Reiffin v. Microsoft Corp.

• Decision Date: 30 March 2001
• Docket Number: No. C-00-2221 VRW.,No. C-98-0266 VRW.,C-98-0266 VRW.,C-00-2221 VRW.
• Citation: 158 F.Supp.2d 1016
• Parties: Martin Gardner REIFFIN, Plaintiff, v. MICROSOFT CORPORATION, Defendant. Martin Gardner Reiffin, Plaintiff, v. Microsoft Corporation and Harold C Wegner, Defendants.
• Court: U.S. District Court — Northern District of California

158 F.Supp.2d 1016

Martin Gardner REIFFIN, Plaintiff, v. MICROSOFT CORPORATION, Defendant.

Martin Gardner Reiffin, Plaintiff, v. Microsoft Corporation and Harold C Wegner, Defendants.

No. C-98-0266 VRW.

No. C-00-2221 VRW.

United States District Court, N.D. California.

March 30, 2001.

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Martin Gardner Reiffin, Danville, CA, Pro se.

Thomas W. Burt, Redmond, WA, Eric L. Wesenberg, Terrence P. McMahon, William L. Anthony, Erin Farrell, Orrick Herrington & Sutcliffe LLP, Menlo Park, CA, J. Christopher Carraway, Portland, OR, Todd M. Siegel, Klarquist Sparkman Campbell, Portland, OR, for Defendant.

ORDER

WALKER, District Judge.

In these related cases, plaintiff Martin Gardner Reiffin alleges patent infringement and Sherman Act violations by defendants Microsoft Corporation and Harold C Wegner. Reiffin initially sued Microsoft in 1998 (Reiffin I), claiming that Microsoft has infringed two patents, Patent Nos 5,694,603 ('603 patent) and 5,694,604 ('604 patent). This court granted summary judgment for Microsoft based on an interpretation of 35 USC § 112 ¶ 1 (section 112) that the court has since rescinded. Reiffin v. Microsoft Corp., 48 USPQ2d 1274 (N.D.Cal.1998); Sun Microsystems, Inc. v. Kingston Technology Co, C-99-3610 (September 5, 2000). Reiffin appealed, and the Federal Circuit reversed and remanded for further proceedings. Reiffin v. Microsoft Corp., 214 F.3d 1342 (Fed.Cir.2000). Currently before the court in Reiffin I are the parties' cross-motions for summary judgment and motions to strike declarations, as well as Reiffin's motion for permanent or preliminary injunction, motion under FRCP 11, declaration under 28 USC § 144 and two expedited motions.

In the related case (Reiffin II), Reiffin filed the first amended complaint (FAC) on April 10, 2000, in the district court for the District of Columbia, alleging patent infringement and Sherman Act violations against Microsoft and an additional defendant, Wegner. The matter was transferred to this district on May 31, 2000, because a majority of the allegations in Reiffin II are based on the proceedings that have taken place in Reiffin I. Before the court in Reiffin II are defendants' motions to dismiss and Reiffin's motion for default judgment and expedited motion for partial summary judgment and preliminary injunction.

I

For over 20 years, Reiffin has been engaged in the business of electronic research, patenting and licensing the inventions arising therefrom. He claims that he owns a patent on a form of computer technology known as multithreading. On September 28, 1982, Reiffin filed a patent application entitled "Computer System with Real-Time Compilation." In the application, Reiffin disclosed a system in which a combination of software and hardware compiles a computer program concurrently with the program's entry into an editor, achieving what is described as "contemporaneous real-time entry and compilation of a source program." In essence, the system utilizes an "interrupt mode of operation" to allow a computer's Central Processing Unit (CPU) to execute two or more tasks with such rapidity that the computer appears to be performing the two or more tasks at once. For example, a computer with multithreading capabilities can run a word processing program that appears to be receiving data (i e, words) at the same time it is spell-checking those words. In actuality, the computer's processor (CPU) is switching from one task to the other by quickly processing keystroke threads, then spell-check threads, then keystroke threads and so on.

In July 1983, Reiffin published an article in "Microcomputing" magazine entitled "A Real-Time Compiler System," in which he described in detail the idea submitted in his 1982 application. Declaration of John D Vandenberg (Vandenberg Decl), App A (Doc # 137), Exh 1. In 1983, Reiffin filed a patent with the UK patent office (No 2130406), entitled "Computer system with real-time compilation," in which he also described his idea in detail; that application was published by the UK patent office on May 31, 1984. Vandenberg Decl, App A (Doc # 137), Exh 4. Then on November 26, 1986, the UK patent office issued a patent on Reiffin's patent application, publishing verbatim his original 1982 application with the United States Patent Office. Vandenberg Decl, App A (Doc # 137), Exhs 2-3.

