Apple wins at CAFC
GPNE Corp. (“GPNE”) appeals from a final decision of
the United States District Court for the Northern District
of California. GPNE Corp. v. Apple Inc., 108 F. Supp. 3d
839 (N.D. Cal. 2015). Following a seven-day jury trial,
the district court held that the asserted claims of U.S.
Patent No. 7,570,954 (“’954 patent”) and U.S. Patent No.
7,792,492 (“’492 patent”) (collectively, “patents at issue”)
were not infringed by Apple, Inc. (“Apple”). We affirm
What was argued:
On appeal, GPNE argues that the district court’s noninfringement
judgment should be reversed because (1) it
is based on an erroneous construction of “node;” and
(2) the court violated O2 Micro International Ltd. v.
Beyond Innovation Technology Co., 521 F.3d 1351, 1362
(Fed. Cir. 2008), by allowing the jury to decide the meaning
of “pager.” Apple responds that the district court
handled these issues correctly and also offers several
alternative grounds to affirm the district court’s noninfringement
The issue of waiver arose:
On appeal, Apple argues that GPNE waived its ability
to raise an O2 Micro challenge because it never requested
a construction for “pager” and the concerns it expressed at
Markman were insufficient to put this issue in dispute.
We disagree. In general, “litigants waive their right
to present new claim construction disputes if they are
raised for the first time after trial.” Lazare Kaplan Int’l,
Inc. v. Photoscribe Techs., Inc., 628 F.3d 1359, 1376 (Fed.
Cir. 2010) (internal quotation marks omitted); Broadcom
Corp. v. Qualcomm Inc., 543 F.3d 683, 694 (Fed. Cir.
2008) (finding waiver where parties did not propose that a
term be construed at Markman and plaintiff argued for a
construction in its post-trial motions). As just noted, that
is not what happened here. And when GPNE sought a
clarifying instruction on “node” before the case went to
the jury, it was hardly reversing course on a point it had
“implicitly conceded” earlier. Eli Lilly & Co. v. Aradigm
Corp., 376 F.3d 1352, 1360 (Fed. Cir. 2004) (finding
implicit concession on need for construction by failure to
seek any construction before evidence closed). To the
contrary, at Markman, the parties disputed the construction
of “node,” including whether “pager” would be an
appropriate word to help define the scope of “node.” The
parties presented opposing views on this point: GPNE
argued that the parties would “get into the definition of,
what is a pager?,” while Apple responded that the parties
were not “setting up a situation where we construe the
construction.” J.A. 1568, 1571. The district court was
aware of this dispute, as it itself pressed Apple on this
point. J.A. 1569–70. In these circumstances, we find no
waiver by GPNE of the objections it raised to the construction
of “node” before the case went to the jury.
to GPNE, because the district court allowed these
arguments, the jury was left to determine the meaning of
“pager,” which violated O2 Micro.
We disagree. In O2 Micro, we held that “[w]hen the
parties present a fundamental dispute regarding the
scope of a claim term, it is the court’s duty to resolve it.”
521 F.3d at 1362. This is because “the ultimate question
of construction [is] a legal question,” which “is for the
judge and not the jury.” Teva Pharm. USA, Inc., 135 S.
Ct. at 838, 842. This duty, however, is not without limit.
Where a district court has resolved the questions about
claim scope that were raised by the parties, it is under no
obligation to address other potential ambiguities that
have no bearing on the operative scope of the claim. Eon
Corp. IP Holdings v. Silver Spring Networks, 815 F.3d
1314, 1318 (Fed. Cir. 2016) (“[A] court need not attempt
the impossible task of resolving all questions of meaning
with absolute, univocal finality.”); see also Function
Media, L.L.C. v. Google, Inc., 708 F.3d 1310, 1326 (Fed.
Cir. 2013) (“Nearly every patent case will involve some
amount of ‘word games,’ because claims and claim constructions
are, after all, just words.”); Acumed LLC v.
Stryker Corp., 483 F.3d 800, 806 (Fed. Cir. 2007) (“[A]
sound claim construction need not always purge every
shred of ambiguity.”); Vivid Techs., Inc. v. Am. Sci. &
Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (“[O]nly
those terms need be construed that are in controversy,
and only to the extent necessary to resolve the controversy.”).