Geospatial Technology Associates, LLC v. United States

In the United States Court of Federal Claims
No. 16-346C
Filed Under Seal: April 8, 2021
Reissued: June 3, 2021*
NOT FOR PUBLICATION
)
GEOSPATIAL TECHNOLOGY )
ASSOCIATES, LLC, )
) Patent Invalidity; Summary Judgment;
Plaintiff, ) RCFC 56; Novelty; Anticipation; Priority
) Date; 35 U.S.C. §102; 28 U.S.C. § 1498.
v. )
)
THE UNITED STATES, )
)
Defendant. )
)
Richard T. Matthews, Counsel of Record, Williams Mullen, P.C., Raleigh, NC, for
plaintiff.
Jenna Munnelly, Trial Attorney, Gary L. Hausken, Director, Scott Stewart, Deputy
Assistant Attorney General, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, for defendant.
MEMORANDUM OPINION AND ORDER
GRIGGSBY, Judge
I. INTRODUCTION
In this patent and copyright infringement action, Geospatial Technology Associates, LLC
(“GTA”) alleges that the United States has infringed upon one or more of the claims of U.S.
Patent No. 8,897,489 (the “‘489 Patent”) and upon GTA’s registered copyright rights in certain
software code (the “NINJA.pro Copyright”). See generally 4th Am. Compl. The government
*
This Memorandum Opinion and Order was originally filed under seal on April 8, 2021. ECF No. 247.
The parties were given an opportunity to advise the Court of their views with respect to what information,
if any, should be redacted from the Memorandum Opinion and Order. On May 10, 2021, GTA filed a
joint status report on behalf of the parties stating that the parties had no redactions to the Memorandum
Opinion and Order. ECF No. 254. And so, the Court is reissuing its Memorandum Opinion and Order,
dated April 8, 2021, as the public opinion.
has filed a brief on patent invalidity and the parties have filed cross-motions for summary
judgment on the priority and conception dates for the ‘489 Patent and patent invalidity issues,
pursuant to Rule 56 of the Rules of the United States Court of Federal Claims (“RCFC”). See
generally Def. Br.; Pl. Resp. and MSJ; Def. MSJ. For the reasons set forth below, the Court
DENIES GTA’s motion for summary judgment and GRANTS-IN-PART the government’s
cross-motion for summary judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND1
A. Factual Background
In this patent and copyright infringement action, GTA alleges that several government
agencies, programs, platforms and sensors have used software algorithms and software code that
utilize the claimed subject matter of the ‘489 Patent and infringe upon one or more claims of the
‘489 Patent. See generally 4th Am. Compl. GTA also alleges that these government agencies,
programs, platforms and sensors infringe upon its NINJA.pro Copyright.2 Id. As relief, GTA
seeks to recover monetary damages from the government. Id. at Request for Relief.
1. The ‘489 Patent
As background, the ‘489 Patent patents technology involving automated image
processing and target detection. See generally ‘489 Patent. This patent was filed on January 28,
2011, and GTA maintains that it relates back to provisional application No. 61/337,065, which
was filed on January 29, 2010 (the “‘065 Provisional Application”). Id.
1The facts recited in this Memorandum Opinion and Order are taken from the fourth amended complaint
(“4th Am. Compl.”); the ‘489 Patent; the government’s brief on patent invalidity (“Def. Br.”); GTA’s
response to the government’s brief on patent invalidity and motion for summary judgment (“Pl. Resp. and
MSJ”) and the exhibits attached thereto (“Pl. Ex.”); the government’s reply in support of its patent
invalidity brief (“Def. Reply Br.”); the government’s cross-motion for summary judgment (“Def. MSJ”);
GTA’s response and reply in support of its motion for summary judgment (“Pl. Reply”); and the
government’s reply in support of its cross-motion for summary judgment (“Def. Reply”). Except where
otherwise noted, all facts recited herein are undisputed.
2
The United States Copyright Office issued U.S. Copyright Registration No. TX 8-420-604, bearing an
effective registration date of July 15, 2017, for work entitled “Methods for Object-Based Identification,
Sorting and Ranking of Target Detection and Apparatuses Thereof.” 4th Am. Compl. Ex. 2. William
Basener is identified as the author of the computer program that is the subject of this copyright. Id. GTA
is identified as the copyright claimant on the certificate of registration. Id.
2The ‘065 Provisional Application is entitled “Methods for Object-Based Sorting and
Ranking of Target Detections and Devices Thereof.” Pl. Ex. C at 1. The ‘065 Provisional
Application states, in relevant part, that:
[T]his Object-Based Sorting and Ranking of Target Detections (OBSR)
technology is a new method for sorting and ranking target detection scores
in mulit [sic]-band spectral imagery. . . . The list of detections can contain
metadata, such as time, latitude, longitude, nearby detected materials, and
can be searched and cataloged as a database.
Given a collection of one or more images, a statistical target detection filter
is applied using one or more signatures from a library. The set of detection
scores on pixels in a single image for a single target is called a detection
plane. Each pixel is ranked by the number of standard deviations from the
mean for the detection plane to give a statistical score for every pixel in the
image collection. This score can be used to compare the strength of
detections across images and targets.
A second, spatial, process is applied to turn the per-pixel statistical scores
into an object-based score. The highest scoring pixel in the image collection
is identified (call it x) and a local region around this pixel is chosen.
Endmembers . . . are chosen from this local region after the top statistical
detection scores for the given target are masked out. The convex hull of
these endmembers is a geometric model of the background for the detected
pixel. The pixel is then “unmixed” by finding abundances . . . that give the
best approximation of the pixel spectra as a linear combination of the
background endmembers and the target . . . .
Id. at 3-4.
In November 2008, the inventor of the ‘489 Patent, Dr. William Basener, and his wife
prepared an unsolicited draft proposal, entitled “Mathematically-Optimized Target Detection in
Spectral Imagery” (the “Unsolicited Draft Proposal”). Def. Br. Ex. D at 1. The Unsolicited
Draft Proposal states, in relevant part, that:
We propose to conduct basic research into the mathematical foundations of
target detection in hyper/mulit [sic]-spectral imaging to achieve two
objectives:
1. Develop a Spectral Discrimination Prediction (SPD) [sic] algorithm,
including software, that 1) can predict the relative performance of a given
algorithm detecting a given spectra at multiple fill fractions in a given
image, 2) predict the confuser materials for a given spectra in an image, and
3) predict the top performing detection algorithm for a given spectra and
image.
3
2. Develop a suite of algorithms that use SDP to optimize target detection
performance beyond the NGA 5 year goal.
Id. at 3.
On November 25, 2014, the United States Patent and Trademark Office (“USPTO”)
issued the ‘489 Patent to the Rochester Institute of Technology (“RIT”). See generally ‘489
Patent. Thereafter, RIT and GTA entered into an exclusive license agreement, whereby RIT
transferred all substantial rights in the ‘489 Patent, including copyright rights in the NINJA.pro
software, to GTA on November 12, 2015. 4th Am. Compl. at ¶¶ 20-23, 30.
The invention, as described in the ‘489 Patent abstract, is as follows:
A method, non-transitory computer readable medium, and apparatus that
provides object-based identification, sorting and ranking of target
detections includes determining a target detection score for each pixel in
each of one or more images for each of one or more targets. A region around
one or more of the pixels with the determined detection scores which are
higher than the determined detection scores for the remaining pixels in each
of the one or more of images is identified. An object based score for each
of the identified regions in each of the one or more images is determined.
The one or more identified regions with the determined object based score
for each region is provided.
‘489 Patent at 1. Figure 2 of the ‘489 Patent provides an exemplary example of the method for
target detection as shown below:
4
Id. at 3.
The ‘489 Patent provides that the method for target detection involves five steps. See id.
at 4:45-6:27. First, obtaining the images. Id. at 4:45-4:50. Second, applying a target detection
algorithm to determine a target detection score for each pixel. Id. at 4:51-4:60. Third,
determining an object-based score for identified regions from the determined target detection
scores (although other types of scores for other identification aspects could be determined). Id.
at 5:3-5:10. Fourth, obtaining geographic location information associated with each of the
images at capture. Id. at 6:5-6:11. And, lastly, the fifth step involves providing one or more
identified regions with the determined object-based score for each region. Id. at 6:16-6:27.
The ‘489 Patent also provides that each step of the process described above is performed
using the exemplary example of the target detection processing apparatus contained in the ‘489
Patent as shown below:
5
Id. at 2.
2. Claims Of The ‘489 Patent
The ‘489 Patent consists of 33 claims, 30 of which are the subject of this action. See
generally Pl. Claim Constr. Br.; see also 4th Am. Compl. at ¶ 157. Specifically, the ‘489 Patent
consists of 12 independent claims and 21 dependent claims. Id. at 7. In this regard, Claims 2, 6,
7, 8, 9, 28 and 29 depend upon Claim 1; Claims 11, 15, 17, 18, 30 and 31 depend upon Claim 10;
and Claims 20, 24, 25, 26, 27, 32 and 33 depend upon Claim 19. See ‘489 Patent at 6:58-13:9.
Claim 1 is the first independent claim, and this claim provides:
A method for identification, sorting and ranking detections of one or more targets,
the method comprising:
determining with a target detection processing apparatus a target detection score
for each pixel of a spectral image for one or more targets by obtaining with the
target detection processing apparatus a signature for one or more of the targets
for the image, and applying with the target detection processing apparatus the
statistical target detection filter using the one or more obtained signatures to rank
each of the pixels by its statistical score;
identifying with the target detection processing apparatus a region around one or
more of the pixels with the determined detection scores which are higher than a
first score in said image;
determining with the target detection processing apparatus an object-based spectral
identification score for each of the identified regions in said image; and
providing with the target detection processing apparatus the one or more identified
regions with the determined object-based score for each region.
