Applications in Internet Time, LLC v. Salesforce.com, Inc.

Filing 408

ORDER - The Court GRANTS Salesforce's Motion for Summary Judgment (ECF No. 278 ) and DENIES AIT's Motion for Summary Judgment of No Anticipation (ECF No. 270 ). See order for additional specifics. The Court further D ENIES as moot the parties' Joint Motion to Extend Time, (ECF No. 263 ), Joint Motion to Withdraw Motions to Strike and to Vacate the Court's Order Regarding Motions to Strike, (ECF No. 264 ), Joint Stipulation Regarding Case Narrowi ng, (ECF No. 265 ), Motion to Exclude Testimony, (ECF Nos. 268 , 272 , 275 ), Motion to Dismiss, (ECF No. 281 ), Motion for Hearing, (ECF No. 324 ), Objection/Appeal to Magistrate Judge Order, (ECF No. 338 ), Motion to Resolve Discovery Disp ute, (ECF No. 351 ), Motion for Leave to File Reply, (ECF No. 358 ), Unopposed Motion to Continue the Trial Date, (ECF No. 388 ). The Court further GRANTS nunc pro tunc, the parties' Motions to Seal pleadings, (ECF Nos. Nos. 269 , 271 , 273 , 276 , 279 , 282 , 293 , 295 , 297 , 301 , 306 , 314 , 316 , 319 , 322 , 333 , 339 , 346 , 352 , 359 , 370 , 377 , 389 , 403 , 406 ).The clerk of the Court shall close this case. Signed by Judge Robert C. Jones on 9/12/2023. (Copies have been distributed pursuant to the NEF - DLS)

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 1 of 48

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9

APPLICATIONS IN INTERNET TIME, LLC,

10

Case No. 3:13-CV-00628-RCJ-CLB

Plaintiff,

11

v.

12

SALLESFORCE.COM, INC.,

ORDER

13
14
15

Defendant.
In this patent infringement action, Defendant Salesforce, Inc. (“Salesforce”) moves for

16

summary judgment or partial summary judgment of: non-infringement of claims 1, 10, 20-21, 23-

17

26, 30, and 40 of U.S. Patent No. 7,356,482 (the “’482 patent”) and claims 13-17 of U.S. Patent

18

No. 8,484,111 (the “’111 patent”) (collectively, the “asserted claims”); non-infringement of the

19

asserted claims by Salesforce’s “Lightning” user interface and its mobile application; and

20

invalidity of the asserted claims in view of various prior art references (Dkt. 278). Plaintiff

21

Applications in Internet Time, LLC (“AIT”) opposes these motions, and affirmatively moves for

22
23
24
1 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 2 of 48

1

summary judgment of no anticipation (Dkt. 270), which Salesforce opposes. The parties also

2

request that the documents receive seal. 1

3

Salesforce also moves to exclude certain opinions of AIT’s technical and damages experts

4

(Dkt. 272, 275), and AIT moves to exclude certain opinions of Salesforce’s damages expert (Dkt.

5

268), each of which are opposed. Salesforce further moves to dismiss this action under Fed. R.

6

Civ. P. 12(b)(1) for lack of subject matter jurisdiction (Dkt. 283), and to resolve certain discovery

7

disputes regarding a corrected expert report (Dkt. 351), and AIT objects to the magistrate judge’s

8

order on a motion to compel (Dkt. 338).

9

The parties’ respective motions for summary judgment were heard by the Court on March

10

14, 2023. The Court did not take argument regarding the Daubert motions. Dkt. 392; Dkt. 393 at

11

4:6–5:3. Having considered the parties’ evidentiary submissions and arguments, and for the

12

reasons set forth below, the Court (i) grants Salesforce’s motions for summary judgement of non-

13

infringement and invalidity (Dkt. 278); and (ii) denies AIT’s motion for summary judgment of no

14

anticipation (Dkt. 270).

15

In view of the Court granting summary judgment of non-infringement and invalidity on all

16

asserted claims, Salesforce’s partial summary judgment motion of non-infringement by the

17

Lightning user interface and its mobile application, AIT’s objections to magistrate judge’s order,

18

and Salesforce’s motion regarding the supplemental expert report are rendered moot, and therefore

19

denied. The Court finds resolution of the parties’ respective motions to exclude the opinions of

20

their respective experts is not necessary to decide the present motions, and therefore the Court

21

denies these motions as moot as well. To the extent motions have been denied as moot, such denial

22
23
24

1

The parties ask the Court to seal pleadings. (Dkt Nos. 269, 271, 273, 276, 279, 282, 293, 295, 297, 301,
306, 314, 316, 319, 322, 333, 339, 346, 352, 359, 370, 377, 389, 403, 406). The Court recognizes that the
public has a great interest in the documents, but the Court grants the parties’ requests to seal the pleadings
due to the nature of the sealed material.

2 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 3 of 48

1

is without prejudice. As such, the parties may re-raise their respective positions on these issues in

2

the event of a remand.
FACTUAL BACKGROUND

3

A. The Patents and Claimed Invention

4
5

AIT asserts two patents in this litigation: the ’482 patent and the ’111 patent. Dkt. 1. Both

6

patents are entitled “Integrated Change Management Unit,” and they contain substantially identical

7

specifications. The application for the ’482 patent was filed on March 1, 2001, and issued on April

8

8, 2008. The application for the ’111 patent was filed on October 26, 2011, is a continuation of

9

U.S. Pat. Appl. No. 12/098,154, which is a continuation of the application for the ’482 patent, and

10

issued on July 9, 2013.

11

The asserted patents describe a “server computer” with four layers or portions of a server.

12

Dkt. 172 at 6. The first layer, called the “business content layer,” contains information about the

13

“specific business operations of concern to the end used.” ’482 patent at 9:56-591. 2 The second

14

layer, called the “metadata layer,” contains “information about the user interface and functions

15

common to a variety of applications,” including “tools, worklists, data entry forms, reports,

16

documents, processes, formulas, images, tables, views, columns, and other structures and

17

functions.” Id. at 9:41-46. The third layer, called the “Java data management layer,” “retrieves the

18

data in the first and second layers in order to generate the functionality and user interface elements

19

of the application.” Id. at 15:5-9. The fourth layer, called the “change management layer,”

20

“automatically detect[s] changes that affect an application.” Id. at 16:18-21. As reflected in the

21

claims, the change management layer is comprised of “one or more” intelligent agents. ’482 patent,

22
23
24

2

For simplicity, citations are made to the specification of the ’482 patent.

3 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 4 of 48

1

claims 8, 28. The specification teaches the server may “automatically mak[e] application and

2

database changes using intelligent agent routines...” Id. at 7:47-53.
B. The Asserted Claims, the Court’s Claim Construction, and Evidence of the
Ordinary Meaning of Certain Claim Terms

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

AIT is asserting infringement of claims 1, 10, 20, 21, 23, 24, 25, 26, 30, and 40 of the ’482
patent and claims 13-17 of the ’111 patent. Of those, claims 1 and 21 of the ’482 patent and claim
13 of the ’111 patent are independent claims. All other claims depend, directly or indirectly, from
one of those three claims.
With respect to the claim term automatically detecting, claim 21 of the ’482 Patent requires
“automatically detecting changes that affect a particular application.” ’482 Patent at 33:52–53.
Claim 1 of the ’482 patent adds an additional requirement that such “automatic” detection occur
as part of the “change management layer.” 482 Patent at 32:27–28 (“a change management layer
for automatically detecting changes that affect an application”). Claim 13 of the ’111 Patent adds
an additional requirement to claim 21 of the ’482 Patent requiring the software for automatic
detection to be contained on a “portion” of a server. ’111 Patent at 34:5–8.
I addressed the parties’ disputes regarding claim construction in my claim construction
opinion. Dkt. 172. The parties also agreed on the construction of a number of claim terms. Dkt.
153-4; Dkt. No. 277 at 7.
During claim construction, I found the phrase “automatically detecting changes ...” to
require an “intelligent agent.” As I explained in my opinion, the “patents repeatedly discuss
intelligent agents as an integral component of the claimed invention.” Dkt. 172 at 13. 3 I further

22
23
24

3

In its briefing, Salesforce relies on Mr. Zatkovich’s testimony from deposition instead of my claim construction
order for this proposition. Dkt. 280 at 2. However, at the time Mr. Zatkovich testified, my claim construction order,
including my finding that the specification taught “intelligent agents” were “integral components” of the claimed
invention, was the law of the case.

4 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 5 of 48

1

found the specification distinguished the prior art based on the prior art’s failure to contain

2

intelligent agents. Id. at 13–14. As such, for the reasons previously explained, I construed

3

“automatic detect[ing],” as it appears in all the claims, to require “detecting without human

4

intervention through the use of one or more intelligent agents.” Id. at 12, 24.

5

The shared patent specification provides various descriptions of intelligent agents. As an

6

example, the specification states that “[a]n ‘intelligent agent’ is a specialized program that makes

7

decisions and performs tasks based on predefined rules and objectives.” ’482 patent at 20:1-3; See

8

also Id. at 10:42–45 (“An ‘intelligent agent’ is a specialized program that resides on a network, or

9

at a server as an applet, and can make decisions and perform tasks based on pre-defined rules.”);

10

Id. at 16:22–23 (“[E]ach IA is defined by rules and constraints that focus on the selected business

11

area.”). In addition, the parties’ respective experts have offered various opinions regarding the

12

understanding of this term to a skilled artisan. See, e.g., Dkt. 280-6 (Zatkovich Reb. Rpt.) at ¶¶ 52,

13

60, 79–85, 1104–1116; Dkt. 280-8 (Zatkovich Op. Rpt.) at ¶¶ 1208–1214; Dkt. 280-1, Schmidt

14

Reb. at ¶¶ 39–51; Dkt. 280-2 Bederson Rpt. at ¶¶ 112–121. Ultimately, I did not construe the term

15

“intelligent agent” and the ordinary meaning of this term to a skilled artisan is therefore applicable.

16

Mr. Zatkovich opined the various descriptions of “intelligent agent” in the specification are

17

consistent with the term’s plain meaning as he understood it and with his opinions regarding the

18

“deploy” function of the accused product. Dkt. 280-6 (Zatkovich Reb. Rpt.) at ¶¶ 52, 60, 80, 1110,

19

1570, 1574; Dkt. 280-8 (Zatkovich Op. Rpt.) at ¶¶ 818, 1209, 1212; Dkt. 297-2 (Zatkovich

20

8/21/2022 Tr.) at 261:16–25, 270:7-10; Dkt. 297-3 (Zatkovich 8/24/2022 Tr.) at 426:8–25,

21

431:18–432:3, 434:16–435:3, 437:4–13. In particular, he explained that infringement would not

22

be avoided under the narrowest interpretation in the specification. Dkt. 297-2 (Zatkovich

23

8/21/2022 Tr.) at 261:16–25.

24
5 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 6 of 48

1

During claim construction, I further resolved the parties’ dispute regarding the terms

2

“layer” and “portion of the server.” In particular, I found that the term “layer” shall be construed

3

as “a set of functionally or logically separated software components” and that the term “portion of

4

the server” shall be constructed as “a functionally or logically separately subset of one or more

5

server computers.” Dkt. 172 at 24.

6

As recognized by Salesforce, “the parties [] agreed on constructions for ‘application’ and

7

‘predetermined business application.’” Dkt. No. 277 at 7 citing 277-2 (Zatkovich Op. Rpt.) ¶ 28;

8

See Dkt. 153-4. The agreed construction for “application” is “a software program providing a set

9

of end user functions for performing tasks. Dkt. 153-4. The agreed construction for “predetermined

10

business application is “a software program that provides a predefined set of end user functions

11

for performing tasks relating to the requirements or operations of a business.” Id.

