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`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ELBIT SYSTEMS LAND AND C4I LTD., ELBIT
`SYSTEMS OF AMERICA, LLC,
`Plaintiffs-Appellees
`
`v.
`
`HUGHES NETWORK SYSTEMS, LLC,
`Defendant-Appellant
`______________________
`
`2018-1910
`______________________
`
`Appeal from the United States District Court for the
`Eastern District of Texas in No. 2:15-cv-00037-RWS, Judge
`Robert Schroeder, III.
`______________________
`
`Decided: June 25, 2019
`______________________
`
`RICHARD L. RAINEY, Covington & Burling LLP, Wash-
`ington, DC, argued for plaintiffs-appellees. Also repre-
`sented by KEVIN F. KING, RANGANATH SUDARSHAN; KURT
`CALIA, Palo Alto, CA; PATRICK NORTON FLYNN, Redwood
`Shores, CA.
`
` WILLIAM F. LEE, Wilmer Cutler Pickering Hale and
`Dorr LLP, Boston, MA, argued for defendant-appellant.
`Also represented by LAUREN B. FLETCHER, KEVIN
`GOLDMAN; CLAIRE HYUNGYO CHUNG, Washington, DC.
` ______________________
`
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`ELBIT SYSTEMS LAND AND C4I LTD v. HUGHES NETWORK
`SYSTEMS, LLC
`
`
`Before TARANTO, MAYER, and CHEN, Circuit Judges.
`TARANTO, Circuit Judge.
`Elbit Systems Land and C4I Ltd. and Elbit Systems of
`America, LLC (collectively, Elbit) brought this action
`against Hughes Network Systems, LLC (and other defend-
`ants no longer in the case). Elbit alleged that Hughes in-
`fringed Elbit’s U.S. Patent Nos. 6,240,073 and 7,245,874.
`The jury found system claims 2–4 of the ’073 patent in-
`fringed and not invalid, and it awarded damages. It also
`found no infringement of the ’874 patent. The district court
`later found that the case is exceptional and that Elbit is
`entitled to attorney’s fees, but the court has not quantified
`the fees. The ’874 patent is not before us; nor is the validity
`of the asserted claims of the ’073 patent. Hughes appeals
`the infringement finding and damages award for claims 2–
`4 of the ’073 patent and the exceptionality determination.
`We affirm as to infringement and damages. We lack juris-
`diction over the unquantified attorney’s fees decision, so we
`dismiss that portion of the appeal.
`I
`A
`The ’073 patent is entitled “Reverse Link for a Satellite
`Communication Network.” The patent claims a system for
`transmitting information from user terminals to a central
`hub using satellite communication—that direction being
`called a “reverse link.” ’073 patent, col. 4, lines 45–65; id.,
`col. 22, lines 51–59. Add “a forward link,” i.e., satellite com-
`munication from the hub to user terminals, and the result
`is “a complete two way communication system via satel-
`lite.” Id., col. 4, lines 45–50. To transmit data to the hub,
`user terminals employ a “transmitter means,” which, in
`turn, has two communication means: the first is for “trans-
`mitting short bursty data,” while the second is for “contin-
`uous transmission of data.” Id., col. 23, lines 30–35. The
`
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`ELBIT SYSTEMS LAND AND C4I LTD v. HUGHES NETWORK
`SYSTEMS, LLC
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`patent also describes a “switching means” to switch be-
`tween the two communication means. Id., col. 23, lines 36–
`39.
`Claim 2 recites:
`2. A multiple access communications system for
`use in a satellite communication network, compris-
`ing:
`a plurality of user terminals for generating
`data to be transmitted over said multiple
`access communication system;
`at least one hub for receiving data over said
`multiple access communication system
`from said plurality of user terminals;
`transmitter means within each user termi-
`nal for receiving data to be transmitted
`from said user terminal to said hub, said
`transmitter means including first commu-
`nication means for transmitting short
`bursty data in combination with second
`communication means
`for continuous
`transmission of data;
`switching means coupled to said transmit-
`ter means for switching transmission be-
`tween said first communication means and
`said second communication means in ac-
`cordance with predefined criteria, and
`receiver means within said at least one hub
`adapted to receive data transmitted by said
`plurality of terminals utilizing either said
`first communication means or said second
`communication means,
`wherein said switching means comprises
`means for switching from said first commu-
`nication means
`to
`said
`second
`
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`ELBIT SYSTEMS LAND AND C4I LTD v. HUGHES NETWORK
`SYSTEMS, LLC
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`communication means when the length of a
`message received by said transmitter
`means exceeds a predetermined threshold.
