Tomita Technologies USA, LLC v. Nintendo Co., Ltd. ( 2017 )


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  •        NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    TOMITA TECHNOLOGIES USA, LLC,
    TOMITA TECHNOLOGIES INTERNATIONAL, INC.,
    Plaintiffs-Appellants
    v.
    NINTENDO CO., LTD.,
    NINTENDO OF AMERICA INC.,
    Defendants-Appellees
    ______________________
    2016-2015
    ______________________
    Appeal from the United States District Court for the
    Southern District of New York in No. 1:11-cv-04256-JSR,
    Judge Jed S. Rakoff.
    ______________________
    Decided: March 17, 2017
    ______________________
    IAN DIBERNARDO, Stroock & Stroock & Lavan LLP,
    New York, NY, argued for plaintiffs-appellants. Also
    represented by JOSEPH DIAMANTE, KENNETH STEIN.
    JAMES S. BLANK, Arnold & Porter Kaye Scholer LLP,
    New York, NY, argued for defendants-appellees. Also
    represented by SCOTT G. LINDVALL; PAUL ISAAC
    MARGULIES, Washington, DC.
    2                    TOMITA TECHS. USA, LLC   v. NINTENDO CO.
    ______________________
    Before PROST, Chief Judge, BRYSON and WALLACH, Circuit
    Judges.
    WALLACH, Circuit Judge.
    The parties’ patent infringement dispute concerning
    the 3DS, a handheld gaming console sold by Appellees
    Nintendo Co., Ltd. and Nintendo of America Inc. (togeth-
    er, “Nintendo”), returns to this court. Appellants Tomita
    Technologies USA, LLC and Tomita Technologies Inter-
    national, Inc. (together, “Tomita”) sued Nintendo in the
    U.S. District Court for the Southern District of New York
    (“District Court”), alleging that the 3DS infringes claim 1
    of U.S. Patent No. 7,417,664 (“the ’664 patent”). A jury
    found that the 3DS infringes claim 1 of the ’664 patent.
    We reversed and remanded that finding because it rested
    upon an incorrect construction of “offset presetting
    means” in claim 1. See Tomita Techs. USA, LLC v. Nin-
    tendo Co. (Tomita I), 594 F. App’x 657, 659–64 (Fed. Cir.
    2014). The District Court held a bench trial on remand
    and concluded that the 3DS does not infringe “offset
    presetting means” in claim 1, as properly construed. See
    Tomita Techs. USA, LLC v. Nintendo Co. (Tomita II), 
    182 F. Supp. 3d 107
    , 113–18 (S.D.N.Y. 2016).
    Tomita appeals the District Court’s noninfringement
    finding. We have subject matter jurisdiction pursuant to
    28 U.S.C. § 1295(a)(1) (2012). We affirm.
    BACKGROUND
    The subject dispute involves technology that incorpo-
    rates three-dimensional (i.e., 3D) images, which “typically
    [are] captured with two cameras providing slightly differ-
    ent images known as stereoscopic images. A viewer
    perceives a 3D effect when each eye separately views a
    stereoscopic image intended for that eye. The strength of
    the 3D effect varies with the viewing conditions.” Tomita
    TOMITA TECHS. USA, LLC   v. NINTENDO CO.                 3
    I, 594 F. App’x at 659. Because the subject appeal has a
    long history involving technical facts, we recount only
    those details necessary to dispose of the issues before us.
    I. The ’664 Patent
    Entitled “Stereoscopic Image Picking Up and Display
    System Based Upon Optical Axes Cross-Point Infor-
    mation,” the ’664 patent generally discloses “a stereoscop-
    ic video image pick-up and display system which is
    capable of providing the stereoscopic video image having a
    natural stereopsis even if the video image producing
    playback conditions are different.” ’664 patent col. 2
    l. 65–col. 3 l. 2. Claim 1 recites
    [a] stereoscopic video image pick-up and display
    system comprising:
    a stereoscopic video image pick-up device
    including two video image pick-up means
    for outputting video information from said
    pick-up means;
    a stereoscopic video image display device
    for displaying different video images for
    the eyes of a viewer; and
    a medium for transmitting video image in-
    formation from said stereoscopic video im-
    age pick-up device to said stereoscopic
    video image display device,
    in which said stereoscopic video image
    pick-up device includes cross-point meas-
    uring means for measuring CP infor-
    mation on the cross-point (CP) of optical
    axes of said pick-up means and outputs in-
    formation including the CP information
    and video image information to said medi-
    um; and
    4                    TOMITA TECHS. USA, LLC   v. NINTENDO CO.
    in which said stereoscopic video image
    display device includes offset presetting
    means for offsetting and displaying said
    different video images based upon said
    video image information, said cross-point
    information[,] and information on the size
    of the image which is displayed by said
    stereoscopic video image display device.
