An Army of Citation Footnotes Crouching in a Field of Jargon is no Substitute Explanation

In Traxcell Technologies, LLC v. Sprint Communications Company, LP, [2020-1852, 2020-1854] (October 12, 2021), the Federal Circuit agreed with the district court’s claim construction, and further that under that construction Traxcell failed to show a genuine issue of material fact as to infringement, and further that several of Traxcell’s claims were indefinite.

The case involves U.S. Patent Nos. 8,977,284, 9,510,320, 9,642,024, and  9,549,388 related to self-optimizing network technology for making “corrective actions” to improve communications between a wireless device and a network.

At issue was the claim limitation “means for receiving said performance data and corresponding locations from said radio tower and correcting radio frequency signals of said radio tower.” The parties agreed that this was a means-plus-function claim, and the corresponding structure was an algorithm identified in the specification.  Traxcell argued that Sprint’s accused technology included a structural equivalent to the disclosed structure under the function-way-result test.  The district court disagreed, reasoning that Traxcell failed to establish that Sprint’s accused technology operates in substantially the same “way.”

The Federal Circuit agreed, noting that the identified structure from the specification was a “very detailed” algorithm, including numerous steps necessary for its function. However, Traxcell neglected to address a significant fraction of that structure.  Accordingly, Traxcell didn’t provide enough evidence for a reasonable jury to conclude that the accused structure performs the claimed function in “substantially the same way” as the disclosed structure.

Also at issue was the limitation “location.”  The parties agreed, and the district court accepted, that “location” meant “location that is not merely a position in a grid pattern.”  However, under this construction Traxell lost.  On appeal Traxell insisted in retrospect that this construction was wrong. The Federal Circuit said that “having stipulated to it, Traxcell cannot pull an about-face.”

With respect to infringement by Sprint, the independent claims all require sending, receiving, generating, storing, or using the “location” of a wireless device.  The district court concluded that Traxcell simply hadn’t shown that the accused technologies used “location” as construed by the court, and the Federal Circuit agreed.  With respect to infringement by Ericson, the district court rejected Traxcell’s argument that the accused technology uses “location” because it collects “information regarding the distance of devices from a base station.”  The Federal Circuit agreed that this was not location information but information to calculate distance.

Also at issue were the limitations “first computer” and “computer.”  Construing these as referring to a single computer, the district court concluded that Traxell had not shown that these limitations were met, and the Federal Circuit agreed.  The Federal Circuit said that Traxell failed to particularize those conclusory assertions with specific evidence and arguments. Traxell argued it provided substantial evidence that the district court ignored, but the Federal Circuit said it was “an army of citation footnotes crouching in a field of jargon. What they lack is explanation.” The Federal Circuit concluded that Traxell’s showing was “simply too unexplained and conclusory.”  The Federal Circuit said that Traxcell has cited swaths of documents, but it Failed to explain how those documents support its infringement theory. It didn’t do so at the trial court, and it didn’t do so on appeal.

Traxcell’s remaining infringement arguments on appeal relied upon  the doctrine of equivalents. But the Federal Circuit concluded that Traxcell surrendered multiple computer equivalents during prosecution of these patents.

Turning to indefiniteness, Claim 1 of the ‘284 patent was found indefinite on two grounds: (1) lack of reasonable certainty about which “wireless device” the term “at least one said wireless device” referred to, and (2) lack of an adequate supporting structure in the specification for the claim’s means-plus-function limitation.  The Federal Circuit found that the claim was indefinite for lack of adequate supporting structure in the specification.

A means-plus-function claim is indefinite if the specification fails to disclose adequate corresponding structure to perform the claimed function.  While Traxcell cited an algorithm, the district court found that Traxcell’s explanation provided nothing more than a restatement of the function, as recited in the claim.  The Federal Circuit concluded that the claim was indefinite, without the need to reach the issue of “wireless device.”

As to infringement of the ‘388 patent, the claims required that the device’s location is (1) determined on the network, (2) communicated to the device, and (3) used to display navigation information.  The district court determined that Traxcell failed to show that the device location was determined by the network, and the Federal Circuit agreed.  Traxcell argued that the network provided data to the devices, but the court observed that it is not data from the network that the claims require. It is that the network itself determines location and transmits the location to the device. The Federal Circuit said that Traxcell has not shown that the network does so with anything but broad and conclusory scattershot assertions.

