Mobile Acuity Ltd. v. Blippar Ltd., Blippar Ar Ltd., Blippar Group Ltd., Blipbuilder Ltd., Blippar USA LLC

United States Court of Appeals
for the Federal Circuit
______________________
MOBILE ACUITY LTD.,
Plaintiff-Appellant
v.
BLIPPAR LTD., BLIPPAR AR LTD., BLIPPAR
GROUP LTD., BLIPBUILDER LTD., BLIPPAR USA
LLC,
Defendants-Appellees
07446749 LTD., FKA BLIPPAR.COM LTD, BLIPPAR
LLC,
Defendants
______________________
2022-2216
______________________
Appeal from the United States District Court for the
Central District of California in No. 2:21-cv-06926-GW-PD,
Judge George H. Wu.
______________________
Decided: August 6, 2024
______________________
G UY RUTTENBERG, Ruttenberg IP Law, PC, Los Ange-
les, CA, argued for plaintiff-appellant. Also represented by
BRUCE D ONOVAN K UYPER.
MARTIN BADER, Sheppard Mullin Richter & Hampton
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 2
LLP, San Diego, CA, argued for defendants-appellees. Also
represented by P AUL W. G ARRITY , New York, NY.
______________________
Before L OURIE, BRYSON, and STARK, Circuit Judges.
STARK, Circuit Judge.
Mobile Acuity Ltd. (“Mobile Acuity”) appeals from a
judgment entered by the United States District Court for
the Central District of California (“Central District”) dis-
missing its patent infringement action for failure to state a
claim on the basis that the asserted patents claim ineligible
subject matter under 35 U.S.C. § 101. We affirm.
I
Mobile Acuity owns U.S. Patent Nos. 10,445,618 (“’618
patent”) and 10,776,658 (“’658 patent”) (collectively, the
“Asserted Patents”). The Asserted Patents are both enti-
tled “Storing Information for Access Using a Captured Im-
age” and share a substantially identical specification. In
general, the patents disclose methods and devices relating
to “storing information so that it can be accessed using a
captured image.” ’618 patent at 1:15-17. In particular, the
Asserted Patents describe methods and devices that “asso-
ciate[] first information and at least a first portion of a first
image, and use[] a second image that includes a portion
corresponding to at least the first portion of the first image
to access the associated first information.” Id. Abstract.
According to the Asserted Patents, in the prior art the de-
sire to “attach information to locations in the real world”
was “achieved by using barcodes or RFID tags attached to
real world objects or by associating information with abso-
lute positions in the world.” Id. at 1:21-25.
The Asserted Patents purport to provide “an alterna-
tive mechanism by which information can be associated
with real world locations and objects,” involving an origi-
nating user using “a mobile imaging device . . . to capture
an image of a location,” and then “upload[ing] [the captured
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 3
image] . . . to the server.” Id. at 1:26-28, 4:28-29, 50-51.
The originating user defines a “target region” in the image,
which is “then processed at the server . . . to create a model
user image key for that location.” Id. at 4:54-56. The orig-
inating user also “defines digital content that is to be asso-
ciated with the target region of the captured image.” Id. at
4:56-58. The same originating user or a different user “can
subsequently obtain the digital content associated with a
location (if any) by capturing an image of the location, us-
ing their respective imaging device . . ., and by sending the
image to the server.” Id. at 4:62-66. The server then cre-
ates “a scene user image key for the image received” and
“then searches its database . . . to see if the scene user im-
age key corresponds to a model user image key stored in
the database.” Id. at 4:67-5:4. “[I]f there is correspondence,
the digital data linked by the database . . . to the corre-
sponding model user image key is obtained.” Id. at 5:4-6.
On August 27, 2021, Mobile Acuity filed a complaint in
the Central District, alleging several Blippar entities (col-
lectively, “Blippar”)1 directly and indirectly infringed “one
or more claims” of the ’618 and the ’658 patents. J.A. 103
¶ 70; J.A. 106 ¶ 90. On January 7, 2022, Blippar sent Mo-
bile Acuity a letter expressing its view that “all claims” of
the Asserted Patents were invalid under § 101. J.A. 696.
The district court then issued a scheduling order, under
which the parties were “free to amend pleadings under Fed.
R. Civ. P. 15 up to January 31, 2022.” J.A. 152. The dead-
line for amending pleadings without the need to seek leave
was later extended to April 4, 2022.
On February 14, 2022, Mobile Acuity filed a first
amended complaint, alleging Blippar directly and
1 The Blippar entities include Blippar Ltd., Blippar
AR Ltd., Blippar Group Ltd., BlipBuilder Ltd., Blippar
USA LLC, 07446749 Ltd. (f/k/a Blippar.com Ltd.), and
Blippar LLC.
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 4
indirectly infringed “at least claim 9” of the ’618 patent and
“one or more claims” of the ’658 patent. J.A. 171 ¶ 80; J.A.
