United States Court of Appeals 

for the Federal Circuit 

__________________________ 

VOTER VERIFIED, INC., 

Plaintiff-Appellant, 

v. 

PREMIER ELECTION SOLUTIONS, INC., 

Defendant-Cross-Appellant, 

AND

DIEBOLD INCORPORATED, 

Defendant-Appellee. 

__________________________ 

2011-1553, 2012-1017 

__________________________ 

Appeals from the United States District Court for the 

Middle District of Florida in Case No. 09-CV-1968, Senior 

Judge Patricia C. Fawsett. 

__________________________ 

VOTER VERIFIED, INC., 

Plaintiff-Appellant, 

v. 

ELECTION SYSTEMS & SOFTWARE, INC., 

Defendant-Cross-Appellant. 

__________________________ 

2011-1559, 2012-1016 

__________________________ 
VOTER VERIFIED v. PREMIER ELECTION 2

Appeals from the United States District Court for the 

Middle District of Florida in Case No. 09-CV-1969, Senior 

Judge Patricia C. Fawsett. 

____________________________ 

Decided: November 5, 2012 

____________________________ 

ANTHONY I. PROVITOLA, Attorney at Law, DeLand, 

Florida, argued for plaintiff-appellant. 

ROBERT M. EVANS, JR., Senniger Powers LLP, of St. 

Louis, Missouri, argued for defendants-cross appellants 

and defendant-appellee. With him on the brief were 

MARC W. VANDER TUIG, and SARA WEILERT GILLETTE. 

__________________________ 

Before LOURIE, REYNA, and WALLACH, Circuit Judges. 

LOURIE, Circuit Judge. 

These consolidated appeals stem from two related 

patent infringement actions brought in the United States 

District Court for the Middle District of Florida by Voter 

Verified, Inc. (“Voter Verified”) against Premier Election 

Solutions, Inc. (“Premier”), Diebold, Inc. (“Diebold”), and 

Election Systems & Software, Inc. (“Election Systems”) 

(collectively, “Defendants”) in which Voter Verified alleged infringement of claims 1–94 of U.S. Reissue Patent 

RE40,449 (the “’449 patent”).1 As the respective appellate 

 1

 Voter Verified also alleged infringement of U.S. 

Patent 6,769,613 (the “’613 patent”), which had been 

reissued as the ’449 patent. The district court held that 

the ’613 patent could not be infringed because it had been 

surrendered pursuant to 35 U.S.C. § 251 during reissue 

proceedings. That issue is not disputed on appeal. 
3 VOTER VERIFIED v. PREMIER ELECTION

briefs are virtually identical, we consider the cases together. 

On summary judgment, the district court held claims 

1–93 not infringed and invalidated claims 49 and 94, but 

the court also dismissed the Defendants’ counterclaim 

that claims 85 and 93 are invalid and held that claims 1–

48, 50–84, and 86–92 are not invalid.2 Voter Verified, Inc. 

v. Premier Election Solutions, Inc., No. 6:09-cv-1968 (M.D. 

Fla. Aug. 31, 2011) (Final Judgment), ECF No. 251; Voter 

Verified, Inc. v. Election Sys. & Software, Inc., No. 6:09-

cv-1969 (M.D. Fla. Sept. 1, 2011) (Final Judgment), ECF 

No. 197. On appeal, Voter Verified challenges a large 

number of the district court’s rulings, including its judgments in favor of the Defendants on infringement and 

invalidity, while Premier and Election Systems crossappeal as to the validity of the surviving claims of the ’449 

patent. For the reasons that follow, we affirm. 

BACKGROUND

The ’449 patent, assigned to Voter Verified, issued on 

August 5, 2008, and claims priority from an application 

filed on December 7, 2000. The patent discloses and 

claims automated systems and methods for voting in an 

election, featuring a self-verification procedure by which 

“machine and human error may be detected and corrected 

before the ballot is submitted by the voter for tabulation.” 

