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Summary Judgment of Noninfringement Recommended Granted

By Michael C. Smith

Abstrax, Inc. v. Dell, Inc. et al, 2:07-cv-00221 (E.D. Tex. 9/18/09)

Judge: Chad Everingham

Holding: Motion for Summary Judgment as to Noninfringement Recommended GRANTED IN PART.

Several good recent orders out of this case.  Two weeks ago Judge Everingham denied the motion for summary judgment as to willful infringement, following a ruling last month granting a codefendant Sun's motion to transfer venue, sending Sun to California, but maintaining the case against Dell in Texas.

Last week he recommending granting in part Dell's motion for summary judgment of noninfringement as to some of the plaintiff's literal infringement claims as well as all of plaintiff's claims under the doctrine of equivalents where plaintiff "agree[d] that its case is one for literal infringement. . . . [but] wants to preserve its ability to raise infringement under the doctrine of equivalents in its rebuttal case" in the event defendant argued at trial that its accused programs operate in a manner that is different from the manner described in plaintiff's expert's report. The court observed that the plaintiff did not argue that it had insufficient opportunity to investigate the operation of the accused programs, or that it lacked an ample opportunity to take discovery into the defendants's expert's opinions.  Under these facts, then, Plaintiff could not continue with its DOE claims.

Judge Everingham's order examined the literal infringement issues raised in Dell's motion and granted summary judgment as to some of them, as noted above.  Dell also sought summary judgment on the issue of indirect infringement, but Judge Everingham denied that motion since there was outstanding discovery, and directed that the issue could be re-raised as a motion for judgment as a matter of law later on.  The court also denied Dell's motion that summary judgment was proper under 35 U.S.C. § 271(g).

Full post as published by Eastern District of Texas Federal Court Practice on September 28, 2009 (boomark / email).