Case 2:14-cv-00911-JRG Document 547 Filed 08/23/16 Page 1 of 30 PageID #: 21746
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CORE WIRELESS LICENSING S.A.R.L.,
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`
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`v.
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`INC. AND LG
`LG ELECTRONICS,
`ELECTRONICS MOBILECOMM U.S.A.,
`INC.,
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`
`
`
`
`Plaintiff,
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`Defendants.
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`Case No. 2:14-cv-911-JRG
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`MEMORANDUM OPINION AND ORDER
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`
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`Before the Court is LG’s First Motion for Judgment as a Matter of Law, and in the
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`Alternative for a New Trial (Non-Infringement) (Dkt. No. 451), LG’s Second Motion for
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`Judgment as a Matter of Law, and in the Alternative for a New Trial (Invalidity) (Dkt. No. 452),
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`and LG’s Third Motion for Judgment as a Matter of Law, and in the Alternative for a New Trial
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`(Damages) (Dkt. No. 453). For the reasons set forth below, the Court finds that LG’s motions for
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`judgment as a matter of law, and in the alternative for a new trial, on the issues of infringement
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`and validity should be DENIED (Dkt. No. 451; Dkt. No. 452). The Court finds that LG’s motion
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`for a new trial on the issue of damages should be GRANTED (Dkt. No. 453).
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`I.
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`BACKGROUND
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`
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`The Court held a jury trial in this case, and the jury returned a verdict on March 24, 2016.
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`The asserted claims of U.S. Patent No. 8,434,020 (“the ’020 Patent”) and U.S. Patent
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`No. 8,713,476 (“the ’476 Patent”), the two patents-in-suit, relate to interface techniques used to
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`access various functions of a mobile device application, and the accused products at trial were
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`LG phones that implement the Android operating system. The jury’s verdict found that the
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`asserted claims were infringed by LG’s accused devices and not invalid, and it awarded $3.5
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`million in damages to Plaintiff Core Wireless Licensing S.a.r.l. (“Core”). (“Verdict,” Dkt. No.
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`428.) Defendants LG Electronics, Inc. and LG Electronics MobileComm U.S.A., Inc.
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`(collectively, “LG”) now argue that the jury did not have sufficient evidence for its findings.
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`II.
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`LEGAL STANDARD
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`A.
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`Applicable Law Regarding FRCP 50
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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 should properly ask whether “the state of proof is such that reasonable and impartial
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`minds could reach the conclusion the jury expressed in its verdict.” FRCP 50(b); see also Am.
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`Home Assur. Co. v. United Space Alliance, 378 F.3d 482, 487 (5th Cir. 2004). “The grant or
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`denial of a motion for judgment as a matter of law is a procedural issue not unique to patent law,
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`reviewed under the law of the regional circuit in which the appeal from the district court would
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`usually lie.” Finisar Corp. v. DirectTV Group, Inc., 523 F.3d 1323, 1332 (Fed. Cir. 2008). “A
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`JMOL may only be granted when, ‘viewing the evidence in the light most favorable to the
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`verdict, the evidence points so strongly and overwhelmingly in favor of one party that the court
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`believes that reasonable jurors could not arrive at any contrary conclusion.’” Versata Software,
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`Inc. v. SAP 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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`Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 499 (5th Cir. 2012). “Substantial evidence is
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`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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`2
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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, 693 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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`B.
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`Applicable Law Regarding FRCP 59
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`Under FRCP 59(a), a new trial can be granted to any party after a jury trial on any or all
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`issues “for any reason for which a new trial has heretofore been granted in an action at law in
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`federal court.” FRCP 59(a). In considering a motion for a new trial, the Federal Circuit applies
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`the law of the regional circuit. z4 Techs., Inc. v. Microsoft Corp., 507 F.3d 1340, 1347 (Fed. Cir.
