Case 2:18-cv-00100-JRG-RSP Document 716 Filed 08/09/21 Page 1 of 20 PageID #: 29989
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`ULTRAVISION TECHNOLOGIES, LLC,
`
`v.
`
`GOVISION, LLC,
`
`Plaintiff,
`
`Defendant.
`
`ULTRAVISION TECHNOLOGIES, LLC,
`
`Plaintiff,
`
`v.
`
`SHENZHEN ABSEN OPTOELECTRONIC
`CO., LTD., ET AL.,
`
`Defendants.
`
`Case No. 2:18-cv-00100-JRG-RSP
`(LEAD CASE)
`
`JURY TRIAL DEMANDED
`
`
`
`
`Case No. 2:18-cv-00112-JRG-RSP
`(CONSOLIDATED CASE)
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`PLAINTIFF ULTRAVISION TECHNOLOGIES, LLC’S OPPOSITION
`TO SHENZHEN ABSEN OPTOELECTRONIC CO., LTD. AND ABSEN, INC.’S
`MOTION FOR ATTORNEYS’ FEES (DKT. 703)
`
`
`
`
`
`
`

`

`Case 2:18-cv-00100-JRG-RSP Document 716 Filed 08/09/21 Page 2 of 20 PageID #: 29990
`
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`Page(s)
`
`INTRODUCTION ...............................................................................................................1
`
`LEGAL STANDARD ..........................................................................................................3
`
`ARGUMENT .......................................................................................................................4
`
`A.
`
`B.
`
`C.
`
`Ultravision’s Validity Arguments on Inventorship Were Reasonable ....................5
`
`Ultravision’s Arguments on the Ultrapanel Prior Art Were Reasonable ...............10
`
`Ultravision’s Infringement Theory Was Not Unreasonable ..................................11
`
`
`
`
`
`
`
`Ultravision Presented Evidence the Accused Products Were
`Cabinetless .................................................................................................11
`
`Ultravision Presented Evidence the Accused Products Were
`Waterproof .................................................................................................12
`
`Ultravision Presented Evidence the ’904 Patent Was Infringed by
`Absen .........................................................................................................13
`
`
`
`CONCLUSION ..................................................................................................................14
`
`
`
`i
`
`

`

`Case 2:18-cv-00100-JRG-RSP Document 716 Filed 08/09/21 Page 3 of 20 PageID #: 29991
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`AdjustaCam, LLC v. Newegg, Inc.,
`861 F.3d 1353 (Fed. Cir. 2017)..................................................................................................4
`
`Checkpoint Sys., Inc. v. All-Tag Sec. S.A.,
`858 F.3d 1371 (Fed. Cir. 2017)..........................................................................................1, 3, 5
`
`DietGoal Innovations LLC v. Chipotle Mexican Grill, Inc.,
`2:12-cv-00764-WCB, 2015 WL 1284826 (E.D. Tex. March 20, 2015) ..............................7, 11
`
`Erfindergemeinschaft UroPep GbR v. Eli Lilly & Co.,
`No. 2:15-CV-1202-WCB, 2017 WL 3044558 (E.D. Tex. July 18, 2017) .................................2
`
`Iris Connex, LLC v. Dell, Inc.,
`235 F. Supp. 3d 826 (E.D. Tex. 2017) .......................................................................................4
`
`Magnetar Techs. Corp. v. Six Flags Theme Parks Inc.,
`No. 07-127-LPS-MPT, 2015 WL 4455606 (D. Del. July 21, 2015) .........................................5
`
`Octane. Octane Fitness LLC v. ICON Health & Fitness Inc.,
`134 S. Ct. 1749 (2014) ..................................................................................................... passim
`
`SFA Sys., LLC v. Newegg Inc.,
`793 F.3d 1344 (Fed. Cir. 2016)..................................................................................................9
`
`Stragent, LLC v. Intel Corp.,
`No. 6:11-cv-421, 2014 WL 6756304 (E.D. Tex. Aug. 6, 2014) ............................................1, 3
`
`Sulzer Textil A.G. v. Picanol N.V.,
`358 F.3d 1356 (Fed. Cir. 2004)..................................................................................................2
`
`Statutes
`
`35 U.S.C. § 285 ........................................................................................................................1, 3, 4
`
`35 U.S.C. § 287 ................................................................................................................................2
`
`Other Authorities
`
`Rule 50(a).........................................................................................................................3, 9, 11, 14
`
`
`ii
`
`

