Case: 14-1437 Document: 93-2 Page: 1 Filed: 01/08/2016
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`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`WI-LAN, INC.,
`Plaintiff-Appellant
`
`v.
`
`APPLE INC.,
`Defendant-Cross Appellant
`______________________
`
`2014-1437, -2014-1485
`______________________
`
`Appeals from the United States District Court for the
`Eastern District of Texas in Nos. 2:11-cv-00068-JRG,
`2:12-cv-00600-JRG, Judge J. Rodney Gilstrap.
`______________________
`
`Decided: January 8, 2016
`______________________
`
`ROBERT A. COTE, McKool Smith, P.C., New York, NY,
`argued for plaintiff-appellant.
` Also represented by
`SAMUEL FRANKLIN BAXTER, Marshall, TX; JASON
`BLACKSTONE, RICHTER DARRYL BURKE, SETH R.
`HASENOUR, ROSEMARY T. SNIDER, Dallas, TX; DIRK D.
`THOMAS, Washington, DC.
`
`MARK S. DAVIES, Orrick, Herrington & Sutcliffe LLP,
`Washington, DC, argued for defendant-cross-appellant.
`Also represented by KATHERINE M. KOPP, T. VANN
`PEARCE, JR.; BRIAN PHILIP GOLDMAN, San Francisco, CA;
`WILL MELEHANI, Irvine, CA; SIDDHARTHA M. VENKATESAN,
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` WI-LAN, INC. v. APPLE INC.
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`Menlo Park, CA; ANDREW D. SILVERMAN, New York, NY;
`ASHLEE N. LIN, MIGUEL JESUS RUIZ, MARK C. SCARSI,
`Milbank, Tweed, Hadley & McCloy, LLP, Los Angeles,
`CA.
`
`______________________
`
`Before REYNA, WALLACH, and HUGHES, Circuit Judges.
`REYNA, Circuit Judge.
`Wi-LAN, Inc. (“Wi-LAN”) is the assignee of U.S. Pa-
`tent No. RE37,802 (“’802 patent”), which concerns a
`wireless data communication technique called “Multi-
`Code Direct-Sequence Spread Spectrum” (MC-DSSS). Wi-
`LAN asserts that the patented technique is embodied in
`several modern wireless communications standards.
`On February 2, 2011, Wi-LAN sued Apple Inc. (“Ap-
`ple”) and other technology companies in the United States
`District Court for the Eastern District of Texas for in-
`fringing claims 1 and 10 of the ’802 patent by manufactur-
`ing and selling products complying with various wide-
`area communication standards. A jury found that Apple
`did not infringe and that the claims are invalid. The
`district court denied Wi-LAN’s motion for judgment as a
`matter of law (“JMOL”) and for a new trial with respect to
`infringement, but it granted Wi-LAN’s motion for JMOL
`of no invalidity.
`Wi-LAN appeals the trial court’s denial of JMOL and
`its motion for a new trial on infringement, and Apple
`cross-appeals the grant of JMOL of no invalidity. Because
`the jury’s verdict of non-infringement was supported by
`substantial evidence, we affirm the district court’s denial
`of JMOL as to non-infringement. Because the trial court’s
`JMOL determination of no invalidity was based on a post-
`verdict reconstruction of the claims, we reverse the district
`court’s grant of JMOL of no invalidity.
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`I. BACKGROUND
`A. The Patented Technology
`Wireless communication devices use radio waves to
`communicate digital data by modulating the frequency,
`amplitude, or phase of those waves according to pre-
`established patterns. Each pattern communicates a
`respective “symbol” corresponding to a given combination
`of bits. J.A. 3546. Devices that detect the radio waves
`can observe and interpret the modulation patterns to
`recover the transmitted symbols.
`“Direct-Sequence Spread Spectrum” (DSSS) is a prior
`art modulation technique that prevents third parties from
`intercepting and
`interpreting radio communications.
`Using DSSS, a radio transmitter “spreads” a signal across
`a band of frequencies by multiplying the signal against a
`pseudo-random signal called “pseudo-noise.” The pseudo-
`noise signal corresponds to a particular code, such that a
`receiver with a corresponding code can “invert” (i.e.,
`reverse) the spreading to recover the original signal. A
`third party scanning the spectrum would detect only what
`appears to be natural ambient noise, while the intended
`recipient could use the corresponding code to detect and
`decode the communication. A drawback of DSSS is that
`each communication occupies an entire band of frequency,
`which makes it difficult for multiple users to transmit
`data simultaneously.
