Nazomi Communications, Inc. v. Nokia Corporation , 739 F.3d 1339 ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
NAZOMI COMMUNICATIONS, INC.,
Plaintiff-Appellant,
v.
NOKIA CORPORATION AND NOKIA INC.,
Defendants,
AND
AMAZON.COM, INC.,
Defendant,
AND
WESTERN DIGITAL CORPORATION AND
WESTERN DIGITAL TECHNOLOGIES, INC.,
Defendants-Appellees,
AND
SLING MEDIA, INC.
Defendant-Appellee,
AND
VIZIO, INC.,
Defendant.
______________________
2013-1165
______________________
2 NAZOMI COMMUNICATIONS, INC. v. NOKIA CORPORATION
Appeal from the United States District Court for the
Northern District of California in No. 10-CV-4686, Senior
Judge Ronald M. Whyte.
______________________
Decided: January 10, 2014
______________________
WILLIAM D. BELANGER, Pepper Hamilton LLP, of Bos-
ton, Massachusetts, argued for plaintiff-appellant. With
him on the brief were ALISON L. MCCARTHY, FRANK D.
LIU, and BENJAMIN M. SNITKOFF.
KEVIN P. ANDERSON, Wiley Rein, LLP, of Washington,
DC, argued for defendants-appellees Western Digital
Corporation, et al. and DEANNE E. MAYNARD, Morrison &
Foerster, LLP, of Washington, DC, argued for defendant-
appellee Sling Media, Inc. With them on the brief were
KARIN A. HESSLER and ROBERT J. SCHEFFEL, Wiley Rein
LLP, of Washington, DC, for Western Digital Corporation,
et al.; and BRIAN R. MATSUI, Morrison & Foerster, LLP, of
Washington, DC; and RACHEL KREVANS, SCOTT C. MOORE,
and ESTER KIM, of San Francisco, California, for Sling
Media, Inc.
______________________
Before LOURIE, DYK, and WALLACH, Circuit Judges.
Opinion for the court filed by Circuit Judge DYK.
Concurring opinion filed by Circuit Judge LOURIE.
DYK, Circuit Judge.
Plaintiff Nazomi Communications, Inc. (“Nazomi”)
appeals from a decision of the United States District
Court for the Northern District of California construing
disputed claim language and granting summary judgment
of non-infringement in favor of defendants Western
NAZOMI COMMUNICATIONS, INC. v. NOKIA CORPORATION 3
Digital Corporation and Western Digital Technologies,
Inc. (collectively, “Western”), and Sling Media, Inc.
(“Sling”). We affirm.
BACKGROUND
To function, a computing device requires both hard-
ware and software. Processors are hardware components
embedded in computing devices. The central processing
unit (“CPU”) enables a computing device to carry out
instructions contained in a computer program. Software
refers to instructions that tell the device hardware what
to do. The hardware then follows these instructions
(“executes” the software).
For a software program to run on the CPU of a com-
puting device, the program must be compiled or translat-
ed from a high-level programming language that is
written in a human-readable syntax (“source code”), into a
machine-readable form (“machine code”) that the proces-
sor can understand. Machine code is processor-specific.
As a result, particular compilers can only translate pro-
grams into machine code for particular types of proces-
sors. For example, Intel-based processors use one set of
native instructions, Macintosh PowerPC-based processors
use a different set of native instructions, and ARM Lim-
ited processors use another still. Therefore, to run the
same source code or software on a different system or
platform, it must be recompiled for the new system.
Java is a high-level programming language that ad-
dresses this problem by allowing developers to write
programs that can run on different processors without
being recompiled for each new system. Instead, the Java
language uses a single compiler that translates Java
programs into “bytecodes” instead of processor-specific
machine code. Java bytecodes do not run directly on the
CPU, but on a Java Virtual Machine (“JVM”) which
translates them into processor-specific machine code.
4 NAZOMI COMMUNICATIONS, INC. v. NOKIA CORPORATION
Therefore, programs written in Java can run on any
platform and any operating system, providing one of the
principle advantages of Java programs—their “portabil-
ity.”
Computing devices also vary in how they store data in
memory, which affects the characteristics of the machine
code. Processors using stack-based memory systems
“store information on a last-in, first-out basis . . . , analo-
gous to a stack of papers in an inbox.” JA 2709. There-
fore, “[t]o access a paper at the bottom of the stack, the
reader must remove all of the papers above it.” JA 2709.