    
    Id. col. 21
    ll. 44–65 (emphases added). “Offset presetting
    means” in claim 1, a means-plus-function limitation, 1
    means “timing control unit 32, signal switch 40, switch
    control unit 41, and synthesis frame memory 50 described
    in Figure 3 and column 9 line 44 to column 10 line 29 and
    equivalents thereof” in the ’664 patent. Tomita I, 594 F.
    App’x at 663 (footnote omitted).
    A means-plus-function limitation must recite a func-
    tion and a corresponding structure. See, e.g., Ibormeith
    1    “A means-plus-function limitation contemplated
    by 35 U.S.C. § 112, ¶ 6 . . . recites a function to be per-
    formed rather than definite structure or materials for
    performing that function.” Chiuminatta Concrete Con-
    cepts, Inc. v. Cardinal Indus., Inc., 
    145 F.3d 1303
    , 1307
    (Fed. Cir. 1998); see 35 U.S.C. § 112, ¶ 6 (2006) (explain-
    ing that “[a]n element in a claim for a combination may be
    expressed as a means or step for performing a specified
    function without the recital of structure, material, or acts
    in support thereof, and such claim shall be construed to
    cover the corresponding structure, material, or acts de-
    scribed in the specification and equivalents thereof”).
    Congress amended § 112 when it passed the Leahy-Smith
    America Invents Act, Pub. L. No. 112-29, § 4(c), 125 Stat.
    284, 296 (2011), but the amended statute does not apply
    here because the application leading to the ’664 patent
    was filed before the amended statute’s effective date, 
    id. § 4(e),
    125 Stat. at 297.
    TOMITA TECHS. USA, LLC   v. NINTENDO CO.                   5
    IP, LLC v. Mercedes-Benz USA, LLC, 
    732 F.3d 1376
    , 1379
    (Fed. Cir. 2013). Only the disputed limitation’s structure
    is at issue. Here, the relevant corresponding structure of
    the limitation contains two parts: the timing control unit
    32 “performs the ‘offsetting’ portion of the claim function,”
    whereas “[t]he ‘displaying’ portion of the claim function is
    performed by the switch control unit 41 presetting the
    timing of switching of the signal switch 40 for writing of
    video data into synthesis frame memory 50.” Tomita I,
    594 F. App’x at 663 (internal quotation marks, brackets,
    and citation omitted).
    II. The 3DS
    Although primarily designed to play video games, the
    3DS has a camera application and an augmented reality
    application. Similar to “offset presetting means” in claim
    1 of the ’664 patent, the 3DS produces 3D images in these
    applications by capturing and offsetting different images
    on a grid with horizontal and vertical axes. See J.A. 5191,
    5193–94. Tomita alleges that these applications, de-
    scribed in greater detail below, infringe the disputed
    limitation.
    III. Procedural Posture
    The District Court found that the 3DS neither literal-
    ly infringes “offset presetting means” in claim 1 of the
    ’664 patent nor infringes that limitation under the doc-
    trine of equivalents. See Tomita 
    II, 182 F. Supp. 3d at 113
    –18. The District Court’s analysis consisted of two
    parts, one that examined the “offsetting” and “displaying”
    portions under the function-way-result test and another
    that examined those portions under the insubstantial
    differences test. See 
    id. Under both
    tests, the District
    Court found that the 3DS and the disputed limitation do
    not possess equivalent structures. See 
    id. 6 TOMITA
    TECHS. USA, LLC   v. NINTENDO CO.
