Case 6:19-cv-00513-ADA Document 86 Filed 04/02/21 Page 1 of 21
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`Case No. 6:19-CV-00513-ADA
`
`JURY TRIAL DEMANDED
`
`CloudofChange, LLC,
`Plaintiff,
`
`v.
`
`NCR Corporation,
`
`Defendant.
`
`PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S
`MOTION FOR SUMMARY JUDGMENT OF INVALIDITY
`
` PUBLIC VERSION
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`Lightspeed Ex. 1012.1
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`

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`Case 6:19-cv-00513-ADA Document 86 Filed 04/02/21 Page 2 of 21
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`TABLE OF CONTENTS
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`INTRODUCTION .............................................................................................................. 1
`I.
`FACTUAL BACKGROUND ............................................................................................. 1
`II.
`LEGAL STANDARD ......................................................................................................... 3
`III.
`ARGUMENT ...................................................................................................................... 5
`IV.
`A. Attorney Argument Is Not Clear and Convincing Evidence that the Asserted Claims are
`Anticipated .......................................................................................................................... 6
`B. There is a Battle of the Experts—Not Clear and Convincing Evidence that the Asserted
`Claims are Anticipated ........................................................................................................ 6
`1. Local Server ..................................................................................................................... 7
`2.
`Internet Connection .......................................................................................................... 8
`3. Vendor Subscription Service ............................................................................................ 9
`4. Testing While Said POS Terminals Are Simultaneously in Use ................................... 10
`5. Software as a Subscription (SaaS) ................................................................................. 11
`6. Open-Source, Non-Proprietary Technologies ................................................................ 12
`7. Without Specialized Hardware or Software ................................................................... 13
`8. POS Terminal Interaction with POS Builder ................................................................. 14
`C. CloudofChange Has Set Forth Specific Facts Showing there are Genuine Issues for Trial
`........................................................................................................................................... 15
`CONCLUSION ................................................................................................................. 15
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`V.
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`ii 
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`Lightspeed Ex. 1012.2
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`

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`Case 6:19-cv-00513-ADA Document 86 Filed 04/02/21 Page 3 of 21
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`
`Cases
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Anderson v. Liberty Lobby, Inc.,
`
`477 U.S. 242 (1986) ........................................................................................................ 3, 4
` 
`Celotex Corp. v. Catrett,
`
`477 U.S. 317 (1986) ........................................................................................................ 3, 4
`
`Eli Lilly & Co. v. Barr Labs., Inc.,
`
`251 F.3d 955 (Fed. Cir. 2001)............................................................................................. 4
`
`Enzo Biochem v. Gen-Probe, Inc.,
`
`424 F.3d 1276 (Fed. Cir. 2005)........................................................................... 4, 6, 13, 14
`
`In re Gabapentin Patent Litig.,
`
`503 F.3d 1254 (Fed. Cir. 2007)........................................................................................... 5
`
`In re NTP Inc.,
`654 F.3d 1279 (Fed. Cir. 2011)......................................................................................... 11
`
`
`In re Schreiber,
`128 F.3d 1473 (Fed. Cir. 1997)......................................................................................... 10
`
` 
`Invitrogen Corp. v. Biocrest Mfg., L.P.,
`
`424 F.3d 1374 (Fed.Cir.2005)............................................................................................. 4
`
`Invitrogen Corp. v. Clontech Labs., Inc.,
`
`429 F.3d 1052 (Fed. Cir. 2005)........................................................................... 4, 6, 13, 14
`
`KSR Int’l Co. v. Teleflex, Inc.,
`
`550 U.S. 398 (2007) ............................................................................................................ 5
`
`Medical Instrumentation and Diagnostics Corp. v. Elekta AB,
`
`344 F.3d 1205 (Fed. Cir. 2003)........................................................................................... 5
`
`Microsoft Corp. v. i4i Ltd. P'ship,
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`564 U.S. 91 (2011) .............................................................................................................. 4
`
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`iii 
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`Lightspeed Ex. 1012.3
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`Case 6:19-cv-00513-ADA Document 86 Filed 04/02/21 Page 4 of 21
