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Dataquill Limited v. High Tech Computer Corp

December 1, 2011

DATAQUILL LIMITED,
PLAINTIFF-COUNTERDEFENDANT,
v.
HIGH TECH COMPUTER CORP.,
DEFENDANT-COUNTERCLAIMANT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER

(1) GRANTING IN PART AND DENYING IN PART HTC'S MOTION FOR PARTIAL SUMMARY JUDGMENT OF NON- INFRINGEMENT [Doc. No. 133]

(2) DENYING HTC'S MOTION FOR SUMMARY JUDGMENT OF NO WILLFUL INFRINGEMENT [Doc. No. 130]

(3) GRANTING IN PART AND DENYING IN PART HTC'S MOTION TO EXCLUDE THE EXPERT OPINIONS OF JOSEPH GEMINI [Doc. No. 129]

Presently before the Court is Defendant High Tech Computer Corp. ("HTC")'s motion for partial summary judgment of non-infringement, motion for summary judgment of no willful infringement, and motion to exclude the expert opinions of Joseph Gemini. [Doc. Nos. 129, 130, 133.] For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART HTC's motion for partial summary judgment of non-infringement; DENIES HTC' motion for summary judgment of no willful infringement; and GRANTS IN PART and DENIES IN PART

HTC's motion to exclude the expert opinions of Joseph Gemini.

BACKGROUND

This is a patent infringement case concerning two patents. On May 2, 2000, the United States Patent and Trademark Office ("USPTO") issued U.S. Patent No. 6,504,304 ("the '304 Patent") to Plaintiff DataQuill Limited ("DataQuill"). U.S. Patent No. 6,504,304 (filed May 2, 2000). On November 21, 2006, the USPTO issued U.S. Patent No. 7,139,591 ("the '591 Patent") to DataQuill. U.S. Patent No. 7,139,591 (filed Nov. 21, 2006). The '591 Patent is a continuation of the '304 Patent. See id. The technology at issue for both patents generally relates to handheld mobile devices with remote access capability and optional features such as touch sensitive screens or integrated cameras.

On March 24, 2008, DataQuill filed the present action against HTC alleging infringement of the '304 patent and the '591 patent. [Doc. No. 1, Compl.] Specifically, DataQuill alleges that HTC devices with the Android Operating System and HTC devices with the Microsoft Windows Phone 6.5 and 7.0 Operating Systems infringe certain claims of the patents-in-suit. [Doc. No. 149-4, Verified Expert Report of Dr. Daniel Van der Weide ("Van der Weide Expert Report") at 5-6.]

Prior to the filing of the present action, the USPTO granted third-party requests for ex parte reexamination of both the '304 Patent and the '591 Patent. [Doc. No. 130-2, Declaration of William Hicks ("Hicks Decl.") Exs. 1-2.] On April 1, 2008, the USPTO issued two non-final office actions rejecting all of the claims of the '304 Patent and the '591 Patent in light of certain prior art. [Id. Exs. 3, 8.] On May 14, 2009, the Court stayed the action pending the reexamination proceedings. [Doc. No. 29.] On October 27, 2009, the USPTO issued a reexamination certificate for the '591 Patent, and on April 13, 2010, the USPTO issued a reexamination certificate for the '304 Patent. '591 Patent (reexamination certificate) (filed Oct. 27, 2009); '304 Patent (reexamination certificate) (filed Apr. 13, 2010). On April 1, 2010, the Court lifted the stay in light of the conclusion of the reexamination proceedings. [Doc. No. 43.]

The parties agree that as a result of the reexamination proceedings, five of the asserted claims of the '304 Patent--claims 83, 86, 101, 113, and 115--were original claims of the patent that survived the reexamination proceedings, and therefore have an effective date of May 2, 2000. [Doc. No. 130-1 at 2; Doc. No. 151 at 3.] The parties also agree that the remaining asserted claims of the '304 Patent were added during the reexamination proceedings and have an effective date of April 13, 2010 and all of the asserted claims of the '591 Patent were added during the reexamination proceedings and have an effective date of October 27, 2009. [Doc. No. 130-1 at 2-3; Doc. No. 151 at 3.] DataQuill alleges that HTC began selling infringing products in September 2008 with the introduction of its "G1" Android mobile phone. [Doc. No. 151 at 1; see also Doc. No. 135-2, Expert Report of Joseph Gemini ("Gemini Expert Report") at 6.]

