Voter Verified, Inc. v. Election Sys. & Software, Inc.

• Decision Date: 29 July 2011
• Docket Number: Case No. 6:09-cv-1969-Orl-19KRS
• Parties: VOTER VERIFIED, INC., Plaintiff, v. ELECTION SYSTEM & SOFTWARE, INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

VOTER VERIFIED, INC., Plaintiff, v. ELECTION SYSTEM & SOFTWARE, INC., Defendant.

Case No. 6:09-cv-1969-Orl-19KRS

United States District Court Middle District of Florida Orlando Division

DONE and ORDERED: July 29, 2011

Order

This case comes before the Court on the following:

1. Third Motion for Summary Judgment by Voter Verified, Inc. (Doc. No. 168, filed June 13, 2011);

2. Corrected Third Motion for Summary Judgment by Voter Verified, Inc. (Doc. No. 170, filed June 21, 2011);

3. Memorandum in Opposition to Plaintiff's Third Motion for Summary Judgment by Election System & Software, Inc. (Doc. No. 175, filed July 13, 2011); and

4. Reply to Defendants' Memorandum in Opposition to Plaintiff's Third Motion for Summary Judgment (Doc. No. 181, filed July 27, 2011).

Background

I. Procedural History

On November 19, 2009, Voter Verified, Inc. ("VVI") filed the present action against Election Systems & Software, Inc. ("ES&S"). (Doc. No. 1.) The Complaint, seeking both damages andinjunctive relief, alleges that ES&S willfully infringed United States Patents Nos. 6,769,613 ("the '613 patent") and RE40,449 ("the '449 patent"). (Id. at 11-12.) ES&S denies VVI's allegations of infringement and seeks a declaratory judgment that: (1) the '613 and the '449 patents are invalid pursuant to 35 U.S.C. §§ 101, 102, 103, and 112; (2) the '613 patent is invalid pursuant to 35 U.S.C. § 251; and (3) ES&S is not infringing and has never infringed the '613 and '449 patents. (Doc. No. 17, filed Jan. 13, 2010.)

On April 28, 2010, VVI filed a Motion for Summary Judgment, arguing that there were no genuine issues of material fact relating to the direct infringement of claim 49 of the '613 and '449 patents. (Doc. No. 71 at 1.) VVI also moved for summary judgment on the validity of the asserted patents and the issue of intervening rights. (Id.) On May 28, 2010, ES&S responded in opposition to VVI's summary judgment motion and filed a Cross Motion for Summary Judgment, contending that: (1) the '613 patent cannot be infringed because it was surrendered; (2) claims 49, 56, 85, 93, and 94 of the '449 patent are not infringed; and (3) claims 49, 56, 85, 93, and 94 of the '449 patent are invalid as anticipated under 35 U.S.C. § 102. (Doc. No. 84.) Plaintiff's Motion for Summary Judgment was granted in part and denied in part. (Doc. No. 114 at 37-39.) The Motion was granted to the extent VVI sought a finding that: (1) the claims of the '449 patent are not invalid under 35 U.S.C. § 101; (2) the claims of the '449 patent, other than claim 94, are not invalid under 35 U.S.C. § 112; and (3) claims 1-48, 50-84, and 86-92 are not invalid under 35 U.S.C. § 102. (Id. at 37-38.) ES&S's Cross Motion for Summary Judgment was also denied in part and granted in part. (Id.) The Motion was granted to the extent ES&S sought a finding that: (1) the '613 patent was surrendered to the United States Patent and Trademark Office ("PTO"); (2) the Accused Systems do not infringe claims 49, 56, 85, and 93 of the '449 patent; (3) claim 94 of the '449 patent is invalid under 35 U.S.C.§ 112; and (4) the enumerated Risks Digest articles qualify as prior art. (Id. at 38.) ES&S was also granted leave to file a supplemental summary judgment motion addressing the issue of obviousness. (Id.)

On November 9, 2010, ES&S filed a Motion and Memorandum in Support of Invalidity of Claim 49 ofU.S. Patent No. RE40,449. (Doc. No. 119.) The Motion was granted to the extent ES&S sought a finding that claim 49 of the '449 patent is invalid as obvious under 35 U.S.C. § 103. (Doc. No. 135.) However, because ES&S did not address the obviousness of the remaining claims, the Court granted VVI's Second Motion for Summary Judgment to the extent it sought a finding that claims 1-48, 50-84, and 86-92 are valid. (Id. at 22.)

