Opinion
Case No. 2:22-cv-01009-MCS (MRWx)
2024-01-04
MICROSOFT CORPORATION, Plaintiff, v. MEDIAPOINTE, INC. and AMHC, Inc., Defendants.
Betty H. Chen, Desmarais LLP, San Francisco, CA, Christopher S. Marchese, Fish and Richardson PC, Los Angeles, CA, Claire Chang, Fish and Richardson P.C., Redwood City, CA, Elliot Scher, Jason W. Wolff, Fish and Richardson P.C., San Diego, CA, Sara C. Fish, Pro Hac Vice, Fish and Richardson, Atlanta, GA, for Plaintiff. Kalpana Srinivasan, Ellie Rae Dupler, Nicholas Nathan Spear, Susman Godfrey L.L.P., Los Angeles, CA, Justin C. Kenney, Pro Hac Vice, Ahmad Zavitsanos and Mensing PLLC, Houston, TX, Larry Y. Liu, Pro Hac Vice, Meng XI, Thomas Del-Rosario, Susman Godfrey LLP, Houston, TX, for Defendants.
Betty H. Chen, Desmarais LLP, San Francisco, CA, Christopher S. Marchese, Fish and Richardson PC, Los Angeles, CA, Claire Chang, Fish and Richardson P.C., Redwood City, CA, Elliot Scher, Jason W. Wolff, Fish and Richardson P.C., San Diego, CA, Sara C. Fish, Pro Hac Vice, Fish and Richardson, Atlanta, GA, for Plaintiff.
Kalpana Srinivasan, Ellie Rae Dupler, Nicholas Nathan Spear, Susman Godfrey L.L.P., Los Angeles, CA, Justin C. Kenney, Pro Hac Vice, Ahmad Zavitsanos and Mensing PLLC, Houston, TX, Larry Y. Liu, Pro Hac Vice, Meng XI, Thomas Del-Rosario, Susman Godfrey LLP, Houston, TX, for Defendants.
ORDER GRANTING MICROSOFT'S MOTION FOR SUMMARY JUDGMENT OF NONINFRINGEMENT [ECF NO. 145]; ORDER FINDING REMAINING DAUBERT MOTIONS AND MOTION TO STRIKE [ECF NOS. 146, 161, and 162] MOOT. (SEALED)
MARK C. SCARSI, UNITED STATES DISTRICT JUDGE
Plaintiff Microsoft Corporation ("Microsoft") brought this action against Defendants MediaPointe, Inc. and AMHC, Inc. ("MediaPointe") seeking declaratory judgments that it does not infringe U.S. Patents No. 8,559,426 (the "'426 Patent") and 9,426,195 ("the '195 Patent") and that the patents are invalid. See Complaint, ECF No. 1; "FAC," ECF No. 39. MediaPointe filed counterclaims for infringement. See MediaPointe's Counterclaims, ECF No. 45; MediaPointe's First Amended Counterclaims, ECF No. 58. In its July 7, 2023 claim construction ruling, the Court found the claims of the '426 Patent invalid due to indefiniteness. See ECF No. 106 at 12-13, 14, 15. Microsoft's motion for summary judgment concerns only the '195 Patent.
Microsoft moves for summary judgment of noninfringement. ("MSJ," ECF No. 145.) With its motion, Microsoft filed a Memorandum in Support ("Memo," ECF Nos. 145-1, 144-1 (sealed)), a declaration ("Wolff Decl.," ECF No. 145-2), several exhibits ("Microsoft's Exs.," ECF Nos. 145-3-145-15, 144-2-144-7 (sealed), and 164-1-164-4), and a Statement of Uncontroverted
Facts and Conclusions of Law ("SUF," ECF No. 145-16). MediaPointe filed an opposition ("Opp'n," ECF Nos. 176, 175-1 (sealed)), a declaration ("Liu Decl.," ECF No. 176-1), and several exhibits ("MP's Exs.," ECF Nos. 176-2-176-10 and 175-2-175-4 (sealed)). Microsoft then filed a reply ("Reply," ECF No. 190), a declaration in support of its reply ("Second Wolff Decl.," ECF No. 190-1), three additional exhibits (ECF Nos. 190-2-190-4), and a response to MediaPointe's Statement of Genuine Disputes of Material Facts ("RSUF," ECF Nos. 189, 188-1 (sealed)). The Court held a hearing on November 20, 2023. For the following reasons, the Court GRANTS Microsoft's Motion for Summary Judgment.
