Patent Claims Against Kayak Kept Intact

     (CN) – The travel website Kayak must face claims that it infringed on a patent for a computer system that processes requests for quotes between buyers and sellers, a federal judge ruled.
     The dispute stems from a “Computerized Quotation System and Method” patent Joseph Giovannoli secured for his business, Source Search Technologies LLC, on May 26, 1998.
     The ‘328 patent describes a computerized system for processing “requests for quotations” (RFQs) between buyers and sellers over a network.
     A patent re-examination request on Aug. 11, 2011, led to the cancelation, addition and modification of several of the patent’s claims, as well as the issuance of a certificate on March 21, 2013.
     Source Search sued Kayak Software Corp. for infringement that year in Newark, N.J. In a claim-construction opinion issued for the disputed terms this past January, U.S. District Judge Faith Hochberg wrote that Claims 12 and 20 both describe methods that include filtering a “request for quotation in order to ascertain a set of sellers potentially capable of supplying said goods or services” and obtaining an RFQ from at least one seller “previously ascertained by said filtering.”
     Kayak moved for summary judgment regarding damages, noninfringement, and invalidity due to anticipation and obviousness.
     Hochberg denied the motion regarding damages and invalidity on June 16, finding that Source Search did not greatly change claim 12 by adding the words “for quotation” after the term “request” during re-examination.
     “The step of obtaining quotes after ascertaining a set of sellers was implicit in the original claim,” the ruling, which is marked unpublished and sealed, states. “There is no other reasonable interpretation of original claim 12, and the addition of the phrase ‘previously ascertained by said filtering said request for quotation’ during reexamination was not a substantive change. Therefore, damages are not confined to the period after the reexamination certificate issued.”
     Hochberg also threw out Kayak’s argument that patent claim 20 did not exist until after the re-examination.
     “Claims 12 and 20 are almost identical,” Hochberg wrote. “There are slight variations in their language in the obtaining step of the claims, but these variations do not change the meaning of claim 20. Indeed, it is clear from the prosecution history that ‘responsive to said filtering’ was added to clarify that the step of obtaining quotes from potential sellers must come after the filtering step (a requirement that was already implicitly present in original claim 12). Claim 20 is coextensive with claim 12. Therefore, the discussion above with respect to claim 12 applies to claim 20, and Kayak is not entitled to limit any potential damages to after the issuance of the reexamination certificate.” (Parentheses in original.)
     Citing disputes of material fact, the court refused to grant summary judgment on laches, a doctrine that essentially means Source Search slept on its rights.
     “Kayak may re-raise this defense at trial, and the court will decide it with the benefit of a full record, live testimony, and cross examination,” Hochberg wrote.
     Kayak does however qualify for judgment regarding noninfringement.
     “If the ‘price and terms’ response from Kayak is insufficient to form a binding contract at that price and upon those terms such that a user cannot simply click ‘accept,’ or its equivalent, to obtain a binding contract, that search query and response by Kayak does not infringe,” Hochberg wrote. “As to such website interactions on the Kayak site, summary judgment of non-infringement is granted.”

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