    DISCUSSION
    I. Standard of Review
    “Following a bench trial, we review a district court’s
    conclusions of law de novo and its findings of fact for clear
    error.” Allergan, Inc. v. Sandoz Inc., 
    796 F.3d 1293
    , 1303
    (Fed. Cir. 2015) (citation omitted). “Infringement, both
    literal and under the doctrine of equivalents, is an issue of
    fact . . . .” Roton Barrier, Inc. v. Stanley Works, 
    79 F.3d 1112
    , 1125 (Fed. Cir. 1996) (citation omitted). “A factual
    finding” of noninfringement “is clearly erroneous if,
    despite some supporting evidence, we are left with a
    definite and firm conviction that a mistake has been
    made.” 
    Allergan, 796 F.3d at 1303
    (citations omitted).
    II. The District Court Properly Concluded That the 3DS
    Does Not Infringe Claim 1 of the ’664 Patent
    Tomita contests the District Court’s conclusion that
    the 3DS does not infringe literally or under the doctrine of
    equivalents the “offset presetting means” limitation in
    claim 1 of the ’664 patent. See Appellants’ Br. 44–64.
    Tomita alleges that the District Court committed legal
    and factual errors in its analysis of the “offsetting” and
    “displaying” portions of the corresponding structure in the
    disputed limitation. 2 See 
    id. at 44–57
    (discussing legal
    2 Tomita raises several arguments in the back-
    ground section of its brief, see, e.g., Appellants’ Br. 24
    (contesting certain District Court findings), and in foot-
    notes, see, e.g., 
    id. at 51
    n.22 (contesting other District
    Court findings). Tomita has waived those arguments,
    though we address some of them for completeness. See In
    re Baxter Int’l, Inc., 
    678 F.3d 1357
    , 1362 (Fed. Cir. 2012)
    (holding that a party waives an argument that it raises in
    the background section of its brief, but not in the argu-
    ment section); SmithKline Beecham Corp. v. Apotex Corp.,
    TOMITA TECHS. USA, LLC   v. NINTENDO CO.                 7
    errors), 58–64 (discussing factual errors). After setting
    forth the applicable legal framework, we address Tomita’s
    arguments on a portion-by-portion basis.
    A. Legal Framework
    “To prove infringement, a [party] must prove the [lit-
    eral] presence of each and every claim element or its
    equivalent” in the accused product. Star Sci., Inc. v. R.J.
    Reynolds Tobacco Co., 
    655 F.3d 1364
    , 1378 (Fed. Cir.
    2011) (citation omitted).     “Literal infringement of a
    means-plus-function limitation requires that the relevant
    structure in the accused device [(1)] perform the identical
    function recited in the claim and [(2)] be identical or
    equivalent to the corresponding structure in the specifica-
    tion.” Gen. Protecht Grp., Inc. v. Int’l Trade Comm’n, 
    619 F.3d 1303
    , 1312 (Fed. Cir. 2010) (emphasis added) (inter-
    nal quotation marks and citation omitted). Because the
    disputed limitation and the 3DS share the same function,
    the instant appeal concerns only whether the disputed
    limitation and the 3DS contain equivalent structures.
    The Supreme Court has described the test for structural
    equivalence in the means-plus-function context as “an
    application of the doctrine of equivalents in a restrictive
    role.” Warner-Jenkinson Co. v. Hilton Davis Chem. Co.,
    
    520 U.S. 17
    , 28 (1997). Thus, literal infringement and
    infringement under the doctrine of equivalents turn on a
    single question: whether structural equivalency exists
    between the disputed limitation and the accused product.
    See 
    id. We apply
    “two articulations of the test for equiva-
    lence,” the function-way-result test and the insubstantial
    difference test. Voda v. Cordis Corp., 
    536 F.3d 1311
    , 1326
    
    439 F.3d 1312
    , 1320 (Fed. Cir. 2006) (“[A]rguments raised
    in footnotes are not preserved.”).
    8                     TOMITA TECHS. USA, LLC   v. NINTENDO CO.
    (Fed. Cir. 2008). We describe these tests in greater detail
    below.
    B. The ’664 Patent and the 3DS Do Not Possess Equiva-
    lent “Offsetting” Structures
    Tomita contests the District Court’s finding that “off-
    set presetting means” in claim 1 of the ’664 patent and
    the 3DS do not possess equivalent offsetting structures.
    Appellants’ Br. 44–52. In so doing, Tomita challenges the
    District Court’s findings under both the function-way-
    result test and the insubstantial differences test. See 
    id. We address
    Tomita’s arguments on a test-by-test basis.
