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`EXHIBIT 2025
`EXHIBIT 2025
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`
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`
`
`Broadcom v. Wi-Fi One, LLC
`Broadcom v. Wi-Fi One, LLC
`|PR2013-00601
`IPR2013-00601
`PO Exhibit 2025
`PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 1 Filed: 12/04/2014
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ERICSSON, INC., TELEFONAKTIEBOLAGET LM
`ERICSSON, AND WI-FI ONE, LLC,
`Plaintiffs-Appellees,
`
`v.
`
`D-LINK SYSTEMS, INC., NETGEAR, INC., ACER,
`INC., ACER AMERICA CORPORATION, AND
`GATEWAY, INC.,
`Defendants-Appellants,
`
`AND
`
`DELL, INC.,
`Defendant-Appellant,
`
`AND
`
`TOSHIBA AMERICA INFORMATION SYSTEMS,
`INC. AND TOSHIBA CORPORATION,
`Defendants-Appellants,
`
`AND
`
`INTEL CORPORATION,
`Intervenor-Appellant,
`
`AND
`
`BELKIN INTERNATIONAL, INC.,
`Defendant.
`______________________
`
`
`
`
`
`
`
`
`
`Broadcom v. Wi-Fi One, LLC
` IPR2013-00601
` PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 2 Filed: 12/04/2014
`
`
`2013-1625, -1631, -1632, -1633
`______________________
`
`Appeals from the United States District Court for the
`Eastern District of Texas in No. 10-CV-0473, Judge
`Leonard Davis.
`
`______________________
`
`Decided: December 4, 2014
`______________________
`
`DOUGLAS A. CAWLEY, McKool Smith, P.C., of Dallas,
`Texas, argued for plaintiffs-appellees Ericsson Inc., et al.
`With him on the brief were THEODORE STEVENSON, III and
`WARREN LIPSCHITZ, and JOHN B. CAMPBELL and KATHY H.
`LI, of Austin, Texas. Of counsel on the brief was JOHN M.
`WHEALAN, of Chevy Chase, Maryland.
`
`WILLIAM F. LEE, Wilmer Cutler Pickering Hale and
`Dorr LLP, of Boston, Massachusetts, argued for defend-
`ants-appellants and intervenor-appellant. With him on
`the brief for intervenor-appellant Intel Corporation were
`JOSEPH J. MUELLER, MARK C. FLEMING, and LAUREN B.
`FLETCHER, of Boston, Massachusetts; and JAMES L.
`QUARLES, III, of Washington, DC. Of counsel on the brief
`were GREG AROVAS, Kirkland & Ellis LLP, of New York,
`New York, ADAM R. ALPER, of San Francisco, California,
`and JOHN C. O’QUINN, of Washington, DC. On the brief
`for defendants-appellants D-Link Systems, Inc., et al.,
`were ROBERT A. VAN NEST, STEVEN A. HIRSCH, EUGENE M.
`PAIGE and MATAN SHACHAM, Keker & Van Nest LLP, of
`San Francisco, California; CHRISTINE M. MORGAN, DOYLE
`B. JOHNSON, JONAH D. MITCHELL, SCOTT D. BAKER, Reed
`Smith LLP, of San Francisco, California; and JAMES C.
`MARTIN, of Pittsburgh, Pennsylvania. On the brief for
`defendants-appellants Toshiba Corporation, et al., were
`
`
`
`
`
`
`
`
`
`Broadcom v. Wi-Fi One, LLC
` IPR2013-00601
` PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 3 Filed: 12/04/2014
`
`JOHN J. FELDHAUS and PAVAN K. AGARWAL, Foley &
`Lardner LLP, of Washington, DC.
`
`MICHAEL J. NEWTON, Alston & Bird LLP, of Dallas,
`Texas, argued for defendant-appellant, Dell, Inc. With
`him on the brief were DWAYNE C. NORTON and SHAUN W.
`HASSETT; and FRANK G. SMITH, III, of Atlanta, Georgia.
