United States District Court, E.D. Virginia, Alexandria Division
For N5 Technologies LLC, Plaintiff: Craig Crandall Reilly, LEAD ATTORNEY, Law Office of Craig C. Reilly, Alexandria, VA; Derek J Jardieu, LEAD ATTORNEY, Panovia Group LLP, Washington, DC; James A Fussell, III, Spangler & Fussell PC, Alexandria, VA; Andrew W. Spangler, Spangler & Fussell P.C., Longview, TX.
For Capital One Bank (USA) National Association, Capital One Services LLC, Defendants: Brian Mark Buroker, LEAD ATTORNEY, Gibson Dunn & Crutcher LLP, Washington, DC; Allan M. Soobert, Paul Hastings LLP (DC), Washington, DC; Sarah Jennifer Sladic, Gibson Dunn & Crutcher LLP (DC), Washington, DC.
For Capital One N.A., Defendant: Allan M. Soobert, Paul Hastings LLP (DC), Washington, DC; Brian Mark Buroker, Gibson Dunn & Crutcher LLP, Washington, DC; Sarah Jennifer Sladic, Gibson Dunn & Crutcher LLP (DC), Washington, DC.
T. S. Ellis, III, United States District Judge.
In this patent infringement case, N5 Technologies LLC (" N5" ), the owner of U.S. Patent No. 7,197,297 (" the '297 patent" ), sues defendants Capital One Bank (USA) N.A., Capital One Services LLC, and Capital One N.A. (collectively " defendants" ) for direct infringement and for inducing infringement of the '297 patent, which purports to cover a specific method of authenticating mobile station users to access private data via sending text messages to a private server. An Order issued on August 16, 2013 setting forth the relevant Markman  claim construction determinations. N5 Technologies v. Capital One, 1:13-cv-386 (E.D. Va., Aug. 16, 2013) (Order) (hereinafter " Markman Order" ). Thereafter, defendants filed a motion for summary judgment.
For the reasons that follow, defendant is entitled to summary judgment because: (i) the accused method does not perform the Claim 1 authenticity checking steps in the order recited in the patent, as required by the Markman Order, and (ii) plaintiff has not offered admissible evidence sufficient to create a triable issue of fact on the issue of infringement under the doctrine of equivalents.
Plaintiff N5, a Virginia limited liability company with its principal place of business in Manassas, Virginia, is the sole owner of the '297 patent, issued in 2007, titled " Authentication Method for Enabling a User of a Mobile Station to Access to Private Data or Services." N5, in the
current vernacular, is a " non-practicing entity" claiming, without opposition, to own all right, title, and interest in the '297 patent.
Defendants Capital One, N.A. and Capital One Bank (USA), N.A. are federally-chartered banking institutions with their principal places of business in McLean, Virginia. Defendant Capital One Services, LLC is a Delaware corporation with its principal place of business in McLean, Virginia. Capital One, N.A., Capital One Bank (USA), N.A., and Capital One Services, LLC are sued collectively for infringement and are referred to herein collectively as " defendants."
The '297 patent, which consists of 18 claims, recites a method for authenticating the user of a mobile station, i.e. a cell phone, to allow that user to access private information stored on a private server by sending a text message request from the user's mobile station. Plaintiff alleges that defendants' mobile banking service infringes on the claimed method of the '297 patent. Defendants' mobile banking service allows customers to access account information, such as their balance or the last transaction posted to their account, by sending a text message from an authenticated mobile station.
On October 25, 2012, plaintiff filed a complaint in the United States District Court for the Eastern District of Texas, alleging that defendants' mobile banking services infringe independent Claim 1, and dependent claims 2, 3, 4, 6, 8, 9, and 10 of the '297 patent. On March 25, 2013, the case was transferred to this district.
The sole independent claim in the '297 patent is Claim 1, and as such, there can be no infringement of any dependent claim unless Claim 1 is also infringed. Accordingly, the parties' sole focus on summary judgment is appropriately on Claim 1.
Claim 1 " provides a method for accessing private data or services over a public network including the step of authenticating a user of a mobile station  for accessing to private data/services." '297 Patent, Col. 1, 11. 45-48. Claim 1--with limitations pertinent to summary judgment in bold--reads as follows.
1. Method for accessing private data or services from a mobile station over a public network including the step of authenticating a user of the mobile station for accessing to private data/services, comprising the steps of:
composing a text-based request message on the mobile station using a standard public messaging protocol, said message including a request for private data, and sending said request message to a private server (MG, PS) offering the access to said private data/services, via telephone network,
checking the authenticity of the user of the mobile station based on the request message received by the server,
if the authenticity of the user of the mobile station is confirmed, composing a text-based response message using a standard public text messaging protocol, the response message including the requested private data/services of the private server, and sending back to the mobile station said text-based response message, via the telephone network,
wherein the request message additionally includes a user unique identifier, and
is received by the private server with an appended user mobile station number,
wherein the authenticity checking performed by the private server comprises the steps of:
checking whether the user unique identifier is stored in a private directory database, and
checking whether the appended user mobile station number matches with the user mobile station number allocated to the user unique identifier stored in the private directory database;
and wherein, if the user authenticity is confirmed, an interaction between the private server and the mobile station is limited to the exchange of the text-based request message and the text-based response; and repeating the recited steps for any further interaction between the private server and the mobile station.
The August 16, 2013 Markman Order set forth the following claim term definitions, all concerning limitations in Claim 1:
o Term 1: " user unique identifier."
Definition: " data that uniquely identifies a mobile station user."