Case 1:21-cv-00896-ADA Document 468 Filed 06/28/23 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`FINTIV, INC.,
`Plaintiff,
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`v.
`APPLE INC.,
`Defendant.
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`1:21-CV-896-ADA
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`PUBLIC VERSION
`
`ORDER GRANTING MOTION
`FOR SUMMARY JUDGMENT [ECF No. 270]
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`Before the Court is Defendant Apple Inc.’s (“Apple”) Motion for Summary Judgment of
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`Non-Infringement. ECF No. 270. Plaintiff Fintiv, Inc. (“Fintiv”) filed a Response. ECF No. 300.
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`Apple then replied. ECF No. 348. After originally denying the motion, the Court heard further oral
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`argument on the Motion on June 13, 2023. ECF Nos. 465–66. At the hearing, the Court granted
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`Apple’s Motion and vacated its prior decision. This opinion memorializes that ruling.
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`I. BACKGROUND
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`On December 21, 2018, Fintiv filed its complaint alleging infringement of U.S. Patent No.
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`8,843,125 (“the ’125 patent”). ECF No. 1 ¶ 3. Fintiv alleges Apple infringes independent claims
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`11, 18, and 23 and dependent claims 13, 14, 20, 24, and 25 (“asserted claims”). ECF No. 270-2
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`(“Shamos Report”) ¶ 2. All the asserted claims relate generally to “card provisioning.” ECF No.
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`270-3 (“Shamos Depo.”) at 31:21–24; ECF No. 273-1 (“’125 patent”) claims 11, 18, 23. Card
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`provisioning is a process whereby a user “load[s] data concerning a payment instrument, such as
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`a credit card, onto a mobile device for the purposes of making payment transactions.” Shamos
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`Report ¶ 71. Independent claim 11 recites a method for card provisioning, specifically a “method
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`for provisioning a contactless card applet in a mobile device comprising a mobile wallet
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`application.” Independent claim 18 recites a system for card provisioning, specifically a “wallet
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`Case 1:21-cv-00896-ADA Document 468 Filed 06/28/23 Page 2 of 10
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`management system (WMS) in a non-transitory storage medium to store and manage mobile wallet
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`account information.” Independent claim 23 recites a “mobile device” for card provisioning. ’125
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`patent, claims 11, 18, 23.
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`Fintiv accuses each of the Apple iPhone, Watch, iPad, and Mac products of infringing at
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`least one claim of the ’125 patent. Shamos Report ¶¶ 102–03. Every asserted claim recites a
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`“widget.” Claim 11 requires “retrieving a widget . . . corresponding to a contactless card applet”
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`and “provisioning the widget.” Claim 18 requires “a widget management component configured
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`to store and to manage widgets” and “a rule engine configured to filter a widget.” Claim 23 requires
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`“a mobile wallet application configured to store a widget” and “an over-the-air (OTA) proxy
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`configured to provision . . . a widget.” The Court construed “widget” to have its plain-and-ordinary
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`meaning, where the plain-and-ordinary meaning is “software that is either an application or works
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`with an application, and which may have a user interface.” ECF No. 86 at 17, 34. The Court also
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`ruled that “a POSITA would not understand that a widget is a stand-alone application, but rather
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`as code, e.g., a ‘plug-in,’ that runs within an application.” Id. at 16.
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`II. LEGAL STANDARD
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`Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
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`to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. C IV.
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`P. 56(a); Tolan v. Cotton, 572 U.S. 650, 656–57 (2014). A material fact will have a reasonable
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`likelihood to affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
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`(1986). An issue is not genuine if the trier of fact could not, after an examination of the record,
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`rationally find for the non-moving party. Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475
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`U.S. 574, 587 (1986). As such, the burden of demonstrating a lack of a genuine dispute of material
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`fact lies with the movant. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
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`A court must view the movant’s evidence and all factual inferences from such evidence in
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`a light most favorable to the party opposing summary judgment. Impossible Elecs. Techniques v.
