United Access Technologies LLC v. AT&T Inc. et al

Filing 135

MEMORANDUM OPINION re motion for summary judgment of non-infringement. Signed by Judge Leonard P. Stark on 8/22/17. Associated Cases: 1:11-cv-00338-LPS, 1:11-cv-00339-LPS, 1:11-cv-00341-LPS (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
UNITED ACCESS TECHNOLOGIES, LLC,
Plaintiff,
· C.A. No. 11-338-LPS

v.
AT&T CORP., AT&T SERVICES, INC., and
SBC INTERNET SERVICES, INC.
Defendants.

I\

UNITED ACCESS TECHNOLOGIES, LLC,
Plaintiff,

v.

C.A. No. 11-339-LPS

CENTURYTEL BROADBAND SERVICES,
LLGand QWEST CORPORATION,
Defendants.
UNITED ACCESS TECHNOLOGIES, LLC,
Plaintiff,

v.

C.A. No. 11-341-LPS

FRONTIER COMMUNICATIONS
CORPORATION,
Defendant.

Stamatios Stamoulis and Richard C. Weinblatt, STAMOULIS & WEINBLATT LLC,
Wilmington, DE.
Steven Callahan, Martin Robson, Anthony M. Garza, and C. Luke Nelson; CHARRON
CALLAHAN ROBSON & GARZA, Dallas, TX
Attorneys for Plaintiff.

Benjamin J. Schladweiler, ROSS ARONSTAM & MORITZ LLP, Wilmington, DE
Bryant C. Boren, Jr., Jon V. Swenson, Elizabeth Boggs, Jason German, and Jay B. Schiller,
BAKER BOTTS LLP, Palo Alto, CA
Attorneys for Defendants AT&T Corp., AT&T Services, Inc., and SBC Internet Services,
LLC.

Richard L. Renck, DUANE MORRIS LLP, Wilmington, DE
Matthew C. Gaudet, Alison H. Hutton, and Jennifer H. Forte, DUANE MORRIS LLP, Atlanta,
GA
Attorneys for Defendants CenturyTel Broadband Services, LLC and Qwest Corporation.

Phillip A. Rovner and Jonathan A. Choa, POTTER ANDERSON & CORROON, LLP,
Wilmington, DE
Timothy R. Shannon, Taylor R. Neff, and Seth S. Coburn, VERRILL DANA, LLP, Portland, ME
Attorneys for Defendant Frontier Communications Corporation.

MEMORANDUM OPINION

August 22, 2017
Wilmington, Delaware

l~.

STARK, U.S. District Judge:

On April 15, 2011, Plaintiff United Access Technologies LLC ("United Access") filed
suit against Defendants AT&T Corp., AT&T Services, Inc., and SBC Internet Services, LLC;
CenturyTel Broadband Services, LLC and Qwest Corporation; and Frontier Communications
Corporation (collectively, "Defendants"), alleging infringement of U.S. Patent Nos. 5,844,596,
6,243,446, and 6,542,585, 1 which describe and claim systems for transmitting data to residences
or businesses over existing telephone wiring without interfering with telephone signals or the
switching equipment that is part of the public switched telephone network.
The Court issued a claim construction opinion on November 4, 2016. (See C.A. No. 11339-LPS D.I. 178)2 In light of that claim construction, the parties jointly requested that
Defendants be allowed to file an early motion for summary judgment of non-infringement. (See
D.I. 184)- Presently before the Court is that motion for summary judgment of non-infringement.
The Court heard oral argument on February 27, 2017. (See D.I. 200 ("Tr."))
For the reasons stated below, the Court will grant Defendants' motion for summary
judgment of non-infringem~nt.

I.

LEGAL STANDARDS
Under Rule 56(a) of the Federal Rules of Civil Procedure, "[t]he court shall grant

summary judgment if 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." The moving party bears the burden of

1

United Access asserts claim 61 of the '596 patent, claims 1-5 of the '446 patent, and
claims 1, 2, 4, 8, and 9 of the '585 patent. (See D.I.168 at 1)
2

Unless otherwise noted, the references to the docket are to C.A. No. 11-339-LPS.

