Case 2:08-cv-00484-JRG Document 517

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION INFORMATION PROTECTION AND AUTHENTICATION OF TEXAS, Plaintiff, v. SYMANTEC CORP., et al., Defendants.

CIVIL ACTION NO. 2:08-CV-484

ORDER Before the Court is Defendant Kaspersky Lab, Inc.s (Kasperskys) Motion for Reconsideration of Redacted Order (Court Doc. No. 503), filed February 10, 2012. Dkt. No. 508. Also before the Court are Plaintiffs response and Kasperskys reply. Dkt. Nos. 513 & 514. Having considered the briefing and all relevant papers and pleadings, the Court finds that Kasperskys motion should be GRANTED IN PART and DENIED IN PART. I. BACKGROUND AND THE PARTIES POSITIONS Plaintiff asserts United States Patents No. 5,311,591 (the 591 Patent) and 5,412,717 (the 717 Patent) (collectively, the patents-in-suit), which relate to computer firewalls. The Court entered a Claim Construction Order on February 7, 2011, and ruled on a motion for reconsideration thereof on April 11, 2011. Dkt. Nos. 447 & 453. Kaspersky moved for summary judgment, arguing that the preambles of the asserted claims, which all recite a processor, are limiting and that Kaspersky cannot infringe because it sells only software. See Dkt. No. 474 at 3. Kaspersky also argued non-infringement on another ground that is not relevant to the present motion. See id. at 5-12. The Court granted-in-part and

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denied-in-part Kasperskys motion for summary judgment of non-infringement on October 12, 2011. The Courts original Order (Dkt. No. 499) was entered under seal, and upon submission of redactions, the Court entered a Redacted Order (Dkt. No. 503). Both may be referred to herein as the Order. In short, the Court ruled that the processors recited in the preambles are not limiting, but on other grounds the Court granted summary judgment of non-infringement for Kaspersky and against Plaintiff as to (1) direct infringement of the asserted claims of the 591 Patent, namely Claims 1, 22, 24, and 42; and (2) indirect infringement of all asserted claims, namely Claims 1, 22, 24, and 42 of the 591 Patent and Claims 1, 10, 61, 120, 129, and 130 of the 717 Patent. Dkt. No. 503 at 18. Three months later, on February 10, 2012, Kaspersky filed the present motion, citing a subsequent decision by the Court of Appeals for the Federal Circuit in Typhoon Touch Technologies, Inc. v. Dell Inc., 659 F.3d 1376 (Fed. Cir. 2011), decided November 4, 2011. Kaspersky argues that in light of Typhoon Touch, it becomes clear that the sale of software alone cannot directly infringe the Plaintiff[s] three remaining apparatus claims because those claims require hardware. Dkt. No. 508 at 1 (footnotes omitted). Kaspersky cites the parties Joint Claim Construction Chart as reflecting the parties agreement that certain means-plusfunction limitations in the bodies of the asserted claims (not the preambles, as previously argued) have corresponding structure that includes hardware, specifically PAI storage 7, or memory device 100, or disk 132, and the equivalent structures thereof. Id. at 3. Kaspersky seeks reconsideration of the Courts denial of total summary judgment of non-infringement, arguing that the remaining claims recite hardware and therefore cannot be infringed by sales of software. Plaintiff responds that under either Federal Rule of Civil Procedure (Rule) 59(e) or 2

