United States Court of Appeals 

for the Federal Circuit ______________________ 

COMMSCOPE TECHNOLOGIES LLC, 

COMMSCOPE CONNECTIVITY LLC,

Plaintiffs-Appellants

v.

DALI WIRELESS INC.,

Defendant-Cross-Appellant

______________________ 

2020-1817, 2020-1818

______________________ 

Appeals from the United States District Court for the 

Northern District of Texas in No. 3:16-cv-00477-M, Chief 

Judge Barbara M.G. Lynn.

______________________ 

Decided: August 24, 2021

______________________ 

PHILIP P. CASPERS, Carlson, Caspers, Vandenburgh & 

Lindquist, P.A., Minneapolis, MN, argued for plaintiffs-appellants. Also represented by WILLIAM F. BULLARD, 

SAMUEL A. HAMER. 

 CHARLES HARDY DAVIS, Goldstein & Russell, P.C., Bethesda, MD, argued for defendant-cross-appellant. Also 

represented by ERIC F. CITRON; CRISTOFER LEFFLER, Folio 

Law Group PLLC, Lake Forest Park, WA. 

 ______________________ 
2 COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 

Before REYNA, SCHALL, and STOLL, Circuit Judges. 

STOLL, Circuit Judge. 

CommScope and Dali each appeal from the district 

court’s entry of judgment after it denied their motions for 

judgment as a matter of law, for a new trial, and for attorneys’ fees. This appeal and cross-appeal involve several 

patents and numerous issues regarding infringement and 

validity, but our opinion focuses on only two: infringement 

and validity of U.S. Patent No. 9,031,521. Although we 

have thoroughly considered the other issues raised by both 

parties, we affirm the district court’s determinations as to 

those issues without significant discussion. As to the 

’521 patent, for the reasons discussed below, we reverse the 

district court’s denial of JMOL of no infringement and affirm its denial of JMOL of invalidity.

BACKGROUND

CommScope Technologies LLC and CommScope Connectivity LLC (collectively, “CommScope”) filed suit 

against Dali Wireless Inc. (“Dali”) in the United States District Court for the Northern District of Texas alleging infringement of five of CommScope’s patents relating to 

telecommunications technology. Dali counterclaimed, alleging CommScope infringed two of Dali’s patents also relating to telecommunications technology. 

One of those asserted patents, the ’521 patent, is assigned to Dali and is titled “System and Method for Digital 

Memorized Predistortion for Wireless Communication.” 

This technology generally relates to wireless communications with portable equipment and handsets, such as mobile phones. ’521 patent col. 1 ll. 19–23; see also id. at col. 4 

ll. 18–23. Such devices often include a power amplifier to 

boost the signal. However, amplification can cause unintended distortions to the signal. Id. at col. 1 ll. 36–40, 

54–67. The ’521 patent resolves this problem through the 
COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 3

use of a feedback loop and lookup tables, as described below. 

Specifically, the ’521 patent describes a training mode 

(Fig. 3), in which the feedback loop runs and the lookup 

tables are updated, and an operating mode (Fig. 4), in 

which the “switch ON/OFF controllers” are turned off and 

the lookup table is no longer updated. Id. at col. 5 l. 55–

col. 7 l. 30. In training mode, the feedback loop on the bottom half of Figure 3 uses the output signal fed back from 

power amplifier 16 to calculate digital predistortion values 

that are stored in lookup tables 31 I & Q. 

Id. Fig. 3 (depicting training mode).1

These lookup table values are used in operating mode 

to intentionally “predistort” the signal before the signal is 

sent to the power amplifier in a way such that after the 

signal is amplified, it is not distorted. 

1 For the ’521 patent figures, we have included the 

versions from CommScope’s briefs, which are clearer versions of the figures than those in the ’521 patent. Compare 

Appellants’ Br. 9, with ’521 patent Fig. 3. 
4 COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 

Id. Fig. 4 (depicting operating mode), col. 6 ll. 27–41. 

