Serverside Group Ltd. v. Tactical 8 Technologies, L.L.C. (985 F. Supp. 2d 900, 2013)

United States District Court for the Northern District of Iowa 2013-12-09

Commerce and Trade

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE AFFIDAVIT OF PLAINTIFFS’ EXPERT

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I. INTRODUCTION........................................................904

II. THE MOTION TO STRIKE...............................................905

A. Procedural History..................................................906

B. Arguments Of The Parties............................................907

1. The Iowa Defendants’ opening argument...........................907

2. Serverside’s response.............................................908

3. The Iowa Defendants’ reply.......................................908

C. Legal Analysis......................................................908

1. Rule 26 and Rule 37 standards....................................908

2. Rule 56 standards................................................913

3. Summary .......................................................914

III. THE MOTION FOR SUMMARY JUDGMENT..............................914

A. Context Of The Motion...............................................914

1. The patents-in-suit...............................................914

2. The key patent claims at issue....................................915

3. The patent claim terms at issue...................................915

B. Factual Background.................................................917

1. The parties’factual allegations and denials........................917

2. The accused system..............................................917

a. Parts and users of the CreSMyCard system.....................917

b. Customization by a remote customer...........................917

c. Processing of the customized card by the financial institution.................................................920

d. Card manufacturing..........................................921

e. ’’Instant”production methods.................................921

f. Use of hash codes and encryption in the accused system.........922

C. Standards For Summary Judgment...................................922

D. Standards For Patent Infringement...................................923

E. Grounds For Summary Judgment.....................................926

1. Infringement under the doctrine of equivalents.....................926

2. Implications of non-infringement of the first claims.................927

3. Absence of “a customer identifier that corresponds to the remote customer that personalized said image,” as claimed in the '199 and the '490 patents .......................................929

a. Arguments of the parties......................................929

b. Analysis.....................................................930

4. Absence of a “customer identifier [that] comprises an identifier selected from a secure unique identifier and a one-way code,” as claimed in the '199 patent....................................932

a. Arguments of the parties......................................933

b. Analysis.....................................................934

i. Secure unique identifier................................934

it. One-way code..........................................938

5. Absence of a “customer identiñer [that] encompasses encrypted customer information,” as claimed in the '490patent..............939

a. Arguments of the parties......................................940

b. Analysis.....................................................941

6. Summary .......................................................943

IV. CONCLUSION ..........................................................943

This patent-infringement action, alleging infringement of two of the plaintiffs’ patents, both entitled “Computerized Card Production Equipment,” is before me on the defendants’ motion for summary judgment and the defendants’ motion to strike the affidavit of the plaintiffs’ expert offered in resistance to the defendants’ motion for summary judgment. I previously construed disputed terms of the patents in a Markman ruling. Thus, the question on the defendants’ motion for summary judgment is whether their accused “system for the customization of financial transaction cards” infringes the patents as I have construed them. The preliminary question, however, is whether or not I can consider the affidavit of the plaintiffs’ expert in deciding the summary judgment motion, where the defendants contend that the affidavit presents new and previously undisclosed expert opinions.

I. INTRODUCTION

On June 22, 2011, plaintiffs Serverside Group Limited and Serverside Graphics, Inc., collectively “Serverside,” filed the original Complaint in this patent infringement action, against fifteen defendants, in the United States District Court for the District of Delaware (the Delaware action). Serverside’s Complaint alleges infringement of certain claims of its U.S. Patent No. 7,931,199 (the '199 patent), entitled “Computerized Card Production Equipment,” in Count I, and infringement of certain claims of its related U.S. Patent No. 7,946,490 (the '490 patent), also entitled “Computerized Card Production Equipment,” in Count II. Somewhat more specifically, Serverside alleges that the Iowa Defendants, defendants Tactical 8 Technologies, L.L.C., now known as Ban-no, L.L.C. (Banno), and Bank of Iowa Corporation (BIC), are infringing the patents-in-suit by using the “Cre8MyCard system,” which the parties agree is an Internet-based system that allows for the customization of financial transaction cards from financial institutions, such as BIC, that are Banno’s customers.

On February 17, 2012, United States District Court Judge Richard Andrews entered a Memorandum Opinion in the Delaware action, in response to motions by several of the defendants, in which he concluded, inter alia, that the claims against the Iowa Defendants should be transferred to this court, pursuant to 28 U.S.C. § 1406(a). That same day, Judge Andrews entered a separate Order transferring the claims against the Iowa Defendants to this court pursuant to 28 U.S.C. § 1406(a). After this action was transferred to this district, it was initially assigned to Chief United States District Court Judge Linda R. Reade, but it was eventually reassigned to me on August 29, 2012. After a Markman hearing on February 20, 2013, I entered my ruling on construction of disputed patent claim terms on- March 4, 2013. See Serverside Group Ltd. v. Tactical 8 Techs., L.L.C., 927 F.Supp.2d 623 (N.D.Iowa 2013).

On August 12, 2013, the Iowa Defendants filed the first of the motions now before me, the Iowa Defendants’ Motion For Summary Judgment (docket no. 133), in which the Iowa Defendants assert that there are no genuine issues of material fact, and that they are entitled to judgment as a matter of law, that their Cre8MyCard system does not infringe the independent claims in claim 1 of the '199 patent and claim 1 of the '490 patent, so that they also are not infringing any dependent claims of those patents. Server-side filed a Resistance (docket no. 134) to that Motion on September 5, 2013, and the Iowa Defendants filed a Reply (docket no. 136) in further support of that Motion on September 16, 2013.

On September 16, 2013, the Iowa Defendants filed the second motion now before me, their Motion To Strike (docket no. 137), in which they argue that the affidavit of Serverside’s expert, Alex Cheng, offered by Serverside in support of its Resistance to the Motion For Summary Judgment, must be stricken, because it contains new opinions not properly disclosed previously pursuant to Rule 26(a)(2)(B)(i), and that portions of Serverside’s Statement Of Additional Material Facts that rely, in whole or in part, on Mr. Cheng’s affidavit must also be stricken. Serverside filed its Resistance (docket no. 139) to that Motion on October 3, 2013, and the Iowa Defendants filed a Reply (docket no. 142), in further support of that Motion, on October 15, 2013.

