Move, Inc. v. Real Estate Alliance Ltd.

• Decision Date: 04 March 2013
• Docket Number: No. 2012–1342.,2012–1342.
• Citation: 709 F.3d 1117
• Parties: MOVE, INC., National Association of Realtors and National Association of Home Builders, Plaintiffs/Counterclaim Defendants–Appellees, and RE/MAX International, Inc., Advanced Access, Eneighborhoods, LLC, Brad Korb, Christy Morrison, Orange County Multiple Listing Service, Inc., (doing business as Southern California MLS), Keller Williams Realty, Inc., Norcal Gold, Inc., (doing business as RE/MAX Gold, Inc.), Georgia MLS, Inc., Metrolist Services, Inc., Delaware Valley Real Estate Information Network, Inc., (doing business as Trend), Rapattoni Corporation, Birdview.Com, Inc.,(doing business as Birdview Technologies), Delta Media Group, Inc., Frank Howard Allen Realtors, Alain Pinel Realtors, Inc., Pulte Homes, Inc., The Ryland Group, Inc., Shea Homes, Taylor Morrison, Inc., (formerly know as Taylor Woodrow, Inc. ) Avalonbay Communities, Inc., Essex Property Trust Inc., BRE Properties, Inc., Riverstone Residential Group, LLC, The First American Corporation, Fidelity National Real Estate Solutions, LLC, Ihomefinder, Inc., CIS Data Systems, Inc., Diverse Solutions, LLC, Trend Software, Inc., (doing business as PropertyMinder), Paymon Ghafouri, National Association of New Home Builders, and Wanisoft Corporation, Counterclaim Defendants, v. REAL ESTATE ALLIANCE LTD., Defendant/Counterclaimant–Appellant, and Equias Technology Development LLC, Defendant/Counterclaimant.
• Court: U.S. Court of Appeals — Federal Circuit

709 F.3d 1117

MOVE, INC., National Association of Realtors and National Association of Home Builders, Plaintiffs/Counterclaim Defendants–Appellees,andRE/MAX International, Inc., Advanced Access, Eneighborhoods, LLC, Brad Korb, Christy Morrison, Orange County Multiple Listing Service, Inc., (doing business as Southern California MLS), Keller Williams Realty, Inc., Norcal Gold, Inc., (doing business as RE/MAX Gold, Inc.), Georgia MLS, Inc., Metrolist Services, Inc., Delaware Valley Real Estate Information Network, Inc., (doing business as Trend), Rapattoni Corporation, Birdview.Com, Inc.,(doing business as Birdview Technologies), Delta Media Group, Inc., Frank Howard Allen Realtors, Alain Pinel Realtors, Inc., Pulte Homes, Inc., The Ryland Group, Inc., Shea Homes, Taylor Morrison, Inc., (formerly know as Taylor Woodrow, Inc. ) Avalonbay Communities, Inc., Essex Property Trust Inc., BRE Properties, Inc., Riverstone Residential Group, LLC, The First American Corporation, Fidelity National Real Estate Solutions, LLC, Ihomefinder, Inc., CIS Data Systems, Inc., Diverse Solutions, LLC, Trend Software, Inc., (doing business as PropertyMinder), Paymon Ghafouri, National Association of New Home Builders, and Wanisoft Corporation, Counterclaim Defendants,

v. REAL ESTATE ALLIANCE LTD., Defendant/Counterclaimant–Appellant,andEquias Technology Development LLC, Defendant/Counterclaimant.

No. 2012–1342.

United States Court of Appeals, Federal Circuit.

March 4, 2013.

Robin L. McGrath, Paul Hastings LLP, of Atlanta, GA, argued for plaintiffs/counterclaim defendants-appellees. Of counsel on the brief was Frank G. Smith, III, Alston & Bird, LLP, of Atlanta, GA.

Rebekka C. Noll, Cadwalader, Wickersham & Taft, LLP, of New York, NY, argued for defendant/counterclaimant-appellant. With her on the brief were Louis M. Solomon and Colin A. Underwood.

Before RADER, Chief Judge, LOURIE, and MOORE, Circuit Judges.

LOURIE, Circuit Judge.

Real Estate Alliance Ltd. (“REAL”) appeals from the decision of the United States District Court for the Central District of California granting summary judgment that Move, Inc. (“Move”) does not infringe claim 1 of REAL's U.S. Patent 5,032,989 (the “'989 patent”). Move, Inc. v. Real Estate Alliance Ltd., No. 07–2185 (C.D.Cal. Jan. 26, 2012), ECF No. 493 (“ Remand Order ”). We vacate the court's grant of summary judgment and remand for further proceedings.

Background

REAL owns the '989 patent, which is a continuation-in-part of U.S. Patent 4,870,576; both patents are now expired. The '989 patent is directed to methods for locating available real estate properties using a zoom-enabled map on a computer. Specifically, claim 1 recites:

1. A method using a computer for locating available real estate properties comprising the steps of:

(a) creating a database of the available real estate properties;

(b) displaying a map of a desired geographic area;

(c) selecting a first area having boundaries within the geographic area;

(d) zooming in on the first area of the displayed map to about the boundaries of the first area to display a higher level of detail than the displayed map;

(e) displaying the first zoomed area;

(f) selecting a second area having boundaries within the first zoomed area;

(g) displaying the second area and a plurality of points within the second area, each point representing the appropriate geographic location of an available real estate property; and

(h) identifying available real estate properties within the database which are located within the second area.

