Mymail, Ltd. v. Oovoo, LLC, Iac Search & Media, Inc.

United States Court of Appeals
for the Federal Circuit
______________________
MYMAIL, LTD.,
Plaintiff-Appellant
v.
OOVOO, LLC, IAC SEARCH & MEDIA, INC.,
Defendants-Appellees
______________________
2018-1758, 2018-1759
______________________
Appeals from the United States District Court for the
Northern District of California in Nos. 5:17-cv-04487-LHK,
5:17-cv-04488-LHK, Judge Lucy H. Koh.
______________________
Decided: August 16, 2019
______________________
ERIC WILLIAM BUETHER , Buether Joe & Carpenter
LLC, Dallas, TX, argued for plaintiff-appellant. Also rep-
resented by BLAKE WILLIAM BUETHER .
ROBERT L OUIS H AILS , J R., Baker & Hostetler LLP,
Washington, DC, argued for defendants-appellees. Also
represented by T. CY WALKER ; K EVIN P ATRICK F LYNN, Cin-
cinnati, OH; J ARED A. BRANDYBERRY , Denver, CO.
______________________
Before L OURIE, O’M ALLEY , and REYNA, Circuit Judges.

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MYMAIL, LTD. v. OOVOO, LLC 2
Opinion for the court filed by Circuit Judge REYNA.
Opinion dissenting filed by Circuit Judge L OURIE.
REYNA, Circuit Judge.
MyMail, Ltd. appeals the decision of the United States
District Court for the Northern District of California grant-
ing ooVoo, LLC’s and IAC Search & Media, Inc.’s motions
for judgment on the pleadings. Because we determine that
the district court erred by declining to resolve the parties’
claim construction dispute before adjudging patent eligibil-
ity, we vacate and remand.
BACKGROUND
MyMail, Ltd. (“MyMail”) is the assignee of U.S. Patent
Nos. 8,275,863 (“the ’863 patent”) and 9,021,070 (“the ’070
patent”) (collectively, the “MyMail patents”). On Novem-
ber 18, 2016, MyMail filed suit against ooVoo, LLC
(“ooVoo”) in the United States District Court for the East-
ern District of Texas for infringement of the MyMail pa-
tents. About a month later, MyMail asserted its patents
against IAC Search & Media, Inc. (“IAC”), also in the East-
ern District of Texas. ooVoo and IAC each moved to dis-
miss their respective actions for improper venue. After the
Supreme Court’s opinion in TC Heartland LLC v. Kraft
Foods Group Brands LLC, 137 S. Ct. 1514 (2017), all par-
ties agreed to transfer the lawsuits to the Northern District
of California. On July 12, 2017, both cases were trans-
ferred.
On October 31, 2017, ooVoo and IAC each filed identi-
cal motions for judgment on the pleadings, asserting that
the MyMail patents are directed to patent-ineligible sub-
ject matter under 35 U.S.C. § 101. MyMail opposed both
motions, arguing that the claimed inventions are patent el-
igible, as evidenced in part by a construction of the term
“toolbar” rendered by the Eastern District of Texas in an
earlier proceeding involving the ’070 patent. MyMail en-
couraged the court to adopt the Eastern District of Texas’s

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MYMAIL, LTD. v. OOVOO, LLC 3
construction of “toolbar” as part of its § 101 analysis. ooVoo
and IAC opposed the adoption of that construction. But the
district court in this case did not construe “toolbar” or any
other terms of the MyMail patent claims. Nor did the court
address the parties’ dispute. Instead, on March 16, 2018,
the district court issued orders granting ooVoo’s and IAC’s
motions for judgment on the pleadings, holding the MyMail
patents invalid under § 101. MyMail timely appealed both
orders and this court consolidated the appeals.
I. The MyMail Patents
The MyMail patents are directed to methods of modify-
ing toolbars that are displayed on Internet-connected de-
vices such as personal computers. MyMail asserts
claims 1–5, 9–13, 16–17, 19–20, and 23 of the ’863 patent
and claims 1–13 and 15–22 of the ’070 patent (the “MyMail
patent claims”). The parties agree that claim 1 of the ’863
patent and claim 1 of the ’070 patent are representative of
the claimed subject matter for each patent, respectively.1
The representative claims for both patents are reproduced
below.
Claim 1 of the ’863 patent recites:
1. A method of modifying a toolbar, comprising the
steps of:
a user Internet device displaying a toolbar com-
prising one or more buttons, the toolbar defined
by toolbar data stored in one or more toolbar-
defining databases, the toolbar data compris-
ing a plurality of attributes, each attribute
1 The ’070 patent is a continuation of U.S. Applica-
tion No. 13/573,311, which in turn is a continuation of the
application that became the ’863 patent. The specifications
of the ’070 patent and the ’863 patent are thus nearly iden-
tical. We refer to the ’070 patent unless otherwise noted.

