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

______________________ WI

- LAN, INC., Plaintiff

- Appellant

v. APPLE INC., Defendant

- Cross Appellant

______________________ 2014

- 1437,

- 2014

- 1485

______________________ Appeals from the United States District Court for the Eastern District of Texas in No s . 2:11

- cv - 00068

- JRG, 2:12

- cv - 00600

- JRG, Judge J. Rodney Gilstrap.

______________________ Decided: January 8, 2016

______________________ R OBERT A. C OTE , McKool Smith, P.C., New York, NY, argued for plaintiff

- appellant. Also represented by S AMUEL F RANKLIN B AXTER , Marshall, TX; J ASON B LACKSTONE , R ICHTER D ARRYL B URKE , S ETH R. H ASENOUR , R OSEMARY T. S NIDER , Dallas, TX; D IRK D. T HOMAS , Washington, DC.
M ARK S. D AVIES , Orrick, Herrington & Sutcliffe LLP, Washington, DC, argued for defendant

- cross - appellant. Also represented by K ATHERINE M. K OPP , T. V ANN P EARCE , J R .; B RIAN P HILIP G OLDMAN , San Francisco, CA; W ILL M ELEHANI , Irvine, CA; S IDDHARTHA M. V ENKATESAN ,WI

- LAN , INC

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Menlo Park, CA; A NDREW D. S ILVERMAN , New York, NY; A SHLEE N. L IN , M IGUEL J ESUS R UIZ , M ARK C. S CARSI , Milbank, Tweed, Hadley & McCloy, LLP, Los Angeles, CA

.

______________________ Before R EYNA , W ALLACH , and H UGHES , Circuit Judges. R EYNA , Circuit Judge. Wi

- LAN , Inc. (“Wi

- LAN”) is the assignee of U.S. P atent No. RE37,802 (“’802 patent”) , which concerns a wireless data communication technique called “Multi

Code Direct

- Sequence Spread Spectrum ” (MC -DSSS). Wi

L AN asserts that the patented technique is embodied in several modern wireless communications standards

. On February 2, 2011, Wi

- LAN sued Apple Inc. (“A pple”) and other technology companies in the United States District Court for the Eastern District of Texas for i nfringing claims 1 and 10 of the ’802 patent by manufactu ring and selling products comply ing with various wide

area communication standards. A jury found that Apple did not infringe and that the claims are invalid. The district court denied Wi

- LAN’s motion for judgment as a matter of law (“JMOL”) and for a new trial with respect to infringement, but it granted Wi

- LAN’s motion for JMOL of no invalidity. Wi

- LAN appeals the trial court’s denial of JM OL and its motion for a new trial on in fringement , and Apple
cross - appeals the grant of JMOL of no invalid ity

. Because the jury’s ver dict of non

- infringement was supported by substantial evidence , we affirm the district court’s denial of JMOL as to non

- infringement. Because the trial court’s JMOL determination of no invalidity was based on a post

verdict reconstruction of the claims, we reverse the district court’s grant of JMOL of no invalidity.WI

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I. B ACKGROUND A. The Patented Technology Wireless communication devices use radio waves to communicate digital data by modulating the frequency , amplitude , or phase of those waves according to pre

established patterns. Each pattern communicates a respective “symbol” correspond ing to a given combination of bits. J.A. 3546. Devices that detect the radio waves
can observe and interpret the modulation patterns to recover the transmitted symbols

. “Direct

- Sequence Spread Spectrum” ( DSSS) is a prior art modulation technique that prevent s third parties from intercepting and interpreting radio communic ations. Using DSSS, a radio transmitter “spread s ” a signal across a band of frequencies by multiplying the signal against a pseudo

- random signal called “pseudo

- noise.” The pseudo

noise signal corre spond s to a particular code, such that a receiver with a corresponding code can “invert” (i.e., reverse) the spreading to recover the original signal. A third party scanning the spectrum would detect only what appears to be natural ambi ent noise, while the intended recipient could use the corresponding code to detect and decode the communication . A drawback of DSSS is that each communication occupies an entire band of frequency, which makes it difficult for multiple users to transmit data simultaneously. “Code Division Multiple Access” ( CDMA ) is another prior a rt modulation technique that address es the ban dwidth shortcomings of DSSS by allowing multiple users to transmit on the same band using different spreading code s
. Under CDMA, t he signals from the multiple users form a combined noise