`

`Case 2:18-cv-00100-JRG-RSP Document 716 Filed 08/09/21 Page 4 of 20 PageID #: 29992
`
`Ultravision Technologies, LLC (“Ultravision”) files this Opposition to Defendants
`
`Shenzhen Absen Optoelectronic Co., Ltd. and Absen, Inc.’s (collectively, “Absen”) Motion for
`
`Attorneys’ Fees Under 35 U.S.C. § 285 (Dkt. 703).
`
`
`
`INTRODUCTION
`
`At one point, the verdict sheet read that Ultravision was the prevailing party. Dkt. 690-1.
`
`After five days of trial and several hours of deliberation, the jury initially sided with Ultravision,
`
`finding all patents infringed and the ’782 patent valid. Id. But after partially filling out the verdict
`
`form in Ultravision’s favor, the jury changed its mind, voided its initial verdict, and sided with
`
`Absen. Id.; Ex. A, Day 5 Trial Tr. 116:21-117:6, June 11, 2021. This case could not have been
`
`closer, and nothing about Ultravision’s case against Absen was unreasonable or exceptional under
`
`Octane. Octane Fitness LLC v. ICON Health & Fitness Inc., 134 S. Ct. 1749 (2014). The law is
`
`clear that declaring a case exceptional and awarding attorneys’ fees is not proper simply because
`
`a party’s argument does not carry the day. Checkpoint Sys., Inc. v. All-Tag Sec. S.A., 858 F.3d
`
`1371, 1376 (Fed. Cir. 2017) (“The [Supreme] Court has cautioned that fee awards are not to be
`
`used ‘as a penalty for failure to win a patent infringement suit.’”) (quoting Octane Fitness, 134
`
`S. Ct. at 1753).
`
`Absen mischaracterizes Ultravision’s litigation positions and the evidence in an attempt to
`
`manufacture allegedly unreasonable arguments by Ultravision. None of Ultravision’s litigation
`
`positions, alone or together, meet the exceptional case standard. Once Absen’s assertions are
`
`closely examined and the totality of the circumstances considered, Absen fails to meet the high
`
`burden required by Octane Fitness, and its Motion proves to be as frivolous as its failed attempts
`
`at summary judgment. Absen’s Motion should be denied.
`
`Courts in this District have held that “awards of attorney’s fees in patent cases should be
`
`reserved for rare and unusual circumstances.” Stragent, LLC v. Intel Corp., No. 6:11-cv-421, 2014
`
`
`

`

`Case 2:18-cv-00100-JRG-RSP Document 716 Filed 08/09/21 Page 5 of 20 PageID #: 29993
`
`WL 6756304, at *3 (E.D. Tex. Aug. 6, 2014); see also Erfindergemeinschaft UroPep GbR v. Eli
`
`Lilly & Co., No. 2:15-CV-1202-WCB, 2017 WL 3044558, at *1 (E.D. Tex. July 18, 2017) (“[F]ee
`
`awards are not to be made lightly, but are to be reserved for cases that are ‘uncommon, rare, or not
`
`ordinary,’ i.e., well out of the mainstream.”) (citing and quoting Octane Fitness, 134 S. Ct. at
`
`1756). By any objective measure this is not such a case, at least, because:
`
`1)
`
`2)
`
`3)
`
`4)
`
`5)
`
`6)
`
`7)
`
`8)
`
`9)
`
`Ultravision overcame Absen’s Motions for Summary Judgment based on the same
`issues presented in the immediate Motion. Dkts. 626, 668 (improper inventorship); Dkt.
`670 (non-infringement based on “cabinet,” waterproofing, and “adjacent panel”); see
`Sulzer Textil A.G. v. Picanol N.V., 358 F.3d 1356, 1370 (Fed. Cir. 2004) (approving
`district court’s reasoning that surviving summary judgment indicates a claim is not
`baseless).
`
`Ultravision overcame Liantronics’ Motion to Intervene in the Absen case in order to
`correct inventorship. Dkt. 578.
`
`Ultravision overcame Liantronics’ Motion to Correct Inventorship in a separate
`litigation. Dkt. 111, Case No. 2:18-cv-00099-JRG-RSP.
`
`Ultravision overcame Absen’s Motion for Required Findings of Fact based on Issue
`Preclusion and Judicial Estoppel with respect to an arbitration decision regarding
`misappropriation of trade secrets by third-party Shenzhen Only against Ultravision.
`Dkt. 655.
`
`that
`Ultravision overcame Absen’s Motion for Partial Summary Judgment
`Ultravision’s Claim to Pre-Notice Damages is Barred for Failure to Mark Under 35
`U.S.C. § 287. Dkts. 654, 669.
`
`Ultravision was successful in its Daubert Motion of Absen’s technical expert regarding
`inventorship. Dkt. 661.
`
`Ultravision was successful in its Motion to Exclude Absen’s technical expert from
`relying on the Daktronics ProTour for Absen’s invalidity arguments against the ’904
`Patent. Dkt. 646.
`
`Ultravision overcame Absen’s Daubert Motion of its damages expert. Dkt. 656.
`
`At trial, Absen dropped its marking defense that it pursued throughout discovery.
`
`).
`
`
`
`10) At trial, Absen dropped its invalidity arguments based on the Shenzhen Only V-Series,
`the Yaham DT12.5, and the Barco C11, which it pursued throughout discovery and
`expert discovery.
`
`2
`
`