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`2007). “A new trial may be granted, for example, if the district court finds the verdict is against
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`the weight of the evidence, the damages awarded are excessive, the trial was unfair, or
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`prejudicial error was committed in its course.” Smith v. Transworld Drilling Co., 773 F.2d 610,
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`3
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`612–13 (5th Cir. 1985). “The decision to grant or deny a motion for a new trial is within the
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`discretion of the trial court and will not be disturbed absent an abuse of discretion or a
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`misapprehension of the law.” Prytania Park Hotel, Ltd. v. General Star Indem. Co., 179 F.3d
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`169, 173 (5th Cir. 1999).
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`III.
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`INFRINGEMENT
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`To prove infringement under 35 U.S.C. § 271, a plaintiff must show the presence of
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`every element, or its equivalent, in the accused product or service. Lemelson v. United States,
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`752 F.2d 1538, 1551 (Fed. Cir. 1985). First, the claim must be construed to determine its scope
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`and meaning; and second, the construed claim must be compared to the accused device or
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`service. Absolute Software, Inc. v. Stealth Signal, Inc., 659 F.3d 1121, 1129 (Fed. Cir. 2011)
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`(citing Carroll Touch, Inc. v. Electro Mech. Sys., Inc., 15 F.3d 1573, 1576 (Fed. Cir. 1993)). “A
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`determination of infringement is a question of fact that is reviewed for substantial evidence when
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`tried to a jury.” ACCO Brands, Inc. v. ABA Locks Mfr. Co., 501 F.3d 1307, 1311 (Fed. Cir.
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`2007).
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`A.
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`LG’s Motion for JMOL Based on New Claim Constructions
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`At trial, Core asserted dependent claims 11 and 13 from the ’020 Patent and dependent
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`claims 8 and 9 from the ’476 Patent. Independent claim 1 of the ’020 Patent, on which claims 11
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`and 13 depend, provides as follows:
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`A computing device comprising a display screen, the computing device being
`configured to display on the screen a main menu listing at least a first application,
`and additionally being configured to display on the screen an application
`summary window that can be reached directly from the main menu, wherein the
`application summary window displays a limited list of at least one function
`offered within the first application, each function in the list being selectable to
`launch the first application and initiate the selected function, and wherein the
`application summary window is displayed while the application is in an un-
`launched state.
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`4
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`’020 Patent at col. 5, ll. 33–43 (emphasis added). Independent claim 1 of the ’476 Patent, on
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`which claims 8 and 9 depend, provides as follows:
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`A computing device comprising a display screen, the computing device being
`configured to display on the screen a menu listing one or more applications, and
`additionally being configured to display on the screen an application summary
`that can be reached directly from the menu, wherein the application summary
`displays a limited list of data offered within the one or more applications, each of
`the data in the list being selectable to launch the respective application and enable
`the selected data to be seen within the respective application, and wherein the
`application summary is displayed while the one or more applications are in an un-
`launched state.
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`’476 Patent at col. 5, l. 59–col. 6, l. 3 (emphasis added).
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`
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`On the first morning of trial, Core called Mr. Mathieu Martyn, the named inventor of the
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`’020 and ’476 Patents, as its first witness. During Core’s direct examination and LG’s cross-
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`examination of Mr. Martyn, it became clear to the Court that a live claim construction dispute
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`existed between the parties. See (3/21/2016 A.M. Trial Tr., Dkt. No. 433 at 103:13–105:14,
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`135:14–137:8.) After Mr. Martyn’s testimony ended, the Court asked the parties whether an O2
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`Micro issue existed for the Court to resolve with regard to the claim terms “un-launched state”
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`and “reached directly.” See O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., Ltd., 521 F.3d
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`1351 at 1360 (Fed. Cir. 2008) (“When the parties raise an actual dispute regarding the proper
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`scope of these claims, the court, not the jury, must resolve that dispute.”). While Core indicated
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`that it did not think additional claim construction before the Court was necessary, LG disagreed.
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`(3/21/2016 P.M. Trial Tr., Dkt. No. 434 at 3:5–4:1, 100:12–101:4.) LG admitted that it had
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`previously believed an O2 Micro issue might arise during trial but had not brought this concern
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`to the Court’s attention. (Id. at 100:22–101:4.)
