1 

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

INFORMATION IMAGES, LLC, 

Plaintiff,

v.

PGA TOUR, INC., 

Defendant.

6:20-cv-0268-ADA

MEMORANDUM OPINION AND ORDER

Came on for consideration this date is Defendant PGA TOUR, Inc.’s (“PGA TOUR”) 

Motion for Summary Judgment of Noninfringement and Invalidity Under Sections 101 and 112. 

ECF No. 74 (the “Motion”). On March 25, 2022, Plaintiff Information Images, LLC (“Information 

Images”) filed a response (ECF No. 83), to which PGA TOUR replied on April 1, 2022. ECF No. 

90. On May 13, 2022, the Court held a pretrial conference, in which the court orally granted the

Motion with regard to divided infringement. See ECF No. 122 at 80:21–81:1. The Court also sua 

sponte granted the Motion as to Information Images’ indirect infringement claim. Id. at 81:20. The 

Court, however, reserved its judgment on the remaining issues in the Motion until a later date. See 

id. at 81:2–5. After the Court concluded its pretrial conference, the Court requested supplemental 

briefing from the parties on the applicability of the Federal Circuit’s decision in Travel Sentry, Inc. 

v. Tropp, 877 F.3d 1370, 1372 (Fed. Cir. 2017), to the issues of divided infringement presented in

the Motion. Information Images submitted its supplemental brief on September 12, 2022 (ECF No. 

123), and PGA TOUR submitted its supplemental brief on September 26, 2022. ECF No. 124. 

After careful consideration of the Motion, the parties’ briefs, and the applicable law, the 

Court GRANTS the Motion as to Information Images’ claims of direct infringement of the 

asserted method and system claims. Although PGA TOUR did not even move for summary 

PUBLIC VERSION

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Three significant components of the alleged invention are: 

(1) A portable device used by an authorized “spotter” to input data about the golf ball after

it has been hit (the “gathering” of the information). The claims refer to this device as the “first 

portable device.” See, e.g., ’832 Patent at cl. 1. 

judgment of no indirect infringement in its motion or during oral argument (see generally ECF 

Nos. 74, 90, 121), because we find that there is no direct infringement, the Court GRANTS

summary judgment as to Information Images’ claims of indirect infringement. See Limelight 

Networks, Inc. v. Akamai Techs., Inc., 572 U.S. 915, 917 (2014). Finally, because there is no direct 

or indirect infringement of the asserted claims, the Court GRANTS PGA TOUR summary 

judgment on Information Images’ claims that it is entitled to damages from PGA TOUR’s contract 

with IMG Arena, a European Company that licenses ShotLink data. 

I. BACKGROUND

Information Images is asserting U.S. Patent No. 9,806,832 (the “’832 Patent”) and its 

continuation, Patent No. 10,270,552 (the “’552 Patent”). The perceived problem that the patents 

allegedly solve is that at “golf tournaments, it is difficult for spectators to get real-time information 

about the status [of] players who may be a great distance away from where the spectator is 

watching, or may not be visible at all.” ’832 Patent at 1:26–30; ’552 Patent at 1:28–30. To address 

that problem, the patents disclose “systems and methods of gathering, processing, and broadcasting 

real-time information of the sporting event to portable devices carried by spectators of the sporting 

event.” ’832 Patent at 1:41–45. Consequently, the preambles of all four asserted independent 

claims (claims 1 and 5 of the ’832 Patent and claims 1 and 13 of the ’552 Patent) recite a system 

or method “of gathering, processing, and distributing information of a golf tournament over a 

wireless network.” ’832 Patent 15:19–20, 16:14–15; ’552 Patent at 15:20–21, 16:49–50. 

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’832 Patent at Fig. 32. 

(2) A portable device used by patrons of the tournament to request and receive input data

from the production module over the wireless network (the “distributing” of the information). The 

claims refer to this device as the “second portable device.” See, e.g., id. 

(3) A “production module” (essentially a back-end computer server which includes a

“processing module”) that receives the input data from the first portable device over a wireless 

network and distributes it in response to queries (the “processing” of the information). See, e.g.,

id. 

These three components and their communication of data over the wireless network are 

depicted in an exemplary embodiment in Figure 32: 

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1. A system of gathering, processing, and distributing information

of a golf tournament over a wireless network, comprising:

a first portable device configured to be carried by a broadcast or

other authorized spotter of the golf tournament, the spotter having

special permitted access to a golf course of the golf tournament and

to participants of the golf tournament, the first portable device

including a map of the golf course, the first portable device being

configured to receive input data from the spotter regarding status

of a selected player's golf ball during the golf tournament in real

time after the golf ball has been hit by the selected player on a

current hole of the selected player, the first portable device being

configured to present information regarding the location and

distance of the selected player's ball relative to the map of the golf

course in real time after the ball has been hit by the selected player,

the input data including information pertaining to the lie and the

condition of the golf ball being tracked by the spotter and the

selected player's strokes as they occur, the first portable device being

configured to transmit the input data over the wireless network in

real time during the golf tournament;

a second portable device carried by a patron of the sporting

event to receive transmitted input data over the wireless

network, and to selectively display current statistics pertaining

to the selected hole and graphical representations of the

transmitted input data according to an input from the patron,

the second portable device comprising a memory with preprogrammed information stored therein, the pre-programmed

information including endorsements of respective participants of the

golf tournament by manufacturers of equipment used by the

respective participants of the golf tournament; and

a production module configured to receive transmitted input data

over the wireless network simultaneously from a plurality of

spotters covering various players of the golf tournament, the

production module being configured to display transmitted input

data such that the production module selectively distributes a

portion of the transmitted input data to an external television

network based on characteristics of displayed input data, the

production module having a processing module connected between

the production module and the wireless network, the processing

The first (spotter’s) portable device, the second (patron’s) portable device, and the 

production module with processing module are all required by each of the asserted independent 

claims. Information Images is asserting two independent system claims: claim 1 of the ’832 Patent 

and claim 1 of the ’552 patent. For example, asserted claim 1 from the ’832 Patent states:

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module configured to receive data requests over the wireless 

network simultaneously from a plurality of second portable devices 

and to distribute requested data to each second portable device over 

the wireless network based on received data requests from each 

second portable device, respectively.

’832 Patent at cl. 1 (emphasis added). Information Images is also asserting two independent 

method claims: claim 5 of the ’832 Patent and claim 13 of the ’552 patent. For example, claim 5 

of the ’832 Patent (reproduced below) is a corresponding method claim to Claim 1 above. 