`

`Case 2:18-cv-00100-JRG-RSP Document 716 Filed 08/09/21 Page 6 of 20 PageID #: 29994
`
`11) At trial, Absen’s technical experts each admitted that the Absen A7 includes a cabinet.
`Ex. C, Day 4 Trial Tr. 926:24-928:23, June 10, 2021; Ex. D, Day 3 Trial Tr. 655:19-
`20.
`
`12) At trial, Absen’s technical expert admitted that there is no evidence of a sale of the
`Liantronics Ultrapanel to anyone before it was sold to Ultravision in the 2006-2008
`timeframe, except for self-serving testimony from Liantronics’ witnesses who had a
`“foggy” memory. Ex. C, Day 4 Trial Tr. 931:24-933:2.
`
`13)
`
`14)
`
`The Court granted each of Ultravision’s Rule 50(a) motions, including motions
`regarding Absen’s marking defense, Absen’s lack of written description defense, and
`invalidity under 102 and 103 as to the Shenzhen Only products. Id. at 1001:2-12.
`
`The Court denied all of Absen’s Rule 50(a) motions, including motions regarding direct
`infringement as to all of the Asserted Patents related to the panel terms (including the
`“cabinet” term), direct infringement as to the ’782 and ’294 Patents related to the
`“waterproofing issue,” direct infringement as to the ’904 Patent related to the “adjacent
`panel” issue, induced or indirect infringement as to the ’904 method patent, willful
`infringement, and invalidity based upon improper inventorship, and anticipation and
`obviousness with respect to all the asserted patents. Id. at 1001:13-18.
`
`15) No sanctions motion was brought by Absen against Ultravision during litigation. See
`Stragent, 2014 WL 6756304, at *5 (considering lack of discovery sanctions in
`declining to award fees).
`
`16)
`
`17)
`
`Prior to the Absen trial, Ultravision received numerous multimillion dollar settlement
`and license agreements, including agreements with each of Absen’s co-defendants.
`See, e.g., PTX-036, PTX-038, PTX-040, PTX-041, PTX-02612, PTX-2613, and PTX-
`2614.
`
`The jury initially sided with Ultravision on infringement and validity of the ’782 Patent
`before changing its mind and voiding its prior answers mid-deliberation. Dkt. 690-1;
`Ex. A, Day 5, Trial Tr. 116:21-117:6.
`
`
`
`LEGAL STANDARD
`
`An exceptional case under 35 U.S.C. § 285 is one that “stands out from others with respect
`
`to the substantive strength of a party’s litigating position (considering both the governing law and
`
`the facts of the case) or the unreasonable manner in which the case was litigated.” Octane Fitness,
`
`134 S. Ct. at 1756. But fee awards should not be “a penalty for failure to win a patent infringement
`
`suit.” Checkpoint Sys., 858 F.3d at 1376. “[A] district court may award fees in the rare case in
`
`which a party’s unreasonable conduct—while not necessarily independently sanctionable—is
`
`3
`
`

