Biax Corp. v. Nvidia Corp.

• Decision Date: 30 March 2013
• Docket Number: Civil Action No. 09-cv-01257-PAB-MEH
• Parties: BIAX CORPORATION, Plaintiff, v. NVIDIA CORPORATION, SONY COMPUTER ENTERTAINMENT AMERICA, INC., and SONY ELECTRONICS INC., Defendants.
• Court: U.S. District Court — District of Colorado

BIAX CORPORATION, Plaintiff,

v. NVIDIA CORPORATION,SONY COMPUTER ENTERTAINMENT AMERICA, INC., andSONY ELECTRONICS INC., Defendants.

Civil Action No. 09-cv-01257-PAB-MEH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

DATED March 30, 2013

Judge Philip A. Brimmer

ORDER

This matter is before the Court on Defendants' Motion for Recovery of Attorneys' Fees and Expenses Incurred After Claim Construction [Docket No. 956/981] filed by defendants Sony Computer Entertainment America, Inc. and Sony Electronics Inc. (collectively, "the Sony defendants") and NVIDIA Corporation ("NVIDIA"). The Court's jurisdiction is based on 28 U.S.C. §§ 1331 and 1338(a).

I. BACKGROUND

Plaintiff BIAX Corporation ("BIAX") brought suit against NVIDIA and the Sony defendants, alleging that defendants infringed and induced infringement of U.S. Patent No. 5,517,628 (the "'628 Patent") and U.S. Patent No. 6,253,313 (the "'313 Patent") (collectively, the "patents"), both assigned to BIAX.¹ As stated in the patents' sharedspecification, the "invention generally relates to parallel processor computer systems and, more particularly, to parallel processor computer systems having software for detecting natural concurrencies in instruction streams and having a plurality of processor elements² for processing the detected natural concurrencies." '313 Patent col. 1 ll. 18-23. As the Court has previously noted, see Docket No. 231 at 3, the invention relies on processor elements that access register files containing relevant information for subsequent processing of instructions. Included within the teachings of the inventions are condition code register files containing multiple, addressable condition code registers,³ each of which contains condition codes indicating whether the results of executed instructions meet certain conditions. The condition codes can include indications of whether the next instruction in a series should be executed or whether a branch must be taken, requiring a jump to an earlier or later instruction. The provision of multiple, addressable condition code registers is a central feature of the claimed invention.

BIAX accused the Sony defendants of infringing the patents through the sale of products containing RSX graphics processor chips and GeForce NV40 and NV50 processor chips employing a plurality of condition code registers. Within each RSX chipare eight "vertex shaders" and six "fragment shaders." Each vertex shader and fragment shader contains an accused processor element or first circuit⁴ and multiple accused condition code registers and condition storage.⁵ The accused processor elements or first circuits found in one RSX shader cannot access condition code registers and condition storage found in any other shader. BIAX's claims against NVIDIA are based on NVIDIA's production of the NV40 and NV50 chips. NV40 chips operate in the same way for purposes of BIAX's infringement allegations. NV50 chips contain accused processor elements and first circuits which cannot access condition code registers in other processors⁶ found in the NV50 chip.

Prior to the Court's June 21, 2010 Order Regarding Claim Construction,⁷ defendants proposed that the Court construe the term "condition code register" to mean "a special purpose register for storing a condition code, which is shared by all processor elements." Docket No. 231 at 35. The Court declined to incorporate the phrase "which is shared by all processor elements" into its construction because it found that "Claim 1 provides for the possibility of a single processor element," in which case "the register [would not be] shared by all processor elements since there would just be one." DocketNo. 231 at 37. It went on to explain that,

while defendants are correct that any processor element is able to access any condition code register, their argument to include within the definition of "condition code register" a reference to multiple processor elements sharing the condition code register is a more limited definition than Claim 1 requires. Because that feature is separately provided for in the claim language, it need not be included within the definition of the component of the system called a "condition code register."

Id. In construing the term "condition storage," the Court again rejected defendants' request to include a clause indicating that condition storage is "shared by all processor elements." Docket No. 231 at 44. The Court explained that including this phrase in the claim construction was unnecessary because "the claim language clearly provides that the 'condition code storages' are accessible by 'each of said processor elements.' . . . But, to the extent there is any dispute over whether, despite the foregoing, condition code storage locations are shared by all processor elements, the Court rules that they are." Id.

