WI-LAN Inc. v. HTC Corporation et al

Filing 649

MEMORANDUM OPINION AND ORDER; granting and denying in part 635 SEALED PATENT MOTION FOR JUDGMENT AS A MATTER OF LAW UNDER FRCP 50(B) OR, IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL UNDER FRCP 59 filed by WI-LAN Inc. Accordingly, the Court hereby VACATES the portion of the Judgment (Dkt. No. 628 ) that found claims 1 and 10 of the '802 patent to be invalid. Signed by Judge Rodney Gilstrap on 4/2/14. (mrm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
WI-LAN INC.,
Plaintiff,
v.
HTC CORP., et al.,
Defendants.

WI-LAN INC.,
Plaintiff,
v.
APPLE INC., et al.,
Defendants.

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CASE NO. 2:11-CV-68-JRG
LEAD CASE

CASE NO. 2:12-CV-600-JRG
Member Case

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION
Before the Court is Wi-LAN Inc.’s (“Wi-LAN”) Motion for Judgment as a Matter of Law

Under FRCP 50(b) or, in the Alternative, Motion for a New Trial Under FRCP 59 (Dkt. No. 635).
In it, Wi-LAN moves the Court to overturn the jury’s verdict and find the asserted patent to be
valid and to find that Apple Inc. (“Apple”) infringes both of the asserted claims as a matter of law.
Wi-LAN filed this patent infringement action against Apple Inc. (“Apple”) on February 2,
2011, accusing the iPhone and iPad devices of infringing claims 1 and 10 of U.S. Patent No.
RE37,802 (“the ’802 patent”) by using certain industry standards in the field of wireless

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technology. The Court held a seven-day jury trial beginning on October 15, 2013. The jury
returned a unanimous verdict on October 23, 2013 finding that Apple does not infringe and that
claims 1 and 10 of the ’802 patent are invalid. (See Jury Verdict, Dkt. No. 627.)
II.

APPLICABLE LAW REGARDING RULE 50
Judgment as a matter of law is only appropriate when “a reasonable jury would not have a

legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a). “The
grant or denial of a motion for judgment as a matter of law is a procedural issue not unique to
patent law, reviewed under the law of the regional circuit in which the appeal from the district
court would usually lie.” Finisar Corp. v. DirectTV Group, Inc., 523 F.3d 1323, 1332 (Fed. Cir.
2008). The Fifth Circuit “uses the same standard to review the verdict that the district court used in
first passing on the motion.” Hiltgen v. Sumrall, 47 F.3d 695, 699 (5th Cir. 1995). Thus, a jury
verdict must be upheld, and judgment as a matter of law may not be granted, unless “there is no
legally sufficient evidentiary basis for a reasonable jury to find as the jury did.” Id. at 700. The
jury’s verdict must be supported by “substantial evidence” in support of each element of the
claims. Am. Home Assurance Co. v. United Space Alliance, 378 F.3d 482, 487 (5th Cir. 2004).
A court reviews all evidence in the record and must draw all reasonable inferences in favor
of the nonmoving party; however, a court may not make credibility determinations or weigh the
evidence, as those are solely functions of the jury. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150-51 (2000). The moving party is entitled to judgment as a matter of law “only if
the evidence points so strongly and so overwhelmingly in favor of the nonmoving party that no
reasonable juror could return a contrary verdict.” Int’l Ins. Co. v. RSR Corp., 426 F.3d 281, 296
(5th Cir. 2005).

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III.

APPLICABLE LAW REGARDING RULE 59
Under Rule 59(a) of the Federal Rules of Civil Procedure, a new trial can be granted to any

party to a jury trial on any or all issues “for any reason for which a new trial has heretofore been
granted in an action at law in federal court.” Fed. R. Civ. P. 59(a). “A new trial may be granted, for
example, if the district court finds the verdict is against the weight of the evidence, the damages
awarded are excessive, the trial was unfair, or prejudicial error was committed in its course.” Smith
v. Transworld Drilling Co., 773 F.2d 610, 612-13 (5th Cir. 1985). The Court must view the
evidence “in a light most favorable to the jury’s verdict, and [] the verdict must be affirmed unless
the evidence points so strongly and overwhelmingly in favor of one party that the court believes
that reasonable persons could not arrive at a contrary conclusion.” Dawson v. Wal-Mart Stores,
Inc., 978 F.2d 205, 208 (5th Cir. 1992).
IV.

