United States Court of Appeals 

for the Federal Circuit ______________________

WI-LAN INC.,

Plaintiff-Appellant

v.

SHARP ELECTRONICS CORPORATION,

Defendant-Appellee

______________________

2020-1041

______________________

Appeal from the United States District Court for the 

District of Delaware in No. 1:15-cv-00379-LPS, Chief Judge 

Leonard P. Stark.

-------------------------------------------------

WI-LAN INC.,

Plaintiff-Appellant

v.

VIZIO, INC.,

Defendant-Appellee

______________________

2020-1043

______________________

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2 WI-LAN INC. v. SHARP ELECTRONICS CORPORATION

Appeal from the United States District Court for the 

District of Delaware in No. 1:15-cv-00788-LPS, Chief Judge 

Leonard P. Stark.

______________________

Decided: April 6, 2021

______________________

DANIEL FLETCHER OLEJKO, Bragalone Olejko Saad PC, 

Dallas, TX, argued for plaintiff-appellant. Also represented by MONTE BOND, TERRY SAAD.

 JOHN C. O'QUINN, Kirkland & Ellis LLP, Washington, 

DC, argued for all defendants-appellees. Defendant-appellee Sharp Electronics Corporation also represented by 

WILLIAM H. BURGESS; ADAM R. ALPER, San Francisco, CA;

GIANNI CUTRI, KATHERINE E. RHOADES, Chicago, IL; 

MICHAEL W. DE VRIES, Los Angeles, CA.

 MARK S. DAVIES, Orrick, Herrington & Sutcliffe LLP, 

Washington, DC, for defendant-appellee VIZIO, Inc. Also 

represented by ELIZABETH MOULTON, Menlo Park, CA;

STANLEY MARTIN GIBSON, Jeffer Mangels Butler & Mitchell, Los Angeles, CA.

 ______________________

Before DYK, TARANTO, and STOLL, Circuit Judges.

DYK, Circuit Judge.

Wi-LAN Inc. appeals two related judgments of the 

United States District Court for the District of Delaware, 

on summary judgment in one instance and by stipulation 

in the other, holding that Sharp Electronics Corporation

and Vizio, Inc. did not infringe the asserted claims of U.S. 

Patent No. 6,359,654 (“the ’654 patent”) and U.S. Patent 

No. 6,490,250 (“the ’250 patent”). We affirm.

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WI-LAN INC. v. SHARP ELECTRONICS CORPORATION 3

BACKGROUND

Wi-LAN is the owner of the ’654 and ’250 patents. The 

’654 patent concerns “methods to display interlaced video 

on [a] noninterlaced monitor.” ’654 patent, abstract. This 

is also known as “deinterlacing.” Interlaced video was developed at the inception of electronic television in 1936 and

became the standardized video format adopted by the National Television Systems Committee. Most television sets 

used interlaced video formats during that time period and 

for decades afterwards. Interlacing video was developed to 

prevent a “flicker” effect, an effect that results from the difference in the frame rate of the television set and the frame 

rate in which a program was filmed. To interlace a video, 

the video frame is split into two fields, which correspond to 

the odd and even lines of a video frame. The first field 

(comprising of data on the odd lines) is scanned onto a television set in the first 1/60th of a second, and the second 

field (comprising of data on the even lines) is scanned in 

the next 1/60th of a second. Because the fields are displayed on television sets at a rate of 60 fields per second, 

the viewer does not notice any missing content and perceives the two fields as a single frame.

The need for deinterlacing arose in the 1980s and 

1990s due to the development of higher-quality television

sets and the need to display television video signals on computer monitors. All modern television sets use noninterlaced displays. Noninterlaced video, unlike interlaced 

video, displays an entire frame every 1/60th of a second and 

allows for increased detail to be displayed on a screen. The 

’654 patent does not claim to have invented deinterlacing 

but claims “methods and systems for displaying interlaced 

video on monitors [that] are non-interlaced.” ’654 patent, 

col. 1 ll. 13–15. 

The other patent at issue here, the ’250 patent, “relates 

generally to multimedia encoders and specifically [to] an 

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4 WI-LAN INC. v. SHARP ELECTRONICS CORPORATION

integrated multimedia stream multiplexer.” ’250 patent, 

col. 1 ll. 5–7. A stream multiplexer receives separate audio 

and video data streams and combines them into a single 

multimedia data stream. The ’250 patent is directed to a 

system for dynamically adjusting the bit rates of the input 

audio and video data streams to obtain a combined multimedia data stream with an optimal bit rate.

