Case: 19-1587    Document: 57     Page: 1   Filed: 05/14/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

          ELECTRONIC COMMUNICATION
              TECHNOLOGIES, LLC,
                Plaintiff-Appellant

                             v.

            SHOPPERSCHOICE.COM, LLC,
                  Defendant-Appellee
                ______________________

                        2019-1587
                  ______________________

    Appeal from the United States District Court for the
 Southern District of Florida in No. 9:16-cv-81677-KAM,
 Senior Judge Kenneth A. Marra.
                 ______________________

                  Decided: May 14, 2020
                  ______________________

      ARTOUSH OHANIAN, I, OhanianIP, Austin, TX, for plain-
 tiff-appellant.

     DAVID K. FRIEDLAND, Friedland Vining, PA, Miami, FL,
 for defendant-appellee.    Also represented by JAMES
 STEPAN, Law Offices of James A. Stepan, P.A., Hollywood,
 FL.
                  ______________________
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 2    ELECTRONIC COMMUNICATION    v. SHOPPERSCHOICE.COM, LLC



     Before PROST, Chief Judge, DYK and WALLACH, Circuit
                           Judges.
 PROST, Chief Judge.
     Electronic Communication Technologies, LLC (“ECT”)
 sued ShoppersChoice.com, LLC (“ShoppersChoice”), alleg-
 ing that ShoppersChoice infringed claim 11 of U.S. Patent
 No. 9,373,261 (“the ’261 patent”). The district court
 granted ShoppersChoice’s motion for judgment on the
 pleadings that claim 11 was invalid under 35 U.S.C. § 101.
     ECT appeals. We have jurisdiction over this appeal un-
 der 28 U.S.C. § 1295(a)(1). For the reasons stated below,
 we affirm.
                         BACKGROUND
     The ’261 patent is titled “Secure Notification Messag-
 ing with User Option to Communicate with Delivery or
 Pickup Representative.” ’261 patent title. Claim 11 re-
 cites:
      11. An automated notification system, comprising:
      one or more transceivers designed to communicate
      data;
      one or more memories;
      one or more processors; and
      computer program code stored in the one or more
      memories and executed by the one or more proces-
      sors, the computer program code comprising:
      code that enables a first party associated with a
      personal communication device (PCD) to input or
      select authentication information for use in connec-
      tion with a subsequent notification communication
      session involving advance notice of a delivery or
      pickup of a good or service at a stop location by a
      mobile thing (MT);
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 ELECTRONIC COMMUNICATION     v. SHOPPERSCHOICE.COM, LLC      3



     code that causes storage of the authentication in-
     formation;
     code that monitors location or travel information in
     connection with the MT;
     code that causes initiation of the notification com-
     munication session to the PCD with the one or
     more transceivers, in advance of arrival of the MT
     at the stop location, based at least in part upon the
     location or travel information associated with the
     MT;
     code that, during the notification communication
     session, provides the authentication information to
     the PCD that indicates to the first party that the
     notification communication session was initiated
     by an authorized source; and
     code that, during the notification communication
     session, enables the first party to select whether or
     not to engage in a communication session with a
     second party having access to particulars of the
     pickup or delivery.
 ’261 patent claim 11.
     ShoppersChoice filed a motion for judgment on the
 pleadings that claim 11 is ineligible under § 101, which the
 district court granted. The district court found that
 “claim 11 is directed to the abstract idea of providing ad-
 vance notification of the pickup or delivery of a mobile
 thing.” Elec. Commc’n Techs., LLC v. ShoppersChoice.com,
 LLC, No. 16-81677-CIV-MARRA, 2019 U.S. Dist. LEXIS
 10042, slip op. at 6 (S.D. Fla. Jan. 18, 2019) (“District Court
 Opinion”). The court explained “business practices de-
 signed to advise customers of the status of delivery of their
 goods have existed at least for several decades, if not
 longer.” Id. at 7 (quoting Mobile Telecomms. Techs., LLC
 v. United Parcel Serv., Inc., 173 F. Supp. 3d 1324, 1331
 (N.D. Ga. 2016), aff’d, 708 F. App’x 684 (Fed. Cir. 2018)).
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 4   ELECTRONIC COMMUNICATION       v. SHOPPERSCHOICE.COM, LLC