- like signal, and e ach receiver can use its respective code to recover the communications intended for it from the combined signal.WI

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The ’802 patent discloses a “multi

- code” variation of DSSS ( MC -DSSS) , which enhances throughput by permi tting a single transmitter to utilize mult iple codes simu ltaneously. ’802 p atent col. 1 l. 66 – col. 2 l. 5. The specification describes two embodiments, corresponding to Figures 1 and 4 respectively.

The embodiment of Figure 1 includes: (1) a converter 10 for converting a stream of data symbols into multiple setsWI

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of N data symbols each , (2) a computing means 12 that operates on the set s of data symbols to produce “modula ted data symbols corresponding to an invertible rando mized spreading of the stream of da ta symbols ” and (3) a combiner 14 for combining the modulated data symbols for transmission. Id. Fig. 1, col. 4 ll. 1–7

. The computing means modulates each data symbol using a respective DSSS code , which may be derived using a series of mat hematical tran sforms, as shown in Figure 3. Id. col. 4 ll. 7– 12, col. 4 ll. 29

– 34

. The patent lists a dozen exemplary mathematical transforms, including the complex “ra ndomizer transform” of Figure 8. Id. col. 4 l. 66 – col. 5 l. 12. In the alternative embodiment of Figure 4, the co mputing means modulates the N data symbols by applying the transforms directly to the N data symbols rather than indirectly via the DSSS codes. Id. col. 4 ll. 38

– 43

. Asserted c laim 1 recites a transceiver for transmitting data using three components : 1. A transceiver for transmitting a first stream of data symbols, the transceiver comprising: a converter for converting the first stream of data symbols into plural sets of N data sy mbols each; first computing means for operating on the pl ural sets of N data symbols to produce mod ula t ed data symbols corresponding to an invertible randomized spreading of the first stream of d a ta symbols; and means to combine the modulated data symbols for transmission. T he claimed transceiver includes a “converter” for co nverting a stream of data symbols into multiple sets of data symbols, where each set includes N symbols. Second, the transceiver includes a “computing means” for operating on the sets to produce “modulated data symbols corr e-WI

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sponding to an invertible randomized spreading” of the original data symbols. Finally, the transceiver includes a “means to combine the modulated data symbols for transmission.” Asserted c laim 10, which depends on claim 1, adds means for receiving and decoding the dat a symbols. B. Procedural History The district court held a Markman hearing and issued two claim constructions relevant to this appeal. J.A. 18. First, t he district court construed “modulated data sy mbols” to mean “data symbols that have been spread by a spr eading code.” J.A. 62. In doing so, the court rejected Apple’s argument that the modulated data symbols must be randomized , explaining that “randomization is a desirable feature that is addressed by other claim la nguage, such as the term ‘invertible ran d omized sprea ding,’ which appears in Claim 1 . . . .” Id. Second, the district court adopted the parties’ agreed construction of

“ first computing means

. ” The parties agreed that the limitation is a means

- plus

- function element subject to 35 U.S.C. § 112 ¶6 , and that the corresponding structure is

“ element 12 of Figures 1 and 4, columns 2:6

– 10, 2:36

– 40, 2:58

– 62, 4:2

– 12 , and 4:35

– 44, and equivalents thereof

. ” J.A. 73. The agreed upon construction matched the construction of the same term issued by a different court in previous litigation between the parties

. WI

- LAN, Inc. v. Acer, Inc. , No. 2:07

- CV

- 473

- TJW, Dkt. No. 469 (E.D. Tex. May 11, 2010) (“ Acer ”). In that case, the court had rejected Wi

- LAN ’s proposal to construe the “first comp ut ing means” as additionally encom passing the exemplary transforms disclosed at col. 4 l. 66 – col. 5 l. 12, including the complex randomizer of Figure 8, because the tran sforms related to how the pseudo

