Tecsec Inc. v. Int'l Bus. Machines Corp..

• Decision Date: 03 March 2011
• Docket Number: No. 1:10CV115 (LMB/TCB).,1:10CV115 (LMB/TCB).
• Citation: 769 F.Supp.2d 997,2011 Markman 779886
• Parties: TECSEC, INC. Plaintiff,v.INTERNATIONAL BUSINESS MACHINES CORP., et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

769 F.Supp.2d 997

2011 Markman 779886

TECSEC, INC. Plaintiff,

v.INTERNATIONAL BUSINESS MACHINES CORP., et al., Defendants.

No. 1:10CV115 (LMB/TCB).

United States District Court, E.D. Virginia.

March 3, 2011.

Brian Mark Buroker, Michael Andrew Oakes, Hunton & Williams, Washington, DC, Stephen Michael Sayers, Thomas J. Cawley, Hunton & Williams, McLean, VA, for Plaintiff.Craig Crandall Reilly, Law Office of Craig C. Reilly, Alexandria, VA, Walter Dekalb Kelley, Jr., Tara Lynn Renee Zurawski, Jones Day (DC), Jeffrey Kirk Sherwood, Dickstein Shapiro LLP (DC), Stephen Eric Baskin, Jonathan Dyste Link, Kilpatrick Stockton LLP, Blair Martin Jacobs, Christina Ann Ondrick, McDermott Will & Emery LLP, Lyle Roberts, Dewey & Leboeuf LLP (DC), Sarah Marie Hall, Covington & Burling LLP (DC) Washington, DC, Michael W. Robinson, Stephen Keith Gallagher, Venable LLP, Vienna, VA, for Defendants.

MEMORANDUM OPINION

LEONIE M. BRINKEMA, District Judge.

Before the Court are the parties' cross-motions for summary judgment concerning plaintiff's allegations of patent infringement by the defendant, International Business Machines Corporation [Dkt. Nos. 462 and 478]. For the reasons stated in this Memorandum Opinion, the defendant's Motion for its Proposed Claim Constructions and Summary Judgment of No Infringement [Dkt. No. 462] has been granted, the remainder of plaintiff's Motion for Partial Summary Judgment of Infringement by Defendant IBM and on Defendant's Affirmative Defenses of Release and Immunity under 28 U.S.C. § 1498 [Dkt. No. 478] has been denied,¹ and summary judgment will now be entered in favor of the defendant on all claims asserted in plaintiff's Second Amendment Complaint.

I. Background

The plaintiff in this patent infringement action, TecSec, Inc. (“TecSec”), is a Virginia corporation with its principal place of business in McLean, Virginia. TecSec's primary business is the development of encryption and security techniques; it has designed, developed, and sold a number of cryptography and security-related products since its founding in 1990, and has been awarded more than thirty United States patents in the field of encryption. See Pl.'s Second Amend. Compl. ¶¶ 20–25.

In this civil action, TecSec asserts that defendant International Business Machines Corporation (“IBM”) and several other defendants have infringed one or more of the claims of six of its patents, in violation of 35 U.S.C. § 271 et seq.² TecSec's Second Amended Complaint, filed on July 6, 2010, asserts infringement of the following three groups of patents:

1. United States Patent No. 5,369,702 (“the '702 patent”), issued on November 29, 1994; United States Patent No. 5,680,452 (“the '452 patent”), issued on October 21, 1997; United States Patent No. 5,717,755 (“the '755 patent”), issued on February 10, 1998; and United States Patent No. 5,898,781 (“the '781 patent”), issued on April 27, 1999. All four patents deal with the “Distributed Cryptographic Object Method” for data encryption and are collectively referred to as “the DCOM patents” or “the '702 patent family.”

2. United States Patent No. 6,694,433 (“the '433 patent”), issued on February 17, 2004, dealing with an “Extensible Markup Language (XML) encryption scheme,” and alternatively referred to as “the XML patent.”

3. United States Patent No. 7,069,448 (“the '448 patent”), issued on June 27, 2006, dealing with “Context Oriented Crypto–Processing on a Parallel Processor Array,” and alternatively referred to as “the Parallel Processor patent.”

