Anascape, Ltd v. Microsoft Corp. et al

Filing 229

REPLY to Response to Motion re 203 MOTION for Partial Summary Judgment of Non-Infringement of "3-D Graphics Controller" Claims filed by Microsoft Corp.. (Vandenberg, John)

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Anascape, Ltd v. Microsoft Corp. et al Doc. 229 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION ANASCAPE, LTD. Plaintiff, v. MICROSOFT CORPORATION, and NINTENDO OF AMERICA, INC., Defendants. Hon. Ron Clark Civil Action No. 9:06-CV-00158-RC ORAL HEARING REQUESTED MICROSOFT CORPORATION'S REPLY IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT NON-INFRINGEMENT OF "3-D GRAPHICS CONTROLLER" CLAIMS MS'S REPLY ISO MOTION FOR PARTIAL SUMMARY JUDGMENT NON-INFRINGEMENT OF "3-D GRAPHICS CONTROLLER" CLAIMS Dockets.Justia.com I. INTRODUCTION For the "3-D graphics controller" claims, Anascape has failed to meet its burden on any theory of infringement. Anascape does not even address indirect infringement. It fails to offer any of the required evidence for infringement under the doctrine of equivalents. For literal infringement, Anascape concedes that there is no infringement under Microsoft's reading of the Court's claim construction. It offers its own flawed construction, but even under that flawed construction Anascape still fails to meet its burden of showing infringement. Anascape's last resort is to argue that "3-D graphics controller" is not really a claim limitation. This argument was made and lost during claim construction--because it is wrong. Microsoft's motion should be granted in its entirety. II. INDIRECT INFRINGEMENT: ANASCAPE DOES NOT RESPOND Anascape's pleadings charge Microsoft with indirect infringement (see Moving Memo. at 9). Microsoft asked Anascape to voluntarily withdraw those charges, but Anascape did not respond. Now, after requiring Microsoft to file a motion to dispose of those charges, Anascape does not even acknowledge or attempt to support them. The Court should grant summary judgment that Microsoft has not indirectly infringed the 3-D graphics controller claims. III. INFRINGEMENT UNDER THE DOCTRINE OF EQUIVALENTS: ANASCAPE FAILS TO MEET ITS BURDEN Anascape has made no showing of equivalents infringement either. First, Anascape fails to explain why a single sentence--"In the alternative, any asserted claim not found to be literally infringed is infringed under the doctrine of equivalents"--found in its Infringement Contentions is sufficient to preserve its case and meet its burden under the doctrine of equivalents. (See Moving Memo. at 9). As a result, Anascape has waived the doctrine of equivalents. MS'S REPLY ISO MOTION FOR PARTIAL SUMMARY JUDGMENT NON-INFRINGEMENT OF "3-D GRAPHICS CONTROLLER" CLAIMS Page 1 Second, neither its claim charts nor its expert have provided any of the required "particularized testimony from an expert or person skilled in the art that specifically addresse[s] equivalents `on a limitation-by-limitation basis;' explain[s] the insubstantiality of the differences between the patented method and the accused product; or discusse[s] the function, way, result test." Aquatex Indus., Inc. v. Techniche Solutions, 479 F.3d 1320, 1328-29 (Fed. Cir. 2007) (summary judgment of no equivalents infringement because patentee failed to provide required particularized evidence of equivalence). Dr. Howe's unsworn report is not even properly considered on summary judgment. Fed. R. Civ. P. 56(e); Local Rule CV-56(d). The Court should grant summary judgment that Microsoft has not infringed the 3-D graphics controller claims under the doctrine of equivalents. IV. LITERAL INFRINGEMENT: IT IS TOO LATE TO REARGUE CLAIM CONSTRUCTION TO TRY TO PRESERVE AN INFRINGEMENT CASE The remaining, "literal infringement" prong of this Motion turns entirely on a question of law: claim construction. Anascape concedes that Microsoft does not infringe "any claim that includes the `3-D graphics controller term' under Defendants' proposed construction." (Opposing Memo. at 11 n. 10). Unable to meet its burden of showing infringement, Anascape challenges "Defendants' proposed construction," by offering its own reinterpretation of the Court's January 11 Markman Order (Docket No. 182). It then seeks to reopen claim construction to eliminate the "3-D graphics controller" requirement completely. None of these tactics succeeds. A. Anascape's Proposed Claim Construction Is Flawed The requirement that a "3-D graphics controller" be a device held in the user's hand having hand or finger input member(s) capable of movement in six degrees of freedom, such movement to be converted into electrical signals for manipulation of images (graphics) on a MS'S REPLY ISO MOTION FOR PARTIAL SUMMARY JUDGMENT NON-INFRINGEMENT OF "3-D GRAPHICS CONTROLLER" CLAIMS Page 2 display device, which are capable of being perceived by a human flows directly from the Court's Markman Order.1 (See Moving Memo. at 2). It is not, as Anascape suggests, Defendants' "proposed construction." Anascape attempts to reinterpret the Court's construction by proposing that a "3-D graphics controller" is "a controller capable of controlling graphics moving in six degrees of freedom." (Opposing Memo. at 11). This proposed reinterpretation pays lip service to the Court's requirement that "3-D" means "capable of movement in six degrees of freedom" (Markman Order at 11), but completely ignores the Court's statement that "[h]aving 6 DOF means that the input member can move on three linear axes: 1) forward/backward, 2) up/down, 3) left/right, and three rotational axes: 1) yaw, 2) pitch, and 3) roll" (id. at 5). Anascape's proposal deviates from the Markman Order in at least the following respects: It ignores the Court's (and the claims') focus on input members and inputs to the controller. Instead it focuses on the graphics generated by computer software. The '700 Patent indisputably referred to the former, not the latter: The present controllers sense hand inputs on the input member via movement or force influenced sensors, and send information describing rotation or rotational force of the hand operable input member in either direction about three mutually perpendicular bi-directional axes herein referred to as yaw, pitch and roll, (or first, second and third); and information describing linear moment of the hand operable input member along the axes to a host computer or like graphics generation device for control of graphics of a display, thus 3D or six degrees of freedom of movement or force against the input member are converted to input-representative signals for control of graphics images. (Summary of Invention, col. 2, lines 25-36) (emphases added). The Court did not construe the phrase "3-D graphics controller." Rather, it construed the claim terms "3-D" and "controller" and defined the non-claim term "6 DOF." Microsoft believes that its opening brief was clear on this point. However, to the extent Microsoft's brief suggested to the contrary (see Opposing Memo. at 12 n. 3), it was incorrect and unintended. 1 MS'S REPLY ISO MOTION FOR PARTIAL SUMMARY JUDGMENT NON-INFRINGEMENT OF "3-D GRAPHICS CONTROLLER" CLAIMS Page 3 It has no reference to the specific six degrees of freedom enumerated in the Markman Order, i.e., movement along the 1) forward/backward, 2) up/down, 3) left/right axes; and rotation about the: 1) yaw, 2) pitch, and 3) roll axes. It does not require that the controller controls six degrees of freedom, only that it controls graphics moving in six degrees of freedom. This difference is critical. It is common in game software for various graphic objects to perform movements that are generated by the software and not controlled by the player (and, hence, the controller). For example, background or scenery objects may roll down a hill, blow in the wind or spin about with no input from a user (or a controller). Anascape's proposed construction would apparently count these uncontrolled movements towards its "six degrees of freedom." The deviations in Anascape's proposed construction are not surprising. Rather, they are merely the next step in its continuing efforts to retreat from what its patents actually describe. B. Anascape Fails To Demonstrate Infringement Even Under Its Flawed Construction Even under its flawed interpretation of the Court's claim construction, Anascape has failed to provide evidence sufficient to carry its burden. As mentioned above, Dr. Howe's report is unsworn and thus not properly considered on summary judgment. Fed. R. Civ. P. 56(e); Local Rule CV-56(d). Even if considered, Dr. Howe's report is deficient, as pointed out in Microsoft's moving papers. (See Moving Memo. at 6-7). Anascape has not even attempted to explain or correct these deficiencies. Nor has Anascape come forward with any additional evidence to compensate for these deficiencies. C. "3-D Graphics Controller" Always Was And Still Is A Claim Limitation Unable to find safety in its flawed construction of the construction, Anascape's last resort is to argue that "3-D graphics controller" is not really a claim limitation at all. Anascape has MS'S REPLY ISO MOTION FOR PARTIAL SUMMARY JUDGMENT NON-INFRINGEMENT OF "3-D GRAPHICS CONTROLLER" CLAIMS Page 4 made, and lost, this argument before. In its opening Markman brief Anascape argued that the phrase "3-D graphics controller" appeared solely in the preamble of the claims, was not a claim limitation, and therefore did not require construction. (Docket No. 89 at 10-11). Microsoft disagreed and explained why the case law supported its position. (Docket No. 94 at 8). Anascape then reiterated its position in its reply. (Docket No. 103 at 14-15). Despite Anascape's urging, the Court chose to construe the term "3-D." Anascape is now acting as though "3 D" was construed by mistake or as a pointless academic exercise and argues that the Court did not decide this issue in its Markman ruling. It urges the Court to reopen claim construction only weeks before trial and regurgitates its previous briefing. (Opposing Memo. 8-10). Anascape was wrong during claim construction and is still wrong now--the phrase "3-D graphics controller" is a claim limitation. The