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`LG then asked the Court to revisit its O2 Micro concerns after the testimony of Core’s
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`infringement expert, Dr. Kenneth Zeger, and the Court agreed. (Id. at 4:1–23.) After observing
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`Dr. Zeger’s testimony during Core’s direct examination, see (Id. at 64:9–66:10), the Court
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`determined that an O2 Micro situation requiring additional claim construction did, in fact, exist
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`with regard to the terms “un-launched state” and “reached directly.” (Id. at 101:8–16.) As a
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`result, and because the parties did not raise this dispute with the Court before trial began, the
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`Court then heard arguments and construed the disputed terms outside the presence of the jury.
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`To advance its position on the appropriate construction for “un-launched state,” Core
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`argued that “launched” and “un-launched” have opposite meanings, and “launched” is
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`consistently equated with “displayed” in the patents’ specifications and the file history. (Id. at
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`102:23–24, 103:6–7, 105:16–20.) Therefore, Core concluded, “un-launched” must mean
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`something that is not displayed or visible to the user. (Id. at 105:5–6, 106:16–19.) As support for
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`its construction, Core cited multiple references in the specification that indicate “launch” or
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`“launched” relate to visibility. (Id. at 434 at 103:12–104:5.) Additionally, Core discussed
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`portions of the file history where the applicant equated “displayed” with “launched” while
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`distinguishing claims from the prior art. (Id. at 104:6–105:7 (“And it says: The applicant
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`underlines that when the main menu of Figure 6A is displayed, that happens when the mail
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`application has already been launched.”).) Finally, Core pointed to Dr. Zeger’s deposition
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`testimony as further support for finding “launched” to mean “displayed.” (Id. at 105:21–106:17
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`(“ANSWER: So it’s either not executing code or not visible to the user. That’s what unlaunched
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`would be.”).)
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`In response, LG briefly mentioned the treatment of “launched” and “un-launched” in the
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`patents, but it spent the majority of its argument addressing multiple prior art references
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`contained in the file history. (Id. at 107:18–23.) In doing so, LG focused primarily on the patent
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`applicant’s amendment in response to the Richard reference, which amendment added the
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`following limitation: “Wherein the application summary window is displayed while the
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`application is in an un-launched state.” (Id. at 108:8–21.) LG argued that, to distinguish its
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`claimed invention from Richard, a windows-based user interface directed to moving between
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`different launched (but not necessarily visible) applications, the applicant added the “un-
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`launched state” limitation and represented that an application in an “un-launched state” was not
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`running. (Id. at 111:4–14, 112:24–113:10.) Essentially, LG’s contentions amounted to a
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`disclaimer argument. Core strongly disagreed with LG’s characterization of Richard and alleged
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`that all launched applications in the Richard reference were visible and running. (Id. at 114:4–
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`22.)
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`The Court carefully considered the specifications and the prosecution history, but it did
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`not find that the applicant had clearly disavowed claim scope during prosecution. See Phillips v.
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`AWH Corp., 415 F.3d 1303, 1317 (Fed. Cir. 2005) (“In addition to consulting the specification,
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`we have held that a court ‘should also consider the patent’s prosecution history, if it is in
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`evidence.’ . . . Yet because the prosecution history represents an ongoing negotiation between the
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`PTO and the applicant, rather than the final product of that negotiation, it often lacks the clarity
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`of the specification and thus is less useful for claim construction purposes.”) (citation omitted);
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`Athletic Alts., Inc. v. Prince Mfg., 73 F.3d 1573, 1580 (Fed. Cir. 1996) (ambiguous prosecution
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`history may be “unhelpful as an interpretive resource”); Cordis Corp. v. Boston Sci. Corp., 561
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`F.3d 1319, 1329 (Fed. Cir. 2009) (disavowal requires the patentee’s statements in the
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`specification or prosecution history to amount to a “clear and unmistakable surrender”); 3M
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`Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013) (“Where an
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`applicant’s statements are amenable to multiple reasonable interpretations, they cannot be
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`deemed clear and unmistakable.”). Instead, the Court found support in the language of the
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`patents for equating “launched” with “displayed.” E.g., ’020 Patent at col. 2, l. 66–col. 3, l. 2.