DISCUSSION

I. Motion for Partial Summary Judgment of Non-Infringment

HTC moves for partial summary judgment of non-infringement on several grounds. HTC summarizes these grounds and its arguments in support as follows:

1. HTC requests that the Court enter summary judgment of no direct infringement with respect to claims 12, 13, 44, 45, 83, 98, 113, and 115 of the '304 patent and all claims dependent therefrom. To satisfy the limitations of these claims, DataQuill relies on third-party software, server functionality, and/or other provisions over which HTC exercises no control or direction, and for which DataQuill has proffered no evidence (and indeed has not even argued) that such limitations are met by any of HTC's accused products or any activity conducted by HTC. Thus, summary judgment of non-infringement is warranted as to these claims.

2. HTC requests that the Court enter summary judgment of no direct infringement with respect to all claims of the '304 patent for all of HTC's accused products except the Evo 4G, as DataQuill has failed to even identify the "controller" or otherwise state how HTC's accused products meet the "controller" limitation of the asserted claims of the '304 patent.

3. HTC also requests that the Court enter summary judgment of no indirect infringement with respect to all asserted claims of the patents-in-suit, because DataQuill has failed and is unable to come forward with any evidence that could meet the legal requirements for either contributory infringement or active inducement of infringement by HTC. [Doc. No. 133-1at 1 (emphasis in original).]

A. Legal Standard for a Motion for Summary Judgment

Summary judgment is proper where the pleadings and materials demonstrate "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material issue of fact is a question a trier of fact must answer to determine the rights of the parties under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

The moving party bears "the initial responsibility of informing the district court of the basis for its motion." Celotex, 477 U.S. at 323. To satisfy this burden, the movant must demonstrate that no genuine issue of material fact exists for trial. Id. at 322. Where the moving party does not have the ultimate burden of persuasion at trial, it may carry its initial burden of production in one of two ways: "The moving party may produce evidence negating an essential element of the nonmoving party's case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., v. Fritz Cos., 210

F.3d 1099, 1106 (9th Cir. 2000). To withstand a motion for summary judgment, the non-movant must then show that there are genuine factual issues which can only be resolved by the trier of fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000). The non-moving party may not rely on the pleadings alone, but must present specific facts creating a genuine issue of material fact through affidavits, depositions, or answers to interrogatories. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324.

The court must review the record as a whole and draw all reasonable inferences in favor of the non-moving party. Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). However, unsupported conjecture or conclusory statements are insufficient to defeat summary judgment. Id.; Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008). Moreover, the court is not required "'to scour the record in search of a genuine issue of triable fact,'" Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996) (citations omitted), but rather "may limit its review to the documents submitted for purposes of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001).

B. Direct Infringement

HTC argues that it is entitled to summary judgment of no direct infringement of various claims of the '304 Patent. [Doc. No. 133-1 at 8-12.] Under 35 U.S.C. § 271(a), "whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States . . . infringes the patent."

A patent infringement analysis proceeds in two steps. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995), aff'd 517 U.S. 370. In the first step, the court construes the asserted claims as a matter of law. See id. In the second step, the factfinder compares the claimed invention to the accused device. Id.; see also Verizon Servs. Corp. v. Cox Fibernet Va., Inc., 602 F.3d 1325, 1340 (Fed. Cir. 2010) ("A determination of infringement is a question of fact . . . ."). "'Summary judgment on the issue of infringement is proper when no reasonable jury could find that every limitation in a properly construed claim either is or is not found in the accused device either literally or under the doctrine of equivalents.'" U.S. Philips Corp. v. Iwasaki Elec. Co. Ltd., 505 F.3d 1371, 1374-75 (Fed. Cir. 2007) (quoting PC Connector Solutions LLC v. SmartDisk Corp., 406 F.3d 1359, 1364 (Fed. Cir. 2005)).