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`MiMedx Grp., Inc. v. Tissue Transplant Tech., Ltd.,
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`354 F.Supp.3d 742 (W.D. Tex. 2018) ................................................................................. 3
`
`Oney v. Ratliff,
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`182 F.3d 893 (Fed.Cir.1999)............................................................................................... 4
`
`Zoltek Corp. v. U.S.,
`
`95 Fed. Cl. 681 (Fed. Cl. Dec. 16, 2010) ............................................................................ 5
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`Statutes
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`35 U.S.C. § 282 ............................................................................................................................... 4
`
`Rules
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`FED. R. CIV. P. 56(a) ........................................................................................................................ 3
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`iv 
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`Lightspeed Ex. 1012.4
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`Case 6:19-cv-00513-ADA Document 86 Filed 04/02/21 Page 5 of 21
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`Plaintiff CloudofChange, LLC (“CloudofChange” or “Plaintiff”) files this Response in
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`Opposition to Defendant NCR Corporation’s (“NCR” or “Defendant”) Motion for Summary
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`Judgment of Invalidity (Dkt. 66 or “Invalidity MSJ”).
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`I.
`
`INTRODUCTION
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`Either NCR’s Invalidity MSJ amounts to nothing more than conclusory attorney argument
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`in an attempt to read out claim limitations or NCR’s Invalidity MSJ is a disguised rehash of the
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`opinions of its technical expert Sandeep Chatterjee, Ph.D. (“Dr. Chatterjee”), regarding the Woycik
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`reference, which are specifically disputed point by point by CloudofChange’s technical expert,
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`Gregory G. Crouse (“Mr. Crouse”). Thus, NCR’s Invalidity MSJ amounts to a classic battle of
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`the experts. As set forth herein, there are, at a minimum, significant factual disputes regarding
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`each of the eight “technical areas” addressed in NCR’s Invalidity MSJ as evidenced by
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`Mr. Crouse’s opinions and the Woycik reference itself. As such, genuine issues of material fact
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`exist in the record, and summary judgment is not appropriate.1
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`II.
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`FACTUAL BACKGROUND
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`Prior to the patents-in-suit, point of sale systems were tethered to in-store servers and
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`required expensive and time-consuming manual software coding for store and restaurant owners
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`to make even minor changes to menu items or product offerings. Plaintiff’s inventions for the
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`first time removed the requirement of maintaining on site computer servers for point of sale
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`(“POS”) systems and provided an inexpensive and efficient method “for online, web-based point
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`of sale (POS) building and configuration, which can assist non-expert business operators in
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`                                                            
`1 NCR’s Invalidity MSJ includes an inappropriate, alternative request that if the Court finds the
`Asserted Claims distinguishable over Woycik, “then NCR submits that NCR Silver does not
`infringe.” Dkt. 66, p. 16. In response, CloudofChange incorporates by reference its response in
`opposition to NCR’s Noninfringement MSJ, filed concurrently herewith.
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`
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`1
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`Lightspeed Ex. 1012.5
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`Case 6:19-cv-00513-ADA Document 86 Filed 04/02/21 Page 6 of 21
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`building, editing and testing a point of sale system to manage their businesses.” Dkt. 66-1, ’640
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`Patent, Abstract. An example of a point of sale touch screen in a pretzel store may include touch
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`keys for pretzels and for drinks, with secondary screens displaying specific product keys for
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`ordering different types of pretzels, drinks, and pretzel toppings. See id., 2:35-42, Fig. 1.
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`Historically, “practice in the field of assembling point of sale systems includes manually coding
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`front-of-screen information … by a business expert with the help of a programmer or data expert.”
