Doggyphone LLC v. Tomofun LLC

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DOGGYPHONE LLC,
Plaintiff-Appellant
v.
TOMOFUN LLC,
Defendant-Appellee
______________________
2023-1791
______________________
Appeal from the United States District Court for the
Western District of Washington in No. 2:19-cv-01901-BJR,
Senior Judge Barbara Jacobs Rothstein.
______________________
Decided: November 21, 2024
______________________
DAVID ALLEN LOWE, Lowe Graham Jones PLLC,
Seattle, WA, argued for plaintiff-appellant.
JONATHAN GIROUX, Greenberg Traurig P.A., Chicago,
IL, argued for defendant-appellee. Also represented by
JAMES J. LUKAS, JR.; ERIK BOKAR, Orlando, FL.
______________________
Before TARANTO, HUGHES, and CUNNINGHAM, Circuit
Judges.
Case: 23-1791 Document: 27 Page: 1 Filed: 11/21/2024

-- 1 of 7 --

DOGGYPHONE LLC v. TOMOFUN LLC 2
HUGHES, Circuit Judge.
DoggyPhone LLC appeals the U.S. District Court for
the Western District of Washington’s grant of Tomofun
LLC’s non-infringement summary judgment motion.
Because we agree there is no genuine dispute of material
fact, we affirm.
I
DoggyPhone owns U.S. Patent No. 9,723,813, which
provides a system for facilitating remote human-pet
communication, referred to as an “Internet Canine
Communication System.” ’813 patent, Abstract. Some
embodiments of the system contemplated in the patent
involve a device “that is configured to deliver treats to a dog
and to transmit audio/visual communication between the
dog and a remote client device operated by a human user.”
Id. at 2:19–21.
The relevant portion of claim 7, the only asserted claim
of the ’813 patent, recites:
7. A system for communicating with a pet . . .
wherein the system: . . .
transmits to the remote client device at least one of
live audio or video of the pet, wherein the system
begins transmission to the remote client device of at
least one of the audio or video of the pet in response
to input from the pet.
Id. at 12:15–39.
A
Tomofun LLC manufactures and sells the “Furbo,”
which is an interactive pet camera device. The Furbo
“‘enables a user to remotely see their pet, talk to their pet,
and toss treats to their pet,’ via an app on the user’s mobile
device.” DoggyPhone LLC v. Tomofun, LLC, 658 F. Supp.
3d 976, 980 (W.D. Wash. 2023) (quoting Tomofun’s Motion
Case: 23-1791 Document: 27 Page: 2 Filed: 11/21/2024

-- 2 of 7 --

DOGGYPHONE LLC v. TOMOFUN LLC 3
for Summary Judgment, Case No. 2:19-cv-01901-BJR, ECF
No. 54 at 5); J.A. 21. The Furbo operates in two modes: a
standard mode and a cloud recording mode (also called Dog
Nanny mode). In standard mode, if the Furbo detects pet
activity (like barking), it sends a text notification to the
Furbo user’s phone. The user can select the notification and
see the current video and audio feed of the pet. In the cloud
recording mode, if the Furbo detects pet activity, it
transmits live video to the cloud for recording and sends a
text notification to the user. The user can select the
notification and see the recorded video.
B
In 2019, DoggyPhone sued Tomofun in the Western
District of Washington, alleging that Tomofun’s Furbo
device infringes claim 7 of the ’813 patent. DoggyPhone
LLC v. Tomofun, LLC, No. 19-cv-1901, 2019 WL 6307652
(W.D. Wash. Nov. 22, 2019), ECF No. 1. After claim
construction, both parties filed cross-motions for summary
judgment. The district court granted Tomofun’s motion for
summary judgment and held that the Furbo does not
infringe the ’813 patent as a matter of law. J.A. 38.
DoggyPhone appeals the district court’s grant of
summary judgment. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(1).
II
We review a district court’s summary judgment
decision under the law of the applicable regional circuit.
Lexion Med., LLC v. Northgate Techs., Inc., 641 F.3d 1352,
1358 (Fed. Cir. 2011). The Ninth Circuit reviews the grant
of a motion for summary judgment de novo. Humane Soc'y
of the U.S. v. Locke, 626 F.3d 1040, 1047 (9th Cir. 2010).
Summary judgment is appropriate when “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law” after drawing all
justifiable inferences in the nonmovant’s favor. Fed. R. Civ.
Case: 23-1791 Document: 27 Page: 3 Filed: 11/21/2024

-- 3 of 7 --

DOGGYPHONE LLC v. TOMOFUN LLC 4
P. 56(a); Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 255
(1986).
III
An infringement analysis has two steps: first, the claim
is construed to “determine its scope and meaning,” and
second, the properly construed claim “must be compared to
the accused device or process.” Carroll Touch, Inc. v.
Electro Mech. Sys., Inc., 15 F.3d 1573, 1576 (Fed. Cir.
1993). “A claim covers an accused device if the device
embodies every limitation of the claim[.]” Id. A grant of
summary judgment of noninfringement will be upheld
when there is no literal infringement or infringement
under the doctrine of equivalents.1 Townsend Eng’g Co. v.
HiTec Co., 829 F.2d 1086, 1089 (Fed. Cir. 1987).
Although the district court predicated its conclusion of
noninfringment on three independent bases, we need only
address one: the Furbo does not meet the limitation “begins
transmission to the remote client device of live audio or
video of the pet in response to input from the pet.” At the
claim construction stage, DoggyPhone argued for a plain
and ordinary meaning construction of the claim language
“transmits to the remote client device at least one of live
audio or video of the pet, wherein the system begins
transmission to the remote client device of at least one of
the audio or video of the pet in response to input from the
pet.” J.A. 157. The district court agreed with DoggyPhone
1 Though neither party addressed whether the
Furbo device infringed under the doctrine of equivalents in
their motions for summary judgment, the district court
concluded that the accused device also did not infringe
under the doctrine of equivalents. DoggyPhone does not
make any arguments on appeal that the Furbo infringes
under the doctrine of equivalents. Accordingly, we only
address contentions relating to literal infringement.
Case: 23-1791 Document: 27 Page: 4 Filed: 11/21/2024

