Judge Andrews has denied a motion for summary judgment of non-infringement in litigation between Plaintiff Openwave Systems and Defendants Apple and RIM, although he did so “with some frustration.” Openwave Sys., Inc. v. Apple Inc., et al., C.A. No. 11-765-RGA, Memo. Or. at 3 (D. Del. Sept. 9, 2014). Judge Andrews’ frustration stemmed from the “unexpected” nature of the motion, given that the plaintiff had previously stated that if the Court adopts a construction “that matches the ALJ’s construction [from a related action] in all material respects, the parties will meet and confer to present a motion or stipulation to the Court terminating this case.” Id. at 1. Judge Andrews did, in fact, adopt such a matching construction, adding only a footnote clarifying the ALJ’s construction by saying it “does not read out embodiments including microcontrollers.” Id. The plaintiff then argued that this footnote was a material difference from the ALJ’s construction, and the defendants moved for summary judgment. Id.
Judge Andrews indicated that he disagreed that his footnote was a material difference in claim construction, but would not “further consider at this time the consequences of Plaintiff’s unfulfilled representations,” although he expected to “be able to revisit [this topic] when the question of sanctions or exceptional case arises.” Id. at 1, 3. Turning to the substance of the non-infringement motion, Judge Andrews explained that the plaintiff attempted to show a genuine issue of material fact because each accused product contains a computer module and also a microcontroller. Although the patents disclaimed devices containing computer modules, “a microcontroller can be considered a computer module, [so] saying that something is a computer module does not necessarily mean that it is anything different than a microcontroller.” Id. at 2. Thus, Judge Andrews concluded, “the patentee distinguished computer modules from microcontrollers, but the distinction between the two, which may be obvious to a POSITA, is not obvious to me. Therefore, while it is clear to me that the question of infringement is whether the accused products contain a computer module that is not solely a microcontroller, the answer is not clear based on the record before me.” Id. at 3.