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Case 2:18-cv-00100-JRG-RSP Document 721 Filed 09/14/21 Page 1 of 12 PageID #: 30201
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`ULTRAVISION TECHNOLOGIES, LLC,
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`
`
`v.
`
`SHENZEN ABSEN OPTOELECTRONIC
`CO., LTD., ABSEN, INC.,
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`
`
`
`
`
`
`Plaintiff,
`
`Defendants.
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`












`
`
`ORDER
`
`
`
`CIVIL ACTION NO. 2:18-CV-00100-JRG
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`
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`
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`
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`Before the Court is Plaintiff Ultravision Technologies, LLC’s (“Ultravision”) Motion for
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`a New Trial Under Fed. R. Civ. P. 59(a)(1)(A) and to Alter the Judgment Pursuant to Fed. R. Civ.
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`P. 59(e) (the “Motion”). (Dkt. No. 706). Having considered the Motion, the relevant authorities,
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`and the entirety of the record before the Court, the Court finds that it should be GRANTED-IN-
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`PART and DENIED-IN-PART as set forth herein.
`
`I. BACKGROUND
`
`Ultravision filed its original complaint against Defendants Shenzen Absen Optoelectronic
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`Co., Ltd. and Absen, Inc. (collectively, “Absen”) on March 27, 2018. Ultravision Technologies,
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`LLC v. Shenzhen Absen Optoelectronic Co., Ltd. et al, Case No. 2:18-cv-00112-JRG-RSP, Dkt.
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`No. 1. On April 12, 2019, that case and several other member cases were consolidated under the
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`lead case against GoVision, LLC. (Dkt. No. 17). Ultravision amended its complaint to assert
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`infringement of eight patents against Absen. (Dkt. No. 73). Five of the eight patents are relevant
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`to the Motion—U.S. Patent Nos. 9,916,782 (the “’782 Patent”), 9,978,294 (the “’294 Patent”),
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`9,207,904 (the “’904 Patent”), 9,047,791 (the “’791 Patent”), and 9,666,105 (the “’105 Patent”).
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`

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`Case 2:18-cv-00100-JRG-RSP Document 721 Filed 09/14/21 Page 2 of 12 PageID #: 30202
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`The Court conducted a claim construction hearing that addressed all eight of the initially
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`asserted patents on July 29, 2020. (Dkt. No. 407 at 1). For the ’782 and ’294 Patents, the Court
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`construed the phrase “sealed to be waterproof” to mean “sealed to have an ingress protection (IP)
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`rating of IP 65 or higher.”1 (Id. at 23–24). For the ’782, ’294, and ’904 Patents, the Court construed
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`the terms “display panel[s],” “modular display panel[s],” “LED display panel[s],” and “panel[s]”
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`to mean “interchangeable display panel for a multi-panel modular display configured for use
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`without a cabinet.” (Id. at 18).
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`After the Court’s claim construction, the parties stipulated to non-infringement of the ’791
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`and ’105 Patents. (Dkt. No. 637). The parties further stipulated to the submission of a proposed
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`final judgment that the accused products have not infringed and currently do not infringe the
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`asserted claims of the ’791 and ’105 Patents. (Id. at ¶ 12).
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`At trial, Ultravision asserted infringement of only claim 9 of the ’782 Patent, claim 22 of
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`the ’294 Patent, and claim 1 of the ’904 Patent. (Dkt. No. 691 at 2). The jury returned a verdict
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`finding no infringement and invalidity for each of the three asserted claims. (Id. at 4–5).
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`II. APPLICABLE LAW
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`After a jury trial on the merits, a party may file a motion for a new trial or a motion to alter
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`the judgment. Fed. R. Civ. P. 59.
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`A. Motion for a New Trial
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`Rule 59 provides that a new trial may be granted on all or part of the issues on which there
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`has been a trial by jury for “any reason for which a new trial has heretofore been granted in an
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`action at law in federal court.” Fed. R. Civ. P. 59(a). Notwithstanding the broad sweep of Rule 59,
`
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`1 The Ingress Protection (IP) standard provides a two-digit number to evaluate a product’s protection from dust and
`water ingress. (Dkt. No. 297-20 at ¶ 54). The first digit reflects the protection against dust ingress and the second digit
`reflects the protection against water ingress. (Id.).
