Case 2:18-cv-00508-JRG Document 110 Filed 04/28/20 Page 1 of 37 PageID #: 5127
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`UNILOC 2017 LLC,
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` Plaintiff,
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`v.
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`SAMSUNG ELECTRONICS AMERICA, INC.
`and SAMSUNG ELECTRONICS CO. LTD.
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` Defendants.
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`Civil Action No. 2:18-cv-508-JRG
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`SAMSUNG’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT
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`Case 2:18-cv-00508-JRG Document 110 Filed 04/28/20 Page 2 of 37 PageID #: 5128
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`
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`I.
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`II.
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`TABLE OF CONTENTS
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`INTRODUCTION ............................................................................................................... 1
`
`ISSUES PRESENTED ......................................................................................................... 1
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`III.
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`STATEMENT OF UNDISPUTED MATERIAL FACTS .................................................... 2
`
`A.
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`B.
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`C.
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`D.
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`E.
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`The ’654 Patent .........................................................................................................2
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`The Accused Products..............................................................................................4
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`Uniloc’s Original Infringement Theory .....................................................................6
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`The Court’s Markman Order Undermined Uniloc’s Infringement Theory ..................7
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`Dr. Easttom’s Expert Report and Uniloc’s New Infringement Theory ...................8
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`IV.
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`LEGAL STANDARDS ....................................................................................................... 9
`
`A.
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`B.
`
`C.
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`Summary Judgment ..................................................................................................9
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`Direct Infringement .................................................................................................10
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`Indirect Infringement .............................................................................................11
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`V.
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`ARGUMENT .................................................................................................................... 12
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`A.
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`The Accused Products Do Not Have a “Linked User Identification
`Module” as Required By All Asserted Claims ......................................................12
`
`B.
`
`C.
`
`D.
`
`E.
`
`1.
`
`2.
`
`The Accused Products Do Not Have a “Linked User Identification
`Module” Under the Court’s Claim Construction .......................................13
`
`The Accused Products Do Not Have a “Linked User Identification
`Module” Even Under Uniloc’s New Claim Construction of
`“Normal Operation” ...................................................................................14
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`The Accused Products’ Lock Screen Does Not Prevent “Normal
`Operation,” as Required By All of the Asserted Claims .......................................16
`
`The Accused Products Do Not Have a “Timing Means” as Required By
`Claims 1, 3, 5, and 7 ................................................................................................18
`
`Uniloc Has Failed to Present Any Evidence of Infringement for the Majority
`of the Accused Products ..........................................................................................20
`
`Uniloc Has Failed to Show Any Evidence of Direct Infringement by
`Samsung .................................................................................................................21
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`1.
`
`2.
`
`3.
`
`Samsung Cannot Directly Infringe Apparatus Claims 1, 3, 5, 7, 17,
`and 18 .........................................................................................................21
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`Samsung Cannot Infringe the Method Claims ...........................................23
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`There is Insufficient Evidence to Raise a Triable Issue of Fact That
`Samsung Has “Used” the Accused Products in the United States .............25
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`F.
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`Uniloc Has Failed to Demonstrate Indirect Infringement by Samsung .....................27
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`1.
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`2.
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`3.
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`4.
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`Summary Judgment of No Indirect Infringement Should be
`Entered Because Uniloc Cannot Demonstrate Direct Infringement ..........27
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`Uniloc Has Not Adduced Any Evidence of Knowledge by
`Samsung of Infringement by Third Parties ................................................28
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`Uniloc Has Adduced No Evidence of Acts By Samsung Intended
`to Induce Infringement ...............................................................................29
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`Summary Judgment of No Contributory Infringement Should Be
`Entered Because Uniloc Has Not Adduced Any Evidence of No
`Substantial Non-Infringing Use of the Accused Products .........................30
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`VI.