`Id., col. 23, lines 22–48. Claim 3 describes an “access com-
`munications system for use in a satellite communication
`network” with the same limitations for transmitting, com-
`munication, and switching means as claim 2. Id., col. 23,
`line 49, through col. 24, line 9. Claim 4 describes a “multi-
`ple access communications system for use in a satellite
`communication network” with the same limitations for
`transmitting, communication, and switching means as
`claim 2. Id., col. 24, lines 10–37.
`B
`As relevant here, on January 21, 2015, Elbit sued
`Hughes for infringement of the ’073 patent. The limita-
`tions now at issue, “communication means for continuous
`transmission of data” and “switching means,” were held to
`be means-plus-function terms. Elbit Sys. Land & C4I Ltd.
`v. Hughes Network Sys., LLC, No. 2:15-CV-37-RWS-RSP,
`2016 WL 6082571, at *7, *14 (E.D. Tex. Oct. 18, 2016)
`(Claim Construction Decision); J.A. 56–64 (affirming the
`magistrate judge’s claim constructions). The “second com-
`munication means” was construed to require “continuous
`transmission of data,” and the corresponding structure was
`held to be the “Channel Assignment Transmitter.” Claim
`Construction Decision at *7. The “switching means” was
`construed to require “switching transmission between said
`first communication means and said second communica-
`tion means in accordance with predefined criteria,” and the
`corresponding structure was held to be a modem or a driver
`“performing the algorithms disclosed in the ’073 Patent at
`10:30-11:40 or Figure 8, and equivalents thereof.” Id. at
`*14. The cited portion of the ’073 patent explains the two
`different communication means and lists the criteria for
`switching from first to second means, ’073 patent, col. 10,
`
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`ELBIT SYSTEMS LAND AND C4I LTD v. HUGHES NETWORK
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`line 58, through col. 11, line 11, and for switching back to
`first, id., col. 11, lines 26–36.
` On August 7, 2017, the jury found that Hughes in-
`fringed because its products came within claims 2–4 of the
`’073 patent, and that those claims are not invalid. The jury
`found that Hughes did not infringe the ’874 patent, a find-
`ing that Elbit does not appeal. The jury awarded Elbit
`$21,075,750 in damages. The district court denied
`Hughes’s post-trial motions for judgment as a matter of law
`for non-infringement and for a new trial on damages. J.A.
`220–34; J.A. 245–50. The district court also found that the
`case is exceptional and granted Elbit’s motion for attor-
`ney’s fees. J.A. 260–65. The district court did not quantify
`the award. The final judgment was entered on March 30,
`2018.
`Hughes timely appealed. We have jurisdiction under
`28 U.S.C. § 1295(a)(1) to consider the infringement and
`damages decisions. Because the unquantified fee award is
`not a final decision, we do not have jurisdiction to review
`the district court’s exceptionality finding.
`II
`Hughes challenges the jury’s finding of infringement of
`the ’073 patent. In particular, Hughes argues that its prod-
`ucts do not include the claimed “continuous transmission
`of data” communication means or the switching means.
`See 35 U.S.C. § 271(a). We review denials of motions for
`judgment as a matter of law de novo under the relevant
`regional circuit’s law and ask whether the underlying jury
`findings were supported by substantial evidence. See Bear
`Ranch, L.L.C. v. HeartBrand Beef, Inc., 885 F.3d 794, 801
`(5th Cir. 2018); i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d
`831, 841 (Fed. Cir. 2010) (following Fifth Circuit law), aff’d
`on other issues, 564 U.S. 91 (2011). Because the jury’s find-
`ings as to infringement of the communication means and
`the switching means were each supported by substantial
`evidence, we reject Hughes’s challenge.
