Morris Reese v. TracFone Wireless Services Inc

Filing 38

ORDER GRANTING TracFone's MOTION FOR SUMMARY JUDGMENT 30 . A Judgment will issue. The parties are directed to file a joint status report detailing what issues, if any, remain for this Court to resolve by Judge Otis D. Wright, II.(lc). Modified on 5/9/2014 (lc).

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United States District Court
Central District of California

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MORRIS REESE,
Plaintiff,

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Case No. 2:13-cv-05196-ODW(PLAx)

v.

ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT [30]

TRACFONE WIRELESS, INC.,
Defendant.

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I.

INTRODUCTION

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Plaintiff Morris Reese notified virtually the entire cellular wireless industry of

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U.S. Patent No. 6,868,150 (“the ’150 Patent”) in 2005 through letters alleging that

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providing call-waiting and caller-ID services infringed the ’150 Patent. But it was not

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until May 2013—more than eight years later—that Reese filed patent-infringement

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suits against the five cellular wireless providers.

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wireless providers, including Defendant TracFone Wireless, Inc., all individually filed

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motions for summary judgment against Reese based on the defense of laches. Faced

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with dismissal of his current suits because of his prolonged delay, Reese now offers

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excuses—such as his illness and involvement in other litigation—to justify his delay

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in bringing suit. Because none of Reese’s explanations excuse his delay, the Court

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GRANTS TracFone’s Motion for Summary Judgment. (ECF No. 30.)

Finding this delay unfair, the

II.

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FACTUAL BACKGROUND

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Reese is the sole named inventor on the ’150 Patent, which issued on March 15,

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2005. (SUF ¶¶ 1–2; Ex. 1.) The ’150 Patent relates to the combination of Caller ID

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and Call Waiting. () The ’150 Patent is a continuation of the ’009 Patent which issued

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July 30, 2002. The ’150 Patent expired in 2011, two years prior to Reese’s suit against

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TracFone. (Id. ¶ 3.)

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TracFone sells prepaid wireless cellular devices throughout the United States.

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(Id.¶ 5.) TracFone is a Mobile Virtual Network Operator (“MNVO”) that does not

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own or operate any wireless communication networks. (Id.¶ 4.) Rather, TracFone

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utilizes the wireless communication networks provided by network operators—

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including AT&T Mobility II LLC, Verizon Wireless Services, LLC, and T-Mobile

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USA, Inc. (Id. ¶ 5.) TracFone is a customer and indemnitee of the network operators.

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(Id. ¶¶ 4, 22.)

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TracFone sells prepaid wireless cellular devices at prominent national

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retailers—including Wal-Mart, CVS, Walgreens and Dollar General. (Id. ¶ 7.)

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TracFone has been operating under the TracFone brand since 1996. (Id. ¶ 6.) In 2005,

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TracFone had over 6 million customers. (Id. ¶ 7.) By 2007 TracFone was the sixth-

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largest wireless provider in the Country with approximately 9.5 million customers.

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(Id. ¶¶ 9–10.) TracFone’s prepaid wireless cellular devices have included call-waiting

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and caller-ID features since 2001. (Id. ¶ 14.) TracFone has continuously advertised

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and marketed those features. (Id.)

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Between April and June of 2005, Reese sent infringement-allegation letters to at

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least twelve different telecommunications companies—BellSouth, Cingular Wireless,

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Motorola, Nextel, Nokia, Qwest Communications, Samsung, SBC Communications,

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Sprint, T-Mobile, Verizon Communications, and Verizon Wireless.

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TracFone did not receive an infringement-allegation letter from Reese. (Id.) Reese

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asserts that he was not aware of TracFone at the time he sent the infringement-

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allegation letters. (Reese Decl. ¶ 13.)

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(Id. ¶ 15.)

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Between 2005 and 2013, Reese litigated several other patent-infringement

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lawsuits across the country.1 (SUF ¶ 16.) Four of these suits involved the ’150 Patent

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or its immediate parent. (Id. ¶ 17.) Reese was represented by counsel for all of these

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suits, with the exception of Reese v. Verizon Cal., Inc. et al., Case No. CV-11-01934

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SJO (C.D. Cal. Aug. 11, 2011), which he litigated pro se. (Reese Decl. ¶ 33.)

