throbber
NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`MIRROR WORLDS TECHNOLOGIES, LLC,
`Plaintiff-Appellant
`
`v.
`
`FACEBOOK, INC.,
`Defendant-Appellee
`______________________
`
`2018-2276
`______________________
`
`Appeal from the United States District Court for the
`Southern District of New York in No. 1:17-cv-03473-JGK,
`Judge John G. Koeltl.
`______________________
`
`Decided: January 23, 2020
`______________________
`
`MARC AARON FENSTER, Russ August & Kabat, Los An-
`geles, CA, argued for plaintiff-appellant. Also represented
`by BRIAN DAVID LEDAHL, JAMES S. TSUEI, BENJAMIN T.
`WANG; CHARLES R. MACEDO, Amster Rothstein &
`Ebenstein LLP, New York, NY.
`
` HEIDI LYN KEEFE, Cooley LLP, Palo Alto, CA, argued
`for defendant-appellee. Also represented by DENA CHEN,
`LOWELL D. MEAD, MARK R. WEINSTEIN; PHILLIP EDWARD
`MORTON, Washington, DC.
`
`

`

`2
`
`MIRROR WORLDS TECHNOLOGIES v. FACEBOOK, INC.
`
` ______________________
`
`Before PROST, Chief Judge, TARANTO and STOLL, Circuit
`Judges.
`
`TARANTO, Circuit Judge.
`Mirror Worlds Technologies, LLC owns U.S. Patent
`Nos. 6,006,227, 7,865,538, and 8,255,439, which describe
`and claim systems and methods for presenting and storing
`data in time-ordered streams on a computer system. Mir-
`ror Worlds brought the present action against Facebook,
`Inc., alleging that Facebook’s making, selling, using, and
`other actions involving various Facebook systems infringed
`the ’227, ’538, and ’439 patents. Facebook filed a motion
`for summary judgment of non-infringement before discov-
`ery ended, and the district court granted it. Mirror Worlds
`appeals.
`We agree with Mirror Worlds that the district court’s
`judgment must be reversed. The district court relied for its
`decision on an erroneous conclusion that there is no genu-
`ine dispute about certain facts. Facebook defends the sum-
`mary judgment on alternative grounds. We will not affirm
`on those alternative grounds. We reverse the court’s judg-
`ment and remand for further proceedings.
`I
`A
`The ’227 patent issued from an application filed in June
`1996. The ’538 and ’439 patents are descendants of the ’227
`patent through a series of continuation applications, with
`an intervening continuation-in-part application. The ’227
`patent is representative for the purposes of this appeal.
`The patent states that, as of its priority date, conven-
`tional computers used certain kinds of hierarchical directo-
`ries to store and organize data. ’227 patent, col. 1, lines
`21–30. Under the conventional system, a user created a
`
`

`

`MIRROR WORLDS TECHNOLOGIES v. FACEBOOK, INC.
`
`3
`
`new document by naming the document and choosing a
`storage location. Id. According to the patent, requiring
`such operations has disadvantages: specifically, the opera-
`tions involve needless overhead; file names are often mean-
`ingless to a user; and a user of such a system must
`remember not just the file name but where the document
`is stored. Id., col. 1, lines 40–59. The ’227 patent describes
`an alternative: storing documents in a chronologically or-
`dered “stream.” Id., col. 1, lines 4–6.
`A “stream” is “a time-ordered sequence of documents
`that functions as a diary of a person or an entity’s electronic
`life. Every document created and every document sen[t] to
`a person or entity is stored in a main stream.” Id., col. 4,
`lines 6–10. Past documents are contained in the tail of the
`stream, id., col. 4, lines 10–12, and new documents are
`added to the present time point in the stream, id., col. 4,
`lines 35–43. Besides containing documents from the past
`and present, a stream may contain “documents allotted to
`future times and events, such as[] reminders, calendar
`items, and to-do lists.” Id., col. 4, lines 18–21. “A document
`can contain any type of data,” including “pictures, corre-
`spondence, bills, movies, voice mail and software pro-
`grams.” Id., col. 4, lines 16–18.
`A user may create “substreams” by filtering the main
`stream. Id., col. 4, lines 48–61. Describing preferred em-
`bodiments, the patent characterizes a substream as dy-
`namic and persistent in the following sense: if a user filters
`for “all emails from Smith,” a substream containing all
`emails from Smith will collect any such emails as they are
`added to the main stream, and the substream will continue
`to exist “until destroyed by the user.” Id., col. 4, line 62,
`through col. 5, line 13. A substream is a subset of the main
`stream, in that each substream document is in the main
`stream, though a particular document may be in multiple
`substreams. Id., col. 5, lines 14–19.
`
`

