In Riverbed Technology, Inc. v. Silver Peak Systems, Inc., C.A. No. 11-484-RGA-CJB (D. Del. Jan. 24, 2014), Judge Richard G. Andrews ruled on the parties’ cross-motions for summary judgment of infringement and non-infringement of one of defendant/counterclaim plaintiff’s patents (“the ‘736 patent”) as well as defendant’s motion for summary judgment of infringement of another one of its patents (“the ‘921 patent”). The Court granted partial summary judgment for defendant regarding the ‘921 patent and denied the cross-motions regarding the ‘736 patent.
As to the ‘921 patent, plaintiff argued that defendant’s expert had not tied his infringement analysis to specific products. Id. at 4. The Court disagreed, noting that defendant “did identify the infringing products, but only implicitly based on the software used by each product.” Id. at 5. The Court accepted defendant’s argument that it should enter partial summary judgment that certain hardware used with plaintiff’s software infringes the ‘921 patent and “leave for trial which SKU numbers were sold or used with” the infringing software. Id.
The Court also rejected plaintiff’s other arguments that defendant had not proven infringement. First, the expert had only analyzed a single version of plaintiff’s source code against all of the claim limitations, and multiple versions existed. However, the expert “also reviewed subsequent versions of the code to confirm that the functionality had not changed in a way that would cause him to have a different view of infringement for those newer versions.” Id. at 8. The Court found the expert’s analysis sufficient to show that different versions of plaintiff’s software infringed the ‘921 patent. Id. at 8-9. Because the expert had sufficiently shown that each version of the source code operated in the same infringing manner, it was also acceptable for the expert to have analyzed different versions of the code in his analysis of certain claim limitations. Id. at 10. Additionally, while defendant had not offered evidence that plaintiff ever actually operated an accused device in a way that infringes, it was sufficient for defendant to use circumstantial evidence of direct infringement, through internal documents showing how the product was tested and customer instructions that would cause a user to infringe. Id. at 9-10. Finally, defendant’s alleged mischaracterization of plaintiff’s expert’s testimony did not create an issue of material fact because defendant’s other evidence was sufficient to support infringement. Id. at 10-11.
As to the ‘736 patent, a dispute of material fact existed based on the experts’ disagreement as to how plaintiff’s product operated, and the Court therefore denied the motions for summary judgment. Id. at 12-13.