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Raytheon Co. v. Cray, Inc.

United States District Court, W.D. Wisconsin

April 15, 2019

RAYTHEON COMPANY, Plaintiff,
v.
CRAY, INC., Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE

         In this patent case, plaintiff Raytheon Company asserts infringement claims against defendant Cray, Inc., based on two software-related patents. This case was originally filed in the Eastern District of Texas. The Texas district court issued an order construing a number of patent claims. (Dkt. #263.) Now before this court is defendant's motion for summary judgment on three, basic grounds: (1) plaintiff's direct infringement claims fail as a matter of law or, in the alternative, plaintiff lacks sufficient evidence from which a reasonable jury could find direct infringement; (2) plaintiff's induced infringement claims fail as a matter of law or, in the alternative, no reasonable jury could find induced infringement; and (3) even if its claims proceed to trial, plaintiff should be barred from pursuing damages based on sales to the United States under 28 U.S.C. § 1498. (Dkt. #392.)

         On January 10, 2019, the court held a hearing on defendant's motion for summary judgment. For the reasons that follow, the court will grant defendant's motion, finding that the undisputed record forecloses a finding of direct infringement as to both patents-in-suit. Specifically, the court concludes that: (1) the alleged infringing technology does not meet the implicit ordering requirement in the independent claims of the '714 patent, which require “shutting down” after selection of the node and retrieval of the policy; and (2) the alleged infringing technology does not meet the “plurality of hosts each executable at any of the nodes” limitation in the ‘274 patent because of the presence of service nodes. These findings, in turn, moot defendant's challenges to plaintiff's induced infringement claims, as well as plaintiff's damages theory.

         In addition, plaintiff Raytheon seeks summary judgment on defendant Cray's counterclaims for unjust enrichment and conversion.[1] (Dkt. #388.) For the reasons explained below, the court concludes that Cray has failed to put forth evidence to support a finding that Raytheon used any confidential information its employee Ballew obtained or accessed through his role on an external review committee. Accordingly, the court will also grant plaintiff's motion for summary judgment, entering judgment in its favor on these two, state law counterclaims.

         UNDISPUTED FACTS [2]

         A. The Parties and Origins of This Lawsuit

         Plaintiff Raytheon Company is a Delaware corporation with its principal place of business in Waltham, Massachusetts. Defendant Cray, Inc., is a Washington corporation with its principal place of business in Seattle, Washington.

         Raytheon's licensing representative, Charles Neuenschwander of International Patent Licensing Co., sent Cray a letter dated March 20, 2015, asserting that Cray was infringing Raytheon's U.S. Patent No. 7, 475, 274 (“the '274 patent”) and U.S. Patent No. 8, 190, 714 (“the '714 patent”), among others. There is no evidence that Cray was aware of these patents before receiving that letter.

         On July 15, 2015, Cray filed an action in the Western District of Washington seeking a declaratory judgment of non-infringement as to nine of the patents Raytheon accused Cray of infringing, including the '274 and '714 patents. On September 25, Raytheon granted Cray a covenant not to sue as to five of the nine patents. That same day, Raytheon filed a complaint in the Eastern District of Texas alleging that Cray infringed the other four patents, the '274 patent and the '714 patent, along with two patents that are no longer part of this lawsuit -- U.S. Patent No. 8, 335, 909 (“the '909 patent”) and U.S. Patent No. 9, 037, 833 (“the '833 patent”). This case progressed with the filing of infringement contentions and amendments to the same, an order on claims construction, serving of expert reports and extensive summary judgment briefing.

         At that point, however, Cray challenged whether venue was proper in the Eastern District of Texas based on the Supreme Court's narrowing of the law of venue for patent cases in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S.Ct. 1514 (2017). On June 29, 2017, the Texas district court issued an order finding that venue to be proper. Cray then filed a petition for writ of mandamus seeking reversal of the district court's decision and a transfer of the lawsuit to this court. On September 21, 2017, the Federal Circuit granted Cray's petition, directing the Texas court to transfer the case to an appropriate venue. On April 5, 2018, the Texas court ordered that the case be transferred to this court. The transfer became official on May 2, 2018.

         After the transfer, Raytheon withdrew its claims relating to the '909 and '833 patents, and the court directed the parties to submit summary judgment briefs, limited to those issues already raised in their motions submitted in Texas, scheduled a hearing on summary judgment, and set a trial date.