"To prove literal infringement, the patentee must show that the accused device contains every limitation in the asserted claims. If even one limitation is missing or not met as claimed, there is no literal infringement." Riles v. Shell Exploration & Prod. Co., 298 F.3d 1302, 1308 (Fed. Cir. 2002) (quoting Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1211 (Fed. Cir. 1998)). Specifically, "[t]o infringe an apparatus [or system] claim, the device must meet all of the structural limitations."*fn1 Cross Med. Prods. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1311-12 (Fed. Cir. 2005); see also, e.g., Centillion Data Sys., LLC v. Qwest Communs. Int'l, 631 F.3d 1279, 1283-84 (Fed. Cir. 2011) (using the same standard to analyze infringement of both system claims and apparatus claims). Direct infringement may be proven through circumstantial evidence. See Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1318 (Fed. Cir. 2009).

1. The "reading sensor" limitation of claims 12, 13, 44, 45, and 83 of the '304 Patent HTC argues that it is entitled to summary judgment of no direct infringement of claims 12, 13, 44, 45, and 83 of the '304 Patent. [Doc. No. 133-1 at 8-11.] HTC argues that all of these claims contain the limitation of a "reading sensor" and that DataQuill contends that the "reading sensor" limitation is met by the digital camera on HTC's devices combined with third-party software. [Id. at 8.] HTC further argues that because it does not sell or offer to sell this third-party software, it is not liable for direct infringement. [Id.]

Claims 12 and 44 of the '304 Patent are dependent claims that contain the limitation of "wherein said reading sensor is a motion detector or scanning device." '304 Patent (reexamination certificate) col. 1 l. 59-62, col. 3 l. 4-6. Claims 13 and 45 of the '304 Patent are also dependent claims that add the limitation of "wherein said scanning device is a camera." '304 Patent col. 19 l. 9-10, col. 25 l. 15-16. DataQuill's technical expert Dr. Van der Weide states in his expert report that all of the accused HTC handsets possess a digital camera that is capable of sensing and capturing an image. [Doc. No. 149-4, Van Der Weide Expert Report at 3-4, 10.] Dr. Van der Weide contends that these digital cameras satisfy the above claim limitations. [Id. Ex. D at 18, 20.] Therefore, DataQuill has created a genuine issue of fact as to whether the digital cameras on HTC's accused handsets satisfy the above limitations in claims 12, 13, 44, and 45. Indeed, HTC concedes in its reply brief that it is not entitled to summary judgment on DataQuill's "camera theory" of infringement. [See Doc. No. 163 at 1.]

In addition to concluding that infringement is satisfied by the presence of a digital camera, DataQuill's technical expert concludes in the alternative that the accused HTC handsets infringe the above claims when they are combined with third-party applications such as Google Goggles, Google Shopper or ShopSavvy. [See Doc. No. 149-4, Van Der Weide Expert Report Ex. D at 18, 20 (stating "[o]r for example, HTC devices with apps like Google Shopper/Goggles or ShopSavvy, can also scan bar codes" in the claim charts for claims 12, 13, 44, and 45).] HTC argues that even if the Court accepts DataQuill's "camera theory" of infringement, it is entitled to summary judgment of no infringement to the extent DataQuill bases its infringement theory on the presence of these third-party applications. [Doc. No. 163 at 1-2.]

Claims 12, 13, 44, and 45 of the '304 Patent are apparatus or system claims. As previously stated, to infringe an apparatus or system claim, the device must meet all of the structural limitations. See Cross Med., 424 F.3d at 1311-12. Further, "[t]hat a device is capable of being modified to operate in an infringing manner is not sufficient, by itself, to support a finding of infringement." Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1330 (Fed. Cir. 2001). Therefore, if DataQuill contends that the accused devices infringe only when they are installed with certain third-party applications, DataQuill must show that HTC makes, uses, offers to sell, or sells the accused devices with those third-party applications installed.

