Paul Hastings partner Yar Chaikovsky. (Photo: Jason Doiy/The Recorder)

A Los Angeles federal judge is poised to take a big bite out of BlackBerry Ltd.'s patent infringement suits against Facebook Inc. and Snap Inc.

In a tentative summary judgment order issued Thursday, U.S. District Judge George Wu of the Central District of California ruled that two mobile messaging patents BlackBerry is asserting against both companies are ineligible for protection under Section 101 of the Patent Act. Wu concluded that the two patents, which BlackBerry says represent improved methods for deploying targeted advertising, are merely "dressing up the abstract concept of collecting and compiling information."

Snap, Snapchat's parent company, also persuaded Wu to knock out two additional patents asserted only against Snap, on locating nearby "action spots" where other mobile device users are gathering. That would leave only two patents in BlackBerry's case against Snap, with one of them already on life support after Snap previously invalidated all of the independent claims.

Facebook would still have to contend with several BlackBerry patents, including two on user interfaces that passed muster with Wu in his tentative ruling. Separately, Facebook and Snap are also challenging the validity of BlackBerry's patents at the U.S. Patent and Trademark Office.

Snap is represented by a Paul Hastings team led by partner Yar Chaikovsky. A Cooley team featuring partner Heidi Keefe represents Facebook. The parties argued their motions to Wu on Thursday.

BlackBerry, which is backed by Quinn Emanuel Urquhart & Sullivan, rolled out a 117-page patent infringement complaint against Facebook in March 2018, then brought a similar action against Snap the following month. BlackBerry describes the social media companies as latecomers to mobile messaging who co-opted BlackBerry's pioneering work in the area.

BlackBerry's 8,296,351 and 8,676,929 patents describe push notification systems that receive information from a user and then use it to improve the delivery of targeted advertising. Blackberry argued in its summary judgment opposition that the system "does not simply compile, or even filter, information, but instead intelligently organizes each piece of information into a 'channel,' based on a predefined 'category' and stores it in a memory location associated with that channel or category."

Wu wrote in his tentative order that BlackBerry's patent doesn't explain how the information is intelligently channeled. Even if it did, "the court has some concerns about the ability to evade a Section 101 determination simply be adding the word 'intelligent' to the concept of organization," Wu wrote. "Presumably, humans have been 'intelligently organizing' and selecting data for just as long as they have been unintelligently organizing and selecting it."

BlackBerry did better with two user interface patents it's asserting against Facebook. Although he described it as a "close call," Wu concluded that BlackBerry's 9,349,120 patent describes improved technology for managing the receipt and display of incoming messages. Facebook had argued that it's simply the online equivalent of the age-old practice of a secretary holding a boss' incoming messages. Wu rejected the analogy.

Wu also upheld a BlackBerry patent on a user interface for selecting photo tags, rejecting Facebook's analogy to using sticky notes to annotate photographs. "Although Facebook Defendants offer up colorful analogies, they seem largely hindsight-driven," Wu wrote.

Facebook might have better luck at the PTO's Patent Trial and Appeal Board. At Facebook and Cooley's behest, the PTAB launched an administrative review of the UI patents this summer.

Wu liked Snap's analogies on the "action spot" patents better. Chaikovsky has argued for Snap that determining where users are gathering is little different from news reporters observing traffic patterns or military generals studying nearby troop formations. Wu had rejected those analogies previously, but that was before claim construction this spring. "By their very constructions, the 'action spots' and 'activity levels' at their core simply relate back to locations of events where activities are occurring and 'levels' of those activities," Wu wrote. "The terms are not limited to particular types of graphic icons, color heat indicators, or other specific embodiment that might go above and beyond the abstract idea itself."

Wu's order, if it stands, will benefit Twitter as well. BlackBerry brought a similar suit against Twitter in April. It included the two targeted advertising patents that were tentatively invalidated, and the notification user interface that was not. Facebook and Cooley brought a separate patent infringement suit against BlackBerry and Quinn Emanuel last September in the Northern District of California. U.S. District Judge Jeffrey White has scheduled a claim construction hearing in November.