IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

APPLIANCE COMPUTING III, INC. 

d/b/a SUREFIELD,

Plaintiff, 

v. 

REDFIN CORPORATION,

Defendant.

§

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

CIVIL ACTION NO. 6:20-cv-00376-ADA

PLAINTIFF’S REPLY IN SUPPORT OF RENEWED MOTION FOR JUDGMENT AS A 

MATTER OF LAW PURSUANT TO RULE 50(b) 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 1 of 28
i 

TABLE OF CONTENTS

I. INVALIDITY ..................................................................................................................... 1

A. Redfin Failed to Prove a Motivation to Combine/Modify the Prior Art. ................ 1

1. Surefield Did Not Waive its Motivation Arguments. ................................. 1

2. Redfin’s Expert Applied an Incorrect Obviousness Standard and Ignored 

Motivation to Combine/Modify. ................................................................. 1

3. Redfin Had to Prove Motivation Because Its Evidence Was Insufficient to 

Support the Jury’s Verdict on Its Other Theories of Invalidity. ................. 2

4. Redfin Failed to Provide Any Evidence that GSV Could be Modified to 

Achieve the “Generate and Render” Limitation. ........................................ 5

5. Trial Evidence “As a Whole” Does Not Provide Sufficient Motivation to 

Combine or Modify Any Prior Art Reference. ........................................... 5

B. Redfin Failed to Prove “Defining Spatial Boundaries...Using the Image Data” 

Was Disclosed by the Prior Art. ............................................................................. 7

C. Redfin Failed to Present Any Sufficient Theory of Invalidity Based on the 

Matterport 2013 Prior Art System. ......................................................................... 8

D. Redfin Failed to Present Substantial Evidence That GSV, Either Alone or in 

Combination with Redfin.com 2013, Invalidated the Asserted Claims. ................. 9

1. Surefield Did Not Waive Arguments Related to GSV. .............................. 9

2. Redfin Failed to Show That GSV/Redfin.com Disclosed Synthesized 

Views/Viewpoints. ...................................................................................... 9

3. Redfin Failed to Show That GSV/Redfin.com Disclosed Scheduling a 

Tour. .......................................................................................................... 10

4. Redfin Failed to Show That GSV/Redfin.com Disclosed Determining 

Camera Geometry Using the Plurality of Images. .................................... 10

5. Redfin Failed to Show That GSV Disclosed a Spatial Boundary Defining 

or Corresponding to a Parcel Outline........................................................ 11

E. Redfin Failed to Address Surefield’s Evidence of Secondary Considerations 

Supporting a Finding of Nonobviousness. ............................................................ 11

F. Redfin Failed to Consistently Interpret the Claim Language for Both Infringement 

and Invalidity. ....................................................................................................... 13

II. NONINFRINGEMENT .................................................................................................... 13

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 2 of 28
ii

A. No Reasonable Jury Could Find Non-Infringement with Plaintiff’s Evidence of 

Infringement. ......................................................................................................... 13

B. Redfin’s Noninfringement Positions Are Irrelevant to the Asserted Claims and No 

Reasonable Juror Could Have Found Noninfringement. ...................................... 18

1. Redfin Uses the Accused Virtual Models and Makes Its Website, so JMOL 

of Infringement is Required. ..................................................................... 18

2. All Substantial Evidence Demonstrates that Spatial Boundaries Define or 

Correspond to a Parcel Outline. ................................................................ 19

3. The Accused Models Are Generated From a Selected Viewpoint. .......... 20

III. CONCLUSION ................................................................................................................. 20

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 3 of 28
iii

 TABLE OF AUTHORITIES

Cases

Alexsam, Inc. v. IDT Corp., 

715 F.3d 1336 (Fed. Cir. 2013).................................................................................. passim

Allergan, Inc. v. Barr Labs., Inc., 

501 F. App'x 965 (Fed. Cir. 2013) ...................................................................................... 2 

Arendi S.A.R.L. v. Apple Inc., 

832 F.3d 1355 (Fed. Cir. 2016)....................................................................................... 4, 7 

Blackboard, Inc. v. Desire2Learn, Inc., 

574 F.3d 1371 (Fed. Cir. 2009)........................................................................................... 1 

Centillion Data Sys., LLC v. Qwest Commc'ns Int'l, Inc., 

631 F.3d 1279 (Fed. Cir. 2011)......................................................................................... 18 

Centrak, Inc. v. Sonitor Techs., Inc., 

915 F.3d 1360 (Fed. Cir. 2019)......................................................................................... 19 

HVLPO2 v. Oxygen Frog, 

949 F.3d 685 (Fed. Cir. 2020).................................................................................... passim

Illinois Tool Works, Inc. v. Rust-Oleum Corp., 

955 F.3d 512 (5th Cir. 2020) .............................................................................................. 2 

Imperium IP Holdings (Cayman), Ltd. v. Samsung Elecs. Co., 

757 F. App'x 974 (Fed. Cir. 2019) .................................................................................... 18 

InTouch Techs., Inc. v. VGO Commc'ns Inc., 

751 F.3d 1327 (Fed. Cir. 2014)............................................................................. 2, 6, 7, 11 

Koito Mfg. v. Turn-Key Tech., 

381 F.3d 1142 (Fed. Cir. 2004)............................................................................... 3, 5, 7, 8 

KSR Int'l Co. v. Teleflex Inc., 

550 U.S. 398 (2007) ............................................................................................................ 6 

Moba, B.V. v. Diamond Automation, Inc., 

325 F.3d 1306 (Fed. Cir. 2003)......................................................................................... 13 

Morante v. Am. General Fin. Ctr., 

157 F.3d 1006 (5th Cir. 1988) ........................................................................................ 1, 8 

Navigant Consulting, Inc. v. Wilkinson, 

508 F.3d 277 (5th Cir. 2007) .............................................................................................. 1 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 4 of 28
iv

Schumer v. Lab. Computer Sys., Inc., 

308 F.3d 1304 (Fed. Cir. 2002)........................................................................................... 3 

Verizon Servs. Corp. v. Cox Fibernet Va., Inc., 

602 F.3d 1325 (Fed. Cir. 2010)......................................................................................... 12 

VirnetX, Inc. v. Cisco Sys., Inc., 

767 F.3d 1308 (Fed. Cir. 2014)....................................................................................... 7, 9 

W. Union Co. v. MoneyGram Payment Sys., Inc., 

626 F.3d 1361 (Fed. Cir. 2010)............................................................................. 1, 8, 9, 13 

WMS Gaming Inc. v. Int’l Game Tech, 

184 F.3d 1339 (Fed. Cir. 1999)......................................................................................... 12 

Wyers v. Master Lock Co., 

616 F.3d 1231 (Fed. Cir. 2010)......................................................................................... 13 

Rules

Fed. R. Civ. P. 50(b) ..................................................................................................................... 20 

Fed. R. Civ. P. 59 .......................................................................................................................... 20 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 5 of 28
v 

TABLE OF ABBREVIATIONS AND CITATIONS

Parties

Surefield Plaintiff Appliance Computer III, Inc. d/b/a 

Surefield

Redfin Defendant Redfin Corp.

