United States District Court, D. Delaware
For Priceplay.com, Inc., Plaintiff: Richard D. Kirk, Esq., Stephen B. Brauerman, Esq., Vanessa R. Tiradentes, Esq., Sara E. Bussiere, Esq., BAYARD, P.A., Wilmington, DE; Scott M. Daniels, Esq. (argued), Darrin A. Auito, Esq., WESTERMAN HATTORI DANIELS & ADRIAN, Washington, DC.
For AOL Advertising, Inc., Defendant: David E. Moore, Esq., Bindu A. Palapura, Esq., POTTER ANDERSON & CORROON LLP, Wilmington, DE; George F. Pappas, Esq., Thomas L. Cubbage, III, Esq., Peter A. Swanson, Esq. (argued), Sangjoon Han, Esq., COVINGTON & BURLING LLP, Washington, DC.
Richard G. Andrews, United States District Judge.
Presently before the Court is AOL's Motion to Dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (D.I. 27). The motion has been fully briefed (D.I. 28, 32 & 33), and oral argument was held on October 27, 2014. (D.I. 43). Prior to oral argument, the Court issued an oral order directing Priceplay to submit proposed claim constructions. (D.I. 35). Priceplay submitted its proposed claim constructions on October 17, 2014. (D.I. 38). During oral argument, both parties agreed that Priceplay's proposed constructions did not affect either party's arguments regarding the Motion to Dismiss. (D.I. 43 at 5:12--21). For the reasons set forth herein, AOL's Motion to Dismiss is granted with regard to all of the claims in the '982 and '917 patents.
Priceplay filed the current action on January 22, 2014, alleging patent infringement of U.S. Patent Nos. 8,050,982 (" the '982 patent" ) and 8,494,917 (" the '917 patent" ). (D.I. 1). The abstract of the '982 patent describes the invention as: " [a] business process . . . for conducting business transactions over the Internet, allowing buyers an opportunity to reduce the price of a product/service based on the buyer's performance during a Price-Determining-Activity (PDA)." (D.I. 1-1 at 2). The '982 specification provides that " [t]he present invention comprises a business model used to determine the price of goods and/or services" ( Id. at 6, 2:23--25) where:
Sellers offer a product or service within a specified price range, and buyers enter into a contract to buy the product or service within that price range. The ultimate price (within the range) is determined based upon the buyer's performance rating, or score, which the buyer receives from participating in a collateral activity.
(Id. at 6,2:28-33). The collateral activity " may be a video game (including audio/visual games), electronic board game, crossword puzzle or other word game, sports bet, card game, or any other activity or combination of activities . . . ." ( Id. at 6, 2:36--39).
During oral argument, Priceplay informed the Court that it would focus its argument on claim 1 of the '982 patent (D.I. 43 at 24:17--18), which it believes to be representative of the asserted claims. (Id. at 24:7--9). I agree that claim 1 of the '982 patent is representative:
A system comprising multiple databases accessible by at least one computer server, wherein the system is programmed to perform the steps of a sales transaction, the steps comprising:
communicating via the global communication network to a buyer;
receiving data representing a binding commitment from the buyer via the global communication network to purchase a product for a price that will be partially based upon the buyer's participation in an auction and participation in a competitive activity that is in addition to placing bids in the auction and that is collateral to the price and associated with the product being purchased;
wherein the competitive activity is required as part of the sales transaction; and
using an algorithm to calculate the price of the product based at least partially upon the results of the participation of the buyer in the competitive activity and at least partially based on results of the auction; wherein the price is at least ...