IN THE UNITED STATES DISTRJCT COURT
`FOR THE DISTRJCT OF DELAWARE
`
`TQ DELTA, LLC,
`
`Plaintiff,
`
`V.
`
`2WIRE, INC. ,
`
`Defendant.
`
`Civil Action No. 1 :13-cv-01835-RGA
`
`MEMORANDUM OPINION
`
`Brian E. Farnan and Michael J. Farnan, FARNAN LLP, Wilmington, DE; Peter J. McAndrews,
`Thomas J. Wimbiscus, James P. Murphy, Paul W. McAndrews, Rajendra Chiplunkar, Anna M.
`Targowska, and Ashley M. Ratycz, MCANDREWS, HELD & MALLOY, LTD., Chicago, IL.
`
`Attorneys for Plaintiff.
`
`Jody C. Barillare, MORGAN LEWIS & BOCKIUS LLP, Wilmington, DE; Brett Schuman,
`Rachel M. Walsh, and Monte M.F. Cooper, GOODWIN PROCTER LLP, San Francisco, CA.
`
`Attorneys for Defendant.
`
`August Z-3 , 2019
`
`TQ Delta Exhibit 2003
`COMMSCOPE, INC. v. TQ DELTA
`LLC IPR2023-00066
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`Page 1 of 16
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`Presently before me is Defendant' s Motion for Judgment as a Matter of Law, or in the
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`Alternative, for a New Trial for Family 3. (D.1. 1214). The Parties have fully briefed the issues.
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`(D.I. 1215, 1226, 1230). For the reasons discussed more fully below, I will deny Defendant's
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`motion.
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`I.
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`BACKGROUND
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`Plaintiff filed suit on November 4, 2013 , alleging that Defendant's DSL customer
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`premise equipment ("CPE") infringes several of its patents. (D.1. 1 ). I split the case into
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`separate trials based on the asserted patents' families. (D.I. 280). On May 20-23 , 2019, I held a
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`four-day liability-only jury trial addressing the Family 3 patents. (D.I. 1234-1237 ("Tr.")). The
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`jury found the asserted claims of the Family 3 patents-in-suit valid and infringed. (D.I. 1187).
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`The Family 3 patents that went to trial are U.S . Patent Nos. 7,836,381 ("' 381 Patent"),
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`7,844,882 ("' 882 Patent"), and 8,276,048 ('" 048 Patent"). They relate "to memory sharing in
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`communication systems. " (' 3 81 Patent at 1: 18-19). The Accused Products are Defendant's CPE
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`that contain certain Broadcom chipsets.
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`The jury found that Defendant's CPE infringes a claim from each of the three patents-in-
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`suit. The jury found claim 5 of the ' 3 81 Patent valid and infringed:
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`A non-transitory computer-readable information storage media having stored
`thereon instructions, that if executed by a processor, cause to be performed a
`method for allocating shared memory in a transceiver comprising:
`
`transmitting or receiving, by the transceiver, a message during initialization
`specifying a maximum number of bytes of memory that are available to be
`allocated to a deinterleaver;
`
`determining, at the transceiver, an amount of memory required by the
`deinterleaver to deinterleave a first plurality of Reed Solomon (RS) coded
`data bytes within a shared memory;
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`2
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`Page 2 of 16
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`allocating, in the transceiver, a first number of bytes of the shared memory
`to the deinterleaver to deinterleave a first plurality of Reed Solomon (RS)
`coded data bytes for reception at a first data rate, wherein the allocated
`memory for the deinterleaver does not exceed the maximum number of
`bytes specified in the message;
`
`allocating, in the transceiver, a second number of bytes of the shared
`memory to an interleaver to interleave a second plurality of RS coded data
`bytes transmitted at a second data rate; and
`
`deinterleaving the first plurality of RS coded data bytes within the shared
`memory allocated to the deinterleaver and interleaving the second plurality
`of RS coded data bytes within the shared memory allocated to the
`interleaver, wherein the shared memory allocated to the deinterleaver is
`used at the same time as the shared memory allocated to the interleaver.
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`(' 3 81 Patent, claim 5).