’449 patent col. 3 ll. 9–11. Briefly, the voter enters a vote 

into an electronic voting station, which temporarily records the voter’s input in digital storage and generates a 

corresponding printed ballot. That printed ballot is then 

 2

 The district court’s holding that claims 1–48, 50–

84, and 86–92 are not invalid did not apply to Diebold. 

Diebold’s invalidity counterclaims were instead dismissed 

without prejudice in their entirety (i.e., as to all of the 

surviving claims 1–48 and 50–93). 
VOTER VERIFIED v. PREMIER ELECTION 4

checked for accuracy, either by presentation to the voter 

for visual inspection or by a computerized scanning 

mechanism capable of comparing the face of the printed 

ballot with the vote data represented in the station’s 

temporary storage. In either case, only ballots deemed 

consistent with the voter’s intended or recorded input are 

accepted for final tabulation. See id. col. 2 ll. 22–40. 

Independent claims 1, 25, 56, and 94 recite such “selfverifying” voting systems, and independent claims 49, 85, 

and 93 recite closely related voting methods. For example, claims 1 and 49 read: 

1. A self-verifying voting system comprising: 

one or more voting stations comprising: 

(a) one or more computer programs which operate in a computer to display general 

voting instructions, at least one election 

ballot showing the candidates and issues to be voted on, and directions to 

the voter for operation of the system; 

present the election ballot for voting and 

input of votes by the voter; 

accept input of the votes from the voter; 

print out the election ballot according to 

which the voter voted with the votes of 

the voter printed thereon, so that the 

votes of the voter are readable on said 

election ballot by the voter and readable 

by a tabulating machine; 

record the votes in the computer; and 

compare the votes read by a ballot scanning machine with the votes recorded in 

the computer; 
5 VOTER VERIFIED v. PREMIER ELECTION

(b) a computer with at least one display device, at least one device to accept voting 

input from a voter, at least one data 

storage device, and sufficient memory to 

provide for the operation of said computer program in which said computer 

program runs; 

(c) a printer connected to said computer for 

printing the election ballot according to 

which the voter voted; 

(d) a ballot scanning means for reading the 

votes on the printed ballot printed according to the election ballot which the 

voter voted so that the votes shown on 

the printed ballot are compared by the 

computer program with the votes recorded in the computer for the voter; 

(e) means for connecting said ballot scanning 

means to said computer; and 

a means for tabulating the printed ballots 

generated by said one or more voting 

stations. 

Id. col. 6 ll. 18–52. 

49. A method of voting providing for selfverification of a ballot comprising the steps of: 

(a) voting by a voter using a computer voting 

station programmed to present an election ballot, accept input of votes from 

the voter according to the election ballot, temporarily store the votes of the 

voter; 
VOTER VERIFIED v. PREMIER ELECTION 6

(b) printing of the votes of the voter from the 

votes temporarily stored in the computer for the voting station; 

(c) comparison by the voter of the printed 

votes with the votes temporarily stored 

in the computer for the voting station; 

(d) decision by the voter as to whether a 

printed ballot is acceptable or unacceptable; 

(e) inputting of information as to the acceptability of a printed ballot by the voter; 

and 

(f) submission of an acceptable printed ballot 

for tabulation. 

Id. col. 9 ll. 34–52. 

The Defendants produce and market automated voting systems. In November 2009, Voter Verified filed two 

nearly identical infringement complaints based on the 

’449 patent, one directed at Premier and Diebold, and the 

other targeting Election Systems. The Defendants denied 

infringement and sought declaratory judgments of invalidity on various grounds including anticipation, obviousness, and indefiniteness. 

