Commscope Technologies LLC v. Dali Wireless Inc. ( 2021 )

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
2 COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC.
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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Id. Fig. 3 (depicting training mode). !
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
6 COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC.
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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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2 U.S. Patent No. 6,587,514.
3° US. Patent Application Publication
No. US 2003/0035494.
4 U.S. Patent No. 5,959,499.
Case: 20-1817 Document:49 Page:8 _ Filed: 08/24/2021
8 COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC.
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
10 COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC.
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
12 COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC.
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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Mixer/BPF (ED) eee
Mixer/BPF + —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
16 COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC.
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.