President Trump ~ National Association of Realtors and DeadWitness.com

President Trump ~ National Association of Realtors

During June 2008, Software Developer Pete Bennett gets called to testify in the matter of Keithley v. Realtor.com / Homestore.com / Move.com by the Big Law Firm Alston Burg 

By 2014 five of his relatives are dead, 

The Dead Constituents near Pete Bennett 

From National Association of Realtors 

Duties to the Public

Article 10 (Case Interpretations for Article 10)

REALTORS® shall not deny equal professional services to any person for reasons of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. REALTORS® shall not be parties to any plan or agreement to discriminate against a person or persons on the basis of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. (Amended 1/14)

REALTORS®, in their real estate employment practices, shall not discriminate against any person or persons on the basis of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. (Amended 1/14) [listen]

• Standard of Practice 10-1

When involved in the sale or lease of a residence, REALTORS® shall not volunteer information regarding the racial, religious or ethnic composition of any neighborhood nor shall they engage in any activity which may result in panic selling, however, REALTORS® may provide other demographic information. (Adopted 1/94, Amended 1/06)

• Standard of Practice 10-2

When not involved in the sale or lease of a residence, REALTORS® may provide demographic information related to a property, transaction or professional assignment to a party if such demographic information is (a) deemed by the REALTOR® to be needed to assist with or complete, in a manner consistent with Article 10, a real estate transaction or professional assignment and (b) is obtained or derived from a recognized, reliable, independent, and impartial source. The source of such information and any additions, deletions, modifications, interpretations, or other changes shall be disclosed in reasonable detail. (Adopted 1/05, Renumbered 1/06)

• Standard of Practice 10-3

REALTORS® shall not print, display or circulate any statement or advertisement with respect to selling or renting of a property that indicates any preference, limitations or discrimination based on race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. (Adopted 1/94, Renumbered 1/05 and 1/06, Amended 1/14)

• Standard of Practice 10-4

As used in Article 10 “real estate employment practices” relates to employees and independent contractors providing real estate-related services and the administrative and clerical staff directly supporting those individuals. (Adopted 1/00, Renumbered 1/05 and 1/06)

Article 11 (Case Interpretations for Article 11)

The services which REALTORS® provide to their clients and customers shall conform to the standards of practice and competence which are reasonably expected in the specific real estate disciplines in which they engage; specifically, residential real estate brokerage, real property management, commercial and industrial real estate brokerage, land brokerage, real estate appraisal, real estate counseling, real estate syndication, real estate auction, and international real estate.

REALTORS® shall not undertake to provide specialized professional services concerning a type of property or service that is outside their field of competence unless they engage the assistance of one who is competent on such types of property or service, or unless the facts are fully disclosed to the client. Any persons engaged to provide such assistance shall be so identified to the client and their contribution to the assignment should be set forth. (Amended 1/10) [listen]

• Standard of Practice 11-1

When REALTORS® prepare opinions of real property value or price they must:

1. be knowledgeable about the type of property being valued,
2. have access to the information and resources necessary to formulate an accurate opinion, and
3. be familiar with the area where the subject property is located

unless lack of any of these is disclosed to the party requesting the opinion in advance.

When an opinion of value or price is prepared other than in pursuit of a listing or to assist a potential purchaser in formulating a purchase offer, the opinion shall include the following unless the party requesting the opinion requires a specific type of report or different data set:

1. identification of the subject property
2. date prepared
3. defined value or price
4. limiting conditions, including statements of purpose(s) and intended user(s)
5. any present or contemplated interest, including the possibility of representing the seller/landlord or buyers/tenants
6. basis for the opinion, including applicable market data
7. if the opinion is not an appraisal, a statement to that effect
8. disclosure of whether and when a physical inspection of the property's exterior was conducted
9. disclosure of whether and when a physical inspection of the property's interior was conducted
10. disclosure of whether the REALTOR® has any conflicts of interest (Amended 1/14)

• Standard of Practice 11-2

The obligations of the Code of Ethics in respect of real estate disciplines other than appraisal shall be interpreted and applied in accordance with the standards of competence and practice which clients and the public reasonably require to protect their rights and interests considering the complexity of the transaction, the availability of expert assistance, and, where the REALTOR® is an agent or subagent, the obligations of a fiduciary. (Adopted 1/95)

• Standard of Practice 11-3

When REALTORS® provide consultive services to clients which involve advice or counsel for a fee (not a commission), such advice shall be rendered in an objective manner and the fee shall not be contingent on the substance of the advice or counsel given. If brokerage or transaction services are to be provided in addition to consultive services, a separate compensation may be paid with prior agreement between the client and REALTOR®. (Adopted 1/96)

• Standard of Practice 11-4

The competency required by Article 11 relates to services contracted for between REALTORS® and their clients or customers; the duties expressly imposed by the Code of Ethics; and the duties imposed by law or regulation. (Adopted 1/02)

Article 12 (Case Interpretations for Article 12)

REALTORS® shall be honest and truthful in their real estate communications and shall present a true picture in their advertising, marketing, and other representations. REALTORS® shall ensure that their status as real estate professionals is readily apparent in their advertising, marketing, and other representations, and that the recipients of all real estate communications are, or have been, notified that those communications are from a real estate professional. (Amended 1/08) [listen]

• Standard of Practice 12-1

REALTORS® may use the term “free” and similar terms in their advertising and in other representations provided that all terms governing availability of the offered product or service are clearly disclosed at the same time. (Amended 1/97)

• Standard of Practice 12-2

REALTORS® may represent their services as “free” or without cost even if they expect to receive compensation from a source other than their client provided that the potential for the REALTOR® to obtain a benefit from a third party is clearly disclosed at the same time. (Amended 1/97)

• Standard of Practice 12-3

The offering of premiums, prizes, merchandise discounts or other inducements to list, sell, purchase, or lease is not, in itself, unethical even if receipt of the benefit is contingent on listing, selling, purchasing, or leasing through the REALTOR® making the offer. However, REALTORS® must exercise care and candor in any such advertising or other public or private representations so that any party interested in receiving or otherwise benefiting from the REALTOR®’s offer will have clear, thorough, advance understanding of all the terms and conditions of the offer. The offering of any inducements to do business is subject to the limitations and restrictions of state law and the ethical obligations established by any applicable Standard of Practice. (Amended 1/95)

• Standard of Practice 12-4

REALTORS® shall not offer for sale/lease or advertise property without authority. When acting as listing brokers or as subagents, REALTORS® shall not quote a price different from that agreed upon with the seller/landlord. (Amended 1/93)

• Standard of Practice 12-5

Realtors® shall not advertise nor permit any person employed by or affiliated with them to advertise real estate services or listed property in any medium (e.g., electronically, print, radio, television, etc.) without disclosing the name of that Realtor®’s firm in a reasonable and readily apparent manner either in the advertisement or in electronic advertising via a link to a display with all required disclosures. (Adopted 11/86, Amended 1/16)

• Standard of Practice 12-6

REALTORS®, when advertising unlisted real property for sale/lease in which they have an ownership interest, shall disclose their status as both owners/landlords and as REALTORS® or real estate licensees. (Amended 1/93)

• Standard of Practice 12-7

Only REALTORS® who participated in the transaction as the listing broker or cooperating broker (selling broker) may claim to have “sold” the property. Prior to closing, a cooperating broker may post a “sold” sign only with the consent of the listing broker. (Amended 1/96)

• Standard of Practice 12-8

The obligation to present a true picture in representations to the public includes information presented, provided, or displayed on REALTORS®’ websites. REALTORS® shall use reasonable efforts to ensure that information on their websites is current. When it becomes apparent that information on a REALTOR®’s website is no longer current or accurate, REALTORS® shall promptly take corrective action. (Adopted 1/07)

• Standard of Practice 12-9

REALTOR® firm websites shall disclose the firm’s name and state(s) of licensure in a reasonable and readily apparent manner.

