Infernal Technology, LLC v. Activision Blizzard Inc.

• Court: Court of Appeals for the Federal Circuit
• Decided: January 24, 2023
• Docket: 21-2349
• Status: Unpublished

Opinion

Case: 21-2349 Document: 84 Page: 1 Filed: 01/24/2023

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

INFERNAL TECHNOLOGY, LLC, TERMINAL REALITY, INC., Plaintiffs-Appellants

v.

ACTIVISION BLIZZARD INC., Defendant-Appellee ______________________

2021-2349 ______________________

Appeal from the United States District Court for the Northern District of Texas in No. 3:18-cv-01397-M, Chief Judge Barbara M.G. Lynn. ______________________

Decided: January 24, 2023 ______________________

ERIC WILLIAM BUETHER, Buether Joe & Counselors, LLC, Dallas, TX, argued for plaintiffs-appellants. Also rep- resented by CHRISTOPHER MICHAEL JOE, KENNETH PAUL KULA.

JOHN D. GARRETSON, Shook, Hardy & Bacon, LLP, Kan- sas City, MO, argued for defendant-appellee. Also repre- sented by LAUREN ELIZABETH DOUVILLE, BASIL TRENT WEBB; SHARON A. ISRAEL, DAVID MOREHAN, Houston, TX. Case: 21-2349 Document: 84 Page: 2 Filed: 01/24/2023

______________________

Before MOORE, Chief Judge, CHEN and STOLL, Circuit Judges. CHEN, Circuit Judge. Appellants Infernal Technology, LLC and Terminal Re- ality, Inc. (collectively, Infernal) sued Defendant-Appellee Activision Blizzard Inc. (Activision) for infringement of two patents related to rendering light and shadow in computer graphics. After the district court issued a claim construc- tion order adopting the parties’ agreed-upon construction of the term “observer data,” the district court granted Ac- tivision’s summary-judgment motion of noninfringement. Because the district court properly analyzed the limitation “said observer data” in view of its construction of “observer data” to find that Infernal failed to raise a genuine issue of material fact as to infringement, we affirm. BACKGROUND I United States Patent Nos. 6,362,822 (’822 patent) and 7,061,488 (’488 patent) are in the same family and share a specification. Both are entitled “Lighting and Shadowing Methods and Arrangements for Use in Computer Graphic Simulations” and are related to methods of improving how light and shadow are displayed in computer graphics. Claim 1 of the ’822 patent recites: 1. A shadow rendering method for use in a com- puter system, the method comprising the steps of: [1(a)] providing observer data of a simu- lated multi-dimensional scene; [1(b)] providing lighting data associated with a plurality of simulated light sources arranged to illuminate said scene, said lighting data including light image data; Case: 21-2349 Document: 84 Page: 3 Filed: 01/24/2023

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[1(c)] for each of said plurality of light sources, comparing at least a portion of said observer data with at least a portion of said lighting data to determine if a modeled point within said scene is illuminated by said light source and storing at least a por- tion of said light image data associated with said point and said light source in a light accumulation buffer; and then [1(d)] combining at least a portion of said light accumulation buffer with said ob- server data; and [1(e)] displaying resulting image data to a computer screen. ’822 patent col. 12 ll. 4–20 (emphases added). The itali- cized phrases are the focus of this appeal. 1 II Infernal sued Activision in the Northern District of Texas, alleging that nineteen Activision video games (Ac- cused Games) infringe one or more of claim 1 of the ’822 patent and claims 1 and 27 of the ’488 patent (collectively, Asserted Claims). Infernal Tech. LLC v. Activision Bliz- zard Inc., No. 3:18-cv-01397-M, 2021 WL 4391250, at *1, *3 (N.D. Tex. Sept. 16, 2021).

1 The district court explained that its analysis of steps 1(a), 1(c), and 1(d) in claim 1 of the ’822 patent applies equally to all asserted claims because each asserted claim contains these same claim limitations. Infernal Tech. LLC v. Activision Blizzard Inc., No. 3:18-cv-01397-M, 2021 WL 4391250, at *3 n.2 (N.D. Tex. Sept. 16, 2021). Infernal’s analysis does the same. Appellants’ Br. 18. Thus, our anal- ysis of these steps in claim 1 of the ’822 patent applies equally across the asserted claims. Case: 21-2349 Document: 84 Page: 4 Filed: 01/24/2023