`
`The jury found claim 13 of the '882 Patent valid and infringed:
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`A system that allocates shared memory comprising:
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`a transceiver that performs:
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`transmitting or receiving a message during initialization specifying
`a maximum number of bytes of memory that are available to be
`allocated to a deinterleaver;
`
`determining an amount of memory required by the deinterleaver to
`deinterleave a first plurality of Reed Solomon (RS) coded data bytes
`within a shared memory;
`
`allocating a first number of bytes of the shared memory to the
`deinterleaver to deinterleave a first plurality of Reed Solomon (RS)
`coded data bytes for reception at a first data rate, wherein the
`allocated memory for the deinterleaver does not exceed the
`maximum number of bytes specified in the message;
`
`allocating a second number of bytes of the shared memory to an
`interleaver to interleave a second plurality of RS coded data bytes
`transmitted at a second data rate; and
`
`deinterleaving the first plurality of RS coded data bytes within the
`shared memory allocated to the deinterleaver and interleaving the
`second plurality of RS coded data bytes within the shared memory
`allocated to the interleaver, wherein the shared memory allocated to
`the deinterleaver is used at the same time as the shared memory
`allocated to the interleaver.
`
`(' 882 Patent, claim 13).
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`3
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`Page 3 of 16
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`And the jury found claim 1 of the '048 Patent valid and infringed:
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`A system that allocates shared memory comprising:
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`a transceiver that is capable of:
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`transmitting or receiving a message during initialization specifying
`a maximum number of bytes of memory that are available to be
`allocated to an interleaver;
`
`determining an amount of memory required by the interleaver to
`interleave a first plurality of Reed Solomon (RS) coded data bytes
`within the shared memory;
`
`allocating a first number of bytes of the shared memory to the
`interleaver to interleave the first plurality of Reed Solomon (RS)
`coded data bytes for transmission at a first data rate, wherein the
`allocated memory for the interleaver does not exceed the maximum
`number of bytes specified in the message;
`
`allocating a second number of bytes of the shared memory to a
`deinterleaver to deinterleave a second plurality of RS coded data
`bytes received at a second data rate; and
`
`interleaving the first plurality of RS coded data bytes within the
`shared memory allocated to the interleaver and deinterleaving the
`second plurality of RS coded data bytes within the shared memory
`allocated to the deinterleaver, wherein the shared memory allocated
`to the interleaver is used at the same time as the shared memory
`allocated to the deinterleaver.
`
`('048 Patent, claim 1 ).
`
`II.
`
`LEGAL ST A DARD
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`A. Judgment as a Matter of Law
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`Judgment as a matter of law is appropriate if "the court finds that a reasonable jury would
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`not have a legally sufficient evidentiary basis to find for [a] party" on an issue. Fed. R. Civ. P.
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`50( a)(l ). "Entry of judgment as a matter oflaw is a ' sparingly' invoked remedy, 'granted only
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`if, viewing the evidence in the light most favorable to the nonmovant and giving it the advantage
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`of every fair and reasonable inference, there is insufficient evidence from which a jury
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`reasonably could find liability. " ' Marra v. Phi/a. Haus. Auth., 497 F.3d 286, 300 (3d Cir. 2007)
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`( citation omitted).
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`4
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`"To prevail on a renewed motion for JMOL following a jury trial, a party must show that
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`the jury' s findings, presumed or express, are not supported by substantial evidence or, if they
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`were, that the legal conclusion(s) implied [by] the jury' s verdict cannot in law be supported by
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`those findings." Pannu v. Iolab Corp., 155 F.3d 1344, 1348 (Fed. Cir. 1998) (alterations in
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`original). '"Substantial' evidence is such relevant evidence from the record taken as a whole as
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`might be accepted by a reasonable mind as adequate to support the finding under review."
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`Perkin-Elmer Corp. v. Computervision Corp. , 732 F.2d 888, 893 (Fed. Cir. 1984).
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`In assessing the sufficiency of the evidence, the court must give the non-moving party,
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`"as [the] verdict winner, the benefit of all logical inferences that could be drawn from the
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`evidence presented, resolve all conflicts in the evidence in his favor and, in general, view the
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`record in the light most favorable to him." Williamson v. Consol. Rail Corp., 926 F.2d 1344,
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`1348 (3d Cir. 1991 ). The court may "not determine the credibility of the witnesses [nor]
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`substitute its choice for that of the jury between conflicting elements in the evidence." Perkin(cid:173)
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`Elmer, 732 F.2d at 893 . Rather, the court must determine whether the evidence supports the
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`jury' s verdict. See Dawn Equip. Co. v. Ky. Farms Inc., 140 F.3d 1009, 1014 (Fed. Cir. 1998);
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`Gomez v. Allegheny Health Servs. Inc., 71 F.3d 1079, 1083 (3d Cir. 1995) (describing standard
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`as "whether there is evidence upon which a reasonable jury could properly have found its
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`verdict"); 9B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2524
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`(3d ed. 2008) ("The question is not whether there is literally no evidence supporting the party
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`against whom the motion is directed but whether there is evidence upon which the jury might
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`reasonably find a verdict for that party.").