Websites of REALTORS® and non-member licensees affiliated with a REALTOR® firm shall disclose the firm’s name and that REALTOR®’s or non-member licensee’s state(s) of licensure in a reasonable and readily apparent manner. (Adopted 1/07)

• Standard of Practice 12-10

REALTORS®’ obligation to present a true picture in their advertising and representations to the public includes Internet content, images, and the URLs and domain names they use, and prohibits REALTORS® from:

1. engaging in deceptive or unauthorized framing of real estate brokerage websites;
2. manipulating (e.g., presenting content developed by others) listing and other content in any way that produces a deceptive or misleading result;
3. deceptively using metatags, keywords or other devices/methods to direct, drive, or divert Internet traffic; or
4. presenting content developed by others without either attribution or without permission, or
5. otherwise misleading consumers, including use of misleading images. (Adopted 1/07, Amended 1/18)

• Standard of Practice 12-11

 REALTORS® intending to share or sell consumer information gathered via the Internet shall disclose that possibility in a reasonable and readily apparent manner. (Adopted 1/07)

• Standard of Practice 12-12

REALTORS® shall not:

1. use URLs or domain names that present less than a true picture, or
2. register URLs or domain names which, if used, would present less than a true picture. (Adopted 1/08)

• Standard of Practice 12-13

The obligation to present a true picture in advertising, marketing, and representations allows REALTORS® to use and display only professional designations, certifications, and other credentials to which they are legitimately entitled. (Adopted 1/08)

Article 13 (Case Interpretations for Article 13)

REALTORS® shall not engage in activities that constitute the unauthorized practice of law and shall recommend that legal counsel be obtained when the interest of any party to the transaction requires it. [listen]

Article 14 (Case Interpretations for Article 14)

If charged with unethical practice or asked to present evidence or to cooperate in any other way, in any professional standards proceeding or investigation, REALTORS® shall place all pertinent facts before the proper tribunals of the Member Board or affiliated institute, society, or council in which membership is held and shall take no action to disrupt or obstruct such processes. (Amended 1/99) [listen]

• Standard of Practice 14-1

REALTORS® shall not be subject to disciplinary proceedings in more than one Board of REALTORS® or affiliated institute, society or council in which they hold membership with respect to alleged violations of the Code of Ethics relating to the same transaction or event. (Amended 1/95)

• Standard of Practice 14-2

REALTORS® shall not make any unauthorized disclosure or dissemination of the allegations, findings, or decision developed in connection with an ethics hearing or appeal or in connection with an arbitration hearing or procedural review. (Amended 1/92)

• Standard of Practice 14-3

REALTORS® shall not obstruct the Board’s investigative or professional standards proceedings by instituting or threatening to institute actions for libel, slander or defamation against any party to a professional standards proceeding or their witnesses based on the filing of an arbitration request, an ethics complaint, or testimony given before any tribunal. (Adopted 11/87, Amended 1/99)

• Standard of Practice 14-4

REALTORS® shall not intentionally impede the Board’s investigative or disciplinary proceedings by filing multiple ethics complaints based on the same event or transaction. (Adopted 11/88)

Duties to REALTORS®

Article 15 (Case Interpretations for Article 15)

REALTORS® shall not knowingly or recklessly make false or misleading statements about other real estate professionals, their businesses, or their business practices. (Amended 1/12) [listen]

• Standard of Practice 15-1

REALTORS® shall not knowingly or recklessly file false or unfounded ethics complaints. (Adopted 1/00)

• Standard of Practice 15-2

The obligation to refrain from making false or misleading statements about other real estate professionals, their businesses and their business practices includes the duty to not knowingly or recklessly publish, repeat, retransmit, or republish false or misleading statements made by others. This duty applies whether false or misleading statements are repeated in person, in writing, by technological means (e.g., the Internet), or by any other means. (Adopted 1/07, Amended 1/12)

• Standard of Practice 15-3

The obligation to refrain from making false or misleading statements about other real estate professionals, their businesses, and their business practices includes the duty to publish a clarification about or to remove statements made by others on electronic media the REALTOR® controls once the REALTOR® knows the statement is false or misleading. (Adopted 1/10, Amended 1/12)

Article 16 (Case Interpretations for Article 16)

REALTORS® shall not engage in any practice or take any action inconsistent with exclusive representation or exclusive brokerage relationship agreements that other REALTORS® have with clients. (Amended 1/04) [listen]

• Standard of Practice 16-1

Article 16 is not intended to prohibit aggressive or innovative business practices which are otherwise ethical and does not prohibit disagreements with other REALTORS® involving commission, fees, compensation or other forms of payment or expenses. (Adopted 1/93, Amended 1/95)

• Standard of Practice 16-2

Article 16 does not preclude REALTORS® from making general announcements to prospects describing their services and the terms of their availability even though some recipients may have entered into agency agreements or other exclusive relationships with another REALTOR®. A general telephone canvass, general mailing or distribution addressed to all prospects in a given geographical area or in a given profession, business, club, or organization, or other classification or group is deemed “general” for purposes of this standard. (Amended 1/04)

Article 16 is intended to recognize as unethical two basic types of solicitations:

First, telephone or personal solicitations of property owners who have been identified by a real estate sign, multiple listing compilation, or other information service as having exclusively listed their property with another REALTOR®, and

Second, mail or other forms of written solicitations of prospects whose properties are exclusively listed with another REALTOR® when such solicitations are not part of a general mailing but are directed specifically to property owners identified through compilations of current listings, “for sale” or “for rent” signs, or other sources of information required by Article 3 and Multiple Listing Service rules to be made available to other REALTORS® under offers of subagency or cooperation. (Amended 1/04)

• Standard of Practice 16-3

Article 16 does not preclude REALTORS® from contacting the client of another broker for the purpose of offering to provide, or entering into a contract to provide, a different type of real estate service unrelated to the type of service currently being provided (e.g., property management as opposed to brokerage) or from offering the same type of service for property not subject to other brokers’ exclusive agreements. However, information received through a Multiple Listing Service or any other offer of cooperation may not be used to target clients of other REALTORS® to whom such offers to provide services may be made. (Amended 1/04)

• Standard of Practice 16-4

REALTORS® shall not solicit a listing which is currently listed exclusively with another broker. However, if the listing broker, when asked by the REALTOR®, refuses to disclose the expiration date and nature of such listing; i.e., an exclusive right to sell, an exclusive agency, open listing, or other form of contractual agreement between the listing broker and the client, the REALTOR® may contact the owner to secure such information and may discuss the terms upon which the REALTOR® might take a future listing or, alternatively, may take a listing to become effective upon expiration of any existing exclusive listing. (Amended 1/94)

• Standard of Practice 16-5

REALTORS® shall not solicit buyer/tenant agreements from buyers/ tenants who are subject to exclusive buyer/tenant agreements. However, if asked by a REALTOR®, the broker refuses to disclose the expiration date of the exclusive buyer/tenant agreement, the REALTOR® may contact the buyer/tenant to secure such information and may discuss the terms upon which the REALTOR® might enter into a future buyer/tenant agreement or, alternatively, may enter into a buyer/tenant agreement to become effective upon the expiration of any existing exclusive buyer/tenant agreement. (Adopted 1/94, Amended 1/98)

• Standard of Practice 16-6

When REALTORS® are contacted by the client of another REALTOR® regarding the creation of an exclusive relationship to provide the same type of service, and REALTORS® have not directly or indirectly initiated such discussions, they may discuss the terms upon which they might enter into a future agreement or, alternatively, may enter into an agreement which becomes effective upon expiration of any existing exclusive agreement. (Amended 1/98)

• Standard of Practice 16-7

The fact that a prospect has retained a REALTOR® as an exclusive representative or exclusive broker in one or more past transactions does not preclude other REALTORS® from seeking such prospect’s future business. (Amended 1/04)

• Standard of Practice 16-8

The fact that an exclusive agreement has been entered into with a REALTOR® shall not preclude or inhibit any other REALTOR® from entering into a similar agreement after the expiration of the prior agreement. (Amended 1/98)

• Standard of Practice 16-9

REALTORS®, prior to entering into a representation agreement, have an affirmative obligation to make reasonable efforts to determine whether the prospect is subject to a current, valid exclusive agreement to provide the same type of real estate service. (Amended 1/04)

• Standard of Practice 16-10

REALTORS®, acting as buyer or tenant representatives or brokers, shall disclose that relationship to the seller/landlord’s representative or broker at first contact and shall provide written confirmation of that disclosure to the seller/landlord’s representative or broker not later than execution of a purchase agreement or lease. (Amended 1/04)

• Standard of Practice 16-11

On unlisted property, REALTORS® acting as buyer/tenant representatives or brokers shall disclose that relationship to the seller/landlord at first contact for that buyer/tenant and shall provide written confirmation of such disclosure to the seller/landlord not later than execution of any purchase or lease agreement. (Amended 1/04)

REALTORS® shall make any request for anticipated compensation from the seller/ landlord at first contact. (Amended 1/98)

• Standard of Practice 16-12

REALTORS®, acting as representatives or brokers of sellers/landlords or as subagents of listing brokers, shall disclose that relationship to buyers/tenants as soon as practicable and shall provide written confirmation of such disclosure to buyers/tenants not later than execution of any purchase or lease agreement. (Amended 1/04)

• Standard of Practice 16-13

All dealings concerning property exclusively listed, or with buyer/tenants who are subject to an exclusive agreement shall be carried on with the client’s representative or broker, and not with the client, except with the consent of the client’s representative or broker or except where such dealings are initiated by the client.

Before providing substantive services (such as writing a purchase offer or presenting a CMA) to prospects, REALTORS® shall ask prospects whether they are a party to any exclusive representation agreement. REALTORS® shall not knowingly provide substantive services concerning a prospective transaction to prospects who are parties to exclusive representation agreements, except with the consent of the prospects’ exclusive representatives or at the direction of prospects. (Adopted 1/93, Amended 1/04)

• Standard of Practice 16-14

REALTORS® are free to enter into contractual relationships or to negotiate with sellers/ landlords, buyers/tenants or others who are not subject to an exclusive agreement but shall not knowingly obligate them to pay more than one commission except with their informed consent. (Amended 1/98)

• Standard of Practice 16-15

In cooperative transactions REALTORS® shall compensate cooperating REALTORS® (principal brokers) and shall not compensate nor offer to compensate, directly or indirectly, any of the sales licensees employed by or affiliated with other REALTORS® without the prior express knowledge and consent of the cooperating broker.