`
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`ELBIT SYSTEMS LAND AND C4I LTD v. HUGHES NETWORK
`SYSTEMS, LLC
`
`A
`Substantial evidence supports the jury’s finding that
`the accused Hughes products have a continuous communi-
`cation means. The accused products are Hughes’s Di-
`recWay, HN, HX, and Jupiter product lines, which provide
`broadband internet access via satellite communication.
`Hughes’s accused products use two methods for transmit-
`ting data: ALOHA and Dynamic Stream. When using the
`ALOHA method, the satellite “randomly transmits bursts
`[of data] on an available Aloha channel.” J.A. 5678. When
`using the Dynamic Stream method, the terminal can send
`transmissions of “variable sizes during each frame.” Id.
`Bruce Elbert, Elbit’s expert, testified that the Dynamic
`Stream mode “provide[s] . . . continuous transmission of
`data,” as is required by the patent. J.A. 1465; J.A. 2373–
`74. His testimony was based on both the way that the Dy-
`namic Stream mode functions and the types of data trans-
`mitted in Dynamic Stream mode. For functionality, Mr.
`Elbert relied on Hughes’s own product description, which
`shows that terminals in ALOHA transmit data in short
`blocks and terminals in Dynamic Stream transmit data in
`relatively longer transmissions. J.A. 5678. Additionally,
`Mr. Elbert testified that Dynamic Stream mode is used for
`the same types of large data files that are too big for
`ALOHA bursts and would be transmitted through the sec-
`ond communication means in the ’073 patent’s system. J.A.
`1465. Elaborating, he stated that “a long burst length” con-
`stitutes “continuous transmission” as claimed in Elbit’s pa-
`tent and short bursts consisting of “just a few blocks of
`data” do not. J.A. 2374–76. Based on Mr. Elbert’s testi-
`mony and the Hughes documents, the jury could permissi-
`bly find that Hughes’s products have a continuous
`transmission mode.
`Hughes’s primary response to Elbit’s evidence is that
`Dynamic Stream mode cannot provide continuous trans-
`mission of data because the transmissions in Dynamic
`
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`Stream mode have “guard” times during which the trans-
`mitter is turned off. Appellant Br. at 28–31. Stephen
`Wicker, an expert for Hughes, testified that Internet Pro-
`tocol over Satellite (IPoS), the standard used by the ac-
`cused Hughes products, includes a guard time. J.A. 2209–
`12; J.A. 5894. Hughes also points to a reference to guard
`times in the section of the specification of the ’073 patent
`describing the first communication means. See ’073 patent,
`col. 13, lines 22–23. Finally, Hughes points to testimony
`from Mr. Elbert discussing a specific kind of channel as-
`signment mode that is non-continuous and has guard times
`“[b]etween the bursts.” J.A. 1535–36.
`Hughes’s evidence about guard times, however, does
`not override, as a matter of law, the substantial evidence
`supporting the jury’s finding that the Dynamic Stream
`mode is properly characterized by a skilled artisan as “con-
`tinuous.” The evidence includes the following. First, the
`IPoS may show guard times, but Mr. Elbert testified that
`Hughes’s products do not insert guard times in the middle
`of a stream transmission. J.A. 2376. Because the jury was
`entitled to rely on Mr. Elbert’s testimony that each trans-
`mission in the Hughes system is not interrupted by a guard
`time, having guard times following a transmission does not
`necessarily mean the transmission was not continuous.
`Second, as to the discussion of guard times in the specifica-
`tion, the failure to mention guard times in the section dis-
`cussing channel assignment (a “continuous” mode) does not
`imply that no continuous mode can have guard times. That
`section describes a specific type of channel assignment that
`does not use guard times, ’073 patent, col. 14, line 23,
`through col. 15, line 2, but the district court did not limit
`the second communication means to that single type of
`channel assignment; indeed, the court rejected Hughes’s
`argument that the ’073 patent should be limited to one,
`specific type of channel assignment that did not use guard
`times. See Claim Construction Decision at *5–7 (defining
`the structure for the second communication means as
`
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`ELBIT SYSTEMS LAND AND C4I LTD v. HUGHES NETWORK
`SYSTEMS, LLC
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`“Channel Assignment Transmitter 110 in Fig. 6, and equiv-
`alents thereof”). Finally, Mr. Elbert’s textbook testimony
`addressed an older Hughes system and a type of channel
`assignment that inserted a guard time between bursts of
`predetermined lengths of time. J.A. 1535–36. The ’073 pa-
`tent and the accused Hughes products, in contrast, provide
`variable length bursts so the transmission will be sent be-
`fore a guard time is inserted. J.A. 1464 (“Now, here we’re
`saying dynamic
`stream
`involves
`variable burst
`lengths . . . .”); ’073 patent, col. 15, lines 29–31 (“[In chan-
`nel assignment,] [a] specific frequency and a particular
`bandwidth are assigned and the data is transmitted for a
`specific period of time or until the data ends.” (emphasis
`added)). None of Hughes’s evidence about guard times pre-
`cluded the jury from finding that the Hughes products have
`a continuous transmission mode.