Specifically, Asserted Claim 5 states the following: 

5. A method of gathering, processing, and distributing information

of a golf tournament over a wireless network, the method

comprising:

providing a first portable device to be carried by a broadcast or

other authorized spotter of the golf tournament, the first portable

device including a map of the golf course, the spotter having special

permitted access to a golf course of the golf tournament and to

participants of the golf tournament;

inputting data by the spotter to the first portable device

regarding status of a player's golf ball during the golf tournament in

real time after the golf ball has been hit by the player on a current

hole of the player, the first portable device being configured to

present information regarding the location and distance of the

player's ball relative to the map of the golf course in real time after

the ball has been hit by the player, the input data including

information pertaining to the lie and the condition of the golf ball

being tracked by the spotter and the player's strokes as they occur;

transmitting input data over the wireless network to a second

portable device carried by a patron of the golf tournament in

real time during the golf tournament, the second portable device

comprising a memory with pre-programmed information stored

therein, the pre-programmed information including endorsements of

respective participants of the golf tournament by manufacturers of

equipment used by the respective participants of the golf

tournament;

transmitting input data over the wireless network to a production

module simultaneously from a plurality of spotters covering various

players of the golf tournament, the production module being

configured to display transmitted input data such that the production

module selectively distributes a portion of the transmitted input data

to an external television network based on characteristics of

displayed input data, the production module having a processing

module connected between the production module and the wireless

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network, the processing module configured to receive data requests 

over the wireless network simultaneously from a plurality of second 

portable devices and to distribute requested data to each second

portable device over the wireless network based on received data 

requests from each second portable device, respectively; and

selectively displaying graphical representations of the transmitted 

data on the second portable device according to inquiries of the 

patron. 

’823 Patent at cl. 5. 

Information Images accuses PGA TOUR’s ShotLink System as infringing both of the 

asserted patents. See, e.g., ECF No. 1 ¶ 28. ShotLink is PGA TOUR’s system for capturing and 

determining information about golf shots during golf tournaments. ECF No. 74 at 6. A variety of 

equipment and personnel are used to determine and calculate data such as the path of the ball 

through the air, the speed of the ball during flight, and the location of the ball after it comes to rest. 

See id. That data is aggregated and then distributed for use by PGA TOUR’s Digital Operations 

team as well as by third parties who have licensed the data. Id. According to the PGA TOUR, the 

PGA TOUR’s Digital Operations team is responsible for creating the digital platforms that golf 

fans can use to interact with PGA TOUR electronically. Id. These platforms include PGA TOUR’s 

website (www.pgatour.com) and PGA TOUR’s mobile app for iPhones and Android devices. Id.

The public generally cannot access ShotLink. Yet one of the Digital Operations platforms 

is called TOURCast, which can be found on pgatour.com and within the PGA TOUR mobile app. 

Id. at 6–7. By using their computers or phones to access TOURCast, the public can view data that 

originated from ShotLink, such as by viewing shot trails showing the path of a golf shot. Id. at 7.

PGA TOUR has a contract with a company in Europe known as IMG Arena that includes 

a license to certain ShotLink data. Id. In connection with the contract, PGA TOUR sends IMG 

Arena data from the ShotLink system during golf tournaments. Id. IMG Arena is then permitted 

to use the data for its own business purposes, which relate to sports betting. Id.

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Information Images alleges that PGA TOUR is infringing in two ways. Id. at 8. First, by 

using its ShotLink system to collect data at golf tournaments and then licensing and sending the 

data to IMG Arena. Id. Second, by the combination of using the ShotLink system with members 

of the public using their computers and phones to access PGA TOUR’s website or PGA TOUR’s 

mobile app to view the ShotLink data. Id.

II. LEGAL STANDARD

A. Summary Judgment

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a); Tolan v. Cotton, 572 U.S. 650, 656–57 (2014). A material fact is one that is likely to 

reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986). An issue is not genuine if the trier of fact could not, after an examination of the record, 

rationally find for the non-moving party. Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986). As a result, the burden of demonstrating that no genuine dispute of material 

fact exists lies with the party moving for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 

317, 323 (1986). 

Once presented, a court must view the movant’s evidence and all factual inferences from 

such evidence in a light most favorable to the party opposing summary judgment. Impossible 

Elecs. Techniques v. Wackenhut Protective Sys., Inc., 669 F.2d 1026, 1031 (5th Cir. 1982). 

Accordingly, the simple fact that the court believes that the non-moving party will be unsuccessful 

at trial is insufficient reason to grant summary judgment in favor of the moving party. Jones v. 

Geophysical Co., 669 F.2d 280, 283 (5th Cir. 1982). However, “[w]hen opposing parties tell two 

different stories, but one of which is blatantly contradicted by the record, so that no reasonable 

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CIV. P. 56; Matsushita, 475 U.S. at 586.

B. Divided Infringement

Direct infringement occurs when an entity “without authority makes, uses, offers to sell, or 

sells any patented invention, within the United States or imports into the United States any patented 

invention during the term of the patent therefor.” 35 U.S.C. § 271(a). 

The Federal Circuit has held that, for method claims, direct infringement “occurs where all 

the steps of a claimed method are performed by or attributable to a single entity.” Akamai Tech., 

Inc. v. Limelight Networks, Inc., 797 F.3d 1020, 1022 (Fed. Cir. 2015) (hereinafter Akamai V) 

(emphasis added). When the steps are performed by multiple entities, “a court must determine 

whether the acts of one are attributable to the other such that a single entity is responsible for the 

jury could believe it, a court should not adopt that version of the facts for the purposes of ruling 

on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380–81 (2007). 

Once the court determines that the movant has presented sufficient evidence that no 

genuine dispute of material fact exists, the burden of production shifts to the party opposing 

summary judgment. Matsushita, 475 U.S. at 586. The non-moving party must demonstrate a 

genuinely disputed fact by citing to parts of materials in the record, such as affidavits, declarations, 

stipulations, admissions, interrogatory answers, or other materials; or by showing that the materials 

cited by the movant do not establish the absence of a genuine dispute. FED. R. CIV. P. 56(C)(1)(A)–

(B). “Conclusory allegations unsupported by concrete and particular facts will not prevent an 

award of summary judgment.” Duffy v. Leading Edge Prods., 44 F.3d 308, 312 (5th Cir. 1995). 

Moreover, unsubstantiated assertions, improbable inferences, and unsupported speculation are not 

competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). 

After the non-movant has been given the opportunity to raise a genuine factual issue, if no 

reasonable juror could find for the non-movant, summary judgment will be granted. See FED. R.

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(1) an agreement, express or implied, among the members of the

group; (2) a common purpose to be carried out by the group; (3) a

community of pecuniary interest in that purpose, among the

members; and (4) an equal right to have a voice in the direction of

the enterprise giving equal rights of control.

Id. 

For there to be infringement of an apparatus claim by use, there needs to be a single party 

using all elements of the claimed system. Centillion Data Sys. LLC v. Qwest Communications Int’l

Inc., 631 F.3d 1279, 1284 (Fed. Cir. 2011); see also Acceleration Bay LLC v. 2K Sports, Inc., 15 

F.4th 1069, 1074 (Fed. Cir. 2021) (upholding the district court’s finding that “making a system

under § 271(a) requires a single entity to combine all the claim elements and that, if a customer, 

rather than an accused infringer, performs the final step to assemble the system, then the accused 

infringer has not infringed.”). For purposes of infringement, use of the system requires a party to 

“control the system as a whole and obtain benefit from it.” Id.