• Standard of Practice 16-16

REALTORS®, acting as subagents or buyer/tenant representatives or brokers, shall not use the terms of an offer to purchase/lease to attempt to modify the listing broker’s offer of compensation to subagents or buyer/tenant representatives or brokers nor make the submission of an executed offer to purchase/lease contingent on the listing broker’s agreement to modify the offer of compensation. (Amended 1/04)

• Standard of Practice 16-17

REALTORS®, acting as subagents or as buyer/tenant representatives or brokers, shall not attempt to extend a listing broker’s offer of cooperation and/or compensation to other brokers without the consent of the listing broker. (Amended 1/04)

• Standard of Practice 16-18

REALTORS® shall not use information obtained from listing brokers through offers to cooperate made through multiple listing services or through other offers of cooperation to refer listing brokers’ clients to other brokers or to create buyer/tenant relationships with listing brokers’ clients, unless such use is authorized by listing brokers. (Amended 1/02)

• Standard of Practice 16-19

Signs giving notice of property for sale, rent, lease, or exchange shall not be placed on property without consent of the seller/landlord. (Amended 1/93)

• Standard of Practice 16-20

REALTORS®, prior to or after their relationship with their current firm is terminated, shall not induce clients of their current firm to cancel exclusive contractual agreements between the client and that firm. This does not preclude REALTORS® (principals) from establishing agreements with their associated licensees governing assignability of exclusive agreements. (Adopted 1/98, Amended 1/10)

Article 17 (Case Interpretations for Article 17)

In the event of contractual disputes or specific non-contractual disputes as defined in Standard of Practice 17-4 between REALTORS® (principals) associated with different firms, arising out of their relationship as REALTORS®, the REALTORS® shall mediate the dispute if the Board requires its members to mediate. If the dispute is not resolved through mediation, or if mediation is not required, REALTORS® shall submit the dispute to arbitration in accordance with the policies of their Board rather than litigate the matter.

In the event clients of REALTORS® wish to mediate or arbitrate contractual disputes arising out of real estate transactions, REALTORS® shall mediate or arbitrate those disputes in accordance with the policies of the Board, provided the clients agree to be bound by any resulting agreement or award.

The obligation to participate in mediation or arbitration contemplated by this Article includes the obligation of REALTORS® (principals) to cause their firms to mediate or arbitrate and be bound by any resulting agreement or award. (Amended 1/12) [listen]

• Standard of Practice 17-1

The filing of litigation and refusal to withdraw from it by REALTORS® in an arbitrable matter constitutes a refusal to arbitrate. (Adopted 2/86)

• Standard of Practice 17-2

Article 17 does not require REALTORS® to mediate in those circumstances when all parties to the dispute advise the Board in writing that they choose not to mediate through the Board's facilities. The fact that all parties decline to participate in mediation does not relieve REALTORS® of the duty to arbitrate.

Article 17 does not require REALTORS® to arbitrate in those circumstances when all parties to the dispute advise the Board in writing that they choose not to arbitrate before the Board. (Amended 1/12)

• Standard of Practice 17-3

REALTORS®, when acting solely as principals in a real estate transaction, are not obligated to arbitrate disputes with other REALTORS® absent a specific written agreement to the contrary. (Adopted 1/96)

• Standard of Practice 17-4

Specific non-contractual disputes that are subject to arbitration pursuant to Article 17 are:

1. Where a listing broker has compensated a cooperating broker and another cooperating broker subsequently claims to be the procuring cause of the sale or lease. In such cases the complainant may name the first cooperating broker as respondent and arbitration may proceed without the listing broker being named as a respondent. When arbitration occurs between two (or more) cooperating brokers and where the listing broker is not a party, the amount in dispute and the amount of any potential resulting award is limited to the amount paid to the respondent by the listing broker and any amount credited or paid to a party to the transaction at the direction of the respondent. Alternatively, if the complaint is brought against the listing broker, the listing broker may name the first cooperating broker as a third-party respondent. In either instance the decision of the hearing panel as to procuring cause shall be conclusive with respect to all current or subsequent claims of the parties for compensation arising out of the underlying cooperative transaction. (Adopted 1/97, Amended 1/07)
    
2. Where a buyer or tenant representative is compensated by the seller or landlord, and not by the listing broker, and the listing broker, as a result, reduces the commission owed by the seller or landlord and, subsequent to such actions, another cooperating broker claims to be the procuring cause of sale or lease. In such cases the complainant may name the first cooperating broker as respondent and arbitration may proceed without the listing broker being named as a respondent. When arbitration occurs between two (or more) cooperating brokers and where the listing broker is not a party, the amount in dispute and the amount of any potential resulting award is limited to the amount paid to the respondent by the seller or landlord and any amount credited or paid to a party to the transaction at the direction of the respondent. Alternatively, if the complaint is brought against the listing broker, the listing broker may name the first cooperating broker as a third-party respondent. In either instance the decision of the hearing panel as to procuring cause shall be conclusive with respect to all current or subsequent claims of the parties for compensation arising out of the underlying cooperative transaction. (Adopted 1/97, Amended 1/07)
    
3. Where a buyer or tenant representative is compensated by the buyer or tenant and, as a result, the listing broker reduces the commission owed by the seller or landlord and, subsequent to such actions, another cooperating broker claims to be the procuring cause of sale or lease. In such cases the complainant may name the first cooperating broker as respondent and arbitration may proceed without the listing broker being named as a respondent. Alternatively, if the complaint is brought against the listing broker, the listing broker may name the first cooperating broker as a third-party respondent. In either instance the decision of the hearing panel as to procuring cause shall be conclusive with respect to all current or subsequent claims of the parties for compensation arising out of the underlying cooperative transaction. (Adopted 1/97)
    
4. Where two or more listing brokers claim entitlement to compensation pursuant to open listings with a seller or landlord who agrees to participate in arbitration (or who requests arbitration) and who agrees to be bound by the decision. In cases where one of the listing brokers has been compensated by the seller or landlord, the other listing broker, as complainant, may name the first listing broker as respondent and arbitration may proceed between the brokers. (Adopted 1/97)
    
5. Where a buyer or tenant representative is compensated by the seller or landlord, and not by the listing broker, and the listing broker, as a result, reduces the commission owed by the seller or landlord and, subsequent to such actions, claims to be the procuring cause of sale or lease. In such cases arbitration shall be between the listing broker and the buyer or tenant representative and the amount in dispute is limited to the amount of the reduction of commission to which the listing broker agreed. (Adopted 1/05)

• Standard of Practice 17-5

The obligation to arbitrate established in Article 17 includes disputes between REALTORS® (principals) in different states in instances where, absent an established inter–association arbitration agreement, the REALTOR® (principal) requesting arbitration agrees to submit to the jurisdiction of, travel to, participate in, and be bound by any resulting award rendered in arbitration conducted by the respondent(s) REALTOR®’s association, in instances where the respondent(s) REALTOR®’s association determines that an arbitrable issue exists. (Adopted 1/07)

Explanatory Notes

The reader should be aware of the following policies which have been approved by the Board of Directors of the National Association:

In filing a charge of an alleged violation of the Code of Ethics by a REALTOR®, the charge must read as an alleged violation of one or more Articles of the Code. Standards of Practice may be cited in support of the charge.

The Standards of Practice serve to clarify the ethical obligations imposed by the various Articles and supplement, and do not substitute for, the Case Interpretations in Interpretations of the Code of Ethics.

Modifications to existing Standards of Practice and additional new Standards of Practice are approved from time to time. Readers are cautioned to ensure that the most recent publications are utilized.

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Copyright 2019, National Association of REALTORS®, All rights reserved. Form No. 166-288 (01/14 VG)

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Organization-National Association of Realtors /Connecting National Association of Realtors to Keithley v. Homestore

Connecting National Association of Realtors to Keithley v. Homestore 

The Dubious Phone Call and Time Wasting Project

When Federal Indictments were filed in regards to Operation Varsity Blues the missing link to me simmering losses with Keithley v. Homestore were revealed. The case was won based from elements of my 2004 proposal Mr. Kevin Keithly with my wording about the veracity of the patent viability.

In June 2008 I was contacted Alston Bird who represented the National Association of Realtors, Homestore, Realtor.com and Move.com with requests for deposition and testimony if needed.  I remember Mr. Keithley very well and his fraudulent requests for detailed proposal. 

During June 2008, I was faced with a sudden eviction at 1360 Peach Street due to being one day late on the rent.  The other is now defunct company called VitalWear who also suddently refused to pay for a project they specified.

After the court case was heard it was clear I'd been setup.

Soon I found myslelf in Walnut Creek setting up new offices when I endured another round of police harrassment.

story is about witness murders, private equity, mergers and acquisitions linked back to the Matter of Bennett v. Southern Pacific lost in 1989.  It was a winnable case as long the witnesses testified.  

