End User’s Option To Choose Noninfringing Configuration Does Not Necessarily Negate Direction And Control

The court denied defendants' motion for summary judgment of noninfringement based on divided infringement and rejected the argument that steps performed by an end user could not be under defendants' control because the end user could have chosen noninfringing options. "[D]efendants point out that the clients 'may choose not to visit the accused websites' and 'the client browsers may be configured to connect to Defendants’ accused websites without using the accused . . . encryption algorithm.' While those points are true, they are immaterial to the question whether the claimed method steps performed by a client computer are performed at the direction or control of the defendants’ servers. . . . [Plaintiff] has offered evidence that if the RC4 algorithm is enabled on the clients’ browsers when the clients visit the defendants’ websites, the defendants’ servers will dictate that RC4 be used. If the clients’ browsers do not offer RC4 as an encryption algorithm, RC4 will not be used. However, that is not to say that that the client’s computer is not directed or controlled by the defendant’s server; it simply establishes that in such an instance no infringement takes place.. . . The defendants’ argument on this point is as flawed as the argument that when a physician performs a patented medical procedure on a patient that requires some action by the patient — e.g., swallowing a pill — there is 'divided infringement' because the patient could have decided not to undergo the medical procedure in the first place."

TQP Development, LLC v. Intuit, Inc., 2-12-cv-00180 (TXED June 20, 2014, Order) (Bryson, C.J.)