175 ¶ 106. Mobile Acuity also added allegations relating to
the purported inventiveness of its technology, which it al-
leged “enables the use of the object or location itself as the
marker for image searching, providing a seamless user ex-
perience rather than relying on a conventional visible cue,”
“eliminates the need for the manufacturing step that adds
a visual cue,” and allows companies to “measure campaign
effectiveness and return-on-investment based on the object
itself.” J.A. 163-64 ¶¶ 26-28.
On February 28, 2022, Blippar filed a motion to dismiss
the first amended complaint under Federal Rule of Civil
Procedure 12(b)(6). As part of its motion, Blippar con-
tended that claim 9 of the ’618 patent and claim 9 of the
’658 patent “are representative of the entire claim set in
each respective Asserted Patent.” J.A. 194. The motions
went on to argue that “each of the Asserted Patents is in-
valid under 35 U.S.C. § 101.” J.A. 216. Rather than re-
spond to the motion to dismiss, Mobile Acuity filed a second
amended complaint, which is the operative complaint at is-
sue in this appeal.
In the second amended complaint, Mobile Acuity con-
tinued to allege that Blippar directly and indirectly in-
fringed “at least claim 9” of the ’618 patent and “one or
more claims” of the ’658 patent. J.A. 230 ¶ 83; J.A. 236
¶ 120. Mobile Acuity also specifically alleged infringement
of claims 11 and 16 of the ’618 patent and claims 9, 11, and
16 of the ’658 patent.2 See J.A. 234-35 ¶¶ 105, 106, 108;
2 In the second amended complaint, Mobile Acuity
referred to “the use of interest points in the manner speci-
fied in claim 11” of the ’658 patent. J.A. 240 ¶ 140. How-
ever, claim 11 of the ’658 patent does not recite any use of
interest points. Mobile Acuity also referred to “a server
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 5
J.A. 240 ¶¶ 139-42. Independent claim 9 of the ’618 patent
recites:
A method of storing user-defined information
for future access by multiple parties compris-
ing, at a server controlled by a third party:
receiving from a first originating party user-
defined information that is defined by the first
originating party and is for access by multiple
parties; and
associating the user-defined information re-
ceived from the first originating party and at
least a first portion of a first image in a data-
base, wherein the user-defined information
augments first user-defined information al-
ready associated at the server with at least
the first portion of the first image in the data-
base; and
providing access by a second party to the user-
defined information and the first user-defined
information, when a second image, captured
by the second party, includes a portion corre-
sponding to at least the first portion of the
first image.
that contains a processor, memory and computer program
code configured to infringe claim 16” of the ’658 patent. Id.
at ¶ 142. Claim 16 of the ’658 patent does not recite a
server, a processor, memory, or computer program code.
Mobile Acuity may have intended to allege infringement of
claims 14 and 19 of the ’658 patent, respectively. Even if
so, this would not affect our analysis or the outcome of the
appeal, because the limitations of claims 14 and 19 of the
’658 patent largely parallel those of claims 11 and 16 of the
’618 patent.
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 6
’618 patent at 13:58-14:7 (as corrected). Claim 11 of the
’618 patent depends from claim 9 and recites:
A method as claimed in claim 9, further com-
prising:
extracting interest points from the portion of
the second image;
extracting interest points from the first im-
age;
providing access by a second party to the user-
defined information, when the interest points
extracted from the portion of the second im-
age matches the interest points extracted
from the first image.
Id. at 14:14-21. Independent claim 16 of the ’618 patent
recites a server that contains a processor, memory, and
computer program code configured to perform the method
of claim 9:
A server for control by a third party compris-
ing:
a processor; and a memory including com-
puter program code,
wherein the memory, computer program code
and processor are configured:
to receive user-defined information from a
first user different to the third party for access
by multiple parties; and
to associate the received user-defined infor-
mation and at least a first portion of a first
image in a database, wherein the user-defined
information augments first user-defined in-
formation already associated at the server
with at least the first portion of the first image
in the database; and
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 7
to provide access by a remote second user to
the user-defined information and the first
user-defined information when a second im-
age, captured by the remote second user, in-
cludes a portion corresponding to at least the
first portion of the first image.
Id. at 14:43-60 (as corrected).
Independent claim 9 of the ’658 patent is substantially
identical to claim 9 of the ’618 patent, except for the last
(“providing access”) limitation:
A method comprising, at a server controlled
by a third party:
receiving from a first originating party user-
defined information that is defined by the first
originating party and is for access by multiple
parties; and
associating the user-defined information re-
ceived from the first originating party and at
least a first portion of a first image in a data-
base, wherein the user-defined information
augments first user-defined information al-
ready associated at the server with at least
the first portion of the first image in the data-
base; and
providing access by a second party to the user-
defined information and the first user-defined
information, in dependence upon the first por-
tion of the first image and a second image,
captured by the second party, and also a loca-
tion at which the second image is captured.
’658 patent at 13:66-14:14 (as corrected).
On March 28, 2022, Blippar filed a motion to dismiss
the second amended complaint pursuant to Rule 12(b)(6).
Blippar continued to argue, among other things, that claim
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 8
9 of the ’618 patent and claim 9 of the ’658 patent “are rep-
resentative of the entire claim set in each respective As-
serted Patent” and that “each of the Asserted Patents is
invalid under 35 U.S.C. § 101.” J.A. 258, 279.