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KEITHLEY v. HOMESTORE.COM, INC. (MOVE.COM)

KEITHLEY v. HOMESTORE.COM, INC.

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No. C 03-4447 SI.

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• View Case
• Cited Cases
• Citing Case

636 F.Supp.2d 978 (2008)

Kevin L. KEITHLEY and Tren Technologies Holdings, LLC, Plaintiffs, v. The HOMESTORE.COM, INC., et al., Defendants.

United States District Court, N.D. California.

November 19, 2008.

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Attorney(s) appearing for the Case

Scott Richard Mosko, Robert Francis McCauley, Finnegan, Henderson, Farabow, Garrett &, Stanford Research Park, Palo Alto, CA, for Plaintiffs.
Bruce J. Rose, Douglas R. Wilner, Jitendra Malik, Alston & Bird LLP, Benjamin S. Pleune, Charlotte, NC, Jennifer L. Shoda, Luther Kent Orton, Snyder Miller & Orton LLP, San Francisco, CA, Jud Graves, Alston & Bird LLP, Atlanta, GA, for Defendants.

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ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AS TO NONINFRINGEMENT AND INVALIDITY BASED ON INDEFINITENESS; DENYING OTHER MOTIONS AS MOOT

SUSAN ILLSTON, District Judge.

On November 14, 2008, the Court heard argument on various motions for summary judgment filed by defendants. For the reasons set forth below, the Court GRANTS defendants' motion as to noninfringement and invalidity based on indefiniteness. In light of the Court's resolution of that motion, the Court DENIES AS MOOT defendants' motion to amend the answer, and defendants' other motions for summary judgment.

BACKGROUND

The '025 patent, titled "Apparatus and Method for Interactive Communication for Tracking and Viewing Data," issued from a "continuation" patent application of an earlier application filed in October of 1993. The patent is generally directed to use of an information processing system for acquiring and displaying information, and describes and claims methods for acquiring and displaying real estate and property-related information (Claims 1 and 3) and a related system for tracking such information (Claim 5). Pleune Decl. Ex. 1 ('025 patent).

Plaintiffs filed suit in 2003, alleging that numerous websites operated by defendant Homestore.com (now Move, Inc.) ("Move"), infringe claims of the '025 patent. Defendant's websites are devoted almost entirely to home and real estate-related content, and include www.realtor.com, www.move.com, www.homestore.com, www.homebuilder.com, www.rentnet.com, www.springstreet.com, and www.seniorhousingnet.net. Mahnken Decl. ¶ 2. Plaintiffs have also sued the National Association of Realtors ("NAR") and the National Association of Homebuilders of the United States ("NAHB") by virtue of their involvement with Move in the www.realtor.com and www.homebuilder.com websites, respectively.

After this suit was filed, defendants instituted an ex parte reexamination of the '025 patent, submitting prior art that they believed showed that the PTO should never have issued the '025 patent. The PTO initially disallowed claims 1-5, but after receiving further written comments from plaintiff Keithley, on March 20, 2007, the PTO issued a reexamination certificate that confirmed the patentability of original claims 1-9 without amendment and deemed new dependent claims 10-15 to also be patentable over the prior art. Pleune Decl. Ex. 2. In an order filed September 10, 2007, Judge Jenkins construed 10 terms taken from Claims 1, 3 and 5.

DISCUSSION

Defendants have moved for summary judgment of noninfringement as to Claims 1 and 3, and invalidity based on indefiniteness as to Claim 5.

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A. Claim 1

Claim 1 provides, in its entirety:

1. A method of acquiring and displaying real estate information utilizing an information processing system containing file server means for serving files, said file server means having i/o means for receiving and transmitting data, and database storage means for storing information in database files, the method comprising the steps of:a) receiving real estate related information;b) storing digitized real estate data and related information as information records in said database storage means of said file server means in a manner in which data can be selectively accessed;c) receiving digital electronic first end user information from a first end user relating to said first end user's real estate needs;d) selectively providing digital electronic information of portions of said real estate data based on said digital electronic end user information;e) accessing data files by said first end users, said accessing data files by said first end users being a plurality of inquiries from individual first end users, said end user inquiries being the retrieving and viewing of text and/or graphic data from a database;f) generating a demographics information database by compiling and merging a plurality of first end user inquiries and storing said compiled and merged inquiries; andg) providing a second end user with said demographic information, said demographics information corresponding to the specific text and graphic data selected from said database files by said first end users.

'025 patent col. 14, ll. 34-65.

Defendants contend that step (e) of method Claim 1 describes, at least in part, an action to be taken by first end users acting independently in accessing the system. Defendants argue that "accessing data files by said first end users" means that first end users access data files, and that because this clause requires action by other parties, defendants can only be held liable if plaintiffs can show that the circumstances meet the requirements for a finding of joint infringement. Plaintiffs respond that Judge Jenkins' claim construction of step (e) requires a finding that this step, in its entirety, relates only to the system passively collecting data, and therefore does not require any action by first end users.

In construing step (e) of Claim 1, Judge Jenkins did not construe "accessing data files by said first end users." Judge Jenkins did construe the final clause in step (e)—"said end user inquiries being the retrieving and viewing of text and/or graphic data from a database"—to mean "said end user inquiries being requests for information that are passively monitored." Claim Construction Order at 5-8, 36. Plaintiffs rely on the following language from the Claim Construction Order:

In reviewing the current record, the Court finds [the inventor's] statements during the '025 Patent prosecution reexamination history to be compelling evidence in support of Plaintiffs' proposed construction. Plaintiffs' proposed construction incorporates the term passively monitored. To that end, it is undisputed that Keithley consistently explained in March 2005, and again in April 2005, that Claim 1(e) relates only to the system passively collecting data by watching the end user, rather than requiring the end user to respond to questions. Because the prosecution history is compelling and because Defendants' arguments to the contrary lack merit, the Court finds that the prosecution history weighs heavily in favor of Plaintiffs' proposed construction.

Order at 7-8.

Defendants respond that Judge Jenkins was only construing, and thus only discussing, the final clause in step 1(e) in its order and in no way indicated that the initial clause in 1(e) did not require action by first end users. Defendants argue that Judge Jenkins was distinguishing between "active" and "passive" monitoring of the first end users' actions when accessing data files ("Keithley's express clarification that the claim term at issue [the final clause of 1(e)] focuses on `watching the actions of the end user' and monitoring `the behavior of the first end user as they surf through the database.'" Id. at 7.) Defendants argue that these findings are completely consistent with the plain language of first end users accessing data files, and that in fact they require it because if first end users are not accessing data files, there is nothing for the system to monitor—actively or passively.

The Court agrees with defendants that step (e) requires action by first end users, in addition to passive monitoring by the system of those actions. Step 1(e) introduces the step of "accessing data files by said first end users," then further defines the accessing of the data files to be "a plurality of inquiries from individual first end users," which reiterates that the action is taken by first end users. The final clause in 1(e), which is the one construed by the Court, then further defines the end user inquiries, but does nothing to alter the fact established by the first two clauses that the end users make the inquiries,which is in turn how they access the files. Put differently, defining the inquiries does not change the fact that the inquiries must be made by the first end users; these inquiries are how the first end users access the data files, and they are the actions that the system passively monitors.

Defendants contend that if the Court finds that step 1(e) requires action by first end users, defendants do not infringe Claim 1 because there is no evidence to support a finding of "joint infringement." "[D]irect infringement requires a single party to perform every step of a claimed method." Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318, 1329 (Fed.Cir.2008) (citing BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373, 1380 (Fed.Cir.2007), and 35 U.S.C. § 271(a)). "[W]here 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 such that every step is attributable to the controlling party, i.e., the `mastermind.'" Id. "At the other end of this multi-party spectrum, mere `arms-length' cooperation will not give rise to direct infringement by any party." Id.; see also BMC, 498 F.3d at 1381 ("The concerns over a party avoiding infringement by arms-length cooperation can usually be offset by proper claim drafting. A patentee can usually structure a claim to capture infringement by a single party.").

In Muniauction, the Federal Circuit reversed a district court's denial of a motion for judgment as a matter of law following a jury verdict of infringement. The patent in Muniauction related to municipal bond auctions conducted over an electronic network, such as the Internet, and it was undisputed that no single party performed every step of the asserted claims. Id. at 1328-29. For example, at least one claimed step was performed by the bidders

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who inputted data and a majority of the remaining steps were performed by the auctioneer's system. Id. The jury found the defendant liable under a theory of joint infringement based on evidence of a "connection" between the defendant auctioneer and the bidders. Id. at 1329-30. The Federal Circuit reversed, holding "[t]hat Thomson controls access to its systems and instructs bidders on its use is not sufficient to incur liability for direct infringement." Id. at 1330. The court clarified that "the control or direction standard is satisfied in situations where the law would traditionally hold the accused direct infringer vicariously liable for the acts committed by another party that are required to complete performance of a claimed method." Id.