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From 2000 to 2008, Reese experienced serious heath problems. Reese began

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dialysis treatments for renal failure in 2000. (Id. ¶ 29.) Reese’s dialysis treatments

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were performed three times per week until Reese had a kidney transplant in 2008. (Id.

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¶¶ 30–32.)

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On May 29, 2013, Reese filed suit against TracFone—along with the cellular

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wireless providers who operate the networks: Verizon Wireless, Sprint Nextel

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Corporation, United States Cellular Corporation, AT&T Mobility LLC, and T-Mobile

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USA, Inc. (Morris Reese v. Sprint Nextel Corporation et al., 2:13-cv-03811-ODW-

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PLA (C.D. Cal. May 29, 2013) ECF No. 1.) The Court severed the case on July 15,

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2013. (Id. ECF No. 18.) Reese refiled a separate complaint against TracFone on July

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18, 2013. (ECF No. 1.)
III.

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LEGAL STANDARD

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Summary judgment should be granted if there are no genuine issues of material

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fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

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56(c). The moving party bears the initial burden of establishing the absence of a

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genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

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Once the moving party has met its burden, the nonmoving party must go beyond the

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Reese v. BellSouth Telecommunications, No. 5:97-cv-00568-BO (E.D.N.C Nov. 14, 1997); Reese
v. U.S. West Inc., No. 98-cv-80575-CRW (S.D. Iowa Mar. 12, 1999) (transferred to Reese v. U.S.
West Inc., No. 1:99-cv-00773-WDM-MJW (D. Col. Sept. 23, 2002)); N. Telecom, Inc. v. Reese, No.
2:98-cv- 09591-LGB (C.D. Cal. Feb. 9, 1999) (transferred to N. Telecom, Inc. v. Reese, No. 4:99-cv80081-CRW (S.D. Iowa Mar. 10, 1999)); Reese v. Aastra Technologies, No. 2:03-cv-00267-TJW
(E.D. Tex. Feb. 9, 2005); Reese v. Samsung Telecommunications America, L.P., No. 2:05-cv- 00415DF (E.D. Tex. Jan. 31, 2007); Reese v. Southwestern Bell Telephone, L.P., et. al., Case No. 2:07CV-219 (E.D. Tex. Dec. 23, 2008); and Reese v. Verizon California, Inc. and AT&T California,
Case No. CV-11-01934 SJO (C.D. Cal. Dec. 21, 2012).

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pleadings and identify specific facts through admissible evidence that show a genuine

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issue for trial. Id.; Fed. R. Civ. P. 56(c). Conclusory or speculative testimony in

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affidavits and moving papers is insufficient to raise genuine issues of fact and defeat

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summary judgment. Thornhill’s Publ’g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.

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1979).

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A genuine issue of material fact must be more than a scintilla of evidence, or

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evidence that is merely colorable or not significantly probative. Addisu v. Fred Meyer,

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198 F.3d 1130, 1134 (9th Cir. 2000).

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resolution of that fact might affect the outcome of the suit under the governing law.

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1968). An issue is “genuine” if

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the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving

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party. Id. Where the moving and nonmoving parties’ versions of events differ, courts

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are required to view the facts and draw reasonable inferences in the light most

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favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

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IV.

A disputed fact is “material” where the

DISCUSSION

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In the interest of fairness, those who are granted a monopoly under the patent

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system have an obligation to enforce their rights in a timely manner. A defendant in a

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patent-infringement suit may raise the equitable defense of laches when the plaintiff is

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dilatory bringing suit and that delay prejudices the defendant. A.C. Aukerman Co. v.

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R.L. Chaides Const. Co., 960 F.2d 1020, 1030 (Fed. Cir. 1992). In patent cases, laches

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bars recovery of damages for any infringement that occurs prior to the filing of suit.

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Id. at 1040. A laches defense is a matter within the trial court’s discretion based on

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consideration of all of the facts in a particular case. Id. at 1040–41.

