Jack B. Blumenfeld, Esquire, Rodger D. Smith II, Esquire, and Jeremy A. Tigan, Esquire of Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware. Counsel for Plaintiff. Of Counsel: Steven M. Bauer, Esquire, Justin J. Daniels, Esquire, Safraz W. Ishmael, Esquire, Kenneth Rubenstein, Esquire, Anthony C. Coles, Esquire, and Alan Federbush, Esquire of Proskauer Rose LLP.
Richard K. Herrmann, Esquire, and Mary B. Matterer, Esquire of Morris James LLP, Wilmington, Delaware. Counsel for Defendant. Of Counsel: George A. Riley, Esquire, and Luann L. Simmons, Esquire of O'Melveny & Myers LLP.
SUE ROBINSON, District Judge.
Plaintiff MobileMedia Ideas, LLC ("MobileMedia") brought this patent infringement action against Apple Inc. ("Apple"), alleging in its amended complaint that various Apple products infringe sixteen patents. In a memorandum opinion and order dated November 8, 2012, the court issued its claim construction and resolved several summary judgment motions. (D.I. 461; D.I. 462) A seven-day jury trial was held on December 3-11, 2012. Trial was limited to claims 5, 6, and 10 of the '075 patent, claims 23 and 24 of the '068 patent, and claim 73 of the '078 patent. Except for finding no induced infringement, the jury returned a verdict in MobileMedia's favor, finding direct infringement and validity of the '075, '068, and '078 patents. (D.I. 507) Before the court is Apple's renewed Rule 50 motion for judgment as a matter of law ("JMOL") that the asserted claims of the '075, '068, and '078 patents are invalid and not infringed or, in the alternative, for a new trial under Rule 59. (D.I. 517) The court has jurisdiction over these matters pursuant to 28 U.S.C. § 1338.
A. Procedural History
MobileMedia filed this patent infringement action on March 31, 2010 against Apple and subsequently amended its complaint to assert sixteen patents in total. (D. I. 1; D.1. 8) Apple answered and asserted affirmative defenses of, inter alia, non-infringement, invalidity, unenforceability, failure to state a claim, "waiver, laches and/or estoppel, " prosecution history estoppel, and lack of standing. (D.I. 10 at ¶¶ 114-23) Apple also asserted counterclaims for declaratory judgment of non-infringement. ( Id. at ¶¶ 124-208)
On April 4, 2012, the parties stipulated to dismiss the claims and counterclaims related to the '390 patent and the '647 patent. (D.I. 263) On April 25, 2012, MobileMedia deferred four more patents (the '080, '477, '012, and '239 patents) for a later phase, leaving ten patents at issue for summary judgment. On summary judgment, the court found no direct infringement and no induced infringement of claims 1, 7, and 8 of the '068 patent, as well as of all asserted claims of the '231 and '394 patents. (D.I. 461; D.I. 462) In addition, the court found invalidity of all asserted claims of the '828 and '942 patents, no invalidity of the asserted claims of the '068 patent based on the asserted prior art Orbitor Video, and no anticipation of the asserted claims of the '075, '394, and '155 patents based on the asserted prior art. (D.I. 461; D.I. 462) On November 15, 2012, the court excluded from trial claim 1, as amended during reexamination, as well as claims 2 and 3, of the '078 patent. (D.I. 469) MobileMedia then chose claims of three remaining patents to assert at trial (the "asserted claims"): claims 5, 6, and 10 of the '075 patent, claims 23 and 24 of the '068 patent, and claim 73 of the '078 patent. (D.I. 474; D.I. 497 at 18:11-21:10) The products accused of infringing the asserted claims were Apple's iPhone 3G, iPhone 3GS, and iPhone 4 products (collectively, the "iPhone").