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`Where the moving party bears the burden of proof, the Third Circuit applies a different
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`standard. This standard "requires the judge to test the body of evidence not for its insufficiency
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`5
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`to support a finding, but rather for its overwhelming effect." Fireman 's Fund Ins. Co. v.
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`Videfreeze Corp. , 540 F.2d 1171 , 1177 (3d Cir. 1976) (quoting Mihalchak v. Am. Dredging Co.,
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`266 F.2d 875, 877 (3d Cir. 1959)). The court "must be able to say not only that there is
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`sufficient evidence to support the finding, even though other evidence could support as well a
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`contrary finding, but additionally that there is insufficient evidence for permitting any different
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`finding. " Id. at 1171 (quoting Mihalchak, 266 F.2d at 877).
`
`B. New Trial
`
`Federal Rule of Civil Procedure 59(a)(l)(A) provides, in pertinent part: "The court may,
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`on motion, grant a new trial on all or some of the issues- and to any party-
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`... after a jury trial,
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`for any reason for which a new trial has heretofore been granted in an action at law in federal
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`court . .. . " Among the most common reasons for granting a new trial are: (1) the jury's verdict
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`is against the clear weight of the evidence, and a new trial must be granted to prevent a
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`miscarriage of justice; (2) newly discovered evidence exists that would likely alter the outcome
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`of the trial; (3) improper conduct by an attorney or the court unfairly influenced the verdict; or
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`(4) the jury's verdict was facially inconsistent. See Zarow-Smith v. N J Transit Rail Operations,
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`Inc., 953 F. Supp. 581 , 584-85 (D.N.J. 1997).
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`The decision to grant or deny a new trial is committed to the sound discretion of the
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`district court. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980); Olefins Trading,
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`Inc. v. Han Yang Chem. Corp., 9 F.3d 282, 289 (3d Cir. 1993) (reviewing district court' s grant or
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`denial of new trial motion under the "abuse of discretion" standard). Although the standard for
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`granting a new trial is less rigorous than the standard for granting judgment as a matter of law(cid:173)
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`in that the court need not view the evidence in the light most favorable to the verdict winner-a
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`new trial should only be granted where "a miscarriage of justice would result if the verdict were
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`6
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`to stand," the verdict "cries out to be overturned," or where the verdict "shocks [the]
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`conscience." Williamson , 926 F.2d at 1352-53.
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`III.
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`ANALYSIS
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`A. Defendant 's Motion for Judgment as a Matter of Law
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`1. Infringement
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`A patent is infringed when a person " without authority makes, uses, offers to sell, or sells
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`any patented invention, within the United States .. . during the term of the patent .... " 35 U.S .C.
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`§ 271(a). A two-step analysis is employed in making an infringement determination. See
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`Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en bane), ajf'd, 517
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`U.S . 370 (1996). First, the court must construe the asserted claims to ascertain their meaning and
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`scope. See id. The trier of fact must then compare the properly construed claims with the accused
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`infringing product. See id. at 976. This second step is a question of fact. See Bai v. L & L Wings,
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`Inc. , 160 F.3d 1350, 1353 (Fed. Cir. 1998).
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`"Literal infringement of a claim exists when every limitation recited in the claim is found
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`in the accused device. " Kahn v. Gen. Motors Corp., 135 F.3d 1472, 1477 (Fed. Cir. 1998). " If any
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`claim limitation is absent from the accused device, there is no literal infringement as a matter of
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`law." Bayer AG v. Elan Pharm. Research Corp. , 212 F.3d 1241, 1247 (Fed. Cir. 2000).
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`When an accused infringer moves for JMOL of noninfringement, such relief may be
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`granted only if at least one limitation of the claim in question does not read on an element of the
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`accused product. Bayer, 212 F.3d at 1247. I must give deference to the jury ' s factual findings and
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`view the record in the light most favorable to the non-moving party, Plaintiff. Williamson , 926
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`F.3d at 1348.
