Zamora Radio Llc v. Last.Fm
| Decision Date | 05 November 2010 |
| Docket Number | Case No. 09–20940–CIV. |
| Citation | 758 F.Supp.2d 1273 |
| Parties | ZAMORA RADIO, LLC, Plaintiff,v.LAST.FM, LTD., CBS Radio Inc., CBS Corp., Slacker, Inc., Pandora Media, Inc., Rhapsody America LLC, Realnetworks, Inc., DKCM, Inc., Soundpedia, Inc., AOL, LLC, Accuradio, LLC, and Yahoo! Inc., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
OPINION TEXT STARTS HERE
Phillip Edward Holden, The Alvarez Law Firm, Alejandro Alvarez, Coral Gables, FL, John F. Ward, David M. Hill, Michael G. Gabriel, Ward & Olivo, New York, NY, Annette Cristina Escobar, Chalon Tamara Allen, Edward Maurice Mullins, Astigarraga Davis Mullins & Grossman, Miami, FL, for Plaintiff.Andrew S. Brown, Weil Gotshal & Manges, Mark D. Baker, Tigran Vardanian, Quinn Emanuel Urquhart Oliver & Hedges, New York, NY, Annette Cristina Escobar, Edward Maurice Mullins, Chalon Tamara Allen, Astigarraga Davis Mullins & Grossman, Edward Soto, Robert S. Berezin, Weil Gotshal & Manges, Bruce Judson Berman, Carlton Fields, Samuel M. Sheldon, McDermott Will & Emery LLP, Stanley Howard Wakshlag, Kenny Nachwalter, P.A., Paul Joseph Schwiep, Coffey Burlington, Miami, FL, Edward R. Reines, Stefani C. Smith, Weil Gotshal & Manges LLP, Redwood Shores, CA, J. Pieter Van Es, Matthew P. Becker, Richard S. Stockton, Thomas J. Lerdal, Banner & Witcoff, Chicago, IL, Charles K. Verhoeven, Jennifer A. Kash, Linda J. Brewer, Richard H. Doss, Quinn Emanuel Urquhart & Sullivan, LLP, San Francisco, CA, for Defendants.
ORDER ON DEFENDANTS CBS RADIO, INC., CBS CORPORATION, AOL INC., AND LAST.FM LTD.'S MOTION FOR SUMMARY JUDGMENT OF NON–INFRINGEMENT
This matter is before the Court upon Defendants CBS Radio, Inc., CBS Corporation, AOL Inc., and Last.FM Ltd.'s (“Defendants”) Motion for Summary Judgment of Non–Infringement [192]. Previously, the Court issued the Claim Construction Order in this case on March 9, 2010 [D.E. 170]. We have reviewed the motion, the response, and the record in the case. For the following reasons, the motion is granted.
This is a patent infringement action concerning a U.S. Patent No. 6,349,339 (“the '399 Patent”) owned by Plaintiff Zamora Radio, LLC (“Zamora”). Issued on February 19, 2002, the '399 Patent concerns a streaming media system technology commonly referred to as “internet radio.” Defendants in this case are “internet radio” service providers who allow their customers to stream music and other web-based services to customers' personal computers, mobile phones or other compatible electronic devices. Users of Defendants' services in question do not have any ownership rights to the music or other data that Defendants stream for playback. Thus, users cannot rewind or replay the streamed data. They can, however, pause or skip the currently played song or audio segment.
On April 10, 2009, Zamora brought this patent infringement action claiming that Defendants' products and services utilize the systems and methods disclosed and claimed in its '399 Patent. Defendants answered the Complaint and filed counterclaims for non-infringement and invalidity.
The patent-in-suit, titled “System and Method for Utilizing Data Packets” sets forth 43 claims. Generally speaking, the '399 Patent relates to a system and method for providing a predetermined group of data packets to a user who may utilize (e.g. review, listen, watch, read, etc.) such data packets with a user computing arrangement “UCA.” See '399 Patent 1:44–55 [D.E. 1 Ex. 1]. The UCA then executes a set of instructions to utilize the data packets in the predetermined order, whereby the user is allowed to skip ahead to the next data packet in the predetermined order but is prevented from modifying that order or replaying a utilized data packet. Id.
