Case 2:13-cv-00633-JRG Document 178 Filed 10/13/15 Page 1 of 13 PageID #: 7777
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`
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`DATAQUILL LIMITED,
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`Plaintiff,
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`v.
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`ZTE CORPORATION, ET AL.,
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` Defendant.
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`CASE NO. 2:13-CV-633-JRG
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`CASE NO. 2:13-CV-634-JRG
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`DATAQUILL LIMITED,
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`Plaintiff,
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`v.
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`ZTE CORPORATION, ET AL.,
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` Defendant.
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is the Renewed Motion for Judgment as a Matter of Law, or
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`Alternatively for Remittitur and/or a New Trial, Pursuant to Federal Rules of Civil Procedure 50
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`and 59 (Dkt. No. 1701) (“Mot.”) filed by Defendant ZTE (USA) Inc. (“ZTE”). Plaintiff
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`DataQuill Limited (“DataQuill”) opposes the Motion. (Dkt. No. 171 (“Resp.”).) For the reasons
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`set forth below, the Court finds that ZTE’s Motion should be DENIED as to the issues of the
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`October 13, 1993 Priority Date, Validity of the Patents-in-Suit, and the alleged Erroneous Claim
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`Constructions. The damages issues raised by ZTE’s Motion are CARRIED.
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`                                                            
`1 Unless otherwise indicated, all references to the docket are to filings from the -633 case.
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`1
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`Case 2:13-cv-00633-JRG Document 178 Filed 10/13/15 Page 2 of 13 PageID #: 7778
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`I. BACKGROUND
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`The Court held a jury trial in this case on June 15, 2015, and the jury returned a
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`unanimous verdict on June 18, 2015. The jury found that that the asserted claims were not
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`invalid; that the asserted claims were infringed; that ZTE had willfully infringed; and that
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`$31,500,00.00 was the “sum of money, if paid now in cash” which “would fairly and reasonably
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`compensate DataQuill for ZTE’s infringement up through March 2015.” (Dkt. No. 29 in the -634
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`case (“Verdict”).) ZTE asserts that, in the nearly 20 hours of testimony presented at trial, the jury
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`did not have sufficient evidence for its findings.
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`II. Applicable Law
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`Upon a party’s renewed motion for judgment as a matter of law following a jury verdict,
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`the Court asks whether “the state of proof is such that reasonable and impartial minds could
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`reach the conclusion the jury expressed in its verdict.” Fed. R. Civ. P. 50(b); Am. Home Assur.
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`Co. v. United Space Alliance, 378 F.3d 482, 487 (5th Cir. 2004). “The grant or denial of a
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`motion for judgment as a matter of law is a procedural issue not unique to patent law, reviewed
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`under the law of the regional circuit in which the appeal from the district court would usually
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`lie.” Finisar Corp. v. DirectTV Group, Inc., 523 F.3d 1323, 1332 (Fed. Cir. 2008). “A JMOL
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`may only be granted when, ‘viewing the evidence in the light most favorable to the verdict, the
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`evidence points so strongly and overwhelmingly in favor of one party that the court believes that
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`reasonable jurors could not arrive at any contrary conclusion.’” Versata Software, Inc. v. SAP
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`Am., Inc., 717 F.3d 1255, 1261 (Fed. Cir. 2013) (quoting Dresser-Rand Co. v. Virtual
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`Automation, Inc., 361 F.3d 831, 838 (5th Cir. 2004)).
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`Under Fifth Circuit law, a court is to be “especially deferential” to a jury’s verdict, and
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`must not reverse the jury’s findings unless they are not supported by substantial evidence.
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`2
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`Case 2:13-cv-00633-JRG Document 178 Filed 10/13/15 Page 3 of 13 PageID #: 7779
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`Baisden v. I’m Ready Productions, Inc., 693 F.3d 491, 499 (5th Cir. 2012). “Substantial evidence
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`is defined as evidence of such quality and weight that reasonable and fair-minded men in the
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`exercise of impartial judgment might reach different conclusions.” Threlkeld v. Total Petroleum,
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`Inc., 211 F.3d 887, 891 (5th Cir. 2000). A motion for judgment as a matter of law must be denied
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`“unless the facts and inferences point so strongly and overwhelmingly in the movant’s favor that
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`reasonable jurors could not reach a contrary conclusion.” Baisden 393 F.3d at 498 (citation
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`omitted). However, “[t]here must be more than a mere scintilla of evidence in the record to
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`prevent judgment as a matter of law in favor of the movant.” Arismendez v. Nightingale Home
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`Health Care, Inc., 493 F.3d 602, 606 (5th Cir. 2007).
