United States Court of Appeals
for the Federal Circuit
______________________
MOVE, INC., NATIONAL ASSOCIATION OF
REALTORS AND NATIONAL ASSOCIATION OF
HOME BUILDERS,
Plaintiffs/Counterclaim Defendants-Appellees,
AND
RE/MAX INTERNATIONAL, INC., ADVANCED
ACCESS, ENEIGHBORHOODS, LLC, BRAD KORB,
CHRISTY MORRISON, ORANGE COUNTY
MULTIPLE LISTING SERVICE, INC., (doing busi-
ness as Southern California MLS), KELLER
WILLIAMS REALTY, INC., NORCAL GOLD, INC.,
(doing business as RE/MAX Gold, Inc.), GEORGIA
MLS, INC., METROLIST SERVICES, INC.,
DELAWARE VALLEY REAL ESTATE
INFORMATION NETWORK, INC., (doing business
as TREND), RAPATTONI CORPORATION,
BIRDVIEW.COM, INC.,( doing business as Birdview
Technologies), DELTA MEDIA GROUP, INC.,
FRANK HOWARD ALLEN REALTORS, ALAIN
PINEL REALTORS, INC., PULTE HOMES, INC.,
THE RYLAND GROUP, INC., SHEA HOMES,
TAYLOR MORRISON, INC., ( formerly know as
Taylor Woodrow, Inc.) AVALONBAY
COMMUNITIES, INC., ESSEX PROPERTY TRUST
INC., BRE PROPERTIES, INC., RIVERSTONE
RESIDENTIAL GROUP, LLC, THE FIRST
AMERICAN CORPORATION, FIDELITY NATIONAL
REAL ESTATE SOLUTIONS, LLC, IHOMEFINDER,
INC., CIS DATA SYSTEMS, INC., DIVERSE
SOLUTIONS, LLC, TREND SOFTWARE, INC., (do-
2 MOVE, INC. v. REAL ESTATE ALLIANCE LTD.
ing business as PropertyMinder), PAYMON
GHAFOURI, NATIONAL ASSOCIATION OF NEW
HOME BUILDERS, AND WANISOFT
CORPORATION,
Counterclaim Defendants,
v.
REAL ESTATE ALLIANCE LTD.,
Defendant/Counterclaimant-Appellant,
AND
EQUIAS TECHNOLOGY DEVELOPMENT LLC,
Defendant/Counterclaimant.
______________________
2012-1342
______________________
Appeal from the United States District Court for the
Central District of California in No. 07-CV-2185, Judge
George H. King.
______________________
Decided: March 4, 2013
______________________
ROBIN L. MCGRATH, Paul Hastings LLP, of Atlanta,
Georgia, argued for plaintiffs/counterclaim defendants-
appellees. Of counsel on the brief was FRANK G. SMITH,
III, Alston & Bird, LLP, of Atlanta, Georgia.
REBEKKA C. NOLL, Cadwalader, Wickersham &
Taft, LLP, of New York, New York, argued for defend-
ant/counterclaimant-appellant. With her on the brief
were LOUIS M. SOLOMON and COLIN A. UNDERWOOD.
______________________
MOVE, INC. v. REAL ESTATE ALLIANCE LTD. 3
Before RADER, Chief Judge, LOURIE, and MOORE, Circuit
Judges.
LOURIE, Circuit Judge.
Real Estate Alliance Ltd. (“REAL”) appeals from the
decision of the United States District Court for the Cen-
tral District of California granting summary judgment
that Move, Inc. (“Move”) does not infringe claim 1 of
REAL’s U.S. Patent 5,032,989 (the “’989 patent”). Move,
Inc. v. Real Estate Alliance Ltd., No. 07-2185 (C.D. Cal.
Jan. 26, 2012), ECF No. 493 (“Remand Order”). We
vacate the court’s grant of summary judgment and re-
mand for further proceedings.
