Magistrate Judge Christopher J. Burke recently recommended that the court deny defendant Ubisoft, Inc.’s (“Ubisoft”) motion for summary judgment as to non-infringement of claim 11 of U.S. Patent No. 6,430,997 (“the ‘997 patent”), but that the court grant Ubisoft’s motion for summary judgment as to no willful infringement of the same claim. Impulse Technology Ltd. v. Microsoft Corp. et al., C.A. No. 11-586-RGA-CJB (D. Del. Apr. 9, 2015). On March 27, 2015, Judge Burke issued a recommendation that the court grant defendants Microsoft Corporation, Electronic Arts, Inc. (“EA”), and Ubisoft’s motion for summary judgment of non-infringement “as to 14 of 15 asserted claims in the case.” Id. at 1 As Judge Burke explained, “[r]emaining to be resolved is Defendant Ubisoft’s argument that summary judgment should be granted to it on the ground that it does not infringe the remaining asserted claim in the case: claim 11 of the ‘997 patent.” Id. Judge Burke’s instant Report and Recommendation addressed that issue, as well as “Ubisoft’s assertion that summary judgment should be granted in its favor on the ground that any infringement of claim 11 of the ‘997 patent was not willful as a matter of law.” Id.
As to the motion for non-infringement, Judge Burke explained that “[i]n light of the intrinsic evidence, the Court recommends that ‘training sequence’ be construed to require only a series of movements or exercises, without regard to whether resistive or reactive training devices are used simultaneously, alternatively, or otherwise.” Id. at 9. Judge Burke further explained that “because Ubisoft’s argument in favor of summary judgment [of non-infringement] was solely premised on an understanding of the claim term that would require alternating between those devices (or at least the non-simultaneous use of such devices), the Court recommends that Ubisoft’s motion be denied.” Id. As to Ubisoft’s motion for summary judgment of no wilfull infringement, Judge Burke first concluded that the “non-infringement argument that Ubisoft presented is not sufficient, on its own, to preclude a determination of willful infringement.” Id. at 10. However, “[i]n light of the relative strength of [its] invalidity defense,” Judge Burke was persuaded that as to claim 11, “Plaintiff cannot demonstrate that Ubisoft acted despite an objectively high likelihood that its actions constituted infringement of a valid patent claim.” Id. at 11. Judge Burke therefore granted the motion as to no willful infringement.