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 pulses to change negative
sensed signals into positive sensed pulses.
A court should dismiss a complaint for failure to state a claim under
Rule 12(b)(6), Fed.R.Civ.P., only if it appears beyond doubt that the
plaintiff can prove no set of facts supporting its claim that would
entitle it to relief. See H.J. Inc. v. Northwestern Bell Tel. Co.,
492 U.S. 229, 109 S.Ct. 2893, 106 L.Ed.2d 195(1989); Hishon v. King &
Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59(1984);
Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984), cert. denied,
470 U.S. 1084, 105 S.Ct. 1845, 85 L.Ed.2d 144(1985). A court must construe
the complaint's allegations in the light most favorable to the plaintiff
and accept those allegations as true. See Scheuer v. Rhodes,
416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974);
Dacey v. New York County Lawyers' Assoc., 423 F.2d 188, 191
(2d Cir. 1969), cert. denied, 398 U.S. 929, 90 S.Ct. 1819,
26 L.Ed.2d 92(1970).
Summary judgment pursuant to Rule 56, Fed.R.Civ.P., is appropriate
where no genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). In
deciding a motion for summary judgment, the court is not expected to
resolve disputed issues of fact, Donahue v. Windsor Locks Bd. of Fire
Commissioners, 834 F.2d 54, 57 (2d Cir. 1987), but to determine whether
there are any factual issues which require a trial. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348,
1355-56, 89 L.Ed.2d 538(1986). However, the non-moving party "must do
more than simply show that there is some metaphysical doubt as to the
material facts." Id. at 586, 106 S.Ct. at 1356. This is particularly true
when the issue is one on which the opponent of summary judgment would
bear the burden of proof at trial. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265
(1986). While court must proceed with great care in approaching a motion
for summary judgment of patent infringement, it is appropriate to grant the
motion if the non-movant fails to come forward with specific facts to show
there is a genuine issue for trial. Chemical Engineering, Corp. v. Essef
Indus., Inc., 795 F.2d 1565, 1571 (Fed.Cir. 1986).
Standard for Proving Infringement
The infringing stage of patent litigation involves two inquiries.
First, as a matter of law, the court must determine the scope of the
claims of the patent. Secondly, the trier of fact must make a factual
finding as to whether the properly construed claims encompass the accused
structure. Texas Instruments v. United States Int'l Trade Comm'n,
805 F.2d 1558, 1562 (Fed.Cir. 1986); Howes v. Great Lakes Press Corp.,
698 F. Supp. 1120, 1124 (S.D.N.Y. 1988).
Proper Construction of the Claims of the `699 Patent
The proper meaning of patent claims may be determined by looking at the
relevant patent documents, including its specification and testimony by
expert witnesses as evidence of the construction of claims as they would
be construed by those skilled in the art. Howes, 698 F. Supp. at 1124.
The claims of the `699 Patent are limited by the use of amplitude
modulation of horizontal synchronization pulses. For example, the
following are claimed:
1. A circuit for encoding information upon horizontal
synchronizing pulses in an active scan portion of a
video field. . . ., selectively passing said data bits
to each horizontal pulse signal in said video field
for amplitude modulating said horizontal pulse
signals. . . .
2. The encoding circuit of claim 1, wherein said
selective means passes only binary data bits for
modulating said horizontal pulse signals.
11. A binary method of encoding a television signal
for the purpose of transmitting two differing forms of
electronic information simultaneously between at least
two locations, comprising the step of encoding
information upon a video signal by amplitude
modulating horizontal synchronizing pulses of said
video signal during an active scan portion of a video
Furthermore, in describing the background of the invention, the