ARSUS v. Firmage
Filing
122
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT: IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment is GRANTED, and Plaintiff's Complaint is dismissed with prejudice. Signed by Judge Dee Benson on 11/15/2018. (mas)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
ARSUS, LLC, a Utah entity,
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT
Plaintiff,
v.
JOHN H. FIRMAGE, INC. dba BMW of
Murray, a Utah entity,
Case No. 1:17-cv-00125-DB
U.S. District Judge Dee Benson
Defendant.
Before the Court is Defendant’s Motion for Summary Judgment (Dkt. No. 40) of no
infringement, filed on January 30, 2018. On March 16, 2018, Plaintiff filed a timely
memorandum in opposition to Defendant’s motion. (Dkt. No. 58.) On April 6, 2018, Defendant
submitted a reply to Plaintff’s opposition. (Dkt. No. 65.) On October 25, 2018, the Court heard
oral argument on the motions. At the hearing, Plaintiff was represented by Todd E. Zenger and
Patrick Bright, while Defendant was represented by Brent O. Hatch, Joseph P. Lavelle, and
Andrew N. Stein. At the conclusion of the hearing, the Court granted Defendant’s Motion for
Summary Judgment based on the parties’ written and oral arguments and the relevant law, with a
written order to follow. The Court now enters the following order memorializing the Court’s
ruling GRANTING Defendant’s Motion for Summary Judgment.
BACKGROUND
Defendant sells and distributes automobiles that are manufactured by Bayerische
Motoren Werke of Germany (“BMW”) and imported by BMW of North America. (Dkt. No. 2,
Compl. ¶ 6.) Some of these vehicles include BMW’s Active Driving Assistance Plus (“ADAP”)
features, which Plaintiff alleges prevent vehicles from being steered beyond a rollover threshold
of the vehicle. (Id. ¶¶ 6-8.) Specifically, Plaintiff asserts that “when ADAP is operative the
vehicle automatically imposes a steering angle limitation so that the vehicle is prevented from
being steered beyond a rollover threshold of the vehicle.” (Id. ¶ 9.) Accordingly, Plaintiff
argues that the vehicles sold by Defendant infringe Plaintiff’s claims 1 to 4 of the ‘989 patent,
and claims 1 to 5, 7 to 11, 13 to 18, 20 and 21 of the ‘103 patent (collectively Plaintiff’s
“asserted claims”); these claims include a “rollover prevention apparatus that allows a vehicle to
be steered within a non-rollover steering range of motion of said vehicle but prevents said
vehicle from being steered beyond a rollover threshold of said vehicle,” as well as a “vehicle
having a first mode and a second mode and adapted such that when said vehicle is in said first
mode, said vehicle is manually steerable within a non-rollover steering range of motion of said
vehicle, and such that when said vehicle is in said second mode, said vehicle automatically
imposes a steering angle limitation such that said vehicle is prevented from being steered beyond
a rollover threshold of said vehicle.” (Id. ¶¶ 11-14.)
In his supporting memorandum, Defendant argues that based on the plain language of
Plaintiff’s asserted claims, he is entitled to summary judgment of no infringement and that there
is no need for the Court to engage in claim construction. (Dkt. No. 40-2 at 15.) Specifically,
Defendant contends that none of the ADAP systems prevent the vehicle or the driver from
steering it beyond a rollover threshold, relying primarily on the declaration of BMW of North
America Product Requirements & Development Manager Frederick W. Fox (“the Fox
Declaration”) to support this contention.
Relying primarily on a declaration from Michael R. Schramm (the inventor of the two
patents at issue for Plaintiff’s anti-roll steering apparatus), Plaintiff responds that as long as an
ADAP-equipped vehicle is in the ADAP engaged mode, that vehicle is prevented from being
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steered beyond a rollover threshold. (See Dkt. No. 58-1, Ex. A.) Plaintiff further contends that
Mr. Fox’s declaration is insufficient to obtain summary judgment because it does not establish
that Fox has adequate personal knowledge of the ADAP system, and doesn’t seek to qualify him
as a witness, but merely shows that he is “familiar” with the system. (Dkt. No. 58 at 4.)
Defendant counters that Fox has personal knowledge of ADAP from his job responsibilities, his
consultation of the applicable BMW manuals, and his own first-hand experience driving cars
with ADAP features. (Dkt. No. 40-12 at ¶ 8.)