Four of the Defendants, CBS Radio Inc., CBS Corporation, AOL Inc., and Last.FM Ltd., now move for summary judgment that their radio internet products do not infringe any of the asserted claims of the motion arguing that: 1) the motion should be denied as moot in view of Plaintiff's acknowledgment of non-infringement on certain one limitation; 2) the motion should also be denied because all discovery relevant to Defendants' motion was not completed by agreement of the parties; 3) existence of genuine issues of material fact preclude summary judgment of non-infringement at this stage; and 4) Plaintiff may prove infringement by equivalents at trial.
Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is 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). Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). Rule 56(e) “requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Thus, the non-moving party “may not rest upon the mere allegations or denials of his pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
In determining whether a genuine issue of material fact exists, the court must not make credibility determinations or weigh conflicting evidence. Id. at 255, 106 S.Ct. 2505. Rather, the court must view the evidence in the light most favorable to the non-moving party, drawing all “justifiable inferences” in its favor. Id. (internal citation omitted); see Atlanta Attachment Co. v. Leggett & Platt, Inc., 516 F.3d 1361, 1365 (Fed.Cir.2008) (internal citation omitted). The Federal Circuit has held that “summary judgment is as appropriate in patent case as in any other ....” Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 835 (Fed.Cir.1984).
A patent infringement analysis involves two steps: claim construction and then the application of the construed claim to the accused process or product. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). The first step, claim construction, has been held to be purely a matter of law. See Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en banc). The second step, application of the claim to the accused product, is a fact-specific inquiry. See Kustom Signals, Inc. v. Applied Concepts, Inc., 264 F.3d 1326, 1332 (Fed.Cir.2001) (). Summary judgment, therefore, is appropriate in patent infringement suits when it is apparent that only one conclusion regarding infringement could be reached by a reasonable jury. See Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1323 (Fed.Cir.2001).
The patentee asserting infringement bears the burden of proof by a preponderance of the evidence. Indeed, the Federal Circuit expressly stated that the “patent owner has always borne the burden of proving infringement.” Wilson Sporting Goods Co. v. David Geoffrey & Assocs., 904 F.2d 677, 685 (Fed.Cir.1990). Thus, “[s]ince the ultimate burden of proving infringement rests with the patentee, an accused infringer seeking summary judgment of non-infringement may meet its initial responsibility either by providing evidence that would preclude a finding of infringement, or by showing that the evidence on file fails to establish a material issue of fact essential to the patentee's case.” Novartis Corp. v. Ben Venue Labs., 271 F.3d 1043, 1046 (Fed.Cir.2001).
“[O]n issues in which the nonmovant bears the burden of proof, in contrast to those in which the movant bears the burden, the movant need not ‘produce evidence’ showing the absence of a genuine issue of material fact in order to properly support its summary judgment motion.” Exigent Tech., Inc. v. Atrana Solutions, Inc., 442 F.3d 1301, 1307 (Fed.Cir.2006) (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548). In other words, “nothing more is required than the filing of a summary judgment motion stating that the patentee had no evidence of infringement and pointing to the specific ways in which accused systems did not meet the claim limitations.” Id. at 1309, 106 S.Ct. 2548. Once the movant has satisfied its initial burden, the “burden of production then shift[s] to [the non-movant] to identify genuine issue that preclude summary judgment.” Optivus Tech., Inc. v. Ion Beam Applications S.A., 469 F.3d 978, 990 (Fed.Cir.2006).
A patentee may sue for direct infringement under 35 U.S.C. § 271(a):
Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefore, infringes the patent.
The “making, using, or selling of a patented invention is the usual meaning of the expression ‘direct infringement.’ ” Joy Techs. Inc. v. Flakt, Inc., 6 F.3d 770, 773 (Fed.Cir.1993).
Using the properly construed claims as a guide, the trier of fact must determine whether every claim limitation or its equivalent...
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