ORDER

ROY B. DALTON JR., District Judge.

This cause is before the Court on the following:

BACKGROUND

The complex technology at issue in this patent infringement action concerns methods and devices for down-converting electromagnetic (radio frequency) signals by "energy sampling." (See Doc. 336-13.) By using the same components previously used to down-convert modulated high frequency signals by "voltage sampling" (switches, capacitors, and resistors), energy sampling down-converts a modulated high frequency signal by altering the size of the capacitor, the duration that the switch is closed, the impedance of the resistors, and the value of the load. (See Doc. 386, pp. 273-78; Doc. 402, pp. 175-77.) Such alterations result in the energy — not the voltage — of the carrier signal being sampled, stored, and used to generate the desired lower frequency signal. (See Doc. 402, pp. 84-85.) Due to the similarity between energy sampling components and voltage sampling components (see U.S. Patent Number 6,061,551, Figs. 78A, 82A), one cannot discern if energy sampling is used in a receiver merely by viewing the layout of the components. (See Doc. 402, pp. 102-05, 113, 119, 121, 126, 152, 161-64, 176, 242; see also Doc. 403, pp. 173-74, 228, 232-33, 239-40.) Rather, the use of energy sampling can be discerned only by one skilled in the art who knows "how the switches are operated," what the input and output impedance is, and the "relative value" of the capacitor to the rest of the circuitry. (See Doc. 402, pp. 102-05; see also Doc. 403, pp. 174-82, 228, 232-37, 241-45.)

Employees of Parkervision developed energy sampling in 1996 and 1997 (Doc. 386, pp. 230-39), and Parkervision applied for its first patent related to the technology on October 1, 1998. (PX 1.)1 On May 9, 2000, the U.S. Patent and Trademark Office ("USPTO") issued Patent Number 6,061,551, for a "Method and System for Down-Converting Electromagnetic Signals" ("`551 Patent"). (Id.) Parkervision continued to submit applications for related patents, and by May 25, 2010, the USPTO had granted Parkervision at least five additional related patents.2 (See Doc. 158, ¶ 9; see also PX 2 (Patent Number 6,266,518 ("`518 Patent")); PX 3 (Patent Number 6,370,371 ("`371 Patent")); PX 4 (Patent Number 7,496,342 ("`342 Patent")).)

Before any of the patents issued, Parkervision approached Qualcomm in 1998 to license the invention. (See Doc. 336-13, p. 6.) After unsuccessful efforts to reach an agreement in 1998 and 1999, the parties went their separate ways. (Id.) More than a decade later, Parkervision initiated this action contending that, in 2006, Qualcomm began directly and indirectly infringing the claims of Parkervision's patents by using energy sampling in the integrated circuits of various receiver and transceiver products that Qualcomm sold to original equipment manufacturers ("OEM"), who incorporate the products in mobile communication devices (such as smartphones) sold and used in the United States. (See Docs. 1, 158; see also Doc. 336-13, pp. 4-9.) Qualcomm denies that it directly or indirectly infringes Parkervision's patents and contends that the patents are invalid based on anticipation. (See Doc. 248; Doc. 336-13, pp. 11-12.)

To better understand the complex nature of the technology at issue, the Court held a non-adversarial tutorial on July 24, 2012. (See Doc. 146; see also Docs. 112, 133.) At the tutorial, Parkervision presented the testimony of David Sorrells (a named inventor of the patents and Parkervision's Chief Technology Officer), and Qualcomm presented the testimony of Professor Robert Fox. (Doc. 146.) The witnesses provided the Court with a high-level overview of electronic circuit design and the use of radio frequency signals for wireless communications. (Id.) After the tutorial, the Court held a Markman hearing. (Docs. 145, 163; see also Docs. 119, 122, 136, 137, 141.) The Court issued its claim construction Order on February 20, 2013. (Doc. 243; see also Docs. 136, 137, 141.) The parties then filed motions for summary judgment regarding validity (Doc. 269, filed by Parkervision), and non-infringement (Doc. 270, filed by Qualcomm). In August 2013, the Court denied the parties' respective motions for summary judgment. (Docs. 318, 320.)

In October 2013, the parties tried the matter before a jury in two phases — the first phase concerned validity and infringement (Docs. 386-88, 391, 393-94, 402-05, 407, 410-11, 413, 438-39), and the second phase concerned damages and willfulness (Docs. 417, 427, 439-44, 446, 470-71).3 In the first phase, the jury heard live testimony from four witnesses — Mr. Sorrells (Doc. 386, pp. 193-281; Doc. 402, pp. 9-71, 74-138, 141-210, 219-55), Parkervision's President, Jeffrey Parker (Doc. 403, pp. 5-158), Parkervision's retained infringement expert, Dr. Paul Prucnal (id. at 160-86, 194-263; Doc. 404, pp. 4-256),4 and Qualcomm's retained invalidity expert, Dr. Behzad Razavi (Doc. 405, pp. 11-272). While both parties extensively cross-examined each other's witnesses, Parkervision did not present any expert testimony concerning the prior art discussed by Dr. Razavi, and Qualcomm did not present any testimony concerning infringement or the development and operation of its accused products.5

At the conclusion of the first phase of the trial, the jury deliberated for more than ten hours over three days before returning its verdict rejecting Qualcomm's invalidity claims and finding that Qualcomm directly and indirectly infringed: (1) claims 23, 25, 161, 193, and 202 of the '551 Patent; (2) claims 27, 82, 90, and 91 of the '518 Patent; (3) claim 2 of the '371 Patent; and (4) claim 18 of the '342 Patent. (See Doc. 416; see also Docs. 407, 410, 413.) Specifically, the jury indicated by checkmarks on the verdict form that the following products infringe Parkervision's asserted patent claims: Astra, Bahama, Eagleray, GZIF3, GZIF4, Halley, Hercules, Iceman, Iris, Libra/Gemini, Magellan, Marimba,6 Merlin, Napoleon, Odyssey, Ramsis, Solo, Volans, Voltron, and Ywing.7 (Doc. 416, p. 2.)

