Case 3:11-cv-00719-RBD-TEM Document 270 Filed 05/22/13 Page 1 of 32 PageID 8961

UNITED STATES DISTRICT COURT THE MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION PARKERVISION, INC., Plaintiff, v. QUALCOMM INCORPORATED, Defendant. Case No. 3:11-cv-719-J-37-TEM

QUALCOMMS MOTION FOR PARTIAL SUMMARY JUDGMENT AND ACCOMPANYING MEMORANDUM OF LAW REDACTED VERSION

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TABLE OF CONTENTS Page Request for Oral Argument ......................................................................................................... 1 I. II. Introduction ...................................................................................................................... 1 Factual Background and Procedural History .............................................................. 3 A. Qualcomm and Its Subsidiaries Independently Developed Their Own Direct Downconversion Technology. ..................................................... 3 1. In the late 1990s, direct downconversion technology was well-known but had limitations preventing widespread implementation in cell phones. ............................................................ 3 In 1998, ParkerVision approached Qualcomm, saying that it had developed a direct-to-digital product that could replace Qualcomms existing downconversion technology. ........... 4 ParkerVision ultimately could not demonstrate working technology for cell phones, and the discussions ended in mid-1999. ................................................................................................. 5 By 2002, Qualcomm independently developed and implemented its ZIF direct downconversion technology, which ParkerVision concedes does not infringe. .............................. 7 In the mid-2000s, Qualcomm purchased Berkana and soon thereafter began incorporating Berkanas noninfringing direct downconversion technology into Qualcomms chipsets. ................................................................................................... 8

2.

3.

4.

5.

B. III.

ParkerVision Decides that Its Most Promising Business Strategy is Litigation and Initiates This Case. .................................................................... 9

Argument ........................................................................................................................ 11 A. ParkerVision Has Failed to Offer Any Evidenceor Even Contentionsthat the Atheros Products Infringe Any of the Patents-in-Suit. .................................................................................................. 12 1. 2. ParkerVision failed to submit the expert testimony required to prove infringement. ........................................................ 12 ParkerVision has failed to submit any other evidence to support a claim of infringement as to the Atheros products................................................................................................. 14

B.

Qualcomm Is Entitled to Summary Judgment of No Pre-Suit Indirect Infringement for Four of the Six Asserted Patents. ....................... 14

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TABLE OF CONTENTS (cont.) Page 1. To prevail on indirect infringement, ParkerVision must prove that Qualcomm had knowledge of the asserted patents. .................................................................................................. 14 ParkerVision cannot show that Qualcomm had pre-suit knowledge of four of the six asserted patents. ................................ 15 ParkerVisions other evidence does not raise a triable issue of fact. .................................................................................................... 17 Because Qualcomm lacked pre-suit knowledge, the Court should grant partial summary judgment of no pre-suit indirect infringement. .......................................................................... 19

2. 3. 4.

C.

Qualcomm is Entitled to Summary Judgment that Its 50% Duty Cycle Products Do Not Infringe the Patents-in-Suit. ................................... 20 1. 2. All asserted claims require discharge of energy from a storage device. ...................................................................................... 20 Dr. Prucnal has admitted that products which employ a 50% duty cycle do not discharge energy from a storage device. .................................................................................................... 22 Qualcomms 50% duty cycle products do not discharge energy from a storage device. ............................................................ 23

3. IV.

Conclusion ...................................................................................................................... 25

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TABLE OF AUTHORITIES Page(s) CASES Apeldyn Corp. v. AU Optronics Corp., 831 F. Supp. 2d 817 (D. Del. 2011)............................................................................................18 AquaTex Indus., Inc. v. Techniche Solutions, 479 F.3d 1320 (Fed. Cir. 2007) ..................................................................................................12 Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476 (1964) ...................................................................................................................15 Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., 888 F.Supp.2d 637 (W.D. Pa. 2012) ..........................................................................................12 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ...................................................................................................................11 Centricut LLC v. Esab Grp., Inc., 390 F.3d 1361 (Fed. Cir. 2004) ..................................................................................................12 Chalumeau Power Sys. LLC v. Alcatel-Lucent, No. 11-1175-RGA, 2012 WL 6968938 (D. Del. July 18, 2012)....................................................19 DSU Med. Corp. v. JMS Co., 471 F.3d 1293 (Fed. Cir. 2006) ..................................................................................................15 Fujitsu Ltd. v. Netgear, Inc., 620 F.3d 1321 (Fed. Cir. 2010) ..................................................................................................15 Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011) ..........................................................................................................15, 18 Intellect Wireless Inc. v. Sharp Corp., 10 C 6763, 2012 WL 787051 (N.D. Ill. Mar. 9, 2012) .................................................................15 Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292 (11th Cir. 2011) ..................................................................................................11 Lantech Inc. v. Keip Mach. Co., 32 F.3d 542 (Fed. Cir. 1993) ......................................................................................................12 McRee v. Goldman, 11-CV-00991-LHK, 2012 WL 3745190 (N.D. Cal. Aug. 28, 2012) .......................................17, 18

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TABLE OF AUTHORITIES

Page Network Protection Sciences, LLC v. Fortinet, Inc., Case No. C 12-01106 WHA (N.D. Cal. May 9, 2013)....................................................................... 2 Pacing Techs., LLC v. Garmin Intl, Inc., 12-CV-1067, 2013 WL 444642 (S.D. Cal. Feb. 5, 2013) ........................................................15, 19 Proveris Scientific Corp. v. Innovasystems, Inc., 536 F.3d 1256 (Fed. Cir. 2008)........................................................................................................... 12 Ultra-Tex Surfaces Inc. v. Hill Bros. Chem. Co., 204 F.3d 1360 (Fed. Cir. 2000)........................................................................................................... 12 Vasudevan Software, Inc. v. TIBCO Software Inc., No. C 11-6638 RS, 2012 WL 1831543 (N.D. Cal. May 18, 2012) ............................................. 17, 18 Zamora Radio, LLC v. Last.FM, Ltd., 758 F. Supp. 2d 1242 (S.D. Fla. 2010) ............................................................................................... 16 STATUTES 35 U.S.C. 271(b), (c) ......................................................................................................................... 14, 17 OTHER AUTHORITIES Fed. R. Civ. P. 56(a) .................................................................................................................................. 11 Local Rule 3.01(j) ........................................................................................................................................ 1