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`CONCLUSION ................................................................................................................. 30
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`Case 2:18-cv-00508-JRG Document 110 Filed 04/28/20 Page 4 of 37 PageID #: 5130
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`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`ACCO Brands, Inc. v. ABA Locks Mfr. Co.,
`501 F.3d 1307 (Fed. Cir. 2007)..........................................................................................11, 26
`
`C.R. Bard, Inc. v. Advanced Cardiovascular Sys., Inc.,
`911 F.2d 670 (Fed. Cir. 1990)....................................................................................................9
`
`Celotex Corp. v. Catrett,
`477 U.S. 317 (1986) .............................................................................................................9, 10
`
`Centillion Data Sys., LLC v. Qwest Communs. Int’l,
`631 F.3d 1279 (Fed. Cir. 2011)..........................................................................................22, 23
`
`Commil USA, LLC v. Cisco Sys., Inc.,
`135 S. Ct. 1920 (2015) .................................................................................................11, 12, 28
`
`Cordis Corp. v. Boston Sci. Corp.,
`561 F.3d 1319 (Fed. Cir. 2009)................................................................................................15
`
`Dodots Licensing Solutions LLC v. Lenovo Holding Co.,
`2018 U.S. Dist. LEXIS 213202 (D. Del. Dec. 19, 2018) .........................................................24
`
`DSU Med. Corp. v. JMS Co.,
`471 F.3d 1293 (Fed. Cir. 2006)................................................................................................28
`
`Ecolab, Inc. v. FMC Corp.,
`569 F.3d 1335 (Fed. Cir. 2009)................................................................................................28
`
`Eli Lilly & Co. v. Barr Labs., Inc.,
`251 F.3d 955 (Fed. Cir. 2001)..................................................................................................10
`
`EMG Tech., LLC v. Vanguard Grp., Inc.,
`2014 U.S. Dist. LEXIS 191718 (E.D. Tex. June 24, 2014) .....................................................10
`
`Finjan, Inc. v. Secure Computing Corp.,
`626 F.3d 1197 (Fed. Cir. 2010)..........................................................................................10, 23
`
`Fujitsu Ltd. v. Netgear Inc.,
`620 F.3d 1321 (Fed. Cir. 2010)..........................................................................................12, 30
`
`Johnston v. IVAC Corp.,
`885 F.2d 1574 (Fed. Cir. 1989)................................................................................................10
`
`Joy Techs., Inc. v. Flakt, Inc.,
`6 F.3d 770 (Fed. Cir. 1993)..............................................................................10, 11, 23, 24, 27
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`Case 2:18-cv-00508-JRG Document 110 Filed 04/28/20 Page 5 of 37 PageID #: 5131
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`Koninklijke Philips N.V. v. Zoll Med. Corp.,
`656 F. App’x. 504 (Fed. Cir. 2016) .........................................................................................28
`
`Meyer Intellectual Props. Ltd. v. Bodum, Inc.,
`690 F.3d 1354 (Fed. Cir. 2012)....................................................................................10, 23, 26
`
`Mirror Worlds, LLC v. Apple, Inc.,
`784 F. Supp. 2d 703 (E.D. Tex. 2011) .........................................................................11, 26, 27
`
`Ormco Corp. v. Align Tech., Inc.,
`463 F.3d 1299 (Fed. Cir. 2006)..........................................................................................11, 24
`
`Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc.,
`843 F.3d 1315 (Fed. Cir. 2016)................................................................................................11
`
`Ricoh Co. v. Quanta Computer Inc.,
`550 F.3d 1325 (Fed. Cir. 2008)..........................................................................................11, 24
`
`Toshiba Corp. v. Imation Corp.,
`681 F.3d 1358 (Fed. Cir. 2012)................................................................................................30
`
`TQP Dev., LLC v. Intuit Inc.,
`2014 WL 2810016 (E.D. Tex. June 20, 2014) .........................................................................10
`
`Warner-Jenkinson Co. v. Hilton Davis Chem. Co.,
`520 U.S. 17 (1997) ...................................................................................................................10
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`Case 2:18-cv-00508-JRG Document 110 Filed 04/28/20 Page 6 of 37 PageID #: 5132
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`I.