In contrast, register-based memory “stores and retrieves
data according to the exact location of each data item,
much like an arrangement of post office boxes.” JA 2709.
As a result, processors that use different memory storage
systems must also use different types of machine code or
“instruction sets,” namely, “stack-based” instructions and
“register-based” instructions. Although most modern
processors use a register-based approach, Java bytecodes
are stack-based instructions.
Therefore, a device using a register-based processor
can run programs written in Java using a JVM that
translates the stack-based Java bytecodes into register-
based instructions. But executing Java bytecodes using a
typical software-based JVM takes longer than executing
programs that can run directly on the device’s hardware
without translation. One solution to this problem is
processing certain Java bytecodes in hardware where the
appropriate software is present to “accelerate” the execu-
tion of Java programs. However, such hardware-based
JVMs may be unable to process legacy applications that
are not programmed in Java.
Nazomi’s two patents asserted here aim to address
this issue. They describe a hardware-based JVM capable
of processing stack-based instructions, that also retains
NAZOMI COMMUNICATIONS, INC. v. NOKIA CORPORATION 5
the ability to run legacy (i.e., register-based) applications
without utilizing the JVM. At issue are four apparatus
claims from two related patents, independent claims 48
and 74 of U.S. Patent No. 7,080,362 (“the ’362 patent”)
and independent claims 1 and 5 of U.S. Patent No.
7,225,436 (“the ’436 patent”). Representative claim 48 of
the ’362 patent reads:
48. A central processing unit (CPU) capable of ex-
ecuting a plurality of instruction sets comprising:
an execution unit and associated register file, the
execution unit to execute instructions of a plu-
rality of instruction sets, including a stack-
based and a register-based instruction set;
a mechanism to maintain at least some data for
the plurality of instruction sets in the register
file, including maintaining an operand stack
for the stack-based instructions in the register
file and an indication of a depth of the oper-
and stack;
a stack control mechanism that includes at least
one of an overflow and underflow mechanism,
wherein at least some of the operands are
moved between the register file and memory;
and
a mechanism to generate an exception in respect
of selected stack-based instructions.
’362 patent col. 10 l. 57 to col. 11 l. 6. 1
1 The remaining claims at issue mirror the ele-
ments of claim 48:
74. A central processing unit (CPU) comprising:
6 NAZOMI COMMUNICATIONS, INC. v. NOKIA CORPORATION
a decoding mechanism [for a plurality of instruc-
tion sets, including stack-based and register-
based];
a register file [including an operand stack to store
operands for the stack-based instruction set
and data associated with the register for reg-
ister-based instruction set];
at least one of an overflow and underflow mecha-
nism to cause the operands to—be moved be-
tween the register file and memory; and
an execution unit that processes the output [of the
decoding of the stack-based and register-based
instruction sets].
’362 patent col. 12 ll. 29-47.
1. A CPU for executing stack and register-based
instructions, comprising;
execute logic . . . for executing the register-based
instructions;
a register file associated with the execute logic ;
and
a hardware accelerator to process stack-based in-
structions . . . , wherein the hardware acceler-
ator generates a new virtual machine program
counter . . . , computes the return virtual ma-
chine program counter and pushes the return
virtual machine program counter.
’426 patent col. 14 ll. 30-46.
5. A central processing unit (CPU) comprising:
execute logic . . . ;
a hardware accelerator. . . ;
an operand stack . . . ;
an overflow/underflow mechanism . . . ;
a bytecode buffer that receives stack-based in-
structions . . . ; and
an instruction decode unit . . . ; and
a common program counter . . . .
NAZOMI COMMUNICATIONS, INC. v. NOKIA CORPORATION 7
Defendants Western and Sling are consumer product
manufacturers that incorporate various processors into
their products. ARM Limited (“ARM”) develops processor
designs, which it licenses to third party chip-makers such
as Qualcomm and Texas Instruments to build physical
processor chips. Although ARM does not make or sell
processors, ARM has a suite of processor designs that are
used in many computing devices. Chip-makers select a
suitable ARM processor design depending on the particu-
lar purpose for which the processor will be used. The
chips incorporating ARM’s designs are utilized by con-
sumer product manufacturers such as Western and Sling.
