Certusview Tech LLC v. S & N Locating Services LLC

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: CertusView Technologies, LLC (Florida)
  • Defendant: S & N Locating Services, LLC and S & N Communications, Inc. (North Carolina)
  • Plaintiff’s Counsel: Foley & Lardner LLP
• Case Identification: 1:13-cv-00646, E.D. Va., 05/29/2013
• Venue Allegations: Plaintiff alleges venue is proper in the Eastern District of Virginia because Defendants reside in the judicial district.
• Core Dispute: Plaintiff alleges that Defendant’s underground facility locating services infringe patents related to the creation of searchable electronic records of locate operations and the electronic display of marker dispensing using location data.
• Technical Context: The technology at issue pertains to modernizing the documentation of underground utility locations by replacing manual, paper-based records with digital, geo-referenced data to improve accuracy and verifiability.
• Key Procedural History: The complaint does not allege any significant prior litigation, administrative proceedings, or licensing history related to the patents-in-suit.

Case Timeline

Date	Event
2007-03-13	’001 Patent Priority Date
2008-03-18	’204 Patent Priority Date
2012-09-11	U.S. Patent No. 8,265,344 Issue Date
2012-10-16	’204 Patent Issue Date
2012-12-25	U.S. Patent No. 8,340,359 Issue Date
2013-03-26	’001 Patent Issue Date
2013-05-29	Complaint Filing Date

II. Technology and Patent(s)-in-Suit Analysis

No probative visual evidence provided in complaint.

U.S. Patent No. 8,290,204 - "Searchable electronic records of underground facility locate marking operations," issued October 16, 2012

The Invention Explained

• Problem Addressed: The patent’s background section describes the deficiencies of traditional methods for documenting underground facility locate operations, noting that hand-drawn sketches are often not to scale, prone to error, and time-consuming to create. Furthermore, storing these records as paper manifests or simple digital images makes them difficult to search or analyze in a "mechanized way" (’204 Patent, col. 2:38-48).
• The Patented Solution: The invention provides a method and system for creating a verifiable and "searchable electronic record" of a locate operation (’204 Patent, Abstract). The process involves electronically receiving an "input image" of the work area (e.g., an aerial photograph or a map), displaying it on a device, and allowing a user to add "digital representations" of the physical marks (e.g., paint lines) onto the image to create a "marked-up image" (’204 Patent, col. 2:49-65; FIG. 9). This complete electronic record, combining the image and the digital marks, can then be electronically stored and transmitted.
• Technical Importance: This technology facilitates a shift from ephemeral, error-prone paper records to permanent, geo-referenced, and searchable digital manifests, thereby improving the accuracy, verifiability, and data management capabilities for the utility locating industry (’204 Patent, col. 2:38-48).

Key Claims at a Glance

• The complaint asserts infringement of the patent generally, with independent claims 1 (method) and 21 (apparatus) being representative. Claim 1 includes the following essential elements:
  • Electronically receiving source data representing at least one input image of a geographic area that includes the dig area.
  • Processing the source data to display at least a portion of the input image on a display device.
  • Adding at least one digital representation of a physical locate mark to the displayed image to generate a marked-up image.
  • Electronically transmitting and/or storing information relating to the marked-up image to generate the searchable electronic record.
• The complaint reserves the right to assert additional claims (Compl. ¶14).

U.S. Patent No. 8,407,001 - "Systems and methods for using location data to electronically display dispensing of markers by a marking system or marking tool," issued March 26, 2013

The Invention Explained

• Problem Addressed: The patent identifies the difficulty of proving whether an underground utility was accurately marked after an excavation has occurred, because the physical markings (e.g., paint) are often disturbed or destroyed during the excavation process (’001 Patent, col. 1:41-47).
• The Patented Solution: The invention is a system that captures location data (e.g., from a GPS receiver in a marking tool) during the physical act of marking a utility line. A processor uses this location data to control a display device, which in turn "visually display[s] a dispensing of the one or more markers on an electronic representation of an area that is marked" (’001 Patent, Abstract). This creates a durable electronic record of the physical marking activity itself, linking the act to specific geographic coordinates.
• Technical Importance: The invention creates a verifiable digital "replay" of the physical marking process by linking the act of dispensing a marker to precise location data, thereby generating a robust record of the work performed that survives the destruction of the physical marks (’001 Patent, col. 7:35-45).

