Summary Judgment of Noninfringement Mostly Granted

DeepNines, Inc v. McAfee, Inc (9-06-cv-00174) (6/18/08)
Judge: Ron Clark
Holding: Defendant's Motion for Summary Judgment GRANTED in part.
Judge Clark granted the defendant's post-Markman ruling motion for summary judgment of noninfringement with respect to three of the four products asserted, and one of the three claims asserted as to the fourth. Fact issues remained as to two of the claims on the fourth product, however.  Of note, Judge Clark held that any claims of indirect infringement were precluded as well, since no theories of inducing or contributory were contained in the plaintiff's complaint or in its infringement contentions.  That its expert opined on indirect infringement less than two months before trial was not enough to save any such claims.
Judge Clark's opinion contains a good discussion of prosecution history estoppel (which caused the plaintiff problems with any claim of infringement under the doctrine of equivalents) and a "cleanup" claims construction in light of the Supreme Court's O2  Micro v. Beyond Innovation Tech., under which he wrote "the court is apparently required to supplement its claim construction whenever an issue arguably related to claim scope arises."