BACKGROUND
REAL owns the ’989 patent, which is a continuation-
in-part of U.S. Patent 4,870,576; both patents are now
expired. The ’989 patent is directed to methods for locat-
ing available real estate properties using a zoom-enabled
map on a computer. Specifically, claim 1 recites:
1. A method using a computer for locating avail-
able real estate properties comprising the steps
of:
(a) creating a database of the available real es-
tate properties;
(b) displaying a map of a desired geographic ar-
ea;
(c) selecting a first area having boundaries with-
in the geographic area;
(d) zooming in on the first area of the displayed
map to about the boundaries of the first area
to display a higher level of detail than the
displayed map;
4 MOVE, INC. v. REAL ESTATE ALLIANCE LTD.
(e) displaying the first zoomed area;
(f) selecting a second area having boundaries
within the first zoomed area;
(g) displaying the second area and a plurality of
points within the second area, each point rep-
resenting the appropriate geographic location
of an available real estate property; and
(h) identifying available real estate properties
within the database which are located within
the second area.
’989 patent col. 15 l. 33–col. 16 l. 3.
Move operates and maintains multiple interactive
websites that allow users to search for available real
estate properties. Beginning in 2007, Move filed suit
seeking a declaratory judgment that REAL’s patents were
invalid and that Move’s websites did not infringe them.
REAL counterclaimed, alleging that the “Search by Map”
and “Search by Zip Code” functions employed by Move’s
websites infringed REAL’s claimed search methodologies.
In 2009, the parties stipulated to noninfringement
based on the district court’s claim construction, and after
judgment was entered in favor of Move, REAL appealed
regarding only claim 1 of the ’989 patent. In that appeal,
we vacated and remanded, concluding that the district
court erred in its claim construction, and issued an opin-
ion construing the claim terms. Move, Inc. v. Real Estate
Alliance Ltd., 413 F. App’x 280 (Fed. Cir. 2011). In par-
ticular, we determined that “selecting an area” as recited
in steps (c) and (f) of claim 1 means that “the user or a
computer chooses an area having boundaries, not when
the computer updates certain display variables to reflect
the selected area.” Id. at 286.
On remand, the parties each moved for summary
judgment and the district court granted summary judg-
MOVE, INC. v. REAL ESTATE ALLIANCE LTD. 5
ment of noninfringement to Move. Remand Order, slip
op. at 6. The court held that the “Search by Map” and
“Search by Zip Code” functions of Move’s websites were
not direct infringements because they did not perform the
“selecting” steps required by the claim. Id. In interpret-
ing our construction that “selection takes place when the
user or a computer chooses,” the district court distin-
guished between circumstances that result in user selec-
tion, viz., when the user does not have to create
boundaries, but just selects an area with boundaries,
versus circumstances that result in computer selection,
viz., something more than merely displaying a map after
a user provides specific instructions about the geographic
area of interest. Id. at 4.
The district court concluded that Move’s systems did
not meet the “selecting” requirements because, on its
websites, a user first selects an already bounded area
either by entering a zip code or by clicking on the name of
a city or neighborhood, a point on a map, or a zoom bar,
but then the computer merely updates the display varia-
bles to reflect the user’s selected area. Id. at 5–6. In
other words, in Move’s systems, the user, not the comput-
er, makes the “choice” to search in a certain area, and
that chosen area “ha[s] boundaries,” but then the comput-
er merely displays the corresponding map. The court also
concluded that Move’s systems were not liable for joint
infringement because Move did not exert direction or
control over users who may have performed the selecting
steps. Id. at 6.
REAL appealed from the grant of summary judgment
of noninfringement. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(1).
DISCUSSION
Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
6 MOVE, INC. v. REAL ESTATE ALLIANCE LTD.
law.” Fed. R. Civ. P. 56(a). “We review de novo a district
court’s grant of summary judgment, drawing all reasona-
ble inferences in favor of the nonmovant.” Tokai Corp. v.
Easton Enters., Inc., 632 F.3d 1358, 1366 (Fed. Cir. 2011);
see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
Infringement is a question of fact. Absolute Software,
Inc. v. Stealth Signal, Inc., 659 F.3d 1121, 1129–30 (Fed.
Cir. 2011). But, “[o]n appeal from a grant of summary
judgment of non-infringement, we determine whether,
after resolving reasonable factual inferences in favor of
the patentee, the district court correctly concluded that no
reasonable jury could find infringement.” Id. at 1130.
On appeal, REAL contends that the district court de-
liberately disregarded our claim construction order in
finding that only a human user performed steps that
constitute “selecting an area having boundaries,” contrary
to our ruling that “both users and computers may select
or choose.” REAL alleges that Move’s systems directly
performed all claimed method steps under our construc-
tion, apart from the actions of any human user. Specifi-
cally, REAL asserts that after a map of a desired
geographic area (e.g., a county) is displayed on one of
Move’s websites according to step (b) of claim 1, the user
clicks on a more defined area (e.g., a neighborhood), and
the Move computer responds by “select[ing] the world
coordinates equal to the boundaries” of that more defined
area (i.e., “selecting a first area having boundaries [such
as a neighborhood] within the geographic area [such as
the county]” according to claimed step (c)). Appellant Br.
