throbber
Case 1:14-cv-01153-SCJ Document 141 Filed 11/10/16 Page 1 of 36
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`CIVIL ACTION FILE
`NO. 1:14-CV-1153-SCJ
`
`__________________________
`
`::::::::::
`
`MICROWAVE VISION, S.A., MVG
`INDUSTRIES, SAS, and MVG, INC.,
`
`Plaintiffs,
`
`v.
`
`ETS-LINDGREN, INC.,
`
`Defendant.
`--------------------------------------------------------
`
`ORDER
`
`Before the Court in this patent infringement action are defendant
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`ETS-Lindgren, Inc.'s (ETS) motion for summary judgment of non-infringement
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`(doc. 96),1 and Plaintiffs’ (also referred to as MVG) motion for summary
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`judgment that their patent is not invalid. Doc. 93.
`
`I.
`
`BACKGROUND
`
`As related twice before:
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`Plaintiff Microwave Vision, S.A. and its wholly owned subsidiaries MVG
`Industries, SAS, and MVG, Inc. (collectively, the “Plaintiffs”), and
`Defendant [ ] . . . ETS-Lindgren Inc. . . . are competitors in the field of
`over-the-air measurement systems, including multi-probe systems. See
`
`1 All citations are to the electronic docket and all page numbers are those imprinted
`by the Court’s docketing software.
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`AO 72A
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`Doc. No. [19], p. 2. Among other things, such systems can be used to
`measure various parameters relating to antennas used in wireless devices,
`including wireless cellular communication devices. See id. Plaintiff
`Microwave Vision owns the rights to U.S. Patent No. 7,443,170 (the “170
`Patent”), which issued on October 28, 2008, and is entitled “Device and
`Method for Determining at Least One Variable Associated With the
`Electromagnetic Radiation of an Object Being Tested.” See Doc. No. [1], ¶
`17; Doc. No. [1-1]. Plaintiffs believe that Defendants' . . . multi-probe array
`measurement system utilizes technology claimed by the 170 Patent.
`Accordingly, Plaintiffs have filed the present action accusing Defendants
`of patent infringement. See Doc. No. [1]. . . . Defendants [then] filed
`counterclaims seeking declarations that (1) [they] have not infringed the
`'170 Patent, and (2) the '170 Patent is invalid. See Doc. Nos. [17]-[19].
`
`Microwave Vision, S.A. v. ETS-Lindgren Inc., ___ F. Supp. 3d ___, No.
`
`1:14-CV-1153-SCJ, 2016 WL 5092462, at *1 (N.D. Ga. Sept. 20, 2016).
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`As during claim construction and a previous round of summary judgment
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`(ETS pressed its patent invalidity arguments there), Claim 12 of the 170 Patent
`
`and its structural components lie at the heart of the present motions:
`
`“means for pivoting one or more of the network of probes and the
`support about a point located in the plane formed by the network of
`probes or about a point located in the plane parallel to the plane
`formed by the network of probes to vary, between successive ones of
`the plurality of measurements, an angle formed between the given
`one of the network of probes and the main axis of the support by a
`fraction of the angular pitch of the network of probes so that a total
`number of measurements in the plurality of measurements is greater
`than a total number of probes in the network of probes” is construed
`as follows:
`
`Function:
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`2
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`“pivoting the network of probes, the support, or both about a
`point located in the plane formed by the network of probes, or
`in a parallel plane”
`
`* * *
`
`Structure (for Pivoting the Support):
`
`“an electric motor, an actuator that extends more or less
`horizontally in the plane of the arc and is hinged to one end of
`the base, and a convex bottom surface on the base of a mast,
`which rests, by means of one or more rollers, on a
`complementary concave surface.”
`
`Id. at *2.
