N OTE : This disposition is nonprecedential. 

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

______________________ CONTENTGUARD HOLDING S, INC., Plaintiff

- Appellant

v. GOOGLE, INC., HTC AM ERICA, INC., HTC CORPORATION, HUAWEI DEVICE USA, INC., HUAWEI TECHNOLOGIES CO., LTD., MOTOROLA MOBILITY LLC, SAMSUN G ELECTRONICS AMERICA, INC., SAMSU NG ELECTRONICS CO., LTD., Defendants

- Cross

- Appellants

______________________ 2016

- 243 0, 2016

- 2431, 2016

- 2445, 2016

- 2446, 2016

- 2447, 2016

- 2448

______________________ Appeals from the United States District Court for the Eastern District of Texas in No s . 2:14

- cv - 00061

- JRG, 2:16

- cv - 00176

- JRG, Judge J. Rodney Gilstrap.

______________________ Decided: July 12, 2017

______________________ D IRK D. T HOMAS , McKool Smith, P.C., Washington, DC, argued for plaintiff

- appellant

. Also represented by R OBERT A. C OTE , R ADU A. L ELUTIU , New York, NY.CONTENTGUARD HOLDING S , INC

. v. GOOGLE , INC

. 2

R OBERT U NIKEL , Arnold & Porter Kaye Scholer LLP, Chicago, IL, argued for all defendants

- cross - appellants. D efendant s- cross - appellant s Google, Inc

. , Motorola Mobi lity LLC a lso represented by D EANNA K EYSOR ; M ICHAEL J. M ALECEK , P ETER E. R OOT , Palo Alto, CA

. Defendant

- cross appellant Google , Inc. also repr esented by D AN L. B AGATELL , Perkins Coie LLP, Hanover, NH

. T ERRY D UANE G ARNETT , Loeb & Loeb LLP, Los Ang eles, CA, for defendants

- cross - appellants HTC America, Inc., HTC Corporation.
S COTT F. P ARTRIDGE , Baker Botts, LLP, Houston, TX, for defendants

- cross - appellants Huawei Device USA, In c., Huawei Technologies Co., Ltd

. Also represented by B RADLEY B OWLING , M ICHELLE J ACOBSON E BER

. N EIL P. S IROTA , Baker Botts, LLP, New York, NY, for defendants

- cross - appellants Samsung Electronics Amer ica, Inc. , Samsung Electronics Co., Ltd

. Also represented by R OBERT L AWRENCE M AIER , J ENNIFER C OZEOLINO T EMPESTA

.

______________________ Before D YK , R EYNA , and W ALLACH , Circuit Judges. W ALLACH , Circuit Judge. This appeal is related to ContentGuard Holdings, Inc. v. Apple Inc. ( Apple ) , also decided today. See Nos. 2016

- 1916, 2016

- 2007, slip op. at 1– 13 (Fed. Cir. July 12 , 2017 ). Appellant ContentGuard Holdings, Inc. (“ContentGuard”) sued Cross

- Appellants Google, Inc. et al (“Google”) for patent in fringement in the U.S. District Court for the Eastern Distric t of Texas (“District Court”). Relevant here, ContentGuard alleged that Google infringed U.S. Patent Nos. 6,963,859 (“the ’859 patent”), 7,823,072 (“the ’072 patent”), 8,370,956 (“the ’956 patent”), 8,393,007 (“the ’007 patent”), and 8,001,053 (“the ’053 patent”)CONTENTGUARD HOLDING S , INC

. v. GOOGLE , INC

. 3

(collectively, “the Patents

- in

- Suit”), all of which relate to digital rights management for computers and other devices. 1 After claim construction and ruling on various evidentiary moti ons, t he District Court convened a jury trial, and the jury determined that , inter alia, Google had not infringed the Asserted C laims