`
`MICHAEL A. LINDSAY, Dorsey & Whitney LLP, of Min-
`neapolis, Minnesota, for amicus curiae The Institute of
`Electrical and Electronics Engineers, Incorporated. Of
`counsel on the brief was EILEEN M. LACH, IEEE, General
`Counsel and Chief Compliance Officer, of New York, New
`York.
`
`
`RICHARD M. BRUNELL, for amicus curiae American
`Antitrust Institute, of Washington, DC.
`
`JEFFREY BLUMENFELD, Lowenstein Sandler LLP, of
`New York, New York, for amici curiae, Cisco Systems,
`Inc., et al. Of counsel on the brief was MARTA BECKWITH,
`Cisco Systems, Inc., San Jose, California. On the brief for
`amicus curiae Hewlett-Packard Company was BARRY K.
`SHELTON, Bracewell & Giuliani, of Austin, Texas.
`
`T. ANDREW CULBERT, Microsoft Corporation, of Red-
`mond, Virginia, for amicus curiae Microsoft Corporation.
`With him on the brief was DAVID E. KILLOUGH.
`
`DAN L. BAGATELL, Perkins Coie LLP, of Phoenix, Ari-
`zona, for amici Broadcom Corporation. With him on the
`brief was AMANDA TESSAR, of Denver, Colorado. On the
`brief for Marvell Semiconductor, Inc. was DONALD M.
`FALK, Mayer Brown LLP, of Palo Alto, California. On the
`brief for Media Tek Inc. was STEVEN C. HOLTZMAN, Boies,
`Schiller & Flexner LLP, of Oakland, California.
`
`
`
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`
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`
`
`Broadcom v. Wi-Fi One, LLC
` IPR2013-00601
` PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 4 Filed: 12/04/2014
`
`RICHARD S. TAFFET, Bingham McCutchen LLP, of New
`York, New York, for amicus curiae Dolby Laboratories,
`Inc. On the brief was PATRICK STRAWBRIDGE, of Boston,
`Massachusetts.
`
`ROGER G. BROOKS, Cravath, Swaine & Moore LLP, of
`New York, New York, for amicus curiae Qualcomm Incor-
`porated.
`
`DARYL L. JOSEFFER, King & Spalding LLP, of Wash-
`ington, DC, for amici curiae Nokia Corporation, et al.
`With him on the brief was ETHAN P. DAVIS.
`______________________
`
`Before O’MALLEY, TARANTO, and HUGHES, Circuit Judges.
`Opinion for the court filed by Circuit Judge O’MALLEY.
`Opinion dissenting in part filed by Circuit Judge
`TARANTO.
`O’MALLEY, Circuit Judge.
`Ericsson, Inc. & Telefonaktiebolaget LM Ericsson (col-
`lectively, “Ericsson”) brought suit against D-Link Sys-
`tems, Inc.; Netgear, Inc.; Acer, Inc.; Acer America Corp.;
`Gateway, Inc.; Dell, Inc.; Toshiba America Information
`Systems, Inc.; and Toshiba Corp., with Intel Corp. inter-
`vening (collectively, “D-Link”), in the United States
`District Court for the Eastern District of Texas, alleging
`infringement of, inter alia, certain claims from U.S.
`Patent Nos. 6,424,625 (“the ’625 patent”); 6,466,568 (“the
`’568 patent”); and 6,772,215 (“the ’215 patent”). All of the
`patents at issue generally relate to Wi-Fi technology
`employed by electronic devices to wirelessly access the
`Internet. Ericsson alleged that all of the patents at issue
`were essential to the Wi-Fi standard, which would mean
`that all Wi-Fi-capable devices infringe Ericsson’s patents.
