Parkervision, Inc. v. Qualcomm Incorporated , 627 F. App'x 921 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PARKERVISION, INC., A FLORIDA
CORPORATION,
Plaintiff-Appellant
v.
QUALCOMM INCORPORATED, A DELAWARE
CORPORATION,
Defendant-Cross-Appellant
______________________
2014-1612, -1655
______________________
Appeals from the United States District Court for the
Middle District of Florida in No. 3:11-cv-00719-RBD-JRK,
Judge Roy B. Dalton, Jr.
______________________
ON PETITION FOR REHEARING
______________________
Decided: October 2, 2015
______________________
DONALD ROBERT DUNNER, Finnegan, Henderson,
Farabow, Garrett & Dunner, LLP, Washington, DC, for
plaintiff-appellant. Also represented by ERIK R. PUKNYS,
Palo Alto, CA; JOSHUA WRIGHT BUDWIN, KEVIN LEE
2 PARKERVISION, INC. v. QUALCOMM INCORPORATED
BURGESS, McKool Smith, PC, Austin, TX; DOUGLAS AARON
CAWLEY, Dallas, TX.
TIMOTHY TETER, Cooley LLP, Palo Alto, CA, for de-
fendant-cross-appellant. Also represented by BENJAMIN G.
DAMSTEDT, JEFFREY S. KARR, LORI R. MASON, STEPHEN C.
NEAL; JEFFREY A. LAMKEN, MARTIN TOTARO, MoloLamken
LLP, Washington, DC; JOHN M. WHEALAN, Chevy Chase,
MD.
______________________
Before LOURIE, BRYSON, and CHEN, Circuit Judges.
BRYSON, Circuit Judge.
ParkerVision seeks rehearing of our decision affirm-
ing the judgment of non-infringement as a matter of law.
We deny the petition.
In the panel opinion, we agreed with the district court
that Dr. Prucnal’s admission that the baseband signal is
created at the output of the mixer and before the storage
capacitor is fatal to ParkerVision’s infringement case.
ParkerVision contends that we misinterpreted Dr. Pruc-
nal’s testimony: It now asserts that the signal coming out
of the mixer is a “modulated” baseband, i.e., a baseband
being carried on the carrier signal, while the real demodu-
lated baseband is generated only when the switches are
opened and the storage capacitors are discharged. 1
1 This is ParkerVision’s third attempt to explain away
the inconsistencies in Dr. Prucnal’s testimony. In re-
sponse to Qualcomm’s motion for judgment as a matter of
law, ParkerVision raised the “two baseband signals”
theory before the district court, as we noted in the panel
opinion. See slip op. at 9-10. On appeal, ParkerVision
disclaimed that theory and replaced it with the “one and
the same point” argument, which we rejected in the panel
PARKERVISION, INC. v. QUALCOMM INCORPORATED 3
Further, ParkerVision claims that the accused products
would be inoperable under our understanding of the
technology, because a “sampling mixer” cannot downcon-
vert without involving storage capacitors. Neither argu-
ment is persuasive.
No evidence supports ParkerVision’s newly minted
theory that the signal coming out of the double-balanced
mixer is not the baseband, but instead is a baseband
being “modulated” or “carried” on the carrier signal. As
noted in the panel opinion, Dr. Prucnal repeatedly identi-
fied the output of the mixer as the baseband, see, e.g.,
A10944:1-9 (identifying the output of the crisscrossed
circuit structure shown on page A6992 to be “the base-
band”); A11052:12-13 (identifying the “baseband output”
of the mixer which is shown on A6992); A10988:8-14
(agreeing that the “baseband was coming out of the mix-
er” shown on A6992); nowhere did he describe the mixer
output as a baseband being “modulated” or “carried” on a
carrier signal. Contrary to ParkerVision’s assertion, Dr.
Prucnal admitted that the carrier signal (i.e., the RF
signal) has been “eliminated” at the mixer output. See
A10949:2-11.
ParkerVision seizes upon an exchange during trial in
which Qualcomm’s attorney asked Dr. Prucnal to confirm
that “the output of the mixer includes the baseband
signal.” See Pet. at 6 (citing A10943:7-12). At most, that
testimony suggests that something other than the base-
band exists at the output of the mixer; it does not prove
that the carrier signal is part of the output of the mixer,
opinion. See slip op. at 10-12. ParkerVision now concedes
that it no longer relies on the “one and the same point”
argument. See Pet. at 7-8 n.5.
4 PARKERVISION, INC. v. QUALCOMM INCORPORATED
as ParkerVision asserts. 2 As stated above, Dr. Prucnal
admitted that the carrier signal has been “eliminated” at
that point. Thus, no evidence supports ParkerVision’s
“modulated baseband” theory. We accordingly reject its
contention that we misinterpreted Dr. Prucnal’s testimo-
ny in that regard.
We also disagree with ParkerVision’s second argu-
ment that our understanding of the invention would lead
to an inoperable device. The gist of the argument is that
any downconverting mixer that “samples”—a limitation
found to be met by the accused 25% duty-cycle products—
must necessarily work with capacitors to generate a
baseband signal; in other words, a finding that the “sam-
pling” limitation is met in a mixer means that capacitors
must be involved in generating the baseband signal there.
The purported relationship between the “sampling”
limitation and the “generating” limitation is raised for the
first time in the petition. The district court construed
“sampling” to mean “reducing a continuous-time signal to
a discrete-time signal,” and “generating” to have its plain
and ordinary meaning. Neither of those constructions is
disputed on appeal. To the extent ParkerVision now
suggests that “sampling” means not only “reducing a
continuous-time signal to a discrete time signal,” but also
that the sampled energy must be processed by a capacitor,
this is a new claim construction argument “raised for the
first time after trial” and thus is waived. See Broadcom
Corp. v. Qualcomm Inc., 543 F.3d 683, 694 (Fed. Cir.