‘489 Patent at 6:57-7:10.
6
Claim 3 is the second independent claim, and this claim provides:
A method for identification, sorting and ranking detections of one or more targets,
the method comprising:
determining with a target detection processing apparatus a target detection score
for each pixel in each of one or more images for each of one or more targets;
identifying with the target detection processing apparatus a region around one or
more of the pixels with the determined detection scores which are higher than
a first score in each of the one or more of images;
determining with the target detection processing apparatus an object-based score
for each of the identified regions in each of the one or more images; and
providing with the target detection processing apparatus the one or more identified
regions with the determined object-based score for each region, wherein the
determining a target detection score further comprises:
obtaining with the target detection processing apparatus a signature for one or more
of the targets for each of the one or more images; and
applying with the target detection processing apparatus the statistical target
detection filter using the one or more obtained signatures to rank each of the
pixels by a number of standard deviations from a mean for each of the one or
more images to determine the statistical deviation score.
Id. at 7:19-7:43.
Claim 4 is the third independent claim, and this claim provides:
A method for identification, sorting and ranking detections of one or more targets,
the method comprising:
determining with a target detection processing apparatus a target detection score
for each pixel in each of one or more images for each of one or more targets;
identifying with the target detection processing apparatus a region around one or
more of the pixels with the determined detection scores which are higher than a
first score in each of the one or more of images;
determining with the target detection processing apparatus an object-based score
for each of the identified regions in each of the one or more images; and
providing with the target detection processing apparatus the one or more identified
regions with the determined object-based score for each region, wherein the
identifying further comprises:
masking out from each of the regions with the target detection processing apparatus
the one or more of the pixels in each of the one or more images which have the
highest determined statistical detection scores in each of the one or more images;
selecting with the target detection processing apparatus one or of the pixels which
are end members for each of the regions; and
identifying with the target detection processing apparatus a convex hull of the
selected end members as a boundary for the one or more regions for each of the
one or more of images.
Id. at 7:44-8:4.
7
Claim 5 is the fourth independent claim, and this claim provides:
A method for identification, sorting and ranking detections of one or more targets,
the method comprising:
determining with a target detection processing apparatus a target detection score
for each pixel in each of one or more images for each of one or more targets;
identifying with the target detection processing apparatus a region around one or
more of the pixels with the determined detection scores which are higher than a
first score in each of the one or more of images;
determining with the target detection processing apparatus an object-based score
for each of the identified regions in each of the one or more images; and
providing with the target detection processing apparatus the one or more identified
regions with the determined object-based score for each region, wherein the
determining the object based score further comprises:
unmixing with the target detection processing apparatus the pixel with highest
determined statistical detection score in each of the identified regions by finding
one or more abundances to determine pixel spectra; and
comparing with the target detection processing apparatus target spectra for each of
the one or more targets with the determined pixel spectra to determine the object
based score for each of the identified regions.
Id. at 8:5-8:29.
Claim 10 is the fifth independent claim, and this claim provides:
A non-transitory computer readable medium having stored thereon instructions for
identification, sorting and ranking detections of one or more targets comprising
machine executable code which when executed by at least one processor, causes
the processor to perform steps comprising:
determining a target detection score for each pixel in a spectral image for each of
one or more targets by obtaining a signature for one or more of the targets for
the image, and applying the statistical target detection filter using the one or
more obtained signatures to rank each of the pixels by its statistical score;
identifying a region around one or more of the pixels with the determined detection
scores which are higher than a first score in said image;
determining an object-based spectral identification score for each of the identified
regions in said image; and
providing the one or more identified regions with the determined object-based
spectral identification score for each region.
Id. at 8:46-8:64.
Claim 12 is the sixth independent claim, and this claim provides:
A non-transitory computer readable medium having stored thereon instructions for
identification, sorting and ranking detections of one or more targets comprising
8
machine executable code which when executed by at least one processor, causes
the processor to perform steps comprising:
determining a target detection score for each pixel in each of one or more images
for each of one or more targets;
identifying a region around one or more of the pixels with the determined detection
scores which are higher than a first score in each of the one or more of images;
determining an object-based score for each of the identified regions in each of the
one or more images; and
providing the one or more identified regions with the determined object-based score
for each region, wherein the determining a target detection score further
comprises:
obtaining a signature for one or more of the targets for each of the one or more
images; and
applying the statistical target detection filter using the one or more obtained
signatures to rank each of the pixels by a number of standard deviations from a
mean for each of the one or more images to determine the statistical deviation
score.
Id. at 9:3-9:24.
Claim 13 is the seventh independent claim, and this claim provides:
A non-transitory computer readable medium having stored thereon instructions for
identification, sorting and ranking detections of one or more targets comprising
machine executable code which when executed by at least one processor, causes
the processor to perform steps comprising:
determining a target detection score for each pixel in each of one or more images
for each of one or more targets;
identifying a region around one or more of the pixels with the determined detection
scores which are higher than a first score in each of the one or more of images;
determining an object-based score for each of the identified regions in each of the
one or more images; and
providing the one or more identified regions with the determined object-based score
for each region, wherein the identifying further comprises:
masking out from each of the regions the one or more of the pixels in each of the
one or more images which have the highest determined statistical detection
scores in each of the one or more images;
selecting one or of the pixels which are end members for each of the regions; and
identifying a convex hull of the selected end members as a boundary for the one or
more regions for each of the one or more of images.
Id. at 9:25-9:48.
Claim 14 is the eighth independent claim, and this claim provides:
A non-transitory computer readable medium having stored thereon instructions for
identification, sorting and ranking detections of one or more targets comprising
9
machine executable code which when executed by at least one processor, causes
the processor to perform steps comprising:
determining a target detection score for each pixel in each of one or more images
for each of one or more targets;
identifying a region around one or more of the pixels with the determined detection
scores which are higher than a first score in each of the one or more of images;
determining an object-based score for each of the identified regions in each of the
one or more images; and
providing the one or more identified regions with the determined object-based score
for each region, wherein the determining the object based score further
comprises:
unmixing the pixel with highest determined statistical detection score in each of the
identified regions by finding one or more abundances to determine pixel spectra;
and
comparing target spectra for each of the one or more targets with the determined
pixel spectra to determine the object based score for each of the identified
regions.
Id. at 9:49-10:3.
Claim 19 is the ninth independent claim, and this claim provides:
A target detection processing apparatus comprising:
one or more processors;
a memory coupled to the one or more processors which are configured to execute
programmed instructions stored in the memory comprising:
determining a target detection score for each pixel in a spectral image for each of
one or more targets by obtaining a signature for one or more of the targets for
the image, and applying the statistical target detection filter using the one or
more obtained signatures to rank each of the pixels by its statistical score;
identifying a region around one or more of the pixels with the determined detection
scores which are higher than a first score in said image;
determining an object-based spectral identification score for each of the identified
regions in said image; and
providing the one or more identified regions with the determined object-based
spectral identification score for each region.
Id. at 10:18-10:37.
Claim 21 is the tenth independent claim, and this claim provides:
A target detection processing apparatus comprising:
one or more processors;
a memory coupled to the one or more processors which are configured to execute
programmed instructions stored in the memory comprising:
determining a target detection score for each pixel in each of one or more images
for each of one or more targets;
10
identifying a region around one or more of the pixels with the determined detection
scores which are higher than a first score in each of the one or more of images;
determining an object-based score for each of the identified regions in each of the
one or more images; and
providing the one or more identified regions with the determined object-based score
for each region, wherein the one or more processors is further configured to
execute programmed instructions stored in the memory for the determining a
target detection score further comprising:
obtaining a signature for one or more of the targets for each of the one or more
images; and
applying the statistical target detection filter using the one or more obtained
signatures to rank each of the pixels by a number of standard deviations from a
mean for each of the one or more images to determine the statistical deviation
score.
Id. at 10:45-11:3.
Claim 22 is the eleventh independent claim, and this claim provides:
A target detection processing apparatus comprising:
one or more processors;
a memory coupled to the one or more processors which are configured to execute
programmed instructions stored in the memory comprising:
determining a target detection score for each pixel in each of one or more images
for each of one or more targets;
identifying a region around one or more of the pixels with the determined detection
scores which are higher than a first score in each of the one or more of images;
determining an object-based score for each of the identified regions in each of the
one or more images; and
providing the one or more identified regions with the determined object-based score
for each region, wherein the one or more processors is further configured to
execute programmed instructions stored in the memory for the identifying
further comprising:
masking out from each of the regions the one or more of the pixels in each of the
one or more images which have the highest determined statistical detection
scores in each of the one or more images;
selecting one or of the pixels which are end members for each of the regions; and
identifying a convex hull of the selected end members as a boundary for the one or
more regions for each of the one or more of images.
Id. at 11:4-11:31.
Lastly, Claim 23 is the twelfth independent claim, and this claim provides:
A target detection processing apparatus comprising:
one or more processors;
11
a memory coupled to the one or more processors which are configured to execute
programmed instructions stored in the memory comprising;
determining a target detection score for each pixel in each of one or more images
for each of one or more targets;
identifying a region around one or more of the pixels with the determined detection
scores which are higher than a first score in each of the one or more of images;
determining an object-based score for each of the identified regions in each of the
one or more images; and
providing the one or more identified regions with the determined object-based score
for each region, wherein the one or more processors is further configured to
execute programmed instructions stored in the memory for the determining the
object based score further comprising:
unmixing the pixel with highest determined statistical detection score in each of the
identified regions by finding one or more abundances to determine pixel spectra;
and
comparing target spectra for each of the one or more targets with the determined
pixel spectra to determine the object based score for each of the identified
regions.