- noise is generated rather than to any structure in the computing means . J.A. 1362 , 1364

. Wi

- LAN agreed to the Acer construction of the “first computing means” in this case and did not seek aWI

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construction that explicitly include d the additional structure

. At trial, Ap ple argued that it did not infringe because claim 1 requires randomizing the data symbols before combin ing them, and that Apple’s products perform the se steps in the reverse order (the “ordering requirement”)

. Claim 1 recites that the computing means must “produce modulated data symbols corresponding to an invertible randomized spreading” and that the converter must “combine the modulated data symbols.” Apple argued that because “ the modulated data symbols” refers back to the earlier

- recited “modulated data symbols correspon ding to an invertible randomized spreading ,” the data symbols to be combined must have already been rando mized

. J.A. 13. The parties agreed that Apple’s products randomize the data symbols only after combining them. Apple also argued that claims 1 and 10 are invalid b ecause several prior art publications , including a 1989 paper by Sasaki , 1 anticipated the asserted claims

. J.A. 10, 334. The parties agreed that the prior art references taught randomizing the modulated data symbols using
rea l multipliers (i.e., using a “ real randomizer” ) rather than using complex multi pliers (i.e., using a “ complex randomizer” ). 2 J.A. 1059 at 194:21

– 25; J.A. 1058 at 190:21

– 191:4. Apple ’s invalidity arguments consequently rested on the proposition that “the Court’s claim constru c1 Shingenobu Sasaki & Gen Marubayashi, A S tudy on the Code of Sequence for Parallel Spread

- Spectrum Data Transmission , Inst. o f Electronics, Info., and Commc’n . Engineers (IEICE) Technical Report, Vol. 89, no. 265 (Oct. 1989). 2 Complex multipliers are hardware structures that can multiply complex numbers, whereas real multipliers can multiply only real numbers.WI

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tion told us what the first computing means is, and it didn’t say complex r andomizer.” J.A. 1059 at 195:5

– 11. The jury found claims 1 and 10 of the ’802 patent i nvalid and not infringed. J. A

. 362, 364. Wi

- LAN moved for JMOL on bot h issues , and for a new trial on non

infringement

. J.A. 1197. Wi

- LAN argued that the court’s claim constructions precluded the ordering requirement underlying A pple’s non

- infringement defense . J.A. 11

- 15

. Wi

- LAN also argued that the prior art did not a nticipate the asserted claims be cause the prior art did not rando mize using complex multiplier s , which Wi

- LAN argued the asserted claims require . J.A. 5. The district court upheld the jury’s finding of non

infringement, and reversed on invalidity. J. A

. 16. Regarding non

- infringement, t he district court held that the ordering requirement was consistent with the court’s claim constructions and that a reasonable jury could have found non

- infringement under those constructions . J.A. 14. Regarding invalidity, the district court determined that, although its construction of computing means “does not specifically provide for a complex multipli er ,” a co mplex multiplier was nevertheless necessary because

“ expert witnesses from both sides agreed that complex mul tipliers are part of the structure of the ‘first comp uting means ’ as taught by the ’802 pa tent. ” J.A. 9

– 10. I t was undisputed that such multipliers w ere absent from the prior art

. Wi

- LAN appeals the denial of JMOL on non

infringement. Apple cross - appeals the grant of JMOL on no invalidity. II. S TANDARDS OF R EVIEW In reviewing a district court ’ s rulings on motions for JMOL or for a new trial, we apply regional circuit law

. Seachange Int ’ l, Inc. v. C

- COR, Inc. , 413 F.3d 1361, 1367

–WI

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68 (Fed. Cir. 2005) . The district court here sits in the Fifth Circuit. The Fifth Circuit “ reviews a motion for judgment as a matter of law de novo , applying the same legal standard as did the trial court. ” Ford v. Cimarron Ins. Co. , 230 F.3d 828, 830 (5th Cir. 2000) (internal citations omitted). The Fifth Circuit “ g rants great deference to a jury’s verdict and will reverse only if, when viewing the evidence in the light most favorable to the verdict, the evidence points so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at any contrary conclusion. ” Dresser