`
`
`
`2
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`

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`“courts do not grant new trials unless it is reasonably clear that prejudicial error has crept into the
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`record or that substantial justice has not been done, and the burden of showing harmful error rests
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`on the party seeking the new trial.” Metaswitch Networks Ltd. v. Genband US LLC, No.
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`2:14-CV-00744-JRG, 2017 WL 3704760, at *2 (E.D. Tex. Aug. 28, 2017); Erfindergemeinschaft
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`UroPep GbR v. Eli Lilly & Co., 276 F. Supp. 3d 629, 643 (E.D. Tex. 2017). “A new trial may be
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`granted, for example, if the district court finds the verdict is against the weight of the evidence, the
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`damages awarded are excessive, the trial was unfair, or prejudicial error was committed in its
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`course.” Smith v. Transworld Drilling Co., 773 F.2d 610, 612–13 (5th Cir. 1985); see also Laxton
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`v. Gap Inc., 333 F.3d 572, 586 (5th Cir. 2003) (“A new trial is warranted if the evidence is against
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`the great, and not merely the greater, weight of the evidence.”). Furthermore “[u]nless justice
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`requires otherwise, no error in admitting or excluding evidence—or any other error by the court or
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`a party—is ground for granting a new trial . . . . The court must disregard all errors and defects that
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`do not affect any party’s substantial rights.” Fed. R. Civ. P. 61.
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`B. Motion to Alter the Judgment
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`Under Rule 59(e), a party can move the Court to amend an Order or Judgment within 28
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`days of entry. Fed. R. Civ. P. 59(e). “Rule 59(e) is properly invoked ‘to correct manifest errors of
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`law or fact or to present newly discovered evidence.’” In re Transtexas Gas Corp., 303 F.3d 571,
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`581 (5th Cir. 2002) (internal citations omitted). A motion for reconsideration “is not the proper
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`vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised
`
`before.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). “Since specific grounds
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`for a motion to amend or alter are not listed in the rule, the district court enjoys considerable
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`discretion in granting or denying the motion.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111
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`(9th Cir. 2011) (internal citations omitted). Accordingly, relief under Rule 59(e) is appropriate
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`3
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`

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`Case 2:18-cv-00100-JRG-RSP Document 721 Filed 09/14/21 Page 4 of 12 PageID #: 30204
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`only when (1) there is a manifest error of law or fact; (2) there is newly discovered or previously
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`unavailable evidence; (3) there would otherwise be manifest injustice; or (4) there is an intervening
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`change in controlling law. Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003).
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`III. DISCUSSION
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`Ultravision moves for a new trial pursuant to Federal Rule of Civil Procedure 59 on two
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`grounds. First, Ultravision asserts that the Court erred in its construction of the term “sealed to be
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`waterproof” and that the erroneous construction was prejudicial because it led to the jury’s factual
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`findings of non-infringement and invalidity. (Dkt. No. 706 at 4). Second, Ultravision argues that
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`the Court’s interpretation of “interchangeable” in the construction of the term “modular display
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`panel” was erroneous; further, Ultravision argues that the Court’s erroneous interpretation of
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`“interchangeable” prejudiced Ultravision because it resulted in the exclusion of Ultravision’s
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`expert testimony regarding validity. (Id. at 9–10).
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`Additionally, Ultravision notes that the parties stipulated to non-infringement of the ’791
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`and ’105 Patents and agreed to “submit a proposed final judgment that the Accused Products have
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`not infringed and currently do not infringe the Asserted Claims of the ’791 and ’105 Patents after
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`the completion of the jury trial currently scheduled for June 3, 2021.” (Dkt. No. 637). Ultravision
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`moves under Rule 59(e) that the judgment reflect the terms of the parties’ stipulation. (Dkt. No.
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`706 at 13).
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`A. Motion for New Trial on Infringement and Validity Based on the Construction
`of “Sealed to Be Waterproof”
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`Ultravision raises two issues with the Court’s construction of “sealed to be waterproof.”
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`Ultravision argues that the Court’s construction was erroneous, which resulted in (1) the erroneous
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`finding of infringement, and (2) the erroneous finding of invalidity. As the Court finds that its prior
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`construction was not erroneous, the Court rejects both prongs of Ultravision’s argument.