12

C. Post-Grant Challenges to the ‘482 and ‘111 Patents in Light of Popp

13

On August 17, 2015, RPX Corporation filed petitions for inter partes review (“IPR”)

14

against the asserted claims of the ’482 and ’111 patents arguing, among other grounds, that the

15

claims were anticipated by U.S. Patent No. 6,249,291 (“Popp”). IPR2015-01750, Paper 1 (Petition)

16

at 13-23 (PTAB August 17, 2015); IPR2015-01751, Paper 1 (Petition) at 16-13 (PTAB August 17,

17

2015). During the IPR proceedings, AIT disputed whether Popp disclosed “automatically

18

detecting” changes—not any other element. E.g., IPR2015-01750, Paper 63 (Patent Owner

19

Response) at 23-24 (PTAB May 20, 2016). After trial was instituted, the PTAB issued Final

20

Written Decisions rejecting AIT’s argument and finding that claims 1, 10, 20-21, 30, and 40 of the

21

’482 patent and claims 13-17 of the ’111 patent were anticipated by Popp. Dkt. 280-14 (IPR2015-

22

01751, Paper 82 (Final Written Decision)) at 25-26 (PTAB Dec. 28, 2016); (IPR2015-01750,

23

Paper 80 (Final Written Decision)) at 35 (PTAB Dec. 28, 2016). The PTAB further found that

24

claims 23–26 of the ’482 Patent were invalid as obvious over Popp in combination with another
6 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 7 of 48

1

publication (“Codd”). Dkt. 280-14 (IPR2015-01751, Paper 82 (Final Written Decision)) at 27–29

2

(PTAB Dec. 28, 2016).

3

On appeal before the Federal Circuit, the Court vacated and remanded the PTAB’s decision

4

because the PTAB did not apply the proper standard for determining whether Salesforce was a real

5

party in interest. Applications in Internet Time, LLC v. RPX Corp., 897 F.3d 1336 (Fed. Cir. 2018).

6

The PTAB’s Final Written Decisions were vacated based on the procedural question regarding the

7

identity of the real party in interest and despite having found, on the merits, that all of the asserted

8

claims of the ’482 and ’111 patents were invalidated by Popp in combination with various

9

references. IPR2015-01750, Paper 128 (Final Decision on Remand Terminating Institution) at 13-

10

23 (PTAB October 2, 2020).

11

The Court has reviewed the PTAB’s findings regarding the prior art and its conclusions.

12

The Court recognizes the PTAB’s decision was vacated and does not rely on the decision itself.

13

However, the Court has independently considered the evidence and arguments of the parties and

14

ultimately, as indicated at the hearing, the Court concludes the PTAB reached the proper result.

15

Dkt. 393 at 157:12–15.

16

D. Description of the Accused Products

17

The accused products in this case are certain functionalities of Salesforce’s Salesforce1 and

18

Force.com platforms. Dkt 280-8 (Zatkovich Op. Rpt.) ¶ 1198.

19

The accused products use a metadata-driven architecture in which an application is defined

20

by metadata rather than embodied in program code, so that changing an application can be

21

achieved by changing the metadata rather than code. Id. at ¶¶ 119–120. Designers and developers,

22

however, do not enter metadata changes directly into the application that is deployed to customers,

23

i.e., the “production” version of the application. Id. at ¶¶ 241–261, 305–309, 814–815. Rather,

24

they work on a development copy of the application metadata stored in a “sandbox” or “scratch
7 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 8 of 48

1

organization.” Id. at ¶ 266; See also Id. at ¶¶ 273–309, 814–815. This development version of the

2

metadata is modified through a graphical user interface, an Integrated Development Environment

3

(IDE), or a command line interface (CLI) tool. Id. at ¶¶ 242, 248, 309; See also Id. at ¶¶ 241–261.

4

Rather than modify metadata associated with a production application directly, potential changes

5

to application metadata are detected and deployed to the production application based on a

6

comparison of the metadata in the production application with a development copy of the code. Id.

7

at ¶ 263–264; See also Id. at ¶¶ 262–304, 541. All automated change management features in the

8

accused products are governed by and utilize the same software functionalities, including a

9

Universal Data Dictionary (UDD) and the Metadata API. Id. at ¶¶ 263–265, 315.

10

With respect to automated change management, the Metadata API includes a “deploy”

11

function that detects changes to the metadata that defines an application. Id. at ¶¶ 812–813. Mr.

12

Zatkovich provided a “source code analysis for the claimed layer four includ[ing] a code

13

description and code flow chart for source code reflecting fourth-layer functionality for detecting

14

changes to metadata.” Dkt. 280-8, Zatkovich Op. at ¶ 834 (referencing “Flow D” portion of source

15

code analysis, (Dkt 280-15, Appendix C to Zatkovich’s Op. Rpt. at 20-24)). Mr. Zatkovich further

16

explained that one step in the “deploy” function includes a “filterOutUnchangedFiles” routine

17

where the changes are identified within the deploy function. Dkt 280-15, Appendix C to

18

Zatkovich’s Op. Rpt. at 24 (“Step 3”); Dkt. 297-2 Zatkovich 8/21/2022 Tr. at 257:3-6. With

19

reference to his analysis of the source code of the accused products, Mr. Zatkovich further testified

20

that this one step of the “deploy function” alone would not be considered an intelligent agent. Dkt.

21

297-2 (Zatkovich 8/21/2022 Tr.) at 256:21–257:2, 272:13–16.

22

E. Appropriate Level of Ordinary Skill in the Art

23

Salesforce’s expert Dr. Benjamin Bederson opined that “a person of ordinary skill in the

24

art as of the claimed priority date of each of the asserted patents (‘POSITA’) would have had at
8 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 9 of 48

1

least an undergraduate degree in electrical engineering or computer science (or equivalent field)

2

and at least two years of computer programming experience in developing client-server systems.”

3

Dkt. 280-6 (Bederson Rpt.) ¶ 19. AIT’s expert, Mr. Zatkovich, opined that “a person of ordinary

4

skill in the art, at the time of the invention of the Asserted Patents, would be someone with a

5

bachelor’s degree in computer science or a related field (such as electrical engineering), and either

6

(1) two or more years of industry experience and/or (2) an advanced degree in computer science

7

or a related field.” Dkt 280-8, Zatkovich Op. at ¶¶ 23-24. These two standards are generally

8

consistent with each other, and neither party in their motion papers asserted that there was any

9

material difference between the two standards. As such, resolution of the experts’ dispute is not

10

necessary for my opinion.
LEGAL STANDARD

11
12

A. Summary Judgment

13

Summary judgment is appropriate only where the moving party demonstrates there is no

14

genuine dispute as to any material fact such that judgment as a matter of law is warranted. Fed.

15

R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that

16

might affect the outcome of the case, as defined by the framework of the underlying substantive

17

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the

18

evidence is such that a reasonable jury could return a verdict for either party. Id. The moving

19

party bears the initial burden of informing the district court of the basis for its motion and

20

identifying those portions of the pleadings, discovery, and affidavits that demonstrate the

21

absence of a disputed issue of material fact. Celotex, 477 U.S. at 323.

22

In opposing the motion, the non-moving party may not rely merely on the allegations or

23

denials in its pleadings, but must set forth “specific facts showing that there is a genuine issue for

24

trial.” Anderson, 477 U.S. at 248 (citing Fed. R. Civ. P. 56(e)). The court must construe the
9 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 10 of 48

1

evidence in the light most favorable to the non-moving party, making all reasonable inferences

2

that can be drawn. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587

3

(1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991);

4

Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1289 (9th Cir. 1987). “If the [non-movant’s]

5

evidence is merely colorable, or is not significantly probative, summary judgment may be

6

granted.” Anderson, 477 U.S. at 249-50 (internal citations omitted). “Summary judgment is as

7

appropriate in a patent case as it is in any other case.” C.R. Bard, Inc. v. Advanced

8

Cardiovascular Sys., Inc., 911 F.2d 670, 672 (Fed. Cir. 1990).

9

B. Legal Standards Relevant to Infringement

10

The party asserting patent infringement has the burden of proving infringement, and thus

11

the burden of establishing that each and every limitation in the asserted claim is met. Jazz Photo

12

Corp. v. Int’l Trade Comm’n, 264 F.3d 1094, 1102 (Fed. Cir. 2001). It is axiomatic that if the

13

accused products fail to satisfy even a single limitation of the claims, they do not infringe. Hutchins

14

v. Zoll Med. Corp., 492 F.3d 1377, 1380 (Fed. Cir. 2007); Biagro W. Sales, Inc. v. Grow More,

15

Inc., 423 F.3d 1296, 1301 (Fed. Cir. 2005). While limitations can be met literally or under the

16

doctrine of equivalents, “[t]he doctrine of equivalents applies only in exceptional cases and is not

17

‘simply the second prong of every infringement charge, regularly available to extend protection

18

beyond the scope of the claims.” Amgen Inc. v. Sandoz Inc., 923 F.3d 1023, 1029 (Fed. Cir. 2019).

19

C. Legal Standards Relevant to Invalidity

20

Patents are presumed valid, and the presumption may only be overcome by clear and

21

convincing evidence. Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91, 95 (2011). “The burden of

22

establishing invalidity of a patent . . . shall rest on the party asserting such invalidity.” 35 U.S.C.

23

§ 282(a).

24
10 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 11 of 48

1

Title 35 U.S.C. § 102 establishes the various grounds for invalidation of patents based on

2

anticipation by prior art. “[A] claim is anticipated if each and every limitation is found either

3

expressly or inherently in a single prior art reference.” Bristol-Myers Squibb Co. v. Ben Venue

4

Labs., Inc., 246 F.3d 1368, 1378 (Fed. Cir. 2001) (alteration in original). “While anticipation is a

5

question of fact, it may be decided on summary judgment if the record reveals no genuine dispute

6

of material fact.” Encyclopaedia Britannica, Inc. v. Alpine Elecs. of Am., Inc., 609 F.3d 1345, 1349

7

(Fed. Cir. 2010) (internal citation omitted). Additionally, “[a] patent may not be obtained though

8

the invention is not identically disclosed or described as set forth in section 102, if the differences

9

between the subject matter sought to be patented and the prior art are such that the subject matter

10

as a whole would have been obvious at the time the invention was made to a person having ordinary

11

skill in the art to which said subject matter pertains.” Pre-AIA 35 U.S.C. § 103(a). Obviousness is

12

a question of law with “underlying factual considerations.” Id. (citing Graham v. John Deere Co.

13

of Kansas City, 383 U.S. 1, 17 (1966)). An obviousness analysis requires consideration of any

14

evidence tending to objectively show non-obviousness. Transocean Offshore Deepwater Drilling,

15

Inc. v. Maersk Contractors USA, Inc., 617 F.3d 1296, 1305 (Fed. Cir. 2010).

16
17
18
19

ANALYSIS
A. SalesForce Did Not Infringe the ‘482 and ‘111 patents
During claim construction, the Court construed all asserted claims to require automatically
detecting changes “through the use of one or more intelligent agents.” Dkt. 172 at 24.

20

Specifically, during prosecution, the asserted claims were ultimately allowed over the

21

“Eager” prior art reference (U.S. Patent No. 5,960,200; Dkt. 68-9), on which the claims stood

22

rejected, after AIT added to the claims the language requiring “automatically detecting changes.”

23

As I explained above, during claim construction I found the patents themselves discuss intelligent

24

agents as an integral component of the claimed invention—and the process for detecting changes—
11 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 12 of 48

1

and distinguished the claimed inventions on that basis from the prior art. Dkt. 172 at 13-14. Thus,

2

for purposes of obtaining its patents, AIT placed heavy emphasis on “automatically detecting”

3

changes, and in particular doing so using “one or more intelligent agents.” However, AIT failed to

4

put forth evidence sufficient to raise a genuine dispute of material fact that the accused products

5

use any such “intelligent agent” to detect changes.

6

I.

7

AIT Failed to Raise a Genuine Dispute of Material Fact that
Accused Products Detect Changes “Through One or More
Intelligent Agents”

8

Based on the Court’s claim construction, the asserted claims all require detecting changes

9

“through the use of one or more intelligent agents.” Dkt. 172 at 24. There is no dispute that not

10

every software program qualifies as an “intelligent agent.”

11

As detailed above, the specification (on which both parties rely) states “[a]n ‘intelligent

12

agent’ is a specialized program that makes decisions and performs tasks based on predefined rules

13

and objectives.” ’482 patent at 20:1-3; See Id. at 10:41-48. The parties’ experts acknowledged that

14

this description was consistent with their understanding of the term “intelligent agent.” Dkt 323-2

15

Zatkovich 8/21/2022 Tr. at 261:16-25; Dkt. 280-05, Schmidt Rebuttal Report) ¶ 338.

16

Turning to the operation of the accused products, as detailed above, the products include a

17

deploy function for detecting changes made to metadata defining the user interface and

18

functionality of an application associated with the accused products. Dkt 280-8, Zatkovich Op. at

19

¶¶ 121, 309; Dkt. 280-1, Schmidt Rpt. at ¶¶ 341-43.