. Following the jury’s verdict, the District Court entered a final judg ment in favor of Google. Both ContentGuard and Goo gle filed renewed motions for judgment as a matter of law (“JMOL”) or, in the alternative, motions for a new trial , on the grounds that the jury lacked sufficient evident iary support for its findings. The District Court denied the parties’ Motions for JMO L or for a New Trial

. See Co ntentGuard Holdings, Inc. v. Google, Inc. , No. 2:1 4- CV

- 61

- JRG, 2016 WL 3655603 , at *1 (E.D. Tex. July 8 , 2016). ContentGuard appeals the District Court’s claim co nstruction and denial of ContentGuard’s Motion for a New Trial

. Googl e conditionally cross

- appeals. We affirm. D ISCUSSION In Apple , we affirmed the District Court’s construction of the disputed term “ usage right s” (“ the usage right limitation ”) and entry of fin al judgment of noninfring ement

. S ee Nos. 2016

- 1916, 2016

- 2007 , slip op. at 8, 13

.

1 ContentGuard originally alleged that Google i nfringed the Patents

- in

- Suit generally, J.A. 454−63 ; ho wever, before trial, it narrowed its infringement arguments to assert only cl aim 1 of the ’859 patent, claim 1 of the ’072 patent, claim 7 of the ’956 patent, claim 6 of the ’007 patent, and claim 1 of the ’053 patent (collectively, “the Asserted Claims”) , J.A. 1, 7879

. Because the parties’ arguments apply with equal force to each of the Patents

in

- Suit, see generally Appellant’s Br; Cross

- Appellants ’ Br., we refer to the ’859 patent when discussing the Patents

- in

- Suit.CONTENTGUARD HOLDING S , INC

. v. GOOGLE , INC

. 4

Because ContentGuard conceded that those holding s control here, Oral Arg. at 0:54

– 1:16, http://oralarguments. cafc.uscourts.gov/default.aspx?fl=20 16

- 2430.mp3 , we need not address ContentGuard’s claim construction or i nfringement arguments. Nor do we need to address Google’s conditional cross

- appeal. See Cross

- Appellants’ Br. 47 n.4 (“If this [c]ourt affirms the jud g ment of noni nfringement, [Google is] will ing to with draw [its] cross

appeal.”). The refore, the sole remaining issue on appeal is whether “[a] new trial is . . . w arranted because the District Court allowed [Google], over Co n tentGuard’s objection, to mount an improper ‘practicing the prior art’/prosecution disclaimer defense.” Appell ant’s Br. 38 (footnote omitted)

. After articulating the relevant stan dard s of review, we turn to ContentGuard’s arg u ment. I. Standard s of Review We “review[] decisions on

. . . motions for a new trial[] and evidentiary rulings under the law of the regional circuit,” here the Fifth Circuit. SSL Servs., LLC v. Citrix Sys., Inc. , 769 F.3d 1073, 1082 (Fed. Cir. 2014) (citation omitted). The Fifth Circuit reviews denials of motions for a new trial for abuse of discretion, and “there is no such abuse of discretion unless there is a complete absence of evidence to support the verdict.” Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc. , 293 F.3d 912, 924 (5th Cir. 2002) (internal quotation marks, alterations, and citation omitted). The Fift h Circuit also reviews evidentiary rulin gs for abuse of discretion and will affirm the ruling unless it “ had a substantial eff ect on the ou tcome of the trial. ” U.S. Bank Nat’l Ass’n v. Verizon Commc’ns, Inc. , 761 F.3d 409, 430 (5th Cir. 2014). II. The Dis trict Court Did Not Abuse Its Discretion in Denying ContentGuard’s Motion for a New Trial ContentGuard argues that the District Court impro perly “allow[ed Google] to argue that the jury should find
non - infringement if it concludes that [a prior art refe r-CONTENTGUARD HOLDING S , INC

. v. GOOGLE , INC

. 5

en ce] teaches a system ‘like the Google system,’” because “[t]his [c]ourt has repeatedly held that there is no practicing the prior art defense to literal infringement