Initially, ARM processors could directly execute only
two types of machine code, both of which are register-
based instructions. They could also execute Java’s stack-
based instructions using the method known in the prior
art to the Nazomi patent—running a software-based JVM
that would translate the Java bytecodes into ARM’s
register-based machine code. In 2000, ARM developed a
chip design that would accelerate the processing of Java
bytecodes. The hardware component of the ARM design
was called “Jazelle.” As with its other processor code
designs, ARM licensed the ARM 926EJ-S processor core
(“ARM core”) to various chip-makers. As with the other
ARM processors, this ARM core is often selected by chip-
makers for its flexibility; it can be incorporated into chips
for different end uses, ranging from smartphones to
refrigerators.
Because the ARM core design and the chips based on
that core are intended to be used in a wide variety of
products, they often contain optional functionality not
utilized nor enabled by every manufacturer. The Jazelle
hardware is one such optional feature. Both accused
’426 patent col. 15 ll. 26-50.
8 NAZOMI COMMUNICATIONS, INC. v. NOKIA CORPORATION
products, Western’s MyBook World Edition (“MyBook”)
and Sling’s Slingbox Pro-HD (“Slingbox”), have CPUs
containing an ARM core with Jazelle hardware. However,
the Jazelle hardware on the accused devices cannot
perform the functionality described in Nazomi’s asserted
claims without software known as Jazelle Technology
Enabling Kit (“JTEK”). Consumer product manufacturers
can license JTEK from ARM for a fee. Defendants West-
ern and Sling did not license the JTEK software from
ARM and have never installed the JTEK software to
enable Jazelle on the accused devices.
In February 2010 Nazomi filed a complaint in the
Central District of California against various technology
companies, including Western and Sling, alleging in-
fringement of the ’362 patent and the ’436 patent. In
October 2010, the case was transferred to the Northern
District of California. In July 2012 Western and Sling
filed a motion for summary judgment contending that the
claims should be construed to require that the device
perform the claimed functions itself, and that the accused
products did not infringe the asserted claims because they
included the Jazelle hardware but not the necessary
JTEK software. In opposing summary judgment, Nazomi
argued that asserted claims 48 and 74 of the ’362 patent
and claims 1 and 5 of the ’436 patent 2 cover any generic
hardware that “could process stack-based instruc-
tions . . . , regardless of whether the device ever actually
does so.” JA 4. In other words, Nazomi argued that the
claims describe only the hardware component necessary
to perform the claimed functionalities, i.e., the Sling and
2 Nazomi initially alleged infringement of claims
48, 74, and 86 of the ’362 patent and claims 1 and 5 of the
’436 patent. However, Nazomi withdrew its assertion of
claim 86 before this appeal.
NAZOMI COMMUNICATIONS, INC. v. NOKIA CORPORATION 9
Western products infringed based on the presence of the
Jazelle hardware alone, even without the activation of the
JTEK software.
The district court granted Western and Sling’s motion
for summary judgment and found that the claimed appa-
ratus must itself be capable of performing the claimed
functions, and construed the asserted claims to require a
hardware and software combination capable of processing
both register-based and stack-based instructions. The
court concluded that without the enabling JTEK software,
Jazelle hardware cannot process stack-based instructions
at all. Because Jazelle hardware alone could not process
stack-based instructions, and the Western and Sling
apparatuses do not include the necessary JTEK software,
the district court found that the accused devices do not
infringe. The district court then certified the judgment for
appeal pursuant to Fed. R. Civ. P. 54(b). Nazomi appeals,
and we have jurisdiction under 28 U.S.C. § 1295(a)(1).
DISCUSSION
I. Claim Construction
The first step of the infringement analysis is claim
construction, a question of law reviewed de novo. Cybor
Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed. Cir.
1998) (en banc). The district court treated claim 48 of the
’362 patent as representative of all the asserted claims
and held that it is “similar in most respects to the other
asserted claims.” JA 5. Nazomi does not dispute the
propriety of treating claim 48 as representative of all the
asserted claims, which are all directed to a CPU and
recite limitations pertaining to its functionality.
