733 Fed.Appx. 542 (Fed. Cir. 2018), 2017-2276, Viatech Technologies Inc. v. Microsoft Corp.
|Citation:||733 Fed.Appx. 542|
|Opinion Judge:||Chen, Circuit Judge.|
|Party Name:||VIATECH TECHNOLOGIES INC., Plaintiff-Appellant v. MICROSOFT CORPORATION, Defendant-Appellee|
|Attorney:||Michael Lennon, Hunton Andrews Kurth LLP, New York, NY, argued for plaintiff-appellant. Also represented by Sheila Mortazavi, Georg Christian Reitboeck. Frank Scherkenbach, Fish & Richardson, PC, Boston, MA, argued for defendant-appellee. Also represented by Kurt Louis Glitzenstein, Steven Katz, ...|
|Judge Panel:||Before Lourie, Schall, and Chen, Circuit Judges.|
|Case Date:||May 23, 2018|
|Court:||United States Courts of Appeals, Court of Appeals for the Federal Circuit|
This Disposition is Nonprecedential. (See Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. Fed. Cir. Rule 32.1.)
Appeal from the United States District Court for the District of Delaware in No. 1:14-cv-01226-RGA, Judge Richard G. Andrews.
Michael Lennon, Hunton Andrews Kurth LLP, New York, NY, argued for plaintiff-appellant. Also represented by Sheila Mortazavi, Georg Christian Reitboeck.
Frank Scherkenbach, Fish & Richardson, PC, Boston, MA, argued for defendant-appellee. Also represented by Kurt Louis Glitzenstein, Steven Katz, Whitney A. Reichel.
Before Lourie, Schall, and Chen, Circuit Judges.
Chen, Circuit Judge.
This case is appealed from the United States District Court for the District of Delaware, which granted summary judgment of non-infringement of Viatech Technologies Inc.s Patent No. 6 ,920,567 by several versions of Microsoft Corporations Windows and Office software.1
The 567 patent claims a file that contains the license to the content of the file as part of the file itself. Specifically, the 567 patent covers a "digital content file" that contains "digital content," a "dynamic license database" with the license information, and a "file access control mechanism" that interlinks the license information and the digital content. The patent also has related method claims.
Viatech appeals the district courts grant of summary judgment on the following contentions: (1) erroneous claim construction of the terms "file" and "dynamic license database"; (2) erroneous summary judgment of literal non-infringement due to outstanding disputed facts; and (3) erroneous summary judgment of non-infringement under the doctrine of equivalents, which the district court dismissed as waived.
Below, we clarify the constructions of "file" and "dynamic license database," but find that even under these clarified constructions, (1) it is undisputed that the pre-installation version of Windows does not contain the "dynamic license database" element, and (2) Viatech waived the argument that post-installation Windows is a "file" by not squarely presenting it to the
district court. We also find that the district court correctly found any doctrine of equivalents argument waived.
Thus, we affirm .
A. The 567 Patent
The 567 patent describes and claims systems and methods for distributing digital content files and controlling the licensed use of digital content included in those files. See, e.g., 567 Patent, Abstract.
Prior art systems relied on licensing mechanisms that were separate and independent from the licensed content and had no effective functional relationship to the licensed program. Id. at col. 3, ll. 37-44. As a result, the licensed content was "vulnerable to various methods for bypassing such forms of protection." Id. at col. 3, ll. 43-44. In addition, the licenses could not subsequently be modified once granted and the content became fully accessible to the user system. Id. at col. 3, ll. 44-52.
Addressing these disadvantages, the 567 patent describes and claims a "digital content file" that comprises a "file access control mechanism" including a "dynamic license database." Id. at col. 3, l. 53-col. 4, l. 1. The file access control mechanism is embedded either physically or functionally, in the digital content file, and controls access to digital content based on the terms of the contents corresponding license. Id. at col. 15, ll. 12-44. The database stores (1) the license terms and provisions which control access to the digital content of the file, and (2) the information controlling operations of the file access control mechanism. Id. at col. 3, l. 53-col. 4, l. 14.
As illustrated in Figure 1A of the 567 patent (annotated below), the digital content file DCF 10 includes DCF Content 10A, which can be either executable code or data. Id. at col. 14, l. 66-col. 15, l. 11. The digital content file also has an embedded file access control mechanism FACM 12, which is either "directly and physically" or "functionally" part of the DCF 10. Id. at col. 15, ll. 43-45. The FACM 12 in turn includes the dynamic license database 14 and other components, for example, a license functions mechanism 16, that enforce the stored license terms. Id. at Fig. 1A, col. 10, ll. 24-65.
The specification describes this figure as a "diagrammatic representation[ ] of a file containing licensed digital content and an electronic license mechanism embedded therein according to the present invention." Id. at col. 9, ll. 31-34.
B. Asserted Claims
In its complaint and infringement contentions, Viatech alleged that Windows software infringes claims 1-7, 13-15, and 28-32 of the 567 patent. Claim 1 is independent in form, and is representative: 1. A digital content file including a license control mechanism for controlling the licensed use of digital content, comprising:
a digital content, and
an embedded file access control mechanism embedded in the digital content file, including
a license functions mechanism embedded in the digital content file and including
a license monitor and control mechanism communicating with a dynamic license database and monitoring use of the digital content by a user to deter-mine whether a use of the digital content by a user complies with the license defined in the dynamic license database, and
a license control utility providing communications between a user system and an external system to communicate license definition information between the user system and the external system, including
a graphical user interface associated with the license control utility to provide communication between a user and user accessible functions
of the license functions mechanism, and
the dynamic license database wherein the dynamic license database is associated with the digital content file for storing information controlling operations of the file access control mechanism and license information controlling licensed use of the digital content.
Id. at col. 40, l. 65-col. 41, l. 24. Claims 28 and 31 are independent method claims and include similar language regarding the claimed digital content file. Id. at col. 47, l. 43-col. 48, l. 29, col. 49, l. 26-col. 50, l. 30.
C. The Accused Products
Viatech asserts that Microsofts Windowss "Software Protection Platform" (SPP)2 infringes the 567 patent. Appellants Br. at 9. Certain SPP software components present in Windows store information, including the terms of a users license (e.g., a trial copy or otherwise). When Windows is installed on a users computer, the SPP code enforces those terms when the user attempts to access the software.
Specifically, Viatech asserts that the "disk image" file used to install Windows on a users computer is the "digital content file" of the 567 patent. Appellants Br. at 39; Appx2512, ¶ 4. The disk image file is a data file that contains an installer program and the Windows software in a compressed form.
Viatech also asserts that the Token Store (a file named "tokens.dat"), the Trusted Store (a file named "data.dat"), and the Cache Store (a file named "cache.dat") (collectively "Stores"), which are not present in the disk image file but come into existence post-installation, make up the "dynamic license database" of Windows. Appellants Br. at 32-33. Each of these files is a data file. The Token Store stores licenses that must be activated by a remote Microsoft server. The Trusted Store stores product keys and other information. The Cache Store stores the results of a license check.
D. Issues on Appeal
In June 2016, the district court issued a claim construction order on ten terms. Viatech Tech. Inc. v. Microsoft Corp., No. CV 14-1226-RGA, 2016 WL 3398025...
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