C. Indirect Infringement

Section 271(b) of the Patent Act provides that “[w]hoever actively induces infringement of 

a patent shall be liable as an infringer.” 35 U.S.C. § 271(b). To succeed on such a claim, the 

patentee must show that the accused infringer (1) knowingly induced direct infringement and (2) 

possessed “specific intent” to induce that infringement. See MEMC Electr. Materials, Inc. v. 

infringement.” Id. An entity is responsible for another’s “performance of method steps in two sets 

of circumstances: (1) where that entity directs or controls others’ performance, and (2) where the 

actors form a joint enterprise.” Id. (numerals in original). Courts may find direct infringement 

“when an alleged infringer conditions participation in an activity or receipt of a benefit upon 

performance of a step or steps of a patented method and establishes the manner or timing of that 

performance.” Id. at 1023. But to show that a joint enterprise exists, a plaintiff must prove four 

elements: 

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1 See Mankes v. Vivid Seats Ltd., 822 F.3d 1302, 1304 (Fed. Cir. 2016) (referring to “divided 

infringement”); BMC, 498 F.3d at 1380–81 (same).

2 See Lyda v. CBS Corp., 838 F.3d 1331, 1338 (Fed. Cir. 2016) (referring to “joint infringement”); 

Muniauction, 532 F.3d at 1328–29 (same).

Mitsubishi Materials Silicon Corp., 420 F.3d 1369, 1378 (Fed. Cir. 2005). Induced infringement 

under § 271(b) can only arise if direct infringement under § 271(a) has occurred. Limelight 

Networks, 572 U.S. 915 at 917.

III. ANALYSIS

Direct infringement under 35 U.S.C. § 271(a) occurs “where all steps of a claimed method 

are performed or attributable to a single entity.” Akamai V, 797 F.3d at 1022. The concept of 

“divided” infringement,1also sometimes referred to as “joint” infringement,2relates to situations 

where more than one actor is involved in practicing claimed method steps but “the acts of one are 

attributable to the other such that a single entity is responsible for the infringement.” Id.

Although “[a] patentee can usually structure a claim to capture infringement by a single 

party,” BMC Res., Inc. v. Paymentech, L.P., 498 F.3d 1373, 1381 (Fed. Cir. 2007), PGA TOUR

has moved for summary judgment, arguing that this Court can conclude as a matter of law that 

PGA TOUR does not infringe because claimed method steps its patrons indisputably perform 

cannot be attributed to PGA TOUR. PGA TOUR has also moved for summary judgment as to the 

asserted system claims, arguing that PGA TOUR itself does not put the accused system into service 

because it does not control its patrons’ devices. The method and system issues are, in the Court’s 

view, related; the Court grants summary judgment as to both types of claims. And because the 

Court finds no direct infringement, the Court finds that as a matter of law PGA TOUR cannot 

indirectly infringe the asserted claims. Similarly, because there is no direct or indirect infringement 

of the asserted claims, PGA TOUR is also entitled to summary judgment on Information Images’

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claims that it is entitled to damages from PGA TOUR’s contract with IMG Arena, a European 

Company that licenses ShotLink data. 

A. Method Claims

Claim 5 of the ’832 patent is directed to a method of “gathering, processing, and 

distributing information” that includes steps like: having a “spotter” input data “regarding status 

of a player’s golf ball during the golf tournament in real time” into a “first portable device”; 

“transmitting input data over the wireless network to a second portable device carried by a patron 

of the golf tournament in real time”; and “selectively displaying graphical representations of the 

transmitted data on the second portable device according to inquiries of the patron.” ’832 patent at 

16:15–64. Claim 13 of the ’552 patent generally requires these same steps with modifications 

immaterial to this Court’s analysis of the divided infringement issue. See ’552 patent at 16:49–

17:29. 

PGA TOUR contends it cannot infringe because it does not perform the “selectively 

displaying graphical representations of the transmitted data on the second portable device 

according to inquiries of the patron” step. ECF No. 74 at 15–17. Information Images identifies the 

“second portable device” in the accused system as a smartphone, laptop, or other portable device 

that a member of the public uses to view data originating from ShotLink through (a) accessing 

PGA TOUR’s website; or (b) running Information Images’ mobile app. See id. at 13; ECF No. 75-

2, Valerdi Dep. at 61:23–63:4 (examples of the “second portable device” include a user’s/patron’s 

Apple iPhone or laptop computer, such as Information Images’ expert’s own iPhone). PGA TOUR

argues it is not the PGA TOUR that performs the “selectively displaying” step but instead “the 

patron”—a member of the public owning and operating the accused second portable device. PGA 

TOUR concludes that, because it does not perform that “selectively displaying” step, it cannot 

infringe. ECF No. 74 at 16. Though Information Images never argues that the PGA TOUR

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performs the “selectively displaying” step, it contends that step may nevertheless be attributed to 

the PGA TOUR. ECF No. 83 at 12. 

Information Images does not justify attributing the “selectively displaying” step to PGA

TOUR based on an agency relationship or some contractual responsibility between PGA TOUR

and its patrons. See generally id. Instead, it relies on what has been referred to as “Akamai V’s

two-prong test.” See Travel Sentry, 877 F.3d at 1380. Akamai V’s first prong considers whether

the “alleged infringer conditions participation in an activity or receipt of a benefit upon 

performance of” the method step or steps it does not itself perform. 797 F.3d at 1023. The second 

prong considers whether the alleged infringer “establishes the manner or timing of that

performance.” Id. The Federal Circuit recently described one “common thread” connecting its

opinions applying Akamai V to find a properly articulated divided infringement: “evidence that a 

third party hoping to obtain access to certain benefits can only do so if it performs certain steps

identified by the defendant, and does so under the terms prescribed by the defendant.” Travel

Sentry, 877 F.3d at 1380. 

1. PGA TOUR Does Not Condition a Benefit of Patrons Performing Method

Steps

At the first prong, Information Images must show that PGA TOUR offered its customers a 

benefit or access to an activity but conditioned receipt of that benefit/access on the customer

performing the “selectively displaying” step. See Akamai V, 797 F.3d at 1023. Consistent with the 

framework provided in Travel Sentry, 877 F.3d at 1381, the Court (a) must first characterize the

relevant benefit or activity PGA TOUR offered its patrons (b) before moving to consider whether

PGA TOUR conditions access to the activity or benefit on performing the “selectively displaying” 

step. 

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a. Characterizing the Benefit/Activity

In its supplemental briefing addressing Travel Sentry, Information Images clarifies what it

considers to be relevant benefit or activity here. See ECF No. 123 at 1–3. First, Information Images 

defines the relevant activity as “selectively displaying graphical representations of the transmitted 

data on the second portable device according to inquiries” of the patron. Id. at 2. This is an activity 

that is different from what Information Images previously identified. Indeed, in its original briefing 

it contended that the relevant activity was “use of a second portable device.” See ECF No. 83 at 

10, 12. Second, Information Images contends that the PGA TOUR “conditions a patron’s receipt 

of the benefit of free access to real-time interactive golf tournament related information, status, 

and results, on the patron’s performance of inputting inquiries into the PGATour.com app or 

TOURCast platform on the second portable device in the manner specified by PGA TOUR, for 

example through the buttons on the TOURCast platform allows a patron to inquire about certain 

players and holes on the course.” ECF No. 123 at 3 (emphasis in original). 

