DCT
1:17-cv-01172
Election Systems & Software LLC v. Dominion Voting Systems Inc
Key Events
Complaint
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Election Systems & Software, LLC (Delaware)
- Defendant: Dominion Voting Systems, Inc. (Delaware)
- Plaintiff’s Counsel: Rogowski Law LLC; Senniger Powers LLP
- Case Identification: 1:17-cv-01172, D. Del., 08/21/2017
- Venue Allegations: Venue is alleged to be proper in the District of Delaware because the Defendant is a Delaware corporation.
- Core Dispute: Plaintiff alleges that Defendant’s ImageCast Evolution voting machine infringes a patent related to an integrated voting system that provides an audio ballot option for voters while creating a verifiable paper record of their selections.
- Technical Context: The technology addresses the dual demands in modern elections for voting systems that are accessible to individuals with disabilities and that produce auditable paper trails to ensure election integrity.
- Key Procedural History: The complaint alleges that Plaintiff provided Defendant with notice of the patent-in-suit and its belief of infringement via a letter dated August 4, 2017, approximately two weeks prior to filing the lawsuit.
Case Timeline
| Date | Event |
|---|---|
| 2007-03-15 | U.S. Patent No. 8,991,701 Earliest Priority Date |
| 2015-03-31 | U.S. Patent No. 8,991,701 Issue Date |
| 2017-08-04 | Plaintiff sends pre-suit notice letter to Defendant |
| 2017-08-21 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 8,991,701 - "Integrated Voting System and Method for Accommodating Paper Ballots and Audio Ballots," issued March 31, 2015
The Invention Explained
- Problem Addressed: The patent background describes a need to address public skepticism regarding the integrity of purely electronic voting machines that lack a physical paper record of cast votes, while also providing accessible voting options for individuals who are blind or vision-impaired. (’971 Patent, col. 2:4-16, 42-47).
- The Patented Solution: The invention proposes an integrated voting system that can process manually-marked paper ballots and also provide an "audio ballot" mode. (’971 Patent, col. 2:20-24). In the audio mode, a voter makes selections via an accessible console, the system prints a physical ballot with those selections, the system then scans the newly printed ballot, and finally, it presents an audio representation of the scanned selections back to the voter for final confirmation before the vote is cast. (’971 Patent, Abstract; Fig. 8). This creates a voter-verified paper record for a vote that was initiated via an audio interface.
- Technical Importance: This system architecture provides a method for generating a voter-verifiable paper audit trail (VVPAT) for accessible voting terminals, combining the accessibility of electronic systems with the auditability of paper ballots. (’971 Patent, col. 2:8-16).
Key Claims at a Glance
- The complaint asserts independent claims 1, 17 (system claims), and 40 (method claim). (Compl. ¶25).
- Independent Claim 1, quoted in the complaint, recites the essential elements of an "accessible voting station":
- a voting console operable to present an audio ballot to a voter and receive one or more voting selections entered in response to the audio ballot from the voter;
- a printer operable to print a ballot that includes the entered voting selections;
- a reader operable to scan at least a portion of the printed ballot to determine the voting selections printed thereon; and
- wherein the voting console is further operable to present an audio representation of the scanned voting selections to the voter and receive a confirmation of the audio representation of the scanned voting selections from the voter, wherein the voting selections scanned from the printed ballot and confirmed by the voter are used to cast the scanned voting selections in the election. (Compl. ¶8).
- The complaint does not assert any dependent claims but may do so in the future.
III. The Accused Instrumentality
Product Identification
- Defendant’s "ImageCast Evolution (“ICE”)" voting machine. (Compl. ¶10).
Functionality and Market Context
- The complaint alleges the ICE voting machine is a system that includes a voting station for use in an election. (Compl. ¶11). The complaint contains a photograph of the accused Dominion ICE voting machine, showing a touch screen, a ballot entry slot, and an attached paper ballot. (Compl. ¶10, Exhibit B).
- The accused functionality includes presenting an audio ballot to a voter via headphones, receiving the voter’s selections, printing those selections onto a paper ballot, scanning the printed ballot, and audibly presenting the scanned selections back to the voter for final confirmation before the votes are cast. (Compl. ¶11-15, ¶19).
- The complaint alleges that Dominion makes, uses, imports, offers to sell, and sells these voting systems and equipment in the United States. (Compl. ¶9).
