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Oyster Optics, LLC v. Coriant America Inc.

United States District Court, E.D. Texas, Marshall Division

June 21, 2018

OYSTER OPTICS, LLC,
v.
CORIANT AMERICA INC., et al.,

          MEMORANDUM OPINION AND ORDER

          RODNEY GILSTRAP UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants Coriant North America, LLC, Coriant Operations, Inc., Coriant (USA) Inc., Infinera Corporation, Alcatel-Lucent USA Inc., Fujitsu Network Communications, Inc., Cisco Systems, Inc., Huawei Technologies Co., Ltd., and Huawei Technologies USA Inc. (collectively, “Defendants'”) Motion for Partial Summary Judgment of Noninfringement Based on the Absence of “Phase Modulation” (Dkt. No. 262).[1] Also before the Court are Plaintiff Oyster Optics, LLC's (“Plaintiff's” or “Oyster's”) Opposition (Dkt. No. 354), [2]Defendants' reply (Dkt. No. 458), [3] and Plaintiffs' sur-reply (Dkt. No. 496). After considering the briefing and evidence, the Court finds that Defendants' Motion for Summary Judgment (Dkt. No. 262) should be DENIED and that the Court's construction of the term “phase modulate” should be CLARIFIED.

         I. BACKGROUND

         Plaintiff has brought suit alleging infringement of United States Patents No. 6, 469, 816 (“the '816 Patent”), 6, 476, 952 (“the '952 Patent”), 6, 594, 055 (“the '055 Patent”), 7, 099, 592 (“the '592 Patent”), 7, 620, 327 (“the '327 Patent”), 8, 374, 511 (“the '511 Patent”), 8, 913, 898 (“the '898 Patent”), and 9, 363, 012 (“the '012 Patent”) (collectively, “the patents-in-suit”). (See Dkt. No. 157, Exs. 1-8.) Plaintiff submits that the patents-in-suit are “generally directed towards systems and methods for transporting information by modulating light waves transmitted and received across transparent optical fibers.” (Dkt. No. 157, at 2.)

         The Court entered a Claim Construction Memorandum and Order on December 5, 2017. (Dkt. No. 190.) Of relevance here, the Court construed the term “phase modulate” to mean “alter the phase of light while keeping the amplitude of the light constant to create an optical signal having a phase that is representative of data.” (Id., at 18; see id., at 10-18.)

         II. LEGAL PRINCIPLES

         Summary judgment is proper when “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). Under this standard, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine [dispute] of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The substantive law identifies the material facts, and disputes over facts that are irrelevant or unnecessary will not defeat a motion for summary judgment. Id. at 248. A dispute about a material fact is “genuine” when the evidence is “such that a reasonable jury could return a verdict for the nonmoving party.” Id. Any evidence must be viewed in the light most favorable to the nonmovant. See Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).

         The moving party has the burden to identify the basis for granting summary judgment and to supply evidence demonstrating the absence of a genuine dispute of material fact. Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party does not have the ultimate burden of persuasion at trial, the party “must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

         III. THE PARTIES' POSITIONS

         Defendants argue that there can be no genuine issue of material fact, either literally or under the doctrine of equivalents, as to whether the accused instrumentalities meet the “phase modulate” limitation as construed by the Court. Defendants submit that this limitation appears in the following asserted claims: Claims 1 and 3 of the '952 Patent; Claims 1, 8, and 11 of the '055 Patent; and Claims 10, 14, 16, 17, 18, 22, 25, 28, 29, and 33 of the '327 Patent. (Dkt. No. 262, at 3.) As to the Court's construction and the specification disclosures cited in the Court's Markman analysis, Defendants have noted as follows: “The asserted patent specifications emphasize that keeping the amplitude constant provides certain benefits. Keeping the amplitude constant, for example, makes it easier to detect any changes in amplitude, which the patents teach can be associated with various problems, such as the presence of an intruder attempting to intercept communications carried by the light.” (Id., at 1.)

         Defendants submit that, in the accused instrumentalities, each phase shift performed in the course of phase modulation includes a change in amplitude. (See id., at 1-2 & 4.) Defendants argue that “Oyster's theory assumes that the Court's claim construction does not pertain to the ‘transition' period between symbols, ” and Defendants urge the Court to reject Plaintiff's interpretation. (Id., at 8.)

         Finally, Defendants argue that Plaintiff's assertion of the doctrine of equivalents (“DOE”) lacks sufficient specificity, “Oyster's experts fail to meaningfully explain how or why the differences are allegedly insubstantial, ” and “the patentee expressly disavowed in the specification the very scope that Oyster is now attempting to capture with DOE.” (Id., at 13; see Id. at 11-13.)

         Plaintiff responds that Defendants' technical documents, as well as the opinions of Defendants' own experts, support the opinions of Plaintiff's expert that the accused instrumentalities keep the amplitude of the light constant for purposes of the Court's construction. (See Dkt. No. 354, at 1; see also Id. at 23-24.)