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`In evaluating a motion for judgment as a matter of law, a court must “draw all reasonable
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`inferences in the light most favorable to the verdict and cannot substitute other inferences that
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`[the court] might regard as more reasonable.” E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731 F.3d
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`444, 451 (5th Cir. 2013) (citation omitted). However, “[c]redibility determinations, the weighing
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`of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not
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`those of a judge.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). “[T]he
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`court should give credence to the evidence favoring the nonmovant as well as that ‘evidence
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`supporting the moving party that is uncontradicted and unimpeached, at least to the extent that
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`that evidence comes from disinterested witnesses.’” Id. at 151 (citation omitted).
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`III. Analysis
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`A.
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`Validity
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`An issued patent is presumed valid. 35 U.S.C. § 282; Fox Grp., Inc. v. Cree, Inc., 700
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`F.3d 1300, 1304 (Fed. Cir. 2012). ZTE has the burden to show by clear and convincing evidence
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`that the asserted claims were anticipated by or obvious over the prior art. Microsoft Corp. v. i4i
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`3
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`Case 2:13-cv-00633-JRG Document 178 Filed 10/13/15 Page 4 of 13 PageID #: 7780
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`Ltd. P’ship, 131 S. Ct. 2238, 2242 (2011). To prevail on judgment as a matter of law, moreover,
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`ZTE must show that no reasonable jury would have a legally sufficient evidentiary basis to find
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`for DataQuill. Fed. R. Civ. P. 50. “Generally, a party seeking to invalidate a patent as obvious
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`must demonstrate by clear and convincing evidence that a skilled artisan would have had reason
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`to combine the teaching of the prior art references to achieve the claimed invention, and that the
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`skilled artisan would have had a reasonable expectation of success from doing so.” In re
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`Cyclobenzaprine Hydrochloride, 676 F.3d 1063, 1068–69 (Fed. Cir. 2012) (internal quotation
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`marks omitted).
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`ZTE argues that “[n]o reasonable jury could have concluded that the patents-in-suit are
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`valid in light of ZTE’s clear evidence of invalidity.” (Mot. at 23.) More specifically, ZTE
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`argues that “all of the asserted claims are invalid based on alternative grounds involving three
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`independent primary prior art references—the Titus EO Application, IBM Simon, and [U.S.
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`Patent No. 5,426,594 (“the Wright patent”)].” (Id. at 24.)
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`1) The Priority Date
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`As an initial matter, the Court notes that two of the three primary prior art references, the
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`Titus EO Application and IBM Simon, do not qualify as prior art if the Patents-in-Suit are
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`entitled to the priority date of United Kingdom Application No. 9321133 (“UK Application”),
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`the application to which the Patents-in-Suit claim priority. ZTE argues that the Court should find
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`that the priority date of the Patents-in-Suit is actually later than the October 13, 1993 date of the
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`UK Application, and, in fact, is sometime in 1994. If, but only if, the 1994 priority date applies
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`would the Titus EO Application and IBM Simon references qualify as prior art. ZTE argues that,
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`because two limitations of the Patents-in-Suit, the “microphone” and the “integral cellular
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`phone,” were not present in the UK Application, the Patents-in-Suit cannot claim priority from
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`4
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`Case 2:13-cv-00633-JRG Document 178 Filed 10/13/15 Page 5 of 13 PageID #: 7781
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`the 1993 UK Application. (Mot. at 18–19.) ZTE argues that “DataQuill admitted that material
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`was added between the filing of the UK Application and the [International Application No.
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`PCT/GB94/02101 (PCT Application)].” (Id. at 19.) ZTE further argues that “DataQuill’s
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`witnesses testified that there is no actual disclosure in the UK Application of either ‘microphone’
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`or ‘integral cellular phone.’” (Id.)