In response, PGA TOUR acknowledges the discrepancies between the activity/benefit of 

Information Images’ original briefing and its supplemental briefing. See ECF No. 124 at 1–2. First, 

PGA TOUR first contends that Information Images’ new arguments regarding activity are 

incorrect. Id. at 1. PGA TOUR argues the relevant activity here is “obtaining golf tournament data 

from PGA TOUR” because “PGA TOUR provides third party users of its website and mobile app 

with PGA TOUR-collected golf tournament data.” Id. at 2. Second, with respect to the benefit 

portion of the Akamai V test, the PGA TOUR asserts the benefit provided to third parties here “is 

the ability to receive tournament-related information without having to observe the underlying golf 

event.” Id. PGA TOUR contends that Information Images’ alleged benefit, “free access to realtime interactive golf tournament related information, status, and results,” is “overly specific 

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because it does not always flow from obtaining PGA TOUR golf tournament data.” Id. According 

to PGA TOUR, “[r]eal-time tournament information is available, but so is historical information 

– whether from an hour ago or from a decade ago.” Id. Likewise, PGA TOUR argues that its “app

and website provides golf tournament information not just interactively but also noninteractively, 

such as tournament information presented on the home page of pgatour.com, as well as information 

automatically sent to PGA TOUR mobile app users as a Notification, without the user making an 

inquiry.” Id. 

The Court finds that the thorny issue here is defining the relevant activity. In Travel Sentry, 

the Federal Circuit held that the district court “erred by defining the relevant activity in an unduly 

broad manner.” 877 F.3d at 1381. The Court therefore must be cognizant not to define the relevant 

activity too broadly or without explanation. See id. Thus, the Court finds that a review of how the 

Federal Circuit in Travel Sentry came to its relevant activity would be helpful here. 

In Travel Sentry, the defendant, Travel Sentry, was accused of infringing patents directed 

to methods of improving airline luggage inspection through the use of dual-access locks. 877 F.3d 

at 1372. Travel Sentry had entered a memorandum of understanding (“MOU”) with the 

Transportation Safety Administration (“TSA”), providing that “Travel Sentry will supply TSA 

with master keys (termed ‘passkeys’) to open checked baggage secured with” Travel Sentry’s 

certified locks. Id. at 1373. The MOU “is the only written agreement between TSA and Travel 

Sentry concerning Travel Sentry certified locks.” Id. There was seemingly no dispute that it was 

the TSA, not Travel Sentry, that performed the final two steps of the claimed methods: identifying 

luggage with a special lock that screening entity had passkeys to; and, pursuant to an agreement, 

unlocking the special lock using a passkey to allow access into the luggage. At prong one of the 

Akamai V test, the Federal Circuit rejected the trial court’s characterization of the relevant activity 

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as “luggage screening” generally. Id. at 1381. Rather, the panel read the MOU to provide a more 

specific activity: “screening luggage that TSA knows can be opened with the passkeys provided 

by Travel Sentry.” Id.

As can be seen above in Travel Sentry, the Federal Circuit relied heavily on the MOU in 

order to formulate its relevant activity. Here, by contrast, there is no specific written agreement 

between the PGA TOUR and the end users. Although Information Images asserts that users of 

PGA TOUR’s mobile app and website enter into an end user license agreement (“EULA”) “that 

requires patrons to use and operate the PGA TOUR app and TOURCast platform in a manner 

consistent with the EULA, Terms of Service, and Privacy Policy” (ECF No. 123 at 4–5), 

Information Images’ only evidence of an agreement is the text of the EULA filed as Ex. M at ECF 

No. 83. But, as will also be discussed below, Information Images points to nothing in the EULA 

that establishes the manner and timing of the user’s performance of the method steps at issue.

Reading the EULA confirms that nothing in it requires or instructs users to perform any actions 

required by the patent claims or tells them how or when to do so. See ECF No. 83 at Ex. M. In 

direct contrast, in Travel Sentry, the MOU delineated how TSA was to use the passkeys and open 

locks. 877 F.3d at 84. 

The Court finds that neither party’s activity to be on point. PGA TOUR offers a somewhat

broad, but accurate, characterization of the relevant activity: “obtaining golf tournament data from 

PGA TOUR.” By contrast, Information Images requires a very narrow construction of the relevant 

activity: “selectively displaying graphical representations of the transmitted data on the second 

portable device according to inquiries.” Unlike the plaintiff in Travel Sentry, Information Images 

does not tie any of this language to the EULA—the only purported agreement between the end 

users and the PGA TOUR here. Rather, Information Images merely copies the direct language of 

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the method claims: “selectively displaying graphical representations of the transmitted data on the 

second portable device according to inquiries of the patron.” See ’832 Patent at cl. 5. The Court 

finds that PGA TOUR’s relevant activity aligns closer with the analysis of Travel Sentry than 

Information Image’s relevant activity. In Akamai V, defendant Akamai provided a content delivery 

network for use by the third-party customers. Thus, the relevant activity for the divided 

infringement analysis was “use of [Akamai]’s content delivery network.” Akamai V, 797 F.3d at

1024 (emphasis added). Similarly, in Travel Sentry, the defendant provided the TSA with a 

passkey-based system that enabled the TSA to screen luggage compatible with its passkeys. Thus, 

the relevant activity was “screening luggage that TSA knows can be opened with the passkeys 

provided by Travel Sentry.” 877 F.3d at 1381 (emphasis added). Analogously, PGA TOUR

provides third party users of its website and mobile app with PGA TOUR-collected golf 

tournament data. Yet the relevant activity here is not merely “obtaining golf tournament data from 

PGA TOUR”—as PGA TOUR suggests—because that is not sufficiently tied to the activity at 

issue. Instead, the Court finds that the relevant activity here is “displaying graphical 

representations of ShotLink data on a portable device.” 

As to the relevant benefit, Information Images contends that it is “free access to real-time 

interactive golf tournament related information, status, and results.” By contrast, PGA TOUR

contends that it “is the ability to receive tournament-related information without having to observe 

the underlying golf event.” The Court finds both benefit definitions incorrect. There is nothing in 

the record that requires the benefit being conveyed here be “free” as Information Images contends. 

Likewise, there is nothing in the record that supports PGA TOUR’s contention that the benefit is 

receiving ShotLink data “without having to observe the underlying golf event.” With respect to 

the “benefit” portion of prong one of the Akamai V test, the benefit provided to the TSA in Travel 

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Sentry was the ability to open identifiable luggage using a master key, preventing the need to break 

open the lock, among other benefits flowing therefrom. See Travel Sentry, 877 F.3d at 1382. 

Analogously, the main benefit to third-party users here is access to ShotLink data on a portable 

device. Although Information Images contends that the information should be in “real time,” that 

does not always flow from the relevant activity here—“displaying graphical representations of 

ShotLink data on a portable device.” Real-time tournament information is available, but so is 

historical information—whether from an hour ago or from a decade ago. See ECF No. 124 at 2. 

b. Receipt of the Benefit Was Not Conditioned on the Claimed Steps

Could a reasonable jury conclude that PGA TOUR conditioned the activity or benefit on

third parties performing a step of the patented method, namely making data inquiries on a portable 

device? See ECF No. 74 at Ex. 1 at cl. 5 (“... to distribute requested data to each second portable 

device over the wireless network based on received data requests from each second portable 

device”; “selectively displaying graphical representations of the transmitted data on the second 

portable device according to inquiries of the patron.”). As explained below, the Court finds that 

the answer is no. There are numerous ways for the public to participate in the relevant activity and 

receive the relevant benefit without having to perform the claimed method steps. 