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`This relation is consistent with a reasonable interpretation of the prosecution history in which the
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`patentee argued that Richard only discloses a single launched and visible application consisting
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`of multiple windows. See Application No. 10/343,333, Dec. 26, 2007 Reply and Amendment to
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`Final Office Action at 9. Accordingly, the Court construed “un-launched state” as “not
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`displayed.” (3/21/2016 P.M. Trial Tr., Dkt. No. 434 at 120:11–12.)
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`After hearing arguments on “un-launched state,” the Court next considered the term
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`“reached directly.” Core argued that the term should be given its plain and ordinary meaning,
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`stating that “[t]he patent is agnostic about how you get there. The point is that you get there
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`quickly and easily. . . . And it says you get there in one step. That’s really what the issue is. It
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`doesn’t matter the mechanism.” (Id. at 116:17–21.) In response, LG represented:
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`Our position at this point, Your Honor, is that what “reached directly from the
`main menu” means is that it needs to be reached from the main menu without an
`intervening step. We’re not trying to argue . . . that the patent specifies some
`particular way of doing that. What we’re saying is it’s directly from the main
`menu, it means from the main menu without an intervening step.
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`(Id. at 117:15–22.) LG later stated, “the construction we would like on ‘reached directly’ is
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`‘without an intervening step.’” (Id. at 120:4–5.) Having considered the parties’ arguments and
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`the intrinsic record, the Court construed “reached directly” as “reached without an intervening
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`step.” (Id. at 120:12–14.)
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`In its present motion before the Court, LG argues that the “unlaunched state” claim
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`limitation should have been construed to mean “not running” and that, under such construction,
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`no reasonable jury could have found infringement. (Dkt. No. 451 at 2, “Infringement Motion.”)
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`LG also argues that the claim limitation requiring the application summary window to be
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`“reached directly from the [main] menu” should have been construed to require user interaction
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`with the main menu and that, under such construction, no reasonable jury could have found
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`infringement.1 (Id.) The Court declines to revisit its claim construction rulings. First, a Rule 50
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`motion is an inappropriate vehicle for LG’s re-urged and new claim construction arguments.
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`Claim construction is a matter of law and is not properly submitted to a fact-finder such as a
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`jury.2 Even if Rule 50(b) was a proper vehicle to raise claim construction issues, LG did not
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`preserve its claim construction arguments in its Rule 50(a) motion (Dkt. No. 423). LG’s Rule
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`50(a) motion does not mention its proposed construction of “reached directly from the main
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`menu,” and LG points only to a single footnote in its Rule 50(a) motion addressing “unlaunched
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`state.”3 Accordingly, the Court finds that LG’s motion for judgment of noninfringement as a
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`matter of law based on new claim constructions should be denied. Medisim Ltd. v. BestMed,
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`LLC, 758 F.3d 1352, 1356–57 (Fed. Cir. 2014) (“Rule 50(a) allows a party to challenge the
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`sufficiency of the evidence prior to submission of the case to the jury. See Fed. R. Civ. P. 50(a).
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`Rule 50(b), by contrast, sets forth the procedural requirements for renewing a sufficiency of the
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`evidence challenge after the jury verdict. See id. 50(b). . . . These two provisions are linked
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`together, as ‘[a] motion under Rule 50(b) is not allowed unless the movant sought relief on
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`similar grounds under Rule 50(a) before the case was submitted to the jury.’” (citation omitted));
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`see also SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312 (Fed. Cir. 2006) (arguments
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`raised in footnotes are not preserved).
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`1 The Court notes that LG now attempts to challenge the precise claim construction for “reached directly” which LG
`requested and received when the Court construed this term.
`2 LG seems to recognize this procedural reality, as it states in its reply brief: “Claim construction is a matter of law,
`so LG was not required to present its claim construction arguments as part of its Rule 50 motions to preserve its
`position.” (“Reply,” Dkt. No. 470 at 5.)
