Commscope Technologies LLC v. Dali Wireless Inc.

• Court: Court of Appeals for the Federal Circuit
• Decided: August 24, 2021
• Docket: 20-1817
• Status: Published

Opinion

Case: 20-1817 Document:49 Page:1 _ Filed: 08/24/2021

GAnited States Court of Appeals for the Federal Circuit

COMMSCOPE TECHNOLOGIES LLC, COMMSCOPE CONNECTIVITY LLC, Plaintiffs-Appellants

Vv.

DALI WIRELESS INC., Defendant-Cross-Appellant

2020-1817, 2020-1818

Appeals from the United States District Court for the Northern District of Texas in No. 3:16-cv-00477-M, Chief Judge Barbara M.G. Lynn.

Decided: August 24, 2021

PHILIP P. CASPERS, Carlson, Caspers, Vandenburgh & Lindquist, P.A., Minneapolis, MN, argued for plaintiffs-ap- pellants. Also represented by WILLIAM F. BULLARD, SAMUEL A. HAMER.

CHARLES HARDY DAVIS, Goldstein & Russell, P.C., Be- thesda, MD, argued for defendant-cross-appellant. Also represented by ERIC F. CITRON; CRISTOFER LEFFLER, Folio Law Group PLLC, Lake Forest Park, WA.

Case: 20-1817 Document:49 Page:2 _ Filed: 08/24/2021

Before REYNA, SCHALL, and STOLL, Circuit Judges. STOLL, Circuit Judge.

CommScope and Dali each appeal from the district court’s entry of judgment after it denied their motions for judgment as a matter of law, for a new trial, and for attor- neys’ fees. This appeal and cross-appeal involve several patents and numerous issues regarding infringement and validity, but our opinion focuses on only two: infringement and validity of U.S. Patent No. 9,031,521. Although we have thoroughly considered the other issues raised by both parties, we affirm the district court’s determinations as to those issues without significant discussion. As to the 521 patent, for the reasons discussed below, we reverse the district court’s denial of JMOL of no infringement and af- firm its denial of JMOL of invalidity.

BACKGROUND

CommScope Technologies LLC and CommScope Con- nectivity LLC (Collectively, “CommScope”) filed suit against Dali Wireless Inc. (“Dali”) in the United States Dis- trict Court for the Northern District of Texas alleging in- fringement of five of CommScope’s patents relating to telecommunications technology. Dali counterclaimed, al- leging CommScope infringed two of Dali’s patents also re- lating to telecommunications technology.

One of those asserted patents, the 521 patent, is as- signed to Dali and is titled “System and Method for Digital Memorized Predistortion for Wireless Communication.” This technology generally relates to wireless communica- tions with portable equipment and handsets, such as mo- bile phones. 521 patent col. 1 ll. 19-23; see also id. at col. 4 ll. 18-23. Such devices often include a power amplifier to boost the signal. However, amplification can cause unin- tended distortions to the signal. Jd. at col. 1 ll. 36—40, 54-67. The 521 patent resolves this problem through the Case: 20-1817 Document:49 Page:3 _ Filed: 08/24/2021

COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 3

use of a feedback loop and lookup tables, as described be- low.

Specifically, the 521 patent describes a training mode (Fig. 3), in which the feedback loop runs and the lookup tables are updated, and an operating mode (Fig. 4), in which the “switch ON/OFF controllers” are turned off and the lookup table is no longer updated. Jd. at col. 5 1. 55— col. 71. 30. In training mode, the feedback loop on the bot- tom half of Figure 3 uses the output signal fed back from power amplifier 16 to calculate digital predistortion values that are stored in lookup tables 311 & Q.

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These lookup table values are used in operating mode to intentionally “predistort” the signal before the signal is sent to the power amplifier in a way such that after the signal is amplified, it is not distorted.

