Northern District of California Alleviates Bigfoot’s Joint Performance Anxiety

Posted on | March 30, 2008 | 3 Comments

08-1255/08-1256 Digital Impact v. Bigfoot Interactive
ND/CA 05-CV-636

Plaintiff Digital Impact and Defendant Bigfoot Interactive have filed cross appeals after Judge Sandra Brown Armstrong granted Bigfoot Interactive’s motion for summary judgment of noninfringement.  The parties are competitors in the email mass marketing business.  Digital Impact’s patent (6,449,634) claims a method for sensing the file formats used by email clients–i.e., a method for detecting whether email recipients can receive image-rich email ads.  After claim construction, the Court concluded that email users, not Bigfoot Interactive, performed several steps of the asserted method claims.  Digital Impact argued, however, that Bigfoot Interactive should be found to infringe under the "joint performance" theory because it exercised sufficient control over end users.  Judge Brown Armstrong disagreed, distinguishing Digital Impact’s argument from its chief case in support (Hill v. Amazon, 2006 WL 151991 (E.D. Tex. 2006)).  Those interested in the "joint performance" theory should check out Sriranga Veeraraghavan’s article cited in the opinion.  As for the cross appeal, Bigfoot Interactive simply preserved a counterclaim for invalidity that was dismissed as moot.

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