In a series of summary judgment orders, the district 

court held that the Defendants had not infringed claims 

1–93. In addition, the court concluded that claim 94 was 

invalid as indefinite under 35 U.S.C. § 112, ¶ 2, and that 

claim 49 was invalid as obvious under 35 U.S.C. § 103 in 

view of an article (the “Benson article”) obtained from an 

online periodical concerned with computer safety and 

security, known as the Risks Digest. The district court 

entered summary judgment against Premier and Election 

Systems, however, on their invalidity counterclaims 
7 VOTER VERIFIED v. PREMIER ELECTION

regarding claims 1–48, 50–84, and 86–92, holding that 

they had “fail[ed] to present any argument or evidence 

regarding the invalidity of these claims” and therefore 

could not satisfy their burden of establishing invalidity by 

clear and convincing evidence. Finally, the district court 

dismissed without prejudice Diebold’s invalidity counterclaims as to claims 1–48 and 50–93, as well as Premier 

and Election Systems’ invalidity counterclaims regarding 

claims 85 and 93.

Voter Verified appeals on numerous grounds, including the judgments of noninfringement and invalidity, and 

both Premier and Election Systems cross-appeal regarding the validity of claims 1–48, 50–84, and 86–92. We 

have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). 

DISCUSSION

We review orders granting summary judgment de

novo, applying the same standard as the district court 

under Fed. R. Civ. P. 56. Ecolab, Inc. v. Envirochem, Inc., 

264 F.3d 1358, 1363–64 (Fed. Cir. 2001). 

A. Invalidity 

The district court held claims 49 and 94 of the ’449 

patent invalid as obvious and indefinite, respectively. 

While no longer defending claim 94, Voter Verified argues 

that the district court’s invalidation of claim 49 was 

incorrect. Premier and Election Systems cross-appeal as 

to the validity of claims 1–48, 50–84, and 86–92. 

1. Claim 49 

Voter Verified challenges the district court’s invalidity 

determination regarding claim 49, and in particular its 

reliance on the Benson article as prior art. Voter Verified 

contends that a web-based reference like the Benson 

article must be “searchable by pertinent terms over the 
VOTER VERIFIED v. PREMIER ELECTION 8

internet” to qualify as a prior art “printed publication” as 

defined by 35 U.S.C. § 102(b), and Voter Verified argues 

further that the Defendants “provided no evidence of any 

indexing on any database” that would have allowed the 

interested public to locate the Risks Digest website, much 

less the Benson article contained therein. According to 

Voter Verified, the Benson article therefore should have 

been excluded from the district court’s obviousness analysis. The Defendants respond that the Benson article 

qualifies as prior art because it was posted on a public 

website well known to those interested in the art of voting 

technologies—the Risks Digest—and could be retrieved 

from that website by searching based on subject matter. 

We conclude not only that the Benson article is a 

“printed publication” within the meaning of § 102(b), but 

also that it renders claim 49 obvious under § 103. When 

considering whether a given reference qualifies as a prior 

art “printed publication,” the key inquiry is whether the 

reference was made “sufficiently accessible to the public 

interested in the art” before the critical date. In re Cronyn, 890 F.2d 1158, 1160 (Fed. Cir. 1989) (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 

1568 (Fed. Cir. 1988)). “Whether a reference is publicly 

accessible is determined on a case-by-case basis based on 

the ‘facts and circumstances surrounding the reference’s 

disclosure to members of the public.’” In re Lister, 583 

F.3d 1307, 1311 (Fed. Cir. 2009) (quoting In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir. 2004)). Public accessibility is a legal conclusion based on underlying factual 

determinations. Cooper Cameron Corp. v. Kvaerner 

Oilfield Prods., Inc., 291 F.3d 1317, 1321 (Fed. Cir. 2002). 