Id. at 11:32-11:57.
3. The Court’s Construction Of The Terms “Object-Based
Spectral Identification Score” And “Object-Based Score”
On March 7, 2019, the Court issued a Memorandum Opinion and Order on Claim
Construction that defined, among other things, the claim term or phrase “object-based spectral
identification score,” found in Claims 1, 10 and 19, and the claim term or phrase “object-based
score,” found in Claims 3, 4, 5, 12, 13, 14, 21, 22 and 23. See Mar. 7, 2019, Claim Constr. Mem.
Op. and Order at 32. The Court construed these terms to mean “any metric that is computed
from the pixels in an identified region using a process that provides better understanding of the
material or object in the region.” Id.
4. The ARCHER System
Also relevant to the parties’ cross-motions for summary judgment on patent invalidity
issues is the ARCHER system. The Civil Air Patrol ARCHER Hyperspectral Sensor System
(the “ARCHER system”) is an airborne real-time cueing hyperspectral enhanced reconnaissance
system procured by the Air Force to increase its search and rescue mission capability. See Def.
Br. Ex. I at US_003214; see also B. Stevenson et al., The Civil Air Patrol ARCHER
Hyperspectral Sensor System, 5787 Proc. SPIE 17 (2005). The ARCHER system incorporates
an onboard data processing system to perform numerous real-time processing functions,
12
including “data acquisition and recording, raw data correction, target detection, cueing and
chipping, precision image geo-registration, and display and dissemination of image products and
target cue information.” Id. In addition, the ARCHER system contains, among other things, an
advanced hyperspectral imaging system and high-resolution camera. Id. at US_003216. The
system also contains an on-board real-time processor for data calibration, geo-rectification, target
detection, display and recording. Id. Figure 1 below shows the ARCHER system’s imaging
geometry.
Id. at US_003217.
The Civil Air Patrol ARCHER Hyperspectral Sensor System reference states that “[u]pon
detection of a possible ground target by one of the ARCHER spectral algorithms, the processor
extracts a subregion of image data surrounding that point from each sensor.” Id. at US_003220.
The reference also states that:
Each of these images is geo-registered and cropped to create a 256 x 256
pixel chip of the target area. Finally, the two chips are precisely aligned via
a scene-based correlation shift measurement, and then fused, by combining
the three-color information of the HSI chip with the higher spatial resolution
of the HRI. All three chips—HSI, HRI and Fused—are sent to the Chip
Viewer window (Figure 4) for operator review. The fused chip is also
overlaid onto the GeoPaint window at the exact location of the detected
target . . . .
Id. The Air Force developed the ARCHER system in 2004 and deployed the system in 2005.
Def. Br. Ex. A at ¶ 54.
5. The Stocker And Jones Reports
Both parties have retained experts who have provided expert reports on the priority date
for the ‘489 Patent and whether the claims of the ‘489 Patent are invalid for lack of novelty,
13
obviousness, or indefiniteness. See generally Def. Br. Ex. A (“Stocker Report”); Def. Br. Ex. B
(“Jones Report”).
The government’s expert, Alan Stocker, opines in his report that: (1) the priority date for
the ‘489 Patent is January 28, 2011, the date on which the application that resulted in the patent
was filed, and (2) the claims of the ‘489 Patent are not novel, are obvious in light of prior art and
are indefinite. See generally Stocker Report.
Specifically, with regards to the priority date for the ‘489 Patent, Mr. Stocker opines that
GTA cannot rely upon the filing date for the ‘065 Provisional Application to establish the
priority date for the ‘489 Patent, because the ‘894 Application, which resulted in the ‘489 Patent
filed on January 28, 2011, is “substantially different from the ‘065 Provisional Application and
contains descriptive material and claims not included in the ’065 Provisional Application.”
Stocker Report at ¶¶ 31-32. In this regard, Mr. Stocker opines that the difference in the titles of
the two documents and the addition of the term “identification” to the ’894 Application title—as
well as the references to “identification scores” and “advanced material identification” in the text
of the ’894 Application—“provide strong evidence that the two filings do not describe the same
invention.” Id. at ¶ 33 (noting that the ’065 Provisional Application is titled “Methods for
Object-Based Sorting and Ranking of Target Detections and Devices Thereof,” whereas the ’894
Application is titled “Methods for Object-Based Identification, Ranking and Sorting of Target
Detections and Apparatuses Thereof”). And so, Mr. Stocker opines that the priority date for the
‘489 Patent is January 28, 2011, when the ‘894 Application was filed. Id. at ¶ 41.
With regards to the issue of patent invalidity, Mr. Stocker observes in his report that:
The ’489 Patent pertains to automated methods and means for detecting and
identifying desired targets or materials with known signatures in digitized
spectral imagery. The overall process is set out in Fig. 2 of the ’489 Patent
and the corresponding steps outlined in the Claim Construction
Memorandum Opinion and Order, the processing approach consists of the
following five top-level elements:
• Obtain Images
• Apply Statistical Detection Filtering
• Identify Regions and Determine Object-Based Scores
• Determine Geographical Information for Identified Regions
• Provide Identified Regions and Object Scores with Geographical
Information
14
Id. at ¶ 42. Mr. Stocker also opines that the claims of the ’489 Patent:
[D]isclose steps encompassing these five major elements across three
categories: 1) a “method” (i.e. an algorithm), Claims 1 through 9, 28 and
29; 2) a “computer-readable medium having stored thereon instructions”
(i.e. computer code implementing the algorithm), Claims 10 through 18, 30
and 31; and 3) an “apparatus” (i.e. processor hardware implementing the
algorithm), 19 through 27, 32 and 33.
Id. at ¶ 43. And so, Mr. Stocker concludes that each of the aforementioned steps contained in the
‘489 Patent was previously known in the art. Id. at ¶ 44.
In this regard, Mr. Stocker states that “[n]umerous hyperspectral sensor systems
predating January 28, 2011 had built-in capabilities for acquiring image data for purposes of
recording, correction and calibration, and higher-level processing functions including target
detection,” including COMPASS, WARHORSE and ARCHER. Id. at ¶ 46. He also states that
“[a]n early demonstration of real-time detection filtering in an operational hyperspectral imaging
application was the ARCHER system developed for the Civil Air Patrol in 2004 and deployed
the following year.” Id. at ¶ 54.
Mr. Stocker also states that:
Claim 8 refers to a method for providing geographical information for
identified regions in hyperspectral imagery. Geolocation of images and
subregions within images was by no means a novel method or capability to
a Person of Ordinary Skill in the Art [(“POSITA”)] prior to January 28,
2011. To cite a typical example, the Civil Air Patrol ARCHER system
deployed in 2005 utilized platform inertial measurement unit (IMU) data
along with a sensor model to calculate accurate geolocations for targets
detected in its hyperspectral imagery.
Id. at ¶ 62. Lastly, Mr. Stocker states that:
Claims 8, 9 and 18 call for “providing” the detected and identified regions
with their associated object scores and geolocation information. Reporting
georeferenced target detection and/or identification results to a user,
operator or analyst was a built-in function of several hyperspectral
processing tools and processor systems that existed prior to January 28,
2011.
Id. at ¶ 63. And so, he concludes that “[v]arious sensor systems which were developed and
operating before the priority date, including CAP ARCHER, HyCAS and ACES Hy, utilized one
15
or more of these methods to provide hyperspectral object cues with associated scores and
locations to operators and analysts. Id.With regards to determining an object-based spectral identification score, Mr. Stocker
opines that “[o]bject-based scoring, as described in Claim 1, is a process of comparing
determined (i.e. background-subtracted) pixel spectra with hypothesized target signatures to
compute and rank object-based identification scores associated with each of those signatures for
every object [region of interest] considered.” Id. at ¶ 74. With regard to the limitation found in
the claims of the ‘489 Patent regarding providing the one or more regions with the determined
object-based score, Mr. Stocker also opines that “[t]his step of Claim 1 merely provides (i.e.
reports) the previously determined object-based identification scores associated with each of
those signatures for every object [region of interest].” Id. at ¶ 76. And so, Mr. Stocker opines
that Claim 1 of the ‘489 Patent is anticipated by the ARCHER system. Id. at ¶ 77.
In this regard, he observes that:
[T]he ARCHER system performed numerous real-time processing
functions including data acquisition and recording, raw data correction,
target detection, cueing and chipping, precision image geo-registration, and
display and dissemination of image products and target cue information.
The ARCHER system operator was able to select desired signatures from
an on-board library to initiate adaptive matched filters that automatically
cued probable target objects, produced resolution-enhanced image chips
centered on those object cues, and provided tabulated information about the
cues including normalized detector scores and geolocations. Although not
explicitly noted in the reference, I know from experience that the cued
objects could be easily ranked by their respective detector scores simply by
clicking on the displayed column header for those scores (similar to the way
one sorts entries in a spreadsheet column). . . .
ARCHER also defined local image regions surrounding pixels or
contiguous clusters of pixels that exceeded a detection threshold. These
regions were referred to as “chips” and were automatically resolution-
enhanced, recorded and displayed in color to the sensor operator to indicate
the location of a detected object and its local scene context. By generating
these detection-cued regions, ARCHER anticipated the use of methods for
detailed post-detection analysis of detected objects based on spatial and
spectral information, including but not limited to target identification based
on spectral signatures.
Id. at ¶¶ 77-79.
