Online Shopping Cart did not Implicate Divided Infringement Because Web Pages Contained Embedded Programming and did not Require a User to Download or Install Software

The court denied defendants' post-trial motion for judgment as a matter of law that the accused online shopping cart system did not infringe plaintiff's internet commerce patents. The court rejected defendant's divided infringement argument that the patented system required two computers and defendants' only put into service one such computer. "Defendants argue that they. . . do not use the claimed system because the claims require a buyer computer (client-side) and a shopping cart computer (server-side). . . . Here, unlike [Centillion Data Systems, LLC v. Qwest Communications International, Inc., 631 F.3d 1279 (Fed. Cir. 2011)], Defendants do not require their customers to download and install software so that the buyer computer is able to interact with the shopping cart computer as required by the claims. Rather, the delivery of Defendants’ web page itself provides the programming required by the claims; the user is not required to install anything. Thus, Defendants’ web server, by delivering web pages containing embedded programming, puts the system as a whole into service so that Defendants may benefit from the system. Accordingly, Defendants use the system under § 271(a) by putting the system into service, i.e., controlling the system as a whole and deriving benefit from it."

Soverain Software LLC v. J.C. Penney Corporation, Inc., et. al., 6-09-cv-00274 (TXED August 9, 2012, Order) (Davis, J.).