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Qualcomm respectfully moves for partial summary judgment of noninfringement on the three grounds described below and submits this brief in support of its motion. Request for Oral Argument Pursuant to Local Rule 3.01(j), Qualcomm respectfully requests oral argument on its Motion so that the parties may present their respective positions. Qualcomm estimates that a hearing time of two hours will be sufficient for oral argument. Introduction In 1998, ParkerVision came to Qualcomm with ambitious claims about its technology, contending that it could perform universal direct downconversion of cellular telephone signals. Qualcomm was intrigued, and even hopeful. Although direct downconversion was relatively easy to perform in simple wireless applications, doing it in cellular was another matter altogether. Qualcomm offered to pay ParkerVision for the technologyif ParkerVision could show it worked in cellular CDMA applications. ParkerVision was never able to make that showing and then withdrew from the discussions. In 1999, Qualcomm and ParkerVision went their separate ways. Qualcomm continued its independent research and development efforts, and ultimately developed its own direct downconversion technology. Qualcomms technology worked for cellular and indisputably does not infringe ParkerVisions patents. Then in late 2005, Qualcomm acquired a promising start-up, Berkana, that had also developed its own direct downconversion technology independently from ParkerVision. Qualcomm incorporated the technology it acquired from Berkana into its own products. The direct downconversion technologies that Qualcomm and Berkana developed are each very different from the

I.

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technology claimed in the patents that issued to ParkerVision, patents that are invalid and/or exceedingly narrow in scope. Nevertheless, in 2011, ParkerVision filed this case against Qualcomm. While ParkerVisions case could have been presented efficiently, it has not been. Instead, ParkerVision is accusing 71 Qualcomm products of infringing 86 claims of six patents. As another District Court recently recognized, ParkerVisions approach imposes a bone-crushing burden on defendants even though the plaintiff knows that it is not feasible to present more than a handful of claims to a juryespecially with technology as complicated as that involved here.1 Despite continuing to assert scores of claims against numerous accused products, ParkerVision has failed to present any evidence to carry its burden of proof on infringement as to whole categories of accused products and legal theories. Qualcomm now moves for summary judgment on three such issues: Qualcomm is entitled to summary judgment of non-infringement as to all products designed and sold by a company that Qualcomm acquired in 2011, Atheros Communications. ParkerVision has not submitted the expert testimonyor any other evidencerequired to support its claim that any Atheros products infringe the Patentsin-Suit. Qualcomm is also entitled to summary judgment on ParkerVisions assertion that Qualcomm indirectly infringed four of the six Patents-in-Suit before ParkerVision sued, because ParkerVision presents no evidence that Qualcomm had pre-suit knowledge of any of those patents. Finally, Qualcomm seeks summary judgment because ParkerVisions expert has admitted that he cannot prove that the forty-nine 50% Duty Cycle products ParkerVision accuses of infringement practice each element of the asserted claims.

Network Protection Sciences, LLC v. Fortinet, Inc., Case No. C 12-01106 WHA (N.D. Cal. May 9, 2013) (NPS imposed upon Fortinet a bone-crushing burden of conducting a prior art search for more than fifty patent claims); (It is impractical for either side to present fifteen claims at trial); and (Successful patent plaintiffs almost always present only one, two or three claims to a jury.).
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Accordingly, Qualcomm requests that the Court enter partial summary judgment in Qualcomms favor. Factual Background and Procedural History A. Qualcomm and Its Subsidiaries Independently Developed Their Own Direct Downconversion Technology.

II.

1.

In the late 1990s, direct downconversion technology was well-known but had limitations preventing widespread implementation in cell phones.

This case addresses the downconversion functionality in a wireless receiver. To send information wirelessly, a transmitter must send a high-frequency signal that can travel over the air, using the information to modulate the high-frequency signal before transmission. (Ex. 1, 42-45.) To recover the information, a device receiving the highfrequency signal must downconvert the signal by removing the high-frequency components. (Ex. 1, 46-47.) Engineers face difficult tradeoffs when designing downconversion components for receivers. During the 1990s, most cell phone receiver chips used a superheterodyne receiver architecture, which requires two stages of mixing to downconvert the signal from a high-frequency to an intermediate frequency and then to the low-frequency, baseband signal. (Ex. 1, 68-69.) In each stage, the receiver mixes the existing signal with a signal created by a circuit within the receiver called a local oscillator. (Id.) Although the superheterodyne receivers multiple stages required complex circuitry involving many components, its outstanding performance characteristics met the rigorous specifications for cell phones. Engineers have also known about direct downconversion circuits since the 1920s. (Ex. 1, 70-71.) Although direct downconversion technology had advanced greatly by the late 1990s, it still suffered from implementation problems that limited its adoption in cell phones.

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(Ex. 1, 72.) One barrier preventing widespread adoption in cell phones was the local oscillator. Using a traditional mixer for direct downconversion requires a local oscillator operating at the same high frequency as the carrier signal. Using techniques existing at the time, however, operating a local oscillator at that frequency presented numerous challenges to meeting cell phone specifications.

2.

In 1998, ParkerVision approached Qualcomm, saying that it had developed a direct-to-digital product that could replace Qualcomms existing downconversion technology.

ParkerVision approached Qualcomm in 1998 asserting that it had created a downconversion component radically different from mixers. (Ex. 2 at PV00184626.) ParkerVision claimed that its direct-to-digital (D2D) product made three leaps over existing technology. First, ParkerVision claimed that its D2D product would eliminate nearly all of the complex circuitry required by superheterodyne receivers, and thus reduce costs. As a Qualcomm employee noted, ParkerVision [c]laims to eliminate all the IF stages. (Ex. 3 at QCPV001389987.) Second, ParkerVision claimed that it had made a universal downconversion device. Different cell phone standards and service providers operate on different frequency bands. ParkerVision asserted that D2D can be used to create the core for a universal receiver solution in which one set of hardware could be used to downconvert signals across the various frequency bands. (Ex. 4 at 6; see also id. at 9 (D2D has wideband capability that coupled with a single low frequency, low power clock, allows for single or multi-band operation making it an excellent solution for applications requiring 900 MHz, 1.9 GHz, and/or 2.5 GHz operation) (emphasis added).)