MediaPointe filed its Statement of Genuine Disputed Fact ("GDF," ECF Nos. 176-2, 175-2 (sealed)) as Exhibit 1 to its Opp'n. MediaPointe filed its Additional Statement of Undisputed Facts ("ASUF," ECF No. 176-3) as Exhibit 2 to its Opp'n.
The parties filed portions of their briefs and accompanying exhibits under seal. Within seven days of the issuance of this Order, the parties shall file a joint statement as to whether any material stated in this Order shall remain under seal as well as a proposed redacted version. The Court will then determine whether any portions of this Order will be redacted in the version filed on the public docket, with a corresponding, non-redacted version filed under seal.
The parties also filed three Daubert Motions. MediaPointe moves to exclude testimony of Microsoft's Experts Ms. Julia Rowe and Dr. Darrell Long. ECF No. 146. Microsoft moves to strike identification and testimony of Joseph Hayes. ECF No. 161. Microsoft also moves to Exclude Damages Related Opinions of Mr. Robert Mills and Dr. Aviel Rubin. ECF No. 162. The Court finds each of this motion MOOT in view of the noninfringement ruling.
I. BACKGROUND
A. The Accused Products
MediaPointe accuses Microsoft's Azure Front Door ("AFD") and Azure Content Delivery Network ("CDN") products. Memo at 7-8. AFD is "an application layer load balancer" that helps route client requests to the correct computers. Id. Azure CDN helps provide customers content from an origin server using a network of edge servers, also called Points-of Presence. Id. Relevant to the instant motion, "[c]lients of Azure Front Door and Azure CDN are routed to an edge server by initiating the Border Gateway Protocol ('BGP')." RSUF ¶ 4. "BGP is an exterior gateway protocol that makes routing decisions between autonomous systems." Id. ¶ 5. "Azure Front Door and Azure CDN use Anycast so multiple servers within its system can share the same IP address." Id. ¶ 6. BGP is "an inter-domain routing protocol used to exchange routing and reachability information between different ASes" and "an exterior gateway protocol (EGP) that makes routing decisions between ASes." Id. ¶ 7 (quoting Opening Expert Report of Dr. Rubin ("Rubin Report," ECF No. 144-2) ¶ 83). "Each subsequent client requesting content from the Accused Products receives a different set of packets." Id. ¶ 12.
The Court acknowledges MediaPointe's position that initiating the BGP is not necessarily the only way to route clients to an edge server in the accused products. See id. Still, the evidence MediaPointe raises does not identify or explain how the accused products use something else.
B. The '195 Patent
The '195 Patent, entitled, "System and Method for Distribution of Data Packets Utilizing an Intelligent Distribution Network" claims priority to an Australian provisional patent application filed January 11, 2000. See generally, '195 Patent. It
teaches improved systems and methods for distributing streaming media content to a large numbers of diversely located clients. Id., Abstract. Specifically, it discloses an intelligent distribution network ("IDN") having a management center and one or more nodes. See id. at 3:25-36. The management center is a mapping engine that determines paths for requested content to follow on the network. Id. The nodes are points on the network that receive streams of data from content providers and then pass the data on to clients. Id. The management center evaluates potential routes between itself, the client, and the nodes, to determine the best route or routes to use to deliver requested content. Id. at 3:33-36. The potential routes provide relevant information such as travel time. See, id. at 6:16-33 (latency). Using this information, the management center then identifies the optimal route or routes for the content delivery task. See id. at 3:33-36.
