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

Filing 492

RESPONSE to Motion re 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 filed by Alcatel-Lucent USA Inc., Ericsson Inc., Exedea INC., HTC America, Inc., HTC Corporation, Sony Mobile Communications (USA) Inc., Sony Mobile Communications AB, Telefonaktiebolaget LM Ericsson. (Attachments: # 1 Exhibit A: Markman Transcript, # 2 Exhibit B: Trial Transcript, # 3 Exhibit C: Trial Transcript, # 4 Exhibit D: Trial Transcript, # 5 Exhibit E: Trial Transcript, # 6 Exhibit F: PX 1, # 7 Exhibit G: PX 2, # 8 Exhibit H: PX 3, # 9 Text of Proposed Order)(Heinlen, James)

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

CIVIL ACTION NO. 6:10–CV–521–LED

ALCATEL–LUCENT USA INC., et al.,
Defendants.

WI-LAN INC.,
Plaintiff,
v.

CIVIL ACTION NO. 6:13–CV–252–LED

HTC CORPORATION, et al.,
Defendants.

DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR NEW TRIAL
CONCERNING THE NON-INFRINGEMENT OF THE PATENTS-IN-SUIT

TABLE OF CONTENTS
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Points and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Defendants did not “demonize” Wi-LAN. . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Defendants did not “distort[] the Court’s claim
construction.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. Wi-LAN is not entitled to a new trial regarding the
overlay-code patents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
a. Defendants’ experts applied the Court’s
construction for “overlay code” in the overlay-code
patents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
i. Whether the accused products could infringe
without a “separate” overlay code was a fact
issue, not a claim-construction issue. . . . . . . . . . . . . . . . . . . . . . 3
ii. The Court did not reject Defendants’ position
that the additional overlay codes must be
separate from the orthogonal code. . . . . . . . . . . . . . . . . . . . . . . 5
iii. Wi-LAN ignores the second part of the Court’s
claim construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
b. Defendants’ experts testified properly regarding the
“storage” element in the overlay-code patents. . . . . . . . . . . . . . . . . . . 6
c. Defendants’ experts testified properly regarding the
“selectively operable” element in the overlay-code
patents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
C. Wi-LAN is not entitled to a new trial on the intercellinterference patent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1. Defendants’ experts testified properly regarding the
“indicative of . . . interference” element of the
intercell-interference patent. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10

2. Defendants’ experts testified properly regarding the
“channel pool” element of the intercell-interference
patent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12

– ii –

D. Wi-LAN is not entitled to a new trial on validity and
damages.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14

E. The jury was not confused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

19

– iii –

TABLE OF AUTHORITIES

Dawson v. Wal-Mart Stores, Inc.,
978 F.2d 205 (5th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place,
62 F.3d 767 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Morreale v. Downing,
630 F.2d 286 (5th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Sibley v. Lemaire, ,
184 F.3d 48 (5th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
z4 Techs. Inc. v. Microsoft Corp.,
No. 6:06-cv-142, 2006 U.S. Dist. LEXIS 58374 (Aug. 18, 2006 . . . . . . . . . . . . . . . 1