Trial in this matter is set to begin on January 21, 2014, so I had hoped to address the pending motions as soon as they were ripe. However, other matters interfered with that plan, including a Verified Complaint And Petition For Return Of Children, seeking return to Mexico of children allegedly wrongfully retained in the United States, filed November 7, 2013, which required expedited proceedings under international and federal law. For much the same reason, my crowded schedule has not allowed me to accommodate the Iowa Defendants’ request for oral arguments on their Motions sufficiently in advance of the scheduled trial. I find the parties’ written submissions fully address the issues raised, however, so that I have resolved the pending motions on the parties’ written submissions.

II. THE MOTION TO STRIKE

I must first resolve the Iowa Defendants’ Motion To Strike, as it pertains to the record that I may consider on the Iowa Defendants’ Motion For Summary Judgment. I will begin my analysis of that Motion by briefly summarizing the procedural history concerning disclosure of experts.

A. Procedural History

In accordance with the Scheduling Order (docket no. 112), Serverside served its Claim Chart setting forth its infringement contentions on October 5, 2012, and the Iowa Defendants served and filed their Claim Chart (docket no. 119), asserting their noninfringement contentions, on November 2, 2012. Serverside produced the Expert Report Of Alex Cheng Regarding Infringement By Tactical 8 Technologies, L.L.C., And Bank Of Iowa Corporation (Cheng Report), on or about May 10, 2013. See Plaintiffs’ Appendix (docket no. 134-4), 38-188. The Iowa Defendants produced their Responsive Expert Report Of Peter Alexander, Ph.D., Regarding Non-Infringement Of U.S. Patents No[s]. 7,908,-199 And 7,599,490 (Alexander Report) (docket no. 131), on June 7, 2013. Server-side never produced a supplemental or rebuttal expert report from Mr. Cheng or anyone else related to the issues raised in Mr. Cheng’s Expert Report or Dr. Alexander’s Expert Report. Fact and expert discovery closed on July 12, 2013, without any expert depositions being taken by either side.

The Iowa Defendants filed their Motion For Summary Judgment (docket no. 133) on August 12, 2013, relying primarily on the deposition of David Wade Arnold, Ban-no’s chief executive officer, rather than the Alexander Report, as the basis for its arguments on non-infringement. On September 5, 2013, Serverside submitted as part of and as the basis for much of its Resistance to the Iowa Defendants’ Motion For Summary Judgment an Expert Declaration Of Alex Cheng In Support Of Plaintiffs Opposition To Defendants’ Motion For Summary Judgment (Cheng Declaration). See Plaintiffs’ Appendix (docket no. 134-4), 1-37.

In his Declaration, Mr. Cheng declares, inter alia,

3. Some of my expert opinions and non-confidential bases therefore are set forth in the Expert Report of Alex Cheng Regarding Infringement by Tactical 8 Technologies, L.L.C., and Bank of Iowa Corp. (“Cheng Report”). The Cheng Report is filed as an attachment to the Appendix in Support of Plaintiffs Opposition to Defendants’ Motion for Summary Judgment. I have reviewed that attachment, and confirm that it is a true and accurate copy of the Cheng Report.

4. To the best of my knowledge, all statements of fact set forth in the Cheng Report are true and correct or, if so indicated, are believed by me to be true and correct.

* * *

9. The Cheng Report provides technical background information in the area of financial cards, financial card production, and documentation practices for financial card production and documents my opinion on the infringement of the patents-in-suit by Defendants and the methodology used to arrive at my opinion.

10. This declaration contains my analysis of the Defendants’ Brief in Support of Defendants’ Motion for Summary Judgment, dated August 12, 2013 (“Defs’ SJ Brief’).

Plaintiffs’ Appendix at 1-3 (Cheng Declaration, ¶¶ 3-4, 9-10).

Serverside relied extensively on the Cheng Declaration in resisting the Iowa Defendants’ Motion For Summary Judgment, in both its Statement Of Additional Material Facts and its brief. The Iowa Defendants deny various allegations in Serverside’s Statement Of Additional Material Facts “to the extent [that they are] supported by stricken paragraphs from the Cheng Declaration, currently subject to Defendants’ Motion to Strike,” but then “otherwise admit” those paragraphs, in whole or in part, or deny them on the basis that they are incomplete or inaccurate summaries of the underlying evidence on which Serverside relies. See Defendants’ Response To Plaintiffs’ Statement Of Additional Material Facts (docket no. 136), ¶¶ 12,13,14,15,16, 22, 23.

B. Arguments Of The Parties

In essence, the Iowa Defendants assert that the Cheng Declaration was developed and submitted solely for the purpose of resisting the Iowa Defendants’ Motion for Summary Judgment, and, as a result, contains numerous additional purported “expert opinions” not previously disclosed in the Cheng Report. Serverside contends that, although discovery is closed, the Iowa Defendants’ Motion For Summary Judgment relies on new arguments and unsupported assertions never previously articulated in discovery, in deposition testimony, or in the Alexander Report, so that the Cheng Declaration is justified to address those new arguments. These arguments require a somewhat more detailed summary.

1. The Iowa Defendants’ opening argument

The Iowa Defendants argue, first, that the Cheng Declaration contains newly developed opinions not previously disclosed as required by Rule 26(a)(2)(B)® of the Federal Rules of Civil Procedure and that, pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure, it should be stricken. More specifically, the Iowa Defendants argue that this court and the Eighth Circuit Court of Appeals have construed those rules, in conjunction, to mean that a party resisting a summary judgment motion cannot cite to or rely upon expert opinions not otherwise previously disclosed and that such previously undisclosed expert opinions must be stricken from the record, citing Popoalii v. Correctional Medical Services, 512 F.3d 488, 496, 498-99 (8th Cir.2008); Chapman v. Labone, 460 F.Supp.2d 989, 998 (S.D.Iowa 2006); and Schuller v. Great-West Life & Annuity Ins. Co., 2005 WL 2257634, *6-8 (N.D.Iowa, Sept. 15, 2005).

