Haptic Feedback Patents: Some Survive Eligibility Challenge by Fitbit

Immersion Corp. v. Fitbit (N.D.Cal. March 5, 2018)

On 12(b)(6) motion for dismiss, Judge Koh has thrown out some of Immersion’s asserted claims covering various haptic feedback approaches. However, some claims survived:

Invalid as Abstract Idea (claims from U.S. Patent No. 8,638,301):

 27. A system comprising

a processor configured to:

receive a first sensor signal from a first sensor, the first sensor configured to detect a movement of a first mobile device;

receive a second sensor signal from a second sensor, the second sensor configured to detect an interaction with the first mobile device;

receive a first data signal from a network interface, the network interface configured to receive signals transmitted by a second mobile device;

determine a change in a display signal based at least in part on the first data signal and the second sensor signal;

determine a haptic effect based at least in part on the first data signal; and

outputting [sic] the haptic effect.

28. The system of claim 27, wherein the first sensor and the second sensor are each configured to detect one or more of: contact, pressure, acceleration, inclination, inertia, or location.

29. The system of claim 27, wherein the second sensor comprises a touch-screen.

31. The system of claim 27, wherein the processor is further configured to transmit a second data signal to the network interface, and the network interface is further configured to transmit the second data signal to the second mobile device.

Not improperly claiming an abstract idea (Claims from U.S. Patent Nos. 8,059,105 and U.S. Patent No. 8,351,299 respectively): 

14. An apparatus comprising:

a sensor that senses motion of at least a portion of the apparatus and provides a sensor output based on the sensed motion;

a timer that provides a periodic timer output;
a vibrotactile device responsive to the timer that provides a corresponding periodic haptic output; and

a processing device that receives the sensor output and accumulates counts associated with the sensor output, the processing device providing an output to the vibrotactile device providing an output to the vibrotactile device once a threshold associated with the accumulated counts is reached.

19. A haptic feedback device, comprising:

one or more processors configured to receive an input signal and generate a force signal based on the input signal, wherein the input signal is associated with a user-independent event,
the user-independent event comprising one or more of a reminder event, an initiation of a task, a processing of the task, a conclusion of the task, a receipt of an email, or an event occurring in a game; and

one or more actuators configured to receive the force signal and impart a haptic effect based on the force signal.

= = = =

Read the Order: ImmersionDismissal

45 thoughts on “Haptic Feedback Patents: Some Survive Eligibility Challenge by Fitbit

  1. 8

    Of course the ineligibility of these claims would be very different if the claims were limited to “venue-based activities”.


  2. 7

    I suspect that the Supreme Court’s opinion the other day in U.S. Bank N.A. v. Village at Lakeridge may end up bearing directly on the developing questions of just how they are made/who make factual determinations and how they are treated on appeal in Section 101 cases.

    From the opinion:

    “What is the nature of the mixed question here and which kind of court (bankruptcy or appellate) is better suited to resolve it? Mixed questions are not all alike. Some require courts to expound on the law, and should typically be reviewed de novo. Others immerse courts in case-specific factual issues, and should usually be reviewed with deference. In short, the standard of review for a mixed question depends on whether answering it entails primarily legal or factual work”.

    This suggests to me that the USSC may at some point (soon) substantially limit the ability of the CAFC to re-litigate 101 determinations made by district judges.

    If that happens, without some formal expansion of Markman procedures or a ruling on the relationship of extrinsic facts to 12(b) 6 motions (at least in patent matters), it will be even more of a crapshoot and judge-dependent result. Plaintiffs and defendants will have a good shot at handicapping an outcome just from the draw. It’s no way to run a justice system, but I suppose some visibility is better than none. If you get Newman on your CAFC panel, you are already a few strokes back as a defendant….

    1. 7.1

      You really should go to law school. We would all appreciate it.

      1. 7.1.1

        Sorry Night, I need to make actual money forz my family. Ain’t happening in your profession, ‘cept for the lucky elect who make it to the elite schools. That won’t be me at this late hour.

