The opinion of the court was delivered by: Charles Breyer, District Judge
In this lawsuit plaintiff Business Objects, S.A. alleges that defendant Microstrategy, Inc. manufactures software which infringes Claims 1, 2 and 4 of United States Patent No. 5,555,403 ("the `403") owned by plaintiff. The Court issued its claim construction order on May 1, 2003. Now pending before the Court is defendant's motion for summary judgment of non-infringement of all three Claims. After carefully considering the papers and evidence filed by the parties, and having had the benefit of oral argument, the Court GRANTS defendant's motion.
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 Page 2 evidence for a reasonable fact finder to find for the non-moving party. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248-49 (1986). A fact is "material" if the fact may affect the outcome of the case. See id. at 248. "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 non-moving 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. Cattrett, 477 U.S. 317, 323-24 (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. 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 district court's task to "scour the record in search of a genuine issue of triable fact"). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. See Celotex, 477 U.S. at 323.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON ITS
DEFENSE OF NON-INFRINGEMENT
A patentee may show infringement either by showing that an accused product literally infringes a claim in the patent or that the product infringes under the doctrine of equivalents. See Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570
, 1579 (Fed. Cir.) (noting that an "accused product that does not literally infringe a claim may infringe under the doctrine of equivalents . . ."), cert. denied, 516 U.S. 987 (1995). Whether an accused product infringes Page 3 is ordinarily an issue of fact for the jury. See id. at 1575 (noting that both literal infringement and infringement under the doctrine of equivalents are factual issues).
To determine whether an accused device literally infringes a patent right, the Court must perform a two-step analysis: first, it must construe the claims to determine their meaning and scope; and second, it must compare the claims as construed to the accused device. See id. ("In the second step, the trier of fact determines whether the claims as thus construed read on the accused product."). The Court completed the first step in its Claim Construction Order, and now must compare the claims as interpreted to defendant's accused products. To establish literal infringement, "every limitation set forth in a claim must be found in an accused product, exactly." Id.; see also Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1211 (Fed. Cir. 1998) ("If even one limitation is missing or not met as claimed, there is no literal infringement.").
1. The "associating step" limitation
Defendant asserts that its products do not infringe Claims 1 and 2 of the `403 as a matter of law because its products do not satisfy the "associating step" limitation. The Court agrees. In its Claim Construction Order (the "Order") the Court expressly rejected plaintiffs argument that the SELECT and WHERE clauses recited in the associating step limitation are the clauses referred to in the "generating a query" step. The Court held that the "associating step," that is, the association of a familiar name with a SELECT clause and a WHERE clause, must occur prior to the "generating a query" step. Order at 9. It is undisputed that the accused devices do not associate a familiar name with a SELECT and WHERE clause prior to the generation of a query. The examples identified by plaintiff at oral argument show the association of the familiar name with a SELECT and WHERE clause occurring at the "`generating a query" step.
The Court rejects plaintiffs argument that the accused devices infringe because defendant's products associate "an element" of a SELECT and WHERE clause with a familiar name. The Court construes "an element" to mean a portion of the Page 4 SELECT/WHERE clause produced at the generating a query step; "an element" is not so broad as to encompass information that will be, but is not yet, associated with a SELECT or WHERE clause. Accordingly, no reasonable jury could find that the accused products literally infringe Claims 1 and 2 of the `403.
2. The "query engine means" limitation
Claims 2 and 4 include a "query engine means" limitation. The Court previously construed this limitation as a "means plus function" limitation which requires that it be interpreted to cover "the corresponding structure, material, or acts described in the specification." 35 U.S.C. § 112(6); Order at 11. The Court identified the corresponding structure as an algorithm described in the patent. Order at 12.
An accused device will infringe a means plus function limitation if it performs the identical function specified in the patent and employs the identical or equivalent structure. See WMS Gaming, Inc. v. International Game Tech., 184 F.3d 1339, 1350 (Fed. Cir. 1999). The function of the query engine means is to generate queries in the predetermined query language based on a given combination of two or more selected and associated familiar names. The Court construed "predetermined query language" to mean language that is determined prior to the generating step and that "supports the functions and operators contained in the associating step's SELECT clause." Order at 10. As is explained above, the ...