Case 2:12-cv-00600-JRG Document 340 Filed 04/03/14 Page 1 of 16 PageID #: 8538
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`WI-LAN INC.,
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`Plaintiff,
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`v.
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`HTC CORP., et al.,
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`Defendants.
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` CASE NO. 2:11-CV-68-JRG
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` LEAD CASE
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` CASE NO. 2:12-CV-600-JRG
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` Member Case
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`§§§§§§§§§§
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`§§§§§§§§§§
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`WI-LAN INC.,
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`v.
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`APPLE INC., et al.,
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`Plaintiff,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`I.
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`INTRODUCTION
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`Before the Court is Wi-LAN Inc.’s (“Wi-LAN”) Motion for Judgment as a Matter of Law
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`Under FRCP 50(b) or, in the Alternative, Motion for a New Trial Under FRCP 59 (Dkt. No. 635).
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`In it, Wi-LAN moves the Court to overturn the jury’s verdict and find the asserted patent to be
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`valid and to find that Apple Inc. (“Apple”) infringes both of the asserted claims as a matter of law.
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`Wi-LAN filed this patent infringement action against Apple Inc. (“Apple”) on February 2,
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`2011, accusing the iPhone and iPad devices of infringing claims 1 and 10 of U.S. Patent No.
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`RE37,802 (“the ’802 patent”) by using certain industry standards in the field of wireless
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`1
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`Case 2:12-cv-00600-JRG Document 340 Filed 04/03/14 Page 2 of 16 PageID #: 8539
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`technology. The Court held a seven-day jury trial beginning on October 15, 2013. The jury
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`returned a unanimous verdict on October 23, 2013 finding that Apple does not infringe and that
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`claims 1 and 10 of the ’802 patent are invalid. (See Jury Verdict, Dkt. No. 627.)
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`II. APPLICABLE LAW REGARDING RULE 50
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`Judgment as a matter of law is only appropriate when “a reasonable jury would not have a
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`legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a). “The
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`grant or denial of a motion for judgment as a matter of law is a procedural issue not unique to
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`patent law, reviewed under the law of the regional circuit in which the appeal from the district
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`court would usually lie.” Finisar Corp. v. DirectTV Group, Inc., 523 F.3d 1323, 1332 (Fed. Cir.
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`2008). The Fifth Circuit “uses the same standard to review the verdict that the district court used in
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`first passing on the motion.” Hiltgen v. Sumrall, 47 F.3d 695, 699 (5th Cir. 1995). Thus, a jury
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`verdict must be upheld, and judgment as a matter of law may not be granted, unless “there is no
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`legally sufficient evidentiary basis for a reasonable jury to find as the jury did.” Id. at 700. The
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`jury’s verdict must be supported by “substantial evidence” in support of each element of the
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`claims. Am. Home Assurance Co. v. United Space Alliance, 378 F.3d 482, 487 (5th Cir. 2004).
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`A court reviews all evidence in the record and must draw all reasonable inferences in favor
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`of the nonmoving party; however, a court may not make credibility determinations or weigh the
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`evidence, as those are solely functions of the jury. See Reeves v. Sanderson Plumbing Prods., Inc.,
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`530 U.S. 133, 150-51 (2000). The moving party is entitled to judgment as a matter of law “only if
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`the evidence points so strongly and so overwhelmingly in favor of the nonmoving party that no
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`reasonable juror could return a contrary verdict.” Int’l Ins. Co. v. RSR Corp., 426 F.3d 281, 296
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`(5th Cir. 2005).
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`2
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`Case 2:12-cv-00600-JRG Document 340 Filed 04/03/14 Page 3 of 16 PageID #: 8540
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`III. APPLICABLE LAW REGARDING RULE 59
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`Under Rule 59(a) of the Federal Rules of Civil Procedure, a new trial can be granted to any
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`party to a jury trial on any or all issues “for any reason for which a new trial has heretofore been
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`granted in an action at law in federal court.” Fed. R. Civ. P. 59(a). “A new trial may be granted, for
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`example, if the district court finds the verdict is against the weight of the evidence, the damages
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`awarded are excessive, the trial was unfair, or prejudicial error was committed in its course.” Smith
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`v. Transworld Drilling Co., 773 F.2d 610, 612-13 (5th Cir. 1985). The Court must view the
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`evidence “in a light most favorable to the jury’s verdict, and [] the verdict must be affirmed unless
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`the evidence points so strongly and overwhelmingly in favor of one party that the court believes
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`that reasonable persons could not arrive at a contrary conclusion.” Dawson v. Wal-Mart Stores,
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`Inc., 978 F.2d 205, 208 (5th Cir. 1992).