Following a seven-day trial, the jury returned a verdict on December 13, 2012 of direct infringement of all asserted claims of the '075, '068, and '078 patents; validity of all asserted claims of the '075, '068, and '078 patents; and no induced infringement of any asserted claims of the '075, '068, and '078 patents. (D.I. 506) The court entered judgment accordingly on December 17, 2012. (D.I. 513) On January 14, 2013, Apple renewed its motion for JMOL pursuant to Federal Rule of Civil Procedure 50(b) and also moved for a new trial. (D.I. 517)
The '075, '068, and '078 patents relate to a variety of technologies in information processing, computing, and mobile phones. The '075 and '068 patents relate to technology for rejecting, silencing, and merging second incoming calls on mobile telephones already connected to a first call, and the '078 patent relates to cameras on mobile devices. The court discusses each patent in more detail infra.
A. Renewed Motion for Judgment as a Matter of Law
To prevail on a renewed motion for judgment as a matter of law following a jury trial, the moving party '"must show that the jury's findings, presumed or express, are not supported by substantial evidence or, if they were, that the legal conclusions implied [by] the jury's verdict cannot in law be supported by those findings.'" Pannu v. lolab Corp., 155 F.3d 1344, 1348 (Fed. Cir. 1998) (quoting Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 893 (Fed. Cir. 1984)). '"Substantial' evidence is such relevant evidence from the record taken as a whole as might be acceptable by a reasonable mind as adequate to support the finding under review." Perkin-Elmer Corp., 732 F.2d at 893. In assessing the sufficiency of the evidence, the court must give the non-moving party, "as [the] verdict winner, the benefit of all logical inferences that could be drawn from the evidence presented, resolve all conflicts in the evidence in his favor, and in general, view the record in the light most favorable to him." Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1348 (3d Cir. 1991); Perkin-Elmer Corp., 732 F.2d at 893. The court may not determine the credibility of the witnesses nor "substitute its choice for that of the jury between conflicting elements of the evidence." Perkin-Elmer Corp., 732 F.2d at 893. In sum, the court must determine whether the evidence reasonably supports the jury's verdict. See Dawn Equip. Co. v. Kentucky Farms Inc., 140 F.3d 1009, 1014 (Fed. Cir. 1998).
B. Motion for a New Trial
Federal Rule of Civil Procedure 59(a) provides, in pertinent part:
A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States.
Fed. R. Civ. P. 59(a). The decision to grant or deny a new trial is within the sound discretion of the trial court and, unlike the standard for determining judgment as a matter of law, the court need not view the evidence in the light most favorable to the verdict winner. See Allied Chern. Corp. v. Darflon, Inc., 449 U.S. 33, 36 (1980); Olefins Trading, Inc. v. Han Yang Chern. Corp., 9 F.3d 282 (1993); LifeScan Inc. v. Home Diagnostics, Inc., 103 F.Supp.2d 345, 350 (D. Del. 2000) (citations omitted); see also 9A Wright & Miller, Federal Practice and Procedure § 2531 (2d ed. 1994) ("On a motion for new trial the court may consider the credibility of witnesses and the weight of the evidence."). Among the most common reasons for granting a new trial are: (1) the jury's verdict is against the clear weight of the evidence, and a new trial must be granted to prevent a miscarriage of justice; (2) newly-discovered evidence exists that would likely alter the outcome of the trial; (3) improper conduct by an attorney or the court unfairly influenced the verdict; or (4) the jury's verdict was facially inconsistent. See Zarow-Smith v. N.J. Transit Rail Operations, 953 F.Supp. 581, 584-85 (D.N.J. 1997) (citations omitted). The court must proceed cautiously, mindful that it should not simply substitute its own judgment of the facts and the credibility of the witnesses for those of the jury. Rather, the court should grant a new trial on the basis that the verdict was against the weight of the evidence only where a miscarriage of justice would result if the verdict were to stand. See Williamson, 926 F.2d at 1352; EEOC v. Del. Dep't of Health & Soc. Servs., 865 F.2d 1408, 1413 (3d Cir. 1989).
