Endeca/Walmart don't infringe Speedtrack's US '360

From within the decision Speedtrack v. Endeca and WalMart:

On March 3, 2011, the PTO issued its decision in the
reexamination proceedings, confirming the patentability
of the ’360 patent with an amendment—the addition of
one independent claim.

The topic of judicial estoppel arose:

Judicial estoppel, which is not unique to patent law, is
reviewed under the law of the regional circuit in which
the trial court sits. Wang Labs., Inc. v. Applied Computer
Sci.,, Inc., 958 F.2d 355, 358 (Fed. Cir. 1992). The Ninth
Circuit reviews the district court’s application of judicial
estoppel for abuse of discretion. Hamilton v. State Farm
Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001).
Judicial estoppel is an equitable doctrine that precludes
a party from gaining an advantage by asserting
one position, and then later seeking another advantage by
taking a clearly inconsistent position. Rissetto v. Plumbers
& Steamfitters Local 343, 94 F.3d 597, 600–01 (9th Cir.
1996). Courts invoke judicial estoppel for “general consideration[
s] of the orderly administration of justice and
regard for the dignity of judicial proceedings,” and to
“protect against a litigant playing fast and loose with the
courts.” Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.
1990).

The estoppel argument related to positions by Endeca in the
re-exam:

The district court did not abuse its discretion in refusing
to apply judicial estoppel in this case. Speedtrack
argues that Endeca’s arguments related to the disputed
term “category description” were inconsistent with Endeca’s
earlier position. In particular, Speedtrack points to
Endeca’s request for reexamination of the ’360 patent and
the invalidity arguments it presented in the request to
the PTO—namely, contentions pertaining to U.S. Patent
No. 5,062,074 (“Kleinberger”). Speedtrack contends that
Endeca’s argument before the PTO depended in significant
part on the assertion that the Kleinberger reference’s
associated numeric identifiers satisfied the “category
description” limitation in claim 1.

AND

Likewise,
even if Endeca had taken such modified positions
post-reexamination, this court is not convinced that
Endeca was “successful” enough with its previous arguments
for judicial estoppel to attach, and thus, there was
no “the perception that either the first or the second court
was misled.” New Hampshire, 532 U.S. at 750 (internal
quotation marks and citation omitted). The district court
did not render decisions on infringement or invalidity
prior to the reexamination proceedings, and the PTO
itself never adopted Endeca’s contentions—the PTO
confirmed the patentability of the ’360 patent without any
narrowing amendments.

**Note: Endeca Technologies, Inc.
(“Endeca”) subsequently intervened against Speedtrack
seeking a declaratory judgment of noninfringement and
invalidity, claiming the allegedly infringing platform
utilized in Walmart’s online retail website was its proprietary
product.