Rather than amending its complaint a third time,
which Mobile Acuity could have done without leave of court
under the governing scheduling order until April 4, 2022,
Mobile Acuity filed an opposition to Blippar’s motion to dis-
miss. In it, Mobile Acuity stated that “[t]o the extent the
Court grants any aspect of Blippar’s motion, Plaintiff re-
spectfully requests an opportunity to cure any defects
through amendment.” J.A. 561. Mobile Acuity did not pro-
vide a proposed amended complaint with its opposition.
Prior to hearing argument on Blippar’s motion to dis-
miss, the district court issued a tentative ruling, which
later became its final order, indicating that the claims of
the Asserted Patents were directed to patent ineligible sub-
ject matter under § 101. The district court noted: “Plaintiff
alleges that Defendants infringe at least Claims 9, 11, and
16 of the ’618 Patent and Claims 9, 11, and 16 of the ’658
Patent.” J.A. 5. The court’s opinion and order went on to
address these six “Asserted Claims.”3
3 As we further explain, see infra III.B, because the
“Asserted Claims” are representative of all claims of the
’618 and ’658 patents, and because all claims of these two
patents were challenged in the motion to dismiss, see J.A.
279 (“each of the Asserted Patents is invalid under 35
U.S.C. § 101”), the district court’s order extended to all of
those claims. Mobile Acuity did not, at any point, narrow
the claims it was asserting. To the contrary, the operative
complaint maintained that Mobile Acuity might allege in-
fringement of potentially all claims of both patents, see J.A.
230 ¶ 83 (complaint alleging infringement of “at least claim
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 9
The trial court concluded that the “Asserted Claims are
directed to abstract ideas.” J.A. 7. It held that the “inde-
pendent claims of the Asserted Patents are directed to the
abstract idea of leaving information at a location or object
for one’s future use or reference,” id. (internal quotation
marks omitted), and, further, that the dependent claims
identified in the operative complaint “do not add enough to
transform the claims from abstract to concrete,” J.A. 9. The
court also determined that the Asserted Claims “do not re-
cite an inventive concept” because the “alleged inventive
concept and the described advancement over the prior art”
were nothing more than the abstract idea itself, and “the
remainder of Plaintiff’s inventive concept analysis focuses
on general descriptions in the specification and of the com-
mercial embodiments.” J.A. 10-11. The district court
added that Mobile Acuity failed to “refer the Court to any
limitations in the claims” that “would change the Court’s
analysis,” making the Asserted Claims “representative of
the claims of the Asserted Patents.” J.A. 11. The district
court concluded by stating it did not “at this point see a way
in which the Plaintiff could amend the complaint to avoid
9” of ’618 patent); J.A. 234 ¶ 105 (alleging “discovery will
confirm that Blippar also infringes other claims of the ’618
Patent”); J.A. 236 ¶ 120 (alleging infringement of “one or
more claims” of ’658 patent), and its opposition to the mo-
tion included argument about claims not expressly briefed
by Blippar, see, e.g., J.A. 546 (countering motion by discuss-
ing, among others, claim 14 of ’618 and ’658 patents, de-
spite not being expressly asserted as “Asserted Claim”),
553 (same). Under these circumstances, the district court
had jurisdiction over all claims of the two patents-in-suit,
as do we. Cf. Miller Mendel, Inc. v. City of Anna, Tex., ___
F.4th ___, 2024 WL 3448673 (Fed. Cir. July 18, 2024) (ex-
plaining that district court “had no jurisdiction over the un-
asserted claims” when plaintiff “narrowed the scope of
claims at issue”).
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 10
the above cited problems.” Id. After oral argument, the
district court adopted its tentative ruling as its final deci-
sion and granted Blippar’s motion to dismiss with preju-
dice.
Mobile Acuity then filed a motion to alter or amend the
judgment and for leave to file a third amended complaint.
Mobile Acuity argued its requested relief was necessary be-
cause the district court had “made assumptions concerning
the meaning of certain limitations, without any record to
do so” and had “manifestly erred” in finding a lack of in-
ventive concept. J.A. 663. Mobile Acuity also contended
that the court erred in “treat[ing] claims 9 of the ’618 and
’658 Patents as representative of the Asserted Patents” and
by failing to consider Mobile Acuity’s argument that “inva-
lidity under § 101 is an affirmative defense.” J.A. 665-66.
Mobile Acuity insisted that its proposed third amended
complaint would “further clarify that the Asserted Patents
are not invalid.” J.A. 667.
Prior to the hearing on the motion, the district court
issued a tentative order, which later became its final order,
denying Mobile Acuity’s requests. The court explained that
Mobile Acuity “simply reiterate[d] the same arguments the
Court previously rejected,” the additional limitations in
other claims of the Asserted Patents did not “prevent the
Court from treating Claim 9 of the Asserted Patents as rep-
resentative,” and the proposed amendments to the com-
plaint did not “cure the defects in [Mobile Acuity’s] second
amended complaint.” J.A. 17, 19, 20.
Mobile Acuity timely appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(1).