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`Id., 1:20-26. Further, since POS screen changes are difficult, POS systems assembled manually
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`are prone to mistakes and time-consuming. See id., 1:33-35. As such, prior to the Plaintiff’s
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`inventions, “store owners tend[ed] to retain older, inaccurate, out-of-date POS screens in order to
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`avoid the POS screen editing process.” Id., 1:35-38.
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`Inventors Wayne Baratta and Quentin Olson developed systems “for building a point of
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`sale (POS) system to manage business operations…from a single branch to a large chain of
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`stores.” Id., 1:11-14. These inventions are described and claimed in the ’640 Patent, which was
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`filed on February 5, 2008, and its continuation, the ’012 Patent. These inventions solve problems
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`in the prior art by allowing utilization of the cloud to remove the requirement of on site servers,
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`and reducing the need for manually coding POS systems with the help of a programmer or data
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`expert. See, e.g., id., 1:20-40. The web-based point of sale (POS) builder system, as described
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`in the common specification of the ’640 and ’012 Patents, provides for a back-office which
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`supports numerous point of sale terminals. See id., Fig. 3. The patented technology also enables
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`a store operator, who does not have to be technically trained, to edit and test the store’s screens.
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`See id., 2:66-67.
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`While the Woycik reference was filed on May 1, 2007, about nine-months prior to the
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`’640 Patent, as discussed in detail in Mr. Crouse’s report and below, Woycik does not anticipate
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`2
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`Lightspeed Ex. 1012.6
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`Case 6:19-cv-00513-ADA Document 86 Filed 04/02/21 Page 7 of 21
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`the Asserted Patents. Woycik is entitled “Computer-based Ordering System” and describes as
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`its objective “to provide an improved computer-based ordering system for ordering goods and
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`services.” Dkt. 66-4, Woycik, ¶ [0010] (emphasis added). Very simply, there are significant
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`factual disputes between the expert witnesses for each side regarding Woycik, including, but not
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`limited to, whether or not Woycik:
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`requires a local server;
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`relies on communications over a LAN (not the internet);
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`
`
`
`teaches a “vendor subscription service;”
` allows testing of POS screens iteratively in real time while the POS terminals
`are simultaneously in use;
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`
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`is usable to deliver POS application solutions using software as a subscription
`(SAAS);
` discloses a web-based POS builder system;
`
`requires specialized hardware or software; and
` discloses POS terminals that interact with the administrative tool on the
`remote server.
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`III. LEGAL STANDARD
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`Summary judgment should only be granted “if the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R.
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`CIV. P. 56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could
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`return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
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`(1986). A fact is material only if it might affect the outcome of the suit under governing law. Id.
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`The movant has the “initial responsibility of informing the district court of the basis for its motion,
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`and identifying those portions of the pleadings, depositions, answers to interrogatories, and
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`admissions on file, together with the affidavits, if any, which it believes demonstrate the absence
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`of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal
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`3
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`Lightspeed Ex. 1012.7
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`Case 6:19-cv-00513-ADA Document 86 Filed 04/02/21 Page 8 of 21
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`citations omitted). Once this initial burden is met, the burden shifts to the nonmoving party, who
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`“must set forth specific facts showing that there is a genuine issue for trial.” Id. at 322, n.3. In
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`deciding a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and
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`all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.
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`A patent is presumed valid upon issuance from the United States Patent and Trademark
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`Office, and the “burden of establishing invalidity of a patent or any claim thereof shall rest on the
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`party asserting such invalidity.” 35 U.S.C. § 282. Overcoming this presumption requires the party
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`seeking to invalidate to prove invalidity by clear and convincing evidence. Microsoft Corp. v. i4i
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`Ltd. P’ship, 564 U.S. 91, 95 (2011). This standard applies at the summary judgment stage.
