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The U.S. Circuit Court of Appeals for the Federal Circuit on Sept. 18 vacated a district court’s grant of summary judgment of non-infringement for Symantec Corp. In the case, Hilgraeve Corp. asserted that Symantec was not licensed to use the invention claimed in U.S. Patent No. 5,319,776, relating to computer virus detection software. The Federal Circuit said a fact finder would have to decide if Symantec’s Norton anti-virus software intercepts computer viruses before or after the digital data is “stored” on a computer. Hilgraeve Corp. v. Symantec Corp., No. 00-1373, 00-1374 (Fed. Cir. 2001) The court also affirmed the Eastern District of Michigan’s decision that Symantec, an Internet security software and applications company, did not license the patent at issue, which describes a method of intercepting viruses while digital data is being transferred. This is the second such case to come before the Federal Circuit. Last year, the court vacated judgment for the defendant in Hilgraeve Corp. v. McAfee Associates on similar claims of infringement asserted by Hilgraeve and sent that case back for a determination of whether McAfee products intercept data before storage. Hilgraeve Corp. v. McAfee Associates 70 F. Supp. 2d 738 (E.D. Mich. 1999), 224 F.3d 1349, 55 USPQ2d 1656 (Fed. Cir. 2000). In this latest opinion, the court reiterated its construction of “storage” as referring to “any storage medium of the computer system, if the data, when stored on the medium, are accessible to the operating system or other programs, such that viruses in the data can spread and infect the computer system.” The Eastern District of Michigan accepted Symantec’s argument that its products prevent the spread of viruses after they are stored on the recipient computer but before they are accessed by the operating system and allowed to spread. But the Federal Circuit declined to adopt the opinion of Symantec’s expert, saying tests which purported to show that the data were “stored” and could be retrieved before the virus could spread could not be used to prove non-infringement during normal operating procedures. On the licensing defense, the court affirmed the Eastern District of Michigan’s denial of summary judgment for Symantec, based in Cupertino, Calif. Symantec contends that a 1993 Technology Transfer Agreement between Hilgraeve and Delrina Corp., later acquired by Symantec, transferred all copyright rights to the software to Delrina and should be read as implicitly transferring patent rights as well. The Federal Circuit, however, said it could not conclude that the omission of patent-transfer language in the section relied on by Symantec “was accidental or that the transfer of patent rights is implicit anywhere in the contract.” Counsel for Symantec: Martin C. Fliesler, Burt Magen and Sarah B. Schwartz of Fliesler Dubb Meyer & Lovejoy in San Francisco and Dennis J. Levasseur of Bodman Longley & Dahling of Detroit. Counsel for Hilgraeve: Ernie L. Brooks, Thomas A. Lewry, Robert C.J. Tuttle, John E. Memazi and Frank A. Angileri of Brooks & Kushman of Southfield, Mich.

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