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MYMAIL, LTD. v. OOVOO, LLC 4
associated with a button of the toolbar, wherein
for each button of the toolbar, at least one of the
plurality of attributes identifying a function to
be performed when the button is actuated by
the user Internet device;
the user Internet device automatically sending
a revision level of the one or more toolbar-de-
fining databases to a predetermined network
address;
a server at the predetermined network address
determining, from the revision level, the user
Internet device should receive the toolbar up-
date data;
the user Internet device receiving toolbar up-
date data from the Internet;
the user Internet device initiating without user
interaction an operation to update the toolbar
data in accordance with the toolbar update
data received;
the user Internet device updating, by the oper-
ation, the toolbar data in accordance with the
toolbar update data, thereby producing up-
dated toolbar data, the updating comprising at
least one of the following steps (a) and (b), each
respectively comprising:
(a) writing at least one new attribute to the
original toolbar data, wherein the writing
at least one new attribute to the toolbar
data comprises changing the one or more
buttons of the toolbar by adding a button;
and
(b) updating at least one attribute of the
toolbar data; and

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MYMAIL, LTD. v. OOVOO, LLC 5
the user Internet device displaying the toolbar
as defined by the updated toolbar data.
’863 patent col. 29 ll. 28–63.
Claim 1 of the ’070 patent recites:
1. A method for dynamically modifying a toolbar,
the method comprising:
displaying the toolbar, at a user Internet de-
vice, that includes one or more toolbar buttons,
the toolbar defined by toolbar data stored in
one or more toolbar-defining databases, the
toolbar data comprising a plurality of toolbar
button attributes associated with the one or
more toolbar buttons of the toolbar, wherein at
least one of the plurality of toolbar button at-
tributes identifies a function to be performed
by a specific toolbar button upon actuation of
the specific toolbar button;
invoking, from the user Internet device without
user intervention, communication of infor-
mation associated with the one or more toolbar-
defining databases to a server associated with
a network address;
receiving, at the server, the information associ-
ated with the one or more toolbar-defining da-
tabases;
determining, based on the information associ-
ated with the one or more toolbar-defining da-
tabases, that the user Internet device should
receive updated toolbar data;
receiving, at the user Internet device, the up-
dated toolbar data in response to determining
that the user Internet device should receive the
updated toolbar data;

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MYMAIL, LTD. v. OOVOO, LLC 6
initiating, at the user Internet device and with-
out user interaction, an operation to update the
toolbar data in accordance with the received
updated toolbar data;
updating the toolbar data at the user Internet
device based on the operation and in accord-
ance with the updated toolbar data, thereby
updating the toolbar data, the updating com-
prising at least one member of a group compris-
ing (a) and (b):
(a) updating the toolbar data to include at
least one new attribute of the toolbar data
to change the toolbar by adding a toolbar
button to the toolbar; and
(b) updating the toolbar data to modify an
attribute of at least one of the one or more
toolbar buttons of the toolbar; and
displaying at the user Internet device the toolbar
as defined by the updated toolbar data,
wherein the information associated with the
toolbar data includes at least one member of a
group comprising a revision level, version, time,
date, user ID, account owner ID, PAP ID, IP ad-
dress, session keys, billing data, name, address, ac-
count information, connection history, procedures
performed by a user, group ID, e-mail address, e-
mail ID, e-mail password, residential address, and
phone number.
’070 patent col. 29 l. 40–col. 30 l. 20.
II. The Northern District of California’s § 101 Analysis
In concluding that the MyMail patent claims are pa-
tent ineligible under 35 U.S.C. § 101, the district court for
the Northern District of California determined that the
claims fail both steps of the Supreme Court’s Alice test. See

