MEMORANDUM OPINION

ROBINSON, District Judge.

I. INTRODUCTION

On March 25, 2015, plaintiff Improved Search LLC ("plaintiff") filed a complaint alleging infringement of U.S. Patent No. 6,604,101 ("the '101 patent") and 7,516,154 ("the '154 patent") against defendant AOL Inc. ("defendant"). (D.l.1) Presently before the court is defendant's motion to dismiss. (D.l.9) The court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a).

II. BACKGROUND

Plaintiff is a limited liability company organized under the laws of the State of Florida with its principal place of business in Fort Lauderdale, Florida. (D.l. 1 at ¶ 4) Defendant is a corporation organized under the laws of the State of Delaware with its headquarters in New York, New York. (D.l. 1 at ¶ 6) The '101 patent, titled "Method and System for Translingual Translation of Query and Search and Retrieval of Multilingual Information on a Computer Network," was filed on June 28, 2000 and issued August 5, 2003. The '154 patent, titled "Cross Language Advertising," was filed on February 8, 2006 and issued on April 7, 2009. Plaintiff accuses the "AOL Search" service of infringing claims 1, 2, 4, 5, 24, 25, and 27 of the '101 patent and claim 1 of the '154 patent. (D.l. 1 at ¶¶ 27, 37)

III. STANDARD OF REVIEW

A motion filed under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint's factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Twombly, 550 U.S. at 545, 127 S.Ct. 1955 (internal quotation marks omitted) (interpreting Fed.R.Civ.P. 8(a)). Consistent with the Supreme Court's rulings in Twombly and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Third Circuit requires a two-part analysis when reviewing a Rule 12(b)(6) motion. Edwards v. A.H. Cornell & Son, Inc., 610 F.3d 217, 219 (3d Cir.2010); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009). First, a court should separate the factual and legal elements of a claim, accepting the facts and disregarding the legal conclusions. Fowler, 578 F.3d at 210-11. Second, a court should determine whether the remaining well-pled facts sufficiently show that the plaintiff "has a `plausible claim for relief.'" Id. at 211 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). As part of the analysis, a court must accept all well-pleaded factual allegations in the complaint as true, and view them in the light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Christopher v. Harbury, 536 U.S. 403, 406, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002); Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir.2008). In this regard, a court may consider the pleadings, public record, orders, exhibits attached to the complaint, and documents incorporated into the complaint by reference. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384-85 n. 2 (3d Cir.1994).

The court's determination is not whether the non-moving party "will ultimately prevail" but whether that party is "entitled to offer evidence to support the claims." United States ex rel. Wilkins v. United Health Grp., Inc., 659 F.3d 295, 302 (3d Cir.2011). This "does not impose a probability requirement at the pleading stage," but instead "simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of [the necessary element]." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The court's analysis is a context-specific task requiring the court "to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 663-64, 129 S.Ct. 1937.

IV. DISCUSSION

A. 35 U.S.C. § 101

Section 101 provides that patentable subject matter extends to four broad categories, including: "new and useful process[es], machine[s], manufacture, or composition[s] of matter." 35 U.S.C. § 101; see also Bilski v. Kappos, 561 U.S. 593, 601, 130 S.Ct. 3218, 177 L.Ed.2d 792 (2010) ("Bilski II"); Diamond v. Chakrabarty, 447 U.S. 303, 308, 100 S.Ct. 2204, 65 L.Ed.2d 144 (1980). A "process" is statutorily defined as a "process, art or method, and includes a new use of a known process, machine manufacture, composition of matter, or material." 35 U.S.C. § 100(b). The Supreme Court has explained:

Diamond v. Diehr, 450 U.S. 175, 182-83, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981) (internal quotations omitted).

The Supreme Court recognizes three "fundamental principle" exceptions to the Patent Act's subject matter eligibility requirements: "laws of nature, physical phenomena, and abstract ideas." Bilski II, 561 U.S. at 601, 130 S.Ct. 3218. In this regard, the Court has held that "[t]he concepts covered by these exceptions are `part of the storehouse of knowledge of all men... free to all men and reserved exclusively to none.'" Bilski II, 561 U.S. at 602, 130 S.Ct. 3218 (quoting Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130, 68 S.Ct. 440, 92 L.Ed. 588 (1948)). "[T]he concern that drives this exclusionary principle is one of pre-emption," that is, "`that patent law not inhibit further discovery by improperly tying up the future use of these building blocks of human ingenuity." Alice Corp. Pty. Ltd. v. CLS Bank Int'l, ___ U.S. ___, 134 S.Ct. 2347, 2354, 189 L.Ed.2d 296 (2014) (citing Bilski II, 561 U.S. at 611-12, 130 S.Ct. 3218 and Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. ___, 132 S.Ct. 1289, 1301, 182 L.Ed.2d 321 (2012)).