Vizio currently sells and through 2015 Sharp sold 

“smart” television sets. On May 11, 2015, Wi-LAN brought 

suit for patent infringement against Sharp, alleging direct 

and induced infringement of various claims of the ’654 and 

’250 patents. On September 8, 2015, Wi-LAN filed a similar complaint against Vizio, asserting the same claims of 

the ’654 and ’250 patents. The district court did not consolidate the Vizio and Sharp cases but managed the cases 

in parallel.

Wi-LAN accused Sharp and Vizio of infringing claims 

1, 4, and 9 of the ’654 patent and claims 1, 4, and 6 of the 

’250 patent. Claim 1 of the ’654 patent is an independent 

method claim and claims 4 and 9 depend on claim 1. Claim 

1 of the ’250 patent is an independent apparatus claim and 

claims 4 and 6 depend on claim 1.

The deinterlacing functions (which allegedly infringe 

the asserted method claims of the ’654 patent) and the components that optimize bit streaming (which allegedly infringe the asserted system claims of the ’250 patent) reside 

on each television set’s “system-on-chip.” A system-on-chip 

combines numerous functions of a system (e.g., storage, 

memory, processing, and control), previously implemented 

in multiple chip sets, onto a single chip.

On February 27, 2018, the district court issued an order construing certain terms of the ’654 patent and the ’250 

patent. Following the district court’s claim construction order, Wi-LAN conceded that that it could not prove infringement of the asserted claims of the ’250 patent under the 

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WI-LAN INC. v. SHARP ELECTRONICS CORPORATION 5

district court’s constructions of “output multimedia data 

stream” and “a multimedia processor, coupled to the data 

rate analyzer.” These two terms are common to all asserted claims of the ’250 patent. The district court entered 

a stipulated judgment of noninfringement of the ’250 patent.

With respect to the ’654 patent, Wi-LAN alleged both 

direct and induced infringement. The parties filed crossmotions for summary judgment on the issue of infringement. The district court explained that Wi-LAN has 

known that it could not establish infringement without establishing that the source code of Sharp’s and Vizio’s systems actually practiced the patented method.

The district court granted Sharp and Vizio’s motion for 

summary judgment of noninfringement, holding that WiLAN lacked sufficient admissible evidence to prove direct 

infringement. The district court found that the printout of 

the source code that Wi-LAN sought to use as evidence was 

inadmissible.

Wi-LAN appealed in each case. Because the underlying cases were related, this court consolidated the appeals. 

We have jurisdiction under 28 U.S.C. § 1295(a)(1).

DISCUSSION

I

With respect to the ’654 patent, Wi-LAN challenges the 

district court’s grant of summary judgment of noninfringement to Vizio and Sharp.1 We review a grant of summary 

1 On appeal, Wi-LAN also argues that the district 

erred in certain discovery rulings that adversely affected 

its ability to prove induced infringement of the asserted 

claims of the ’654 patent. Because we hold that Wi-LAN 

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6 WI-LAN INC. v. SHARP ELECTRONICS CORPORATION

judgment de novo. MobileMedia Ideas LLC v. Apple Inc., 

780 F.3d 1159, 1164 (Fed. Cir. 2015) (citing Gonzalez v. 

Sec’y of Dep’t of Homeland Sec., 678 F.3d 254, 257 (3d Cir. 

2012)). We apply regional circuit law to evidentiary determinations. TecSec, Inc. v. Adobe Inc., 978 F.3d 1278, 1285 

(Fed. Cir. 2020). The Third Circuit reviews a district 

court’s evidentiary rulings for abuse of discretion. Acumed 

LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 211 

(3d Cir. 2009).

The district court granted summary judgment because 

Wi-LAN had failed to provide admissible evidence of the 

source code that Wi-LAN needed to prove its infringement 

theories as to claims 1, 4, and 9.2

cannot establish direct infringement, we do not need to 

reach these issues related to induced infringement.