`

`Case 2:18-cv-00100-JRG-RSP Document 716 Filed 08/09/21 Page 7 of 20 PageID #: 29995
`
`nonetheless so ‘exceptional’ as to justify an award of fees.” Octane Fitness, 134 S. Ct. at 1756-57.
`
`In weighing the evidence, courts may consider, among other factors, “frivolousness, motivation,
`
`objective un-reasonableness (both in the factual and legal components of the case) and the need in
`
`particular circumstances to advance considerations of compensation and deterrence.” Id. at 1756
`
`n.6 (internal quotation marks and citation omitted); see also id. at 1758 (explaining that a § 285
`
`attorney fee award is appropriate “when the losing party has acted in bad faith, vexatiously,
`
`wantonly, or for oppressive reasons” (internal quotation marks and citation omitted)).
`
` ARGUMENT
`
`Absen does not argue that Ultravision’s conduct is equivalent to any other cases deemed
`
`exceptional in this District. The only case cited from this District by Absen, Iris Connex, LLC v.
`
`Dell, Inc., 235 F. Supp. 3d 826, 846, 850 (E.D. Tex. 2017), held that fees should be granted based
`
`on an “implausible” and “nonsensical” claim construction position and on a strategy “to obtain
`
`settlements driven by litigation costs rather than the merits of th[e] case.” Neither of those
`
`situations is present here.1
`
`Absen argues that the litigation was exceptional because Ultravision’s arguments regarding
`
`(1) inventorship; (2) the Ultrapanel prior art; and (3) infringement with respect to (a) cabinets,
`
`(b) waterproofing, and (c) the ’904 method patent, were allegedly unreasonable. Motion at 9-15.
`
`Not only does Absen’s Motion ignore the significant evidence presented by Ultravision on each
`
`
`
`1 Although Absen presents a single line argument for its fourth reason this litigation was
`exceptional, stating “Ultravision’s damages theory and licensing practices were objectively
`unreasonable under a totality of the facts,” Absen fails to present any argument on the point. See
`Motion at 9. Further, Ultravision has numerous multimillion dollar settlements, and Absen has no
`basis to characterize Ultravision’s damages requests as “nuisance value.” AdjustaCam, LLC v.
`Newegg, Inc., 861 F.3d 1353, 1361 (Fed. Cir. 2017) (“[T]here is no minimum damages
`requirement to file a patent infringement case. Asserting seemingly low damages . . . does not
`necessarily make a case ‘exceptional.’”)
`
`4
`
`

`

`Case 2:18-cv-00100-JRG-RSP Document 716 Filed 08/09/21 Page 8 of 20 PageID #: 29996
`
`of these points, Ultravision also overcame summary judgement and other motions filed by Absen
`
`on these same issues. The mere fact that Absen ultimately prevailed in a closely contested trial is
`
`no basis to award fees. Checkpoint Sys., 858 F.3d at 1376.
`
`A.
`
`Ultravision’s Validity Arguments on Inventorship Were Reasonable
`
`The general jury verdict form merely shows that the three asserted claims were found
`
`invalid. Because Absen presented defenses of inventorship, anticipation, and obviousness, it is not
`
`known whether the invalidity verdict was the result of Absen’s inventorship defense or not. For
`
`this reason alone, a fee award regarding inventorship is improper.
`
`Absen first attacks Ultravision’s position on inventorship as “unreasonable” by asserting
`
`that there were four former employees that testified that “Mr. Hall was not an inventor and did no
`
`engineering.” Motion at 10.2 However, as was made clear during cross-examination of each of
`
`those witnesses, none of them know who designed the Ultrapanel or were even present at
`
`Mr. Hall’s design meetings with Liantronics or Shenzhen Only. Ex. D, Day 3 Trial Tr. 730:18-19
`
`(Mr. Bachman admitting he has “no idea who designed [the Ultrapanel]”); Id. at 763:7-17
`
`(Mr. Van Houtan admitting he did not go to China with Mr. Hall and does not know what ideas
`
`
`
`2 Absen relies on a single Delaware case for the proposition that Ultravision’s arguments relating
`to inventorship were objectively unreasonable. Motion at 9-10 citing Magnetar Techs. Corp. v. Six
`Flags Theme Parks Inc., No. 07-127-LPS-MPT, 2015 WL 4455606, at *9 (D. Del. July 21, 2015).
`However, Absen wholly fails to compare the facts of this case to those in Magnetar, which is likely
`because the cases have no facts in common. In Magnetar, the court found that there was a third
`unnamed inventor and invalidated the patent by granting defendant’s motion for summary
`judgment. In contrast, here, the Court made no such finding and denied Absen’s motion for
`summary judgment. Additionally, in Magnetar the court stated that “[p]laintiffs clearly suspected
`Chung was an inventor,” because plaintiffs “obtained a transfer of his rights, title and interest in
`the patent.” Id. at *10. The court also noted that there was testimony other than “self-interested”
`testimony that corroborated the inventorship. Id. Neither of those two key facts are present here,
`as Ultravision obtained no transfer of rights, title, or interest in the patents from any person, and
`the only testimony presented by Absen alleging that there is an unnamed inventor is the self-
`interested testimony from Liantronics.
`
`5
`
`