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`4
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`

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`i. The Court’s Construction of “Sealed to Be Waterproof” Was Not
`Erroneous
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`According to Ultravision, it was erroneous to limit the construction of “sealed to be
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`waterproof” to panels having an IP rating of IP 65 or higher because the dependent claims claim
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`display panels with IP ratings of IP 65, IP 66, IP 67, and IP 68. (Dkt. 706 at 4 (citing ’782 Patent,
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`claim 6)). Ultravision asserts that the incorporation of IP ratings in a dependent claim gives rise to
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`a presumption that IP ratings are not present in the independent claims. (Id. at 6 (citing Phillips v.
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`AWC Corp., 415 F.3d 1303, 1314–15 (Fed. Cir. 2005)). Ultravision additionally reasserts
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`objections previously raised and overruled regarding the Court’s construction of the “waterproof”
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`terms. (Id. at 6–7; Dkt. No. 420 at 2–4; Dkt. No. 580).
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`The Court reaffirms its prior construction for the reasons noted in the Court’s Claim
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`Construction Order. (Dkt. No. 407 at 20–23). “‘The claims themselves provide substantial
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`guidance as to the meaning of particular claim terms’ and ‘the specification is the single best guide
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`to the meaning of a disputed term.’” Network-1 Techs., Inc. v. Hewlett-Packard Co., 981 F.3d
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`1015, 1022 (Fed. Cir. 2020) (citing Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir.
`
`2005) (en banc)). When the patent specifications at issue discuss the waterproof characteristic of
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`the panels, the specifications do so by discussing the IP rating system. See, e.g., ’782 Patent at
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`7:42–46 (“In the present example, the housing 220 is sealed to prevent water from entering the
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`housing. For example, the housing 220 may be sealed to have an ingress protection (IP) rating such
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`as IP 67, which defines a level of protection against both solid particles and liquid.”). The claims
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`themselves further evaluate “sealed to be waterproof” in terms of an IP rating. Claim 1 of the ’782
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`Patent requires that the claimed modular display panel is “sealed to be waterproof.” Id. at 31:9.
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`Claim 6 of the ’782 Patent covers: “[t]he panel of claim 1, wherein the modular display panel
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`comprises an ingress protection (IP) rating of IP 65, IP 66, IP 67, or IP 68.” Id. at 31:22–24. Finally,
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`5
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`

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`Case 2:18-cv-00100-JRG-RSP Document 721 Filed 09/14/21 Page 6 of 12 PageID #: 30206
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`the specification of the ’782 Patent states that in “lower-cost embodiments where weatherproofing
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`is not as significant, the panels can have an IP 65 or IP 66 rating.” Id. at 5:1–3.
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`Based on the language of the claims and specification of the asserted patents, a person of
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`ordinary skill in the art would understand that an IP water-rating of ‘5’ is the lowest acceptable
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`value to meet the “waterproof” limitation. (See Dkt. No. 297-20 ¶ 58 (“[T]he claims of the ’782
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`patent specifically contemplate that a panel with an IP water rating of ‘5’ may be ‘waterproof.’”)).
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`Ultravision argues that the Court’s construction of “sealed to be waterproof” violated the
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`principles of claim differentiation because (1) the construction reads an IP rating into independent
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`claim 1 of the ’782 patent which otherwise does not mention an IP rating, and (2) the construction
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`of “IP 65 or higher” gives claim 1 the same scope as dependent claim 6 which claims IP ratings of
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`IP 65–68. (Dkt. No. 713 at 2; Dkt. No. 706 at 5–6). The Court rejects both arguments. Regarding
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`the first, claim 1 of the ’782 Patent must be read in light of the specification which consistently
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`defines waterproofing in terms of an IP rating. (See Dkt. No. 297-20 at ¶ 58). Regarding the second,
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`the Court’s construction of independent claim 1 presents no claim differentiation issue because it
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`is broader in scope than dependent claim 6. The Court’s construction includes the maximum IP
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`rating of IP 69 while claim 6 only covers IP ratings of IP 65–68.2 See ’782 Patent 31:22–24.
