Full opinion text
ORDER ON REMEDY FOR FINDING OF WAIVER RUDI M. BREWSTER, Senior District Judge. I. INTRODUCTION On March 21, 2007, this Court entered an Order (1) finding in favor of Defendant Broadcom Corporation (“Broadcom”) and against Plaintiff Qualcomm Incorporated (“Qualcomm”) on Broadcom’s Third Affirmative Defense that U.S. Patent Nos. 5,452,104 (Pl’s Trial Ex. 1) (“the '104 patent”) and 5,576,767 (Pi’s Trial Ex. 3) (“the '767 patent”) are unenforceable due to waiver; and (2) setting hearing on an Order to Show Cause as to what the appropriate remedy for Qualcomm’s waiver should be. (Doc. No. 528 at 2.) Following hearing on the Order to Show Cause and careful consideration of relevant court and deposition transcripts, declarations, and other documents submitted by both parties, the Court hereby issues the following remedy for Qualcomm’s waiver: that the '104 and '767 patents, their continuations, continuations-in-part, divisions, reissues, or any other dependent or derivative patents of either patent, shall be and are hereby ordered unenforceable. II. BACKGROUND Qualcomm filed the present suit against Broadcom for patent infringement of the '104 and '767 patents on October 14, 2005, based on Broadcom’s manufacture, sale, and offers to sell H.264-compliant products. (Doc. No. 1.) Broadcom filed its First Amended Answer and Counterclaims on December 8, 2006, in which it alleged (1) a counterclaim that the '104 patent is unenforceable due to inequitable conduct; and (2) a Third Affirmative Defense that the '104 and '767 patents are unenforceable due to waiver. (Doc. No. 370.) A jury trial was held on the legal issues from January 9, 2007, to January 26, 2007. The jury unanimously returned a verdict (1) in favor of Broadcom and against Qualcomm of non-infringement of the '104 and '767 patents; and (2) in favor of Qualcomm and against Broadcom for non-obviousness of the '104 and '767 patents. (Doc. No. 499.) The jury also unanimously returned an advisory verdict on the equitable issues: (1) finding by clear and convincing evidence in favor of Broadcom and against Qualcomm that the '104 patent is unenforceable due to inequitable conduct; and (2) finding by clear and convincing evidence in favor of Broadcom and against Qualcomm that the '104 and '767 patents are unenforceable due to waiver. (Id. at 14.) The Court held an evidentiary hearing on the equitable issues of inequitable conduct and waiver on February 9, 2007. On March 21, 2007, the Court entered an Order: (1) finding in favor of Qualcomm and against Broadcom on Broadcom’s counterclaim of inequitable conduct as to the '104 patent; (2) finding in favor of Broadcom and against Qualcomm on Broadcom’s affirmative defense that the '104 and '767 patents are unenforceable due to waiver based on Qualcomm’s conduct before the Joint Video Team (“JVT”), the standards-setting body that created the H.264 standard; and (3) setting hearing on an Order to Show Cause as to what the appropriate remedy for Qualcomm’s waiver should be. (Doc. No. 528 at 2.) The Court conducted a hearing on its Order to Show Cause on June 25, 2007. After the verdict was entered, Broadcom again demanded discovery of Qualcomm’s records that previously had been concealed, but whose possible existence was only revealed during Broadcom’s cross-examination of Qualcomm witness Viji Raveendran on one of the last days of trial. Thereafter, after over three more months of denials, refusals, and opposition, Qualcomm reversed its position, allegedly to avoid further dispute over the matter, and produced on April 13, 2007, over 110,000 pages of emails, company correspondence, and memoranda, and on May 15, 2007, over 120,000 more pages, some of which have now been filed with the Court, none of which have been disputed by Qualcomm. III. DISCUSSION A. STANDARD OF LAW As the Court found in its March 21 Order, Broadcom has the burden of proving its affirmative defense of waiver and remedy therefor by clear and convincing evidence. (Doc. No. 528 at 13.) A district court may in its discretion hold a patent unenforceable in considering an affirmative defense of inequitable conduct by inventors and/or their agents before the United States Patent and Trademark Office (“PTO”), but the remedy depends on equitable considerations arising from the circumstances involved. See Refac Int’l, Ltd. v. Lotus Dev. Corp., 81 F.3d 1576, 1581, 1585 (affirming a finding of unenforceability based on an inequitable conduct affirmative defense and holding that a “district court must ... weigh the threshold findings of materiality and intent in fight of all the circumstances to determine whether they warrant a conclusion” of inequitable conduct). As the Court stated in its Order finding waiver, “[i]n that context, the Court here considers with respect to waiver the extent of the materiality of the omitted information and the circumstances surrounding [Qualcomm’s] omissions in connection with the proceedings in the JVT.” (Doc. No. 528 at 33.) While the Court is still unable to find, nor have the parties presented, case guidance for an equitable remedy to a finding of waiver by a patentee or assignee as an affirmative defense, it appears to the Court, as it stated in its Order, that “the remedy should not be automatic, but should be fashioned to give a fair, just, and equitable response reflective of [Qual-comm’s] offending conduct.” (Id.) The Court has not found a patent decision assessing the remedy for a finding of waiver based upon conduct of silence in the face of a duty to speak. The Rambus case, in which the Federal Circuit established the obligation to speak, did not involve a remedy for a breach of that obligation, because the party which allegedly violated the rule had not possessed intellectual property rights that read on or directly applied to the activities of the standards development process. See Rambus Inc. v. Infineon Techs. AG, 318 F.3d 1081, 1102-05 (Fed.Cir.2003). Therefore, this Court, by analogy to the available remedies for redressing inequitable conduct before the United States Patent and Trademark Office (“PTO”), holds that the remedy available here may vary from no remedy to declaring the involved patents totally unenforceable. Qualcomm argues that Broadcom may not have any remedies beyond itself, because it raised the waiver issue only by a separate affirmative defense and not by a counterclaim or cross-claim. This contention is without merit. The Federal Circuit has upheld the unenforceability of a patent to the world due to inequitable conduct before the PTO even when pled as an affirmative defense by the defendant. See McKesson Info. Solutions, Inc. v. Bridge Med., Inc., 487 F.3d 897, 908, 926 (Fed.Cir.2007); Semiconductor Energy Lab. Co., Ltd. v. Samsung Elecs. Co., Ltd., 204 F.3d 1368, 1372, 1378 (Fed.Cir.2000); Refac Int'l, Ltd. v. Lotus Dev. Corp., 81 F.3d 1576, 1578, 1585 (Fed.Cir.1996). Therefore, the Court finds that it may award remedy for a waiver affirmative defense beyond unenforceability only as to Broad-com. B. ANALYSIS 1. Overview of the Joint Video Team (“JVT”), related standards organizations, their Intellectual Property Rights (“IPR”) Policy and Guidelines, and Qualcomm In late 2001, the joint project JVT was launched by two parent standards bodies: (1) the Video Coding Experts Group (“VCEG”) of the International Telecommunication Union Telecommunication Standardization Sector (“ITU-T”) and (2) the Moving Picture Experts Group (“MPEG”) of