United States Court of Appeals 

for the Federal Circuit ______________________ 

BARON SERVICES, INC.,

Plaintiff-Appellant,

v.

MEDIA WEATHER INNOVATIONS LLC,

Defendant-Appellee.

______________________ 

2012-1285, -1443

______________________ 

Appeal from the United States District Court for the 

Northern District of Alabama in No. 11-CV-1606, Judge 

Inge Prytz Johnson.

______________________ 

Decided: May 7, 2013

______________________ 

JEFFREY T. KELLY, Lanier Ford Shaver & Payne, PC, 

of Huntsville, Alabama, argued for plaintiff-appellant. 

With him on the brief was J.R. BROOKS. 

STUART N. BENNETT, Jones & Keller, P.C., of Denver, 

Colorado, argued for defendant-appellee. With him on the 

brief was PERRY L. GLANTZ, of Greenwood Village, Colorado. 

______________________ 
2 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC

Before DYK, PROST, and REYNA, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST. 

Dissenting opinion filed by Circuit Judge REYNA. 

PROST, Circuit Judge. 

Baron Services, Inc., (“Baron”) appeals the orders of 

the United States District Court for the Northern District 

of Alabama awarding summary judgment of noninfringement and attorney’s fees to Media Weather Innovations, 

LLC (“MWI”). Because the district court’s summary 

judgment order was premature, we vacate the court’s 

summary judgment and award of attorney’s fees and 

remand for further proceedings consistent with this 

opinion. 

I. BACKGROUND

Baron owns U.S. Patent No. 6,490,525 (“’525 patent”), 

which “generally relates to systems and methods for 

weather reporting and forecasting, and more particularly, 

to computerized systems and methods for reporting and 

forecasting real-time weather information.” ’525 patent 

col. 1 ll. 19-22. In May 2011, Baron filed a civil action 

alleging that MWI’s WeatherCall programs infringed the 

’525 patent. The schedule for the case was set by the 

district court in an order that, among other deadlines, set 

discovery to end on July 13, 2012. The order did not, 

however, set a timetable for Markman proceedings or for

exchanging invalidity or infringement contentions.1

1 Baron later informed the district court that it believed at the time that the parties would work out the 

deadlines for those additional terms while proceeding 

with fact discovery. Transcript of Summary Judgment 

Hearing, Jan. 24, 2012, District Court Docket Entry 

(“D.E.”) 47 at 65-75. 

 
 BARON SERVICES, INC . v. MEDIA WEATHER INNOVA TIONS LLC 3

About two months after filing its complaint, Baron 

served MWI with a request for production of the source 

code used by the WeatherCall products. Instead of producing the requested code, however, MWI moved the 

court for a protective order.2 MWI asserted that, 

“[b]ecause the Patent-in-Suit claims no computer-codebased invention, MWI’s computer source code is not even 

potentially relevant to this case.” J.A. 126. In support of 

its motion, MWI submitted affidavits from Michael Fannin, an employee of MWI, and from Valerie Ritterbusch, 

the President of MWI and a former employee of Baron. 

Those affidavits explained that the “means” by which the 

accused products send information from National Weather Service (“NWS”) alerts to MWI’s customers is “accomplished through computer source code,” but there are 

“numerous other terms and concepts in the 525 Patent . . . which also distinguish [MWI’s] Computer Source 

Code . . . from the 525 Patent.” J.A 138, 141. In response 

to MWI’s motion, Baron explained that the ’525 patent 

specifically discloses an invention that uses a special 

purpose computer to execute “computer code” and that the 

“logic” recited in several claims “IS the source code.” J.A. 

151-52; see ’525 patent col. 5 ll. 4-5. According to Baron, 

MWI’s source code was therefore relevant to the asserted 

method, apparatus, and system claims because MWI’s 

affiants clearly established that MWI’s accused products 

were implemented through a computer by MWI’s source 

code. 

On October 4, 2011, the district court granted MWI’s 

motion to protect its source code from disclosure “without 

prejudice to [Baron]’s right to seek said information at a 

more appropriate time in the litigation.” J.A. 166. The 

2 MWI’s motion came after the court entered a 

stipulated protective order that permitted the parties to 

protect the confidentiality of discovery productions. 

 
4 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC

court held that it could not determine “if the source code 

is relevant to the issues in this action” because Baron 

“failed to plead in what manner [MWI] is alleged to be 

infringing.” J.A. 164. 

After the court’s decision, the parties continued to proceed with discovery. Relevant here, Baron noticed depositions of Ritterbusch and Fannin,3 and MWI served Baron 

with numerous written discovery requests. Included 

among those requests were demands for Baron to define 

certain terms in the ’525 patent and to detail how MWI’s 

products used or incorporated the invention claimed in 

the ’525 patent. 

On the day Baron’s responses to MWI’s discovery requests were due, November 21, 2011, Baron moved the 

district court to “improve the efficiency and orderliness of 

th[e] case” by setting a Markman hearing and adopting 

the Patent Rules that were in use by another judge in the 

Northern District of Alabama. J.A. 172. With its motion, 

Baron included a proposed schedule detailing a timetable 

for disclosures and joint filings relating to infringement 

contentions, validity contentions, and Markman proceedings. In addition, Baron moved the court to enter “an 

order staying Baron’s obligations to respond to certain of 

MWI’s Discovery Requests, as explicitly set forth in the 

Patent Rules, until the applicable dates set forth in [Baron’s proposed schedule].” J.A. 174. 