Id. ¶ 1. In particular, TecSec accuses IBM of infringing 25 claims of the six patents in suit, including:

1. The '702 patent: claims 2, 8, 9, 12, 14, and 15 ³

2. The '452 patent: claims 1, 2, and 13

3. The '755 patent: claims 1 and 2

4. The '781 patent: claims 1, 2, 3, 10, 13, 14, and 15

5. The '433 patent: claims 1, 3, 4, 8, and 12 ⁴

6. The '448 patent: claims 1 and 5See id.; see also IBM's Br. in Supp. of its Proposed Claim Constructions and Mot. for Summ. J. of No Infringement [“Def.'s Mot. for Summ. J.”] at 1. As a result of the alleged infringement, plaintiff seeks relief in the form of a permanent injunction enjoining the defendant and all of its affiliates from infringing the patents-in-suit, along with an award of all appropriate damages, including treble damages for the defendant's alleged willful infringement, and attorneys' fees and costs pursuant to 35 U.S.C. § 285. See Pl.'s Second Amend. Compl. at 98–99.

Defendant IBM is a New York corporation with its principal place of business in New York that manufactures and sells computer software and hardware. See id. ¶ 4. The IBM products accused of infringement in this civil action fall into three general categories: (i) IBM DB2 and IDS database products (accused of infringing the '702 patent family); (ii) IBM WebSphere and DataPower Appliance products (accused of infringing the '702 patent family and the '433 patent); and (iii) IBM System z mainframe server products (accused of infringing the '448 patent). See id. ¶¶ 31–33; 57–58; 82–83; 107–08; 132–33; 158–59. More specifically, the accused products include:

1. IBM's “database products”: DB2 for z/OS; DB2 for LUW (Linux, UNIX, and Windows); and IDS (used in conjunction with Data Encryption Tool and Database Encryption Expert (“DEE”)).

2. IBM's WebSphere products: WebSphere Application Server (“WAS”); WebSphere DataPower XML Security Gateway XS40; WebSphere DataPower Integration Appliance XI50; and WebSphere DataPower B2B Appliance XB60.

3. IBM's System z products: System z mainframe servers (z9 and z10) that incorporate Crypto Express2; and System z mainframe servers (z9 and z10) that incorporate Crypto Express3.

Id.

In its Motion for its Proposed Claim Constructions and Summary Judgment of No Infringement [Dkt. No. 462], IBM seeks summary judgment in its favor on all counts in plaintiff's Second Amended Complaint, arguing that TecSec has not come forward with sufficient evidence to establish a genuine material dispute regarding alleged infringement of any of the six patents at issue. In its Motion for Partial Summary Judgment of Infringement [Dkt. No. 478], TecSec seeks judgment in its favor on claims 8 and 9 of the '702 patent and claim 4 of the '433 patent, along with several of the affirmative defenses raised by IBM in its First Amended Answer to TecSec's Second Amended Complaint.

II. Standard of Review

Summary judgment is appropriate where the record demonstrates “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must view the record in the light most favorable to the nonmoving party. See Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir.2002). However, the “mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252, 106 S.Ct. 2505; see also Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir.2008).

Thus, if a nonmoving party bears the burden of proof on a claim at trial, the moving party may prevail on its Rule 56 motion by showing that there is a lack of evidence to carry the other party's burden as to any essential element of the cause of action. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Cray Commc'ns Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 393–94 (4th Cir.1994). Once the moving party has met its burden of demonstrating the absence of an issue of material fact, the party opposing summary judgment may not rest on mere allegations or inferences, but must instead proffer specific facts or objective evidence showing that a genuine issue of material fact exists requiring further proceedings. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III. Discussion

A. '702 (DCOM) Patent Family: Claim Construction

In their cross-motions for summary judgment, the parties raised the issue of the proper construction of a number of terms in each of the patents in suit. The Court will construe only those terms that are strictly necessary to the resolution of the parties' motions. Specifically, in addressing the infringement claims for the '702 family of patents, the Court will construe the term “multi-level multimedia security,” providing a construction for “multi-level ... security” and “multimedia,” in turn.⁵

1. Legal standards for claim construction

The district court has the “power and obligation to construe as a matter of law the meaning of language used in the patent claim.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir.1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). As a starting point, a claim term is to be given the “ordinary and customary meaning” it would have had to a person of ordinary skill in the art at the time of the invention. Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed.Cir.2005) ( en banc ); see also Dow Chemical Co. v. Sumitomo Chem. Co., Ltd., 257 F.3d 1364, 1372 (Fed.Cir.2001). To determine that meaning, the court must first look to how the words of the claims themselves define the scope of the patented invention, and then look to “those sources available to the public that show what a person of skill in the art would have understood [the] disputed claim language to mean.” Phillips, 415 F.3d at 1314; see also Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582–83 (Fed.Cir.1996). The court must construe the entire claim, including any preamble, so long as it gives life and meaning to the invention claimed. See Pitney Bowes, Inc. v. Hewlett–Packard Co., 182 F.3d...