Besides Engate's appeal of non-infringement, defendants successfully appealed a district court finding of a claim being found valid, having struck down numerous other claims via prior art anticipation.

Twelve patents in a family were involved, the parent being 5,369,704.

These inventions generally provide methods and apparatuses to use and manipulate in-court testimony generated in real time by an automatic transcription system. The father of all the other patents, the ’704 patent, carries the title “Down-line transcription system for manipulating real time testimony.”... That patent claims: “A transcription network having linked computer terminals for a court reporter and for examining, defending and associate attorneys.” ’704 patent, Abstract. More particularly, the patented invention “relates to a method and apparatus incorporating an automatic transcription system for providing real time use and manipulation of transcribed testimony by attorneys, judges, court reporters, witnesses and clients.” ’704 patent, col. 1, ll. 6-11.

As to the summary judgment of non-infringement, no fire without smoke.

On summary judgment, the trial court determined that Engate did not show that what the defendants offered for sale infringed any limitations disclosed in Engate’s patents. Direct Literal Infringement Summary Judgment, U.S. Dist. LEXIS 15802, at *31-34. Engate counters that its evidence shows an “offer to sell” the patented invention. See, e.g., 3D Sys., Inc. v. Aarotech Labs., Inc., 160 F.3d 1373, 1379 (Fed. Cir. 1998). In support of this proposition, Engate asserts that its “claim charts” show an offer to sell the patented inventions.

To the contrary, as the trial court concluded, the record does not even conclusively show that the item “offered” for sale was the patented invention. Engate did not show that the defendants’ products and services, which they offered on their websites, infringed the asserted patents. Even though Atkinson’s website mentioned “LiveNote(tm) CaseViewII® by Stenograph Summation Legal Technologies e-transcript binder by realLegal.com,” no evidence supports a finding of an “offer to sell.” After all, the website contained no information about specific real time products, the methods and systems disclosed in Engate’s patents, or pricing. The trial court correctly concluded that “a reasonable jury would be hard pressed to find that Atkinson-Baker sells anything, let alone a ‘patented invention’ in violation of § 271(a).”

Further, as the trial court also recognized, Engate did not show that the document Esquire disseminated actually offered to sell an infringing product. Though the document disclosed Esquire’s products and services as including “Interactive Realtime,” “Internet Realtime” and “Synchronization of Video to Transcript,” the trial court properly pointed out that Engate would need to demonstrate infringement through “more analysis comparing the services generally described in the document with the methods and systems described in those claims.” Although the Esquire document contained “some pricing information,” the “descriptions of the services” were only general overviews with little relation to any of the patented categories or services. As a result, the trial court correctly concluded that “the offer to sell these services, in and of itself, does not amount to direct infringement in violation of § 271(a).” The record is simply devoid of evidence that the products offered on the website infringe particular claims of the Engate patents, or that the services offered by Esquire, alone, once practiced or used, would infringe any particular asserted claims.

Several claims were invalidated by prior art during the bench trial, and more afterwards. Engate and its counsel did nothing but prove themselves incompetent in complaint filing and trial preparation. Just a sample of a patent bozo at work -

Engate argues that the claim requires a hierarchy to the various dictionaries (job, personal, phonetic) in the system. To the contrary, the claims say nothing of a “hierarchy.” Moreover, the record shows that the prior art OmniCat, Xscribe, and Flexcap products provided this feature with a hierarchy of dictionaries.

Engate did squeak through with a few valid claims, though no donkeys to pin the tail on, Engate itself being the only ass in the corral.