`

`4
`
`MIRROR WORLDS TECHNOLOGIES v. FACEBOOK, INC.
`
`Claim 13 of the ’227 patent is representative for the is-
`sues on appeal:
`13. A method which organizes each data unit re-
`ceived by or generated by a computer system,
`comprising the steps of:
`generating a main stream of data units and at least
`one substream, the main stream for receiving
`each data unit received by or generated by the
`computer system, and each substream for con-
`taining data units only from the main stream;
`receiving data units from other computer systems;
`generating data units in the computer system;
`selecting a timestamp to identify each data unit;
`associating each data unit with at least one chron-
`ological
`indicator having
`the respective
`timestamp;
`including each data unit according to the
`timestamp in the respective chronological indi-
`cator in at least the main stream; and
`maintaining at least the main stream and the sub-
`streams as persistent streams.
`Id., col. 16, lines 9–25. Each of the asserted claims contains
`a “main stream” or “main collection” limitation and a “sub-
`stream” or “subcollection” limitation.
`The parties agree that the “main stream” has two prop-
`erties: first, it includes every data unit received or gener-
`ated by the “computer system”; second, it is a time-ordered
`sequence of data units.1 While Facebook contends that
`
`
`1 The ’538 and ’439 patents use the term “docu-
`ments” rather than “data units.” Although the parties
`
`

`

`MIRROR WORLDS TECHNOLOGIES v. FACEBOOK, INC.
`
`5
`
`“main stream”—used in the ’227 and ’538 patents—and
`“main collection”—used in the ’439 patent—are synony-
`mous, Mirror Worlds disagrees. Mirror Worlds admits,
`however, that any difference is immaterial to the resolu-
`tion of Facebook’s summary judgment motion.
`B
`Facebook provides a popular social networking service.
`Several features of Facebook’s service are relevant to this
`appeal. According to Facebook’s description in this case,
`the “News Feed” for a Facebook user displays a variety of
`items that Facebook has “deemed to be relevant” to that
`user. J.A. 1104. “Timeline,” Facebook says, “focuse[s] on a
`particular Facebook user,” showing “basic information
`about that user, as well as actions taken on Facebook by or
`directed toward that user.” Id. And “Activity Log” provides
`“a list of activities that occurred on Facebook that pertain
`to a particular user.” J.A. 1106.2
`Generally, the content Facebook users see is an amal-
`gamation of “objects” and “associations,” which are two
`classes of data. Users, pictures, and comments are types of
`objects, while associations describe the relationship be-
`tween objects. For example, if user “Alice” posts a comment
`on Facebook, an “authorship” association would connect Al-
`ice and the comment.
`In providing content to users, both News Feed and
`Timeline rely on certain “front-end” hardware and soft-
`ware. The evidence—when understood most favorably to
`Mirror Worlds, as required when considering summary
`judgment—indicates that these front-end components
`
`disagree about whether those terms are synonymous, any
`difference is immaterial to our decision in this appeal.
`2 At least two of the three patents at issue here have
`expired. Nevertheless, following the parties’ usage, we use
`the present tense in describing the accused services.
`
`

