Contentguard Holdings, Inc. v. Google, Inc.

NOTE: This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

______________________

CONTENTGUARD HOLDINGS, INC.,

Plaintiff-Appellant

v.

GOOGLE, INC., HTC AMERICA, INC., HTC

CORPORATION, HUAWEI DEVICE USA, INC.,

HUAWEI TECHNOLOGIES CO., LTD., MOTOROLA

MOBILITY LLC, SAMSUNG ELECTRONICS

AMERICA, INC., SAMSUNG ELECTRONICS CO.,

LTD.,

Defendants-Cross-Appellants

______________________

2016-2430, 2016-2431, 2016-2445, 2016-2446, 2016-2447,

2016-2448

______________________

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.

______________________

Decided: July 12, 2017

______________________

DIRK D. THOMAS, McKool Smith, P.C., Washington,

DC, argued for plaintiff-appellant. Also represented by

ROBERT A. COTE, RADU A. LELUTIU, New York, NY.

2 CONTENTGUARD HOLDINGS, INC. v. GOOGLE, INC.

ROBERT UNIKEL, Arnold & Porter Kaye Scholer LLP,

Chicago, IL, argued for all defendants-cross-appellants.

Defendants-cross-appellants Google, Inc., Motorola Mobil-

ity LLC also represented by DEANNA KEYSOR; MICHAEL J.

MALECEK, PETER E. ROOT, Palo Alto, CA. Defendant-cross

appellant Google, Inc. also represented by DAN L.

BAGATELL, Perkins Coie LLP, Hanover, NH.

TERRY DUANE GARNETT, Loeb & Loeb LLP, Los Ange-

les, CA, for defendants-cross-appellants HTC America,

Inc., HTC Corporation.

SCOTT F. PARTRIDGE, Baker Botts, LLP, Houston, TX,

for defendants-cross-appellants Huawei Device USA, Inc.,

Huawei Technologies Co., Ltd. Also represented by

BRADLEY BOWLING, MICHELLE JACOBSON EBER.

NEIL P. SIROTA, Baker Botts, LLP, New York, NY, for

defendants-cross-appellants Samsung Electronics Ameri-

ca, Inc., Samsung Electronics Co., Ltd. Also represented

by ROBERT LAWRENCE MAIER, JENNIFER COZEOLINO

TEMPESTA.

______________________

Before DYK, REYNA, and WALLACH, Circuit Judges.

WALLACH, Circuit Judge.

This appeal is related to ContentGuard Holdings, Inc.

v. Apple Inc. (Apple), also decided today. See Nos. 2016-

1916, 2016-2007, slip op. at 1–13 (Fed. Cir. July 12, 2017).

Appellant ContentGuard Holdings, Inc. (“ContentGuard”)

sued Cross-Appellants Google, Inc. et al (“Google”) for

patent infringement in the U.S. District Court for the

Eastern District of Texas (“District Court”). Relevant

here, ContentGuard alleged that Google infringed U.S.

Patent Nos. 6,963,859 (“the ’859 patent”), 7,823,072 (“the

’072 patent”), 8,370,956 (“the ’956 patent”), 8,393,007

(“the ’007 patent”), and 8,001,053 (“the ’053 patent”)

CONTENTGUARD HOLDINGS, INC. v. GOOGLE, INC. 3

(collectively, “the Patents-in-Suit”), all of which relate to

digital rights management for computers and other

devices. 1 After claim construction and ruling on various

evidentiary motions, the District Court convened a jury

trial, and the jury determined that, inter alia, Google had

not infringed the Asserted Claims. Following the jury’s

verdict, the District Court entered a final judgment in

favor of Google. Both ContentGuard and Google filed

renewed motions for judgment as a matter of law

(“JMOL”) or, in the alternative, motions for a new trial,

on the grounds that the jury lacked sufficient evidentiary

support for its findings. The District Court denied the

parties’ Motions for JMOL or for a New Trial. See Con-

tentGuard Holdings, Inc. v. Google, Inc., No. 2:14-CV-61-

JRG, 2016 WL 3655603, at *1 (E.D. Tex. July 8, 2016).

ContentGuard appeals the District Court’s claim con-

struction and denial of ContentGuard’s Motion for a New

Trial. Google conditionally cross-appeals. We affirm.

DISCUSSION

In Apple, we affirmed the District Court’s construction

of the disputed term “usage rights” (“the usage right

limitation”) and entry of final judgment of noninfringe-

ment. See Nos. 2016-1916, 2016-2007, slip op. at 8, 13.