14–15, 18. REAL maintains that this selection is made
from among the other areas within the larger geographic
area that are defined by Move’s computer system (e.g., a
list of different neighborhoods within the county), and the
Move website automatically generates a display of this
“zoomed” first area because the coordinates are stored in
the Move computer system and are not known to the user.
MOVE, INC. v. REAL ESTATE ALLIANCE LTD. 7
In REAL’s view, the user does not know the precise loca-
tions of the boundaries, or how they have been represent-
ed, stored or encoded, and processed in Move’s computer
system; the user merely designates an area to display and
the computer then does the “selecting.”
Move responds that, in construing the selecting steps,
we held that “[s]election takes place when the user or a
computer chooses an area having boundaries,” and Move’s
computer never “chooses.” Appellee Br. 22 (citing Move,
413 F. App’x at 285) (emphasis in original). Move main-
tains that there is nothing in REAL’s description of
Move’s system that could lead a reasonable jury to con-
clude that Move’s computer selected anything freely after
consideration or made any sort of decision as to what to
select. Move argues that, on the contrary, it was the user,
after considering where he or she wished to search for
properties, who freely selected or decided upon an area,
then notified Move’s computer of that choice by clicking
on the selected area on the map or in a drop down menu.
Move contends that its computer therefore does not
choose or select which world coordinates to retrieve; the
coordinates are pre-associated with a particular map, so
that when a user clicks on a particular area (i.e., a neigh-
borhood within the county), the computer just retrieves
the map associated with the user’s choice.
To establish liability for direct infringement of a
claimed method or process under 35 U.S.C. § 271(a), a
patentee must prove that each and every step of the
method or process was performed. See Akamai Techs. Co.
v. Limelight Networks, Inc., 692 F.3d 1301, 1307 (Fed.
Cir. 2012) (en banc). In cases in which more than one
entity performs the steps of a claimed method or process,
a party is liable for direct infringement only if that party
exercises “control or direction” over the performance of
each step of the claim, including those that the party does
not itself perform. Golden Hour Data Sys., Inc. v. em-
sCharts, Inc., 614 F.3d 1367, 1381 (Fed. Cir. 2010)
8 MOVE, INC. v. REAL ESTATE ALLIANCE LTD.
(“Where the combined actions of multiple parties are
alleged to infringe process claims, the patent holder must
prove that one party exercised control or direction over
the entire process such that all steps of the process can be
attributed to the controlling party, i.e., the mastermind.”
(internal quotation marks omitted)); see also Muniauction,
Inc. v. Thomson Corp., 532 F.3d 1318, 1329 (Fed. Cir.
2008); BMC Res., Inc. v. Paymentech, L.P., 498 F.3d 1373,
1380 (Fed. Cir. 2007) (“Courts faced with a divided in-
fringement theory have also generally refused to find
liability where one party did not control or direct each
step of the patented process.”) overruled on other grounds
by Akamai, 692 F.3d at 1306. The determination is a fact-
specific inquiry; relevant considerations include whether
the accused direct infringer “provides instructions or
directions” to another entity for performing steps of the
patented process or, on the other hand, “contract[s] out
steps of a patented process to another entity.” BMC, 498
F.3d at 1381.
In the recent en banc decision of this court in Akamai,
we decided an issue of divided infringement under
§ 271(b), rather than under § 271(a). Akamai, 692 F.3d at
1307. We found that “we have no occasion at this time to
revisit any of those principles regarding the law of divided
infringement as it applies to liability for direct infringe-
ment under 35 U.S.C. § 271(a).” Id.
Thus, on the issue of direct infringement under
§ 271(a), we agree with the district court that there is no
genuine issue of material fact that Move does not control
or direct the performance of each step of the claimed
method. Like the district court, we focus our analysis on
steps (c) and (f) of claim 1. See Remand Order, slip op. at
3. If the performance of those steps is not attributable to
Move, then Move cannot be directly liable for infringing
REAL’s asserted method claim.