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Third, ParkerVision claimed to have discovered a way to avoid the limitations associated with existing local oscillators that had created a roadblock preventing widespread implementation of direct downconversion. As ParkerVision stated in an August 1998 presentation: While direct conversion is known to all RF designers, its drawbacks are known as well. Generating a high level oscillator at the receive frequency is but one of the problems inherent with the implementations tried in the past that have ended up in the dustbin. (Id. at 3.) ParkerVision allegedly sidestepped that problem by using a low frequency, low power clock input, instead of a high-level local oscillator at the receive frequency. (Id. at 3.) ParkerVision said that its D2D technology had [n]o internal or external signals (local oscillators) near the desired radio frequency band. (Ex. 5 at QCPV001389992) (emphasis added).) In sum, when ParkerVision approached Qualcomm in 1998, ParkerVision asserted that it had developed a simple, universal, direct-to-digital receiver that could replace the complex, frequency band-specific, multi-stage receivers Qualcomm used in its cell phone receiver chips. Throughout the years, ParkerVision has reiterated these claims about its D2D technology. For example, ParkerVision continued to proclaim in a 2002 presentation that, unlike its simpler D2D design, typical on-chip mixers require 4 balanced transistor pairs. (Ex. 6 at QCPV001392494 (emphasis added, capitalization omitted).)

3.

ParkerVision ultimately could not demonstrate working technology for cell phones, and the discussions ended in mid-1999.

Some Qualcomm employees initially expressed enthusiasm about ParkerVisions claims. A business development executive, Jeff Jacobs, stated that the [b]asic feeling is that if you can do what you say you can do that it is very impressive and we could have a significant interest but we have got to be shown that it can work. (Ex. 7 at PV00184647.) Another
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employee working on the licensing side of the evaluation, Prashant Kantak, stated more profusely that, [w]hile sounding too good to be true, if indeed true, it could be the holy grail of RF receivers. (Ex. 8 at QCPV001390126.) Other Qualcomm employees were skeptical. An engineer evaluating the project cautioned: Until we know what the inner working of the D2D is, this is pure speculation. We cannot proceed further without details of the D2D architecture itself. (Ex. 9 at QCPV001547658.) Another engineer similarly stated: [T]here are any number of approaches that do exactly what [ParkerVision] does - sampler with impulses doing the sampling, a VLSI mixer (Gilbert cell or other), the mixer in the Lucent paper. . . . My point is that this is the easy part of direct conversion. (Ex. 10 at QCPV001547792 (emphasis added).2) Ultimately, ParkerVision could not demonstrate a downconversion device meeting the rigorous specifications of Qualcomm chipsets. Following several rounds of testing, there remained a number of open issues and obstacles with D2D that need to be overcome before it [could] be used as a direct down conversion receiver for CDMA. (Ex. 12 at QCPV001390519; see also Ex. 13 at QCPV001564760 (As it stands today, [D2D] will not directly meet the requirements of IS-98.).) These unresolved obstacles included critical issues such as LO radiation, DC offset, isolation, and baseband dynamic range. (Ex. 14, 155.) The Qualcomm-ParkerVision discussions also broke down over financial issues. Qualcomm submitted a proposal for a joint development agreement that conditioned any future royalties on the actual workability of the technology. Soon afterwards, ParkerVision walked away from the negotiations, claiming that it was considering another offer. Even after
See also Ex. 11 at QCPV001389395 (We have run into several roadblocks in our mixer-based implementation that I think would only be worse in a D2D approach. The problems concern the dynamic range required for CDMA, and specs regarding single and multi-tone jammers. These problems may or may not be solvable using D2D if they arent, the D2D technology is of little or no value to us.).
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ParkerVision walked away, Qualcomm confirmed that it was still receptive to receiving the proposals on the various licensing scenarios but that we still also believe that there is considerable risk in applying D2D to CDMA applications and, in any case, it will require considerable development effort. (Ex. 15 at QCPV001390501.) ParkerVision did not reengage in negotiations with Qualcomm. Nor has ParkerVision ever worked successfully with a thirdparty to bring a cell phone chipset to market.

4.

By 2002, Qualcomm independently developed and implemented its ZIF direct downconversion technology, which ParkerVision concedes does not infringe.

Around the same time as the Qualcomm-ParkerVision discussions, Qualcomm began an internal program for developing direct downconversion receiver to replace Qualcomms superheterodyne receiver. (Ex. 16 at QCPV011417641-42.) Qualcomms ZIF (zero intermediate frequency) program resulted in the elimination of numerous receiver components and redesign of many others. (Id. (describing radioOne ZIF architecture and stating that [e]ntire IF [intermediate frequency] section is removed with radioOne, resulting in a [s]ignificant component reduction in Bill of Material).) As part of the ZIF program, Qualcomm also redesigned the local oscillator so that it could handle the high frequencies needed for mixer-based direct downconversion. Qualcomm was awarded several patents on its new local oscillator circuit design.3 Qualcomm shipped the first engineering samples including its ZIF design on March 31, 2002. (Ex. 17 at QCPV011410409.) The first commercial product including the ZIF design was the RFR6000 receiver. Qualcomm used the ZIF active-mixer architecture in a large
E.g., U.S. Patent Nos. 6,960,962 (Local oscillator leakage control in direct conversion processes); 7,062,229 (Discrete amplitude calibration of oscillators in frequency synthesizers); 7,546,097 (Calibration techniques for frequency synthesizers); 7,570,925 (Discrete amplitude calibration of oscillators in frequency synthesizers); and No. 8,019,301 (Calibration techniques for frequency synthesizers).
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number of commercially successful products from 2002 to 2006. (Ex. 18, 45-47.) Developing ZIF required a significant investment of engineering time and resources, including hundreds of engineer-months. ParkerVision does not dispute that Qualcomms independently developed active-mixer ZIF technology does not infringe any of the asserted patents. Nor does ParkerVision dispute that ZIF allowed Qualcomm to achieve the benefits of transitioning from a complex superheterodyne architecture to a much simpler and less expensive direct downconversion configuration.

5.

In the mid-2000s, Qualcomm purchased Berkana and soon thereafter began incorporating Berkanas noninfringing direct downconversion technology into Qualcomms chipsets.