Claim 1 of the ’521 patent recites: 

1. A method of operating a power amplifier, the 

method comprising:

initializing the power amplifier;

performing a training phase comprising:

establishing pre-computed distortion contributions based on pre-compensation training feedback signals representative of output of the 

power amplifier; and

storing the pre-computed distortion contributions in a lookup table; and

performing an operating phase comprising:

switching a controller off to disconnect signal 

representative of the output of the power amplifier; 

accepting an original value that reflects information to be communicated;

generating a digital lookup table key based on 

the original value;

retrieving from the lookup table, using the digital lookup table key, a corresponding pre-
COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 5

computed distortion contribution for the original value;

distorting the original value based on the corresponding pre-computed distortion contribution to obtain a distorted value to precompensate for the nonlinear characteristics of 

the power amplifier; and

wirelessly transmitting a pre-distorted signal 

based on the distorted value.

Id. at col. 10 l. 47–col. 11 l. 4 (emphasis added to disputed 

limitation). 

Dali accused CommScope’s FlexWave Prism distributed antenna system (FlexWave) of infringing the ’521 patent. According to CommScope, this system is installed on 

telephone poles to extend wireless coverage. Appellants’ 

Br. 12. Similar to the ’521 patent, the FlexWave system 

analyzes a feedback signal from a power amplifier to calculate predistortion. Unlike the ’521 patent, the FlexWave 

uses two power amplifiers. The dispute between the parties centers on the FlexWave’s selector switch (labeled 

“SW” in the figure below), which continuously chooses between feedback signals from the two power amplifiers for 

calculating predistortion values: 
6 COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 

Id. at 14 (depicting the accused FlexWave).

The claim limitation at the center of the parties’ infringement dispute is the first step in the claimed “operating phase”: “switching a controller off to disconnect signal 

representative of the output of the power amplifier.” 

’521 patent col. 10 ll. 57–58 (emphasis added). The district 

court construed this term to mean “[s]witching a controller 

to a nonoperating state to disconnect signal representative 

of the output of the power amplifier.” CommScope Techs. 

LLC v. Dali Wireless, Inc. (Claim Construction Order), 

No. 3:16-cv-477, 2017 WL 6549933, at *12 (N.D. Tex. Dec. 

19, 2017). 

At trial, CommScope argued that three pieces of prior 

art anticipated the asserted claims of the ’521 patent—
COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 7

Wright,2 Bauder,3 and Khan.4 Wright is particularly relevant to our decision on appeal. 

Like the ’521 patent, Wright discloses a system for digital predistortion that uses a feedback signal from a power 

amplifier to calculate predistortion values. Like the accused FlexWave device, Wright’s system includes multiple 

power amplifiers (601—N) and a switch (Multiplexer 

(“MUX”) 106) that selects one of the feedback signals from 

one of the power amplifiers. 

2 U.S. Patent No. 6,587,514.

3 U.S. Patent Application Publication 

No. US 2003/0035494. 

4 U.S. Patent No. 5,959,499.
8 COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 

Appellants’ Br. 39 (citing Wright Figs. 33A, 33B).

The jury rendered a verdict of infringement, no invalidity, and damages for both CommScope and Dali. The 

district court denied both parties’ motions for JMOL, denied CommScope’s motion for a new trial, denied 

CommScope’s request for attorneys’ fees, and entered judgment. 

CommScope appeals and Dali cross-appeals. We have 

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

DISCUSSION

This court reviews the denial of a motion for JMOL under regional circuit law, here, Fifth Circuit law. Rembrandt 

Wireless Techs., LP v. Samsung Elecs. Co., 853 F.3d 1370, 

1378 (Fed. Cir. 2017) (citation omitted). The Fifth Circuit 

reviews a denial of a motion for JMOL de novo, asking 

whether a “reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” 