Voter Verified emphasizes indexing as a determinant 

of public accessibility in this case. To be sure, indexing is 

a relevant factor in determining accessibility of potential 

prior art, particularly library-based references. See, e.g., 
9 VOTER VERIFIED v. PREMIER ELECTION

In re Hall, 781 F.2d 897 (Fed. Cir. 1986) (holding that a 

dissertation indexed in a university library catalog was a 

publicly accessible printed publication); In re Bayer, 568 

F.2d 1357 (CCPA 1978) (holding that a thesis housed, but 

neither shelved nor catalogued, within a university library was not publicly accessible). But indexing is not “a 

necessary condition for a reference to be publicly accessible”; it is but one among many factors that may bear on 

public accessibility. Lister, 583 F.3d at 1312. Moreover, 

indexing is no more or less important in evaluating the 

public accessibility of online references than for those 

fixed in more traditional, tangible media. In both situations, the ultimate question is whether the reference was 

“available to the extent that persons interested and 

ordinarily skilled in the subject matter or art[,] exercising 

reasonable diligence, can locate it.” SRI Int’l, Inc. v. 

Internet Sec. Sys., Inc., 511 F.3d 1186, 1194 (Fed. Cir. 

2008) (quoting Bruckelmyer v. Ground Heaters, Inc., 445 

F.3d 1374, 1378 (Fed. Cir. 2006)). Thus, while often 

relevant to public accessibility, evidence of indexing is not 

an absolute prerequisite to establishing online references 

like the Benson article as printed publications within the 

prior art. 

Here, the evidence of record supports the district 

court’s conclusion that the Benson article was publicly 

accessible before the December 7, 1999, critical date—one 

year before the earliest priority date for the ’449 patent—

and therefore qualified as prior art under § 102(b). The 

Benson article was posted to the Risks Digest by Tom 

Benson on March 4, 1986. At that time, the Risks Digest 

was distributed online via a subscription mailing list and 

also made available for download through an FTP site 

maintained by SRI International. Starting in January 

1995, however, all content published in the Risks Digest 

(including the Benson article) became available worldwide 
VOTER VERIFIED v. PREMIER ELECTION 10

on the internet through the website http://catless.ncl

.ac.uk/Risks. Furthermore, unrebutted testimony in the 

record indicated that (1) the Risks Digest was well known 

to the community interested in the risks of computer 

automation, including those concerned with electronic 

voting technologies, and by 1999 the Risks Digest contained more than 100 articles relating to electronic voting; 

(2) all submissions for publication in the Risks Digest are 

treated by the community as public disclosures; and 

(3) users can freely and easily copy Risks Digest content. 

In addition, since September 1995 the Risks Digest website has included a search tool that would have retrieved 

the Benson article in response to search terms such as 

“vote,” “voting,” “ballot,” and/or “election.” On the other 

hand, although commercial internet search engines were 

available by 1999, the record is devoid of evidence indicating whether or not the Risks Digest website had been 

indexed by any such services as of the critical date. The 

district court credited each of the preceding factual assertions, as it was entitled to do. 

Given the record before us, we see no error in the district court’s factual findings or its conclusion that the 

Benson article constituted publicly available prior art 

relative to the ’449 patent. The Risks Digest website was 

undisputedly open to any internet user by the critical 

date. Whether or not the website itself had been indexed 

by 1999 (through search engines or otherwise), the uncontested evidence indicates that a person of ordinary skill 

interested in electronic voting would have been independently aware of the Risks Digest as a prominent forum for 

discussing such technologies. And upon accessing the 

Risks Digest website, such an interested researcher would 

have found the Benson article using that website’s own 

search functions and applying reasonable diligence. In 

short, the Benson article was publicly available by the 
11 VOTER VERIFIED v. PREMIER ELECTION

critical date and therefore qualifies as a prior art “printed 

publication” under § 102(b). 

Having correctly confirmed the Benson article as prior 

art, the district court proceeded to hold claim 49 invalid 

as obvious in light of that reference. The court found “no 

differences between the claimed invention and the Benson 

article” based on its review of claim 49, the Benson article, and what it considered to be persuasive testimony 

offered by the Defendants’ expert. Voter Verified presented no contrary evidence and points to none on appeal. 