2 Claim 1 of the ’654 patent (the only asserted independent claim) provides:

1. A method for displaying interlaced video data on 

a non-interlaced monitor, the interlaced video data 

comprising a plurality of paired fields, each pair of 

fields being vertically offset relative to each other 

by one-half of a field line spacing distance, each 

field comprising a plurality of lines of video data, 

the method including:

(a) capturing a first field and a second field of each 

pair of fields into respective buffers; 

(b) scaling each of the first field and second field of 

each pair of fields to fill vertical resolution of the 

non-interlaced monitor;

(c) adjusting one of the first field or second field of 

the pair of fields to substantially correct for the 

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WI-LAN INC. v. SHARP ELECTRONICS CORPORATION 7

Wi-LAN supplied documents from the third-party chip 

manufacturers purported to be the source code printouts

together with declarations from employees of the manufacturers purporting to authenticate the source code

printouts. The declarations stated that the source code 

“provide[d] the implementation of the deinterlacing process for digital video data in a specified list of chips” and 

“add[ed] that there [we]re ‘no material differences’ between 

the version of code produced and any versions used since 

2009.” J.A. 26–27 (footnote omitted). The source code included “added commentary on the printed excepts.” J.A. 

29. The district court held that this evidence was inadmissible and that Wi-LAN had failed to raise a genuine issue 

of material fact as to noninfringement. On appeal, Wi-LAN 

has several theories as to why the district court erred and 

why the source code printout was admissible.

A

Wi-LAN argues that the source code printout constituted a business record, admissible under the business records exception to the hearsay rule. “The business records 

exception allows admission of records of regularly conducted activity through the testimony of a custodian or 

vertical offset between the pairs of fields, where 

said adjusting is performed concurrently with said 

scaling;

(d) displaying the first field of each pair of fields on 

the non-interlaced monitor in a first time period; 

and 

(e) displaying the second field of each pair of fields 

on the non-interlaced monitor in a second time period subsequent to the first time period.

’654 patent, col. 10 ll. 46–65.

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8 WI-LAN INC. v. SHARP ELECTRONICS CORPORATION

other qualified witness.” Crash Dummy Movie, LLC v. 

Mattel, Inc., 601 F.3d 1387, 1392 (Fed. Cir. 2010) (citing 

Fed. R. Evid. 803(6)). Specifically, the hearsay exception of 

Rule 803(6) permits a “record” that meets the following five 

requirements to be admitted into evidence:

(A) the record was made at or near the time by—or 

from information transmitted by—someone with 

knowledge;

(B) the record was kept in the course of a regularly 

conducted activity of a business, organization, occupation, or calling, whether or not for profit; 

(C) making the record was a regular practice of 

that activity; 

(D) all of these conditions are shown by the testimony of the custodian or another qualified witness, 

or by a certification that complies with Rule 

902(11) or (12) or with a statute permitting certification;[3] and 

(E) the opponent does not show that the source of 

information or the method or circumstance of preparation indicate a lack of trustworthiness.

Fed. R. Evid. 803(6). “[I]f the proponent has established 

the stated requirements of the exception—regular business 

with regularly kept record, source with personal 

knowledge, record made timely, and foundation testimony 

3 Under Rule 902(11), a domestic record is self-authenticating if it “meets the requirements of Rule 

803(6)(A)–(C), as shown by a certification of the custodian 

or another qualified person,” and the adverse party had 

“reasonable written notice of the intent to offer the record 

. . . so that the party has a fair opportunity to challenge 

[it].” Fed. R. Evid. 902(11).

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WI-LAN INC. v. SHARP ELECTRONICS CORPORATION 9

or certification—then the burden is on the opponent to 

show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.” Fed. R. Evid. 803(6) advisory committee’s notes to 

2014 amendments.

To establish that the source code printout was an admissible business record under Rule 803(6), Wi-LAN was 

required to establish by testimony from a “custodian or 

other another qualified witness” that the documents satisfied the requirements of the Rule. Wi-LAN argues that it 

properly authenticated the source code printout through 

the declarations of the chip manufacturers’ employees. We 

agree with the district court that the declarations could not 

be used to authenticate the source code printout on the theory that the declarations were a proxy for trial testimony 

or themselves admissible as business records.

As Wi-LAN notes, declarations are typically used at 

summary judgment as a proxy for trial testimony. But declarations cannot be used for this purpose unless the witness will be available to testify at trial. Under Federal 

Rule of Civil Procedure 56(c)(2), Wi-LAN was required to 

“explain the admissible form that is anticipated.” Fed. R. 