A. Apple's Renewed JMOL Motion
Apple advances several arguments in support of its renewed motion for JMOL. Regarding invalidity, Apple asserts that it "presented clear and convincing evidence identifying every limitation of the asserted claims in the prior art and establishing why one of ordinary skill would have combined these invalidity references." (D.I. 518 at 1) It asserts that MobileMedia presented no evidence of secondary indicia of nonobviousness and relied on conclusory expert testimony that conflicted with legal standards and the evidence. ( Id. ) Regarding non-infringement, Apple avers that MobileMedia presented no evidence that Apple directly infringes the '075 or '068 patent, and that MobileMedia's only infringement theory for the '078 patent was neither disclosed in discovery nor supported by the evidence. ( Id. )
A patent is infringed when a person "without authority makes, uses or sells any patented invention, within the United States... during the term of the patent." 35 U.S.C. § 271 (a). To prove direct infringement, the patentee must establish, by a preponderance of the evidence, that one or more claims of the patent read on the accused device literally or under the doctrine of equivalents. See Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 261 F.3d 1329, 1336 (Fed. Cir. 2001). A two-step analysis is employed in making an infringement determination. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995). First, the court must construe the asserted claims to ascertain their meaning and scope. See id. Construction of the claims is a question of law subject to de novo review. See Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed. Cir. 1998). The trier of fact must then compare the properly construed claims with the accused infringing product. See Markman, 52 F.3d at 976. This second step is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed. Cir. 1998).
"Direct infringement requires a party to perform each and every step or element of a claimed method or product." Exergen Corp. v. Wai-Mart Stores, Inc., 575 F.3d 1312, 1320 (Fed. Cir. 2009) (internal quotation marks omitted). "If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law." Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed. Cir. 2000). If an accused product does not infringe an independent claim, it also does not infringe any claim depending thereon. See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed. Cir. 1989). However, "[o]ne may infringe an independent claim and not infringe a claim dependent on that claim." Monsanto Co. v. Syngenta Seeds, Inc., 503 F.3d 1352, 1359 (Fed. Cir. 2007) (quoting Wahpeton Canvas, 870 F.2d at 1552) (internal quotation marks omitted). The patent owner has the burden of proving infringement and must meet its burden by a preponderance of the evidence. See SmithKiine Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed. Cir. 1988) (citations omitted).
Under 35 U.S.C. § 102(e),
a person shall be entitled to a patent unless an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent... or a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent.
A claim is anticipated only if each and every limitation as set forth in the claim is found, either expressly or inherently described, in a single prior art reference. Verdegaal Bros., Inc. v. Union Oil Co., 814 F.2d 628, 631 (Fed. Cir. 1987). A single prior art reference may expressly anticipate a claim where the reference explicitly discloses each and every claim limitation. However, the prior art need not be ipsissimis verbis (i.e., use identical words as those recited in the claims) to be expressly anticipating. Structural Rubber Prods. Co. v. Park Rubber Co., 749 F.2d 707, 716 (Fed. Cir. 1984). A single prior art reference also may anticipate a claim where one of ordinary skill in the art would have understood each and every claim limitation to have been disclosed inherently in the reference. Cant'l Can Co. USA Inc. v. Monsanto Co., 948 F.2d 1264, 1268 (Fed. Cir. 1991). The Federal Circuit has explained that an inherent limitation is one that is necessarily present and not one that may be established by probabilities or possibilities. Id. That is, "the mere fact that a certain thing may result from a given set of circumstances is not sufficient." Id. The Federal Circuit also has observed that "inherency operates to anticipate entire inventions as well as single limitations within an invention." Schering Corp. v. Geneva Pharm. Inc., 339 F.3d 1373, 1380 (Fed. Cir. 2003). Moreover, recognition of an inherent limitation by a person of ordinary skill in the art before the critical date is not required to establish inherent anticipation. Id. at 1377.
Even if the prior art discloses each and every limitation set forth in a claim, such disclosure will not suffice under 25 U.S.C. § 102 if it is not enabling. In re Borst, 345 F.2d 851, 855 (C. C.P.A. 1965). "Long ago our predecessor court recognized that a non-enabled disclosure cannot be anticipatory (because it is not truly prior art) if that disclosure fails to enable one of skill in the art to reduce the disclosed invention to practice.'" Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1354 (Fed. Cir. 2003) (citations omitted). The patentee bears the burden to show that the prior art reference is not enabled and, therefore, disqualified as relevant prior art for an anticipation inquiry. Id. at 1355.