    1. The Function-Way-Result Test
    The function-way-result test provides that “an ele-
    ment in the accused device is equivalent to a claim limita-
    tion if it performs substantially the same function in
    substantially the same way to obtain substantially the
    same result.” 
    Voda, 536 F.3d at 1326
    (internal quotation
    marks and citation omitted). Because the parties do not
    dispute that the claim limitation and accused device share
    the same function, our analysis focuses on the “way” and
    “result” prongs of the test. In assessing each prong, we
    must determine whether the way the accused product
    performs the function or the result thereof is “substantial-
    ly different” from the way or result of the subject patent.
    Odetics, Inc. v. Storage Tech. Corp., 
    185 F.3d 1259
    , 1267
    (Fed. Cir. 1999).
    The District Court found “that Tomita fails both the
    way and result prongs of the test.” Tomita II, 182 F.
    Supp. 3d at 115. With respect to the way prong, the
    District Court identified the collective effect of three
    aspects of the 3DS that set its ways apart from the way
    described in the disputed limitation:
    First, [the 3DS’s image] . . . transformations can
    [a]ffect multiple adjustments to an image simul-
    taneously—for instance, vertical translations as
    TOMITA TECHS. USA, LLC   v. NINTENDO CO.                    9
    well as horizontal translations—while the ’664
    [patent’s] relative timing offset is limited to
    [a]ffecting horizontal translations. Second, [the
    3DS’s ability to] implement[] adjustments in soft-
    ware rather than hardware provides more flexibil-
    ity, because software can be updated and the
    [3DS’s graphics processing unit] performs other
    functions related to gaming. Third, [the 3DS’s
    ability to] render[] both images [used to create the
    3D effect] allows for camera calibration to correct
    camera misalignment.
    
    Id. (internal citations
    omitted). The District Court also
    found another “individual difference that is substantial on
    its own.” 
    Id. According to
    the District Court, the disput-
    ed limitation offsets certain images only by adding a
    single value along the horizontal axis, whereas “the 3DS’s
    [image] transformation[s] . . . also accomplish rotations
    and scalings,” thus demonstrating that the 3DS considers
    other      factors    that   cause   its   “transformation[s
    to] . . . operate” in ways “substantially different” from the
    disputed limitation. 
    Id. (citation omitted).
         Turning to the result prong, the District Court con-
    cluded that the disputed limitation and the 3DS yield
    substantially different results. The District Court found
    that “[t]he result of the structure in the ’664 patent is
    pixel data stored in frame memory . . . [,] whereas the
    3DS result is an image displayed on an LCD screen.” 
    Id. The District
    Court also found that “the ’664 patent creates
    and stores a single, stereoscopic image[] before displaying
    it,” whereas the 3DS does not. 
    Id. at 116
    (citation omit-
    ted).
    Tomita does not challenge the District Court’s factual
    findings; instead, it asserts various legal errors, none of
    which are persuasive. First, Tomita contends that the
    District Court improperly applied the function-way-result
    test because it is “[i]rrelevant.” Appellants’ Br. 29; see 
    id. 10 TOMITA
    TECHS. USA, LLC   v. NINTENDO CO.
    at 30. Although the Supreme Court has acknowledged
    that the test “often provides a poor framework for analyz-
    ing” non-mechanical products or processes, Warner-
    
    Jenkinson, 520 U.S. at 39
    –40, it has never disavowed the
    application of that test under particular circumstances
    and has left it to our court to decide the test’s application
    in future cases, 
    id. at 40.
    Indeed, we have applied the test
    to patents covering products and processes similar to the
    ’664 patent. See, e.g., Brilliant Instruments, Inc. v.
    GuideTech, LLC, 
    707 F.3d 1342
    , 1346–49 (Fed. Cir. 2013)
    (analyzing a patent that discloses circuits that measure
    the timing errors of digital signals in high speed micro-
    processors).
    Second, Tomita avers that the District Court “flipped
    [the] equivalence analysis on its head” in the function-
    way-result test by “evaluating equivalence in the context
    of the accused device,” “rather than evaluating equiva-
    lence in the context of the invention.” Appellants’ Br. 25
    (citation omitted). However, evaluating whether the
    accused product possesses something of significance that
    is not found in the corresponding structure of the subject
    patent is precisely what the District Court was required
    to assess. See, e.g., Gemstar-TV Guide Int’l, Inc. v. Int’l
    Trade Comm’n, 
    383 F.3d 1352
    , 1363 (Fed. Cir. 2004)
    (holding that an accused product did not infringe because
    it “relied on a different technology that could produce
    results unattainable by” the corresponding structure in
    the subject patent).