MOVE, INC. v. REAL ESTATE ALLIANCE LTD. 9
We note that, in contrast to REAL’s characterization
of the district court’s analysis, the court explicitly
acknowledged that our claim construction covered sys-
tems in which either a user or a computer performed the
selecting. Id. The court disagreed with REAL’s argu-
ment, as do we, but it did not misapply our claim con-
struction. Indeed, the court correctly found that the Move
computer does not do the selecting; a user does the select-
ing, and then the computer merely updates display varia-
bles to reflect the user’s selection, which we expressly
held did not constitute selection in the previous appeal.
Id. at 5–6; see also Move, 413 F. App’x at 286. Although
certain steps of REAL’s claimed method may be per-
formed by individuals using Move’s system, that does not
equate to direct infringement or joint direct infringement
because Move does not exercise direction or control over
users of its websites. Move’s computer does not select
boundaries; it just loads a map after a user provides
specific instruction as to his or her geographic area of
interest; i.e., Move’s computer does not “choose” the
neighborhood within the county, the user makes that
selection, and then the computer just retrieves a map
based on the programmed coordinates for that neighbor-
hood. As REAL’s own expert admitted, Move’s computer
would retrieve the same map of Beverly Hills every time a
user selected Beverly Hills or 90210 from a list of neigh-
borhoods or zip codes in L.A. County, which is not a
“choice” because the coordinates for Beverly Hills are
already encoded. Accordingly, we conclude that the
district court did not err by finding no genuine issue of
material fact that Move is not liable for direct infringe-
ment of claim 1 of the ’989 patent.
However, that does not end our analysis because the
district court’s grant of summary judgment implicitly
rested on its determination that Move also could not be
liable for indirect infringement. We conclude that the
district court legally erred by not analyzing inducement
10 MOVE, INC. v. REAL ESTATE ALLIANCE LTD.
under 35 U.S.C. § 271(b). Recently, sitting en banc in
Akamai, we clarified the law on inducement. We ex-
plained that all the steps of a claimed method must be
performed in order to find induced infringement, but that
it is not necessary to prove that all the steps were com-
mitted by a single entity. Akamai, 692 F.3d at 1307. In
so holding, we overruled the holding in BMC that in order
for a party to be liable for induced infringement, some
other entity must be liable for direct infringement. Id.
The district court here summarily concluded that be-
cause Move, as a single party, was not liable for direct
infringement, it could not be liable for joint infringement.
Remand Order, slip op. at 6. However, as we explained in
Akamai, our prior cases do not require a single-entity
requirement in the inducement context. Akamai, 692
F.3d at 1315–17. Rather, liability under § 271(b) may
arise when the steps of a method claim are performed by
more than one entity, provided that the other require-
ments for inducement are met. See id. at 1306, 1318.
Although properly following our then-existing prece-
dent, the district court failed to conduct an indirect in-
fringement analysis. The court did not determine
whether a genuine issue of material fact existed as to the
performance of all the claim steps—whether by one entity
or several. Moreover, the court did not analyze whether
Move had knowledge of REAL’s patent and induced users
to perform the claim steps that Move did not itself per-
form.
We therefore vacate the district court’s grant of sum-
mary judgment and remand for a determination whether
Move is liable for indirect infringement under the stand-
ard set forth in Akamai. That standard requires that the
accused inducer, here, Move, knew of the asserted patent
and performed or knowingly induced the performance of
the steps of the claimed methods, and that all of those
steps were in fact performed.
MOVE, INC. v. REAL ESTATE ALLIANCE LTD. 11
Finally, REAL has asked that the case be randomly
reassigned to a different judge based on the proposition
that the district court deliberately and intentionally
refused to follow our specific directions on remand from
its claim construction appeal. Appellant Br. 31–34.
REAL specifically contends that Chief Judge King does
not possess “an open mind” and therefore is not “prepared
to consider REAL’s arguments properly on the merits,”
that reassignment is advisable to preserve the appearance
of justice due to his supposed partiality, and that such
extraordinary action would entail no waste of judicial
resources. Id. at 33–34. We take such allegations seri-
ously, but having carefully considered the record before
us, conclude that REAL’s accusations are wholly without
merit. Accordingly, reassignment is not warranted.
CONCLUSION
For the foregoing reasons, the district court’s grant of
summary judgment is vacated. The case is remanded for
further proceedings consistent with this opinion.
VACATED AND REMANDED