- Rand Co. v. Virtual Automation Inc. , 361 F.3d 831, 838 (5th Cir. 2004)

. The Fifth Circuit “ review[s] the district court's decision on a motion for a new trial for an abuse of discretion.” Hollybrook Cottonseed Processing, L.L.C. v. Am. Guarantee & Liab. Ins. Co. , 772 F.3d 1031, 1034 (5th Cir. 2014) . “T he standard for the district court to grant a new trial is whether the verdict is against the great weight of the evidence .” Whit ehead v. Food Max of Miss., Inc. , 163 F.3d 265, 270 (5th Cir. 1998)

. Anticipation and i nfringement ( both literal and under the doctrine of equivalents ) are questions of fact, which we review for substantial evidence wh en tried to a jury

. TI Grp. Auto. Sys. (N. Am.), Inc. v. VDO N. Am., L.L.C. , 375 F.3d 1126, 1133 (Fed. Cir. 2004)

. Claim construction is a legal issue that may be based on underlying findings of fact. Teva Pharm. USA, Inc. v. Sandoz, Inc. , 135 S. Ct. 83 1, 841 (2015). We therefore review a court’s constructions de novo and any underlying factual findings based on extrinsic evidence for clear error. Id.
II I. D ISCUSSION A. Non- Infringement On appeal, Wi

- LAN challenges the district court’s d enial of JMOL on non

- infringement on the grounds thatWI

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the district court’s claim constructions precluded the ordering requirement underlying Ap ple’s non

infringement defense

. Wi

- LAN argues that the district court expressly rejected the ordering requirement at clai m construction when it refused to construe “ modulated data symbols ” as necessarily randomized. J.A. 62. Wi

- LAN argues that, even with the ordering requirement, Apple’s products would still infringe under the d octrine of e quiv alents because it is undisput ed that the different order ings produce mathematically identical results. Claim construction beg ins with the words of the claim, which “must be read in view of the specification, of which they are a part .” Phillips v. AWH Corp. , 415 F.3d 1303, 1312

– 15 (Fed. Cir. 2005) (en banc) ; Vitronics Corp. v. Conceptronic, Inc. , 90 F.3d 1576, 1582 (Fed. Cir. 1996)

. Although courts are permitted to consider extrinsic ev idence , like expert testimony , such evidence is generally of less significance than the intrinsic record. Phillips , 415 F.3d at 1317 (citing C.R. Bard, Inc. v. U.S. Surgical Corp. , 388 F.3d 858, 862 (Fed. Cir. 2004)). Extrinsic evidence may not be used “to contradict claim meaning that is unambiguous in light of the intrinsic evidence.” Id. at 1324

. The text of the asserted claim s requires randomizing the modulated data symbols before combining them

. Claim 1 recites a computing means that “ produce[s] modulated data symbols corresponding to an invertible randomized spreading” and a means to combine that “combine[s] the modulated data symbols.” S ubsequent use of the definite articles “the” or “said” in a claim refer s back to the same term recited earlier in the claim. Bal dwin Graphic Sys., Inc. v. Siebert, Inc. , 512 F.3d 1338, 1342 (Fed. Cir. 2008)

. The term “ the modulated data symbols” therefore refers back to the randomized data symbols produced by the computing means in the second claim element

. Because the modulated data symbols in the second element are randomized upon being produced,WI

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those sa me modulated data symbols in the third element have already been randomized before they are combined

. The text of the claim thus requires producing randomized symbols and then combining those randomized symbols. The ordering requirement described above is co nsistent with the specification. E very embodiment di scussed in the specification randomizes the data symbols before combining them . For instance , Figures 1 and 4 both show combining as the final step, after computing means 12 operates on (i.e ., spread s and randomiz es ) the data symbols. No disclosure in the specification depicts or discusses the possibility of combining before randomizing. The intrinsic record is therefore clear that the asserted claims cover only structure that randomizes data symbol s in parallel before com bining them for transmission. Contrary to Wi

