Case: 19-2142   Document: 48     Page: 1   Filed: 07/14/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                     BOOKIT OY,
                   Plaintiff-Appellant

                            v.

   BANK OF AMERICA CORPORATION, BANK OF
                AMERICA, N.A.,
              Defendants-Appellees
             ______________________

                       2019-2142
                 ______________________

    Appeal from the United States District Court for the
 Northern District of Texas in No. 3:17-cv-02577-K, Judge
 Ed Kinkeade.
                 ______________________

                 Decided: July 14, 2020
                 ______________________

     SCOTT COLE, McKool Smith, PC, Austin, TX, argued for
 plaintiff-appellant. Also represented by JOEL LANCE
 THOLLANDER; TRAVIS EDWARD DEARMAN, RICHARD ALAN
 KAMPRATH, Dallas, TX.

    GEORGE C. LOMBARDI, Winston & Strawn LLP, Chi-
 cago, IL, argued for defendants-appellees. Also repre-
 sented by SAMANTHA MAXFIELD LERNER, MARY T.
 MCCARTHY; DUSTIN JAMES EDWARDS, Houston, TX;
Case: 19-2142     Document: 48      Page: 2     Filed: 07/14/2020




 2                 BOOKIT OY   v. BANK OF AMERICA CORPORATION



 KATHERINE MARCOM, Dallas, TX; EIMERIC REIG-PLESSIS,
 San Francisco, CA.
                 ______________________

     Before NEWMAN, LOURIE, and SCHALL, Circuit Judges.
 LOURIE, Circuit Judge.
      BookIT Oy (“BookIT”) appeals from a decision of the
 United States District Court for the Northern District of
 Texas, entering judgment of noninfringement of U.S. Pa-
 tents 8,589,194 (the “’194 patent”) and 9,177,268 (the “’268
 patent”) pursuant to the parties’ stipulation following the
 court’s claim construction order. See BookIT Oy v. Bank of
 America Corp., No. 3-17-cv-02577-K (N.D. Tex. Jun. 3,
 2019), ECF No. 196; BookIT Oy v. Bank of America Corp.,
 No. 3-17-cv-02577-K (N.D. Tex. Oct. 15, 2018), ECF No. 115
 (“Claim Construction Order”). Because we discern no error
 in the district court’s claim construction order and BookIT
 fails to show that the district court otherwise abused its
 discretion, we affirm.
                         BACKGROUND
      The patents-in-suit share a specification that discloses
 “a method and system for booking a reservation in a book-
 ing system and synchronizing bookings.” ’194 patent col. 1
 ll. 18–20; see also id. col. 3 ll. 40–42 (“The invention relates
 to exchanging and synchronizing information between
 booking systems and user terminal devices.”). The specifi-
 cation offers “booking appointments for health services;
 booking travel reservations for hotels, airlines, and rental
 cars; booking tickets for venues; booking appointments for
 vehicle maintenance; [and] booking maintenance for apart-
 ments” as examples of “bookings” with which the invention
 is concerned. Id. col. 1 ll. 56–60.
     Relevant to this case, individuals make bookings with
 “service providers,” who “are those with whom clients want
 to make appointments, reservations, or other bookings and
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 BOOKIT OY   v. BANK OF AMERICA CORPORATION                   3



 comprise the resources for the booking system to allocate,”
 id. col. 3 ll. 55–57. The specification explains that the ser-
 vice providers use a “mediator” service, which, as used in
 the application, “is a network based service available to the
 service provider booking services over the network that
 provides additional semantics, translation and synchroni-
 zation services needed for communication of the infor-
 mation needed for a client to complete a transaction with a
 service provider.” Id. col. 3 ll. 59–64. Claim 1 of the ’194
 patent is representative 1:
     1. A computer program product comprising a non-
     transitory recording medium, having encoded
     thereon a computer readable program executable
     by a computer, for performing functions of a medi-
     ator for controlling communications between a ser-
     vice provider and a client terminal device having a
     client identifier address, where communications
     between the service provider and the client termi-
     nal device use technology in which a reply to an in-
     quiry does not automatically include an explicit
     reference to the inquiry, the mediator functions
     comprising:
     preparing at least one inquiry message pertaining
     to the service provider, the at least one inquiry mes-
     sage including a choice selection inquiry: associat-
     ing a particular reply address to the at least one
     inquiry message, the particular reply address be-
     ing selected from a plurality of addresses at which
     the mediator receives communications regarding