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`Invitrogen Corp. v. Biocrest Mfg., L.P., 424 F.3d 1374, 1378 (Fed.Cir.2005). Regarding the
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`standards for summary judgment in the context of a patent case, “[a]lthough anticipation is a
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`question of fact, it still may be decided on summary judgment if the record reveals no genuine
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`dispute of material fact.” Oney v. Ratliff, 182 F.3d 893, 895 (Fed.Cir.1999).
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`Thus, in order to prevail on summary judgment, the movant on the issue of invalidity “must
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`submit such clear and convincing evidence of invalidity so that no reasonable jury could find
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`otherwise.” Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955, 962 (Fed. Cir. 2001). If the decisive
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`determination of invalidity depends on resolution of material factual differences, summary
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`judgment is inappropriate. See Invitrogen Corp. v. Clontech Labs., Inc., 429 F.3d 1052, 1069 (Fed.
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`Cir. 2005). Attorney argument is no substitute for evidence. See Enzo Biochem v. Gen-Probe,
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`Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005); see also Invitrogen, 429 F.3d at 1071 (“Unsubstantiated
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`attorney argument regarding the meaning of technical evidence is no substitute for competent,
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`substantiated expert testimony. It does not, and cannot, support [the] burden on summary
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`judgment.”).
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`4
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`Lightspeed Ex. 1012.8
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`Case 6:19-cv-00513-ADA Document 86 Filed 04/02/21 Page 9 of 21
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`Moreover, summary judgment is never appropriate where the parties have proffered
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`conflicting expert opinions. See In re Gabapentin Patent Litig., 503 F.3d 1254, 1259-62 (Fed. Cir.
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`2007) (reversing summary judgment when the parties had proffered conflicting expert opinions).2
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`Any such “battle of the experts” demonstrates that the moving party has not clearly established
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`their invalidity by anticipation defense by the clear and convincing evidence standard necessary to
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`grant summary judgment. See MiMedx Grp., Inc. v. Tissue Transplant Tech., Ltd., 354 F.Supp.3d
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`742, 755 (W.D. Tex. 2018) (internal citations omitted).
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`IV. ARGUMENT
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`NCR’s Invalidity MSJ fails for two fundamental reasons: 1) it is either based on attorney
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`argument, or 2) on expert opinions specifically disputed by Plaintiff’s expert—thereby becoming
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`a quintessential battle of the experts. In addition, NCR erroneously uses its Invalidity MSJ as an
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`opportunity to skirt page limits and to respond to Mr. Crouse’s Rebuttal Report, rather than to
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`provide clear and convincing evidence that the Asserted Claims are anticipated by a particular
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`reference, which is contrary to the rules and docket control order governing this case.
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`Strangely and inappropriately, although NCR simultaneously filed an MSJ of non-
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`infringement in a separate motion, it throws in a one-sentence request at the conclusion of several
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`                                                            
`2 See Medical Instrumentation and Diagnostics Corp. v. Elekta AB, 344 F.3d 1205, 1220 (Fed. Cir.
`2003) (explaining where a non-moving party presents an expert who “quote[s] particular portions
`of the references that [are] relevant for each of the claim limitations...[does] not simply make
`conclusory statement[s] that, in his opinion, the claims [are] invalid...and for each claim
`limitation...connect[s] it with disclosures in the prior art that he believe[s] [teach] each particular
`limitation,” then to the extent that such assertions conflict with similarly specific testimony by the
`patent holder’s expert, there exists a triable issue of fact); see also Zoltek Corp. v. U.S., 95 Fed.
`Cl. 681, 693 (Fed. Cl. Dec. 16, 2010) (citing KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 427
`(2007)).
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`5
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`Lightspeed Ex. 1012.9
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`Case 6:19-cv-00513-ADA Document 86 Filed 04/02/21 Page 10 of 21
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`paragraphs of its invalidity MSJ, without citation to any evidence, that it is also entitled to an MSJ
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`of non-infringement. For the reasons discussed below, NCR’s Invalidity MSJ should be denied.
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`A.
