Darlene Ghavimi, Esq., Farney Daniels PC, Wilmington, DE; and Steven R. Daniels, Esq., (argued), Farney Daniels PC, Georgetown, TX, Attorneys for the Plaintiff.
Steven J. Balick, Esq., Ashby & Geddes, Wilmington, DE; Adam Mortara, Esq., Bartlit Beck Herman Palenchar & Scott LLP, Chicago, IL; and Abby M. Mollen, Esq. (argued), Bartlit Beck Herman Palenchar & Scott LLP, Chicago, IL, Attorneys for the Defendant.
RICHARD G. ANDREWS, District Judge.
Presently before the Court for disposition is Defendant Zappos IP, Inc., 's Motion to Dismiss. (D.I. 9). This matter has been fully briefed (D.I. 10, 14, 15, 16, 17, 18) and the Court held oral argument on October 7, 2013. (D.I. 19, "Tr"). For the reasons set forth herein, the Defendant's motion is GRANTED.
Plaintiff, UbiComm LLC, alleges that Defendant, Zappos IP, Inc., "[w]ithout license or authorization... has directly infringed and continues to directly infringe one or more claims of the [United States Patent No. 5, 603, 054 ("'054 patent")]... at least by making and/or using one or more websites, including but not limited to, http://zappos.com/." (D.I. 1 at 3). Claim one of the '054 patent is the only independent claim and reads:
1. A method of triggering a selected machine event in a system including a multiplicity of computer controlled machines and a multiplicity of users, each computer controlled machine being capable of performing a one of the multiplicity of types of machine events, some of the computer controlled machines being stationary and others of the computer controlled machines being mobile, the method comprising the steps of:
selecting a type of machine event to be triggered;
selecting triggering properties of said system necessary for triggering said selected machine event;
selecting triggering conditions of an identified user necessary for triggering said selected machine event;
perceiving said triggering conditions;
determining whether said triggering properties are met; and
triggering said selected machine event when the triggering properties are met and the triggering conditions are perceived.
In accordance with the Court's Order, the Plaintiff identified claim terms it contended needed construction, and offered its proposed constructions. (D.I. 18). The terms and constructions were:
Claim Claim Term Plaintiff's Proposed Construction 1 "system" A multiplicity of computer controlled machines and a multiplicity of users, where each computer controlled machine is capable of performing one of a multiplicity of types of machine events, and where some of the computer controlled machines are stationary and some are mobile. 1, 8 "machine" A physical apparatus capable of performing a function 1, 3, 4, 5, 6, "user" "A human who interacts, implicitly or explicitly, with the 8 resources of the system." 1 "machine Operation of a machine in the system to achieve a detectable event" function in response to conditions of the user and properties of the system 1 "type of One of the particular machine events the system is capable of machine performing event" 1 "said system" The "system" as defined above by the preamble of Claim 1. 1, 2, 4, 5, 8 "identified A particular one of the users identified in the preamble of user" Claim 11 "perceiving" Detecting 3 "particular a detectable time time" 7 "specified a detectable time period after the previous event elapsed time"
(D.I. 18-1 at 1, 2 (internal citations and ...