`
`After previously urging (unsuccessfully) that Claim 12 suffers fatal
`
`indefiniteness, ETS now moves for summary judgment again, this time
`
`contending that its accused device—specifically, its means for pivoting the
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`support—is not structurally equivalent to MVG’s. Doc. 101 at 13. MVG, of
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`course, opposes, contending that fact issues mandate a jury’s involvement. It
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`also insists that ETS’ invalidity affirmative defenses—that the 170 Patent is
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`anticipated and obvious in light of prior art, and that Claim 12 is inoperable—fail
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`as a matter of law. See doc. 100.
`
`II.
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`STANDARD OF REVIEW
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`Case 1:14-cv-01153-SCJ Document 141 Filed 11/10/16 Page 4 of 36
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`Summary judgment is appropriate when the moving party establishes that,
`based upon the evidence presented, “there is no genuine dispute as to any
`material fact and the movant is entitled to judgment as a matter of law.”
`Fed. R. Civ. P. 56(a). “[T]he requirement that a dispute be ‘genuine’ means
`simply that there must be more than some metaphysical doubt as to the
`material facts.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 261, 106 S.
`Ct. 2505, 91 L.Ed.2d 202 (1986) (citations and internal quotation marks
`omitted). The court views the record and draws all factual inferences in the
`light most favorable to the non-movant[, in this case, MVG]. Carlson v.
`FedEx Ground Package Sys., Inc., 787 F.3d 1313, 1317 (11th Cir. 2015). “If
`reasonable minds could differ on the inferences arising from undisputed
`facts, then a court should deny summary judgment.” Id. at 1318 (quoting
`Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997)).
`
`Dean–Mitchell v. Reese, ___ F.3d ___, 2016 WL 4756942, at *2 (11th Cir. Sept. 13,
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`2016).
`
`III. ANALYSIS
`
`A.
`
`Non-Dispositive Motions
`
`Before turning to the substance of summary judgment, the Court must first
`
`address several preliminary matters: ETS’ request to file a supplemental brief in
`
`support of its motion (doc. 133); ETS’ motion to exclude John Estrada’s (CEO of
`
`MVG) declaration (doc. 120); MVG’s motion to strike ETS’ expert’s declaration
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`(doc. 113); and nine motions to seal (docs. 94, 97, 108, 111, 112, 116, 119, 128, 136).
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`1.
`
`Supplemental Brief Motion
`
`On June 13, 2016 Halo Electronics, Inc. v. Pulse Electronics, Inc., ___ U.S.
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`___, 136 S. Ct. 1923 (2016), abrogated the existing rule for determining when 35
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`U.S.C. § 285 permits enhanced damages for patent infringement. ETS’ pre-Halo
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`summary judgment motion applied the old rule in resisting MVG’s damages
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`claims (see doc. 101 at 20), hence its current request to file a supplemental brief.
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`Doc. 133. Observing that Halo only partially altered the old rule, MVG opposes
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`another brief because ETS failed to address the surviving portion even before
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`Halo. Doc. 134 at 3. To allow briefing on such an issue would, in essence, permit
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`ETS an unjustified second bite at an apple three months after its first. Id.
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`Regardless, says MVG, any argument against enhanced damages is futile
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`and thus additional briefing unnecessary. Doc. 134 at 3. In particular, MVG
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`contends that ETS “does not have any admissible evidence” “on whether [it]
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`actually did have a reasonable noninfringement position in mind,” and thus
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`whether enhanced damages are appropriate, “when it made the decision to
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`continue selling the accused systems.” Id. at 4 (emphasis in original).
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`Pragmatism counsels denial of ETS’ motion. The Court has before it
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`extensive argument on enhanced damages, both under the old rule, and, thanks
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`to the briefing on the supplement motion (which strayed quite far into the merits
`
`of the parties’ respective damages positions), under Halo. It also has a
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`Case 1:14-cv-01153-SCJ Document 141 Filed 11/10/16 Page 6 of 36
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`cornucopia of evidence from both parties. Certainly briefing can help to distill
`
`issues and point courts in the direction of relevant facts, but additional pages in
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`this case, on this point of law, would only serve to muddy already frothy waters.2
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`ETS’ motion for leave to file a supplemental damages brief therefore is DENIED.
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`Doc. 133.
`
`2.
