**United States Court of Appeals for the Federal Circuit**

03-1197, -1255

TYPERIGHT KEYBOARD CORPORATION,

> Plaintiff-Appellant,

v\.

MICROSOFT CORPORATION,

> Defendant-Cross Appellant.

[Matthew V. Herron]{.underline}, Meisenheimer Herron & Steele, of San
Diego, California, argued for plaintiff-appellant.

[John E. Gartman]{.underline}, Fish & Richardson P.C., of San Diego,
California, argued for defendant-cross appellant. With him on the brief
was [Lauren A. Degnan]{.underline}, of Washington, DC. Of counsel was
[Dina Grinshpun]{.underline}, of San Diego, California.

Appealed from: United States District Court for the Southern District of
California

Judge Irma E. Gonzalez

**United States Court of Appeals for the Federal Circuit**

03-1197, -1255

# TYPERIGHT KEYBOARD CORPORATION,

Plaintiff-Appellant,

v\.

MICROSOFT CORPORATION,

Defendant-Cross Appellant.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DECIDED: July 6, 2004

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before LOURIE, SCHALL and DYK, [Circuit Judges]{.underline}.

DYK, [Circuit Judge]{.underline}.

Appellant TypeRight Keyboard Corporation ("TypeRight") appeals the
decision of the United States District Court for the Southern District
of California granting Microsoft Corporation ("Microsoft") summary
judgment of invalidity of U.S. Patent Nos. 5,372,441 (the "'441 patent")
and 5,503,484 (the "'484 patent"). [TypeRight Keyboard Corp. v.
Microsoft Corp.]{.underline}, No. 98-CIV-1358-IEG (S.D. Cal. July 2,
2002). Microsoft cross-appeals from the district court's dismissal
without prejudice of its claims for non-infringement. [TypeRight
Keyboard Corp. v. Microsoft Corp.]{.underline}, No. 98-1358-IEG (S.D.
Cal. Nov. 19, 2002). We dismiss the cross-appeal for lack of
jurisdiction, reverse the summary judgment of invalidity, and remand for
further proceedings.

BACKGROUND

TypeRight is the owner of the '441 and '484 patents, which generally
describe ergonomic keyboards featuring v-shaped designs with separate
right- and left-hand key clusters; keys arranged in a QWERTY
configuration;[^1] and a wrist rest. The '441 and '484 patents are both
continuations of United States Application No. 990,021, filed December
14, 1992, which is itself a continuation-in-part of an earlier
application filed on February 21, 1991. The parties appear to assume
that the '441 and '484 patents claim priority to February 21, 1991, and
that February 21, 1990, is the critical date for the patents in suit.

On July 23, 1998, TypeRight filed a complaint against Microsoft alleging
that Microsoft's line of ergonomic keyboards infringed several of
TypeRight's patents, including the '441 and '484 patents. Microsoft
responded by asserting affirmative defenses and counterclaims for
non-infringement, invalidity and unenforceability. Following the
district court's [Markman]{.underline} order construing the claims,
TypeRight amended its complaint to assert infringement of only claims 11
and 12 of the '441 patent and claims 1-11 of the '484 patent.

On August 31, 1999, Microsoft filed motions for summary judgment of
non-infringement and invalidity. In regard to invalidity, Microsoft
argued that all of the asserted claims were obvious in light of the
prior art, relying primarily on a one-page document ("the Marquardt
document") created by the German company Marquardt GmbH ("Marquardt").
Microsoft additionally relied on a prior art keyboard and a book,
[Keyboard RSI: The Practical Solution]{.underline}, by Barbara Stack
(the "Stack reference"), which taught that v-shaped keyboards "are . . .
ergonomically acceptable provided they are used . . . in conjunction
with a properly designed attached wrist support" to show that the
asserted claims were obvious. (J.A. at 3553.)

The Marquardt document features several, unlabeled pictures of v-shaped
keyboards with separate right and left-hand key clusters in the German
equivalent of a QWERTY configuration. It is a single page in length and
is not dated. TypeRight claims to have first learned of the document's
existence during depositions conducted by Microsoft in Germany.