Defined Terms

Surefield Patents or Patents-in-Suit U.S. Patent No. 9,836,885 (the “’885 

Patent”); U.S. Patent No. 10,102,673 (the 

“ʼ673 Patent”); U.S. Patent No. 10,510,111 

(the “ʼ111 Patent”); and U.S. Patent No. 

10,592,973 (the “’973 Patent”). 

Asserted Claims Claims 1, 3, and 9 of the ’885 Patent; claims 

1, 2, and 10 of the ’673 Patent; claims 18 and 

22 of the ’111 Patent; and claims 4 and 17 of 

the ’973 Patent. 

GSV Google Street View

Matterport 2013 Matterport 2013 System

JMOL Judgement as a Matter of Law

POSITA Person of ordinary skill in the art

Tr. Trial Transcripts, Dkt. 239-244

Unless otherwise noted, all emphasis is 

added. 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 6 of 28
1 

I. INVALIDITY

A. Redfin Failed to Prove a Motivation to Combine/Modify the Prior Art. 

1. Surefield Did Not Waive its Motivation Arguments. 

Although Surefield explicitly stated in its pre-verdict motion that “Redfin Cannot Show 

Clear and Convincing Evidence of Motivation to Combine or to Modify,” Dkt. 227 at 8, Redfin 

claims Surefield waived the argument. Dkt. 261 at 2. Redfin’s claim has no merit. Rule 50(a) 

requires pre-verdict JMOL motions “specify the judgment sought and the law and the facts that 

entitle the movant to the judgment[,]” and a party may renew its JMOL after the jury verdict under 

Rule 50(b). Fed. R. Civ. P. 50. The Fifth Circuit liberally construes the rule and excuses any 

“technical noncompliance” provided that the purposes of the rule—informing the court of the 

party’s legal position and placing the opposing party on notice of the moving party’s position 

regarding the insufficiency of the evidence—are satisfied. W. Union Co. v. MoneyGram Payment 

Sys., Inc., 626 F.3d 1361, 1367–68 (Fed. Cir. 2010).1

 Here, Surefield specifically raised the lack 

of a motivation to combine/modify the asserted prior art in its pre-verdict motion, Dkt. 227 at 8, 

and there is no dispute that the motion explicitly encompassed as a ground for JMOL that the 

Asserted Patents were not invalid for obviousness. See, e.g., Dkt. 227 at 8–11; Tr. 1658:8–1659:4. 

Redfin argues that Surefield’s post-verdict JMOL arguments must exactly match those in 

its Rule 50(a) JMOL. That is not the law. Indeed, Redfin’s only cited case held that a party cannot 

move for JMOL after the verdict on a ground not included in the Rule 50(a) JMOL, which is unlike 

the situation here. See Morante v. Am. General Fin. Ctr., 157 F.3d 1006, 1010 (5th Cir. 1988). 

2. Redfin’s Expert Applied an Incorrect Obviousness Standard and 

Ignored Motivation to Combine/Modify. 

Redfin’s expert, Dr. Navratil, explicitly agreed that the standard he applied in his analysis 

1 See also Blackboard, Inc. v. Desire2Learn, Inc., 574 F.3d 1371, 1379 (Fed. Cir. 2009) (finding 

no waiver of obviousness arguments); Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277, 288 

(5th Cir. 2007). 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 7 of 28
2 

allowed obviousness to be proved simply by showing that every limitation of the claim is in the 

prior art. Tr. 1450:8–22.2 The jury was then instructed by the Court that this is insufficient to show 

obviousness. Tr. 1692:17–20. Redfin’s cited cases about the general scope of proper expert 

testimony are irrelevant to the issue here, an expert’s application of a standard. See Dkt. 261 at 6. 

As became apparent at trial, Dr. Navratil applied the wrong standard regarding obviousness. See 

Dkt. 248 at 4–5; Tr. 1450:8–22. These errors fundamentally undermined Dr. Navratil’s analysis, 

and thus his testimony cannot support the jury’s invalidity verdict. InTouch Techs., Inc. v. VGO 

Commc'ns Inc., 751 F.3d 1327, 1348–1349 (Fed. Cir. 2014) (reversing district court's judgment of 

invalidity because it was based on expert testimony applying an incorrect legal standard).

3. Redfin Had to Prove Motivation Because Its Evidence Was Insufficient 

to Support the Jury’s Verdict on Its Other Theories of Invalidity. 

Redfin provides various arguments attempting to avoid the requirement to prove a 

motivation to combine/modify. See Dkt. 261 at 3–7. Redfin’s arguments ignore two important 

standards from the Federal Circuit. First, a jury’s verdict of invalidity must be supported by 

substantial evidence. See Illinois Tool Works, Inc. v. Rust-Oleum Corp., 955 F.3d 512, 514 (5th 

Cir. 2020). Second, expert testimony was required to support the jury’s verdict of invalidity. See 

Alexsam, Inc. v. IDT Corp., 715 F.3d 1336, 1347–48 (Fed. Cir. 2013).

3 Here, neither expert 

testimony nor substantial evidence supported the jury’s verdict. Neither Dr. Furukawa, Mr. 

2 Redfin implies that Surefield should have questioned Dr. Navratil more explicitly about 

motivation to combine. Dkt. 261 at 6. However, Dr. Navratil left no room for a motivation to 

combine requirement in the standard he applied, that obviousness is proved sufficiently by 

showing each limitation existing in the prior art. 

3 Although expert testimony is not required for all determinations of alleged obviousness, the cases 

where an obviousness theory can be supported without expert testimony are generally limited to: 

(1) where the technology is simple, (2) the references are easily understandable, and (3) the factual 

inquiries underlying” obviousness are not in dispute. Allergan, Inc. v. Barr Labs., Inc., 501 F. 

App'x 965, 972 (Fed. Cir. 2013). This case involves 3D modeling technology, which could hardly 

be called “simple,” and thus expert testimony was required. 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 8 of 28
3 

Wiener, nor Mr. Gausebeck were offered or qualified as expert witnesses. Redfin’s repeated 

citations to those witness’s testimony and documentary evidence are irrelevant to invalidity 

without accompanying expert testimony.4 Surefield has demonstrated that each and every theory 

Redfin presented was insufficient such that, even taken as a whole, there was no sufficient basis 

to enable a reasonable jury to conclude, by clear and convincing evidence, that the Asserted Claims 

were invalid as anticipated or obvious. Redfin cannot escape its failure to prove motivation to 

combine/modify under the guise of another theory of invalidity. 

a. Redfin Failed to Present Substantial Evidence That GSV 

Anticipates Any of the Asserted Claims. 