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`IV.
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`JUDGMENT OF INVALIDITY
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`Wi-LAN’s motion for judgment as a matter of law of no invalidity focuses on a specific
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`means-plus-function claim limitation present in claims 1 and 10 of the ’802 patent. The element at
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`issue is: “first computing means for operating on the plural sets of N data symbols to produce
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`modulated data symbols corresponding to an invertible randomized spreading of the first stream of
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`data symbols.”1 Pursuant to the parties’ agreement during the Markman hearing, the Court
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`adopted the following function and corresponding structure.
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`Function: “operating on the plural sets
`of N data symbols to produce
`modulated data symbols corresponding
`to an invertible randomized spreading
`of the first stream of data symbols”
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`Corresponding Structure: “element 12
`of Figures 1 and 4, columns 2:6-10,
`2:36-40, 2:58-62, 4:2-12 and 4:35-44,
`and equivalents thereof”
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`1
`The parties both refer to both the means-plus-function limitations in the second element of claims 1 and 10 as
`“first computing means” in addressing this issue.
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`3
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`Case 2:12-cv-00600-JRG Document 340 Filed 04/03/14 Page 4 of 16 PageID #: 8541
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`(See Claim Construction Order, Dkt. No. 302.)
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`In this motion, the parties dispute two distinct issues.
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`First, Wi-LAN generally contends that Apple presented insufficient evidence that the
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`structure as construed by the Court exists in the prior art. Wi-LAN asserts that Apple’s expert
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`witness, Dr. Acampora, only performed half of the invalidity analysis in opining that this
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`means-plus-function element was disclosed by the prior art because he only found the “invertible
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`randomized spreading” function to be met, but omitted any discussion of a structural comparison.
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`Wi-LAN argues that a purely functional analysis of a means-plus-function limitation is
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`insufficient to establish invalidity as a matter of law. In response, Apple asserts that both a
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`functional and structural comparison was conducted during trial. Apple identified two instances
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`during Dr. Acampora’s testimony where he demonstrated to the jury that the spread spectrum
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`modulator structures (or its equivalents) were present in the Sasaki and Gilhousen prior art such
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`that it satisfies the corresponding structure in the Court’s claim construction.
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`Second, Wi-LAN asserts that a complex multiplier is a necessary part of the required
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`structure of the “first computing means” element and any invalidity analysis is fatally incomplete
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`if the prior art references do not disclose a complex multiplier. Apple disagrees, pointing out that
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`the Court’s construction does not specifically identify a complex multiplier as a corresponding
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`structure. Therefore, this question turns on whether a complex multiplier is a necessary part of the
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`structure corresponding to the “first computing means.” If a complex multiplier is a required
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`component, then the jury’s invalidity verdict cannot survive because it is undisputed that no
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`evidence was presented to the jury showing that a complex multiplier existed in the prior art.
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`4
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`Case 2:12-cv-00600-JRG Document 340 Filed 04/03/14 Page 5 of 16 PageID #: 8542
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`i.
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`Apple presented sufficient evidence of corresponding structure
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`The Court first evaluates whether Apple conducted a structural analysis of the
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`means-plus-function element. In other words, whether Apple presented sufficient evidence that the
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`prior art disclosed element 12 of Figures 1 and 4 or equivalents thereof—the corresponding
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`structure as identified by the Court for the term “first computing means.”