        Maybe that’s happened because the Internet is disintermediating and demystifing that ole’ black magic for lots and lots of people, at least on the 1/3 above the waterline stuff.

        Meanwhile, you come off as a ranting foo at least 70% of the time. Pots and kettles.



          You need not go to law school to show at least some minimal appreciation of the field upon which you wish to do battle.

          I will say though that while you have made some progress since your first forays, you remain stalled in that you appear to want to force your preconceived notions into what you do learn, as opposed to learning and reevaluating your prior understandings.


            Your still fondling NW, “anon”?


            Wow. “Perceptions”. Lol


              You comment on a reply of mine to Marty (which actually disagrees with what Night Writer states)…

              um, your preoccupation with “fondling” needs to be nipped in the bud. what next? a return to your “fluffing” comments?


          Martin, why are you trying to play in an arena where you have not been trained to play? Serious question. The law is difficult to understand for those that have not attended law school (or read for the law.)

          Wow, 30% percent intellect cogent remarks from me. That must beat out anyone else on this blog.


            Really, I would need $200K worth of law school to come up with

            Any opinion that holds something is abstract should be thrown out. ?

            I am absolutely untrained on the finer points, but I’ve read hundreds of cases and I know the eligibility debate backward and forward. I wouldn’t last an hour on my own in actual litigation, but for the purposes of PatentlyO, I am fully equipped to contribute here.

            Also, much of what you call law is actually politics and policy, and I suspect (with good reason) that I am as versed (or more) in those areas than any of the regulars on this site.

            And in the end, I may end up moving the needle more than all y’all, because I’m not limiting myself to printed advocacy. I’m putting dollars into it, and people would be amazed how little money it takes to bend political ears.


              much of what you call law is actually politics and policy, and I suspect (with good reason) that I am as versed (or more) in those areas than any of the regulars on this site.

              Marty we disagree on plenty of stuff but NW and “anon” are here to shill for their self-interests and tr 0ll. They will literally do and say anything, no matter how bizarre and no matter how incomprehensible. And they already have done that. And that’s been shown to everyone over and over. They just don’t care.


                Malcolm’s typical Accuse Others meme in action.



              I understand you are very upset about troubles your company has had with patents. It would be interesting to see you write this up in a paper. Maybe you should focus on what you know. It would be interesting to see from a software developer perspective why some patents shouldn’t be able to be asserted.


                He has written a paper “on the matter.”

                Unfortunately, he has dived deep into the weeds and attempts to expound on the law as he would have it, rather than on any objective view of the facts of his particular situation in regards to the law as actually written by Congress.

                That, and the fact that his settlement agreement precludes him from discussing those very same objective facts and actual application of law prevents him from meaningfully sharing the very thing that you ask for.

                1. Ohfergawdsakes  my paper has zero to do with the particulars of any of my several encounters with the patent system.

                  It’s a very specific policy suggestion- i.e. a compromise with people who can’t quit on logic/information being the innovative elements of patented inventions.

                  Logic and information should not be patent eligible subject matter, but many, many people think they should be, because technology is magic. Since they will likely never give it up, my proposal limits the damage and makes reasonable philosophical sense based on the actual meaning of the word abstract and relationship of symbols to people in the world.

                  Anybody a wee bit less indolent than anon can look up public records related to litigation I was involved in, and make their own judgement about those merits, which have, again, nothing to do with my advocacy beyond the impetus to spark my interest.

                2. but many, many people think they should be, because technology is magic

                  Marty – you have that exactly backwards.

                  Those that understand that there is NO magic are the ones that understand why patent eligibility is proper.

                  It is ONLY those that try to hold out for “magic,” that employ the “it’s a witch” type of thinking that get the patent eligibility issue all messed up.

                  There is NO indolence in my observations of the emotions driving your animus.