– iv –

PRELIMINARY STATEMENT
The jury heard and carefully considered the evidence in this case, weighed the credibility of
the witnesses, and rendered its verdict. Wi-LAN’s motion for new trial attempts to pick out
sound bites from the testimony of Defendants’ experts (often invited by Wi-LAN’s own lawyers)
to suggest that they testified improperly. Had the testimony actually been improper, Wi-LAN’s
counsel certainly would have objected at trial. But not a single piece of testimony in Wi-LAN’s
motion was the subject of an objection or request for limiting instruction. Wi-LAN has not met
the high burden necessary to obtain a new trial and should therefore be denied.
LEGAL STANDARD
A motion for new trial under Rule 59 is addressed to the trial court’s discretionary
authority, and a court’s denial of such a motion will be reversed “only for an abuse of
discretion.” Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place, 62 F.3d 767, 774 (5th Cir. 1995).
A new trial may be granted on evidentiary grounds, but only if, at a minimum, the verdict is
shown to be against the great weight of the evidence. Dawson v. Wal-Mart Stores, Inc., 978 F.2d
205, 208 (5th Cir. 1992). 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). A new trial may also be granted on grounds of prejudicial legal error, such as the
erroneous admission or exclusion of evidence. z4 Techs. Inc. v. Microsoft Corp., No. 6:06-cv142, 2006 U.S. Dist. LEXIS 58374, at *38 (Aug. 18, 2006 E.D. Tex). Parties moving for new
trial must demonstrate that any alleged prejudicial error was in fact harmful. Sibley v. Lemaire,
184 F.3d 481, 487 (5th Cir. 1999). Wi-LAN cannot meet its heavy burden for a new trial.
Wi-LAN cannot meet this heavy burden.
–1–

POINTS AND AUTHORITIES
A. Defendants did not “demonize” Wi-LAN.
Wi-LAN begins its Motion with strong language, claiming that Defendants “demoniz[ed]”
Wi-LAN’s licensing model to confuse the jury and generate “an immense prejudice against
Wi-LAN.” 1 Wi-LAN does not cite any testimony for the alleged “demonization,” but
presumably it is referring to Defendants’ cross-examination of Wi-LAN’s corporate
representative with Exhibit DX-435, which set forth Wi-LAN’s “Core Licensing Methodology”
of filing multiple lawsuits in serial fashion against potential licensees. Before the jury’s verdict,
Wi-LAN proudly included this document on its website, but after the verdict, it was removed
from the site for reasons known only to Wi-LAN. In any event, Wi-LAN did not object to the
exhibit, and thus, any complaint that it was unfairly prejudicial rings hollow.
B. Defendants did not “distort[] the Court’s claim construction.”
Wi-LAN accuses Defendants of “distort[ing] the Court’s claim constructions.” 2 Nothing
could be further from the truth. Indeed, the record clearly shows that each of Defendants’
technical experts painstakingly and dutifully applied the Court’s constructions in rendering their
opinions. What Wi-LAN complains about is the experts’ testimony — often elicited by
Wi-LAN’s own lawyers on cross-examination — providing the details of the experts’ opinions.
Notably, Wi-LAN did not object at any time during the trial that Defendants or their experts
were using an incorrect construction for any of the terms about which it now complains, nor did
it request any limiting instructions. Put plainly, Wi-LAN’s expert, Dr. Wells, simply lost the
credibility battle.

1
2

Motion at 1.
Id.
–2–

1. Wi-LAN is not entitled to a new trial regarding the overlay-code patents.
a. Defendants’ experts applied the Court’s construction for “overlay code” in the
overlay-code patents.
i. Whether the accused products could infringe without a “separate” overlay
code was a fact issue, not a claim-construction issue.
The Court construed “overlay code” as “an additional code that subdivides an orthogonal
channel.” Memorandum Opinion and Order (May 16, 2012), ECF No. 200, at 14. Contrary to
Wi-LAN’s contention that “Defendants’ experts grafted a variety of limitations on the asserted
claims,” 3 Defendants’ experts all applied this construction in forming their opinions. 4 In essence,
Wi-LAN’s argument improperly characterizes a factual dispute at the trial as a claimconstruction issue. The factual dispute was whether a single OVSF code defined by the HSDPA
standard was both the claimed “orthogonal code” and the “overlay code,” which the Court
construed to be an additional code other than the orthogonal code. There was substantial
evidence that, as a factual matter, a single OVSF code did not meet both required claim
elements. 5 Thus, the Court should not disturb the jury’s verdict of non-infringement.
Moreover, Wi-LAN is complaining about testimony that its own lawyers elicited on crossexamination. Even though none of Defendants’ experts had stated any opinions on direct about
whether an overlay code had to be “separate” from the orthogonal code, Wi-LAN’s counsel

