Case 3:14-cv-02235-DMS-BLM Document 548 Filed 01/03/19 PageID.26788 Page 1 of 10
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`APPLE INC.,
`
`vs.
`
`WI-LAN, INC.,
`
`Plaintiff,
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`CASE NO. 14cv2235 DMS (BLM)
`ORDER (1) DENYING APPLE
`INC.’S RENEWED MOTION FOR
`JUDGMENT AS A MATTER OF
`LAW, (2) GRANTING APPLE
`INC.’S MOTION FOR A NEW
`TRIAL AND/OR REMITTITUR
`AND (3) DENYING WI-LAN’S
`MOTION FOR SUPPLEMENTAL
`DAMAGES, ONGOING ROYALTY,
`AND PREJUDGMENT AND POST
`JUDGMENT INTEREST
`
`Defendant.
`_______________________________
`AND ALL RELATED
`COUNTERCLAIMS.
`
`This case comes before the Court on Apple Inc.’s renewed motion for judgment
`as a matter of law and/or motion for a new trial and Wi-LAN’s motion for supplemental
`damages, ongoing royalty, and prejudgment and post judgment interest. On November
`30, 2018, the Court heard argument on the damages portion of Apple’s motion. Ashley
`Moore appeared and argued for Wi-LAN, and Sean Cunningham appeared and argued
`for Apple. After reviewing the parties’ briefs, the record, the relevant legal authority,
`and after hearing argument from counsel, the Court issues the following rulings:
`/ / /
`
`I.
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`Case 3:14-cv-02235-DMS-BLM Document 548 Filed 01/03/19 PageID.26789 Page 2 of 10
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`RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW
`Apple moves for judgment as a matter of law on the issue of infringement. “A
`Rule 50(b) motion for judgment as a matter of law is not a freestanding motion. Rather,
`it is a renewed Rule 50(a) motion.” E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951,
`961 (9th Cir. 2009). Federal Rule of Civil Procedure 50(a)(1) provides:
`If a party has been fully heard on an issue during a jury trial and the court
`finds that a reasonable jury would not have a legally sufficient evidentiary
`basis to find for the party on that issue, the court may:
`(A) resolve the issue against the party; and
`(B) grant a motion for judgment as a matter of law against the party on a
`claim or defense that, under the controlling law, can be maintained or
`defeated only with a favorable finding on that issue.
`Fed. R. Civ. P. 50(a)(1). In the Ninth Circuit, “‘[j]udgment as a matter of law is
`appropriate when the evidence presented at trial permits only one reasonable
`conclusion.’” Torres v. City of Los Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008)
`(quoting Santos v. Gates, 287 F.3d 846, 851 (9th Cir. 2002)). “In other words, ‘[a]
`motion for a judgment as a matter of law is properly granted only if no reasonable juror
`could find in the non-moving party’s favor.’” Id. (quoting El-Hakem v. BJY Inc., 415
`F.3d 1068, 1072 (9th Cir. 2005)). When considering a motion for judgment as a matter
`of law, the court must view the evidence “‘in the light most favorable to the nonmoving
`party, and all reasonable inferences must be drawn in favor of that party.’” Id. at 1205-
`06 (quoting LaLonde v. County of Riverside, 204 F.3d 947, 959 (9th Cir. 2000)).
`Here, Apple raises a number of arguments in support of its motion for judgment
`as a matter of law on the issue of infringement. Several of these legal arguments were
`raised and rejected prior to trial, e.g., the claim construction arguments. Apple has
`failed to show that the Court’s previous rulings were in error, and thus those arguments
`do not warrant judgment as a matter of law in Apple’s favor. On the evidentiary
`arguments, Apple has failed to show that no reasonable juror could have found for Wi-
`LAN, and thus those arguments also do not warrant judgment as a matter of law in
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`Case 3:14-cv-02235-DMS-BLM Document 548 Filed 01/03/19 PageID.26790 Page 3 of 10
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`Apple’s favor. Thus, the Court denies Apple’s motion for judgment as a matter of law
`on the issue of infringement.1
`
`II.
`MOTION FOR NEW TRIAL OR REMITTITUR
`Apple’s motion for a new trial on damages is based on Federal Rule of Civil
`Procedure 59, which provides: “The court may, on motion, grant a new trial on all or
`some of the issues-and to any party-as follows: (A) after a jury trial, 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)(1)(A). “A trial court should grant a motion for a new trial if (1)
`the jury instructions were erroneous or inadequate, (2) the court made incorrect and
`prejudicial admissibility rulings, or (3) the verdict is contrary to the great weight of the
`evidence.” Chiron Corp. v. Genentech, Inc., 363 F.3d 1247, 1258 (Fed. Cir. 2004)
`(citations omitted).