Here, the Iowa Defendants argue, the Cheng Declaration should be stricken, and should not be considered on summary judgment, because Serverside never produced a supplemental or rebuttal expert report from Mr. Cheng and because the Cheng Declaration contains new opinions that were formulated solely for the purpose of resisting the summary judgment motion. Indeed, they contend that Mr. Cheng has admitted as much by stating in his Declaration that his Report contains only “some” of his opinions and that his Declaration is for the purpose of responding to their noninfringement arguments in their summary judgment motion. The Iowa Defendants concede that a few of the allegations in Serverside’s Statement Of Additional Material Facts do not rely on the Cheng Declaration, but cite to and directly rely on opinions properly disclosed in the Cheng Report, so that they need not be stricken. They contend that all other allegations that rely on the Cheng Declaration, in whole or in part, must be stricken, however, because they lack any support in the record, and that such allegations cannot preclude summary judgment pursuant to Rule 56(b). Finally, they argue, in passing, that the conclusory statements and opinions in the Cheng Declaration are not appropriate to resist or sufficient to defeat their summary judgment motion, apparently because they contend that such statements are merely meant to substitute for the judgment of the court.

2. Serverside’s response

In its Resistance, Serverside argues that the Cheng Declaration is not an expert report and, therefore, does not need to comply with Rule 26 requirements for supplementation of Mr. Cheng’s prior Report on infringement. Specifically, Serverside argues that the Cheng Declaration does not change Mr. Cheng’s infringement theories, but only responds to new non-infringement arguments. Second, while Serverside admits that select paragraphs of the Cheng Declaration may contain new information, Serverside argues that the Iowa Defendants acknowledge that “large” portions of it are not new. Third, Serverside argues that the limited new information in the Cheng Declaration directly resulted from new non-infringement positions that the Iowa Defendants have asserted and, therefore, are necessary to respond properly and fully to those newly-stated positions. Indeed, Serverside argues that some of the Iowa Defendants’ new positions are in direct opposition to previously provided discovery responses and testimony from their witnesses and expert to which Serverside has a right to respond.

As a fallback position, Serverside argues that, even if I find that the Cheng Declaration violates Rule 26, I should not strike the Declaration, because it is substantially justified and does not harm the Iowa Defendants, where the Iowa Defendants may disagree with the legal implications of certain facts, but those facts are not “new.” Serverside argues that the Cheng Declaration also merely restates and elaborates information and opinions previously disclosed, so that it may be considered on summary judgment. Finally, Serverside argues that striking the Cheng Declaration and portions of its Statement Of Additional Material Facts relying, in whole or in part, on that Declaration is a harsh and extreme sanction that is not called for here, where other equitable remedies, such as allowing the Iowa Defendants to respond to the Cheng Declaration, are sufficient and more appropriate.

3. The Iowa Defendants’ reply

In reply, the Iowa Defendants argue that Serverside is simply wrong in its assertion that they have relied on “new” theories of non-infringement in their summary judgment motion. To the contrary, they contend, all of the purportedly “new” arguments were set forth in the Alexander Report. They contend that Dr. Alexander merely used different names in certain hypotheticals demonstrating non-infringement, which are reasserted in their arguments for summary judgment, and that he also addressed Serverside’s arguments that use of SSL and TLS constitutes an infringing form of “encryption.” They contend that the vast majority of the Cheng Declaration, not just some small part of it, states new opinions, and should be stricken. Moreover, they dispute that any new arguments are substantially justified or harmless, where they did not rely on “new” non-infringement arguments not previously disclosed, and they are prejudiced by both the substance and timing of the Cheng Declaration, where there is insufficient time to depose Mr. Cheng and seek rebuttal opinions.

C, Legal Analysis

1. Rule 26 and Rule 37 standards

“Decisions concerning the admission of expert testimony lie within the broad discretion of the trial court, and these decisions will not be disturbed on appeal absent an abuse of that discretion.” Bradshaw v. FFE Transp. Servs., Inc., 715 F.3d 1104, 1107 (8th Cir.2013) (internal quotation marks and citations omitted). Similarly, the Eighth Circuit Court of Appeals “review[s] for abuse of discretion a district court’s election regarding how to treat evidence that was not disclosed in accordance with Rule 26(a)(2)(B).” Shuck v. CNH America, L.L.C., 498 F.3d 868, 873 (8th Cir.2007).

Rule 26 of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:

(a) Required Disclosures.

(2) Disclosure of Expert Testimony.

(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report — prepared and signed by the witness — if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;

(e) Supplementing Disclosures and Responses.

(2) Expert Witness. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party’s duty to supplement extends both to information included in the report and to information given during the expert’s deposition. Any additions or changes to this information must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.

Fed.R.Civ.P. 26(a)(2)(B)®, (e).

Thus, Rule 26(a)(2) “dictates the form and framework of disclosed experts reports.” Rodrick v. Wal-Mart Stores East, L.P., 666 F.3d 1093, 1096 (8th Cir.2012). Rule 26(a)(2)(B)® requires an expert report to provide “a complete statement of all opinions the witness will express and the basis and reasons for them,” Fed. R.Evid. 26(a)(2)(B)® (emphasis added); Mems v. City of St. Paul, Dep’t of Fire and Safety Servs., 327 F.3d 771, 779 (8th Cir.2003), and “[ujnder [Rule] 26(e), a party is required to supplement and seasonably amend disclosures.” Mems, 327 F.3d at 779. Such supplementation is required if the expert makes “any changes or alterations” to his or her expert opinions and “any changes or additions to the information provided.” Tenbarge v. Ames Taping Tool Sys., Inc., 190 F.3d 862, 865 (8th Cir.1999); see also Fed.R.Civ.P. 26(e) (referring to “[a]ny additions or changes” as requiring supplemental disclosure).

Although “Rule 26 does not require the disclosure of evidence used solely for impeachment purposes,” the Eighth Circuit Court of Appeals has explained that supplemental testimony of an expert is not “impeachment,” that is, evidence attacking the credibility of a witness, where it is offered “to show that an expert’s opinion about the meaning of facts merely differs from that of other experts.” Wegener v. Johnson, 527 F.3d 687, 691 (8th Cir.2008). The Eighth Circuit Court of Appeals has recognized,

It is often difficult to distinguish between foundational facts and expert opinion, ■ and so to distinguish between impeachment and substantive evidence, see [Kennemur v. California, 133 Cal.App.3d 907, 184 Cal.Rptr. 393,] 403 [(1982)], but Rule 26(a)(2)(C)(ii) resolves the dilemma in favor of disclosure by requiring parties to disclose expert testimony offered to contradict the expert testimony of the opposing party.