`
`
`
`
`
`
`
`
`
`Broadcom v. Wi-Fi One, LLC
` IPR2013-00601
` PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 5 Filed: 12/04/2014
`
`The case progressed to a jury trial, where the jury
`found that D-Link infringed the asserted claims of the
`three patents and assigned roughly $10 million in damag-
`es—approximately 15 cents per infringing device. After
`post-trial motions, the district court upheld the jury’s
`infringement and validity findings and refused to grant a
`new trial based on an alleged violation of the “entire
`market value rule” (“EMVR”) and allegedly deficient jury
`instructions regarding the standard-setting context and
`Ericsson’s “reasonable and non-discriminatory” licensing
`obligations derived from that context. For the reasons
`explained below, we affirm-in-part, reverse-in-part, va-
`cate-in-part, and remand.
`I. BACKGROUND
`A. Technology and Standards Background
`Interoperability is an essential requirement for many
`electronic devices. For example, if a user brings her
`laptop to a local coffee shop, she expects that her laptop
`will charge when she plugs it in and that she will be able
`to access the Internet when she connects to the coffee
`shop’s wireless network. For the user to be able to charge
`her laptop, the plug must be in the correct shape and the
`laptop charger must be able to accept the voltage output
`of the outlet. For the user to be able to connect to the
`Internet, her laptop must know, inter alia, what frequen-
`cy to search for the wireless signal, what messages to
`send to the network to set up a connection, and how to
`interpret the messages sent from the network. Though
`most users take for granted that their electronic devices
`will be able to charge and connect to the wireless Internet
`anywhere, interoperability does not happen automatical-
`ly. Because of the multitude of devices, device designers,
`and manufacturers, there must be an established stand-
`ard mode of operation to ensure compatibility among all of
`these different devices.
`
`
`
`
`
`
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`
`
`Broadcom v. Wi-Fi One, LLC
` IPR2013-00601
` PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 6 Filed: 12/04/2014
`
`Standards development organizations (“SDOs”) pub-
`lish standards, which are lists of technical requirements.
`Compliance with these technical requirements ensures
`interoperability among compliant devices. Of course, at
`least a critical mass of device developers must adopt the
`standard in order to ensure mass interoperability.1
`Relevant to this case, the Institute of Electrical and
`Electronics Engineers, Inc. (“IEEE”) publishes the 802.11
`standards, more commonly known as “Wi-Fi.” Br. of
`Amici Curiae Institute of Electrical and Electronics
`Engineers, Inc. (“IEEE Br.”) at 1–2. The 802.11 standard
`is the prevailing wireless internet standard and has
`already reached widespread adoption. A device is consid-
`ered 802.11-compliant if it adheres to the IEEE’s techno-
`logical requirements stated in the 802.11 standard.
`Requiring all 802.11-compliant devices to operate in a
`certain way ensures that every compliant device can
`communicate with all other 802.11-compliant devices.2
`For example, an 802.11-compliant laptop will be able
`to establish a connection with an 802.11-compliant router.
`The 802.11 standards also govern how subsequent data is
`passed between the laptop and the router once that
`
`1 A single standard will often emerge even if initial-
`ly there are competing standards. For example, the Blu-
`ray standard won out over the HD DVD standard in the
`high-definition optical disc war. Martin Fackler, Toshiba
`Acknowledges Defeat as Blu-ray Wins Format Battle, N.Y.
`TIMES, February 20, 2008, at C1.
`2 The 802.11 standard is not a static set of require-
`ments. Indeed, it has been updated multiple times.
`When the 802.11 standard is updated, it is given a letter
`to indicate the version of the standard, e.g., 802.11(g).
`Devices are typically compliant with a specific version of
`the 802.11 standard, indicated by the letter. This case
`specifically addresses the 802.11(n) standard.
`
`
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`
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`Broadcom v. Wi-Fi One, LLC
` IPR2013-00601
` PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 7 Filed: 12/04/2014
`
`connection is established. This includes, inter alia, data
`formatting, prioritization, error handling, and flow con-
`trol.
