Fed. Cir. affirms judgment of non-infringement and denial of a motion for a new trial for all three patents, reverses the findings of invalidity regarding two patents and remands to vacate those invalidity judgments.

InTouch Technologies., Inc. v. VGO Communications, Inc., __ F.3d __ (Fed. Cir. May 9, 2014) (O’MALLEY, Rader, Lourie) (C.D. Cal, Anderson) (2 of 5 stars)

INFRINGEMENT:  (1) The Fed Cir affirmed construction of the terms “arbitrator”/“arbitrating” as a “device that determines” and “determining…” respectively because the written description required the arbitrator to resolve access requests from various users, not simply allow access.  Under this construction, there is no infringement because the accused system grants access to a robot to the first requesting user without considering and resolving competing requests for the robot (i.e., it never determines which user has exclusive control of the robot).  (2) Agreeing with the narrow construction of “call back mechanism” as a “device that sends a message to a specific user who previously was denied access to a particular mobile robot that the same mobile robot can now be accessed” based on the intrinsic evidence (including reexamination record), the Fed Cir affirmed non-infringement because the accused system sent a message to all users and was not targeted based on a user’s prior efforts to access the robot.  (3) There was no infringement where the accused system moved the camera based on data corresponding to a pointer’s position relative to a centerline, not based on the movement of the pointer as claimed.

VALIDITY:  Fed Cir reversed the finding of invalidity of two of the three patents because appellee’s expert did not identify sufficient reasons or motivations to combine the asserted prior references but rather provided vague, hindsight, testimony.  Similarly, the expert did not consider what was known to a skilled artisan at the relevant time frame of 2001 and failed to consider appellant’s objective evidence of nonobviousness.  The expert also misinterpreted the prior art of record.

EVIDENTIARY RULINGS:  Fed Cir affirmed denial of a motion for a new trial because admitted opinions of appellees’ outside counsel regarding non-infringement likely did not factor into the jury’s infringement verdict.  The Fed Cir also deemed moot a new trial request on validity based on other admitted testimony, because the Fed Cir already vacated the invalidity findings.