Civ. P. 56(c)(2) advisory committee’s notes on 2010 amendments. Wi-LAN argued that it met this burden by explaining that the declarants were available to testify at trial.

The district court, however, found the opposite. Indeed, 

when asked by the court at the summary judgment hearing 

whether the declarants would appear at trial, Wi-LAN’s 

counsel responded that Wi-LAN did not “think that [it 

would be] able to force them to come to trial.” J.A. 

15,398–99. 

Wi-LAN thus did not establish that the declarants 

would be available to testify at trial and, as a result, the 

declarations could not be used as a substitute for trial testimony. E.g., Fraternal Order of Police, Lodge 1 v. City of 

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10 WI-LAN INC. v. SHARP ELECTRONICS CORPORATION

Camden, 842 F.3d 231, 238 (3d Cir. 2016) (testimony admissible if declarants were available to testify at trial); J.F. 

Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d 

Cir. 1990) (“[H]earsay evidence produced in an affidavit opposing summary judgment may be considered if the out-ofcourt declarant could later present the evidence through 

direct testimony, i.e., in a form that ‘would be admissible 

at trial.’” (quoting Williams v. Borough of West Chester, 891 

F.2d 458, 465 n.12 (3d Cir. 1989)).

Wi-LAN also seems to argue that it properly authenticated the source code printout because the declarations 

were custodial declarations that were themselves admissible as business records under Rule 803(6). Wi-LAN, however, admits that it obtained the source code printout and 

declarations by filing lawsuits against the manufacturers 

and then dismissing the lawsuits without prejudice after 

the manufacturers provided Wi-LAN with the source code 

printout and declarations it sought. Wi-LAN even explains 

that “[t]he lawsuits were necessary to secure production of 

the source code and declarations because [the system-onchip manufacturers] had refused to cooperate in discovery.” 

Appellant’s Br. 51. The declarations thus do not constitute 

a “record [that] was kept in the course of a regularly conducted activity of a business.” Fed. R. Evid. 803(6)(B). Instead, the declarations were created and prepared for the 

purposes of litigation, placing them outside the scope of the 

exception. As a result, the declarations were not admissible as business records for use to authenticate the source 

code printout.

Wi-LAN argues alternatively that, under Third Circuit 

law, these deficiencies in the declarations did not preclude 

their use. It bases its theory on the Third Circuit’s view 

that “the testimony of the custodian or another qualified 

witness” under Rule 803(6)(D) “can be met by documentary 

evidence, affidavits, or admissions of the parties, i.e., by circumstantial evidence, or by a combination of direct and 

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WI-LAN INC. v. SHARP ELECTRONICS CORPORATION 11

circumstantial evidence.” In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 288 (3d Cir. 1983), rev’d on 

other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). The Third Circuit 

adopted this view after concluding that “[i]t would make 

little sense to require live witness testimony every time a 

business record is offered when, from the other materials 

open for the court’s consideration, it can make the required 

finding to its own satisfaction.” Id.

The Third Circuit’s approach runs counter to the text 

of Rule 803(6), which requires the conditions of the Rule to 

be shown “by the testimony of the custodian or another 

qualified witness[] or by a certification that complies with 

Rule 902(11) or (12) or with a statute permitting certification.” Fed. R. Evid. 803(6)(D). Its view appears not to have 

been widely adopted. See 5 Weinstein’s Federal Evidence

§ 803.08[c] & n.76. But even under this approach, the declarations do not suffice because Wi-LAN does not meet 

Rule 803(6)’s final requirement that “the opponent does not 

show that the source of information or the method or circumstance of preparation indicate a lack of trustworthiness.” Fed. R. Evid. 803(6)(E).

The district court concluded that Sharp and Vizio “have 

demonstrated a lack of trustworthiness in the materials; 

the source code contains inconsistent dates in the 

metadata, copyright, and revisions histories as well as 

added commentary on the printed excerpts.” J.A. 29. The 

court also found that Wi-LAN “failed to obtain change logs, 

file comparisons, or other evidence of code revisions that 

might clear up the inconsistencies in the code.” J.A. 29. 