`Importantly for this case, data files are not sent be-
`tween a router and a laptop in a single transmission. For
`example, if a laptop user wants to download a video, the
`router does not send the entire file in a single huge
`transmission. Instead, each data file is broken into
`“packets,” where each packet is sent in a different trans-
`mission. Small files may only require a single packet,
`whereas large files, e.g., video and sound, may require
`thousands of packets. The receiving device then reassem-
`bles the file out of the packets. The data from the file in
`the packet is called the “payload.” Because packets may
`be lost or arrive out of order, the 802.11 standard provides
`ways to handle these errors. For example, each packet
`has a “header” that is sent to the receiving device with the
`packet. The header contains, inter alia, a sequence num-
`ber so the receiving device knows the order in which to
`reassemble the payload of the packets.
`Creating some standards, like IEEE’s 802.11 stand-
`ard, is a complicated process that involves the collabora-
`tion and can involve cooperation of a number of interested
`parties. IEEE Br. 4–12. Due to the collaborative nature
`of this process, the chosen standard may include technol-
`ogy developed by a number of different parties. Some-
`times that technology is covered by patents. Because the
`standard requires that devices utilize specific technology,
`compliant devices necessarily infringe certain claims in
`patents that cover technology incorporated into the
`standard. These patents are called “standard essential
`patents” (“SEPs”). IEEE Br. 13–14.
`SEPs pose two potential problems that could inhibit
`widespread adoption of the standard: patent hold-up and
`royalty stacking. Patent hold-up exists when the holder
`of a SEP demands excessive royalties after companies are
`
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`Broadcom v. Wi-Fi One, LLC
` IPR2013-00601
` PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 8 Filed: 12/04/2014
`
`locked into using a standard. Royalty stacking can arise
`when a standard implicates numerous patents, perhaps
`hundreds, if not thousands. If companies are forced to
`pay royalties to all SEP holders, the royalties will “stack”
`on top of each other and may become excessive in the
`aggregate. To help alleviate these potential concerns,
`SDOs often seek assurances from patent owners before
`publishing the standard. IEEE, for example, asks SEP
`owners to pledge that they will grant licenses to an unre-
`stricted number of applicants on “reasonable, and non-
`discriminatory” (“RAND”) terms. IEEE Br. at 16–18.
`B. Ericsson’s SEPs
`Ericsson has asserted that all of the patents at issue
`are SEPs for IEEE’s 802.11(n) standard. Ericsson prom-
`ised to offer licenses for all of its 802.11(n) SEPs at a
`RAND rate via letters of assurance to the IEEE. In its
`letters, Ericsson pledged to “grant a license under reason-
`able rates to an unrestricted number of applicants on a
`worldwide basis with reasonable terms and conditions
`that are demonstrably free of unfair discrimination.”
`Joint Appendix (“J.A.”) 17253. The parties agree that this
`commitment is binding on Ericsson. See also IEEE Br.
`19–20.
`
`1. The ’568 Patent
`patent,
`titled
`“Multi-Rate Radio-
`’568
`The
`communication Systems and Terminals,” describes priori-
`tizing packets based on the type of payload in the packet.
`The prioritization of packets is important because net-
`works all have a bandwidth limitation. Bandwidth refers
`to the amount of data that can be sent across the network
`at one time. When a network receives multiple requests
`at the same time, it must be able to respond to all of the
`requests in a timely fashion. Due to the network’s band-
`width limitation, however, the messages cannot be sent
`all at once. Though networks can deal with the band-
`width limitation problem in different ways, each method
`
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`
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`Broadcom v. Wi-Fi One, LLC
` IPR2013-00601
` PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 9 Filed: 12/04/2014
`
`involves dividing the available bandwidth among the
`outstanding requests.
`The ’568 patent explains that networks transmit a va-
`riety of different types of payloads, including “voice, video,
`and data.” According to the ’568 patent, networks in the
`prior art did not have the ability to prioritize certain types
`of data over others. Because certain types of transmis-
`sions are less preferable when delayed—e.g., voice call-
`ing—the ’568 patent discloses transmitting the type of
`transmission as part of the header. This would allow the
`network to dedicate more bandwidth to the higher priori-
`ty transmission types, thereby sending those packets
`more quickly.