Wegener, 527 F.3d at 691.

“ ‘Failure to disclose an expert witness required by rule 26(a)(2)(B) can justify exclusion of testimony at trial.’” McCoy v. Augusta Fiberglass Coatings, Inc., 593 F.3d 737, 746 (8th Cir.2010) (quoting Crump v. Versa Prod., Inc., 400 F.3d 1104, 1110 (8th Cir.2005)). Similarly, “[i]f a party fails to supplement expert testimony [as required by Rule 26(e) ], the district court may order appropriate sanctions as provided for in Rule 37(c).” Tenbarge, 190 F.3d at 865. “Sanctions [for a Rule 26 violation] may include exclusion of the testimony, a continuance to allow depositions to be taken, or the grant of a new trial.” Id. Although it may be permissible to reopen discovery to address belatedly disclosed expert opinions, “ ‘[o]nce discovery has closed in a case, it is the district court’s discretion whether or not to allow it to be reopened.’ ” Bradshaw, 715 F.3d at 1108 (quoting Harris v. Steelweld Equip. Co., 869 F.2d 396, 400 (8th Cir.1989)). Also, if an expert’s testimony (or affidavit) exceeds the scope of opinions properly disclosed, the district court may adequately address the discrepancy “by advising the jurors of the discrepancy and instructing them to take this discrepancy into consideration when weighing the expert’s testimony and credibility.” Shuck, 498 F.3d at 876.

Although the district court has discretion to determine the appropriate sanction for a Rule 26 violation, “the district court’s discretion narrows as the severity of the sanction or remedy it elects increases.” Wegener, 527 F.3d at 692. For example, the court should consider “a lesser sanction, if any, before imposing one that [would] result[ ] in the dismissal of a claim.” Dunning v. Bush, 536 F.3d 879, 890 (8th Cir.2008). Similarly, “ ‘the exclusion of evidence is a harsh penalty and should be used sparingly.’ ” Wegener, 527 F.3d at 692 (quoting ELCA Enters, v. Sisco Equip. Rental & Sales, 53 F.3d 186, 190 (8th Cir.1995)). Thus, the district court should “fashion a remedy or sanction as appropriate for the particular circumstances of the case.” Id.

On the other hand, “under Federal Rule of Civil Procedure 37(c)(1), evidence not disclosed under Rule 26(a) is admissible if harmless.” Shuck, 498 F.3d at 874. Also, a district court may allow evidence violating Rule 26 disclosure requirements, if the violation was “justified.” Rodrick, 666 F.3d at 1096 (acknowledging that expert evidence violating Rule 26 may be allowed if it is “justified or harmless”); Wegener, 527 F.3d at 692 (same). As the Eighth Circuit Court of Appeals has explained,

A district court considers several factors in determining whether a Rule 26 violation is justified or harmless, including: “(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party’s bad faith or willfulness.” [Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir.2002)] (quotation omitted). And, even then, the court need not make explicit findings concerning the existence of a substantial justification or the harmlessness. Id.

Rodrick, 666 F.3d at 1096-97; Wegener, 527 F.3d at 692.

Here, I find it unnecessary to engage in the paragraph-by-paragraph analysis of the Cheng Declaration that the Iowa Defendants invite me to make to determine which parts, if any, are “new” opinions that should have been presented by supplementation of the Cheng Report. I will assume, without deciding, that parts of the Cheng Declaration introduced “changes or alterations” to his expert opinions or “changes or additions to the information provided” in the Cheng Report. See Tenbarge, 190 F.3d at 865; see also Fed.R.Civ.P. 26(e) (referring to “[a]ny additions or changes” as requiring supplemental disclosure). I cannot conclude that the Cheng Declaration is simply for “impeachment,” because it does not attack the credibility of any witness, but is offered “to show that an expert’s [or witness’s] opinion about the meaning of facts ... differs from that of other experts.” Wegener, 527 F.3d at 691. Rather than invite a challenge to the Cheng Declaration based on a Rule 26 violation, the wiser course for Serverside would have been to make a supplemental disclosure, even if doing so required a request to make the supplemental disclosure out of time. Cf. id. (suggesting that the “dilemma” over what to disclose pursuant to Rule 26 can be resolved by making a disclosure when an expert’s testimony is offered to contradict the expert testimony of the opposing party).

Nevertheless, even if there was a violation, I find that it was “justified or harmless.” Rodrick, 666 F.3d at 1096-97; Wegener, 527 F.3d at 692; Shuck, 498 F.3d at 874. This is so, because the prejudice or surprise to the Iowa Defendants, if any, is minimal. See id. (first factor in the “justified or harmless” analysis). The Iowa Defendants surely anticipated responses specifically tailored to their non-infringement arguments in their summary judgment motion. Moreover, their allegations of prejudice ring hollow, where, notwithstanding their initial denials of various allegations in Serverside’s Statement Of Additional Material Facts on the ground that those allegations rely on the Cheng Declaration, the Iowa Defendants nevertheless “otherwise admit” many of those allegations or offer specific explanations of continued denials based on inaccurate summaries or statements of underlying evidence, with citations to or quotations from the underlying evidence. Thus, it appears to me that the Iowa Defendants have already seized the opportunity to “cure” any prejudice that they may have suffered from unanticipated opinions in the Cheng Declaration. See id. (second factor is the party’s ability to cure the prejudice). For this same reason, allowing the purportedly “new” expert opinions, offered in response to the Iowa Defendants’ own non-infringement arguments will not disrupt the trial or, here, disrupt the timely disposition of the summary judgment motion. See id. (third factor is the extent to which introducing such testimony would disrupt the trial). Finally, I do not believe that Serverside acted in “bad faith” or “willfully” in offering the Cheng Declaration, although I believe that both parties have engaged in some gamesmanship to hide their infringement and non-infringement arguments from each other. See id. (fourth factor is the bad faith or willfulness of the party offering previously undisclosed expert opinions).