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MYMAIL, LTD. v. OOVOO, LLC 7
Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216–18 (2014).
The district court performed this analysis without constru-
ing the claims or addressing the parties’ claim construction
dispute.
At Alice step one, the district court found that the
MyMail patent claims “are directed to a process for updat-
ing toolbar software over a network without user interven-
tion.” J.A. 17. After comparing the MyMail patent claims
with those already found to be directed to abstract ideas in
other cases, the district court concluded that the MyMail
patent claims are directed to an abstract idea because they
“fall within the category of gathering and processing infor-
mation” and “recite a process comprised of transmitting
data, analyzing data, and generating a response to trans-
mitted data.” J.A. 17–18. The district court also concluded
that the claims are directed to an abstract idea because
“they relate to using communications networks to update
software stored on computers.” J.A. 19.
At Alice step two, the district court concluded that the
claims fail to provide an inventive concept sufficient to save
the claims. The district court reasoned that the claims re-
cite generic, conventional components, such as “Internet-
connected computers and servers,” and that the specifica-
tion confirmed that toolbars, which are the subject of the
invention, were already in widespread use. J.A. 22 (citing
’863 patent col. 10 ll. 8–13). The court concluded that add-
ing or changing a button on the toolbar based on data
stored in a toolbar-defining database is routine and conven-
tional, and as a result, the MyMail patents are ineligible
under § 101. MyMail appealed.
We have jurisdiction under 28 U.S.C. § 1295(a)(1).
D ISCUSSION
MyMail now raises two issues on appeal: (1) whether
the district court erred by failing to construe the MyMail
patent claims before ruling on ooVoo’s and IAC’s Rule 12(c)

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MYMAIL, LTD. v. OOVOO, LLC 8
motions; and (2) whether the district court erred by finding
the MyMail patent claims patent ineligible under § 101.
We review a district court’s Rule 12(c) dismissal for
judgment on the pleadings under the law of the regional
circuit, here the Ninth Circuit. Nat. Alternatives Int’l, Inc.
v. Creative Compounds, LLC, 918 F.3d 1338, 1342 (Fed.
Cir. 2019) (the Rule 12(c) analysis is “functionally identi-
cal” to the standard for deciding a Rule 12(b)(6) motion to
dismiss). The Ninth Circuit reviews a court’s grant of judg-
ment on the pleadings de novo. Daewoo Elecs. Am. Inc. v.
Opta Corp., 875 F.3d 1241, 1246 (9th Cir. 2017).
When reviewing a Rule 12(c) dismissal, the Ninth Cir-
cuit accepts all material allegations in the complaint as
true and construes them in the light most favorable to the
non-moving party. Turner v. Cook, 362 F.3d 1219, 1225
(9th Cir. 2004). In doing so, the court may consider mate-
rial that is properly submitted as part of the complaint,
which includes documents not physically attached to the
complaint if their authenticity is not contested and the
complaint necessarily relies on them. Lee v. City of Los An-
geles, 250 F.3d 668, 688–89 (9th Cir. 2001). The court may
also take judicial notice of matters of public record. Id. The
dismissal may be affirmed only if it is clear that no relief
could be granted under any set of facts that could be proved
consistent with the allegations. Turner, 362 F.3d at 1225.
Patent eligibility under § 101 is a question of law that
may involve underlying questions of fact. Interval Licens-
ing LLC v. AOL, Inc., 896 F.3d 1335, 1342 (Fed. Cir. 2018).
We review the district court’s ultimate conclusion on pa-
tent eligibility de novo. Id. Patent eligibility may be de-
termined on a Rule 12(c) motion, but only when there are
no factual allegations that, if taken as true, prevent resolv-
ing the eligibility question as a matter of law. Aatrix Soft-
ware, Inc. v. Green Shades Software, Inc., 882 F.3d 1121,
1125 (Fed. Cir. 2018).