`

`6
`
`MIRROR WORLDS TECHNOLOGIES v. FACEBOOK, INC.
`
`include a user’s desktop computer, smartphone, or compa-
`rable device and its resident software, together with cer-
`tain “web” technologies, including a PHP layer. See, e.g.,
`J.A. 1483–85, 1488, 1550, 2117–18, 2132, 2422, 2599. The
`two services also rely on certain “back-end” computing
`equipment and associated software to which the user’s de-
`vice is connected over a network such as the Internet. The
`back-end infrastructure for News Feed is called “Mul-
`tifeed.” The “Timeline back-end system” supports both the
`Timeline and Activity Log features. In the summary-judg-
`ment proceedings, Mirror Worlds asserted that those two
`back-end systems were the “computer system[s]” for pur-
`poses of the claims.
`Multifeed has several components, of which three have
`been featured in this appeal: Leaves, Tailer, and Aggrega-
`tor.3 Facebook describes Leaves as a collection of data-
`bases of information about user actions and objects. Tailer,
`in turn, writes user actions and objects to Leaves. Aggre-
`gator retrieves information from Leaves and applies an ag-
`gregation algorithm to create a list of stories that may be
`shown on a particular user’s News Feed.
`The Timeline back-end system includes the Time-
`lineDB database and an Aggregator. TimelineDB has a list
`of all actions performed by a user. Similar to the Multifeed
`Aggregator, the Timeline Aggregator serves as an interme-
`diary between the front end and the database. When a user
`views Timeline, the front end passes parameters to the
`Timeline Aggregator, which then retrieves information
`
`
`3 For simplicity, and to maintain parallelism with
`the other relevant components, we will refer to “Leaves” in
`the singular as a unit, though the evidence sometimes re-
`fers to “the Leaves” in the plural. The parties have not
`identified any way in which such treatment alters the anal-
`ysis relevant to our decision.
`
`

`

`MIRROR WORLDS TECHNOLOGIES v. FACEBOOK, INC.
`
`7
`
`from TimelineDB that is used to create (or render) the im-
`age on the user’s screen.
`Neither Multifeed nor the Timeline back-end system
`contains all the information necessary to produce the fea-
`tures they support. The News Feed and Timeline features
`rely in part on another Facebook system known as “TAO,”
`which stands for “The Associations and Objects.” Facebook
`describes TAO as a “data store that provides access to ob-
`jects and their associations with other objects.” J.A. 1111.
`Retrieving objects such as photographs or comments to dis-
`play on a user’s News Feed or Timeline uses, respectively,
`Multifeed Leaves or TimelineDB, but those back-end com-
`ponents contain pointers to the objects, not the objects
`themselves. It is TAO that is called on to deliver up-to-date
`versions of the objects to which Leaves and TimelineDB
`point. Those objects then become part of the News Feed or
`Timeline viewed by the user.
`C
`In May 2017, Mirror Worlds filed this action against
`Facebook in the District Court for the Southern District of
`New York, alleging that Facebook infringed the asserted
`patents by, e.g., using its servers—including TAO—to pro-
`vide features such as News Feed, Timeline, and Activity
`Log to Facebook users. In its first set of interrogatories,
`Facebook asked Mirror Worlds to identify what elements of
`the accused Facebook services that it was alleging meet the
`“main stream” and “substream” limitations. J.A. 2472–73.
`Facebook did not ask Mirror Worlds to identify what “com-
`puter system[s]” it was accusing. Id. Mirror Worlds re-
`sponded in early December 2017. J.A. 2473. Mirror Worlds
`identified, as meeting the “main stream” limitation, “the
`user-related information in at least Facebook’s Social
`Graph, MemCache, TAO, Multifeed Leaf Servers and Ag-
`gregators, Timeline Databases and Aggregators, Channel
`Servers and RTGW Messaging Bus, and servers, databases
`or aggregators from which Facebook’s Events, Activity Log,
`
`