`B
`Substantial evidence supports the jury’s finding that
`Hughes’s products have a switching means. Hughes ar-
`gues that its products do not perform the algorithm in the
`’073 patent that the district court identified as the struc-
`ture for the switching means. Specifically, Hughes argues
`that its products neither (1) switch back to the first com-
`munication modes following the articulated criteria nor (2)
`request a specific data rate, and that they do not perform
`an equivalent to those steps either. The jury could reason-
`ably find otherwise.
`
`1
`There is substantial evidence that Hughes’s products
`switch back to the first communication mode using a struc-
`ture that “performs the claimed function in substantially
`the same way” as the claimed structure. Odetics, Inc. v.
`Storage Tech. Corp., 185 F.3d 1259, 1267 (Fed. Cir. 1999).
`Hughes first argues that Mr. Elbert did not testify about
`the switching-back process at all. But Mr. Elbert did not
`limit his direct testimony to switching from first to second
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`communication means. See J.A. 1472; J.A. 1477; J.A.
`19122. And on rebuttal, Mr. Elbert specifically disagreed
`with Dr. Wicker’s assessment that Mr. Elbert had dis-
`cussed switching in one direction only (from first to sec-
`ond), indicating that his testimony applied to switching in
`either direction. J.A. 2365; J.A. 2370–71.
`Further, expert evidence indicates that, in a relevant
`respect, the Hughes products use the same criteria for
`switching in the two directions. Message length is one of
`the criteria listed in the ’073 patent as prompting a switch
`either from the first to the second communication means or
`from the second back to the first. ’073 patent, col. 10, lines
`63–67; id., col. 11, lines 30–31. As Mr. Rich Goodin,
`Hughes’s expert, explained, message length is central to
`how and when the Hughes products switch communication
`modes, J.A. 1574, an assessment confirmed by Mr. Elbert’s
`testimony, see J.A. 1469–79. A terminal in the Hughes sys-
`tem “tries to send th[e] data within a ALOHA burst. If the
`data won’t fit . . . [the terminal] sets the backlog so it can
`signal to the hub that there’s more data to send.” J.A. 1574.
`If the hub receives a backlog indicator, which means that
`the message is too long to send in an ALOHA burst, the
`hub assigns the terminal a channel, and the terminal
`transmits the remaining data that could not fit in the
`ALOHA burst in Dynamic Stream mode. J.A. 1473–76;
`J.A. 1574. In addition, Dr. Wicker had testified that it
`would not make sense for the terminal to be in Dynamic
`Stream mode when the backlog was zero. J.A. 2294–95.
`On the record before it, the jury could permissibly find that,
`when the backlog is zero, the terminal switches back to
`ALOHA mode in the accused products.
`Hughes’s second argument for why the structures are
`not substantially the same is that, in the accused products,
`the hub, not the terminal, controls at least some of the
`claimed switching. The parties agree that the ’073 patent
`requires that the terminal control the switch. See J.A. 1514
`(“Q. And that decision to switch needs to be in the terminal,
`
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`ELBIT SYSTEMS LAND AND C4I LTD v. HUGHES NETWORK
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`we all agree on that? A. I mean, technically, it does, yes.
`Q. Okay. So there won’t be any dispute, any doubt that the
`decision to switch needs to be in the terminal in order to
`infringe these claims? A. Yeah, I think that’s good.”). But,
`contrary to Hughes’s contention, there is substantial evi-
`dence on which the jury could find that in the Hughes sys-
`tem the terminal controls the switch. Specifically, Mr.
