Kewazinga Corp. v. Google LLC

Filing 323

OPINION AND ORDER re: 267 MOTION for Summary Judgment Kewazinga Corp.'s Notice of Motion for Summary Judgment. filed by Kewazinga Corp., 249 MOTION for Summary Judgment Google LLC's Notice of Motion for Summary Ju dgment of Noninfringement. filed by Google LLC. For the reasons above, Defendant's motion for summary judgment is granted in part and denied in part. Summary judgment is granted as to Claims 1 and 5 of the '325 Patent and denied as to all other claims. Plaintiff's motion for summary judgment is granted on the defense of failure to mark, and denied as to all other claims and defenses. The Clerk of Court is respectfully directed to close the motions at Dkt. Nos. 249 and 267. (Signed by Judge Lorna G. Schofield on 9/28/2023) (ate)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
KEWAZINGA CORPORATION,
:
Plaintiff,
:
:
-against:
:
GOOGLE LLC,
:
Defendant. :
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20 Civ. 1106 (LGS)
OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:
In this case, Plaintiff Kewazinga Corporation (“Kewazinga”) asserts infringement of three
patents: U.S. Patent No. 9,055,234 (“Navigable Telepresence Method and System”) (the “’234
Patent”), U.S. Patent No. 6,522,325 (“Navigable Telepresence Method and System Utilizing an
Array of Cameras”) (the “’325 Patent”) and U.S. Patent No. 6,535,226 (“Navigable Telepresence
Method and System Utilizing an Array of Cameras”) (the “’226 Patent”) (collectively, the
“Kewazinga Patents”). Kewazinga alleges that Defendant Google LLC (“Google”) infringes
these patents through Google Street View (“Street View”), a service that allows users to explore
virtually different locations. Following discovery, the parties cross-move for summary judgment.
For the reasons below, Defendant’s motion for summary judgment is granted in part and denied
in part. Plaintiff’s motion is granted in part and denied in part.
I.

BACKGROUND
Familiarity with the underlying facts and procedural history is assumed. See Kewazinga

Corp. v. Google LLC, No. 20 Civ. 1106, 2021 WL 466877 (S.D.N.Y. Feb. 9, 2021); Kewazinga
Corp. v. Google LLC, No. 20 Civ. 1106, 2021 WL 3287415 (S.D.N.Y. July 30, 2021) (claim
construction opinion) (hereafter “Kewazinga II”). The following facts are drawn from the
parties’ evidentiary submissions in connection with the motion and are undisputed, unless
otherwise indicated. See Frost v. N.Y.C. Police Dep’t, 980 F.3d 231, 242 (2d Cir. 2020).

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The Kewazinga Patents claim telepresence methods and systems that allow multiple users
to navigate displays of an environment simultaneously and independently. The ’325 Patent,
issued on February 18, 2003, claims a telepresence system that provides multiple users displays
of an environment simultaneously and independently. The ’226 Patent, issued on March 18,
2003, claims a telepresence method and system that gives users “the ability to navigate through
an array of cameras capturing an environment.” The ’234 Patent, issued on June 9, 2015, claims
methods and systems that “permit one or more users to navigate through imagery of an
environment.” The Kewazinga Patents expired on April 1, 2019.
Street View is a product offered by Defendant that captures photos from locations around
the world, processes them into panoramas and allows users to view the images on the internet. A
vehicle-mounted camera system called a rosette contains a tightly packed cluster of cameras that
captures overlapping images used to create the panoramas. The parties dispute whether the
vehicle on which the rosette is mounted is in motion while the photos are taken. They further
dispute whether the photos are taken by the rosette at predetermined locations, and Plaintiff offers
evidence that the photos are taken at predetermined distance intervals, which it argues qualifies as
taking photos at predetermined locations. After capturing the images, Google processes the
photos, including stitching together the images to create a panorama viewable to users. Users
then can select a location on a map to view images taken from that location. Users also can move
from location to location. When users do so, Street View generates a transition animation
between panoramas using a process called an alpha blend.
On February 7, 2020, Kewazinga filed this suit. On July 30, 2021, Kewazinga II
construed two disputed claim terms. See Kewazinga II, 2021 WL 3287415, at *1. It construed
“array of cameras” to mean “a camera configuration wherein the configuration can be created
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over time by positioning cameras in relation to each other,” and construed “mosaicing” to mean
“creating imagery assembled from a plurality of images, or portions thereof, including an
alignment process and a composition process.” Id. On October 28, 2021, Kewazinga made its
final election of the claims it asserts under the Kewazinga Patents, namely claims 3, 6, 16, 18, 19
and 21 of the ’234 Patent; claims 1, 5, 10, 14, 15 and 29 of the ’325 Patent; and claims 55 and
119 of the ’226 Patent.
II.

