NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
INTELLECTUAL VENTURES I LLC,
INTELLECTUAL VENTURES II LLC,
Plaintiffs-Appellants
v.
SYMANTEC CORP., VERITAS TECHNOLOGIES
LLC,
Defendants-Cross-Appellants
______________________
2017-1814, 2017-1858
______________________
Appeals from the United States District Court for the
District of Delaware in No. 1:13-cv-00440-LPS, Chief
Judge Leonard P. Stark.
______________________
Decided: March 15, 2018
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JOHN PIERRE LAHAD, Susman Godfrey LLP, Houston,
TX, argued for plaintiffs-appellants. Also represented by
RICHARD W. HESS; PARKER C. FOLSE, III, DANIEL J. SHIH,
Seattle, WA.
GABRIEL BELL, Latham & Watkins LLP, Washington,
DC, argued for defendants-cross-appellants. Also repre-
2 INTELLECTUAL VENTURES I LLC v. SYMANTEC CORP.
sented by ROBERT J. GAJARSA; LISA K. NGUYEN, Menlo
Park, CA.
______________________
Before O’MALLEY, SCHALL, and WALLACH, Circuit Judges.
O’MALLEY, Circuit Judge.
Intellectual Ventures I LLC and Intellectual Ventures
II LLC (together, “IV”) appeal from (1) the district court’s
grant of summary judgment of patent ineligibility under
35 U.S.C § 101 of claims 25 and 33 of U.S. Patent No.
5,537,533 (“the ’533 patent”); (2) the district court’s grant
of summary judgment of noninfringement of claims 25
and 33 of the ’533 patent; (3) the district court’s construc-
tion of “local persistent storage device” and “remote
persistent storage device” in U.S. Patent No. 6,598,131
(“the ’131 patent”), as the construction of these terms
underlies the parties’ stipulated judgment of nonin-
fringement of the ’131 patent; and (4) the district court’s
grant of Appellees Symantec Corporation and Veritas
Technologies LLC’s (together, “Symantec”) motion to
strike IV’s amended infringement contentions for the ’131
patent, because the doctrine of equivalents could not
apply to the “persistent storage device” terms as the
district court construed them. Symantec cross-appeals,
conditionally, the district court’s determination that the
“substantially concurrent copy of data” limitation in the
’533 patent and the “performed substantially concurrent-
ly” limitation in the ’131 patent are not indefinite. See
Intellectual Ventures I LLC v. Symantec Corp., No. 13-cv-
440, 2016 WL 948879 (D. Del. Mar. 10, 2016) (Claim
Construction Order); Intellectual Ventures I LLC v. Sy-
mantec Corp., 234 F. Supp. 3d 601 (D. Del. 2017) (Sum-
mary Judgment Order).
After fully reviewing and considering the patents at
issue and the parties’ arguments, we conclude the district
court did not err in finding claims 25 and 33 of the ’533
INTELLECTUAL VENTURES I LLC v. SYMANTEC CORP. 3
patent ineligible under 35 U.S.C. § 101. The district court
correctly found that the claims were directed to the ab-
stract idea of backing up data, and that the claim limita-
tions lacked an inventive concept as they invoke
conventional computer components that do not function in
combination in an inventive manner. Summary Judg-
ment Order, at 607–09 (citing ’533 patent, col. 5, ll. 28–29,
id. col. 5, ll. 34–35, id. col. 6, ll. 60–61, id. col. 11, ll. 12–
13). 1
The district court also did not err in granting sum-
mary judgment of noninfringement as to claims 25 and 33
1 Our recent decision in Berkheimer v. HP Inc., 881
F.3d 1360 (Fed. Cir. 2018) does not compel a different
conclusion. IV filed a notice of supplemental authority
arguing that Berkheimer compels reversal and remand of
the district court’s judgment because “there is a genuine
issue of material fact as to whether the ’533 claims im-
prove remote data mirroring in ‘an inventive manner’ or
perform ‘well-understood, routine, and conventional
activities to a skilled artisan.’” Citation of Suppl. Author-
ity at 2, Intellectual Ventures I LLC v. Symantec Corp.,
No. 17-1814 (Fed. Cir. Mar. 1, 2018), ECF No. 79 (quoting
Berkheimer, 881 F.3d at 1370). But, as the district court
explained in detail, “the claims invoke conventional
computer components that do not supply an inventive
concept,” and “[t]he specification confirms that the indi-
vidual components . . . are conventional, generic, and
operate as expected.” Summary Judgment Order, at 608
(citations omitted). Moreover, the district court found
that IV failed to offer evidence to show that the order of
the steps was unconventional. Id. IV also acknowledged
at oral argument that it did not offer expert testimony to
show the lack of conventionality of its components. Oral
Argument at 23:26–45, http://oralarguments.cafc.
uscourts.gov/default.aspx?fl=2017-1814.mp3.
4 INTELLECTUAL VENTURES I LLC v. SYMANTEC CORP.
of the ’533 patent. IV advocated for the construction of
“substantially concurrent” copy of data the district court
adopted, which imputes a causal limitation to distinguish
between delays designed into the system and delays for
processing the data being copied. Claim Construction
Order, at *4. Under this construction, we agree with the
district court that no reasonable juror could find that the
accused VVR product copies a “substantially concurrent”
copy of data to a data transfer unit from the primary
network server, as the write to the SRL and the write to
the remote servers are separated by a step deliberately
designed into the process. Summary Judgment Order, at
610. 2
The district court also did not err in its construction of
“local persistent storage device” and “remote persistent
storage device located remotely from the device” in the
’131 patent. Claim Construction Order, at *5–6. These
constructions are drawn directly from the specification of
the ’131 patent, which provides that a “persistent storage
device” is defined as “a physical device that is physically
attached to a computer using a standard physical inter-
face” and “contains a . . . permanent medium.” ’131
patent, col. 1, ll. 40–55. The specification also explains
that “[t]he data image stored on the [remote persistent
storage device] is referred to as the ‘master data image’
and the data image cached on the [local persistent storage
2 As we affirm the district court’s grant of summary
judgment of noninfringement as to the ’533 patent and
the challenged claim constructions in the ’131 patent, we
need not reach Symantec’s alternative argument that the
judgment of noninfringement can be affirmed by adopting
its construction of “data transfer unit,” which requires
that the data transfer unit be physically separate from
the primary and remote network servers.
INTELLECTUAL VENTURES I LLC v. SYMANTEC CORP. 5
device] is referred to as the ‘local data image’ or ‘cached
data image.’” Id. col. 3, ll. 54–57.
IV has not preserved an appeal of its motion to strike
its amended infringement contentions. The parties
stipulated to noninfringement of “the ’131 patent, either
literally or under the Doctrine of Equivalents, under the
Court’s construction of ‘local persistent storage device’
and ‘remote persistent storage device.’” J.A. 3112. The
only conditional aspect of this stipulated judgment is the
construction of the “local persistent storage device” and
“remote persistent storage device” terms. As we affirm
these constructions, we may not reach IV’s challenge to
the district court’s grant of the motion to strike. 3
We have considered IV’s other arguments and find
them without merit. For the foregoing reasons, and for
those expressed in more detail in the district court’s
thorough and carefully considered orders, we affirm the
district court’s judgment.
AFFIRMED
COSTS
No costs.
3 Because we affirm the district court’s judgments
on summary judgment of noninfringement of the asserted
claims of the ’533 patent and the construction of the
persistent storage device terms that underlies the stipu-
lated judgment of noninfringement of the ’131 patent, we
also need not reach Symantec’s conditional cross-appeal
on indefiniteness.