Reconsideration of Markman ruling is denied; summary judgment rulings issue
Flash Seats, LLC v. Paciolan, Inc., Civ. No. 07-575-LPS, September 28, 2011.
Stark, J. Plaintiff’s motion to reconsider is denied; plaintiff’s leave motion is granted; defendant’s motion for summary judgment is granted with respect to (i) the non-infringing use of defendant’s accused system, and (ii) the invalidity of 5 claims as indefinite.
The patent-in-suit relates to a method of electronically exchanging tickets for an event in a secondary market from ticket sellers to ticket buyers located at remote terminals. Plaintiff moved for reconsideration of a previous judge’s claim construction. A motion for reargument is the functional equivalent to a motion to alter or amend under Rule 59(e). The motion, filed within 17 days, was contested in part as untimely. The court assumed without deciding that it was timely, but permitted plaintiff a limited response, including a response to the timeliness argument. The court examined the prosecution history and thoroughly explained its interpretation. There was no misapprehension of that history. Defendant’s motion for summary judgment is granted as to non-infringement. Plaintiff’s now preferred claim construction of the term “presenting” was not presented to the court during claim construction and was not adopted by the court. It cannot avoid summary judgment by asserting that the claims cover something the court has ruled they do not cover. Defendant’s motion for summary judgment as to indefiniteness is also granted because with respect to means-plus function limitations, corresponding structure is lacking in the specification.