Before the district court, the parties agreed the term “observer data” means “data representing at least the color of objects in a simulated multi-dimensional scene as viewed from an observer’s perspective,” and the district court adopted this construction. Infernal Tech., LLC v. Ac- tivision Blizzard Inc., No. 3:18-cv-1397-M, 2019 WL 4247227, at *5, *18 (N.D. Tex. Sept. 6, 2019). Based on the plain and ordinary meaning of the limitation “said observer data” in step 1(d), which incorporates the district court’s construction of “observer data,” Activision moved for sum- mary judgment of noninfringement. Infernal, 2021 WL 4391250 at *1, *3–8. The district court granted summary judgment of noninfringement on this basis. Id. at *8. Infernal timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(1). DISCUSSION “We review claim construction based on intrinsic evi- dence de novo and review any findings of fact regarding ex- trinsic evidence for clear error.” SpeedTrack, Inc. v. Amazon.com, Inc., 998 F.3d 1373, 1378 (Fed. Cir. 2021) (ci- tation omitted). “[W]e review a district court’s summary judgment ruling under the law of the regional circuit.” In- tell. Ventures I LLC v. Cap. One Fin. Corp., 850 F.3d 1332, 1337 (Fed. Cir. 2017) (citation omitted). The Fifth Circuit “review[s] a grant of summary judgment de novo, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor.” Pierce v. Dep’t of U.S. Air Force, 512 F.3d 184, 186 (5th Cir. 2007) (citation omitted). Summary judgment is proper “if the movant shows that there is no genuine dis- pute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Infernal argues that the district court erred in granting summary judgement of noninfringement by (1) misapply- ing its own construction of “observer data,” Appellants’ Br. 18–28; and (2) finding that the Accused Games cannot Case: 21-2349 Document: 84 Page: 5 Filed: 01/24/2023

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perform the claimed steps in the specified sequence, id. at 28–39. We hold that the district court properly analyzed the limitation “said observer data” in view of its construc- tion of “observer data” to find that Appellants failed to raise a genuine issue of material fact as to infringement. 2 We first address the court’s analysis of the “observer data” term, followed by the lack of any material factual disputes regarding noninfringement. I Although the parties agree on the construction of “ob- server data,” the parties dispute whether the term “ob- server data” can refer to different data sets in steps 1(a), 1(c), and 1(d) in which each different data set mapped to a given step, when considered in isolation of the other relied- upon data sets, meets the “observer data” construction. See Appellants’ Br. 18–22; Appellants’ Reply Br. 1–11. It can- not. The term “observer data” appears in three steps in claim 1 of the ’822 patent: (1) “providing observer data” in step 1(a); (2) “comparing at least a portion of said observer data” in step 1(c); and (3) “combining . . . with said observer data” in step 1(d). ’822 patent col. 12 ll. 6–19. The parties do not dispute the long-standing principle that “[i]n gram- matical terms, the instances of [‘said’] in the claim are an- aphoric phrases, referring to the initial antecedent phrase.” Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1342 (Fed. Cir. 2008); see Appellants’ Br. 23, 32– 33; Appellee’s Br. 30–31. Under this principle, the term “said observer data” recited in steps 1(c) and 1(d) must

2 Our decision on this argument resolves the parties’ dispute as to noninfringement and renders moot Infernal’s separate argument that the district court erroneously ex- cluded Plaintiffs’ damages expert report. Appellants’ Br. 39–58. Case: 21-2349 Document: 84 Page: 6 Filed: 01/24/2023

refer back to the “observer data” recited in step 1(a)—i.e., the “observer data” in step 1(a) is the same “observer data” in steps 1(c) and 1(d). This conclusion holds even though the district court’s construction of “observer data” is open- ended such that it encompasses “at least color data” as well as other types of data. See Baldwin, 512 F.3d at 1342 (“The subsequent use of definite articles ‘the’ or ‘said’ in a claim to refer back to the same claim term does not change the general plural rule [of ‘an’], but simply reinvokes that non- singular meaning.”). Although the initial “observer data” in step 1(a) includes data that is “at least color data,” the use of the word “said” indicates that each subsequent in- stance of “said observer data” must refer back to the same “observer data” initially referred to in step 1(a). An open- ended construction of “observer data” (“data representing at least the color of objects”) does not permit each instance of “observer data” in a claim to refer to an independent set of data. Thus, the term “observer data” cannot refer to dif- ferent data among steps 1(a), 1(c), and 1(d). 3