Because the Marquardt document was undated, Microsoft sought to prove
that it was prior art under 35 U.S.C. § 102(b), [i.e.]{.underline}, that
it was publicly accessible prior to February 21, 1990. For this purpose
Microsoft offered fact testimony of several consultants who were paid
for the time they spent testifying. The first was Dr. Cakir who
testified that he found the Marquardt document in his "files from the
year 1990," but remembered receiving the document at a trade show in
Germany he attended in 1986. (J.A. at 700.) Another of Microsoft's
consultants, Dr. Hirsch, testified that he attended the same 1986 trade
show and remembered that photographs similar to the Marquardt document
were being distributed to the attendees. Additionally, Microsoft relied
on a 1986 report prepared by the Fraunhofer Institute for Industrial
Science and Organization ("the Fraunhofer report") for Marquardt.
Although Microsoft did not introduce a translated copy of the Fraunhofer
report, it argued that the pictures contained therein displaying
v-shaped keyboards similar to those shown in the Marquardt document
corroborated Mr. Cakir's testimony. Dr. Ilg, who prepared the Fraunhofer
report, testified that the report featured pictures of wooden prototypes
of the Marquardt keyboards and that these prototypes were displayed at
the 1986 trade show where Dr. Cakir allegedly acquired a publicly
distributed copy of the Marquardt document. None of Microsoft's experts
was a current or former employee of Marquardt, and no evidence obtained
from Marquardt itself was offered to prove a publication date for the
Marquardt document.

TypeRight responded to Microsoft's motion for summary judgment, arguing,
[inter]{.underline} [alia]{.underline}, (1) that the testimony of Dr.
Cakir as to the date of the Marquardt document was not sufficiently
corroborated by the testimony of Microsoft's other witnesses and the
Fraunhofer report; (2) that the testimony of Microsoft's witnesses as to
the date of the document was not credible; and (3) that there was no
suggestion to combine the alleged prior art.[^2] The district court
rejected these arguments and orally granted Microsoft's motion for
summary judgment of invalidity on June 19, 2000. The court declined to
rule on Microsoft's motion for summary judgment of non-infringement and
denied the motion for summary judgment of inequitable conduct.

Final judgment was entered June 22, 2000. On July 6, 2000, Microsoft
filed an application pursuant to Federal Rule of Civil Procedure
60(b)(1), seeking to vacate the entry of final judgment because, as it
argued, its counterclaims for non-infringement and inequitable conduct
remained pending. On July 25, 2000, the district court granted
Microsoft's Rule 60(b) application and vacated the final judgment.[^3]
Subsequently, Microsoft filed a renewed motion for summary judgment of
non-infringement that the court denied on March 28, 2002. [TypeRight
Keyboard Corp. v. Microsoft Corp.]{.underline}, No. 98-1358-IEG (S.D.
Cal. Mar. 28, 2002). On November 19, 2001, TypeRight filed a motion for
reconsideration of the summary judgment of invalidity, arguing amongst
other things, that the district court failed to make sufficient findings
to show obviousness under the [Graham]{.underline} factors. The district
court granted this motion in part "for the limited purpose of making . .
. supplemental [Graham]{.underline} findings" related to a motivation to
combine, and affirmed the earlier grant of summary judgment of
invalidity. [TypeRight Keyboard Corp. v. Microsoft Corp.]{.underline},
No. 98-CV-1358-IEG, slip op. at 27 (S.D. Cal. July 2, 2002). On November
19, 2002, the court certified the decision on invalidity pursuant to
Federal Rule of Civil Procedure 54(b) and dismissed without prejudice
Microsoft's counterclaims for inequitable conduct and non-infringement.
[TypeRight Keyboard Corp. v. Microsoft Corp.]{.underline}, No.
98-1358-IEG (S.D. Cal. Nov. 19, 2002).

TypeRight timely appealed the judgment of invalidity, and Microsoft
cross-appealed from the district court's dismissal of its counterclaim
for non-infringement. The inequitable conduct issue has not been raised
on appeal, and the only ground for invalidity before this court is
obviousness. Prior to argument, TypeRight moved to dismiss the
cross-appeal for lack of jurisdiction. This motion was denied by order
on April 30, 2003. [TypeRight Keyboard Corp. v. Microsoft
Corp.]{.underline}, No. 03-1197, -1255 (Fed. Cir. Apr. 30, 2003)
("[TypeRight II]{.underline}").