On the same day Baron filed its motion, it served timely responses to MWI’s written discovery requests. In 

3 Although noticed on November 1, 2011, MWI appears to have not agreed to move forward with the depositions until January 7, 2012. See D.E. 38-5 at 2; 40-7 at 3. 

It appears from the record that those depositions were 

scheduled to take place in mid-February 2012. D.E. 40-7 

at 1.

 
 BARON SERVICES, INC . v. MEDIA WEATHER INNOVA TIONS LLC 5

those answers, Baron objected to defining claim terms as 

premature in light of the schedule that Baron proposed 

for the court to adopt.4 As promised in those responses, 

Baron subsequently served its “Disclosure of Asserted 

Claims and Preliminary Infringement Contentions” on 

December 8, 2011. Those contentions detailed how Baron 

believed MWI’s products met the limitations of each 

asserted claim. Baron then renewed its request to MWI 

for access to source code. 

On December 27, 2011, MWI filed a motion for summary judgment of noninfringement. MWI argued that

undisputed facts proved that it did not infringe the ’525 

patent. According to MWI, “[t]he only service that MWI 

offers its subscribers is to forward National Weather 

Service warnings,” “Baron admits that warnings issued by 

the National Weather Service do not infringe any claim of 

the ‘525 Patent,” and “Baron has therefore admitted that 

MWI’s services do not infringe any claim of the ‘525 

Patent.” J.A. 470-71. In support of its motion, MWI 

submitted a new affidavit by Valerie Ritterbusch in which 

she explained why the accused products did not satisfy 

the limitations of the asserted claims given her understanding of certain claim terms in the ’525 patent. 

Baron filed a timely response to MWI’s motion for 

summary judgment and provided the district court with 

several documents produced by MWI during discovery. 

Citing Federal Rule of Civil Procedure 56(d), Baron ar4 Baron also included the following response to one 

of MWI’s requests for admission. “Baron is without 

sufficient information to know how the Court will define, 

if appropriate, ‘storm profile’ or ‘National Weather Service 

warning’ . . . . Baron admits that information from the 

National Weather Service alone, including a ‘warning’, 

does not infringe the ’525 Patent.” J.A. 380.

 
6 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC

gued that summary judgment was premature because the 

court had not yet construed the terms of the ’525 patent, 

because it had not yet had the opportunity to review 

MWI’s relevant source code, and because it had yet to 

depose Ritterbusch and Fannin. Pointing to a provisional 

patent application filed by MWI for the accused products, 

Baron also argued that there was a genuine dispute 

concerning the material fact whether the accused products “analyzed” weather data from the NWS. According 

to Baron, the description of MWI’s WeatherCall programs 

in the provisional application contradicted the statements 

in the affidavits submitted by MWI. 

After responding to MWI’s motion for summary judgment, Baron filed a motion to compel production of MWI’s

source code. Baron asserted its infringement contentions 

clearly demonstrated the relevancy of the code, but MWI 

continued to refuse repeated requests to produce it. 

Without the source code, Baron argued, “[it] and the 

Court will simply have to rely on MWI’s word as to how 

its products function without any ability to test, through 

expert review of the source code, whether MWI’s statements are accurate or inaccurate.” J.A. 755. 

On January 24, 2012, the court held a hearing to address MWI’s summary judgment motion and Baron’s 

outstanding motions. At the hearing, Baron reiterated its 

argument that summary judgment was premature and 

unwarranted. Baron discussed the details of the MWI’s 

provisional patent application, including how it believed 

the document revealed that MWI’s WeatherCall products 

analyze “the [NWS] alert type, time of the alert, and the 

geographic area affected by the alert . . . in the same way 

that is taught by the patent.” D.E. 47 at 19. Baron also 

explained how an infringement analysis would turn on 

the construction of key terms in the asserted claims: 

“[MWI] say[s] in their response, well, we don’t use a 

geographic area, but they say right here [in its provisional 

patent application] that they do use a geographic area,”
 BARON SERVICES, INC . v. MEDIA WEATHER INNOVA TIONS LLC 7

id.; “this [provisional patent application] says that their 

product is analyzed by the system, . . . they said that the 

word ‘analysis’ here doesn’t mean the same as the word 

‘analysis’ in our patent,” id. at 16; “[t]hey say [an alert]’s 

not meteorological data[,] I don’t know how you say a 

weather alert is not meteorological data,” id. at 15. 

At the hearing, Baron also summarized its argument 

why summary judgment was premature.

[T]he documents . . . have shown . . . that MWI 

engages in significant processing and analysis of 

the data contained in the [National Weather Service] warnings . . . . [W]e concede just getting information from the National Weather Service and 

just passing it along without analysis, without 

manipulation, without doing any of the things 

that they say they do . . . would not be an infringement of the patent. But they say they do 

these other things. . . . [T]he affidavit conflicts 

with it . . . . That being the case, . . . we should 

have an opportunity to test what is in the affidavit 

and before the Court grants summary judgment.

Id. 23. Baron specifically highlighted the importance of 

MWI’s source code to its opposition to summary judgment. 

There’s a source code out there that tells what 

they do. . . . [W]hat is said in the affidavit is in 

conflict with what is said right here in [the provisional patent application] . . . [a]nd it is also not 

tested by us in order to determine whether it’s exactly correct or not, and we have asked to do that. 

In order to be able to compare the product or service to the properly construed claims, that’s what 

we asked the Court for an opportunity to do.

Id. at 20. The district court, however, looked to the briefing and affidavits filed by MWI and summarized Baron’s 
8 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC

argument as: “I don’t believe what they say; I want to go 

in and dig deeper and see if they are lying.” Id. at 17. 