the International Organization for Standardization (“ISO”) / International Electrotechnical Commission (“IEC”). (Defs Trial Ex. 5163 (JVT Terms of Reference [“ToR”]); Trial Tr., 267, Jan. 17, 2007.) The JVT was created to enhance standard video coding performance in the face of limited bandwith or storage capacity. As a joint project, the JVT would be able to more efficiently produce a single “technically aligned, fully interoperable” standard that would offer “the best possible technical performance under the practical constraints of being implementable on various platforms and for various applications.” (JVT ToR at 1.) According to the JVT ToR, JVT meetings are “open to, and contributions accepted from, all parties qualified for participation in meetings according to the rules of either parent body.” (JVT ToR at 3.) As sector members of the ITU-T, Qual-comm and Broadcom can “influence a great variety” of the activities of the Telecommunication Standardization Sector, including the JVT, by “presenting [their] views” and “participating actively.” Qualcomm and Broadcom must annually pay a minimum of 31,800 Swiss Francs (approximately $26,500) to enjoy the benefits of Sector Membership in the ITU-T, but may annually pay up to 2,544,000 Swiss Francs (approximately $2,4119,000), with higher contributions correlating to a higher class of sector member. The American National Standards Institute (“ANSI”) is the United States’ representative member in both the ISO and IEC, as the national body most representative of standardization and electrotechnical standardization, respectively, in the United States. As Company Members of ANSI, Qualcomm and Broadcom enjoy the privilege of “active participation in ANSI and its programs,” including the ISO and IEC and by extension the JVT, by paying annual dues ranging from $750 to $25,000 depending on their global sales revenue. Qualcomm has paid hundreds of thousands of dollars to ANSI and the ITU-T to reap the benefits of membership, including the entitlement to actively participate in the JVT and the creation of the H.264 standard. These standards organizations pool resources to efficiently create universal technology standards for the benefit of (1) the world through the advancement of technology and (2) companies worldwide such as Qualcomm through greater cross-platform product compatibility and therefore revenue. According to the JVT ToR, the JVT “progress[es] in compliance with the Intellectual Property Rights (“IPR”) policies and IPR reporting requirements and procedures of both [parent] organisations [sic]” regarding patent and copyright issues. (JVT ToR at 4.) More specifically, the JVT collects IPR information during the standardization process as follows: According to the ITU-T and ISO/IEC IPR policy, members/experts are encouraged to disclose as soon as possible IPR information (of their own or anyone else’s) associated with any standardization proposal (of their own or anyone else’s). Such information should be provided on a best effort basis. For collecting such information, JVT has decided to use it’s [sic] own Patent Declaration form — note that this is distinct from the ITU ISO IEC Patent Statement and Licensing Declaration that is to be submitted to the ISO Secretary General and ITU TSB Director when the contributed technology becomes part of the final standard. (JVT ToR at 9.) This language applies to Qualcomm, as a member of the ITU-T and participant in the JVT. In the sample Patent Disclosure Form included in the ToR, the JVT reiterates: JVT requires that all technical contributions be accompanied with this form. Anyone with knowledge of any patent affecting the use of JVT work, of their own or of any other entity (“third parties”), is strongly encouraged to submit this form as well. (JVT ToR at 12.) The JVT explains that form submissions should be made on “a best effort, good faith basis,” as “[t]he intent is that the JVT experts should know in advance of any patent issues with particular proposals or techniques, so that these may be addressed well before final approval.” (Id.) If the submitter has a patent “associated with the technical content” of the standard being created by the JVT, the submitter must indicate on the form whether it will: (1) grant royalty-free licenses to practice the patent; (2) grant licenses “on a worldwide, non-diseriminatory basis and on reasonable terms and conditions”; (3) grant royalty-free licenses on the condition that all other patent holders do the same; or (4) not grant any of the aforementioned licenses, in which case the standard will be designed so as not to cover the patent. (JVT ToR at 13.) As for the “ITU ISO IEC Patent Statement and Licensing Declaration” that must be submitted separately to the ITU and ISO before final approval of the standard being created by the JVT, “any party participating in the work of the ITU, ISO or IEC should” alert these bodies to the existence of patents “embodied fully or partly” in a standard under consideration. Patent holders submitting this form to the ITU and ISO have similar licensing options as offered by the JVT form above: they must (1) grant royalty-free licenses to practice their patent; (2) grant licenses “on a non-discriminatory basis on reasonable terms and conditions”; or (3) not grant any of the aforementioned licenses, in which case the standard will be designed so as not to cover the patent. This language also applies to Qualcomm, as a “party participating in the work of the ITU, ISO or IEC” by way of the JVT. As held by this Court in its March 21 Order and described in more detail below, (1) waiver of patent rights must be shown by clear and convincing evidence; (2) JVT participants treated the JVT IPR policies as imposing a duty to disclose patents that reasonably may be essential to practice the H.264 standard; (3) the '104 and '767 patents reasonably may be essential to practice the H.264 standard; (4) Qualcomm participated in the JVT as early as January 2002; (5) Qualcomm had knowledge that the '104 and '767 patents reasonably might be essential to practice the H.264 standard; and (6) therefore, Qualcomm had a duty to disclose the '104 and '767 patents to the JVT. However, instead of disclosing the '104 and '767 patents to the JVT and offering to license them royalty-free or under nondiscriminatory, reasonable terms during the development phase of the JVT work on the H.264 standard, Qualcomm closely monitored and participated in the development of the H.264 standard, all the while concealing the existence of at least two patents it believed were likely to be essential to the practice of the standard, until after the development was completed and the standard was published internationally. Then, without any prior letter, email, telephone call, or even a smoke signal, let alone attempt to license Broadcom, Qual-comm filed the instant lawsuit against Broadcom for infringement of the '104 and '767 patents, seeking damages and permanent injunction against Broadcom based on its development and manufacture of H.264 compliant products. Qualcomm sought to unfairly benefit from having subverted the standards-making process of the JVT and, as the Court found in its March 21 Order, waived its right to enforce the patents-in-suit. 2. The Court FINDS by clear and convincing evidence that Qual-comm participated in the JVT as early as January 2002 In the Court’s March 21 Order finding in favor of Broadcom on its affirmative