3

Motion at 3.
See, e.g., Ex. C: Trial Tr. at 17:18–18:1 (July 11, 2013 (Morning Session) (Dr. Wicker));
id. at 23:24–24:7 (Dr. Wicker); id. at 29:8–19 (Dr. Wicker); id. at 100:12–101:3 (Dr. Wicker); id.
at 143:11–18 (Dr. Olivier); id. at 146:6–9 (Dr. Olivier); id. at 157:20–158:2 (Dr. Olivier); Ex. D:
Trial Tr. at 17:4–13 (July 11, 2013 (Afternoon Session) (Dr. Akl)); id. at 20:15–20 (Dr. Akl).
5
Ex. C: Trial Tr. at 22:24–26:12 (July 11, 2013 (Morning Session)); id. at 30:19–32:14;
id. at 81:24–82:6; id. at 100:8–102:7; id. at 117:8–13; id. at 118:11–20; id. at 161:17–23; Ex. D:
Trial Tr. at 12:19–15:7 (July 11, 2013 (Afternoon Session)).
4

–3–

opened that door by asking for Dr. Wicker’s and Dr. Olivier’s opinions on the subject. 6 When
they opined that an “additional code” indicates a code that is separate from the claimed
orthogonal code, Wi-LAN did not object or seek to exclude these opinions. 7 This presented the
factual question of whether a single OVSF code could satisfy both claim elements.
Wi-LAN’s arguments are also undermined by the testimony of one of the inventors, Martin
Lysejko, 8 who explained the relationship between the orthogonal code and the overlay code. As
a factual matter, Mr. Lysejko testified that the orthogonal code (or “RW code”) and overlay code
are “independent of each other.” 9 In short, the jury had and understood the facts necessary to
determine whether the Defendants’ products infringed the asserted claims and determined that
the products did not.
In fact, Wi-LAN’s counsel specifically recognized that it was for the jury to decide whether
to accept the experts’ opinions. In crossing Dr. Olivier, counsel asked: “[I]f the jury disagrees
with your reading of that term [“overlay code”], then the jury’s free to disregard your opinions,
correct?” 10 Now that the jury has disagreed with Wi-LAN’s assertion of fact that a single OVSF
code can be both an orthogonal code and an additional overlay code, Wi-LAN asks the Court to
order a new trial by claiming that Defendants applied the improper construction.
Wi-LAN’s argument is not only incorrect, it is also untimely. If Wi-LAN believed the

6

Ex. C: Trial Tr. at 117:13–15 (July 11, 2013 (Morning Session) (“Q. So you agree with
me, your opinions are based on your view of the Court’s construction that an additional code
must be a separate code.”) (Dr. Wicker); id. at 161:17–20 (“Q. Now, so you agree with Dr.
Wicker that in the definition of overlay code, when it says additional, that the Court’s claim
construction means separate, correct?) (Dr. Olivier).
7
See id. at 117:16–23 (Dr. Wicker); id. at 161:21–23.
8
Unlike co-inventor Paul Struhsaker, Mr. Lysejko was not a fact witness being paid by
Wi-LAN.
9

Ex. E: Trial Tr. at 11:5–13 (July 12, 2013 (Morning Session)).