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`It is well-settled law that to prove anticipation of a means-plus-function limitation, a
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`functional analysis alone will not suffice; the invalidity proponent must prove that the prior art
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`discloses both the identical function and the particular corresponding structure that performs the
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`function, or an equivalent thereof.2 Fresenius USA, Inc. v. Baxter Intern., Inc., 582 F.3d 1288,
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`1299 (Fed. Cir. 2009). “Just as a patentee who seeks to prove infringement must provide a
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`structural analysis by demonstrating that the accused device has the identified corresponding
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`structure or an equivalent structure, a challenger who seeks
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`to demonstrate
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`that a
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`means-plus-function limitation was present in the prior art must prove that the corresponding
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`structure—or an equivalent—was present in the prior art.” Id. (citing In re Donaldson Co., 16 F.3d
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`1339, 1361 (Fed. Cir. 1994)).
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`Apple points to three instances in the record where Dr. Acampora explained that the
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`“spread spectrum modulators” structures performed the “first computing means” in the Sasaki and
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`Gilhousen references. (10/21/2013 PM Tr. at 102:21-103:11, 106:23-107:3, 116:25-117:25). From
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`a reading of the trial transcript, Dr. Acampora was not specifically asked to compare the “element
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`12 of Figures 1 and 4” structure to the Sasaki and Gilhousen prior art. However, the jury had the
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`benefit of visual aids in the courtroom that was not captured by the written record. During his
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`direct testimony on anticipation, Dr. Acampora referenced a slide presentation that clearly showed
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`2
`Apple only put forth an invalidity case based on anticipation.
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`Case 2:12-cv-00600-JRG Document 340 Filed 04/03/14 Page 6 of 16 PageID #: 8543
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`element 12 of Figure 1 from the ’802 patent (the corresponding structure) in a side-by-side
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`comparison with images from both the Sasaki and Gilhousen prior art references. As a result, the
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`record establishes that Dr. Acampora conducted both a functional and structural analysis of the
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`means-plus-function element to find that the prior art reference is met.
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`In addition, a claim chart showing the Court’s construction and a copy of the ’802 patent
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`was provided to each juror in their juror notebooks. The Court’s charge specifically referred to
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`those documents in instructing the jury on how to evaluate the means-plus-function claims:
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`I will now instruct you about the meaning of the
`means-plus-function claim requirement. Remember that the Court’s
`claim chart tells you the function that is performed and the structure
`disclosed in the ’802 patent specification that corresponds to that function.
`To establish literal infringement of a claim that includes
`means-plus-function requirements, Wi-LAN must prove two things:
`1.
`the relevant structure in the accused device performs the identical
`function I identified in the claim construction chart found in your juror
`notebook, and
`2.
`the accused device employs a structure identical or equivalent to the
`structure described in the patent.
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`(10/23/2013 AM Tr. at 42:21-43:10). Therefore, between the use of the visual presentation
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`during Dr. Acampora’s testimony and the Court’s final instructions to the jury, the Court finds that
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`Apple presented sufficient evidence that “element 12 of Figures 1 and 4,” the corresponding
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`structure of the “first computing means,” was disclosed by the prior art.
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`ii.
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`Complex multiplier is a required structure of “first computing means”
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`The Court next evaluates whether a complex multiplier is a required structure for “first
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`computing means” based on the Court’s construction. Apple points out that the Court’s
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`construction does not explicitly identify a complex multiplier as a structure corresponding to the
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`means-plus-function term. The complex multiplier was disclosed in Figure 8 of the ’802 patent and
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`the Court found the corresponding structure of “first computing means” to be “element 12 of
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`Case 2:12-cv-00600-JRG Document 340 Filed 04/03/14 Page 7 of 16 PageID #: 8544
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`Figures 1 and 4, columns 2:6-10, 2:36-40, 2:58-62, 4:2-12 and 4:35-44, and equivalents thereof.”
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`Figure 8 was not included. Nevertheless, Wi-LAN argues that throughout the trial, both sides took
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`the position that the complex multiplier found in Figure 8 was necessarily included in the Court’s
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`construction. As support for this argument, Wi-LAN relies on the direct examination testimony of
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`Apple’s expert witness, Dr. Acampora.
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`Q.
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`Okay. How many multipliers would be in the patent?
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`Okay. So in the patent, we would have -- each of these would need
`A.