     1   BookIT does not “present[] any meaningful argu-
 ment for the distinctive significance of any claim limita-
 tions other than those included in [claim 1 of the ’194
 patent],” so we treat that claim as representative. Elec.
 Power Grp., LLC, v. Alstom, S.A., 830 F.3d 1350, 1352 (Fed.
 Cir. 2016).
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 4                BOOKIT OY   v. BANK OF AMERICA CORPORATION



     the service provider; sending the at least one in-
     quiry message to the client terminal device;
     receiving, from the client terminal device, a reply
     to the at least one inquiry message at the particu-
     lar reply address associated with the received re-
     ply, the received reply including the client
     identifier address and a choice selection; determin-
     ing the choice selection in the received reply:
     identifying the at least one inquiry message that
     the client has responded to based on the particular
     reply address at which the received reply is re-
     ceived; and
     storing information pertaining to the received reply
     including the client identifier address, the reply ad-
     dress and information indicating the choice selec-
     tion, wherein the storing information includes
     relating the client identifier address, the reply ad-
     dress and information indicating the choice selec-
     tion, wherein the client identifier address, reply
     address and information indicating the choice se-
     lection are related to one another by storing the cli-
     ent identifier address, reply address and
     information in a multi-dimensional data structure.
 ’194 patent col. 12 ll. 26–65 (emphases added).
     BookIT asserted the patents against Bank of America
 Corporation and Bank of America N.A. (collectively, “Bank
 of America”) in the Northern District of Texas in Septem-
 ber 2017, contending that Bank of America’s mobile bank-
 ing applications provide automated alerts to users and
 thus infringe BookIT’s patents. Under BookIT’s original
 infringement contentions, Bank of America is the service
 provider, and its mobile banking application is the media-
 tor program, as required by the claims. J.A. 6290.
     The parties disagreed about the constructions of “ser-
 vice provider” and “mediator.” BookIT argued for broader,
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 BOOKIT OY   v. BANK OF AMERICA CORPORATION                  5



 plain meaning definitions, and Bank of America asserted
 that each term is instead limited to the narrower defini-
 tions set forth in the specification. The district court
 agreed with Bank of America and issued an order constru-
 ing “service provider” as “a provider of services with whom
 clients want to make appointments, reservations, or book-
 ings that comprises the resources for an appointment, res-
 ervation, or booking system to allocate;” Claim
 Construction Order, slip op. at 12. The court construed
 “mediator” as “a networked based service available to the
 service provider booking services over the network that
 provides additional semantics, translation and synchroni-
 zation services needed for communication of the infor-
 mation needed for a client to complete a transaction with a
 service provider.” Id., slip op. at 16.
     BookIT then served amended contentions, adding first
 as an “[a]lternative” theory that the “service provider” is
 not Bank of America, but “a third party provider of services
 with whom clients want to make appointments, reserva-
 tions, or bookings,” and, second, that Bank of America is
 the “service provider” even under the district court’s con-
 struction because it acts as “reservation engine” when us-
 ers want to complete banking transactions through the
 mobile application. J.A. 6293. The district court struck the
 amended contentions as untimely and not allowed by Local
 Rules 3-6 and 3-7, [J.A. 59] and when BookIT later served
 an expert report elaborating on the “reservation engine”
 theory, the district court struck the report for the same rea-
 son. [J.A. 62–63] The parties then stipulated to entry of
 judgment of noninfringement contingent on BookIT’s right
 to appeal. J.A. 2, 6571.
     This appeal followed. We have jurisdiction pursuant to
 28 U.S.C. § 1295(a)(1).
                         DISCUSSION
    We review a district court’s grant of summary judg-
 ment according to the law of the regional circuit. Kaneka
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 6                 BOOKIT OY   v. BANK OF AMERICA CORPORATION



