Proof that Accused Device "Could be Modified to Infringe" is Insufficient to Support Finding of Infringement

Plaintiff's motion for summary adjudication of infringement of its speech recognition patents was denied. "[Plaintiff] argues that it is not necessary for the [accused] platform to actually perform [voice activity detection (VAD)] to infringe. [Plaintiff] argues that the [accused] platform merely needs to be capable of performing VAD in order for the Court to find infringement. . . . Further precedent of the Federal Circuit states that a finding 'that a device is capable of being modified to operate in an infringing manner is not sufficient, by itself to support a finding of infringement.' Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1330 (Fed. Cir. 2001). A finding that the [accused] platform could be modified to infringe is not sufficient to support a finding of infringement. The Court therefore need not reach the issue of the ease or difficulty of modifying the [accused] platform. The law does not support the proposition that a device that is capable of operating differently or capable of being modified is infringing."

Phoenix Solutions, Inc. v. West Interactive Corp., 2-09-cv-08156 (CACD August 25, 2010, Summary Judgment Order) (Pfaelzer, J.)