16
Mr. Stocker also opines that Claims 2, 4, 5, 6, 7, 8, 9, 28 and 29 of the ‘489 Patent are not
novel and are also anticipated by the ARCHER system. Id. at ¶¶ 81-98. With regards to Claims
2 and 4, he opines that ARCHER and another system, ACES Hy, anticipate the statistical target
detection filter application step in Claim 2. Id. at ¶¶ 82, 86. With regards to Claim 5, Mr.
Stocker also opines that the ARCHER and ACES Hy systems performed detected target region
generation via their built-in “chipping” functions, and he observes that:
[U]nmixing was a conventional practice and would be well-known to the
[POSITA]. And . . . the ARCHER and ACES Hy systems anticipated
further exploitation of identified regions associated with detected targets by
incorporating automatic ‘chipping’ functions.
Id. at ¶ 87.
Mr. Stocker further opines regarding Claims 6 and 7 that “the methods of obtaining
images were widely known,” prior to January 28, 2011, “the ARCHER and ACES Hy systems
performed this step” and, with regards to Claim 8, the “additional step of providing geographical
information for target regions in spectral images was routine in the art by January 28, 2011, as
evidenced by the fact that the ARCHER and ACES Hy systems performed this function
automatically.” Id. at ¶¶ 89, 92. Lastly, with regards to Claims 28 and 29, Mr. Stocker opines
that the process described in Claim 28 “was a conventional practice and would be well-known to
[POSITAs] before January 28, 2011” and that “unmixing was a conventional practice and would
be well-known to the [POSITA] before January 28, 2011.” Id. at ¶¶ 96, 98.
Mr. Stocker also opines that the ‘489 Patent is invalid due to obviousness. In this regard,
Mr. Stocker opines that the methods described in the claims of the ‘489 Patent were obvious in
the context of prior art in the field of hyperspectral image exploitation. Id. at ¶ 99. Specifically,
with regards to Claim 1, Mr. Stocker states that the use of multiple statistical matched filters to
detect target signals with unknown parameters or signatures “is a well-known technique with a
long history of applications to a variety of sensor systems.” Id. at ¶ 101.
Lastly, with regards to indefiniteness, Mr. Stocker opines, among other things, that the
claims of the ‘489 Patent are indefinite with regards to the claim limitations: (1) “identify
regions and determine object-based scores;” (2) “determine geographic information for identified
regions;” and (3) “provide identified regions and object scores with geographical information.”
Id. at ¶¶ 134-142. Specifically, Mr. Stocker opines that, Claims 4, 5 and 29 of the ’489 Patent
17
“describe a generic spectral unmixing process in which endmembers are determined from one or
more selected pixels in each identified region to define a convex hull (i.e. simplex), and
subsequently used to calculate abundances (i.e. fractional weights) for the endmembers to model
detected pixel spectra.” Id. at ¶ 134. But, he observes that “it is not stated how the endmembers
are to be determined, which is itself a major issue in the literature on spectral unmixing.” Id. at ¶
135. Mr. Stocker also opines that “[t]he process by which the endmember abundance weights
for pixel spectra are to be calculated is also not described in the claims of the ’489 Patent.” Id. at
¶ 136. And so, Mr. Stocker opines that “[s]ince critical details are missing from the teachings of
Claims 4, 5 and 29 of the ’489 Patent, a [POSITA] could not be reasonably certain of their
applicability.” Id. at ¶ 137.
GTA’s expert, Dr. Creed F. Jones III, disagrees with Mr. Stocker’s opinions about the
priority and conception dates and the validity of the ‘489 Patent and he opines in his report that:
(1) the priority date for the ‘489 Patent is January 29, 2010, when the ‘065 Provisional
Application was filed; (2) the conception date of the ‘489 Patent is at least as early as November
22, 2008; and (3) the ‘489 Patent is not invalid due to lack of novelty, obviousness, or
indefiniteness. See generally Jones Report.
With regards to the priority date for the ‘489 Patent, Dr. Jones opines that a POSITA
would conclude that the inventor of the ‘489 Patent had possession of the claimed invention at
the time the ‘065 Provisional Application was filed. Id. at ¶ 137. In this regard, Dr. Jones
observes that the ‘065 Provisional Application “includes screen shots and output from an actual
working embodiment of the invention claimed in the ’489 Patent.”3 Id.Dr. Jones also opines that the conception date of the ’489 Patent is “at least as early as
November 22, 2008,” the date of the last modification of the Unsolicited Draft Proposal. Id. at ¶
3Dr. Jones further observes that paragraphs [0006]-[0008] of the ‘065 Provisional Application “teach the
same background removal and error (or spectral fit) object-based identification method and formulas as
set forth in column 5 of the ’489 Patent” and that pages 28-34 of the ‘065 Provisional Application show
“NINJA output that ranks multiple identified targets and provides error estimates, real detections, and
possible confusers for each target.” Def. Br. Ex B at ¶¶ 143, 146. And so, Dr. Jones opines that a
POSITA would recognize that Dr. Basener had possession of an identification algorithm as of the filing
date of the Provisional Application, making the priority date for the ‘489 Patent being January 29, 2010,
the filing date of the ‘065 Provisional Application. Id. at ¶¶ 137, 142.
18
149. And so, Dr. Jones concludes that a POSITA would understand that Dr. Basener had
conceived his invention at least as early as November 22, 2008. Id. at ¶ 153.
With regards to the issue of patent invalidity, Dr. Jones first opines that the government
has not established that the ARCHER system anticipates the claims of the ‘489 Patent for the
following five reasons: (1) Mr. Stocker does not identify the specific version of the ARCHER
system that he relies upon as prior art, nor the date on which that version was first publicly used;
(2) Mr. Stocker’s description of the ARCHER system relies almost entirely upon his own
subjective memory of the ARCHER system, not a single prior art reference or system; (3) Mr.
Stocker improperly combines the disclosures of the Civil Air Patrol ARCHER Hyperspectral
Sensor System reference and an unspecified version or versions of the ARCHER system with his
own, non-public, subjective knowledge of the ARCHER system; (4) Mr. Stocker does not identify
where in any prior art reference each claim limitation is found; and (5) the only specific citation
that Mr. Stocker provides for any of these references demonstrates that the ARCHER system did
not explicitly or inherently disclose ranking or target identification. Id. at ¶¶ 248-252.
Specifically relevant to the parties’ cross-motions for summary judgment, Dr. Jones opines that
the ARCHER system is “missing two limitations of Claim 1 [of the ‘489 Patent,] and thus
cannot anticipate that claim.” Id. at ¶ 252 (emphasis omitted). And so, Dr. Jones opines that “a
[POSITA] would not understand that ranking of target detections was ‘necessarily present’ in [the
ARCHER system].” Id.With regards to obviousness, Dr. Jones also opines that Mr. Stocker has not shown that
the claims of the ‘489 Patent are obvious, because Mr. Stocker fails to demonstrate that: (1)
prior art references or prior public uses disclosed or taught each and every limitation of Claim 1,
and (2) it would have been obvious for a POSITA to combine the teachings as is required to
demonstrate that a combination of references or uses renders a claim obvious. Id. at ¶ 294.
Lastly, with regards to indefiniteness, Dr. Jones opines that the claims of the ’489 Patent are not
indefinite, because they are not means-plus-function terms, and, even if the claims could be
considered to be means-plus-function terms, “the specification would disclose adequate
corresponding structure.” Id. at ¶ 476.
B. Relevant Procedural Background
On July 24, 2020, the government filed a brief on patent invalidity. See generally Def.
19
Br. On August 7, 2020, GTA filed a response to the government’s brief on patent invalidity and
a motion for summary judgment on the issues of the conception and priority dates for the ‘489
Patent and patent invalidity. See generally Pl. Resp. and MSJ. On August 21, 2020, the
government filed a reply in support of its brief on patent invalidity. See generally Def. Reply Br.
On September 4, 2020, the government filed a response and opposition to GTA’s motion
for summary judgment and a cross-motion for summary judgment on the issues of the conception
and priority dates for the ‘489 Patent and patent invalidity. See generally Def. MSJ. On October
2, 2020, GTA filed a reply in support of its motion for summary judgment and a response and
opposition to the government’s cross-motion for summary judgment. See generally Pl. Reply.
On October 9, 2020, the government filed a reply in support of its cross-motion for summary
judgment. See generally Def. Reply.
The Court held oral arguments on the parties’ cross-motions for summary judgment on
March 24, 2021. See generally Tr.
The parties’ cross-motions for summary judgment having been fully briefed, the Court
resolves the pending motions.
III. LEGAL STANDARDS
A. Patent Infringement Claims Against The Government
Title 28, United States Code, section 1498(a) waives the government’s sovereign
immunity and provides a remedy “[w]henever an invention described in and covered by a patent
of the United States is used or manufactured by or for the United States without license of the
owner thereof or lawful right to use or manufacture the same.” 28 U.S.C. § 1498(a); see also
Astornet Techs. Inc. v. BAE Sys., Inc., 802 F.3d 1271, 1277 (Fed. Cir. 2015). In this regard,
Section 1498(a) provides that:
[T]he owner's remedy shall be by action against the United States in the
United States Court of Federal Claims for the recovery of his reasonable
and entire compensation for such use and manufacture.