Throughout the hearing, MWI’s arguments also centered on disputed claim terms and the relevancy of the 

source code. “[W]e have a source code that enables us to 

analyze—and I will use that term ‘analyze’—to reach the 

geographic latitudes and longitudes of a NWS warning 

and then compare that polygon with addresses that we 

have for our subscribers.” Id. at 36. “[W]e find out the 

type of alert, we find out the time, and we find out the 

geographical area. That’s what we mean by analyze.” Id.

at 51. But “we do it arithmetically. There’s nothing 

special about it. We do it by virtue of math. That’s why 

our source code is irrelevant.” Id. at 43-44. And, as it 

stated, MWI did not infringe because “the patent claims 

that it has a logic . . . designed to do one thing and one 

thing only, and that’s to determine . . . whether a contact

[sic] identifier identifies a remote unit that is located 

within the area of a weather alert.”5 Id. at 36. “[Our 

system] doesn’t have a logic to do that.” Id. at 38. 

On February 1, 2012, the court granted MWI’s motion 

for summary judgment of noninfringement and found 

Baron’s outstanding motions to be moot. Disposing of 

Baron’s petition under Rule 56(d), the court found that 

Baron never “ask[ed] for more time to complete discovery” 

and failed to “assert it could not prosecute this action 

without further discovery.” J.A. 29. Accordingly, “left 

5 The dissent appears to adopt that view of how infringement of the asserted claims must be determined. 

Dissent at 3. It finds relevant—as does MWI—that users 

of MWI’s systems provide a “self-designated location” for 

weather alerts. Id. Without proper claim construction, 

however, it seems difficult to know whether that distinction is important. 

 
 BARON SERVICES, INC . v. MEDIA WEATHER INNOVA TIONS LLC 9

solely with [MWI]’s affidavit evidence,” the court concluded that Baron’s opposition to summary judgment consisted only of asserting that MWI “is lying.” J.A. 15, 28. In 

the court’s view, MWI had therefore “submitted unrefuted 

evidence that its service does not perform numerous steps

of the plaintiff’s patent,” namely, MWI’s evidence demonstrated that “it does not use a geographical area, region, 

cell, or grid to determine areas to be altered.” J.A. 28. 

After reaching its conclusion on infringement, the 

court held that claim construction was unnecessary, even 

though Baron “obstinately insisted” otherwise. Its “duty,” 

as the court saw it, was “to construe only disputed claim 

terms.” J.A. 32. The court reasoned that Baron did “not 

dispute the meaning of any terms” because it had “refused” to “define a variety of terms through discovery” 

requested by MWI. J.A. 30-31. Therefore, despite the 

parties’ differing positions on the definition of several 

terms in the asserted claims and Baron’s motion for a 

Markman hearing, the court declined to construe any 

terms during its infringement analysis.

Shortly after prevailing on summary judgment, MWI 

filed a motion for attorney’s fees pursuant to 35 U.S.C. 

§ 285, which the court also granted. In April 2012, the 

court entered judgment awarding MWI $243,757.45 for 

attorney’s fees. 

Baron timely appealed the grant of summary judgment of noninfringement and the award of legal fees. We 

have jurisdiction over this appeal pursuant to 28 U.S.C. 

§ 1295(a)(1).

II. DISCUSSION

Under Federal Rule of Civil Procedure 56(d), a party 

opposing a summary judgment motion may request that a 

district court delay ruling on the motion in order to obtain 

additional discovery without which “it cannot present 

facts essential to justify its opposition.” Fed. R. Civ. P. 
10 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC

56(d).6 The Eleventh Circuit has explained that “[t]he 

whole purpose of discovery in a case in which a motion for 

summary judgment is filed is to give the opposing party 

an opportunity to discover as many facts as are available 

and he considers essential to enable him to determine 

whether he can honestly file opposing affidavits.” Snook 

v. Trust Co. of Ga. Bank of Savannah, N.A., 859 F.2d 865, 

870 (11th Cir. 1988) (quoting Parrish v. Bd. of Com’rs of 

Ala. State Bar, 533 F.2d 942, 948 (5th Cir. 1976)). Accordingly, district courts in the Eleventh Circuit should grant 

requests under Rule 56(d) “when the party opposing the 

[summary judgment] motion has been unable to obtain 

responses to his discovery requests” and the discovery 

sought would be essential to opposing summary judgment 

and “relevant to the issues presented by the motion for 

summary judgment.” Snook, 859 F.2d at 870 (citation 

omitted); see Porter v. Ray, 461 F.3d 1315, 1324 (11th Cir. 

2006). 

Here, Baron requested that the district court delay ruling on MWI’s summary judgment motion until it had to 

the opportunity to examine MWI’s source code and to 

depose Ritterbusch and Fannin.7 It adequately explained 

6 We apply the law of the regional circuit when reviewing the court’s decision under Rule 56(d). Exigent 

Tech., Inc. v. Atrana Solutions, Inc., 442 F.3d 1301, 1310 

(Fed. Cir. 2006). In the Eleventh Circuit, a district court’s 

denial of such a request may be overturned if the decision 

was an abuse of discretion. Carmical v. Bell Helicopter 

Textron, Inc., 117 F.3d 490, 493 (11th Cir. 1997).