Qualcomm timely moved for judgment as a matter of law ("JMOL") concerning invalidity and non-infringement. (Docs. 393, 398, 399, 407, 499, 501, 514.) As to non-infringement, Qualcomm argued that the Court should enter JMOL in its favor because, among other things, the testimony of Dr. Prucnal established that the "generating" and "sampling" limitations are not met in the accused products. (Doc. 514, pp. 12-24.) As to invalidity, Qualcomm contends that JMOL is warranted because three prior art references and the testimony of Dr. Razavi provided unrebutted proof of anticipation, and Parkervision presented no contrary evidence and obtained no relevant admissions from Dr. Razavi on cross-examination. (Doc. 499, pp. 5, 13-16.) Qualcomm further argues that Parkervision's validity opposition at trial depended on a rejected construction of the "generating" limitations. (Id. at 5, 12-14.)

The Court established a post-trial briefing schedule (Docs. 486, 487), and Parkervision filed its responses in accordance with the schedule. (Docs. 516, 518.) After the motions were fully briefed, the Court held a hearing on May 1, 2014, where the parties provided thorough argument concerning their respective positions on Qualcomm's JMOL motions. (Docs. 536, 537.) As explained below, the Court finds that Qualcomm's non-infringement motion is due to be granted (or, alternatively, that Qualcomm is entitled to a new trial), and Qualcomm's invalidity motion is due to be denied.

ASSERTED PATENT CLAIMS

Because the infringement and validity analyses hinge on the language of the patent claims,8 the text of the asserted claims are set forth in full with brief summaries of the pertinent claim constructions.

I. '551 Patent — Method & System for Down-Converting Electromagnetic Signals

The jury found that all of the accused products infringe claims 23, 25, 161, 193, and 202 of the '551 Patent. Claim 23 is an independent apparatus claim, and claims 25, 161, 193, and 202 are also apparatus claims that are each dependent on claim 23. These claims include the generating and sampling limitations that are at issue in the post-trial briefing.9 Claim 23 covers:

Claim 25 covers the apparatus of claim 23, "wherein said circuit comprises: an output impedance match circuit coupled to an output of said apparatus."

Claim 161 covers the apparatus of claim 23, "wherein said storage device comprises a capacitive storage device sized to store substantial amounts of energy relative to energy contained in a percentage of half cycles of a carrier signal, whereby said capacitive storage device integrates the transferred energy."

Claim 193 covers the apparatus of claim 23, "wherein the aliasing rate is substantially equal to a frequency of the carrier signal divided by n, and the lower frequency signal is a demodulate [sic] baseband signal."

Claim 202 covers the apparatus of claim 23:

II. '518 Patent — Method & System for Down-Converting Electromagnetic Signals by Sampling and Integrating Over Apertures

The jury found that all of the accused products infringe claims 27, 82, 90, and 91 of the '518 Patent. These claims also include the sampling and the generating limitations.

A. Claim 27

Claim 27 of the '518 Patent is a method claim dependent on claim 1, which reads:

Claim 27 covers the method of claim 1, "further comprising the step of transferring energy to a load during an off-time."

B. Claim 82

Claim 82 is an apparatus claim with means-plus-function limitations, which reads:

C. Claims 90 & 91

Claims 90 and 91 also are apparatus claims with means-plus-function limitations. Claim 90 is an independent claim, which reads:

Claim 91 is dependent on claim 90, and further covers: "The apparatus of claim 90, wherein said aperture periods are substantially greater than zero such that energy transferred is to such an extent that accurate voltage reproduction of the first signal is prevented."

III. The '371 Patent — Application of Universal Frequency Translation

The jury found that all of the accused products infringe claim 2 of the '371 Patent, which is an apparatus claim covering:

IV. '342 Patent — Down-Converting Electromagnetic Signals, Including Controlled Discharge of Capacitors

The jury found that all of the accused products infringe claim 18 of the '342 Patent. This claim does not have the sampling limitation, but it does have the generating limitation that is at issue in Qualcomm's non-infringement motion. Claim 18 covers:

V. Claim Constructions

A. Agreed Constructions

The Court addressed forty-four terms in its Markman Order (see Doc. 243),10 and the parties agreed to the meaning of ten claim terms. (Doc. 141, pp. 12-13.) For instance, the parties agreed that a "baseband signal" (used in claim 193 of the '551 Patent) is "any generic information signal desired for transmission and/or reception" (id. at 12), and a "carrier signal" (used in all asserted claims of the '551 and '371 Patents and claims 27 and 82 of the '518 Patent) is "an electromagnetic wave that is capable of carrying information via modulation" (id.). The parties further agreed that an "aliasing rate" (used in all asserted claims of the '551 and '371 Patents and claims 27 and 82 of the '518 Patent) is a "sampling rate that is less than or equal to twice the frequency of the carrier signal" (id.) and that "aperture periods" (used in claim 202 of the '551 Patent and all asserted claims of the '518 Patent) means "the durations of time over which energy is transferred from the carrier signal." (Id.) Finally, the parties agreed that "electrically coupling" (used in claim 18 of the '342 Patent) means "indirectly or directly connecting such that an electric signal can flow between the coupled points." (Id.)