To reiterate, the Court found above that the relevant activity to be: “displaying graphical 

representations of ShotLink data on a portable device.” And the Court found that the relevant 

benefit to be is “access to ShotLink Data on a portable device.” PGA TOUR explains that “the 

public can obtain PGA TOUR tournament data by watching the tournament on TV broadcasts, 

which include displays of graphical representations of real-time PGA TOUR golf tournament 

information, status, and results without the need to make any inquiry.” ECF No. 124 at 3. Critically, 

opening PGA TOUR’s website or mobile app provides the user with real-time golf tournament 

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information, status, and results on the homepage without the need to submit any inquiry. Id. Users 

with the PGA TOUR mobile app on their phone can also receive automatic real-time notifications 

containing golf tournament related information, status, and results from PGA TOUR, again 

without the need to make an inquiry. Id.

That the third parties can obtain golf tournament information from PGA TOUR and receive 

the accompanying benefits without performing the patent’s method steps is a critical distinction 

from Travel Sentry. The Federal Circuit explained there that the “common thread” of the divided 

infringement caselaw finding liability was “that a third party hoping to obtain access to certain 

benefits can only do so if it performs certain steps identified by the defendant, and does so under

the terms prescribed by the defendant.” 877 F.3d at 1380. Indeed, in Travel Sentry, “whatever 

benefits flow to TSA from identifying luggage with Travel Sentry's dual-access locks and from 

opening these locks with the passkeys that Travel Sentry provided can only be realized if TSA 

performs the final two claim steps.” Id. at 1382–83 (emphasis added). Likewise, in Akamai V, 

customers were permitted to use Akamai’s content delivery network only if they performed the 

tagging and serving steps required by the patent claim. Akamai V, 797 F.3d at 1025; see also Eli 

Lilly & Co. v. Teva Parenteral Medicines, 845 F.3d 1357, 1366 (Fed. Cir. 2017) (patients were 

given the chemotherapy treatment at issue by their doctors only if they performed the pre-treatment 

steps found in the patent claim). In each of those cases, if the third party failed to perform the steps 

in the claim that were not performed by the defendant itself, the third party was denied the 

defendant’s product or service and its resulting benefits. 

In contrast, the third-party members of the public can obtain PGA TOUR’s golf tournament 

data without performing the method steps at issue because the patented method requires the public 

to make data inquiries on a second portable device. PGA TOUR has not conditioned participation 

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2. Even if PGA TOUR Satisfied Akamai V Prong One, PGA TOUR Does Not

Control the Manner and Time

Even though the Court found above that summary judgment should be granted as to 

Information Images’ asserted method claims because they fail prong one of the Akamai V two-part

test, the Court will now consider whether Information Images would have satisfied prong two were 

the Court to have adopted Information Images’ relevant activity and benefit and found that PGA 

TOUR conditioned receiving them on performance of the method steps. As explained below, the 

Court finds that PGA TOUR does not control the manner and time of performance. Drawing a 

comparison to the MOU agreement between Travel Sentry and the TSA, Information Images

asserts that users of PGA TOUR’s mobile app and website enter into an EULA “that requires 

patrons to use and operate the PGA TOUR app and TOURCast platform in a manner consistent 

with the EULA, Terms of Service, and Privacy Policy.” See ECF No. 123 at 5. Information Images’

only evidence is the text of the EULA filed as Ex. M at ECF No. 83. The Court finds this fails to 

raise a genuine issue of material fact.

in the activity, or receipt of the benefit, on making inquiries on a portable device; the numerous 

other options listed above are available, such as using pgatour.com or watching a live broadcast 

on a portable device. The Court therefore finds that PGA TOUR is entitled to summary judgment 

on the asserted method claims. See ESW Holdings, Inc. v. Roku, Inc., No. 6-19-CV-00044-ADA, 

2021 WL 1069047, at *4 (W.D. Tex. Mar. 18, 2021) (holding no genuine issue of material fact 

and granting summary judgment upon finding that “users may enjoy the accused feature without 

performing the method steps at issue”); NeuroGrafix v. Brainlab, Inc., 2020 WL 5642946, at *18 

(N.D. Ill. Sept. 21, 2020) (“Stated differently, [the plaintiffs] have not presented evidence that the 

only way to use the [software] to create DTI images is by performing at least one of the steps of 

claim.”). 

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The EULA merely states the following:

“This Device Application [EULA] sets forth the terms and 

conditions for your use of any PGA TOUR Device Application. 

By using a PGA TOUR Device Application, you agree to be bound 

by this agreement. If you cannot or do not agree to comply with 

this Agreement, then you may not use any PGA TOUR Device 

Application. ... [I]n addition to the terms of this [EULA], you 

acknowledge and agree that your use of the PGA TOUR Device 

Application is also subject to: (a) the Terms of Service for the www. 

Pgatour.com website ... and (b) the PGATOUR.com Privacy 

Policy” 

ECF No. 83 at Ex. M. (emphasis added). 

First, Information Images provides no factual (or legal) support for its assertion that users 

of PGA TOUR’s website enter into that agreement. Second, Information Images points to nothing 

in the EULA that establishes the manner and timing of the user’s performance of the method steps 

at issue. The Court finds that reading the EULA confirms that nothing in it requires or instructs 

users to perform any actions required by the patent claims or tells them how or when to do so. See 

ECF No. 83 at Ex. M; Midwest Athletics & Sports All. v. Ricoh USA, No. 2:19-CV-00514, 2021 

WL 3722329, at *9 (E.D. Pa. Aug. 23, 2021) (“[T]he user manuals, software fixes, and license 

agreement on which [plaintiff] relies are general in nature, and none of them instructs—much less 

directs or controls—[defendant's] customers to perform each and every method of Claim 1”). In 

direct contrast, in Travel Sentry, the MOU delineated how TSA was to use the passkeys and open 

locks. 877 F.3d at 84. Finally, users are free to make data inquiries whenever they want, whether 

it is immediately after a golf play, or years later. Thus, both the manner and timing of “selectively 

displaying graphical representations of the transmitted data on the second portable device 

according to inquiries” is entirely up to the users and is not dictated by PGA TOUR. Information 

Images has not pointed to any evidence raising a genuine issue of material fact otherwise. For at 

least these reasons, the Court finds that a reasonable jury could not find that the PGA TOUR

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establishes the manner or timing of that performance even if the Court adopted Information 

Images’ activity/benefit under prong one of Akamai V. 

3. PGA TOUR Does Not Induce Infringement

Because induced infringement under § 271(b) can only arise if direct infringement under § 

271(a) has occurred, Limelight Networks, 572 U.S. 915 at 917, the Court finds that PGA TOUR

cannot induce the infringement of the third parties who use the second portable devices under the 

asserted method claims. 

