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Case 1:06-cv-10980-DPW Document 77 Filed 03/07/2007 Page 1 of 17
___________________________________
)
SKYLINE SOFTWARE SYSTEMS, INC., )
)
Plaintiff, ) CIVIL ACTION NO.
) 06-10980-DPW
v. )
)
KEYHOLE, INC. and GOOGLE, INC., )
)
Defendants. )
___________________________________)
United States Patent No. 6,496,189 (the "'189 patent"). The '189
infringes the '189 patent. For the reasons set forth below, I
find as a matter of law that Google does not infringe the '189
patent, and will grant the Google motion for summary judgment as
Dockets.Justia.com
Case 1:06-cv-10980-DPW Document 77 Filed 03/07/2007 Page 2 of 17
I. SUMMARY JUDGMENT
genuine issue as to any material fact and that the moving party
Murata Mach. Ltd., 731 F.2d 831, 835 (Fed. Cir. 1984). Once the
Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000)
(1st Cir. 1999) (quoting Smith v. F.W. Morse & Co., 76 F.3d 413,
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Alicea, 437 F.3d 145, 154 (1st Cir. 2006) (internal citation
must view "the facts in the light most favorable to the non-
favor." Pacific Ins. Co., Ltd. v. Eaton Vance Mgmt., 369 F.3d
law on facts that are not disputed. See Adria Int'l Group, Inc.
v. Ferre Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001); Wightman
v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir.
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(Fed. Cir. 1995), aff’d, 517 U.S. 370 (1996). I took the first
421 F.Supp.2d 371 (D. Mass. 2006) and November 16, 2006
1. Legal Standard
1
The parties disagree over how the accused Google Earth
products should be evaluated - individually or as a unified
system. Skyline's First Amended Complaint of November 9, 2006
sheds little light on the issue. It simply states:
On information and belief, the products of which
Skyline currently is aware that infringe the '189
Patent include, but are not limited to: Keyhole Pro,
Keyhole 2 Pro, Keyhole LT, Keyhole 2 LT, Keyhole NV,
Keyhole 2 NV, Earthviewer, Keyhole Enterprise Client,
Keyhole 2 Enterprise Client, Keyhole EC, Keyhole 2 EC,
Keyhole's Enterprise Solutions products, Keyhole 2
Fusion LT, Keyhole 2 Server, Google Earth, Google Earth
Plus, Google Earth Pro, Google Earth Enterprise
Solution (including Google Earth Fusion, Google Earth
Server and Google Earth Enterprise Client), the Geo
Coder Server and any predecessor or successor products
and related software services provided by Defendants in
connection with these products.
First Amended Complaint, ¶8.
For purposes of this summary judgment analysis, I have
considered the evidence in the light most favorable to Skyline,
and have treated the accused products as a unified whole.
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Inc. v. NFM, Inc., 292 F.3d 718, 724 (Fed. Cir. 2002). Every
223 F.3d 1351, 1358 (Fed. Cir. 2000), citing Amhil Enters., Ltd.
v. Wawa, Inc., 81 F.3d 1554, 1562 (Fed. Cir. 1996). If any claim
Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed. Cir. 2000),
cert. denied, 531 U.S 993 (2000). When material facts pertaining
Mills, Inc. v. Hunt-Wesson, Inc., 103 F.3d 978, 983 (Fed. Cir.
1997).
2. Analysis
'189 patent, i.e., Claims 1-3, 5, 7-9, 11-12, 16, 18-19, and 21-
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a. Claim 1
Claim 1 reads:
judgment motion, Google must simply show that Skyline cannot meet
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421 F.Supp.2d 371, 388 (D. Mass. 2006). The second Markman Order
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"quibbling that these three functions [of the renderer] are not
on its motion for summary judgment, Skyline must show that the
2
Skyline's ultimate position, as presented at the summary
judgment oral argument, appears to be that the Google Earth
Client, a "software application, running on the local processor,"
itself "performs the three renderer functions." [Skyline Slide
#29] However, Skyline also suggests that unspecified pieces of
the Google Earth Client source code perform the functions of the
renderer, suggesting a more granular definition. [Id.] In either
formulation, the Skyline position, which I reject, erroneously
conflates the functions of the renderer with the separate thing
that is a renderer. This takes considerable and unwarranted
poetic license with the Markman construction and, as I noted
during the hearing on the motions, calls to mind Yeats’ question:
"How can we know the dancer from the dance?" W. B. Yeats, Among
School Children, THE COLLECTED POEMS OF W. B. YEATS, 215, 217 (Richard
J. Finneran ed., rev. 2d ed. 1996).
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Skyline's claim fails, because the Google Earth Server, the non-
distinct entities.
3
The Google Earth Server is closer to the "remote server"
referenced in Claim 1 than the "renderer."
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contact with said heated water, and (3) keeps resulting liquid
by Claim 1.
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4
See 421 F.Supp.2d at 385, construing "indication of a
respective resolution level" as "the identification of the
particular resolution level of the data required."
5
Because Skyline has failed to proffer sufficient evidence
to avoid summary judgment on noninfringement, its own motion for
summary judgment must fail on this limitation, as a matter of
course.
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to satisfy the claim limitation that the provided block "is not
the server. Skyline argues that this test satisfies the '189
patent claim, because "the claim contains neither the 'equal to'
misses the point. The '189 patent only requires that the
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software did both a "greater than" and "less than" test, the
resolution level."
6
If X is greater than Y, necessarily X does not equal Y.
However, if X is not greater than Y, then X is either less than
or equal to Y. (5 > 3, but 2 Ý 3 and 3 Ý 3)
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additional blocks even when the desired resolution level has been
reached (and do not stop until a higher than desired level has
7
The illustrative situation provided by Skyline at the
summary judgment oral argument, where the desired resolution
level is 14.8 [Skyline Slide #33], is unconvincing for at least
two reasons. First, it does not address how the '189 patent and
Google Earth treat whole number resolution levels. For a desired
resolution level of 14, for example, the '189 patent dictates
that downloading must stop when the Level 14 data block is
delivered. Google Earth, in contrast, would download until the
block greater than Level 14, i.e., Level 15, has been downloaded.
Second, the '189 patent does not seem logically able to handle
non-whole number resolution levels. Under Skyline's scenario, no
data block with resolution level 14.8 would ever be downloaded,
so the conditional of the '189 patent ("downloading . . . if the
provided block . . . is not at the indicated resolution level")
would always be satisfied, meaning downloading would never stop,
even when Level 15 data had been received.
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b. Claim 12
Claim 12 reads:
8
As I have previously noted, "render" appears to be a
typographical error and neither party contends that the term
should be construed as anything other than "renderer."
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all other asserted claims of the '189 patent. Google argues, and
III. CONCLUSION
2007, the parties shall file a joint status report outlining what
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trial date in this matter set for June 4, 2007 and related pre-
____________________________
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE
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