Baron Services, Inc. v. Media Weather Innovations Llc

United States Court of Appeals
for the Federal Circuit
______________________

BARON SERVICES, INC.,
Plaintiff-Appellant,

v.

MEDIA WEATHER INNOVATIONS LLC,
Defendant-Appellee.
______________________

2012-1285, -1443
______________________

Appeal from the United States District Court for the
Northern District of Alabama in No. 11-CV-1606, Judge
Inge Prytz Johnson.
______________________

Decided: May 7, 2013
______________________

JEFFREY T. KELLY, Lanier Ford Shaver & Payne, PC,
of Huntsville, Alabama, argued for plaintiff-appellant.
With him on the brief was J.R. BROOKS.

STUART N. BENNETT, Jones & Keller, P.C., of Denver,
Colorado, argued for defendant-appellee. With him on the
brief was PERRY L. GLANTZ, of Greenwood Village, Colora-
do.
______________________
2 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC
Before DYK, PROST, and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge PROST.
Dissenting opinion filed by Circuit Judge REYNA.
PROST, Circuit Judge.
Baron Services, Inc., (“Baron”) appeals the orders of
the United States District Court for the Northern District
of Alabama awarding summary judgment of noninfringe-
ment and attorney’s fees to Media Weather Innovations,
LLC (“MWI”). Because the district court’s summary
judgment order was premature, we vacate the court’s
summary judgment and award of attorney’s fees and
remand for further proceedings consistent with this
opinion.
I. BACKGROUND
Baron owns U.S. Patent No. 6,490,525 (“’525 patent”),
which “generally relates to systems and methods for
weather reporting and forecasting, and more particularly,
to computerized systems and methods for reporting and
forecasting real-time weather information.” ’525 patent
col. 1 ll. 19-22. In May 2011, Baron filed a civil action
alleging that MWI’s WeatherCall programs infringed the
’525 patent. The schedule for the case was set by the
district court in an order that, among other deadlines, set
discovery to end on July 13, 2012. The order did not,
however, set a timetable for Markman proceedings or for
exchanging invalidity or infringement contentions. 1

1 Baron later informed the district court that it be-
lieved at the time that the parties would work out the
deadlines for those additional terms while proceeding
with fact discovery. Transcript of Summary Judgment
Hearing, Jan. 24, 2012, District Court Docket Entry
(“D.E.”) 47 at 65-75.
 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC 3
About two months after filing its complaint, Baron
served MWI with a request for production of the source
code used by the WeatherCall products. Instead of pro-
ducing the requested code, however, MWI moved the
court for a protective order. 2 MWI asserted that,
“[b]ecause the Patent-in-Suit claims no computer-code-
based invention, MWI’s computer source code is not even
potentially relevant to this case.” J.A. 126. In support of
its motion, MWI submitted affidavits from Michael Fan-
nin, an employee of MWI, and from Valerie Ritterbusch,
the President of MWI and a former employee of Baron.
Those affidavits explained that the “means” by which the
accused products send information from National Weath-
er Service (“NWS”) alerts to MWI’s customers is “accom-
plished through computer source code,” but there are
“numerous other terms and concepts in the 525 Pa-
tent . . . which also distinguish [MWI’s] Computer Source
Code . . . from the 525 Patent.” J.A 138, 141. In response
to MWI’s motion, Baron explained that the ’525 patent
specifically discloses an invention that uses a special
purpose computer to execute “computer code” and that the
“logic” recited in several claims “IS the source code.” J.A.
151-52; see ’525 patent col. 5 ll. 4-5. According to Baron,
MWI’s source code was therefore relevant to the asserted
method, apparatus, and system claims because MWI’s
affiants clearly established that MWI’s accused products
were implemented through a computer by MWI’s source
code.
On October 4, 2011, the district court granted MWI’s
motion to protect its source code from disclosure “without
prejudice to [Baron]’s right to seek said information at a
more appropriate time in the litigation.” J.A. 166. The

2 MWI’s motion came after the court entered a
stipulated protective order that permitted the parties to
protect the confidentiality of discovery productions.
4 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC
court held that it could not determine “if the source code
is relevant to the issues in this action” because Baron
“failed to plead in what manner [MWI] is alleged to be
infringing.” J.A. 164.
After the court’s decision, the parties continued to pro-
ceed with discovery. Relevant here, Baron noticed deposi-
tions of Ritterbusch and Fannin, 3 and MWI served Baron
with numerous written discovery requests. Included
among those requests were demands for Baron to define
certain terms in the ’525 patent and to detail how MWI’s
products used or incorporated the invention claimed in
the ’525 patent.
On the day Baron’s responses to MWI’s discovery re-
quests were due, November 21, 2011, Baron moved the
district court to “improve the efficiency and orderliness of
th[e] case” by setting a Markman hearing and adopting
the Patent Rules that were in use by another judge in the
Northern District of Alabama. J.A. 172. With its motion,
Baron included a proposed schedule detailing a timetable
for disclosures and joint filings relating to infringement
contentions, validity contentions, and Markman proceed-
ings. In addition, Baron moved the court to enter “an
order staying Baron’s obligations to respond to certain of
MWI’s Discovery Requests, as explicitly set forth in the
Patent Rules, until the applicable dates set forth in [Bar-
on’s proposed schedule].” J.A. 174.
On the same day Baron filed its motion, it served time-
ly responses to MWI’s written discovery requests. In