Id. (quoting Cambridge Toxicology Grp. v. Exnicios, 

495 F.3d 169, 179 (5th Cir. 2007)). 

I 

We turn first to the jury’s findings of infringement and 

no anticipation of the ’521 patent. Although the questions 

of infringement and anticipation are separate inquiries, 

the two are related. As the Supreme Court has stated, 

“[t]hat which infringes, if later, would anticipate, if earlier.” Peters v. Active Mfg. Co., 129 U.S. 530, 537 (1889); 

see also Lewmar Marine, Inc. v. Barient, Inc., 827 F.2d 744, 

747 (Fed. Cir. 1987); Dow Chem. Co. v. Astro-Valcour, Inc., 

267 F.3d 1334, 1339 (Fed. Cir. 2001); Ecolab, Inc. v. FMC 

Corp., 569 F.3d 1335, 1348 (Fed. Cir. 2009). 

“A determination of infringement is a question of fact 

that is reviewed for substantial evidence when tried to a 

jury.” ACCO Brands, Inc. v. ABA Locks Mfr. Co., 501 F.3d 

1307, 1311 (Fed. Cir. 2007) (citing TI Grp. Auto. Sys. 
COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 9

(N. Am.), Inc. v. VDO N. Am., L.L.C., 375 F.3d 1126, 1133 

(Fed. Cir. 2004)). Whether an accused device infringes requires a two-step analysis—the court first “determines the 

scope and meaning of the patent claims asserted, and then 

the properly construed claims are compared to the allegedly infringing device.” Interactive Pictures Corp. v. Infinite Pictures, Inc., 274 F.3d 1371, 1376 (Fed. Cir. 2001) 

(quoting Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 

1454 (Fed. Cir. 1998) (en banc), abrogated on other grounds 

by Teva Pharms. USA, Inc. v. Sandoz, Inc., 789 F.3d 1335 

(Fed. Cir. 2015)).

Anticipation, likewise, is a question of fact that we review for substantial evidence. Enplas Display Device Corp. 

v. Seoul Semiconductor Co., 909 F.3d 398, 406 (Fed. Cir. 

2018). “A determination that a patent is invalid as anticipated under 35 U.S.C. § 102 requires that a prior art reference disclose every limitation of the claimed invention, 

either explicitly or inherently.” Liebel-Flarsheim Co. 

v. Medrad, Inc., 481 F.3d 1371, 1381 (Fed. Cir. 2007) (citation omitted). 

On appeal, CommScope argues that substantial evidence does not support the jury’s finding that CommScope’s 

FlexWave infringes Dali’s ’521 patent. Specifically, 

CommScope argues that Dali failed to present evidence 

proving that the FlexWave meets the district court’s construction of the claim term “switching a controller off.” We 

agree and therefore reverse. Following this same logic, we 

leave undisturbed the jury’s finding that Wright does not 

anticipate the challenged claims of the ’521 patent.

A 

Looking to the first step of the infringement inquiry 

(claim construction), Dali argued to the district court that 

the claim term “switching a controller off” meant “[s]witching a controller to an off status.” Claim Construction Order, 2017 WL 6549933, at *12. Dali asserted that the term 

“off” did not require further definition. Id. CommScope, on 
10 COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 

the other hand, proposed that the claim term meant 

“[s]witching a controller to a nonoperating state.” Id. The 

district court agreed with CommScope, noting that the “underlying dispute over this term is what switching ‘off’ does 

to the controller.” Id. In so holding, the district court drew 

a distinction between: (1) when the controller is turned off 

and (2) the effect on the system of turning the controller 

off. Id. The district court determined that this clarification 

was necessary to resolve the parties’ dispute. Id. (citing O2 

Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 

1351, 1361 (Fed. Cir. 2008)).

Dali fails to mount a meaningful appellate challenge to 

this construction. In a footnote, Dali argues that 

“CommScope’s premise that the controller itself must be 

turned ‘off’ is . . . literal nonsense,” Cross-Appellant’s 

Br. 44 n.10, which suggests that the district court’s construction of “switching a controller to a nonoperating state” 

is also “nonsense.” The reason for this is, in Dali’s view,

“because something needs to turn the switch back on each 

time the system goes back to the training phase, and that 

something is the controller.” Id.

