Claim construction required before ruling on divided infringement defense

The court denied the accused infringer's motion for summary judgment of noninfringement on the ground that no one party could perform all steps of the method claim, since certain steps were performed on the accused infringer's server and other steps were performed by third-party users. "[The accused infringer] has not established whether the computer server itself is an independent actor, or is merely functioning as a piece of technology used or controlled by another actor. . . . To determine whether the users perform all the elements of the claim with the assistance of the server, or whether the users perform some of the elements and then direct or control the server in its performance of the remaining elements of the claims at issue, this Court must first determine what the elements are via a claim construction hearing."

kSolo, Inc. v. Gary Catona, 2-07-cv-05213 (CACD November 10, 2008, Minutes of Motion Hearing)