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August 12, 2002


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


Defendant 3Com, Inc. ("3Com") has moved for summary judgment for literal non-infringement of the '311 patent, owned by plaintiff E-Pass Technologies, Inc. ("EPass"). The parties filed cross-motions for summary judgment on the issue of infringement under the doctrine of equivalents. Having considered the papers submitted, the record in this case, and the applicable law, the Court hereby DENIES plaintiffs motion and GRANTS defendant's motion.


A. Factual Background and Procedural History

This is a patent infringement case involving a single patent covering a system for simplifying the use of various cards, such as credit cards, check cards, and identity cards. U.S. Patent No. 5,276,311 (the "'311 patent"), entitled "Method and Device for Simplifying the Use of a Plurality of Credit Cards, or the Like," describes a method and device for storing information from various individual cards in a single electronic multi-function card (the "EMFC"), allowing the user the convenience of having to carry only the single multi-function card on her person. All data stored is protected by a security code and can only be recalled by the user with the previously identified personal code when any particular stored card is required for a transaction.

The '311 patent describes "[p]articular advantages . . . provided by the simple form of the electronic multi-function card which has the outer dimensions of usual credit or check cards. . . ." ('996 patent, col. 3, lns. 17-21). First, the EMFC serves the purpose of convenience by "simplifying the use of a plurality of credit cards, check cards, customer cards, or the like. . . ." (Id., Abstract.) "[T]he user only needs, and is required to carry about, a single card. . . ." (Id., col. 1, lns. 64-66.) Thus, the EMFC substitutes for the "plurality of special or single purpose cards" carried about; data shows that the average American citizen carries approximately 16 cards. (Id., col. 1, lns. 31-37.) Second, the EMFC can be easily converted "into a specific card. . . ." (Id., col. 2, lns. 14-21.) Technologically, it is easily possible to "accommodate even very extensive electronic storages in a card-like very flat housing. . . ." (Id., col. 2, lns. 22-25.) Third, the EMFC incorporates safety features that "guarantee that there will not exist any risk of abusive use or forgery in case of loss. . . ." (Id., col. 1, lns. 65-68.)

The accused devices, the Palm VII and Palm VIIx, "are used primarily for storing and organizing personal information," which may include information contained on items such as credit cards, customer cards, identity cards, documents, etc. (Def. Mot. at 2-3.) Palm's devices have a width of 3.25 inches, a height of 5.25 inches, and a thickness of 0.75 inches. Id. at 6-7. A standard credit card has "a length of 3.375 inches, a height of 2.2125 inches, and a thickness of 0.030 inches." See E-Pass Techs., 177 F. Supp.2d at 1042.

B. Legal Standard

The Federal Rules of Civil Procedure provide for summary judgment 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 party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(e).

Summary judgment is a procedural matter not unique to patent law, and must therefore be decided by applying the law of the relevant regional circuit. See Transmatic, Inc. v. Gulton Indus., Inc., 53 F.3d 1270, 1278 (Fed.Cir. 1995). Once "the party moving for summary judgment 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," the burden of production then shifts so that "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the nonmoving party. T.W. Elec. Service, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); see also Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991). The party who will have the burden of proof must persuade the Court that it will have sufficient admissible evidence to justify going to trial. The standard for judging a motion for summary judgment is the same standard used to judge a motion for a directed verdict: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

"[W]hether the properly construed claims read on the accused device — is a question of fact." Pitney Bowes, Inc. v. Hewlett-Packard Company, 182 F.3d 1298, 1304 (Fed.Cir. 1999) (citing Mannesmann Demag Corp. v. Engineered Metal Prods., Co., 793 F.2d 1279, 1282 (Fed.Cir. 1986)). "[S]ummary judgment of non-infringement can only be granted if, after viewing the alleged facts in the light most favorable to the non-movant, there is no genuine issue whether the accused device is encompassed by the claims." Id. (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505). Where "the parties do not dispute any relevant facts regarding the accused product but disagree over which of two possible meanings of [a claim] is the proper one, the question of ...

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