In the mid-2000s, Qualcomm purchased a company called Berkana Wireless Inc. for $56 million. (Ex. 19 at QCPV009411884.) Berkana brought to Qualcomm a core of highly qualified engineers and technology including a sophisticated phase lock loop circuit and a design and prototype for a passive-mixer direct downconversion circuit. (See generally Ex. 20.) Following the acquisition, Qualcomms engineers worked with the Berkana engineers to adapt the Berkana passive mixer design for use in Qualcomms receiver chipsets. (Id.) Qualcomm announced the release of the first product including the Berkana architecturethe RTR6285in February 2006 and imported the first prototype later that year. (Ex. 21.) Qualcomm continues to employ many of the same basic Berkana designs to this day in its receivers. Although the Berkana direct downconversion design has many benefits, it does not have several characteristics ParkerVision touted as benefits of its D2D design in 1999. For example, Qualcomm does not have a universal downconverter, but instead must still use different mixers and local oscillators for the different RF frequency bands used within the
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United States and around the world. (E.g., Ex. 22 at QCPV000000760.) Likewise, the Berkana design does not employ the simple design proposed by ParkerVision. For example, Qualcomm still uses the same four balanced transistor pairs that ParkerVision derided in the early 2000s as being inferior to its D2D technology. (See Ex. 6 at QCPV001392494.) Although ParkerVision has accused the Berkana passive mixer design of infringement, Jeff Parker has conceded that Berkana had no access to, and did not copy, ParkerVisions technology. (See Ex. 23 at 260:8-261:8.) B. ParkerVision Decides that Its Most Promising Business Strategy is Litigation and Initiates This Case. After enduring millions of dollars in losses year after year, ParkerVision decided to pursue a new business strategy in 2011. Without prior notice to Qualcomm, ParkerVision filed its original complaint on July 21, 2011. (See Dkt. 1.) On September 16, 2011, Qualcomm filed its Answer and Counterclaim, which included a request for a declaratory judgment of noninfringement. (Dkt. 18.) In its original complaint, ParkerVision accused two Qualcomm products of infringing an unidentified number of claims in seven patents. (Complaint, 9, 11). On January 30, 2012, ParkerVision served its infringement contentions, expanding the case to accuse over 60 products and assert well over 80 claims from six patents.4 (See Ex. 24.) On March 2, 2012, ParkerVision served amended infringement contentions. (Dkt. 152-7, at 2-3). On August 27, 2012, ParkerVision moved for leave to serve supplemental infringement contentions to accuse 25 new products. (Compare Dkt. 152-7, Section B and Dkt. 152-1, Section B). ParkerVisions infringement contentions cover a variety of product typesincluding 50% duty

In its infringement contentions, ParkerVision dropped two patents and added a third. 9

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cycle, 25% duty cycle, current mode, and voltage mode product typesthat raise distinct noninfringement issues. The new list of accused products included, for example, 15 products with an AR prefix. (Dkt. 152-1, Section B). Those products were all designed and sold by a company, Atheros Communications, Inc., that Qualcomm acquired just before ParkerVision filed its complaint (the Atheros Products). Although it sought leave to accuse a host of products designed and sold by a company that was entirely independent of Qualcomm, ParkerVision did not also seek leave to amend its existing infringement contentions to support its claim of infringement as to the newly accused products. Nevertheless, Qualcomm collected and produced voluminous schematics regarding the Atheros Products. Those schematics, and other evidence, demonstrate that the Atheros Products do not have the storage element required by the claims. On November 16, 2012, this Court administratively terminated ParkerVisions motion, with instructions that ParkerVision should ask the Court to reactivate its motion after the claim construction rulingbut only if ParkerVision still wished to seek leave to serve supplemental infringement contentions. (See Dkt. 186) On February 20, 2013, the Court issued its claim construction ruling. (Dkt. 243.) ParkerVision has not asked the Court to reactivate its motion, nor has ParkerVision ever provided any infringement contentions for the products first accused in August 27, 2012. Nevertheless, on December 14, 2012, in connection with a discovery hearing, ParkerVision submitted a list of the products accused in this case to Magistrate Judge Morris. (Ex. 25.) The Atheros Products are on that list. On March 4, ParkerVision served a detailed expert report from Dr. Prucnal addressing the alleged infringement of the Patents-in-Suit by 71 Qualcomm products. (See Ex. 26.) The report does not mention any of the Atheros Products. Nor does ParkerVision include
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the Atheros products in its damages calculations. On April 5, Qualcomm served an expert report from Dr. Robert Fox addressing noninfringement. (See Ex. 27.) Dr. Fox opined that the Atheros Products, as well as the other accused products, do not infringe the Patents-in-Suit. In light of ParkerVisions complete failure to submit any evidence (or even contentions) regarding the alleged infringement by the Atheros Products, on May 17, 2013, counsel for Qualcomm sent counsel for ParkerVision a letter regarding the Atheros Products. In accordance with its counterclaims for declaratory relief, Qualcomm asked ParkerVision to stipulate to a judgment of noninfringement as to those products. (See Ex. 28.) In response, ParkerVision did not dispute that it had no evidence that the Atheros Products infringe. (See Ex. 29.) To date, however, ParkerVision has declined to stipulate to a judgment of noninfringement. Argument As detailed below, Qualcomm seeks partial summary judgment on three distinct issues. Summary judgment is appropriate where there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant bears the burden of establishing the absence of any genuine issue of material fact by demonstrating an absence of evidence to support the nonmoving partys case. Celotex, 477 U.S. at 325. Once the moving party makes this showing, the burden shifts to the non-moving party to rebut that showing by producing affidavits or other relevant and admissible evidence beyond the pleadings showing that there is a genuine issue for trial. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1314-15 (11th Cir. 2011) (citations and internal quotation marks omitted).

III.

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A.

ParkerVision Has Failed to Offer Any Evidenceor Even Contentionsthat the Atheros Products Infringe Any of the Patents-in-Suit. A patentee bears the burden of proving infringement. Ultra-Tex Surfaces Inc. v.

Hill Bros. Chem. Co., 204 F.3d 1360, 1364 (Fed. Cir. 2000). To do so, the patentee must establish that each limitation of the claim is met by the accused device. Lantech Inc. v. Keip Mach. Co., 32 F.3d 542, 547 (Fed. Cir. 1993). ParkerVision has submitted no evidence that the Atheros Products infringe.

1.

ParkerVision failed to submit the expert testimony required to prove infringement.