2008).
In any event, the record does not support ParkerVi-
sion’s assertion that any mixer that samples must neces-
2 In the panel opinion, we noted that unwanted
“transmit jamming” signals exist at the mixer output, in
addition to the baseband. See slip op. at 8.
PARKERVISION, INC. v. QUALCOMM INCORPORATED 5
sarily work with capacitors to generate a baseband signal.
ParkerVision cites extensively to the patents at issue to
support that proposition. Those citations, however, only
establish that capacitors must be involved to generate a
baseband signal in ParkerVision’s own inventions; they
provide no support for the broad assertion that “sampling”
always entails generating the baseband through a capaci-
tor.
ParkerVision next faults the court for not resolving
the parties’ dispute regarding the location of the storage
capacitors. See slip op. at 7 n.4. According to ParkerVi-
sion, should we agree that some capacitors are found
inside the accused products’ mixers, we would have to
conclude that those capacitors are involved in generating
the baseband signal. As we explained before, however,
even assuming some capacitors are located inside the
mixer, Dr. Prucnal admitted that the baseband signal
precedes those capacitors as well. See A10944:1-9 (admit-
ting the baseband signal exists before it reaches the
capacitors shown on A6991); Appellant’s Reply Br. at 8-9
(referring to capacitors shown on A6991 as “capacitors
inside the mixer”); Pet. at 11 (same). Thus, resolving the
dispute regarding the location of the capacitors in Par-
kerVision’s favor would not affect Dr. Prucnal’s opinion
that the baseband exists before it reaches the capacitors
and would not prove that the capacitors inside the mixer,
if any, are involved in generating the baseband signal.
Finally, ParkerVision contends that we improperly
substituted our own credibility determination for the
jury’s when we concluded that the jury’s verdict cannot be
sustained based on Dr. Prucnal’s testimony. Dr. Prucnal
gave two contradictory opinions regarding the role of the
storage capacitors in generating the baseband signal,
stating on one hand that the mixer-capacitor combination
generates the baseband, and on the other hand that the
mixer itself creates the baseband. ParkerVision argues
that the jury is free to pick and choose from these two
6 PARKERVISION, INC. v. QUALCOMM INCORPORATED
contradictory theories and that the jury’s decision in that
regard is beyond the scope of our review. We disagree.
It is true that when “there is an evidentiary basis for
the jury verdict, the jury is free to discard or disbelieve
whatever facts are inconsistent with its conclusion.”
Lavender v. Kurn, 327 U.S. 645, 652 (1946). In fact, the
finder of fact is normally free to believe a witness, even if
that witness’s testimony is impeached and even if the
witness’s “direct and cross-examination are not entirely
consistent.” Presidio Components, Inc. v. Am. Tech.
Ceramics Corp., 702 F.3d 1351, 1359 (Fed. Cir. 2012).
The verdict, however, must be supported by “substantial
evidence,” which means “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” See Richardson v. Perales, 402 U.S. 389, 401
(1971).
When the party with the burden of proof rests its case
on a witness’s unexplained self-contradictory testimony,
the court, in appropriate cases, may conclude that the
evidence is insufficient to satisfy that standard. See
Johns Hopkins Univ. v. Datascope Corp., 543 F.3d 1342,
1348-49 (Fed. Cir. 2008) (despite expert’s opinion that the
S-wire in the ProLumen device contacts the lumen in
three dimensions, “no reasonable jury could have found
that the ProLumen device literally met this limitation
based on [the expert’s] opinion, given his contradictory
testimony that the device only contacts the vessel in two
places”); Doucet v. Diamond M Drilling Co., 683 F.2d 886,
892 (5th Cir. 1982) (“the self contradictory testimony of a
single witness” did not satisfy the burden of establishing
actionable negligence “when that statement is balanced
against all the other uncontradicted evidence in this
record”); cf. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S.
795, 806 (1999) (“a party cannot create a genuine issue of
fact sufficient to survive summary judgment simply by
contradicting his or her own previous sworn statement . . .
without explaining the contradiction or at least attempt-
PARKERVISION, INC. v. QUALCOMM INCORPORATED 7
ing to resolve the disparity”). As the district court held,
this is such a case.
ParkerVision bore the burden to prove that the stor-
age capacitors in Qualcomm’s devices are involved in
generating the baseband signal. Its expert first stated
that the capacitors are involved in the generating process,
but then admitted on cross-examination that the base-
band signal already exists before the current reaches the
capacitors. ParkerVision made no attempt to reconcile
the two conflicting strands of its expert’s testimony. Nor
did it introduce any other evidence that might have
supported the expert’s initial statement that the capaci-
tors are involved in generating the baseband signal.
Moreover, as the district court noted in its order granting
judgment as a matter of law, the expert’s direct and
redirect testimony was “notably vague when it came to
the generating limitation”; in contrast, his testimony on
cross-examination was “unequivocal” that the double
balanced mixers create the baseband before the lower
frequency signal reaches the capacitors. Based on the
totality of the evidence at trial, we agree with the district
court that no reasonable finder of fact could come to a
confident conclusion that the capacitors have a role in
generating the baseband. The district court was therefore
correct in concluding that the jury verdict was not sup-
ported by substantial evidence.
The petition for rehearing is denied.