`As an alternative to a new trial on damages, Apple requests that the Court enter
`a conditional order of remittitur to a $10 million damages award. “‘The Court has
`discretion to grant a remittitur, reducing the damages to the maximum authorized under
`the evidence, and then offer Plaintiffs the choice of accepting a remittitur (a reduction)
`of the award in lieu of a new trial on the issue of the damages only.’” Coach, Inc. v.
`Celco Customs Services Co., No. CV 11-10787 MMM (FMOx), 2014 WL 12573411,
`at *23 n.128 (C.D. Cal. June 5, 2014) (quoting Dixon v. City of Coeur d’Alene, No.
`2:10-cv-00078-LMB, 2012 WL 2923149, at *8 (D. Idaho July 18, 2012)).
`/ / /
`
`1 Apple also moves for judgment as a matter of law of no damages on the ground
`Wi-LAN “failed to meet its burden of proving damages.” (Mem. of P. & A. in Supp.
`of Apple’s Mot. at 11.) At oral argument, Apple presented the Court with another
`option, namely entering judgment as a matter of law in the amount of $24 million in
`damages. That was the first mention of this option, and thus the Court declines to
`consider it here. Even if the Court considered it, however, Apple has failed to show
`there is sufficient evidence in the record for the Court to enter judgment as a matter of
`law in that amount. Furthermore, Apple’s arguments on damages are directed more
`toward Wi-LAN’s methodology, not a lack of evidence to support a damages award.
`Therefore, the Court addresses the issue of damages below under Apple’s alternative
`motion for a new trial or remittitur.
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`Case 3:14-cv-02235-DMS-BLM Document 548 Filed 01/03/19 PageID.26791 Page 4 of 10
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`In this case, the primary point of contention on the damages issue is
`apportionment.2 Both sides agree that apportionment was required, but they disagree
`on the method for doing so. Apple apportioned by using the smallest salable patent
`practicing unit (“SSPPU”), which Apple argued was the baseband processor, while Wi-
`LAN used a “direct valuation” approach. Apple contends Wi-LAN’s approach was
`riddled with legal and factual errors, and thus Apple is entitled to a new trial on
`damages or a remittitur to $10 million.
`The general rule of apportionment is that “[a] patentee is only entitled to a
`reasonable royalty attributable to the infringing features.” Power Integrations, Inc. v.
`Fairchild Semiconductor Int’l, Inc., 904 F.3d 965, 977 (Fed. Cir. 2018). As stated
`above, there is no dispute that apportionment was required in this case. Thus, Wi-LAN
`was required, as part of its reasonable royalty analysis, to “apportion[ ] between the
`infringing and non-infringing features of the product.” Id. (citations omitted).
`Here, the accused product was the iPhone, and thus Wi-LAN had the burden to
`apportion the infringing features of the iPhone from the noninfringing features.
`Generally, this kind of apportionment is accomplished by ensuring the royalty base is
`not “larger than the smallest salable unit embodying the patented invention.” Id.3 If the
`SSPPU “itself contains several non-infringing features[,]” the patentee must apportion
`further by “estimat[ing] what portion of that smallest salable unit is attributed
`/ / /
`/ / /
`/ / /
`/ / /
`
`2 To be sure, Apple raises other arguments, namely, that evidence of
`œœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœskewed the damages horizon, and that
`Wi-LAN improperly included millions of non-infringing iPhones in the royalty base.
`However, in light of the discussion below, the Court declines to address these other
`arguments.
`3 The Court notes the parties dispute what constitutes the SSPPU in this case.
`Apple argues it is the baseband processor while Wi-LAN asserts it is the iPhone. The
`Court need not resolve this issue here, however.
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`Case 3:14-cv-02235-DMS-BLM Document 548 Filed 01/03/19 PageID.26792 Page 5 of 10
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`to the patented technology.” Id. (citing VirnetX, Inc. v. Cisco Systems, Inc., 767 F.3d
`1308, 1327 (Fed. Cir. 2014).4
`Wi-LAN argues, however, that apportionment may be accomplished by other
`means, and that courts should allow “flexibility in arriving at apportionment.” (Wi-
`LAN’s Opp’n to Mot. at 15) (citations omitted). There is authority to support both of
`these arguments, see Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1315 (Fed. Cir. 2014),
`overruled on other grounds by Williamson v. Citrix Online, LLC, 792 F.3d 1339 (Fed.