DISCUSSION

I

We are obligated first to consider the question of jurisdiction. Our
jurisdiction over the main appeal is clear under 28 U.S.C. § 1295(a)(1),
but we conclude that we lack jurisdiction over Microsoft's cross-appeal.

A party that is not adversely affected by a judgment lacks standing to
appeal. [Pub. Serv. Comm'n v. Brashear Freight Lines, Inc.]{.underline},
306 U.S. 204, 206 (1939); [see also]{.underline} [Gunn v. Univ. Comm. to
End the War in Viet Nam]{.underline}, 399 U.S. 383, 390 n.5 (1970);
[Jamesbury Corp. v. Litton Indus. Prods., Inc.]{.underline}, 839 F.2d
1544, 1550 (Fed. Cir. 1988), [overruled in part on other grounds
by]{.underline} [A.C. Aukerman Co. v. R.L. Chaides Constr.
Co.]{.underline}, 960 F.2d 1020, 1038-39 (Fed. Cir. 1992)
([en]{.underline} [banc]{.underline}). Where the appellant lacks
standing, we lack jurisdiction to decide the appeal. [Pub. Serv.
Comm'n]{.underline}, 306 U.S. at 207; [see also]{.underline} [Diamond v.
Charles]{.underline}, 476 U.S. 54, 71 (1986). The same rules necessarily
apply to cross-appeals.

In its cross-appeal here, Microsoft argues that the accused keyboards do
not infringe because they are within the scope of subject matter
disclaimed during prosecution of TypeRight's patents. But, since the
district court held that all of the asserted claims are invalid, this
cross-appeal for a declaration of non-infringement is improper. A party
may "cross-appeal if adversely affected by the appealed judgment in some
particular which it seeks to have modified." [Beloit Corp. v. Valmet
Oy]{.underline}, 742 F.2d 1421, 1424 (Fed. Cir. 1984); [see
also]{.underline} [Jamesbury]{.underline}, 839 F.2d at 1550 (holding
that because the defendant was not adversely affected, the denial of a
directed verdict of laches could not have been cross-appealed in a
previous challenge to the district court's judgment of invalidity). As
our decision in [Bailey v. Dart Container Corp. of
Michigan]{.underline}, 292 F.3d 1360 (Fed. Cir. 2002), makes clear,
"\[i\]t is only necessary and appropriate to file a cross-appeal when a
party seeks to enlarge its own rights under the judgment or to lessen
the rights of its adversary under the judgment." [Id.]{.underline} at
1362. Thus, a cross-appeal is proper only when acceptance of the
argument advanced "would result in a reversal or modification of the
judgment rather than an affirmance." [Id.]{.underline} Where, as here,
the district court has entered a judgment of invalidity as to all of the
asserted claims, there is no basis for a cross-appeal as to either (1)
additional claims for invalidity or (2) claims of non-infringement. As
we held in [Weatherchem Corp. v. J.L. Clark, Inc.]{.underline}, 163 F.3d
1326 (Fed. Cir. 1998), a judgment "that claims are invalid eliminates,
as a practical matter, the need to consider on appeal whether those
claims are infringed, even if the accused infringer has filed a
counterclaim for a declaratory judgment of noninfringement."
[Id.]{.underline} at 1335. Therefore, although a judgment of
non-infringement does not necessarily moot validity issues on appeal,
[Cardinal Chem. Co. v. Morton Int'l, Inc.]{.underline}, 508 U.S. 83, 98
(1993), a judgment of invalidity necessarily moots the issue of
infringement, [see, e.g.]{.underline}, [Sandt Tech., Ltd. v. Resco Metal
& Plastics Corp.]{.underline}, 264 F.3d 1344, 1356 (Fed. Cir. 2001);
[Weatherchem]{.underline}, 163 F.3d at 1335. This is because "a
determination of infringement applies only to a specific accused product
or process," whereas "invalidity operates as a complete defense to
infringement for any product, forever." [Weatherchem]{.underline}, 163
F.3d at 1335-36.