 The district court further concluded that claim 11 does not
 include an inventive concept. Id. at 10–11. The court rea-
 soned that “[t]he claim recites generic computer compo-
 nents that can be configured to perform purely
 conventional computer functions.” Id. at 11.
     ECT appealed.
                          DISCUSSION
     Patent eligibility under § 101 is an issue of law that
 sometimes contains underlying issues of fact. See Berk-
 heimer v. HP Inc., 881 F.3d 1360, 1365 (Fed. Cir. 2018).
 The Supreme Court has laid out a two-step framework for
 evaluating patent eligibility. Alice Corp. v. CLS Bank Int’l,
 573 U.S. 208, 217 (2014); Mayo Collaborative Servs. v. Pro-
 metheus Labs., Inc., 566 U.S. 66, 70–73 (2012). First, we
 determine whether a patent claim is directed to an un-
 patentable law of nature, natural phenomena, or abstract
 idea. Alice, 573 U.S. at 217. If so, we then determine
 whether the claim nonetheless includes an “inventive con-
 cept” sufficient to “‘transform the nature of the claim’ into
 a patent-eligible application.” Id. (quoting Mayo, 566 U.S.
 at 72, 78).
                                I
      We begin our analysis with step one of the two-step
 framework. We agree with the district court that claim 11
 of the ’261 patent is directed to the abstract idea of “provid-
 ing advance notification of the pickup or delivery of a mo-
 bile thing.” District Court Opinion, at 6. Claim 11 recites
 conventional computer components and “computer pro-
 gram code” that, as both the district court explained in its
 opinion and ECT explained in its briefing,
     (1) enables a first party to input authentication in-
     formation; (2) stores the authentication infor-
     mation; (3) monitors the location of a mobile things;
     (4) initiates notification to the first party in ad-
     vance of arrival of the mobile thing based in part
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 ELECTRONIC COMMUNICATION     v. SHOPPERSCHOICE.COM, LLC      5



     on the location of the mobile thing; (5) provides the
     authentication information to the first party; and
     (6) enables the party to select whether or not to
     communicate with a second party having access to
     particulars of the pickup or delivery.
 District Court Opinion, at 2; ECT’s Opening Br. 4–5. Two
 of the six identified functions—monitoring the location of a
 mobile thing and notifying a party in advance of arrival of
 that mobile thing—amount to nothing more than the fun-
 damental business practice of providing advance notifica-
 tion of the pickup or delivery of a mobile thing. As the
 district court correctly noted, “business practices designed
 to advise customers of the status of delivery of their goods
 have existed at least for several decades, if not longer.” Id.
 at 7 (quoting Mobile Telecomms. Techs., 173 F. Supp. 3d at
 1331).
     Although claim 11 also recites added measures that
 purport to increase security—namely, enabling a first
 party to input authentication information, storing the au-
 thentication information, and providing the authentication
 information along with the advance notice of arrival to help
 ensure the customer that the notice was initiated by an au-
 thorized source—those claimed functions are also abstract.
 As the patent specification explains, the “authentication
 information” can be essentially any information recogniza-
 ble to the party being contacted, “for example but not lim-
 ited to, any of the following: a logo, trademark, coat of
 arms, symbol, pre-defined symbol or text or numeric code
 that has been made or known to or selected by the party
 being contacted, specific sound or sounds or music, . . . a
 telephone number that can be called to verify the notifica-
 tion, . . . part of a credit card number, such as the last four
 digits, [or] an image of a signature, such as the signature
 of the notified party.” ’261 patent col. 61 ll. 42–55. Busi-
 nesses have long been supplying customers with order
 numbers and recording customer information—such as the
 client’s name, address, credit card number, and telephone
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 6   ELECTRONIC COMMUNICATION     v. SHOPPERSCHOICE.COM, LLC