`“Code Division Multiple Access” (CDMA) is another
`prior art modulation technique that addresses the band-
`width shortcomings of DSSS by allowing multiple users to
`transmit on the same band using different spreading
`codes. Under CDMA, the signals from the multiple users
`form a combined noise-like signal, and each receiver can
`use its respective code to recover the communications
`intended for it from the combined signal.
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`The ’802 patent discloses a “multi-code” variation of
`DSSS (MC-DSSS), which enhances throughput by permit-
`ting a single transmitter to utilize multiple codes simul-
`taneously. ’802 patent col. 1 l. 66 – col. 2 l. 5. The
`specification describes two embodiments, corresponding to
`Figures 1 and 4 respectively.
`
`The embodiment of Figure 1 includes: (1) a converter 10
`for converting a stream of data symbols into multiple sets
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`of N data symbols each, (2) a computing means 12 that
`operates on the sets of data symbols to produce “modulat-
`ed data symbols corresponding to an invertible random-
`ized spreading of the stream of data symbols” and (3) a
`combiner 14 for combining the modulated data symbols
`for transmission. Id. Fig. 1, col. 4 ll. 1–7. The computing
`means modulates each data symbol using a respective
`DSSS code, which may be derived using a series of math-
`ematical transforms, as shown in Figure 3. Id. col. 4 ll. 7–
`12, col. 4 ll. 29–34. The patent lists a dozen exemplary
`mathematical transforms, including the complex “ran-
`domizer transform” of Figure 8. Id. col. 4 l. 66 – col. 5 l.
`12. In the alternative embodiment of Figure 4, the com-
`puting means modulates the N data symbols by applying
`the transforms directly to the N data symbols rather than
`indirectly via the DSSS codes. Id. col. 4 ll. 38–43.
`Asserted claim 1 recites a transceiver for transmitting
`data using three components:
`1. A transceiver for transmitting a first stream
`of data symbols, the transceiver comprising:
`a converter for converting the first stream of
`data symbols into plural sets of N data sym-
`bols each;
`first computing means for operating on the plu-
`ral sets of N data symbols to produce modu-
`lated data symbols corresponding to an
`invertible randomized spreading of the first
`stream of data symbols; and
`means to combine the modulated data symbols
`for transmission.
`The claimed transceiver includes a “converter” for con-
`verting a stream of data symbols into multiple sets of data
`symbols, where each set includes N symbols. Second, the
`transceiver includes a “computing means” for operating
`on the sets to produce “modulated data symbols corre-
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`sponding to an invertible randomized spreading” of the
`original data symbols. Finally, the transceiver includes a
`“means to combine the modulated data symbols for
`transmission.” Asserted claim 10, which depends on
`claim 1, adds means for receiving and decoding the data
`symbols.
`
`B. Procedural History
`The district court held a Markman hearing and issued
`two claim constructions relevant to this appeal. J.A. 18.
`First, the district court construed “modulated data sym-
`bols” to mean “data symbols that have been spread by a
`spreading code.” J.A. 62. In doing so, the court rejected
`Apple’s argument that the modulated data symbols must
`be randomized, explaining that “randomization is a
`desirable feature that is addressed by other claim lan-
`guage, such as the term ‘invertible randomized spread-
`ing,’ which appears in Claim 1 . . . .” Id. Second, the
`district court adopted the parties’ agreed construction of
`“first computing means.” The parties agreed that the
`limitation is a means-plus-function element subject to 35
`U.S.C. § 112 ¶6, and that the corresponding structure is
`“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.”
`J.A. 73. The agreed upon construction matched the
`construction of the same term issued by a different court
`in previous litigation between the parties. WI-LAN, Inc.
`v. Acer, Inc., No. 2:07-CV-473-TJW, Dkt. No. 469 (E.D.