IV. Analysis of Infringement Allegations
’971 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a voting console operable to present an audio ballot to a voter and receive one or more voting selections entered in response to the audio ballot from the voter; | The ICE machine allegedly presents an audio ballot via headphones and receives voter selections through input devices like buttons. | ¶11, ¶12, ¶19, ¶20 | col. 8:52-60 |
| a printer operable to print a ballot that includes the entered voting selections; | The ICE machine is alleged to have a printer that prints the voter's selections on a paper ballot. | ¶13 | col. 8:9-15 |
| a reader operable to scan at least a portion of the printed ballot to determine the voting selections printed thereon; | The ICE machine is alleged to have a scanner or other reader that scans the printed paper ballot. | ¶14 | col. 8:21-25 |
| wherein the voting console is further operable to present an audio representation of the scanned voting selections to the voter and receive a confirmation ... wherein the voting selections scanned from the printed ballot and confirmed by the voter are used to cast the scanned voting selections in the election. | The ICE machine allegedly audibly reads back the scanned selections to the voter for confirmation, and upon confirmation, the votes are cast in the election. | ¶14, ¶15 | col. 16:52-64 |
Identified Points of Contention
- Technical Questions: A central evidentiary question may be whether the accused ICE machine's audio confirmation is generated from data read from the scanned physical ballot, as required by the claim's verification loop, or from an electronic data buffer that exists prior to printing. The complaint alleges the former (Compl. ¶14-15), but the precise source of the data for the audio feedback will be a critical technical fact.
- Scope Questions: The case may raise the question of whether the term "reader" as used in the patent, which describes a "barcode reader" in its preferred audio-ballot embodiment ('971 Patent, col. 8:21-22), can be construed to cover the "scanner or other reader" alleged to be in the accused ICE machine (Compl. ¶14).
V. Key Claim Terms for Construction
The Term: "audio representation of the scanned voting selections"
Context and Importance
This term is critical because it defines the data source for the voter verification step. Infringement hinges on the audio feedback being generated from the data captured after the ballot is printed and scanned, not from data stored in memory before printing. Practitioners may focus on this term because it ensures the physical paper record itself is what the voter verifies.
Intrinsic Evidence for Interpretation
- Evidence for a Broader Interpretation: The complaint does not provide sufficient detail for analysis of arguments for a broader interpretation.
- Evidence for a Narrower Interpretation: The patent specification repeatedly emphasizes this verification loop: "information encoded in the barcodes is read to the voter through the headphones so that the voter can verify that the printed voting selections are correct." (’971 Patent, col. 2:51-55). The flowchart in Figure 8 also depicts a sequential process where "Ballot Scanned" (412) precedes "Scanned Selections Presented To Voter" (414), supporting a strict causal link.
The Term: "reader"
Context and Importance
The construction of "reader" could be pivotal. If the court limits the term to the specific "barcode reader" disclosed in the context of the audio-ballot embodiment, the infringement analysis may depend on the specific type of scanning technology used in the accused ICE machine.
Intrinsic Evidence for Interpretation
- Evidence for a Broader Interpretation: The specification also discloses a "ballot scanner assembly" that uses "contact image sensors to produce a bitmap image" for processing regular paper ballots, suggesting the inventors contemplated different types of scanning technologies within the broader system. (’971 Patent, col. 5:37-45).
- Evidence for a Narrower Interpretation: The specific description of the audio ballot workflow states that the "ballot printer/reader assembly 108" includes a "barcode reader (not shown) operable to read the barcodes printed on the ballot." (’971 Patent, col. 8:21-23). A party could argue this specific disclosure limits the scope of "reader" in the context of the asserted claims directed to the audio ballot function.
VI. Other Allegations
Indirect Infringement
- The complaint alleges induced infringement of at least method claim 40. (Compl. ¶26). This is based on allegations that Dominion provides "instructions and/or guidance to its customers and end-users on the proper use" of the ICE machine in an infringing manner. (Compl. ¶21, ¶27-29).
Willful Infringement
- Willfulness is alleged based on pre-suit knowledge. The complaint states that counsel for ES&S sent a letter on August 4, 2017, that "notified Dominion of the ’701 patent and informed Dominion that its ICE voting machine infringes the ’701 patent." (Compl. ¶22, ¶31, ¶35).
VII. Analyst’s Conclusion: Key Questions for the Case
- A key evidentiary question will be one of data provenance: does the accused machine’s audio confirmation feature generate sound from data physically read off the printed paper ballot, as the claim language requires, or from a pre-print digital data source? The answer will determine if the accused system performs the claimed paper-record verification loop.
- A core issue will be one of definitional scope: can the term "reader," which is described in the patent’s audio-ballot embodiment as a "barcode reader," be construed to cover the potentially different "scanner or other reader" technology allegedly used in the accused product?