                  Quite the opposite in fact, as probably most people wouldn’t bother at all with why you feel as you feel.

                  Care for a third strike?

    2. 7.2

      Same comment the first time you posted this thought applies here too Marty.

      The Office (be it the examiner or the PTAB) has to get the factual predicate part of the 101 legal question right before you see any such “substantially limit.”

      And looking as to how the PTAB is (again) showing its true colors (vis a vis “first impression” rulings), you are not likely to see the Supreme Court go that path.

      As to your comment on Newman and “already a few strokes back as a defendant” – not sure whether that is a emotionless objective observation, or one tainted by your own personal experience.

      1. 7.2.1

        Look at you, negated before the elections are dry. See above on this website “What are the Rules for Assessing Patent Eligibility?
        March 7, 2018”

        The action at the moment is not at the PTAB- it’s in the district courts and the rules/procedures around 12(b)6 and JMOL’s relating to the mixed questions associated with eligibility. It’s going to likely go the way claim construction went pre Markman. No law school needed, and anyone with half a brain can see the parallel to the bankruptcy case I cited- half a legally educated brain or not.


          I think it’s great that you offer your comments. The personal attacks back-and-forth on this blog are an unnecessary distraction to the legal points being made.

          Some people appear to be bent on a particular philosophical view of patent law and think Courts are wrong when they disagree with the opinion. While there are opinions that I would have authored differently, the way our system is, the Court is the arbiter. What they say goes until they or a higher Court says otherwise.

          Comments based on personal feelings are rather worthless in the Court system and more so here.


            the way our system is, the Court is the arbiter. What they say goes until they or a higher Court says otherwise.

            Sorry Ray – but you miss the bigger issue itself of a broken score board.

            As to the another point you offer, you appear to be caught in a contradiction of “are rather worthless in the Court system and more so here which appears to be opposite of your own feelings of “I think it’s great that you offer your comments.” – especially as Marty’s comments are based on his feelings and his own not understanding how the law is (and should) work.


              Yeah, I’m not personally in agreement with many opinions or that the system is broken in some areas, but I do understand screaming at the clouds like an angry ole man isn’t going to do any good.

              Fair point—


              “anon” you miss the bigger issue itself of a broken score board.

              Translation: “I’m just going to scream louder and soil myself. ARE YOU IMPRESSED YET?”



          negated before the elections are dry

          What does that even mean?

          Your reference to the other thread is unclear. If you read my comment there, I am explicit in drawing the distinction between Article III and non-Article III.


              Even “before the electrons are dry” STILL does not make any sense (you are perhaps presupposing some type of “negation” which is just not present).


              It’s too bad this dialogue was derailed.

              I am now reviewing the U.S. Bank N.A. v. Village at Lakeridge case and that case could have served as an interesting discussion point (whether or not Marty attended law school).

              Maybe we will have a chance at a dialogue when Oil States is released.

  3. 6

    Any opinion that holds something is abstract should be thrown out.

    1. 6.1

      We are a third-world country.

  4. 5

    Any opinion that holds something is abstract should be thrown out. Just garbage law. We are a third-world country.

  5. 4

    I am very interested in how the US law system train its judges. Each judge is responsible for different areas, each of which has a lot of difficult and developing issues, i.e. patent law has 101, 102, 103… Is it possible for a judge to properly apply the case laws to the cases of different areas?

    1. 4.1

      Look up the concept of “Law of the Horse.”

      It deals with the notion of how (and if) an emerging idea/concept/concern fits into existing legal schema.

      1. 4.1.1

        Thank you very much!

    2. 4.2

      Great question. I’ll assume you have had little interaction with the U.S. legal system. We prefer our judges (and attorneys) to be generalists, rather than specialists. When attorneys sit for the state bar exams, they must know a little about contracts, torts, civil procedure, trusts and estates, etc. What this means is that when a specialized topic arises, attorneys and judges are expected to learn the nuances of the topic in order to advocate for the client (for attorneys) or decide a case (for judges). While some of our courts become highly experienced in certain types of law–i.e., the U.S. District Court of Delaware handles a huge volume of patent litigation, the same courts also handle the same kinds of cases you can find in any other federal court, e.g., criminal cases, contract disputes, and products liability.

