Tuesday, May 07, 2013

Baron Services wins at CAFC by 2-1 vote

From Baron Services v. Media Weather in which Baron Services won a reversal by a 2-1 vote:

Baron Services, Inc., (“Baron”) appeals the orders of the United States District Court for the Northern District of Alabama awarding summary judgment of noninfringe- ment and attorney’s fees to Media Weather Innovations, LLC (“MWI”). Because the district court’s summary judgment order was premature, we vacate the court’s summary judgment and award of attorney’s fees and remand for further proceedings consistent with this opinion.

Footnote 5 deals with Judge Reyna's dissent:

The dissent appears to adopt that view of how in- fringement of the asserted claims must be determined. Dissent at 3. It finds relevant—as does MWI—that users of MWI’s systems provide a “self-designated location” for weather alerts. Id. Without proper claim construction, however, it seems difficult to know whether that distinction is important.

To calibrate interested potential litigants on costs related merely to summary judgment:

Shortly after prevailing on summary judgment, MWI filed a motion for attorney’s fees pursuant to 35 U.S.C. § 285, which the court also granted. In April 2012, the court entered judgment awarding MWI $243,757.45 for attorney’s fees.

Footnotes deal with certain Rules of Civil Procedure:

Baron did not file the affidavit normally required by Rule 56(d). However, an affidavit or declaration is not required in the Eleventh Circuit. Snook, 859 F.3d at 871 (“In this Circuit, a party opposing a motion for summary judgment need not file an affidavit pursuant to Rule 56([d]) . . . in order to invoke the protection of that Rule.”).


The dissent states that Baron has no “entitlement to th[e] discovery” of source code because it failed to “demonstrate good cause as to why the source code was relevant to the alleged infringement.” Dissent at 9. But “good cause” is required to be shown under Rule 26(b)(1) only if seeking broad discovery of “matter[s] relevant to the subject matter involved in the action.” Fed. R. Civ. P. 26(b)(1) (emphasis added); see, e.g., Fed. R. Civ. P. 26, Advisory Committee Notes, 2000 Amendment; In re Subpoena to Witzel, 531 F.3d 113, 118 (1st Cir. 2008). Baron seeks discovery of the source code as relevant to its claims; Baron’s burden under Rule 26(b)(1) is not good cause. It only has to show that the source code is relevant and likely to lead to admissible evidence—which it has clearly demonstrated. See id.

The majority observed

Therefore, under the circumstances here, it was improper for the district court to have refused Baron’s request to delay ruling on MWI’s summary judgment motion until Baron had the opportunity to access MWI’s source code and depose Ritterbusch and Fannin. See Metro. Life Ins. Co. v. Bancorp Servs., L.L.C., 527 F.3d 1330, 1338 (Fed. Cir. 2008) (reversing district court refusal to grant Rule 56(d) motion when discovery sought was the principal opportunity to contradict statements in declarations that a district court treated as truthful and dispositive); see also Wideman v. Shallowford Cmty. Hosp., Inc., 826 F.2d 1030, 1037 n.11 (11th Cir. 1987) (“[T]he proceedings in the district court took a bizarre turn when the court accepted the affidavits . . . in support of the defendants’ motion for summary judgment, yet refused to permit the plaintiffs to depose those same individuals. This is not a proper practice.”);

Footnotes 11 and 12 are addressed to the dissent:

The dissent claims that Baron should not be afforded the opportunity to depose Ritterbusch and Fannin because it made a “strategic choice” to delay those deposi- tions until after the summary judgment hearing. Dissent at 10. Baron noticed those depositions months before summary judgment briefing started. MWI finally offered Ritterbusch and Fannin the same day summary judgment briefing concluded and with notice of only a few business days. There was no “strategic choice” by Baron to re- schedule the depositions for a later date (that still fell months before the close of discovery) because of “the short notice and other scheduling conflicts.” D.E. 40-7 at 2.

The dissent asserts that there is no cause to permit additional discovery because Baron should have sought “protective relief from the court” to enable it to take discovery before summary judgment. Dissent at 10. But the dissent ignores the relief Baron sought that is the very subject of our opinion: Baron’s Rule 56(d) request.

Judge Reyna had a lengthy dissent.

The dissent included the text:

The majority also pays significant attention to Baron’s claims regarding its need for MWI’s source code, yet Baron has no absolute entitlement to this discovery given its failure to demonstrate good cause as to why the source code was relevant to the alleged infringement. J.A. 164−65. I find that the source code issue is but one part of Baron’s litany of unsubstantiated discovery grievances that feint towards evidence that is not in the record to divert attention from the unrebutted evidence that is in the record. E.g., Majority Op. 11−14.


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