`

`8
`
`MIRROR WORLDS TECHNOLOGIES v. FACEBOOK, INC.
`
`Graph Search, and search features obtain information for
`Facebook users.” J.A. 2473. Mirror Worlds identified, as
`meeting the “substream” limitation, “the user-related in-
`formation that appears in at least Facebook’s Newsfeed,
`Timeline, Events, Activity Log, Graph Search, and search
`features.” J.A. 2473.
`Fact discovery was not due to close until September
`2018. See J.A. 1045–46, 1057, 1061. But in April 2018,
`after completion of the briefing on claim construction—but
`before significant expert or other factual discovery had oc-
`curred—Facebook filed a letter with the court, asking per-
`mission to file a motion for summary judgment. J.A. 1015–
`17. At a status conference, Facebook argued that it had a
`simple, case-ending point to make, while Mirror Worlds as-
`serted that contention interrogatories cannot be filed under
`local rules until the close of fact discovery, that it was not
`accusing Facebook as a whole but had identified the two
`back-end systems separately from TAO, and that the rec-
`ord did not even include expert disclosures or depositions.
`The court granted Facebook leave to file a motion for sum-
`mary judgment and set out a schedule for responses, while
`allowing discovery to continue. J.A. 1065–66.
`In its motion for summary judgment of non-infringe-
`ment, Facebook made essentially just one point. See
`J.A. 1095–97. It contended that Mirror Worlds had failed
`to provide evidence that there was an accused Facebook
`“computer system” that contained a “main stream” in
`which all data created or received by the system is stored
`in a time-ordered sequence. In support of that contention,
`Facebook argued, simply, that Mirror Worlds had included
`TAO in the accused “computer system[s],” J.A. 1087–89,
`and that the evidence established that “TAO does not store
`
`

`

`MIRROR WORLDS TECHNOLOGIES v. FACEBOOK, INC.
`
`9
`
`all of its data items in any kind of time-ordered sequence,”
`J.A. 1095.4
`In response, Mirror Worlds explained principally that
`Facebook’s motion misunderstood what the accused “com-
`puter system[s]” were. Specifically, it argued that it is the
`News Feed back-end system, Multifeed, and the Timeline
`back-end system specifically that are the systems accused
`of coming within the asserted patent claims. See, e.g.,
`J.A. 1422 (“[t]he Multifeed and Timeline backend sys-
`tems”), 1439 (“the Multifeed system”), 1440 (“the Timeline
`backend system”). Mirror Worlds contended that within
`the Multifeed system, Leaves meets the “main stream” lim-
`itation, and that within the Timeline system, TimelineDB
`meets the limitation. See, e.g., J.A. 1421, 1438–40. Accord-
`ing to Mirror Worlds, both Leaves and TimelineDB include
`every data unit received by their respective computer sys-
`tem and store those data units in a time-ordered sequence.
`J.A. 1438–40 (asserting inclusion of “every data unit”); see
`J.A. 1421, 1427, 1434, 1436, 1439, 1440 (asserting inclu-
`sion of every action and object in the respective systems,
`citing evidence). It does not matter how TAO stores its
`data, Mirror Worlds argued, because TAO is separate from
`Multifeed and the Timeline back-end system. J.A. 1421–
`22.
`
`In reply, Facebook argued that Mirror Worlds had
`failed to identify the relevant “computer system[s]” to
`which Leaves and TimelineDB belong. J.A. 2508–09. Fa-
`cebook emphasized that both Leaves and TimelineDB con-
`sist primarily of pointers used to find corresponding data
`in TAO and that News Feed and Timeline as seen by users
`
`4 Facebook mentioned, as a descriptive matter, that
`the substream and sub-collection data must be drawn from
`the main stream and main collection, but it made no sepa-
`rate argument that evidence was missing as to the sub-
`stream/sub-collection limitations. J.A. 1095–97.
`
`

