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Wisconsin Alumni Research Foundation v. Apple Inc.

Asserting “Sometimes” Infringement Requires Proof Infringement Actually Occurred

Wisconsin Alumni Research Foundation v. Apple Inc.905 F.3d 1341 (Fed. Cir. Sept. 28, 2018) (PROST, Bryson, O’Malley) (W.D. Wis.: Conley) (2 of 5 stars)

Fed Cir reverses jury’s infringement verdict, affirms summary judgment of no anticipation. WARF’s patent related to techniques for improving the order in which a computer processor executes instructions. The district court erred by denying Apple’s JMOL of noninfringement. WARF’s claims required the making of predictions “associated with [a] particular instruction.” The opinion holds that “particular” instruction means a single instruction: “A prediction that is associated with more than one load instruction does not meet this limitation.” 905 F.3d at 1348. No reasonable juror could have found that Apple’s A7, A8, and A8X chips practice this limitation, as in these chips predictions are associated with all instructions bearing the same “tag.” The opinion acknowledges the possibility that a tag might be associated with a single instruction, and acknowledges that per Broadcom, 732 F.3d 1325 (Fed. Cir. 2013), this “sometimes” infringement might be enough to make Apple liable. But the record had “insufficient evidence to support WARF’s theory that Apple’s load tags are sometimes associated with a single load instruction.” 905 F.3d at 1349.

The district court did not err in granting summary judgment of no anticipation. Its narrow construction of “prediction” was consistent with the patent’s repeated use of the term, as per GPNE, 830 F.3d 1365 (Fed. Cir. 2016). And it rejects Apple’s proposed construction as inconsistent with any embodiment in the specification, citing Kinetic Concepts, 554 F.3d 1010 (Fed. Cir. 2009). The opinion also rejects Apple’s argument that there was a factual dispute as to whether its asserted prior art actually practiced a key limitation.

KEYWORDS: INFRINGEMENT (NO); CLAIM CONSTRUCTION; JUDGMENT AS A MATTER OF LAW; ANTICIPATION (NO)