II
We review a district court’s decisions on motions to dis-
miss and motions for leave to amend according to applica-
ble regional circuit law. See Hawk Tech. Sys., LLC v. Castle
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 11
Retail, LLC, 60 F.4th 1349, 1356 (Fed. Cir. 2023) (motions
to dismiss); Bot M8 LLC v. Sony Corp. of Am., 4 F.4th 1342,
1357 (Fed. Cir. 2021) (motions for leave to amend).
The Ninth Circuit reviews a district court’s grant of a
motion to dismiss for failure to state a claim under Rule
12(b)(6) de novo. See Holt v. Cnty. of Orange, 91 F.4th 1013,
1017 (9th Cir. 2024). In doing so, the court “accepts the
factual allegations of the complaint as true and construes
them in the light most favorable to the plaintiff.” Ryan S.
v. UnitedHealth Grp., Inc., 98 F.4th 965, 970 (9th Cir. 2024)
(internal quotation marks and brackets omitted). To sur-
vive a motion to dismiss for failure to state a claim, a com-
plaint must allege “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007).
The Ninth Circuit reviews a district court’s denial of
leave to amend a complaint for abuse of discretion. See
Lund v. Cowan, 5 F.4th 964, 968 (9th Cir. 2021). The ques-
tion of futility of amendment, however, is reviewed de novo.
See United States v. United Healthcare Ins. Co., 848 F.3d
1161, 1172 (9th Cir. 2016). “A determination of futility con-
templates whether, upon de novo review, the amendment
could present a viable claim on the merits for which relief
could be granted.” Murray v. Schriro, 745 F.3d 984, 1015
(9th Cir. 2014).
Under 35 U.S.C. § 101, patents may be granted for “any
new and useful process, machine, manufacture, or compo-
sition of matter, or any new and useful improvement
thereof.” This provision, however, “contains an important
implicit exception: Laws of nature, natural phenomena,
and abstract ideas are not patentable.” Alice Corp. Pty.
Ltd. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). The Su-
preme Court set forth a two-step framework for “distin-
guishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim pa-
tent-eligible applications of those concepts.” Id. at 217. At
step one, we ask “whether the claims at issue are directed
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 12
to one of those patent-ineligible concepts.” Id. If so, we
proceed to step two, where we “search for an inventive con-
cept – i.e., an element or combination of elements that is
sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the ineligible con-
cept itself.” Id. at 217-18 (internal quotation marks and
brackets omitted).
“Patent eligibility under 35 U.S.C. § 101 is ultimately
an issue of law we review de novo.” Berkheimer v. HP Inc.,
881 F.3d 1360, 1365 (Fed. Cir. 2018). The patent eligibility
inquiry, however, “may contain underlying issues of fact.”
Id. “Whether the claim elements or the claimed combina-
tion are well-understood, routine, or conventional is a ques-
tion of fact.” Aatrix Software, Inc. v. Green Shades
Software, Inc., 882 F.3d 1121, 1128 (Fed. Cir. 2018).
III
Mobile Acuity asserts that the district court committed
the following errors: (1) failing to recognize that Blippar’s
nonpatentable subject matter contention is an affirmative
defense and must be evaluated as such at the pleading
stage; (2) treating claim 9 of each of the Asserted Patents
as representative of all claims; (3) finding that the Asserted
Patents are invalid for claiming patent ineligible subject
matter; and (4) denying Mobile Acuity’s request for leave
to file a third amended complaint. We address each issue
in turn.
A
Mobile Acuity first argues that the district court erred
in holding that a challenge under § 101 is not an affirma-
tive defense. We agree with Mobile Acuity that a challenge
to patent eligibility on § 101 grounds is an affirmative de-
fense to a claim of patent infringement. See, e.g., Intell.
Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315, 1324
(Fed. Cir. 2017) (describing “patent-eligibility under § 101”
as example of “an affirmative defense directed to the patent
in question”). Hence, the district court misspoke when it
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 13
stated during oral argument “[w]e are not talking about an
affirmative defense.” J.A. 88. But this error in word choice
was harmless because the district court applied the correct
legal standard for evaluating an affirmative defense at the
motion to dismiss stage.
Mobile Acuity wrongly contends that the district court
required it to “anticipate [the] defendant’s affirmative de-
fense in its complaint.” Appellant’s Br. at 19. The district
court did not grant Blippar’s motion to dismiss on the
grounds that Mobile Acuity failed to address patentable
subject matter in its complaints. Rather, the district court
correctly applied Ninth Circuit law, which provides that a
complaint may be dismissed based on an affirmative de-
fense that “clearly appears on the face of the pleading.”
Boquist v. Courtney, 32 F.4th 764, 774 (9th Cir. 2022).
Here, the district court’s analysis was directed to precisely
this question: is the lack of patentable subject matter ap-
parent on the face of the complaint, which alleged infringe-
ment of the Asserted Patents, which are themselves
attached as exhibits to the complaint? See Plaskett v.