HTC has presented a declaration by its technical expert Mark Lanning stating that HTC does not provide the accused devices pre-loaded with Google Goggles, Google Shopper, or Shop Savvy. [Doc. No. 133-3, Declaration of Mark R. Lanning ("Lanning Decl.") ¶ 8.] HTC also notes that DataQuill's technical expert does not state in his report that these applications are pre-loaded on the accused devices and only states that they are available for download. [Doc. No. 163 at 2; see Doc. No. 149-4, Van Der Weide Expert Report Ex. D at 10-11 n.1.] In response, DataQuill has presented a HTC press release for the "G2" accused handset stating that the "G2" is "packed with Google applications such as . . . Google Goggles." [Doc. No. 145, Declaration of Greg Smith ("Smith Decl.") Ex. 13 at 733.] DataQuill has also presented a user guide for the "G2" containing instructions on how to use Google Goggles. [Id. Ex. 12 at 550, 552, 557-59.]

HTC admits that this evidence presented by DataQuill is sufficient to create a genuine issue of fact as to whether HTC makes and sells the "G2" handset pre-loaded with Google Goggles. [Doc. No. 163 at 1-2.] However, HTC argues that this evidence is insufficient to create a genuine issue of fact with respect to the other accused devices. [Id.] In response, DataQuill argues that this evidence is sufficient to rebut the assertion in Dr. Lanning's declaration that no HTC devices are pre-loaded with Google Goggles, Google Shopper, or Shop Savvy. However, the Court agrees with HTC. To rebut HTC's motion for summary judgment, DataQuill was required to point to facts in the record that demonstrate a genuine issue of fact. See Reese, 208 F.3d at 738. Even though infringement may be proven through circumstantial evidence, see Lucent, 580 F.3d at 1318, the evidence presented by DataQuill is insufficient to show that the other accused HTC handsets were pre-loaded with Google Goggles. It is not reasonable for a jury to assume that all of the approximately 30 accused devices are pre-loaded with Google Goggles based solely on evidence that it may have been pre-loaded onto the "G2." Therefore, because DataQuill has presented insufficient evidence to show that the other accused devices come pre-loaded with Google Goggles, DataQuill has only created a genuine issue of fact as to whether the "G2" is pre-loaded with Google Goggles and that the presence of this application infringes the above claims. Accordingly, to the extent DataQuill's theory of direct infringement of claims 12, 13, 44, and 45 requires that the accused devices are loaded with third-party applications, HTC is entitled to summary judgment of no direct infringement with respect to all the accused devices except the "G2."

Claim 83 of the '304 Patent is an independent claim that contains the limitation "a reading sensor . . . wherein a [sic] said reading sensor is for reading coded data . . . wherein said coded data comprises bar codes and/or binary dot codes and said sensor is a bar code and/or dot code reader." '304 Patent (reexamination certificate) col. 13 l. 26-61. DataQuill's theory of infringement for this claim limitation is similar to its theory of infringement for claims 12, 13, 44 and 45, except that for claim 83, DataQuill contends that infringement occurs only when the accused devices are loaded with third-party applications, such as Google Goggles, Google Shopper, and Shop Savvy. [Doc. No. 149 at 3; see Doc. No. 149-4, Van der Weide Expert Report Ex. D at 11-12.] Therefore, the analysis in the preceding paragraph also applies to claim 83. DataQuill has created a genuine issue of fact only as to whether the "G2" is pre-loaded with Google Goggles, but has not created a genuine issue of fact with respect to all the other accused devices. Accordingly, HTC is entitled to summary judgment of no direct infringement of claim 83 with respect to all the accused devices other than the "G2."

