Not deterred by losing two previous cases on a stipulated judgment immediately following claims construction, SmartMetric, Inc., sued MasterCard International and Visa on August 29, 2011, in the U.S. District Court for the Central District of California.13 The patent-in-suit is U.S. Patent No. 6,792, 464 (“the ’464 Patent”), entitled “System for Automatic Connection to a Network.” SmartMetric alleges that MasterCard and Visa infringe at least Claims 1 and 14 of the ’464 Patent by selling, offering to sell and using “contact and contact/contactless credit card systems that use datacards that, when inserted into a datacard reader, help to establish connection to a network.”14 The case is assigned to District Judge Wu, who did not handle either of the two prior SmartMetric cases discussed below.
SmartMetric previously sued both defendants on March 15, 2010, in the same Court.15 In that case, SmartMetric initially alleged that MasterCard’s PayPass and Visa’s PayWave infringed the ’464 Patent.16 In March 2011, the Court construed four terms of the ’464 Patent, agreeing with defendants’ construction for two terms and Plaintiff’s construction for two terms.17 Based on the constructions for which the Court agreed with defendants, the parties jointly moved for, and the Court ordered, a final judgment of non-infringement in favor of MasterCard and Visa. SmartMetric immediately appealed the decision to the Federal Circuit. The Federal Circuit has consolidated this appeal with one filed by SmartMetric in the American Express case discussed below.18
On December 7, 2010, SmartMetric sued American Express in the U.S. District Court for the Central District of California alleging that American Express’s ExpressPay infringed at least Claims 1 and 14 of the ’464 Patent.19 Based on the Court’s claim construction order in the above-discussed SmartMetric v. MC and Visa “I”, the parties jointly requested the entry of judgment in favor of American Express for non-infringement of the ’464 Patent by the ExpressPay system. SmartMetric immediately appealed this judgment to the Federal Circuit which, as noted above, consolidated the two appeals.20 SmartMetric’s opening brief to the Court is due on September 21, 2011.21