Tuesday, November 28, 2017

Rembrandt loses appeal at CAFC

From Rembrandt v. Apple

We apply the law of the regional circuit when reviewing
a district court’s grant of summary judgment. Classen
Immunotherapies, Inc. v. Elan Pharm., Inc., 786 F.3d 892,
896 (Fed. Cir. 2015). The Ninth Circuit reviews a grant of
summary judgment de novo. Ariz. Dream Act Coalition v.
Brewer, 818 F.3d 901, 908 (9th Cir. 2016). A “judge’s
function at summary judgment is not to weigh the evidence
and determine the truth of the matter but to determine
whether there is a genuine issue for trial.” Tolan
v. Cotton, 134 S. Ct. 1861, 1866 (2014) (internal quotation
marks and citation omitted). The evidence, and inferences
drawn therefrom, must be viewed in the light most
favorable to the opposing party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986)

The word "parrot" arises:

We have also explained that “the concept of equivalency
cannot embrace a structure that is specifically
excluded from the scope of the claims.” Dolly, Inc. v.
Spalding & Evenflo Cos., 16 F.3d 394, 400 (Fed. Cir.
1994). An argument under the doctrine of equivalents
fails if it “renders a claim limitation inconsequential or
ineffective.” Akzo Nobel Coatings, Inc. v. Dow Chem. Co.,
811 F.3d 1334, 1342 (Fed. Cir. 2016). As the Supreme
Court instructed, “if a theory of equivalence would entirely
vitiate a particular claim element, partial or complete
judgment should be rendered by the court, as there would
be no further material issue for the jury to resolve.”
Warner-Jenkinson, 520 U.S. at 39 n.8.

Rembrandt largely parrots arguments supplied by its
expert, Dr. Tygar, in arguing infringement under the
doctrine of equivalents.

Of doctrine of equivalents:

(“[E]ven if the testimony were of
proper scope, it is conclusory, stating only that the product
would ‘operate the same,’ ‘perform [the functions
described in the patent] in essentially the same way,’ and
‘would [produce] the same result.’ It offers no explanation
beyond these conclusory statements.” (citation omitted)).
As in Augme, conclusory testimony from Dr. Tygar on the
“way” prong is insufficient to create a genuine issue of
material fact for trial regarding infringement by equivalents.
Cf. Perkin–Elmer Corp. v. Westinghouse Elec.
Corp., 822 F.2d 1528, 1532 n.6 (Fed. Cir. 1987) (“That a
claimed invention and an accused device may perform
substantially the same function and may achieve the
same result will not make the latter an infringement
under the doctrine of equivalents where it performs the
function and achieves the result in a substantially different


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