If the subject matter of an asserted patent is sufficiently complex to fall beyond the grasp of an ordinary layperson and if the defendant has provided an expert opinion of noninfringement, a plaintiff must provide expert testimony to meet its burden. Proveris Scientific Corp. v. Innovasystems, Inc., 536 F.3d 1256, 1267 (Fed. Cir. 2008); AquaTex Indus., Inc. v. Techniche Solutions, 479 F.3d 1320, 1329 n.7 (Fed. Cir. 2007); Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., 888 F.Supp.2d 637, 641 (W.D. Pa. 2012) (requiring expert testimony to establish infringement where Patents-in-Suit covered chip designs and defendant provided expert testimony of noninfringement); Centricut LLC v. Esab Grp., Inc., 390 F.3d 1361 (Fed. Cir. 2004) (requiring expert testimony if defendants presents expert testimony of noninfringement). This case involves complex technology relating to the design and operation of integrated circuits, as this Court has recognized. (Dkt. 162 at 2 (The Court, now having the benefit of the tutorial as well as the parties briefing and arguments related to claim construction, finds that a technical advisor would be a valuable asset to the Court given the complex and technical nature of the Patents-in-Suit.).) Accordingly, expert testimony was required.

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Moreover, Qualcomm offered unrebutted expert opinion testimony that refuted any claim that the Atheros Products infringe. Specifically, Qualcomm offered the expert opinion of Dr. Robert Fox that the Atheros Products did not infringe for three independent reasons. First, the Atheros products do not take discrete samples of energy from the carrier signal and do not use energy from the carrier signal to create the downconverted signal, and, therefore, do not perform the energy sampling that ParkerVisions expert admits relates to every asserted claim. (Ex. 27 at 266; Ex. 26 at 59; Ex. 30 at 107-08.) Second, the Atheros Products do not contain a storage module or element coupled to the output of the downconversion circuit as is requiredeither explicitly or inherentlyby all the asserted claims.5 (Ex. 27 at 267.) Third, the Atheros products do not use an aliasing rate of less than or equal to twice the frequency of the carrier signal as required by a large number of asserted claims.6 (Ex. 27 at 267-68.) Although ParkerVision submitted an expert report from Dr. Prucnal, that report failed to address the Atheros Products at all. Dr. Prucnals infringement report specifically names each of the products for which he conducted a detailed infringement analysis. (Ex. 26 at 113.) That listand the rest of his reportdoes not include the Atheros Products. Indeed, the report never even mentions the names or designations of any of the fourteen Atheros Products. At deposition, Dr. Prucnal confirmed that he has no intention of offering opinions at trial that Atheros Products infringe:
5 This element is required by (a) Claims 23-26, 31, 32, 135, 149, 150, 161, 192, 193, 198, 202 and 203 of the 551 Patent; (b) Claims 82, 90 and 91 of the 518 Patent; (c) claims 22, 23, 25 and 31 of the 371 Patent; (d) Claims 1, 4-6, 9 and 12-15 of the 734 Patent; (e) Claims 18-23 of the 342 Patent; and (f) Claims 5 and 6 of the 845 Patent.

Those claims include, at least, (a) Claims 1-3, 8, 9, 12, 20, 23-26, 31, 32, 39, 41, 50, 54, 55, 57, 92, 93, 108, 113, 126, 135, 149, 150, 161, 192, 193, 195, 196, 198, 202 and 203 of the 551 Patent; (b) Claims 1-3, 12, 17, 24, 27, 77, 81, 82, 90 and 91 of the 518 Patent; (c) Claims 1, 2, 22, 23, 25 and 31 of the 371 Patent; and (d) Claims 5 and 13 of the 734 Patent.
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Q. You have no intent to offer any opinion at trial that any Atheros products infringe any of the patents-in-suit, correct? A. My infringement opinion would be limited to whats in my report and the products that I list there. (Ex. 31 at 231-32.) As ParkerVision has not submitted the expert testimony required to raise a triable issue of fact as to the Atheros Products, summary judgment is required.

2.

ParkerVision has failed to submit any other evidence to support a claim of infringement as to the Atheros products.

Not only did ParkerVision fail to address the Atheros Products explicitly in its expert report, but ParkerVision failed to establish that its infringement contentions, analysis, or expert testimony of other Qualcomm products applies to the Atheros Products. Indeed, it could not do so. It is undisputed that, prior to 2011, Atheros was an independent company with no relationship to Qualcomm. (See Ex. 32 at 4.) Thus, its designs were entirely independent of Qualcomms designs. After the acquisition, Atheros products continue to use the same basic designs that Atheros developed prior to the acquisition by Qualcomm. (See Ex. 27 at 264.) As Qualcomms downconversion designs are different from Atheros downconversion designs, ParkerVision cannot fill the void in its expert reports by simply claiming that its contentions and opinions regarding the Qualcomm products apply equally to the Atheros Products. B. Qualcomm Is Entitled to Summary Judgment of No Pre-Suit Indirect Infringement for Four of the Six Asserted Patents.

1.

To prevail on indirect infringement, ParkerVision must prove that Qualcomm had knowledge of the asserted patents.

Unlike direct infringement, which imposes strict liability for infringing acts, indirect infringement7 requires proof that the defendant acted with a culpable mental state. [I]nduced infringement . . . requires knowledge that the induced acts constitute patent
Indirect infringement includes inducement (35 U.S.C. 271(b)) and contributory infringement (35 U.S.C. 271(c)).
7

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infringement. Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2068 (2011). Likewise, for contributory infringement, the patent owner must prove that the alleged contributory infringer knew that the combination for which his component was especially designed was both patented and infringing. Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488 (1964). As an initial prerequisite to meeting this difficult mental-state element, the patentee must prove that the accused infringer had knowledge of the asserted patent. DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1304 (Fed. Cir. 2006) (en banc in pertinent part) (inducement standard necessarily includes the requirement that [the accused infringer] knew of the patent); Fujitsu Ltd. v. Netgear, Inc., 620 F.3d 1321, 1326 (Fed. Cir. 2010) (patentee must prove that the accused contributory infringer had knowledge of the patent). To prove knowledge, the plaintiff must either present direct evidence that the accused infringer actually knew of the existence of the asserted patent or took steps to be willfully blind of such existence. Global-Tech Appliances, 131 S. Ct. at 2068-71. If the patentee fails to show pre-suit knowledge of an asserted patent, the patentee may not recover pre-suit damages for indirect infringement. E.g., Pacing Techs., LLC v. Garmin Intl, Inc., 12-CV-1067, 2013 WL 444642, at *2 (S.D. Cal. Feb. 5, 2013); Intellect Wireless Inc. v. Sharp Corp., 10 C 6763, 2012 WL 787051, at *11 (N.D. Ill. Mar. 9, 2012).