Providing Software Does Not Make the Provider the “Final Assembler”

In Acceleration Bay LLC v. 2K Sports, Inc., [2020-1700] (October 4, 2021), the Federal Circuit affirmed the district court’s claim construction of U.S. Patent No. 6,910,069 and its grant of summary judgment of non-infringement as to the ’069 and U.S. Patent No. 6,920,497, and dismissed the appeal of non-infringement U.S. Patent Nos. 6,701,344 , 6,714,966

With respect to the ‘069 patent, Acceleration Bay argued that the district court erroneously interpreted the claim term “fully connected portal computer” to include a “m-regular” limitation, i.e., a requirement that each participant in the network is connected to exactly m neighbor participants. Take Two argued that pointed out that the district court did not only construe the term “fully connected portal computer” to include the M-regular limitation, but it also construed the term “each participant being connected to three or more other participants” to include it. Since Acceleration Bay did not challenge the construction of each participant being connected to three or more other participants, Take Two argued that the appeal should fail, and the Federal Circuit agreed.

With respect to the ‘497 patent, the Federal Circuit said that Acceleration Bay proffered a “novel theory, without case law support,” that the defendants are liable for “making” the
claimed hardware components, even though they are in fact made by third parties, because defendant’s accused software runs on them, the customer, not Take Two, completes the system by providing the hardware component and installing Take Two’s software. Thus the “final assembler” doctrine of Centrak (where the accused infringer made hardware products and installed them by connecting them to an existing network to create an infringing system) did not apply.

Footnote in Brief Doesn’t Count; Anyway Construction for Infringement Construction can’t be From Validity

In Commscope Technologies LLC v. Dali Wireless Inc., [2020-1817, 2020-1818] (August 24, 2021) the Federal Circuit reversed the district court’s denial of JMOL of no infringement of U.S. Patent No. 9,031,521, and affirmed denial of JMOL of invalidity.

U.S. Patent No. 9,031,521, relates to wireless communications with portable equipment and handsets, such as mobile phones.  The claim limitation at the center of the parties’ infringement dispute is the first step in the claimed operating phase: “switching a controller off to disconnect signal representative of the output of the power amplifier.”  On appeal CommScope argued that Dali failed to present evidence proving that the FlexWave meets the district court’s construction of the claim term “switching a controller off.” The Federal Circuit agreed.

Dali argued that the claim term “switching a controller off” meant “switching a controller to an off status,” and no further definition was needed.  CommScope, on the other hand, proposed that the claim term meant “[s]witching a controller to a nonoperating state.”  The district court agreed with CommScope, drawing a distinction between: (1) when the controller is turned off and (2) the effect on the system of turning the controller off.

Dali argued (in a footnote) that CommScope’s position was nonsense.  The Federal Circuit said that “an argument that is only made in a footnote of an appellant’s brief is forfeited.”  Further, even if the argument were in the body of the brief, it was insufficiently developed. Finally, and most importantly, the s irreconcilable with Dali’s statements in other portions of its brief.  Thus the Federal Circuit turned to the issue of infringement.  The Federal Circuit pointed out that Dali’s expert’s testimony never states that either the switch or the controller is rendered “nonoperating,” thus does not provide substantial evidence to support the jury’s finding that the accused product meets the district court’s claim construction.  Not only was there a lack of evidence to show that the accused product met the proper construction of the claims, there is unrebutted evidence showing the opposite.  CommScope points to the testimony of its expert, who testified that both the switch and the controller are continuously operating.

The Federal Circuit said that the burden is on a patent owner to show that “the properly construed claim reads on the accused device exactly.”  CommScope’s reliance on the claim terms as construed by the district court is not “hairsplitting,” as Dali argues, but instead properly shows that Dali failed to meet its burden at the district court and that no reasonable jury could have found otherwise.  Dali presented only a literal infringement case, and not a doctrine-of-equivalents alternative. Thus, Dali’s argument that the accused switch/controller is effectively “nonoperating” because it is not passing a feedback signal of the power amplifier of interest is irrelevant because Dali failed to produce evidence below to show that the accused controller is literally nonoperating, as the district court determined was required by the claim.

Finally, Dali’s arguments on infringement cannot stand in view of its arguments of no anticipation.  For these reasons, the Federal Circuit reversed the district court’s denial of CommScope’s motion for JMOL of no infringement of the ’521 patent and affirmed the judgment of the district court in all other respects.