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To prevail on a laches defense, a defendant must prove by a preponderance of

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the evidence that: (1) the plaintiff knew or should have known of the infringement and

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with that knowledge delayed filing suit for an unreasonable and inexcusable length of

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time, and (2) the defendant was materially prejudiced by the delay. Id. at 1032; see

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also Hearing Components, Inc. v. Shure, Inc., 600 F.3d 1357, 1375 (Fed. Cir. 2010).

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Where the delay in filing the suit exceeds six years, the court will presume the delay

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was unreasonable and prejudicial to the defendant. 35 U.S.C. § 286; Hearing, 600

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F.3d at 1375 (citing Aukerman, 960 F.2d at 1035–36.) The burden is then on the

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plaintiff to prove the existence and reasonableness of an excuse for the delay, and to

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show a lack of prejudice to the infringer. Hearing, 600 F.3d at 1375.

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Determining the length of the delay involves two sub-issues: when the delay

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period begins to run and when the delay period ends. The delay period begins to run

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from the time that the plaintiff had actual or constructive knowledge of the alleged

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infringing activities. Aukerman, 960 F.2d at 1032; Hearing Components, 600 F.3d at

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1375. But the plaintiff need not be certain that the conduct is infringing; time starts to

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run when the patentee is aware of sufficient facts to form a reasonable belief that some

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infringing conduct exists. Aukerman, 960 F.2d at 1032. The delay period ends no

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later than the date of the filing of suit. (Id.)

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The reasonableness of the delay is not determined by application of mechanical

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rules. Aukerman, 960 F.2d at 1032. Rather, the reasonableness of the delay depends

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on the particular facts and circumstances of the individual case. Id. The court must

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consider and weigh any justification offered by the plaintiff for its delay. Id. at 1033.

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Prejudice to the defendant may be either economic or evidentiary.

Id.

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Economic prejudice arises when a defendant incurs damages that would likely have

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been prevented by earlier suit. See id. Economic prejudice is not merely damages

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attributable to patent infringement liability. Id. at 1033. Evidentiary or “defense”

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prejudice arises when the defendant can no longer present a full and fair defense on

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the merits due to the plaintiff’s delay. Id. at 1032. This inability may be occasioned

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by “the loss of records, the death of a witness, [or] the unreliability of memories of

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long past events.” Id.

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TracFone asserts that it is entitled to a laches presumption because Reese

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delayed filing his patent-infringement suit for over six years after constructive

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knowledge of TracFone’s alleged infringement. In the alternative, TracFone asserts

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that it can claim the benefit of the other Defendants’ laches presumption as a customer

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and indemnitee of the network providers. Reese argues that TracFone is not entitled

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to a laches presumption because he was not aware of TracFone at the time he sent the

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letters to the other wireless-provider defendants. In the alternative, Reese argues that

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he can rebut the laches presumption because his delay was reasonable and resulted in

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no prejudice to TracFone. The Court considers each in turn.

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A. Laches Presumption

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TracFone argues that Reese had constructive knowledge of TracFone’s

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allegedly infringing products in 2005—or at the very least 2007. TracFone asserts

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that regardless of which date the Court accepts, Reese’s failure to file suit until 2013

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entitles TracFone to a presumption of laches under § 286.

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because he was not aware of TracFone at the time he sent the letters to the other

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wireless-carrier Defendants the Court should not impose on him constructive

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knowledge of TracFone’s infringement.

Reese contends that

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The equitable nature of laches does not demand actual knowledge of

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infringement to trigger. See Aukerman, 960 F.2d at 1032. The delay period begins at

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“the time the patentee knew, or in the exercise of reasonable diligence should have

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known, of the allegedly infringing activity.” Id. Thus, in some circumstances courts

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impose an affirmative duty on patent owners to police their rights, and will impose

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constructive knowledge based on the required reasonable, diligent inquiry.

