Kustom Signals, Inc. v. Applied Concepts, Inc.

• Decision Date: 13 June 1999
• Docket Number: No. CIV. A. 96-2296-KHV.,CIV. A. 96-2296-KHV.
• Citation: 52 F.Supp.2d 1260
• Parties: KUSTOM SIGNALS, INC., Plaintiff, v. APPLIED CONCEPTS, INC. and John L. Aker, Defendants.
• Court: U.S. District Court — District of Kansas

52 F.Supp.2d 1260

KUSTOM SIGNALS, INC., Plaintiff, v. APPLIED CONCEPTS, INC. and John L. Aker, Defendants.

No. CIV. A. 96-2296-KHV.

United States District Court, D. Kansas.

June 13, 1999.

As Amended June 29, 1999.

COPYRIGHT MATERIAL OMITTED

Michael Yakimo, Jr., D. A. N. Chase, Ginnie C. Derusseau, Chase & Yakimo, Overland Park, KS, for Plaintiff.

Douglas R. Richmond, Gerald A. King, Thomas H. Stahl, Armstrong Teasdale LLP, Kansas City, MO, Ronald Craig Fish, Falk, Vestal & Fish, Morgan Hill, CA, for Defendants Applied Concepts, Inc., John L. Aker.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Plaintiff Kustom Signals, Inc. ("Kustom") has filed suit against Applied Concepts, Inc. and John L. Aker, alleging that they infringed its patent for a police traffic radar. This matter is before the Court on Defendants' Motion For Summary Judgment On The Issue Of Validity Of The '246 Patent (Doc. # 116) filed February 26, 1999; Defendants' Motion For Summary Judgment On The Issue Of Infringement Of The '246 Patent (Doc. # 119) filed February 26, 1999; Plaintiff's Motion For Summary Judgment Of Infringement Of U.S. Patent No. 5,528,246 (Doc. # 122) filed March 1, 1999; and Plaintiff's Cross Motion For Summary Judgment Of Validity Of The '246 Patent (Doc. # 130) filed March 24, 1999. The Court held oral argument on the above motions on May 3, 1999. After carefully considering the record evidence and arguments of counsel, the Court is prepared to rule. For the reasons set forth below, defendants' motion for summary judgment on non-infringement is sustained, plaintiff's motion for summary judgment on patent validity is sustained in part, and all other motions are overruled.

Summary Judgment Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in the light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

Factual Background

The following facts are uncontroverted or deemed admitted for purposes of the instant motions.¹

Kustom alleges that Applied Concepts, Inc. ("ACI") and John L. Aker infringed its patent for a police radar, specifically U.S. Patent No. 5,528,246 (the "'246 patent" or "'246 radar"). Defendants deny infringement and allege that the patent is invalid. ACI manufactures and sells the accused traffic radars, the Stalker Dual and the Stalker Dual SL. Aker, an ACI shareholder, designed the software that controls the operation of the digital signal processor ("DSP") in the accused radars. Pursuant to an agreement with ACI, Aker receives royalties on Stalker Dual sales.

A. Background Of Doppler Police Radars

In the context of traffic surveillance, Doppler police radars emit signals that bounce off surfaces in front of the radar. These surfaces include target vehicles, immobile roadside objects such as signs, the ground, and even the fan in the patrol car engine. The bounced signals return to the police radar, where a receiver detects and reads them. See Defendants' Memorandum In Support Of Their Motion For Summary Judgment On The Doctrine Of Equivalents (Doc. # 120) filed February 26, 1999, Statement Of Uncontroverted Facts ("ACI's Infr. SOF") ¶ 1. The returning radar signals have a different frequency from the outgoing signals because of the "Doppler effect." The Doppler effect causes a shift in frequency which is proportional to the relative speed between the police radar and the object from which the signal bounced. To determine target speed, the radar first determines the frequency of the target return signal; it then determines the speed, if any, that the radar in the patrol car is traveling; it finally measures the Doppler shift between the two. The higher the frequency shift, the faster the target. A search for the radar return with the highest frequency is called a "fastest search," i.e. a search for the fastest target. See id. ¶ 2.

Some of the return signals do not represent real targets, because many phenomena can create high frequency return signals. For example, radar signals can double and triple bounce between the patrol car and roadside signs or other vehicles and cause a false target at double or triple the relative closure speed. Also, strong signals in the spectrum can generate harmonics far greater than their true frequency. Further, multiple strong return signals can mix. This can cause "intermodulation products" which read as false targets. See id. ¶ 3.

One way to screen false targets is to measure the "amplitude" of the return signal. Amplitude is sometimes referred to as the "magnitude" or "strength" of the signal. Amplitude can indicate both the size and the distance of the object which reflects the signal, the angle of the surface which reflects the radar beam, and the material from which the object is made. For example, a tractor-trailer rig typically has a higher amplitude signal than most roadside objects. Because many of the phenomena that cause high frequency false targets have low amplitudes, Doppler radar can use an amplitude measurement to screen out signals that do not meet a minimum threshold. In police radar parlance, the highest amplitude signal is called the "strongest" signal. See id. ¶ 5.

Police officers cite traffic violators for speeding based on "tracking history." Tracking history includes visual observation of the various vehicles which are in view of the officer, visual estimates of target vehicle speed, and all other information available to the officer. Police use radar to verify their visual estimates of vehicle speed. See id. ¶ 6.

In most states, to secure a conviction for a speeding offense based on radar evidence, the officer must confirm the radar target display speed by visual estimate, and the displayed speed must be the speed of the strongest signal which the radar has detected. Accordingly, before 1994, most police radars automatically selected the strongest radar return signal and displayed its speed in a target speed display window. Reliance on a strongest search can be limiting, however, if a smaller, faster vehicle is very close to a slower, larger vehicle that reflects a stronger signal. See id. ¶ 7. Also, a search for the strongest signal does not eliminate problems of misidentification. The return signal that is strongest may not be the target the officer is looking at, and the closest vehicle does not always generate the strongest signal. For example, a truck with a large radar cross-section that is half a mile away can generate a stronger radar return than a car with a small radar cross-section that is only a quarter of a mile away. Further, a distant car with a small radar cross-section can generate a "glint" if the radar beam strikes the car surface at a particular angle relative to the radar beam. The glint signal can be stronger than the signal from another vehicle that is both closer to the radar and has a larger radar cross-section. See id. ¶ 8.

B. Background Of Fast Fourier Transform Processing

In 1990, ACI introduced the Stalker police radar. See id. ¶ 10. The Stalker employed a mathematical technique known as digital Fast Fourier Transform ("FFT") processing. See id. ¶ 11. The Stalker radar digitized the analog radar return signals and then performed an FFT on the samples. See id. ¶ 12. By performing an FFT, complex analog signals can be transformed into a frequency domain representation, each component having a different frequency (indicating target speed) and amplitude (indicating target signal strength). The resulting collection of single frequency components is called a "spectrum" of Fourier components. In FFT parlance, each single frequency component is called a "bin" and each bin has an index...