    Third, Tomita contends that the District Court found
    under the way prong “that software implementation
    essentially could never be equivalent to a hardware
    implementation” and that such a finding conflicts with
    our decision in Overhead Door Corp. v. Chamberlain
    Group, Inc., 
    194 F.3d 1261
    (Fed. Cir. 1999). Appellants’
    Br. 32; see 
    id. at 39–41.
    In support of its argument,
    Tomita quotes the following passage from Overhead Door:
    “it is a fundamental and well understood tenet of the
    TOMITA TECHS. USA, LLC   v. NINTENDO CO.                  11
    computing art that any software process can be trans-
    formed into an equivalent hardware process, and any
    hardware process can be transformed into an equivalent
    software process.” 
    Id. at 20–21
    (quoting 194 F.3d at
    1269
    ). Although we found in Overhead Door that the
    expert’s testimony precluded summary judgment of non-
    infringement, we did not hold that a software implemen-
    tation of a particular function is invariably equivalent to a
    hardware implementation of the same function. 
    See 194 F.3d at 1269
    –71. The District Court therefore did not err
    in declining to rely upon the quoted passage from Over-
    head Door.
    2. The Insubstantial Differences Test
    Under the insubstantial differences test, “an equiva-
    lent results from an insubstantial change which adds
    nothing of significance to the structure, material[,] or acts
    disclosed in the” relevant patent. Valmont Indus., Inc. v.
    Reinke Mfg. Co., 
    983 F.2d 1039
    , 1043 (Fed. Cir. 1993).
    The District Court found substantial differences between
    the offsetting structure in the 3DS and in the “offset
    presetting means” limitation in claim 1 of the ’664 patent.
    The District Court found that “the hardware[-]based
    timing mechanism of the ’664 patent cannot provide the
    same functionality as the more flexible software-based
    transformation[s] . . . in the 3DS, which can [a]ffect”
    several different image transformations at the same time.
    Tomita 
    II, 182 F. Supp. 3d at 117
    (citations omitted). The
    District Court also found that the 3DS uses transfor-
    mations to render new images, effectively changing the
    location of all the images’ pixels along both the horizontal
    and vertical axes of a grid, whereas the ’664 patent only
    offsets a single image along the horizontal axis. See 
    id. Tomita does
    not contest the District Court’s factual
    findings; instead, it avers that the District Court “erred as
    a matter of law in relying on the 3DS’s camera calibration
    feature” in its analysis, “which is unrelated to the func-
    12                   TOMITA TECHS. USA, LLC   v. NINTENDO CO.
    tion of the offset presetting means.” Appellants’ Br. 49.
    Tomita predicates its argument on the District Court’s
    statement that “[a] person of ordinary skill in the art
    would consider the[] differences to add something of
    significance to the ’664 patent’s offsetting structure,
    including because they allow the 3DS to correct for camera
    calibration.” Tomita 
    II, 182 F. Supp. 3d at 117
    (emphasis
    added) (citation omitted).
    The District Court’s opinion belies Tomita’s argument.
    None of the District Court’s substantial differences find-
    ings rely upon camera calibration; instead, those findings
    rely upon differences in software and hardware, as well as
    image transformations. See 
    id. Although the
    District
    Court found that these differences result in significant
    additions to the 3DS, like camera calibration, that does
    not mean that the District Court equated the results of
    the substantial differences with the differences them-
    selves. Even if the District Court improperly considered
    camera calibration, it nonetheless found that the struc-
    ture that performs offsetting in the 3DS is substantially
    different from the structure in the disputed limitation, see
    
    id., and Tomita
    has not presented any evidence showing
    why these structures are not substantially different, see
    generally Appellants’ Br.
    Tomita also avers that the District Court “erred as a
    matter of law in failing to evaluate equivalence for the
    3DS’s mode of operation in which images are displayed
    from an SD card” because “a product that infringes a
    patent only part of the time, or in certain modes of opera-
    tion, is still infringing.” 