On June 9, 2011, ES&S filed a Motion for Summary Judgment of Non-Infringement of Claims 1-48, 50-55, 57-84, and 86-92 of U.S. Patent No. RE40,449 and Memorandum in Support. (Doc. No. 166.) In the Motion, ES&S argued that no product or combination of products sold by ES&S infringes claim 1, claim 25, or any dependent claim of the '449 patent. (Id.) On July 28, 2011, the Court granted ES&S's Motion, finding that VVI failed to create a genuine issue of material fact relating to whether ES&S infringed claim 1, claim 25, or any dependent claim of the '449 patent. (Doc. No. 184.)

On June 13, 2011, VVI filed a Third Motion for Summary Judgment. (Doc. No. 168.) VVI filed a Corrected Third Motion for Summary Judgment on June 21, 2011. (Doc. No. 170.) ES&S filed a memorandum in opposition on July 13, 2011, (Doc. No. 175), and VVI filed a reply on July 27, 2011, (Doc. No. 181).

II. The Asserted Patents

The patents at issue in the present case include the '613 and '449 patents (collectively, the "Asserted Patents"). The '613 patent issued on August 3, 2004. (Doc. No. 1-1 at 1.) On February 14, 2005, a reissue application for the '613 patent was filed. (Id. at 10.) On August 5, 2008, the '613 patent was surrendered to the United States Patent and Trademark Office ("PTO") and reissued as the '449 patent. (Id.) VVI is the owner by assignment of both the '613 and '449 patents. (Id. at 30.)

In general, the Asserted Patents involve a computer voting system that displays ballots for voting, instructs voters to input their selections, prints the votes of the voters, instructs the voters to review the printed ballots for accuracy, and then instructs the voters to submit acceptable printed ballots for tabulation. By way of example, claim 1 of the '449 patent recites:

1. A self-verifying voting system comprising: one or more voting stations comprising:

(a) one or more computer programs which operate in a computer to display general voting instructions, at least one election ballot showing the candidates and issues to be voted on, and directions to the voter for operation of the system; present the election ballot for voting and input of votes by the voter; accept input of the votes from the voter;

print out the election ballot according to which the voter voted with the votes of the voter printed thereon, so that the votes of the voter are readable on said election ballot by the voter and readable by a tabulation machine; record the votes in the computer; and compare the votes read by a ballot scanning machine with the votes recorded in the computer;

(b) a computer with at least one display device, at least once device to accept voting input from a voter, at least one data storage device, and sufficient memory to provide for the operation of said computer program in which said computer program runs;

(c) a printer connected to said computer for printing the election ballot according to which the voter voted;

(d) a ballot scanning means for reading the votes on the printed ballot printed according to the election ballot which the voter voted so that the votes shown on the printed ballot are compared by the computer program with the votes recorded in the computer for the voter;

(e) means for connecting said ballot scanning means to said computer; anda means for tabulating the printed ballots generated by said one or more voting stations.

Standard of Review

A party is entitled to summary judgment "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); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004). A dispute of fact is "material" if, under the applicable substantive law, it might affect the outcome of the case. Hickson Corp., 357 F.3d at 1259. A dispute of fact is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Id. at 1260. A court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id.; Anderson, 477 U.S. at 251-52.

The party moving for summary judgment has the burden of proving that: (1) there is no genuine issue as to any material fact, and (2) it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining whether the moving party has satisfied its burden, the court considers all inferences drawn from the underlying facts in the light most favorable to the party opposing the motion and resolves all reasonable doubts against the moving party. Anderson, 477 U.S. at 255. The court may not weigh conflicting evidence or weigh the credibility of the parties. Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 919 (11th Cir. 1993). If a reasonable fact finder could draw more than one inference from the facts and that inference creates an issue of material fact, a court must not grant summary judgment. Id. On the other hand, summary judgment must be granted "against a party who fails to make a showing sufficient to establish theexistence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322. In addition, when a claimant fails to produce "anything more than a repetition of his conclusory allegations," summary judgment for the movant is "not only proper but required." Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir. 1981).

Analysis

I. Infringement

VVI first moves for a finding of summary judgment against ES&S on the issue of the infringement of claims 1, 25, 53, and 54 of the '613 and '449 patents by ES&S's iVotronic Real Time Audit Log System and claims 51 and 53 of the '613 and '449 patent by ES&S's AutoMark System. (Doc. No. 170 at 1, 10.) VVI's arguments are not well taken. First, in the Order entered on September 29, 2010, ("September 29 Order"), the Court concluded that the '613 patent could not be infringed by ES&S because it had been surrendered to the PTO and reissued as the '449 patent. (Doc. No. 114 at 11-12.)...