`

`10
`
`MIRROR WORLDS TECHNOLOGIES v. FACEBOOK, INC.
`
`include data from TAO. J.A. 2509–11. In a footnote, Face-
`book cited certain evidence as assertedly showing that, in
`the Multifeed system, the Aggregator “retrieve[s] data
`units from the non-accused TAO data store.” J.A. 2508–
`09 n.4. On those bases, Facebook contended, Leaves and
`TimelineDB cannot meet the “main stream” limitation.
`J.A. 2511–12. Facebook did not dispute that Leaves and
`TimelineDB store their data units in a time-ordered man-
`ner.5
`The court allowed Mirror Worlds to file a surreply. In
`that filing, Mirror Worlds reiterated its contentions that
`Multifeed and the Timeline back-end system were the rel-
`evant “computer system[s],” and Leaves and TimelineDB
`met the “every data unit” requirement for being “main
`streams” for those systems, even if information from other
`systems might be necessary to create the News Feed and
`Timeline features seen by users. J.A. 2675–77. It also as-
`serted that, contrary to Facebook’s footnote suggestion, the
`evidence showed that the Aggregators do not receive the
`TAO data at issue, which, rather, is obtained by the (unac-
`cused) front-end PHP feature. J.A. 2676 n.4 (citing
`J.A. 2604, 2610 (also appearing at 2430)).
`When it granted Mirror Worlds leave to file a surreply,
`the district court instructed Facebook that it should “resist
`the urge to file further papers in response to Mirror
`Worlds’[] sur reply brief.” J.A. 2673. Instead, the court as-
`sured the parties that it would “consider all of the argu-
`ments raised . . . at oral argument.” Id. At the oral
`argument, Facebook argued that Mirror Worlds still failed
`to show that the Facebook systems meet the “main stream”
`limitation. One of its arguments—the one originally sug-
`gested in its Reply footnote (discussed above)—was that
`
`5 Facebook added a new argument about Mirror
`Worlds’ failure to show that the “substream” and “sub-col-
`lection” limitations are met. J.A. 2512–13.
`
`

`

`MIRROR WORLDS TECHNOLOGIES v. FACEBOOK, INC.
`
`11
`
`the Aggregators receive data from TAO, not just Time-
`lineDB or Leaves. Facebook also argued that the Aggrega-
`tors receive data from certain sources that Facebook had
`never mentioned until the oral argument. J.A. 60–61, 119–
`20.
`The district court granted Facebook’s motion for sum-
`mary judgment on August 11, 2018. The court determined
`that the record established conclusively—so that there was
`no genuine issue of fact about the proposition—that neither
`TimelineDB nor Leaves (which Mirror Worlds identified as
`the accused main streams) contains all the data received or
`generated by their respective computer system. The court
`reasoned that the Aggregators are parts of the accused
`“computer system[s]” and concluded that it was beyond
`reasonable dispute on this record that the Aggregators
`(hence the systems) receive data from TAO that does not
`enter TimelineDB or Leaves. Because there is data re-
`ceived by the accused systems that is not included in Time-
`lineDB or Leaves, the court held, TimelineDB and Leaves
`cannot be main streams. Mirror Worlds Technologies, LLC
`v. Facebook, Inc., 320 F. Supp. 3d 538, 547 (S.D.N.Y. 2018).
`The court entered judgment on August 16, 2018. Mir-
`ror Worlds timely appealed. We have jurisdiction under 28
`U.S.C. § 1295(a)(1).
`
`II
`We review a “grant of summary judgment of non-in-
`fringement under the law of the relevant regional circuit.”
`Clare v. Chrysler Grp., 819 F.3d 1323, 1326 (Fed. Cir.
`2016). The Second Circuit reviews a grant of summary
`judgment de novo. Rojas v. Roman Catholic Diocese of
`Rochester, 660 F.3d 98, 104 (2d Cir. 2011). “The court shall
`grant summary judgment if the movant shows that there
`is no genuine dispute as to any material fact and the mo-
`vant is entitled to judgment as a matter of law.” Fed. R.
`Civ. P. 56(a). “[S]ummary judgment will not lie if the dis-
`pute about a material fact is ‘genuine,’ that is, if the
`
`