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`DataQuill responds by arguing that “Dr. Rhyne testified that the UK Application
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`discloses every limitation of the asserted claims” and “prepared a lengthy document (DX 57)
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`explaining his opinions and identifying the specific passages where the UK Application supports
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`all the claim limitations.” (Resp. at 27–28.) DataQuill also points to the following excerpt from
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`the UK Application as proof of the “cellular phone technology” limitation:
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`Also, in the case of the pen 10 without a base station for the modem, the
`pen could be provided with cellular phone technology rather than a socket
`for a telephone plug so that data could be downloaded via a telephony link
`without needing to be connected to a physical telephone cable.
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`(DX 18, at 19.) DataQuill argues that “[t]here is no dispute that this passage discloses a cellular
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`phone.” (Resp. at 30). As support, DataQuill points to the following testimony from Dr.
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`Konchitsky:
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`Q. Okay. But you agree that the disclosure speaks to a cellular phone, and
`that's why you’ve drawn it here, correct?
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`A. Yes.
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`(6/17/2015 A.M. Trial Tr. (Konchitsky), Dkt. No. 40 in the -634 case, at 82:11–14); see also
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`(6/18/2015 A.M. Trial Tr. (Rhyne), Dkt. No. 43 in the -634 case, at 91:11–92:9.) DataQuill
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`further argues that a “cellular phone necessarily discloses a microphone,” (Resp. at 30), and
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`points to the following testimony from Dr. Konchitsky as support:
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`Q. (By Mr. Payne) A cellular phone, by definition, has a microphone,
`correct, sir?
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`5
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`Case 2:13-cv-00633-JRG Document 178 Filed 10/13/15 Page 6 of 13 PageID #: 7782
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`A. Correct.
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`(6/17/2015 A.M. Trial Tr. (Konchitsky), Dkt. No. 40 in the -634 case, at 81:15–20); see also
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`(6/18/2015 A.M. Trial Tr. (Rhyne), Dkt. No. 43 in the -634 case, at 92:7–9.)
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`The parties dispute whether this question is one of law or of fact. Compare (Mot. at 18)
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`with (Resp. at 26.) After consideration of the cited case law and the arguments from both parties,
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`the Court finds that the question of priority, as presented in this case, is a question of fact and
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`one already considered by the jury prior to rendering its verdict. As DataQuill notes, the proper
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`question that was posed to the jury was whether the UK Application adequately disclosed the
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`claim limitations identified by ZTE. (Id.) The jury was presented with the excerpt from the UK
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`Application which DataQuill argues disclosed the “microphone” and the “integral cellular
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`phone.” Further, both experts presented the jury with testimony regarding whether this passage
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`did or did not disclose these elements. See (6/16/2015 P.M. Trial Tr. (Konchitsky), Dkt. No. 38
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`in the -634 case, at 117:2–125:17; 6/18/2015 A.M. Trial Tr. (Rhyne), Dkt. No. 43 in the -634
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`case, at 89:1–94:12.)
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`The jury was properly instructed on the law, was free to judge the credibility of the
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`witnesses, and weigh competing evidence. After consideration of all the presented evidence, the
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`jury found that the Patents-in-Suit were valid. The Court will not substitute its judgment for that
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`of the jury under the clear and convincing standard on the disputed issues of fact underlying the
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`validity decision, including the decision of the priority date of the Patents-in-Suit. The Court
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`does not find that no reasonable jury could have found that the Patents-in-Suit were not entitled
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`to an October 13, 1993 priority date. The Court further does not find that no reasonable jury
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`could have found the patents in suit to not be invalid.
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`2) The “Hand-Holdable” Limitation
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`The Court initially notes that the Titus EO Application does not qualify as prior art if the
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`6
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`Case 2:13-cv-00633-JRG Document 178 Filed 10/13/15 Page 7 of 13 PageID #: 7783
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`priority date is October 13, 1993. However, even if the jury had found that the Patents-in-Suit
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`were not entitled to an October 13, 1993 priority date, there was separate and substantial
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`evidence to support the jury’s finding that the Patents-in-Suit were not invalid.