`Claims 1 and 5 are at issue in this appeal. Claim 1 is
`representative:
`1. A communications station comprising:
`a processor for arranging information for trans-
`mission including providing at least one first field
`in which payload information is disposed and
`providing at least one second field, separate from
`said first field, which includes a service type iden-
`tifier which identifies a type of payload infor-
`mation provided in said at least one first field; and
`a transmitter for transmitting information re-
`ceived from said processor including said at least
`one first field and said at least one second field.
`’568 patent col. 13 ll. 11–21 (emphasis added).
`2. The ’215 Patent
`As described above, files are broken into packets,
`which are sent to the receiving device with sequence
`numbers so the receiving device can reassemble the
`payload in the correct order. Packets, however, are often
`lost or corrupted during transmission. To ensure that the
`receiver receives the payload in those lost or corrupted
`
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`
`
`Broadcom v. Wi-Fi One, LLC
` IPR2013-00601
` PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 10 Filed: 12/04/2014
`
`packets, the transmitter will have to resend those pack-
`ets. For the transmitter to know which packets need to be
`resent, the receiving device must tell the transmitting
`device which packets it did not receive or are corrupted.
`This may be done using an “Automatic Repeat Request”
`(“ARQ”) protocol. In an ARQ protocol, the receiving
`device will send a “feedback response” to the transmitting
`device. Though feedback response messages can be in
`different formats, the feedback response will generally
`indicate which packets, if any, are missing or corrupted.
`The transmitting device will then retransmit those miss-
`ing packets.
`Although ARQ protocols existed in the prior art, the
`’215 patent, titled “Method for Minimizing Feedback
`Responses in ARQ Protocols,” asserts that those prior art
`ARQ protocols wasted bandwidth because they were
`“static” and not adaptable. By making the feedback
`response type dynamic, the ’215 patent discloses that the
`response could be formatted in the most efficient response
`type. For example, if 1 packet out of 100 is missing, just
`the missing packet number could be sent. Conversely, if
`50 out of 100 packets are missing, the response could be a
`bitmap with a bit set to one to indicate the missing pack-
`ets, instead of a list of all 50 missing packet numbers. To
`solve this alleged deficiency in the prior art, the ’215
`patent discloses adding a “type identifier field” (“TIF”) to
`the feedback response that identifies the format of that
`feedback response. This would allow the receiver to
`choose dynamically between different types of feedback
`responses based on which response would be most effi-
`cient, e.g., a list of packet numbers or a bitmap.
`Claim 1 is the independent claim at issue:
`1. A method for minimizing feedback responses in
`an ARQ protocol, comprising the steps of:
`sending a plurality of first data units over a com-
`munication link;
`
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`
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`Broadcom v. Wi-Fi One, LLC
` IPR2013-00601
` PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 11 Filed: 12/04/2014
`
`receiving said plurality of first data units; and
`responsive to the receiving step, constructing a
`message field for a second data unit, said message
`field including a type identifier field and at least
`one of a sequence number field, a length field, and
`a content field.
`’215 patent col. 10 ll. 19–28 (emphasis added).
`3. The ’625 Patent
`Due to technical limitations, prior art receiving devic-
`es used a limited “reception window” for keeping track of
`which packets it had received. Because this reception
`window was finite, if the receiving device received a
`packet outside of the window, it would not accept the
`packet. The window would not move forward until it
`received all of the packets in the current window. This
`process ensures that the receiver will receive all of the
`missing packets. For certain “delay sensitive applica-
`tions,” however, a 0% packet loss rate is not required and
`significantly delayed packets provide no benefit—e.g.,
`“telephony, video conferencing, and delay sensitive control
`systems.” ’625 patent col. 3 ll. 51–53.
`According to the ’625 patent, prior art transmitting
`devices had no way to tell the receiving device to ignore
`unnecessary, missing packets and shift the receiving
`window forward. The ’625 patent discloses adding a way
`for the transmitting device to force the receiving device to
`accept packets that may be out of its reception window.
`This will also shift the reception window forward and the
`receiving device will forget about the delayed or lost
`packets that would no longer provide any benefit.