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`Ultravision finally argues that the prosecution history does not support the Court’s
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`construction. The Court’s Claim Construction Order discussed the prosecution history wherein the
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`patentee amends a claim limitation to recite that “the panel compris[es] an ingress protection (IP)
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`rating of IP 67 or IP 68.” (Dkt. No. 407 at 22; Dkt. No. 304-5 at 10). Ultravision argues that the
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`amendment was merely to improve clarity. (Dkt. No. 706 at 6). However, the Court finds that the
`
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`2 The Court rejects Ultravision’s argument that the IP 69 rating—added to the IP Code in 2013—did not exist at the
`time of invention. (Dkt. No. 713 at 2). The CEO of Ultravision and co-inventor of the asserted patents testified that
`the date of invention for each was July of 2014, after the date Ultravision claims the IP 69 standard was added to the
`IP Code. (Dkt. No. 695 at 29:2–4; Dkt. No. 713 at 2 n.2).
`6
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`patentee goes further and distinguishes the prior art by arguing that “even if the [prior art] did
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`describe waterproofing of display panels, [it] is silent regarding any ingress protection (IP) rating.”
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`(Dkt. No. 304-5 at 10). Additionally, the language in the prosecution history used to describe the
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`degree of water-protection was originally “when the panel is immersed in water,” which mirrors
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`the IP 67 and IP 68 ratings that protect against temporary and continuous “immersion in water.”
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`(Compare Dkt. No. 304-5 at 9, with Dkt. No. 297-21 at ¶ 54). In sum, the claims, specification,
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`and intrinsic evidence indicate that the patentee intended “waterproof” to refer to an IP rating, and
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`the Court finds no error in its construction.
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`Ultravision argues that it was prejudiced because the Court’s erroneous construction of
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`“sealed to be waterproof” resulted in the jury finding the asserted claims not infringed by the
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`accused Absen outdoor products. (Dkt. No. 706 at 7). At trial, Absen argued that its outdoor
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`products were non-infringing because they do not meet the IP rating of at least IP 65 required
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`under the Court’s claim construction. (Dkt. No. 699 at 74:11–75:4). However, as discussed above,
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`the jury was correctly instructed because the Court’s construction was not erroneous. Accordingly,
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`neither error nor prejudice warrants a new trial on infringement of the asserted patents.
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`Ultravision also argues that it was prejudiced because the Court’s erroneous construction
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`of “sealed to be waterproof” resulted in the jury finding the asserted claims invalid over the all-
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`metal Ultrapanel prior art. (Dkt. No. 706 at 8). Again, however, the Court finds no error in its prior
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`claim construction, and thus no error or prejudice exists to warrant a new trial on validity of the
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`asserted patents.
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`ii. Regardless of the Court’s Construction, Ultravision Cannot Show
`Prejudice
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`Assuming arguendo that the Court erred in its construction of the “sealed to be waterproof”
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`term, Ultravision cannot show prejudice because other grounds prohibit a finding of infringement
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`7
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`Case 2:18-cv-00100-JRG-RSP Document 721 Filed 09/14/21 Page 8 of 12 PageID #: 30208
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`and validity. An erroneous instruction regarding claim interpretation that affects the jury’s decision
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`on infringement is grounds for a new trial. Ecolab, Inc. v. Paraclipse, Inc., 285 F.3d 1362, 1373
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`(Fed. Cir. 2002). However, any alleged error in claim construction is harmless if “a reasonable
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`jury would have been required by the evidence to find non-infringement even without the error.”
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`Avid Tech., Inc. v. Harmonic, Inc. 812 F.3d 1040, 1047 (Fed. Cir. 2016) (citing Ecolab, 285 F.3d
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`at 1374 (noting that when an “error in a jury instruction could not have changed the result, the
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`erroneous instruction is harmless”) (internal citations omitted)).
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`Even if the Court’s construction of “sealed to be waterproof” was erroneous, the outcome
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`would remain the same and Ultravision would not be prejudiced. This is because Ultravision failed
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`to offer expert testimony that that the accused products meet the limitation of the three asserted
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`patents that the accused products were “configured for use without a cabinet.” (Dkt. No. 407 at
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`18). The Court sustained Absen’s objection when Ultravision attempted to question its expert, Mr.
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`Credelle, regarding the cabinet limitation because no such discussion was included within Mr.