In pertinent part, the Benson article discloses 

an electronic voting booth, with a screen and some 

sort of simple keyboard. . . . The voter fills in his 

or her choices and has a chance to go back and 

correct errors. At that point, the voter pushes a 

button to confirm the ballot, and a printer prints 

card ballot, which it retains behind a transparent 

screen (it can be read but not altered). Voter 

scans the printed card and is asked whether it is 

accurate. At this point, if it is not, a REVISE or 

CANCEL button is pushed and the process starts 

over with nothing having been recorded (the card 

is shredded). When the screen and card match 

the voter’s intentions, a second CONFIRM button 

is pushed and the card is ejected, while the vote is 

electronically forwarded. The voter takes the card 

out of the booth and drops it in a ballot box. 

Tom Benson, Computerized Voting, Risks Digest (Mar. 4, 

1986, 4:27 PM) http://catless.ncl.ac.uk/Risks/2.22.html

#subj3.1. While the disclosures in the Benson article are 

not identical with the language of claim 49, we agree with 

the district court that the Benson article would have 

made the voting method of claim 49 obvious to one of 

ordinary skill in the art of computerized voting technol-
VOTER VERIFIED v. PREMIER ELECTION 12

ogy. Accordingly, the district court correctly held claim 49 

invalid for obviousness. 

2. Claims 1–48, 50–84, and 86–92 

Premier and Election Systems argue in their crossappeals that the district court erroneously granted summary judgment in favor of Voter Verified on the validity of 

claims 1–48, 50–84, and 86–92. Premier and Election 

Systems contend that because Voter Verified (1) was not 

actively asserting most of those claims and (2) had moved 

to terminate the case, the district court lacked jurisdiction 

to make its ruling on validity. We disagree. 

The initial complaint in this case alleged infringement 

of every claim of the ’449 patent, and while Voter Verified 

later pared back its infringement contentions, it did so 

with the caveat that discovery might dictate reintroducing 

“other claims in the patents in suit.” In addition, Premier 

and Election Systems kept any “unasserted” claims before 

the district court by maintaining their respective counterclaims that alleged invalidity of “[e]ach claim of the ’449 

patent.” When Voter Verified moved for summary judgment on those counterclaims, Premier and Election Systems never responded with viable arguments or evidence 

to support their invalidity contentions regarding claims 

1–48, 50–84, and 86–92, despite multiple opportunities to 

do so.3 

As the district court recognized, it was ultimately up 

to Premier and Election Systems to establish each of their 

invalidity counterclaims by clear and convincing evidence; 

yet they failed to mount a response to Voter Verified’s 

 3

 The Defendants did offer anticipation arguments 

as to claim 56, but the district court rejected those arguments. Claims 1–48, 50–55, 57–84, or 86–92 were never 

addressed. 
13 VOTER VERIFIED v. PREMIER ELECTION

summary judgment motion on the claims now at issue. 

Furthermore, we fail to see how Voter Verified’s intervening motion to suspend or terminate the proceedings for 

appeal—a motion that was never granted—absolves 

Premier and Election Systems of that fundamental burden. Because Premier and Election Systems failed to 

adequately support their own counterclaims, the district 

court did not err by granting Voter Verified’s summary 

judgment motion that claims 1–48, 50–84, and 86–92 

were not proven invalid. 

B. Noninfringement 

Voter Verified next challenges the district court’s 

judgment that the Defendants do not infringe claims 1–93 

of the ’449 patent. Voter Verified has not substantively 

disputed that judgment on appeal as it applies to claims 

56–84, and we therefore deem any challenge regarding 

those claims waived. We address the remaining claims as 

set forth below and affirm the judgment of noninfringement. 

