Commercial Litigation and Arbitration

Experts/Daubert — Survey Results in Patent Infringement Case Must Be Adequately Tied to Claims — Questions Worded Broadly Enough to Capture Both Infringing and Non-Infringing Uses Not Helpful to Trier of Fact


 Parallel Networks Licensing v. Microsoft Corp., 2019 U.S. App. LEXIS 19442 (Fed. Cir. June 28, 2019):

This is a patent case involving web pages. Parallel Net-works Licensing, LLC sued Microsoft Corporation in the United States District Court for the District of Delaware, asserting direct and indirect infringement of claims of U.S. Patent Nos. 5,894,554 and 6,415,335. The district court granted Microsoft's motion for summary judgment of no in-direct infringement; at trial the jury found no direct infringement by Microsoft. Parallel appeals, contending that the district [*2]  court erred in (1) granting Microsoft's motion to exclude Parallel's customer-use survey under Rule 702 of the Federal Rules of Evidence; (2) granting Microsoft's motion for summary judgment of no indirect infringement; and (3) denying Parallel's post-verdict motion for judgment of direct infringement as a matter of law. We have juris-diction under 28 U.S.C. § 1295(a)(1). Because we find no reversible error in the district court's orders, we affirm.


The '554 and '335 patents disclose systems and methods for efficiently managing dynamic web page requests from a web client.1 '554 patent col. 2 ll. 15− 31. When a web client requests a dynamic web page,2 the server must generate the content on-the-fly from one or more data sources. Id. col. 1 ll. 46−55. According to the patents, conventional web server environments were not equipped to process multiple dynamic web page requests simultaneously. Id. col. 2 ll. 1−12, col. 4 ll. 32 −53. Prior art systems [*3]  traditionally processed all requests on a single web server machine, which could "slow down significantly and become highly inefficient" when processing multiple requests at the same time. Id. col. 4 ll. 48−51.

Footnote 1.  The '544 and '355 patents share the same specifica-tion. Citations to the shared specification refer to the '544 patent unless otherwise noted.

Footnote 2.  A dynamic web page is one that contains content that changes or updates automatically, as opposed to static web pages, which must be updated manually. '554 patent col. 1 ll. 38−55.

To address this problem, the '554 and '335 patents disclose a "partitioned architecture" for managing dynamic web page requests, comprising a "web server" and a plurality of "page servers." Id. col. 4 ll. 51−53, col. 5, ll. 49−51, col. 6 ll. 20−31. The claimed methods aim to lighten the processing demands on the web server by off-loading dynamic web page requests from the web server to the page servers. Id. col. 6 ll. 20−31. This is accomplished by "intercepting" a request for a "dynamic [w]eb page" at the web server and routing it to one of the page servers, thereby "releasing" the web server to "concurrently process[]" other requests. See, e.g., Ex Parte Reexam. Cert. No. 5,894,554 C1, claims 12 and 20 (as corrected by Oct. 2, 2012 Cert. of Correction). By allowing the web server and the page servers to "simultaneously process different requests," the claimed methods increase processing efficiency. '554 pa-tent col. 6 ll. 24−27.

Claim 30 of the '335 patent, reproduced below, is representative of [*4]  the asserted claims3 for the purposes of this appeal.

Footnote 3.  At summary judgment, Parallel asserted direct and indirect infringement of claims 12, 15, 17, 20, 27, 41, 46, 48, and 49 of the '554 patent and 30, 43, 46, 48, 66, 78, 82, 83, and 85 of the '335 patent. At trial, Parallel asserted direct infringement of claims 20, 41, and 49 of the '554 pa-tent and claims 43 and 78 of the '335 patent.

30. A computer-implemented method for managing a dynamic Web page generation request to a Web server, said computer-implemented method comprising the steps of:

routing a request from a Web server to a selected one of a plurality of page servers that can each process the request, said selected page server receiving said request and releasing said Web server to process other requests wherein said routing step further includes the steps of:

intercepting said request at said Web server; and

selecting said selected page server from among said plurality of page servers that can each process said request based on dynamic information maintained for each of said plurality of page servers; and

routing said request to said selected page server;

processing said request, said processing be-ing performed by said selected page server while said Web server concurrently processes said other requests; and

dynamically generating a Web page [*5] at said selected page server in response to said request, said Web page including data dynamically retrieved from one or more data sources.