`Cir. 2015), (stating party may “estimate the value of the benefit provided by the
`infringed features by comparing the accused product to non-infringing alternatives.”);
`Commonwealth Scientific and Indus. Research Org. v. Cisco Systems, Inc. (“CSIRO”),
`809 F.3d 1295 (Fed. Cir. 2015) (stating “adaptability” may be necessary in the
`apportionment analysis), but neither of these cases resolves the issues raised here.
`CSIRO, for instance, was a unique case wherein the parties engaged in actual license
`negotiations to the patent in suit. 809 F.3d at 1303. In determining a reasonable
`royalty, the district court used those negotiations “as a lower bound on a reasonable
`royalty,” and the Federal Circuit affirmed that approach. Id. at 1304. This case does
`not present facts similar to those found in CSIRO, or facts that would necessarily call
`for flexibility or “adaptability” in apportionment. Nevertheless, the Court cannot say,
`as a matter of law, that Wi-LAN’s failure to use the SSPPU in its reasonable royalty
`analysis requires either a new trial or remittitur on damages. Rather, whether Apple is
`entitled to that relief depends on whether the damages theory Wi-LAN did present to
`the jury was the product of a reliable methodology, and if so, whether that methodology
`was reliably applied to the facts of this case.
`/ / /
`
`4 In exceptional cases, the entire market value of the product may be used, but
`“‘only where the patented feature creates the basis for customer demand or substantially
`creates the value of the component parts.’” Versata Software, Inc. v. SAP America, Inc.,
`717 F.3d 1255, 1268 (Fed. Cir. 2013) (quoting SynQor, Inc. v. Artesyn Tech., Inc., 709
`F.3d 1365, 1383 (Fed. Cir. 2013)). There is no dispute that requirement is not met in
`this case, and that the entire market value rule, therefore, does not apply.
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`Case 3:14-cv-02235-DMS-BLM Document 548 Filed 01/03/19 PageID.26793 Page 6 of 10
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`Wi-LAN described its methodology in this case as apportionment through “direct
`valuation.” Notably, Wi-LAN fails to cite any other case in which this methodology
`has been used to apportion the value of a patented invention as part of a reasonable
`royalty analysis. Nevertheless, Wi-LAN engaged three experts who each analyzed
`different factors as part of this methodology.
`First, Wi-LAN had Dr. Madisetti study “the incremental benefits of the patented
`technologies and quantif[y] those technical benefits for each patent group, by
`comparing the Accused Products with the next-best noninfringing alternatives[.]”
`(Mem. of P. & A. in Opp’n to Apple’s Mot. to Exclude Certain Opinions of Vijay
`Madisetti, David Kennedy, and Jeffrey Prince, ECF No. 352 at 9.) After doing so, Dr.
`Madisetti opined that voice over LTE (“VOLTE”) capability increased a phone’s Mean
`Opinion Score (“MOS”) by 2.3 points.5 In reaching that opinion, Dr. Madisetti relied
`on a report by Signals Ahead, which tested Samsung phones, that compared VOLTE
`technology with non-VOLTE technology Skype. Dr. Madisetti also conducted his own
`tests of VOLTE and non-VOLTE technology using iPhones. Dr. Madisetti also opined
`that claim 9 of the ‘145 Patent provided benefits in the form of 16% faster uploads, and
`that claim 1 of the ‘757 Patent provided benefits in the form of 6% faster downloads.
`Professor Prince then took Dr. Madisetti’s “benefits” opinions and assigned each
`of those purported benefits a monetary value through the use of his “willingness to pay”
`survey. Through that survey, Professor Prince determined the value of VOLTE
`technology was in the range of $69-$121, the value of increased upload speed was
`between $1.90 and $3.65, and the value of increased download speed was between
`$2.44 and $4.02.
`Mr. Kennedy then took Dr. Madisetti’s “benefits” opinions and Professor’s
`Prince’s valuations of those benefits to arrive at a reasonable royalty figure of $145
`
`5 During opening statement, Wi-LAN’s counsel described VOLTE as the process
`of “sending voice calls over the current 4G or LTE networks which transmits the call,
`not through the telephone company but over the internet.” (Trial Tr. at 14, July 23,
`2018, ECF No. 452.)