JUDGMENT OF INVALIDITY
Wi-LAN’s motion for judgment as a matter of law of no invalidity focuses on a specific

means-plus-function claim limitation present in claims 1 and 10 of the ’802 patent. The element at
issue is: “first computing means for operating on the plural sets of N data symbols to produce
modulated data symbols corresponding to an invertible randomized spreading of the first stream of
data symbols.” 1 Pursuant to the parties’ agreement during the Markman hearing, the Court
adopted the following function and corresponding structure.
Function: “operating on the plural sets
of N data symbols to produce
modulated data symbols corresponding
to an invertible randomized spreading
of the first stream of data symbols”

Corresponding Structure: “element 12
of Figures 1 and 4, columns 2:6-10,
2:36-40, 2:58-62, 4:2-12 and 4:35-44,
and equivalents thereof”

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The parties both refer to both the means-plus-function limitations in the second element of claims 1 and 10 as
“first computing means” in addressing this issue.

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(See Claim Construction Order, Dkt. No. 302.)
In this motion, the parties dispute two distinct issues.
First, Wi-LAN generally contends that Apple presented insufficient evidence that the
structure as construed by the Court exists in the prior art. Wi-LAN asserts that Apple’s expert
witness, Dr. Acampora, only performed half of the invalidity analysis in opining that this
means-plus-function element was disclosed by the prior art because he only found the “invertible
randomized spreading” function to be met, but omitted any discussion of a structural comparison.
Wi-LAN argues that a purely functional analysis of a means-plus-function limitation is
insufficient to establish invalidity as a matter of law. In response, Apple asserts that both a
functional and structural comparison was conducted during trial. Apple identified two instances
during Dr. Acampora’s testimony where he demonstrated to the jury that the spread spectrum
modulator structures (or its equivalents) were present in the Sasaki and Gilhousen prior art such
that it satisfies the corresponding structure in the Court’s claim construction.
Second, Wi-LAN asserts that a complex multiplier is a necessary part of the required
structure of the “first computing means” element and any invalidity analysis is fatally incomplete
if the prior art references do not disclose a complex multiplier. Apple disagrees, pointing out that
the Court’s construction does not specifically identify a complex multiplier as a corresponding
structure. Therefore, this question turns on whether a complex multiplier is a necessary part of the
structure corresponding to the “first computing means.” If a complex multiplier is a required
component, then the jury’s invalidity verdict cannot survive because it is undisputed that no
evidence was presented to the jury showing that a complex multiplier existed in the prior art.

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i.

Apple presented sufficient evidence of corresponding structure

The Court first evaluates whether Apple conducted a structural analysis of the
means-plus-function element. In other words, whether Apple presented sufficient evidence that the
prior art disclosed element 12 of Figures 1 and 4 or equivalents thereof—the corresponding
structure as identified by the Court for the term “first computing means.”
It is well-settled law that to prove anticipation of a means-plus-function limitation, a
functional analysis alone will not suffice; the invalidity proponent must prove that the prior art
discloses both the identical function and the particular corresponding structure that performs the
function, or an equivalent thereof.2 Fresenius USA, Inc. v. Baxter Intern., Inc., 582 F.3d 1288,
1299 (Fed. Cir. 2009). “Just as a patentee who seeks to prove infringement must provide a
structural analysis by demonstrating that the accused device has the identified corresponding
structure or an equivalent structure, a challenger who seeks to demonstrate that a
means-plus-function limitation was present in the prior art must prove that the corresponding
structure—or an equivalent—was present in the prior art.” Id. (citing In re Donaldson Co., 16 F.3d
1339, 1361 (Fed. Cir. 1994)).
Apple points to three instances in the record where Dr. Acampora explained that the
“spread spectrum modulators” structures performed the “first computing means” in the Sasaki and
Gilhousen references. (10/21/2013 PM Tr. at 102:21-103:11, 106:23-107:3, 116:25-117:25). From
a reading of the trial transcript, Dr. Acampora was not specifically asked to compare the “element
12 of Figures 1 and 4” structure to the Sasaki and Gilhousen prior art. However, the jury had the
benefit of visual aids in the courtroom that was not captured by the written record. During his
direct testimony on anticipation, Dr. Acampora referenced a slide presentation that clearly showed
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Apple only put forth an invalidity case based on anticipation.

