Case 3:14-cv-02235-DMS-BLM Document 614 Filed 03/26/19 PageID.30215 Page 1 of 5
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`CASE NO. 14cv2235 DMS (BLM)
`ORDER DENYING WI-LAN’S
`MOTION FOR
`RECONSIDERATION
`
`Plaintiff,
`
`APPLE INC.,
`
`vs.
`
`WI-LAN, INC.,
`
`Defendant.
`_______________________________
`AND ALL RELATED
`COUNTERCLAIMS.
`
`On January 4, 2019, this Court issued an Order granting Apple’s motion for a
`new trial on damages. (ECF No. 554.) Wi-LAN now moves for reconsideration of that
`decision. Apple filed an opposition to the motion, and Wi-LAN filed a reply.
`“Reconsideration is appropriate if the district court (1) is presented with newly
`discovered evidence, (2) committed clear error or the initial decision was manifestly
`unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1J,
`Multnomah County, Oregon v. ACandS, Inc., 5 F.3d 1255, 1263 (9 Cir. 1993). Here,
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`Wi-LAN relies on the second prong, and argues the Court’s decision to grant a new
`trial on damages was clearly erroneous and manifestly unjust. Specifically, Wi-LAN
`asserts there was substantial evidence to support the jury’s damages verdict, and thus
`the Court’s decision to grant a new trial on damages was both clearly erroneous and
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`Case 3:14-cv-02235-DMS-BLM Document 614 Filed 03/26/19 PageID.30216 Page 2 of 5
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`manifestly unjust. Wi-LAN also argues Dr. Madisetti properly measured the technical
`benefit of the invention recited in claim 26 of the ‘145 Patent, and the Court’s decision
`to the contrary was clearly erroneous.
`The burden to show a decision is clearly erroneous is a high one, “which by
`design is difficult to meet.” United States v. Perkins, 850 F.3d 1109, 1125 (9 Cir.
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`2017). “‘To be clearly erroneous, a finding must be more than possibly or even
`probably wrong; the error must be pellucid to any objective observer.’” United States
`v. Christie, 825 F.3d 1048, 1058 (9 Cir. 2016) (quoting United States v. Quaintance,
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`608 F.3d 717, 721 (10 Cir. 2010)) (internal quotation marks omitted). Stated
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`otherwise, “‘to be clearly erroneous, a decision must ... strike us as wrong with the
`force of a five-week old, unrefrigerated dead fish.’” Ocean Garden, Inc. v. Marktrade
`Co., Inc., 953 F.2d 500, 502 (9 Cir. 1991) (quoting Parts and Elec. Motors, Inc. v.
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`Sterling Elec., Inc., 866 F.2d 228, 233 (7 Cir. 1988)). “This stringent standard ‘rests
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`on good sense and the desire to protect both court and parties against the burdens of
`repeated reargument by indefatigable diehards.’” Alaimalo v. United States, 645 F.3d
`1042, 1060 (9 Cir. 2011) (quoting 18B Charles A. Wright et al., Federal Practice and
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`Procedure § 4478 (2d ed. 2002)).
`Here, Wi-LAN argues the Court committed clear error in finding that Dr.
`Madisetti’s opinion about the benefits of claim 26 of the ‘145 Patent lacked a sufficient
`factual basis. However, this argument is essentially a rehash of arguments Wi-LAN
`has raised in previous motions, namely, that Dr. Madisetti did not equate the value of
`claim 26 of the ‘145 Patent with VOLTE. Wi-LAN attempts to put a finer point on that
`argument here by drawing a distinction between VOLTE, in general terms, and one
`aspect of VOLTE, namely “improved voice quality during loading[,]” (Mot. at 10), but
`at its core this argument is simply a different shade of the same argument Wi-LAN has
`been making consistently in this case. As such, it does not warrant reconsideration of
`the Court’s prior finding. See Brown v. Kinross Gold, U.S.A., 378 F.Supp.2d 1280,
`1288 (D. Nev. 2005) (“A motion for reconsideration is not an avenue to re-litigate the
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`Case 3:14-cv-02235-DMS-BLM Document 614 Filed 03/26/19 PageID.30217 Page 3 of 5
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`same issues and arguments upon which the court already has ruled.”) (citing Brogdon
`v. Nat’l Healthcare Corp., 103 F.Supp.2d 1322, 1338 (N.D. Ga. 2000)).
`Furthermore, the Court does not agree with the premise of Wi-LAN’s argument,
`namely, that Dr. Madisetti confined his opinions to that aspect of VOLTE associated
`with improved voice quality “during loading.” As Apple points out, Dr. Madisetti
`testified repeatedly that the benefit of claim 26 of the ‘145 Patent, generally, was
`“much higher quality calls.” (Trial Tr. at 259:20-23, July 24, 2018, ECF No. 504; see
`also id. at 261:22-24 (“And then you compare the quality of voice with VOLTE and
`with Skype then that gives you an idea of how much benefits Apple would have using
`these iPhone.”)) Those opinions were not confined to improved voice quality “during
`loading.” Thus, this argument does not show the Court’s prior finding about Dr.