MediaPointe alleges that Microsoft's AFD and Azure CDN products infringe claims 1, 3-4, and 6-8 of the '195 Patent. RSUF ¶ 1. Claim 1 of the '195 Patent is exemplary and discloses:
1. A method comprising:
a management center,
receiving an initial request for media content from a first client, the request being received by a management center;
directing the first client to a node that is selected to relay a content stream from a content provider to the first client by using a mapping engine that maps trace routes between the management center, the node, and the first client, the first client being directed to the node by the management center;
relaying the content stream from the content provider of the first client via the selected node;
replicating the content stream for other clients during the relaying of the content stream at the selected node, in response to subsequent requests for the media content from the other clients, the other clients connected to the selected node based on an identification that the selected node is already relaying the content stream form the content provider to the first client; and
transmitting the replicated content stream from the selected node to at least one other client in response to the subsequent requests for the media content.
'195 Patent, Claim 1 (emphasis added to show limitations at issue).
II. LEGAL STANDARDS
A. Motion for Summary Judgment
Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when, under the governing law, the resolution of that fact might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The burden of establishing the absence of a genuine issue of material fact lies with the moving party, see Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548, and the court must view the facts and draw reasonable inferences in the light most favorable to the nonmoving party, Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
To meet its burden, "[t]he moving party may produce evidence negating
an essential element of the nonmoving party's case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). Once the moving party satisfies its burden, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or "metaphysical doubt" about a material issue of fact precludes summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). There is no genuine issue for trial where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. Id. at 587, 106 S.Ct. 1348.
B. Infringement
Determining patent infringement is a two-step process. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995). The first step is to construe the claims; i.e., to determine the scope and meaning of what is allegedly infringed. Id. This step is a question of law. Id. at 970-71. The second step is to compare the properly construed claims to the accused product to determine whether each of the claim limitations is met, either literally or under the doctrine of equivalents. Id. at 976; CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1365 (Fed. Cir. 2002); Tex. Instruments Inc. v. U.S. Int'l Trade Comm'n, 988 F.2d 1165, 1173 (Fed. Cir. 1993) (although no literal infringement of a claim, an accused device may still infringe under the doctrine of equivalents.). This determination is a question of fact. Bai v. L & L Wings Inc., 160 F.3d 1350, 1353 (Fed. Cir. 1998); Schoell v. Regal Marine Indus., Inc., 247 F.3d 1202, 1207 (Fed. Cir. 2001).
Because the ultimate burden of proving infringement rests with the patentee, an accused infringer may establish that summary judgment is proper "either by providing evidence that would preclude a finding of infringement, or by showing that the evidence on file fails to establish a material issue of fact essential to the patentee's case." Novartis Corp. v. Ben Venue Labs., Inc., 271 F.3d 1043, 1046 (Fed. Cir. 2001). The absence of one claim element establishes non-infringement and makes immaterial whether there are issues of fact as to the absence or presence of other claim limitations. Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1535 (Fed. Cir. 1991). If the moving party meets this initial requirement, the burden shifts to the party asserting infringement to set forth, by declaration or as otherwise permitted under Fed. R. Civ. P. 56, "specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
C. Expert Testimony
Rule 702 governs the admissibility of expert testimony. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Fed. R. Evid. 702. Testimony must be "based upon sufficient facts or data" and be "the product of reliable principles and methods." Id. Further, the expert witness must have "applied the principles and methods reliably to the facts of the case." Id. The Supreme Court has imposed a "gatekeeping responsibility" for courts to engage in objective screening to ensure that evidence "is not only relevant, but reliable." Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141-42, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (clarifying the "gatekeeping" obligation "applies not only to testimony based on 'scientific knowledge,' but also to testimony based on 'technical' and 'other specialized' knowledge").