Redfin incorrectly claims that substantial evidence supports the jury’s verdict that GSV 

anticipated the Asserted Claims. Dkt. 261 at 3. To qualify as substantial evidence, expert testimony 

concerning anticipation must identify each element, state the witnesses’ interpretation of the 

element, and explain in detail how each element is disclosed in the prior art. See Schumer v. Lab. 

Computer Sys., Inc., 308 F.3d 1304, 1315–16 (Fed.Cir.2002). To the contrary, Dr. Navratil 

testified that several limitations were not present in GSV, instead claiming (without evidence) that 

such limitations would have been obvious to Google engineers. Dkt. 248 at 4 n.1.5 Even assuming 

expert testimony was unnecessary (it was), Redfin did not identify any other evidence, including 

Furukawa testimony, showing that the limitations Dr. Navratil failed to identify existed in GSV. 

4 See Alexsam, 715 F.3d at 1347–48; HVLPO2 v. Oxygen Frog, 949 F.3d 685, 689 (Fed. Cir. 2020); 

Koito Mfg. v. Turn-Key Tech., 381 F.3d 1142, 1151–52 & n.4 (Fed. Cir. 2004) (overturning district 

court denial of JMOL of no invalidity because prior art reference entered into evidence was not 

sufficiently discussed by expert). 5 These limitations appear in claims 1, 3, and 9 of the ’885 Patent, claims 18 and 22 of the ’111 

Patent, and claims 4 and 17 of the ’973 Patent and these are the claims not supported by substantial 

evidence of a motivation to combine or modify GSV. See Dkt. 248 at 6. However, Redfin has 

asserted obviousness of all of the Asserted Claims against Matterport 2013 as well. See id. at 3. 

GSV does not anticipate the remaining Asserted Claims (claims 1, 2, and 10 of the ’673 Patent) 

for the reasons discussed in Surefield’s JMOL motion. See id. at 6–8, 11–13. 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 9 of 28
4 

Redfin, therefore, failed to present substantial evidence that GSV anticipated the Asserted Claims.6

b. Redfin Failed to Present Substantial Evidence That GSV 

Disclosed the Required Spatial Boundary. 

Attempting to sidestep the failures of Dr. Navratil, Redfin argues GSV disclosed a spatial 

boundary defining or corresponding to a parcel outline by mischaracterizing Dr. Melendez’s

infringement testimony. Dkt. 261 at 4–5. Redfin’s citations to Dr. Melendez’s testimony ignore 

the relevant discussion of these limitations showing that the accused Redfin 3D Walkthrough 

listings contain GPS-located spatial boundaries that define rooms and floors with GPS data related 

to the parcel outline of the property. See Tr. 589:2–590:13, 590:24–592:22. Redfin also falsely 

claims that “Dr. Melendez testified that simply displaying ‘a green rectangle’ on a map around the 

property line is evidence of the parcel outline limitation.” Dkt. 261 at 5. Dr. Melendez’s testimony 

actually states the opposite: merely displaying the parcel outline is not required by the claim 

language. Tr. 589:2–590:13. Dr. Melendez stated that the green rectangle, along with Redfin’s

source code and testimony of Dr. Hu, showed that “Redfin source code knows the geographical 

location of [the] spatial boundaries.” Id. 

Further, Dr. Navratil’s cited testimony does not disclose any position or location data 

related to spatial boundaries in GSV. Indeed, Dr. Navratil stated (without evidence) it “would have 

been a simple matter for Google to just add another spatial boundary ... around the White House 

6 Redfin in a footnote indicates that one of the missing limitations identified by Surefield was not 

actually missing from GSV. Dkt. 261 at 4 n.1. Surefield disagrees that that limitation was present 

in GSV, but it is notable that Redfin identified testimony regarding this limitation but not for any 

others. Redfin also claims that the combination of GSV with the Museum of Modern Art

(“MoMA”) website required no motivation to combine because the combination was explicitly 

disclosed. Id. First, no authority supports the proposition that any prior art combination is sufficient 

on its own, because such “common sense ... cannot be used as a wholesale substitute for reasoned 

analysis and evidentiary support.” Arendi S.A.R.L. v. Apple Inc., 832 F.3d 1355, 1362 (Fed. Cir. 

2016). Second, buying a ticket is not the same as scheduling a tour. Dkt. 248 at 10–11. Third, the 

MoMA website linked to the Google Art Project, but a person could not operate the Google Art 

Project tour while remaining on the Museum of Modern Art website. DX-226 at 20–28. 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 10 of 28
5 

parcel outline,” noting that GSV did not disclose the claimed spatial boundaries. Tr. 1369:24–

1370:10. 

Redfin also cannot rely on non-expert Mr. Wiener’s testimony for what the prior art 

discloses or as substantial evidence of invalidity, nor can Redfin’s documentary evidence speak 

for itself. See supra n.4. Also, Dr. Navratil’s cited testimony relying on Mr. Wiener is unavailing, 

because Dr. Navratil simply stated that a parcel boundary map was on Redfin’s website as early 

as 2008 but did not offer any opinion on obviousness. Tr. 1374:22–1375:3. None of this evidence 

is sufficient to prove by clear and convincing evidence that GSV discloses spatial boundaries that 

define or correspond to a parcel outline or that a POSITA would have been motivated to modify 

GSV to achieve these limitations. 

4. Redfin Failed to Provide Any Evidence that GSV Could be Modified to 

Achieve the “Generate and Render” Limitation. 

Dr. Navratil, discussing GSV, claimed that it would have been “obvious” to modify GSV 

to generate and render the virtual model at the same time as allegedly required by ’973 Claim 1. 

Tr. 1405:14–1406:4. Surefield identified this limitation as lacking sufficient motivation to modify. 

See Dkt. 248 at 4 n.1. Redfin in its Opposition does not cite any evidence allegedly disclosing this 

limitation or showing a motivation to modify any prior art to achieve this limitation, nor could 

Redfin as there is no such evidence in the record. Indeed, Redfin does not even address this 

limitation. 

5. Trial Evidence “As a Whole” Does Not Provide Sufficient Motivation 

to Combine or Modify Any Prior Art Reference.

As Surefield demonstrated in its JMOL motion, the rest of Dr. Navratil’s testimony does 

not indicate that he applied any standard other than the legally incorrect one he explicitly stated he 

applied. Redfin’s Opposition only mentions one conclusory and insufficient “motivation to 

combine,” despite Surefield identifying several limitations which Dr. Navratil failed to identify in 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 11 of 28
6 

GSV alone. Compare Dkt. 261 at 5–6 with Dkt. 248 at 4 n.1. While Redfin argues that the 

motivation to combine inquiry must be “expansive and flexible,” it must also be “made explicit” 

under the Supreme Court’s standard. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 401 (2007).