1

demonstrating the absence of a genuine issue of material fact. See Matsushita Elec. Indus. Co.,
. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). An assertion that a fact cannot be - or,
alternatively, is - genuinely disputed must be supported either by "citing to particular parts of
materials in the record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials," or by "showing that the materials cited do
riot establish the absence or presence of a genuine dispute, ot that an adverse party cannot
produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(l)(A) & (B). If the
moving.party has carried its burden, the nonmovant must then "come forward with specific facts
showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 587 (internal quotation
marks omitted). The Court will "draw all reasonable inferences in favor of the nonmoving party,
and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson
Plumbing Prods., Inc., 530 U~S. 133, 150 (2000).
To defeat a motion for summary judgment, the nonmoving party must "do more than
simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475
U.S. at 586; see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (stating
party opposing summary judgment "must present more than just bare assertions, conclusory
allegations or suspicions to show the existence of a genuine issue'') (internal quotation marks
omitted). The "mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;" a factual dispute is genuine
only where "the evidence is such that a reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "If the evidence is merely

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colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50
(internal citations omitted); see also Celotex Corp.

V.

Catrett, 477 U.S. 317, 322 (1986) (stating

entry of summ~ry judgment is mandated "against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party's.case, and on which that party will
bear the burden of proof at trial"). Thus, the "mere existence of a scintilla. of evidence" in
support of the nonmoving party's position is insufficient to defeat a motion for· summary
judgment; there must be "evidence on which the jury could reasonably find" for the nonmoving
party. Anderson, 477 U.S. at 252.
II.

DISCUSSION
Defendants move for summary judgment on the grounds that (1) the remote-terminal

embodiments of the accused systems do not literally meet the "signal interface" limitation and
(2) predicating infringement of that limitation on the doctrine of equivalents would result in
claim vitiation. 3

A.

Literal Infringement

The present dispute concerns the signal interface of the asserted claims. The Court
construed "signal interface" to mean "a device interposed on the opposite end (i.e., the local side)
of the public trunk line (i.e., the telephone lines comprising the public telephone network) from
the telephone exchange that performs the recited functions of the incorporated circuitry." (D.I.
178 at 6) The Court "conclude[ d] that each [claim] includes a limitation that the signal interface

3

Defendants also move for summary judgment of non-infringement for the control-office
embodiments, which United Access does not oppose. (See D.I. 190 at 13-14) Accordingly, the
Court will grant summary judgment of non-infringement, both literally and by equivalents, with
respect to these embodiments.
3

be located at the far end of the public trunk line, at the point where the line connects to the local
telephone network." (Id. at 8) That point is "located at the intersection of the public telephone
lines and the lines that run separately to particular structures." (Id.) Thus, with respect to
whether the term includes a positional limitation, the Court agreed with Defendants that the
signal interface "must be located at the boundary of the public and local networks." (Id.)
Defendants contend that summary judgment of non-infringement is warranted with
respect to the remote-terminal embodiments because the signal interface of the accused systems
is located within the public telephone network and, therefore, cannot satisfy the positional .
requirement of the signal interface. (See D.I. 186 at 9) United Access does not dispute the
general configuration of the remote-terminal embodiments. (See D.I. 196 at 1) Rather, United
Access essentially contends that there remains a series of claim construction disputes.
United Access first contends that the positional limitation of the signal interface term
should not turn on the meaning of "public telephone network," which is part of the Court's claim
construction. United Access suggests that the proper inquiry here is, instead, to determine where
the local end of the public trunk line is located, and argues that the question should be answered
without reference to the public telephone network. The problem with this contention is that the
Court already rejected it during claim construction. At that time, United Access argued that the
Court should not construe "public trunk line" (see D.I. 151 at 17) and that Defendants' proposed
construction of that term was inconsistent with its correct meaning (see D.I. 166 at 8-9) .. The
Court resolved the dispute against United Access, construing signal interface to incorporate
Defendants' proposed construction of "public trunk line," that is "the telephone lines comprising
the public telephone network." (D.I. 178 at·6) United Access presents no compelling reason to

4

revisit the previously-adopted construction. See Sunovion Pharm.,.Inc.·v. Actavis, Inc., 2014 WL.
2531513, at *1-2 (D. Del. June 3, 2014).
Unite_d Access alternatively contends that, even accepting the Court's construction of
"signal interface," there is a dispute about the meaning of "public telephone network" that still
requires resolution. (See D.I. 199 at 1) (citing 02 Micro Int'! Ltd. v. Beyond Innovation Tech.