20

Mr. Zatkovich, AIT’s expert, analyzed the source code for the deploy function (including

21

its various sub-routines, such as the filterOutUnchangedFiles function). Mr. Zatkovich concluded

22

based on his analysis that the deploy function as a whole is an intelligent agent. Dkt. 297-2

23

(Zatkovich 8/21/2022 Tr.) at 256:21–257:2, 272:8–16; Dkt. 297-3 (Zatkovich 8/24/2022 Tr.) at

24

431:18–432:3; Dkt. 280-8 (Zatkovich Op. Rpt.) at ¶¶ 811–815, 818, 822–834. With respect to the
12 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 13 of 48

1

support for Mr. Zatkovich’s application of the ordinary meaning of “intelligent agent,” AIT relies

2

primarily on Mr. Zatkovich’s report including various paragraphs in the body of the report (Dkt.

3

280-8 (Zatkovich Op. Rpt.) at ¶¶ 811–815, 818, 822–834), Mr. Zatkovich’s source code analysis

4

with respect to the “deploy” function, (Dkt. 280-11 (Zatkovich Appx. C) at 20-24), his deposition

5

testimony, as well as opinions directed to the meaning of “intelligent agent” to a skilled artisan,

6

(Dkt. 280-8 (Zatkovich Op. Rpt.) at ¶¶ 1209, 1212).

7

Salesforce’s expert, Dr. Schmidt, opined that the “deploy” function is not an “intelligent

8

agent.” Dkt. 280-05 (Schmidt Rpt.) ¶¶ 338-54. I have reviewed and considered the evidence and I

9

find it insufficient to raise a question of fact. In particular, Mr. Zatkovich’s analysis of the “deploy”

10

function is insufficient to support his conclusion that the “deploy” function is an intelligent agent.

11

As such, Mr. Zatkovich’s opinions are insufficient to raise a question of fact. Mr. Zatkovich opined

12

the “deploy” function is an “intelligent agent.” Dkt. 296 at 9–10. However, as urged by Salesforce,

13

Mr. Zatkovich did not compare the deploy function to the Asserted Patents’ description of an

14

“intelligent agent.” See, e.g., ’482 patent at 20:1-3 (“An ‘intelligent agent’ is a specialized program

15

that makes decisions and performs tasks based on predefined rules and objectives.”); See also id.

16

at 10:42–45, 16:22–23.

17

In these circumstances, the assertion of AIT’s expert, Mr. Zatkovich, that the

18

“automatically detecting...” limitation as construed by this Court is met by the deploy function is

19

insufficient to defeat summary judgment. See Arthur A. Collins, Inc. v. Northern Telecom Ltd.,

20

216 F.3d 1042, 1046 (Fed. Cir. 2000) (“[I]t is well settled that an expert’s unsupported conclusion

21

on the ultimate issue of infringement is insufficient to raise a genuine issue of material fact. ... A

22

party may not avoid that rule by simply framing the expert’s conclusion as an assertion that a

23

particular critical claim limitation is found in the accused device.”). The Court has considered the

24

portions of Mr. Zatkovich’s report identified by AIT, but those passages merely describe the
13 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 14 of 48

1

deploy function’s operation without specifically comparing the “deploy” function to any definition

2

in the specification. See, e.g., Dkt. 280-8 (Zatkovich Op. Rpt.) at ¶¶ 811–835; Dkt. 280-11

3

(Zatkovich Appx. C) at 20-24.

4

AIT further argues that Mr. Zatkovich’s opinions are supported based on Mr. Zatkovich’s

5

source code analysis. In particular, AIT argues that the fact that the “deploy” function contains

6

rules, constraints and objectives should not be disputed in light of Mr. Zatkovich’s opinions. See

7

Dkt. 296 at 9–10.) Specifically, AIT’s opposition asserts that Mr. Zatkovich “will be able to

8

explain what [the ‘deploy function’] is, the special functions it performs, the rules and objectives

9

that govern its operation, [and] the fact that it is an agent that automatically detects changes.” Dkt.

10

296 at 5 (relying on Dkt. 280-8 (Zatkovich Op.) at ¶¶ 811–834, 1208–1214). However, Mr.

11

Zatkovich conceded at deposition that his report lacks “an explanation of how the deploy function

12

compares” with the description of “intelligent agent” in the specification. Dkt. 297-3 (Zatkovich

13

8/24/2022 Tr.) at 427:15-428:7. As such, a reasonable juror could not find the source code analysis

14

contained in Mr. Zatkovich report, See Dkt. 280-11 (Zatkovich Appx. C) at 20-24, to be a sufficient

15

analysis to support Mr. Zatkovich’s conclusion that the “deploy” function is an intelligent agent. I

16

do not find AIT’s arguments to the contrary persuasive.

17

II.

SalesForce’s Other Arguments with Respect to Intelligent Agents

18

With respect to claims 1, 10, and 20 of the ’482 Patent, Salesforce presents a separate

19

argument for non-infringement. In particular, Salesforce asserts summary judgment of non-

20

infringement is appropriate because, under the Court’s construction, the “deploy” function cannot

21

be both the “change management layer” and an “intelligent agent.”

22

Salesforce argues that the “change management layer” is required to “use” the intelligent

23

agent and therefore the layer itself cannot be an “intelligent agent.” Salesforce’s argument with

24

respect to “change management layer” is unpersuasive. During claim construction neither party
14 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 15 of 48

1

requested a construction that required the “change management layer” to be distinct from the

2

“intelligent agent” or to use a separate program to automatically detect changes. See Dkt. 153 at

3

7–16; Dkt. 154 at 3–12. Any such construction would be inconsistent with the claim language

4

which recognizes that the “change management layer” may “comprise[]” one or more intelligent

5

agents. ’482 Patent at 32:59–61 (claim 8). As such, the parties’ respective experts were free to

6

apply the Court’s construction and the ordinary meaning of these phrases. As detailed below, both

7

parties’ experts have applied the Court’s construction of “change management layer” and the

8

ordinary meaning of “intelligent agent” such that these terms can be, but are not required to be,

9

co-extensive. As explained by AIT, and found by me below,

10

Salesforce’s argument with respect to “change management layer” and “intelligent agent”

11

is inconsistent with Salesforce’s own expert testimony. Dkt. 295 at 7. As detailed below, I have

12

found the prior art both anticipates and renders the asserted claims obviousness as a matter of law.

13

At Salesforce’s request, my findings of anticipation and obviousness rely on the same structure in

14

the prior art for both the “change management layer” and the “intelligent agent.” See infra, Section

15

III.C.3.a.(vii.). Ultimately, there is nothing in the claim language or the Court’s construction

16

precluding “change management layer” and the “intelligent agent” from being co-extensive.

17
18
19
20
21
22
23
24

B. SalesForce’s Arguments with Respect to FilerOutUnchagedFiles, a Portion of the
Deploy Function
Salesforce

further

argues

that

Mr.

Zatkovich’s

admissions

regarding

the

filterOutUnchangedFiles function, a part of the deploy function, require judgment in its favor. Dkt.
280 at 13–14 (relying on Dkt 297-2 (Zatkovich 8/21/2022 Tr.) at 257:3-6 and 272:13-16). As I
explained at the hearing, my opinion is based on the lack of evidence supporting AIT’s position
and I decline to adopt Salesforce’s characterization of the evidence and the arguments from
Salesforce’s Daubert motion. Dkt. 393 at 153:23–154:18. In particular, Mr. Zatkovich’s deposition

15 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 16 of 48

1

testimony relied on by Salesforce concerning the filterOutUnchangedFiles routine (which is part

2

of the “deploy” function) supports the conclusion that the deploy function is “used” to

3

automatically detect changes, even though Mr. Zatkovich has not provided sufficient support for

4

his opinion that the “deploy” function is an “intelligent agent.”

5

For example, Mr. Zatkovich’s opinion that “Step 3” (the “filterOutUnchangedFiles”

6

function) is where “change detecting actually happens” is not germane to my analysis. See Dkt.

7

297-2 (Zatkovich 8/21/2022 Tr.) at 257:3-6 (referencing Dkt. 280-11 (Zatkovich Appx. C) at 24).

8

I reach that conclusion for two reasons.

9

First, the claimed intelligent agents are not required to only automatically detect changes.

10

With respect to whether an “intelligent agent” or the “deploy” function must only be used to

11

automatically detect changes (such that the “deploy” function would not be considered a

12

“specialized” program) there is no dispute with respect to this issue. In particular, in response to

13

Salesforce’s moving papers, AIT explained that an “intelligent” agent is not required to only detect

14

changes and the particular lines of code for detecting changes may be part of a larger program that

15

performs multiple functions. Dkt. 296 at 8–9. AIT urged that Salesforce’s arguments to the

16

contrary were based on a dispute of fact between the parties’ respective experts and inconsistent

17

with the specification which identifies various functions performed by each intelligent agent, i.e.,

18

only a portion of the “intelligent agents” taught in the specification are for detecting changes. Id.

19

In its reply brief, Salesforce represented that “whether the ‘deploy’ function is sufficiently

20

‘specialized’ to qualify as an ‘intelligent agent’ is irrelevant to Salesforce’s motion for summary

21

judgment.” Dkt. 321 at 4. Salesforce further recognized in reply that summary judgment of non-

22

infringement does not rest on any requirement that the “intelligent agent” must be “an autonomous,

23

stand-alone, or background program.” Dkt. 321 at 10 (“Salesforce’s motion for summary judgment

24

is not premised on any requirement that the ‘intelligent agent’ must be ‘an autonomous, stand16 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 17 of 48

1

alone, or background program’ and does not dispute that the ‘intelligent agent’ can be a software

2

component within the ‘change management layer.’”). As such, I cannot grant summary judgment

3

directed to Salesforce’s arguments directed to whether only a portion of the “deploy” function is

4

used to automatically detect changes.

5

Second, a reasonable juror would not be required to find that “filterOutUnchangeFiles”

6

(step 3 alone) is the only functionality used by the accused products to detect changes. Mr.

7

Zatkovich’s testimony that “filterOutUnchangedFiles” is where change detection “actually

8

happens” and that Step 3 “alone” is not an “intelligent agent” does not lead to the conclusion that

9

“filterOutUnchangedFiles,” i.e., Step 3 is the only step used to automatically detect changes. See

10

Dkt. 280-11 (Zatkovich Appx. C) at 20-24. Indeed, Mr. Zatkovich did not testify that

11

“filterOutUnchangeFiles,” Step 3, in his source code analysis, is the only code used to

12

automatically detect changes. See Dkt. 297-2 (Zatkovich 8/21/2022 Tr.) at 256:16-20 (in reference

13

to Dkt. 280- 11 (Zatkovich Appx. C) at 20-24). Instead, the parties appear to agree that various

14

other portions of the “deploy” function, including ““compareVersions” which “[d]etermines what

15

information / metadata (blobs) from current version was in previous version (i.e., what has not

16

changed)” which are plainly not part of Step 3 “alone,” are also used in the automatic detections

17

of changes. Dkt.297 at 9; Dkt. 323 at 6. When Mr. Zatkovich’s deposition testimony is considered

18

in light of his description of the deploy function I cannot conclude that Step 3,

19

“filterOutUnchangedFiles,” is the only portion of the “deploy” function used to automatically

20

detect changes.

21
22
23
24

I.

AIT Cannot Rely on Doctrine of Equivalents to Meet the
“Intelligent Agent” Requirement

AIT’s doctrine of equivalents argument does not defeat summary judgment. In its
opposition brief, AIT contends that “Mr. Zatkovich’s [doctrine of equivalents] opinions are merely

17 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 18 of 48

1

addressed to Salesforce’s argument that an ‘intelligent agent’ must be implemented as ‘an

2

autonomous, stand- alone, or background program’ as Salesforce’s experts opined following claim

3

construction.” Dkt. 296 at 10; See also Id. at 12. In reply, Salesforce explained its argument does

4

not rest on any requirement that the “intelligent agent” must be “an autonomous, stand-alone, or

5

background program.” Dkt. 321 at 10 (“Salesforce’s motion for summary judgment is not premised

6

on any requirement that the ‘intelligent agent’ must be ‘an autonomous, stand-alone, or

7

background program’ and does not dispute that the ‘intelligent agent’ can be a software component

8

within the ‘change management layer.’”). As such, AIT’s arguments regarding the doctrine of

9

equivalents are irrelevant to the present motion.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

Accordingly, AIT’s doctrine of equivalents theory does not raise a disputed issue of
material fact sufficient to withstand summary judgment of non-infringement.
C. The ‘482 and ‘111 Patents are Anticipated by Popp and also Rendered Obvious by
the Combination of Popp and Amati
Salesforce moves for summary judgment that the asserted claims of the ’482 and ’111
patents are invalid as anticipated or rendered obvious by Popp, alone or in combination with Amati.
I.