7 The dissent correctly notes that we do not reach 

whether summary judgment was “supported by the record 

evidence.” Dissent at 6. That is not because, as the 

dissent contends, we are trying to present “a highly 

selective, one-sided perspective of the record.” Id. That is 

inaccurate. We simply decline to repeat the error of the 

 
 BARON SERVICES, INC . v. MEDIA WEATHER INNOVA TIONS LLC 11

how that additional discovery was relevant and essential 

for its opposition to MWI’s summary judgment motion.8 

Baron detailed in its briefs to the district court and during 

the summary judgment hearing how MWI’s source code 

could show that the accused devices met several of the 

limitations of the asserted claims. As shown in its infringement contentions, Baron asserted that certain 

features of the accused products met the “logic,” “analyze,”

and “computer” limitations found in some of the asserted 

claims. Per the Ritterbusch and Fannin affidavits, those 

features are enabled by MWI’s source code.9 MWI assertdistrict court by prematurely considering whether the 

incomplete record supports summary judgment.

8 Baron did not file the affidavit normally required 

by Rule 56(d). However, an affidavit or declaration is not 

required in the Eleventh Circuit. Snook, 859 F.3d at 871 

(“In this Circuit, a party opposing a motion for summary 

judgment need not file an affidavit pursuant to Rule 

56([d]) . . . in order to invoke the protection of that Rule.”). 

9 The dissent states that Baron has no “entitlement 

to th[e] discovery” of source code because it failed to 

“demonstrate good cause as to why the source code was 

relevant to the alleged infringement.” Dissent at 9. But 

“good cause” is required to be shown under Rule 26(b)(1) 

only if seeking broad discovery of “matter[s] relevant to 

the subject matter involved in the action.” Fed. R. Civ. P. 

26(b)(1) (emphasis added); see, e.g., Fed. R. Civ. P. 26, 

Advisory Committee Notes, 2000 Amendment; In re 

Subpoena to Witzel, 531 F.3d 113, 118 (1st Cir. 2008). 

Baron seeks discovery of the source code as relevant to its 

claims; Baron’s burden under Rule 26(b)(1) is not good 

cause. It only has to show that the source code is relevant 

and likely to lead to admissible evidence—which it has

clearly demonstrated. See id. Under the agreed protective order, MWI can require that only Baron’s attorneys 

 
12 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC

ed, though, that those features are not enabled by the 

source code in an infringing manner. Examining the 

source code would have enabled Baron to determine if 

MWI’s noninfringement position was correct—which 

Baron believed to not be the case given the disclosures in 

the provisional patent application produced by MWI 

regarding how the accused products might analyze data 

from NWS warnings with logic implemented on a computer. The opportunity for the reasonable chance to disprove 

MWI’s position on noninfringement was relevant and 

essential to Baron’s opposition of MWI’s motion for summary judgment.10

Baron’s opportunity to depose Ritterbusch and Fannin

was equally important to Baron’s ability to adequately 

oppose summary judgment. As demonstrated by their 

affidavits, Ritterbusch and Fannin both possessed personal knowledge of the functionality of the accused products. Their affidavits were MWI’s primary evidence to 

support its motion for summary judgment, and the statements made in them were accepted as true by the district 

have access to the code. There is no basis to further 

withhold the discovery of the source code.

10 MWI asserts that its source code was not essential—or even relevant—to show infringement because the 

outputs of MWI’s accused products, to which Baron had 

ready access, were enough to definitively prove that MWI 

did not infringe the ’525 patent. We have no doubt that 

the output of a system may prove noninfringement in 

some cases. But MWI fails to show how the output of 

MWI’s WeatherCall programs alone proves that the 

accused products lack an essential limitation in each and 

every asserted claim of the ’525 patent. And MWI does 

not explain how it would make that showing without 

construction of several key terms in the asserted claims.

 
 BARON SERVICES, INC . v. MEDIA WEATHER INNOVA TIONS LLC 13

court. Deposing Ritterbusch and Fannin would have 

provided Baron its principal opportunity to directly challenge the veracity of the statements made in their affidavits.

Therefore, under the circumstances here, it was improper for the district court to have refused Baron’s 

request to delay ruling on MWI’s summary judgment 

motion until Baron had the opportunity to access MWI’s 

source code and depose Ritterbusch and Fannin. See

Metro. Life Ins. Co. v. Bancorp Servs., L.L.C., 527 F.3d 

1330, 1338 (Fed. Cir. 2008) (reversing district court 

refusal to grant Rule 56(d) motion when discovery sought 

was the principal opportunity to contradict statements in 

declarations that a district court treated as truthful and 

dispositive); see also Wideman v. Shallowford Cmty. 

Hosp., Inc., 826 F.2d 1030, 1037 n.11 (11th Cir. 1987) 

(“[T]he proceedings in the district court took a bizarre 

turn when the court accepted the affidavits . . . in support 

of the defendants’ motion for summary judgment, yet 

refused to permit the plaintiffs to depose those same 

individuals. This is not a proper practice.”); cf. Exigent 

Tech. v. Atrana Solutions, 442 F.3d 1301 (Fed. Cir. 2006)

(applying Eleventh Circuit law and affirming a denial of a 

Rule 56(d) motion because it was made after the close of 

discovery and after the plaintiff had already obtained two 

extensions of time to respond to a summary judgment 

motion). We do not agree with the district court that 

Baron “[a]t no point . . . assert[ed] it could not prosecute 

this action without further discovery” and “did not ask for 

more time to complete discovery.” J.A. 29 n.15. In its 

brief in opposition to summary judgment and at the 

summary judgment hearing, Baron informed the district 

court that summary judgment would be premature under 

Rule 56(d) because it had yet to obtain MWI’s source code 

and to depose Ritterbusch and Fannin. Baron also appears to have diligently pursued that discovery. It made 

repeated requests to MWI for the source code and resorted 
14 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC

to motions practice when the parties were at an impasse. 