In Daubert, the Supreme Court outlined factors relevant to the reliability prong, including: (1) whether the theory can be and has been tested; (2) whether it has been subjected to peer review; (3) the known or potential rate of error; and (4) whether the theory or methodology employed is generally accepted in the relevant scientific community. 509 U.S. at 593-94, 113 S.Ct. 2786. The Supreme Court emphasized the "flexible" nature of this inquiry. Id. at 594, 113 S.Ct. 2786; see also Kumho, 526 U.S. at 141-42, 119 S.Ct. 1167 ("Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather the law grants a district court the same broad latitude when it decides how to determine reliability as [the court] enjoys in respect to its ultimate reliability determination.") Indeed, a "trial court has broad latitude not only in determining whether an expert's testimony is reliable, but also in deciding how to determine the testimony's reliability." Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011) (citing Kumho, 526 U.S. at 152, 119 S.Ct. 1167).
III. NONINFRINGEMENT DISCUSSION
A. Effect of Ruling on Motion to Strike
The Court granted Microsoft's Motion to Strike Unclosed Infringement Theories from Dr. Aviel Rubin's Opening Expert Report (ECF No. 142). MediaPointe therefore cannot rely on Dr. Rubin's testimony that Footprint serves as the claimed mapping engine or that reading data from an edge server's cache constitutes replicating. This leaves MediaPointe without any evidence to rebut Microsoft's summary judgment motion as to either the "directing" or "replicating" limitations. Due to this absence of evidence, the Court GRANTS Akamai's motion for summary judgment of noninfringement. Still, in an abundance of caution, the Court also considers the merits of MediaPointe's position as to several claim limitations.
B. The "based on an identification..." Limitation
i. The Parties' Positions
Microsoft argues MediaPointe fails to raise any evidence that the accused products meet this limitation. Memo at 12. Specifically, Microsoft argues that Dr. Rubin offers only a conclusory statement that the accused products meet this limitation, absent any explanation or corroborating evidence. Id. (citing Rubin Report ¶ 195). Microsoft contends this testimony is insufficient to preclude a noninfringement finding. Id. at 13.
MediaPointe argues that genuine issues of material fact preclude resolution because Dr. Rubin cited and relied upon technical documents and source code to form his opinion. Opp'n at 9. MediaPointe identifies ¶¶ 188-206 of the Rubin Report as citing relevant supporting evidence. Id. At a high level, Dr. Rubin opines that edge servers receiving requests for content check their caches, and, if the content is not in the cache, the edge servers then request the content from the origin server. Id. at 9-10.
Microsoft replies that MediaPointe's "cache checking" theory cannot be the identification because the accused products are already connected to the node before the edge server checks its cache. Reply at 2 (citing Rubin Report ¶ 175). Microsoft
further replies that "checking whether a node has cached content is not the same as determining whether the node is already relaying the content stream form the content provider to the first client." Id. Microsoft also argues that MediaPointe fails to identify the indication or explain how the accused products generate the indication. Id.
ii. Analysis
The full limitation at issue discloses "replicating the content stream for other clients during the relaying of the content stream at the selected node, in response to subsequent requests for the media content from the other clients, the other clients connected to the selected node based on an identification that the selected node is already relaying the content stream form the content provider to the first client." '195 Patent, Claim 1 (emphasis added to show disputed portion).
Paragraphs 188-200 of the Rubin Report purportedly raise a triable issue of fact as to whether the accused products meet the "based on an identification" element of the "replicating" limitation. Paragraph 188 restates the limitation at issue. Paragraph 189 identifies supporting evidence, "Azure Content Delivery Network (CDN)" (MS_MP000000412), and concludes that the accused products replicate streams of content sent to one client to respond to subrequests for the same content. Paragraph 190 discusses checking for the content and retrieving it, with reference to a "first request" flow diagram in the supporting evidence. Paragraph 191 opines that replication constitutes "reading chunks of [a] stream from [the edge server's] cache and relaying it to the subsequent client," and references a "next requests" flow diagram in the supporting evidence. Paragraph 192 states that public documents show how an edge server can fulfill requests. Paragraph 193 identifies an article ("Media streaming optimization with Azure CDN," https://learn.microsoft.com/enus/azure/cdn/cdn-media-streaming-optimization) purportedly disclosing streaming configurations in the accused products. Paragraph 194 describes the article and opines that, in the accused products, when requested content is not in the cache, the request is sent to the origin.