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`Case 3:14-cv-02235-DMS-BLM Document 548 Filed 01/03/19 PageID.26794 Page 7 of 10
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`million. That figure was based on a royalty rate of 85 cents per unit (iPhone),
`multiplied by the number of iPhones sold during the period of infringement (170.7
`million). Mr. Kennedy explained his royalty rate by reference to Professor Prince’s
`valuation numbers. He specifically relied on the low end valuation for the upload and
`download speeds ($1.90 and $2.44, respectively), but apportioned only 1% of the upper
`end valuation of VOLTE ($121) to Wi-LAN for a total valuation of that technology of
`$1.22. Mr. Kennedy used these valuations to argue the reasonableness of his 85 cents
`per unit royalty rate. Mr. Kennedy also used theœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœ
`œœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœto show the reasonableness of his 85 cent
`royalty rate. He also relied on Wi-LAN’s license agreement with Samsung, which
`provided for a lump sum payment of œœœœœœœœœœœœœœœœto Wi-LAN, as further support for
`the reasonableness of his ultimate damages figure. When asked why he did not use the
`SSPPU as his royalty base, particularly the baseband processor, Mr. Kennedy stated that
`was not required because Dr. Madisetti and Professor Prince valued the patented
`technology. In essence, he testified that he apportioned the patented features of the
`iPhone through Dr. Madisetti’s and Professor Prince’s “direct valuation” of those
`features.
`The problem with this approach, however, specifically as it relates to claim 26
`of the ‘145 Patent, was that Dr. Madisetti’s starting point was VOLTE, not the patented
`technology. This, despite the testimony of Mr. Stanwood, one of the inventors of the
`‘145 Patent, who stated he did not invent VOLTE. (Trial Tr. at 187:14-16, July 24,
`2018, ECF No. 514.)
`Apple argues Wi-LAN’s use of VOLTE as a starting point overstated the
`footprint of the invention, and that the expert testimony incorporating that argument
`was therefore inadmissible. See ResQNet.com, Inc. v. Lansa, Inc., 594 F.3d 860, 869
`(Fed. Cir. 2010) (stating “trial court must carefully tie proof of damages to the claimed
`invention’s footprint in the market place.”) Wi-LAN disputes that it drew a connection
`between the patented technology and VOLTE and therefore overstated the footprint of
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`the invention. (Wi-LAN’s Opp’n to Apple’s Mot. at 18.) However, its arguments and
`the evidence presented at trial refute that contention.
`First, Wi-LAN used VOLTE to prove infringement of claim 26 of the ‘145
`Patent. (Trial Tr. at 614, July 26, 2018, ECF No. 506 (“Q: ... A VOLTE to VOLTE
`call, that is the technology that’s enabled by the ‘145 Patent? A: Yes.”).) Although that
`may have been appropriate, taking that theory and simply importing it into the damages
`case was not.
`Second, Wi-LAN does not dispute that to determine the benefits of the invention
`claimed in the ‘145 Patent, Dr. Madisetti relied primarily on a Signals Ahead test of
`voice call quality using VOLTE compared to voice call quality using Skype. It is
`undisputed this test did not mention the ‘145 Patent or equate its benefits with the voice
`call quality of VOLTE, but Dr. Madisetti drew that connection anyway. Relying on that
`unproven connection, Dr. Madisetti then extrapolated from the Signals Ahead test that
`the benefit of the invention claimed in the ‘145 Patent was a 2.3 unit increase to the
`MOS score. (See Trial Tr. at 266-67, July 24, 2018, ECF No. 514 (“Q: So using the
`patented invention, the mean opinion score, the MOS, is almost twice as good as with
`Skype, the alternative? A: It’s actually 2.3 MOS units, so the quality is quite
`significant. It could be even more than twice.”); id. at 267 (Professor Madisetti stating
`he did his own study of “the benefits of VOLTE over Skype” using iPhones).
`Third, Wi-LAN’s counsel also drew this connection in questions to their
`witnesses. (See id. at 271-72 (“Q: Apple’s use of these three inventions in the patent
`claims in the accused iPhones, do they improve the iPhone as a whole for voice and
`cellular data? A: Yes. Q: Better voice and higher speeds? A: Yes.”); Trial Tr. at 381,
`July 25, 2018, ECF No. 493 (“Q: At a high level, what are [the technical benefits of
`using the inventions in the accused product]? A: You get great quality from the
`VOLTE, that is 2.3 MOS better.”); Trial Tr. at 614, July 26, 2018, ECF No. 506 (“Q:
`... A VOLTE to VOLTE call, that is the technology that’s enabled by the ‘145 Patent?
