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

Filing 481

MOTION for New Trial CONCERNING THE NON-INFRINGEMENT OF CERTAIN CLAIMS OF U.S. PATENT NOS. 6,088,326; 6,222,819; 6,195,327 AND 6,381,211 by WI-LAN Inc.. (Attachments: # 1 Exhibit A - Trial Transcript (July 9, 2013 Morning Session), # 2 Exhibit B - Trial Transcript (July 11, 2013 Morning Session), # 3 Exhibit C - Trial Transcript (July 11, 2013 Afternoon Session), # 4 Exhibit D - Trial Transcript (July 10, 2013 Afternoon Session), # 5 Exhibit E - PX-1 - U.S. Patent No. 6,088,326, # 6 Exhibit F - PX-2 - U.S. Patent No. 6,195,327, # 7 Text of Proposed Order)(Weaver, David)

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

Doc. 481

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
WI-LAN INC.,
Plaintiff,
v.
ALCATEL-LUCENT USA INC.; et al.,
Defendants.

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Civil Action No. 6:10-cv-521-LED
Civil Action No. 6:13-cv-252-LED
CASES CONSOLIDATED FOR
TRIAL
JURY TRIAL DEMANDED

WI-LAN INC.’S MOTION FOR A NEW TRIAL CONCERNING
THE NON-INFRINGEMENT OF CERTAIN CLAIMS OF U.S. PATENT
NOS. 6,088,326; 6,222,819; 6,195,327 AND 6,381,211

Dockets.Justia.com

Table of Contents
LEGAL STANDARD..................................................................................................................... 1 
ARGUMENT .................................................................................................................................. 2 
I.  Defendants’ Arguments Invited The Jury To Completely Disregard The Full Scope Of
The Asserted Claims of the ‘326, ‘819 and ‘211 Patents ........................................................... 2 
A.  The asserted claims of the ’326, ’819 and ’211 Patents do not require a “separate”
overlay code ............................................................................................................................ 2 
B.  Claim 5 of the ’326 Patent and claim 11 of the ’819 Patent do not exclude orthogonal
codes generated on-the-fly ...................................................................................................... 6 
C.  Defendants’ improper arguments requiring a “separate” code confused the jury and
warrant a new trial .................................................................................................................. 7 
II. 
Defendants’ Arguments Excluded The Preferred Embodiment From The Scope Of The
Asserted Claims of The ’326 Patent In An Effort To Confuse The Jury .................................... 8 
III.  Defendants Intentionally Obfuscated The Plain Language Of The Claims And Grafted
Extraneous Limitations Into Claim 11 Of The ’327 Patent ...................................................... 10 
IV. 

A New Trial Is Also Warranted On Damages And On Validity .................................... 11 

CONCLUSION ............................................................................................................................. 12 

i

Table of Authorities
Cases 
Johnson v. Offshore Express, Inc.,
845 F.2d 1347 (5th Cir. 1988) ................................................................................................ 3, 7
Linear Technology Corp. v. International Trade Commission,
566 F.3d 1049 (Fed. Cir. 2009) .................................................................................................. 6
Nissho–Iwai Co., Ltd. v. Occidental Crude Sales,
729 F.2d 1530 (5th Cir.1984) ..................................................................................... 2, 7, 10, 11
Shows v. Jamison Bedding, Inc.,
671 F.2d 927 (5th Cir. 1982) ...................................................................................................... 2
Smith v. Trans World Drilling Co.,
773 F.2d 610 (5th Cir. 1985) ...................................................................................................... 1
Vitronics Corp. v. Conceptronic, Inc.,
90 F.3d 1576 (Fed. Cir. 1996) .................................................................................................. 10
Whitehead v. Food Max of Miss., Inc.,
163 F.3d 265 (5th Cir. 1984) ...................................................................................................... 2
Rules 
FED. R. CIV. P. 59(a)(1) ................................................................................................................... 1
FED. R. CIV. P. 60(b) ....................................................................................................................... 2