1 For the 521 patent figures, we have included the versions from CommScope’s briefs, which are clearer ver- sions of the figures than those in the ’521 patent. Compare Appellants’ Br. 9, with 521 patent Fig. 3. Case: 20-1817 Document:49 Page:4 _ Filed: 08/24/2021

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Id. Fig. 4 (depicting operating mode), col. 6 ll. 27-41. Claim 1 of the 521 patent recites:

1. A method of operating a power amplifier, the method comprising:

initializing the power amplifier;

performing a training phase comprising:

establishing pre-computed distortion contribu- tions based on pre-compensation training feed- back signals representative of output of the power amplifier; and

storing the pre-computed distortion contribu- tions in a lookup table; and

performing an operating phase comprising:

switching a controller off to disconnect signal representative of the output of the power ampli- fier;

accepting an original value that reflects infor- mation to be communicated;

generating a digital lookup table key based on the original value;

retrieving from the lookup table, using the dig- ital lookup table key, a corresponding pre- Case: 20-1817 Document:49 Page:5 _ Filed: 08/24/2021

COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 5

computed distortion contribution for the origi- nal value;

distorting the original value based on the cor- responding pre-computed distortion contribu- tion to obtain a distorted value to pre- compensate for the nonlinear characteristics of the power amplifier; and

wirelessly transmitting a pre-distorted signal based on the distorted value.

Id. at col. 10 1. 47-col. 11 1. 4 (emphasis added to disputed limitation).

Dali accused CommScope’s FlexWave Prism distrib- uted antenna system (FlexWave) of infringing the 521 pa- tent. According to CommScope, this system is installed on telephone poles to extend wireless coverage. Appellants’ Br. 12. Similar to the 521 patent, the FlexWave system analyzes a feedback signal from a power amplifier to calcu- late predistortion. Unlike the 521 patent, the FlexWave uses two power amplifiers. The dispute between the par- ties centers on the FlexWave’s selector switch (labeled “SW” in the figure below), which continuously chooses be- tween feedback signals from the two power amplifiers for calculating predistortion values: Case: 20-1817 Document:49 Page:6 _ Filed: 08/24/2021

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Id. at 14 (depicting the accused FlexWave).

The claim limitation at the center of the parties’ in- fringement dispute is the first step in the claimed “operat- ing phase”: “switching a controller off to disconnect signal representative of the output of the power amplifier.” 521 patent col. 10 ll. 57-58 (emphasis added). The district court construed this term to mean “[s]witching a controller to a nonoperating state to disconnect signal representative of the output of the power amplifier.”, CommScope Techs. LLC v. Dali Wireless, Inc. (Claim Construction Order), No. 3:16-cv-477, 2017 WL 6549933, at *12 (N.D. Tex. Dec. 19, 2017).

At trial, CommScope argued that three pieces of prior art anticipated the asserted claims of the 521 patent— Case: 20-1817 Document:49 Page:7 Filed: 08/24/2021

COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 7

Wright,? Bauder,? and Khan.4 Wright is particularly rele- vant to our decision on appeal.

Like the 521 patent, Wright discloses a system for dig- ital predistortion that uses a feedback signal from a power amplifier to calculate predistortion values. Like the ac- cused FlexWave device, Wright’s system includes multiple power amplifiers (601:-n) and a switch (Multiplexer (“MUX”) 106) that selects one of the feedback signals from one of the power amplifiers.

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4 U.S. Patent No. 5,959,499. Case: 20-1817 Document:49 Page:8 _ Filed: 08/24/2021

Appellants’ Br. 39 (citing Wright Figs. 33A, 33B).

The jury rendered a verdict of infringement, no inva- lidity, and damages for both CommScope and Dali. The district court denied both parties’ motions for JMOL, de- nied CommScope’s motion for a new trial, denied CommScope’s request for attorneys’ fees, and entered judg- ment.

CommScope appeals and Dali cross-appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(1).