3 Although noticed on November 1, 2011, MWI ap-
pears to have not agreed to move forward with the deposi-
tions until January 7, 2012. See D.E. 38-5 at 2; 40-7 at 3.
It appears from the record that those depositions were
scheduled to take place in mid-February 2012. D.E. 40-7
at 1.
 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC 5
those answers, Baron objected to defining claim terms as
premature in light of the schedule that Baron proposed
for the court to adopt. 4 As promised in those responses,
Baron subsequently served its “Disclosure of Asserted
Claims and Preliminary Infringement Contentions” on
December 8, 2011. Those contentions detailed how Baron
believed MWI’s products met the limitations of each
asserted claim. Baron then renewed its request to MWI
for access to source code.
On December 27, 2011, MWI filed a motion for sum-
mary judgment of noninfringement. MWI argued that
undisputed facts proved that it did not infringe the ’525
patent. According to MWI, “[t]he only service that MWI
offers its subscribers is to forward National Weather
Service warnings,” “Baron admits that warnings issued by
the National Weather Service do not infringe any claim of
the ‘525 Patent,” and “Baron has therefore admitted that
MWI’s services do not infringe any claim of the ‘525
Patent.” J.A. 470-71. In support of its motion, MWI
submitted a new affidavit by Valerie Ritterbusch in which
she explained why the accused products did not satisfy
the limitations of the asserted claims given her under-
standing of certain claim terms in the ’525 patent.
Baron filed a timely response to MWI’s motion for
summary judgment and provided the district court with
several documents produced by MWI during discovery.
Citing Federal Rule of Civil Procedure 56(d), Baron ar-

4 Baron also included the following response to one
of MWI’s requests for admission. “Baron is without
sufficient information to know how the Court will define,
if appropriate, ‘storm profile’ or ‘National Weather Service
warning’ . . . . Baron admits that information from the
National Weather Service alone, including a ‘warning’,
does not infringe the ’525 Patent.” J.A. 380.
6 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC
gued that summary judgment was premature because the
court had not yet construed the terms of the ’525 patent,
because it had not yet had the opportunity to review
MWI’s relevant source code, and because it had yet to
depose Ritterbusch and Fannin. Pointing to a provisional
patent application filed by MWI for the accused products,
Baron also argued that there was a genuine dispute
concerning the material fact whether the accused prod-
ucts “analyzed” weather data from the NWS. According
to Baron, the description of MWI’s WeatherCall programs
in the provisional application contradicted the statements
in the affidavits submitted by MWI.
After responding to MWI’s motion for summary judg-
ment, Baron filed a motion to compel production of MWI’s
source code. Baron asserted its infringement contentions
clearly demonstrated the relevancy of the code, but MWI
continued to refuse repeated requests to produce it.
Without the source code, Baron argued, “[it] and the
Court will simply have to rely on MWI’s word as to how
its products function without any ability to test, through
expert review of the source code, whether MWI’s state-
ments are accurate or inaccurate.” J.A. 755.
On January 24, 2012, the court held a hearing to ad-
dress MWI’s summary judgment motion and Baron’s
outstanding motions. At the hearing, Baron reiterated its
argument that summary judgment was premature and
unwarranted. Baron discussed the details of the MWI’s
provisional patent application, including how it believed
the document revealed that MWI’s WeatherCall products
analyze “the [NWS] alert type, time of the alert, and the
geographic area affected by the alert . . . in the same way
that is taught by the patent.” D.E. 47 at 19. Baron also
explained how an infringement analysis would turn on
the construction of key terms in the asserted claims:
“[MWI] say[s] in their response, well, we don’t use a
geographic area, but they say right here [in its provisional
patent application] that they do use a geographic area,”
 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC 7
id.; “this [provisional patent application] says that their
product is analyzed by the system, . . . they said that the
word ‘analysis’ here doesn’t mean the same as the word
‘analysis’ in our patent,” id. at 16; “[t]hey say [an alert]’s
not meteorological data[,] I don’t know how you say a
weather alert is not meteorological data,” id. at 15.
At the hearing, Baron also summarized its argument
why summary judgment was premature.
[T]he documents . . . have shown . . . that MWI
engages in significant processing and analysis of
the data contained in the [National Weather Ser-
vice] warnings . . . . [W]e concede just getting in-
formation from the National Weather Service and
just passing it along without analysis, without
manipulation, without doing any of the things
that they say they do . . . would not be an in-
fringement of the patent. But they say they do
these other things. . . . [T]he affidavit conflicts
with it . . . . That being the case, . . . we should
have an opportunity to test what is in the affidavit
and before the Court grants summary judgment.
Id. 23. Baron specifically highlighted the importance of
MWI’s source code to its opposition to summary judgment.
There’s a source code out there that tells what
they do. . . . [W]hat is said in the affidavit is in
conflict with what is said right here in [the provi-
sional patent application] . . . [a]nd it is also not
tested by us in order to determine whether it’s ex-
actly correct or not, and we have asked to do that.
In order to be able to compare the product or ser-
vice to the properly construed claims, that’s what
we asked the Court for an opportunity to do.
Id. at 20. The district court, however, looked to the brief-
ing and affidavits filed by MWI and summarized Baron’s
8 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC
argument as: “I don’t believe what they say; I want to go
in and dig deeper and see if they are lying.” Id. at 17.
Throughout the hearing, MWI’s arguments also cen-
tered on disputed claim terms and the relevancy of the
source code. “[W]e have a source code that enables us to
analyze—and I will use that term ‘analyze’—to reach the
geographic latitudes and longitudes of a NWS warning
and then compare that polygon with addresses that we
have for our subscribers.” Id. at 36. “[W]e find out the
type of alert, we find out the time, and we find out the
geographical area. That’s what we mean by analyze.” Id.
at 51. But “we do it arithmetically. There’s nothing
special about it. We do it by virtue of math. That’s why
our source code is irrelevant.” Id. at 43-44. And, as it
stated, MWI did not infringe because “the patent claims
that it has a logic . . . designed to do one thing and one
thing only, and that’s to determine . . . whether a contact
[sic] identifier identifies a remote unit that is located
within the area of a weather alert.” 5 Id. at 36. “[Our
system] doesn’t have a logic to do that.” Id. at 38.
On February 1, 2012, the court granted MWI’s motion
for summary judgment of noninfringement and found
Baron’s outstanding motions to be moot. Disposing of
Baron’s petition under Rule 56(d), the court found that
Baron never “ask[ed] for more time to complete discovery”
and failed to “assert it could not prosecute this action
without further discovery.” J.A. 29. Accordingly, “left