10

Ex. C: Trial Tr. at 161:25–162:2 (July 11, 2013 (Morning Session)).
–4–

testimony it elicited was improper, it should have objected or requested a limiting instruction. It
did not. 11 Having failed to do so, its current complaints do not justify a new trial. See, e.g.,
Morreale v. Downing, 630 F.2d 286, 290 (5th Cir. 1980).
ii. The Court did not reject Defendants’ position that the additional overlay
codes must be separate from the orthogonal code.
Wi-LAN also asserts that the Court “expressly reject[ed] Defendants’ position” that the
additional overlay code is separate from the orthogonal code. 12 Wi-LAN is incorrect. Indeed, the
opposite is true. As shown by the arguments at the Markman hearing, the claim-construction
issue was not whether an additional code must be a separate code. Rather, the arguments
centered on whether the two codes could be applied simultaneously or in series. In fact, the Court
recognized that having an “additional code” implied a separate code, as it asked: “If it is an
additional code, then wouldn’t that imply that it was separate?” 13
The Court’s claim-construction ruling is consistent with this understanding. It explained
that, although the codes could be applied simultaneously, the overlay code is not the same code
as the orthogonal code, but rather is “an additional code that subdivides an orthogonal channel.”
Memorandum Opinion and Order (May 16, 2012), ECF No. 200, at 14. The Court further noted
that Wi-LAN agreed that “an overlay code is an additional code other than the orthogonal
code.” Id. (emphasis added).
Wi-LAN’s trial position that a single OVSF code can satisfy both limitations is therefore
11

Wi-LAN deceptively states that it “raised its objection to Defendants’ non-infringement
theory during Defendants’ cross-examination of Dr. Wells.” Motion, at 4 (citing Trial Tr. at
100:24–101:17 (July 9, 2013 (Morning Session)); id. 115:24–116:18). These objections,
however, were directed to whether the claimed orthogonal code and overlay code could be
applied simultaneously. None of Defendants’ experts asserted that the claims precluded
simultaneous application of the two codes, and Wi-LAN does not now contend that they did.
Wi-LAN’s suggestion that it objected to the testimony about which it now complains is baseless.
12
Motion, at 5.
13
Ex. A: Hearing Tr. at 59:24-25 (Apr. 26, 2012).
–5–

contrary to the Court’s construction, and it is no surprise that the jury rejected it.
iii. Wi-LAN ignores the second part of the Court’s claim construction.
Wi-LAN also ignores the remaining portion of the “overlay code” construction, namely
that the overlay code must “subdivide[] an orthogonal channel.” Defendants’ experts testified
that the OVSF codes in the UMTS Standard for HSDPA and the accused products do not
subdivide any orthogonal channels. 14 Specifically, they testified that in the OVSF code tree
defined by the standard, there is exactly one code per channel. 15 Thus, channels cannot be
subdivided because higher-level codes are “blocked” from use. The jury heard this testimony,
weighed the credibility of the witnesses, and determined that the accused products do not
infringe. Wi-LAN is not entitled to a new trial on infringement.
b. Defendants’ experts testified properly regarding the “storage” element in the
overlay-code patents.
If the Court finds that Wi-LAN’s complaints about the “overlay codes” do not warrant a
new trial, then the Court need not consider Wi-LAN’s additional arguments regarding the
“storage” and “selectively operable” elements, as these elements appear in only some of the
asserted overlay-code patent claims. Defendants, however, address Wi-LAN’s arguments in the
interest of completeness and because they are as baseless as its arguments about the overlay
codes.
Claim 5 of the ’326 Patent and claim 11 of the ’819 Patent both state: “wherein the
orthogonal code generator is a storage arranged to store the set of orthogonal codes.” 16 Dr.
Wicker explained that the accused products do not meet this limitation because the “set of codes”
14

Ex. C: Trial Tr. at 22:17–23:11 (July 11, 2013 (Morning Session); id. at 25:12–28:15; id.
at 145:25–148:18.
15