Upon review of the Rubin Report, it appears that only ¶¶ 188-200 pertain to the "replicating" limitation.
In ¶ 195, Dr. Rubin concludes, "when the edge server receives a subsequent request for that same stream of media content and checks its cache for the presence of that data, it responds to that request 'based on an identification' that it is already relaying that stream of content to the first client that requested it." In ¶ 196, Dr. Rubin opines that the accused products will replicate the content stream while relaying it at the selected node approximately 70% of the time.
Paragraphs 197-199 discuss source code. Regarding a particular function in the source code, Dr. Rubin opines, "[t]his method is essential for the edge server to know, when it has cached content from the origin server after being requested by a first client, where a particular block of content is located within the cache so it can retrieve it in order to respond to a second client's request for the same object." Rubin Report ¶ 199. Paragraph 200 concludes that the accused products infringe the "replicating" limitation.
Besides ¶ 195, none of the foregoing paragraphs expressly discuss identification. At most, the paragraphs describe a cache checking process with reference to supporting documentation. For the reasons discussed below, testimony and evidence
regarding the cache checking process is insufficient to raise a triable issue as to whether the accused products meet the "based on an identification" element of the "replicating" limitation.
First, the cache checking process cannot be the claimed identification based on Dr. Rubin's testimony and the plain words of the claim. Claim 1 discloses, "the other clients connected to the selected node based on an identification." '195 Patent, Claim 1. Dr. Rubin opined, "[w]hen a client issues a request for streaming content, after it has been connected to a particular edge server, that edge server will check its cache to see if the 'chunks' that make up that stream are already present at the edge." Rubin Report ¶ 175. In other words, the client is already connected to a node (edge server) before it issues its request for streaming content. The request triggers the cache checking process. Therefore, even if the cache checking process could be the identification, the timing does not comport with the claim language because, in the accused products, the connection is established before any request and cache checking; claim 1 requires a connection based on an identification.
Second, the cache checking process cannot be the identification because the claim language calls for "an identification that the selected node is already relaying the content stream." '195 Patent, claim 1. In other words, claim 1 requires identification of an active, present tense process. Dr. Rubin does testify that approximately 70% of the time, the accused products replicate the content stream during relay. See Rubin Report ¶ 196. However, that testimony appears to concern the initial element of the "replicating" limitation, "replicating the content stream for other clients during the relaying of the content stream at the selected node," as opposed to the later element, "the other clients connected to the selected node based on an identification." It is unclear how Dr. Rubin's testimony at ¶ 196 would meet both of these claim elements. Additionally, Dr. Rubin opines that a function in the source code of the accused product "is essential for the edge server to know, when it has cached content from the origin server after being requested by a first client, where a particular block of content is located within the cache so it can retrieve it in order to respond to a second client's request for the same object." Id. ¶ 199 (emphasis added). This testimony shows the edge server checks for content that has already been relayed, i.e., in the past, but does not establish that the edge server checks for content in active relay, as the claim requires. Therefore, Dr. Rubin's testimony does not establish that the cache checking process meets the limitation.
For both of these reasons, there is no triable issue of fact as to whether the cache checking process can be the identification; based on both the record and the plain language of the claim, it cannot. Moreover, Dr. Rubin does not actually opine that the cache checking process is the identification. His testimony in ¶ 195, alone, is not sufficient to raise a triable issue of fact. There, Dr. Rubin merely repeats the claim language but does not further analyze how the accused products perform the identification or identify relevant supporting evidence. The connection between the cache checking process and the identification comes from attorney argument, which, alone, cannot raise a triable issue of fact. See Icon Health and Fitness, Inc. v. Strava, Inc., UA, 849 F.3d 1034, 1043 (Fed. Cir. 2017). Because the cache checking process cannot be the identification, an absence of evidence regarding whether the accused products otherwise meet the limitation warrants granting Microsoft's motion. For the foregoing reasons, ¶¶ 188-200 of the Rubin Report are insufficient to raise an issue of triable fact as to whether the accused products meet the "based on an identification" limitation. "[I]n order for a court to find infringement, the [party asserting infringement] must show the presence of every element or its substantial equivalent in the accused device." Lemelson v. United States, 752 F.2d 1538, 1551 (Fed. Cir. 1985). Thus, failure to adduce sufficient evidence of infringement of all elements — here, "based on an identification" — is dispositive of the infringement issue.
