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March 28, 2000


The opinion of the court was delivered by: Breyer, District Judge.


This is an action for infringement of Patent No. 5,602,987 (the "'987"). Now before the Court is plaintiff's motion for partial summary judgment of defendant's contributory infringement of Claim 10 of the '987 and defendant's cross-motion for summary judgment of non-infringement, as well as defendant's motion for summary judgment of the invalidity of Claim 10 of the '987. After carefully considering the papers filed by the parties, and having had the benefit of oral argument on March 17, 2000, plaintiff's motion for summary judgment of contributory infringement is GRANTED and defendant's cross-motion is DENIED. Defendant's motion for summary judgment of invalidity is also DENIED.


The parties are competitors in the flash memory storage card market, also referred to as a "PC Card." The memory cards are long-term non-volatile memory for computer systems, such as desktop computers, palm pilots, and digital cameras.

A. The Lawsuit

The '987 is owned by plaintiff Sandisk Corporation ("Sandisk"). The '987 describes a non-volatile computer memory system. Sandisk's lawsuit alleges that the PC Cards manufactured by defendant Lexar Media, Inc. ("Lexar") contributorily infringe the '987.

By order filed March 4, 1999, the Court construed the disputed claims of the '987. Sandisk subsequently moved for partial summary judgment on the ground that Lexar's PC Cards contributorily infringe Claim 10 of the '987 because when a consumer operates a digital camera with a Lexar PC card, the consumer "practices" every element of Claim 10. After the Court continued Sandisk's motion pursuant to Federal Rule of Civil Procedure 56(f) at Lexar's request, Lexar filed a counter-motion for a ruling that it does not infringe Claim 10 as a matter of law. Lexar also filed a motion for summary judgment of the invalidity of Claim 10. Those three motions are now before the Court.

B. Claim 10

Claim 10 of the '987 patent reads as follows*fn1:

A method of operating a computer system including a processor and a memory system, wherein the memory system includes an array of non-volatile floating gate memory cells partitioned into a plurality of sectors that individually include a distinct group of said array memory cells that are erasable together as a unit, comprising:
(a) providing said memory array and a memory controller within a card that is removably connectable to the computer system, said controller being connectable to said processor for controlling operation of the array when the card is connected to the computer system,
(b) partitioning the memory cells within the individual sectors into at least a user data portion and an overhead portion,
(c) causing the controller, in response to receipt from the processor of an address in a format designating at least one magnetic disk sector, to designate an address of at least one non-volatile memory sector that corresponds with said at least one magnetic disk sector,
(d) either writing user data to, or reading user data from, the user data portion of said at least one non-volatile memory sector, and
(e) either writing to, or reading from, said overhead portion of said at least one non-volatile memory sector, overhead data related either to said at least one non-volatile memory sector to data stored in the user data portions of said at least one non-volatile memory sector.

'987 Patent at 17:30-57.



Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions, on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is "material" only if it could affect the outcome of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A principal purpose of the summary judgment procedure "is to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

"In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all reasonable inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). However, an inference may be drawn in favor of the non-moving party only if the inference is "rational" or "reasonable" under the governing substantive law. See Matsushita, 475 U.S. at 588, 106 S.Ct. 1348.


A. Applicable Law

1. Patent Infringement

A determination of patent infringement involves a two-step inquiry: (1) a determination of the meaning and scope of the asserted claims, and (2) a comparison of the properly construed claims to the allegedly infringing devices. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir. 1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). If the accused device does not contain each and every limitation of the claim, or its equivalent, there can be no infringement. See Warner Jenkinson Co. v. Hilton Davis Chemical Co., 520 U.S. 17, 29, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Absence of a single limitation of a claim is sufficient to avoid infringement of that claim. See Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1535 (Fed.Cir. 1991) ("To establish infringement, every limitation set forth in a patent claim must be found in an accused product or process exactly or by a substantial equivalent").

While summary judgment of infringement may be appropriate in certain circumstances, see, e.g., Hay & Forage Indus. v. New Holland N. Am., 25 F. Supp.2d 1195, 1200 (D.Kan. 1998), the Federal Circuit has cautioned trial judges to approach a summary judgment motion of liability of infringement carefully:

Because, however, infringement is itself a fact issue, a district court must approach a motion for summary judgment of infringement or non-infringement with a care proportioned to the likelihood of its being inappropriate. Though speedy and inexpensive, ...

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