Digital Reg of Texas, LLC v. Adobe Systems Incorporated et al

Filing 602

ORDER by Judge Claudia Wilken DENYING ADOBES 583 MOTION FOR RECONSIDERATION. (ndr, COURT STAFF) (Filed on 8/6/2014)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4

DIGITAL REG OF TEXAS, LLC,

5
6
7
8
9

No. C 12-1971 CW

Plaintiff,

ORDER DENYING
ADOBE’S MOTION FOR
RECONSIDERATION
(Docket No. 583)

v.
ADOBE SYSTEMS, INC., et al.,
Defendants.
________________________________/

United States District Court
For the Northern District of California

10

In this patent infringement case, Defendant Adobe Systems,

11

Inc. is the only Defendant remaining, with trial set to begin on

12

August 25, 2014.

13

a motion for “partial reconsideration” of the Court’s order on the

14

motions for summary judgment.

15

raised by Adobe lack merit, the Court DENIES the motion.

16

On July 14, 2014, Adobe asked for leave to file

Because all three of the arguments

Under this Court’s Civil Local Rules, a motion for

17

reconsideration may be permitted upon a showing of: (1) a material

18

difference in fact or law from what was presented to the Court

19

before entry of the order, (2) new material facts or law emerging

20

after the order, (3) a manifest failure by the Court to consider

21

material facts or dispositive legal arguments.

Civ. L.R. 7-9(b).

22

Adobe first argues that the Court should have awarded Adobe

23

summary judgment based on the construction of the term “based on

24

the results of the attempted transmission,” which is present in

25

all claims of the ‘670 patent.

26

“based on whether or not notification information was sent,” which

27

was Defendants’ proposed construction.

28

The Court construed this term as

MSJ Order at 13-14.

Adobe

1

takes issue with the fact that the Court granted summary judgment

2

based on this term for Ubisoft, but not for Adobe.

3

In moving for summary judgment, Adobe claimed that

4

Plaintiff’s infringement analysis was faulty because it was based

5

on an “application-level response,” which contradicted its

6

invalidity analysis based on a “network-level response.”

7

Defendants’ MSJ Brief at 19.

8

revolve around whether there was a network-level response or an

9

application-level response.

But the Court’s construction did not

Adobe never explained how either a

United States District Court
For the Northern District of California

10

“network-level response or an application-level response would be

11

inconsistent with the Court’s constructions of this term” and

12

therefore failed to satisfy “its initial burden of informing the

13

Court of the grounds of the summary judgment motion.”

14

at 37; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

15

contrast, Ubisoft explained that Plaintiff’s own expert testified

16

that “access to Ubisoft’s products depends on the server

17

authenticating the login information and ‘sending a message

18

back.’”

19

showed that Plaintiff could not prove that Ubisoft’s products

20

practiced the limitation as construed by the Court, summary

21

judgment in its favor was warranted.

22

MSJ Order at 42 (citations omitted).

MSJ Order
By

Because Ubisoft

Now, Adobe presents deposition excerpts and other evidence

23

that it argues establishes that its products, too, do not practice

24

the required limitation.

25

evidence rather than to its briefs.

26

arguments to the Court at summary judgment.

27

its summary judgment arguments and cannot rely on the Court to

28

sift through the countless exhibits to manufacture a summary

Notably, Adobe cites directly to the

2

Adobe did not present these
Adobe must explain

1

judgment argument.

2

Cir. 2010).

3

are not like pigs, hunting for truffles buried in briefs.’”

4

McKinzy v. IRS, 367 F. App'x 896, 897 (10th

“The reason for this requirement is obvious: ‘Judges
Id.

Adobe next argues that the Court erred in denying summary

5

judgment based on its construction of the term “token.”

6

adopted the construction the parties agreed upon, that is “a file

7

indicating whether the transaction has been approved and access

8

should be granted.”

9

token does not indicate simply that access should be granted, but

MSJ Order at 6.

The Court

The Court noted that “a

United States District Court
For the Northern District of California

10

also contains a yes/no indication.”

11

token must be capable of indicating either approval or rejection.