      The important distinction between our courts and those of most of the rest of the world is that our courts operate as mediators in an adversarial system, whereas the courts of the most of the rest of the world are inquisitorial in nature. In effect, in an adversarial system, the parties themselves must develop the case, and the judge is really there to keep the case moving and facilitate a resolution. In an inquisitorial system, the judge actively engages in uncovering an official version of the truth. Thus, specialized knowledge may be helpful in an inquisitorial system, but it can actually be detrimental in an adversarial system. After all, the judge is supposed to form an opinion based on the cases as presented by the parties in the adversarial system.

      Contrast this to our patent office. There, the Examiners are supposed to have some knowledge of the field from which they examine patent applications. While the patent attorney may need to help educate the Examiner, the nature of the proceeding is not supposed to be adversarial. Here, specialized knowledge is actually helpful for the Examiner (and ultimately the patent applicant).

      1. 4.2.1

        A not-so-small correction:

        When attorneys sit for the state bar exams, they must know a lot about contracts, torts, civil procedure, trusts and estates, etc.

        The technical aspects of law is said to be highest at the bar examination point.

        It is after that point that the practical practice aspects then become important. That is when the nuances come into play, but those nuances may – or may not – involve more detailed technical legal aspects.

        Sadly, law schools have not been immune to the troubles of most academia in the US, in that academia has become more interested in perpetuating its philosophies rather than teaching students how to critically think.

        Your comments about the distinction of the court (parties as adversaries with judge as referee versus inquisitorial) are excellent. Sadly, this difference is sometimes given lip service, and judges (even Justices) may say that is what they are doing, when they are doing something else completely – and yes, in a specific of the statement, I have one particular Justice in mind with that comment.

        I am not sure though that your view of the lack of an adversarial nature of the patent office mirrors reality. Yes, examiners are supposed to be “helpful” in their examination, but the reality of the “Just say NO,” the Reject Reject Reject culture and the evidence of this culture from a spectrum of shadow programs to the touting of “quality” being measured purely on a Type I error basis do not support your (undoubtedly well-intended) comments.


          academia has become more interested in perpetuating its philosophies rather than teaching students how to critically think

          “Black people are inferior to whites. Write a ten page memo describing the evidence for and against.” <– "anon's" idea of a "critical thinking" exercise



            Where in the world would you get such a projection for me? You are doing that “one-bucketing” thing again.


          Hi Insert_Witty_Patent_Pun,

          Thank you very much for the detailed explanation. I am an China patent attorney (in-house) dealing with my company’s US and EP patent applications frequently for a few years. I also had worked in US on patent prosecution for several years. So you are right that I have had little interaction. Based on your explanation, I understand it like this: normal judges (judges who don’t work at the several famous “patent courts”) hear the arguments of each party in the case and then make a decision based on the arguments and the judges’ knowledge (limited) on patent law. If this is the case, it is similar to the situation in China. In addition, China now has several IP courts having judges working specially in IP areas.


            Sorry for my delay. I think you get the gist of our system. The following summary discusses only the federal level. There is a completely different system of courts in each of our 50 states, but we’ll just ignore them because patents are governed by federal law. We have three branches of government–Legislative, Executive, and Judicial–all of which have limited and nominally defined powers. The USPTO is part of the Executive branch. Inside the USPTO, we have PTAB patent law judges that hear only patent cases. The question in PTAB trials is whether the patent should have ever issued in the first place. These are our only specialized judges.