In sum, the Court GRANTS IN PART and DENIES IN PART HTC's motion for summary judgment of no direct infringement of claims 12, 13, 44, 45, and 83 of the '304 Patent. Specifically, the Court DENIES the motion with respect to direct infringement of claims 12, 13, 44, and 45 to the extent that infringement is alleged to occur solely due to the presence of a digital camera in the accused devices and not the presence of third-party applications. The Court DENIES the motion with respect to direct infringement of claims 12, 13, 44, and 45 by the "G2" handset to the extent that infringement is alleged to occur when the "G2" is loaded with third-party applications. The Court GRANTS the motion with respect to direct infringement of claims 12, 13, 44, and 45 by all the accused devices other than the "G2" handset to the extent that infringement is alleged to occur when the devices are loaded with third-party applications. The Court DENIES the motion with respect to direct infringement of claim 83 by the "G2" handset. The Court GRANTS the motion with with respect to direct infringement of claim 83 by all the accused devices other than the "G2" handset.

2. The "processing center" limitation of claims 98, 113, and 115 of '304 Patent HTC argues that it is entitled to summary judgment of no direct infringement of claims 98, 113, and 115 of the '304 Patent because DataQuill has not shown that HTC uses or controls the third-party servers that are required to satisfy the claim limitation of "programs in said data entry device are updateable remotely from a processing center." [Doc. No. 133-1 at 11.] In response, DataQuill argues that these claims only require that the device be capable of interacting with a processing center, not that the processing center is a component of the claimed system. [Doc. No. 149 at 6-10.] See Finjan, 626 F.3d at 1204 ("[T]o infringe a claim that recites capability and not actual operation, an accused device 'need only be capable of operating' in the described mode."). DataQuill argues that it is therefore not required to show that HTC uses or controls the third-party servers. [Id.] DataQuill also argues that it has presented evidence showing that HTC's handsets are capable of updating programs remotely from a processing center, specifically the "Android Market" and the "Windows Marketplace." [Id. at 10-13.] In its reply, HTC concedes that DataQuill has raised a genuine dispute of fact with respect to whether the "processing center" limitation of claims 98, 113, and 115 of the '304 Patent are met, and HTC withdraws this portion of its motion. [Doc. No. 163 at 5.] Accordingly, the Court DENIES HTC's motion for summary judgment of no direct infringement of claims 98, 113, and 115 of the '304 Patent.

3. The "controller" limitation of the '304 Patent

HTC argues that it is entitled to summary judgment of no direct infringement of the '304 patent for all of the accused products except for the "Evo 4G." [Doc. No. 133-1 at 11-13.]

Specifically, HTC argues that DataQuill has put forth no evidence showing that the accused products other than the "Evo 4G" satisfy the "controller" limitation of the '304 Patent. [Id.] In response, DataQuill argues that the testimony of its technical expert Dr. Van der Weide is sufficient to create a triable issue of fact as to whether the accused products satisfy the "controller" limitation. [Doc. No. 149 at 13-18.]

Every asserted claim of the '304 Patent has the limitation of a "controller." [See Doc. No. 149-4, Van der Weide Expert Report Ex. D.] For each of the asserted claims, Dr. Van der Weide has provided an explanation in his report of how the accused products satisfy the "controller" limitation. [See id.] For example, independent claim 80 of the '304 Patent has the limitation "a controller coupled to said reading sensor to receive and process said input." '304 Patent (reexamination certificate) col. 11 l. 38-39. Dr. Van der Weide states that the accused handsets satisfy this limitation because "HTC devices include a controller; for example, processing circuitry included in on-board chips, coupled to the touchscreen." [Doc. No. 149-4, Van der Weide Expert Report Ex. D at 7.] Further, in another part of his report, Dr. Van der Weide states:

Controller; all accused HTC devices have a controller in the form of processing circuitry in one or more chips or chipsets that function, for example, to process inputs from their touchscreen and access information for display (Block Diagram HTCDQ113869). It is noted that in most devices, the processing circuitry of their controller resides in a MSM or baseband processor chip; in some devices, such as the EVO 4G (code name Supersonic), their controller can also include processing circuitry in an additional chip (e.g. the Atmel AT42QT6022), for example. [Id. at 8.] In addition, exhibit B to the report contains a table where Dr. Van der Weide lists for each of the accused products its corresponding MSM chip. [See Doc. No. 149-4, Van der Weide Expert Report Ex. B.]