Summary of Popp

U.S. Patent No. 6,249,291 (“Popp”) is entitled “Method and Apparatus for Managing
Internet Transactions.” Dkt. 280-17 (Popp). The named inventors are Nicolas Popp, Bruce Ong,
and Charles D’Harcourt. Popp was filed on September 23, 1995, and issued on June 19, 2001.
Therefore, Popp is prior art to the ’482 and ’111 patents under pre-AIA 35 U.S.C. § 102(e). AIT
does not dispute that Popp is prior art to both asserted patents.
The parties dispute the teachings of Popp and whether they meet the limitations of the
claims. First, Mr. Zatkovich opined Popp does not relate to dynamically generating applications.
Dkt. 280-6, Zatkovich Reb. at ¶ 224. His explanation of Popp is as follows. “Popp relates to a

18 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 19 of 48

1

technique for providing Web-based, remote access to an existing, conventional corporate

2

application such as an ‘Automobile Shopper’ application.” Id. Otherwise put, Popp “uses a Web-

3

based front-end as a replacement for a conventional local user interface.” Id. For the same reason,

4

“Popp’s application 214 is a static computer program written in a conventional programming

5

language, rather than a dynamically generated application.” Id. at ¶ 228. As such, “Popp purports

6

to provide a limited improvement over existing Web-based applications from the early 1990’s.”

7

Id. at ¶ 225. Second, Popp’s application does not change. Id. at ¶ 229. Instead, “the only aspect of

8

these Web pages that can change over time is the data that is displayed ... the user interface and

9

functionality of the underlying application remain the same.” Id. at ¶ 231.

10

II.

Summary of Amati

11

“A Framework for Filtering News and Managing Distributed Data” (“Amati”) is an

12

academic paper authored by Gianni Amati, Daniela D’Aloisi, Vittorio Giannini, and Flavio

13

Ubaldini. Dkt. 280-18 (Amati). Amati was published in the Journal of Universal Computer Science

14

on August 28, 1997, and thus is prior art to the ’482 and ’111 patents under pre-AIA 35 U.S.C. §

15

102(b). AIT does not dispute that Amati is prior art to both patents.

16

Amati discloses an “ABIS (Agent Based Information System)” that “has been designed to

17

assist users in retrieving information in repositories, archives and databases accessible through the

18

network.” Id. at 1015. Amati states the ABIS system “follows the software agent metaphor,”

19

wherein an “agent is an intelligent entity designed to act on behalf of a user.” Id. The reference

20

further explains the ABIS agent is “not only an intelligent support program, but an entity capable

21

of acting autonomously, facing unexpected events and cultivating a trustful relationship with the

22

user.” Id. Amati teaches when the ABIS “agent autonomously navigates the network looking for

23

relevant documents,” the agent “is driven by a Preference Profile that describes the current user

24
19 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 20 of 48

1

interest” and “takes into account the Situation Set, where the whole interaction history is

2

memorized and further used for predicting the user’s choices.” Id.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

III.

Popp Anticipates Claims 1, 10, 20-21, 23-26, 30, and 40 of the ‘482
Patent and also Renders them Obvious in Combination with Amati

The Court finds that Popp both anticipates claims 1, 10, 20-21, 23-26, 30, and 40 of the
’482 patent, and renders them obvious in combination with Amati, as a matter of law. Dr.
Bederson, Salesforce’s expert, opined that each limitation of the asserted ’482 patent claims is
disclosed by Popp, and in some instances was also rendered obvious by Popp in view of Amati.
Dkt. 280-6 (Bederson Rpt.) ¶¶ 398-428. Mr. Zatkovich, AIT’s expert, opined that Popp does not
disclose various limitations of the asserted claims. Dkt. 280-6, Zatkovich Reb. ¶¶ 239-294
(addressing anticipation), ¶¶ 1151-1158, 1184. Having considered the evidence submitted by the
parties, I conclude AIT has failed to raise a dispute of material fact that would preclude granting
of summary judgment.
a. Claim 1
1. Popp discloses “A system for providing a
dynamically generated application having one or
more functions and one or more user interface
elements; comprising:”
Salesforce relies on Dr. Bederson’s opinion in support of its motion for this limitation. Dkt.
280 at 22. Dr. Bederson opined that Popp discloses that “the present invention is used with an
application on the server side of the connection to dynamically generate Web pages” which
“contain application information and provide the ability for the user to specify input.” Dkt. 280-2,
Bederson Rpt. 399. Salesforce further relies on Mr. Zatkovich’s deposition testimony where he

24
20 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 21 of 48

1

stated that Popp “dynamically generate[s] a Web page” and that Popp’s Web page is an

2

“application.” Dkt. 280 at 22 (relying on Dkt. 280-5, Zatkovich 8/24/2022 Tr. at 583:10-584:22).

3

AIT relies on Mr. Zatkovich’s testimony in opposition to Salesforce’s motion for this

4

limitation. Dkt. 297 at 24 (relying on Dkt. 280-6, Zatkovich Reb. ¶ 240). Mr. Zatkovich opined

5

“Popp’s web pages ... are not ‘dynamically generated’ as the claims recites.” Dkt. 280-6, Zatkovich

6

Reb. ¶ 240. He further opined that “Popp’s web pages provide access to a static application

7

(application 214) with a fixed function and a fixed user interface.” Id.

8

Based on Mr. Zatkovich’s admission and Dr. Bederson’s testimony, I find AIT has failed

9

to raise a genuine dispute of fact and a skilled artisan would find that Popp disclosed its “Web

10
11

page” is a “dynamically generated application.”
2. Popp discloses “a server computer;”

12

Salesforce relies on Dr. Bederson’s testimony in support of its motion for this limitation.

13

Dkt. 280 at 22 (relying on Dkt. 280-2, Bederson Rpt. ¶ 400). Dr. Bederson opined that Popp

14

discloses an “internal application” that generates Web pages whose contents “can contain data

15

retrieved from a[] . . . database server 318.” Dkt. 280-2, Bederson Rpt. ¶ 400.

16

AIT did not dispute the presence of this limitation in its responsive papers.

17

Thus, I find AIT has failed to raise a genuine dispute of fact and a skilled artisan would

18

find Popp’s “database server 318” is a “server computer.”

19

3. Popp discloses “one or more client computers

20

connected to the server computer over a computer

21

network;”

22

Salesforce relies on Dr. Bederson’s testimony in support of its motion. Dkt. 280 at 22

23

(citing Dkt. 280-2, Bederson Rpt. ¶ 401). Dr. Bederson opined Popp discloses this limitation,

24

including because Popp teaches that “an Automobile Shopper’s application . . . provides a series
21 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 22 of 48

1

of screens (i.e., Web pages) based on user-input that are designed to facilitate the selection and

2

purchase of an automobile.” Dkt. 280-2, Bederson Rpt. ¶ 401.

3

AIT did not separately dispute the presence of this limitation in its responsive papers.

4

Thus, there is no genuine dispute that Popp discloses this limitation.

5

4. Popp discloses “a first layer associated with the

6

server computer containing information about the

7

unique aspects of a particular application;”

8

Salesforce relies on Dr. Bederson’s testimony in support of its motion. Dkt. 280 at 22

9

(relying on Dkt. 280-2, Bederson Rpt. at ¶ 402). Dr. Bederson opined that Popp discloses this

10

limitation because Popp teaches an “internal application” that generates Web pages whose contents

11

“can contain data retrieved from . . . database server 318.” Dkt. 280-2, Bederson Rpt. ¶ 402. Dr.

12

Bederson further opined “Popp discloses that “an Automobile Shopper’s application ... provides a

13

series of screens (i.e., Web pages) based on user-input that are designed to facilitate the selection

14

and purchase of an automobile.” Id. Dr. Bederson explained the “application . . . fetches all the

15

data from the database,” such as “all of the models of cars that are within the price range and type

16

specifications.” Id.

17

In opposition, AIT argues that Dr. Bederson’s opinions are conclusory such that a

18

reasonable juror would not be required to accept such opinions as true. Dkt. 297 at 25, 27. In

19

particular, AIT argues Dr. Bederson failed to “identify or explain” why the data he identified, “all

20

the models of cars within a price range,” would be considered information “about” a particular

21

“aspect” of an “application.” Dkt. 297 at 27 (“[W]ith respect to the first layer, Dr. Bederson fails

22

to identify or explain how the data he identified as ‘unique information’ is data ‘about’ an ‘aspect’

23

of an ‘application.’” See Ex. 2 (Bederson Op.) at ¶ 402) (relying on Dkt. 280-2, Bederson Rep. at

24

¶ 402)). I do not find Dr. Bederson’s opinion with respect to this limitation conclusory.
22 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 23 of 48

1

In addition, AIT relies on Mr. Zatkovich’s opinions in opposition to Salesforce’s motion.

2

Dkt. 297 at 24-45 (relying on Dkt. 280-6, Zatkovich Reb. at ¶¶ 242-244). Mr. Zatkovich opined

3

that Popp’s database “contains merely the data on which a conventional application operates,”

4

which would not be considered “information about unique aspects” of the application itself. Dkt.

5

280-6, Zatkovich Reb. at ¶ 242. He further opined the data, models of cars within a price range, is

6

not “information about the unique aspects of a particular application” and is “merely data stored

7

by the application,” and such data does not define any aspect of the application user interface or

8

application functionality. Id. AIT has further relied on Mr. Zatkovich’s testimony regarding the

9

plain meaning of the claim limitation at issue and the manner in which Mr. Zatkovich understood

10

the claim language in its Daubert opposition. Dkt. 295-1 at 15 (relying on Dkt. 295-2, Zatkovich

11

8/24/2022 Tr. at 588:15–23, 589:2–4, 593:14–18); See also Dkt. 295-2, Zatkovich 8/24/2022 Tr.

12

at 654:4–25.

13

Salesforce urges that there is no evidence suggesting to a person of ordinary skill in the art

14

that the term “aspects” as used in the asserted patents should be limited to exclude data. AIT does

15

not dispute that the “information” required by the claim may include “data.” Indeed, asserted

16

dependent claim 23 of the ’482 patent requires that “the first layer comprises ... data,” confirming

17

that the claimed “first layer” information is sufficiently broad to encompass “data.” Littelfuse, Inc.

18

v. Mersen USA EP Corp., 29 F. 4th 1376, 1380 (Fed. Cir. 2022) (“[A]n independent claim is

19

broader than a claim that depends from it, so if a dependent claim reads on a particular embodiment

20

of the claimed invention, the corresponding independent claim must cover that embodiment as

21

well.”). As such, I find there is nothing in the claim language itself that would permit a reasonable

22

juror to conclude that Popp does not disclose this limitation. With respect to Salesforce’s Daubert

23

motion, the parties also relied on additional materials including the opinions of Mr. Zatkovich in

24
23 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 24 of 48

1

his report and at his deposition with respect to this limitation. I have considered Mr. Zatkovich’s

2

opinions and found them insufficient to raise a disputed question of material fact.

3

5. Popp discloses “a third layer associated with the

4

server computer that retrieves the data in the first and

5

second layer in order to generate the functionality

6

and user interface elements of the application; and”

7

Salesforce relies on Dr. Bederson’s testimony in support of its motion with respect to this

8

limitation. Dkt. 280 at 24 (citing Dkt. 280-2, Bederson Rpt., ¶ 405). Dr. Bederson opined Popp

9

discloses this limitation, including because Popp teaches that “the Automobile Shopper application

10

provides an example of the use of dynamic pages.” Dkt. 280-2, Bederson Rpt. ¶ 405. Dr. Bederson

11

concluded “the internal application (third layer) dynamically generates functionality and a user

12

interface for an Automobile Shopper web page (application) using the object tree that defines the

13

web page’s user interface (second layer) that is populated with data from the database (first layer).”

14

Id.

