Holding: The ability to argue for an alternative claim construction is waived on appeal when the appeal is directed to sufficiency of the evidence and does not argue that claim construction is necessary.
Egenera accused Cisco of patent infringement of US Patent No. 7,231,430, which is directed to a platform that allows the creation of a virtualized network of computers to create a virtualized processing area network. Asserted claims 1 and 5 of the ‘430 Patent requires a plurality of computer processors and at least one control node to emulate Ethernet functionality. Claim 3 and 7 of the ‘430 Patent each require processors programmed to establish a specified virtual LAN topology.
Cisco’s accused product, the Unified Computing System (UCS), includes servers, CPUs, and network interface cards (NICs) to build a scalable computer platform. Server management of the UCS is virtualized by connecting multiple servers through a single switch and using software to deploy servers for specific processing needs. The UCS uses the NICs to create virtual NICs which group servers together into virtual local area networks.
During claim construction, the district court found the disputed term “computer processor/processor” to have its ordinary meaning of simply being a CPU and to not include the NICs in the UCS. Since the UCS used NICs rather than multiple CPUs to emulate Ethernet functionality as required in claims 1 and 5, the district court granted summary judgment of noninfringement with respect to each of these claims. The jury found noninfringement of claims 3 and 7 of the ‘430 Patent and the district court denied Egenera’s JMOL motion and motion for a new trial.
The Federal Circuit affirmed the district court’s grant of summary judgment regarding noninfringement of claims 1 and 5. The evidence offered by Egenera, at best, showed the CPUs in Cisco’s UCS have knowledge of and use Ethernet functionality, but did not emulate Ethernet functionality. Instead, Egenera’s evidence showed that the NICs were the component of the UCS that actually emulated Ethernet functionality. Despite this finding, the Federal Circuit suggested that the real dispute regarding summary judgment may not be the sufficiency of Egenera’s offered evidence, but instead may be an issue of the construction of the term “emulate” and whether this term encompasses the CPU’s mere use of Ethernet functionality. However, Egenera did not ask the district court to construe the meaning of “emulate” and framed its appeal as presenting a sufficiency of the evidence issue and not a claim construction issue. Although in its opening brief, Egenera made reference to claim construction, Egenera later explicitly denied that it was seeking a new construction of the term “emulate.”
On appeal, the appellant waives the ability to argue for an alternative claim construction when it merely alludes to the possibility that the district court’s construction was wrong. Egenera had not raised the issue in its statement of the issues, cited no legal support for its arguments, and did not cite the standard of review for claim construction. Without any prior analysis by the district court, the Federal Circuit will not take up a claim construction dispute on its own.
As for the jury finding of noninfringement of claims 3 and 7 of the ‘430 Patent, Cisco had presented three alternative grounds for noninfringement. The jury returned a general verdict of noninfringement without explicitly stating which of these grounds formed the basis for the verdict. The Federal Circuit will uphold a general verdict if there is sufficient evidence to support any of the alternative grounds for noninfringement. Therefore, to overturn the jury’s finding of noninfringement for claims 3 and 7, Egenera was required to show that the jury lacked substantial evidence with respect to all three grounds. The Federal Circuit found that the evidence presented at trial was sufficient to support a finding that Cisco’s UCS establishes network topology using the NICs rather than using processors as required in claims 3 and 7.
Egenera also argued that a new trial was warranted because Cisco introduced improper expert testimony from lay witnesses. The district court held that Egenera waived this argument because it did not raise an objection to the testimony by these witnesses during trial. Egenera argued that it had preserved this issue through a pretrial motion in limine to preclude Cisco from offering lay witness opinion testimony regarding noninfringement. The Federal Circuit upheld the district court’s finding of waiver. The motion in limine was not sufficient to preserve the right to appeal this issue. Many in limine orders are not self-enforcing and require a party to raise specific objections at trial when it believes that these orders are being violated. Egenera’s pretrial motion in limine was not sufficient to put the district court on notice that Egenera had an objection to the testimony presented at trial.
Leave a Reply