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`INTRODUCTION
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`Pursuant to Fed. R. Civ. P. 56, Defendants Samsung Electronics America, Inc. (“SEA”) and
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`Samsung Electronics Co., Ltd. (“SEC”) (collectively, “Samsung”) respectfully move for summary
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`judgment of non-infringement of U.S. Patent No. 6,836,654 (the “’654 patent”) (Ex. 1).1 Following
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`the Court’s Markman Order, the infringement theory on which Plaintiff Uniloc 2017 LLC (“Uniloc”)
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`has relied since the outset of the case became, in Uniloc’s own words, “untenable.” Thus, Uniloc has
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`made a last-ditch effort to save its case by concocting an entirely new infringement theory based on a
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`new claim construction for a term that was never proposed for construction by the parties or in fact
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`construed by the Court in this case. Indeed, its new infringement theory is based on a construction that
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`differs from a construction for the same term to which Uniloc agreed in another case asserting the ’654
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`patent before this Court. Regardless, as demonstrated below, even Uniloc’s new theory has no merit.
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`Accordingly, summary judgment of non-infringement should be entered.
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`II.
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`ISSUES PRESENTED
`
`1.
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`2.
`
`Whether the accused Samsung smartphones utilize a “linked user identification
`module” when they can make outgoing calls with numerous SIM cards.
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`Whether the accused “lock screen” functionality prevents normal operation when
`outgoing calls can be made without first entering a deblocking code.
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`3. Whether the accused Samsung smartphones have a “timing means” even though the
`inactivity timer functions independent of a SIM card.
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`4
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`5.
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`Whether Uniloc has sufficient evidence to raise a triable issue of material fact that
`all of the accused Samsung smartphones have been made, used, sold, offered for
`sale, or imported, in the United States by Samsung.
`
`Whether Samsung or the accused Samsung smartphones directly infringe the asserted
`apparatus and method claims.
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`6. Whether there is sufficient evidence to raise a triable issue of material fact that
`Samsung induces end users to infringe the Asserted Claims, or contributes to the
`
`
`1 Unless otherwise indicated, all Exhibits are attached to the Declaration of Allan A. Kassenoff in
`Support of Samsung’s Motion for Summary Judgment of Non-Infringement.
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`infringement of the Asserted Claims.
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`III.
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`STATEMENT OF UNDISPUTED MATERIAL FACTS
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`A.
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`The ’654 Patent
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`According to the ’654 patent, because mobile devices “are intended to accompany their users
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`when they move around,” they are frequently “lost or stolen.” (’654 patent at 1:16-18). One alleged
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`solution to this problem described in the patent is disclosed in U.S. Patent No. 5,913,175 (the “’175
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`patent”). The ’175 patent purports to prevent a lost or stolen telephone from being used by a third party
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`by “establishing a link between the device and a specific user identification module [e.g., a SIM card]
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`and blocking the normal operation of the device [i.e., making outgoing calls] when the user
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`identification module that is placed inside the device is not the one that is linked to the device.” (’654
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`patent at 1:24-29).2 In other words, if a phone is lost or stolen and the original (linked) SIM card is
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`replaced with another SIM card, then the phone will not be able to make outgoing calls. However,
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`even with that solution, a drawback still existed since, if the phone was lost or stolen along with its
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`original SIM card, for at least some period of time, a third party could make outgoing calls using the
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`phone which, at the time of the alleged invention in 1999, was quite expensive. (See id. at 1:30-37
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`(“When the device is lost or stolen with the identification module to which it is linked . . . the device
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`can be freely used until the identification module to which it is linked is blocked via the network”
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`which “may take a certain period of time.”)). According to the ’654 patent, preventing such
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`unauthorized usage between the time the phone was lost and the time the owner blocked the phone via
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`the network was an “object of the invention.” (Id. at 1:40-41).
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`The ’654 patent purports to achieve this object of preventing unauthorized usage as follows:
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`First, “a device [i.e., a phone] in accordance with the invention (1) verifies a user identification module
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`2 All emphasis is added unless otherwise noted.
