It has a video display and a loudspeaker for presenting information to customers, a printer, a goods dispenser, a coin box and credit card reader for accepting payments, and a telephone for communicating with the staff of a remote central station. With the aid of the video display, the customer is able to interact with the system to select the offered goods and services. It was described by Lockwood's patent attorney as "an auto-mated teller machine . . . with the addition of an audio-visual display to give information about the product or service sold through the terminal."
Lockwood alleges that American has infringed Claim 11 of the '115 patent.
B. The '359 Patent
The '359 patent claims a collection of similar machines interconnected through a computer network. The machines automatically dispense information, services and products to customers in a self-service fashion. The self-service information and sales terminals contain automation which creates, for example, a "factitious insurance agent" to interactively communicate with prospective customers, to collect customer information and to provide information to customers on various alternative insurance policies. If the customer decides to make a purchase, the terminal accepts the customer's credit card, institutes a credit check and, on approval, dispenses a policy.
Lockwood claims that American has infringed independent Claim 1 and dependent Claims 2, 4 and 7.
C. The American SABREvision System
The Sabrevision system is a manually operated system in which a travel agent gathers sales information from a customer either in person or by telephone. The travel agent then uses a computer terminal access schedule, cost and availability information stored in the central Sabre computer. The travel agent may also access a stored library of still photographs of places of interest to travelers such as hotels, restaurants, and cruise ships, as well as maps of countries, cities and airports, and display these still images on the computer terminal screen. The travel agent then gives the information to the customer as if it had been locked up in the agent's library or travel reference books.
If the customer decides to purchase a ticket, the travel agent solicits credit information or accepts cash payment from the customer. If a credit card is used, the travel agent must manually type in the credit information on the keyboard of the agent's computer terminal. Once credit is approved, the Sabre host computer commands a ticket printer at the travel agency to print a ticket which the travel agent delivers to the customer. The Sabrevision system accepts no information directly from the customer.
American moves for summary judgment on non-infringement grounds. In short, American's argument is that the Lockwood patents do not cover the Sabrevision system because the claims in each patent recite a type of self-contained, self-service computerized vending machine designed to replace travel agents or other sales personnel through advanced automation. In contrast, American argues that the Sabrevision system is not self-contained and is not sufficiently automated to replace travel agents. To the contrary, American argues it is an in-office computer system used exclusively by travel agents.
Additionally, American argues that Lockwood is estopped from arguing that the Sabrevision system is "equivalent" to that which the patents may cover. It argues that the arguments Lockwood made when prosecuting the patents are inconsistent with the equivalency arguments Lockwood now makes.
Lockwood argues that summary judgment must be denied because there are material issues of fact relating to the definition of several of the terms in the claims.
Federal Rule of Civil Procedure 56(c) mandates the entry of summary judgment against a party which "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 Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the burden of proving that there is no genuine issue of material fact and that judgment may be entered as a matter of law. Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). "[A] party opposing a properly supported motion for summary judgment . . . 'must set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citing Fed. R. Civ. P. 56(e)) (footnotes omitted). The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Id. at 255.
Claim construction is a question of law which may be resolved on summary judgment. Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1387 (Fed. Cir. 1992). The words in a claim should be given their ordinary meaning unless it appears that the inventor used them differently. See ZMI Corp. v. Cardiac Resuscitator Corp., 844 F.2d 1576, 1579 (Fed. Cir. 1988). It is Lockwood's burden on this motion to come forward with sufficient evidence in support of his proposed claim construction to warrant a trial. See Anderson, 477 U.S. at 250-252; Intellicall, 952 F.2d at 1387-88.
II. ALLEGED INFRINGEMENT OF THE '115 PATENT
A. Literal Infringement
Infringement is found only when each and every limitation of a patent claim is met by the accused product exactly or by a substantial equivalent. See, e.g. Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 934-36 (Fed. Cir. 1987).
This court agrees with American that Claim 11 contains several elements which are lacking in the accused Sabrevision system.
1) Self-Contained Apparatus
The preamble of Claim 11 of the '115 patent recites the claimed invention as a "substantially contained apparatus dimensioned to be easily transported." American submits evidence of the prosecution history which indicates that Lockwood specifically added this preamble language to distinguish his invention from a prior art patent, U.S. Pat. No. 3,805,384, which served as the Examiner's principal reference for rejecting Lockwood's broader claims.
The accused SABREvision system does not have any feature to correspond to this limitation. SABREvision is a computer system made up of a multitude or separate apparatuses which are distributed throughout the office space occupied by a travel agency for the convenience of the travel agents. This system is not transportable and is not contained in any kind of housing.
Lockwood argues that, on the contrary, the SABREvision system is self-contained. It argues and submits expert testimony to the effect that "self-contained" means an apparatus or collection of components which includes the material necessary for the apparatus to function on its own. Additionally, it argues that the SABREvision system is easily transportable because the parts are easily transportable and the system can be easily delivered and set up.
Lockwood argues that American can not avoid infringement by simply adding additional computers to the claimed invention, which is the basic apparatus. See A.B. Dick Co. v. Burroughs Corp., 713 F.2d 700, 703 (Fed. Cir. 1983). However, this court agrees with American that the essence of the SABREvision is the fact that it is an office network, not a self-contained "customer-oriented" computer such as Lockwood's patent describes.
2) Audio-Visual Means
The first limitation following the preamble of Claim 11 requires "an audio-visual means for selectively dispensing information from a plurality of data sources." In its ordinary sense, the word audio-visual connotes the use of both the sense of sound and the sense of sight. See Webster's Ninth New Collegiate Dictionary.
Lockwood argues that the term audio-visual includes in its ordinary meaning the use of either sight or sound, or both. It points to the definition of "audiovisual works" in the Copyrights statute, 17 U.S.C. § 101, which describes them as "works that consist of a series or related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any. Thus, Lockwood argues that the SABREvision system would still be considered an audio-visual means, even if it doesn't produce sound.
However, this court finds that the use of the term audio-visual in the specification of the '115 patent is wholly consistent with the definition of audio-visual which incorporates both sound and sight. For example, the specification states "a high quality audio-visual travel log can utilize practically all the human senses to motivate and influence a customer to select a particular vacation or destination." Pretty Decl. Exh. A at 8. Additionally, during prosecution of the '115 patent, Lockwood argued the significance of audio capability to distinguish Claim 11 over U.S. Patent No. '759 to Yuris, which had only video capability. He stated, "Yuris does not feature any means to promote the goods or services by audio or audio-visual means. Thus, it is clear that he also drew a distinction between the two terms. The only logical conclusion is that audio-visual was meant to include both audio and visual capability.
In contrast the Lockwood's patent, the SABREvision system relies exclusively on sight, not sound. The SABREvision system has no audio capability, apart from an industry standard "beep" from the personal computer. The beep does not dispense any information. Additionally, SABREvision does not have the means to retrieve and cause to output audio information which is stored on a removable media, as required by the specification. Thus, the system lacks the audio portion of the claim limitation "an audio-visual means for selectively dispensing information."
3) Customer Operated Means
Three limitations of Claim 11 require "customer operated means" within the self-contained, transportable machine. These limitations are:
a) customer operated means for selecting information to be dispensed on said audio-visual means . . . Col. 11, lines 28-29.
b) means operated by the customer for selecting at least one item to be dispensed by said electromechanical means . . . Col. 12, lines 15-17.