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`Attorney Argument Is Not Clear and Convincing Evidence that the Asserted
`Claims are Anticipated
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`In its Invalidity MSJ, apparently mindful of the fact that MSJ’s based on conflicting expert
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`opinions fail as a matter of law, NCR cites only once, and appends, its entire expert report of
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`invalidity by Dr. Chatterjee as “clear and convincing” evidence that the Asserted Claims are
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`anticipated by US2007265935 (“Woycik”). See Dkt. 66, p. 9. Then, NCR identifies eight
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`“technical areas” discussed in detail in Mr. Crouse’s Rebuttal Report which NCR erroneously
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`alleges have “little, if anything, to do with the limitations recited in CloudofChange’s Asserted
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`Claims” and proceeds to provide attorney argument in attempted rebuttal to Mr. Crouse’s expert
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`opinions. Dkt. 66, p. 9. NCR’s Invalidity MSJ must be denied because attorney argument is no
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`substitute for clear and convincing evidence. See Enzo Biochem, 424 F.3d at 1284; see also
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`Invitrogen Corp., 429 F.3d at 1069. The experts dispute the facts made the basis of NCR’s MSJ,
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`and disputed expert opinions paraphrased as attorney argument provide no basis for an MSJ.
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`B.
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`There is a Battle of the Experts—Not Clear and Convincing Evidence that
`the Asserted Claims are Anticipated
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`While NCR deliberately avoids specific citation to Dr. Chatterjee’s report, NCR’s attorney
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`arguments are really just regurgitations thereof. But, NCR’s attempt to shroud its contradicted,
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`expert testimony must fail. Importantly, and as set forth in Plaintiff’s Daubert Motion to Exclude
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`the Invalidity Opinions and Testimony of Dr. Chatterjee, his opinions are not clear and convincing,
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`particularly since his deposition testimony demonstrates that he does not understand the applicable
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`legal standards, which renders his opinions unreliable. See Dkt. 78. For example, Dr. Chatterjee
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`erroneously combines multiple references to show anticipation. See Dkt. 78, pp. 5-7.
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`6
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`Lightspeed Ex. 1012.10
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`Case 6:19-cv-00513-ADA Document 86 Filed 04/02/21 Page 11 of 21
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`Substantively, each of the “technical areas” described in Mr. Crouse’s Rebuttal Report
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`clearly analyzes the language of the Asserted Claims and highlights how Woycik fails to anticipate
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`each and every claim of the Asserted Patents.3
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`1.
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`Local Server
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`Woycik requires a local server in each of its described embodiments, therefore Woycik does
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`not teach key benefits of the Asserted Patents. NCR’s attempts to explain away Woycik’s clear
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`statements as to the advantages of the local server in its disclosed POS system fail on their face.
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`Asserted Claim 5 states, inter alia, “the web-based point of sale (POS) builder system of claim
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`1…wherein no on site, in-store server is required.” Dkt. 66-1, ’640 Patent, Claim 1. In contrast,
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`Woycik makes it clear that stores using the Woycik POS system “include at least one local server
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`16 and at least one client kiosk 30.” Dkt. 66-4, Woycik, [0071]. Moreover, the local, on site server
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`allows “administration” from “any client kiosk (30, Fig. 1; 80 Fig. 3) configured to communicate
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`with the server 16, 82.” Id.
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`
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`NCR attempts to avoid the clearly described advantages of an on site server explained in
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`Woycik by citing an alternate embodiment wherein the local server resides in a (still on site) local
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`kiosk 30. Dkt. 66, p. 11 (citing Dkt. 66-4, Woycik, [0072]). However, NCR’s argument is
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`unavailing. The cited embodiment does not state that the local, on site server does not exist; rather,
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`the embodiment merely provides that the on site, local kiosk 30 operates as both the on site server
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`and the on site kiosk. Dkt. 66-4, Woycik, [0072]. Accordingly, the embodiment fails to anticipate
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`                                                            
`3 CloudofChange does not dispute that the prior art discloses POS builder software. The ʼ640
`Patent admits as much, explaining: “U.S. Pat. No. 7,051,091 Bl (Cohen et al.) discloses a
`configuration builder useful in configuring software containing hardware units which are
`serviced by a center which services a multiplicity of similar units having a plurality of different
`configurations.” Dkt. 66-1, ʼ640 Patent, 1:50-55 (emphasis added). As set forth in this Response,
`CloudofChange does dispute, including with evidence and expert testimony, that the prior art (for
`example, Woycik) anticipates the web-based point of sale (POS) builder system recited in the
`Asserted Claims.
