UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
January 6, 2011
BROCADE COMMUNICATIONS SYSTEMS, INC., A DELAWARE CORPORATION, AND FOUNDRY NETWORKS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, PLAINTIFFS AND COUNTERCLAIM DEFENDANTS,
A10 NETWORKS, INC., A CALIFORNIA CORPORATION; LEE CHEN, AN INDIVIDUAL;
RAJKUMAR JALAN, AN INDIVIDUAL; RON SZETO, AN INDIVIDUAL; DAVID CHEUNG, AN INDIVIDUAL; LIANG HANG, AN INDIVIDUAL; AND STEVE HWANG, AN INDIVIDUAL,
DEFENDANTS AND COUNTERCLAIMANTS.
The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER DENYING A10'S MOTIONS FOR SUMMARY JUDGMENT OF NONINFRINGEMENT; GRANTING BROCADE'S MOTION FOR SUMMARY JUDGMENT OF NONINFRINGEMENT
Presently before the Court are three motions for summary judgment: Defendant and Counterclaimant A10 Networks, Inc.'s and Defendants Lee Chen's and Rajkumar Jalan's 21 (collectively "A10") Motion for Summary Judgment of Noninfringement of U.S. Patent Nos. 22 7,647,427 and 7,716,370 ("A10's '427 Mot."); A10's Motion for Summary Judgment of 23 Noninfringement of U.S. Patent No. 7,558,195 ("A10's '195 Mot."); and Brocade Communication 24 Systems, Inc. and Foundry Networks, LLC's (collectively "Brocade") Motion for Summary 25 Judgment of Noninfringement of U.S. Patent No. 5,875,185 ("Brocade's Mot."). The Court held a 26 technology tutorial on December 12, 2011, and a hearing on the claim construction and summary judgment motions on December 19, 2011. For the following reasons, the Court DENIES A10's 2 two motions and GRANTS Brocade's motion. 3
The inventions at issue relate to improving various aspects of network communications.
1.'427 and '370 Patents
Brocade's '427 Patent and the '370 Patent are related and share a common specification.
Both patents are titled "Redundancy Support for Network Address Translation." The '427 Patent 8 application was filed on October 18, 2002, and the patent issued on January 12, 2010. The '370 9 2007, and the patent issued on May 11, 2010.
The '427 and '370 Patents both teach "providing redundancy support for network address translation (NAT) devices (such as routers or switches) in the event of a failover." '427 Patent 13 Patent is a divisional of the '427 Patent. The '370 Patent application was filed on January 24, 1:10-12. A NAT device translates Internet Protocol (IP) addresses used within one network to a 14 different IP address known within another network. Id. at 1:15-17. For example, a company may 15 use a NAT device to map its local inside network addresses to one or more global outside IP 16 addresses, and map the global IP addresses on incoming packets back into local IP addresses. Id. at 17
1:20-24. Such translation is used for security and to limit the number of IP addresses a company 18 uses to communicate outside of its local inside network. Id. at 1:24-34. 19
20 that occurred when a NAT device without redundancy failed due to, for instance, a power failure. 21
Id. at 1:41-45; '370 Patent at 1:48-50. In such situations, without redundancy, the NAT device 22 would be unable to perform address translation and to forward traffic. See '427 Patentat 1:47-48; 23
'370 Patent at 1:52-56. Even in prior art systems that included a backup NAT device, a NAT 24 device failure would result in network downtime and lost traffic between the time that the failure 25 occurred and the time that the backup NAT device was brought online. '427 Patentat 1:48-53; 26
'370 Patent at 1:56-62. The inventions claimed by the '427 and '370 Patents provide a method for 27 redundancy support, which allows a backup NAT device to continue the NAT function of a failed 28 The inventions claimed by the '427 and '370 Patents overcome a problem in the prior art master NAT device without incurring downtime after the failure. See id. at 2:54-62; '370 Patent at 2:59-3:3. 2.'195 Patent Brocade's 195 Patent, titled "System and Method for Providing Network Route Redundancy Across Layer 2 Devices," is unrelated to any of the other patents in this lawsuit. Its 6 application was filed April 2, 2007, and the patent issued on July 7, 2009.