HTC argues that this evidence is insufficient to withstand a motion for summary judgment. [Doc. No. 163 at 3-5.] Specifically, HTC argues that although DataQuill's expert states that in some of the accused devices the controller consists of circuitry in the MSM and circuitry in an additional chip, he never states in his report or his deposition the specific names of the additional chips for any accused products other than the "Evo 4G." [Id.] "Although Rule 26(a)(2)(B) requires that experts disclose a 'complete statement of all opinions to be expressed and the basis and reasons therefor' in their expert report, an expert is not required to 'recite each minute fact or piece of scientific information that might be elicited on direct examination.'" Single Chip Sys. Corp. v. Intermec IP Corp., 495 F. Supp. 2d 1066, 1075 (S.D. Cal. 2007). The deposition testimony cited by HTC shows that DataQuill's expert was willing to provide the specific names of the additional chips, but that he needed certain block diagrams to be able to do so. [See Doc. No. 133-15, Declaration of Phillip Price ("Price Decl.") Ex. 9 at 238-308.] The transcript does not show that HTC ever gave Dr. Van der Weide the block diagrams and asked him to identify the names of the additional chips. [See id.] DataQuill has provided the Court with these block diagrams and a block diagram cited by HTC's technical expert. [See Doc. No. 149-5, Declaration of Dr. Daniel Van der Weide ("Van der Weide Decl.") Exs. 2, 4.] In addition, DataQuill has provided a declaration from Dr. Van der Weide providing the names of the accused products where the "controller" requires an additional chip and the names of these additional chips.*fn2 [Doc. No. 149-3, Van der Weide Decl. ¶ 12.] DataQuill has also presented evidence from HTC's technical expert Dr. Lanning listing the names of the chips in the accused devices. [Doc. No. 149-6, Van der Weide Decl. Ex. 3.] Therefore, DataQuill has presented sufficient evidence to create a triable issue of fact as to whether the accused products satisfy the "controller" limitation of the '304 Patent. Accordingly, the Court DENIES HTC's motion for summary judgment of no direct infringement of the '304 Patent by all of the accused products in addition to the "Evo 4G."

C. Indirect Infringement

HTC argues that it is entitled to summary judgment of no indirect infringement of the '304 Patent and the '591 Patent. [Doc. No. 133-1 at 13-17.] HTC first argues that to the extent DataQuill is unable to establish direct infringement of a claim by HTC, HTC is entitled to summary judgment of no indirect infringement. [Id. at 13-14; Doc. No. 163 at 5.] While HTC is correct that a finding of indirect infringement requires a threshold finding of direct infringement by some entity, see Lucent, 580 F.3d at 1320, 1322, HTC fails to note that it itself does not have to be found liable for the direct infringement in order for it to be liable for indirect infringement. For example, the threshold act of direct infringement can be performed by a consumer that uses the infringing device. See, e.g., Anton/Bauer, Inc. v. PAG, Ltd., 329 F.3d 1343, 1349 (Fed. Cir. 2003). HTC does not argue anywhere in its motion or reply that consumers that use the accused devices are incapable of directly infringing the asserted claims as a matter of law. [See Doc. No. 113-1; Doc. No. 163.] Indeed, given that infringement can be proven through circumstantial evidence and DataQuill has produced a substantial number of HTC marketing materials and user guides along with expert testimony, [see Doc. No. 145, Smith Decl. Exs. 12-16, 21, 23-25, 32; Doc. No. 149-4, Van der Weide Expert Report], HTC would have a difficult time making that argument. See Lucent, 580 F.3d at 1318 (stating that a reasonable jury could find that it was "more likely than not one person somewhere in the United States had ...


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