And the district court found that 

[t]he circumstances surrounding the production, 

including the fact that the [system-on-chip] manufacturers originally claimed that they could not 

produce one version of source code for all [systemCase: 20-1041 Document: 73 Page: 11 Filed: 04/06/2021
12 WI-LAN INC. v. SHARP ELECTRONICS CORPORATION

on-chips] at issue in the case, raise[d] further concern as to the credibility of both the source code and 

the [system-on-chip] declarations seeking to authenticate the code.

Id. The Third Circuit has affirmed a district court’s decision to not admit records on similar grounds. See SEC v. 

Hughes Capital Corp., 124 F.3d 449, 456 (3d Cir. 1997) 

(holding that a district court did not abuse its discretion in 

refusing to admit altered copies of a record under Rule 

803(6) because the records indicated “a lack of trustworthiness”).

The district court did not abuse its discretion in holding 

that the source code printout does not constitute a business

record admissible under Rule 803(6).

B

Wi-LAN also appears to argue that the district court 

should have found the source code printout admissible under Federal Rule of Evidence 901(b)(4). Rule 901(b)(4) permits a record to be admitted into evidence if “[t]he 

appearance, contents, substance, internal patterns, or 

other distinctive characteristics of the item, taken together 

with all the circumstances” “support a finding that the item 

is what the proponent claims it is.” Fed. R. Evid. 901(a), 

(b)(4).

In support of its Rule 901(b)(4) argument, Wi-LAN 

states only that “there was no legitimate reason to question 

the trustworthiness of the source code.” Appellant’s Br. 54. 

The district court concluded that the source code printout’s 

“appearance, contents, substance, internal patterns, [and] 

other distinctive characteristics,” Fed. R. Evid. 901(b)(4),

did not satisfy Rule 901(b)(4)’s strictures “given the highly 

dubious circumstances surrounding the production and the 

lack of indicia of trustworthiness in the source code,” J.A. 

30, as described in the previous Section. On this record, 

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WI-LAN INC. v. SHARP ELECTRONICS CORPORATION 13

the district court did not abuse its discretion in refusing to 

treat the source code printout as evidence under Rule 

901(b)(4).

C

Wi-LAN alternatively argues that the source code 

printout should have been admitted into evidence under 

Federal Rule of Evidence 703.4 Wi-LAN’s expert submitted 

a report stating that Sharp’s and Vizio’s television sets infringe the claimed methods of the ’654 patent by the use of 

the source code. Wi-LAN’s expert did not attempt to authenticate the source code printout. But Wi-LAN argues 

that its expert should be able to opine on the meaning of 

the inadmissible source code printout and to provide the 

inadmissible source code printout to the jury despite 

Wi-LAN’s failure to authenticate the source code printout.

Wi-LAN’s argument presents two separate and distinct 

questions: (1) whether the source code printout was admissible because it was relied on by the expert and (2) whether 

the expert’s testimony relying on the source code was admissible to establish infringement. The answer to the first 

question is “no” because expert reliance does not translate 

4 An expert may base an opinion on facts or data 

in the case that the expert has been made aware of 

or personally observed. If experts in the particular 

field would reasonably rely on those kinds of facts 

or data in forming an opinion on the subject, they 

need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may 

disclose them to the jury only if their probative 

value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Fed. R. Evid. 703.

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14 WI-LAN INC. v. SHARP ELECTRONICS CORPORATION

to admissibility. The answer to the second question is also 

“no” because Wi-LAN did not establish that experts in the 

field “reasonably rely on” unauthenticated source code.

As to the first question, “Rule 703 does not make admissible otherwise inadmissible evidence.” 4 Weinstein’s 

Federal Evidence § 703.05 n.12. That is because “Rule 703 

is not, itself, an exception to or exclusion from the hearsay 

rule or any other evidence rule that makes the underlying 

information inadmissible.” Id. § 703.05. Rule 703 does not 

authorize admitting inadmissible evidence “on the pretense that it is the basis for expert opinion when, in fact, 

the expert adds nothing to the [inadmissible evidence] 

other than transmitting [it] to the jury.” 29 Charles Alan 

Wright, Arthur R. Miller & Victor J. Gold, Federal Practice 

and Procedure § 6274 (2d ed. 2020). “In such a case, Rule 

703 is simply inapplicable and the usual rules regulating 

the admissibility of evidence control.” Id. Rule 703 permits 

the proponent of an expert’s opinion to disclose the underlying material to a jury if “experts in the particular field 

would reasonably rely on” the underlying material and “if 

[the underlying material’s] probative value in helping the 

jury evaluate the opinion substantially outweighs [its] prejudicial effect.” Fed. R. Evid. 703. But “the trial judge must 

give a limiting instruction upon request, informing the jury 

that the underlying information must not be used for substantive purposes.” Fed. R. Evid. 703 advisory committee’s 

notes to the 2000 amendments. These principles have been

reaffirmed repeatedly.