5 The dissent appears to adopt that view of how in-
fringement of the asserted claims must be determined.
Dissent at 3. It finds relevant—as does MWI—that users
of MWI’s systems provide a “self-designated location” for
weather alerts. Id. Without proper claim construction,
however, it seems difficult to know whether that distinc-
tion is important.
 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC 9
solely with [MWI]’s affidavit evidence,” the court conclud-
ed that Baron’s opposition to summary judgment consist-
ed only of asserting that MWI “is lying.” J.A. 15, 28. In
the court’s view, MWI had therefore “submitted unrefuted
evidence that its service does not perform numerous steps
of the plaintiff’s patent,” namely, MWI’s evidence demon-
strated that “it does not use a geographical area, region,
cell, or grid to determine areas to be altered.” J.A. 28.
After reaching its conclusion on infringement, the
court held that claim construction was unnecessary, even
though Baron “obstinately insisted” otherwise. Its “duty,”
as the court saw it, was “to construe only disputed claim
terms.” J.A. 32. The court reasoned that Baron did “not
dispute the meaning of any terms” because it had “re-
fused” to “define a variety of terms through discovery”
requested by MWI. J.A. 30-31. Therefore, despite the
parties’ differing positions on the definition of several
terms in the asserted claims and Baron’s motion for a
Markman hearing, the court declined to construe any
terms during its infringement analysis.
Shortly after prevailing on summary judgment, MWI
filed a motion for attorney’s fees pursuant to 35 U.S.C.
§ 285, which the court also granted. In April 2012, the
court entered judgment awarding MWI $243,757.45 for
attorney’s fees.
Baron timely appealed the grant of summary judg-
ment of noninfringement and the award of legal fees. We
have jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1295(a)(1).
II. DISCUSSION
Under Federal Rule of Civil Procedure 56(d), a party
opposing a summary judgment motion may request that a
district court delay ruling on the motion in order to obtain
additional discovery without which “it cannot present
facts essential to justify its opposition.” Fed. R. Civ. P.
10 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC
56(d). 6 The Eleventh Circuit has explained that “[t]he
whole purpose of discovery in a case in which a motion for
summary judgment is filed is to give the opposing party
an opportunity to discover as many facts as are available
and he considers essential to enable him to determine
whether he can honestly file opposing affidavits.” Snook
v. Trust Co. of Ga. Bank of Savannah, N.A., 859 F.2d 865,
870 (11th Cir. 1988) (quoting Parrish v. Bd. of Com’rs of
Ala. State Bar, 533 F.2d 942, 948 (5th Cir. 1976)). Accord-
ingly, district courts in the Eleventh Circuit should grant
requests under Rule 56(d) “when the party opposing the
[summary judgment] motion has been unable to obtain
responses to his discovery requests” and the discovery
sought would be essential to opposing summary judgment
and “relevant to the issues presented by the motion for
summary judgment.” Snook, 859 F.2d at 870 (citation
omitted); see Porter v. Ray, 461 F.3d 1315, 1324 (11th Cir.
2006).
Here, Baron requested that the district court delay rul-
ing on MWI’s summary judgment motion until it had to
the opportunity to examine MWI’s source code and to
depose Ritterbusch and Fannin. 7 It adequately explained