 number—as well as including such information in subse-
 quent communications with that particular customer.
      Claims, like claim 11, that are directed to longstanding
 commercial practices do not pass step one of the two-part
 § 101 test. See, e.g., Alice, 573 U.S. at 219–20 (concluding
 claims “drawn to the concept of intermediated settlement”
 were directed to an abstract idea at step one because inter-
 mediated settlement is “a longstanding commercial prac-
 tice”); Bilski v. Kappos, 561 U.S. 593, 611 (2010)
 (concluding claims drawn to “the basic concept of hedging”
 were directed to an abstract idea because “[h]edging is a
 fundamental economic practice long prevalent in our sys-
 tem of commerce” (internal citations and quotation marks
 omitted)); see also, e.g., Intellectual Ventures I LLC v. Erie
 Indem. Co., 850 F.3d 1315, 1327 (Fed. Cir. 2017) (conclud-
 ing claims were directed to an abstract idea because the
 claimed “activity, i.e., organizing and accessing records
 through the creation of an index-searchable database, in-
 cludes longstanding conduct that existed well before the
 advent of computers and the Internet”); Intellectual Ven-
 tures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
 1369–70 (Fed. Cir. 2015) (concluding claims related to tai-
 loring advertisements according to the time of day were di-
 rected to an abstract idea because that practice had been
 “long-practiced in our society”); buySAFE, Inc. v. Google,
 Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (concluding
 claims were directed to an abstract idea because the claims
 were “squarely about creating a contractual relationship—
 a ‘transaction performance guaranty’—that is beyond ques-
 tion of ancient lineage” (quoting Willis D. Morgan, The His-
 tory and Economics of Suretyship, 12 Cornell L.Q. 153
 (1927))). In addition, the process of recording authentica-
 tion information—such as the customer’s name, address,
 and telephone number—and including that information in
 a subsequent communication with the customer is abstract
 not only because it is a longstanding commercial practice,
 but also because it amounts to nothing more than
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 ELECTRONIC COMMUNICATION     v. SHOPPERSCHOICE.COM, LLC      7



 gathering, storing, and transmitting information. See, e.g.,
 Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353–
 54 (Fed. Cir. 2016) (concluding claims relating to collecting,
 analyzing, and displaying information were directed to an
 abstract idea, even “when limited to particular content,”
 because such limitation “does not change its character as
 information”). Indeed, including previously stored infor-
 mation in a subsequent communication is quite unlike the
 “improvement[s] in computer capabilities” that we have
 found eligible for patenting at step one. See, e.g., Enfish,
 LLC v. Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir.
 2016).
      ECT’s arguments are unpersuasive. For example, ECT
 argues that claim 11 of the ’261 patent is not directed to an
 abstract idea because it is “unique” in that it “is directed
 toward and addresses solutions to minimize hacker’s im-
 pacts when mimicking order conversations and shipment
 notification emails.” See, e.g., ECT’s Opening Br. 12.
 ECT’s argument fails. “We may assume that the tech-
 niques claimed are ‘[g]roundbreaking, innovative, or even
 brilliant,’ but that is not enough for eligibility.” SAP Am.,
 Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018)
 (quoting Ass’n for Molecular Pathology v. Myriad Genetics,
 Inc., 569 U.S. 576, 591 (2013)). Thus, even taking as true
 that claim 11 is “unique,” that alone is insufficient to confer
 patent eligibility. Moreover, the purported uniqueness of
 claim 11—i.e., how the claims purportedly increase secu-
 rity—is itself abstract for the reasons stated previously.
     ECT also argues that claim 11 is patent eligible under
 § 101 due to three aspects of the patent’s prosecution his-
 tory: (1) that the application that ultimately became the
 ’261 patent “sailed through” the United States Patent and
 Trademark Office (“USPTO”) by receiving an allowance in
 the very first Office action; (2) that ECT “obtained the ’261
 patent with complete and total transparency”; and (3) that
 ECT requested the USPTO to “double-check” its work on
 § 101 after ECT received the notice of allowance, upon
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 8   ELECTRONIC COMMUNICATION       v. SHOPPERSCHOICE.COM, LLC