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`Defendant argues that JMOL of noninfringement is appropriate because (1) there is
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`insufficient evidence to support a finding that the Accused Products satisfy the "transmitting or
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`7
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`receiving a message" limitations, (2) there is insufficient evidence to support a finding that the
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`Accused Products satisfy the "determining" limitations, and (3) there is insufficient evidence to
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`support a finding that the Accused Products satisfy the first " allocating" limitation. (DJ. 1215 at
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`1-2). Plaintiff asserts that it presented substantial evidence supporting the jury' s infringement
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`verdict. (DJ. 1226 at 1). I agree with Plaintiff.
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`1.
`
`The "Transmitting or Receiving a Message" Limitations
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`Substantial evidence supports the jury' s verdict that Defendant's CPE infringes the
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`"transmitting or receiving a message during initialization specifying a maximum number of bytes
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`of memory that are available to be allocated [to an interleaver or a deinterleaver]" limitations of
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`the asserted claims. Defendant argues that Plaintiff failed to carry its burden because (1)
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`max_delay_octet in the VDSL2 standard refers to delay rather than memory, (2)
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`max_delay_octet refers to a minimum amount of memory if it refers to memory at all, and (3)
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`Plaintiff's expert improperly focused on the amount of memory actually being used, rather than
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`the amount "available to be allocated." (DJ. 1215 at 5-8).
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`First, substantial evidence supports a finding that max_ delay_ octet in the VDSL2
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`standard specifies an amount of memory. Defendant argues, "Under the VDSL2 standard itself,
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`max_ delay_ octet does not specify ' a maximum number of bytes of memory that are available to
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`be allocated' to an interleaver or a deinterleaver. Rather, max_delay_octet specifies the
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`maximum end-to-end delay on a particular latency path." (Id. at 5). Plaintiff's expert, Dr.
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`Cooklev, testified that the max_delay_octet field specifies memory, not "delay."
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`(Tr. at 300:7-
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`25). He supported this opinion by explaining that the max_ delay_ octet field is an amount of
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`memory in bytes. (Id.) . Bytes are a unit of memory, not delay. (Id.) . Dr. Cooklev' s conclusion
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`was corroborated by the testimony of Dr. Almeroth, Plaintiff's source code expert, who also
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`8
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`explained that max_delay_octet is expressed in bytes. (Tr. at 466:18-25). Plaintiffs experts'
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`testimony on the character of the information communicated in the max_ delay_ octet field is
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`sufficient evidence to support a jury finding that max_ delay_ octet specifies an amount of
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`memory.
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`Second, substantial evidence supports a finding that max_ delay_ octet refers to a
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`maximum amount of memory. Defendant argues that max_delay_octet relates to the minimum,
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`rather than the maximum, amount of memory that a transceiver must provide. (D.I. 1215 at 6).
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`Plaintiff responds that Dr. Cooklev testified that max_ delay_ octet is a maximum amount of
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`available memory based on (1) his understanding of the VDSL2 standard, (2) his testing of the
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`Accused Products, and (3) the opinion of Dr. Almeroth. (D.I. 1226 at 7). Based on his
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`understanding of the VDSL2 standard, Dr. Cooklev explained, "[I]t' s critically important that
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`[the amount of memory used by the central office transceiver to deinterleave] is exactly the same
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`as the amount of interleaver memory at the CPE transceiver actually being used." (Tr. at 270:2-
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`4 ). He explained that, if the CPE uses more memory for interleaving than the central office has
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`available for deinterleaving, "communication fails ." (Tr. at 270 :14-272 :10). Dr. Cooklev also
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`explained how his testing, which captured the O-PMS 1 and R-PMS 2 messages, confirmed that
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`the amount of memory allocated was never greater than the amount dictated by the
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`max_delay_octet field. (Tr. at 301 :21-306:3 (explanation of testing and results)). As a final
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`piece of support, Plaintiff notes that Dr. Almeroth testified that the O-PMS message constrains
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`the amount of memory allocated to deinterleaving in the Accused Products. (Tr. at 439:22-
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`1 The O-PMS message is sent from the central office to the CPE during initialization. (Tr. at
`196:20-23).
`2 The CPE transits the R-PMS message to the central office in response to the O-PMS message.
`(Tr. at 279: 1-8).