ii

Plaintiff Wi-LAN Inc. (“Wi-LAN”) requests a new trial on infringement of all asserted
claims, as well as validity of the asserted claims of the ’326, ’819 and ’211 Patents.1 Wi-LAN
makes this request because the verdict is the result of the jury’s confusion regarding the
interpretation of the asserted claims caused by Defendants’ trial strategy—in which Defendants’
counsel and expert witnesses repeatedly distorted the Court’s claim constructions and
misdirected the jury with incorrect legal argument.
Defendants’ mischaracterization of the Court’s claim constructions coupled with
Defendants’ repeated demonization of Wi-LAN’s licensing model thoroughly confused the jury
as to the specific fact issues being tried and generated an immense prejudice against Wi-LAN.
Because of Defendants’ campaign of creating confusion and prejudice in the jurors’ minds, the
trial in this case accomplished little more than to adjudicate infringement under a distorted claim
interpretation that was wholly unsupported by the Court’s Markman Order or Federal Circuit
precedent. Wi-LAN seeks a new trial in order to obtain a balanced and fair trial on the merits
where both sides engage on relevant factual issues employing the Court’s actual claim
constructions.
LEGAL STANDARD
“The court may, on motion, grant a new trial on all or some of the issues[.]” FED. R. CIV.
P. 59(a)(1). The trial court’s power to grant a new trial has “long been regarded as an integral
part of trial by jury.” See Smith v. Trans World Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985).
“[I]f the trial judge is not satisfied with the verdict of a jury, he has the right—and indeed the
duty—to set the verdict aside and order a new trial.” Id. In deciding to grant a new trial, the
Court “need not take the view of the evidence most favorable to the verdict winner . . . but may
1

Wi-LAN concurrently renews its Motion for Judgment As A Matter of Law as to the validity of
the asserted claims of the ’326, ’819 and ’211 Patents. In addition, as explained in Section IV
below, Wi-LAN requests a new trial on damages as well.
1

weigh the evidence.” Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 270 (5th Cir. 1984).
“A trial judge may order a new trial if he suspects that the jury verdict reflects confusion.”
Nissho–Iwai Co., Ltd. v. Occidental Crude Sales, 729 F.2d 1530, 1538 (5th Cir.1984). The Fifth
Circuit considers three factors—simplicity of the issues, the extent to which the evidence is in
dispute, and the absence of any pernicious or undesirable occurrence at trial—as factors that
weigh against granting a new trial. See Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930-931
(5th Cir. 1982). “When one or more of these factors are absent, however, [the Fifth Circuit] will
affirm a new trial order even if on our own review of the ‘cold record’ we are not convinced that
the jury verdict was against the great weight of the evidence.” See id.
Moreover, a court may grant a motion for new trial under Rule 60(b) on the basis of
“fraud, . . . misrepresentation, or misconduct by an opposing party[.]” See FED. R. CIV. P. 60(b).
Granting a motion under Rule 60(b) is within the discretion of the trial court, and because this
rule “is remedial in nature it should be liberally construed.” Johnson v. Offshore Express, Inc.,
845 F.2d 1347, 1358 (5th Cir. 1988).
ARGUMENT
I.

DEFENDANTS’ ARGUMENTS INVITED THE JURY TO COMPLETELY DISREGARD THE
FULL SCOPE OF THE ASSERTED CLAIMS OF THE ’326, ’819 AND ’211 PATENTS
A. The asserted claims of the ’326, ’819 and ’211 Patents do not require a
“separate” overlay code
Defendants’ presentation on non-infringement of the ’326, ’819 and ’211 Patents

centered on the argument that neither the HSDPA standard nor the accused products generated a
“separate” overlay code or “two sets of codes.” See Trial Transcript 116:12-13 (July 9, 2013
Morning Session) (cited portions attached as Exhibit A). Indeed, Dr. Wicker testified that the
basis of his opinion was that the overlay code had to be a “separate” code from the orthogonal
code. See Trial Transcript 117:8-16 (July 11, 2013 Morning Session) (cited portions attached as
2

Exhibit B). In doing so, Defendants’ experts grafted a variety of limitations on the asserted
claims:


See Ex. B, Trial Transcript 117:8-16 (July 11, 2013 Morning Session) (Dr.
Wicker arguing, without any basis in the claims or the Court’s constructions, that
the asserted claims of the ’326, ’819 and ’211 Patents required the overlay code to
be “a separate sequence” and a “separate code”)



See Ex. B, Trial Transcript 82:4-6 (July 11, 2013 Morning Session) (Dr. Wicker
arguing, without any basis in the claims or the Court’s constructions, that the
asserted claims of the ’326, ’819 and ’211 Patents required the overlay code to be
“separate” from the orthogonal code)



See Ex. B, Trial Transcript 30:14-18 (July 11, 2013 Morning Session) (Dr.
Wicker arguing, without any basis in the claims or the Court’s constructions, that
the asserted claims of the ’326, ’819 and ’211 Patents required that overlay code
had to be a completely separate sequence without any overlap with the orthogonal
code)



See Ex. B, Trial Transcript 80:8-13 (July 11, 2013 Morning Session) (Dr. Wicker
arguing, without any basis in the claims or the Court’s constructions, that the
asserted claims of the ’326, ’819 and ’211 Patents excluded one code that
encompassed both overlay and orthogonal codes)



See Ex. B, Trial Transcript 161:17-23 (July 11, 2013 Morning Session) (Dr.
Olivier arguing, without any basis in the claims or the Court’s constructions, that
the asserted claims of the ’326, ’819 and ’211 Patents required the overlay code to
be a “separate code”)

3



See Trial Transcript 20:15-20 (July 11, 2013 Afternoon Session) (cited portions
attached as Exhibit C) (Dr. Akl arguing, without any basis in the claims or the
Court’s constructions, that the asserted claims of the ’211 Patents required “two
independent codes”)

Wi-LAN raised its objection to Defendants’ non-infringement theory during Defendants’
cross-examination of Dr. Wells.

See Ex. A, Trial Transcript 100:24-101:17 (July 9, 2013

Morning Session); see also id. at 115:24-116:18. And, in light of the Court’s ruling on WiLAN’s objection, Wi-LAN resorted to fleshing out the baseless nature of Defendants’ noninfringement theory during cross-examination of Defendants’ expert witnesses. See generally
Ex. B, Trial Transcript 80:1-13, 81:15-82:6, 161:17-162:3 (July 11, 2013 Morning Session).
However, by then, Defendants’ mischaracterization of the Court’s claim constructions had
already been implanted in the jury’s mind and, despite Wi-LAN’s efforts during crossexamination, that bell could not be un-rung.
None of these arguments served any legitimate purpose other than to thoroughly confuse
the jury into thinking that the claims required the overlay code to be a “separate” code or an
“independent” code. See Ex. B, Ex. C. Nonetheless, Defendants’ experts testified that the jury
should find non-infringement because the accused products do not have an overlay code
“separate” from the orthogonal code. See id. In so doing, however, Defendants’ experts
improperly shoehorned a new limitation into the claims that did not exist.
Neither the intrinsic record nor the Court’s Markman Order require the overlay codes to
be separate from the orthogonal codes. In fact, during the Markman hearing, Defendants
requested the Court to insert the word “separate” into the construction for “overlay code.” See
Dkt. No. 201 at 58 (“… I think a better construction, quite frankly, is: A second code separate

