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Intellectual Ventures II LLC v. Fedex Corp.

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

March 29, 2019

INTELLECTUAL VENTURES II LLC, Plaintiff,
v.
FEDEX CORPORATION, FEDERAL EXPRESS CORPORATION, FEDEX GROUND PACKAGE SYSTEM, INC., FEDEX FREIGHT, INC., FEDEX CUSTOM CRITICAL, INC., FEDEX OFFICE AND PRINT SERVICES, INC., GENCO DISTRIBUTION SYSTEM, INC., Defendants.

          MEMORANDUM OPINION AND ORDER

          RODNEY GILSTHAP UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff Intellectual Ventures II LLC's (“IV” or “Plaintiff”) Motion for Judgment as a Matter of Law Under Rule 50(b) (Dkt. No. 561) (“the Motion”). Having considered the Motion, and for the reasons set forth below, the Court finds that the Motion should be and hereby is DENIED.

         I. BACKGROUND

         On August 31, 2016, IV filed suit against Defendants FedEx Corporation, Federal Express Corporation, FedEx Ground Package System, Inc., FedEx Freight, Inc., FedEx Custom Critical, Inc., FedEx Office and Print Services, Inc., and GENCO Distribution System, Inc. (collectively, “FedEx” or “Defendants”), alleging infringement of United States Patent Nos. 6, 909, 356 (“the '356 Patent”), 7, 199, 715 (“the '715 Patent”), 8, 494, 581 (“the '581 Patent”), and 9, 047, 586 (“the '586 Patent”) (collectively, the “Patents-in-Suit” or “Asserted Patents”). (Dkt. No. 1 ¶¶ 1-13.)

         The Court held a jury trial between May 14, 2018 and May 18, 2018, whereupon the jury returned a verdict finding each Asserted Claim of each Asserted Patent to be not infringed, that each Asserted Claim of the '581, '586, and '356 Patents were invalid, and that each Asserted Claim of the '715 Patent was not invalid. Following the verdict, the Court entered Final Judgment on May 21, 2018 in accordance with the verdict.

         II. LEGAL STANDARD

         A. Renewed Motion for Judgment as a Matter of Law “

         A motion for judgment as a matter of law [under Rule 50(b)] is a challenge to the legal sufficiency of the evidence supporting the jury's verdict.” Erfindergemeinschaft UroPep GbR v. Eli Lilly & Co., 276 F.Supp.3d 629, 643 (E.D. Tex. 2017) (“UroPep”) (Bryson, J., sitting by designation). Entry of judgment as a matter of law is therefore only appropriate when “there is no legally sufficient evidentiary basis for a reasonable jury to find as the jury did.” Guile v. United States, 422 F.3d 221, 225 (5th Cir. 2005); see also Baisden v. I'm Ready Prods., Inc., 693 F.3d 491, 498 (5th Cir. 2012) (“A district court must deny a motion for judgment as a matter of law unless the facts and inferences point so strongly and overwhelmingly in the movant's favor that reasonable jurors could not reach a contrary conclusion.”) (emphasis added) (internal quotation marks omitted).[1]

         “In evaluating a motion for judgment as a matter of law, a court must ‘draw all reasonable inferences in the light most favorable to the verdict.'” Metaswitch Networks Ltd. v. Genband U.S. LLC, No. 2:14-CV-00744-JRG, 2017 WL 3704760, at *2 (E.D. Tex. Aug. 28, 2017) (quoting E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444, 451 (5th Cir. 2013)). Courts must also avoid the temptation of revisiting credibility determinations or reweighing evidence. Id. Such determinations are, appropriately, left to the jury. Montano v. Orange Cty., Texas, 842 F.3d 865, 874 (5th Cir. 2016) (“[I]t is for the jury alone to judge the credibility of witnesses and weigh the evidence.”).