 which the USPTO reconfirmed its finding that the claims
 were patent eligible. ECT Opening Br. 6–10, 12–15, 17.
     ECT’s argument is unavailing. These specific details
 relating to the procedure of prosecution before the USPTO
 bear no relationship to the subject matter to which
 claim 11 is directed and do not negate the fact that claim 11
 is directed to longstanding business practices. Nor do
 ECT’s purported diligence and good faith during patent
 prosecution before the USPTO in any way shield the pa-
 tent’s claims from Article III review for patent eligibility.
     Accordingly, we conclude, as did the district court, that
 claim 11 is directed to an abstract idea.
                               II
     Next, we address step two of the framework and con-
 clude that the claims do not include an inventive concept
 sufficient to transform the claimed abstract idea into a pa-
 tent eligible application. Because claim 11 is specified at a
 high level of generality, is specified in functional terms,
 and merely invokes well-understood, routine, conventional
 components and activity to apply the abstract idea identi-
 fied previously, see, e.g., ’261 patent claim 11; J.A. 576,
 581–83, claim 11 fails at step two, see, e.g., Alice, 573 U.S.
 at 225–26; Mayo, 566 U.S. at 73; see also, e.g., Elec. Power
 Grp., 830 F.3d at 1355 (concluding patent claims were in-
 eligible under § 101 in part because “[n]othing in the
 claims, understood in light of the specification, requires an-
 ything other than off-the-shelf, conventional computer,
 network, and display technology for gathering, sending,
 and presenting the desired information”).
      ECT’s arguments are unpersuasive. ECT argues that
 “[i]n Amdocs, this court held a far shorter, far less enabled
 claim valid.” ECT’s Opening Br. 17. As an initial matter,
 patent eligibility turns on the content of the claims, not
 merely on the number of words recited in the claims. In
 addition, just because a patent claim is enabled does not
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 ELECTRONIC COMMUNICATION     v. SHOPPERSCHOICE.COM, LLC     9



 mean that the claim is patent eligible—subject matter eli-
 gibility and enablement are separate inquiries, irrespec-
 tive of any overlap between the two. In any event, this case
 is unlike Amdocs. There, “th[e] claim entail[ed] an uncon-
 ventional technological solution (enhancing data in a dis-
 tributed fashion) to a technological problem (massive
 record flows which previously required massive data-
 bases).” Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841
 F.3d 1288, 1300 (Fed. Cir. 2016). Here, the claim only en-
 tails applying longstanding commercial practices using ge-
 neric computer components and technology; such claims
 are ineligible under § 101. See, e.g., Alice, 573 U.S. at 225–
 26; Mayo, 566 U.S. at 73.
      Finally, ECT asserts in conclusory fashion that the dis-
 trict court should have engaged in claim construction be-
 fore deciding claim 11’s eligibility under § 101. ECT has
 not identified a single claim term that it believes requires
 construction before the eligibility of claim 11 can be de-
 cided, much less how this construction could affect the
 analysis. Under such circumstances, and on the basis of
 our review of claim 11, we conclude that the district court
 properly resolved patent eligibility at the pleadings stage
 of the proceedings. See, e.g., Cleveland Clinic Found. v.
 True Health Diagnostics LLC, 859 F.3d 1352, 1360 (Fed.
 Cir. 2017) (explaining that “we have repeatedly affirmed
 § 101 rejections at the motion to dismiss stage, before claim
 construction or significant discovery has commenced,” and
 concluding that “it was appropriate for the district court to
 determine that the [asserted] patents were ineligible under
 § 101 at the motion to dismiss stage” where the patentee
 “provided no proposed construction of any terms or pro-
 posed expert testimony that would change the § 101 anal-
 ysis”).
                         CONCLUSION
     We have considered ECT’s remaining arguments and
 find them unpersuasive. In view of the foregoing, the
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 10 ELECTRONIC COMMUNICATION v. SHOPPERSCHOICE.COM, LLC



 judgment of the United States District Court for the South-
 ern District of Florida is affirmed.
                       AFFIRMED