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`Credelle’s expert report. (Dkt. No. 695 at 285:15–287:19). Accordingly, the jury would have found
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`non-infringement, regardless of the construction of the “sealed to be waterproof” term, because
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`the accused products were not configured for use without a cabinet. Therefore, Ultravision cannot
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`show prejudice as to non-infringement.
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`As to Ultravision’s argument that the Court’s construction of “sealed to be waterproof”
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`prejudiced its validity case, Ultravision fails to show prejudice because ample evidence in the
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`record supports the jury’s finding of invalidity. Ultravision asserts that evidence at trial showed
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`that the all-metal Ultrapanel experienced problems with water leakage in the field, despite the
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`panels being advertised as IP 67 and able to pass an IP 65 rating test. (Dkt. No. 706 at 5, 8).
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`Ultravision argues that its proposed construction, “enclosed so as to be waterproof” where
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`8
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`Case 2:18-cv-00100-JRG-RSP Document 721 Filed 09/14/21 Page 9 of 12 PageID #: 30209
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`waterproof is construed as “preventing water from entering the interior of the panel when exposed
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`to weather,” would have allowed the jury to find the patents valid considering the evidence of the
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`Ultrapanel’s water leakage. (Id. at 9). However, the testimony at trial from Ultravison’s former
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`employee Roger Van Houtan indicated that when “an Ultrapanel . . . was manufactured to its
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`design specifications” it did not leak water. (Dkt. No. 697 at 747:11–13). Accordingly, the jury
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`could have found the asserted patents invalid, even under Ultravision’s proposed construction,
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`because the Ultrapanel did not leak any water when manufactured to its design specifications
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`without any specific tie to specific IP rating.
`
`B. The Motion for New Trial on Validity Based on the Court’s Interpretation of
`“Interchangeable”
`
`As discussed above, the Court construed the terms “display panel[s],” “modular display
`
`panel[s],” “LED display panel[s],” and “panel[s]” to mean “interchangeable display panel for a
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`multi-panel modular display configured for use without a cabinet.” (Dkt. No. 407 at 18). The Court
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`referenced one of the preferred embodiments in the ’782 Patent as an example of
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`interchangeability. (Id. at 15–16). At the pre-trial conference on May 14, 2021, the Court heard
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`argument regarding Absen’s motion in limine to prevent Ultravision from presenting evidence
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`inconsistent with the Markman order. (Dkt. No. 649 at 50:17–19). Absen referenced its pending
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`Daubert motion on Ultravision’s expert Mr. Credelle and argued that Mr. Credelle’s opinions on
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`the interchangeability term contradicted the claim construction order. (Id. at 50:19–23). Absen
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`argued that “interchangeable” only required that panels be the same size and fit in the same space
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`as the panels they replace. (Id. at 54:19–22, 57:11–14, 58:2–8). In contrast, Ultravision argued that
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`“interchangeable” required that panels be the same size, fit in the same space, and function in the
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`same manner as the panels they replace. (Id. at 51:13–15, 53:12–54:5, 54:13–15). The Court
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`9
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`30210
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`determined that there was a fact question regarding meaning of “interchangeable” which should
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`be considered by the jury and denied Absen’s motion in limine. (Id. at 56:11–14, 58:9–11).
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`Subsequently, the Court considered Absen’s Daubert motion to exclude Mr. Credelle’s
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`testimony on interchangeability regarding the validity of the asserted patents. (Dkt. No. 657 at
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`7–10). Absen again argued that Mr. Credelle’s interpretation of the Court’s claim construction for
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`“modular display panel” read out the patent’s preferred embodiment and directly contradicted the
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`Court’s claim construction analysis. (Id. at 9). The Court struck the portion of Mr. Credelle’s
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`opinion because “Mr. Credelle clearly state[d] in his deposition that the precise embodiment the Court
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`cited as an example of the Court’s construction would be read out under his interpretation of the claim
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`construction.” (Id. at 9; see also Dkt. No. 407 at 15–16).
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`Ultravision argues that the Court materially changed its interpretation of “interchangeable”
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`and as a result excluded the validity opinions of its expert, Mr. Credelle. (Dkt. No. 706 at 10; Dkt.