Additionally, a (1) motivation to combine/modify must be supported by expert testimony, (2) the 

testimony must demonstrate why a POSITA would have combined or modified the prior art to 

achieve the missing limitation, and (3) why a POSITA would have a reasonable expectation of 

success. See InTouch, 751 F.3d at 1347–1348; Alexsam, 715 F.3d at 1347–48. The only alleged 

motivation to modify the prior art from Dr. Navratil identified by Redfin was that adding a spatial 

boundary defining the parcel outline of the White House to GSV “would have allowed you to walk 

in the Rose Garden or something like that,” and that Google had the “outdoor imagery” to make 

that happen. Tr. 1370:4–10. However, this conclusory testimony was contradicted by the prior art. 

Dr. Navratil pointed to Dr. Furukawa’s work on the Google Art Project, which involved the use of 

a specialized trolley to show spatial boundaries in GSV. See Dkt. 248 at 6–7. Dr. Furukawa’s paper 

indicates that the alleged algorithms behind Google Art Project “assume that the space outside 

buildings is filled-in.” DX-259 at 4. Dr. Navratil does not reckon with how a POSITA would have 

added a spatial boundary defining a parcel outline to this system, rendering this alleged motivation 

to modify legally insufficient. Redfin did not identify any motivation to combine or modify from 

Dr. Navratil regarding any of the other limitations identified by Surefield.

Having presented no legally sufficient evidence showing a motivation to combine or 

modify the prior art, Redfin now attempts to invoke “common sense” as the basis of its theory of 

invalidity for obviousness. Dkt. 261 at 7. The Federal Circuit has “repeatedly warn[ed] that 

references to ‘common sense’—whether to supply a motivation to combine or a missing 

limitation—cannot be used as a wholesale substitute for reasoned analysis and evidentiary 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 12 of 28
7 

support.” Arendi S.A.R.L. v. Apple Inc., 832 F.3d 1355, 1362 (Fed. Cir. 2016). Here, Dr. Navratil 

did not provide an explicit reason why a POSITA would combine or modify any asserted reference. 

Redfin’s citations to non-expert witness testimony and documentary evidence cannot supply the 

required expert testimony regarding motion to combine or modify the prior art. See supra n.4. As 

such, Redfin simply failed to prove obviousness by clear and convincing evidence and thus no 

reasonable jury could have found the claims identified by Surefield obvious. 

Redfin also fails to distinguish the facts here from those in InTouch, arguing that two of 

the limitations identified by Surefield were “explicit in the prior art” while ignoring the rest. Dkt. 

261 at 7. Surefield disagrees that the GSV + MoMA website combination did not require an 

explicit motivation to combine. See supra n.6. For the unmentioned limitations, Dr. Navratil’s 

analysis was “nothing more than impermissible hindsight” as he “failed to provide the glue to 

combine [or modify]” the prior art references. InTouch, 751 F.3d at 1348. 

B. Redfin Failed to Prove “Defining Spatial Boundaries...Using the Image Data” 

Was Disclosed by the Prior Art. 

Redfin fails to identify any testimony that discloses “defining spatial boundaries ... using 

the image data” in the prior art. The conclusory direct testimony from Dr. Navratil contradicting 

his cross-examination testimony cannot, by itself, provide substantial evidence of this limitation 

being disclosed by the prior art. See VirnetX, Inc. v. Cisco Sys., Inc., 767 F.3d 1308, 1333 (Fed. 

Cir. 2014). Although expert testimony is required to support the verdict of invalidity, Dr. Navratil’s 

direct testimony failed to even mention the language at issue. See Alexsam, 715 F.3d at 1347–48. 

See 

Dkt. 248 at 7; Tr. 1461:21–1462:20. 

Even if expert testimony were not required, neither Dr. Furukawa’s testimony nor the 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 13 of 28
8 

evidence presented to the jury disclosed this limitation. See supra n.4. Dr. Furukawa was precluded 

from discussing how the alleged “spatial boundaries” in GSV are defined. Oxygen Frog, 949 F.3d 

at 689. Although Redfin states that “Dr. Furukawa also confirmed that captured images were used 

to depict the rooms and floors in the GSV,” Dkt. 261 at 9, this ignores the claim language. Images 

“depicting” rooms and floors does not disclose defining spatial boundaries using image data. 

Redfin did not present substantial evidence that this limitation was disclosed by the prior art. 

C. Redfin Failed to Present Any Sufficient Theory of Invalidity Based on the 

Matterport 2013 Prior Art System. 

Surefield did not waive its challenge to Redfin’s Matterport 2013 invalidity arguments. As 

above, Surefield unequivocally included in 50(a) JMOL that its patents were not invalid based on 

any prior art at trial. Morante, 157 F.3d 1006 at 1010; Dkt. 227 at 8–11; 1658:8–1659:4. This more 

than satisfies the “liberal” construction of this rule. See W. Union, 626 F.3d at 1367–68. 

Redfin argues there was sufficient evidence to support the jury’s verdict of invalidity based 

on Matterport 2013 prior art. Dkt. 261 at 10. Again, Redfin attempts to avoid the requirement of 

expert testimony. See Alexsam, 715 F.3d at 1347–48. Redfin’s citation to Sundance is inapposite, 

as the Federal Circuit specifically noted the need for expert testimony in technically complex cases 

like this one. See supra n.3. Mr. Gausebeck’s testimony and the documentary evidence cannot 

support the jury’s verdict without expert testimony, which Dr. Navratil wholly failed to provide. 

Nor can Redfin simply point to Dr. Melendez’s infringement testimony and claim invalidity based 

on one statement from Mr. Gausebeck. Dr. Melendez clearly indicated that the Matterport 2013 

system differed significantly from the accused Redfin 3D Walkthroughs and underlying Matterport 

technology by showing imagery from each and noting the differences. Tr. 1637:9–1641:4. Redfin 

failed to present any sufficient theory of invalidity based on the Matterport 2013 system. 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 14 of 28
9 

D. Redfin Failed to Present Substantial Evidence That GSV, Either Alone or in 

Combination with Redfin.com 2013, Invalidated the Asserted Claims.

1. Surefield Did Not Waive Arguments Related to GSV.

Surefield’s pre-verdict 50(a) motion expressly stated that “Redfin lacks evidence that 

numerous limitations were anticipated or obvious in light of the prior art.” Dkt. 227 at 9; see also 

Tr. 1658:8–1659:4. This satisfied the “liberal” Fifth Circuit standard by providing notice of 

Surefield’s challenge to Redfin’s anticipation and obviousness grounds. See W. Union, 626 F.3d 

at 1367–68. 

