Case: 22-1599 Document: 52 Page: 1 Filed: 04/01/2024
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`NOTE: This disposition is nonprecedential.
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`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ALEXSAM, INC.,
`Plaintiff-Appellant
`
`v.
`
`CIGNA CORPORATION, CIGNA HEALTH AND
`LIFE INSURANCE COMPANY, CONNECTICUT
`GENERAL LIFE INSURANCE COMPANY, CIGNA
`HEALTHCARE OF TEXAS, INC.,
`Defendants-Appellees
`______________________
`
`2022-1599
`______________________
`
`Appeal from the United States District Court for the
`Eastern District of Texas in No. 2:20-cv-00081-RWS-RDP,
`Judge Robert Schroeder, III.
`______________________
`
`Decided: April 1, 2024
`______________________
`
`STEVEN RITCHESON, Insight, PLC, Marina del Rey, CA,
`argued for plaintiff-appellant.
` Also represented by
`JACQUELINE KNAPP BURT, Heninger Garrison Davis, LLC,
`Atlanta, GA; TIMOTHY C. DAVIS, W. LEE GRESHAM, III, Bir-
`mingham, AL.
`
` RICARDO BONILLA, Fish & Richardson P.C., Dallas, TX,
`
`

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`Case: 22-1599 Document: 52 Page: 2 Filed: 04/01/2024
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`ALEXSAM, INC. v. CIGNA CORPORATION
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`argued for defendants-appellees. Also represented by NEIL
`J. MCNABNAY, BRET THOMAS WINTERLE, LANCE E. WYATT,
`JR.
` ______________________
`
`Before PROST, TARANTO, and HUGHES, Circuit Judges.
`HUGHES, Circuit Judge.
`AlexSam, Inc. appeals a summary judgment decision
`holding that Cigna Corp. and its affiliates did not infringe
`AlexSam, Inc.’s multifunction card system patent. Because
`AlexSam, Inc. failed to provide sufficient evidence of in-
`fringement, we affirm.
`
`I
`A
`owns U.S. Patent
`(AlexSam)
`Inc.
`AlexSam,
`No. 6,000,608 (the ’608 patent), disclosing a “multifunction
`card system.” J.A. 7. The basic premise of the patent is the
`ability to use a debit or credit card for purposes other than
`financial transactions. In the case at hand, the function
`would be to use a debit or credit card that could also pro-
`vide a healthcare provider with a cardholder’s medical ac-
`count information and other health-related information.
`See Appellant’s Br. at 3 n.1.
`AlexSam’s infringement claims center on independent
`claim 32 of the ’608 patent, which is representative:
`A multifunction card system comprising:
`a. at least one debit/medical services card
`having a unique identification number en-
`coded on it comprising a bank identification
`number approved by the American Bank-
`ing Association for use in a banking net-
`work;
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`ALEXSAM, INC. v. CIGNA CORPORATION
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`b. a transaction processor receiving card
`data from an unmodified existing standard
`point-of-sale device, said card data includ-
`ing a unique identification number;
`c. a processing hub receiving directly or in-
`directly said card data from said transac-
`tion processor; and
`d. said processing hub accessing a first da-
`tabase when the card functions as a debit
`card and said processing hub accessing a
`second database when the card functions
`as a medical card.
`’608 patent at 15:65–16:11.
`Dependent claim 33, also at issue in this case, simply
`claims that the multifunction card includes a user’s medi-
`cal identification number. Id. at 16:12–14.
`B
`On March 18, 2020, three years after the ’608 patent’s
`expiration, AlexSam filed suit against Cigna Corp., Cigna
`Health and Life Insurance Co., Connecticut General Life
`Insurance Co., and Cigna Healthcare of Texas, Inc. (collec-
`tively, Cigna) in the Eastern District of Texas, alleging that
`Cigna’s Consumer-Driven Health Plan debit cards in-
`fringed independent claim 32 and dependent claim 33 of
`the ’608 patent. Before holding a Markman claim construc-
`tion hearing, the trial court issued suggested preliminary
`constructions for disputed claims to facilitate discussion
`between the parties. AlexSam requested that the trial
`court adopt the same construction for the term “unmodi-
`fied” in claim 32 that was used in a virtually identical claim
`from a case 15 years prior. See AlexSam, Inc. v. Datastream
`Card Servs. Ltd., No. 2:03–CV–337, 2005 WL 6220095, at
`*9 (E.D. Tex. June 10, 2005) (hereinafter, Datastream).
`Compare J.A. 80 (AlexSam proposing the Datastream
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`ALEXSAM, INC. v. CIGNA CORPORATION
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`construction in this case), with J.A. 598 (AlexSam noting
`that since 2005, courts have used the Datastream construc-
`tion at AlexSam’s request).