Exemplary is the Second Circuit’s decision in United 

States v. Mejia, 545 F.3d 179 (2d Cir. 2008), where the court 

held that the government’s expert witness could not simply 

repeat hearsay to the jury. The Second Circuit explained 

that the expert “identified hearsay as the source of much of 

his information” during cross-examination and “did not analyze his source materials so much as repeat their contents.” Id. at 197–98. Because the expert simply provided 

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WI-LAN INC. v. SHARP ELECTRONICS CORPORATION 15

second-hand evidence to the jury, the court held that the 

expert’s testimony fell outside the permissible bounds of 

Rule 703. Id. at 198.

The Second Circuit reached a similar conclusion in 

Marvel Characters, Inc. v. Kirby, 726 F.3d 119 (2d Cir. 

2013). There, the Second Circuit held that, although Rule 

703 “permit[ted] experts some leeway” in basing their opinions on inadmissible evidence, “a party cannot call an expert simply as a conduit for introducing hearsay under the 

guise that the testifying expert used the hearsay as the basis of his testimony.” Id. at 136 (citation omitted). Rather, 

the court explained, “[t]he appropriate way to adduce factual details of specific past events is, where possible, 

through persons who witnessed those events.” Id.

Similarly, the Fifth Circuit has explained that “[c]ourts 

. . . must serve a gate-keeping function with respect to Rule 

703 opinions to ensure ‘the expert isn’t being used as a vehicle for circumventing the rules of evidence.’” Factory 

Mut. Ins. Co. v. Alon USA L.P., 705 F.3d 518, 524 (5th Cir. 

2013) (quoting In re James Wilson Assocs., 965 F.2d 160, 

173 (7th Cir. 1992)). The court further explained that 

“Rule 703 ‘was not intended to abolish the hearsay rule and 

to allow a witness, under the guise of giving expert testimony, to in effect become the mouthpiece of the witnesses 

on whose statements or opinions the expert purports to 

base his opinion.’” Id. (citation omitted).

In United States v. Tomasian, 784 F.2d 782 (7th Cir. 

1986), the Seventh Circuit held that the trial court correctly prevented an expert from testifying when the expert 

did not plan to offer his own opinion but, instead, planned 

to repeat the out-of-court opinion of another person. Id. at 

786. The court explained that “Rule 703 does not sanction 

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16 WI-LAN INC. v. SHARP ELECTRONICS CORPORATION

the simple transmission of hearsay; it only permits an expert opinion based on hearsay.” Id.5

United States v. Rollins, 862 F.2d 1282 (7th Cir. 1989), 

cited in the advisory committee notes to Rule 703, is also 

informative. There, the Seventh Circuit noted that it 

would be “improper” to use an expert as a “mouthpiece” to 

relay hearsay to the jury but held that the expert could 

properly give testimony interpreting hearsay because experts in the relevant field “ordinarily relied” on hearsay in 

reaching their opinions. Id. at 1293.

Here, the district court concluded that the source code 

printout could not be admitted under Rule 703 because it 

was not authenticated and, as a result, Wi-LAN was attempting to use Rule 703 as a “‘backdoor’ to allow the admission into evidence of otherwise inadmissible 

declarations and other materials simply because they 

might assist the jury’s evaluation of an expert’s opinions.” 

J.A. 31. We agree. Wi-LAN attempts to do exactly what is 

impermissible under Rule 703 by using its expert as a substitute for a fact witness to circumvent the rules of evidence 

to admit otherwise inadmissible evidence.

As to the second question (the admissibility of the expert’s testimony as to infringement), under Rule 703, 

“[d]ata relied on by the expert ‘need not be admissible for 

the opinion to be admitted’ if experts in the field would reasonably rely on such data.” Power Integrations, Inc. v. 