2.

ParkerVision cannot show that Qualcomm had pre-suit knowledge of four of the six asserted patents.

ParkerVision provides the entirety of its purported evidence of Qualcomms presuit knowledge in its infringement and damages expert reports.8 As detailed below, however,

The evidence of pre-suit knowledge relied on by ParkerVision is set forth in three paragraphs in the expert report of ParkerVisions damages expert, Paul Benoit (Ex. 33, 32-34) and just over two pages in the expert report of ParkerVisions infringement expert, Dr. Paul Prucnal (Ex. 26 at 119-121).
8

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none of the cited evidence raises a triable issue of fact for four of the six asserted patents: the 342, 734, 845, and 518 Patents.

(1)

The 342 Patent

As the sole proof of Qualcomms alleged knowledge of the 342 Patent, ParkerVisions experts assert that [t]he prosecution history of the 551 Patent includes references . . . to the Related Application Serial No. 10/972,133, which issued as the 342 Patent. (Ex. 33, 33; Ex. 26 at 120; Ex. 34 at 226:20-227:1.) The assertion, however, is simply incorrect. The prosecution history of the 551 Patent closed when the patent issued on May 9, 2000. (See Ex. 35; Ex. 33, 13.) The application that became the 342 Patent, however, was not filed until October 25, 2004. (Ex. 35.) Thus, the prosecution history of the 551 Patent could not have referenced the application of the 342 Patent.

(2)

The 734 and 845 Patents

ParkerVision has cited no evidence that Qualcomm was aware of either of these patents before this suit. (Ex. 33, 32-34; Ex. 26 at 119-121.) At his deposition, Mr. Benoit confirmed that he did not know of any evidence that Qualcomm had pre-suit knowledge of the patents. (Ex. 34 at 226:10-19.) See Zamora Radio, LLC v. Last.FM, Ltd., 758 F. Supp. 2d 1242, 125657 (S.D. Fla. 2010) (granting summary judgment of no inducement where plaintiff offered no evidence that Defendants had any pre-suit knowledge of the asserted patent).

(3)

The 518 Patent

To demonstrate Qualcomms alleged knowledge of the 518 Patent, ParkerVisions experts point to a copy of the prosecution history of the 551 Patent produced from the file of a Qualcomm employee. (Ex. 33, 33; Ex. 26 at 120; Ex. 34 at 225:25-226:9.) The experts assert that Qualcomm had knowledge of the 518 patent, because the 551 prosecution
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history contained references to the then pending Patent Application Serial No. 09/376,359 which issued as the 518 Patent. (Ex. 33, 33; Ex. 26 at 120.) This evidence fails to raise a triable issue of fact, because knowledge of a patent application is insufficient as a matter of law to establish knowledge of the later-issued patent. See McRee v. Goldman, 11-CV-00991-LHK, 2012 WL 3745190, at *3 (N.D. Cal. Aug. 28, 2012) ([M]ere knowledge of a pending patent application . . . does not give rise to liability for inducement under 271(b).dismissing induced infringement claim with prejudice). As the Vasudevan Software court held, knowledge of the [asserted patents] existence was quite impossible before it issued, and there is no indication . . . how [the accused infringer] may have later discovered it. Vasudevan Software, Inc. v. TIBCO Software Inc., No. C 11-6638 RS, 2012 WL 1831543, at *2 (N.D. Cal. May 18, 2012). Similarly here, Qualcomm could not have had actual knowledge of the 518 patent before it existed, and ParkerVision has cited no evidence that Qualcomm otherwise learned of the 518 patent after it issued.

3. (1)

ParkerVisions other evidence does not raise a triable issue of fact. The 1998 to 1999 meetings between Qualcomm and ParkerVision do not show pre-suit knowledge.

ParkerVisions technical expert, Dr. Prucnal, asserts that Qualcomm has had knowledge of the Patents-in-Suit since at least May 26, 1999, when Jeff Parker and David Sorrells [of ParkerVision] met with Ben Miller and Charles Wheatley of Qualcomm to present ParkerVisions patent filings. (Ex. 26 at 119; see also Ex. 33, 32.) Dr. Prucnal also relies on the testimony of Prashant Kantak that, in the 1998 to mid-1999 timeframe, he was aware that [ParkerVision] w[as] in the process of filing patents. (Ex. 26 at 119.) These assertions cannot establish actual knowledge of the specific patents at issue in this motion, because none of those patents issued before July 2001. (See Ex. 35; Ex. 33,
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15, 20, 23, 26.) As noted above, an accused infringer cannot have actual knowledge of a patent that has not yet issued. McRee v. Goldman, 2012 WL 3745190, at *3; see also Vasudevan Software, 2012 WL 1831543, at *2; id. at *6 ([M]ere knowledge of a pending patent application is of little significance given the prospect that a patent may not ever be issued, or, if issued, be altered or narrowed in scope.). These facts also fail as a matter of law to raise a triable issue of fact on willful blindness. In Global-Tech, the Supreme Court recognized the high bar for proving willful blindness: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact. GlobalTech Appliances, 131 S. Ct. at 2070. This standard gives willful blindness an appropriately limited scope that surpasses recklessness and negligence. Id. Here, ParkerVision cannot meet either prong of the willful blindness test. ParkerVision has no evidence showing a high probability that the patents addressed by this motion would have been filed, issued, or asserted against Qualcomm. The 1998-1999 meetings did not involve any of the applications that led to the issuance of the patents at issue in this motion. (Ex. 36 at PV00184933.) Nor did Qualcomm have any reason to guess that ParkerVision might file other applications reciting the specific claims in the patents addressed by this motion. Likewise for the second prong, ParkerVision has not presented any evidence that Qualcomm took deliberate actions to avoid learning of any ParkerVision patents. See Vasudevan Software, 2012 WL 1831543, at *5-6; Apeldyn Corp. v. AU Optronics Corp., 831 F. Supp. 2d 817, 831 (D. Del. 2011) (granting summary judgment of no inducement despite evidence that accused infringer could have, but did not, monitor competitors patents[a]t best, [the patentee] has framed [the accused infringer] as a reckless or negligent defendant not a willfully deliberate one).
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(2)

ParkerVisions speculation from the Persico testimony does not preclude summary judgment.