Id.B. RCFC 56
20
Pursuant to RCFC 56, a party is entitled to summary judgment when there is “no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC
56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Biery v. United States,
753 F.3d 1279, 1286 (Fed. Cir. 2014). A dispute is “genuine” when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. A
fact is “material” if it could “affect the outcome of the suit under the governing law.” Id.The moving party bears the burden of demonstrating the absence of any genuine issues of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). And so, ‘“the inferences to be
drawn from the underlying facts . . . must be viewed in the light most favorable to the party
opposing the motion.”’ Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
In making a summary judgment determination, the Court does not weigh the evidence
presented, but instead must “determine whether there is a genuine issue for trial.” Anderson, 477
U.S. at 249; see also Am. Ins. Co. v. United States, 62 Fed. Cl. 151, 154 (2004); Agosto v. INS,
436 U.S. 748, 756 (1978) (“[A trial] court generally cannot grant summary judgment based on its
assessment of the credibility of the evidence presented . . . .”) (citations omitted). Given this, the
Court may grant summary judgment when “the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party.” Matsushita, 475 U.S. at 587.
The above standard applies when the Court considers cross-motions for summary
judgment. Principal Life Ins. Co. & Subs. v. United States, 116 Fed. Cl. 82, 89 (2014); see also
Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010). And so, when both parties
move for summary judgment, ‘“the court must evaluate each party’s motion on its own merits,
taking care in each instance to draw all reasonable inferences against the party whose motion is
under consideration.”’ Abbey v. United States, 99 Fed. Cl. 430, 436 (2011) (quoting Mingus
Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)).
C. Patent Invalidity And Section 102
An invalid patent cannot be infringed. Commil USA, LLC v. Cisco Sys., Inc., 135 S. Ct.
1920, 1931 (2015) (Scalia, J., dissenting on other grounds) (recognizing the cardinal maxim that
“[i]t follows, as night the day, that only valid patents can be infringed. To talk of infringing an
invalid patent is to talk nonsense.”). And so, the Court need not reach the issue of patent
21
infringement if the claims of the patent are found to be invalid, based upon clear and convincing
evidence. See, e.g., Del Mar Eng’g Lab’ys v. United States, 524 F.2d 1178, 1186 (Ct. Cl. 1975)
(“[i]n view of the conclusion on validity, it is unnecessary to reach the question of infringement,
for an invalid patent cannot be infringed.”) (internal citation omitted); Sparton Corp. v. United
States, 89 Fed. Cl. 196, 242 (2009) (declining to decide infringement after finding two patents
invalid for obviousness, and thus holding that the plaintiff “no longer has a claim under 28
U.S.C. § 1498”).4
An issued patent is presumed valid—novel, nonobvious, useful, and containing
patentable subject matter—because the “[US]PTO [is] presumed to do its job.” Microsoft Corp.
v. I4I Ltd. P’ship, 564 U.S. 91, 97 (2011) (citation omitted); 35 U.S.C. § 282. To rebut this
presumption, an accused infringer must prove its affirmative defense of invalidity by clear and
convincing evidence. Takeda Chem. Indus., Ltd. v. Alphapharm Pty., Ltd., 492 F.3d 1350, 1355
(Fed. Cir. 2007); Norian Corp. v. Stryker Corp., 363 F.3d 1321, 1326 (Fed. Cir. 2004); see also
Newell Cos., Inc. v. Kenney Mfg. Co., 864 F.2d 757, 767 (Fed. Cir. 1988). In this regard, the
Federal Circuit has held that a person cannot obtain a patent unless the invention is new.
Titanium Metals Corp. v. Banner, 778 F.2d 775, 780 (Fed. Cir. 1985) (“[t]he patent law imposes
certain fundamental conditions for patentability, paramount among them being the condition that
what is sought to be patented, as determined by the claims, be new.”). The pre-AIA version of
Section 102 provides, in relevant part, that:
A person shall be entitled to a patent unless –
(a) the invention was known or used by others in this country, or patented
or described in a printed publication in this or a foreign country, before
the invention thereof by the applicant for patent, or
(b) the invention was patented or described in a printed publication in this
or a foreign country or in public use or on sale in this country, more than
one year prior to the date of the application for patent in the United
States[.]
35 U.S.C. § 102(a)-(b) (2006). And so, a patent claim is invalid for a lack of novelty, or
anticipation, under 35 U.S.C. § 102, if each and every element set forth in the claim is found,
4
The pre-America Invents Act versions of 35 U.S.C. § 102 is applicable to this case.
22
either expressly or inherently, in a single reference. Atlas Powder Co. v. Ireco, Inc., 190 F.3d
1342, 1346 (Fed. Cir. 1999).
Although anticipation normally requires that a prior art reference disclose each and every
limitation of a claim, the Federal Circuit has recognized that “a prior art reference may anticipate
when the claim limitation or limitations not expressly found in that reference are nonetheless
inherent in it.” Id. at 1347. Given this, “[u]nder the principles of inherency, if the prior art
necessarily functions in accordance with, or includes, the claimed limitations, it anticipates.” Id.And so, “if granting patent protection on the disputed claim would allow the patentee to exclude
the public from practicing the prior art, then that claim is anticipated, regardless of whether it
also covers subject matter not in the prior art.” Id. at 1346 (citing Titanium Metals Corp., 778
F.2d at 781).
D. Patent Priority Date
Lastly, to ascertain the effective filing date for a patent, the Court must determine a
patent’s priority with respect to earlier patent applications. 35 U.S.C. § 120 (2006). Generally,
the effective filing date of a patent is presumed to be the filing date apparent on the face of the
patent, unless the patent examiner found otherwise during prosecution. See PowerOasis, Inc. v.
T-Mobile USA, Inc., 522 F.3d 1299, 1305-06 (Fed. Cir. 2008). But, a patent owner can rebut this
presumption by “com[ing] forward with evidence to prove entitlement to claim priority to an
earlier filing date,” such that the patent-in-suit should be deemed as filed on the filing date of its
earlier related patents. Id.; see also Cordance Corp. v. Amazon.com, Inc., 658 F.3d 1330, 1334
(Fed. Cir. 2011).
“[T]he test for conception is whether the inventor had an idea that was definite and
permanent enough that one skilled in the art could understand the invention.” Burroughs
Wellcome Co. v. Barr Lab’ys, Inc., 40 F.3d 1223, 1228 (Fed. Cir. 1994). The Federal Circuit has
defined a “definite and permanent” idea as an idea that is a “specific, settled idea, a particular
solution to the problem at hand, not just a general goal or research plan.” Id.; see also Coleman
v. Dines, 754 F.2d 353, 359 (Fed. Cir. 1985) (“[i]t is settled that in establishing conception a
party must show possession of every feature recited in the count, and that every limitation of the
count must have been known to the inventor at the time of the alleged conception.”) (citation
omitted).
23
IV. LEGAL ANALYSIS
The government has filed a brief on patent invalidity and the parties have filed cross-
motions for summary judgment on the priority and conception dates for the ‘489 Patent and
several issues related to the validity of the ‘489 Patent. Specifically, the parties present the
following issues for resolution by the Court: (1) whether GTA has established a conception date
for the invention claimed in the ‘489 Patent of November 22, 2008; (2) whether GTA has
established a priority date of January 29, 2010, for the invention claimed in the ‘489 Patent; (3)
whether the claims of the ‘489 Patent are anticipated by the ARCHER system; (4) whether the
‘489 Patent is invalid due to obviousness; and (5) whether the ‘489 Patent is invalid due to
indefiniteness. See generally Def. Br.; Def. MSJ; Pl. Resp. and MSJ; 35 U.S.C. §§ 102, 103 and
112.
In its motion for summary judgment, GTA argues that the priority date for the ‘489
Patent is January 29, 2010, because a POSITA would conclude that the inventor of the ‘489
Patent had possession of the claimed invention at the time that the ‘065 Provisional Application
was filed. Pl. Resp. and MSJ at 38-41; see also Jones Report at ¶ 137. GTA also contends that
the conception date for the invention at issue is November 22, 2008, because a POSITA would
understand that Dr. Basener had conceived of the invention claimed in the ‘489 Patent by that
date. Pl. Resp. and MSJ at 34-38; see also Jones Report at ¶ 153.
The government counters that the priority date for the ‘489 Patent is the date on which
the application that resulted in the patent was filed—January 28, 2011. Def. MSJ at 2-3; see also
Stocker Report at ¶ 41. And so, the government argues that the Court should deny GTA’s
motion for summary judgment on these threshold issues. Def. MSJ at 3.
The government also presents three invalidity defenses in its cross-motion for summary
judgment. First, the government argues that the ‘489 Patent is invalid for a lack of novelty,
because the undisputed material facts in this case show that each claim of the patent was
anticipated by the ARCHER system. Def. MSJ at 3-4; see also Def. Br. at 12-13. Second, the
government argues that the ‘489 Patent is invalid for obviousness, because the methods
described in the claims of the ‘489 Patent were obvious within the context of prior art in the field
of hyperspectral image exploitation. Def. MSJ at 4-7; see also Def. Br. at 13-21. Lastly, the
government contends that the ‘489 Patent is also invalid for indefiniteness, because the claims of
24
the patent cover both apparatus and method of using the apparatus. Def. MSJ at 7-9; see also
Def. Br. at 21-27. And so, the government requests that the Court grant its cross-motion for
summary judgment on patent invalidity issues. Def. MSJ at 9.
GTA counters that the government has not shown that the ‘489 Patent is invalid for a lack
of novelty, non-obviousness, or indefiniteness. Specifically, GTA argues that the government
neither relies upon a single prior art reference, nor shows that the ARCHER system discloses an
“object-based score,” to establish by clear and convincing evidence that the claims of the patent
were anticipated. Pl. Resp. and MSJ at 12-18. GTA also argues that the government has not
provided evidence of key elements of its obviousness defense, including evidence of a
motivation to combine prior art. Id. at 18-26. Lastly, GTA argues that the government has not
shown that the claims of the ‘489 Patent are indefinite, because, among other things, no claims of
the ‘489 Patent cover both method and apparatus. Id. at 26-34. And so, GTA requests that the
Court deny the government’s cross-motion for summary judgment on these patent invalidity
issues. Pl. Reply at 8.