There are several reasons to reject this opaque challenge by Dali. First, an argument that is only made in a 

footnote of an appellant’s brief is forfeited. SmithKline 

Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319–20 

(Fed. Cir. 2006) (citations omitted). Second, even if the argument were in the body of the brief, it is insufficiently developed. See Monsanto Co. v. Scruggs, 459 F.3d 1328, 1341 

(Fed. Cir. 2006) (“In order for this court to reach the merits 

of an issue on appeal, it must be adequately developed.” 

(citations omitted)); Game & Tech. Co. v. Wargaming Grp. 

Ltd., 942 F.3d 1343, 1350 (Fed. Cir. 2019) (determining 

that an issue was forfeited where appellant raised it “only 

[in] one paragraph” in which appellant “fail[ed] to address, 

let alone show, any specific errors in the Board’s findings”). 

Finally, and most importantly, it is irreconcilable with

Dali’s statements in other portions of its brief: 
COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 11

(1) asserting that the district court’s construction is “unchallenged,” Cross-Appellant’s Br. 44; and (2) applying the 

construction in the context of invalidity, id. at 47 (“[c]laim 

1 of the ’521 Patent requires a controller that . . . places itself . . . in a non-operating state”). Seeing no meaningful 

challenge, we adopt the district court’s construction requiring the controller itself to be turned to a “nonoperating 

state.” We thus consider whether substantial evidence 

supports the jury’s finding that the FlexWave infringes

claim 1 under this construction. 

B 

We turn next to the second step of the infringement inquiry. The key evidence Dali relies on as supporting its 

contention that the FlexWave meets the claim as properly 

construed is the following testimony of its expert, Dr. Kenney: 

[A.] . . . So the first step in this operating phase is 

to switch a controller off. And the [district court] 

define[d] that [to] mean[] placing the controller in 

a non-operating state so that you disconnect the 

signal from the output of the [power amplifier]. So 

in a sense you turn the feedback off.

And the [internal] documents show a switch. This 

is the simplest schematic I could find. And I have 

circled it in red there. And various other schematics show that switch as well. So it meets this limitation.

Q. And what did you identify as the switch?

A. Well, the actual switch circuit is a series of transistors that switch the actual RF signal on and off. 

And it is also associated with a logic that controls 

it that is on the [Field Programmable Gate Array], 

all those things being on the [motherboard]. 
12 COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 

J.A. 28011 (Trial Tr. 61:4–17 (Vol. 5-B)) (emphases added). 

The district court also relied principally on this testimony 

in denying JMOL of noninfringement on this issue. J.A. 14 

(quoting J.A. 28011).

The switch that Dr. Kenney circled in red is shown below: 

Appellants’ Br. 20 (annotating J.A. 30065). 

There is some dispute on appeal regarding Dali’s mapping of the claimed “controller” to the accused FlexWave

device. It is unclear from the key portion of Dr. Kenney’s 

testimony (quoted above) which elements of the accused device he was mapping to the claimed “controller.” It seems 

reasonable to say that he was pointing to the switch “SW” 

as the controller, as CommScope argues, but it is also possible that he was pointing to the “logic that controls [the 

switch] on the FGPA,” as CommScope also recognizes as a 

possibility, or some combination of the two, as Dali asserts 

on appeal. In his cross examination, Dr. Kenney appears 
COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 13

to have supported the combination mapping, stating that 

“what [he] described [on direct examination was] a switch 

and a controller.” J.A. 28047–48 (Trial Tr. 27:25–28:15

(Vol. 6-A)). 

In any case, we need not decide which mapping was 

presented below because Dali points to no evidence showing that any of the following are put in a “nonoperating 

state” in the accused FlexWave: (1) the switch itself, 

(2) the controller itself, or (3) the combination of the switch 

and the controller. The key portion of Dr. Kenney’s testimony above never states that either the switch or the controller is rendered “nonoperating.” Rather, the testimony 

points to the result that “you turn the feedback off” rather 

than the specific mechanism claimed to achieve that result—“switching a controller off.” This testimony from 

Dr. Kenney thus does not provide substantial evidence to 

support the jury’s finding that the FlexWave meets the district court’s claim construction.