         B. Infringement

         To prove infringement under 35 U.S.C. § 271, a plaintiff must show the presence of every element, or its equivalent, in the accused product or service. Lemelson v. United States, 752 F.2d 1538, 1551 (Fed. Cir. 1985). First, the claim must be construed to determine its scope and meaning; and second, the construed claim must be compared to the accused device or service. Absolute Software, Inc. v. Stealth Signal, Inc., 659 F.3d 1121, 1129 (Fed. Cir. 2011) (citing Carroll Touch, Inc. v. Electro Mech. Sys., Inc., 15 F.3d 1573, 1576 (Fed. Cir. 1993)). “A determination of infringement is a question of fact that is reviewed for substantial evidence when tried to a jury.” ACCO Brands, Inc. v. ABA Locks Mfr. Co., 501 F.3d 1307, 1311 (Fed. Cir. 2007).

         C. Obviousness

         “Obviousness” is a matter of law based on underlying factual findings, and is grounds for unpatentability when the claimed subject matter is not identically described, if the subject matter as a whole would have been obvious to a person having ordinary skill in the field of the invention. 35 U.S.C. § 103(a); see also KSR Int'l, Inc. v. Teleflex, Inc., 550 U.S. 398, 406-07 (2007). When obviousness is based on information from a combination of sources, the question is whether a person of ordinary skill in the field would have been motivated to select and combine this information, and with a reasonable expectation of achieving the desired result. See, e.g., Merck & Cie v. Gnosis S.p.A., 808 F.3d 829, 833 (Fed. Cir. 2015).

         III. DISCUSSION

         A. Infringement of the '581 Patent

         Claims 18 and 20 of the '581 Patent provide:

         18. An apparatus, comprising:

[a] means for establishing a two-way communication channel between a server and at least one handheld device located at a field geographically distant from the server;
[b] means for accessing a program stored at the server to enable an assessment at the field using the at least one handheld device;
[c] means for managing data collected at the field using the at least one handheld device responsive to program;
[d] means for determining a geographic location of the at least one handheld device; and
[e] means for enabling communicating the data collected at the field and the geographic location of the at least one handheld device between the at least one handheld device and other devices or the server.

20. The apparatus of claim 18, further comprising means for enabling updating field operation assignments for each of the at least one handheld device.

         '581 Patent at 14:55-15:2, 15:5-7.

         IV argues that it both presenting “abundant evidence that the PowerPad and Star IV handheld devices made and operated by and for Corp., Express, and Ground meet every limitation of apparatus claims 18 and 20 of the '581 patent” and that “none of the testimony [Defendants' witnesses] provided in rebuttal overcame [Plaintiff's expert's] infringement showing.” (Dkt. No. 561 at 12, 17.)

         The Parties do not dispute that the Accused Products perform claim elements [a], [c], [d], or the elements added by dependent Claim 20. (See FedEx's Responsive Briefing, Dkt. No. 572 at 4-11.) Accordingly, the Court confines its analysis to Claim Elements [b] and [e].

         1. Claim Element [b]: “Means for Accessing . . .”

         The Court construed “means for accessing a program stored at the server to enable an assessment at the field using the at least one handheld device” to be a means-plus-function claim wherein the function is “accessing a program that is stored at the server to enable an assessment at the field using the at least one handheld device, wherein accessing a program requires more than accessing a database storing data” and the corresponding structure is “a processor, along with a user interface, RAM, ROM, configured to make a service request to a server program, and a server program configured to fulfill the request.” (Claim Construction Order, Dkt. No. 165 at 83-86.)

         IV argues that Dr. Sharony properly “identified the Court's claim construction and explained how both the Star IV and the PowerPad met the function of that limitation as construed by the Court.” (Dkt. No. 561 at 14 (citing May 14, 2018 Afternoon Session, Dkt. No. 541 at 155:21-156:23).) IV notes that Dr. Sharony explained how the devices access a program at the server using his expertise and certain FedEx documents. (Id.; see also PTX-0213, PTX-0220, PTX-0499.)

         FedEx responds that it “introduced substantial evidence that the PowerPad and Star IV do not access a program at a geographically distant server, ” because such devices not only “do not access a remote program, ” but were designed not to do so. (Dkt. No. 572 at 5 (citing May 16, 2018 Morning Session, Dkt. No. 546 at 110:16-116:11).) Specifically, FedEx asserts that its experts opined that the DWS and ROADS systems pushed data to other intermediary systems on their own accord, rather than the PowerPad and Star IV devices accessing DWS and ROADS directly. (Id. at 5-6.)