Defendant’s Trademark Avoids Design Patent Infringement

On August 6, 2021, a California federal jury decided that Seirus Innovative Accessories did not infringe Columbia Sportswear’s U.S. Patent No. D657,093. Their verdict is notable because nearly four years ago, a jury reached the opposite result and awarded Colombia Sportswear $3.4 million before the Federal Circuit vacated and remanded the case.

Colombia’s patent was on a wave design applied to the lining of sportswear:

heat reflective material

Seirus used a similar wave patter on its liners, but interspersed the design with its trademark:

Serius materials

The Federal Circuit vacated the verdict because the district court granted summary judgment of infringement, rather than allowing the jury to determine infringement, and because the district court misapplied L.A. Gear for the proposition that logos should be wholly disregarded in the design-infringement analysis.

The jury instruction was fairly standard, and did not even mention the possible effects of the presence of defendant’s trademark on the infringement determination.

Don’t Forget to Claim What the Device Is, Not Just What the Device Does

In Bio-Rad Laboratories, Inc. v. ITC, [2020-1475, 2020-1605] (May 28, 2021), the Federal Circuit affirmed the Com-mission’s determination that 10X did not infringe the claims of U.S. Patent No. 9,500,664, and that 10X infringed the claims of U.S. Patent Nos. 9,636,682 and 9,649,635.

The relate generally to the field of microfluidics, and specifically to the generation of microscopic droplets, and in particular to systems and methods for generating microscopic droplets by using a micro-fluidic device commonly referred to as a “chip.”

Regarding the ‘664 patent, the ALJ determined that because the accused Chip GB does not involve a “sample,” it “does not include a ‘sample well,’ a sample channel, sample-containing droplets, or the claimed ‘droplet generation region.’” The Federal Circuit found that the patent distinguished between samples and reagents, and that the accused product was used with reagents and not samples as required by the claims. 10X and the ITC argued that the ALJ applied the exact construction of “sample” to which the parties agreed, and that Bio-Rad’s challenge is really directed at the ALJ’s factual application of that construction to the accused Chip GB, which the Federal Circuit found was supported by substantial evidence.

Bio-Rad also contended that, regardless whether the monomer solution in the accused Chip GB is a “sample,” the claims recite structural limitations all of which are included in the accused Chip GB. The Federal Circuit rejected the argument for several reasons. First, it was not clear that Bio-Rad raised this argument before the Commission. Second, the argument is premised on rewriting the claims in an oversimplified form and removing all limitations that differentiate the recited structures from each other. The Federal Circuit noted that the inventors did not seek patent protection for a broad claim to “a chip with three wells and interconnecting channels.” Nor did the inventors choose to differentiate the wells and channels from each other based on physical characteristics (e.g., shape, size, depth, location, etc.). Instead, the inventors chose to characterize the wells and channels based on the material contained within them. “Bio-Rad cannot escape that choice by pointing to the general proposition of law that “apparatus claims cover what a device is, not what a device does.”

With respect to the appeal of the finding infringement of the ‘682 and ‘635 patents, 10X argued error with respect to the ITC construction of “droplet-generation region.” However, the Federal Circuit found that the ALJ’s construction of the term “droplet-generation region” was consistent with the intrinsic evidence, and like the ITC, the Federal Circuit rejected 10X’s attempt to impose an unclaimed limitation that requires a channel to extend directly from the sample well to the droplet-generation region. The Federal Circuit found that under the ALJ’s correct construction, substantial evidence supported the Commission’s finding that the use of 10X’s accused chips directly infringes the asserted claims of the ’664, ’682, and ’635 patents.

On the issues of contributory infringement and inducement of infringement, the Federal Circuit concluded there was substantial evidence to support the ALJ’s findings.

Applying Vitiation to “Annular Cover” was Circular Reasoning

In Edgewell Personal Care Brands, LLC v. Munchkin, Inc., [2020-1203] (May 26, 2021 modifying March 9, 2021, opinion), the Federal Circuit vacated-in-part, reversed-in-part, and remanded the district court’s summary judgement of no infringement of U.S. Patent Nos. 8,899,420 and 6,974,029 on Diaper Genie refills.