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`Wackenhut Protective Sys., Inc., 669 F.2d 1026, 1031 (5th Cir. 1982). Accordingly, the fact that
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`the court believes that the non-moving party will be unsuccessful at trial is an insufficient reason
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`to grant summary judgment in favor of the moving party. See Jones v. Geophysical Co., 669 F.2d
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`280, 283 (5th Cir. 1982). Yet, “[w]hen opposing parties tell two different stories, but one of which
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`is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should
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`not adopt that version of the facts for the purposes of ruling on a motion for summary judgment.”
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`Scott v. Harris, 550 U.S. 372, 380–81 (2007).
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`Once the court determines that the movant has presented sufficient evidence that no
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`genuine dispute of material fact exists, the burden of production shifts to the party opposing
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`summary judgment. Matsushita, 475 U.S. at 586. The non-moving party must demonstrate a
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`genuinely disputed fact by citing to parts of materials in the record, such as affidavits, declarations,
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`stipulations, admissions, interrogatory answers, or other materials; or by showing that the materials
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`cited by the movant do not establish the absence of a genuine dispute. FED. R. CIV. P. 56(c)(1)(A)–
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`(B). “Conclusory allegations unsupported by concrete and particular facts will not prevent an
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`award of summary judgment.” Duffy v. Leading Edge Prods., 44 F.3d 308, 312 (5th Cir. 1995).
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`III. DISCUSSION
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`Apple moves for summary judgment of non- infringement of the ’125 patent on four
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`independent grounds. One of Apple’s grounds is that Fintiv and its technical expert, Dr. Michael
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`Shamos, identified no software in the accused products that constitutes a “widget” under the
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`Court’s construction of that term—a requirement of all asserted claims. As explained below, the
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`Court finds that the record is devoid of evidence that the accused products practice the “widget”
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`limitation under the Court’s construction. Because the Court finds that Apple has met its burden
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`on this ground, the Court need not address the other three grounds. Apple has therefore established
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`that there is no genuine dispute of material fact that it does not practice the asserted claims, and it
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`is entitled to summary judgment as a matter of law.
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`A.
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`Apple’s Position
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`Apple contends that it is entitled to summary judgment of noninfringement as to all asserted
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`claims because (1) Fintiv identified no software code in the accused products that meets the
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`“widget” limitations of the asserted claims, and (2) undisputed facts confirm the accused products
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`do not use and are not configured to use a “widget.” ECF No. 270 at 12–13. First, Apple argues
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`that Fintiv’s expert Dr. Shamos identified no Apple software code that constitutes a “widget” as
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`construed by the Court. Id. at 14. Indeed, Apple points to Dr. Shamos’s deposition testimony that
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`confirms this argument:
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`Q. So do we agree that your report does not cite the -- or identify the software that
`is the widget in the accused iPhone device?
`A. Yeah. I think it -- I think it doesn’t identify the source code of the widget.
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`Id. (citing Shamos Depo. at 73:12–74:5 (emphasis added)). After citing several occasions in Dr.
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`Shamos’s deposition testimony establishing there is no source code that makes up the widget in
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`the accused devices, Apple reiterates that Dr. Shamos confirmed under oath that “there is nowhere
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`in [his] report that cites the source code that makes up the widget for any of the accused devices.”
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`See id. at 15 (citing Shamos Depo. at 75:14–20).
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`Second, Apple asserts that Fintiv also failed to present evidence that the accused products
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`practice other “widget”-related limitations of the asserted claims. Id. For example, asserted claim
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`11 requires “retrieving a widget.” Dr. Shamos agreed that during card provisioning a widget must
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`be retrieved from an Apple server to an accused device, but Apple argues he could not identify
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`any widget retrieved from any Apple server. Id. (citing Shamos Depo. at 56:23–25). And asserted
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`claim 18 requires “a widget management component configured to store and to manage widgets,”
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`but Apple contends that Dr. Shamos could not identify which server allegedly stores the claimed
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`“widget,” nor does he know which component is responsible for such storage. Id. at 16.