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Imposition of constructive knowledge of infringement is appropriate in

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circumstances where there are “pervasive, open, and notorious activities” that a

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reasonable patentee would suspect were infringing. Wanlass v. General Elec. Co., 148

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F.3d 1334, 1338 (Fed. Cir. 1998). Significant “sales, marketing, publication, or public

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use of a product similar to or embodying technology similar to the patented invention

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. . . gives rise to a duty to investigate whether there is infringement. Id.; Hall, 93 F.3d

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at 1553. A duty to investigate may also be imputed when “[the patentee] has no actual

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knowledge of the sales, marketing, publication, public use, or other conspicuous

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activities of potential infringement if these activities are sufficiently prevalent in the

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inventor’s field of endeavor.” Id.

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Based on the undisputed facts, Reese was, at the latest, on constructive notice of

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TracFone’s infringing activity as of 2007, when TracFone became the sixth-largest

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wireless provider as measured by customer base. (SUF ¶ 10.) Even if Reese had no

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actual knowledge of TracFone’s sales and marketing—which is doubtful considering

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TracFone’s well-established nationwide business—he may still be charged with

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constructive knowledge of TracFone’s potential infringement based on its prevalence

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in the field.

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In 2007, TracFone’s marketed and sold its wireless cellular devices to over 6

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million customers. (Id.¶ 10.) Its activities were open, pervasive, notorious, and fit

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squarely within Reese’s field of endeavor—telecommunications. It is undisputed that

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TracFone’s wireless cellular devices utilized caller-ID and call-waiting technology

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since at least 2001. (Id. ¶¶ 6, 14.) It is also undisputed that TracFone’s wireless

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cellular devices were sold by well-known nationwide retailers such as Wal-Mart,

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CVS, and Dollar General. (Id. ¶ 7.) Despite TracFone’s commercial success,2 Reese

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never undertook any investigation of TracFone and its infringing activities. Reese

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ignored TracFone when he sent the 2005 infringement-allegation letters to the

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wireless-carrier defendants—despite the fact that TracFone is a competitor of those

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defendants in a field with few competitors.

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circumstances, would have at the very least investigated TracFone—and Reese’s

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active enforcement history demonstrates that Reese is a more-than-capable litigant,

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shrewd at enforcing his patent rights.

A reasonable patentee, under the

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Of course Reese did not have a duty to police the entire wireless-

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telecommunications industry by testing any and all questionable products. But the

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TracFone’s success has continued. Its customer base has increased over time, swelling to 8 million
in 2006, 9.5 million in 2007, 11 million in 2008, 14 million in 2009, and over 17.5 million in 2010.
(SUF ¶¶ 9–13.)

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law imposes a duty to investigate a particular product if and when publicly available

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information about it should have led him to suspect that product of infringing. Accord

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Wanlass, 148 F.3d at 1338; Hall, 93 F.3d at 1553 (finding constructive knowledge

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where the defendant sold and marketed allegedly infringing products through print

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advertisements and trade shows) Avocet Sports Tech. Inc v. Polar Electro Inc, No. C-

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12-02234 EDL, 2013 WL 1729668 at *4–5 (N.D. Cal. Apr. 16, 2013); I/P Engine, Inc.

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v. AOL Inc., No. 2:11cv512, 2012 WL 5880265, at *2–6 (E.D. Va. Nov. 20, 2012);

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Crown Packaging Tech., Inc. v. Rexam Beverage Can Co., No. 05–608 (MPT), 2010

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WL 170249, at *4–7 (D. Del. Jan. 15, 2010).

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Accordingly, after considering the totality of undisputed evidence presented, the

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Court finds it appropriate to impose on Reese constructive notice of TracFone’s

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infringing products as of 2007. Reese did not file his infringement suit against

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TracFone until 2013, which amounts to a six-year delay. Thus, under § 286, TracFone

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is entitled to the laches presumption.3 Consequently, the burden is on Reese to “come

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forward with evidence sufficient to put the existence of these presumed undisputed

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facts into genuine dispute, either by showing that the delay was reasonable or that the

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movant did not suffer prejudice caused by the wait.” Id. at 1038.

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B. Reasonableness of the delay

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Reese argues that even if he can be charged with knowledge of TracFone’s

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infringement in 2005, his delay in filing suit was reasonable. Reese proffers two

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justifications for his delay: his involvement in other litigation and his worsening

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medical condition. Reese also claims he is entitled to leniency because he was

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representing himself for some of the litigation. The Court addresses each in turn.