E.g., id. at 6:21–8:1; id. at 118:17–20; id. at 145:21–146:5; id. at 158:13–18; Ex. D: Trial
Tr. at 21:7–19 (July 11, 2013 (Afternoon Session)).
16
See, e.g., Ex. F: ’326 Patent (PX 1) at 29:23–24.
–6–

in the claims is “all of the codes” and the accused products never store the set, bur rather store, at
most, only a single code. 17 Wi-LAN misrepresents Dr. Wicker’s testimony on this issue and
accuses him of “add[ing] a negative limitation” into the claims that require the “orthogonal code
generator” to be a “storage.” 18 Wi-LAN’s assertion is baseless.
Indeed, Wi-LAN’s argument is deceptive because it cites to Dr. Wicker’s testimony about
the specification’s description of a technique for generating codes, namely “on-the-fly”
generation. 19 When testifying about what the claims cover, Dr. Wicker never asserted the claims
exclude on-the-fly code generation. On the contrary, Dr. Wicker testified that attempting to limit
the claims to embodiments shown in the patent is improper. 20 In short, Wi-LAN’s motion
attributes testimony to Dr. Wicker that simply does not exist. Dr. Wicker analyzed the claim
language and testified that the accused products did not meet that claim language.
Further, even if Dr. Wicker had testified about the scope of the “storage” limitation in a
way that Wi-LAN believed was incorrect, it could have objected. But once again, it did not. In
fact, Wi-LAN’s counsel cross-examined Dr. Wicker about his testimony regarding the “storage”
limitation, but notably, did not ask a single question about an alleged “negative limitation” in the
claims. Wi-LAN’s new-trial motion should be denied.
c. Defendants’ experts testified properly regarding the “selectively operable”
element in the overlay-code patents.
As with the “storage” limitation, if the Court concludes that a new trial is not warranted
based on Wi-LAN’s “overlay code” argument, the Court need not address Wi-LAN’s arguments
about the claims with the “selectively operable” language. Nevertheless, Wi-LAN’s arguments
17
18
19
20

See Ex. C: Trial Tr. at 47:17–48:14 (July 11, 2013 (Morning Session); id. at 51:3–23.
Motion at 6.
See id. (citing Trial Tr. at 42:11-43:5 (July 11, 2013 (Morning Session)).
Ex. C: Trial Tr. at 88:23–89:1 (July 11, 2013 (Morning Session).
–7–

about these claims also fail.
In arguing that Dr. Wicker and Dr. Olivier misstated the scope of the claims in the ’326
Patent that require a “second encoder, selectively operable instead of the TDM encoder,”
Wi-LAN misrepresents Dr. Wicker’s testimony. Specifically, Wi-LAN asserts that Dr. Wicker
“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.” 21 Dr. Wicker offered no such testimony.
Rather, Dr. Wicker explained that if a data item is to be sent to a user, the system has a
choice — it can send that data item using overlay codes or using TDM techniques, but it cannot
do it both ways. 22 And that is exactly what the “selectively operable” language in the claims of
the ’326 Patent requires. Claim 5, for example, requires “a second encoder, selectively operable
instead of the TDM encoder, to apply the overlay code . . . to said data item.”23 Because the
claim requires the overlay code to be applied to “said data item,” there must be an antecedent
basis for that data item in the claim. There is. Claim 5 requires “a TDM encoder to apply time
division multiplexing (TDM) techniques to the data item in order to insert the data item within a
time slot of the orthogonal channel.” Under fundamental rules of claim construction, “the data
item” and “said data item” are necessarily the same data item — i.e., a particular data item sent
over a particular orthogonal channel.
The “selectively operable” language provides the system with a choice, as shown by the
switch 109 in Figure 7B of the patents-in-suit. If it receives a data item to be sent to a user, the
system can encode that data item using TDM techniques, or alternatively, it can encode it using
21
22
23