15

AIT relies on Mr. Zatkovich’s opinions in opposition to Salesforce’s motion. Dkt. 297 at

16

25 (citing Dkt. 280-6, Zatkovich Reb. ¶ 251). Mr. Zatkovich opined that Popp does not disclose

17

this limitation. He explained “Dr. Bederson appears to be mapping the claimed ‘third layer’ to

18

Popp’s ‘scriptedControl object.’” Dkt. 280-6, Zatkovich Reb. ¶ 251. He further opined “the

19

scriptedControl object does not ‘generate the functionality and user interface elements of the

20

application’ as claimed. Rather, the scriptedControl object is involved in the generation of HTML

21

code for a static application with a fixed functionality and user interface.” Id. Mr. Zatkovich further

22

opined that “a control object such as the scriptedControl object is just a programming construct

23

that implements a static functionality and user interface by creating the appropriate Web page.”

24

Id.
24 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 25 of 48

1

AIT further argued that a reasonable juror would not be required to accept Dr. Bederson’s

2

opinions regarding the “third layer” because they are conclusory. Dkt. 297 at 27. AIT argues, with

3

respect to the “third layer,” Dr. Bederson references an “internal application” that appears nowhere

4

in Popp and simply calls it a “third layer,” without identifying the “internal application,” or

5

providing analysis. Id. (citing Dkt. 280-2, Bederson Rpt. at ¶ 405).

6

In reply, Salesforce argues that Mr. Zatkovich’s opinions are no different from his opinions

7

regarding “dynamically generating” addressed above in the preamble and should be rejected for

8

the same reason. Dkt. 323 at 12–13. I agree. Mr. Zatkovich’s opinions are insufficient to raise a

9

question of fact in the face of Dr. Bederson’s opinions which I do not find so conclusory that they

10

would not be accepted as true by a reasonable finder of fact. As such, for the reasons stated above

11

regarding “dynamically generating,” I find there is no genuine dispute of fact that Popp discloses

12

this limitation.
6. Popp discloses “a change management layer for

13
14

automatically detecting changes that affect an

15

application,”

16

Both parties moved for summary judgment with respect to this limitation under both

17

anticipation and obviousness. I address the evidence and the parties’ respective arguments below.
A. Anticipation

18
19

Salesforce relied on the opinions of Dr. Bederson in support of its motion with respect to

20

this limitation. Dkt. 280 at 25 (citing Bederson Rpt. ¶ 407). Dr. Bederson opined “Popp discloses

21

and anticipates the[] claims under AIT’s interpretation 4 of ‘a change management layer’ and

22
23
24

4

Dr. Bederson referred to the interpretation of the claims he used for anticipation as “AIT’s interpretation.” I have
used that terminology here as well to avoid confusion. The interpretation can be more accurately characterized as
Dr. Bederson’s anticipation interpretation since it is the interpretation used by Dr. Bederson for purposes of
anticipation.

25 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 26 of 48

1

‘automatically detecting changes that affect a particular application.’” Dkt. 280-2, Bederson Rpt.

2

¶ 407. 5 For anticipation, with respect to “intelligent agent” and “changes that affect,” Dr. Bederson

3

explained the interpretation of the claim language he used for anticipation encompasses “any

4

software ... capable of automatically detecting changes.” See Dkt. 280-2, Bederson Rpt. at ¶154,

5

¶153, ¶167 (“Under AIT’s interpretation, any software ... capable of automatically detecting

6

changes qualifies as an ‘intelligent agent,’ removing all meaning from that requirement.”), ¶277

7

(“... Under AIT’s interpretation, any software ... capable of automatically detecting changes

8

qualifies as an ‘intelligent agent,’ removing all meaning from that requirement.”).

9

Dr. Bederson opined that Popp’s “inputControl 664” can detect if “the client may have

10

modified field 632 to specify a new name.” Dkt. 280-2, Bederson Rpt. ¶ 407 (citing Popp at 22:37-

11

48). Under his recitation of AIT’s interpretation, Dr. Bederson opined inputControl 664 would be

12

considered an “intelligent agent” and modifying a field to specify a “new name” would be a

13

“change that affects” an application. Dkt. 280-2, Bederson Rpt. ¶ 407. With respect to anticipation

14

by Popp, Dr. Bederson further opined that Popp’s “input Control 664” would be considered both

15

a “change management layer” and an “intelligent agent.” Id.

16

In its moving papers, Salesforce further relies on the absence of contrary opinions of Mr.

17

Zatkovich directed to whether Popp discloses an “intelligent agent” and its Daubert motion with

18

respect to “changes that affect” an application.

19

To the extent Salesforce relied on its Daubert arguments with respect to this limitation,

20

AIT relied on its opposition to Salesforce’s Daubert motion in opposition. See Dkt. 295-1 at 20-

21

24. AIT’s response further relies on its motion for summary judgment of no anticipation and the

22
23
24

5

Dr. Bederson also offered opinions regarding this limitation under what he deemed the “correct” or proper
application of this limitation to a person of ordinary skill in the art. Those opinions are addressed below in
obviousness.

26 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 27 of 48

1

evidence and argument relied on therein. Dkt. 270. In moving for summary judgment in its favor,

2

AIT argued that Dr. Bederson’s opinions directed to “AIT’s interpretation” were insufficient to

3

raise a question of fact. Id. AIT relied on Mr. Zatkovich’s opinions in support of its motion and in

4

opposition to Salesforce’s motion. Id. Mr. Zatkovich opined:

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

Second, “changes in field 632” are not “changes that affect an
application.” Rather, field 632 includes data such as an employee’s
name. Object inputControl 664 simply “pushes and pulls data.”
Such data does not “affect an application,” but rather is the data
on which the application operates. The application itself is entirely
unaffected by a change of an employee’s name in the database, for
example.
Third, Dr. Bederson’s statement that “changes in field 632 ...
affect[] ... the information in the Web page objects (second layer)”
is confusing if not incorrect. ... To the extent Dr. Bederson refers to
what he opined is the “second layer,” i.e., objects 216 and HTML
elements, Popp does not teach that changes in field 632 affect in
any way those objects and elements. Rather, as already explained,
changes in field 632 are changes in the data that Popp’s application
operates on.
Dkt. 280-6 Zatkovich Reb. ¶¶ 255–256, 281.
In response to Salesforce’s Daubert motion, AIT relied on Mr. Zatkovich’s explanation
regarding the difference between changes that “affect” an application itself and changes to data
“input” into an application. Dkt. 295 at 15 (relying on Dkt. 297-3, Zatkovich 8/24/2022 Tr. at
593:14–18, 594:20–24, 595:5–8, 595:16–18, 595:25–596:3). Mr. Zatkovich did not offer opinions
directed to whether “inputControl 664” is an “intelligent agent.” He also does not dispute that
under what Dr. Bederson called “AIT’s interpretation,” Popp discloses an “intelligent agent” for
detecting “changes that affect” an application.
In opposition to Salesforce’s motion and in support of its own, AIT further relied on Dr.
Bederson’s testimony and argued it was insufficient to raise a question of fact supporting
anticipation and judgment should be granted in AIT’s favor. Dkt. 297 at 22-23. AIT relied on Dr.

27 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 28 of 48

1

Bederson’s various opinions regarding the ordinary meaning of “changes that affect” an

2

application. Dkt. 154-2 (Bederson Decl.) at ¶ 109; Dkt. 297-9 Bederson Tr. at 69:15–70:2. In

3

addition, AIT relies on Dr. Bederson’s belief that the ordinary meaning of “affect” requires a

4

certain materiality element and his opinion that changes “must ‘affect’ the business with sufficient

5

materiality” to require the change to be incorporated into the application. Dkt. 154-2, Bederson

6

Decl. at ¶ 125. AIT further argues Dr. Bederson’s opinions failed to evidence how a skilled artisan

7

would apply “intelligent agent” and the claim language requires changes that “affect” an

8

application. Dkt. 297 at 23 (relying on Dkt. 282-2 Bederson Op. at ¶¶ 224, 278; Dkt. 154-2

9

(Bederson Decl.) at ¶¶ 109, 131 (explaining understanding of AIT’s interpretation of “changes that

10

affect” an application “encompass[es] any changes of any type ....”)); Dkt. 125:4-127:5. To the

11

extent AIT’s motion for summary judgment is denied, AIT argues that its summary judgment

12

motion at least raises a question of fact. Dkt. 297.

13

In opposition to AIT’s motion, Salesforce urged under “AIT’s infringement theories, an

14

‘intelligent agent’ can be virtually any software program, and changes that ‘affect’ an application

15

include changes to the application itself, then those interpretations should apply for invalidity as

16

well, and Dr. Bederson should be free to explain that the claims are anticipated as a result.” Dkt.

17

298 at 2. Salesforce further argued “Mr. Zatkovich in his expert report applied an unduly broad

18

interpretation to ‘intelligent agent’ and ‘changes that affect’ in an effort to show infringement

19

where there is none.” Id. at 10.

20

In reply, AIT did not dispute the admissibility of Dr. Bederson’s opinions. Instead, AIT

21

argued that such opinions were insufficient to support a conclusion of invalidity in the absence of

22

additional evidence, such as testimony from AIT’s experts or a comparison of a prior art reference

23

to the accused products, demonstrating that the interpretation applied by Dr. Bederson for

24

anticipation was necessary for infringement. Dkt. 312 at 11-14 (relying on TiVo, Inc. v. EchoStar
28 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 29 of 48

1

Communications Corp., 516 F.3d 1290, 1311 (Fed. Cir. 2008) and 01 Communique Lab., Inc. v.

2

Citrix Sys., Inc., 889 F.3d 735, 741-42 (Fed. Cir. 2018)).

3

With respect to AIT’s motion, the Court denies AIT’s motion for summary judgment of no

4

anticipation with respect to “intelligent agent” and “changes that affect.” Ultimately, Dr.

5

Bederson’s opinions are admissible and an analysis of these aspects of the claim language and the

6

Court’s construction in the alternative (assuming infringement) is an acceptable methodology often

7

used in expert invalidity reports. 01 Communique Lab., Inc. v. Citrix Sys., Inc., 889 F.3d 735, 741-

8

42 (Fed. Cir. 2018) (finding “nothing improper about this argument” in the alternative); Stryker

9

Corp. v. Zimmer, Inc., 782 F.3d 649, 658 n.4 (Fed. Cir. 2015) (vacated on other grounds by Halo

10

Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S. 93 (2016)) (“[N]othing precludes [defendant] from

11

arguing for a narrower application of the limitation on the infringement context, while also

12

arguing, in the alternative, that—if the district court were to disagree—the patent claim would be

13

so broad as to be invalid.”).

14

Having determined that Dr. Bederson’s opinions are admissible, I turn to Salesforce’s

15

motion. With respect to Salesforce’s motion, I find as a matter of law “inputControl 664” is an

16

intelligent agent that automatically detects changes that affect an application, at least under what

17

Dr. Bederson identified as “AIT’s interpretation” of “intelligent agent” and “changes that affect.”

18

Dkt. 280-2, Bederson Rpt. ¶ 407 (citing Popp at 22:37-48). Mr. Zatkovich does not dispute that

19

Popp discloses an “inputControl 664” that can detect if “the client may have modified field 632 to

20

specify a new name.” A skilled artisan would find the detection of a name entered in a field to be

21

a change that affects an application under at least Dr. Bederson’s understanding of AIT’s

22

interpretation. Id. I further find Mr. Zatkovich’s opinion that the identified changes in Popp are to

23

“the data on which the application operates” and not the application itself (which he opines remains

24
29 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 30 of 48

1

unchanged) insufficient to raise a dispute of fact regarding the application of the ordinary meaning

2

of this term. Dkt 280-6, Zatkovich Rbt. Rpt. ¶ 253-257.

3

The Court does not need to address Salesforce’s Daubert arguments directed to whether

4

Mr. Zatkovich’s opinions regarding “changes that affect an application” are admissible. Instead, a

5

skilled artisan would find the claim language broad enough to encompass any “changes” related

6

to an application, such as the change of an employee’s name in a database. As detailed above, I

7

find that the mere fact that such information is data that the application operates on is insufficient

8

to raise a question of fact with respect to whether changes in such data “affect” an application.

9

Having considered the evidence and the arguments of the parties, I find there is no genuine

10

dispute of fact that Popp’s “inputControl 664” is a “change management layer” and “intelligent

11

agent” for automatically detecting changes as a matter of law. Accordingly, Popp discloses the

12

claim limitation “a change management layer for automatically detecting changes that affect an

13

application” as a matter of law.
B. Obviousness

14
15
16

Salesforce’s obviousness argument with respect to this limitation is addressed to the
portion of this limitation requiring an “intelligent agent.”