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`ZTE argues that “DataQuill’s expert, Dr. Rhyne, based part of his validity analysis of the
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`Titus EO Application on an improper interpretation of ‘hand-holdable’ at odds with the Court’s
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`claim construction.” (Mot. at 25.) ZTE then argues that “using the actual claim construction of
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`the Court, which requires only that a device be ‘held by one hand in normal use,’” the Titus EO
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`Application and the Wright patent disclose the “hand-holdable” limitation. See (Mot. at 25–27);
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`see also (6/17/2015 A.M. Trial Tr. (Konchitsky), Dkt. No. 40 in the -634 case, at 62:18–63:9;
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`6/18/2015 A.M. Trial Tr. (Rhyne), Dkt. No. 43 in the -634 case, at 160:23–161:6.) Further, ZTE
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`argues that “Dr. Rhyne further admitted that, although the Titus EO device could be operated
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`while resting it on a user’s arm, it could also be held in one hand without resting it on the user’s
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`arm.” (Mot. at 26.) Finally, ZTE argues that various combinations of prior art with Takahashi
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`and Simon also disclose the “hand-holdable” limitation. (Id. at 26–27.)
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`DataQuill responds by arguing that the “court construed hand holdable to mean ‘can be
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`held by one hand in normal use’” and that “Dr. Rhyne testified that the Titus EO was not hand
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`holdable under this construction because it required at least two hands to operate.” (Resp. at 34.)
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`Similarly, DataQuill argues that Dr. Rhyne testified that the Wright patent also failed to disclose
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`the “hand-holdable” limitation found in the Patents-in-Suit. (Id. at 15); see (6/18/2015 A.M.
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`Trial Tr. (Rhyne), Dkt. No. 43 in the -634 case, at 134:13–136:3.)
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`For example, with respect to the Wright reference, Dr. Rhyne testified:
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`A. But I’ve yellowed out here to show you that it includes a keyboard -- a
`full-stage keyboard with letters and numbers, a -- a touch pad where you
`can do handwriting, and it includes inside this dotted box that says it’s the
`personal computer, a printer, and a display, and here’s also some
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`7
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`Case 2:13-cv-00633-JRG Document 178 Filed 10/13/15 Page 8 of 13 PageID #: 7784
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`capability to do voice work. That’s what Wright has. And I don’t see that,
`particularly when I’ve got a full-size keyboard, a handwriting device, I’ve
`got a separate printer and a separate display as being in a package that
`could be hand-holdable.
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`(6/18/2015 A.M. Trial Tr. (Rhyne), Dkt. No. 43 in the -634 case, at 135:11–21.)
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`Further, Dr. Rhyne testified that the PTO had previously considered the Wright patent in
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`relationship to the Patents-in-Suit and had not found that the patents invalid:
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`Q. And in addition to the Patent Office considering the EO, the Simon,
`and Takahashi, did it also consider the Wright patent?
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`A. Yes, it did, during the ’304 re-exam and both examinations and the re-
`examination of the ’591.
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`(6/18/2015 A.M. Trial Tr. (Rhyne), Dkt. No. 43 in the -634 case, at 134:8–12.)
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`The jury agreed with Dr. Rhyne over Dr. Konchitsky, and the Court agrees that
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`DataQuill’s evidence shows that a reasonable jury could find that ZTE has not met its burden to
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`establish invalidity under the heightened, clear and convincing standard. The Court will not
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`substitute its judgment for that of the jury. The Court does not find that no reasonable jury could
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`have found that the asserted patents were valid in view of the combinations set forth above.
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`3) The “Updating Previously Stored Information” Limitation
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`In addition to the “hand-holdable” limitation, ZTE also argues that it presented clear and
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`convincing evidence of the disclosure of the “updating previously stored information” limitation
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`in the Titus EO Application, IBM Simon, and the Wright patent. See (Mot. at 27–29.) For
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`example, ZTE points to the following testimony from Dr. Konchitsky regarding the disclosure of
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`the “updating previously stored information” limitation in the Titus EO Application:
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`Q. What was your conclusion about the controller being responsive to a
`command to cause downloading of information from a remote processing
`center as Limitation 8?
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`A. That the Titus EO application discloses that limitation because it
`responds to user inputs, as I explained, to download information and
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`8
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`Case 2:13-cv-00633-JRG Document 178 Filed 10/13/15 Page 9 of 13 PageID #: 7785
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`update product information, as we can see here on Page -- in the Schnee
`reference in Page 42. Therefore, this limitation is met.