Because Microsoft's rights under the judgment of invalidity are actually
broader than its rights would be under a judgment of non-infringement,
Microsoft has not been adversely affected by the district court's
judgment.[^4] Because there is no jurisdiction for the cross-appeal, we
dismiss the cross-appeal; order that the surreply brief be stricken; and
treat Microsoft's arguments in support of its cross-appeal as an
alternate ground for affirming the district court's judgment.[^5]

II

We turn now to the merits of the main appeal. We review the district
court's grant of summary judgment without deference. [Scanner Techs.
Corp. v. ICOS Vision Sys. Corp., N.V.]{.underline}, 365 F.3d 1299, 1302
(Fed. Cir. 2004). The party seeking to invalidate the patent must do so
by clear and convincing evidence. [Norian Corp. v. Stryker
Corp.]{.underline}, 363 F.3d 1321, 1326 (Fed. Cir. 2004). Whether a
reference was published prior to the critical date, and is therefore
prior art, is a question of law based on underlying fact questions. [N.
Telecom, Inc. v. Datapoint Corp.]{.underline}, 908 F.2d 931, 936 (Fed.
Cir. 1990). While this is a close case, we conclude that summary
judgment of invalidity was improperly granted and that a trial is
necessary to determine whether the testimony offered by Microsoft to
prove that the Marquardt document was prior art is credible.

The district court granted summary judgment of obviousness relying on
the testimony of Microsoft's witnesses to establish that the Marquardt
document was distributed at a German trade show in 1986 and thus was
prior art. We agree that such a distribution would constitute a
publication under 35 U.S.C. § 102(b). [See]{.underline} [Mass. Inst. of
Tech. v. AB Fortia]{.underline}, 774 F.2d 1104, 1109 (Fed. Cir. 1985)
(holding that a paper that was orally presented and distributed without
restriction to six people constituted a "printed publication" under
section 102(b)). But, we conclude that summary judgment was improper
because genuine issues remain as to the credibility of Microsoft's
witnesses' testimony that the Marquardt document was publicly
distributed in 1986.

TypeRight points to a number of facts that raise doubts as to the
credibility of the proffered evidence. First, the Marquardt document
itself is undated and was discovered in a file dated 1990, rather than
1986. Second, the testimony of Drs. Cakir and Hirsch relates to events
that allegedly occurred over 18 years ago. The long lapse of time
suggests possible faulty recollection. Third, the testimony itself is
somewhat tentative. Dr. Hirsch testified only that he remembered seeing
photographs "similar" to the Marquardt document being distributed at the
1986 trade show. (J.A. at 715-16.) When asked if the Marquardt document
was handed out at the 1986 trade show, Dr. Cakir responded, "I think so,
yes." (J.A. at 702.)[^6] Dr. Cakir also testified that "\[t\]he actual
photograph is in my files, and [these are files from the year 1990, and
the date is -- when it comes into our files]{.underline}, it is the
latest date when we have received the document." (J.A. at 700) (emphasis
added). No explanation was offered for the discrepancy in the file date.
Fourth, Dr. Cakir testified it would be possible to "find out exactly
the date when th\[e\] document was issued" using "the Marquardt number"
printed on the document, (J.A. at 1368), but there is no evidence that
he contacted Marquardt to determine whether his recollection was
correct. Fifth, the fact that Marquardt filed two patent applications in
1991 for similar keyboards (which arguably would not have been proper if
the Marquardt document was publicly distributed in 1986) tends to
support TypeRight's theory that the Marquardt document was not created
until several years after the 1986 trade show.[^7] Finally, Drs. Cakir
and Hirsch, who testified as fact witnesses (not as experts), both
received compensation from Microsoft for their time spent testifying,
and Dr. Cakir had previously served as a paid consultant to Microsoft.

Under such circumstances summary judgment should not have been granted,
particularly in view of the clear and convincing evidence standard
required for invalidity. Summary judgment should not be denied simply
because the opposing party asserts that the movant's witnesses are not
to be believed. However, summary judgment is not appropriate where the
opposing party offers specific facts that call into question the
credibility of the movant's witnesses. [See]{.underline} [Sartor v. Ark.
Natural Gas Corp.]{.underline}, 321 U.S. 620, 628-29 (1944) (reversing
summary judgment where the only evidence in support of the movant's
contention was the testimony of its experts and there were specific
bases for doubting the credibility of that testimony); 10A Charles Alan
Wright et al., [Federal Practice & Procedure]{.underline} § 2726, at 446
(3d ed. 1998) ("\[I\]f the credibility of the movant's witnesses is
challenged by the opposing party and specific bases for possible
impeachment are shown, summary judgment should be denied and the case
allowed to proceed to trial. . . ."); [see also]{.underline} [Lodge
Music Hall, Inc. v. Waco Wrangler Club, Inc.]{.underline}, 831 F.2d 77,
81 (5th Cir. 1987) ("While the mere claim that an affidavit is perjured
is insufficient, where specific facts are alleged that if proven would
call the credibility of the moving party's witness into doubt, summary
judgment is improper."); [In re Citizens Loan & Sav. Co.]{.underline},
621 F.2d 911, 913 (8th Cir. 1980) (acknowledging that specific facts
tending to discredit a key witness could create a genuine issue for
trial).