For the reasons discussed below, the undisputed material facts show that GTA has not
established a conception date of November 22, 2008, or a priority date of January 29, 2010, for
the ‘489 Patent. In addition, the undisputed material facts show that the ‘489 Patent is invalid
due to a lack of novelty, because the government has shown by clear and convincing evidence
that the ARCHER system anticipates each and every claim of the ‘489 Patent. And so, the Court
DENIES GTA’s motion for summary judgment and GRANTS-IN-PART the government’s
cross-motion for summary judgment. RCFC 56; 35 U.S.C. §§ 102 and 112.
A. GTA Has Not Established A Conception Date Of November 22, 2008
As an initial matter, GTA has not established a conception date of November 22, 2008,
for the ‘489 Patent. The Federal Circuit has held that “[t]he test for conception is whether the
inventor had an idea that was definite and permanent enough that one skilled in the art could
understand the invention.” Burroughs Wellcome Co. v. Barr Lab’ys, Inc., 40 F.3d 1223, 1228
(Fed. Cir. 1994). And so, to establish a conception date for the invention claimed in the ‘489
Patent, GTA must show that Dr. Basener had an idea that was definite and permanent enough
that one skilled in the art could understand the invention claimed in the ‘489 Patent on November
22, 2008. GTA has not made such a showing in this case.
25
To support its argument that the conception date for the invention claimed in the ‘489
Patent is November 22, 2008, GTA relies upon an Unsolicited Draft Proposal, last revised on
November 22, 2008, to show that Dr. Basener had conceived of the invention at issue by that
date. Pl. Resp. and MSJ at 34; see also Pl. Ex. D at ¶ 4; Def. Br. Ex. D. But, a careful review of
the Unsolicited Draft Proposal makes clear that this document is a plan for research that does not
describe the invention claimed in the ‘489 patent. See generally Def. Br. Ex. D.
Notably, the Unsolicited Draft Proposal states that it is a “proposal” to conduct basic
research into the mathematical foundations of target detection. Def. Br. Ex. D at 2 (“We propose
to conduct basic research into the mathematical foundations of target detection . . . .”). The
Unsolicited Draft Proposal presents a problem—the need to improve target detection algorithms
and methodology. Id. at 12-14 (discussing the “challenges in the current state-of-the-art target
detection”). But, a review of this document shows that the draft proposal does not provide the
specific solution claimed in the ‘489 patent. See id. at 14-19. In fact, the specific invention
claimed in the ‘489 Patent is not described anywhere in the Unsolicited Draft Proposal. See
generally id. Given this, the Unsolicited Draft Proposal does not establish that Dr. Basener had
an idea that was definite and permanent enough for a POSITA to understand the invention
claimed in the ‘489 Patent. Burroughs Wellcome Co., 40 F.3d at 1228. And so, the Court
DENIES GTA’s motion for summary judgment and GRANTS the government’s cross-motion
for summary judgment on this issue.5
B. GTA Has Not Established A Priority Date Of January 29, 2010
GTA also has not established a January 29, 2010, priority date for ‘489 Patent. The
Court presumes that the priority date for the ‘489 Patent is the filing date for the patent—January
25, 2011. PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 1305-06 (Fed. Cir. 2008).
But, GTA can rebut this presumption by “com[ing] forward with evidence to prove entitlement
to claim priority to an earlier filing date,” such that the patent-in-suit should be deemed as filed
5
The RIT invention plan and NINJA output upon which GTA also relies to show a conception date of
November 22, 2008, are both undated. Def. Br. at 5-6; Pl. Resp. and MSJ at 34-38 (not disputing that the
RIT invention plan and the NINJA output relied upon by GTA are undated). And so, neither of these
documents can establish a November 22, 2008, conception date for the ‘489 Patent.
26
on the filing date of its earlier related patents. Id. Again, GTA has not made such a showing
here.
GTA relies upon the ‘065 Provisional Application to show that the ‘489 Patent is entitled
to a January 29, 2010, priority date. But, a careful review of the ‘065 Provisional Application
shows that the ‘065 Provisional Application does not enable a POSITA to practice the invention
claimed in the ‘489 Patent, which includes target identification as well as target detection.6 For
example, the title of the ‘065 Provisional Application refers only to target detection and differs
from the title of the ‘489 Patent, which includes target identification. Pl. Ex. C at 2, 6, 11-12.
Indeed, as GTA acknowledges, target identification is not mentioned in any of the claims of the
‘065 Provisional Application. See id. at 50-51; Pl. Resp. and MSJ at 40 (“[n]otably, the absence
of the term ‘identification’ in the ‘065 Provisional [Application] is not surprising . . . .”).
In addition, the field, background and detailed description sections of the ‘065
Provisional Application also make clear that the ‘065 Provisional Application pertains only to
target detection. Pl. Ex. C at 12 (the field section states that “[t]his technology relates to methods
for object-based sorting and target detections and devices thereof”) (emphasis supplied); id. (the
background section states that “[t]arget detection in spectral digital imagery is the identification
of known material with a given target spectrum”) (emphasis supplied); id. at 14-15 (the detailed
description section states that “this Object-Based Sorting and Ranking of Target Detections . . .
technology is a new method for sorting and ranking target detection scores in multi-band spectral
imagery.”) (emphasis added).7 Given this, GTA has not shown that the ‘489 Patent is entitled to
an earlier priority date based upon the ‘065 Provisional Application. And so, the Court DENIES
GTA’s motion for summary judgment and GRANTS the government’s cross-motion for
summary judgment on this issue.8
6
GTA does not dispute that target identification and target detection are distinct concepts. See Pl. Resp.
and MSJ at 39-40.
7
The government also persuasively argues that the statement in the detailed description of the ‘065
Provisional Application that a “typical library may have 10-50 target signatures” further indicates that the
‘065 Provisional Application discusses only target detection, because a library sufficient for target
identification would require a much larger number of target signatures. Def. Br. at 7; Pl. Ex. C at 16; see
also Stocker Report at ¶ 35.
8
The Court is also unpersuaded by GTA’s argument that a POSITA would understand the error metric
referenced in paragraphs 0006-0008 and page 37 of the ‘065 Provisional Application to be an object-
27
C. The Claims Of The ‘489 Patent Are Anticipated
Turning to the merits of the parties’ arguments on patent invalidity, the government has
shown by clear and convincing evidence that each and every claim of the ‘489 Patent is
anticipated by the ARCHER system. And so, for the reasons discussed below, the Court
concludes that the ‘489 Patent is invalid for a lack of novelty. 35 U.S.C. § 102(a).
It is well-established that an invalid patent cannot be infringed. Commil USA, LLC v.
Cisco Sys., Inc., 135 S. Ct. 1920, 1931 (2015) (Scalia, J., dissenting on other grounds)
(recognizing the cardinal maxim that “[i]t follows, as night the day, that only valid patents can be
infringed. To talk of infringing an invalid patent is to talk nonsense.”). And so, if the
government can show that the ‘489 Patent is invalid, based upon clear and convincing evidence,
the Court need not reach the issue of patent infringement in this case. See, e.g., Del Mar Eng’g
Lab’ys v. United States, 524 F.2d 1178, 1186 (Ct. Cl. 1975) (“[i]n view of the conclusion on
validity, it is unnecessary to reach the question of infringement, for an invalid patent cannot be
infringed.”) (internal citation omitted); Sparton Corp. v. United States, 89 Fed. Cl. 196, 242
(2009) (declining to decide infringement after finding two patents invalid for obviousness, and
thus holding that the plaintiff “no longer has a claim under 28 U.S.C. § 1498”).
With regards to the first ground upon which the government argues that the ‘489 Patent is
invalid—lack of novelty, or anticipation—the Federal Circuit has held that a person cannot
obtain a patent unless the invention is new. Titanium Metals Corp. v. Banner, 778 F.2d 775, 780
(Fed. Cir. 1985) (“[t]he patent law imposes certain fundamental conditions for patentability,
paramount among them being the condition that what is sought to be patented, as determined by
the claims, be new.”). The pre-AIA version of Section 102, which applies to this case, also
provides that:
A person shall be entitled to a patent unless—
(a) the invention was known or used by others in this country, or
patented or described in a printed publication in this or a foreign country,
before the invention thereof by the applicant for patent, or
(b) the invention was patented or described in a printed publication in
based identification score. There is no mention of target identification, or an object-based score, in
paragraphs 0006-0008 of the ‘065 Provisional Application. See Pl. Ex. C at 15-16.
28
this or a foreign country or in public use or on sale in this country, more
than one year prior to the date of the application for patent in the United
States[.]
35 U.S.C. § 102(a)-(b) (2006). And so, the ‘489 Patent is invalid for a lack of novelty, or
anticipation under Section 102, if the government can show by clear and convincing evidence
that each and every element set forth in the claims of the patent is found, either expressly or
inherently, in a single reference. Atlas Powder Co. v. Ireco, Inc., 190 F.3d 1342, 1346 (Fed. Cir.
1999).
In this regard, the Federal Circuit has recognized that “a prior art reference may
anticipate when the claim limitation or limitations not expressly found in that reference are
nonetheless inherent in it.” Id. at 1347. And so, “if granting patent protection on the disputed
claim would allow the patentee to exclude the public from practicing the prior art, then that claim
is anticipated, regardless of whether it also covers subject matter not in the prior art.” Id. at 1346(citing Titanium Metals Corp., 778 F.2d at 781).