The Iowa Defendants’ reliance on Schuller v. Great-West Life & Annuity Ins. Co., 2005 WL 2257634, *6-*8 (N.D.Iowa, Sept. 15, 2005), is unavailing, because the proponent of the expert’s evidence in that case had previously failed to make any Rule 26 disclosure prior to summary judgment, as required by applicable orders. See 2005 WL 2257634 at *7. Also, the proponent in Schuller failed to demonstrate that the failure to make required disclosures was harmless or substantially justified, where the opposing party had premised its summary judgment motion on the failure of the proponent to make any expert disclosures, so that the proponent lacked the required expert testimony to support a claim. Id. at *8. Here, the Iowa Defendants have not premised their summary judgment motion on the failure of Server-side to make any expert disclosures, as the defendants had in Schuller, so that the Iowa Defendants simply do not suffer the same kind of harm from the failure to disclose the opinions in the Cheng Declaration earlier, and Serverside has shown an arguable justification for any tardy disclosure.

The Iowa Defendants’ reliance on Chapman v. Labone, 460 F.Supp.2d 989, 998 (S.D.Iowa 2006), is also unavailing. In Chapman, the expert offered some opinions in an affidavit that referred to the “required degree of scientific certainty,” which had been absent from his report, without including the basis or reasoning for such amended opinions, and one new opinion relied on underlying evidence that plainly did not support that opinion. See 460 F.Supp.2d at 998. The purportedly “new” opinions here do not change any infringement opinions previously offered in the Cheng Report, but respond to the Iowa Defendants’ non-infringement arguments, and, as I have found, any prejudice from such new opinions has been cured by the Iowa Defendants’ Response to Server-side’s Statement Of Additional Material Facts.

Furthermore, I conclude that, even if there was a violation of Rule 26 that was not wholly justified or harmless, exclusion of the Cheng Declaration and all allegations in Serverside’s Statement Of Additional Material Facts that rely, in whole or in part, on purportedly “new” opinions in the Cheng Declaration is simply too harsh a sanction in this case. See Wegener, 527 F.3d at 692 (noting that exclusion is a “harsh” remedy and that the district court should “fashion a remedy or sanction as appropriate for the particular circumstances of the case”). A more appropriate sanction, even in the relatively short time remaining before trial, might be to reopen discovery to address belatedly disclosed expert opinions. Bradshaw, 715 F.3d at 1108. I find it unnecessary to impose such a sanction in this case, however, because, again, notwithstanding the Iowa Defendants’ initial denials of various allegations in Serverside’s Statement Of Additional Material Facts on the ground that those allegations rely on the Cheng Declaration, the Iowa Defendants nevertheless “otherwise admit” many of those allegations or offer specific explanations of continued denials based on inaccurate summaries or statements of underlying evidence, with citations to or quotations from the underlying evidence. Thus, as I explained, above, it appears to me that the Iowa Defendants have already seized the opportunity to “cure” any prejudice that they may have suffered from unanticipated opinions in the Cheng Declaration, making further discovery unnecessary.

Also, an appropriate sanction for an expert’s testimony (or affidavit) that exceeds the scope of opinions properly disclosed is to “advis[e] the jurors of the discrepancy and instruct[ ] them to take this discrepancy into consideration when weighing the expert’s testimony and credibility.” Shuck, 498 F.3d at 876. Consequently, I can leave the question of the impact of any discrepancies between the Cheng Declaration and the Cheng Report to the jury at trial, if I find that the Cheng Declaration generates genuine issues of material fact on infringement at the summary judgment stage.

Indeed, I turn, next, to the specific question of whether the Cheng Declaration and allegations of disputed fact that rely upon it should be excluded in my consideration of the Iowa Defendants’ summary judgment motion, under Rule 56 standards, but I will not strike the Cheng Declaration on Rule 26 and Rule 37 grounds.

2. Rule 56 standards

In addition to Rule 26 disclosure concerns, the presentation of an affidavit in resistance to a Rule 56 summary judgment motion that includes expert opinions that purportedly differ from those in a previously disclosed expert report raises additional concerns:

Generally, a court is required to consider an otherwise admissible affidavit, unless that affidavit contradicts previous deposition testimony. Webb v. Garelick Mfg. Co., 94 F.3d 484, 488 (8th Cir.1996). If an additional affidavit simply restates information already contained in deposition testimony or elaborates on information already conveyed, then the district court should consider the affidavit. Id. Contradictory supplemental affidavits are a different matter. We have held that “[i]f testimony under oath ... can be abandoned many months later by the filing of an affidavit, probably no cases would be appropriate for summary judgment. A party should not be allowed to create issues of credibility by contradicting his own earlier testimony.” Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365 (8th Cir.1983). Post-deposition contradictory affidavits are admitted only when the prior deposition testimony shows confusion, and the subsequent affidavit -helps explain the contradiction. Cuffley v. Miches, 208 F.3d 702, 707 (8th Cir.2000).

Popoalii v. Correctional Med. Servs., 512 F.3d 488, 498 (8th Cir.2008).

Contrary to the Iowa Defendants’ arguments, I do not believe that Popoalii requires exclusion of the Cheng Declaration or allegations of fact that rely upon it. In Popoalii, the proponent of the expert’s affidavit asserted that it was a non-contradictory supplemental affidavit, but the court found that the affidavit plainly contradicted the expert’s prior refusal to opine that the defendants had done anything wrong in them medical treatment of the plaintiff, where the expert’s affidavit included his opinion that, if the defendants had tested and monitored the plaintiffs intracranial pressure, they could have likely prevented her blindness. 512 F.3d at 499. Thus, there was an actual “inconsistency” between the expert’s earlier report and his affidavit offered to resist summary judgment. Id. Notwithstanding that the Iowa Defendants have argued against admission of the Cheng Declaration on various grounds, they have failed to demonstrate that the “new” opinions in the Cheng Declaration, which respond to their own arguments for non-infringement, actually “contradict” or are “inconsistent” with any opinions about infringement by the accused system in the prior Cheng Report. To put it the other way around, Serverside has asserted that the purportedly “new” opinions about non-infringement in the Cheng Declaration are entirely consistent with Mr. Cheng’s opinions about infringement in the Cheng Report, and the Iowa Defendants have failed to rebut that assertion. Thus, the “trigger” of inconsistency for exclusion of the affidavit on summary judgment is missing here. Id.