`Elbert, relying on information from Hughes’s experts, tes-
`tified that the terminal controls the backlog message, and
`“the hub accepts that backlog message and what it says
`and acts upon it. It’s obedient to that backlog message.”
`J.A. 2363; see also J.A. 1477 (repeating prior testimony of
`an expert for Hughes that the hub “takes at face value” the
`backlog signal sent by the terminal); J.A. 2294–95 (Dr.
`Wicker testifying that it “wouldn’t make sense for the hub
`to” switch to Dynamic Stream mode without receiving the
`backlog signal and he had “seen no evidence that that ac-
`tually happens”).
`Hughes argues to the contrary based on a section of the
`IPoS manual that describes the accused switch, which in-
`dicates that the hub “does not immediately stop allocating
`bandwidth to the terminal” when its “backlog goes to zero.”
`J.A. 5252 (emphasis added). But that language, standing
`alone, does not preclude the jury’s finding about the termi-
`nal’s control; for example, the word “immediately” may be
`only about when, not whether, the switch will be made
`upon receiving the terminal’s signal. And no other evi-
`dence to which we have been pointed establishes that the
`passage must mean what Hughes suggests it means. Oral
`Arg. at 32:19–32. Accordingly, the jury could reasonably
`find that in the Hughes products the terminal controls the
`switch.
`
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`2
`The jury could also reasonably find that Hughes’s prod-
`ucts perform the step of requesting a specific data rate.
`Part of the ’073 patent specification that was identified as
`the structure for the switching means, Claim Construction
`Decision at *14, states that “[t]he request [to switch com-
`munication means] also includes a specific requested data
`rate,” ’073 patent, col. 11, lines 14–15. There is substantial
`evidence that the Hughes products perform this portion of
`the algorithm as well, by having a structural equivalent.
`See Odetics, 185 F.3d at 1267. Among such evidence is tes-
`timony from a Hughes expert in the anticipation portion of
`the trial. Dr. Wicker testified that in an older Hughes sys-
`tem, the terminal would request a certain number of trans-
`mission slots and “each slot allows you to transmit data at
`a certain rate,” meaning that the hub could calculate the
`total data rate using the number of slots the terminal re-
`quested. J.A. 2249. Mr. Elbert, for his part, testified that
`the hub receives information about the size of the message
`to be transmitted, which would allow the hub to “compute”
`the data rate. J.A. 2364; see also J.A. 1478; J.A. 1514–15.
`The jury could permissibly find that Hughes’s products re-
`quest a specific data rate as required by the ’073 patent.
`III
`The district court did not abuse its discretion in deny-
`ing Hughes’s motion for a new trial on damages. Under the
`applicable regional circuit’s law, we here review the district
`court’s decision to refuse a new trial only for an abuse of
`discretion. Encompass Office Sols., Inc. v. La. Health Serv.
`& Indem. Co., 919 F.3d 266, 273 (5th Cir. 2019); Gutierrez
`v. Excel Corp., 106 F.3d 683, 687 (5th Cir. 1997); Scott v.
`Monsanto Co., 868 F.2d 786, 789 (5th Cir. 1989); see Uniloc
`USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1309 (Fed. Cir.
`2011). In determining whether a trial court has abused its
`discretion in these circumstances, the Fifth Circuit consid-
`ers whether the damages award was supported by
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`substantial evidence. See Lucas v. Am. Mfg. Co., 630 F.2d
`291, 293–94 (5th Cir. 1980); Pletz v. Christian Herald
`Ass’n, Inc., 486 F.2d 94, 97 (5th Cir. 1973) (“When the evi-
`dence as shown in the record, however, is insufficient to
`support the award, the jury’s award would be erroneous
`and a new trial must be had.”).
`A
`Testimony by Elbit’s damages expert Mr. Christopher
`Martinez provides substantial evidence to support the
`jury’s damages award. Mr. Martinez’s testimony is the
`only expert testimony on damages in the trial record.
`Hughes chose not to introduce any expert testimony of its
`own on the subject.
`We have previously explained that prior settlements
`can be relevant to determining damages. Prism Techs.
`LLC v. Sprint Spectrum L.P., 849 F.3d 1360, 1369 (Fed.