The claims of the ‘420 patent were directed to a cassette intended for use in the Diaper Genie.  The Federal Circuit noted that a cassette has a clearance that will ensure proper insertion whether a space remains after insertion or not. We thus conclude that the district court erred by adding this limitation into its construction. The clearance limitation is satisfied when the cassette itself is constructed with a clearance. The claim does not require a clearance after insertion; in fact, such a requirement would be at odds with many of the disclosed embodiments and is simply not required by the claims. The Federal Circuit reasoned: “The clearance limitation is satisfied when the cassette itself is constructed with a clearance. The claim does not require a clearance after insertion; in fact, such a requirement would be at odds with many of the disclosed embodiments and is simply not required by the claims.”

With respect to the claims of the ‘029 patent, the Federal Circuit found that although the district court correctly construed “annular cover” as being a single structure, the district court erred in concluding that Edgewell’s theory of infringement under the doctrine of equivalents vitiates or renders meaningless the “annular cover” claim element. The Federal Circuit explained that vitiation has its clearest application where the accused device contains the antithesis of the claimed structure.  But warned that, as it explained in Deere & Co. courts should be cautious not to shortcut this inquiry by identifying a ‘binary’ choice in which an element is either present or not present.  The determination of equivalence depends not on labels like ‘vitiation’ and ‘antithesis’ but on the proper assessment of the language of the claimed limitation and the substantiality of whatever relevant differences may exist in the accused structure.”). Applying these concepts to the facts of this case, the Federal Circuit concluded that the district court erred in evaluating the element as a binary choice between a single-component structure and a multi-component structure, rather than evaluating the evidence to determine whether a reasonable juror could find that the accused products perform substantially the same function, in substantially the same way, achieving substantially the same result as the claims. Because the district court based its grant of summary judgment of noninfringement of the ’420 patent on an erroneous construction, the Federal Circuit vacated that judgment and remanded. Because the district court erred in granting Munchkin summary judgment of noninfringement of the ’029 patent, the Federal Circuit reversed that judgment and remanded

“Upper” and “Lower” Claim Limitations Leaves Patent Owner Feeling Down

The Tops Company, Inc. sued Koko’s Confectionery & Novelty for infringement of U.S. Patent No. 6,660,316, and for trade dress infringement.

The claims of the ‘316 patent required upper and lower chambers:

However the district found on summary judgment that while Koko’s Squeezy Squirt Pop had two chambers, they were not upper and lower chambers, nor were they equivalent to upper and lower chambers.

Directional references in claims such as upper and lower, left and right, top and bottom, etc., can cause problems are best avoided unless the directions are important. While Topps may still prevail on appeal, the wording of the claims has complicated their enforcement efforts.

It is Importation that Infringes under 35 USC § 271(g), Not Manufacture

In Syngenta Crop Protection, LLC v. Willowood, LLC, [2018-1614, 2018-2044](December 18, 2019) affirmed-in-part, reversed-in-part, vacated-in-part, and remanded the district court’s judgment in favor of all defendants on infringement of one patent at issue; and against Willowood, LLC, and Willowood USA, LLC, on infringement of the remaining three patents.

The Federal Circuit remanded the dismissal of Syngenta’s copyright claim for a more detailed determination whether FIFRA required defendants to copy the copied portions of Syngenta’s labels.

In a case of first impression reversed the district court’s requirement that that all steps of a patented process be performed by or at the direction or control of a single entity before infringement liability under 35 USC 271(g) can attach.

Section 271(g) provides that “[w]hoever without authority imports into the United States or offers to sell, sells, or uses within the United States a product which is made by a process patented in the United States shall be liable as an infringer.” The Federal Circuit said that this language makes clear that the acts that give rise to liability under § 271(g) are the importation, offer for sale, sale, or use within this country of a product that was made by a process patented in the United States. The Federal Circuit said that nothing in the statutory language suggests that liability arises from practicing the patented process abroad. Rather, the focus is only on acts with respect to products resulting from the patented process. The Federal Circuit concluded that because the statutory language as a whole is clear that practicing a patented process abroad cannot create liability under § 271(g), whether that process is practiced by a single entity is immaterial to the infringement analysis under that section.

The Federal Circuit otherwise affirmed the infringement determinations.

When There is a Dispute Regarding the Proper Scope of the Claims, the Court must Resolve that Dispute

In Omega Patents, LLC v. Calamp Corp., [2018-1309] (April 8, 2019), the Federal Circuit affirm the judgment of no invalidity, affirm-in-part, reverse-in-part, vacate-in-part, and remand the judgment as to direct infringement, and vacated the remainder of the judgment and remanded for a new trial on indirect infringement, compensatory damages, willful infringement, enhanced damages, and attorney’s fees, in a case involving U.S. Patent Nos. 6,346,876, 6,756,885, 7,671,727, and 8,032,278 on multi-vehicle compatible systems that can remotely control various vehicle functions such as remote vehicle starting.