4

from the orthogonal code that subdivides an orthogonal channel.”); see id. at 61 (“… the fact that
these are two separate codes is important.”) The Court, however, declined to insert such a
limitation requiring overlay codes be a “separate” code. See Dkt. 200 at 13-14. Despite the Court
expressly rejecting Defendants’ position, Defendants nonetheless brought this argument through
the back door by stating that the word “additional” in the Court’s construction of “overlay code”
meant a “separate” code. See Ex. B, Trial Transcript 117:8-16 (July 11, 2013 Morning Session).
This testimony finds no basis in the Court’s construction. Had the Court construed the “overlay
code” to be a “separate” code, the Markman order would have so reflected. But the Court did not
include the word “separate” in its construction, despite Defendants’ request to import such a
limitation during the Markman hearing. Defendants’ experts successfully confused the jury by
making an end-run around the Court’s constructions and importing extraneous limitations into
the claims.
Lastly, contrary to Defendants’ argument at trial, Federal Circuit precedent dictates that
two elements of a claim are not required to be completely separate from each other in the
absence of any such requirement in the intrinsic record. See Linear Technology Corp. v.
International Trade Commission, 566 F.3d 1049, 1054-56 (Fed. Cir. 2009) (“[w]e agree with the
Commission’s construction of ‘second circuit’ and ‘third circuit,’ defining the terms broadly to
not require entirely separate and distinct circuits.”) Similarly here, there is absolutely nothing in
the intrinsic record that mandates “overlay codes” to be separate from the “orthogonal codes.”
Defendants’ trial theme was in clear violation of established Federal Circuit precedent, and thus,
further mandates a new trial on the merits.2

2

Defendants’ arguments with respect to the “second encoder” and “overlay code generator”
elements of the asserted claims of the ’326 and ’819 Patents, and “second decoder” and “overlay
code generator” elements of the ’211 Patents were predicated solely on their theory that the
5

B. Claim 5 of the ’326 Patent and claim 11 of the ’819 Patent do not
exclude orthogonal codes generated on-the-fly
The specification of the ’326 and ’819 Patents describe two techniques for generating
orthogonal codes. One of these techniques is to generate the orthogonal codes “on-the-fly.” See
U.S. Patent No. 6,088,326 col. 3 ll. 31-33 (attached as Exhibit E). Another is to store the
orthogonal codes in storage and retrieve the codes as required. Id. at col. 3 ll. 33-37. Neither the
claim language nor the intrinsic record requires these two techniques to be mutually exclusive
such that the presence of one necessarily reflects the absence of another. Nonetheless, during his
testimony, Dr. Wicker added a negative limitation to the claims requiring these techniques to be
mutually exclusive. See Ex. B, Trial Transcript 42:11-43:4 (July 11, 2013 Morning Session); see
also id. at 43:5 (“So it’s one or the other…”). Dr. Wicker improperly shoehorned this limitation
into claim 5 of the ’326 Patent and claim 11 of the ’819 Patent by testifying that the claim
excluded any implementation that generated orthogonal codes “on-the-fly.” See id. at 43:5-20.
Dr. Olivier provided no explanation, other than to simply agree with Dr. Wicker with respect to
the “storage element.” See id. at 149:20-22.
Though there is no dispute that claim 5 of the ’326 Patent and claim 11 of the ’819 Patent
require orthogonal codes to be stored in a storage, Defendants’ argument at trial went a step

asserted claims required the “overlay codes” to be “separate” from the “orthogonal codes.” See
Trial Transcript 179:25-180:2 (July 10, 2013 Afternoon Session) (cited portions attached as
Exhibit D) (Dr. Wicker testifying that “[f]urthermore, there was no second encoder. Without any
overlay codes, there’s no encoder to encode them.”); see also Ex. B, Trial Transcript 33:18-34:2
(July 11, 2013 Morning Session); see id. at 149:6-10 (Dr. Olivier testifying that “[t]here’s also –
because there’s no overlay code, there’s no overlay code generator … And since there’s no
overlay code, you don’t have a second encoder for applying the overlay code.”); Ex. C, Trial
Transcript 25:16-18 (July 11, 2013 Afternoon Session) (Dr. Akl testifying that “[s]o it makes
sense, if there is no overlay code and no overlay code generator, there would be no second
decoder.”). Therefore, Defendants’ arguments relating to the “second encoder,” “second
decoder” and “overlay code generator” elements were improper for exactly the same reasons as
their arguments relating to the “overlay code” element.
6

further. Neither Dr. Wicker nor Dr. Olivier provided any evidence as to why it would be
appropriate to import a negative limitation into these claims.3
C. Defendants’ improper arguments requiring a “separate” code
confused the jury and warrant a new trial
This Court has full discretion to order a new trial if it “suspects that the jury verdict
reflects confusion.” Nissho-Iwai Co. Ltd. v. Occidental Crude Sales, 729 F.2d 1530 at 1538 (5th
Cir. 1984). Indeed, the Court has authority under Rule 60(b) to order a new trial on the basis of
“misrepresentation, or misconduct by an opposing party.” Johnson v. Offshore Express Inc., 845
F.2d 1347 at 1358 (5th Cir. 1988).
Defendants’ arguments requiring a “separate” code did exactly that—they misrepresented
the Court’s construction of “overlay code.”

