But Judge Moore pointed out that another expert testified that the screens used to reconfigure the setting aren’t available to Weber customers. And Weber’s attorney, William Milliken of Sterne Kessler Goldstein & Fox PLLC, said Vorst himself said that the settings needed to reconfigure the machine to advance are only available to Weber technicians.
“In order to have infringement for an apparatus capability, you’ve got to show reasonable capability, which means it would infringe without some kind of unforeseen modification in the ordinary course. And Weber’s customers don’t have access to this,” Milliken said.
At a minimum, Weber is asking the court to vacate U.S. District Judge Stephen R. Bough’s judgment of willful infringement. Judge Bough wrote that Weber “intentionally copied plaintiff’s patented ideas.”
But Martin told the panel there was “overwhelming” evidence to support Judge Bough’s willfulness finding, including interrogatory responses from Weber executives that — despite changing multiple times — indicated that the company was aware of Provisur’s patents.
