Wednesday, July 12, 2017

CAFC affirms ED Tex in ContentGuard v Google

From ContentGuard v. Google [ Appeals from the United States District Court for the
Eastern District of Texas in Nos. 2:14-cv-00061-JRG, 2:16-cv-00176-JRG, Judge J. Rodney Gilstrap. ]

To be clear, there is no defense to infringement of "practicing the prior art":

The “practicing the prior art defense typically refers
to the situation where an accused infringer compares the
accused infringing behavior to the prior art in an attempt
to prove that its conduct is . . . noninfringing . . . because
the accused conduct is simply practicing the prior art.”
Cordance Corp. v., Inc., 658 F.3d 1330, 1337
(Fed. Cir. 2011) (internal quotation marks omitted). We
have made it “unequivocally clear . . . that there is no
practicing the prior art defense to literal infringement.”
Tate Access Floors, Inc. v. Interface Architectural Res.,
Inc., 279 F.3d 1357, 1365 (Fed. Cir. 2002) (internal quotation
marks omitted). Therefore, parties are prohibited
from arguing that a plaintiff “must prove . . . that . . . the
accused devices embody all the limitations in the asserted
claims, and in addition, [that the] accused devices must
not be an adoption of the combined teachings of the prior
art.” Baxter Healthcare Corp. v. Spectramed, Inc., 49 F.3d
1575, 1583 (Fed. Cir. 1995).

Of objecting:

As an initial matter, ContentGuard concedes that it
did not object on the grounds that Google raised an improper
practicing the prior art defense before the District
Court. Oral Arg. at 6:28–57, http://oralarguments.cafc. Instead,
ContentGuard objected on the grounds of prosecution
disclaimer. See J.A. 10704–07. Because ContentGuard
failed to identify the proper grounds for its objection
below, ContentGuard failed to preserve its claim of error.
See Fed. R. Evid. 103(a) (“A party may claim error in a
ruling to . . . exclude evidence only if . . . (1) . . . a party, on
the record . . . (B) states the specific ground, unless it was
apparent from the context
. . . .” (emphasis added)).
Therefore, these arguments are waived. See Singleton v.
Wulff, 428 U.S. 106, 120 (1976) (“It is the general
rule . . . that a federal appellate court does not consider an
issue not passed upon below.”).2

footnote 2 relates to undeveloped arguments:

Although ContentGuard fashions its arguments to
this court as objections to “practicing the prior
art/prosecution disclaimer,” see, e.g., Appellant’s Br. 38,
41, 43 (internal quotation marks omitted), ContentGuard
provides only bare assertions of prosecution disclaimer
that we will not review, see SmithKline Beecham Corp. v.
Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (declining
to consider undeveloped arguments).

***Separately, in ContentGuard v. Apple:

ContentGuard appeals the District Court’s construction
of the usage right limitation and denial of its Motion
for a New Trial. Apple conditionally cross-appeals the
District Court’s denial of its Motion for Judgment on the
Pleadings Declaring the Patents-in-Suit Patent-Ineligible,
Final Judgment that the Asserted Claims are not invalid,
and the denial of its Motions for JMOL and for a New
Trial. We affirm.


ContentGuard argues that a new trial is warranted
for two reasons. First, ContentGuard argues that the
“[t]he District Court’s construction [of the] usage
right[ limitation] was error because it is inconsistent with
the claims, the specification, the prosecution history, and
the commercial embodiment ContentGuard built.” Appellant’s
Br. 30; see id. at 30–47.4 Second, ContentGuard
contends that the District Court committed “evidentiary
error.” Id. at 48; see id. at 48–51. After articulating the
applicable standards of review, we address these arguments
in turn.

Of evidentiary error:

Although ContentGuard describes
examples of Apple’s purported “gamesmanship,” id. at 51,
ContentGuard fails to identify any erroneous evidentiary
rulings by the District Court that “had a substantial effect
on the outcome of the trial” sufficient to constitute an
abuse of discretion, Verizon Commc’ns, 761 F.3d at 430;
see generally Appellant’s Br., even after Apple identified
the deficiencies of ContentGuard’s contentions, see CrossAppellant’s
Br. 64 (stating that ContentGuard “fails to
identify any specific rulings to be overturned on appeal—
much less explain how they reflect an abuse of discretion”);
see generally Appellant’s Reply. A party’s failure to
make arguments under the operative legal framework
“typically warrants a finding of waiver.” Nan Ya Plastics
Corp. v. United States, 810 F.3d 1333, 1347 (Fed. Cir.
2016) (citing, inter alia, Carducci v. Regan, 714 F.2d 171,
177 (D.C. Cir. 1983) (finding waiver when “counsel has
made no attempt to address the issue” because “[t]he
premise of our adversarial system is that appellate courts
do not sit as self-directed boards of legal inquiry and
research, but essentially as arbiters of legal questions
presented and argued by the parties before them”)).
Because ContentGuard failed to identify the District
Court rulings purportedly requiring reversal or to apply
the appropriate legal framework in its analysis, we decline
to address its arguments here.


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