Defendants severely distorted the Court’s

construction for the term “overlay code” and inserted extraneous limitations. See Ex. B, Trial
Transcript 82:4-6 (July 11, 2013 Morning Session) (“I do agree that it has to be separate. Yes”).
This, despite the fact that the Court, during the Markman hearing, squarely rejected Defendants’
attempt to import the same extraneous limitation requiring the overlay codes to be “separate.”
See Dkt. No. 201 at 58 (“… I think a better construction, quite frankly, is: A second code
separate from the orthogonal code that subdivides an orthogonal channel.”); id. at 61 (“… the
fact that these are two separate codes is important.”). The Court, however, declined to insert such
a limitation requiring overlay codes be a “separate” code. See Dkt. 200 at 13-14. Defendants’
importation of a negative limitation into claim 5 of the ’326 Patent and claim 11 of the ’819
Patent, as described in Section I.B above similarly misdirected the jury. See Ex. B, Trial
Transcript 42:11-43:4 (July 11, 2013 Morning Session); see id. at 43:5-20; id. at 149:20-22.
These arguments served no purpose other than to confuse the jury. This Court should, therefore,
3

Dr. Akl did not address this issue in his trial testimony.
7

order a new trial in light of Defendants’ misrepresentation and distortion of the Court’s claim
constructions.
II.

DEFENDANTS’ ARGUMENTS EXCLUDED THE PREFERRED EMBODIMENT FROM THE
SCOPE OF THE ASSERTED CLAIMS OF THE ’326 PATENT IN AN EFFORT TO
CONFUSE THE JURY
Dr. Wicker testified that neither the HSDPA standard nor the accused products infringed

the asserted claims of the ’326 Patent because they did not have a “second encoder, selectively
operable instead of the TDM encoder.” See Trial Transcript 200:11-24 (July 10, 2013 Afternoon
Session) (cited portions attached as Exhibit D). In an attempt to prove non-infringement, Dr.
Wicker completely distorted the claim language and interpreted “selectively operable” to mean
that a single frequency channel is either divided using overlay codes, or divided using TDM
techniques, but both cannot be used at the same time. See id. at 201:3-4 (“… you use one or you
use the other, but not both” (emphasis added)); id. at 202:19-20 (“At any one time, you only get
one of the solutions.” (emphasis added)). Dr. Wicker’s impromptu (and previously undisclosed)
opinion on claim interpretation completely disregarded the preferred embodiment disclosed in
Figure 15A of the ’326 Patent illustrating the same single frequency channel being selectively
divided using overlay codes and TDM techniques, at the same time. See Ex. E, U.S. Patent No.
6,088,326 Fig. 15A. In fact, Dr. Wicker’s testimony clearly indicated to the jury that Figure 15A
was not within the scope of the claims. See Ex. B, Trial Transcript 97:5-7 (July 11, 2013
Morning Session) (“The selective operability in the claim language, as opposed to this figure,
says that we have a choice.” (emphasis added)).4
The specification of the ’326 Patent explains that the same single frequency channel can
have RW codes that are divided using TDM techniques (e.g., RW5 to RW11 in Fig 15A) and, at
4

