Steps Performed by Software on Mobile Device Owned by Subscriber but Provided by Defendant are Attributable to Defendant

In denying defendants' motion for summary judgment of noninfringement as to plaintiff's wireless messaging patents the court rejected defendants' argument that steps performed by software embedded in a mobile device are performed by the owner of the device. "[D]efendants urge that because their subscribers possess and own the wireless devices in question, the subscribers and defendants must both act to satisfy the claim limitations. In other words, the subscribers’ ownership of the devices renders the operation of the software attributable to the subscribers, rather than defendants. . . . The court rejects defendants’ contention that because their subscribers own the wireless devices at issue, the conduct of multiple parties is required. The performance of certain steps of the method claims by software on wireless devices that defendants provide to their subscribers does not prevent the claims from being satisfied by the defendants’ conduct."

Intellect Wireless, Inc. v. T-Mobile USA, Inc. et al., 1-08-cv-01215 (ILND August 13, 2010, Memorandum Opinion & Order) (Gottschall, J.)