In BMC, the Federal Circuit affirmed a summary judgment of noninfringement where the plaintiff's evidence was insufficient to create a genuine issue of material fact as to whether the defendant controlled or directed the activity of third party debit networks. The patent in BMC claimed a method for processing debit transactions without a personal identification number and required the combined actions of multiple actors, including the payee's agent, a remote payment network, and the card-issuing financial institutions. 498 F.3d at 1375. The plaintiff proffered evidence to establish some relationship between the defendant (which processed financial transactions for clients as a third party) and the debit networks, such as the fact that the defendant provided data including debit card numbers, names, amounts of purchase, etc., to the debit networks. However, the court held that there was no genuine issue of material fact as to whether the defendant controlled or directed the activity of the debit networks because there was no evidence that the defendant also provided instructions or directions regarding the use of that data. Id. at 1381.

Here, the evidence is similar to that presented in Muniauction and BMC, and therefore is insufficient to raise a triable issue of fact regarding defendants' direction or control over the first end user consumers. Defendants have submitted the declaration of Tracy Mahnken, the Senior Vice President of Move. Mahnken Decl. (Docket No. 734). Mahnken describes Move's websites, and the relationship between the websites and users as follows:

In connection with its operation of the Move websites, Move acquires detailed information about properties for sale or rent and places this information into one or more databases that are accessible to people via the internet. I refer generally to these interested persons that access the property information through the Move websites as Consumers. Move receives the data relating to available properties from several different sources. . . .. . .Consumers access the Move websites via the internet. Ordinarily, Consumers enter search criteria for properties in which they may have an interest by filling in boxes (such as location, price, number of bedrooms, etc.) that appear on the consumer screens. Move's system then responds by displaying information about properties that meet the search criteria entered by the Consumer. Next, the Consumer can elect to retrieve more detailed information about some or all of the properties by clicking through various boxes that appear on the screen and viewing the information provided from the database or databases. Move offers the search features on its websites free of charge, and it presents basic information about property listings at no charge to the listing agents, brokers, home builders, or rental property owners.Other than the general Terms of Use posted on its websites, Move has no contracts with Consumers and neither directs nor exercises control over the searches Consumers conduct on the Move websites. The Terms of Use state that Move can terminate [the user's] access to and use of the Move Network (see printed page 3), but this provision is rarely, if ever, invoked. The Terms of Use explicitly state that no joint venture, partnership, employment, or agency relationship exists between [the user] and Move as a result fo the Terms of Use or accessing or using the Move network. (See printed page 6).. . .Move does not generally restrict or control users' access to the Move websites, nor does it require or direct its users to any particular function. Users of the Move websites do not need to download or configure any software to use the sites. Users also do not have to sign up or submit personal information to use the websites' search features.Although Consumers can register on the websites, registration affords Move no direction or control over the actions of the Consumers. Instead, registration merely affords Consumers the ability to save and return to searches that they have previously conducted and to listings they have previously identified. Each registered user has exclusive access to the specific searches and listings that they have saved. Unregistered users cannot keep former searches in this manner, but registered and unregistered users have equal access to identical information about all of the properties in the database.Real estate agents, brokers and rental property managers have the option to pay to enhance their property listings on the Move websites. That is, they have the option to pay to add more than basic information to their listings, which might include additional pictures or a longer than standard description of the property, for example. Real estate agents, brokers, rental property managers, and other advertising customers can also purchase banner advertisements to be displayed on the websites. I refer generally to such people and entities as Move's Business Users.Move enters into agreements with Business Users in one of two ways: (1) the Business User executes a purchase agreement or (2) Move and the Business User reach an oral agreement. The legal substance of Move's purchase agreements comes in the form of incorporating the Terms and Conditions for the particular product that the Business User is purchasing. Likewise, in the case of an oral agreement, the Business User is forwarded an order confirmation that refers the Business User to the particular Terms and Conditions that govern the product being purchased. In either case, the Terms and Conditions control the relationship between the parties. While the Terms and Conditions vary slightly depending on the product purchased, in no event do such Terms and Conditions address the Business User's use of the Move websites to search for or locate available properties or provide Move (or any other entity) with the right to direct or control such use. Instead those Terms and Conditions concern only the particular service the Business User has purchased—e.g., enhanced listings, etc. In every case, the Terms and Conditions that govern the relationship between Move and Business Users specifically state that [t]he parties are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is created by this Agreement. (See Exh. 2 ¶ 20.) . . . .Business Users are assigned a password, which gives them access to dashboards with information about their own specific listings and activity that Consumers and other Business Users do not have.Just as anyone who has access to the internet, Business Users can acts as Consumers by searching for properties on Move's websites. When Business Users access the websites as Consumers, their passwords are not applicable, and they have no greater or lesser access to the property information available on the websites than anyone else. In other words, no access codes are assigned to Consumers, and everyone acting as a Consumer on Move's websites has access to the same information about the properties listed there.. . .Those who use the Move websites do not jointly control the Move websites with Move, do not share in the profits from Move's websites and do not have any ownership interest in the Move websites.

Mahnken Decl. ¶¶ 3, 5-6, 8-13, 15.

Plaintiffs emphasize the following facts to contend that there are at least disputed issues of fact regarding the level of direction and control that Move exercises over the users. First, plaintiffs note that the "Terms and Conditions" on the websites state that it is "a binding contract between Move and you [the user]" that expressly grants users "the right to access Move's system." Id. at Ex. 1; see also id. ("Move grants you [the user] a limited license to access and use the Move Network and Content. . . ."). Plaintiffs also argue that Move limits and controls what users of Move's system can access by routing users to certain Web pages that only allow certain types of searches for real estate information and providing access to certain information (e.g., newly constructed homes) only if a real estate agent or builder has paid Move to provide users to access that "enhanced" information. Herbst Decl. Ex. 3 (Mahnken depo. at 135-38 (testifying that for a new home to be part of the group of all new homes that are searched at the Move website, someone must pay Move to have it included in the search pool)) (Docket No. 795). Plaintiffs also emphasize the fact that Move purposefully grants users access to its content so that it can then monitor the users' actions, tracking what files the users (registered or not) access via requests for information. Id. at Ex. 1 (Tygar Expert Report at 73-78).

Drawing all inferences in favor of plaintiffs, the Court finds that plaintiffs have not raised a triable issue of fact that Move "controls or directs" the users such that it is appropriate to hold Move vicariously liable for the acts of the users. In Muniauction, the plaintiff argued that the defendants directed and controlled the bidders by the following: (1) requiring bidders to install and configure software, including entry of a preassigned bidder ID and password; (2) connecting bidders and issuers to a server maintained by defendant; bidders used defendants' system to calculate and prepare bids for submission during the auction, transmitted those bids to defendants' server, and then financial advisers and issuers accessed the servers after conclusion of the auction to view the bid results online; (3) instructing bidders what to do throughout the auction process using detailed screen shots and written explanations; and (4) exercising contractual control over bidders by licensing the software, requiring that all bids "shall be irrevocable and shall constitute valid offers without a signature by an officer of the Licensee," and reserving the right to "modify or terminate access to BIDCOMP or PARITY at any time in the sole exercise of its discretion." Orton Decl. Ex. 5 at 12-13 (Brief of Plaintiff-Appellee Muniauction

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to the Federal Circuit) (Docket No. 733).

Thus, as in Muniauction, Move allows users access to its websites, but does not cause those users to access any particular information. Move's "Terms and Conditions" are analogous to the contracts in Muniauction which the Federal Circuit found insufficient. Indeed, the level of control exerted in Muniauction was arguably greater in that there the defendants required bidders to install and configure software in order to access the defendants' server, and all bidders were assigned a password. At oral argument, plaintiffs attempted to distinguish Muniauction by contending that the contracts in Muniauctiondid not specifically address the claim at issue, namely the "inputting" by the bidders. However, that is not a distinction drawn by the Muniauction court. Instead, the court reiterated that "the control or direction standard is satisfied in situations where the law would traditionally hold the accused direct infringer vicariously liable for the acts committed by another party that are required to complete performance of a claimed method." Muniauction, 532 F.3d at 1330. The Court concludes that Move does not perform every step of Claim 1, nor does Move have another party perform steps on its behalf. Further, plaintiffs have not articulated any theory under which Move is vicariously liable for the actions of the users of Move's websites. Accordingly, the Court concludes that defendants do not infringe Claim 1.

B. Claim 3

Defendants move for summary judgment of noninfringement of Claim 3 on the ground that Claim 3 provides consumer first end users with differing levels of access to information depending on the users' access codes. Defendants argue that there is no infringement because the extent of information available to all consumers on Move's websites is the same and is not determined by an "access code."