6 We apply the law of the regional circuit when re-
viewing the court’s decision under Rule 56(d). Exigent
Tech., Inc. v. Atrana Solutions, Inc., 442 F.3d 1301, 1310
(Fed. Cir. 2006). In the Eleventh Circuit, a district court’s
denial of such a request may be overturned if the decision
was an abuse of discretion. Carmical v. Bell Helicopter
Textron, Inc., 117 F.3d 490, 493 (11th Cir. 1997).
7 The dissent correctly notes that we do not reach
whether summary judgment was “supported by the record
evidence.” Dissent at 6. That is not because, as the
dissent contends, we are trying to present “a highly
selective, one-sided perspective of the record.” Id. That is
inaccurate. We simply decline to repeat the error of the
 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC 11
how that additional discovery was relevant and essential
for its opposition to MWI’s summary judgment motion. 8
Baron detailed in its briefs to the district court and during
the summary judgment hearing how MWI’s source code
could show that the accused devices met several of the
limitations of the asserted claims. As shown in its in-
fringement contentions, Baron asserted that certain
features of the accused products met the “logic,” “analyze,”
and “computer” limitations found in some of the asserted
claims. Per the Ritterbusch and Fannin affidavits, those
features are enabled by MWI’s source code. 9 MWI assert-

district court by prematurely considering whether the
incomplete record supports summary judgment.
8 Baron did not file the affidavit normally required
by Rule 56(d). However, an affidavit or declaration is not
required in the Eleventh Circuit. Snook, 859 F.3d at 871
(“In this Circuit, a party opposing a motion for summary
judgment need not file an affidavit pursuant to Rule
56([d]) . . . in order to invoke the protection of that Rule.”).
9 The dissent states that Baron has no “entitlement
to th[e] discovery” of source code because it failed to
“demonstrate good cause as to why the source code was
relevant to the alleged infringement.” Dissent at 9. But
“good cause” is required to be shown under Rule 26(b)(1)
only if seeking broad discovery of “matter[s] relevant to
the subject matter involved in the action.” Fed. R. Civ. P.
26(b)(1) (emphasis added); see, e.g., Fed. R. Civ. P. 26,
Advisory Committee Notes, 2000 Amendment; In re
Subpoena to Witzel, 531 F.3d 113, 118 (1st Cir. 2008).
Baron seeks discovery of the source code as relevant to its
claims; Baron’s burden under Rule 26(b)(1) is not good
cause. It only has to show that the source code is relevant
and likely to lead to admissible evidence—which it has
clearly demonstrated. See id. Under the agreed protec-
tive order, MWI can require that only Baron’s attorneys
12 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC
ed, though, that those features are not enabled by the
source code in an infringing manner. Examining the
source code would have enabled Baron to determine if
MWI’s noninfringement position was correct—which
Baron believed to not be the case given the disclosures in
the provisional patent application produced by MWI
regarding how the accused products might analyze data
from NWS warnings with logic implemented on a comput-
er. The opportunity for the reasonable chance to disprove
MWI’s position on noninfringement was relevant and
essential to Baron’s opposition of MWI’s motion for sum-
mary judgment. 10
Baron’s opportunity to depose Ritterbusch and Fannin
was equally important to Baron’s ability to adequately
oppose summary judgment. As demonstrated by their
affidavits, Ritterbusch and Fannin both possessed per-
sonal knowledge of the functionality of the accused prod-
ucts. Their affidavits were MWI’s primary evidence to
support its motion for summary judgment, and the state-
ments made in them were accepted as true by the district

have access to the code. There is no basis to further
withhold the discovery of the source code.
10 MWI asserts that its source code was not essen-
tial—or even relevant—to show infringement because the
outputs of MWI’s accused products, to which Baron had
ready access, were enough to definitively prove that MWI
did not infringe the ’525 patent. We have no doubt that
the output of a system may prove noninfringement in
some cases. But MWI fails to show how the output of
MWI’s WeatherCall programs alone proves that the
accused products lack an essential limitation in each and
every asserted claim of the ’525 patent. And MWI does
not explain how it would make that showing without
construction of several key terms in the asserted claims.
 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC 13
court. Deposing Ritterbusch and Fannin would have
provided Baron its principal opportunity to directly chal-
lenge the veracity of the statements made in their affida-
vits.
Therefore, under the circumstances here, it was im-
proper for the district court to have refused Baron’s
request to delay ruling on MWI’s summary judgment
motion until Baron had the opportunity to access MWI’s
source code and depose Ritterbusch and Fannin. See
Metro. Life Ins. Co. v. Bancorp Servs., L.L.C., 527 F.3d
1330, 1338 (Fed. Cir. 2008) (reversing district court
refusal to grant Rule 56(d) motion when discovery sought
was the principal opportunity to contradict statements in
declarations that a district court treated as truthful and
dispositive); see also Wideman v. Shallowford Cmty.
Hosp., Inc., 826 F.2d 1030, 1037 n.11 (11th Cir. 1987)
(“[T]he proceedings in the district court took a bizarre
turn when the court accepted the affidavits . . . in support
of the defendants’ motion for summary judgment, yet
refused to permit the plaintiffs to depose those same
individuals. This is not a proper practice.”); cf. Exigent
Tech. v. Atrana Solutions, 442 F.3d 1301 (Fed. Cir. 2006)
(applying Eleventh Circuit law and affirming a denial of a
Rule 56(d) motion because it was made after the close of
discovery and after the plaintiff had already obtained two
extensions of time to respond to a summary judgment
motion). We do not agree with the district court that
Baron “[a]t no point . . . assert[ed] it could not prosecute
this action without further discovery” and “did not ask for
more time to complete discovery.” J.A. 29 n.15. In its
brief in opposition to summary judgment and at the
summary judgment hearing, Baron informed the district
court that summary judgment would be premature under
Rule 56(d) because it had yet to obtain MWI’s source code
and to depose Ritterbusch and Fannin. Baron also ap-
pears to have diligently pursued that discovery. It made
repeated requests to MWI for the source code and resorted
14 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC
to motions practice when the parties were at an impasse.
And it noticed depositions of Ritterbusch and Fannin
almost two months before MWI filed its motion for sum-
mary judgment—depositions that it appears would have
occurred except for the district court’s summary judgment
ruling. 11 The district court abused its discretion by deny-
ing Baron’s request under Rule 56(d) to delay ruling on
MWI’s summary judgment motion. 12
III. CONCLUSION
The district court prematurely granted summary
judgment of noninfringement to MWI. We therefore
vacate the district court’s summary judgment order,
including its dismissal of Baron’s outstanding motions as
moot, and the district court’s order and judgment award-
ing attorney’s fees to MWI. We remand this case to the
district court for further proceedings consistent with this

