Impulse Technology Ltd. v. Microsoft Corporation, et al, C.A. Nos. 14-586-RGA-CJB; April 9, 2015.

Burke, C. J.  Report and Recommendation that Defendant’s motion for summary judgment of noninfringement of claim 11 of the patent-in-suit be denied, and for non-willfulness be granted.

The non-infringement argument turns on the claim term “training sequence.”  The court notes that if defendant’s argument were accepted, two claims of the patent would be co-extensive. Alternative arguments were rejected, and the court found that material issues of fact remain as to infringement.  As for the willfulness argument, the court finds that defendant’s non-infringement argument alone is not sufficient to preclude a willfulness determination.  However, the court has determined that issues of fact remain, and noted that many aspects of defendant’s arguments were well-taken. Plaintiff cannot demonstrate that defendant acted willfully.