Wormuth, 18 F.4th 1072, 1083 (9th Cir. 2021) (court con-
siders on motion to dismiss “allegations contained in the
pleadings, exhibits attached to the complaint, and matters
properly subject to judicial notice”). Accordingly, as we
have repeatedly recognized, “it is possible and proper to de-
termine patent eligibility under 35 U.S.C. § 101 on a Rule
12(b)(6) motion.” Genetic Techs. Ltd. v. Merial L.L.C., 818
F.3d 1369, 1373 (Fed. Cir. 2016); see also, e.g., AI Visualize,
Inc. v. Nuance Commc’ns, Inc., 97 F.4th 1371, 1381 (Fed.
Cir. 2024) (affirming grant of Rule 12(b)(6) motion).
Mobile Acuity relatedly argues that the district court
failed to accept the factual allegations pleaded in the com-
plaint. We disagree. As we explain in more detail below,
see infra III.C and III.D, Mobile Acuity’s alleged facts, even
taken as true, demonstrate that the claims of the Asserted
Patents are not patent eligible. See Universal Secure Reg-
istry LLC v. Apple Inc., 10 F.4th 1342, 1346 (Fed. Cir. 2021)
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 14
(“[P]atent eligibility can be determined at the Rule 12(b)(6)
stage when there are no factual allegations that, taken as
true, prevent resolving the eligibility question as a matter
of law.”) (internal quotation marks omitted). Thus, we see
no error in the district court’s treatment of the factual alle-
gations in Mobile Acuity’s operative complaint.
B
Mobile Acuity next contends that the district court
erred in treating claim 9 of each of the Asserted Patents as
representative of all claims. We are not persuaded.
Limiting the analysis of a § 101 challenge to repre-
sentative claims is proper when the claims at issue are
“substantially similar and linked to the same” ineligible
concept. Cleveland Clinic Found. v. True Health Diagnos-
tics LLC, 859 F.3d 1352, 1360 (Fed. Cir. 2017) (internal
quotation marks omitted); see also Content Extraction &
Transmission LLC v. Wells Fargo Bank, N.A., 776 F.3d
1343, 1348 (Fed. Cir. 2014). Thus, a district court “may
treat a claim as representative in certain situations, such
as if the patentee does not present any meaningful argu-
ment for the distinctive significance of any claim limita-
tions not found in the representative claim or if the parties
agree to treat a claim as representative.” Berkheimer, 881
F.3d at 1365.
“District courts have discretion to require parties liti-
gating Section 101 motions to identify representative
claims and to articulate why (or why not) claims are repre-
sentative.” Sanderling Mgmt. Ltd. v. Snap Inc., 65 F.4th
698, 701 n.1 (Fed. Cir. 2023) (emphasis added). The patent
challenger who identifies a claim as representative of a
group of claims bears the initial burden to make a prima
facie showing that the group of claims are “substantially
similar and linked to the same” ineligible concept. Cleve-
land Clinic, 859 F.3d at 1360; see also Content Extraction,
776 F.3d at 1348. Once this occurs, the burden shifts to the
patent owner to present non-frivolous arguments as to why
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 15
the eligibility of the identified representative claim cannot
fairly be treated as decisive of the eligibility of all claims in
the group. The patent owner may, for example, articulate
why a claim limitation not found in the representative
claim has “distinctive significance” that would have a ma-
terial impact on the eligibility analysis. Berkheimer, 881
F.3d at 1365; see also Elec. Power Grp., LLC v. Alstom S.A.,
830 F.3d 1350, 1352 (Fed. Cir. 2016). If the patent owner
fails to meet its obligation to make non-frivolous argu-
ments in opposition to the representative claim contention,
it forfeits its right to argue that the claims in the group
identified by the movant are patent eligible even if the rep-
resentative claim is ultimately found to be ineligible. See
generally WhitServe LLC v. Dropbox, Inc., 854 F. App’x
367, 368 n.1 (Fed. Cir. 2021) (nonprecedential); Brit. Tele-
comms. PLC v. IAC/InterActiveCorp, 813 F. App’x 584,
587-88 (Fed. Cir. 2020) (nonprecedential).
The burden to prove the ineligibility of any patent
claim stays with the patent challenger at all times. See
Cellspin Soft, Inc. v. Fitbit, Inc., 927 F.3d 1306, 1319 (Fed.
Cir. 2019) (holding that patents are presumed valid and al-
leged infringer must prove patents do not satisfy prerequi-
sites, including § 101, before patents lose presumption). In
the context of a dispute over the representativeness of a
claim, this burden means that if the patent owner presents
a non-frivolous argument that the eligibility of the pur-
ported representative claim does not fairly represent all
claims in the group for purposes of eligibility,4 the patent
4 Mobile Acuity argues that treating claims as repre-
sentative is “particularly troubling at the pleading stage,
since additional asserted claims may be identified during
discovery.” Appellant’s Br. at 45. A patent owner cannot
defeat a representative claim contention by conclusorily as-
serting it needs discovery, for the patent owner must “pre-
sent [a] meaningful argument for the distinctive
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 16
challenger bears the burden to prove either that (i) the rep-
resentative claim is, in fact, representative, in that any dif-
ferences among the claims are not material to the
eligibility analysis (i.e., the claims are substantially simi-
lar and are linked to the same ineligible concept); or (ii)
each separate claim (i.e., those not fairly represented by
the purported representative claim) is ineligible for patent-
ing. This approach is mandated by the longstanding prin-
ciple that “[e]ach claim of a patent (whether in
independent, dependent, or multiple dependent form) shall
be presumed valid independently of the validity of other
claims.” 35 U.S.C. § 282; see also Intell. Ventures I LLC v.