`

`Case 2:18-cv-00100-JRG-RSP Document 716 Filed 08/09/21 Page 9 of 20 PageID #: 29997
`
`and designs Mr. Hall provided to the Chinese manufacturers.); Id. at 837:10-25 (Mr. Auyeung
`
`admitting Mr. Hall was in contact with and visited Shenzhen Only prior to when Mr. Auyeung met
`
`Mr. Hall, and that he does not know what information Mr. Hall provided to Shenzhen Only.); Id.
`
`at 844:9-20 (Ms. Brooks admitting that she never traveled to China and does not know what
`
`information Mr. Hall provided to Shenzhen Only.). Absen ignores the testimony from the
`
`employee that worked closest with Mr. Hall, Matthew Foster, who stated that he would go to
`
`Mr. Hall with his technical questions because Mr. Hall knew how the products worked and that he
`
`would have daily conversations with Mr. Hall to understand the products. Ex. E, Day 1 Trial Tr.
`
`182:3-14. Mr. Foster further testified that Mr. Hall was involved in designing the Master Plus
`
`Series Ultrapanel. Id. at 194:9-11. Absen also misleadingly claims that Ultravision was unable to
`
`identify any “technical documents originally authored or created by Ultravision in response to
`
`Absen’s discovery requests regarding inventorship,” but
`
`
`
`
`
`
`
`.
`
`Absen argues that Ultravision’s position on inventorship is “unreasonable” by asserting
`
`that “the evidence showed that the cabinetless idea originated with Liantronics and was provided
`
`to Mr. Hall as part of a supply agreement” and that the Liantronics P Series was pictured in the
`
`patents and described as a preferred embodiment.3 Motion at 10. But these same arguments were
`
`
`
`3 The supplier agreement that allegedly provided Mr. Hall with the “cabinetless idea” was not a
`signed supplier agreement and Ultravision and Liantronics did not do business under that
`agreement. Ex. E, Day 1 Trial Tr. 181:11-22, 183:5-10.
`
`6
`
`

`

`Case 2:18-cv-00100-JRG-RSP Document 716 Filed 08/09/21 Page 10 of 20 PageID #:
`29998
`
`advanced in Liantronic’s Motion to Correct Inventorship, which the Court denied.4 Dkt. 111, Case
`
`No. 2:18-cv-00099-JRG-RSP. There, the Court noted that Liantronics failed to show that a
`
`Liantronics engineer conceived of any inventive element beyond the prior art P Series. Id.
`
`(“Whether the Liantronics engineers merely contributed ’well known concepts’ or ’contributed in
`
`some significant manner to the conception . . . of the invention’ remains to be determined by the
`
`trier of fact.”). Absen also claims that Mr. Hall’s statement at trial that the Ultrapanel embodied
`
`“unique advantages of the invention” was a “fatal problem.” Motion at 10. But advantages of the
`
`invention are not the invention. Indeed, the testimony cited by Absen refers only to the fact the
`
`Ultrapanel had no cabinets and could be stacked against a wall, but Mr. Hall also testified that the
`
`Liantronics manufactured Ultrapanel “didn’t meet any of the ultimate goals,” that it “was not truly
`
`modular,” that it “had a primary and secondary,” and that “it leaked” due to the aluminum housing.
`
`Ex. E. Day 1 Trial Tr. 183:17-24. Further, corroborating trial testimony that the Ultrapanel was
`
`not waterproof was abundant. Id. at 65:4-5, 189:20-21; Ex. D, Day 3 Trial Tr. 747:1-10. Absen
`
`even cites trial testimony in which Mr. Hall explains that he conceived of the cabinetless design
`
`prior to May 2006 but claims that Mr. Hall’s testimony is “wrong and factually irrelevant” in light
`
`of self-serving testimony from Liantronics’ current employees. Motion at 11. This argument
`
`exemplifies Absen’s Motion, which is merely a recap of the evidence presented at trial viewed
`
`through a lens most favorable to Absen in an attempt to seek fees for a highly contested jury trial.
`
`DietGoal Innovations LLC v. Chipotle Mexican Grill, Inc., 2:12-cv-00764-WCB, 2015 WL
`
`1284826, at *4, (E.D. Tex. March 20, 2015) (In motion for attorneys’ fees, repeating previous
`
`arguments, and “repackaging those arguments and labeling them as evidence of bad faith does not
`
`
`
`4 Liantronics and Absen are represented by the same counsel.
`
`7
`
`