`Tex. May 11, 2010) (“Acer”). In that case, the court had
`rejected Wi-LAN’s proposal to construe the “first compu-
`ting means” as additionally encompassing the exemplary
`transforms disclosed at col. 4 l. 66 – col. 5 l. 12, including
`the complex randomizer of Figure 8, because the trans-
`forms related to how the pseudo-noise is generated rather
`than to any structure in the computing means. J.A. 1362,
`1364. Wi-LAN agreed to the Acer construction of the
`“first computing means” in this case and did not seek a
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`construction that explicitly included the additional struc-
`ture.
`At trial, Apple argued that it did not infringe because
`claim 1 requires randomizing the data symbols before
`combining them, and that Apple’s products perform these
`steps in the reverse order (the “ordering requirement”).
`Claim 1 recites that the computing means must “produce
`modulated data symbols corresponding to an invertible
`randomized spreading” and that the converter must
`“combine the modulated data symbols.” Apple argued
`that because “the modulated data symbols” refers back to
`the earlier-recited “modulated data symbols correspond-
`ing to an invertible randomized spreading,” the data
`symbols to be combined must have already been random-
`ized. J.A. 13. The parties agreed that Apple’s products
`randomize the data symbols only after combining them.
`Apple also argued that claims 1 and 10 are invalid be-
`cause several prior art publications, including a 1989
`paper by Sasaki,1 anticipated the asserted claims. J.A.
`10,334. The parties agreed that the prior art references
`taught randomizing the modulated data symbols using
`real multipliers (i.e., using a “real randomizer”) rather
`than using complex multipliers (i.e., using a “complex
`randomizer”).2 J.A. 1059 at 194:21–25; J.A. 1058 at
`190:21–191:4. Apple’s invalidity arguments consequently
`rested on the proposition that “the Court’s claim construc-
`
`
`1 Shingenobu Sasaki & Gen Marubayashi, A Study
`on the Code of Sequence for Parallel Spread-Spectrum
`Data Transmission, Inst. of Electronics, Info., and
`Commc’n. Engineers (IEICE) Technical Report, Vol. 89,
`no. 265 (Oct. 1989).
`2 Complex multipliers are hardware structures that
`can multiply complex numbers, whereas real multipliers
`can multiply only real numbers.
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`tion told us what the first computing means is, and it
`didn’t say complex randomizer.” J.A. 1059 at 195:5–11.
`The jury found claims 1 and 10 of the ’802 patent in-
`valid and not infringed. J.A. 362, 364. Wi-LAN moved for
`JMOL on both issues, and for a new trial on non-
`infringement. J.A. 1197. Wi-LAN argued that the court’s
`claim constructions precluded the ordering requirement
`underlying Apple’s non-infringement defense. J.A. 11-15.
`Wi-LAN also argued that the prior art did not anticipate
`the asserted claims because the prior art did not random-
`ize using complex multipliers, which Wi-LAN argued the
`asserted claims require. J.A. 5.
`The district court upheld the jury’s finding of non-
`infringement, and reversed on invalidity. J.A. 16. Re-
`garding non-infringement, the district court held that the
`ordering requirement was consistent with the court’s
`claim constructions and that a reasonable jury could have
`found non-infringement under those constructions. J.A.
`14. Regarding invalidity, the district court determined
`that, although its construction of computing means “does
`not specifically provide for a complex multiplier,” a com-
`plex multiplier was nevertheless necessary because
`“expert witnesses from both sides agreed that complex
`multipliers are part of the structure of the ‘first compu-
`ting means’ as taught by the ’802 patent.” J.A. 9–10. It
`was undisputed that such multipliers were absent from
`the prior art.
`Wi-LAN appeals the denial of JMOL on non-
`infringement. Apple cross-appeals the grant of JMOL on
`no invalidity.
`
`II. STANDARDS OF REVIEW
`In reviewing a district court’s rulings on motions for
`JMOL or for a new trial, we apply regional circuit law.
`Seachange Int’l, Inc. v. C-COR, Inc., 413 F.3d 1361, 1367–
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`68 (Fed. Cir. 2005). The district court here sits in the
`Fifth Circuit.