`Cir. 2017). Not every settlement will be relevant, and
`some, while probative, will introduce a danger of unfair
`prejudice that substantially outweighs the probative value.
`Id. Thus, whether in using a settlement agreement at all
`or in drawing the appropriate lessons from the particular
`settlement for the case in which it is being used, relevant
`circumstances—such as similarities and differences in
`technologies and market conditions and the state of the
`earlier litigation when settled—must be carefully consid-
`ered. Id. at 1370–71. Use of actual past licenses and nego-
`tiations to inform the hypothetical negotiation does not
`“require[] identity of circumstances.” Virnetx, Inc. v. Cisco
`Sys., Inc., 767 F.3d 1308, 1330 (Fed. Cir. 2014). Instead,
`the prior licenses or settlements need to be “sufficiently
`comparable” for evidentiary purposes and any differences
`in circumstances must be soundly accounted for. Id.; see
`AstraZeneca AB v. Apotex Corp., 782 F.3d 1324, 1335 (Fed.
`Cir. 2015) (holding that the district court did not err in its
`analysis of other, comparable licenses and settlements be-
`cause it accounted for “similarities and differences between
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`those negotiations and the hypothetical negotiations”); see
`also Summit 6, LLC v. Samsung Elecs. Co., 802 F.3d 1283,
`1299 (Fed. Cir. 2015) (determining that it was appropriate
`to use a prior license to gauge damages because it involved
`comparable technology and similarly situated companies);
`Transocean Offshore Deepwater Drilling, Inc. v. Maersk
`Drilling USA, Inc., 699 F.3d 1340, 1357–58 (Fed. Cir. 2012)
`(relying on other licenses and acknowledging the differ-
`ences between Maersk’s conduct and the conduct of other
`licensees); Maxwell v. J. Baker, Inc., 86 F.3d 1098, 1110
`(Fed. Cir. 1996) (relying on licenses between Maxwell and
`other licensees to establish the reasonableness of the roy-
`alty rate).
`Mr. Martinez relied on a prior settlement and appro-
`priately accounted for differences between the circum-
`stances of that settlement and the present circumstances.
`The relied-on settlement was one between Hughes itself
`and Gilat, another satellite internet company. The Gilat
`Agreement was the result of a suit that Hughes, as patent
`owner, filed against Gilat for allegedly infringing Hughes’s
`older satellite communication system, which used satellite
`communication for only one direction (hub to terminals) of
`the transmission. Mr. Martinez testified to how what
`Hughes received in that settlement provided relevant evi-
`dence for determining what Hughes reasonably should pay
`as a royalty for use of Elbit’s technology at issue here.
`Relevant facts considered by Mr. Martinez include the
`following. The Gilat Agreement occurred only four months
`after the agreed-on date of the hypothetical negotiation
`posited for determining the reasonable royalty in this mat-
`ter. Compare J.A. 1716 with J.A. 202. The time periods for
`assessing value in the satellite-service marketplace were
`therefore very close. The technologies were also related for
`purposes of determining market value. See J.A. 1485 (Mr.
`Elbert’s testimony that the ’073 patent’s technology was
`“the closest” comparator to the Gilat Agreement). The Gi-
`lat Agreement involved obtaining internet access using
`
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`ELBIT SYSTEMS LAND AND C4I LTD v. HUGHES NETWORK
`SYSTEMS, LLC
`
`one-way satellite communication, and the ’073 patent in-
`volves obtaining internet access using two-way satellite
`communication. All three companies, Gilat, Hughes, and
`Shiron (Elbit’s predecessor) participated in the satellite in-
`ternet-access market. While Hughes and Gilat were estab-
`lished competitors and Shiron was a start-up, Shiron had
`the “breakthrough technology,” J.A. 1720, that represented
`“the next generation” of internet access, J.A. 1717, while
`the Gilat Agreement concerned “the old one-way product,”
`J.A. 1717–18.
`Mr. Martinez attended to all of those facts. Mr. Mar-
`tinez also accounted for the fact that the Gilat Agreement
`was a settlement prompted by litigation. See J.A. 1749–52.
`In the end, he relied on the per-unit figure in the Gilat
`Agreement for one-way technology, together with Hughes-
`based evidence that two-way technology was worth at least
`an additional 20%, to arrive at his proposed per-unit fig-
`ure—which the jury adopted. J.A. 17708.