STANDARD
The Federal Circuit has exclusive appellate jurisdiction of cases relating to patents. See

28 U.S.C. § 1295(a)(1). When reviewing district court decisions regarding summary judgment,
the Federal Circuit applies its own law on patent-specific issues and otherwise looks to the law of
the regional circuit, here the Second Circuit. See SIMO Holdings Inc. v. Hong Kong uCloudlink
Network Tech. Ltd., 983 F.3d 1367, 1380 (Fed. Cir. 2021).
Summary judgment is appropriate if “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Roberts
v. Genting N.Y. LLC, 68 F.4th 81, 88 (2d Cir. 2023). “An issue of fact is genuine if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Frost, 980 F.3d at
242.1 “Only disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); accord Saleem v. Corp. Transp. Grp., Ltd., 854 F.3d 131, 148 (2d Cir.
2017). In evaluating a motion for summary judgment, a court must “construe the record evidence
in the light most favorable to the non-moving party and draw all reasonable inferences in its

1

Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases,
footnotes and citations are omitted.
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favor.” Torcivia v. Suffolk Cnty., 17 F.4th 342, 354 (2d Cir. 2021).
“Infringement is a question of fact. . . . To prove literal infringement, the patentee must
show that the accused device contains each and every limitation of the asserted claims.” SIMO
Holdings Inc., 983 F.3d at 1380. “[T]o satisfy the summary judgment standard, a patentee’s
expert must set forth the factual foundation for his infringement opinion in sufficient detail for the
court to be certain that features of the accused product would support a finding of infringement.”
Id. at 1381. “Under the doctrine of equivalents, a product or process that does not literally
infringe upon the express terms of a patent claim may nonetheless be found to infringe if there is
equivalence between the elements of the accused product or process and the claimed elements of
the patented invention.” Kyocera Senco Indus. Tools Inc. v. Int’l Trade Comm’n, 22 F.4th 1369,
1375 n.2 (Fed. Cir. 2022).
III.

DISCUSSION
The parties cross-move for summary judgment. Defendant moves for summary judgment

on all asserted claims under the Kewazinga Patents. Plaintiff moves for partial summary
judgment on infringement of Claim 6 of the ’234 Patent. Plaintiff also moves for partial
summary judgment on various defenses and arguments that Defendant may assert at trial. For the
reasons below, Defendant’s motion for summary judgment is granted in part and denied in part,
and Plaintiff’s motion for summary judgment is granted in part and denied in part.
A.

“Array of Cameras”