The '195 Patent teaches "systems and methods for providing route redundancy across Layer 2 devices, as well as selected ports on L2 devices." '195 Patent at 1:38-40. The invention solves 9 network traffic problems encountered by networks that cover large geographic areas such as 10 large networks are moving towards using switches, rather than Layer 3 devices such as routers, to avoid latency problems associated with the use of Layer 3 devices. Id. at 1:64-66. "In a switched 13 network, all hosts or end nodes connected to the same physical Local Area Network ("LAN") 14 segment reside in the same broadcast domain, which has the potential of flooding the network with 15 traffic and making it essentially unusable as the network grows." Id. at 1:67-2:4. The '195 Patent 16 provides route redundancy to Layer 2 networks and improves on the shortcomings of the prior art. 17
The invention achieves route redundancy by having "a plurality of switches arranged in arbitrary 18 configuration or architecture, but must remain loop free through the use, for example, of spanning 19 tree or other protocol. Redundancy is provided through use of a virtual switch identified by an 20 address and having two or more layer switches which communicate with one another to elect a 21 master at any given time." Id. at 3:43-49. 22
Metropolitan Area Networks that span a single urban metropolitan environment. Id. at 1:52. These 3.A10's '185 Patent A10's '185 Patent, titled "Seamless Handoff for a Wireless LAN/Wired LAN Internetworking," claims methods of keeping a mobile device, known as a mobile terminal, 25 connected to a wireless local area network (WLAN) as it moves around and passes from one base 26 station's coverage area to another. The invention provides a method for seamlessly handing off a 27 mobile terminal from one base station to another without losing a network connection. See '185 28 Patent 1:5-10. The invention improves upon the prior art's "path elongation" method of using a 2
"virtual channel connection" ("VCC") to connect mobile terminals within a network. See id. at 3 1:60-65. The prior art's shortcoming was that as a mobile terminal with a VCC to another mobile 4 terminal moves from one base station's coverage to another, the distance the message must travel 5 increases, which leads to bandwidth waste and slows a network down. Id. at 2:31-32; 2:54-57. 6
The invention is a new handoff method that maintains a mobile terminal's VCC as the mobile 7 terminal moves from one base station's coverage to another, but reduces or eliminates path 8 elongation. Id. at 3:19-35. 9 10 a mobile terminal moves from a first base station to a second base station that is connected to the The invention's handoff method in the intraswitch mobility scenario completely eliminates 14 path elongation. Id. at 3:27-29. Under the prior art, when a mobile device moved from one base 15 station to another, data had to travel to the old base station first, back to the switch, and then to the 16 new base station. Id. at 2:31-54. Under the '185 Patent's method, the switch changes the data path 17 directly to the new base station and eliminates the path through the original base station. Id. at 18 "connection," "routing," and "complete" messages. Id. at 5:50-6:4. 20 21 completely eliminate, path elongation. Id. at 2:29-35. The '185 Patent teaches a handoff method 22 where the switch performs the path set-up, rather than the original base station. Id. at 2:29-30. The 23 path may be elongated from the switch connected to the original base station, to the new base 24 station, rather than from the original base station to the new base station. Id. at 2:30-33. 25 "routing," and "couple" messages. Id. at 7:8-11.
The invention teaches handoff methods for two scenarios: (1) "intraswitch mobility," where same switch, and (2) "interswitch mobility," where the mobile device moves from a base station associated with a first switch to a new base station associated with a second switch. Id. at 3:21-26. 13 3:27-29. This intraswitch handoff is achieved through four "control" messages: "location," 19 The invention's handoff method in the interswitch mobility scenario reduces, but does not Interswitch handoff is achieved by the issuance of four control messages: "location," "connection,"
The '185 Patent was filed July 20, 2009, and the patent issued November 23, 2010. A10's Taiwan affiliate, A10 Networks, Inc. Taiwan, purchased the '185 Patent from its original assignee, 3 the Industrial Technology Research Institute, on March 18, 2011. Declaration of Siddhartha M. 4 Patent No. 5,875,185, ECF No. 223 Ex. A. A10 acquired the '185 Patent on May 10, 2011. Id. 9 or any part" of a claim "shall be rendered forthwith if the pleadings, depositions, answers to 10 interrogatories, and admissions on file, together with the affidavits, if any, show that there is no Venkatesan in Support of Brocade's Motion for Summary Judgment of Noninfringement of U.S. 5
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment as to "all 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(b), (c). Material facts are those that may affect the outcome of the 13 case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material 14 fact is "genuine" if the evidence is such that "a reasonable jury could return a verdict for the 15 nonmoving party." See id. "[I]n ruling on a motion for summary judgment, the judge must view 16 the evidence presented through the prism of the substantive evidentiary burden." Id. at 254. The 17 question is "whether a jury could reasonably find either that the [moving party] proved his case by 18 the quality and quantity of evidence required by the governing law or that he did not." Id. "[A]ll 19 justifiable inferences must be drawn in [the non-movant's] favor." See United Steelworkers of Am. 20 U.S. at 255). for its motion and identifying those portions of the pleadings, depositions, interrogatory answers, 24 admissions and affidavits, if any, that it contends demonstrate the absence of a genuine issue of 25 material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party opposing a properly 26 supported motion for summary judgment "may not rest upon the mere allegations or denials of 27 v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (en banc) (citing Liberty Lobby, 477 21
The moving party bears the initial responsibility for informing the
district court of the basis
[that] party's pleading, but . . . must set forth specific facts
showing that there is a genuine issue for
trial." See Fed. R. Civ. P. 56(e); see also Liberty Lobby, 477 U.S. at
250. The opposing party need 2 not show the issue will be resolved
conclusively in its favor. See Liberty Lobby, 477 U.S. at 248-- 3
. All that is necessary is submission of sufficient evidence to
create a material factual dispute, 4 thereby requiring a jury or judge
to resolve the parties' differing versions at trial. See id. 5
analysis. "First, the claims of the patent must be construed to
determine their scope. Second, a 7 determination must be made as to
whether the properly construed claims read on the accused 8 device."
Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1304 (Fed.
As the Federal Circuit has noted, summary judgment of noninfringement
is a two-step
(internal citation omitted). "[S]ummary judgment of non-infringement
can only be granted if, after 10 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. at 1304.
"Whether a claim is infringed under the doctrine of equivalents may be decided on summary
judgment if no reasonable 13 jury could determine that the limitation
and the element at issue are equivalent." Zelinski v. 14
Brunswick Corp., 185 F.3d 1311, 1317 (Fed. Cir. 1999) (citing Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 39 n.8 (1997)).
A.A10's Motion for Summary Judgment of Noninfringement of '427 and '370 Patents A10 makes clear that its noninfringement arguments "are premised on" the Court adopting A10's proposed construction of the term "base address corresponding to . . . pool of . . . addresses." See A10's '427 Mot. 7 (emphasis added); see also id. at 10 ("if the Court adopts A10's proposed 22 construction . . . A10 respectfully requests that the Court enter an Order granting A10's motion for 23 summary judgment . . . .") (emphasis added); A10's '427 Reply ("[B]ased on that construction, 24
Noninfringement as a matter of law.") (emphasis added); id. at 12 ("A10 has proposed a proper 26 claim construction to the Court, and moves for summary judgment conditioned upon its proposed 27 construction being adopted."). At the hearing, A10 reiterated that its summary judgment motion
A10's opening summary-judgment brief argued that A10 is entitled to judgment of depended upon the Court's adoption of A10's claim construction. In a separate order construing 2 the disputed terms, the Court rejected A10's proposed construction. Accordingly, A10's motion is 3
Even if the Court had adopted A10's proposed construction, however, the Court would 5 have still denied A10's motion. In its claim construction brief and at the hearing, A10 urged the 6 Court to construe "base address corresponding to . . . pool of . . . addresses" to mean "starting 7 address of . . . pool of . . . addresses."
A10 argues that under its construction, A10 is entitled to summary judgment because Brocade cannot show evidence that A10's accused devices practice the elements of "sharing,"
'370 Patent, even under A10's construction of the disputed term. 14 15 well as Brocade's expert, Dr. Rubin, which Brocade contends raises an issue of material fact as to 16 infringement. Mr. Chiong, Vice President of Engineering Program Management at A10, stated that 17 the AX devices provide for NAT redundancy by allowing "key resources," such as "NAT pools," 18 to "be transferred from one AX device to another AX device." Declaration of John Chiong in 19
Chen's and Rajkumar Jalan's Motion for Summary Judgment of Noninfringement of U.S. Patent 21
"each NAT pool typically contains a range of addresses, with the lowest address in the range being 23 referred to as a 'starting address.'" Id. at ¶ 4; see also Declaration of Nitin Gambhir in Support of 24
Brief; (2) Opposition to Defendants' Motion for Summary Judgment of Non-Infringement of U.S. 26
Judgment of Non-Infringement of U.S. Patent No. 7,558,195, ECF No. 410 ("Gambhir Decl."), Ex. 28 "associating," or "owning" a "base address," as required by the relevant claims.