`

`Case 2:18-cv-00100-JRG-RSP Document 716 Filed 08/09/21 Page 11 of 20 PageID #:
`29999
`
`make those arguments any more persuasive.”).
`
`Absen’s next argument is perplexing and continues the trend of failing to examine the
`
`asserted claims as a whole. Absen makes baseless allegations that “key innovations” identified by
`
`Mr. Hall “simply described Liantronics’ design,” that “Ultravision needed to pivot its invention
`
`story” because of Absen’s so-called “defenses based on the Liantronics and all-metal Ultrapanel,”
`
`and that Ultravision chose to change the priority date for the Asserted Patents “because that date
`
`aligns with a later patent filing that more clearly discloses plastic.” Motion at 11. Absen provides
`
`no support for any of these allegations, and clearly cannot claim to know why Ultravision made
`
`tactical litigation decisions. Further, Absen does not even explain how these alleged trial decisions
`
`were unreasonable or could support a finding that this case was exceptional. Absen asserts that
`
`“Mr. Hall first learned of using plastic from the Shenzhen Only 480x480.” Motion at 11.
`
`Notwithstanding that the trial testimony cited by Absen for this statement merely notes that a figure
`
`in a provisional patent appears to depict the plastic housing of the 480x480 product, and does not
`
`state how Mr. Hall conceived of a plastic housing, it has been repeatedly pointed out in this
`
`litigation and by both Parties’ technical experts that the use of plastic in a non-waterproof housing
`
`was known in the prior art. Indeed, the 480x480 was a product with fans and large vents, allowing
`
`the interior of the plastic panel to stay cool. Ultravision’s position was always that the innovation
`
`with respect to plastic was using it in a modular display panel that is sealed to be waterproof,
`
`among other things. This position was reasonable.
`
`Absen’s final argument with respect to inventorship is an attempt to manufacture
`
`misconduct where there is none. Absen alleges that Mr. Hall’s trial testimony stating that he would
`
`bring his documents and information and “sit down with the attorneys at Slater Matsil and go
`
`through all of the drawings, all of the ideas, all the specifications, and then they would determine
`
`8
`
`

