NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

CONTENTGUARD HOLDINGS, INC.,

Plaintiff-Appellant

v.

GOOGLE, INC., HTC AMERICA, INC., HTC 

CORPORATION, HUAWEI DEVICE USA, INC., 

HUAWEI TECHNOLOGIES CO., LTD., MOTOROLA 

MOBILITY LLC, SAMSUNG ELECTRONICS 

AMERICA, INC., SAMSUNG ELECTRONICS CO., 

LTD., 

Defendants-Cross-Appellants

______________________ 

2016-2430, 2016-2431, 2016-2445, 2016-2446, 2016-2447, 

2016-2448 

______________________ 

Appeals from the United States District Court for the 

Eastern District of Texas in Nos. 2:14-cv-00061-JRG, 

2:16-cv-00176-JRG, Judge J. Rodney Gilstrap.

______________________ 

Decided: July 12, 2017

______________________ 

DIRK D. THOMAS, McKool Smith, P.C., Washington, 

DC, argued for plaintiff-appellant. Also represented by 

ROBERT A. COTE, RADU A. LELUTIU, New York, NY.
2 CONTENTGUARD HOLDINGS, INC. v. GOOGLE, INC. 

ROBERT UNIKEL, Arnold & Porter Kaye Scholer LLP, 

Chicago, IL, argued for all defendants-cross-appellants. 

Defendants-cross-appellants Google, Inc., Motorola Mobility LLC also represented by DEANNA KEYSOR; MICHAEL J.

MALECEK, PETER E. ROOT, Palo Alto, CA. Defendant-cross 

appellant Google, Inc. also represented by DAN L.

BAGATELL, Perkins Coie LLP, Hanover, NH. 

TERRY DUANE GARNETT, Loeb & Loeb LLP, Los Angeles, CA, for defendants-cross-appellants HTC America, 

Inc., HTC Corporation.

SCOTT F. PARTRIDGE, Baker Botts, LLP, Houston, TX, 

for defendants-cross-appellants Huawei Device USA, Inc., 

Huawei Technologies Co., Ltd. Also represented by 

BRADLEY BOWLING, MICHELLE JACOBSON EBER. 

NEIL P. SIROTA, Baker Botts, LLP, New York, NY, for

defendants-cross-appellants Samsung Electronics America, Inc., Samsung Electronics Co., Ltd. Also represented 

by ROBERT LAWRENCE MAIER, JENNIFER COZEOLINO 

TEMPESTA. 

______________________ 

Before DYK, REYNA, and WALLACH, Circuit Judges.

WALLACH, 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 infringement in the U.S. District Court for the 

Eastern District 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 HOLDINGS, 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 motions, the District Court convened a jury 

trial, and the jury determined that, inter alia, Google had 

not infringed the Asserted Claims. Following the jury’s 

verdict, the District Court entered a final judgment in 

favor of Google. Both ContentGuard and Google 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 evidentiary 

support for its findings. The District Court denied the

parties’ Motions for JMOL or for a New Trial. See ContentGuard Holdings, Inc. v. Google, Inc., No. 2:14-CV-61-

JRG, 2016 WL 3655603, at *1 (E.D. Tex. July 8, 2016).

ContentGuard appeals the District Court’s claim construction and denial of ContentGuard’s Motion for a New 

Trial. Google conditionally cross-appeals. We affirm.

DISCUSSION

In Apple, we affirmed the District Court’s construction 

of the disputed term “usage rights” (“the usage right 

limitation”) and entry of final judgment of noninfringement. See Nos. 2016-1916, 2016-2007, slip op. at 8, 13. 

 

1 ContentGuard originally alleged that Google infringed the Patents-in-Suit generally, J.A. 454−63; however, before trial, it narrowed its infringement arguments 

to assert only claim 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 Patentsin-Suit, see generally Appellant’s Br; Cross-Appellants’ 

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

Patents-in-Suit.
4 CONTENTGUARD HOLDINGS, INC. v. GOOGLE, INC. 

Because ContentGuard conceded that those holdings 

control here, Oral Arg. at 0:54–1:16, http://oralarguments.

cafc.uscourts.gov/default.aspx?fl=2016-2430.mp3, we need 

not address ContentGuard’s claim construction or infringement 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 judgment of noninfringement, [Google is] willing to withdraw [its] crossappeal.”). Therefore, the sole remaining issue on appeal

is whether “[a] new trial is . . . warranted because the 

District Court allowed [Google], over ContentGuard’s 

objection, to mount an improper ‘practicing the prior 

art’/prosecution disclaimer defense.” Appellant’s Br. 38

(footnote omitted). After articulating the relevant standards of review, we turn to ContentGuard’s argument.

I. Standards 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 Fifth Circuit also reviews 

evidentiary rulings for abuse of discretion and will affirm 

the ruling unless it “had a substantial effect on the outcome 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 District Court Did Not Abuse Its Discretion in 

Denying ContentGuard’s Motion for a New Trial

ContentGuard argues that the District Court improperly “allow[ed Google] to argue that the jury should find 

non-infringement if it concludes that [a prior art refer-
CONTENTGUARD HOLDINGS, INC. v. GOOGLE, INC. 5

ence] 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.” Appellant’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 defense to literal infringement.” 

Tate Access Floors, Inc. v. Interface Architectural Res., 

Inc., 279 F.3d 1357, 1365 (Fed. Cir. 2002) (internal quotation 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 improper 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 grounds of prosecution 

disclaimer. See J.A. 10704–07. Because ContentGuard 

failed to identify the proper grounds for its objection 

below, ContentGuard failed to preserve its claim of error. 
6 CONTENTGUARD HOLDINGS, INC. v. GOOGLE, INC. 

See 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)). 

Therefore, these arguments are waived. See 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 

instructed 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.” ContentGuard, 2016 WL 3655603, at *5; see J.A. 12603. ContentGuard has not identified any evidence indicating that 

the jury misunderstood this explicit instruction from the 

District Court. See generally Appellant’s Br. Therefore, 

the 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 sufficient 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) (declining to consider undeveloped arguments). 
CONTENTGUARD HOLDINGS, INC. v. GOOGLE, INC. 7

CONCLUSION

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 cross-appeal. Accordingly, 

the Final Judgment of the U.S. District Court for the 

Eastern District of Texas is

AFFIRMED

COSTS

Each party shall bear its own costs.