Footnote in Brief Doesn’t Count; Anyway Construction for Infringement Construction can’t be From Validity

In Commscope Technologies LLC v. Dali Wireless Inc., [2020-1817, 2020-1818] (August 24, 2021) the Federal Circuit reversed the district court’s denial of JMOL of no infringement of U.S. Patent No. 9,031,521, and affirmed denial of JMOL of invalidity.

U.S. Patent No. 9,031,521, relates to wireless communications with portable equipment and handsets, such as mobile phones.  The claim limitation at the center of the parties’ infringement dispute is the first step in the claimed operating phase: “switching a controller off to disconnect signal representative of the output of the power amplifier.”  On appeal CommScope argued that Dali failed to present evidence proving that the FlexWave meets the district court’s construction of the claim term “switching a controller off.” The Federal Circuit agreed.

Dali argued that the claim term “switching a controller off” meant “switching a controller to an off status,” and no further definition was needed.  CommScope, on the other hand, proposed that the claim term meant “[s]witching a controller to a nonoperating state.”  The district court agreed with CommScope, drawing a distinction between: (1) when the controller is turned off and (2) the effect on the system of turning the controller off.

Dali argued (in a footnote) that CommScope’s position was nonsense.  The Federal Circuit said that “an argument that is only made in a footnote of an appellant’s brief is forfeited.”  Further, even if the argument were in the body of the brief, it was insufficiently developed. Finally, and most importantly, the s irreconcilable with Dali’s statements in other portions of its brief.  Thus the Federal Circuit turned to the issue of infringement.  The Federal Circuit pointed out that Dali’s expert’s testimony never states that either the switch or the controller is rendered “nonoperating,” thus does not provide substantial evidence to support the jury’s finding that the accused product meets the district court’s claim construction.  Not only was there a lack of evidence to show that the accused product met the proper construction of the claims, there is unrebutted evidence showing the opposite.  CommScope points to the testimony of its expert, who testified that both the switch and the controller are continuously operating.

The Federal Circuit said that the burden is on a patent owner to show that “the properly construed claim reads on the accused device exactly.”  CommScope’s reliance on the claim terms as construed by the district court is not “hairsplitting,” as Dali argues, but instead properly shows that Dali failed to meet its burden at the district court and that no reasonable jury could have found otherwise.  Dali presented only a literal infringement case, and not a doctrine-of-equivalents alternative. Thus, Dali’s argument that the accused switch/controller is effectively “nonoperating” because it is not passing a feedback signal of the power amplifier of interest is irrelevant because Dali failed to produce evidence below to show that the accused controller is literally nonoperating, as the district court determined was required by the claim.

Finally, Dali’s arguments on infringement cannot stand in view of its arguments of no anticipation.  For these reasons, the Federal Circuit reversed the district court’s denial of CommScope’s motion for JMOL of no infringement of the ’521 patent and affirmed the judgment of the district court in all other respects.

Celebrity Endorsement Provokes Patent Infringement Claim

Snap Light LLC has sued Kim Kardashian, though her company Kimsaprincess, Inc., and her collaborator Urban Outfitters, Inc., for patent infringement.  As improbable as that sounds, it is illuminating U.S. Patent No. 8,428,644 covers a phone case with a light source for taking improved selfies.

It seems Snap Light’s real complaint is the candle power of Kim Kardashian’s endorsement, rather than the LuMee product that Kim is endorsing.  Snap Light’s comparison of the  patent with the LuMee device shows at least one significant difference between the claims and the accused device:

The patent claims require an “integrated right of Light Emitting Diode (LED) lights,” while the LuMee case has two parallel rows of lights (like a conventional make-up mirror.”  Another issue the patent owner may have to address is whether the claim mixes a method step (“provide”) in a apparatus claim.

The complaint seems more focused on Kim Kardashian’s marketing activities than whether the product infringes.


Internal Fight Over Role of Appellate Court Reveals Substantial Difference of Opinion over Substantial Evidence at Federal Circuit

In Apple, Inc., v. Samsung Electronics Co., Inc., [2015-1171, 2015-1195, 2015-1994] (October 7, 2016), the en banc Federal Circuit completely undid the panel decision with respect to three patents, with the three original panel judges dissenting.

The district court granted summary judgment that Samsung infringed U.S. Patent No. 8,074,172, and jury found that the claims were not invalid.  The jury found that Samsung infringed U.S. Patent No. 5,946,647 and U.S. Patent No. 8,046,721, and that these patents were not invalid.  The district court denied Samsung’s motions for JMOL.  A panel of the Federal Circuit reversed.  On Apple’s petition for en banc review, the Federal Circuit granted the petition “to affirm our understanding of the appellate function as limited to deciding the issues raised on appeal by the parties, deciding these issues only on the basis of the record made below, and as requiring appropriate deference be applied to the review of fact findings.”

The ’647 Patent

The jury found that Samsung infringed the ‘647 patent and awarded Apple $98,690,625. Because there was substantial evidence to support the jury’s verdict, the en banc Federal Circuit affirmed.  The Court found that the panel used extra-record extrinsic evidence to modify the agreed upon and unappealed construction.  The Court pointed out that the claim construction was not appealed, and it did not agree with the Panel that that Apple agreed to the panel’s change to the construction.  Samsung did not appeal the validity of the ‘647 patent

The ’721 Patent

The jury found that the ‘721 patent was infringed and would not have been obvious. Because there was substantial evidence to support the jury’s underlying fact findings, and that these fact findings supported the conclusion that Samsung failed to establish by clear and convincing evidence that the claims of the ‘721 patent would have been obvious.  The Court noted its restricted role on appeal:

Our job is not to review whether Samsung’s losing position was also supported by substantial evidence or to weigh the relative strength of Samsung’s evidence against Apple’s evidence. We are limited to determining whether there was substantial evidence for the jury’s findings, on the entirety of the record.

The ‘172 Patent

The district court granted summary judgment of infringement of the ‘172 patent, and the jury found the patent not invalid, and awarded $17,943,750 in damages.  Samsung appealed the denial of its JMOL.  The Federal Circuit found substantial evidence supporting the jury verdict, and affirmed.  The Court further commented on its role as an appellate court:

Even in cases in which a court concludes that a reasonable jury could have found some facts differently, the verdict must be sustained if it is supported by substantial evidence on the record that was before the jury. But as an appellate court, it is beyond our role to reweigh the evidence or consider what the record might have supported, or investigate potential arguments that were not meaningfully raised.  Our review is limited to whether fact findings made and challenged on appeal are supported by substantial evidence in the record, and if so, whether those fact findings support the legal conclusion of obviousness.

The Federal Circuit affirmed and reinstated the district court judgment as
to the ’647, ’721, and ’172 patents, and well as the portions of the panel decision pertaining to four other patents.