`

`12
`
`MIRROR WORLDS TECHNOLOGIES v. FACEBOOK, INC.
`
`evidence is such that a reasonable jury could return a ver-
`dict for the nonmoving party.” Anderson v. Liberty Lobby,
`Inc., 477 U.S. 242, 249 (1986). When determining whether
`summary judgment is appropriate, a court must resolve all
`ambiguities and draw all reasonable inferences against the
`moving party. Matsushita Electrical Industrial Co. v. Zen-
`ith Radio Corp., 475 U.S. 574, 587 (1986).
`A
`The district court rested its summary-judgment ruling
`on a single basis—its determination that one fact could rea-
`sonably be found only in Facebook’s favor. Mirror Worlds
`challenges that determination. Specifically, Mirror Worlds
`argues that the district court erred in concluding that the
`record would require a reasonable jury to find that the Ag-
`gregators in Multifeed and in the Timeline back-end sys-
`tem receive data from TAO—data that is not included
`within Leaves or TimelineDB. We agree that the district
`court erred in so concluding.
`1
`Regarding News Feed and its back-end system, Mul-
`tifeed, the district court concluded that the record required
`a finding that the Aggregator “draws the actual content
`that is indexed by the ‘Multifeed Leaves’ from ‘TAO,’ and
`receives information from ‘TAO.’” Mirror Worlds, 320 F.
`Supp. 3d at 546. The court relied on a declaration of
`Dr. Bronson, a Facebook engineer, and the testimony of
`Dr. Vickery, another Facebook engineer. Id. But that evi-
`dence does not establish that the Multifeed Aggregator re-
`ceives content from TAO that is not in Leaves.
`The Bronson declaration states that “when News Feed,
`Timeline, [and] Activity Log . . . seek to retrieve objects
`such as photos and comments from Facebook’s data store,
`it is TAO that retrieves and delivers an up-to-date version
`of those objects to those features.” J.A. 1111–12 (emphasis
`added). The quoted statement does not say that TAO
`
`

`

`MIRROR WORLDS TECHNOLOGIES v. FACEBOOK, INC.
`
`13
`
`delivers content to the Multifeed Aggregator (in the back-
`end system). It states only that the content is delivered to
`the front-end features, including News Feed. The state-
`ment is consistent with Mirror Worlds’ theory of the case,
`and it does not establish that the identified data from TAO
`is received by the accused “computer system” (the back-end
`system), which is the premise of the district court’s deter-
`mination that Leaves, in the back-end system, cannot be a
`main stream (because that TAO data is not included in
`Leaves).
`A similar conclusion is required as to Dr. Vickery’s tes-
`timony. Dr. Vickery said that “the aggregators combine to-
`gether metadata that’s received from the leaves into
`another list of metadata that has several steps such as que-
`rying TAO . . . to fetch additional information that is re-
`quired to render someone’s News Feed.” J.A. 2595. Dr.
`Vickery also said that “one of the most important things in
`generating someone’s News Feed is their list of friends and
`the pages that they follow. And that information is queried
`from TAO.” J.A. 2599. Those statements, like Dr. Bron-
`son’s statement discussed above, do not establish that the
`referred-to data from TAO enters the Aggregator or, there-
`fore, the only accused system for News Feed, i.e., Multifeed.
`In another statement, Dr. Vickery said that the
`“[a]ggregators combine together information from mul-
`tifeed leaf servers as well as other sources in order for—as
`the next step in preparing someone’s News Feed.”
`J.A. 2595 (emphasis added). But that testimony does not
`clearly state that the Multifeed Aggregator retrieves the
`cited information from TAO. It is not enough to remove the
`issue from genuine dispute, especially in the face of evi-
`dence suggesting otherwise. See, e.g., J.A. 2014 (Face-
`book’s Dr. Bronson indicating it is the “application layer”
`that “queries TAO using [the] backend identifiers”), 2030
`(Dr. Bronson discussing certain “trace” tests: “My recollec-
`tion is that all the TAO queries that—that were initiated
`
`