`3 That footnote provides: “LG objects to the Court’s construction of ‘un-launched state,’ which is directly contrary
`to the plain and ordinary meaning of the term in the context of the asserted claims and the file history of the patents-
`in-suit. LG further objects to the claim constructions contained in Magistrate Judge Payne’s Claim Construction
`Order (Dkt. 386) and this Court’s adoption of that Order (Dkt. 417) over LG’s prior objections for the reasons stated
`and referenced therein.” (Dkt. No. 423 at 3, n2.) LG also included a short offer of proof in its Rule 50(a) motion
`related to “un-launched state,” but it does not now contend that such paragraph preserved its arguments for its Rule
`50(b) motion.
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`B.
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`LG’s Motion for JMOL Based on the Court’s Claim Construction
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`LG next argues that, even under the Court’s construction of “reached directly,” no
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`reasonable jury could have found “that the accused notifications were ‘an application summary
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`window that can be reached directly from the main menu.’” (Infringement Motion at 22.) As
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`such, LG contends that the Court should grant judgment of noninfringement as a matter of law.
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`The thrust of LG’s noninfringement argument is that “it was undisputed [at trial] that the
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`accused notifications are part of a notification shade that was accessed by swiping down on the
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`status bar, not by interacting with a ‘main menu.’” (Id. at 22–23.) LG asserts that since the
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`evidence at trial established the status bar as distinct from a main menu, no reasonable jury could
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`have found that the accused notifications could be reached from the main menu without using the
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`status bar as an intervening step. (Id. at 23.) In response, Core argues that the jury reasonably
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`concluded that the status bar is part of the main menu: “[t]he jury could reasonably conclude
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`that, by pulling a notification shade down from the status bar part of the home screen, the user
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`was interacting with the main menu.” (Dkt. No. 460 at 8, “Infringement Response.”)
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`At trial, Dr. Zeger testified that the accused LG products met this limitation:
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`QUESTION: Okay. Element [1c], do you see Element [1c], which reads:
`Additionally being configured to display on the screen an application summary
`window that can be reached directly from the main menu?
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`ANSWER: Yes, I do.
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`QUESTION: Does the LG G4 satisfy Element [1c]?
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`ANSWER: Yes, it does.
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`QUESTION: Can you show us the application summary window on the G4?
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`ANSWER: Yes. It’s—the application summary window we pull down with our
`finger. This is an illustration, and the application summary window is just this
`white rectangle part of what we pulled down. And so there it is. That’s the
`application summary window.
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`. . .
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`QUESTION: Is the application summary window reached directly from the main
`menu?
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`ANSWER: Yes, it is. It was reached—we were looking at the main menu, and we
`just immediately, in one step, were able to get it.
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`(3/21/2016 P.M. Trial Tr., Dkt. No. 434 at 53:25–54:12, 54:18–22.) On cross-examination, LG
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`questioned Dr. Zeger at length on this issue:
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`
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`QUESTION: And it’s your opinion that the notification that we were looking at,
`which notifications for Gmail, et cetera, that you showed the jury, are reached
`directly from the main menu as shown on the screen, correct?
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`ANSWER: So using the claim construction that the Court just handed me, that is
`correct. Reached directly in the sense that they’re reached without an intervening
`step.
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`. . .
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`QUESTION: So you’re saying that you reached that particular notification
`directly from the main menu, because when you reach up here to the top of the
`screen and you swipe down, you get to it, right?
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`ANSWER: That’s right. There’s no intervening step.
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`QUESTION: Right. So, in your opinion, the act of pulling down from the status
`bar to show a notification shade is not an intervening step, in your opinion, right?
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`ANSWER: That’s right. It’s just one step.
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`(Id. at 134:21–135:2, 135:20–136:4); see also (Id. at 138:19–139:2, 140:14–141:31, 146:19–
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`147:4.)
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`Additionally, LG called Dr. Daniel Sandler, a senior staff software engineer from Google,
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`to discuss his interpretation of a home screen on LG’s devices. (3/22/2016 P.M. Trial Tr., Dkt.
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`No. 437 at 69:8–25.) LG then called its invalidity expert, Dr. Vernon Thomas Rhyne.