The Court finds that there is a material factual dispute as to whether A10's accused devices directly infringe Claims 1, 3-6, and 11 of the '427 Patent and Claims 1, 10, 18, 27, and 32 of the 13 Brocade points to evidence from the Declarations of John Chiong and Nitin Gambhir as Support of Defendant and Counterclaim-Plaintiff A10 Networks, Inc.'s, and Defendants Lee 20 Nos. 7,647,427 and 7,716,370, ECF No. 232 ("Chiong '427 Decl."), at ¶ 3. Mr. Chiong stated that 22
Brocade Communications Systems, Inc. and Foundry Networks, LLC's: (1) Claim Construction 25 Patent Nos. 7,647,427 and 7,716,370; and (2) Opposition to Defendants' Motion for Summary 27 K (lodged with the Court), at 183 2
Construction Brief; (2) Opposition to Defendants' Motion for Summary Judgment of Non-7 Motion for Summary Judgment of Non-Infringement of U.S. Patent No. 7,558,195 (lodged with the 9 . As Dr. Rubin explained
. Declaration of Izhak Rubin in
Support of Brocade Communications Systems, Inc.'s and Foundry Networks, LLC's (1) Claim Infringement of U.S. Patent Nos. 7,647,427 and 7,716,370; and (3) Opposition to Defendants' 8 Court) ("Rubin Decl."), at ¶ 73. Indeed, the source code of the accused devices appear to use the 10 . Compare '427 at 4:46-56 with Gambhir Decl. Ex. K at 163 13
Brocade has therefore submitted evidence that A10's accused master device shares not only 15 its entire NAT pool with a backup device, but also that NAT pool's "starting address." This 16 evidence, viewed in the light most favorable to Brocade, is sufficient for a reasonable jury to 17 conclude that the accused devices practice the only claim limitations that A10 argues are missing 18 from A10's accused devices. In other words, this evidence allows a reasonable jury to conclude 19 that the accused devices practice all of the limitations of the claims that A10 argues apply only to 20
"starting addresses," i.e. Claims 1, 10, 18, 27, and 32 of the '370 Patent, and Claims 1, 3-6, and 11 21 of the '427 Patent. Thus, Brocade has submitted evidence from which a reasonable jury could 22 conclude that A10's accused AX SeriesTM devices "contain, either literally or under the doctrine 23 of equivalents, every limitation of the properly construed claim." Seal Flex, Inc. v. Athletic Track 24 and Court Const., 172 F.3d 836, 842 (Fed. Cir. 1999). 25 26 unavailing. A10 argues that the claims "plainly require sharing a 'base' ('starting') address, not the 27 pool of addresses itself." A10 '427 Reply 4. However, A10 acknowledges that the NAT pool 28
A10's argument that this evidence would be insufficient to raise a material factual dispute is "contains . . . a starting address." Chiong '427 Decl. ¶ 4. A10 cannot avoid infringement just 2 because the master AX device happens to share with a backup device other addresses in a NAT 3 pool in addition to sharing the "starting address." Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 4 F.3d 795, 811 (Fed. Cir. 1999) ("[I]nfringement is not avoided by the presence of elements or steps 5 in addition to those specifically recited by the claims."); A.B. Dick Co. v. Burroughs Corp., 713 6 F.2d 700, 703 (Fed. Cir. 1983) ("[O]ne cannot avoid infringement merely by adding elements if 7 each element recited in the claims is found in the accused device."). Whereas at claim construction 8
"starting address of . . . pool of . . . addresses," A10 now appears to be arguing that this term should 10 be construed to mean "only the starting address of . . . pool of . . . addresses." Given that the latter construction was not adopted by the Court, Brocade has raised a material factual dispute as to whether A10's product infringes the claims as properly construed. 13 14 that A10's products infringe upon the asserted claims of the '427 and '370 Patents, A10's motion 15 for summary judgment of noninfringement as to these patents is DENIED.*fn1 A10's motion for summary judgment of noninfringement of the '195 Patent is "premised on
A10's proposed construction" of "transmitting . . . redundancy control packets for flooding 19 throughout the Layer 2 network" to mean "forwarding packets without routing addresses." See 20 A10's '195 Mot. 4; see also id. at 7 ("if the Court adopts A10's proposed construction . . . , A10 21 respectfully requests that the Court enter an Order granting A10's motion for summary judgment of 22 noninfringement of U.S. Patent 7,558,195) (emphasis added). Indeed, the crux of A10's argument 23 is that the accused devices achieve redundancy by sending heartbeat messages with routing 24 addresses, and, therefore, the accused devices cannot infringe Claim 1 of the '195 Patent. Id. at 5. 25
In a separate order construing the disputed term, the Court rejected A10's proposed construction.
A10 urged the Court to construe "base address corresponding to . . . pool of . . . addresses" to mean Thus, because Brocade has raised several facts that would allow a reasonable jury to find B.A10's Motion for Summary Judgment of Noninfringement of '195 Patent
The Court construed the disputed term to mean "transmitting . . .
redundancy control packets that 2 are in some way configured to be
flooded throughout the Layer 2 network." This construction 3
recognizes that packets can be configured to be flooded throughout the
Layer 2 network in ways 4 other than by omitting a routing address.
Accordingly, A10's motion for summary judgment of 5 noninfringement as
to the '195 Patent is DENIED.*fn2
products infringe A10's '185 Patent. ECF No. 92. Specifically, A10
accuses the following 10 categories of products (collectively, the
"accused products"): (1) Brocade's Mobility Products, 11 including its
Mobility Controllers and Access Points, Declaration of Professor
in Support of Brocade Communications Systems, Inc. and Foundry Networks, LLC's Motion for 224, at ¶ 58; (2) Brocade's IP network devices, including the FastIron WS, SX, and FCX series, Acampora Decl. ¶ 62; and (3) Brocade's professional services and configuration software, 16 including its IP Networking Infrastructure Services, Acampora Decl. ¶ 66.; see also A10's Opp'n 17
Brocade moves for summary judgment of noninfringement of the '185 Patent on the
19 grounds that (1) A10 has not set forth evidence that Brocade's
accused products practice every 20 element of the asserted claims, as
required to show literal infringement, and (2) A10 has presented 21 no
evidence of equivalency under the doctrine of equivalents. Broadly
speaking, Brocade asserts 22 that the record is barren of facts to
support that Brocade's accused products practice either virtual 23
channel connections or a series of control messages, both of which are
essential elements of every 24 claim asserted under the '185 Patent.
argues that it has not had reasonable time to investigate its
claims under Federal Rule of Civil 27
C.Brocade's Motion for Summary Judgment of Noninfringement of the '185 Patent.