An anticipation inquiry involves two steps. First, the court must construe the claims of the patent in suit as a matter of law. Key Pharm. v. Hereon Lab. Corp., 161 F.3d 709, 714 (Fed. Cir. 1998). Second, the finder of fact must compare the construed claims against the prior art to determine whether the prior art discloses the claimed invention. Id. The burden of proof rests on the party asserting invalidity and can be met only by clear and convincing evidence. Microsoft Corp. v. i4i Ltd. P'ship, ___ U.S. ___, 131 S.Ct. 2238, 2242, 180 L.Ed.2d 131 (2011) ("We consider whether [35 U.S.C.] § 282 requires an invalidity defense to be proved by clear and convincing evidence. We hold that it does.").
"A patent may not be obtained... if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art." 35 U.S.C. § 103(a). Obviousness is a question of law, which depends on underlying factual inquiries.
Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented.
KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007) (quoting Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966)).
"[A] patent composed of several elements is not proved obvious merely by demonstrating that each of its elements was, independently, known in the prior art." KSR, 550 U.S. at 418. Likewise, a defendant asserting obviousness in view of a combination of references has the burden to show that a person of ordinary skill in the relevant field had a reason to combine the elements in the manner claimed. Id. at 418-19. The Supreme Court has emphasized the need for courts to value "common sense" over "rigid preventative rules" in determining whether a motivation to combine existed. Id. at 419-20. "[A]ny need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for combining the elements in the manner claimed." Id. at 420. In addition to showing that a person of ordinary skill in the art would have had reason to attempt to make the composition or device, or carry out the claimed process, a defendant must also demonstrate that "such a person would have had a reasonable expectation of success in doing so." PharmaStem Therapeutics, Inc. v. ViaCell, Inc., 491 F.3d 1342, 1360 (Fed. Cir. 2007).
A combination of prior art elements may have been "obvious to try" where there existed "a design need or market pressure to solve a problem and there [were] a finite number of identified, predictable solutions" to it, and the pursuit of the "known options within [a person of ordinary skill in the art's] technical grasp" leads to the anticipated success. KSR, 550 U.S. at 421. In this circumstance, "the fact that a combination was obvious to try might show that it was obvious under § 103." Id.
A fact finder is required to consider evidence of secondary considerations, or objective indicia of nonobviousness, before reaching an obviousness determination, as a "check against hindsight bias." See In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litig., 676 F.3d 1063, 1079 (Fed. Cir. 2012). "Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented." John Deere Co., 383 U.S. at 17-18.
"Because patents are presumed to be valid, an alleged infringer seeking to invalidate a patent on obviousness grounds must establish its obviousness by facts supported by clear and convincing evidence." Kao Corp. v. Unilever U.S., Inc., 441 F.3d 963, 968 (Fed. Cir. 2006) (citation omitted). In conjunction with this burden, the Federal Circuit has explained that,
[w]hen no prior art other than that which was considered by the PTO examiner is relied on by the attacker, he has the added burden of overcoming the deference that is due to a qualified government agency presumed to have properly done its job, which includes one or more examiners who are assumed to have some expertise in interpreting the references and to be familiar from their work with the level of skill in the art and whose duty it is to issue only valid patents.
PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 1304 (Fed. Cir. 2008) (quoting Am. Hoist & Derrick Co. v. Sowa & Sons, 725 F.2d 1350, 1359 (Fed. Cir. 1984)).