In this case, the government argues that the Civil Air Patrol ARCHER Hyperspectral
Sensor System—or the ARCHER system—is such a single reference. Specifically, the
government argues that the ARCHER system anticipates each of the five “top-level” elements
found in the ‘489 Patent—obtain images, apply statistical detection filtering, identify regions and
determine object-based scores, determine geographical information for identified regions and
provide identified regions and object-based scores with geographical information. Stocker
Report at ¶ 44; Def. Br. at 12-13. In this regard, the government contends that the ARCHER
system “performed ‘numerous real-time processing function[s] including data acquisition and
recording, raw data correction, target detection, cueing and chipping, precision image geo-
registration, and display and dissemination of images productions and target cue information.’”
Def. Br. at 12; Stocker Report at ¶ 54 (observing that “[a]n early demonstration of real-time
detection filtering in an operational hyperspectral imaging application was the ARCHER system
developed for the Civil Air Patrol in 2004 and deployed the following year.”). And so, the
government further contends that the ‘489 Patent is invalid due to a lack of novelty, because the
ARCHER system anticipates the use of methods for detailed post-detection analysis of detected
29
objects based upon spatial and spectral information. 9 Stocker Report at ¶¶ 77-79. For the
reasons set forth below, the Court agrees.
1. The ARCHER System Discloses An “Object-Based
Spectral Identification Score” And “Object-Based Score”
As an initial matter, the government has shown that the ARCHER system discloses an
“object-based spectral identification score” and “object-based score,” as described in Claims 1,
4, 5, 10, 13, 14, 19, 21, 22 and 23 of the ‘489 Patent. Several claims of the ‘489 Patent contain
the limitations “determining with the target detection processing apparatus an object-based
spectral identification score for each,” “determining . . . an object-based score for each of the
identified regions” and “providing with the target detection processing apparatus the one or more
identified regions with the determined object-based score for each region.” See, e.g., ‘489 Patent
at 7:5-7:10, 7:53-7:54. Given this, GTA’s primary rebuttal to the government’s anticipation
defense is that the ARCHER system does not disclose an “object-based spectral identification
score,” or an “object-based score,” as described in these two limitations. Pl. Resp. and MSJ at
12-17; see also ‘489 Patent at 6:57-7:10. GTA’s argument is belied by the undisputed material
facts regarding the ARCHER system.
First, the undisputed material facts show that the ARCHER system’s approach to target
detection includes determining an “object-based spectral identification score” and an “object-
based score,” as the Court has defined those terms. The Court previously issued a Claim
Construction Memorandum Opinion and Order on March 7, 2019, that defined the terms “object-
based spectral identification score” and “object-based score” to mean “any metric that is
computed from the pixels in an identified region using a process that provides better
understanding of the material or object in the region.” Mar. 7, 2019, Claim Constr. Mem. Op.
and Order at 32 (emphasis supplied).
It is undisputed that the Air Force developed the ARCHER system in 2004, and that this
system is an airborne real-time cueing hyperspectral enhanced reconnaissance system that
incorporates an onboard data processing system to perform numerous real-time processing
9
During oral arguments, the government clarified that it is arguing that the ARCHER system was known
or used by others before the invention of the invention claimed in the ‘489 Patent, and the government is
utilizing the Civil Air Patrol ARCHER Hyperspectral Sensor System reference to provide the description
of the ARCHER system. Tr. 21:24-22:4.
30
functions, including target detection, cueing and chipping, precision image geo-registration and
display, and dissemination of image products and target cue information. See Def. Br. Ex. I at
US_003214; see also B. Stevenson et al., The Civil Air Patrol ARCHER Hyperspectral Sensor
System, 5787 Proc. SPIE 17 (2005); Stocker Report at ¶ 54; see also Pl. Resp. and MSJ at 12-17
(showing that GTA does not dispute the nature of the Archer system as described in the Civil Air
Patrol ARCHER Hyperspectral Sensor System reference submitted by the government). It is
also undisputed that the ARCHER system contains an advanced hyperspectral imaging system,
high-resolution camera and an on-board real-time processor, for target detection, display and
recording. Id. at US_003216; Pl. Resp. and MSJ at 12-17 (showing that GTA does not dispute
that the ARCHER system includes a hyperspectral imagining system, high resolution camera and
an on-board, real-time processor).
The Civil Air Patrol ARCHER Hyperspectral Sensor System reference and the Strategies
for Hyperspectral Target Detection in Complex Background Environments reference also make
clear that the ARCHER system’s approach to target detection includes determining an “object-
based spectral identification score.” Specifically, these references explain that the ARCHER
system determines a “detection statistic” and “target cues” that provide a better understanding of
the material or object detected in a region, by “eliminat[ing] detected pixel groups that do not
conform to the expected size range of the [targets].” Def. Reply Br. Ex. A at US_003312. For
example, the Civil Air Patrol ARCHER Hyperspectral Sensor System reference explains that the
ARCHER system’s target detection capabilities include “[a]nomaly detection, to find unusual
objects with unknown spectra in real-time” and “[m]atched detection, to find targets with known
spectral signatures in real-time.” Def. Br. Ex. I at US_003219. Strategies for Hyperspectral
Target Detection in Complex Background Environments further explains that the ARCHER
system: (1) performs target detection by exploiting the difference in the spectral characteristics
of the target of interest relative to the background materials; (2) reports this difference in terms
of a “detection statistic” that is “computed on a pixel-by-pixel basis;” and (3) then generates
“target cues,” by “thresholding the detection statistic image and performing simple . . . filtering
to eliminate detected pixel groups that do not conform to the expected size range of the
[targets].” Def. Reply Br. Ex. A at US_003312.
Because these references show that the ARCHER system’s approach to target detection
includes determining a “detection statistic” and “target cues” that provide a better understanding
31
of the material or object in a region, by “eliminat[ing] detected pixel groups that do not conform
to the expected size range of the [targets],” the Court agrees with the government that the
ARCHER system determines an “object-based identification score,” as that term has been
defined by the Court. Id.; Mar. 7, 2019, Claim Constr. Mem. Op. and Order at 32. And so, the
Court concludes that the ARCHER system anticipates the “determining . . . an object-based
spectral identification score for each of the identified regions in said image” limitation found in
Claims 1, 10 and 19, and the “determining . . . an object-based score for each region” limitation
found in Claims 4, 5, 12, 13, 14, 21, 22 and 23 of the ‘489 Patent.10
The government has also shown that the ARCHER system anticipates the “providing . . .
[the] identified regions with the determined object-based score” limitation found in Claims 1, 4,
5, 10, 13, 14, 19, 21, 22 and 23 of the ‘489 Patent. In this regard, the undisputed material facts
show that the ARCHER system’s chip viewer window provides the determined detection
statistics and target cue information to the ARCHER system operator.
As the government persuasively argued during the oral arguments on the parties’ cross-
motions, the ARCHER system “does the providing step [of the ‘489 Patent] because it provides
the chip viewer that contains the additional spectral and spatial information” derived from
ARCHER’s target detection algorithms. Tr. at 62:18-62:21. Specifically, the Civil Air Patrol
ARCHER Hyperspectral Sensor System reference explains that, once the ARCHER system
detects a possible ground target, the system geo-registers and crops each image “to create a 256 x
256 pixel chip of the target area,” which is then “sent to the Chip Viewer window . . . for
operator review.” Def. Br. Ex. I at US_003220. An example of the chip viewer window is
provided in the Civil Air Patrol ARCHER Hyperspectral Sensor System reference and is
10
During oral arguments on the parties’ cross-motions, the government explained that “the signature
matched filter” algorithm performed by the ARCHER system “presents detection scores using spatial
information,” which are “aggregated using the pixels that exceed certain thresholds in its spatial facial
process . . . .” Tr. at 59:5-59:11.
32
reproduced below:
Id. at US_003221; see also Stocker Report at 57. As shown in the figure above, the ARCHER
system’s chip viewer window provides the ARCHER system operator with target cue
information, including scores and geolocations for each detected target. Id.Mr. Stocker explains in his expert report that the ARCHER system chip viewer window
allows the system operator to rank the cued targets “by their respective detector scores simply by
clicking on the displayed column header for those scores (similar to the way one sorts entries in a
spreadsheet column).” Stocker Report at ¶ 78. Given this, the undisputed material facts show
that the ARCHER system’s chip viewer window provides a “metric that is computed from the
pixels in an identified region using a process that provides better understanding of the material or
object in the region.” Mar. 7, 2019, Claim Constr. Mem. Op. and Order at 32. Because the Civil
Air Patrol ARCHER Hyperspectral Sensor System reference makes clear that the ARCHER
system provides a detection score and other target cue information that provides a better
understanding of the material or object for the ARCHER system operator to view in the chip
viewer window, the Court agrees with the government that the ARCHER system also anticipates
the “providing . . . [the] identified regions with the determined object-based score” limitation
found in Claims 1, 4, 5, 10, 13, 14, 19, 21, 22 and 23 of the ‘489 Patent.11
11
The Court is also unpersuaded by GTA’s argument that the “pixel score” (i.e. detection score)
determined by the ARCHER system is not an “object-based score,” because an object-based score must
be calculated from all of the image pixels comprising an object. Pl. Resp. and MSJ at 16. The Court’s
definition of the terms “object-based score” and “object-based identification score” does not include the
limitation that GTA seeks to impose. See Mar. 7, 2019, Claim Constr. Mem. Op. and Order at 32.
