Key Points

  • The Federal Circuit affirmed the Rule 12(b)(6) dismissal with prejudice of Craig L. Linden's infringement suit against three ResMed entities over U.S. Patent No. 9,639,150.
  • The panel held Linden waived his challenge to treating Claim 1 as representative because he had not raised it below and his counsel had told the district court that Claim 1 is representative.
  • At Alice step one, the panel held Claim 1 is directed to an abstract idea, a remote version of an in-person doctor visit carried out with generic hardware.
  • At Alice step two, the panel held that conclusory allegations in the amended complaint, and allegations lacking technical detail, did not create a factual dispute precluding dismissal.
  • The panel held that unclaimed features such as "device-level control" and "therapeutic execution" could not supply an inventive concept, quoting American Axle & Manufacturing v. Neapco Holdings.

A federal appeals court on Oct. 16 upheld the dismissal of a patent owner's infringement suit against ResMed, holding that a patent on treating a patient through a remote audio-video conference and two connected devices claims an abstract idea that cannot be patented.

A U.S. Court of Appeals for the Federal Circuit panel of Circuit Judges Reyna, Bryson and Hughes affirmed a ruling by Judge James E. Simmons, Jr., of the Southern District of California, who had thrown out Craig L. Linden's amended complaint with prejudice. The unsigned per curiam decision is designated nonprecedential. The panel agreed with Judge Simmons that the patent's main claim "simply describes 'a remote version' of an in-person doctor visit, a type of conventional organized human activity."

The ruling ends Linden's case at the pleading stage. Under Federal Circuit precedent, a judge may decide patent eligibility on a motion to dismiss "only when there are no factual allegations that, taken as true, prevent resolving the eligibility question as a matter of law." The panel held that allegations Linden added to his complaint did not create such a dispute.

Linden owns U.S. Patent No. 9,639,150, titled "Powered Physical Displays on Mobile Devices," which issued on May 2, 2017. According to the opinion, the patent describes interactive powered displays that, in some versions, "deliver[] physical motion and actions similar to human-to-human gestures, such as hugging, hand-holding, hand squeezes, etc." The claims are narrower and cover using such a display to treat patients.

Claim 1, the patent's only independent claim, recites a method in which a networked mobile device with a physical output display and an input transducer sits with the patient and a second device sits with a remote treatment provider. The provider questions the patient over an audio-video conference, the patient's device measures at least one vital sign, and the provider forms a diagnosis and sends a signal back that causes "a physical interaction between the physical output display and the patient."

Linden sued ResMed Inc., ResMed Corp. and ResMed Holdings Pty Ltd. in 2024. ResMed moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal of a complaint that fails to state a claim, arguing the asserted claims were ineligible under Section 101. Judge Simmons granted the motion with leave to amend, then dismissed the amended complaint with prejudice, writing that "[d]espite the quantity of added allegations, many of the additional paragraphs are simply conclusory that features of the claimed invention are not well known or routine."

The Federal Circuit applied the two-step test the Supreme Court set out in Alice Corp. v. CLS Bank International in 2014. A court first asks whether a claim is "directed to" an abstract idea. If it is, the court asks whether the claim contains an "inventive concept," meaning something "significantly more" than the abstract idea itself.

Before reaching that test, the panel rejected Linden's argument that the district court erred by treating Claim 1 as representative of all the asserted claims. Linden had not raised that objection below, and the panel noted that his counsel told the district court, "Claim 1, we agree, is representative. That's true." The panel wrote: "We reject Mr. Linden's about-face on appeal and conclude that this argument is waived."

At step one, Linden argued that his claims were directed to a "specific technological system" requiring a "concrete technological architecture." The panel said Claim 1 requires only that the patient's device be "internet and networking capable" and include a display and a transducer, and that "[t]he claim does not address the structure of the second 'electronic device' at all." The panel also pointed to the specification, which describes adding "communications or remote control capabilities to known devices."

The panel likewise rejected Linden's contention that the method improves "the technological operation of network-connected medical devices by enabling real-time, bidirectional control and execution of patient-specific therapy." The court wrote that "Mr. Linden does not describe what, if any, advancements to computing devices are encompassed by Claim 1." It added that the Federal Circuit "has routinely affirmed the ineligibility of claims directed to similar conventional organized human activities being performed remotely."

At step two, Linden invoked the Federal Circuit's 2016 Bascom decision, which held that an inventive concept can lie in a non-conventional arrangement of known parts. He argued that the combination of capturing patient data, transmitting it, receiving remote control signals and carrying them out through a powered device met that standard. The panel said his description of the combination "is a mere restatement of the abstract idea," because "[e]ach of these steps goes directly to the idea of remotely treating a patient."

The panel then reviewed Paragraphs 29 through 38 of the amended complaint. It held that the paragraphs alleging the combination was not conventional were conclusory and entitled to no weight under the Supreme Court's decision in Ashcroft v. Iqbal. The remaining paragraphs, the panel agreed with the district court, "lack technical details on how to achieve the[] alleged improvements," a gap the panel called "wholly consistent with the lack of technical details provided in the '150 patent itself."

Linden also argued that his claimed elements were arranged in "a specific configuration that enables device-level control and therapeutic execution." The panel noted that neither phrase appears in the claims or specification. It quoted its 2020 decision in American Axle & Manufacturing v. Neapco Holdings: "[W]e have repeatedly held that features that are not claimed are irrelevant as to step 1 or step 2 of the Mayo/Alice analysis."

Linden represented himself on appeal. ResMed was represented by Lisa K. Nguyen of Paul Hastings LLP.

The panel found Linden's remaining arguments unpersuasive. Its affirmance leaves in place the district court's dismissal of the suit with prejudice.