1 ContentGuard originally alleged that Google in-

fringed the Patents-in-Suit generally, J.A. 454−63; how-

ever, before trial, it narrowed its infringement arguments

to assert only claim 1 of the ’859 patent, claim 1 of the

’072 patent, claim 7 of the ’956 patent, claim 6 of the ’007

patent, and claim 1 of the ’053 patent (collectively, “the

Asserted Claims”), J.A. 1, 7879. Because the parties’

arguments apply with equal force to each of the Patents-

in-Suit, see generally Appellant’s Br; Cross-Appellants’

Br., we refer to the ’859 patent when discussing the

Patents-in-Suit.

4 CONTENTGUARD HOLDINGS, INC. v. GOOGLE, INC.

Because ContentGuard conceded that those holdings

control here, Oral Arg. at 0:54–1:16, http://oralarguments.

cafc.uscourts.gov/default.aspx?fl=2016-2430.mp3, we need

not address ContentGuard’s claim construction or in-

fringement arguments. Nor do we need to address

Google’s conditional cross-appeal. See Cross-Appellants’

Br. 47 n.4 (“If this [c]ourt affirms the judgment of nonin-

fringement, [Google is] willing to withdraw [its] cross-

appeal.”). Therefore, the sole remaining issue on appeal

is whether “[a] new trial is . . . warranted because the

District Court allowed [Google], over ContentGuard’s

objection, to mount an improper ‘practicing the prior

art’/prosecution disclaimer defense.” Appellant’s Br. 38

(footnote omitted). After articulating the relevant stand-

ards of review, we turn to ContentGuard’s argument.

I. Standards of Review

We “review[] decisions on . . . motions for a new trial[]

and evidentiary rulings under the law of the regional

circuit,” here the Fifth Circuit. SSL Servs., LLC v. Citrix

Sys., Inc., 769 F.3d 1073, 1082 (Fed. Cir. 2014) (citation

omitted). The Fifth Circuit reviews denials of motions for

a new trial for abuse of discretion, and “there is no such

abuse of discretion unless there is a complete absence of

evidence to support the verdict.” Industrias Magromer

Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293 F.3d 912,

924 (5th Cir. 2002) (internal quotation marks, alterations,

and citation omitted). The Fifth Circuit also reviews

evidentiary rulings for abuse of discretion and will affirm

the ruling unless it “had a substantial effect on the out-

come of the trial.” U.S. Bank Nat’l Ass’n v. Verizon

Commc’ns, Inc., 761 F.3d 409, 430 (5th Cir. 2014).

II. The District Court Did Not Abuse Its Discretion in

Denying ContentGuard’s Motion for a New Trial

ContentGuard argues that the District Court improp-

erly “allow[ed Google] to argue that the jury should find

non-infringement if it concludes that [a prior art refer-

CONTENTGUARD HOLDINGS, INC. v. GOOGLE, INC. 5

ence] teaches a system ‘like the Google system,’” because

“[t]his [c]ourt has repeatedly held that there is no practic-

ing the prior art defense to literal infringement.” Appel-

lant’s Br. 41 (internal quotation marks and citation

omitted). The District Court found that Google had not

presented a practicing the prior art defense but rather

“properly distinguished their system from the systems

described in the [P]atents-in-[S]uit.” ContentGuard, 2016

WL 3655603, at *5. We hold that the District Court did

not abuse its discretion.

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. Amazon.com, 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 quota-

tion 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).

As an initial matter, ContentGuard concedes that it

did not object on the grounds that Google raised an im-

proper practicing the prior art defense before the District

Court. Oral Arg. at 6:28–57, http://oralarguments.cafc.

uscourts.gov/default.aspx?fl=2016-2430.mp3. 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.

6 CONTENTGUARD HOLDINGS, INC. v. GOOGLE, INC.

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

Moreover, the District Court “properly and specifically

instructed the jury that when answering the question of

infringement, they were only to compare the accused

products to the [Asserted C]laims, and were never to

compare the accused products to the prior art.” Content-

Guard, 2016 WL 3655603, at *5; see J.A. 12603. Con-

tentGuard has not identified any evidence indicating that

the jury misunderstood this explicit instruction from the

District Court. See generally Appellant’s Br. Therefore,

the District Court did not abuse its discretion in finding

that Google had not asserted a practicing the prior art

defense. See Cordance, 658 F.3d at 1337 (explaining that

the defendant had not improperly presented a practicing

the prior art defense by discussing the prior art where the

defendant’s experts presented sufficient evidence as to

each disputed limitation).

2 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) (declin-

ing to consider undeveloped arguments).

CONTENTGUARD HOLDINGS, INC. v. GOOGLE, INC. 7

CONCLUSION

We have considered the parties’ remaining arguments

concerning infringement and find them unpersuasive. We

do not reach the patent-eligibility and invalidity issues

raised in Google’s conditional cross-appeal. Accordingly,

the Final Judgment of the U.S. District Court for the

Eastern District of Texas is

AFFIRMED

COSTS

Each party shall bear its own costs.