12

Id.

13

expert “did not opine on infringement under Adobe’s proposed

14

construction,” and thus there was no material dispute “[u]nder

15

Adobe’s proposed construction” and summary judgment was warranted.

16

Defendants’ MSJ Brief at 13.

17

conclusory.

18

Plaintiff’s expert identified and described a token for each

19

product, asserting the token complied with the Court’s claim

20

construction.

21

initial burden of showing Plaintiff’s identified tokens do not

22

exhibit either approval or rejection.

23

Id.

Put a different way, the

In its summary judgment brief, Adobe stated that Plaintiff’s

Adobe’s analysis was at best

Moreover, as noted by the Court in its order,

MSJ Order at 33.

Adobe failed to satisfy its

Adobe finally contends that it was entitled to summary

24

judgment because there was no evidence of specific intent.

25

asserted a good-faith belief of non-infringement, which

26

“eviscerates any claim of intent.”

27

(citing Commil USA, LLC v. Cisco Sys., Inc., 720 F.3d 1361, 1367-

28

68 (Fed. Cir. 2013).

Defendants’ MSJ Brief at 10

Adobe pointed to Plaintiff’s expert’s
3

Adobe

acknowledgement that “Adobe’s expert has determined for a number

2

of reasons that Adobe does not infringe.”

3

(citing Devanbu Depo. at 506:5-12, 507:3-13).1

4

assessed based on an expert’s opinion sought at the time of

5

infringement, not one retained years later solely for the purpose

6

of testifying at trial.

7

(discussing Cisco’s good-faith belief of invalidity at the time of

8

infringement and holding that “the jury must merely decide whether

9

Cisco possessed that belief in good-faith”) (emphasis added); DSU

10
United States District Court
For the Northern District of California

1

Med. Corp. v. JMS Co., Ltd., 471 F.3d 1293, 1307 (Fed. Cir. 2006)

11

(upholding jury decision that defendant in good faith believed it

12

did not infringe because, around the time infringement began,

13

defendant obtained several opinions of counsel that the product

14

did not infringe).

15

of “good-faith belief” would require granting summary judgment on

16

the same point in nearly every case.

Defendants’ MSJ at 10
But good faith is

See Commil USA, LLC, 720 F.3d at 1367-68

To accept Adobe’s assertion during litigation

17
18
19
20
21
22
23
24
25
26

1

In its examination of Plaintiff’s expert, Adobe made clear
it was asking about its own expert’s present-day opinion:
Q: [. . .] You don’t know today whether or not Adobe believes
it infringes?
A: I don’t know what they believe.
[. . .]
Q: You know that Adobe has hired an -- an expert to testify
and opine as to whether or not the products infringe the
patents; right?
A: Yes.
Q: And you understand that Adobe’s expert has determined for
a number of reasons that Adobe does not infringe; right?
A: Yes.

27
28

Devanbu Depo. at 506:9-12, 506:24-507:6.
4

1

Moreover, as the Court discussed in its order, there is
evidence in the record to create an inference that Adobe

3

instructed its users in the operation of the product, which in

4

combination with its software, would cause its users to infringe.

5

See Plaintiff’s Reply Brief at 10; MSJ Order at 29-31 (citing to

6

Adobe’s license agreements, user manuals, and Defendants’ expert’s

7

opinion discussing Adobe’s use of licensing-related code to

8

maintain control over the user’s operation of the product).

9

enough that this evidence shows Adobe specifically intended users

10
United States District Court
For the Northern District of California

2

to go through the patented digital rights management process; it

11

need not show that Adobe specifically intended users to undergo

12

the antecedent decision to attempt to circumvent the system.

13

Med. Corp., 471 F.3d at 1306 (discussing whether defendant

14

encouraged another's infringement and specifically intended

15

infringing acts to occur).

16

for attempting to circumvent digital rights management, but

17

processes for maintaining it.

18
19
20

It is

DSU

The patents do not describe methods

IT IS SO ORDERED.
Dated: 8/6/2014
CLAUDIA WILKEN
United States District Judge

21
22
23
24
25
26
27
28
5