2. Redfin Failed to Show That GSV/Redfin.com Disclosed Synthesized 

Views/Viewpoints. 

Redfin claims that the testimony of Dr. Navratil is substantial evidence that GSV 

combination discloses the “synthesized views” limitation, but the cited testimony is conclusory 

and insufficient because it merely repeats the claim language and states it is in the prior art. Dkt. 

261 at 13; VirnetX, 767 F.3d at 1333. Redfin’s Opposition does not address how GSV provides an 

“image of a space from a position other than a capture location” or explain how the image data is 

“combined and processed.” Dkt. 261 at 13; Tr. 1363:1–1364:23.

Moreover, Redfin’s Opposition improperly relies on the testimony of a non-expert, Dr. 

Furukawa, in an attempt to provide evidence of invalidity and the content of prior art. Dkt. 261 at 

13. Dr. Furukawa, however, was expressly precluded from providing testimony regarding 

technical issues relating to the content of the prior art—including how a prior art system operates. 

Tr. 132:1-140:20; Oxygen Frog, 949 F.3d at 689. Dr. Furukawa’s non-expert testimony cited in 

Redfin’s Opposition related to the aerial panoramas of GSV, along with the conclusion of Dr. 

Navratil regarding the creation of a composite of panoramas from multiple capture locations being 

a synthetic view based on Dr. Furukawa’s testimony, is insufficient to support the verdict of 

invalidity. Alexsam, 715 F.3d at 1347–48. 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 15 of 28
10 

3. Redfin Failed to Show That GSV/Redfin.com Disclosed Scheduling a 

Tour. 

Redfin mistakenly contends that it presented evidence (DX-226 at 20–28) that “explicitly 

shows the combination of GSV with the Museum of Modern Art website” to disclose the 

“scheduling a tour” limitation. Dkt. 261 at 14. However, Redfin’s presented evidence merely 

showed the MoMA website. See supra n.6. Redfin’s citations to Navratil’s testimony only 

establish that a user of the MoMA website could buy tickets to visit the museum but reveals

nothing about scheduling a tour. See Dkt. 261 at 14; Tr. 1377:19–1378:12; 1411:7–1413:8. 

Redfin’s additional citation to the testimony of a non-expert, Mr. Wiener, to show an alleged 

motivation to combine GSV and Redfin.com and the content of the prior art is insufficient for the 

same reasons discussed with respect to Dr. Furukawa’s testimony. Alexsam, 715 F.3d at 1347–48. 

4. Redfin Failed to Show That GSV/Redfin.com Disclosed Determining 

Camera Geometry Using the Plurality of Images. 

Here again, Redfin erroneously relies on testimony of non-expert, Dr. Furukawa, to support 

its anticipation or obviousness arguments and the content of the prior art, including how GSV 

allegedly uses pose estimation. Dkt. 261 at 15. Dr. Navratil’s use of Dr. Furukawa’s testimony on 

pose estimation to establish “determining camera geometry” is improper as Dr. Furukawa was not 

disclosed as a qualified expert. Oxygen Frog, 949 F.3d at 689. Dr. Furukawa was precluded from 

providing expert testimony on scope and content of the prior art, and Dr. Navratil did not testify 

to the scope of the art independently, meaning Redfin lacks the necessary expert testimony to 

support a verdict of invalidity. Alexsam, 715 F.3d at 1347–48. 

Redfin further admits that Dr. Navratil did not address the Court’s claim construction for 

“first pass feature detection,” arguing instead that his testimony was “consistent” with the Court’s 

construction. Dkt. 261 at 15. However, his testimony was not consistent with the construction as 

he failed to explain how GSV performed “an initial detection of geometric features in images” as 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 16 of 28
11 

the Court’s construction of “first pass feature detection” required. Id.; Tr. 1386:17–1387:6. Dr. 

Furukawa’s additional cited testimony related to “pose estimation” and “first pass feature 

detection” is also unavailing as he was not disclosed as an expert and could not opine on the content 

of the prior art. Tr. 132:1-140:20; Alexsam, 715 F.3d at 1347–48; Oxygen Frog, 949 F.3d at 689. 

5. Redfin Failed to Show That GSV Disclosed a Spatial Boundary 

Defining or Corresponding to a Parcel Outline.

Dr. Navratil failed to present any evidence of these “parcel outline” limitations in GSV. 

Dr. Navratil provided only a cursory analysis for these limitations that did not reference any “parcel 

outline” in GSV and insufficiently claimed it would have been “obvious” for Google engineers to 

add to GSV without providing any motivation to modify GSV. See supra I.A.2.b. 

Redfin’s citations to Dr. Navratil’s testimony on “parcel outline” only serve to confirm that 

he neither understood nor applied the Court’s claim construction. Tr. 1421:23–1423:12. After 

reviewing the Court’s claim construction, he characterized the “parcel outline” limitation as 

indefinite and nonsensical and construed it to mean that a room of the house must be part of the 

parcel outline which is contrary to the Court’s claim construction. Id. 

E. Redfin Failed to Address Surefield’s Evidence of Secondary Considerations 

Supporting a Finding of Nonobviousness. 

 Dr. Navratil wholly failed to address at trial any secondary considerations of nonobviousness, leaving his opinion on obviousness based on either Matterport 2013 or GSV 

“incomplete[] and insufficient to establish obviousness by clear and convincing evidence.” 

InTouch, 751 F.3d at 1352 & n.8 (reversing denial of JMOL where expert failed to address 

patentee’s evidence of secondary considerations). 

Redfin only alleged anticipation of GSV with respect to claims of the ’673 Patent. The jury 

charge does not amend the election of prior art and with respect to the ’111, ’885, and ’973 Patents, 

Redfin was required to rebut Surefield’s secondary considerations of non-obviousness case. WMS 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 17 of 28
12 

Gaming Inc. v. Int’l Game Tech, 184 F.3d 1339, 1359 (Fed. Cir. 1999). 

Redfin’s reliance on the jury verdict of non-infringement to negate Surefield’s prima facie 

evidence of a nexus between the secondary considerations of non-obviousness and what was 

claimed puts the cart before the horse. Dkt. 261 at 17. Dr. Melendez provided ample evidence that 

Redfin's 3D walkthrough product embodied the claimed features of the patent and were 

coextensive with them. Tr. 1641:6–1642:14. At that point, nexus is presumed, and Redfin is 

obligated to provide evidence in rebuttal. WMS Gaming Inc., 184 F.3d at 1359. Because Redfin

failed to do so, the issue of obviousness should never have been submitted to the jury. 

Redfin also misrepresents Dr. Melendez’s testimony regarding his conclusion of copying. 