11 The dissent claims that Baron should not be af-
forded the opportunity to depose Ritterbusch and Fannin
because it made a “strategic choice” to delay those deposi-
tions until after the summary judgment hearing. Dissent
at 10. Baron noticed those depositions months before
summary judgment briefing started. MWI finally offered
Ritterbusch and Fannin the same day summary judgment
briefing concluded and with notice of only a few business
days. There was no “strategic choice” by Baron to re-
schedule the depositions for a later date (that still fell
months before the close of discovery) because of “the short
notice and other scheduling conflicts.” D.E. 40-7 at 2.
12 The dissent asserts that there is no cause to per-
mit additional discovery because Baron should have
sought “protective relief from the court” to enable it to
take discovery before summary judgment. Dissent at 10.
But the dissent ignores the relief Baron sought that is the
very subject of our opinion: Baron’s Rule 56(d) request.
 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC 15
opinion. In remanding for further proceedings, we ex-
press no opinion as to whether Baron has a meritorious
cause of action; after claim construction and further
discovery, it may be that the cause of action is non-
meritorious. But Baron is entitled to the opportunity to
prove otherwise under a correct claim construction with
appropriately limited discovery. 13

13 Baron argues that it also produced adequate evi-
dence of infringement to survive summary judgment.
Given our holding, we need not reach the merits of the
district court’s ruling on infringement. However, on
remand, we note that the district court should not avoid
construing relevant terms in the asserted claims as part
of its infringement analysis. A determination of patent
infringement, even on summary judgment, requires a two-
step analysis, the first of which is claim construction.
Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.
Cir. 1998) (en banc).
The importance of claim construction is quite evident
here. The infringement analysis in this case may very
well turn on the definition and scope of terms in the
asserted claims. As made clear during the summary
judgment hearing, the parties dispute the scope of many
claim terms and rely on their own understandings of
those terms to support their infringement or nonin-
fringement theories. And they also look to seemingly
conflicting intrinsic and extrinsic evidence to support
their interpretations of relevant claim terms. Claim
construction would resolve the disputes between the
parties and provide the legal basis for determining in-
fringement.
In addition, after construing the terms of the asserted
claims, the court can then also properly decide the rele-
vance of whatever admissions related to noninfringement
16 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC
VACATED AND REMANDED
COSTS
Each party shall bear their own costs.

that Baron may have made during discovery or during the
summary judgment hearing. Without construing relevant
claim terms, however, the import of those statements—
and the propriety of the parties’ positions on infringe-
ment—cannot be reasonably determined with an appro-
priate level of clarity.
This guidance is not an “appellate pronouncement[]
on case management,” as the dissent sees it. Dissent at 9.
It is merely recognition that the facts of this case demon-
strate the necessity of construing claim terms as part of
the infringement analysis.
 United States Court of Appeals
for the Federal Circuit
______________________

BARON SERVICES, INC.,
Plaintiff-Appellant,

v.

MEDIA WEATHER INNOVATIONS LLC,
Defendant-Appellee.
______________________

2012-1285, -1443
______________________

Appeal from the United States District Court for the
Northern District of Alabama in No. 11-CV-1606, Judge
Inge Prytz Johnson.
______________________

REYNA, Circuit Judge, dissenting.