Although a fundamental principle cannot be patented, the Supreme Court has held that "an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection," so long as that application would not preempt substantially all uses of the fundamental principle. Bilski II, 561 U.S. at 611, 130 S.Ct. 3218 (quoting Diehr, 450 U.S. at 187, 101 S.Ct. 1048) (internal quotations omitted); In re Bilski, 545 F.3d 943, 954 (Fed.Cir.2008) ("Bilski I"). The Court has described the

Alice, 134 S.Ct. at 2355 (citing Mayo, 132 S.Ct. at 1294, 1296-98).1

"[T]o transform an unpatentable law of nature into a patent-eligible application of such a law, one must do more than simply state the law of nature while adding the words `apply it.'" Mayo, 132 S.Ct. at 1294 (citing Gottschalk v. Benson, 409 U.S. 63, 71-72, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972)) (emphasis omitted). It is insufficient to add steps which "consist of well-understood, routine, conventional activity," if such steps, "when viewed as a whole, add nothing significant beyond the sum of their parts taken separately." Mayo, 132 S.Ct. at 1298. "Purely `conventional or obvious' `[pre]-solution activity' is normally not sufficient to transform an unpatentable law of nature into a patent-eligible application of such a law." Id. (citations omitted). Also, the "prohibition against patenting abstract ideas `cannot be circumvented by attempting to limit the use of the formula to a particular technological environment' or adding `insignificant post-solution activity.'" Bilski II, 561 U.S. at 610-11, 130 S.Ct. 3218 (citation omitted). For instance, the "mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention." Alice, 134 S.Ct. at 2358. "Given the ubiquity of computers, wholly generic computer implementation is not generally the sort of `additional featur[e]' that provides any `practical assurance that the process is more than a drafting effort designed to monopolize the [abstract idea] itself.'" Id. (citations omitted).

Because computer software comprises a set of instructions,2 the first step of Alice is, for the most part, a given; i.e., computer-implemented patents generally involve abstract ideas. The more difficult part of the analysis is subsumed in the second step of the Alice analysis, that is, determining whether the claims "merely recite the performance of some business practice known from the pre-Internet world along with the requirement to perform it on the Internet," or whether the claims are directed to "a problem specifically arising in the realm of computer technology" and the claimed solution specifies how computer technology should be manipulated to overcome the problem. DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed.Cir.2014).

In DDR, for example, the claims at issue involved computer technology directed at retaining website visitors.3 In its analysis, the Federal Circuit rejected the notion that the pre-Internet analog to the claims at issue ended the inquiry, explaining that while

773 F.3d at 1258. In other words, "[a]lthough the claims address[ed] a business challenge ..., it [was] a challenge particular to the Internet." Id. at 1257. The Court concluded that, under any of the characterizations of the abstract idea, the claims satisfied step two of Alice as being

Id. at 1258-59 (citing Alice, 134 S.Ct. at 2359; Ultramercial, 772 F.3d 709, 714-16 (Fed.Cir.2014); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed.Cir.2014); Accenture Global Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1344-45 (Fed.Cir.2013); Bancorp, 687 F.3d at 1277-78); but see Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1331-35 (Fed.Cir.2012).

In DDR, the analytical framework (in the context of computer-implemented inventions) was articulated so as to require that the inventive concept "recite a specific way" to solve a "particular Internet-centric problem," with the claimed solution being "necessarily rooted in computer technology," so that the result "is not merely the routine or conventional use of the Internet." 773 F.3d at 1257, 1259. Since providing that explanation, the Federal Circuit has not preserved the validity of any other computer-implemented invention under § 101.4 For instance, in Intellectual Ventures, a case that also presented claims directed at websites,5 the Court explained that, "[a]t step one of the Alice framework, it is often useful to determine the breadth of the claims in order to determine whether the claims extend to cover a "`fundamental... practice long prevalent in our system.'" Intellectual Ventures, 792 F.3d at 1369 (citing Alice, 134 S.Ct. at 2356). The Court characterized the claims at issue as relating to "customizing information based on (1) information known about the user and (2) navigation data." Id. Likening "[t]his sort of information tailoring" to "providing different newspaper inserts based upon the location of the individual," id. the Court concluded that the first aspect of the inventive concept was an abstract idea. The second aspect of the inventive concept, using "navigation data (i.e., information relating to when the user navigated to the website) to `customize' the website," id. the Court again concluded that "[t]ailoring information based[, e.g.,] on the time of day of viewing is also an abstract, overly broad concept long-practiced in our society." Id. at 1370.6