`

`Case 2:18-cv-00100-JRG-RSP Document 716 Filed 08/09/21 Page 12 of 20 PageID #:
`30000
`
`who the inventor was and they would write the patent applications for us” is somehow
`
`unreasonable and contradictory to previous representations to the Court. Motion at 11-12; Ex. E,
`
`Day 1 Trial Tr. 28:15-29:1. Simply describing the process Mr. Hall undertook to get his patents
`
`did not disclose any attorney-client communications, any mental impressions of prosecution
`
`counsel, or any mental impressions of Mr. Hall based upon the advice of his prosecution counsel.
`
`Further, stating the fact that patent prosecution counsel determined the inventor and drafted the
`
`patent applications does not constitute an advice of counsel defense. Therefore, Ultravision did not
`
`“go back on its word at trial,” as it did not disclose or rely on any privileged information. Absen
`
`also argues that the patent prosecutors’ testimony was inconsistent with Mr. Hall’s testimony, but
`
`deciding between competing testimony is a fact-finding issue for the jury and nothing more.
`
`Ultravision presented evidence at the summary judgment phase that showed material
`
`factual disputes as to invalidity and inventorship. See, e.g., Dkt. 362; see also Dkt. 85, Case No.
`
`2:18-cv-00099-JRG-RSP. The Court accepted that evidence and found that there was a genuine
`
`dispute of material fact, denying summary judgment. Dkts. 626, 668; see also Dkt. 111, Case No.
`
`2:18-cv-00099-JRG-RSP. The Court then rejected each of Absen’s inventorship invalidity
`
`arguments at the Rule 50(a) hearing. Ex. C, Day 4 Trial Tr. 1001:13-18. Absen’s attempts to rehash
`
`its invalidity arguments – which Ultravision disagrees with – are a further distraction, and, at best,
`
`simply do not support a finding of an exceptional case. SFA Sys., LLC v. Newegg Inc., 793 F.3d
`
`1344, 1348 (Fed. Cir. 2016) (“[I]t is the ‘substantive strength of the party’s litigating position’ that
`
`is relevant to an exceptional case determination, not the correctness or eventual success of that
`
`position.”) citing Octane Fitness, 134 S. Ct. at 1756.
`
`9
`
`

`

`Case 2:18-cv-00100-JRG-RSP Document 716 Filed 08/09/21 Page 13 of 20 PageID #:
`30001
`
`B.
`
`Ultravision’s Arguments on the Ultrapanel Prior Art Were Reasonable
`
`As with inventorship, the general jury verdict form does not reveal the jury’s reasons for
`
`invalidating the asserted claims, and it cannot be certain that the jury agreed that the asserted claims
`
`are obvious over the Ultrapanel prior art.
`
`Absen’s argument with respect to invalidating prior art is essentially that Absen believes
`
`the all-metal Ultrapanel is strong prior art and therefore the case is exceptional. Motion at 12-13.
`
`In support, Absen makes unsupported and blatantly false accusations, such as “The only major
`
`difference that Ultravision could identify between the Ultrapanel and the claimed panels was that
`
`the former was not made out of plastic.” Id. In reality, Ultravision identified other major
`
`differences, not least of which is that Ultrapanel was not sealed to be waterproof. Ex. E, Day 1
`
`Trial Tr. 183:17-24. Absen also claims that “plastic was Shenzhen Only’s contribution,” but as
`
`discussed above Shenzhen Only never had a waterproof plastic housing. Motion at 12. Next, Absen
`
`attempts to mischaracterize Ultravision’s expert’s deposition testimony to allege that it was
`
`obvious that the Ultrapanel could have been made out of plastic. Id. at 12-13. Mr. Credelle was
`
`simply shown a figure depicting an aluminum housing from the specification of the Asserted
`
`Patents and asked if it could be substituted with a plastic housing without any reference to the all-
`
`metal Ultrapanel or any other components whatsoever. Dkt. 703-10 at 79:4-12. Mr. Credelle
`
`reasonably responded that the component shown could be constructed from plastic. Id.; Dkt. 703-
`
`14 at 139:2-8. Setting aside the misleading use of Mr. Credelle’s testimony, this is simply another
`
`repackaging of unpersuasive invalidity arguments by Absen. Absen speculates that Ultravision’s
`
`decision to not call Mr. Credelle as a witness for validity rebuttal was made so that Mr. Credelle
`
`“would not be forced to repeat that admission.” Motion at 13. This argument is bold, as, logically,
`
`the more likely reason a party would make such a decision is that it judged the strength of the
`
`invalidity case presented and determined it was unnecessary to rebut through their own expert.
`10
`
`