- LAN ’s argument, the district court did not explicitly reject the ordering requirement at claim construction . The district court reject ed only Apple’s argument that the unmodified term “modulated data symbols” must necessarily refer to randomized data symbols . J.A. 59

– 62. T he district court did so only b ecause the randomization requirement “is addressed by other claim language, such as the term ‘invertible ra ndomized spreading.’” J. A

. 59

– 62. E ven though generic “modulated data symbols” do not have to be randomized, the recited “modulated data symbols corresponding to an invertible randomized spreading ” do have be randomized. Because “ the modulated data symbols” refers back to these al ready

- randomized symbols, the claims impose the disputed ordering requirement. As the district court reiterated in its JMOL order , nothing in its construction precludes the ordering requirement. J. A

. 14. Wi

- LAN also argues that the ordering requirement i s inconsistent with dependent claim 4, which Wi

- LAN contends places the “means to combine” between theWI

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spreading and the randomizing steps

. We disagree. Claim 4 recites : 4. The transceiver of claim 1 in which the first computing means comprises:

a transforme r for operating on each set of data symbols to generate modulat ed data sy mbols as output, the modulated data symbols
corr e sponding to spreading of each data symbol over a separate code selected from a set of more than one and up to M codes, where M is the number of chips per code; and means to combine the modulated data symbols for transmission. Claim 4 thus recites that the first computing means include s both a transformer for spreading the symbols and a means to combine the symbols

. This config uration does not preclude the recited trans former, or any other component of the first computing means , from also ra ndomizing the data symbols before the y are combin ed

. Claim 4 is therefore consistent with an interpretation of claim 1 that requires a stru cture that randomizes the symbols before combining them

. In summary, the intrinsic record require s that the symbols be modulated according to an invertible rando mized spreading before being combined for transmission. Because Apple’s products do not random ize the symbols before combining them , the structure of those products is not ident ical to the disclosed structure, and Apple ther efore does not infringe the asserted claims

. Wi

- LAN argues that even if claim 1 requires a stru cture that random izes before co mbining, structure that performs these steps in the reverse order nevertheless infringes under the doctrine of equivalents because theWI

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resulting output of the two orderings is mathematically identical. We have recognized that the doctrine of equivalents may be applied to a means

- plus

- function limitation to afford that limitation a somewhat broader scope of equi valents than it would otherwise receive under § 112 ¶6. Ring & Pinion Serv. Inc. v. ARB Corp. , 743 F.3d 831, 835 (Fed. Cir. 2014) . Because the record contains no indic ation that the doctrine of equivalents is inapplicable here and because Apple has not so argued, we analyze i nfringement under that doctrine

. Infringement under the doctrine of equivalents requires the patentee to prove that the acc used device contains an equivalent for each limitation not literally satisfied. Catalina Mktg. , 289 F.3d at 812

. An element in the accused product is equiva lent to a claimed element if the differences between the two elements are “insubsta ntial” to one o f ordinary skill in the art. Warner

– Jenkinson Co. v. Hilton Davis Chem. Co. , 520 U.S. 17, 40 (1997). Substantial evidence supports the jury’s verdict that the order difference between Apple’s products and the claimed invention is not insubstantial. 3 App le’s expert, Dr. Acampora, testified that the processor in Apple’s products is “not equivalent structure” to the recited “computing means.” J. A

. 1052 at 167:6

– 7. He explained that the two structures are “fundamentally different because the order [of rand omizing and combining] is wrong.” J. A

. 1054 at 174:20

– 22. Dr. Acampora elabora t3 Though t he verdict form did not include a sep arate question specific to the doctrine of equivalents , J.A. 361, the district court instructed the jury on that doctrine, J.A. 384

– 387, and the verdict is the refore one of no i nfringement, either literally or un der the doctrine of equi valents

