The chain of causation required for “initiating” a given operation may be cut off by an intermediary element more closely associated with the “initiation” even if the preceding element begins the process which ultimately results in that operation.
Background / Facts: The patent being asserted here is directed to adding functionality, such as media or advertisements, to a web page via a (second) code module that is dynamically downloadable from an advertisement server. Each asserted claim recites a precursor “embedded” first code module that “retrieves” or “initiates retrieval” of the second code module. In the accused system, “smart tags” (the alleged embedded first code module) are embedded into a developer’s web page. Once the web page is downloaded, however, the browser executes the smart tag to download an intermediary piece of code called “smart code” from a server. The browser then executes the smart code to send various parameters to the server and to request a further “imp code” (the alleged second code module).
Issue(s): Whether, because the embedded smart tag begins a process which ultimately results in retrieval of the imp code, the smart tag “initiates” the retrieval process in the manner claimed.
Holding(s): No. “[The accused] embedded smart tags do not initiate retrieval of the imp code (the alleged second code module); the non-embedded smart code does. In the accused [] systems, the embedded smart tag retrieves an intermediary smart code. This smart code is not embedded under the district court’s construction; it is separately downloaded. After it is retrieved, the smart code, in turn, retrieves the imp code (the alleged second code module). Thus, the [accused] systems cannot literally infringe because they contain two sets of code: one that is embedded but does not retrieve the alleged second code module and another that retrieves the alleged second code module but is not embedded. As the district court correctly concluded, the embedded smart tags do not ‘initiate retrieval of the second code module as required by the claims; rather [they issue] a command to download other code.’ … Because [the accused] non-embedded smart code initiates retrieval of the alleged second code module, there can be no literal infringement.”