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`B.
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`Fintiv And Its Expert Failed To Identify The Claimed “Widget” In The
`Accused Products.
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`Fintiv and Dr. Shamos failed to identify the claimed widget in the accused products. In Dr.
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`Shamos’ expert report, only one paragraph discusses the “widget” limitation and contains citations
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`to Apple’s source code—paragraph 309. Shamos Report ¶ 309. But when asked at his deposition,
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`Dr. Shamos conceded that none of the source code cited in that paragraph is the claimed “widget”:
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`Q. So the software that you’re talking about in Paragraph 309 -- that is the widget,
`is that the software that’s cited in Paragraph 309?
`A. I don’t think so.
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`Shamos Depo. at 53:11–14. When Dr. Shamos was asked about each of the source code files cited
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`in paragraph 309 individually, he confirmed that none of those files is a “widget.” Id. at 61:21–23
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`(
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` not the widget); 62:11–12 (“
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` alone can’t be the widget”); 66:17–
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`20 (“I can’t tell” if
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` is the widget); 69:20–24 (“not ready to say”
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` is the widget);
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`70:11–12
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`(
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`
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`not
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`the
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`widget);
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`70:16–22
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`(
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` and
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` not the
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`widget);
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`71:14–17
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`(
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`
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`not
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`the widget);
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`71:18–24
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`(
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`not the widget); 71:25–72:5 (
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` not the widget). As explained above, Dr. Shamos also confirmed that
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`none of the software files cited in other parts of his report constitutes a “widget”:
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`Q. But if we did the same exercise we just spent the last 30 minutes doing, we
`would find that there is nowhere in your report that cites the source code that makes
`up the widget for any of the accused devices. Is that right?
`A. That’s right.
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`Id. at 75:14–20 (emphasis added).
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`Case 1:21-cv-00896-ADA Document 468 Filed 06/28/23 Page 6 of 10
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`Fintiv’s opposition confirms it has no evidence of a “widget” in the accused products; that
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`is, the accused products contain no “software that is either an application or works with an
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`application, and which may have a user interface.” See ECF No. 86 at 17, 34. Fintiv first responds
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`that Apple is misreading the construction of “widget” to require “software code” because the word
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`“code” is not the Court’s construction of “widget” and source code is not the only way Fintiv can
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`prove Apple’s infringement. See ECF No. 300 at 9–10. Not so. Fintiv cites only two cases in
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`support of its arguments (see id. at 10), but neither case applies here. In Tarkus Imaging Inc. v.
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`Adobe Sys., Case No. 10-63-LPS, 2012 WL 2175788 (D. Del. June 14, 2012), the court denied
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`summary judgment of noninfringement because the court was “not persuaded” by the fact that
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`“Tarkus’s expert has not identified specifically infringing source code.” Id. at *3. But unlike Dr.
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`Shamos, the plaintiff’s expert in Tarkus relied on “testimony from a Canon Rule 30(b)(6) witness
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`on source code [and] the expert report of William Elswick, an expert for Tarkus who personally
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`reviewed the source code.” Id. at *3 n.2. Here, Dr. Shamos cites no deposition testimony nor any
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`expert who “personally reviewed” the Apple source code to support his speculation that there must
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`be a “widget” in the products.1 Critically, Apple is not misconstruing the court’s construction of
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`“widget” to require source code; Apple is showing the complete devoid of evidence that Dr.
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`Shamos presented in his expert report to prove infringement.