`
`Motion to Exclude John Estrada’s Declaration
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`In its summary judgment motion, ETS insists that MVG’s lost profits claim
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`fails because it “advances no evidence to prove either” that “purchasers in the
`
`marketplace generally were willing to buy the patented product for its
`
`advantages,” or that “the specific purchasers of the infringing product purchased
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`on that basis.” Doc. 101 at 24 (quoting Standard Havens Prods, Inc. v. Gencor
`
`Indus., Inc., 953 F.2d 1360, 1373 (Fed. Cir. 1991)). Indeed, says ETS, MVG’s own
`
`witness shows that MVG lost sales, not to ETS’ competing (and allegedly
`
`2 Allowing ETS a second brief on enhanced damages would spawn a response brief
`from MVG and, if past is prologue, a lengthy reply from ETS. That would in essence give
`the Court eight briefs on enhanced damages: the parties original arguments, the three
`briefs on supplemental briefing (which, again, essentially argue the merits of ETS’
`opposition to damages), and then three new briefs (and associated statements of fact,
`attachments, etc.). With fourteen motions pending in this case already (and thus
`something in the neighborhood of 20-25 briefs to review), the Court must carefully curate
`what’s really needed to resolve this dispute and what’s ultimately extraneous. Additional
`briefs on damages fall into the latter category.
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`6
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`infringing) multi-probe array system, but to single-probe systems. Id. “Against
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`th[at] backdrop,” ETS insists that MVG cannot “presume that it would have
`
`made a sale, had ETS not made it.” Id. at 25.
`
`To support its response, MVG presented an eight paragraph declaration
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`by John Estrada (doc. 106-6) stating that (1) single-probe systems are not
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`substitutes for multi-probe arrays with goniometers (Claim 12's means for
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`pivoting the support), and (2) the market for purposes of lost profit calculations
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`includes only customers with needs met by goniometer arrays and the
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`competitors who sell them. In particular, Estrada—who’s worked for MVG in
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`a variety of capacities for over fifteen years—declares that goniometer arrays are
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`essential for certain customer uses (testing larger devices, designing antennas,
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`and testing devices rapidly); single-probe systems “are not acceptable
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`substitutes” for those customers; that ETS’ infringing device stands as MVG’s
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`only competitor for sales to those customers; and that any ETS sales thus
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`cannibalized MVG’s profits. Doc. 106-6.
`
`ETS asks the Court to exclude Estrada’s statements. Doc. 120 (motion to
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`exclude); doc. 107-1 (MVG’s response in opposition to which Estrada’s
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`declaration is attached). His declaration, says ETS,(1) provides new, unnoticed
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`and untimely, expert testimony, (2) lacks a proper foundation, and (3) contains
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`inadmissible, unexcepted hearsay. Doc. 120. MVG counters that Estrada is a
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`proper fact witness who “provides admissible testimony” that is consistent with
`
`his previous deposition, “in opposition to [ETS’] motion for summary judgment
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`(a) to correct inferences made by ETS from selected excerpts of [Estrada’s]
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`deposition testimony, and (b) to provide proper factual testimony under Fed. R.
`
`Evid. 602 and 701 on subjects on which ETS chose not to depose him.” Doc. 129
`
`at 3.
`
`i.
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`Expert testimony
`
`Witnesses fall into two camps: lay people and experts. Lay witnesses may
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`testify “in the form of an opinion” only if the opinion “is: (a) rationally based on
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`the witness’s perception; (b) helpful to clearly understanding the witness’s
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`testimony or to determining a fact in issue; and (c) not based on scientific,
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`technical, or other specialized knowledge within the scope of Rule 702.” Fed. R.
`
`Evid. 701. Experts, by contrast, have specialized “knowledge, skill, experience,
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`training, or education” that is helpful to understanding evidence or determining
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`facts. Fed. R. Evid. 702. Their testimony must be based on “sufficient facts or
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`data,” and the “product of reliable principles and methods.” Id. Experts and lay
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`people, however, are not mutually exclusive—one person can present both types
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`of testimony. See Fed. R. Evid. 701 advisory committee’s note (“The [2000]
`
`amendment does not distinguish between expert and lay witnesses, but rather
`
`between expert and lay testimony. Certainly it is possible for the same witness
`
`to provide both lay and expert testimony in a single case.”) (emphasis in
`
`original).