Fairchild Semiconductor Int’l, Inc., 711 F.3d 1348, 1373 

5 See also United States v. Smith, 869 F.2d 348, 355 

(7th Cir. 1989) (“It is, of course, true that an expert witness 

may not simply summarize the out-of-court statements of 

others as his testimony.”); United States v. Lawson, 653 

F.2d 299, 302 (7th Cir. 1981) (“The Government could not, 

for example, simply produce a witness who did nothing but 

summarize out-of-court statements made by others.”).

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(Fed. Cir. 2013) (quoting Fed. R. Evid. 703). “[I]t is the 

judge who makes the determination of reasonable reliance, 

and . . . for the judge to make the factual determination under Rule 104(a) that an expert is basing his or her opinion 

on a type of data reasonably relied upon by experts, the 

judge must conduct an independent evaluation into reasonableness.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 

748 (3d Cir. 1994). The burden to establish reasonable reliance is on the proponent of challenged expert testimony. 

See id. at 743–44, 747–48.

Wi-LAN argues that experts typically rely on material, 

like source code, in reaching opinions about infringement. 

That is obviously correct. But Wi-LAN has not made a 

showing that source code experts reasonably rely on unauthenticated source code printouts.

In support of its position, Wi-LAN cites Factory Mutual 

Insurance Co. v. Alon USA L.P., contending that the case 

stands for the proposition that experts can reasonably rely 

on inadmissible evidence (out-of-court statements as to 

property value) to reach their conclusions as appraisers. 

There, the Fifth Circuit permitted the testimony “[i]n light 

of the deferential standard on appeal” because the expert 

“clearly state[d] that the sort of information relied upon 

here—the opinions of others—is the sort of information 

reasonably relied upon by appraisers.” 705 F.3d at 525. 

Wi-LAN points to no similar testimony by its expert here.

Wi-LAN’s conclusory statement that “the declarations 

and source code evidence are the type of information that 

an expert ‘would reasonably rely on . . . in forming an opinion’ under FRE 703,” J.A. 15,454, is not sufficient. See 

Schuchardt v. President of the United States, 802 F. App’x 

69, 76 (3d Cir. 2020) (holding that simply asserting that 

certain “documents are the ‘type of data that experts in the 

intelligence community would typically and reasonably 

rely upon’” “provided no basis for the Court to conduct an 

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18 WI-LAN INC. v. SHARP ELECTRONICS CORPORATION

independent evaluation into reasonableness” under Rule 

703).

The district court did not abuse its discretion in rejecting Wi-LAN’s theory under Federal Rule of Evidence 703.6

D

In light of these admissibility issues, Wi-LAN’s

fallback position is that the district court should have 

granted it additional time to obtain an admissible version 

of the source code. We disagree. Wi-LAN had ample time 

to obtain the source code and to find custodial witnesses to 

authenticate the source code over the course of discovery 

but failed to do so.

Wi-LAN had been on notice since early 2016 that it was 

going to need the system-on-chip source code from third 

parties to prove its direct infringement case. Throughout 

the litigation, Wi-LAN repeatedly requested extensions of 

time to obtain the source code from the third-party manufacturers. Ultimately, however, Wi-LAN only procured a 

single printout version of the source code with declarations 

after suing the third-party manufacturers.

Wi-LAN, as the district court found, “had ample time 

and opportunities over years of litigation to obtain evidence 

of infringement from the [system-on-chip] manufacturers”

but failed to do so. J.A. 32. Given this record, the district 

court did not abuse its discretion in denying Wi-LAN an 

additional opportunity to obtain an admissible form of the 

source code.

6 We have reviewed Wi-LAN’s other arguments concerning the admissibility of the source code printout and 

declarations and find them to be without merit.

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WI-LAN INC. v. SHARP ELECTRONICS CORPORATION 19

II

With respect to the ’250 patent, Wi-LAN challenges the 

district court’s construction of two claim limitations: 

(1) “output multimedia data stream” and (2) “a multimedia 

processor, coupled to the data rate analyzer.” We review a 

district court’s ultimate claim construction de novo where, 

as here, there is no extrinsic evidence that bears on the 

claim construction. Allegan Sales, LLC v. Sandoz, Inc., 935 

F.3d 1370, 1373 (Fed. Cir. 2019).