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MYMAIL, LTD. v. OOVOO, LLC 9
We evaluate patent eligibility under the two-step test
set forth in Alice. 573 U.S. at 216–18. First, we consider
whether a claim is directed to a patent-ineligible concept
such as an abstract idea, law of nature, or natural phenom-
enon. Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350,
1353 (Fed. Cir. 2016) (citing Alice, 573 U.S. at 216–18).
Second, if the claim is directed to a patent-ineligible con-
cept, we then determine whether the claim elements, con-
sidered both individually and as an ordered combination,
“‘transform the nature of the claim’ into a patent-eligible
application,” of that concept. Id. (quoting Alice, 573 U.S.
at 217).
Determining patent eligibility requires a full under-
standing of the basic character of the claimed subject mat-
ter. Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of
Can. (U.S.), 687 F.3d 1266, 1273–74 (Fed. Cir. 2012). As
a result, if the parties raise a claim construction dispute at
the Rule 12(c) stage, the district court must either adopt
the non-moving party’s constructions or resolve the dispute
to whatever extent is needed to conduct the § 101 analysis.
See Aatrix, 882 F.3d at 1125.
Before the district court, the parties disputed the con-
struction of “toolbar,” a claim term present in the claims of
both MyMail patents. MyMail directed the district court to
a construction of “toolbar” rendered in another case involv-
ing the MyMail patents, MyMail, Ltd. v. Yahoo! Inc.,
No. 2:16-cv-01000 (E.D. Tex. 2017). J.A. 733, J.A. 734 n.8,
J.A. 740,2 J.A. 750–82.
2 The parties’ Rule 12(c) memoranda are practically
identical in both of the district court proceedings. Unless
otherwise noted, we refer to the briefing in MyMail Ltd. v.
ooVoo, LLC, No. 5:17-cv-04488 (N.D. Cal.) (ECF Nos. 101,
109, 110), at J.A. 450–72, J.A. 722–82, J.A. 844–914.

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MYMAIL, LTD. v. OOVOO, LLC 10
In Yahoo!, the court construed “toolbar” based on “def-
initional” language in the specification that describes “the
[t]oolbar of the present invention” as capable of being “dy-
namically changed or updated via a Pinger process or a
MOT script.” J.A. 764 (emphasis omitted) (quoting ’070 pa-
tent col. 10 ll. 24–26). The Yahoo! court found that the
“toolbar” recited in the claims is “not a generic toolbar,” and
quoted the following definition of the “Pinger process”:
As defined in this application . . . a Pinger process
comprises an entity that acts transparently as a
“services” coordinator to provide and/or administer
the following: 1. Heartbeat service to help maintain
network connectivity with a client. 2. Authentica-
tion services that securely authenticate client ac-
cess to email, commerce, and other public and
private network servers and services. 3. Update
services that can perform client software, database,
and maintenance services during periods of inac-
tivity.
J.A. 764 (quoting ’070 patent col. 10 ll. 16–26). Ultimately,
the Yahoo! court construed “toolbar” to mean a “button bar
that can be dynamically changed or updated via a Pinger
process or a MOT script” (the “Yahoo! construction”).
J.A. 766.
In this case, MyMail argued to the district court that
the Yahoo! construction “confirms that the claims of
the ’070 patent are directed to a particular technological
process for improving an exclusively computer-oriented de-
vice.” J.A. 740. ooVoo and IAC, on the other hand, argued
that the Yahoo! construction was “erroneous” and “im-
proper.” J.A. 853–55. On appeal, ooVoo and IAC maintain
that the Yahoo! construction is “wrong.” Appellee Br. 29.
The district court never addressed the parties’ claim
construction dispute. Nor did the district court construe
“toolbar” or adopt MyMail’s proposed construction of
“toolbar” for purposes of deciding ooVoo’s and IAC’s Rule