Finally, Dr. Prucnal asserts that Charles Persico testified that he was at least aware of ParkerVisions patents three or four years ago. (Ex. 26 at 120-21.) The testimony cited by Dr. Prucnal, however, is equivocal and unrelated to the specific patents at issue in this motion. Mr. Persico testified only that he saw that ParkerVision was referencing my patents, he didnt look at any of the detail, and he did not look at any of the claims of any ParkerVision patent. (Ex. 37 at 122:21-124:9.) The testimony Dr. Prucnal relies on, therefore, does not provide any basis to infer that Qualcomm had knowledge of the specific patents at issue in this motion. See Chalumeau Power Sys. LLC v. Alcatel-Lucent, No. 11-1175-RGA, 2012 WL 6968938, at *1 (D. Del. July 18, 2012) (rejecting theory that accused infringer might have learned of patent as a result of suit filed against a different defendant as unduly speculative); Pacing Techs., 2013 WL 444642, at *2 (rejecting inferences from accused defendants research and development practices as too speculative to support a reasonable inference that [it] knew of the patent prior to commencement of this suit).

4.

Because Qualcomm lacked pre-suit knowledge, the Court should grant partial summary judgment of no pre-suit indirect infringement.

As shown above, ParkerVision has failed to adduce evidence of Qualcomms presuit knowledge of the 342, 734, 845, and 518 Patents. ParkerVision first alleged indirect infringement of the 342, 845, and 518 Patents on July 20, 2011 in its Complaint. (Dkt. 1.) ParkerVision first accused Qualcomm of infringing the 734 Patent on January 30, 2012. (Ex. 24.) Accordingly, Qualcomm respectfully requests the Court grant partial summary judgment of (1) no indirect infringement for the 342, 845, and 518 Patents prior to July 20, 2011; and (2) no indirect infringement for the 734 Patent prior to January 30, 2012.

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C.

Qualcomm is Entitled to Summary Judgment that Its 50% Duty Cycle Products Do Not Infringe the Patents-in-Suit. Based on testimony from ParkerVisions expert, Qualcomm is entitled to

summary judgment that its passive mixer products that use a 50% duty cycle (the 50% Duty Cycle Products) do not infringe the Patents-in-Suit.9 ParkerVision and its technical expert, Dr. Prucnal, have taken the position that the Patents-in-Suit require the discharge of energy from a storage device, i.e., a capacitor. Qualcomms 50% Duty Cycle Products connect two switches to each storage capacitor. For 50% of the time, one switch is closed and providing charge to the capacitor. For the other 50% of the time, the other switch is closed and providing charge to the capacitor. Thus, although each switch is closed for only about 50% of the time, the capacitor is always being charged. At his deposition, Dr. Prucnal admitted that in an ideal 50% duty cycle product where each switch is closed and providing charge for exactly 50% of the time there is no discharge of energy from the capacitor. ParkerVision advances no proof that Qualcomms 50% Duty Cycle Products discharge energy from its capacitors and it is indisputable that the switches in Qualcomms 50% Duty Cycle Products are each closed for at least 50% of each frequency cycle. Those products cannot infringe.

1.

All asserted claims require discharge of energy from a storage device.

Dr. Prucnal asserts that ParkerVisions invention is energy sampling. (Ex. 26 at 44-53.) In Dr. Prucnals view, energy sampling requires first transferring and accumulating

9 The 50% Duty Cycle Products are BTS4020, BTS4020BD, BTS4021, BTS4050, BTS4051, BTS4052, BTS4054, BTS4055, BTS5045, BTS4025, FTR8700, MBP1600, MBP1610, MBP2600, MBP2700, MDM6085, MXC6369, MXU6219, QSC6055, QSC6065, QSC6075, QSC6085, RGR1000, RGR1100, RGR6240, RTR6236, RTR6237, RTR6280, RTR6285, RTR6285A, RTR6500, RTR8700, WCN1312, WCN1314, WCN1320, WCN2243, WCN3660, and the Bluetooth portions of the following products: QSC6155, QSC6165, QSC6175, QSC6185, QSC6195, QSC6295, QSC6695, QTR8200, QTR8201, QTR8600, QTR8600L and QTR8601.

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energy from the modulated carrier signal onto a storage element such as a capacitor. (Id. at 45.) Dr. Prucnal illustrates this concept through the use of the diagram below.

According to Dr. Prucnal, energy is transferred from the modulated carrier signal, which enters the device at the antenna, to the Large Storage Device (the capacitor) when the switch (the gate-like structure inside the box labeled Energy Sampler) is closed. (Id.) Critically, it is Dr. Prucnals opinion that [w]hen the switch opens, part of the accumulated non-negligible energy in the capacitor is transferred to the load impedance which is the impedance of the next stage of the receiver circuit. (Id. at 45.) In other words, in energy sampling, when the switch opens, energy is discharged from the Large Storage Device. Dr. Prucnal has opined that at least one element in all but one of the asserted independent claims requires this discharge of energy out of a storage device. (See, e.g., Ex. 30 at 33-34, 64-65, 80-81.) The only asserted independent claim Dr. Prucnal has not opined includes a limitation requiring discharge of energy from a storage device is Claim 13 of the 845 Patent. (Id.)

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2.

Dr. Prucnal has admitted that products which employ a 50% duty cycle do not discharge energy from a storage device.

Mixers in receivers can operate at different duty cycles. A duty cycle is that amount of time each switch in the mixer is closed during the course of one complete cycle or period of the carrier signal. The accused devices use either a 25% or 50% duty cycle. In an ideal 50% duty cycle product, each switch is closed for exactly half of each cycle of the carrier signal. At his deposition, Dr. Prucnal testified about the following illustration of Qualcomms 50% Duty Cycle Products that appears in the expert report of Qualcomms non-infringement expert, Dr. Fox. The handwriting is Dr. Prucnals.

