United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT AND PARTIAL SUMMARY JUDGMENT
RICHARD G. STEARNS, District Judge.
Before the court are plaintiff EveryScape, Inc.'s motion for summary judgment of infringement (Dkt. #243), and defendant Adobe Systems, Inc.'s motion for summary judgment of invalidity (Dkt. #236), both relating to United States Patent Nos. 7, 327, 374 (the '374 patent) and 7, 593, 022 (the '022 patent). These motions involve the "Clone Brushing Claims" of the '374 and '022 patents.
A clone brush, also known as a clone stamp, is a photo-editing tool used to remove undesirable segments of an image. In 2001, Adobe marketed and sold Photoshop software with a standard clone brush feature. On June 23, 2002, EveryScape's predecessor, Mok3, Inc., filed U.S. Patent Application No. 10/601, 842 ('842 Patent Appl.), entitled "Structure Preserving Clone Brush." In January of 2005, Mok3 released a new product - "Perspective Clone Brush" (PCB) software - as a plug-in tool adaptable to Photoshop. According to EveryScape, the PCB software - disclosed in the '842 Patent Appl., and eventually issued as the '374 and '022 patents - improved on the traditional clone brush by solving the problem of "perspective foreshortening."
In February of 2005, after favorable reviews of the PCB plug-in began to appear in technology-related weblogs, Byong Mok Oh sent an email to Michael Kaplan at Adobe, describing the Mok3 plug-in and providing a link to the Mok3 website. See EveryScape's SOF, Ex. I (Dkt. #299-1) at 2. Under the heading. "Forward of technology related to Photoshop, " Kaplan copied the email from Oh to Adobe coworkers Marc Pawliger, Mark Hamburg, and Greg Gilley. See id. In April of 2005, Adobe launched Photoshop CS2 featuring a "revolutionary new tool, " which Adobe called "Vanishing Point." Since 2005, Adobe has manufactured and sold copies of the accused product in the United States.
According to the sworn declarations of the Senior Corporation Counsel of Corel (a third-party software company based in Ottawa, Canada), and Erik Johnson, a former Corel employee who developed the forerunner of the Painter 7 clone brush, Painter 7 was released in the United States at least as early as July 23, 2001. According to Adobe, Painter 7's clone brush, called xPerspective 4P Cloner, anticipated the PCB software in all material respects.
The EveryScape Patents
The '374 and '022 patents are both entitled "Structure-Preserving Clone Brush, " and list Byong Mok Oh and Fredo Durand as the coinventors. The '374 patent was issued on February 5, 2008, and is comprised of 19 claims. The '022 patent was issued on September 22, 2009, and consists of 32 claims. Claim 1 of the '374 patent is representative.
1. A clone-brushing method of painting in a 2D image, the method comprising:
specifying a first world plane in the 2D image;
providing a source position and a destination position in the 2D image;
identifying a destination region in the 2D image relative to the destination position;
determining a source region in the 2D image corresponding to the destination region in the 2D image including:
defining a transformation that maps the destination position relative to the first world plane to the source position relative to the first world plane using a homography defined by the first world plane, and identifying pixels in the source region of the 2D image corresponding to pixels in the ...