Kewazinga Corp. v. Google LLC

Background

Kewazinga Corporation objected to certain exhibits concerning the K-System that Google LLC intended to introduce at trial. Kewazinga argued that the K-System should not be used to rebut infringement or support Google’s invalidity arguments.

Kewazinga presented deposition testimony from its corporate representative stating that Kewazinga had one prototype, the K-System, and that the system did not use tweening. The opinion states that every claim at issue except Claim 18 of the ’234 patent includes tweening as a claim limitation.

Court’s Analysis

The court reviewed Federal Circuit decisions concerning comparisons between an accused product and a commercial product. Those decisions indicate that such a comparison may support an infringement finding when the commercial product meets all the patent’s claim limitations. In other circumstances, the proper comparison is between the patent claims and the accused product. The court also noted the importance of whether the comparison was invited and whether a proper jury instruction would reduce confusion.

Google presented evidence from which a jury could find that the K-System fully embodied the claims at issue, including tweening. That evidence included testimony from Kewazinga’s corporate representative stating that the system was covered by Kewazinga’s patents, as well as Google’s expert reply report, which incorporated discovery material describing the K-System as using tweening. The court found that this evidence created a factual issue about whether the K-System embodied the claims.

Ruling

The court ordered that Google may present evidence related to the K-System. It further ordered that the parties may propose a limiting instruction on the night before any K-System evidence is presented. The order resolves the evidentiary objection and does not itself decide infringement or patent invalidity.