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Tomtom Int'l, B.V. v. Broadcom Corp.

United States District Court, C.D. California

April 9, 2015

TomTom Int'l, BV.
Broadcom Corp.


PERCY ANDERSON, District Judge.


Before the Court is a Motion for Summary Judgment filed by defendant and counter-claimant Broadcom Corporation ("Defendant"). (Docket No. 61/85.)[1] Plaintiff and counter-defendant TomTom International, B.V. ("Plaintiff") has filed an Opposition, to which Defendant has filed a Reply. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds that this matter is appropriate for decision without oral argument. The hearing calendared for March 23, 2015 is vacated, and the matter taken off calendar.

I. Background

A. General Overview of GPS Technology

Plaintiff is a leading player in the portable navigation device ("PND") industry. PNDs combine digital maps with global positioning satellite ("GPS") data to provide users information about their precise geographic locations and directions to destinations. PNDs interact with the network of GPS satellites orbiting Earth by receiving signals that include both the location of the sending satellite and the time that the signal was sent. (See Expert Report of Dr. Duncan Cumming ("Cumming Rpt.") ¶¶ 13-15.) Using this information, a PND can determine its distance from the satellite sending the signal. (Id.) Because distance from a single satellite does not determine a precise location on Earth, a PND must receive signals from multiple satellites in order to triangulate its position. (Id.)

Locating available GPS satellites and processing the signals detailing their locations takes time. Because maintaining a constant satellite link would not be practical in light of limited power resources, PNDs must occasionally take the time to find GPS satellites in this manner. (Id. ¶ 15-16.) TomTom's solution to reduce the need to locate GPS satellites-and therefore reduce the "time to first fix"-is a feature called QuickFix. In essence, PNDs featuring QuickFix run in low-power mode (even when apparently turned off) to continue keeping time. Combining this information with predicted satellite locations at various times, PNDs featuring QuickFix have a head start when searching for GPS satellites. (Id. ¶ 21.) Devices featuring QuickFix technology do not run in low-power mode indefinitely-instead, they include alarms that cause them to "suicide" after a specified period of inactivity. (Id.)

A PND's GPS chip is the component that performs the calculations used to triangulate a location. Plaintiff obtained GPS chips from a company called Global Locate until 2007. Plaintiff had worked with Global Locate to develop a chip called the Barracuda. (Id. ¶ 23.) The Barracuda supported QuickFix by keeping track of GPS time while in low-power mode. (Id. ¶ 22.) Defendant acquired Global Locate in 2007 and, in either 2007 or 2008, approached Plaintiff regarding their proposed design of a chip to replace the Barracuda (now given a Broadcom part number, 4750). (Id. ¶ 23.) The new chip was designated BCM4760 (the "4760"). (Id.)

B. Development of the 4760 GPS Chip

The Barracuda/4750 GPS chip worked in conjunction with a "system on a chip" ("SoC") manufactured by Samsung. (Id. ¶ 22.) The 4760 was initially pitched as a complete "PND on a chip" that would perform the functions of both the Barracuda/4750 GPS chip and the Samsung SoC. (Id.) The 4760 would be accompanied by a power management unit chip (the "PMU").

The business relationship between Plaintiff and Defendant was not exclusive: Defendant developed the 4760 for sale to companies other than Plaintiff, and Plaintiff was still considering other chip suppliers for at least some of the period during which the 4760 was being developed. (See, e.g., Declaration of Andrew Dawson ("Dawson Decl."), Ex. 8 at 145:8-146:2.) Nonetheless, the parties discussed the 4760 in various meetings and correspondence. Plaintiff's accounts of the communications between it and Defendant emphasize alleged representations and warranties of the 4760's design and performance. (See, e.g., Opposition at 4-6.) Among other things, Plaintiff claims that Defendant represented that the GPS timekeeping function would be handled by the 4760, just as it was handled by the Barracuda/4750, and that the 4760 would perform as the Barracuda/4750 performed.[2] Defendant's accounts emphasize its alleged clarification that the low-power GPS timekeeping function required for QuickFix would be performed by the PMU rather than the 4760.[3]

Relying on the PMU to keep GPS time with the PND in low-power mode presented a challenge: Because the PMU tracked time in Julian format (year/month/day/hour/minute/second) and the 4760 tracked time in GPS format (seconds elapsed since midnight on January 6, 1980), timing information stored in one format in one chip would have to be converted to the other format to be used by the other chip. Defendant resolved the issue by writing software to perform this conversion. This file was named glgps_hal_syncin.c (hereafter the "conversion software"). The conversion software was included in an "official release" of GPS software are made available to Plaintiff via Defendant's customer-facing portal called DocSafe. (Declaration of Phonebandith Vilaysack ("Vilaysack Decl.") ¶ 3.) The conversion software was provided both as a source code file and as part of the compiled binary code. (Id. ¶ 6.) The conversion software was saved in file titled, which included various GPS drivers. (Id. ¶¶ 5, 7.) This official release was downloaded by Plaintiff's engineers on April 2, 2010. (Id. ¶ 6.) Plaintiff points out that Defendant delivered software "through a variety of means including email, ftp, and through Broadcom's DocSafe customer support portal." (Opposition at 10.) While Plaintiff thus takes the position that it may have received the conversion software by means other than DocSafe, it does not appear to dispute that it also received and downloaded the conversion software through DocSafe.

C. Software Licensing Agreement & Software Download Agreement

Defendant points to two agreements that purportedly limit its liability for defective software. First, Defendant and Plaintiff executed a Software Licensing Agreement ("SLA") on November 20, 2008. (Dawson Decl., Ex. 3 at 120.) The SLA conspicuously warns that there is "no warranty and no support, " "the software is offered as-is, ' and Broadcom grants and licensee receives no warrant[i]es of any kind, express or implied...." (Id. at 121, § 3.) However, the SLA applies only to software "which is described in a Software Description Form...." (Id. at 120 § 1.10.) The Software Description Form ("SDF"), in turn, defines the "software being licensed" to include, among other things, the "ARM Only Linux Release" and, within that category, "GPS Drivers (combination of Source and Object code)." (Id. at 125.)

Second, prior to downloading any official software release through DocSafe, Plaintiff was required to agree to various disclaimers. This software download agreement ("SDA") provided, among other things, that "the software and any documentation and any (if any) support services related to the software or documentation are provided as is' and with all faults and Broadcom makes no promises, representations or warranties, either express, implied, statutory, or otherwise...." (Dawson Decl., Ex. 25 at 440-41.) The SDA defines "software" to mean "the BROADCOM driver software made available for download or otherwise provided to Licensee by BROADCOM or its licensees." (Wakefield Decl., Ex. 16 at 164.)

D. Manufacture & Purchase of PNDs Incorporating 4760 GPS Chip

Plaintiff did not purchase either finished PNDs or components directly from Defendant. Rather, Defendant sold chips to a Chinese manufacturer which, in turn, assembled and sold finished PNDs ...

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