`The Fifth Circuit “reviews a motion for judgment as a
`matter of law de novo, applying the same legal standard
`as did the trial court.” Ford v. Cimarron Ins. Co., 230 F.3d
`828, 830 (5th Cir. 2000) (internal citations omitted). The
`Fifth Circuit “grants great deference to a jury’s verdict
`and will reverse only if, when viewing the evidence in the
`light most favorable to the verdict, the evidence points so
`strongly and overwhelmingly in favor of one party that
`the court believes that reasonable jurors could not arrive
`at any contrary conclusion.” Dresser-Rand Co. v. Virtual
`Automation Inc., 361 F.3d 831, 838 (5th Cir. 2004). The
`Fifth Circuit “review[s] the district court's decision on a
`motion for a new trial for an abuse of discretion.” Holly-
`brook Cottonseed Processing, L.L.C. v. Am. Guarantee &
`Liab. Ins. Co., 772 F.3d 1031, 1034 (5th Cir. 2014). “The
`standard for the district court to grant a new trial is
`whether the verdict is against the great weight of the
`evidence.” Whitehead v. Food Max of Miss., Inc., 163 F.3d
`265, 270 (5th Cir. 1998).
`Anticipation and infringement (both literal and under
`the doctrine of equivalents) are questions of fact, which
`we review for substantial evidence when tried to a jury.
`TI Grp. Auto. Sys. (N. Am.), Inc. v. VDO N. Am., L.L.C.,
`375 F.3d 1126, 1133 (Fed. Cir. 2004). Claim construction
`is a legal issue that may be based on underlying findings
`of fact. Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct.
`831, 841 (2015). We therefore review a court’s construc-
`tions de novo and any underlying factual findings based
`on extrinsic evidence for clear error. Id.
`III. DISCUSSION
`A. Non-Infringement
`On appeal, Wi-LAN challenges the district court’s de-
`nial of JMOL on non-infringement on the grounds that
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`the district court’s claim constructions precluded the
`ordering
`requirement
`underlying Apple’s
`non-
`infringement defense. Wi-LAN argues that the district
`court expressly rejected the ordering requirement at claim
`construction when it refused to construe “modulated data
`symbols” as necessarily randomized. J.A. 62. Wi-LAN
`argues that, even with the ordering requirement, Apple’s
`products would still infringe under the doctrine of equiva-
`lents because it is undisputed that the different orderings
`produce mathematically identical results.
`Claim construction begins with the words of the
`claim, which “must be read in view of the specification, of
`which they are a part.” Phillips v. AWH Corp., 415 F.3d
`1303, 1312–15 (Fed. Cir. 2005) (en banc); Vitronics Corp.
`v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).
`Although courts are permitted to consider extrinsic evi-
`dence, like expert testimony, such evidence is generally of
`less significance than the intrinsic record. Phillips, 415
`F.3d at 1317 (citing C.R. Bard, Inc. v. U.S. Surgical Corp.,
`388 F.3d 858, 862 (Fed. Cir. 2004)). Extrinsic evidence
`may not be used “to contradict claim meaning that is
`unambiguous in light of the intrinsic evidence.” Id. at
`1324.
`The text of the asserted claims requires randomizing
`the modulated data symbols before combining them.
`Claim 1 recites a computing means that “produce[s]
`modulated data symbols corresponding to an invertible
`randomized spreading” and a means to combine that
`“combine[s] the modulated data symbols.” Subsequent
`use of the definite articles “the” or “said” in a claim refers
`back to the same term recited earlier in the claim. Bald-
`win Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1342
`(Fed. Cir. 2008). The term “the modulated data symbols”
`therefore refers back to the randomized data symbols
`produced by the computing means in the second claim
`element. Because the modulated data symbols in the
`second element are randomized upon being produced,
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`those same modulated data symbols in the third element
`have already been randomized before they are combined.
`The text of the claim thus requires producing randomized
`symbols and then combining those randomized symbols.
`The ordering requirement described above is con-
`sistent with the specification. Every embodiment dis-
`cussed in the specification randomizes the data symbols
`before combining them. For instance, Figures 1 and 4
`both show combining as the final step, after computing
`means 12 operates on (i.e., spreads and randomizes) the
`data symbols. No disclosure in the specification depicts or
`discusses the possibility of combining before randomizing.
`The intrinsic record is therefore clear that the asserted
`claims cover only structure that randomizes data symbols
`in parallel before combining them for transmission.