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`Expert testimony triggers special discovery disclosure obligations
`
`inapplicable to lay witnesses. See Fed. R. Civ. P. 26(a)(2). Failure to timely
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`disclose an expert can lead to exclusion of that person’s testimony. In this case,
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`the Court ordered that all expert reports (opening, responsive, and rebuttal) be
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`served by January 21, 2016. Doc. 80 at 1. Expert depositions (i.e., the end of
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`“expert discovery”) had to conclude by February 29, 2016. Id. at 2. MVG does
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`not dispute that it never declared Estrada an expert. Consequently, if his
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`testimony stems from “scientific, technical, or other specialized knowledge”
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`rather than his own perceptions gathered as a result of his position within MVG,
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`the Court must exclude his declaration.
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`Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d
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`1213 (11th Cir. 2003), is instructive. There, the court considered whether a ship
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`repairer’s employees could present lay testimony “as to the reasonableness of
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`[repair] charges and the time to complete repairs” of the defendant’s vessel. Id.
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`at 1215. Looking to Rules 701 and 702, the court held that the employees’
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`testimony “was of a type traditionally and properly considered lay witness
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`testimony, as it was not based on specialized knowledge subject to Rule 702” (the
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`employees participated in the repairs and estimate formation). Id. at 1223. In
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`that vein, “most courts have permitted the owner or officer of a business to
`
`testify to the value or projected profits of the business, without the necessity of
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`qualifying the witness as an accountant, appraiser, or similar expert.” Fed. R.
`
`Evid. 701 advisory committee’s note (citing Lightning Lube, Inc. v. Witco Corp.,
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`4 F.3d 1153, 1175 (3d Cir. 1993) (no abuse of discretion in permitting the
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`plaintiff's owner to give lay opinion testimony as to damages, as it was based on
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`his knowledge and participation in the day-to-day affairs of the business)).
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`By contrast, the court in Air Turbine Technology, Inc. v. Atlas Copco,
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`excluded testimony “related to the inner workings of a complicated piece of
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`industrial machinery manufactured by a company other than [the witness’s]
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`own” because it “was not based upon [the witness’] position in Plaintiff's
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`business, but rather upon his experience, training and specialized knowledge of”
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`industrial machines. 2004 WL 3778793, at *3 (S.D. Fla. Apr. 20, 2004), aff’d 410
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`F.3d 701, 714 (Fed. Cir. 2005) (“Mr. Bowser's testimony refers to both the
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`structural components of the accused device and to their respective functions .
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`. . . [T]he fact that [he] may have particularized knowledge and experience as a
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`co-inventor of the claimed invention does not necessarily mean he also has
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`particularized knowledge and experience in the structure and workings of the
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`accused device. Under these circumstances, we cannot say that the district court
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`abused its discretion in concluding that Mr. Bowser's testimony amounted to
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`improper expert testimony.”).
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`Estrada has been employed by MVG and its predecessor entities since at
`
`least 1998, first as a research engineer, then vice-president, and now CEO. Doc.
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`107-9 at 5-11. During that time, he’s done “a little bit of everything from project
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`management, installation of these systems . . . some research work on some of the
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`software[, etc.].” Id. at 11. As MVG’s 30(b)(6) deponent, Estrada testified about
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`MVG’s product line and how goniometers work, MVG’s financials, its sales
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`practices, and its competitors, among other subjects. See generally doc. 107-9.
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`His declaration supporting MVG’s opposition to ETS’ summary judgment
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`motion relates to MVG goniometer-included products (see doc. 106-6 at 1-2);
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`what customer uses those products satisfy (id.); who MVG competes with (id. at
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`2); and why the market for multi-probe arrays with goniometers includes only
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`ETS and MVG (id. at 3-5). In particular, Estrada states that single-probe systems
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`are not direct competitors to goniometer arrays despite both being sold “to
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`customers seeking antenna measurement systems,” because “they do not have
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`the advantages that motivate purchasers to [buy MVG’s goniometer products].”