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MYMAIL, LTD. v. OOVOO, LLC 11
12(c) motions. See Appellee Br. 39 (“[T]he district court’s
order on appeal sets forth no findings or conclusions re-
garding the precise construction of the [toolbar] term.”).
We note that Aatrix issued after the parties briefed ooVoo’s
and IAC’s Rule 12(c) motions, but before the district court
granted the motions. The district court did not cite Aatrix
in its decision. Nevertheless, the district court’s failure to
address the parties’ claim construction dispute is error un-
der Aatrix. See 882 F.3d at 1125.
ooVoo and IAC contend that this error is “readily dis-
missed” because the Yahoo! construction of “toolbar” is “re-
dundant of other elements that already are present in the
representative claims.” Appellee Br. 29. We disagree.
While ooVoo and IAC contend that “the pinger’s function-
ality is merely redundant,” id. at 30, and thus “adoption of
MyMail’s construction would have no impact on the claims’
scope and, by extension, no impact on an Alice analysis,”
id. at 32, we decline to construe “toolbar” and the MyMail
patent claims in the first instance.
We are generally hesitant to construe patent claims in
the first instance on appeal. Meyer Intellectual Props. Ltd.
v. Bodum, Inc., 690 F.3d 1354, 1368 (Fed. Cir. 2012). Our
hesitancy is intended to avoid conflating de novo review
with an independent analysis. See Wavetronix LLC v. EIS
Elec. Integrated Sys., 573 F.3d 1343, 1355 (Fed. Cir. 2009)
(citing Nazomi Commc’ns, Inc. v. Arm Holdings, PLC, 403
F.3d 1364, 1371 (Fed. Cir. 2005)) (noting that this court’s
review of claim construction without deference is not an in-
dependent analysis in the first instance). While in some cir-
cumstances an appeal may present a record sufficiently
developed to enable construction, see, e.g., Meyer, 690 F.3d
at 1369, we do not find such a record here. ooVoo and IAC
appear to agree. Appellee Br. 39 (“The proper construction
of the term ‘toolbar’ was not fully briefed or argued to the
district court on IAC’s Rule 12(c) motion, and the district
court’s order on appeal sets forth no findings or conclusions
regarding the precise construction of the term.”)

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MYMAIL, LTD. v. OOVOO, LLC 12
Likewise, to the extent ooVoo and IAC ask us to deter-
mine in the first instance patent eligibility of the MyMail
patent claims under MyMail’s proposed construction, we
decline to do so. The determination of patent eligibility
may involve subsidiary fact questions, including whether
“the claim elements or the claimed combination are well-
understood, routine, [or] conventional.” Aatrix, 882 F.3d at
1128. See J.A. 13–14. It is improper for us to determine
factual issues in the first instance on appeal. 3M Co. v.
Avery Dennison Corp., 673 F.3d 1372, 1378 (Fed. Cir. 2012)
(“[W]e cannot resolve the parties’ factual disputes on ap-
peal.”).
CONCLUSION
We have considered ooVoo’s and IAC’s other arguments
and find them unpersuasive. We conclude that the district
court erred by failing to address the parties’ claim construc-
tion dispute before concluding, on a Rule 12(c) motion, that
the MyMail patents are directed to patent-ineligible sub-
ject matter under § 101. We vacate and remand for further
proceedings consistent with this opinion.
VACATED AND REMANDED
COSTS
No costs.

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United States Court of Appeals
for the Federal Circuit
______________________
MYMAIL, LTD.,
Plaintiff-Appellant
v.
OOVOO, LLC, IAC SEARCH & MEDIA, INC.,
Defendants-Appellees
______________________
2018-1758, 2018-1759
______________________
Appeals from the United States District Court for the
Northern District of California in Nos. 5:17-cv-04487-LHK,
5:17-cv-04488-LHK, Judge Lucy H. Koh.
______________________
L OURIE, Circuit Judge, dissenting.
I respectfully dissent from the majority’s decision to va-
cate a thorough and well-reasoned district court decision
based on a claim construction issue that is little more than
a mirage. In my view, the claims at issue are clearly ab-
stract, regardless of claim construction. Since the majority
declines to dispute that conclusion, I submit that we should
resolve the legal question of eligibility and simply affirm.
Resolution of this case should have been simple. In
Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350
(Fed. Cir. 2016), this court, summarizing numerous
precedents, held that the analysis, transmission, and
display of information are, in themselves, abstract ideas.
Id. at 1353–54. That straightforward holding dictates an