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`[e.g., a SIM card] mounted inside the mobile radiotelephony device is linked to the mobile
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`radiotelephony device,” much like the prior art. (Id. at 1:39-43). Then, the device “(2) detects a period
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`of inactivity of the mobile radiotelephony device during a normal operation of the mobile
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`radiotelephony device, wherein the normal operation includes a processing of all outgoing calls, and
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`(3) prevents the normal operation of the mobile radiotelephony device in response to the verification
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`of the user identification module and in response to the detection of the period of inactivity of the
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`mobile radiotelephony device.” (Id. at 1:43-51). Once normal operation is prevented, a “deblocking
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`code” must “be supplied to return to the normal operation mode.” (Id. at 2:11-12). Thus, as explained
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`in the ’654 patent, the alleged invention prevents a third party from using a lost or stolen phone to make
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`expensive outgoing calls, other than during that small window of time before the phone is
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`automatically locked due to the period of inactivity:
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`[W]hen the device falls into the hands of a third party together with the identification
`module to which it is linked, it has most probably been inactive for a period of time
`that is sufficiently long for its normal operation to be blocked (advantageously, the
`inactive time after which the blocking means are activated is of the order of several
`minutes). The device cannot thus be used without the deblocking code being supplied.
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`Thanks to the invention the lost or stolen device becomes totally unusable. A fraudulent
`person cannot send communications at the cost of the owner of the device. But neither
`can he use the device with another identification module.
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`(Id. at 1:52-63).
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`Independent claims 1 and 10 of the ’654 patent are similar in scope (albeit one is directed to
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`the device and the other to a method) and are reproduced below:
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`Claim 1
`
`Claim 103
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`A mobile radiotelephony device, comprising:
`blocking means for preventing a normal operation
`of the mobile radiotelephony device, wherein the
`normal operation
`includes a processing of
`outgoing calls;
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`a mobile
`A method of protecting
`radiotelephony
`device,
`the method
`comprising:
`verifying [sic] a user identification module
`mounted inside the mobile radiotelephony
`
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`3 Independent claim 17 is similar to claim 10, but is written as a “computer readable medium” claim.
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`timing means for activating the blocking means in
`response to the mobile radiotelephony device
`being inactive during the normal operation of the
`mobile radiotelephony device for a defined period
`of time subsequent to a mounting of a linked user
`identification module
`inside
`the mobile
`radiotelephony device; and
`the normal
`deblocking means for permitting
`operation of the mobile radiotelephony device in
`response to a supply of a deblocking code to the
`mobile radiotelephony device subsequent to the
`mounting of the linked user identification module
`inside the mobile radiotelephony device and
`subsequent to the defined period of time.
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`B.
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`The Accused Products
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`to
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`the mobile
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`linked
`is
`device
`radiotelephony device;
`detecting a period of inactivity of the mobile
`radiotelephony device during a normal
`operation of the mobile radiotelephony
`device, wherein the normal operation
`includes a processing of all outgoing calls;
`preventing the normal operation of the
`mobile radiotelephony device in response
`to the verification of the linked user
`identification module and in response to
`the detection of the period of inactivity of
`the mobile radiotelephony device.
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`In Plaintiff’s Disclosure of Asserted Claims and Infringement Contentions, Uniloc has accused
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`over 100 models of Samsung smartphones (the “Accused Products”) of infringing the ’654 patent by
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`use of a “lock screen” that can be activated after a period of inactivity. (See Ex. 2 (“Infringement
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`Contentions”) at 1–2). The Accused Products are sold by Samsung as: (1) “unlocked” phones, which
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`can make calls using any SIM card from any network carrier or (2) “network locked” phones, which
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`can make calls using any SIM card from a particular network carrier (e.g., a Verizon locked phone
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`can make calls using any Verizon SIM card). (Expert Report on Non-Infringement by Nenad
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`Medvidovic, Ph.D., Ex. 3 (“Medvidovic Rpt.”) ¶¶60-61, 104-106, 176-177). Thus, all of the Accused
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`Products can make outgoing calls with more than one SIM card. (Id.) Users may utilize different SIM
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`cards in a single device for several reasons. For example, a user may use one SIM card for network
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`access while in the United States and a different one while travelling overseas. Another user may use
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`one SIM card for business and a different one for personal use. And yet another user may use two SIM
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`cards to switch phone numbers or networks. (Id. ¶¶106, 183). Importantly, Samsung’s “unlocked”
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`phones are sold without a SIM card installed and a user must obtain, install, and use one or more SIM
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`cards for their preferred network(s). (Id. ¶60).
