I've gotten a couple of requests for comment on this subject. Perhaps the following will be helpful.
First, as Eastcoast has mentioned, the fact that Barco makes a good argument in favor of summary judgment is certainly to be expected. Why would a party file such a motion and say they don't have a good position? Remember, when good lawyers are involved for all sides in a case, you will be able to read the pleadings of any of them and they will all sound very convincing. Just because a lawsuit is filed doesn't mean the plaintiff will prevail, and, similarly, just because a motion if filed doesn't mean the mover will prevail.
Second, one of the reasons for filiing a MSJ is to "smoke out" the opposition. This seems to be borne out in the present matter by Barco's reliance on the Exigent case, with Barco asserting that the holding in that matter provides the following standard in order to prevail: "...a party seeking summary judgment of noninfringement need not present evidence of noninfringement. Instead, a party may move for summary judgment of noninfringement by stating the limitations that are not met by its product, pointing out how they are not met, and stating that the patent holder does not have evidence of infringement". I have not read Exigent, but if Barco is citing it accurately and in the proper context, then Barco's own motion would seem to indicate that Barco's intention is directed at early disclosure by TPL of specific evidence of infringement. I cannot recall whether depositions concerning infringement have yet begun or, if so, whether they have substantially progressed, but, in any event, Barco's strategy is smart, and is also likely an attempt at being cost effective.
Third, please recall that all it takes to defeat a MSJ is to show that there are material facts in dispute (and/or that the law is not in favor of the mover). As a result, and assuming that TPL intends to contest the motion, I would expect we will see affidavits filed from experts assering specific elements of infringement. Even if Barco's experts say something to the contrary, which I would certainly assume will occur, there is still a dispute in existence, and, theoretically, the motion should thus be denied.
The above is inteneded merely as an overview of the situation, and, obviously, cannot take into account every variable that might occur. For instance, it is true that summary judgment is usually easier to obtain in federal court, and this factor thus somewhat favors Barco, although it does not overcome the standard necessary to prevail, or, conversely, what is necessary to defeat such a motion. It is also possible that some pivotal point could be made in discovery, either by deposition or in some document somewhere, that might "make" or "break" the case. However, further dicussion of such issues at this juncture quickly gets into the realm of undue speculation.
The bottom line is that, while we shouldn't simply assume the motion is completely meritless, it is likewise true that the filing of this motion shouldn't be keeping anyone awake at night. It is not an unusual tactic, and, assuming TPL intends to engage in serious prosecution of the case, I would be surprised if we do not see vigorous opposition.
Best wishes to all.