And it noticed depositions of Ritterbusch and Fannin 

almost two months before MWI filed its motion for summary judgment—depositions that it appears would have 

occurred except for the district court’s summary judgment 

ruling.11 The district court abused its discretion by denying Baron’s request under Rule 56(d) to delay ruling on 

MWI’s summary judgment motion.12

III. CONCLUSION

The district court prematurely granted summary 

judgment of noninfringement to MWI. We therefore 

vacate the district court’s summary judgment order, 

including its dismissal of Baron’s outstanding motions as 

moot, and the district court’s order and judgment awarding attorney’s fees to MWI. We remand this case to the 

district court for further proceedings consistent with this 

11 The dissent claims that Baron should not be afforded the opportunity to depose Ritterbusch and Fannin 

because it made a “strategic choice” to delay those depositions until after the summary judgment hearing. Dissent 

at 10. Baron noticed those depositions months before 

summary judgment briefing started. MWI finally offered 

Ritterbusch and Fannin the same day summary judgment 

briefing concluded and with notice of only a few business 

days. There was no “strategic choice” by Baron to reschedule the depositions for a later date (that still fell 

months before the close of discovery) because of “the short 

notice and other scheduling conflicts.” D.E. 40-7 at 2. 

12 The dissent asserts that there is no cause to permit additional discovery because Baron should have 

sought “protective relief from the court” to enable it to 

take discovery before summary judgment. Dissent at 10. 

But the dissent ignores the relief Baron sought that is the 

very subject of our opinion: Baron’s Rule 56(d) request. 

 
 BARON SERVICES, INC . v. MEDIA WEATHER INNOVA TIONS LLC 15

opinion. In remanding for further proceedings, we express no opinion as to whether Baron has a meritorious 

cause of action; after claim construction and further 

discovery, it may be that the cause of action is nonmeritorious. But Baron is entitled to the opportunity to 

prove otherwise under a correct claim construction with 

appropriately limited discovery.13

13 Baron argues that it also produced adequate evidence of infringement to survive summary judgment. 

Given our holding, we need not reach the merits of the 

district court’s ruling on infringement. However, on 

remand, we note that the district court should not avoid 

construing relevant terms in the asserted claims as part 

of its infringement analysis. A determination of patent 

infringement, even on summary judgment, requires a twostep analysis, the first of which is claim construction. 

Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.

Cir. 1998) (en banc). 

The importance of claim construction is quite evident 

here. The infringement analysis in this case may very 

well turn on the definition and scope of terms in the 

asserted claims. As made clear during the summary 

judgment hearing, the parties dispute the scope of many 

claim terms and rely on their own understandings of 

those terms to support their infringement or noninfringement theories. And they also look to seemingly 

conflicting intrinsic and extrinsic evidence to support 

their interpretations of relevant claim terms. Claim 

construction would resolve the disputes between the 

parties and provide the legal basis for determining infringement. 

In addition, after construing the terms of the asserted 

claims, the court can then also properly decide the relevance of whatever admissions related to noninfringement 

 
16 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC

VACATED AND REMANDED

COSTS

Each party shall bear their own costs. 

that Baron may have made during discovery or during the 

summary judgment hearing. Without construing relevant 

claim terms, however, the import of those statements—

and the propriety of the parties’ positions on infringement—cannot be reasonably determined with an appropriate level of clarity. 

This guidance is not an “appellate pronouncement[] 

on case management,” as the dissent sees it. Dissent at 9. 

It is merely recognition that the facts of this case demonstrate the necessity of construing claim terms as part of 

the infringement analysis. 

 
United States Court of Appeals 

for the Federal Circuit ______________________ 

BARON SERVICES, INC.,

Plaintiff-Appellant,

v.

MEDIA WEATHER INNOVATIONS LLC,

Defendant-Appellee.

______________________ 

2012-1285, -1443

______________________ 

Appeal from the United States District Court for the 

Northern District of Alabama in No. 11-CV-1606, Judge 

Inge Prytz Johnson.

______________________ 

REYNA, Circuit Judge, dissenting.

This case presents the question of at what point 

should the case management perspectives of a party 

trump an otherwise properly entered summary judgment? 

The majority takes the unusual course of vacating a 

summary judgment determination that is supported by 

the record evidence based on the premise that the district 

court failed to manage procedure and discovery in accordance with Baron Services, Inc.’s (“Baron”) case management expectations which the district court held to be 

unreasonable and obstructive. I find that the district 

court’s case management was not an abuse of discretion, 
2 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC

and that the record evidence supports the entry of summary judgment. I respectfully dissent.

BACKGROUND

Baron accuses Media Weather Innovations, LLC 

(“MWI”) of infringing U.S. Patent No. 6,490,525 (“the ’525 

Patent”) by transmitting National Weather Service 

(“NWS”) warnings. The written description of the ’525 

Patent discloses a computer-based system that, after 

compiling meteorological data, may predict the path of a 

storm, ’525 Patent col. 3 ll. 39-41, use the data to generate 

storm profiles, id. at col. 4 ll. 57-59, and perform “storm 

tracking functions.” ’525 Patent col. 6 ll. 24-27, 64-65. 