`to be a complex multiplier to perform invertible randomized spreading. This is one
`of the structures that the Court identified as being that which corresponds to
`the first computing means.
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`(10/21/2013 PM Tr. at 91:8-14). Further, Dr. Acampora agreed that the complex multiplier
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`in Figure 8 is a part of the transforms that are in Figures 4 and 1, the Court-identified
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`corresponding structure for the “first computing means.”
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`Q. Along with the randomizer transform. Those transform -- the
`randomizer transform in Figure 8 is part of the transforms that are in Figure
`4 and Figure 1 of the patent, correct?
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`A.
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`Q.
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`A.
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`That is correct.
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`Okay. Now, randomizing transform is a complex randomizer, right?
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`It is.
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`The one in Figure 8 of the patent is a -- well, we call it sometimes a
`Q.
`complex multiplier, right?
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`A.
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`That’s correct.
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`****
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`Sir, when you were up here and sketching out on these drawings,
`Q.
`didn’t you tell the jury -- I wrote it down. You said that the randomizer transform is
`part of the Figure 1 first computing means.
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`A.
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`Yes.
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`7
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`Case 2:12-cv-00600-JRG Document 340 Filed 04/03/14 Page 8 of 16 PageID #: 8545
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`And you said the randomizer transform is part of the Figure 4 first
`Q.
`computing means.
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`A.
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`Yes.
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`And Sasaki does not use a randomizer transform of the type
`Q.
`described in the ’802 patent, Figure 8, does it?
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`A.
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`That’s correct.
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`There’s only one randomizer transform in the ’802 patent that’s
`Q.
`described, correct?
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`There’s only one described. It’s Figure 8, which shows a bunch of
`A.
`complex multipliers.
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`(Id. at 139:12-22, 195:12-196:2). Dr. Acampora’s opinion is also consistent with the
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`testimony from Wi-LAN’s expert witness, Dr. Orsak.
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`And it’s your opinion that the computing means of Claim 1 as
`Q.
`described in Figure 1 requires Figures 3 and 8, correct?
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`Those codes are specifically from Figure 3. That is correct. And
`A.
`Figure 3 must produce codes that spread and randomize in this case, and the only
`transform that performs randomization provided by the inventors is the randomizer
`transform, which is, as we just talked about, in Figure 8.
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`(Cross-examination 10/16/2013 AM Tr. at 91:12-20; see also direct examination of Dr.
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`Orsak, 10/15/2013 PM Tr. at 34:2-37:21 (sealed)). Consequently, although the Court’s
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`identification of the structure for “first computing means” does not specifically provide for a
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`complex multiplier component, that does not mean a complex multiplier can never be a necessary
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`component of the structure. Parties in patent cases often retain expert witnesses to explain and
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`provide context to the claimed invention in a manner consistent with the Court’s constructions.
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`That is exactly what happened here. The record reveals the expert witnesses from both sides
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`agreed that complex multipliers are a part of the structure of “first computing means” as taught by
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`8
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`Case 2:12-cv-00600-JRG Document 340 Filed 04/03/14 Page 9 of 16 PageID #: 8546
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`the ’802 patent. Apple has not shown in its post-verdict briefing that its own expert’s trial
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`testimony was inconsistent with the Court’s interpretation.
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`Each patent claim is presumed to be valid and as the party asserting invalidity, Apple was
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`required to prove invalidity by clear and convincing evidence. 35 U.S. C. § 282; Fresenius, 582
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`F.3d at 1294-1295. Apple’s expert clearly testified that the complex multiplier shown in Figure 8 is
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`a necessary part of the corresponding structure for “first computing means,” yet he failed to
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`identify how this structure was disclosed by the prior art. As it is undisputed that no evidence was
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`presented of complex multipliers in the prior art, Apple’s evidentiary burden of proof cannot be
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`carried. The Court is unable to find that the jury’s finding as to invalidity of claims 1 and 10 of the
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`’802 patent is supported by substantial evidence. Accordingly, the jury’s invalidity verdict cannot
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`stand.
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`V.
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`JUDGMENT OF NON-INFRINGEMENT
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`Wi-LAN makes two arguments to show that it is entitled to a judgment of infringement as
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`a matter of law. Both arguments are premised on Apple’s allegedly contradictory application of
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`terms that have already been construed by the Court. Wi-LAN first contends that Apple
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`improperly argued that “even” separation of the input “first data stream” is required at the output
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`of the “converter” element in claims 1 and 10, which contradicts the Court’s construction of the
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`term “converter.” Wi-LAN’s second argument relates to its non-infringement defenses for the
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`“first computing means” and “means to combine.” Wi-LAN contends that Apple’s requirement
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`that the “modulated data symbols” must be spread and randomized before being combined
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`contradicts the Court’s claim construction, which does not specify such an order of operations.
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`Case 2:12-cv-00600-JRG Document 340 Filed 04/03/14 Page 10 of 16 PageID #: 8547
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`i.
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`Even separation
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`The first dispute centers on whether Apple properly applied the Court’s claim construction
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`to the “converter” element in setting forth its non-infringement position before the jury. The Court
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`has construed the term “converting [the / a] first stream of data symbols into plural sets of N data
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`symbols each” to mean “separating the first data stream into multiple groups of data symbols such
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`that each group has N data symbols.” In reaching this construction, the Court explained that it
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`“reject[ed] Defendants’ proposal that each group must be separated into N individual data
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`symbols.” (Dkt. No. 302 at 32.) From that statement, Wi-LAN contends the Court explicitly
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`rejected Apple’s “even separation” argument such that the groups of N input data symbols entering
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`the converter need not be evenly separated into N individual data symbols at the output of the
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`converter. However, Wi-LAN continues, Apple disregarded the Court’s construction during trial
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`by asserting that even separation was a necessary requirement to find infringement. According to
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`Wi-LAN, Dr. Acampora (Apple’s expert) inappropriately imported this additional limitation to the
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`“converting…” term that required the number of streams coming out of the converter to equal the
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`number of data symbols in each group.
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`In response, Apple contends that it never relied on an “equal data streams” limitations for
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`its non-infringement position. Rather, Apple argues that Dr. Acampora’s testimony made clear the
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`reason the products do not meet the converting limitation is because they do not meet the “even
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`separation” requirement. Apple maintains that the “even separation” requirement is consistent
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`with the Court’s construction because the Markman Order went on to explain that “the disputed
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`term should be construed to clarify and explain that the stream of data symbols is separated into
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`10
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`Case 2:12-cv-00600-JRG Document 340 Filed 04/03/14 Page 11 of 16 PageID #: 8548
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`multiple groups and that each group has N data symbols.” (Dkt. No. 302 at 32.) The Court agrees
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`with Apple.
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`The argument that each group must be separated into N individual data symbols was
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`previously rejected by the Court. However, the Court did not reject the notion that the data must be
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`evenly separated into multiple groups of N data symbols each. Therefore, the number of groups of
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`N data symbols does not have to equal N, although each group must contain the same N number of
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`data symbols. Dr. Acampora’s testimony at trial was consistent with this construction.
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`During trial, Dr. Acampora testified that the three standards accused of infringement do not
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`meet the converter limitation because they do not perform even separation. First, he explained the
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`CDMA2000 standard has two channels, the fundamental channel and the supplemental channel.
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`The CDMA2000 standard does not have the claimed converter because “these two channels have
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`different numbers of data symbols.” (10/21/2013 PM Tr. at 68:10-19.) Dr. Acampora next
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`explained the EV-DO standard also does not do an equal split because “six symbols come in, two
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`go to the top output, four go to the bottom output.” (Id. at 73:3-20.) Dr. Acampora opines that the
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`third accused standard, the HSUPA standard, similarly operates with an unequal split and does not
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`use the claimed converter. (Id. at 75:2-76:13.) Wi-LAN has failed to persuade the Court that such
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`testimony is inconsistent with the construction of the “converter” terms.
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`ii.
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`Order of operations
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`The second dispute relates to Apple’s non-infringement defenses for the elements “first
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`computing means” and “means to combine” in asserted claims 1 and 10. Wi-LAN contends that
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`Apple’s defense was inappropriately premised on a specific order of operations such that the
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`“means to combine” must combine “modulated data symbols” that have been both spread and
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`11
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`Case 2:12-cv-00600-JRG Document 340 Filed 04/03/14 Page 12 of 16 PageID #: 8549
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`randomized before they are combined. The Court construed “modulated data symbols” to mean
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`“data symbols that have been spread by a spreading code,” which only requires spreading. (Dkt.
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`No. 302 at 45.) Therefore, according to Wi-LAN, by importing a randomization requirement into
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`the Court’s construction, Apple is attempting to resurrect an argument that was explicitly rejected
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`during claim construction.
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`Apple responds that it did not read a randomization requirement into the term “modulated
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`data symbols” during trial. Instead, Apple contends that it relied on the antecedent basis of “the
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`modulated data symbols” referenced in the “means to combine” limitation of claim 1. While not all
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`modulated data symbols within the ’802 patent need to be randomized, Apple argues that the
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`modulated data symbols that are being combined in the “means to combine” limitation requires the
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`randomization to occur. The Court agrees with Apple.
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`The entirety of claim 1 of the ’802 patent reads as follows:
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`1. A transceiver for transmitting a first stream of data symbols, the transceiver
`comprising:
`a. a converter for converting the first stream of data symbols into plural sets of
`N data symbols each;
`b. first computing means for operating on the plural sets of N data symbols to
`produce modulated data symbols corresponding to an invertible
`randomized spreading of the first stream of data symbols; and
`c. means to combine the modulated data symbols for transmission.
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`The term, “modulated data symbols,” as construed, only requires spreading and does not
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`require randomization because neither the specification nor the prosecution history contains any
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`definitive statement or disclaimer mandating that “modulated data symbols” must be randomized.
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`(Dkt. No. 302 at 44.) Therefore, any attempt by Apple to import a randomization requirement into
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`this term would be improper. However, in the Markman opinion the Court also acknowledged that
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`“randomization is a desirable feature that is addressed by other claim language, such as the term
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`Case 2:12-cv-00600-JRG Document 340 Filed 04/03/14 Page 13 of 16 PageID #: 8550
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`‘invertible randomized spreading,’ which also appears in Claim 1.” (Id. at 45.) The
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`interrelatedness of the terms within claim 1 was the reason the Court concluded that randomization
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`“should not be imported into the term ‘modulated data symbols.’” (Id.) Accordingly, Dr.
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`Acampora did not contradict the Court’s claim construction in explaining that “the modulated data
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`symbols” in the third element of claim 1 refers back to the “modulated data symbols corresponding
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`to an invertible randomized spreading,” introduced in the second element of claim 1. As a qualified
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`technical expert, Dr. Acampora was entitled to give his opinion that from his study of the language
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`in claim 1 and the Court’s constructions of certain terms, those particular modulated data symbols
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`must be spread and randomized before being combined.
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`Wi-LAN also contends that dependent claim 4 confirms that Apple’s interpretation of
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`ordering is incorrect. The Court is not persuaded by an argument on claim construction raised for
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`the first time in post-trial briefing.
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`In summary, a reasonable jury could have found (and did find) non-infringement under the
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`Court’s claim constructions under either of the above non-infringement defenses. Wi-LAN put on
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`infringement testimony from its expert, Dr. Orsak, and had ample opportunity to cross-examine
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`Dr. Acampora on each of Apple’s non-infringement positions. The jury heard both sides’
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`interpretation of the claim language, considered the experts’ competing testimony, and rendered a
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`verdict of no infringement. As is apparent from the verdict, the jury had reason to believe Dr.
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`Acampora’s testimony and disbelieve the opinions of Dr. Orsak. This Court may not supplant the
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`jury’s assignment of credibility or weight attributed as between the experts, as those are sole
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`functions of the jury. Indeed, Wi-LAN has made no claim that the evidence supporting
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`non-infringement presented at trial was insufficient, only that Apple’s interpretation of the terms
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`13
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`Case 2:12-cv-00600-JRG Document 340 Filed 04/03/14 Page 14 of 16 PageID #: 8551
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`conflicts with the Court’s construction. Having determined that there is no inconsistency, the
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`Court concludes that Wi-LAN has failed to meet its burden of persuasion on this issue and there is
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`no cause to overturn the jury’s verdict of non-infringement.
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`VI. WI-LAN’S ALTERNATIVE REQUEST FOR A NEW TRIAL
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`Pursuant to Fed. R. Civ. P. 59, Wi-LAN moves for a new trial with respect to issues of
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`invalidity, infringement, and jury confusion. All of Wi-LAN’s arguments, with the exception of
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`jury confusion, rely on the same arguments as addressed above. Based on the same reasoning as
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`already discussed, the Court disagrees with each of Wi-LAN’s infringement arguments and does
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`not find the verdict to be against the weight of the evidence. However, the Court will address the
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`jury confusion argument.
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`Wi-LAN contends that Apple confused the jury by arguing that the asserted claims only
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`cover Wifi/LAN products rather than cellular products; therefore, the verdict is against the great
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`weight of the evidence. For support, Wi-LAN cites two things: (1) witnesses being asked whether
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`the patent uses the term “cellular”; and (2) portions of Apple’s opening and closing statements
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`asserting that the ’802 patent is not a cell phone patent.
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`With respect to the first point, it is Wi-LAN’s burden to prove by a preponderance of the
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`evidence that the accused standards infringe the ’802 patent. If Apple presented evidence Wi-LAN
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`disputes or finds improper, such as asking witnesses whether the patent includes the term
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`“cellular,” then the burden shifts to Wi-LAN to make an objection and, if the objection is
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`overruled, cross-examine the witnesses on the correctness or relevance of such testimony. Here,
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`Wi-LAN did not object to these questions during the course of the trial and has therefore waived
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`any objection on the issue. SSL Servs., LLC v. Citrix Sys., Inc., 940 F. Supp. 2d 480, 492 (E.D. Tex.
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`Case 2:12-cv-00600-JRG Document 340 Filed 04/03/14 Page 15 of 16 PageID #: 8552
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`Apr. 17, 2013) (“SSL has waived any objection it might have had to the testimony presented at
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`trial because it failed to object to such testimony during the direct examination at trial.”).
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`Additionally, Wi-LAN had a full and fair opportunity to cross-examine Apple’s witnesses and
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`elicit re-direct testimony of its own witnesses during trial after these questions were asked. It is
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`improper to fail to object during trial while allegedly objectionable testimony is being presented
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`and then wait until post-verdict briefing to ask for a new trial on the same basis.
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`Regarding the second point, Apple’s arguments in opening and closing statements that the
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`’802 patent is not a cell phone patent, the Court has repeatedly instructed the jury that opening and
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`closing arguments are not evidence. On at least three occasions, the Court explained to the jury that
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`what the lawyers say, including their opening and closing statements, are not evidence in this case.
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`(10/15/2013 AM Tr. at 104:2-9; 10/15/2013 PM Tr. at 36:12-16; 10/23/2013 AM Tr. at 26:10-15.)
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`Absent any actual evidence of jury confusion, the Court finds the jury was not confused by
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`Apple’s witness questioning on the term “cellular” or the opening or closing statements. Similarly,
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`the Court does not find the verdict to be so against the great weight of the evidence as to warrant a
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`new trial.
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`VII. CONCLUSION
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`Based on the foregoing, the Court GRANTS-IN-PART Wi-LAN’s motion for judgment
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`as a matter of law and finds that claims 1 and 10 of the ’802 patent are not invalid. In all other
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`respects, Wi-LAN’s motion is DENIED. Accordingly, the Court hereby VACATES the portion
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`of the Judgment (Dkt. No. 628) that found claims 1 and 10 of the ’802 patent to be invalid.
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`Case 2:12-cv-00600-JRG Document 340 Filed 04/03/14 Page 16 of 16 PageID #: 8553
`Case 2:12—cv—00600—JRG Document 340 Filed 04/03/14 Page 16 of 16 Page|D #: 8553
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`So ORDERED and SIGNED this 2nd day of April, 2014.
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` RODNEY GIL RAP
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`UNITED STAT
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`DISTRICT JUDGE
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