    Id. at 51
    (citation omitted).
    According to Tomita, the District Court “evaluated equiv-
    alence only for the 3DS’s mode of operation in which it
    performs” multiple image transformations at the same
    time and corrects for camera calibration. 
    Id. at 51
    –52.
    Even if Tomita is correct that the District Court evaluated
    equivalence only for one 3DS mode of operation, that does
    not change the fact that the District Court found several
    TOMITA TECHS. USA, LLC   v. NINTENDO CO.                  13
    other substantial differences between the ’664 patent and
    the 3DS, see Tomita 
    II, 182 F. Supp. 3d at 116
    –18, such
    that the District Court properly found no infringement.
    3. Tomita’s Remaining Arguments Fail
    Tomita raises additional arguments that we find un-
    persuasive. Tomita alleges that the District Court “im-
    properly    merge[d]”    the    function-way-result    and
    insubstantial differences tests. Appellants’ Br. 45. To-
    mita bases its argument on the District Court’s statement
    that “if two structures known to perform the same func-
    tion accomplish it significantly differently, they are not
    interchangeable.” 
    Id. at 46–47
    (quoting Tomita II, 182 F.
    Supp. 3d at 117 (emphasis added)).
    The District Court’s opinion does not support Tomita’s
    argument. The quoted passage appears in the portion of
    the District Court’s opinion analyzing the results of the
    insubstantial differences test and, in particular, address-
    ing the known interchangeability of certain techniques.
    Tomita 
    II, 182 F. Supp. 3d at 117
    . The District Court
    neither stated that a “significantly differently” test con-
    trolled its inquiry, nor repeated “significantly differently”
    in its analysis. See 
    id. at 113–18.
    “We will not find legal
    error based upon an isolated statement stripped from its
    context.” VirnetX Inc. v. Apple Inc., 665 F. App’x 880, 886
    (Fed. Cir. 2016).
    To the extent that Tomita suggests that the District
    Court was required to examine evidence on known inter-
    changeability, see Appellants’ Br. 44–49, that position has
    no support in the law. The Supreme Court has stated
    that
    the particular linguistic framework used is less
    important than whether the test is probative of
    the essential inquiry: Does the accused product or
    process contain elements identical or equivalent to
    each claimed element of the patented invention?
    14                    TOMITA TECHS. USA, LLC   v. NINTENDO CO.
    Different linguistic frameworks may be more suit-
    able to different cases, depending on their particu-
    lar facts. A focus on individual elements and a
    special vigilance against allowing the concept of
    equivalence to eliminate completely any such ele-
    ments should reduce considerably the imprecision
    of whatever language is used. An analysis of the
    role played by each element in the context of the
    specific patent claim will thus inform the inquiry
    as to whether a substitute element matches the
    function, way, and result of the claimed element,
    or whether the substitute element plays a role
    substantially different from the claimed element.
    
    Warner-Jenkinson, 520 U.S. at 40
    . The District Court
    conducted a comprehensive comparison of the “offsetting”
    structures in the 3DS and the ’664 patent and, thus,
    examined equivalency at a level that comports with what
    precedent demands. See Tomita 
    II, 182 F. Supp. 3d at 117
    . Therefore, the District Court properly concluded
    that the 3DS does not infringe claim 1 of the ’664 patent.
    C. The Court Need Not Address Whether the ’664 Patent
    and the 3DS Possess Equivalent “Displaying” Structures
    Tomita challenges several aspects of the District
    Court’s finding that the 3DS and the disputed limitation
    of the ’664 patent do not possess equivalent displaying
    structures. See Appellants’ Br. 53–64. However, we need
    not address these arguments because Tomita has failed to
    demonstrate that the 3DS and the disputed limitation
    possess equivalent offsetting structures, and a party will
    prevail on infringement only if it establishes the literal
    “presence of each and every claim element or its equiva-
    lent” in the accused product. Star 
    Sci., 655 F.3d at 1378
    (emphasis added) (citation omitted).
    TOMITA TECHS. USA, LLC   v. NINTENDO CO.              15
    CONCLUSION
    We have considered Tomita’s remaining arguments
    and find them unpersuasive. Accordingly, the final judg-
    ment of the U.S. District Court for the Southern District
    of New York is
    AFFIRMED