The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT OF NONINFRINGEMENT [Docket No. 681]
Presently before the court is Defendant Hewlett-Packard Company's Motion for Partial Summary Judgment of Noninfringement ("Motion"). Having reviewed the parties' moving papers and heard oral argument, the court grants the Motion and adopts the following Order.
Defendant Hewlett-Packard Company ("HP") seeks partial summary judgment that some of its accused devices ("Group 2 devices") do not infringe the patents of Plaintiff Nomadix, Inc. ("Nomadix"). HP argues that it is entitled to summary judgment, because Nomadix's infringement contentions do not adequately set forth how the devices satisfy all of the required claim limitations. Nomadix asks the court to deny the Motion pursuant to Federal Rule of Civil Procedure 56(d) ("Rule 56(d)"), because HP failed to produce complete source code and a knowledgeable witness for the devices at issue. Nomadix also contends that genuine issues of material fact preclude summary judgment.
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The evidence must be viewed in the light most favorable to the nonmoving party, with all justifiable inferences drawn in its favor. Id. at 255.
The moving party "always bears the initial responsibility of informing the district court of the basis for its motion," and identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, "[o]n an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out 'that there is an absence of evidence to support the nonmoving party's case.'" Regents of Univ. of Cal. v. Dako N. Am., Inc., No. C 05-03955, 2009 WL 1083446, at *5 (N.D. Cal. Apr. 22, 2009) (quoting Celotex, 477 U.S. at 325).
Once the moving party meets this initial burden, "the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, set forth specific facts showing that there is a genuine issue for trial." Regents, 2009 WL 1083446, at *5 (internal quotation marks omitted). It is not enough for the nonmoving party to rest on the "mere allegations or denials of his pleadings." Anderson, 477 U.S. at 259; see also id. at 252 ("The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient . . . .").
Rule (56)(d) further provides that: "If a non-movant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." However, to obtain such relief, the non-movant must also show that it "diligently pursued its previous discovery opportunities." Brocade Commc'ns Sys., Inc. v. A10 Networks, Inc., No. 10-CV-03428, 2012 WL 33836, at *7 (N.D. Cal. Jan. 6, 2012) (quoting Bank of Am., NT & SA v. PENGWIN, 175 F.3d 1109, 1118 (9th Cir. 1999)).
For the patents at issue, Nomadix "bears the burden of proving infringement by a preponderance of the evidence." Warner-Lambert Co. v. Teva Pharm. USA, Inc., 418 F.3d 1326, 1342 (Fed. Cir. 2005). "Direct infringement requires a party to perform or use each and every step or element of a claimed method or product." BMC Res., Inc. v. Paymentech, L.P., 498 F.3d 1373, 1378 (Fed. Cir. 2007). "An accused device cannot infringe, as a matter of law, if even a single limitation is not satisfied." Digital Biometrics v. Identix, Inc., 149 F.3d 1335, 1349 (Fed. Cir. 1998).
In its Motion, HP has pointed to an absence of evidence in support of the relevant claim limitations. As HP explains, Nomadix's infringement contentions are too conclusory to satisfy its burden as to these limitations. The contentions simply repeat the limitations language, and fail to identify "specifically where each limitation of each asserted claim is found within each Accused Instrumentality." N.D. Cal. Patent Local R. 3-1(c).*fn1 For instance, one of the claim limitations requires that HP's devices "intercept, at the gateway device, the browser redirect message and modify it with the stored original destination address." (Wickey Decl. in Supp. of Mot., Ex. 1 at 15-16.) In its contentions, Nomadix repeats this language verbatim, adding only: "For example, the gateway device of the tested instrumentality intercepted the browser redirect message described above and modified it with the stored original destination address. The IP ...