`Claim 1 is at issue in this appeal:
`1. A method for discarding packets in a data net-
`work employing a packet transfer protocol includ-
`
`
`
`
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`Broadcom v. Wi-Fi One, LLC
` IPR2013-00601
` PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 12 Filed: 12/04/2014
`
`ing an automatic repeat request scheme, compris-
`ing the steps of:
`a transmitter in the data network commanding a
`receiver in the data network to a) receive at least
`one packet having a sequence number that is not
`consecutive with a sequence number of a previous-
`ly received packet and b) release any expectation of
`receiving outstanding packets having sequence
`numbers prior to the at least one packet; and
`the transmitter discarding all packets for which
`acknowledgment has not been received, and which
`have sequence numbers prior to the at least one
`packet.
`’625 patent col. 10 ll. 13–26 (emphases added).
`C. The Accused Products
`The accused infringers in this case produce a variety
`of electronic devices, including laptop computers and
`routers (“the end products”), which incorporate 802.11(n)
`wireless chips made by Intel. Because all of these end
`products
`incorporate 802.11(n)-compliant chips, they
`must be capable of the functionality mandated by the
`802.11(n) standard.
`For example, the standard requires that, in the head-
`er of an 802.11(n)-compliant packet, there must be a
`traffic identifier (“TID”) field that indicates the priority of
`the data. This TID field has a value from 0–7, which
`indicates its priority. Packages with higher priority
`typically will be sent more quickly or given more band-
`width than those with lower priority. And the standard
`explains that one use of this TID identifier is to associate
`particular values with particular types of information
`inside packages—to correspond to a particular kind of
`payload—as indicated in the following table giving an
`example:
`
`
`
`
`
`
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`
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`Broadcom v. Wi-Fi One, LLC
` IPR2013-00601
` PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 13 Filed: 12/04/2014
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`
`
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`
`
`J.A. 15781. In this table, each priority is given an in-
`formative “Designation.” For example, priority levels 4
`and 5 are given the designation “Video.”
`For further examples of required functionality, the
`802.11(n) standard also requires feedback response head-
`ers to include information about the type of feedback
`response in the BlockAck field:
`
`
`
`
`
`
`J.A. 16778. The 802.11(n) standard allows three different
`types of feedback responses: Basic BlockAck, Compressed
`BlockAck, and Multi-TID BlockAck. Sending this infor-
`mation as part of the header is mandatory for interopera-
`bility between devices.
`
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`Broadcom v. Wi-Fi One, LLC
` IPR2013-00601
` PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 14 Filed: 12/04/2014
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`All 802.11(n)-compliant devices, moreover, must be
`capable of accepting any packets they receive. In other
`words, 802.11(n)-compliant devices do not use a limited
`reception window. The receiver is just programmed to
`receive automatically all packets, regardless of the pack-
`et’s sequence number.
`D. The Dell-Ericsson AB Agreement
`Dell argues on appeal that it has a license to practice
`the patents at issue based on its prior agreement with
`Ericsson AB. Ericsson AB is a Swedish manufacturing
`and development subsidiary of LM Ericsson. LM Ericsson
`is the Swedish parent corporation of Ericsson AB and
`owns the patents-in-suit. LM Ericsson and its North
`American subsidiary, Ericsson, Inc., are the two plaintiffs-
`appellees in the suit.
`On February 13, 2008, Ericsson AB and Dell executed
`a Master Purchase Agreement (“MPA”), under which
`Ericsson AB would provide Dell with mobile broadband
`products for three years from the date of execution of the
`MPA. Ericsson AB is the only named “supplier” listed in
`the MPA, as well as the only signatory to the MPA aside
`from Dell. The MPA also separately defined Ericsson
`AB’s “Affiliates.” At issue in this appeal, Section 12.1 of
`the MPA, entitled “Dispute Resolution,” stated that
`“[s]upplier will not commence any lawsuit or seek any
`judicial order affecting Dell or add Dell as a party to any
`pending legal or administrative proceeding that is not
`directly related to Dell’s purchase of Products or that may
`prevent Dell from shipping any Dell or third-party prod-
`ucts.” J.A. 6348 (emphasis added).
