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28 WI-LAN’S TRIAL BRIEF Case No. 3:14-cv-01507-DMS-BLM
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1 TABLE OF CONTENTS
2 PAGE
3 I. INTRODUCTION ...............................................................................................................1
4 II. DISPUTED ISSUES ............................................................................................................2
5 A. Apple Has Willfully Infringed the Patents-in-Suit ..................................................2
6 1. Apple Directly Infringes the Asserted Claims of the ’145 Patent ...............2
7 2. Apple Directly Infringes the Asserted Claim of the ’757 Patent .................4
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1 TABLE OF AUTHORITIES
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Page(s)
3 CASES
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1 Pursuant to Local Rule 16.1(f)(9)(a) and paragraph 7 of the Court’s June 22,
2 2018 Order Regarding Trial [ECF No. 398], Plaintiff Wi-LAN Inc. (“Wi-LAN”)
3 respectfully submits this trial brief.
4 I. INTRODUCTION
5 Wi-LAN is the sole owner of U.S. Patent Nos. 8,457,145 (“’145 Patent”)
6 and 8,537,757 (“’757 Patent”) (collectively, the “patents-in-suit”). The patents-in-
7 suit relate to wireless technologies that originated in work by Ken Stanwood, Wi-
8 LAN’s Chief Technology Officer (CTO) and inventor on all patents-in-suit. He
9 developed these technologies with a team at Ensemble Communications, where he
10 served as CTO prior to joining Wi-LAN. Ensemble was a San Diego product
11 company founded in the late 1990s as a start-up that Mr. Stanwood helped grow to
12 over 200 engineers, scientists, and support personnel. Wi-LAN and Ensemble
13 worked together to extend the capabilities of Wi-LAN’s pioneering Wideband
14 OFDM technology. In 2004, Wi-LAN began acquiring Ensemble’s assets and
15 engineers.
16 In this trial, Wi-LAN will demonstrate that Defendant Apple, Inc. (“Apple”)
17 has willfully infringed the asserted claims 1 of the patents-in-suit by making, using,
18 selling, offering for sale, and importing into the United States the accused voice-
19 over-LTE (“VoLTE”) iPhones. Wi-LAN will also establish that it is entitled to a
20 reasonable royalty on Apple’s sales of the accused iPhones (iPhone 6, iPhone 6
21 Plus, iPhone SE, iPhone 6s, iPhone 6s Plus iPhone 7, iPhone 7 Plus). Finally, Wi-
22 LAN will establish that Apple’s infringement was and continues to be willful.
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1
The asserted claims are claims 9, 26 and 27 of the ’145 patent and claim 1 of the
’757 patent.
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3 Through this
4 and other evidence, Wi-LAN will demonstrate that Apple knew or was willfully
5 blind to the knowledge that it induced its customers to infringe the ’145 and ’757
6 Patents.
7 4. Apple’s Infringement is Willful
8 To prove Apple has willfully infringed any of the asserted claims of the
9 patents-in-suit, Wi-LAN must demonstrate by a preponderance of the evidence that
10 (1) Apple had knowledge of each of the patents-in-suit and (2) Apple subjectively
11 intended to infringe the patents-in-suit because it knew or should have known that
12 its actions constituted an unjustifiably high risk of infringement. See Halo Elecs.,
13 Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1933-34 (2016); Arctic Cat Inc. v.
14 Bombardier Rec. Prods., 876 F.3d 1350, 1371 (Fed. Cir. 2017).
15 At trial, Wi-LAN will demonstrate by a preponderance of the evidence that
16 that Apple knew of Wi-LAN’s patents and intentionally infringed them. Although
17 Apple may argue that it obtained a judgment of noninfringement in a prior lawsuit
18 between Apple and Wi-LAN, that lawsuit involved a different set of patents from
19 the patents asserted here. That lawsuit also involved different products designed
20 without VoLTE functionality. That judgment could not have provided a
21 reasonable basis for Apple to conclude its new VoLTE iPhones did not infringe
22 these patents.
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17 . Wi-LAN
18 will also seek an accounting for damages due to any infringing sales from trial
19 forward, and will seek pre-judgment and post-judgment interest on any damages
20 award.
21 To determine the damages owed to Wi-LAN, Mr. Kennedy will testify that
22 he applied the factors from Georgia-Pacific and considered the outcome of a
23 hypothetical negotiation.
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6 .
7 Second, Mr. Kennedy will show how his infrastructure analysis supports
8 this per-unit royalty rate. Mr. Kennedy’s infrastructure analysis measures the cost
9 of the additional network resources required to counter the decreased speed of
10 iPhones if Apple had to remove its infringing technology from its iPhones.
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1 PROOF OF SERVICE
2 I hereby certify that on July 16, 2018, I caused a copy of this pleading to be
3 delivered via CM/ECF on the counsel of record.
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