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`7
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`Lightspeed Ex. 1012.11
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`

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`Case 6:19-cv-00513-ADA Document 86 Filed 04/02/21 Page 12 of 21
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`the language of the Asserted Claims because it explicitly requires an on site server.
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`Moreover, in each embodiment in Woycik, illustrated in Figure 1, the on site server 16 is
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`shown within one of the two “stores.” In the different embodiments, the local server/local server
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`kiosk 16 performs different functions, such as interacting with a remote client 36 (Dkt. 66-4,
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`Woycik, [0074]; Fig. 1), interacting directly with the client kiosks 30 via the LAN network (id.),
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`or, wherein the local server and kiosk are the same, interacting directly with the client 30 (Id.,
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`[0072]). Accordingly, Woycik discloses no embodiment wherein the on site server does not exist
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`in the store. NCR’s attorney arguments to the contrary do not make it so. Accordingly, NCR has
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`not shown, and cannot show, that Woycik teaches the specific claim limitations of the Asserted
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`Claims because Woycik, specifically and repeatedly, discloses a POS system which requires a
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`local, in-store, on-site, server.
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`Conclusively to this point, NCR is correct that the on site, local server/kiosk is not an
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`indication of some drawback in Woycik. Dkt. 66, p. 10. However, the on site, local server/kiosk
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`does preclude a finding that Woycik anticipates the Asserted Claims because Woycik, through its
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`on site server requirement, cannot teach each and every claim limitation of the Asserted Patents.
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`See, e.g., Dkt. 66-1, Claim 1 (“wherein web server software resides and is hosted on said vendor’s
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`remote servers”), Claim 4 (“wherein no on site, in-store server is required”); see also Dkt. 66-2,
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`’012 Patent, Claim 1 (“POS builder interface configured to be accessible via network
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`communication with said web server over a communications network”). Accordingly, a simple
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`reading of Woycik and statements made in the Rebuttal Report make clear that Woycik does not
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`teach the Asserted Claims, and thus Woycik cannot anticipate each and every limitation of the
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`Asserted Claims. The MSJ of invalidity by anticipation should be denied on this basis alone.
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`2.
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`Internet Connection
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`Similarly, NCR improperly attempts to read out language of the Asserted Claims by citing
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`8
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`Lightspeed Ex. 1012.12
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`Case 6:19-cv-00513-ADA Document 86 Filed 04/02/21 Page 13 of 21
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`various provisions of Woycik out of context, which it contends suggest “internet connection.”
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`However, as described in Woycik and discussed in Mr. Crouse’s Rebuttal Report, the Woycik POS
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`system relies on communications over a LAN, and does not disclose the limitation in the Asserted
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`Claims. Dkt. 66-7, Crouse Rebuttal Report, ¶ 43 (citing Dkt. 66-4, Woycik, [0074] (“the cash
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`register 32 or another device on the network 40 can be connected to a credit card payment center…
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`via the Internet 18”)).