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`Id. at 2. That some customers considering an MVG goniometer array proposal
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`and a single probe system from another company ultimately choose the single
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`probe system simply shows, says Estrada, that those customers never needed the
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`goniometer’s advantages. Id. at 3-4. For those companies that purchased ETS’
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`goniometer system, “if ETS had been unable to offer the goniometer, the only
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`acceptable substitute . . . would have been MVG’s” product. Id. at 4.
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`To the extent that Estrada offers opinions about MVG’s products, sales,
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`and bid proposals, that testimony stems from his experiences working for MVG,
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`not from specialized knowledge. Like the business owner in Witco, whose
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`“knowledge and participation in the day-to-day affairs of the business” enabled
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`him to give lay testimony on damages his business suffered, Estrada as an MVG
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`employee had personal experiences sufficient to allow him to testify about MVG
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`products and financials. 4 F.3d at 1175; see also Cedar Shipping, 320 F.3d at 1215
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`(employee testimony on reasonableness of repair costs their company charged
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`“was not based on specialized knowledge subject to Rule 702").
`
`Testimony about an entire product market, including companies and
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`products other than MVG and its goniometer arrays, however, strays into expert
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`territory. See, e.g., Air Turbine Technology, 2004 WL 3778793, at *3 (testimony
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`“related to . . . machinery manufactured by a company other than [the witness’]
`
`own” excluded because it “was not based upon [the witness’] position in
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`Plaintiff's business, but rather upon his experience, training and specialized
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`knowledge of” industrial machines); Am. Gen. Life Ins. Co. v. Schoenthal Family,
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`LLC, 248 F.R.D. 298, 306 (N.D. Ga. 2008) (application of underwriting guidelines
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`to witness’ own company’s accounts proper lay testimony, but discussion of
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`acceptable practices “throughout the life insurance industry” bled over into Fed.
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`R. Evid. 702). Just as the chief underwriter for American General’s opinions
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`about the life insurance industry were “based on specialized, expert knowledge,”
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`so too are Estrada’s opinions about (1) the scope and contours of the market for
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`antenna measurement systems, and (2) competitor’s products.
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`Estrada has worked in that industry for many years and undoubtedly has
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`experiences that make his opinions on those topics insightful. But that does not
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`justify treating his testimony as lay opinion. See Fed. R. Evid. 701 advisory
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`committee's note ("The [2000] amendment does not distinguish between expert
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`and lay witnesses, but rather between expert and lay testimony.”) (emphasis in
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`original). Instead, it shows that Estrada may well qualify as an expert. Because
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`MVG never designated him as such, those portions of his declaration that
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`address the two categories listed above must be excluded.
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`ii.
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`Hearsay
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`Unaddressed by MVG’s response is ETS’ insistence that Estrada’s
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`statements about customer desires constitute “inadmissible hearsay because
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`[they] reflect[] out of court statements (customer thought processes) offered to
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`prove the truth of the matter asserted (what customers believe).” Doc. 120 at 4.
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`In particular, says ETS, the declaration “is not based on any customer documents
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`and is not backed by any specific evidence as to any one customer.” Doc. 118-2
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`at 54. It thus violates Fed. R. Evid. 801 and 802 and must be excluded. Id. at 54-
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`55.
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`Not so. Estrada’s declaration indeed includes multiple contentions about
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`MVG customers’ needs. See, e.g., doc. 106-6 at 2 (“[A] customer who wants the
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`advantages of the patented invention . . . would not consider a single probe
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`system to be an acceptable substitute.”). But none are “statements” as Fed. R.
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`Evid. 801 defines the term. Put differently, nothing Estrada relates is another
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`person’s “oral assertion, written assertion, or nonverbal conduct.” Fed. R. Evid.