Reiffin filed a continuation of the 1982 application in 1990, in which he described the system as a "Preemptive Multithreaded Computer System with Clock Activated Interrupt." Vandenberg Decl, App P (Doc # 140), Exh 9. The 1990 application included additional text and modified claims as compared to the 1982 application. The 1990 application issued as the '603 patent on December 2, 1997. Reiffin filed a continuation of the 1990 application in 1994, which issued as the '604 patent on December 2, 1997, as well. During the lengthy prosecution of these patents, Reiffin amended his claims of the '603 and '604 patents several times. The two patents have the same specification, but differ on their claims; the '603 patent claims a memory product storing multithreaded software, and the '604 patent claims a method of multithreaded operation and a multithreaded system.

Reiffin alleges that several of Microsoft's software applications infringe the '603 and '604 patents, including word processing programs that check spelling and grammar as text is entered and operating systems such as Windows 98, which control switching of the program threads that are active during normal operation of a personal computer. Reiffin also alleges that Microsoft and Wegner have acted in violation of the Sherman Act. The court now addresses each of the parties' motions in these two related matters.

II

The court begins with the matters in Reiffin I.

A

Before turning to the parties' substantive motions, the court must address the declaration submitted by Reiffin on January 5, 2001, in which he asserts that the undersigned has manifested an extrajudicial bias and prejudice in favor of Microsoft and against Reiffin. PlDecl (Docs # 239 and 240). Pursuant to 28 USC § 144, Reiffin argues, another judge must be assigned to this case. Id.

Indeed, section 144 provides that whenever a party files "a timely and sufficient affidavit" asserting that the judge has a personal bias or prejudice against the party, "such judge shall proceed no further therein." 28 USC § 144. The judge who is the subject of disqualification, however, makes the initial determination as to the legal sufficiency of the declaration. William W Schwarzer, A Wallace Tashima and James M Wagstaffe, Federal Civil Procedure Before Trial § 16:213 (Rutter Group Practice Guide 2000) (hereinafter, Schwarzer); see also United States v. Montecalvo, 545 F.2d 684, 685 (9th Cir. 1976). To be legally sufficient, the declaration must be both "timely" and state "facts and reasons" establishing the judge's bias. Montecalvo, 545 F.2d at 685. The judge is presumed to be qualified, and thus there is a substantial burden upon the moving party to show that such is not the case. United States v. Zagari, 419 F.Supp. 494, 501 (N.D.Cal.1976).

The court is doubtful that Reiffin's declaration was submitted in a timely manner given the accusations asserted therein. In any event, the court finds that Reiffin's declaration fails to satisfy the second requirement that it sufficiently state facts and reasons for his belief that a bias or prejudice exists. Assuming the declaration is timely filed, a legally sufficient declaration must meet the following requirements:

(1) the facts must be material and stated with particularity; (2) the facts must be such that if true they would convince a reasonable man that a bias exists; and (3) the facts must show the bias is personal, as opposed to judicial, in nature.

Henderson v. Dept. of Public Safety and Corr., 901 F.2d 1288, 1296 (5th Cir.1990); see also Schwarzer § 16:206.1.

The facts put forth in Reiffin's declaration essentially describe this court's analysis of the key legal issues in the case. Such facts, taken as true, would not convince a reasonable man that the undersigned has a bias against Reiffin. At the very least, such facts demonstrate a judicial, rather than personal, inclination to rule against Reiffin on certain issues. An evaluation of the strength or weakness of a party's case, however, does not qualify as the type of personal bias contemplated by section 144. See Henderson, 901 F.2d at 1296. Accordingly, the court determines that Reiffin's declaration is not legally sufficient. Reiffin's request to disqualify the undersigned pursuant to section 144 is, therefore, DENIED.

B

The now turns to Microsoft's motion for summary judgment. Doc # 133. In reviewing a summary judgment motion, the court must determine whether there are genuine disputed issues of material fact, resolving any doubt in favor of the party opposing the motion. The burden of establishing that there are no genuine issues of material fact lies with the moving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the nonmoving party would bear the burden of proof at trial, the moving party may meet its burden by pointing out — not by a conclusory statement but by demonstration — the absence of evidence to support the nonmoving party's case. See id at 325-26, 106 S.Ct. 2548. Summary judgment is granted only if the moving party is entitled to judgment as a matter of law. FRCP 56(c).

Summary judgment is available in patent cases as in other areas of litigation. Nike Inc. v. Wolverine World Wide, Inc., 43 F.3d 644, 646 (Fed.Cir.1994). Because there is a presumption that patent examiners have done their jobs correctly, courts presume that patents are valid. Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555, 24 USPQ2d 1401, 1414 (Fed.Cir.1992). As such, when a party seeks summary judgment that a...