NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

PARKERVISION, INC., A FLORIDA 

CORPORATION,

Plaintiff-Appellant

v.

QUALCOMM INCORPORATED, A DELAWARE 

CORPORATION,

Defendant-Cross-Appellant

______________________ 

2014-1612, -1655

______________________ 

Appeals from the United States District Court for the 

Middle District of Florida in No. 3:11-cv-00719-RBD-JRK, 

Judge Roy B. Dalton, Jr.

______________________ 

ON PETITION FOR REHEARING

______________________ 

Decided: October 2, 2015 

______________________ 

DONALD ROBERT DUNNER, Finnegan, Henderson, 

Farabow, Garrett & Dunner, LLP, Washington, DC, for 

plaintiff-appellant. Also represented by ERIK R. PUKNYS, 

Palo Alto, CA; JOSHUA WRIGHT BUDWIN, KEVIN LEE 
2 PARKERVISION, INC. v. QUALCOMM INCORPORATED

BURGESS, McKool Smith, PC, Austin, TX; DOUGLAS AARON 

CAWLEY, Dallas, TX.

TIMOTHY TETER, Cooley LLP, Palo Alto, CA, for defendant-cross-appellant. Also represented by BENJAMIN G.

DAMSTEDT, JEFFREY S. KARR, LORI R. MASON, STEPHEN C.

NEAL; JEFFREY A. LAMKEN, MARTIN TOTARO, MoloLamken 

LLP, Washington, DC; JOHN M. WHEALAN, Chevy Chase, 

MD. 

______________________ 

Before LOURIE, BRYSON, and CHEN, Circuit Judges.

BRYSON, Circuit Judge. 

ParkerVision seeks rehearing of our decision affirming the judgment of non-infringement as a matter of law. 

We deny the petition. 

In the panel opinion, we agreed with the district court 

that Dr. Prucnal’s admission that the baseband signal is 

created at the output of the mixer and before the storage 

capacitor is fatal to ParkerVision’s infringement case. 

ParkerVision contends that we misinterpreted Dr. Prucnal’s testimony: It now asserts that the signal coming out 

of the mixer is a “modulated” baseband, i.e., a baseband 

being carried on the carrier signal, while the real demodulated baseband is generated only when the switches are 

opened and the storage capacitors are discharged.1 

 

1 This is ParkerVision’s third attempt to explain away 

the inconsistencies in Dr. Prucnal’s testimony. In response to Qualcomm’s motion for judgment as a matter of 

law, ParkerVision raised the “two baseband signals” 

theory before the district court, as we noted in the panel 

opinion. See slip op. at 9-10. On appeal, ParkerVision 

disclaimed that theory and replaced it with the “one and 

the same point” argument, which we rejected in the panel 
 PARKERVISION, INC. v. QUALCOMM INCORPORATED 3

Further, ParkerVision claims that the accused products 

would be inoperable under our understanding of the 

technology, because a “sampling mixer” cannot downconvert without involving storage capacitors. Neither argument is persuasive.

 No evidence supports ParkerVision’s newly minted

theory that the signal coming out of the double-balanced 

mixer is not the baseband, but instead is a baseband 

being “modulated” or “carried” on the carrier signal. As 

noted in the panel opinion, Dr. Prucnal repeatedly identified the output of the mixer as the baseband, see, e.g., 

A10944:1-9 (identifying the output of the crisscrossed 

circuit structure shown on page A6992 to be “the baseband”); A11052:12-13 (identifying the “baseband output” 

of the mixer which is shown on A6992); A10988:8-14 

(agreeing that the “baseband was coming out of the mixer” shown on A6992); nowhere did he describe the mixer 

output as a baseband being “modulated” or “carried” on a 

carrier signal. Contrary to ParkerVision’s assertion, Dr. 

Prucnal admitted that the carrier signal (i.e., the RF 

signal) has been “eliminated” at the mixer output. See

A10949:2-11. 

ParkerVision seizes upon an exchange during trial in 

which Qualcomm’s attorney asked Dr. Prucnal to confirm 

that “the output of the mixer includes the baseband 

signal.” See Pet. at 6 (citing A10943:7-12). At most, that 

testimony suggests that something other than the baseband exists at the output of the mixer; it does not prove 

that the carrier signal is part of the output of the mixer,

 

opinion. See slip op. at 10-12. ParkerVision now concedes 

that it no longer relies on the “one and the same point” 

argument. See Pet. at 7-8 n.5. 
4 PARKERVISION, INC. v. QUALCOMM INCORPORATED

as ParkerVision asserts.2 As stated above, Dr. Prucnal 

admitted that the carrier signal has been “eliminated” at 

that point. Thus, no evidence supports ParkerVision’s 

“modulated baseband” theory. We accordingly reject its 

contention that we misinterpreted Dr. Prucnal’s testimony in that regard.

We also disagree with ParkerVision’s second argument that our understanding of the invention would lead 

to an inoperable device. The gist of the argument is that 

any downconverting mixer that “samples”—a limitation 

found to be met by the accused 25% duty-cycle products—

must necessarily work with capacitors to generate a 

baseband signal; in other words, a finding that the “sampling” limitation is met in a mixer means that capacitors 

must be involved in generating the baseband signal there. 

The purported relationship between the “sampling” 

limitation and the “generating” limitation is raised for the 

first time in the petition. The district court construed 

“sampling” to mean “reducing a continuous-time signal to 

a discrete-time signal,” and “generating” to have its plain 

and ordinary meaning. Neither of those constructions is 

disputed on appeal. To the extent ParkerVision now 

suggests that “sampling” means not only “reducing a 

continuous-time signal to a discrete time signal,” but also 

that the sampled energy must be processed by a capacitor,

this is a new claim construction argument “raised for the 

first time after trial” and thus is waived. See Broadcom 

Corp. v. Qualcomm Inc., 543 F.3d 683, 694 (Fed. Cir. 