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`801(a). His assertions are his opinions and those aren’t hearsay (though most
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`constitute undisclosed expert testimony, see supra).
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`iii.
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`Foundation Objection
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`Finally, ETS contends that those portions of Estrada’s declaration not
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`stricken on expert or hearsay grounds should perish under Fed. R. Evid. 6023
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`because “Estrada does not explain, nor is there any foundation, how he even
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`formed his opinions,” many of which allegedly contradict his deposition
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`testimony. Doc. 120 at 4.
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`To the contrary, ample evidence from Estrada’s deposition and the
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`declaration itself exists to support a finding that he had sufficient personal
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`knowledge to undergird his opinions. To support his statement that single-
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`probe systems cannot substitute for goniometer arrays, Estrada testified that
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`3 “A witness may testify to a matter only if evidence is introduced sufficient to
`support a finding that the witness has personal knowledge of the matter. Evidence to
`prove personal knowledge may consist of the witness's own testimony.” Fed. R. Evid. 602.
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`goniometers greatly speed measurements (up to an hour for single-probe
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`systems, 1-2 minutes for goniometers). Doc. 106-6 at 2. His opinions on
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`customer preferences, actions, and the antenna measurement market likewise
`
`find foundation in his testimony regarding the advantages of goniometer arrays
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`(id.), as well as his deposition testimony about telecom industry goniometer
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`needs and their uses. Doc. 107-9 at 71, 93-95. Regardless, any unfounded
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`statements also qualify as undisclosed expert testimony that, for the reasons
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`outlined above, must be excluded.
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`3.
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`Motion to Strike ETS’ Expert’s Declaration
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`In response to MVG’s summary judgment motion, ETS submitted a 242
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`page, 283 paragraph, declaration by its technical expert, Dr. Edward Joy. Docs.
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`109, 109-1, 109-2. Accompanying that declaration are 2092 pages of exhibits
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`(exhibit 44 alone has fifteen subparts). MVG moves to strike all 2334 pages
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`because, it says, they were “submitted in violation of the Court’s Order regarding
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`expert discovery . . . and [Local Patent Rule] 7.3.” Doc. 113 at 1. Opposing, ETS
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`says only paragraphs 1-8 of the Joy Declaration constitute new material—the
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`remainder duplicate portions of Joy’s three previous, timely filed, expert reports.
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`Doc. 122 at 1-3.
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`As noted, ETS only cites Joy’s Declaration once (doc. 110-1 at 18). The
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`paragraph cited (number 3, doc. 109 at 1-2) clarifies Joy’s understanding of the
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`phrase “structural analysis” in an effort to rebut MVG’s characterization of his
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`deposition testimony on the same term. It is thus not a “significant departure”
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`from either Joy’s deposition testimony or expert reports (he submitted three).
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`Paragraph three survives. See Fed. R. Civ. P. 26(a)(2)(B) (expert reports must
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`contain “a complete statement of all opinions the witness will express and the
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`basis and reasons for them”); Plantation Pipe Line Co. v. Cont'l Cas. Co., No.
`
`1:03-CV-2811-WBH, 2006 WL 6106248, at *9 (N.D. Ga. Sept. 25, 2006) (“[T]he
`
`Court finds that Hinchee's declaration is not in violation of Federal Rule of Civil
`
`Procedure 26(a)(2)(B), because the opinions set forth therein are not a significant
`
`departure from either his expert report or his deposition testimony.”) (footnote
`
`omitted).
`
`ETS never cites the remainder of the declaration. Regardless, it simply
`
`converts prior expert reports to declarative evidence and in doing so does not
`
`significantly depart from timely disclosed expert materials. The Court
`
`accordingly DENIES MVG’s motion to strike (doc. 113).
`
`17
`
`AO 72A
`(Rev.8/82)
`
`

`

`Case 1:14-cv-01153-SCJ Document 141 Filed 11/10/16 Page 18 of 36
`
`4.