17

Salesforce relies largely on Dr. Bederson’s testimony in support of its motion. Dkt. 280

18

(citing Dkt. 280-2, Bederson Rpt. ¶¶ 26-427). Dr. Bederson opined Amati discloses an “intelligent

19

agent.” Dkt. 280-2, Bederson Rpt. ¶ 426. He further opined Amati’s “ABIS (Agent Based

20

Information System)” includes “[a]n agent [that] is an intelligent entity designed to act on behalf

21

of a user” by “agent autonomously navigat[ing] the network looking for relevant documents.” Id.

22

(citing Dkt 280-18 (Amati) at 1015).

23

Dr. Bederson further opined that a person of ordinary skill in the art would have been

24

motivated to combine Popp and Amati to find the claimed inventions obvious. Dkt. 280-2,
30 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 31 of 48

1

Bederson Rpt. ¶ 427. Dr. Bederson opined that it would have been obvious to incorporate Amati’s

2

teaching regarding an “ABIS” agent into Popp such that Popp’s “inputControl 664,” which for

3

example detects if “the client may have modified field 632 to specify a new name,” is an ABIS

4

agent as taught in Amati. Id. ¶ 427 (citing Popp at 22:37-43). Thus, for obviousness, Dr. Bederson

5

explains that Popp’s “inputControl 664,” which meets the “intelligent agent” and “change

6

management layer” for anticipation, would be replaced with an ABIS agent. Id. Dr. Bederson

7

opined that “the combination would enhance the ease with which users would receive information”

8

and that it “would result in improved quality of content with less effort,” particularly because

9

“Amati explains that its ‘ABIS’ intelligent agent ‘minimizes user’s effort in selecting the huge

10

amount of available documents.” Dkt 280-2 (Bederson Report) ¶¶ 226-27 (quoting Amati at

11

Abstract).

12

Salesforce further urges that a skilled artisan would find Popp and Amati directed to

13

analogous art, the field of information processing, as a matter of law. Dkt. 280 at 25 (relying on

14

Dkt. 280-13 (Popp) at Abstract; Dkt. 280-14 (Amati) at 1007). Dr. Bederson opined a person of

15

ordinary skill in the art would be motivated to combine Popp with Amati because an intelligent

16

agent such as the ABIS agent is “capable of acting autonomously, facing unexpected events and

17

cultivating a trustful relationship with the user.” Dkt. 280-2, Bederson Rpt. ¶ 235 (citing Amati at

18

1015). Further, Dr. Bederson opined a person of ordinary skill in the art would have found that

19

such a combination would be reasonably expected to succeed and yield the predictable result of

20

Popp’s inputControl detecting and reacting to changes based on the criteria described in Amati,

21

such as the user’s “Preference Profile that describes the current user interest.” Dkt 280-2, Bederson

22

Rpt. ¶ 427.

23

AIT argues that Dr. Bederson’s opinions on obviousness are conclusory and insufficient to

24

grant judgment in Salesforce’s favor. Dkt. 297-1 at 28 (criticizing Dr. Bederson’s opinions for not
31 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 32 of 48

1

“explaining why a skilled artisan would add the specific ‘intelligent agent’ of Amati to Popp or

2

providing any analysis or evidence of the particular benefits of the “ABIS” agent or why it would

3

benefit Popp) (citing Dkt. 280-2, Bederson Op. at ¶ 427). In addition, AIT relies on the opinions

4

of Mr. Zatkovich. Dkt. 297-1 at 28-29 (relying on Dkt. 280-6, Zatkovich Rbt. Rpt. ¶¶ 1151-1158,

5

1184). Mr. Zatkovich did not dispute that Amati discloses an “intelligent agent.” AIT argues Mr.

6

Zatkovich’s opinions are inconsistent with a finding that it would have been obvious as a matter

7

of law to combine Popp and Amati to render the Asserted Claims obvious for a number of reasons.

8

First, Mr. Zatkovich opines that if Amati’s intelligent agent function was to “retrieve information,

9

specifically documents, from external archives and databases,” there was no need to add that type

10

of “intelligent agent” to Popp. Dkt. 280-6, Zatkovich Rbt. Rpt. at ¶¶ 1153–55.

11

Second, Mr. Zatkovich opined that Popp is related to “developing and managing

12

transactions on the Internet,” and Amati is related to the different “field of searching and navigating

13

open data repositories on a network.” Dkt. 280-6, Zatkovich Reb. Rpt. at ¶¶ 1152, 1184. With

14

respect to the art, AIT argues that Salesforce wrongly assumes a reasonable juror must find that

15

Popp and Amati are analogous art. Dkt. 297 at 29 (relying on Dkt. 280-6, Bederson Rbt. Rpt. at ¶¶

16

1152, 1184).

17

Third, AIT relies on Mr. Zatkovich’s opinions directed to various aspects of the particular

18

Popp/Amati combination. Dkt. 280-6, Zatkovich Reb. Rpt. at ¶¶ 1151–1158. Mr. Zatkovich opined

19

that “a person would not look to Amati to solve problems in Popp’s field,” that Amati’s intelligent

20

agent “does not disclose any type of changes made to data to input fields,” that Amati’s “ABIS”

21

“would serve no purpose in Popp,” that Popp has “no need to incorporate Amati’s intelligent agent”

22

because Popp already detects data changes using “inputControl 664” without any problem. Id. Mr.

23

Zatkovich further explained there would be no expectation of success because “Amati would not

24

be capable of performing any functionality involved in Popp.” Id. at ¶ 1156.
32 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 33 of 48

1

I have considered AIT’s evidence and arguments and ultimately find them unpersuasive.

2

In particular, as I explained at the summary judgment hearing, Popp automatically detects changes

3

based upon input by an end user. Amati’s teaching regarding an “intelligent agent” would be

4

beneficial in this environment. Mr. Zatkovich fails to explain why Amati’s intelligent agent would

5

not be naturally used to search a network for changes, detect changes that would affect not only

6

functionality of the program but would detect and implement, for example, display of text on a

7

website.

8

Having considered the evidence and the arguments of the parties, I find there is no genuine

9

dispute of fact that it would have been obvious to replace Popp’s “inputControl 664,” the “change

10

management layer” and “intelligent agent” for automatically detecting changes disclosed in Popp,

11

with Amati’s ABIS Agent thereby arriving at the claimed invention. Accordingly, I find to the

12

extent an “intelligent agent” is not disclosed in Popp, it would have been obvious to combine Popp

13

and Amati and arrive at the claimed invention, as a matter of law.

14

7. Popp discloses “each client computer further

15

comprising a browser application being executed by

16

each client computer, wherein a user interface and

17

functionality for the particular application is

18

distributed

19

dynamically generated when the client computer

20

connects to the server computer”

to

the

browser

application

and

21

Salesforce relies on Dr. Bederson’s testimony in support of its motion with respect to this

22

limitation. Dkt. 280 at 26 (citing Bederson Rpt. ¶ 408). Dr. Bederson opined Popp discloses this

23

limitation, including at least because Popp teaches that clients connect to the server via HTTP and

24
33 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 34 of 48

1

the server responds with the requested information as a Web page. Dkt. 280-2 (citing Dkt 280-17

2

(Popp) at 1:43-54, 3:53-61).

3

AIT relies on Mr. Zatkovich’s opinions in opposition to Salesforce’s motion. Dkt 297 at

4

25 (citing Zatkovich Rbt. Rpt. ¶¶ 259-260). Mr. Zatkovich opined that Popp does not teach a Java

5

applet and it would not necessarily be present. Dkt. 280-6, Zatkovich Rbt. Rpt. ¶ 259. Mr.

6

Zatkovich further opined that “Popp’s Web pages provide access to a static application (application

7

214) with fixed functionality and a fixed user interface.” Id. at ¶ 260.

8

In reply, Salesforce argued that the disagreement between the parties’ experts “does not

9

create a genuine dispute of material because Mr. Zatkovich admits that the Web page distributed

10

in Popp includes the user interface and functionality.” Dkt. 323 at 16 (relying on Dkt. 285-9

11

(Zatkovich 8/24/2022 Tr.) at 583:15-18 (“[Y]ou don’t dispute, right, that Popp’s Web page

12

includes functionality, do you? A. No, I don’t dispute that.”); Dkt. 285-10 (Zatkovich Rbt. Rpt. ¶

13

251 (admitting that the HTML code” for “the appropriate Web page” contains “functionality and

14

user interface”)). I agree with Salesforce. I further agree with Salesforce that Mr. Zatkovich’s

15

opinion that Popp’s Web page is “a static application (application 214) with fixed functionality

16

and a fixed user interface” (Dkt 297 at 25), which has been addressed above in the context of the

17

“dynamically generated application” claim language, fails to raise a question of fact with respect

18

to this limitation.

19

In sum, Salesforce has demonstrated both that claim 1 of the ’482 patent is anticipated by

20

Popp, and also that claim 1 is rendered obvious by the combination of Popp and Amati. No

21

reasonable jury could reach a contrary conclusion.

22
23
24

b. Claim 10
Claim 10 is dependent on claim 1 and adds a limitation for a “a builder module for
permitting a user to build a user interface for a particular application using the second layer.”
34 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 35 of 48

1

Salesforce relies on Dr. Bederson’s testimony in support of its motion with respect to this

2

limitation. Dkt. 280 at 26-27 (relying on Ex. 2 (Bederson Rpt.) ¶ 410.) Dr. Bederson opined Popp

3

discloses this claim “because Popp’s system includes a builder module for permitting a user to

4

build a particular Web page (application), including its UI, using the shared object tree components

5

or modules (second layer).” Dkt. 280-2 (Bederson Rpt.) ¶ 410 (quoting Dkt. 280-17 (Popp) at -

6

8:3242 (“Development of an internal application can be efficient and flexible . . . . Developers

7

have the ability to incorporate pre-existing modules into the internal application. Modules are self-

8

contained to facilitate module maintenance and interaction.”)). In its moving papers, Salesforce

9

also cited Mr. Zatkovich’s opinions, Dkt. 280 at 27 (citing Dkt. 280-6, Zatkovich Rpt. ¶ 262-263)

10

and stated, “Mr. Zatkovich does not have any additional validity arguments for this claim.”

11

AIT relies on Mr. Zatkovich’s testimony in opposition to Salesforce’s motion with respect

12

to this limitation. Dkt. 297 at 25-26. Mr. Zatkovich opined that Popp does not disclose a “builder

13

module,” as required by claims 10 and 30 of the ’482 patent, because “Popp’s conventional

14

development techniques do not meet the ‘builder module’ limitations.” Dkt. 280-6, Zatkovich Rbt.

15

Rpt. ¶ 262). AIT further urged that Dr. Bederson’s contrary opinion is conclusory and unexplained.

16

In reply, Salesforce stated:

17

Mr. Zatkovich’s reason for reaching that conclusion was because
claims 10 and 30 require “using the second layer” and “developers
would implement Popp’s object class hierarchy in a conventional
object-oriented programming language and not as the claimed
‘second layer.’” Ex. 6 (Zatkovich Rbt. Rpt.) ¶ 262. Mr. Zatkovich
has since agreed that Popp does, in fact, disclose the claimed
“second layer.” Ex. 5 (Zatkovich 8/21/2022 Tr.) at 580:22-581:4.
Thus, Mr. Zatkovich no longer has a basis to contest Popp’s
disclosure of claims 10 and 30 of the ’482 patent.
Dkt. 323 at 16–17.

18
19
20
21
22
23
24

Having considered the evidence and arguments of the parties, I find Mr. Zatkovich’s
opinion is insufficient to withstand summary judgment in the face of Dr. Bederson’s testimony to

35 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 36 of 48

1

the contrary. Enzo Biochem, Inc. v. Applera Corp., 599 F.3d 1325, 1337 (Fed. Cir. 2010) (“[M]ere

2

denials or conclusory statements are insufficient to survive summary judgment.”) (quotation

3

omitted).

4
5
6

c. Claim 20
Claim 20 is dependent on claim 1 and adds a limitation: “wherein the first and second
layers are distributed across one or more server computers.”

7

Salesforce relies on Dr. Bederson’s testimony in support of its motion with respect to this

8

limitation. Dkt. 280 at 27 (citing Bederson Rpt. ¶ 412). Dr. Bederson opined Popp discloses this

9

claim, including because Popp teaches that database 224 (first layer) and Web page objects 216

10

(second layer) within application 214 can be distributed across one or more server computers in

11

server domain 208. Dkt. 280-2 Bederson Rpt. Dkt. ¶ 412 (citing Popp at FIG. 2; 7:32-35).

