See Transmatic, Inc. v. Gulton Indus., Inc., 58 F.3d 1270, 1278
It is initially the burden of the party moving for summary judgment to
establish that there is no genuine issue of material fact and that it is
therefore entitled to judgment as a matter of law. See British Airways
Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978). If the moving party
meets its initial burden of identifying for the court those portions of
the materials on file that it believes demonstrate the absence of any
genuine issues of material fact, then the burden of production shifts so
that the non-moving party must set forth specific facts showing that
there is a genuine issue for trial. See T.W. Elec. Serv., Inc. v. Pacific
Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir, 1987) (citing
Celotex, 477 U.S. at 324, 106 S.Ct. at 2553). To carry this burden, the
nonmoving party must do more than simply show that there is some
metaphysical doubt as to the material facts. See Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348,
1356, 89 L.Ed.2d 538 (1986). The mere existence of a scintilla of
evidence is insufficient; there must be evidence on which the jury could
reasonably find for the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).
Evidence that "is merely colorable, or is not significantly probative,"
is not sufficient to avoid summary judgment. See id. at 249-50, 106
Conversely, summary judgment cannot be granted where a genuine dispute
exists as to any material fact. See Fed. R. Civ. Proc. 56(c). A material
fact is one which might affect the outcome of the case under the
applicable law. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute
about a material fact is genuine if a reasonable jury could return a
verdict for the non-moving party. See id. In judging evidence at the
summary judgment stage, a court cannot make credibility determinations or
weigh conflicting evidence, and must draw all inferences in the light
most favorable to the nonmoving party. See T.W. Electric, 809 F.2d at
630-31 (citing Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356).
Conclusory, speculative testimony and arguments in moving papers are
insufficient to raise genuine issues of fact and defeat summary
judgment. See Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738
(9th Cir. 1979).
2. Doctrine of Equivalents
Under the "doctrine of equivalents," a product that does not literally
infringe upon the express terms of a patent claim may still infringe if
there is "equivalence" between the accused product and the patent claim.
See Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17,
20, 117 S.Ct. 1040, 1045, 137 L.Ed.2d 146 (1997); Graver Tank & Mfg. Co.
v. Linde Air Products Co., 339 U.S. 605, 609, 70 S.Ct. 854, 94 L.Ed. 1097
(1950). This doctrine allows for a finding of infringement where
differences between a patented device and an accused product are
insubstantial, and an accused device has traditionally been held to
infringe if it performs substantially the same function in substantially
the same way to achieve substantially the same result as the claimed
invention. See Graver Tank, 70 S.Ct. at 856.
Application of the doctrine, however, has recently been limited by the
Supreme Court to exclude broad comparisons that would eliminate any
individual claim element. See Warner-Jenkinson, 117 S.Ct. at 1049. "Each
element contained in a patent claim is deemed material to defining the
scope of the patented invention, and thus the doctrine of equivalents
must be applied to individual elements of the claim, not to the invention
as a whole." Id. Whether a substitute element in an accused device
matches the function, way, and result or is substantially different from
a corresponding claimed element is determined by an analyzing the role
played by each element in the context of the specific patent claim. Id. at
1054. "If a theory of equivalence would vitiate a
claim limitation, however, then there can be no infringement under the
doctrine of equivalents as a matter of law." Tronzo v. Biomet, Inc.,
156 F.3d 1154, 1160 (Fed.Cir. 1998) (citing Warner-Jenkinson, 117 S.Ct.
at 1049, 1053 n. 8).
The following facts are undisputed. The accused Intelsat VII is a
pitch-momentum biased inclined orbit satellite that uses momentum wheels
to control satellite attitude. In normal operation ("V mode"), the
Intelsat VII rotates two momentum wheels ("V wheels") in opposite
directions in a formation about the pitch axis of the satellite. These
wheels rotate at high speed according to a predetermined rate schedule
and do not change direction. A third wheel ("L wheel" or "reaction
wheel") does not rotate when the satellite operates in V mode, and serves
as a backup wheel in the event that either V wheel fails. Should one V
wheel fail, the L wheel would then rotate in a direction opposite that of
the remaining V wheel. The L wheel is thus capable of rotating in either
direction, with the two modes designated as L1 and L2. The axis of this
reaction (L) wheel is mounted parallel to the yaw axis, and is thereby a
"transverse wheel" as that term is used in the '772 patent, rendering the
reaction wheel the wheel of interest in an infringement analysis.
1. "varies sinusoidally"
Paragraph (b) of claim 1 of the '772 patent calls for a:
means for rotating said [transverse] wheel in
accordance with a predetermined rate schedule which
varies sinusoidally over the orbit at the orbital
frequency of the satellite whereby the attitude of
said satellite is offset in response to the effect of
said rotating wheel by the direction of the pitch axis
being changed with respect to said momentum vector,
the direction of said pitch axis with respect to the
inclined orbit normal varying sinusoidally at the
orbital frequency to null said roll pointing error due
to said orbit inclination, the momentum vector being
maintained perpendicular to the plane of the
geosynchronous orbit to null said yaw pointing error
due to said orbit inclination,
'772 patent at col. 10:14-27 (emphasis added). In its earlier Claim
Construction Order, the Court construed "varies sinusoidally" to mean a
variation in a sine-shaped curve that passes through zero, and excluded
any other components that might cause the transverse wheel speed not to
pass through zero. It is undisputed that the speed of the accused reaction
wheel does not slow to zero and reverse direction as required by the
Court's earlier construction of the term "varies sinusoidally."
Consistent with its earlier construction of "varies sinusoidally," and
despite Lockheed's invitation to reinterpret this term, the Court finds
that this limitation is not literally met. It is also undisputed that the
speed of the Intelsat VII reaction wheel varies according to a rate
schedule that is not purely sinusoidal, providing an additional basis for
finding that this limitation is not literally met. Accordingly, the Court
concludes as a matter of law that the Intelsat VII does not literally
infringe the '772 patent. This leaves only the matter of possible
infringement through the doctrine of equivalents.