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`The Accused Products cannot make outgoing calls over a carrier network unless and until a
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`user (or carrier or retail representative setting up a phone on a user’s behalf, e.g., an employee in a
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`Verizon store) activates a SIM card through the Setup Wizard activation process. (Id. ¶¶59, 178).
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`During that setup process, the carrier network, e.g., Verizon, performs a SIM provisioning check to
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`confirm the SIM card’s status and verify that it can connect with a network. (Id.)
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`While SIM cards are required to make or receive calls over a carrier’s network, SIM cards are
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`not required for other uses of the Accused Products. (Id. ¶¶125-128). For example, SIM cards are not
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`required to utilize the phone’s camera, Wi-Fi, or various applications on the phone. (Id.) The Accused
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`Products can even make outgoing voice calls or send messages, without a SIM card, by using voice-
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`over-IP (VoIP) applications, such as Skype, Google Voice, or WhatsApp. (Id.)
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`When Samsung sells the Accused Products, the phones do not have an activated secure lock
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`screen. (Id. ¶¶56, 76-77, 143, 201-202). Rather, as part of the phone’s setup process, a user has the
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`option to set up a lock screen (or not to). Specifically, a user could opt to utilize no lock screen, “Swipe”
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`(which is an unsecured lock screen that is disengaged by dragging your finger across the screen),
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`“Pattern” (which requires dragging your finger across a series of dots in a particular order), a PIN code,
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`a password, or a biometric, such as a fingerprint, iris scan, and facial recognition. (Id.) The default
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`setting of the Accused Products is to have an unsecured lock screen. (Id.)
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`If a user sets up a secure lock screen, the user can unlock the device and make outgoing calls
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`by entering the selected pattern, PIN, password, or biometric. (Id. ¶¶56-57, 76-77). Alternatively, some
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`Accused Products can make outgoing calls using a voice-activated assistant called Bixby – without
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`having to first enter the selected pattern, PIN, password, or biometric. (Id. ¶¶89-93). Bixby is engaged
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`by saying “Hi, Bixby,” after which a user can say “Call [contact]” to make an outgoing call. (Id.)
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`Outgoing calls can also be made without first entering a PIN/password/pattern/biometric through use
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`of Smart Lock or Auto Lock, which unlocks the phone based on its proximity to another Samsung
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`device (e.g., a Galaxy Gear watch) or its location (e.g., users can make hands-free calls from their cars
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`without having to unlock the device). (Id. ¶¶55, 96-97). Additionally, the lock screen does not prevent
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`users from making calls to any individual that a user sets as an ICE (“in case of emergency”) or an
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`Emergency Contact. (Id. ¶¶79-87). Users can choose to set an unlimited number of contacts as
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`ICE/emergency contacts, and ICE/emergency contacts can be called for any reason whatsoever
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`without first unlocking the device. (Id.)
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`By default, the Accused Products have an inactivity timer that will cause the screen to turn off
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`after 30 seconds. (Id. ¶¶98, 153, 155). This is a battery saving feature that can be modified by the user.
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`(Id.) If the user chooses to set up a secure lock screen, when the screen is turned off by the inactivity
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`timer, a lock screen is also activated by the device. (Id.) The inactivity timer and lock screen are active
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`whether or not a SIM card is inserted in the device. (Id.)
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`C.
`
`Uniloc’s Original Infringement Theory
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`Since the outset of this case and up until the Court issued its Markman Order, Uniloc had taken
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`the position that the Accused Products infringe claims 1, 3, 5, 7, 10-11, 13-14, 17, and 18 of the ’654
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`patent (the “Asserted Claims”) because, when a “linked user identification module” (e.g., a SIM card)
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`is placed in the phone, and when the phone is inactive for a certain period of time, the phone will lock
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`until the user inputs his or her PIN/pattern/biometric (i.e., what Uniloc asserts is the “deblocking
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`code”). Importantly, it had been Uniloc’s position that any SIM card could be used with the phone and
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`still infringe.