Dr. Melendez determined that Redfin’s products were coextensive with the asserted claims based 

upon all of the elements of those claims. Tr. 1641:6–1642:14. Dr. Melendez further supported that 

evidence of copying by showing that Matterport and Redfin were exposed to the features of 

Surefield’s product and copied those features, including “photorealistic panoramas and snap-topano navigation.” Tr. 1641:6-1646:7. Contrary to Redfin’s suggestion, the opinion of copying was 

not based on these features alone. Dkt. 261 at 17. Mr. Eraker, for example, testified that the 

Surefield product released and available to the public, including Redfin and Matterport, embodied 

the ideas claimed in the patents. Tr. 242:12–246:23; Verizon Servs. Corp. v. Cox Fibernet Va., 

Inc., 602 F.3d 1325, 1339–40 (Fed. Cir. 2010). 

Redfin further alleges that the Gausebeck testimony showed that no copying occurred, but 

Mr. Gausebeck did not address the evidence of copying identified by Dr. Melendez. Dkt. 261 at 

17–18. For example, Mr. Gausebeck was not copied on some of the e-mails cited as evidence of 

such copying. PX-17. 

Redfin also asserts that Surefield’s commercial system did not actually practice the asserted 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 18 of 28
13 

claims because they allegedly lack a parcel outline. Dkt. 261 at 18. However, Redfin admits that 

one of the patents does not require a parcel outline. Because Surefield is only required to show that 

the copied product embodied one of the asserted claims, the testimony of Mr. McGarty and Mr. 

Dwivendi related to whether Surefield’s product used a parcel outline is irrelevant. Wyers v. 

Master Lock Co., 616 F.3d 1231, 1246 (Fed. Cir. 2010). 

Surefield also established that the commercial success of the Redfin product was based on 

novel features. Expert testimony showed that the features that drove commercial success were the 

novel features of the patents (e.g., photorealistic viewpoints). Tr. 794:4–10. 

F. Redfin Failed to Consistently Interpret the Claim Language for Both 

Infringement and Invalidity.

Redfin incorrectly argues that Surefield waived its argument that Redfin did not 

consistently interpret the claim language for purposes of both infringement and invalidity. Dkt. 

261 at 19. In its Rule 50(a) motion, Surefield clearly argued that Redfin failed to present evidence 

that prior art satisfied the elements of the asserted claims. Dkt. 227 at 9. This is more than sufficient

to provide Redfin with notice of the lack of evidence. See W. Union, 626 F.3d at 1367–68. 

II. NONINFRINGEMENT

A. No Reasonable Jury Could Find Non-Infringement with Plaintiff’s Evidence

of Infringement. 

Redfin argues that Surefield (a) put the burden of proving non-infringement on Redfin, and 

(b) cannot meet its own burden to prove infringement. Dkt. 261 at 20. To the contrary, Surefield’s

evidence was such that no reasonable juror could conclude that Redfin did not infringe. Moba, 

B.V. v. Diamond Automation, Inc., 325 F.3d 1306, 1312 (Fed. Cir. 2003) (JMOL appropriate where 

“only if upon the record before the jury, reasonable jurors could not have reached that verdict.”); 

Dkt 248 at 15–20. Redfin argued none of its asserted evidentiary grounds of non-infringement 

(Dkt. 261 at 20–24) to the jury, and Redfin’s arguments each fail to support JMOL. 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 19 of 28
14 

Redfin argues that at trial Plaintiff relied on only Dr. Melendez’s testimony for an elementby-element analysis. But this is incorrect; Plaintiff identified that very evidence in the record. 

Redfin further asserts that Surefield and Dr. Melendez failed to identify the accused 

technology. Dkt. 261 at 20. This is also wrong. Dr. Melendez explicitly identified the accused 

technology for all claims as Redfin listings with 3D Walkthrough. Tr. 511:21–512:5, 515:6–

516:13; Dkt. 248 at 19 n.19; see also Tr. 529:23–5:30:22, 599:3–14. 

Redfin also argues that Dr. Melendez failed to identify who allegedly provided, made, used, 

or controlled the accused technology, and who performed specific claim steps. Dkt. 261 at 20. 

This is incorrect. He identified the servers and computers that comprised the accused technology 

and which literally performed each of the steps in his element-by element-analysis. See infra at

14–17. Dr. Melendez also identified the literal provider or operators of these components. Tr. 

505:17–21, 506:21–507:12 (e.g., Matterport servers, Redfin servers, customer computers for 

accessing 3D Walkthroughs at redfin.com), 1672:21–1673:3 (testimony provided evidence on the 

accused technology as described in final jury instructions). Dr. Melendez further pointed to 

specific software, source code, and processors. See infra at 15–17. 

Despite conceding the close technical partnership, Redfin ignores Surefield’s arguments 

about divided direct infringement: that (a) the making, providing, and use of the entire Redfin 3D 

Walkthrough System (and each of its components) is legally attributable to Redfin; and (b) whether 

Matterport or Redfin customer hardware or software literally performed the claimed steps, the 

performance of those steps is legally attributable to Redfin. See Dkt. 248 at 16–19. No reasonable 

jury could reject this evidence because it was uncontested. Indeed, Redfin focused its defense on 

the literal making, providing, using, and performance of steps, while ignoring the facts supporting 

attribution. Tr. 1728:1-1753:12 (not addressing elements of conditioning or joint enterprise.) 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 20 of 28
15 

Redfin also alleges that Dr. Melendez fundamentally failed (a) to identify technology that 

practices all the claim elements, and (b) to identify or discuss all the asserted limitations. Dkt. 261 

at 21. But Surefield presented element-by-element analysis for 10 asserted claims. See Dkt. 248-

1–248-4. For claim 10 of the ’673 Patent, Redfin asserts that Plaintiff failed to identify processors 

and program commands that perform the limitations. This is wrong. Redfin insinuates that a single 

processor must perform all of the claim limitations, but this is not a requirement of the claims. As 

Redfin admits Claim 10 of the ’673 Patent begins with the requirement of “a processor” which 

means “one or more” processors that execute the instructions at issue. Dkt. 261 at 21–22; Tr. 

533:4–19. Dr. Melendez further identified the processors and commands as follows: (1) “receive 

image data” – processors and executable ode on Matterport servers for at least the Redfin account 

“my.matterport.com” (Tr. 532:1–12, 537:7–18, 538:18–539:21, 506:21–508:23); (2) “create ... 

panoramas” – processors on Matterport servers (Tr. 541:25–8 (executing processing steps), 

541:10–16 (discussing Matterport source code), 508:24–509:10 (describing processing at 

Matterport server creating panoramas); (3) “render a virtual model” – processor(s) on the Redfin 

customer’s computer executing program code (Tr. 540:24-541:9, 543:22–544:11, 544:14–545:6); 

(4) “cause a device to display” – processor(s) on the customer’s computer (Tr. 545:9–546:23, 

487:12–6 ( “WebGL is browser code”)); (5) render the 3D scene – processor(s) on Redfin customer 

computers (Tr. 548:14–549:21) (describing rendering of 3D scene as part of virtual model 

described in (3) supra), 555:14–555:20); accord Tr. 1088:25-1090:5 (Gausebeck). 