`

`Case 2:18-cv-00100-JRG-RSP Document 716 Filed 08/09/21 Page 14 of 20 PageID #:
`30002
`
`Regardless of the motivation, Absen doesn’t explain how such a tactical decision, or the decision
`
`not to move under Rule 50(a), makes the case exceptional.
`
`C.
`
`Ultravision’s Infringement Theory Was Not Unreasonable
`
`Absen attacks
`
`three of Ultravision’s
`
`infringement positions as “unreasonable”:
`
`(1) cabinets, (2) waterproof, and (3) the ’904 patent – all of which relate only to the non-
`
`infringement arguments Absen presented at trial. DietGoal Innovations LLC, 2015 WL 1284826,
`
`at *4 (In motion for attorneys’ fees, repeating previous arguments, and “repackaging those
`
`arguments and labeling them as evidence of bad faith does not make those arguments any more
`
`persuasive.”). In doing so, Absen implicitly concedes that most of Ultravision’s positions (e.g.,
`
`all other claim elements and proofs for the asserted claims) were reasonable, if not substantively
`
`strong. But Absen’s arguments for even the small fraction of three of Ultravision’s positions lack
`
`merit.
`
`The Court has heard Absen’s arguments on the alleged weaknesses of Ultravision’s
`
`positions regarding (1) “modular display panel” and “cabinet,” (2) waterproof, and (3) ’904 Patent
`
`infringement, on at least two separate occasions – once in the summary judgement phase and once
`
`in the Rule 50(a) phase – each time Absen’s arguments were rejected, and the Court provided no
`
`indication that it believed Ultravision’s positions were unreasonable or meritless. See Dkt. 670;
`
`see also Ex. C, Day 4 Trial Tr. 1001:13-18. The Court should once again reject Absen’s arguments
`
`and find that Ultravision’s positions were reasonable.
`
`
`
`Ultravision Presented Evidence the Accused Products Were
`Cabinetless
`
`Ultravision’s claims that each accused product was a “modular display panel” were
`
`objectively reasonable. Ultravision’s expert explained at trial that each of the accused products
`
`was a “modular display panel,” which by the Court’s construction means that there is no cabinet.
`
`11
`
`

`

`Case 2:18-cv-00100-JRG-RSP Document 716 Filed 08/09/21 Page 15 of 20 PageID #:
`30003
`
`Ex. E, Day 1 Trial Tr. 283:19-285:22. Absen argues that “Ultravision presented no expert
`
`testimony to the jury with respect to this claim element,” but “cabinet” is not a claim element.
`
`Motion at 13. The claim element is “modular display panel,” which Mr. Credelle explained the
`
`accused products are and he specifically noted that the LED panels of the accused products have
`
`“no enclosure” and “are exposed to the environment” which clearly explained that the accused
`
`products do not include “cabinets,” as construed by the Court. Ex. E, Day 1 Trial Tr. 283:19-
`
`285:22. In any event, any lay juror could readily conclude by examining the evidence that none of
`
`the accused products included a cabinet.
`
`Further, Ultravision elicited testimony on cross-examination from Absen’s own expert that
`
`the accused products have LED panels that are exposed to the environment, that the Absen A7 has
`
`LED panels that are not exposed to the environment, and that the Absen A7 has a cabinet. Ex. C,
`
`Day 4 Trial Tr. 926:24-928:23. Regarding the
`
`
`
`
`
`
`
`
`
`Ultravision Presented Evidence the Accused Products Were
`Waterproof
`
`; Motion at 13.
`
`Ultravision’s infringement claim against the accused products with respect to the
`
`waterproof requirement was also reasonable. Absen presents blatant mistruths in its argument,
`
`alleging that “all documentary evidence confirmed that the accused products were not waterproof,”
`
`that “[e]very product was shown throughout the litigation to be IP 54,” and that “[t]he only
`
`evidence that Ultravision had was an opinion by its expert.” Motion at 14. In reality, the jury was
`
`presented multiple times with a video of Absen’s own technician explaining that at least the XV
`
`Series accused products are rated IP67, which is far above the IP65 requirement under the Court’s
`
`12
`
`

`

`Case 2:18-cv-00100-JRG-RSP Document 716 Filed 08/09/21 Page 16 of 20 PageID #:
`30004
`
`construction for “sealed to be waterproof.” PTX-814. Ultravision presented additional evidence
`
`that the accused products were designed to achieve the IP65 rating, including the IP65 test that
`
`was performed by Ultravision’s expert which precisely followed the IEC Ingress Protection
`
`standard. See Ex. G, Day 2 Trial Tr. 323:25-330:17. Absen takes issue with the reliability of
`
`Mr. Credelle’s IP test based on his trial and prior deposition testimony, but the reliability was
`
`something for the jury to weigh, and Absen’s issues with Mr. Credelle’s test do not support a
`
`finding that Ultravision was unreasonable for relying on its expert’s testing and opinion in arguing
`
`the accused products are waterproof.
`
`
`
`Ultravision Presented Evidence the ’904 Patent Was
`In