B. Disputed Constructions

The parties disputed the construction of "lower frequency signal," terms related to "generating" signals, and "transferring" and "sampling" energy. (Doc. 141, pp. 2-4, 7-8.) The Court construed "lower frequency signal" (used in claim 2 of the '371 Patent and all asserted claims of the '551 Patent) as "a signal with frequency below the carrier signal frequency." (Doc. 243, p. 16.) Terms related to energy transfer (used in claims 23, 161, 193, and 202 of the '551 Patent, and claims 27, 90, and 91 of the '518 Patent) were construed to require the transfer of energy (i.e., voltage and current over time) "in amounts that are distinguishable from noise." (Id. at 13.) The construction of "sampling" and "generating" were disputed in the parties' Markman briefings and in dispositive motion briefings.

1. Sampling

The Court adopted Qualcomm's proposed construction of the term "sampling" as "reducing a continuous-time signal to a discrete time signal" (Doc. 137, pp. 4-6), and the Court construed "sub-sampling" as a synonym of "under-sample," which means "sampling at an aliasing rate." (Doc. 243, pp. 3-10.) "Sampling" was also discussed in the Court's Order denying Qualcomm's motion for summary judgment of non-infringement of its 50% duty cycle products (Astra, Bahama, Eagleray, GZIF4, Hercules, Iris, Libra/Gemini, Merlin, Ramsis, Volans, Voltron, and Ywing). (Doc. 320, pp. 6-8.) Qualcomm argued that the 50% duty cycle products do not sample because — as Dr. Prucnal conceded — a 50% duty cycle product always charges. (Id. at 6-7.) Absent discharge, there is no reduction to a discrete time signal, and there is no sampling. (Id.) In response, Parkervision did not dispute that reducing a continuous time signal to a discrete time signal requires discharge; nonetheless, it argued that the Court should deny summary judgment based on testimony from Dr. Prucnal that the absence of discharge would occur only in an "ideal" 50% duty cycle product, and Qualcomm's products are not necessarily ideal. (Id. at 7-8 (citing Doc. 277, pp. 12-14).) Rather, the 50% duty cycle products have a discharge opportunity: "[I]t's going to depend upon the impedance scene looking forward in this circuit where charging the capacitor and then energy is being transferred into it from one or the other of these two ... ILNA+ or ILNA- but then that has the opportunity to discharge as well." (Id. at 7-8 (quoting Dr. Prucnal's deposition testimony) (emphasis added).) The Court denied Qualcomm's motion for summary judgment because Parkervision "has put forth sufficient evidence to raise a genuine dispute of material fact regarding the infringement of Qualcomm's 50% [d]uty [c]ycle [p]roducts." (Id. at 8.)

2. Generating

In its Markman briefing, Qualcomm argued that the term "generating" was indefinite11 but that if any construction was possible, it should mean "creating a lower frequency signal from the previously transferred energy." (Doc. 137, pp. 4-5; see also Doc. 243, pp. 38-39.) Parkervision countered that "generating" need not be construed because it has a plain and ordinary meaning. (Doc. 136, pp. 22-23.) Consistent with Parkervision's arguments, the Court rejected Qualcomm's proposed construction, finding that "no construction of these terms is necessary in view of the terms' use of plain and direct language."12 (Doc. 243, pp. 38-40.) The Court again addressed the generating limitation in its Order denying Parkervision's motion for summary judgment that certain prior art did not anticipate its claims. (See Doc. 318, pp. 3-6.) There, the Court rejected Parkervision's argument that generating the lower frequency signal requires discharge of the transferred energy from a storage device. (See id. at 5-6 (noting that "a signal could be `generated' from a charge held in a capacitor ... indirectly, by measuring the voltage across the capacitor").)

STANDARDS

Federal Rule of Civil Procedure 50 provides in relevant part:

The U.S. Court of Appeals for the Federal Circuit reviews the grant or denial of a Rule 50 motion under the law of the regional circuit. i4i Ltd. P'Ship v. Microsoft Corp., 598 F.3d 831, 841 (Fed.Cir. 2010). In the U.S. Court of Appeals for the Eleventh Circuit, a district court "should grant judgment as a matter of law when the plaintiff presents no legally sufficient evidentiary basis for a reasonable jury to find for him on a material element of his cause of action." Collins v. Marriott Int'l, Inc., 749 F.3d 951, 957 (11th Cir. 2014) (citing Pickett v. Tyson Fresh Meats, Inc., 420 F.3d 1272, 1278 (11th Cir.2005)); see also Chow v. Chak Yam Chau, 555 Fed.Appx. 842, 845-46 (11th Cir.2014). The district court must deny a renewed Rule 50 motion where "there exists a `substantial conflict in the evidence, such that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions.'" Davila v. Menendez, 717 F.3d 1179, 1184 (11th Cir.2013) (quoting Christopher v. Florida, 449 F.3d 1360, 1364 (11th Cir.2006)); see also Mee Indus. v. Dow Chem. Co., 608 F.3d 1202, 1211 (11th Cir.2010) (holding that JMOL should be granted if the non-movant does not "provide more than a scintilla of evidence that there is a substantial conflict in evidence to support a jury question").

After the jury's verdict, a renewed Rule 50 motion is decided "the same way it would have been decided prior to the jury's verdict, and ... the jury's particular findings are not germane to the legal analysis." Chow, 555 Fed.Appx. at 846 (citing Chaney v. City of Orlando, Fla., 483 F.3d 1221, 1228 (11th Cir.2007)). "The district court must view the evidence in the light most favorable to the non-moving party and must refrain from `decid[ing] the credibility of witnesses ... or weigh[ing] the evidence.'" Davila, 717 F.3d at 1184 (quoting Mich. Millers Mut. Ins. Corp. v. Benfield, 140 F.3d 915, 921 (11th Cir.1998)). The court may give "`credence to ... that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that [it] comes from disinterested witnesses,' however, [the court must] `disregard all evidence favorable to the moving party that the jury is not required to believe.'" Mee Indus., 608 F.3d at 1211 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).