DISCUSSION

This court reviews the denial of a motion for JMOL un- der regional circuit law, here, Fifth Circuit law. Rembrandt Wireless Techs., LP v. Samsung Elecs. Co., 853 F.3d 1370, 1378 (Fed. Cir. 2017) Citation omitted). The Fifth Circuit reviews a denial of a motion for JMOL de novo, asking whether a “reasonable jury would not have a legally suffi- cient evidentiary basis to find for the party on that issue.” Id. (quoting Cambridge Toxicology Grp. v. Exnicios, 495 F.3d 169, 179 (th Cir. 2007)).

I

We turn first to the jury’s findings of infringement and no anticipation of the 521 patent. Although the questions of infringement and anticipation are separate inquiries, the two are related. As the Supreme Court has stated, “[t]hat which infringes, if later, would anticipate, if ear- lier.” Peters v. Active Mfg. Co., 129 U.S. 530, 537 (1889); see also Lewmar Marine, Inc. v. Barient, Inc., 827 F.2d 744, 747 (Fed. Cir. 1987); Dow Chem. Co. v. Astro-Valcour, Inc., 267 F.3d 1334, 1339 (Fed. Cir. 2001); Ecolab, Inc. v. FMC Corp., 569 F.3d 1335, 1348 (Fed. Cir. 2009).

“A determination of infringement is a question of fact that is reviewed for substantial evidence when tried to a jury.” ACCO Brands, Inc. v. ABA Locks Mfr. Co., 501 F.3d 1307, 1311 (Fed. Cir. 2007) (citing TI Grp. Auto. Sys. Case: 20-1817 Document:49 Page:9 _ Filed: 08/24/2021

COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 9

(N. Am.), Inc. v. VDO N. Am., L.L.C., 375 F.3d 1126, 1133 (Fed. Cir. 2004)). Whether an accused device infringes re- quires a two-step analysis—the court first “determines the scope and meaning of the patent claims asserted, and then the properly construed claims are compared to the alleg- edly infringing device.” Interactive Pictures Corp. v. Infi- nite Pictures, Inc., 274 F.3d 1371, 1376 (Fed. Cir. 2001) (quoting Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed. Cir. 1998) (en banc), abrogated on other grounds by Teva Pharms. USA, Inc. v. Sandoz, Inc., 789 F.3d 1335 (Fed. Cir. 2015)).

Anticipation, likewise, is a question of fact that we re- view for substantial evidence. Enplas Display Device Corp. v. Seoul Semiconductor Co., 909 F.3d 398, 406 (Fed. Cir. 2018). “A determination that a patent is invalid as antici- pated under 35 U.S.C. § 102 requires that a prior art refer- ence disclose every limitation of the claimed invention, either explicitly or inherently.” Liebel-Flarsheim Co. vu. Medrad, Inc., 481 F.3d 1371, 1381 (Fed. Cir. 2007) (cita- tion omitted).

On appeal, CommScope argues that substantial evi- dence does not support the jury’s finding that CommScope’s FlexWave infringes Dali’s ’521 patent. Specifically, CommScope argues that Dali failed to present evidence proving that the FlexWave meets the district court’s con- struction of the claim term “switching a controller off.” We agree and therefore reverse. Following this same logic, we leave undisturbed the jury’s finding that Wright does not anticipate the challenged claims of the 521 patent.

A

Looking to the first step of the infringement inquiry (claim construction), Dali argued to the district court that the claim term “switching a controller off’ meant “[s]witch- ing a controller to an off status.” Claim Construction Or- der, 2017 WL 6549933, at *12. Dali asserted that the term “off? did not require further definition. Jd. CommScope, on Case: 20-1817 Document:49 Page:10 Filed: 08/24/2021

the other hand, proposed that the claim term meant “[s]witching a controller to a nonoperating state.” Id. The district court agreed with CommScope, noting that the “un- derlying dispute over this term is what switching ‘off does to the controller.” Jd. In so holding, the district court drew a distinction between: (1) when the controller is turned off and (2) the effect on the system of turning the controller off. Id. The district court determined that this clarification was necessary to resolve the parties’ dispute. Jd. Citing O2 Micro Int Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008)).

