC, WANISOFT
CORPORATION,
Counterclaim Defendants
v.
REAL ESTATE ALLIANCE LTD.,
Defendant/Counterclaimant-Appellant
EQUIAS TECHNOLOGY DEVELOPMENT LLC,
Defendant/Counterclaimant
______________________
2017-1463
______________________
Appeal from the United States District Court for the
Central District of California in Nos. 2:07-cv-02185-GHK-
AJW, 2:08-cv-01657-GHK-AJW, Judge George H. King.
______________________
Decided: February 1, 2018
______________________
ROBIN L. MCGRATH, Duane Morris LLP, Atlanta, GA,
argued for plaintiffs/counterclaim defendants-appellees.
Also represented by WESLEY ACHEY, FRANK G. SMITH, III,
Alston & Bird LLP, Atlanta, GA.
HENRIK D. PARKER, Baker & Hostetler LLP, Philadel-
phia, PA, argued for all counterclaim defendants-
appellees. Counterclaim defendants-appellees RE/MAX
International, Inc., Advanced Access, Brad Korb, eNeigh-
borhoods, LLC, Christy Morrison, Orange County Multi-
ple Listing Service, Inc. also represented by STEVEN J.
ROCCI.
MOVE, INC. v. REAL ESTATE ALLIANCE 3
LAWRENCE HUSICK, Lipton, Weinberger & Husick,
Southeastern, PA, argued for defendant/counterclaimant-
appellant.
JEFFREY B. BOVE, Ratner Prestia, Wilmington, DE, for
counterclaim defendants-appellees Norcal Gold, Inc.,
Metropolitan Multi-List, Inc., Metrolist Services, Inc.,
Delaware Valley Real Estate Information Network, Inc.,
Rapattoni Corporation, Birdview.com, Inc., Delta Media
Group, Inc.
DARIUS C. GAMBINO, DLA Piper US LLP, Philadelph-
ia, PA, for counterclaim defendants-appellees Pulte
Homes, Inc., The Ryland Group, Inc., Shea Homes, Taylor
Morrison, Inc.
______________________
Before LOURIE, WALLACH, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
This appeal marks the fourth installment in a dec-
ades-long litigation saga between the parties. Real Estate
Alliance Ltd. (“REAL”), owner of U.S. Patent Nos.
5,032,989 and 4,870,576, appeals the district court’s
summary judgment holding the ’989 patent invalid for
claiming ineligible subject matter and summary judgment
holding that REAL waived its claims of divided infringe-
ment for the ’989 patent. REAL also challenges the
district court’s judgment invalidating the ’576 patent
based on the district court’s analysis of the ’989 patent
and the parties’ representations in a Joint Status Report.
Because we agree that the ’989 patent claims ineligible
subject matter, we need not decide whether REAL waived
its claims of divided infringement. We also detect no
error in the district court’s invalidation of the ’576 patent.
Accordingly, we affirm.
4 MOVE, INC. v. REAL ESTATE ALLIANCE
BACKGROUND
The ’989 patent is a continuation-in-part of the ’576
patent 1 and relates generally to a method of searching for
real estate properties geographically on a computer.
According to the ’989 patent, a user begins the search by
identifying a geographic region of interest for acquiring
property and then selecting an inner area within this
geographic region by “designat[ing] boundaries on a map
displayed on [the] screen.” ’989 patent, Abstract. The
selected area is then “zoomed in on and a second area is
selected within the zoomed region.” Id. The zoom feature
permits users to “change the world coordinate display”
such that the “size of the viewport remains constant” and
the “display now appears to have zoomed down closer to
earth.” Id. at col. 2 ll. 1–4, col. 9 ll. 52–57. The resulting
“[m]ap boundary lines are displayed with greater detail,”
i.e., not just as a magnified view of the original map. Id.
at col. 2 ll. 4–10. The selected area “is then cross-
referenced with the database of available properties
whose approximate locations are then pictorially dis-
played on screen.” Id., Abstract.
Claim 1 of the ’989 patent recites this improvement:
1. A method using a computer for locating
available real estate properties comprising the
steps of:
a) creating a database of the available real es-
tate properties;
b) displaying a map of a desired geographic
area;
c) selecting a first area having boundaries
within the geographic area;
1 Both the ’989 and ’576 patents were filed in the
1980s and have since expired.