Symantec Corp., 838 F.3d 1307, 1316 n.9 (Fed. Cir. 2016)
(“Addressing each of the asserted claims is unnecessary
when all the claims are substantially similar and linked to
the same abstract idea.”) (internal quotation marks omit-
ted).
Because the eligibility findings with respect to repre-
sentative claims only extend to claims for which they are
representative, and correspondingly do not extend to
claims they do not represent, it is important for courts to
resolve any disputes over representativeness and clearly
state which claims are, and are not, adequately repre-
sented by others.
Here, Blippar argued in its opening brief supporting its
motion to dismiss that claim 9 of the ’618 patent and claim
9 of the ’658 patent “are representative of the entire claim
set in each respective Asserted Patent.” J.A. 258. Blippar
explained how the other claims in the Asserted Patents are
substantially similar to the representative claims –
significance of any claim limitations not found in the rep-
resentative claim[s].” Berkheimer, 881 F.3d at 1365. Still,
a patent owner may potentially point to a need for discov-
ery as part of its non-frivolous argument against a repre-
sentative claim contention.
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 17
because the other claims’ additional limitations only “tack
on generic computer components . . . or introduce conven-
tional computer activities” – and are all directed to the
same abstract idea: leaving information at a location or ob-
ject for future access and use. J.A. 258, 260. In response,
Mobile Acuity failed, as the district court put it, to “refer
the Court to any limitations in the claims that Plaintiff
does not currently assert that would change the Court’s
analysis.” J.A. 11. While Mobile Acuity pointed to claims
11 and 16 of both the ’618 and ’658 patents, these claims
did “not prevent the Court from treating Claim 9 of the As-
serted Patents as representative,” J.A. 19, because Mobile
Acuity did not present a non-frivolous argument that the
eligibility of the purported representative claim does not
fairly represent all claims of the Asserted Patents. Hence,
the district court would have been free to treat just these
two claims (claim 9 of the ’618 patent and claim 9 of the
’658 patent) as representative and limit its explicit analysis
to these two. In fact, however, the court did more, sepa-
rately analyzing all six claims Mobile Acuity specifically
identified in the operative complaint – claims 9, 11, and 16
of both the ’618 and ’658 patents – exercising its discretion
to treat this broader group of claims as “representative of
the claims of the Asserted Patents.” J.A. 11.
On appeal, Mobile Acuity contends that claim 14 of the
’618 patent and claim 14 of the ’658 patent add elements
that were ignored by the district court. This argument is
unavailing because the district court also expressly ad-
dressed the eligibility of those two claims, finding that they
did not contain any further elements affecting the eligibil-
ity analysis. J.A. 19. In any event, even before us Mobile
Acuity has failed to identify any limitations in any of its
claims that are materially different – for purposes of a pa-
tentable subject matter analysis – from the claims the dis-
trict court treated as representative.
We agree with the district court that the six claims it
treated as representative of all claims of the two Asserted
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 18
Patents are, in fact, representative. Therefore, we, like the
district court, need only analyze the patent eligibility of
these representative claims.5
C
1
We turn next to the district court’s finding that the
claims of the Asserted Patents are directed to patent ineli-
gible subject matter. We agree with the district court that
the claims it considered – which are representative of all
claims of the Asserted Patents – are directed to an abstract
idea, although we articulate the abstract idea slightly (and
not materially) differently than the district court.6 Specif-
ically, Mobile Acuity’s claims are directed to the abstract
idea of receiving information, associating information with
images, comparing the images, and presenting information
based on that comparison.
Taking claim 9 of the ’618 patent and claim 9 of the ’658
patent as examples, the claims recite the steps of “receiving
5 It follows that our ruling, like that of the district
court, therefore applies to all claims of both Asserted Pa-
tents. That is, each such claim is ineligible for patenting.
6 The district court found that: (1) the independent
claims of the Asserted Patents are directed to “‘leaving’ in-
formation at a location or object for one’s future use or ref-
erence,” J.A. 8; (2) claim 11 of the ’618 patent and claim 14
of the ’658 patent are directed to “collecting information,
analyzing it, and displaying certain results of the collection
and analysis,” id. (internal quotation marks omitted); and
(3) claim 14 of the ’618 patent is directed to “comparing
data and displaying information based on that compari-
son,” id. These immaterially different formulations indi-
cate that the district court found, correctly, that the claims
at issue are all linked to the same ineligible concept.