2. The '075 Patent
The '075 patent, titled "Method and Apparatus for Incoming Call Rejection, " relates to call processing techniques for rejecting incoming calls in cellular telecommunications systems. ('075 patent, col. 1:15-16) Conventionally, "wireless telecommunications systems are made up of a series of base stations connected to landline telecommunications networks...." ( Id., col. 1:31-33) These base stations communicate by base station controllers and can establish radio frequency ("RF") communications channels with remote mobile phones (or "mobiles"). ( Id., col. 1:34-37) When a person attempts to call a mobile phone user who is in the geographic coverage area of the wireless system, "the base station acts as an intermediary by [sending a call alert to] the mobile via at least one RF channel." ( Id., col. 2:1-3) Thereafter, the base station waits for a fixed time period, or a ringing cycle, to receive a response from the mobile phone. ( Id., col. 2:3-6) If the mobile phone user answers the call, the mobile phone sends a response to the base station, which sets up a connection over an existing or new RF channel. ( Id., col. 2:13-18) If the user does not answer the call, "the base station releases the call by terminating the call alert to the mobile and signaling to the caller that the mobile is unavailable." ( Id., col. 2:7-10) According to the '075 patent, prior art wireless telecommunications systems did not provide users the option to reject calls immediately on demand, so a user had to either power off the mobile phone or allow it to ring through the entire ringing cycle. ( Id., col. 2:36-53)
To address this need, the '075 patent teaches a method and apparatus that allow a user of a mobile communications device to automatically or manually reject calls. ( Id., col. 3:32-47) The reexamined patent only relates to the rejection of incoming calls while the device is "in communication with a first calling station, " or already connected to a first call. (See id., claims 10, 15) Specifically, the claimed invention is directed to a mobile phone rejecting a second incoming call by sending a "rejection message" to the wireless system with "at least one information element indicating to the wireless system that the wireless system is to immediately release the incoming call." ( Id., col. 12:31-33)
The '075 patent was issued on June 26, 2001 and claims priority to a provisional application filed May 19, 1998. An ex parte reexamination certificate cancelling claims 1-4, amending claims 10, 13, and 14, and confirming claims 5-9, 11-12, and 14 was issued on March 20, 2012. Claims 5, 6, and 10 were asserted at trial. Claim 5 and reexamined claim 10 are reproduced below:
5. A method of rejecting an incoming call to a mobile phone, said mobile phone having a transceiver circuit for transmitting and receiving transmissions to and from a remote transceiver, said mobile phone in communication with a first calling station via the remote transceiver on a communication channel in a wireless system, said method comprising the steps of:
receiving at the mobile phone, a transmission from the remote transceiver signifying that there is an incoming call;
determining at the mobile phone if said incoming call is to be rejected; and
transmitting from the mobile phone a rejection message to the remote transceiver in response to a determination being made, during said step of determining, that said incoming call is to be rejected, said rejection message comprising at least one information element indicating to the wireless system that the wireless system is to immediately release the incoming call on the communication channel between the mobile phone and remote transceiver.
10. In a mobile communications device, apparatus in communication with a first calling station for selectably rejecting an incoming call, said apparatus comprising: a transceiver operable to send and receive transmissions to and from a remote transceiver in a wireless system on a communication channel, said transceiver for receiving a transmission signifying that an incoming call is being attempted; and
a control processor coupled to said transceiver, said control processor for determining if said incoming call is to be rejected and, in response to a positive determination, said control processor for outputting a rejection message to said transceiver for transmission to said remote transceiver, wherein said rejection message comprises at least one information element indicating to the wireless system that the wireless system is to immediately release the incoming call on the communication channel between the mobile communications device and remote transceiver.
(Emphasis added) Dependent claim 6 teaches the method of claim 5, "wherein the mobile phone includes an actuator operable by a user for inputting a manual input to the mobile phone."