`
`Motions to Seal
`
`As noted above, the parties have filed nine motions to seal various filings.4
`
`Erring on the side of caution, Plaintiffs provisionally sealed several documents
`
`related to their “not invalid” summary judgment motion because they include
`
`materials related to ETS’ expert. Doc. 94. ETS has since confirmed that the
`
`materials need not be sealed. Doc. 103. Plaintiffs’ motion (doc. 94) therefore is
`
`DENIED. The Clerk is DIRECTED to unseal docs. 100, 100-1, and 100-2.
`
`Because they contain “information that has been designated ‘confidential’
`
`or ‘highly confidential-litigation counsel only’ by both parties pursuant to the
`
`Court’s Discovery Confidentiality Order,” plaintiffs also ask the Court to seal (1)
`
`their response to ETS’ summary judgment motion; (2) additional statement of
`
`undisputed material fact; (3) response to ETS’ statement of undisputed material
`
`fact; (4) exhibits 1-6, 23-41, 45-56, and 52-59 to the declaration of Robert Hander
`
`(doc. 108 at 1-2); (5) their reply to ETS’ summary judgment motion; (6) response
`
`to ETS’ statement of additional facts; (7) exhibits 11B and 23-25 to Hander’s
`
`declaration supporting plaintiffs’ reply; (8) exhibit 62 to Hander’s declaration.
`
`Over no opposition (per Local Rule 7.1(B), no response equals no opposition) and
`
`4 Both parties adhered to Appendix H to the Local Rules, Standing Order No. 04-01,
`and this Court's Case Instructions in filing their respective seal motions.
`
`18
`
`AO 72A
`(Rev.8/82)
`
`

`

`Case 1:14-cv-01153-SCJ Document 141 Filed 11/10/16 Page 19 of 36
`
`because the motions are otherwise well-supported,5 the Court GRANTS
`
`plaintiffs’ motions. Docs. 108; 116; and 136. Docs. 107, 115, and 135 and their
`
`attachments shall remain sealed.
`
`ETS’ meanwhile seeks to seal a number of documents related to its motion
`
`for summary judgment (docs. 97, 119), its opposition to MVG’s motion (doc. 111),
`
`and six deposition transcripts (doc. 128). Plaintiffs oppose none of the motions
`
`and all are well-supported. All, therefore, are GRANTED. Docs. 97, 111, 119,
`
`128. Docs 96, 110, 118, 121, and 123-127 and their attachments shall remain
`
`sealed.
`
`Finally, ETS inadvertently filed doc. 109—Dr. Joy’s declaration discussed
`
`above—without provisionally sealing its contents. With MVG’s consent, ETS
`
`now asks the Court to seal the declaration and its many attachments because
`
`they contain “non-public information about ETS and MVG’s confidential
`
`testimony, documents, and expert reports, including details about the
`
`development, structure and inner workings of MVG’s systems.” Doc. 112 at 2.
`
`As the other seal motions are well-supported, so too here. The Court GRANTS
`
`5 All of the materials plaintiffs wish sealed indeed constitute trade secrets,
`confidential commercial information, and documents that fall within the Court’s
`previously entered protective order.
`
`19
`
`AO 72A
`(Rev.8/82)
`
`

`

`Case 1:14-cv-01153-SCJ Document 141 Filed 11/10/16 Page 20 of 36
`
`ETS’ request to seal Joy’s declaration. The Clerk is DIRECTED to seal doc. 109
`
`and all attachments.
`
`B.
`
`ETS’ Motion for Summary Judgment of Non-Infringement
`
`Seeking a declaration that its device does not infringe the 170 Patent, ETS
`
`contends that no reasonable jury could find structural equivalence between
`
`Claim 12's “means for pivoting” and ETS’ goniometer. Doc. 101 at 13. Put
`
`differently, “the differences [between the two devices] are far more than
`
`‘insubstantial.’” Id. at 16. The way ETS pivots the support, it says, meaningfully
`
`differs from MVG’s. Id. So too do the results. “ETS’s product is . . . robust and
`
`commercially viable,” while the 170 Patent’s “means for pivoting . . . the
`
`support” is a “primitive structure that even MVG never used.” Id. at 18. What’s
`
`more, Claim 12's structure, says ETS, is incomplete and thus inoperable. Id.