MOVE, INC. v. REAL ESTATE ALLIANCE 5
d) zooming in on the first area of the displayed
map to about the boundaries of the first area to
display a higher level of detail than the displayed
map;
e) displaying the zoomed first area;
f) selecting a second area having boundaries
within the zoomed first area;
g) displaying the second area and a plurality
of points within the second area, each point repre-
senting the appropriate geographic location of an
available real estate property; and
h) identifying available real estate properties
within the database which are located within the
second area.
Id. at col. 15 l. 33 – col. 16 l. 3.
Before we address the issues in the current appeal, a
brief overview of the litigation history is needed. This
action commenced in 2007 when Move, Inc. filed suit
against REAL in the U.S. District Court for the Central
District of California seeking a declaratory judgment that
the ’989 and ’576 patents were invalid and not infringed
by Move’s websites. REAL subsequently sued the Na-
tional Association of Realtors (“NAR”), the National
Association of Home Builders (“NAHB”), and a number of
real estate brokers, agents, multiple listing services, home
builders, and rental property owners and managers for
infringing the ’989 and ’576 patents. REAL’s complaint
asserted infringement by the Move websites and by each
defendant’s own website.
The district court entered a case management order
dividing the litigation into two phases. Phase 1 of the
litigation would resolve REAL’s infringement claims
against Move, NAR, and NAHB regarding Move’s web-
sites, as well as any issues relating to the validity or
6 MOVE, INC. v. REAL ESTATE ALLIANCE
enforceability of the ’989 and ’576 patents. Phase 2 would
address REAL’s infringement claims against the remain-
ing defendants (“the Secondary Defendants”) based on
their individual websites, i.e., non-Move websites, and
any liability issues if the Move websites were found to
infringe in Phase 1. REAL’s claims against the Secondary
Defendants were stayed during Phase 1, and the Second-
ary Defendants agreed to be bound by any validity, en-
forceability, or claim construction determinations made in
Phase 1, as well as any finding that a Move website
infringed the ’989 or ’576 patents. The district court then
consolidated the two cases into a single docket.
Phase 1 of the litigation proceeded as contemplated by
the case management order. The district court issued a
claim construction order in 2009 addressing claim con-
struction disputes in both patents. Based on the district
court’s constructions, REAL stipulated to noninfringe-
ment of both patents and appealed. Its appeal, however,
only addressed the ’989 patent. Because the district court
erred in construing the claims of the ’989 patent, we
vacated and remanded for further proceedings consistent
with our opinion. See Move, Inc. v. Real Estate All. Ltd.,
413 F. App’x 280, 282 (Fed. Cir. 2011). On remand, Move
sought summary judgment of noninfringement of the ’989
patent. The district court granted Move’s motion in a
2012 opinion because it concluded that Move was not
liable for direct or joint infringement of the ’989 patent.
REAL appealed and the case was twice remanded to the
district court given changes in the law of divided in-
fringement.
This brings us to the subject of REAL’s current ap-
peal. On remand, Move sought summary judgment that
REAL waived its divided infringement claims. Based on
REAL’s previous litigation positions in this case, the
district court granted Move’s motion. See Move, Inc. v.
Real Estate All. Ltd., No. CV 07-2185, 2016 WL 9080238,
at *2–4 (C.D. Cal. Apr. 25, 2016).
MOVE, INC. v. REAL ESTATE ALLIANCE 7
In a subsequent motion, Move sought summary judg-
ment that the ’989 patent was invalid under 35 U.S.C.
§ 101. The district court granted this motion as well.
Move, Inc. v. Real Estate All. Ltd., 221 F. Supp. 3d 1149
(C.D. Cal. 2016) (“Eligibility SJ Op.”) (citing Alice Corp.
Pty. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014)). Under
Alice step one, the court held that the claims of the ’989
patent were directed to the abstract idea of “collecting and
organizing information about available real estate proper-
ties and displaying this information on a digital map that
can be manipulated by the user.” Id. at 1162. The dis-
trict court determined under Alice step two that the
claims lacked an inventive concept because nothing in the
claim limitations or their ordered combination trans-
formed the abstract idea into a patent-eligible application.
Id. at 1164–65.
REAL appeals. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(1).
DISCUSSION
We apply the law of the regional circuit when review-
ing a district court’s grant of summary judgment. See
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138,
1146 (Fed. Cir. 2016). Summary judgment in the Ninth
Circuit is appropriate when, after drawing all reasonable
inferences in favor of the non-moving party, there re-
mains no genuine issue of material fact precluding the
grant of summary judgment. See Comite de Jornaleros de
Redondo Beach v. City of Redondo Beach, 657 F.3d 936,
942 (9th Cir. 2011).