            The Judicial branch has three levels. The trial courts are called the District Courts, the intermediate appellate courts are called the Circuit Courts of Appeal, and the final appellate court is the US Supreme Court. The judges serving on these courts are generalists. A patent case can be started in any District Court in which the court has jurisdiction over the defendant, although most cases are either filed in the Eastern District of Texas or the District of Delaware. No matter where the patent case is started, though, all appeals must be taken to the Court of Appeals for the Federal Circuit (CAFC). That court handles more than just patent cases, but Congress created it to unify the interpretation of the patent law in the 1980’s. If at least one party is unhappy with the outcome at the CAFC, that party may petition the Supreme Court for a writ of certiorari. The Supreme Court gets to choose which cases it hears, and this writ is the manner in which it accepts an appeal. Again, the Supreme Court justices are generalists.

            In short, the only way to truly get a specialist “judge” in the US is to proceed in the PTAB. However, many of us who practice patent prosecution see that body and its rules as somewhat unfavorable to the patentee. Also, the proceedings are adversarial no matter the court in which they take place. So the judges are not supposed to interject their own special knowledge into the proceedings, even if they have such specialized knowledge.

            Thanks for sharing information about the Chinese system. I prosecute patent applications there, but I have not been involved in litigation in China yet.


          Your further comments are well appreciated.

  6. 3

    The ‘301 is so awful it’s not worth spending time on.

    Let’s unpack the junk from the claims that survived, shall we?

    “Actuators” = “things that move in response to a signal”

    “Haptic” <– kudos to the scrivener who reached into the bag of cr @p for that one. It means "relating to the sense of touch." So "imparting a haptic effect" (<-LOL!) means imparting (or producing) an effect that can be felt.

    The '105 patent describes an apparatus comprising a detector and a processor and a vibrator, configured so that the vibrator vibrates periodically when the detector senses that the apparatus is moving. Wowee zowee! Prior art sensor detects stuff. Prior art processor processes stuff (OMG!) and tells a prior art vibrator to (wait for it!) vibrate. Who could have imagined? What will processors be capable of next?? Maybe they'll detect a periodic vibration and … tell a prior art light to come on! Or maybe activate a second sensor connected to …. a robot! And a report will be sent to a remote server. Wirelessly! And maybe we can work in a database and a secure account in there somewhere just to make it s00per d00per techn0. Ineligible or not, the assertion of this kind of g@ rbage is eminently sanction-worthy unless everyone involved is nine years old or younger.

    Claim 19 from the '299 patent is even worse. Anytime you see something like this: “the user-independent event comprising one or more of a reminder event, an initiation of a task, a processing of the task, a conclusion of the task, a receipt of an email, or an event occurring in a game” in an independent claim you know that the train has left the rails. Not sure how this one survives eligibility. The district court got it wrong, big time.

    “An event occurring in a game” is ineligible subject matter (it’s certainly broad enough to include ineligible subject matter). “A reminder” is certainly ineligible. There’s nothing else in the claim except “move the apparatus when a signal is received.” That’s in the prior art, folks. And there’s nothing “unconventional” about it.

    What the heck are people thinking? Good grief what an embarassment.

    1. 3.1

      Just curious, can you cite to a patent where you do believe a grant was warranted?

  7. 2

    Good illustration of the difference between a programmed computer doing calculations and a larger machine that may involve a programmed computer.

    1. 2.1

      Why? Compare:

      outputting [sic] the haptic effect.


      providing an output to the vibrotactile device [ ] once a threshold associated with the accumulated counts is reached.

      I don’t see much of a difference, and any difference seems just hand waving.

      Anyone have an idea why there is a “[sic]” after “outputting”?

      1. 2.1.1

        “”Anyone have an idea why there is a “[sic]” after “outputting”?””

        Because “a processor configured to outputting” is not grammatically correct.

        Without reading the opinion, the difference between claims is probably that the allowed claim includes elements besides just a processor, while the disallowed claim only recites a processor.

  8. 1

    Yeah idk about those that survived. They might survive the motion, but will they survive the actual proceedings? idk.

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