NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

04-1318

PHONOMETRICS, INC., Plaintiff-Appellant,

v. HOSPITALITY INTERNATIONAL, INC., Defendant-Appellee.

__________________________

DECIDED: January 12, 2005

__________________________ Before MICHEL, Chief Judge , RADER, and LINN, Circuit Judges

. LINN, Circuit Judge. Phonometrics, Inc. (“Phonometrics”) appeals from the United States District Court for the Southern District of Florida’s (“d istrict court”) grant of summary judgment of non-infringement in favor of Hospitality International, Inc. (“Hospitality”). Phonometrics, Inc. v. Hospitality Int’l, Inc. , No. 94-7107-CIV (S.D. Fla. Mar. 3, 2004). Because Phonometrics has not shown a genuine dispute of material fact and has not shown that the district court abused its discretion in denying a stay for further discovery, we affirm

. Phonometrics filed suit against Hospit ality on November 17, 1994 alleging infringement of U.S. Pat ent No. 3,769,463 (“the ’463 patent ”) relating to an apparatus for automatically computing and recording t he cost of a long-distance telephone call.The ’463 patent expired on October 30, 1990, thus leaving onl y the period between November 17, 1988 and October 30, 1990 at iss ue in the litigation due to the six year statute of limitations in patent cases. 35 U.S.C. § 286 (2000) (precluding recovery for infringement more than six years prior to the filing of the complaint or counterclaim). During this time period, Hospit ality franchised hotels but did not own, lease, operate, or manage any hotels or motels. Phonometrics’ amended complaint contains no allegations with respect to franchisees of Hospitality. The ’463 patent contains a single independent claim, claim 1. Our prior decision
in Intellicall, Inc. v. Phonometrics, Inc. , 952 F.2d 1384, 1387-88 (Fed. Cir. 1992), held that the “digital display” recited in claim 1 of the ’463 patent did not encompass machine readable information, but instead required a visual display. Similarly, our decision in Phonometrics, Inc. v. Northern Telecom Inc. , 133 F.3d 1459, 1464-67 (Fed. Cir. 1998), construed claim 1 of the ’463 patent to require a “call co st register means which functions both to provide accurate cost in formation while the call progresses as well as total cost information once the call has ended.” On January 16, 2004, Hospitality mo ved for summary judgment of noninfringement based in part on th ree statements. In a separate case assigned to the same district judge, Phonometrics’ CEO, Lawrenc e Reich, testified t hat he was unaware of any hotel using a telephone system that disp lays the cost of a l ong-distance call as it was taking place. Similarly, Phonometrics’ counsel stated, in open court in another case involving the ’463 patent, that the def endants did not use the claimed invention. Additionally, Hospitality’s vice president and most knowledgeable employee regarding such matters testified under oath that he wa s not aware of any such telephone system

04-1318 2in any of Hospitality’s franchisees’ hotels or motels. On March 3, 2004, the district court granted Hospitality’s motion for summary judgment of non-infr ingement and entered final judgment the same day. Phonometrics timely appealed. We hav e jurisdiction under 28 U.S.C. § 1295(a)(1). ANALYSIS When reviewing summary judgment motions , we apply the law of the regional circuit. Chamberlain Group, Inc. v. Skylink Techs., Inc. , 381 F.3d 1178, 1191 (Fed. Cir. 2004). We review the grant of summary judgment de novo , reapplying the summary judgment standard that the di strict court employed. O’Ferrell v. United States , 253 F.3d 1257, 1265 (11th Cir. 2001). Because questions regarding the scope or extent of discovery are not generally unique to patent law, we apply the la w of the regional circuit. See Dorf & Stanton Communications, Inc. v. Molson Breweries , 100 F.3d 919, 922 (Fed. Cir. 1996) (“ Because an order compelling discove ry is not unique to patent law, we agree that Second Circuit law must be considered for t he proper standard of review.”) . In that regard, the El eventh Circuit applies an abus e of discretion standard to the grant or denial of a continuance for discovery. In re Piper Aircraft Corp. , 362 F.3d 736, 738 (11th Cir. 2004). On appeal, Phonometrics first argues that t he district court abused its discretion in denying a continuance under Rule 56(f) for Phonometrics to conduct discovery into the types of phone systems used by Hospitalit y franchisees. Hospitality responds by arguing: (1) that Phonomet rics abandoned or waived this argument by failing to support its contention under Federal Rule of Appellate Procedure 28(a)(9 )(A); (2) that the district