The end result, at least as envisioned in the preferred 

embodiment, is that the generated storm profiles are 

“distributed to the respective remote units by the distribution network” so that an end user receives “sitespecific” and “highly relevant” weather information. ’525 

Patent col. 4, ll. 59-65. 

The asserted claims are drawn to “logic” configured to 

manipulate weather data and make determinations 

relating to weather events. The logic is also configured to 

transmit such weather-related determinations to a user in 

a geographic region experiencing the impending weather 

event. Claim 1 recites:

1. A system for providing weather event notifications, comprising: 

memory for storing contact identifiers that 

identify a plurality of remote units; and

logic configured to make a determination

as to whether one of said contact identifiers identifies at least one of the said remote units that is located within a 

geographic region of an impending weather event, said logic further configured to 

transmit, if said logic determines in said 
 BARON SERVICES, INC . v. MEDIA WEATHER INNOVA TIONS LLC 3

determination that said one contact identifier identifies a remote unit located within said geographic region, a signal to the 

at least one remote unit based on said one 

contact identifier thereby enabling the at 

least one remote unit to notify a user within said geographic region of said impending weather event. 

’525 Patent col. 10 ll. 33-47 (emphases added). Based on 

the plain language of the representative claim, it cannot 

be infringed unless an accused system compiles data and 

determines, based on the user’s location, where to send 

the corresponding warning. The issue before the district 

court was whether MWI’s dissemination of unmanipulated NWS warnings, to a user at a self-designated location,1

infringes the ’525 Patent. 

SUMMARY JUDGMENT

The dispositive summary judgment rationale—that 

MWI’s products do not infringe because they merely 

download publicly available NWS notifications and forward the notifications to subscribers—is based on Baron’s 

admissions and statements concerning what constitutes 

1 MWI distributes NWS warnings only to those users who opt-in through MWI’s WeatherCall products. 

This distinction is important in understanding a core 

difference between Baron’s commercial embodiment of its 

patent and the accused products. Whereas the Baron SafT-Net system analyzes where to send NWS warnings 

based on Internet digital addressing and whether a 

customer’s phone number is inside or outside the area 

affected by the weather alert, see J.A. 556−57, the MWI 

accused products forward the NWS warnings based solely 

on geographic information the user provides in opting-in 

and requesting MWI’s weather alerts. J.A. 491−92.

 
4 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC

infringing activity. See J.A. 22; J.A. 1034. First in its 

written discovery responses, and later at oral argument, 

Baron defined the parameters of noninfringement: “[W]e 

concede just getting information from the National 

Weather Service and just passing it along without manipulation . . . would not be an infringement of the patent.” 

J.A. 1034; see also J.A. 380. The district court noted that 

“Baron admits that information from the National 

Weather Service alone, including a ‘warning’, [sic] does 

not infringe the ’525 Patent.” J.A. 23, n.9 (quoting J.A. 

380) (emphasis in original omitted).

In moving for summary judgment, MWI argued that 

its straightforward dissemination of weather information—without analysis or manipulation—could not 

satisfy the specific logic requirements of the asserted 

claims and fell squarely within Baron’s parameters of 

noninfringement. To support its position, MWI adduced 

evidence, including sworn declarations of corporate representatives, J.A. 138−39; J.A. 141−43; J.A. 491−92, copies 

of the alerts MWI disseminated to subscribers, J.A. 1058, 

and a proposal in the MWI provisional patent application 

describing preferred embodiments as delivering NWS 

warning without meteorological analysis or forecasting. 

See J.A. 626−27. The witness declarations provided a 

particularized comparison between operation of the 

accused products and the limitations in the claims. Mr. 

Michael Fannin, developer of the accused products, explained that the computer source code does not analyze 

meteorological data as claimed in the ’525 Patent. J.A. 

138. Similarly, Ms. Valerie Ritterbusch, President of 

MWI, provided two declarations clarifying that there is no 

analysis of data, id. at 142, and confirmed that the accused products transmit NWS warnings without engaging 

in any sort of weather event prediction. Id. at 492. 

Relying primarily on the witness declarations, the district court granted summary judgment because the MWI 

“does not use a geographical area, region, cell or grid to 
 BARON SERVICES, INC . v. MEDIA WEATHER INNOVA TIONS LLC 5

determine areas to be alerted.” J.A. 28. In particular, the 

district court cited to Baron’s admission in the written 

discovery response, and then evaluated the sworn statement of Ms. Ritterbusch stating that MWI “only transmit[s] National Weather Service warnings to members of 

the public who subscribe to MWI’s services.” J.A. 24 

(quoting J.A. 491). After pointing out that Baron had not 

presented any evidence of infringement, by affidavit or 

otherwise, the district court concluded that MWI’s unrefuted showing established that it merely passes on alerts 

and such basic activities could not, as a matter of law, 

perform the numerous steps recited in the asserted 

claims. See id. at 28−29 (citing Ritterbusch declaration). 

In light of this body of evidence, I would affirm the 

district court’s summary judgment ruling—a ruling that 

isolated and disposed of unsupported infringement claims. 

See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986) 

(“One of the principal purposes of the summary judgment 

rule is to isolate and dispose of factually unsupported 

claims or defenses, and we think it should be interpreted 

in a way that allows it to accomplish this purpose.”); see

also Minkin v. Gibbons, P.C., 680 F.3d 1341, 1351 (Fed. 

Cir. 2012). Indeed, the purpose of summary judgment is 

to dispose of those issues for which there is no contention 

as a matter of law. FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

MWI discharged its burden when it presented evidence that it met Baron’s noninfringement description. 

