N OTE : This disposition is nonprecedential. 

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

______________________ PARKERVISION, INC., A FLORIDA CORPORATION, Plaintiff

- Appellant

v.

QUALCOMM INCORPORATE D, 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 -R BD

- JRK, Judge Roy B. Dalton

, Jr.

______________________
ON PETITION FOR REHEARING

______________________

Decided: October 2, 2015

______________________

D ONALD R OBERT D UNNER , Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, for plaintiff

- ap p ellant. Also represented by E RIK R. P UKNYS , Palo Alto, CA; J OSHUA W RIGHT B UDWIN , K EVIN L EEPARKERVISION , INC

. v. QUALCOMM INCORPORATE D 2

B URGESS , McKool Smith, PC, Austin, TX ; D OUGLAS A ARON C AWLEY , Dallas

, TX.

T IMOTHY T ETER , Cooley LLP, Palo Alto, CA, for d efendant

- cross

- appellan t. Also represented by B ENJAMIN G. D AMSTEDT , J EFFREY S. K ARR , L ORI R. M ASON , S TEPHEN C. N EAL ; J EFFREY A. L AMKEN , M ARTIN T OTARO , MoloLamken LLP, Washington, DC ; J OHN M. W HEALAN , Chevy Chase, MD.

______________________

Before L OURIE , B RYSON , and C HEN , Circ uit Judges.

B RYSON , Circuit Judge

. ParkerVision seeks rehearing of our decision affir ming the judgment of non

- infringement as a matter of law. We deny the petition.
In the panel opinion, w e 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. Pru cnal’ 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 demod ulated base band 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 r esponse 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 s lip o p. at 9

- 10. On appeal, ParkerVision disc laimed that theory and replaced it with the “one and the same point” argument, wh ich we rejected in the panelPARKERVISION , INC

. v. QUALCOMM INCORPORATE D 3

Fu r ther, ParkerVision c laims that the accused products would be inoperable under our understanding of the technology, because a “sampling mixer” cannot downco nvert without involving storage capacitors. Neither arg ument is persuasive.

N o evidence supports ParkerVision’s new ly m inted 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 ident ified the output of the mixer as the baseband

, s ee, e.g. , A10944:1 -9 ( identifying the output of the crisscrossed circuit structure shown on page A6992 to be “the bas eband”); A11052:12

- 13 ( identifying the “baseband output” of the mixer which is shown on A6992); A10988:8

- 14 (agreei ng that the “baseband was coming out of the mi xer” sho wn on A6992) ; nowhere did he describe the mixer output as a baseband being “modulated” or “ carried ” on a carrier signal

. C ontrary to ParkerVision’s assertion, Dr. Prucnal admitted that the carrier sign al (i.e., the RF signal) has been “eliminated” at the mixer output. See A10949:2

- 11.

ParkerVision seizes upon a n 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, t hat testimony suggests that something other than the bas eband exists at the output of the mixer; i t does not prove that the carrier signal is part of the output of the mixer,

opinion. See s lip o p. at 10

- 12. ParkerVision now concedes tha t it no longer relies on the “one and the same point” argument. See Pet. at 7- 8 n.5.PARKERVISION , INC

. v. QUALCOMM INCORPORATE D 4

as ParkerVision asserts

. 2 As stated above, Dr. Prucnal admitted that the carrier signal has been “ eliminated ” at that point

. Thus, no evide nce supports ParkerVision’s “modulated baseband” theory . We accordingly reject its contention that we misinterpreted Dr. Prucnal’s testim ony in that regard.
We also disagree with ParkerVision’s second arg ument 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 “sa mpling ” 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 t he first time in th e petition . The d istrict 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
sugges ts 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 i s waived. See Broadcom Corp. v. Qualcomm Inc. , 543 F.3d 683, 694 (Fed. Cir. 2008)

. In any event, the record does not support ParkerV ision’s assertion that any mixer that samples must nece s-

2 In the panel opinion, we noted that unwanted “transmit jam ming” signal s exist at the mixer output, in addition to the baseband. See s lip o p. at 8.PARKERVISION , INC

. v. QUALCOMM INCORPORATE D 5

sarily work with capacitors to generate a baseband signal. ParkerV ision cites extensively to the patents a t 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 as sertion that “sampling” always entails generating the baseband through a capac itor.

ParkerVision next faults the court for not resolving the parties’ dispute regarding the location of the storage capacitors

. See s lip o p. at 7 n.4. According to ParkerV ision, 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. A s we explained before, however,

e ven assuming some capaci tors are l ocated in side the mixer, Dr. Prucnal admitted that the baseba nd signal precedes those capaci tors as well. See A10944:1

- 9 ( admi tting the baseband signal exists before it reaches the capaci tors shown on A6991); Appellant ’s Re ply Br. at 8- 9 (referring to capaci tors shown on A 6991 as “capacitors inside the mixer”) ; P et

. at 11 (same). Thus, r esolving the dispute regarding the location of the capacitors in Pa rkerVision’s favor would not affect Dr. Prucnal’s opinion that the baseband exists before it reaches the capaci tors 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 com bination generates the baseb and, and on the other hand that the mixer itself creat es the baseband. ParkerVision argues that the jury is free to pick and choose from these twoPARKERVISION , INC

. v. QUALCOMM INCORPORATE D 6

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).

Wh en 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

. S ee Johns Hopkins Un iv. 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 limita tion 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 g enuine issue of fact sufficient to survive summary judgment simply by contradi cting his or her own previous sworn statement . . . without explaining the contradiction or at least attemp t-PARKERVISION , INC

. v. QUALCOMM INCORPORATE D 7

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

, this is s uch a case.

ParkerVision b ore the burden to prove that the sto rage 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 admitt ed on cr oss

- examination that the bas eband 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

su pported the expert’s initial statement that the capac itors 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 th e 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. T he district court was there fore correct in concluding that the jury verdict was not su pport ed by substantial evidence.
The petition for rehearing is denied.