C. The "directing" Limitation
i. The Parties' Positions
Microsoft argues MediaPointe cannot raise a triable issue of fact as to whether the accused products meet the "directing" limitation. First, Microsoft argues that the AFD or Azure CDN, which Dr. Rubin identifies as the "management center," does not direct the first client to the edge server, which Dr. Rubin identifies as the node. Memo at 13-14. Rather, Microsoft contends an external function, BGP, performs the directing. Id. at 14 (citing Rebuttal Report of Dr. Long ("Long Rebuttal," ECF No. 144-3) ¶ 31; Rubin Report ¶ 170). Microsoft argues that AFD and Azure CDN do not make routing decisions. Id. at 15 (citing Declaration of Gangadhar Ball ("Balla Decl.," ECF No. 145-10) ¶¶ 2-4; Deposition of Gangadhar Balla ("Balla Dep.," ECF No. 145-11) at 27:18-28:16; Deposition of Benjamin Stroud ("Stroud Dep.," ECF No. 145-6) at 31:7-11 and 33:6-36:7). Second, Microsoft argues that Footprint cannot be the "mapping engine" because no evidence shows that AFD or Azure CDN use Footprint or its data. Id. at 15. Microsoft cites evidence showing that an offline database stores Footprint measurements for unrelated applications. Id. at 15-16 (citing Balla Decl. ¶ 5; Long Rebuttal ¶¶ 46, 48, 107; Rubin Report ¶ 169).
MediaPointe argues that providing an Anycast IP address in response to a request for content is sufficient to meet the "directing" limitation. Opp'n at 10. MediaPointe argues that Anycast could provide an IP address referencing multiple servers but that it still, broadly, directs a client to a node. Id. at 11. MediaPointe alternatively argues that in instances of poor Anycast performance, the accused products meet the "directing" limitation using a hybrid scheme involving Footprint measurements. Id. at 11-12 (citing Deposition of Aviel Rubin ("Rubin Dep.," ECF No. 175:3) at 137:19-138:5 and a Microsoft paper describing Odin (Footprint), ECF No. 176-10 at §§ 7.1.2 and 8.1.2). MediaPointe argue that Azure Front Door both hosts and uses Footprint. Id. at 12 (citing ECF No. 144 at MS_MP000019353; ECF No. 175-4 at S_MP000027325).
Microsoft replies that the Anycast protocol merely announces IP addresses as input for BGP but does not itself provide clients an IP address. Reply at 3. Microsoft further argues that Anycast enables connection to servers having the same IP address, so it does not provide any true direction. Id. at 4. As to Footprint, Microsoft argues that the evidence MediaPointe cites does not present a fact issue because none of the articles Dr. Rubin relies upon actually relate to the accused products. Id. at 4-5.
ii. Analysis
The full limitation at issue discloses "directing the first client to a node that is selected to relay a content stream from a content provider to the first client by using a mapping engine that maps trace routes between the management center, the node, and the first client, the first client being directed to the node by the management center." '195 Patent, Claim 1. 1. The "management center" element
Microsoft's technical expert, Dr. Long, opines that BGP, not Anycast, routes client requests to edge servers. Long Rebuttal ¶ 31. He explains that "BGP is outside the control of the accused products" and "is responsible for routing traffic between autonomous system." Id. ¶ 32. He further opines that "Anycast is an Internet standard protocol" that allows "multiple servers within [Microsoft's] system, often separated by geography ... [to] share the same IP address." Id. ¶ 33. Similarly, Dr. Rubin opines, "Azure Front Door decides which of the available edge servers will be assigned the Anycast IP used by BGP to connect the client to the node." Rubin Report ¶ 170.