The two limitations at issue appear in each of the asserted claims. Claim 1, the one asserted independent claim 

on which the other two asserted claims depend, provides:

1. In a system for combining input multimedia data 

streams to form an output multimedia data stream, 

an apparatus for adjusting rates of the input multimedia data streams comprising:

a data rate analyzer, coupled to the output multimedia data stream, for determining the data rate 

of the output multimedia data stream; and

a multimedia processor, coupled to the data rate 

analyzer, for comparing the determined output 

multimedia data stream data rate to a target output data stream data rate, and generating rate control signals for adjusting the data rates of the input 

multimedia data streams responsive to the comparison.

’250 patent, col. 9 ll. 28–41 (emphases added).

The district court construed “output multimedia data 

stream” to mean a “combined audio and video stream that 

are output from the system.” J.A. 68. Wi-LAN argues that 

“the limitation imposed by the court’s construction . . . —

that it must be ‘output from the system’—is not supported 

by any intrinsic evidence.” Appellant’s Br. 61. In 

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20 WI-LAN INC. v. SHARP ELECTRONICS CORPORATION

Wi-LAN’s view, the district court’s construction improperly 

limits the claims because the plain meaning of the term “is 

not restricted to any device or system.” Id. at 61–62. We 

disagree.

The ’250 patent’s specification explains that the 

“claimed input multimedia data streams” are combined 

into a single output data stream within the claimed “integrated multimedia encoding system” and that that system 

transmits the data stream to other components of the 

larger computer system. E.g., ’250 patent, col. 3, ll. 14–19 

(“The output of the integrated multimedia encoding system 

120 is transmitted to a communications device 112 for 

transporting the encoded and multiplexed data or a storage 

medium 116 for storage of the program or transport stream 

data, or a decoder for decoding the data for playback.” (emphases added)); id. col. 4 ll. 14–17 (“The combined stream 

data 224 is stored back into the unified memory module 

204. Bus 122 is used to access the combined stream data 

224 for transmission to other components of the system 

100.” (emphasis added)).

The ’250 patent’s description of its figures adds further

support for the district court’s construction. For example, 

the specification explains that, in Figure 2, which “illustrates the [claimed] integrated multimedia encoding system 120,” id. col. 3 ll. 23–24, “the combined stream data 

224 for transmission to other components of the system 

100.” Id. col. 4 ll. 15–17. Similarly, the specification explains that, as illustrated in Figure 1, “[t]he output of the 

integrated multimedia encoding system 120 is transmitted 

to a communications device 112 for transporting the encoded and multiplexed data or a store medium 116 for storage of the program or transport stream data, or a decoder 

for decoding the data playback.” Id. col. 3 ll. 14–19. The 

specification also describes Figure 7 as showing “the data 

224 . . . temporarily [being] written back to memory 204, 

for later transfer to the communications device 112, or 

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WI-LAN INC. v. SHARP ELECTRONICS CORPORATION 21

other recipient of the Program or Transport Stream 224.” 

Id. col. 6 ll. 23–26 (emphasis added). In each of these examples, the output multimedia data stream is being output 

from the integrated multimedia encoding system. The district court’s construction of “output multimedia data 

stream” as a “combined audio and video stream that are 

output from the system” was correct.

Next, we address the construction of “a multimedia 

processor, coupled to the data rate analyzer.” The district 

court construed this limitation to mean “a multimedia processor connected to the data rate analyzer, where the multimedia processor is separate from, and not a subcomponent of, the data rate analyzer.” J.A. 70. The district 

court’s construction was based on the patent’s consistent 

use of “coupled” “to refer to components that are not subcomponents of each other” and “in” “to refer to components 

that could be sub-components of each other.” J.A. 71. 

Wi-LAN asserts that the district court “incorrectly limited 

the plain meaning of the term ‘couple’—i.e., ‘connected’—

by further requiring ‘the multimedia processor [to be] separate from, and not a sub-component of, the data rate analyzer.’” Appellant’s Br. 63 (quoting J.A. 70). Further, 

Wi-LAN contends that the district court “improperly extracted a limitation from the specification based on exemplary embodiments without identifying evidence that the 

patentee intended the claims to be so limited, let alone evidence that would meet the strict standards for clear disavowal of claim scope.” Appellant’s Br. 64 (quoting J.A. 

70–71). We reject Wi-LAN’s arguments and conclude that

the district court’s construction of this limitation was correct.

CONCLUSION

For the reasons stated above, the district court’s judgment is affirmed.

AFFIRMED

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