Therefore, I will not strike the Cheng Declaration from consideration on the Iowa Defendants’ Motion For Summary Judgment on Rule 56 grounds, either.

3. Summary

The Iowa Defendants’ September 16, 2013, Motion To Strike (docket no. 137) is denied. Notwithstanding denial of that motion, to the extent that the Iowa Defendants can demonstrate to a jury, if this case proceeds to a jury trial, that Mr. Cheng’s opinions in his Declaration exceed the scope of opinions properly disclosed in his Report, the Iowa Defendants may request that I “advis[e] the jurors of the discrepancy and instructf] them to take this discrepancy into consideration when weighing [Mr. Cheng’s] testimony and credibility.” Shuck, 498 F.3d at 876.

III. THE MOTION FOR SUMMARY JUDGMENT

The other motion now before me is the Iowa Defendants’ August 12, 2013, Motion For Summary Judgment (docket no. 133). Before reviewing the factual background provided by the parties’ Statements Of Material Facts and responses to them, I find that some context for the motion, particularly in light of prior Markman proceedings, is appropriate.

A. Context Of The Motion

The Motion For Summary Judgment on Serverside’s infringement claims must be viewed in the context of the claims and claim terms of the patents-in-suit, as I have construed them. See ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc., 694 F.3d 1312, 1319 (Fed.Cir.2012) (explaining that determining literal infringement requires “ ‘proper construction of the asserted claim and a determination whether the claim as properly construed reads on the accused product or method’ ” (quoting Georgia-Pacific Corp. v. U.S. Gypsum Co., 195 F.3d 1322, 1330 (Fed.Cir.1999))). Thus, I will begin my analysis of the Iowa Defendants’ Motion For Summary Judgment with a summary of the patent claims at issue and my construction of various claim terms in those patent claims.

1. The patents-in-suit

The patents-in-suit are U.S. Patent No. 7,931,199 (the '199 patent), entitled “Computerized Card Production Equipment,” in Count I,- and U.S. Patent No. 7,946,490 (the '490 patent), also entitled “Computerized Card Production Equipment.” As I explained in my Markman ruling, both of the patents-in-suit arise from the same provisional application, and the Abstracts, Figures, Cross-Reference To Related Applications, Technical Fields, Backgrounds, Summaries, Brief Descriptions Of The Drawings, and Detailed Descriptions of the two patents are nearly identical. Id. at 631-32. Unless otherwise indicated, citations to and quotations from the '199 patent appear in the identical location, in identical form, in the '490 patent. I will refer to titled sections of the patents in the singular and quote portions of the patents using the '199 patent as the source, unless otherwise required. Identically numbered claims of the two patents are sometimes stated in identical language and sometimes stated somewhat differently, albeit with much overlap of claim terms, so I will always differentiate between the claims of the two patents.

In my Markman ruling, I set forth, in considerable detail, the description of the invention claimed in the two patents-in-suit. Id. at 631-38. As I also explained, and the parties did not dispute, putting the description of the invention in plain English, the invention allows customers to use a secure process on the internet to select personalized images, which are printed on their bank credit or debit cards, even if the customer, the images, the image manipulation software, the customer’s account information, and the card printer are all in different locations. Id. at 633. As I also explained, the claimed invention discloses both “ ‘[a]n apparatus and method for manipulating images.’ ” Id. at 632 (quoting '199 Patent, Abstract).

2. The key patent claims at issue

Serverside accuses the Iowa Defendants of directly and indirectly infringing claims 1, 2, 9, 14-16, 18, 22, 25, 29, and 30 of the '199 patent and claims 1, 2, 9, 14-16, 18, 22, 25, and 29-31 of the '490 patent. The focus of the defendants’ Motion For Summary Judgment, however, is claim 1 of each patent. I think that the most effective way to present these patent claims, when they are so similar, is side-by-side in a way that indicates similarities and differences. I have done so, below, using bold for “undisputed” claim terms — that is, claim terms that the parties agreed required construction, but for which they agreed upon the appropriate construction — using italics for “disputed” claim terms — that is, claim terms for which the parties disputed the appropriate construction, so that I was required to construe them — and underlining for claim language that differs between the two patents.

PATENT CLAIMS ALLEGEDLY INFRINGED

T99 Patent Claims

What is claimed is:

1. Computerized financial transaction card pro- 1. duction equipment operable to apply one or more personalized images to a financial transaction card, the production equipment comprising:

a module configured to receive a personalized image of a customer, the image being received from an image processor computer arranged to facilitate image personalization by remote customers;

a module configured to receive a customer identifier that corresponds to the remote customer that personalized said image;

a module configured to receive a financial record of the remote customer that personalized the image;

a card printer arranged to print images on card material and equipment configured to apply financial information from the financial record to the card material; and

a controller operable, based on said customer identifier, to cause printing of said personalized customer image onto the card material and to cause application of relevant financial information from the financial record onto the card material,

wherein the customer identifier comprises an identifíer selected from a secure unique identifier and a one-way code.

'490 Patent Claims

What is claimed is:

Computerized financial transaction card production equipment operable to apply one or more personalized images to a financial transaction card, the production equipment comprising:

a module configured to receive a personalized image of a customer, the image being received from an image processor computer arranged to facilitate image personalization by remote customers;

a module configured to receive a customer identifier that corresponds to the remote customer that personalized said image;

a module configured to receive a financial record of the remote customer that personalized the image;

a card printer arranged to print images on card material and equipment configured to apply financial information from the financial record to the card material; and

a controller operable, based on said customer identifier, to cause printing of said personalized customer image onto the card material and to cause application of relevant financial information from the financial record onto the card material,

wherein the customer identifier encompasses encrypted customer information.