defense of waiver, the Court had already found by clear and convincing evidence that Qualcomm participated in the JVT as early as September 2002. (Doc. No. 528 at 22.) However, with the new evidence produced by Qualcomm post-trial, the Court FINDS well beyond clear and convincing evidence that Qualcomm participated in the JVT as early as January 2002, well before the release of the H.264 standard in May 2003. The evidence unequivocally contradicts Qualcomm’s assertions at summary judgment, during trial, and at the post-trial hearing on waiver and inequitable conduct that it did not participate in the JVT until after May 2003. As early as January 2002, Qualcomm hired an outside consultant, Jordan Isailovic, to attend JVT meetings on Qualcomm’s behalf and to send reports to Qualcomm summarizing the progress of the JVT. For example, after ostensibly attending a JVT meeting in Geneva, Switzerland that took place from January 29 to February 1, 2002, Mr. Isaikmc sent an email to three Qualcomm employees, including Qualcomm’s initial Rule 30(b)(6) witness Christine Irvine, on February 11, 2002, with the subject heading “JVT Geneva Report,” stating the following: The Report on the JVT Geneva Meeting is included as an attachment. As you can see, the Report has many details. I hope that you and your team can get a good idea about JVT ... If you or any member of your team needs any of the documents mentioned in the Report, please let me know and I will get it. (Doc. 543-2, Ex. A, Tab 3 at 24, Tab 4 74.) Two days later on February 13, 2002, Ms. Irvine forwarded Mr. Isaikmc’s email to six other Qualcomm employees, including Qualcomm trial witness and senior staff engineering manager Viji Raveendran and Qualcomm deposition witness James Determan. (Id., Tab 5 at 77.) On February 25, 2002, Ms. Irvine forwarded by email over three pages of notes she took on her most recent JVT phone conference to fellow Qualcomm employees Raveendran and Jay Yun. (Id., Tab 7 at 83.) The next day on February 26, 2002, Ms. Raveendran sent an email to two Qualcomm employees with the subject heading “JVT mtg tomorrow” that stated, “Chris is going to the JVT mtg. and will be driving tomorrow.” (Id., Tab 8 at 88.) On March 5, 2002, Qualcomm consultant Isailovic sent an email to five Qualcomm employees, Ms. Irvine, Ms. Raveendran, Mr. Determan, John Ratzel, and Amnon Silberger with the subject heading “Requested Documents and Info” that stated in part as follows: John, Chris at all [sic], Here is the response to list of documents and info you requested today: 1. JVT, sw for the TML 9.x ... 2. MPEG Web site: ... 3. JVT, ABT example document: See the attachment ... 4. Contact information for the Thomson JVT expert who has software for the H.26L [working name for the standard that became H.264]: ... Let me know if you need anything else. Jordan (Id., Tab 9 at 90-91.) The following day on March 6, 2002, Mr. Isailovic sent another email to Qualcomm colleagues Irvine, Ratzel, Raveendran, Silberger, Determan, and Steve Morley, with the subject heading “JVT/H26L” and an attached file “jml7.zip” that stated: This may be the latest version (evaluable [sic]) ... PS: Chris, please forward this to the rest of the group; I don’t have all addresses. (Id., Tab 10 at 94.) Post-trial, Qualcomm produced at least 118 additional emails discussing the work of the JVT sent between (1) Qualcomm employees, including Ms. Irvine, Ms. Raveendran, and Mr. Determan; (2) Qualcomm consultant Isailovic; and/or (3) a Qualcomm email list “dc-system-eng” dated from March 11, 2002, to July 22, 2004. (Id., Tabs 12-129.) One hundred seven of these emails were sent before the H.264 standard was released in May 2003. (Id., Tabs 12-118.) Not only did Qualcomm consultant Isai-lovic attend JVT meetings as early as January 2002, Qualcomm employees have been attending JVT meetings “for a while” before April 2002, well before the H.264 standard was released in May 2003. Qual-comm employee Amnon Silberger wrote an email to four other Qualcomm employees, including Mr. Yun, on April 30, 2002, which stated: We have been attending these standard body meetings for a while now. These are the MPEG/JVT/JPEG meetings and the SMPTE meetings. To ease the load, all the system engineers in our group rotate in attending these (Chris, Jay, Viji, Jim Determan and myself). (Id., Tab 44 at 306.) Messrs. Yun and Silberger attended the May 2002 JVT meeting in Fairfax, Virginia. On May 8, 2002, Mr. Yun sent a three-page meeting report email to eight Qualcomm employees, including Ms. Irvine, Ms. Raveendran, Mr. Determan, and Mr. Silberger, with the subject header “WG11 (MPEG Fairfax-day 3)” that stated explicitly, “I’ve attended some JVT meetings and saw some demo (so did Amnon).” (Id., Tab 57 at 361.) Furthermore, Qualcomm voted on ballots affecting JVT as early as June 2002. On June 11, 2002, Mr. Yun wrote an email to Ms. Irvine, Ms. Raveendran, Mr. Silber-ger, and Mr. Determan stating the following: Below is an email ballot for L3.1 (USNB [United States National Body] for MPEG). It calls for an ad hog [sic] group to collect and generate comments on U.S. comments on JVT CD (Committee Draft). By not re lying to this email, we agree to the formation of the AHG [ad hoc group]. (Id., Tab 70 at 415.) Mr. Yun sent another email to those same four Qualcomm employees the same day, stating: One more email ballot from L3.1. This has two questions, the first one approves the REGISTRATION of JVT CD and the second one approves the CD with a conditional disapprove, which means that the USNB has some comments that it wishes to be reflected. I don’t see any reason we should disagree with the two questions. We need not do anything to do so. Let me know if any of you want to investigate this further and discuss. (Id, Tab 71 at 419.) Qualcomm’s post-trial production of documents directly and unequivocally exposes as blatantly false Qualcomm’s steadfast assertions at summary judgment, during trial, and at the post-trial hearing on waiver and inequitable conduct that it did not participate in the JVT until after May 2003. The Court FINDS well beyond clear and convincing evidence that Qual-comm participated in the JVT from as early as January 2002, even earlier than the Court originally found in its March 21 Order and, more importantly, well before the JVT released the H.264 standard in May 2003. Participation does not require submission of proposals, speeches, objections or leadership roles. The Court finds Qualcomm’s involvement to be vigorous participation — a difference appears to the Court to be the motive for participation— i.e., to insulate its IPR from the work of the JVT so as to preserve it for unilateral enforcement if that became possible after the H.264 standard was settled upon. 3. The Court FINDS by clear and convincing evidence that Qual-comm was aware as early as August 2002 that JVT participants treated the JVT IPR policies as imposing a duty to disclose patents that reasonably may be essential to the H.264 standard In the Court’s March 21 Order finding in favor of Broadcom on its affirmative defense of waiver, the Court found by clear and convincing evidence that JVT participants treated the JVT IPR policies as imposing a duty to disclose patents that reasonably may be essential to the H.264 standard. With the new evidence produced by Qualcomm post-trial, the Court now FINDS by clear and convincing additional evidence that Qualcomm was aware of this treatment by JVT participants