Claim 3 provides, in its entirety:

3. A method of acquiring and displaying property related information utilizing an information processing system containing media means for receiving analog and digitized data and transmitting digitized data; file server means for receiving data from said media means, receiving data inquiries and transmitting data in response to said data inquiries; databases and database storage means for sorting, storing and retrieving information received, the method comprising the steps of:a) receiving property related information at said media means;b) transmitting said property related information in appropriate format to said file server means;c) said file server means analyzing said property related information and storing said property related information in related database storage means;d) said file server means receiving an information request from multiple end users relating to the end users' information needs, the extent of information available to said end users being determined by said users' access code;e) selectively providing computerized information in response to said end users' information requests;f) said end users' information requests being a plurality of inquiries from individual end users, said end user inquiries being the retrieving and viewing of text and/or graphic data from a database; andg) generating and updating a demographics pattern database by compiling and merging a plurality of first end user inquiries and storing said compiled and merged inquiries.

'025 patent at col. 15, ll. 4-35.

Dependent Claim 4,1 provides in its entirety:

4. The method of claim 3, further comprising the steps ofh) receiving an information request from an agent relating to the agent's information needs, each agent having an access code, the extent of information available to said agent being determined by said agent's access code,i) selectively providing said information in response to said agent's information request,j) said agent's information requests being a plurality of inquiries from a plurality of individual agents, said end user inquiries being the retrieving and viewing of text and/or graphic data from a database;k) generating and updating further said demographics database information by compiling and merging a plurality of agents' inquiries and storing said compiled and merged inquiries in a demographics database, andwherein each time said server is accessed, data obtained through said access analysis is stored in the appropriate databases as demographic information, thereby continually updating and increasing the available demographics information within the databases.

'025 patent at col. 15, ll. 36-57.

Judge Jenkins construed the phrase "said end user inquiries being the retrieving and viewing of text and/or graphic data from a database" in step (f) of this claim (as in step (e) of Claim 1) to mean "said end user inquiries being requests for information that are passively monitored." Claim Construction Order at 5-8, 36. The Court also construed the phrase "compiling and merging a plurality of first end user inquiries" in step (g) of this claim to mean "collecting and combining the results of first end user inquiries." Id. at 12-15, 36. The Court did not construe the phrase "the extent of information available to said end users being determined by said users' access code" in step (d) of Claim 3.

Defendants contend that the reference to "said end users" in step (d) of Claim 3 refers only to persons acting as "first end users," in accessing property related information, even if those users also happen to be real estate agents. Defendants note that the specification distinguishes in various ways between "End Users" and "Real Estate Agents." An "End User" is defined as follows:

End User—The party viewing the database files. Typically an End User of real estate looking to lease and/or purchase real property. The End User generally has access to only limited files and can optionally have input capability to alter the files they are viewing. The End User can include viewers seeking ideas for home building, decorating, or remodeling. In addition, relocation companies or departments in corporations, architects, etc., are also included.

'025 patent, col. 5, ll. 5-12.

The specification defines "Real Estate Companies and Agents" as follows:

Real Estate Companies and Agents— The sales agent or facilitator of a real estate transaction and the primary user of the instant system. The Real Estate Agent has access to the instant system regardless of where the system is accessed.

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Id. col. 5, ll. 13-16. The specification also defines, inter alia, "Media," "Advertiser," and "Demographic Information Subscriber" and states that "It should be noted that a company or individual can fall into two or more of the foregoing categories." Id. col. 5, ll. 47-48. For example, "an architect could be an advertiser of their services and, at the same time, be an End User accessing the disclosed system to monitor design trends, new housing developments, and competitive practices." Id. col. 5, ll. 51-55.

Defendants argue that a real estate agent might sometimes act as an "End User" or "first end user"—like someone "looking to lease and/or purchase real property"—in requesting and receiving property information. Defendants argue that when real estate agents are acting as End Users, they would conceivably fall within the reach of Claim 3. They contend, however, that insofar as real estate agents are engaged in activity other than requesting and receiving property information as End Users, they are acting as Real Estate Agents, not as End Users within the meaning of this claim, and do not fall within the reach of Claim 3. Defendants argue that it is clear that Claim 3 does not encompass the activities of real estate agents as Real Estate Agents because dependent Claim 4 extends the methods of Claim 3 to additional steps performed by real estate agents.

Thus, defendants contend that Claim 3 requires a method that distinguishes between information that is available to end users based on different access codes held by different end users, while Claim 4 requires a method that further distinguishes the information that is available to real estate agents based on different access codes held by different agents. Defendants argue that Move's websites do not infringe claim 3 because every consumer on Move's websites has access to the same information about the properties listed there. Defendants note that there are no access codes assigned to Consumers, Mahnken Decl. ¶ 14, and although a Consumer can register, registration simply affords the Consumer the ability to save and return to searches conducted and listings identified: the overall information available to registered and unregistered users is identical. Id. ¶¶ 9-14.

Plaintiffs argue that defendants are improperly imposing limitations on Claim 3 that are not contained in the claim language. Plaintiffs contend that element 3(d) only requires that the "request" from the end user "relat[e] to the end users' information needs" and there is no justification for excluding real estate agents from that claim. Plaintiffs assert that including real estate agents as end users in Claim 3 does not render Claim 4 superfluous because plain language of Claim 4 indicates that the "demographics pattern database" is "further" generated and updated to reflect the passively monitored "agent" information requests. However, as defendants persuasively argue, if agents (as agents) were a subset of end users in Claim 3, the demographics pattern database of Claim 3 would already encompass passively monitored real estate agent information requests, and thus Claim 4 would not add anything to the database.

Plaintiffs also contend that even if the Court agrees that Claim 3 does not include Real Estate Agents, defendants' websites still infringe Claim 3—or at least there are disputes of fact sufficient to defeat summary judgment—because registered users can access saved listings, saved searches and other relevant links, while unregistered users cannot access such information. Defendants respond that access to saved listings and searches does not constitute to access to a different "extent of information." Defendants argue that it is undisputed that unregistered and registered

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users of its websites have access to the same universe of information, and thus "the extent of information available to said end users" is not determined by the those users' access codes. Defendants argue that allowing registered users to access a subset of the same information available to all users does not mean that the "extent" of the information available to registered users is different than the extent of the information available to unregistered users.

The Court agrees that plaintiffs have not raised a genuine issue of disputed fact. Where "the relevant aspects of the accused device's structure and operation are undisputed in [a] case, the question of whether [the accused device] literally infringes the asserted claims of the [] patent turns on the interpretation of those claims." K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1362 (Fed.Cir.1999) (citing Athletic Alternatives, Inc. v. Prince Mfg., Inc., 73 F.3d 1573, 1578 (Fed.Cir.1996)) ("Where, as here, the parties do not dispute any relevant facts regarding the accused product but disagree over [claim interpretation], the question of literal infringement collapses to one of claim construction and is thus amenable to summary judgment."). Although plaintiffs attempt to characterize the parties' dispute on this point as a factual one, the disagreement actually centers on the interpretation of "extent of information available." Here, it is undisputed that the overall information available to be searched by registered and unregistered users of defendants' websites is identical. It is also undisputed that registered users can save searches and access that information, while unregistered users cannot. The Court agrees with defendants' interpretation of the claim language, and holds that because "the extent of information available" to registered and unregistered users of defendants' websites is the same, defendants do not infringe Claim 3.

C. Claim 5

Defendants contend that Claim 5 is invalid under 35 U.S.C. § 112 ¶¶ 2, 6 because there is no structure—specifically no algorithm—that is adequately disclosed for the "demographics database updating means" in the means-plus-function limitation of that claim. Claim 5 provides, in its entirety:

5. A system of tracking real estate and real estate related demographic information using a computer network system comprising:a media unit, said media unit having:a multimedia computer;a digitizer, said digitizer receiving information from outside said network system and within said multimedia computer;i/o means,a server's unit, said server's unit having:a computer, said computer having storage capabilities;communication means, said communication means enabling said server to interact with remote terminals;a plurality of databases, at least one of said plurality of databases being an automatically updated demographic pattern database, said demographics pattern database being updated automatically by analyzing database information requests, said database information requests being a plurality of inquiries from a plurality of individual remote terminals, said remote terminal inquiries being the retrieving and viewing of text and/or graphic data from a database;demographic database updating means, said updating means automatically updating said demographics pattern database by compiling and merging a plurality of end user inquiries and storing said compiled and merged inquiries in said demographics pattern database.

'025 patent, col. 15, l. 58-col. 16, 1.18. Judge Jenkins construed the phrase "compiling and merging a plurality of first end user inquiries" in the last element of this claim to mean "collecting and combining the results of first end user inquiries." Claim Construction Order at 12-15. Substituting the Court's construction of that phrase results in the following:

demographic database updating means, said updating means automatically updating said demographics pattern database by collecting and combining the results of end user inquiries and storing said collected and combined results in said demographics pattern database.

The parties agree that "database demographics updating means" is a means-plus-function term that invokes 35 U.S.C. § 112 ¶ 6. As such, "the scope of that claim limitation [must] be defined by the structure disclosed in the specification plus any equivalents of that structure; in the absence of structure disclosed in the specification to perform those functions, the claim limitation would lack specificity, rendering the claim as a whole invalid for indefiniteness under 35 U.S.C. § 112 ¶ 2." Aristocrat Techs. Australia Pty Ltd. v. Int'l Game Tech., 521 F.3d 1328, 1331 (Fed.Cir.2008). "A determination of claim indefiniteness is a legal conclusion that is drawn from the court's performance of its duty as the construer of patent claims." Personalized Media Commc'ns, LLC v. Int'l Trade Comm'n, 161 F.3d 696, 705 (Fed.Cir.1998). "To the extent there are any factual findings upon which a trial court's indefiniteness conclusion depends, they must be proven by the challenger by clear and convincing evidence." Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1338 (Fed.Cir.2008).

