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Secure Axcess LLC v. Bank of America

April 26, 2013


The opinion of the court was delivered by: Leonard Davis United States District Judge


Before the Court is Defendants'*fn1 Motion for Summary Judgment of Non-Infringement (Docket No. 564) ("Motion"). For the reasons set forth below, the Motion is DENIED.


There is only one asserted patent in this lawsuit-U.S. Patent No. 7,631,191 (the "'191 Patent" or the "Patent"). The '191 Patent relates to a technology for verifying a webpage is from its true source. Docket No. 461 ("Claim Construction Opinion") at 2. Because fraudulent webpages often appear authentic, it can be difficult for users to determine whether the page they are viewing is genuine. '191 Patent, at 1:25--29. The '191 Patent addresses this issue. When a user views a webpage originating from a valid source, an "authenticity stamp" is displayed on the page. Id. at 2:39--42. Most of the issues presented in this Motion revolve around the authenticity stamp limitation.

An authenticity stamp is "a visual and/or audio indication that the information (e.g., a web page) being presented has been authenticated and is from a valid source." Claim Construction Opinion at 13. The parties debate the function of the authenticity stamp. Defendants believe the authenticity stamp plays a passive role in confirming the source of a webpage. In their view, the presence of the stamp is binary. If the stamp is displayed, the source is valid; if the stamp is not displayed, the source is not valid. Thus, Defendants believe the stamp cannot be presented to a user unless the source of the page has already been validated. Defendants argue that because their systems do not confirm the source of a webpage before they display the authenticity stamp, their systems do not infringe.

The Plaintiff Secure Axcess LLC ("Secure") contends the authenticity stamp plays a more active role in confirming the source of a page. According to Secure, the user ultimately validates the source of a webpage when it sees the authenticity stamp. Secure argues the content of the authenticity stamp allows a user to determine whether a source is valid. Thus, an authenticity stamp can be displayed even if the source is fraudulent because the user will know the authenticity stamp is incorrect.

APPLICABLE LAW Summary Judgment Standard

Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323--25 (1986); Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). An issue of material fact is genuine if the evidence could lead a reasonable jury to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue for trial exists, the court views all inferences drawn from the factual record in the light most favorable to the nonmoving party. Id.; Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).

If the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must assert competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations, unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). The party opposing summary judgment is required to identify evidence in the record and articulate the manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Summary judgment must be granted if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial. Celotex, 477 U.S. at 322--23.

Infringement Law

Infringement analysis is "a two-step process in which we first determine the correct claim scope, and then compare the properly construed claim to the accused device to determine whether all of the claim limitations are present either literally or by a substantial equivalent." Renishaw PLC v. Marposs Societa' Per Azioni, 158 F.3d 1243, 1247--48 (Fed. Cir. 1998). Claim construction is an issue of law. Markman v. Westview Instruments, Inc., 52 F.3d 967, 970--71 (Fed. Cir. 1995). A determination of infringement, whether literal or under the doctrine of equivalents is a question of fact. Biovail Corp. Int'l v. Andrx Pharms., Inc., 239 F.3d 1297, 1300 (Fed. Cir. 2001). For literal infringement, "every limitation set forth in a claim must be found in an accused product, exactly." Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed. Cir. 1995). Any deviation from the literal claim language precludes a literal infringement finding. Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1330 (Fed. Cir. 2001).

ANALYSIS "Authenticity Stamp" Limitation

The parties' dispute regarding this limitation reflects a fundamental disagreement over the scope of the Patent. In particular, the parties debate the level of human involvement dictated by the Claims. Defendants contend the entire process is automated and involves no human interaction. Motion at 14. Under Defendants' view, the system authenticates that a web page comes from a valid source, then displays an authenticity stamp. See id. at 13 ("Conveyance to the user that the web page has been authenticated as being from its true source is accomplished through the display of an authenticity stamp.") (emphasis added). A human user plays a passive role. If an authenticity stamp is displayed, the page came from a valid source-the user is not required to make a determination about the stamp itself. See id. Secure's view requires the user to play a more active role. Secure believes a page can be authenticated even if the source is fraudulent, so a human user must confirm that the authenticity stamp is correct. Docket No. 574 ("Response") at 6. Secure refers to this last step as the "validating step." See id. Secure argues the authenticity stamp enables a user to visually confirm the page came from a valid source, so user confirmation is inherent within the Claims. See id.

Defendants' non-infringement position is based on their belief that authentication and validation occur simultaneously. Motion at 9. Defendants first argue they do not infringe because SSL authentication does not confirm a source is valid. Id. at 12. Under Secure's infringement theory, the "authenticity key" is an image tag. Id. at 11. The image tag triggers round-trip SSL authentication, which in turn authenticates the webpage. Id. However, SSL alone does not authenticate the source of the page. Id. at 12. Thus, using SSL ...

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