I.
Patent eligibility under § 101 is a question of law and
may involve underlying questions of fact. See Mortg.
Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d
1314, 1325 (Fed. Cir. 2016). We review the district court’s
ultimate conclusion on eligibility de novo. See Intellectual
8 MOVE, INC. v. REAL ESTATE ALLIANCE
Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332,
1338 (Fed. Cir. 2017). We look to the test articulated in
Alice to determine whether a claim is eligible for patent-
ing under § 101. See 134 S. Ct. at 2355. Pursuant to
Alice’s two-part test, we decide first “whether the claims
at issue are directed to” a patent-ineligible concept, name-
ly a law of nature, natural phenomenon, or abstract idea.
Id. at 2354–55. If the answer is yes, we then consider the
claim elements, both individually and as an ordered
combination, to determine whether they contain an “in-
ventive concept” sufficient to “‘transform the nature of the
claim’ into a patent-eligible application.” Id. at 2355
(quoting Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66, 72–73, 78 (2012)).
A.
Under Alice step one, we agree with the district court
that claim 1 of the ’989 patent 2 is directed to the abstract
idea of “a method for collecting and organizing infor-
mation about available real estate properties and display-
ing this information on a digital map that can be
manipulated by the user.” Eligibility SJ Op.,
221 F. Supp. 3d at 1162. The step-one analysis requires
us to consider the claims “in their entirety to ascertain
whether their character as a whole is directed to excluded
subject matter.” Internet Patents Corp. v. Active Network,
Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015). Claim 1 is
aspirational in nature and devoid of any implementation
details or technical description that would permit us to
conclude that the claim as a whole is directed to some-
thing other than the abstract idea identified by the dis-
trict court.
2 REAL does not argue the patentability of the de-
pendent claims separately. Accordingly, we treat claim 1,
the only independent claim, as representative for purpos-
es of this appeal.
MOVE, INC. v. REAL ESTATE ALLIANCE 9
While we do not suggest that every claim involving
the collection, organization, manipulation, or display of
data is necessarily directed to an abstract idea, claim 1 is
not meaningfully distinct from claims we have held were
directed to abstract ideas in previous cases. The claims in
Electric Power Group, LLC v. Alstom S.A., for example,
recited a method for detecting events on an interconnect-
ed electric power grid by collecting information from
various sources, analyzing this information to detect
events in real time, and displaying the event analysis
results and diagnoses. 830 F.3d 1350, 1351–52 (Fed. Cir.
2016). We concluded that the focus of these claims was on
the abstract idea of “collecting information, analyzing it,
and displaying certain results of the collection and analy-
sis.” Id. at 1353. Claim 1 of the ’989 patent involves the
same general steps of collecting, organizing, and present-
ing information.
We reached a similar result in Intellectual Ventures I
LLC, where the claims recited systems and methods for
preserving compatibility between XML documents after
they had been edited by different users. 850 F.3d at
1339–40. According to the claims at issue in that case, a
“dynamic document” containing data extracted from the
original XML document would be created, users could edit
the data displayed in the dynamic document, and the
changes would then be “dynamically propagated” back
into the original XML document. Id. at 1339. We con-
cluded that these claims were, “at their core, directed to
the abstract idea of collecting, displaying, and manipulat-
ing data.” Id. at 1341; see also Content Extraction &
Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n,
776 F.3d 1343, 1345, 1347 (Fed. Cir. 2014) (concluding
that claims covering a method for using a scanner to
extract data from hard copy documents, recognizing
specific information within the extracted data, and stor-
ing that information in memory were “drawn to the
abstract idea of 1) collecting data, 2) recognizing certain
10 MOVE, INC. v. REAL ESTATE ALLIANCE
data within the collected data set, and 3) storing that
recognized data in a memory”). Based on these binding
precedents, we conclude that claim 1 is directed to an
abstract idea.
Our conclusion on Alice step one is further supported
by the similarities between the ’989 patent claims and
other claims that “simply use computers to serve a con-
ventional business purpose.” Affinity Labs of Tex., LLC v.