. ” Appe llant’s Br. 41 (internal quotation marks and citation omitted). The District Court found that Google had not presented a practicing the prior art defense but rather “properly distinguished their system from the systems described in the [P]atents

- in

- [S]uit.” ContentGuard , 2016 WL 3655603, at *5 . We hold that the District Court did not abuse its discretion. The “practicing the prior art defense typically refers to the situation where an accused infringer compares the accused infringing behavior to the prior art in an attempt to prove that its conduct is

. . . noninfringing . . . because the accused conduct is simply practicing the prior art.” Cordance Corp. v. Amazon.com, Inc. , 658 F.3d 1330, 1337 (Fed. Cir. 2011) (internal quotation marks omitted). We have made it “unequivocally clear

. . . that there is no practicing the prior art def ense to literal infringement.” Tate Access Floors , Inc. v. Interface Architectural Res. , Inc. , 279 F.3d 1357, 1365 (Fed. Cir. 2002) (internal quot ation marks omitted). Therefore, parties are prohibited from arguing that a plaintiff “ must prove

. . . that

. . . the accused devices embody all the limitations in the asserted claims, and in addition , [ that the] accused devices must not be an adoption of the combined teachings of the prior art.” Baxter Healthcare Corp. v. Spectramed, Inc. , 49 F.3d 1575, 1583 (Fed. Cir. 1995 ). As an initial matter, ContentGuard concedes that it did not object on the grounds that Google raised an i mproper practicing the prior art defense before the District Court. Oral Arg. at 6:28

– 57 , http://oralarguments.cafc

. uscourts.gov/ default.aspx?fl=2016

- 2430.mp3

. Instead, ContentGuard objected on the gr ounds of prosecution disclaimer. S ee J.A. 10704

– 07

. Because ContentGuard fail ed to identify the proper grounds for its objection below, ContentGuard failed to preserve its claim of e rror.CONTENTGUARD HOLDING S , INC

. v. GOOGLE , INC

. 6

S ee Fed. R. Evid. 103(a) (“ A party may claim error in a ruling to

. . . exclude evidence only if

. . . (1)

. . . a party, on the record

. . . (B) states the specific ground , unless it was apparent from the context

. . . . ” (emphasis added))

. Theref ore, these arguments are waived. S ee Singleton v. Wulff , 428 U.S. 106, 120 (1976) (“It is the general rule

. . . that a federal appellate court does not consider an issue not passed upon below.”)

. 2 Moreover , the District Court “properly and specifically i nstructed the jury that when answering the question of infringement, they were only to compare the accused products to the [Asserted C]laims, and were never to compare the accused products to the prior art.” Conten tGuard , 2016 WL 3655603, at *5; see J.A. 12603

. Co ntentGuard has not identified any evidence indicating that the jury misunderstood this explicit instruction from the District Court. See generally Appellant’s Br. Therefore, t he District Court did not abuse its discretion in finding that Google had not asserted a practicing the prior art defense. See Cordance , 658 F.3d at 1337 (explaining that the defendant had not improperly presented a practicing the prior art defense by discussing the prior art where the defendant’s experts presented suffici ent evidence as to each disputed limitation).

2 Although ContentGuard fashions its arguments to this court as objections to “practicing the prior art/prosecution disclaimer,” see, e.g. , Appellant’s Br. 38, 41, 43 (internal quotation marks omitted), ContentGuard provides only bare assertions of prosecution disclaimer that we will not review, see SmithKline Beecham Corp. v. Apotex Corp. , 439 F.3d 1312, 1320 (Fed. Cir. 2006) (decli ning to consider undeveloped argument s)

.CONTENTGUARD HOLDING S , INC

. v. GOOGLE , INC

. 7

C ONCLUSION We have considered the parties’ remaining arguments concerning infringement and find them unpersuasive. We do not reach the patent

- eligibility and invalidity issues raised in Google’s conditional cr oss - appeal. Accordingly, the Final Judgment of the U.S. District Court for the Eastern District of Texas is AFFIRMED C OSTS Each party shall bear its own costs.