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 19
. . . user-defined information,” “associating” that infor-
mation with an image in a database, and “providing access”
to that information either “when a second image . . . in-
cludes a portion corresponding to at least the first portion
of the first image,” ’618 patent at 13:58-14:7, or “in depend-
ence upon the first portion of the first image and a second
image . . . and also a location at which the second image is
captured,” ’658 patent at 14:11-14. These claims consist
solely of result-orientated, functional language and omit
any specific requirements as to how these steps of infor-
mation manipulation are performed. As we have by now
frequently held, claims reciting generalized steps of collect-
ing, analyzing, and presenting information, using nothing
other than the conventional operations of generic computer
components, are directed to abstract ideas. See, e.g., AI
Visualize, 97 F.4th at 1378 (“We have explained that the
steps of obtaining, manipulating, and displaying data, par-
ticularly when claimed at a high level of generality, are ab-
stract concepts.”); Elec. Power Grp., 830 F.3d at 1353-54
(finding challenged claim directed to abstract idea of “col-
lecting information, analyzing it, and displaying certain re-
sults of the collection and analysis”); Berkheimer, 881 F.3d
at 1366-67 (same for “parsing, comparing, storing, and ed-
iting data”). In particular, the requirement in claim 9 of
the ’618 patent that a portion of the second image be “cor-
responding” with a portion of the first image does not, con-
trary to Mobile Acuity’s insistence, “invoke[] a specific
method for comparing the images.” Appellant’s Br. at 27-
28. The claim provides no details as to how the “corre-
sponding” portions of images are determined.
The other representative claims of the ’618 and ’658 pa-
tents add nothing of significance to the eligibility analysis.
Mobile Acuity argues that claim 11 of the ’618 patent (as
well as claim 14 of the ’658 patent) recites extracting and
matching “interest points” from the first and second images
to perform the correspondence between images. The
claims, however, provide no specificity as to how the “inter-
est points” are determined or used in image comparison.
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 20
Mobile Acuity directs us to the specification, which pur-
portedly “teaches one of ordinary skill in the art how to
match and compare the user-uploaded image through the
use of correspondence and interest points.” Appellant’s Br.
at 28. Even assuming this “teaching” can be found, it is not
included in the claims, yet it is the claims that must supply
the non-abstract idea. See Am. Axle & Mfg., Inc. v. Neapco
Holdings LLC, 967 F.3d 1285, 1293 (Fed. Cir. 2020)
(“[F]eatures that are not claimed are irrelevant as to step
1 or step 2 of the Mayo/Alice analysis.”); Synopsys, Inc. v.
Mentor Graphics Corp., 839 F.3d 1138, 1149 (Fed. Cir.
2016) (“The § 101 inquiry must focus on the language of the
Asserted Claims themselves.”).
The district court found that the additional limitations
of claim 16 of the ’618 patent “only provide the generic com-
puter environment to carry out the abstract idea.” J.A. 8.
The district court also found that the additional limitations
of claims 11 and 16 of the ’658 patent “do not add enough
to transform the claims from abstract to concrete.” J.A. 9.
Mobile Acuity does not challenge these findings on appeal
and we see no basis to disagree with them.
We can quickly dispose of several other of Mobile Acu-
ity’s remaining arguments. It suggests that claim con-
struction (of the terms “corresponding” and “interest
points”) was necessary as a prerequisite to deciding the mo-
tion to dismiss, but Mobile Acuity failed to identify a claim
construction dispute before the district court and failed
even to propose a construction it contended would make a
difference to the § 101 analysis. J.A. 17. 7 To defeat a
7 Mobile Acuity insists that it “identified claim con-
structions, including for ‘correspondence’ and ‘interest
points.’” Appellant’s Br. at 23 (citing J.A. 604-05). In sup-
port, it cites several paragraphs of its proposed third
amended complaint, but these contain no proposed
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 21
motion to dismiss based on the purported need for claim
construction, a “patentee must propose a specific claim con-
struction . . . and explain why [any dispute] . . . must be re-
solved before the scope of the claims can be understood for
§ 101 purposes.” Trinity Info Media, LLC v. Covalent, Inc.,
72 F.4th 1355, 1361 (Fed. Cir. 2023); see also Cleveland
Clinic, 859 F.3d at 1360 (collecting cases affirming patent-
ability decisions at pleading stage without claim construc-
tion). Finally, Mobile Acuity suggests that the claimed
invention describes “a nonabstract computer-functionality
improvement,” specifically an improvement in “computer
vision capabilities.” Appellant’s Br. at 32-33. Instead, we
agree with the district court (see J.A. 11) that the claims,
at best, “improv[e] a user’s experience while using a com-
puter application,” which “is not, without more, sufficient
to render the claims directed to an improvement in com-
puter functionality.” Customedia Techs., LLC v. Dish Net-
work Corp., 951 F.3d 1359, 1365 (Fed. Cir. 2020).
Thus, we agree with the district court that the claims
of the Asserted Patents are directed to an abstract idea at
step one of Alice.
2
Turning to step two of the Alice test, we again agree
with the district court. The claims of the Asserted Patents
do not recite an inventive concept.
As an initial matter, Mobile Acuity makes no attempt
on appeal to argue that there are material differences (for
purposes of the patentability analysis) among the six rep-
resentative claims, except for the recitation of “interest
points” in claim 11 of the ’618 patent. Thus, in our discus-
sion we do not need to delineate among the representative
construction nor any analysis of how any particular con-
struction would impact the issue of patentability.