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`9
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`440:2). The combination of Dr. Cooklev's testimony on the operation of the Accused Products
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`and Dr. Almeroth' s testimony on the functionality of the code in the products provides
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`substantial evidence to support a finding that the max_ delay_ octet specifies a maximum amount
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`of memory.
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`Third, Dr. Cooklev' s testimony provides substantial evidence that the "transmitting or
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`receiving a message" claim limitation is met in the Accused Products. In its reply brief,
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`Defendant's primary contention is that Plaintiff failed to prove that the Accused Products meet
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`the "available to be allocated" portion of the limitation. (D.I. 1230 at 2-5). Specifically, it
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`argues the Dr. Cooklev improperly focused his analysis on the memory "actually being used" by
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`the Accused Products. (Id.) . That is, Defendant argues that Dr. Cooklev proved not how much
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`memory is "available to be allocated," but, rather, how much memory the Accused Products use
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`during operation. Defendant proposes that the claim term "available to be allocated" must mean
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`something different than "actually being used." (Id.) . "Available to be allocated," under
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`Defendant's understanding, necessarily refers to the amount of memory present in the Accused
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`Products, rather than some subset of that memory. (See id.).
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`Defendant's argument comes too late. " [L]itigants waive their right to present new claim
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`construction disputes if they are raised for the first time after trial." Conoco, Inc. v. Energy &
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`Envtl. Int '/, LC , 460 F.3d 1349, 1359 (Fed. Cir. 2006). Defendant did not propose a
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`construction for "available to be allocated" at or before trial on these patents. I will not now
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`construe the term. I note, however, that a "message" communicating to the Accused Products a
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`"maximum number of bytes of memory that are available to be allocated" is not, by the plain
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`language of the claim, necessarily referring to the total amount of memory actually available in
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`the Accused Product. The term may well be referring to an instruction, given to the Accused
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`10
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`Product by the central office, telling the Accused Product how much of the its memory may be
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`used for interleaving or deinterleaving at that time. By way of analogy, let's say that I bake two
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`dozen cookies and I tell my daughter, "You may have two cookies today." Although there are
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`more cookies available in the house that could have been allocated to my daughter, the maximum
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`number she has available to allocate over the course of the day is two. I see no reason why such
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`an understanding of "available to be allocated" is inconsistent with the language of the claim.
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`Thus, I find that Plaintiff provided substantial evidence on which a jury could rely to find
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`that the Accused Products meet the "transmitting or receiving a message during initialization
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`specifying a maximum number of bytes of memory that are available to be allocated [ to an
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`interleaver or a deinterleaver ]" limitations of the asserted claims.
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`11.
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`The "Determining" Limitations
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`Substantial evidence supports the jury' s verdict that Defendant's CPE meets the
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`"determining an amount of memory required by the [ deinterleaver to deinterleave or interleaver
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`to interleave] a first plurality of Reed Solomon (RS) coded data bytes within a shared memory"
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`limitations of the claims. The Parties do not dispute that the accused devices determine an
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`amount of memory. (See D.I. 1230 at 7 (arguing that the way the Accused Products "determine"
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`the amount of memory required is different than Plaintiffs theory)). They merely dispute
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`whether the products determine an amount of memory according to the theory proposed by
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`Plaintiff.
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`Plaintiff provided substantial evidence from which a jury could find that the Accused
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`Products meet the "determining" limitations. Dr. Cooklev testified that Defendant's CPE
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`determines an amount of memory via the formula (J-l)*(D-1)/2. 3 (Tr. at 313:3-320:8). His
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`3 I refers to the interleaver memory block size and D refers to the interleaver memory depth.
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`11
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`testimony was based on the VDSL2 standard, his testing, and Dr. Almeroth's source code
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`analysis. (Tr. at 313 :8-12). Dr. Cooklev' s testimony on the VDSL2 standard, with which the
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`Parties agree the Accused Products comply, was that the standard specifies that the amount of
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`interleaver or deinterleaver memory is calculated using the (J-1 )*(D-1 )/2 formula. (Tr. at 240:6-
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`12). His testimony on the results of his testing was that the R-PMS message contains the
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`interleaver block size and depth parameters. (D.I. 314:9-315 :3). This, he explained, "indicat[ es]
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`that the modem actually determined these parameters and determined an amount of memory
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`required by the deinterleaver." (Tr. at 315: 1-3). Together, this testimony provides substantial
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`evidence to support the jury' s finding that the Accused Products meet the "determining" claim
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`element.