DIRECTV, LLC, 838 F.3d 1253, 1261 (Fed. Cir. 2016); see
Alice, 134 S. Ct. at 2356 (concluding that concept of in-
termediated settlement was “a fundamental economic
practice long prevalent in our system of commerce” and
thus an abstract idea). In Affinity Labs, for example, the
claims covered a system for streaming regional broadcast
signals to cell phones located outside the region. Alt-
hough the claims required a network, storage medium,
and the transmission and receipt of signals, we concluded
that the claims were directed to the abstract idea of
“providing out-of-region access to regional broadcast
content.” Id. at 1258 (explaining that the claims were not
“directed to how to implement out-of-region broadcasting
on a cellular telephone” and claimed the function itself
instead of a particular way to perform the function).
Claim 1 of the ’989 patent is no different. It broadly
recites the commercial practice of “using a computer for
locating available real estate properties.” ’989 patent
col. 15 ll. 33–34; see id., Abstract (describing patent as “a
method for locating available real estate properties for
sale”). While the claim limitations provide steps for using
the computer to perform the search, they contain no
technical details or explanation of how to implement the
claimed abstract idea using the computer. Absent such a
disclosure, we cannot conclude that claim 1 covers any-
thing more than the use of a computer for a conventional
business purpose. See Affinity Labs, 838 F.3d at 1261.
MOVE, INC. v. REAL ESTATE ALLIANCE 11
REAL attempts to distinguish its claims from those in
Alice and its progeny by contending that the district court
over-generalized the claim limitations. REAL focuses on
two particular limitations as reciting technological ad-
vances: (1) creation of a database of the available real
estate properties; and (2) zooming in on a selected geo-
graphic area. For support, REAL relies on testimony from
its expert that databases at the time of the invention
could not be queried graphically and that zooming on a
computer-displayed map to depict a higher level of detail
was neither routine nor conventional. See Appellant Br.
11–12 (citing J.A. 233, ¶¶ 11–12).
Setting aside the conclusory nature of REAL’s expert
declaration, the focus of claim 1 is not on any technologi-
cal advancement but rather on the performance of an
abstract idea “for which computers are invoked merely as
a tool.” See Enfish, LLC v. Microsoft Corp., 822 F.3d
1327, 1336 (Fed. Cir. 2016). Instead of focusing on the
technical implementation details of the zooming function-
ality, for example, claim 1 recites nothing more than the
result of the zoom. Such claims are drawn to an abstract
idea because they “claim[] the function of [the abstract
idea], not a particular way of performing that function.”
Affinity Labs, 838 F.3d at 1258 (“There is nothing in claim
1 that is directed to how to implement [the abstract idea].
Rather, the claim is drawn to the idea itself.”).
Claim 1 is also distinguishable from the patent-
eligible claims in cases such as Enfish and Visual Memory
LLC v. NVIDIA Corp., 867 F.3d 1253 (Fed. Cir. 2017). In
those cases, the claims focused “on an improvement to
computer functionality itself, not on economic or other
tasks for which a computer is used in its ordinary capaci-
ty.” Enfish, 822 F.3d at 1336 (concluding claims were
directed to a specific, improved type of self-referential
table for storing tabular data); see Visual Memory,
867 F.3d at 1259 (determining claims were directed to
improved computer memory system with programmable
12 MOVE, INC. v. REAL ESTATE ALLIANCE
operational characteristics). We also emphasized the
specifications’ disclosures regarding the improvements in
computer functionality brought about by the claimed
inventions. See Enfish, 822 F.3d 1333 (recognizing the
claimed invention’s enhanced flexibility in configuring the
database, streamlined indexing technique, and more
effective data storage); Visual Memory, 867 F.3d at 1259
(acknowledging that the claimed programmable opera-
tional characteristic enabled a memory system to be
interoperable with multiple different processors and could
outperform prior art memory systems with larger caches).
The same cannot be said here. Claim 1 focuses not on
a technological improvement, but rather on a method of
searching for real estate using a computer. See ’989
patent col. 15 l. 35 – col. 16 l. 3 (reciting steps of creating
a property database, displaying a geographic region on a
map, iterative zooming to focus on a desired geographic
region, and identifying properties within the database
that fall within the selected geographic region). While the
ideas of storing available real estate properties in a
database and selecting and displaying a particular geo-
graphic area may well be improvements in the identifica-
tion of available real estate properties, there is no
evidence that these ideas are technological improvements.
Indeed, REAL has not cited any convincing evidence in
the specification that the claimed invention improves the
functioning of the computer itself.
B.