The district court construed the claims as claiming an
apparatus, comprising both hardware and software,
capable of practicing the claimed functionality. The court
rejected Nazomi’s construction requiring only hardware
10 NAZOMI COMMUNICATIONS, INC. v. NOKIA CORPORATION
that was capable of performing the claimed functionali-
ties. We agree. The face of the claims shows that each
particular functionality is a claim limitation. For exam-
ple, the italicized portions of claim 48 below recite specific
claim functionalities that cannot be practiced in hardware
alone and require enabling software:
48. A central processing unit (CPU) capable of ex-
ecuting a plurality of instruction sets comprising:
an execution unit and associated register file, the
execution unit to execute instructions of a plu-
rality of instruction sets, including a stack-
based and a register-based instruction set;
a mechanism to maintain at least some data for
the plurality of instruction sets in the register
file, including maintaining an operand stack
for the stack-based instructions in the register
file and an indication of a depth of the oper-
and stack;
a stack control mechanism that includes at least
one of an overflow and underflow mechanism,
wherein at least some of the operands are
moved between the register file and memory;
and
a mechanism to generate an exception in respect
of selected stack-based instructions.
’362 patent col. 10 l. 57 to col. 11 l. 6 (emphases added).
The claims recite a CPU that can perform particular
functions, namely, the processing of both register-based
and stack-based instructions. Since hardware cannot
meet these limitations in the absence of enabling soft-
ware, the claims are properly construed as claiming an
apparatus comprising a combination of hardware and
software capable of practicing the claim limitations. For
example, claim 48 does not recite generic mechanisms,
NAZOMI COMMUNICATIONS, INC. v. NOKIA CORPORATION 11
but requires specific functions of “(1) maintaining an
operand stack for the stack-based instructions; (2) per-
forming ‘stack control’ of ‘overflow/underflow’ by moving
operands between the registers and memory; and (3)
generating exceptions for certain stack-based instruc-
tions.” JA 3938; see also ’362 patent col. 10 l. 57 to col. 11
l. 6. These limitations on the claimed CPU pertain specif-
ically to the processing of stack-based instructions.
Further, the need for the specified functionality is
confirmed by the ’362 patent specification, which indi-
cates that “the [Java] hardware accelerator can convert
the stack-based Java bytecodes into . . . register-based
native instructions on a CPU.” ’362 patent col. 2 ll. 23-25.
The specification also explains that “[t]he Java hardware
accelerator can do[] some or all of the following tasks,”
and lists functions involved in processing stack-based
instructions, including “managing the Java stack on a
register file” and “generating exceptions on instructions
on predetermined bytecodes,” mirroring the limitations in
claims 48 and 74. ’362 patent col. 3 ll. 10-19; see, e.g., ’362
patent col. 11 ll. 5-6, col. 12 ll. 33-37. Contrary to Nazomi,
there is nothing unusual or improper in construing device
claims to require particular functionality. See, e.g., Ty-
phoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376, 1381
(Fed. Cir. 2011); K-2 Corp. v. Salomon S.A., 191 F.3d
1356, 1363 (Fed. Cir. 1999).
The cases on which Nazomi relies do not support its
position. For example, in Intel Corporation v. U.S. Inter-
national Trade Commission, the claims only required
“programmable selection means,” and the accused product
infringed because it could be programmed to perform the
infringing use. 946 F.2d 821, 832 (Fed.Cir. 1991). We
held that the “programmable” claim language required
only that the accused product could be programmed to
perform the claimed functionality. Id. In contrast, Naz-
omi has not claimed an apparatus with hardware “pro-
12 NAZOMI COMMUNICATIONS, INC. v. NOKIA CORPORATION
grammable” to process stack-based instructions, it has
claimed a combination of hardware and software capable
of performing that function. See also Fantasy Sports
Props., Inc. v. Sportsline.com, Inc., 287 F.3d 1108, 1117-18
(Fed. Cir. 2002) (“Intel therefore does not stand for the
proposition . . . that infringement may be based upon a
finding that an accused product is merely capable of being
modified in a manner that infringes the claims of a pa-
tent.”).