.WI

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ed that even though the different ordering s produce mathematically equivalent results , the y require structurally different hardware pipeline s to implement : [T]he order in which these multiplications are done, the spreading and the randomiza tion, does matter, because it – it affects the number of – the number of multipliers, the number of transistors th at are needed on the circuitry. In one case, you need a l ot more circuitry than you need in the se cond case. So that order really does matter. This is a design consideration. And the number of – the amount of circuitry that is needed is important, because the se ci r cuits, first of all, will take up space on the s il i con, on the chip itself, and the more complicated and larger that chip becomes, in general, the more power

- hungry it becomes. And in the cellular field, actually two things are very precious: Bandwidth spectrum and ba t tery. So anything you do to reduce the power drain is us eful, even if it’ s only a little bit. J. A. 1034 at 93:22

– 94:13. Wi

- LAN counters that the structural differences Dr. Acampora described were insubstantial , and it points to Dr. Acampora ’s testimony that in a configuration such as that found in Apple’s products, changing the order of operations would save as few as twenty transistors out of the millions found on the chip. J. A

. 1053

– 54. Wi

- LAN argues that such a slight modification is insubstantial and therefore cannot support a finding of non equivalence. Though Wi

- LAN’s argument has merit, we find it i nsufficient to disturb the jury’s verdict on substantial evidence review. On cross

- examination Dr. Acampora testified that one should not consider the magnitude of structural differences with respect to the entire chip, but only with respect to the portion of the chip used to pe r-WI

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form the relevant functionality. J. A

. 1054 at 173:10

– 14. He testified that b ecause that portion of the chip contains only a few hundred transistors, a savings of “20 out of a few hundred transistors” is “a big deal in wireless co mmunications.” Id. Moreover, Dr. Acampora testified that , as parallelism increases , the differences in hardware requirements between the two designs could be orders of magnitude greater than the twenty transistors discussed in his cross

- examination. J. A

. 1033

– 34 at 91:19

– 93:11. It was therefore reasonable for the jury to credit Dr. Acampora’s testimony and to conclude that a person of ordinary skill would have found the design differences not in substantial

. For the foregoing reasons, the jury’s verdict is neither unreasonable nor against the great weight of the ev idence. The district court’s denial of JMOL respecting
non - infringement was therefore p roper and its denial of a new trial on the issue was not an abuse of discretion. We affirm the district court’s denial s of both motions

. B. Invalidity T he district court vacated the jury’s verdict of invali dity because a reasonable jury should have underst ood that the first computing means must randomize the symbols using complex multipliers while the prior art used only real multipliers. J. A

. 5. While acknowledging that it s construction “does not specifically provide for a complex multiplier,” the district court nevertheless found such a component required because “throughout the trial, both sides took the position that the complex multiplier found in Figure 8 was necessarily included in the Court’s co nstruction.” J.A. 8

– 9. On a ppeal, Apple argues that the district court’s post

verdict addition of a complex multiplier requirement was a new claim construction, which the district court may not issue at the JMOL stage. We a gree.WI

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“[I] t is too late at the JMOL stage to argue for or adopt a new and more detailed interpretation of the claim language and test the jury verdict by that new and more detailed interpretation .” Hewlett

- Packard Co. v. Mustek Sys., Inc. , 340 F.3d 1314, 1321 (Fed. Cir. 2003)

. At the JMOL stage, the question for the trial court is limited to whethe r substantial evi dence supports the jury’s verdict unde r the issued construction

. Id. Here, the jury was instructed that the “first comp uting means” is the s tructure corresponding to “elements 12 of Figures 1 and 4, columns 2:6

– 10, 2:36

– 40, 2:58

– 62, 4:2

– 12, 4:35

– 44, and equivalents thereof.” J.A. 73. As the district court acknowledged , this construction “does not specifically provide for a complex multiplier.” J.A. 9. In fact, n othing in the cited portions of the specification refers to Figure 8 or even mentions complex multiplier s
. J.A. 7. Instead, the portion of the specification dealing with Figure 8 and the other exemplary transforms (i.e., col. 4 l. 66 – col. 5 l. 12) is absent from the construction. This absence is particularly conspicuous given that in Acer , Wi