On May 16, 2011, A10 asserted a counterclaim against Brocade, alleging that Brocade's Summary Judgment of Noninfringement of U.S. Patent 5,875,185 ("Acampora Decl."), ECF No. 14 Rather than respond to the substance of Brocade's assertions of noninfringement, A10 only
Procedure 56(d). A10 argues that Brocade's delay in its document production in response to A10's 2
January 26, 2011 document requests, has prevented A10 from analyzing
Brocade's documents 3 describing the functionality of the accused
products. A10 requests that the Court postpone 4 consideration of the
instant motion to allow A10 a reasonable time to review Brocade's
document 5 request, which was not substantially completed until
October 19, 2011, eight days after Brocade 6 filed the instant motion.
summary judgment of noninfringement second.
motion for summary judgment], the court may: (1) defer considering the motion or deny it; (2) 13 allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other 14 appropriate order." The Court applies Ninth Circuit law to determine whether relief is proper 15 under Rule 56(d). Exigent Tech., Inc. v. Atrana Solutions, Inc., 442 F.3d 1301, 1310 (Fed. Cir. 16 2006).*fn3 A party seeking relief under Rule 56(d) must show: "(1) it has set forth in affidavit form 17 the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the 18 sought-after facts are essential to oppose summary judgment." Family Home and Fin. Ctr, Inc. v. 19
Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008). The party must also show that 20 it "diligently pursued its previous discovery opportunities, and . . . demonstrate that allowing 21 additional discovery would . . . preclude summary judgment." Bank of Am., NT & SA v. 22 A10 argues that Brocade's October 11, 2011 document production should contain "documents revealing technical specifications, features, architecture, coding, circuit design, 25
The Court addresses A10's Rule 56(d) request first, and the merits of Brocade's motion for
1.Federal Rule of Civil Procedure 56(d)
Under Federal Rule of Civil Procedure 56(d), "If a non-movant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition [to a
PENGWIN, 175 F.3d 1109, 1118 (9th Cir. 1999).
interoperability with other products, and representations made by Brocade to its customers 2 regarding its products -- all of which are relevant to A10's infringement analysis and none of which 3 are publicly available." A10's Opp'n 6. A10 argues that without these documents its ability to 4 depose and cross-examine Brocade's expert is hamstrung, and that A10 is impeded from providing 5 its own rebuttal expert opinions.
disputes warranting denial of Brocade's motion. A10 asserts that Brocade's documents contain 8 facts essential to the following three issues: (1) whether Brocade's accused products perform 9 functions other than the IEEE 802.11 communication protocol such as "[c]entralized and 10 distributed traffic forwarding," Declaration of Scott R. Mosko in Support of Defendant and Patent No. 5,875,185 and Motion Pursuant to Rule 56(d), ECF No. 308 ("Mosko '185 Decl."), Ex. 14 D, at 3; (2) whether Brocade's accused products create virtual connections; and (3) how Brocade's 15 accused IP Network Infrastructure Services function. A10's '185 Opp'n 6-8. However, after more 16 than two months of reviewing Brocade's October 11, 2011 document production, A10 did not and 17 could not state at the hearing whether these documents supported A10's alleged factual disputes. 18 19 information" that A10 could discover that would prevent summary judgment, as required by Rule 20 56(d). A10's attached declaration of its counsel merely listing the date of Brocade's document 21 production does not point to any specific relevant information that would preclude summary 22 judgment. The bare assertion that Brocade's accused products may perform functions other than 23 the IEEE 802.11 communication protocol is hardly the "specific identification of relevant 24 information" that would merit relief under Rule 56(d). Emp'rs Teamsters Local Nos. 175 and 505 25
A10 also fails to raise a material factual dispute regarding Brocade's accused professional 27 services and configuration software. Brocade claims that A10's infringement contentions did not 28 Rather than address the merits of Brocade's arguments, A10 attempts to raise three factual
Counterclaimant A10 Networks, Inc.'s and Defendants Lee Chen, Rajkumar Jalan, Ron Szeto, and Steve Hwang's Response to Plaintiffs' Motion for Summary Judgment of Noninfringement of U.S. 13
Moreover, A10 has failed to submit affidavits "specifically identifying . . . relevant
Pension Trust Fund, 353 F.3d 1125, 1129-30 (9th Cir. 2004). describe any facts detailing how Brocade's accused professional services infringe A10's '185 2
Patent. See Reply 9 & n.9; Acampora Decl. ¶ 66. In its Reply, A10 did not respond to this Brocade claim, Acampora Decl. ¶ 66, let alone point to any specific facts that would preclude 4 summary judgment of noninfringement. Instead, A10 merely stated that it "has requested 5 discovery on these services, but is not yet aware that its requests have been met." A10's Opp'n 8. 6
A10 has a stronger argument that upon further discovery it may be able
to raise a genuine
material factual dispute as to whether Brocade's Mobility
Controllers and Access Points use virtual 9 channel connections. A10
cites one passage in a Brocade reference guide that suggests that
these 10 devices may practice VCCs: "The controller uses access points
to bridge data to and from wireless