This case presents the question of at what point
should the case management perspectives of a party
trump an otherwise properly entered summary judgment?
The majority takes the unusual course of vacating a
summary judgment determination that is supported by
the record evidence based on the premise that the district
court failed to manage procedure and discovery in accord-
ance with Baron Services, Inc.’s (“Baron”) case manage-
ment expectations which the district court held to be
unreasonable and obstructive. I find that the district
court’s case management was not an abuse of discretion,
2 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC
and that the record evidence supports the entry of sum-
mary judgment. I respectfully dissent.
BACKGROUND
Baron accuses Media Weather Innovations, LLC
(“MWI”) of infringing U.S. Patent No. 6,490,525 (“the ’525
Patent”) by transmitting National Weather Service
(“NWS”) warnings. The written description of the ’525
Patent discloses a computer-based system that, after
compiling meteorological data, may predict the path of a
storm, ’525 Patent col. 3 ll. 39-41, use the data to generate
storm profiles, id. at col. 4 ll. 57-59, and perform “storm
tracking functions.” ’525 Patent col. 6 ll. 24-27, 64-65.
The end result, at least as envisioned in the preferred
embodiment, is that the generated storm profiles are
“distributed to the respective remote units by the distri-
bution network” so that an end user receives “site-
specific” and “highly relevant” weather information. ’525
Patent col. 4, ll. 59-65.
The asserted claims are drawn to “logic” configured to
manipulate weather data and make determinations
relating to weather events. The logic is also configured to
transmit such weather-related determinations to a user in
a geographic region experiencing the impending weather
event. Claim 1 recites:
1. A system for providing weather event notifica-
tions, comprising:
memory for storing contact identifiers that
identify a plurality of remote units; and
logic configured to make a determination
as to whether one of said contact identifi-
ers identifies at least one of the said re-
mote units that is located within a
geographic region of an impending weath-
er event, said logic further configured to
transmit, if said logic determines in said
 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC 3
determination that said one contact iden-
tifier identifies a remote unit located with-
in said geographic region, a signal to the
at least one remote unit based on said one
contact identifier thereby enabling the at
least one remote unit to notify a user with-
in said geographic region of said impend-
ing weather event.
’525 Patent col. 10 ll. 33-47 (emphases added). Based on
the plain language of the representative claim, it cannot
be infringed unless an accused system compiles data and
determines, based on the user’s location, where to send
the corresponding warning. The issue before the district
court was whether MWI’s dissemination of unmanipulat-
ed NWS warnings, to a user at a self-designated location, 1
infringes the ’525 Patent.
SUMMARY JUDGMENT
The dispositive summary judgment rationale—that
MWI’s products do not infringe because they merely
download publicly available NWS notifications and for-
ward the notifications to subscribers—is based on Baron’s
admissions and statements concerning what constitutes

1 MWI distributes NWS warnings only to those us-
ers who opt-in through MWI’s WeatherCall products.
This distinction is important in understanding a core
difference between Baron’s commercial embodiment of its
patent and the accused products. Whereas the Baron Saf-
T-Net system analyzes where to send NWS warnings
based on Internet digital addressing and whether a
customer’s phone number is inside or outside the area
affected by the weather alert, see J.A. 556−57, the MWI
accused products forward the NWS warnings based solely
on geographic information the user provides in opting-in
and requesting MWI’s weather alerts. J.A. 491−92.
4 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC
infringing activity. See J.A. 22; J.A. 1034. First in its
written discovery responses, and later at oral argument,
Baron defined the parameters of noninfringement: “[W]e
concede just getting information from the National
Weather Service and just passing it along without manip-
ulation . . . would not be an infringement of the patent.”
J.A. 1034; see also J.A. 380. The district court noted that
“Baron admits that information from the National
Weather Service alone, including a ‘warning’, [sic] does
not infringe the ’525 Patent.” J.A. 23, n.9 (quoting J.A.
380) (emphasis in original omitted).
In moving for summary judgment, MWI argued that
its straightforward dissemination of weather infor-
mation—without analysis or manipulation—could not
satisfy the specific logic requirements of the asserted
claims and fell squarely within Baron’s parameters of
noninfringement. To support its position, MWI adduced
evidence, including sworn declarations of corporate repre-
sentatives, J.A. 138−39; J.A. 141−43; J.A. 491−92, copies
of the alerts MWI disseminated to subscribers, J.A. 1058,
and a proposal in the MWI provisional patent application
describing preferred embodiments as delivering NWS
warning without meteorological analysis or forecasting.
See J.A. 626−27. The witness declarations provided a
particularized comparison between operation of the
accused products and the limitations in the claims. Mr.
Michael Fannin, developer of the accused products, ex-
plained that the computer source code does not analyze
meteorological data as claimed in the ’525 Patent. J.A.
138. Similarly, Ms. Valerie Ritterbusch, President of
MWI, provided two declarations clarifying that there is no
analysis of data, id. at 142, and confirmed that the ac-
cused products transmit NWS warnings without engaging
in any sort of weather event prediction. Id. at 492.
Relying primarily on the witness declarations, the dis-
trict court granted summary judgment because the MWI
“does not use a geographical area, region, cell or grid to
 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC 5
determine areas to be alerted.” J.A. 28. In particular, the
district court cited to Baron’s admission in the written
discovery response, and then evaluated the sworn state-
ment of Ms. Ritterbusch stating that MWI “only trans-
mit[s] National Weather Service warnings to members of
the public who subscribe to MWI’s services.” J.A. 24
(quoting J.A. 491). After pointing out that Baron had not
presented any evidence of infringement, by affidavit or
otherwise, the district court concluded that MWI’s unre-
futed showing established that it merely passes on alerts
and such basic activities could not, as a matter of law,
perform the numerous steps recited in the asserted
claims. See id. at 28−29 (citing Ritterbusch declaration).
In light of this body of evidence, I would affirm the
district court’s summary judgment ruling—a ruling that
isolated and disposed of unsupported infringement claims.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)
(“One of the principal purposes of the summary judgment
rule is to isolate and dispose of factually unsupported
claims or defenses, and we think it should be interpreted
in a way that allows it to accomplish this purpose.”); see
also Minkin v. Gibbons, P.C., 680 F.3d 1341, 1351 (Fed.
Cir. 2012). Indeed, the purpose of summary judgment is
to dispose of those issues for which there is no contention
as a matter of law. FED. R. CIV. P. 56(c); see also Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
MWI discharged its burden when it presented evi-
dence that it met Baron’s noninfringement description.
Baron, having made a choice to define the bounds of
noninfringing activities, did not rebut MWI’s summary
judgment showing. Because Baron failed to point to
specific ways in which accused products were capable of
analysis and/or manipulation that met the claim limita-
tions, the district court was correct to conclude that Baron
did not have a credible basis to oppose the motion for
summary judgment. Exigent Tech., Inc. v. Atrana Solu-
tions, Inc., 442 F.3d 1301, 1308−09 (Fed. Cir. 2006) (ap-
6 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC
plying Eleventh Circuit law and holding that summary
judgment is warranted when the movant has discharged
its burden and there is an absence of evidence to support
the nonmoving party’s case); Optivus Tech., Inc. v. Ion
Beam Applications S.A., 469 F.3d 978, 990 (Fed. Cir.
2006) (reaffirming the well-established summary judg-
ment framework for shifting the burden of production).
DISCOVERY AND CLAIM CONSTRUCTION
Taken as a whole, I believe that the majority takes a
highly selective, one-sided perspective of the record. 2
First, the majority neither acknowledges nor discusses
Baron’s voluntary narrowing of the noninfringement
issue. Second, the majority ignores whether the summary
judgment determination is supported by the record evi-
dence. And, third, the majority fails to take into account
Baron’s tactics which the district court described as
obstinate and egregious. J.A. 30; J.A. 32.
Our standard of review warrants deference to the dis-
trict court’s characterization of the litigation dynamics, 3