 Corp. v. Xiamen Kingdomway Grp. Co., 790 F.3d 1298,
 1303 (Fed. Cir. 2015) (citing Halo Elecs., Inc. v. Pulse El-
 ecs., Inc., 769 F.3d 1371, 1377 (Fed. Cir. 2014)). In the Fifth
 Circuit, summary judgment is reviewed de novo, Triple Tee
 Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007)
 (citing Baker v. Am. Airlines, 430 F.3d 750, 753 (5th Cir.
 2005)), and is appropriate when, viewing the evidence in
 favor of the non-movant, there is no genuine dispute of ma-
 terial fact. Triple Tee, 485 F.3d at 261.
     Claim construction is an issue of law, which we review
 de novo. Shire Dev., LLC v. Watson Pharm., Inc., 787 F.3d
 1359, 1364 (Fed. Cir. 2015). We review de novo the district
 court’s findings of fact on evidence “intrinsic to the patent
 (the patent claims and specification[], along with the pa-
 tent’s prosecution history),” and review for clear error all
 other subsidiary findings of fact. Teva Pharm. USA, Inc. v.
 Sandoz, Inc., 135 S. Ct. 831, 841 (2015). A district court’s
 application of its own local rules is reviewed for an abuse
 of discretion. Keranos, LLC v. Silicon Storage Tech., Inc.,
 797 F.3d 1025, 1035 (Fed. Cir. 2015).
     BookIT’s primary argument is that the district court
 misconstrued both “service provider” and “mediator” by im-
 porting limitations from the specification. It asserts that
 the specification evinces no clear intent to limit the defini-
 tions of these terms and that each should be given its ordi-
 nary broad meaning.        BookIT also argues that the
 specification makes reference to booking systems only as a
 preferred embodiment of the invention.
     Bank of America responds that BookIT acted as its own
 lexicographer and defined service provider and mediator in
 the specification. It also rejects BookIT’s argument that
 these definitions pertain only to preferred embodiments.
     We agree with Bank of America. The district court’s
 constructions were taken from the definitions set forth in
 the specification. See ’194 patent col. 3 ll. 55–57 (“The ser-
 vice providers are those with whom clients want to make
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 BOOKIT OY   v. BANK OF AMERICA CORPORATION                      7



 appointments, reservations, or other bookings and com-
 prise the resources for the booking system to allocate.”); id.
 col. 3 ll. 59–64 (“As used in this application, the mediator
 is a network based service available to the service provider
 booking services over the network . . . .”). There can be no
 clearer definitions than those expressly recited in the pa-
 tent.
      BookIT maintains that this section only describes a
 preferred embodiment and is thus not limiting, but this ar-
 gument is meritless. These definitions appear in the third
 paragraph of the “Description of the Invention” section,
 apart from any mention of an embodiment, and lack any
 kind of qualification as “preferred” or “optional” compo-
 nents. See, e.g., id. col. 3 l. 65, col. 4 l. 6, col. 4 ll. 20–21.
 And the remainder of the specification explains that the in-
 vention “relates to exchanging and synchronizing infor-
 mation between booking systems and user terminal
 devices.” Id. col. 3 ll. 40–42; see also id. col. 1 l. 1. Thus,
 the district court was correct to conclude that BookIT de-
 fined these terms in the ’194 patent, and BookIT cannot
 revise its invention to suit current litigation needs. See
 Techtronic Indus. Co. v. Int’l Trade Comm’n, 944 F.3d 901,
 907 (Fed. Cir. 2019) (“[T]he purpose of claim construction
 is to ‘capture the scope of the actual invention’ . . . .” (quot-
 ing Phillips v. AWH Corp., 415 F.3d 1303, 1323–24 (Fed.
 Cir. 2005) (en banc))).
     BookIT also argues that the district court abused its
 discretion in striking its amended infringement conten-
 tions. In its view, the local rules of the Northern District
 of Texas should have allowed it to serve its amended con-
 tentions following claim construction because it believed in
 good faith that the amendment was allowed by virtue of the
 district court’s unexpected claim construction order (Rule
 3-6) and was otherwise permitted because good cause was
 shown (Rule 3-7). BookIT also maintains that the district
 court abused its discretion by striking its amended expert
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 8                BOOKIT OY   v. BANK OF AMERICA CORPORATION