Federal Rule of Civil Procedure 59 provides that the district court may, "on motion, grant a new trial on all or some of the issues — and to any party — ... for any reason for which a new trial has heretofore been granted in federal court." Fed. R.Civ.P. 59(a)(1)(A). The Federal Circuit reviews such motions under regional circuit law. Commil USA, LLC v. Cisco Sys., Inc., 720 F.3d 1361, 1371 (Fed.Cir. 2013). Under Eleventh Circuit law, new trials should not be granted unless "the verdict is against the great — not merely the greater — weight of the evidence."13 Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1312-13 (11th Cir. 2013). The court "may consider the credibility of witnesses and weigh evidence." Moxness Prods., Inc. v. Xomed, Inc., 891 F.2d 890, 893 (Fed.Cir.1989); see also Williams v. City of Valdosta, 689 F.2d 964, 973 (11th Cir.1982) ("[T]he trial court is to view not only that evidence favoring the jury verdict but evidence in favor of the moving party as well.").

INFRINGEMENT

I. Legal Standards

Pursuant to 35 U.S.C. § 271, "whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent." 35 U.S.C. § 271(a). "Whoever actively induces infringement of a patent [also] shall be liable as an infringer." Id. § 271(b). "A finding of inducement requires both an underlying instance of direct infringement and a requisite showing of intent."14 Fuji Photo Film Co. v. Jazz Photo Corp., 394 F.3d 1368, 1377 (Fed.Cir.2005); see also Limelight Networks, Inc. v. Akamai Techs., Inc., ___ U.S. ___, 134 S.Ct. 2111, 2117, 189 L.Ed.2d 52 (2014).

Direct infringement exists "when the properly construed claim reads on the accused device exactly." Cole v. Kimberly-Clark Corp., 102 F.3d 524, 532 (Fed.Cir.1996). The two-step process of direct infringement analysis requires: first, an interpretation of the claims in dispute; and second, a comparison of the properly construed claims with the accused product. See Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en banc). If a single limitation is missing or is not met as claimed, there is no literal infringement. See London v. Carson Pirie Scott & Co., 946 F.2d 1534, 1538-39 (Fed. Cir.1991).

Interpretation of patent claims is a question of law, but determining whether the accused device satisfies every claim limitation is a question of fact. See Cook Biotech Inc. v. Acell, Inc., 460 F.3d 1365, 1372-73 (Fed.Cir.2006). The patentee bears the burden of establishing a prima facie showing of infringement as to each accused device by a preponderance of the evidence. See Medtronic, Inc. v. Mirowski Family Ventures, LLC, ___ U.S. ___, 134 S.Ct. 843, 849-50, 187 L.Ed.2d 703 (2014) ("It is well established that the burden of proving infringement generally rests upon the patentee."); see also Imhaeuser v. Buerk, 101 U.S. 647, 662, 25 L.Ed. 945 (1879) ("[T]he burden to prove infringement never shifts [to the alleged infringer] if the charge is denied in the plea or answer.").

II. Discussion

Qualcomm argues that the Court should enter JMOL in its favor because: (1) "Parkervision failed to present evidence that Magellan is representative" of the remaining accused products (Doc. 514, pp. 25-27); (2) Parkervision failed to present necessary testing to the jury, and the testimony of Dr. Prucnal established that the "generating" and "sampling" limitations are not met in the accused products (id. at 12-24; Doc. 537, pp. 50-67); (3) Dr. Prucnal's testimony concerning other limitations was impermissibly conclusory (Doc. 514, pp. 12-24); and (4) Qualcomm's "substantial defenses to infringement" require JMOL in its favor on Parkervision's inducement claims (id. at 27-28).

Parkervision counters that Qualcomm's arguments fail because they are "entirely divorced from the claim language and the claim constructions" (Doc. 537, p. 93) and because "legally sufficient evidence supports the jury's verdict." (Doc. 518, p. 5.) Specifically, Parkervision points to the expert testimony of Dr. Prucnal and Mr. Sorrells and "Qualcomm's own circuit schematics and technical documents" as sufficient evidence to support the jury's verdict. (See id.) Finally, at the May 1 hearing, Parkervision sought to defuse its expert's fatal admissions by "planting the seed" that "multiple signals" meet the lower frequency construction. (See Doc. 537, pp. 93-94; see also id. at 89-92.)

A. Representative Products

At trial, nineteen product architectures were accused of incorporating the energy sampling apparatus and methods, and the jury found that all of these products infringed every asserted claim, and it further found that a product called Marimba (which was erroneously included on the verdict form) also infringed. (Doc. 416.) Parkervision presented no evidence concerning Marimba (supra note 4), and only very limited expert witness testimony concerning Astra, Bahama, Eagleray, GZIF3, GZIF4, Halley, Hercules, Iceman, Iris, Libra/Gemini, Merlin, Napoleon, Odyssey, Ramsis, Volans, Voltron, and Ywing. With respect to these seventeen products (and Solo, which Mr. Sorrells discussed), Dr. Prucnal offered the following testimony:

(Doc. 403, p. 212.) Dr. Prucnal further stated that his testimony was specific to the Magellan product, but he had "concluded that the design documents and circuits show that the circuits are substantially the same as they relate to the patents. And they also infringe." (Doc. 404, pp. 64-65 (emphasis added).)

Parkervision contends that Dr. Prucnal's conclusory testimony concerning non-Magellan products is sufficient to sustain the jury's verdict because Dr. Prucnal's testimony is unrebutted and consistent with Qualcomm's own consolidated treatment of the products. (Doc. 518, pp. 6-9.) Qualcomm argues that it is entitled to JMOL because such testimony is not "substantial evidence that the Magellan design is a representative product" for the remaining products.15 (Doc. 514, pp. 21-23.) Reserving for now the issue of whether the record evidence concerning the Magellan and Solo architecture products was sufficient to establish infringement, the Court first will consider only whether Parkervision's decision to prove its case with representative products is sufficient grounds for granting JMOL as to the non-Magellan products.