as early as August 2002. In August 2002, Qualcomm consultant Isailovic forwarded an email to Qualcomm employees Ratzel, Determan, Irvine, Ra-veendran, Silberger, and Yun with the subject heading “Fwd: [jvt-ipr] Re: Face-to-Face JVT IPR Meeting.” (Doc. No. 543-2, Ex. A, Tab 92 at 529.) The body of the forwarded email stated in pertinent part: The future licensing terms [for H.264 / MPEG-4 AVC] will be defined by the holders of essential patents; at this time it is unknown who are these patent holders, so this needs to be determined first. The question is how. In my understanding, the objective is to invite “potential holders of essential patents” to the face-to face-meeting [sic] to discuss this issue. Therefore in my understanding the most important agenda point is the procedure to identify essential patent holders in an objective manner. (Id., Tab 92 at 530-31.) Then in September 2002, Mr. Isailovic forwarded another email to Qualcomm employees Morley, Ratzel, Determan, Irvine, Raveendran, Silberger, and Yun with the subject heading “Fwd: [jvt-ipr] Call for H.264 / MPEG-4 AVC [Advanced Video Coding] patents.” (Doc. No. 543-2, Ex. A, Tab 94 at 545.) The body of the forwarded email stated in pertinent part: This is to let you (as you may have noticed already that MPEG LA is calling for essential MPEG-4 AVC/ H.264 patents, with the aim to come to a joint license soon). (Id., Tab 94 at 546.) One month later in October 2002, Mr. Isailovic forwarded an email to Qualcomm employees Ratzel, Raveendran, Determan, Irvine, Silberger, and Yun, which Ms. Ra-veendran in turn forwarded to two other Qualcomm employees with the subject heading “Fwd: [jvt-ipr] Confirmation of JVT IPR meeting in Geneva.” (Doc. No. 543-2, Ex. A, Tab 97 at 567.) In the body of her email, Ms. Raveendran wrote, “FYI. Some information on licensing issues and IPR in JVT.” (Id.) The body of the forwarded email listed a suggested agenda for the JVT-IPR meeting open to all JVT and IPR experts at the Geneva JVT conference, which included (1) an “(ongoing) determination of essential patent holders” and (2) the “expected process once essential patent holders are identified.” (Id., Tab 97 at 568.) These three emails demonstrate that Qualcomm was aware as early as August 2002 that the JVT was actively attempting to identify holders of patents essential to the H.264 standard. Later, in September 2003, Qualcomm employee Harinath Garudadri wrote an email to another Qualcomm employee and a Qualcomm email list “multimedia.all” with his “notes from the first day of the JVT meeting.” (Id., Tab 120 at 682.) One of Mr. Garudadri’s bullet points was: IPR policies of [JVT parent body] VCEG and ITU. Gary said formal notification was required. List of IPR holders for H.264/AVC is in Appendix F of MPEG doc and ITU-T web site. Each contribution has the IPR statements at the end. (Id.) (emphasis added.) JVT chairman Gary Sullivan confirmed at trial that he delineated the IPR policy of the JVT at the beginning of every JVT meeting, and from Garudadri’s email, Qualcomm was aware at least by September 2003 that formal IPR notification was consistently requested of all IPR holders even if they did not make technical proposals. (Trial Tr., 43-44, Jan. 18, 2007.) Since, as established above, Qualcomm had been attending JVT meetings as early as January 2002 in which Mr. Sullivan routinely repeated this IPR policy at each meeting, the Court concludes that Qualcomm was well aware of the policy even earlier than that. Furthermore, amongst the documents Qualcomm produced post-trial was Philips International’s June 21, 2002, letter to the ISO International Technology Task Force accompanying its JVT Patent Disclosure form, which made it clear that Philips treated the JVT’s IPR policies as imposing a duty to disclose. (Doc. No. 543-2, Ex. A, Tab 74.) Under the subject heading “Re: JVT,” Philips wrote: In response to the RFTI [Request for Technical Information] made at the MPEG meeting May 6-10, 2002 we submit in the required JVT Patent Disclosure Form, a list of Philips’ patents which have been deemed necessary for the implementation of MPEG2 Video, and which have been deemed necessary for the implementation of the JVT Baseline and/or Main Profiles. Philips has made the listed patents available for implementation of the MPEG2 Video standard, in accordance with ISO IPR rules, on reasonable and non-discriminatory terms. To be consistent and to avoid discriminating against licensees under the MPEG2 Video standards, Philips is again prepared to make these patents available under reasonable and non-discriminatory terms for the JVT Baseline and Main Profiles. (Id., Tab 74 at 435) (emphasis added.) From this, Qualcomm was aware that JVT participant Philips viewed the JVT Patent Disclosure Form as “required” for patents “deemed necessary for the implementation of the JVT Baseline and/or Main Profiles.” Qualcomm was further aware that Philips was prepared to license its patents for the JVT standard “[t]o be consistent” with “[JVT parent] ISO IPR rules.” Later in this letter, expressing concern that “the JVT will not be in a position to take an informed decision on the feasibility of a royalty-free Baseline Profile,” Philips stated Video compression technology has attracted wide interest in the electronics industry for quite some years. As a consequence many patents and patent applications exist in many countries of the world covering not only the basics of compression technology, but also many varieties within such compression schemes. To our mind it is an illusion to assume[ ] that it would be possible to ensure a royalty free JVT Baseline Profile by the evaluation effort based on the patents now being submitted. First, there is a very substantial risk that the submitted list of patents is not complete. Second, an effort, undertaken to avoid the use of patent rights that are not available under royalty-free conditions, could well result in the use of other not yet identified patent rights. Both issues place at the end the so defined JVT Standard in an even much worse position when patents of not-involved companies start playing a role. (Id., Tab 74 at 435-36.) From this, Qual-comm was aware of the concern of JVT participant Philips that the H.264 standard would practice patents that had not yet been disclosed to the JVT and offered for licensing under royalty-free or reasonable and non-discriminatory terms. Furthermore, Philips closed its letter by stating, “In the interests of transparency Philips is copying this letter to members of the JVT Group, many of whom are licensees under the MPEG2 Video patents, in order to demonstrate Philips [sic] continued commitment to transparency and nondiscrimination in the licensing of IPR on standards.” (Id., Tab 74 at 436.) Therefore, while it is not apparent when Qual-comm received the copy of Philips’ letter, since Philips copied the letter to all JVT members, the Court concludes that Qual-comm probably received a copy not long after it was sent on June 21, 2002. The Court already found by clear and convincing evidence in its March 21 Order that JVT participants treated the JVT IPR policy as imposing a duty of disclosure for patents that reasonably might be necessary to practice the H.264 standard. Now, considering the new evidence produced late by Qualcomm post-trial, the Court FINDS by additional clear and convincing evidence that Qualcomm was aware of this treatment as early as August 2002. 