1. Claims 1–48 

Independent claims 1 and 25 claim “self-verifying voting system[s],” and each requires, inter alia, “a ballot 

scanning means” that allows the claimed system to read a 

printed ballot for comparison to the voter’s input as 

recorded by the voting station computer. The district 

court construed “ballot scanning means” pursuant to 35 

U.S.C. § 112, ¶ 6, and held that the accused systems 

lacked any “ballot scanning machine” or equivalent corresponding structure capable of carrying out the claimed 

function of reading votes on a printed ballot. 

On appeal, Voter Verified agrees with the district 

court’s claim construction analysis and concedes that the 

accused systems lack any ballot scanning device. What 
VOTER VERIFIED v. PREMIER ELECTION 14

the district court failed to appreciate, according to Voter 

Verified, is that the ’449 patent sets forth the voter as an 

“alternative and equivalent” structure for carrying out the 

claimed ballot scanning function. Voter Verified asserts 

that “[c]omparison by the voter of the printed votes . . . 

with those displayed as recorded on the [accused systems] 

occurs with the voter’s visual examination of each to 

ascertain any differences between them,” thus infringing 

claims 1 and 25 literally or at least under the doctrine of 

equivalents. 

The district court rejected Voter Verified’s argument, 

and so do we. It is well established that “a human being 

cannot constitute a ‘means’” within the scope of § 112, ¶ 6, 

Default Proof Credit Card Sys., Inc. v. Home Depot U.S.A., 

Inc., 412 F.3d 1291, 1300 (Fed. Cir. 2005), which in itself 

would suffice to dispose of Voter Verified’s infringement 

theory. But even assuming that a human voter could be 

considered a permissible structure, claims 1 and 25 

further require that the printed ballot and electronically 

stored vote be “compared by the computer program” and 

that the scanning means be “connect[ed]” to the computer. 

’449 patent col. 6 ll. 46–50, col. 8 ll. 24–28 (emphasis 

added). Voter Verified has not credibly explained, and the 

specification does not address, how a human could be 

connected to a computer, much less in a manner that 

would effect a computerized analysis upon his or her 

examination of a printed ballot. 

Accordingly, the Defendants were entitled to summary judgment of noninfringement regarding claims 1 

and 25 because none of the accused products includes a 

ballot scanning device or its equivalent. Furthermore, 

because they do not infringe those independent claims, 

the Defendants also cannot infringe associated dependent 

claims 2–24 and 26–48 as a matter of law. Wahpeton 
15 VOTER VERIFIED v. PREMIER ELECTION

Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1552 n.9 (Fed. 

Cir. 1989). 

2. Claims 49–55 and 85–93 

Independent claims 49, 85, and 93 recite methods for 

voting, each explicitly requiring that several of the 

claimed steps must be performed “by the voter.” For 

example, claims 49, 85, and 93 each require an essentially 

identical step in which the voter decides whether a 

printed ballot is an acceptable or unacceptable representation of his or her intended vote.4 Recognizing that 

infringement of claims 49, 85, and 93 would thus require 

multiple actors, the district court looked to our decisions 

in BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 

1373 (Fed. Cir. 2007) and Muniauction, Inc. v. Thomson 

Corp., 532 F.3d 1318 (Fed. Cir. 2008) and held that, even 

if a voter performed every step required by the claimed 

methods, Voter Verified had not presented sufficient 

evidence of control or direction to attribute any of those 

actions to the Defendants. Consequently, the court 

granted summary judgment of noninfringement in favor 

of the Defendants. 

On appeal, Voter Verified contends that “it is axiomatic that all entities who conduct elections must necessarily be in control of their election process,” suggesting 

that it follows that “the computer program of the [accused 

system] controls all of the voter’s actions . . . to complete 

the process of voting.” 

