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<i>TecSec v. IBM</i>: The (Not-So) Reaching Impact of Rule 36 Affirmances
In TecSec, Inc. v. IBM Corp., et al., 2012-1415 (Fed. Cir. Oct. 2, 2013), the Federal Circuit explained the effect of Federal Circuit Rule 36, under which the Federal Circuit may “enter a judgment of affirmance without opinion” if certain conditions are met. Fed. Cir. R. 36. The TecSec decision highlights the impact of a Rule 36 affirmance on related issues in subsequent litigation, particularly where the Federal Circuit summarily affirms a district court decision that is based on multiple, independent grounds. Parties that may be subject to a Rule 36 affirmance should thus be aware of the potentially limited scope of such a judgment.
TecSec filed suit in the Eastern District of Virginia against a number of defendants, alleging that defendants' Internet servers and related software products infringed TecSec's patents related to methods and systems that secure computer data. The district court severed TecSec's claims against IBM and proceeded with claim construction. At the same time, the district court stayed the proceedings against the remaining defendants.
IBM subsequently filed a motion for summary judgment of non-infringement, which the district court granted on two separate grounds. First, the district court held that TecSec had failed to produce any evidence that IBM itself performed every element of the asserted claims. Because the claims required both software and hardware, but IBM sold only software, the district court found as a matter of law that TecSec failed to present a triable issue of fact as to whether IBM practiced every limitation of any asserted claim, and had also produced insufficient evidence of indirect infringement. As an alternative ground for granting summary judgment, the district court construed the claims and held that, as a matter of law, TecSec had failed to show that IBM's software met the limitations of the claims as construed. As a result, the district court entered final judgment for IBM.
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