Motion at 8 (emphasis added).
See Ex. C: Trial Tr. at 34:3–19 (July 11, 2013 (Morning Session)).
Ex. F: ’326 Patent (PX 1) at 29:18–20.
–8–

an overlay code. This is exactly what Dr. Wicker said. The “selectively operable” limitation in
the asserted claims of the ’326 Patent is not, as Wi-LAN argues, addressed to the different
situation where one data item (e.g., user data) is sent on one orthogonal channel using TDM
techniques and a different data item (e.g., control data) is sent over a separate orthogonal channel
using overlay codes. Rather, that different scenario, which is depicted in Figure 15A of the
patents-in-suit, is addressed by different claims, such as claim 11 of the ’819 Patent, that provide
for the use of overlay codes on certain channels and the use of TDM techniques on others.
In claim 11 of the ’819 Patent, which Wi-LAN asserted at trial, the “second encoder” is not
“selectively operable instead of the TDM encoder.” Rather, the second encoder applies overlay
codes to a data item on an orthogonal channel, while the TDM encoder applies TDM techniques
to different data items “to be sent over a traffic channel.” 24 Wi-LAN’s contention that all
asserted claims must be depicted in Figure 15A is simply incorrect. Dr. Wicker properly testified
that Figure 15A does not show the “selectively operable” second encoder required by the
asserted claims of the ’326 Patent.
Regardless, Wi-LAN did not object or request a limiting instruction, and its belated
objections do not justify a new trial.
C. Wi-LAN is not entitled to a new trial on the intercell-interference patent.
As it did with the overlay-code patents, for the ’327 Patent, Wi-LAN complains about
testimony from Defendants’ experts to which it neither objected nor requested a limiting
instruction. And just as before, Wi-LAN’s arguments misstate the testimony and carefully avoid
discussing the actual claim language. Wi-LAN’s arguments fail and do not support the granting
of a new trial.

24

Ex. H: ’819 Patent (PX 3) at 29:6–8.
–9–

1. Defendants’ experts testified properly regarding the “indicative of . . . interference”
element of the intercell-interference patent.
In its first argument regarding the ’327 Patent, Wi-LAN states that “Dr. Wicker testified
that the parameter [indicative of interference from other cells] must ‘only measure the
interference from other cells.’” 25 That assertion misstates Dr. Wicker’s testimony. What
Wi-LAN quotes is its counsel’s question to Dr. Wicker, who responded that the parameter must
“indicate[] the interference from other cells.” 26 The entire line of questioning by Wi-LAN’s
counsel shows that Dr. Wicker was not placing a limitation that the received parameter only
measure inter-cell interference, but rather that he correctly stated that the parameter must indicate
the presence of inter-cell interference:
Q. Now, you argue that the Alcatel-Lucent products don’t infringe the
’327 patent because the CQI doesn’t measure essentially only intercell
interference. Isn’t that what you’re arguing?
A. Yes.
Q. And it doesn’t just need to be indicative of. So we can strike that
language. It needs to be only measuring whether the wireless link is
subject to interference solely from signals generated by other cells.
That’s really your opinion, isn’t it, sir?
A. It is my opinion that the analyzer has to receive parameters indicative
of, and I’m simply interpreting that word indicative.
Q. So you interpreted the word “indicative of” to mean only measuring the
interference from other cells?
A. That’s right. It indicates the interference from other cells.
Q. And you went through testimony where you said there’s interference
that’s caused by other things, correct?
A. That’s correct. 27
25
26
27

Motion at 10.
Ex. C: Trial Tr. at 84:22–25 (July 11, 2013 (Morning Session))
Id. at 84:8–85:4.
– 10 –

Dr. Wicker’s testimony on cross-examination does not contradict his direct testimony that
the “Channel Quality Indicator,” or CQI, in the accused products is not a parameter indicative of
interference from other cells. In fact, Wi-LAN does not challenge Dr. Wicker’s testimony that
the CQI can be affected by numerous things, including obstructions, intra-cell interference,
intercell interference, quality of the phone, distance, power control, and weather. 28 Dr. Wicker’s
testimony is also undisputed that the base station cannot tell why a mobile phone reports a
change in its CQI. 29
In any event, Wi-LAN did not object or request a limiting instruction relating to Dr.
Wicker’s testimony.
Separately, Wi-LAN does not challenge Dr. Olivier’s testimony about this topic. Instead,
Wi-LAN falsely states: “Dr. Olivier provided no additional explanation other than to simply
agree with Dr. Wicker’s opinions and provide conclusory statements.” 30 This is incorrect. Dr.
Olivier provided a detailed explanation of what the CQI does, based on the 3G Evolution
textbook authored by four Ericsson engineers and based on detailed technical documents for the
accused Ericsson base stations. 31 Contrary to Wi-LAN’s misrepresentations, Dr. Olivier’s
testimony was actually in some ways more detailed than Dr. Wicker’s and confirmed that the
CQI is not a parameter “indicative of whether [a] wireless link is subject to interference from
signals generated” by other cells, as required by the asserted claims of the ’327 Patent.
Substantial evidence supports the jury’s verdict, and Wi-LAN is not entitled to a new trial.