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`Specifically, in its Infringement Contentions, Uniloc alleged that the Accused Products’ use of
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`a “lock screen” that can be activated after a period of inactivity and unlocked using a
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`pattern/PIN/biometric infringes the ’654 patent. (Infringement Contentions (Ex. 2), Ex. A thereto, at
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`6-13). With respect to the “linked user identification module” and “timing means” limitations of the
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`Case 2:18-cv-00508-JRG Document 110 Filed 04/28/20 Page 12 of 37 PageID #: 5138
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`Asserted Claims, Uniloc stated: “[S]ubsequent to a valid SIM card (user identification module) being
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`inserted into the Accused Products and the security functionality being enabled, access to the Accused
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`Products is blocked after a time period . . . has passed since the last interaction.” (Id. at 6). Uniloc’s
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`infringement theory was confirmed through its claim construction briefing where it argued that “[t]he
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`claims do not require that the user identification module is the only one that performs normal operation
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`of the device.” (Dkt. 42 at 7; Dkt. 48 at 1-3 (“Thus, a linked user identification module does not have
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`to be the only one that performs normal operation of the device.”); Dkt. 64 at 1-3 (“[T]he patent
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`recognizes that both linked and unlinked user identification modules may be used to process calls, even
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`if another user identification module has been linked.”); Dkt. 62 at 9:2-7, 10:8-11, 12:3-10).
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`During the claim construction proceedings, Uniloc’s expert, Dr. Easttom, similarly asserted:
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`[T]here are embodiments in the patent that allow non-linked user identification
`modules to make calls. See, e.g., col. 4, ll. 23-30. Therefore, I do not agreed [sic]
`that the linked user identification module must be the only one that permits normal
`operation of the device.
`
`
`(Dkt. 41-6 at ¶¶27-29).4 And, at the Markman hearing, Uniloc’s counsel asserted that “it is Uniloc’s
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`position that linked doesn’t in this case mean the only one that permits normal operation. . . . There’s
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`nothing in the claim that suggests it is the one and only one.” (Dkt. 62 at 8:24-9:7; see also id. at 10:8-
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`11, 12:7-10).
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`
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`The reason Uniloc was forced to take this position was clear – as discussed in Section III.B
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`above, all of the Accused Products work, i.e., are able to make outgoing calls, using more than one
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`SIM card.
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`D.
`
`The Court’s Markman Order Undermined Uniloc’s Infringement Theory
`
`On January 21, 2020, in its Markman Order (Dkt. 61), the Court rejected Uniloc’s claim
`
`
`4 The Declaration of Dr. William C. Easttom II (Chuck Easttom) Concerning Claim Construction of
`U.S. Patent. No. 6,836,654 was struck as untimely (Dkt. 59).
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`Case 2:18-cv-00508-JRG Document 110 Filed 04/28/20 Page 13 of 37 PageID #: 5139
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`construction arguments for the term “linked user identification module,” which eviscerated Uniloc’s
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`infringement theory. Specifically, the Court held that a “linked user identification module” is “a user
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`identification module that is the only one that permits normal operation of the device.” (Id. at 17). The
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`Court made clear that “physically connecting a module to a device (e.g., by inserting it into the device
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`or attaching it to the device via a chain link) does not mean the device is ‘linked’ as ‘linked’ is used in
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`the patent.” (Id. at 16). The Court also stated that a device cannot operate normally with an unlinked
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`user identification module: “Neither the Pinault prior-art patent nor the ’654 Patent provide any
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`example in which a mobile device linked to a linked user identification module may operate normally
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`without the linked user identification module.” (Id. at 14).
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`The Court also construed the “timing means” limitation of claim 1 as having the following
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`structure: “device with a microprocessor assembly programmed to execute the algorithms set forth in
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`the ’654 Patent at col.3 ll.32-43, and equivalents thereof.” (Id. at 36). In addition, the Court ruled that
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`the “timing means” algorithm first checks to ensure that a “linked user identification module” is
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`“placed inside the device”:
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`If the identification module that is placed inside the device is linked to the device
`(arrow Y4), one looks whether the device has remained in the state of availability
`for a certain period of time T of the order of several minutes, for example (box
`K10). If this is not the case (arrow N10), the device remains in the state of
`availability indicated in box Kl. If this is the case (arrow Yl0), the device passes on
`to a second blocking state indicated in box K11.