`E. Procedural History
`On September 14, 2010, Ericsson filed suit in the
`United States District Court for the Eastern District of
`Texas, accusing D-Link of infringing nine patents that,
`according to Ericsson, were essential to the 802.11(n)
`
`
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`Broadcom v. Wi-Fi One, LLC
` IPR2013-00601
` PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 15 Filed: 12/04/2014
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`wireless standard. Intel, the wireless internet chip sup-
`plier for the accused products, intervened. On March 8,
`2013, the magistrate judge issued a claim construction
`order, which the district court judge adopted. Ericsson
`Inc. v. D-Link Corp. (“Claim Construction Order”), No.
`6:10-cv-473, 2013 WL 949378 (E.D. Tex. Mar. 8, 2013).
`Shortly before trial, the trial judge denied D-Link’s mo-
`tion to exclude the testimony of Ericsson’s damages
`expert, over D-Link’s argument that the testimony violat-
`ed the EMVR. Prior to trial, the court also granted sum-
`mary judgment against Dell, rejecting its argument that
`it had a license based on the MPA.
`Although the parties were forced to narrow the case
`for trial, Ericsson still accused D-Link of infringing 5
`different patents at trial. On June 13, 2013, after a 7-day
`jury trial, the jury found that D-Link infringed the assert-
`ed claims in three of Ericsson’s patents—the ’568, ’215,
`and ’625 patents. The jury also found that the ’625 patent
`was valid over a prior art publication (“the Petras refer-
`ence”). As past damages for that infringement, the jury
`awarded Ericsson approximately $10 million—roughly 15
`cents per infringing device. After the jury trial, the trial
`court conducted a separate bench trial regarding several
`RAND issues.3
`
`3 At the bench trial, D-Link asked the district court
`to: (1) determine an appropriate RAND rate, (2) find that
`Ericsson breached its RAND agreement by refusing to
`license Intel, and (3) find that Ericsson is not entitled to
`an injunction. D-Link concedes that it proffered evidence
`to the trial court regarding Ericsson’s RAND obligations
`that it did not offer to the jury, despite its argument to
`the jury that any royalty rate chosen must be reflective of
`those RAND obligations. It is unclear why D-Link made
`this choice, particularly because D-Link refused to be
`bound by any court-determined royalty rate. Once the
`
`
`
`
`
`
`
`
`
`Broadcom v. Wi-Fi One, LLC
` IPR2013-00601
` PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 16 Filed: 12/04/2014
`
`Following the bench trial, D-Link filed a motion for
`judgment as a matter of law (“JMOL”) and a new trial,
`arguing that the jury’s findings of infringement and no
`invalidity, as well as its damages award, were not sup-
`ported by substantial evidence. D-Link further contended
`that Ericsson’s expert violated the EMVR by relying on
`licenses that were based on the value of the end products.
`D-Link asserted, moreover, that the jury was inadequate-
`ly instructed regarding Ericsson’s RAND obligation.
`The trial court denied D-Link’s post-trial motions,
`finding that substantial evidence supported: (1) the jury’s
`findings of infringement; (2) the validity of the ’625 pa-
`tent; and (3) the jury’s $10 million award. The judge also
`concluded that Ericsson’s damages testimony was not
`inconsistent with the EMVR and that the jury instruction
`regarding Ericsson’s RAND obligations was adequate.
`The judge further found that, based on the jury’s award,
`15 cents per product was an appropriate ongoing RAND
`rate for the three infringed patents. Ericsson Inc. v. D-
`Link Corp. (“JMOL Order”), No. 6:10-cv-473, 2013 WL
`4046225 (E.D. Tex. Aug. 6, 2013). According to the trial
`court, moreover, Ericsson did not violate its RAND obliga-
`tions by offering Intel a license at the rate of 50 cents per
`unit. In fact, the court concluded that it was Intel that
`violated its obligation to negotiate a royalty rate in good
`faith. Id. at *16.