The Federal Circuit has rejected arguments similar to Qualcomm's and permitted a patentee to present evidence concerning one product and "then stat[e] that the same analysis applies to other allegedly infringing devices that operate similarly, without discussing each type of device in detail." TiVo, Inc. v. EchoStar Commc'ns Corp., 516 F.3d 1290, 1308 (Fed.Cir.2008); see also Spansion, Inc. v. Int'l Trade Comm'n, 629 F.3d 1331, 1350-51 (Fed.Cir. 2010) (finding that the patentee's selection of fifty-two representative cases was not "improper burden shifting," but rather that the defendant "simply failed to rebut the substantial evidence set forth" by the patentee).16

The Federal Circuit has also explicitly approved proof of patent infringement through the conclusory opinions of a patentee's expert. Symbol Techs., Inc. v. Opticon, Inc., 935 F.2d 1569, 1574-75 (Fed. Cir.1991). In Symbol, the Federal Circuit rejected the defendant's argument that the trial court erred by finding infringement in a non-jury case based on expert testimony "on the ultimate issue of infringement without discussing in detail equivalency between the structures of the accused devices and the structures disclosed in the patent specifications." Id. at 1575. The Symbol court noted that "testimony on the ultimate issue of infringement is permissible in patent cases." Id. Indeed, patent cases may be "particularly served" by such method of proof:

Id. at 1576 (citations omitted). Notably, a patentee who rests its case "on summary testimony" is left exposed to a "profound risk" that the defendant "during its defense or cross-examination" will demonstrate non-infringement. See id. at 1575-76 (observing that the defendant has "the responsibility for challenging the factual underpinnings" of ultimate issue testimony).

Here, Parkervision's representative product litigation strategy appears to be proper under TiVo, Spansion, and Symbol.17 Dr. Prucnal testified that he analyzed the "schematics and the design documents" for each of the accused devices and formed opinions that "they are substantially the same [to Magellan] as they relate to the patents." (Doc. 404, pp. 64-65.) Qualcomm did not explicitly cross-examine Dr. Prucnal on his "substantially the same" testimony,18 and it used only Solo and Magellan documents in its cross-examination of Dr. Prucnal — at least suggesting that the products could be treated en masse for the purpose of determining infringement. Based on this record and the law, the Court rejects Qualcomm's argument that JMOL is warranted because Parkervision "failed to present substantial evidence that the Magellan design is a representative product." (Doc. 514, pp. 24-27.)

B. Direct Infringement

Qualcomm also argues that JMOL should be entered in its favor because the record is void of the testing and analysis that is required to prove infringement of the complex technology at issue, and "the uncontradicted evidence" establishes that the "generating" and "sampling" limitations are not present in the accused products. (Doc. 514, pp. 12-24.) Parkervision counters that Qualcomm's motion should be denied because the jury was free to disbelieve Dr. Prucnal's harmful concessions and instead credit Dr. Prucnal's testimony on direct and redirect examinations that the generating and sampling limitations are met in the accused products.19 (Doc. 518, pp. 10-12, 16-17.) The question for the Court is whether, viewed in the light most favorable to Parkervision, the evidence is such that "a reasonable jury could not arrive" at a verdict of infringement. See Chow, 555 Fed.Appx. at 846.

Assessment of the parties' respective arguments requires a careful review of the trial testimony in light of the complex technology at issue. Through largely leading questions on direct examination, Dr. Prucnal initially testified that claim 82 of the '518 Patent is literally infringed based on his review of various schematics for the Magellan architecture products. (See Doc. 403, pp. 245-63.) According to Dr. Prucnal, the schematics show that after initial amplification, the carrier signals (I and Q) are sampled at an aliasing rate (twice per carrier cycle) by local oscillators ("LO"), which cause the switches in the Magellan mixers to close (permitting energy to flow) and open (stopping energy flow). (Id. at 245-52.) Dr. Prucnal then pointed to capacitors after the mixers that collect the sampled energy (see id. at 253-55 (noting capacitors on pages 1999 and 2001 of PX 847)), and then he agreed that he had "already shown" that "the accused products have the means for generating the baseband signal." (Id. at 258-59; see also id. at 260-61 (noting the transimpedance amplifiers ("TIA") after the capacitors have a low impedance that "provides a path for the discharge of the capacitor").) Dr. Prucnal concluded that the "energy storage devices" that follow the mixers are inside the box "labeled TX filter." (Id. at 262; see also Doc. 404, pp. 26-27 (looking to the TX filter output).) Thus, Dr. Prucnal concluded, claim 82 of the '518 Patent is literally infringed by the Magellan architecture products. (See Doc. 403, pp. 262-63.)

Without reference to any testing of any of the accused products,20 Dr. Prucnal testified that the sampling and generating limitations in the remaining patent claims are also met by the 25% duty cycle products. (Doc. 404, pp. 8-9 (agreeing that the similarities between the claims permit a superficial analysis); see also id. at 16, 23-25, 27, 28-29 (stating that all of the elements of claim 23 of the '551 Patent are found in claim 82 of the '518 Patent); id. at 30-35 (stating that claims 25 and 161 of the '551 Patent are proved by comparing them to claim 90 of the '518 Patent); id. at 36-38 (stating that 193 of the '551 Patent infringes for the same reasons as claim 82 of the '518 Patent).) With respect to the accused 50% duty cycle products, Dr. Prucnal's testimony was even more conclusory:

(Doc. 404, pp. 65-66.)21

In his testimony on redirect examination, Dr. Prucnal again pointed to the charging and discharging of the capacitors as evidence of direct infringement:

(Doc. 404, pp. 246-47.) Dr. Prucnal further testified concerning the crucial discharging of the capacitors in the TX filter:

(Id. at 247 (testifying "[i]f there were not a switch inside the [mixer of the] accused products, there would be no infringement").)22

Dr. Prucnal's direct and redirect testimony was notably vague when it came to the generating limitation. Indeed, even on redirect, Dr. Prucnal discussed the charging and discharging cycles as necessary to energy transfer — not to generating a baseband signal. (Id.) In contrast, Dr. Prucnal's testimony on cross-examination was unequivocal that the double balanced mixers create the baseband before the lower frequency signal reaches the capacitors in the TX filter:

(Id. at 177; see id. at 199-200.) Dr. Prucnal further testified that the "output" of the double balanced mixers in the accused products "is the baseband."23 (Id. at 186-87, 240-41).