- LAN had sought and failed to obtain a constru ction that included t he omitted material , and that it su bsequently consented to the omission in this case. When tested by the construction the court provided, it was reasonable for the jury to conclude that the “first comp uting means” need not include the complex multiplier o f Figure 8. Wi

- LAN argues that the trial court’s JMOL order was based , not on an impermissible reconstruction, but on a permissible clarification of the existing construction . Wi

LAN echoes the district court’s conclusion that expert testimony from both sides established that the complex multiplier of Figure 8 was implicit within the constru ction. Wi

- LAN notes that Apple’s expert, Dr. Acampora, agreed that “the randomizer transform in Figure 8 is part of the transforms that are in Figure 4 and Figure 1 o f the patent.” Therefore, Wi

- LAN argues, the district court’sWI

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clarification at JMOL only made explicit what was a lready implicit in the original construction

. We have recognized that a trial court may “adjust constructions post

- trial if the court merely e laborates on a meaning inherent in the previous construction.” Mformation Tech s. , Inc. v. Research in Motion Ltd. , 764 F.3d 1392, 1397 (Fed. Cir. 2014) . For example, in Cordis Corp. v. Boston Scientific , the district court construed the term “undulating” to mean “rising and falling in waves ,” but clarified in granting JMOL that the plural “ waves ” could not be met by a single “U” shape. 658 F.3d 1347, 1355

– 57 (Fed. Cir. 2011) (emphasis added)

. We held that clarific ation permissi ble because it only “made plain .

. . what should have been obvious to the jury.” Id. at 1356. This is not a case , however, where the inclusion of an implicit component should have been obvious to the jury. Contrary to the district court’s characterizations of the expert testimony , the parties clearly did not a gree that the claims required complex randomization . Dr. Acamp ora made clear that “the Court’s claim construction told us what the first computing means is, and it didn’t say complex randomizer.” J.A . 1059 at 195:9

– 11. Dr. Acampora’s entire invalidity theory rested on the premise t hat the claims do not require complex randomization . He testified that , “ Sasaki does not show complex randomi zing, just randomizing.” J.A. 1059 at 196:4 –5 ; see also J. A

. 1 059 at 194:21

– 25 (“[Sasaki] does not use a complex randomizer.”); J. A

. 1058 at 190:21

– 191:4. D espite the absence of the complex randomizer, Dr. Acampora test ified repeatedly that the Sasaki reference discloses the first computing means because it disclose s invertible randomized spreading using real randomizers. J. A

. 1037 at 106:19

– 21 ; J. A

. 1037 at 107:10

– 12; J. A

. 1038 at 111:11

- 13. The district court’s characterization of Dr. Acamp ora’s testimony as requiring a complex randomizer is clearly at odds with t hat witness’s testimo ny
. And e ven had Dr. Acampora opined that the invention’s computingWI

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means required a complex multiplier, the jury was i nstructed that it was “not required to accept that opinion,” and that “it is solely up to you to decide whether to rely upon that opinion or not.” J.A. 373. Dr. Acampora’s testimony did not require a reasonable jury to conclude that a complex multiplier was necessary
. In sum, the district court’s JMOL of no invalidity was based on a reconstruction of the claims that went far beyond clarifying a meaning inherent in the construction or making plain what should have been obvious to the jury. Instead, the post

- verdict reconstructi on altered the scope of the original construction and undermine d Apple’s invalidity case post

- verdict

. The only other argument Wi

- LAN raised at JMOL r especting invalidity was that Apple’s expert had failed to perform a structural comparison of the claime d structure and the prior art . J.A. 5, 1197. The district court rejected that argument , and Wi

- LAN has not appealed that reje ction . J.A. 7. Because the complex multiplier requirement was the only other basis on which the district court could have vacat ed the jury’s invalidity verdict, and because we reject that basis here , we reverse
. IV. C ONCLUSION For the reasons stated above, we affirm the district court ’s denial of JMOL and of a new trial with respect to
non - infringement , and we reverse the district court’s grant of JMOL of no invalidity

. AFFIRMED

- IN

- PART AND REVERSED

- IN

- PART C OSTS No costs.