Ex Parte Reexam. Cert. No. 6,415,335 C1, claim 30 (as corrected by Sept. 11, 2012 Cert. of Correction).



Parallel first argues that the district court erred in excluding its customer- use survey and related expert testimony under Rule 702 of the Federal Rules of Evidence. We review procedural questions that are not unique to patent law under the law of the regional circuit. Microsoft Corp.v. GeoTag, Inc., 817 F.3d 1305, 1310 (Fed. Cir. 2016). The Third Circuit reviews a district court's decision to exclude evidence for abuse of discretion. In re Zoloft Prod. Liab. Litig., 858 F.3d 787, 792 n.22 (3d Cir. 2017). We are not persuaded that the district court abused its discretion by excluding Parallel's survey evidence.

The district court determined that the survey failed to satisfy Rule 702 and Daubert because it was not adequately tied to the asserted claims. Rule 702 requires that expert testimony "help the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. To help the trier of fact, expert testimony must adequately "fit" the factual issue for which it is proffered. Daubert v. MerrellDow Pharm., Inc., 509 U.S. 579, 591 (1993).

Here, Parallel [*6]  submitted its survey as evidence that Microsoft customers use Windows Server to directly infringe the claims. The district court reasonably found that the survey evidence would not assist the trier of fact on the issue of infringement because the survey results do not provide enough information to determine whether any respondent performed each step of the claimed methods. For example, the survey did not ask whether respondents' systems were configured to perform concurrent processing. Additionally, the survey questions contained broad language that did not distinguish between infringing and non-infringing uses.4

Footnote 4.  For example, the survey asked about respondents' use of Windows Server to manage "web (e.g., HTTP) requests." But the claims address the management of "dynamic [w]eb page[s]," and the district court construed "web page" to mean "[w]eb content on the World Wide Web, displayable by a Web browser." Parallel Networks Licensing,LLC v. Int'l Bus. Machs. Corp., No. 13 -cv-2073, slip op. at 1 (D. Del. Apr. 9, 2015). Parallel does not dispute the district court's finding that "web (e.g., HTTP) requests" covers "far more than just dynamic web page requests," including "requests for, among other things, static web pages, FTPs, and information on a local network." Parallel Networks Li-censing, LLC, v. Microsoft Corp., No. 13-cv-2073, slip op. at5 n.3 (D. Del. Feb. 22, 2017); see also id. at 6.

Parallel argues that the expert testimony of Dr. Jones remedies the survey's deficiencies and that this case is analogous to Vita-Mix Corp. v. Basic Holding, Inc., 581 F.3d 1317 (Fed. Cir. 2009). We disagree.

The patent claim in Vita-Mix recited a method of preventing the formation of an air pocket around the blades of a blender by inserting a "plunger" into the blender without stirring. Id. at 1321. A customer-use survey showed that a certain percentage of customers using the accused product inserted a "stir stick" into the blender without actively stirring. Id. at 1325. The district court excluded the survey evidence as irrelevant [*7]  because the expert who conducted the survey only testified about how survey respondents used their stir sticks and did not address air pocket formation. Id. In reversing the district court, we noted the testimony from a second expert, who opined that the accused device "necessarily" infringed the claimed method when a stir stick was inserted into the blender but not actively stirred. Id. at 1326. Because the survey addressed whether respondents used their [*8]  stir sticks in this manner, we determined that the survey was relevant to infringement. Id.

In this case, however, there is no evidence that the survey respondents used Windows Server in a manner that necessarily infringes the claimed methods. Dr. Jones merely opined, without explanation, that "[a]ppropriate answers to survey questions . . . provide evidence that the respondent has likely configured and is using the relevant product in an infringing manner." J.A. 8469 ¶ 231; see also J.A. 8470 ¶ 236 (Dr. Jones stating that the survey results provide "sufficient evidence" that Microsoft customers in-fringe). The district court reasonably found that this testimony does not bridge the gap between the survey results and the question of infringement.

Accordingly, we conclude that the district court properly exercised its discretion in excluding Parallel's customer-use survey and expert testimony relying on the sur-vey.5



We have considered Parallel's remaining arguments and find them unpersuasive. For the foregoing reasons, we affirm the district court's orders.



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