DISCUSSION
As the moving party, Defendant bears the burden of establishing that there is no genuine
issue of material fact in this case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 1309 (10th Cir. 2007). A movant who
does not bear the burden of persuasion at trial may satisfy this burden "by pointing out to the
court a lack of evidence on an essential element of the nonmovant's claim." Celotex, 477 U.S. at
325, 106 S.Ct. 2548. Defendant has met his burden, and is thus entitled to summary judgment.
Defendant has demonstrated that ADAP systems (Evasion Aid, Traffic Jam Assistant, and Lane
Keeping Assistant) assist drivers through various “mild torque” steering interventions, but that
none of these features restrict or otherwise limit the driver’s ability to steer the vehicle through
the entire range of steering motion available in the vehicle, including beyond the rollover
threshold. (Dkt. No. 40-2 at 9.) Defendant has also shown that even when ADAP is in the
engaged mode, a driver is not relieved of his or her duty to steer the vehicle in order to stay on
the roadway. (Id. at 12.)
As an initial matter, Plaintiff’s contention that the Fox Declaration is inadmissible is
without merit. “Testimony should not be excluded for lack of personal knowledge unless no
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reasonable juror could believe that the witness had the ability and opportunity to perceive the
event that he testifies about. Weinstein, Weinstein's Evidence ¶ 602[02], at 602-8 to 11 (1988).”
United States v. Hickey, 917 F.2d 901, 904 (6th Cir. 1990). Defendant has shown that Fox in his
capacity as Product Requirements and Development Manager for BMW of North America is
responsible for testing and validating Driving Assistance packages and features offered in BMWbrand vehicles, including the 2018 and 2017 5-Series (G30) and 2017 7-Series (G12), and thus
has personal knowledge of ADAP operations. (Dkt. No. 65 at 9; Dkt. No. 40-12 at ¶¶ 1-2.) He
holds a Mechanical Engineering degree, leads a team composed mostly of engineers in carrying
out his management duties, and has worked for BMW since 1990. (Dkt. No. 40-12 at ¶¶ 1-2.)
He is also familiar with the applicable BMW manuals and has first-hand experience driving cars
with ADAP features. (Dkt. No. 65 at 9.) Defendant has clearly met his burden of showing that a
reasonable juror could find that Fox has personal knowledge of ADAP’s operations, and Plaintiff
has failed to rebut this.
Even if fully credited, Plaintiff’s arguments do not establish facts sufficient for a prima
facie case of patent infringement, and thus cannot overcome summary judgment. The plain and
ordinary meaning of the asserted claims requires that the apparatus (here the ADAP systems)
prevent the vehicle from being steered beyond a rollover threshold. However, unlike Plaintiff’s
anti-roll steering apparatus, ADAP never physically prevents or restricts drivers from steering
ADAP-equipped vehicles beyond the rollover threshold. While Plaintiff claims that ADAP in
the engaged mode prevents the vehicle from being “self-steered” beyond the point of rollover,
(Dkt. No. 58 at 3), Plaintiff does not contest that a driver can always manually override the
ADAP steering interventions and steer the vehicle beyond the rollover threshold. (Id. at 2.)
Simply put, ADAP never actually prevents the vehicle from being steered beyond a rollover
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threshold at any point, including when ADAP is in the engaged mode. Plaintiff has thus failed to
show infringement of the asserted claims.
Finally, claim construction is “not an inviolable prerequisite” to granting summary
judgment in patent cases. See Genetic Techs. Ltd. V. Merial L.L.C., 818 F.3d 1369, 1373-74
(Fed. Cir. 2016). If (as here) a nonmovant fails to show that claim construction is relevant to
resolving issues of law, a court may proceed without conducting a formal claim construction.
See, e.g., Summit 6, LLC v. Samsung Elecs. Co., Ltd., 802 F.3d 1283, 1291 (Fed. Cir. 2015)
(“Because the plain and ordinary meaning of the disputed claim language is clear, the district
court did not err by declining to construe the claim term.”) The Court accordingly holds that no
claim construction is necessary to resolve this dispute, and that Defendant is entitled to summary
judgment of non-infringement.
ORDER
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment is
GRANTED, and Plaintiff’s Complaint is dismissed with prejudice.
Dated this 15th day of November, 2018.
BY THE COURT:
Dee Benson
United States District Judge
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