2008). 

In any event, the record does not support ParkerVision’s assertion that any mixer that samples must neces-

 

2 In the panel opinion, we noted that unwanted 

“transmit jamming” signals exist at the mixer output, in 

addition to the baseband. See slip op. at 8. 
 PARKERVISION, INC. v. QUALCOMM INCORPORATED 5

sarily work with capacitors to generate a baseband signal. 

ParkerVision cites extensively to the patents at issue to 

support that proposition. Those citations, however, only 

establish that capacitors must be involved to generate a 

baseband signal in ParkerVision’s own inventions; they 

provide no support for the broad assertion that “sampling” 

always entails generating the baseband through a capacitor. 

ParkerVision next faults the court for not resolving 

the parties’ dispute regarding the location of the storage 

capacitors. See slip op. at 7 n.4. According to ParkerVision, should we agree that some capacitors are found 

inside the accused products’ mixers, we would have to 

conclude that those capacitors are involved in generating 

the baseband signal. As we explained before, however, 

even assuming some capacitors are located inside the 

mixer, Dr. Prucnal admitted that the baseband signal

precedes those capacitors as well. See A10944:1-9 (admitting the baseband signal exists before it reaches the 

capacitors shown on A6991); Appellant’s Reply Br. at 8-9 

(referring to capacitors shown on A6991 as “capacitors 

inside the mixer”); Pet. at 11 (same). Thus, resolving the 

dispute regarding the location of the capacitors in ParkerVision’s favor would not affect Dr. Prucnal’s opinion 

that the baseband exists before it reaches the capacitors

and would not prove that the capacitors inside the mixer, 

if any, are involved in generating the baseband signal. 

Finally, ParkerVision contends that we improperly

substituted our own credibility determination for the 

jury’s when we concluded that the jury’s verdict cannot be 

sustained based on Dr. Prucnal’s testimony. Dr. Prucnal 

gave two contradictory opinions regarding the role of the 

storage capacitors in generating the baseband signal, 

stating on one hand that the mixer-capacitor combination 

generates the baseband, and on the other hand that the 

mixer itself creates the baseband. ParkerVision argues 

that the jury is free to pick and choose from these two 
6 PARKERVISION, INC. v. QUALCOMM INCORPORATED

contradictory theories and that the jury’s decision in that 

regard is beyond the scope of our review. We disagree. 

It is true that when “there is an evidentiary basis for 

the jury verdict, the jury is free to discard or disbelieve 

whatever facts are inconsistent with its conclusion.” 

Lavender v. Kurn, 327 U.S. 645, 652 (1946). In fact, the 

finder of fact is normally free to believe a witness, even if 

that witness’s testimony is impeached and even if the 

witness’s “direct and cross-examination are not entirely 

consistent.” Presidio Components, Inc. v. Am. Tech. 

Ceramics Corp., 702 F.3d 1351, 1359 (Fed. Cir. 2012). 

The verdict, however, must be supported by “substantial 

evidence,” which means “such relevant evidence as a 

reasonable mind might accept as adequate to support a 

conclusion.” See Richardson v. Perales, 402 U.S. 389, 401 

(1971). 

When the party with the burden of proof rests its case 

on a witness’s unexplained self-contradictory testimony, 

the court, in appropriate cases, may conclude that the 

evidence is insufficient to satisfy that standard. See

Johns Hopkins Univ. v. Datascope Corp., 543 F.3d 1342, 

1348-49 (Fed. Cir. 2008) (despite expert’s opinion that the 

S-wire in the ProLumen device contacts the lumen in 

three dimensions, “no reasonable jury could have found 

that the ProLumen device literally met this limitation 

based on [the expert’s] opinion, given his contradictory 

testimony that the device only contacts the vessel in two 

places”); Doucet v. Diamond M Drilling Co., 683 F.2d 886,

892 (5th Cir. 1982) (“the self contradictory testimony of a 

single witness” did not satisfy the burden of establishing 

actionable negligence “when that statement is balanced 

against all the other uncontradicted evidence in this 

record”); cf. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 

795, 806 (1999) (“a party cannot create a genuine issue of 

fact sufficient to survive summary judgment simply by 

contradicting his or her own previous sworn statement . . . 

without explaining the contradiction or at least attempt-
 PARKERVISION, INC. v. QUALCOMM INCORPORATED 7

ing to resolve the disparity”). As the district court held, 

this is such a case.

ParkerVision bore the burden to prove that the storage capacitors in Qualcomm’s devices are involved in 

generating the baseband signal. Its expert first stated 

that the capacitors are involved in the generating process, 

but then admitted on cross-examination that the baseband signal already exists before the current reaches the 

capacitors. ParkerVision made no attempt to reconcile 

the two conflicting strands of its expert’s testimony. Nor

did it introduce any other evidence that might have 

supported the expert’s initial statement that the capacitors are involved in generating the baseband signal. 

Moreover, as the district court noted in its order granting 

judgment as a matter of law, the expert’s direct and 

redirect testimony was “notably vague when it came to 

the generating limitation”; in contrast, his testimony on 

cross-examination was “unequivocal” that the double 

balanced mixers create the baseband before the lower 

frequency signal reaches the capacitors. Based on the 

totality of the evidence at trial, we agree with the district 

court that no reasonable finder of fact could come to a 

confident conclusion that the capacitors have a role in 

generating the baseband. The district court was therefore 

correct in concluding that the jury verdict was not supported by substantial evidence.

The petition for rehearing is denied.