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Eagle View Technologies, Inc. v. Xactware Solutions, Inc.

United States District Court, D. New Jersey, Camden Vicinage

December 4, 2018

Eagle View Technologies, Inc. et al., Plaintiffs,
v.
Xactware Solutions, Inc. et al., Defendants.

          OPINION

          ROBERT B. KUGLER United States District Court Judge.

         This is a patent infringement action brought by Eagle View Technologies and Pictometry International [together “Plaintiffs”] against Xactware Solutions and Verisk Analytics [together “Defendants”]. Before the Court is Plaintiffs' motion for Partial Summary Judgment [“motion”] under Federal Rule of Civil Procedure [“Fed. R. Civ. P.” or “Rule”] 56(a) to exclude U.S. Patent Number [“Pat. No.”] 8, 417, 061 [“Sungevity”] as prior art to the asserted claims of U.S. Pat. No. 8, 078, 436 [“ ‘436 patent”]. For the reasons below, Plaintiffs' motion for partial summary judgment is DENIED.

         An appropriate Order accompanies this Opinion.

         1.0 Background and Procedure

         Plaintiffs are the owners of the patents at issue[1] that recite, among other things, business methods, systems, and computer readable storage media for providing a roof repair estimate. The claimed invention applies photogrammetric methods, that is, trigonometric calculations, to images of rooves in aerial photographs to compute roof measurements, in particular, roof pitch. Defendant Xactware Solutions, Inc., is a subsidiary of Defendant Verisk Analytics, and provides online technology tools and systems to insurance carriers, remodelers and construction service providers for determining replacement-cost. The parties have asserted they are competitors to each other (Doc. 15:¶1)[2].

         The Court assumes the parties' familiarity with the many proceedings in this litigation and summarizes only those events relevant to the motion. On 23 September 2015, plaintiffs filed their original complaint against defendants and on 30 November 2015, an amended complaint. Both of these (Docs. 1 and 30) allege direct and indirect infringement under 35 U.S.C. § § 271(a) and (b) of at least one claim of each patent at issue. On 27 January 2017, defendants filed a motion to amend their invalidity contentions (Doc. 160) to add U.S. Pat. No. 8, 417, 062 to Sungevity as a prior art reference against certain claims of the ‘436 patent, which on 2 May 2012, Magistrate Judge Schneider granted.

         2.0 Parties' Contentions

         Plaintiffs seek partial summary judgment that Sungevity be excluded as prior art to the asserted claims of the ‘436 patent. Their contention is that defendants have not met the burden of production by presenting no expert testimony that shows Sungevity's entitlement to the filing date of both its provisional applications. Doc. 473: 3. Plaintiffs contend, since defendants have not affirmatively detailed how both Sungevity provisional applications enable the Sungevity claims as granted, there is no evidence that Sungevity is prior art to the ‘436 patent. Therefore, no genuine dispute of material fact can exist regarding the invalidity of the ‘436 patent claims, which motivates for a grant of this motion. Id. at 5-7.

         Defendants assert they have met their burden of proof. They argue it was the U.S. patent examiner's removal of the ‘436 patent as prior art over the Sungevity claims that cleared the way for the Sungevity grant. Defendants' argument is based on remarks of Sungevity's patent practitioner in the 04 September 2012 response to a Non-Final Rejection. There it is asserted the Pershing provisional application, U.S. Prov. App. 60/925, 073, does not support the ‘436 patent claims as granted. Further asserted there is that the priority date of the ‘436 patent is its filing date of 16 October 2008, which is eight months later than Sungevity's priority date of 1 February 2008 from its earliest provisional filing.

         Up to this point, the parties do not generally dispute any material fact. Distilled to its essence, the point of contention is whether defendants have met their burden of persuasion, which plaintiffs assert requires defendants to show in detail how the Sungevity provisional applications support under 35 U.S.C. 112(1) (pre-A.I.A.)-or in a term of art, enable--the Sungevity claims as granted. Defendants argue the very allowance of Sungevity must evidence that the Sungevity provisionals enable the granted claims, else why would the U.S. patent examiner issue the Sungevity allowance.

         3.0 Legal Standards

         In reviewing motions for summary judgment, the Court determines whether there is a “genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). The moving party has the initial burden of showing no such genuine dispute exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If this showing is made, the burden then shifts to the non-moving party to offer evidence establishing the existence of a genuine dispute that compels a trial. Id. at 324. To meet its burden, the non-moving party must present more than mere allegations or denials, that is, “identify those facts of record which would contradict the facts identified by the movant.” Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002). If the non-movant fails to do so, the Court must grant summary judgment. Big Apple BMW v. BMW of North America, 974 F.2d 1358, 1363 (3d Cir.1992);

         A fact is material only if it can “affect the outcome of the suit under governing law” (Kaucher v. Cty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)). A material fact raises a genuine dispute “if the evidence is such that a reasonable jury could return a verdict” for the non-moving party. Healy v. N.Y. Life Ins. Co., 860 F.2d 1209, 1219 n. 3 (3d Cir.1988). The Court considers all facts, their logical inferences, and all ambiguities in the light most favorable to the non-moving party (Anderson v. Liberty Lobby, 477 U.S. 242, 255; Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir.2013)) and determines not “the truth of the matter, ” but whether a genuine dispute necessitates a trial. Anderson, 477 U.S. at 242; Petruzzi's IGA Supermarkets v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir.1993).

         When contradictory, material facts are presented, a genuine dispute is raised and undercuts a decision for summary judgment. However, even with a presentation of contradictory facts, there can be no genuine dispute when one party fails “to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322-23. When the movant has completely failed to show an ...


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