04-1318 3court did not abuse its discretion becaus e Phonometrics made no effort to depose Shuler or any Rule 30(b)(6) r epresentative of Hospitality prior to the motion for summary judgment; (3) that the district court did not abuse its discretion because Phonometrics’ admissions established that there was no in fringement; and (4) that even if further discovery established that a franchisee had infringed, Hospitality would not be liable for that infringement. Regarding this issue, the district court sa id, “The Court declines to reopen discovery for this purpose. This action was filed in 1994, and Plaintiff has had ample time to serve discovery requests on Defendant. Furthermore, Plaintiff’s CEO has admitted that he is unaw are of any hotel that uses te lephone equipment that infringes the ’463 Patent.” Phonometrics, Inc. v. Ho spitality Int’l, Inc. , No. 94-7107-CIV, slip op. at 7 (S.D. Fla. Mar. 3, 2004). Rule 56(f) governs additional discovery in the face of a motion for summary judgment. That rule states: Should it appear from the affidavit s of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. Fed. R. Civ. P. 56(f). Phonom etrics sought a continuance to allow it to depose Shuler to determine whether Hospitality used equipment t hat it regarded as infringing. It appears from the docket sheet that Phonometrics had around two years to conduct discovery in this case. No discovery requests or interr ogatories are in the record. It is unclear whether Phonometrics conducted any discovery whatsoever during that time. Further, although Phonometrics alleges that Hospitalit y is the sole party with knowledge of infringement, that contention is frivolous for numerous reasons. First, during the ten04-1318 4year pendency of this lawsuit, even during t he periods when the lawsuit was stayed, Phonometrics was free to stay in hotel rooms of Hospitalit y franchisees to determine whether long-distance call cost was displayed on a digital display as required by claim 1 of the ’463 patent. Second, during the approximately two years of live pendency of the lawsuit, Phonometrics was free to issue subpoenas to franchisees of Hospitality to determine what types of phone systems were in use and whether Hospitality was responsible for such use. Third, the mo st obvious, Phonometrics could have deposed Shuler or noticed a Rule 30(b)(6) depositi on to determine what Hospitality knew. Apparently, Phonometrics did none of these things, nor did it conduct any other discovery that might have generated evi dence on this issue. Phonometrics now complains that Hospitality failed to comply with its Rule 26 mandatory disclosures. While Phonometrics filed a motion to compel on this basis before the district court while the case was stayed, it is unclear why it waited until 2001 to do so. Phonometrics has shown no abuse of discretion in t he district court’s denial of it s motion for a continuance. Because we conclude that the district court did not abuse its discreti on, there is no need to reach Hospitality’s remaining arguments. Phonometrics next argues that the distri ct court erred in granting summary judgment in the absence of an affidavit in t he form required by Rule 56(c) showing that there was no genuine issue of mate rial fact as to infringem ent. In summary fashion, Phonometrics states, “The Affidavit of Shuler fails to comply with Rule 56(c), and cannot support the grant of the motion. ” Phonometrics’ statement of the issue provides a little more guidance in its indication t hat the affidavit failed to show “affirmatively that there is no genuine issue of material fact as to w hether Hospitality infringed claim 1 of the

04-1318 5patent.” Thus, Phonometrics apparently contests Hospitality’s initial showing. However, even in the context of a motion for summary judgment, Hospitality had no evidentiary burden. It merely needed to show that P honometrics had no evidenc e of infringement to show that there was no genuine dispute of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (“[W] e find no express or impli ed requirement in Rule 56 that the moving party support its motion wit h affidavits or other similar materials negating the opponent’s claim.”). Hospitality provi ded an affidavit stating that it neither owned nor controlled hotels or motels during t he relevant time perio d and that it was unaware of any of its franchi sees using infringing telephone systems. Thus, Hospitality met its required initial sho wing. Given that Phonometrics has provided nothing but argument and speculation in response, Phonometrics’ argument must fail. Phonometrics contends that the district cour t erred in taking judicial notice of facts in another case as proof that Hospitality did not infri nge. The district court cited Federal Rule of Evidence 201(b) in taking j udicial notice of Phonometrics’ CEO’s and counsel’s statements that it was not aware of any infringing phone systems. Phonometrics contests the us e of Rule 201(b), arguing t hat Rule 201(b) has no application to the deposition of a Phonometrics’ witness in other cases or to the oral argument of counsel for Phonometrics in other cases. Federal Rule of Evidence 201
states: (a) Scope of rule. This rule governs only judicial notice of adjudicative facts. (b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial cour t or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

04-1318 6Phonometrics argues that Rule 201(a) limits the applicat ion of Rule 201(b) to “adjudicative facts,” which it argues does not include infringement in this case. Phonometrics reasons that its CEO and its counsel are not the proper sources for determining whether Hospitality infringes and cannot establish non-infringement. Thus, Phonometrics concludes that the district court erred in conc luding that non-infringement is indisputable as required by the Rule based upon their st atements. Phonometrics, however, misses the point. The district c ourt did not conclude that non-infringement was indisputable from the statem ents. Rather, the district court merely recognized that the transcripts of prior court proceedings were sources “whose accuracy cannot reasonably be questioned.” Fed. R. Evid . 201(b). Indeed, Phonometrics does not question the accuracy of the statements. Phonometrics’ argument that evidence rela ted to infringement could not come from its own employees and counsel misses the point. Its own statements reflect that it has no evidence of infringement. The im portant question in a summary judgment motion is whether there is a disputed issue of material fact. Phonometrics must have something more than conjecture and speculati on to create a disputed issue of material fact. Thus, Phonometrics has shown no error in the district court’s taking judicial notice of the statements, nor has it s hown error in the district cour t’s use of those statements in granting summary judgment to Hospitality. Finally, Phonometrics argues that the district cour t violated its Seventh Amendment right to a jury tria l on infringement. Phonometrics presented this issue in its brief but offered no substant ive argument on the point other than the following sentence: “The Seventh Amendment guarantees the right to a trial by jury.” Phonometrics’

04-1318 7argument has absolutely no merit because t he grant of summary judgment does not violate the Seventh Amendment. See Fidelity & Deposit Co. of Md. v. United States , 187 U.S. 315, 319-21 (1902). Because the district court did not abus e its discretion in denying Phonometrics’ motion for a continuance and did not err in holding that there wa s no genuine issue of material fact precluding summary j udgment of non-infringement, we affirm.

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