 report because its overall infringement theory was un-
 changed.
      Bank of America responds that the district court did
 not abuse its discretion because the claim terms were
 plainly defined in the specification—and therefore easily
 foreseeable—and that good cause was not shown primarily
 because BookIT failed to amend its contentions after being
 put on notice of Bank of America’s proposed constructions.
 It further asserts that BookIT’s expert report was properly
 stricken because it pressed the same “reservation engine”
 infringement theory excluded from the amended conten-
 tions.
     We agree with Bank of America that the district court
 did not abuse its discretion. Local Rule 3-6 allows a party
 to serve amended contentions if it “believes in good faith
 that the presiding judge’s claim construction ruling so re-
 quires.” Appellant Br. 36. The district court has inter-
 preted this rule to allow amendments to infringement
 contentions “only if the movant can show that the claim
 construction adopted by the court was unexpected or un-
 foreseeable.” CommScope Techs. LLC v. Dali Wireless,
 Inc., 2018 WL 4566130, at *3 (N.D. Tex. 2018) (citations
 omitted). In view of our “broad deference to the trial court’s
 application of local procedural rules,” SanDisk Corp. v.
 Memorex Prods., Inc., 415 F.3d 1278, 1292 (Fed. Cir. 2005),
 we conclude that BookIT has failed to show an abuse of dis-
 cretion. The district court reasonably found that BookIT
 lacked a good faith belief that its amendment was required
 by the court’s claim construction order because the con-
 structions adopted by the court did not differ in any mate-
 rial way from those proposed by Bank of America—and,
 moreover, were essentially dictated by their definitions in
 the specification. Thus, the district court’s claim construc-
 tion order should not have surprised BookIT, and it has no
 excuse for failing to present its new infringement theories
 beforehand.
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 BOOKIT OY   v. BANK OF AMERICA CORPORATION                   9



     BookIT has likewise failed to show an abuse of discre-
 tion in the district court’s finding that its amendment
 lacked good cause under Local Rule 3-7, which allows a
 party to serve amended contentions upon such a showing
 of good cause. The district court reasonably found that
 BookIT’s failure to present its new infringement theory
 earlier was inexcusable, and that allowing it to serve new
 contentions after claim construction would be unfair to
 Bank of America. While BookIT argues that the amend-
 ments are crucial to its infringement case, we conclude that
 the district court did not abuse its discretion in finding that
 this consideration is outweighed by BookIT’s failure to pre-
 sent the theory earlier and the potential prejudice to Bank
 of America.
     Finally, we conclude that the district court’s decision to
 strike BookIT’s amended expert report was not an abuse of
 discretion. BookIT’s amended contention that a banking
 client’s use of the Bank of America mobile application
 amounts to a “reservation” or “booking” of funds facilitated
 by Bank of America as a “service provider” was both uncon-
 ventional and not disclosed in its original contentions.
 While BookIT argues that the expert report simply ex-
 pounded upon its original contentions, the district court did
 not abuse its discretion in finding that the “reservation en-
 gine” argument was considerably different from BookIT’s
 original contentions and thus impermissible under the
 court’s order striking the amended contentions.
                         CONCLUSION
     We have considered BookIT’s further arguments but
 find them unpersuasive. For the foregoing reasons, the
 judgment of the district court is
                         AFFIRMED
