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8 December 2016Patents

Microsoft survives patent challenge at Federal Circuit

Microsoft has survived an appeal against a lower court decision that it didn’t infringe patents belonging to Impulse Technology.

Yesterday, December 8, the US Court of Appeals for the Federal Circuit affirmed the ruling of the US District Court for the District of Delaware, granting Microsoft’s motion for summary judgment.

In 2011, Impulse sued Microsoft, alleging infringement of 15 claims of the asserted patents: US patent numbers 6,308,565; 6,430,997; 6,765,726; 6,876,496; 7,359,121; and 7,791,808.

The patents share a written description and are directed to the use of 3D motion tracking for interactive fitness and gaming applications.

Impulse alleged that Microsoft’s Xbox 360 video game console and the Kinect sensor, which translates a “user’s natural movement into gameplay”, were infringing.

In 2012, the court referred the case to a magistrate judge to “hear and resolve all pre-trial matters” and in 2014 Microsoft filed a motion for partial summary judgment of non-infringement.

The district court granted summary judgment in 2015.

On appeal, Impulse made two arguments: that the district court erred in its construction of the claim term “defined physical space” and, even under the court’s construction, it erred in granting Microsoft’s summary judgment motion.

Claim 1 of the ‘565 patent concerned: “A testing and training system comprising: a tracking system for continuously tracking an overall physical location of a player in a defined physical space.”

The magistrate judge had recommended a construction for defined physical space as an “indoor or outdoor space having size and/or boundaries known prior to the adaptation of the testing and training system”.

In 2013, before Microsoft’s motion for summary judgment, the district court had adopted the construction.

Impulse argued that the court “improperly imported a ‘temporal limitation’ from what the court perceived to be a feature of a preferred embodiment”.

It added that the claims are “silent” about when the physical space must be defined, and that nothing in the written description “suggests that the size or boundaries of the physical space must be known before the system is adapted for use”.

But the Federal Circuit disagreed with Impulse, explaining that the written description of the claims “suggest that the defined physical space is known and defined prior to game play”.

On the granting of summary judgment, the Federal Circuit said: “We agree with the district court that no reasonable jury could have found that the hardcoded values of the accused products literally meet the ‘defined physical space’ claim limitation.”

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