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DEPAUL v. GENERAL INSTRUMENT CORP.

September 11, 1991

ALBERT D. DEPAUL, PLAINTIFF
v.
GENERAL INSTRUMENT CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Sweet, District Judge.

OPINION

Plaintiff pro se Albert DePaul ("DePaul"), brought this action for patent infringement against defendant General Instrument Corporation ("GI") seeking injunctive and monetary relief. GI now moves to dismiss and for summary judgment pursuant to Rules 12(b)(6) and 56, Fed.R.Civ.P. For the reasons set forth below, GI's motions are denied.

DePaul is the inventor and owner of U.S. Patent No. 4,783,699 entitled "Apparatus and Method for Transmitting Information by Modulated Video Signal," issued on November 8, 1988 (the "`699 Patent"). GI manufactures and sells television signal origination, distribution, and receiving electronic equipment.

Prior Proceedings

On March 20, 1991, DePaul filed a complaint against GI alleging infringement of the `699 Patent. On April 2, 1991, this court dismissed the complaint as too conclusory and granted leave to replead, 1991 WL 51139. DePaul filed an amended complaint on May 7, 1991.

GI filed this motion to dismiss and for summary judgment which was heard and considered fully submitted as of June 4, 1991.

Facts and Claims of the Parties

The `699 Patent

It is undisputed that DePaul is the inventor and owner of the `699 Patent. For a television signal to the developed into a viewable picture, special constituents in the television receiver, called "horizontal synchronizing pulses," are required to lock the television set with the incoming signal. The `699 Patent relates to a method and apparatus for encoding additional electronic signals into the horizontal synchronizing portion of a television video signal, by "amplitude modulating," or "piggybacking," the additional signal onto the existent horizontal synchronizing pulses of the television. The invention thus enables the utilization of television transmission links as a medium for transporting additional electronic signals simultaneously with the television video signal without increasing bandwidth. The invention is novel because of the method and location within the video signal for data insertion, Prior to the `699 Patent, the horizontal synchronizing pulse of the video signal had never contained any information other than horizontal synchronization. Any intelligence added to the video signal had been inserted within the vertical blanking period and not during the active picture scan.

Alleged Infringement by GI

DePaul accuses GI of infringing the `699 Patent with its VideoCipher II encryption technology ("VC II"). In support of his claim, he has offered a trade magazine article reporting that because the VC II "data stream uses up the entire horizontal and vertical interval-time spectrum . . . picture synchronization and piggyback data services are transmitted within the [normal] bandwidth." GI's VC II Encryption: Accepted, If Not Loved, Electronic Engineering Times, Dec. 14, 1987, at 20. He has also submitted excerpts from the Video Cipher II Technical Manual ("VC II Manual"), which explain that "video information is inverted between sync pulses" and "[t]he audio . . . is mixed with other bits of digital data and inserted into the horizontal sync pulse, then transmitted with the video signal." VC II Manual at 1 (emphasis added).

GI denies DePaul's accusation that the VC II infringes the `699 Patent. According to GI, all of the claims of the `699 Patent require the use of existent horizontal synchronizing pulses and amplitude modulation of data pulses. GI maintains that the VC II transmits no horizontal synchronizing pulses but rather removes synchronizing pulses and inserts data in their place. GI has referred the court to a different part of the VC II Manual, which states that "[t]he two audio channels, along with the addressing and control information and the auxiliary data channel, are digitally transmitted in place of the horizontal sync pulse in each video line. . . . Video security is provided by the complete absence of all normal sync information (both vertical and horizontal)." VC II Manual at 4 (emphasis added).

Depaul contests GI's assertion that the VC II does not use horizontal synchronizing information as a case of mere semantics. He maintains that in order for the VC II to accomplish its result it must use amplitude modulation of the horizontal synchronization ...


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