         B. The Patents-in-Suit and Claims Construction

         1. The '714 Patent

         The '714 patent is entitled “System and Method for Computer Cluster Virtualization Using Dynamic Boot Images and Virtual Disk.” (Compl., Ex. B (“'the 714 patent”) (dkt. #2-1).) At least in part, the '714 patent is directed at systems and methods for on-demand “provisioning” of computers with a “cluster” to manage and run “distributed applications” on the cluster. The patent defines “provisioning” as “the process of instantiating compute resources to the enterprise application by copying the local disk from a repository to the resource.” ('714 patent at 1:29-32.) The patent describes that typically provisioning takes over ten minutes, but the claimed invention can reduce that time to 15 seconds or less. (Id. at 1:29-34, 50-54.) A “cluster” is a group of computers that may be connected by a network coordinated by software. A “distributed application” or “job” is a piece of software created to address a large computing task that is split into pieces so it can be solved in parallel on many nodes working together. The parties define “node” as a “computing device.”

         Before Raytheon's submission of the '714 patent application, Cray does not dispute, at least materially, that typically High-Performance Computing (“HPC”) Systems ran on dedicated computing resources within a system. Often, different applications required different computer environments, and switching an application from one computing device to another could require time-consuming resetting of the environment. Cray points out, however, that the concept of “provisioning” was already known at the time of the '714 patent application. (Def.'s Resp. to Pl.'s Add'l PFOFs (dkt. #450) ¶ 6.)

         The '714 patent is also directed at software that will select available nodes from the cluster to run a distributed application, automatically shut down a selected node, and load that node with the operating system data to make it compatible. In doing so, the patent purports to disclose an efficient system for managing computers in a cluster by reducing the time required to ready each “node” to run a portion of a distributed application or job.

         Raytheon alleges that Cray supercomputers infringe independent claims 1 and 29, as well as dependent claims 2, 4-6, 9, 11-14, 30, 32-34, 37 and 39-42 of the '714 patent. Independent claim 1 discloses a method comprising:

selecting a distributed application;
retrieving a policy associated with the distributed application;
dynamically selecting one of a plurality of nodes;
resetting a boot image of the selected node based at least in part on the retrieved policy,
wherein the boot image being compatible with the distributed application,
wherein resetting the boot image of the selected node comprises:
automatically shutting down the selected node;
resetting the boot image of the selected note;
and restarting the selected node using the reset boot image;
associating a virtual disk image with the selected node based at least in part on the retrieved policy; and
executing at least a portion of the distributed application on the selected node, as reset, using the virtual disk image associated with the selected node, the execution performed by at least one processor of the selected node.

         ('714 patent at 9:34-10:4.) Independent claim 29 contains a number of overlapping terms, but as opposed to a method, discloses a system comprising:

a plurality of nodes, each node comprising at least one processor; and
a management node communicably coupled to the plurality of nodes, the management node operable to:
select a distributed application; retrieve a policy with the distributed application; dynamically select one of a plurality of nodes;
reset a boot image of the selected node based at least in part on the retrieved policy, wherein the boot image being compatible with the distributed application, wherein, to reset the boot image of the selected node, the management node is operable to: automatically shut down the selected node; reset the boot image of the selected node; and restart the selected node using the reset boot image;
associate a virtual disk image with the selected node based at least in part on the retrieved policy; and execute at least a portion of the distributed application on the selected node, as reset, using the virtual disk image associated with the selected node.

         ('714 patent at 12:25-43.)

         The Texas district court previously construed the following terms in the '714 patent:

• “nodes” means “computing devices”
• “distributed application” means “a single instance of an application running across more than one node”
• “boot image” means “operating system data that is used to initialize a node”
• “[resetting / reset] a boot image of the selected node” has its plain meaning[3]
• “policy associated with the distributed application” means “one or more parameters that define the required characteristics of an execution environment in order to run the distributed application”
• “dynamically [selecting / select] one of a plurality of nodes” to mean “[selecting/select] a node at least in part at run-time based on one or more variables”
• “[associating / associate] a virtual disk image with the selected node” to mean “[providing/provide] the selected node with a pointer or other reference to a virtual disk drive”

         (6/12/17 Order (dkt. #263) 9, 28, 38, 41, 45, 48, 49.)