Opp'n 7 (citing Mosko Decl. Ex. E). However, A10 does not set forth specific facts it expects to 14 discover that would raise a material factual dispute as to whether the accused products practice 15 control messages, as required in the other asserted claims. As described in greater detail below, 16
Court were to grant A10 discovery to pursue its investigation of Brocade's products' use of virtual 18 channel connections, this additional discovery would not preclude summary judgment of 19 noninfringement. Thus, A10 is not entitled to relief under Rule 56. 20 '185 Patent on May 10, 2011, and A10's assertion of the '185 Patent against Brocade on May 16, 23
Patent. Nor did A10 ever move to compel the production of these documents, even though the 25 document requests had been pending since January 26, 2011. Additionally, since August 2011, 26
A10 has had technical documents relating to each product accused of infringing the '185 Patent, as 27 well as Brocade's source code for the accused FastIron products. Declaration of Siddhartha M. 28
This falls short of the specific showing A10 must make to obtain relief under Rule 56(d). 7 devices . . . . All data packets to and from wireless devices are processed by the controller, where
appropriate policies are applied before they are decapsulated and sent to their destination." A10 13 A10 fails to raise a genuine material factual dispute as to these control messages. Thus, even if the 17 Moreover, the Court finds that A10 has not been diligent in pursuing discovery. As Brocade points out, A10's January 26, 2011 document requests pre-date A10's acquisition of the 22 2011. A10 has failed to amend its document requests to include requests specific to the '185 24 Venkatesan in Support of Brocade Communications Systems, Inc. and Foundry Networks, LLC's 2
Reply Brief in Further Support of Summary Judgment of Noninfringement of U.S. Patent No. 3 5,875,185 ("Venkatesan '185 Reply Decl."), ECF No. 336, at ¶ 8. Yet A10 has not amended its 4 infringement contentions relating to the '185 Patent since the infringement contentions were first 5 filed on June 24, 2011. 6 7 it expects to discover that would preclude summary judgment of noninfringement, and because 8 Thus, because A10 has not set forth in an affidavit or declaration with specificity what facts A10 has not shown that it was diligent in pursuing discovery, the Court DENIES A10's request for 9 relief under Rule 56(d).
2.The Merits of Brocade's Motion for Summary Judgment
To prevail on infringement at trial, A10 would have to show, by a preponderance of the evidence, that every limitation set forth in the asserted claims is found in Brocade's accused 13 products or processes "exactly or by a substantial equivalent." Laitram Corp. v. Rexnord Inc.,939 14 F.2d 1533, 1536 (Fed. Cir. 1991). Thus, on a motion for summary judgment of noninfringement, 15 the movant makes a prima facie case by "stating that the patentee had no evidence of infringement 16 and pointing to the specific ways in which accused systems did not meet the claim limitations." 17
Exigent,442 F.3d at 1309. The burden then shifts to the non-movant to establish a genuine dispute 18 of material fact that would allow a reasonable jury to find that the accused products practice every 19 limitation, or its equivalent, of each asserted claim. 20
Brocade argues that its accused products practice "connectionless" networking technology, 21 which is outside of the scope of the '185 Patent. As described above, the '185 Patent minimized 22 the problem of "path elongation" in prior art networks. "Path elongation" would occur when a 23 mobile terminal with an existing virtual channel connection to another mobile terminal moved 24 from the coverage area of one base station to another. For example, this would be a problem for 25 someone riding a train while talking on her cell phone with another cell phone user. Brocade 26 submits evidence that its products do not use a "virtual channel connection," an essential limitation 27 of each of the asserted claims, even if that term is construed by the Court to mean "logical path," as 28 A10 proposes.*fn4 In addition, Brocade has submitted evidence that its accused products do not use 2 the series of control messages, which are separate limitations of the asserted claims of the '185 3
Patent. Finally, Brocade points out that A10 has identified no evidence that Brocade's accused 4 products infringe under the doctrine of equivalents. As the Federal Circuit has stated, "evidence 5 and argument on the doctrine of equivalents cannot merely be subsumed in plaintiff's case of literal 6 infringement." Lear Siegler, Inc. v. Sealy Mattress Co., 873 F.2d 1422, 1425 (Fed. Cir. 1989). 7
A10 has failed to offer facts sufficient to allow a jury reasonably to find that Brocade's 9 accused products practice every limitation, or its equivalent, of each asserted claim of the '185 10 disputes, even though A10 was in possession of Brocade's documents since October 11, 2011. Nor did A10 elucidate any new theories or additional facts regarding infringement after reviewing 13 11 investigation results led A10 to sue Brocade for infringement. A10 pointed to Brocade's system 15 reference guide, Mosko Decl. Ex. E, as sufficient evidence of infringement. However, as explained 16 above, this guide at most provides some evidence that Brocade's mobility controllers may practice 17 VCCs. A10 did not articulate, and this Court was unable to discern, how this reference guide raises 18 a material factual dispute as to control messages, which are required by all claims. 19 20 noninfringement of the '185 Patent. The Court analyzes each of the claims in turn.