-- 4 of 7 --

DOGGYPHONE LLC v. TOMOFUN LLC 5
and held the claim language should be construed according
to its plain and ordinary meaning. J.A. 15–18.
In its motion for summary judgment, DoggyPhone
argued that the Furbo met the “begins transmission to the
remote client device of live audio or video of the pet in
response to input from the pet” limitation through the
operation of both the standard mode and the Dog Nanny
mode. Regarding standard mode operation, the district
court concluded that the Furbo did not infringe because the
pet’s activity triggers a notification to the user’s mobile
device, and transmission of live audio or video does not
begin until the user clicks on the notification; if the user
does not respond to the notification, transmission never
occurs. J.A. 36–37. With respect to Dog Nanny mode, the
district court credited unrefuted evidence that live video is
transmitted to the cloud, but that recorded video from the
cloud is what is transmitted to the user’s device. The
district court then concluded that “no reasonable jury could
find that the Furbo . . . infringes this limitation of the ’813
patent, and that Tomofun is therefore entitled to summary
judgment of non-infringement.” J.A. 38.
On appeal, DoggyPhone argues that the Furbo meets
the “begins transmission . . . in response to input from the
pet” limitation because the pet’s activity sets off a causal
chain that results in transmission of live audio or video;
that is, the pet’s input is a but-for cause of the
transmission. DoggyPhone also argues that the plain and
ordinary meaning of the limitation does not require direct
causal connection without intervening operations or user
inputs.
We agree with the district court that DoggyPhone’s
argument falls short of creating a genuine dispute of
material fact. The claim language requires the system to
begin transmission in response to input from a pet, not
begin a process of transmission. It is undisputed that, when
the Furbo operates, the input from the pet transmits a
Case: 23-1791 Document: 27 Page: 5 Filed: 11/21/2024

-- 5 of 7 --

DOGGYPHONE LLC v. TOMOFUN LLC 6
notification to the user’s phone, but an intervening step by
the user is required to instigate the actual transmission of
live video or audio. Transmission of live video or audio does
not occur until the user clicks on the notification—if the
user never selects the notification, then transmission of
live video or audio never occurs. The notification itself does
not contain live audio or video. Tomofun’s expert, in
unrebutted testimony, opined that transmission is
responsive to the user clicking on the notification. J.A.
1375. Thus, when the Furbo system operates, transmission
begins not in response to the pet’s activity, but in response
to the user’s decision to click on the notification—making
transmission responsive to the user’s input, not the pet’s.
J.A. 36.
Further, DoggyPhone’s proposed meaning requires us
to understand “begins . . . in response to” as merely
identifying steps on a causal chain. Appellant’s Br. 33
(“[T]here is no requirement that the causation need to be
direct and without any intervening operations or user
inputs.”). But it is not sufficient that the pet’s activity sets
off a causal chain that may or may not result in
transmission of live video or audio. The claim language
requires that the pet’s activity begins transmission, not
that the pet’s activity simply causes transmission. We
agree with the district court that “[l]ogically speaking, if
transmission begins when (and if) the user clicks on the
notification, it has up to that point not yet begun, despite
the fact that input from the pet has already been received.”
J.A. 37. Here, under the plain and ordinary meaning of the
claim language, there is no genuine dispute of material fact
whether Tomofun’s Furbo infringes, because no live audio
or video begins transmission in response to input from a
pet—transmission begins in response to an intervening
user action. Accordingly, we affirm the district court’s grant
of summary judgment to Tomofun on this ground.
Case: 23-1791 Document: 27 Page: 6 Filed: 11/21/2024

-- 6 of 7 --

DOGGYPHONE LLC v. TOMOFUN LLC 7
IV
The district court granted summary judgment on three
independent bases, so we need only affirm one to uphold
the grant of summary judgment. See Acceleration Bay LLC
v. 2K Sports, Inc., 15 F.4th 1069, 1076 (Fed. Cir. 2021)
(discussing that when there are independent grounds for
noninfringement, anything less than reversal of all
grounds leaves the district court’s grant of summary
judgment of non-infringement intact). Therefore, we need
not reach the other two independent bases for the district
court’s grant of summary judgment in Tomofun’s favor,
namely (1) that the Furbo does not include structure that
“dispenses via the food dispenser at least one treat from the
treat bin” that is identical or equivalent to structure
disclosed in the asserted claim, and (2) that the Furbo does
not include a “delivery module” that, “in response to a
received treat delivery command,” “receives input from the
pet.” J.A. 26, 29.
Because we agree with the district court that the Furbo
does not begin transmission of live audio or video in
response to input from a pet, we affirm the district court’s
grant of summary judgment of noninfringement to
Tomofun.
AFFIRMED
Case: 23-1791 Document: 27 Page: 7 Filed: 11/21/2024

-- 7 of 7 --