Here, TypeRight pointed to specific facts that tend to discredit the
testimony of Drs. Cakir and Hirsch. These facts create a genuine issue
as to the credibility of Microsoft's witnesses. Thus, while the evidence
is sufficient to support a jury finding that the Marquardt document is
prior art, a reasonable jury could ultimately conclude otherwise. In
such circumstances, "\[t\]he court may not assess the credibility of
testimony when granting summary judgment." [Loral Fairchild Corp. v.
Matsushita Elec. Indus. Co.]{.underline}, 266 F.3d 1358, 1363 (Fed. Cir.
2001); [see also]{.underline} Fed. R. Civ. P. 56 advisory committee's
note (1963 Amendment) ("Where an issue as to a material fact cannot be
resolved without observation of the demeanor of witnesses in order to
evaluate their credibility, summary judgment is not appropriate.").[^8]

TypeRight is entitled to a trial to determine if the Marquardt document
is prior art. If the jury finds the testimony of Microsoft's witnesses
credible, and sufficient to establish that the Marquardt document was
published prior to the critical date, the district court will still have
to address whether the legal requirement of corroboration has been met.
"\[C\]orroboration is required of any witness whose testimony alone is
asserted to invalidate a patent." [Texas Digital Sys., Inc. v.
Telegenix, Inc.]{.underline}, 308 F.3d 1193, 1217 (Fed. Cir. 2002)
(quoting [Finnigan Corp. v. Int'l Trade Comm'n]{.underline}, 180 F.3d
1354, 1369 (Fed. Cir. 1999)) (alteration in original). Both physical
evidence and oral testimony of a disinterested party can serve to
satisfy the corroboration requirement. [Sandt]{.underline}, 264 F.3d at
1351. The sufficiency of the corroborating evidence is assessed
according to the following factors:

(1) the relationship between the corroborating witness and the alleged
    prior user,

(2) the time period between the event and trial,

(3) the interest of the corroborating witness in the subject matter in
    suit,

(4) contradiction or impeachment of the witness' testimony,

(5) the extent and details of the corroborating testimony,

(6) the witness' familiarity with the subject matter of the patented
    invention and the prior use,

(7) probability that a prior use could occur considering the state of
    the art at the time,

(8) impact of the invention on the industry, and the commercial value of
    its practice.

[Woodland Trust v. Flowertree Nursery, Inc.]{.underline}, 148 F.3d 1368,
1371 (Fed. Cir. 1998).

TypeRight also argues that the original Marquardt document is
"insufficient to invalidate the Patents" because the pictures are too
small to discern necessary details, and that the district court erred by
relying on an enlarged version of that document. (Appellant's Opening
Br. at 24.) We decline to address this issue in the first instance on
appeal. On remand, the district court should consider the scope and
content of the original Marquardt document, as well as the propriety of
relying on the enlarged version. If these issues are resolved in
Microsoft's favor, and the Marquardt document is found to be prior art,
we agree that the district court could conclude that the '441 and '484
patents were obvious in light of the prior art.[^9]

III

In the alternative, Microsoft urges that we sustain the judgment on
other grounds, namely that the asserted claims cannot be construed to
cover its keyboards because of disclaimers made in the prosecution of
TypeRight's patents. Even though we lack jurisdiction over the
cross-appeal, Microsoft may still defend the judgment on other grounds.
As the Supreme Court said in [United States v. American Railway Express
Co.]{.underline}, 265 U.S. 425 (1924), "it is . . . settled that the
appellee may, without taking a cross-appeal, urge in support of a decree
any matter appearing in the record." [Id.]{.underline} at 435. However,
under the circumstances of this case and because the issue of
infringement was not addressed by the district court, we decline to
reach the question of infringement for the first time on appeal.