Not only was there a lack of evidence to show that the 

accused product met the proper construction of the claims, 

there is unrebutted evidence showing the opposite. 

CommScope points to the testimony of its expert, Dr. Wood, 

who testified that both the switch and the controller are 

continuously operating in the accused FlexWave. Appellants’ Br. 29–33 (citing J.A. 28252–53, 28255–56 (Trial 

Tr. 83:6–24, 84:2–4, 84:13–17, 86:12–18, 87:3–6 (Vol. 

6-B))). Critically, Dali did not contest Dr. Wood’s understanding of how the FlexWave operates, stating flatly: 

“Dr. Kenney did not disagree with how Dr. Wood described 

the FlexWave and instead explained why that operation 

does infringe.” Cross-Appellant’s Br. 41. Accordingly, substantial evidence does not support the jury’s finding that 

the FlexWave met the limitation “switching a controller 

off” as properly construed.

On appeal, Dali labels the distinction described above

as “hair-splitting” and argues it is irrelevant in light of the 
14 COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 

purpose of the invention, which is focused on calculating 

digital predistortion for a single power amplifier. CrossAppellant’s Br. 40–43. To focus on this “single power amplifier,” Dali emphasizes the second portion of the key 

claim limitation—“switching a controller off to disconnect 

signal representative of the output of the power amplifier.” 

According to Dali, substantial evidence supports the jury’s 

verdict because Dr. Kenney testified that the FlexWave

“controller operated to turn the switch on and off from the 

perspective of any one [power amplifier].” Cross-Appellant’s Br. 39–43 (citing J.A. 28011). We reject this argument.

First, in a literal infringement case, as we have here, 

the meaning ascribed to the claims is significant. The burden is on a patent owner to show that “the properly construed claim reads on the accused device exactly.” Engel 

Indus., Inc. v. Lockformer Co., 96 F.3d 1398, 1405 (Fed. Cir. 

1996) (citation omitted). CommScope’s reliance on the 

claim terms as construed by the district court is not “hairsplitting,” as Dali argues, but instead properly shows that 

Dali failed to meet its burden at the district court and that 

no reasonable jury could have found otherwise.

Second, regarding Dali’s “single power amplifier” argument, Dali simply ignores the claim requirement that the 

controller itself is rendered “nonoperating.” Instead, it argues with respect to the FlexWave device that even though 

“the controller, at a system-wide level, is continuously operating, it goes into a ‘nonoperating’ state for each specific 

[power amplifier] during that [power amplifier]’s operating 

phase.” Cross-Appellant’s Br. 44. Dali’s admission that the 

FlexWave controller is “continuously operating,” however, 

is fatal to its argument on appeal. Before the district court, 

Dali presented only a literal infringement case, and not a 

doctrine-of-equivalents alternative. J.A. 34018–19. Thus, 

Dali’s argument that the FlexWave switch/controller is effectively “nonoperating” because it is not passing a feedback signal of the power amplifier of interest is irrelevant 
COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 15

because Dali failed to produce evidence below to show that 

the accused controller is literally nonoperating, as the district court determined was required by the claim.

Furthermore, we agree with CommScope that this argument cannot stand in light of Dali’s arguments of no anticipation by Wright. Dali does not contest that Wright’s 

MUX is a multi-selector switch that can have “N” number 

of connections. Appellants’ Reply Br. 10; see generally 

Cross-Appellant’s Br. 46–49. Nor does it contest that when 

the number of connections is two, Wright’s MUX operates 

exactly like the selector switch in the FlexWave. Appellants’ Reply Br. 10; see generally Cross-Appellant’s Br. 

46–49. Instead, in its defense of the jury’s no invalidity 

verdict, Dali amplifies the significance of the “nonoperating” requirement, highlighting Dr. Kenney’s testimony 

that Wright’s MUX “also has to have a controller, and you 

have to put that controller into a non-operating state. 