The parties further agree that the specification discloses a "Server's computer 412" with a "database" as a corresponding structure for performing the claimed "updating" function. The question presented by defendants' motion is whether that disclosure is sufficient. Defendants contend that under two recent Federal Circuit cases, merely referring to a computer to provide the required structure is not sufficient. See generally Aristocrat, 521 F.3d 1328 (Fed.Cir.2008); Finisar Corp. v. The DirecTV Group, Inc., 523 F.3d 1323, 1340-41 (Fed.Cir.2008). Instead, defendants contend, the patent must disclose a specific algorithm to perform the function. Plaintiffs respond that the specification sufficiently discloses enough of an algorithm.

In Aristocrat, the district court held that a patent's disclosure of a general purpose, programmable microprocessor was not a sufficient disclosure of structure to satisfy § 112 ¶ b. The district court held that in a means-plus-function claim "in which the disclosed structure is a computer or a microprocessor programmed to carry out an algorithm, a corresponding structure must be a specific algorithm disclosed in the specification, rather than merely `an algorithm executed by a computer.'" Aristocrat, 521 F.3d at 1331-32. The district court held that because the specification lacked any specific algorithm or any step-by-step process for performing the claimed functions, the asserted structure was insufficient. Id. at 1332.

The Federal Circuit affirmed. The court first explained the general principle that "[i]n cases involving a computer-implemented invention in which the inventor has invoked means-plus-function claiming, this court has consistently required that the specification be more than simply a general purpose computer or microprocessor." Id. at 1333. "Because general purpose computers can be programmed to perform very different tasks in very different ways, simply disclosing a computer as

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the structure designated to perform a particular function does not limit the scope of the claim to `the corresponding structure, material, or acts' that perform the function, as required by section 112 paragraph 6." Id. On appeal, Aristocrat acknowledged that the only portion of the specification corresponding to the three functions of the "control means" was a statement that it was within the capability of a worker in the art "to introduce the methodology on any standard microprocessor base [sic] gaming machine by means of appropriate programming." Id. at 1334. The Federal Circuit held that this description "goes no farther than saying that the claimed functions are performed by a general purpose computer. The reference to `appropriate programming' imposes no limitation whatever, as any general purpose computer must be programmed. The term `appropriate programming' simply references a computer that is programmed so that it performs the function in question, which is to say that the function is performed by a computer that is capable of performing the function." Id.

The Federal Circuit rejected Aristocrat's arguments that the specification disclosed algorithms that were sufficient to constitute a qualifying disclosure of structure. Aristocrat contended that claim language referring to "the game control means being arranged to pay a prize when a predetermined combination of symbols is displayed in a predetermined arrangement of symbol positions selected by a player" implicitly disclosed an algorithm for the microprocessor. The Federal Circuit disagreed, holding that this language simply describes the function to be performed, not the algorithm by which it is performed. Id. The court also rejected Aristocrat's "real point," which was that devising an algorithm to perform that function was within the capability of one skilled in the art, and thus it was not necessary to disclose any particular algorithm. Id. The court also rejected Aristocrat's reliance on equations and mathematical descriptions contained in the claim language, holding that this language "is not an algorithm that describes how the function is performed, but is merely a mathematical expression that describes the outcome of performing the function." Id. The court concluded that Aristocrat "has disclosed, at most, pictorial and mathematical ways of describing the claimed function of the game control means. That is not sufficient to transform the disclosure of a general purpose microprocessor into the disclosure of sufficient structure to satisfy section 112 paragraph 6." Id. at 1335.

Shortly after Aristocrat, the Federal Circuit decided Finisar Corporation v. The DirecTV Group, Inc., 523 F.3d 1323 (Fed.Cir.2008). There, the court explained that for computer-implemented means-plus-functions claims where the disclosed structure is a computer programmed to implement an algorithm, the patentee may express that algorithm "in any understandable terms including as a mathematical formula, in prose, or as a flow chart, or in any other manner that provides sufficient structure." Id. at 1340 (internal citation omitted). In Finisar, the claims at issue included the limitation "database editing means . . . for generating . . . and for embedding. . . ." Id. The patent disclosed the following purported structure corresponding to this claim term: "software 132 (executed by CPU 130) generates a hierarchical set of indices referencing all the data in the information database 112 and embeds those indices in the information database." Id. The court held that this language was insufficient, as it "provides nothing more than a restatement of the function, as recited in the claim." Id. "Simply reciting `software' without providing some detail about the means to accomplish the function is not enough." Id. at 1340-41. Similarly, the court noted that the specification described

[636 F.Supp.2d 991]

an alternate embodiment wherein a block of packet ID values are assigned to an offline information provider, which then organizes them into a database. Id. at 1340. However, "[o]nce again, the district court correctly noted that this passage provides no algorithm or description of structure corresponding to the claimed function." Id.

Here, plaintiffs argue that the specification discloses a server that runs a database program that executes typical database functions to automatically update demographics pattern (or information) databases by compiling, merging, and storing all "viewer selections" (information requests) by end users. Plaintiffs argue that one skilled in the art2 would understand from reading the '025 specification that the disclosed server is executing available database programs, and that such programs at the time of the invention had a system for automatic indexing and otherwise efficient insertion and restructuring and extraction of data. Plaintiffs rely on the following language:

The mainframe, or computer used as a Server, can be any one of many known computers, such as an IBM/370 running MVS and VTAM and any of many available database and support programs, or a Sun workstation running UNIX and any of many database programs available. '025 patent, col. 12, ll. 22-26.The software for configuring the system is easily built using standard database development techniques well known to those skilled in the art, based on the configurations described herein and the selection of the desired options. Id. at col. 12, ll. 51-54.Viewership and response patterns can be retrieved by advertisers, agents, and subscribers via the disclosed system's demographic retrieval databases. Id. at col. 11, ll. 21-25.In all cases, viewer selections are captured and stored by the Server. Id. at col. 4, ll. 24-26.All files are stored on their respective databases, providing easy access and manipulation. The databases are continually updated to ensure accurate, up-to-date information at all times. Id. at col. 7, ll. 30-33.Because each property profile and advertisement regardless of sponsor has its own identification code and each user of the disclosed system has their own access code, the instant invention provides detailed data on all aspects of viewership and response. When, where, and how often an advertisement and/or profile is viewed is instantly recorded by the disclosed system. Id. at col. 11, ll. 12-19.The Server stores information regarding property profiles, real estate professionals, community profiles, real estate financing, local businesses and services, and demographic retrievals . . . . Id. at col. 4, ll. 2-5.Server—The computer system which stores all files. Id. at col. 5, ll. 23-25.Software for controlling the communication with the Server can be Windows based, and is easily built using known techniques based on the configurations described herein. Id. at col. 12, ll. 58-61.Viewership and response patterns can be retrieved by advertisers, agents, and subscribers via the disclosed system's demographic retrieval databases. Id. at col. 11, ll. 21-25.[A] server which has an input/output device for receiving and transmitting data, database files, and database storage. Id. at Abstract.[T]he system utilizes an information processing system containing a Server with i/o for receiving and providing data and database storage. Id. at col. 4, ll. 11-13.

Plaintiffs argue that a person of ordinary skill in the art would recognize steps disclosed in the specification for performing the claimed "updating" function. Plaintiffs argue that such a person would recognize that the disclosed server is executing available database programs with the capabilities of compiling, merging, and storing information and generating, maintaining and/or updating a database. Plaintiffs further argue that such a person would recognize that the server is programmed to passively monitor end user requests for information and to compile, merge and store the collected information in a database that is continually updated.

Plaintiffs cite the declaration of their expert, Professor Justin Tygar, who states "I believe that one of ordinary skill at the time of the invention reading the '025 specification would understand that corresponding structures to be the "Server's computer 412." Tygar Decl. Ex. C at 87. Dr. Tygar acknowledges that "[t]he '025 specification does not expressly call out the algorithm," but that "[o]ne skilled in the art reading the '025 specification (including the drawings) would understand how the claimed databases were generated as well as how they are maintained, including being updated, by the Server's computer 412." As previously explained herein, the specification describes that all `viewer selections' (information requests) are captured and that data is compiled, merged, and stored into the claimed demographics information (pattern) databases, which are thereafter `continually updated to ensure accurate, up-to-date information at all times.'" Id. at 88. Dr. Tygar explains,

As I have described, the specification amply describes the claimed databases [citation omitted], and the specification (including the graphical environment diagram of Figure 1) associates those databases with the Server's Computer 412, i.e., one of skill would interpret Figure 1 as indicating that the Server's computer 412 manages the databases. See, e.g., Figure 1; see col. 6, ll. 5-9. One of skill in the art would have understood from at least, for example, existing technical knowledge, that the claimed databases (like any database) would need updating in order to remain reasonably useful, and that, based on the specification's disclosure, the required updating would have been performed by the Server's computer 412 alone with other typical database functions. The '025 specification expressly refers to updating databases. See col. 7, ll. 33-34 (describing that databases are continually updated to ensure accurate, up-to-date information at all times); see also e.g., col. 12, ll. 51-61 (The software for configuring the system is easily built using standard database development techniques well known to those skilled in the art, based on the configurations described herein and the selection of the desired options. . . . Software for controlling the communication with the Server can be Windows based, and is easily built using known techniques based on the configurations described herein.).