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`Defendant makes much of the testimony of Broadcom employee, Dr. Gong-San Yu.
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`(D.I. 1215 at 9-11). Dr. Yu' s testimony was that the Broadcom chips at issue in this case use a
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`lengthier equation to determine the amount of memory required. (See Tr. at 717:17-23 (Dr. Yu
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`stating, as to the BCM6091 chip, "The formula is ... two times L (times K plus (I minus one)
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`times (D minus one).")). As an initial matter, the jury was not obligated to credit the testimony
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`of Dr. Yu. Further, Dr. Cooklev and Dr. Almeroth testified that the formula described by Dr. Yu
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`factors in "peripheral memory" that is not interleaver or deinterleaver memory. (Tr. at 399:20-
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`401 :9; 472:4-11). There was significant testimony during trial directed to establishing that
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`"peripheral memory" is distinct from interleaver or deinterlever memory. (See, e. g. , Tr. at 306:4-
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`307:25 ; 683:1-684:22). That testimony, from multiple witnesses, provides substantial evidence
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`for a jury finding that the extra variables described by Dr. Yu are not relevant to the
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`"determining" limitation. 4
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`I find that Plaintiff presented substantial evidence on which the jury could base its finding
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`that the Accused Products meet the claims' "determining" limitations.
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`111.
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`The First "Allocating" Limitations
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`Defendant's final argument for JMOL of noninfringement is that Plaintiff failed to
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`provide substantial evidence that the Accused Products meet the "the allocated memory for the
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`deinterleaver [or interleaver] does not exceed the maximum number of bytes specified in the
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`message" limitations. (D .I. 1215 at 11-14)
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`Defendant's argument is, once again, a too late claim construction position. It is the
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`moving party's burden to show "that it has the only reasonable view of the claim element as long
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`as it is un-construed." Avid Tech. , Inc. v. Harmonic, Inc., 812 F.3d 1040, 1048 (Fed. Cir. 2016).
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`Defendant argues, "the asserted claims require looking to the allocated ' memory,' not just
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`' interleaver memory' or ' deinterleaver memory' -terms that the asserted claims do not even
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`use." (D.I. 1215 at 13). Plaintiff responds, "2Wire's argument is rooted in the incorrect
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`assumption that the memory referred to in the asserted claims is all memory rather than the
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`interleaver/deinterleaver memory itself." (D .I. 1226 at 15). While I express no opinion on
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`whether Defendant's assumption is incorrect, I agree that Defendant's assumption is not clearly
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`the only correct understanding of the claim term.
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`4 I also note that it is not clear from the briefing why it makes a difference whether Plaintiff s or
`Defendant's proposed formula for the determining step is correct. It seems to me that,
`regardless, Plaintiff established that the accused products determine the amount of memory
`required by the interleaver or deinterleaver for interleaving or deinterleaving. As there is no
`briefing on the implications of Plaintiff proving the wrong theory while Defendant proved the
`right one, I do not see how I could grant JMOL based on this theory in any case.
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`Dr. Cooklev' s understanding of the plain and ordinary meaning of the term is, apparently,
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`that "allocated memory" refers only to the memory used to store Reed-Solomon coded
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`information. (Id. at 16). His understanding is not unreasonable in view of the claims' plain
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`language. Thus, as I am not persuaded that Defendant has the only reasonable understanding of
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`the claims, Plaintiffs evidence that any "extra" memory is merely "peripheral" and not to be
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`considered part of the interleaver/deinterleaver memory is sufficient to support the verdict.
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`2. Obviousness
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`A party must prove obviousness by clear and convincing evidence. Procter & Gamble Co.
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`v. Teva Pharm. USA, Inc. , 566 F.3d 989, 994 (Fed. Cir. 2009). Because obviousness, "like any
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`other ground of invalidity, must be established by clear and convincing evidence," Defendant' s
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`burden on a JMOL motion is "doubly high: it must show that no reasonable jury could have failed
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`to conclude that [Defendant' s] case had been established by clear and convincing evidence."
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`Boehringer Ingelheim Vetmedica, Inc. v. Schering -Plough Corp., 320 F.3d 1339, 1353 (Fed. Cir.
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`2003) (internal citation omitted).
