TVIIM case at CAFC illustrates hazards of not contesting claim constructions

The CAFC affirmed ND Cal and TVIIM lost:


TVIIM, LLC (“TVIIM”) sued McAfee, Inc. (“McAfee”)
in the United States District Court for the Northern
District of California for infringement of U.S. Patent No.
6,889,168 (“’168 patent”). A jury determined that McAfee
did not infringe the ’168 patent and that the ’168 patent
was invalid. After the jury verdict, TVIIM filed motions
for judgment as a matter of law (“JMOL”) and for a new
trial. The district court denied both motions, and TVIIM
filed this appeal challenging the jury verdict and the
district court’s denial of its post-verdict motions. We
affirm because substantial evidence supports the jury’s
findings of non-infringement and invalidity under a
uniform construction of the relevant claim terms, and the
district court did not abuse its discretion in denying a new
trial.



The reference to the jury verdict was puzzling in that
anticipation/obviousness were not distinguished and the
jury should not be determining inequitable conduct:


The jury’s general verdict of invalidity did not distinguish between
obviousness and anticipation. The inequitable conduct
issue is not subject to this appeal.



Claim construction arguments had not been preserved.
Of non-infringement:


We next address whether substantial evidence supports
the jury’s verdict of non-infringement based on
using the same construction it used for its invalidity
verdict. See Harper, 533 F.3d at 1021. We conclude that
the jury verdict is supported by substantial evidence.



Of the issue of conflicting experts:


Given the
conflicting expert testimony, we find that a reasonable
mind might accept Dr. Rubin’s testimony over
Dr. Garuba’s. Thus, substantial evidence supports the
jury’s verdict of non-infringement. See Versata Software,
Inc. v. SAP Am., Inc., 717 F.3d 1255, 1263 (Fed. Cir. 2013)
(affirming jury award as supported by substantial evidence
despite competing expert testimony).


Of [possible] harmless error:


Thus, by TVIIM’s own admission, the jury’s invalidity
determination could be proper under “any single ordinary
meaning construction.” Opening Br. 73. This concession
is determinative, because even if we were to find an
inconsistent verdict, substantial evidence under “any”
construction supports the jury’s verdict of invalidity.
Consequently, any potential error by the jury regarding
non-infringement was harmless. Cf. Senju Pharm. Co.
v. Lupin Ltd., 780 F.3d 1337, 1353 (Fed. Cir. 2015) (affirming
the district court’s invalidity finding and therefore
not reaching non-infringement arguments); MobileMedia
Ideas LLC v. Apple Inc., 780 F.3d 1159, 1173 (Fed. Cir.
2015) (holding that because the patent was invalid, the
court “need not reach Apple’s argument that its accused
iPhones do not infringe”).