2 See, e.g., Majority Op. 2 (emphasizing that the
district court did not “set a timetable for Markman pro-
ceedings or for exchanging invalidity or infringement
contentions”); Majority Op. 8−9 (using quotation marks to
underscore the district court’s perceived “duty”).
3 “Questions of trial management are quintessen-
tially the province of the district courts.” United States v.
Smith, 452 F.3d 323, 332 (4th Cir. 2006); see also Stuart
v. Huff, 706 F.3d 345, 350 (4th Cir. 2013) (honoring the
trial court’s “superior vantage point” in “exercising judg-
ment based on [the trial court’s] ‘on the scene’ presence”)
(internal citations omitted). These well settled precepts
are consistent across all Circuits. See, e.g., Outside the
Box Innovations, LLC v. Travel Caddy, Inc., 695 F.3d
1285, 1296 (Fed. Cir. 2012) (“Deference is given to the
district court’s discretion in trial management ‘unless the
 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC 7
especially where, as here, the district court recognized
Baron’s efforts to undermine its established procedures.
The district court noted Baron’s propensity to ignore court
orders “in favor of its own proposed time lines and rules of
procedure.” See J.A. 33, n.16. The record bears out this
observation, demonstrating a pattern of Baron comporting
in a manner that suited its own convenience. For exam-
ple, in response to a multitude of MWI inquiries, Baron
resisted written discovery unless and until the district
court adopted local patent rules and/or set a Markman
hearing. See, e.g., J.A. 174; J.A. 362−85 (declining to
exchange proposed claim constructions because Baron
considered such a request “premature” prior to the court
setting a Markman timetable). The district court ex-
pressed findings on these dilatory tactics and deficient
discovery responses. The written decision reflects the
district court’s frustration with the manner in which
Baron prosecuted its case:
[T]he plaintiff relies on its request for a hearing
and the timetable offered by it that was never
adopted by the court as a reason it does not have
to respond to discovery. The plaintiff did not ad-
dress the fact that the requests for admission, as
well as the remainder of the discovery propounded
by the defendant were all in accordance with the
Scheduling Order actually entered by this court.
J.A. 23, n.9 (emphasis in original).

ruling is manifestly erroneous.’”) (quoting United States v.
Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc));
United States v. Criden, 648 F.2d 814, 817–18 (3d Cir.
1981) (where the trial court has a “superior vantage
point” from which to resolve the question, its decision
“merits a high degree of insulation for appellate revi-
sion”).
8 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC
Baron’s efforts to dictate the trajectory of court pro-
ceedings should not have gained traction on appeal.
While some districts and individual judges have elected to
impose local patent rules, the district court was under no
obligation to incorporate Baron’s requests into the docket
control order. Nor was the district court obligated to hold
a Markman hearing prior to summary judgment, 4 as
demonstrated by Baron’s failure to cite authority that it
was entitled to a hearing as a matter of right. This court,
on previous occasions, has chastised district courts for
conducting a trial without rigorous claim construction
efforts. E.g., Allen Eng’g Corp. v. Bartell Indus., Inc., 299
F.3d 1336, 1346 (Fed. Cir. 2002); Graco, Inc. v. Binks Mfg.
Co., 60 F.3d 785, 791 (Fed. Cir. 1995). These decisions
are procedurally distinct from the situation presented in
this case. Our prior discussions of the need for claim
interpretation have not demanded that claims be con-
strued in advance of summary judgment, and important-
ly, in Allen Engineering and Graco the parties did not
diminish the need for the district court to construe the
claims by voluntarily defining the parameters of nonin-
fringement. Here, the district court had no need to exam-
ine the meaning of the claims in exacting detail because
Baron’s explicit concessions shaped the infringement

