Traxcell Technologies, LLC v. Huawei Technologies USA Inc.

Filing 394

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 386 Report and Recommendations. Signed by District Judge Rodney Gilstrap on 7/9/2019. (nkl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
TRAXCELL TECHNOLOGIES, LLC,
Plaintiff,
v.
HUAWEI TECHNOLOGIES USA
INC.,

NOKIA SOLUTIONS AND
NETWORKS US LLC ET AL,
Defendants.

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Case No. 2:17-cv-000042-RWS-RSP
LEAD CASE

Case No. 2:17-cv-00044-RWS-RSP

ORDER
Before the Court are Plaintiff Traxcell Technologies, LLC’s (hereinafter “Plaintiff”)
Objections (Dkt. No. 389) to the Magistrate Judge’s Report and Recommendation (Dkt.
No. 386), which recommended that summary judgment be granted for Plaintiff’s claims of
infringement against Defendants Nokia Solutions and Networks US LLC and Nokia
Solutions and Networks Oy (collectively “Nokia”). After consideration of Plaintiff’s
Objections and the Magistrate Judge’s Report and Recommendation, the Court agrees with
the reasoning provided within the Report and Recommendation and therefore
OVERRULES Plaintiff’s Objections.
I.

APPLICABLE LAW

For dispositive matters, a party may serve and file specific written objections to a
Magistrate Judge’s proposed findings and recommendations. Fed. R. Civ. P. 72(b)(2). “The
district judge must determine de novo any part of the magistrate judge’s disposition that
has been properly objected to.” Fed. R. Civ. P. 72(b)(3).
For non-dispositive matters, a party may serve and file objections to a Magistrate
Judge’s order within 14 days after being served a copy. Fed. R. Civ. P. 72(a). “A party may
not assign as error a defect in the order not timely objected to.” Id.
II.

ANALYSIS
The Claim Construction Order provides constructions for two terms that are critical

to resolving Defendants’ Summary Judgment Motion: (1) that “first computer” and
“computer” mean “first single computer” and “single computer” respectively; and (2) that
“location” means “location that is not merely a position in a grid pattern.” (Dkt. No. 261 at
18, 23.) The Claim Construction Order (Dkt. No. 261) was entered on January 7, 2019, yet
Plaintiff filed no objections to the Claim Construction Order. Now, Plaintiff raises
challenges against the Magistrate Judge’s Claim Construction Order, but this is improper.
Because “[a] party may not assign as error a defect in the order not timely objected to,”
Fed. R. Civ. P. 72(a), the Court concludes that Plaintiff has waived its untimely arguments
(Dkt. No. 389 at 5–8) against the Claim Construction Order.
Plaintiff argues that “the Report and Recommendation does not address Plaintiff’s
evidence of how Defendants’ systems and methods determine location.” (Dkt. No. 389 at
2.) Plaintiff states that its “allegations of how Nokia’s systems use location are set out in

pages 16-18 of the Summary Judgment Response, and are not addressed in the Court’s
Report. (Id.) The allegations that Plaintiff refers to are related to the accused products'
use of key performance indicators (KPIs) to indicate the performance of the network.
(Id. at 3.) However, the Report and Recommendation did in fact address these issues,
and the Court finds Plaintiff’s objections unpersuasive as Plaintiff fails to show how the
accused products provide “location that is not merely a position in a grid pattern.”
The Report and Recommendation discussed the use of KPIs in the accused products
and acknowledged testimony from Defendants’ expert that these KPIs provided
information for “50-meter-by-50-meter bins at the lowest level of granularity.” (Dkt. No.
386 at 8 (citing Dkt. No. 298-7 at 135:3–17).) Plaintiff has not provided any evidence to
rebut this testimony and instead points to a statement that “[t]he KPIs are a smaller subset
of all the cell-level KPIs we collect.” (Dkt. No. 389 at 3.) This statement does not rebut the
evidence that the KPIs provide information for “50-meter-by-50-meter bins at the lowest
level of granularity.” The Report and Recommendation acknowledged the admission by
Plaintiff’s expert that a 50-meter-by-50-meter bin would be a grid. (Dkt. No. 386 at 9
(citing Dkt. No. 337-2 at 63:2–10 (“[Y]ou have a 50-by-50-meter square area within a
particular cell and that would be a particular grid.”)).) Thus, Plaintiff has not shown that
KPIs provide “location that is not merely a position in a grid pattern,” and Plaintiff has
provided no other evidence to suggest that the accused products utilize location as
construed by the Court.
Plaintiff also attempts to analogize the limitation of location that is not merely a
position on a grid to a fire department needing to know where to go to put out a fire. (Dkt.