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 22
claims other than to specifically address Mobile Acuity’s ar-
guments regarding the “interest points.”
Mobile Acuity argues that the “inventive concept” in its
claims is “using the object (or location) itself as the trigger
for leaving information to be collected in the future.” Ap-
pellant’s Br. at 38. That purported “inventive concept” is
part of the abstract idea of comparing images and display-
ing information based on the comparison. But the abstract
idea “cannot supply the inventive concept that renders the
invention ‘significantly more’ than that abstract idea at
step two.” Simio, LLC v. FlexSim Software Prod., Inc., 983
F.3d 1353, 1364 (Fed. Cir. 2020) (internal quotation marks
and brackets omitted); see also Intell. Ventures I LLC v.
Cap. One Bank (USA), 792 F.3d 1363, 1368 (Fed. Cir. 2015)
(“Instructing one to ‘apply’ an abstract idea and reciting no
more than generic computer elements performing generic
computer tasks does not make an abstract idea patent-eli-
gible.”). To the extent Mobile Acuity is suggesting that its
alleged “inventive concept” is not found in the prior art,
that contention is unavailing at step two, as “a claim for a
new abstract idea is still an abstract idea.” Synopsys, 839
F.3d at 1151; see also SAP Am., Inc. v. InvestPic, LLC, 898
F.3d 1161, 1163 (Fed. Cir. 2018) (“We may assume that the
techniques claimed are groundbreaking, innovative, or
even brilliant, but that is not enough for eligibility.”) (in-
ternal quotation marks and brackets omitted).
Mobile Acuity further argues that the inventive con-
cept is found in the claim limitations requiring use of “in-
terest points” for image comparison, which purportedly
“provides users an innovative way to retrieve information.”
Appellant’s Br. at 40. Methods of mapping interest points
to compare images is expressly described in the
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 23
specification as existing in the prior art.8 Even assuming
the specification leaves room for Mobile Acuity to plausibly
allege that the use of “interest points” is nonetheless an in-
ventive concept, it has failed to do so. See Weisner v. Google
LLC, 51 F.4th 1073, 1083 (Fed. Cir. 2022) (explaining that
“district court[s] [may] appropriately rel[y] on statements
in the specification . . . to conclude that the claims rely on
the use of existing technology”) (internal quotation marks
omitted).
For the foregoing reasons, we agree with the district
court that the claims of the Asserted Patents are directed
to ineligible subject matter.
D
Finally, we turn to Mobile Acuity’s contention that the
district court erred in denying its motion for leave to
amend. Because the district court held that any amend-
ment would be futile, as it would fail to cure the defects in
the operative complaint, we review the district court’s de-
cision de novo. See United Healthcare, 848 F.3d at 1172.
We agree with the district court that Mobile Acuity’s
proposed third amended complaint does not fix the prob-
lems plaguing the operative complaint. Mobile Acuity ar-
gues that its amendments make clear that the concepts of
8 See, e.g., ’618 patent at 6:47-57 (“Various methods
can be used to determine interest points. For example,
Hartley and Zisserman . . . use interest points defined by
regions of minima in the image auto-correlation function.
Interest points may also be defined using Scale invariant
Feature Transform (SIFT) features as described in [a pub-
lication by] David G. Lowe.”); id. at 8:9-16 (“It is possible
but not necessary for the scene image to contain all of the
target region of the model image. . . . A suitable process
. . . uses the Random Sample Consensus (RANSAC) algo-
rithm which is described in Hartley and Zisserman.”).
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MOBILE ACUITY LTD. v. BLIPPAR LTD. 24
“corresponding” and “interest points” are “concrete” and
“refer to specific features.” Appellant’s Br. at 47. Even the
inclusion in the claims of some specific concepts about im-
age comparison does not alter the abstract character of the
claims as a whole. See Simio, 983 F.3d at 1362; Cellspin,
927 F.3d at 1316.
Mobile Acuity also contends that the allegations in the
proposed third amended complaint “more clearly sets forth
the inventive concept” of using physical objects as the “trig-
ger” for searching and providing access to data. Appellant’s
Br. at 48. Its purported “inventive concept,” including
“put[ting] the control into the hands of the users to define
information linked to a photograph on a database,” Appel-
lant’s Br. at 49 (citing J.A. 632-33 ¶¶ 31, 38), are nothing
more than the implementation of an abstract idea with con-
ventional computer operations, and are not “significantly
more” than the abstract idea itself, as required to survive
step two of the Alice test. See Synopsys, 839 F.3d at 1151;
SAP Am., 898 F.3d at 1163.
For these reasons, the district court did not err in find-
ing that Mobile Acuity’s proposed third amended complaint
would be futile. Accordingly, the district court did not err
in denying Mobile Acuity’s motion for leave to amend.
IV
We have considered Mobile Acuity’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the district court’s grant of Blippar’s motion
to dismiss and denial of Mobile Acuity’s motion for leave to
amend.
AFFIRMED
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