At the May 1 hearing, the Court asked Parkervision to explain why "Dr. Prucnal's concession that the [base]band was created prior to the storage capacitor is not the end of the case." (Doc. 537, pp. 92-93.) In response, counsel for Parkervision contended that Qualcomm's arguments were somehow "divorced from the claim language and claim constructions," and Parkervision "planted the seed" that more than one "baseband signal [or] lower frequency signal" might be created in the Qualcomm products. (Id. at 93-94.) Parkervision contended that even if the signal after the mixer is a baseband signal, that does not mean that the "signal here after the capacitors cannot be a baseband signal." (See id. at 98.) During the May 1 hearing, the Court expressed skepticism of this new infringement theory (id. at 99-105) and remains skeptical today.

Upon careful review of the record, the Court agrees with Qualcomm that Dr. Prucnal's concessions during cross-examination as well as his direct testimony are fatal to Parkervision's infringement case,24 which points to the TX filter as the location of the capacitors that "generate" the baseband by charging and discharging.25 (Doc. 404, pp. 178-80 (agreeing with Mr. Neal that there is "no infringement" if the capacitors in the TX filter "are used for TX filtering and not for energy sampling").) Indeed, where similarly complex technology has been at issue, testimony like that offered by Dr. Prucnal has been held insufficient to sustain an infringement verdict. See Becton, Dickinson & Co. v. Tyco Healthcare Grp., LP, 616 F.3d 1249, 1257-58 (Fed.Cir.2010); Johns Hopkins Univ. v. Datascope Corp., 543 F.3d 1342, 1348-49 (Fed.Cir.2008); see also Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059, 1065 (Fed.Cir.1998).

In Datascope, the Federal Circuit reversed the district court's denial of a non-infringement JMOL where the patentee's expert testimony was "contradictory" and "totally incredible" as a matter of geometry. See Datascope, 543 F.3d at 1348-49; see also Nobelpharma AB, 141 F.3d at 1065.26 Like the testimony in Datascope, Dr. Prucnal's testimony was contradictory on some points; however, it was consistent on the crucial issue that the baseband signal is created in the Qualcomm products before the storage capacitors which precludes a finding of infringement. Accordingly, Datascope supports the entry of JMOL in this action. Similarly, in Becton, the Federal Circuit held that the district court erred in entering judgment of infringement for the patentee after a jury trial where the patentee provided no "test data or even a single live demonstration" to establish its infringement theory. Becton, 616 F.3d at 1257-58 (noting the district court's error in refusing to enter JMOL of non-infringement based on speculation that the hinges "might contain some stored energy").

Finally, the Court rejects Parkervision's argument that the jury's verdict may be saved by Mr. Sorrells' testimony that Parkervision's QSC6270 receiver chip (the Solo product) satisfied each of the limitations of claim 23 of the '551 Patent.27 (Doc. 402, pp. 70-71, 74-89.) There is no dispute that Mr. Sorrells' opinions — like those of Dr. Prucnal — were not based on appropriate testing or simulations. Rather, Mr. Sorrells' opinions were based on a three-page technical paper published by Qualcomm (which Mr. Sorrells' initially considered for "two or three weeks")28 and a reverse engineering report which provided the equivalent of schematics for a Solo chip. (See id. at 62; id. at 64, 68-71, 75-89; see also PX 842.) The depiction of the Solo chip provided by the reverse engineering report permitted only the most conclusory testimony from Mr. Sorrells concerning how the limitations of claim 23 were met. (See Doc. 402, pp. 88-89 (asserting that certain "circuitry" depicted in the reverse engineering report "allows" Qualcomm "to generate the lower frequency signal from the transferred energy").)

On cross-examination and during redirect, Mr. Sorrells testified that infringement could not be determined absent detailed information concerning how a particular circuit functions — not just its components. (See Doc. 402, pp. 102-03, 105, 113, 120-21, 148-49, 152, 163, 175-76; see also id. at 241-42.) Dr. Prucnal further testified that infringement could not be determined absent review of materials that were unavailable to Mr. Sorrells. (See Doc. 404, pp. 7-8 (stating that only the schematics and design documents unavailable to Mr. Sorrells provided the "necessary detail" for an infringement determination); id. at 73.) Such testimony buttresses the Court's conclusion as to the inadequacy of Mr. Sorrells' testimony. See Datascope, 543 F.3d at 1348-49; see also Nobelpharma AB, 141 F.3d at 1065.

Given the technology at issue, the Court finds that Mr. Sorrells' superficial analysis is an insufficient evidentiary basis for the jury's infringement verdict in this action. See Becton, 616 F.3d at 1257-58. Further, denial of Qualcomm's motion concerning non-infringement would have to be based on speculation from Mr. Sorrells and disregard of Dr. Prucnal's plain testimony concerning the output of the mixers.29 While the Court is loath to overturn the jury's verdict,30 on this record, it is the Court's only choice. Accordingly, the Court finds that Qualcomm's motion (Docs. 501, 514) is due to be granted. In the alternative, the Court finds that a new trial on infringement is required.