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`Significantly, Dr. Rhyne admitted on cross-examination that a user manual4 for one of LG’s
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`accused products appears to show the status bar as an element included in the product’s home
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`screen. (Id. at 162:16–164:12.) Dr. Rhyne then agreed that if the status bar was considered part
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`of the home screen, such assumption would affect his opinion “about whether or not you can get
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`to the application summary window directly from the home screen.” (Id. at 164:14–18.)
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`The Court is not persuaded by LG’s argument that no reasonable jury could have found
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`that the accused notifications were reached “without an intervening step” from the main menu.
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`As the parties’ briefing on this motion indicates, factual disputes between the parties and their
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`witnesses existed at trial as to the correct meaning and representation of “home screen” in
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`accused LG products and its relationship to a “main menu,” as well as to whether accessing the
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`status bar on the accused devices constitutes an “intervening step.” In resolving these disputes,
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`the jury was properly instructed on the law and was free to judge the credibility of witnesses and
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`weigh all competing evidence, which included evidence that the accused LG devices satisfy
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`every claim limitation of the patents. Given such support in the record, the Court will not
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`supplant the judgment of the jury. The jury, acting under a preponderance of the evidence
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`standard as to the disputed factual issues, unanimously reached a reasoned and supportable
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`decision. Where a jury is presented with two conflicting positions at trial and there is reasonable
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`evidence and argument to support both positions, the fact that the jury ultimately sided with one
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`party over the other does not support entry of JMOL. Accordingly, the Court finds that LG’s
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`motion for judgment of noninfringement as a matter of law based on the Court’s claim
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`constructions should be and is DENIED.
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`
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`4 After losing its non-infringement argument at trial, LG now deems this user manual “legally irrelevant.”
`(Infringement Motion at 22.) The Court finds that LG provides no legal support for this (new post-verdict)
`contention.
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`
`
`12
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`

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`Case 2:14-cv-00911-JRG Document 547 Filed 08/23/16 Page 13 of 30 PageID #: 21758
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`C.
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`LG’s Motion for New Trial
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`Finally, LG asserts that it is entitled to a new trial for four reasons. LG first re-urges its
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`JMOL arguments and then contends that the Court’s claim constructions were prejudicial.
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`(Infringement Motion at 23.) The Court has already addressed each of those matters and, as such,
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`finds that LG’s request for a new trial on those bases should be and is DENIED.
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`Additionally, LG argues that the Court “made incorrect evidentiary rulings that
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`prejudiced LG.” (Id. at 23–24.) Namely, LG states, “the Court precluded LG from cross-
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`examining Dr. Zeger and other witnesses regarding their inconsistent statements, and relevant
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`portions of the file history.” (Id. at 23.) The Court disagrees that LG suffered any prejudice, and
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`a close examination of the trial transcript reveals that the “evidentiary rulings” now cited by LG
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`actually precluded LG from doing very little. LG first argues that the Court limited the scope of
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`LG’s cross-examination of Dr. Zeger. (Id.) However, the portion of the transcript to which LG
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`refers reveals that the Court simply instructed LG’s counsel that he was “not going to go behind
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`the claim construction,” and LG’s counsel agreed. (3/21/2016 P.M. Trial Tr., Dkt. No. 434 at
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`142:7–144:12.) The Court then noted that there was not a clear objection to rule on and “[w]e’ll
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`see where this testimony takes us.” (Id. at 144:13–23.) LG next criticizes an instruction given by
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`the Court that the parties should not use the file history to go behind the Court’s claim
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`constructions (an instruction LG’s counsel readily agreed to when given), and points to an
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`objection the Court sustained after LG’s line of questioning ventured far outside of LG’s
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`previously stated bounds. (3/22/2016 P.M. Trial Tr., Dkt. No. 437 at 105:13–106:4, 112:7–
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`114:2.) LG last argues that the Court “sua sponte” precluded “LG’s rebuttal to Core’s attempts to
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`establish the validity of the patent” by referencing the length of time the asserted patents were
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`prosecuted at the PTO. (Infringement Motion at 23.) In fact, the Court actually ruled that LG
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`13
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`

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`Case 2:14-cv-00911-JRG Document 547 Filed 08/23/16 Page 14 of 30 PageID #: 21759
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`could not collaterally attack the PTO and then declined to strike the testimony that LG had
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`already elicited. (3/23/2016 A.M. Trial Tr., Dkt. No. 439 at 15:11–18:18.) Accordingly, the
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`Court finds that LG’s third argument for a new trial mischaracterizes the Court’s actions as
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`unduly prejudicial and finds that LG’s request for a new trial on such bases should be and is
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`DENIED.