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`(6/16/2015 P.M. Trial Tr. (Konchitsky), Dkt. No. 38, at 136:25–137:9.) Dr. Konchitsky gave
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`similar testimony with regard to IBM Simon and the Wright patent. See, e.g., ((6/17/2015 A.M.
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`Trial Tr. (Konchitsky), Dkt. No. 40, at 24:18–22 (regarding IBM Simon), 64:21–24 (regarding
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`the Wright patent).)
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`DataQuill responds that the jury was presented with testimony from Dr. Rhyne
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`countering each of Dr. Konchitsky’s opinions regarding this particular claim limitation. See
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`(Resp. at 35–37 (Titus EO Application), 40–42 (IBM Simon), 42–43 (the Wright patent).) For
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`example, DataQuill points to the following testimony from Dr. Rhyne regarding the Titus EO
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`Application’s alleged disclosure of the “updating previously stored information” limitation:
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`Q. And why specifically do you disagree with his statement?
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`A. This picture shows an order-taking screen. This is the way the salesman
`comes in, and I’m talking to you as the doctor and say: Well, what kind of
`hypodermic needles do you need? And if you look at that, I think this is a
`list of various types of hypodermic needles that the Titus company would
`like to sell you. And what it shows you here, the little black arrow that
`comes in, is, if you take the stylus and you say, I want to buy four of them,
`you can pencil in four or stylus in four. But that’s information that’s being
`captured by the salesman, and it’s being sent back to the Titus Company. I
`don’t see where there’s anything in this particular example, which was the
`only example that Dr. Konchitsky used -- I don’t see anything here that
`supports the statement that he made in black above this.
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`Q. Why is that not the claimed update?
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`A. It’s not changing information that was previously stored on the device
`as a result of a download that was requested, okay?
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`(6/18/2015 A.M. Trial Tr. (Rhyne), Dkt. No. 43 in the -634 case, at 109:17–110:14.) Dr. Rhyne
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`similarly testified regarding the disclosure of this limitation in IBM Simon and the Wright
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`patent. See, e.g., (6/18/2015 A.M. Trial Tr. (Rhyne), Dkt. No. 43 in the -634 case, at 124:17–
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`125:19 (IBM Simon), 137:12–24 (the Wright patent).)
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`9
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`Case 2:13-cv-00633-JRG Document 178 Filed 10/13/15 Page 10 of 13 PageID #: 7786
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`The jury was free to weigh the competing testimony and the credibility of the witnesses.
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`Ultimately, the jury agreed with DataQuill’s expert. After consideration of the admitted
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`evidence, including evidence regarding whether the Titus EO Application, IBM Simon, or the
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`Wright patent disclosed the “updating previously stored information” limitation, the jury found
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`that the asserted patents were valid. See, e.g., (6/18/2015 A.M. Trial Tr. (Rhyne), Dkt. No. 43 in
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`the -634 case, at 109:17–110:14 (Titus EO Application), 124:17–125:19 (IBM Simon), 137:12–
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`24 (the Wright patent).) The Court will not substitute its judgment for that of the jury, where
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`under the clear and convincing standard, the jury found the patents-in-suit were not invalid. The
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`Court does not find that no reasonable jury could have found the asserted patents not invalid
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`based on the presented evidence.
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`4) The “Updating a Program” Limitation
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`ZTE argues that “DataQuill presented no rebuttal to the clear, undisputed evidence that
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`the Titus EO Application discloses ‘updating a program.’” (Mot. at 29.) ZTE further argues that
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`“[i]f the asserted claims are held not to be entitled to the October 13, 1993 priority date, the Titus
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`EO Application discloses the recited ‘updating a program’ limitation.” (Id. at 29–30.) DataQuill
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`responds by arguing that “[t]here is no evidence AT&T ever implemented the updating program
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`feature or that Titus publicly used the updating program feature in its system.” (Resp. at 37–38);
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`see also (6/18/2015 A.M. Trial Tr. (Rhyne), Dkt. No. 43 in the -634 case, at 111:13–24.)
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`First, the Court does not find that the asserted claims are not entitled to the October 13,
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`1993 priority date. The jury properly made that decision when they returned their verdict. Based
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`on the Court’s instructions, the priority date decision is just one of many decisions the jury must
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`make in finding validity and infringement. These ultimate decisions necessarily subsume several
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`underlying decisions such as determining the correct priority date. Furthermore, the jury agreed
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`10
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`Case 2:13-cv-00633-JRG Document 178 Filed 10/13/15 Page 11 of 13 PageID #: 7787
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`with DataQuill’s expert after weighing the testimony and judging the credibility of the witnesses.