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`1 i4i Ltd. Partnership v. Microsoft Corp., 598 F.3d 831, 847–48 (Fed. Cir. 2010), also does not
`support Fintiv. Contrary to Fintiv’s misleading parenthetical (“affirming jury finding of
`infringement despite no source code available to be presented,” ECF No. 300 at 10), the lack of
`source code related to invalidity, not infringement. The prior art source code had been destroyed
`years before litigation began, so the dispute “turned largely on the credibility of [the prior art’s]
`creators.” Id. at 846. The court affirmed the jury’s finding of validity because “the jury was free
`to disbelieve Microsoft’s expert … and credit i4i’s expert, who opined that it was impossible to
`know whether the claim limitation was met without looking at S4’s source code.” Id. at 848
`(emphasis added). Here, Dr. Shamos had Apple’s source code, but still found no “widget.”
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`Fintiv then contends that it has proffered sufficient evidence (source code and non-source
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`code) to defeat Apple’s Motion. See ECF No. 300 at 9. But Fintiv’s opposition never identifies
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`what “software” or “software code” comprises the claimed “widget” in the accused products. See
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`ECF No. 300 at 9–23. Fintiv instead points to multiple things that are not the claimed “widget.”
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`For instance, Fintiv claims that “Apple’s own technical documents reference ‘widgets’ and
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`‘widget’ in connection with other features.” Id. at 11–12 (emphasis added, pointing to Home
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`Screen widgets); see also id. at 16 (“Apple has marketed other features as ‘widgets.’”). The Court
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`finds that those “other features” have nothing to do with provisioning in Apple Wallet or Fintiv’s
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`infringement claims. Fintiv also claims that Apple servers allegedly “build widget assets,” but
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`Fintiv does not say what those “assets” purportedly are. Id. at 13. Fintiv also speculates that an
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`“underlying file that produces the image of a card on the screen can in fact have executable code”
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`(id. at 21, emphasis added), but speculation is not a substitute for evidence. And Fintiv points to a
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`source code module,
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` (
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`id. at 18), that “has no purpose and
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`is not used on the Mac,” but never says that module is the claimed “widget”—because it is not.
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`ECF No. 270-6 (“Diederich Depo.”) at 18:4–7; 114:17–25.
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`Fintiv also points to Dr. Shamos’s report at paragraphs 359–60. ECF No. 300 at 13. There,
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`Dr. Shamos relies on the following three screenshots to show that “the widget (providing a user
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`interface) is also provisioned (made available for use).” Id.
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`Shamos Report ¶¶ 359–60. But neither Dr. Shamos nor Fintiv can identify specifically what in
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`these screenshots is the claimed “widget.” See id. Dr. Shamos merely states that “[e]ach screenshot
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`below (showing the virtual card image for the Visa card) presents a software (with a user interface)
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`that is made available to the user for selecting, via its user interface, among the available ones to,
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`for example, view the card's details or perform transactions.” Id. ¶ 359. This is mere speculation
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`and is insufficient to establish a genuine dispute of material fact that the accused products infringe
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`the “widget” limitation.
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`Fintiv’s opposition relies on source code modules that its own expert testified under oath
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`are not the claimed “widget.” See ECF No. 300 at 15 (“The foregoing source code modules of
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`Apple’s severs are used to create widgets that are stored in Apple’s servers.”). Dr. Shamos was
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`asked about each of the cited source code modules, and he confirmed under oath that none of them
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`is the accused “widget.” See Shamos Depo. at 61:21–23 (
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` is not the
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`widget); 70:11–12 (
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` is not the widget); see also id. at 53:11–14; 62:11–
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`12; 66:17–20; 69:20–24; 70:16–22; 71:14–17; 71:18–24; 71:25–72:5 (each of the source code files
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`8
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`Case 1:21-cv-00896-ADA Document 468 Filed 06/28/23 Page 9 of 10
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`cited in Shamos Report ¶ 309 is not the claimed widget). As the file names reveal, Fintiv is pointing
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`to passes, implying they might be “created” as the “widget.” See ECF No. 300 at 15, 18. But Dr.
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`Shamos also confirmed that no matter what creates them, passes are not the widget. Shamos Depo.
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`at 62:11–12; 66:17–20; 69:20–24. Thus, nowhere does Fintiv’s opposition state that “the ‘widget’
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`in the accused product is X,” where X is an identifiable piece of software, as required by the
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`Court’s construction.