`

`14
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`MIRROR WORLDS TECHNOLOGIES v. FACEBOOK, INC.
`
`as, like, directly in response to rendering my News Feed
`came from the—the PHP application layer.”).
`In fact, other testimony from Dr. Vickery suggests that
`TAO is queried by a part of the front-end system called the
`PHP layer (PHP being a scripting language). For example,
`Dr. Vickery testified that “the list of story identifiers that
`the aggregator returns back to PHP contains pointers
`which can be used, perhaps through a series of steps, to
`fetch the set of information that will be rendered in the fi-
`nal story” and the returned list of story identifiers “deter-
`mines what queries to TAO will be run in order to generate
`those stories.” J.A. 2604. Additional testimony of Dr. Vick-
`ery further suggests that the PHP layer, not the Aggrega-
`tor, queries TAO. J.A. 2602–04.
`We conclude that, on the current record evidence, the
`district court erred in concluding that a reasonable jury
`would have to find that the Multifeed Aggregator receives
`data from TAO that is not in Leaves. That erroneous con-
`clusion was the sole basis for the grant of summary judg-
`ment as to News Feed.
`
`2
`Our conclusion regarding Timeline is similar to our
`conclusion regarding News Feed. The district court con-
`cluded that a reasonable jury would have to find that the
`Timeline Aggregator receives data from TAO that is not in
`TimelineDB. Mirror Worlds, 320 F. Supp. 3d at 546–47.
`The court cited the declaration of Dr. Bronson; Mirror
`Worlds’ response to Facebook’s statement of material facts;
`and the testimony of Jeffrey Huang, a Facebook engineer.
`Id. at 546. We conclude, to the contrary, that the record
`evidence, as presented to the district court and identified
`to us, does not compel a reasonable jury to find that the
`Timeline Aggregator receives the asserted data from TAO.
`As for Dr. Bronson, the district court relied on the
`statement by Dr. Bronson we addressed above
`in
`
`

`

`MIRROR WORLDS TECHNOLOGIES v. FACEBOOK, INC.
`
`15
`
`discussing the News Feed aspect of the case. As discussed,
`Dr. Bronson’s statement does not show that the Timeline
`Aggregator receives the cited data from TAO.
`Mirror Worlds’ response to Facebook’s statement of
`material facts also does not show, as Facebook contends,
`that the Timeline Aggregator receives the relevant data
`from TAO. In the paragraphs cited by the court, Mirror
`Worlds discussed only querying of the TimelineDB, not of
`TAO, by the Timeline Aggregator. J.A. 1464–67. Facebook
`has not pointed to anything in the Mirror Worlds’ response
`that supports the district court’s crucial determination
`about interaction between the Timeline Aggregator and
`TAO.
`Mr. Huang’s testimony is similarly insufficient. Mr.
`Huang testified that “[i]n order to actually show anything
`on Timeline, you need to take those IDs you get from the
`TimelineDB and go to TAO to actually fetch the content.”
`J.A. 2587. Like Dr. Bronson’s testimony, Mr. Huang’s tes-
`timony does not show that the Timeline Aggregator is the
`element of Facebook’s infrastructure that receives the re-
`ferred-to content from TAO. Mr. Huang’s testimony is con-
`sistent with the theory that front-end systems receive that
`content without the content having first gone through the
`accused (back-end) system. Indeed, other testimony by Mr.
`Huang suggests that the front-end web layer retrieves that
`content: Mr. Huang testified that “it’s really the web tier
`that I consider the frontend that then, you know, needs to
`go to TAO to actually fetch any of the content.” J.A. 1910–
`11. At least one internal Facebook document corroborates
`Mr. Huang’s testimony that the front end, including PHP,
`queries TAO. J.A. 2430.
`We conclude that, on the current record evidence, the
`district court erred in concluding that a reasonable jury
`would have to find that the Timeline Aggregator receives
`data from TAO that is not in TimelineDB. That erroneous
`
`

