In its latest defense against a patent infringement lawsuit, Keystone Automotive Industries — an LKQ subsidiary doing business as Elitek — has asked the court for permission to compel discovery that the plaintiff has allegedly refused to turn over and would prove patent invalidity.

The suit, filed on Aug. 9, 2021 in U.S. District Court for the Western District of Texas, alleges that Elitek, and parent company Keystone, are infringing on three of Repairify’s remote servicing and programming system and method patents on vehicles through an OBD or OBD-II interface.

Repairify seeks unspecified damages and an order enjoining LKQ from making, using, selling, and/or offering for sale Elitek’s EVS Plug-in Device and Remote Service.

U.S. District Judge Alan D. Albright previously denied Keystone’s motion to dismiss, disagreeing with Keystone’s contention that Repairify had failed to make a plausible claim of direct or indirect patent infringement.

On June 2, in email correspondence between the attorneys on the case, Repairify’s attorney said that Elitek’s motion, once it’s filed, would be opposed. 

“We have reviewed Elitek’s proposed amended invalidity contentions and do not believe Elitek has demonstrated sufficient good cause for the belated amendment. Specifically, we believe that many of the amendments are based on facts and existing law that have been available to Elitek for a long period of time, including prior to the service of its original Final Invalidity Contentions.”

A response from Repairify to the motion hadn’t been filed with the court as of Monday afternoon.

Elitek says at the time that the motion was filed, on June 9, neither party had taken depositions of each other nor from third-party subpoenaed companies DiscoverTec and Paragon.

Both parties have until Aug. 18 for discovery. Reports from expert witnesses are due Sept. 15 and the trial is set to begin May 6.

According to court documents, Elitek says documents and data from Paragon and Repairify state the development of asTech 1 was never completed and that the unsuccessful development led to the bankruptcy of Repairify’s predecessor, and therefore means the patents allegedly infringed upon are invalid. Repairify claims Elitek has infringed upon patents related to asTech 2 as well.

According to 35 U.S. Code Section 112, patents must “contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.”

Elitek argues that Repairify has failed to meet the requirements of Section 112. Amended contentions filed on June 9 “identify factual information Elitek discovered over the last four months that support its existing Section 112 contentions,” the motion states.

Between Feb. 7 and May 9, 2023, Elitek received more than 250,000 pages of documents related to the development of the asTech 1 and asTech 2 from Repairify, DiscoverTec, Copart, McGuireWoods, and Paragon. Elitek wrote in its new motion that the filing doesn’t include new arguments by Elitek but backs up its claims with technical, development, and design documents to invalidate Repairify’s claims.

All of Repairify’s asserted claims are about communication involving a “bi-directional communication link,” which fall under transitory signals under U.S. code making them unpatentable, according to Elitek.

“Moreover, courts have long held that laws of nature, natural phenomena, and abstract ideas are not patentable regardless of whether they fall within one of the four categories,” Elitek wrote. “The Asserted Claims are invalid under 35 U.S.C. § 101 because they are directed toward
an unpatentable abstract idea of communicating with and programming a remote device over a network.

“The Asserted Patents do not describe any new or improved connector, interface, tool, connection, protocol, network, or implementation thereof or describe any new or improved method of receiving, converting, or sending data.”

Elitek provides several examples of proof that claimed patents are invalid because bi-directional vehicle communications and remote software updates were patented before Repairify’s products, proving their products aren’t new or improved.

Elitek also says Repairify has failed to answer questions posed by the defendant that require answers for clarification and to prepare for trial, including information relevant to investigate whether the accused products have infringed on Repairify’s alleged patents. Instead, Repairify has either not answered or provided boilerplate objections that don’t justify its lack of response, Elitek said.

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