Claims for Dynamically Rating Internet Content Deemed Patent-Ineligible

In a suit by Plaintiff Symantec Corp. ("Symantec") against Defendant Zscaler, Inc. ("Zscaler"), Symantec alleged that Zscaler's cloud-based security products infringe seven of Symantec's patents.  Zscaler moved to dismiss infringement claims for four of the patents, U.S. Patent Nos. 6,285,658 (the '658 patent), 7,587,488 (the '488 patent), 8,316,446 (the '446 patent), and 8,316,429 (the '429 patent), on grounds that the claims of the patents are directed to patent-ineligible subject matter under 35 U.S.C. § 101.  Earlier this month, Judge Jon S. Tigar of the U.S. District Court for the Northern District of California granted the motion in part, denied the motion in part as moot, and held the remainder of the motion in abeyance pending briefing on Symantec's assertion of assignor estoppel.

The '658 patent claims relate to a system for managing network bandwidth based on data contained in packets flowing in various Open Systems Interconnection (OSI) protocol layers (e.g., network layer, transport layer, and application layer).  The '488 patent claims relate to filtering and dynamically rating Internet content.  The '446 patent claims relate to a system for blocking unwanted software downloads.  And the '429 patent claims relate to extracting and categorizing encrypted Internet communications between clients and hosts servers without having to decrypt network traffic between those clients and host servers.

During pendency of the motion to dismiss, the parties stipulated to dismiss the infringement claims with respect to the '658 patent with prejudice, and thus the Court denied the motion with respect to the '658 patent as moot.  The Court also holds the motion in abeyance with respect to the '446 and '429 patents until the parties' cross-motions for partial summary judgement on the basis of assignor estoppel are resolved.  Additionally, the Court noted that it would not consider the motion with respect to the '429 patent because the PTAB recently instituted inter partes review of the asserted claims of that patent.

Thus, the Court only addressed patent eligibility with respect to the '488 patent.  Symantec asserted that both claims 1 and 12 of the '488 patent -- which recite similar language -- contain non-abstract and inventive concepts.  Claim 1 is provided as follows as a representative example:

1.  At a computer system, a method for dispatching an Internet-content identifier to a content-rating system, the method comprising:
    receiving an indication that at least one unrated Internet-content identifier is available to be rated;
    receiving an indication that one or more computerized content raters are available for rating the at least one unrated Internet-content identifier, wherein the computerized content raters include a plurality of content classifiers configured to rate content based on respective criteria;
    selecting an Internet-content identifier from among the at least one unrated Internet-content identifier based on content-identifier selection criteria;
    selecting one computerized content rater from among the one or more available computerized content raters to rate the selected unrated Internet-content identifier;
    transferring the selected Internet-content identifier to the selected available computerized content rater, wherein the selected Internet-content identifier identifies a portion of content; and
    dynamically determining a content category rating for the selected Internet-content identifier, wherein determining a content category rating comprises dynamically combining a rating for the selected Internet-content identifier with at least one of a rating for an Internet-content identifier identified within the portion of content for the selected Internet-content identifier and an Internet-content identifier for a portion of content that identifies the selected Internet-content identifier.

The background of the '488 patent suggests that existing approaches for Internet content filtering suffer from accuracy issues and other problems.  For example, a rating of a given website coming from a single rating source might be inaccurate.  The patent also notes that existing approaches primarily used blocked lists of content categories, and so website operators who did not want their websites blocked would circumvent filters by varying their URLs or by including non-blocked content.  The patent thus purports to dynamically filter Internet content by dynamically combining multiple different ratings of that content.  As an example, the patent describes how content raters can employ a variety of different classifiers, each configured to "rate content based on different criteria and/or algorithms," and thus, at a high level, the claimed invention can filter Internet content by using a combination of such ratings.

With respect to step one of the Alice test, Zscaler argued that the claims are abstract because they merely describe filtering Internet content.  The Court agreed, citing primarily to the Federal Circuit's decision in BASCOM, in which the Federal Circuit upheld a district court's determination that "claims were directed to the abstract idea of 'filtering content' because 'content provided on the Internet is not fundamentally different from content observed, read, and interacted with through other mediums like books, magazines, television, or movies.'"  The Court also reiterated that filtering content has long been viewed as a well-known manner of organizing human behavior.  As to the claimed concept of dynamically combining ratings for Internet content, the Court stated that the dynamic nature of the recited functions did not save the claims from abstraction, and that "organizing existing information into a new form or employing mathematical algorithms to manipulate information and generate additional information" is not patent-eligible.

The Court also found the claims to lack inventiveness under step two of the Alice test.  In its defense, Symantec primarily argued that the dynamic nature of rating content recited by the claims provided an improvement over the static, list-based systems of the prior art.  But the Court found this argument unavailing, asserting that "nowhere does the patent describe how this more accurate, non-list-based filtering occurs.  Instead, the claim language reflects that dynamically rating simply means combining several ratings into one."  (As an aside, I assume one can reasonably appreciate that a rating from a single source could be biased, and thus less accurate than a rating that takes into account multiple different sources, but I doubt that notion would have persuaded the Court in any fashion.)

With no more definition in the '488 patent as to the dynamic nature of rating content, the Court and Zscaler likened the idea of combining ratings into one as merely being directed to aggregating multiple data sets.  In fact, the Court even went as far to suggest that the patent does not describe any improvement whatsoever:

[T]he patent may not even describe an improvement.  The specification admits that the prior art included "automated and/or server-based approaches to Internet content filtering" which "constant[ly] updat[ed]" the applicable "list of content categories and . . . approved and non-approved sites" [citation omitted].  The patent is silent as to any differences between dynamic rating and automatic rating.  . . .  Nor does the patent explain how dynamic, non-list-based rating accomplishes more than automatic, continually updated filtering.

Symantec also attempted to argue that the claimed system's alleged scalability made it inventive, but the Court was not convinced by this either.  The specification describes that multiple content-rating machines could be simultaneously connected to the claimed system, thus allowing for scalability (e.g., by adjusting the quantity of raters based on demand).  Still, the Court asserted that the specification does not describe this kind of scalability as an improvement over the prior art, and thus concluded that "it cannot serve as the inventive concept."

Ultimately, neither the claims nor the specification of the '488 patent conveyed improvements over the prior art to a degree sufficient for patent-eligibility.

Symantec Corp. v. Zscaler, Inc. (N.D. Cal. 2018)
Order Granting in Part and Denying in Part Motion to Dismiss by District Judge Tigar