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First, Reese argues that his six-year delay in filing suit against TracFone was

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reasonable because he was extensively involved in other litigation. On August 31,

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Because the Court finds that TracFone is entitled to the laches presumption based on Reese’s
constructive knowledge of TracFone’s alleged infringement, it need not determine whether
TracFone, as a customer and indemnitee of the network-provider defendants, can claim the benefit of
their laches presumption.

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2005, Reese filed suit against cellular phone manufacturers Samsung, Motorola, Sony,

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Siemens, LG, RiM and Palm, alleging infringement of the ’009 Patent (the immediate

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patent of the ’150 Patent). (Reese Decl. ¶ 17.) That suit continued through January

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31, 2007. (Id. ¶ 18.) Four months later, Reese sued land-line telephone service

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providers Southwestern Bell Telephone Company, GTE Southwest, and their parent

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companies AT&T and Verizon, for infringement of the ’150 Patent. (Id. ¶ 21.) Reese

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voluntarily dismissed AT&T and Verizon from that action, but later brought a separate

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suit against the same companies that lasted from March 2011 to December 21, 2012.

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(Id. ¶¶ 24, 33.) Approximately five months later, Reese filed this action against

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TracFone, again alleging infringement of the ’150 Patent.

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Involvement in other enforcement litigation may, in some circumstances,

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excuse a plaintiff’s delay in suing an alleged infringer. But the Federal Circuit has

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held that a plaintiff’s calculated choice to proceed with certain lawsuits while delaying

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others—absent other factors—is a strategic decision that does not excuse or otherwise

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toll the presumption period for laches. Hall v. Aqua Queen Mfg., Inc., 93 F.3d 1548,

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1554 (Fed. Cir. 1996).

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In Hall, the Federal Circuit noted that delay occasioned by involvement in other

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enforcement litigation may be reasonable if the alleged infringer has knowledge of

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(1) the existence of the other litigation, and (2) the plaintiff’s intent to enforce its

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rights against the infringer at the conclusion of the other litigation. Hall, 93 F.3d at

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1554; accord Aukerman, 960 F.2d at 1039. Here, there is no evidence that TracFone

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knew of Reese’s other litigation, nor of his intent to sue TracFone after it concluded.

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Reese’s choice to strategically pursue other lawsuits while ignoring TracFone is

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legally insufficient to overcome the presumption of unreasonable delay.

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Second, Reese argues that his delay in bringing suit was reasonable because of

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the serious health problems he experienced from 2000 to 2008. He argues that his

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ability to sue TracFone was significantly restricted because of his frequent dialysis

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treatments and eventual kidney transplant.

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Generally, illness is not recognized as an adequate excuse for a plaintiff’s delay

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in bringing suit. And although Reese certainly was afflicted with a debilitating illness,

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Reese’s assertion that his delay was necessary because of his failing health is directly

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contradicted by his previous excuse—his extensive involvement in other litigation.

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Notwithstanding his poor health, Reese was able to file multiple suits against other

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infringers during his illness and litigate them to conclusion. (Reese Decl. ¶¶ 17–33.)

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The fact that Reese was able to competently litigate several other lawsuits undermines

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his contention that he was physically unable to pursue lawsuits against TracFone.

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Moreover, Reese ignores the five years that have passed since his kidney

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transplant. Even after his health issues ended in 2008, Reese did and said nothing

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until he filed suit in 2013. Reese does not assert that his health issues continued after

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2008. Thus, at a minimum Reese had three years after the resolution of his health

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issues before laches would be presumed.

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Finally, an inability to find willing counsel, another of Reese’s excuses, is

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widely rejected as a legally cognizable reason to excuse an unreasonable delay in

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filing suit. Hall, 93 F.3d at 1554. Additionally, Reese’s litigation history shows that

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he has used multiple counsel at various times, and was fully capable of engaging in

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different litigation activities with different counsel—or by himself.