B. System Claims

Claim 1 of the ’832 patent recites: 

1. A system of gathering, processing, and distributing information

of a golf tournament over a wireless network, comprising:

a first portable device configured to be carried by a broadcast or 

other authorized spotter of the golf tournament, . . . the first portable 

device being configured to receive input data from the spotter 

regarding status of a selected player’s golf ball during the golf 

tournament in real time after the golf ball has been hit by the selected 

player on a current hole of the selected player, the first portable 

device being configured to present information regarding the 

location and distance of the selected player's ball relative to the map 

of the golf course in real time after the ball has been hit by the 

selected player, . . . 

a second portable device carried by a patron of the sporting event to 

receive transmitted input data over the wireless network, and to 

selectively display current statistics pertaining to the selected hole 

and graphical representations of the transmitted input data according 

to an input from the patron, the second portable device comprising 

a memory with pre-programmed information stored therein, . . . ; 

and

a production module configured to receive transmitted input data 

over the wireless network simultaneously from a plurality of 

spotters covering various players of the golf tournament, the 

production module being configured to display transmitted input 

data such that the production module selectively distributes a 

portion of the transmitted input data to an external television 

network based on characteristics of displayed input data, the 

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production module having a processing module connected between 

the production module and the wireless network, the processing 

module configured to receive data requests over the wireless 

network simultaneously from a plurality of second portable devices 

and to distribute requested data to each second portable device over 

the wireless network based on received data requests from each 

second portable device, respectively.

’832 patent at 15:19–16:4. 

Claim 1 of the ’552 patent recites: 

1. A system of gathering, processing, and distributing information

of a golf tournament over a wireless network, comprising:

a first portable device configured to be carried by a spotter of the 

golf tournament, the spotter having special permitted access to a golf 

course of the golf tournament and to participants of the golf 

tournament, the first portable device including a map of the golf 

course, the first portable device being configured to receive input 

data from the spotter regarding status of a selected player's golf ball 

during the golf tournament in real time after the golf ball has been 

hit by the selected player on a current hole of the selected player, the 

first portable device being configured to present information 

regarding the location and distance of the selected player's ball 

relative to the map of the golf course in real time after the ball has 

been hit by the selected player, the input data including information 

pertaining to the lie and the condition of the golf ball being tracked 

by the spotter and the selected player's strokes as they occur, the first 

portable device being configured to distribute the input data over the 

wireless network in real time during the golf tournament; 

a second portable device carried by a user viewing the golf 

tournament to receive distributed input data over the wireless 

network, and to selectively display current statistics pertaining to the 

selected hole and graphical representations of the distributed input 

data according to an input from the user, the second portable device 

being configured to display pre-programmed information provided 

to the second portable device including endorsement information of 

manufacturers of equipment used by the respective participants of 

the golf tournament; and 

a production module configured to receive distributed input data 

over the wireless network simultaneously from a plurality of 

spotters covering various players of the golf tournament, the 

production module being configured to display distributed input 

data so as to selectively distribute at least a portion of the distributed 

Case 6:20-cv-00268-ADA Document 128 Filed 08/11/23 Page 22 of 32
23 

input data to an external television network based on characteristics 

of displayed input data, the production module having a processing 

module connected between the production module and the wireless 

network, the processing module being configured to receive data 

requests over the wireless network simultaneously from a plurality

of second portable devices and to distribute requested data to each 

second portable device over the wireless network based on received 

data requests from each second portable device, respectively.

’552 patent at 15:20–16:3. 

PGA TOUR contends it cannot infringe because it does not put the claimed “second 

portable device” into use. ECF No. 74 at 13–15. Information Imagesidentifies the “second portable 

device” in the accused system as a smartphone, laptop, or other portable device that a member of 

the public uses to view data originating from ShotLink through (a) accessing PGA TOUR’s 

website; or (b) running PGA TOUR’s mobile app. ECF No. 13 at 13; ECF No. 75-2, Valerdi Dep. 

at 61:23–63:4 (examples of the “second portable device” include a user’s/patron’s Apple iPhone 

or laptop computer, such as Information Images’ expert’s own iPhone). PGA TOUR argues it is

not the PGA TOUR but instead a member of the public owning and operating the accused second 

portable device that puts the second portable device into use. PGA TOUR concludes that, because 

it does not use the second portable device, it cannot infringe. ECF No. 74 at 13 (citing Centillion, 

631 F.3d at 1284). Information Images disagrees, arguing that PGA TOUR is “the single party 

controlling and benefiting from all elements of the ShotLink/TOURCast system, including the 

‘second portable device.’” ECF No. 83 at 11. 

The Federal Circuit holds that “direct infringement by ‘use’ of a system claim requires a 

party to use each and every element of a claimed [system].” Centillion, 631 F.3d at 1284 (cleaned 

up). In this Court’s view, it can accomplish that in one of at least two ways. The first is through 

“traditional” use, in which the accused infringer puts the entire accused system into service. The 

second is through divided infringement, wherein more than one actor is involved in using the 

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claimed system components but the use of one actor is attributable to the other such that a single 

entity is responsible for the infringement. 

1. PGA TOUR Does Not “Use” the Accused System

The Federal Circuit holds that “to ‘use’ a system for purposes of infringement, a party must 

put the invention into service.” Centillion, 631 F.3d at 1284 (citing NTP, Inc. v. Research In 

Motion, Ltd., 418 F.3d 1282 (Fed. Cir. 2005)). “In order to ‘put the system into service,’ the end 

user must be using all portions of the claimed invention.” Id. To “put the system into service” the 

accused infringer must “control the system as a whole and obtain benefit from it.” Id. (citing NTP, 

418 F.3d at 1282). Yet the requisite control need not be “physical” or “direct” control over each 

individual element of the system. See id.

The Centillion opinion is a guide for divining the necessary “control” of an accused system

running software on a front- and back-end. In Centillion, the Federal Circuit considered asserted

system claims and determined that the defendant, Qwest, did not exercise sufficient control over 

the accused system despite owning and operating all the back-end components. Yet Qwest’s

customers, who only bring the front-end hardware, did exercise sufficient control. The accused

system included two parts: Qwest’s back-end systems and front-end client applications that

Qwest’s customers could install on their personal computer. Centillion, 631 F.3d at 1281. The

accused products provided two different modes of operations. First, Qwest offered an “ondemand” operation in which a customer could create a query with “particular and specified

information” that the Qwest back-end system processes to provide a result for the customer to

download. Id. at 1285. Second, Qwest offered a “standard” operation in which, after a customer

subscribes to receive monthly summary reports, Qwest’s back-end systems automatically creates

summary reports every month that the customer may download. Id.

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The Centillion panel determined that the customer controls the system and obtains a benefit 

from it in the on-demand operation: 

The customer controls the system by creating a query and

transmitting it to Qwest’s back-end. . . . This query causes the backend processing to act for its intended purpose to run a query and

return a result. The user may then download the result and perform

additional processing as required by the claim. If the user did not 

make the request, then the back-end processing would not be put 

into service. . . . It makes no difference that the back-end processing 

is physically possessed by Qwest.