Co., 521F.3d1351, 1362 (Fed. Cir. 2008)) United Access argues that ownership of the lines is
not the proper criterion by which to distinguish between lines that are part of the public telephone
network and those that are not. United Access does not propose any particular construction for
these terms but contends that the specification treats certain lines, the "local loops" -which are
undisputedly owned by telephone companies - as being part of the local network. Again, the
Court previously considered th~s contention (see D .I. 171 at 6-7, 4 7-48) and, notwithstanding
United Access' opposition, adopted Defendants' proposed construction. Thus, United Access
does not present a genuine dispute about the meaning of "public telephone network," as the
argument' United Access raises about the import of "local loops" on the positional requirements
of the signal interface has already been resolved in Defendants' favor.
Given that United Access does not dispute the factual issues relevant to the question of
infringement (see D .I. 196 at 1), the Court determines that there is no genuine dispute that the
signal interface in the remote-terminal embodiments does not sit at the boundary of the public
telephone network and a local network, as required by the claims. On the record created by the
parties, taking all of the evidence in the light most favorable to United Access and drawing all
reasonable inferences in favor of United Access, no reasonable factfinder could find that·
Defendants' systems meet the positional requirement of the "signal interface," as construed by

5

the Court.
Defendants describe the remote-terminal systems as follows. A Digital Subscriber Loop
Access Multiplexer ("DSLAM") - the accused signal interface in Defendants' systems - sits on
the public telephone network between the central office and the customers. (See D.I. 187 at if 11;
D.I. 186 Ex. 1 at ir 11; Ex. 2 at if 11) The DSLAM is a data aggregator that "accepts the data
from upstream switching equipment and directs the data onto the twisted pair telephone wires
serving particular subscribers." (D.I. 186 Ex. 2 at if 7). At the DSLAM, the twisted pairs are
bundled together into a thick cable and run to multiple serving terminals. (See id. at ifif 8, 12) At
the serving terminals, the cable is split, such that the twisted pair wires run separately to each
residence or building. (See id.) The twisted pairs terminate at a Network Interface Device
("NID"), typically located at the side of a house or building. (See id. at ifif 9, 12) Defendants
identify the NID as "the point of demarcation between the public telephone network (i.e., the
telephone lines and other equipment owned by the telephone company) and the customer's
internal private 'local network."' (Id. at if 9) Thus, according to Defendants, the DSLAM is
located within the public telephone network, not at the local end of the public trunk line.
United Access does not dispute that this is the general configuration of the remoteterminal embodiments. Rather, United Access contends that a DSLAM sitting at the intersection
of public telephone lines and the lines that run separately to individual structures meets the signal
interface claim limitation. (See D.l. 190 at 11) United Access suggests that a DSLAM meets the
positional limitation even if it is on the public telephone network, so long as it is located at the ·
point at which the lines diverge to run into different buildings. (See id.) That argument,
however, is not consistent with the Court's claim construction, which requires the signal

6

interface to be located on the local side of the public telephone network. United Access presents
no evidence that the lines running to individual structures are part of the local network. None of
the evidence cited by United Access raises a genuine dispute regarding whether the lines running
to individual buildings are local. (See D.I. 190 at 11 n.3) (citing D.I. 190 Ex.Eat 90:7-25,
91:15-23; Ex.Hat 50:8-13; Ex. I at 6-8; Ex. J at 2; Ex.Mat 122:5-8, 124:23-125:6, 126:10-15;
D.I. 187 at ifif 5-13; D.I. 186 Ex. 1 at ifif 5-13; Ex. 2 at ifif 5-13) Most of this evidence is silent on
whether the lines are local, but the evidence that United Access directs the Court to that does
address this point supports Defendants' position that these lines are part of the public telephone
network, as they are upstream of the NIDs. (See D.I. 187 at ifif 9, 12-13; D.I. 186 Ex. 1 at ifif 9,
12-13; Ex. 2 at ifif 9, 12-13) Indeed, United Access admits that "[t]he telephone company owns
the ... local loops" (D.I. 196 at 1), which makes them part of the public telephone network.
Thus, there is no dispute that the DSLAMs are not located at the boundary of the local network
and public telephone network, as required by the Court's construction of the claims.
Accordingly, the Court will grant summary judgment that the remote-terminal
embodiments do not literally infringe the asserted patents.

B.

Doctrine of Equivalents

Defendants also move for summary judgment of no infringement under the doctrine of
equivalents. "To find infringement under the doctrine of equivalents, any differences between
the claimed invention and the accused product must be insubstantial." Brilliant Instruments, Inc.
v. GuideTech, LLC, 707 F.3d 1342, 1346 (Fed. Cir. 2013) (citing Graver Tank & Mfg. Co. v.
Linde Air Prods. Co., 339 U.S. 605, 608 (1950)). A determination of infringement under the
doctrine of equivalents is a question of fact. See Crown Packaging Tech., Inc. v. Rexam