'989 patent col. 15 l. 33–col. 16 l. 3.

Move operates and maintains multiple interactive websites that allow users to search for available real estate properties. Beginning in 2007, Move filed suit seeking a declaratory judgment that REAL's patents were invalid and that Move's websites did not infringe them. REAL counterclaimed, alleging that the “Search by Map” and “Search by Zip Code” functions employed by Move's websites infringed REAL's claimed search methodologies.

In 2009, the parties stipulated to noninfringement based on the district court's claim construction, and after judgment was entered in favor of Move, REAL appealed regarding only claim 1 of the '989 patent. In that appeal, we vacated and remanded, concluding that the district court erred in its claim construction, and issued an opinion construing the claim terms. Move, Inc. v. Real Estate Alliance Ltd., 413 Fed.Appx. 280 (Fed.Cir.2011). In particular, we determined that “selecting an area” as recited in steps (c) and (f) of claim 1 means that “the user or a computer chooses an area having boundaries, not when the computer updates certain display variables to reflect the selected area.” Id. at 286.

On remand, the parties each moved for summary judgment and the district court granted summary judgment of noninfringement to Move. Remand Order, slip op. at 6. The court held that the “Search by Map” and “Search by Zip Code” functions of Move's websites were not direct infringements because they did not perform the “selecting” steps required by the claim. Id. In interpreting our construction that “selection takes place when the user or a computer chooses,” the district court distinguished between circumstances that result in user selection, viz., when the user does not have to create boundaries, but just selects an area with boundaries, versus circumstances that result in computer selection, viz., something more than merely displaying a map after a user provides specific instructions about the geographic area of interest. Id. at 4.

The district court concluded that Move's systems did not meet the “selecting” requirements because, on its websites, a user first selects an already bounded area either by entering a zip code or by clicking on the name of a city or neighborhood, a point on a map, or a zoom bar, but then the computer merely updates the display variables to reflect the user's selected area. Id. at 5–6. In other words, in Move's systems, the user, not the computer, makes the “choice” to search in a certain area, and that chosen area “ha[s] boundaries,” but then the computer merely displays the corresponding map. The court also concluded that Move's systems were not liable for joint infringement because Move did not exert direction or controlover users who may have performed the selecting steps. Id. at 6.

REAL appealed from the grant of summary judgment of noninfringement. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

Discussion

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “We review de novo a district court's grant of summary judgment, drawing all reasonable inferences in favor of the nonmovant.” Tokai Corp. v. Easton Enters., Inc., 632 F.3d 1358, 1366 (Fed.Cir.2011); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Infringement is a question of fact. Absolute Software, Inc. v. Stealth Signal, Inc., 659 F.3d 1121, 1129–30 (Fed.Cir.2011). But, “[o]n appeal from a grant of summary judgment of non-infringement, we determine whether, after resolving reasonable factual inferences in favor of the patentee, the district court correctly concluded that no reasonable jury could find infringement.” Id. at 1130.

On appeal, REAL contends that the district court deliberately disregarded our claim construction order in finding that only a human user performed steps that constitute “selecting an area having boundaries,” contrary to our ruling that “both users and computers may select or choose.” REAL alleges that Move's systems directly performed all claimed method steps under our construction, apart from the actions of any human user. Specifically, REAL asserts that after a map of a desired geographic area ( e.g., a county) is displayed on one of Move's websites according to step (b) of claim 1, the user clicks on a more defined area ( e.g., a neighborhood), and the Move computer responds by “select[ing] the world coordinates equal to the boundaries” of that more defined area ( i.e., “selecting a first area having boundaries [such as a neighborhood] within the geographic area [such as the county]” according to claimed step (c)). Appellant Br. 14–15, 18. REAL maintains that this selection is made from among the other areas within the larger geographic area that are defined by Move's computer system ( e.g., a list of different neighborhoods within the county), and the Move website automatically generates a display of this “zoomed” first area because the coordinates are stored in the Move computer system and are not known to the user. In REAL's view, the user does not know the precise locations of the boundaries, or how they have been represented, stored or encoded, and processed in Move's computer system; the user merely designates an area to display and the computer then does the “selecting.”

Move responds that, in construing the selecting steps, we held that “[s]election takes place when the user or a computer chooses an area having boundaries,” and Move's computer never “chooses.” Appellee Br. 22 (citing Move, 413 Fed.Appx. at 285) (emphasis in original). Move maintains that there is nothing in REAL's description of Move's system that could lead a reasonable jury to conclude that Move's computer selected anything freely after consideration or made any sort of decision as to what to select. Move argues that, on the contrary, it was the user, after considering where he or she wished to search for properties, who freely selected or decided upon an area, then notified Move's computer of that choice by clicking on the selected area on the map or in a drop down menu. Move contends that its computer therefore does not choose or select which world coordinates to retrieve; the coordinates are pre-associated with a particular map, so that when a user clicks on a particular...