Thus, Brocade has made a prima facie case that it is entitled to summary judgment. Patent. Furthermore, at the December 19, 2011 hearing, A10 did not provide any new factual Brocade's documents for more than two months. Finally, at the hearing the Court asked what Rule Accordingly, the Court GRANTS Brocade's motion for summary judgment of Claim 1
Claim 1 teaches a method of intra-switch mobility:
A handoff method for a wireless local area network servicing at least two mobile terminals, when a first mobile terminal moves from a first coverage area covered by a first base station connected to a switch to a second coverage area covered by a second base station connected to the same switch, the method comprising the steps of:
a. the first mobile terminal issuing to the first base station a location message containing the location of the second base station;
b. the first mobile terminal issuing to the second base station a connection message containing virtual channel connections for the first mobile terminal;
c. the first base station issuing a routing message containing the location of the first and second base stations and the virtual channel connections for the first mobile terminal;
d. the switch altering the virtual channel connections for the first mobile terminal to reflect the move to the second coverage area; and
e. the switch issuing to the second base station a complete message containing the altered virtual channel connections for the first mobile terminal.
(emphasis added to construed claim terms).
Brocade has stated that there is "no evidence of infringement" and has "point[ed] to the specific ways" in which the accused products do not meet all of the limitations of this claim. In addition to pointing out that its products do not use "virtual channel connections," Acampora Decl. at 71-73 & ¶¶ 30-34, Brocade has submitted expert testimony that its products' "association" messages do not satisfy the various control message limitations contained in claims 1(a)-(c) & (e).
Acampora Decl. ¶ 55, 78. For example, Brocade's evidence shows that its "association" messages do not satisfy Claim 1(a) because they are not sent "to the first base station," nor do they "contain the location of the second base station." Acampora Decl. at 24-30 & ¶¶ 55-56. Thus, even if A10 has raised any doubt as to whether Brocade's accused products use "virtual channel connections," as construed by the Court, A10 has not set forth any facts to establish a material factual dispute as to whether any element of Brocade's accused products practice any of the control message limitations in Claims 1(a)-(c) & (e). Accordingly, the Court finds that Brocade has not infringed Claim 1 of the '185 Patent, and therefore GRANTS Brocade's motion as to this claim.
Claim 2 depends from Claim 1, which the Court has found Brocade does not infringe. "It is
axiomatic that dependent claims cannot be found infringed unless the claims from which they
depend have been found to have been infringed." Wahpeton Canvas Co. v.
Frontier Inc., 870 F.2d
1546, 1553 (Fed. Cir. 1989). Accordingly, the Court finds that Brocade
has not infringed Claim 2 2 of the '185 Patent, and therefore GRANTS
Brocade's motion as to this claim. 3
when a first mobile terminal moves from a first coverage area
covered by a first base station connected to a first switch to a
second coverage area covered by a second base station connected to 7 a
second switch, the first and second switches connected by a local area
network, the method comprising the steps of: 8 9
Claim 3 teaches a method of interswitch mobility:
A handoff method for a wireless local area network servicing at least two mobile terminals, a. the first mobile terminal issuing to the first base station a location message containing the location of the second base station;
b. the first mobile terminal issuing to the second base station a connection message containing virtual channel connections for the first mobile terminal;
c. the first base station issuing a routing message containing the location of the first and second base stations and the virtual channel connections for the first mobile terminal;
d. the first switch issuing, via the second switch, to the second base station a couple message containing the virtual channel connections for the first mobile terminal; and
e. the first switch updating the virtual channel connections for the first mobile terminal to reflect the move to the second coverage area.
(emphasis added to construed claim terms).