12
13
14

AIT did not separately dispute the presence of this limitation in its responsive papers. As
such, I find no dispute of material fact with respect to whether this limitation is disclosed.
d. Claim 21

15

Claim 21 of the ’482 Patent is an independent claim. In its moving papers, Salesforce stated

16

“Popp discloses the elements of independent claim 21 of the ’482 patent for the same reasons given

17

above in the context of claim 1 of the ’482 patent.” Dkt. 280 at 27. In its opposition, AIT did not

18

identify any differences in the claim language or claim scope when considering the validity of

19

claim 21 of the ’482 patent in light of claim 1 of the ’482 patent. As such, I find there is no genuine

20

dispute of fact that Popp discloses claim 21 of the ’482 patent for the same reasons that Popp

21

discloses claim 1 of the ’482 Patent.

22
23

e. Claims 23-26
Claims 23-26 are dependent claims of the ’482 Patent.

24
36 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 37 of 48

1
2

Claim 23 recites: “The method of claim 21, wherein the first layer 65 comprises a business
content database having data about one or more different predetermined business applications.”

3

Claim 24 recites: “The method of claim 23, wherein the data further comprises one or more

4

of business knowledge, logical designs, physical designs, physical structures and relationships

5

associated with the predetermined business application.”

6
7

Claim 25 recites: “The method of claim 23, wherein the second layer comprises a metadata
database comprising data about the structures and functions associated with any application.”

8

Claim 26 recites: “The method of claim 25, wherein the metadata data base further

9

comprises data about the user interface including one or more of tools, worklists, data entry forms,

10
11

reports, documents, processes, formulas and images.”
In its moving papers Salesforce stated, “Popp discloses claims 23-26 of the ’482 patent for

12

the same reasons given below in the context of claim 14-17 of the ’111 patent.” Dkt. 280 at 27.

13

In its opposition, AIT argued:

14
15
16
17
18
19
20
21
22
23
24

Dkt. 297 at 26.

Salesforce’s invalidity expert, Dr. Bederson, did not provide
opinions regarding the validity of claims 23–26 over Popp. Ex. 2
(Bederson Op.) at ¶¶ 172, 398, 424; See also Id. at ¶¶ 398–435. Nor
are those claims duplicative of claims 14–17 of the ’111 Patent.
Claims 23–24 of the ’482 Patent explicitly require a specific
“business content database,” which is not found in claims 14–15 of
the ’111 Patent. Similarly, claims 25–26 of the ’482 Patent require
a “metadata database” not required by claims 16–17 of the ’111
Patent.

AIT requested judgment in its favor based on this lack of evidence. Id.
In reply, Salesforce argued that “AIT provides no explanation of any substantive difference
between” claims 14-17 of the ’111 patent and claims 23-26 of the ’482 patent, and “never
affirmatively alleges that Popp does not disclose these claim limitations.” Dkt. 323 at 17. I find
claims 23-26 of the ’482 patent are substantively identical to claims 14-17 of the ’111 patent. The

37 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 38 of 48

1

only differences between these two sets of claims identified by AIT are the “business content

2

database” (claim 23) and “metadata database” (claims 25-26), but claims 14-17 of the ’111 patent

3

already require “information associated with one or more predetermined business applications”

4

(claim 14), “business knowledge” (claim 15), and “metadata” (claims 16-17). As such, Dr.

5

Bederson’s opinions with respect to Claims 14-17 of the ’111 Patent are sufficient to compel a

6

finding that Popp discloses the limitations of claims 23-26 of the ’482 patent.

7

In light of the lack of the lack of substantive difference between these two sets of claims,

8

AIT’s failure to raise a dispute of fact with respect to whether the limitations of claims 14-17 of

9

the ’111 Patent are disclosed in Popp (detailed below) compels a finding that the limitations of

10

claims 23-26 of the ’482 patent are also disclosed in Popp. 6
f. Claim 30 and 40

11

Claim 30 is dependent on claim 21 of the ’482 Patent and adds a limitation: “permitting a

12
13

user to build a user interface for a particular application using the second layer.”
Claim 40 is dependent on claim 21 of the ’482 Patent and adds a limitation: “distributing

14
15

the first and second layers across one or more server computers.”

16

In its moving papers, Salesforce stated “Popp discloses claims 30 and 40 of the ’482 patent

17

for the same reasons given below in the context of claim 10 and 20 of the ’[482] patent.” Dkt. 280

18

at 27. In its opposition, AIT did not raise any arguments in addition to the arguments it made with

19

respect to claims 30 and 40 in light of claims 10 and 20 of the ’482 patent. As such, I find there is

20

no genuine dispute of fact that Popp discloses claims 30 and 40 of the ’482 patent for the same

21
22
23
24

6

After filing its motion, Salesforce filed a motion to submit a supplemental expert report of Dr. Bederson to include
opinions addressed to these claims. However, that evidence was not in Salesforce’s moving papers, and it would not
be appropriate to rely on such evidence without providing AIT an opportunity to respond to the opinions contained
therein. Regardless, as I find the claims anticipated and obvious based on Dr. Bederson’s operative report there is no
need to rule with respect to that motion.

38 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 39 of 48

1

reasons given above in the context of claims 10 and 20 of the ’482 patent.
IV.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

Popp Anticipates Claims 13-17 of the ‘111 Patent and also
Renders them Obvious in Combination with Amati

Popp anticipates claims 13-17 of the ’111 patent and also renders them obvious in
combination with Amati.
a. Claim 13
Claim 13 is an independent claim. In its moving papers, Salesforce stated that “Popp
discloses the elements of claim 13 of the ’111 patent for the same reasons given above in the
context of claim 1 of the ’482 patent.” Dkt. 280 at 28.

In its opposition, AIT did not identify any differences in the claim language or claim scope
when considering the validity of claim 13 of the ’111 patent in light of claim 1 of the ’482 patent.
As such, I find there is no genuine dispute of fact that Popp discloses claim 13 of the ’111 patent
of the ’482 patent for the same reasons that Popp discloses claim 1 of the ’482 patent.
b. Claim 14
Claim 14 is dependent on claim 13 of the ’111 patent and adds a limitation: “wherein the
information of the first portion of the server includes information associated with one or more
predetermined business applications.”
Salesforce relies on Dr. Bederson’s testimony in support of its motion with respect to this
limitation. Dkt. 280 at 28 (citing Bederson Rpt. ¶ 1055). Dr. Bederson opined Popp discloses this
claim limitation because Popp teaches that the database “[d]ata source 630 can be, for example, an
enterprise’s corporate database.” Dkt. 280-2, Bederson Rpt. ¶ 1055 (citing (Popp) at 7:66-67,
22:64-65).

24
39 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 40 of 48

1

AIT did not separately dispute the presence of this limitation in its responsive papers or at

2

oral argument. As such, I find no dispute of material fact with respect to whether this limitation is

3

disclosed.

4

c. Claim 15

5

Claim 15 is dependent on claim 13 of the ’111 patent and adds a limitation: “wherein the

6

information of the first portion of the server includes at least one of business knowledge, logical

7

designs, physical designs, physical structures, and relationships associated with one or more

8

predetermined business applications.”

9

Salesforce relies on Dr. Bederson’s testimony in support of its motion with respect to this

10

limitation. Dkt. 280 at 28 (citing Bederson Rpt. ¶ 1057). Dr. Bederson opined Popp discloses this

11

limitation, including because Popp discloses that “[d]ata source 630 can be, for example, an

12

enterprise’s corporate database.” Dkt. 280-2, Bederson Rpt. ¶ 1057 (citing Popp at 19:35-38,

13

22:37-48, 22:64-65). Salesforce further argued Mr. Zatkovich retracted the opinions in his report

14

with respect to claim 15. Dkt. 280 at 28.

15

AIT relies on Mr. Zatkovich’s opinions in opposition to Salesforce’ motion with respect to

16

this limitation. Dkt. 297 at 26 (relying on Zatkovich Rbt. ¶ 285-87). In particular, Mr. Zatkovich

17

opined that the contents of the corporate database, such as employee names, “are merely user data,

18

not ‘business knowledge’” and that “‘business knowledge’ can be metadata that defines a business

19

application.” Dkt. 280-6, Zatkovich Rbt. Rpt. ¶ 285-87. In reply, Salesforce argued:

20
21
22
23
24

AIT asserts that Mr. Zatkovich “did not retract” his validity opinion
for claim 15 (Opp. at 26), but that assertion cannot be squared with
Mr. Zatkovich’s deposition testimony. Compare Ex. 6 (Zatkovich
Rbt. Rpt.) ¶ 286 (“[E]mployee names are merely user data, not
‘business knowledge.’”) with Ex. 19 (Zatkovich 8/24/2022 Tr.) at
501:17-20 (“Q. So you agree that in the actual claims, business
knowledge can be data or metadata? A. Yes.”). AIT cannot explain
away this contradiction between Mr. Zatkovich’s expert report and
his admission in deposition, and Mr. Zatkovich’s deposition
40 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 41 of 48

testimony thus establishes that claim 15 of the ’111 patent cannot
survive summary judgment. See Cleveland, 526 U.S. at 806.
Dkt. 297 at 28.

1
2
3

Ultimately, I agree with Salesforce that there appears to be a contradiction between Mr.

4

Zatkovich’s deposition testimony and the opinions expressed in Mr. Zatkovich’s expert report. As

5

such, I find no dispute of material fact with respect to whether this limitation is disclosed.
d. Claim 16

6
7

Claim 16 is dependent on claim 13 of the ’111 patent and adds a limitation: “the

8

information of the second portion of the server includes metadata representative of structures and

9

functions associated with a plurality of applications.”

10

Salesforce relies on Dr. Bederson’s testimony in support of its motion with respect to this

11

limitation. Dkt. 280 at 28 (citing Bederson Rpt. ¶ 1059). Dr. Bederson opined Popp teaches “Web

12

page objects (i.e., the second portion) include associations, which bind HTML elements that define

13

structure and functions of an application to locations in a Web page.” Dkt. 280-2, Bederson Rpt. ¶

14

1059 (citing (Popp) at 16:48-17:52). He further opined “[a]n association [that] provides binding

15

information to bind, for example, variables, objects, Web page definitions, and scripts to one

16

another.” Id.

17

Salesforce further addressed Mr. Zatkovich’s opinions with respect to this limitation. Dkt.

18

280 at 28. Salesforce argued that Mr. Zatkovich retracted his opinion that Dr. Bederson was

19

“mixing and matching different portions of Popp to meet the limitations of claim 16,” Dkt. 280-6

20

(Zatkovich Reb. Rpt.) ¶ 290), and that, therefore, his opinion could not raise a question of fact.

21

Dkt. 280 at 28. Salesforce relies on Mr. Zatkovich’s statement at deposition that “the metadata

22

itself in Popp does not include [certain] associations” and his further testimony that “[c]laim 16

23

doesn’t say that the metadata must include the associations.” Dkt. 285-9 (Zatkovich 8/24/2022 Tr.)

24

at 598:13-599:7.
41 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 42 of 48

1

In opposition to Salesforce’s motion with respect to this limitation, AIT relies on the

2

opinions of Mr. Zatkovich. Dkt. 297 at 26. Mr. Zatkovich opined that Dr. Bederson’s statement

3

that “Web page objects (i.e., the second portion) include associations, which bind HTML elements

4

that define structure and functions of an application to locations in a Web page” was incorrect.

5

Dkt. 280-6 (Zatkovich Reb. Rpt.) ¶ 290. Mr. Zatkovich further opined Dr. Bederson was “mixing

6

and matching” different portions of Popp to reach his conclusion that this limitation was satisfied

7

and that such opinions were not retracted.

8

In reply, Salesforce argued Mr. Zatkovich’s opinions regarding “mixing and matching” in

9

his report are irrelevant in light of Mr. Zatkovich’s deposition testimony. Dkt. 323 at 17. Having

10

reviewed the relied-on evidence, I conclude there is no dispute of material fact that this limitation

11

is satisfied.
e. Claim 17

12
13

Claim 17 is dependent on claim 13 of the ’111 patent and adds a limitation: “wherein the

14

information of the second portion of the server includes metadata representative of user interface

15

elements including at least one of tools, worklists, data entry points, reports, documents, processes,

16

formulas, and images.”