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`Defendant has not shown that "no reasonable jury could have failed to conclude that
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`[obviousness] had been established by clear and convincing evidence. " Id. "Obviousness is a
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`question of law based on underlying questions of fact. " Green Edge Enterprises, LLC v. Rubber
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`Mulch Etc., LLC, 620 F.3d 1287, 1298 (Fed. Cir. 2010) . On JMOL, I must defer to the jury' s
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`underlying factual determinations, Williamson, 926 F.3d at 1348, but review the legal question
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`de novo. Pannu, 155 F.3d at 1348.
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`1.
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`LB-031 as Understood by a POSIT A
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`A reasonable jury could have failed to conclude that Defendant established obviousness
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`by clear and convincing evidence via the combination of LB-031 with the knowledge of a POSA.
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`There is no real dispute that LB-031 contains all the elements of the claims except shared
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`memory. (See Tr. at 741:5-742:2). The Parties agree that LB-031 is silent on memory type.
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`(D.I. 1215 at 15; D.I. 1226 at 17). There is also no dispute that prior to the date of invention
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`there were two types of memory: shared and dedicated. (See Tr. at 760:4-11 ).
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`The Parties presented competing testimony on the compatibility of LB-031 with shared
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`memory. Dr. Jacobsen, Defendant's technical expert, testified that, as there were only two
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`memory options, "a person having ordinary skill reading [LB-031] would have understood it to
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`apply to either kind of implementation." (Tr. at 630:8-10). She further testified to discussions at
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`the International Telecommunications Union about using LB-031 with shared memory. (Tr. at
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`630:11-18). Dr. Cooklev rebutted Dr. Jacobsen's conclusion, explaining that LB-031 's
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`messaging scheme isn't compatible with shared memory. (Tr. at 742:8-744: 17).
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`As the jury was not obligated to credit Dr. Jacobsen's conclusions and there was
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`competing testimony explaining why LB-031 is incompatible with shared memory, a jury could
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`have reasonably failed to conclude that Defendant established obviousness. There was a basis
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`for a jury to conclude a POSA did not have a motivation to combine LB-031 with shared
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`memory. I will not grant JMOL of obviousness based on this combination.
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`11.
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`LB-031 and Mazzoni
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`A reasonable jury could have failed to conclude that Defendant established obviousness
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`by clear and convincing evidence via the combination of LB-031 with Mazzoni. The Parties
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`agree that the Mazzoni reference discloses shared memory.
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`Dr. Jacobsen testified that a POSA would have had a motivation to combine Mazzoni
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`with LB-031 because both were "aimed at solving the exact same problem in the exact same type
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`of environment." (Tr. at 647:4-5). The problem she says they were trying to solve was managing
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`the size and complexity of the interleaver. (Tr. at 646:19-647:5). She admitted, however, that
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`the combination would not work if just "bolted" together. (Tr. at 646:4-12). Rather, for a
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`combination of LB-031 and Mazzoni to work, a POSA would have to add more memory. (Tr. at
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`676:12-24). Adding more memory is a solution Dr. Jacobsen agreed was contrary to her
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`proposed motivation to combine. (Tr. at 677: 13-22). Dr. Cooklev, on the other hand, expressed
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`the opinion that a combination of LB-031 and Mazzoni would be inoperable due to the memory
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`capability problem. (Tr. at 745:12-747:6).
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`As the jury was not obligated to credit Dr. Jacobsen' s conclusions and there was
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`competing testimony suggesting that a POSA would not have been motivated to combine LB-
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`031 with Mazzoni, a jury could have reasonably failed to conclude that Defendant established
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`obviousness. There was a basis for a jury to conclude a POSA did not have a motivation to
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`combine the references. Thus, I will not grant JMOL of obviousness based on this combination.
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`B. Defendant 's Request for a New Trial
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`Defendant dedicates less than two pages of its opening brief to its request for new trial.
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`(D.I. 19-20). Its arguments are identical to those made in its request for JMOL. (Id.) . Even
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`without being required to evaluate the evidence in the light most favorable to Plaintiff, I find that
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`the jury's infringement and invalidity verdicts were not against the clear weight of the evidence
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`for the same reasons stated above. Thus, I will deny Defendant's request for a new trial.
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`IV.
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`CONCLUSION
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`For the foregoing reasons, I deny Defendant' s Motion for JMOL or a new trial as to
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`infringement and invalidity. An accompanying order will be entered.
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