“Hypothetical” or “Theoretical” Infringement Unproven in “Real-World Implementation” Insufficient to Support Infringement of Method Claim

The court granted in part defendant's motion for summary judgment of noninfringement of plaintiff's encryption patent where an accused encryption protocol only theoretically infringed. "[E]ven if the Plaintiff could produce evidence to demonstrate that TKIP, in certain random implementations, would result in blocks of uniform equal length, that capability alone would not be sufficient for a finding of infringement, at least as to the methods claims. . . . [T]he question is whether [defendant] can be held liable because [its encryption protocol] may hypothetically result in identical length blocks, although the Plaintiff has been unable to demonstrate at this stage of the litigation that real-world implementations of the protocol can infringe. . . . [Defendant] has not provided evidence that [its encryption ] is incapable of resulting in equal block length, only that it is 'theoretical' and presumably, highly unlikely. Nevertheless, the Defendant has shown that the evidence fails to establish a material issue of fact essential to the patentee’s case. . . . This is not to say that in every instance of patent infringement, the patentee must necessarily demonstrate specific instances of infringement. What the Court finds here is that [plaintiff] has failed to even satisfy the minimal burden that [defendant's encryption] is in reality capable of meeting the 'blocks' limitation. Thus, [plaintiff] has failed to establish a genuine issue of material fact regarding literal infringement with regard to [defendant's encryption]."

Paone v. Microsoft Corporation, 2-07-cv-02973 (NYED July 30, 2012, Order) (Spatt, J.).