Defendant moves for summary judgment on all claims asserted in the ’226 and ’325
Patents because those claims incorporate the concept of an “array of cameras,” while Street View
does not. As construed, an array of cameras is “a camera configuration wherein the configuration
can be created over time by positioning cameras in relation to each other.” Kewazinga II, 2021
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WL 3287415, at *1. Defendant’s motion is denied because Plaintiff proffers sufficient evidence
for a reasonable jury to conclude that Street View uses an array of cameras.
Plaintiff’s expert opines, with sufficient factual basis, that Street View rosettes capture
images at regular intervals while traveling and that these intervals (and the consistent camera
angle of each camera on the rosette between each sequential capture) qualify as positioning the
cameras in relation to each other. Because Defendant’s motion for summary judgment is denied
with respect to literal infringement, this decision does not address whether Plaintiff could prove
infringement under the doctrine of equivalents.
Defendant’s arguments that no reasonable jury could find literal infringement are
unpersuasive. Defendant argues first that Street View does not incorporate an “array of
cameras,” because the cameras used are mounted on a “continuously moving vehicle.”
Kewazinga II states that the fact that an array of cameras requires the positioning of cameras in
relation to each other “helps dispel the notion that the ’325 and ’226 Patents claim the use of
‘moving cameras,’ rather than moving arrays of cameras.” Kewazinga II, 2021 WL 3287415, at
*4. Kewazinga II further states that the specifications of the ’325 Patent distinguish it from “a
method or system in which ‘moving cameras’ would be used -- specifically, ‘a moving vehicle
carrying the cameras.’” Id. Defendant argues that this language mandates summary judgment
because Street View uses cameras mounted on top of a moving vehicle.
This argument fails, because the references to cameras on a moving vehicle explain what
it means to position cameras in relation to each other. Kewazinga II states, “The act of
‘positioning’ cameras suggests that a camera cannot be continuously moving and, instead, must
be placed with respect to the other cameras with which it comprises an array.” Id. This
construction distinguishes the systems claimed by the Kewazinga Patents from one in which
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cameras move in relation to each other at the time the user views the images captured by the
cameras. Even though Street View’s cameras are mounted on a moving vehicle, a jury could find
they are positioned in relation to each other, the relevant inquiry. Defendant’s argument that any
system using moving cameras is outside the scope of the Kewazinga Patents also fails because the
construction that an array can be created “over time” explicitly contemplates “the concept of
movable arrays.” Id. Kewazinga II rejected Defendant’s proposed construction requiring that the
cameras be “fixed” because “it suggest[ed], contrary to the explicit teachings of the [Kewazinga
Patents], that an ‘array of cameras’ cannot be moved.” Id. at *3.
Defendant next argues that Street View does not infringe because it uses a single camera
rosette to capture images, while Kewazinga II requires the use of more than one camera. The
camera rosette consists of a tightly packed cluster of multiple cameras. Images taken at one
location from the cameras in the rosette are stitched together into panoramas. The rosette is then
moved progressively throughout an environment to capture different images. A fact-finder could
reasonably find that this system -- a set of multiple cameras, moved over time -- constitutes an
array of cameras. Kewazinga II does not preclude this view, because it refers to an array of
cameras as “a camera configuration wherein the configuration can be created over time by
positioning cameras in relation to each other.” Id. at *1.
Defendant also argues that Street View does not place or position cameras with respect to
each other, because the cameras are in continuous motion while capturing images and because
their positions are not predetermined prior to capture. Instead, images are processed and their
position relative to each other is determined after the fact. With respect to motion, Plaintiff
provides evidence that the distance each individual camera travels while taking a still image is de
minimis, so as to allow the factfinder to conclude that the cameras are “placed” or “positioned” in
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certain locations. With respect to the lack of predetermined capture locations, Plaintiff provides
sufficient evidence of algorithmically-preset capture intervals, determined by the velocity at
which the vehicle carrying the rosette is moving. The factfinder could reasonably determine that
Defendant’s creation of these pre-set intervals, effectuated through the automatic process of
periodic capture, is sufficient to make the cameras “positioned” as required to form an array.
Last, Defendant moves for summary judgment with respect to Claim 29 of the ’325 Patent
for an additional reason. Claim 29 claims a method of providing views of a remote environment
to a user by mixing images captured from two different arrays of cameras and displaying the
images from the first array, then the mixed image and then images from the second array, in that
sequence. Defendant argues there is no evidence that any one user was provided images captured
by two or more Street View rosettes during the life of the Kewazinga Patents. However, Plaintiff
offers evidence that Defendant transitioned from R7 to Herschel rosettes during the lifetime of
the ’325 Patent, and that users of Street View today can navigate between panoramas captured
years apart. Defendant offers no evidence that users during the period of alleged infringement
were not similarly shown images captured at different times and by different rosettes. Drawing
all reasonable inferences in favor of Plaintiff as the non-moving party, a reasonable jury could
conclude that a user during the life of the ’325 patent was provided imagery captured from two
different rosettes, precluding summary judgment.
B.

“Mosaicing”

Defendant moves for summary judgment on Claims 1 and 5 of the ’325 Patent and all
claims asserted under the ’234 Patent because these claims incorporate the concept of mosaicing,
and Defendant asserts that Street View does not. As construed, mosaicing is “creating imagery
assembled from a plurality of images, or portions thereof, including an alignment process and a
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composition process.” Kewazinga II, 2021 WL 3287415, at *1. Plaintiff offers two theories for
how Street View performs “mosaicing”: first, in the transition animation between panoramas and,
second, in the creation of the panoramas themselves. The undisputed facts show that transition
animations are not “mosaicing” while Plaintiff offers sufficient evidence for a reasonable jury to
conclude that the creation of the panoramas is “mosaicing.” Summary judgment is therefore
granted on Claims 1 and 5 of the ’325 Patent, which require the transition animations to qualify
as “mosaicing,” and denied as to the claims under the ’234 Patent.
Plaintiff does not offer sufficient evidence that Street View’s transition animations create
imagery using an alignment process. Plaintiff notes that Street View panoramas are aligned to a
common coordinate system and direction and that when transitioning between two views, Street
View maintains a user’s perspective. Plaintiff argues that the selection of the portions of the
initial panorama and the destination panorama that maintain the same viewing angle incorporates
the coordinate system and direction, and that this constitutes an alignment process. This
argument fails because “mosaicing” already incorporates the idea that imagery may be created
from “portions” of other images. See id. What Plaintiff identifies as an alignment process is only
the process used to select the relevant “portions” of images, rather than the alignment process
used to “creat[e] imagery” from them. See id. U.S. Patent No. 5,649,032 (the “Burt Patent”),
which the ’325 and ’234 Patents incorporate by reference, confirms the understanding that the
selection of the portions of the images to be aligned does not constitute an alignment process.
The Burt Patent refers to “the image alignment process automatically align[ing] one input image
to another input image.” This assumes that the input images are already selected, prior to the
alignment process. Plaintiff also notes that the Burt Patent refers to aligning images using “an
arbitrary reference coordinate system,” and argues that the creation of the transition animations
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uses an alignment process because the selected images are aligned to geographic coordinates and
directions, to preserve a user’s viewpoint. However, Plaintiff’s argument is irrelevant, because
the Burt Patent refers to a coordinate system within the images being aligned, rather than a
coordinate system to place the images in relation to each other.
Plaintiff identifies no alignment process used in the transition animations, meaning that
they do not employ “mosaicing.” Because Plaintiff relies only on the transition imagery to satisfy
the mosaic limitation on Claims 1 and 5 of the ’325 Patent, summary judgment is granted to
Defendant on those claims.
Summary judgment is denied to the claims asserted under the ’234 Patent. Defendant
argues that its creation of individual panoramas does not constitute “mosaicing” for purposes of
the claims asserted under the ’234 Patent because the individual panoramas are not created in
response to user inputs. But Defendant does not offer support for the idea that the receipt of user
inputs must pre-date the generation of mosaic imagery. Claim 1 of the ’234 Patent, which is
incorporated into other claims that Plaintiff asserts, lists components of the system without the
“and then” language added by Defendant in its briefing. Instead, Claim 1 of the ’234 Patent lists
various components of the system without any temporal language, counseling against creating
this implied requirement.
Defendant further argues that its creation of individual panoramas is not “mosaicing”
because a Street View panorama is not mosaic imagery of multiple locations. This argument also
fails. Claim 1 and Claim 13 (which is also incorporated into claims asserted under the ’234
Patent) do not incorporate a requirement that mosaic imagery must comprise multiple locations.
If anything, they support the opposite reading: Claim 1 describes “[a] system for providing . . . [a]
view of multiple locations” in an environment, in part by storing “electronic imagery of
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progressively different perspectives of the environment” and Claim 13 describes “mosaic imagery
of progressively different locations,” suggesting such imagery corresponds to each location.
Defendant’s motion is therefore denied as to Plaintiff’s claims under the ’234 Patent.
C.

Plaintiff’s Motion for Summary Judgment
1.

Claim 6 of the ’234 Patent

Plaintiff seeks summary judgment that Street View infringes Claim 6 of the ’234 Patent.
Claim 6 incorporates the system of the preceding Claim 1 and adds the further element that:
one or more processing elements are further configured to cause imagery of two or more
different perspectives along the first view to be tweened to smooth navigation of the first
user along the first view; and in response to first user inputs, provide the tweened imagery
to the first user interface device.
Summary judgment is denied because Defendant offers expert testimony as to noninfringement of various elements of Claim 6. Even assuming the elements of Claim 1 were
undisputed (rather than “largely undisputed” as Plaintiff characterizes them), defense expert Dr.
Lastra opined, among other things, that Street View does not qualify as a processing element, that
the transition imagery is not smooth, and that the imagery is not provided to the user interface
device. This is sufficient to create a genuine dispute as to infringement, which precludes
summary judgment.
2.

Invalidity

Plaintiff moves for summary judgment on Google’s invalidity defense based on the lack
of written descriptions of an “array of cameras” in the ’226 and ’325 Patents. A patent must
contain “a written description of the invention . . . in such full, clear, concise, and exact terms as
to enable any person skilled in the art to which it pertains . . . to make and use the same.” 35
U.S.C. § 112(a). Defendant alleges that the ’226 and ’325 Patents are invalid because they do not
sufficiently disclose that an array of cameras can consist of a single camera moved and reused
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over time. Summary judgment is denied because genuine disputes of material fact exist as to the
invalidity defense.
Plaintiff’s motion for summary judgment of no invalidity on this basis is denied because
Defendant offers expert testimony in support of its argument that a reasonable jury could credit.
Defendant’s expert, Dr. Lastra, opines that a person skilled in the art (“POSITA”) would not
understand that the Kewazinga Patents describe a system which uses a moving camera. A jury
could credit his testimony regarding silence in the Kewazinga Patents as to the movement and reuse of a single camera and conclude the Kewazinga Patents fail to adequately disclose the
meaning of an array of cameras, as construed in this litigation.
Plaintiff’s remaining argument regarding the decision of the Patent Trial and Appeal
Board as to the validity of the ’234 Patent fails. It fails because that proceeding concerned a
different patent than the ones which Defendant argues lack a written description and, in any
event, explicitly declined to address any argument based on lack of a written description. See
Noelle v. Lederman, 355 F.3d 1343, 1349 (Fed. Cir. 2004) (“[E]ach case involving the issue of
written description must be decided on its own facts. Thus, the precedential value of cases in this
area is extremely limited.”).
3.

Anticipation

Plaintiff moves for summary judgment on the lack of anticipation of the ’325 and ’234
Patents by the Taylor System, a cinematographic process. Summary judgment is denied because
genuine disputes of material fact exist as to anticipation.
A patent can be invalid if it is anticipated by a prior art, which must “disclose[] all of the
limitations of the claim arranged or combined in the same way as in the claim.” Incept LLC v.
Palette Life Sciences, Inc., 77 F.4th 1366, 1371 (Fed. Cir. 2023). “Anticipation is a question of
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fact.” Id. Defendant alleges that the ’325 and ’234 Patents were anticipated by the Taylor
System, a cinematographic system for producing virtual camera motion. The Taylor System, as
defined by Defendant, consists of U.S. Patent No. 5,659,323, an article in the September 1996
issue of American Cinematographer that describes the system and its application in film, and the
knowledge of the developers of the system.
Plaintiff’s motion for summary judgment of no invalidity based on anticipation is denied
because Defendant offers expert testimony as to how the Taylor System implements “mosaicing”
and “tweening,” two limitations that Plaintiff claims the Taylor System does not disclose. Dr.
Lastra opined that these processes are encompassed by the description of “morphing” images in
the Taylor System and, in any event, would be obvious to a POSITA. Plaintiff argues that
Defendant and Dr. Lastra rely on other, external tools that are not part of the Taylor System, but
Dr. Lastra opined that the Taylor System incorporates third-party morphing tools as part of the
system it describes and that a POSITA would be aware of this. A jury could reasonably credit
this testimony and find that the Taylor System anticipates the ’325 and ’234 Patents, meaning
summary judgment is denied.
4.