         IV replies that Dr. Sharony testified, and PTX-499 shows, that “PowerPad accesses DWS-which the parties agree is a ‘program'-for sign-on.” (Dkt. No. 577 at 2.) DWS then “sends a ‘response,' allowing the PowerPad to ‘get in return manifests and updates, '” and made similar assertions with regards to the Star IV device. (Id. (citing May 14, 2018 Afternoon Session, Dkt. No. 541 at 155:21-157:18).) IV further argues that a reasonable jury could not have credited Mr. Williams' testimony regarding the intermediary servers because “[t]hose assertions contradicted [Defense's expert] Mr. Smith's testimony that explained that those ‘intermediary servers' were actually just ‘pipes,' or ‘plumbing to move data around,' and that ‘on the road,' DWS may ‘transmit updates' to the PowerPad.” (Id. at 3 (citing May 16, 2018 Morning Session, Dkt. No. 546 at 80:2-19, 83:11-14).)

         FedEx sur-replies that PTX-213 and PTX-499 are irrelevant because they merely show a “sign-on” request, and not access that obtains the manifest. (Dkt. No. 580 at 2.)

         While Dr. Sharony testified that both the Star IV and the PowerPad met the “accessing” limitation, he did so through conclusory statements about PTX-213 and PTX-499, respectively. For example, with regards to Claim 1, Dr. Sharony used PTX-213 to illustrate that the Star IV accessed the P&D login service, the pickup listing web service, and the delivery manifest web service. (May 14, 2018 Afternoon Session, Dkt. No. 541 at 131:15-25; see also Dkt. No. 541 at 132:3-10 (“So at the start of the day, the handheld device, through the P&D login web service, has to log into the system to - in order to get the pickup listing and the delivery manifest. So once successfully logged in, these two program [sic] will provide the handheld device with the listing -- or the delivery listing, which we call the manifest -- delivery manifest, and the pickup listing or the pickup manifest.”).) Dr. Sharony repeated his belief that accessing the P&D login, pickup listing, and delivery manifest performed the “accessing a program” claim element of Claim 18. (Id. at 155:20-25.) Similarly, Dr. Sharony testified that the PowerPad performed the claim element by accessing the DWS assessment program. (Id. at 157:12-17 (“Q. Does the FedEx Express system perform accessing a program? A. Yes, it does. Q. Okay, And how so? A. By sending this request from the handheld to the DWS successful login, we get in return manifest and updates.”).)

         As to the Star IV, Mr. Williams testified that the extracted pickup and delivery manifests are not themselves programs, as the Court construed the term, because such manifests are “data files” and the Court's construction requires more than accessing a database holding data. (Id. at 114:14-115:6.) IV does not address this argument in its briefing and only appears to address PowerPad's DWS system on cross-examination. (See generally May 16, 2018 Afternoon Session, Dkt. No. 547 at 13:24-22:25.) Further, while IV asserts that Mr. Williams and Mr. Smith admitted that DWS is a “program, ” such admissions were made in the context of DWS being a “software program, ” and not a “program” as construed by the Court. (See Id. at 13:24-14:22.)

         The Court finds that a reasonable jury could have determined that the Star IV device did not perform the “accessing” claim element of Claim 18. Plaintiff's briefing does not contest that the accessed manifests are data, nor that the “programs” performing the accessing are doing more than merely accessing a database. Further, while Plaintiff asserts that “Mr. Williams did not opine on noninfringement for the ‘P&D Login web service, '” it has not identified any program stored on the login server that enables an assessment to take place.

         As to the PowerPad, Mr. Williams took a slightly different tack and testified that the manifests, listings, and updates were not accessed by the handheld device, but instead were pushed to the device from intermediate servers. For example, with regards to the PowerPad, Mr. Williams testified:

Q. In your opinion, at this start of day, does the PowerPad access a program stored on the DWS servers?
A. It does not.
Q. Can you explain to us what's shown in green at the bottom of DTX-408?
A. Green is about communications that can take place once the courier and the PowerPad device have -- have left the station are -- and are out in the field and if communications is necessary at that point.
The courier -- the bottom part of the green part is courier outbound, which you heard described as being when there's a -- an update to a pickup manifest that needs to take place, and that is pushed out to JMSQ, which is the cylindrical object. And then that, in turn, is pushed ...

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