         Plaintiff also submits that, during claim construction proceedings, the parties addressed whether “phase modulation” in the patents-in-suit exclude amplitude modulation, not whether “phase modulation” precludes any alteration of amplitude at any time. (See id., at 1-2; see also Id. at 10 & 21.) Plaintiff requests that the Court “make clear it only excludes amplitude modulation, not modulation that might ever include any variation in amplitude.” (Id., at 15.) Plaintiff urges that “under the right construction of claim scope, Defendants have no argument that their PSK-systems [(phase-shift-keying systems)] do not ‘phase modulate.'” (Id., at 2.)

         Alternatively, Plaintiff argues that “beyond the absence of amplitude modulation, the accused functionality is designed to modulate the phase of light while keeping the amplitude of the light constant as to the creation of each optical signal having a phase representative of the data . . . .” (Id.; see Id. at 6 & 8 (“the amplitude is constant whenever the optical signal is actually representative of the data”); see also Id. at 19-21.)

         Finally, as to the doctrine of equivalents, Plaintiff responds that the purportedly conclusory expert opinions criticized by Defendants are sufficient by themselves and, moreover, “plainly refer to other testimony in [Plaintiff's expert's] report in which he explains, in many pages of additional detail, the transmission, encoding, and optical-data receiving operation in the accused products.” (Id., at 25.)

         Defendants reply that “it is beyond dispute that amplitude in the accused systems is continuously changing whenever phase is changing, and this change is not some de minimis part of the accused modulation.” (Dkt. No. 458, at 1.) Defendants submit that, in the accused instrumentalities, “[t]he process of modulation involves intentionally changing the amplitude . . . all the way to zero amplitude and then bringing it back up . . . .” (Id., at 7.) Defendants argue that “the patents never discuss alternative implementations of phase shift keying that rely on amplitude changes to effect modulation (such as the versions accused in Defendants' systems).” (Id., at 5.) Further, Defendants assert that “[i]f used in the system of the patents, the energy level detector would detect different values of energy (due to different amplitude values), depending on any particular sequence of data.” (Id., at 8 (citing '327 Patent at 4:39-47 & '592 Patent at 2:41-44 & 2:63-3:3).)

         As to the doctrine of equivalents, Defendants reply that “there is no analysis or opinion in Oyster's reports as to the impact of the changing amplitude in Defendants' optical signals to the ability of Defendants' products to detect drops in amplitude of a phase modulated signal, as required by every asserted claim of the '327 Patent.” (Dkt. No. 458, at 10.)

         In sur-reply, Plaintiff argues that it “correctly interprets the Court's construction based on what the Court found was actually disparaged by [the] patentee-amplitude modulation-and consistent with the Defendants' earlier representation to the Court that a PSK signal whose amplitude varied during transitions was ‘phase modulation.'” (Dkt. No. 496, at 1.) Plaintiff submits, for example, that “the amplitude is constant when the phase of the data symbol changes sufficiently to be representative of the data.” (Id., at 10 (emphasis omitted).) Plaintiff proposes:

To prevent this legal dispute or Defendants' erroneous interpretation from going to the jury, Oyster respectfully proposes that this Court either: (a) provide a supplemental instruction that makes clear “phase modulate” excludes amplitude modulation but no more; or else (b) provide a revised construction that reflects the Court's reasoning and leaves no room to [sic] further misinformation: “alter the phase of light to create an optical signal having a phase representative of the data, but not an amplitude representative of the data.”

(Id., at 8 n.2.)

         IV. ANALYSIS

         During claim construction proceedings, the parties submitted the following proposed constructions for the term “phase modulate”:

Plaintiff's Proposed Construction

Defendants' Proposed Construction (emphasis added)

“alter the phase of light to create an optical signal having a phase that is representative of data”[4]

“alter the phase of light while keeping the amplitude of the light constant to create an optical signal having a phase that is representative of data”

(Dkt. No. 157, at 8; Dkt. No. 165, at 10; Dkt. No. 168, Ex. B, at 1-2, 9, 15, 21, 23, 25, 31 & 35.) Thus, the only difference between the parties' proposals was Defendants' proposal of “while keeping the amplitude of the light constant.” The Court adopted Defendants' proposed construction. (Dkt. No. 190, at 18.)

         As discussed above, the parties now dispute whether this construction precludes any change in amplitude during phase modulation or, instead, merely excludes amplitude modulation. An analysis of Defendants' motion from a perspective of claim construction is therefore necessary in order to resolve the parties' dispute. See O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co., Ltd., 521 F.3d 1351, 1362 (Fed. Cir. 2008) (“When the parties present a fundamental dispute regarding the scope of a claim term, it is the court's duty to resolve it.”). Legal principles regarding claim construction are set forth in the Claim Construction Memorandum and Order. (See Dkt. No. 190, at 4-8.)

         As a threshold matter, the parties appear to agree that amplitude modulation is something more than merely altering amplitude. (See Dkt. No. 369, Ex. A, Defs.' Technology Tutorial, at 18 (“Amplitude modulation (amplitude-shift keying (ASK)) works by modulating the amplitude of the wave depending on the binary electrical data signal.”).)[5] Also, the parties appear to agree that the accused instrumentalities do not use amplitude modulation. (See, e.g., ...


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