MediaPointe does not cite any evidence either (1) establishing that Anycast, directs client requests or (2) rebutting Microsoft's evidence that BGP is outside the control of the accused products. Rather, the evidence MediaPointe cites merely confirms that Anycast generates an IP address which could refer to multiple servers. See Rubin Report ¶ 126. Claim 1 requires that the management center direct the first client to the node. The fact that Anycast generates an IP address, without more, does not show that it directs a client to a node (edge server). Accordingly, the evidence presented is insufficient to raise a triable issue of fact as to this limitation.
Again, failure to adduce sufficient evidence of infringement of all elements — here, the "management center" limitation — is dispositive of the infringement issue. See Lemelson, 752 F.2d at 1551.
2. The "mapping engine" element
Given the two dispositive noninfringement findings above, the Court declines to resolve the parties' dispute concerning whether MediaPointe's evidence raises a fact issue as to whether the accused products use Footprint to meet the "mapping engine" limitation. Moreover, as discussed in the order granting Microsoft's Motion to Strike, MediaPointe failed to timely disclose Footprint in its Final Infringement Contentions. Accordingly, even if the evidence MediaPointe cites could raise a fact issue, MediaPointe may not advance the Footprint theory.
D. The "Replicating" Limitation
Again, given the two dispositive noninfringement findings above, the Court declines to resolve the parties' dispute concerning the "replicating" limitation. As discussed in the order granting Microsoft's Motion to Strike, MediaPointe failed to timely disclose its theory that replication occurs by "reading the chunks of [a] stream from [the edge server's] cache and then relaying it to the subsequent client" in its Final Infringement Contentions. Rubin Report ¶ 191. Accordingly, even if the evidence MediaPointe cites could raise a fact issue, MediaPointe may not advance its present infringement theory as to the replication limitation.
IV. DAUBERT MOTIONS AND MOTION TO STRIKE
A. MediaPointe's Motion to Exclude Testimony of Microsoft's Experts Ms. Julia Rowe and Dr. Darrell Long (ECF No. 146)
Ms. Rowe's challenged testimony concerns valuations of the technology claimed in the '195 Patent. Dr. Long's challenged testimony concerns non-infringing alternatives. Because this testimony relates solely to patent damages and because the Court grants Microsoft's Motion for Summary Judgment of Non-infringement, MediaPointe's Motion is MOOT as to both Ms. Rowe and Dr. Long's testimony. B. Microsoft's Motion to Strike Identification and Testimony of Joseph Hayes (ECF No. 161)
Mr. Hayes is one of the named inventors of the '195 Patent. Microsoft challenges MediaPointe's disclosure of Mr. Hayes and Mr. Hayes' involvement in this action as untimely. Microsoft also argues that Mr. Hayes' testimony concerning conception, reduction to practice, and inventorship, benefits of the claimed invention and secondary indicia of non-obviousness, as well as the priority date of the '195 Patent contradict MediaPointe's discovery responses. None of Mr. Haye's testimony relates to Microsoft's Motion for Summary Judgment of Noninfringement. Given the Court's non-infringement finding in this action, Microsoft's Motion to Strike Mr. Hayes is MOOT.
C. Microsoft's Motion to Exclude Damages Related Opinions of Mr. Robert Mills and Dr. Aviel Rubin (ECF No. 162)
Mr. Mills and Dr. Rubin's challenged testimony relates entirely to patent damages. Therefore, as discussed above with respect to Ms. Rowe and Dr. Long, the Motion is MOOT in view of the Court's noninfringement finding.
V. CONCLUSION
For the reasons stated above, the Court GRANTS Microsoft's Motion for Summary Judgment of Noninfringement. The remaining Daubert motions and motion to strike are MOOT in view of the noninfringement finding.
IT IS SO ORDERED.