`

`16
`
`MIRROR WORLDS TECHNOLOGIES v. FACEBOOK, INC.
`
`conclusion was the sole basis for the grant of summary
`judgment as to Timeline.
`
`B
`Facebook asks us to affirm on grounds other than the
`ones relied on by the district court. We find neither of its
`two arguments to be a sound basis for affirmance here.
`First, citing Celotex Corp. v. Catrett, 477 U.S. 317
`(1986), Facebook argues that it is entitled to summary
`judgment under Federal Rule of Civil Procedure 56 on the
`ground that Mirror Worlds failed to provide evidence that
`would permit a jury to find that Leaves or TimelineDB con-
`tains every data unit received or generated by, respectively,
`Multifeed or the Timeline back-end system. The Second
`Circuit has explained that “when a defendant moves for
`summary judgment, it is the defendant who must show en-
`titlement to judgment, notwithstanding that, at trial, the
`plaintiff will have the burden of proving every element of
`its claim.” Nick’s Garage, Inc. v. Progressive Casualty Ins.
`Co., 875 F.3d 107, 115 (2d Cir. 2017). “The mere assertion
`by a defendant moving for summary judgment that the
`plaintiff ‘has not produced any evidence’ to support an es-
`sential element of the plaintiff’s claim does not satisfy the
`burden that Rule 56(a) imposes.” Id. “[U]nless the moving
`defendant cites portions of the record that show its entitle-
`ment to judgment, an assertion by the defendant that the
`plaintiff ‘has not produced any evidence,’ without more,
`does not show that the plaintiff has insufficient evidence.”
`Id. at 115–16.
`Facebook, in its summary-judgment motion, did not
`show that Mirror Worlds “cannot produce admissible evi-
`dence to carry its burden” to show that Leaves or Time-
`lineDB contains every data unit. Fed. R. Civ. P. 56(c)
`advisory committee’s note to 2010 amendment. “A plaintiff
`is under no obligation to ‘produce’ its evidence prior to trial,
`unless such an obligation arose in response to a discovery
`demand (or a court order) requiring the plaintiff to set forth
`
`

`

`MIRROR WORLDS TECHNOLOGIES v. FACEBOOK, INC.
`
`17
`
`the evidence supporting its claim.” Nick’s Garage, 875 F.3d
`at 115. As far as we have been shown, Facebook has not
`made a discovery demand that Mirror Worlds identify all
`its evidence for the “every data unit” limitation. Given that
`discovery is still open, Mirror Worlds may still muster evi-
`dence to prove its claim. Facebook has not otherwise
`shown that sufficient evidence cannot be produced.
`When Facebook moved for summary judgment, having
`been allowed to file such a motion even before discovery
`closed, its attempt to “show” entitlement to summary judg-
`ment rested on one assertion: that TAO does not store in-
`formation in a time-ordered sequence. J.A. 1095–97;
`J.A. 1092–94. Facebook did not assert that the record
`lacked evidence of infringement even if TAO is not part of
`the “computer system.” Mirror Worlds, in arguing that the
`accused “computer system[s]” do not include TAO, met the
`ground asserted by Facebook, and the district court did not
`conclude otherwise. Mirror Worlds, in fact, went further.
`As recounted above, it identified the accused “systems,” it
`described (with evidentiary support) how those systems
`work, and it asserted based on that description that Leaves
`and TimelineDB meet the “every data unit” requirement
`and hence are “main streams.” Although the district court
`concluded that Mirror Worlds’ response failed in one par-
`ticular respect, that conclusion is erroneous, as already dis-
`cussed. On this record, we are not required, and we do not
`think it appropriate, to declare on appeal that Mirror
`Worlds’ opposition was categorically insufficient to with-
`stand summary judgment.
`Second, Facebook points to certain information that it
`argues is received by the two back-end systems that is not
`included in Leaves or TimelineDB: information from Ad-
`finder and Ego for Multifeed; certain query criteria for the
`Timeline back-end system. But although Facebook men-
`tioned these points at the oral argument before the district
`court, see J.A. 119–20, it did not present them in its motion
`or even its reply in the district court, leaving Mirror Worlds
`
`

`

`18
`
`MIRROR WORLDS TECHNOLOGIES v. FACEBOOK, INC.
`
`without a fair opportunity to address them. And the dis-
`trict court did not address these points, which raise ques-
`tions about, among other things, whether this information
`comes within the relevant claim terms, e.g., “data units,”
`under a proper constructi

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