 4

 The claims read: “decision by the voter as to 

whether a printed ballot is acceptable or unacceptable” 

(claims 49 and 85); “decision by the voter as to whether 

the printed votes are acceptable or unacceptable” (claim 

93). ’449 patent col. 9 ll. 47–48, col. 11 ll. 64–65, col. 12 

ll. 35–36. 
VOTER VERIFIED v. PREMIER ELECTION 16

As we held in BMC and Muniauction, liability for direct infringement of a method claim requires that one 

party either performs every step of the claimed method or 

exerts “direction or control” over any such steps performed by others. See Muniauction, 532 F.3d at 1329 

(“Where the actions of multiple parties combine to perform every step of a claimed method, the claim is directly 

infringed only if one party exercises ‘control or direction’ 

over the entire process . . . .” (citing BMC, 498 F.3d at 

1380–81)). That is far from the case before us. Notwithstanding Voter Verified’s conclusory arguments that the 

Defendants necessarily “control[] all of the voter’s actions,” the record shows, at most, that the Defendants 

provide instructions on how to use their systems. But the 

fact that an accused infringer “controls access to its 

system and instructs [others] on its use is not sufficient to 

incur liability for direct infringement.” Id. at 1330. 

The district court thus correctly concluded that Voter 

Verified failed to create a genuine issue of material fact 

regarding whether the Defendants exercised the requisite 

control or direction over voters to directly infringe claims 

49, 85, and 93. As such, claims 50–55 and 86–92, which 

depend from claims 49 and 85, also were not directly 

infringed for at least the same reasons.5 

 5

 Under Akamai Technologies, Inc. v. Limelight Networks, Inc., 692 F.3d 1301 (Fed. Cir. 2012) (en banc), the 

fact that no single entity performs all of the steps in a 

patented method does not resolve the issue of indirect 

infringement. Voter Verified did not argue its claims of 

indirect infringement on appeal, however, and such 

claims were thus waived. 
17 VOTER VERIFIED v. PREMIER ELECTION

C. Remaining Issues 

Finally, Voter Verified has disputed no fewer than 

seventeen6 of the district court’s discretionary rulings on 

various motions, including procedural and discovery 

issues, asserting that “there is hardly a single ruling in 

this case in favor of the Defendants that is not marred by 

an abuse of discretion. . . . Such an abuse of discretion has 

now attained the dimension of bias favoring the Defendants or their counsel.” A claim of seventeen procedural 

errors by a district court seems unlikely at best; however, 

we take such allegations seriously. We have therefore 

carefully considered the record before us, and we conclude 

that Voter Verified’s contentions are wholly without 

merit. We perceive no error in any of the contested or-

 6

 Specifically, the disputed rulings include: (1) declining to grant summary judgment that claims 1, 25, and 

49 were infringed; (2) declining to grant summary judgment that claims 49, 85, and 93 are not invalid; (3) allowing the Defendants to introduce the Risks Digest 

references, including the Benson article; (4-6) allowing the 

Defendants to introduce three disputed expert declarations; (7) allegedly deciding summary judgment motions 

out of order in violation of the court’s own case management procedures; (8) granting leave for the Defendants to 

file a disputed summary judgment motion; (9-11) declining to grant summary judgment in favor of Voter Verified 

on several of the Defendants’ affirmative defenses after 

the cases had been decided on other grounds; (12) failing 

to enter a default judgment against Diebold for filing its 

answer two days late; (13) refusing to allow discovery into 

the Defendants’ alleged improper influence over the clerk 

of court; (14) preventing discovery as to whether Diebold 

had sufficient good cause for answering out of time; (15) 

preventing discovery into Diebold’s subjective intent for 

filing its answer out of time; (16) declining to consider 

evidence regarding the dates of various electronic court 

filings; and (17) failing to compel unqualified compliance 

with Voter Verified’s far-reaching discovery requests. 
VOTER VERIFIED v. PREMIER ELECTION 18

ders, much less anything approaching an abuse of the 

district court’s considerable discretion in such matters. 

CONCLUSION

We have considered each of the parties’ remaining arguments and find them unpersuasive. In view of the 

foregoing, the judgment of the district court is affirmed. 

AFFIRMED