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Rule 60(b), Kasperskys motion is untimely and insufficient. Dkt. No. 513 at 6. Kaspersky replies: IPATs response brief does not dispute the three substantive points underlying Kaspersky Labs motion for reconsideration: 1. In view of the Courts Redacted Order, the only infringement issue that remains in this case is whether selling software directly infringes IPATs apparatus claims; 2. The parties stipulated claim construction holds that the body of the apparatus claims requires a hardware memory device; and 3. IPAT and its expert do not allege that selling software infringes the remaining apparatus claims, or that the accused software includes a hardware memory device. Hence, there is no question of material fact for trial, and the Court has discretion to expand the findings of its Redacted Order under Fed. R. Civ. P. 56 to include the parties stipulated construction of the apparatus claims. IPAT has shown no prejudice from the timing of this motion and, therefore, judgment of noninfringement on the remaining apparatus claims should be granted and the case dismissed with prejudice. Dkt. No. 514 at 1. II. DISCUSSION A motion for reconsideration must satisfy strict standards.1 Motions for reconsideration serve the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence. Clower v. Wells Fargo Bank, N.A., No. 2:07-CV-510, 2009 WL 2424101, at *1 (E.D. Tex. Aug. 5, 2009) (quoting Texas Instruments, Inc. v. Hyundai Elecs. Indus., Co., 50 F. Supp. 2d 619, 621 (E.D. Tex. 1999)); see also Waltman v. Intl Paper Co., 875
Plaintiff argues that either Rule 59(e) or Rule 60(b) is applicable, but those rules apply to final judgments rather than interlocutory orders on summary judgment. Pursuant to Rule 54(b), any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties rights and liabilities. (emphasis added).
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F.2d 468, 473 (5th Cir. 1989); Templet v. Hydrochem Inc., 367 F.3d 473, 478-79 (5th Cir. 2004). Moreover, motions for reconsideration should not be used to . . . re-urge matters that have already been advanced by a party. Texas Instruments, 50 F. Supp. 2d at 621 (citations and quotations omitted). The Court hereby incorporates the discussion of other relevant law contained in the Courts Redacted Order. Dkt. No. 503 at 1-3. Kaspersky properly moves for reconsideration as to Claims 120, 129, and 130 of the 717 Patent, which recite methods (Claims 129 and 130 depend from Claim 120) (emphasis added): 120. In a digital computer system having digital data processing means for executing a plurality of digital computer programs for a computer user and memory means for storing digital program instructions and digital data, a method for providing improved computer security comprising the steps of: storing digital authorization information in said memory means which restricts an associated program from accessing resources when executed by said digital data processing means which are accessible to said computer user; and storing in at least one segment, digital data for associating said authorization information with at least one program to be executed by said processing means for said computer user. The Court found in the Order that [b]ecause Plaintiff points to no evidence of Kasperskys use of the asserted method claims other than through sales of software, which are insufficient . . ., Kasperskys motion should be GRANTED as to direct infringement of Claim 1, 22, 24, and 42 of the 591 Patent. Dkt. No. 503 at 13. The Orders analysis is thus clear that summary judgment should be granted on all of the asserted method claims in both patents-in-suit. Admittedly, the Court overlooked that Claims 120, 129, and 130 of the 717 Patent are method claims. This was a manifest error[] that should be corrected. Clower, 2009 WL 2424101, at *1. Thus, for the same reasons the Court granted summary judgment of non-infringement as

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to Claims 1, 22, 24, and 42 of the 591 Patent, the Court should also GRANT summary judgment of non-infringement as Claims 120, 129, and 130 of the 717 Patent. As to remaining claims (Claims 1, 10, and 61 of the 717 Patent), Kasperskys motion amounts to a new motion for summary judgment rather than a simple motion for reconsideration. The deadline for filing dispositive motions was June 24, 2011. See 3/9/2010 Second Amended Docket Control Order; 5/6/2011 Order, Dkt. No. 457; 7/13/2011 Order, Dkt. No. 464. Kaspersky has not moved for leave to file the present motion, so the motion should be denied as untimely. See Fed. R. Civ. P. 16(b)(4) (A schedule may be modified only for good cause and with the judges consent.). Also, because Kasperskys present motion amounts to a new motion for summary judgment, the motion should be denied for failure to comply with the Courts September 15, 2009 Motion Practice Order, which requires that before a motion for summary judgment can be filed, the moving party must first obtain leave of court through letter briefing. 9/15/2009 Motion Practice Order, Dkt. No. 260. Alternatively and in addition, Kaspersky is not entitled to reconsideration. Kasperskys motion for the summary judgment underwent full briefing, as well as oral argument. See Dkt. Nos. 474, 477, 494 & 496; see also 10/11/2011 Hrg Tr., Dkt. No. 500. Kaspersky then waited until more than three months after the Courts Order, three months after the Typhoon Touch decision that is ostensibly the basis for reconsideration, and less than one month before the trial setting2 to raise arguments (particularly as to the agreements on corresponding structure in the

After Kaspersky filed the present motion, the Court continued the March 2012 trial setting because the Courts schedule did not permit a trial in the above-captioned case in March 2012. See 3/1/2012 Order, Dkt. Nos. 515 & 516.

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parties Joint Claim Construction Chart) that could have been briefed and argued on Kasperskys original motion but simply were not. Kaspersky has shown no manifest errors of law or fact because Kasperskys present arguments were not briefed or argued to the Court in Kasperskys motion for summary judgment. Clower, 2009 WL 2424101, at *1. Finally, Kaspersky presents no newly discovered evidence. Id. Thus, to whatever extent Kasperskys motion as to Claims 1, 10, and 61 of the 717 Patent is deemed to be a motion for reconsideration rather than a new motion for summary judgment, reconsideration is not appropriate under these circumstances. In summary, based on the scheduling order, the Motion Practice Order, and, alternatively, the standards for reconsideration, Kasperskys motion should be DENIED as to Claims 1, 10, and 61 of the 717 Patent. III. CONCLUSION Defendant Kaspersky Lab, Inc.s Motion for Reconsideration of Redacted Order (Dkt. No. 508) is hereby GRANTED IN PART: The Court hereby GRANTS summary judgment for Kaspersky and against Plaintiff as to

non-infringement of Claims 120, 129, and 130 of the 717 Patent. Kasperskys motion is otherwise hereby DENIED. Any relief not specifically granted herein is hereby DENIED. IT IS SO ORDERED.

SIGNED this 16th day of March, 2012.

____________________________________ DAVID FOLSOM UNITED STATES DISTRICT JUDGE

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