28
29
30
31

Id. at 66:1–68:9.
Id. at 68:10–69:1.
Motion at 10 n.5.
See Ex. C: Trial Tr. at 152:2–156:5 (July 11, 2013 (Morning Session)).
– 11 –

2. Defendants’ experts testified properly regarding the “channel pool” element of the
intercell-interference patent.
Wi-LAN also contends that Dr. Wicker imported a “locking” limitation from unasserted
claim 5 of the ’327 Patent into claim 11. This is not true. Claim 11 requires: “a channel controller
being responsive to the output signal from the analyser, to selectively reduce the number of code
division multiplexed channels in the channel pool.” 32 The specification for the ’327 Patent
describes two ways to reduce the number of channels in the channel pool. First, a number of
channels can be designated as “locked channels.” 33 Second, the central terminal may actually
disable one or more of the modems in the central terminal that are used to create wireless links. 34
Under either approach, because channels are removed from the channel pool, they are not
available for the establishment of wireless links.
Wi-LAN makes much of the fact that some of Dr. Wicker’s testimony referred to the
“locking” of channels. 35 What Wi-LAN fails to acknowledge, however, is that in one of the
pieces of testimony it cites, 36 Dr. Wicker was describing one of the embodiments described in
the specification — not the claim limitations. And in the second piece of testimony, while Dr.
Wicker used the words “locked out” initially, he immediately corrected himself and clarified that
the claim covers any technique by which a channel is removed from the channel pool, thereby
making those channels unavailable for use:
Q. So let’s move to the last element of Claim 11. And could you remind us
again what the last element requires.
A. Okay. That’s the channel controller. This is the portion of the claim
32
33
34
35
36

Ex. G: ’327 Patent (PX 2) at 31:50–52 (emphasis added).
See, e.g., id. at 3:23–30.
See, e.g., id. at 25:61–67.
See Motion at 10.
Ex. C: Trial Tr. at 55:12–13 (July 11, 2013 (Morning Session).
– 12 –

that takes that estimate of how channels are being affected by other cell
interference and takes some of those cells out of the people [sic: pool],
takes them out of commission, and says: These channels cannot be
used by anybody in the cell, because of this interference from other
cells.
Q. And do HSDPA-compatible base stations satisfy that element of Claim
11?
A. No.
Q. And why do you say that?
A. We talked a lot about HSDPA and the 15 data channels. They’re going
to be allocated to someone within the cell if there’s data to send. There
is no situation in which one of those channels is locked out, taken out
of use because of interference from other cells. It simply doesn’t
happen. 37
Contrary to Wi-LAN’s assertions, Dr. Wicker clearly testified that Claim 11’s requirement
of reducing the number of channels in the channel pool is not limited to “designating a channel
as a locked channel” but rather could be satisfied any time a channel is taken out of use in
response to the receipt of parameters indicative of inter-cell interference.
Moreover, Wi-LAN does not challenge Dr. Olivier’s testimony on this issue. Dr. Olivier
testified that the accused base stations do not meet the limitation of “selectively reducing the
number of code division channels in the pool in order to reduce the effect of interference from
other cells.” 38 As Dr. Olivier explained, the channel pool is for the entire central terminal and not
for a particular user. 39 On cross-examination, Wi-LAN’s counsel did not question Dr. Olivier
about this opinion. It cannot now assert that the jury was confused.
The jury rendered its just verdict after carefully considering the evidence and weighing the
credibility of the witnesses. Wi-LAN’s motion for a new trial should be denied.
37
38

Id. at 69:22–70:16 (emphasis added).
Id. at 149:11–19, 151:6–152:1, 156:1–16.

