Wednesday, September 1, 2010

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.)

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