Dali fails to mount a meaningful appellate challenge to this construction. In a footnote, Dali argues that “CommScope’s premise that the controller itself must be turned ‘off is...literal nonsense,” Cross-Appellant’s Br. 44 n.10, which suggests that the district court’s con- struction of “switching a controller to a nonoperating state” is also “nonsense.” The reason for this is, in Dali’s view, “because something needs to turn the switch back on each time the system goes back to the training phase, and that something is the controller.” Id.

There are several reasons to reject this opaque chal- lenge by Dali. First, an argument that is only made in a footnote of an appellant’s brief is forfeited. SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319-20 (Fed. Cir. 2006) (citations omitted). Second, even if the ar- gument were in the body of the brief, it is insufficiently de- veloped. See Monsanto Co. v. Scruggs, 459 F.3d 1328, 1341 (Fed. Cir. 2006) (“In order for this court to reach the merits of an issue on appeal, it must be adequately developed.” (citations omitted)); Game & Tech. Co. v. Wargaming Grp. Ltd., 942 F.3d 13848, 1350 (Fed. Cir. 2019) (determining that an issue was forfeited where appellant raised it “only [in] one paragraph” in which appellant “fail[ed] to address, let alone show, any specific errors in the Board’s findings’). Finally, and most importantly, it is irreconcilable with Dali’s statements in other portions of its_ brief: Case: 20-1817 Document:49 Page:11 Filed: 08/24/2021

COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 11

(1) asserting that the district court’s construction is “un- challenged,” Cross-Appellant’s Br. 44; and (2) applying the construction in the context of invalidity, td. at 47 (“[c]laim 1 of the 521 Patent requires a controller that . . . places it- self ...in a non-operating state”). Seeing no meaningful challenge, we adopt the district court’s construction requir- ing the controller itself to be turned to a “nonoperating state.” We thus consider whether substantial evidence supports the jury’s finding that the FlexWave infringes claim 1 under this construction.

B

We turn next to the second step of the infringement in- quiry. The key evidence Dali relies on as supporting its contention that the FlexWave meets the claim as properly construed is the following testimony of its expert, Dr. Ken- ney:

[A.] ...So the first step in this operating phase is to switch a controller off. And the [district court] define[d] that [to] mean[] placing the controller in a non-operating state so that you disconnect the signal from the output of the [power amplifier]. So in a sense you turn the feedback off.

And the [internal] documents show a switch. This is the simplest schematic I could find. And I have circled it in red there. And various other schemat- ics show that switch as well. So it meets this limt- tation.

Q. And what did you identify as the switch?

A. Well, the actual switch circuit is a series of tran- sistors that switch the actual RF signal on and off. And it is also associated with a logic that controls it that is on the [Field Programmable Gate Array], all those things being on the [motherboard]. Case: 20-1817 Document:49 Page:12 Filed: 08/24/2021

J.A. 28011 (Trial Tr. 61:4—-17 (Vol. 5-B)) (emphases added). The district court also relied principally on this testimony

in denying JMOL of noninfringement on thisissue. J.A. 14 (quoting J.A. 28011).

The switch that Dr. Kenney circled in red is shown be- low:

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There is some dispute on appeal regarding Dali’s map- ping of the claimed “controller” to the accused FlexWave device. It is unclear from the key portion of Dr. Kenney’s testimony (quoted above) which elements of the accused de- vice he was mapping to the claimed “controller.” It seems reasonable to say that he was pointing to the switch “SW” as the controller, as CommScope argues, but it is also pos- sible that he was pointing to the “logic that controls [the switch] on the FGPA,” as CommScope also recognizes as a possibility, or some combination of the two, as Dali asserts on appeal. In his cross examination, Dr. Kenney appears Case: 20-1817 Document:49 Page:13 Filed: 08/24/2021

COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 13

to have supported the combination mapping, stating that “what [he] described [on direct examination was] a switch and a controller.” J.A. 28047—48 (Trial Tr. 27:25—-28:15

(Vol. 6-A)).