Turning to the second step of Alice, the Intellectual Ventures Court concluded that the claims at issue presented no inventive concept "that would support patent eligibility."7 Id. at 1370. The Federal Circuit explained:

Id. at 1370-71. In distinguishing DDR, the Intellectual Ventures Court offered the following analysis:

Id. at 1371 (citations omitted).

In reviewing post-Alice cases such as DDR and Intellectual Ventures, the court is struck by the evolution of the § 101 jurisprudence, from the complete rejection of patentability for computer programs9 to the almost complete acceptance of such,10 to the current (apparent) requirements that the patent claims in suit (1) disclose a problem "necessarily rooted in computer technology," and (2) claim a solution that (a) not only departs from the "routine and conventional" use of the technology, but (b) is sufficiently specific so as to negate the risk of pre-emption. See DDR, 773 F.3d at 1257; Intellectual Ventures, 792 F.3d at 1371. In other words, even though most of the patent claims now being challenged under § 101 would have survived such challenges if mounted at the time of issuance, these claims are now in jeopardy under the heightened specificity required by the Federal Circuit post-Alice. Moreover, it is less than clear how a § 101 inquiry that is focused through the lens of specificity can be harmonized with the roles given to other aspects of the patent law (such as enablement under § 112 and non-obviousness under § 103),11 especially in light of the Federal Circuit's past characterization of § 101 eligibility as a "coarse" gauge of the suitability of broad subject matter categories for patent protection. Research Corp. Techs., Inc. v. Microsoft Corp., 627 F.3d 859, 869 (Fed.Cir.2010). Given the evolving state of the law, the § 101 analysis should be, and is, a difficult exercise.12 At their broadest, the various decisions of the Federal Circuit13 would likely ring the death-knell for patent protection of computer-implemented inventions,14 a result not clearly mandated (at least not yet). On the other hand, to recognize and articulate the requisite degree of specificity — either in the equipment used15 or the steps claimed16 — that transforms an abstract idea into patent-eligible subject matter is a challenging task. In trying to sort through the various iterations of the § 101 standard, the court looks to DDR as a benchmark; i.e., the claims (informed by the specification) must describe a problem and solution rooted in computer technology, and the solution must be (1) specific enough to preclude the risk of pre-emption, and (2) innovative enough to "override the routine and conventional" use of the computer. DDR, 773 F.3d at 1258-59. The pre-emption concern is generally amenable to review in the context of a motion to dismiss or for judgment on the pleadings. The second requirement, which may well involve issues of fact relating to the state of the art in the technological environment involved, is more appropriately addressed after discovery in the context of a motion for summary judgment.

B. Claim Construction

The Federal Circuit has "never set forth a bright line rule requiring district courts to construe claims before determining subject matter eligibility." Ultramercial, LLC v. Hulu, LLC, 657 F.3d 1323, 1325 (Fed.Cir.2011), vacated sub nom. WildTangent, ___ U.S. ___, 132 S.Ct. 2431, 182 L.Ed.2d 1059 (2012). "Although the determination of patent eligibility requires a full understanding of the basic character of the claimed subject matter, claim construction is not an inviolable prerequisite to a validity determination under § 101." Content Extraction, 776 F.3d at 1349 (citing Ultramercial, 772 F.3d at 714-15; Bancorp, 687 F.3d at 1273-74). However, it may be "desirable — and often necessary — to resolve claim construction disputes prior to a § 101 analysis." Bancorp, 687 F.3d at 1273-74.

The parties have not raised issues of claim construction. The parties argue for and against invalidity based on the "character" of the patents and the claim language. Having reviewed the patents and briefing, the court concludes it may proceed with a § 101 analysis.