Id. at 87-88.

In contrast, defendants' expert opines that a person or ordinary skill would not know what falls within the scope of the "demographic database updating means" element of Claim 5. Meldal Decl. Ex. 1 at 93. Dr. Meldal states,

[T]he '025 patent does not specify a specific algorithm for automatically updating a demographics pattern database by compiling and merging a plurality of end user inquiries and storing said compiled and merged inquiries in said demographic pattern database. The '025 patent specification includes only one line relating to updating a database, stating that [t]he databases are continually updated to ensure accurate, up-to-date information at all times. (Col. 7, lns. 32-33). But the specification does not recite structure that performs this function. And, while the specification does make a passing reference to database support program, it says little about these programs. (Col. 12, lns. 22-27.) For example, the specification does not state whether these support programs actually perform the function of updating the databases. Nor does the specification list the algorithm by which the updating occurs.

Id.

"It is certainly true that the sufficiency of the disclosure of algorithmic structure must be judged in light of what one of ordinary skill in the art would understand the disclosure to impart." Aristocrat, 521 F.3d at 1337. Even accepting plaintiffs' (and Dr. Tygar's) view, however, the Court finds that the specification does not sufficiently describe a structure to perform the "updating" function. Plaintiffs assert that the specification discloses a structure—the Server 412—and that one of ordinary skill in the art would have understood that the Server maintains databases, and that such a person would have been able to build "software for configuring the system . . . using standard database development techniques well known to those skilled in the art, based on the configurations described herein and the selection of the desired options." Tygar Decl. Ex. C at 87. However, the Federal Circuit has repeatedly held that for a computer-implemented function, it is insufficient to simply disclose a general purpose computer that can be programmed by a person of ordinary skill in the art to carry out the claimed function. See, e.g., 521 F.3d at 1337 ("It is not enough for the patentee simply to state or later argue that persons of ordinary skill in the art would know what structures to use to accomplish the claimed function."); see also Biomedino, LLC v. Waters Tech. Corp., 490 F.3d 946, 953 (Fed.Cir.2007) ("The inquiry is whether one skilled in the art would understand the specification itself to disclose a structure, not simply whether that person would be capable of implementing that structure.").

Although plaintiffs are correct that the patent need not disclose source code, the patent must disclose the steps showing how the updating of the demographic database occurs. There is no such disclosure in the patent. Instead, as in Aristocrat, much of the language relied on by plaintiffs (and quoted above) simply describes the claimed function. For example, "Viewership and response patterns can be retrieved by advertisers, agents, and subscribers via the disclosed system's demographic retrieval databases," "In all cases, viewer selections are captured and stored by the Server," "the instant invention provides detailed data on all aspects of viewership and response. When, where, and how often an advertisement and/or profile is viewed is instantly recorded by the disclosed system," and "All files are stored on their respective databases, providing easy access and manipulation. The databases are continually updated to ensure accurate, up-to-date information at all times," all simply describe the function of monitoring, updating and storing viewership and response patterns.

The Court finds instructive Medical Instrumentation & Diagnostics Corporation

[636 F.Supp.2d 994]

v. Elekta AB, 344 F.3d 1205, 1211-12 (Fed. Cir.2003). In that case, the patent related to a system for planning surgical treatment using a presentation of images from multiple sources. The district court construed the function of the "means for converting said plurality of images into a selected format" to be converting multiple acquired images into a particular selected digital format, and found that the structures corresponding to this function were a "VME bus based framegrabber video display board," a computer video processor ("CVP"), and "[s]oftware routines for converting digital-to-digital known to those of skill in the art." On appeal, the Federal Circuit agreed that the specification disclosed the structures of a framegrabber and the CVP, but disagreed that the specification disclosed the structure of software for digital-to-digital conversion. The Federal Circuit explained:
In this case, even the district court acknowledged that the link between software and the converting function was not completely clear. The court stated that the specification is not very explicit in its disclosures of a means for performing a digital-to-digital conversion. Nevertheless, the court concluded that because techniques for performing those conversions were known to those of skill in the art at the time the application was filed, a person of skill in the art would understand software to be a corresponding structure for the converting function. It is of course correct that to answer the question of whether the specification adequately describes and links structure that corresponds to the claimed function, we must look at the disclosure from the point of view of one skilled in the relevant art. Budde [v. Harley-Davidson, Inc.], 250 F.3d [1369] at 1376 [(Fed.Cir. 2001)]. MIDCO presented some evidence before the district court that a skilled programmer at the time of the application's filing could have written a program for digital-to-digital conversion of image size, and we have no reason to doubt that assertion. In discussing software programs in the medical imaging field, MIDCO's expert explained that a software programmer having ordinary skill in the art . . . would be aware of the sources of routines, modules and even small programs . . . that could be incorporated into the larger program being developed. These programs were widely available from well-known sources or available from other software developers.... MIDCO then provided examples of programs for digital-to-digital image conversion (none of which are cited in the patents) that would have been available at the time the patent was filed.However, that is not the correct inquiry. The correct inquiry is to look at the disclosure of the patent and determine if one of skill in the art would have understood that disclosure to encompass software for digital-to-digital conversion and been able to implement such a program, not simply whether one of skill in the art would have been able to write such a software program. See Atmel Corp. v. Info. Storage Devices, Inc., 198 F.3d 1374, 1380 (Fed.Cir.1999) ([I]nterpretation of what is disclosed must be made in light of the knowledge of one skilled in the art.); see also Omega Eng'g, Inc. v. Raytek Corp., 334 F.3d 1314, 1331-32 (Fed.Cir.2003) (explaining that statements from experts cannot be used to rewrite the patent's specification to create a clear link where the language in the specification provides none); Medtronic, Inc. v. Advanced Cardiovascular Sys., Inc., 248 F.3d 1303, 1313 (Fed.Cir. 2001) (finding particular structures not to be corresponding structures because one skilled in the art would not perceive any clear link or association between these structures and the [recited] function of connecting adjacent elements together). It is important to determine whether one of skill in the art would understand the specification itself to disclose the structure, not simply whether that person would be capable of implementing that structure. See Atmel, 198 F.3d at 1382 (Fulfillment of the § 112, ¶ 6 trade-off cannot be satisfied when there is a total omission of structure. There must be structure in the specification.). Indeed, the requirement of looking to the disclosure to find the corresponding structure comes from section 112, paragraph 6 itself. It is not proper to look to the knowledge of one skilled in the art apart from and unconnected to the disclosure of the patent.

(Medical Instrumentation & Diagnostics Corp. v. Elekta AB, 344 F.3d at 1211-12).

Here, as in Medical Instrumentation, the specification does not specifically disclose any structure, such as specific types of software, to perform the "updating" function. Plaintiffs' contention that a person of ordinary skill in the art would know how to build "software for configuring the system . . . using standard database development techniques well known to those skilled in the art, based on the configurations described herein and the selection of the desired options," Tygar Decl. Ex. C at 87, is precisely the argument rejected in Medical Instrumentation. "The correct inquiry is to look at the disclosure of the patent and determine if one of skill in the art would have understood that disclosure to encompass software for digital-to-digital conversion and been able to implement such a program, not simply whether one of skill in the art would have been able to write such a software program." Medical Instrumentation, 344 F.3d at 1212.

Accordingly, the Court holds that because Claim 5 does not sufficiently disclose a structure for carrying out the "updating" function, that claim is invalid for indefiniteness under 35 U.S.C. § 112 ¶ 2. This conclusion is a legal one, based on this Court's "performance of its of its duty as the construer of patent claims," Personalized Media Commc'ns, LLC v. Int'l Trade Comm'n, 161 F.3d at 705; no factual findings are required.

CONCLUSION

For the foregoing reasons and for good cause shown, the Court hereby GRANTS defendants' motion for summary judgment of noninfringement and invalidity. (Docket No. 732). The Court DENIES AS MOOT defendant's motion to amend the answer, as well as the other motions for summary judgment filed by defendants. (Docket No. 627, 729, 764, & 776).

IT IS SO ORDERED.

FootNotes

1. Plaintiffs do not allege infringement of Claim 4.

2. The parties generally agree that a person of ordinary skill in the art is a person with a bachelor's degree or its equivalent in engineering with some training in or experience with computers and networkers computers. See Tygar Decl. ¶ 3; Meldal Decl. ¶ 23.

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