3. The patent claim terms at issue

In my Markman ruling, Serverside, 927 F.Supp.2d at 690, I construed the “undisputed” claim terms that appear in either claim 1 of the '199 patent, claim 1 of the f490 patent, or both, as shown in the following chart:

UNDISPUTED CLAIM TERMS

No. Claim Term/Phrase Relevant Claim(s) Agreed Construction

1 “financial transaction card” '199: 1, 2, 9, 14-16, 18, 22, 25, 29 '490: 1, 2, 9,14-16, 18, 22, 25, 29-31 “a transaction card (e.g., credit card, debit card, ATM card, or similar card), but not a prepaid bearer card”

“record of the remote cus- '199: 1 '490: 1 tomer that personalized the image” “record of financial information of the customer that personalized the image”

“one-way code” '199: 1 “a hash value created from customer information”

“an identifier selected from '199: 1 a secure unique identifier and a one-way code” “a customer identifier that is chosen from one of two available options: a secure unique identifier or a one-way code”

In my Markman ruling, see Serverside, 927 F.Supp.2d at 691-92, I also construed the “disputed” claim terms at issue in this patent-infringement action, all of which appear in either claim 1 of the '199 patent, claim 1 of the '490 patent, or both, as shown in the following chart:

_DISPUTED CLAIM TERMS_

No. Claim Term/Phrase_ Relevant Claim(s)_Court’s Final Construction

1 “customer identifier that corresponds to the remote customer that personalized said image” '199: 1-4, 6-8,10-13,15, “a signal, character, or group of 17-18, 20-21, 24-28 characters that matches with the customer that personalized the image”

“customer identifier corresponding to the remote customer”/” customer identifier that corresponds to the remote customer” '490: 1-4,6-8,10-13,15, 17-18, 20-21, 24-28, 30-31

“unique identifier corresponding to the remote user”

2 “secure unique identifier” '199: 1 “a secure, unique signal, character, or group of characters that can be used to identify the customer”

“customer information coded from original text into language unintelligible to unauthorized persons, but not into a randomly generated alphanumeric code” 3 “encrypted customer infor- '490: 1,29-31 mation”/”encrypted remote user information”

With this context in mind, I turn to the factual background specifically relating to the pending Motion For Summary Judgment.

B. Factual Background

1. The parties’ factual allegations and denials

The factual background pertinent to the Motion For Summary Judgment relates primarily to the Iowa Defendants’ allegedly infringing “Cre8MyCard system.” The Iowa Defendants dispute many of Server-side’s allegations in Serverside’s Statement Of Additional Material Facts on the ground that Serverside’s statements are inaccurate or incomplete summaries or statements of the evidence cited in support. Where it appears that the dispute over summaries or characterizations of other evidence can be resolved by relying directly on the underlying evidence — such as what a particular document says or what a particular witness said — I will quote from the underlying document. On the other hand, where the dispute is about the characterization of a witness’s explanation of the accused system, I cannot simply quote the underlying testimony as if it were an undisputed explanation of the accused system. Rather, I can only frame the dispute and later resolve whether the dispute is material and whether the cited record evidence supports a particular characterization. The Iowa Defendants also dispute many more of Serverside’s allegations on the ground that those allegations rely, in whole or in part, on the Cheng Declaration, which the Iowa Defendants had moved to strike. Because I have declined to strike the Cheng Declaration, I will not reject allegations that rely on it as unsupported; rather, I will treat as “admitted” those allegations relying on the Cheng Declaration that the Iowa Defendants “otherwise admit” and explain the basis for denials of those allegations that the Iowa Defendants deny on additional grounds.

Unless indicated otherwise, the facts stated below are undisputed.

2. The accused system

Serverside alleges that the Iowa Defendants are infringing the patents-in-suit by using the Cre8MyCard system, which the parties agree is an Internet-based system that allows for the customization of financial transaction cards from financial institutions, such as BIC, that are Banno’s customers. I will summarize the parties’ allegations concerning the Cre8MyCard system as they relate to the parts and users of the Cre8MyCard system; the process for customization of a card by a remote customer; the processing of the customized card by a financial institution; the manufacturing or printing of the card; the workings of “instant” production methods (as opposed to the remote access method); and, finally, the extent to which the Cre8MyCard system does or does not use “hashing” or “encryption.”

a. Parts and users of the Cre8MyCard system

As part of the Cre8MyCard system, Banno owns and maintains the following: (1) a database for storing images and configuration settings for each financial institution participating in Cre8MyCard; (2) Personal Home Page (PHP) code that interacts with the database; (8) a file system that stores Flash files; and (4) an Apache Webserver. Three classes of users interact with the Cre8MyCard system: card holders, financial institutions, and card manufacturers.

b. Customization by a remote customer

One way for a customer to customize a financial transaction card using the Cre8MyCard system is for a customer to access the website serving the Cre8MyCard system for the remote customer’s financial institution, then download the Cre8MyCard software to the remote customer’s browser. Serverside points out that there are other ways to access the Cre8MyCard system, including at an instant issuance kiosk and through Banno’s iPad application. Cre8MyCard does not use remote customer passwords or user-names, but the parties dispute whether or not it requires remote customers to submit any information about themselves. More specifically, the Iowa Defendants allege that any remote customer can access and utilize the Cre8MyCard system to configure a financial transaction card for himself or herself or for a third party, and that the remote customer’s identity is not verified by the Cre8MyCard system, nor determinable from the information recorded by the Cre8MyCard system during the card configuration process. Serverside counters that a remote customer can access and utilize the Cre8MyCard system to configure a financial transaction card only if that customer has the first name, last name, and personal account number (PAN) of a card holder. Serverside admits that the Cre8MyCard system does not require, nor does it take any steps to verify, that the remote customer and the card owner are the same person, but Serverside alleges that the intended use of the Cre8MyCard system is for card holders to customize their own cards.

Once connected, the remote customer (Serverside alleges “card holder,” but the Iowa Defendants deny that the remote customer must actually be the “card holder”) is “authenticated” (according to Serverside) or “credentialed” (according to the Iowa Defendants) in one of three ways: (1) through the last four digits of their card number and their unique personal identification number (PIN), although the Iowa Defendants assert that this option applies only if the card is a debit card; (2) the remote customer’s image is assigned an image ID and the financial institution manually reconciles the card image with the account when the customer comes into the institution, although the Iowa Defendants allegé that this option applies only to new customers; and (3) the card holder bank account number, primary account number (PAN), or user-supplied information is associated with the session ID of the Webserver (as Serverside alleges) or a manual lookup can be performed to match the name and bank account number with the image (as the Iowa Defendants allege).