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`
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`Finally, LG contends that it is entitled to a new trial because the Court did not allow LG
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`to call Dr. Mark Mahon, Core’s validity expert, as an adverse witness. (Infringement Motion at
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`24–25.) During the course of trial, Core determined that it was no longer necessary to call Dr.
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`Mahon in rebuttal as to the validity of the ’020 and ’476 Patents. (3/23/2016 A.M. Trial Tr., Dkt.
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`No. 439 at 99:13–16.) After learning this strategic decision, LG moved to call Dr. Mahon
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`adversely. The Court found that LG “had one of the most experienced invalidity experts in the
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`nation testify at length” and had not been deprived of putting forth their invalidity case to the
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`jury in any way. (3/23/2016 P.M. Trial Tr., Dkt. No. 441 at 5:12–20.) The Court then determined
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`that it was not proper to permit LG to call Dr. Mahon adversely, noting potential problems with
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`both qualifying Dr. Mahon as an expert and the jury’s perception of Core’s decision to not call
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`Dr. Mahon to testify. (Id. at 5:21–6:3.) The Court concluded that allowing LG to call Core’s
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`validity expert adversely would effectively prejudice Core for electing not to present him in its
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`rebuttal case. (Id. at 6:4–14.) LG now presents no compelling argument or authority to the
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`contrary.5 As such, the Court finds that LG’s request for a new trial on this basis should be and is
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`DENIED.
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`
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`5 It is also noteworthy that Dr. Mahon was not included on LG’s Trial Witness List. (Dkt. No. 414-2.) This was an
`independently proper basis to exclude him regardless of any issue of potential prejudice.
`14
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`

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`Case 2:14-cv-00911-JRG Document 547 Filed 08/23/16 Page 15 of 30 PageID #: 21760
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`IV. 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). LG 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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`Ltd. P’ship, 131 S. Ct. 2238, 2242 (2011). Anticipation is a factual question reviewed for
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`substantial evidence. VirnetX, Inc. v. Cisco Sys., Inc., 767 F.3d 1308, 1323 (Fed. Cir. 2014). “A
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`claim is anticipated only if each and every element is found within a single prior art reference,
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`arranged as claimed.” Id.
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`A.
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`LG’s Motion for JMOL
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`
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`LG argues that it is entitled to judgment as a matter of law on the issue of invalidity
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`“because LG established that the Asserted Claims are anticipated by U.S. Patent No. 6,415,164
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`issued to Blanchard (LGX065) (“Blanchard”), and Core provided no rebuttal evidence.” (Dkt.
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`No. 452 at 1, “Validity Motion.”) While LG presented testimony from Dr. Rhyne, who told the
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`jury that Blanchard disclosed all of the limitations of the asserted claims, see (3/22/2016 P.M.
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`Trial Tr., Dkt. No. 437 at 115:5–139:14), Core elected not to call its own validity expert in
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`rebuttal. The underlying theme of LG’s argument suggests that the jury had no choice but to
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`believe Dr. Rhyne’s conclusion that the asserted claims were invalid over Blanchard since Core
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`chose not to present a rebuttal validity expert. (Id. at 2.)
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`In its present motion, LG summarizes and re-urges Dr. Rhyne’s trial testimony (Id. at 5–
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`11.) LG then alleges that Core presented only “two arguments to suggest that Blanchard did not
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`anticipate the Asserted Claims: (1) Blanchard did not permit a user to send a text message in just
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`one step; and (2) Blanchard did not bring the ‘cream’ of an application to the top or put
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`‘everything in one place.’” (Id.