`The trial court adopted the Datastream construction
`but added two commas to it at Cigna’s request for clarity.
`The final construction for “unmodified” in claim 32 reads:
`“a terminal, for making purchases, that is of the type in use
`as of July 10, 1997, and that has not been reprogrammed,
`customized, or otherwise altered with respect to its soft-
`ware or hardware for use in the card system.” J.A. 80.
`After the close of discovery, Cigna filed a motion for
`summary judgment of non-infringement and AlexSam filed
`a motion for summary judgment of infringement. After a
`hearing on the motions, the magistrate judge overseeing
`the case issued a recommendation that the trial court grant
`Cigna’s motion for summary judgment of non-infringe-
`ment, based on a proposed finding that AlexSam lacked
`sufficient evidence to establish Cigna’s infringement, and
`deny AlexSam’s summary-judgment motion. The trial
`court accepted the magistrate judge’s recommendation,
`granting Cigna’s motion and denying AlexSam’s motion.
`Alexsam, Inc. v. Cigna Corp., No. 2:20-cv-81 (E.D. Tex.
`Mar. 16, 2022), ECF No. 248. This appeal followed. We
`have jurisdiction under 28 U.S.C. § 1295(a)(1).
`II
`Our court reviews a claim construction based on intrin-
`sic evidence de novo and reviews any findings of fact based
`on extrinsic evidence for clear error. SpeedTrack, Inc. v.
`Amazon.com, 998 F.3d 1373, 1378 (Fed. Cir. 2021). “We re-
`view summary judgment decisions under regional circuit
`precedent . . . .” Unwired Planet, LLC v. Apple Inc., 829
`F.3d 1353, 1356 (Fed. Cir. 2016). The Fifth Circuit reviews
`the grant of summary judgment de novo. Patel v. Tex. Tech
`Univ., 941 F.3d 743, 747 (Fed. Cir. 2019). “Summary judg-
`ment is appropriate when, drawing all justifiable infer-
`ences in the nonmovant’s favor, the movant shows that
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`there is no genuine dispute as to any material fact and the
`movant is entitled to judgment as a matter of law.” Un-
`wired Planet, 829 F.3d at 1356; see also Fed. R. Civ. P.
`56(a); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
`133, 150 (2000).
`
`III
`AlexSam raises two issues on appeal: (1) whether the
`district court erred in applying the district court’s and par-
`ties’ agreed-upon claim construction for claim 32 of the ’608
`patent and (2) whether AlexSam lacked sufficient evidence
`for a reasonable jury to find that Cigna infringed the ’608
`patent. We address each in turn.
`A
`During the Markman proceedings previously discussed
`at Section I.B, supra, the district court construed the mean-
`ing of the term “unmodified existing standard point-of-sale
`[(POS)] device,” which is found in claim 32 (element b) of
`the ’608 patent. At that time, AlexSam had proposed the
`construction. J.A. 598. Now, AlexSam argues that while
`claim 32 was construed correctly, the district court erred
`by ignoring the end of the construction, which states “for
`use in the card system.” We disagree.
`AlexSam has advocated for over fifteen years for the
`same claim construction contained in claim 32 of the ’608
`patent. See, e.g., Datastream, 2005 WL 6220095, at *9;
`AlexSam, Inc. v. Humana, Inc., No. 2:07–cv–288, 2009 WL
`2843333, at *4 (E.D. Tex. Aug. 28, 2009). For the first time,
`on summary judgment in this case, AlexSam argues for a
`broader construction of claim 32. AlexSam asserts that “for
`use in the card system” means that “a closed system that
`required single-function dedicated hardware to be installed
`in each retail location” would not result in infringement of
`the ’608 patent. J.A. 960. Conversely, a “general use POS
`that applied a BIN (or encrypted BIN) to access a pro-
`cessing hub over an existing banking network would
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`[infringe], even if the POS device required some prepro-
`gramming and configuration.” J.A. 960. The magistrate
`judge “decline[d] to hear [AlexSam’s] waived claim con-
`struction arguments that could have and should have been
`raised in the first instance during claim construction.” J.A.
`108. The magistrate judge’s decision is in line with our
`precedent. Where a court has prescribed specific claim con-
`struction procedures and the parties have proceeded to-
`ward trial in reliance on them, the court has discretion to
`preclude parties from injecting “new claim construction
`theories on the eve of trial.” Bettcher Indus., Inc. v. Bunzl
`USA, Inc., 661 F.3d 629, 640–41 (Fed. Cir. 2011). Thus, we
`decline to consider AlexSam’s eleventh-hour arguments for
`a broader construction of claim 32 of the ’608 patent.