Baron, having made a choice to define the bounds of 

noninfringing activities, did not rebut MWI’s summary 

judgment showing. Because Baron failed to point to 

specific ways in which accused products were capable of 

analysis and/or manipulation that met the claim limitations, the district court was correct to conclude that Baron 

did not have a credible basis to oppose the motion for 

summary judgment. Exigent Tech., Inc. v. Atrana Solutions, Inc., 442 F.3d 1301, 1308−09 (Fed. Cir. 2006) (ap-
6 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC

plying Eleventh Circuit law and holding that summary 

judgment is warranted when the movant has discharged 

its burden and there is an absence of evidence to support 

the nonmoving party’s case); Optivus Tech., Inc. v. Ion 

Beam Applications S.A., 469 F.3d 978, 990 (Fed. Cir. 

2006) (reaffirming the well-established summary judgment framework for shifting the burden of production). 

DISCOVERY AND CLAIM CONSTRUCTION

Taken as a whole, I believe that the majority takes a 

highly selective, one-sided perspective of the record.2 

First, the majority neither acknowledges nor discusses 

Baron’s voluntary narrowing of the noninfringement 

issue. Second, the majority ignores whether the summary 

judgment determination is supported by the record evidence. And, third, the majority fails to take into account 

Baron’s tactics which the district court described as 

obstinate and egregious. J.A. 30; J.A. 32.

Our standard of review warrants deference to the district court’s characterization of the litigation dynamics,3

2 See, e.g., Majority Op. 2 (emphasizing that the 

district court did not “set a timetable for Markman proceedings or for exchanging invalidity or infringement 

contentions”); Majority Op. 8−9 (using quotation marks to

underscore the district court’s perceived “duty”).

3 “Questions of trial management are quintessentially the province of the district courts.” United States v. 

Smith, 452 F.3d 323, 332 (4th Cir. 2006); see also Stuart 

v. Huff, 706 F.3d 345, 350 (4th Cir. 2013) (honoring the 

trial court’s “superior vantage point” in “exercising judgment based on [the trial court’s] ‘on the scene’ presence”) 

(internal citations omitted). These well settled precepts 

are consistent across all Circuits. See, e.g., Outside the 

Box Innovations, LLC v. Travel Caddy, Inc., 695 F.3d 

1285, 1296 (Fed. Cir. 2012) (“Deference is given to the 

district court’s discretion in trial management ‘unless the 

 
 BARON SERVICES, INC . v. MEDIA WEATHER INNOVA TIONS LLC 7

especially where, as here, the district court recognized 

Baron’s efforts to undermine its established procedures. 

The district court noted Baron’s propensity to ignore court 

orders “in favor of its own proposed time lines and rules of 

procedure.” See J.A. 33, n.16. The record bears out this 

observation, demonstrating a pattern of Baron comporting 

in a manner that suited its own convenience. For example, in response to a multitude of MWI inquiries, Baron 

resisted written discovery unless and until the district 

court adopted local patent rules and/or set a Markman 

hearing. See, e.g., J.A. 174; J.A. 362−85 (declining to 

exchange proposed claim constructions because Baron 

considered such a request “premature” prior to the court 

setting a Markman timetable). The district court expressed findings on these dilatory tactics and deficient 

discovery responses. The written decision reflects the 

district court’s frustration with the manner in which 

Baron prosecuted its case:

[T]he plaintiff relies on its request for a hearing 

and the timetable offered by it that was never 

adopted by the court as a reason it does not have 

to respond to discovery. The plaintiff did not address the fact that the requests for admission, as 

well as the remainder of the discovery propounded 

by the defendant were all in accordance with the 

Scheduling Order actually entered by this court. 

J.A. 23, n.9 (emphasis in original). 

ruling is manifestly erroneous.’”) (quoting United States v. 

Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc)); 

United States v. Criden, 648 F.2d 814, 817–18 (3d Cir.

1981) (where the trial court has a “superior vantage 

point” from which to resolve the question, its decision 

“merits a high degree of insulation for appellate revision”).

 
8 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC

Baron’s efforts to dictate the trajectory of court proceedings should not have gained traction on appeal. 

While some districts and individual judges have elected to 

impose local patent rules, the district court was under no 

obligation to incorporate Baron’s requests into the docket 

control order. Nor was the district court obligated to hold 

a Markman hearing prior to summary judgment,4 as 

demonstrated by Baron’s failure to cite authority that it 

was entitled to a hearing as a matter of right. This court, 

on previous occasions, has chastised district courts for 

conducting a trial without rigorous claim construction 

efforts. E.g., Allen Eng’g Corp. v. Bartell Indus., Inc., 299 

F.3d 1336, 1346 (Fed. Cir. 2002); Graco, Inc. v. Binks Mfg. 

Co., 60 F.3d 785, 791 (Fed. Cir. 1995). These decisions 

are procedurally distinct from the situation presented in 

this case. Our prior discussions of the need for claim 

interpretation have not demanded that claims be construed in advance of summary judgment, and importantly, in Allen Engineering and Graco the parties did not 

diminish the need for the district court to construe the 

claims by voluntarily defining the parameters of noninfringement. Here, the district court had no need to examine the meaning of the claims in exacting detail because 

Baron’s explicit concessions shaped the infringement 

4 To the contrary, in the context of a given case, 

claim construction can, and does, occur solely based on 

the paper record. E.g., Interactive Gift Express, Inc. v. 

Compuserve Inc., 1998 WL 247485 at *1, n. 3 (S.D.N.Y. 