Under the second step of the Alice analysis, we exam-
ine the claim limitations “more microscopically,” Electric
Power, 830 F.3d at 1354, to determine whether they
contain “additional features” constituting an “inventive
concept,” Alice, 134 S. Ct. at 2357. “This requires more
than simply stating an abstract idea while adding the
words ‘apply it’ or ‘apply it with a computer.’” Versata
MOVE, INC. v. REAL ESTATE ALLIANCE 13
Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1332 (Fed.
Cir. 2015) (quoting Alice, 134 S. Ct. at 2358).
Our analysis uncovers no inventive concept in the in-
dividual claim limitations or their ordered combination.
Claim 1 recites only generic computer components and
features: a “computer” and the creation of a “database.”
’989 patent col. 15 ll. 33–37. But claims directed to an
abstract idea that “merely require generic computer
implementation[] fail to transform that abstract idea into
a patent-eligible invention.” Alice, 134 S. Ct. at 2357.
The specification confirms this conclusion by explaining
that “the present invention may be implemented on an
IBM or compatible personal computer system.” ’989
patent col. 15 ll. 12–14.
REAL’s counterargument that the claimed zoom fea-
ture supplies the inventive concept is not persuasive for
reasons similar to those we articulated under Alice step
one. 3 For support, REAL again relies on its expert’s
conclusory declaration:
It was considered neither routine nor conven-
tional in the mid-1980s for a computer-displayed
map to be able to zoom to display a higher level of
detail in the sense of displaying information that
wasn’t present at the lower level of detail at all,
and this zooming step cannot be performed by a
human.
3 REAL also contends that the “nature of the data-
base” and “display of appropriate property locations on
the map” provide the “something more,” but it never
develops these arguments. Appellant Br. 17. REAL
analogizes its claimed database to Enfish’s data tables
without any supporting analysis and fails to explain how
the display of appropriate property locations is an in-
ventive concept. Neither argument is compelling.
14 MOVE, INC. v. REAL ESTATE ALLIANCE
J.A. 233, ¶ 12. The declaration provides no citations to
support this assertion and contains no additional ra-
tionale.
This bald assertion does not satisfy the inventive con-
cept requirement. Where “[t]he claim language does not
provide any specific showing of what is inventive about
the [limitation in question] or about the technology used
to generate and process it,” we have concluded that the
claims do not satisfy Alice’s second step. Secured Mail
Sols. LLC v. Universal Wilde, Inc., 873 F.3d 905, 912
(Fed. Cir. 2017); see also Affinity Labs, 838 F.3d at 1263
(concluding that claims were ineligible under Alice step
two where the allegedly inventive concept was not the
“essential advance,” was only described functionally, and
where there was “no further specification of a particular
technology for” accomplishing the allegedly inventive
concept). Further, the claim language does not explain
what is inventive about the zoom feature or explain how it
is accomplished. REAL also has not pointed us to any
portion of the specification that fills this gap. Indeed, the
specification’s teaching that the invention can be per-
formed using a generic “IBM or compatible personal
computer system,” ’989 patent col. 15 ll. 12–14, and the
failure to provide any implementation details for the zoom
feature suggests that the zoom feature utilizes only
existing computer capabilities. This leads us to conclude
that the claimed zoom feature is nothing more than an
instruction to apply an abstract idea using a computer.
See Versata, 793 F.3d at 1332; see also Alice, 134 S. Ct. at
2358 (“[I]f a patent’s recitation of a computer amounts to
a mere instruction to ‘implemen[t]’ an abstract idea ‘on
. . . a computer,’ that addition cannot impart patent
eligibility.” (quoting Mayo, 566 U.S. at 84) (internal
citations omitted)).
Our conclusion regarding the ’989 patent’s eligibility
renders moot the issue of divided infringement because a
party cannot be liable for infringing an invalid patent.
MOVE, INC. v. REAL ESTATE ALLIANCE 15
See Commil USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920,
1929 (2015).
II.
REAL also alleges that the district court erred by in-
validating the ’576 patent sua sponte without giving the
parties notice or a reasonable time to respond. Our
review of the record reveals instead that REAL expressly
conceded the invalidity of the ’576 patent. We see no
error by the district court under these unique circum-
stances.
At the conclusion of its summary judgment opinion
invalidating the ’989 patent under § 101, the district court
issued an order, questioning the validity of the related
’576 patent and soliciting input from all parties in Phase 1
and Phase 2 of the litigation:
While the parties have not squarely addressed the
question whether the ’576 Patent is invalid under
35 U.S.C. § 101, it appears—though we do not de-
cide—that our ruling with respect to the ’989 Pa-
tent may invalidate the ’576 Patent as well.