VALIDITY

I. Standards

35 U.S.C. § 102 provides that "[a] person shall be entitled to a patent unless ... the invention was ... described in a printed publication ... or otherwise available to the public before the effective filing date of the claimed invention." 35 U.S.C. § 102(a)(1); see Am. Calcar, Inc. v. Am. Honda Motor Co., 651 F.3d 1318, 1341 (Fed.Cir.2011). To anticipate a claim under § 102, "a single prior art reference must expressly or inherently disclose each claim limitation." See Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1334 (Fed.Cir.2008); see also Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1318 (Fed.Cir.2009) (reversing denial of motion for JMOL that patent was anticipated). "[A] limitation or the entire invention is inherent and in the public domain if it is the `natural result flowing from' the explicit disclosure." Schering Corp. v. Geneva Pharms., 339 F.3d 1373, 1379 (Fed. Cir.2003) (citation omitted).

Anticipation is a question of fact. SynQor, Inc., 709 F.3d at 1373. It requires "a comparison of the construed claim to the prior art." In re Omeprazole Patent Litig., 483 F.3d 1364, 1371 (Fed. Cir.2007). When the technology at issue is complex, expert testimony may be required, Alexsam, Inc. v. IDT Corp., 715, F.3d 1336, 1347 (Fed.Cir.2013), and it must not be too general and conclusory: "Typically, testimony concerning anticipation must be testimony from one skilled in the art and must identify each claim element, state the witnesses' interpretation of the claim element, and explain in detail how each claim element is disclosed in the prior art reference." Koito Mfg. Co. v. Turn-Key-Tech, LLC, 381 F.3d 1142, 1152 (Fed. Cir.2004) (citation omitted).

To establish its anticipation defense, Qualcomm must overcome the presumption of validity found in the first paragraph of 35 U.S.C. § 282, "which provides that `[a] patent shall be presumed valid' and `[t]he burden of establishing invalidity ... rest[s] on the party asserting such invalidity.'" Microsoft Corp. v. i4i Ltd. P'ship, ___ U.S. ___, 131 S.Ct. 2238, 2243, 180 L.Ed.2d 131 (2011) (quoting § 282). Clear and convincing evidence must be produced to overcome this presumption. See id. This burden of proof is pertinent to the Court's consideration of Qualcomm's motion for JMOL. See Mentor H/S, Inc. v. Med. Device Alliance, Inc., 244 F.3d 1365, 1375 (Fed.Cir.2001) ("Courts grant JMOL for the party bearing the burden of proof only in extreme cases, when the party bearing the burden of proof has established its case by evidence that the jury would not be at liberty to disbelieve and the only reasonable conclusion is in its favor.").

II. Discussion

A. JMOL

Qualcomm's invalidity defense is that the asserted claims are anticipated by three references that were not considered by the PTO:

Reference                                        Claims Allegedly Invalidated

Peter A. Weisskopf, Subharmonic Sampling         Claims 23, 25, 161, 193, and 202 of the '551
of Microwave Signal Processing Requirements,     Patent
Microwave Journal (May 1992) (DX
534) ("Weisskopf")                                Claims 27, 82, 90, and 91 of the '518 Patent

                                                 Claim 2 of the '371 Patent

P. Estabrook and B.B. Lusignam, A Mixer          Claims 23, 161, and 202 of the '551 Patent
Computer-Aided Design Tool Based in the
Time Domain, IEEE MTT-S Digest (1988)            Claims 27, 82, 90, and 91 of the '518 Patent
(DX369) ("Estabrook")
                                                 Claim 2 of the '371 Patent

Doug DeMaw, Practical RF Design Manual,          Claim 18 of the '342 Patent
118-213 (1982) ("DeMaw")

According to Qualcomm, JMOL is warranted because the above references and the testimony of Dr. Razavi provided unrebutted proof of anticipation, and Parkervision presented no contrary evidence and obtained no relevant admissions from Dr. Razavi on cross-examination. (Doc. 499, p. 5.) Qualcomm argues in the alternative that a new trial is warranted because the jury was not instructed on the disparagement doctrine or given an i4i instruction as Qualcomm requested, and Parkervision's arguments concerning the generating limitation contradicted the Court's claim construction. (Doc. 499, pp. 28-29.)

Parkervision counters that JMOL is inappropriate because "the jury could have reasonably concluded that Dr. Razavi's testimony was not credible" because he: (1) "was repeatedly impeached," (2) "omitted claim limitations and constructions," (3) "admitted to errors in his simulations," and (4) "advanced an understanding of the claim terms incongruent with that offered by Qualcomm for infringement purposes." (Doc. 516, pp. 5-6.) Parkervision argues that "Dr. Razavi's testimony failed to show that: (1) the `energy transfer' limitations as construed by the Court were disclosed by ... Weisskopf or Estabrook"; and (2) the "sampling" limitation was disclosed by... DeMaw. (Id. at 5.) Parkervision further argues that the Court should reject Qualcomm's jury instruction arguments because Qualcomm has not shown the instructions were "legally erroneous" or had a prejudicial effect on the jury. (Id. at 14-17.) Finally, Parkervision contends that it did not disregard or contradict the Court's construction of the "generating" limitation. (Id. at 21.)