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`Notably, NCR fails to identify which elements of the Asserted Claims it believes to be
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`disclosed in its vaguely cited portions of Woycik, likely because the cited portions of Woycik
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`describe how a remote server connects to the “local servers and/or client kiosks” to “run a
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`diagnostic” or “restore a previously working kiosk” by accessing a “web installation service
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`provided by the remote server.” Dkt. 66-4, Woycik, [0123], [0124]. These sections of Woycik
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`make no mention of any “internet connection” between the POS terminals to a web server, as
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`required by the Asserted Claims. Likewise, NCR’s contention that Woycik’s “[use] of the internet”
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`allegedly described in these sections does not amount to a teaching of elements of the Asserted
`
`Claims, nor does it amount to clear and convincing evidence of the same.
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`3.
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`Vendor Subscription Service
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`Similarly, NCR’s attorney argument that providing a web server as a “vendor subscription
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`service” is functional rather than structural such that there is no technical difference in the claimed
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`“vendor subscription service” does not make it so. Likewise, NCR’s expert, whose opinion on the
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`“vendor subscription” limitation is noticeably not cited in NCR’s Invalidity MSJ (likely because
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`it admits the limitation is not expressly disclosed and conflates an anticipation analysis with
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`obviousness), ignores the technical differences and reaches erroneous, conclusory findings that
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`Woycik allegedly inherently teaches the limitations of the Asserted Claims. Ex. A, Chaterrjee Dep.
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`82:12-84:4, Mar. 4, 2021. Namely, NCR, through its attorneys and expert, ignores the differences
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`9
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`Lightspeed Ex. 1012.13
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`Case 6:19-cv-00513-ADA Document 86 Filed 04/02/21 Page 14 of 21
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`regarding the importance of the on site “local server” on the entire system architecture of the
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`system disclosed in the Woycik system in comparison to the Asserted Patents—which explicitly
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`require no on site local server. See, e.g., Dkt. 66-1, ’640 Patent, Claims 1, 4 (“wherein no on site,
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`in-store server is required”); see also Dkt. 66-2, ’012 Patent, Claim 1. NCR’s attempt to isolate
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`certain “monetization” capabilities of general web servers does not overcome this critical fact, and
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`certainly do not rise to the level of meeting the heavy burden of clear and convincing evidence
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`needed to invalidate CloudofChange’s Asserted Claims.
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`Additionally, NCR erroneously relies on In re Schreiber to suggest that functional claim
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`language should never be used to distinguish a reference relying on inherency to anticipate an
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`asserted claim. 128 F.3d 1473 (Fed. Cir. 1997). NCR misconstrues the holding of In re Schrieber.
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`There, in contrast with this case, the Federal Circuit noted that “there [was] no dispute that the
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`structural limitations recited [in the patent application] [were] all found in the [] reference….” Id.
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`at 1477. Here, CloudofChange unequivocably disputes that Woycik teaches an “identical
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`structure” as required by the Asserted Claims. In addition, and at the very least, In re Schreiber
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`reinforces that whether a reference inherently anticipates an asserted claim is an issue of fact which
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`must be proved by clear and convincing evidence. Id. NCR has failed to show that the exact
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`“structure” of the Asserted Claims are all found in the prior art by clear and convincing evidence.
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`Likewise, NCR’s unsupported attorney arguments regarding inherency fare no better.
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`4.
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`Testing While Said POS Terminals Are Simultaneously in Use
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`Whether or not the specific claim limitation regarding the “testing of said POS screens is
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`done iteratively in real time while said POS terminals are simultaneously in use” is disclosed by
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`Woycik is also a disputed question of fact inappropriate for summary judgment. As the
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`contradicting expert reports of Mr. Crouse and Dr. Chatterjee demonstrate, the Parties disagree as
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`to whether Woycik teaches any of the claim limitations of the Asserted Patents. For instance,
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`10
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`Lightspeed Ex. 1012.14
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`Case 6:19-cv-00513-ADA Document 86 Filed 04/02/21 Page 15 of 21
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`Dr. Chatterjee’s report makes conclusory statements as to what he believes a person of ordinary
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`skill in the art would understand is meant by “iteratively” and “testing of said POS screens.” See
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`Dkt. 66-5, pp. 9-10, 26-27. NCR’s Invalidity MSJ merely reiterates Dr. Chatterjee’s opinion.