7

Beverage Can Co., 559 F.3d 1308, 1312 (Fed. Cir. 2009). Therefore, summary judgment of no
infringement by equivalency is warranted when no reasonable jury could find equivalency
between the accused product and claimed invention. See Deere & Co. v. Bush Hog, LLC, 703
F.3d 1349, 1356 (Fed. Cir. 2012).
"[T]he 'all elements' rule informs a doctrine of equivalents analysis by requiring that
equivalence be assessed on a limitation-by-limitation basis, rather than from the perspective of
the invention as a whole, and that no limitation be read completely out of the claim." DePuy

Spine, Inc. v. Medtronic Sofamor Danek, Inc., 469,F.3d 1005, 1017 (Fed. Cir. 2006).
Accordingly, "the 'all elements' rule forecloses resort to the doctrine of equivalents because, on
the facts or theories presented in a case, a limitation would be read completely out of the claim i.e., the limitation would be effectively removed or 'vitiated."' Id. "'Vitiation' is ... a legal
conclusion of a lack of equivalence based on the evidence presented and the theory of
equivalence asserted." Cadence Pharm. Inc. v. Exela PharmSci Inc., 780 F.3d 1364, 1371 (Fed.
Cir. 2015) (collecting cases).· That is, "saying that a claim element would be vitiated is akin to
saying that there is no equivalent to the claim element in the accused device based on the
well-established 'function-way-result' or 'insubstantial differences' tests." Akzo Nobel Coatings,

Inc. v. Dow Chem. Co., 811F.3d1334, 1342 (Fed. Cir. 2016).
The parties agree that this motion concerns only the legal theory of equivalency that
United Access presents and no factual issues about the differences between the claimed invention
and accused products. For the purposes of the motion, the parties provisionally stipulated "that a
reasonable jury could determine as a factual matter that the locations of the DSLAM in
Defendants' accused instrumentalities are insubstantially different than that required by the

8

'signal interface' or 'telephone exchange' claim limitations." (D.I. 190 Ex. D at 2) 4
Defendants contend that any application of the doctrine of equivalents would vitiate the
Court's construction of "signal interface" by allowing that device to be located at a position that
is not at the opposite end of the public telephone network from the telephone exchange. (See D.I.
186 at 12) According to Defendants, the patents emphasize the importance of having the signal
interface in a position off the public network, a requirement captured by the Court's construction
of signal int~rface. (See id. at 13) Hence, in Defendants' view, a theory of infringement that
allows the signal interface to sit on the public telephone network must be barred because that
theory would vitiate the requirement that the signal interface be located off the public telephone
network. (See id. at 12-13)
United Access counters that the limited equivalency theory on which it relies does not
eliminate the positional requirement of the signal interface. (See D.I. 190 at 20) United Access
agrees that where the signal interface is located is an important aspect of the claims and suggests
that its theory respects th~ requirement that the signal interface be placed some distance from the
telephone exchange. (See id.) Under the theory United Access presents, the signal interface sits
on the opposite end of the telephone network from the telephone exchange, but rather than sitting
where the local network meets the public telephone network, it sits slightly upstream of that point
on the public telephone network. (See id. at 21)
The, Court agrees with Defendants that, regardless of the factual evidence that may be

4

The parties' stipulation is materially different from that in Ring & Pinion Service Inc. v.
ARB Corp., 743 F.3d 831 (Fed. Cir. 2014), a stipulation that fully and finally resolved the issue
of equivalence. Here, the stipulation is for a limited purpose, and expressly states that it "is not
relevant to th[ e] legal question" of claim vitiation. (D .I. 190 Ex. D at 2)
9

developed, no reasonable juror could find the differences between Defendants' products and the
claimed invention to be insubstantial under the doctrine of equivalents theory on which United
Access relies. This theory would eliminate the public/private distinction that the claimed
invention embraces. The patent is replete with references to the public telephone network and
makes clear that the claimed signal interface is not located on the public network. See, e.g., '596
patent col. 8 11. 9-13; col. 11. 62 - col. 21. 6; col. 411. 53-55. This position was intentionally
selected because, for instance, it prevents the signal interface "from creating violations of
governmental regulations by conducting [certain signals] onto the public telephone network."
Col. 48 11. 41-43. Thus, the patentee elected to require the signal interface device to be located
off the public telephone network, and United Access cannot, through the doctrine of equivalents,
undo that choice. See DeCisioning.com, Inc. v. Federated Dep 't Stores, Inc., 527 F.3d 1300,
1315 (Fed. Cir. 2008).
Accordingly, the Court will grant Defendant's motion for summary judgment ofnoninfringement under the doctrine of equivalents.

III.

CONCLUSION
The Court will grant Defendants' motion.for summary judgment of non-infringement.

An appropriate Order follows.

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