Recently we wrote of a case (see A Lack of Control) wherein the method claims of the patent-in-suit were found to be not infringed because, in the Court’s analysis, “the claims require multiple actors … and … there is no dispute that the parties involved do not control or direct each other’s actions …” Well, now we have another case, from a different court, decided only 13 days later, which seemingly comes to the opposite result. (Kenexa BrassRing Inc. v. Taleo Corporation et al.)
Kenexa sued Taleo, alleging infringement of patents directed to “systems and methods for collecting and maintaining information about job applicants.” The relevant method claims recite the steps of:
1. supplying digital data (a job seeker’s resume);
2. processing the data;
3. displaying a form or template with the processed data inserted therein;
4. enabling the party supplying the data (the job seeker) to modify or accept the completed form; and
5. storing the approved data in a database.
Taleo moved for a summary judgment of noninfringement, arguing that at least step 1 – supplying the data – was performed not by it, but by another party – the job seeker – who was not subject to Taleo’s direction or control. Indeed, the data was input from the job seeker’s own computer, which was not supplied by Taleo.
Surprisingly – to those of us who read the Zamora Radio decision discussed in the aforementioned blog – motion denied!
In this case, the Court had construed the term “supplying” as meaning that the system supplied the processor with a resume stream that was supplied at an earlier time by one or more job seekers. “The performance of the method occurs after the user has supplied the data.” (emphasis in the original) “Defendants are unable to make a divided infringement argument because it is the software that performs all necessary steps of the patent. A user [the job seeker] is necessarily involved at least at some point in most computer method patents; simple involvement, however, is not enough to give rise to divided infringement … If simple user involvement were enough to give rise to divided infringement, few, if any software patents could be infringed.”
What about the fact that the job seekers’ computers were not supplied by Kenexa? This was a critical factor in the Zamora Radio decision. It was not even mentioned by this Court!
THE LESSON TO BE LEARNED: Sometimes victory may be simply a matter of lucking into the right court, or drawing the right judge.