Dr. Olivier adopted Dr. Wicker’s testimony with respect to the “selectively operable” claim
element. See Ex. B, Trial Transcript 149:11-19 (July 11, 2013 Morning Session). Dr. Akl did not
address this issue in his trial testimony.
8

the same time, have RW codes that are divided using overlay codes (e.g., RW14 and RW15 in
Fig. 15A). See Ex. E, U.S. Patent No. 6,088,326 col. 19 ll. 1-4 (“As illustrated by RW5 to RW11,
TDM can be used on the downlink traffic channels to enable more than one CT to ST
communication to take place on the same RW channel during each frame.” (emphasis added));
id. at col. 19 ll. 12-17 (“It should be noted that, in both FIGS. 15A and 15B, the channels RW14
and RW15 are reserved as a call control channel and an link acquisition channel, respectively,
and overlay codes are employed on these channels, irrespective of whether the path is a
downlink or an uplink path.” (emphases added)).
By testifying that the claims require the overlay codes and TDM techniques cannot be
applied to the same single frequency channel, Dr. Wicker and Dr. Olivier improperly excluded a
preferred embodiment from the scope of the claims. Moreover, neither Dr. Wicker nor Dr.
Olivier provided any evidentiary support for their claim construction excluding a preferred
embodiment from the asserted claims. Indeed, it is well established that an interpretation of a
claim that excludes a preferred embodiment is “rarely, if ever, correct.” Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576 at 1583 (Fed. Cir. 1996) (“… a preferred (and indeed only)
embodiment in the specification would not fall within the scope of the patent claim. Such an
interpretation is rarely, if ever, correct and would require highly persuasive evidentiary
support….”).
Dr. Wicker’s and Dr. Olivier’s testimony successfully confused the jury into believing
that the scope of the claims was much narrower than the claims as construed by the Court. This
argument served no purpose other than to conflate the issues for the jury and this Court has full
discretion to order a new trial because “the jury verdict reflects confusion.” Nissho-Iwai Co. Ltd.
v. Occidental Crude Sales, 729 F.2d 1530 at 1538 (5th Cir. 1984).

9

III.

DEFENDANTS INTENTIONALLY OBFUSCATED THE PLAIN LANGUAGE OF THE
CLAIMS AND GRAFTED EXTRANEOUS LIMITATIONS INTO CLAIM 11 OF THE ’327
PATENT

In addition to severely distorting the claim elements of the overlay patents (i.e., the ’326,
’819 and ’211 Patents), Defendants read in extraneous limitations into claim 11 of the ’327
Patent in arguing non-infringement. Despite the fact that the claim only requires the “parameter”
to be “indicative of” intercell interference, Dr. Wicker testified that the parameter must “only
measure the interference from other cells.” See Ex. B, Trial Transcript 84:22-25 (July 11, 2013
Morning Session).5
Dr. Wicker also read in yet another limitation into claim 11 of the ’327 Patent when he
testified that neither the HSDPA standard nor the accused products infringed claim 11 because
they didn’t “lock” the channels due to intercell interference. See id. at 55:12-13 (“We’re locking
them out from all users, not simply reassigning them”); see also id. at 70:13-16 (“There is no
situation in which one of those channels is locked out, taken out of use because of interference
from other cells.”). However, nothing in claim 11 of the ’327 Patent requires the channels to be
“locked” or “locked out” as Dr. Wicker testified. In fact, Dr. Wicker imported a limitation from a
different, unrelated, and non-asserted claim (claim 5 of the ’327 Patent) that requires designating
“one or more of said traffic channels as locked channels” into claim 11 of the ’327 Patent. See
U.S. Patent No. 6,195,327 cl. 5 (attached as Exhibit F).
None of these arguments served any legitimate purpose, and in making these arguments,
Defendants confused the jury on what was required by the claims. This Court has full discretion

5

Dr. Olivier provided no additional explanation, other than to simply agree with Dr. Wicker’s
opinions and provide conclusory statements. See Ex. B, Trial Transcript 138:21-139:7 (July 11,
2013 Morning Session); id. at 140:23-141:1; id. at 154:3-5. Dr. Akl provided no testimony on
this issue.
10

to order a new trial if it “suspects that the jury verdict reflects confusion.” Nissho-Iwai Co. Ltd.
v. Occidental Crude Sales, 729 F.2d 1530 at 1538 (5th Cir. 1984).
IV.