4. The Court FINDS by clear and convincing evidence that Qual-comm had knowledge by early March 2002 that its Adaptive Block Size Transform (“ABT”) related patents, including the '104 and '767 patents, reasonably might be necessary to practice the H.264 standard In the Court’s March 21 Order finding in favor of Broadcom on its affirmative defense of waiver, the Court found by clear and convincing evidence that Qual-comm had knowledge that the T04 and '767 patents might reasonably be necessary to practice to H.264 standard as early as 2002 and July 2005 respectively. (Doc. No. 528 at 27.) With Qualcomm’s post-trial production of additional documents, the Court now FINDS by additional clear and convincing evidence that Qualcomm had knowledge as early as March 2002 that its ABT related patents, including the '104 and '767 patents, reasonably might be necessary to practice the H.264 standard. Qualcomm’s own witness Chong Lee, an inventor of both the '104 and '767 patents, testified at trial that the '104 and '767 patents related to ABT technology. Mr. Lee testified that his May 1992 paper “Intraframe Compression of HDTV Images Based on Adaptive Block Size Discrete Cosine Transform” described the '104 patent invention. (Trial Tr., 94, Jan. 10, 2007.) He stated that the paper “discusses the technology involved in both 104 and-104 that included ABS DCT [Adaptive Block Size Discrete Cosine Transform] and DQT [Differential Quadtree Transform]” and reiterated that the '104 patent describes “intraframe compression.” (Id. at 70, 94.) In contrast, Mr. Lee specified that the '767 patent describes “interframe compression.” (Trial Tr., 70, Jan. 10, 2007.) Mr. Lee testified: I approached the problem [addressed in the '767 patent] by using multiple block sizes in an adaptive fashion to solve theroblem of obtaining both quality and efficiency of the [video interframe] compression. (Id. at 107-08.) When asked whether the '767 patent approach was similar to ABS DCT, Mr. Lee responded: Yes. Exactly. Just like we were describing ABS DCT as adaptive block size technique that involves transforms on different block sizes, this technique involves adaptive block sizes by applying what’s called motion compensation, looking for similarities in large blocks versus small blocks. (Id.) (emphasis added.) Qualcomm recognized as early as March 2002 that its ABT related patents might be reasonably necessary to practice the H.264 standard. A report entitled “Report of activities for the last six months” and dated March 6, 2002, that was produced from Qualcomm’s records stated: Since our group is actively involved in the ITU, MPEG, and SMPTE standards meetings, we are looking into proposing some of the features of our ABSDCT compression algorithm to one of these standard bodies. I had the task of compiling the details of MPEG, JVT (Joint Video Team) and ABSDCT compression features. I reviewed the JVT draft and prepared a spreadsheet detailing the aspects of these algorithms. We haven’t had a chance to discus [sic] this yet. The purpose behind this is for us to decide whether our ABSDCT Intra and interframe algorithms will fit in the JVT scenario. (Doc. No. 543-2, Ex.A, Tab 11 at 96.) As stated above, the '104 patent deals with intraframe video compression, while the '767 patent deals with interframe video compression. From this report, Qualcomm demonstrates its awareness of the connection between these patents and the H.264 standard being developed by the JVT. On March 26, 2002, Qualcomm engineer Silberger sent an email to three Qualcomm employees, including Ms. Irvine and Jay Yun, with the subject heading “JVT ABS submission,” which stated: For several days now, Jay and myself have been looking at ways to incorporate our ABS into H.26L [another name for H.264] for submission in the JVT May Meeting. (Doc. No. 543-2, Ex. A, Tab 17 at 122) (emphasis added.) Clearly, Mr. Silberger is here acknowledging that Qualcomm’s adaptive block size technology is so related to the work being done in the JVT that it should be offered for incorporation into the developing H.264 standard. The next day on March 27, 2002, Mr. Yun responded to Mr. Silberger’s email, stating: After discussing JVT ideas with Amnon, I remembered that there were some recent proposals that have to do with variable block sizes. I re-read those proposals, Jordan’s report and our patents and come up with the following observations. (Id., Tab 20 at 131) (emphasis added.) Addressing JVT proposals already made by others to add an 8 x 8 transform, a 16 x 16 transform, and a 2 x 2 transform, Mr. Yun wrote: 1. [...] They are all integer transforms that mimic DCT. With these, perhaps we can recommend our variable block size scheme that is different than the proposal which only uses fixed-size sub-blocks for the entire 16x16 block (i.e., you can only have all 8 x8s, all 4 x 4s, all 8 x 4s or all 4 x 8s, etc.)? ... But Jordans’ report says that this adaptive block-size ideas will not be included in the baseline but in some high quality applications, so we may be able to prove that there is a significant gain in quality by using out [sic] scheme. (Id) (emphasis added.) Mr. Yun continued: 2. Our original patents mention DCT almost exclusively and says that it is for “pixel data.” Should we “extend” our patents to include all transforms and all data types (like residuals)? 3. We should go to all JVT meetings at least for the time being to be on top of their work on ABT, which Jordan says is brand new. 4. Similar to ideas in 1, we can use our interframe ABS patent and then either recommend BSA [sic ABS] for motion block size assignment/representation and/or attach or block JVT’s scheme for using variable block size for motion estimation (they use fixed size sub-blocks, though). (Id, Tab 20 at 131-32) (emphases added.) Both the '104 and '767 patents mention DCTs multiple times: in the claim language and repeatedly throughout every section of the '104 patent, and in the description of preferred embodiments in the '767 patent. (’104 patent; '767 patent.) Furthermore, as Mr. Lee explained at trial, the '767 patent describes interframe compression using adaptive block sizes. Then, in July 2002, Ms. Raveendran sent an email to Qualcomm JVT consultant Isailovic, in which she wrote: About patent reviews for JVT and studying ABT with respect to our patent, it was decided that we would like a summary of various aspects of ABT in JVT. There are a lot of details and if you can help narrow down the focus, that would be a good start. (Id, Tab 86 at 504) (emphasis added.) A few months later in November 2002, Qualcomm engineer Yun wrote an email with the subject heading “JVT slides,” stating that “monitoring ABT is of importance since there may be patent infringement issues related to ABSDCT.” (Id, Tab 102 at 600) (emphasis added.) Qualcomm engineer Silberger responded to Mr. Yun’s email on the same day, carbon copying Ms. Raveendran and writing, “One thing, didn’t we kind of conclude that they are not infringing our ABSDCT?” (Id, Tab 102 at 599.) This email exchange makes it clear that, prior to November 2002, Qualcomm had already given consideration to whether the H.264 standard in development would infringe Qualcomm’s ABS DCT patents, which include the '104 and '767 patents. This is further confirmed by the December 2002 document entitled “JVT 12/9-14/02 meeting goals, prioritized list,” in which the item “ABT” is followed by the question, “Is there a potential IPR issue with