On August 11, 2010, defendants filed a motion for clarification of the Court's construction of the terms "condition code register" and "condition storage." Docket No. 335. Defendants argued that the Court should amend its construction to make explicit its finding that condition code registers and condition storage were shared by all processors. Docket No. 335 at 1-2. On October 28, 2010, the Court denied defendants' motion, explaining that the claim construction was unambiguous because the claim language itself provided that each processor could access each condition code register and condition storage location. Docket No. 455 at 1-2. The Court concluded that:

defendants' real concern appears to be that, because the Court'sconstruction of the terms did not include specific reference to an attribute of the processor element, plaintiff might attempt to present constructions or arguments to a jury that are inconsistent with the Court's unambiguous rulings. The Court, however, ruled that it is unnecessary to include the attribute of shared access in the construction of the two terms because such a quality was already clearly provided for by the claims at issue. Plaintiff has expressed no confusion regarding that ruling and has not sought clarification. The Court, therefore, sees little risk that plaintiff will attempt to argue at trial that processor elements are not able to access any condition code registers or condition storage locations.

Docket No. 455 at 2.

Defendants' June 23, 2011, deposition of Dr. Edward Davidson, one of BIAX's expert witnesses, yielded the following exchanges:

Q. In forming your infringement opinions with respect to the '628 patent, did you apply a requirement that the processor element is capable of accessing any of the condition code registers? . . .

A. No, I did not apply that.

***

Q. In forming your infringement opinions for the '313 patent, did you apply a requirement that condition code storage locations are shared by all processor elements?

A. By all processor elements in the RSX? No.

***

Q. Do we agree, then, that if there is a requirement that processor elements need to access any of the condition code registers or condition code storage locations in the chip, then RSX doesn't infringe?

A. It doesn't infringe that requirement, no. But there is no such requirement.

Docket No. 956-2 at 6, ll.15-24; 7, ll.4-9; and 8, ll.12-18.

On August 3, 2011, the Sony defendants filed a motion for summary judgment of non-infringement [Docket Nos. 701/729]. On November 2, 2011, NVIDIA filed a motionfor summary judgment of non-infringement [Docket Nos. 872/876]. Defendants argued that summary judgment was warranted because the accused devices did not satisfy the Court's construction of "condition code register" and "condition storage."

In its response [Docket Nos. 757/766] filed on September 9, 2011, BIAX admitted that "[a]ccused 'condition code registers' and 'condition storage' found in any one RSX shader cannot be accessed by 'processor elements' or 'first circuits' found in any of the other RSX shaders" and that "[a]ccused 'processor elements' or 'first circuits' in any one RSX shader cannot access 'condition code registers' and 'condition storage' in any other RSX shaders." Docket No. 757 at 1, ¶ 4-6. However, BIAX argued that these admissions were not relevant because, according to its reading of the claim construction, shared access was not a limitation applicable to all claims but only to those claims that explicitly state that limitation, namely, unasserted claim 2 of the '628 Patent and unasserted claim 1 of the '313 Patent. Docket No. 757 at 6. ("Rather, [the] Court has held only that the claims themselves specify whether 'shared access by all processor elements' is required"); see also Docket No. 1018 at 1 (explaining that BIAX understood the "shared by all" concept to apply only to "specific patent claims containing that limitation-including '628 patent claim 2 and '313 patent claim 1").

BIAX also argued that "each individual Vertex Process Engine ('VPE') within the RSX chip and the NV40 chips is a separate infringing device" and thus that the requirement that condition code registers be shared by all processing elements was irrelevant. Docket No. 757 at 6-7. BIAX relied on SunTiger, Inc. v. Scientific Research Funding Grp., 189 F.3d 1327 (Fed. Cir. 1999), which held that sunglass lenses coated with a patented orange dye could infringe the patent even though the lenses were alsocoated with a gray dye that was not covered by the patent. The court in SunTiger held that the addition of an extra element does not negate a finding of infringement unless the "claim is specific as to the number of elements and the addition of an element eliminates an inherent feature of the claim." Id. at 1336. The court also stated: "we have never required that a claim read on the entirety of an accused device in order to infringe. If a claim reads merely on a part of an accused device, that is enough for infringement." Id. BIAX contended that treating defendants' VPEs in isolation was analogous to considering a portion of a sunglass lens in isolation and thus that...