         2. The '274 Patent

          The '274 patent is entitled “Fault Tolerance and Recovery in a High-Performance Computing (HPC) System.” (Compl., Ex. A (“'274 patent”) (dkt. #1-1).) The '274 patent is directed to handling node failures -- referred to as faults -- in an HPC system. The patent describes a system with a plurality of nodes, monitoring the status of the nodes for the occurrence of faults in executing hosts to run jobs and, in the event of a fault, substituting a free node in the system for the faulty node by discontinuing operation of the faulty node and booting the host at the free node.

         Ordinarily, when a computer experiences a hardware failure, software and stored data remain unavailable until the failure has been resolved. Addressing this failure may require someone to identify manually where the error occurred and attempt to reroute the work to functioning nodes. Without fault tolerance, a large job involving many nodes might simply terminate and sit idle until someone intervened to restart the job on working nodes. Cray does not materially dispute any of this, although it asserts that even before the '274 patent, high-end supercomputers already included features providing for “fault intolerance operation.” (Def.'s Resp. to Pl.'s Add'l PFOFs (dkt. #450) ¶ 1.) Regardless, the '274 patent purports to improve upon prior art systems by dynamically recovering from job faults, which is achieved by a manager (a part of the software) monitoring the nodes to identify faults, and in the event of a fault, provisioning a free node with the proper execution environment and operating system (i.e., the same one running on the failed node) and transferring the pending job to the new node for completion.

         Raytheon alleges that Cray supercomputers infringes independent claims 1, 16, 27 and 38, as well as dependent claims 2-8, 10, 12-15, 17-23, 25, 28-34 and 36. Independent claim 1 of the '274 patent provides:

A system for fault tolerance and recovery in a high-performance computing (HPC) system, the system for fault tolerance and recovery comprising;
a fabric coupling a plurality of nodes in an HPC system to each other, each node comprising a switching fabric integrated to a card and at least two processors integrated to the card;
storage coupled to the fabric and accessible to each of the nodes, the storage operable to store a plurality of hosts each executable at any of the nodes; and
a manager coupled to the fabric, the manager operable to monitor a currently running node in the HPC system executing a host and, if a fault occurs at the currently running node, discontinue operation of the currently running node and boot the host at a free node in the HPC system from the storage.

         ('274 patent at 69:16-31.)

         Independent claim 16 recites:

A method for fault tolerance and recovery in a high- performance computing (HPC) system, the method comprising:
monitoring a currently running node in an HPC system comprising a plurality of nodes, a fabric coupling the plurality of nodes of each other and coupling the plurality of nodes to a storage accessible to each of the plurality of nodes and operable to store a plurality of hosts each executable at any of the plurality of nodes, each node comprising a switching fabric integrated to a card and at least two processors integrated to the card; and
if a fault occurs at the currently running node:
discontinuing operation of the currently running node; and
booting a host at a free node in the HC system from the storage.

(Id. at 70:19-34.)

         Independent claim 27 provides:

One or more computer-readable storage media storing logic for fault tolerance and recovery in a high-performance computing (HPC) system, the logic when executed operable to:
monitor a currently running node in an HPC system comprising a plurality of nodes, a fabric coupling the plurality of nodes to each other and coupling the plurality of nodes to a storage accessible to each of the plurality of nodes and operable to store a plurality of hosts each executable at any of the plurality of nodes, each node comprising a switching fabric integrated to a card and at least two processors integrated to the card; and
if fault occurs at the currently running node:
discontinue operation of the currently running node; and boot a host at a free node in the HPC system from the storage.

(Id. at 71:4-22.)

         Finally, independent claim 38 recites:

A system for fault tolerance and recovery in high-performance computing (HPC) system, the system for fault tolerance and recovery comprising computer-readable storage media comprising:
means for monitoring a currently running node in an HPC system comprising a plurality of nodes, a fabric coupling the plurality of nodes to each other and coupling the plurality of nodes to storage accessible to each of the plurality of nodes and operable to store a plurality of hosts each executable at any of the plurality of nodes, each node comprising a switching fabric integrated to a card and at least two processors integrated to the card; and
means for, if a fault occurs at the currently running node:
discontinuing operation of the currently running node; and
booting the host at a free node in the HPC system from the ...

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