39

Id. at 156:14–16.
– 13 –

D. Wi-LAN is not entitled to a new trial on validity and damages.
Wi-LAN claims that because the jury answered Question 4 of the Verdict Form “finding
zero damages,” the jury must have been confused. 40 This is simply wrong. As an initial matter,
the jury did not answer Question 4 by saying Wi-LAN was entitled to “zero damages.” Rather,
the jury placed the symbol “ø” in the space for the damages:

As the Court is aware, in mathematics, the null sign or “ø”, is used to designate the empty
set. Far from being confused, the jury understood completely. Indeed, during the trial, one of
Defendants’ damages experts, Christopher Bakewell, explained what would happen if the jury
found that the patents were not infringed or were invalid:
Q. Now, if the jury finds that there is no infringement or that the patents
are invalid, are there any damages in this case?
A. Then there’s no damages. The damages amount would be the
equivalent of zero or really would be a null value, because the
damages wouldn’t be an issue. 41
The jury saw Wi-LAN’s case for what it was — an improper attempt to coerce the
Defendants to take licenses by forcing them to engage in costly litigation over invalid patents
that were not infringed. Based on that understanding, the jury made clear that Wi-LAN’s request
40
41

Motion at 10.
Ex. D: Trial Tr. at 58:10-15 (July 11, 2013 (Afternoon Session)) (emphasis added).
– 14 –

for damages was a nullity. 42
E. The jury was not confused.
Finally, Wi-LAN repeatedly contends that Defendants’ trial strategy confused the jury. The
record, however, shows that the jury was not confused in any way. Indeed, the jury was afforded
the opportunity after each witness to submit written questions to clarify any points of confusion.
Rather than showing confusion, the jury’s questions demonstrated that it had a substantial grasp
on the technical aspects of the case. In fact, following the submission of questions for Dr.
Wicker, the Court commented: “I continue to be amazed at our East Texas juries’ comprehension
of the technology. 43 Accordingly, the Court should reject Wi-LAN’s jury-confusion argument as
baseless.
CONCLUSION
For the reasons set forth above, the jury’s verdict was supported by evidence. Accordingly
Defendants respectfully request that the Court Wi-LAN’s Motion in its entirety.

42

Incredibly, Wi-LAN’s motion states that its damages expert, John Jarosz, offered an
opinion of a reasonable-royalty amount at trial. Motion at 10. He did not. The Court twice struck
Mr. Jarosz’s opinions such that, at trial, he could not provide an ultimate opinion with respect to
damages but rather only had “inputs that the jury can consider.” Ex. B: Trial Tr. at 148:19–25
(July 10, 2013 (Morning Session)). The jury considered those “inputs” and found the damages to
be the empty set.
43
Ex. C: Trial Tr. at 124:9–11 (July 11, 2013 (Morning Session)).
– 15 –

Dated: August 30, 2013

Respectfully submitted,
By: /s/ Martin R. Bader______________
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.

– 16 –

Dated: August 30, 2013

Respectfully submitted,
By: /s/Robert A. Appleby______________
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.

– 17 –

Dated: August 30, 2013

Respectfully submitted,

/s/ Bruce S. Sostek___

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.

– 18 –

CERTIFICATE OF SERVICE
This is to certify that on the 30th day of August, 2013, a copy of the foregoing document
was served on counsel of record by electronic mail.

Richard L. Wynne, Jr.
Richard L. Wynne, Jr.

– 19 –