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`After considering the presented evidence, including that AT&T had never implemented
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`the alleged updating program feature, the jury found that the asserted patents were valid. See,
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`e.g., (6/18/2015 A.M. Trial Tr. (Rhyne), Dkt. No. 43 in the -634 case, at 111:13–24.) The Court
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`will not substitute its judgment for that of the jury where the jury reached a result supported by
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`reasonable evidence. The Court does not find that no reasonable jury could have found the
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`asserted patents were valid in view of the presented evidence and will not overturn the jury’s
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`finding. To the extent ZTE raises other invalidity arguments in its Motion, the Court similarly
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`does not find that no reasonable jury could have found the asserted patents were not invalid in
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`view of the evidence presented during the trial.
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`B.
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`New Trial Based on Alleged Erroneous Claim Constructions
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`The Court previously construed the claim terms of the Patents-in-Suit on January 27,
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`2015. (Dkt. No. 105). For the reasons set forth below, the Court declines to revise its ruling on
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`the constructions of the claim terms at issue in this case.
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`On November 4, 2014, Magistrate Judge Roy S. Payne held a Markman Hearing during
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`which the Parties presented oral argument on the claim terms at issue in this case. (Dkt. No. 90.)
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`The Court issued its Claim Construction Order on January 27, 2015. (Dkt. No. 105.) After the
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`Claim Construction Order issued and before trial, the Parties identified two issues regarding the
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`correct construction of “a controller” and “telephonic transmission” and briefed the issues prior
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`to a hearing held on May 15, 2015. (Dkt. Nos. 115, 118, 124, 128); see also (May 15, 2015 H’rg
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`Tr., Dkt. No. 139, at 29:21–30:4.) The constructions of “a controller” and “telephonic
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`transmission,” which were the only issues regarding the correct constructions re-raised before the
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`Court after the issuance of the Claim Construction Order, were resolved on June 11, 2015. (Dkt.
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`11
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`Case 2:13-cv-00633-JRG Document 178 Filed 10/13/15 Page 12 of 13 PageID #: 7788
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`No. 149.) Now, after trial has been completed and a verdict returned, ZTE seeks a new trial on
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`alleged claim construction issues that were not previously raised before the Court. This is
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`untimely in the extreme.
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`Claim construction has received full and fair treatment, and the Court declines to revisit
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`its previous Orders regarding the correct construction of the Patents-in-Suit. The time to raise
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`any issues or supposed errors in claim construction was before trial, not after nearly 20 hours of
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`testimony and a jury verdict finding infringement and validity. Accordingly, ZTE’s arguments
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`regarding erroneous claim constructions are clearly untimely, and ZTE’s Motion in regard to any
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`alleged claim construction errors is DENIED.
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`IV. Conclusion
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`For the reasons set forth above, the Court finds that the jury’s verdict of validity is
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`supported by adequate evidence presented at trial and should not be disturbed. Further, ZTE’s
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`request for a new trial based on alleged errors in claim construction is untimely. ZTE did not
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`seek clarification or correction prior to trial. Accordingly, Defendant ZTE’s Renewed Motion
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`for Judgment as a Matter of Law, or Alternatively for Remittitur and/or a New Trial, Pursuant to
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`Federal Rules of Civil Procedure 50 and 59 (Dkt. No. 170) should be and is hereby DENIED as
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`to the issues of the October 13, 1993 Priority Data, Validity of the Patents-in-Suit, and the
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`alleged Erroneous Claim Constructions. The damages issues raised in ZTE’s Motion are
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`CARRIED, and will be addressed by the Court in a subsequent opinion.
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`12
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`Case 2:13-cv-00633-JRG Document 178 Filed 10/13/15 Page 13 of 13 PageID #: 7789
`Case 2:13—cv—00633—JRG Document 178 Filed 10/13/15 Page 13 of 13 Page|D #: 7789
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`So ORDERED and SIGNED this 13th day of October, 2015.
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` RODNEY GIL RAP
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`UNITED STAT DISTRICT JUDGE
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