May 15, 1998) (“The Court notes at the outset that no 

Markman hearing is needed in this case because the 

Court does not require expert or other testimony to aid it 

in its claim construction.”), vacated on other grounds, 256 

F.3d 1323 (Fed. Cir. 2001); Revlon Consumer Prods. Corp. 

v. Estee Lauder Co., Inc., 2003 WL 21751833, at *14 

(S.D.N.Y. July 30, 2003) (collecting district court cases).

 
 BARON SERVICES, INC . v. MEDIA WEATHER INNOVA TIONS LLC 9

analysis by narrowing the scope of its claims when compared the claims with the accused products. 

I believe that the district court acted reasonably by relying on Baron’s statements regarding the potential 

noninfringing operation of the accused products, and that 

such reliance negated the district court’s obligation to 

further define terms in the asserted claims. Compare 

with Majority Op. 15, n.13 (critiquing the district court’s 

handling of claim construction in performing the infringement analysis). The majority’s reasoning encroaches upon a district court’s discretion to manage a case, and 

its critiques amount to appellate pronouncements on case 

management. The majority states that “[t]he importance 

of claim construction is quite evident here,” Majority Op. 

15, n.13, an assessment that indicates how the majority 

would have handled the case if wearing the district court’s 

robe. But that is not the inquiry on appeal. The issue on 

appeal is whether the record evidence supports the entry 

of summary judgment and whether the district court 

abused its discretion in its case management decisions.

The majority also pays significant attention to Baron’s 

claims regarding its need for MWI’s source code, yet 

Baron has no absolute entitlement to this discovery given 

its failure to demonstrate good cause as to why the source 

code was relevant to the alleged infringement. J.A. 

164−65. I find that the source code issue is but one part 

of Baron’s litany of unsubstantiated discovery grievances 

that feint towards evidence that is not in the record to 

divert attention from the unrebutted evidence that is in 

the record. E.g., Majority Op. 11−14. 

The majority likewise errs in proclaiming, without 

confronting the salient facts in the record, that the district court “refused” to permit depositions of Mr. Fannin 

and Ms. Ritterbusch. Majority Op. 13. The actual correspondence between the parties contradicts this assertion 

and shows that Baron could have taken Mr. Fannin and 
10 BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC

Ms. Ritterbusch’s depositions prior to the summary judgment hearing. J.A. 970−71. The parties had notice as to 

when the summary judgment motion would be heard and 

once the MWI witnesses were made available it behooved 

Baron to secure the testimony it needed to survive summary judgment, or at minimum to seek protective relief 

from the court. Instead, Baron affirmatively chose to not 

take depositions prior to the summary judgment hearing 

and to actually declare it would delay securing that 

testimony after the district court considered the summary 

judgment positions. This was a strategic choice for which 

it should bear the consequences. It is not our duty to 

repair a party’s self-inflicted wounds.

CONCLUSION

While I agree that parties generally should be permitted to develop the record, obtain claim construction, and 

engage in discovery prior to consideration of summary 

judgment, a party should not be permitted to escape 

summary judgment through deliberate trial strategies. 

Barfield v. Brierton, 883 F.2d 923, 932 (11th Cir. 1989) 

(explaining that it is within a district court’s discretion to 

refuse to stay consideration of a motion for summary 

judgment “if the district court is dissatisfied with the 

nonmovant’s explanations as to why he cannot rebut the 

movant’s motion for summary judgment”) (citing Wallace 

v. Brownell Pontiac-GMC Co., Inc., 703 F.2d 525, 527 

(11th Cir. 1983)). The record in this case supports the 

conclusion that the district court allowed discovery to run 

its course and after Baron made concessions regarding 

what constituted noninfringing activity, the district court 

evaluated the evidence of record and correctly found that 

Baron “failed to provide any evidence of specific actions, 

processes, or procedures of [MWI’s] product that follow 

the steps of plaintiff’s patent.” J.A. 26. Eleventh Circuit 

case law confirms that the district court was correct to 

consider whether summary judgment was appropriate 

based on the record before it. Holloman v. Mail-Well 
 BARON SERVICES, INC . v. MEDIA WEATHER INNOVA TIONS LLC 11

Corp., 443 F.3d 832, 836 (11th Cir. 2006) (appellate 

review of a district court’s grant or denial of summary 

judgment considers “only the evidence that was available 

to the district court at the time it considered the motion”) 

(internal citation omitted). 

The majority adopted Baron’s procedural perspective 

and was dismissive of the district court’s role in setting 

the tone and schedule for case management and discovery 

disputes. In my view, the district court is endowed with 

broad discretion to decide the manner it will run a case. 

FED. R. CIV. P. 16; Pac. Indem. Co. v. Broward County, 

465 F.2d 99, 103 (11th Cir. 1972) (noting that Rule 16 

“gives the trial court broad discretion in conducting pretrial procedures in order to narrow the issues, reduce the 

field of fact controversy for resolution, and to simplify the 

mechanics of the offer and receipt of evidence”); accord

Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir. 

1998) (“The Civil Rules endow judges with formidable 

case-management authority. . . . In exercising this power, 

trial judges enjoy great latitude.”) (internal citations 

omitted). Here, the record shows that the district court 

acted well within the bounds of reasonableness in denying 

Baron’s case management and discovery requests. Cf.

Vivid Tech., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 

803−04 (Fed. Cir. 1999) (affirming a district court’s decision to limit discovery as appropriate in each phase of the 

litigation). Because I find that the district court did not 

abuse its discretion and that the record supports summary judgment, I respectfully dissent.