A NEW TRIAL IS ALSO WARRANTED ON DAMAGES AND ON VALIDITY6
That the jury was thoroughly confused by Defendants’ trial strategy is further reflected in

the verdict form where the jury answered the damages issue, finding zero damages, despite
finding non-infringement and invalidity. See Dkt. No. 465 at 4. Given the jury’s finding on noninfringement and invalidity, and the explicit instructions on the Verdict Form, the jury had no
reason to respond to Question 4. Id. Indeed, Question 4 of the Verdict Form requests damages
only for those claims that the jury has “found infringed and not invalid.” See id..
However, because a new trial is warranted on infringement, and because judgment should
be rendered for Wi-LAN on the validity of the asserted claims (for the reasons stated in WiLAN’s Renewed Motion for Judgment As A Matter Of Law Of No Invalidity),7 Wi-LAN
believes that it is entitled to a new trial not only on infringement but on damages as well.
Indeed, if the claims are found infringed, Wi-LAN is entitled to no less than a reasonable royalty
for Defendants’ infringement of the asserted claims. See 35 U.S.C. §284. There was sufficient
evidence of a reasonable royalty damage amount adduced at trial, including the expert opinions
of Mr. Jarosz, or alternatively the expert damages opinions of Defendants’ own experts. See Ex.
C, Trial Transcript 54:11-25 (July 11, 2013 Afternoon Session); id. at 153:7-154:2. Therefore, if
the claims are found infringed, Wi-LAN is entitled to a new trial where the jury can determine
the appropriate reasonable royalty, which is not currently reflected in the jury’s verdict.
6

In the event Wi-LAN’s Renewed Motion for JMOL on Validity is not granted, a new trial on
validity is warranted.
7

Should this Court deny Wi-LAN’s Renewed Motion for Judgment As A Matter Of Law Of No
Invalidity, as explained in Wi-LAN’s Renewed Motion, the jury’s invalidity findings are against
the great weight of the evidence. Therefore, at the very least, Wi-LAN is entitled to a new trial
on validity.
11

CONCLUSION
Wi-LAN acknowledges that the Court has invested considerable resources in the first trial
against the Defendants, but a new trial is particularly warranted here. Defendants’ strategy was to
confuse the jury to the point where there could be no clarity on how the issue of infringement
should even be decided. In doing so, Defendants avoided the correct framework—the claims and
the Court’s constructions. This Court should not validate Defendants’ strategy by entering
judgment of non-infringement without a new trial that adjudicates the question under the correct
framework—the claims and the Court’s constructions.
For the reasons set forth above, Wi-LAN respectfully requests that this Court grant WiLAN’s motion for new trial on the issue of infringement and damages, and if the Court denies
Wi-LAN’s motion for judgment as a matter of law on validity, Wi-LAN also requests a new trial
on the validity of the asserted patent claims.

12

Dated: August 13, 2013

Respectfully submitted,
By: /s/David B. Weaver
David B. Weaver (TX Bar 00798576)
Lead Attorney
Avelyn M. Ross (TX Bar 24027817)
Ajeet P. Pai (TX Bar 24060376)
Syed K. Fareed (TX Bar 24065216)
Jeffrey T. Han (TX Bar 24069870)
Seth A. Lindner (TX Bar 24078862)
VINSON & ELKINS LLP
2801 Via Fortuna, Suite 100
Austin, TX 78746
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Steve R. Borgman (TX Bar 02670300)
Gwendolyn Johnson Samora
(TX Bar 00784899)
VINSON & ELKINS LLP
1001 Fannin Street, Suite 2500
Houston, TX 77002-6760
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Local Counsel
Johnny Ward (TX Bar No. 00794818)
Wesley Hill (TX Bar No. 24032294)
Claire Abernathy Henry
(TX Bar No. 24053063)
Ward & Smith Law Firm
P.O. Box 1231
1127 Judson Rd., Ste. 220
Longview, TX 75606-1231
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
claire@wsfirmcom
Attorneys for Plaintiff Wi-LAN Inc.
13

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a). As such, this document was served on all counsel who are
deemed to have consented to electronic service on this the 13th day of August, 2013.

/s/David B. Weaver
David B. Weaver

14