After a trial, a jury found all asserted claims to be not invalid and infringed, and the jury also found that CalAmp willfully infringed a valid patent, and awarded Omega $2.98 million in compensatory damages, which the district court trebled for willfulness, awarded attorney’s fees to Omega, added damages for post-verdict sales and pre-judgment interest, for a total of $15 million, with an on-going royalty rate of $12.76 per unit.

Although CalAmp appealed the construction of several claim terms, the Federal Circuit found that these terms had no impact on the prior art actually introduced at trial, and CalAmp had failed to identify to the district court any other prior art that would be impacted by the claim construction ruling. Thus, the Federal Circuit declined CalAmp’s invitation to speculate as to how additional prior art may have been rendered irrelevant under the court’s claim construction. While CalAmp’s challenge to the district court’s claim construction was preserved under Federal Rule of Civil Procedure 51 for purposes of challenging the jury instructions, CalAmp failed to satisfy the requirements of Federal Rule of Civil Procedure 46 by not seeking admission into evidence of, or at least specifically identifying, the additional prior art.

On the issue of direct infringement, several of the claims required “a transmitter and a receiver for receiving signals from said transmitter.” However the Federal Circuit found that the evidence at trial only showed that the “transmitter” transmits signals to a “receiver” on a cell tower, which can then relay that information to CalAmp’s servers, and the “receiver” receives signals from a “transmitter” on the cell tower. The Federal Circuit agreed that CalAmp did not provide all of the elements of the system, as was entitled to JMOL on direct infringement of these claims.

On the issue of induced infringement, the Omega argued that CalAmp’s customers directly infringed when they used CalAmp’s products. The Federal Circuit noted that for purposes of infringement, a party must put the invention into service, i.e., control the system as a whole and obtain benefit from it, and said there was evidence from which the jury could infer that customers controlled and used the system and received the required benefits. Based on the record, the Federal Circuit conclude that this theory does not warrant setting aside the jury verdict.

The induced infringement of some of the claims depending on the construction of “vehicle device,” which the district court refused to construe, defaulting to the ordinary meaning. The Federal Circuit said that when the parties raise an actual dispute regarding the proper scope of the claims, the court, not the jury, must resolve that dispute. The Federal Circuit added that the court is not absolved of this duty to construe the actually disputed terms just because the specification of the patent defines the term. Even if the parties had agreed to the construction, the Federal Circuit said that the district court was still obligated to give that construction to the jury in its instructions. The Federal Circuit said: in the absence of guidance in the form of proper claim construction, the jury lacked a yardstick by which to measure the arguments and evidence on this issue and assess whether Omega’s infringement theory was a valid one. In particular the Federal Circuit could not discern if the jury found infringement of the claims at issue based upon a theory of infringement inconsistent with the proper construction. Therefore, the Federal Circuit set aside aside the jury’s verdict of infringement, and ordered a new trial.

On the issue of induced infringement, CalAmp argued that the jury’s verdict could not be sustained because the verdict form given to the jury (proposed by CalAmp) did not provide written questions on the issue of inducement. CalAmp argued that the absence of such questions on induced infringement precluded the jury from awarding damages on that basis, but the Federal Circuit said that one cannot use the answers to special questions as weapons for destroying the general verdict. The Federal Circuit concluded that induced infringement was properly before the jury, and, thus, CalAmp was not entitled to JMOL of no induced infringement on that basis.

However CalAmp also complained about the district court’s exclusion of testimony as to CalAmp’s state of mind substantially prejudiced CalAmp’s ability to present its defense for indirect infringement. The Federal Circuit found that this exclusion deprived CalAmp of the opportunity to support its defense that there was no inducement because it reasonably believed it did not infringe the patents at the time CalAmp launched the products at issue. The Federal Circuit vacated the jury’s findings as to indirect infringement and remand for a new trial.

On the issue of damages, the Federal Circuit found that although the infringement of the one claim that was sustained, this was not enough to support a damage award based upon all of the products, and thus the Federal Circuit vacated the compensatory damage award.