law is clear: [W]hen reciting additional structure or steps underscored as important by the specification, the preamble may operate as a claim limitation. Corning Glass, 868 F.2d at 1257 (limiting claim scope to "optical waveguides" rather than all optical fibers in light of specification); General Electric Co. v. Nintendo Co., 179 F.3d 1350, 1361-62, 50 USPQ2d 1910, 1918-19 (Fed. Cir. 1999) (limiting claim scope to a "raster scanned display device" rather than all display systems in view of specification's focus on the prior art problem of displaying binary data on a raster scan display device); Rowe, 112 F.3d at 479-80; Applied Materials, 98 F.3d at 1573." Catalina Mktg. Int'l. v. Coolsavings.com, 289 F.3d 801, 808 (Fed. Cir. 2002) (emphasis added); see also Poly-America, L.P. v. GSE Lining Tech., Inc., 383 F.3d 1303, 1310 (Fed. Cir. 2004) (holding that the phrase "blown-film" in the preamble was limiting where the specification was "replete with references to the invention as a `blown-film' liner" including the patent title and "Summary of the Invention"; the preamble language "does not state a purpose or intended use, but rather discloses a fundamental characteristic of the claimed invention"). MS'S REPLY ISO MOTION FOR PARTIAL SUMMARY JUDGMENT NON-INFRINGEMENT OF "3-D GRAPHICS CONTROLLER" CLAIMS Page 5 In addition, the preambles in the asserted claims must be considered limitations because otherwise the claims would not describe a complete invention. On Demand Mach. Corp. v. Ingram Indus., 442 F.3d 1331, 134344 (Fed. Cir. 2006) ("[w]e conclude that the preamble in this case necessarily limits the claims, in that it states the framework of the invention"). Here, the claims recite an assortment of elements (e.g. sensors, potentiometers, and vibration) but recite no associated structure to unify them. Indeed, some claims are a mere recitation of unconnected elements. (See, e.g., claim 13). Absent the preamble, many of the recited elements are not required to be in a controller at all (let alone a single controller). Other claims require the elements to be connected to the same circuitry. (See, e.g., claim 12). However, separate and independent controllers connected to the same gaming console, or separate devices connected to the same computer network are connected to the same circuitry. Even though claim 15 recites a housing, for example, many of the elements recited in the body have no claimed connection to that housing. (See, e.g., independent first, second and third button sensors and the sheet). Only the preamble actually requires that they be combined in a single 3D graphics controller. Thus, the preamble is necessary to provide a structural framework for the collection of elements recited in the claim body, i.e., the elements must be contained with a single "3-D graphics controller." V. CONCLUSION For the foregoing reasons the Court should grant partial summary judgment that Microsoft has not infringed claims 12-15 and 32-33 of the `700 Patent (1) literally, (2) under the doctrine of equivalents, (3) under Sections 271 (b) or (c) (indirect infringement), or (4) in any other manner. Dated: March 18, 2008 By: Respectfully submitted, /s/ John D. Vandenberg J. Christopher Carraway (admitted pro hac vice) christopher.carraway@klarquist.com Page 6 MS'S REPLY ISO MOTION FOR PARTIAL SUMMARY JUDGMENT NON-INFRINGEMENT OF "3-D GRAPHICS CONTROLLER" CLAIMS Joseph T. Jakubek (admitted pro hac vice) joseph.jakubek@klarquist.com Stephen J. Joncus (admitted pro hac vice) stephen.joncus@klarquist.com Richard D. Mc Leod (Bar No. 24026836) rick.mcleod@klarquist.com Derrick W. Toddy (admitted pro hac vice) derrick.toddy@klarquist.com John D. Vandenberg (admitted pro hac vice) john.vandenberg@klarquist.com KLARQUIST SPARKMAN, LLP 121 S.W. Salmon Street, Suite 1600 Portland, Oregon 97204 Telephone: 503-595-5300 J. Thad Heartfield (Bar No. 09346800) thad@jth-law.com Law Offices of J. Thad Heartfield 2195 Dowlen Road Beaumont, Texas 77706 Telephone: 409-866-3318 Facsimile: 409-866-5789 Clayton E Dark Jr. (Bar No. 05384500) clay.dark@yahoo.com Clayton E Dark Jr., Law Office 207 E Frank Ave # 100 Lufkin, TX 75901 Telephone: 936-637-1733 Stephen McGrath, Esq. (admitted pro hac vice) MICROSOFT CORPORATION One Microsoft Way, Building 8 Redmond, Washington 98052-6399 Telephone: 425-882-8080 Facsimile: 425-706-7329 Attorneys for Defendant Microsoft Corporation MS'S REPLY ISO MOTION FOR PARTIAL SUMMARY JUDGMENT NON-INFRINGEMENT OF "3-D GRAPHICS CONTROLLER" CLAIMS Page 7 CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served electronically on all counsel who have consented to electronic service in compliance with Local Rule CV-5(a)(7)(C). Pursuant to Fed. R. Civ. P. 5 (d) and Local CV-f, all other counsel of record not deemed to have consented to electronic service were served with a true and correct copy of the foregoing by certified mail, return receipt requested, on this the 18th day of March, 2008. By:/s/ John D. Vandenberg__________________ CERTIFICATE OF SERVICE

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