(Ex. 38 at 89.) In this diagram, Dr. Prucnal circled three structures two switches M1 and M3 and a capacitor to the right of them (indicated by the two parallel lines). Dr. Prucnal admitted during his deposition that both switches M1 and M3 are connected to and, in his opinion, transfer energy to the circled capacitor. (Ex. 31 at 221:21-25.) He also admitted that in an ideal 50% duty cycle product at all times during each cycle of the carrier signal either switch
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M1 or switch M3 will be closed and therefore transferring energy to the capacitor. (Id. at 223, lines 4-14.; 224, line 24 225, line 7.) Dr. Prucnal was clear that in such circumstance no energy is discharged from the capacitor: But in the ideal case, one is 50 percent duty cycle and they both go to one capacitor because there is always current flowing from one or the other [switch] into the capacitor, I cant say that there is discharging. (Id. at 230, lines 1-5.) Dr. Prucnal's statement that I cant say there is discharging is a candid admission that he cannot opine that the relevant circuits infringe.

3.

Qualcomms 50% duty cycle products do not discharge energy from a storage device.

ParkerVision does not dispute that all of Qualcomms 50% Duty Cycle Products have the same basic structure set out in the diagram above, where each capacitor is connected to two switches.10 (Ex. 31 at 226-230.) ParkerVision also does not dispute that both switches provide charge to the capacitor during each cycle of the carrier signal. (Ex. 31 at 221.) The only issue is whether at least one of the two switches connected to each capacitor in Qualcomms 50% Duty Cycle products is closed at all times during one cycle of the carrier signal as happens with an ideal 50% duty cycle. If the answer to that question is yes, then as Dr. Prucnal admitted, no energy is discharged from the capacitor and the asserted claims that require such discharge are not infringed. In actual operation, the switches in Qualcomms 50% Duty Cycle Products are each closed and providing a charge to the capacitor for more than 50% of each cycle of the carrier signal. ParkerVision and Dr. Prucnal have not advanced any evidence that the switches in Qualcomms 50% Duty Cycle Products are closed for less than 50% of each cycle. Dr. Prucnal
Some 50%Duty Cycle Products do not have a capacitor at the output of the switches, but are alleged by Dr. Prucnal to have one. For the purpose of this motion, Qualcomm will adopt Dr. Prucnals position. Dr. Prucnal presents no argument that a product can infringe without such capacitor.
10

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admitted that he did not model what happens to the charging and discharging of the capacitors in the 50% Duty Cycle Products when both switches M1 and M3 are considered. (Ex. 31 at 228-229.) He testified, with reference to the diagram above, that he only modeled the operation of one switch M1, even though he admitted that both switches M1 and M3 are providing charge to the capacitor. (Id.) This failure of proof alone is sufficient to grant Qualcomm summary judgment. However, Qualcomm documents made available to ParkerVision in discovery indisputably establish that each of the 50% Duty Cycle Products employs a duty cycle where each switch is closed and providing a charge for more than 50% of the time. For example, the timing diagram below for the circuit design known as GZIF411 illustrates the pairs of LO control signals used to control paired switches such as M1 and M3:12

11 The GZIF4 circuit design is found in the following 50% Duty Cycle Products: MXU6219, RGR1000, RGR1100, RTR6236, RTR6237, RTR6280, RTR6285, and RTR6285A

See Ex. 39 at QCPV000007891; see also Ex. 40 at QCPV000105059-60, 62-63; Ex. 39 at QCPV000007872 (stating that the LO buffer made for the circuit design known as Voltron and Ramsis was reused in GZIF4); Ex. 41 at QCPV000373563-65; Ex. 42 at QCPV000141579-80. The Voltron circuit design is found in the following 50% Duty Cycle Products: RTR6500 and MXC6369. The Ramsis circuit design is found in the following 50% Duty Cycle Products: QSC6055, QSC6065, QSC6075, QSC6085, and MDM6085.
12

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This is exactly the situation in which Dr. Prucnal admitted he cant say that there is discharging. (Ex. 31 at 230:1-5.) Unlike ParkerVisions expert, Qualcomms expert Dr. Fox accurately recognized in his report how the 50% Duty Cycle Products work and analyzed the effect both switches have on the capacitor to which they are connected. Based on this analysis, Dr. Fox opined that none of the 50% Duty Cycle products have a discharge cycle. (See, e.g., Ex. 21 at 199-204.) Dr. Foxs opinions in this regard are unrebutted and provide further grounds for granting summary judgment of non-infringement. Conclusion For the reasons set forth above, Qualcomm respectfully requests that the Court enter judgment against ParkerVision:

IV.

(1)

On ParkerVisions claims that the Atheros Products (as defined herein) infringe any asserted claims, and on Qualcomms counterclaim seeking a declaration that such products do not infringe; On ParkerVisions claims of induced and contributory infringement of the 342, 845, and 518 patents, for the period prior to July 20, 2011, and of the 734 Patent for the period prior to January 30, 2012; On ParkerVisions claims that the 50% Duty Cycle Products (as defined herein) infringe any asserted claim, and on Qualcomms counterclaim seeking a declaration that such products do not infringe.

(2)

(3)

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May 22, 2013 CRAVATH, SWAINE & MOORE LLP

By:

s/ Keith R. Hummel Keith R. Hummel (admitted pro hac vice) khummel@cravath.com David Greenwald (admitted pro hac vice) dgreenwald@cravath.com Worldwide Plaza 825 Eighth Avenue New York, New York 10019 Telephone: (212) 474-1000 Facsimile: (212) 474-3700 -and-

COOLEY LLP Stephen C. Neal (admitted pro hac vice) nealsc@cooley.com Timothy S. Teter (admitted pro hac vice) teterts@cooley.com Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306-2155 Telephone: (650) 843-5182 Facsimile: (650) 849-7400 -andBEDELL, DITTMAR, DEVAULT, PILLANS & COXE, P.A. John A. DeVault, III Florida Bar No. 103979 jad@bedellfirm.com Courtney K. Grimm Florida Bar No. 953740 cgrimm@bedellfirm.com The Bedell Building 101 East Adams Street Jacksonville, Florida 32202 Telephone: (904) 353-0211 Facsimile: (904) 353-9307 Counsel for Defendant Qualcomm Incorporated

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 22nd day of May, 2013, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to all counsel of record.

s/ Keith R. Hummel Keith R. Hummel (admitted pro hac vice) khummel@cravath.com Worldwide Plaza 825 Eighth Avenue New York, New York 10019 Telephone: (212) 474-1000 Facsimile: (212) 474-3700 Attorney for Defendant Qualcomm Incorporated

1131516/HN

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