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element 12 of Figure 1 from the ’802 patent (the corresponding structure) in a side-by-side
comparison with images from both the Sasaki and Gilhousen prior art references. As a result, the
record establishes that Dr. Acampora conducted both a functional and structural analysis of the
means-plus-function element to find that the prior art reference is met.
In addition, a claim chart showing the Court’s construction and a copy of the ’802 patent
was provided to each juror in their juror notebooks. The Court’s charge specifically referred to
those documents in instructing the jury on how to evaluate the means-plus-function claims:
I will now instruct you about the meaning of the
means-plus-function claim requirement. Remember that the Court’s
claim chart tells you the function that is performed and the structure
disclosed in the ’802 patent specification that corresponds to that function.
To establish literal infringement of a claim that includes
means-plus-function requirements, Wi-LAN must prove two things:
1.
the relevant structure in the accused device performs the identical
function I identified in the claim construction chart found in your juror
notebook, and
2.
the accused device employs a structure identical or equivalent to the
structure described in the patent.
(10/23/2013 AM Tr. at 42:21-43:10). Therefore, between the use of the visual presentation
during Dr. Acampora’s testimony and the Court’s final instructions to the jury, the Court finds that
Apple presented sufficient evidence that “element 12 of Figures 1 and 4,” the corresponding
structure of the “first computing means,” was disclosed by the prior art.
ii.

Complex multiplier is a required structure of “first computing means”

The Court next evaluates whether a complex multiplier is a required structure for “first
computing means” based on the Court’s construction. Apple points out that the Court’s
construction does not explicitly identify a complex multiplier as a structure corresponding to the
means-plus-function term. The complex multiplier was disclosed in Figure 8 of the ’802 patent and
the Court found the corresponding structure of “first computing means” to be “element 12 of
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Figures 1 and 4, columns 2:6-10, 2:36-40, 2:58-62, 4:2-12 and 4:35-44, and equivalents thereof.”
Figure 8 was not included. Nevertheless, Wi-LAN argues that throughout the trial, both sides took
the position that the complex multiplier found in Figure 8 was necessarily included in the Court’s
construction. As support for this argument, Wi-LAN relies on the direct examination testimony of
Apple’s expert witness, Dr. Acampora.
Q.

Okay. How many multipliers would be in the patent?

A.
Okay. So in the patent, we would have -- each of these would need
to be a complex multiplier to perform invertible randomized spreading. This is one
of the structures that the Court identified as being that which corresponds to
the first computing means.
(10/21/2013 PM Tr. at 91:8-14). Further, Dr. Acampora agreed that the complex multiplier
in Figure 8 is a part of the transforms that are in Figures 4 and 1, the Court-identified
corresponding structure for the “first computing means.”
Q.
Along with the randomizer transform. Those transform -- the
randomizer transform in Figure 8 is part of the transforms that are in Figure
4 and Figure 1 of the patent, correct?
A.

That is correct.

Q.

Okay. Now, randomizing transform is a complex randomizer, right?

A.

It is.

Q.
The one in Figure 8 of the patent is a -- well, we call it sometimes a
complex multiplier, right?
A.

That’s correct.
****

Q.
Sir, when you were up here and sketching out on these drawings,
didn’t you tell the jury -- I wrote it down. You said that the randomizer transform is
part of the Figure 1 first computing means.
A.

Yes.
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Q.
And you said the randomizer transform is part of the Figure 4 first
computing means.
A.

Yes.

Q.
And Sasaki does not use a randomizer transform of the type
described in the ’802 patent, Figure 8, does it?
A.

That’s correct.