3 Our construction of “said observer data” is con- sistent with other decisions by this court concluding that use of the word “said” or “the” refers back to the initial lim- itation, even when the initial limitation refers to one or more elements. See, e.g., Process Control Corp. v. HydRe- claim Corp., 190 F.3d 1350, 1356 (Fed. Cir. 1999) (“It is clear from the language of the claim itself that the term ‘a discharge rate’ in clause [b] is referring to the same rate as the term ‘the discharge rate’ in clause [d].” (emphasis added)); Creative Internet Advert. Corp. v. Yahoo!, Inc., 476 F. App’x 724, 725–26, 728–29 (Fed. Cir. 2011) (holding that “said end user communication message” required an in- fringing system to operate on “the same message or mes- sages” recited in prior limitation, even though antecedent phrase was “broad enough to cover multiple messages,” Case: 21-2349 Document: 84 Page: 7 Filed: 01/24/2023

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Infernal argues that “said observer data” in step 1(d) can refer to a narrower set of data than “observer data” in step 1(a) because both independently meet the district court’s construction of “observer data.” Appellants’ Br. 22; Appellants’ Reply Br. 2–3. That argument misunderstands basic claim construction law, as explained above. In addi- tion, step 1(c) recites “at least a portion of said observer data,” indicating that the patentee knew how to draft a lim- itation that refers to a subset of the “observer data.” That the patentee did not claim a subset of “observer data” in step 1(d) indicates that the patentee intended to refer to the same “observer data” in steps 1(a) and 1(d). See Rexnord Corp. v. Laitram Corp., 274 F.3d 1336, 1342 (Fed. Cir. 2001) (“[A] claim term should be construed con- sistently with its appearance in other places in the same claim or in other claims of the same patent.” (citations omitted)). Infernal disagrees, arguing that the presence of “at least a portion of” in step 1(c) does not indicate that the “observer data” in step 1(d) refers to all the “observer data” from step 1(a) because such a construction ignores the dis- trict court’s open-ended construction of “observer data.” Appellants’ Br. 24–26; Appellants’ Reply Br. 10. Infernal’s argument, however, would render the limitations “at least a portion of” in step 1(c) and “said” in step 1(d) superfluous. Bicon, Inc. v. Straumann Co., 441 F.3d 945, 962–64 (Fed. Cir. 2006) (“[C]laims are interpreted with an eye toward giving effect to all terms in the claim.” (citations omitted)). We decline to apply such an interpretation. II Having determined that “said observer data” in step 1(d) must refer to the same “observer data” in step 1(a), we

because a system operating on different messages “would render the word ‘said’ a nullity”). Case: 21-2349 Document: 84 Page: 8 Filed: 01/24/2023

agree with the district court that Infernal failed to raise a genuine issue of material fact as to the Accused Games per- forming the limitation “combining . . . with said observer data” in step 1(d). As shown below, Infernal’s infringement theory maps different sets of data from the Accused Games to the term “observer data” throughout the claim:

Appellants’ Reply Br. 9; see also Appellee’s Br. 12–13. For step 1(a), Infernal identifies “observer data” as albedo (color data), normal vector, position, diffuse, depth, and other observer data. However, for step 1(d), Infernal iden- tifies “said observer data” only as albedo (color data). Case: 21-2349 Document: 84 Page: 9 Filed: 01/24/2023

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Because it is undisputed that the mapping of the Accused Games’s “observer data” in step 1(a) is different than the mapping of the “observer data” in step 1(d), we agree with the district court that there is no genuine issue of material fact as to whether the Accused Games infringe the “com- bining . . . with said observer data” limitation in step 1(d). Moreover, Infernal’s infringement mapping with re- spect to step 1(d) improperly excludes data that is mapped to “a portion of said observer data” in step 1(c). For step 1(c), Infernal identifies “a portion of said observer data” as normal vector and position data (shown in the above-fig- ure). So based on its mapping for step 1(c), Infernal’s in- fringement theory requires “observer data” to—at minimum—include normal vector, position, and albedo (color data). Thus, for example, an internally consistent infringement theory would map: (1) “observer data” in step 1(a) to normal vector, position, and albedo (color data); (2) “a portion of said observer data” in step 1(c) to normal vector and position data; and (3) “said observer data” in step 1(d) to normal vector, position, and albedo (color data). By only relying on albedo data to meet “said observer data” in step 1(d), Infernal improperly excludes data that was necessary for Infernal’s infringement mapping for “a por- tion of said observer data” in step 1(c). Because Infernal fails to show a genuine issue of mate- rial fact as to whether the Accused Games infringe the “combining . . . with said observer data” limitation in step 1(d), we uphold the district court’s grant of summary judgment. CONCLUSION We have considered Infernal’s remaining arguments and find them unpersuasive. For the foregoing reasons, we affirm the district court’s grant of summary judgment of noninfringement. AFFIRMED