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`Dr. Shamos’ Speculation About Nonexistent “Widgets” In The Accused
`C.
`Products Is Not Enough To Survive Summary Judgment.
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`Faced with its failure to identify software that constitutes the accused “widget,” Fintiv cites
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`Dr. Shamos’ speculation that there must be a widget somewhere in the accused products, even
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`though he failed to identify it in his expert report. Compare ECF No. 300 at 9 (“And--are you
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`prepared to testify at trial that there is a widget in the accused Apple devices that infringes the
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`claims of the ’125 patent? A. Yes.”) with Shamos Depo. at 73:12–74:5 (agreeing that his report
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`fails to identify the source code or software that is the accused widget). But under settled Federal
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`Circuit law, “the non-movant can't defeat summary judgment with conclusory allegations,
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`unsupported assertions, or only a scintilla of evidence.” Traxcell Techs., LLC v. Sprint
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`Commc'ns Co. LP, 15 F.4th 1121, 1128 (Fed. Cir. 2021) (citing Batiste v. Lewis, 976 F.3d 493,
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`500 (5th Cir. 2020)). Rather, a plaintiff must prove with admissible evidence that the accused
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`products meet each limitation of an asserted claim. See Catalina Mktg. Int’l, Inc. v.
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`Coolsavings.com, Inc., 289 F.3d 801, 812 (Fed. Cir. 2002). Thus, Fintiv cannot survive summary
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`judgment by citing testimony that its expert is prepared to speculate at trial “that there is a
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`widget in the accused Apple devices.” ECF No. 300 at 9. Simply saying, “it must be in there
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`somewhere” is no substitute for the requirement that Fintiv “set forth specific facts showing that
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`there is a genuine issue for trial” with respect to the “widget” limitation. See Anderson, 477 U.S. at
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`9
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`Case 1:21-cv-00896-ADA Document 468 Filed 06/28/23 Page 10 of 10
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`256. Fintiv’s opposition is devoid of any such “specific facts,” because it cannot identify a
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`“widget” in the accused card provisioning process.
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`On the contrary, Fintiv doubles down on its speculation by arguing that “Apple’s own
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`technical documents reference ‘widgets’ and ‘widget’ in connection with other features.” ECF No.
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`300 at 11 (emphasis added), citing ECF No. 300 Exs. 13, 14. As Fintiv admits, the cited evidence
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`has nothing to do with Apple Pay or Apple Wallet; rather, the evidence relates to “us[ing] widgets
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`on your Home Screen.” Id. And not surprisingly, Dr. Shamos cites none of this evidence in his
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`expert report, because it does not bear on infringement.2 So Fintiv’s speculation—without even
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`the support of its expert—that “there must be widgets in Apple Pay because there are widgets in
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`other parts of the product” is even further removed from the “specific facts” Fintiv was required
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`to set forth in opposing the Motion. Anderson, 477 U.S. at 256.
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`IV. CONCLUSION
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`Apple has presented sufficient evidence that no genuine dispute of material fact exists on
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`non-infringement. Fintiv then failed to demonstrate a genuinely disputed material fact, or indeed
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`any facts at all, showing that Apple infringes the “widget” limitation present in all asserted claims
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`of the ’125 patent. Accordingly, Defendant Apple’s Motion for Summary Judgment of Non-
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`Infringement (ECF No. 270) is GRANTED.
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`SIGNED this 21st day of June, 2023.
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`2 Fintiv also cites an undated, one-page presentation slide titled “Provisioning: Requirements.”
`ECF No. 300 at 13. Dr. Shamos neither cites nor discusses this document, and it says nothing about
`“software that is an application or works with an application.” The document refers to data that is
`sent and received, including “required fields for the card to be provisioned,” “payment product
`name,” and whether “card supported or not.” The Court finds this document is not evidence of the
`claimed “widget.”
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`10
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