`D-Link timely appealed to this court. We have juris-
`diction under 28 U.S.C. § 1295(a)(1) (2012).
`
`jury had set the RAND rate, the judge rejected D-Link’s
`invitation to separately determine the award at the bench
`trial. D-Link does not appeal that ruling, arguing only
`that the jury was not adequately instructed about Erics-
`son’s RAND obligations, not that the court should have
`made that decision.
`
`
`
`
`
`
`
`
`
`Broadcom v. Wi-Fi One, LLC
` IPR2013-00601
` PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 17 Filed: 12/04/2014
`
`II. DISCUSSION
`On appeal, D-Link raises a number of issues: (1)
`whether the jury had substantial evidence to find that D-
`Link infringed claims 1 and 5 of the ’568 patent; (2)
`whether the district court properly construed the term
`“responsive to the receiving step, constructing a message
`field for a second data unit, said message field including a
`type identifier field” in the ’215 patent, and, if the district
`court correctly construed that term, whether the jury had
`substantial evidence to find that D-Link infringed claims
`1 and 2 of the ’215 patent; (3) whether the jury had sub-
`stantial evidence to find that D-Link infringed claim 1 of
`the ’625 patent and that the Petras reference did not
`anticipate the ’625 patent; (4) whether Ericsson’s damag-
`es theory was presented in violation of the EMVR; (5)
`whether the jury was instructed properly regarding
`Ericsson’s RAND obligations; and (6) whether Dell had a
`license to practice the patents at issue based on its
`agreement with Ericsson AB. We address each issue in
`turn.
`
`A. Infringement
`We first address D-Link’s challenges to the infringe-
`ment findings. We review the trial court’s decision on a
`motion for JMOL under the law of the regional circuit, in
`this case, the Fifth Circuit. Verizon Servs. Corp. v. Cox
`Fibernet Va., Inc., 602 F.3d 1325, 1331 (Fed. Cir. 2010).
`The Fifth Circuit reviews the denial of a motion for JMOL
`de novo, but the “jury’s verdict can only be overturned if
`there is no legally sufficient evidentiary basis for a rea-
`sonable jury to find as the jury did.” Miller v. Raytheon
`Co., 716 F.3d 138, 144 (5th Cir. 2013). We review issues
`of patent law applying this court’s case law. Claim con-
`struction is an issue of law reviewed de novo. Lighting
`Ballast Control LLC v. Philips Elecs. N. Am. Corp., 744
`F.3d 1272, 1276–77 (Fed. Cir. 2014) (en banc). Infringe-
`ment and anticipation are issues of fact reviewed for
`
`
`
`
`
`
`
`
`
`Broadcom v. Wi-Fi One, LLC
` IPR2013-00601
` PO Exhibit 2025
`
`

`

`Case: 13-1625 Document: 197-2 Page: 18 Filed: 12/04/2014
`
`substantial evidence. 01 Communique Lab., Inc. v. Log-
`MeIn, Inc., 687 F.3d 1292, 1296 (Fed. Cir. 2012); In re
`Montgomery, 677 F.3d 1375, 1379 (Fed. Cir. 2012).
`1. The ’568 Patent
`D-Link contends that the jury did not have substan-
`tial evidence to find infringement of the asserted claims of
`the ’568 patent, specifically with respect to the “service
`type identifier which identifies a type of payload infor-
`mation” limitation. Neither party challenges the district
`court’s construction of that limitation as “an identifier
`that identifies the type of information conveyed in the
`payload. Examples of types of information include, but
`are not limited to, video, voice, data, and multimedia.”
`Claim Construction Order, 2013 WL 949378, at *11.
`To prove literal infringement, the patentee must show
`that the accused device contains each and every limitation
`of the asserted claims. Presidio Components, Inc. v. Am.
`Tech. Ceramics, Corp., 702 F.3d 1351, 1358 (