The opinion of the court was delivered by: Breyer, U.S. District Judge.
This is a lawsuit for infringement of United States Patent No.
4,593,353 (the '353) issued on June 3, 1986. The '353 describes an
apparatus for protecting against the unauthorized use of computer
software. Plaintiff accuses defendants' "keys," also known as "dongles,"
marketed under the brand name "Sentinel," of infringing the '353. Now
before the Court are the parties' cross-motions for summary judgment.
The '353 includes two claims. Claim 1 provides in its entirety:
1. A software protection apparatus using first and
second authorization codes and a pseudorandom number,
sald software protection apparatus for use with a
pseudorandom number generator device located in the
computer and coupled to said reading means, for
generating a pseudorandom number in response to said
reading means reading said first authorization code
from said external memory device, said first
authorization code being read prior to execution of
said computer software, said pseudorandom number
generator device including a sealed casing, thereby
preventing identification of the pseudorandom number
processing means located in the computer and coupled
to said reading means and said pseudorandom number
generator device, for comparing the pseudorandom
number generated by said pseudorandom number
generator device with the second authorization code
read from selected data locations in said external
memory device, said processing means generating an
enable signal in response to a positive comparison
of the pseudorandom number with the second
authorization code for enabling execution of the
computer software stored in said external memory
Claim 2 describes in its entirety: "The software protection apparatus
in claim 1 wherein said external memory device includes a floppy disc."
In connection with the Claims Construction hearing the parties
disputed, among other things, whether "computer" includes peripherals and
other devices connected electronically to and communicating with the
processing units. The Court concluded that "computer" as used in the
claims of the '353 does not include peripherals and construed "computer"
to mean "the CPU and main memory on the CPU's circuit board, which, taken
together, form a part of a dedicated microcomputer system capable of
executing instructions on data, and which exclude connected peripheral
devices." April 2000 Memorandum and Order (hereinafter "Order") at 4-7,
16. The Court likewise construed "located in the computer" —
another disputed phrase — to mean "located in the CPU or main
memory or on the CPU Circuit Board." Order at 10.
Defendants now move for summary judgment on the ground that the accused
devices do not literally infringe the limitation that the device comprise
a "pseudorandom number generator device located in the computer," and
that they also do not infringe under the doctrine of equivalents.
Plaintiff has filed a cross-motion for summary judgment seeking a
determination that the accused products infringe the '353 as a matter of
I. STANDARD OF REVIEW FOR SUMMARY JUDGMENT
Summary judgment is appropriate 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 judgment as a
matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there
is sufficient evidence for a reasonable fact finder to find for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if
the fact may affect the outcome of the case. See id. at 248, 106 S.Ct.
2505. "In considering a motion for summary judgment, the court may not
weigh the evidence or make credibility determinations, and is required to
draw all inferences in a light most favorable to the nonmoving party."
Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A principal purpose
of the summary judgment procedure is to identify and dispose of factually
unsupported claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The party moving for summary judgment bears the initial burden of
identifying those portions of the pleadings, discovery, and affidavits
which demonstrate the absence of a genuine issue of material fact. See
id. at 323, 106 S.Ct. 2548. Where the moving party will have the burden
of proof on an issue at trial, it must affirmatively demonstrate that no
reasonable trier of fact could find other than for the moving party. See
id. Once the moving party meets this initial burden, the non-moving party
must go beyond the pleadings and by its own evidence "set forth specific
facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56
(e). The non-moving party must "identify with reasonable particularity
the evidence that precludes summary judgment." Keenan v. Allan,
91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins.
Co., 55 F.3d 247, 251 (7th Cir. 1995), and noting that it is not a