Dr. Melendez further describes how the 3D scene is rendered by (5a) determining camera 

geometry (Tr. 549:22–551:17); (5b) receiving a selected viewpoint (Tr. 551:18–553:7, 553:8–17); 

(5c) generating point clouds (Tr. 553:20–555:7, 556:17–23); (5d) determining a geometric proxy 

(Tr. 510:19–511:6, 556:17–557:20 (wire mesh of triangles shows geometric proxy), 557:21–558:5, 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 21 of 28
16 

558:12–24); (5e) generating 3D model (Tr. 558:12–24 (geometric proxies used in generating and 

rendering multiple 3D models at Redfin customer computer)). Redfin further argues that Dr. 

Melendez did not identify whether the devices at issue were literally user devices, Redfin devices, 

Matterport devices, or third-party devices. Dkt. 261 at 22. But in discussing “the devices [he]

described in the system,” Dr. Melendez referred to the above-noted Matterport servers, Redfin 

servers, and Redfin customer computers. Tr. 533:5–534:8; See supra at 14. 

Redfin also argues that Dr. Melendez failed to identify program commands running on any 

particular processor for each of the elements above. Dkt. 261 at 22. To the contrary, Dr. Melendez 

identified the program commands as the executable code run on the identified processors and 

corresponding to source code described above or to the described capabilities or operation of

Redfin’s accused technology. See Tr. 534:9–535:4. And Dr. Melendez identified the code relating 

to Redfin’s challenged limitations as follows: “render the virtual model ... by rendering a 3D 

scene” (Tr. 549:3–6 (referring to Tr. 544:24–545:6)); the “receiving a selected viewpoint” (Tr. 

534:23–535:2, 552:20–553:19 (code corresponding to the actions/capabilities described, including 

receiving data about which user selected circle)); and “determining a geometric proxy ...” (Tr. 

534:23–535:2, 545:14–545:1, 557:21–558:5 (rendering code determines which geometric proxy 

to show, e.g. the kitchen), 558:12–14 (referring to “model renderer” code at Tr. 544:15–545:1 in 

relation to both this element and other element relating to a geometric proxy)). At trial, Redfin 

never disputed Dr. Melendez’s testimony about processors or instructions.

Redfin’s arguments about the other claims similarly fail. As to’673 Patent, Claim 1 Dr. 

Melendez specifically addressed each of the challenged elements: (1) “wherein the image data ...” 

(Tr. 567:19–568:25); (2) “wherein rendering the virtual model of the selected space ...” and 

“wherein rendering the 3D scene ...” (Tr. 568:1–568:16); remaining limitations. Tr. 568:1–569:5. 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 22 of 28
17 

Dr. Melendez also explained these claim limitations were met in Redfin’s and its 

customers’ operation of the accused technology described with claim 10 of the ’673 Patent (claim 

1 merely uses different verb tenses). Tr. 568:1–569:5. 

Dr. Melendez testified that Redfin performed the “defining spatial boundaries” limitation,

identified corresponding source code, and testified “the data that is being used [to generate these 

spatial boundaries] is the image data that we have from the spaces.” Tr. 565:5–567:18, 573:25–

574:21 (Redfin’s use). That components of the accused technology were not literally Redfincreated also fails to show divided direct infringement when Redfin presents those elements to its 

users on its website. Dkt. 248 at 16–19. 

Redfin’s allegations (contained in a footnote) regarding other claims are also incorrect for 

the reasons above (accused technology was identified and the making, use, provision, and 

performance of all steps attributable to Redfin, as above) and similar reasons:7 (1) ’885 Patent, Cl. 

1 (Tr. 756:1–22 (“the same processors” as accused for ’673, cl. 10, 1), 517:8–518:22 (the 

provision, making, use of the accused technology is attributable to Redfin), 519:12–25 (Redfin 

customers also use accused system); see also, Dkt. 226 at 4–7; (2) ’111 Patent, Cl. 18 (Tr. 600:11–

14); (3) ’973, Cl. 1 (Tr. 613:13–14 (processors with required commands same as Dr. Melendez 

identified in connection with ‘885 Patent claims)). Redfin never disagreed with Dr. Melendez’s

identification of these processors and instructions. 

Redfin finally asserts that the jury was free to reject Dr. Melendez’s testimony. But Dr. 

Melendez’s testimony above was unrebutted, and, corroborated by Redfin. Dkt. 248-1-4. As 

Redfin offers no reasonable basis for rejection, the jury was not free to reject it. See Imperium IP 

7 Redfin addresses more than 40 pages of testimony in 3 parentheticals with only 3 specific

challenges. Dkt. 261 at 23 n.4. Surefield reserves all rights to respond to any argument made 

regarding these claim elements.

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 23 of 28
18 

Holdings (Cayman), Ltd. v. Samsung Elecs. Co., 757 F. App'x 974, 978–79 (Fed. Cir. 2019). 

B. Redfin’s Noninfringement Positions Are Irrelevant to the Asserted Claims and 

No Reasonable Juror Could Have Found Noninfringement.

At trial, Redfin advanced three noninfringement positions at trial: (1) Redfin doesn’t make 

models; (2) Matterport models don’t have a parcel outline; (3) Matterport has always been a “Full 

3D Reconstruction” company. See Tr. 1284:23–1285:16, 1733:18–23. 

Redfin’s Opposition essentially abandons positions (2) and (3) asserted at trial, implicitly 

acknowledging their irrelevance. Each argument fails for the reasons below.

1. Redfin Uses the Accused Virtual Models and Makes Its Website, so 

JMOL of Infringement is Required. 

Redfin argues that it does not literally “make” the Accused Virtual Models within the 

meaning of 35 U.S.C. § 271(a). Dkt. 261 at 24–28. That is a straw man argument. 

First, Redfin makes no effort to argue that it doesn’t use the constituent virtual models on 

its website, and implicitly concedes this infringing activity. Indeed, the evidence is undisputed that 

Redfin provides access to virtual models on its webpage at www.redfin.com and on its Redfin app. 

Q. You understand, don't you, Dr. Navratil, that in addition to whatever Matterport 

provides [the virtual models], that there's additional information provided on 

redfin.com?

A. Yes, sir. I understand that.

Q. Okay. And that includes the parcel outline information?

A. The parcel outline information provided by Digimap, yes. I think we've been 

clear on that.