4 To the contrary, in the context of a given case,
claim construction can, and does, occur solely based on
the paper record. E.g., Interactive Gift Express, Inc. v.
Compuserve Inc., 1998 WL 247485 at *1, n. 3 (S.D.N.Y.
May 15, 1998) (“The Court notes at the outset that no
Markman hearing is needed in this case because the
Court does not require expert or other testimony to aid it
in its claim construction.”), vacated on other grounds, 256
F.3d 1323 (Fed. Cir. 2001); Revlon Consumer Prods. Corp.
v. Estee Lauder Co., Inc., 2003 WL 21751833, at *14
(S.D.N.Y. July 30, 2003) (collecting district court cases).
 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC 9
analysis by narrowing the scope of its claims when com-
pared the claims with the accused products.
I believe that the district court acted reasonably by re-
lying on Baron’s statements regarding the potential
noninfringing operation of the accused products, and that
such reliance negated the district court’s obligation to
further define terms in the asserted claims. Compare
with Majority Op. 15, n.13 (critiquing the district court’s
handling of claim construction in performing the in-
fringement analysis). The majority’s reasoning encroach-
es upon a district court’s discretion to manage a case, and
its critiques amount to appellate pronouncements on case
management. The majority states that “[t]he importance
of claim construction is quite evident here,” Majority Op.
15, n.13, an assessment that indicates how the majority
would have handled the case if wearing the district court’s
robe. But that is not the inquiry on appeal. The issue on
appeal is whether the record evidence supports the entry
of summary judgment and whether the district court
abused its discretion in its case management decisions.
The majority also pays significant attention to Baron’s
claims regarding its need for MWI’s source code, yet
Baron has no absolute entitlement to this discovery given
its failure to demonstrate good cause as to why the source
code was relevant to the alleged infringement. J.A.
164−65. I find that the source code issue is but one part
of Baron’s litany of unsubstantiated discovery grievances
that feint towards evidence that is not in the record to
divert attention from the unrebutted evidence that is in
the record. E.g., Majority Op. 11−14.
The majority likewise errs in proclaiming, without
confronting the salient facts in the record, that the dis-
trict court “refused” to permit depositions of Mr. Fannin
and Ms. Ritterbusch. Majority Op. 13. The actual corre-
spondence between the parties contradicts this assertion
and shows that Baron could have taken Mr. Fannin and
10 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC
Ms. Ritterbusch’s depositions prior to the summary judg-
ment hearing. J.A. 970−71. The parties had notice as to
when the summary judgment motion would be heard and
once the MWI witnesses were made available it behooved
Baron to secure the testimony it needed to survive sum-
mary judgment, or at minimum to seek protective relief
from the court. Instead, Baron affirmatively chose to not
take depositions prior to the summary judgment hearing
and to actually declare it would delay securing that
testimony after the district court considered the summary
judgment positions. This was a strategic choice for which
it should bear the consequences. It is not our duty to
repair a party’s self-inflicted wounds.
CONCLUSION
While I agree that parties generally should be permit-
ted to develop the record, obtain claim construction, and
engage in discovery prior to consideration of summary
judgment, a party should not be permitted to escape
summary judgment through deliberate trial strategies.
Barfield v. Brierton, 883 F.2d 923, 932 (11th Cir. 1989)
(explaining that it is within a district court’s discretion to
refuse to stay consideration of a motion for summary
judgment “if the district court is dissatisfied with the
nonmovant’s explanations as to why he cannot rebut the
movant’s motion for summary judgment”) (citing Wallace
v. Brownell Pontiac-GMC Co., Inc., 703 F.2d 525, 527
(11th Cir. 1983)). The record in this case supports the
conclusion that the district court allowed discovery to run
its course and after Baron made concessions regarding
what constituted noninfringing activity, the district court
evaluated the evidence of record and correctly found that
Baron “failed to provide any evidence of specific actions,
processes, or procedures of [MWI’s] product that follow
the steps of plaintiff’s patent.” J.A. 26. Eleventh Circuit
case law confirms that the district court was correct to
consider whether summary judgment was appropriate
based on the record before it. Holloman v. Mail-Well
 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC 11
Corp., 443 F.3d 832, 836 (11th Cir. 2006) (appellate
review of a district court’s grant or denial of summary
judgment considers “only the evidence that was available
to the district court at the time it considered the motion”)
(internal citation omitted).
The majority adopted Baron’s procedural perspective
and was dismissive of the district court’s role in setting
the tone and schedule for case management and discovery
disputes. In my view, the district court is endowed with
broad discretion to decide the manner it will run a case.
FED. R. CIV. P. 16; Pac. Indem. Co. v. Broward County,
465 F.2d 99, 103 (11th Cir. 1972) (noting that Rule 16
“gives the trial court broad discretion in conducting pre-
trial procedures in order to narrow the issues, reduce the
field of fact controversy for resolution, and to simplify the
mechanics of the offer and receipt of evidence”); accord
Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir.
1998) (“The Civil Rules endow judges with formidable
case-management authority. . . . In exercising this power,
trial judges enjoy great latitude.”) (internal citations
omitted). Here, the record shows that the district court
acted well within the bounds of reasonableness in denying
Baron’s case management and discovery requests. Cf.
Vivid Tech., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795,
803−04 (Fed. Cir. 1999) (affirming a district court’s deci-
sion to limit discovery as appropriate in each phase of the
litigation). Because I find that the district court did not
abuse its discretion and that the record supports sum-
mary judgment, I respectfully dissent.