ABSDCT?” (Id, Tab 109 at 635) (emphasis added.) Then, in April 2003, Qualcomm employee Tom Kilpatrick sent an email to Viji Raveendran and another Qualcomm employee addressing a new “bi-weekly working engineering meeting.” (Id, Tab 118 at 673.) Mr. Kilpatrick wrote, “One of the things to be addressed in Viji’s meetings are progress on Digital Cinema patents vs JVT standard.” (Id) (emphasis added.) Qualcomm’s outside expert Dr. Iain Richardson testified at trial that Qualcomm designed a product implementing an audio compression system, the QDEC-1000, based on the '104 patent. (Trial Tr., 126-27, Jan. 11, 2007.) Qualcomm employee Irvine then confirmed through deposition testimony at trial that the QDEC-1000 was sold to “Technical or Digital Cinema.” (Trial Tr., 84-85, Jan. 18, 2007.) Therefore, Qaulcomm knew of a link between the 104 patent and the H.264 standard and set up bi-weekly meetings to “address” the issue in April 2003. This newly discovered evidence augments the already convincing evidence explicitly naming the '104 and '767 patents that the Court discussed in its March 21 Order, indicating Qualcomm’s knowledge of a link between those patents and the H.264 standard. Therefore, the Court FINDS by additional clear and convincing evidence that Qualcomm had knowledge that the '104 and '767 patents reasonably might be necessary to practice the H.264 standard as early as March 2002, well before the JVT released the H.264 standard in May 2003. At no time before the H.264 standard was initially published as adopted did Qualcomm reveal to the JVT or its parent bodies Qualcomm’s IPR, specifically the '104 and '767 patents. 5. The Court FINDS by clear and convincing evidence that Qual-comm intentionally organized a plan of action to shield the '104 and '767 patents from consideration by the JVT with the anticipation that (1) the resulting H.264 standard would infringe those patents and (2) Qualcomm would then have the opportunity to become an indispensable licensor to anyone in the world seeking to produce H.264-compliant products The Court has already found above and in its March 21 Order that Qualcomm waived its rights to enforce the '104 and '767 patents against Broadcom by its silence when it had a duty to speak before the JVT. However, faced with the additional evidence produced post-trial by Qual-comm, the Court concludes that the conduct of Qualcomm’s employees before trial, and its employees and hired witnesses during pre-trial, trial, and post-trial outlines misconduct even more extensive than the Court previously found in its March 21 Order. Merely the reiteration of the chronology of events above and below tells the story of the gravity of the conduct. The facts speak for themselves. The totality of the circumstances leads the Court to conclude by clear and convincing evidence that Qualcomm intentionally organized a plan of action to shield the '104 and '767 patents from consideration by the JVT with the anticipation that (1) the resulting H.264 standard would infringe those patents and (2) Qualcomm would then have an opportunity to be an indispensable licensor to anyone in the world seeking to produce an H.264-compliant product. The track of this conduct following the adoption of the H.264 standard exposes aggravated litigation abuse. This abuse commenced with Qualcomm’s abrupt commencement of suit, then continued (1) in discovery through Qualcomm’s constant stonewalling, concealment, and repeated misrepresentations concerning existing corporate documentary evidence that would have revealed the fullness of the corporate plan; and (2) in trial through Qualcomm’s presentation of numerous witnesses who steadfastly testified falsely denying even awareness, let alone participation in the JVT project and through the actions of Qualcomm’s lead and co-counsel up to the time Qualcomm substituted new lead counsel, who adamantly denied the obvious and then, when the truth was discovered and exposed by the document production, sequentially contended denial of relevance, justification, mistake, and finally non-awareness. a. Misconduct of Qualcomm, its employees, and its witnesses The Court FINDS by clear and convincing evidence that Qualcomm, its employees, and its witnesses actively organized and/or participated in a plan to profit heavily by (1) wrongfully concealing the patents-in-suit while participating in the JVT and then (2) actively hiding this concealment from the Court, the jury, and opposing counsel during the present litigation. (1) Misconduct before the JVT As established above, there is clear and convincing evidence that Qualcomm was aware of its duty to disclose the '104 and '767 patents to the JVT as early as 2002, well before the H.264 standard was published in May 2003. However, it was not until April 25, 2006, six months after the commencement of this lawsuit, that Qual-comm filed an IPR disclosure form with the ITU-T and ISO/IEC regarding the H.264 standard, declaring that Qualcomm “holds granted patents and/or pending applications, the use of which would be required to implement” the H.264 standard. (Pl’s Trial Ex. 36 at 3-4.) Even this disclosure did not identify any specific patent, let alone the '104 and '767 patents. The Court FINDS by clear and convincing evidence that Qualcomm and its employees orchestrated a plan to ignore Qual-comm’s duty to disclose these patents to the JVT, in order to become an indispensable licensor of the H.264 standard. Qualcomm employee Yun sent an email in March 2002 to Qualcomm colleagues Sil-berger, Ratzel, and Irvine, discussing the transform proposals before the JVT. (Doc. No. 543-2, Ex. A, Tab 20.) In it, Mr. Yun suggested “extending” Qualcomm’s patents in order to cover the standard being developed by the JVT: Our original patents mention DCT [discrete cosine transform] almost exclusively and says that it is for “pixel data”. Should we “extend” our patents to include all transforms and all data types (like residuals)? (Doc. No. 543-2, Ex. A, Tab 20 at 131.) He then advocated monitoring the JVT and its work in relation to Qualcomm’s patents: We should go to all JVT meeting at least for the time being to be on top of their work on ABT [adaptive block-size transform], which Jordan [Isailovic] says is brand new. (Id.) One month later in April 2002, Qual-comm engineer Silberger sent an email to Qualcomm colleagues Determan, Irvine, Raveendran, Yun, and Ratzel. (Doc. No. 543-2, Tab 38.) In it, he advocated “monitoring” the JVT “from a distance”: The JVT effort is mostly done for the physical layer, and going towards a committed draft in May. There is no indication that they are even looking at DC [Digital Cinema] applications. New technical suggestions are dealing mostly with better efficiency (reduced complexity) and file formats. We should monitor this from a distance. (Id., Tab 38 at 273.) Later, under the heading “Recommendations,” Mr. Silber-ger advised increasing Qualcomm’s monitoring of the JVT and refraining from making any submissions, which would include any potential patent disclosures, to JVT parent body MPEG: We should be monitoring MPEG meetings, especially regarding DC testings, and also sample the JVT and JPEG activities. We may pull in some other groups within Qualcomm to participate, since both H.26L [working name for what later became the H.264 standard] and JPEG2000 may both be promising for low date [sic] rates. At this point, I don’t see the need for submitting anything to MPEG. (Id., Tab 