`Contrary to Wi-LAN’s argument, the district court did
`not explicitly reject the ordering requirement at claim
`construction. The district court rejected only Apple’s
`argument that the unmodified term “modulated data
`symbols” must necessarily refer to randomized data
`symbols. J.A. 59–62. The district court did so only be-
`cause the randomization requirement “is addressed by
`other claim language, such as the term ‘invertible ran-
`domized spreading.’” J.A. 59–62. Even though generic
`“modulated data symbols” do not have to be randomized,
`the recited “modulated data symbols corresponding to an
`invertible randomized spreading” do have be randomized.
`Because “the modulated data symbols” refers back to
`these already-randomized symbols, the claims impose the
`disputed ordering requirement. As the district court
`reiterated in its JMOL order, nothing in its construction
`precludes the ordering requirement. J.A. 14.
`Wi-LAN also argues that the ordering requirement is
`inconsistent with dependent claim 4, which Wi-LAN
`contends places the “means to combine” between the
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`spreading and the randomizing steps. We disagree.
`Claim 4 recites:
`4. The transceiver of claim 1 in which the first
`computing means comprises:
`a transformer for operating on each set of data
`symbols to generate modulated data sym-
`bols as output, the modulated data symbols
`corresponding to spreading of each data
`symbol over a separate code selected from a
`set of more than one and up to M codes,
`where M is the number of chips per code;
`and
`means to combine the modulated data symbols
`for transmission.
`Claim 4 thus recites that the first computing means
`includes both a transformer for spreading the symbols
`and a means to combine the symbols. This configuration
`does not preclude the recited transformer, or any other
`component of the first computing means, from also ran-
`domizing the data symbols before they are combined.
`Claim 4 is therefore consistent with an interpretation of
`claim 1 that requires a structure that randomizes the
`symbols before combining them.
`In summary, the intrinsic record requires that the
`symbols be modulated according to an invertible random-
`ized spreading before being combined for transmission.
`Because Apple’s products do not randomize the symbols
`before combining them, the structure of those products is
`not identical to the disclosed structure, and Apple there-
`fore does not infringe the asserted claims.
`Wi-LAN argues that even if claim 1 requires a struc-
`ture that randomizes before combining, structure that
`performs these steps in the reverse order nevertheless
`infringes under the doctrine of equivalents because the
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`resulting output of the two orderings is mathematically
`identical.
`We have recognized that the doctrine of equivalents
`may be applied to a means-plus-function limitation to
`afford that limitation a somewhat broader scope of equiv-
`alents than it would otherwise receive under § 112 ¶6.
`Ring & Pinion Serv. Inc. v. ARB Corp., 743 F.3d 831, 835
`(Fed. Cir. 2014). Because the record contains no indica-
`tion that the doctrine of equivalents is inapplicable here
`and because Apple has not so argued, we analyze in-
`fringement under that doctrine.
`Infringement under the doctrine of equivalents re-
`quires the patentee to prove that the accused device
`contains an equivalent for each limitation not literally
`satisfied. Catalina Mktg., 289 F.3d at 812. An element in
`the accused product is equivalent to a claimed element if
`the differences between the two elements are “insubstan-
`tial” to one of ordinary skill in the art. Warner–Jenkinson
`Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 40 (1997).
`Substantial evidence supports the jury’s verdict that
`the order difference between Apple’s products and the
`claimed invention is not insubstantial.3 Apple’s expert,
`Dr. Acampora, testified that the processor in Apple’s
`products is “not equivalent structure” to the recited
`“computing means.” J.A. 1052 at 167:6–7. He explained
`that the two structures are “fundamentally different
`because the order [of randomizing and combining] is
`wrong.” J.A. 1054 at 174:20–22. Dr. Acampora elaborat-
`
`
`3 Though the verdict form did not include a sepa-
`rate question specific to the doctrine of equivalents, J.A.
`361, the district court instructed the jury on that doctrine,
`J.A. 384–387, and the verdict is therefore one of no in-
`fringement, either literally or under the doctrine of equiv-
`alents.
