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Secure Axcess LLC v. Bank of America Corp.

April 26, 2013

SECURE AXCESS LLC, PLAINTIFF,
v.
BANK OF AMERICA CORP., ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants'*fn1 Motion for Summary Judgment of Non-Infringement (Docket No. 565) ("Motion"). For the reasons set forth below, the Motion is DENIED.

BACKGROUND

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. Claim 1, which is representative of all asserted claims, contains the following limitation: "wherein an authenticity stamp is retrieved from the preferences file." '191 Patent, Claim 1, at 12:17--18. The Court construed "preferences file" as "a file containing one or more authenticity stamps." Claim Construction Opinion at 10. Defendants contend they do not meet the "preferences file" limitation because their systems do not have an actual file containing stamps. Instead, Defendants argue their stamps are compiled from data stored in a variety of different locations. Because their systems do not actually store authenticity stamps, they do not infringe.

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

"Preferences File" Limitation

One of the limitations of Claim 1 reads, "Wherein an authenticity stamp is retrieved from the preferences file." '191 Patent, Claim 1, at 12:17--18. The Court construed "preferences file" to mean "a file containing one or more authenticity stamps." Claim Construction Opinion at 10. Defendants contend their products do not meet this limitation because their authenticity stamps are not single images stored in single files. Motion at 12. Instead, their stamps are generated on command by combining data from separate files. Id. at 12. Defendants assert that their authenticity stamps do not even exist in combined form until they are requested by a user.

Docket No. 585 ("Reply") at 3. In particular, their stamps contain the date and time. Motion at 12. Defendants argue this demonstrates their authenticity stamps are constantly changing, making it impossible to "store" their stamps in a preferences file. Id.

Defendants contend several statements made by Dr. Neeraj Gupta*fn2 support their position. Id. at 15. In his expert report, Dr. Gupta distinguished two prior art patents because their generated marks (i.e. authenticity stamps) were "dynamically generated and therefore not retrieved from the ...


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