Q.
There’s only one randomizer transform in the ’802 patent that’s
described, correct?
A.
There’s only one described. It’s Figure 8, which shows a bunch of
complex multipliers.
(Id. at 139:12-22, 195:12-196:2). Dr. Acampora’s opinion is also consistent with the
testimony from Wi-LAN’s expert witness, Dr. Orsak.
Q.
And it’s your opinion that the computing means of Claim 1 as
described in Figure 1 requires Figures 3 and 8, correct?
A.
Those codes are specifically from Figure 3. That is correct. And
Figure 3 must produce codes that spread and randomize in this case, and the only
transform that performs randomization provided by the inventors is the randomizer
transform, which is, as we just talked about, in Figure 8.
(Cross-examination 10/16/2013 AM Tr. at 91:12-20; see also direct examination of Dr.
Orsak, 10/15/2013 PM Tr. at 34:2-37:21 (sealed)). Consequently, although the Court’s
identification of the structure for “first computing means” does not specifically provide for a
complex multiplier component, that does not mean a complex multiplier can never be a necessary
component of the structure. Parties in patent cases often retain expert witnesses to explain and
provide context to the claimed invention in a manner consistent with the Court’s constructions.
That is exactly what happened here. The record reveals the expert witnesses from both sides
agreed that complex multipliers are a part of the structure of “first computing means” as taught by

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the ’802 patent. Apple has not shown in its post-verdict briefing that its own expert’s trial
testimony was inconsistent with the Court’s interpretation.
Each patent claim is presumed to be valid and as the party asserting invalidity, Apple was
required to prove invalidity by clear and convincing evidence. 35 U.S. C. § 282; Fresenius, 582
F.3d at 1294-1295. Apple’s expert clearly testified that the complex multiplier shown in Figure 8 is
a necessary part of the corresponding structure for “first computing means,” yet he failed to
identify how this structure was disclosed by the prior art. As it is undisputed that no evidence was
presented of complex multipliers in the prior art, Apple’s evidentiary burden of proof cannot be
carried. The Court is unable to find that the jury’s finding as to invalidity of claims 1 and 10 of the
’802 patent is supported by substantial evidence. Accordingly, the jury’s invalidity verdict cannot
stand.
V.

JUDGMENT OF NON-INFRINGEMENT
Wi-LAN makes two arguments to show that it is entitled to a judgment of infringement as

a matter of law. Both arguments are premised on Apple’s allegedly contradictory application of
terms that have already been construed by the Court. Wi-LAN first contends that Apple
improperly argued that “even” separation of the input “first data stream” is required at the output
of the “converter” element in claims 1 and 10, which contradicts the Court’s construction of the
term “converter.” Wi-LAN’s second argument relates to its non-infringement defenses for the
“first computing means” and “means to combine.” Wi-LAN contends that Apple’s requirement
that the “modulated data symbols” must be spread and randomized before being combined
contradicts the Court’s claim construction, which does not specify such an order of operations.

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i.

Even separation

The first dispute centers on whether Apple properly applied the Court’s claim construction
to the “converter” element in setting forth its non-infringement position before the jury. The Court
has construed the term “converting [the / a] first stream of data symbols into plural sets of N data
symbols each” to mean “separating the first data stream into multiple groups of data symbols such
that each group has N data symbols.” In reaching this construction, the Court explained that it
“reject[ed] Defendants’ proposal that each group must be separated into N individual data
symbols.” (Dkt. No. 302 at 32.) From that statement, Wi-LAN contends the Court explicitly
rejected Apple’s “even separation” argument such that the groups of N input data symbols entering
the converter need not be evenly separated into N individual data symbols at the output of the
converter. However, Wi-LAN continues, Apple disregarded the Court’s construction during trial
by asserting that even separation was a necessary requirement to find infringement. According to
Wi-LAN, Dr. Acampora (Apple’s expert) inappropriately imported this additional limitation to the
“converting…” term that required the number of streams coming out of the converter to equal the
number of data symbols in each group.
In response, Apple contends that it never relied on an “equal data streams” limitations for
its non-infringement position. Rather, Apple argues that Dr. Acampora’s testimony made clear the
reason the products do not meet the converting limitation is because they do not meet the “even
separation” requirement. Apple maintains that the “even separation” requirement is consistent
with the Court’s construction because the Markman Order went on to explain that “the disputed
term should be construed to clarify and explain that the stream of data symbols is separated into