CONCLUSION

We lack jurisdiction over Microsoft's cross-appeal. On the merits, we
conclude genuine issues of fact remain as to whether the Marquardt
document is prior art and that summary judgment of obviousness was
improper. Therefore, the decision of the district court granting summary
judgment of obviousness is

[REVERSED AND REMANDED]{.underline}.

COSTS

No costs.

[^1]: A QWERTY configuration is the specific arrangement of keys used by
    conventional English keyboards. "QWERTY" refers to the first six
    keys in the top, left-hand row of letter keys.

[^2]: TypeRight also argued that the Marquardt document was not properly
    authenticated. This argument has been abandoned on appeal.

[^3]: Before the June 21, 2000, final judgment of invalidity was
    vacated, TypeRight appealed to this court. After the first judgment
    was vacated, we dismissed that appeal for lack of jurisdiction.
    [TypeRight Keyboard Corp. v. Microsoft Corp.]{.underline}, No.
    00-1477 (Fed. Cir. Dec. 4, 2000) ("[TypeRight I]{.underline}").

[^4]: This is in contrast to a situation where the appellee urges
    invalidity as a new ground on which to support a judgment of
    non-infringement. In that situation, a cross-appeal is necessary
    since a judgment of invalidity is broader than a judgment of
    non-infringement. [See]{.underline} [Radio Steel & Mfg. Co. v. MTD
    Prods., Inc.]{.underline}, 731 F.2d 840, 843-44 (Fed. Cir. 1984).

[^5]: As noted above, TypeRight's motion to dismiss the cross-appeal for
    lack of jurisdiction was previously denied in an order by one judge
    of this court. [TypeRight II]{.underline}, slip op. at 2. To the
    extent it conflicts with our decision here, we are not bound to
    follow that order. Fed. R. App. P. 27(c) ("The court may review the
    action of a single judge."); [Nilssen v. Motorola,
    Inc.]{.underline}, 203 F.3d 782, 785 n.2 (Fed. Cir. 2000).

[^6]: The following exchange occurred during the deposition of Dr.
    Cakir:

    > Q: And was this photograph \[the Marquardt document\] that you
    > have handed out at the \[1986\] exhibit?
    >
    > A: I think so, yes.
    >
    > Q: Is that how you obtained it?
    >
    > A: I think so, yes.

    (J.A. at 701-02.)

[^7]: Microsoft concedes that the patents resulting from Marquardt's
    1991 applications might be invalid if the Marquardt document had
    been published in 1986. ([See]{.underline} Br. for Def.-Cross
    Appellant at 30 n.9.) We do not suggest that this fact standing
    alone would be sufficient to create a genuine issue of material
    fact. [See]{.underline} [Baxter Int'l, Inc. v. COBE Labs.,
    Inc.]{.underline}, 88 F.3d 1054, 1059 (Fed. Cir. 1996).

[^8]: [See also generally]{.underline} [Aetna Life Ins. Co. v.
    Ward]{.underline}, 140 U.S 76, 88 (1891) ("There are many things
    sometimes in the conduct of a witness upon the stand, and sometimes
    in the mode in which his answers are drawn from him through the
    questioning of counsel, by which a jury are to be guided in
    determining the weight and credibility of his testimony. That part
    of every case . . . belongs to the jury, who are presumed to be
    fitted for it by their natural intelligence and their practical
    knowledge of men and the ways of men; and so long as we have jury
    trials they should not be disturbed in their possession of it. . .
    .").

[^9]: TypeRight's only other argument against the finding of obviousness
    is that there is a genuine issue as to a motivation of one of skill
    in the art to combine the wrist rest taught in the Stack reference
    with the v-shaped, split keyboards shown in the Marquardt document.
    The Stack reference specifically teaches that "the concave, split,
    and split-and-turned models \[of keyboards\] are all ergonomically
    acceptable provided they are used at the correct angle of slope and
    height and in conjunction with a properly designed attached wrist
    support." (J.A. at 3553.) The Stack reference does not, as TypeRight
    argues, teach away from such a combination. We therefore conclude
    that the district court did not err in finding a motivation to
    combine as a matter of law. [See]{.underline} [Mazzari v.
    Rogan]{.underline}, 323 F.3d 1000, 1005 (Fed. Cir. 2003) (finding no
    genuine issue as to a motivation to combine).