Impulse Technology Ltd. v. Microsoft Corporation, et al., C.A. No. 11-586-RGA-CJB, March 27, 2015 (initially sealed)

Burke, M.J.  Report and Recommendation recommending that defendants’ motion for summary judgment of noninfringement be granted; defendants’ motion for summary judgment of invalidity be denied.  Oral argument was held on October 28, 2014.

The disputed technology relates to quantifying physical motion of a player or subject and providing feedback.  Plaintiff’s literal infringement claim fails because it cannot be reconciled with the court’s claim construction.  Its DOE argument likewise fails because there is no expert testimony comparing the abstract set of coordinates plaintiff relies on with the real-world physical space limitation required by the claim.  Also, the doctrine of vitiation applies since no reasonable juror could find that an abstract space is interchangeable with an actual, physical space.  As for invalidity, the court finds no anticipation since the cited prior art does not disclose a defined physical space.  As for obviousness of one claim, the court finds that it is a question for the jury.