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multiple groups and that each group has N data symbols.” (Dkt. No. 302 at 32.) The Court agrees
with Apple.
The argument that each group must be separated into N individual data symbols was
previously rejected by the Court. However, the Court did not reject the notion that the data must be
evenly separated into multiple groups of N data symbols each. Therefore, the number of groups of
N data symbols does not have to equal N, although each group must contain the same N number of
data symbols. Dr. Acampora’s testimony at trial was consistent with this construction.
During trial, Dr. Acampora testified that the three standards accused of infringement do not
meet the converter limitation because they do not perform even separation. First, he explained the
CDMA2000 standard has two channels, the fundamental channel and the supplemental channel.
The CDMA2000 standard does not have the claimed converter because “these two channels have
different numbers of data symbols.” (10/21/2013 PM Tr. at 68:10-19.) Dr. Acampora next
explained the EV-DO standard also does not do an equal split because “six symbols come in, two
go to the top output, four go to the bottom output.” (Id. at 73:3-20.) Dr. Acampora opines that the
third accused standard, the HSUPA standard, similarly operates with an unequal split and does not
use the claimed converter. (Id. at 75:2-76:13.) Wi-LAN has failed to persuade the Court that such
testimony is inconsistent with the construction of the “converter” terms.
ii.

Order of operations

The second dispute relates to Apple’s non-infringement defenses for the elements “first
computing means” and “means to combine” in asserted claims 1 and 10. Wi-LAN contends that
Apple’s defense was inappropriately premised on a specific order of operations such that the
“means to combine” must combine “modulated data symbols” that have been both spread and

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randomized before they are combined. The Court construed “modulated data symbols” to mean
“data symbols that have been spread by a spreading code,” which only requires spreading. (Dkt.
No. 302 at 45.) Therefore, according to Wi-LAN, by importing a randomization requirement into
the Court’s construction, Apple is attempting to resurrect an argument that was explicitly rejected
during claim construction.
Apple responds that it did not read a randomization requirement into the term “modulated
data symbols” during trial. Instead, Apple contends that it relied on the antecedent basis of “the
modulated data symbols” referenced in the “means to combine” limitation of claim 1. While not all
modulated data symbols within the ’802 patent need to be randomized, Apple argues that the
modulated data symbols that are being combined in the “means to combine” limitation requires the
randomization to occur. The Court agrees with Apple.
The entirety of claim 1 of the ’802 patent reads as follows:
1. A transceiver for transmitting a first stream of data symbols, the transceiver
comprising:
a. a converter for converting the first stream of data symbols into plural sets of
N data symbols each;
b. first computing means for operating on the plural sets of N data symbols to
produce modulated data symbols corresponding to an invertible
randomized spreading of the first stream of data symbols; and
c. means to combine the modulated data symbols for transmission.
The term, “modulated data symbols,” as construed, only requires spreading and does not
require randomization because neither the specification nor the prosecution history contains any
definitive statement or disclaimer mandating that “modulated data symbols” must be randomized.
(Dkt. No. 302 at 44.) Therefore, any attempt by Apple to import a randomization requirement into
this term would be improper. However, in the Markman opinion the Court also acknowledged that
“randomization is a desirable feature that is addressed by other claim language, such as the term
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‘invertible randomized spreading,’ which also appears in Claim 1.” (Id. at 45.) The
interrelatedness of the terms within claim 1 was the reason the Court concluded that randomization
“should not be imported into the term ‘modulated data symbols.’” (Id.) Accordingly, Dr.
Acampora did not contradict the Court’s claim construction in explaining that “the modulated data
symbols” in the third element of claim 1 refers back to the “modulated data symbols corresponding
to an invertible randomized spreading,” introduced in the second element of claim 1. As a qualified
technical expert, Dr. Acampora was entitled to give his opinion that from his study of the language
in claim 1 and the Court’s constructions of certain terms, those particular modulated data symbols
must be spread and randomized before being combined.
Wi-LAN also contends that dependent claim 4 confirms that Apple’s interpretation of
ordering is incorrect. The Court is not persuaded by an argument on claim construction raised for
the first time in post-trial briefing.
In summary, a reasonable jury could have found (and did find) non-infringement under the
Court’s claim constructions under either of the above non-infringement defenses. Wi-LAN put on
infringement testimony from its expert, Dr. Orsak, and had ample opportunity to cross-examine
Dr. Acampora on each of Apple’s non-infringement positions. The jury heard both sides’
interpretation of the claim language, considered the experts’ competing testimony, and rendered a
verdict of no infringement. As is apparent from the verdict, the jury had reason to believe Dr.
Acampora’s testimony and disbelieve the opinions of Dr. Orsak. This Court may not supplant the
jury’s assignment of credibility or weight attributed as between the experts, as those are sole
functions of the jury. Indeed, Wi-LAN has made no claim that the evidence supporting
non-infringement presented at trial was insufficient, only that Apple’s interpretation of the terms

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conflicts with the Court’s construction. Having determined that there is no inconsistency, the
Court concludes that Wi-LAN has failed to meet its burden of persuasion on this issue and there is
no cause to overturn the jury’s verdict of non-infringement.
VI.

WI-LAN’S ALTERNATIVE REQUEST FOR A NEW TRIAL
Pursuant to Fed. R. Civ. P. 59, Wi-LAN moves for a new trial with respect to issues of

invalidity, infringement, and jury confusion. All of Wi-LAN’s arguments, with the exception of
jury confusion, rely on the same arguments as addressed above. Based on the same reasoning as
already discussed, the Court disagrees with each of Wi-LAN’s infringement arguments and does
not find the verdict to be against the weight of the evidence. However, the Court will address the
jury confusion argument.
Wi-LAN contends that Apple confused the jury by arguing that the asserted claims only
cover Wifi/LAN products rather than cellular products; therefore, the verdict is against the great
weight of the evidence. For support, Wi-LAN cites two things: (1) witnesses being asked whether
the patent uses the term “cellular”; and (2) portions of Apple’s opening and closing statements
asserting that the ’802 patent is not a cell phone patent.
With respect to the first point, it is Wi-LAN’s burden to prove by a preponderance of the
evidence that the accused standards infringe the ’802 patent. If Apple presented evidence Wi-LAN
disputes or finds improper, such as asking witnesses whether the patent includes the term
“cellular,” then the burden shifts to Wi-LAN to make an objection and, if the objection is
overruled, cross-examine the witnesses on the correctness or relevance of such testimony. Here,
Wi-LAN did not object to these questions during the course of the trial and has therefore waived
any objection on the issue. SSL Servs., LLC v. Citrix Sys., Inc., 940 F. Supp. 2d 480, 492 (E.D. Tex.

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Apr. 17, 2013) (“SSL has waived any objection it might have had to the testimony presented at
trial because it failed to object to such testimony during the direct examination at trial.”).
Additionally, Wi-LAN had a full and fair opportunity to cross-examine Apple’s witnesses and
elicit re-direct testimony of its own witnesses during trial after these questions were asked. It is
improper to fail to object during trial while allegedly objectionable testimony is being presented
and then wait until post-verdict briefing to ask for a new trial on the same basis.
Regarding the second point, Apple’s arguments in opening and closing statements that the
’802 patent is not a cell phone patent, the Court has repeatedly instructed the jury that opening and
closing arguments are not evidence. On at least three occasions, the Court explained to the jury that
what the lawyers say, including their opening and closing statements, are not evidence in this case.
(10/15/2013 AM Tr. at 104:2-9; 10/15/2013 PM Tr. at 36:12-16; 10/23/2013 AM Tr. at 26:10-15.)
Absent any actual evidence of jury confusion, the Court finds the jury was not confused by
Apple’s witness questioning on the term “cellular” or the opening or closing statements. Similarly,
the Court does not find the verdict to be so against the great weight of the evidence as to warrant a
new trial.
VII.

CONCLUSION
Based on the foregoing, the Court GRANTS-IN-PART Wi-LAN’s motion for judgment

as a matter of law and finds that claims 1 and 10 of the ’802 patent are not invalid. In all other
respects, Wi-LAN’s motion is DENIED. Accordingly, the Court hereby VACATES the portion
of the Judgment (Dkt. No. 628) that found claims 1 and 10 of the ’802 patent to be invalid.

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SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 2nd day of April, 2014.

____________________________________
RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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