Accordingly, all parties—including those identi-
fied as Secondary Defendants in our September
25, 2015 Case Management Order (Doc. 125)—
SHALL file a joint status report within fourteen
days hereof, stating their views on whether this
order effectively resolves this action as to all par-
ties and whether judgment should be entered ac-
cordingly.
Eligibility SJ Op., 221 F. Supp. 3d at 1174 (italic empha-
ses added). The district court’s order placed the ’576
patent’s validity at issue and required the parties to
identify any outstanding issues in the litigation.
In response, all the parties to the litigation, including
the Secondary Defendants, filed a Joint Status Report.
The parties’ Joint Status Report indicated that the dis-
16 MOVE, INC. v. REAL ESTATE ALLIANCE
trict court’s eligibility and waiver opinions resolved all
issues in the case with respect to all parties:
[T]he Parties are all in agreement that the Court’s
Order [invalidating the ’989 patent], in addition to
its Order of April 25, 2016 holding that REAL has
waived its right to proceed on a theory of divided
direct infringement under § 271(a), effectively re-
solves all issues to this action, including all issues
related to REAL’s claims against the Secondary
Defendants. . . . Accordingly, the Parties jointly
request that the Court enter Judgment of Non-
Infringement and Invalidity in favor of Plaintiffs
Move, Inc., National Association of Realtors, Na-
tional Association of Homebuilders, and all Sec-
ondary Defendants.
J.A. 930 (emphases added). Relying on the parties’ repre-
sentation that its orders had “resolve[d] all issues in this
case,” the district court “adjudged that Plaintiffs and
Secondary Defendants are entitled to judgment that the
’576 Patent and the ’989 Patent are invalid and not in-
fringed.” J.A. 2.
The only fair reading of the Joint Status Report is
that no issues remained in the case. The district court
made its view clear: the ruling invalidating the ’989
patent “appear[ed]” to invalidate the ’576 patent and
might have resolved the litigation in its entirety. Eligibil-
ity SJ Op., 221 F. Supp. 3d at 1174. When asked to
respond, REAL not only declined to make any arguments
to support the validity of the ’576 patent, but went even
further by agreeing that the district court’s rulings had
resolved “all issues,” including those “relat[ing] to REAL’s
claims against the Secondary Defendants.” J.A. 930.
Thus, REAL conceded the invalidity of the ’576 patent.
REAL’s attempt to rationalize its concession lacks
merit. According to REAL, the phrase “this action” in the
district court’s directive to identify “whether this order
MOVE, INC. v. REAL ESTATE ALLIANCE 17
effectively resolves this action as to all parties,” Eligibility
SJ Op., 221 F. Supp. 3d at 1174, only referred to Phase 1
of the litigation, not Phase 2. Therefore, REAL claims, its
allegations of infringement of the ’576 patent against the
Secondary Defendants in Phase 2 of the litigation were
not affected by the Joint Status Report.
We disagree. As an initial matter, the district court
consolidated the cases giving rise to Phase 1 and Phase 2
of the litigation, meaning both phases were part of the
same case or “action.” By referring to “this action,” the
district court was referring to both Phase 1 and Phase 2.
The district court’s directive also sought input from the
Secondary Defendants—parties who were not litigating
the issues in Phase 1—which should have served as
another indicator that the parties needed to identify any
outstanding issues in either phase of the litigation. The
validity of the ’576 patent was one potential issue that
remained in both phases, yet REAL never raised it. When
read in context, we do not agree with REAL that the
district court’s directive seeking input from the parties in
both phases regarding a patent that was at issue in both
phases nonetheless referred only to Phase 1. Therefore,
we conclude that REAL has conceded the invalidity of the
’576 patent.
CONCLUSION
We have considered REAL’s remaining arguments
and find them unpersuasive. The district court did not
err in holding the claims of the ’989 patent ineligible
under § 101. Because there can be no liability for infring-
ing an invalid patent, we do not reach the issue of waiver
for REAL’s divided infringement claims. We also detect
no error in the district court’s judgment invalidating the
’576 patent. We affirm.
18 MOVE, INC. v. REAL ESTATE ALLIANCE
AFFIRMED
COSTS
Costs to Appellees.