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`(Id. at 35 (citing ’654 patent (Ex. 1) at col. 3 ll. 31-39)). The Court explained “that the timing means is
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`engaged only after insertion of the linked user identification module.” (Id.)
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`E.
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`Dr. Easttom’s Expert Report and Uniloc’s New Infringement Theory
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`Following the issuance of the Court’s Markman Order, Uniloc realized that its entire
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`infringement theory had been rendered – in its own words – “untenable.” (Dkt. 96 at 14). Rather than
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`dismiss its case (as it should have), Uniloc “changed [its] theory of the case.” (Id.) This proved difficult,
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`however, since, as its expert Dr. Easttom
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` (See Expert Report of William C. Easttom II (Chuck
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`Easttom) Regarding Infringement of U.S. Patent No. 6,836,654 (“Easttom Rpt.”) (Ex. 4) ¶¶204-210).
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`Therefore, Uniloc devised an entirely new theory of infringement which relies on a brand-new
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`construction for “normal operation” which finds no support in the Court’s Markman Order or the
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`intrinsic evidence and is inconsistent with Uniloc’s construction of the term in another case before this
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`Court.5 In fact, Dr. Easttom recognizes that he had to “define normal operation” himself. (Id. ¶138).
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`In his report, Dr. Easttom asserts:
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`212). Thus, Dr. Easttom asserts that the Accused Products have
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` (Id. ¶212; see also id. ¶205
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`IV.
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`LEGAL STANDARDS
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`A.
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`Summary Judgment
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` (Id. ¶21; see also id. ¶¶144, 205,
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`A grant of summary judgment is proper if the pleadings and evidence show that “there is no
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`genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.”
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`Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Summary judgment is as
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`5 Samsung moved to strike Dr. Easttom’s construction of “normal operation” and other new opinions
`in the Easttom Report, as well as Uniloc’s Amended Infringement Contentions, which were served
`after the Easttom Report was served. (Dkt. 77).
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`appropriate in a patent case as it is in any other case.” C.R. Bard, Inc. v. Advanced Cardiovascular
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`Sys., Inc., 911 F.2d 670, 672 (Fed. Cir. 1990).
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`“[T]he burden on the moving party may be discharged by ‘showing’—that is, pointing out to
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`the district court—that there is an absence of evidence to support the nonmoving party’s case.” Celotex,
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`477 U.S. at 325. When the summary judgment movant demonstrates the absence of a genuine dispute
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`over any material fact, the burden shifts to the non-movant to show there is a genuine factual issue for
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`trial. Id. at 325. “A genuine issue exists if the evidence is such that a reasonable jury could find for the
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`nonmoving party,” and “[a] disputed fact is material if it might affect the outcome of the suit such that
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`a finding of that fact is necessary and relevant to the proceeding.” Eli Lilly & Co. v. Barr Labs., Inc.,
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`251 F.3d 955, 962 (Fed. Cir. 2001). “The nonmovant’s burden may not be satisfied by argument,
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`conclusory allegations, unsubstantiated assertions, metaphysical doubt as to the facts, or a mere
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`scintilla of evidence.” EMG Tech., LLC v. Vanguard Grp., Inc., 2014 U.S. Dist. LEXIS 191718, at *6
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`(E.D. Tex. June 24, 2014). And, “conclusory assertions, even from experts, are not sufficient to avoid
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`summary judgment.” TQP Dev., LLC v. Intuit Inc., 2014 WL 2810016, at *10 (E.D. Tex. June 20,
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`2014).
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`B.
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`Direct Infringement
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`To establish literal infringement of a patent, every limitation set forth in a claim must be found
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`in an accused product. Johnston v. IVAC Corp., 885 F.2d 1574, 1577 (Fed. Cir. 1989). When a claim
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`limitation is not present in an accused device, either literally or under the doctrine of equivalents, the
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`court must grant summary judgment of non-infringement. See Warner-Jenkinson Co. v. Hilton Davis
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`Chem. Co., 520 U.S. 17, 39 n.8 (1997).
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`“To infringe a method claim, a person must have practiced all steps of the claimed method.”
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`Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1206 (Fed. Cir. 2010). In other words, “[a]
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`method claim is directly infringed only by one practicing the