17

Salesforce relies on Dr. Bederson’s testimony in support of its motion with respect to this

18

limitation. Dkt. 280 at 29 (citing Dkt. 280-2, Bederson Rpt. ¶ 1061). Dr. Bederson opined Popp

19

discloses this limitation because Popp discloses “associations” as part of the second layer which

20

are metadata about Web page objects. Dkt. 280-2, Bederson Rpt. ¶ 1061 (citing Popp at 20:21-27).

21

AIT did not separately dispute the presence of this limitation in its responsive papers. As such, I

22

find no dispute of material fact with respect to whether this limitation is disclosed.

23

V.

AIT’s Arguments Addressed to the Credibility of Dr. Bederson

24
42 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 43 of 48

1

In opposition to Salesforce’s motion, AIT argues that “[a] reasonable juror is not required

2

to credit Dr. Bederson’s testimony.” Dkt. 297 at 27-28. In particular, AIT argued (and it is

3

undisputed) that Dr. Bederson copied his substantive opinions on Popp from a declaration

4

submitted by a different expert, Dr. Schmidt, from an ex parte reexamination (“XPR”) proceeding

5

before the United States Patent and Trademark Office. Id. (relying on compare Dkt. 297-4

6

(Schmidt XPR Decl.) at ¶¶ 90–116 with Dkt. 280-2 (Bederson Rpt.) ¶ 19 (Bederson Op.) at ¶¶

7

399–423). AIT argued that Dr. Bederson’s testimony that he performed “an independent analysis”

8

(Dkt. 297-9 (Bederson Tr.) at 15:8–20, 16:21–25), is not required to be accepted as true. Dkt. 297

9

at 28. Instead, AIT argued given the nature of the opinions, it defies credibility for Dr. Bederson

10

to have formed the identical opinions of Dr. Schmidt from the XPR proceeding without speaking

11

to him. Id. (citing Dkt. 297-9 (Bederson Tr.) at 17:11–17).

12

AIT further urged that a reasonable jury could question the credibility of Dr. Bederson’s

13

invalidity opinions with respect to Popp given the time he spent on his reports, the numerous

14

opinions offered, and his inability to answer certain questions at deposition. AIT argued:

15
16
17
18
19
20
21
22
23
24

The evidence further shows that Dr. Bederson barely reviewed the
opinions he offered before asserting that the Asserted Claims were
invalid for hundreds of reasons. In this dispute alone, over the last
seven years, Dr. Bederson has submitted over 1,000 pages of
opinions including three claim construction declarations, a
declaration of invalidity to the patent office, and an 800-page
invalidity report. Ex. I (Bederson Tr.) at 25:5–20; Dkt. 68-1
(October 2015 Bederson Decl.); Dkt. 154-2 (April 2021 Bederson
Decl.); Dkt. 159-3 (May 2021 Bederson Decl.); Ex. 2 (Bederson
Op.). Despite this, Dr. Bederson explained he spent only
approximately 250 hours on all of his reports and declarations over
the last seven years, working solely with Salesforce’s attorneys. Ex.
I (Bederson Tr.) at 23:19–24:6, 25:5–20, 28:25–29:15. Dr. Bederson
could not estimate the percentage of the report that he wrote, the
amount of time he spent preparing his invalidity report in this matter,
or when he began preparing his invalidity report. Id. at 26:8–28:16;
145:1–146:2, 247:7–249:11.
Dkt. 297 at 28-29.
43 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 44 of 48

1

In reply, Salesforce argued:
AIT criticizes Dr. Bederson for allegedly adopting the opinions of
another Salesforce expert, Dr. Schmidt, regarding Popp and
spending “only” about 250 hours working on this case. Opp. at 2758. But as even AIT admits, “Dr. Bederson stated that he performed
an independent analysis” of the claim limitations. Id. at 28 n. 7. After
independently reviewing Dr. Schmidt’s analysis regarding Popp,
Dr. Bederson agreed with Dr. Schmidt’s positions and therefore
decided not to gratuitously rewrite them. Dkt. 297-9 (Bederson
9/1/2022 Tr.) at 15:10-20.

2
3
4
5
6
7

Dkt. 323 at 18.

8

Salesforce relies on case law demonstrating that simply asserting that a movant’s witness

9

is “not to be believed” is insufficient to survive summary judgment. See TypeRight Keyboard

10

Corp. v. Microsoft Corp., 374 F.3d 1151, 1158-59 (Fed. Cir. 2004) (“Summary judgment should

11

not be denied simply because the opposing party asserts that the movant’s witnesses are not to be

12

believed. However, summary judgment is not appropriate where the opposing party offers specific

13

facts that call into question the credibility of the movants witnesses.”). Consistent with that

14

decision and Salesforce’s argument, I find that AIT’s arguments and evidence are insufficient to

15

deny summary judgment in Salesforce’s favor with respect to Popp.

16
17
18
19
20
21
22
23

VI.

Objective Indicia of Non-Obviousness Cannot Sustain Validity
of the ‘482 or ‘111 Patents

AIT argues that there is objective evidence that supports the non-obviousness of the
asserted claims. However, secondary considerations are only applicable to obviousness, not
anticipation, and therefore do not affect the Court’s finding that the asserted claims are anticipated
by Popp. Cohesive Techs., Inc. v. Waters Corp., 543 F.3d 1351, 1364 (Fed. Cir. 2008)
(“[S]econdary considerations are not an element of a claim of anticipation.”). An obviousness
analysis requires consideration of any evidence tending to objectively show non-obviousness.

24
44 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 45 of 48

1

Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc., 617 F.3d 1296,

2

1305 (Fed. Cir. 2010). AIT argues:
[T]here is no dispute that the Accused Products have been
enormously commercially successful. Ex. 6 (Zatkovich Reb.) at ¶
1512. Salesforce argues “commercial success” can be ignored
because there is no evidence of a “nexus” between Salesforce’s
success and the patented inventions. Mot. at 30. Yet, Mr. Zatkovich
opined after an exhaustive review of the evidence that the patented
inventions are “an important aspect” of the Accused Products’
success. Id. at ¶ 1513; See also Id. at ¶¶ 1514–26. Mr. Zatkovich’s
opinion is supported by 25 pages of evidence where Mr. Zatkovich
considered Salesforce’s witness testimony, Salesforce’s
documentary production, Salesforce’s admissions in this action, the
Asserted Patents, and the status of prior art. See Ex. 8 (Zatkovich
Op.) at ¶¶ 396–438 (discussing “Benefits of the Patented
Invention”); Ex. 6 (Zatkovich Reb.) at ¶ 1514 (referencing “Benefits
of the Patented Invention”), at ¶¶ 1593–95 (“Stated
Problem and Claimed Solution”). Mr. Zatkovich’s opinion cannot
be ignored merely because Dr. Bederson disagrees with Mr.
Zatkovich. See Ex. 6 (Zatkovich Reb.) at ¶¶ 1513–26 (rebutting Dr.
Bederson’s opinions).

3
4
5
6
7
8
9
10
11
12
13

Dkt. 297 at 29-30.

14

AIT’s evidence regarding the accused products cannot support non-obviousness because I

15

have found the accused products do not infringe. Therefore, the evidence relied on by AIT with

16

respect to commercial success is irrelevant.

17

Second, AIT argues:
Mr. Zatkovich’s opinions that the technological advantages of the
patented inventions objectively support non-obviousness. Ex. 6
(Zatkovich Reb.) at ¶¶ 1527–30. Further, as explained by Mr.
Zatkovich, Salesforce’s repeated public and internal statements
“praising the patented architecture and the benefits” achieved by
Salesforce through its practice of the patented invention “strongly
supports non-obviousness.” Id. at ¶¶ 1531–48. Mr. Zatkovich’s
opinions are supported by the Patents-in-Suit, deposition testimony,
and documentary evidence. Id. at ¶¶ 1527–48.

18
19
20
21
22
23

Dkt. 297 at 30.

24
45 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 46 of 48

1

AIT’s evidence regarding the technical advantages provided over and above existing

2

technologies and the praise it received is again tied to the accused products, which I have found

3

do not infringe. As such, the evidence relied on by AIT is not objective evidence of non-

4

obviousness of the asserted claims.

5

Third, AIT relies on Mr. Zatkovich’s opinion that “[w]here, as here, a primary reference is

6

not alleged to have a problem or need for improvement, objectively a skilled artisan would be less

7

likely to modify a reference merely for the purposes of complexity.” Dkt. 296 at 30 (relying on

8

Ex. 6 (Zatkovich Reb.) at ¶¶ 1549–51).

9

Mr. Zatkovich’s opinions directed to the lack of need for improvement in Popp is the only

10

objective evidence of non-obviousness offered by AIT that appears unrelated to the accused

11

products. However, as argued by Salesforce, objective evidence of non-obviousness cannot

12

overcome a strong obviousness case. See Intercontinental Great Brands LLC v. Kellogg N.A. Co.,

13

869 F.3d 1336, 1347 (Fed. Cr. 2017) (affirming grant of summary judgment on obviousness

14

notwithstanding patentee’s arguments based on secondary considerations); Ohio Willow Wood Co.

15

v. Alps South, LLC, 735 F.3d 1333, at 1344 (Fed. Cir. 2013) (“[W]here a claimed invention

16

represents no more than the predictable use of prior art elements according to established functions,

17

as here, evidence of secondary indicia are frequently deemed inadequate to establish non-

18

obviousness.); Western Union Co. v. MoneyGram Payment Sys., Inc., 626 F.3d 1361, 1373 (Fed.

19

Cir. 2010) (“[W]eak secondary considerations generally do not overcome a strong prima facie case

20

of obviousness.”); Tyco Healthcare Grp. LP v. Mutual Pharm. Co., 642 F.3d 1370, 1377 (Fed.

21

Cir. 2011) (affirming summary judgment where the “district court acknowledged the product’s

22

commercial success but properly found that the evidence as a whole did not overcome

23

[defendant’s] strong prima facie case of obviousness.”). I find this is such a case when considering

24
46 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 47 of 48

1

the limited relevant objective evidence of non-obviousness unrelated to the accused product is

2

insufficient to overcome the strong case of obviousness.

3
CONCLUSION

4
5
6

For the above reasons, the Court finds that there is no genuine dispute of material fact and
grants summary judgment as to the following:

7

• Salesforce does not infringe claims 1, 10, 20-21, 23-26, 30, and 40 of the ’482 patent.

8

• Salesforce does not infringe claims 13-17 of the ’111 patent.

9

• Claims 1, 10, 20-21, 23-26, 30, and 40 of the ’482 patent are anticipated by the Popp prior
art reference.

10
11
12
13
14
15
16
17
18
19
20
21
22
23

• Claims 13-17 of the ’111 patent are anticipated by the Popp prior art reference.
• Claims 1, 10, 20-21, 23-26, 30, and 40 of the ’482 patent are rendered obvious by the
Popp prior art reference in view of the Amati prior art reference.
• Claims 13-17 of the ’111 patent are rendered obvious by the Popp prior art reference in
view of the Amati prior art reference.
Accordingly, the Court GRANTS Salesforce’s Motion for Summary Judgment (Dkt. 278)
and DENIES AIT’s Motion for Summary Judgment of No Anticipation (Dkt. 270).
The Court further DENIES as moot the parties’ Joint Motion to Extend Time, (Dkt. 263),
Joint Motion to Withdraw Motions to Strike and to Vacate the Court’s Order Regarding Motions
to Strike, (Dkt. 264), Joint Stipulation Regarding Case Narrowing, (Dkt. 265), Motion to Exclude
Testimony, (Dkt. Nos. 268, 272, 275), Motion to Dismiss, (Dkt. 281), Motion for Hearing, (Dkt.
324), Objection/Appeal to Magistrate Judge Order, (Dkt. 338), Motion to Resolve Discovery
Dispute, (Dkt. 351), Motion for Leave to File Reply, (Dkt. 358), Unopposed Motion to Continue
the Trial Date, (Dkt. 388).

24
47 of 48

Case 3:13-cv-00628-RCJ-CLB Document 408 Filed 09/12/23 Page 48 of 48

1

The Court further GRANTS nunc pro tunc, the parties’ Motions to Seal pleadings, (Dkt.

2

Nos. 269, 271, 273, 276, 279, 282, 293, 295, 297, 301, 306, 314, 316, 319, 322, 333, 339, 346,

3

352, 359, 370, 377, 389, 403, 406).

4

The clerk of the Court shall close this case.

5

IT IS SO ORDERED.

6

Dated this 12th day of September 2023.

7
8
9

_____________________________________
ROBERT C. JONES
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
48 of 48