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Spherix Inc. v. Verizon Servs. Corp.

United States District Court, E.D. Virginia, Alexandria Division

July 1, 2015


For Spherix Incorporated, Plaintiff: Erik Craig Kane, LEAD ATTORNEY, Kenyon & Kenyon, Washington, DC; James W. Hundley, Kristin Anne Martin Zech, Nicholas Valdis Cumings, BrigliaHundley PC (Tysons), Tysons Corner, VA.

For Verizon Services Corp., Verizon South Inc., Verizon Virginia LLC., Verizon Communications Inc., Verizon Federal Inc., Verizon Business Network Services Inc., MCI Communications Services, Inc., Defendants: Charles Brandon Rash, Finnegan Henderson Farabow Garrett & Dunner LLP (DC), Washington, DC.

For Arris Group, Inc., Interested Party: Taylor Thomas Lankford, King & Spalding (DC), Washington, DC.

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Gerald Bruce Lee, United States District Judge.

This matter is before the Court on Plaintiff Spherix's Corrected Combined Motion and Memorandum in Support of its Motion for Partial Summary Judgment and Proposed Claim Constructions (Doc. 231) and Defendants Verizon's Motion for Summary Judgment, Motion for Summary Adjudication, and Entry of Proposed Claim Constructions (Doc. 204). This case concerns Defendants Verizon Services Corp., Verizon South Inc., Verizon Virginia LLC, Verizon Communications Inc., Verizon Federal Inc., Verizon Business Network Services Inc., and MCI Communications Services, Inc. (collectively, " Verizon" )'s alleged infringement of U.S. Patent Number 6,980,564 (" the '564 patent" ) owned by Plaintiff Spherix Incorporated (" Spherix" ). The patent relates generally to " data transmission networks and more particularly, the invention relates to data communication equipment [(" DCE" )] for use by data termination equipment." U.S. Patent No. 6,980,564 col. 1, ll. 15-18 (filed June 19, 2001). The invention was intended to reduce duplication and inefficiency in the network services industry by eliminating the need to produce a variety of different DCE's for each network/medium type. Id. col. 1-2, ll. 1-10, 66-67.

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There are two issues before the Court. The first issue is whether the Court should grant Defendants' Motion for summary judgment on invalidity, non-infringement, or anticipation grounds. The second issue is whether the Court should grant Plaintiff's motion for partial summary judgment where Plaintiff asserts that Verizon's MoCA capable ONTs and other accused products directly infringe the '564 patent.

The Court GRANTS Defendants' Motion for Summary Judgment because independent Claim 1 is invalid for indefiniteness, and accordingly, the asserted dependent claims are also invalid. The Court also GRANTS Defendants' Motion for Summary Judgment on non-infringement because Verizon's accused products, in light of the Court's Claim Construction/ Markman Order, do not directly infringe the '564 patent. The Court does not find reason to reach Defendants' anticipation argument or laches, licensing, or failure-to-mark defenses. In view of the Court's findings on indefiniteness and non-infringement, the Court DENIES Plaintiff's Motion for Partial Summary Judgment of infringement.


The following is taken fro the Parties' undisputed facts (Docs. 205 and 218). In 1995, Nortel Networks Corp. (" Nortel" ) and Antec Corp. (" Antec" ) formed a joint venture named ARRIS. ARRIS's flagship product was a Network Interface Unit (" NIU" ) for cable networks. In 2000, Oscar Rodriguez, a Nortel Employee assigned to work at ARRIS, conceived of a modular network-specific NIU that could communicate with a modular service-specific service delivery unit (" SDU" ) over a common interface that used a signal format understood by both the NIU and SDU. Later that year, David Berman, another Nortel employee assigned to ARRIS, drafted an invention disclosure statement based on Mr. Rodriguez's concept. On June 19, 2001, Nortel filed a patent application based on the invention disclosure. The application eventually issued as U.S. Patent No. 6,980,564. The inventors of the '564 patent were Mr. Rodriguez, Mr. Berman, and Jim Lakin, an ARRIS employee. In the latter part of 2000, Nortel sold its interest in the ARRIS joint venture to Antec, but retained a significant interest in ARRIS going forward. In 2009, Nortel filed for bankruptcy which led ultimately to Spherix's acquisition of the '564 patent.

There is one independent claim at issue, namely Claim 1 of the '564 patent, and seven dependent claims, Claims 2-3 and 5-9. Claim 1 provides for:

1. A network interface unit comprising:
an interface for connecting a service delivery unit to a given medium, wherein the service delivery unit is any one type in a family of different types of service delivery units, each type of service delivery unit in the family providing a network service that is different than the network service provided by the other types of service delivery units in the family, the service delivery unit processing messages received in a first format;
a medium module configured to process data for transmission between the given medium and the service delivery unit, the medium module transmitting messages toward the service delivery unit in a second format; and
an interface module configured to receive messages transmitted between the medium module and the service delivery unit, the interface module being configured to translate messages from the second format to the first format.

'564 Patent col. 9, ll. 6-25. Plaintiff and Defendants have each filed their respective Motions for Summary Judgment (Docs. 205 and 218), their respective oppositions

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to those motions (Docs. 243 and 250), and their respective replies in further support of those motions (Docs. 312 and 318). Plaintiff's and Defendants' motions are now properly before the Court.


Pursuant to Federal Rule of Civil Procedure 56, the Court must grant summary judgment if the moving party demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

In reviewing a motion for summary judgment, the Court views the facts in the light most favorable to the nonmoving party. Boitnott v. Corning, Inc., 669 F.3d 172, 175 (4th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (citations omitted). " [T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008) (quoting Anderson, 477 U.S. at 247-8).

A " material fact" is a fact that might affect the outcome of a party's case. Anderson, 477 U.S. at 248; JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). Whether a fact is considered " material" is determined by the substantive law, and " [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248; Hooven--Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001).

A " genuine" issue concerning a " material" fact arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. Resource Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Rule 56(e) requires the nonmoving party to go beyond the pleadings and by its own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Pursuant to 35 U.S.C. § 112 ¶ 2, " [t]he [patent] specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention." " A lack of definiteness renders invalid 'the patent or any claim in suit.'" Nautilus, Inc. v. Biosig Instruments, Inc., 134 S.Ct. 2120, 2125, 189 L.Ed.2d 37 (2014)(citing 35 U.S.C. § 282, ¶ 2(3)). A claim fails to satisfy this statutory requirement and is thus invalid for indefiniteness if its language, when read in light of the specification and the prosecution history, " fail[s] to inform, with reasonable certainty, those skilled in the art about the scope of the invention." Id. at 2124 (emphasis added). Although absolute or mathematical precision is not required, it is not enough, ...

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