38 at 274.) Mr. Silberger then explicitly recommended “consider[ing] efficient ways for lobbying our technology in the appropriate forums.” (Id.) Later, in July 2002, Qualcomm engineer Raveendran sent an email to Qualcomm consultant Isailovic stating, “About patent reviews for JVT and studying ABT with respect to our patent, it was decided that we would like a summary of various aspects of ABT in JVT.” (Id., Tab 86 at 504.) From Ms. Raveendran’s use of the phrase “it was decided,” the Court concludes that Qualcomm held meetings to decide strategy as to how to monitor the JVT with respect to Qualcomm’s patents. Ms. Ra-veendran then conceded to Mr. Isailovic, “There are a lot of details and if you can help narrow down the focus, that would be a good start.” (Id.) This monitoring and reporting on the activities of the JVT with respect to Qual-comm’s patents without disclosure of these patents continued through the release of the H.264 standard in May 2003 and Qual-comm’s filing of this patent infringement suit in October 2005 against Broadcom as to the '104 and '767 patents. (Doc. No. 543-2, Ex. A.) Qualcomm filed this suit (1) based on the theory that the patents-in-suit cover the H.264 standard and therefore Broadcom’s H.264-compliant products and (2) long before any disclosure of these two patents to the JVT or its parent organizations and without any offer to license its patents to Broadcom or to JVT members. In combination with the above evidence presented to the Court as to Qualcomm’s participation in the JVT and Qualcomm’s knowledge that the '104 and '767 patents reasonably might be necessary to practice the H.264 standard, the Court FINDS by clear and convincing evidence that Qualcomm and its employees organized and attempted to execute a plan to actively conceal its patents from the JVT in order to later become an indispensable licensor to those practicing the H.264 standard. This plan, of course, deprived the JVT of the opportunity to attempt to design around the '104 and '767 patents in developing the H.264 standard. (2) Misconduct during the present litigation The Court’s finding as to Qualcomm’s wrongful conduct is further supported by evidence of widespread and undeniable misconduct of Qualcomm, its employees, and its witnesses throughout the present litigation, including during discovery, pretrial motions-practice, trial, and post-trial proceedings. (a) Christine Irvine For example, staff engineer Christine Irvine, Qualcomm’s original Federal Rule of Civil Procedure 30(b)(6) witness testified at trial through her July 6, 2006, deposition that Qualcomm did not attend any JVT meetings: Q Are you the person at Qualcomm most knowledgeable about attend-anee or participation by any Qual-comm principal, employee or representative at any H.264 standards committee meetings? AI believe I am. Q Are you the person at Qualcomm most knowledgeable about Qual-comm’s knowledge regarding the development of the H.264 standard? AI believe I am. Q And are you the person at Qual-comm most knowledgeable about any actions taken by Qualcomm or any of its principals, employees or representatives as a result of Qual-comm’s knowledge regarding the development of the standard? AI believe I am. Q Is Qualcomm a member of the JVT? A No, Qualcomm is not. Q Has Qualcomm ever attended any meetings of the JVT? A Qualcomm is not aware of any attendance to any JVT meetings. Q Has Qualcomm ever hosted any meeting of the JVT? A Qualcomm’s not aware of hosting a JVT meeting. Q Okay. Has Qualcomm made any submissions to the JVT? A No, Qualcomm has not made any submissions to the JVT that Qualcomm is aware of. Q When did Qualcomm first become aware of the development of the H.264 standard? A Approximately 2001 in trade journals. (Trial Tr., 79-81, Jan. 18, 2007.) The falsity of Ms. Irvine’s testimony is now revealed as blatant. As detailed above at length, Qualcomm produced over one hundred emails post-trial related to Qualcomm’s participation in the JVT and attendance of JVT meetings, the vast majority of which were received or sent by Ms. Irvine. (Doc. No. 543-2, Ex. A.) For example, in February 2002, Ms. Irvine received by email Qualcomm consultant Isai-lovic’s report on the January/February 2002 JVT meeting in Geneva, which Mr. Isailovic also sent to Qualcomm employees Ratzel and Silberger. (Doc. No. 543-2, Ex. A, Tab 4 at 74.) Two days later, Ms. Irvine forwarded Mr. Isailovic’s report to six Qualcomm employees, including Ms. Raveendran, Mr. Determan, Mr. Silberger, and Mr. Yun. (Id., Tab 5.) In May 2002, Ms. Irvine received a three-page report on the May 2002 JVT meeting in Fairfax from Qualcomm colleague Yun, which was also sent to other Qualcomm employees including Amnon Silberger, Mr. Ratzel, and Ms. Raveendran. (Id., Tab 57 at 361-63.) In that email, Mr. Yun explicitly stated, “I’ve attended some JVT meetings and saw some demo (so did Amnon).” (Id., Tab 57 at 361.) (b) James Determan Similar to Ms. Irvine, Qualcomm employee James Determan gave deposition testimony that is belied by the documents Qualcomm produced post-trial. In his August 2006 deposition, Mr. Determan testified that he did not know if Qualcomm was a member of the JVT and that he did not believe he was personally a member of the JVT: Q Do you know if Qualcomm is a member of the JVT? MR. LEUNG: Objection. Calls for speculation. THE WITNESS: I do not know. BY MS. HUNT: Q Are you personally a member of the JVT? AI do not believe so. (Doc. No. 543-2, Ex. S at 27.) However, in conflict with this testimony, Mr. Determan received an email in January 2004 from Qualcomm colleague Laura Chiu with the subject title “FW: JVT Membership Renewal.” (Doc. No. 543-2, Ex. A, Tab 128 at 727.) In that email, which was also sent to five other Qual-comm employees including Viji Raveendran, Amnon Silberger, Rick Kane, and Seyfullah Oguz, Ms. Chiu wrote: Please let me know if you are still interested in being a JVT member. Rick, would it be ok to make Viji the principal? I will be processing payment for MediaFLO members: Viji, Amnon and peyfullah. (Id.) (emphasis added.) Attached to the end of Ms. Chiu’s email was a forwarded email with the same subject heading. In that forwarded email thread, Ms. Chiu first wrote to Parthenia Purcell, Associate Manager of Membership Services for the Information Technology Industry Council (“ITIC”): When you have the chance, please send me the invoices for JVT membership renewal for Viji Raveendrand [sic] (Principal), Amnon Silberger (Alternate), and an application for Seyfullah Oguz (new member). (Id., Tab 128 at 730) (emphasis added.) Ms. Purcell forwarded Ms. Chiu’s request to add new member Qualcomm employee Oguz to Lynn Barra, Associate Director of Information Technology Industry Standards Operations, who replied to Ms. Chiu as follows: Prior to making any changes to the Qualcomm membership, we would like to verify the information we have on file with you. Below is the current member information we have in our database. Rick Kane — principal ($800) Amnon Silberger — alternate (free, included with principal membership) Hari Garudadri — additional alternate ($800) Jim Determan — additional alternate ($800) Viji Raveendran — additional alternate ($800) (Id., Tab 128 at 728) (emphases added.) Moreover, Mr. Determan received many of the emails discussed above, which included JVT meeting reports from Qual-comm employees and consultant Isailovic as well as discussion of Qualcomm monitoring of the