Similarly, in Silicon Graphics, Inc. v. ATI Technolo-
gies, Inc., the claims contemplated use in an operating
system environment and we overturned the district
court’s ruling that the accused products did not infringe
because they could not meet the claim limitations until
combined with a computer operating system. 607 F.3d
784, 794-95 (Fed. Cir. 2010). There, the asserted patent
claimed a system for rendering graphics, including claims
covering a “processor that rasterizes” and a “frame buff-
er . . . for storing” data. Id. at 795. The asserted claims
contemplated that the claimed hardware would be used in
the environment of a standard operating system to per-
form the claimed processes. Id. We construed the claims
as requiring hardware that could execute the claimed
functionality when combined with the Microsoft Windows
operating system. Id. at 794. We have repeatedly distin-
guished a description of the environment in which a
claimed invention operates from a limitation on the
claimed invention itself. For example, in Advanced
Software Design Corporation v. Fiserv, Inc., as in Silicon
Graphics, the claims were addressed to achieving a par-
ticular functionality in “the environment in which the
claim operate[d],” and were therefore not “limitations that
must be performed by an accused infringer.” 641 F.3d
1368, 1375 (Fed. Cir. 2011). Here, in contrast, the claims
do not cover hardware that contemplates an environment
where it could be combined with software, but rather
NAZOMI COMMUNICATIONS, INC. v. NOKIA CORPORATION 13
require a hardware-software combination that must
perform the described functions. 3 We affirm the district
court’s claim construction.
II. Infringement Analysis
The second step in an infringement analysis is deter-
mining whether the particular accused device infringes
under the claim construction. Wright Med. Tech., Inc. v.
Osteonics Corp., 122 F.3d 1440, 1443 (Fed. Cir. 1997).
Here, it is undisputed that the Jazelle hardware is physi-
cally present as part of the ARM core on both accused
devices, the MyBook and the Slingbox, and that the
Jazelle hardware is not functional without the JTEK
3 Fantasy Sports is similar to Silicon Graphics. In
Fantasy Sports, the asserted patent claimed “[a] computer
for playing football,” and set forth a number of functional-
ly defined means that must be included in the computer-
executable software, such as “means for scoring . . . bonus
points.” Fantasy Sports, 387 F.3d at 1118. In Fantasy
Sports, the claims were interpreted to claim software
standing alone. As in Silicon Graphics, the computer was
merely the environment in which the software operated.
Nazomi also relies on Revolution Eyewear, Inc. v.
Aspex Eyewear, Inc. for the proposition that a claim can
cover particular hardware standing alone. 563 F.3d 1358
(Fed. Cir. 2009). This too, is inapplicable, as the patent in
Revolution Eyewear claimed an eyeglass device compris-
ing a “primary spectacle frame . . . capable of engaging
second magnetic members of an auxiliary spectacle
frame.” Id. at 1363. Because the first specified hardware
alone had this capability, the claim at issue in Revolution
Eyewear is distinguishable from Nazomi’s claims, which
require a combination of hardware and software to per-
form the claim limitations.
14 NAZOMI COMMUNICATIONS, INC. v. NOKIA CORPORATION
software. This would appear to resolve the issue of in-
fringement.
However, Nazomi points out that we have held that
“an apparatus claim directed to a computer that is
claimed in functional terms is nonetheless infringed so
long as the product is designed in such a way as to enable
the user of that [product] to utilize the function without
having to modify the product.” Silicon Graphics, 607 F.3d
at 794 (internal quotations omitted) (emphasis added).
Nazomi argues that installation of the JTEK software is
not a modification that precludes a finding of infringe-
ment. We disagree. The purchase and installation of the
JTEK software clearly constitutes a “modification” of the
accused products. 4
For example, in Typhoon Touch Technologies, Inc. v.
Dell, Inc., the asserted patent claimed “[a] portable,
keyboardless, computer, comprising . . . a memory for
storing at least one data collection application.” 659 F.3d
1376, 1379 (Fed Cir. 2011) (emphases in original). There,
Typhoon made the same argument that Nazomi does
here, that the accused devices infringe if they “ha[ve] the
capability of being configured or programmed to perform
the stated function,” even though the accused devices
were not structured to perform that stated function as
sold. Id. at 1380 (emphasis added). We disagreed, finding
that an accused device must be presently “structured to
store at least one data collection application” to infringe
4 Western and Sling argue that the JTEK software
could not be installed without hacking the accused devices
and that such hacking (or modifying the system for an
unintended use) would render the devices useless. We
need not address this issue. Even if JTEK could be in-
stalled without hacking, the addition of the JTEK soft-
ware would be still be a modification.
NAZOMI COMMUNICATIONS, INC. v. NOKIA CORPORATION 15
the asserted claims—that the enumerated functions
served as claim limitations. Id. at 1381. Here, as in
Typhoon, the products sold by Western and Sling do not
infringe without modification—the modification of in-
stalling the required software. 5 See also Telemac Cellular
Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1326, 1330
(Fed. Cir. 2001) (finding accused product non-infringing
because it could not directly place international calls, a
claim limitation of the asserted patent, without modifica-
tion, namely, employment of an outside carrier that could
place international calls).