33
2. The ARCHER System Discloses Inherent
“Masking Out” And “Unmixing” Capabilities
The government has also shown by clear and convincing evidence that the ARCHER
system anticipates the “masking out” limitations found in Claims 4, 13, 22, 28, 30 and 32 of the
‘489 Patent and the “unmixing” limitations found in Claims 5, 14, 23, 29, 31 and 33 of the ‘489
Patent. As shown in the ‘489 Patent, these limitations involve: “masking out from each of the
regions with the target detection processing apparatus the one or more of the pixels in each of the
one or more images which have the highest determined statistical detection scores in each of the
one or more images,” “masking out from each of the regions the one or more of the pixels in
each of the one or more images which have the highest determined statistical detection scores in
each of the one or more images,” “unmixing with the target detection processing apparatus the
pixel with highest determined statistical detection score in each of the identified regions by
finding one or more abundances to determine pixel spectra” and “unmixing the pixel with
highest determined statistical detection score in each of the identified regions by finding one or
more abundances to determine pixel spectra.” See, e.g., ‘489 Patent at 7:60-7:64; 8:22-8:26;
9:40-9:43; 9:64-9:66.
The undisputed material facts show that the ARCHER system’s target detection
algorithms include an inherent “masking out” step as part of the system’s “chipping” function.
Mr. Stocker explains in his expert report that “masking out” involves removing high-scoring
pixels to characterize background contributions, to provide a representative ensemble for
estimating suitable background statistics or endmembers while minimizing contamination from
potential targets (i.e. the high-scoring pixels). Stocker Report at ¶ 58 (“We often seek to remove
any target-like features from the estimate. This can be attempted by not including (masking) the
pixel under test (or a region around the pixel under test) in the covariance matrix estimate.”
(citation omitted)). As discussed above, the Civil Air Patrol ARCHER Hyperspectral Sensor
System reference explains that the ARCHER system includes two target detection algorithms—
an anomaly detection algorithm and a matched detection algorithm. Def. Br. Ex. I at
US_003219. Mr. Stocker explains in his expert report that the ARCHER system uses these
target detection algorithms to define local image regions surrounding pixels or contiguous
clusters of pixels that exceed a detection threshold. Stocker Report at ¶ 79. Mr. Stocker further
explains that “[t]hese regions [are] referred to as ‘chips’ and [are] automatically resolution-
34
enhanced, recorded and displayed in color to the . . . operator to indicate the location of a
detected target and its local scene context.” Id.Because it is undisputed that the ARCHER system’s “chipping” function includes
defining image regions and indicates to the ARCHER system operator the location and local
image context surrounding identified chips, the Court concludes that the “masking out” step
described in the ‘489 Patent is inherent within the ARCHER system’s ability to eliminate pixel
groups that do not conform to the detection threshold. And so, the Court concludes that the
ARCHER system anticipates the ‘masking out” step of Claims 4, 13, 22, 28, 30 and 32 of the
‘489 Patent.
The undisputed material facts regarding the ARCHER system similarly show that this
system anticipates the “unmixing” limitations found in Claims 5, 14, 23, 29, 31 and 33 of the
‘489 Patent. Spectral unmixing refers to the “procedure by which the measured spectrum of a
mixed pixel is decomposed into a collection of constituent spectra, or endmembers, and a set of
corresponding fractions, or abundances, that indicate the proportion of each endmember present
in the pixel,” and was well-known in the art prior to 2011. See N. Keshava & J.F. Mustard,
Spectral Unmixing, 1053-5888 IEE Signal Processing Magazine 44, 44 (Jan. 2002); Stocker
Report at ¶ 60. The government conceded during oral arguments that the version of the
ARCHER system described in the Civil Air Patrol ARCHER Hyperspectral Sensor System
reference does not include an unmixing algorithm. Tr. at 69:3-69:10. But, the government also
persuasively argued that the ARCHER system can, nonetheless, support such an unmixing
algorithm, because unmixing is inherent within the ARCHER system’s capabilities. Tr. at 69:18-
69:19.
Mr. Stocker opines in his expert report that “Claim 4 [of the ‘489 Patent] describes a
generic spectral unmixing process in which endmembers are determined from one or more
selected pixels in each identified region to define a convex hull (i.e. simplex), and subsequently
used to calculate abundances . . . for the endmembers to model detected pixel spectra.” Stocker
Report at ¶ 108. In this regard, the Strategies for Hyperspectral Target Detection in Complex
Background Environments reference provides an overview of different unmixing techniques and
approaches that can be implemented in the ARCHER system. See generally Def. Reply Br. Ex.
A at US_003314-17. For example, the Strategies for Hyperspectral Target Detection in Complex
35
Background Environments reference discusses the N-FINDR algorithm, which “use[s] . . . the
simplex maximization technique,” whereby it “selects as endmembers the set of scene spectra
that maximizes the volume of a simplex defined with these spectra as endmembers.” Id. at
US_003314. The Strategies for Hyperspectral Target Detection in Complex Background
Environments reference also states with regards to the ARCHER system that “[t]he matched
subspace, change detection, and spatial-spectral methods overviewed in this paper provide some
of the primary avenues that [Air Force Research Laboratory] is pursuing to more fully exploit the
inherent detection capabilities supported by such sensor systems.” Id. at US_003319. Given
this, the undisputed material facts regarding the ARCHER system show that the ARCHER
system can support an unmixing algorithm of the kind described in the Strategies for
Hyperspectral Target Detection in Complex Background Environments reference. Id.; Atlas
Powder Co., 190 F.3d at 1347 (“[A] prior art reference may anticipate when the claim limitation
or limitations not expressly found in that reference are nonetheless inherent in it.”). And so, the
Court concludes that the ARCHER system also anticipates the unmixing step found within
Claims 5, 14, 23, 29, 31 and 33 of the ‘489 Patent.
3. The Government Has Shown That The ARCHER
System Anticipates Every Claim Of The ‘489 Patent
As a final matter, the undisputed material facts also show that the government has
asserted anticipation contentions for every claim of the ‘489 patent. As discussed above, the
government has shown by clear and convincing evidence that the ARCHER system anticipates
the limitations found in Claims 1, 4, 5, 10, 13, 14, 19, 21, 22 and 23 of the ‘489 Patent regarding
“determining . . . an object-based spectral identification score for each of the identified regions in
[an] image,” “determining . . . an object-based score for each of the identified regions” and
“providing . . . [the] identified regions with the determined object-based score.” The government
has also shown by clear and convincing evidence that the ARCHER system anticipates the
“masking out” limitations found in Claims 4, 13, 22, 28, 30 and 32 of the ‘489 Patent and the
“unmixing” limitations found in Claims 5, 14, 23, 29, 31 and 33 of the ‘489 Patent. GTA also
does not dispute that the ARCHER system anticipates the other limitations found in these claims.
See Pl. Resp. and MSJ at 12-17.
A careful review of the government’s claims chart and Mr. Stocker’s expert report also
show that the government has addressed each and every element of the claims of the ‘489 Patent
36
and explained why each of these claims were anticipated by the ARCHER system. See Stocker
Report at ¶ 43 (detailing the redundancies of the claims of the ‘489 patent), ¶ 86 (discussing
claim 4 and equivalent claim 13 and whether these claims are anticipated by ARCHER), ¶ 87
(discussing claim 5 and equivalent claim 14 and whether these claims are anticipated by
ARCHER), ¶ 96 (discussing claim 28 and equivalent claims 30 and 32 and whether these claims
are anticipated by ARCHER), ¶ 98 (discussing claim 29 and equivalent claim 31 and whether
these claims are anticipated by ARCHER); see also Def. Br. Ex. J. And so, the Court is satisfied
that the government has asserted anticipation contentions for each and every claim of the ‘489
Patent.
Because the undisputed material facts in this case show that: (1) the ARCHER system
discloses an “object-based spectral identification score” and an “object-based score;” (2) the
ARCHER system anticipates the “masking out” and “unmixing” limitations found in certain
claims of the ‘489 Patent; and (3) the government has shown by clear and convincing evidence
that the ARCHER system anticipates each and every element of Claims 1, 2, 4, 5, 6, 7, 8, 9, 10,
11, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33 of the ‘489
Patent, the Court concludes that the ‘489 Patent is invalid for a lack of novelty. And so, the
Court DENIES GTA’s motion for summary judgment and GRANTS-IN-PART the
government’s cross-motion for summary judgment on the issue of patent invalidity.12
V. CONCLUSION
In sum, GTA has not established a conception date of November 22, 2008, or a priority
date of January 29, 2010, for the invention claimed in the ‘489 Patent. The government has
shown, however, by clear and convincing evidence, that the ARCHER system anticipates each
and every claim of the ‘489 patent. And so, for the foregoing reasons, the Court:
1. DENIES GTA’s motion for summary judgment; and
2. GRANTS-IN-PART the government’s cross-motion for summary judgment.
Some of the information contained in this Memorandum Opinion and Order may be
considered protected information subject to the Protective Order entered in this matter on August
12
Because the Court concludes that the ‘489 Patent is invalid for a lack of novelty, the Court does not
reach the issues of whether the ‘489 Patent is invalid due to obviousness and indefiniteness.
37
13, 2019. This Memorandum Opinion and Order shall therefore be filed UNDER SEAL. The
parties shall review the Memorandum Opinion and Order to determine whether, in their view,
any information should be redacted in accordance with the terms of the Protective Order prior to
publication.
The parties shall FILE a joint status report, on or before May 10, 2021, that:
1. Identifies the information, if any, that they contend should be redacted, together with
an explanation of the basis for each proposed redaction.
2. States their respective views regarding how this matter should proceed, in light of the
Court’s decision on patent invalidity.
IT IS SO ORDERED.
s/ Lydia Kay Griggsby
LYDIA KAY GRIGGSBY
Judge
38