Once a remote customer has accessed the Cre8MyCard system via the website serving the Cre8MyCard system and downloads the software, the remote customer is allowed to select a card product type (i e., a photo ID card, full image card, debit card, credit card, prepaid card, or photocard) that the remote customer wishes to configure. The remote customer then selects an image provided from a third-party gallery, a social media site, or the computer that the remote customer is using. The remote customer (again, Serverside alleges “card holder,” but the Iowa Defendants deny that the remote customer must be the “card holder”) can select images for customization in several different ways: (1) the image data can be sent from the remote customer’s computer to the remote customer’s web browser without sending the image to the server before manipulation; (2) a thumbnail image can be selected from the gallery and the full resolution image is downloaded to the client; or (3) a third-party web service Ce.g., Facebook, Fliekr) is accessed to download the image to the remote customer’s browser.

Next, the Cre8MyCard software downloaded to the remote customer’s web browser allows the remote customer to manipulate the chosen image, for example, by shrinking, enlarging, or rotating the image. The Iowa Defendants allege that the entire image manipulation process takes place on the remote customer’s web browser, not on the Cre8MyCard web server. Serverside admits that the Iowa Defendants have not produced any evidence that the manipulation process occurs anywhere else, but Serverside argues that the only evidence produced by the Iowa Defendants about where the image is manipulated is “uncorroborated.” The Iowa Defendants allege that no information about the initial image or the manner in which the image is manipulated is sent to the Cre8MyCard server; rather, the Cre8MyCard server only receives the image in its final form once the image manipulation process is complete. Serverside denies this allegation, because it alleges that information about the card holder whose card will display the manipulated image is sent to the Cre8MyCard server. I do not believe that information about whose card will display the image is, by any sensible reading, information about the initial image or the manner in which the image was manipulated, so that Serverside has alleged an additional fact, but has not actually disputed (let alone refuted) the Iowa Defendants’ allegation that no information about the initial image or the manner in which the image was manipulated is sent to the Cre8MyCard server.

After the image has been manipulated, the remote customer continues the card configuration process by filling in two alphanumeric fields, which hold text strings consisting of the first and last name of the card owner, respectively, as well as a separate numeric field generally representative of the last four digits of the card owner’s card number. Like the parties, I will call the information entered in the two alphanumeric fields and the numeric field “the Data.” Serverside alleges that the Data is used to identify the card holder as the remote customer who personalized the image in the Cre8MyCard system, but the Iowa Defendants deny this as unsupported by the record, again based on their contention that the remote customer does not have to be the card holder. The parties agree that, generally speaking, the financial institutions that utilize the Cre8MyCard system desire the numeric field to represent somewhere from four to six characters of the card owner’s card number or account number. As a specific example, they agree that BIC uses the Cre8MyCard system’s numeric field to gather the last four digits of the card owner’s card number. The parties agree that, pursuant to ISO 7812, the first six digits of the PAN are reserved as the issuer identifier number (IIN), which is unique to each financial institution issuing financial transaction cards. The Cre8MyCard system does not store the card owner’s entire card number or account number, because storage of that information in its entirety requires registration with, and strict regulation by, the federal government.

The Cre8MyCard system does not verify the accuracy of the Data, only that the remote customer has put letters (as opposed to other characters) into the alphanumeric fields and numbers (as opposed to other characters) into the numeric field. The Cre8MyCard system does not verify that the Data provided by the remote customer actually corresponds with an existing BIC account, but Serverside denies the Iowa Defendants’ allegation that the Cre8MyCard system is not linked in any way to BIC’s accounting system.

Next, the remote customer hits the “submit” button, and the Data, along with the image, are uploaded to Cre8MyCard’s web server.

c. Processing of the customized card by the financial institution

The parties agree that the Data and the image are recorded by the Cre8MyCard system during the card configuration process and passed on to BIC, but Serverside alleges that the Cre8MyCard system also records a session ID. More specifically, after a remote customer hits the “submit” button for the image he or she wants on the subject card, the Cre8MyCard system uses a table called “Orders” to store the incoming domain name of the financial institution from which the card is being personalized, which is how Banno knows which financial institution to bill, and separate columns within the table for first name, last name, personal account number (PAN), and a foreign key that directs the user to another database table that holds all of the images, but the Iowa Defendants deny that there is a column for an Order identification of any kind.

Through Banno’s back-end system, BIC is then notified that a new order was placed using the Cre8MyCard system. Someone at BIC logs into Banno’s administrative software to verify that the Data provided by the remote customer corresponds with an existing BIC account, and, if so, BIC orders the card for its customer (i.e., the card owner) through a separate system operated by a third party (at least in the case of non-instant issuance). Specifically, financial institutions log on to Banno’s system to review and approve images submitted by a remote customer (although the Iowa Defendants reiterate their contention that the “remote customer” is not necessarily the actual card holder) prior to undertaking the different steps utilized by each financial institution to print or manufacture its cards.

d. Card manufacturing

Serverside denies that the system that BIC uses to order the card from a card manufacturer is “unrelated” to the Cre8MyCard system. While the Iowa Defendants allege that the Cre8MyCard system does not control any card manufacturing operations, Serverside disputes that allegation, because Serverside alleges, and the Iowa Defendants admit, that the Cre8MyCard system provides the financial transaction card manufacturer for a financial institution (e.g., BIC) with an interface to retrieve images and associated data from the financial record of the remote customer that personalized the image to manufacture financial transaction cards customized by the remote customer. Serverside also alleges, and the Iowa Defendants admit, that the card manufacturer connects to the Banno Webserver via the Banno API (ie., api.cre8mycard.com) using a connection secured by firewall trust security. Specifically, Mr. Arnold explained in his deposition that “api.cre8mycard.com ... is how the iPad version and the third-party card printers interact ... to get the images.” Plaintiffs’ Appendix at 200 (Arnold Deposition at 46:13 — 15). Financial institutions (but not Banno) have contracts in place with electronic fund transfer (EFT) companies to have cards manufactured.

e. “Instant” production methods

As mentioned above, in addition to a remote customer accessing the Cre8MyCard system from his or her own computer, the Cre8MyCard system may also be accessed at an instant issuance kiosk and through Banno’s iPad application. The Cre8MyCard iPad application, which is used in instant issue machines, is controlled by an employee of the financial institution and allows card holders to select an image from a gallery or download images from social media (Facebook, Flickr, Picasso), customize the downloaded image, and have the financial transaction card manufactured at the financial institution’s location