`
`Under those circumstances, no substantial equivalence exists and thus, too, no
`
`infringement of the 170 Patent by ETS.
`
`Under 35 U.S.C. § 112(f)—the provision governing “means plus function”
`
`limitations like Claim 12—“[a]n element in a claim for a combination may be
`
`expressed as a means or step for performing a specified function without the
`
`recital of structure, material, or acts in support thereof, and such a claim shall be
`
`20
`
`AO 72A
`(Rev.8/82)
`
`

`

`Case 1:14-cv-01153-SCJ Document 141 Filed 11/10/16 Page 21 of 36
`
`construed to cover the corresponding structure, material, or acts described in the
`
`specification and equivalents thereof.” (emphasis added). Such a claim may be
`
`literally infringed, or it may be infringed under the doctrine of equivalents. See
`
`Chiuminatta Concrete Concepts v. Cardinal Indus., 145 F.3d 1303, 1307-10 (Fed.
`
`Cir. 1998).
`
`“Literal infringement of a § 112[(f)] limitation requires that the relevant
`
`structure in the accused device perform the identical function recited in the claim
`
`and be identical or,” because of the statute’s text, “equivalent to the
`
`corresponding structure in the specification.” MobileMedia Ideas LLC v. Apple
`
`Inc., 780 F.3d 1159, 1170 (Fed. Cir. 2015). Because no party contests functional
`
`identity (nor could they, since the accused device and Patent 170 both pivot the
`
`support structure of their respective antenna measurement systems), or suggests
`
`that ETS’ device is literally structurally identical, the Court examines only the
`
`equivalent structure component under § 112(f).
`
`That brand of equivalence (which, again, still qualifies as “literal”
`
`infringement because of the statute’s text, see Chiuminatta, 145 F.3d at 1309) “is
`
`. . . an application of the doctrine of equivalents . . . in a restrictive role. As such,
`
`their tests for equivalence are closely related, involving similar analyses of
`
`21
`
`AO 72A
`(Rev.8/82)
`
`

`

`Case 1:14-cv-01153-SCJ Document 141 Filed 11/10/16 Page 22 of 36
`
`insubstantiality of differences.”6 Odetics, Inc. v. Storage Tech. Corp., 185 F.3d
`
`1259, 1267 (Fed. Cir. 1999) (quotes and cites omitted). Hence, “statutory [§ 112(f)]
`
`equivalence analysis requires a determination of whether the ‘way’ the [accused]
`
`structure performs the claimed function, and the ‘result’ of that performance, is
`
`substantially different from the ‘way’ the claimed function is performed by the
`
`‘corresponding structure, acts, or materials described in the specification,’ or its
`
`6 In this case, literal infringement and the doctrine of equivalents overlap entirely.
`But not always.
`
`[T]here are two differences between the equivalence determination made for literal
`infringement purposes under § 112(f) and a doctrine of equivalents determination
`for the same limitation: timing and function. 145 F.3d at 1310. Equivalence under
`section 112(f) is evaluated at the time of issuance. Al–Site Corp. v. VSI Int'l, Inc., 174
`F.3d 1308, 1320 (Fed.Cir.1999). Equivalence under the doctrine of equivalents, in
`contrast, is evaluated at the time of infringement. Id. Hence, an after-arising
`technology, a technology that did not exist at the time of patenting, can be found to
`be an equivalent under the doctrine of equivalents even though it cannot be an
`equivalent under the literal infringement analysis of § 112(f). Id.
`
`Ring & Pinion Serv. Inc. v. ARB Corp., 743 F.3d 831, 835 (Fed. Cir. 2014). The second is
`function – the doctrine allows for equivalent function, while literal infringement speaks
`only to identical functions. As discussed above, however, functional identity is not at
`issue here.
`
`What’s more, no such “after-arising”

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