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MYMAIL, LTD. v. OOVOO, LLC 2
affirmance in this case, where the claims do not “require[]
anything other than off-the-shelf, conventional computer,
network, and display technology for gathering, sending,
and presenting the desired information.” Id. at 1355. In
this case, that information is toolbar software. J.A. 911
(“[S]oftware being electronically transferred would be
considered data in a data stream.”); see also Affinity Labs.
of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258 (Fed.
Cir. 2016) (holding that “providing out-of-region access to
regional broadcast content is an abstract idea” because it
comprises “information distribution that is untethered to
any specific or concrete [implementation]”).
The claims’ breadth illustrates their abstract nature.
They cover any toolbar modification, on any of the
multitudes of Internet-connected devices, using generic
servers and Internet functionality. See, e.g., ’863 patent
col. 4 ll. 51–55, col. 9 ll. 17–19, col. 11 ll. 25–43, col. 13 ll.
16–19, col. 18 ll. 32–40. But any invention in using known
devices in a new way to transmit data must lie in using the
devices themselves differently to accomplish a new process,
not simply transmitting a different type of data according
to the same process. Cf. Ansonia Brass & Copper Co. v.
Elec. Supply Co., 144 U.S. 11, 18–19 (1892) (“[A]pplication
of an old process or machine to a similar or analogous
subject, with no change in the manner of application and
no result substantially distinct in its nature, will not
sustain a patent, even if the new form of result had not
before been contemplated.”) (citation omitted).
While “inventive programming” may provide an
inventive concept in some circumstances, see Elec. Pwr.
Grp., 830 F.3d at 1355, no such programming is disclosed
here. Indeed, such programming would necessarily differ
widely within the nearly universal range of devices,
operating systems, and Internet protocols encompassed by
the claims. What remains corresponds only to the familiar
abstract ideas of sending data over the Internet between a
device and a server and changing the device’s display

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MYMAIL, LTD. v. OOVOO, LLC 3
accordingly, captured by the district court as “a process for
updating toolbar software over a network without user
intervention.” MyMail, Ltd. v. ooVoo, LLC, 313 F. Supp.
3d 1095, 1108 (N.D. Cal. 2018). Thus, the claims are
directed only to an abstract idea, not a patent-eligible
invention.
Nevertheless, the majority urges the district court on
remand to evaluate a factual issue about the meaning of
the unclaimed “pinger process,” which is the term used by
MyMail to describe its claimed method of updating toolbar
software. MyMail Br. 8. But the specification is clear that
neither the unclaimed pinger process nor the unclaimed
MOT script can be the inventive concept. The pinger pro-
cess itself is not disclosed as the invention, but instead is
functionality “assumed to be part of the access service pro-
vider.” ’863 patent col. 11 ll. 42–43. Its teaching on the
“MOT script” is no more enlightening. Id. col. 12 ll. 50–51
(“MOT is not, however, an acronym for anything meaning-
ful.”); see generally id. (not disclosing any script corre-
sponding to the MOT script). As we have said in the
context of claim construction: “[The specification] is the sin-
gle best guide to the meaning of a disputed term.” Vitronics
Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir.
1996). And so it is here, as in many eligibility disputes.
See Cleveland Clinic Found. v. True Health Diagnostics
LLC, 760 F. App’x 1013, 1019–20 (Fed. Cir. 2019) (“There
is no reason to task the district court with finding an in-
ventive concept that the specification and prosecution his-
tory concede does not exist.” (citing Secured Mail Sols. LLC
v. Universal Wilde, Inc., 873 F.3d 905, 913 (Fed. Cir.
2017))).
In any case, we need not look far to discover the pinger
process; MyMail explains that it works as follows:
When the user connects to the Internet, the user’s
machine dispatches an initial pinger message to
the access service via the Internet. The pinger

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MYMAIL, LTD. v. OOVOO, LLC 4
message includes information such as the current
database revision levels. From this information,
the access service determines if the end-user’s de-
vice should receive updated toolbar data and, if so,
sends the updated toolbar data.
MyMail Br. 8 (citations and quotation marks omitted). In
other words, the pinger process consists of the idea of pro-
gramming a generic computer to send certain data (the
user’s current toolbar software version) to a predetermined
server at regular intervals in a conventional manner, and
then having the server return certain data (updated
toolbar software) in a conventional manner, when the
server determines the user’s toolbar version is out of date.
The pinger process is, as the Appellees argued, more or less
exactly what is claimed, and also undeniably an abstract
idea under this court’s precedent.
For these reasons, I dissent from the majority’s
decision to remand a case that should be affirmed.

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