`AlexSam also argues that the magistrate judge did not
`properly apply the claim term “for use in the card system.”
`To support this allegation, AlexSam points to the magis-
`trate’s report and recommendation to the trial court. We
`find the record reflects the opposite. The magistrate judge
`did consider the term “for use in the card system” when it
`stated that “any modification to the software or hardware
`that impacts how the POS device would be used in the card
`system would fall outside of the scope of the claims.” J.A.
`109 (emphasis added). Even Cigna acknowledged this,
`stating that adding a sticker to a POS device or replacing
`its power cord would not qualify as a modification of the
`POS device “for use in the card system.” AlexSam is incor-
`rect in its assertion that the trial court did not give weight
`to the term “for use in the card system.”
`We previously applied the same claim construction lan-
`guage in Alexsam, Inc. v. IDT Corp., 715 F.3d 1336 (Fed.
`Cir. 2013), and left it undisturbed. Discussing AlexSam’s
`burden of proof for infringement, we stated that “Alexsam
`needed to prove both that these systems made use of ter-
`minals ‘of the type in use as of July 10, 1997,’ and also that
`those terminals ‘ha[d] not been reprogrammed, custom-
`ized, or otherwise altered with respect to
`[their]
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`software . . . for use in the card system.’” IDT, 715 F.3d at
`1341 (emphasis added and emphasis in original omitted).
`Thus, our court, like previous courts, appropriately consid-
`ered the limitation “for use in the card system,” despite
`AlexSam’s claims to the contrary.1
`B
`While AlexSam spends a significant amount of time ar-
`guing about claim construction issues, the reality is that
`this case hinges on AlexSam’s infringement claims against
`Cigna, which fail in light of our precedential decision in
`IDT. In that case, AlexSam alleged that IDT Corp. in-
`fringed its ’608 patent—the same patent at issue here. We
`held that AlexSam did not provide sufficient evidence that
`the alleged infringer used unmodified devices—its experts
`simply opined that the devices were unmodified because
`the technology from 1997 in these devices was unchanged
`for the purposes of the ’608 patent’s technology. IDT, 715
`F.3d at 1342. Thus, an expert’s opinion on what was simply
`“required” in order to activate an IDT card was different
`
`
`1 AlexSam contended to the trial court that “the
`[Federal Circuit] in IDT erred by ruling that the POS de-
`vices cannot be modified in any way . . . [therefore] the rea-
`soning in IDT cannot and should not be applied here.” J.A.
`991. To the extent that AlexSam contends that our decision
`in IDT was in error, we see none, and in any event, a panel
`of this court lacks the authority to overrule a prior panel
`absent a Supreme Court or en banc decision. Deckers Corp.
`v. United States, 752 F.3d 949, 964 (Fed. Cir. 2014) (“We
`have . . . adopted the rule that a panel of this court—which
`normally sits in panels of three, and not en banc—is bound
`by the precedential decisions of prior panels unless and un-
`til overruled by an intervening Supreme Court or en banc
`decision.”).
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`from actual evidence that POS devices had been modified
`to utilize an IDT card. Id.
`Despite this binding precedent, AlexSam’s expert tes-
`timony in this case suffers from similar flaws. AlexSam’s
`experts stated that while modifications and software up-
`dates may have been implemented in POS devices since
`1997, they still function as a POS device in 1997 would
`function regarding the ’608 patent’s technology. But as the
`magistrate judge noted, “[a]t no point in either [AlexSam’s
`expert’s] report or [a fact witness’s] deposition did either
`one offer any evidence ‘whether modifications have, in fact,
`been made for any reason’ to the POS terminals used in the
`accused system,” as IDT requires. J.A. 112 (quoting IDT,
`715 F.3d at 1342). The magistrate judge continued,
`“[t]hough Alexsam need not necessarily have conclusive
`proof at this summary judgment stage that every transac-
`tion occurred at an ‘unmodified standard POS device,’ it
`does need enough evidence from which a reasonable jury
`could conclude that the transactions did actually occur at
`‘unmodified standard POS device[s].’ Alexsam has pro-
`vided none.” J.A. 113. The magistrate judge correctly con-
`cluded that “AlexSam’s evidence in this case, like its
`evidence in IDT, simply shows that modifications of stand-
`ard existing POS devices were not required for use in the
`accused system. Binding precedent establishes that such
`evidence is insufficient.” J.A. 113. We concur.
`IV
`We have considered the rest of AlexSam’s arguments
`and find them unpersuasive. We therefore affirm the dis-
`trict court’s decision that AlexSam failed to provide suffi-
`cient evidence of Cigna’s infringement of claims 32 and 33
`of the ’608 patent.
`
`AFFIRMED
`
`