In any case, we need not decide which mapping was presented below because Dali points to no evidence show- ing that any of the following are put in a “nonoperating state” in the accused FlexWave: (1) the switch itself, (2) the controller itself, or (3) the combination of the switch and the controller. The key portion of Dr. Kenney’s testi- mony above never states that either the switch or the con- troller is rendered “nonoperating.” Rather, the testimony points to the result that “you turn the feedback off’ rather than the specific mechanism claimed to achieve that re- sult—‘switching a controller off.” This testimony from Dr. Kenney thus does not provide substantial evidence to support the jury’s finding that the FlexWave meets the dis- trict 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 ofits expert, Dr. Wood, who testified that both the switch and the controller are continuously operating in the accused FlexWave. Appel- lants’ Br. 29-33 (citing J.A. 28252-53, 28255-56 (Trial Tr. 83:6-24, 84:2-4, 84:13-17, 86:12-18, 87:3-6 (Vol. 6-B))). Critically, Dali did not contest Dr. Wood’s under- standing of how the FlexWave operates, stating flatly: “Dr. Kenney did not disagree with how Dr. Wood described the FlexWave and instead explained why that operation does infringe.” Cross-Appellant’s Br. 41. Accordingly, sub- stantial evidence does not support the jury’s finding that the FlexWave met the limitation “switching a controller off’ as properly construed.

On appeal, Dali labels the distinction described above as “hair-splitting” and argues it is irrelevant in light of the Case: 20-1817 Document:49 Page:14 Filed: 08/24/2021

purpose of the invention, which is focused on calculating digital predistortion for a single power amplifier. Cross- Appellant’s Br. 40-43. To focus on this “single power am- plifier,” Dali emphasizes the second portion of the key claim limitation—‘“switching a controller off to disconnect signal representative of the output of the power amplifier.” According to Dali, substantial evidence supports the jury’s verdict because Dr. Kenney testified that the FlexWave “controller operated to turn the switch on and off from the perspective of any one [power amplifier].” Cross-Appel- lant’s Br. 39-48 (citing J.A. 28011). We reject this argu- ment.

First, in a literal infringement case, as we have here, the meaning ascribed to the claims is significant. The bur- den is on a patent owner to show that “the properly con- strued claim reads on the accused device exactly.” Engel Indus., Inc. v. Lockformer Co., 96 F.3d 1398, 1405 (Fed. Cir. 1996) (citation omitted). CommScope’s reliance on the claim terms as construed by the district court is not “hair- splitting,” 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.

Second, regarding Dali’s “single power amplifier” argu- ment, Dali simply ignores the claim requirement that the controller itself is rendered “nonoperating.” Instead, it ar- gues with respect to the FlexWave device that even though “the controller, at a system-wide level, is continuously op- erating, it goes into a ‘nonoperating’ state for each specific [power amplifier] during that [power amplifier]’s operating phase.” Cross-Appellant’s Br. 44. Dali’s admission that the FlexWave controller is “continuously operating,” however, is fatal to its argument on appeal. Before the district court, Dali presented only a literal infringement case, and not a doctrine-of-equivalents alternative. J.A. 34018—19. Thus, Dali’s argument that the FlexWave switch/controller is ef- fectively “nonoperating” because it is not passing a feed- back signal of the power amplifier of interest is irrelevant Case: 20-1817 Document:49 Page:15 Filed: 08/24/2021

COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 15

because Dali failed to produce evidence below to show that the accused controller is literally nonoperating, as the dis- trict court determined was required by the claim.