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`No. 713 at 3). According to Ultravision, the primary-secondary panel configuration the Court cited
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`is not described as a preferred embodiment in the patent and is merely an embodiment of a “panel,”
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`not a “modular display panel.” (Dkt. No. 713 at 3). Ultravision argues that the “unclaimed primary-
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`secondary ‘panel’ embodiments in the patent are not the same as the ‘modular display panel’
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`embodiments.” (Id. at 4). In effect, Ultravision takes the position that the Court erroneously
`
`interpreted the claim construction and did not reveal the true interpretation until it excluded Mr.
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`Credelle’s expert report. (Id.).
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`This argument fails on several grounds. First, the Court’s construction included the terms
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`“display panel[s],” “modular display panel[s],” “LED display panel[s],” and “panel[s].” (Dkt. No.
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`407 at 18). “When a pretrial matter not dispositive of a party’s claim or defense is referred to a
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`magistrate judge to hear and decide, . . . [a] party may serve and file objections to the order within
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`14 days after being served with a copy. A party may not assign as error a defect in the order not
`10
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`Case 2:18-cv-00100-JRG-RSP Document 721 Filed 09/14/21 Page 11 of 12 PageID #:
`30211
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`timely objected to.” Fed. R. Civ. P. 72(a). Ultravision never objected to the Court’s construction
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`of the panel terms, and thus has waived its arguments regarding their construction.
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`
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`Further, the Court did not change its interpretation of “interchangeable” and it properly
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`excluded Mr. Credelle’s testimony because—as Mr. Credelle admitted—it read out a specifically
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`cited preferred embodiment under the Court’s construction. (Dkt. No. 657 at 9; Dkt. No. 428-8 at
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`64:23–65:21). Mr. Credelle’s deposition testimony indicates that the embodiment described on
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`column 10 lines 42–55 of the ’782 Patent “describes an example of a modular system,”
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`undermining Ultravision’s argument that the embodiments before Figure 13 are not referred to as
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`modular and disclose master control cabinets and other different types of panels. (Compare Dkt.
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`No. 428-8 at 65:6–7, with Dkt. No. 706 at 11). Accordingly, the Court reaffirms its claim
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`construction of “modular display panel” and finds that the exclusion of Mr. Credelle’s opinions
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`was not erroneous. Thus, the Court rejects Ultravision’s motion for a new trial on this ground.
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`C. The Motion to Amend the Judgement Pursuant to Rule 59(e)
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`Ultravision requests the Court to amend the judgment to reflect the terms of the parties’
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`stipulation that “the Accused Products have not infringed and currently do not infringe the
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`Asserted Claims of the ’791 and ’105 patents.” (Dkt. No. 637 at ¶ 12; see also Dkt. No. 706 at 13).
`
`Absen does not oppose Ultravision’s Rule 59(e) motion to amend to the extent that it reflects the
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`terms of the parties’ stipulation. (Dkt. No. 710 at 3).
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`Under Rule 59(e), a party can move the Court to amend an Order or Judgment within 28
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`days of entry. Fed. R. Civ. P. 59(e). The Court notes that this portion of the Rule 59 motion is
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`unopposed and determines that it should be GRANTED. Accordingly, the Court will enter an
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`amended final judgment reflecting the parties’ stipulation that Absen did not infringe claims 12,
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`11
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`Case 2:18-cv-00100-JRG-RSP Document 721 Filed 09/14/21 Page 12 of 12 PageID #:
`30212
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`13, 14, 15, 19, and 20 of U.S. Patent No. 9,047,791 or claims 15 and 17 of U.S. Patent No.
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`9,666,105.
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`IV. CONCLUSION
`
`For the reasons set forth herein, Plaintiff’s Motion for a New Trial Under Fed. R. Civ. P.
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`59(a)(1)(A) and to Alter the Judgment Pursuant to Fed. R. Civ. P. 59(e) (Dkt. No. 706) is
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`GRANTED-IN-PART and DENIED-IN-PART. Regarding Ultravision’s request for a new trial
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`under Federal Rule of Civil Procedure 59(a)(1)(A), the Court DENIES the Motion. Regarding
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`Ultavision’s request to amend the judgment pursuant to Federal Rule of Civil Procedure 59(e) to
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`reflect the parties’ stipulation as to the ’791 and ’105 patents, the Court GRANTS the Motion.
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`
`
`12
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`.
`
`____________________________________
`RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
`
`So ORDERED and SIGNED this 14th day of September, 2021.
`
`

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