United States District Court, D. Delaware
A. Rovner, POTTER ANDERSON & CORROON, LLP, Wilmington,
DE; Aaron M. Frankel (argued) and Marcus Colucci (argued),
KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, NY.
Attorneys for Plaintiff.
B. Blumenfeld, MORRIS NICHOLS ARSHT & TUNNELL LLP,
Wilmington, DE; David P. Enzminger (argued) and Louis L.
Campbell, WINSTON & STRAWN LLP, Menlo Park, CA; Michael
A. Tomasulo (argued), WINSTON & STRAWN LLP, Los Angeles,
CA. Attorneys for Defendant.
ANDREWS, U.S. DISTRICT JUDGE.
before me are Defendant's Motion for Summary Judgment
(D.I. 424) and Plaintiffs Motion for Partial Summary Judgment
(D.I. 435). The Parties have briefed the issues. (D.I. 426,
437, 465, 467, 476, 478). I heard argument on February 28,
2019. (D.I. 525 ("Tr.")). I ordered supplemental
briefing on the issues addressed during the argument. (D.I.
526, 534, 535). For the reasons set out more fully below, I
will partially grant Defendant's Motion for Summary
Judgment and deny Plaintiffs Motion for Partial Summary
brought this suit against Electronic Arts Inc.
("EA") on June 17, 2016, alleging that certain
multiplayer features of the FIFA, NHL, PGA Tour,
Plants v. Zombies: Garden Warfare ("PvZ")
games infringe U.S. Patent Nos. 6, 701, 344 ('"344
Patent"), 6, 714, 966 ('"966 Patent"), 6,
732, 147 ("T47 Patent"), 6, 829, 634
("'634 Patent"), 6, 910, 069 ("'069
Patent"), and 6, 920, 497 ('"497 Patent").
(D.I. 1). On the same date, Plaintiff filed suit against
several other entities, including Activision Blizzard Inc.
("Activision"). (C.A. 16-453 (the "Activision
August 8, 2018, after the Parties completed their initial
briefing on the pending motions, I granted summary judgment
of invalidity of the asserted claims of the '634 Patent
and claims 11, 15, and 16 of the '147 Patent. (D.I. 499
at 7-9, 20-23, 500). I also granted Activision summary
judgment of noninfringement of the '344, '966, and
'497 Patents as to certain accused games in that case.
(Id. at 10-20).
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). The moving party has the initial burden
of proving the absence of a genuinely disputed material fact
relative to the claims in question. Celotex Corp. v.
Catrett, Ml U.S. 317, 330 (1986). Material facts are
those "that could affect the outcome" of the
proceeding, and "a dispute about a material fact is
'genuine' if the evidence is sufficient to permit a
reasonable jury to return a verdict for the nonmoving
party." Lamont v. New Jersey, 637 F.3d 177, 181
(3d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc.,
Ml U.S. 242, 248 (1986)). The burden on the moving party
may be discharged by pointing out to the district court that
there is an absence of evidence supporting the non-moving
party's case. Celotex, Ml U.S. at 323.
burden then shifts to the non-movant to demonstrate the
existence of a genuine issue for trial. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., MS U.S. 574, 586-87
(1986); Williams v. Borough of West Chester, Pa.,
891 F.2d 458, 460-61 (3d Cir. 1989). A non-moving party
asserting that a fact is genuinely disputed must support such
an assertion by: "(A) citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations ..., admissions, interrogatory
answers, or other materials; or (B) showing that the
materials cited [by the opposing party] do not establish the
absence ... of a genuine dispute . . .." Fed.R.Civ.P.
determining whether a genuine issue of material fact exists,
the court must view the evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in
that party's favor. Scott v. Harris, 550 U.S.