Id.

It reached the same conclusion for the standard operation: 

By subscribing a single time, the user causes the back-end

processing to perform its function on a monthly basis. Like the ondemand operation, the back-end processing in normal operation is

performed in response to a customer demand. The difference though 

is that a single customer demand (the act of subscribing to the 

service) causes the back-end processing monthly. But in both modes

of operation, it is the customer initiated demand for the service

which causes the back-end system to generate the requisite reports.

This is “use” because, but for the customer’s actions, the entire

system would never have been put into service. This is sufficient

control over the system . . . and the customer clearly benefits from

this function. 

Id.

The Centillion panel rejected the theory that Qwest itself controls the system and obtains 

benefit from it. The discussion was brief: “While Qwest may make the back-end processing 

elements, it never ‘uses’ the entire claimed system because it never puts into service the personal 

computer data processing means. Supplying the software for the customer to use is not the same

as using the system.” Id. at 1286. 

Centillion’s effects in the software space are slowly percolating through district courts. For

example, in Acceleration Bay, the U.S. District Court for the District of Delaware concluded that

a defendant, Activision, did not “use” the accused system where Activision’s customers installed

Case 6:20-cv-00268-ADA Document 128 Filed 08/11/23 Page 25 of 32
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and executed Activision’s software on the customer’s own computer. 324 F. Supp. 3d at 483–84. 

The asserted claims were directed to “networks” or “channels” made up of “participants” and

“connections” between “participants.” Id. at 479. The plaintiff’s experts agreed that “participants”

are ultimately “application programs”—namely, video games—executing on Activision’s

customers’ computers. Id. at 480. It was undisputed that “the customer must install Activision’s 

software” on a computer, “execute it, and choose an online, multiplayer game mode with more

than 5 other participants to make and use the accused networks.” Id. at 481. Invoking Centillion, 

the Acceleration Bay court determined that Activision’s “exclusive ownership and control of the 

game software” did not “put the invention into service.” Id. at 482. Activision never used the entire

claimed system because “[n]o claimed system can be put into service until multiple [Activision]

customers install the software and ‘execut[e] [it] on the client computers.’” Id.

In Free Stream Media Corp. v. Alphonso Inc., the U.S. District Court for the Northern

District of California concluded that the defendant, Alphonso, did not “use” the accused system

where Alphonso had supplied nothing to the end users whose devices must act to put the whole 

system in use. 366 F. Supp. 3d 1093, 1103 (N.D. Cal. 2018), rev’d on other grounds, 996 F.3d 

1355 (Fed. Cir. 2021). The asserted claims were directed to “[a] relevancy-matching server

communicatively coupled with a television and a mobile device through a network,” in which “the

relevancy-matching server is to cause a rendering of the targeted data to the user through the 

sandboxed application of the mobile device.” Id. at 1097. The “targeted data” of the accused

system was targeted advertising and the “mobile device” was, for example, a member of the 

public’s phone. The accused system operated such that the phone would send a bid request to a 

third party’s servers and that third party would then solicit bids from advertisers; the winning 

bidder would have their targeted advertisement transmitted for display on the phone. The accused

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infringer was merely an advertisement broker submitting bids to the third party; the accused

infringer did not “supply software installed on the mobile device that submits bid requests and has

no contracts with any mobile device maker or mobile device user.” Id. at 1099. The Free Stream

court concluded that Alphonso could not “use” the accused system because “one absolutely 

essential element remains entirely outside [Alphonse’s] control”: the phone’s issuance of a bid 

request. Id. at 1103. “Alphonso has nothing to do with the phone software or any of the conditions 

under which phones issue such requests.” Id. And the claimed “targeted data”/targeted advertising 

would “never be delivered to a consumer’s phone unless and until that phone issues a bid request.” 

Id. Therefore, under Centillion, Alphonso did not put the accused system into use.

This Court finds itself in accord with the Centillion and Acceleration Bay opinions in

concluding that PGA TOUR, though owning and operating the back-end components, does not put 

the accused system into service because it does not control the accused front-end components. In

Centillion, the accused infringer’s customers put the accused system into service by initiating, on 

the front-end components, a demand for service that caused back-end components to act out their

intended purpose: running a query and returning a result. 631 F.3d at 1285. Accordingly, the 

accused infringer did not control the accused system—the customers did. Id. Likewise, PGA

TOUR does not control the accused system because PGA TOUR’s patrons put the accused system

into service by initiating, on the “second portable device,” a demand for service that causes backend components, like the “production module,” to act out their intended purpose. 

More specifically, PGA TOUR’s patrons put portions of the accused system into service

by initiating, on their phones or laptops, a demand for service. The Asserted System Claims require

a “second portable device” that “selectively display[s] current statistics pertaining to the selected

hole and graphical representations of the transmitted input data according to an input from the 

Case 6:20-cv-00268-ADA Document 128 Filed 08/11/23 Page 27 of 32
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patron.” See, e.g., ’832 patent at 15:43–48 (emphasis added); ’552 patent at 15:43–48 (reciting

materially identical element). They also require a “processing module,” a back-end component, 

configured “to receive data requests over the wireless network simultaneously from a plurality of 

second portable devices.” ’832 patent at 15:65–67; ’552 patent at 15:64–66. The patron’s input on 

the second portable device/the second portable device’s requests for data constitute a demand for 

service. It is the patron’s input3 that causes the processing module, a back-end component, to act 

out an intended purpose: distributing “requested data to each second portable device over the 

wireless network based on received data requests from each second portable device.” ’832 patent

at 16:1–4; ’552 patent at 15:67–16:3. 

PGA TOUR patrons, therefore, control this portion of the accused system—not the PGA 

TOUR. It cannot be said that the PGA TOUR initiates a demand for service from patron devices

causing those devices to act out their intended purpose. The demand goes the other direction, 

towards the entity offering up its back-end components for service. The PGA TOUR thus does not 

put the patron devices into service. And, as in Centillion, it is of no moment that PGA TOUR

supplies “the software for the customer to use.” See 631 F.3d at 1286. 

Information Images disagrees, alleging that “PGA controls the content of the pgatour.com, 

the PGA TOUR App and TourCast platform that displays ShotLink data on the ‘second portable 

device.’” ECF No. 83 at 10. For this proposition, Information Images reproduces deposition 

testimony from PGA TOUR personnel in which they state that PGA TOUR operates TOURCast

and controls the ShotLink system. Id. Also excerpted is testimony from PGA TOUR personnel 

that data driving the PGA TOUR App and TOURCast comes from ShotLink. Id. The PGA TOUR

3 When using the PGA Tour Mobile Application at a PGA golf event, Information Images’ expert,

Dr. Valerdi, observed “data requests sent via the application as [he] navigated the application.” 

ECF No. 83-2 at 65. 