Q. Well, and it's provided by Redfin to their users, isn't it?

A. It is shown inside the Google map on the Redfin website, yes. 

See Tr. 1418:12–23. Use is statutorily sufficient under Section 271(a). To use a patented system, 

“a party must put the invention into service, i.e., control the system as a whole and obtain benefit 

from it.” Centillion Data Sys., LLC v. Qwest Commc'ns Int'l, Inc., 631 F.3d 1279, 1281 (Fed. Cir. 

2011). 

Second, Redfin’s argument about literally “making” under 271(a) is legally invalid. Redfin 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 24 of 28
19 

makes its website, is the “final assembler” of it (including the content therein), and is liable as a 

maker. Centrak, Inc. v. Sonitor Techs., Inc., 915 F.3d 1360, 1372 (Fed. Cir. 2019). Redfin 

presented no evidence to the contrary. Redfin directly infringes as a final assembler because 

“Redfin installs all of the software on the user’s computer to allow [a 3D Walkthrough] to occur.” 

Tr. 517:8–15. Redfin “uploads the software that it needs, additional software into the browser, and 

it brings in that custom Redfin virtual tour.” Tr. 517:13–15. Thus, Redfin makes the infringing 

systems of the ’885 (claims 1, 3, & 9), ’673 (claim 10), and ’973 (claims 4 & 17) Patents. See Dkt. 

248-1, 248-2, 248-4. As a real estate broker, Redfin also puts the entire system into use by 

deploying them on or from Redfin.com to sell more real estate, and thus, also directly infringes 

the system claims by use. Tr. 774:14–775:21, 812:5–16 (number of views).8

 

2. All Substantial Evidence Demonstrates that Spatial Boundaries Define 

or Correspond to a Parcel Outline. 

First, it is undisputed that parcel outline is not an element of any claim of the ’673 patent. 

So this argument can be immediately rejected relative to the ’637 patent claims 1, 2, and 10. With 

respect to the remaining three patents, as it did at trial, Redfin misrepresents the requirements of 

the claim. No claim recites that the parcel outline defines a spatial boundary; cf. Dkt. 261 at 28–

29. Redfin has it backwards, even at this late stage. Instead, the claims require one or more spatial 

boundaries to define or correspond to a parcel outline. With respect to “defines,” Redfins expert 

admitting each spatial boundary located on the property using location information and defines 

that parcel: “Q. In every instance, right? A. If there's a virtual tour, then the virtual tour's 

intended to be for the same address...” Tr. 1425:19-1426:6. Redfin also admitted that the models 

are located on the correct addressed parcel using geographical information. Id. 1426:7–1427:20. 

Contrary to these facts and this Court’s order, Dr. Navratil adopted a logically outrageous 

8 See also PX-48, PX-5, PX-123, PX-44, PX-94, Tr. 978:4–6, 775:16–17, 773:2–775:21. 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 25 of 28
20 

construction—namely that the parcel outline (legal representation of the property) had to be the 

same as floors and rooms like kitchens—a condition he conceded is never satisfied, ever. 

Tr. 1420:23–1421:15, 1422:20–1423:14 (“it means that the kitchen has to be the parcel 

outline, the bedroom has to be the parcel outline. And I've never seen a house like that.”). JMOL 

is warranted since Dr. Navratil refused to follow the Court’s construction.

3. The Accused Models Are Generated From a Selected Viewpoint. 

Even understanding Redfin’s position here is difficult; obviously a model is rendered 

dependent on a point of view. Redfin’s witnesses agreed, with Mr. Gausebeck testifying: 

Q. And it has to move those triangles around that we saw. And those triangles 

actually change orientation and shape as you turn around, right?

A. Yeah. They're drawn differently as you change your viewpoint. 

Tr. 1088:25–1090:5, 540:24–541:9; 543:22–544:8 (Showcase javascript software on Redfin users’ 

computers renders models). Dr. Navratil confirmed: 

Q. As the user is interacting with the space using the navigation controls, the 

code on their computer will update the rendering to show the space in various 

perspectives?

A. That sounds right. Yes.

Q. And if a user wants to see a floor, that same code will render and change 

what is displayed based on the requested floor and the selected space, right?

A. If they're -- so if they're selecting a -- if they're selecting from a floor, then 

it will move that viewpoint to the floor that they selected. 

Tr. 1440:8–1441:1. Mr. Gausebeck admitted the model is rendered based on a viewpoint. Tr. 

542:1–542:8. Indeed, Redfin provides code the sole purpose of which is rendering a model based 

on customer navigation. Tr. 518:20–518:22 (“A. That's the only reason it's there.”).

III. CONCLUSION

For the foregoing reasons and those in Surefield’s opening motion, Surefield respectfully 

requests that the Court grant Surefield’s motion and enter an order for judgment as a matter of law, 

in Surefield’s favor on the issues of infringement and invalidity, or, in the alternative, grant a new 

trial under Rule 59. See Fed. R. Civ. P. 50(b); 59. 

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 26 of 28
21 

Dated: October 21, 2022 Respectfully submitted,

/s/ Andrew G. DiNovo

Andrew G. DiNovo

Texas State Bar No. 00790594 

adinovo@dinovoprice.com 

Nicole E. Glauser

Texas State Bar No. 24050694 

nglauser@dinovoprice.com 

Christopher V. Goodpastor 

Texas State Bar No. 00791991 

cgoodpastor@dinovoprice.com 

Adam G. Price

Texas State Bar No. 24027750 

aprice@dinovoprice.com 

Gregory S. Donahue 

Texas State Bar No. 24012539 

gdonahue@dinovoprice.com 

Gabriel R. Gervey

Texas State Bar No. 24072112 

ggervey@dinovoprice.com 

Michael D. French (Pro Hac Vice) 

mfrench@dinovoprice.com 

DINOVO PRICE LLP

7000 N. MoPac Expressway, Suite 350 

Austin, Texas 78731 

Telephone: (512) 539-2626 

Facsimile: (512) 539-2627 

Steven W. Fogg (pro hac vice) 

sfogg@corrcronin.com 

Eric A. Lindberg (pro hac vice) 

elindberg@corrcronin.com 

CORR CRONIN, LLP

1001 Fourth Avenue, Suite 3900 

Seattle, Washington 98154 

Telephone: (206) 625-8600 

Mark P. Walters (pro hac vice)

walters@lowegrahamjones.com

LOWE GRAHAM JONES, PLLC

701 Fifth Avenue, Suite 4800 

Seattle, Washington 98104 

Telephone: (206) 381-3300 

ATTORNEYS FOR PLAINTIFF

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 27 of 28
22 

CERTIFICATE OF SERVICE

I hereby certify that on October 21, 2022, I electronically filed the foregoing with the Clerk 

of the Court using the CM/ECF system and all counsel of record have been served via email. 

 /s/ Andrew G. DiNovo

 Andrew G. DiNovo

Case 6:20-cv-00376-ADA Document 271 Filed 10/28/22 Page 28 of 28