372, 380 (2007); Wishkin v. Potter, 476 F.3d 180,
184 (3d Cir. 2007). A dispute is "genuine" only if
the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Anderson, 477 U.S.
at 247-49. If the non-moving party fails to make a sufficient
showing on an essential element of its case with respect to
which it has the burden of proof, the moving party is
entitled to judgment as a matter of law. See Celotex
Corp., 477 U.S. at 322.
patent is infringed when a person "without authority
makes, uses, offers to sell, or sells any patented invention,
within the United States ... during the term of the patent.
.. ." 35 U.S.C. § 271(a). A two-step analysis is
employed in making an infringement determination. See
Markman v. Westview Instruments, Inc., 52 F.3d 967, 976
(Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370
(1996). First, the court must construe the asserted claims to
ascertain their meaning and scope. See Id. The trier
of fact must then compare the properly construed claims with
the accused infringing product. See Id. at 976. This
second step is a question of fact. See Bai v. L & L
Wings, Inc., 160 F.3d 1350, 1353 (Fed. Cir. 1998).
infringement of a claim exists when every limitation recited
in the claim is found in the accused device." Kahn
v. Gen. Motors Corp., 135 F.3d 1472, 1477 (Fed. Cir.
1998). "If any claim limitation is absent from the
accused device, there is no literal infringement as a matter
of law." Bayer AG v. Elan Pharm. Research
Corp., 212 F.3d 1241, 1247 (Fed. Cir. 2000). If an
accused product does not infringe an independent claim, it
also does not infringe any claim depending thereon. See
Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546,
1553 (Fed. Cir. 1989). However, "[o]ne may infringe an
independent claim and not infringe a claim dependent on that
claim." Monsanto Co. v. Syngenta Seeds, Inc.,
503 F.3d 1352, 1359 (Fed. Cir. 2007) (internal quotations
omitted). A product that does not literally infringe a patent
claim may still infringe under the doctrine of equivalents if
the differences between an individual limitation of the
claimed invention and an element of the accused product are
insubstantial. See Warner- Jenkinson Co. v.
Hilton Davis Chem. Co., 520 U.S. 17, 24 (1997). The
patent owner has the burden of proving infringement and must
meet its burden by a preponderance of the evidence. See
SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859
F.2d 878, 889 (Fed. Cir. 1988) (citations omitted).
accused infringer moves for summary judgment of
non-infringement, such relief may be granted only if at least
one limitation of the claim in question does not read on an
element of the accused product, either literally or under the
doctrine of equivalents. See Chimie v. PPG Indus.,
Inc., 402 F.3d 1371, 1376 (Fed. Cir. 2005); see also
TechSearch, L.L.C v. Intel Corp., 286 F.3d 1360, 1369
(Fed. Cir. 2002) ("Summary judgment of noninfringement
is ... appropriate where the patent owner's proof is
deficient in meeting an essential part of the legal standard
for infringement, because such failure will render all other
facts immaterial."). Thus, summary judgment of
non-infringement can only be granted if, after viewing the
facts in the light most favorable to the non-movant, there is
no genuine issue as to whether the accused product is covered
by the claims (as construed by the court). See Pitney
Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1304
(Fed. Cir. 1999).
Parties raised numerous issues in their summary judgment
briefing. Most were not adequately briefed, and I do not
consider them any further. I asked the Parties to
specifically address certain issues during oral argument and
in 75 pages of additional briefing. (D.I. 524). I will
address those issues in detail and deny summary judgment on
Infringement of the Asserted Claims of the '344,
'966, and '497 Patents
Parties agree that, under my reasoning in the Activision
Case, Defendant does not make or sell the inventions claimed
in the '344, '966, and '497 Patents. Plaintiff
also agrees that my opinion in the Activision Case limits its
use argument to Defendant's alleged use by testing the
Accused Products. Plaintiff does not reargue most of those
points in this case. (D.I. 511 at 2; Tr. at 21:l-5).
Accordingly, I will grant Defendant's motion for summary
judgment on the conceded issues. Plaintiff does argue,
however, that its use by testing position is distinct ...