Internal Testing Activities Alone Can Be The Basis Of A Patent Jury Trial

Internal Testing Activities Alone Can Be The Basis Of A Patent Jury Trial, Interwoven, Inc. v. Vertical Computer Systems, Case No. 10-4645 (Judge Seeborg)

Asserting patented method claims against a product feature is not always straightforward. To prove infringement, patentees often rely on a combination of indirect infringement theories supported by product documentation as well as direct internal testing by the defendant. Usually, the focus is on the indirect infringement, because customer usage undoubtedly makes up the lion's share of the alleged infringing use of the method. However, though internal testing may seem like a small proportion of the overall usage, Judge Seeborg's summary judgment order is a reminder that internal testing can still be the focus of an infringement trial.

Internal Testing May Be Proven By Product Manuals

Interwoven, the accused infringer and DJ plaintiff, moved for summary judgment on direct infringement and damages. Judge Seeborg had previously granted summary judgment for Interwoven on the doctrine of equivalents and indirect infringement theories. Thus, the only question was whether patent holder Vertical could proceed on a direct infringement case based on Interwoven's alleged internal testing of the accused TeamSite software.

Vertical relied on user guides and other documentation describing the TeamSite software and Interwoven argued that this was circumstantial evidence that could not prove actual internal testing. Judge Seeborg denied summary judgment on infringement, finding triable issues that (1) Interwoven's product documentation could show literal infringement by the software, and (2) a jury could find that the documentation could not...