On the issue of enhanced damages for willful infringement, the jury was asked whether it had found CalAmp willfully “infringed a valid patent,” without specifying which patent or patents or which claim or claims were willfully infringed. Based on the vacation of several findings of infringement the Federal Circuit could not determine which patents or claims, so the finding of willfulness had to be vacated as did the resulting enhanced damages and attorney’s fees award by the district court, both of which were explicitly based on the willful infringement finding.

Many lessons form this case, including insisting on a claim construction of disputed terms, and being extremely careful drafting jury verdict forms.

Infringement Prior to Notice of Patent Could Not be Willful

In SRI International, Inc., v. Cisco Systems, Inc., [2017-2223] (March 20, 2019), the Federal Circuit affirmed the district court’s denial of summary judgment of ineligibility, adopt its construction of “network traffic data,” and affirmed its summary judgment of no anticipation. The Federal Circuit vacated and remanded the district court’s denial of judgment as a matter of law of no willful infringement, and therefore vacate the district court’s enhancement of damages. The Federal Circuit also vacated the district court’s award of attorneys’ fees and remanded for recalculation. Finally, the Federal Circuit affirmed the district court’s award of ongoing royalties on postverdict sales of products that were actually found to infringe or are not colorably different.

The litigation involved U.S. Patent Nos. 6,484,203 and 6,711,615 directed to network intrusion detection. The Federal Circuit rejected Cisco’s assertion that the claims are just directed to analyzing data from multiple sources to detect suspicious activity. The Federal Circuit found that instead, the claims are directed to an improvement in computer network technology. The focus of the claims is on the specific asserted improvement in computer capabilities—that is, providing a network defense system that monitors network traffic in real-time to automatically detect large-scale attacks. The Federal Circuit concluded that the claims are not directed to an abstract idea under step one of the Alice analysis, and thus did not reach step two.

On claim construction, the Federal Circuit held that SRI’s statements in the prosecution history do not invoke a clear and unmistakable surrender of all preprocessing, including decryption, decoding, and parsing. Accordingly, the Federal Circuit agreed with the district court’s construction of “network traffic data” to mean “data obtained from direct examination of network packets.”

On the issue of anticipation, the Federal Circuit held that SRI’s statements in the prosecution history did not invoke a clear and unmistakable surrender of all preprocessing, including decryption, decoding, and parsing. Accordingly, the Federal Circuit agreed with the district court’s construction of “network traffic data” to mean “data obtained from direct examination of network packets.” On this record, the Federal Circuit concluded that summary judgment was appropriate. The prior art did not expressly disclose directly examining network packets as required by the claims—especially not to obtain data about network connection requests.

On the denial of JMOL on the issue of willfulness, the Federal Circuit agreed that the jury’s finding that Cisco willfully infringed the patents-in-suit prior to receiving notice thereof is not supported by substantial evidence and therefore vacated and remanded them. Among other things, SRI argued that Cisco employeees did not read the patent before their depositions, but the Federal Circuit noted that it is undisputed that these Cisco employees were engineers without legal training. Given Cisco’s size and resources, the Federal Circuit said it was unremarkable that the engineers—as opposed to Cisco’s in-house or outside counsel—did not analyze the patents-in-suit themselves. The Federal Circuit also noted that it was undisputed that Cisco did not know of SRI’s patent until SRI sent its notice letter to Cisco, and that this notice letter was sent years after Cisco independently developed the accused systems and first sold them. Under these circumstances the Federal Circuit vacated the finding of willfulness prior to the Notice letter, and remanded for the district court to determine whether the finding of willfulness after the Notice letter was supported by substantial evidence. The Federal Circuit also vacated the award of enhanced damages and remanded for further consideration along with willfulness.

The Federal Circuit vacated the district court’s award of attorneys’ fees under § 285, remanding solely for recalculation. The Federal Circuit found no error in the district court’s determination that the case was exceptional, agreeing that Cisto had “crossed the line in several regards.” However, there were several entries included by mistake, and the Federal Circuit remanded only for removal of attorney hours clearly included by mistake and consequent recalculation of reasonable attorneys’ fees.

Finally, on the issue of on-going royalty, the Federal Circuit found that the district court did not abuse its discretion in awarding a 3.5% compulsory license for all post-verdict sales. Cisco complained that the court was obligated to consider its design-arounds. The Federal Circuit agreed that Cisco was untimely, finding Cisco did not redesign its products until after trial, and Cisco did not file its motion to supplement until after completion of post-trial briefing.