Key Claims at a Glance

• The complaint asserts infringement of the patent generally, with independent claim 1 (system) being representative. Claim 1 includes the following essential elements:
  • A processor that receives location data related to the use of a marking tool.
  • A display device coupled to the processor.
  • The processor uses the location data to control the display device to "visually display a dispensing" of markers on an electronic representation of the marked area.
• The complaint reserves the right to assert additional claims (Compl. ¶18).

III. The Accused Instrumentality

Product Identification

The complaint does not identify any accused products or services with specificity, referring only to "devices and/or services" used by the S & N Defendants in their business of locating underground infrastructure (Compl. ¶¶14, 18).

Functionality and Market Context

The complaint does not provide sufficient detail for analysis of the functionality or market context of the accused instrumentalities.

IV. Analysis of Infringement Allegations

The complaint does not provide sufficient detail for a claim-chart analysis. It makes only conclusory allegations that the S & N Defendants infringe by "making, using, offering to sell, and/or selling devices and/or services covered by the claims" of the patents-in-suit (Compl. ¶¶14, 18). No specific features of any accused instrumentality are mapped to the elements of any asserted claims.

• Identified Points of Contention:
  • Given the lack of factual allegations, the initial point of contention will likely be evidentiary. A primary factual question for the litigation will be what specific "devices and/or services" provided by S & N perform the functions described in the patents, such as creating electronic records from input images or using location data to display marker dispensing.
  • A potential technical question for the ’204 Patent is whether S & N's systems, once identified, generate a "marked-up image" by adding a "digital representation" of a physical mark, or if they operate on a different principle.
  • A potential technical question for the ’001 Patent is whether S & N's systems use "location data" from a marking tool to "visually display a dispensing" of markers, or if they merely log location data without the claimed visual display component.

V. Key Claim Terms for Construction

For the ’204 Patent:

• The Term: "digital representation of the at least one physical locate mark" (Claim 1)
• Context and Importance: The scope of this term is central to defining what constitutes an infringing electronic record. Practitioners may focus on this term because its construction will determine whether the claim covers only graphical overlays (e.g., lines on a map) or extends to non-graphical data sets (e.g., a list of coordinates) that represent the physical marks.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification suggests the term is not limited to simple lines, stating that "locate mark indicators" can include "lines, drawing shapes, shades, symbols, coordinates, data sets, or other indicators" (’204 Patent, col. 15:53-57).
  • Evidence for a Narrower Interpretation: The patent’s figures and primary embodiments consistently depict visual, graphical overlays added to an underlying image to create a "marked-up image," which may suggest the "representation" must be graphical in nature (’204 Patent, FIG. 9, col. 2:58-62).

For the ’001 Patent:

• The Term: "visually display a dispensing" (Claim 1)
• Context and Importance: This term is critical for determining the nature of the required output. Practitioners may focus on this term because its definition will clarify whether the claim requires a real-time, animated depiction of the marking process or if a static display of a completed mark path, generated from logged data, is sufficient.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification contemplates both real-time display and post-hoc reconstruction, stating that logged data "may be used to visually depict (e.g., in real time as the dispensing occurs) or reconstruct (e.g., at a later time after the dispensing is complete) the dispensing of the markers" (’001 Patent, col. 7:35-45). This could support an interpretation where a static, reconstructed image of the final marks satisfies the limitation.
  • Evidence for a Narrower Interpretation: The use of the gerund "dispensing" implies an action or process. This could support an argument that the claim requires a visual depiction of the action itself, not merely the static result, to provide the intended verifiable record of the physical work.

VI. Other Allegations

• Indirect Infringement: The complaint alleges that Defendants have been "actively and intentionally inducing others to infringe" the patents-in-suit (Compl. ¶¶14, 18). However, it does not plead any specific facts to support the requisite knowledge or intent, such as by referencing user manuals, product instructions, or other materials that allegedly instruct third parties on how to perform the claimed methods.

VII. Analyst’s Conclusion: Key Questions for the Case

• A central question will be one of evidentiary sufficiency: can Plaintiff, through discovery, identify specific devices or services of the Defendants that practice the methods claimed in the patents? The complaint’s failure to identify any accused instrumentality makes this the foundational issue upon which the entire case rests.
• A key legal issue will be one of definitional scope: how broadly will the court construe key claim terms such as "digital representation" and "visually display a dispensing"? Whether these terms are interpreted to cover non-graphical data sets and static, post-process images, respectively, will likely be determinative of infringement once the technical details of the accused services are established.