Case 6:20-cv-00268-ADA Document 128 Filed 08/11/23 Page 28 of 32
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does not dispute these contentions. ECF No. 90 at 4. Information Images’ arguments are, in this

Court’s judgment, unavailing. In Centillion, Qwest controlled the content—electronic billing

data—eventually displayed on its customers’ computers, yet Qwest did not, in the Federal Circuit

judgment, “use” the accused system because it did not control its customers’ computers. To be 

sure, Qwest’s customers could tailor the content Qwest sent for display on the customers’

computer. Centillion, 631 F.3d at 1285 (explaining how, in the on-demand operation, customers

could “seek[] particular and specific information”). PGA TOUR patrons likewise tailor what

information they see. After all, the Asserted System Claims require that the “second portable 

device” “selectively display current statistics pertaining to the selected hole and graphical

representations of the transmitted input data according to an input from the patron.” ’832 patent

at 15:43–48 (emphasis added); ’552 patent at 15:43–48 (reciting materially identical element).; see

also ’832 patent at 16:1–4 (requiring the processing module to distribute “requested data to each 

second portable device over the wireless network based on received data requests from each 

second portable device” (emphasis added); ’552 patent at 15:67–16:3 (same).

2. PGA TOUR Patrons’ “Use” Cannot Be Attributed to PGA TOUR

In Centillion, the Federal Circuit concluded, as this Court does here, that the accused 

infringer has not committed infringement through traditional “use” because the accused infringer 

has not put the entire accused system into service. Yet this Court, like the Centillion court, will not 

end its analysis there. The Centillion panel went on to consider whether it could attribute Qwest’s 

customers’ use of the front-end components to Qwest under a “vicarious liability” theory. 

Centillion, 631 F.3d at 1286. In doing so, the court heavily cited divided infringement caselaw 

restricted to the method-claim context. Id. (first citing BMC, 498 F.3d at 1373, then citing

Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318 (Fed. Cir. 2008), and then citing Cross Med.

Prods. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293 (Fed. Cir. 2005)). The Centillion court 

Case 6:20-cv-00268-ADA Document 128 Filed 08/11/23 Page 29 of 32
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concluded there was no vicarious liability because “Qwest in no way directs its customers to

perform nor do its customers act as its agents.” 631 F.3d at 1287 (“While Qwest provides software

and technical assistance, it is entirely the decision of the customer whether to install and operate

this software on its personal computer data processing means.”).

The Court views Centillion as endorsing the theory that divided infringement as a concept 

applies to infringement through the “use” of system claims just as it applies to method claims. 

Centillion supposes that vicarious liability may be used to attribute a customer’s use of a claimed 

component to the accused service provider. And the Centillion court separated its vicariousliability analysis from its analysis as to whether Qwest put the entire system into service. The en 

banc Federal Circuit’s Akamai V opinion then clarified and expanded how to attribute one entity’s 

conduct to another using vicarious liability principles.4 It did not, as far as this Court can tell, 

overturn Centillion5 or its application of principles of attribution. Accordingly, the Court finds it 

only appropriate to apply the Akamai V two-prong test in this context as well.6

4 The Akamai V court clarified, however, that unnamed previous opinions used the term “vicarious 

liability” loosely. 97 F.3d at 1022 n.2. “In the context of joint patent infringement, an alleged

infringer is not liable for a third party’s commission of infringement—rather, an alleged infringer 

is responsible for method steps performed by a third party.” Id.

5 See, e.g., United Servs. Auto. Ass’n v. Wells Fargo Bank, N.A., No. 2:18-CV-00366-JRG-RSP,

2019 U.S. Dist. LEXIS 217004, at *5 (E.D. Tex. Dec. 17, 2019) (“The Court finds that even in

light of Akamai, Centillion continues to be the appropriate standard under which to analyze

infringement of system claims.”); CenTrak, Inc. v. Sonitor Techs., Inc., Civ. Action No. 14-183-

RGA, 2017 U.S. Dist. LEXIS 139277, at *16 (D. Del. Aug. 30, 2017) (“There is no indication that

Centillion has been overruled or that its holding is no longer good law.”).

6 To be sure, Lyda v. CBS Corp. opined that “[o]ur cases have applied joint infringement to method 

claims and not system claims.” 838 F.3d 1331, 1339 (Fed. Cir. 2016). Yet the Lyda panel cannot 

overturn the Centillion opinion or its application of divided-infringement principles to system

claims. See Newell Cos., Inc. v. Kenney Mfg. Co., 864 F.2d 757, 765 (Fed. Cir. 1988) (“This Court 

has adopted the rule that prior decisions of a panel of the court are binding precedent on subsequent 

panels unless and until overturned [e]n banc.”). 

Case 6:20-cv-00268-ADA Document 128 Filed 08/11/23 Page 30 of 32
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The result of the Akamai V two-prong test in the context of the Asserted System Claims is 

the same as it was in the context of the Asserted Method Claims, laid out above. The Court is 

persuaded that there is not a genuine dispute of material fact that PGA TOUR conditions the receipt 

of a benefit—access to ShotLink data on a portable device—on its patrons’ use as part of the

accused system. Accordingly, the Court will GRANT PGA TOUR’s motion for summary 

judgment. 

3. Information Images Cannot Rely On Its Own Second Portable Devices

Information Images argues that the PGA TOUR does put the entire accused system into 

service when it provides its patrons, at on-site hospitality tents, a second portable device containing 

a “hospitality app.” ECF No. 83 at 11. 

The PGA TOUR clarifies that the “hospitality app” is software called “Tournament 

Tracker” that Information Images’ final infringement contentions do not accuse, and that 

Information Images’ expert’s infringement report does not include in its lists of “Accused 

Products.” ECF No. 90 at 5. Moreover, the PGA TOUR alleges that “none of the damages that 

Plaintiff is seeking relate to use of the hospitality app in the hospitality tents.” ECF No. 90 at 5. 

Thus, the Court finds that the hospitality app in the hospitality tents cannot save Information 

Images’ claim from summary judgment because Information Images’ final infringement 

contentions do not accuse it and Information Images has provided no expert analysis. 

4. PGA TOUR Does Not Induce Infringement

Because induced infringement under § 271(b) can only arise if direct infringement under § 

271(a) has occurred, Limelight Networks, 572 U.S. 915 at 917, the Court finds that PGA TOUR

cannot induce the infringement of the third parties who use the second portable devices under the 

Asserted System Claims.

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C. PGA TOUR’s Actions In Fulfilling Its Contractual Obligations To IMG Arena

Are Noninfringing As A Matter Of Law

Information Images is seeking a reasonable royalty on the fees that PGA TOUR receives 

under a contract with IMG Arena. Information Images, however, admits that this is not an 

infringement theory that it is asserting in this case. See ECF No. 83 at 2 (“the Court can deny this 

aspect of the motion because it is about damages, not infringement”). Because the Court finds that 

PGA TOUR is entitled to summary judgment of noninfringement as explained above (and 

therefore no damages), the Court finds that PGA TOUR is also entitled to summary judgment of 

noninfringement in connection with any allegation of infringement with the IMG Arena contract. 

IV. CONCLUSION

For the foregoing reasons, IT IS ORDERED that PGA TOUR’s Motion for Summary 

Judgment, ECF No. 74, is GRANTED. 

SIGNED this 2nd day of August, 2023. 

ALAN D ALBRIGHT

UNITED STATES DISTRICT JUDGE

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