JVT. Therefore, the Court can only conclude that, at the time of Mr. Determan’s August 2006 deposition, he was fully aware that (1) Qualcomm was heavily involved with the JVT since as early as January 2002 and (2) as recently as 2004, Qualcomm was still a paying member of the JVT and so was Mr. Deter-man as a Qualcomm representative. Mr. Determan also testified in his August 2006 deposition that he did not recall ever attending a JVT meeting nor was he aware of any Qualcomm employee attending any: Q Have you ever attended any meeting of the JVT? A Not that I recall. Q Do you know of any Qualcomm employees that have attended JVT meetings? MR. LEUNG: Objection. Calls for speculation. THE WITNESS: Not that I’m aware. (Doc. No. 543-2, Ex. S at 27.) However, Qualcomm’s post-trial production of documents reveals that, not only was Mr. De-terman aware that Qualcomm employees had attended JVT meetings, but Mr. Determan probably attended some himself. Qualcomm employee Silberger wrote in an April 2002 email: We have been attending these standard body meetings for a while now. There are the MPEG/JVT/JPEG meetings and the SMPTE meetings. To ease the load, all the system engineers in our group rotate in attending these (Chris, Jay, Viji, Jim Determan and myself.) (Doc. No. 543-2, Ex. A, Tab 44 at 306.) Mr. Determan also received five emails from Qualcomm colleagues Yun and Silberger with daily reports from their attendance of the May 2002 JVT meeting in Fairfax, Virginia. (Id, Tabs 56-60.) Mr. Determan then testified at his August 2006 deposition that he did not know when any JVT meetings took place nor did he recall ever hearing reports of any JVT meetings: Q Do you know when any of the JVT meetings took place? A No. Q Have you ever heard any reports, whether via email or written report or any discussion, of what occurred at any JVT meeting? A Not that I recall. (Doc. No. 543-2, Ex. S at 29.) However, in contrast to this testimony, as stated above, Mr. Determan received multiple reports of the May 2002 JVT meeting in Fairfax. (Doc. No. 543-2, Ex. A, Tabs 56-60.) He also “rotated” attending MPEG/ JVT/JPEG and SMPTE standard body meetings with the other engineers in his group, Mr. Silberger, Mr. Yun, Ms. Ra-veendran, and Ms. Irvine. (Id, Tab 44 at 206.) Furthermore, in February 2002, he received Qualcomm consultant Isailovic’s report of the January 2002 JVT meeting in Geneva forwarded to him by Qualcomm colleague Irvine. (Id, Tab 5.) (c) Viji Raveendran In addition to her colleagues Ms. Irvine and Mr. Determan, Qualcomm trial witness and senior staff engineering manager Viji Raveendran also gave testimony at deposition and trial that was later blatantly contradicted by Qualcomm’s post-trial document production. Ms. Raveendran testified in her July 2006 deposition that she did not even learn of the JVT until 2003 through journals and publications: Q. [ ] Referring only to the Joint Video Team that developed the H.264 standard, when did you first learn of the Joint Video Team that developed the H.264 standard? A. Somewhere in the 2003 time frame. Q. How did you learn of it? A. Through literature. Q. What literature? A. Basically journals and video processing related— THE REPORTER: Related what? THE WITNESS: Journals and publications, basically publications. (Doc. No. 543-2, Ex. P at 36-37.) However, the evidence produced by Qualcomm post-trial reveals that Ms. Raveendran knew of the JVT as early as February 2002 through reports on JVT meetings from Qualcomm consultant Isailovic, not through “journals and publications” in “the 2003 time frame” as she testified. Qualcomm produced post-trial almost one hundred emails and JVT meeting reports Ms. Raveendran either received or sent in 2002 addressing JVT’s work and its relation to Qualcomm. (Id, Tabs 5-111.) For example, in February 2002, Ms. Raveendran received Qualcomm consultant Isailovic’s report on the January 2002 JVT Meeting in Geneva in an email forwarded by Qualcomm colleague Irvine. (Doc. No. 543-2, Tab 5.) Furthermore, Ms. Raveendran sent many emails herself to other Qualcomm employees regarding the JVT, including her February 2002 email to Mr. Yun and Ms. Irvine, in which she says, “Chris is going to the JVT mtg. and will be driving tomorrow. We will meet at Starbucks off Jefferson Rd. exit on 1-78 (off of 1-5) at 11:30 a.m.” (Id, Tab 8 at 88.) Later in her deposition, Ms. Raveendran testified that she did not know of nor did she receive a report of the JVT meeting (1) in January 2002 in Geneva, Switzerland; (2) in May 2002 in Fairfax, Virginia; (3) in August 2002 in Klagenfurt, Austria; (4) in October 2002 in Geneva, Switzerland; (5) in December 2002 in Awaji Island, Japan; and (6) in September 2003 in San Diego, California. (Id. at 41-44.) In direct contradiction to her testimony, Qual-comm’s post-trial production of documents reveal that Ms. Raveendran did in fact receive (1) a report of the January 2002 JVT meeting in Geneva (Doc. No. 543-2, Tab 5); (2) many emails discussing and reporting on the May 2002 JVT meeting in Fairfax, including at least one sent by Ms. Raveendran herself (Id., Tabs 18, 22, 25, 32, 35, 36, 41, 56-61); (3) emails discussing the August 2002 JVT meeting in Klagenfurt, including ones forwarding documents registered for the Klagenfurt meeting “[p]er your request, Viji” and forwarding lists of Klagenfurt meeting registrants under “Viji, [t]his is for you” (Id., Tabs 54, 69, 80 at 468, 82, 84 at 492); (4) emails discussing the October 2002 JVT meeting in Geneva, including one from Ms. Raveendran herself (Tabs 54, 97); (5) an email mentioning the December 2002 JVT meeting on Awaji Island (Doc. No. 100); and (6) an email mentioning the September 2003 JVT meeting in San Diego (Doc. No. 123). Later in her July 2006 deposition, Ms. Raveendran testified that she did not know of any JVT IPR policy: Q. Does the JVT have a policy regulating intellectual property rights? A. I don’t know of that. (Doc. No. 543-2, Ex. P at 76.) However, again, documents produced by Qualcomm post-trial tell a different story. Ms. Raveendran forwarded an email to two Qualcomm colleagues in October 2002 with the subject heading “Fwd: [jvt-ipr] Confirmation of JVT IPR meeting in Geneva.” (Doc. No. 543-2, Ex. A, Tab 97 at 567.) In that email, she wrote, “FYI. Some information on licensing issues and IPR in JVT.” (Id.) The forwarded email included a suggested meeting agenda: 1) short summary of the IPR status in JVT 2) potential licensing models, examples and wishes: MPEG-4, other 3) (ongoing) determination of essential patent holders 4) expected process once essential patent holders are identified 5) involvement of licensees and the role of this “JVT-IPR group” (Id., Tab 97 at 568.) Therefore, Ms. Ra-veendran was aware that the JVT wanted to identify “essential patent holders” and was developing licensing models to regulate IPR. Then in November 2002, Ms. Raveen-dran wrote an email to three Qualcomm employees, including Mr. Yun and Mr. Silberger, in which she wrote, “Attached is the Patent list Statement on MPEG. Part 10 covers JVT (under AVC, that’s how JVT is referred to in MPEG world).” (Id., Tab 101 at 590.) Jay Yun then sent out an email in response to a question as to the completeness of Ms. Raveendran’s list: Initially JVT set out to come up with a royalty-free baseline profile. Many submitted their technologies knowing that this is going to be the case, or some even withheld their submissions into the Baseline profile because they