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`Accordingly, in his Rebuttal Report, Mr. Crouse states that Dr. Chatterjee’s invalidity report
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`improperly “attempts to read elements out of…Claim 4.” Dkt. 66-7, Crouse Rebuttal Report, ¶¶
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`48, 53. As such, there is a “battle of the experts” regarding the teachings of Woycik. Summary
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`judgment is inappropriate given the significant factual disputes that exist for the jury.
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`Furthermore, NCR’s criticism of the manner that Mr. Crouse phrased his objections to
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`NCR’s expert’s anticipation opinion is nothing more than attorney argument that cannot serve as
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`clear and convincing evidence of anticipation. NCR’s argument also fails substantively since there
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`is no requirement that Mr. Crouse expressly state that a particular claim element is not disclosed
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`in Woycik, particularly since disproving anticipation only requires proof that one element is not
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`taught by the reference, and since it is Mr. Crouse’s opinion that Dr. Chatterjee improperly read
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`that limitation out of the Asserted Claims in its entirety. See, e.g., In re NTP, Inc., 654 F.3d 1279,
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`1302 (Fed. Cir. 2011) (“It is axiomatic that for anticipation, each and every claim limitation must
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`be explicitly or inherently disclosed in the prior art.”).
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`5.
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`Software as a Subscription (SaaS)
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`NCR’s attempt to prove anticipation of Claim 6 of the ’640 Patent is another paraphrase of
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`its conclusory and erroneous expert report. Dkt. 66, Invalidity MSJ, p. 14. However, that
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`argument also fails, because NCR’s expert again failed to apply the required standard of the
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`understanding of a person of ordinary skill in the art to show inherency of the specific claim
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`language, and instead makes the conclusory and unsupported statement that “Woycik discloses, at
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`least to the same extent as the ’640 Patent, that the POS builder is usable to deliver POS application
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`solutions using software as a subscription (SAAS).” Dkt. 66, Invalidity MSJ, p. 14; see also Dkt.
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`11
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`Lightspeed Ex. 1012.15
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`Case 6:19-cv-00513-ADA Document 86 Filed 04/02/21 Page 16 of 21
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`66-5, Chatterjee, A1, p. 12. Of course, NCR provides no citation to any portion of Woycik for this
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`argument. Indeed, Woycik, makes no mention whatsoever of “software as a subscription” as
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`required by the Asserted Claims. See Dkt. 66-4, passim.
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`Instead, NCR again relies on its fall back inherency allegation in a failed attempt to plug
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`the holes in its anticipation argument regarding the missing “vendor subscription service”
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`limitation required by Asserted Claim 1. Dkt. 66-5, Chatterjee, A1, p. 12. As explained above,
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`these arguments fail to sufficiently show anticipation. Furthermore, Dr. Chatterjee’s expert report
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`similarly conflates an anticipation analysis with an obviousness standard to erroneously suggest
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`that the “software as a subscription” limitation of Asserted Claim 6 of the ’640 Patent is disclosed
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`by Woycik—it is not. Dkt. 66-5, Chatterjee, A1, p. 12. Accordingly, NCR has failed to meet its
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`burden of showing Woycik’s anticipation of Asserted Claim 6.
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`6.
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`Open-Source, Non-Proprietary Technologies
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`NCR first cites Paragraph 40 of Mr. Crouse’s Rebuttal Report in an attempt to confuse
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`Mr. Crouse’s statement regarding “open, non-proprietary technology” with the limitations of
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`Asserted Claims 5 and 4, respectively. However, as discussed herein, infra, the Crouse Rebuttal
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`Report independently discusses and rebuts Dr. Chatterjee’s Report regarding Claims 5 and 4.
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`Specifically, Mr. Crouse directly rebuts Dr. Chatterjee’s assertion that “Woycik discloses a web-