Furthermore, we agree with CommScope that this ar- gument cannot stand in light of Dali’s arguments of no an- ticipation by Wright. Dali does not contest that Wright’s MUX is a multi-selector switch that can have “N” number of connections. Appellants’ Reply Br. 10; see generally Cross-Appellant’s Br. 46-49. Nor does it contest that when the number of connections is two, Wright’s MUX operates exactly like the selector switch in the FlexWave. Appel- lants’ Reply Br. 10; see generally Cross-Appellant’s Br. 46—49. Instead, in its defense of the jury’s no invalidity verdict, Dali amplifies the significance of the “nonoperat- ing” requirement, highlighting Dr. Kenney’s testimony that Wright’s MUX “also has to have a controller, and you have to put that controller into a non-operating state. That’s not ... disclosed in Wright.” J.A. 28358 (Trial Tr. 58:15-18 (Vol. 7)); Cross-Appellant’s Br. 47 (quoting this portion of the testimony).

Dali cannot simultaneously argue: (1) that the FlexWave infringes by using a switch that is effectively nonoperating for a single power amplifier when feeding back the signal for the other power amplifier, and (2) that Wright does not anticipate, given it has a switch that oper- ates identically to select feedback from multiple power

5 Dali also attempts to distinguish Wright on appeal on the basis that Wright’s MUX uses “capture buffers.” Cross-Appellant’s Br. 47. CommScope correctly responds that this “capture buffer” teaching—which only appears in two paragraphs of Wright, J.A. 32309 (col. 51 ll. 20-54)— is an ancillary teaching regarding an “alternative ap- proach” on which CommScope did not rely. Appellants’ Re- ply Br. 9-10. No reasonable jury could have found this to be a proper basis for distinguishing Wright. Case: 20-1817 Document:49 Page:16 Filed: 08/24/2021

amplifiers. This incongruity is most apparent when com- paring Dali’s description of the claim’s requirements for in- fringement versus invalidity:

Infringement Invalidity

“Claim 1 of the 521 Patent requires a controller that controls a switch and

“CommScope’s premise that the controller itself must be turned ‘off is also

literal nonsense, because something needs to turn the switch back on each time the system goes back to the training phase, and

places itself and the switch in a non-operating state in order to disconnect the [power amplifier] output from the training circuit.”

that something is the con-

troller.” Cross-Appellant’s Br. 47.

Cross-Appellant’s Br. 44

n.10.

This case falls squarely within the principle that a “pa- tent may not, like a nose of wax, be twisted one way to avoid anticipation and another to find infringement.” Am- azon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1348, 1351 (Fed. Cir. 2001) (cleaned up). We therefore reverse the district court’s denial of CommScope’s motion for JMOL of no infringement of the 521 patent and affirm the denial of CommScope’s motion for JMOL of invalidity of the 521 patent over Wright.

II

CommScope’s additional arguments for reversal re- garding the 521 patent are unpersuasive. CommScope ar- gues that Khan and Bauder each anticipate the 521 patent, but its arguments are based on interpretations of the scope and content of the prior art (a fact-intensive inquiry) that conflict with those given by Dali’s expert at trial. The jury was entitled to consider both parties’ Case: 20-1817 Document:49 Page:17 Filed: 08/24/2021

COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 17

experts’ testimony and choose to credit Dali’s expert over CommScope’s in this regard. We will not disturb this weighing of the evidence on appeal.

We have also considered each of CommScope’s argu- ments regarding U.S. Patent No. 9,531,473, including CommScope’s arguments challenging the district court’s denial of CommScope’s motion for JMOL regarding written description and enablement, anticipation, obviousness, and infringement of the ’473 patent, as well as CommScope’s motion for a new trial on the 473 patent. Ad- ditionally, we have considered Dali’s arguments on cross- appeal regarding written description and enablement of CommScope’s asserted patents. We discern no error in the district court’s rulings on any of these issues.

Finally, regarding attorneys’ fees, because the district court’s reasoning remains intact on the issue of prevailing party, J.A. 29, we see no need to remand for reconsidera- tion of the district court’s denial of attorneys’ fees.

CONCLUSION

For the reasons stated above, we reverse the district court’s denial of CommScope’s motion for JMOL of no in- fringement of the 521 patent and affirm the judgment of the district court in all other respects.

AFFIRMED-IN-PART AND REVERSED-IN-PART COSTS

No costs.