a. Invalidity of the '075 patent
(1) Apple's evidence
At trial, Apple asserted that the claims of the '075 patent are obvious based on combinations of (1) Global System for Mobile Communications standard ("GSM") 04.83 and GSM 04.08 (collectively, "GSM 04.83/04.08"), and (2) the '068 patent with GSM 04.83/04.08. Apple presented evidence that these references are prior art and that, together, they disclose all limitations of the asserted claims of the '075 patent. ( See D.I. 534 at 1099:6-1100:8) Specifically, GSM 04.08 discloses the messages exchanged between a mobile phone and a base station to establish and release a single call. (DTX 40 § 188.8.131.52; D.I. 534 at 1102:14-16, 1108:3-5, 1108:18-20, 1152:8-20) GSM 04.83 discloses call handling for second incoming calls (or "call waiting" calls). (DTX 41 §§ 1.1, 1.3.1; D.I. 534at 1102:13-14, 1104:15-19, 1108:1-2)
Apple's expert, Dr. Robert Akl ("Dr. Akl"), testified at trial that it would have been obvious for a person of ordinary skill to combine GSM 04.83 and GSM 04.08 to reject a second incoming call for several reasons. (D.I. 534 at 1107:9-1109:6) GSM 04.83/04.08 are parts of Phase 2 of the GSM standard, published by one standards body, the European Telecommunications Standards Institute ("ETSI") in 1995. Id. at 1108:6-10; DTX 40; DTX 41) He also pointed to GSM 04.83's express instruction to an engineer to use GSM 04.08 and averred that one of ordinary skill could easily locate the relevant portions of GSM 04.08 by using, for instance, the table of contents and recognizing that the relevant sections of GSM 04.83 and GSM 04.08 share "very similar'' titles - "[w]aiting call indication and confirmation" (GSM 04.83 § 1.1) vs. "[c]all indication" and "[c]all confirmation" (GSM 04.08 §§ 184.108.40.206, 220.127.116.11). (D. I. 534 at 1107:15-1109:6; see also id. at 1152:8-20) Another Apple witness, engineer Matthew Klahn ("Klahn"), also testified that it would be "trivial" for an engineer to find the relevant portions of GSM 04.08 by referring to the index, which lists sections by functionality. (D.I. 533 at 863:15-25) Apple further pointed out that the inventors explicitly recognized, in their provisional application for the '075 patent, that "GSM has a feature like this." (JTX 11 at 2; D.I. 534 at 1100:4-1102:3)
In addition, Apple argues that the opinion of MobileMedia's expert, Dr. Sigurd Meldal ("Dr. Meldal"), that a person of ordinary skill would not be motivated to combine GSM 04.83 and GSM 04.08 contradicts MobileMedia's infringement theory, which depends on the combination of two later GSM documents: GSM 24.083 and GSM 24.008 (collectively, "GSM 24.083/24.008"). (D.I. 532 at 587:25-599:3; D. I. 535 at 1437:9-1438:18) Dr. Akl testified that GSM 24.083/24.008 are "very similar" to GSM 04.83/04.08 and that the relevant GSM functionality (regarding the "disconnect, " "release, " and "release request" messages) has not changed in the 20 years since the GSM 4.83 and GSM 4.08 standards were published. (D.I. 534 at 1097:23-1099:3)
Furthermore, in response to MobileMedia's suggestion that going from a first call rejection to a second call rejection required an inventive leap, Apple submitted the '068 patent as another prior art reference to supply this inventive leap. The '068 patent teaches a user interface that provides an option to reject a second incoming call and states that rejection of the second incoming call may be performed using standards in the GSM system. ('068 patent, Figs. 6A, 68, 6D, 7, col. 1:8-13, 1:17-28; D.I. 534 at 1114:14-1123:18, 1156:4-22)
(2) MobileMedia's evidence
Mobile Media did not dispute that GSM 04.83 and GSM 04.08, together with or without the '068 patent, disclose every limitation of the asserted claims. ( See D.I. 534 at 1102:9-12; D.I. 535 at 1394:10-21, 1403:22-1404:10; see also D.I. 520 at 14-15) MobileMedia also did not offer any evidence of secondary considerations of nonobviousness, and the jury was not instructed on such considerations. (See D. I. 505) Instead, MobileMedia focused on showing that one of ordinary skill could not "put rejection from [GSM] 04.08 onto call waiting [from GSM 04.83]." (D.I. 536 at 1564:15-17) In post-trial briefing, it argues that the court's denial of summary judgment of obviousness based on this combination supports the verdict of validity because whether GSM 04.08 ...