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`ed that even though the different orderings produce
`mathematically equivalent results, they require structur-
`ally different hardware pipelines to implement:
`[T]he order in which these multiplications are
`done, the spreading and the randomization, does
`matter, because it – it affects the number of – the
`number of multipliers, the number of transistors
`that are needed on the circuitry. In one case, you
`need a lot more circuitry than you need in the sec-
`ond case. So that order really does matter. This is
`a design consideration. And the number of – the
`amount of circuitry that is needed is important,
`because these circuits, first of all, will take up
`space on the silicon, on the chip itself, and the
`more complicated and larger that chip becomes, in
`general, the more power-hungry it becomes. And
`in the cellular field, actually two things are very
`precious: Bandwidth spectrum and battery. So
`anything you do to reduce the power drain is use-
`ful, even if it’s only a little bit.
`J.A. 1034 at 93:22–94:13.
`Wi-LAN counters that the structural differences Dr.
`Acampora described were insubstantial, and it points to
`Dr. Acampora’s testimony that in a configuration such as
`that found in Apple’s products, changing the order of
`operations would save as few as twenty transistors out of
`the millions found on the chip. J.A. 1053–54. Wi-LAN
`argues that such a slight modification is insubstantial
`and
`therefore cannot support a
`finding of non-
`equivalence.
`Though Wi-LAN’s argument has merit, we find it in-
`sufficient to disturb the jury’s verdict on substantial
`evidence review. On cross-examination Dr. Acampora
`testified that one should not consider the magnitude of
`structural differences with respect to the entire chip, but
`only with respect to the portion of the chip used to per-
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`form the relevant functionality. J.A. 1054 at 173:10–14.
`He testified that because that portion of the chip contains
`only a few hundred transistors, a savings of “20 out of a
`few hundred transistors” is “a big deal in wireless com-
`munications.” Id. Moreover, Dr. Acampora testified that,
`as parallelism increases, the differences in hardware
`requirements between the two designs could be orders of
`magnitude greater than the twenty transistors discussed
`in his cross-examination. J.A. 1033–34 at 91:19–93:11. It
`was therefore reasonable for the jury to credit Dr.
`Acampora’s testimony and to conclude that a person of
`ordinary skill would have found the design differences not
`insubstantial.
`For the foregoing reasons, the jury’s verdict is neither
`unreasonable nor against the great weight of the evi-
`dence. The district court’s denial of JMOL respecting
`non-infringement was therefore proper and its denial of a
`new trial on the issue was not an abuse of discretion. We
`affirm the district court’s denials of both motions.
`B. Invalidity
`The district court vacated the jury’s verdict of invalid-
`ity because a reasonable jury should have understood that
`the first computing means must randomize the symbols
`using complex multipliers while the prior art used only
`real multipliers. J.A. 5. While acknowledging that its
`construction “does not specifically provide for a complex
`multiplier,” the district court nevertheless found such a
`component required because “throughout the trial, both
`sides took the position that the complex multiplier found
`in Figure 8 was necessarily included in the Court’s con-
`struction.” J.A. 8–9.
`On appeal, Apple argues that the district court’s post-
`verdict addition of a complex multiplier requirement was
`a new claim construction, which the district court may not
`issue at the JMOL stage. We agree.
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`“[I]t is too late at the JMOL stage to argue for or
`adopt a new and more detailed interpretation of the claim
`language and test the jury verdict by that new and more
`detailed interpretation.” Hewlett-Packard Co. v. Mustek
`Sys., Inc., 340 F.3d 1314, 1321 (Fed. Cir. 2003). At the
`JMOL stage, the question for the trial court is limited to
`whether substantial evidence supports the jury’s verdict
`under the issued construction. Id.
`Here, the jury was instructed that the “first compu-
`ting means” is the structure corresponding to “elements
`12 of Figures 1 and 4, columns 2:6–10, 2:36–40, 2:58–62,
`4:2–12, 4:35–44, and equivalents thereof.” J.A. 73. As the
`district court acknowledged, this construction “does not
`specifically provide for a complex multiplier.” J.A. 9. In
`fact, nothing in the cited portions of the specification
`refers to Figure 8 or even mentions complex multipliers.
`J.A. 7. Instead, the portion of the specification dealing
`with Figure 8 and the other exemplary transforms (i.e.,
`col. 4 l. 66 – col. 5 l. 12) is absent from the construction.