No. 389.) However, this analogy fails. The analogy attempts to evade the Court’s previous
construction of the location limitation and to show the use of location generally. The
analogy does not address whether the location “is not merely a position in a grid pattern,”
and Plaintiff does not address that limitation in its Objections whatsoever.
Additionally, the Report and Recommendation concluded that Plaintiff has not
provided any evidence to show that the geolocation system’s KPIs are tied to the
performance information of specific phones rather than a geographic area. (Dkt. No. 386
at 9.) Plaintiff does not discuss this in its Objections, and its analogy to “needing to know
where to go to put out a fire” does not address this issue either. As acknowledged in the
Report and Recommendation, “Defendants provided evidence that the KPIs are averaged
over a period of time and that they do not provide any location information about a
particular handset,” (Dkt. No. 298-8 at ¶ 139) and Plaintiff provided no evidence to rebut
this. Because the location term is present in all of the asserted claims, summary judgment
is appropriate for all asserted claims.
The Report and Recommendation also determined that summary judgment was
appropriate for all claims other than Claim 6 of the ’024 Patent because the accused
products do not possess a single first computer or a single computer that satisfies the other
limitations of the asserted claims. (Dkt. No. 386 at 11–12.) The Court addressed
Plaintiffs' argument that a GUI module constituted a single computer and rejected the
argument. (Id.) Plaintiff now objects on the grounds that the GUI module meets all of
the limitations of Claim 6 of the ’024 Patent. (Dkt. No. 389 at 4–5.) However, that claim
does not include a limitation for “computer” or “first computer,” and Plaintiff has

otherwise failed to address whether the other asserted claims include a “computer” or “first
computer” as construed by the Court. Accordingly, summary judgment is appropriate for
all asserted claims other than Claim 6 of the ’024 Patent on this additional ground.
Plaintiff argues that the Report and Recommendation erred in concluding that
prosecution history estoppel applies and therefore concludes that the doctrine of
equivalents is available to Plaintiff. However, the Court concludes that Plaintiff waived
this argument by not objecting to the Claim Construction Order. That Order clearly reached
its constructions for the “first computer” and “computer” terms based on prosecution
history estoppel (Dkt. No. 261 at 16–18), and Plaintiff did not file any objection to the
Claim Construction Order. For non-dispositive issues such as claim construction, “a party
may not assign as error a defect in the order not timely objected to.” Fed. R. Civ. P. 72(a).
Even if Plaintiff did not waive these arguments, the Report and Recommendation discussed
why prosecution history estoppel applied (Dkt. No. 386 at 13–14), making the doctrine of
equivalents unavailable. The Court agrees with this reasoning.1
Accordingly, the Court OVERRULES Plaintiff’s Objections and ADOPTS
the Magistrate Judge’s Report and Recommendations. It is therefore ORDERED
that Defendants’ Motion for Summary Judgment of Non-Infringement is GRANTED.

So Ordered this
Jul 9, 2019

1

“‘Unmistakable assertions made by the applicant to the . . . PTO . . . in support of patentability, whether or not
required to secure allowance of the claim, . . . may operate to preclude the patentee from asserting equivalency.’”
Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1252 (Fed. Cir. 2000) (quoting Texas Instruments Inc. v.
United States Int'l Trade Comm'n, 988 F.2d 1165, 1174 (Fed.Cir.1993)).