The “key” cases on which Nazomi relies are also to the
contrary. In Finjan, Inc. v. Secure Computing Corp., the
infringing software capable of practicing the claim limita-
tions was on the accused devices and could be unlocked by
purchasing a product key. 626 F.3d 1197, 1205 (Fed. Cir.
2010). The devices infringed even if the software had not
been activated. Id. Here, the structure (i.e., JTEK soft-
ware) necessary to enable Jazelle hardware to process
stack-based instructions (i.e., Java bytecodes) is not only
inactive, it is not even present on the accused products.
The installation of JTEK software is not unlocking exist-
5 Nazomi also argued that because the stack-based
functionality is bypassed when legacy applications (i.e.,
register-based) are being processed, the claims contem-
plate an invention where the hardware required to pro-
cess stack-based instructions is not enabled by the
necessary software. We disagree. The claims are clear
that the apparatus must, at all times, be capable of pro-
cessing stack-based instruction sets in the hardware.
This is not possible without the enabling software.
16 NAZOMI COMMUNICATIONS, INC. v. NOKIA CORPORATION
ing functionality, but adding new functionality not cur-
rently present. There is no infringement. 6
Finally, Nazomi argues that the District Court im-
properly required a showing of intent by the defendants
as a predicate to an infringement finding. The district
court did no such thing. Rather, it was distinguishing
this court’s decision in High Tech Medical, which stated
“if a device is designed to be altered or assembled before
operation, the manufacturer may be held liable for in-
fringement if the device, as altered or assembled, infring-
es a valid patent.” 49 F.3d at 1556. Here there is no
suggestion that the accused devices were designed to be
used with the JTEK software. Under these circumstanc-
es, we have no occasion to consider whether the design of
a device that contemplates use in an infringing manner
6 Another case in which a necessary modification
was required to infringe the claims was High Tech
Medical Instrumentation v. New Image Industries, 49
F.3d 1551 (Fed. Cir. 1995). There, the asserted patent
claimed an “optical device comprising . . . a cam-
era disposed in [a] body member, said camera being
rotatably coupled to said body member,” where physically
rotating the camera allowed the displayed image to be
rotated during the use of the optical device. Id. at 1553
(emphasis added). The accused product included a fixed
camera that rotated the images using software, but it was
possible to physically rotate the camera by loosening the
screws that attached the camera to the housing. Id. at
1555. We found that the patentee was not likely to suc-
ceed in proving infringement because the loosening of the
screws was a modification of the product. Id. at 1555-56.
NAZOMI COMMUNICATIONS, INC. v. NOKIA CORPORATION 17
could establish direct infringement, as opposed to induced
or contributory infringement. 7
Therefore, we affirm the district court’s grant of
summary judgment of non-infringement.
AFFIRMED
COSTS
No costs.
7 Although Nazomi asserted claims of indirect in-
fringement under 35 U.S.C. § 271(b)-(c) in its complaint, it
did not appeal the district court’s grant of summary
judgment on those claims.
United States Court of Appeals
for the Federal Circuit
______________________
NAZOMI COMMUNICATIONS, INC.,
Plaintiff-Appellant,
v.
NOKIA CORPORATION AND NOKIA INC.,
Defendants,
AND
AMAZON.COM, INC.,
Defendant,
AND
WESTERN DIGITAL CORPORATION AND
WESTERN DIGITAL TECHNOLOGIES, INC.,
Defendants-Appellees,
AND
SLING MEDIA, INC.
Defendant-Appellee,
AND
VIZIO, INC.,
Defendant.
______________________
2013-1165
______________________
2 NAZOMI COMMUNICATIONS, INC. v. NOKIA CORPORATION
Appeal from the United States District Court for the
Northern District of California in No. 10-CV-4686, Senior
Judge Ronald M. Whyte.
LOURIE, Circuit Judge, concurring.
I concur in the majority’s decision to affirm the dis-
trict court’s decision granting summary judgment of
noninfringement of the ’362 patent. However, I join its
opinion only up to and through the first paragraph of Part
II, in which the holding of noninfringement is affirmed on
the ground that the claim limitation “capable of executing
a plurality of instruction sets . . .” is not met by Jazelle
hardware that is not functional without the JTEK soft-
ware.