`This absence is particularly conspicuous given that in
`Acer, Wi-LAN had sought and failed to obtain a construc-
`tion that included the omitted material, and that it sub-
`sequently consented to the omission in this case. When
`tested by the construction the court provided, it was
`reasonable for the jury to conclude that the “first compu-
`ting means” need not include the complex multiplier of
`Figure 8.
`Wi-LAN argues that the trial court’s JMOL order was
`based, not on an impermissible reconstruction, but on a
`permissible clarification of the existing construction. Wi-
`LAN echoes the district court’s conclusion that expert
`testimony from both sides established that the complex
`multiplier of Figure 8 was implicit within the construc-
`tion. Wi-LAN notes that Apple’s expert, Dr. Acampora,
`agreed that “the randomizer transform in Figure 8 is part
`of the transforms that are in Figure 4 and Figure 1 of the
`patent.” Therefore, Wi-LAN argues, the district court’s
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`clarification at JMOL only made explicit what was al-
`ready implicit in the original construction.
`We have recognized that a trial court may “adjust
`constructions post-trial if the court merely elaborates on a
`meaning inherent in the previous construction.” Mfor-
`mation Techs., Inc. v. Research in Motion Ltd., 764 F.3d
`1392, 1397 (Fed. Cir. 2014). For example, in Cordis Corp.
`v. Boston Scientific, the district court construed the term
`“undulating” to mean “rising and falling in waves,” but
`clarified in granting JMOL that the plural “waves” could
`not be met by a single “U” shape. 658 F.3d 1347, 1355–57
`(Fed. Cir. 2011) (emphasis added). We held that clarifica-
`tion permissible because it only “made plain . . . what
`should have been obvious to the jury.” Id. at 1356.
`This is not a case, however, where the inclusion of an
`implicit component should have been obvious to the jury.
`Contrary to the district court’s characterizations of the
`expert testimony, the parties clearly did not agree that
`the claims required complex randomization. Dr. Acampo-
`ra made clear that “the Court’s claim construction told us
`what the first computing means is, and it didn’t say
`complex randomizer.” J.A. 1059 at 195:9–11. Dr.
`Acampora’s entire invalidity theory rested on the premise
`that the claims do not require complex randomization. He
`testified that, “Sasaki does not show complex randomiz-
`ing, just randomizing.” J.A. 1059 at 196:4–5; see also J.A.
`1059 at 194:21–25 (“[Sasaki] does not use a complex
`randomizer.”); J.A. 1058 at 190:21–191:4. Despite the
`absence of the complex randomizer, Dr. Acampora testi-
`fied repeatedly that the Sasaki reference discloses the
`first computing means because it discloses invertible
`randomized spreading using real randomizers. J.A. 1037
`at 106:19–21; J.A. 1037 at 107:10–12; J.A. 1038 at 111:11-
`13. The district court’s characterization of Dr. Acampo-
`ra’s testimony as requiring a complex randomizer is
`clearly at odds with that witness’s testimony. And even
`had Dr. Acampora opined that the invention’s computing
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`means required a complex multiplier, the jury was in-
`structed that it was “not required to accept that opinion,”
`and that “it is solely up to you to decide whether to rely
`upon that opinion or not.” J.A. 373. Dr. Acampora’s
`testimony did not require a reasonable jury to conclude
`that a complex multiplier was necessary.
`In sum, the district court’s JMOL of no invalidity was
`based on a reconstruction of the claims that went far
`beyond clarifying a meaning inherent in the construction
`or making plain what should have been obvious to the
`jury. Instead, the post-verdict reconstruction altered the
`scope of the original construction and undermined Apple’s
`invalidity case post-verdict.
`The only other argument Wi-LAN raised at JMOL re-
`specting invalidity was that Apple’s expert had failed to
`perform a structural comparison of the claimed structure
`and the prior art. J.A. 5, 1197. The district court rejected
`that argument, and Wi-LAN has not appealed that rejec-
`tion. J.A. 7. Because the complex multiplier requirement
`was the only other basis on which the district court could
`have vacated the jury’s invalidity verdict, and because we
`reject that basis here, we reverse.
`IV. CONCLUSION
`For the reasons stated above, we affirm the district
`court’s denial of JMOL and of a new trial with respect to
`non-infringement, and we reverse the district court