Facebook has turned to familiar counsel to defend a high-profile patent attack by BlackBerry Ltd.
Cooley partners Heidi Keefe, Mark Weinstein and Michael Rhodes say that four of the nine BlackBerry patents, asserted in March against Facebook messaging and notification technology, are eligible for patent protection under Section 101. The same triumvirate has represented Facebook in virtually all of its patent litigation.
The patents are directed at “ancient concepts—who gets a message, how it is sent and the manner of notification,” states Facebook’s motion to dismiss, filed Friday and signed by Keefe. “They take abstract concepts and apply them ‘on a computer.’ This is not enough to be patent-eligible.”
The 31-page motion includes visual aids, a staple of Keefe’s advocacy, including stock photos of an information kiosk at a shopping center and a stack of “while you were out” message pads.
BlackBerry is represented by Quinn Emanuel Urquhart & Sullivan. The former mobile phone maker still holds a trove patents. Its 117-page complaint dismisses Facebook and subsidiaries What’sApp and Instagram as “relative latecomers to the mobile messaging world” who’ve chosen to “co-opt BlackBerry’s innovations.”
The four patents at issue describe targeted push notifications that are triggered by an event such as time or user location. They also describe systems for displaying the number of notifications a user has received and allowing a user to stop certain notifications while receiving others.
BlackBerry notes that Facebook paid $19 billion for WhatsApp and seeks to enjoin Facebook from “making, using, selling and offering for sale the Facebook, Facebook Messenger, Facebook Messenger Lite, Facebook Workplace Chat, Facebook Pages Manager, WhatsApp Messenger and Instagram applications and websites.”
Facebook’s motion to dismiss is premised on the Supreme Court’s Alice decision, which has been used to defeat numerous software technology patent suits at an early stage. But the U.S. Court of Appeals for the Federal Circuit recently held that Alice motions can involve fact issues that must be decided by juries. BlackBerry’s complaint includes detailed allegations that its inventions are not “well-understood, routine or conventional.”
Facebook dismisses those allegation as conclusory attorney argument and notes that the Federal Circuit has made clear that some Section 101 motions can still be decided on the pleadings.
Plus, Keefe writes, BlackBerry itself made the same kinds of arguments against patent eligibility when faced with similar lawsuits. “Appending generic devices to otherwise abstract ideas is not a magic bullet” against Section 101, the company argued in a motion filed earlier this year.
Keefe and Facebook are declining to challenge five other patents asserted by Blackberry at this early stage, including one on message encryption and another on battery preservation. But, she wrote, those patents, too, claim ineligible subject matter, and Facebook will address their “numerous validity issues … at the appropriate stage.”