Qualcomm's most compelling argument is that JMOL or a new trial is required because Parkervision's validity opposition (with respect to Weisskopf) is premised on an incorrect claim construction. (Doc. 499, pp. 9, 11-14 (arguing that Parkervision's decisions "to disobey" the Court's claim construction position, "misrepresent the Weisskopf reference, and distract the jury with ... theatrics left Parkervision with a record that requires JMOL of invalidity and, at a minimum, a new trial").) Specifically, Qualcomm contends that Parkervision's validity opposition at trial depended on a finding that the "generating" limitations required a "discharge" of energy. (Id. at 1-12.) Qualcomm cites four Federal Circuit cases in support of this argument: (1) Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1319 (Fed.Cir. 2009); (2) Ecolab, Inc. v. FMC Corp., 569 F.3d 1335, 1347 (Fed.Cir.2009);31 (3) Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628, 632 (Fed.Cir.1987); and (4) Am. Calcar, Inc. v. Am. Honda Motor Co., 651 F.3d 1318, 1341-42 (Fed.Cir.2011).32

In Verdegaal Bros., Exergen Corp., and Ecolab, the Federal Circuit held that the district courts erred in denying motions for JMOL on invalidity. The patentees in Verdegaal Bros., and Exergen Corp. conceded that only one limitation was absent from the prior art references. Verdegaal Bros., 814 F.2d at 632; Exergen Corp., 575 F.3d at 1318-19. In both cases, the Federal Circuit rejected the patentees' arguments that the sole limitation was absent from the prior art because the claims did not include the limitations as advanced by the patentees. Verdegaal Bros., 814 F.2d at 632 (holding that the patentee's distinction was "inappropriate" because there was "no limitation in the subject claims with respect to the rate at which sulfuric acid is added"); Exergen Corp., 575 F.3d at 1319 ("[N]othing in claim 1 of the '205 patent requires the detector to detect radiation solely from the biological tissue.").

Unlike the plaintiffs in Verdegaal Bros. and Exergen, Parkervision has not conceded that the "generating" limitations are the only ones at issue as to Weisskopf.33 Further, Parkervision does not dispute that it represented at trial that generating a lower frequency or baseband signal requires discharge of energy. (Doc. 516, p. 12 (noting that "Dr. Prucnal and Mr. Sorrells opined that the plain and ordinary meaning of the `generating' limitations required the repeated charging and discharging of a capacitor").) Nonetheless, Parkervision argues that the Court should reject Qualcomm's arguments as waived because Qualcomm did not object: (1) to the testimony of Dr. Prucnal or Mr. Sorrells; (2) during Parkervision's cross-examination of Dr. Razavi that "generating" requires discharge;34 and (3) to the Court's instruction to the jury to apply the "plain meaning" of the term "generating." (Id. at 23-24.) Further, Parkervision contends that its attorney's argument that Weisskopf and Estabrook do not anticipate was not conduct that impaired "`the calm and dispassionate consideration of the case by the jury.'" (Id. at 23 (quoting BankAtlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467, 1474 (11th Cir.1992)).)

Parkervision also argues that the jury could reject Dr. Razavi's testimony that Weisskopf anticipates the "generating" limitations because Dr. Razavi provided contradictory testimony at his deposition and at trial concerning whether "the energy in the capacitor shown in figure 2 ... is not discharged to create the lower frequency signal." (Id. at 11.) Parkervision also argues that the jury could find that the "energy transfer" limitations were not satisfied because Dr. Razavi failed to testify that the Weisskopf and Estabrook references disclose transferring amounts of energy from the carrier signal "in amounts distinguishable from noise" as required under the claim construction. (Id. at 7-8.)

The technology in this action and the prior art are of such complexity that Qualcomm cannot establish that it is entitled to JMOL on anticipation absent expert testimony from Dr. Razavi that the jury was "not at liberty to disbelieve." See Mentor H/S, Inc., 244 F.3d at 1375; Alexsam, 715 F.3d at 1347; Koito Mfg., Co., 381 F.3d at 1149. Parkervision's arguments that the jury had sufficient basis to disbelieve Dr. Razavi's testimony are persuasive. (Doc. 516.) Accordingly, despite compelling arguments by Qualcomm concerning the "generating" limitations, it would be error to disturb the jury's verdict that Qualcomm did not prove by clear and convincing evidence that all of the asserted claims were anticipated by Weisskopf, Estabrook, and DeMaw.

B. New Trial

Qualcomm contends that it is entitled to a new trial for all the same reasons that JMOL is warranted and because the Court erred in not giving an i4i instruction or an instruction that "[a] reference is no less anticipatory if, after disclosing the invention, the reference then disparages it." Celeritas Techs., Ltd. v. Rockwell Int'l Corp., 150 F.3d 1354, 1361 (Fed.Cir.1998). Qualcomm proposed the instruction before trial. (Doc. 336-8, p. 57.) Parkervision concedes that if it had "put forward affirmative misstatements of the law [concerning disparagement] in an attempt to mislead the jury ... an instruction may very well have been warranted. [But, we] didn't do that." (Doc. 537, p. 41.)

The Federal Circuit "reviews the legal sufficiency of jury instructions on an issue of patent law without deference to the district court." DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1304 (Fed.Cir. 2006). To alter a judgment based on erroneous jury instructions, the moving party must establish that: "(1) it made a proper and timely objection to the jury instructions, (2) those instructions were legally erroneous, (3) the errors had prejudicial effect, and (4) it requested alternative instructions that would have remedied the error." NTP, Inc. v. Research In Motion, Ltd., 418 F.3d 1282, 1311-12 (Fed.Cir. 2005) (citation and quotation marks omitted); see Bettcher Indus., Inc. v. Bunzl USA, Inc., 661 F.3d 629, 639 (Fed.Cir. 2011). The Federal Circuit orders a new trial based on jury instruction errors when the "instructions as a whole clearly mislead the jury." DSU Med. Corp., 471 F.3d at 1304.

In hindsight, and especially given Parkervision's closing arguments, i4i and disparagement instructions would likely have been appropriate. Nonetheless, viewing the Court's instructions as a whole, the Court cannot find that omission of the disparagement and i4i instructions misled the jury and requires a new trial on validity.

CONCLUSION

Accordingly, it is hereby ORDERED AND ADJUDGED: