WI-LAN Inc. v. Alcatel-Lucent USA Inc. et al

Filing 445

MOTION for Judgment as a Matter of Law by Alcatel-Lucent USA Inc.. (Attachments: # 1 Text of Proposed Order)(Deoras, Akshay)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
WI-LAN INC.,

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Plaintiff,
v.
ALCATEL-LUCENT USA INC.; et al.
Defendants.

Civil Action No. 6:10-cv-521-LED
Civil Action No. 6:13-CV-00252-LED
CONSOLIDATED CASES
JURY TRIAL DEMANDED

DEFENDANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW THAT CLAIMS
2 AND 5 OF U.S. PATENT NO. 6,381,211, CLAIMS 2, 5, AND 9 OF U.S. PATENT NO.
6,088,326, CLAIM 11 OF U.S. PATENT NO. 6,222,819, AND CLAIMS 11 AND 12 OF U.S.
PATENT NO. 6,195,327 ARE NOT INFRINGED

I.

INTRODUCTION

Wi-LAN asserts claims 2 and 5 of U.S. Patent No. 6,381,211 (“the ‘211 patent”), claims
2, 5, and 9 of U.S. Patent No. 6,088,326 (“the ‘326 patent”), claim 11 of U.S. Patent No.
6,222,819 (“the ‘819 patent”), and claims 11 and 12 of U.S. Patent No. 6,195,327 (“the ‘327
Patent”) (collectively “Asserted Patents”) against various Defendants. The asserted claims of the
‘211, ‘326 and ‘819 patents require (in part):
The ‘211 Patent:
a first code generator (to generate an orthogonal code)
a first decoder (to apply the orthogonal code)
a TDM decoder
a second code generator (to generate an orthogonal code)
a second decoder (to apply the overlay code)
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The ‘326 and ‘819 Patents:
a first code generator (to generate an orthogonal code)
a first encoder (to encode the orthogonal code)
a TDM encoder
a second code generator (to generate an overlay code)
a second encoder (to apply the overlay code)
The Court has construed the overlay code as an “an additional code that subdivides an
orthogonal channel”, i.e., a second code. The overlay code is generated by the overlay code
generator and applied by the second decoder or second encoder.
It is undisputed that the accused products use only a single code, the OVSF code, and do
not contain an overlay code, the second code generator, or the second encoder/decoder required
by the claims as per the testimony of Wi-LAN’s expert, Dr. Wells. (Tr. 102:13-17, 103:12-23,
134:6-136:18.)
The asserted claims of the ’327 patent require establishing a channel pool of CDMA code
channels for establishing wireless links with subscriber terminals and then removing channels
from the pool. When a channel is removed from the channel pool, it is no longer available to
establish a wireless link with a subscriber terminal. The asserted claims of the ’327 patent also
require the base station to receive “parameters pertaining to a wireless link within the cell
indicative of whether that wireless link is subject to interference from signals generated by said
other cells.” There is no dispute that these parameters must be indicative of intercell
interference. There is no dispute that 1) the CQI received by the accused Ericsson and AlcatelLucent base stations is just a number (0-30); 2) it is generated by the handset; and 3) how a
handset calculates the CQI is proprietary. In fact, there is no evidence of how any handset

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actually calculates the CQI, let alone that it is indicative of interecell interference.
II.

LEGAL STANDARD

JMOL must be granted where “‘a reasonable jury would not have a legally sufficient
evidentiary basis to find for the [non-moving] party on that issue.’” Mirror Worlds, LLC v.
Apple, Inc., 784 F. Supp. 2d 703, 710 (E.D. Tex. 2011) (quoting Fed. R. Civ. P. 50(a)), aff’d, 692
F.3d 1351 (Fed. Cir. 2012). “A court should render judgment as a matter of law when a party has
been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable
jury to find for the party on that issue.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 149 (2000); see also, Fed. R. Civ. P. 50(a) and (b). In deciding a motion for judgment as a
matter of law, the proper inquiry is whether sufficient evidence exists to support non-movant’s
claim when the evidence is viewed most favorably to the non-movant. Id. at 150. Importantly,
“[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.” Id. at 150-151. “The court will
evaluate only whether the non- movant presented sufficient evidence; not whether he presented
the most convincing evidence imaginable.” Brochtrup v. Mercury Marine, 426 F. App’x 335,
338 (5th Cir. 2011) (emphasis in original).
Defendants are entitled to JMOL because, based on the record, no reasonable jury could
find Defendants infringe any of the Asserted Patents, either literally or under the doctrine of
equivalents.

NO LITERAL INFRINGEMENT
Literal infringement requires that each and every limitation in a patent claim be present in
an accused device. Freedman Seating Co. v. Am. Seating Co., 420 F.3d 1350, 1358 (Fed. Cir.
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2005); Unique Concepts, Inc. v. Brown, 939 F.3d 1558, 1562 (Fed. Cir. 1991).
As demonstrated above, several limitations in the asserted claims for each of the Asserted
Patents are absent in the accused devices. Thus, there is no literal infringement.

NO INFRINGEMENT UNDER THE DOCTRINE OF EQUIVALENTS
Defendants bear the burden of proof of evidence of infringement under the doctrine of
equivalents. Miken Composites, L.L.C. v. Wilson Sporting Goods Co., 515 F.3d 1331, 1340-41
(Fed. Cir. 2008); Universal Gym Equipment, Inc. v. ERWA Exercise Equipment, Inc., 827 F.2d
1542, 1548 (Fed. Cir. 1987). The Federal Circuit has “articulated distinct rules for the evidence
showing infringement under the doctrine of equivalents.” nCube, 436 F.3d at 1326 (affirming
JMOL of no infringement under the doctrine of equivalents). A plaintiff “must present evidence
and argument concerning the doctrine and each of its elements,” and “[t]he evidence and
argument on the doctrine of equivalents cannot merely be subsumed in [a] plaintiff’s case of
literal infringement.” Id. at 1325 (original emphasis) (quoting Lear Siegler, Inc. v. Sealy Mattress
Co. of Mich., Inc., 873 F.2d 1422, 1425 (Fed. Cir. 1989)); see also Tex. Instruments, Inc. v.
Cypress Semiconductor Corp., 90 F.3d 1558, 1567 (Fed. Cir. 1996).
As the Federal Circuit held in Panduit Corp. v. Hellermannyton Corp., 451 F.3d 819, 830
(Fed. Cir. 2006), the doctrine of equivalents cannot be relied upon if applying the doctrine would
vitiate an entire claim element. Yet that is what Wi-LAN, through its expert Dr. Wells, attempts
to do here by relying on the same element in the accused devices to satisfy both the first and
second code generator elements of the asserted claims and both the first and second
encoder/decoder elements of the claims. Finally, the alleged equivalents were foreseeable, there
was no particularized testimony on doctrine of equivalents, and applying the doctrine of

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equivalents in the manner Wi-LAN has asserted would capture or ensnare the prior art. Thus,
there is no infringement under the doctrine of equivalents.
In this case, despite having asserted infringement under the doctrine of equivalents,
Plaintiff presented did not meet its burden on evidence or argument on this point. Defendants are
thus entitled to judgment as a matter of law of non-infringement under the doctrine of
equivalents.

CONCLUSION
Wi-LAN has not presented evidence upon which the jury could reach a verdict of
infringement. Judgment as a matter of law of non-infringement should be entered.

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Dated: July 10, 2013

Respectfully submitted,
By: /s/ Eric H. Findlay______________
Stephen S. Korniczky (pro hac vice)
Martin R. Bader (pro hac vice)
James Geriak (pro hac vice)
SHEPPARD,MULLIN, RICHTER
&HAMPTON
12275 El Camino Real, Suite 200
San Diego, California 92130-2006
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Eric Hugh Findlay (TX Bar 00789886)
Roger Brian Craft (TX Bar 04972020)
FINDLAY CRAFT
6760 Old Jacksonville Highway
Suite 101
Tyler, Texas 75703
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
ATTORNEYS FOR DEFENDANTS
HTC CORPORATION, HTC AMERICA,
INC. AND EXEDEA INC.

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Dated: July 10, 2013

Respectfully submitted,
By: /s/Akshay S. Deoras______________
Gregory S. Arovas (pro hac vice)
Robert A. Appleby (pro hac vice)
Jeanne M. Heffernan (pro hac vice)
Akshay S. Deoras (pro hac vice)
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, NY 10022
Tel: [phone]
Fax: [phone]
[e-mail]
Michael E. Jones
Allen F. Gardner
POTTER MINTON PC
110 N. College, Suite 500 (75702)
P.O. Box 359
Tyler, Texas 75710
[phone]
[phone] (Facsimile)
[e-mail]
[e-mail]

ATTORNEYS FOR DEFENDANT
ALCATEL-LUCENT USA INC.

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Dated: July 10, 2013

Respectfully submitted,
/s/ Richard L. Wynne, Jr.
Bruce S. Sostek (Lead Attorney)
State Bar No. 18855700
[e-mail]
Richard L. Wynne, Jr.
State Bar No. 24003214
[e-mail]
THOMPSON & KNIGHT LLP
1722 Routh Street, Suite 1500
Dallas, Texas 75201
214.969.1700
214.969.1751 (facsimile)
ATTORNEYS FOR DEFENDANTS
ERICSSON INC.
TELEFONAKTIEBOLAGET LM ERICSSON
SONY MOBILE COMMUNICATIONS AB
and
SONY MOBILE COMMUNICATIONS
(USA) INC.

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing document was served on all counsel
of record on July 10, 2013, by electronic mail.
/s/ Martin R. Bader
Martin R. Bader

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