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`A: Yes.”). See also Rep. Tr. at 6, Nov. 30, 2018, ECF No. 547 (Wi-LAN’s counsel
`stating “the 2.3 MOS score is still specific to the patented technology.”)
`These opinions and evidence were without factual basis. Indeed, they
`contradicted the testimony of Mr. Stanwood that he did not invent VOLTE, and the
`testimony of Mr. Kennedy that the ‘145 patented technology was “related to” VOLTE,
`not equivalent to it. (Trial Tr. at 686:10-12, July 26, 2018, ECF No. 506.) (See also id.
`at 686:13-24 (acknowledging “there are other pieces of value, lots of little pieces of
`value that go into VOLTE”); Trial Tr. at 14, July 23, 2018, ECF No. 452 (“VOLTE has
`a lot of components to it. It uses LTE networks, it uses the internet. It has a lot of
`different components that a lot of different people and companies invented. When you
`see how complex it is you will see that all had to come together.”) Wi-LAN’s assertion
`that Dr. Madisetti’s “benefits” opinion was limited to the patented technology is also
`contradicted by Mr. Kennedy’s subsequent apportionment of only 1% of VOLTE call
`quality to Wi-LAN. Mr. Kennedy stated he allocated 1% of this value to Wi-LAN and
`99% of the value to Apple using a profit sharing analysis, “even though that’s – all 121
`of that is created by the Wi-LAN technology[.]” (Trial Tr. at 623:10-25, July 26, 2018,
`ECF No. 506.) Had Dr. Madisetti’s opinion been limited to the “benefits” of the
`patented invention, there would have been no need for Mr. Kennedy to further
`apportion any value of VOLTE to Wi-LAN. That “benefit” should have been
`accounted for by Dr. Madisetti.6
`Absent a sufficient factual basis, Dr. Madisetti’s opinion about the “benefits” of
`claim 26 of the ‘145 Patent should not have been presented to the jury. See
`LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51, 81 (Fed. Cir. 2012)
`(stating “new trial is required because the jury’s verdict was based on expert opinion
`that finds no support in the facts in the record.”) And since Dr. Madisetti’s opinions
`were the basis for Professor Prince’s opinions and Mr. Kennedy’s opinions, those
`
`6 Mr. Kennedy did not apply a similar “profit sharing” deduction to the other two
`valuations, which further raises concerns about the reliability, perhaps, arbitrariness, of
`his opinions.
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`opinions also should have been excluded. See Gbarabe v. Chevron Corp., No. 14-CV-
`00173-SI, 2017 WL 956628, at *17 (N.D. Cal. Mar. 13, 2017) (stating it would be
`“inappropriate” for expert to rely on another expert’s “flawed and speculative report.”)7
`Accordingly, the Court grants Apple’s request for a conditional remittitur of $10
`million. In the event Wi-LAN does not accept this remittitur, the Court grants Apple’s
`motion for a new trial on damages.8
`
`III.
`CONCLUSION AND ORDER
`For the reasons set forth above, the Court denies Apple’s motion for judgment
`as a matter of law on the issue of infringement or damages, and denies Wi-LAN’s
`motion for supplemental damages, ongoing royalty and prejudgment and post judgment
`interest. The Court grants Apple’s motion for a conditional remittitur to $10 million,
`and orders the parties to appear for a settlement conference before Judge Major on
`January 14, 2019, at 10:30 a.m. In the event Wi-LAN accepts the remittitur, a Notice
`of Acceptance of Remittitur must be filed by January 18, 2019. In the event Wi-LAN
`does not accept the remittitur, the Court grants Apple’s motion for a new trial on
`damages, and will set a telephonic status conference with counsel to discuss dates.
`IT IS SO ORDERED.
`DATED: January 3, 2019
`
`HON. DANA M. SABRAW
`United States District Judge
`
`7 The Federal Rules of Evidence permit an expert to rely upon the opinions
`developed by another expert for the purpose of litigation if the expert independently
`verifies the underlying expert’s work. Fosmire v. Progressive Max Ins. Co., 277 F.R.D.
`625, 630 (W.D. Wash. 2011). However, there is no evidence Professor Prince or Mr.
`Kennedy independently verified Dr. Madisetti’s “benefits” opinions in this case.
`8 In light of this ruling, the Court denies Wi-LAN’s motion for supplemental
`damages, ongoing royalty and prejudgment and post judgment interest.
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