Tuesday, June 29, 2021

CAFC affirms WD Washington. Zillow wins. Corus loses.

Zillow survived an appeal by Corus at the CAFC:

Appellant appeals a decision of the United States District Court for the Western District of Washington granting Zillow Group, Inc.’s motion for summary judgment that Zillow did not infringe Appellant’s patent. Corus claims that the district court erred in granting summary judgment of noninfringement based on incorrect claim constructions and that the court erred in striking portions of its expert witness report. We affirm

On October 30, 2019, Zillow moved to exclude several of Corus’s infringement theories and portions of Dr. Martin’s expert report that were untimely disclosed. ECF No. 58 at 1. The court granted the motion on January 30, 2020. ECF No. 114 at 24. On February 18, 2020, the district court issued an order granting in part Zillow’s motion for summary judgment of noninfringement. J.A. 1–49, ECF No. 138. The district court agreed with Zillow that “search,” as stated within the construction of the “database” limitation, required that the user be capable of obtaining “new” property information and that for such “new” searches in Zillow’s apps, “all searches in the apps rely on remote databases on the Internet.” J.A. 2185; see also J.A. 21–22 (the district court opining that “the alleged functionality of the Zillow Apps does not meet the database limitations.”). It was undisputed that using the Zillow Mobile Apps, property information is (i) obtained from Zillow’s remote servers, (ii) placed in memory on the mobile device, and (iii) retrieved from memory and displayed to the user when a user clicks a property icon. J.A. 22. The district court found it relevant, however, that “a user cannot obtain additional property information without connecting back through the Internet to the remote database.” Id. (emphasis added). Under this view, the district court found that “the ‘retrieval’ of property information from working memory [on the mobile device], where the application is not designed to obtain any new information except through internet access to a remote database does not mean that the working memory is a ‘database’” for purposes of meeting the claim limitation. J.A. 23

We are not persuaded by Corus’s argument that the amendments were not made to distinguish the invention from “crowd-sourced” or “fused” system, but rather to overcome the specific citation to the prior art that taught the use of GPS alone. The language of the amended claims appears to make the disclaimers found by the district court. In addition, an amendment is typically made to overcome an examiner’s rejection. Corus unpersuasively argues it made its claim amendment at the examiner’s suggestion rather than to overcome the obviousness rejection. We therefore agree with the district court that Corus lacked evidence of the “cellular-based location data” limitation because the Zillow Apps do not themselves determine a user’s location. Rather, they request location information from the operating system (Apple iOS or Google Android). J.A. 13, Appellee’s Br. 43. And as the district court explained, even if the expert testimony cited by Corus regarding Apple and Google’s location functionality (which the district court excluded) “was based on personal knowledge, it is not evidence that the Zillow Apps” meet the claim limitation because at most the testimony suggests that the Zillow Apps might utilize “fused” or “crowd-sourced” location data. J.A. 37–38. Accordingly, we affirm the district court’s determination of noninfringement based on the “cellular-based location data” limitation.


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