Because limitations 3(a)-(c) & (e) are identical to the limitations in Claim 1(a)-(c) & (e), the Court finds that Brocade's accused products do not infringe Claim 3 of the '185 Patent for the 21 same reasons they do not infringe Claim 1. Accordingly, Brocade's motion is GRANTED as to 22 this claim. products do not infringe Claims 4 and 5 of the '185 Patent for the same reasons they do not 26 infringe Claim 3. Wahpeton Canvas, 870 F.2d at 1553. Accordingly, the Court GRANTS 4.Claim 4 & 5 Claims 4 and 5 both depend from Claim 3. Thus, the Court finds that Brocade's accused
Brocade's motion as to these claims. 3 not infringe Claim 4 of the '185 Patent for the same reasons they do not infringe Claim 5. 4 Wahpeton Canvas, 870 F.2d at 1553. Accordingly, the Court GRANTS Brocade's motion as to 5 this claim. 6
Claim 6 depends from Claim 5. Thus, the Court finds that Brocade's accused products do 6.Claim 7
Claim 7 teaches the following:
A handoff method for a wireless local area network servicing at least two mobile terminals, and having at least two base stations and at least two switches; each mobile terminal being in wireless communication with a base station covering a coverage area, each base station being connected to a switch, and the switches being connected by a wired local area network (LAN), the method comprising the steps of:
a. designating a virtual channel connection (VCC) between a first and a second mobile terminal; and
b. altering the VCC between the first and second mobile terminals when the second mobile terminal moves from a first base station to a second base station, where:
(1) if the first and second base stations are connected to the same switch, altering the VCC in the first switch, deleting the VCC in the first base station, and adding the altered VCC in the second base station; and
(2) if the first and second base stations are connected to a first and a second switch, respectively, establishing an elongated path by:
1. creating a switched virtual connection (SVC) from the first base station to the second base station via the first and second switches; 2. deleting the VCC in the first base station, 3. after deleting the VCC in the first base station, determining if a loop exists in a switch in the SVC; 4. if a loop is determined to exist in a switch, eliminating the loop; 5. altering the VCC to delete the eliminated loop; and 6. sending to the second base station a couple message containing the VCC for the second mobile terminal. (emphasis added to construed claim terms).
2 products practice the limitation of "sending to the second base station a couple message containing 3 the VCC for the second mobile terminal." See Acampora Decl. 32-33 & ¶ 78. Brocade has also 4 pointed out how A10 has failed to produce any facts that the accused products "creat[e] a switched 5 virtual connection (SVC) from the first base station to the second base station via the first and 6 second switches." See Acampora Decl. ¶ 57(b); Brocade's '185 Mot. 19 (citing Acampora Decl. ¶ 7 Claim 7. 9
Brocade has set forth how A10 has failed to produce any facts that Brocade's accused 57). Therefore, Brocade has made a prima facie case that it is entitled to summary judgment as to 8 A10 has failed to establish a material factual dispute as to the infringement of Claim 7. Even if A10 has raised some doubt as to whether Brocade's accused products use "virtual channel connections," A10 has not set forth any facts to establish a material factual dispute as to whether
Brocade's accused products send to "the second base station a couple message containing the VCC 13 for the second mobile terminal." 14 A10 asserts that Exhibits D and E to the Mosko Declaration raise a genuine issue of 15 material fact as to infringement. At most, as A10 indicated at the hearing, these documents raise a 16 possibility that Brocade's products use a communication protocol other than 802.11. However, 17
A10 did not point out, either in its briefing or at oral argument, specific facts in these documents 18 showing that Brocade's accused products are capable of practicing the "couple message" limitation 19 of Claim 7. Although the claim appears to require the couple message only in the interswitch 20 scenario, "the accused infringing product must be capable of accomplishing the entire method of 21 the claim." WebZero, LLC v. ClicVU, Inc., No. CV-08-0504-MRP PLAX, 2009 WL 8173102, at 22 *4-5 (C.D. Cal. May 1, 2009) aff'd, 392 F. App'x 863 (Fed. Cir. 2010) (citing Ferguson 23 Cir. 2003) (internal quotation marks omitted; emphasis added). See also Wolverine World Wide, 25 Inc. v. Nike, Inc., 38 F.3d 1192, 1199 (Fed. Cir. 1994) ("If an express claim limitation is absent 26 from the accused product, there can be no literal infringement as a matter of law."). Thus, A10 has 27 not submitted evidence that would allow a jury to reasonably find, by a preponderance of the 28 Beauregard/Logic Controls, Div. of Dover Res., Inc. v. Mega Sys., LLC, 350 F.3d 1327, 1346 (Fed. 24 evidence, that every limitation set forth in the asserted claim is found in Brocade's accused 2 products. Laitram, 939 F.2d at 1536. 3
Accordingly, the Court finds that Brocade has not infringed Claim 7 of
the '185 Patent, and
therefore GRANTS Brocade's motion as to this claim. 5
Claim 8 depends from Claim 7. Thus, the Court finds that Brocade's accused products do 7 not infringe Claim 8 of the '185 Patent for the same reasons it does not infringe Claim 7. 8
Wahpeton Canvas, 870 F.2d at 1553. Accordingly, the Court GRANTS Brocade's motion as to 9 these claims. 10
For the foregoing reasons, A10's motions for summary judgment are DENED and
Brocade's motion for summary judgment is GRANTED.
IT IS SO ORDERED.