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C. Prejudice

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A plaintiff can also rebut the laches presumption by raising a genuine fact issue

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regarding the absence of prejudice to the defendant. Aukerman, 960 F.2d 1030. Reese

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contends that his delay did not materially prejudice TracFone. But Reese attempts to

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prove this lack of prejudice by asserting that TracFone has failed to demonstrate that it

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has been prejudiced by Reese’s delay—thus placing the burden of production on

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TracFone.

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production on the plaintiff. Hall, 93 F.3d at 1553. Thus it is Reese’s burden to come

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forward with affirmative evidence of a lack of prejudice. TracFone may remain

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This is incorrect; the Auckerman presumption places the burden of

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“utterly mute on the issue of prejudice and nonetheless prevail[].” Hall, 93 F.3d at

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1554.
1. Evidentiary prejudice

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Reese has provided no affirmative evidence that TracFone will not suffer

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evidentiary prejudice from his eight-year delay. In contrast, TracFone argues that they

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will suffer evidentiary prejudice because Reese is unable to account for evidence

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relevant to TracFone’s defense of this action. Reese does not dispute that he no longer

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has a complete of set documents produced in or generated during the course of his

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prior litigation relating to ’150 Patent. (SUF ¶ 18; Mot. Exs. 13, 14.) To date, Reese

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has been unable to produce all the documents that existed for the US West, Northern

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Telecom, Aastra, Samsung, or Verizon California cases. Additionally, Reese does not

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dispute that he no longer has a complete set of licensing agreements for the ’150 or

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related patents. (SUF ¶ 19; Mot. Exs. 13,14.) Reese’s prior counsel also admitted to

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destroying 68 folders of documents related to Reese’s prior litigation—some of which

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directly involved the ’150 Patent. (SUF ¶ 20, Ex. 15.)
The loss of these documents is problematic for three major reasons. First,

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because

the

licenses—many

of

which

were

given

to

cell-phone-handset

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manufacturers—may protect TracFone from Reese’s infringement allegations.

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Reese licensed customers to use handsets that subscribe to TracFone’s services, that

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license may protect TracFone from infringement claims. Second, those licenses are

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essential to allow TracFone to propose a reasonable-royalty rate for any potential

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damages involving unlicensed products.

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defense and counterclaim will likely suffer from Reese’s inability to produce

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documentation from his prior litigations—documentation which TracFone asserts was

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material and not disclosed during the examination of the ’150 Patent. In the absence

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of this evidence, TracFone’s opportunity to defend itself against Reese’s infringement

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claim is somewhat less than “full and fair.”

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If

Finally, TracFone’s inequitable conduct

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Reese attempts to argue that TracFone should endeavor to reconstruct the

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evidence for its defense, which he alleges should still be available from some other

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sources. But Reese presents no authority for his novel proposition that TracFone is

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required to attempt to gather whatever evidence remains and hope that it works for

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their defense. This burden lies with Reese, not TracFone. Consequently, Reese has

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not met his burden to come forward with affirmative evidence of a lack of evidentiary

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prejudice.
2. Economic prejudice

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Reese also argues that TracFone has failed to prove that it has been

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economically prejudiced by Reese’s delay in filing. But again, it is not TracFone’s

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burden, as Reese argues, to demonstrate economic prejudice in light of the laches

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presumption. Rather, Reese has the burden of proving that TracFone has not been

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economically prejudiced by Reese’s delay—which he does not attempt to do in his

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Opposition. Reese merely attacks TracFone’s assertions of economic prejudice as

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“largely conclusory and lack[ing] any proof.”

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Accordingly, Reese has failed to adduce any affirmative evidence that TracFone has

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not been economically prejudiced by Reese’s at least six-year delay in filing suit.

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(Opp’n 15.) This is insufficient.

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V.

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CONCLUSION

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Based on the undisputed facts, TracFone is entitled to the presumption of

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laches. Reese has failed to prove that his delay was reasonable, or that TracFone

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suffered no prejudice as a result of the delay. Accordingly, for the reasons discussed

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above, TracFone’s Motion for Summary Judgment is GRANTED. (ECF No. 30.) A

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Judgment will issue. The parties are directed to file a joint status report detailing what

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issues, if any, remain for this Court to resolve.

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IT IS SO ORDERED.

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May 9, 2014

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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