Failure to Mark

Plaintiff moves for summary judgment on its obligation to mark products under 35 U.S.C.
§ 287 (“Section 287”). Summary judgment is granted because Plaintiff provided sufficient notice
under Section 287 as to the ’226 and ’325 Patents, and because there is not a genuine dispute of
material fact regarding whether Plaintiff made or sold products covered by the ’234 Patent after
the ’234 Patent’s issuance.
Under Section 287, if the patent holder provides an accused infringer with actual notice of
infringement, the patent holder can recover damages for acts of infringement following that
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notice, even if the products at issue were never marked. Section 287 states that “[f]iling of an
action for infringement shall constitute such notice.” 35 U.S.C. § 287(a). Defendant does not
dispute that Plaintiff filed an action against Defendant in Delaware in 2013 alleging infringement
of the ’226 and ’325 Patents. While Defendant argues that the action cannot constitute notice
under Section 287 because it was later dismissed for failure to make proper service, the statutory
language says nothing of service or the ultimate resolution of the action. Cf. CFL Techs. LLC v.
Gen. Elec. Co., 2021 WL 1105335, *8-10 (D. Del. 2021) (ruling that the filing of an infringement
suit, which was later dismissed with prejudice, was sufficient actual notice for purposes of
§ 287(a) in a later action); New Medium v. Barco, No. 5 Civ. 5620, 2007 WL 2403208, at *5
(N.D. Ill. Aug. 15, 2007) (“Plaintiffs are correct . . . that the plain language of § 287(a) states that
a purported infringer receives actual notice on the date that an action is filed rather than the date
on which the purported infringer receives service of process.”). While there could be a question
of whether proper service is needed for notice under Section 287 if the accused infringer never
learns of the infringement action, that question is not presented here; the parties do not dispute
that Defendant knew about the 2013 action at the time. Accordingly, notice was sufficient under
Section 287. Plaintiff’s motion for summary judgment is granted as to marking for the ’226 and
’325 Patents.
As to the ’234 Patent, Section 287 does not limit damages if the patent holder did not
make or sell a patented article, regardless of whether any notice was provided. See Arctic Cat
Inc. v. Bombardier Recreational Prods. Inc., 950 F.3d 860, 864 (Fed. Cir. 2020). Plaintiff asserts
that it did not make or sell any product covered by the ’234 Patent after the ’234 Patent was
issued, and Defendant does not allege the contrary. Accordingly, Plaintiff had no obligation to
mark or provide notice regarding the ’234 Patent. Summary judgment thus is also granted as to
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marking for the ’234 Patent.
5.

Plaintiff’s Remaining Requests for Summary Judgment

At a conference held on September 21, 2022, regarding the parties’ motions, Plaintiff was
apprised that summary judgment is not granted on discrete issues or theories that are not
dispositive of a claim or defense. Plaintiff putatively moves for summary judgment on the
following issues: that Defendant not be permitted to assert prior art not identified in its Final
Election of Asserted Art and that the Kewazinga Patents did not disclaim the use of cameras on a
moving vehicle.
Neither of these arguments would fully resolve a claim or defense. First, Defendant’s
alleged failure to comply with the numerical limit on the number of prior art references it was
permitted by the Case Management Plan and Scheduling Order would leave eighteen valid
assertions of prior art. In accordance with the Case Management Plan, Defendant is limited to
grounds for invalidity contained in its Final Election of Asserted Prior Art. However, Plaintiff
provides no basis to grant summary judgment on any one prior art reference.
Second, any disclaimer of moving cameras or lack thereof goes to the scope of the
Kewazinga Patents, addressed previously in Kewazinga II and again in the preceding discussion
of Defendant’s motion. This is functionally an argument against Defendant’s motion for
summary judgment. Accordingly, summary judgment is denied on these grounds.
IV.

CONCLUSION
For the reasons above, Defendant’s motion for summary judgment is granted in part and

denied in part. Summary judgment is granted as to Claims 1 and 5 of the ’325 Patent and denied

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as to all other claims. Plaintiff’s motion for summary judgment is granted on the defense of
failure to mark, and denied as to all other claims and defenses.
The Clerk of Court is respectfully directed to close the motions at Dkt. Nos. 249 and 267.
Dated: September 28, 2023
New York, New York

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