C. The Patents-in-Suit

The '101 patent "relates generally to translation of query and retrieval of multilingual information on the web." It describes "a method and system for conducting a translingual search on the Internet and accessing multilingual websites through dialectal standardization, pre-search translation and post-search translation." ('101 patent, 1:9-14) The specification states that "most of the [Internet] search tools cater primarily to the needs of the English speaking Internet user. This attribute renders these search tools almost useless to the non-English speaking Internet users who constitute as much as 75% of the Internet user population." ('101 patent, 2:14-18) The patent provides the following example of the problem:

('101 patent, 2:32-44)

The patent purports to solve this problem with a three-stage process and system: "dialectal standardization, pre-search engine translation, and post search engine translation." ('101 patent, 5:1 -4) The dialectal standardization identifies a keyword from an input query and standardizes it to a commonly known word. ('101 patent, 5:24-67) Examples of dialectal variations in British versus American English "include centre vs. center, lorry vs. truck, queue vs. line and petrol vs. gasoline." ('101 patent, 5:40-43) The pre-search translation "translates the standardized keyword into an equivalent in a target language." The translated keyword is then used in a search engine of the target language. ('101 patent, 6:5-13) The post-search translation is used to translate the search results into the source language. The user "selectively highlight[s] the portions that he/she desires to be translated and ... enter[s] an appropriate command or select[s] an appropriate option." ('101 patent, 6:33-36) The user may choose either a "machine translation" or a "well translated version." ('101 patent, 6:41-53) Claim 1 recites:

('101 patent, 7:66-8:15)

The '154 patent is a continuation-in-part of the '101 patent and incorporates the '101 patent by reference. ('154 patent, 1:6-17) The '154 patent incorporates a system and method "to send a user one or more advertisements in his native language, also called as source language, over the Internet while the user is performing a cross language search." ('154 patent, 3:8-12, 4:23-29) More specifically, "the server conducts a search in the database and returns to the user one or more advertisements relevant to the content word or keyword." The advertisements are either in the source language or may be translated by the server from a target language, ('154 patent, 4:40-49)

Claim 1 recites:

('154 patent, 10:4-24)

D. Analysis

Applying the analytical framework of Alice, the court first "determine[s] whether the claims at issue are directed to one of those patent-ineligible concepts," namely, laws of nature, natural phenomena, and abstract ideas. 134 S.Ct. at 2354-55. Defendant analogizes the method of the '101 patent17 to a set of tasks performed by a human,18 concluding that the '101 patent is directed to the abstract idea of searching for documents in a foreign language by translating a modified search request. (D.l. 10 at 10) According to defendant, the '154 patent recites the subject matter of the '101 patent (abstract idea of translingual searching) and then adds two targeted advertising steps, i.e., showing ads based on a user's activity. Defendant concludes that the '154 patent is directed to two abstract ideas — translingual searching and advertising. (D.l. 10 at 15-17)

That a method involving a computer and the internet may be broken down into a series of steps performed by a human does not resolve whether such method is an "abstract idea." The continuum begins with methods that "merely recite the performance of some business practice known from the pre-Internet world along with the requirement to perform it on the Internet" and progresses towards methods where "the claimed solution is necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks." DDR, 773 F.3d at 1257. The methods at bar do not perform a business method known from the pre-Internet world on the computer, instead, the methods contain an additional layer of complexity. The methods of the '101 patent "address the problem of ensuring that Internet search engines retrieve not only Web pages and documents written in the query language (source), but in foreign (target) languages as well." (D.l. 15 at 9) The methods of the '154 patent19 perform translingual searches and use them to display cross-language advertising to the user of the search engine." (D.l. 15 at 17-18)

The court turns to step two of the Alice framework. The method of the '101 patent provides a specific series of steps designed to optimize search results and retrieve target language URLs or documents using search engine queries on the Internet. The steps include extracting content words from a query, performing dialectal standardization of the words, and translation. (D.l. 15 at 12-14) As in DDR, the "claims at issue here specify how interactions with the Internet are manipulated to yield a desired result." Id. at 1258. The '154 patent recites similar steps for translingual searching and adds the concept of searching a database of advertising to return advertising targeted to the content word. (D.l. 15 at 18-19) The court concludes that the solution provided by the patents at issue is not a "routine and conventional" use of computer and Internet technology. Although the patents at issue use computers, the methods recite sufficiently specific steps, so as to ensure that the claims are "more than a drafting effort designed to monopolize the [abstract idea]," and will not disproportionately tie up the use of the underlying ideas. Alice, 134 S.Ct. at 2354, 2357; Mayo, 132 S.Ct. at 1294.

V. CONCLUSION

For the foregoing reasons, defendant's motion to dismiss (D.l.9) is denied. An appropriate order shall issue.

ORDER

At Wilmington this 22nd day of March, 2016, consistent with the memorandum opinion issued this same date;

IT IS ORDERED that defendant's motion to dismiss (D.l.9) is denied.