`We conclude that Elbit and Mr. Martinez did what our
`case law requires in explaining the relevance of a prior set-
`tlement to this case. Hughes, which introduced no expert
`damages testimony of its own, has not demonstrated either
`“faulty assumptions” or “a lack of reliable economic testi-
`mony” that would warrant disturbing the jury’s award.
`Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197,
`1212 (Fed. Cir. 2010). This is a case in which it was up to
`the jury to “weigh contradictory evidence, to judge the cred-
`ibility of the witnesses, and to resolve factual disputes.” Id.
`B
`Hughes argues that Elbit’s damages evidence, and
`hence the jury award, is counter to our precedent on appor-
`tionment. “When the accused technology does not make up
`the whole of the accused product, apportionment is re-
`quired. ‘[T]he ultimate combination of royalty base and
`royalty rate must reflect the value attributable to the in-
`fringing features of the product, and no more.’” Finjan, Inc.
`
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`ELBIT SYSTEMS LAND AND C4I LTD v. HUGHES NETWORK
`SYSTEMS, LLC
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`15
`
`v. Blue Coat Sys., Inc., 879 F.3d 1299, 1309 (Fed. Cir. 2018)
`(quoting Ericsson, Inc. v. D–Link Sys., Inc., 773 F.3d 1201,
`1226 (Fed. Cir. 2014)); see also Garretson v. Clark, 111 U.S.
`120, 121 (1884); Commonwealth Sci. & Indus. Research
`Org. v. Cisco Sys., Inc., 809 F.3d 1295, 1301 (Fed. Cir. 2015)
`(CSIRO). We see no violation of those principles here.
`Mr. Martinez testified that apportionment “is essen-
`tially embedded in [the] comparable value” from the Gilat
`Agreement concerning a comparable component of a larger
`product or service. J.A. 1730; see also J.A. 17576 (“[T]he
`requisite apportionment is implicitly considered within the
`royalty rate [of the Gilat Agreement].”). Rather than
`“parse out a value for each of the claims,” Mr. Martinez
`“came up with a market, comparable royalty rate, and then
`[he] adjusted it as necessary” for the hypothetical negotia-
`tion. J.A. 17699; J.A. 1731. As we have noted, to reach his
`final figure, he increased the royalty by 20% from the Gilat
`Agreement, Hughes executives having made statements
`indicating that the two-way system provided a 20% in-
`crease in value over the old one-way system. J.A. 17708.
`Mr. Martinez’s approach is consistent with our prece-
`dent concerning the apportionment requirement that a roy-
`alty should reflect the value of patented technology. See
`CSIRO, 809 F.3d at 1302–03. In CSIRO, the district court
`started with evidence of proposed royalty rates from the
`parties’ prior attempts at negotiating a license for the pa-
`tent. Id. at 1300, 1302–03. We determined that the district
`court’s analysis was not in error because it “already built
`in apportionment” by starting from “discussions centered
`on a license rate” for the same patent, those discussions
`having already informally apportioned the proposed li-
`cense rates to the value of the patented technology. Id. at
`1303. Hughes has not shown the unreasonableness of that
`analysis of how a negotiation can fulfill the apportionment
`requirement. And this case is relevantly similar. Mr. Mar-
`tinez’s testimony allowed the jury to find that the compo-
`nents at issue, for purposes of apportionment to the value
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`ELBIT SYSTEMS LAND AND C4I LTD v. HUGHES NETWORK
`SYSTEMS, LLC
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`of a larger product or service, were comparable to the com-
`ponents at issue in the Gilat-Hughes agreement, and
`Hughes introduced no evidence that precluded such a find-
`ing. Gilat and Hughes would have had to consider the ben-
`efit from the patented technology over other technology
`and account for that in the Gilat Agreement. As a result,
`when Mr. Martinez used the Gilat Agreement as his start-
`ing point, his analysis could reasonably be found to incor-
`porate the required apportionment.
`C
`Hughes’s final damages-related challenge to the dis-
`trict court denial of a new trial points to certain evidence
`that Elbit introduced. This challenge relies on this court’s
`recognition of an evidentiary principle aimed at avoiding
`dangers of certain testimony. Thus, we have hel