That’s not . . . disclosed in Wright.” J.A. 28358 (Trial 

Tr. 58:15–18 (Vol. 7)); Cross-Appellant’s Br. 47 (quoting 

this portion of the testimony).5

Dali cannot simultaneously argue: (1) that the 

FlexWave infringes by using a switch that is effectively 

nonoperating for a single power amplifier when feeding 

back the signal for the other power amplifier, and (2) that 

Wright does not anticipate, given it has a switch that operates identically to select feedback from multiple power 

5 Dali also attempts to distinguish Wright on appeal 

on the basis that Wright’s MUX uses “capture buffers.” 

Cross-Appellant’s Br. 47. CommScope correctly responds 

that this “capture buffer” teaching—which only appears in 

two paragraphs of Wright, J.A. 32309 (col. 51 ll. 20–54)—

is an ancillary teaching regarding an “alternative approach” on which CommScope did not rely. Appellants’ Reply Br. 9–10. No reasonable jury could have found this to 

be a proper basis for distinguishing Wright.
16 COMMSCOPE TECHNOLOGIES LLC v . DALI WIRELESS INC. 

amplifiers. This incongruity is most apparent when comparing Dali's description of the claim's requirements for infringement versus invalidity: 

Infringement Invalidity 

"CommScope's premise "Claim 1 of the '521 P atent 

t hat the controller itself r equires a controller that 

must be turned 'off is also controls a switch and 

literal nonsense, because places itself and the switch 

something needs to tur n in a non -oper a ting stat e in 

t he switch back on each order to disconnect the 

time t he syst em goes back [power amplifier] output 

to the tr aining phase, and from t he training circuit ." 

t hat something is the con- troller." Cross-Appellant's Br. 4 7. 

Cross-Appellant's Br. 44 

n.10. 

This case falls squarely wit hin the principle that a "pat ent may not, like a nose of wax, be twist ed one way to 

avoid anticipation and another to find infringement ." Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 

1351 (Fed. Cir. 2001) (cleaned up). vVe ther efor e reverse 

the district court's denial of CommScope's motion for J MOL 

of no infringement of the '521 patent and affirm t he denial 

of CommScope's motion for JMOL of invalidity of t he 

'521 pat ent over Wright. 

II 

CommScope's additional arguments for reversal regarding the '521 pat ent are unpersu asive. CommScope argues that Khan and Bauder each anticipat e the 

'521 pat ent, but its arguments are based on interpretations 

of the scope and cont ent of the prior art (a fact-intensive 

inquiry) t hat conflict wit h those given by Dali's expert at 

trial. The jury was entitled to consider both parties' 
COMMSCOPE TECHNOLOGIES LLC v. DALI WIRELESS INC. 17

experts’ testimony and choose to credit Dali’s expert over 

CommScope’s in this regard. We will not disturb this 

weighing of the evidence on appeal. 

We have also considered each of CommScope’s arguments regarding U.S. Patent No. 9,531,473, including 

CommScope’s arguments challenging the district court’s 

denial of CommScope’s motion for JMOL regarding written 

description and enablement, anticipation, obviousness, 

and infringement of the ’473 patent, as well as 

CommScope’s motion for a new trial on the ’473 patent. Additionally, we have considered Dali’s arguments on crossappeal regarding written description and enablement of 

CommScope’s asserted patents. We discern no error in the 

district court’s rulings on any of these issues. 

Finally, regarding attorneys’ fees, because the district 

court’s reasoning remains intact on the issue of prevailing 

party, J.A. 29, we see no need to remand for reconsideration of the district court’s denial of attorneys’ fees. 

CONCLUSION

For the reasons stated above, we reverse the district 

court’s denial of CommScope’s motion for JMOL of no infringement of the ’521 patent and affirm the judgment of 

the district court in all other respects. 

AFFIRMED-IN-PART AND REVERSED-IN-PART

COSTS

No costs.