`Madisetti’s opinion is clearly erroneous.
`Wi-LAN’s only other argument is that there was substantial evidence to support
`the jury’s damages verdict, and thus the Court’s decision to grant a new trial on
`damages was clearly erroneous and manifestly unjust. As an initial matter, the Court
`notes that Wi-LAN did not raise this “substantial evidence” argument in its opposition
`to Apple’s motion for a new trial on damages. Indeed, the lead case in Wi-LAN’s
`motion for reconsideration, Landes Construction Co. v. Royal Bank of Canada, 833
`F.2d 1365 (9 Cir. 1987), is nowhere cited in Wi-LAN’s opposition to Apple’s motion
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`for a new trial on damages. Wi-LAN’s failure to make this specific argument in its
`prior brief is reason enough to deny the motion for reconsideration. See Garber v.
`Embry-Riddle Aeronautical Univ., 259 F.Supp.2d 979, 982 (D. Ariz. 2003) (“[N]ew
`arguments and new legal theories that could have been made at the time of the original
`motion may not be offered in a motion for reconsideration.”)
`Even considering the merits of the argument, it does not warrant reconsideration
`of the Court’s previous order. Contrary to Wi-LAN’s argument, the jury in this case
`was not presented with two alternative theories of damages. Rather, the jury was
`presented with one theory: A reasonable royalty. The evidence Wi-LAN relies on to
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`Case 3:14-cv-02235-DMS-BLM Document 614 Filed 03/26/19 PageID.30218 Page 4 of 5
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`support its assertion that there was another theory of damages, i.e.,œœœœœœœœœœœœœœœ œœœœœœœœœ,
`the rate sheets and the infrastructure analysis, were all part of that theory. Indeed, all
`of that evidence was used primarily as a “check” against Mr. Kennedy’s opinion that
`œœœœœœœœœœœœœœœœœœœœœwas a reasonable royalty in this case. It did not form the basis for an
`alternative theory of damages. 1
`Furthermore, the Court is persuaded that admission of this evidence, combined
`with Dr. Madisetti’s improper opinion on the benefits of claim 26 of the ‘145 Patent,
`“skew[ed] the damages horizon for the jury.” Uniloc USA, Inc. v. Microsoft Corp., 632
`F.3d 1292, 1320 (Fed. Cir. 2011). This is especially so with respect toœœœœœœœœœœœœœœœ
`œœœœœœœœœœand the rate sheets. For instance, although Mr. Kennedy testified thatœœœœ
`œœœœœœœœœœœœœœœœœœœœœœwas “probative” to the hypothetical negotiation analysis, he did not
`say œœœœœœœœœœœœœœœwas comparable to the hypothetical license the parties would have
`agreed to in this case, (Trial Tr. at 693-94, July 26, 2018), which was a prerequisite to
`its admissibility. See LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51, 78-
`81 (Fed. Cir. 2012) (granting new trial because damages testimony relied on licenses
`that were not comparable and therefore not relevant). Indeed, Mr. Kennedy testified
`it was not the similarities between œœœœœœœœœœœœœœœthat made œœœœœœœœœœœœœœœœœœœœœœœœœœrelevant,
`but œœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœthat was “most helpful.” (Id. at 693-
`94.) Admission of the rate sheets was similarly prejudicial. See Whitserve, LLC v.
`Computer Packages, Inc., 694 F.3d 10, 29-30 (Fed. Cir. 2012) (acknowledging that
`although “proposed licenses may have some value for determining a reasonable royalty
`in certain situations[,]” the evidentiary value of proposed licenses is limited by “the fact
`that patentees could artificially inflate the royalty rate by making outrageous offers.”)
`
` The absence of an alternative theory of damages takes this case outside the
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`holding of Landes. In that case, unlike here, the plaintiff actually presented two
`“alternative calculations of damages” to the jury, one based on lost profits and another
`based on “the difference between the purchase price and fair market value[.]” 833 F.2d
`at 1372-73. In light of those two theories, the court concluded “that proper respect for
`the role of the jury and the discretion of the trial judge favors construing a general
`verdict in behalf of the prevailing party.” Id. at 1373. That presumption does not apply
`here, where the jury was presented with only one theory of damages.
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`Case 3:14-cv-02235-DMS-BLM Document 614 Filed 03/26/19 PageID.30219 Page 5 of 5
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`Under these circumstances, the Court cannot say its decision to grant Apple’s
`motion for a new trial on damages was either clearly erroneous or manifestly unjust.
`See United States v. 99.66 Acres of Land, 970 F.2d 651, 658 (9 Cir. 1992) (stating
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`new trial is warranted “on the basis of an incorrect evidentiary ruling if the ruling
`substantially prejudiced a party.”) Accordingly, Wi-LAN’s motion for reconsideration
`is denied.
`IT IS SO ORDERED.
`DATED: March 26, 2019
`
`HON. DANA M. SABRAW
`United States District Judge
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