Summary Judgment granted where plaintiff did not rebut defendant's expert's opinion on obviousness

Judge Fawsett previously held in the Voter Verified v. Election Systems dispute that you can not infringe a surrendered patent. She's now had a chance to address defendant's further summary judgment motion, asking the Court to find one of the claims of the patent invalid for being obvious in view of the prior art.

First, plaintiff objected to the prior art defendant relied on. The court considered some of the art prior art, but found that other references did not qualify because they were not reasonably accessible to the public interested in the art. The reference that didn't make it was purportedly presented at the Fifth International Computer Virus and Security Conference. Defendant asked the court to find this article prior art on the basis that: (1) defendant's expert stated that the paper was presented at the conference; (2) the paper had a legend in the bottom corner of each page stating the conference name. But this wasn't enough. Specifically, there was no evidence in the record concerning the manner in which the paper was published, and how it was made available to persons of interest in the art. Thus, it didn't qualify as prior art for purposes of summary judgment consideration.

That small win, though, didn't carry the day for plaintiff, because the defendant had other art that was considered prior art. The summary judgment dispute turned on whether the claimed invention was obvious in light of the prior art. To resolve this, the court went through the Graham factors and found the subject claim obvious. Defendant's expert opined on each of the factors ((1) the scope and content of the prior art; (2) differences between the claims and the prior art; (3) the level of ordinary skill in the pertinent art; and (4) secondary considerations such as commercial success and satisfaction of a long felt need). Plaintiff disagreed with the expert's conclusions, but does not have appeared to offer any evidence to the contrary. As such, summary judgment was appropriate.

Summary judgment granted. Claim held invalid for being obvious.

Voter Verified v. Election Systems & Software, Inc., Case No. 6:09-CV-01969 (M.D. Fla. Jan. 25, 2011) (J. Fawsett)